WORLD TRADE
ORGANIZATIONWT/DS135/R
18 September 2000
(00-3353)
EUROPEAN COMMUNITIES –
MEASURES AFFECTING ASBESTOS AND ASBESTOS –
CONTAINING PRODUCTS
Report of the Panel
The report of the Panel on European Communities – Measures Affecting Asbestos and Asbestos –
Containing Products  is being circulated to all Members, pursuant to the DSU.  The report is being
circulated as an unrestricted document from 18 September 2000 pursuant to the Procedures for the
Circulation and Derestriction of WTO Documents (WT/L/160/Rev.1).  Members are reminded that in
accordance with the DSU only parties to the dispute may appeal a panel report.  An appeal shall be
limited to issues of law covered in the Panel report and legal interpretations developed by the Panel.
There shall be no ex parte  communications with the Panel or Appellate Body concerning matters
under consideration by the Panel or Appellate Body.
Note by the Secretariat:  This Panel Report shall be adopted by the Dispute Settlement Body (DSB) within 60 days after the
date of its circulation unless a party to the dispute decides to appeal or the DSB decides by consensus not to adopt the report .
If the Panel Report is appealed to the Appellate Body, it sha ll not be considered for adoption by the DSB until after the
completion of the appeal.  Information on the current status of the Panel Report is available from the WTO Secretariat.WT/DS135/R
Page i
TABLE OF CONTENTS
Page
I. INTRO DUCTION ................................................................................................................. ...1
II. FACTUAL ASPECTS ............................................................................................................. .3
A. B ASIC DATA CONCERNING ASBESTOS .........................................................................................3
B. D ECREE NO. 96-1133 OF 24 D ECEMBER 1996 BANNING ASBESTOS ...........................................3
III. ARGUMENTS OF THE PARTIES ........................................................................................5
A. CLAIMS BY THE PARTIES ..............................................................................................................5
B. FACTUAL ARGUMENTS ................................................................................................................6
1. Introductory  remarks......................................................................................................... ......6
2. Economic and trade data...................................................................................................... ..10
3. French legislatio n in its context ............................................................................................ .12
4. Circumstances of exposure to asbestos and asbestos-related pathologies .........................22
5. “Controlled” or “safe” use of chrysotile asbestos ................................................................53
6. Substitute fibres  for chrysotile............................................................................................. ..72
7. The INSERM report............................................................................................................ ...86
C. LEGAL ARGUMENTS ...................................................................................................................98
1. Agreement on Technical Barriers to Trade (“TBT” Agreement) ......................................99
(a) Applicability of th e TBT Agreement........................................................................................99
(b) Article 2.1 of th e TBT Agreement..........................................................................................10 6
(c) Article 2.2 of th e TBT Agreement..........................................................................................10 8
(i) Legitimate objective........................................................................................................ ........108
(ii) “For this purpose, technical regulations shall not be more trade-restrictive than
necessary to fulfil a legitimate objective, taking account of the risks non-fulfilment
would create …” (Artic le 2.2, second sentence).....................................................................109
(d) Article 2.4 of th e TBT Agreement..........................................................................................13 5
(e) Article 2.8 of th e TBT Agreement..........................................................................................14 6
2. General Agreement on Tariffs and Trade (GATT) ...........................................................147
(a) Applicability of Article III and/ or Article XI of the GATT....................................................147
(b) Article III:4 of the GATT ................................................................................................... ....152
(i) Application of Article III:4 of the GATT.................................................................................152
(ii) The concept of  “like products”............................................................................................. ..153
(iii) Imported products … shall not be subj ect to less favour able treatment.................................168
(c) Article XI of the GATT ...................................................................................................... ....171
(d) Article XX(b) of the GATT ................................................................................................... .174
(i) Nature of Article XX and the burden of proof.........................................................................174
(ii) Policy to prot ect human health............................................................................................. ..175WT/DS135/R
Page ii
(iii) “… necessary to protec t human health and life …”...............................................................175
(iv) Preamble to Article XX ..................................................................................................... ......182
(e) Article XXIII:1(b) of the GATT .............................................................................................1 84
IV. ARGUMENTS PRESENTED BY THIRD P ARTIES.......................................................194
A. B RAZIL ............................................................................................................................... .....194
1. Introduction................................................................................................................. ..........194
2. Factual Aspects .............................................................................................................. .......197
3. Legal Aspects................................................................................................................ .........203
(a) The Agreement on Technical  Barriers to  Trade......................................................................203
(i) Article 12 of the TBT Agreement ............................................................................................2 03
(ii) Article 2.2 of the TBT Agreement ........................................................................................... 203
(iii) Article 2.4 of th e TBT Agreement .......................................................................................... .208
(iv) Article 2.8 of the TBT Agreement ........................................................................................... 209
(b) The General Agreement on Tariffs and Trade........................................................................210
(i) Article XI of the GATT ...................................................................................................... ......210
(ii) Article III of the GATT and Arti cle 2.1 of the TBT Agreement...............................................210
(iii) Article I of the GATT and Arti cle 2.1 of the TBT Agreement..................................................211
(iv) Article XX of the GATT..................................................................................................... ......212
B. U NITED STATES .......................................................................................................................212
1. Introduction................................................................................................................. ..........212
2. Factual Aspects .............................................................................................................. .......213
3. Legal Aspects................................................................................................................ .........220
(a) The General Agreement on Tariffs and Trade........................................................................220
(i) Article XI of the GATT ...................................................................................................... ......220
(ii) Article III of the GATT.................................................................................................... ........220
(iii) Article XXIII:1 (b) of the GATT............................................................................................ ...221
(b) The Agreement on Technical  Barriers to  Trade......................................................................222
(i) Article 2.1 of the TBT Agreement ...........................................................................................2 23
(ii) Article 2.2 of the TBT Agreement ........................................................................................... 223
(iii) Article 2.4 of th e TBT Agreement .......................................................................................... .224
C. Z IMBABWE ..............................................................................................................................2 24
1. Introduction................................................................................................................. ..........224
2. Factual Aspects .............................................................................................................. .......225
3. Legal Aspects................................................................................................................ .........228
(a) The Agreement on Technical  Barriers to  Trade......................................................................228
(b) The General Agreement on Tariffs and Trade........................................................................231WT/DS135/R
Page iii
(i) Article III of the GATT..................................................................................................... .......231
(ii) Article XX of the GATT..................................................................................................... ......233
V. PANEL'S CONSULTA TION WITH SCIENT IFIC EXPERTS ......................................236
A. DETERMINATION OF THE PROCEDURE .....................................................................................236
B. S ELECTION OF EXPERTS ..........................................................................................................244
C. QUESTIONS BY THE PANEL AND COMMENTS BY THE SCIENTIFIC EXPERTS .............................245
1. Introductory Comments by Dr. Henderson .......................................................................245
(a) Intr oduction................................................................................................................ .............245
(b) Malignant mesothelioma – Introduction and general observations on asbestos and
mesothelioma ................................................................................................................... .......246
(c) Spontaneous or background meso thelioma:  does  it exis t?.....................................................252
(d) Magnitude of the me sothelioma problem ...............................................................................254
(e) Some general observations on approaches to risk assessment on society and on
epidemiological studies of asbestos-related cancers...............................................................255
(f) General observations on induction of mesothelioma by asbestos, especially the
amphibole varieties of asbestos su ch as crocidolit e and amosite............................................259
(g) Commercial Chrysotile a nd Mesothelioma  Induction ............................................................266
(h) Other Chrysotile-Exposed  Cohorts and Studies......................................................................270
(i) Abestos and Lung Cancer ..................................................................................................... ..274
(j) Some General Observations on Experiment al Models of Asbestos Carcinogenesis,
including in vivo  and in vitro  Systems....................................................................................282
2. Questions by the Panel and Comments by the Scientific Experts ....................................284
3. Summary Comments by Dr. Henderson.............................................................................336
4. Endnote by Dr. Henderson...................................................................................................33 9
D. COMMENTS BY THE PARTIES ON THE RESPONSES FROM THE EXPERTS ....................................340
1. Canada ....................................................................................................................... ............340
2. The European Communities ................................................................................................370
E. S UPPLEMENTARY REMARKS FROM DR . HENDERSON ..............................................................372
1. Concerning the comments from the European Communities ..........................................372
2. Concerning the commen ts from Canada ............................................................................372
(a) Lung cancer rate among South Carolina (Charleston) chrysotile textile workers versus
the Quebec chrysotile  miners/m illers ......................................................................................375
(b) The question of a threshold for the carcinogenicity of chrysotile (lung cancer and
mesothelioma ................................................................................................................... .......380
(c) The feasibility in practice  of "controlled use" of  chrysotile asbestos.....................................381
(d) Are substitute fibres safer than ch rysotile ?.............................................................................384
(e) Summary..................................................................................................................... ............388
VI. SUBMISSIONS FROM NON-GO VERNMENTAL ORG ANIZATIONS ......................390WT/DS135/R
Page iv
VII. INTERIM  REVI EW............................................................................................................. 391
A. INTRODUCTION ........................................................................................................................391
B. COMMENTS BY CANADA ..........................................................................................................391
C. COMMENTS BY THE EUROPEAN COMMUNITIES .......................................................................393
VIII. FINDINGS.................................................................................................................. ...........395
A. SUMMARY OF THE FACTS AT THE ORIGIN OF THIS DISPUTE AND CLAIMS BY THE
PARTIES ............................................................................................................................... ....395
1. Measure at the origin  of the dispute....................................................................................395
2. Main claims by the parties ................................................................................................... 397
(a) Main claims  by Canada....................................................................................................... ....397
(b) Main claims by the European Communities...........................................................................397
B. ISSUES ON WHICH THE PANEL HAD TO TAKE A POSITION DURING THE PROCEDURE ...............397
1. Introduction................................................................................................................. ..........397
2. Consultation of experts...................................................................................................... ...398
3. Amicus curiae  briefs..............................................................................................................399
C. ORDER IN WHICH THE PANEL EXAMINED THE CLAIMS ............................................................400
D. APPLICABILITY OF THE TBT AGREEMENT TO THE DECREE ......................................................401
1. Arguments of the parties and approach adopted by the Panel.........................................401
(a) Arguments of the parties concerning the applicability of the TBT Agreement to the
Decree ......................................................................................................................... ............401
(b) Approach followed by the Panel.............................................................................................4 02
(i) Criteria for the applicati on of the TBT Agreement.................................................................402
(ii) Differentiation among the prohibit ions as such and the exceptions.......................................403
2. Is the Decree a technical regulation with in the meaning of the TBT Agreement? .........404
(a) Examination of the part of the Decree prohibiting the marketing of asbestos and
asbestos-containing products ..................................................................................................4 04
(i) Preliminary remarks ......................................................................................................... ......404
(ii) Anal ysis................................................................................................................... ................405
Ordinary meaning of the terms in the definition in Annex 1 to the TBT Agreement............................ 405
Object and purpose............................................................................................................. ................... 406
Context ........................................................................................................................ .......................... 408
(iii) Additional argum ents by Canada ...........................................................................................4 10
(b) Analysis of exceptions and the effect of the type of exceptions on the findings
concerning prohibi tions ........................................................................................................ ..411
(i) The exceptions in the Decree c onstitute technica l regulations...............................................411
(ii) Effect of the legal characterization of the exceptions on the legal characterization of
the prohi bitions............................................................................................................... ........412
3. Conclusion ................................................................................................................... ..........413WT/DS135/R
Page v
E. A PPLICATION OF THE GATT 1994 TO THE DECREE ..................................................................413
1. Preliminar y questions........................................................................................................ ...413
(a) The effect of practice with in the GATT 1947 and the WTO..................................................413
(b) Burden of proof............................................................................................................. ..........414
(c) Application of Article III:4 and/or  Article XI of the GATT 1994..........................................415
(i) Question before the Panel................................................................................................... ....415
(ii) Anal ysis................................................................................................................... ................415
2. Violation of Article III of the GATT 1994 ..........................................................................419
(a) Arguments of  the parties.................................................................................................... .....419
(b) Issues raised in connection with the arguments of the parties relating to Article III:4
of the GATT 1994............................................................................................................... ....420
(c) The Panel's approach to product-by-product analysis and certain specific aspects of
the burden of proof. ........................................................................................................... .....420
(d) Analysis of  likeness ........................................................................................................ ........422
(i) Introductory remarks ........................................................................................................ ......422
(ii) Likeness of asbestos fibr es and substitu te fibre s.....................................................................423
Properties, nature and quality of the products ................................................................................. ...... 423
End-use........................................................................................................................ .......................... 427
Consumers' tastes and habits ................................................................................................... .............. 427
Tariff classi fication.......................................................................................................... ...................... 428
Conclusion..................................................................................................................... ........................ 429
(iii) Likeness between products containing asbestos and certain other products .........................429
(e) Less favourable treatmen t of Canadian products....................................................................430
(f) Conclu sion .................................................................................................................. ............431
3. Violation of Article XI of the GATT 1994 ..........................................................................431
4. Applicability of Article XX of the GATT 1994...................................................................432
(a) Arguments of  the parties.................................................................................................... .....432
(b) Approach adopted by the Pa nel and burden of proof..............................................................433
(i) Introductory remarks concerning the approach adopted by the Panel ..................................433(ii) Burden of proof............................................................................................................ ...........435
General cons iderations ......................................................................................................... ................. 435
Considerations specific to the burden of pr oof as regards the scientific aspects................................... 435
(c) Application of Article XX(b) of  the GATT 1994 to the Decree.............................................436
(i) "Protection of hum an life and health" ....................................................................................436
(ii) "Nece ssary"................................................................................................................ .............440
The ban on chrysotile asbest os in its va rious forms ............................................................................ .. 440
Recourse to substitute fibres and products ..................................................................................... ....... 445WT/DS135/R
Page vi
(d) Application of the introductory clause (chapeau) of Article XX of the GATT 1994 to
the application of the Decree .................................................................................................. 446
(i) "Means of arbitrary or unjustifiable discrimination between countries where the same
conditions prevail"............................................................................................................ ......446
(ii) "Disguised restriction on internationa l trade" .......................................................................448
5. Conclusion ................................................................................................................... ..........450
F. ALLEGATION OF NULLIFICATION OR IMPAIRMENT OF A BENEFIT UNDER
ARTICLE XXIII :1(b) OF THE GATT 1994 ...................................................................................450
1. Arguments of the parties..................................................................................................... .450
2. Analysis by the Panel........................................................................................................ ....452
(a) Prelimina ry issues.......................................................................................................... .........452
(i) Questions before the Panel .................................................................................................. ...452
(ii) The EC's argument according to which the rules on non-violation nullification apply
only if the measure in question does not fall under other provisions of the GATT.................454
(iii) The EC's argument according to which there cannot be a "legitimate expectation" in
the case of a measure that concerns  the protection of human health. ....................................456
(b) Examination of the substantial aspects of Canada's arguments under
Article XXIII:1(b) of the GATT 1994 ....................................................................................458
(i) Burden of proof............................................................................................................. ..........458
(ii) Examination of  the conditions .............................................................................................. ..459
(c) Conclu sion .................................................................................................................. ............464
IX. CONCL USIONS ................................................................................................................. ..465WT/DS135/R
Page 1
I. INTRODUCTION
1.1 In a communication dated 28 May 1998, Canada requested consultations with the
European Communities (EC) pursuant to Article XXII of the General Agreement on Tariffs and Trade
(GATT), Article 11 of the Agreement on the Application of Sanitary and Phytosanitary Measures
(SPS Agreement) and Article 14 of the Agreement on Technical Barriers to Trade (TBT Agreement),concerning certain measures taken by France for the prohibition of asbestos and products containing
asbestos (WT/DS135/1 – G/SPS/GEN/72 – G/TBT/D/15 ).  Canada’s request states that these
measures include, but are not limited to, Decree No. 96-1133 of 24 December 1996 (the “Decree”)
banning asbestos, issued pursuant to the Labour Code and the Consumer Code, as amended.  On
12 June 1998, Brazil asked to take part in the consultations because of its substantial trade interest
(WT/DS/135/2).
1.2 In a communication dated 8 October 1998, Canada informed the Dispute Settlement Body
(DSB) that the consultations held with the EC had failed to resolve the dispute satisfactorily.
Consequently, Canada requested the DSB to establish a panel to examine the French measure
concerning the prohibition of asbestos and products containing asbestos.  In its communication,
Canada claimed that the Decree, as well as any other measure which Canada might indicate, were
inconsistent with Articles 2 and 5 of the SPS Agreement, Article 2 of the TBT Agreement, Articles III
and XI of the GATT 1994, and, under Article XXIII:1(b) of the GATT 1994, nullified or impaired
one or several advantages accruing to Canada directly or indirectly under the WTO Agreement or
impeded the attainment of an objective of the Agreement owing to the fact that the banning of
asbestos by France was applied whether or not it conflicted with the Agreement (WT/DS/135/3).
1.3 At its meeting held on 25 November 1998, the DSB established a panel pursuant to Canada’s
request.  At that meeting, the parties to the dispute agreed that the Panel should have the following
terms of reference:
“To examine, in the light of the relevant provisions of the covered agreements cited by Canada in
document WT/DS135/3, the matter referred to the DSB by Canada in that document and to make suchfindings as will assist the DSB in making the recommendations or in giving the rulings provided for in
those agreements".
1.4 On 29 March 1999, the parties to the dispute agreed that the Panel would be constituted as
follows (WT/DS135/4):
Chairman:  Mr. Adrian Macey;
Members:  Mr. William Ehlers;
     Mr. Åke Lindén.
1.5 Brazil, the United States and Zimbabwe reserved their rights as third parties to the dispute, in
accordance with Article 10 of the Dispute Settlement Understanding.
1.6 The Panel met with the parties on 1 and 2 June 1999 and with third parties on 2 June 1999.  A
meeting with scientific experts was held on 17 January 2000.  The second substantive meeting with
the parties was held on 20 January 2000.
1.7 In a communication dated 27 September 1999, the Chairman of the Panel informed the DSB
that the Panel was unable to present its report within the six-month period provided in Article 12.8 of
the Memorandum of Understanding.  The reasons for the delay are set out in document WT/DS/135/5.
In two subsequent communications dated 7 March 2000 and 28 June 2000 respectively, the Chairman
of the Panel informed the DSB that the Panel would require more time to complete its report
(WT/DS135/6 and WT/DS135/7).WT/DS135/R
Page 2
1.8 The Panel transmitted its interim report to the parties on 13 June 2000.  Its final report was
submitted to the parties on 25 July 2000.
____________________WT/DS135/R
Page 3
II. FACTUAL ASPECTS
A. BASIC DATA CONCERNING ASBESTOS
2.1 Asbestos is a “fibrous mineral of hydrated silicates”1 which can be divided into two groups:
amphiboles and serpentine.  There are five va rieties of asbestos within the amphibole group:
anthophyllite, amosite (or brown asbestos), crocidolite (or blue asbestos), actinolite, and tremolite.The serpentine group comprises only chrysotile (or white asbestos).  These varieties of asbestos have
different physical and chemical properties.
2.2 It is mainly amosite, crocidolite and chrysolite which are exploited for industrial and
commercial purposes.  The special qualities of asbestos fibres (for example, resistance to very high
temperatures and to different types of chemical attack) due to their particular physical and chemical
properties have meant that they have been put to many uses, for example, for the manufacture ofindustrial and consumer products and in the building industry.
B. D
ECREE NO. 96-1133 OF 24 D ECEMBER 1996 BANNING ASBESTOS
2.3 On 24 December 1996, the French Government adopted Decree No. 96-1133 banning
asbestos, issued pursuant to the Labour Code and the Consumer Code ( décret no. 96-1133 relatif à
l’interdiction de l’amiante, pris en application du code de travail et du code de la consommation )
(hereinafter “the Decree”)2.  The Decree entered into force on 1 January 1997.  The following are its
principal provisions:
2.4 Article 1 provides for a ban on asbestos in the following terms:
“I. – For the purpose of protecting workers, […] the manufacture, processing, sale, import, placing on
the domestic market and transfer under any title whatso ever of all varieties of asbestos fibres shall be
prohibited, regardless of whether these substances have been incorporated into materials, products ordevices.
II. – For the purpose of protecting consumers, […] the manufacture, import, domestic marketing,
exportation, possession for sale, offer, sale and tran sfer under any title whatsoever of all varieties of
asbestos fibres or product containing asbestos fibres shall be prohibited […].”
2.5 Article 2 of the Decree allows some exceptions to the ban in Article 1.
“I. – On an exceptional and temporary basis, the bans instituted under Article 1 shall not apply to
certain existing materials, products or devices containing chrysotile fibre when, to perform anequivalent function, no substitute for that fibre is available which:
- On the one hand, in the present state of scientific knowledge, poses a lesser occupational
health risk than chrysotile fibre to workers handling those materials, products or devices;
- on the other, provides all technical guarantees of safety corresponding to the ultimate purpose
of the use […].”
2.6 The exceptions allowed are the subject of an exhaustive list prescribed by the French
authorities and reviewed annually (Article 2.II).  Any exception under Article 2 must be the subject of
a declaration by the head of the business establishment, the importer or the party responsible for
domestic marketing of a product covered by Article 2;  the purpose of the declaration is to be able to
                                                     
1 Petit Robert 1 , Dictionary of the French language.
2 Journal officiel  of 26 December 1996.  See Annex I to this report.WT/DS135/R
Page 4
determine that the activity to which it refers meets the criteria set out in the first paragraph of the
Article, taking into account scientific and technological progress (Article 3).
2.7 Article 4 contains requirements on the levels of exposure to be respected when manufacturing
or processing products covered by Article 23, as well as their labelling and marking.4  Article 5 lays
down penalties (fines) for breaches of the Decree’s provisions.
____________________
                                                     
3 In connection with this aspect, Article 4 refers back to Decree No. 96-98 of 7 February 1996 on the
protection of workers against risks linked to inhaling asbestos dust ( Journal officiel  of 8 February 1996).
4 In connection with this aspect, Article 4 refers back to Decree No. 88-146 of 28 April 1988 on
products containing asbestos ( Journal officiel  of 30 April 1988).WT/DS135/R
Page 5
III. ARGUMENTS OF THE PARTIES
A. CLAIMS BY THE PARTIES
3.1 In view of the facts and arguments put forward, Canada requests the Panel to find that:
(a) Decree No. 96-1133 of 24 December 1996 banning asbestos is incompatible with the
Agreement on Technical Barriers to Trade insofar as it is a technical regulation that:
(i) Creates an unnecessary obstacle to international trade contrary to the provisions
of Article 2.2;
(ii) is not based on effective and appropriate international standards – nor is it in
compliance with them – contrary to the provisions of Article 2.4;
(iii) is not based on orders relating to chrysotile and chrysotile-containing products
with respect to the product performance of  chrysotile, contrary to the provisions
of Article 2.8;  and
(iv) violates the national treatment disciplines and the most-favoured-nation clause
of Article 2.1.
(b) In addition, the Decree is incompatible with the GATT 1994 in that it:
(i) Creates a prohibition or a restriction on the import of chrysotile and
chrysotile-containing products, contrary to the provisions of Article XI.1;
and
(ii) favours the national industry of products like chrysotile fibre and chrysotile-
cement products, contrary to the national treatment disciplines of
Article III:4.
3.2 In the event that the Panel is unable to find a violation of Article XXIII.1(a) of the GATT
1994, Canada requests that the Panel find a violation of Article XXIII.1(b) of the GATT 1994.
3.3 In view of the foregoing, Canada requests that the Panel recommend to France that it make
the Decree compatible with its obligations under the Agreement on Technical Barriers to Trade and
the GATT 1994.
3.4 In view of the facts and legal arguments, the European Communities (hereinafter the "EC")
ask the Panel to confirm that, in light of the rules of the GATT 1994, Decree No. 96-1133 of24 December 1996 banning asbestos:
(i) Should not be examined in relation to the scope of Article XI of the GATT 1994;
(ii) does not establish less favourable treatment for similar imported products than for
domestic products, within the meaning of Article III:4 of the GATT 1994;
(iii) is necessary in any event, to protect human health, within the meaning of
Article XX(b) of the GATT 1994.
3.5 The EC also ask the Panel to find that:WT/DS135/R
Page 6
(i) The Decree is not covered by the Agreement on Technical Barriers to Trade and that,
in any case, it complies with the relevant provisions of that Agreement.
3.6 Finally, the EC further ask the Panel to find that:
(i) Article XXIII.1(b) of th e GATT 1994 does not apply.
3.7 Consequently, the EC ask the Panel to reject  all the arguments put forward by Canada.
B. FACTUAL ARGUMENTS
1. Introductory remarks
3.8 Canada  recalls that, since 1 January 1997, France has prohibited the manufacture,
processing, sale, importation, exportation, domestic marketing, possession for sale, offer and transfer
of all varieties of asbestos fibres, regardless of whether these substances have been incorporated into
materials, products or devices.  There are four temporary exceptions to this general ban.  The ban will
become total on 1 January 2002.  Canada is challenging the ban on chrysotile fibre and products
containing it.  Before the ban, France imported 20,000 to 40,000 tonnes of chrysotile fibre fromCanada each year, equivalent to over two thirds of the total quantity imported into France.  After the
French Government announced its intention to ban asbestos in July 1996, imports of Canadian
chrysotile dropped to under 15,000 tonnes.  In 1997, the year the ban took effect, just 18 tonnes were
imported.  At present, for all practical purposes, they have disappeared.
3.9 Canada asserts that, unlike amphibole fibres – th e asbestos most hazardous to health, which
was previously used widely in France – chrysotile fibres can be used without incurring any detectable
risk.  Chrysotile fibres are found today in a limited number of products, where they are encapsulated
in an inert matrix.  These products do not pose an y risk to businesses, the general public, or the
environment.  Exclusive use of chrysotile fibre and the adoption of effective methods for reducingdust creation are sufficient health-protection guarantees. Before banning asbestos, France had been
applying controlled use practices.  It is past uses, especially the spraying of brittle asbestos in
fireproofing, which are the main causes of asbestos-r elated health problems in France.  Given the long
latency period between exposure to asbestos and the onset of any related diseases, workers who were
victims of heavy exposure with virtually no protection 30 years ago are experiencing serious health
problems today.  People are currently being exposed to asbestos dust released by fireproofing that is
disintegrating.  The use of materials containing brittle asbestos was prohibited when the Decree that isbeing challenged by Canada was adopted.
3.10 According to Canada, the ban on asbestos does nothing to correct the problems resulting from
past asbestos use.  The ban was adopted at a time of heavy media coverage of diseases caused by
uncontrolled use of asbestos in France.  Alarmist campaigns condemned all forms of asbestos use andthere was pressure on public officials to take action.  Spurred by courts that were concurrently
examining the liability of political leaders in the "tainted blood" affair, the French Government chose
to prohibit chrysotile and all its uses in the hopes of assuaging public opinion, which had been badly
shaken.  The ban on asbestos is nothing but a political reaction on the part of the French Government
to anti-asbestos propaganda.  In many respects, the French reaction is identical to the reaction of theUnited States Environmental Protection Agency (EPA) in 1989, when it prohibited asbestos under
pressure from panicked United States public opinion.  Unable to justify its ban scientifically, the EPA
had to reverse its decision in 1992 and acknowledge that modern products containing chrysotile
enclosed in a matrix of cement or resin do not pose any detectable risk to public health.  Today,
although amphiboles are prohibited in the United States, a number of products containing non-brittle
chrysotile are permitted.WT/DS135/R
Page 7
3.11 Canada notes that France claims that its measure is based on a report from the Institut
National de la Science et de la Recherche Médicale  (INSERM).1  Yet several experts who have
analysed the report have sharply criticized the methods of the INSERM researchers.  They have also
very severely criticized the findings of their report.  Those experts are of the opinion that the
INSERM report is not a credible basis for justifying a total ban on all varieties and all uses of asbestosfor public health purposes.  In the justification of the measure given by Directorate General III
(Industry) of the European Commission, it was admitted that application of a practice of controlled
use of asbestos in industry enabled true control of the risk of diseases attributable to occupational
exposure, in the case of workers involved in the mining and processing of chrysotile.
2  The practice of
controlled use also applies to other possible situations of exposure to asbestos.  The ban on chrysotile
involves using substitute products whose effects on human health are, by INSERM's own admission,
unknown.  The use of substitute products is not covered by clearly-established standards, yet theINSERM researchers state how important it is to evaluate the potential risks involved.  Permitting the
use of these products without taking the requisite precautions may cause a repeat of the mistakes that
were made at the time when the risks associ ated with asbestos use were unknown or poorly
controlled.  The undetectable risk from chrysotile is thus replaced by the unknown risk from
substitutes.  This results in inconsistencies in the regulation of potentially hazardous products inFrance.
3.12 Canada is not challenging the right of the Members of the WTO to take whatever measures
are necessary to protect the health and safety of their populations.  That right, however, must be
exercised in compliance with the obligations that a Member has under the WTO Agreements.  In thatrespect, France was not entitled to adopt a total ban on asbestos, with no distinctions concerning fibres
and products, in the absence of scientific proof of the health risks posed by modern products
containing chrysotile.  Yet, one thing needs to be said:  the total ban is both irrational and
disproportionate considering the fact that the manufacture and use of modern chrysotile asbestos
products do not pose any detectable health risks.  In Canada's view, the scientific data on whichFrance has based its case do not justify such a radical measure as the ban on chrysotile fibres and the
prohibition of all uses that can be made of them.  Moreover, Canada affirms that the ban does nothing
to correct the problem of past exposure to asbestos, nor does it solve the problem of managing the
asbestos already in use in France.  Ultimately, the total ban on chrysotile fibre and chrysotile-
containing products is an excessive measure.  Other measures that are less restrictive on international
trade and thus compatible with France's international obligations were available and would have
enabled France to achieve its aim just as well as a ban.  Accepting France's approach would give eachMember the option of completely banning potentially hazardous natural products rather than adopting
a reasonable approach of risk management based on their use.  In terms of international trade, the total
ban on asbestos creates a barrier to importation of chrysotile fibre and chrysotile-containing products
into the French market.  It is also an internal measure that upsets the competitive relationship between
chrysotile fibre and chrysotile-containing products and like products of French or foreign origin:  it istherefore a discriminatory measure.
3.13 The European Communities  respond that the Canadian statement that amphiboles are "the
asbestos most hazardous to health" is only recognized for the risk of mesothelioma (as explained in
the INSERM report);  it is accepted, however, that chrysotile has a carcinogenic potential at leastcomparable to amphiboles for lung cancer, as claimed below by the EC.  This confusion is systematic
in the Canadian arguments, as though it was less serious and less dangerous for health to suffer lung
cancer than mesothelioma.  It is also inaccurate to state, as Canada does, that amphibole fibres "were
used widely in France".  Between 1945 and 1988, some 97 per cent of the asbestos consumed by
                                                     
1 INSERM, Rapport sur les effets sur la santé des principaux types d’exposition à l'amiante  (Report on
the health effects of the main types of exposure to asbestos), INSERM joint report, Paris, INSERM publications,1997 (hereinafter the "INSERM report").
2 European Commission (G. Lohan, DG III), European Justification of Decree No. 96-1133 to the
Canadian authorities (15 April 1997) following the French Notification (G/TBT/Notif.97.55).WT/DS135/R
Page 8
France was chrysotile asbestos and since 1988 it has represented the totality.  Regarding the methods
which Canada deems "effective for reducing dust creation", the EC note that the dust levels created
through the use of some materials that comply with the standard ISO 7337 are very much higher than
the limit values allowed in France and even than the limit values recommended by the WHO group
mentioned by Canada.  Canada confines its analysis to the processing of raw asbestos and deliberately
disregards users of material containing asbestos working on building sites or carrying out servicing or
maintenance work.  The dust elimination techniques cited in the standard ISO 7337 have shown their
ineffectiveness for this type of changeable and mobile work;  the dust levels regularly measured
greatly exceed the thresholds adopted by France and many countries for which it has been proved that
there is an excessive risk.
3.14 According to the EC, it is incorrect to state, as Canada does, that the use of materials
containing brittle asbestos was banned in France prior to 1996.  Before 1996, France authorized the
use of all types of brittle asbestos, except for certain specifically prohibited uses such as fireproofing.
It cannot be asserted either that "The main causes of asbestos-related health problems in France are
past uses, especially the spraying of brittle asbestos in fireproofing".  In fact, the increase in asbestos-
related diseases precedes the practice of fireproofing:  it started in the 1950s, whereas fireproofingonly really started to be practised from the 1960s onwards;  the very long latency period for cancer
caused by asbestos means that cancer cases can onl y be attributed to fireproofing since the 1990s,
whereas the mesothelioma mortality rate in France has for a long time shown a rapidly ascending
curve.  Furthermore, this increase in disease concerns workers in very different industrial sectors.
3.15 The EC point out that, when Canada claims that the prohibition imposed by France in summer
1996 was "a political reaction … to anti-asbestos propaganda", its interpretation of the decisions by a
country's Government is wrong;  the EC explain below all the restrictive measures taken by France for
a long time and gradually.  The statement does not take into account the fact that seven other
European countries took an identical measure some years ago, without Canada accusing them ofhaving taken their decisions for "political" reasons or attacking them, as far as the EC know.
3.16 The EC note that it also subjective to state that several experts who analysed the INSERM
report "sharply criticized" the methods used and "very severely criticized" its findings.  The report by
the Expert Panel of the Royal Society of Canada
3 appointed by the Canadian Government contains
praise for the work of the INSERM experts, even if certain points are raised, as is the rule for complex
scientific problems.  Some pages of the report of the Royal Society of Canada formally contradictCanada's statement:  for example, pp. 4-7 of the English text of the report, which list the important
points on which the Panel agrees with INSERM's findings, and the comments on pp. 9-18.  It seems
that, on the major points of INSERM's conclusions, the Canadian experts agree or make comments
which are a matter of scientific discussion without questioning INSERM's findings.  The EC also note
that the Panel of the Royal Society of Canada worked too quickly, as is recognized in severalinstances (see, for example, page 15 of the English text), that it was unable to reach a consensus
(page 15 of the English text), and that it worked on the basis of an incomplete document whose
translation had not been reviewed (page 1), which clearly accounts for certain incorrect interpretations
due to misunderstandings.  This last aspect calls for a comment:  Canada in fact obtained a copy of the
pre-publication text of the INSERM report, without  making a request to INSERM or to the French
Government;  it translated this into English without having the translation revised by the authors, who
were not informed of the existence of the Panel and still less of its composition.  At no time (neither
during the examination of the INSERM report nor af terwards) did the Government of Canada or the
Royal Society of Canada request explanations or comments from the French experts who participated
in the INSERM report, which would no doubt have helped to remove certain ambiguities.  It isabsolutely alien to the tradition of scientific discussion to proceed in this way:  scientific debate is
                                                     
3 Royal Society of Canada, A Review of the INSERM Report on the Health Effects of Exposure to
Asbestos, Ottawa, 1996.WT/DS135/R
Page 9
obviously necessary, but it is usually based on contradictory discussions to which each may contribute
arguments and not on procedures from which one of the parties is excluded.4
3.17 The EC reject several of Canada's statements concerning substitute products.  It is incorrect to
state that "the use of substitute products is not covered under clearly established standards".  Theproducts used as substitutes for asbestos differ according to the use to which they are to be put.  They
are all chemical products.  As such, they are subject to the regulations applicable to chemical
substances for the purposes of risk prevention, and where appropriate to the regulations on
carcinogenic substances if there is an established or suspected risk of carcinogenicity.  Regarding the
Canadian statement that "The undetectable risk from chrysotile is thus replaced by the unknown risk
from substitutes", the EC point out that undetectable risk is not the same as absence of risk, contrary
to what Canada seeks to claim.  On this point, the INSERM report showed clearly and in detail thatthe low risks associated with low levels of exposure (either due to chrysotile or any other substance)
are indeed undetectable for methodological reasons that are explained in detail.
5  It is therefore quite
unacceptable to try to "absolve" chrysotile on the pr etext that if it is inhaled in very low doses there
will be an undetectable risk:  if one followed this reasoning, it could be concluded that no substance is
carcinogenic on the pretext that the corresponding risks are undetectable at very low levels ofexposure (for example, it is clear that the risk of cancer from tobacco is undetectable if one inhales
tiny quantities of cigarette smoke).  The truth is that the risks from chrysotile are not only detectable,
but have been detected for a long time because they are so great if there is a high level of exposure;
the EC assert that this is still the case today, even with "modern" products.
3.18 The EC also emphasize that the majority of substitute products for asbestos are substances
which have been used regularly for other purposes for decades without any risk associated with their
use being detected, unlike the scientifically proven risk associated with the use of asbestos.  No
substitute product for chrysotile in fibro-cement is  recognized as carcinogenic at the international
level.  Some fibrous substitute products used in a number of very limited cases may be suspected ofbeing carcinogenic, but in any case their carcinogenicity for humans has not been proven scientifically
at the international level.  This scale of risk has been known since June 1996, the date of the French
decision.  It cannot be asserted that there is an "absence of scientific proof of the health risks posed by
modern products containing chrysotile".  The EC reject this statement, based on international
authorities such as the WHO and the ILO.  To France's knowledge, the methods of manufacturing
asbestos-cement have not developed to any significant degree for several years.  Furthermore, the
fibre emissions are much higher than the limit values allowed for the servicing and maintenance ofbuildings, which Canada does not mention.  Consequently, the concept of "modern" products does not
have any meaning.  The aim of the French regulation contested by Canada is to prevent the extension
of the existing risk by halting the dissemination of this product, which is scientifically recognized as
dangerous.  Other measures have been taken by the Government in order to deal with problems due to
past exposure and the management of asbestos already in place.
3.19 The EC reject the Canadian statement that "Accepting France's approach would give each
Member the option of completely banning potentially hazardous natural products rather than adopting
a reasonable approach of risk management based on their use".  Contrary to Canada's assertion, the
risks of chrysotile are not potential but proven, as the WHO declared in 1998.  Moreover, the WTOAgreements give each Member the sovereign right to choose the level of protection it wishes to adopt.
Confronted with such a diffuse risk that is impossible to control in such divergent exposed
populations, no country can state that it has been able to establish a responsible approach to the
management of a carcinogenic risk other than by replacing the incriminated substance.  Contrary to
Canada's claim, the effect of the French measure is not to favour products like asbestos of Frenchorigin.  France does not manufacture the substitute products mainly used to replace asbestos in
                                                     
4 B. Terracini, Review of Technical and Scientific Document s annexed by Canada to its Submission of
April 26 , 19 May 1999 (document transmitted to the Panel by the EC).
5 See pp.24-230 of the INSERM report.WT/DS135/R
Page 10
asbestos-cement, but imports them from other countries.  For example, PVA, an asbestos-cement
substitute, is produced in only two plants worldwide, one in China and one in Japan.  Moreover,
substitute products are not like products because they are less dangerous and their chemical
composition differs.
2. Economic and trade data
3.20 Canada  indicates that, in 1997, global production of chrysotile was about 2 million tonnes.
The Commonwealth of Independent States is the number one producer, followed by Canada.  Then
come China, Brazil and Zimbabwe.  International trade in chrysotile is of special importance to
Canada, which is the world's number one exporter.  Canadian exports to the five continents totalled
430,000 tonnes in 1997.6  Before the Decree took effect, more than two thirds of French imports of
chrysotile came from Canada.  The effect of the Decree was felt as of 1996 due to the announcementof the intention to ban asbestos:  French imports of chrysotile from Canada dropped by more than half
compared to 1995, from approximately 32,000 tonnes to about 14,000 tonnes.  Once the ban took
effect in early 1997, imports, for all practical purposes, disappeared.  For 1997, imports were just
18 tonnes of Canadian chrysotile fibres.  The Decree has eliminated the French market for chrysotile.
All Canadian mines are located in Quebec Province.  With annual production valued at Can$ 225million, the chrysotile mining industry currently prov ides about 1,300 direct jobs and as many indirect
jobs in Quebec.  Moreover, the chrysotile processing industry provides about 1,500 jobs in friction
product, composite material and asbestos textile companies, mainly located in Quebec.  More than
4,000 Canadian jobs depend directly or indirectly on the chrysotile industry.
3.21 Canada explains that there are up to 3,000 commercial applications for asbestos, the most
important of which are the following:  (i) as a reinforcement material for cement, plastic or rubber;
(ii) as part of brake linings or clutches;  (iii) in the form of spun fibres for the protection of insulating
woven fabrics or cords;  (iv) in the past, it was applied by spraying in order to give boats, structural
beams, pipes and boilers fire-resistant finishes;  (v) in the past, it was used as a thermal insulation onpipes and boilers.  Throughout the world, the most  important current application is the manufacture of
chrysotile products.
7  The worldwide production and use of amphiboles (amosite and crocidolite)
comprise less than 3 per cent of the total amount of asbestos produced and continue to decline.
Therefore, chrysotile is now the only type of asbestos used.  Furthermore, modern asbestos products
are not brittle and fibre emissions during their transportation, installation8 and use (including
subsequent losses due to alteration and abrasion) have been reduced to an absolute minimum, unlike
earlier products which released much larger amounts of fibres into the environment.
3.22 The European Communities  explain that, in 1973, world production of asbestos reached a
peak of 5.2 million tonnes.9  Since then, production has steadily declined, falling to 1.92 million
tonnes in 199710, some 60 per cent of which is produced by Canada and Russia.  Canada is a major
producer of chrysotile asbestos.  It consumes little asbestos and thus exports the bulk of its
                                                     
6 Natural Resources Canada, Chrysotile 1997 , chapter taken from the Canadian Minerals Yearbook ,
minerals and metals sector, Natural Resources Canada, 1998.
7 Canada notes that, until the adoption of the Decree, 90 per cent or more of French imports of
chrysotile fibres were used to produce chrysotile cement (see Le Déaut, J.-Y. and Revol, H., L'amiante dans
l'environnement de l'homme:  ses conséquences et son avenir , Office parlementaire d'évaluation des choix
scientifiques et technologiques, National Assembly no. 329/Senate no. 41, 1997).  According to the INSERMreport, in 1984, for example, French production of chrysotile cement was 600,000 tonnes.  In 1991, eight Frenchfactories produced 540,000 tonnes (see INSERM, Rapport sur les effets sur la santé des principaux types
d'exposition à l'amiante , INSERM joint report,  Paris, INSERM publications, 1997, p.21).
8 See in particular Baujon and Authier, Détermination des concentrations de fibres d'amiante dans
l'atmosphère lors de la pose sur chantier de plaques ondulées et d'ardoises en amiante-ciment , Laboratoire
d'hygiène et de contrôle des fibres minérales, Paris, July 1993.
9 Source:  Association Française de l'Amiante (A.F.A.).
10 Canadian Ministry of Natural Resources.WT/DS135/R
Page 11
production.  It should be noted that Canada produces and exports only chrysotile asbestos.  Canada is
thus exporting to other countries the "public health risk" associated with chrysotile.  The EC
emphasize that, since asbestos was first used for industrial purposes, some 95 per cent of the asbestos
consumed worldwide has been chrysotile asbestos.  Between 1945 and 1980, some 97 per cent of the
asbestos consumed by France was chrysotile asbestos.  From 1988, onwards, all the asbestosconsumed in France has been chrysotile asbestos.
3.23 The EC indicate that, given the many uses of asbestos, the range of asbestos-containing
products is extremely wide.  Depending on their physical appearance, there are five main categories:
(i) bulk asbestos:  asbestos wadding for the thermal insulation of ovens, boilers, fire-doors,
refrigerating equipment, flocked asbestos for the underside of concrete slabs and for steel frames for
the fireproofing and soundproofing of buildings;  (ii) asbestos sheets or boards:  asbestos paper andboard for thermal insulation, for the protection of welded joints (plumbing) and for the protection of
work surfaces (glass industry), boards for the fitting of false ceilings, fireproof surfaces, partitions,
etc.;  (iii) textile asbestos:  asbestos cord (sealing of oven doors, laboratory applications), buffer strips
(to protect against heat), fireproof coverings and curtains, air, gas and liquid filters, insulation of
electrical equipment;  (iv) asbestos incorporated  in cement products (asbestos-cement):  roof tiles,
roof cladding, window sills, facing of buildings, interior partitions and false ceilings, other forms of
panelling, flues, ventilation shafts, rainwater pipes, plant tubs and gardening equipment;  (v) asbestos
in binding or bonding agents (resins, bitumens):  friction linings (brake linings, clutch linings, linings
for presses, winches, gantries, lifts, engines), road surfaces, flooring, decorative shingles, sealants,
plaster-based finishes and coatings, glues and gums and asbestos-based paints.  Asbestos-cementaccounts for 90 per cent of all asbestos used.
3.24 As far as the EC know, the production methods for asbestos-cement have not developed
significantly in recent years.  Canada cannot therefore claim that "modern asbestos products are not
brittle and fibre emissions during their transportation, installation and use … have been reduced to anabsolute minimum, unlike earlier products".  Furthermore, fibre emissions greatly exceed the limit
values permitted for all building servicing and maintenance activities, which Canada does not
mention.
3.25 Canada  states that, since the pathogenic potential of amphiboles is greater than that of
chrysotile – this is true both for mesotheliomas and for lung cancer – a review of how amphibole
asbestos has been used in France in the past is necessary.  Here again, the data advanced by the ECmust be corrected.  According to Canada, it is in correct to state, as the EC claim, that from 1945 to
1988 only 3 per cent of asbestos used came from the amphibole family; this is in complete
contradiction with the studies reviewed by INSERM, which reveal that of the samples taken after
1990 in buildings containing asbestos in France, 18 per cent of the samples contained amphibole
fibres, including 13 per cent which contained only amphibole fibres.
11  It is also incorrect to claim that
the use of amphiboles in France ceased in 1988;  the INSERM data contradict these claims by the EC,
clearly stating that the use of amphiboles continued well beyond 1988, i.e. at least until 1992.12  Given
the much higher pathogenic potential of amphiboles compared to chrysotile and the fact that
amphiboles are present in nearly 20 per cent of more than 1,000 exposures to asbestos recorded and
measured in France, it is quite plausible to attribute the problem of asbestos in France to pastsituations.  While amphiboles have been banned in France since 1994, along with the use of friable
materials, the significant risks associated with their presence remain.  For instance, according to the
WHO, building maintenance personnel are today exposed to high risks, not because of the current
uses of chrysotile, but particularly because of the large quantities of "mixed in-place friable asbestos
fibres".
13  Similarly, Canada seeks to refute the French argument that, since 95 per cent of the asbestos
used in the world today is chrysotile asbestos, the proportion of diseases that is attributable to it is
                                                     
11 INSERM report, p.387.
12 Id. Table Importations d'amiante entre 1938 et 1992 , p.189 .
13 Chrysotile asbestos evaluated  by health experts , Press communique (51), WHO, 26 July 1996.WT/DS135/R
Page 12
"quite indisputably" of the same magnitude.14  This reasoning, dubious at best, denies the entire
heritage of past uses of amphibole fibres, the existence of a latency period, as well as the greater
pathogenicity of amphibole asbestos.
3. French legislation in its context
3.26 Canada  considers that special attention should be paid to social and political climate in which
the French ban was adopted.  This climate is very revealing as concerns the factors that motivated
France's action and, in large part, explains the severity of that action:  the political need to assuage an
alarmed French population – what France's Minister for Education, Mr. Claude Allègre, then called
"un phénomène de psychose collective " (mass psychosis).  Alarmed political leaders were evidently
afraid of being held criminally liable if they were  not seen to be doing something about the problem.
In recent years in France, media coverage of several cases of diseases linked to occupational exposureto asbestos has inflamed public opinion.  That, obviously, contributed to the adoption of the Decree.
15
Indeed, since the spring of 1995, the media in France have presented alarmist articles and reports onthe risks of asbestos to a public that was already shaken by two other public health cases:  the "mad
cow" and "tainted blood" crises.  Those controversies led to the examination of the liability of
political leaders in criminal courts.  In the summer of 1995, with public outcry centred on JussieuUniversity as backdrop, the French Government  commissioned a report from INSERM.  INSERM
was asked to study the health effects of the main types of exposure to asbestos.  In late 1995, France
presented an oversight programme to reduce the risks associated with asbestos.  A ban did not seem to
be under consideration at that time.  On 21 June 1996, INSERM submitted an executive summary of
its report to the French Government.  On 25 June 1996, the filing of a complaint by the Association
nationale de défense des victimes de l'amiante  (ANDEVA) (National Association for the Protection of
Asbestos Victims), specifically accusing the Government of inaction, reportedly helped to move
France towards the ban.  Seven days later, on 2 July 1996, INSERM published the summary of its
report on the health effects of the main types of exposure to asbestos.  The next day, 3 July 1996,
France announced its intent to declare a ban on asbestos.
3.27 Canada asks why the great haste?  Why was the ban announced less than two weeks after the
French Government first obtained the summary of the INSERM report?  Is it credible that in only two
weeks the French Government could review and analyse the scientific, social and economic
considerations related to such an important decision?  And all this some 16 months before the final
report – as opposed to the executive summary – saw the light of day!  And why was the ban
announced only one week after a legal action for poisoning was filed?  The timing suggests that theban was politically motivated and that the INSERM report merely provided the  ex post facto
scientific rationale.  On 31 July 1996, yet another complaint for asbestos poisoning was filed, this
time against eight former French ministers.  All this took place during the contemporaneous
examination of French political leaders' criminal liability in the tainted blood scandal.  According to
Canada, French political leaders were evidently under tremendous pressure to take action, any action,to be seen to be remedying a situation blown out of all proportion by the media.  French
parliamentarians have themselves acknowledged the pressure from public opinion and the media.   In
a joint report on asbestos, the Senate and the National Assembly stated:  "It is because a definitive
                                                     
14 See paragraph 3.78 below.
15For a chronology of facts (from June to September 1996), see Info-Science
<http//www.infoscience.fr/travaux/amiante/chrono.html> (access date:  4 April 1999).  According to Canada,
the controversy over asbestos in France results, in large part, from the situation at the University of Jussieu,where a group has led a very active fight against asbestos use for several years.  On the topic of the situation inJussieu, Claude Allègre, who was Minister for Education, Research and Technology in the Jospin Government,
said:  "The psychosis of those demanding that asbestos be cleared from all buildings is irrational and hazardous.
The radical solution that has been chosen is going to shut down, for four years, France's foremost researchcentre (the University of Jussieu).  That university is being wrecked for a figment of the imagination … I do notknow whether asbestos at low doses causes cancer.  It is not impossible, but no one has proven it scientifically."(Le Point , 12 October 1996.  See also Le Figaro , 26 December 1996.)WT/DS135/R
Page 13
response was so late in coming that the asbestos issue is today drawing so much media attention and
political opinion is being diverted."16
3.28 Canada notes that, in July 1996, thus at the same time as it was preparing to prohibit asbestos,
the French Government called for research proposals aimed specifically at developing fibres toreplace asbestos.  This specific effort on the part of the French Government was designed to
accelerate the conversion of industrial groups to substitute fibres and to enable France to become a
leader in substitute fibres in the global market.  According to Canada, it was in that climate, when a
panic had overtaken public opinion and commercial interests in French industry were moving toward
the development of substitute products and fibres, that the Decree banning asbestos was adopted.
3.29 The European Communities  note that Canada criticizes the rapidity with which the French
Government announced that it was going to ban asbestos after the publication of the executive
summary of the INSERM report, as well as the time taken by the French authorities to publish the
final report.  According to the EC, these arguments show that, on the one hand, Canada appears to
ignore what constitutes a risk assessment and, on the other, how much time it takes to produce a
formal publication of the results of a risk assessment.  It is not uncommon practice for governments toact on the basis of unpublished results of a risk assessment.  It takes on average more than one, if not
two, years before formal publication in the form of a book or otherwise because the documents need
careful editing and all bibliographical references must be checked.  This is normal procedure also for
similar publications by the WHO, the IARC and other international bodies such as the Joint
FAO/WHO Expert Committee on Food Additives (JECFA) or the Joint FAO/WHO Meeting onPesticide Residues (JNPR), whose formal publications frequently take more than a year to be
published.  It would be unreasonable if governments were to be prevented from taking action quickly
on the basis of the substantive results which they have in the form of an executive summary as
protection of health should be given priority over formalities prior to publishing results.  The EC also
emphasize that the interim results and the executive summary were immediately made available toCanada for comments.  The only criticism which Canada was able to make against the INSERM
report is the critique made in the report by the Royal Society of Canada.  But by looking at the text of
that report, it can be seen that the authors' criticisms were not all unanimous;  moreover, this report,
which criticizes meticulous scientific work by 11 scientists, was adopted within the space of two
weeks.  The EC also consider that Canada's attempt to convey the impression that the Canadian
scientists who reviewed the INSERM report are "bet ter" than the French scientists who prepared the
report is unacceptable.  This suggestion has no foundation in fact nor in science. Canada is of courseentitled to employ the scientists it wishes to assess asbestos-related risks in Canada in the past.  The
EC do not criticize the quality of their report.  Ne vertheless, the EC expect Canada to show equal
respect for the French scientists who prepared the INSERM report, bearing in mind that this report
conforms to the great majority (if not all) of the views of the scientific community on the risks posed
by asbestos and that its findings have even been confirmed subsequently in reports by internationalbodies such as the WHO report 203.
17
3.30 The EC state that, contrary to Canada's assertions, France's ban on asbestos is not an isolated
and irrational act arising out of a wave of panic.  During the 1970s and early 1980s, scientific
evidence showed that all types of asbestos were likely to cause asbestosis, lung cancer andmesothelioma.  In response to these public health concerns, many European countries began to
introduce national legislation restricting, and ultimately prohibiting, the marketing and use of
asbestos.  Rules designed to control the use of asbestos in the workplace and ultimately to limit the
release of asbestos into the atmosphere were also introduced.  It cannot be asserted, as Canada does,
that in spring 1995 French public opinion was shaken by the "mad cow" crisis:  the events to whichCanada refers occurred in 1996.  Likewise, it is incorrect to state that "In late 1995, France presented
                                                     
16 L'amiante dans l'environnement:  ses conséquences et son avenir , Office parlementaire d'évaluation
des choix scientifiques et technologiques, National Assembly no. 329/Senate no. 41, p.57.
17 IPCS Environmental Health Criteria (203) on Chrysotile , WHO, Geneva, 1998.WT/DS135/R
Page 14
an oversight program to reduce the risks associated with asbestos … [and that a] ban did not seem to
be under consideration at that time."  A total ban was one of the measures envisaged by the French
Government as of 1995.  A decision was finally ta ken not because of the filing of complaints by a
victims' association but as a result of the findings in the INSERM report given to the ministers
concerned in June 1996.
3.31 The EC point out that a number of countries have either introduced bans on asbestos or plan
to do so. The health authorities of many more are looking in detail at the dangers which the various
forms of asbestos represent.  As early as 1983, Iceland introduced a ban (with some limited
exceptions) on all types of asbestos (updated in 1996). In 1984, Norway introduced a ban (with some
limited exceptions) on all types of asbestos (revised in 1991).  Since 1989, Switzerland  has in
principle prohibited the use of asbestos, including chrysotile asbestos, in accordance with anamendment to the law on environmentally harmful substances. In only two types of situation may an
exception be granted to this principle, subject to th e express authorization of the Federal Office for the
Protection of the Environment:  (i) where technology has not yet identified an asbestos-free substitute
and where the amount of asbestos used does not exceed what is necessary to attain the desired
objective; or (ii) where the technical characteristics of the product or object are such that it isimpossible to use alternative components which do not contain asbestos (Annex 3.3 to the Order of
11 January 1989 amending the Order of 9 June 1986).  An exemption may also be granted "on
grounds of national defence" for material used in carrying out defence-related tasks, although only
with the agreement of several ministerial departments. In New Zealand,  the Asbestos Regulations
1983 ban the use of asbestos in the construction of new buildings. The ban applies to all types ofasbestos:  chrysotile, crocidolite, tremolite, actinolite, anthophyllite and amosite. In January 1999, a
new amendment to the Asbestos Regulations of 1983 was published, providing for:  (i) a ban on the
import of chrysotile asbestos;  (ii) amendments to the law relating to the recycling of
asbestos-containing products; (iii) more rigorous and more systematic health checks; and (iv) a higher
level of protection for workers who handle asbestos.  Since 1 January 1999, the Czech Republic nolonger imports nor processes asbestos, in whatever form. Asbestos is on its list of dangerous
(carcinogenic) substances.  In Australia , asbestos legislation falls within the remit of each of the
federal states. However, there is a government agency, the National Occupational Health and Safety
Commission (NOHCS), which is responsible for promoting health and safety at work throughout the
country. The research division of the NOHCS recently  published a report on the health risks posed by
the use of chrysotile asbestos.
3.32 The EC point out that, with a view to ensuring a high level of health protection in the
European Community and preserving the unity of the single market, numerous legislative acts have
been adopted at Community level since 1980.  On 4 May 1999, it was decided to introduce a total ban
on all types of asbestos with effect fro m 1 January 2005.  As early as 1972, Denmark  introduced a ban
on applying asbestos by the spraying process and on using it for insulation. It would appear to havebeen the first such ban anywhere in the world. In 1986, Denmark placed a total ban on asbestos,
allowing some limited exceptions up to 1993. In 1972, the United Kingdom banned imports of
crocidolite (blue asbestos). This decision was supplemented by the setting of limit values for exposure
to asbestos dust at the workplace.  In 1975, Sweden  banned the marketing and use of crocidolite, and
in 1976 the use of asbestos-cement products. In 1986, it introduced a total ban on asbestos with a fewexceptions.  In 1977,  France set initial limit values for asbestos dust and in 1978 it banned the
spraying of asbestos fibres. In 1996, France imposed a total ban on asbestos, with some limited
exceptions.  In 1977, the Netherlands banned crocidolite and the use of asbestos for spraying.  In
1991, it introduced a total ban on asbestos, with exceptions which applied until 1997.  In 1990,
Austria  banned the use of chrysotile asbestos, with some limited exceptions.  In 1992, Finland and
Italy imposed a total ban on asbestos, with exceptions which applied until 1993.  In 1993, Germany
imposed a total ban on asbestos, with some limited exceptions.  In 1998, Belgium  imposed a total ban
on asbestos, with some limited exceptions.WT/DS135/R
Page 15
3.33 The EC recall that, at the beginning of the 1980s, it became clear that there was a need for
harmonization at European Community level. Two key Community directives18 were adopted: 
Directive 83/477/EEC19 and Directive 83/478/EEC.20  Under Directive 83/477/EEC, the Member
States of the European Community must require em ployers to assess the risks to workers of exposure
to asbestos; they must also take the necessary preventive measures. The Directive prohibits theapplication of asbestos by means of the spraying process and sets limit values for exposure. It also
lays down a range of preventive measures such as medical surveillance of workers and appropriate
cleaning of the place of work. Lastly, it lays down specific measures to be taken to protect workers
involved in removing asbestos. Directive 83/4 78/EEC laid down the first Community measures in
respect of the marketing of asbestos. It prohibits the marketing and use of crocidolite (with some
exceptions) and introduces compulsory labelling for all asbestos-containing products. Directive
85/610/EEC extends this prohibition to all other types of asbestos for certain specific uses.
21  During
the same period, Council Directives 78/319/EEC22 and 87/217/EEC23 were adopted, laying down
measures to prevent and reduce environmental pollution, including the control of asbestos-containing
waste. Both these Directives were updated by Directive 91/689/EEC.24
3.34 The EC also recall that, at the beginning of the 1990s, a good deal of scientific evidenceconcerning the risks from asbestos became available and safer substitute products were developed to
replace asbestos in many applications.  European legislation evolved rapidly so as to achieve tighter
control of the risks. In 1991,
25 for example, all types of asbestos were classed as category I
carcinogens under Directive 67/548/EEC.26 T he Directive defines category I as comprising
substances known to be carcinogenic to man.  Then in 1991, Directive 91/382/EEC,27 amending
Directive 83/477/EEC on the protection of workers (see above), lowered the limit values for exposure
to 0.6 fibres per cm3 for chrysotile asbestos and 0.3 fibres per cm3 for all other forms of asbestos. One
                                                     
18 Pursuant to Article 249 (formerly Article 189) of the Treaty establishing the European Community, a
directive "is binding, as to the result to be achieved,  upon each Member State to which it is addressed", while
leaving to the national authorities the choice of form and methods.
19 Council Directive 83/477/EEC of 19 September 1983 on the protection of workers from the risks
related to exposure to asbestos at work (Official Journal of the European Communities (hereinafter "OJ" 1983L 263, p.25). Directive 83/477/EEC is the second individual directive adopted on the basis of Council Directive80/1107/EEC of 27 November 1980 on the protection of workers from the risks related to exposure to chemical,physical and biological agents at work (OJ 1980 L 327, p. 8).
20 Council Directive 83/478/EEC of 19 September 1983 amending for the fifth time (asbestos)
Directive 76/769/EEC on the approximation of the laws, regulations and administrative provisions of theMember States relating to restrictions on the marketing and use of certain dangerous substances andpreparations (OJ 1983 L 263, p. 33).
21 Council Directive 85/610/EEC of 20 December 1985 amending for the seventh time (asbestos)
Directive 76/769/EEC on the approximation of the laws, regulations and administrative provisions of the
Member States relating to restrictions on the marketing and use of certain dangerous substances andpreparations (OJ 1985 L 375, p. 1).
22 Council Directive 78/319/EEC of 20 March 1978 on toxic and dangerous waste (OJ 1978 L 84,
p. 43).
23 Council Directive 87/217/EEC of 19 March 1987 on the prevention and reduction of environmental
pollution by asbestos (OJ 1987 L 85, p. 40).
24 Council Directive 91/689/EEC of 12 December 1991 on hazardous waste (OJ 1991 L 377, p. 20).
25 Commission Directive 91/325/EEC of 1 March 1991 adapting to technical progress for the twelfth
time Council Directive 67/548/EEC on the approximation of laws, regulations and administrative provisionsrelating to the classification, packaging and labelling of dangerous substances (OJ 1991 L 180, p. 1).
26 Council Directive 67/548/EEC of 27 June 1967 on the approximation of laws, regulations and
administrative provisions relating to the classification, packaging and labelling of dangerous substances
(OJ 1967 L 196, p. 1).
27 Council Directive 91/382/EEC of 25 June 1991 amending Directive 83/477/EEC on the protection of
workers from the risks related to exposure to asbestos at  work (second individual Directive within the meaning
of Article 8 of Directive 80/1107/EEC (OJ 1991 L 206, p. 16).WT/DS135/R
Page 16
year previously, Directive 90/394/EEC28, which deals with the protection of workers from exposure to
all carcinogens, had introduced the principle of replacement.  Under this principle, employers are
required, where this is technically possible, to replace carcinogens used at work with substances
which are not dangerous or which are less dangerous.  As regards the placing of asbestos on the
market, Directive 91/659/EEC29 introduced a total ban on the marketing and use of all forms of
asbestos fibre, except chrysotile asbestos, whose use was nonetheless prohibited for fourteen specific
categories of product. Other chrysotile-containing products (e.g. asbestos-cement) remained outside
the Directive's scope of application.
3.35 The EC point out that, as there is sufficient scientific evidence to justify a ban, the
Commission of the European Communities has decided to propose a directive banning the marketing
and use of chrysotile asbestos, with one exception and some transitional arrangements. On4 May 1999, the proposed directive received a favourable vote from the Member States meeting
within the Standing Committee set up by Directive 76/769/EEC.
30  It is due to be finally adopted by
the Commission in the near future. Under the new directive, the ban on chrysotile asbestos is to be
implemented throughout the European Union by 1 January 2005 at the latest.  Each Member State
may choose the pace at which it wishes to move towards this harmonized position.  Decisions willhave to be adopted in the light of the situation within the domestic industry and in accordance with the
legal procedures applicable in each country.  The new directive would extend the current ban to all
remaining applications of chrysotile asbestos, with one exception.  Only diaphragms used for
electrolysis in certain chlorine plants may be exempted from the prohibition.  Diaphragms constitute a
special case since they represent the only current application of chrysotile asbestos for which it is nottechnically possible to use a substitute product without creating a safety risk (i.e. the risk of an
explosion).  Diaphragms are not placed on the market. Under the directive, the exemption applied to
diaphragms will be reviewed (on the basis of an independent scientific risk assessment), both as part
of the general review of the directive in 2003 and specifically in 2008.  The directive recognizes that
scientific knowledge about asbestos and substitute products is continually developing.  It thereforestipulates that the relevant scientific issues and derogations be reviewed before 2003, in order to
decide whether further legislative measures are necessary in this field.
3.36 The EC note that, in France, the first preventive rules on health and safety at work go back to
the beginning of the century. For about a decade, French legislation has been based on the European
directives on health and safety at work.  All regulatory provisions are the subject of consultations with
the social partners, i.e. the representatives of employer and employee associations within the SeniorCouncil for the Prevention of Occupational Hazards.   In addition to specific legislation covering
certain particularly harmful substances, France has general rules on health and safety (risk assessment,
informing and protecting workers, etc.).  As regards the prevention of chemical hazards, France has
incorporated into its Labour Code both the EC  Directive on chemical agents (Articles R231-55 et
seq.) and EC Directive 90/394/EEC on carcinogens (Articles R231-56 et seq .).  Since 1977, France
has had specific legislation on asbestos, designed to protect workers from inhaling asbestos dust.
Following the example of other European countries, this legislation was progressively tightened up as
knowledge developed until, finally, it was decided to impose a ban in 1996.  It should be pointed out
that, in France, the number of illnesses linked to the inhalation of asbestos dust which are recognized
                                                     
28 Council Directive 90/394/EEC of 28 June 1990 on the protection of workers from the risks related to
exposure to carcinogens at work (Sixth individual  Directive within the meaning of Article 16(1) of
Directive 89/391/EEC) (OJ 1990 L 196, p. 1).
29 Commission Directive 91/659/EEC of 3 December 1991 adapting to technical progress Annex I to
Council Directive 76/769/EEC on the approximation of the laws, regulations and administrative provisions ofthe Member States relating to restrictions on the marketing and use of certain dangerous substances and
preparations (asbestos) (OJ 1991 L 363, p. 36).
30 Commission Directive .../.../EC adap ting to technical progress for the sixth time Annex I to Council
Directive 76/769/EEC on the approximation of the laws, regulations and administrative provisions of theMember States relating to restrictions on the marketing and use of certain dangerous substances andpreparations (asbestos).WT/DS135/R
Page 17
as being of occupational origin and for which compensation is paid has been rising constantly for
several years. For example, between 1985 and 1995, the number of asbestos-linked occupational
diseases for which compensation was paid (mesothelioma, lung cancer, asbestosis, pleural
abnormalities) increased fourfold.  The cost of such illnesses ran to F1.08 billion in 1997, or almost
40 per cent of the compensation budget for all diseases  recognized as being of occupational origin in
France.  By way of comparison, musculoskeletal problems, which are very widespread and are at the
top of the list in numerical terms, account for only 18.8 per cent of the total financial cost of
occupational diseases.  This increase in diseases, together with the lower life expectancy of workers
formerly employed in the asbestos industry, rece ntly prompted the French Government to introduce
an early retirement plan for employees who worked in factories manufacturing asbestos products.31
3.37 The EC point that the situation in France until 1994 was the following:  in 1997, the IARCclassed all forms of asbestos (including chrysotile) as known carcinogens.  It was then that the first
specific regulatory provisions were adopted in France in order to limit the risk of exposure to asbestos
dust.  A series of texts produced by the Ministries with responsibility for health, labour, infrastructure
and consumer issues followed, restricting the use of asbestos, either by prohibiting the use of the most
harmful forms or by prohibiting its use in certain processes (spraying) or in the manufacture of certainproducts.  In the field of health at work, French legislation has, since 1977, strictly regulated working
conditions in the asbestos-processing industry, in particular by setting limit values for exposure. These
have been lowered several times to comply with the requirements of Community Directives.  In
addition to having an asbestos-processing industry producing essentially asbestos-cement, France has
used asbestos in numerous sectors including construction (flocking
32 and lagging33), the manufacture
of everyday consumer goods (floor slabs, brake linings, textiles and boarding) and heavy industry
(shipbuilding, metal working). Particular emphasis must be placed on the fact that many
asbestos-containing products, especially semi-finished products, were accessible to the general public
and sold in large retail outlets (sheets of asbestos-cement and asbestos board, asbestos yarn,
heat-resistant gloves, ironing-board covers, etc.).
3.38 The EC explain that, over the years, a series of regulatory measures reduced the applications
for which asbestos might be used. Two types of measure were adopted:
(a) Partial bans on processes or products:  (i) in 1977, the Ministry of Housing and
Planning and the Ministry of Health and Social Security prohibited asbestos flocking
in residential premises;  (ii) in 1978, the Ministry of Health prohibited in its turn theuse of flocking in all buildings;  (iii) in 1988, the Ministry of Economic Affairs
restricted to a few products (notably asbestos-cement pipes and gaskets) the use of
those forms of asbestos considered at the time to be the most harmful, and made
labelling compulsory for all products containing other forms of asbestos;  (iv) in
1994, the Ministry of Economic Affairs placed a permanent ban on the forms thenconsidered to be the most harmful and prohibited the use of all other forms of
asbestos, including chrysotile, in a wide range of products (toys, smoking accessories,
paints and varnishes, filters, etc.);
(b) a regulatory framework for authorized acti vities:  (i)  in 1977, the Ministry of Labour
laid down strict regulations on working conditions in the asbestos-processing
industry;  (ii) in 1987, the Ministry of Labour lowered the limit values for exposure;
(iii) in 1990, the Ministry of Labour prohibited the recruitment of casual workers to
carry out the removal of flocked asbestos or demolition work which would expose
                                                     
31 Article 41 of the Law on the financing of social security;  Decree and Orders of 29 March 1999.
32 Flocking:  application of fibres onto any surface to form a coating with a fibrous, velvety or downy
appearance.
33 Lagging:  thermal insulation technique used to avoid heat loss from heating installations, pipes and
ventilation shafts.WT/DS135/R
Page 18
them to asbestos dust;  (iv) in 1992, the Ministry of Labour again lowered the limit
values for exposure and issued a reminder that applying asbestos by spraying was
totally prohibited. It also laid down rules on procedures for removing flocked
asbestos.
3.39 The EC also indicate that 1990-1995 marked the turning point.  Following the adoption of the
ILO recommendation in 1986 and from the early 1990s, it became apparent that the risks in the
servicing and maintenance sector needed to be better assessed. A data bank (EVALUTIL) was set up
which made it possible to assess exposure to asbe stos among users of asbestos-containing products.34
This data bank highlighted the extremely high levels of exposure among certain construction workers
("exposure peaks" occurred during operations such as the cutting of flocked cladding containing 5 per
cent chrysotile, the cutting of asbestos-lined fireproof doors, etc).
3.40 The EC note that, given the dangers of inhaling fibres from flocked asbestos used in the
construction industry between 1950 and 1977, on 13 December 1989, the French Senior Council for
Public Health called on local authorities to compile a register of all buildings, especially public
buildings, in which flocked asbestos was present. The feasibility of compiling such a register wasassessed by a municipal health and safety department in a pilot town between 1991 and 1994. The
study came up against major difficulties linked to the fact that some companies no longer existed and
in some cases records had not been kept.  In the light of these disappointing results, on
15 September 1994, the Senior Council for Public Health expressed the desire to see legislation
introduced on the monitoring of flocked asbestos so as to protect exposed populations.
35 The
legislation was to be based on an early warning threshold expressed in terms of the erosion of flocked
surfaces and corresponding to a level of atmospheric dust in the building concerned of 5 fibres per
litre ("f/l") (which corresponds to the average asbestos pollution measured in the outside air) and on a
25 f/l threshold above which work would have to be carried out.  In the period prior to the
implementation of this legislation, the Ministries of Labour and Health sent two circulars to prefects,dated 15 September 1994 and 31 July 1995 respectively, setting out the thresholds, removal and
analysis techniques and the procedures for removing flocked asbestos. 
3.41 The EC point out that, at the end of 1994, the Ministry of Social Affairs (Directorate for
Industrial Relations and Directorate-General for Health) convened a group of experts, whose
discussions brought to light certain scientific data, on the one hand, and certain gaps in the existing
legislation on the other.  The experts' findings were as follows:
36  (i) an increase in the number of
cases of mesothelioma in France and the worrying forecasts in a study conducted by Julian Peto37 in
the United Kingdom.  The study predicted a growth in asbestos-related deaths which would total
between 2,700 and 3,000 per year in the 2020s;  (ii) the serious risk for workers engaged in the
servicing or maintenance of asbestos-containing products or equipment.  This applies in particular to
workers involved in finishing work in the construction industry, such as plumbers or electricians,since their exposure at "peak" moments may be very high;  (iii) the emergence of cases of
mesothelioma at levels of exposure which were below limit values in force at the time under French
legislation.  On the other hand, it was felt that there was nevertheless a need to collect together all
existing scientific knowledge on asbestos so as to shed light on the effect of low doses and on how
harmful chrysotile asbestos actually was. In the light of these findings, French legislation on the
                                                     
34 For values measured during the handling of asbestos-cement materials (source EVALUTIL), see
Ministry of Labour, Social Dialogue and Participation, Note setting out the main guidelines of the SeniorCouncil for the Prevention of Occupational Hazards, 3 July 1995.
35 French Senior Council for Public Health, Opinion on premises flocked with asbestos (Division for
the assessment of environmental risks to health), session of 15 September 1994.
36 Ministry of Labour, Employment and Vocational Training, Principal conclusions of the meeting of
French asbestos experts on 20 December 1994, dated 7 February 1995.
37 Peto, J., et al., Continuing Increase in Mesothelioma Mortality in Britain , Lancet, vol. 345, p.535,
1995, note 31.WT/DS135/R
Page 19
protection of workers appeared limited. Firstly, the thresholds seemed to be too high and secondly, the
provisions designed for industries and removal work where asbestos was known to be present were
scarcely or not at all effective when it came to maintenance workers. This conclusion prompted the
authorities to take decisive action to reinforce the existing preventive measures and to obtain more
detailed information on the risks linked to asbestos.
3.42 The EC emphasize that, on 3 July 1995, the Senior Council for the Prevention of
Occupational Hazards adopted the following guidelines:38  (i) to improve scientific knowledge of risks
(launching of the joint INSERM report);  (ii) to enhance protection of workers, especially those
engaged in servicing and maintenance work;  (iii) to raise awareness among all those exposed to the
dangers of asbestos;  (iv) to improve compensation for asbestos-related occupational diseases;  (v) to
begin discussions on whether asbestos should be banned.  Contrary to what is asserted in the Canadiansubmission, the possibility of a ban was not ruled out.  In July 1995, therefore, the French
Government decided to commission INSERM to car ry out a detailed study of asbestos-related
diseases, based on all internationally available research. In December 1995 it also adopted a general
action plan comprising measures to combat asbestos-related hazards, taking account of problems in
the areas of public health, the environment, the protection of workers and compensation forasbestos-related occupational diseases.
3.43 The EC point out that the implementation of the 1995 action plan presented by the Minister
for Social Affairs made it possible, without waiting for the findings of the INSERM joint report, to
introduce general legislation
39 in order to monitor the situation as regards buildings, limit occupational
exposure and improve compensation by reorganizing and reviewing the tables of occupational
diseases caused by asbestos. This action plan was intended to meet growing concerns about servicing
and maintenance workers in the construction sector, a risk on the subject of which Canada remains
silent. The action plan comprised the following m easures: (i) owners of buildings were obliged to
identify asbestos flocked surfaces and asbestos-containing insulation before 31 December 1999,  or
before the end of 1996 in the case of priority buildings, i.e. those housing young people or children
(Decree No. 96-97 of 7 February 1996);  (ii) reduction in the limit values for occupational exposure
("VLEP") to asbestos to the lowest technically possible level (0.1 fibre/cm³); the difference in the
limit values for "pure" chrysotile and amphibole forms of asbestos was to be abolished on
1 January 1998, although this would apply only to a very limited number of manufacturing industries
(Decree 96-98 of 7 February 1996);  (iii) strict regulatory provisions on asbestos removal  work;
works inspectors were entitled to close asbestos re moval sites if they did not consider the protective
measures to be adequate (legislative provision); a prohibition was placed on hiring casual workers to
carry out work involving contact with asbestos;  (iv) the preparation of specific preventive rules for
servicing and maintenance work  (Decree No. 96-98 of 7 February 1996);  (v) the creation of Table 30
bis on the recognition of occupational diseases was created specifically to cover bronchial cancer
caused by asbestos;  this disease  could now be recognized without requiring the presence of medical
"markers".40  The necessity of these measures, taken during the first half of 1996, was confirmed by
the INSERM report, which was sent to the Minister for Labour and Social Affairs at the end of
June 1996.  This report, which shed new light on the subject, prompted the French Government to
take additional steps without delay, including banning asbestos with effect from 1 January 1997.
3.44 The EC indicate that, in the summer of 1995, contacts between the Canadian and French
administrations took place.  France was seeking more effective ways of managing the risk, which it
already considered very serious, while Canada proposed setting up an international research centre on
                                                     
38 Ministry of Labour, Social Dialogue and Participation, Note setting out the main guidelines of the
Senior Council for the Prevention of Occupational Hazards, 3 July 1995.
39 Compendium of French legislative texts on asbestos, Edition des Journaux Officiels, Ministry of
Employment and Solidarity, 1998.
40 Table of occupational diseases produced by the Caisse d'assurances maladies des travailleurs
salariés  (CNAMTS).WT/DS135/R
Page 20
the prevention of respiratory diseases.  Several meetings took place with the Canadian party
immediately after publication of the INSERM report and prior to the issue of the Decree on a ban;  at
that time, Canada asked for a derogation.  Several meetings took place between the French and
Canadian parties following discussions between the relevant Canadian and French ministers and on
the instructions of the Prime Minister, who had received a letter from Mr. Chrétien.  These meetingstook place between July 1996 (announcement of the decision to impose a ban) and December 1996
(the ban entered into effect).
3.45 The EC stress that the scientific discussions took place in an atmosphere of mutual respect.
On 8 October 1996, the Quebec experts met the experts from INSERM and then on 9 October 1996
they met the adviser on asbestos to the French Mini ster for Social Affairs (Mr. Roigt), together with
the competent person from the Industrial Relations Directorate.  Moreover, on 29 October 1996,France arranged an entire day's technical meeting between the Canadian-Quebec delegation and the
French experts.  During the day, the questions of the harmfulness of asbestos, the question of
substitute fibres, the criteria on which France would allow exceptions to the ban, and the "safe" use of
asbestos-cement were discussed.  On that occasion, the experts from Canada and Quebec
acknowledged the high quality of INSERM's work and showed an interest in discussing a number ofscientific points, as is customary among researchers.  The EC point out that this oral recognition is in
contrast with the criticism of the INSERM report expressed by Canada.
41
(a) As regards the harmfulness of asbestos, the Quebec delegation reported on the
recently published study by Mr. Siemiatycki on women living in close proximity toasbestos mines (the study by Camus et al . had not yet been published when the
INSERM report was produced).  The French experts from INSERM pointed out that
they were aware of the study and had examined it in the context of their joint report.
In their view, it showed that the risk of bronchial cancer was practically nil at that
level of exposure, but that there was a risk of contracting mesothelioma from theasbestos contained in the dust from the chrysolite mines, at levels of exposure
accumulated over a lifetime of a few fibres per cm
3 per year.  The French experts
pointed out that this level was easily reached during the cutting of asbestos-cement
and that no country had succeeded in containing this risk.
(b) As regards substitute fibres, the French party felt that further epidemiological data
should be obtained, although no victims of the use of substitute products had so farbeen reported. Decisions were taken "on the basis of the knowledge available".  The
Canada-Quebec delegation informed the Ministry of Labour and Social Affairs of its
desire to be involved in INSERM's work on the fibres used as substitutes for asbestos.
Since the purpose of the report was to summarize all international studies on the
subject, there was no objection to consulting Quebec scientists as part of the research.At the beginning of 1997, however, when INSERM looked for specialists in the field,
its bibliographical search did not identify any Canadian experts (whether English or
French speaking) with sufficient publicati ons on the subject. In the end, two experts
were proposed by Canada's Health and Safety Research Institute, and both Dr. Gibbs
and J. Siematycki attended the hearing organized by INSERM.
(c) As regards exceptions to the ban,  the French administration presented the draft decree
and explained the circumstances in which an exemption might be granted:  there had
to be no substitute products performing an equivalent function to asbestos which were
less harmful to workers and which offered equivalent technical guarantees of safetyfor users.
                                                     
41 See Section III.B.7 of this report.WT/DS135/R
Page 21
(d) Lastly, the issue of the "safe" use of asbestos-cement was discussed. The main
argument put forward by Canada and by Quebec in favour of extending the list of
exemptions was that asbestos can be used in a "safe" way. The French experts from
the INRS (National Safety Research Institute) and the Caisse Nationale d'Assurance
Maladie  (National Sickness Insurance Scheme) presented findings based on
measurements which were significantly different from those presented by Canada.
3.46 The EC point out that, for reasons of substance, the request that an exemption be granted for
asbestos-cement piping was not admissible. The general ban laid down by the Decree allows for
exemptions only when there is no substitute product which can perform an equivalent function and
which:  (i) presents less of a risk to workers;  and (ii) offers all technical guarantees of safety for
users.  In the case in point, it was very easy to replace asbestos by a less dangerous product. Allalternatives to asbestos-cement are less dangerous than chrysotile. In fact, all asbestos-cement can be
replaced by products which show no sign of be ing carcinogenic, whether they are non-fibrous
products (ductile iron, plastic) or fibrous products (cellulose, polyvinyl alcohol).
3.47 The EC recall that the ban on asbestos or any material or product containing it has been in
force since 1 January 1997.  It applies to both industrial and commercial use, i.e. manufacture,
processing, possession with a view to selling, offering for sale, import, export or any form of transfer.
However, there are a very limited number of strictly monitored exceptions to the general ban.  If a
temporary and limited exemption is to be granted, there must be no substitute product which could
perform an equivalent function and which:  (i) on the basis of current scientific knowledge, presentsless of a risk to workers;  and (ii) provides equivalent guarantees in terms of safety of use (braking
performance, for example).  Firms which manufacture asbestos-based products or import asbestos
must make a declaration to the Ministry justifying the use of asbestos and reporting on the progress
made as regards substitution. The administration then registers the declarations which it considers to
be in compliance with the legislation.  The exceptions are included in a list drawn up by ministerialorder.
3.48 The EC indicate that asbestos was used in numerous industrial applications because of its
physico-chemical properties: good mechanical resistance (especially to pressure), resistance to high
temperatures and to chemical attacks (especially corrosion).  Replacing it with a substitute material
requires a strict approach applied on the basis of specifications setting out what is required of the
substitute product in very specific conditions of use. Once the substitute product has been identified, itmust not only be tested, but its reliability over time must also be checked. This can be done by an
external body (national or international) on the basis of qualification and approval procedures which,
in sectors such as the aeronautical, nuclear or chemical industries, are very long and complex. The
sectors most affected by residual use of asbestos are the nuclear, chemical, petrochemical and
aeronautical industries.
3.49 The EC emphasize that the Decree provides for an updating procedure designed to eliminate
the remaining exceptions as rapidly as possible. The list of categories of exception laid down by
ministerial order is therefore reviewed each y ear by the Senior Council for the Prevention of
Occupational Hazards, which shortens the list in the light of technical developments.
(a) The companies registered as a result of the annual declarations made in order to
qualify for exemptions from the ban on asbestos are questioned on the progress they
have made towards the replacement of asbestos. The findings are compared with the
data held by the experts from the INRS
42 and the Caisse Nationale d'Assurance
Maladie.  Experts from co-signatory ministries are consulted (Directorate-General for
Competition, Consumer Affairs and Fraud Prevention, Ministries of Industry,
Infrastructure, Environment, and Agriculture, and the Directorate-General of
                                                     
42 Institut National de Recherche en Sécurité (National Safety Research Institute).WT/DS135/R
Page 22
Customs).  On this basis, proposals for changes are sent for an opinion to the Senior
Council for the Prevention of Occupational Hazards, which comprises employer and
employee representatives as well as experts.
(b) For example, the following proposals were made at the end of 1997.
(i) As regards brake linings, substitute products have been developed for heavy
industrial installations and equipment, ships and special vehicles including
heavy land vehicles and vehicles weighing more than 3.5 tonnes, except for
certain military vehicles for which the approval procedures are not yet
complete.  However, it seems that the brake linings used in aircraft braking
systems can be replaced only in certain cases. Where asbestos performs thefunction of braking agent, tests seem to have been conclusive. However, if
asbestos is used as a binder between the brake support and the braking
component (generally a fibreglass compound or Teflon), no substitute product
has yet been found. Likewise, brake linings for compressors and sliding-vane
rotary vacuum pumps have to endure extreme pressures (over 300 bars) andtemperatures (over 350°C). The substitute products tested to date have not
proved satisfactory; often made of graphite, they are deformed by the
combined action of pressure and temperature.  Finally, it was proposed that
only those exceptions be withdrawn which applied to heavy industrial
installations and equipment, ships and floating structures and specialnon-military land vehicles weighing over 3.5 tonnes.
(ii) As regards gaskets, in sectors such as the aeronautical, nuclear and chemical
industries or in specific applications, less progress has been made, given the
multiplicity and complexity of technical constraints. Substitute products donot offer sufficient guarantees in terms of their resistance over time to
corrosive fluids.  Accordingly, it was proposed that the exemption, as set out
in the relevant paragraph, be maintained in its entirety.
(c) Monitoring is organized as follows:  the list of firms which have made a declaration in
accordance with the legislation and the list of their customers are forwarded to the
other ministerial departments concerned and to the inspection units so as to facilitatechecks by customs authorities, by the Directorate-General for Competition, Consumer
Affairs and Fraud Prevention, and by the Labour Inspectorate.
4. Circumstances of exposure to asbestos and asbestos-related pathologies
3.50 Canada states that,  today, science generally recognizes few or no demonstrable effects of
environmental asbestos on health, and concludes that, at worst, the risk is undetectable.
43  Asbestos is
used in a vast array of products, because of its very useful and often unique characteristics. During
extraction and handling of the mineral, manufacturing and use of its products, as well as their final
disposal, however, a certain number of asbestos fibres are released into the environment. Because the
hazards resulting from high levels of exposure to asbestos fibres in certain work environments of thepast are known, there is concern over the possible effects of any exposure to concentrations of
asbestos.  Today, chrysotile fibres are bonded to cement or other particulate or encapsulated materials
in a plastic, cement, asphalt, or resin matrix.  Brittle products and, to a negligible extent, non-brittle
products, however, release a certain number of fibres.  Canada considers that, in spite of an ever-
                                                     
43 Canada notes that, according to the World Health Organization, "risk of mesothelioma and bronchial
cancer attributable to asbestos in the general population is undetectably low;  the risk of asbestosis is practicallynil".  (World Health Organization, Environmental Health Criteria 53:  Asbestos and Other Natural Mineral
Fibres, Geneva, p.135).WT/DS135/R
Page 23
increasing understanding of the importance and impact of the sources and characteristics of asbestos
fibres on human health, much confusion and many misunderstandings exist regarding the various
aspects of asbestos production, such as product manufacturing, the types of fibres used, their presence
in the environment, and, especially, the health effects of exposure.  Canada contends that, as far as the
health effects of exposure to asbestos in the workplace are concerned, it is now recognized that in thepast several lung diseases were caused by high levels of exposure to asbestos dust inhaled under
various working conditions. In the early 1950s, there were many concerns about the link between
exposure to asbestos dust in the workplace and certain diseases (asbestosis, lung cancer, and
mesothelioma).  In spite of the great contrasts between industrial exposure in the past, which
obviously had certain effects on health, and exposure in the general environment today, fears of health
risks remain excessive; and yet, the risk is undetectable for the public at large.
44  In order to evaluate
the health effects of exposure to asbestos, a considerable number of toxicological tests have beenperformed on animals. Canada asserts that currently most of the results indicate that only fibres of
more than 5 micrometers are pathogenic, and that considerable amounts must be inhaled (or implanted
in animals) to cause reactions, including cancer. The length of most fibres in the ambient air,
however, is less than 5 micrometers.
45
3.51 According to Canada, it is inevitable that some asbestos fibres are released into the air, water,
and soil due to the use of asbestos and asbestos products on a worldwide scale, but concentrations of
asbestos in the environment were higher in the past, because of inadequate control measures. In
addition to artificial sources, some natural sources (rock alteration) are a significant source of fibres in
the ambient air; even water contains natural asbestos fibres.  According to the WHO, the total amountof asbestos released by natural sources probably exceeds emissions from industrial sources.
46  A large
number of artificial asbestos sources have been stud ied but, in most cases, there did not seem to be
significant fibre emissions. Some of these sources, however, have raised the most fears, for example,
brake linings, factory emissions, mines, shipyards,  and asbestos in buildings.  Although there were
some major industrial emissions in the past, a good share of current atmospheric emissions are notrespirable, because of the relatively large size of most dust particles and other substances to which the
fibres are normally linked. Canada considers that the strong bond between chrysotile and cement in
chrysotile-cement products reduces the release of fibres into the air to a minimum.
47  Furthermore,
some asbestos products are coated, which makes it very difficult for the fibres to be released.
Regarding brake linings, because of the high temperatures caused by friction, up to 99 per cent of the
asbestos is physically and chemically transformed into inert and non-hazardous material. Moreover,
the fibre remaining after this transformation is less than 5 micrometers in length, and, therefore, hasno biological effects.
48 One of the major problems that remain is the elimination of brittle asbestos
products that were once used in buildings, especially if they contain amphiboles, as well as the
demolition of buildings that may contain significant amounts of these products.
                                                     
44 Id.
45 Id., p.134;  Dunnigan, J. and Seymour, N., L'amiante et la santé: une mise à jour scientifique , rev.
ed., 1991, p. 24.
46 World Health Organization Environmental Health Criteria 53: Asbestos and Other Natural Mineral
Fibres , WHO, Geneva, 1986, p. 34.
47 Commins, B. T., Estimations of Risk from Environmental Asbestos in Non-Occupational Exposure to
Mineral Fibres, IARC Scientific Publication no. 90, Lyon, 1989, pp. 476 and 477.
48 See, in particular, Commins, B.T., The Significance of Asbestos and Other Mineral Fibres in
Environmental Ambient Air , Cummins Associates, Berkshire, U.K., 1990, p. 17.  See also Commins, B.T.,
Estimations of Risk from Environmental Asbestos in Non-Occupational Exposure to Mineral Fibres, IARC
Scientific Publication no. 90, Lyon, 1989, pp. 476 and 477. Canada notes that the data obtained in the
United Kingdom under situations of very heavy vehicular traffic indicate that the use of asbestos in brake linings
does not measurably contribute to atmospheric asbestos concentrations in the urban environment. Even at two
heavily-used intersections in the London metropolitan area, concentrations varied from 0.0002 to 0.0004 f/ml(Jaffrey, S., Environmental Asbestos Fibre Release from Br ake and Clutch Linings in Vehicular Traffic (1990)
34 Ann. Occup. Hyg., Vol.34, p.529.)WT/DS135/R
Page 24
3.52 Concerning the concentrations of fibres in the environment, Canada notes that asbestos fibres
are present in outdoor as well as indoor air. The average long-term concentration calculated for
several years of exposure, taking into account indoor and outdoor air conditions, appears to be
between 0.0002 and 0.001 f/ml of more than 5 micrometers, with an average concentration of
approximately 0.0005 f/ml of air.49  Some of this asbestos comes from natural erosion. In urban areas,
however, atmospheric asbestos comes mainly from the extensive use of this product. It seems that
ambient air concentrations are currently lower than those observed a few years ago. Regarding
exposure to asbestos from drinking water, whether or not it is routed through asbestos- cement pipes,
drinking water contains 200,000 to 2,000,000 fibres per litre.50  Canada considers that, in order to
evaluate the health effects of asbestos in the environment, it is important to determine the
consequences of human exposure, as well as possible inhalation or ingestion of these fibres.  There is
a lot of confusion regarding the inhalation of all types of particles that penetrate the airways. InCanada's view, it must be recognized that only extremely fine particles can penetrate the deep areas of
the lungs.  Many inhaled particles are immediatel y exhaled, because they do not succeed in depositing
themselves. Large particles that penetrate through the upper parts of the airways are handled by an
extremely effective biological elimination system; the mucociliary mechanism traps the fibres and
pushes them out of the airways.  Canada considers that the health effects of ingested asbestos arepractically nil.
51 The results of animal studies on ingestion by feeding have been absolutely negative,
as have the vast majority of human epidemiological studies conducted in areas where asbestos
concentrations in water are naturally high due to the presence of asbestos in the rock over which the
water flows.52
3.53 Canada notes that the WHO clearly reaffirmed, particularly in a 1989 follow-up, that the useof chrysotile-cement pipes is completely safe for transporting drinking water.
53  It is essential to
distinguish clearly between the obvious health effects associated with very high exposure to asbestos
in the workplace and the absence of demonstrable health effects linked to current environmental
asbestos concentrations. Therefore, the WHO considers the risk of mesothelioma and lung cancerattributable to mass exposure to asbestos is so low as to be undetectable.
54  According to Canada,
long-term exposure at rates of around 0.0005 fibres of more than 5 micrometers per ml of air
corresponds to a possible cancer risk equal, at the most, to the extremely low risks of "rare events,"
for example, the risk of being killed by lightning or getting cancer from consuming meat grilled over
charcoal, or by an increase in the exposure to cosmic rays caused by one transatlantic airline flight
each year. Consequently, the risk of cancer due to the exposure to an environmental concentration of
0.0005 f/ml of more than 5 micrometers would be only about one in 100,000 (estimated lifetime risk).
                                                     
49 Spengler, J. et al. , Summary of Symposium on Health Aspects of Exposure to Asbestos in Buildings ,
Energy and Environmental Policy Center, Harvard University, 14-16 December, 1988, p. 16;  Doll, R., and Peto,J., Asbestos; Effects on Health of Exposure to Asbestos,  Her Majesty's Stationery Office, U.K., 1985, p. 53.
50 Dunnigan, J. and Seymour, N., L'amiante et la santé: une mise à jour scientifique , rev. ed., 1991,
p. 24.
51 According to Canada, the studies concluded that there is no health risk linked to the ingestion of
asbestos. See, in particular, Commins, B. T., Estimations of Risk from Environmental Asbestos in Non-
Occupational Exposure to Mineral Fibres, IARC Scientific Publication no. 90, Lyon, 1989, pp. 476-478.
52 Dunnigan, J. and Seymour, N., L'amiante et la santé: une mise à jour scientifique , rev. ed., 1991,
p. 53.
53 Canada notes that natural concentrations of asbestos fibres are found in spring water, whether or not
asbestos-cement pipes are used.  The possible contributio n to asbestos concentration in water after the use of
asbestos-cement pipes was studied in several countries. For example, in the State of Illinois, in theUnited States, in 15 public water supply networks, some of which were 50 years old, there was no difference infibre concentrations between samples of drinking water before and after they passed through asbestos-cement
pipes. (Hallenbeck, J. et al. , Is Chrysotile Asbestos Released from Asbestos-Cement Pipes into Drinking Water?
(1978) Amer. Water Works Ass., Vol. 70, no. 2, p.97).  See also World Health Organization, Letter to T.A.Jafri, Asbestos in Drinking Water/Amiante dans l'eau de boisson , Helmer, D.R., WHO, Geneva, 5 April 1989.
54 World Health Organization , Environmental Health Criteria for Asbestos and Other Natural Mineral
Fibres , Geneva, 1986, p. 135.WT/DS135/R
Page 25
In other words, it is a rate that does not justify any additional measures.55 According to the French
Académie nationale de médecine , "this figure, which equals zero based on the degree of biological
uncertainty […] indicates that there is no demonstrable risk."56  These estimated environmental risk
values are based on workplace health data and on the use of a linear lung cancer model, as well as on
an exponential model for mesothelioma.  The estimated values are conservative for various reasons,particularly because of the fact that a large number of previous workplace exposure values
underestimated the actual exposure conditions for different types and mixtures of asbestos, and
because the model used assumed they would apply even to extremely low exposure values, which
means that they do not consider the possibility of a "threshold" effect under which there would be no
detectable effect. In reality, Canada concludes that the risk could be even lower because, now, the
public is exposed mainly to chrysotile, which is less hazardous than amphiboles.
3.54 Canada points out that environmental risks have to be put into perspective.  Generally, it is
acknowledged that, of the risks to which our society is exposed, some are less serious than others.
Often, however, many people have a poor appreciation of the relative value of these risks, even
though they have been published for several years. The following table provides an overview of the
risks of exposure to environmental asbestos concentrations in comparison with other risks. It showsthat the estimated risk attributed to this exposure is equal to or lower than that of very rare events.
                                                     
55 Commins, B.T., The Significance of Asbestos and Other Mineral Fibres in Environmental Ambient
Air, Cummins Associates, Berkshire, U.K., 1990, p. 62. According to Commins, "[A]ny risk for future
exposures to asbestos are of course likely to be lower still because of improving control measures." (p. 64.)
56 Académie nationale de Médecine (Étienne Fournier), Amiante et protection de la population exposée
à l'inhalation de fibres d'amiante dans les bâtiments publics et privés , Bulletin de l'Académie nationale de
médecine, Vol. 180, no. 4, p. 5.WT/DS135/R
Page 26
EVALUATION OF LIFETIME RISKS (SELECTED CASES)57 (according to data mainly from the United States)
Lifetime risk per 100,000 inhabitants
Extremely high risk
Smoking (all causes of mortality)
Smoking (cancer only)21,000
8,800
Very high risk
Driving an automobile 1,600
High risk
Frequent air travel (deaths)
Cirrhosis of the liver, moderate alcohol consumption (deaths)Pedestrians hit by automobiles (deaths)730
290290
Moderate risk
Low alcohol consumption (one  beer per day) (cancer)
Death by drowning (all recreational activities)Atmospheric pollution, U.S., benzopyrene (cancer)
Natural radiation at sea level (cancer)
Cosmic rays, frequent airline travel (cancer)150
140110
110
110
Low risk
Household accidents (deaths)
Secondhand smoke (cancer)Diagnostic X-rays (cancer)(Rate of risk which few people are willing to use their own resources to reduce, Royal Society,
London.)88
7575
70
Very low risk
Natural radiation, people living in brick houses (cancer)
Smallpox vaccinations, by vaccination (deaths)One transcontinental flight per year (deaths)Saccharine, average consumption in the U.S. (cancer)Consumption of Miami or New Orleans water (cancer)
(Rate of risk at which few people feel measures are necessary, in the absence of clear links to
consumer products, Royal Society, London.)35
222215
7
7
Extremely low risk ("rare events")
One transcontinental flight per year, natural radiation (cancer)
Lightning (deaths)Hurricane (deaths)Consumption of one charcoal cooked steak per week (cancer)
RISK DUE TO ENVIRONMENTAL ASBESTOS CONCENTRATIONS (cancer) (approximately 1
per 100 000 or less
58)
("Acceptable" risk, WHO, drinking water (cancer))(Additional restrictive measures are certainly not justified, Royal Society, London, United Kingdom)4
333
1
1
0.7
3.55 Canada emphasizes that, because of the extremely low risks linked to the current use of
asbestos products, there is no reason to have to reduce the use of chrysotile or tighten restrictivemeasures if adequate restrictive measures have been taken. Such was the case in France in 1997,
according to the French Senate and National Assembly.
59  Despite the importance of applying general
restrictive measures, there are currently three specific cases that require particular vigilance: (i) the
presence and elimination of old asbestos products in buildings;  (ii) the demolition of buildings
                                                     
57 Commins, B. T., Estimations of Risk from Environmental Asbestos in Non-Occupational Exposure to
Mineral Fibres, IARC Scientific Publication no. 90, Lyon, 1989, pp. 476-483.
58 Results of exposure in buildings containing sprayed asbestos over a period of 20 years (See Doll, R.,
and Peto, J., Asbestos;  Effects on Health of Exposure to Asbestos , Her Majesty's Stationery Office, U.K., 1985,
p. 53.
59 Le Déaut, J.-Y. and Revol, H., L'amiante dans l'environnement de l'homme: ses conséquences et son
avenir , Office parlementaire d'évaluation des choix scientifiques et technologiques, National Assembly
no. 329/Sénat no. 41, 1997, p. 133.WT/DS135/R
Page 27
containing significant amounts of asbestos;  and (iii ) the elimination of asbestos waste. In addition,
particular attention must be paid to the hazards caused by amphiboles.  Because of the relatively high
risks, compared to those of chrysotile, which are linked to exposure to various types of amphiboles in
the workplace, most countries, including Canada and France, have prohibited their use.  Special
restrictive measures were adopted for extraction and crushing, as these activities can produce largeamounts of dust.  Appropriate regulation of modern  crushing procedures allows asbestos to be
exploited with minimal emission of fibres into the environment.  For this purpose, for example,
effective air purification systems such as electrostatic precipitators, cyclones, or sleeve chambers are
used.
60 The uncontrolled use of certain types of asbestos and of certain work processes was
responsible in the past for unacceptable emissions. To day, with the help of advanced technologies and
the widespread use of wet processing, it is relatively easy to use chrysotile in such a way as to ensure
the protection of workers' health while avoiding possible air contamination.61  Controlled use has been
implemented in a number of countries.62
3.56 Regarding the limitation of asbestos emissions during construction activities, Canada notes
that the use of modern chrysotile products prefabricated in the factory for the construction industry
reduces the problems of environmental contamination to a minimum.63 In these chrysotile-cement
construction materials, the asbestos fibres are strongly linked to a matrix. If it should, nonetheless,
become necessary to cut them on the construction site, the use of tools that almost entirely eliminate
emissions (low-speed saws, with water injection or equipped with suction units), and the wearing of a
                                                     
60 Canada indicates that, over the last 15 years, ambient air concentrations of asbestos in the institutions
where chrysotile was being extracted in Quebec never exceeded 0.02 f/ml.  In 1986, A. Churg (See Churg, A.,
Lung Asbestos Content in  Long-Term Residents of  a Chrysotile Mining Town ,  (1986) 134 Amer. Rev. Respirat.
Diseases 125) concluded that residents of the mining region of Thetford Mines in Quebec showed no sign ofdisease due to asbestos and that repeated epidemiolo gical studies did not document any abnormal incidence of
respiratory diseases in persons that had never worked in this industry.  Canada also draws attention to the workof Dr. Camus et al (Camus, M., Siemiatycki, J., Meek, B., Nonoccupational Exposure to Chrysotile Asbestos
and the Risk of Lung Cancer , (1998) 338, New England Journal of Medicine 1565.)  They published a vast
study on women in chrysotile mining communities in Quebec, many of whom were exposed to very high levels
of fibres between 1920 and 1975. These women were subjected to exposure of 0.0107f/ml, higher than thecurrent exposure limits in France, and literally thousands of times higher than the levels measured in publicbuildings. Nonetheless, Canada notes that no excess in lung cancer was detected in this population.  Accordingto the study's authors, this is particularly important in light of the current French situation. In fact, applying therisk model adopted by France for the exposure studied results in a forecast of approximately 100 lung cancer
deaths, while in reality there are none. Likewise, use of the French risk model would have resulted in estimates
of approximately 250 and, at any rate, no less than 50 deaths from mesothelioma, whereas the preliminaryresults of the study in question show only 10 cases, some of which may be associated with exposure toamphiboles.  Research continues, particularly with an analysis of the work history of each individual in order todetermine the exact link, if any, between these cases of mesothelioma and on-the-job exposure, as well as
exposure to amphiboles.
61 See, in particular, Bragg, G.M., Basics of Asbestos Dust Control, Institut de l'amiante,  Montreal,
1988.
62 See paras. 3.120 et seq below .
63 Canada points out that in Germany, for example, a study revealed the low degree of chrysotile fibre
emissions in the environment from chrysotile-cement roofing materials, even when these were in a state of
advanced corrosion. These chrysotile fibre concentrations, which were measured in urban areas, were well under
0.001 f/ml, i.e. the concentration found acceptable by the German health authorities. (Teichert, U. (1986) 46Staub Reinhaltung der Luft 432, p. 7 of the English translation.)  In Austria, after having compared chrysotilefibre concentrations between areas with and without chrysotile-cement roofing (< 0,0001 f/ml), it was concludedthat there was no significant link between the use of chrysotile-cement based materials and the chrysotile fibreconcentrations found in the areas concerned. (Felbermeyer, W. S., Ussar, M.B., Environmental Pollution by
Atmospheric Effects on Asbestos Cement Sheets , Institute for Environmental Protection and Clean Air, Leoben
Austria, 1980).  Canada notes that, in Australia, the possi ble contribution of chrysotile-cement roofing materials
on school buildings to environmental asbestos concentr ations has been analysed. Most of the concentrations
were found to be equal to or less than 0.0002 f/ml. (Safety and Welfare of Western Australia, Asbestos Cement
Products , Report of the Working Party, 1990).WT/DS135/R
Page 28
mask by the operator guarantee their safety.  It is easy to obtain a copy of the codes of practice that
employees must follow when handling modern chrysotile products.64
3.57 Canada considers that, in general, the extremely low risks of exposure to asbestos in buildings
have been accurately demonstrated.65 In some cases, however, the materials enclosing the sprayed
asbestos in the buildings can deteriorate and pose a certain hazard to their occupants. In France, as in
Canada and everywhere else, regulations provide that, beyond a certain concentration of airborne
asbestos in buildings, corrective measures such as isolation, encapsulation, or even elimination must
be considered. If a large amount of asbestos is present in an old building to be demolished, especially
if amphiboles are involved, it may be advisable to el iminate these materials in advance, if possible.
The procedures to be followed in these projects are well documented. Canada also considers that the
elimination of most modern asbestos products should present only a slight difficulty if a building hasto be demolished. It is important to use effective measures for handling, packaging, and transport, as
well as for waste disposal. The procedures to be followed for these operations are well documented
and often standardized. These measures, which are normally easy to implement, allow asbestos waste
in the environment to be kept to a satisfactory minimum.
66 Industrial waste containing asbestos is
normally easy to handle and confine, because it is often wet and, therefore, does not produce powder.Furthermore, many industries today recycle their waste because this measure, in addition to being
more economical, allows the waste to be disposed of effectively. In most countries, industries must
comply with regulations limiting emissions of asbestos into the atmosphere.
3.58 To conclude, Canada contends that, in light of the available data, there is no scientific
justification for the prohibition or reduction of the manufacturing or use of modern asbestos products.
This conclusion is as valid for developed countries as it is for developing countries.  It is enough to
continue to take adequate restrictive measures, particularly for mineral extraction and crushing, the
manufacturing and use of products, and the elimination of asbestos waste.
3.59 The European Communities  respond that Canada presents the health effects of asbestos by
distinguishing on the one hand the environmental risks and, on the other, certain asbestos-related
occupations:  mining and crushing, manufacturing of  products, building and demolition of buildings,
elimination of waste.  Canada simply disregards the fact that once asbestos has been used in the
construction of a building and until it is demolished, any installation containing asbestos is likely,
during its life cycle, to require some form of plumbing, heating or electrical work carried out by
professionals or amateurs.  Regular servicing and maintenance work carried out by people who areunaware of whether the material on which they are working contains asbestos or not may, if asbestos
is present, lead to extremely high peaks of exposure, significantly higher than the exposure limits, and
which have been proven to be carcinogenic in a pe rfectly "detectable" way.  According to the EC, the
large majority of cancers due to asbestos are the result of such work (servicing and maintenance) on
materials containing chrysotile.  For many years, scientific bodies and governmental authoritiesdisregarded this type of risk.  In the early 1990s, scientists started to note an increase in cases of
mesothelioma affecting professionals who had never worked in the asbestos-manufacturing industry.
France, following the example of several other countries, became aware of the seriousness of the risk
faced by these workers and individuals, exacerbated by the number of asbestos products freely on sale
and frequently used.  In such situations, controlled use practices, which the EC consider do not in anycase eliminate the risk, are inapplicable.  Persons liable to be exposed to the risk are unaware that they
are working with products containing asbestos.  They are therefore unable to protect themselves.
                                                     
64 See, in particular, Code of Practice on Safety in the Use of Asbestos , International Labour
Organization, Geneva, 1984.
65 Commins, B.T., The Significance of Asbestos and Other Mineral Fibres in Environmental Ambient
Air, Cummins Associates, Berkshire, U.K., 1990, p. 19.
66 Institute of Waste Management, Code of Practice for the Disposal of Asbestos Waste , Northampton
(UK), Institute of Waste Management, 1988.WT/DS135/R
Page 29
Even if they did know, controlled use practices imply67 the use of costly material and equipment and
make even the simplest and quickest operations very complicated.  Taking these elements into
account, France decided, by means of the regulation contested by Canada, to halt the dissemination of
such risks by banning all future uses of products containing asbestos.
3.60 The EC point out that Canada asserts that "today science generally recognizes few or no
demonstrable effects of environmental asbestos on health ".  If the idea of ambient air is limited to the
usual levels of exposure in towns or buildings that have not deteriorated, the INSERM report reaches
the same conclusion unambiguously in several places.  But the French regulation is not solely
intended to prevent the risk due to ambient exposure, i.e. exposure caused by living in a building
containing asbestos.  The French regulation calls for caution in this area, but the purpose of the
contested ban is to prevent the extension of risks due to exposure, usually only of an occasionalnature, for professional activities (servicing and maintenance in buildings/public works, for example)
or leisure activities (handymen).  The EC state that these risks have been scientifically proven both by
metrological data concerning the concentration of asbestos fibres and by international epidemiological
data.
3.61 The EC consider that the Canadian assertion that "Today chrysotile fibers are bonded" or
"encapsulated" in other materials and therefore do not present any risk is misleading because health
problems are not simply due to the presence of chrysotile fibres in materials, but to the fact that very
high levels of fibres are released into the atmosphere when working with these materials, for example,
when sawing, cutting, etc.  This idea is often repeated in Canada's arguments in order to make itappear that asbestos incorporated in various materials, including asbestos-cement, is not dangerous:
the purpose of this assertion is to provide misleading reassurance, and it will not be systematically
contested.  Moreover, it should be noted that the manufacture of asbestos-cement has always required
that the asbestos and other materials be bonded.  In this connection, it cannot be stated, as Canada
does, that there are "modern" manufacturing methods .  To the knowledge of the EC, the production
methods for asbestos-cement have not evolved to any significant degree for many years.  It is also
wrong to claim that "The strong bond between chrysotile and cement in chrysotile-cement products
reduces the release of fibers into the air to a minimum".  This claim is incorrect when the product in
chrysotile-cement is the subject of servicing or ma intenance which requires drilling or cutting.  In
such cases, the release of dust into the air is several hundred times higher than the value limit allowed
in France, and the United States, or even the limit recommended by the WHO and cited by Canada.
The EC note that the risks of "asbestosis" have be en known since the beginning of the century and the
first regulations adopted to protect the health of workers from the dangers of asbestos were drawn up
in England in 1931, as is recalled in the European submission.  The risks of asbestos for health have
thus been recognized for a very long time.
3.62 The EC point out that Canada cites very low risks for health at very low exposures
(0.0005 f/ml).  It should be emphasized, however, that:  (i) these are the same values as those cited in
the INSERM report for such levels of exposure, which Canada appears to disregard;  (ii) these values
were obtained using the same model as that used by INSERM, whose validity Canada nonetheless
denies.  If the model can be used by Canada to show that the risks are low at low levels of exposure,
why would it not be valid for higher levels of exposure?  The EC note that Canada does not provideany justification for this contradiction and adds that this model does not take into account "a threshold
below which there is no effect":  this ignores the scientific consensus that there is no such threshold.
The WHO report of 1988 on the dangers of chrysotile (cited by the EC but never by Canada, which
only refers to the 1986 WHO report) recognizes that there is no threshold for chrysotile.  The EC note
that Canada acknowledges that it has banned the use of amphibole asbestos, like many othercountries.  Taking into account the equally dangerous threat of lung cancer from both chrysotile
asbestos fibres and amphibole asbestos fibres and the theoretical possibility of so-called "safe" use,
                                                     
67 Aubier, M., Fournier, M., Pariente, R., Pneumologie , Médecine-Sciences, Flammarion, Paris, pp.453
et seq.WT/DS135/R
Page 30
the Canadian ban on amphiboles alone appears inconsistent, unless it is justified by the fact that
Canada does not produce amphibole fibres.  It is difficult to understand why it should not be possible
to ensure "safe" use of fibres of the amphibole variety when Canada claims that this is possible for
fibres of the chrysotile variety:  the production methods and the conditions of use are nonetheless
strictly identical in both cases.
3.63 According to the EC, Canada's assertion that "I t is relatively easy to use chrysotile in such a
way as to ensure the protection of workers' health" is a euphemism that hides the real problems faced
in practice.  On the one hand, such protection can only exist if the worker knows he is handling
asbestos products.  On the other, following the ISO 7337 standard recommendations means
cumbersome and costly individual measures (practically turning oneself into a cosmonaut) without
being certain that no fibre can get through the protection.  Furthermore, the asbestos-cement market isvery diffuse.  It is utopian to imagine that all the public concerned could apply the Canadian safe use
programme.  France recognizes that this is the only way of limiting as far as possible the risks of such
operations when the asbestos is already there and it has adopted very strict regulations to this effect.
The EC nevertheless contest the fact that Canada seeks to impose the adoption of such measures on
very large parts of the economic sectors.  In addition to their lack of effectiveness, these measureshave a significant impact on the costs of French companies and are unknown to diffuse users of
asbestos materials (on building sites, for example):  asbestos-cement products were marketed in
France as materials that did not present any particular risk, as Canada intimates when it refers to
"modern asbestos-cement materials" in which asbestos fibres are "encapsulated"!  The EC point out
that, as shown by the occupational disease statistics, it is equally impossible to ensure the effectiveprotection of workers in the raw asbestos processing  industry, even with sophisticated dust collection
and ventilation systems.
3.64 The EC consider that the Canadian claim that "the elimination of most modern asbestos
products should present only a slight difficulty if a building has to be demolished" is a euphemism.Asbestos products used in the building industry are fragile and inevitably break or dissolve, releasing
fibres into the atmosphere.  In addition, the need to remove asbestos before demolition involves huge
expenditure because any removal of asbestos requires the observance of draconian technical
regulations essential for the protection of the workers.  Lastly, the EC reject the Canadian argument
that "in light of the available data, there is no scientific justification for the prohibition or reduction of
the manufacturing or use of modern asbestos products.  Chrysotile asbestos, like other types of
asbestos, is dangerous for the health of workers and the population, no safe use allows the risk to bereduced.  Scientifically, the French measure on a general ban is justified.
3.65 The EC state that, as the risks from exposure to asbestos were gradually identified and
became the subject of preventive rules and regulations, the various types of exposure were listed and
were placed in the following three categories:  the first category includes occupational exposure ofworkers, including "primary" users and "secondary" users.  "Primary" users are those working in the
asbestos industry:  mining of asbestos, manufacture of asbestos products (asbestos fibres, asbestos-
cement, gaskets, asbestos boards for soundproofing or thermal insulation;  since 1965, there has been
no asbestos mining in France and less than 1,500 people were working in the asbestos-processing
industry at the time the ban came into effect.  "Secondary" users are in enterprises which use asbestosproducts (building industry, metalworking, shipbuilding, etc.);  enterprises which, in the course of
their work on buildings or plants, encounter materials containing asbestos (servicing and maintenance,
electrical work, plumbing, etc.);  enterprises enga ged in the removal and/or containment of asbestos,
particularly flocked asbestos;  in France, the use of asbestos products involved several hundred
thousand persons at the time of the ban and, at the present time, servicing, maintenance and do-it-yourself using asbestos products affect several million people;  removal and containment of asbestos
involve several hundred persons.  The EC note that the Canadian guide on "controlled" use covers
only the mining of asbestos and the processing of ra w asbestos into asbestos products, i.e. it applies
only to "primary" users.  According to the EC, the second category includes para-occupational and
domestic exposure, where people come into contact with workers in the first category.  ManyWT/DS135/R
Page 31
members of the general population encounter similar exposure to servicing and maintenance workers
when engaged in do-it-yourself activities.  Such individuals even undertake the removal of asbestos
on their own.  They are therefore exposed without being aware of it, for asbestos is often
undetectable, as the Canadian submission points out.  Environmental exposures are in the third
category and three types of source can be distinguished:  (i) pollution from a natural source ofgeological origin;  (ii) pollution from a particular  "industrial" source;  (iii) pollution from asbestos in
buildings and various types of equipment.  This breakdown reflects that generally found in other
industrial countries, except for those countries where asbestos is mined, such as Quebec, where
1,300 persons fall into the category of "primary" users.
3.66 The EC recall that three diseases are caused by asbestos.  Firstly, mesothelioma is a pleural
cancer for which the only known cause is the inhalation of asbestos.
68  Asbestos in all its forms
(amphiboles or chrysotile) is the only known agent which can cause mesothelioma or cancer of the
pleura.  In this disease, liquid forms between the lung and the thoracic cavity (pleurisy) causing pain
and breathlessness.  Asbestos of the amphibole type and chrysotile asbestos both cause mesothelioma,
although amphiboles would seem to be somewhat more carcinogenic (but only in the case of
mesothelioma).69  This cancer occurs mostly as a result of occasional low-intensity exposure.  After a
long latency period (lasting for 30 years on average), this cancer enters the terminal phase, which lasts
for one year on average.  There is as yet no curative treatment with any effect.  In 1996 alone, an
estimated 750 persons died of mesothelioma in France.  Secondly, cancer of the lung may be due to
the inhalation of asbestos, but unlike mesothelioma there are other known triggers.  The effects of
lung cancer are quicker to make themselves felt than those of mesothelioma and both the symptoms
and the outcome of the disease are widely known.  The first symptoms include blood in the sputum,
breathlessness and a general deterioration in the patient's health.  Only certain forms of cancer can be
treated, depending on their location and histological nature.  Both chrysotile asbestos and the
amphibole varieties can cause this form of cancer, their carcinogenic impact being comparable.70
Asbestosis is a form of pulmonary fibrosis (or pneumoconiosis) arising from an accumulation of
asbestos fibres, just as silicosis results from the inhalation of silica.  The fibrosis takes the form of a
scarring process which follows from the inflammatory reactions caused by the presence of asbestos
fibres (or silica dust) in the pulmonary alveoli.  The fibrous thickening of the thin alveolar wall
prevents the circulation of oxygen.  Once exposure has ceased, the disease either stabilizes or
becomes progressively worse, with respiratory difficulties which may end in the patient's death.  No
curative treatment is yet available.  Asbestosis results from what is considered a high level of
occupational exposure.  It develops over an average period of seven to eight years.  Currently thereare some 150 cases of asbestosis per year in France; in the United States there were on average
733 cases per year between 1982 and 1993.
71
3.67 The EC explain that, in all, asbestos is responsible for some 2,000 deaths per year in France,
including 750 deaths from mesothelioma.  These figures are based on reliable and verified data.  Inthe INSERM report (pages 172 to 180) a detailed description is given of the data in question, which
are drawn from two major French studies and from cancer records.  The figures have been fully borne
out by the surveys conducted by the Programme National de Surveillance du Mésothéliome  (PNSM)
(National Mesothelioma Surveillance Programme), which was set up under the French Health
Monitoring Authority in 1998.  In France, asbestos-related occupational diseases account for almost40 per cent of all social security expenditure in respect of occupational diseases, i.e. over F 1 billion
per year.
                                                     
68 Aubier, M., Fournier, M., Pariente, R., Pneumologie , Médecine-Sciences, Flammarion, Paris, pp.453
et seq.
69 IPCS, Environmental Health Criteria (203) on Chrysotile , World Health Organization 1998, Geneva.
70 Id.
71 Atlas of Respiratory Disease Mortality , United States: 1982-1993, US Department of Health and
Human Services, CDC-NIOSH, 1998.WT/DS135/R
Page 32
3.68 The EC point out that one important point in this connection is that mesothelioma is regarded
as a very reliable indicator of exposure to asbestos.  Researchers plot the course of the disease against
the use of asbestos since this technique yields important data for assessing the risk involved in various
situations where people are exposed to asbestos.  Unlike lung cancer, which is the other cancer caused
by asbestos, mesothelioma has certain special characteristics:  (i) apart from exposure to asbestos, noother causal factor present in the industrialized countries has been established or even seriously
suspected.  Interpretation of the course of the disease is not therefore impeded by the presence of
other factors, such as tobacco in the case of lung cancer;  (ii) the spontaneous occurrence of
mesothelioma is very rare: where no asbestos is present, the frequency of the disease is estimated at
one or two cases per year per million inhabitants,
72 with the same frequency being found in both men
and women; whenever levels are found in excess of this frequency, they are regarded as a sure
indicator of the presence of asbestos.  It is for th ese reasons that mesothelioma is studied to ascertain
the harmful effects of asbestos.  But this approach, which is justified for methodological reasons,
should not lead one to overlook the fact that most asbestos-related cancer deaths are attributable to
lung cancer.  According to the EC, it is generally recognized73 that to obtain the total number of
cancer deaths attributable to asbestos, the number of mesothelioma deaths has to be doubled at the
very least.
3.69 The EC recall four important dates which mark the progress of international awareness of the
health risks.  In 1977, the WHO, acting through the IARC, recognized that all varieties of asbestos,
including chrysotile, were carcinogenic, causing both lung cancer and mesothelioma, and classified
them in group I (known carcinogens).  In 1986, th e ILO recommended in Convention No. 162 that
legislators should make provision for the replacement of asbestos by less harmful materials or
technologies, at the earliest opportunity.  In 1996, the WHO recommended that asbestos, including
chrysotile, should be replaced by harmless substitutes wherever possible.  Lastly, in 1998, the WHO
again drew attention to the carcinogenic effects of chrysotile, particularly as a cause of mesothelioma;
it reiterated its call for the replacement of chrysotile and pointed out that numerous categories ofworker were at risk in many areas.
3.70 The EC indicate that the diseases described above and caused by chrysotile asbestos
(mesothelioma, lung cancer, asbestosis) are incurable.  As it has been recognized for decades that all
types of asbestos are life-threatening, measures to protect workers have been taken, and have been in
place for a very long time in many countries. Since regulatory measures were first put in place in the
United Kingdom in 1931, the ceilings set in many countries for exposure at work have been graduallylowered. The use of certain forms of asbestos has been banned in certain countries and that of any
form of asbestos in others. In 1977, following a great many international scientific studies, the WHO
listed asbestos in all its forms as a substance known to be carcinogenic to man.
74  Chrysotile asbestos
and amphibole asbestos, which cause identical fatal diseases, cannot be treated separately. According
to the EC, the diseases identified must be dealt with in a consistent fashion. These two varieties ofasbestos cause the same cancers and the exposure conditions are identical. The EC note that, logically,
just as it recommends the "safe" use of chrysotile asbestos, Canada could equally well have promoted
the "safe" use of amphibole asbestos rather than approving and encouraging its prohibition.  It is
difficult to understand how Canada can accept the grounds for government measures banning
amphibole asbestos while denying their legitimacy in the case of chrysotile.
3.71 The EC point out that asbestos is the cause of an international public health problem which
affects both France and Canada.  Mortality due to mesothelioma has been increasing in men in
                                                     
72 McDonald,  J.C., McDonald, A.D., Epidemiology of Mesothelioma .  In: Liddell, D.K., Miller, K.,
eds. Mineral Fibers and Health.  Boca Raton FL: CRC Press, 1991: 143-164.
73 Peto, Decarli, La Vecchia et al, The European Mesothelioma Epidemic , British Journal of Cancer,
1999, 79 (3/4): 666-672.
74 IARC Monographs on the Evaluation of Carcinogenic Risk of Chemicals to Man, Asbestos , Vol.14.WT/DS135/R
Page 33
industrialized countries by some 5 to 10 per cent per annum since the 1950s.75 A similar increase has
also been seen in France.76  A recent study coordinated by J. Peto77 found that in seven European
countries nearly 10,000 people had died from mesothelioma during the period 1990-1994.  The most
recent forecasts on mesothelioma mortality show that over the next few decades there will inevitably
be hundreds of thousands of deaths caused by expos ure to asbestos dust. Peto's 1999 study, mentioned
above, also looks at the evolution of pleural mesothelioma mortality in six Western Europeancountries (Great Britain, France, Germany, Italy, the Netherlands, Switzerland) over the period
1995-2029. This study estimates the total number of deaths due solely to mesothelioma in these six
countries at around 200,000. According to the EC, the number of deaths will at least double between
the periods 1990-1994 and 2015-2019, when it will reach 6,700 deaths per annum. If these figures are
extended to all the countries of Western Europe and deaths from lung cancer are added, by 2029
around 500,000 deaths from cancer will have been caused by exposure to asbestos.
3.72 The EC indicate that, in France, the number of mesothelioma deaths in 1996 is estimated at
750. Contrary to what Canada states,
78 this figure of 750 estimated by INSERM rests on solid data.
The data come from two major French studies based on actual cases of mesothelioma since 1979 in
the geographical areas covered by the cancer registers in France. The frequency of mesothelioma is
steadily increasing: all the French registers listing cases of mesothelioma show that the increaseobserved is 25 per cent every three years.  According to the EC, these data are fully confirmed by the
first available data provided by the Programme National de Surveillance du Mésothéliome  (PNSM),
which was set up under the authority of the Réseau National de Santé Publique  in 1998.
79  A recently
published study,80 similar to that by Peto et al ., predicts that the annual number of deaths from
mesothelioma in France will continue increasing until 2020, in all the hypotheses studied. By thatdate, there could be 1,040 annual deaths from mesothelioma among men; the total number of deaths
from mesothelioma over the whole period 1996-2020 could be 20,000 deaths among men and 2,900
deaths among women.  INSERM has estimated that around 1,200 deaths from lung cancer were
caused by asbestos in France in 1996.
81
3.73 The EC note that, in Canada, the promoter of the so-called "safe" use of chrysotile, the healthsituation is no better than in other countries. It is regrettable that Canada has never provided its own
health statistics on certified deaths from mesothelioma, in spite of the repeated requests made during
the WTO consultations in Geneva on 8 July 1998.  Unlike most other industrial countries, which are
                                                     
75 See for example: McDonald, J.C., McDonald, A.D., Epidemiology of Mesothelioma . In: Liddell,
D.K., Miller. K., eds. Mineral Fibers and Health. Boca Raton FL: CRC Press, 1991:143-164. See also the
INSERM report, Chapter 8 (pp.154-190), which analyses in detail how the frequency of mesotheliomas hasevolved internationally.  INSERM report, pp.172-180.
76 INSERM report, pp.172-180.
77 Peto, Decarli, La Vecchia et al, The European Mesothelioma Epidemic , British Journal of Cancer,
1999, 79 (3/4): 666-672.
78 See paragraph 3.222 below.
79 Source:  Programme National de Surveillance du Mésothéliome, Rapport d'activité 1998 .
Saint-Maurice, Réseau National de Santé Publique, February 1999.
80 Gilg Soit Ilg, A., Bignon, J., Valleron, A-J ., Estimation of the Past and Future Burden of Mortality
from Mesothelioma in France . Occupational Environmental Medicine, 1998; 55:760-765.
81 The EC note that Canada seems to believe that this figure is not correct, because it assumes that
5.7 per cent of cases of lung cancer are attributable to asbestos, a figure which comes from a single study carriedout in Scotland (and which Canada considers too high, though it does not propose a different value based on theresults of scientific studies).  This criticism is not ju stified. The EC point out that, on page 10 of the INSERM
report, there is a table summarizing the proportions of lung cancers attributable to asbestos in all the studieswhich provided an estimate: it shows that in certain studies this fraction is clearly higher than the 5.7 per cent
given, and may considerably exceed 10 per cent.  In the part of the report which explains the method of
calculating the number of cases of lung cancer (page 180), the higher percentage (7 per cent) observed 10 yearsearlier in Great Britain has not been used since it was believed that this proportion must have declined.According to the EC, it is therefore clear that the INSERM report consistently uses relatively low estimates ofthe effects of asbestos on cancer mortality in France.WT/DS135/R
Page 34
concerned about the deleterious effects of asbestos on the health of their population, Canada has
never, as far as the EC are aware, published any data on the incidence of mesothelioma over a long
period among its own population, although such data are available.  The table below thus had to be
reconstituted by French experts from the raw world data published regularly by the IARC.82
ANNUAL INCIDENCE OF MESOTHELIOMA IN CANADA AND QUEBEC
NUMBER OF CASES ANNUALLY PER MILLION PEOPLE
1978-92
PERIOD Canada Quebec
   M                F    M                 F
1978-82     6                 2     9                  4
1983-87     9                 2    11                 3
1988-92    11                2    15                 3
This table shows that in Canada, each year between 1978 and 1982, six men per million were affected
by mesothelioma. Ten years later, more than 11 men per million per year were affected, in other
words, the figure doubled in less than 15 years, which is a particularly high rate of growth.  According
to the EC, the situation in Quebec, the province which produces Canada's asbestos, is even worse: the
increase in the number of cases was of the same order, but the rates are consistently higher than in
Canada as a whole (about 35 to 50 per cent higher, depending on the period).  The fact that the ratesfor women have remained more or less stable (though markedly higher in Quebec) shows indisputably
that the cause of these mesotheliomas is essentially work-related.  Furthermore, the fact that the
increase in the frequency of mesothelioma-type cancers can be seen throughout Canada, according to
the EC, shows that the risk of death from chrysotile  is not confined to the asbestos mining industry
(which exists only in the province of Quebec), but that it affects all sectors of the economy. The ECalso emphasize that Canada, which produces only chrysotile asbestos, has mainly used this type of
asbestos.
3.74 The EC note that the number of mesotheliomas, and hence the number of asbestos-related
cancers, correlates with the amount of asbestos imported.  The more asbestos that is imported into acountry, the more deaths there are from cancer caused by asbestos.  Analysis of the data for ten
Western countries
83 shows a very clear and strong correlation between cases of mesothelioma and
consumption of asbestos per inhabitant, measured  by the amount of imports. A study was conducted
where the rates of cancer in the ten countries were compared with the total amount of asbestos
imported per inhabitant (the study analyses the statistical correlation between these two values).  Thiscorrelation is extremely strong (the very revealin g correlation coefficient is 0.70).  According to the
EC, the number of cases of cancer thus increases proportionally with the increase of imports of
asbestos into each country.  It is important at this stage to bear in mind that about 95 per cent of all the
asbestos used in the world is chrysotile.
3.75 The EC stress that chrysotile is a known ca rcinogen causing lung cancer and mesothelioma.
The fact that chrysotile is carcinogenic has long been internationally recognized.  Since 1977, theIARC has classified both chrysotile and amphiboles as carcinogens endangering human health
(i.e. category I).
84 The IARC has recognized that chrysotile causes lung cancer and mesothelioma.
Very recently - in 1998 - following an assessment conducted under the International Programme on
Chemical Safety, the WHO reaffirmed that chrysotile asbestos "has been associated with an increased
                                                     
82  Source: Cancer in Five Continents , International Agency for Cancer Research, 1987/1992/1997.
83 Takahashi, K., Huuskonen, M., Tossavainen, M., Higashi, T., Okubo, T., Rantanen, J., Ecological
Relationship between Mesothelioma Incidence/Mortality and Asbestos C onsumption in Ten Western Countries
and Japan , Journal of Occupational Health 1999, 41: 8-11.
84 IARC Monograph on the Evaluation of Carcinogenic Risk of Chemicals to Man – Asbestos, 1977,
Lyon, Vol.14.WT/DS135/R
Page 35
risk of pneumoconiosis, lung cancer and mesothelioma in numerous epidemiological studies of
exposed workers"85. The WHO thus confirms the conclusions reached by the 1996 INSERM report.86
Still more recently, INSERM's conclusions were again confirmed by the United Kingdom's Healthand Safety Commission (HSC)
87, which considers all forms of asbestos dangerous as they can all
cause mesothelioma, lung cancer and asbestosis. The EC note that Canada never cites these WHO andHSC reports, but on the other hand it does cite the recent publication by Camus et al
88 on cancer
mortality among women living in the vicinity of Quebec's chrysotile asbestos mines. This study does
not reveal any risk of lung cancer among these wo men. Canada fails to mention, however, that other
studies, carried out among workers in the Quebec chrysotile mines, had already shown that the dose
observed, as compared with the effect noted, was the lowest of all the estimates published in the
international scientific literature on the risk of lung cancer.  The number of cancers observed among
workers in the Quebec asbestos mines is in fact much smaller than that found in all other situationslinked to asbestos.  This was pointed out in the INSERM report.
89
3.76 The EC point out that the 1998 WHO report also explicitly noted that:  "The exposure-
response relationship between chrysotile and lung cancer risks appears to be 10-30 times higher in
studies of textile workers than in studies of workers in mining and milling industries." It should benoted that these risks were observed in an American textile factory which had imported chrysotile
asbestos from the Quebec mines.  According to the EC, there is an international consensus that there
is no threshold of harmlessness for chrysotile.  It is important to make the distinction between setting
exposure ceilings and the existence of a threshold of harmlessness beneath with there would be no
health risk. These are two different problems which do not have the same rationale.  The exposureceilings are set by the authorities, taking various factors into account, such as the technical possibility
of obtaining sufficiently low levels of exposure in the environment or the technical means of
measuring the actual levels in the air for control purposes. The concept of the threshold of
harmlessness is a biological and medical one: the aim is to establish whether biological effects are
caused by chrysotile below a given level of exposure.  There is thus no contradiction between the factthat it is scientifically accepted that there is no biological threshold of harmlessness and the fact that,
nonetheless, an exposure limit is set at a certain level that can be achieved and easily measured for
control purposes.  The 1998 WHO report carried out under the International Programme on Chemical
Safety states that, for chrysotile:  "No threshold has been identified for  carcinogenic risks".
90 This
international authority thus confirms the conclusions of the INSERM report on this point.91
3.77 The EC point out that most malignant tumours have their origin in the transformation of asingle cell, and a very low dose of a carcinogen is quite capable of inducing a transformational
mutation in the genetic make-up of a cell. In epidemiology and the biological sciences it is now
agreed that the most plausible model for carcinogen icity is one with no threshold value.  According to
the EC, the results of the most recent studies confirm this fact, while virtually all the references cited
by Canada are from the 1980s. Thus, the French study by Iwatsubo et al.
92 shows that asbestos has
                                                     
85 IPCS, Environmental Health Criteria (203) on Chrysotile , World Health Organization, 1998,
Geneva, point 1.6 ("Effects on Humans").
86 INSERM report, pp.259-266.
87 Health and Safety Commission, United Kingdom, (1999), Proposals for Amendments to the Asbestos
(Prohibitions)  Regulations 1992 .
88 Camus, M. et al., Non-Occupational Exposure to Chry sotile Asbestos and the Risk of Lung Cancer ,
New England Journal of Medicine, 1998, 338 (22):1566-71.
89 INSERM report, pp.193-202, particularly Table 2, p.196 and figures 1 and 2, pp.198 and 199.
90 IPCS, Environmental Health Criteria (203) on Chrysotile , World Health Organization, 1998,
Geneva, p.144.
91 See Chapter 9, pp.193-241 of the INSERM report.
92 Iwatsubo, Y. et al , Pleural Mesothelioma: Dose-Response Relation at Low Levels of Asbestos;
Exposure in a French Population – Based Case – Control Study , American Journal of Epidemiology, 1998, 148:
133-142.WT/DS135/R
Page 36
carcinogenic effects at levels well below those specified in earlier publications.  Other recent studies
analysed in the INSERM report show similar results (see pages 122 and 123 of the report).
3.78 In the EC's view, the model which considers that  the risk of cancer is directly proportional to
the dose of asbestos inhaled is that which is usually adopted. The model of simple proportionalitybetween the dose of asbestos and the risk of cancer is that which is generally accepted nowadays.  In
the case of exposure to asbestos, such a model, which sees the risk of cancer as directly proportional
to the dose of asbestos inhaled, fits very satisfactorily with direct epidemiological observations of
high exposure (above 1 fibre/ml). As applied to low doses, this model is generally considered to be
the most scientifically plausible.  The EC point out that this model, which is strongly criticized by
Canada, is that used by all the official committees of experts to date; it is also used in the HEI (Health
Effects Institute) report so comprehensively cited by Canada.
93  It was also used to calculate the
lifetime risks presented by Canada to show how insignificant the risks were at very low levels of
exposure.94  The EC stress that the values cited by Canada (0.0002 fibres/ml) in no way correspond to
the cases covered by the French Decree challenged by Canada. Such excessively low values are found
in the ambient air of towns and buildings: at this infinitesimal level, the risk is clearly undetectable, as
the INSERM report states in several places (pages 145 and 146, and 224-230). The ban on asbestos, inFrance and in other countries, is not intended to eliminate the approximately 0.0002 fibres/ml which
exist "naturally" in the air. The ban is intended simply to protect all the workers and users of asbestos
who are often exposed to much higher values, which may reach tens of fibres per millilitre
(i.e. several thousand times more) in the case of standard procedures for dealing with materials
containing asbestos-cement.
95  Chrysotile represents the vast majority of the asbestos used throughout
the world.  About 95 per cent of all the asbestos used since the end of the Second World War has been
of the chrysotile variety and more than 80 per cent of this chrysotile is incorporated into asbestos-
cement products.  This explains, in particular, the very high incidence of mesothelioma among
building workers.  It is therefore quite indisputable, in the EC's view, that it is indeed the chrysotile
variety of asbestos which causes the vast majority of asbestos-related cancers. This has also beenshown in recent publications.
96
3.79 The EC point out that chrysotile and asbestos-cement pose a threat to an extremely large
section of the population.  Production workers are not the only section of the population affected.  The
EC note that, when discussing exposure to asbestos, Canada refers only to workers in the production
and processing of asbestos ("primary users"). However, such workers are relatively few in number
compared with the huge group of "secondary users".  It is because these secondary users are verynumerous and run significant risks that there is a very rapid rise worldwide in the mortality rates for
cancers caused by asbestos. As the British Health and Safety Commission (HSC) points out, the risks
for secondary users of asbestos have, in the past, been underestimated.
97
3.80 The EC note that the occupations and branches of industry affected have changed anddiversified.  Several studies show the scale of exposure to asbestos in all countries. They also show
the huge variety of occupations and sectors that are affected.  In the 1960s, the main occupations
affected were those in the insulation industry, in the production and processing of asbestos, in the
central heating industry and in the shipyards.  In the 1980s and 1990s, in contrast, the highest
                                                     
93 See, for example, paragraph 3.124 below.
94 See, for example, paragraph 3.53 above.
95 Blotière, C. and Huré, P., Travaux sur des matériaux contenant de l'amiante – données
métrologiques , Chimie Info No. 60-11/1998.
96 See for example: Stayner, L.T. et al., Occupational Exposure to Chrysotile Asbestos and Cancer
Risk: A Review of the Amphibole Hypothesis . American Journal of Public Health. 1996, 86:179-186 and Smith
Attand Wright, C.C., Chrysotile Asbestos, the Main Cause of Pleural Mesothelioma,  American Journal of
Industrial Medicine, 1996, 30: 252-266.
97 Proposals for Amendments to the Asbest os (Prohibitions) Regulations 1992, Health and Safety
Commission, United Kingdom, (1999).WT/DS135/R
Page 37
incidence was found among those whose work involved materials containing asbestos.  It was only in
the 1990s that studies were published on mortality by type of occupational exposure to asbestos,
raising awareness of the large-scale health problem which such exposure posed for many categories of
worker.  In Great Britain, the study published by Peto et al98 in 1995 dealt with mesothelioma
mortality in England and Wales for the years 1979-1980 and 1985-1990.  The table below (taken fromthis study) shows the principal occupations in which deaths from mesothelioma have been observed;
the percentages represent the distribution by occupation of all the deaths from mesothelioma that have
occurred in England and Wales. It shows the variety and the relative importance of the various
occupations exposed to asbestos to a significant degree.  The types of work are classified in
descending order of frequency of death from mesothelioma. The occupations shown in this table
account for some 50 per cent of all the deaths from mesothelioma which occurred during the period
studied.
D
ISTRIBUTION OF DEATHS FROM MESOTHELIOMA BY OCCUPATION99
Occupation %
Fitter 6.8
Carpenter 5.7
Plumber 4.5
Construction - non specific 4.2
Machine operator 4.0
Electrician 3.6
Sheet metal worker/boiler-maker 2.5
Engineer - non specific 2.3
Buildings maintenance 2.2
Painter and decorator 2.2
Welder 1.6
Docker 1.5
Metal sprayer 1.1
Boiler operator 0.9
Building foreman 0.9
Electrical engineer 0.9
Industrial coach-builder 0.8
Plasterer 0.6
Industrial designer 0.6
Technician - non specific 0.5
Laboratory technician 0.5
Upholsterer 0.4
Electric power station worker 0.4
Chemical engineer 0.4
3.81 The EC point out that the figures in the table are not estimates but death rates which have
actually been recorded. The occupations at high risk of mesothelioma include welders, dockers,
laboratory technicians, painters and decorators, plasterers, fitters, upholsterers, power station workers,
etc.  Thus, the building sector alone accounts for a quarter of all the deaths from mesothelioma which
have occurred in England and Wales, a proportion considered by Peto et al . probably to be
underestimated. When the numbers of deaths from mesothelioma are compared to the number ofpeople who work in each occupation, it can be seen that the jobs which are proportionally most
affected are sheet metal workers/boiler-makers (including workers in shipyards) and industrial coach-
builders. They are followed by plumbers, carpenters and electricians.  In France, a recent study
showed that, depending on the generation, between 18 and 25 per cent of French men, i.e. millions of
people, have been exposed to asbestos at least once in the course of their working life.
100  Another
                                                     
98 Peto, J. et al., Continuing Increase in Mesothelioma Mortality in Britain . Lancet 1995;  345:535-539.
99 Id.
100 Goldberg, M. et al., Past Occupational Exposure to Asbestos among Men in France. Scandinavian
Journal of Work and Environmental Health, 1999 (in press).WT/DS135/R
Page 38
French study (currently under way), conducted in six départements  with a sample of men who had
retired between 1994 and 1996, shows the extreme variety of job periods which entailed exposure to
asbestos.  The EC emphasize that many sectors are exposed to asbestos, and that they are not the
traditional industries of asbestos mining and processing. Thus, 45 per cent of building and public
works occupations are exposed to asbestos. More than 40 per cent of industrial production jobsinvolve exposure to asbestos, metallurgy and the machines and tools sector being particularly
affected.
3.82 The EC state that the study carried out by Y. Iwatsubo
101 on the French population confirms
these data. This is one of the most important worldwide studies analysing the relationship between
exposure to asbestos and the risk of mesothelioma;  it covers the entire population of the country
concerned. Although it had not been published at the time, this study was the subject of an analysis inthe INSERM report (see pages 121 and 122).  According to the EC, the very large scale of the study
showed that there is a clear risk of cancer at levels of exposure that are lower than those previously
recognized.  This study shows that the vast majority of cases of cancer occur in workers who are
"secondary users". Great numbers of people are often employed in the areas in question, which
explains the large number of cases of mesothelioma which occur.  The study shows, for example, thatexposure to asbestos took place in 54 per cent of job periods in the construction sector.
3.83 The EC consider that the principal data which have been presented illustrate the ubiquity of
asbestos in the workplace which can, at sufficiently high levels of exposure, lead to numerous cases of
fatal disease. As a rule, the very many categories of workers affected handle materials containingasbestos sporadically, particularly asbestos-cement in building and public works occupations.  These
workers are often unaware of the risk they run. In  fact, as Canada rightly and insistently notes,
asbestos is undetectable when mixed with other materials, particularly cement. It is therefore not
possible for the innumerable workers in all these sectors to be systematically informed of the risks
they are taking when working with these materials.  It is for this reason, above all, that there are also
considerable risks to the general population such as do-it-yourself enthusiasts, who may often use
products containing asbestos and may be exposed to  significant quantities of asbestos dust when
cutting, sanding, sawing and doing repairs of all kinds.  It is therefore not entirely true, as Canada
maintains, that there is no danger to the public from asbestos. According to the EC, Canada
controversially finds that there is little difference between the undetectable risk associated with the
levels of exposure in the ambient air - measured by the rate of asbestos fibres within a town or in the
vicinity of a building - and the risks associated with the occasional, but sometimes high, levels ofexposure which a very large section of a country's population may face.
102  Far from affecting only
those working in asbestos production (mining and processing), the danger linked to inhaling asbestos
at much higher levels than those cited by Canada is now particularly serious for users of products
containing asbestos, whether they use such products in an occupational (textile workers, building
workers etc.), para-occupational and/or domestic (do-it-yourself) context. In France, several hundredthousand or even millions of daily users of asbestos are therefore affected; they are never mentioned
in Canada's submission.
3.84 Canada  responds that, even if the EC refuse to recognize this fact, there are significant
physical and chemical differences between chrysotile and amphibole asbestos, distinctions which arereflected in the pathogenic potential of the two types of asbestos.  These distinctions are crucial in this
case since the current problem of asbestos in France is due essentially to past uses and to the use of
amphibole fibres.  According to Canada, the distinction between chrysotile and amphibole asbestos is
                                                     
101 Iwatsubo, Y. et al , Pleural Mesothelioma: Dose-Response Relation at Low L evels of Asbestos
Exposure in a French Population-Based Case-Control Study . American Journal of Epidemiology , 1998;
148:133-142.
102 The EC emphasize that the INSERM report, so disparaged by Canada, also stressed the
undetectability of the risks associated with very low ex posures which are found in the ambient air of towns and
buildings (see pp. 145 and 146, and 224-230).WT/DS135/R
Page 39
also important by virtue of the fact that the extrapolations performed by INSERM to assess the risks
associated with chrysotile asbestos are based on exposure to amphibole fibres, in proportions of up to
100 per cent and in circumstances which have nothing to do with the current uses of chrysotile
asbestos.103  Today, 97 per cent of chrysotile fibres are used in high-density and non-friable materials.
Construction materials and pipes based on asbestos-cement account for nearly 90 per cent of theinternational market.  Friction products, for their part, account for approximately 7 per cent of the
market, with the remaining 3 per cent consisting of various products such as seals, textiles and
membranes.  The debate must therefore focus on the current uses of chrysotile, i.e. essentially
chrysotile-cement.
3.85 In simple terms, according to Canada, three characteristics of fibrous materials are currently
recognized as being significant parameters which determine biological activity:  "durability" (orbiopersistence), "dimension,"
104 and "dose."105  In Canada's view, these characteristics are all relevant
in the assessment of the health risk, as WHO, INSERM and the EC recognize.106  It is important to
highlight the lower biopersistence and pathogenicity of  chrysotile fibres compared to amphibole fibres
in order to demonstrate that the current health problems linked to asbestos are largely due to exposure
to amphiboles.  Canada emphasizes that the ban on current uses of chrysotile is not the solution to thehealth problems that France is experiencing today.  The use of modern research techniques, in
particular the mineral analysis of pulmonary tissues, sometimes called lung burden study, has made it
possible to identify the "durability" factor as bein g a key parameter in the study of the pathogenicity
of inhaled particles.  This characteristic, which varies significantly from one particle to another and is
probably linked to the chemical composition and crystalline configuration of the particles, willdetermine the extent of a basic biological phenomenon:  biopersistence, i.e. the period during which
the inhaled particles persist in the lungs and exert a harmful effect on the surrounding tissues before
being eventually dissolved or eliminated.
3.86 Canada states that the recent studies which use both the fibre mass and the number of fibres as
dose units confirm that amphiboles are more pathogenic than chrysotile.
107  The WHO declares that
the use of gravimetric data "may be misleading when comparing samples of chrysotile and amphibole
asbestos, because the former may contain more than ten times more fibres per unit weight".108  Thus,
the studies demonstrating that there is no distinction between chrysotile and amphiboles on a
gravimetric basis mean in fact, according to the WHO, that amphiboles are more than ten times more
dangerous than chrysotile, fibre per fibre. This is confirmed by INSERM, which reveals that the risk
of mesothelioma is in fact ten times gr eater for amphiboles than for chrysotile.109  Several studies
                                                     
103 See in particular INSERM report, p. 213.
104 According to Canada, the pathogenicity of asbestos fibres varies depending on their dimensions.
Hazardous fibres are defined as those having a length of more than 5 microns, a diameter of less than 3 microns
and a length-diameter ratio of more than 3:1. See in particular IPCS Environmental Health Criteria (203) on
Chrysotile , WHO, 1998, p. 14 . The longest and finest fibres pose the greatest health risk.
105 According to Canada, the lack of epidemiological data demonstrating the risks associated with low-
dose exposures makes it possible to state that the exposure levels associated with the current uses of asbestos donot pose any detectable health risk. See in particular IPCS Environmental Health Criteria 203 on Chrysotile ,
WHO, 1998, p. 144.
106 Id., p. 51;  INSERM report, p. 90 et seq.   See also para. 3.188 below.
107 See IPCS Environmental Health Criteria (203) on Chrysotile , WHO, Geneva, 1998, pp. 69 and 81;
INSERM report, Table 2, p. 196;  EPA, Integrated Risk Information System, Asbestos , Document No. CASRN
1332-21-4 on-line: EPA, <http://www.epa.gov/ngispgm3/iris/subst/0371.htm> (access date: 10 June 1999).Canada points out that, in the large majority of the experimental protocols, the comparisons of the effects werestill based on gravimetric data; i.e. the effects were produced by an equivalent mineral mass.  In fact,
retrospective attempts aimed at converting gravimetric doses  into doses of numbers of fibres have indicated that,
if based on the number of fibres, pathogenicity studies would show that, fibre for fibre, chrysotile fibres are lesspathogenic than the other types of asbestos fibres, indeed even less than certain synthetic fibres.
108 IPCS Environmental Health Criteria (203) on Chrysotile , WHO, Geneva, 1998, p. 69.
109 INSERM report, Table 2, p. 196.WT/DS135/R
Page 40
published in the early 1980s were conducted on samp les of pulmonary tissues from workers whose
deaths were thought to be linked to exposure to asbestos, compared to control subjects who had been
exposed to various levels of urban pollution.  The results showed that the quantities of amphiboles
present in the pulmonary tissue of the experimental subjects were one hundred times higher than those
found in the control subjects, but that the quantities of chrysotile were similar.110  Thus, the workers
died from exposure to amphiboles, not to chrysotile.
3.87 Canada states that, according to the WHO and studies reviewed by it, the biopersistence of
chrysotile is lower than that of amphiboles:
"The fractional deposition of chrysotile was lower th an for amosite and crocidolite [...] The alveolar
clearance of chrysotile was faster than that of croci dolite.  [...] The retention of chrysotile, as measured
a few days after the end of the 6-week exposure period, was only about one third that of amphiboles.
[...] This difference in the lung clearance of chry sotile and amphibole fibres has been confirmed by
several studies."111
3.88 Canada emphasizes that the half-life of amphibole fibres, although difficult to estimate,
appears to be in the order of decades, while that of chrysotile fibres may be only a few months.112  The
research of Dr. Bernstein, on the basis of the Interim Protocol for the Inhalation Biopersistence of
Mineral Fibres  of the EC, confirms, in a 19 98 study, the higher biopersistence of amphiboles
compared to chrysotile.  Chrysotile alone, accord ing to Dr. Bernstein, "would have little if any
toxicological effect."113 Even INSERM recognizes "[Tr.] the difference in carcinogenicity between the
two types of fibres for mesothelioma." Accordin g to INSERM:  "[Tr.] experimental studies have
shown that the biopersistence of chrysotile fibres was lower than that of amphiboles."114  The IARC is
of the opinion that the type of fibre must be duly taken into account in assessing the risks of lung
cancer.115  The IARC also recognizes that:  "[I]n manufacturing and application industries
mesotheliomas have been caused by exposure to crocidolite, and less frequently to amosite and
chrysotile."116  Finally, the IARC adds that when fibres are identified in the lungs, amphibole fibres
are predominant.117
3.89 Canada also recalls that Drs. Kumar, Cotran and Robbins state, in their authoritative medical
textbook on pathology:
                                                     
110 See in particular Wagner, J.C. et al.  Correlation Between Fibre Content of the Lung and Disease in
East London Asbestos Factory Workers  (1988) 45 British Journal of Industrial Medicine 305, according to
which:  "[W]e believe therefore that chrysotile is the least harmful form of asbestos in every respect and that
more emphasis should be laid on the different biological effects of amphiboles and serpentine asbestos fibre."
111 IPCS Environmental Health Criteria (203) on Chrysotile , WHO, Geneva, 1998, p. 60, citing Albin
et al. , Retention Patterns of Asbestos Fibres in Lung Tissue Among Asbestos Cement Workers  (1994) 51 Journal
of Occupational Environmental Medicine 205:  "The present data indicate that chrysotile has a relatively rapidturnover in human lungs, whereas amphibole, tremolite and crocidolite, have a slower turnover."
112 Mossman, B.T. and Churg, A., Mechanisms in the Pathogenesi s of Asbestosis and Silicosis  (1998)
157 American Journal of Respiratory and Critical Care Medi cine 1666, p. 1669.  The authors also state:  "Both
animal and human studies show that continuing exposure to amphiboles results in continuously increasingamphibole fiber levels recoverable from the lung, whereas continuing exposure to chrysotile is associated with anegligible increase in chrysotile fiber burden over time." ( Id., p.  1669).
113 Bernstein, D., Summary of the Final Reports on the Chrysotile Biopersistence Study , Geneva, 1998.
114 INSERM report, pp. 395-96.
115 IARC, Vol. 2, p. 17, para. 5.2, available on-line: IARC
http://193.51.164.11/htdocs/monographs/Vol02/ Asbestos.html> (access date: 10 June 1999).
116 Id.
117 IARC, Asbestos (Suppl. 7), Part A available on-line:  IARC
<http://193.51.164.11/htdocs/monographs/Suppl7/ Asbestos.html> (access date: June 10, 1999).WT/DS135/R
Page 41
"The basis for the carcinogenicity of asbestos is still a mystery.  Clearly, the physical form of the
asbestos is critical; very nearly all cases are related to exposure to amphibole asbestos, which has long,straight fibers, and not to serpentine chrysotile."
118
3.90 For his part, Prof. Sir Richard Doll states that:
"First, there is the difference between the effects of chrysotile and amphiboles which is so great in
relation to mesothelioma that it is possible to argue that chrysotile does not cause mesothelioma at
all."119
3.91 Canada emphasizes that the French Académie nationale de médecine  stated, in 1996, that
amphibole fibres are "[Tr.] currently considered the most dangerous" and that chrysotile fibres are
"[Tr.] considered to pose little danger because of their spontaneous degradation in the human
organism.  [...] Chrysotile asbestos is a form of asbestos which has not caused mesotheliomas, except
in cases of massive and prolonged exposure.  This is apparently explained by its solubility in the
organism."120  Canada recalls that, in 1997, the French Ministry of Labour, through the report of the
Groupe scientifique pour la surveillance des atmosphères de travail  (Workplace air quality scientific
monitoring group) (G2SAT), cited by the EC, was of  the opinion that chrysotile, once in an acidic
medium –  the lungs for example – ceases to exhibit "virtually any carcinogenic activity":
"[Tr.] It has been demonstrated that chrysotile is much more easily eliminated from the human lung
than the other forms.  Moreover, it ceases to ex hibit virtually any carcinogenic activity (by intra-
cavitary injection) after acid attack, which dissolves most of the magnesium."121
3.92 Canada points out that chrysotile fibres are "curly" and downy whereas amphibole fibres are
straight and rigid like needles.122  A 1998 WHO study notes that "[I]nhalation of respirable straight
fibres [amphiboles] is reported to be associated with greater penetration to the terminal bronchioles
than in the case of 'curly' fibres [chrysotile]."123  Once they have entered the respiratory tract,
chrysotile asbestos fibres, because of their  curly shape, are more easily cleared by the mucociliary
process than straight and rigid amphibole fibres.124  Canada observes that, for chrysotile fibres which
nonetheless manage to become lodged in the lungs, the macrophages are able to deal more easily with
chrysotile fibres than amphibole fibres.  In addition, amphibole fibres are much more resistant than
chrysotile fibres in an acidic medium such as the lungs; they will therefore remain there longer than
chrysotile fibres.  According to the WHO, the lower biopersistence of chrysotile compared to
amphiboles may be due in part to the fact that chry sotile fibres dissolve in an acidic medium such as
the lungs, while amphibole fibres resist dissolution in this medium.125
                                                     
118 Kumar, V., Cotran, R. and Robbins, S., Basic Pathology , 6th Ed., London, Saunders Co., 1997,
p. 435).
119 Doll, R., Mineral Fibres in the Non-Occupational Environment: Concluding Remarks,  in Bignon, J.,
Peto, J. and Saracci R., dir., Non-Occupational Exposure to Mineral Fibres , IARC scientific publication No. 90,
1989,  pp. 511-518.
120 See Académie nationale de médecine (Etienne Fournier), Amiante et protection de la population
exposée à l'inhalation d'amiante dans les bâtiments publics et privés , Bulletin de l'Académie nationale de
médecine,  Vol. 180, no. 4, April 1996, p. 2.
121 See INRS, Rapport du Groupe scientifique pour la su rveillance des atmosphères de travail"
(G2SAT) , 1997.
122 IPCS Environmental Health Criteria (203) on Chrysotile , WHO, Geneva, 1998, p. 11.
123 Id..
124 Kumar, V., Cotran, R. and Robbins, S., Basic Pathology , 6th Ed., London, Saunders Co., 1997,
p. 228.
125 IPCS Environmental Health Criteria (203) on Chrysotile , WHO, Geneva, 1998, p. 4. See also
Kumar, V., Cotran, R. and Robbins, S., Basic Pathology , 6th Ed., London, Saunders Co., 1997, p. 227;
INSERM report, p. 396.WT/DS135/R
Page 42
3.93 Canada states that it is a basic principle in toxicology that the health risks posed by a toxic
agent are directly proportional to the duration of the contacts with the target organs.  Thus, since
chrysotile is less biopersistent than amphiboles, it lo gically follows that chrysotile is less pathogenic.
In a study by Coffin et al. cited by the WHO in 1998:
"Large differences in the incidence of mesothelioma in intratracheal injection studies were
demonstrated [...] crocidolite [was] 30-60 times mo re tumorigenic than chrysotile on fibre number
basis."126
3.94 Canada points out that, contrary to what the EC and the United States claim, the United States
EPA states that studies demonstrate a difference in carcinogenicity between the types of asbestos
fibres.127 The medical textbooks on pathology also indicate a clear distinction between amphiboles and
chrysotile:
"It is important to make the distinction between various forms of amphiboles and serpentines, because
amphiboles, even though less prevalent, are more pathogenic than the serpentine chrysotile, particularlywith respect to induction of malignant pleural tumors (mesotheliomas).  Indeed, some studies have
shown the link is almost invariably to amphibole exposure."128
This comes back to one of Canada's main criticisms of the INSERM report, i.e. that the extrapolations
performed by INSERM are based on data on expos ure to amphiboles or to mixtures of fibres
containing amphiboles.129  The danger of amphiboles cannot and must not be used to justify a ban on
chrysotile, in light of the fundamental differences between the two types of fibres.
3.95 Canada asserts that convincing evidence of this distinction between the risk posed by
chrysotile and the risk posed by amphiboles is the fact that the asbestos regulations in several
industrialized countries make a clear distinction between the two types.  Because of the greater risk
involved, the regulations impose stricter exposure limits in the case of amphiboles than in the case of
chrysotile.  The following table indicates, for the sa ke of example, certain regulatory distinctions.
REGULATORY EXPOSURE LIMITS IN 1998130
Country Amphiboles Chrysotile
France (in 1994) 0.3 f/ml 0.6 f/ml
European Communities 0.3 f/ml 0.6 f/ml
Canada 0.2 f/ml (crocidolite)
0.5 f/ml (amosite)1 f/ml
Spain 0.2 f/ml (amosite) 0.6 f/ml
Japan 0.5 f/ml 1 f/ml
United Kingdom 0.2 f/ml 0.5 f/ml
                                                     
126 IPCS Environmental Health Criteria (203) on Chrysotile , WHO, Geneva, 1998, p. 81.
127 EPA, Integrated Risk Information System, Asbestos , Document No. CASRN 1332-21-4, available
on-line: EPA, <http://www.epa.gov/ngispgm3/iris/subst/0371.htm> (access date: 10 June 1999).
128 See Kumar, V., Cotran, R. and Robbins, S., Basic Pathology , 6th Ed., London, Saunders Co., 1997,
pp. 227 and 228.
129 See paras. 3.222 and 3.223 below. Canada draws attention to the statement by the WHO in 1998 that
the use of this type of data:  "contributes less to our understanding of the effects of chrysotile, due to
concomitant exposure to amphiboles."   IPCS Environmental Health Criteria (203) on Chrysotile , WHO,
Geneva, 1998, p. 107.
130 Canada notes that, in the case of bans on asbestos, the regulatory limits apply to asbestos already in
place.WT/DS135/R
Page 43
3.96 Canada notes that amphiboles have been banned in France since 1994, while chrysotile
continued to be used there until 1997.  Amphiboles have also been banned in the United Kingdom
since 1992.  Convention 162 and Recommendation 172 of the ILO both call for a ban on crocidolite,
which they do not however impose for chrysotile.131  A WHO Committee which met in Oxford in
1989 also made the same distinction in its recommendations: "For crocidolite and amosite asbestos,on the basis of health, it is recommended that their use be prohibited as soon as possible."
132  In the
case of chrysotile, far from suggesting a ban, it suggests an exposure limit of 1 f/ml.  The regulatory
distinction recognizing the difference in pathogenicity is also found in the disputed Decree, which, for
instance, makes an explicit distinction between amphiboles and chrysotile, permitting exceptions only
for chrysotile and not for amphiboles.  Canada points out that it has demonstrated that the pathogenic
potential of amphiboles is much higher than that of chrysotile.  Consequently, INSERM is taking the
wrong approach by using exposure to amphiboles to determine the risks associated with chrysotile.  Itis the high pathogenicity of amphiboles – used more extensively in France than the EC would have
one believe –  which, with the use of friable materials, is the cause of the health problems observed
today in the French population.  Canada considers that serious questions must be raised as to the
reasons which prompt the EC to ignore – indeed even to deny in the way they treat the available
scientific data – the existence of all this evidence which establishes, beyond the shadow of a doubt,the significant difference in pathogenicity between chrysotile and amphiboles.  Indeed, the latter are
the basic cause of the French problem, while the former has no health effects when used in a context
of controlled use.
3.97 Canada points out that the EC claim that there is no safe threshold of exposure to asbestos,
whether of the amphibole or chrysotile variety.
133  INSERM came to a different conclusion, at least
with respect to asbestosis:
"[Tr.] Most of the epidemiological data gathered in exposed occupational populations suggest that
clinically and/or radiologically confirmed asbestosis appears only following sufficiently high exposures
[…]."134
3.98 Canada recalls that the EC have adopted the position that human experience has not
demonstrated the existence of a threshold of exposure in the case of lung cancer or mesothelioma
below which exposure to asbestos dust poses no health hazard.  On the contrary, human experience,via the epidemiological data, supports the idea of a threshold. According to Canada, it is wrong to
claim that there is an "[Tr.] international consensu s that there is no safety threshold for chrysotile."
135
An EC study cited by WHO suggests the existence of a threshold:
"It is very likely that there is a practical level of exposure below which it will be impossible to detect
any excess mortality or morbidity due to asbestos.  [...] Thus, it is possible that there is a level of
exposure (perhaps already achieved in the general public) where the risk is negligibly small."136  
3.99 According to Canada, this appears also to be th e position of the EC when they state that their
main data "[Tr.] illustrate the ubiquitous nature of asbestos in the workplace which can, at sufficiently
high exposure levels, cause numerous cases of fatal diseases."137  On the contrary, this statement
                                                     
131 International Labour Organization, Geneva, Convention concerning Safety in the Use of Asbestos
(Convention 162, adopted on 24 June 1986), Article 11, and Recommendation concerning Safety in the Use ofAsbestos (Recommendation 172, adopted on 24 June 1986), Article 18.
132 WHO, Occupational Exposure Limit for Asbestos , Report prepared by a Group of Experts meeting
in Oxford, April 1989.
133 See paras. 3.76 et seq  above.
134 INSERM report, p. 327.
135 See para.3.76 above.
136 IPCS Environmental Health Criteria 53 for Asbestos and Other Mineral Fibres , WHO, Geneva,
1986, p. 143.
137 See paragraph 3.83 above.WT/DS135/R
Page 44
presumes that no disease appears at low exposure levels to asbestos dust in the workplace.  The
existence of a threshold suggests the possibility of demonstrating that the effect does not manifest
itself at or under an identified dose.  However, the unequivocal scientific demonstration of a zero
effect is impossible, as DG XXIV acknowledges.138  
3.100 Canada asserts that, when the available epidemiological data are insufficient to make it
possible to determine the risks of cancer associated with low exposure to a toxic contaminant, a
methodology called "risk analysis" is used.  Quantitative risk analyses project the risks observed at
high exposure (experimental or occupational studies) to low exposure possibly associated with
unobservable low risks.  Such projections outside th e field of empirical observations must be based on
mathematical models.  Canada indicates that the linear model is one of the possible risk projection
models.  This model is simple to calculate mathematically and statistically.  It implies, however, thatthere is no exposure value, no matter how low, which is not associated with a certain level of risk, no
matter how low.  The uncertain choice of the best model has a major impact on the estimated risk.
139  
In the case of asbestos, the linear model is in fact used to extrapolate risks from workers heavily
exposed in the past to the exposures 100,000 times lower of the general population and asbestos
workers today.  In statistics, any extrapolation far from the region of observations (observable values,available studies) is speculative and very risky.
3.101 According to Canada, the EC assert that the li near model is the most plausible by using the
following fallacious argument:  "[Tr.] This hypothesis of the linearity of the risk based on the level of
exposure and the lack of a threshold are part of the currently accepted assumptions concerningcarcinogens; for instance, it is included in the ILO encyclopedia.  This hypothesis is therefore the
most plausible."  However, this does not mean that this is the most plausible model, but rather the
simplest and most "conservative" model in that it projects higher risks in the region of low doses than
the other mathematical models of carcinogenesis.  The risk assessment agencies emphasize this
distinction and this criterion.
140  The EC confuse the lack of an identified threshold with the lack of a
threshold.  For instance, the WHO report on chrysotile asbestos notes that:  "No threshold has been
identified for carcinogenic risks."141   For Canada, this means simply that a specific threshold cannot
be identified, if there is one.  At no place in the WHO report or in any other risk assessment is it
claimed that there is no threshold.  On the contrary, this possibility is mentioned by the Health Effects
Institute-Asbestos Review (HEI-AR).  According to this group of international experts, which
included experts in modelling of cancer risk such as J. Peto, D. G. Hoel and W. Nicholson, the linear
dose-response model is not adopted for its validity but rather because it tends to over-estimate theactual risk.  This model ignores the natural biological defence mechanisms against toxic invaders of
                                                     
138 Opinion on a Study Commissioned by Directorate General III (Industry) of the European
Commission on "Recent Assessments of the Hazards and Ri sks Posed by Asbestos and Substitute Fibres, and
Recent Regulation on Fibres World-Wide"  (Environmental Resources Management, Oxford) (opinion expressed
on 9 February 1998).
139 According to Canada, the linear model predicts risks 100,000 times higher than those predicted by a
"log-probit" model at doses 100,000 times lower than those for which risks have been observed. See Brown,C.C., Mantel, N., Models for Carcinogenic Risk Assessment , Science 1978; 202:1105.
140 Environmental Protection Agency, Guidelines for Carcinogen Risk Assessment . Fed Reg 1986;  51,
CFR 2984 (185/Sept.24):33,992-34,003.  Health and Welfare Canada. Carcinogen Assessment . Ottawa, Canada:
Dept. of Supply and Services Canada, 1991; 96.  Health and Welfare Canada. Carcinogen Assessment .  Ottawa,
Canada:  Dept. of Supply and Services Canada, 1992. National Research Council. Science and Judgment in Risk
Assessment. Student Edition. Washington, D.C.:  Taylor  and Francis, 1996. National Research Council. Risk
Assessment in the Federal Government: Managing the Process. Washington, D.C.: National Academy Press,1983.
141 IPCS Environmental Health Criteria (203) on Chrysotile,  WHO, Geneva, 1998, p. 144, under a).WT/DS135/R
Page 45
the body, which, as Canada has previously demonstrated, are very effective in the case of
chrysotile.142  With respect to the validity of the linear model in general, Prof. Doll wrote as follows:
"We have no real ground for postulating that a linear relationship for lung cancer can be extrapolated
back to the levels of dose with which we are concerned in non-occupational settings."143
3.102 Canada points out that, similarly, Ames and Gold wrote:  "linear extrapolation from the
maximum tolerated dose in rodents to low-level exposure in humans has led to grossly exaggerated
forecasts in mortality."144  E. Fournier and M.-L. Efthymiou are even more severe.  In their view
"linear extrapolation to zero is an unscientif ic methodology whose social consequences are so
immense that it warrants unconditional elimination."145  Canada indicates that, once a cell has been
altered carcinogenically, there are natural defence mechanisms of the organ or of the organism which
seek to destroy or eliminate the invaders.146  The conventional models of carcinogenesis do not take
this broader organic context into account.  The EC and INSERM appear to confuse dose and exposure
in their justification of the linear model.  This model is applied to the ambient exposures of  workers
and of the general population, while it is justified in carcinogenesis on the basis of the effective doseof the target tissues.  Not only is it implausible, according to Canada, that the dose-response
relationship should be linear at the cellular level (level of mathematical modelling of  carcinogenesis),
but this is even more implausible at the level of the exposure-effects relationship.  In fact, the
deposition and clearance of solid particles in the lungs may be non-linear  saturable processes,
147 in
                                                     
142 HEI-AR, Asbestos in Public and Commercial Buildings:   A Literature Review and Synthesis of
Current Knowledge (Executive Summary),  Health Effects Institute – Asbestos Research, Cambridge, 1991,
pp. 6-62.
143 Doll, R., Mineral Fibres in the Non-Occupational Environment: Concluding Remarks  in Bignon, J.,
Peto, J. and Saracci R., dir., Non-Occupational Exposure to Mineral Fibres,  IARC scientific publication No. 90,
1989, pp. 516-17.
144Ames, B.N. and Swirsky Gold, L ., Causes and Prevention of Cancer: Gaining Perspectives on the
Management of Risk,  in Risks, Costs, and Lives Saved: Gettin g Better Results From Regulation?, New York,
OUP, 1996, p. 6.
145 Fournier, E. and Efthymiou, M.-L ., Problems with Very Low Dose Risk Evaluation: the Case of
Asbestos in What Risk? , p. 49.
146 According to Canada, simulations with stochastic mathematical models predict that as soon as
"defenders" have an effectiveness greater than zero against "invaders", even a linear dose-response relationshipat the cellular level will be transformed into an infra-linear relationship at the broader level of the organ or of the
organism. See Holland, C.D., Sielken, R.L.J., Quantitative Cancer Modeling and Risk Assessment,  Englewood
Cliffs, New Jersey: Prentice Hall, 1993;  Sielken Jr., R.L., Bretzlaff, R.S., Stevenson, D.E ., Incorporating
Additional Biological Phenomena into Two-Stage Cancer Models  in Spitzer, H.L., Slaga, T.J., Greenlee, W.F.,
McClain, M., Eds. Receptor-Mediated Biological Processes: Im plications for Eval uating Carcinogenesis . New
York: Wiley-Liss, 1994; 237-60. Stevenson., D.E., Sielken Jr., R.L., Bretzlaff, R.S., Challenges to Low-Dose
Linearity in Carcinogenesis from In teractions among Mechanis tic Components as exemplified by the Concept of
"Invaders" and "Defenders" , BELLE Newsletter 1994; 3(2):1-8.  Stevenson, D.E., Dose-Response Studies of
Genotoxic Rodent Carcinoge ns: Thresholds, Hockey Sticks, Hormesis or Straight Lines? - Comment on the
Kitchin and Brown paper , BELLE Newsletter 1995; 3(3):14-15.
147 Gart, J.J., Krewski, D., Lee, P.N., Tarone, R.E., Wahrendorf, J. Statistical Methods in Cancer
Research. Vol. III – The Design and Analysis of Long-term Animal Experiments . IARC Scientific Publications.
Vol. 79. Lyon: International Agency for Research on Cancer (WHO), 1986.  Vincent, J.H., Donaldson, K., A
Dosimetric Approach for Relating the Biological Response of the Lung to the Accumulation of Inhaled MineralDust , British Journal of Industrial Me dicine 1990;47:302-7;   Morrow, P.E., Muhle, H., Mermelstein, R.,
Chronic Inhalation Study Findings as a Basis for Proposing a New Occupational Dust Exposure Limit , Journal
of the American College of Toxicology 1991;10(2):272-290;  David, J.M.G., The Role of Clearance and
Dissolution in Determining the Durability or Biopersistence of Mineral Fibers , Environmental Health
Perspectives 1994;102 (Suppl.5):113-117;  Hext, P.M. Current Perspectives on Particulate Induced Pulmonary
Tumours , Human & Experimental Toxicology 1994;13(10):700-715;  David, J.M.G., McDonald, J.C., Low
Level Exposure to Asbestos:  Is there a Cancer Risk?   (Editorial).  British Journal of Industrial Medicine 1988;
45:505-508; Lippmann, M., Deposition and Retention of Inhaled Fibres: Effects on Incidence of Lung Cancer
and Mesothelioma . Occupational and Environmental Medicine 1994;51(12):793-798.WT/DS135/R
Page 46
which case, even if the relationship between the dose in the tissues and the risk of cancer were linear,
the relationship between dose and exposure would be infra-linear, perhaps even with a threshold, and
the resulting relationship between exposure and risk would also be infra-linear, or with a threshold.
And this would also depend on the type of fibres.148  
3.103 Finally, Canada emphasizes that the available epidemiological studies which make it possible
to study the relationship between lung cancer and exposure to asbestos are statistically compatible
with the linear model, but when an a priori  non-modelized method such as "adjustment by least
squares weighted by distance" is applied, the form of the resulting curves is generally infra-linear,
except in the case of workers exposed to 100 per cent amosite.149  Infra-linearity and even a threshold
have been noted by various researchers in the case of chrysotile-cement workers,150 and miners
exposed to vermiculite contaminated by tremolite.151   For the reasons outlined above, in Canada's
view, the linear model must be presented as a possible model yielding an upper risk limit, and not as
yielding the most accurate or most probable risk estimate.  Finally, the possibility of a threshold must
be considered plausible and even very probable, even if it is difficult to determine this threshold
quantitatively.152
3.104 The European Communities  affirm that the carcinogenic character of asbestos for humans is
internationally recognized.  Since 1977, the WHO has recognized that all varieties of asbestos,
including chrysotile, are carcinogenic, causing cancer of the lung or mesothelioma.153  In 1986, the
ILO advised lawmakers, through Convention No. 162154, to have asbestos replaced by less harmful
materials or technologies as soon as possible.  In 1996, the WHO recommended that asbestos,including chrysotile asbestos, be replaced by harmless substitutes, wherever possible.  In 1998, WHO
reaffirmed the carcinogenic effect of chrysotile as bestos, particularly with respect to mesothelioma,
continued to promote substitution and noted that  the risk was very widespread among numerous
categories of workers.
3.105 According to the EC, asbestos is at the root of  a public health problem and chrysotile is the
cause of most asbestos-related diseases.  In 1998
155, the WHO reaffirmed that chrysotile "has been
associated with an increased risk of pneumoconiosis, lung cancer and mesothelioma in numerous
epidemiological studies of exposed workers", which confirms the conclusions of the 1996 INSERM
report.  Since asbestos began to be used for industrial purposes, chrysotile has accounted for about
95 per cent of world asbestos consumption.  Between 1945 and 1980, about 97 per cent of the
                                                     
148 Lippmann, M. Deposition and Retention of Inhaled Fibres: Effects on Incidence of Lung Cancer
and Mesothelioma .  Occupational and Environmental Medicine 1994;51(12):793-798.
149 Camus, M., Lung Cancer Mortality among Females in Qu ebec's Chrysotile Asbestos-Mining Areas
compared to that predicted by the U.S. E.P.A. Exposure-Effect Model  [doctoral thesis].  McGill University,
1997.
150 Hughes, J.M., Weill, H. Asbestosis as a Precursor of Asbestos Related Lung Cancer: Results of a
Prospective Mortality Study .  British Journal of Industrial Medicine 1991;48:229-233.
151 Vacek, P.M., McDonald, J.C. Risk Assessment using Exposure Intensity:  an Application to
Vermiculite Mining .  British Journal of Indust rial Medicine  1991;48:543-547.
152 Canada notes that Dr. Gibbs ( A Review of the Report:  "Rapport d'expertise collective INSERM "
October 1996, in paragraph 12) cites studies demonstrating the existence of a threshold, notably: Berry, G.,
Mortality and Cancer Incidence of Workers Exposed to Chrysotile Asbestos in the Friction-Products Industry
(1994) 38 Ann. Occup. Hyg. 539; Newhouse, M.L. and Sullivan, K.R., A Mortality Study of Workers
Manufacturing Friction Materials:   1941-1986 (1989) 46 British Journal of Industrial Medicine 1.
153 According to the EC, it is estimated that asbestos causes twice as many cancers of the lung as
cancers of the pleura (mesotheliomas), see Stayner  et al. Exposure to Chrysotile Asbestos and Cancer Risk:  a
Review of the Amphibole Hypothesis , American Journal of Occupational Health, 1996, 86:179-186.
154 International Labour Organization, Geneva, Convention concerning Safety in the Use of Asbestos
(Convention 162, adopted on 24 June 1986), International Labour Conference, Geneva.  See, in particular,Article 10.
155 IPCS Environmental Health Criteria (203) on Chrysotile , WHO, Geneva, 1998.WT/DS135/R
Page 47
asbestos consumed in France was chrysotile asbestos.  Since 1988, chrysotile has accounted for all the
asbestos consumed in France.156  According to the EC, these figures show that most asbestos-related
diseases are caused by chrysotile and not amphiboles, as Canada would have the Panel believe.  This
is confirmed by recent publications. Thus, according to the study by Stayner et al.:
"Our review of both the toxicologic and epidemio logic literature strongly supports the view that
occupational exposure to chrysotile asbestos is associated with an increased risk of both lung cancer
and mesothelioma".157
3.106 The EC note that the study coordinated by J. Peto158 and published in 1999 found that in six
European countries (France, Germany, Italy,  Netherlands, Switzerland, United Kingdom) nearly
10,000 people died of mesothelioma between 1990 and 1994.  Moreover, it estimated that during the
period 1995-2029 about 200,000 people would die of mesothelioma.  If these figures are extrapolated
to all the countries of Western Europe and deaths due to lung cancer are included, then the results
show that exposure to asbestos could lead to  about 500,000 deaths by cancer between now and 2029.
In France, the number of deaths due to mesothelioma is increasing steadily.  A recently published
study159, similar to that made by Peto et al ., predicts that the annual number of deaths due to
mesothelioma in France will go on increasing up to 2020.  It is estimated that in France over the entire
period 1996-2020 a total of 20,000 men and 2,900 women will die of mesothelioma.
3.107 The EC state that chrysotile poses a threat to an extremely large section of the population.
Several scientific studies show that a huge range of occupations and economic sectors is at risk.160
For a long time, the asbestos producing and consuming countries considered that the risks of cancerwere wholly restricted to "primary users"
161 (asbestos miners and workers in the asbestos-processing
industry).  In the early 1990s, an international scientific consensus emerged to the effect that theasbestos-related risks for secondary users (users of asbestos-based products, servicing and
maintenance workers, "do-it-yourself" enthusiasts, and specialists in asbestos removal and
containment) had been historically underestimated.
162  According to the EC, many sectors are exposed
to asbestos and they are usually far from fitting the description of the traditional asbestos mining and
processing industries.163  Thus, 4 per cent of construction industry trades and 4 per cent of jobs in the
industrial manufacturing sector are exposed to asbestos.  As noted by the WHO in its report 203 on
the risks of chrysotile asbestos:  "Risks are likely to be greater among workers in construction andpossibly other user industries".
164  The recent study by Y. Iwatsubo et al .165 shows that the great
majority of cancer cases occur among "secondary users".  These workers are often unaware of the risk
they are running, since when asbestos is mixed with other materials, particularly cement, its presence
is not readily discernible.
                                                     
156 See para. 3.22 above.
157 Stayner, L.T. et al., Occupational Exposure to Chrysotile Asbestos and Cancer Risk:  a Review of
the Amphibole Hypothesis , American Journal of Public Health. 1996, 86:179-186. Smith et al ., Chrysotile
Asbestos, the Main Cause of Pleural Mesothelioma , American Journal of Industrial Medicine, 1996,
30:252-266.
158 Peto et al., The European Mesothelioma Epidemic , British Journal of Cancer (1999), 79 (3/4),
666-672.
159 Gilg Soit Ilg, A., Bignon, J., Valleron, A-J ., Estimation of the Past and Future Burden of Mortality
from Mesothelioma in France .  Occupational Environmental Medicine, 1998; 55:760-765.
160 See paras. 3.78 et seq.  above.
161 See para. 3.59 above.
162 Health and Safety Commission, United Kingdom, (1999), Proposals for Amendments to the
Asbestos (Prohibitions)  Regulations 1992 . See also para. 3.59 above.
163 See paras. 3.78 et seq . above.
164 IPCS Environmental Health Criteria (203) on Chrysotile , WHO, Geneva, 1998.
165 Iwatsubo, Y. et al , Pleural Mesothelioma:  Dose-Response Relation at Low L evels of Asbestos;
Exposure in a French Population – Based Case – Control Study , American Journal of Epidemiology, 1998,
Vol.148, no. 2.WT/DS135/R
Page 48
3.108 The EC stress that the international scientif ic community does not recognize the existence of
a threshold of harmlessness for chrysotile.  It is important to note the distinction between the
establishment of occupational exposure limits and the existence of a threshold of harmlessness below
which there is no risk to health. The occupational exposure limits take into account various criteria,including the technical feasibility of obtaining suff iciently low exposure levels in the workplace and
the technological means of measuring actual levels for monitoring purposes.  Thus, the occupational
exposure limit does not correspond to a threshold of harmlessness which, in the case of asbestos, has
never been found.  Since as long ago as 1976, the IARC has recognized that "at present it is not
possible to assess whether there is a level of exposure in humans [to asbestos] below which an
increased risk of cancer would not occur".
166  This position received support from the WHO in its
1998 report167, which states that "no threshold has been identified for carcinogenic risks", thus
confirming the conclusions of the 1996 INSERM report.  According to the EC, all the scientific
studies show the existence of a linear relation between the dose of asbestos inhaled and the risk of
cancer.  In 1998, the WHO168 noted that "there was a clear dose-response relationship (...)".  The
results of more recent studies169 confirm the impossibility of identifying a threshold below which
asbestos would not present any risk for the populations exposed.  As pointed out in the CollegiumRamazzini report, "The strictest occupational exposure limits in the world for chrysotile asbestos
(0.1 f/cc) are estimated to be associated with li fetime risks of 5/1,000 for lung cancer and 2/1,000 for
asbestosis (Stayner et al., 1997)."  The EC incorporate here, by reference, the report by the Collegium
Ramazzini communicated to the Panel on 7 May 1999.
3.109 The EC state that the number of cases of asbestos-related diseases correlates with the amount
of asbestos imported.  An analysis of the data for ten Western countries shows a very strong
correlation between the incidence of mesothelioma and per capita asbestos consumption measured in
terms of imports.  In each country, the number of cancer cases increases in proportion to the increase
in asbestos imports.
170  Accordingly, in view of the acknowledged carcinogenicity of asbestos,
whatever the variety, the number of deaths recorded or predictable over 30 years, the absence of a
threshold of harmlessness, the proportion of total asbestos consumption represented by chrysotile and
the direct link between the amount of asbestos used and the number of cancer cases, it is essential to
stop the risk from spreading by banning all future use of asbestos, whether amphibole or chrysotile.
3.110 The EC state that France has the right to establish its own level of protection against the
inhalation of asbestos fibres.  The scientific findin gs available to France when it took its decision to
ban asbestos were unambiguous.  It has been scientifically established that:  (i) chrysotile is a toxic
material which has a dramatic effect on health (mesothelioma, cancer of the lung, asbestosis) and is
no less toxic than other varieties of asbestos;  (ii) there is no threshold of harmlessness as far as the
carcinogenicity of chrysotile is concerned and large numbers of people (several millions) are at risk;
(iii) controlled use is neither applicable nor effect ive;  (iv) the substitutes for asbestos in asbestos
cement (PVA, cellulose) and para-aramids give no cause for concern, asbestos- cement accounting for
the vast majority (90 per cent) of the asbestos being used at the time of the ban;  (v) there is no
evidence of the other substitutes (man-made mineral fibres) being carcinogenic in humans.  Among
these substitutes, only ceramic fibres, which are very rarely used (to withstand very high
temperatures), are carcinogenic in animals and should therefore be employed with due care.
                                                     
166 Landrigan, P.L., Asbestos – Still a Carcinogen, 338, New England Journal of Medicine 1619
(May 1998).
167 IPCS Environmental Health Criteria (203) on Chrysotile , WHO, Geneva, 1998.
168 Id..
169 Iwatsubo, Y. et al , Pleural Mesothelioma: Dose-Response Relation at Low L evels of Asbestos;
Exposure in a French Population – Based Case – Control Study , American Journal of Epidemiology, 1998,
Vol.148, no. 2.
170 Takahashi, K. et al., Ecological Relationship between Mesothelioma Incidences/Mortality and
Asbestos Consumption in Ten Western Countries and Japan,  Journal of Occupational Health, 1999, 41:8-11.WT/DS135/R
Page 49
3.111 The EC emphasize that the scientific data on which France based its case were of very high
quality.  The substitute fibres are more than 10 microns in diameter, which makes it physically
impossible for them to penetrate into the pulmonary al veoli.  With regard to the effects of asbestos on
health, France based its case on the joint report of INSERM171, one of the most important world
biological and medical research bodies.  INSERM's report consisted of a critical and reasoned review
of the world scientific literature by a multidisciplinary team of 11 scientific experts.  The method and
scope of this work (12 chapters of discussion supported by 1,200 bibliographic references) make it
fundamentally different from any monograph or fragmentary study.  The quality of the work has been
acknowledged by the entire scientific community, including the Canadian experts.  The United States,
in its third-party submission, fully endorses the conclusions of the INSERM report, including those
concerning linear extrapolation to low doses.  The EC consider, therefore, that Canada cannot criticizeFrance for basing its case on this report.  France has been concerned with the question of substitutes
for asbestos ever since it began considering a ban.  At the same time as it requested a report on
asbestos from INSERM, in the autumn of 1995, France requested an initial report on man-made
mineral fibres from the Groupe de surveillance des atmosphères de travail
172 (G2SAT) in order to
obtain an initial insight into the harmfulness of the most suspect fibres which the proponents of thecontrolled use of asbestos are always stressing.  This group based its conclusions on previous
scientific research conducted over a period of many years.
173  The conclusions of G2SAT, submitted
to the Government in June 1996, were confirmed by the results of the INSERM report on man-made
fibres begun shortly after the submission of the report on asbestos.  The fibres used as a substitute for
asbestos in asbestos-cement were found to have given no cause for concern.  This was confirmed bythe report of the CSTEE
174 of DG XXIV of the Commission of the European Communities, and then
by the United Kingdom's COC.175  The scientific data on substitute fibres, on which France based its
decision to ban asbestos, are thus broadly supported by other scientific authorities.  According to the
EC, Canada cannot maintain that France has replaced asbestos with the "unknown" risk of substitutes.
3.112 The EC state that, in the light of this assessment of the risk based on sound and internationally
recognized scientific findings, France has adopted a risk management regime.  As "safe" use is
insufficient to eliminate the risk of an excess of cancers and as France is applying, on the one hand,
the principle of replacement by a less dangerous product and, on the other, the principle of reduction
of the risk to the lowest level technically feasible, it has decided to impose a ban with exceptions.  The
EC contend that this is the only solution capable of preventing the spread of the risk associated with
materials containing asbestos.  The measure is sharply reducing asbestos consumption, which isknown to be very closely linked with the incidence of asbestos-related diseases.  This solution offers
every technical guarantee of safety since provision is made for exceptions when substitution does not
ensure equivalent performance.  At the same time, France has undertaken to explore the question of
substitute products
176 in greater depth.  It is also simultaneously strengthening the measures designed
to protect workers exposed to " in situ  asbestos", namely, the hundreds of thousands of maintenance
workers, as well as the much smaller numbers engaged in more dangerous work such as asbestos
                                                     
171 Peto et al , The European Mesothelioma Epidemic , British Journal of  Cancer, 1999, 79 (3/4):
666-672.
172 Fibres minérales artificielles et amiante (Résumé) , Report of the Groupe scientifique pour la
surveillance des atmosphères de travail (G2SAT) , INRS – DMT no. 69.
173 The EC refer in particular to the WHO publication , Environmental Health Criteria 151, Selected
Synthetic Organic Fibres , WHO, Geneva 1993.
174 Avis concernant l'amiante chrysotile et les produits de substitution envisageables, Scientific
Committee on Toxicity, Ecotoxicity and the Environment (CSTEE), 15 September 1998.
175 Statement for Health and Safe ty Executive (HSE) on Carcinogenic Risks of Three Chrysotile
Substitutes , Committee on the Carcinogenicity of Chemicals in Food, Consumer Products and the Environment
(COC), July 1998.
176 The EC point out that, as soon as the INSERM report on man-made mineral fibres came out, France
adopted an action plan aimed at protecting workers exposed to man-made mineral fibres.WT/DS135/R
Page 50
removal and containment.  France is also reinforcin g its building surveillance measures by monitoring
false ceilings, as well as flocking and lagging.
3.113 The EC emphasize that the aim of the Decree is consistent with the WHO and ILO
recommendations.  It is intended to establish an obligation to replace asbestos and products ormaterials containing asbestos whenever alternative materials or techniques are available, assuming
always that they constitute a lower risk.  The Decree provides for temporary exceptions to the rule in
those very few cases in which there is no lower-risk substitute capable of ensuring equivalent
performance.  For these residual uses of asbestos, enterprises must request a waiver and undertake to
carry out research with a view to abandoning the use of asbestos as quickly as possible.  An enterprise
which replaces asbestos with another material must rigorously:  (i) ensure that, in the light of the
knowledge available, the substitute represents a reduced risk to the health of a worker handling theproduct;  and (ii) test the finished product in order to verify that it offers every technical guarantee of
safety appropriate to its end use.  Some three years after the Decree came into force, the use of
asbestos in France is now much reduced and only involves a few precisely targeted and not very
widespread industrial applications. The EC estima te that almost 100,000 tonnes of carcinogenic fibres
have therefore been eliminated during this period in the form of materials potentially dangerous forthe user and have been kept out of French buildings and factories.
177
3.114 According to the EC, Canada's case is based on incomplete and largely erroneous data.  In its
arguments, Canada relies heavily on assertions which have no scientific foundation and, more often
than not, are based on old or partial reports that are scientifically obsolete or of very debatable value.Canada makes many erroneous statements in support of its case and seeks to obscure well-established
facts by creating confusion or omitting important data.  The EC contend that many of Canada's
assertions are unfounded or erroneous, for example:
(a) The characteristics of chrysotile:
(i) The failure to make a distinction between the risk of mesothelioma and the
risk of cancer of the lung:  Canada regularly omits to point out that, whereas
the risk of mesothelioma is lower for chrysotile than for amphiboles, this is
not true for cancer of the lung;
(ii) The assertion that the risk due to chrysotile is "undetectable", whereas many
scientific studies show that its effects are indisputable.
(b) The French data:
(i) The assertion that amphibole fibres were "widely used" in France is
absolutely wrong;
(ii) The assertion that France has favoured French products, whereas the EC has
emphasized that most of the products used as substitutes for asbestos are
imported into France.
(c) "Safe" use:
(i) The assertion that there is no scientific evidence of risks linked with so-called
"modern" use (also called "controlled" or "safe" use) of chrysotile, whereas
numerous scientific publications cited by the EC (but not mentioned by
Canada) clearly show the opposite to be true;
                                                     
177 The EC note that, in 1994, France imported 35,000 tonnes of asbestos and produced 436,000 tonnes
of asbestos-cement (Source:  Association Française de l'amiante).WT/DS135/R
Page 51
(ii) The assertion that "there are effective methods for reducing dust creation"
and that the safe use of asbestos is "based on proven scientific knowledge",
whereas all the data by the EC show the opposite to be true.
3.115  The EC state that Canada is seriously confus ing the issue or making significant omissions.
(a) Confusing the issue:
(i) Confusing the level of chrysotile fibres in the environmental ambient air with
that in the workplace by suggesting that the very low levels of fibres
encountered in the ambient air of cities and buildings are the only problem
potentially linked with asbestos.  The level of 0.0005 fibre per ml of air,
which Canada always cites to show that the corresponding risk is
"undetectable" or zero, is about 100,000 times lower than that created by
certain routine operations on asbestos-cement parts;
(ii) Systematic confusion between friable products and amphiboles with non-
friable products and chrysotile.  In reality, raw asbestos, whether of the
amphibole or chrysotile variety, is always spontaneously178 friable.  It is quite
wrong to associate amphiboles exclusively with friable products, such as
flocking and lagging, and chrysotile exclusively with non-friable products,such as asbestos- cement.  Since amphiboles were banned, all asbestos-
containing products, whether friable or non-friable, have been based on
chrysotile.
(b) Omissions
(i) Systematic omission of the circumstances of occupational exposure most
dangerous to health.  Thus, in its desc ription of the circumstances of exposure
in the construction industry, Canada mentions construction and demolition
activities, but simply disregards the fact that once asbestos has been used in
the construction of a building, and until the latter is demolished, any
installation containing asbestos is likely, during its life cycle, to require someform of plumbing, heating or electrical  work carried out by professionals or
amateurs.
(ii) Systematic omission of the high occupational levels of exposure associated
with everyday uses.  Canada cites only a few figures indicating low levels of
exposure, omitting to mention the very high figures encountered daily,
although they are well-known and have been widely published;
(iii) Systematic omission of the data on the ill-effects on health associated with
the use of chrysotile in Canada itself.  Thus, Canada seems to be unaware of
its own statistics, which reveal a very sharp and rapid increase in cancers
caused by chrysotile.  Canada must be aware of the publicly-funded scientific
research being carried out in Canada by well-known research teams, the
results of which are widely published in the scientific press.  Canada neverrefers to this work, which shows that in Canada the risks due to chrysotile are
high and at least as great as in the other industrial countries;
(iv) Systematic omission of the most recent scientific research confirming the
risks associated with chrysotile, in particular the reports of international
                                                     
178 That is, without human intervention, explain the EC.WT/DS135/R
Page 52
organizations to which Canada itself belongs.  Thus, Canada cites two World
Health Organization reports, one of which dates from 1986 and the other
from 1988.  It appears that, for Canada, research and the acquisition of new
knowledge came to a halt more than ten years ago.  Thus, Canada makes no
reference to report 203 of the World Health Organization published in 1998(although it is clearly identified as being an update of the 1988 report), which
recognizes the dangers to health posed by chrysotile asbestos and clearly
expresses doubts about the possibility of effectively controlling exposure in
the building industry.
3.116  The EC state that Canada is using reports whose scientific value is highly debatable or citing
reports too selectively.  Canada considers that France's ban on all forms of asbestos is not
scientifically well-founded. This criticism is mainly based on two reports.  These reports are,however, of very debatable scientific value or cited only selectively, with the omission of those
elements that conflict with Canada's point of view.  According to the EC, the report of the  Académie
Nationale de Médecine , signed by E. Fournier
179, is of debatable value.  As pointed out by
Prof. Terracini of the University of Turin180:  "a major limitation of this report is the total lack of
bibliographic references.  In addition, it is severely unbalanced on several issues".  Drawn up bysomeone who had never previously published anything in the field of asbestos-related risks
181, the
report can be no more than the expression of a personal opinion.  In this respect, Prof. Terracini's
conclusion is unequivocal:
"This report has been obviously written by persons with no knowledge of the epidemiological methods
and of the subtleties of causal inference.  It provides no original information and can hardly be of anyuse in an overall evaluation of the case".
3.117  The EC state that the report of the Royal Society of Canada was prepared in haste at the
request of the Canadian Government.182  It should be noted, first of all, that on its own admission the
Royal Society of Canada's Panel of scientific experts had to work too quickly, as it several times
acknowledges (see, for example, page 15 of the English text), was not able to reach a consensus
among its members (page 15 of the English text) and worked on an incomplete draft of the INSERM
report (page 1 of the English text), which obviously explains certain erroneous interpretationsresulting from a misunderstanding of the text.  The arguments developed in the Royal Society of
Canada report have already been the subject of a detailed analysis which showed that the criticisms of
the INSERM report were based on an over-hasty reading of an incomplete document and are not well-
founded.
183  The EC note, furthermore, that Canada used the Royal Society of Canada report partially
and selectively and, in any event, failed truly to reflect the opinion of the group of scientific expertson the main conclusions of the INSERM report.  In this connection, the following extracts from the
Royal Society of Canada report should be cited:
"The Panel agreed with INSERM's findings on the following points:  all asbestos fibres are
carcinogenic, regardless of their mineralogical nature;  the risk of lung cancer is higher for longer andfiner fibres for low dose and dose-rate exposures, the linear no-threshold model is used by all
                                                     
179 Académie Nationale de Médecine (Etienne Fournier), Amiante et protection de la population
exposée à l'inhalation de fibres d'amiante dans les bâtiments publics et privés , Bulletin de l'Académie Nationale
de Médecine, Vol. 180, no. 4, April 1996.
180 B. Terracini, Review of Technical and Scientific Document s Annexed by Canada to its Submission of
April 26 , document of 19 May 1999, submitted to the Panel by the EC on 21 May 1999.
181 The EC note that an extensive search of the international bibliographical databases failed to reveal
any scientific publication by the author of this report concerned with the study of asbestos-related risks.
182 Royal Society of Canada, A Review of the INSERM Report on the Health Effects of Exposure to
Asbestos, Royal Society of Canada, Ottawa, 1996.
183 Terracini, B., Review of Technical and Scientific Docume nts Annexed by Canada to its Submission
of April 26 , document of 19 May 1999, submitted to the Panel by the EC on 21 May 1999.WT/DS135/R
Page 53
regulatory agencies that have performed quantitative risk assessments; research should be done on
substitutes for asbestos;  the linear no-threshold hypothesis for low exposure levels is not the onlypossible strategy in risk assessment, but evidence is not available to demonstrate that a different
hypothesis is a superior predictor of risks from low exposures." (pages 4-6 of the English text)
3.118 The EC stress that the points on which the Royal Society of Canada says it agrees with the
INSERM report are the essential points on which the French decision to ban asbestos is based.
"Our hope was that we could give consensual answers.  We could not always do so.  In retrospect, the
hope seems to have been foolishly optimistic.  Scientists cannot achieve consensus on contentious
issues after two weeks of reading and two days of face-to-face discussion."  (pages 14 and 15 of the
English text)
3.119 In conclusion, the EC emphasize that Canada's assertion that the experts who analysed the
INSERM report "sharply criticized" the methods employed and "very severely criticized" its
conclusions is, at the very least, tainted with partiality and does not truly reflect the contents of theRoyal Society of Canada report.  Moreover, it is inconsistent with almost all the scientific data from
the relevant international institutions.
5. “Controlled” or “safe” use of chrysotile asbestos
3.120  Canada emphasizes that the public's perception of the harmful health effects of using
different types of asbestos in various applications has exerted a greater influence on risk management
decisions than risk evaluation has. This phenomenon is the result of a conceptual confusion between
the terms “hazard” and “risk”.  Information on “hazards,” erroneously presented as information on
“risks”, has provoked unjustified fears with regard to the undesirable effects of asbestos, such as
cancer, in the population. In Regulati on No.1488/94 of the European Commission
184, hazard is
described as being “the adverse effects which a substance has an inherent capacity to cause”. Risk, on
the other hand, is defined as "the likelihood that an adverse effect will be caused under the known or
the reasonably foreseeable conditions of use".  Thus, it is appropriate to distinguish between the
“hazards” associated with chrysotile fibres and the “risks” associated with the modern uses of
chrysotile fibres.  According to Canada, the characterization of the hazardous properties of asubstance is not the same as an evaluation of the real risk of all its uses. The evaluation of the
associated hazards is an important element but not sufficient in itself to evaluate the risk, which also
encompasses evaluating the exact nature of the substance, data on long-term exposure and estimating
the probable risk under current conditions of use. Thus, it is essential that the issue of the risks
associated with a product be evaluated in the light of its various uses.
3.121  Canada points out that, today, chrysotile represents more than 97 per cent of the asbestos
used. Its use is limited to a certain number of high-density applications, above all construction
products based on chrysotile-cement, friction materials based on chrysotile and a number of plastic,
resin and bitumen materials containing chrysotile, all of which are safe applications. The distinction
between these uses and past uses is vitally important when evaluating the real risks posed by
chrysotile.  In Canada’s view, an evaluation of the effects of asbestos in the workplace or in theenvironment must take into account the latest risk analyses, the current occupational exposure limits
and modern applications using chrysotile exclusiv ely in high-density materials.  The risk can be
managed through numerous forms of government action. In the case at issue, two forms of
government action are examined for the purpose of determining the appropriateness of the French
measure: controlled use; and the complete ban on asbestos, without distinction among the types ofasbestos fibres and their multiple uses.
                                                     
184 Commission Regulation (EC) No.1488 of 28 June 1994 laying down the principles for the
assessment of risks to man and the environment of exis ting substances in accordance with Council Regulation
(EEC) No.793/93, O.J., L.161/3.WT/DS135/R
Page 54
3.122  According to Canada, the appropriate manner of regulating asbestos must be seen in a broad
context. In a world in which global trade is b ecoming increasingly extensive, it is all the more
important to adopt a uniform approach to the formulation of policies and regulations.  The most
effective and objective way to deal with these matters is to seek an international consensus whenever
possible. With regard to asbestos, in Canada’s view, the scientific data provide a solid basis forreaching sensible decisions regarding the regulation not only of asbestos, but also of the growing
number of potentially hazardous fibres in general, some of which are being used in France as a
substitute for asbestos. The lessons to be learned from the uncontrolled use of asbestos point to the
importance of establishing appropriate regulations. The most logical and consistent approach to
regulation is to reach an international consensus based on the best scientific data.  Thus, controlled
use means establishing and applying appropriate regulations to ensure the rigorous control of
exposure to chrysotile and products containing chrysotile, with the aim of reducing to an undetectablelevel the risks associated with the extraction, crushing, manufacturing, shipping and handling of this
product. Chrysotile is expressly mentioned because the use of amphiboles is banned virtually
everywhere at the present time. The principle of controlled use also means that certain uses for which
exposure cannot be controlled to an acceptable degree should be banned.
3.123  Canada considers that one of the most in-depth reports on the effects of asbestos and asbestos-
containing products is the report published in 1984 by the Royal Commission on Matters of Health
and Safety arising from the Use of Asbestos in Ontario. This report, still considered one of the most
exhaustive studies of asbestos, recommends that the use of chrysotile be continued under conditions
of controlled use.
185  In 1988, under the aegis of the International Programme on Chemical Safety of
the World Health Organization (WHO), a working group was convened to evaluate the environmentalcontamination caused by asbestos. In its recommendations, the working group drew a distinction
between the risks posed by brittle, low-density products and the risks posed by high-density products
such as chrysotile-cement. The working group recommended that the use of low-density products be
discouraged all over the world. It also concluded that the normal use of products containing high-
density chrysotile, including chrysotile-cement, does not pose a risk to the general public.
186  In 1989,
a group of experts met at Oxford under the aegis of the WHO and formulated recommendations for
exposure to asbestos limits in the workplace. In their final report, the participants recommended a
maximum exposure of 2 f/ml (weighted average over  eight hours), an objective that can be reached
everywhere at low cost, and expressed their desire to see efforts made to reduce this rate to 1 f/ml.187
3.124  Canada emphasizes that, apart from the regulation of exposure to chrysotile limits in the
workplace, the issue of asbestos in buildings, both with regard to occupants and to maintenance and
repair crews, has been addressed on several occasions. A study by the HEI published in 1991concluded that there is not sufficient evidence of health risks to the occupants of buildings where
sprayed asbestos is used to justify the removal of intact materials containing asbestos.
188  According to
Canada, the conclusions of the HEI are in agreemen t with those of the experts from around the world
who attended a symposium held at Harvard University in 1989 on the health aspects of exposure to
asbestos in buildings.189  The report of this symposium states that the dust diffusion values in
buildings where materials containing asbestos have been used are extremely low.190  The report also
                                                     
185 Report of the Royal Commission on Matters of Health and Safety arising from the Use of Asbestos
in Ontario, Table of Contents and Overview, Toronto, Queen’s Printer, 1984.
186 International Programme on Chemical Safety, Report of an IPCS Working Group Meeting on the
Reduction of Asbestos in the Environment , Rome, 12-16 December 1988,WHO, Geneva, 1988, p.19.
187 WHO, Exposure to Asbestos Limits in the Workplace , Report prepared by a WHO committee,
Oxford, United Kingdom, 10 and 11 April, 1989, p.12.
188 Asbestos in Public and Commercial Buildings: A Literature Review and Synthesis of Current
Knowledge (Executive Summary ), Health Effects Institute – Asbestos Research, Cambridge, 1991, p. 1-12.
189Spengler, J. et al. , Summary of Symposium on Health Aspects of Exposure to Asbestos in Buildings ,
Energy and Environmental Policy Center, Harvard University, 14-16 December 1988, pp. 26 and 27.
190Id., p.27.WT/DS135/R
Page 55
states that the risk posed by installed asbestos is very low, both in absolute and relative terms, and that
this risk is much less acute than most other en vironmental hazards, including cigarette smoke and
radon, for instance.191 Nonetheless, the report continues, increased protection should be afforded to
public works and maintenance crews exposed to brittle asbestos that can be disturbed.192
3.125  Canada points out that all international standards on asbestos establish parameters for its
controlled use. Chief among these is Convention 162 concerning Safety in the Use of Asbestos and
the accompanying Recommendation 172.193  These standards were adopted in 1986 by representatives
of governments, industry and labour unions meeting under the aegis of the International Labour
Organization (ILO). Convention 162 recommends st rict regulation of chrysotile, but does not
recommend a total ban, except for crocidolite and sprayed asbestos. Recommendation 172 sets forth
the minimum labour standards to be observed in order to prevent and control the risks associated with
occupational exposure to chrysotile.  Countries which ratify Convention 162 concerning Safety in theUse of Asbestos make a commitment to implement laws and regulations prescribing the measures to
be taken to prevent and control the health risks associated with occupational exposure to asbestos and
to protect workers against these risks.  In addition, there exists a general reference code, the collection
of the International Labour Office entitled Code of Practice on Safety in the Use of Asbestos .
194  The
guidelines contained in this Code are aimed at preventing, eliminating or reducing as much aspossible the exposure to asbestos dust and safeguarding the health of workers engaged in operations
that could give rise to such exposure. The first part of the Code deals with workplace regulations,
methods of prevention, packaging, shipping and intermediate storage of asbestos, the elimination of
debris and the protection of workers’ health. The second part deals with prevention in certain
activities: mining extraction, the manufacturing and utilization of asbestos products (asbestos-cement,friction products, etc.), insulation work, construction work and demolition work.  Finally, the ISO
195
has issued a number of standards applicable, inter alia , to the diverse applications making use of
asbestos. These standards cover the use of a broad range of modern products containing chrysotile-
cement, including tubes, corrugated, ribbed and smooth panels, shingles and pipes. In particular, they
contain guidelines for construction sites where asbestos-cement products are in use.
3.126  Canada notes that, in the United States, the attempt by the EPA to ban asbestos failed.  In
1989, the EPA adopted a regulation that provided for the prohibition and progressive elimination of
94 per cent of all commercial uses of asbestos over a period of seven years. In so doing, the EPA had
wholly disregarded all the evidence submitted to it indicating that the past, outdated uses of asbestos
did not provide any justification for a complete ban and that chrysotile asbestos can be used in a safe
manner. The EPA did not consider either the uncertainty surrounding the health risks of using
substitute products or the additional costs of using such substitute products.  The EPA regulationbanning asbestos was appealed in court. The Court of Appeals concluded that the risks presented by
the EPA were not supported by the scientific facts.
196 The Court ruled that the EPA would have to
prove that the products covered by the ban posed an unacceptable risk. Thus, the ban was annulled
                                                     
191 Id., p.26.
192 Asbestos in Public and Commercial Buildings: A Literature Review and Synthesis of Current
Knowledge (Executive Summary), Health Effects Institute – Asbestos Research, Cambridge, 1991, pp.1-12.
193 Convention concerning Safety in the Use of Asbestos (Convention 162), adopted on 24 June 1986,
International Labour Conference, Geneva; Recommendation concerning Safety in the Use of Asbestos
(Recommendation 172), adopted on 24 June1986, International Labour Conference, Geneva.
194 Code of Practice on Safety in the Use of Asbestos, International Labour Organization, Geneva,
1984.
195 International Organization for Standardization, Standard ISO-7337, 1984.
196 Ruling of the 5th Circuit Court of the United States dismissing the EPA regulation, handed down on
18 October 1991.WT/DS135/R
Page 56
and the EPA was ordered to consider all the evidence that it had initially disregarded. In 1997,
practically all the uses that had originally been banned were re-admitted by the EPA.197
3.127  Canada points out that, prior to adoption of the Decree, France maintained a policy of
controlled use. Indeed, it appears that the legislative provisions on asbestos provided adequate
protection to workers and consumers.  A review of  French legislation shows that the hazardous uses
of asbestos were already banned before the Decree. Sprayed asbestos was banned for all buildings in
1978.198 Amphiboles were banned in 1994, including marketing, use and importation of these
products.199  The levels of exposure to asbestos dust were strictly regulated. Successive reductions in
the exposure limits to airborne dust in workplaces had been adopted. The regulation currently in effect
in France prescribes a workplace exposure limit of 0.1 f/ml.200  A large number of products that had
traditionally contained asbestos had already been banned by successive Decrees.201  Finally, measures
had been taken to protect the population against passive exposure to asbestos in buildings. A Decreeimposes the obligation on all building owners, with the exception of owners of single-family
dwellings, to search for the presence of sprayed asbestos or heat insulation containing asbestos and
brittle materials likely spontaneously to release asbestos fibres into the air and to verify the good
condition of these materials by means of an evaluation grid or dust measurements, so as to determine
whether work would be necessary.
202  In light of all these actions, it may be concluded that the French
Government had already regulated the risks associated with the use of asbestos, including those
deriving from the use of chrysotile fibre, prior to the adoption of the ban. According to Canada, there
have been no new scientific findings that would justify the change in the asbestos regulations adopted
by France.
3.128  The European Communities indicate that Canada implies that chrysotile previously
accounted for a smaller proportion of the asbestos consumed.  This statement is wrong, as can be seen
in the figures for global consumption of chrysotile and amphibole asbestos.  In France, for example,
since 1945, around 97 per cent of the asbestos used has been chrysotile-cement.  Furthermore, the EC
highlight below the inadequacies of safe use for protecting the health of workers and the population.
The EC welcome Canada’s recognition that “The principle of controlled use also means that certain
uses for which exposure cannot be controlled to an acceptable degree should be banned” (Canada
does not, however, define what these uses are nor their frequency).  Like the WHO, the EC consider
                                                     
197 See the list of permitted uses in the United States:  EPA, Regulation of 5 November 1993, Vol. 58,
no. 213. pp. 58964-58968, 40 CFR, Section 765.
198 Decree No.78-394 of 20 March 1978.
199 Decree No.94-645 of 26 July 1994.
200 Decree No.96-98 of 7 February 1996 concerning the protection of workers against the risks
associated with asbestos dust inhalation.  Canada notes that this Decree establishes the principles of prevention
in the three work situations in which a worker is exposed to asbestos by virtue of his activity: manufacturingactivities, for which the prohibition is not an exceptional and temporary measure; asbestos removal orcontainment operations; contact with asbestos during maintenance work. The report of the Office parlementaire
d’évaluation des choix scie ntifiques et technologiques  emphasizes that, according to the dose-response ratios
established by INSERM and in view of the current worker exposure standards (i.e., 0.1 f/ml), “it can therefore
be asserted that the measures provided for workers […] appear to be quite appropriate and sufficient”. (WTOtranslation)
201 Toys, materials or preparations for spraying, finished products in powder form meant for retail sale
to the public, merchandise for smokers, catalytic screens and insulation materials in heating equipment using
liquefied gas, paints, varnishes, road coating products if  the fibre content is greater than 2 per cent, mortar,
protective finishes, fillers, sealing products, joining pastes, mastics, glues, decorative powders and wall faces,low-density insulation or soundproofing materials, air filters and filters for the transport, distribution and use ofnatural gas or city gas, backings for plastic-coated wall and floor liners, finished textiles, bituminized felts forroofing, toasters, heat distribution devices, ironing boards, ironing board covers, iron holders, mobile heaters,insulation panels for the do-it-yourself market, boxed insulation panels for the professional market and materials
destined for heat insulation in heating equipment, pipes and cable jackets.
202 Decree No.96-97 of 7 February 1996 concerning the protection of the population against the health
risks associated with exposure to asbestos in buildings.WT/DS135/R
Page 57
that all servicing and maintenance operations cannot be controlled because of their frequency and
their ubiquity.  Moreover, according to the EC, intern ational scientific data show that controlled use
does not suffice to prevent the risk of cancer in asbestos-processing industries (manufacture of
asbestos-containing products) nor in removal activities.  Under such circumstances, the EC consider
that it is justified to ban all uses of asbestos.
3.129  The EC point out that Canada cites the repo rts of the Ontario Commission and the WHO: one
of which dates from 1984 and the other from 1988.  It appears that, for Canada, research and the
acquisition of new knowledge came to a halt more than ten years ago.  Thus, Canada makes no
reference to report 203 of the World Health Organization published in 1998 (although it is clearly
identified as being an update of the 1988 report), which recognizes the dangers to health posed by
chrysotile asbestos and clearly expresses doubts about the possibility of effectively controllingexposure in the building industry.  The EC stress that this document confirms the conclusions of the
INSERM report.  The EC note that, according to Canada, “a group of experts met … under the aegis
of the WHO … [and] … recommended a maximum e xposure of 2 f/ml … [and] … expressed their
wish that efforts be made to reduce this rate to 1 f/ml”.  Here again, the document cited by Canada
dates from 1989.  The EC note that, since then, many findings have highlighted the risks at muchlower levels:  some of these findings were analysed in the INSERM report.
3.130  The EC point out that the INSERM experts were aware of the HEI report, cited by Canada,
and analysed it in detail in 1996 – observing that:
• It only deals with risks associated with the presence of persons inside buildings
containing asbestos, excluding other exposur es, occupational exposure in particular;
INSERM’s mandate related to all exposures;  concerning exposure in buildings,
INSERM’s findings are the same as those of the HEI, but INSERM focused above all
on what is considered by all experts to be the major risk of asbestos, namely,
occupational exposure.
• The model used by the HEI to establish the very low risks linked to very low levels of
exposure usually to be found in well-maintained buildings is exactly the same as that
used by INSERM (linear model without a threshold) and so disparaged by Canada.
The information concerning this model can be supplemented by citing the report of
the Royal Society of Canada, to which Canada often refers:  “but the Panel agrees[with INSERM] that regulatory agencies use the model in this form”.  Lastly, the EC
consider that it is tendentious to state, as Canada does, that in France “the hazardous
uses of asbestos were already banned before the Decree”.  This statement takes it as a
fact that uses such as work on asbestos-c ontaining materials, which were certainly not
banned in France, are not hazardous.  The EC reject this statement.
3.131 The EC point out that the available scientific data show that a high mortality rate persists
despite the so-called “safe” use of chrysotile asbestos.  Surveys carried out more than thirty years after
the introduction of a “controlled use” policy in the United Kingdom indicate a significant excess of
deaths from lung cancer and mesothelioma, not just among workers in plants where “safe” use was
enforced, but above all in the population working outside such plants.  According to the manual of the
Canadian Asbestos Institute, the “safe” use policy is based on an “at-source” control system whichconsists of an “agreement” among producers, chrysotile exporters and manufacturers of
asbestos-containing products
203, whereby the latter undertake to comply with rules designed to protect
their employees and, in particular, to ban the on-site cutting of asbestos-cement.  This is possible
because Canadian production methods enable “made-to-measure” units to be manufactured at the
plant, thus obviating the need for on-site cutting.  However, as the manual admits, voluntary
                                                     
203 Safe Use of Chrysotile Asbestos:  a Manual on Preventive and Control Measures  (available on the
Internet).WT/DS135/R
Page 58
participation by manufacturers remains the cornerstone of this policy.  The manual also provides for
the supply of the products concerned to be stopped, after consultation with the national authorities, in
the event of any failure to comply with this “agreement”.  According to the EC, this procedure is
limited in a number of ways:  (i) it covers manufacturing companies only;  and (ii) it does not protect
the huge numbers of occupational users engaged in various activities because manufacturers have nopower of supervision over these individuals. The question also arises as to how this “agreement” is
implemented when chrysotile is exported.  Rigorous implementation should have led to a halt in
Canadian exports of chrysotile asbestos to France because the French manufacturers had not
introduced “made-to-measure” production.  In practice,  there is clearly no way of ensuring that the
Canadian method is actually applied in the importing countries.  The EC state that the available
scientific data show that despite the “safe” use of chrysotile asbestos, exposure entails fatal disease in
a large number of cases.  The data from the United Kingdom indicate a significant excess of deathsfrom lung cancer and mesothelioma, not just among persons employed outside the plants, but also
among persons who started their working lives in plants operating a “safe” use policy after  that policy
was introduced in the United Kingdom in 1969.
3.132 The EC indicate that there are risks associ ated with “safe” use during the manufacture of
asbestos-based products.  Natural asbestos fibre, which is a highly resistant material and has
exceptional insulation capacities, was used in France for a wide variety of industrial purposes from
1945 onwards. The Canadian concept of the “modern use of asbestos-cement” does not reflect
historical reality.  For the past 40 years, the production of asbestos-cement has consisted of
“encapsulating” asbestos in cement, but in the EC’s view this process does not guarantee the safety ofthe product.  When asbestos-cement is used for occupational, para-occupational or domestic purposes,
it is usually sanded, crushed or sawn, thus releasing its carcinogenic fibres into the environment in the
form of dust.  In addition to its use in the asbestos-processing industry (mainly to produce
asbestos-cement), asbestos has been used in a wide range of areas, such as construction (flocking and
thermal insulation of piping), production of a wide range of consumer goods (floor tiles, brake linings,textiles and boards) and heavy industry (shipbuilding,  metallurgy).  The EC contend that the available
scientific studies demonstrate the limits of  “safe” use.  The 1996 HSE
204 study carried out in the
United Kingdom on the cancer risks incurred by asbestos workers after 1969, when the “safe” use of
asbestos was adopted in that country, should be examined in detail.  The EC note that a detailed
analysis of the study is in fact attached to the 1996 report by the Panel of the Royal Society of
Canada, which has been quoted extensively by Canada without acknowledging its source.  However,
the study indicates that, in spite of strictly “controlled” use – because it focuses solely on workers inthe processing industry - there is a significant ne t excess of mesothelioma in workers who operated
solely under conditions of “controlled use”, i.e. after 1969 (when the rules entered into force in the
United Kingdom).  It follows that “controlled” use does not enable deaths from mesothelioma to be
avoided, even in specific manufacturing branches with a limited workforce, which in principle are
easy to demarcate and control.
3.133  According to the EC, “safe” use is not applicable to servicing and maintenance activities, but
mesothelioma fatalities occur mainly among “secondary users” of asbestos.  The aforementioned 1995
study by J. Peto
205 shows that 95 per cent of mesothelioma cases in England and Wales occurred in
occupations not covered by “controlled use” policies.  Also of relevance is the study byM. Siemiatycki,
206 which is never referred to by Canada, even though it was carried out by one of that
country's leading research teams (the one which published the study on women living near asbestos
mines).  Siemiatycki's study in Montreal concentrates essentially on workers exposed when dealing
with asbestos-containing materials.  The study points to a net excess of lung cancer cases and a high
                                                     
204 Hutchings, S., Jones, J., Hodgson, J., Asbestos – Related Disease , Occupational Health Decennial
Supplement, London, Health and Safety Service, 1996, pp. 127-152.
205 Peto, J. et al., Continuing Increase in Mesothelioma Mortality in Britain , Lancet, vol.345, p.535
(1995).
206 Siemiatycki, J., Risk Factors for Cancer in the Workplace , Boca Raton, Florida, CRC press, 1991.WT/DS135/R
Page 59
risk of mesothelioma associated with chrysotile exposure (risk multiplied by a factor of between
4.4 to 14.6).  The worst affected occupations are in the building servicing and maintenance sectors:
plumbers, gas fitters, carpenters and electricians are some of the workers most exposed to asbestos.
These workers are subjected to exposure peaks that are sometimes very substantially above the
current limit values for dust.  For example, a roofing worker using a grinder outside to repaircorrugated roof sheeting made of asbestos-cem ent is subjected to a maximum exposure level of
41 f/ml
207, 410 times in excess of the limit.
3.134 The EC contend that, in a legal framework whic h provides for a total ban on asbestos, the ISO
limit continues to be a useful instrument for protecting the health of workers coming into contact with
asbestos-containing materials.  Such contact is unavoidable, given that millions of tonnes of asbestos
were used in France and are still present in many structures.  However, merely applying the ISO limitdoes not contain the risk, and hence “safe” use is not sufficient.  The ISO 7337 standard referred to by
Canada recommends working methods and tools for cutting asbestos-cement products on-site in such
a way as to keep dust emission levels as low as possible.  The EC note that, when ISO 7337 was
published in 1984, it represented a major step forward in relation to the rules applied prior to that date
but it does not guarantee a sufficient level of protection in terms of the health and safety target(maximum limit of 0.1 fibre/ml) adopted by the vast majority of countries.  For instance, in the case of
a worker using a tool such as a handsaw, application of the ISO standard shows that he is exposed to a
level 30 times in excess of the maximum limit of 0.1 f/ml authorized in France and the United States.
Cutting an asbestos-cement pipe with a jig saw fitted with a dust collection system (as referred to in
this standard) entails exposure of between 7 and 12 times in excess of the maximum limit, whereasmanual tools (hammer, chisel) without dust collection entail exposure 20 times in excess of that limit.
Although the equipment and rules set out in the ISO standard - which is currently being revised - form
the basis of prevention for specialists coming into contact with asbestos-cement materials on-site, they
are inappropriate for do-it-yourself enthusiasts or non-specialists (para-occupational or domestic use).
The EC state that there is a high level of mesothelioma among servicing and maintenance workers.The aforementioned study by Y. Iwatsubo
208, which was conducted in France on individual cases in
the general population (and which covered 405 mesothelioma patients and 389 persons not suffering
from the illness between 1987 and 1993) showed a cl ear increase in the mesothelioma risk among
servicing and maintenance workers.   Even in Canada, the study209 carried out by the Quebec Health
and Safety Commission (CSST) showed that the risk of mesothelioma has increased steadily in
Canada since 1967, essentially among servicing and maintenance workers.  The study points to a
particularly rapid growth in the incidence of this illness in the maintenance sector.  In cases where
exposure had been short-term, servicing and maintenance workers were more numerous than any
other category.  The study also shows that the occurrence of mesothelioma is caused by chrysotile.
3.135 The EC emphasize that “safe” use in the general population at risk is impossible.  Apart from
hundreds of thousands of construction and servicing and maintenance workers, other persons run therisk of inhaling asbestos dust.  Do-it-yourself en thusiasts are a prime example of a section of the
general population at risk.  Exposure is “unwitting” in so far as many of the individuals concerned are
unaware that their activities may expose them to a risk of breathing in asbestos fibres with fatal
consequences.  As Canada points out, materials containing asbestos-cement have the same innocuous
appearance as most of the materials that building workers and do-it-yourself enthusiasts are used tohandling.  The EC point out that Canada describes para-occupational and domestic exposure
situations in the following terms “Thus, in the ey es of the consumer chrysotile-cement products and
fibro-cement products are like products in all aspects, unless a data sheet is available showing which
                                                     
207 Blotière, C., and Huré, P., Travaux sur des matériaux contenant de l’amiante – données
métrologiques, Chimie Info. No.60-11/1998 (source EVALUTIL).
208 Iwatsubo, Y. et al ., Pleural Mesothelioma: Dose-Response Relation at Low L evels of Asbestos;
Exposure in a French Population-Based Case Control Study , American Journal of Epidemiology, 1998.
209 Bégin, R., et al., Work-Related Mesothelioma in Quebec, 1967-1990 , American Journal of Industrial
Medicine 22 :531-542 (1992).WT/DS135/R
Page 60
fibres makes up their composition”.210  Even when they are aware of the risks associated with
asbestos, there is no simple test enabling para-occupational and domestic users to check whether
materials not described as dangerous do in fact contain asbestos fibre.  Under the current rules,
manufacturers are merely required to mark or label the outer packaging of the materials sold.
3.136 The EC conclude that all these data show that  it is extremely difficult to pinpoint the  risks
associated with breathing in asbestos and the use of asbestos products cannot be efficiently controlled.
As the HSC notes in its proposed amendments to the rules introduced in the United Kingdom in 1992,
efficient control of the use of chrysotile asbestos cannot be guaranteed, even at the stage which in
principle is easiest to control, namely production. “Absolute control of the manufacture, and
particularly the use of chrysotile asbestos products can never be guaranteed – some people may
continue to be exposed, unknowingly, to relatively high levels of fibres during the installation,maintenance or removal/disposal of products containing chrysotile asbestos.”
211  Controlled use
procedures cannot be effectively applied to safeguard the hundreds of thousands of persons who are
exposed on a daily basis in industries where health and safety arrangements are minimal, such as the
building industry, which accounts for at least 25 per cent of mesotheliomas.  The 1998 WHO
Environmental Health Criteria 203212 state that “it is proven that the risk is probably higher among
workers in the building industry and perhaps in other industries where asbestos is used”.  Given the
extremely large numbers of persons concerned, the difficulty of assessing the risk, the complexity of
individual and collective protection systems and their negative effect on dexterity, the need to use
special equipment and the overall cost engendered by the requisite arrangements mean that
asbestos-containing materials cannot viably be used in a manner that will protect workers’ healtheffectively.  The EC accordingly consider that the principle of “controlled use” cannot be applied to
the indeterminate risks incurred over the very wide spectrum of occupations where workers come into
contact with asbestos in many ways, in particular in the servicing and maintenance operations for
which “safe” use is not a practicable option.  Without actually specifying them, Canada acknowledges
that “certain uses for which exposure cannot be controlled to an acceptable degree should bebanned”.
213  The EC regret that Canada does not specify these uses nor indicate how frequently they
occur.  In addition, given the population groups exposed unwittingly, it is unacceptable that materials
involving such a high risk should continue to be used in France.  The various international
organizations dealing with the protection of workers against asbestos are well aware of these facts.
3.137 Canada  notes that the EC classify exposures to asbestos into three broad categories, namely:
(i) occupational exposures of workers;  (ii)  para-occupational and household exposures;  and
(iii) environmental exposures.  They group occupational exposures of workers into two sub-
categories, namely "primary" users (e.g. extraction, manufacturing) and "secondary" users
(e.g. construction and maintenance).  According to the EC, para-occupational and household
exposures mainly involve do-it-yourself enthusiasts.  Finally, passive or environmental exposures
result from asbestos dust emitted by a natural source of geologic origin, an industrial point source orby asbestos in place in buildings and various facilities.
214
3.138 Canada contends that current uses of chrysotile asbestos do not endanger human health
because they are now strictly controlled.  These uses include the range of non-friable products where
the chrysotile variety alone is used, to the exclusion of the amphibole varieties (crocidolite andamosite), and in which the fibres are firmly bound physically and chemically to the matrix (cement,
bitumen, resins, plastics, etc.) of the composite (chrysotile-cement, friction materials, etc.).  The
                                                     
210 See paragraph 3.423 below.
211 Proposals for Amendments to the Asbe stos (Prohibitions ) Regulations 1992 , Health and Safety
Commission (1999), p.4.
212 IPCS Environmental Health Criteria (203) on Chrysotile , World Health Organization, Geneva,
1998.
213 See para. 3.122 above.
214 See paras. 3.59 et seq  above.WT/DS135/R
Page 61
French Decree is therefore not necessary to protect health.  According to Canada, the EC do not judge
the concept of controlled use as proposed by Canada.  They judge only one aspect of controlled use,
namely responsible use.215  The EC confuse “controlled use” and “responsible use”.  The responsible
use of chrysotile, to which they refer, is a voluntary self-regulation initiative of Canadian producers
and exporters of chrysotile.  Its objective is to sell chrysotile only to businesses which abide by thenational regulations required to meet the internat ional standards governing the use of chrysotile.
216  
Responsible use is only one component among others of controlled use.  Canada emphasizes that,
contrary to what the EC endeavours to demonstrate, ironically but quite unconvincingly, controlled
use does not require that millions of persons exposed occasionally and unknowingly to emissions of
asbestos dust be equipped with elaborate “space suits.”   Controlled use is a regulatory approach based
on international standards which relies on scientific data applicable to a wide range of hazardous
materials.  According to the principles on which this approach is based, only products and materialsthat can be controlled in such a way that the health  risks are eliminated throughout their life cycle are
permitted.  In the case of chrysotile asbestos, controlled use means the application of appropriate
regulations aimed at limiting exposures to asbestos by banning certain types of asbestos and certain
uses, and prescribing maximum exposure levels as well as work practices and standards.
3.139 Canada points out that the controlled use approach is not a Canadian invention.  It is based on
the principles of controlled use outlined in ILO Convention 162.
217  This provides for protective and
preventive measures against health risks due to occupational exposure to asbestos.  These measures
include:  (i)  making work in which exposure to asbestos may occur subject to regulations prescribing
adequate engineering controls and work practices , including workplace hygiene;  (ii) prescribing
special rules and procedures, including the authorization of a competent authority in the field, for the
use of asbestos or of certain types of asbestos or products containing asbestos or for certain work
processes;  (iii) where necessary to protect the health of workers and technically practicable,
replacement of asbestos by other materials or products evaluated as harmless or less harmful;  and
(iv) total or partial prohibition of the use of asbestos or of certain types of asbestos or productscontaining asbestos in certain work processes.
3.140 According to Canada, Convention 162 clearly lays emphasis on controlled use and not on
banning products. Indeed, the Convention only provides for two specific prohibitions, namely the use
of crocidolite and products containing it and the spraying of all forms of asbestos.
218  The general
responsibilities of governments, employers’ and workers’ organizations concerned, as well as a
national regulatory framework governing safety in th e use of asbestos, are also set out in Convention
162.  National regulations should: (i) establish procedures for the notification by the employer of
certain types of work involving exposure to asbestos; prescribe adequate engineering controls and
work practices to prevent or control exposure to asbestos;  (ii) enforce laws and regulations through
an adequate and appropriate system of inspection, including appropriate penalties;  (iii) prescribe
limits for the exposure of workers to asbestos and make employers reduce exposure to as low a levelas is reasonably practicable;  (iv) measure the concentrations of airborne asbestos dust in workplaces
and monitor the exposure of workers to asbestos at intervals; take appropriate measures to prevent
pollution of the environment;  (v) ensure that employers have established polices and procedures on
measures for the education and periodic training  of workers on asbestos hazards and methods of
prevention and control; (vi) establish standards for respiratory protective equipment and special
                                                     
215 Convention concerning Safety in the Use of Asbestos (Convention 162), adopted on 24 June 1986,
International Labour Organization, Geneva.
216 Canada points out that, moreover, the manual to which the EC refer deals not only with responsible
use but describes controlled use in detail. This manual is intended for producers only and does not mention workmethods at construction sites or for building sub-trades.
217 Convention concerning Safety in the Use of Asbestos (Convention 162), adopted on 24 June 1986,
International Labour Organization, Geneva.
218 Id., Article 11;  Recommendation concerning Safety in the Use of Asbestos (Recommendation 172,
adopted on 24 June 1986, Geneva) Article 18.WT/DS135/R
Page 62
protective clothing for workers;  (vii) recognize contractors qualified to carry out the demolition of
plants or structures containing friable asbestos insulation materials, and removal of asbestos from
buildings or structures; (viii) ensure that workers who are or have been exposed to asbestos are
provided with free medical examinations to supervise their health in relation to the occupational
hazard; and (ix) prescribe adequate labelling of containers, including material safety data sheetsindicating the asbestos content, the health risks and the appropriate protection measures concerning
the materials or the product.  Convention 162 is supplemented by the Recommendation concerning
Safety in the Use of Asbestos (Recommendation 172), which, in substance, repeats the content of
Convention 162 and outlines a set of minimum work standards.
219  
3.141 Canada notes that the ILO’s Code of Practice on Safety in the Use of Asbestos is intended for
all those who are responsible, in the public or private sector, for ensuring the safety of workers whenasbestos is used.  It is not intended to replace national legislative or regulatory provisions nor
applicable standards, but to serve as a guide for the formulation of similar provisions, in particular for
authorities and government agencies, specialized agencies as well as businesses and health and safety
committees.  This Code of Practice aims to:  (i)  prevent the risk of exposure to asbestos dust at work;
(ii) prevent the harmful effects of exposure to asbestos dust on the health of workers;  and(iii) indicate reasonable and practically feasible methods and techniques to reduce occupational
exposure to asbestos dust to a minimum.
220
3.142 Canada indicates that Standard ISO-7337 expressly discourages the use of certain high-speed
cutting tools that are not vacuum-equipped and produce excessive quantities of suspended fine dustthat can also contain respirable asbestos fibres.  France’s member committee approved this
Standard.
221
3.143 Canada points out that the use of pre-machined parts and fittings, despite the EC’s opinion, is
not a far-fetched or utopian solution.  According to OSHA: “pre-cut, pre-tapped pipe has receivedtremendous marketplace acceptance and represents a large majority of sales.  [...] This is significant
because the use of pre-cut, pre-tapped pipe may reduce or eliminate some types of field fabrication
activities.”
222   As a result of pre-fabrication, pre-machining, the use of fittings and compliance with
work standards, the amount of handling and working of asbestos-cement products is very limited.
The ISO has also formulated Standard ISO-14001 - Environmental Management Systems –
Specifications and Guidelines for Use.223  The ISO accreditation of a business confirms that it
complies with national environmental standards.  Fo r instance, if the environmental standards specify
a maximum rate of emission of fibres in the air, Standard ISO 14001 is a guarantee of compliance
with these standards by the accredited business.  In Canada’s view, this is a concrete way of
guaranteeing that national standards are observed.
3.144 Canada emphasizes that the practice of controlled use to regulate asbestos, including
chrysotile asbestos, is therefore based on well-establ ished international principles.  First of all, the
permitted uses are based on the varieties of fibre.  A clear distinction is made between chrysotile and
amphiboles, with certain amphiboles being banned.  Secondly, the permitted uses are based on the
fixation of the fibres in a binder in such a way that chrysotile asbestos dust cannot be released as a
result of normal wear on the product.  Almost everywhere, controlled use includes measures such as a
                                                     
219 Recommendation concerning Safety in the Use of Asbestos (Recommendation 172, adopted on
24 June 1986, Geneva).
220 Code of Practice on Safety in the Use of Asbestos , International Labour Organization, Geneva,
1984.
221 International Organization for Standardization, Standard ISO-7337.
222 See OSHA, on-line: OSHA:<
http://www.osha-slc.gov/Preamble/AmendAsb_data/ASBESTOS_AB4.html> (access date: 20 June 1999).
223 ISO, Environmental Management Systems – Specifications and Guidelines for its use – Standard
ISO-14001, 1995.WT/DS135/R
Page 63
ban on processes or products that release or are likely to release dust, for example friable low-density
insulation products.  Thirdly, the permitted uses are based on control of the average concentrations of
asbestos fibres in the workplace.  An acceptable limit of 1.0 f/ml or less was recommended by a group
of experts that met in 1989 under the auspices of the WHO.  The use of dust control equipment
combined with the adoption of specific work methods can easily make it possible to meet this limit inmines, processing plants, as well as at the stage of installation of the product, its repair or removal and
disposal of the waste.
3.145 Furthermore, Canada states that controlled use involves the implementation of certain
practices and methods of working with materials containing asbestos.  To be complete, any
regulations based on the principles of controlled use must include appropriate measures and
guidelines for the marking and labelling, transpor t, monitoring of the air, medical monitoring,
monitoring of construction activities and waste disposal.  The WHO recognizes that controlled use is
effective.  In its 1998 study entitled Chrysotile Asbestos , with respect to the controlled use of
chrysotile, the WHO concludes, in the following terms:
“Control measures, including engineering controls and work practices, should be used in circumstances
where occupational exposure to chrysotile can occur.  Data from countries where control technologieshave been applied have demonstrated the feasibility of controlling exposure to levels generally below0.5 fibres/ml.  Personal protection equipment can further reduce individual exposure where engineering
controls and work practices prove insufficient.”
224
3.146 Canada considers that the exclusive use of chrysotile asbestos and the adoption of effective
methods to reduce dust are the best guarantees of protection of the health of workers.  Canada
advocates the controlled use of chrysotile asbestos, relying on scientific research conducted by
recognized experts and international organizations, including the WHO.  In Canada, the hazardousproduct regulations apply throughout the life cycle of  products. More specifically, all activities
involving asbestos – extraction, transport, processing, installation and repair, removal and waste
disposal – are closely scrutinized in order to protect not only the health of the public and of workers,
but also the environment.  In Canada, controlled use has resulted in a ban on friable products
containing any type of asbestos in order to protect the public, and in the adoption of measures toensure the health and safety of workers exposed to asbestos.  The latter measures generally fall under
provincial jurisdiction and, in Quebec, have been instituted mainly through the Regulations on the
quality of the work environment and the Safety Code for the Construction Industry, which are
administered by the Commission de la Santé et de la Sécurité au Travail  (CSST) (Occupational Safety
and Health Board).  These two regulatory texts govern working conditions in chrysotile mines,asbestos product manufacturing plants and businesses specializing in the maintenance and removal of
sprayed asbestos.
3.147 Canada indicates that, in the early 1990s, Quebec lowered the permitted exposure limit for
chrysotile asbestos to 1.0 f/ml, while this limit was set at 0.2 f/ml for crocidolite and amosite.  Theprovince has also banned the use of friable insulating materials, as well as crocidolite and amosite.
225
At the same time, Quebec amended its Safety Code  for the Construction Industry in order to ensure
that workers who have to handle asbestos intermittently on construction sites are adequately
protected.  Subsection 3.23 applies to all construction sites where work that is likely to release
asbestos dust is carried out.  The Code establishes a three-tier classification of work:  (i)  type I jobs 
or low-risk activities, i.e. all work with non-fria ble or high-density products, where the use of hand
tools or vacuum-equipped power  tools can reduce exposures to well below the exposure limit.
Measures must be taken to minimize exposures, prevent the spread of dust and dispose of asbestoswaste;  (ii) type II jobs - or medium-risk activities - involve minor disturbances or removal of small
amounts of friable materials containing asbestos.  For example, when removing pipe insulation,
                                                     
224 IPCS Environmental Health Criteria (203) on Chrysotile , WHO, Geneva, 1998, p.145.
225 Quebec Province – Regulation on the quality of the work environment , L.Q., 1979.WT/DS135/R
Page 64
workers must wear gloves and special protective clothing, as well as a half-face filter respirator;
(iii) type III jobs - or high-risk activities - include large-scale removal of friable asbestos-containing
materials, spray application of sealants to asbestos-containing materials, etc., and require very
stringent workplace practices.  For inside jobs, the ventilation system must be turned off, the work
area totally enclosed and maintained under negative pressure, a decontamination centre constructed,and appropriate personal protective equipment issued to workers.
3.148 Canada explains that, before commencing work  likely to release asbestos dust, the employer
must determine the types of asbestos present in the materials and must also train and inform workers
about the risks, prevention methods and safe work methods.  Regulations have also been introduced in
Canada to address the disposal of asbestos waste.  Provision is made for safe transportation (covered
vehicles, sealed packaging, labelling) and disposal of the waste at approved sites.  For instance, solidwaste containing asbestos is shipped to solid waste disposal or storage sites.  In the case of a sanitary
landfill site, the solid waste is compacted in uniform layers and covered over.  These regulations
apply to friable asbestos waste and not to high-density products.
226  At the federal level, again, the
Hazardous Products Act prohibits the use of asbestos in the following products or applications:
untreated low-quality textile products which can release fibres under normal use; various consumerproducts, such as toys, modelling compounds and low-density jointing compounds; the sale of loose
or raw asbestos to consumers;  all asbestos products destined for application by spraying; and finally,
the use of crocidolite or crocidolite-containing products.
227  Regarding labelling, the Workplace
Hazardous Materials Information System (WHMIS) was introduced under the Federal Hazardous
Products Act.  It requires suppliers of all hazardous materials to provide labels with specificpictograms and warning phrases, along with Material Safety Data Sheets, as a condition of sale and
importation.  WHMIS also requires that workers receive appropriate information and training if called
upon to work with or handle such products.
228  It is crucial to measure the emissions of fibres in the air
in workplaces, to assess the effectiveness of the control methods and to show that the business
complies with the regulations.  The measurement of airborne fibres in the workplace is carried outregularly.
3.149 Canada states that, under the Canadian Envi ronmental Protection Act, regulations have been
established governing stack emissions from asbestos  mines and mills.  An emission limit of 2.0 f/ml
has been established, in addition to appropriate monitoring methods and administrative controls.
229
Quebec legislative and regulatory provisions prescribe standards for atmospheric emissions ofasbestos fibres at all stages of mining operations , including crushing, drying, drilling, storage and
processing, as well as conveyors and transfer points, the loading and unloading of asbestos
concentrates, not to mention the processing and handling of asbestos waste.  In Canada, emphasis is
on compliance with requirements.  Inspection programmes are in place and strict compliance is
monitored so that any necessary legal proceedings can be brought and the maximum penalties
imposed.
3.150 According to Canada, the EC rely heavily on a study by the Health and Safety Executive
(HSE) entitled “Asbestos-related diseases” to which they refer to show that controlled use is not
effective in preventing mesotheliomas and lung cancer among chrysotile-processing workers.  This
study reveals that workers exposed after 1969 have been affected by exposure to asbestos. In 1969,the standard in England was 2 f/ml, but with an upper exposure limit of 12 f/ml at any time.  These
levels are much higher than today, in particular the absolute upper limit of 12 f/ml.  Secondly, the
time required to modernize the obsolete equipment of the period would have to be taken into account.
It was only in 1983 that the standard in England was lowered to 1 f/ml in all circumstances.  In
                                                     
226 Canadian solid waste regulations.
227 Hazardous Products Act , Statutes of Canada, http://canada.justice.gc.ca.
228 Id.
229 Canadian Environmental Protec tion Act and Asbestos Mines and Mills Release Regulations ,
Statutes of Canada, http://canada.justice.gc.ca.WT/DS135/R
Page 65
Canada’s view, the EC wrongly stress the risks of asbestos-related diseases after 10 years of latency in
the group, whose exposure to asbestos would have begun after 1969.  In fact, in this group, an excess
risk of lung cancer, mesothelioma and asbestosis was statistically significant even before the latency
period of 10 years.  This means that the cohort supposedly exposed to asbestos beginning in 1970 was
in fact composed of workers exposed to asbestos prior to 1970 (the explanation advanced by theauthors themselves, p.144).  Therefore, this is not a genuine cohort of workers exposed for the first
time from 1970 onwards.  Furthermore, other risk factors (e.g.: smoking rate of 54 per cent in this
group versus 42 per cent in the reference population) and other factors not comparable between the
cohort and the reference population were already having an impact before the beginning of the
exposures to asbestos reported from 1970 onwards.   Furthermore, notwithstanding the anomalies and
bias cited above, the study cannot constitute a credible test of the Canadian practice of controlled use.
In 1969, the new standards constituted only one step toward controlled use; these insufficientimprovements were far from equivalent to controlled use as proposed 10 years later.  In addition,
although England reportedly decided in 1969 to stop importing crocidolite, it did not decrease its
imports of amphiboles until 1975 and these imports did not cease until around 1979.  Despite all this,
there was nonetheless a statistically significant decrease in the risk of mesothelioma and of other
asbestos-related diseases because of a decrease in exposures and perhaps the cessation (barringexceptions) of crocidolite imports.
3.151 Finally, Canada wonders why the EC do not cite the INSERM data and analyses to illustrate
the trends in France:
“[Tr.] As a result of the reduction in exposure levels to asbestos in recent decades, practically no further
deaths from asbestosis are observed (in the mortality statistics of INSERM in 1990) (INSERM, 1993); 26
deaths from this cause were record ed in France: 24 men and 2 women."230
If these are the results of the reductions in exposure brought about by only a partial application of the
controlled use advocated by Canada, a control similar to that practised in Canada would undoubtedly
yield even more positive results in terms of reduction of disease.  The EC rely on the study by
Siemiatycki to argue that there is a very strong association between mesothelioma and work in the
construction sector.231  According to Canada, the EC misinterpret the results of this study.  The
cancers studied occurred in the early 1980s;  they were therefore induced 20-30 years earlier, i.e. inthe 1950s.  There is absolutely no logical link between these mesotheliomas reported between 1979
and 1985 and the safe use of chrysotile introduced at the beginning of this short period of observation.
3.152 Canada points out that the EC can in no way infer from these results that controlled use does
not work.  Canada notes that the EC start from the assumption that construction work is by natureuncontrollable.  When a study shows an association between mesothelioma and construction or
building sub-trades work, they conclude that this represents an association with an uncontrollable
exposure.  The EC cite a study by Y. Iwatsubo.
232  According to Canada, this study does not support a
relationship between chrysotile asbestos alone and health effects such as a clear increase in cases of
mesothelioma.  This study merely reveals what can happen in the absence of a policy of controlleduse, two of the main components of which are a ban on amphiboles and control of the average
concentrations of chrysotile fibres in the workplace.  This study merely reveals the health effects
arising from an exposure to mixtures of asbestos fibres that is undefined in terms of concentration and
duration.
                                                     
230 INSERM report, p.179.
231 See para.3.133 above.
232 Iwatsubo, Y. et al., Pleural Mesothelioma: Dose-Resp onse Relation at Low Levels of Asbestos;
Exposure in a French Population-Based Case Control Study,  American Journal of Epidemiology, 1998,
vol.148, no.2. See also para. 3.82 above.Peto, J., Continuing Increase in Mesothelioma Mortality in Britain
(1995) 345 Lancet 535.WT/DS135/R
Page 66
3.153 Canada considers that the same comments apply to the study by J. Peto on which the EC rely
to claim that the bulk of mesotheliomas occur in occupations which fall outside the policies of
controlled use.233  Canada cannot agree with the fallacious claim underlying the EC’s argument that
controlled use is not feasible with respect to servicing and maintenance workers. A letter from
researchers in the Netherlands criticizing the article by J. Peto points out that the higher incidence ofmesothelioma in their country has nonetheless stopped rising, even though the controls did not come
into effect until 1977 in the Netherlands, i.e. ei ght years later than in the United Kingdom.  These
authors propose a hypothesis consistent with Canada’s position:
“[…] the exposure of crocidolite asbestos in construction work may have been more extensive in the UK
than the Netherlands.  In our country, mesothelioma incidence is clustered in areas with shipbuilding and
other heavy industry, where crocidolite was used for insulation […] Although we question theprojections of Peto and co-workers, we support th eir statement that too many people are still being
exposed to (crocidolite) asbestos without knowing of it, especially those employed in maintenance and
demolition.234
3.154 Canada notes that the cohort studied by Bégin et al.235, on which the EC base their claim that
the risk of mesothelioma has been increasing regularly, extends from 1967 to 1990, and the authors
indicate 26 years as the average duration of exposure.  Therefore, the cases reported began their
exposure between 1941 and 1964.  This was obviously not a time when controlled use (low exposure
to chrysotile alone) was in effect.  According to Canada, the EC’s inference that exposures to
chrysotile are responsible for the mesotheliomas reported is unjustified and false.  In the database of
the study by Bégin et al., exposures are usually recorded approximately by categories of use;  care
must therefore be taken not to make a too specific and consequently abusive interpretation of thesedata.  On the contrary, this study suggests that mesothelioma strikes workers in the secondary and
tertiary industrial sectors more than workers in the chrysotile mines and mills.  However, several
processing businesses in the Montreal area have used amphiboles and particularly crocidolite in the
past and construction, sub-trades and insulation workers have been exposed to friable products which
very frequently contained amphibole asbestos.  Furthermore, the data for Quebec are only reliablesince 1984; before this date, the incidence of mesothelioma was considerably under-estimated,
resulting in an upward bias in the incidence of mesothelioma during the 1970s and 1980s.  Canada
considers that the EC’s interpretation of the Bégin study is incorrect.  The data from this study
corroborate the existence of a risk of mesothelioma in occupations in the secondary and tertiary
sectors more exposed to amphiboles, but they cannot in any way specifically “incriminate” chrysotileand its current uses.
236
3.155 Canada contends that controlled use in the extraction and processing industries is feasible.
The EC have admitted that the control of dust emissions in extraction and processing plants, as well as
in plants producing chrysotile-based materials, is effective in controlling the risk of contracting adisease attributable to exposure to asbestos.
237  Canada points out that the EC have backed away from
their position in this dispute, but this position is quite simply unfounded.  In most countries, the
processing of chrysotile fibre takes place in highly automated plants, in which very strict control and
health measures are applied.  These measures include proper work and maintenance methods,
appropriate ventilation and dust control systems, as well as information and training for workers.According to the WHO, there is no risk in the extraction and processing industry:  “The overall
relative risks for lung cancer are generally not elevated in the studies of workers in asbestos-cement
                                                     
233 Peto, J., Continuing Increase in Mesothelioma Mortality in Britain  (1995) 345 Lancet 535.
234 Weill, H. and Hughes, J., Letter to the Editor:  Mesothelioma .
235 Bégin, R., et al., Work-Related Mesothelioma in Quebec, 1967-1990 , American Journal of Industrial
Medicine, 1992, 22 :531-542 (1992).
236 McDonald, J.C., McDonald, A., Work-Related Mesothelioma in Quebec, 1967-1990,  American
Journal of Industrial Medicine, 1993, 24:245.
237 European Commission (G. Lohan, DG III), European justification for Decree No.96-1133 to the
Canadian authorities (15 April 1997 following the French notification G/TBT/Notif.97.55).WT/DS135/R
Page 67
production and in some cohorts of asbestos-cement production workers.”238  With respect to emissions
from crushing in mills, it adds:  “In well-controlled mills, this is largely confined in the mill building,
and presents low emissions because the mill air is collected and ducted through control devices.”239   
3.156 Canada notes that statistics exist indicating that controlled use is effective.  The data collected
and compiled by the Asbestos International Association in 1995 cover 28 countries where
approximately 25,000 workers are employed.  In thes e countries, 87 to 99 per cent of the workers are
exposed to levels of less than 1.0 f/ml.240  In Quebec, the exposure values at raw material extraction
sites and in plants which separate chrysotile asbestos fibres from the raw material have declined by an
average of 16 f/ml to less than 1 f/ml following the application of control measures, such as technical
processes, since 1973.241  Canada contends that controlled use is also effective in the processing
industry.  Technical processes can be adopted in chrysotile-cement plants.  These processes involve,inter alia , dust emission control and confinement.  In chrysotile-cement plants, several operations,
such as the internal machining of fittings for ex ample, can be performed in such negative pressure
enclosures.
3.157 According to Canada, it is essential to stress the latency period in order to assess the effects
attributed to exposure to asbestos.  The effects reported today reflect the circumstances of
uncontrolled exposure which prevailed more than 20 or 30 years ago, and absolutely cannot be used
as evidence that effective control (low exposure) of current uses of chrysotile asbestos (excluding
amphiboles) is impracticable and solves nothing.  G. Berry and M.L. Newhouse conducted a mortality
study (1942-1980) in a plant producing friction materials where chrysotile asbestos was used almostexclusively.  Compared to national mortality rates, the authors did not observe any excess mortality
due to lung cancer, cancer of the digestive tract or any other cancer.  The exposure rates were low,
and only 5 per cent of the workers had accumulate d 100 fibres-years/ml.  The authors stated that the
experience accumulated at this plant over a 40-year period showed that chrysotile was not associated
with any apparent excess mortality.
242   The extension of the study over a period of seven years
enabled the authors to confirm that there was no excess mortality due to lung cancer or other tumours
associated with asbestos or to chronic pulmonary diseases.  After 1950, air quality control measures
were gradually improved in this plant, and since 1970, the concentrations of asbestos have not
exceeded 1.0 f/ml.  The authors conclude as follows:  with proper control measures of the ambient air,
it is possible to use chrysotile in the manufacturing industry without causing excess mortality.243
3.158 Canada also refers to a study by J. Peto:  “Only a few (5 per cent) of British mesotheliomadeaths were among workers in regulated occupations”.
244  When the latency period is considered,
these deaths are due to the regulations in the 1960s.  The authors of another study followed
1,970 workers at an asbestos-cement plant where chrysotile was used exclusively and examined their
mortality data.  They did not note any significant elevation of the standardized mortality ratio for the
causes of death examined, i.e. all causes, all cancers, lung cancer and pleural cancer and cancers ofthe digestive tract.  The authors conclude that the general findings of this mortality study suggest that
the workers at the chrysotile asbestos-cement plant studied did not face an increased risk with respect
to total mortality, mortality due to all forms of cancer, lung cancer and bronchial cancer or to cancers
                                                     
238 IPCS Environmental Health Criteria (203) on Chrysotile , WHO, Geneva, 1998, p. 8.
239 Id., p.24.
240 Pelnar, V., Further Evidence of Nonasbestos-Related Mesothelioma:  a Review of the Literature,
14 Scandinavian Journal of Work, Environment and Health, 1998, p.141.
241 L’évolution des taux d’empoussièrement dans les mines du Quèbec , in L’amiante chrysotile , un
aperçu, Institut de l’amiante, Montreal.
242 Berry, G. and Newhouse, M.L., Mortality of Workers manufacturing Friction Materials Using
Asbestos,  40 British Journal of Industrial Medicine, 1983, p.1.
243 Newhouse, M.L. and Sullivan, K.R., A Mortality Study of Workers manufacturing Friction
Materials:  1941-86,  46 British Journal of Industrial Medicine, 1989, p.176.
244 Peto, J. et al. , Continuing Increase in Mesothelioma in Britain,  345 Lancet, 1995, p.535, cited in
IPCS Environmental Health Criteria (203) on Chrysotile , WHO, Geneva, 1998, p.123.WT/DS135/R
Page 68
of the digestive tract.245  In another study of 5,645 wo rkers at an asbestos-cement plant, in which the
authors did not find any increase in mortality resulting from exposure to chrysotile asbestos over a
20-year period at exposure levels equal to or less than 100 mppcf x years (which corresponds to
approximately 15 f/ml x years).  The authors state that the demonstration that cumulative low and
short-duration exposures did not result in a detectable excessive risk of respiratory cancer could serveas a basis for the development of regulations, because these data make it possible to state that there
are low degrees of exposure which are not associated with a demonstrable increase in risk.
246
3.159 Canada mentions a cohort study of 1,176 workers at a Swedish plant producing
asbestos-cement containing chrysotile, which did not show any excess mortality associated with
exposures of approximately 10 to 20 fibres/ml x years.247  In another cohort study, this time of a group
of 2,167 workers between 1941 and 1983, the authors did not observe any excess incidence of lung
cancer or any other excess mortality associated with asbestos at average fibre concentrations of less
than 1 f/ml, although the concentrations were probably higher in certain areas of the asbestos-cement
plant.248  Finally, the McDonald study examined what is undoubtedly the largest cohort of asbestos
workers ever studied and followed over the longest period, namely the cohort of miners and plant
workers at chrysotile mines in Quebec.  This study was initiated in 1966 and includes 11,000 workersborn between 1891 and 1920 who have been followed  since its inception.  The researchers made
optimal use of all the available measurements of dust concentrations to assess the exposure of each
member of the cohort in terms of duration, intensity and period during which this exposure occurred.
The mortality data have been published on five occasions, and there is a recent report updating the
results of the mortality analysis for the period 1976-1988 period inclusive.  One of the main findingsof this update is that for several narrow exposure categories of up to 300 mppcf x years, the
standardized mortality ratio for lung cancer was around one, with no perceptible trend, and increased
significantly above this level of exposure.
249  More recently, the same authors again updated their
results, this time on a group of 9,780 men followed until 1992.  The results for exposures of less than
300 mppcf x years, which is equivalent to about 900 f/ml x years – or 45 f/ml for 20 years – promptthe authors to conclude that, from the standpoint of mortality, exposure in this industry to less than
300 mppcf x years has been essentially harmless.
250  With respect to the current exposure levels to
chrysotile permitted or recommended and the hesitations one might have to convert mppcf to f/ml,
even by applying a prudent conversion factor of  1 mppcf = 3 f/ml, the studies cited previously,
including the recent updates, constitute a strong argument in favour of the recommendation by the
WHO group of experts of an exposure limit value of 1 f/ml for chrysotile asbestos.
3.160 Canada claims that controlled use is effective on construction sites.  However, this in no way
alters the fact that there are large quantities of amphiboles and friable materials on construction sites.
Certain precautions must be taken during the installation of slabs on construction sites and the burying
of chrysotile-cement pipes.  When, despite pre-machining and the use of fittings, it is necessary to
handle and work with asbestos-cement materials, precautions must be taken.  On the other hand,studies have shown that exposure levels can be maintained well below 1 f/ml if proper work methods
                                                     
245 Thomas, H.F. et al. , Further Follow-Up Study of Workers from an Asbestos-cement Factory,
39 British Journal of Industrial Medicine, 1982, p.273.
246 Weill, H., Hughes, J. and Waggenspack, C., Influence of Dose and Fibre Type on Respiratory
Malignancy Risk in Asbestos-cement Manufacturing,  120 American Review of Respiratory Disease, 1979,
p.345.
247 Ohlson, C.-G. and Hogstedt, C., Lung Cancer among Asbestos-cement Workers. A Swedish Cohort
Study and a Review,  42 British Journal of Industrial Medicine, 1985, p.397.
248 Gardner, M.J. et al. , Follow up Study of Workers manufac turing Chrysotile Asbestos-cement
Products  (1986) 43 British Journal of Industrial Medicine 726.
249 McDonald, J.C. et al. , The 1891-1920 Birth Cohort of Quebec Chrysotile Miners and Millers:
Mortality 1976-88, 50 British Journal of Industrial Medicine, 1993, p.1073.
250 The results were published in Liddell, F.D.K., McDonald, A.D., McDonald, J.C.,  The 1891-1920
Birth Cohort of Quebec Chrysotile Miners and Millers : Developments from 1904 and Mortality to 1992,
41 Annals of Occupational Hygiene, 1997, p.13.WT/DS135/R
Page 69
are followed.  Similarly, according to Canada, th e application of simple work methods that do not
generate dust will protect employees during the removal of chrysotile-cement.  According to the
WHO, it is friable materials that pose a problem:  “Some asbestos-containing products pose particular
concerns and chrysotile use in these circumstances is not recommended.  These uses include friable
products with high exposure potential”.  However, Canada notes, the controlled use which the ECclaim is too difficult is associated with the use of friable materials, not with the current uses of
chrysotile.
3.161 Canada states that the typical exposure levels for various operations performed with low-
speed hand tools during the installation of chrysotile-cement products are essentially below 0.1 f/ml
and differ significantly from those the EC mention with respect to the application of Standard
ISO-337, which they severely criticize.  They consider this standard inadequate to guarantee asufficient level of protection in light of the health objective (limit of 0.1 f/ml) adopted by France.
Firstly, based on the rates of dust emission mentioned above, the exposures in many operations
remain below the limit of 0.1 f/ml.  Secondly, the limit adopted by some countries is lower than that
proposed by the WHO.  While it is the prerogative of each country to adopt the values it chooses, it
does not follow that the higher rates of asbestos dust produced by using certain tools createcircumstances of exposure in which workers do not benefit from adequate protection.  Also, in cases
where exposure rates are higher than the limit of 0.1 f/ml, these rates nonetheless remain well below
the value of 1 f/ml suggested by the WHO to guarantee a sufficient level of health protection of
workers.  In conclusion, Canada points out that, after a presentation of the exposure data concerning
the application of Standard ISO-7337, which gives rise to some confusion, the EC recognize that theequipment and the rules outlined in Standard ISO-7337 “form the basis of prevention for specialist
workers coming into contact with asbestos-cement materials on-site […]”.
3.162 Canada does not agree with the EC’s claim that France cannot protect servicing and
maintenance workers from exposure to asbestos.  This category includes building carpenters,plumbers and electricians.  This claim ignores the fact that it is past uses, particularly sprayed-on
applications of asbestos (notably amphiboles), that are the cause of the health problems attributable to
asbestos in France.  That is the conclusion of several epidemiologists, including Dr. Camus, in whose
view:
“In the industrialized countries, friable asbest os products inherited from the past represent  by far 
the greatest potential for exposure and risk today and in the decades to come.  In comparison, the
potential for exposure to new chrysotile products composed of rigid matrices (mainly cement) seems to
be very low and much easier to control.  Prevention efforts must therefore focus on the actual risk of
asbestos products in place.”251 (WTO translation)
3.163 According to the WHO in 1998:
“Data from industries where control technologies ha ve been applied demonstrated the feasibility of
controlling exposure levels generally below 0.5 f/ml.  Personal protective equipment can further reduce
individual exposure where engineering controls and work practices prove insufficient.”252
3.164 Canada shares the view that construction workers who work with the parts of buildings
containing sprayed-on asbestos are likely to be exposed to asbestos.  However, the ban on chrysotile
asbestos and the Decree do not alter this situation in any way.  The exposure of these workers to
asbestos is the consequence of past products and uses, which are prohibited today.  The circumstances
of workers who work with the parts of buildings containing sprayed-on asbestos cannot be compared
in any way with the conditions of servicing and maintenance workers who handle asbestos-cement
                                                     
251 Camus, M., L’amiante et les risques pour la santé , April 1999, pp.9 and 10.
252 IPCS Environmental Health Criteria (203) on Chrysotile , WHO, Geneva, 1998, p.144.WT/DS135/R
Page 70
products.  Canada considers that the EC and France cannot use studies or findings concerning the
former to justify measures intended to protect the latter.
3.165 With regard to controlled use and do-it-yourself enthusiasts, Canada considers France’s
concerns to be unfounded for four reasons.  First of all, Canada wishes to point out that the EC havenot established that intermittent exposures to chrysotile fibres, even at high concentrations, would
create a detectable health risk.  Secondly, this concern is based on a false perception, that the cutting
of high-density non-friable materials containing chrysotile releases large quantities of chrysotile
fibres.  In fact, even using tools that are not recommended by the guides on safety in the use of
asbestos, such as high-speed power tools, the dust emitted contains only a tiny quantity of respirable
chrysotile fibres.  Thirdly, most of the chrysotile fibres that are released following the use of high-
speed saws have been chemically altered.
253  They have a different form in terms of structure and
chemical composition.  For this reason, they are less hazardous.  The same is true of the dust released
following the abrasion of chrysotile-based resin or plastic products:  this dust contains tiny quantities
of chrysotile fibres.  Fourthly, cutting any cement material using inappropriate tools such as a high-
speed saw releases silica and quartz.  Silica is a group 1 type carcinogen according to the IARC
classification.  The risk incurred by a person who cuts a cement pipe depends on the tool used (high-speed power tool for example) and not on the presence of chrysotile fibres in the cement.  Whether or
not chrysotile is present, the person should wear an appropriate mask or use the appropriate tools such
as hand tools or low-speed power tools producing coarse dust or chips.
3.166 Canada considers that the codes of practice intended for all those who are responsible for
ensuring the safety of workers when chrysotile asbestos is used and recommended by the ILO or the
ISO also support the position that the handling of products in which chrysotile fibres are solidly set in
a binder does not expose workers or do-it-yourself enthusiasts to asbestos dust which presents a
detectable risk to their health.  Unlike professionals, private individuals are likely to work with
chrysotile-cement products only very sporadically.  According to Canada, the exposures received by
these weekend do-it-yourself enthusiasts will only be a fraction of those received by professionals.
Consequently, if professionals who work with chrysotile-cement products on a daily basis are not
subject to any detectable risk, then logically the risk  for private individuals will be even less.  Private
individuals will generally not carry out heavy opera tions such as sawing, sanding or demolition of
materials.  Do-it-yourself enthusiasts will rather perform light work occasionally, for example, drilling
a hole to run a cable.  Finally, if he works with cement products, whether containing chrysotile or not,
a do-it-yourself enthusiast will have to follow simple protection methods, if only because of thepresence of other carcinogenic materials such as crystalline silica.
3.167 Canada disagrees with the EC’s assertion that the overall costs of the measures necessary to
ensure effective control of the uses of asbestos are such that the use of asbestos-based materials  in
conditions that would effectively protect the health of workers  is not viable.  Most of the measures
necessary to implement effective control of applications of asbestos do not entail exorbitant costs.
Even if the measures required to control the applications of asbestos should in practice prove too
costly, Canada maintains that the economic agents should then be allowed to make the decision to
choose the controlled use of chrysotile or the use of substitute fibres or products.
3.168 In conclusion, Canada states that effective protection measures for extraction and processing
workers have existed since the 1970s.  The methods used for this purpose involve relatively simple
technologies, such as increased ventilation of work areas, more effective filtration of air containing
dust, grinding and processing operations under ne gative pressure to prevent dust from escaping,
exhaust hoods in the workstations directly exposed to fibres, wet-process manufacturing techniques
and the mechanization of processes.  Workers in the construction, servicing and maintenance sectors
are occasionally exposed to friable asbestos products (of all varieties) in the course of their
occupational activities.  It should be recalled, however, that friable products are not the subject of the                                                     
253 See para.3.51 above.WT/DS135/R
Page 71
present debate.  Workers exposed to peaks have a lifetime risk of approximately 20 to 300 per million,
which is an “undetectable” risk, i.e. a risk which cannot be demonstrated or measured empirically.254
Canada maintains that the controlled use of chrysotile asbestos and of current products is possible forall occupations, even those where workers may occasionally be exposed.  It is a matter of enforcing an
appropriate framework of use, in the same way as for numerous other hazardous substances used inthe workplace.
3.169 The European Communities  assert that the so-called “safe” use is ineffective and
inapplicable.  Attempts to make “safe” use of asbestos concern only a small number of jobs.  Canada's
attempt to establish a “safe use” policy is based on “at-source” controls consisting, in particular, of an
agreement between the producer-exporters of chrysotile asbestos and the manufacturers of products or
materials containing chrysotile.  This agreement provides for the transmission of information on therisk and the means of protection to be used by produ cer-exporters of raw asbestos.  It also provides for
an undertaking on the part of the manufacturers to inform their employees of the risks associated with
inhaling asbestos and to provide the indispensable collective and individual protection equipment.
This “understanding” covers only the relatively small asbestos manufacturing sector and presupposes
the voluntary participation of the industry.  Subsequently, the asbestos-containing products andmaterials are widely distributed among a very extensive range of users for installation in buildings,
industrial plants and vehicles.  The installers are professionals assumed to be aware of the risks or
occasional professional or non-professional users who may be totally unaware of the risks.  Any
warnings about the presence of asbestos and the risks associated with using the product (labelling,
notices, etc.) have disappeared by this stage, in which the products and materials have already beenunpacked and installed (for example, a painted sheet of asbestos-cement in a building or a gasket in an
engine).
3.170 According to the EC, “safe use” cannot be appl ied in the servicing and maintenance sectors.
During the entire life cycle of an asbestos-containing product or material in a building, factory orvehicle, servicing and maintenance will be required and the workers are liable to be seriously
exposed, throughout their working life, to risks of which they are unaware.  Building and industrial
maintenance workers constitute a group with high exposure to the risk of mesothelioma and lung
cancer.  In France, there are several hundred thousand of these workers spread over a wide variety of
sectors (metallurgy, construction, vehicle repair, etc.), whereas before asbestos was banned the
workers employed by enterprises engaged in the primary processing of raw asbestos into materials -
those supposed to be sufficiently well informed to  be able to control the risk - numbered less than
1,500.  Servicing and maintenance workers may be frequently and unwittingly exposed to peaks of
exposure several hundred times higher than the exposure limit established in France, as in many other
countries:  dry-cutting asbestos-cement generates 41 fibres/ml, or 410 times the limit value.
3.171 The EC point out that, as Canada indicates, the ISO 7337 standard proposes preventive
measures (moistening of the material or dust extraction) and recommends the use of hand tools or
low-speed tools with a view to limiting fibre emis sion.  These practices are also recommended by the
public health authorities in many other countries to limit the exposure of those required to work on-
site with materials known to contain asbestos.  The large volume of metrological data recorded at
work stations at which such equipment is used, including on asbestos-cement, shows that therecommendations of ISO 7337 are inadequate and that the exposure threshold, which itself does not
provide absolute protection, is almost always exceeded, the levels being 30 times the limit value for a
                                                     
254 CONSAD Research Corporation, Economic Analysis of the Proposed Revisions to the OSHA
Asbestos Standards for Construction and General Industry, Washington, D.C.:  OSHA, United StatesDepartment of Labor, 1990;  Health Effects Institute-Asbestos Research, Asbestos in Public and Commercial
Buildings:  A Literature Review and Synthesis of Current Knowledge, Final Report , Cambridge, MA., Health
Effects Institute-Asbestos Research 1991, pp.4-74.WT/DS135/R
Page 72
handsaw and five to 12 times the limit value for a jig saw with dust extraction.255  Numerous data
documenting this finding can be found in the international scientific literature.256  In most servicing
and maintenance situations, because of time and ergonomic constraints, the specialized tools
recommended by ISO 7337, which are often heavy and take a long time to set up, are not used (for
example, when a hole is to be cut in an asbestos-cement roof, the tool might have to be connected to acumbersome dust extraction system or a remote water supply network).  Thus, the rules of “safe use”
cannot be effectively applied on the scale of the hundreds of thousands of people daily exposed to
asbestos in sectors as difficult to regulate from the standpoint of occupational health as the
construction sector, which generates at least 25 per cent of the cases of mesothelioma.
3.172 The EC point out that all the scientific data available show that the “safe” use of asbestos
cannot prevent large numbers of deaths from mesothelioma or lung cancer, neither in the confinedsector of asbestos-containing material production nor  in the highly dispersed sectors of construction,
servicing and maintenance, and demolition.  In particular, the Health and Safety Executive (HSE)
study, carried out in the United Kingdom on a popul ation of asbestos-processing workers rigorously
subjected to the rules of “safe use” since 1969, shows that the application of these rules cannot
prevent a significant excess of mesotheliomas, ev en in a sector seemingly easy to manage and
supervise (involving fixed work stations in a factory environment).
257  The studies already mentioned
by J. Peto258, Y. Iwatsubo259 and the CSST260 (Commission de la Sécurité et de la Santé au Travail ) in
Quebec stress the seriousness of the risk for servicing and maintenance workers and indicate an
abnormally high level of mesotheliomas in these occupations.  The Canadian study shows that in
Canada the risk of mesothelioma has been increasing  steadily since 1967 and that the increase in the
incidence of this always fatal disease has been particularly rapid in the servicing and maintenance
sector.  Thus, the limitations of all the various attempts to make “safe” use of asbestos have now been
revealed and the serious public health failures to which they have led can only be checked by
completely halting the spread of the risk.
6. Substitute fibres for chrysotile
3.173 Canada points out that, due to the versatility of chrysotile, there exist more than
150 substitute fibres. These substitutes reproduce, for certain specific uses, the thermal resistance,
reinforcement capability, chemical resistance and even the acoustical and thermal insulating
properties of chrysotile. The most common substitute fibres are aramid fibres, polyvinyl alcohol
(PVA) fibres, cellulose fibres, glass fibres, ceramic fibres, rock wool and wollastonite.261  The
                                                     
255 Blotière, C., Huré, P., Travaux sur des matériaux contenant de l’amiante – données métrologiques ,
Chimie Info no. 60-11/1998.
256 Tossavainen, A., Some Comments on the First Written Submissi on by Canada, dated 26 April 1999,
in the Case “Communautés européennes – Mesures concernant l’amiante et les produits en contenant”, 22 June
1999.
257 Hutchings, S., Asbestos-Related Disease , Occupational Health Supplement, London, Health and
Safety Executive, 1996, pp.127-152
258 Peto, J. et al. , Continuing Increase in Mesothelioma in Britain,  vol.345, Lancet, 1995, p.535.
259 Iwatsubo, Y. et al., Pleural Mesothelioma: Dose-Resp onse Relation at Low Levels of Asbestos;
Exposure in a French Population-Based Case Control Study,  American Journal of Epidemiology, 1998,
vol.148, no.2.
260 Bégin, R., et al., Work-Related Mesothelioma in Quebec, 1967-1990 , American Journal of Industrial
Medicine, 1992, 22 :531-542 (1992).
261 See Cossette, M., Substitutes for Asbestos , (December 1998) on the technical properties of the main
fibres used to replace chrysotile. The paper also deals with substitute products for products based on chrysotilefibre and notes certain undesirable environmental consequences related to the manufacture of the substitute
products. Finally, the paper delves into the economic, energy policy and safety considerations related to the use
of substitute fibres and products. See also Anderson, A., Fibers in Friction Materials , (December 1998).
A. Anderson is the chairman of the sub-committee on health and the environment (Brake Committee) of theSociety of Automotive Engineers and was formerly responsible for friction materials at the scientificlaboratories of the Ford Motor Company.WT/DS135/R
Page 73
prohibition of chrysotile and the conversion to substitute fibres and fibro-cements have caused an
increase in the use of substitute fibres. The conversion took place, however, without sufficient risk
analysis. The still undetectable risk associated with modern uses of chrysotile has been replaced by
the unknown risks associated with the use of substitute products . Moreover, the use of substitute
fibres contributes to an increase in risks associated with products containing substitute fibres that areof lower quality in terms of their physical, chemical and mechanical resistance.
262  The decision to ban
chrysotile was announced the day after the publication of the summary of the INSERM report. In this
report, however, the authors admitted that they did not investigate the risks posed by substitute fibres
and concluded:
 “Although, because of the time limit given to it, the group did not wish to take up the question of
substitute fibres, the lack of epidemiological data concerning their harmlessness in the long term cannot
hide the findings reached in experimental systems, which show the capacity to cause pathological
modifications.  Appropriate research should be carried out and developed as a matter of urgency before
use of substitute fibres becomes general.”263 (WTO translation)
3.174 Canada claims that there has been a total conversion to substitute fibres, despite INSERM’s
formal warning. It was not until June 1998, one and a half years after the adoption of the Decree, thatthe Executive Summary – and not the full report – of another INSERM study, on substitute fibres, was
published.  In the Executive Summary, it is acknowledged that:
“Fibres on which very few toxicological data exist are today being used … on a large scale as a
replacement for asbestos;  the novelty of their use for such applications is accompanied by a lack ofdata on their potential effects on human health.”
264 (WTO translation)
3.175  From the beginning, the Executive Summary admits that great vigilance is in order with
respect to the possible effects of using substitute fibres:
“Any new fibre proposed as a substitute for asbestos or for any other use should a priori  be suspected
of being pathogenic because of its structure, although this does not prevent an analysis of the possible
effects of its physico-chemical characteristics.”265  (WTO translation)
3.176  INSERM also stresses that its study is limited to the risks of substitute fibres in the respiratory
system, even though the health risks on the whol e cannot be confined to respiratory ailments:
“This approach is restrictive in the sense that it focu ses in the first place on respiratory diseases.  It can
be seen that dermatosis caused by fibres affects a large number of workers in contact with such
materials … It might be suggested that it would be preferable not to confine studies to the respiratorysystem, particularly because of the development of  vitrous fibres that are soluble in a biological
environment.  Solubilized products may, sometimes, reach other organs.” 
266 (WTO translation)
3.177  Canada points out that the Executive Summary also highlights the differences in the
experimental exposure levels used to evaluate the risks of substitute fibres compared to those for
                                                     
262 Cossette, M., Substitutes for Asbestos , (December 1998) and Anderson, A., Fibers in Friction
Materials , December 1998.
263 INSERM report, p.434.
 264 INSERM, Synthèse – Effets sur la santé de substitution à l’amiante , INSERM joint report, Paris,
1999, p.1 (hereinafter “ Substitutes – Executive Summary”).
265 Id., p.2.
 266 Id.WT/DS135/R
Page 74
chrysotile fibres, even though the modern uses of substitute fibres are similar to those of chrysotile
fibres.267
“It has been noted that, in general, the animals have been exposed to a number of substitute fibres that
is much lower than the level used during experimental exposures to asbestos.  It is likely that similar
concentrations of asbestos fibre would have yielded results that were of little or no significance in
studies of carcinogenicity.”268 (WTO translation)
3.178  Canada indicates that Directorate General XXIV (consumer protection policies) of the
Commission of the EC stated that “for substitute materials (for chrysotile), there is no significant
epidemiology base to judge the human health risks ( ...) hence the conclusion that specific substitute
materials pose a substantially lower risk to human health, particularly public health, than the current
use of chrysotile, is not well founded.”269  Dr. J. M. G. Davis’ paper270, The Biological Effects of
Fibres Proposed as Substitutes for Chrysotile Asbestos: Current State of Knowledge in 1998 ,
conducts a review of the scientific literature on substitute fibres for asbestos and concludes that:
“Replacement is premature in the present state of our knowledge.”271  […] The need for full
toxicological testing of new fibre products is recomm ended before these products are marketed.  [...] It
is of much concern to find that of the three fibre types suggested as chrysotile substitutes, polyvinylalcohol, para-aramid and cellulose, only one type of aramid (Kevlar) has been tested in a way at allclose to what is required.”
272
3.179  Canada considers that France has replaced the undetectable risk associated with modern uses
of chrysotile with the unknown, and perhaps greater, risk associated with the use of substitute fibres
for asbestos.273
3.180  The European Communities  note that the majority of substitute products for asbestos,
particularly chrysotile asbestos, are non-fibrous products, for example, PVC.  Canada never refers tothese products, which competed with asbestos-cement long before the ban.  In France, for example,
the decision to stop production of asbestos-cement pipes was taken by industrialists before the
announcement of the ban because the competition from PVC and ductile iron made this sector non-
viable from the economic perspective.  The main purpose of the policy adopted in France in 1996 is to
replace materials containing asbestos by other harmless materials, particularly non-fibrous materials,
                                                     
267 The full INSERM report entitled Effets sur la santé de substitution à l’amiante was published in
November 1999, i.e. after the parties had presented their written rebuttals to the Panel.  Canada referred to this
report at the second substantive meeting with the parties.  See paras. 3.325-3.327.
268 Substitutes – Executive Summary , p.33.
269Opinion on a study commissioned by Directorate General III (Industry) of the European Commission
on Recent Assessments of the Hazards and Risks Pose d by Asbestos and Substitute Fibres, and Recent
Regulation of Fibres World-Wide  (Environmental Resources Management, Oxford). Opinion expressed on
9 February 1998, European Commission, DG XXIV, 1998, p. 1. 
270 M.A., Sc.D., FRC. Path. (Fellow of the Royal College of Pathology). Davis, J.M.G., The Biological
Effects of Fibres Proposed as Substitutes for Chryso tile Asbestos: Current Stat e of Knowledge in 1998 , 1998
[hereinafter Davis]. 
271 See Davis, p. 1.
 272 Id., p. 6.  Canada notes that the report of the Ontario Royal Commission also cautions against the
conversion to substitute fibres: “We conclude that the health hazards caused by exposure to asbestos fibres
depend very much upon the dimensions of the fibres, and that long, thin, respirable fibres are of primaryconcern. This leads us to be extremely cautious about concluding from the evidence (on) substitute fibres (that
they) will not present health hazards in the future. […] [W]e believe it would be risky to allow the exposure ofworkers to respirable fibres longer than 5 microns, with small diameters, of any material , if those fibres are
likely to be very durable in the lungs” (p.359).
273 Canada notes that the United States Court of Appeal in the matter of the EPA, (see para.3.126
above) rightly emphasized that “Eager to douse the dangers of asbestos, the agency [EPA] inadvertently actuallymay increase the risk of injury”, Corrosion Proof Fittings v. Environmental Protection Agency , (5
th Circuit
1991), p.35.WT/DS135/R
Page 75
for example, by replacing asbestos-cement roofing by galvanized steel or aluminium sheets of an
equivalent size or larger, replacing asbestos-cement pipes by ductile iron or PVC (plastic) pipes.
According to the EC, fibres to replace asbestos can only be used in certain materials if their
harmlessness or their lower level of risk in comparison with asbestos has been irrefutably proved by
the international scientific community.  The risk assessments proposed by INSERM conclude that, forthe various fibres analysed, the risk of cancer is sometimes “plausible” and sometimes “cannot be
excluded”, sometimes “there is no convincing element indicating an excess risk” (WTO
translation)
274;  this is far from the certainties concerning chrysotile, a proven carcinogen according to
all the international authorities.  It can also be emphasized that none of the substitute products for
asbestos is classed in group 1 of the IARC (proven carcinogen for humans).
3.181  The EC indicate that aramid fibres, polyvinyl alcohol (PVA) fibres, cellulose fibres, glass
fibres, ceramic fibres, rock wool and wollastonite are only used as an asbestos substitute in verylimited cases where it is not possible to find a non-fibrous substitute.  For asbestos-cement materials,
which accounted for more than 90 per cent of asbestos use in France, industrialists now use cellulose
fibres (the same as those always used in the paper industry), polyvinyl alcohol and aramid fibres, for
which the available toxicological data are quite reassuring.  According to the EC, it is wrong to state
that “The conversion [from asbestos to substitute fibres] took place without sufficient risk analysis”.None of the substitute products for chrysotile has been classified as carcinogenic for humans at the
international level.  Moreover, the replacement of asbestos by less harmful substitute fibres has been
done in stages and exercising the utmost caution concerning their harmfulness.  The French text
provides for the possibility of requesting waivers from the ban on asbestos whenever there is no
technically comparable substitute that is less dangerous than asbestos.
3.182  The EC point out that the task entrusted to INSERM by the French Government in 1995 was
first to assess the state of scientific knowledge on the risks and dangers of asbestos.  Canada indicates
that only the Executive Summary of the INSERM report on substitute fibres for asbestos was
published in June 1998.  This statement is wrong.  The full text, in the form of a provisional working
document, was published at the same time as the Executive Summary, as was done for the report onasbestos in July 1996.  In order to provide transparency and ensure that the findings - which are
necessarily succinct in a summary document - are based on detailed scientific arguments, it is
INSERM’s policy to provide access to the full text in provisional form (because printing a report in
accordance with the requirements of scientific publications necessarily takes a very long time).
3.183  The EC point out that replacement is a necessity acknowledged internationally.  In 1986, ILO
Convention 162 on asbestos recommended that nati onal legislators should make provision, whenever
possible, for the “replacement of asbestos or of  certain types of asbestos or products containing
asbestos by other materials or products or the use of alternative technology, scientifically evaluated by
the competent authority as harmless or less harmful …” (Article 10(a)).
275  The WHO press release of
26 July 1996276 also states that it is necessary to effect such replacement, including chrysotile.  The
WHO states that “consideration should be given to replacing chrysotile by harmless substitutematerials whenever it is possible to do so”.  In 1998, the WHO report drawn up as part of the
International Programme on Chemical Safety
277 recommended the use of substitute materials where
they are available.  Since 1990, in its framework Di rective on the health and safety of workers, the
European Community has advocated the principle that a dangerous agent or procedure should be
replaced by a harmless or less harmful agent or procedure in so far as one exists.  In the case of cancerrisks, the principle is set out in the Directive on ca rcinogenic agents, which specifically states that a
                                                     
 274 Substitutes – Executive Summary , pp.15-17.
275 Convention concerning Safety in the Use of Asbestos (Convention 162), ILO.
276 WHO press release of 26 July 1996.
277 IPCS Environmental Health Criteria (203) on Chrysotile , WHO, Geneva, 1998.WT/DS135/R
Page 76
carcinogen should be replaced by a less dangerous agent in so far as this is technically possible.278
The EC note that the French Decree contested by Canada in the present case complies with the
recommendations of the ILO and the WHO.  Substitute products can only be used to replace asbestos
if they entail a lower risk for workers according to  current scientific knowledge.  In view of the
proven carcinogenicity of chrysotile and the impossibility of controlling the risk, the French
Government opted to prevent any proliferation of the risk by applying the principle recommended by
the WHO and the ILO and endorsed by the European Union for carcinogenic risks: replacement by a
less dangerous product in so far as this is technically possible.
3.184  The EC point out that the wide variety of substitute products reflects the diverse possible uses
of asbestos. There is no natural or synthetic product with the same set of properties as asbestos.
Accordingly, there is no one substitute for asbestos, but various substitutes which are sometimescombined with each other for certain applications.  When referring to “substitute products”, Canada
appears to be referring solely to mineral fibres, whereas in fact a very wide range of products and
materials is used to replace asbestos.  It goes without saying that the materials obtained after asbestos
is replaced have different physical and mechanical properties from the asbestos-containing material.
As a result, each substitution operation entails careful checks by manufacturers on the properties ofthe new material and, sometimes, a complete redefinition of the product's field of application
(watertight gaskets and braiding, for example).
3.185  The EC explain that these substitute products can be of three types.  Firstly, products which
do not use fibres:  (i) replacement of asbestos-cement pipes by ductile iron or PVC (plastic) pipes,
which were on the market long before France banned asbestos;  and (ii) replacement ofasbestos-cement roofing by galvanized steel or alum inium sheets of an equivalent size or larger.
Secondly, products using fibres shown to be harmless or less harmful:  (i) replacement of asbestos in
cement-fibre materials by cellulose, PVA or aramid  fibres (asbestos-cement accounted for more than
90 per cent of asbestos use in France);  and (ii) replacement of asbestos in friction surfaces (brakes,
clutches) by metal (copper), aramid fibres or granular materials.  Thirdly, products containing lessharmful man-made mineral fibres:  (i) replacement of asbestos in watertight braiding (textile-asbestos)
by glass fibres or rock fibres in most cases, or by ceramic fibres, which are essentially used as a
substitute for amphibole asbestos and for very rare uses (above 1,200°C). The cost of using these
fibres is considerably higher than that of using asbestos (50 per cent  more).
3.186  The EC point out that none of the substitute products for chrysotile is classified as
carcinogenic for humans.  The lower carcinogenicity of the fibres regarded as most dangerous was
already known in France when the decision was taken to ban asbestos.  In the course of discussions onthe eventuality of a ban, the Ministry of Labour asked the Groupe sur la surveillance des atmosphères
de travail (G2SAT), which meets under the aegis of the French Senior Council for the Prevention of
Occupational Risks, to draw up a report usin g existing international data on the comparative
carcinogenicity of asbestos and man-made mineral fibres. The report
279, which was presented in
June 1996, indicates a clear hierarchy in the relative toxicity of substitute fibres.  The results wereconfirmed by a 1997 survey on synthetic mineral fibres carried out by INSERM.  None of the man-
made mineral fibres investigated showed proven  carcinogenicity for humans.  According to this
report, glass wool and slag wool do not cause fibrosis  or cancers in animals;  rock wool only causes
fibrosis in animals and then only at very high levels of exposure.  These fibres are used only for
                                                     
278 Council Directive 90/394/EEC of 28 June 1990 on the protection of workers from the risks related
to exposure to carcinogens at work (Sixth individual Directive within the meaning of Article 16(1) ofDirective 89/391/EEC), OJ L 196, 26.7.1990, p.1.  Council Directive 97/42/EC of 27 June 1997 amending for
the first time Directive 90/394/EEC on the protection of workers from the risks related to exposure to
carcinogens at work (Sixth individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC),OJ L 179, 8.7.1997, p.4.
279 Fibres minérales artificielles et amiante  (summary); INRS, Documents pour le médecin du travail
n°69.WT/DS135/R
Page 77
certain rare applications (watertight braiding as a substitute for textile asbestos);  ceramic fibres cause
cancers and fibroses in animals and have been diagnosed as the cause of pleural plaques in humans.
These fibres are used mainly as a substitute for amphibole asbestos in very restricted and highly
specific cases (temperatures in excess of 1,200 degrees).  The European Community Directive280
relating to the classification of man-made mineral fibres placed mineral wool in category III
(unproven suspicion of carcinogenicity in animals) and ceramic fibres in category II (proven risk for
animals).  The EC point out that ceramic fibres essentially provide a substitute for amphibole asbestos
and their use is strictly regulated (Labour Code, Articles R-231-55 et seq .).  None of the substitute
products for chrysotile is classified as carcinogenic for humans (group 1).  Since it is known that
chrysotile asbestos is classified as a “proven ca rcinogen for humans” (group 1), according to the EC,
there is therefore a clear hierarchy of risk.
3.187 The EC emphasize that there are no data giving rise to concern as to the carcinogenicity of
fibres used as a substitute for asbestos in cement fibres. The findings of the Scientific Committee on
Toxicity, Ecotoxicity and the Environment are unambiguous in this connection.  The SCTEE was set
up by Commission Decision 97/579/EC of 23 July 1997 setting up scientific committees in the field
of consumer health and food safety (Official Journal L 237 of 28 August 1997, p.18).  The SCTEE's
brief is to provide the Commission with high-quality scientific opinions in all cases in which it has to
be consulted.  It may also be consulted on other issues of special relevance to consumer health and
food safety.  Its composition and work are based on the principles of excellence, independence and
transparency.  The SCTEE has examined the comparative carcinogenicity of chrysotile and the main
fibres used as a substitute for asbestos in cement fibres (which accounted for more than 90 per cent ofthe asbestos used when the ban came into force in France).  The investigation focused on cellulose
fibres, para-aramid fibres and PVA.
3.188  The EC indicate that the SCTEE’s
281 findings are unambiguous as to the hierarchy of risks. Its
conclusions are as follows:  (i) the SCTEE notes that the three fibres investigated have been used formany years
282 and yet no worrying data have emerged over this long period as to their
carcinogenicity;  (ii) there is no doubt whatsoever that chrysotile is carcinogenic;  (iii) chrysotile also
causes asbestosis and chronic illnesses, which is not the case for the fibres investigated;
(iv) chrysotile has carcinogenic effects on the lung and causes mesothelioma, whereas there is no
evidence to suggest that para-aramids do so (no long-term research is available for the other two
fibres, but it should be recalled that they have been in use for many years);  (v) predictive studies -
i.e. experimental studies on animals - show that chrysotile has far more substantial and lastinginflammatory and proliferative reactions;  and (vi) the substitute fibres are considerably larger (in
diameter) and have much less fragmentation capacity than chrysotile, which has very high
“fibrillation” (separation of fibres lengthways into even finer fibres).  The result is that the substitute
fibres are far less respirable.  Three interdependent parameters were used to assess the risk associated
with substitute products as compared with chrysotile asbestos:  (i) the dose of fibres in the air: thefibre's diameter determines how long it remains suspended in the air;  accordingly, the smaller the
diameter, the higher the carcinogenic risk;  (ii) the physical characteristics of fibres, in particular their
dimension (diameter and length) and their fragmentation capacity (“fibrillation”);  the greater the
degree of fibrillation, the higher the risk of the fibres being inhaled, and thus the higher the risk of
cancer;  and (iii)  the biopersistence (or “durability”) of the fibre in the lung tissue and inside themacrophages, given that long fibres are eliminated slowly.  It is accepted that a ratio of length to
diameter of more than 3:1 entails a higher risk  of cancer. The SCTEE's study thus concludes that
chrysotile asbestos is present in high concentrations in the air because of its small diameter and is very
easy to inhale because of its high degree of fibrillation. The substitute fibres for asbestos-cement are
                                                     
280 Directive 97/69/EEC, of 5 December 1997.
281 Avis concernant l’amiante chrysotile et les produits de substitution envisageables , Scientific
Committee on Toxicity, Ecotoxicity and the Environment (CSTEE), 15 September 1998.
282 The EC point out that polyvinyl alcohol fibres (PVA) have been used since 1936; para-aramid fibres
have been on the market for about thirty years.WT/DS135/R
Page 78
PVA and cellulose fibres.  Para-aramids are used for other applications (brakes, friction).  These three
types of substitute fibre are the most frequently used.
COMPARATIVE TABLE OF THE CHARACTERISTICS OF FIBRES EXAMINED BY THE SCTEE
Length
(microns)Diameter
(microns)Fibrillation
Chrysotile > 5 < 1 +++
PVA > 5 10 – 16 +/-
Para-aramids > 5 10 – 12 (requires considerable abrasion to produce a
large number of fibrils)
Cellulose > 5 12 – 40 Exposure data suggest that fibril production
is very limited
3.189 The EC note that, from these observations, the SCTEE unanimously concluded that:  (i) there
is sufficient evidence to show that all forms of asbestos, including chrysotile, are carcinogenic;  (ii) on
the other hand, there is no evidence of cancer being caused in humans by fibres of any of the three
substitute products examined;  and (iii) consequently the dangers of chrysotile are probably greater (inthe scientific sense) than those associated with th e substitute fibres examined.  The SCTEE adds that,
in its opinion, no study which might have led it to a different conclusion was omitted from the
examination.
3.190  The EC also note that the findings of the Committee on the Carcinogenicity of Chemicals in
Food, Consumer Products and the Environment (COC)
283 transmitted to the Health and Safety
Executive (HSE) in July 1998 confirm the results of the SCTEE study.  This Committee also
examined cellulose fibres, para-aramid fibres and PVA fibres.  In particular, the COC's work focusedon comparisons between the results of carcinogenicity studies and studies on the physical properties
of fibres (dimensions, fibrillation).  Its conclusions were identical to those of the European
Committee.  In addition, the COC noted that the levels of exposure to those fibres were considerably
lower than those associated with the use of ch rysotile. The COC concluded its study as follows:
“The evidence presented to the Committee on fibre dimensions, studies in animals including that of
biopersistence in the lung, indicate that the carcinogenic risk posed by PVA fibres, p-aramid fibres or
cellulose fibres is likely to be less than posed by chrysotile … Additional reassurance can be gleaned
by noting that these materials are unlikely to form significant amounts of respirable fibres under normalworking conditions and that occupational exposures to these materials will be below the control limitfor chrysotile.”
284
3.191  The EC emphasize that, in France, as in many other countries, manufacturers had for more
than ten years been seeking asbestos-free substitutes which would meet their technical requirements
and would be compatible with their health and safety obligations. In the vast majority of situations,
zero-risk substitution is possible:  either (i) by  using non-fibrous products which are not carcinogenic
(such as plaster for fire protection instead of limpet spraying);  or (ii) by using fibres on which no
worrying data have emerged after decades of use (cellulose or PVA in cement fibres).  Moreover,
replacement by man-made mineral fibres is strictly regulated:  (i) mineral wool (glass or rock fibres),
which have not been proven dangerous even to animals in high doses and which are used for a limited
number of applications (watertight braiding);  these fibres are subject to occupational exposure limitsand to the rules designed to protect workers against chemical risks;  and (ii) ceramic fibres, for which
manufacturers are currently seeking replacements;  these fibres are subject to rules which are even
                                                     
283 Statement for Health and Safe ty Executive (HSE) on Carcinogenic Risks of Three Chrysotile-
Substitutes, Committee on the Carcinogenicity of Chemicals in Food, Consumer Products and the Environment
(COC), July 1998.
284 Id., p.5.WT/DS135/R
Page 79
stricter than those concerning chemical risks.  Under these rules, ceramic fibres must be replaced by a
less dangerous agent wherever technically possible, and their sale to the general public is prohibited.
3.192  The EC point out that exceptions to the asbestos ban are possible where using asbestos is a
safer option.  Manufacturers may qualify for exemption from the asbestos ban where no asbestos-free
substitute performing an equivalent function is available which, on the one hand, represents less of adanger to workers and, on the other, offers users all the technical safety guarantees.  When replacing
asbestos by a substitute material, it is necessary to follow a carefully defined procedure laid down in
the specifications which set out the performance requirements that the manufacturer’s substitute
material must satisfy under very precise conditions of use.  Once selected, the substitute product must
not just be tested but must also undergo feasibility studies over a period of time.  This may take the
form of qualification or approval procedures carried out by domestic or international third parties;
these procedures are lengthy and complex in sectors such as the aerospace, nuclear or chemicalindustries.  The EC also note that the Decree contested by Canada does not make the use of substitute
products mandatory, be they fibrous or non-fibrous.
3.193  In the EC’s view, in many instances it is not necessary to use fibrous substitute products.
Asbestos-cement can be fully replaced by products with no indication of carcinogenicity;  these maybe either non-fibrous products (ductile iron, plastic) or fibrous products (cellulose, PVA).  In the case
of fire protection products, for instance, there is no need to use substitute fibres.  In France, traditional
plaster-based products or hydraulic binders loaded with mineral aggregates such as perlite or
vermiculite have been used to protect concrete or steel structures against fire since 1978 when
flocking was banned.  In practice, manufacturers decide  to use fibrous substitute products only if these
are the sole products offering the requisite technical performances (previously obtained using
chrysotile).  Residual use of asbestos is made on an  occasional, highly specialized basis.  It is most
common in the nuclear, chemical, petrochemical and aerospace industries.
3.194  The EC contend that Canada cannot claim that Decree No.96-1133 is designed to “promote”
domestic substitute products because France records a substantial trade deficit for PVA and
para-aramid fibres.  It should also be noted that PVA fibres are produced in only two plants
worldwide, one in Japan and one in China.  As regards cellulose fibres, the fraction used to produce
fibro-cement is extremely small.  The bulk of the cellulose raw material (94.5 per cent) is used by the
paper industry and the remainder (5.5 per cent) goes mainly to the textile and construction industries.
France imports about 40 per cent of the cellulose it uses, mainly from Canada and the United States.
In 1998, France imported 380,000 tonnes from Ca nada, against 371,000 tonnes in 1997 and
366,000 tonnes in 1996.
285
3.195  Canada  asserts that the undetectable risk associated with current uses of chrysotile has, as a
result of the Decree, been improperly replaced by th e unknown risk of substitute fibres.  At the most,
science indicates that, although certain substitutes can be considered “less harmful” than chrysotile,their harmlessness has not been proved.  Furthermore, the ban on chrysotile promotes a false sense of
security among the population, which is likely to reduce the vigilance of workers, do-it-yourself
enthusiasts and the population in general when chryso tile substitutes are used.  According to Canada,
this is the key issue, i.e. whether the ban on asbestos effectively protects the French population while
restricting international trade as little as possi ble.  The most common chrysotile substitute fibres
include aramid fibres, polyvinyl alcohol (PVA) fibres, cellulose fibres, glass fibres, ceramic fibres,
rock wool, slag wool, glass wool and wollastonite.
3.196  In Canada’s view, nothing is less certain than the “proven” character of the safety or low
toxicity of substitute fibres, as the EC assert.  First of all, the EC stress that substitute fibres “have
been in use for many years”.  Although little accustomed to criticizing others for a lack of historicalperspective, Canada considers that use of approximately 20 years does not constitute “use for many
                                                     
285 Source:  COPACEL and the French customs.WT/DS135/R
Page 80
years” of substitute fibres.  It is sufficient here to refer to the CSTEE (DG XXIV) document, which
speaks more appropriately of a “relatively short”286 period of use extending over “approximately
20 years.”287 Similarly, a working group which reported on substitute fibres to the British Health and
Safety Executive (HSE) noted:
“Carcinogenic risks posed by chrysotile-substitutes and chrysotile cannot be based predominantly on
an epidemiological assessment since substitute fibres have only been used for periods of up to
approximately 20 years.” 288
3.197  Canada notes that INSERM itself warns against the fact that “[Tr.] very few toxicological
data exist”289 on asbestos substitute fibres.  Canada also draws attention to the conclusions of the
CSTEE (DG XXIV), to which the EC refer extensively, with respect to the safety of substitute fibres:
“For substitute materials [to chrysotile], with the exception of vitreous fibres, there is no significant
epidemiology base to judge the human health risks [...] hence the conclusion that the use of specific
substitute materials poses a substantially lower risk to human health, particularly public health, than thecurrent use of chrysotile, is not well founded.”
290
3.198  Canada points out that the CSTEE (DG XXIV) al so states that:  “no epidemiological studies
or observations in humans of the long-term effects of p-aramid or PVA have been reported in the
scientific literature”.291  It goes on to add: “overall, acute and subacute toxicity data on the three
substitute fibres are very meagre and do not allow for a proper comparison with chrysotile”.292  The
WHO, in a study on substitutes published in 1993, which is similar in scope to the 1998 report on
chrysotile, states in conclusion that:
“All fibres that are respirable and biopersistent mu st undergo testing for toxicity and carcinogenicity.
Exposures to these fibres should be controlled to the same degree as that for asbestos.”293
3.199  Canada notes that the Occupational Safety & Health Administration of the United States
Department of Labor underlines the risk of using substitute fibres and products:
“Although the introduction of asbestos substitutes and alternatives enables manufacturers to avoid
contact with asbestos, many of these surrogates pose occupational health hazards of varying
degrees.”294
                                                     
286 Avis concernant l’amiante chrysotile et les produits de substitution envisageables , Scientific
Committee on Toxicity, Ecotoxicity and the Environment (CSTEE), 15 September 1998.
287 Statement for the Health and Sa fety Executive (HSE) on Carcinogenic Risks of Three Chrysotile
Substitutes, Committee on the Carcinogenicity of Chemicals in Food, Consumer Products and the Environment
(COC), July 1998.  Canada points out that the EC use expressions such as “for a very long time”, “long period”and “use for many years”, but these do not appear in the CSTEE text.
288 Id.
289 Substitutes – Executive Summary , p.1.
290 Opinion on a study commissioned by the Di rectorate General III (Industry) of the European
Commission on  Recent Assessments of the Hazards and Risks Posed by Asbestos and Substitute Fibres, and
Recent Regulation of Fibres World-Wide (Environmental Resources Management, Oxford). Opinion expressed
on 9 February 1998.
291 Avis concernant l’amiante chrysotile et les produits de substitution envisageables , Scientific
Committee on Toxicity, Ecotoxicity and the Environment (CSTEE), 15 September 1998.
292 Id.
293 IPCS Environmental Health Criteria (151):  Selected Synthetic Organic Fibres , WHO, Geneva,
1993, p.76.
294 See United States Department of Labor (OSHA), Asbestos - Final Regulatory Impact and
Regulatory Flexibility Analysis , on-line:
OSHA <http://www.osha-slc.gov/Preamble/AmendAsb_data/ASBESTOS_AB4.html> (access date:
22 June 1999).WT/DS135/R
Page 81
3.200  Canada asserts that, not only is the safety or low toxicity of substitute fibres not “proven”,
what is more, the EC and the United States misrepresent the situation of substitute fibres in an effort
to compensate for the irrationality of the total ban on asbestos and the blind use of substitute fibres.
For example, the United States claims that “none of these [replacement] fibers have been found tocause either malignant or non-malignant respiratory diseases similar to those associated with asbestos
exposure in humans”.
295  Canada considers that this is not true, as can be seen from the IARC data and
its classification of carcinogenic substances.  The IARC classifies substances according to the
following four categories:296
(a) group 1: the agent (mixture) is carcinogenic to humans.  The exposure circumstance
entails exposures that are carcinogenic to humans;
(b) group 2 (two classifications):
(i) group 2A:  the agent (mixture) is prob ably carcinogenic to humans.  The
exposure circumstance entails exposures that are probably carcinogenic to
humans;
(ii) group 2B:  the agent (mixture) is possibly carcinogenic to humans.  The
exposure circumstance entails exposures that are possibly carcinogenic;
(c) group 3:  the agent (mixture, or exposure circumstance) is unclassifiable as to
carcinogenicity in humans;
(d) group 4:  the agent (mixture, or exposure circumstance) is probably not carcinogenic
to humans.
3.201  Canada explains that these groups are not based on the toxicity of the substances, but rather
on the available information.  To the EC, which state that chrysotile is a carcinogenic agent ingroup 1, Canada responds that this category, which covers three and a half pages in the IARC
document, includes many products such as silica, tobacco smoke and wood dust; it also includes
alcoholic beverages, salted fish and oral contraceptives.  The IARC warns against the reasoning of
saying that a substance in group 1 is more hazardous than a substance in group 2.
“These categories refer only to the strength of the evidence that an exposure is carcinogenic and not to
the extent of its carcinogenic activity (potency) nor to the mechanisms involved.  A classification may
change as new information becomes available.”297
For example, a substance may be classified in gr oup 2B if there is sufficient data from animal
experiments confirming its carcinogenicity, but the data for humans are still “inadequate”.  Rock,
glass and slag wools and refractory ceramic fibres are classified in group 2B, i.e. possible
carcinogens.  Polyvinyl alcohol, aramid and glass fibres are classified in IARC group 3, which is
characterized by “inadequate” evidence of carcinogenicity in humans and “inadequate” or “limited”
evidence from animal experiments.  For Canada, it is not surprising that knowledge is still insufficient
with respect to substitute fibres that have been us ed industrially for only about 20 years.  According to
the French Institut national de recherche et de sécurité (INRS)  (National Research and Safety
Institute), “[Tr.] some authors are of the opinion that glass fibres should be considered
                                                     
295 See Section IV below.
296 See IARC, Evaluation Method, on-line: IARC < http://193.51.164.11/monoeval/Eval.html> (access
date: 16 June 1999).
297 Id.WT/DS135/R
Page 82
carcinogenic.”298  The IARC, for its part, reveals that glass fibre can cause mesotheliomas, at least in
animals.299
3.202  Canada also indicates that the United States claims that none of the chrysotile substitute fibres
have been associated with respiratory diseases si milar to those associated with asbestos.  However,
the United States Occupational Safety and Health Administration (OSHA) points out the hazards ofsynthetic mineral fibres:
“Several epidemiologic studies have demonstrated statistically significant elevations in the risk of lung
cancer and other respiratory system cancers among workers employed in fibrous glass and mineralwool manufacturing facilities.  [...] The most recent follow-up of fibrous glass exposed workers in theU.S. study still demonstrate a significant excess of lung cancer. [...]  Numerous studies havedemonstrated that fiber glass and mineral wools produce lung cancer, mesotheliomas, and sarcomas in
experimental animals.”
300
The accumulation of evidence has prompted the United States to classify glass fibre, glass wool and
ceramic fibres as “reasonably anticipated to be a carcinogen”.301
3.203  Canada notes that the French INRS states that refractory ceramic fibres “[Tr.] cause
mesotheliomas with an experimental incidence compar able to and indeed greater than (at high doses)
asbestos (chrysotile)”.302   Again according to the INRS: “[Tr.] In light of the results of animal
experiments, RCFs [refractory ceramic fibres] are carcinogenic and fibrogenic when inhaled”.303
According to the United States EPA, these fibres are probable carcinogens.304  The EC cite the larger
diameter of three of the substitute fibres, namely PVA, para-aramid and cellulose fibres, to argue that
they pose a lower health risk. However, this is a “nominal diameter” which does not prevent a
significant proportion of fibres from having a diameter which falls well within the range of  respirablediameters.
305
3.204  According to the WHO in a 1993 study on substitute fibres:
“All fibres that are respirable and biopersistent mu st undergo testing for toxicity and carcinogenicity.
[...] The data available suggests para-aramid fibres fall within this category.  Furthermore, other
respirable organic fibres should be considered to fall within this category.”306
                                                     
298 Fibres minérales artificielles et amiante (Résumé), Report of the Groupe scientifique pour la
surveillance des atmosphères de travail (G2SAT), INRS – DMT No.69.
299 See IARC, Vol. 2, para. 5.1, available on-line:  IARC
<http://193.51.164.11/htdocs/monographs/Vol02/Asbest os.html> (acces date: 10 June 1999); IARC Vol. 14,
para. 5.1 available on-line: IARC < http://193.51. 164.11/htdocs/monographs/Vol 14/Asbestos.html> (access
date: 10 June 1999).
300 See United States Department of Labor (OSHA), Synthetic Mineral Fibers:  Hazard Description ,
on-line: OSHA <http://www.osha.gov/oshinfo/prio rities/synthetic.html> (access date: 22 June 1999).
301 Id., OSHA refers to the National Toxicology Program, Seventh Annual Report on Carcinogens,
United States Department of Health and Human Services, Public Health Service, 1994.
302 Fibres minérales artificielles et amiante (Résumé), Report of the Groupe scientifique pour la
surveillance des atmosphères de travail (G2SAT), INRS – DMT No.69.
303 Id.
304 Canada See notes that the United States EPA cl assifies refractory ceramic fibres as probable
carcinogens. See the EPA site on refractory ceramic fibres, available on-line: EPA
<http://www.epa.gov/iris/subst/0647.htm>.
305 Dunnigan, J., Nadeau, D. and Paradis, D., Cytotoxic Effects of Aramid Fibres on Rat Pulmonary
Macrophages:  Comparison with Chrysotile Asbestos , (1984) 20 Toxicology Letters 277.
306 IPCS Environmental Health Criteria (151):  Selected Synthetic Organic Fibres , WHO, Geneva,
1993, p.76.WT/DS135/R
Page 83
In light of the IARC classification, the WHO, EPA and INRS data, and the two INSERM reports,
Canada considers that one cannot therefore objectively speak, as the EC do, of the “proven” safety or
lower toxicity of substitute fibres.  In Canada’s view there is “no clear hierarchy in the relative
toxicity” of chrysotile fibres and substitute fibres, as the EC claim and would like to believe.
3.205  Canada considers that the use of chrysotile substitute fibres has an impact not only in terms of
creating a risk for the French population because of the toxicity of substitute fibres and the false sense
of security that the Decree promotes.  The use of substitute fibres also has a direct impact on the
question of controlled use, one of the key issues in this dispute.  Canada notes that, in order to counter
Canada’s argument that there is a means less restri ctive for international trade than a total ban, the EC
cite “the impossibility” of the controlled use of chry sotile.  Yet, in the same breath, they minimize the
risks of substitute fibres by stating that the strict  regulations which govern them eliminate any hazard.
For Canada, these strict regulations constitute nothing less than a controlled use of substitutes.
3.206  Canada notes that the EC claim, for example, that refractory ceramic fibres, despite their
known toxicity, do not pose a risk to the French population since they are strictly regulated, citing in
support of their argument the relevant articles of the Labour Code.  They continue to praise controlled
use, boasting that “replacement by man-made mineral fibres is strictly regulated”. Concerning glass
and rock wools, the EC claim that “These fibres are subject to occupational exposure limits and to therules designed to protect workers against chemical risks.” As for refractory ceramic fibres, the French
population is apparently protected since “These fibres are subject to rules which are even stricter than
those concerning chemical risks.”  Canada is quite intrigued by this about-face as to the merits of
controlled use and wonders why the EC cite the feasibility of controlled use for substitute fibres and
summarily reject the feasibility of controlled use in the case of chrysotile fibres?
3.207  According to Canada, the EC are endeavouring to make the replacement of chrysotile by
fibres “shown to be harmless or less harmful” a “necessity acknowledged internationally”.  There are
two major flaws in this reasoning.  The first flaw is that replacement must be done only when
necessary.  The ILO, through Convention 162
307 and Recommendation 172,308 therefore provides for
replacement “where necessary”.  As Canada has already pointed out, high-density non-friablechrysotile materials account for 97.5 per cent of the current uses of chrysotile.  These are no longer
the friable products that the WHO, like Canada, considers problematic.  In Canada’s opinion, it is
these friable products whose replacement must be contemplated and that have already been largely
replaced (97.5 per cent).
3.208  Canada notes that, as the EC emphasize, the WHO is of the opinion that replacement must be
done whenever it is possible to replace chrysotile asbestos with “safe substitute materials”. As Canada
has stressed, the chrysotile substitute products used in France are not, as the WHO prescribes, “safe”.Chrysotile asbestos is not replaced by products “shown to be harmless or less harmful”.  Nor is it
replaced by products which, according to the ILO, should be “harmless or less harmful”.
309  The
replacement of chrysotile asbestos by substitute fibres in fibro-cement and friction products is not a
“necessity acknowledged internationally”.  At best, the Decree on a ban, which imposes replacement,
                                                     
307 Convention concerning Safety in the Use of Asbestos (Convention 162), adopted on 24 June 1986,
International Labour Organization, Geneva, Article 10. Recommendation concerning Safety in the Use ofAsbestos (Recommendation 172), adopted on 24 June 1986, International Labour Conference, Geneva,Article 12.
308 Recommendation concerning Safety in the Use of Asbestos (Recommendation 172), adopted on
24 June 1986, International Labour Conference, Geneva, Article 12.
309 Convention concerning Safety in the Use of Asbestos (Convention 162), adopted on 24 June 1986,
International Labour Organization, Geneva, Article 10;  Recommendation concerning Safety in the Use ofAsbestos (Recommendation 172), adopted on 24 June 1986, International Labour Conference, Geneva,Article 12.WT/DS135/R
Page 84
is an unjustified restriction on international trade in violation of the WTO Agreements.310  At worst, it
is a measure which endangers the French population by replacing an undetectable risk by an unknown
risk and by fostering a false sense of security.
3.209  The European Communities assert that the principle of replacing one substance by another
that is less dangerous or harmful or by a new technique is a general rule of primary preventionapplicable to human and environmental protection.  It is based on abolishing the risk at the source by
totally abandoning the use of the substance shown to  be harmful in order to eliminate its effects.
Where the use of asbestos fibres is concerned, this basic rule is applied by all the international bodies
that draft recommendations designed to protect hum an health.  According to the EC, positions on this
rule have been taken repeatedly:  (i) by the ILO
311, since 1986;  (ii) by the WHO312, in particular in its
press release dated 26 July 1996 concerning the chrysotile variety of asbestos, according to which
“when available, substitute materials evaluated as safer than chrysotile should be considered”; and(iii) by the European Community in its 1990 framework Directive on the health and safety of workers
and later in the Directive on carcinogens.
3.210  The EC point out that, when banned in France, asbestos fibre was not being used as such but
mainly as a component in the following products or materials:  (i) asbestos-cement materials (pipes,
ducts, roof tiles, roof and wall cladding, planting tubs, etc.), which accounted for more than 90 per
cent of the chrysotile used in France;  (ii) friction materials (clutch and brake linings);  (iii) insulation
(board, felt);  (iv) textile products (sealing braid, tape, blankets); (v) seals and gaskets; and
(vi) miscellaneous products (mouldings, plastics, glues, coatings, mortars, etc.).  Since asbestos has so
many uses, there is no single natural or synthetic product which, alone, could serve as a universalreplacement for asbestos in all the products and materials that contain it.  According to the EC, there
is thus no single substitute for asbestos, only replacement solutions which rely on different substitutes
depending on the application, sometimes used in combination to provide a material or product with
equivalent performance.  Thus, the ban on asbestos is being applied by steering the market for
asbestos-containing products and materials towards:  (i) existing alternative technologies which do notrely on a substitute for asbestos (ductile iron or plastic pipes, aluminium roof and wall cladding, etc.);
and (ii) products and materials containing one or more substitutes, some of which are fibrous but less
dangerous.
3.211  The EC state that, depending on the application, asbestos has been replaced by:  (i) cellulose,
polyvinyl alcohol and polypropylene fibres in asbestos-cement materials;  (ii) para-aramid fibres and
glass fibres (combined with other non-fibrous materials) in brakes and other friction products;(iii) man-made mineral fibres (glass, rock) and often non-fibrous materials (perlite, vermiculite,
silicates, etc.) for insulating panels, blocks and coatings;  (iv) para-aramid and man-made mineral
fibres combined, depending on the technical requirements, with metal thread (steel) or carbon or
polytetrafluoroethylene (PTFE) fibres in asbestos-containing textile products, seals and various
moulded products;  or (v) special glass fibres (calcium and magnesium silicates) or refractory ceramicfibres in products designed to withstand very high temperatures.  The price of asbestos fibres varies
from F 5 to 9 per kilo depending on the origin and the physical characteristics of the fibres.  The
various substitute products, whether or not fibrous, are generally more expensive than asbestos (with
the exception of some which cost more or less the same).  The finished products containing asbestos
substitutes are all more expensive than the asbestos-containing products serving the same purpose.  Ingeneral, the price ranges of the main substitutes are as follows:  (i) less than or about F 12/kg:
cellulose, man-made mineral fibres (glass, rock), perlite, vermiculite;  (ii) from F 12 to 60/kg:  glass
filaments, steel thread, polypropylene and polyvinyl alcohol fibres;  (iii) from F 60 to 120/kg:  special
                                                     
310 Canada notes that the Decree “in no way makes it mandatory to use substitute products”, but it does
make it unavoidable, as the EC note.
311 Convention concerning Safety in the Use of Asbestos (Convention 162), adopted on 24 June 1986,
International Labour Organization, Geneva, Article 10.
312 Chrysotile Asbestos evaluated by Health Experts , Press Release 51, WHO, 26 July 1996.WT/DS135/R
Page 85
glass fibres (high-temperature), polytetrafluoroethylene (PTFE) fibres;  and (iv) from F 120 to 200/kg:
para-aramid and refractory ceramic fibres.
3.212  The EC indicate that these various substitutes are used as replacements for asbestos only on a
very small-scale as compared with their widespr ead use in other industries:  (i) between 10 and
20,000 tonnes of cellulose for fibro-cement, as compared with about 5 million tonnes consumed inFrance in the paper and textile industries;  (ii) only a few thousand tonnes of polypropylene or
polyvinyl alcohol fibres, which are mostly used in the textile and packaging industries;  and (iii) less
than 1 per cent of man-made mineral fibres, mainly used for insulating buildings.  In general, France
imports about 40 per cent of the cellulose it uses, in particular from Canada
313 and the United States.
Thus, in 1998, France imported 380,000 tonnes from Canada as compared with 371,000 tonnes in
1997 and 366,000 tonnes in 1996.  The EC also note that there are only two factories in the world that
produce polyvinyl alcohol fibres, one in Japan and the ot her in China.  Finally, overall, France’s trade
balance for these two products is regularly in deficit.
3.213  The EC assert that none of the substitutes for chrysotile is classified as carcinogenic for
humans.  The main substitutes are cellulose and polyvinyl alcohol fibres used to replace chrysotile in
materials and products formerly made of asbestos-cement, together with the para-aramid fibres used
in jointing, textiles and friction products.  Accord ing to the EC, these are substances which give no
cause for concern after decades of massive use throughout the world for other purposes.  Thus:
(i) cellulose fibres have also been used for several centuries for making paper pulp (several million
tonnes are consumed in France every year);  (ii) polyvinyl alcohol has been widely used since 1936
for making film for wrapping food and in the textile industry;  and (iii) since the 1960s, para-aramid
fibres have been extensively used for making clothing and twine.  Only fibres less than 3 microns indiameter can penetrate deep into the lungs.  The fibres which must be taken into account in making a
metrological assessment of a working environment have been defined by the WHO
314 in accordance
with the following dimensional parameters:  (i) length greater than 5 microns;  (ii) diameter less than
3 microns;  (iii) ratio of length to diameter greater than 3 microns [3:1].  The polyvinyl alcohol and
para-aramid fibres used to replace asbestos are 2 to 8 mm (i.e. 2,000 to 8,000 microns) long and 10 to
16 microns in diameter.  Cellulose fibres, which ar e 12 to 40 microns in diameter, can give rise to
finer particles (fluff), which are said to irritate the respiratory pathways.  These fibres are more than
10 microns in diameter, which means that it is physically impossible for them to penetrate into the
pulmonary alveoli.
3.214  The EC consider that the results of the CSTEE315 and COC316 studies are unambiguous as
regards the carcinogenicity of chrysotile and the fact that the three fibres mentioned above have given
no cause for concern over their long period of use.  Man-made mineral fibres such as glass or rock
fibres are used for gaskets, friction materials and sealing braid required to withstand temperatures up
to 1,200ºC.  These substances have been the subject of studies analysed in two reports317 which have
concluded that they are less harmful for humans than chrysotile asbestos.  The EC emphasize that,
unlike chrysotile fibres, which have a diameter of from 0.1 to 1 micron and which separatelengthways into even finer crystalline fibrils (0.020 micron), all the synthetic fibres used in France to
replace chrysotile, whether of organic (polyvinyl alcohol, para-aramid) or mineral (glass, rock) origin,
                                                     
313 The EC note that, in 1984 and 1985, Canada produced 20 million tonnes of cellulose (source:
Alternatives to Asbestos, the Pros and Cons , Society of Chemical Industry, United Kingdom, 1989).
314 Determination of airborne fibre number concentrations, WHO, Geneva 1998.
315 Avis concernant l’amiante chrysotile et les produits de substitution envisageables , Scientific
Committee on Toxicity, Ecotoxicity and the Environment (CSTEE), 15 September 1998.
316 Statement for the Health and Sa fety Executive (HSE) on Carcinogenic Risks of Three Chrysotile
Substitutes, Committee on the Carcinogenicity of Chemicals in Food, Consumer Products and the Environment
(COC), July 1998.
317 Fibres minérales artificielles et amiante (Résum é), Report of the Groupe scientifique pour la
surveillance des atmosphères de travail  (G2SAT), INRS – DMT No.69. INSERM, Substitutes – Executive
Summary.WT/DS135/R
Page 86
retain the diameter determined by the manufacturing process throughout the life cycle of the fibre,
even when emitted by a material in the process of being machined.  Refractory ceramic fibres, classed
as group 2 carcinogens (i.e. carcinogenic in animals but not in man), are only used in industry for a
few applications where very high temperatures must be withstood.  In accordance with the
substitution principle, they are progressively being replaced by other, less harmful substances astechnology evolves.
7. The INSERM report
3.215  Canada  states that, at the request of the  Direction des Relations du Travail  (Ministry of
Labour) and the Direction Générale de la Santé  (Ministry of Social Affairs), INSERM mandated a
“joint commission of experts” to study the health effects of the main types of exposure to asbestos.
This group of 11 researchers was set up in the summer of 1995 and met some ten times betweenAugust 1995 and March 1996. It submitted its Executive Summary to the French Government on
21 June 1996. This Executive Summary was made public in July 1996 and the final report in
November 1997.
318  The final report has two sections: an analysis section and an Executive Summary.
The analysis section contains a review of the scientific literature and summarizes the state of
knowledge, allowing for a better understanding of the health risks of various circumstances ofexposure to asbestos. In particular, this section covers measurement methods, the physico-chemical
properties of asbestos, the main circumstances of exposure and the epidemiology of diseases linked to
asbestos. The Executive Summary contains a recapitulation and presents the findings and
recommendations on future studies and research to be carried out.
3.216  Canada notes that the main findings in the Executive Summary are as follows:  concerning the
evaluation of the risks, INSERM estimated the number of deaths in France in 1996 attributable to
passive exposure to asbestos at 1,950.  Concerning risk management, the group of experts pointed to
certain facts:  (i) asbestos is carcinogenic and should be replaced with substitute fibres, as soon as
technically possible, in accordance with European law; however, the researchers do not have
sufficient information on the risks of substitute fibres;  (ii) chrysotile entails a level of risk comparableto or lower than the other types of asbestos, depending on the diseases considered;  (iii) there is not
enough data on the number of persons exposed to asbestos to assess the risks under varying situations
of exposure;  (iv) the risk assessment was effected on the basis of the regulation legal exposure limits;
(v) the quantification of the risks is different from an evaluation of the risks, which would involve
ethical, social, economic and political considerations;  (vi) the researchers express grave reservations
about the systematic removal of sprayed asbestos from buildings; (vii) extreme caution is called for
with regard to the control of the conditions of occupational exposure to asbestos; and (viii) the
researchers question the low level of compensation afforded to persons suffering from diseases caused
by occupational exposure to asbestos.
3.217  Canada notes that the group also issued recommendations on future studies and research to be
carried out in the following areas for which the data are still insufficient:  (i) knowledge of site
contamination;  (ii) knowledge of exposure of people;  and (iii) monitoring the trend in health risksassociated with exposure to asbestos in order to assess the risk of low-level exposure.  Finally, the
research group makes the following recommendations : (i) further epidemiological research should be
conducted into the risks associated with exposure to asbestos, as the researchers had not been able to
gain an in-depth understanding of the topic;  (ii) given the lack of data on the safety of substitute
fibres, research should be conducted into this area without delay;  (iii) more extensive research intothe control of environmental health risks should be conducted;  and (iv) a policy of coordinated
studies and research into the environmental health risks should be elaborated.  According to Canada,
the INSERM report does not offer any new scientific findings. However, it proposes a model for
assessing the risks of contracting lung cancer and mesothelioma from low-level exposure, which is
                                                     
318 INSERM, Rapport sur les effets sur la santé des principaux types d’exp osition à l’amiante ,
INSERM joint report, Paris, INSERM publications, 1997, p.239.WT/DS135/R
Page 87
based on a simple extrapolation of the risks observed from higher levels of exposure, without
distinction between amphiboles and chrysotile. Th e report indicates, however, that: “[Tr.] This
extrapolation does not produce certain scientific k nowledge, but only an aid to understanding the
implications for risk management.”319
3.218  Canada submits to the Panel four studies that are critical of the INSERM report. The studies
are by the Royal Society of Canada320, Dr. Graham W. Gibbs321, Dr. Jacques Dunnigan322 and the
epidemiologist Michel Camus.323 Furthermore, certain key conclusions of the INSERM report
obviously contradict a study by the French Académie nationale de médecine .324  The critical studies
reveal that INSERM studied the health effects of asbestos on the basis of hypothetical exposure
situations that bear no relationship whatsoever to  actual exposure. INSERM did not have at its
disposal any data whatsoever on the number of persons exposed to asbestos in France. It did not
sufficiently emphasize the fundamental pathogenic distinction between amphibole fibres andchrysotile fibres. The conclusions of the INSERM report are based on the risks associated with
exposure sustained in the context of outdated asbestos applications, i.e., the use of amphiboles or fibre
mixtures in brittle materials such as spraying asbestos and heat insulation. Moreover, the methodology
of the INSERM report utilizes a linear risk model that assigns, by pure extrapolation, theoretical risks
to low-level exposure, even though no epidemiological study to date has detected a higher health riskresulting from low-level exposure. Finally, the INSERM report does not investigate substitute fibres,
a problem that the researchers themselves considered to be “inseparable”
325 from the question of
whether to ban chrysotile.  Canada also notes that the INSERM report was qualified by Claude
Allègre, France’s Minister for Education, as “mediocre”.  Mr. Allègre also said that “[Tr.] There is
nothing exceptional about the report in terms of scientific rigour, courage or scientific initiative […]The report contains no clear findings and can be used to support any and all arguments.”
326
3.219 According to Canada, the INSERM report is based on hypothetical data327 and does not study
the exposure actually sustained by the French popul ation. Instead, it proceeds to make “the most
plausible, though uncertain estimates”.328 The INSERM researchers themselves concluded that “[Tr.]
there is currently a great deal of uncertainty about occupational or passive exposure that has existed or
                                                     
319 INSERM report, p. 239.
320 Royal Society of Canada, A Review of the INSERM Report on the Health Effects of Exposure to
Asbestos, Ottawa, 1996 [hereinafter “RSC”]. Canada notes that the RSC formed an international committee of
independent experts to review the INSERM report. This committee, which was chaired by Dr. F. Kenneth Fare,
Ph.D. (Montreal) was composed of the Canadian Mich ael Brauer, Sc.D. (Harvard, Berkeley), the American
Kenny S. Crump, Ph.D. (Montana State), the Briton John M.G. Davis, MA, Sc.D. (Cambridge), FRC. Path., and
Enzo Merler, MD (Padua).
321 M.Sc., Ph.D., LRSC, ROH.: Gibbs, G., A Review of the Report: “Rapport d’expertise collective
INSERM” , October 1996 [hereinafter “Gibbs”].
322 Ph.D.: Dunnigan, J., Commentaire sur le “Rapport d’expertise collective INSERM” , September
1996 [hereinafter “Dunnigan”].
323 Ph.D. Camus, M., L’amiante et les risques pour la santé , April 1999.
324 Académie nationale de médecine (Étienne Fournier), Amiante et protection de la population exposée
à l’inhalation de fibres d’amiante dans les bâtiments publics et privés , Paris, 1996.
325 INSERM report, p. 428.
326 Comments reported in Le Monde , 18 October 1997, p.13.
327 Canada notes that, two months before the appearance of the INSERM report, the Académie
nationale de médecine considered it crucial that scientific  reports on the risks associated with asbestos should be
based on real data, not hypothetical data. According to the Académie:  “A cautious attitude should undoubtedlyalways be adopted with regard to the purity of the air inhaled, but speaking or writing on asbestos in general
without taking into account the doses or quantities actually present in the air inhaled is at the best a sign of
ignorance and at worst an attempt at blackmail.  We therefore refer to quantities measured.” (WTO translation)(Académie nationale de médecine (Étienne Fournier), Amiante et protection de la population exposée à
l’inhalation de fibres d’amiante dans les bâtiments publics et privés , Paris, 1996, p. 10).
328 INSERM report, p. 232.WT/DS135/R
Page 88
now exists within the population”.329  In Canada’s view, therefore,  the INSERM researchers could
only have based their conclusions on hypothetical exposure data. These “hypothetical” conclusions
concerning the number of deaths attributable to asbestos among an exposed population (for example
10,000) cannot be applied to the French population because the number of persons exposed to
asbestos in France, and the rate of exposure, remain unknown.330  Canada notes that the Royal Society
of Canada (RSC) writes that “… the report fails adequately to address the relevance of the available
studies to the key present question:  are current exposures associated with increased risk?” (underlined
in the original).331  This shortcoming undermines the usefulness of the INSERM report, prompting the
RSC to express its concern over the fact that “… the risk characterization is less satisfactory because
actual exposure data were not used”.332  The RSC stresses that the hypothetical estimation of exposure
inevitably results in an overestimation of the risks actually incurred by the French population.
“Not only does the failure to look at realistic exposures result in less specific guidance on the actual
situation in France, but the assumed exposures are likely to be much greater than those experienced by
the French population. […] INSERM’s estimates have been based on permissible occupational and
environmental levels in France.  This methodology is not wrong, provided that it is clearly understoodthat the predicted deaths are not based on the exposure profile of the French population.  Theconditions of exposure are hypothetical.  […] the report should have emphasized that actual exposuresare in all likelihood substantially lower, and so, correspondingly, are the actual risks facing the Frenchpublic.”
333
3.220  Canada notes that, when calculating ongoing indoor passive environmental exposure,
INSERM applied the high exposure level of 0.025 f/ml.334 For occupational exposure levels, it applied
another very high rate, 0.1 f/ml.335 Moreover, INSERM applied these exposure levels to the risk
models applicable to cohorts for whom the exposure levels were between 2 f/ml and 250 f/ml336,
i.e., at levels that are 20 to 10,000 times higher.  In its conclusions and recommendations, INSERMstresses the fact that, besides having used hypothetical exposure rates, the number of persons actually
exposed to asbestos – the collective risk of the French population – is unknown and has not been the
subject of any research.  Canada points out that the conclusions presented as the risk per
10,000 persons refer to a population of 10,000 persons actually exposed to the hypothetical – and
exaggerated – levels applied by INSERM:
“The estimates we have furnished correspond to ‘individual’ risks;  we in fact estimated the probability
that a person who might  find himself in a hypothetical situation of exposure to asbestos would develop
lung cancer or a mesothelioma because of this (it is indeed an individual risk, even if it is expressed in
terms of ‘per 10,000’.” [italics in the original].”337 (WTO translation)
3.221  Canada notes that, according to INSERM, “These figures alone do not give an overall
estimate of the number of deaths from cancer in France at the present moment attributable to exposure
                                                     
329 Id., p. 423.
330 Id., p.235, see also pp. 234, 237, 238.
331 RSC, A Review of the INSERM Report on the Health Effects of Exposure to Asbestos, Ottawa, 1996
p.3 of the English text.
332 Id., p.4 of the English text.
 333 Id., pp.4 and 12 of the English text. Canada indicates that Dr. Gibbs is of the same opinion as the
RSC:  “In interpreting the risks provided in the report, it is important to recognize that risk estimates given in thereport are, in general, not based  on actual or estimated exposures but on the current or proposed ‘legal’ limits in
France.”  (Gibbs, p.2).
334 INSERM report, p. 232.  Canada notes that this level is the maximum legal limit in France for
indoor passive exposure. For a critique of this approach, see Camus, M., L’amiante et les risques pour la santé ,
April 1999, p.8.
335 Id. 
336 INSERM report, pp.233-38.
337 Id., pp.428 and 429.WT/DS135/R
Page 89
to asbestos” (WTO translation).338 The report concludes that “it is essential to obtain information on
the number of persons exposed to asbestos […] in order to be able to estimate the number of cases of
lung cancer and mesothelioma caused by exposure to asbestos […] in the French population
(‘collective’ risk’).”339 (WTO translation).  INSERM estimates the number of cancer deaths in 1996
linked to exposure to asbestos at 1,200. It arrives at this number by applying to all of France theresults of a study of the population of Glasgow, without analysing the methodology of this study or
the rates of exposure to asbestos of this population.
340  Yet INSERM points out that “[Tr.] France
began using asbestos later and used less asbestos than other countries, and no doubt proportionately
smaller quantities of amphibole-type fibres.  Because of these differences, there is no simple way to
transpose to France the results of the projections regarding mesotheliomas [and cancers] recently
produced for Great Britain”.341   As for the number of mesothelioma deaths, Canada notes that
INSERM does not reveal how it arrived at its estimate of 750.  Canada also notes that the FrenchSenate and National Assembly
342 and the Académie nationale de médecine estimate this number at
600, of which up to 30 per cent are “unrelated to asbestos”.343 Furthermore, according to the Académie
nationale de médecine, an exposure of 0.025 f/ml for eight hours a day over 60 years would entail a
risk of contracting mesothelioma of “one case per million, a figure equivalent to zero in biological
mathematics”.344
3.222  In Canada’s view, INSERM’s risk estimates do not pay sufficient attention to the crucial
distinction between the effects of amphiboles and those of chrysotile. Moreover, the risk estimations
presented as being linked to chrysotile exposure are often based on parameters for exposure to
amphiboles or amphibole-chrysotil e mixtures.  According to Canada, it is well known that the
pathogenic potential of amphiboles is much greater than that of chrysotile345 and, even if it did not pay
                                                     
338 Id., p.235.  See also p.236.
339Id., p.429.  INSERM also emphasizes that “this information is practically non-existent in our country
and it should now be collected so that we can have an overall estimate of the number of persons concerned bythe various situations of exposure to asbestos and the risks they are running because of this”. (WTO translation)
340 De Vos Irvine, H. et al. , Asbestos in Lung Cancer in the West of Scotland  (1993) 306 British
Medical Journal, 1503. This study is included in Wilkinson, P. et al. , Is Lung Cancer Associated with Asbestos
Exposure When There are no Small Opacities on the Chest Radiograph?  (1995) 345 Lancet 1074. INSERM
applied the rate of 5.7 per cent of cancers linked to asbestos in Glasgow to the total 21,617 cancer cases inFrance in 1996 to arrive at 1,200 deaths by cancer linked to asbestos (INSERM report, p.250). According to theauthors of the study, De Vos Irvine, H. et al.:   “A comparison of international cancer registry data shows that
the west of Scotland experiences one of the highest incidence rates of lung cancer in the world.”  (p.503). The
RSC makes a point of the lack of scientific rigour on the part of INSERM with regard to this conclusion. It is of
the opinion that “INSERM’S estimates of asbestos-related deaths in France in 1996 [were] based on an estimatefrom the literature specific for Great Britain without critical analysis of the methodology, or establishment thatthe estimate was applicable to France (RSC, p. 3 of the English text;  See also Gibbs, p.13).
341 INSERM report, p.409.  In Canada’s view, INSERM's error can clearly be seen in the following
example. According to INSERM's conclusions, there would be 543.5 cancers in a population of 10,000 people
subject to an occupational exposure of 0.1 f/ml for 40 hours a week over 45 years. However, only 21.5 of thesecancers would be linked to exposure to asbestos (INSERM report, p.234).  Thus, according to INSERM's data, alittle less than 4 per cent of the cancer deaths (21. 5/543.5 = 4 per cent) of a population highly exposed to
asbestos (0.1 f/ml for 40 hours a week over 45 years) would be linked to asbestos. Why then did INSERM applythe 5.7 per cent from the Glasgow study to the entire French population, which was not subject to exposure of
0.1 f/ml for 40 hours a week over 45 years? Canada notes that, even if one accepts the 4 per cent rate at which
INSERM arrived, the number of cancer deaths in 1996 attributable to past exposure to asbestos would be 864(4 per cent x 21,617), not 1,200.
342 Le Déaut, J.-Y. et Revol, H., L’amiante dans l’environnement de l’homme: ses conséquences et son
avenir , Office parlementaire d’évaluation des choix scientifiques et technologiques, National Assembly no. 329
/ Sénat no. 41, 1997, p.29.
343 Académie nationale de médecine (Étienne Fournier), Amiante et protection de la population exposée
à l’inhalation de fibres d’amiante dans les bâtiments publics et privés , Bulletin de l’Académie nationale de
médecine, Vol. 180, no. 4., pp.8 and 9.
344 Id., p 9.
345 Dunnigan, p. 4.WT/DS135/R
Page 90
sufficient attention to this fact, the INSERM report nonetheless recognizes the much higher
mesothelioma risk associated with exposure to amphiboles, compared to chrysotile exposure.346  I n
this regard, Dr. Gibbs remarks that “when they [INS ERM] estimate the risk of mesothelioma, they fail
to take into account the differences in risk associated with these various fibre types.”347  He continues:
“The INSERM report grossly overestimates the mesothelioma risks due to exposure to ‘commercialchrysotile’ only. The hypothetical risks in the report would be more accurately characterized as those
associated with amphibole or mixed commercial amphibole-chrysotile exposures.”
348  The comments
of the RSC are similar:
“The Panel believes  that the risk of mesothelioma from chrysotile exposure is likely overestimated,
since it is based on a single study that involved a small amount of crocidolite in addition to chrysotile,and ignored several studies of pure chrysotile exposure, all of which indicate a smaller mesotheliomarisk than calculated by INSERM.”
349 [italics in the original]
3.223  Canada indicates that, in addition to mentioning the use of risk estimation parameters
associated with amphiboles or mixed fibres, Dr . Gibbs points out that INSERM applied the
parameters deriving from the exceptionally high risk levels of the textile industry sector, as opposed
to the risks posed by the chrysotile-cement sector , which accounted for more than 90 per cent of the
modern uses of chrysotile in France prior to the adoption of the Decree:
“The INSERM authors have chosen to use as their factor for estimating lung cancer risk, a value
reflecting risks in the textile industry sector or mixe d asbestos fibre industries.  The use of such a factor
may be reasonable if INSERM reports that the factor reflects mixed exposure or is based on the odd
man out – the high textile risk. The INSERM report is misleading in inferring that these are the risks
associated with commercial chrysotile. They do not reflect the values which are relevant to thechrysotile friction industry, mining and milling industries or chrysotile asbestos-cement industry.”
350
3.224  Canada states that INSERM examined outdated exposure, but did not consider any risk study
based on current chrysotile exposure. Under the misleading sub-title “3.1.1. Estimation of the risks
associated with exposure to asbestos” (WTO translation), the report claims that 1,950 deaths were
linked to exposure to asbestos in 1996. According to Canada, these deaths are in no way attributableto the current circumstances of exposure to chrysotile.  Considering the latency period of 15 to
50 years in the case of mesothelioma and 15 to 30 years in the case of cancers
351, the 1,950 deaths are
the result of exposure caused by the outdated practices of the 1950s and 1960s. Moreover, Canada
considers that it is very likely that these exposures were to amphibole-chrysotile mixtures and pure
amphiboles. Important reservations are in order with  regard to this conclusion of INSERM.  The RSC
states that:
                                                     
346 INSERM report, p.412. The Académie nationale de médecine confirms that amphiboles are
“currently considered to be the most dangerous” and that chrysotile is “considered as not very dangerousbecause it is broken down spontaneously in the human organism […] Chrysotile is a form of asbestos that hasonly caused mesothelioma in cases of massive and prolonged exposure.  This can be explained by its solubilityin the organism.” (WTO translation). (Académie nationale de médecine (Étienne Fournier), Amiante et
protection de la population exposée à l’inhalation de fibres d’amiante dans les bâtiments publics et privés ,
Bulletin de l’Académie nationale de médecine, Vol. 180, no. 4, p.2). 
347 Gibbs, p. 6. The Royal Society of Canada adds that “the differences between chrysotile and
amphiboles may have been underestimated by INSERM, particularly for mesothelioma”. (RSC, p.6 of theEnglish text). 
348 Gibbs, p. 8.
 349 RSC, p.12 of the English text.
350 Gibbs, p.9. See also Camus, M., L’amiante et les risques pour la santé , April 1999, p.8.
351 Académie nationale de médecine (Étienne Fournier), Amiante et protection de la population exposée
à l’inhalation de fibres d’amiante dans les bâtiments publics et privés , Bulletin de l’Académie nationale de
médecine, Vol. 180, no.4, p.4.WT/DS135/R
Page 91
“the INSERM estimates of 750 deaths in France from mesothelioma and 1,200 from lung cancer in
1996 refer to deaths in 1996 but from occupational exposures at a much earlier date ;  they are not
deaths due to exposures in 1996.  Although INSERM is well aware of this, their report is not explicit
enough.” [underlined in the original]352
3.225  Canada notes that, according to INSERM, “the immense majority of these deaths can
indisputably be explained by circumstances of occupational or para-occupational origin”353, which is
to say, exposure that is neither environmental exposure nor exposure to asbestos indoors354, and
which, according to INSERM itself, poses no risk whatsoever according to the epidemiological
data.355  Canada notes that, two months prior to the publication of the INSERM report, the French
Académie nationale de médecine  published a study urging calm in the face of the widespread fears
incited by exaggerated media coverage of cancer and mesothelioma cases. The Académie resolutely
stated that the extremely low current levels of exposure are not a source of health risks.356  Canada is
surprised that INSERM paid no heed to this observation, which was well-known in French scientific
circles at the time.
3.226  Canada also points out that INSERM did not investigate the case of intermittent exposure to
modern chrysotile applications.  According to INSERM:
“It is clearly established that the highest risk s of mesothelioma are now in occupations where
conditions of exposure are intermittent … In the 1960s, the main professions affected were theproduction and use of asbestos […] In contrast, in the 1980s and 1990s, the highest risks concernedwork that involved handling materials [i.e . friable materials] containing asbestos.”
357  ( W T O
translation)
3.227  Canada points out that the INSERM report does not look into the question of exposure to
chrysotile fibres during intermittent operations on structures made of chrysotile-cement, such as
sanding, sawing and drilling. INSE RM could only have observed, in accordance with existing studies,
that the emission levels in such cases are extremely low or even non-existent.358 Moreover, structures
made of chrysotile-cement, by their nature, requir e very little maintenance, and when they do, the
fibre emissions can be minimized by observing simp le procedures and safety precautions. Dr. Gibbs
points out that the risks identified by INSERM do not correspond to the values applicable to the
                                                     
 352 RSC, pp.6 and 9 of the English text. According to J. Peto, expressing his opinion of the comparison
between present and past exposure rates: “It might therefore be thought that none of the data that have been
collected permit any truly scientific prediction of the like ly effects of the limits to exposure that have now been
set. This may indeed be the case.” (Doll, R. and Peto, J., Asbestos: Effects on Health of Exposure to Asbestos,
Her Majesty’s Stationery Office, U.K., 1985, p. 44).
353 INSERM report, p.420. See also RSC, p.9 of the English text.
354 As emphasized by the RSC on p.9 of the English text.
355 According to INSERM: “At presen t there are no solid direct epid emiological data that enable an
assessment to be made of the health effects linked to urban passive environmental or building exposures. […]Even without recalling that such studies would have little chance of directly noting a health effect, if it is low, ithas to be recognized that we do not have any reliable epidemiological data.” (WTO translation) (INSERMreport, pp.404 and 405).
356 Académie nationale de médecine (Étienne Fournier), Amiante et protection de la population exposée
à l’inhalation de fibres d’amiante dans les bâtiments publics et privés , Bulletin de l’Académie nationale de
médecine, Vol. 180, no. 4, pp.5 and 9.
357 INSERM report, pp.424 and 400.
358 See in particular the French study of the Laboratoire d’hygiène et de contrôle des fibres minérales :
Baujon et Authier, Détermination des concentrations de fibres d’amiante dans l’atmoshpère lors de la pose sur
chantier de plaques ondulées et d’ardoises en amiante-ciment , Laboratoire d’hygiène et de contrôle des fibres
minérales , Paris, July 1993.  Canada notes that, according to this study, the use of self-boring screws during the
process of installing corrugated panels gives rise to an emission of 0.022 f/ml. Moreover, the installation of rooftiles can give rise to emissions of 0.007 f/ml, depending on the method used. These peak exposure levels, whichare well below the exposure standards in effect in France, can be further reduced by dampening the materials.Furthermore, workers can be protected from inhaling the fibres simply by wearing a mask.WT/DS135/R
Page 92
friction materials industry, nor to the mining, machining or asbestos-cement industries.359  Canada
also refers to the conclusions of the Académie nationale de médecine , which determined that: “[Tr.]
no illness due to asbestos has yet been formally proven in France outside an occupational type of
exposure”.360  These conclusions run counter to those of INSERM and underscore the growing
scepticism with regard to the scientific value of the arguments presented as justification for thebanning of chrysotile. According to Canada, these doubts, in fact, originated in the French scientific
community.
361
3.228  Canada states that, in its risk assessment, INSERM used a linear model that over-estimated
the risks of low exposure. This model offers a method of extrapolating the risk of low exposure to
chrysotile from the risk of high exposure. Canada points out that the epidemiological data, however,
indicate no detectable risk whatsoever deriving from low exposure, as INSERM itself acknowledged
in the case of environmental exposure and indoors exposure to asbestos.362  INSERM admits that to
date, it does not possess “[Tr.] direct and unequivocal scientific expertise on the value of the risk of
lung cancer and mesothelioma that may exist among humans exposed to 1f/ml or lower levels”.363 The
estimates that INSERM arrives at “[Tr.] have to be considered as orders of magnitude given that there
is no definite knowledge regarding the risk of cancer at resulting from exposure to levels below 1 f/ml
[italics in the original].”364 INSERM saw its role as being “ [Tr.] to provide scientifically verified
elements of knowledge concerning the health risks linked to exposure to asbestos, but risk
management is not its responsibility”.365  Nonetheless, INSERM performs extrapolations for low
exposure even though “[Tr.] This extrapolation do es not produce certain scientific knowledge, but
only an aid to understanding the implications for risk management.”366 Canada considers that the
INSERM report, however, as a scientific evaluation of the risks, should be more than “an aid tounderstanding” based on “plausible uncertain estimates”
367 when it leads to the adoption of a Decree
instituting a total ban such as that adopted by France.
3.229  Canada notes that Dr. Dunnigan remarks that “the authors of the report themselves
acknowledge that the methodological basis used to generate risk data at low levels of exposure to
chrysotile asbestos cannot provide ‘certain scientific knowledge’.”368   He considers that:
“the INSERM report alone cannot serve as a sufficiently credible and comprehensive basis on which to
conclude that the only way of protecting the health of workers and of the general public is purely andsimply to ban all varieties of asbestos and all its uses.”
369 (WTO translation)
                                                     
359 Gibbs, p.10.
360 Académie nationale de Médecine  (Étienne Fournier), Amiante et protection de la population
exposée à l’inhalation de fibres d’amiante dans les bâtiments publics et privés , Bulletin de l’Académie nationale
de médecine, Vol. 180, no. 4, p. 4.
361 Canada notes that Dr. Jacques Dunnigan characterizes the limited usefulness of the INSERM report
as follows: “If it was necessary to ban certain uses of chrysotile (for example, friable materials), this is not thecase for other uses of asbestos, in particular chrysotile-cement, in which the fibres are bound in such a way thatthere is practically no risk of emissions at unacceptabl e levels, by using known and proven control techniques.
We believe that monitoring of hygiene and observance of the standard are a better guarantee of protection thanblind use of substitute fibres whose long-term effects are not sufficiently known, as is in fact acknowledged by
the authors of the INSERM report.” (WTO translation) (Dunnigan , p.7).
362 INSERM report, pp.404 and 405.
363 Id.,  226.
364 Id., pp.234, 235, 237 and 238.
365 Id., p.376.
366 Id., p 239 and 414.
367 Id., p. 232.
 368 Dunnigan, p.7. Canada notes that INSERM acknowledges that “the level of occupational exposure
envisaged is 10 to several hundred times lower than that existing in the cohorts on which the risk models wereelaborated”. (WTO translation) (INSERM report, p.233). 
369 Dunnigan, p.7.WT/DS135/R
Page 93
3.230  Canada adds that, citing studies in support of his view, Dr. Gibbs also notes the existence of
exposure levels below which the health risks are undetectable.370  In line with the other criticism, the
RSC notes the error in the conclusions drawn from  the extrapolations of low-exposure risks from
high-exposure risk data:  “the transfer of risk coefficients calculated from high exposure settings […]
involves possible errors”.371  Canada notes that the INSERM conclusions on the risks associated with
low exposure are in sharp contradiction to the most recent scientific publications.
3.231  Canada indicates that one of the consequences of the Decree adopted on the heels of the
INSERM report has been the replacement of chrysotile fibre by substitute fibre. The ban on chrysotile
as the way of managing the risks cannot therefore be viewed in isolation. In this respect, INSERM
reveals that the Decree banning asbestos  could have unsuspected consequences:
“It must be noted that the group of experts was unable or unwilling to consider some key questions
relating to the problem of risks associated with hu man exposure to fibres.  Because of the short time
frame, the health risks associated with exposure to substitute fibres were not addressed […] The
problem [the ban on asbestos] is, however, inextricably linked to the choice of substitute fibres […]
The group of experts considers that it does not have sufficient information to decide on the possibilityof replacing asbestos by a substitute product that is completely without risk in all the situations inquestion.”
372 (WTO translation)
Canada indicates that, after having reviewed the INSERM report, all the experts cited above
concluded that the report is not supported by real, current data relative to the exposure of the French
population to the modern uses of chrysotile. This report cannot be seen as a credible, scientifically
grounded basis for justifying a measure as excessive as the total ban on chrysotile and all its uses.
3.232  Canada points out that, following INSERM’s recommendation on further studies on risks
associated with substitute fibres, INSERM was commissioned to prepare another report, this time on
the health risks of substitute fibres.  The Executive Summary of this report was made public in
June 1998, a surprising 18 months after the ban on asbestos took effect.  As Canada notes373, the
Executive Summary points to the scarcity of data on the substitute fibres and the novelty of their use,
stating that little is known about their effects on hum an health.  It also states that, had experiments on
asbestos been conducted with exposure levels similar to the ones used for testing substitute fibres, it is
likely that the experiments on asbestos would have shown that asbestos poses little, if any, significant
risk.  The full INSERM report on substitute fibres has still not been published, one year after therelease of its Executive Summary.
374  Canada states that, when the WTO consultations were held in
Geneva on 8 July 1998, the EC assured the Canadian delegation that the publication of the full report
was imminent.  In Canada’s view, it increasingly appears that France is more concerned with banning
chrysotile than informing the French population of the danger of substitute fibres, the use of which is
effectively imposed because of the ban on chrysotile.  Canada considers that the telling criticisms ofthe INSERM report by France’s Minister for Education, Mr. Claude Allègre, by the French Académie
nationale de médecine , the Royal Society of Canada, and internationally renowned scientific experts,
cast considerable doubt on whether the INSERM report constitutes a credible basis for so extreme a
measure as a ban on a hitherto widely used product.
3.233  The European Communities emphasize that INSERM ranks among the most important
biological and medical research institutes in the world.  It comprises some 200 research laboratories
                                                     
370 Gibbs, p.10.
371 RSC, p.6 of the English text. The RSC also points to the potential for error associated with the
integration of different measurement techniques (p.6 of the English text). Regarding the evaluation of
measurement techniques, see Camus, M., L’amiante et les risques pour la santé , April 1999, p.4.
372 INSERM report, pp.376 and 428.
373 See paras.3.174 et seq.  above.
374 INSERM report entitled Effets sur la santé des fibres de substitution à l'amiante , published in
November 1999WT/DS135/R
Page 94
employing around 10,000 researchers and covers all fields of biomedical research and all relevant
scientific disciplines. It is a government research body, financed by the French State and placed under
the dual responsibility of the Ministry of Research and the Ministry of Health, and it is totally
independent of economic or other interests linked to the asbestos and substitute fibres industries. In
the EC’s view,  INSERM thus had all the competence and independence required to give a scientificopinion on the threat posed by asbestos to human health.  INSERM’s report was drawn up by
11 scientific experts from various disciplines, who also gave hearings to several other experts. As its
name suggests
375, the report was commissioned by the authorities to provide information on the risks
connected with the main types of exposure to asbestos.  INSERM's mandate was not to make
recommendations on how to combat the harmful effects of asbestos, but to make available the
scientific knowledge necessary for any decision to be taken.  The INSERM report was based on an
analysis of numerous international scientific research projects on the effects of asbestos. The ECemphasize that most of its findings, including all those on which France based its decisions, have been
approved by the international scientific community, including the Panel of the Royal Society of
Canada, which the Canadian Government commissioned to analyse the contents of the report.
3.234  The EC point out that the INSERM report's principal conclusions, especially those on the
carcinogenic nature of chrysotile, the absence of a harmlessness threshold, the importance ofintermittent exposure among end-users of asbestos and the very large number of workers affected by
this type of exposure, have since been confirmed by recent studies and by international bodies such as
the WHO.  The first of its kind in France on the subject of asbestos, the INSERM report comprises a
critical and well-argued review of the international scientific literature. The methodology and scope of
this work (12 chapters of discussion, supported by 1,200 bibliographical references and followed by asummary of some 60 pages) radically distingu ish it from any monograph or fragmentary study
advocating one or other of the theories which have contributed to the debate.  The report itemizes the
main effects which exposure to asbestos is known to have on human health: asbestosis, benign pleural
damage, bronchial cancer and mesothelioma.  Even though 166 new cases were recognized as
occupational diseases in France in 1995, asbestosis is a disease whose most serious forms havebecome rare in industrialized countries as a result of the reduction in levels of exposure.  For this
reason, the Executive Summary focuses on the risk of bronchial cancer and mesothelioma.
3.235  The EC note that the authors of the report drew the following main conclusions:
(a) Most cases of pleural mesothelioma that have emerged to date in industrialized
countries are of occupational or para-occupational origin.  Among the occupations
affected, the cases which now occur involve the handling of asbestos-containing
materials installed in buildings or equipment. The diverse occupations which carry ahigh risk of mesothelioma include welders, dockers, laboratory technicians, painters
and decorators, jewellers, metal workers, car mechanics, railway workers, workers in
thermal power stations, etc.  If the number of deaths caused by mesothelioma is
compared with the number of people in each occupation, it is found that the jobs
which are proportionally most affected are sheet-metal workers (including shipyardworkers) and industrial coachbuilders; then come plumbers, carpenters and
electricians. The building trades alone currently account for one quarter of all deaths
from mesothelioma.  Since the 1950s and 1960s, the number of cases of
mesothelioma has been growing by 5-10 per cent each year, depending on the
country.  In France the growth rate has been 25 per cent every three years; the rate ofseven cases per million inhabitants per year between 1979 and 1981 reached 16 cases
per million inhabitants per year between 1991 and 1993. The number of deaths
caused by asbestos in France in 1996 is estimated by INSERM at some 1,950
(750 cases of mesothelioma and 1,200 cases of lung cancer).  The risks associated
                                                     
375 INSERM, Effets sur la santé des principaux types d’exposition à l’amiante , INSERM joint report,
Paris, INSERM publications, 1997.WT/DS135/R
Page 95
with exposure, which may be occupational or para-occupational (domestic cleaning
of work-clothes worn by workers handling asbestos) or environmental (geological or
industrial in origin), have been incontestably proved. As regards the effects on health
of “passive” exposure in buildings, a risk cannot be ruled out even though the
epidemiological data are not sufficient to demonstrate what that risk is.  As towhether lung cancer can be causally attributed to occupational exposure to asbestos,
the group of experts concluded, on the basis of an analysis of available data, that such
cancer can develop where no prior fibrosis is present .  As regards the role of tobacco,
the group of experts pointed out that the proportion of cases of lung cancer
attributable to asbestos is identical in smokers and non-smokers. In other words, the
fact that a worker who has developed lung cancer smokes does not mean that the
cancer is not due to asbestos.  It follows that, where an individual has been exposed toasbestos and has developed lung cancer, the fact that the person concerned smokes
gives no indication as to the probability of asbestos having had a role in causing the
cancer.
376  This information, fundamental to the recognition of the occupational origin
of diseases, provided justification for the arrangements implemented under the
December 1995 plan.
(b) The group of experts considers that the carcinogenic effects of asbestos fibres cannot
be differentiated according to whether the fibres are of the chrysotile or amphibole
type.  It found that the carcinogenic effects of asbestos fibres marketed under the
designation “chrysotile” were just as serious as the effects of fibres of the amphiboletype, as far as lung cancer was concerned.  As regards the risk of mesothelioma, the
effect of chrysotile fibres is incontestable,  even though less serious than that of
certain amphiboles. The morphological characteristics rather than the geological
origin of the fibres seem to be the decisive factors, with the longest fibres being the
most carcinogenic.  In order to estimate the risk of low levels of exposure(<0.1 fibre/cm
3), INSERM's experts extrapolated to low levels, on a linear basis and
without a threshold, the risks observed at high levels of exposure. This hypothesis
(i.e. that there is a linear relationship between the risk and the level of exposure and
that there is no threshold) is among the theories currently accepted on the subject of
carcinogens and is, for example, included in the ILO encyclopaedia. It is therefore the
most plausible hypothesis.  The estimate is said to be “uncertain” because it is not
based on observations which can validate or invalidate it beyond any doubt.INSERM's expert group estimated, on this basis and in line with knowledge to date,
what additional risk of cancer would arise over a lifetime from continuous exposure
to asbestos in various reference situations, for example:  (i) for 10,000 men aged
between 20 and 65 who are subject to continuous occupational exposure
(1,920 hours) corresponding to 0.1 f/ml or cm
3, the risk is of 30 additional deaths;
(ii) for 10,000 people (half of them men, half women) who are subject to continuous
passive exposure during their school years (between the ages of 5 and 20) and during
their working lives (1,920 hours between the ages of 20 and 65) corresponding to
0.025 f/ml (or 25 fibres per litre), the risk is of nine additional deaths.
3.236  The EC point out that any doubts with regard to the carcinogenicity of chrysotile asbestos
have been removed by the joint report: chrysotile is carcinogenic, just as much as amphiboles when it
comes to lung cancer but less than amphiboles when  it comes to mesothelioma (ratio of 1 to 3 but
same order of magnitude). As regards mesothelioma, this information has been largely confirmed by
the study published by Camus et al.377 on cancer mortality among women living in close proximity to
chrysotile asbestos mines in Quebec. This study shows a net excess of mesothelioma cases (the risk is
                                                     
376 Document on the link between tobacco and asbestos.
377 Camus M. et al. , Non-occupational Exposure to Chrysotile Asbestos and the Risk of Lung Cancer ,
New England Journal of Medicine, 1998, vol.338, no. 22: pp.1566-71.WT/DS135/R
Page 96
at least seven times higher than among women living elsewhere in Quebec).  Moreover, low doses do
have an effect.  The limit of 0.1 f/ml or cm3 therefore corresponds to a not negligible risk of 30 extra
cancer cases per 10,000 people exposed. The values above which work must be carried out to protect
populations (25 fibres per litre) carry a theoretical residual risk of nine extra cases of cancer per
10,000 people exposed. The EC indicate that this figure should be compared with the level of riskwhich is usually recognized as applying to the population in general, namely one extra case of cancer
per 1 million people.  The risk population is large.  For 1996, the report gave an estimate of
1,950 deaths due to asbestos (750 cases of mesothelioma and 1,200 cases of lung cancer).  The vast
majority of mesothelioma cases are of occupational or para-occupational origin. However, a new
aspect which emerged during the period 1980-1990 was that it was no longer those working in the
asbestos industry (i.e. asbestos production and proce ssing), who were most at risk. The highest risk is
now observed among people handling asbestos-con taining materials (e.g. sheet-metal workers,
industrial coachbuilders, plumbers, carpenters, electricians, heating engineers and cable specialists).
The EC emphasize that the population concerned comprises all finishing trades in the construction
industry, as well as a good number of other occupations, in other words, several million people, of
whom (despite a low individual risk) a large number will contract mesothelioma.  The French study
recently published by INSERM
378 shows that around 25 per cent of men born between 1930 and 1939
have been exposed to asbestos during their working life.
3.237  The EC consider that procedures for controlled use cannot be implemented effectively when
hundreds of thousands of people are exposed daily in sectors with little supervision as regards health
and safety, such as the building industry, which accounts for at least 25 per cent of mesothelioma
cases. The study by Y. Iwatsubo379 confirms that in France most cases of mesothelioma occur among
servicing and maintenance workers. The EC therefore consider that the principle of “controlled use”
cannot be applied to the diffuse risks affecting a range of very varied trades practised in extremely
diverse situations and involving in particular servicing and maintenance work, where it is not possible
to implement rules on “safe use”.  The EC point out that Canada itself acknowledges the limits of
controlled use since it recognizes that certain applications have to be prohibited where exposurecannot be controlled.
3.238  The EC note that “safe” use is not a guarantee even when it is practised.  Safe use is contested
in two quite official publications:
(a) A study conducted by the Quebec Workers’ Health and Safety Commission (CSTT).
This study shows that the risk of mesothelioma increased steadily in Canada between1967 and 1990, principally among servicing and maintenance workers. Of the
120 cases of mesothelioma identified in the study, 49 were miners and mill workers,
50 were workers in the asbestos industry and 21 were servicing and maintenance
workers. Of the 25 per cent of these cases which involved short exposure, the most
affected group were the servicing and maintenance workers.  The study shows thatthe occurrence of mesothelioma is indeed due to chrysotile asbestos and that the
incidence of the disease is growing more rapidly in the servicing and maintenance
sector.  This shows that, even in Canada, which specializes in safe use, the efficacy of
the method remains to be proved. The EC note that, despite the existence of this
CSTT study, the Canadian party declared during the consultation meeting held on8 July 1998 that it did not have any study at its disposal which covered the servicing
and maintenance sector.
380
                                                     
378 Goldberg M. et al., Past Occupational Exposure to Asbestos among Men in France , Scandinavian
Journal of Work and Environmental Health, 1999 (in press).
379 Iwatsubo, Y. et al. , Pleural Mesothelioma: Dose-Response Relation at Low L evels of Asbestos
Exposure in a French Population-Based Case Control Study , American Journal of Epidemiology, 1998.
380 Bégin, R. et al.,  Work-Related Mesothelioma  in Quebec, 1967-1990 ,  American Journal of Industrial
Medicine, vol.22, 1992, pp.531-542.WT/DS135/R
Page 97
(b) an HSE study381, mentioned in the annex to the report produced for Canada's Royal
Academy in 1996 following the publication of the INSERM report. It shows that
despite strictly controlled use - it focuses exclusively on production workers -, there
was still a 1.28 per cent excess of mesothelioma cases, as opposed to 4.61 per centamong people who had worked prior to 1969, when legislation was introduced in
Great Britain. From this it can be concluded that controlled use does not prevent
deaths from mesothelioma, even in specific sectors of industry employing limited
numbers which are easy to regulate and control.
3.239  The EC point out that the confirmed carcinogenicity of chrysotile and the impossibility of
controlling the risk in all situations prompted th e French Government to stop the risk spreading by
applying the principle laid down at European Union level for carcinogenic risks and also
recommended by the WHO
382 and the ILO383:  replacement by a less dangerous product where
technically possible. The European Union, in its general Directive on the health and safety of workers,
lays down the principle that a dangerous agent or process should be replaced by a safe or a less
dangerous agent or process where one exists. As regards cancer risks, the Community Directive oncarcinogens
384 contains the same principle in that it expressly provides for the replacement of a
carcinogen by a less dangerous substance where this is technically possible.  The WHO press release
of 26 July 1996 states that safe substitutes should be used to replace chrysotile whenever this is
possible. Moreover, in a “criterion document” dating from September 1998, the WHO states that the
risk is probably higher among construction workers and perhaps also among other user groups.  TheILO Encyclopaedia of occupational health and safety states that the most effective means of
prevention is to avoid the use at the workplace of substances which are recognized as causing cancer
in humans.
3.240  The EC assert that the INSERM report thus confirmed the necessity of the measures taken in
1996 in accordance with the guidelines adopted in July 1995. It also provided additional information,on the basis of which the French Government took a coherent set of further measures.  The
manufacture, import, export and sale of asbestos-containing products, including asbestos-cement,
were prohibited with effect from 1 January 1997.  This decision was enacted in the form of Decree
No.96-1133 of 24 December 1996 laying down a general prohibition on asbestos to apply as of
1 January 1997. Asbestos-cement products were banned totally. A few very limited and strictly
regulated exceptions are allowed for industrial uses where no substitute product would ensure the
safety of workers and users.  The purpose of the ban is to stop the spread of the risk posed by themanufacture and marketing of asbestos-containing pr oducts, in other words to prevent the “inflow”.
The EC emphasize that, contrary to the impression given by Canada, there was never any intention of
promoting the systematic removal of asbestos already present.   The prohibition measure is based on
reasoning similar to that followed by Canada when it banned amphiboles
385: the aim is to replace a
dangerous agent by agents considered less dangerous on the basis of available scientific knowledge.The measure was taken at a time when the Groupe scientifique pour la surveillance des atmosphères
de travail (G2SAT), working under the Senior Council fo r the Prevention of Occupational Risks, had
already produced a report setting out the hierarchy of the risks from the most suspect replacement
fibres (mineral wools and ceramic fibres).  Following the prohibition of asbestos, a redundancy
programme was needed to assist companies forced  to reduce their staff as a result of ceasing to
                                                     
381 Hutchings, S. et al., Asbestos-Related Diseases , Occupational Health Decennial Supplement,
London, Health and Safety Executive, 1996, pp.127-152.
382 Chrysotile Asbestos evaluated by Health Experts , Press Release 51 of 26 July 1996, WHO.
383 Encyclopedia of Occupational Health and Safety , 4th edition 1998, ILO, Geneva (Chapter 2 by
P. Boffeta, pp.2 and 3). This concept has been in the Encyclopedia since the 1983 version.
384 Directive 90/394/EEC of 28 June 1990 on the protection of workers from the risks related to
exposure to carcinogens at work.
385 See para.3.54 above.WT/DS135/R
Page 98
manufacture asbestos-based products. Three firms were affected: of a total of 1,370 employees,
490 found themselves surplus to requirements but 400 of them qualified for early retirement. One
establishment employing 126 people was closed.
3.241  The EC indicate that the authorized exposur e threshold, applicable to the manufacture of
products containing chrysotile, was brought down to 100 fibres per litre (as opposed to 300, the limitwhich was originally to apply until 1 January 1998).  Since 1994, the limit for occupational exposure
in the United States has been set by the Occupational Safety and Health Administration at
0.1 fibre/cm
3 (or ml).  France adopted the same value in 1996 since it was the lowest limit value
obtained by phase-contrast optical microscopy. A lower value would have required the replacement of
all existing measuring equipment.386 This provision was designed to reduce further exposure to the
inhalation of asbestos dust in manufacturing or pr ocessing plants which qualified for an exemption.
3.242  The EC explain that a certification procedure by an accredited organization was introduced at
the beginning of 1997 for firms called upon to remove or to contain asbestos.  This procedure makes it
possible to verify the quality of the work carried out and the quality of the measures taken to protect
the health of the workers.  The certificate is issu ed following a study carried out within the company
to investigate working methods, the training provided for managers and workers, and the equipmentavailable; the study is followed by an on-site audit to assess the quality of actual practice.  Since the
summer of 1997, companies have only been allowed to carry out the removal of “friable” asbestos
(such as flocked asbestos or lagging) if they possess a certificate qualifying them to do so. The aim of
this measure is to tighten up the management of the serious risks involved in asbestos removal
(especially removal of flocked asbestos).  The surveillance measures applicable to flocked asbestosand lagging have been extended to false ceilings.  The EC emphasize that at no time was it planned, as
in the United States, to call for the systematic re moval of all asbestos. On the contrary, information
was widely circulated stating that a higher risk c ould be created if asbestos were removed too quickly
or in the wrong circumstances.
3.243  The EC point out that technological and scientific monitoring was stepped up.  Two measures
were adopted: (i) epidemiological monitoring of mesothelioma cases was introduced, with the
assistance of INSERM, in order to ascertain the conditions in which tumours appear and to measure
the actual risks of exposure;  and (ii) INSERM was asked to produce a joint experts’ report on the
risks linked to the fibres used as substitutes for asbestos.  The EC note that, in any event, the use of
replacement products classed as dangerous is subject to legislation on chemical hazards (obligation to
conduct risk assessment and protect workers, recommended limit values, etc.).  If the replacementproducts are classed as carcinogens, the rules are even stricter and the principle of replacement by a
less dangerous product where technically possible applies.
C. 
LEGAL ARGUMENTS
3.244  The European Communities  claim that, according to the general procedural rule applicable
to the settlement of disputes, first spelled out by the Appellate Body in its report on United States –
Measure affecting Imports of Woven Wool Shirts and Blouses from India387, and since restated on
several occasions388, it is for the complaining party to establish inconsistency with a provision of a
WTO Agreement before the burden of proving consiste ncy with that provision shifts to the defending
party.  In this instance, Canada has not produced any convincing evidence to show that the contestedmeasure infringes any of the provisions invoked.  In particular, Canada has not produced any evidence
                                                     
386 The EC note that the average concentration of asbestos fibres in the air inhaled by workers is
measured over eight hours.
387 Report adopted on 23 May 1997, WT/DS33/AB/R, p.14 of the English text.
388 See in particular EC Measures concerning Meat and Meat Products (Hormones) , Report of the
Appellate Body, WT/DS26/DS48/AB/R, adopted on 13 February 1998, para.104.WT/DS135/R
Page 99
that so-called “safe” use offers a feasible and reliable way of protecting the health of all those
affected.
1. Agreement on Technical Barriers to Trade (“TBT” Agreement)
(a) Applicability of the TBT Agreement
3.245  Canada contends that the main objective of the TBT Agreement is to prevent technical
regulations and standards from creating unnecessary barriers to international trade. Canada also
recognizes the right of Members to take the necessary measures to ensure the protection of people’s
health and lives.  According to Canada, the Decree is subject to the disciplines of the TBT Agreement
and is incompatible with its Article 2.2, 2.4, 2.8 and 2.1.  More specifically, the Decree is an
unnecessary barrier to trade.  It is neither based on existing international standards nor on the
performance of asbestos fibres and products containing such fibres. Finally, the Decree prevents theseproducts being imported into the French market a nd is discriminatory in the domestic market with
respect to these same imported products.
3.246  Canada contends that the TBT Agreement applies to the Decree because it is a “technical
regulation” within the meaning of Annex 1 to the TBT Agreement. The Decree is a technical
regulation because it considers all asbestos fibres and all materials, products or devices that containsuch fibres, with the exception of four, as products that are supposed to pose risks for people’s health
and safety.  The Decree prohibits all chrysotile products for which there is a substitute that represents
“a lesser occupational health risk than chrysotile fibre” and which, for the purposes of the end-use,
gives “technical guarantees of safety” equivalent to the guarantees for chrysotile fibre.  More
specifically, the Decree is a technical regulation because it contains several aspects of the abovedefinition. It is a document that sets forth a characteristic of a product, a process and a production
method for a product, and administrative provisions applicable to a product. The document also deals
with labelling requirements.  Moreover, compliance with the contents of the document is mandatory.
3.247  According to Canada, the ordinary meaning of the word document is “anything … written …
relied upon to record or prove something”.
389  The Decree contested is something written, i.e. a
general administrative instrument issued by the Executive and designed to make the public aware of
the Government’s decision to consider unacceptable any risk of exposure to all varieties of asbestos.
The Decree was issued by the French Prime Minister.  It was published in the Official Journal of the
French Republic. It is therefore a document, in accordance with the definition.  The ordinary meaning
of the word “characteristic” is “that which constitutes a recognizable distinctive feature”.390  The
Decree describes a recognizable distinctive feature of the products. In fact, in accordance with its
purpose, which is to ban asbestos totally, the main provisions of the Decree are designed to prohibitasbestos fibre, regardless of whether it is amphibole fibre or chrysotile fibre, in the manufacturing and
processing of materials, products and devices that are placed on the French market. The characteristic
of these materials, products and devices, as laid down in the Decree, is the absence of asbestos fibres.
The Decree refers in particular to the processing of all varieties of asbestos fibres, whether or not
included in materials or products.  By so doing, it imposes restrictions on the processes andproduction methods related to asbestos fibres, including chrysotile fibres.  On an exceptional and
temporary basis, chrysotile fibre is permitted in the manufacturing and processing of four products, if
there is no supposedly less harmful substitute fibre.  Moreover, the Decree stipulates that these
manufacturing and processing activities are subject to the standards governing exposure to asbestos
dust in places of business.
391  With respect to the aspects in the second part of the definition, Canada
                                                     
389 Dictionnaire Robert , (Robert French Dictionary ), 1993 edition.
390 Id.
391 Article 4 of the Decree. This incorporates and refers back to Decree No.96-97 of 7 February 1996
concerning the protection of the population against the health risks associated with exposure to asbestos in
buildings.WT/DS135/R
Page 100
points out that the Decree includes administrative provisions applicable to products which,
exceptionally, contain chrysotile fibre.  In Article 3, the Decree provides for a sophisticated
declaration mechanism for the purpose of obtaining an exemption from the ban on asbestos.392  The
Decree also deals with the labelling requirements for a product.  It sets out rules for labelling
chrysotile-containing products that are covered by a temporary exemption from the ban.393  Finally,
with respect to the mandatory aspect of the document,  it is prescribed that all the above provisions of
the Decree are binding. Compliance with the characteristics of the products and their related processes
and production methods, as well as with the applicable administrative formalities, is mandatory.
Article 5 provides for the penalties applicable in the event of a breach.
3.248  Canada claims that the fact that the Decree qualifies as a technical regulation under the TBT
Agreement is confirmed in France’s notification to the Committee on Technical Barriers to Trade.
France gave notice of the measure it took pursuant to Article 10.6 of the TBT Agreement on21 February 1997.
394  It also recognized the applicability of the TBT Agreement in the notification
document.  According to Canada, the EC also reco gnized the applicability of the TBT Agreement in
the justification given pursuant to Article 2.2 thereof.395  They maintained that the Decree was not
more trade-restrictive than was necessary in order to  fulfil legitimate objectives, i.e. the protection of
human health and safety, taking account of the risks non-fulfilment would create.  Finally, at theconsultations on 8 July 1998, in his opening statemen t, the representative of the EC conceded the
applicability of the TBT Agreement to the French measure. The relevant passage is as follows:
“The only relevant provisions therefore seem to be those of the TBT Agreement.  It is for that reason,
indeed that the EC notified the French measures as technical regulations under the TBT Agreement.”396
3.249  Canada concludes that, by describing the characteristics of the products, by specifying the
related processes and production methods, by setting up a declaration mechanism for the purpose of
obtaining exemptions from the ban on asbestos, by the labelling provisions for chrysotile-containingproducts covered by an exemption, as well as by its mandatory nature, the Decree banning asbestos
falls within the meaning of  “technical regulation” under Article 1 of Annex 1 to the TBT Agreement.
According to Canada, the EC themselves recognized the applicability of the TBT Agreement in
official documents to the WTO and during the consultations which preceded the establishment of the
Panel.
3.250  The European Communities  maintain that the Agreement on Technical Barriers to Trade
(TBT) does not apply to the Decree.  Even if the Panel were to consider that the TBT Agreement isapplicable, the EC maintain that the Decree is no t incompatible with the provisions of the said
Agreement.
3.251  The EC claim that, contrary to Canada's ar gument, the Decree cannot be construed as a
“technical regulation” within the meaning of the TBT Agreement, which does not cover generalprohibitions on the use of a product for reasons to do with the protection of human health.  In order to
interpret the provisions of this Agreement correctly, it should be remembered that the “customary
rules of interpretation of public international law”, in particular those arising out of the 1969 Vienna
Convention on the Law of Treaties, must be used to  interpret the provisions of the General Agreement
and of the WTO Agreement.  Those rules call for an examination of the ordinary meaning of the termsof a treaty, read in their context and in the light of the object and purpose of the treaty considered.
                                                     
392 Order of 24 December 1996 on the declaration form for exemptions from the ban on asbestos.
393 Article 4 of the Decree. This incorporates and refers back to Decree No.88-466 of 28 April 1988
concerning products containing asbestos.
394 Notification G/TBT/Notif. 97.55, 21 February 1997.
395 European Commission, Directorate General III (Industry), Office A,  “Industrial Policy”, Unit
III/A/1 “International indust rial relations", Document III/A/1/MPP/CR/amp/fcanada (dated 15 April 1997), p.2.
 396 Opening statement by the representative of the European Communities at the consultation held in
connection with this case, Geneva, 8 July 1998 (document submitted to the Panel by Canada).WT/DS135/R
Page 101
The Appellate Body has indicated in this regard that “A treaty interpreter must begin with, and focus
upon, the text of the particular provision to be interpreted. It is in the words constituting that
provision, read in their context, that the object and purpose of the states parties to the treaty must first
be sought.”397  Therefore, an interpreter is not free to adopt a reading that would result in reducing
whole clauses or paragraphs of a treaty to redundancy or inutility.398
3.252  The EC contend that the TBT Agreement does not cover general prohibitions.  It follows from
the preamble (notably the third and fifth paragraphs), from the background to the TBT Agreement and
from the actual wording of several of its provisions that the fundamental objective of this Agreement
is to monitor the adoption and application of the “standards” and “technical regulations” that cover the
detailed characteristics of products or their methods of production.  The TBT Agreement could, for
example, be applied to monitor a “technical regula tion” that set a minimum resistance level for seat
belts. Another example would be a “technical regulation” that laid down percentages for ingredients
in chocolate and prescribed methods of production. On the other hand, it is not the object and purpose
of the TBT Agreement to deal with general prohibitions such as that applied by the French Decree to
asbestos and asbestos-containing products.  According to the EC, this specific object and purpose of
the TBT Agreement can be seen clearly in Annex 1 thereto, which gives the definition of what shouldbe understood by “technical regulation”:  “Document which lays down product characteristics or their
related processes and production methods …”.   In this specific case, the definition means that the
TBT Agreement cannot apply to the Decree.  It follows from the above definition that a technical
regulation is a document which lays down the characteristics or processes and production methods
with which a specific/identified product must comply, in particular if it is to be released for freecirculation on a given market.
3.253  The EC claim that the definition of technical regulation should not therefore apply to
prohibition measures that cover all products in general.  These products should continue to be covered
by the General Agreement alone.  To adopt any other approach would be equivalent to nullifying theeffect of certain provisions of the GATT, in particular Articles I and III, which are applicable in cases
of general prohibitions.  The TBT Agreement must be considered as the specific application of the
principles of the GATT 1994 to technical regulations.  In the EC’s view, it is inconceivable that the
negotiators of the TBT Agreement wished it to apply in every case to Members’ regulatory measures
affecting products, and in particular to general prohibition measures.  The position of the EC is fully
supported by the position taken by other Members and other Panels.  The Panel report on
United States - Gasoline  noted that:
“The United States argued that the TBT Agreemen t had been designed to elaborate on the disciplines
of Article III of the General Agreement for a very sp ecific subset of measures (technical regulations,
standards and conformity assessment procedures).  The fact that a measure was in writing, mandatoryand applied to products did not make it a technical regulation.  Excise taxes, for instance, met all these
criteria but were not ‘technical regulations’. Similarly, the term ‘technical regulation’ was not so broad
as to cover all government regulatory actions affecting products.  For example, government regulationsrequiring factory smokestacks to have devices to reduce emissions were not technical regulations,though they were in writing, mandatory and specified ‘characteristics’. [....] The United Statesconcluded that the complainants were interpreting the term ‘technical regulation’ out of context andsuch an interpretation, if accepted, would introduce into the TBT Agreement many measures which
were in fact not intended to be covered.”
399
                                                     
397 United States – Import Prohibition of Certain Shrimp and Shrimp Products (hereinafter
United States – Shrimps ), Report of the Appellate Body, WT/DS58/AB/R, adopted on 6 November 1998,
para.114.
398 United States – Standards for Reformulated and Conventional Gasoline , (hereinafter United States –
Gasoline ), Appellate Body and Panel Report, WT/DS2/9, adopted on 20 May 1996.
399 United States – Gasoline , Appellate Body and Panel Report, WT/DS2/9, adopted on 20 May 1996,
para.3.77.WT/DS135/R
Page 102
3.254  The EC claim that the French Decree is not a “technical regulation” within the meaning of the
TBT Agreement.  The Decree, taken as a whole, is a general ban on asbestos fibres and asbestos
products.  The prohibition applies to production, processing, importation, exportation, disposal,
supply, sale, and marketing.  The Decree specifies neither the characteristics nor the production
processes and methods for asbestos fibres, asbest os-containing products nor the products exempted
from the prohibition measure.
3.255  The EC contend that the Decree does not lay dow n “product characteristics”.  The EC fully
agree with Canada’s conclusion that the Decree constitutes a document, but they are surprised by
Canada’s choice of a definition for the word “characteristic”.  According to the very Robert dictionary
on which Canada's argument is based, the word “characteristic” may be used either as an adjective or
a noun.  The first definition given by Canada (“which constitutes a recognizable distinctive feature”)
is the definition corresponding to the adjective.  On the other hand, the second definition (that whichserves to characterize) given by Robert , and strangely forgotten by Canada, specifically corresponds
to the noun.  It is on the latter definition that the Panel should base its analysis because, in the above-
mentioned definition in Annex 1, the word “characteristic” is used as a noun and not as an adjective.
In the light of this definition, the French Decree cannot be regarded as “laying down product
characteristics”.  The EC note that Canada maintains that the characteristic is “the absence of asbestosfibres” and that the products covered are “materials, products and devices that are placed on the
French market”.  However, the EC do not consider that in the French measure the words “the absence
of asbestos fibres” serve to characterize products placed on the French market because “the absence of
asbestos fibres” does not constitute a characteristic, much less the characteristic of products placed on
the French market.  One of the critical weaknesses of Canada's argument lies in the fact that it haseliminated the existence of a possessive phrase, as denoted by the word “of”, between “the
characteristics” and “a product”.  For the Decree to be able to lay down the “characteristics” of a
product, it would have in one way or another to designate the product(s) to which the said
“characteristics” relate.  The Decree does not designate any product but lays down the principle of
prohibition.  It follows that the contested measure cannot be examined on the basis of the TBTAgreement as it has general scope and does not concern any specific product whose characteristics are
spelled out in the French Decree.  In the light of the foregoing, for the EC it is clear that the Decree
does not lay down the “characteristics” of asbestos fibres but simply prohibits their use on French
territory.  It is equally clear that the Decree does not lay down the “characteristics” of
asbestos-containing products.  Nor does the Decree define the technical characteristics of the
products, which may enjoy an exemption from the general prohibition laid down.  Such products may
or may not contain asbestos.
3.256  The EC assert that the Decree does not lay down “production processes and methods relating
to a product”.  The term “process” may be defined as a “means, a practical method of doing
something, of obtaining a result”.
400  The term “method” may be defined as a “logically ordered set of
principles, rules or stages making it possible to reach a result”.401  The Decree does not lay down any
means or ordered set of rules governing the production (extraction and processing) of asbestos fibres.
The prohibition applies to asbestos fibres, so it is not possible to say how they should be produced
because they may no longer be produced.  The same is true of asbestos-containing products.  In terms
of the definitions given for production “process” and “method”, the Decree does not specify any
means nor lay down any ordered set of rules governing the manufacture of asbestos-containingproducts. It merely bans any type of asbestos-containing product. In other words, the prohibition
applies to asbestos-containing products, and nothing is said about how they should be produced.  Nor
does the Decree define the production processes and methods for the products that may be exempted
from the general ban.  Such products may or may not contain asbestos.  The EC therefore conclude
that the Decree is not a technical regulation within  the meaning of the TBT Agreement, neither for
asbestos fibres nor for asbestos-containing produc ts, nor even for products enjoying temporary
                                                     
400 Larousse  French dictionary.
401  Id.WT/DS135/R
Page 103
exemptions.  This conclusion follows logically from the object and purpose of the TBT Agreement,
which is not to cover general prohibition measures.
3.257  According to the EC, the fact that France has notified the Decree to the Committee on
Technical Barriers to Trade in no way prejudges the applicability of the Agreement.  The Decree wasnotified, in good faith, for the sake of transparency vis-à-vis all the Members of the WTO and in
response to repeated requests by Canada.  Any other interpretation would create additional obligations
for WTO Members and would induce them to discontinue, or at least reduce, notifications of their
general legislation to WTO Committees.  According to the EC, Members must therefore continue to
notify their legislation, without notification as such having any legal consequences for the status of
the measure concerned or entailing any obligations to which Members are not normally held.
3.258  Canada  reiterates that the TBT Agreement applies to the Decree and claims that the EC’s
interpretation, based on Article 31 of the Vienna Convention on the Law of Treaties, is incorrect.  In
this regard, Canada points out that the three thir d parties to the dispute unanimously recognize the
applicability of the TBT Agreement in this case.  The EC are therefore alone in disputing its
applicability.  Canada maintains that the EC’s interpretation is not based on Article 31 of the ViennaConvention and the Decree falls specifically within the scope of the TBT Agreement because it
represents the type of measure covered by the definition of “technical regulation” in Annex 1 to the
Agreement.  Including general prohibitions within the scope of the TBT Agreement is not contrary to
either its object or its purpose, which are to prevent technical regulations and standards from creating
unnecessary obstacles to international trade.
3.259  Canada claims that the EC depart from the ordinary meaning of the terms of the definition of
“technical regulation” and refer to the preamble and history of the TBT Agreement to assert that its
object and purpose are not to deal with general product prohibitions, but to lay down the
characteristics or processes or production methods which a specific product must meet.  This
distinction made by the EC between prohibitions that apply to all products without distinction and
measures aimed particularly at a specific product is not supported by the TBT Agreement.  There is
no provision which stipulates that general prohibitions do not fall within the scope of the TBT
Agreement.  The EC’s interpretation of Annex 1 to  the Agreement is contrary to the principle of
effectiveness.
402  According to this principle, a treaty must be given the interpretation which renders it
meaningful and effective, rather than that which would render it ineffective.  However, in Canada’s
view, the consequence of the EC’s interpretation w ould be that it would suffice to give a measure
intended to hinder trade the form of a general prohibition in order to allow that measure to evade thedisciplines of the TBT Agreement.  Thus, as the United States notes, by manipulating the form of a
measure, it would be possible to render the TBT Agreement ineffective.  Contrary to what the EC
claim, their interpretation in such circumstances is not supported by the precedents.  The excerpt from
the Panel Report in United States – Gasoline  cited by the EC does not relate to a position taken by the
Panel but rather to an aspect of the American arguments in this case.  The Panel that examined thiscase never sanctioned this American claim and did not discuss it.  Furthermore, this excerpt, cited out
of context, is contradicted by the position expressed by the United States in this dispute.  In
interpreting the TBT Agreement as applying only to a description of characteristics or of processes
and production methods specific to a particular product and not to general prohibitions that apply to
any product without distinction, the EC take into account only one part of the provisions of theDecree, in this case those concerning the ban on asbestos, and fail to mention the transitional
provisions.  However, in Canada’s view, in order to determine whether the Decree satisfies the criteria
of the definition of “technical regulation”, all its provisions must be examined, both those concerning
the ban on asbestos and those dealing with exceptions to this ban.
                                                     
402 United States – Gasoline , Report of the Panel, WT/DS2/R, adopted on 20 May 1996, Japan – Taxes
on Alcoholic Beverages , Report of the Panel, WT/DS8/R, WT/DS10/R, WT/DS11/R, adopted on
1 November 1996, para.6.22.WT/DS135/R
Page 104
3.260  Canada maintains that the Decree is a “technical regulation” as this expression is defined in
Annex 1 to the TBT Agreement.  Five of the elements of the definition of a “technical regulation” are
found in the Decree.  These are:  (i) a description of the characteristics of a product, including by the
negative;  (ii) a description of the related processes and production methods;  (iii) a description of the
administrative provisions which apply to a product;  (iv) the marking or labelling requirements whichapply to a product; and (v) mandatory compliance.
3.261  Firstly, Canada points out that the term “characteristic” means “a distinguishing trait, quality
or property”.
403  In this sense, the Decree describes a distinctive characteristic of a product.  Indeed, in
accordance with its objective, which is to prohibit asbestos totally, the main provisions of the Decree
are intended to prohibit asbestos fibres, regardless of whether they are of the amphibole or chrysotile
variety, in the manufacture and processing of mate rials, products and devices marketed in France.
The characteristic of these materials, products or devices, in whose manufacture and processingasbestos fibre may not be incorporated, is thus laid down in the Decree.  This characteristic is that no
product shall contain asbestos.  Secondly, the Decree also covers the processing of all types of
asbestos fibres, whether or not they are incorporated  in materials or products.  In so doing, it imposes
restrictions on processes and production methods involving asbestos fibres, including chrysotile
fibres. The principle of a total ban is accompanied by a limited number of exceptions.  Chrysotilefibres are permitted in the manufacture and processing of products when no substitute fibre deemed
less harmful exists.  The Decree stipulates that the manufacture of chrysotile-based products is subject
to the standards of exposure to asbestos dust in buildings.
404  Hence, the Decree lays down a
production process for products containing chrysotile as defined by the EC.  Thirdly, by instituting a
reporting mechanism to obtain or maintain an exemption from the ban on asbestos, the Decreespecifies the administrative provisions applicable to products.  Canada considers that the EC confirm
this point when they describe in detail the registration procedure under the annual reporting process in
the context of exemptions from the ban on asbestos.  Fourthly, the Decree also deals with
requirements regarding marking or labelling of a product.  It sets out labelling standards for
chrysotile-based products that are the subject of a provisional exemption from the ban.
405  Fifthly,
compliance with the main provisions of the Decree is mandatory.   Products which are marketed in,
offered for sale in or imported into France must not contain asbestos.  Compliance with the ban on
asbestos is mandatory, unless the public authorities agree to grant a waiver, in which case compliance
with the terms and conditions of the exception are mandatory.  Fines are applicable in case of non-
compliance.
3.262  Canada claims that, by notifying the Committee on Technical Barriers to Trade, the EC
recognized that the Decree is a technical regulation and consequently the TBT Agreement applies.406
Furthermore, the EC provided the Committee on Technical Barriers to Trade with a justification of
the Decree based on the disciplines of Article 2.2 of the TBT Agreement.407  The EC certainly
considered this Committee the competent forum to re ceive the notification and the justification.  The
EC’s most recent official statement concerning the applicability of the TBT Agreement was made
during the consultations of 8 July 1998, when the representative of the EC stated that the provisions ofthe TBT Agreement were the only provisions invoked by Canada that seemed relevant to contesting
                                                     
403 Canada notes that the EC try to show that the Decree does not define the characteristics of a product
because Canada made a mistake by citing the definition of the adjective rather than the noun “characteristic”.
Having made the necessary correction, this in no way alters the sense of Canada’s argument.
404 Article 4 of the Decree.  This incorporates and refers back to Decree No.96-97 of 7 February 1996
concerning the protection of the population against the health risks associated with exposure to asbestos inbuildings.
405 Article 4 of the Decree.  This incorporates and refers back to Decree No.88-466 of 28 April 1988
concerning products containing asbestos.
406 Notification G/TBT/Notif.97.55, 21 February 1997.
407 European Commission, Directorate General III (Indu stry), Directorate A, Industrial Policy, Unit
III/A/1 Industrial aspects of international trade relations, Document III/A/1/MPP/CR/amp/fcanada (dated
15 April 1997), p. 2.WT/DS135/R
Page 105
the Decree.408  Canada concludes that, in the light of the foregoing, it is clear that the Decree is a
“technical regulation” and, therefore, subject to the TBT Agreement.
3.263  The European Communities contend that the TBT Agreement does not cover general
prohibitions.  A measure cannot fall within the TBT Agreement unless it satisfies, in particular, the
definition of “technical regulation” contained in Annex 1 to the Agreement. The fact that thedefinition of “technical regulation” is narrow is not a matter of chance, but signifies that the authors
intended to limit the scope of the Agreement. This is equally apparent from the text of Article 1.2 of
the TBT Agreement itself.  The object and purpose of the TBT Agreement, like that of the TBT
Agreement of 1979, is to “further the objectives of the GATT 1994” (second preambular paragraph)
in the fields of standardization and conformity asse ssment in order to ensure that technical regulations
and standards do not create unnecessary obstacles to international trade (third and fifth preambular
paragraphs).  According to the EC, it follows from the above that the purpose of the TBT Agreementis to deal with technical regulations and standards.
409  It is not to solve market access problems linked
with general prohibitions.  However, this does not result in a legal vacuum for measures of this type
inasmuch as they continue to be covered by other legal provisions, in particular Article III of the
GATT.
3.264  The EC maintain that the Decree does not fall within the scope of the TBT Agreement.  As far
as asbestos fibres are concerned, it is not the purpose of the Decree to lay down the characteristics of
asbestos or of processes and methods of asbestos production.  The Decree purely and simply bans
asbestos as a product or a raw material.   As far as other products are concerned, the Decree means
that they may not contain any asbestos.  This, however, would not be enough for the Decree to be
equated with a “technical regulation” within the mean ing of the TBT Agreement.  In fact, where these
products are concerned, the EC emphasize that the Decree does not identify the products that must not
contain asbestos.  All products, without more precise identification, are subject to the ban.  This
applies both to cement and to any other product (for  example, tennis rackets).  Furthermore, the EC
repeat that the Decree is not concerned with the characteristics of other products (whether or notcontaining asbestos).  In fact, the horizontal prohibition on incorporating asbestos in products has the
effect of prohibiting, on French territory, products that contain asbestos.  The general prohibition
eliminates these products from the French market.  A technical regulation, on the other hand,
presupposes that the product concerned can always be supplied on the market.  This is comparable,
for instance, to a situation where a domestic law prohibits in general and without discrimination the
production, importation and use of drugs, alcohol, etc. on grounds of public health.  The EC note that
even Canada does not dispute the fact that the declared objective of the Decree is to protect humanhealth;  Canada only disputes the existence of a risk in this case, not the intention of the French
authorities to protect human health.  Thus, in the EC’s view, it cannot be maintained that the Decree
lays down the characteristics of a product which no longer exists.  The same applies to the production
processes and methods for the product, which are linked to its characteristics.  The Decree does not
lay down production processes and methods for a product which no one any longer has the right tomanufacture.
3.265  The EC therefore reaffirm their conclusion that the TBT Agreement is not applicable to a
measure imposing a general ban on a product, in this case asbestos and asbestos-containing products.
                                                     
 408 Opening statement by the representative of the European Communities at the consultations held in
connection with this case, Geneva, 8 July 1998 (document submitted to the Panel by Canada).
409 The EC note that, on its Web site www.wto.org/eol/e/wto03/wto.3_5.htm , the WTO describes a
“technical regulation” as follows:
“Technical regulations and standards set out specific characteristics of a product – such as its size,
shape, design, functions and performance, or the way it is labelled or packaged before it is put on sale.In certain cases, the way a product is produced can affect these characteristics, and it may then provemore appropriate to draft technical regulations and standards in terms of a product’s process andproduction methods rather than its characteristics per se. ”WT/DS135/R
Page 106
As regards the provisions of the Decree concerning exemptions from the ban, the EC reiterate that
these provisions do not fall within the scope of the TBT Agreement.  The EC have already pointed out
that the Decree does not define either the technical characteristics of the products that may be
exempted from the general ban adopted.  These products may or may not contain asbestos.  In
addition, this very limited number of products will anyhow be phased out as soon as substituteproducts that can ensure a lower level of risk and guarantee the same security for users become
technically available.  So, even in the case of limited and transitional exceptions, the sole
preoccupation of the French authorities has been to protect human health because, for the time being,
there are no alternative products that can guarantee a lower level of risk to human health (for example,
the risk of accidents if the use of asbestos were to be banned immediately in situations of exposure to
very high temperatures, etc.)  The EC add that the Decree does not define either the production
processes and methods for the products that may be exempted from the general ban adopted.  Theseproducts may or may not contain asbestos.  It follo ws from these two observations that the provisions
of the Decree concerning exemptions from the general ban do not fall within the scope of the TBT
Agreement either.  In fact, it is neither the purpose nor the effect of the French measure to lay down
the characteristics of these products or to impose production processes or methods for their
manufacture.
(b) Article 2.1 of the TBT Agreement
3.266  Canada  claims that the Decree is incompatible with Article 2.1 of the TBT Agreement
because it subjects chrysotile fibre and chrysotile-cement products imported from Canada and from
any other country to less favourable treatment than like PVA, cellulose and glass fibres, and like
fibro-cement products, of French or foreign origin.  Article 2.1 of the TBT Agreement restates theprinciples of non-discrimination set forth in Articles I:1 and III:4 of the GATT.  In order to determine
incompatibility with Article 2.1 of the TBT Agreem ent, the Panel must determine:  (i) that the
measure in question is a technical regulation;  (ii) that the products involved are like products;
(iii) that these like products are of French origin or originate in any other country;  and (iv) that, by
virtue of the technical regulation, imported chrysotile fibre and chrysotile-cement products are subjectto less favourable treatment than like products.  Given that the allegations of incompatibility with
Article 2.1 of the TBT Agreement are being submitted to examination by a Panel for the first time,
Canada maintains that examination of the matter should take into account the precedents relating to
Articles I:1 and III:4 of the GATT 1947 and the GATT 1994.
410
3.267  Canada asserts in the first place that, as it has shown in the paragraphs regarding the
applicability of the TBT Agreement, the Decree banning asbestos is a “technical regulation” and is
subject to the application of Article 2. Secondly, as Canada has pointed out in relation toArticle III:4
411, Canadian chrysotile fibre is like PVA, cellulose and glass fibre.  Similarly, chrysotile-
cement products are like fibro-cement products.  Thirdly, Canada contends that there are substitute
fibres of French origin that are “like products” to chrysotile fibre.   There are also fibro-cement
products of French origin that are “like products” to chrysotile-cement products of Canadian origin.
PVA fibres from China, Korea and Japan intended for the manufacture of fibro-cement products arealso imported into France. Lastly, in 1997, France imported over 157,000 tonnes of fibro-cement
products originating in “any other country”.
412
3.268  Canada contends that chrysotile fibres and the products containing them are subject to less
favourable treatment than substitute products of French or foreign origin.  Following the criteria
                                                     
410 Canada indicates that, in so doing, it relies on the interpretation of the status of panel reports,
whether or not adopted, by the Appellate Body in its Report Japan – Taxes on Alcoholic Beverages ,
WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R, adopted on 6 November 1996.
411 Canada refers in general to the arguments it puts forward below in relation to Article III:4 of the
GATT.
412 Tariff Classification 6811. Source: Eurostat, CD-ROM.WT/DS135/R
Page 107
applied to Article III:4 of the GATT, a technical regulation is incompatible with Article 2.1 of the
TBT Agreement if this regulation subjects imported chrysotile fibre and chrysotile-cement products to
treatment less favourable than that accorded to like PVA, cellulose and glass fibres, and to like fibro-
cement products of national origin or originating in any other country.413  The terms of Article 2.1,
providing that “treatment no less favourable” be accorded, are identical to the terms of Article III:4 ofthe GATT: “shall be accorded treatment no less favourable”.   In Canada’s view, the inclusion in the
TBT Agreement of terms similar to those of the GATT reveals the intention of the Members to have
them interpreted in the same manner.  Article 2.1 thus includes the same obligation with respect to
national treatment as that set forth in Article III:4 of the GATT.  Article 2.1 also requires the
Members to treat like products respecting the princi ple of most-favoured-nation treatment.  It provides
for treatment no less favourable than that accorded  to like products originating in any other country to
be accorded. The wording of Article 2.1 also repeats in full the concept set forth in the disciplines ofArticle I of the GATT, namely, that any advantage granted to any product originating in any other
country shall be accorded to the like product originating in the territory of all other contracting parties.
3.269  Canada points out that the fact that the expression “no less favourable” was repeated
throughout the GATT Agreements was highlighted by the Panel in the case United States –
Section 337 of the Tariff Act of 1930.  The relevant passage is as follows:
“These words are to be found throughout the General Agreement and later agreements negotiated in the
GATT framework as an expression of the underlying principle of equality of treatment of imported
products as compared to the treatment given either to other foreign products, under the most favoured
nation standard, or to domestic products, under the national treatment standard of Article III.”414
The use of the same wording indicates that the disciplines of Article 2.1 of the TBT Agreement are
the same as those of Article III:4 of the GATT and that they are applied in the same manner.  In order
to address the question of whether less favourable treatment is accorded to products of Canadianorigin than that accorded to like products originat ing in any other country, Canada considers that the
Panel should examine the criteria of “the actual equality of the opportunities offered”.  As Canada has
already stressed, the Decree affects areas that are governed by a technical regulation as defined in the
TBT Agreement.  There is no similar measure on PVA, cellulose or glass fibres nor on fibro-cement
products.  In fact, it is undeniable that the prohibitions ordered in the French technical regulation withregard to chrysotile fibre and products containing it constitute a denial of the actual equality of the
opportunities for competition offered to chrysotile fibre and chrysotile-cement products on the French
market.  The bans do not apply to PVA, cellulose or glass fibres nor to fibro-cement products
imported into France.  Canada concludes that the Decree banning asbestos is incompatible with the
provisions of Article 2.1 of the TBT Agreement because it discriminates against chrysotile fibre andchrysotile products, as opposed to PVA, cellulose and glass fibre and fibro-cement products.
3.270  The European Communities draw attention to the following points presented as an
alternative, should the Panel consider that the TBT Agreement is applicable to the French measure,
which they nevertheless contest.
3.271  The EC point out that Article 2.1 of the TBT Agreement may be considered as a specific
application to technical regulations of Articles I and III of the GATT 1994.  The sole argument put
forward by Canada is the claim that a measure’s compatibility with Article 2.1 of the TBT Agreement
should be examined taking “into account the precedents relating to Articles I:1 and III:4 of the GATT
                                                     
413 United States – Section 337 of the Tariff Act of 1930 , adopted on 7 November 1989, BISD 36S/345,
para.5.11.  See also United States – Gasoline, adopted on 20 May 1996, WT/DS2/9 , para.6.10, and Canada –
Import, Distribution and Sale of Certain Alcoholic Drinks by Provincial Marketing Agencies , adopted on
18 February 1992, BISD 39S/27, para.5.6.
414 United States – Section 337 of the Tariff Act of 1930 , adopted on 7 November 1989, BISD 36S/345,
para.5.11WT/DS135/R
Page 108
1947 and the GATT 1994”.  As the EC show in the se ction relating to the application of Article III:4
of the GATT, the Decree does not discriminate between imported products and like national products.
3.272  Canada  emphasizes that Article 2.1 of the TBT Agreement can be considered as a specific
application to technical regulations of Articles I and III of the GATT 1994 and that the EC are in
agreement on this point.  Canada refers back to its previous arguments on the issue of the applicabilityof the TBT Agreement, on the one hand, and on the issue of likeness on the other.  These arguments
are the same as those made with respect to Article III:4 of the GATT.  Canada notes that, unlike the
case of Article III:4, the origin of like products is of no consequence for Article 2.1 of the TBT
Agreement as this Article covers national treatment and most-favoured nation treatment.  Finally, on
the issue of the less favourable treatment of imported products compared to like products, Canada
refers to the arguments it puts forward in relation to Article III:4 of the GATT.
(c) Article 2.2 of the TBT Agreement
3.273  Canada  emphasizes that Article 2.2 of the TBT Agreement requires the Members of the
WTO to ensure that technical regulations are not adopted with a view to or with the effect of creating
unnecessary obstacles to international trade.  A technical regulation creates an unnecessary obstacle to
international trade if its objective is not legitimate or if the regulation is more trade-restrictive thannecessary to fulfil this objective, taking account of the risks that non-fulfilment would create.  In
Canada’s view, in order to determine whether a t echnical regulation is compatible with Article 2.2,
the Panel must first determine if the objective that th e regulation is supposed to fulfil is part of the
range of legitimate objectives listed in Article 2.2.   If the objective is not on this list, the regulation is
incompatible with Article 2.2.  If it is determined that the objective is part of the range of objectivesstipulated in Article 2.2, the Panel must then determine whether the technical regulation is more trade-
restrictive than is necessary.
3.274  The European Communities  point out that a reading of Article 2.2 reveals two basic criteria
enabling a WTO Member to adopt a restrictive technical regulation:  (i) there must first be alegitimate objective, such as the protection of human health; and (ii) then the Member’s technical
regulation must not be more trade-restrictive than is necessary to fulfil this legitimate objective, taking
account of the risks that non-fulfilment would create .  According to the EC, the Decree meets those
two conditions.  The EC refer the Panel to the ar guments they put forward in Section III.B and in
relation to Article XX(b) of the GATT.  A legal analysis relating to Article XX(b) of the GATT also
applies in the context of Article 2.2 of the TBT Agreement as far as the test of necessity is concerned.
(i) Legitimate objective
3.275  Canada  considers that, in this case, the objective claimed by France, namely, the protection
of the health of workers and consumers, corresponds to the objectives identified in Article 2.2.
3.276  The European Communities  claim that, as they emphasize in connection with Article XX(b)
of the GATT, the aim of the French measure is to halt the spread of the risks associated with the use
of asbestos fibres and asbestos-containing product s and thus reduce the number of deaths among the
French population.  The Decree is therefore perfectly in keeping with policies designed to protect
human health.  The EC note that Canada does not dispute this.
3.277  Canada  states that it has acknowledged that the objective sought by France when adopting
the Decree, namely, the protection of human health, is one of the objectives included in Article 2.2 of
the TBT Agreement.  However, contrary to what the EC would like one to believe, Canada did not
acquiesce in the argument that the objective is to halt the spread of the risks associated with the use of
asbestos fibres and asbestos-containing products.  The examples in the list of objectives set out inArticle 2.2 of the TBT Agreement include protection of human health and safety.  Halting the spread
of the risks associated with asbestos can be a way of  protecting human health.  This is not, however, aWT/DS135/R
Page 109
legitimate objective within the legal framework of the TBT Agreement.  Inasmuch as Canada does not
dispute the legitimacy of the objective, understood as being the protection of human health, the
question which is submitted to the Panel for examination in this case under Article 2.2 is whether the
Decree is more restrictive than is necessary to fulfil this objective, taking account of the risks non-
fulfilment would create.
3.278  The European Communities  point out that, contrary to Canada’s claims, they have neither
changed nor modified the objective of the Decree:  the objective in banning asbestos was to stop the
spread of the risk of asbestos-related diseases for the purpose of protecting human health so the
objective is the same.
(ii) “For this purpose, technical regulations shall not be more trade-restrictive than necessary to
fulfil a legitimate objective, taking account of the risks non-fulfilment would create …”
(Article 2.2, second sentence)
3.279  Canada maintains that the applicable test, for the purposes of determining if the technical
regulation is more trade-restrictive than necessary to fulfil the objective claimed by France, consists of
two different criteria.  The Panel must first determine if the Decree makes it possible for the objectiveclaimed by France to be fulfilled, in other words, if there is a rational link between the Decree and the
objective. Then, to the extent that this first criterion is met, the Panel must ask itself if the trade effects
of the technical regulation are necessary, taking account of the risks that the absence of this technical
regulation would create.  For this purpose, it is essential to consider the existence of alternative
regulatory approaches, less trade-restrictive, that would make it just as possible to achieve theobjective being pursued as the technical regulati on being challenged.  Canada maintains that the
Decree banning asbestos creates an unnecessary obstacle to the international trade in chrysotile fibre
and products containing it.  First of all, the Decree has no rational link with the objective of protecting
the health of workers and consumers sought by France.  Secondly, its detrimental effects on trade are
not necessary if the actual risks that would exist in the absence of a total ban are taken into account.
Controlled use is an alternative likely to be less  restrictive to the competition opportunities in the
French market.  Although a violation of Article 2.2 of the TBT Agreement exists if only one of the
two criteria is not met, Canada contends that the Decree imposing the total ban on asbestos does not
meet either of the two criteria. Canada adds that the Decree is not in compliance with the applicable
international standards, so the EC do not benef it from the presumption in Article 2.5 of the TBT
Agreement.
3.280  Canada claims that the first question before to the Panel is whether there is a rational link
between the Decree and the objective of protecting the health of workers and consumers being
pursued by France.  In other words, does a total ban make it possible to fulfil the objective of
protecting people’s health?  This stage of the analysis is essential in order to prevent technical
regulations that only have tenuous links – or even no links at all – with the objective being pursued
from finding any justification.  Canada maintains that the Decree does not make it possible to fulfilthe objective of protecting the health of workers and consumers, that is to say that there is no rational
link between the Decree and the objective, for the fo llowing three reasons:  firstly, the risks against
which the Decree is supposed to protect workers and consumers are linked to uses of asbestos fibres
that were already prohibited when the Decree was adopted;  secondly, chrysotile fibre and modern
products containing it do not present any detectable risk for health;  and thirdly, the Decree replacesthe undetectable risk of modern chrysotile-based products with the unknown – and perhaps greater –
risk of substitute products for asbestos.
3.281  Canada states that the first difficulty in terms of the rational link is the fact that asbestos
problems are derived from old uses of asbestos fibres  such as the use of sprayed asbestos, which was
prohibited in France in 1978.  The current risks to human health are linked to exposure to asbestosdust released from brittle materials found in asbestos-treated buildings. The Decree does not achieve
the protection of the population against the risks of asbestos already installed.  Canada considers thatWT/DS135/R
Page 110
there is no rational link between the ban on hard chry sotile products and the protection of the health of
workers and consumers because these products do not present any detectable risk for health.  Nothing
in the INSERM report links a total ban approach to any risk that might be derived from these
chrysotile products. This is an essential element in determining the existence of a rational link because
France has invoked this report as the only justification for its measure.  INSERM has only evaluatedhypothetical risks linked to past uses of asbestos, covering all varieties of fibres.
415 The concentrations
of asbestos measured in the atmosphere today and on which INSERM was supposed to base its risk
projections almost exclusively contain fibres released by brittle materials installed over 20 years ago.
Canada maintains that the INSERM report, on which the ban is based, is therefore not relevant to the
decision to adopt a policy on a ban. The only epidemiological data recorded in the report concern
workers whose illnesses appeared several decades after exposure to asbestos fibres as the health
effects of asbestos take 20 to 35 years on average to emerge. Moreover, the INSERM report explicitlystates that almost all deaths attributable to asbestos nowadays are the result of past exposure caused
by uncontrolled processing or spraying.
416  The decision to ban modern chrysotile products does not
lead to reduced risks resulting from past uses nor does it even mitigate the damaging effects of brittle
materials that are still to be found in certain buildings
3.282  Canada contends that the second difficulty in terms of the rational link is that INSERM has
not evaluated whether the production or use of modern products containing chrysotile poses a risk for
the health of workers and consumers.  Such a study would undoubtedly have led INSERM to
conclude that modern uses of chrysotile do not pose an actual health risk given the negligible
emission of chrysotile-cement products.  As Canada emphasized in its factual arguments (see
Section III.B above), the health risks associated with modern chrysotile products are undetectable.Moreover, Canada notes that the EC have admitted that the practice of the controlled use of chrysotile
is effective and appropriate in asbestos extraction and processing industries.
417  INSERM does not
draw any conclusions on the harmless nature of the production and use of dense and non-brittle
chrysotile products.418 Nowhere is there any discussion on the specific risks related to the banned
chrysotile-cement products. However, that is th e necessary implication of the French statement
according to which “while the principle of controlled use in the asbestos industry can be admitted, on
the other hand, it is not possible to control the risk incurred in occupations related to the construction
industry and in other occupations concerned”.419 (WTO translation)  This statement implies, wrongly,
that exposure to chrysotile-cement products is hazardous for construction industry workers.  In
Canada’s view, the context that gave rise to the announcement and the adoption of the Decree proves
that, in order to appease public opinion, the French Government used INSERM’s report, which takes
                                                     
415 See Section III.B.7 above.
416 INSERM report, p.400 and pp. 419 and 420.
417 European Commission (G. Lohan, DG III), European justification of Decree No.96-1133 to the
Canadian authorities (15 April 1997) following French Noti fication G/TBT/Notif.97.55, p.2.  Canada notes that
the French Académie nationale de médecine also reco gnizes that  “recent important epidemiological studies,
going back for 20 years or more, show that the carcinogenic or co-carcinogenic effect of asbestos (lung cancer)is no longer detected among large pr otected industrial populations working in the conditions prescribed by the
regulatory texts.  These conditions are laid down in practical leaflets published by the ministries concerned,Labour and Safety, for use by persons in occupations exposed to at least 1f/ml and in recent decrees, in 1996,
concern persons working in buildings containing asbestos”.  (WTO translation) Académie nationale de
médecine (Étienne Fournier), Amiante et protection de la population exposée à l’inhalation de fibres d’amiante
dans les bâtiments publics et privés , Bulletin de l’Académie nationale de médecine, Vol.180, no. 4, 1996, pp. 5
and 6.
418 Canada states that INSERM omitted to consider the many studies which conclude that modern
chrysotile products are harmless.  See, in particular,  Spurny, K., et al. , Measurement of the Fibrous Dusts in
West Germany: Fiber Concentration in the Vicinity of Objects and Buildings with Asbestos-Containing-Building
Materials  [Ger].  Zentralblatt Fur Bakteriologie, Mikrobiologie Und Hygiene – Series B, Umwelthygiene,
Krankenhaushygiene, Arbeitshygiene, Präventive Medizin 1988; Vol. 187(2), p.136 .
419 European Commission (G. Lohan, DG III), European justification of Decree No.96-1133 to the
Canadian authorities (15 April 1997) following French Notification G/TBT/Notif.97.55, p.2.WT/DS135/R
Page 111
into account the consequences of past and prohibited uses of asbestos, in order to assign risks
incorrectly to modern uses of chrysotile fibre and products containing it. The Decree does not make
any distinction between hard chrysotile products, for which health risks are at undetectable values,
and asbestos-based brittle products, used as insulating material in the 1970s.  The use of free fibres in
insulating products, or products where the fibre is not encapsulated, was prohibited in view of thedifficulty of controlling the dust caused by these applications.  According to Canada, it is essential to
note that in the modern uses of chrysotile fibr e, for instance in chrysotile-cement products and
chrysotile-reinforced plastics, the fibre is sealed in a matrix and cannot be released into the
environment.
3.283  Canada asserts that the third difficulty in terms of the rational link between the order and the
protection of health is the blind faith placed in substitute fibres for asbestos. The human health effects
of most of the fibres used to replace chrysotile  fibre are not known.  According to Canada, the data
prove that some substitutes that have been the subject of careful studies are often as, or even more,
harmful than chrysotile.  The total ban on chrysotile fibre and products containing it, and their
replacement with substitute products, implies that substitute products are safe.  However, INSERM
has not been able to determine if these fibres are safe in view of the lack of epidemiological data
currently available on this subject.  The ban substitutes the undetectable risk of hard chrysotileproducts for the unknown – and perhaps greater – risk of substitute fibres.  A consistent approach to
risk management would have required the French Government, in the case of exposure to fibres and
substitute products, to try to ensure a degree of health protection equivalent to what it intended
through the total ban on chrysotile.  In other words, a consistent approach would have required
exposure to substitute fibres to be controlled in the same way as chrysotile.  Based on the foregoing,Canada maintains that there is no rational link between the Decree and the objective of protecting
public health being pursued by France. Firstly, the Decree does not address the true problem of
asbestos in France: work on the sprayed asbestos products in place for at least 20 years.  Secondly, the
Decree ignores the scientific fact that products containing chrysotile imprisoned in a matrix are
harmless. Thirdly, the Decree imposes substitute  products whose risks are unknown, which in itself
puts the objective being pursued by France in jeopardy.
3.284  Canada concludes that, inasmuch as the conditions of the first criterion (namely a rational link
between the Decree and the objective claimed by France) have not been met, the Decree is
incompatible with Article 2.2 of the TBT Agreement. Nevertheless, should the Panel conclude that
there is a rational link between the Decree and the objective claimed by France, the Decree would still
be incompatible with Article 2.2 of the TBT Agreement because, as Canada shows below, its effects
are more trade-restrictive than necessary, taking account of the risks non-fulfilment of the objectivewould create.  Canada asserts that an alternative solution less prejudicial to competition opportunities
in the French market and with similar effects on the health of workers and consumers was available,
i.e. controlled use.
3.285  Canada contends that the detrimental effects of the Decree on competition opportunities are
not necessary, in view of the risks that the absence of technical regulations would create.  The words“technical regulations shall not be more trade-restrictive than necessary to fulfil a legitimate objective,
taking account of the risks non-fulfilment would create” in Article 2.2 of the TBT Agreement imply a
necessity criterion.  Canada notes that the two factors to be considered when examining necessity are,
on the one hand, the risks that the absence of technical regulations would create and, on the other, the
existence of a less trade-restrictive alternative measure that would make it possible to attain theobjective being pursued just as effectively.  As regards whether there are risks involved in not
fulfilling the objective being pursued which could result from the absence of the technical regulations
in force, the third sentence of Article 2.2 contains a non-exhaustive list of relevant factors that must be
taken into consideration.  In the context of this dispute, the scientific and technical information
available, as well as the intended end-uses of products, in other words, chrysotile fibre and theproducts containing it, must be considered. By applying this criterion to the facts of this dispute,
Canada maintains that the total ban on asbestos, without distinction as to fibres, completely eliminatesWT/DS135/R
Page 112
the French market for chrysotile fibre and products containing it, whereas the practice of controlled
use of asbestos fibres, in terms of the types of fibre and their uses, allow fulfilment of the French
objective of protecting the health of workers and consumers while authorizing certain safe uses of
chrysotile fibre and products containing it.  Accordingly, Canada claims that controlled use is an
alternative that is less trade-restrictive and makes it possible to fulfil the objective claimed by Francein the same way as the Decree.  Consequently, if the actual risks of the modern uses of chrysotile are
considered in light of the relevant criteria, specifically the scientific information and the intended end-
uses, in Canada’s view it becomes clear that the total ban on asbestos is not necessary, inasmuch as
there is a less trade-restrictive measure that makes it possible to fulfil the objective claimed by France.
3.286  Canada states that, in the first place, there is no credible scientific information supporting a
total ban on asbestos.  The scientific information on which the Decree is based are included in
INSERM’s report, but this does not constitute a credible basis for justifying a total ban on all varietiesand all uses of asbestos.  INSERM’s report attempts to use circumstances of high levels of exposure
to a mixture of amphiboles and chrysotile in an effort to extrapolate the risks for a population that no
longer experiences such exposure. Although this  technique can in itself be deemed dubious,
INSERM’s report also raises a number of other questions when it is subjected to the criticism of peers
in the scientific community.   In Canada’s view, INSERM’s report contains conclusions that do notstand up to criticism.  First, the report does not study the data on exposure actually sustained by the
French population.  The INSERM researchers relied on hypothetical data.  Moreover, INSERM’s risk
assessments do not adequately make the distinction between the effects of amphiboles and the effects
of chrysotile.  The risk assessments presented as being linked to exposure to chrysotile are often based
on parameters of exposure to amphiboles or to amphi bole-chrysotile mixtures.  The lack of a study of
the risks posed by current exposure to chrysotile appears clearly in light of the alarmist conclusions of
the report on cancer cases in France attributable to asbestos.  These deaths are linked to past
occupational exposure and not to current circumstances of exposure to dense products containing
chrysotile.  The INSERM researchers did not look at exposure to asbestos dust during incidental
and/or intermittent work on structures where chrysotile-cement was used.  INSERM used a linearmodel in its evaluation of the risk, extrapolating from cases of low exposure to chrysotile the risk
involved in cases of high exposure to amphiboles or mixtures of fibres.  However, as recognized by
INSERM, the epidemiological data in cases of environmental exposure and exposure indoors do not
indicate any detectable risk for low exposures.  Finally, one of the effects of the Decree is to force the
use of substitute fibres even though health risks a ssociated with exposure to such fibres have not been
addressed by INSERM.
3.287  Secondly, Canada asserts that the intended end-uses of modern products containing chrysotile
fibre have not been taken into consideration in the evaluation of the human health risks.  However, the
intended end-uses of chrysotile, chrysotile-cement products for instance, do not present any detectable
health risk.  INSERM did not identify any risk li nked to the modern uses of chrysotile fibre and
products containing it.  In assessing the risks, France has not taken into consideration the intended
end-uses of modern products containing chrysotile.  The known assessments of the risks linked to themodern uses of chrysotile indicate that the risks faced by an individual are so small as to be
undetectable.  According to Canada, the ILO confirms this as follows: “The handling of products
containing asbestos in which asbestos fibres are so lidly fixed in a bonding material so that dust cannot
form does not present a health hazard.”
420  The assessments of the risks faced by workers who come
into contact with chrysotile-cement products once the material is installed indicate that the risks areundetectable.
3.288  Thirdly, Canada contends that the total ban on asbestos is the most restrictive measure from
an international trade standpoint.  It leads to a complete closure of the domestic market for these
products. In France, in the case of asbestos, the ban has caused the entire French market for chrysotile
                                                     
420 International Labour Organization, Safety in the Use of Asbestos , International Labour Conference,
Report VI (1), 71st session, 1985, Geneva, (first edition 1984), p.29.WT/DS135/R
Page 113
fibre and products containing it to disappear.  As the statistical tables in the section on French imports
of chrysotile fibre from Canada show, the French market for Canadian exports has disappeared.
Canada maintains that there is an alternative solu tion that makes it possible to fulfil the objective of
protecting human health while being significantly le ss trade-restrictive. This alternative to the ban,
i.e. controlled use, does not result in the effects previously described.  Canada indicates that thepractice of the controlled use of asbestos is based on recognized scientific principles and on an
international consensus. Controlled use was available to France as a means of fulfilling the objective
of protecting against risks associated with the uses of asbestos, without creating an unnecessary
obstacle to international trade. In fact, that was the approach adopted by France until the adoption of
the ban.  Controlled use is an internationally endorsed regulatory approach based on scientific data
applicable to an entire range of risk-related materials. The principles underlying this approach are that
only products and materials that can be controlled in such a way that the associated risks aremaintained at an acceptable level throughout their entire life cycle are authorized.   In the case of
asbestos, controlled use involves, in particular, maximum reduction of the quantity of dust released in
a work environment, the adoption of specific work methods, the prohibition of amphiboles
(crocidolite and amosite) and low-density brittle insulation products and the prohibition of processes
or products that release dust.  On the other hand, this form of regulation would allow the use ofchrysotile fibre and high-density products such as chrysotile-cement.  Controlled use is considerably
less trade-restrictive than the ban on asbestos.  The drop in Canadian chrysotile asbestos exports in
1997, the year immediately following the adoption of th e Decree, clearly shows that the controlled use
practices that had been implemented in France prior to the ban on asbestos did not create the same
obstacles to trade as those created by the total ban on asbestos as soon as it was adopted.
3.289  Canada maintains that the total ban on asbestos, without distinction as to the types of fibre,
completely eliminates the French market for ch rysotile fibre, even though the practice of the
controlled use of asbestos fibres, in terms of the types of fibre and their uses, allows the
manufacturing of safe chrysotile products, while having the same effects on human health as the ban.
The detrimental trade effects of the ban are not necessary in order to fulfil France’s objectives just aseffectively as the Decree.  The measures based on controlled use that existed in France at the time of
the announcement of the ban, would make it possible to fulfil the objective of protecting human health
without creating unnecessary obstacles to trade.  Canada considers that the excessive effects of the
ban can only be explained by the political desire of the French Government to respond in a
spectacular way to the pressure of public opinion.  Canada claims that the Decree banning asbestos is
incompatible with Article 2.2 of the TBT Agreement.  Firstly, the Decree does not make it possible to
fulfil the objective being pursued by France, that is the protection of the health of workers andconsumers.  Secondly, the detrimental effects of the total ban are not necessary in view of the actual
risks resulting from the modern uses of chrysotile.  The ban has done nothing more to protect health
than the controlled use already in place.
421  The only uses allowed at the time of the Decree’s adoption
were the use of chrysotile fibre in dense materi als, which, according to the available scientific
information and considering the end-uses, did not pose – and still does not pose – detectable risks forpeople’s health.  Canada therefore concludes that the Decree is an excessive measure because
                                                     
421 Canada notes that the French Académie nationale de médecine wrote “A measure viewed so
radically by public opinion as the total ban on asbestos does not in any way change the situation in a country.  It
does not resolve any of the problems raised by this material and may even mean neglecting the essentialmeasures that should be taken immediately”, (WTO translation), Académie nationale de médecine (ÉtienneFournier), Amiante et protection de la population exposée à l’inhalation de fibres d’amiante dans les bâtiments
publics et privés , Bulletin de l’Académie nationale de médecine, Vol.180, no.4. 1996, p.8.  Also see pp.5 and 6
of the same report:  “recent important epidemiological stud ies, going back for 20 years or more, show that the
carcinogenic or co-carcinogenic effect of asbestos (l ung cancer) is no longer detected among large protected
industrial populations working in the conditions prescribed  by the regulatory texts.  These conditions are laid
down in practical leaflets published by the ministries concerned, Labour and Safety, for use by persons inoccupations exposed to at least 1f/ml and in recent decrees, in 1996, concern persons working in buildingscontaining asbestos”.  (WTO translation).WT/DS135/R
Page 114
controlled use is a less trade-restrictive alternative that makes it possible to fulfil the objective being
pursued by France.
3.290  The European Communities respond that the distinction made by Canada between, on the
one hand, the need to determine whether the Decree permits the fulfilment of the objective cited by
France  (“rational link” in Canada's own words) and, on the other, whether the effects of the technicalregulation are necessary, taking account of the risks that non-fulfilment would create, is artificial and
at variance with the actual text of Article 2.2. of the TBT Agreement.  The wording of Article 2.2
shows that the test laid down therein is in line with that used in connection with Article XX of the
GATT and developed by Panel practice.  In following the terms of Article 2.2 of the TBT Agreement,
according to the EC, a dual examination has to be carried out:  (i) determine whether the measure is
the only one that allows the objective set by the Member to be attained, or whether there is a less
restrictive measure whereby this objective can also be achieved;  (ii) assess the risks which a failure totake the measure concerned would create, taking account, in particular, of available scientific and
technical information or end-uses of products.  Th e EC claim that, applied to the Decree, these two
criteria show that the measure is compatible with Article 2.2.
3.291  The EC note that Canada repeats throughout its submission that a less restrictive measure
(namely the “safe” use of asbestos) would enable the objective chosen by the French authorities to be
achieved.  However, the factual arguments of the EC, like their comments relating to Article XX(b) of
the GATT, emphasize that “safe” use is:  (i) insufficient to halt the spread of the risks linked to
exposure to asbestos in the production and processing industries, even though the number of workers
in those industries is limited and they are therefore, in principle, easy to supervise and monitor (thismeans an excess of mesotheliomas even with “safe” use) ;  (ii) ineffective in halting the spread of the
risks linked to occasional, and often unwitting, exposure to asbestos.  The principle of “safe” use
cannot apply where the risks affect a range of very varied occupations operating in a wide variety of
situations (this means that it is genuinely impossible to ensure “safe” use among do-it-yourself
enthusiasts and those exposed to para-occupational risks).  For further details, the EC refer the Panelto the comments made in the factual section and those relating to Article XX(b) in their legal
arguments.  On that basis, the EC consider that the Panel should also conclude that the prohibition of
asbestos and asbestos-containing products is the sole measure that will enable the objective set by the
French authorities to be achieved.
3.292 The EC claim that failure to ban asbestos a nd asbestos-containing products would create risks
for human health.  The EC assert that, even though the burden of proof lies on Canada, the latter hasdone nothing to show that the replacement of the horizontal prohibition by “safe” use would not
create risks to human health.  In the EC’s view, th e risks that would be created by a failure to impose
a ban are evident in the light of the available scientific information, the available technical
information and the end-uses of asbest os and asbestos-containing products.
3.293 The EC maintain that the consequence of using asbestos and asbestos-containing products is
to expose certain sections of the population to asbestos to a degree which scientific studies recognize
as dangerous to human health. The spread of the risks linked to such exposure cannot be halted by
“safe” use.  In the mining and processing industries, in principle the easiest to monitor, the limits to
the “safe” use of asbestos are already apparent.  For example, the 1996 study of the British HSE,mentioned in the factual section, finds a significant excess of deaths due to mesothelioma among
workers who began working in asbestos mines after the introduction of “safe” use.  The EC note that,
throughout its submission, Canada considers that asbestos inhalation is a threat only to production and
processing workers and affects several thousand persons at the most.  In the para-occupational and
domestic context, however, hundreds of thousands of persons are exposed to asbestos (very oftenunwittingly) and may even be subject to exposure levels greatly in excess of the current limit values
for asbestos dust.  For example, as the EC indicate d in Section III.B, a roofing worker using a grinder
in the open air to repair corrugated roof sheeting ma de of asbestos-cement is exposed to a peak level
of 41 f/ml, 410 times in excess of the limit value.  The EC point out that a 1992 study by the QuebecWT/DS135/R
Page 115
CSST shows that the risk of mesothelioma has b een rising steadily in Canada since 1967, chiefly
among repair and maintenance workers.  This finding is even more relevant to those persons exposed
to asbestos inhalation in a non-occupational context.  The publication by Camus et al.  shows a net
excess of mesotheliomas in women living near chrysotile asbestos mines in Quebec, seven times
higher than the level found among other women in Quebec.  Canada never quotes this study.
3.294  The EC point out that, as they indicated in the factual section (see Section III.B) and in their
comments on Article XX of the GATT, all these findings were taken into account in the INSERM
Report.  These findings are also in line with the most recent scientific studies. In the EC’s view,
Canada cannot discharge the burden of proof by trying to justify the “safe” use of asbestos by
reference to texts which are over 15 years old and do not guarantee an adequate level of protection,
given the health objectives adopted by the vast majority of countries.  The EC emphasize in thisconnection that recent texts, not quoted by Canada, confirm the ineffectiveness of such “safe” use.
This can be clearly seen in the 1998 WHO report, which states:
“Some asbestos containing products pose particular concern and chrysotile use in those circumstances
is not recommended. These uses include friable products with high exposure potential. Construction
materials are of particular concern for several reas ons.  The construction industry work force is large
and measures to control asbestos are difficult to in stitute. In-place building materials may also pose risk
control to those carrying out alterations, maintenance and demolition. Minerals in place have the
potential to deteriorate and create exposures.”422
 
3.295  The EC state that the technical information indicates that “safe” use cannot halt the spread of
the risks linked to exposure to asbestos, in particular where persons are unwittingly exposed
(repeatedly or occasionally).  The fact that “safe” use cannot halt the spread of the risk followslogically from the fact that it would be complete ly unrealistic to apply to the general public the
extremely stringent rules applicable to a small “targeted” population (primary users).  In fact, as the
EC have already stated, it is impossible to implement “safe” use effectively when hundreds of
thousands of persons are exposed every day in areas of activity with little supervision in terms of
health, such as the construction industry, which accounts for at least 25 per cent of the cases ofmesothelioma occurring in France, not to men tion the millions of do-it-yourself enthusiasts
unwittingly exposed to asbestos inhalation when performing everyday tasks such as cutting.  As
regards the specific means of ensuring the effectiveness of “safe” use, the EC point out that Canada,
even though it bears the burden of proof, considers that the risk of asbestos fibres escaping during
cutting or sawing of asbestos-cont aining products would not exist if items were supplied “pre-cut”.
3.296  The EC note that Canada also refers to an ISO standard which is over 15 years old. Canada
states that “… the cutting of plates or tiles for roof covering is not a source of emission if the simple
techniques of standard ISO-7337 are followed”.  The EC note that these “simple” techniques include
“the use of chains that break the pipes by the ef fect of pressure, low-speed saws and saws equipped
with a vacuum extractor, as well as the moistening of the materials prior to any action”.  Use of thesetechniques also presupposes that do-it-yourself enthusiasts will put on a “diver's suit” before starting
any operation that will bring them into contact with asbestos. In reality, these techniques are not
sufficient to halt the spread of the risks.  The EC emphasize that, in the real world, not all items are
pre-cut.  In the real world, the thousands of people  who are unwittingly exposed to asbestos inhalation
will not put on protective clothing to perform everyday tasks.  In the EC’s view, the fact that Canadais unable to demonstrate any specific or realistic methods of halting the spread of the risk linked to
asbestos exposure, without a total ban on asbestos and asbestos-containing products, is due to the
absence of any scientific basis.  Once products are placed on the market, there is no longer any
realistic means of monitoring the use of asbestos, and in particular the everyday operations (cutting,
sawing, etc.) in which many persons may be engaged.  The EC maintain that the “safe” use of
asbestos advocated by Canada is therefore inapplicable and does not enable the legitimate objective
                                                     
422 IPCS Environmental Health Criteria (203) on Chrysotile  WHO, Geneva, 1998, point c), p.144.WT/DS135/R
Page 116
set by France to be achieved.  Furthermore, the EC note that Canada states that the French Decree
means “blind recourse” to substitute fibres.  According to the EC, this statement reflects a
misunderstanding of the French legislation.  In practice, manufacturers carry out technical tests with a
view to replacing asbestos products by substitute products. If these tests are inconclusive, and if the
manufacturers can demonstrate that there are no substitute products with the same technicalcharacteristics as asbestos, they can submit an application for a waiver so that they can continue to use
asbestos.  The Decree provides for such waivers, which are granted after a detailed assessment.
3.297  Concerning the intended end-uses of the products , the EC note that Canada maintains that the
“modern” uses of chrysotile fibre are such that the fibre is bound in a matrix and cannot be released
into the environment.  The EC point out in this connection that Canada is claiming that this is an
innovation when it is not.  As the EC have already indicated, for the past forty years the production of
asbestos-cement has consisted of “encapsulating” asbestos in cement (10 per cent of asbestos fibres in90 per cent of cement).  The EC emphasize that, in talking of “modern” use or of “modern” products,
Canada is misleading the Panel by trying to promote a “clean” image of chrysotile asbestos; although
“chrysotile asbestos” sounds better than “amphibole asbestos”, chrysotile is also classified by the
WHO as  a “category I” product known to cause cancer in man. The Panel should know that the
“encapsulation” in question by no means guarantees the harmlessness of asbestos-cement, forexample.  Once the use of asbestos-cement is author ized, it is no longer possible to monitor such use.
A variety of operations such as cutting, sandin g, crushing or sawing are bound to be applied to
asbestos-cement, in the occupational, para-occupational and domestic contexts.  During these
operations, large numbers of carcinogenic fibres will be released in the form of dust.  Consequently,
the EC conclude that the “modern” use of chrysotile asbestos, to which Canada refers in itssubmission, is illusory and can only conceal the grave risks linked to the use of asbestos-cement, in
particular by persons who are subject to unwitting, repeated or occasional exposure.
3.298  Canada emphasizes that, once it is acknowledged that an objective is legitimate, it must be
determined whether the technical regulation constitutes a rational and necessary measure.  A measureis said to be rational if it is carefully designed, based on the legitimate objective. It must be neither
arbitrary nor based on irrational considerations.  A measure is said to be necessary if it is not more
trade-restrictive than is necessary to fulfil the legitimate objective, taking account of the risks non-
fulfilment would create.  The measure must therefore have a minimal impact on trade.  The risks that
the absence of a measure would entail must also be assessed.  The foregoing is based directly on the
text of Article 2.2, particularly the second sentence.  In Canada’s view, the application of this
provision requires that the following three questions  be answered:  (i) does the technical regulation
make it possible to “fulfil” the  “legitimate objective” (rational measure);  (ii) is the technical
regulation “more trade-restrictive than necessary” to fulfil the legitimate objective (necessary
measure);  and (iii) have the alleged harmful effects (“the risks non-fulfilment would create”) been
assessed in light of the “available scientific and technical information” and the “intended end-uses of
products”?  Unlike the United States,
423  Canada considers that the obligation under Article 2.2 does
not have to be interpreted in a similar way to Article 5.6 of the Agreement on the Application of
Sanitary and Phytosanitary Measures (“SPS Agreement”).  Article 5.6 of the SPS Agreement refers to
a specific test that the United States suggests be transposed to Article 2.2 of the TBT Agreement, even
though the terms of each Article are different, calling for separate approaches.  To cite only one
example, contrary to the footnote to which Article 5.6 of the SPS Agreement refers, Article 2.2 of theTBT Agreement does not require the demonstration of the existence of another applicable measure
that is “significantly” less restrictive to trade.  Canada notes that the EC subscribe to this viewpoint as
they propose to interpret the criterion of necessity  in Article 2.2 of the TBT Agreement in a similar
way to the criterion of necessity in Article XX of the GATT 1947 and 1994.
3.299  Canada considers that the question that must be answered is whether the technical regulation
embodied by the Decree has been carefully designed to fulfil France’s objective?  This stage of the
                                                     
423 See Section IV below.WT/DS135/R
Page 117
analysis is essential in order to prevent the justification of technical regulations that only have tenuous
links with the stated objective.  Canada maintains that there is no rational link between the Decree and
France’s objective and that the total ban on asbestos does not allow this objective to be attained for
three reasons:  (i) the Decree does not address the real problem of asbestos in France, which is the
amount of contact with friable materials containing amphiboles that have been in place for at least20 years;  (ii) the Decree ignores the indisputable scientific evidence concerning the safety of products
in which chrysotile fibres are trapped in a matrix;  and (iii) the Decree imposes substitute products
whose risks are unknown, thereby compromising France’s objective.  These three points will be
addressed in turn.
3.300  Regarding the first point, Canada contends that  the risks associated with asbestos in France
are attributable to amphibole asbestos and to sp rayed-on applications, both of which are no longer
used.  When setting out its arguments on controlled use and workers in the servicing and maintenancesector in the factual section (Section III.B above), Ca nada emphasized that, in the industrialized
countries, it is the friable asbestos products inherited from the past which represent by far the major
potential for exposure and risk today and in the years to come.  That is the situation in France, where
the health problems associated with asbestos are essentially attributable to friable materials containing
amphiboles (or a mixture of amphiboles and chrysotile), used in the 1950s, 1960s and 1970s inprocesses such as spraying and insulation.  The French Académie nationale de médecine came to this
conclusion earlier, in April 1996, in its report on the protection of the populations exposed to the
inhalation of asbestos fibres in public and private buildings.  The relevant passage reads as follows:
“A number of epidemiologists have found that unprotected contacts with the parts of buildings
containing asbestos expose, even today, too many professionals to diseases comparable to thosedescribed prior to the current regulations.  This is unfortunately a simple statement of the fact that
improper working conditions pose the same hazards as the working conditions of the 1950s.”424
[Translation by Canada]
3.301  According to Canada, inasmuch as the hazard already exists, France, like the other
industrialized countries, cannot prevent it.  France has already ordered a mandatory survey of
apartment buildings containing sprayed-on asbestos.  Construction workers will be able to refer to this
register and take the appropriate measures. France banned spraying in 1978 and amphiboles in 1994.The Decree therefore has the effect of prohibiting chrysotile-cement and other non-friable chrysotile-
based products. In Canada’s view, it is obvious that the Decree does not in any way constitute a
solution to France’s public health problem, which is associated with amphiboles and friable products
containing asbestos.  Canada maintains that there is no rational link between the objective, which is to
solve the health problems caused by the large quantities of friable asbestos materials in place inexisting buildings, and the Decree, which is obviously not designed to fulfil this objective.
3.302 Regarding the second point, Canada states that chrysotile fibre and high-density non-friable
products do not pose any detectable health risk.  Nor is there a rational link between the ban on high-
density products and the protection of health because these products do not pose any detectable health
risk.  Today, 97 per cent of chrysotile fibres are used in high-density non-friable materials.  Asbestos-cement products  account for 90 per cent of the world  market.  Brake linings represent about 7 per cent
of the market.  Various products, such as plastics, seals, etc. account for the remaining 3 per cent
market share. These products are non-friable and only chrysotile fibres are used.  In these products,
the fibres are firmly bound physically and chemically to the matrix of the composite and cannot easily
be released in biologically significant concentrations.  Canada contends that the health risksassociated with these non-friable high-density chrysotile products are undetectable.  The word
“undetectable” here means “below the limit of detection”.  This expression means that, by using the
                                                     
424 Académie nationale de médecine (Étienne Fournier), Amiante et protection de la population exposée
à l’inhalation de fibres d’amiante dans les bâtiments publics et privés , Bulletin de l’Académie nationale de
médecine, Vol.180, no.4-16,23,30 April 1996, p.7.WT/DS135/R
Page 118
most recent methods and techniques and the most rigo rous statistical analyses, the risk associated with
conditions of exposure is so low, if there is even  any risk at all, that it is “below the limit of
detection”.  The source of the asbestos risk which the French want to stop from spreading does not
come from these high-density chrysotile-based products. In Canada’s view, there is no rational link
between the objective of protecting human health and the Decree, whose objective is to prohibit themarketing, sale and importation of non-friable high-density chrysotile products because their health
risks, if any, are undetectable.
3.303  Thirdly, Canada claims that the Decree replaced the “known” and undetectable risk of non-
friable chrysotile-based products with the “unknown” risk of substitute fibres, thereby increasing the
risk to human health.  The absence of a rational link is even more obvious if it is considered that the
Decree encourages the replacement of chrysotile by substitute fibres.  As a result of the Decree, theundetectable risk associated with high-density chrysotile-based products has been replaced by the
unknown risk of substitute fibres. The ban on chrysotile asbestos thus creates a false sense of security
in the population, lowering the vigilance of workers and of the public who are the most likely to come
into contact with the substitute products.  Canada notes that the EC claim that the harmlessness or less
harmful nature of substitute fibres is proven.  As it emphasized in its arguments concerning substitutefibres, Canada maintains that not only does this claim not stand up to analysis, but the description
given by the EC is incorrect. The EC are endeavourin g in this manner to justify the irrationality of the
total ban on chrysotile fibres and their ill-considered replacement by substitute fibres.  According to
Canada, the WHO is of the opinion that replacement must be done whenever it is possible to replace
chrysotile fibres with “safe substitute materials”.  Canada recalls that on several occasions it hasemphasized that the chrysotile substitutes used in France are not “safe” products or products whose
“harmlessness” or “less harmful” nature are proven.  Nor is chrysotile asbestos replaced by products
which, according to the ILO, should be “harmless or less harmful”.  The fact that substitute products
do not contain asbestos is not sufficient grounds to believe that these products are safe or less
hazardous.  In many cases, fibrous substitute materials are assumed to be safe by users and safetymeasures such as dust control and removal are not observed. Canada considers that banning a material
whose risks are known, and even over-estimated, and replacing it indiscriminately with substitutes
whose effects are unknown seems to be an odd choice given France’s objective of protecting public
health. Canada maintains that there is no rational link between the objective of protecting human
health and the Decree, whose effect is to replace a product - chrysotile - whose risks are known and
undetectable with substitutes - fibres or products - whose risks are unknown.  The Decree does not
result in increased protection of public health;  it contributes rather to fostering in the population afalse sense of security and potentially a greater risk to human health.
3.304  Canada concludes that, inasmuch as it has no rational link with France’s objective, the Decree
is inconsistent with Article 2.2 of the TBT Agreement. However, in the event that the Panel should
find that there is a rational link between the Decree and France’s objective, the Decree would
nonetheless be inconsistent with Article 2.2 of the TBT Agreement because, as demonstrated below,its effects on trade are more restrictive than is necessary, taking account of the risks that non-
fulfilment of France’s objective would create. An alternative solution that is less trade-restrictive and
fulfils the same objective of protecting human health was available, namely controlled use.
3.305  Canada maintains that the prejudicial effects of the Decree on trade are not necessary, taking
account of the risks that the absence of a technical regulation would create.  The terms of Article 2.2of the TBT Agreement - “technical regulations shall not be more trade-restrictive than necessary to
fulfil a legitimate objective, taking account of the risks non-fulfilment would create” - suggest the
application of a criterion of necessity.  The two factors to be considered in examining necessity are,
on the one hand, the risks that the absence of a technical regulation would create and, on the other, the
existence of a less trade-restrictive alternative measure that would make it possible to fulfil the statedobjective just as effectively. According to Canada, the Panel must therefore first determine what risks
the absence of a Decree would create.  To assess these risks, the relevant factors to take into
consideration include the available scientific and technical information and the intended end-uses ofWT/DS135/R
Page 119
the products.  In this respect, Canada is of the opinion that the protection of human health would be
just as effectively ensured if the ban on chrysotile prescribed by the Decree were replaced by
controlled use measures, considering the undetectable risks of the high-density chrysotile-based
products which account for virtually the entire market.  To determine whether the effects of the
technical regulation on trade are necessary, taking account of the risks that its absence would create,Canada considers that it is essential to consider th e existence of less trade-restrictive alternatives that
would make it possible to fulfil the objective just as effectively as the disputed measure.  In
examining whether the prejudicial effects of the technical regulation are appropriate given the stated
objective, the Panel must consider the existence of a less trade-restrictive alternative solution that
would make it possible to fulfil the desired objective just as effectively.  In Canada’s view, the
controlled use of asbestos is a less trade-restrictive alternative which, nonetheless, makes it possible to
fulfil the objective of protecting human health.
3.306  Canada contends that the Decree is not based on scientific information.  It notes that that there
are two types of “asbestos” risk in France:  (i) the risk of diseases that might occur among those
exposed while working with modern high-density pr oducts containing chrysotile;  (ii) the risk of
diseases that might occur among persons working in buildings containing friable asbestos materials.
The risks and diseases associated with friable materials that were put in place in France using aprocess – spraying – that is now banned are not affected by the Decree and are therefore not the
subject of this debate.  Indeed, France banned spraying, amphiboles and friable products well before
the date of the Decree.  The only risks and diseases concerned by the Decree are those associated with
contact with modern high-density products containing chrysotile.  None of the “available scientific
and technical information” supports the total ban on asbestos (in fact, chrysotile asbestos) adopted byFrance.  Canada maintains that the risk assessment used by France as a basis for the ban on chrysotile
– the INSERM report – does not take into consideration the scientific information concerning
products in which chrysotile fibres are solidly set in a binder in such a way that no dust can be
released.  Furthermore, using models derived from exposures to high doses of asbestos dust
containing amphiboles, INSERM claims to make an assessment of the risks of modern applications of
chrysotile.  It assumed that the risk is proportiona l to the exposure for levels considerably lower than
those that have been the subject of epidemiologica l study.  Canada considers that such extrapolations
are scientifically unfounded. According to the INSERM group of experts, this is the “most plausible
uncertain” risk assessment.
3.307  Canada states that the figures obtained by INSERM based on these models are average values
subject to large variations. INSERM did not consider the risks of the intermittent or discontinuous
exposures that occur while working with high-density products in which chrysotile fibres areincorporated, such as asbestos-cement, the composite in which more than 90 per cent of chrysotile
fibres imported into France were incorporated before the adoption of the Decree.  In this application,
chrysotile fibres are solidly bound to the cement in such a way that no asbestos dust is released into
the ambient air.  Most manufacturers now offer produc ts pre-cut and pre-drilled in the plant.  Special
techniques such as pre-cutting are used to avoid any cutting operations.  When cutting or drillingcannot be avoided, work methods exist which make it possible to limit the dust emissions to a level
significantly lower than the safe exposure values.  Th is is also true for the other modern chrysotile-
based products in which the fibres are incorporated or encapsulated in a matrix. According to Canada,
the EC have not demonstrated that chrysotile fibr es encapsulated or incorporated in a cement matrix
or a plastic composite pose a health risk. Canada states that it has refuted all the studies on which theEC rely in order to argue that controlled use is not effective in keeping risks to human health to an
undetectable level during all stages of the life cycle of modern chrysotile-based products (extraction
of chrysotile, processing, incorporation in manufactured products, distribution, sale, use and disposal).
On the other hand, credible scientific information indicates that emissions of asbestos dust from non-
friable high-density chrysotile-based products are minimal and represent, for those exposed, anundetectable level of risk.  Canada contends that INSERM did not correctly assess the risk to human
health from the manufacture or use of high-density  chrysotile-based products.  Such a study wouldWT/DS135/R
Page 120
undoubtedly have prompted INSERM to conclude that modern uses of chrysotile do not pose a
genuine health risk.
3.308  Canada maintains that high-density chrysotile-based products do not pose a risk to human
health in light of their intended end-uses.425  Canada also claims that France dismissed controlled use,
a practice less trade-restrictive than a total ban on chrysotile, even though controlled use is equallyeffective in protecting human health. Canada emphasizes that the array of measures aimed at
controlling the use of asbestos in place in France when the total ban on asbestos was adopted enabled
the objective of protecting human health to be at tained without creating an unnecessary obstacle to
trade.  The French legislative provisions on controlled use were quite elaborate.  Several measures had
been taken by the public authorities, including:  (i) a ban on sprayed-on applications of asbestos for all
buildings;  (ii) a ban on the marketing, use and importation of all varieties of amphiboles;
(iii) rigorous control of the average concentrations of asbestos fibres in the workplace (exposure limitvalue of 0.1 f/ml);  (iv) a ban on an entire range of products containing asbestos;  and (v) a mandatory
survey of apartment buildings containing sprayed-on asbestos and insulation.  This array of measures
offered optimal protection of human health.
3.309  Canada claims that France did not have to ban asbestos completely.  It merely had to continue
to apply the measures already in place.  In fact, the use of relatively simple methods and rules issufficient to ensure safe use of chrysotile at each st age of its life cycle, as can be seen in the case of
chrysotile-cement, which accounts for virtually all of the world market for products in which
chrysotile is incorporated. Canada notes that controlled use makes it possible, to borrow the
expression of the EC, to halt the spread of the risk associated with exposure to chrysotile in the
production and processing sectors.  The following control measures are effective in maintainingemissions of chrysotile dust below the permitted limit values: dust control equipment, regular
verification of chrysotile concentrations, wet proc ess, confinement, policy on work clothing, showers
and medical examination. Similarly, during the installation and maintenance of chrysotile-cement
products, controlled use affords workers a level of protection corresponding to an undetectable risk.
If the methods prescribed by Standard ISO-7337 are followed, the exposure levels generated duringcutting, sawing, drilling or sizing operations on chrysotile-cement products can be maintained well
below values that represent a detectable risk.  Canada claims that the total ban on asbestos constitutes
the most restrictive possible measure from the standpoint of international trade.  It has resulted in the
total closure of the French market to chrysotile asbestos.  In the case of high-density chrysotile-based
products, controlled use is entirely practicable, effectively protects human health and has a less drastic
effect on international trade. That is why controlled use is a preferable alternative to a ban in the
context of Article 2.2 of the TBT Agreement.  Canada states that when, in accordance with Article 2.2of the TBT Agreement, the risks of modern uses of chrysotile are taken into consideration in light of
the scientific information and the intended end-uses of the products, the total ban on asbestos is not
justifiable in terms of this Article because controlled use is less trade-restrictive and makes it possible
to fulfil the objective of protecting human health.
3.310  Canada maintains that the preamble to the TBT Agreement cannot be invoked to justify non-
compliance of a technical regulation with Article 2.2. The preamble to the TBT Agreement cannot be
used to justify the Decree.  The preamble outlines the goals and rationale of a treaty. It does not confer
any rights and does not impose any obligations.  In the case of the preamble to the TBT Agreement,
the statement that the Members can choose the measures necessary for the protection of health is
explicitly limited by the obligations contained in the Agreement.  Paragraph 6 of the preamble to theTBT Agreement stipulates that the principles outlined therein (notably that no country should be
prevented from taking “…measures necessary for the protection of human … health”) are subject to
two requirements.  First of all, the measures in question must not constitute a means of arbitrary or
unjustifiable discrimination between countries where the same conditions prevail nor a disguised
restriction on international trade (in this connection, see also Canada’s arguments in the section
                                                     
425 See Section III.B above.WT/DS135/R
Page 121
dealing with Article XX(b) of the GATT).  Secondl y, the measures adopted must comply with the
obligations contained in the TBT Agreement, notably Article 2.2.  In Canada’s view, it is clear that
the preamble cannot be invoked to justify a technical regulation which, like the Decree, is inconsistent
with Article 2.2.
3.311  With regard to the precautionary principle, to which the EC refer, Canada notes that it was
recently mentioned by the Appellate Body in Japan – Measures Affecting Agricultural Products  that
the preamble and Articles 3.3 and 5.7 of the SPS Agreement refer to the precautionary principle.
However, again according to the Appellate Body, the precautionary principle cannot, in itself, justify
a violation of any of the obligations of the SPS Agreement.  If this is true in the case of the SPS
Agreement, it is even more true in the case of the TBT Agreement, which cites this principle much
more vaguely.  Nor can the precautionary principle be invoked to justify the attainment of a zero
risk.426
3.312  Canada concludes that the Decree is inconsistent with Article 2.2 of the TBT Agreement.  The
Decree does not make it possible to fulfil France’s objective, namely, better protection of human
health.  The prejudicial effects on trade of the total ban prescribed by the Decree are neither necessary
nor justifiable.  The ban has done nothing more to protect health than the controlled already in place.
The only uses allowed at the time of the Decree’s adoption were those in which chrysotile fibres areincorporated in high-density materials.  Yet th ese materials, according to the available scientific
information and considering their end-uses, at the time of the adoption of the Decree did not pose -
and still do not pose - a detectable health risk.  To summarize, the Decree is an excessive measure in
view of the fact that controlled use is a less tr ade-restrictive alternative that enables the French
objective of protecting human health to be attained.  Neither the preamble to the TBT Agreement northe precautionary principle can justify the measure taken by the French Government in breach of the
obligations contained in the TBT Agreement.
3.313  The European Communities  respond that it is important to be aware that a Member of the
WTO can establish the level of health protection it deems appropriate in its territory.  In thisconnection, the EC point out that, for example, th e sixth paragraph of the preamble to the TBT
Agreement clearly states that Members are free to choose the level of health protection they deem
appropriate.  This principle was noted by the Appellate Body, which pointed out that:
“WTO Members have a large measure of autonomy to determine their own policies on the environment
(including its relationship with trade), their environmental objectives and the environmental legislation
they enact and implement.  So far as concerns the WTO, that autonomy is circumscribed only by the
need to respect the requirements of the General Agreement  and the other covered agreements.”427
[italics in the original]
3.314  The EC claim that the Members of the WTO benefit from a similar “large measure of
autonomy” in the field of human health protection.  The question might arise whether this appropriate
level is limited by the word “necessary” or by the fact that the measure must not be applied in amanner that would constitute a means of arbitrary or unjustifiable discrimination between countries
where the same conditions prevail or a disguised restriction on international trade.  In this respect, the
EC consider it important to make a distinction between the “level” deemed appropriate by the
Member and the “measure” taken by that Member to achieve the chosen level.  The EC note that, in
the context of Article XX(b) of the GATT, all the panels which have examined the concept ofnecessity have concluded that it was not the necessity of the objective pursued by the measure
concerned that should be examined but whether or not it was necessary to submit the imported
                                                     
426 See the comments of Sir Leon Brittan, para.3.475 below.
427 United States – Gasoline , Report of the Appellate Body, adopted on 20 May 1996, WT/DS2/AB/R,
in particular pp.30 and 31 of the English text.WT/DS135/R
Page 122
products to the measure contested.428  In this connection, the Panel on United States - Restrictions on
Imports of Tuna  stated that:
“… Article XX(b) allows each contracting party to set its own human, animal or plant life or health
standards.  The conditions set out in Article XX(b) which limit resort to this exception, namely that themeasure taken must be ‘necessary’ and not ‘constitute a means of arbitrary or unjustifiablediscrimination or a disguised restriction on international trade’, refer to the trade measure requiring
justification under Article XX(b), not however to the life or health standard chosen by the contracting
party.”
429
3.315  According to the EC, it follows from the above that whereas the trade measure that makes it
possible to achieve the desired objective must satisfy certain conditions, there is no restriction on thelevel of protection chosen by the Member.  Accordingly, the EC consider that France was free to
choose the level of protection it deemed appropriate in the present case, i.e. to halt the spread of the
risk linked with the use of asbestos fi bres and products containing such fibres.
3.316  The EC maintain that the test of “necessary” in Article 2.2 of the TBT Agreement is a
formalization of the previous practice relating, in particular, to Article XX(b) of the GATT.  The EC
would, however, like to point out that, even thoug h the test of necessity within the context of
Article 2.2 of the TBT Agreement corresponds, in particular, to the test in Article XX(b) of the
GATT, it nonetheless remains true that the burden of proof, within the context of the TBT Agreement,
lies with the party which invokes a specific provision of the latter.
430  As the EC pointed out above,
the Panel on United States - Gasoline  introduced into the GATT case law concerning the test of
necessity established in the GATT 1947.  In particular, the Panel noted that:
“… the term ‘necessary’ had been interpreted in the context of Article XX(d) by the panel in the
Section 337  case which had stated that:  a contracting party cannot justify a measure inconsistent with
another GATT provision as ‘necessary’ in terms of Article XX(d) if an  alternative measure which it
could reasonably be expected to employ and which is not inconsistent with other GATT provisions is
available to it.  By the same token, in cases where a measure consistent with other GATT provisions is
not reasonably available, a contracting party is bound to use, among the measures reasonably availableto it, that which entails the least degree of inconsistency with other GATT provisions.”
431 [italics in the
original]
3.317  The EC note that the Panel on Thailand – Cigarettes adopted the same reasoning when
examining a measure under Article XX(b).  That Panel saw no reason not to adopt the same
interpretation of “necessary” under Article XX(b) as under Article XX(d), stating that:
“The import restrictions imposed by Thailand could be considered to be ‘necessary’ in terms of
Article XX(b) only if there were no alternative measures consistent with the General Agreement, or
less inconsistent with it, which Thailand could reasonably be expected to employ to achieve its health
policy objectives.”432
                                                     
428 United States – Section 337 of the Tariff Act of 1930 , adopted on 7 November 1989, BISD 36S/345,
para.5.26, Thailand – Import Restrictions and Internal Taxes on Cigarettes  (hereinafter Thailand – Cigarettes ),
adopted on 7 November 1990, BISD 37S/200, para.75; United States – Gasoline , Appellate Body Report and
Panel Report, adopted on 20 May 1996, WT/DS2/9, paras.6.22-6.24.
429 United States – Restrictions on Imports of Tuna, report circulated on 3 September 1991, not
adopted, BISD 39S/155, para.5.27.
430 The EC note that this principle was underlined by the Appellate Body within the context of the SPS
Agreement, ( EC Measures Concerning Meat and Meat Products (Hormones ), Report of the Appellate Body,
WT/DS26/DS48/AB/R, adopted on 13 February 1998, in particular para.109.
431 United States – Gasoline , Appellate Body and Panel Report, adopted on 20 May 1996, WT/DS2/9,
in particular para.6.24.
432 See, in particular, Thailand – Cigarettes, adopted on 7 November 1990, BISD 37S/200, para.75.
The EC also note that this approach is being followed in practice. The document entitled “StreamlinedWT/DS135/R
Page 123
3.318  The EC consider that the concept of necessity under Article XX(b) of the GATT is similar to
that in Article 2.2 of the TBT Agreement. The criterion of necessity under Article 2.2 of the TBT
Agreement is also based on whether or not the measure adopted is more restrictive than necessary to
fulfil a legitimate objective.  In this sense, Article 2.2 echoes the test of necessity in Article XX(b) ofthe GATT which involves, inter alia , examining whether a measure consistent or less inconsistent
with the GATT (and hence less restrictive) is available and could be employed to fulfil the Member’s
objective.
3.319  As for the second sentence of Article 2.2 of the TBT Agreement, which reads “… taking
account of the risks non-fulfilment would create”, the EC  consider that, here again, this is an integral
part of the implementation of the test of necessity under Article XX(b) of the GATT.  In fact,according to the EC, a restrictive measure is “necessary” only if there are risks associated with the
non-adoption of the measure in question.  The purpose of this sentence is to deny Members the
possibility of adopting measures, under cover of protecting human health, without having taken into
account the risks associated with the use of the product banned.  Such risks should be assessed, in
particular, on the basis of the available scientific and technical information.  Clearly, then, the degreeof necessity depends on the nature of the objective, as well as on the risks its non-fulfilment would
create.  As the EC claimed, under the so-called “safe” use policy there continues to be a significant
excess of deaths in the asbestos production and processing sector.  Moreover, this policy does not
provide protection for the secondary populations exposed to asbestos (carpenters, electricians, do-it-
yourself enthusiasts, etc.), although the number of deaths caused by asbestos in these groups hassteadily increased and now accounts for more than a quarter of deaths due to asbestos.
3.320  The EC note that France, through the INSERM report, analysed the risks associated with the
use of asbestos when it adopted its Decree.  Furthermore, the scientific evidence
433 predicted an
increase in the annual number of deaths by mesothelioma in France up to the year 2020.  It isestimated that in France the total number of deaths by mesothelioma over the whole of the period
1996-2020 will be 20,000 for men and 2,900 for women.  Furthermore, the study by Peto et al
434,
which analyses mesothelioma mortality in England and Wales during the period from 1979 to 1990,
shows that about 95 per cent of all the deaths during that period involved workers belonging to the
“secondary” user group.  It follows that, in the present case, the risks created by non-fulfilment are
mortal risks.  Accordingly, as so-called “safe” use is inapplicable and ineffective435, the EC maintain
that banning asbestos and asbestos-containing pro ducts was the only measure that could be employed
to achieve the level of protection deemed appropriate by France, which is to halt the spread of the risk
associated with the use of this product.  The EC th erefore conclude that the test of necessity is the
same under Article XX(b) of the GATT 1994 as under Article 2.2 of the TBT Agreement.
3.321  The EC point out, however, that the fact that the test of necessity should, in substance, be
applied in the same way in each of the above-mentioned provisions does not mean that the
distribution of the burden of proof is the same under each of these provisions.  Within the context of
Article 2.2 of the TBT Agreement, as distinct from Article XX(b) of the GATT, the burden is on the
complaining party to first establish a violatio n.  Article 2.2 of the TBT Agreement cannot be
                                                                                                                                                                    
mechanism for reconciling the interests of contracting par ties in the event of trade-damaging acts” provides, in
particular, that “A measure taken by an importing contracting party should not be any more severe … thannecessary to protect the human, animal or plant life or h ealth involved, as provided in Article XX(b)” Document
C/M/236, BISD 36S/67, point 1.
433 Gilg Soit Ilg, A., et al., Estimation of the Past and Future Burden of Mortality from Mesothelioma
in France , Occupational Environmental Medicine, 1998;  55:760-765.
434 Peto, J. et al ., Continuing Increase in Mesothelioma Mortality in Britain , Lancet, 1995, vol.345,
p.535.
435 Hutchings, S., et al., Asbestos-Related Disease , Occupational Health Supplement, London, Health
and Safety Executive, 1996, pp.127-152.WT/DS135/R
Page 124
understood as an exception to another provision of the TBT Agreement.  Considering the structure
and context of the TBT Agreement, the Report of the Appellate Body in the Hormones436 case is
particularly relevant.  In fact, the complaining Member must first demonstrate the availability of a
consistent or less inconsistent alternative measure that can be employed to achieve the level of
protection deemed appropriate by the defending Member.437  The EC consider that Canada has not
shown that the French measure was not necessary , within the meaning of Article 2.2 of the TBT
Agreement, to protect human health in accordance with the level of protection deemed appropriate by
France.
3.322  Canada contends that, contrary to the requirements of Article 2.2 of the TBT Agreement, the
Decree has no rational link with France’s stated objective: it does not protect the health of French
workers or of the public in general.  The requirem ent for such a link flows naturally from the text of
Article 2.2, which states that regulations shall not create “unnecessary obstacles to international
trade”.  As the preamble to the TBT Agreement prescribes, the rational link element ensures that
measures are not “applied in a manner which would constitute a means of arbitrary or unjustifiable
discrimination”.  Three facts supported by science demonstrate the lack of a rational link:  (i) the risks
posed by the high-density chrysotile products at issue in this case are undetectable;  (ii) amphibolesare far more dangerous than chrysotile; and (iii) substitute fibres have not been shown to be harmless.
Canada addresses each of these factual issues in turn.
3.323  Canada notes, first of all, that high-density chrysotile products do not threaten the health of
French workers, but are nonetheless wrongly targeted. The Decree banning such products therefore
has no rational connection with the protection of human health.  According to Dr. Henderson,chrysotile-cement products pose a “negligible risk to health” because of their normal weathering,
erosion or general degradation. “… there is little or no dispute among experts on this issue”.
438  To
illustrate the relative risk, Dr. Henderson states that: “A greater risk to health would arise from […]
falling from or through the roofs”.439 At the meeting with the parties on 17 January 2000, he added
that the risk of cancer and mesothelioma is consiste ntly higher with friable products than with high-
density products and that the risk associated with manufacturing high-density chrysotile-cement
products was “extremely low.”  Canada further states that interventions on the high-density products
at issue, namely chrysotile-cement exterior construction panels, roofing tiles and pipes, are rarely, if
ever, required.  Moreover, with the adoption of proper working procedures and the use of proper tools
as recommended in international standards, such interventions pose no detectable risk to human
health.  According to Canada, the WHO specifically targets past uses as being problematic:  “There is
potential for widespread exposure of maintenance personnel to mixed asbestos fibre types due to largequantities of friable asbestos materials still in place.”
440 One of the five conclusions of the WHO 1998
Report on asbestos is: “Some asbestos-containing pro ducts pose particular concerns [...] these uses
include friable products with high exposure potential.”441
                                                     
436 EC Measures Concerning Meat and Meat Products (Hormones ), Report of the Appellate Body,
WT/DS26/DS48/AB/R, adopted on 13 February 1998, in particular paras.99-109.
437 The EC indicate that equally relevant, by analogy, is the position of the Appellate Body in Japan –
Measures Affecting Agricultural Products , adopted on 19 March 1999 (WT/DS76/AB/R, para.126), according
to which the complaining Member must show that the contested measure is more trade-restrictive than necessaryto fulfil a legitimate objective taking into account the risk which non-fulfilment would create.
438 See Section V, reply by Dr. Henderson to question 1(b) from the Panel.  [Note:  in the context of
this dispute, the Panel consulted four independent experts in accordance with Article 13 of the Understanding.The written replies by the experts to the questions from the Panel can be found in Section V of this report.
Annex VI contains a transcription of the meeting held by the Panel on 17 January 2000 with the experts and the
parties].
439 Id.
440 IPCS Environmental Health Criteria (203) on Chrysotile , WHO, Geneva, 1998, p.139.
441 Id., p.144.WT/DS135/R
Page 125
3.324  Secondly, Canada claims that the Decree has no rational connection with the objective
because it targets chrysotile, whereas amphiboles are the real danger. It does nothing either to address
the serious problem posed by the enormous quantity of friable products containing amphiboles still in
place. The ban merely relieves public pressure on the French Government to find a solution to the real
problem.  According to Canada, three of the four experts agree that a clear distinction should bedrawn between the toxicity of amphiboles and chrysotile. Amphiboles may be up to 100 times more
dangerous than chrysotile for the induction of mesotheliomas.
442  At the meeting of 17 January,
Dr. Henderson repeated that “most if not all these mesotheliomas are a consequence of exposure to
asbestos-containing materials that included a mixture of asbestos types" [sic].443  Canada notes that a
1997 report of the French Ministry of Labour ( Ministère du Travail, Comité G2SAT ), submitted to the
Panel by the EC, recognizes that, as a result of the chemical dissolution process that takes place in the
lungs, chrysotile’s carcinogenic activity is practically nil:
“It has been shown that chrysotile is much more easily eliminated from the human lung than other
forms (amphiboles).  Moreover, it has practically no carcinogenic activity.”444 (WTO translation)
3.325  Thirdly, Canada contends that the Decree has no rational connection with the protection of
human health because it imposes use of substitute fibres that are not proven to be safe. Canada notes
that, at the meeting with the experts, Drs. Henderson, de Klerk and Infante agreed that, perhaps with
the exception of glass fibres, which should be presumed to be carcinogens, the information on
substitutes is meagre.  This is confirmed in the recently published INSERM Report on substitute
fibres, which “underlines some grave concerns that should rapidly be dissipated”.445  At the second
substantive meeting with the parties, Canada drew to the Panel’s attention the key conclusions of the
INSERM report on substitute fibres.  Canada notes that, in this report, INSERM admits that very little
is known about their potential impact on human health:
“Fibres on which very few toxicological data exist are today being used … on a large scale as a
replacement for asbestos;  the novelty of their use for such applications is accompanied by a lack of
data on their potential effects on human health.”446 (WTO translation)
3.326  Canada points out that INSERM concluded that, in epidemiology, no significant excess risk
of cancer has ever been detected from exposures to asbestos at the same exposure levels used toevaluate the carcinogenicity of substitutes:  “No significant increase in the risk of cancer due to
exposures to asbestos at levels comparable to those estimated for substitute fibres has ever been
detected.”
447 (WTO translation)  Canada notes that, at the meeting, the experts did not deny this
statement.  INSERM also concluded that it was unable to demonstrate that substitute fibres are not
carcinogenic:
“Globally, it was not possible to reach a firm conclusion for any of the types of fibre or any type of
cancer […]
It must, however, be strongly emphasized that the data available do not allow the existence of a risk of
cancer caused by exposure to substitute fibres to be eliminated […]On the basis of the epidemiological data currently available, therefore, no conclusion can thus be drawn
concerning the carcinogenicity of various types of substitute fibre.”448 (WTO translation)
                                                     
442 See Section V, replies by Dr. Musk and Dr. de Klerk to question 3 from the Panel.
443 Id., reply by Dr. Henderson to question 1(e) from the Panel.
444 INRS, Rapport du Groupe scientifique pour la surveillance des atmosphères de travail (G2SAT) ,
1997, p.47.
445 INSERM, Effets sur la santé des fibres de substitution à l’amiante , INSERM joint report, Paris,
1999.
446 Id., p.v.
447 Id., p.411.
448 Id., pp.178-181.WT/DS135/R
Page 126
3.327  Canada points out that, based on these findings, INSERM recommends that all proposed
substitutes be suspected of inducing pathologies:  “Any new fibre proposed as a substitute for asbestos
or for any other use should a priori  be suspected of being pathogenic.”449  (WTO translation)  Canada
adds that a host of other studies also show that many substitute fibres present substantial health risks.
According to the United States Occupational Safety  and Health Administration (OSHA), glass fibres
“are reasonably anticipated to be a carcinogen”.450 The United States Environmental Protection
Agency (EPA) has further concluded that refractory ceramic fibres (RCF) present a significant risk of
serious harm to human beings from cancer.451  This is consistent with the findings of the WHO’s
International Agency for Research on Cancer (IAR C), which has classified glass wool, rock wool,
slag wool, and refractory ceramic fibres as “possibly carcinogenic to humans”.452  Finally, Dr. Infante
has concluded that:  “on a fiber-per-fiber basis, glass fibers may be as potent or even more potent than
asbestos”.453 Canada notes that, at the meeting with the experts, Dr. Infante reiterated that glass fibres
should be presumed to be carcinogenic.  Canada submits that there is a convergence of opinions
within the scientific community th at there is no solid scientifically validated evidence to support the
allegation that the use of substitutes is safe.  Thus, the Decree has replaced the undetectable risk of
chrysotile with the unknown risks of substitute fibres. The French ban is not rationally connected with
its objective of protecting human health because the risk of substitutes has not been addressed.
3.328  Canada contends that the ban is not necessary because a less trade-restrictive measure is
available. Why is it so “necessary” for France to protect its citizens against the undetectable risk
posed by chrysotile high-density products, but not against the risks of substitutes?  Canada notes that
several variations of the word “necessary” have been put forward to justify France’s ban on
chrysotile.  In Canada’s view, however, necessity, in the WTO context, is not and should not beunderstood as political necessity “to be seen to be doing something” in order to assuage public
opinion.  The French National Assembly and Senate clearly acknowledged these facts in a joint report
on asbestos published in 1997:
“The climate in society changes as a result of pressure from shaken public opinion [page 19] … [The
Decree is] a decision which concerns public opi nion and whose aim is to provide reassurance
[page 57].”454 (WTO translation)
3.329  Canada contends that necessity, in the WTO context – and more specifically in the context of
the TBT Agreement– is a narrower concept than France and the EC suggest. A contested measure, tobe in compliance with Article 2.2 of the TBT Agreement, must be “necessary to fulfil a legitimate
objective”, i.e. to protect human health, not to meet the French population’s concerns about health.
The TBT Agreement was not negotiated to allow governments to legislate to appease public opinion.
It was specially negotiated to counter such recourse to technical barriers to trade in the absence of
scientific evidence.  Canada considers that a decision in favour of the EC would eviscerate the TBTAgreement.  Under the necessity test of Article 2.2 of the Agreement, a measure will be found
                                                     
449 Id., p.398.
450 See United States Department of Labor (OSHA), Synthetic Mineral Fibers: Hazard Description , on
line: OSHA <http://www.osha.gov/os hinfo/priorities/synthetic.html> (access date: 22 June 1999). The OSHA
Report states that: “Several epidemiologic studies have de monstrated statistically significant elevations in the
risk of lung cancer and other respiratory system cancer s among workers employed in fibrous glass and mineral
wool manufacturing facilities.”
451 See United States Department of Labor (OSHA), Synthetic Mineral Fibers: Hazard Description , on
line:  OSHA <http://www.osha.gov/oshinfo/priorities/sy nthetic.html> (access date: 22 June 1999) citing:  EPA,
Refractory Ceramic Fibres:  initiation of Priority Review, Federal Register, Vol.
452 World Health Organization, Man-made Mineral Fibres,  IARC Monographs on the Evaluation of the
Carcinogenic Risk of Chemicals to Man, 1988, 43:39-171. Lyon, France.
453 Infante, P.F. et al. , Fibrous Glass and Cancer , Wiley-Liss, 1994.
454 Le Déaut, J.-Y. and Revol, H., L’amiante dans l’environnement de l’homme:  ses conséquences et
son avenir , Office parlementaire d’évaluation des choix scientifiques et technologiques, Assemblée nationale
No.329/ Sénat  No.41, 1997.WT/DS135/R
Page 127
inconsistent if a less trade-restrictive means is available to reach the same policy objective. As a
GATT Panel formulated the rule in respect of Article XX of the GATT, a measure will be deemed
necessary only “if there were no alternative measure consistent with the General Agreement, or less
inconsistent with it, which [the Party] could reasonably be expected to employ to achieve its health
policy objectives”.  In other words, even assuming that the chosen end is legitimate, the measure mustnot be an excessive or over-reaching means to achieve a legitimate end.
 455
3.330  Canada claims that a ban is the most extreme and restrictive trade measure available. The
Decree, as it stands, is excessive and does not meet the necessity criterion because a less trade-
restrictive alternative could have properly achieved the protection of human health. France could have
reached the same objective by setting up a regulatory regime under which prohibitions and
authorizations of asbestos products were decided not on the basis of the existence or non-existence of
substitutes, as the Decree does, but rather in the light of two guiding principles:  (i) an assessment ofrisk made on a product-by-product and use-by-use basis;  and (ii) an analysis of the non-feasibility
and ineffectiveness of controlled use for each product.  Canada claims that France could and should
have used these two guiding principles to determin e which chrysotile products are to be authorized in
France, instead of the criterion of the non-availability of substitutes.  If it had, the range of chrysotile
products and their uses authorized in France would have been broader and international trade lessrestricted.
3.331  Canada contends that, first of all, the Decree is not based on a credible risk assessment and,
secondly, that decisions to ban or exceptionally to authorize asbestos products under the Decree do
not stem from an analysis of the feasibility and effectiveness of controlled use.
3.332  Canada considers that, if France had based its chrysotile policy on a credible product-by-
product and use-by-use risk assessment, it would not have banned high-density chrysotile products.
At the very least, such a risk assessment would ha ve led the French authorities to authorize the use of
a certain number of high-density chrysotile products.  Canada claims that the INSERM report
certainly cannot be considered a credible and sufficient risk assessment of high-density chrysotile
products.  The French Government used the INSERM report as the scientific basis to justify its ban onhigh-density chrysotile products, even though INSERM did not recommend banning them.
Irrespective of the fact that the text of the report does not support the ban on high-density products, its
serious deficiencies, the timing and circumstances of its adoption relative to the announcement of the
French ban, and the strong criticism to which it has been subjected by members of the French and
international scientific communities cast very real doubt on its credibility and its sufficiency as a
scientific basis for the French ban.
456  Canada notes that critics have identified six major problems
with the INSERM report:
• INSERM’s risk assessment is based on hypothetical data and therefore has no real
factual relation to the situation actually prevailing in France today.
• INSERM’s risk assessment is often misleadingly based on data from exposure to
amphiboles or mixed fibres, instead of to chrysotile fibres alone.
• The report does not make clear that, because of the long latency period for asbestos-
related diseases, the estimated deaths in the 1990s and after are almost exclusively theresult of occupational and para-occupational exposures in the 1950s and 1960s.
• The report did not even examine what is surely the key issue relating to the ban,
namely, exposures to current chrysotile products.
                                                     
455 Thailand – Cigarettes , BISD 37S/200, report  adopted on 7 September 1990, para.75.
456 See Canada’s arguments in Section III.B.7 of this report.WT/DS135/R
Page 128
• INSERM’s extrapolations from data based on high exposure levels and exposures to
friable products greatly exaggerates the risk from low exposure levels to productswhere chrysotile is encapsulated in a hard  matrix, specifically chrysotile-cement and
friction products.
• Finally, the INSERM report acknowledg es that, “This problem is, however,
indissociable from the choice of substitute fibre” (WTO translation) for which little
information is available.
457  It was only in November 1999, almost three years after
the ban on chrysotile took effect, that INSERM’s report on substitutes was published,
concluding that there was a lack of information on substitutes. It should also be
recalled that INSERM did not recommend ba nning high-density chrysotile products.
3.333  Canada emphasizes that all available scientific evidence indicates that there is no detectable
risk of mesothelioma or lung cancer as a result of exposure to chrysotile in the manufacture or use of
friction products or in the manufacture of high-density chrysotile- cement products.  The same is true
for the use of high-density cement products.  One of the most challenging issues in international trade
law is striking the right balance between keeping markets open and allowing States to regulate in
order to accomplish other legitimate goals, such as the protection of human health. In Canada’s view,
one manner of resolving this issue – which has been used by WTO panels – is to determine whether
the formal scientific analysis on which the decision to adopt trade-restrictive measures is based
constitutes a credible and sufficient justification for the measure in question.  It is often unrealistic toexpect a panel of trade experts to resolve a complex scientific controversy.  In fact, it is not its role to
do so. In this case, there is so little scientific evidence for a ban that the Panel can only reasonably
conclude that France has not conducted a credible and adequate scientific evaluation to justify this
extremely trade- restrictive measure.  Consequently, in assessing the WTO consistency of the French
ban, Canada asks that the Panel disregard the INSERM report.
3.334  Canada also points out that, at the meeting on 17 January 2000, the experts mentioned two
seemingly anomalous studies.  Neither overcame the great weight of contrary evidence. First,
Dr. Henderson in particular relied on the Australian Mesothelioma Register (Leigh et al ., 1999).
However, this is not a controlled study but simply a set of observations.  It might be expected that any
large enough subset of the population (such as garage workers or schoolteachers or lumberjacks)would experience some instances of mesothelioma or lung cancer.  The question that must be asked is
whether the number is more than expected?  The only way to know for sure is by observing controls.
According to Canada, other more carefully conducted studies suggest that Leigh’s data do not show
excess risk.  An examination by electron-microscopy of lung tissue in 221 definite or probable cases
of mesothelioma in the Register and of 339 age-and-sex-matched controls (Rogers et al . 1991)
suggest that the mesothelioma cases in the Regist er cannot be attributed to chrysotile exposure.
Dr. Henderson puts a lot of emphasis on the Australian Mesothelioma Register to justify the non-
feasibility of controlled use at all stages of the lifecycle of asbestos-cement products.  But, in addition
to criticism by Dr. McDonald regarding the use of such data, Canada stresses that the Australian
experience is unique and that it is not prudent to draw general conclusions applicable elsewhere.
Crocidolite amphiboles were used massively until the end of the 1970s in Australia, while amosite
was used until the mid-1980s.  Many houses were built with asbestos-cement products containingmainly amphiboles.  Leigh et al.  write that:
“From about 1940 to the late 1960s all three types of asbestos were used in [the asbestos-cement
manufacturing industry], crocidolite then being phased out.  Amosite was used until mid 1980s.  Muchof this industry output remains in service today in the form of ‘fibro’ houses and water and sewagepiping.  By 1954 Australia was number four in the Western world in gross consumption of asbestos-
cement products, after USA, UK and France, and clearly first on a per capita basis.  After World War II
to 1954, 70,000 asbestos-cement houses were built in the State of New South Wales alone (52% of all
                                                     
457 INSERM report, p.428.WT/DS135/R
Page 129
houses built).  In Australia as a whole, until the 1960's, 25% of all new housing was in asbestos-
cement.”
3.335  Secondly, Canada maintains that the apparently high risk of lung cancer in the Charleston
cohort, where exposure was predominantly to chrysotile, has only been observed in two other textileplants where substantial amounts of amphibole fibres  were used.  The “textiles mystery”, as it has
been called by Dr. McDonald (1998), is anomalous and has yet to be explained.  However, it is
evident that it is limited to the textile process.  Perhaps the numerous very long and fine fibrils
produced in carding or the use of carcinogenic mineral oil spray for dust control and facilitation of
weaving are responsible.  These factors are peculiar to the textile industry and have no relevancewhatsoever to friction or high-density cement products.  In Canada’s view, it is evident that the
French ban is not supported by credible and sufficient scientific evidence.
3.336  Canada contends that a balanced assessment of high-density chrysotile products would have
forced the French authorities to conclude that this type of product is not dangerous for the public.
Canada notes that, according to the experts appointed by the Panel, the risk to human healthassociated with the various uses of chrysotile  throughout its life cycle is “overwhelmingly a
workplace issue”.
458 The INSERM report on asbestos also supports the view that the asbestos issue
concerns occupational and para-occupational exposures.459  Chrysotile-cement products do not pose a
health risk from normal weathering, erosion or ge neral degradation, and “there is no dispute among
experts on this issue” [sic].460 The removal of chrysotile-cement products does not pose any danger
either, except in Dr. Infante’s view.  Nor do these products endanger the general public via
environmental exposure.  As for the French do-it-your self enthusiast, he will rarely, if ever, come into
contact with a chrysotile-cement pipe, an exterior construction panel on a commercial building or
brake linings, let alone saw or puncture one of thes e.  Canada notes that, as Dr. Henderson confirmed,
a do-it-yourself enthusiast therefore runs very little risk.  The experts agree that one must turn tocumulative exposure to assess the risk.
461 It can readily be understood that the cumulative exposure of
do-it-yourself enthusiasts is inconsequential because, for the few who may be exposed, this is
probably nothing more than a once-in-a-lifetime exposure to chrysotile from high-density products.
Canada concludes that banning high-density chrysotile products allegedly because they subject the
general public to risk is not supported by a balanced, product-by-product, use-by-use risk assessment.
3.337  Canada points out that a balanced risk assessment of high-density chrysotile products would
have led the French authorities to conclude that these products are not dangerous to workers for tworeasons.  Firstly, most workers are not in contact with high-density chrysotile products and, when they
are, their exposure is intermittent and therefore the cumulative exposure is very low.  Secondly,
controlled use is both feasible and effective. The term “worker” encompasses quite a diverse group of
people. The Panel, in its questions to the experts, grouped workers in the following categories (see
Question 1):  (i) miners and millers;  (ii) workers in the manufacturing industry (friction materials andchrysotile-cement products);  (iii) employees of the textile industry;  (iv) workers in the construction
industry;  (v) workers in the renovation, maintenance and heat insulation industry; and finally
(vi) workers in the asbestos removal industry.  Canada points out that it is defending high-density
chrysotile products, not asbestos textiles.  Therefore whether or not these workers are at risk is
irrelevant to this proceeding.  Regarding miners and millers, there has been no mining or millingactivity in France since 1965.  Canada also contends that these workers are not at risk.
462  Workers
manufacturing high-density chrysotile products likewise are not at risk.  Article 2.2 of the TBT
                                                     
458 See Section V, reply by Dr. Henderson to question 1(b) from the Panel.
459 INSERM Report: “the vast majority of these deaths can indisputably be explained by occupational
or para-occupational exposure” (WTO translation) (pp.419 and 420).
460 See Section V, reply by Dr. Henderson to question 1(d) from the Panel.
461 See Dr. Henderson’s comment s, Section V.C.1(i), citing IPCS Environmental Health Criteria (203)
on Chrysotile , WHO, Geneva, 1998.  See also the EC’s comments on the replies by the experts, Section V.D.2.
462 See in particular paras.3.155 et seq.WT/DS135/R
Page 130
Agreement specifically points to the analysis of the risks that “related processing technology” entails.
Canada concurs with the EC and the experts that, with controlled use, processing technologies used to
manufacture high-density products pose no threat to human health.463
3.338  According to Canada, no epidemiological stud ies show that workers in the high-density
chrysotile products manufacturing industry incur excess risks of lung cancer or mesothelioma.  AsDr. Thomas concluded for an asbestos-cement fa ctory, “the population of the chrysotile-cement
factory studied are not at any excess risk in terms of total mortality”.
464 Studies of the friction
products manufacturing industry show no chrysotile-related increase in lung cancer risk for persons
exposed to the equivalent of up to 9 f/ml for 40 years.  Workers in the maintenance, renovation,
asbestos removal and heat insulation sectors, as well as electricians, are likely to be in contact with in-
place friable asbestos and amphiboles, not primarily high-density chrysotile products. In Canada’s
view, banning high-density chrysotile products is not necessary to protect these workers against therisks of amphiboles and friable products. Authorizin g high-density chrysotile products in France does
not increase the level of risk for these workers. The WHO specifically identifies the threat of friable
asbestos and amphiboles for maintenance personnel.
465  Dr. Henderson is of the view that, for these
workers, mesotheliomas are almost invariably associated with amphiboles:
“… for data on mesotheliomas among electricians,  carpenters, plumbers, insulation workers and so
forth (it is acknowledged that most if not all these mesotheliomas are a consequence of exposure toasbestos-containing materials that included a mixture of asbestos types, including chrysotile and one or
more of the amphiboles) ...”466
3.339  Canada maintains that the ban on high-density chrysotile products is not necessary to protect
workers in the maintenance, renovation, asbestos removal and heat insulation sectors, and electricians.
Banning high-density chrysotile products on the grounds that such products increase the risks for thiscategory of workers is inconsistent with a balanced product-by-product, use-by-use risk assessment.
Some workers and do-it-yourself enthusiasts may encounter high-density chrysotile products
intermittently, for example, some construction wo rkers who might occasionally intervene, depending
on the nature of their work, on cement pipes, cement external wall panels or cement roof tiles;  or
perhaps mechanics who handle brake linings;  or a do-it-yourself enthusiast who is occasionally
exposed when working on his home.  Canada consider s that, in most cases, infrequent exposures lead
to such low cumulative exposures that, even without the use of proper tools and procedures, theexperts have agreed that the health of workers is not in danger.  In the other cases, application of
controlled use, including procedures and the use of tools prescribed by international standards,
reduces the risk to an undetectable level.
3.340  Canada asserts that the French ban is not based on evidence that controlled use in unfeasible
and ineffective.  The regulatory system established by the Decree does not determine bans andauthorizations for asbestos products in the light of a product-by-product examination of the feasibility
and efficacy of controlled use.  Canada notes that, if this were the case, France would have authorized
high-density chrysotile products for which it has been established that controlled use is applicable and
effective, for example, asbestos-cement pipes and brake pads and linings.  Before commenting on
controlled use as applied to work on asbestos-cement pipes and brake linings, Canada wishes to returnto the meeting of 17 January 2000 with the experts and then describe briefly the concept of controlled
use.
                                                     
463 European Commission (G. Lohan, DG III), European justification of Decree No.96-1133 to the
Canadian authorities (15 April 1997) following French Notification G/TBT/Notif.97.55.
464 Thomas, H.F., Benjamin, I.T., Elwood, P.C. and Sweetnam, P.M., Further Follow-up Study of
Workers From an Asbestos-cement Factory  (1982) 39:3 British Journal of Industrial Medicine, 273, p.275.
465 IPCS Environmental Health Criteria (203) on Chrysotile , WHO, Geneva, 1998, p.139.
466 See Section V, reply by Dr. Henderson to question 1(e) from the Panel.WT/DS135/R
Page 131
3.341  Canada claims that controlled use is an approach that is not specific to the asbestos industry.
It is a general method of risk management for all products or technologies which, in the absence of
controls or regulations, might involve risks.  Moreover, the experts confirmed this when they
specifically recommended the controlled use of substitute fibres.  The experts also recommended
applying the principles of controlled use as a way of dealing with the sensitive issue of amphibolesand friable products already in place.  Canada notes that Dr. Musk referred to the principles of
controlled use as a way of dealing with the problem of asbestos in place, in particular friable products
and products containing amphiboles.  The implementation of controls, the issue of permits and best
work practices have already been advocated by Dr. Musk.  Canada also notes that Dr. Infante refers to
the principles of controlled use in the context of us e of substitute fibres.  He suggested that best work
practices (use of low-speed cutting tools and wearing a mask) should be used to reduce the levels of
exposure.  This also forms part of controlled use as applied to the chrysotile industry.  He alsoreferred to United States standards for the control of nuisance dusts such as glass fibre.  Dr. Infante
also declares at the same time, paradoxically, that controlled use is unfeasible for chrysotile products
because workers are not sufficiently informed or do not use the recommended equipment.  If
controlled use is applicable and effective for substitutes, amphiboles and friable material already in
place, Canada wonders why it would not be appl icable and effective for high-density chrysotile
products.
3.342  Canada notes that, during the meeting with the experts, the question of whether it could be
expected that regulations on controlled use would be respected was raised.  In Canada’s view, official
decisions should definitely not be taken on the basis of a hypothesis that the law will not be observed.
Dr. Infante nevertheless commented that controlled use was not feasible in the United States due to
the high number of breaches of the two United States standards on exposure to asbestos established by
the OSHA.  Canada wishes to point out in this resp ect that, of the 3,349 breaches of the two standards
recorded during the period 1998-1999, only 16 concerned exceeding the United States exposure
standard of 0.1 f/ml.  Even more significantly, these 16 breaches were exclusively related to exposureto friable materials already existing within buildings.  They bear no relation to the products concerned
by this case.
3.343  Canada maintains that controlled use can be summarized by the three major recommendations
in ILO Convention 162.  Firstly, exposure should be brought down to levels that do not involve any
health risk.  Low levels of exposure allow asbestos-related diseases to be eliminated.  Secondly, use of
crocidolite should be banned.  In general, scientific studies show that exposure to chrysotile is muchless dangerous than exposure to amphiboles.  Thirdly, friable asbestos materials such as sprayed and
insulating materials should be banned.   Asbestos-related diseases appear in the secondary production
industries, when installing insulation containing  asbestos and in building work involving friable
asbestos materials.  The fixing of an exposure limit in the workplace is only one aspect of protecting
the health of workers.  The means used to ensure observance of the exposure limit are of course animportant part of the effort.  These means includ e dust collection, monitoring, employing best work
practices and, if necessary, using protective breathing equipment.  Proper monitoring of exposure
limits in workplaces is an essential criterion for correct application.  Lastly, other aspects of protection
in the workplace specifically concern secondary us ers, for example, building workers, servicing and
maintenance workers, who work with asbestos- cement, or mechanics who handle brake linings.
Controlled use mainly involves reducing the number of situations in which fibres are released (for
example, by pre-cutting of asbestos-cement pipes) and eliminating unprotected work on high-density
products.
3.344  Canada points out that the means employed for controlled use effectively reduce exposures,
which then fall within the exposure limits, as recognized by the WHO;
“Exposure is dependent upon such factors as the extent of control, the nature of the material being
manipulated and work practices […]WT/DS135/R
Page 132
Levels dropped considerably between the 1930’s and the late 1970’s and have continued to decline
substantially to the present day, owing to the introduction of controls.”467
3.345  Canada notes that the WHO goes further and states that even partial application of controlled
use methods, techniques or procedures is effective because it brings exposure levels down below
0.5 fs/ml.  If personal protective equipment is used, the exposure levels drop even lower:
“Data from industries where control technologies ha ve been applied demonstrated the feasibility of
controlling exposure levels generally below 0.5 f/ml.  Personal protective equipment can further reduce
individual exposure where engineering controls and work practices prove insufficient.”468
3.346  Canada notes that the WHO also indicates that controls eliminate fibre suspended in the air
when it becomes necessary to work on high-density chrysotile products, as may occasionally be the
case for certain workers in the construction industry.469
3.347  Canada adds that, according to the OSHA as well, controlled use is effective:
“There is substantial information available concerning both health effects and current exposure levels,
and the potential for risk reduction is great using control methods already in use in some workplaces
where mineral fibers or asbestos are manufactured or used.”470
3.348  Canada draws attention to the study by J. Peto, which shows the effectiveness of regulations,
one aspect of controlled use.  The 1995 study shows that only 5 per cent of the cases of mesothelioma
recorded were in jobs subject to regulation.471  Taking into account the latency period, the British
regulation of the asbestos industry in the 1960s, even though it allowed high levels of exposure and
the use of friable materials and amphiboles, already constituted an effective way of limiting the risks
of using asbestos.  J. Peto underlines the greater effectiveness of the regulations in the 1980s by
highlighting the marked decrease in exposure levels.  For example, the 1995 regulations in France,
i.e. before the adoption of the Decree, sufficed to protect the population against risks related to high-density chrysotile products.  Canada points out that it stressed, and the experts agreed, that for primary
users, namely, workers involved in the mining and processing of chrysotile products such as asbestos-
cement and friction materials, occupational exposure levels are low because of controlled use and,
consequently, the risk that these workers will contract an asbestos-related disease is undetectable.
Canada acknowledges that it is aware of the EC’s  objective and the experts’ concerns regarding
controlled use.  It is not so much the risk during mining of chrysotile and manufacturing that are the
cause of concern, but the risks linked to occupational exposure of secondary users.  Canada declares
that, in order to show that the EC’s objection to controlled use among secondary users is excessive, it
will comment on both products, namely, asbestos-cement pipes and friction materials.
3.349  Canada asserts that no-one can seriously contest that controlled use is as effective as a ban for
the protection of human health against risks cause d by working with asbestos-cement water pipes
buried in the ground.  Asbestos-cement pipes are almost never cut during their installation.  They are
delivered on-site ready to use and it is not necessary to carry out any work likely to produce dust.
Prefabrication of elements subsequently assembled on the spot thus makes it possible to eliminateexposure of the workers to chrysotile fibres.  If the pipes have to be cut, the use of hand tools or tools
with vacuum dust extractors allows the risks to be  eliminated.  Workers use hand tools or low-speed
mechanical tools, which create large dust particles or  chips, rather than machines that work through
                                                     
467 IPCS Environmental Health Criteria (203) on Chrysotile , WHO, Geneva, 1998, p.137.
468 Id., p.144.
469 Id., p.29.
470 See United States Department of Labor (OSHA), Synthetic Mineral Fibers: Hazard Description , on
line: OSHA <http://www.osha.gov/oshinfo/prior ities/synthetic.html> (access date: 22 June 1999).
471 Peto, J. et al ., Continuing Increase in Mesothelioma Mortality in Britain , Lancet, 1995, vol.345,
cited in IPCS Environmental Health Criteria (203) on Chrysotile , WHO, Geneva, 1998, p.123.WT/DS135/R
Page 133
abrasion.  High-speed mechanical tools are equipped with an effective and specially designed vacuum
dust extractor.  According to the OSHA, the application of control measures leads to average levels of
exposure of 0.00253 f/ml for those working with asbestos-cement pipes.472  Canada adds that the risk
of asbestos-related disease is based on the hypothesis of persistent exposure.  There are no data on
cumulative “lifetime” levels for persons exposed intermittently.  Workers using asbestos-cement pipesare, however, exposed intermittently.  In Canada’s view, the EC will readily acknowledge that few
handymen have to work with asbestos-cement pipes. Workers usually install asbestos-cement pipes by
heavy machinery and not manually.  Buried in the ground, asbestos-cement pipes are quite safe.  They
can also be taken out of the ground mechanically.  Canada asserts that controlled use is also feasible
and effective for mechanics working on brake linings.  They are in contact with the brake linings
intermittently so their cumulative exposure to chry sotile is very low.  In addition, simple methods
such as moistening and vacuum dust extractors make it possible to reduce exposure to levels at whichthe risk is undetectable, as already indicated in studies cited by Canada and discussed with the
experts.
3.350  Regarding the next objection that, according to some theoretical models not empirically
verified, workers in general are subject to risks even if cumulative exposure is within the limits laiddown under controlled use policies, Canada responds that the lower the exposure, the lower the risk.
The question is to what extent levels of exposure to a substance can be lowered in order to achieve a
significant and measurable reduction in the risk for workers?  Canada notes that the most recent data
published, as well as the latest retrospective reviews on the relationship between exposure and the
effect of chrysotile asbestos are revealing:  when levels of exposure to around 40 f/ml over 20 years(or 20 f/ml over 40 years) are reached, the excess risk of lung cancer related to chrysotile asbestos,
although it still exists, has become undetectable.  If a safety factor is introduced by imposing a level
that is ten times lower, for example, 2 f/ml over 40 years, it is obvious that the risk, although it still
exists, remains undetectable.  Canada points out that Drs. de Klerk and Musk agree that current
epidemiological data does not show an excess health risk at low levels of exposure to chrysotile,lower than the exposure limits under controlled use.  Dr. Henderson acknowledges that “no increase
in risk of mesothelioma has been identified at very low-level exposures”.  A review of eight studies of
cohorts exposed to chrysotile by Browne and Gibbs led the authors to conclude that “there exist levels
of exposure below which risks are for practical purposes zero”.
473
3.351  Canada maintains that, if France had based its asbestos regulations on a serious examination
of the feasibility and effectiveness of controlled use product-by-product, it would – at the very least –have authorized asbestos-cement pipes and friction materials.  But this is not the case:  the French
Decree bans asbestos-cement pipes and friction materials, two products which handymen and non-
specialized workers never or only exceptionally use and for which controlled use is feasible and
effective.  The Decree is therefore not based on any serious examination of the feasibility and
effectiveness of controlled use product-by-product, which means that it does not meet the necessitycriterion in Article 2.2.  According to Canada, France could have regulated the application and use of
asbestos through non-discriminatory technical regulations dealing inter alia  with monitoring the
average concentrations of asbestos fibres in the workplace, which France in fact does for the
exemptions allowed.  In addition, France could have regulated the manufacture of high-density
materials by eliminating work likely to release dust, just as the construction industry gives workersproper training on how to handle these materials.  The effect or the purpose of such measures would
not have been to create unnecessary obstacles to international trade and at the same time would have
enabled the objective of protecting health to be attained.
                                                     
472 See OSHA, on line OSHA <http://www.osha.slc.gov (access date: 22 June 1999), Tables 5 and 6.
473 Browne, K., and Gibbs, G., Chrysotile Asbestos – Thresholds of Risk , in Chiotany, K., Hosoda,
Y., Aizawa, Y., eds. Advances in the Prevention of Occupational Respiratory Disease, Elsevier, Amsterdam,1998.WT/DS135/R
Page 134
3.352  To conclude on Article 2.2 of the TBT Agreement, Canada points out that its examination
shows that the French ban on chrysotile asbestos does not enhance the protection of human health.
The objective sought by France is not achieved by a ban.  There is no rational link between the French
ban on chrysotile and France’s objective.  Moreover, within the meaning of Article 2.2 of the TBT
Agreement, the French measure is not necessary in regard to the objective sought.  The ban does notaddress the real health problem associated with asbestos:  the friable products and the amphiboles
already in place.  It is a bold step for the ban to replace chrysotile by the risk of substitute fibres.
Furthermore, the ban, by covering high-density chrysotile products, does nothing to raise the level of
protection of human health.  The French Decree is an excessive measure “more trade-restrictive than
necessary” to achieve France’s objective because the objective could be achieved by a measure that is
less trade-restrictive and which Canada has presented:  a regulatory system that is, first of all, really
based on a rigorous examination of the risks product-by-product and use-by-use and then by anexamination of the feasibility and effectiveness of controlled use product-by-product.
3.353  The European Communities  wish to recall that any Member of the WTO has the right to
establish the level of health protection it deems appr opriate in its territory.  The EC note that, within
the context of Article XX(b) of the GATT, all the Panels which have examined the concept ofnecessity have concluded that it was not the necessity of the objective pursued by the measure
concerned that should be examined but whether or not it was necessary to submit the imported
products to the measure contested in order to achieve the chosen level of protection (e.g. United States
- Section 337 , Thailand - Cigarettes  and United States - Gasoline  Panel reports).  It follows that,
whereas the trade measures that make it possible to achieve the desired objective must satisfy certainconditions, there is no restriction on the level of protection chosen by the Member. Accordingly, the
EC consider that France was free to choose the level of protection it deemed appropriate in the present
case, i.e. to halt the spread of the risk linked with the use of asbestos fibres and products containing
such fibres. The EC again point out that, even t hough the test of necessity within the context of
Article 2.2 of the TBT Agreement corresponds, in particular, to the test in Article XX(b) of theGATT, it nonetheless remains true that the burden of proof within the context of the TBT Agreement
lies with the party which invokes a specific provision of the Agreement to establish the inconsistency.
The EC indicate that the arguments it develops on the necessity criterion are also applicable in the
context of Article XX(b) of the GATT.
3.354  The EC maintain that the necessity criterion under Article 2.2 of the TBT Agreement
involves, inter alia , examining whether a less restrictive measure is available to a Member and could
be employed to fulfil that Member’s legitimate obje ctive. The EC note in this respect that, in their
written and oral replies, the scientific experts all agreed that banning the use of all types of asbestos,
including high-density asbestos-containing cement products, to which Canada attempts to limit the
scope of this dispute, was in fact the only real option available to France to achieve its legitimate
objective of protecting human health. This is because all types of asbestos are classified as proven
human carcinogens and because the so-called “controlled use” advocated by Canada is in practiceunfeasible and unrealistic.  The EC note that Dr. Henderson gave a number of reasons why it is
unrealistic and impossible to apply such a use in practice and cited examples of concrete cases in
which he personally observed the absence of any kind of “controlled use”. Dr. Infante also explained
that in the United States several hundreds of violations continue to arise, whether in the
manufacturing of asbestos-containing cement produc ts or in subsequent downstream situations,
despite the controls exercised and the fines applied by the United States authorities.  Dr. de Klerk,
when discussing this issue, said that “at best it is imprudent” to wish to continue exporting asbestos,
for example to least developed or developing countries, because it is impossible for them to apply
such a controlled use.
3.355  The EC also recall that, since the beginning of this dispute, Canada has been avoiding a
precise definition of what it means by the term “controlled use”. As a last attempt to confuse the legalWT/DS135/R
Page 135
debate, in its comments on the replies of the experts474, Canada finally defined the way it understands
the concept of “controlled use”. But that description of “controlled use” has never been explained in
such detail until now, none of the experts chosen by the Panel have ever heard of it before, and they
have explicitly stated that they know of no inte rnational standard or recommendation suggesting that
such a use will substantially reduce or eliminate the risks of asbestos-related diseases.  In addition, allthe experts found that the conditions of use mentioned by Canada in its comments are impossible to
apply in practice in a way that will enable the level of protection chosen by France to be attained.
According to the EC, Dr. Henderson and the other experts agreed with the EC’s argument that the
problem France faces because of the existing asbestos in place and the risks associated with its
removal do not in any way justify the continued use of asbestos and the perpetuation of the serious
risks to human health through the further introduction of asbestos into the environment. France, like
other countries, has been trying to deal in the best way possible with the problems for human healthposed by the asbestos in place and it took measures for this purpose a long time ago. But experience
and science have shown that these measures cannot eliminate the risks to human health. In the EC’s
view, there is no provision in the TBT Agreement nor in the WTO Agreements that could oblige
France to continue using chrysotile asbestos, due to  the difficulties it (like other countries) faces in
eliminating the risks from past mistakes when the use of chrysotile asbestos was allowed.
3.356  As for the second sentence of Article 2.2 of the TBT Agreement (“taking account of the risks
non-fulfilment would create”), the EC consider that , here again, this is an integral part of the
implementation of the test of necessity under Arti cle XX(b) of the GATT.  In fact, a restrictive
measure is “necessary” only if there are risks associated with the non-adoption of the measure in
question.  The purpose of this sentence is to deny Members the possibility of adopting measures,under cover of protecting human health, without having taken into account the risks associated with
the use of the product that is banned.  Such risks should be assessed, in particular, on the basis of the
available scientific and technical information.  The EC comment that they have shown, and all the
experts have agreed, that under the so-called “safe use” policy there continues to be a significant
excess of deaths in the asbestos production and processing sector.  Moreover, this policy does notoffer any meaningful and realistic protection, in particular for the secondary or downstream users
exposed to asbestos (carpenters, electricians, do-it-yourself enthusiasts, etc.) because they cannot be
aware of the risks in all situations and the risks frequently become apparent many years after
exposure. The EC point out that they have also asserted (and all the experts have agreed) that there
exist several safer alternative products that can replace nearly all the uses of asbestos. Indeed, all the
scientists agreed with Dr. Infante and Dr. Henderson that the available scientific evidence shows that
none of the substitute non-fibrous or fibrous  products is dangerous to human health or as dangerous as
asbestos, including chrysotile asbestos. Dr. Infante also stated that it is unreasonable to continue using
chrysotile asbestos simply because there exist some doubts about some fibrous products.
3.357  The EC also wish to respond to Canada’s claim, completely unjustified in their view, that the
French ban on asbestos was taken for reasons of “political necessity”, not out of real concern to
protect human health. This is plainly wrong and contradicts all the scientific evidence coming from somany countries that already banned asbestos before France and from so many international
institutions such as the WHO, the IARC, the ILO, etc., which all recommend that asbestos be banned
and replaced.  The EC ask whether Canada can really argue that all these countries and all these
international institutions have done so for reasons of political necessity?  Certainly not in the EC’s
view.
(d) Article 2.4 of the TBT Agreement
3.358  Canada  maintains that Article 2.4 lays down the principle that, where technical regulations
are required and relevant international standards exist, Members shall use them, or the relevant parts
of them, as a basis for their technical regulations if they are effective and appropriate for the
                                                     
474 See Section V.D.1, comments by Canada concerning question 5(a) from the Panel.WT/DS135/R
Page 136
fulfilment of the objective being pursued.  Under Article 2.4, it is up to the Panel to determine:
(i) whether a technical regulation on chrysotile is required;  (ii) whether there are international
standards concerning chrysotile;  (iii) whether the international standards are an effective and
appropriate means for the fulfilment of the objective pursued; and (iv) whether the Decree is based on
international standards.  Canada recognizes that it is important for governments to take action to
manage the risks associated with the use of asbestos fibre.  Therefore, Canada does not dispute the
fact that action is required to manage the risks associated with asbestos fibres and their uses.
However, in this case, it is the excessive nature of the French action that is being challenged.  Such
action must be based on existing international standards that recognize the controlled use of asbestos,
which, in practice, eliminates any health risk, i.e. the objective pursued by France.  Canada submits
that, in the case of chrysotile fibre, a regulation and not a ban is required pursuant to Article 2.4.
Canada points out that it in fact implements and encourages the regulation of the “safe” or“controlled” use of chrysotile fibre, the required and approved form of action.  Prior to the adoption of
the Decree, France practised controlled use.  Canada has already emphasized that a set of measures
existed prior to the adoption of the Decree and guaranteed the protection of people’s health in France.
3.359  Canada claims that international standards, with in the meaning of Article 2 of Annex 1 to the
TBT Agreement, exist for the controlled use of chrysotile fibre.  Convention 162 and
Recommendation 172 of the International Labour Organization concerning safety in the use of
asbestos by workers constitute such international standards.
475 They set forth rules and guidelines for
the use of asbestos, in particular chrysotile fibre, as well as processes and production methods for
products containing it.  The ILO Code of Practice on Safety in the Use of Asbestos – endorsed byConvention 162 and Recommendation 172 - constitutes another international standard.
476 The Code
contains standards and practical instructions aimed at preventing the risks faced by workers using
chrysotile. These standards govern all the stages of exposure to asbestos by proposing safe procedures
and methods; from the extraction of the fibre to the transportation of products containing it, from the
manufacturing of products containing fibre to their maintenance.  Standards for the use of chrysotile-cement materials are included in the Code for chrysotile-cement products – Guidelines for On-Site
Work  of the International Organization for Standa rdization (International Standard ISO-7337).
477
3.360  Canada contends that existing international standards are effective and appropriate for
fulfilling the objectives of protecting human health.  International standards such as those in
                                                     
475 ILO, Convention concerning Safety in the Use of Asbestos  (Convention 162), adopted on
24 June 1986, International Labour Conference, Geneva;  ILO, Recommendation concerning Safety in the Use
of Asbestos  (Recommendation 172), adopted on 24 June 1986, International Labour Conference, Geneva.
476 ILO, Code of Practice on Safety in the Use of Asbestos, International Labour Organization, Geneva,
1984.
477 Canada notes that, in the area of public works, chrysotile-cement pipes are used in the construction
of piping systems. These pipes are machined into varied  lengths that can meet the specifications of buyers and
are equipped with couplers that can ensure the linkage between two pipes without the need for cutting orgrinding. In the event that the cutting or grinding of chrysotile-cement pipes nonetheless turns out to beinevitable, there are simple techniques, described by standard ISO-7337 that can guarantee the safety of workerson sites.  Standard ISO-7337 was designed to be applied at the time of the cutting or grinding of any hardchrysotile-cement product.  For example, the cutting of plates or tiles for roof covering, is not a source of
emission if the simple techniques of standard ISO-7337 are followed.  These techniques consist, in particular, of
the use of chains that break the pipes by the effect of pressure, low-speed saws and saws equipped with avacuum dust extractor, as well as the moistening of the ma terials prior to any action. The cutting or grinding of a
cement pipe, whether or not it contains chrysotile, can also release silica in the air.  The International Agencyfor Research on Cancer (IARC) rates silica among group 1 carcinogens (proven for humans), like asbestos.  Aworker who cuts any cement pipe therefore has an interest in following the instructions recommended in
standard ISO-7337. See also the studies Baujon, Authier & Thomazo, Détermination de concentrations de fibres
d’amiante dans l’atmosphère au voisinage de construction en amiante ciment, (October 1993 ), and
Détermination de concentrations de fibres d’amiante dans l’atmosphère lors de la pose sur chantier de plaques
ondulées et d’ardoises en amiante-ciment, (July 1993), Laboratoire d’hygiène et de contrôle des fibres
minérales , Paris.WT/DS135/R
Page 137
Convention 162, Recommendation 172, the ILO Code of  Practice and standard ISO-7337 provide for
controlled and safe use of asbestos.  The wording of these standards indicates very clearly that
asbestos fibres should only be replaced if it is established that this is necessary to protect the health of
workers and if it is technically feasible.  However, replacement of chrysotile asbestos fibre in modern
materials or products, where it is sealed in a matrix and cannot be released into the environment, isnot necessary to ensure the protection of workers’ health because these products do not pose any
detectable risks against which workers would need to be protected.  Canada states that it has already
clearly shown the absence of a detectable health risk  linked to the controlled use of chrysotile fibre,
including its incorporation in safe modern material s. As the measures set forth in the international
standards described above are, with respect to controlled use, both effective and appropriate to protect
people’s health from the risks posed by exposure to chrysotile fibre, the total ban on the modern uses
of chrysotile was not necessary.
3.361  Canada asserts that the Decree is not in comp liance with international standards because it
imposes a total ban on chrysotile fibre rather than providing for the controlled and safe use of this
fibre and of its uses.  Canada contends that a ban is not necessary to protect people’s health and,
consequently, is not in compliance with the relevant  international standards.  International standards
impose an approach that is quite different from the complete ban without distinction as to the type offibre or its use.  International standards impose an approach whereby regulation of asbestos must take
into account the type of fibre, the products in which a type of fibre is incorporated and the intended
uses of each product. Convention 162  and Recommendation 172 provide for the banning of
crocidolite
478 and materials containing brittle sprayed asbestos479, as well as the elimination of certain
other uses (work processes), if the national author ity deems these measures to be necessary for the
protection of workers,480 but only if the substitute products have undergone a thorough scientific
evaluation of their effects on health.481  According to Canada, the EC have recognized that controlled
use would ensure adequate protection of the health of workers in the chrysotile industry (extraction,
manufacturing of chrysotile-cement, for example).482  Canada considers that, given this recognition of
the effectiveness of the principles of controlled use upon which international standards are based, theEC must prove that the international standards are ineffective and inappropriate in order to comply
with Article 2.4. Canada submits that the burden of proof rests with the EC.  Canada also maintains
that the Decree is not necessary pursuant to Convention 162  or Recommendation 172  because,
according to the EC themselves, there are only certain specific categories of workers, on projects
involving brittle materials containing asbestos, that are at risk. The Decree does not resolve the
problem that these workers face.  Canada also indicates that the EC cannot claim that Convention 162
                                                     
478 ILO, Convention concerning Safety in the Use of Asbestos  (Convention 162), adopted on
24 June 1986, International Labour Conference, Geneva, Article 11.
479 Id., Article 12.
480 Article 10 of Convention 162  reads as follows:
“Where necessary to protect the health of  workers and technically practicable, national laws or
regulations shall provide for one or more of the following measures:(a) replacement of asbestos or of certain types of as bestos or products contai ning asbestos by other
materials or products or the use of alternative technology, scientifically evaluated by the competentauthority as harmless or less harmful, whenever this is possible ;
(b) total or partial prohibition of the use of  asbestos or of certain types of asbestos or products
containing asbestos in  certain work processes.”
481 Paragraph 12 of Recommendation 172 reads as follows:
“12.  (1) The competent authority, wherever necessary  for the protection of the workers, should require
the replacement of asbestos by substitute materials,  wherever possible.  (2) Before being accepted for
use in any process, all potential substitute materials should be thoroughly evaluated for their possible
harmful effects on  health.  The health of workers exposed to such materials should be continuously
supervised, if judged necessary.”
482 European Commission, Directorate General III (Industry), Office A, Industrial Policy  to the
Canadian authorities as further information for Notification G/TBT/Notif.97.55 made by France to the WTOCommittee on Technical Barriers to Trade on 21 February 1997.WT/DS135/R
Page 138
or Recommendation 172 are ineffective or inappropriate when the Decree does not offer the same
objective safety warranty with respect to substitute products.  In fact, the Decree takes for granted that
any product replacing asbestos is safer than chrysotile, whereas Convention 162 and Recommendation
172 require that the replacement be carried out only if it has been “scientifically” and “thoroughly”
evaluated that each substitute product proposed is safe r.  In providing that no asbestos shall be used in
the manufacture and processing of materials, products and devices, without distinction as to the
variety of fibre or its use, the Decree is the most restrictive type of technical regulation that can exist.
The international community has nevertheless developed standards that are less trade-restrictive.
These standards enable people’s health to be protected in an effective and appropriate manner. France
has chosen to ignore these international standards a nd opted for a total ban. In view of the foregoing,
the Decree banning asbestos violates the provisions of Article 2.4 of the TBT Agreement.
3.362  The European Communities  contend that, for the purposes of the TBT Agreement, the term
“standards” has the precise meaning it is given in Annex 1 to the Agreement.  In this case, however,
the international texts referred to by Canada (the  ILO, WHO, ISO texts) do not meet the definition
concerned.  In any event, the EC consider that the French authorities used the texts referred to by
Canada in its submission “as a basis” for their Decree, within the meaning of Article 2.4 of the TBT
Agreement.
3.363  The EC point out that, as already stated, the object and purpose of the TBT Agreement, as
derived from its preamble, its background and the actual wording of several of its provisions, are to
monitor the adoption and application of “standards” and “technical regulations” which cover the
detailed characteristics of products or their methods of production.  The object and specific purpose ofthe Agreement are bound to have an impact on the meaning to be given to the term “standards”
mentioned in Article 2.4 of the TBT Agreement.  This impact is moreover recognized by the
Agreement itself, whose Article 1.1 and 1.2 are particularly explicit.  As Annex 1 contains a definition
of “standard”, according to the EC, the drafters of the TBT Agreement must have wished to use a
specific definition of “standard” for the purposes of the Agreement's application.  This specificdefinition appears in Annex 1 and it follows from this definition that the TBT Agreement encourages
the use of international standards, but solely  those which can provide rules, guidelines or
characteristics for products or related processes and production methods.  But in this case, the EC note
that the international texts referred to by Canada do not satisfy the definition contained in Annex 1 to
the TBT Agreement and cannot therefore be used “as a basis” for technical regulations.  Neither the
ILO and WHO documents nor the ISO standards can be considered as laying down the characteristics
of asbestos fibres or an ordered set of rules for the manufacture of this product.  Even less can they beconsidered as laying down the characteristics of asbestos-containing products or an orderly set of
rules for the manufacture of those products. These are texts that certainly do not satisfy the definition
of “standard” within the meaning of the TBT Agreement.
3.364  In the alternative, the EC mainta in that, even if the Panel were to consider that the texts cited
by Canada in its submission are “standards” within the meaning of the TBT Agreement, it has to be
recognized that these texts were used “as a basis” for the adoption of the Decree.  The phrase “as a
basis for” could be compared with the term “on the basis of” used in the SPS Agreement, a term for
which the Appellate Body (Hormones) indicated: “... we disagree with the Panel’s interpretation that
‘based on’ means the same thing as ‘conform to’.”
483  “A thing is commonly said to be ‘based on’
another thing when the former ‘stands’ or is ‘founded’ or ‘built’ upon or ‘is supported by’ the
latter.”484  If this definition is followed, the EC conclude that the international texts quoted, or
sometimes not quoted, by Canada serve “as a basis” for the Decree.
3.365  The EC indicate that, as early as 1986, ILO Convention 162 stated:
                                                     
483 EC Measures concerning Meat and Meat Products (Hormones) , report of the Appellate Body,
WT/DS26/AB/R and WT/DS48/AB/R, adopted on 13 February 1998, para.166.
484 Id., para.163.WT/DS135/R
Page 139
“Where necessary to protect the health of work ers and technically practicable, national laws or
regulations shall provide for one or more of the following measures:
(a) replacement of asbestos or of certain types of asbestos or products containing asbestos by
other materials or products or the use of alternative technology, scientifically evaluated by thecompetent authority as harmless or less harmful, whenever this is possible.
(b) total or partial prohibition of the use of asbestos or of certain types of asbestos or products
containing asbestos in certain work processes.”485
3.366  Similarly, ILO Recommendation 172 also indicated in 1986 that:
“… asbestos should be used only when its risks can be prevented or controlled; otherwise, it should be
replaced, when technically feasible, by other mate rials or the use of alternative technologies,
scientifically evaluated as harmless or less harmful.”486
3.367  The EC note that, more recently, a WHO report specifically dealing with chrysotile was even
more categorical.  The summary of its conclusions and recommendations states:
“Exposure to chrysotile asbestos poses increased risks for asbestosis, lung cancer and mesothelioma in
a dose dependent manner. No threshold has been identified for carcinogenic risks.  […] Where safersubstitute materials are available for chrysotile, they should be considered for use. […] Some asbestoscontaining products pose particular concern and chrysotile use in those circumstances is notrecommended. These uses include friable products with high exposure potential. Construction materialsare of particular concern for  several  reasons.  The construction industry work force is large and
measures to control asbestos are difficult to ins titute. In-place building materials may also pose risk
control to those doing alterations, maintenance and demolition. Minerals in place have the potential to
deteriorate and create exposures.”
487
3.368  The EC conclude from these texts that:  (i) the banning or replacement of asbestos fibres or
asbestos-containing products may be decided in cases where this is necessary to protect the health of
workers and is technically feasible;  (ii) where substitute materials are considered safer, they must be
used to replace asbestos;  (iii) control of the use of asbestos, including chrysotile, in the construction
industry is difficult to introduce.  According to the EC, this conclusion by the WHO contradicts
Canada's statements that the “safe” or “modern” use of asbestos would do away with any risk
connected with its use.  The Decree is completely in line with these conclusions.  The EC add that
Article 2.4 of the TBT Agreement also provides that international “standards” must be ignored when
they are “ineffective or inappropriate”.  Such is clearly the case and the ISO standard provides a
perfect illustration of this point.  At the time it was published in 1984, this standard represented a
major step forward in relation to the arrangements prior to that date, but it does not guarantee
sufficient levels of protection in the light of the health objective adopted by the vast majority of
countries, and by France in particular.  In the light of the foregoing, the EC therefore maintain that the
Decree is compatible with Article 2.4 of the TBT Agreement.
3.369  Canada  asserts that Article 2.4 of the TBT Agreement sets out the principle that, where
technical regulations are required and relevant international standards exist, Members shall use them,
or the relevant parts of them, as a basis for their technical regulations when such international
standards are an effective and appropriate means for the fulfilment of the objective pursued.  This
                                                     
485 ILO, Convention concerning Safety in the Use of Asbestos  (Convention 162), adopted on 24 June
1986, International Labour Conference, Geneva.  ILO, Recommendation concerning Safety in the Use of
Asbestos  (Recommendation 172), adopted on 24 June 1986, International Labour Conference, Geneva.
486 Recommendation concerning Safety in the Use of Asbestos  (Recommendation 172), adopted on
24 June 1986, International Labour Conference, Geneva.
487 IPCS Environmental Health Criteria (203) on Chrysotile , WHO, Geneva, 1998, p.144.WT/DS135/R
Page 140
means that, in this case, the Panel must determine:  (i) whether a technical regulation concerning
chrysotile is required;  (ii) whether there are releva nt international standards concerning chrysotile;  if
so, (iii) whether the international standards are effective and appropriate for the fulfilment of the
objective pursued;  and (iv) whether the Decree is based on these international standards.
3.370  Canada acknowledges that it is important for governments to take action to manage the risks
posed by asbestos.  However, in the case of chrysotile fibre, this action cannot legally take the form of
a ban.  A regulation concerning the “controlled” use of chrysotile fibre and products containing it is
the required and appropriate form of action.  Canada contends that there are relevant international
standards concerning controlled use of chrysotile fibre.  These are to be found in Convention 162 and
Recommendation 172 of the ILO, the ILO Code of Practice on Safety in the Use of Asbestos, and
Standard ISO-7337 – chrysotile-cement products – Guidelines for on-site work practices. Canada
rejects the EC’s claim that these are not standards within the meaning of Annex 1 to the TBTAgreement. The ILO and ISO documents fully meet the criteria of the definition in Annex 1 to the
TBT Agreement. They are documents approved by recognized bodies that provide “process and
production methods” for chrysotile-based products.  Canada notes that the EC have not, however,
disputed the relevance of these international standa rds.  The ordinary meaning of the word “relevant”
is: “bearing on or pertinent to the matter in hand”.  The standards cited deal with the same product:asbestos.  Furthermore, they have an identical objective, namely, the safe use of asbestos.  These
international standards are relevant because they relate to the use of chrysotile asbestos in a safe and
controlled manner.
3.371  Canada contends that international standards such as those contained in Convention 162,
Recommendation 172, the ILO Code of Practice and Standard ISO-7337 prescribe a safe andcontrolled use of asbestos.  According to Convention 162, the use of substitute products is encouraged
only “Where necessary to protect the health of workers and technically practicable […] by other
materials or products or the use of alternative technology, scientifically evaluated by the competent
authority as harmless or less harmful …”
488  According to this standard, chrysotile fibre should not be
replaced in high-density products because it is trapped in a matrix from which it cannot escape.Furthermore, Canada has also stressed that controlled use of high-density chrysotile-based products
presents, at most, an undetectable risk to human health.  As the measures prescribed by these
standards are both effective and appropriate to protect human health against the risks posed by
exposure to chrysotile, a total ban on chrysotile, and consequently on modern uses of chrysotile, is not
necessary.  According to Canada, the EC have not prov ided evidence that it is necessary, in this case,
to set aside these international standards on the grounds that they are ineffective or inappropriate.  In
order to avoid rendering Article 2.4 ineffective, an interpretation consistent with the precepts of theinternational law of treaties requires that, in order to set aside a relevant international standard, a
Member must provide evidence of a “fundamental” problem and not a simple allegation that the
relevant standards are not appropriate.
3.372  Canada points out that Article 2.4 of the TBT Agreement requires that Members use relevant
international standards or their relevant parts as a basis for their technical regulations.  According tothe ordinary meaning of the words, this means that a technical regulation must be based on
international standards or relevant parts thereof.  In other words, a technical regulation must take what
is set out in the international standards as its basi c principle or starting point. The technical regulation
adopted by a Member does not have to be identical to the international standards, but when they are
relevant, the technical regulation must use them as a foundation or logical starting point.  Canada
contends that the international standards concerning asbestos are relevant.  The international standards
do not call for a complete ban without distinction as to the type of fibre or its use.  They propose
rather an approach whereby the asbestos regulations must take into account the type of fibre, the
products in which a type of fibre is incorporated, and the intended uses of each product.  The
                                                     
488 ILO, Convention concerning Safety in the Use of Asbestos  (Convention 162), adopted on
24 June 1986, International Labour Conference, Geneva.WT/DS135/R
Page 141
international standards thus propose a less trade-rest rictive approach while at the same time stressing
the protection of human health in an effective and appropriate manner.  France has chosen to ignore
these international standards, preferring instead a total ban.  What is more, the French technical
regulation deviates so much from the international standards that their basic principles are no longer
recognizable.  Canada points out that the EC have offered no explanation of the reasons that mighthave justified France’s total rejection of these standards as the logical starting point for its regulations
on asbestos.  Given the foregoing, the Decree banning asbestos is inconsistent with the provisions of
Article 2.4 of the TBT Agreement.
3.373  The European Communities  contend that the texts cited by Canada do not fall within the
scope of the TBT Agreement and are therefore not relevant under Article 2.4 thereof because they do
not correspond to the definition of “standard” in Annex 1 to the Agreement.  In fact, the terms of the
ILO, ISO and WHO texts, in their particular context, do not lay down guidelines or characteristics forproducts or related production processes and methods, nor is that their object and purpose.  At best,
they can be treated as assessments of the risks created by asbestos and asbestos-containing products
rather than as establishing international technical standards or conformity assessment procedures.  The
EC point out, for example, that the Constitution of the ILO (preamble) specifically provides for “the
protection of the worker against sickness, disease a nd injury arising out of his employment”.  As for
the Philadelphia Declaration (Article III-g) concerning the aims and objectives of the ILO, it provides
for “adequate protection for the life and health of workers in all occupations”.  The ISO texts are
conceived in the same spirit.  Similarly, Article 3 of ILO Convention 162 of 1986 states that “National
laws or regulations shall prescribe the measures to be taken for the prevention and control of, and
protection of workers against, health hazards due to occupational exposure to asbestos.”  According topoint 1(i) of the scope and definitions of ILO Recommendation 172 of 1986, “The provisions of the
Asbestos Convention, 1986, and of this Recommendation should be applied to all activities involving
a risk of exposure of workers to asbestos in the co urse of work.”  Thus, the EC consider that the ILO
and ISO texts are not relevant standards within the meaning of Article 2.4 of the TBT Agreement.
3.374  The EC, after responding to the question of whether or not a standard was relevant,
emphasizes that Article 2.4 raises the question of whether the standard is effective or appropriate.
This Article prescribes in particular that “…Members shall use [these international standards] ...
except when such international standards or relevant parts would be an ineffective or inappropriate
means for the fulfilment of the legitimate objectives pursued, for instance because of fundamental
climatic or geographical factors or fundamental technological problems”.  Before considering the case
at issue, the EC would like to spell out the circumstances in which a standard might be consideredineffective or inappropriate within the meaning of this provision.  The EC consider that the level of
protection deemed appropriate by the Member could be a factor in making international standards
ineffective or inappropriate. Within the context of the TBT Agreement, a Member is free to choose
the level of protection it deems appropriate.  An international standard is only effective or appropriate
if it enables the Member to achieve the legitimate objective it has set itself.  Advances in scientificknowledge can also lead to the application of obsolete standards being ruled out.  A systematic
comparison of the WTO Agreement (in this specific case the TBT Agreement) with the NAFTA
Agreement - a GATT Article XXIV agreement negotiated at the same time as the WTO Agreements –
reveals that, on the subject of technical barriers to trade, the NAFTA Agreement provides as follows:
“1. Each Party shall use, as a basis for its standards-related measures, relevant international
standards or international standards whose completio n is imminent, except where such standards would
be an ineffective or inappropriate means to fulfil its legitimate objectives, for example because offundamental climatic, geographical, technological or infrastructural factors, scientific justification orthe level of protection that the Party considers appropriate.
2. A Party's standards-related measure that conforms to an international standard shall be
presumed to be consistent with Article 904(3) and (4).WT/DS135/R
Page 142
3. Paragraph 1 shall not be construed to prevent a Party, in pursuing its legitimate objectives,
from adopting, maintaining or applying any standards-related measure that results in a higher level ofprotection than would be achieved if such measure were based on an international standard.”
3.375  The EC therefore consider that scientific reasons or the level of protection deemed
appropriate by the Member are factors that could render an international standard ineffective or
inappropriate within the meaning of Article 2.4 of the TBT Agreement.  In the present case, the EC
consider that the standards cited by Canada do not make it possible to achieve the level of protection
deemed appropriate by France insofar as:  (i)  there can be no doubt that chrysotile asbestos is aproven carcinogen;  (ii) there is no exposure limit (threshold) for chrysotile asbestos and asbestos-
containing products;  (iii) so-called “safe” use is not applicable in all circumstances nor to every type
of person who may come in contact with asbestos  or asbestos-containing products and, moreover,
does not eliminate every risk;  and (iv) there are substitute products that are safe, or safer, than
chrysotile asbestos.
3.376  The EC consider that, in the circumstances, it is clear that an international standard which
permitted the use of asbestos or asbestos-containing products or which established an exposure limit
or recommended “safe” use would be ineffective or inappropriate for achieving the level of protection
deemed appropriate by France.  France has chosen, as the level of protection deemed appropriate, tohalt the spread of the risk associated with the use of asbestos.  These risks mainly concern
“secondary” users.  The ISO standard and the ILO texts do not make it possible to achieve the
legitimate objective pursued by France, inasmuch as they apply only to a limited number of
“workers”, in the occupational sense of the term.  According to the EC, in the present case, the only
texts that might be of some interest are those of the WHO and the IARC.  They may be defined asassessments of the risks posed by asbestos and asbestos-containing products. France is complying
fully with the WHO rules and has chosen to make no further use of asbestos and to replace such
products with substitutes.  Moreover, the ban provides for waivers that make it possible to take into
account certain specific situations in which the use of asbestos remains necessary because there is no
substitute that would ensure equivalent performance while being less of a threat to health.
Accordingly, in the light of the above, the EC consider that the Decree is compatible with Article 2.4
of the TBT Agreement.
3.377  Canada reaffirms its arguments concerning Article 2.4 of the TBT Agreement, namely:
(i) effective and appropriate international standards on asbestos exist;  and (ii) the Decree is not based
on international standards.  According to Canada, the EC’s position, which asserts that the standards
recommend the replacement of all types of asbestos by less harmful or harmless materials, is the resultof a summary and simplistic examination.  The texts cited by Canada as international standards come
from the ILO and the ISO.  Canada points out that it did not mention, for example, Environmental
Health Criteria for Chrysotile Asbestos (203) of the WHO as a standard within the meaning of
Article 2.4 of the TBT Agreement because it does not see how this text could be considered a standard
when the WHO itself presents it as a risk assessment.  Furthermore, contrary to what the EC suggests,the WHO recommendations are not to cease using chrysotile asbestos and to replace it with substitute
products.  Rather, the WHO suggests that consideration be given to replacing chrysotile by harmless
substitute products where such materials are available.  Canada refers the Panel to the arguments
already put forward concerning Article 2.4 and adds some comments relating to the two issues:  on
the one hand, the effectiveness and appropriateness of the international standards and, on the other,the question of whether these standards were used as a basis for the Decree.
3.378  Canada contends that the international standards are effective and appropriate. Article 3.1 of
Convention 162 of the ILO provides that “National laws or regulations shall prescribe the measures
to be taken for the prevention and control of and protection of workers against health hazards due to
occupational exposure to asbestos”.  The purpose of the ILO Code of Practice is similar. The object
of international standard ISO 7337 is to provide “guiding principles for the tools and methods to beused on site so as to keep dust emissions as low as possible […]”.  In Canada’s view, theWT/DS135/R
Page 143
international standards must be appropriate because their purpose and the objective of protecting
human health put forward by France are one and the same.  Canada notes that the EC give two
reasons to justify the inappropriateness and ineffect iveness of the standards, namely:  (i) scientific
grounds;  and (ii) the level of protection deemed appropriate by France.  The EC obfuscate on this
point.  They reject the standards of the ILO and the International Labour Office on the pretext thatthey recommend controlled use, a means of protection that is unacceptable to France, which now
only cites the WHO.  Canada points out that, in th eir first written submission, the EC did not reject
the ILO standards but claimed that they recommended a ban on asbestos and its replacement by less
harmful substitute fibres.  Canada can only explain this sudden change in position by implicit
recognition that the standards mentioned by Canada do not recommend a ban and the replacement of
all types of asbestos and all their uses.  Regarding the reasons for ineffectiveness and
inappropriateness, namely, the scientific grounds, it is unthinkable to claim that progress in scientificknowledge leads to disregard for international standards.  These standards recommend taking
effective and appropriate measures to protect human health against the risk of exposure to chrysotile.
To disregard an international standard, it is necessary to provide evidence of a fundamental situation
that makes the standard ineffective or inappropriat e.  According to Canada , the EC have not shown
that recent scientific discoveries have made the international standards cited by Canada obsolete,standards which, moreover, reflect the WHO’s recommendations in its recent assessment of the risks
of chrysotile asbestos.
3.379  As far as the second reason for ineffectiveness and inappropriateness is concerned, namely,
the non-fulfilment of the level of protection deemed appropriate by France, Canada does not contest aMember’s freedom, within the framework of the TBT Agreement, to choose the level of protection it
deems appropriate, but nevertheless considers that the international standards are effective and
appropriate because they enable France to achieve its objective, namely, to protect human health.
Canada notes that the EC hold the contrary position fo r the following four reasons:  (i) chrysotile is a
proven carcinogen;  (ii) there is no exposure limit (threshold) for chrysotile;  (iii) safe use is notfeasible in all circumstances and for all persons and does not eliminate all the risks;  and (iv) there are
substitute products which are safe, or safer, than chrysotile.  Under such circumstances, the EC point
out that the only texts that are effective and appropriate are those which advocate ceasing to use
asbestos, banning it and replacing it with substitute products.  Canada, for its part, considers that the
international standards make it possible to achieve the level of protection of human health deemed
appropriate by France for four reasons:  (i) chrysotile is less harmful than amphiboles;  (ii) the
understanding of certain mechanisms by which the fibres cause certain diseases makes plausible theexistence of a threshold of exposure below which no cancer can develop;  (iii) controlled use is
possible;  and (iv) the risks associated with substitute fibres are not known.
3.380  Canada maintains that there is a broad consensus among the scientific community that
chrysotile asbestos is less harmful than amphi bole asbestos.  The WHO draws a distinction between
chrysotile and amphiboles as far as the risks to human health are concerned.  Three of the four experts
consulted by the Panel recognize that chrysotile asbestos is less dangerous.  The international
standards, as well as the national regulations in a number of countries, take into account the difference
in the harmfulness of different types of asbestos by laying down higher exposure limits for chrysotile
than for amphiboles.  Canada recalls that it has already explained that the difference in harmfulnesscan be explained by the different chemical compositions, physical properties and biopersistence of
amphiboles and chrysotile.
489  The question of controlled use has already been examined.  Canada
asserts that controlled use is feasible and effective and gives workers and do-it-yourself enthusiasts
adequate protection.  The control measures have proved their effectiveness in the mining and
processing sectors.  According to Canada, studies show that it is possible to produce chrysotile fibreand manufacture asbestos-cement or friction materials in places where exposure levels are strictly
                                                     
489 See Canada’s arguments in Section III.B, as well as the comments on the replies by the experts,
especially those concerning question 3 from the Panel.WT/DS135/R
Page 144
controlled and kept below safe levels, where worker s are not exposed to any increased risk of disease
due to exposure to chrysotile.
3.381  With regard to secondary users, in Canada’s vi ew this is a false problem.  Threats to the
health of secondary users are due to friable materials, in particular sprayed asbestos already in situ .
As Canada has already pointed out, this debate does not concern friable materials, but high-density
products (water pipes, roof tiles, cladding, guttering, friction linings), in other words, products in
which the fibres are encapsulated and cannot be released into the ambient air.  The recommended
methods of installation eliminate the need to cut or drill these products on building sites because they
are delivered in a number of pre-cut and pre-drilled sizes according to the buyer’s specifications.  If
such operations are necessary, the risks can be reduced to undetectable levels by using proper hand
tools or tools equipped with vacuum dust extractors.  By using appropriate tools and practices(moistening, for example), the emission of fibres du ring intermittent work can be kept at levels below
those deemed safe.  In Canada’s view, the effect of intermittent exposure on the health of workers
naturally depends on protective measures, but also on the intensity and duration of the exposure.  It is
in fact cumulative exposure that determines the risk .  For those working with chrysotile intermittently,
cumulative exposure levels are usually low, precisely because the work is intermittent.  This is evenmore true for do-it-yourself enthusiasts, who work even less with high-density products than
construction workers.  Canada points out that these considerations come from Dr. Henderson’s reply
to question 5(e) by the Panel:  “ … the risks from occasional or infrequent interventions on chrysotile-
only products (e.g. by home ‘handymen’) – although not quantifiable because of absence of data –
must be very small for lung cancer and mesothelioma, and non-existent for asbestosis”.
3.382  Canada rejects the EC’s claim that the substitutes most commonly used are “substances which
have given no cause for concern after decades of massive use […]”.
490 The most recent data available
on the dimensions of substitute fibres491, their biopersistence and the reactions of the human organism
to exposure to them do not enable any definitive comparison with chrysotile fibre to be made.  This isalso the opinion of the European Commission’s Scientific Committee on Toxicity, Ecotoxicity and
Environment:  “ … the conclusion that specific substitute materials pose a substantially lower risk to
human health, particularly public health, than the current use of chrysotile, is not well founded …”
492
In Canada’s view, the Panel should be circumspect concerning the opinions of the experts onsubstitute fibres.  Those who have adopted a position on this subject based themselves on a very small
number of scientific data.  According to INSERM’s report on substitute fibres:
“Taking into account the current uncertainties regardin g the effects on humans of exposure to substitute
fibres for asbestos, it is important to ensure that the levels of exposure among users of products
containing substitute fibres for asbestos are as low as possible.”493 (WTO translation)
3.383  For the same reasons, Canada believes that the international standards enable France to give
the population the protection it considers appropriate in the health sphere.
3.384  Canada also considers that the effective and appropriate international standards have not been
used “as a basis” for the adoption of the French Decree.  Canada refers the Panel to the arguments in
Section III.B above and the replies to the questions by the Panel (see Annex II to this report)
concerning the meaning of the obligation to use the international standards or their relevant parts “as a
                                                     
490 See Section III.B.6 above.
491 Glass fibre, cellulose fibre, para-aramid fibre, and PVA fibre.
492 Opinion on a study commissioned by Directorate General III (Industry) of the
European Commission on Recent Assessments of the Hazards and Risks posed by Asbestos and Substitute
Fibres, and Recent Regulation on Fibres World-Wide  (Environmental Resources Management, Oxford (opinion
expressed on 9 February 1998).
493 INSERM, Effets sur la santé des fibres de substitution à l’amiante , INSERM joint report, Paris,
1999, p.426.WT/DS135/R
Page 145
basis” for a technical regulation.  Neither the ILO nor the International Labour Office recommends
replacing all types of asbestos for all applications.  Convention 162 only advocates the use of
substitute fibres “Where necessary to protect the health of workers and technically practicable […] by
other materials or products, or the use of alternative technology […] scientifically assessed by the
competent authority as harmless or less harmful …”.  Article 5 of the ILO Code of Practice on Safetyin the Use of Asbestos is in the same vein.  Canada asserts that France did not proceed in the manner
called for in the standards.  It did not assess the risks for each product, each use and each application.
If it had done so, it would have realized that chrysotile fibre does not have to be replaced in asbestos-
cement products, which alone account for almost all applications of chrysotile.  Dr. de Klerk points
out that:  “Asbestos-cement products containing only chrysotile pose no measurable threat to
health.”
494
3.385  Canada notes that in the Environmental Health Criteria for Chrysotile Asbestos (203) ,
considered by the EC to be a standard within the meaning of the TBT Agreement, the WHO
recommends that chrysotile asbestos should only be replaced by safer substitute materials where this
is possible.  In France, however, the products replacing chrysotile are not safer.  As the INSERM
report on substitute fibres states:
“On the basis of the epidemiological data currently available, no conclusions can be drawn concerning
the carcinogenicity of the various types of substitute fibre.”495 (WTO translation)
3.386  Canada contends that, to date, no comparative scientific study has established beyond any
doubt that substitute products are harmless or less harmful than chrysotile asbestos.  Some recent
studies even show that certain fibrous substitutes (for example, PVA fibres and cellulose fibres) have
a higher degree of biopersistence than chrysotile.496  Canada also maintains that many scientific
studies, which it mentioned during the meeting w ith the experts on 17 January 2000, show that, at the
low levels of exposure currently prevalent in the chrysotile products industry, it is not possible to
measure an increased risk for human health.  International standards on asbestos do not call for a total
ban without drawing distinctions that take into account the type of fibre or the use.  The standards
propose an approach under which asbestos regulations must take account of the type of fibre, the
products in which the fibre is incorporated, and the uses of the product.  The international standards
thus propose a less trade-restrictive approach while at the same time laying emphasis on the effective
and appropriate protection of human health.  France has ignored these international standards and hasbanned asbestos.  Moreover, the technical regulation it has adopted is so far from the international
standards that their bases can no longer be perceived.  According to Canada, the EC has not provided
any valid explanation to justify rejecting the standa rds as the starting point for French regulations on
asbestos.  For the foregoing reasons, Canada asks the Panel to find that the Decree is inconsistent
with the provisions of Article 2.4 of the TBT Agreement.
3.387  The European Communities  contend that the texts cited by Canada to suggest that there
exist international standards that could have been used as a basis by France are not relevant under
Article 2.4 of the TBT Agreement because these texts do not correspond to the definition of a
“standard” in Annex 1 to the TBT Agreement.  In fact, the terms of the ILO and ISO texts mentionedby Canada do not lay down any guidelines or characteristics for products or related process and
production methods nor is that their object and purpose.  At best, they can be seen as assessments of
the risks caused by asbestos and asbestos-containing products rather than as establishing international
technical standards or conformity assessment procedures.  They also aim at providing a minimum
level of protection for workers, not the substantial reduction or elimination of the risks, which is thelevel of protection chosen by France.  Thus, the EC consider that the ILO and ISO texts are not
                                                     
494 Effects on Health of Asbestos-cement Products:  A Review of the Literature , p.1.
495 INSERM, Effets sur la santé des fibres de substitution à l’amiante , INSERM joint report, Paris,
1999, p.181.
496 Canada’s comments on the replies by the experts to question 6(b) from the Panel.WT/DS135/R
Page 146
relevant standards within the meaning of Article 2.4 of the TBT Agreement and therefore are not
applicable in this case.  Accordingly, in the light of the foregoing, the EC consider that the Decree is
compatible with Article 2.4 of the TBT Agreement.
(e) Article 2.8 of the TBT Agreement
3.388  Canada  maintains that the Decree is based on provisions relating to products in terms of their
design or their descriptive characteristics, whereas it would have been appropriate to base it on their
performance. Based on this fact, the Decree is incompatible with Article 2.8 of the TBT Agreement,
which provides that a Member shall regulate products “Wherever appropriate ... in terms of
performance…”.  Regulating chrysotile fibre “in terms of performance” requires an analysis of the
intended uses of this fibre.  Canada maintains that the appropriateness criterion in Article 2.8 has been
met to a large extent in this case inasmuch as the potential risks of chrysotile fibre make regulating it
“in terms of performance” necessary, even essential.  International standards address the uses of
chrysotile in terms of the risks that they present.   These international standards provide for technical
regulation of chrysotile based on its performance.  Until the adoption of the Decree, France regulated
asbestos in terms of the risks that each of its uses entailed. For a long time, the technical regulation of
chrysotile, in France, was therefore based on the performance of this product.  According to Canada,France has not offered any justification to show that, henceforth, it would no longer be “appropriate”
to follow this approach.  Examination of the “wherever appropriate” criterion for regulating a product
“in terms of performance” rather than “descriptive characteristics” must be done on a case-by-case
basis.  In this case, chrysotile fibres have no usefulness or commercial value as such.  They are only
used as inputs in a limited range of finished products.  Chrysotile fibres only present an actual risk incertain conditions of past use, whereas hard modern products that contain these fibres do not present
any detectable risk.  It therefore appears quite appropriate to regulate chrysotile in terms of its
performance rather than its descriptive characteristics.
3.389  Canada maintains that it is utterly inappropriate and contrary to the objectives of the TBT
Agreement to consider that a product must be banned because it is potentially hazardous per se
because many products would fall into this category, at least in part. In the particular case of products
containing fibres, the potential risks depend on the type of fibre used, on the way in which it is
incorporated in a product and the precautionary measures that are taken at the time of manufacturing,
handling and using the product.  If the purpose of Article 2.8 is to have technical regulations based on
“performance”, it is because the potential risk of a product is generally in fact closely linked to its use.
Bagged chrysotile exported by Canada is an inert product as long as it is not handled or used for
particular purposes. It is these uses that can be the source of some risk.  Modern products wherechrysotile fibre is imprisoned do not pose any detectable risk for health.  Article 2.8 requires,
wherever appropriate, that a Member comply with this fact when drawing up its technical regulations.
Canada maintains that, with respect to chrysotile fibre, only a regulatory approach based on an
analysis of the risks, use-by-use, product-by-produc t, is in keeping with Article 2.8 of the TBT
Agreement or, more generally, with the objectives of this Agreement.  Until the adoption of theDecree, France recommended this approach, and rightly so, as it regulated uses (e.g. spraying) or
specific products containing asbestos (e.g.:  toys), taking account of the hazards inherent in some of
these applications.  Based on the foregoing, Canada concludes that, inasmuch as the Decree was not
based on performance even though it was utterly appropriate to do so, France has violated Article 2.8
of the TBT Agreement.
3.390  The European Communities contend that it is important to note that Article 2.8 applies to a
sub-category of “technical regulations” i.e. “technical regulations based on product requirements”.  In
this instance, it is clear that the Decree is not “based on” requirements relating to asbestos or
asbestos-containing products.  Article 2.8 is therefore inapplicable in this instance.  According to the
EC, the purpose of the provision is to ensure that technical rules that aim to ensure a given quality or
minimum performance are, as far as possible, technically neutral and do not therefore prescribe aWT/DS135/R
Page 147
particular process or technology but simply set objectives to be achieved.  This is perfectly clear from
the English text of Article 2.8 of the TBT Agreement.
3.391  The EC contend that the ban on asbestos, even if it were considered to be a technical rule, is
not a technical rule that falls within the scope of this provision.  In any event, Article 2.8 of the TBTAgreement means that, wherever appropriate, the technical regulation shall be based on the
performance of the product in question (i.e. based on requirements connected with the performance of
the product, for example, “the product must be safe, watertight and non-flammable”), and not based
on the design or descriptive characteristics of the product (i.e. not specify in detail how these
requirements of safety, watertightness and non-flammability are to be attained).  However, asbestos
and asbestos-containing products present a major risk to human health, and in particular to the health
of persons who are exposed repeatedly, occasionally  or unwittingly.   With the exception of the
waivers granted when there is no substitute product less harmful to health or safer, there is no possible
“use” of the product. Only a prohibition is capable of halting the spread of the risk.  The EC consider
that, under such conditions, a technical regulation that aims to prohibit the “use” of a product cannot
set out the circumstances or conditions in which asbestos or asbestos-containing products are to be
used.  Consequently, the Decree is compatible with Article 2.8 of the TBT Agreement.
3.392  Canada maintains that the Decree is inconsistent with Article 2.8 of the TBT Agreement
because the Decree’s requirements relating to chrysotile asbestos and products containing it were
based on the design or descriptive characteristics of these products, whereas it would have been
appropriate to base them on performance.  Indeed, the Decree prohibits a product because it containschrysotile asbestos.  This ban is a product requirement.  The scope of the ban (whether it affects a
product or not) depends on its design or a descriptive characteristic (the product does or does not
contain chrysotile asbestos).  According to Canada, the EC interpret Article 2.8 incorrectly.  This
Article does not apply only to a sub-category of technical regulations that are “technical regulations
based on product requirements”.  Nor does it have the limited goal of ensuring that technicalregulations aimed at ensuring minimum product performance or quality are neutral.  Contrary to what
the EC maintain, Canada contends that there are possible uses of chrysotile asbestos that do not
involve a detectable risk to human health and can be subject to controlled-use measures.  The EC
wrongly claim that only a ban is capable of halting the spread of the asbestos risk.
3.393  Canada contends that the EC, in their reply to a question from Brazil,
497 acknowledged the
relevance of a regulatory approach based on product performance and, implicitly, their obligation,
pursuant to Article 2.8 of the TBT Agreement, to regulate chrysotile asbestos and asbestos-containingproducts based on their performance.  Canada notes that the EC write that the assessment of the risk
must be specific to each product and that the national risk management decisions that result differ
depending on each product in question.  With respect to chrysotile fibre, only a regulatory approach
based on an assessment of the risk on a use-by-use, product-by-product basis is compatible with
Article 2.8 of the TBT Agreement and, more generally, with the objectives of the TBT Agreement.Moreover, prior to the adoption of the Decree, France advocated this approach because it regulated
chrysotile asbestos based on uses (for example, spraying) or based on the hazards inherent in
applications of specific products containing it (for example, toys).  Canada claims that, inasmuch as it
did not base the Decree on the performance of chrysotile asbestos and products containing it when it
would have been possible to do so, France violated Article 2.8 of the TBT Agreement.
2. General Agreement on Tariffs and Trade (GATT)
(a) Applicability of Article III and/or Article XI of the GATT
3.394  Canada maintains that the Decree is incompatible with Articles XI:1 and III:4 of the GATT.
The Decree should be examined in the light of thes e two Articles because it comprises two distinct
                                                     
497 See Annex II to this report, section B.6, para.344.WT/DS135/R
Page 148
aspects:  on the one hand, it prohibits imports and, on the other, it contains discriminatory internal
regulations. The wording of the Decree clearly shows these two aspects. With regard to the first
aspect, the Decree prohibits the import of all variet ies of asbestos fibres and any product containing
them.  According to Canada, this aspect is subject to Article XI:1 of the GATT.  With regard to the
second aspect, the Decree affects domestic market use of all varieties of asbestos fibres and allproducts containing them.  Canada considers that this point is subject to Article III:4 of the GATT.
Just as two specific aspects of the same measure can be examined in the light of two different
agreements, similarly, two specific aspects of the same measure can be examined in the light of two
different articles of the same agreement; in this case, Article XI:1 and Article III:4 of the GATT.
498
Specifically, Canada maintains that the first aspect of the Decree, which aims to prohibit the import ofall varieties of asbestos fibres and any product containing them, is incompatible with Article XI:1.
The second aspect of the Decree, which aims to prohibit, in particular, the domestic marketing andtransfer on any basis of all varieties of asbestos fibres and any product containing them, is, according
to Canada, incompatible with Article III:4 of the GATT.
3.395  The European Communities  claim that the Decree has to be seen as an “internal regulation”
providing wholly identical treatment for “like” domestic and imported products within the meaning of
Article III:4 of the GATT, and must therefore be cons idered fully compatible w ith that Article.  The
EC note that Canada maintains that the measure contested is contrary to both Articles III:4 and XI:1
of the GATT.  However, either the measure is an “internal regulation”, in which case it falls under
Article III:4, or it concerns only the importation of products, in which case it must be judged in the
light of Article XI:1.  In the present case, the Decree only establishes a single measure that applies in
a non-discriminatory manner to asbestos and covers both domestic and imported products.
3.396  The EC contend that Canada wrongly maintains that the Decree comprises two separate
measures: one relating to the use of asbestos and asbestos-containing products on the domestic market
(falling under Article III:4) and the other relating to imports of asbestos and asbestos-containing
products (falling under Article XI:1).  Such a distinction fails to take account of the relationship
between Article III:4 and Article XI:1 and, according to well-established GATT practice, a singlemeasure that applies both to domestic and to imported products is necessarily covered as a whole by
Article III:4 of the GATT if it is imposed on an imported product at the time or place of importation.
3.397  The EC point out that the Decree prohibits the manufacture, processing, possession for sale,
offer, importation and exportation, domestic marketing, or transfer under any title of all varieties of
asbestos fibres or any product containing them. The Decree also provides for an exemption from the
ban on asbestos and asbestos-containing products when there are no substitute products capable of
performing a function equivalent to that of asbestos and of guaranteeing both the technical safety ofuse and a lower risk to workers’ health.  This is a measure prohibiting the use (in any form
whatsoever) of asbestos and asbestos-containing products, “which applies” both to domestic asbestos
and asbestos-containing products and to imported asbestos and asbestos-containing products at the
time of importation.  In other words, the import ban is merely the logical corollary of the general
prohibition on the use of asbestos and asbestos-containing products. The fact that the Decree appliesat the border (by banning imports) so as to enforce the French measure prohibiting the use of asbestos
does not render Article III:4 inapplicable.
3.398  The EC note that, in a different case, a Panel held that:  “The fact that Section 337 is used as a
means for the enforcement of United States patent law at the border does not provide an escape from
the applicability of Article III:4”.
499  Similarly, the Panel Report on Canada - Import, Distribution and
Sale of Certain Alcoholic Drinks by Provincial Marketing Agencies  raised the question of whether the
                                                     
498 European Communities – Regime for the Importation, Sale, and Distribution of Bananas , Report of
the Appellate Body, adopted on 25 September 1997, WT/DS27/AB/R, para.221.
499 United States – Section 337 of the Tariff Act of 1930 , adopted on 7 November 1989, BISD 36S/345,
para.5.10.WT/DS135/R
Page 149
measure contested (in that instance, minimum pri ces) fell under Article X:1 or Article III:4. It noted
that, according to the Interpretative Note Ad Arti cle III, a regulation is subject to the provisions of
Article III if it “applies to an imported product and to the like domestic product” even if it is
“enforced, in the case of the imported product, at the time or point of importation”.500  Ev en if t he
word “import” were deleted from the Decree, this would not alter the position as regards importedasbestos and asbestos-containing products in any wa y. Their use, in whatever form, would still be
prohibited on French territory. The import ban is simply designed to make the prohibition of their use
more effective in terms of inspection.  For the same reason, in the case of domestic products, the
Decree prohibits not only their sale, but also their manufacture. The aim, then, is to halt the spread of
asbestos as far upstream as possible.
3.399  The EC contend that Article III:4 must be a ssessed in the light of the Interpretative Note
relating to it.  The Panel Report on United States -  Restrictions on Imports of Tuna  is especially
instructive for the purposes of the present case.  In this case, the United States Marine Mammals
Protection Act involved two measures. The first was a regulation governing the fishing practices of
national tuna fishermen. Secondly, it also imposed an import ban on tuna or tuna-based products
where the commercial fishing techniques used had the incidental effect of killing or severely injuringa greater number of marine mammals than the norms set by the United States.  The Panel Report
stated in general terms that:
“This suggests that Article III covers only measures affecting products as such.  Furthermore, the text
of the Note Ad Article III refers to a measure ‘which applies to an imported product  and the like
domestic product  and is collected or enforced, in the case of the imported product , at the time or point
of importation’.  This suggests that this Note covers only measures applied to imported products thatare of the same nature as those applied to the domestic products, such as a prohibition on importationof a product which enforces at the border an internal sales prohibition applied to both imported and like
domestic products.”
 501 [italics in the original]
3.400  The EC indicate that, in this case, the Panel was unable to make use of the Note Ad Article III
because the internal measure governing the fishing pr actices of United States tuna fishermen did not
cover a particular product, unlike the import measure.  The situation regarding the Decree is radically
different and consequently warrants examination solely in the light of Article III:4 of the GATT.  The
thesis that Articles III and XI cannot both apply to  any one measure is apparently confirmed by the
rulings of Panels which, when examining a measure, always pose the question whether it falls underArticle III or Article XI.
502  The EC note that Canada appears to share this view too, as it argued in the
Hormones  case that: “... in the alternative, the EC import prohibition infringed GATT Article XI, but
noted that this claim should only be considered by the Panel if it decided that Article III of GATT did
not apply in this case”.503  Besides, it would be totally illogical if one and the same measure were
permitted under Article III and prohibited under Article XI, in other words if a measure prohibitingthe use of a product on national territory could not be enforced at the border.
3.401  Canada  maintains that the Decree is inconsistent both with Articles XI:1 and III:4 of the
GATT because it involves two separate aspects.  As Canada has asserted, the terms of the text make it
clear that, on the one hand, the Decree prohibits imports of asbestos or of asbestos-containing
products and, on the other hand, regulates the domestic market.  Canada notes that the EC do not
                                                     
500  Canada – Importation, Distribution and Sale of Certain Alcoholic Drinks by Provincial Marketing
Agencies , BISD 39S/27, para.5.28.
501 United States – Restrictions on Imports of Tuna , circulated on 3 September 1991, not adopted,
BISD 39S/155, paras.5.8-5.16.
502 See, for example Canada – Importation, Distribution and Sale of Certain Alcoholic Drinks by
Provincial Marketing Agencies , adopted on 18 February 1992, BISD 39S/27, para.5.6. See also United States –
Restrictions on Imports of Tuna , pp.193 et seq. .
503 EC Measures Concerning Meat and Meat Products (Hormones) , report of the Panel, adopted on
13 February 1998, WT/DS48/R/CAN, para.4.354.WT/DS135/R
Page 150
recognize the dual aspect of the French measure, but claim that the import ban is intended simply to
render more effective, in terms of control, the ban on use.  According to Canada, the EC’s reasoning
is tendentious in that it is incomplete.  Canada notes that, in an effort to demonstrate that the measure
is solely an internal measure, the EC claim that removing the “importation” aspect from the text of the
measure would not in any way affect the scope of the internal provisions. Canada fully agrees withthis reasoning because it is precisely what Canada asserts.  However, this is only half of the Canadian
reasoning.
3.402  Canada asserts that the corollary of this reasoning highlights the dual aspect of the Decree.
Using the same logic as that applied by the EC, Canada can in return claim that if the “internal
measure” aspect is removed from the reading of the text of the Decree, this does not change in any
way the scope and effectiveness of the ban on the import of asbestos into France.  That is why the
measure must be examined under both Article III:4 and Article XI:1 of the GATT.  Canada notes theargument of the EC and of the United States relating to the Interpretative Note Ad
Article III (measures imposed “at the time or point of importation”).  However, the Interpretative Note
is not applicable because the import ban is not an internal measure imposed, for administrative
reasons, at the border.  Also, the Interpretative Note Ad Article III only applies, as indeed the EC
maintain, if the measure applies “to an imported product and to the like domestic product”.
504  Yet, it
is clear to Canada that the aspect of the measure in question, namely the explicit import ban, is not
applicable to the domestic product because the domestic product is obviously not “imported”.  The
import ban is therefore aimed specifically at something that is not covered by the internal measure.
Canada contends that the Decree has a dual aspe ct involving Articles III:4 and XI:1 of the GATT.
3.403  The European Communities  assert that the Decree must be examined as an internal measure
falling exclusively under Article III:4 of the GATT.  When a domestic measure applies to both
domestic and imported products, Article III must appl y.  Therefore, the contested measure may be
examined as a single measure with identical imp lications for both domestic products and imports.
Article III then rules out the application of Article XI, inasmuch as these two Articles cannot be
applied cumulatively to one and the same measure.  This interpretation follows both from a textualanalysis of the Interpretative Note Ad Article III and from previous practice under the GATT.  It also
follows from an analysis, by analogy, of other legal systems.
3.404  The EC recall that, as already indicated, the Interpretative Note Ad Article III has been
interpreted by the Panel in United States - Restrictions on Imports of Tuna  as follows:
“This suggests that this Note [Ad Article III] covers  only measures applied to imported products that
are of the same nature as those applied to the domestic products, such as a prohibition on importationof a product which enforces at the border an internal sales prohibition applied to both imported and like
domestic products.”505
In so doing, the Panel recognized that, even if a measure is applied to imported products, the fact that
that same measure is also applied to domestic products makes Article III applicable.  This in itself
rules out any possibility of cumulative application together with Article XI of the GATT.
3.405  The EC indicate that the Panel in United States - Measures Affecting Alcoholic and Malt
Beverages   noted that:
“…the issue is not whether the practices in the various states affect the right of importation as such, in
that they clearly apply to both domestic (out-of-state) and imported wines;  rather, the issue is whether
                                                     
504 Canada – Importation, Distribution and Sale of Certain Alcoholic Drinks by Provincial Marketing
Agencies , adopted on 18 February 1992, BISD 39S/27, para.5.28.
505 United States – Restrictions on Imports of Tuna , circulated on 3 September 1991, not adopted,
BISD 39S/155, para.5.11.WT/DS135/R
Page 151
the listing and delisting practices accord less favo urable treatment - in terms of competitive
opportunities – to imported wine than that accorded to the like domestic product.  Consequently, thePanel decided to analyze the state listing and delisting practices as internal measures under
Article III:4.”506
This latter Panel shows that a domestic measure can affect the right to import as such without, for all
that, falling under Article XI.
3.406  The EC claim that some legal systems, for example, that of the EC, take the same approach.
Thus, with regard to the fiscal measures applicable between Member States, the Court of Justice of
the EC makes a distinction between, on the one ha nd, measures that apply to a product only when
imported, which fall under Article 12 of the EC Treaty (Elimination of customs duties or charges
having equivalent effect), and, on the other, measures that apply to both imported and domestic
products, which fall under Article 95 of the EC Treaty507 (Internal taxation).  The text of Article 95 of
the EC Treaty could, as a Panel has already indicated508, be compared to the text of Article III of the
GATT.  It follows from the above that a measure which applies to both domestic products and
imported products must be examined in relation to Article III, insofar as such measure is identical in
nature for both domestic products and imports.  Fr om a systematic interpretation it also follows that
such a measure cannot be examined simultaneously from the standpoint of both Article III andArticle XI of the GATT.
509  According to the EC, the students of legal theory have come to the same
conclusion:
“This line [between Articles XI and III] may sometimes be hard to draw.  The notes to Article III
provide that measures applied to domestic products, which are applied to imported products at the timeof importation, are to be analyzed under Article III.  Thus, if an import were barred because it failed tomeet a national product standard, the permissibility of the action would be examined under Article III,
not as an import ban under Article XI.”
510
3.407  The EC assert that, in the case of the French measure on asbestos, the domestic measure and
the border measure cover the same products (asbestos and asbestos-containing products) and are of
the same nature.  The Decree prohibits the importation of asbestos and asbestos-containing products
from third countries and, at the domestic level, prohibits the production, processing, possession forsale, offer, exportation and transfer of these products.  The practical application of the Decree leads to
the same measure - that is, the general ban on asbestos and asbestos-containing products - being
applied to all products, irrespective of their origin.  As one and the same measure is applied to
domestic products and imported products - in the case of the latter at the border - the Communities
conclude that only Article III:4 of the GATT is applicable in this case, which rules out the applicationof Article XI.  With regard to the Canadian argument that France does not manufacture asbestos or
manufactures it only in extremely limited quantities, the EC wish to point out that asbestos was
                                                     
506 United States – Measures Aff ecting Alcoholic and Malt Bevera ges, adopted on 19 June 1992,
BISD 39S/206, in particular para.5.63.
507 See, for example, the judgement of the Court of Justice of the European Communities, 11 June
1992, cases C-149/91 and C-150/91, Sanders Adour/ Directeur des Services Fiscaux des Pyrénées-Atlantiques ,
Rep. 1992, p.I-3899, and in particular paras.15 and 19.
508 Korea – Taxes on Alcoholic Beverages , adopted on 17 February 1999, WT/DS75/DS84/R, report of
the Panel, in particular point 10.81.
509 In this connection, the EC note that the non-cumulative application of Articles 12 and 95 of the EC
Treaty (see above) has been forcefully recalled by the European Court of Justice, which has stated that:
“It is settled law … that the provisions relating to charges having equivalent effect and those relating to
discriminatory internal taxation cannot be applied together, so that under the system of the Treaty thesame imposition cannot belong to both categories at the same time”.
510 Jackson, J.H., Davey, W.J., Sykes, A.O., Legal Problems of International Economic Relations , West
Publishing Co., 1995, p.502.WT/DS135/R
Page 152
produced in France in the past.  The potential for production remains, insofar as asbestos in its natural
form is present on French territory.
3.408  Canada  asserts that the Decree should be considered as falling under both Article XI and
Article III of the GATT.  The Decree’s provisions banning imports of asbestos are incompatible withArticle XI:1 and the Decree’s provisions banning the sale of asbestos and other transactions on the
French market are incompatible with Article III:4.  In this connection, Canada points out that the
report in United States – Restrictions on Imports of Tuna , cited by the EC several times to underpin its
thesis of systematic interpretation, was not adopted by the Contracting Parties.  Canada indicates that,
if the Panel considers that the Decree cannot be  examined under the two Articles, it should be
considered as a measure affecting imports and incompatible with Article XI:1.  If the Panel considers
that the Decree cannot be examined under the two Articles and cannot be considered as a measureaffecting imports, it should be considered as a measure affecting sales and other transactions on the
French market and thus incompatible with Article III:4.
3.409  The European Communities  contend that the Decree constitutes a single measure that
applies to both domestic and imported products alike.  As one and the same measure is applied to bothdomestic products and imported products – in the case of imports at the border - the EC conclude that
only the arguments of Canada relating to Article III:4 of the GATT are relevant in this case.
According to the EC, this interpretation rules out the cumulative application of Articles III and XI of
the GATT, as the Note Ad Article III provides and previous GATT Panel reports have clearly
established (see, for example, the first Panel report in the Tuna/Dolphin case).  Indeed, the Decree
prohibits the importation of all types of asbestos and products containing asbestos from all third
countries and, at the domestic level, prohibits the production, processing, possession for sale, offer,
exportation and transfer of these products.  The practical application of the Decree thus leads to the
same result, namely, a general ban on asbestos and products containing asbestos applicable to all
products irrespective of their origin.  The EC claim that, in order to establish a violation ofArticle III:4 of the GATT, the complaining part y has the burden of showing that there is de jure  or
de facto  discrimination in the treatment of imported compared to like domestic products.
(b) Article III:4 of the GATT
(i) Application of Article III:4 of the GATT
3.410  Canada  maintains that, in adopting the Decree banning asbestos, France violates the national
treatment disciplines in Article III:4 of the GATT 1994.  The effect of the French measure is to favourthe French fibre industry and that of substitute products such as chrysotile fibre and chrysotile-cement
products, which is prohibited under Article III:4 of the GATT 1994.  According to case law under the
GATT 1947 and the GATT 1994, examination of the applicability of Article III:4 to a measure taken
by a Member and, if need be, of its compatibility w ith the disciplines of Article III:4, has two separate
facets.  The first is to determine whether the measure constitutes a law, a regulation or a requirementaffecting the sale, offering for sale, purchase, transportation, distribution or use of an imported product
on the domestic market.  Canada asserts that the Decree banning asbestos is a regulation affecting
these activities.  The second facet is to determine whether the products from the territory of a Member
imported into the territory of another Member are subject to treatment less favourable than that
accorded to like products of national origin in respect of all laws, regulations or requirementsaffecting, inter alia , their supply, offering for sale, or sale.  With respect to the second facet, Canada
draws attention to the following three points:  (i) products like Canadian chrysotile fibre and
chrysotile-cement exist;  (ii) these like products are of French origin;  and (iii) they benefit from
treatment more favourable than that accorded to imported Canadian chrysotile fibre and chrysotile-
cement products.  Canada notes that, in this case, France recognized in specific terms in the Decreebanning asbestos that chrysotile fibre and the products containing it are like the substitute fibres and
materials, products or devices containing the latter.WT/DS135/R
Page 153
3.411  Canada maintains that the likeness of these products is confirmed by application of the criteria
established in the case law, i.e. end-use of the product, consumers’ tastes and habits, the physical
properties, the nature and quality of the product, as well as tariff classification.  According to these
criteria, the substitute fibres are like chrysotile fibre and fibro-cement products are like chrysotile-
cement products.  Furthermore, a substitute fibre manufacturing industry and a sizeable industry for
the manufacture of fibro-cement products exist in France.  The prohibition of a number of operations −
including domestic marketing, sale and transfer on any basis − relating to chrysotile fibre and products
containing it unequivocally constitutes treatment less favourable than that accorded to like French
substitute fibres and products that are not subject to any prohibition regulations of the same type.
3.412 Canada contends that the Decree constitutes a regulation affecting the sale, placing on the
market or purchase of chrysotile fibre and chrysotile-cement products in France.  According to
Canada, Article III:4 applies to “all laws, regulations and requirements”.  Article III:4 applies to the
Decree, which is a regulation of the French Govern ment.  Pursuant to the terms of Article III:4, a
measure must affect “the internal sale, offering for sale, purchase, transportation, distribution or use…” on the domestic market.  The Decree specifically aims to prohibit the manufacture, processing,
sale, domestic marketing, possession for sale, offer or transfer on any basis of all varieties of asbestos
fibres and products containing them.  In Canada’s view, the Decree undoubtedly constitutes a
regulation directly affecting the sale, release for sale or purchase of chrysotile fibre and products
containing it. The Decree applies to France’s domestic market pursuant to the terms of Article III:4.In prohibiting the sale, release for sale or purchase, the Decree changes the conditions of competition,
in the domestic market, between substitute fibres and products containing them of French origin and
chrysotile fibre and products containing it originating in Canada.  Canada concludes that the
conditions regarding the applicability of Article III:4 of the GATT have been met.
3.413  The European Communities  assert that the Decree has to be examined as an “internal
regulation” that provides perfectly identical treatment for “like” domestic and imported products
within the meaning of Article III:4 of the GATT and it must therefore be considered fully compatible
with that Article.
(ii) The concept of “like products”
3.414  Canada claims that, in the case of the Decree, the question of determining whether the
treatment accorded is less favourable for the imported product than for the like product of national
origin presupposes the examination of the following three points:  (i) the existence of products like
Canadian chrysotile fibre and chrysotile products;  (ii) the French origin of those like products;  and
(iii) less favourable treatment accorded to chrysoti le-cement products and to imported chrysotile fibre
than that accorded to like French products.  According to the report by the Working Party on Border
Tax Adjustments , likeness of products shall be assessed on a “case-by-case” basis considering, in
particular, end-use of the product, consumers’ tastes and habits and the properties, nature and qualityof the product.
511  The Appellate Body describes the Working Party report on Border Tax Adjustments
as setting out “the basic approach for interpreting ‘like or similar products’, generally, in the various
provisions of the GATT 1947”.512  Tariff classification was added as a supplementary element to the
                                                     
511 Working Party Report Border Tax Adjustments , BISD 18S/97, para. 18: “... the interpretation of the
term should be examined on a case-by-case basis. This would allow a fair assessment in each case of the
different elements that constitute a ‘similar’ product. Some criteria were suggested for determining, on a case-
by-case basis, whether a product is ‘similar’: the product’s end-uses in a given market, consumers’ tastes and
habits, which change from country to country, the product’s properties, nature and quality.”  This Report wasadopted by the contracting parties in 1970 and has been taken up many times since, notably by the AppellateBody in Japan – Taxes on Alcoholic Beverages , adopted on 1 November 1996, WT/DS8/AB/R;
WT/DS10/AB/R; WT/DS11/AB/R, pp.18 et seq .
512 Japan − Taxes on Alcoholic Beverages , Report of the Appellate Body, adopted on 1 November
1996, WT/DS8/AB/R; WT/DS10/AB/R; WT/DS11/AB/R), p.22.WT/DS135/R
Page 154
above-mentioned criteria.513  Analysis of the likeness of products is therefore based on criteria such as
(i) end-use of the product;  (ii) consumers’ tastes and habits;  (iii) the properties, nature and quality of
the product;  and (iv) the tariff classification.514  Precedents under the GATT 1947 and the GATT
1994 do not require that all the criteria apply for the purpose of analysing the likeness of products.515
For example, in the report Japan – Customs Duties, Taxes and Labelling Practices on Imported Wines
and Alcoholic Beverages, it was determined that various types of alcohol were like products because
they constituted a well-defined and single product at the end-use stage.516
3.415  Canada maintains that the term “like” does not mean identical. It is rather a matter of showing
that fibres and products that are substitutes for chrysotile fibre and chrysotile- cement products are
similar in many ways and, according to the Decree they are not covered by the national treatment rule
under Article III:4.517  More than 150 substitute fibres for chrysotile fibre exist.  In the products in
which they are incorporated, they attempt to repl icate the properties of chrysotile fibre. The most
common are the aramid fibres, PVA fibres, cellulose fibres, glass fibres, ceramic fibres, rock wool,
and wollastonite.  Virtually all the chrysotile fibre of Canadian origin imported into France before the
Decree took effect was intended for the manufacture of chrysotile-cement products.  Canada uses the
example of chrysotile fibre and chrysotile-cement in order to show the similarity of chrysotile fibre
and substitute fibres and of products containing chrysotile and those containing substitute fibres.Chrysotile fibre and PVA, cellulose and glass fibres are used interchangeably, the first in the
manufacture of chrysotile-cement, the three others in manufacturing fibro-cement.
518  Chrysotile-
cement and fibro-cement are used in the manufacture of products such as pipes, pipe fittings (casings,
bends, sealing joints), corrugated sheets, insulation and soundproofing board, exterior siding and
roofing shingles, floor tiles, slabs, gutters, chimney cowls and sinks.
3.416 Canada asserts that the guiding principle underlying the examination of the question of
similarity is to proceed on a case-by-case basis, i.e. taking into account the particular circumstances of
each situation. However, in this instance, France undertook to ban chrysotile asbestos for all possible
                                                     
513 EEC – Measures on Animal Feed Proteins , adopted on 14 March  1978, BISD 25S/49, para. 4.2;
Japan – Customs Duties, Taxes and Labelling Prac tices on Imported Wines and Alcoholic Beverages , adopted
on 10 November 1987, BISD 34S/83, para. 5.6;  United States – Gasoline , Appellate Body Report and Panel
Report, adopted on 20 May 1996, WT/DS2/9, paras.6.8 and 6.9.
514 United States – Gasoline , Appellate Body Report and Panel Report, adopted on 20 May 1996,
WT/DS2/9, paras.6.8 and 6.9.
515 Canada notes that, on the contrary, in the Report Japan – Customs Duties, Taxes and Labelling
Practices on Imported Wines and Alcoholic Beverages , it is recalled that products may be deemed like products
according to the criterion of end-use only: “Past GATT practice has clearly established that ‘like’ products interms of Article III:2 are not confined to identical products but cover also other products, for instance if they servesubstantially identical end-uses ...”  Report adopted on 10 November 1987, BISD 34S/83. See also United States –
Taxes on Petroleum and Certain Imported Substances , adopted on 17 June 1987, BISD 34S/136, para.5.1.1.
516 Japan – Customs Duties, Taxes and Labelling Practices on Imported Wines and Alcoholic
Beverages , adopted on 10 November 1987, BISD 34S/83, para.5.6: “The Panel agreed in this respect with the
arguments submitted to it not only by the European Communities but also by other important producing countriesof wines and distilled spirits that gin, vodka, whisky, grape brandy, other fruit brandy, certain ‘classic’ liqueurs,still wine and sparkling wine, respectively, were recognized not only by governments for purposes of tariff and
statistical nomenclature, but also by consumers to constitute ‘each in its end-use... a well defined and single
product intended for drinking’.” See also Spain – Tariff Treatment of Unroasted Coffee , adopted on
11 June 1981, BISD 28S/ 102, p.112, para.4.7.
517 Canada notes that this interpretation is consistent with the precedent of the GATT 1947, in
particular the aforementioned Panel Report on Japan – Customs Duties, Taxes and Labelling Practices on
Imported Wines and Alcoholic Beverages .  It was clearly established therein that “like” products under
Article III:2 are not limited to identical products […].  (par a.  5.5(d)).  The Panel judged in this case, that gin,
vodka, whisky, brandy, wine and sparkling wine constituted like products for the purposes of Article III.
518 For the purposes of Canada’s argument with regard to Article III:4 of the GATT and Article 2.1 of
the TBT Agreement, the term “fibro-cement” means a mix of cement to which PVA, cellulose fibre or fibreglassis added.  The term fibro-cement includes “glass cement”.WT/DS135/R
Page 155
uses and to replace it with like substitute fibres capable of performing an equivalent function. The
Decree indicates that products like chrysotile fibre, chrysotile-cement products, as well as all other
products using chrysotile fibre, exist.  This observation ensues from the terms of the Decree, which
require substitute products to perform an “equivalent function” and offer the same “technical
guarantees” as chrysotile-based products.  Under Article 2 of the Decree, the ban does not apply tocertain products that contain chrysotile fibre when, to ensure an equivalent function, “no substitute for
that fibre is available which, on the one hand, in the present state of scientific knowledge, poses a
lesser occupational health risk than chrysotile fibre to workers handling those materials, products or
devices;  [and] on the other, provides all technical guarantees of safety corresponding to the ultimate
purpose of the use thereof.”  In France, chrysotile fibre has been replaced in all products in which it
was used, with the exception of four uses.  According to Canada, the replacement of chrysotile fibre
in all cases in which there exists a substitute fibre capable of performing an equivalent functionpresupposes that the chrysotile fibre and the substitute fibre are nearly perfectly alike.
519  For example,
the replacement of chrysotile fibre in fibro-cemen t products implies an admission that the substitute
fibres have like characteristics.  Finally, to satisfy the requirement under the Decree that a substitute
fibre must provide all technical guarantees of safety appropriate to the end-use, it is essential that the
end-uses of the products manufactured using chrysotile fibre be the same. According to theprecedents, products are like products if their end-uses are the same.
3.417 Canada claims that the application of the criteria from case law confirms that PVA, cellulose
and glass fibres and chrysotile fibre, on the one hand, and fibro-cement products and chrysotile-
cement products, on the other, are like products.
3.418  As far as end-use is concerned, given the nature of chrysotile fibre - a raw mineral resource -
Canada maintains that, in accordance with the case-by-case approach, special importance must be
attached to the end-use criterion for the product wh en examining whether chrysotile fibre is like the
substitute fibres.  Chrysotile fibre has no use in its raw form; it serves as an input in the production of
chrysotile materials. The most widespread end-use of chrysotile fibre is chrysotile-cement.  Around
90 per cent of Canadian chrysotile fibre previously imported into France was used for this purpose.Like chrysotile fibre, PVA fibre, cellulose fibre and glass fibre are used in the manufacture of fibro-
cement. After they have been incorporated in the cement, chrysotile fibre, on the one hand, and PVA,
cellulose and glass fibres, on the other, are used for the manufacture of chrysotile-cement products
and fibro-cement products respectively.  These products constitute, “at the end-use stage”, “a well-
defined and single product” intended for the same purposes: whether a chrysotile-cement or a fibro-
cement product.
520  The Decree points to the existence of substitute fibres for chrysotile fibre that
perform an “equivalent” end function and provide “all technical guarantees of safety to the ultimatepurpose of the use thereof”.
521  Canada maintains that the conclusion that chrysotile fibre and PVA,
cellulose and glass fibres are “like products” under Article III:4 of the GATT is derived from applying
the sole criterion of end-use of the product.
3.419  Canada claims that the fact that chrysotile-cement products and fibro-cement products have
the same end-uses is proof that they are “like products”.  Chrysotile-cement and fibro-cement boardsare used for insulation and soundproofing.  Sheeting, shingles and tiles are used for cladding exteriors,
                                                     
519 Canada notes that only four products made of chrysotile fibre have no equivalent and are therefore
exempt from the ban until 2000 or 2002.
520 See Japan – Customs Duties, Taxes and Labelling Practices on Imported Wines and Alcoholic
Beverages , adopted on 10 November 1987, BISD 34S/83, para.5.6:  “The Panel agreed in this respect with the
arguments submitted to it not only by the European Communities but also by other important producing countriesof wines and distilled spirits that gin, vodka, whisky, grape brandy, other fruit brandy, certain ‘classic’ liqueurs,
still wine and sparkling wine, respectively, were recognized not only by governments for purposes of tariff and
statistical nomenclature, but also by consumers to constitute ‘each in its end-use... a well defined and singleproduct intended for drinking’.”
521 Article 2 of the Decree and the Decrees of 16 December 1996, 17 March 1998 and 24 December
1996 on exemptions from the ban.WT/DS135/R
Page 156
roofs and floors.  Pipes and pipe fixtures are used  for pipeline systems or, for industrial purposes, in
the transportation of liquids. Chrysotile-cement and fibro-cement products are like products because
they are manufactured using either chrysotile-cement or fibro-cement without distinction, because
they are finished products the end-use of which is identical and because the Decree recognizes that the
technical guarantees with regard to “end-use” are identical.  In Canada’s view, the Decree concludesthat there are substitute products for chrysotile-cement products that perform an “equivalent” function
and provide “all technical guarantees of safety appropriate to the use” of chrysotile-cement products.
3.420  With regard to the properties, quality and nature of the product, Canada contends that the
nature of chrysotile fibre  (natural mineral fibre), PVA fibre (synthetic organic fibre), cellulose fibre
(natural organic fibre) and glass fibre (man-made mineral fibre) is the same inasmuch as fibres are
involved, be they organic or mineral, man-made or natural.  Substitute fibres for chrysotile fibre are
used to replicate the qualities of chrysotile fibre in view of the end-use. Chrysotile-cement or fibro-cement manufacturers use them for identical purposes, which points to the likeness of the properties,
nature and quality of chrysotile, PVA, cellulose and glass fibres.  In addition, PVA, cellulose and
glass fibres, just like chrysotile fibres, give composites both strength and resistance.  Their chemical
resistance and their quality as a binder and reinforcing agent are useful in the manufacture of
chrysotile-cement and fibro-cement.
522  In Canada’s view, the likeness of the manufacturing processes
for chrysotile-cement and fibro-cement shows the li keness between the properties and the nature of
the fibres in question.
3.421  Canada states that chrysotile-cement products, like fibro-cement products, are known for their
greater durability than cement products not containing  fibre.  They are also known for their chemical
resistance, their insulating properties, both for heat and soundproofing, and their lightness. Chrysotile-cement and fibro-cement, whether they contain a percentage of chrysotile fibre or other like fibres, are
manufactured using the same technical process. Indeed, the Hatschek process and the Mazza process
− its derivative for pipe production – are used in the manufacture of chrysotile-cement and fibro-
cements.
523  The likeness of the manufacturing processes indicates a convergence as regards the
properties, quality and nature of the products.  According to Canada, the Decree recognizes that,except in four cases, like asbestos-based products exist which offer “the same technical
guarantees”.
524  Fibro-cement products have replaced chrysotile-cement products.  By offering the
same technical guarantees as chrysotile-cement products, fibro-cement products undoubtedly have the
same properties, are of the same quality and the same nature.  Given that chrysotile-cement products
and fibro-cement products have the same intrinsic qualities, that they are manufactured using the sametechnical process and that the Decree recognizes that they offer the same technical guarantees, for
Canada, the obvious conclusion is that chrysotile-cement products and fibro-cement products are “like
products”.
3.422  Canada asserts that, according to the consumers’ tastes and habits criterion, chrysotile fibre
and PVA, cellulose and glass fibres, which are inputs in chrysotile-cement products and fibro-cementproducts, are “like products”.  Chrysotile fibre, PVA fibre, cellulose fibre and glass fibre are not
products of mass consumption.  These products are used by a limited number of economic agents, in
particular the manufacturers of chrysotile-cement and fibro-cement products, who incorporate these
fibres into their products. In so doing, these manufacturers are the consumers of chrysotile fibre for
the purposes of the consumers’ tastes and habits criterion.  According to Canada, the drop inchrysotile asbestos imports intended for chrysotile-cement products in 1996 and 1997 is a result of the
Decree and not of a sudden change in consumers’ tastes and habits. To change the preferences of
French consumers, the Decree on the banning of asbestos was necessary.  The impact of the Decree
does not reflect consumers’ tastes and habits. Businesses manufacturing chrysotile-cement products
have converted to substitute fibres or have closed down. The Decree forced these conversions or
                                                     
522 Cossette, M., Substitutes for Asbestos , December 1998, pp.1-3.
523 Id., p.23.
524 Article 2 of the Decree.WT/DS135/R
Page 157
closures.  Canada maintains that, in determining the likeness of products, it is inappropriate to
consider the criterion of the habits of manufacturers who were forced to convert to fibro-cements.525
3.423  Canada contends that chrysotile-cement products  and fibro-cement products are both
industrial products and it is almost impossible to distinguish between them based on their external
appearance.  Thus, in the eyes of the consumer, chrysotile-cement products and fibro-cement productsare like products in all aspects, unless a data sheet is available showing which fibre makes up their
composition.  From the point of view of the tastes and habits of French consumers, chrysotile-cement
products and fibro-cement products are interchangeable.  The ban on the import of chrysotile-cement
products did not cause a fall in the imports of fibro-cement products.  Since the Decree took effect,
the import of chrysotile-cement products has simply been replaced by the import of fibro-cement
products.  If products like asbestos-cement products had not been available, imports into France of
fibro-cement products, which include asbestos- cement products, would have dropped immediately
after the import of chrysotile-cement products was prohibited.  According to Canada, the fact that it is
impossible to distinguish between chrysotile-cement products and fibro-cement products based on
their external appearance and their interchangeability are elements which indicate that consumers
perceive these products as “like products”.
3.424  Concerning tariff classification, according to  the World Customs Organization, chrysotile-
cement products and fibro-cement products are so sim ilar that the 107 six- or eight-digit codes given
to chrysotile-cement products in the Harmonized System are identical to the 107 codes given to fibro-
cement products.  Chrysotile-cement and fibro-cement products are in Heading 68.11 of the
Harmonized System, i.e. the category relating to “Articles of asbestos-cement, of cellulose fibro-
cement or the like”.  The World Customs Organization defines Heading 68.11 as follows:
Chapter 68 – Articles of stone, plaster, cement, asbestos, mica or similar materials
Heading 68.11 – Articles of asbestos-cement, cellulose fibro-cement or the like526
6811.10 - Corrugated sheets6811.20 - Other sheets, panels, tiles and similar articles6811.30 - Tubes, pipe and tube or pipe fittings6811.90 - Other articles
3.425  Canada indicates that this category includes fibro-cements made of cellulose, synthetic
polymer (i.e. PVA) or glass fibres.  As proof that chrysotile-cement and fibro-cement are likeproducts, tiles, for example, made of chrysotile -cement, cellulose-cement or the like are given the
same code, i.e. 6811.2011.  Chrysotile fibre and PVA, cellulose and glass fibres, on the one hand, and
chrysotile-cement products and fibro-cement products, on the other, are “like products” for the
                                                     
525 Japan – Customs Duties, Taxes and Labelling Practices on Imported Wines and Alcoholic
Beverages , adopted on 10 November 1987, BISD 34S/83, para.5.7.  Canada notes that, in this report, the Panel
underlined that the effect of a tax measure, in this case , should not serve to “determine” consumers’ tastes and
habits and thus differentiate otherwise like products.
526 World Customs Organization , Category 68.11, which states that :  “This heading covers hardened
articles consisting essentially of an intimate mixture of fibres (for example, asbestos, cellulose and other
vegetable fibres, synthetic polymer, glass or metallic fibres) and cement or other hydraulic binders, the fibres
acting as strengthening agents. These articles may also contain asphalt, tar, etc.  These products are generallymanufactured by pressing together thin layers of a mixture of fibres, cement and water or by moulding (possiblyunder pressure), by pressing or by extruding. The heading includes all sizes and thicknesses, obtained asdescribed above, and also articles made by cutting these sheets or by pressing, moulding or bending them beforethey have set, e.g. roofing, facing or partition sheets and tiles; sheets for making furniture; window sills;  sign-
plates; letters and numbers; barrier bars, corrugated sheets;  reservoirs, troughs, basins, sinks;  tubing joints;
packing washers and joints;  panels imitating carving;  ridge tiles, gutters, window frames;  flower-pots;ventilation or other tubing, cable conduits; chimney cowls, etc.  All these articles may be coloured in the mass,varnished, printed, enamelled, decorated, drilled, filed,  planed, smoothed, polished or otherwise worked;  theymay also be reinforced with metal, etc.”WT/DS135/R
Page 158
purpose of Article III:4 of the GATT.  This conclusi on derives from the application of criteria such as
the end-use of the products, consumers’ tastes and habits, the properties, quality and nature of the
products and their tariff classification.  Each of the four criteria taken separately leads to the same
conclusion.
3.426  The European Communities  consider that asbestos and asbestos-containing products, on the
one hand, and substitute products, on the other, are not “like” products within the meaning of
Article III:4 of the GATT.  According to established GATT practice527, four specific criteria can be
used to assess whether products are “like products”:   (i) their properties, nature and quality;  (ii) their
tariff classification; (iii) their end-use; and (iv) consumers’ tastes and habits.  The Panel Report on
United States  - Gasoline528 held that “those criteria were also applicable to the examination of like
products under Article III:4”.  On the issue as to what criteria should be applied in considering what
are “like products”, the Appellate Body report on Japan - Taxes on Alcoholic Beverages  stated that:
“No one approach to exercising judgement will be appropriate for all cases. The criteria in Border Tax
Adjustments  should be examined, but there can be no one precise and absolute definition of what is
‘like’. The concept of ‘likeness’ is a relative one that evokes the image of an accordion. The accordion
of ‘likeness’ stretches and squeezes in different places as different provisions of the WTO Agreement
are applied. The width of the accordion in any one of those places must be determined by the particularprovision in which the term ‘like’ is encountered as well as by the context and the circumstances that
prevail in any given case to which that provision may apply.”529 [italics in the original]
3.427  The EC consider that Canada is confusing the concept of “like products” contained in
Article III:4 of the GATT with that of “directly competitive and substitutable products” contained in
Article III:2 of the GATT, read in conjunction with the relevant Interpretative Note.  However, the
two concepts are radically different.  This can  be seen by examining the texts in question.
Article III:2 contains a concept that is not explicitly contained in Article III:4. The Panel report on
EEC - Measures on Animal Feed Proteins noted that “the General Agreement made a distinction
between ‘like products’ and ‘directly competitive and substitutable products’.”530  Moreover, the
Appellate Body has held that:
“If imported and domestic products are not ‘like products’ for the narrow purposes of Article III:2, first
sentence, then they are not subject to the strictures of that sentence and there is no inconsistency withthe requirements of that sentence. However, depending on their nature, and depending on thecompetitive conditions in the relevant market, those same products may well be among the broadercategory of ‘directly competitive or substitutable products’ that fall within the domain of Article III:2,
second sentence.”
531
3.428  The EC point out that, in the case at issue, although certain fibrous products (p-aramids, PVA,
cellulose) and non-fibrous products (plastic, ductile iron) are indeed “substitutable” for chrysotile
asbestos and products containing it, they are nevertheless not like products. Asbestos has unique
physical characteristics and properties that make it difficult to replace for certain industrial purposes,especially in the chemical, petrochemical, aeronautical and nuclear industries. Amphibole asbestos is
in fact the only product that is truly a like product to chrysotile asbestos. And it is precisely because
                                                     
527 Report of the Working Party on Border Tax Adjustments , BISD 18S/97, para.18. Cited in particular
by the Appellate Body in the Report on Japan – Customs Duties, Taxes and Labelling Practices on Imported
Wines and Alcoholic Beverages , adopted on 10 November 1987, BISD 34S/83, pp.22-26.
528 United States – Gasoline , Appellate Body Report and Panel Report, adopted on 20 May 1996,
WT/DS2/9, paras.6.8 et seq .
529 Japan − Taxes on Alcoholic Beverages, Report of the Appellate Body, adopted on 1 November
1996, WT/DS8/AB/R;  WT/DS10/AB/R; WT/DS11/AB/R, p.24.
530  EEC - Measures on Animal Feed Proteins , adopted on 14 March 1978, BISD 25S/49, para.4.3.
531 Japan − Taxes on Alcoholic Beverages , Report of the Appellate Body, adopted on 1 November
1996, WT/DS8/AB/R; WT/DS10/AB/R; WT/DS11/AB/R, p.28.WT/DS135/R
Page 159
asbestos is uniquely suited for certain industrial uses that the Decree envisages some exceptions to the
general prohibition.
3.429  The EC consider that, in this case, three criter ia are pertinent when assessing the similarity of
products pursuant to Article III:4. These criteria are the products’ properties, nature and quality, tariffclassification and end-use.  As far as the tastes and habits of consumers are concerned, the EC
consider that, while this criterion may be relevant in certain cases (everyday consumer goods), it is
not relevant in the case of asbestos and asbestos-containing products. The Panel Report on
United States - Gasoline  also made use of the first three criteria, but ignored the tastes and habits of
consumers.
3.430  The EC claim that the properties, nature and qualities of the products are different, both for
asbestos fibres and substitute products and products containing asbestos and substitute products.  As
the EC have explained in their factual arguments, asbestos fibres have a very particular fibrous
texture. They consist of bundles of small fibrils, stuck to each other. The fibrils separate very easily
lengthways under the effect of machining, shock, vibration, friction (or simply draughts if it is a
friable material) to form a cloud of very fine dust, often invisible to the naked eye, which can settleanywhere and penetrate very deep into the lungs. Asbestos fibres are minute in diameter (less than
1 micron) so there may be high concentrations in the air.   According to the EC, the properties of
asbestos fibres serve to underline their uniqueness.  Although they pose a danger to health, their
unique characteristics incontestably make them a mineral with exceptional physical and chemical
properties. They do not burn, are remarkably resistant to various kinds of chemical attack and showhigh mechanical resistance to traction. No other product, natural or synthetic, exhibits all of the
properties that asbestos fibres possess, for the simple reason that no substitute product has the same
characteristics as these fibres.  The explanatory notes to the Harmonized System (“HS”) acknowledge
the special nature of asbestos fibres, stating that:
“Asbestos is a natural mineral substance produced by the decomposition of certain rocks. It has a very
characteristic fibrous texture; it is sometimes silky in appearance and the colour varies greatly, being
usually white, but sometimes grey, greenish, blue or dark brown …”532
3.431  The EC indicate that the characteristics of asbestos fibres make them particularly dangerous
to health as they increase the risk of cancer. It is the diameter of a fibre that determines how long it
will remain in suspension in the air.  Consequently, the smaller the diameter, the higher the risk of
cancer. In addition, the greater the fibrillation, the higher the risk of inhalation, again increasing the
risk of cancer.  Since 1977, the WHO has recognized the existence of a link between the
characteristics of asbestos fibres and their danger to health by classing them (including chrysotilefibres) in “category I” of proven carcinogens. By contrast, none of the substitute products for
chrysotile asbestos is classified as carcinogenic for man.  Substitute fibres possess different
characteristics from chrysotile: they are much bigger in diameter than asbestos fibres, up to
40 microns thick. Substitute fibres also show a more limited fibrillation capacity.  Moreover, many
substitute products are not fibrous in texture (for example, plastic, ductile iron or plaster).  The ECpoint out in this connection that Canada mentions only fibrous substitute products (cellulose,
p-aramid, PVA), making no reference at all to non-fibrous products. Yet non-fibrous products are
very easily and commonly used instead of asbestos-cement, which used to account for 90 per cent of
the chrysotile used in France.  The EC conclude that the very nature, composition, physical properties
and proven effects on human health of chrysotile make it radically different to substitute products,whether fibrous or non-fibrous.  For this reason, in 1986 the ILO
533 – followed by the WHO in 1996534
                                                     
532  Explanatory notes of the World Customs Organization, Harmonized System, note under heading
HS 25.24 “Asbestos”.
533 ILO, Convention concerning Safety in the Use of Asbestos (Convention 162) , adopted on 24 June
1986, International Labour Conference, Geneva.
534 Press release dated 26 July 1996.WT/DS135/R
Page 160
and 1998535 – recommended replacing asbestos by less harmful materials or technologies wherever
possible.
3.432  Regarding asbestos-containing products and substitute products, the EC point out that
asbestos fibres possess such special characteristics that they necessarily have an impact on theproperties of the product in which they are incorp orated, making that product extremely dangerous to
health too.  If one compares a PVC pipe with a chrysotile-cement pipe, for instance, it is impossible to
say that the products are of the same nature. One is made of cement (with asbestos added), whereas
the other is made of plastic.  The EC note that if one compares a slab of chrysotile-cement used as a
roof covering with a tile or slate, it is evident on ce again that the products are completely different in
kind. They do not have the same properties or qualities either.  Here again, in the EC’s view, it is
impossible to speak of “similarity” between asbestos-containing products and substitute products.The EC note that Canada is not wrong when it refers to “convergence” and “resemblance” in terms of
the properties, quality and nature of the products concerned. But the fact remains that “convergence”
and “resemblance” certainly do not mean “likeness” within the meaning of Article III:4 of the GATT.
The EC claims that this lack of “similarity” between asbestos-containing products and substitute
products is also confirmed by the fact that, as the materials obtained after replacing asbestos havedifferent physical and mechanical properties from the material which contained asbestos, each
substitution operation requires, on the part of manufacturers, careful checks on the properties of the
new material and sometimes a complete redefinition of the field of application of the product. This is
especially true in the case of gaskets and plaited sealing twine.
3.433  The EC assert that the tariff classifications are different, both for asbestos fibres and substitute
products and for asbestos-containing products and s ubstitute products.  Canada does not deal with the
question of tariff classification for asbestos fibres.  It should be recalled that the explanatory notes to
the Harmonized System (“HS”) recognize the special nature of asbestos fibres by stating that
“Asbestos … has a very characteristic fibrous texture …”
536  Given the differences due to the
properties, nature and quality of asbestos fibres, the Harmonized System takes the logical step of
classifying them under a single tariff heading: HS 25.24.  This heading includes chrysotile asbestos
fibre. The only other products covered by the same heading are the other varieties of asbestos fibres
such as amphibole asbestos fibres. Substitute fibres, on the other hand, all fall under different tariff
headings. The EC consider that, in the light of the tariff classification criterion, therefore, there can be
no likeness between asbestos fibres and substitute fibres.  In the second case – asbestos-containing
products and substitute products – the EC point out that many substitute products come under adifferent tariff heading from asbestos-containing pr oducts.  For example, rock wool and glass wool
fall under heading HS 68.06, which does not cover asbestos-containing products.  Some asbestos-
containing products, on the other hand, fall under a specific tariff heading such as HS 68.12, which
covers in particular clothing, cords, yarn and thread, and gaskets containing asbestos. This heading
does not cover any products that do not contain asbestos.  As for articles of chrysotile-cement(HS 68.11), the EC must point out that they can be replaced by many other products that fall under
different tariff headings.  For example:  (i) articles of plaster come under tariff heading HS 68.09;
(ii) articles of cement are under tariff heading HS 68.10;  and (iii) plastic pipes come under tariff
heading HS 39.17.  By the criterion of tariff classi fication, the EC conclude that there can be no
similarity between asbestos-containing produc ts and products not containing asbestos.
3.434  The EC claim that the end-uses are different.   Canada takes the line that the concepts of “like
products” and “competitive or substitutable products” are equivalent and that the criterion of end-use
is the key to determining what are “like products” within the meaning of Article III:4 of the GATT.
However, the two concepts are radically different. Although end-use is the key criterion for
                                                     
535 IPCS Environmental Health Criteria (203) on Chrysotile , WHO, 1998, Geneva.
536 Explanatory notes of the World Customs Organization, Harmonized System, note under heading
HS 25.24 “Asbestos”.WT/DS135/R
Page 161
determining whether two products are directly competitive or substitutable537, this is not true for
“likeness” within the meaning of Article III:4, which is essentially “technical” in nature.  The EC note
that this was pointed out in the clearest terms in the Panel Report on Japan - Taxes on Alcoholic
Beverages .
“In the view of the Panel, the wording of the term ‘directly competitive or substitutable’ does not
suggest at all that physical resemblance is required in order to establish whether two products fall underthis category. This impression, in the Panel’s view, was further supported by the words ‘where
competition exists’ of the Interpretative Note; competition can and does exist among products that do
not necessarily share the same physical characteristics. In the Panel’s view, the decisive criterion in
order to determine whether two products are directly competitive or substitutable is whether they havecommon end-uses, inter alia , as shown by elasticity of substitution. The wording of the term ‘like
products’ however, suggests that commonality of end-uses is a necessary but not a sufficient criterionto define likeness. In the view of the Panel, the term ‘like products’ suggests that for two products to
fall under this category they must share, apart from commonality of end-uses, essentially the same
physical characteristics .”
538
In other words, the end-use is not in itself conclusive in deciding whether products are “like” within
the meaning of Article III:4 of the GATT.
3.435  The EC argue further that, even where products may have some end-uses in common, that is
not sufficient grounds to class them as “like products”, if each of them also has many other end-uses.
As the EC has already asserted above that asbestos and asbestos-containing products are different in
terms of their properties, nature, quality and tariff classifications, the criterion of end-use cannot, byitself, invalidate the conclusion that such product s are not “like” products within the meaning of
Article III:4 of the GATT.  In any event, substitute products can be used for many other purposes than
the uses to which asbestos fibres or asbestos-cont aining products can be put, and vice-versa. For the
EC, every asbestos-free substitute product necessarily has many uses that asbestos-containing
products do not have.  In conclusion, the Decree is compatible with Article III:4 of the GATT 1994inasmuch as:  (i) there is no protection of domestic industry;  (ii) there is no discriminatory treatment
of imported products compared with domestic products  de jure  or de facto ;  and (iii) there is no
likeness within the meaning of Article III:4 of the GATT between asbestos and asbestos-containing
products, on the one hand, and their substitute products on the other.
3.436  Canada  contends that case law in the GATT and the WTO indicate that the concept of “like
product” in Article III:2 must be interpreted narr owly.  This narrow interpretation does not, however,
apply to Article III:4, where the concept of likeness must be interpreted more broadly, given the
purpose and context of Article III:4.  Consequently, Article III:4 encompasses a broader range of like
products than Article III:2, first sentence.  Canada also refers to its response to question 34 of the
Panel (see Annex III).
3.437  Canada indicates that, for the purposes of Article III:4 of the GATT, it does not invoke the
argument of likeness with respect to non-fibrous substitutes (e.g. PVC, ductile iron).  Nor does
Canada extend the argument of likeness to non-fibrous products used as substitutes for chrysotile-
cement products.  The argument of likeness put forward by Canada is limited to glass fibre, cellulose
fibre, and PVA fibre, even though the range of substitute fibres is broader, as well as to fibro-cement
products incorporating these types of fibre.  Canada does not consider that, in order to demonstrate theviolation of Article III:4 of the GATT and Article 2.1 of the TBT Agreement, it is incumbent upon it
to cite all the products like to chrysotile or to ch rysotile-cement products.  For there to be a violation,
                                                     
537 Japan − Taxes on Alcoholic Beverages, Report of the Appellate Body, adopted on
1 November 1996, WT/DS8/AB/R; WT/DS10/AB/R; WT/DS11/AB/R, p.29.
538 Japan − Taxes on Alcoholic Beverages, Report of the Panel, adopted on 1 November 1996,
WT/DS8/R;  WT/DS10/R; WT/DS11/R, p.113.  The EC note that the Appellate Body did not contradict the
Panel on this point, see the aforementioned Report of the Appellate Body, p.26.WT/DS135/R
Page 162
it simply suffices to demonstrate that, for an imported product or a series of given products, there are
like products that enjoy more favourable treatment.  According to Article III:4, these like products
must be of national origin.  Canada notes that the EC  go to a great deal of trouble to assert that PVC
and ductile iron are not like products to chrysotile fibre and chrysotile-cement products.  However,
this analysis, although interesting, is completely irrelevant for determining whether glass fibre,cellulose fibre, PVA fibre, as well as fibro-cement products incorporating these types of fibre, are
products like to chrysotile fibre and chrysotile-cement products.
3.438 Canada points out that, of the four criteria that can be used to determine the likeness of
products, it takes into account end-use and tariff classification, as well as the product’s properties,
nature and quality.  These criteria show that the products in question are like products.  Canada also
agrees with the EC that consumer tastes and habits are not relevant in this case.
3.439  Concerning the end-use criterion, Canada emphasizes that chrysotile fibre and chrysotile-
cement products are like products to PVA, cellulose and glass fibres, and to fibro-cement products
incorporating them. Canada reiterates the importance of an analysis of likeness on a “case-by-case”
basis, i.e.  based on the circumstances.  In this case, because these products are inputs that cannot be
used in their raw state, particular importance must be accorded to the end-use criterion in these
circumstances.  Canada notes that the EC appear to claim that the end-use criterion can be decisiveonly for determining whether two goods are directly competitive or substitutable according to
Article III:2, first sentence.  This question might be  relevant if Article III:2 was being addressed, but
this is not the case.  Canada recognizes that end-use is a “decisive criterion” for determining the
“substitutability”
539 or directly competitive nature of two products.  In Canada’s view, however, end-
use is not the only relevant factor with respect to “substitutability”, as the EC suggest.  End-use can beequally important with respect to likeness, as the Panel dealing with Article III:2 in Japan - Taxes on
Alcoholic Beverag es, asserts: “In the Panel’s view, the wording makes it clear that the appropriate test
to define whether two products are ‘like’ or ‘directly competitive or substitutable’ is the
marketplace.”
540  The market determines the end-use of a product. Canada notes that the EC maintain
that substitutability and likeness are two radically different concepts. Canada takes the opposite view,
like the Appellate Body in Korea - Taxes on Alcoholic Beverages , namely, that likeness is only a sub-
set of  substitutability and that like products are by definition substitutable.541   In any event, the
jurisprudential distinction between substitutability and likeness in Article III:2 is not necessary
because in this case it is a question of Article III:4.  The concept of substitutability is inevitably
implicit in Article III:4 whenever products are deemed to be like products according to the broader
criterion of likeness in Article III:4.
3.440  Canada indicates that the tariff classification of chrysotile-cement products is exactly the
same for 107 separate products in the Harmonized System (HS).  Heading 68.11 of the HS contains
“Articles of Asbestos-Cement, of Cellulose Fibro-cement or the Like”.  The HS describes the
products contained in heading 68.11 as follows: “T his heading covers hardened articles consisting
essentially of an intimate mixture of fibres (for example, asbestos, cellulose or other vegetable fibres,
synthetic polymers [PVA] or glass fibres).”542  All of the like products cited are found together, under
107 customs codes with six or eight common digits.  For example, shingles made of chrysotile-
cement, cellulose-cement, PVA-cement and glass-cement fall under code 6811.2011.  Canada
indicates that, despite these facts, the EC continue  to argue, less than convincingly, that “By the
criterion of tariff classification, therefore, there is no similarity between asbestos-containing products
and products not containing asbestos.” Canada is surprised that the EC simply reject the argument of
                                                     
539 Japan − Taxes on Alcoholic Beverages, Report of the Panel, adopted on 1 November 1996,
WT/DS8/R;  WT/DS10/R; WT/DS11/R, para.6.22.
540 Id.
541 Korea - Taxes on Alcoholic Beverages , Report of the Appellate Body, adopted on 17 February 1999,
WT/DS75/AB/R, WT/DS84/AB/R, para.118.
542 Source:  World Customs Organization.WT/DS135/R
Page 163
likeness for the products cited by Canada merely by demonstrating that products which are not cited
by Canada (PVC, ductile iron, rock wool, etc.) are not like products for the purposes of Article III:4.
Such an approach is unfounded. Canada considers that the fact that glass wool or rock wool products
do not fall under the same heading as chrysotile-cement products in no way changes the fact that
chrysotile-cement products are found in exactly the same heading as articles containing PVA fibre,glass fibre and cellulose fibre.
3.441  Canada reaffirms its arguments regarding the properties, nature and qualities of the products
in question and calls on the Panel not to lend too much weight to the distinctive physical properties of
asbestos, put forward by the EC, i.e. that asbestos fibre is silky, and white, grey, green, blue or brown
in colour.  Canada notes that the EC are also endeavouring to reject the argument of likeness
advanced by Canada by stating that the “lower” pathogenicity of substitute fibres makes it impossible
to conclude that they are like products.  As Canada has already asserted, the inadequate state ofscientific knowledge about substitute fibres makes it impossible to conclude that they are less
carcinogenic than chrysotile fibres.  In any event, the fact that a product has a greater or lesser impact
on health is not a criterion that makes it impossible to conclude that they are like products.  In this
respect, wine and vodka are like products, even if their effects on health are different.
543
3.442  The European Communities  emphasized that it follows clearly from a textual analysis of
Article III:4 that the “like products” provision therein does not cover “directly competitive or
substitutable” products.  In fact, whereas Article III:2, second sentence, read in the light of the
corresponding Interpretative Note, provides for an examination of directly competitive or
substitutable products, Article III:4 mentions only the consideration of “like domestic products”.  This
difference in the texts is not a matter of chance.  If  the authors of Article III:4 had intended to include
an analysis of directly competitive or substitutable products, it would have had to appear in the text of
Article III:4 or in an Interpretative Note, as wa s done in Article III:2, second sentence.  Any other
interpretation would result in giving a provision of the GATT a meaning that the signatories to the
Agreement did not intend.  The EC recall in this connection that the Appellate Body considered that
“directly competitive or substitutable products” were a “broader” category than “like products”.544
3.443  The EC, having already developed this point, only wish to point out that, at the first meeting
of the Panel with the parties, Canada stated that “the Panel in  Japan - Alcoholic Beverages  stated that
all similar products are, by definition, directly substitutable”.545  In the EC’s view, however, the
passage from the Panel Report mentioned by Canada needs to be cited in full. In fact, the Panel in
Japan - Taxes on Alcoholic Beverages  stated that:
“In the view of the Panel, like products should be viewed as a subset of directly competitive or
substitutable products.  The wording (‘like products’ as opposed to ‘directly competitive or
substitutable products’) confirmed this point, in the sense that all like products are, by definition,
directly competitive or substitutable products, whereas all directly competitive or substitutable products
are not necessarily like products.”546
3.444  The EC also note that a Panel has already concluded that the concept of “like products” in the
context of Article III:4 does not cover directly compet itive or substitutable products.  Thus, in the case
of EEC – Measures on Animal Feed Proteins , the Panel observed that:
                                                     
543 Japan - Customs Duties, Taxes and Labelli ng Practices on Imported Wines and Alcoholic
Beverages Imported , BISD 34S/83, adopted on 10 November 1987.
544 Japan − Taxes on Alcoholic Beverages , Report of the Appellate Body, adopted on
1 November 1996, WT/DS8/AB/R;  WT/DS10/AB/R;  WT/DS11/AB/R, p.28.
545 Canada’s oral submission, 1 June 1999, para.290, See also para. 3.439 above.
546 Japan − Taxes on Alcoholic Beverages, Report of the Panel, adopted on 1 November 1996,
WT/DS8/R;  WT/DS10/R; WT/DS11/R, para.6.22.WT/DS135/R
Page 164
“Having regard to its own conclusion with respect to ‘like products’, the Panel was satisfied that
animal, fish and synthetic proteins could not be considered as ‘like products’ for the purpose ofArticle III:4. Since the obligations under Article III:4 relate to ‘like products’, the Panel concluded that
the non-application of the EEC measures to these products was not inconsistent with the EEC
obligations under the Article.”547
The EC point out that, for a better understanding of this conclusion, it should be noted that the same
Panel also pointed out that:  “ … vegetable proteins and skimmed milk powder were technicallysubstitutable in terms of their final use and that the effects of the EEC measures were to make
skimmed milk powder competitive with these vegetable proteins”.
548  The EC maintain that, despite
Canada's unfounded assertions to the contrary, it fo llows from these two paragraphs that Article III:4
does not cover directly competitive or substitutable products.
3.445  The EC thus confirm the arguments they have already put forward, namely that, even if they
can be considered to be competitive or substitutable products, substitutes for asbestos fibres and
asbestos-containing products are not “like products ” within the meaning of Article III:4 of the
GATT 1994.  Substitute products, by definition, are only substitutable for other products.  In the
present case, the substitute products are only substitutable for asbestos fibres and products containingthem to a very limited extent.  In fact, in view of the multiple uses of asbestos, there is no single
natural or synthetic product that alone could replace asbestos generally in all the products or materials
that contain it.  Thus, there is no substitute for asbestos, only alternative solutions that rely on
substitutes which vary depending on the intended application and are sometimes used in combination
in order to obtain a material or product that performs an equivalent function.
3.446  The EC claim that the nature/quality/properties criterion is clearly important for assessing
likeness within the meaning of Article III:4 of the GATT.  This follows from the practice of previous
panels, which have always used the physical characteristics for the purpose of determining “likeness”
within the meaning of Article III:4, but this is not the case for the other criteria.  Thus:  (i) the Panel
on Measures Affecting Alcoholic and Malt Beverages
549 used neither tariff classification, nor end-use,
nor consumers’ tastes and habits for determining the “likeness” of the products within the meaning ofArticle III:4;  (ii) the Panel on EEC - Measures on Animal Feed Proteins
550 used neither end-use nor
consumers’ tastes and habits for determining the “likeness” of the products within the meaning of
Article III:4;  (iii) the Panel on United States - Gasoline551 did not use consumers’ tastes and habits for
the purpose of determining the “likeness” of the products within the meaning of Article III:4.  The EC
note, on the other hand, that all these Panels used the nature/quality/property criterion for examininglikeness within the meaning of Article III:4 of the GATT, which underlines the importance of this
criterion within the context of this provision.  The EC add that, among these differences in the nature,
properties and quality of the products, the health risk posed by the product must necessarily be taken
into account.  A dangerous product should be regarded as being different in nature and quality from a
harmless or less dangerous product. The EC also emphasize that, even if the criterion of consumers’tastes and habits might seem to have little relevance to the present case insofar as the products
concerned are not consumer goods, it might nevertheless be useful to analyse the consumer's
perception of these products.  There can be little dou bt that informed users would not choose asbestos
or asbestos-containing products after the competent international organizations had decided that
asbestos was a proven carcinogen.
                                                     
547 EEC - Measures on Animal Feed Proteins , adopted on 14 March 1978, BISD 25S/49, para.4.11.
548 Id., para.4.3.
549 Measures Affecting Alcoholic and Malt Beverages , adopted on 19 June 1992, BISD 39S/206,
paras 5.73-5.75.
550 EEC - Measures on Animal Feed Proteins , adopted on 14 March 1978, BISD 25S/49, para.4.2.
551 United States – Gasoline , Appellate Body Report and Panel Report, adopted on 20 May 1996,
WT/DS2/9, para.6.9.WT/DS135/R
Page 165
3.447  The EC assert that the criteria of likeness, in particular the nature/quality/properties criterion,
mean that the substitute products are not “like” products with respect to asbestos and asbestos-
containing products.  Asbestos fibres are by defini tion “fibrous” products.  It follows logically that,
given this marked difference in physical characteristics, no non-fibrous substitute product could be
considered a product “like” to asbestos fibres.  As for “fibrous” substitutes, they cannot be considered“like” either within the meaning of Article III:4 because the morphology of asbestos fibres is different
to that of “fibrous” substitutes. The fibres that must be taken into account in making a metrological
assessment of a working environment have been defined by the WHO in accordance with the
following dimensional parameters: (i) more than 5 microns in length;  (ii) less than 3 microns in
diameter;  (iii) ratio of length to diameter greater than 3 microns [3:1]. Chrysotile fibres are 0.1 to
1 micron in diameter and separate lengthways into even finer crystalline fibrils (0.020 micron).  The
EC indicate that substitute fibres, on the other hand, have a different morphology.  Thus, the polyvinylalcohol and para-aramid fibres used to replace asbestos are 2 to 8 mm in length (i.e. 2,000 to
8,000 microns) and from 10 to 16 microns in diameter.  Cellulose fibres, which are from 12 to
40 microns in diameter, can give rise to finer particles (fluff), which are said to irritate the respiratory
pathways.  These fibres are more than 10 microns in diameter, which physically prevents them from
penetrating into the pulmonary alveoli.  In a ddition, the EC stresses the analogy with the case
United States - Measures Affecting Alcoholic and Malt Beverages .
552  If a beer containing the same
substance (alcohol) is not “like” to another beer simply because it contains a different quantity of
alcohol, then a fortiori  a product containing a different type of fibre cannot be considered to be “like”
a product containing asbestos.  The EC also mention the case of EEC - Measures on Animal Feed
Proteins,  in which the Panel noted that “the varying protein contents and the different vegetable,
animal and synthetic origins of the protein products before the Panel” were sufficient to conclude that
“these various protein products could not be considered as ‘like products’ within the meaning of
Articles I and III”.553  Similarly, the different origin of the fibres present in the substitute products
containing them prevents these products from being considered “like” to products containing asbestos.
3.448  The EC note that Canada itself points out, in relation to the quality of fibrous substitutes, that
they are often “of lower quality in terms of their physical, chemical and mechanical resistance”. The
EC also emphasize that asbestos fibres have certain characteristics that differentiate them from other
fibres.  Thus, asbestos fibres do not have the same physical characteristics as the substitute fibres,
despite Canada's assertions to the contrary.  Furthermore, within the context of this
nature/quality/properties criterion, the EC maintain that, being hazardous, asbestos and asbestos-
containing products cannot be considered as “like” to  other products.  In fact, asbestos is a hazardous
product classified as such by the competent international bodies (a category I carcinogen) whose use
can put the lives of thousands at risk.  Its hazardous nature has a marked impact on the consumer’s
perception of the product.  Thus, in 1989, the Supreme Court of Canada recognized that the risks
associated with the use of asbestos were already a matter of common knowledge in 1973.  In
particular, it observed that:
“It seems clear from the journals, newspapers, magazines and manuals which are discussed in detail in
the courts below that asbestos-related health risks had spread well beyond the boundaries of industryknowledge and were in wide public circulation. […] Quite apart from the many studies and reports onasbestos-related health hazards published in vari ous medical and scientific journals prior to the
issuance of the policy, there were numerous articles published in newspapers across Canada and in the
United States dealing with asbestos-related health hazards […] some of the articles in question werenot published in obscure publications.  These were prominent articles in the New York Times, the WallStreet Journal, the New Yorker magazine, the Washington Post and others. […] Did all of this lend a
                                                     
552 United States - Measures Aff ecting Alcoholic and Malt Beverages , adopted on 19 June 1992,
BISD 39S/206.
553 EEC - Measures on Animal Feed Proteins , adopted on 14 March 1978, BISD 25S/49, para.4.2.WT/DS135/R
Page 166
‘public character’ and ‘notoriety’, within the meaning of Article 2486 C.C., to the asbestos-related
health risks that existed in 1970 and 1973?  In my respectful opinion, it did.”554
3.449  The EC contend that not only North American consumers, but also European consumers, are
perfectly well aware of the carcinogenicity of asbestos.  Consumers may therefore take a different
view of asbestos and asbestos-containing products, on the one hand, and the substitute products, onthe other.  This difference in perception reinforces the lack of similarity between these products.  In
these circumstances, it must be concluded that as bestos and asbestos-containing products are not
“like” the substitute products within the meaning of Article III:4, in particular because the
nature/quality/properties of these products are different from those of asbestos and asbestos-
containing products, as is the consumer's perception of them, due to the health risks associated withthe characteristics of asbestos.  To conclude, the EC  wish to draw attention to the paradox inherent in
the observations made by Canada.  Thus, Canada  developed, at considerable length, arguments
according to which amphibole fibres are very different to chrysotile fibres.  The Canadian arguments
related in particular to their physical characterist ics.  The EC consider that, resituated within the
present context, Canada’s arguments concerning a hypothetical similarity between asbestos andasbestos-containing products, on the one hand, and the substitute products, on the other, are even
more surprising.
3.450  Canada  emphasizes that, in their second written submission, the EC stated that the tastes and
habits of consumers are relevant in order to determine whether products are like products.
555
However, in their first written submission, the EC do not identify the tastes and habits of consumers
as a relevant criterion for the purposes of examining the similarity of asbestos products because they
are not products in everyday use.556  In their second written submission, the EC consider that the
hazardous nature of asbestos has an effect on the way in which consumers perceive the product.
According to the EC, the fact that consumers, rightly or wrongly, perceive chrysotile pipes as
different to PVA, cellulose or glass fibre pipes from the risk standpoint supports the hypothesis that
chrysotile-cement and fibro-cement are not like products.  Canada states that such a hypothesis does
not stand up to examination.  Consumers’ perception of the health risks of chrysotile and of substitute
fibres is not an element that should be taken in to account when determining the likeness of chrysotile
fibres and substitute fibres.  Moreover, it is not appropriate to consider the criterion of the tastes and
habits of manufacturers of fibro-cement – the consumers whose tastes and habits count in this case –
when determining the likeness of chrysotile fibres and PVA, cellulose or glass fibres.  Canada agreeswith the practice of the Panel in the three cases c ited by the EC in paragraph 3.446 and asks the Panel
not to take account of consumers’ tastes and habits in order to determine the likeness of the products
in this case.
3.451  Canada claims that, contrary to the EC’s argu ment, the different origins of substitute fibres
(artificial minerals, natural, organic, synthetic organic or natural organic minerals) do not preventthem being considered like products.  The higher cost of substitute fibres in comparison with
chrysotile fibres, and the fact they have a number of uses in addition to replacing chrysotile fibre, do
not run contrary to the likeness of substitute fi bres and chrysotile fibres within the meaning of
Article III:4 of the GATT.  The criterion of the nature, quality and properties of the product imply that
chrysotile fibre and chrysotile-cement, on the one hand, and substitute fibres and fibro-cement, on theother, have qualities in common.  Canada notes that, in their reply to question 9 of Canada (see
Annex II), the EC recognize the relevance of the chemical composition of the fibres for determining
likeness and relate it to the criterion of the nature, quality and properties of the products.  Asbestos
fibres have the same characteristics as substitute fibres.  Even if the length, diameter and
                                                     
554 Canadian Indemnity Company vs. Canadian Johns-Manville Company, Limited, 7 December 1989;
13 September 1990, spec. Part V, available on the Website of the Supreme Court of Canada:
www.droit.umontreal.ca/doc/csc.scc/fr/index.html .
555 See paras. 3.442-3.449 above.
556 See para. 3.429 above.WT/DS135/R
Page 167
width/diameter ratio have an effect on pathogenicity (one of the three “Ds”), in Canada’s view this
does not mean that fibres with different dimensions are necessarily not like fibres.  Canada notes that,
in paragraph 3.447, the EC state that fibrous substitute products cannot be considered as like products
within the meaning of Article III:4 because the mor phology of asbestos fibres is not the same as that
of “fibrous” substitute products.  The EC therefore ma intain that substitute fibres for asbestos used in
fibro-cement are too large to penetrate the lungs and cannot be taken into account when making a
metrological assessment of a work environment according to the dimensional parameters set by the
WHO.  In Canada’s view, the EC’s conclusion is contradicted by the Notice concerning chrysotile
asbestos and possible substitute products .  This Notice clearly states that the characteristics of the
fibres suggest that substitute fibres (PVA, p-aramids and cellulose) of the critical size and shape reach
human pulmonary alveoli.557  The dimensional parameters set by the WHO do not constitute the
criterion of the nature, quality and properties according to which the likeness of fibrous products isdetermined.  They help to identify fibres likely to r each far into the lungs.  That is all.  A fibre is a
fibre, irrespective of its dimensions.  Canada points out that the potential risks or harmlessness of
chrysotile fibres is not an element to be taken in to account in order to determine whether chrysotile
fibres can be considered as “like” products to other fibres.  Even if the toxicity of chrysotile is not the
same as that of amphiboles, the chrysotile fibre is a “like” product to amphibole fibres.  Likewise,some substitute fibres are like to chrysotile fibre because of their nature, quality and properties,
irrespective of any differences in their toxicity potential.  There is no contradiction between
distinguishing two types of fibres at the scientific level and in relation to their pathogenicity, on the
one hand, and applying the criteria utilized in the WTO and the GATT to determine whether products
are like products.  An examination of likeness in connection with the GATT and the WTO is differentto an analysis of pathogenicity.  The toxicity of a product is not recognized as a criterion when
examining likeness.
3.452  The European Communities contend that Article III:4 does not cover “directly competitive
or substitutable products”.  In fact, whereas Article III:2, second sentence, read in the light of the
corresponding Note, provides for an examination of directly competitive or substitutable products,Article III:4 mentions only the consideration of “like domestic products”.  This difference in the texts
is not a matter of chance.  If the authors of Article III:4 had intended to include an analysis of directly
competitive or substitutable products, it would have had to appear in the text of Article III:4 or in an
Interpretative Note, as was done in Article III:2, second sentence.  In the EC’s view, any other
interpretation would result in giving a meaning to a provision of the GATT which the signatories to
the Agreement had not intended and would, therefore, not be supported by the generally accepted
principles of treaty interpre tation.  The GATT case law relies essentially on the physical
characteristics of products, i.e. the nature, quality and properties criterion, when assessing “likeness”
within the meaning of Article III:4 of the GATT.  In  this case, the substitute products for asbestos can
be non-fibrous or fibrous, although the vast majority is non-fibrous.  The EC note that Canada accepts
that non-fibrous substitute products are not “like” products in this case.  In view of the multiple uses
of asbestos, there is no single natural or synthetic product that alone could replace asbestos generallyin all of its applications and for all the products or materials that contain it.  Thus, there is no single
substitute for asbestos, only alternative solutions which rely on substitutes that vary depending on the
intended application and are sometimes used in combination in order to obtain a material or product
that performs an equivalent function. For example, cellulose has been used for many years in a large
number of applications, including as a partial substitute for chrysotile. The EC conclude that this verylarge category of substitute products with numerous potential uses, including as a substitute for
asbestos, cannot be considered “like” within the meaning of the case law developed under the GATT.
3.453  The EC point out that, among these differences in the nature, properties and quality of the
products, the health risk posed by the product in question must necessarily be taken into account.  In
fact, a dangerous product should be regarded as being different in nature and quality from a harmless
                                                     
557 See Section V of this report, the comments by Canada on the replies by the experts to question 6 of
the Panel.WT/DS135/R
Page 168
or less dangerous product. The EC point out that, at the meeting held on 17 January 2000, the four
scientific experts clearly stated that all the substitute products used to replace chrysotile asbestos are
safer than chrysotile-containing products. Therefore,  the fact that chrysotile is carcinogenic has a
special impact on the consumer’s perception of the products containing it, compared to safer
substitute products.  The EC indicate that, contrary to Canada’s claim, they have not changed theirposition, but have responded to the developments in the written and oral debates before the Panel.
Therefore, even if the criterion of consumers’ tastes and habits might seem to have little relevance to
the present case, inasmuch as the products concerned are not to be consumed directly, it is
nevertheless very useful to analyse the users’ perception of these products when determining likeness.
In these circumstances, in the EC’s opinion, it must be concluded that asbestos and asbestos-
containing products are not “like” the substitute products within the meaning of Article III:4 for three
reasons:  firstly, because the nature, quality and properties of these products are different to those ofasbestos and asbestos-containing products;  seco ndly, the consumer's perception of them is also
different because of the health risks associated with the characteristics of asbestos;  thirdly, the tariff
classification of these products is also different to that of asbestos.
(iii) Imported products … shall not be subject to less favourable treatment
3.454  Canada  claims that, by prohibiting sale, offering for sale or purchase, the Decree alters the
conditions of competition on the domestic market for substitute fibres and products containing
substitute fibres of French origin, on the one hand, and chrysotile fibres and products containing
chrysotile fibre from Canada, on the other.
3.455  Canada asserts that France has an important fibro-cement industry. The two major producers
of fibro-cement products are Eternit and Sain t Gobain. Eternit manufactures PVA fibro-cement
products and Saint Gobain glass-cement products.  Eternit’s products are manufactured at the former
sites of four converted factories: Saint-Grégoire (Ille-et-Vilaine), Terssac (Tarn), Vitry-en-Charolais
(Saône-et-Loire) and Thiant (Nord).  Two produc tion sites in France are used for the manufacture of
glass-cement products: Descartes (Indre-et-Loire), where the factory has been converted, and
Dunkerque (Pas-de-Calais), where two production lines have been introduced.  PVA fibres, which areindustrially synthesized, are of French origin.  Glass fibres are also of French origin. Cellulose fibres
are produced in France.  The products marketed by Eternit are presented as a new generation of
cement fibres without asbestos and are intended mainly for exterior siding and coverings. The glass-
cement composites of the Saint Gobain group are used for cladding.
3.456 Canada claims that chrysotile fibre and chrysotile-cement products are subject to less
favourable treatment than PVA, cellulose and glass fibres and fibro-cement products.  The Decree
banning asbestos is incompatible with the disciplines of Article III:4 of the GATT because itsprovisions subject chrysotile fibre and chrysotile-cement products to “treatment less favourable” than
that accorded to like substitute fibres and fibro-cement products.  According to the Panel’s report in
the case United States – Section 337 of the Tariff Act of 1930 :
“The words ‘treatment no less favourable’ in paragraph 4 call for effective equality of opportunities for
imported products in respect of the application of laws, regulations and requirements affecting the
internal sale, offering for sale, purchase, transportation, distribution or use of products.”558
The French public authorities, in prohibiting the manufacture, processing, sale, export, release on the
domestic market, possession for sale, offer and transfer on any basis of all varieties of asbestos fibres
or of any product containing them, have eliminated the opportunities for competition by chrysotile
                                                     
558 United States – Section 337 of the Tariff Act of 1930 , adopted on 7 November 1998, BISD 36S/345,
para.5.11.  See also United States – Gasoline  cited above, para.6.10, and Canada – Import, Distribution and
Sale of Certain Alcoholic Drinks by Provincial Marketing Agencies , adopted on 18 February, BISD 35S/37,
para.5.6.WT/DS135/R
Page 169
fibre and chrysotile-cement products on the French market.  Canada maintains that the incompatibility
of the Decree banning asbestos with Article III:4 of the GATT is due to the French Government’s
refusal to allow chrysotile fibre and products containing it imported from Canada the opportunity to
compete, a benefit accorded fibres and like products of national origin.
3.457  The European Communities maintain that the contested measure accords with the
fundamental purpose of Article III, which is to preven t protectionism.  Before looking in detail at the
specific provisions of Article III, and especially Article III:4, the interpretation of that article given by
the Appellate Body in its Report on Japan - Taxes on Alcoholic Beverages must be borne in mind:
“The broad and fundamental purpose of Article III is to avoid protectionism in the application of
internal tax and regulatory measures. More specifically, the purpose of Article III ‘is to ensure that
internal measures “not be applied to imported or domestic products so as to afford protection todomestic production”.’. Toward this end, Article III obliges Members of the WTO to provide equality
of competitive conditions for imported products in relation to domestic products. (…) The broadpurpose of Article III of avoiding protectionism must be remembered when considering the relationship
between Article III and other provisions of the WTO Agreement .”
559 [italics in the original]
3.458  The EC note that another Panel report (United States - Measures Affecting Alcoholic and Malt
Beverages ) indicated that:
“The purpose of Article III is thus not to prevent contracting parties from using their fiscal and
regulatory powers for purposes other than to afford protection to domestic production. Specifically, thepurpose of Article III is not to prevent contracting parties from differentiating between different
product categories for policy purposes unrelated to the protection of domestic production .”560
In the EC’s view, the measure complained of is not discriminatory, neither de jure  nor de facto ,
inasmuch as it guarantees effective equality of opportunity for domestic and imported products, in
accordance with the letter of the requirement spelled out in the Reports cited above and in the Report
on United States - Section 337 of the Tariff Act of 1930 .561
3.459  The EC maintain that the Decree does not introduce any de jure  discrimination.  Firstly, the
context and circumstances in which the Decree was adopted show that it is in no way intended to
discriminate against imported products or to protect domestic products. Its sole purpose is to curb the
spread of any risk of death or serious illness linked to exposure to asbestos, in particular among thosesubject to repeated or occasional – and often unwitting – exposure.  Secondly, none of the Decree’s
provisions makes a distinction in terms of treatme nt between French products and “like” imported
products.  For example:  (i) both domestic asbestos fibres and imported asbestos fibres are prohibited;
(ii) both domestic products containing asbestos fibres and imported products containing asbestos
fibres are prohibited;  (iii) both domestic asbestos fibres and imported asbestos fibres may be granted
a temporary exemption on the same terms;  (iv) both domestic products containing asbestos fibres and
imported products containing asbestos fibres may be granted a temporary exemption on the sameterms;  and (v) both substitute domestic products and substitute imported products are permitted.  It is
thus clear to the EC that the Decree makes no di stinction between imported products and domestic
products, and neither its object nor its effect is to protect domestic production, so it is fully compatible
with Article III.
3.460  The EC maintain that the Decree does not create any de facto  discrimination.  In its report on
Japan - Taxes on Alcoholic Beverages , the Appellate Body recalled that  “… Article III obliges
                                                     
559 Japan − Taxes on Alcoholic Beverages, Report of the Appellate Body, adopted on
1 November 1996, WT/DS8/AB/R;  WT/DS10/AB/R;  WT/DS11/AB/R, pp.15 et seq .
560 United States – Measures Aff ecting Alcoholic and Malt Beverages , adopted on 19 June 1992,
BISD 39S/206, para.5.25.
561 United States – Section 337 of the Tariff Act of 1930 , adopted on 7 November 1998, BISD 36S/345.WT/DS135/R
Page 170
Members of the WTO to provide equality of competitive conditions for imported products in relation
to domestic products”.562  In this case, the effective equality of opportunity for domestic and imported
products alike is not only reflected in law, but is also clearly evident from the facts.  As the EC
claimed in their factual arguments, most of the substitute products used in France are imported from
various third countries.  France has a negative trade balance in these substitute products.  The EC notethat, in Canada’s view, the Decree favours the French fibre and substitute products industry.
  The fact
is, however, that France chose to prohibit the use of asbestos on public health grounds. The
changeover was a painful process, especially in human and financial terms, because the French
measure prohibits exports of asbestos and asbestos-containing products, thus closing off external
outlets for its domestic industries. Moreover, far from recommending the use of particular substitute
products, the Decree leaves it to businesses to decide whether to replace asbestos by substitute fibre
products or traditional products (plaster, ductile iron, etc.) of their choice. The Decree thus satisfiesthe “neutrality” requirement in terms of the choice s made by enterprises, as set down in the Panel
Report on United States - Measures Affecting Alcoholic and Malt Beverages :
“The Article III:4 requirement is one addressed to relative competitive opportunities created by the
government in the market, not to the actual choices made by enterprises in that market. Producers
located in the states in question have the opportunity to choose their preferred method of marketing.”563
The EC conclude that the Decree does not produce de facto  discrimination between domestic products
and imported products.
3.461  Canada  maintains that the origin of the fibres claimed by Canada has not been disputed for
all the like products, with the exception of PVA fibre.  Canada notes that the EC claim that PVA
fibres are produced only in China and Japan.  Cana da therefore wonders how it is possible for France
to export PVA fibres if it has no industry manufacturing or processing them. In 1998 alone, France
exported F 41 million worth of PVA fibres.  These fibres exported by France are undoubtedly of
domestic French origin.
3.462  Canada contends that the Decree discriminates by subjecting chrysotile fibre and products
containing it to less favourable treatment than that accorded to similar substitute fibres and fibro-
cement products containing them.  Canada rejects the EC’s arguments that the Decree does not
constitute any form of de jure  or de facto  discrimination.
3.463  Canada maintains that the Decree, by prohibiting the manufacture, processing, sale, export,
domestic marketing, possession for sale, offer or transfer on any basis of all varieties of asbestos
fibres or of any product containing them, constitutes de jure  discrimination in that it does not treat like
products of national origin (substitute fibres or products containing them) in the same way.  Not only
does the ban apply only to asbestos fibre and products containing it, but, what is more, it is applicableonly if there are like products to chrysotile fibre or to the products containing it.  No exception to the
ban will be permitted if there is a like product offering all the technical guarantees.  The Decree
therefore imposes a less favourable treatment in all cases where like products exist.  What is more, the
cases where an exception should be permitted, in the absence of a like product, are very rare.  It is
only on an “exceptional and temporary” basis that asbestos and asbestos-containing products may be
granted effective equality of opportunity with like products of national origin.  Canada notes that the
EC claim that there is no de jure  discrimination because asbestos fibres imported and of national
origin are subject to the same treatment and because substitute products imported and of national
origin are subject to the same treatment.  In Canada’s view, the EC are simply not comparing the right
products.  Article III:4 invoked by Canada provides that imported products “shall be accorded
                                                     
562 Japan − Taxes on Alcoholic Beverages, Report of the Appellate Body, adopted on 1 November
1996, WT/DS8/AB/R; WT/DS10/AB/R;  WT/DS11/AB/R, p.16.
563 United States – Measures Aff ecting Alcoholic and Malt Beverages , adopted on 19 June 1992,
BISD 39S/206, para.5.31.WT/DS135/R
Page 171
treatment no less favourable than that accorded to lik e products of national origin”.  Canada indicates
that the EC fail to compare the treatment given to imported products (chrysotile fibre and fibro-
cement containing it) with that reserved for like products (PVA, cellulose or glass fibre and fibro-
cement containing them).  Canada calls on the Panel to conclude that the text of the Decree treats
chrysotile and chrysotile-cement products less favourably than like products, and that the Decreetherefore constitutes de jure  discrimination.
3.464  Canada also claims that the effective inequality of opportunity available to imported products
and to like products of national origin is apparent not only in law in the text of the Decree, but is also
reflected in the facts.  A total ban on chrysotile fibres and fibro-cement products can only benefit the
French substitute fibres manufacturing and fibro-cement products industries.  Canada points out that
the EC, in their claim that the Decree does not favour the substitute products industry, cite a trade
deficit in the case of PVA (the question of aramid fibres is not relevant to the analysis underArticle III:4).  In Canada’s view, a trade deficit does not necessarily indicate that an industry is doing
better or worse.  In reality, the French PVA fibres industry is in better shape than ever; its exports
more than doubled between 1994 and 1998.  Canada notes that the EC also claim that the national
cellulose fibre industry does not benefit from the ban, pointing out that imports from Canada have
increased.  This claim does not stand up to analysis: it is not because France has imported a marginaladditional quantity of Canadian cellulose fibres since the Decree that the French domestic industry
has not benefited from the ban to the detriment of imported products.  According to Canada, the EC
misleadingly use a passage from United States – Measures Affecting Alcoholic and Malt Beverages to
claim that the Decree is neutral in its application and does not impose a choice on consumers.  On the
contrary, the Decree does indeed impose a choice on the French consumer, who is now preventedfrom using chrysotile fibre or products containing it.  Finally, the fact that the asbestos industry in
France has or has not suffered is of no consequence in this case.  It is a matter of comparing the
effects of the Decree on Canadian asbestos interests with its effects on French interests in the
substitute products industries.
3.465  The European Communities  refer the Panel to the arguments they have already put forward
concerning the absence of de jure  and de facto  discrimination in the Decree’s application (see
paragraph 3.457-3.460 above).
3.466  The EC also point out that the Decree does not make any distinction between “like” national
and imported products. It prohibits the use of all kinds of asbestos and asbestos-containing products in
general, irrespective of origin. The substitute products used to replace asbestos are also treated in
exactly the same way, irrespective of their origin. Therefore, the Decree in question does not
discriminate in any way whatsoever, neither de jure  nor de facto , between all types of asbestos of
whatever origin and between all types of asbestos and substitute products for asbestos of whatever
origin. Indeed, France imports very large quantities of a wide range of substitute products and treats
them in exactly the same way it treats like substitute products of domestic origin, for the purpose of
replacing asbestos.  The EC also contend that the object and purpose of the Decree in question and the
way it was elaborated confirm the view that the intention of the French authorities was not to protectdomestic substitute products, but to protect human health from the risks of asbestos-related diseases.
It follows that none of the conditions for the applica tion of Article III:4 of the GATT is fulfilled in the
present case.  The EC maintain that, as Canada has failed to establish a violation of Article III:4 of the
GATT, there is clearly no need to examine the applicability of Article XX(b) of the GATT in this case
(see, for example, the Panel report on Section 337  in 1989).
(c) Article XI of the GATT
3.467  Canada  points out that, in the Japan - Trade in  Semi-Conductors case, the Panel noted that
“ … this wording was comprehensive: it applied to  all measures instituted or maintained by a
contracting party prohibiting or restricting the im portation, exportation or sale for export of productsWT/DS135/R
Page 172
other than measures that take the form of duties, taxes or other charges”.564  Canada maintains that the
Decree is incompatible with Article XI:1 of the GATT, which applies to all measures instituted or
maintained by a Member that prohibit or restrict the importation, exportation or sale for export of
products, unless the measures are in the form of duties, taxes or other charges.  Through the Decree,
France is maintaining a ban or restriction on the importation of chrysotile and products containing it,other than by duties, taxes or other charges, contrary to its obligation under Article XI:1 of the GATT.
Pursuant to Article 1, paragraphs 1 and 2, of the Decree, in order to protect workers and consumers
“ the importation … of all varieties of asbestos fibres, whether or not incorporated into materials,
products or devices” is prohibited.  Article XI:1 of the GATT applies because one aspect of the
Decree deals specifically with prohibiting importation.
565  As a result of the total ban, producers of
chrysotile or chrysotile-containing products, from Canada and elsewhere, cannot export their products
to the French market.  Similarly, French companies cannot import chrysotile fibre or productscontaining it because, with some limited and temporary exceptions, imports are prohibited and liable
to a fine.
3.468  Canada points out that the penal provisions in the Decree prevent French industry from
seeking to import chrysotile and, as a result, this product will never reach France’s borders; similarly,
a producer of raw chrysotile fibres will refrain from sending his product to France if he knows that itsimportation is prohibited.  Since the Decree took effect on 1 January 1997, the chrysotile-cement
industry has ceased operations. As of that date, the former chrysotile-cement industry was forced to
convert to the use of chrysotile substitute products.  Therefore, rather than speaking of the chrysotile-
cement industry, the expression “fibro-cement industry” is now more appropriate. Canada claims that,
in adopting the Decree, France instituted, and has since maintained, a prohibition or a restriction onthe importation of chrysotile and chrysotile-containing products, originating in Canada and elsewhere,
other than duties, taxes or charges, in violation of the provisions of Article XI of the GATT.
3.469  The European Communities  claim that, as they indicated above
566, Article III:4 of the
GATT is applicable and rules out application of Article XI.
3.470  Canada states that, in the event that the Panel recognizes the dual aspect of the measure,
Canada refers it to the arguments put forward by Canada above.567   If, however, the Panel decides
that the Decree is indivisible and cannot involve two specific aspects that can be examined separately
with respect to Article III:4 and Article XI:1 of the GATT, Canada is of the opinion that it must be
deemed a measure affecting imports and, consequently, be examined in the light of Article XI:1.
Taken as a whole, because of its substance and its true character, the Decree affects imports.  It
establishes a quantitative restriction on imports of chrysotile asbestos fibres.   Among all the types ofmeasure that come within the scope of Article XI:1 of the GATT, the quantitative restriction instituted
by the Decree – the ban - is the most severe and the most extreme of all.
3.471  Canada claims that the Decree is a measure restricting or prohibiting imports within the
meaning of Article XI of the GATT for a number of reasons.  Firstly, the text of the Decree expressly
stipulates that the “importation” of asbestos fibr es and of asbestos-containing products is banned.
According to the terms of Article 1, paragraphs 1 and 2, of the Decree, on the grounds of protecting
workers and consumers “the importation ... of all varieties of asbestos fibres, whether or not these
                                                     
564 Japan – Trade in Semi-Conductors , L/6309, adopted on 4 May 1988, BISD 35S/116, para.104.
565 Canada notes that the principle of the application of Article XI:1 in such circumstances has been
established by several Panels under the GATT 1947, notably in United States – Manufacturing Clause ,
BISD 31S/74, adopted on 15/16 May 1984, para.34;  and in Japan – Trade in Semi-Conductors , BISD 35S/116,
adopted on 4 May 1988, paras.102 et seq. ; and under the GATT 1994, in United States – Shrimps , Report of the
Panel, WT/DS58/R, adopted on 6 November 1998, paras.7.11-7.17.
566 See the EC’s arguments in paras.3.395-3.400 and 3.403-3.407.
567 See paras.3.467 and 3.468 aboveWT/DS135/R
Page 173
substances are incorporated into materials, products or devices” is subject to a ban.568  Secondly, as
France does not produce or extract asbestos fibres on its territory, the ban on manufacturing,
processing, selling and domestic marketing is equivalent, in practice, to an import ban on chrysotile
asbestos fibres.  With respect to chrysotile asbestos fibre, the ban on manufacturing, processing, sale
and offering for sale are complementary to the import ban.  These bans are a means by which Franceis pursuing a more basic objective, namely a ban on introducing chrysotile asbestos fibres into its
territory.  According to Canada , the EC acknowledge that the bans on manufacturing, processing,
selling and marketing are complementary to the import ban.  Indeed, they point out that deleting the
word “importation” from the Decree would not change anything in the asbestos situation in France,
which is equivalent to saying that the basic goals would in any case be attained:  chrysotile asbestos
fibres would not be introduced into France.
569  Thirdly, the Decree is a measure prohibiting or
restricting imports within the meaning of Article XI by virtue of its goal.  Canada notes that the ECclaim that the goal indeed is to halt the spread of asbestos as far “upstream” in the production and
distribution process as possible.
570  However, on French territory, the importation of chrysotile fibre
represents the most “upstream” link in the commercial or industrial chain.  The French Government
has never concealed the fact that the goal of the ban was to prohibit asbestos on its territory in the
future.  With respect to asbestos fibres, this stated goal relates more to importation than to use becauseFrance does not produce asbestos fibres.
3.472  Canada points out that, even if the Decree were considered an internal regulatory measure,
this would not necessarily mean that Article XI:1 would not apply.  Article XI:1 can apply to an
internal regulation that has the effect of restric ting or prohibiting imports.  Excluding any internal
regulation from the scope of Article XI:1, simply because it is an internal regulation, would deprivethe words “other measures” in the conclusion of Article XI:1 of any useful effect.  Such an
interpretation would also be contrary to the position adopted by the Panel in  Canada - Import,
Distribution and Sale of Certain Alcoholic Dr inks by Provincial Marketing Agencies .
571  In that case,
the Panel accepted the argument of the EC that the requirements of provincial liquor boards with
respect to listing and delisting and points of sale, which discriminated against imported alcoholicbeverages, were inconsistent with Article XI:1 of the GATT.  However, the requirements in question
were part of an internal regulatory framework as they concerned the distribution and marketing of
alcoholic beverages.  This did not prevent the Panel from concluding that these requirements were
contrary to the provisions of Article XI:1 of the GATT.  The Panel considered “that systematic
discriminatory practices of the kind referred to should be considered as restrictions made effective
through ‘other measures’ contrary to the provisions of Article XI:1”.
572  The Panel also considered
“that it was not necessary to decide in this particular case whether the practices complained of werecontrary to Article III:4 because it had already found that they were inconsistent with Article XI”.
573
Canada claims that, with respect to chrysotile asbestos fibres, the heart of the Decree is an import ban.For the purposes of this debate, which deals with Canadian imports of chrysotile asbestos fibres and
their applications, the Decree, even when considered as a whole, must be deemed an import restriction
or import ban within the meaning of Article XI:1 of the GATT, and examined in light of thisprovision.
                                                     
568 See footnote 565 above.
569 See para.3.398 above.
570 Id.
571 Canada - Import, Distribution and Sale of Certain Alcoholic Drinks by Provincial Marketing
Agencies , adopted on 18 February 1992, BISD 35S/37.
572 Id., para.4.24.
573 Id., para.4.26.WT/DS135/R
Page 174
3.473  The European Communities  maintain that the Decree must be examined as an internal
measure to which Article III:4 of the GATT alone is applicable, thus ruling out the cumulative
application of Article XI in this case.574
(d) Article XX(b) of the GATT
(i) Nature of Article XX and the burden of proof
3.474  The European Communities contend that, even if the Panel were to hold that the Decree is
incompatible with Article III:4 of the GATT, it would nevertheless have to find that the measure falls
under the exception provided in Article XX(b) of the GATT.  Article XX allows Members an
exemption from their obligations under the General Agreement subject to certain conditions.
According to the precedent set by the Appellate Body in its Report on United States - Shrimps575, the
analysis of the measure in the light of Article XX must begin with the paragraph of Article XX
invoked by the defending party, in this case (b), and continue with consideration of the introductoryphrase (“chapeau”) of that Article.
576  Following this line of approach, the EC will claim that:  (i) the
Decree is necessary to attain the underlying policy goal, in other words to protect human health and
life (test of “necessary” in paragraph XX(b);  (ii) the Decree is not applied in such a manner as to
constitute a means of arbitrary or unjustifiable discrimination between countries where the same
conditions prevail or a disguised restriction on international trade (“chapeau” of Article XX).
3.475  Canada  claims that it is clear from the practice of Panels that, in relation to Article XX(b),  it
is necessary to show that:  (i) the policy which prompted the measure for which the provision is
invoked falls within the category of policies intended notably to protect human life or health;  (ii) the
inconsistent measure for which the exemption is in voked is necessary to fulfil the objective of the
aforesaid policy; and (iii) the measure is applied in compliance with the requirements of the
introductory paragraph or “chapeau” of Article XX.  The Appellate Body also noted that “... the
ultimate availability of the exception is subject to  the compliance by the invoking Member with the
requirements of the chapeau”.577  Article XX permits a “ limited and conditional  exception from the
obligations of the substantive provisions of the GATT”578 [italics in the original] which must,
according to the precedents, be interpreted narrowly.579  Again according to the Appellate Body,
“ … the measures falling within the particular exceptions must be applied reasonably, with due regard
both to the legal duties of the party claiming the exception and the legal rights of the other parties
concerned”.580   Canada notes that the EC assert that they have the right to establish the level of
protection they desire. In any event, this must be done in compliance with their obligations.  The
Appellate Body has condemned the abuse of rights under Article XX of the GATT.581
Sir Leon Brittan, for his part, states that the WTO Agreements do not allow a country to invoke zero
risk:
                                                     
574 See the EC’s arguments in paras.3.395-3.400 and 3.403-3.407 above.
575 United States – Shrimps , Report of the Appellate Body, adopted on 6 November 1998,
WT/DS58/AB/R, paras.83 et seq.
576 United States – Gasoline , Appellate Body Report and Panel Report, adopted on 20 May 1996,
WT/DS2/9, para.6.20.
577 United States – Shrimps , Report of the Appellate Body, adopted on 6 November 1998,
WT/DS58/AB/R, para.157.
578 Id.
579 See also Canada – Administration of the Fore ign Investment Review Act , adopted on
7 February 1984, BISD 30S/140, para.5.20 and United States – Section 337 of the Tariff Act of 1930, adopted on
7 November 1989,  BISD 36S/345, para.5.27.
580 United States – Gasoline , Report of the Appellate Body, adopted on 20 May 1996, WT/DS2/AB/R,
p.22.
581United States – Shrimps, Report of the Appellate Body, adopted on 6 November 1998,
WT/DS58/AB/R, para.122 .WT/DS135/R
Page 175
“Using the precautionary principle to justify action aimed at reducing risks to zero would clearly be
excessive.  We should therefore distinguish the pr ecautionary principle from a zero risk approach.  To
try and adopt the latter across the board could bring us to a scientific standstill since there are risks
involved in any new venture.”582
3.476  Canada claims that it is up to the EC to demonstrate that the Decree is an exception to
Article XX(b).583  According to Canada, the EC did not discharge the burden of proof that lies with
them in the arguments they put before the Panel.
(ii) Policy to protect human health
3.477  The European Communities maintain that, as explained in their factual arguments, because
of their unique characteristics asbestos fibres and products containing them are a proven hazard for
human health. The risks linked to the use of these fibres and products are recognized, both by the
competent international organizations and by scientific studies, in particular the INSERM study,
which was the basis of the Decree.  The Decree seeks to halt the spread of this risk and thereby reduce
the number of deaths among the French population. The measure taken is the only possible one thatenables the spread of the risks due to asbestos exposure to be halted effectively . It therefore falls
under the heading of measures for the purposes described in Article XX(b).
(iii) “… necessary to protect human health and life …”
3.478  The European Communities contend that the review in the light of Article XX cannot be
allowed to undermine the health protection goal set by the Member concerned. Its sole purpose must
be to assess whether the trade measure adopted is actually “necessary” to attain that goal.  The Panel
report on United States - Gasoline  introduced the GATT 1947 rule on the test of necessity into the
GATT 1994. The Panel noted specifically:
“… the term ‘necessary’ had been interpreted in the context of Article XX(d) by the panel in the
Section 337  case which had stated that: a contracting party cannot justify a measure inconsistent with
another GATT provision as ‘necessary’ in terms of Article XX(d) if an alternative measure which itcould reasonably be expected to employ and which is not inconsistent with other GATT provisions isavailable to it. By the same token, in cases where a measure consistent with other GATT provisions isnot reasonably available, a contracting party is bound  to use, among the measures reasonably available
to it, that which entails the least degree of inconsistency with other GATT provisions.”
584 [italics in the
original]
                                                     
582 See notably Who’s Afraid of the WTO?: Address by Sir Leon Brittan to the EPS Consumer Forum
Intergroup , Strasbourg, 10 February 1999, available on-line: DG I, European Commission
>http://europa.eu.int/comm/dg01/1002slb.htm > (access date: 15 May 1999). See also Message of the
European Community to the World Trade Organization , High Level Symposium on Trade and the Environment,
Geneva, 15-16 March 1999 available on-line: DG I, European Commission <
http://europa.eu.int/comm/dg01/wtohlsf.htm > (access date: 15 May 1999) where Sir Leon  Brittan states that
“The principle does not mean [...] that a zero risk option should be pursued.”  See finally, on-line:  Green issues
must be at the heart of the WTO , says Brittan , European Commission,
<http://www.eubusiness.com/approximately/990315co. htm> (access date: 15 May 1999):  “I accept the
legitimacy of the concept of precaution in the field of  environment and health. However, there are dangers in
allowing a general, open-ended precautionary principle without defining what it means and in whatcircumstances it might be used.”
583 According to Canada, it is well established that the burden of proof lies with the EC. See
United States – Gasoline , Reports of the Appellate Body and the Panel, adopted on 20 May 1996,
WT/DS2/AB/R and WT/DS2/9 p.22 and paras.6.20, 6.31 and 6.35; Canada – Administration of the Foreign
Investment Review Act , adopted on 7 February 1984, BISD 30S/140, and United States – Section 337 of the
Tariff Act of 1930 , adopted on 7 November 1989, BISD 36S/345.
584 United States – Gasoline , Appellate Body Report and Panel Report, adopted on 20 May 1996,
WT/DS2/9, para.6.24.WT/DS135/R
Page 176
3.479  The EC note that Panel report on Thailand - Cigarettes  followed the same line of reasoning
when reviewing a measure in the context of Article XX(b). This Panel saw no reason not to follow the
same interpretation of “necessary” for Article XX(b) as for Article XX(d), stating that:
“… the import restrictions imposed by Thailand co uld be considered to be ‘necessary’ in terms of
Article XX(b) only if there were no alternative measure consistent with the General Agreement, or lessinconsistent with it, which Thailand could reasonab ly be expected to employ to achieve its health
policy objectives”.585
It is this line of reasoning that should be followed in the present case in considering whether the
French Decree is “necessary” in order to attain the goal of limiting the number of deaths caused by
asbestos.  The EC will claim that:  (i) the ban is justified by the existence of risks to the health of the
population;  and (ii) the ban is the only measure that enables the objective set by the Frenchauthorities (halting the spread of the risk) to be attained.
3.480  The EC maintain that the test of necessity concerns the trade measure and not the level of
protection set by the Member.  They recall that the purpose of Article XX(b) is not to call into
question the level of protection that a Member considers appropriate for its population.  The fact that aMember is free to decide what level of protection it considers appropriate in order to safeguard the
health of its population was firmly spelled out in the Panel Report on United States - Restrictions on
Imports of Tuna
586, which stated that:
“The Panel further noted that Article XX(b) allows each contracting party to set its human […] health
standards. The conditions set out in Article XX(b) which limit resort to  this exception [...] refer to the
trade measure requiring justification under Article XX(b), not however to the life or health standardchosen by the contracting party. The Panel recalled the finding of a previous panel that this paragraphof Article XX was intended to allow contracti ng parties to impose trade restrictive measures
inconsistent with the General Agreement to pursue overriding public policy goals to the extent that
such inconsistencies were unavoidable .”
 587
3.481  The EC point out that this principle was first established under the GATT 1994 in
United States - Gasoline , when the Panel stated that:
“… it was not the necessity of the policy goal that was to be examined, but whether or not it was
necessary that imported gasoline be effectively prevented from benefitting from as favourable salesconditions as were afforded by an individual baseline tied to the producer of a product.  It was the taskof the Panel to address whether these inconsistent measures were necessary to achieve the policy goalunder Article XX(b).  It was therefore not the task  of the Panel to examine the necessity of the
environmental objectives of the Gasoline Rule …”
588
3.482  The EC emphasize that there can be no questioning the right of the French authorities to decide
the level of protection they wish to offer their population.  According to the EC, this means that
in this case the French authorities are free to choose to halt the spread of the risks due to
exposure to asbestos, in particular for people who are occasionally and often unknowingly
exposed to asbestos. The sole purpose of Article XX(b) is to consider whether the Decree is
“necessary” as a regulatory option.  The EC state that the so-called “safe” use advocated by
                                                     
585  Thailand - Cigarettes , adopted on 7 November 1990, BISD 37S/200, para.75.
586 United States - Restrictions on Imports of Tuna , circulated on 3 September 1991, not adopted,
BISD 39S/155, para.5.27.
587 The EC note that the Panel report on United States - Restrictions on Imports of Tuna refers to the
Panel report on Thailand – Cigarettes,  adopted on 7 November 1990, BISD 37S/200, paras.73 and 74.
588 United States – Gasoline , Appellate Body Report and Panel Report, adopted on 20 May 1996,
WT/DS2/9, para.6.22.WT/DS135/R
Page 177
Canada does not allow the objective of protecting human health, set by France, to be attained.
Canada is thus setting trading interests above the legitimate goal of human health protection.
The Panel Report on Thailand - Cigarettes  states that:  “this provision [Article XX(b)] clearly
allowed contracting parties to give priority to human health over trade liberalization”.589
3.483  The EC claim that the Decree constitutes the only adequate measure for the intended purpose.
As was indicated in their factual arguments, the EC consider that the Decree pursues the realistic and
“reasonable” goal of halting the spread of the risk due to any kind of exposure to asbestos, especially
the risk due to occasional and often unwitting exposure.  The EC maintain that the Decree is justified
by the existence of risks to human health.  Canada wrongly argues that asbestos and asbestos-
containing products pose “no detectable risk” to health.  In the EC’s view, this claim relies on the
contention that the risk due to levels of exposure in the atmosphere - on which Canada bases its entiresubmission - is comparable to the risks from the occa sional but often very high levels of exposure that
may be faced by a substantial proportion of a country’s population.  Canada  seems to suggest that the
dangers of inhaling asbestos only concern workers engaged in the extraction and processing of
asbestos, in other words “primary users”, whose number in Quebec is around 1,700.  However, far
from affecting only those involved in asbestos extraction and processing, the danger of inhalingasbestos at levels above the minimum threshold (0.1 fibre/ml) primarily concerns users of asbestos or
asbestos-containing products, in other words “secondary users”, whether occupational (workers in the
textile, building, automobile industries, for example), para-occupational (servicing, maintenance), or
domestic (such as do-it-yourself) users. In France, there are millions of such secondary users.  Several
hundred thousand daily users and several million occasional users thus come into contact with aproduct which, in 1977, was classed by the WHO as a proven carcinogen for humans (category I) and
for which there is, according to the 1998 WHO report, no threshold of harmlessness.  The EC note
that Canada does not fully discuss the occupational risks and completely ignores the para-
occupational and domestic risks, although these account for the vast majority of those who suffer
exposure.
3.484  The EC maintain that, even  in production and processing, which in principle are easier to
monitor, there are limits to the so-called “safe” use of asbestos. The “controlled” use of asbestos does
not halt the spread of the risks.  The 1996 study by the British HSE found a substantially higher than
normal incidence of deaths due to mesothelioma among workers entering the asbestos production and
processing industries after 1969, in other words even after the United Kingdom had introduced “safe”
use.
3.485  The EC also contend that not only is so-called “safe” use unable to halt the spread of risks
from exposure to asbestos in production and processing – where the number of people involved is
fairly limited and, in principle, easy to manage and control – but it is completely ineffective in cases
of occasional exposure to asbestos.  Indeed, the principle of “safe” use cannot be applied to the risks
affecting a wide range of jobs involving an enormous  variety of situations, especially in servicing and
maintenance. These workers may only be exposed to asbestos occasionally, but they are subject to
exposure peaks that sometimes far exceed the currently accepted dust thresholds.  A worker using a
grinder outside on corrugated asbestos-cement roofing is subject to a peak exposure of 41 fibres/ml –
410 times higher than the threshold. The EC note that a 1992 study by the Quebec CSST also shows
that the risk of mesothelioma has been steadily rising in Canada since 1967, mainly among servicingand maintenance workers. Not once does Canada quote this study.
3.486  The EC point out that the same finding is all the more true for the general population at risk,
in other words those who are exposed to inhalation of asbestos on a non-occupational basis. “do-it-
yourself enthusiasts” are a typical example of a large sector of the public subject to exposure who are
often unaware that this occasional or regular activity may expose them to a potentially fatal risk.According to the EC, Canada conveys the impression that the INSERM report did not appreciate the
                                                     
589 Thailand – Cigarettes,  adopted on 7 November 1990, BISD 37S/200, para.73.WT/DS135/R
Page 178
risks described above. Yet the INSERM report shows that it came to be realized during the 1980s and
1990s that the highest risk is no longer to workers in the asbestos industry, namely production and
processing. The report clearly states that the risk occurs mainly among those who work with materials
containing asbestos.  With regard to para-occupational and domestic exposure, the INSERM report
states:
“These are studies which concern cases of mesothelioma in subjects with no known occupational
exposure. Several case-control and cohort studies have shown the existence of cases of mesothelioma(pleural and/or peritoneal) attributed to expos ure where the source was usually either soiled work
clothing brought home by a person subject to occupational exposure or DIY activities. The levels ofexposure to asbestos evaluated in these circumstance s can be high, comparable to certain occupational
exposures .  The existence of an increased risk of mesothelioma among those exposed in para-
occupational and domestic circumstances seems clearly established .”
590
3.487  The EC indicate that the INSERM report also states:
“As far as para-occupational exposure is concerned - especially in connection with DIY activities - it is
legitimate to consider the exposure peaks as identical to those found in industrial operations of thesame nature. The main differences in the level of exposure, in terms of the dose inhaled, are in thelength of exposure, as the DIY enthusiast does not generally perform these operations as frequently as
the professional .”
591
3.488  The EC maintain that so-called “safe” use will not halt the spread of risk.  The EC note that,
in Canada’s view, “safe” or “controlled” use of asbestos is possible and that, consequently, the
prohibition is not “necessary” within the meaning of Article XX(b) of  the GATT. Canada also citesthe “negligible emissivity of chrysotile-cement products”. In support of this statement, Canada argues
that the “modern’’ uses of chrysotile fibre mean that the fibre is bound in a matrix and cannot be
released into the environment.  The EC point out that what Canada describes as an innovation is
nothing of the kind.  For 40 years, the manufacture of asbestos-cement has involved “encapsulating”
asbestos in cement (10 per cent asbestos fibres in 90 per cent cement). The EC indicate that, byreferring to what it calls “modern” usage or even “modern” products, Canada is misleading the Panel
by seeking to promote a “clean” image of chrysotil e asbestos, although the name, while less ominous-
sounding than amphibole asbestos, cannot hide the fact that is still classed by WHO in “category I”
along with other products that are proven carcinog ens for humans.  The Panel should know that such
“encapsulation” cannot be guaranteed to make asbestos-cement, for example, harmless. In fact, oncethe use of asbestos-cement is permitted, its use can no longer be controlled. Inevitably asbestos-
cement, whether in an occupational, para-occupational or domestic context, will be worked in various
ways – for instance by cutting, sanding, crushing or sawing. These operations will release large
numbers of carcinogenic fibres in the form of dust.  Consequently, the EC assert that the “modern” use
of chrysotile asbestos to which Canada likes to refer is illusory and merely serves to mask the serious
risks involved in the use of asbestos-cement.
3.489  The EC maintain that “safe” use is incapabl e of halting the spread of the risk due to
occasional and often unwitting exposure to asbestos, because instituting the kind of tight constraints
that are feasible for a small and “targeted” population - primary users - is wholly unrealistic for the
general population.  How could such use be effectively ensured for the hundreds of thousands of
people exposed every day in sectors where there is little control in terms of health, such as the
building industry, where at least 25 per cent of me sothelioma cases in France occur? Not to mention
the millions of do-it-yourself enthusiasts subject to occasional and often unwitting inhalation of
asbestos when performing quite ordinary operations su ch as cutting, for instance.  The EC note that,
as regards practical means of ensuring the effectiveness of “safe” use, Canada stated during
consultations that there was no risk of asbestos fibres being released through cutting or sawing
                                                     
590 INSERM report, p.401.
591 Id., p.388.WT/DS135/R
Page 179
asbestos-containing products as they were supplied “pre-cut”. Canada also refers to an ISO standard
issued more than 15 years ago, in 1984. The EC emphasize that, although the standard may have
represented a major step forward at the time as compared with the earlier arrangements, it is not
sufficient to guarantee an adequate level of protection, given the health objective of an exposure
threshold of 0.1 fibre/ml that is recognized by many countries. The EC note that Canada states that“the cutting of roofing sheets or tiles is not a source of emission where the simple techniques laid
down in ISO-7337 are followed”. These “simple” techniques are: “the use of chains to break pipes by
means of pressure, the use of low-speed saws or saws equipped with dust extractors, and the wetting
of materials before any operation”.
3.490  The EC point out that, in the real world, not all the pieces are pre-cut. And in the real world the
thousands of people subject to occasional and unwitting inhalation of asbestos do not put on hermeticallysealed protective suits when performing quite everyday tasks.  Moreover, the use of a hand saw in
accordance with the ISO standard leaves the worker exposed to a level 30 times higher than the permitted
limit of 0.1 f/ml.  According to the EC, Canada offers no answer to the problem of how to control
operations performed further downstream in widely differing circumstances by many different people
who are often unaware that they are being exposed to asbestos.  The EC note that, once asbestos is on themarket, there is no reasonable way of controlling its use and, in particular, of controlling the everyday
operations (cutting, sawing, etc.) that many people are likely to perform on asbestos-containing products.
In fact, there is clearly no way of ensuring that “safe” use as advocated by Canada can be effectively
implemented.  According to the EC, recent texts confirm that “safe” use is not feasible and this emerges
very clearly from the 1998 WHO report, not cited by Canada, which states:
“Some asbestos containing products pose particular concern and chrysotile use in those circumstances
is not recommended. These uses include friable products with high exposure potential. Constructionmaterials are of particular concern for several reas ons. The construction industry work force is large
and measures to control asbestos are difficult to in stitute. In-place building materials may also pose risk
control to those doing alterations, maintenance and demolition. Minerals in place have the potential to
deteriorate and create exposures .”592
The EC add that, as the “safe” use of asbestos and asbestos-containing products is unable to halt the
spread of risk and anyone affected by current exposure is quite likely to seek redress in the courts at
some later stage. However, such claims for damages are notoriously hard to prove and run up against
many obstacles, especially on the legal side. There is, then, this additional social justification forrecognizing that the ban on asbestos is the only measure truly capable of halting the spread of the risk
due to exposure to asbestos. That is the path France has chosen to follow.  For the foregoing reasons,
it is obvious that “safe” use cannot be implemente d effectively and, in any event, significant risks
remain for all categories of user.
3.491  The EC note that Canada gives the impression that France has prohibited asbestos and
recommended the “indiscriminate use” of substitute products, reinforcing Canada’s view that the
measure is not necessary. This claim ignores the purpose of the French rules.  Far from
recommending the use of specific substitute products, the Decree leaves it to businesses to replace
asbestos by whichever products or fibres they choose. The public authorities play no part in the actualchoices made by enterprises on the market.  In practice, firms will carry out technical tests with a
view to replacing asbestos products by substitute products. However, if the tests are inconclusive and
if firms can show that there are no safer substitute  products, they can apply for an exemption in order
to continue using asbestos.  Such exemptions are provided for in the Decree and are granted only after
careful scientific evaluation.  Under the terms of Article 2 of the Decree, the use of asbestos is still
permitted in exceptional cases and on a temporary basis, if there is no substitute which is capable of
performing an equivalent function and which:  (i) on the one hand, in the present state of scientificknowledge, poses a lesser occupational health risk to workers handling those materials, products or
                                                     
592 IPCS Environmental Health Criteria (203) on Chrysotile , WHO, Geneva, 1998, p.144.WT/DS135/R
Page 180
devices;  and (ii) on the other, provides all technical guarantees of safety corresponding to the use
thereof.  The EC point out that the replacement of asbestos fibres by substitute fibres is therefore
reasonable and justified.  In particular, it is grounded in the 1996 and 1998 WHO reports.  To
conclude on this issue, the EC reject Canada’s claim that the only rationale for the excessive impact of
the ban has to be the political will of the French Government to respond in spectacular fashion to thepressure it faced from public opinion.  The EC maintain that their arguments set out above show, on
the contrary, that the ban was the only appropriate solution capable of curbing the number of deaths
due to exposure to asbestos.  The foregoing shows that the Decree serves to attain the French policy
goal regarding asbestos and is compatible with the test of necessity under Article XX(b).
3.492  Canada asserts that, in order to determine whether a measure falls under Article XX(b), it
must first be examined whether the ban imposed by the Decree is “necessary” to protect human life orhealth. The only ban that the Decree adds, in practice, is the ban on chrysotile asbestos in non-friable
products.
593  The only exposures that the Decree could affect are those, if any, to chrysotile
encapsulated in high-density products.  A measure will be deemed necessary “… only if there were no
alternative measure consistent with the General Agreement, or less inconsistent with it, which [the
party] could reasonably be expected to employ to achieve its health policy objectives”.594  T h e
measure that one seeks to justify by invoking Article XX(b) must therefore involve the minimum
restriction on international trade.  Canada notes th at the EC, taking the view that France’s choice
cannot be called into question, maintain that the French authorities have the right “to decide the level
of protection they wish to offer their population … this means that in this case the French authorities
are free to choose to halt the spread of the risks due to exposure to asbestos”.  However, in order todetermine whether there is an equally effective alterna tive that is less restrictive for international trade
and that is capable of protecting human life or health just as effectively, Canada considers that the
health risk can and must be examined, regardless of what the EC say.  The failure to consider whether
in fact there is a risk would enable any country to  cite a risk - real or not - in support of any
prohibition measure.
3.493  Canada is of the opinion that the current uses of chrysotile in high-density non-friable
products do not constitute a detectable risk to human health.  The risks, which existed in the past and
which still persist today in certain cases (amphiboles and friable materials in place), are associated
with past uses of asbestos, very often amphiboles, in friable materials.  Today, high-density non-
friable chrysotile products do not pose a detectable risk.  Canada notes that the EC identify the risk as
existing both at the levels of extraction and processing and of secondary uses (textiles, construction,
maintenance and custodial work, mechanics and do-it-yourself enthusiasts).  According to Canada, theEC are clearly trying to mislead the Panel by invoking the risks of the asbestos extraction and
processing industry, even though they have already recognized that controlled use is effective here in
eliminating the risk.  DG III affirmed in April 1997: “the principle of controlled use can be accepted
in the asbestos industry”.
595  INSERM is of the same opinion:  “Given the occupational origin of
exposures to asbestos, we are beginning to observe, in a few countries which instituted strict measuresto protect workers at an early date, a stagnation in the trends of the incidence of mesothelioma.”
596
3.494  Canada asserts that the EC also show bad faith in citing the risks of building maintenance
workers (electricians, plumbers, sheet metal workers and boiler-makers, etc.) and mechanics.  The EC
                                                     
593 Canada notes that the Decree is not aimed at the use of amphiboles and the manufacture of friable
asbestos materials as these uses had already been banned in France.
594 Thailand – Cigarettes , adopted on 7 November 1990, BISD 37S/200, para. 75. See also
United States - Section 337 of  the Tariff Act of 1930, adopted on 7 November 1989, BISD 36S/345, para. 5.26.
See finally United States – Gasoline, Appellate Body Report and Panel Report, adopted on 20 May 1996,
WT/DS2/9, para.6.24.
595 European Commission (G. Lohan, DG III), European Justification of Decree No.96-1133 to the
Canadian authorities (15 April 1997) following the French notification G/TBT/Notif.97.55, p.2.
596 See INSERM report, p.182.WT/DS135/R
Page 181
do not explain that these exposures are essentially to friable materials very often containing
amphiboles of high pathogenic potential.  Canada maintains that the risk associated with current uses
of chrysotile, if any, is not detectable.  According to the data of the United States Occupational Safety
& Health Administration (OSHA), the institution of control measures lowers the average exposures of
workers handling asbestos-cement pipes to 0.00253 f/ml and of workers handling asbestos-cementsheets to 0.00727 f/ml.  The average exposure of mechanics handling friction products, is
0.00294 f/ml.
597  Canada indicates that, despite what the EC appear to believe, these hundreds of
thousands of professionals have no need to don “space suits” every morning.  Canada asserts that
controlled use is sufficient.  The use of pre-machined parts and fittings is not a far-fetched or utopian
solution.  According to OSHA:  “pre-cut, pre-tapped pipe has received tremendous marketplace
acceptance and represents a large majority of sales.  [...] This is significant because the use of pre-cut,
pre-tapped pipe may reduce or eliminate some types of field fabrication activities”.598  As a result of
pre-fabrication, pre-machining, the use of fittings and compliance with work standards, workers are
not exposed to rates of 3 f/ml.
3.495  Canada claims that the EC is wrong in stating that Canada is comparing the exposures
associated with the use of chrysotile to those of  ambient air.  However, Canada, far from using
ambient data, bases its position on data for occupational exposures under controlled use conditions toassert that there is no detectable health risk.  As for do-it-yourself enthusiasts, Canada notes that the
EC also show bad faith in failing to mention that th ese exposures are essentially attributable to friable
materials containing amphiboles.  Furthermore, they fail to mention the conclusions of the Académie
nationale de médecine  according to which “… no disease due to asbestos has been formally proven in
France outside an occupational type of exposure”.
599 Canada considers that few do-it-yourself
enthusiasts, certainly not millions, work with high -density chrysotile products.  Inasmuch as the only
risk associated with asbestos is that of the past use of amphiboles and the use of friable materials, this
risk cannot be eliminated by the Decree.  The Decree, which prohibits the contemporary uses of
chrysotile, is therefore not necessary - and even less useful - to protect human life or health from the
risks associated with past uses of asbestos. Canada therefore asserts that the ban is not “necessary” toprotect human life or health because high-density chrysotile products do not pose any detectable risk.
3.496  Canada contends that, in the event that, despite the scientific evidence submitted by Canada,
Brazil and Zimbabwe, the Panel finds that contemporary uses of chrysotile are a hazard for human
health, an examination of less trade-restrictive alternatives is necessary.  In its arguments on
controlled use, Canada has underlined the “possibility” and the effectiveness of controlled use.
Controlled use indisputably constitutes an alternative to a total ban that is significantly less restrictive
for international trade and eliminates the risk just as effectively, if any risk remains today.  It follows
from this analysis that the Decree banning current uses of chrysotile cannot fall under Article XX(b)
because it is not necessary to protect human life or health.
3.497  Canada rejects the EC’s claim that Canada is placing its trade interests ahead of the legitimate
objective of protecting human health. Canada is rather of the opinion that the EC are misusing the
objective of protecting human health to justify a measure that does not fall under the scope ofArticle XX(b).  The Decree does not fall under paragraph (b) of Article XX and is not consistent with
the introductory paragraph of Article XX.  The EC therefore cannot take advantage of the exception
provided in Article XX(b) to justif y a violation of Article XI:1 and Article III:4 of the GATT.  Lastly,
Canada refers the Panel to the arguments on the concept of necessity in Article 2.2 of the TBT
Agreement because, as it emphasized in its reply to question 33 of the Panel (see Annex II), Canada
                                                     
597 See OSHA, on-line: OSHA: < http://www.osha-slc.gov/Preamble/AmendAsb_data/
ASBESTOS_AB4.html>  (access date: 20  June 1999), in Tables 5 and 6.
598 Id.
599 See Académie nationale de médecine  (Etienne Fournier), Amiante et protection de la population
exposée à l’inhalation de fibres d’amiante dans les bâtiments publics et privés , Bulletin de l’ Académie
nationale de médecine,  vol.180, no.4, April 1996 .WT/DS135/R
Page 182
contends that the criterion of necessity in Article 2.2 of the TBT Agreement is in many respects
similar to that in Article XX(b) of the GATT.
3.498  The European Communities  refer to the arguments put forward in connection with
Article 2.2 of the TBT Agreement (see paragraphs 3.353-3.356 above), which also apply in the
context of Article XX(b) of the GATT.
(iv) Preamble to Article XX
3.499  The European Communities recall that the Appellate Body stated that the “chapeau” of
Article XX applies to: “… the manner in which that measure is applied” and that “If those exceptions
[the exceptions under Article XX] are not to be a bused or misused, … the particular exceptions must
be applied reasonably…”.600  The Appellate Body also noted that:
“The chapeau of Article XX is, in fact, but one expression of the principle of good faith. […] One
application of this general principle, the application widely known as the doctrine of abus de droit ,
prohibits the abusive exercise of a state's rights and enjoins that whenever the assertion of a right‘impinges on the field covered by [a] treaty obligation, it must be exercised bona fide, that is to say,
reasonably .”601
Finally, the Appellate Body suggested that Panels should endeavour “to inquire into how the measure
at stake was being applied in such a manner  as to constitute abuse or misuse of a given kind of
exception ”.602  [italics in the original]  The EC maintain  that in the present case there is nothing to
support the contention that France acted “in bad faith” or in an “unreasonable”, “improper” or
“abusive” manner in exercising its right under Article XX(b) of the GATT.
3.500  The EC maintain that the Decree is “reasonable”.  They note that, as has been recognized by
the WHO since 1977, asbestos is a product that is a proven carcinogen for humans. It has causedthousands of deaths. So-called “safe” uses of the product cannot prevent deaths from mesothelioma
among “primary users” (extraction and processing industries) and cannot feasibly be implemented for
all para-occupational and domestic uses, which involve millions of people. Depending on their age,
between 18 and 25 per cent of the male population in France have been exposed to asbestos at least
once in the course of their working lives. Building industry trades account for a quarter ofmesothelioma cases.  In view of these figures, France considered that the only measure capable of
halting the spread of the risk was the outright ban on the use of asbestos on French territory.  The EC
contend that, despite Canada’s claims, France did not act on impulse. The French decision is based on
a reliable scientific report that involved a critical and careful review of the most recent world
scientific literature, proving the risks entailed by the use of asbestos, in particular for those subject toexposure in a para-occupational or domestic context. The report, like the Decree, was adopted after
“mature reflection”.
3.501  The EC claim that the Decree is not applied as a means of imposing arbitrary or unjustifiable
discrimination between countries where the same conditions prevail.  The prohibition covers products
originating in any country (whether domestic or foreign), not only in Canada. The Panel report onUnited States - Imports of Certain Automotive Spring Assemblies , which dealt with a similar case,
stated the following:
“The Panel noted that the exclusion order was directed against imports of certain automotive spring
assemblies produced in violation of a valid United States patent from all foreign sources, and not just
                                                     
600 United States – Gasoline , Appellate Body Report and Panel Report, adopted on 20 May 1996,
WT/DS2/9, pp.22 and 23.
601 United States – Shrimps, Report of the Appellate Body, adopted on 6 November  1998,
WT/DS58/AB/R, para.158.
602 Id., para.80.WT/DS135/R
Page 183
from Canada. It found, therefore, that the exclusion order was ‘not applied in a manner which would
constitute a means of arbitrary or unjustifiable  discrimination against countries where the same
conditions prevail’ .”603
3.502  The Appellate Body Report on United States - Shrimps  elaborated on this idea, noting that:
“In order for a measure to be applied in a manner which would constitute ‘arbitrary or unjustifiable
discrimination between countries where the same conditions prevail’, three elements must exist.  First,the application of the measure must result in discrimination .  As we stated in United States – Gasoline ,
the nature and quality of this discrimination is different from the discrimination in the treatment of
products which was already found to be inconsistent with one of the substantive obligations of GATT
1994, such as Articles I, III or XI. Second, the discrimination must be arbitrary  or unjustifiable  in
character.  We will examine this element of arbitrariness  or unjustifiability  in detail below.  Third, this
discrimination must occur between countries where the same conditions prevail . In United States –
Gasoline , we accepted the assumption of the participants in  that appeal that such discrimination could
occur not only between different exporting Members, but also  between exporting Members and the
importing Member concerned .”
604 [italics in the original]
3.503  The EC point out that, in this case, the application of the French measure does not involve any
discrimination605 between countries, including France, where the same conditions prevail. All
countries that export asbestos or asbestos-containing products, including France (which used to haveits own asbestos industry), are covered by the prohibition or by the exemptions, with no difference in
treatment.  As this does not meet the definition of discrimination laid down by the Appellate Body,
the EC consider that the Decree is not being applied in such a manner as to constitute a means of
arbitrary or unjustifiable discrimination between countries where the same conditions prevail.
3.504  Lastly, the EC maintain that the Decree does not constitute a disguised restriction on
international trade.  On this question, the Appellate Body noted in its report on United States -
Gasoline  that:
“… the kinds of considerations pertinent in decidi ng whether the application of a particular measure
amounts to ‘arbitrary or unjustifiable discrimination’ may also be taken into account in determining the
presence of a ‘disguised restriction’ on international trade. The fundamental theme is to be found in thepurpose and object of avoiding abuse or illegitimate use of the exceptions to substantive rules availablein Article XX. […] The resulting discrimination must have been foreseen, and was not merelyinadvertent or unavoidable. In the light of the foregoing, our conclusion is that the baseline
establishment rules in the Gasoline Rule, in their application, constitute ‘unjustifiable discrimination’
and a ‘disguised restriction on international trade’.”
606
3.505  The EC have already shown that the Decree is not applied in a manner which would
constitute a means of arbitrary or unjustifiable discrimination between countries where the same
conditions prevail.  This is proof enough that the Decree is not being applied in a manner which
would constitute a “disguised restriction on international trade”.  The EC emphasize in this respectthat:  (i) the restriction applies to products of any origin (including domestic origin);  (ii) the
restriction is justified on public health grounds;  (iii) the restriction was announced and published;
(iv) many other Members of the WTO also apply restrictions to these products;  and (v) the restriction
takes international standards as a base.  The EC therefore hold that the Decree cannot be considered as
                                                     
603  United States – Imports of Certain Automotive Spring Assemblies , adopted on 26 May 1983,
BISD 30S/107, para.55.
604 United States – Shrimps, Report of the Appellate Body, adopted on 6 November 1998,
WT/DS58/AB/R, para.150.
605 Canada notes that the Appellate Body has held that this concept of discrimination is different from
that already established under Articles I, III or XI of the GATT.
606 United States – Gasoline , Appellate Body Report and Panel Report, adopted on 20 May 1996,
WT/DS2/9, pp.25 and 29.WT/DS135/R
Page 184
being applied in such a way as to constitute a “dis guised restriction on international trade”. Any other
approach would imply that all international legisl ation on asbestos and asbestos-containing products
(such legislation is, in practice, always restrictive) amounts to “a disguised restriction on international
trade”.  The EC therefore maintain that they did not “abuse” or make “unreasonable” use of their right
under Article XX(b) of the GATT.
3.506  Canada claims that, in the event that the Panel finds that the Decree is nonetheless covered
by paragraph (b) of Article XX, the EC must justify it under the introductory clause of Article XX.
However, “… it does not follow from the fact that a measure falls within the terms of [a paragraph of]
Article XX that that measure also will necessarily comply with the requirements of the chapeau”.607
The introductory clause of Article XX prohibits any arbitrary or unjustifiable discrimination ordisguised restriction on international trade.  Whether a measure falls under one of these three types is
commented on by the Appellate Body: “The fundamental theme is to be found in the purpose andobject [of Article XX] of avoiding abuse or illegitimate use of the exceptions to substantive rules
available in Article XX.”
608
3.507  Canada points out that it has already claimed, in respect of Article III:4, that the Decree was
discriminatory. The Decree is arbitrary and unjustified first of all because the current uses of
chrysotile do not pose any health risk.  The ban is also arbitrary and unjustified because it does nothave a solid scientific basis.  It is arbitrary and unjustified because it takes the INSERM report as a
basis for prohibiting current applications of chrysotile, even though this study did not assess the risks
associated with modern uses of chrysotile.  The ban is also arbitrary and unjustified because it is not
motivated by the objective of protecting human life or health but rather by the desire to reassure a
panicked population.  According to Canada, even th e French Senate and National Assembly state that
the ban is “… a decision which concerns public opinion”.
609   Furthermore, the purpose of the Decree
is not to protect the population because it imposes, by its very nature, the blind use of substitute fibres
whose lower toxicity is far from proven.  What is more, the Decree fosters a false sense of security
among the “reassured” population because the public is not afraid of the risks of substitute products,
even though these risks are unknown and have not been quantified.
3.508  Canada claims that, in addition to constituting arbitrary and unjustified discrimination, the
Decree also constitutes a disguised restriction on international trade.  In order for a measure to be a
“disguised” restriction on trade, it is not necessary that it be “concealed” or “unannounced”.  The
Appellate Body excludes a narrow reading of the term “disguised restriction”:   “It is equally clear
that concealed  or unannounced  restriction or discrimination in international trade does not exhaust the
meaning of ‘disguised restriction.’. ” [italics in the original]610  Hence, the fact that the measure was
published does not prevent it from being a disguised restriction on international trade.  The ban is adisguised restriction on international trade and contrary to the introductory clause of Article XX in the
sense that, under the cover of a public health decision, the Decree favours the French national industry
of substitute products for chrysotile and products containing it.
(e) Article XXIII:1(b) of the GATT
3.509  Canada  claims that the incompatibility between the Decree and the obligations of France
pursuant to the TBT Agreement and the GATT establishes a presumption that a benefit pursuant to
Article XXIII:1(a) of the GATT 1994 and of Article 3.8 of the Understanding has been nullified or
                                                     
607 United States – Shrimps, Report of the Appellate Body, adopted on 6 November 1998,
WT/DS58/AB/R, para.149.
608 United States – Gasoline , Report of the Appellate Body, adopted on 20 May 1996, WT/DS2/AB/R,
p.25.
609 Le Déault, J.-Y. and Revol, H., L’amiante dans l’environnement de l’homme:  ses conséquences et
son avenir , (1990), 34 Ann. Occup. Hyg., 529.
610 United States – Gasoline , Report of the Appellate Body, adopted on 20 May 1996, WT/DS2/AB/R,
p.25.WT/DS135/R
Page 185
impaired.  However, in the event that the Panel were to conclude that the French measure complies
with the TBT Agreement, the application of the latter nevertheless nullifies or impairs the benefits
accruing to Canada under these Agreements, pursuant to Article XXIII:1(b) of the GATT.  Within the
framework of disputes arising from the GATT 1947, Article XXIII:1(b) was interpreted as meaning
that, even if a measure is judged to be in compliance with the provisions of the GATT, such a measuremay nevertheless be contested as nullifying or impairing benefits.  Canada points out that,
traditionally, panels under the GATT 1947 have deemed that three conditions must be met for a case
of nullification or reduction of benefits in a non-violation situation.  This reasoning was confirmed
after adoption of the WTO Agreements in the matter Japan – Measures affecting Consumer
Photographic Film and Paper .
611 These conditions are as follows:  (i) the negotiation of a tariff
concession;  (ii) the subsequent adoption of a governmental measure unfavourably disrupts conditions
of competition between the product for which the concessions were granted and the imported productthat is a like or directly competitive product;  and (iii) the adoption of the measure in question could
not reasonably have been foreseen at the time of the tariff concession negotiations.
612
3.510  Canada asserts that these three conditions are present in this case. First of all, asbestos and
many asbestos-containing products are subject to tariff concessions granted by the EC during the
Uruguay Round Negotiations.613  At that time, the EC granted initial negotiating rights to Canada for
asbestos.  Asbestos and asbestos-c ontaining products were the subject of tariff concessions by France
starting in 1947;614  they were taken up again by the European Economic Community after the
1960-1961 Tariff Conference and have been renewed until now.615  Secondly, the effect of the
Decree’s adoption has been to disrupt the competit ive relationship in the French market between, on
the one hand, chrysotile asbestos fibre and products containing it and, on the other, like andcompetitive French products.  In establishing a total ban, the Decree has destroyed this competitive
relationship and has created a monopoly for substitute fibres and products containing them. Thirdly, at
the time the tariff concessions were negotiated, Canada could not reasonably have foreseen that
France would adopt the Decree.  At the time of the negotiations on tariff concessions for asbestos,
there was no indication that France was going to abandon its policy of controlled use of asbestos andcompromise the value of its commitments by implem enting a total ban on chrysotile and any possible
use thereof.
                                                     
611 Japan – Measures affecting Consumer Photographic Film and Paper , Report of the Panel, (not
appealed), adopted on 22 April 1998, WT/DS44/R.
612 European Economic Community – Payments and Subsidies paid to Processors and Producers of
Oilseeds and Related Animal-Feed Proteins , adopted on 25 January 1990, BISD 37S/86, paras.142-154.
613 Uruguay Round of Multilateral Trade Negotiations, Legal Instruments restating the results of the
Uruguay Round of Multilateral Trade Negotiations effected in Marrakesh on 15 April 1994, volume 19,
List LXXX – European Communities.  After the 1996 binding, the numbers of the tariff items in this case,
reproduced on the list CXL – European Communities are: 2524.00.30 (initial negotiating right), 2524.00.80(initial negotiating right), 6811.10.00, 6811.20.11,  6811.20.80, 6811.30.00, 6811.90.00, 6812.10.00,
6812.20.00, 6812.30.00, 6812.40.00, 6812.50.00, 6812.60. 00, 6812.70.00, 6812.90.10, 6812.90.90, 6813.10.10,
6813.10.90, 6813.90.10, 6813.90.90.
614 General Agreement on Tariffs and Trade: Schedules of Tariff Concessions, vol. 3 (New York:
GATT 1947), pp.32 et seq ., Schedule XI – France , tariff item numbers 263, 1187A, 187B, 1188A, 1188B,
1188C, 1188D, 1188E, 1188F, 1188G, 1189.
615 See General Agreement on Tariffs and Trade: Protocol  to the General Agreement on Tariffs and
Trade Embodying Results of the 1960-61 Tariff Conference , (Geneva: 16 July 1962), Schedule XL – European
Economic Community – Part I: tariff headings 25.24, 68.13, 68.14.WT/DS135/R
Page 186
3.511  Canada claims that, at the time of the negotiations on the WTO Agreements, it could in no
way foresee that France was going to adopt a measur e with regard to chrysotile that is obviously
incompatible with the treatment it grants to other potentially hazardous products. Other raw materials,
such as lead and copper, are potentially hazardous but are not banned. Certain uses of these products
are indeed banned, restricted or subject to regulation.  Canada was reasonably entitled to expect asimilar approach to chrysotile on the part of France.  The excessiveness of the French measure could
not have been foreseen by Canada.  The excess of the measure can be seen in the treatment given to
chrysotile-cement products to be withdrawn from the market.  As of 1 January 1997, stocks of
chrysotile-cement products became “waste” to be handled and stored according to strict orders
stipulated in two other measures adopted by France.
616  One of these measures is particularly
revealing of the incompatibility and the excessive nature of the overall French regulatory approach to
chrysotile. Indeed, a section of the Note relative aux conséquences de l’interdiction de l’amiante et à
l’élimination des déchets  [Note on the effects of the ban on asbestos and the elimination of waste]
states that “for waste containing bonded asbestos […] if the waste is composed of asbestos combined
only with inert matter, it may be el iminated in accordance with the circular of 9 January 1997 on the
elimination of asbestos-cement waste”.617  If France recognizes that products containing bonded
asbestos are inert, Canada cannot understand why it had to ban chrysotile and dense productscontaining it.  Thus, a benefit accruing to Canada under the WTO Agreement was nullified or
impaired.  This benefit was seriously nullified or impaired, i.e. more than de minimis .  For the
foregoing reasons, the Decree has a negative effect on the objective of liberalizing international trade
in the WTO Agreement, in violation of Article XXIII:1(b).
618
3.512  The European Communities  indicate that, in order to determine whether a measure nullifies
or impairs a benefit enjoyed by a Member by virtue of the General Agreement, in the context of
Article XXIII:1(b) of the GATT, it must be shown tha t:  (i) the Member enjoys a benefit accruing to it
under the GATT;  and (ii) the measure in question nullifies or impairs that benefit.  To conclude that a
measure does indeed nullify or impair that benefit, the complainant must establish that:  (i) the
measure could not reasonably have been anticipated by that Member when the concession wasnegotiated;  and (ii) the measure upsets the competitive relationship between domestic and imported
products that prevailed before the measure was adopted.  By way of a preliminary remark, the EC
stress that the burden of proof for the application of Article XXIII:1(b) is particularly onerous as a
result of Article 26:1(a) of the Understanding, which states that:  “the complaining party shall present
a detailed justification in support of any complaint relating to a measure which does not conflict with
the relevant covered agreement”.  This provision essentially reflects the practice established under the
GATT 1947. A forceful reminder of the weight of the burden of proof was also given under theGATT 1994 in the Panel Report on Japan - Measures affecting Consumer Photographic Film and
Paper , which found that, in this context, it was the duty of the complainant to provide “a detailed
justification for its claim in order to establish a presumption that what is claimed is true”.
619  In the
                                                     
616 Circulaire no. 97-15 relative à l’élimination des déchets d’amiante-ciment générés lors des travaux
de réhabilitation et de démolition du bâtiment et des trav aux publics, des produits d’amiante-ciment retirés de
la vente et provenant des industries de fabrication d’amiante-ciment et des points de vente ainsi que tous autresstocks , dated 9 January 1997; and Note DPPR/SDPD/BGTD/LT/LT No 97-320 relative aux conséquences de
l’interdiction de l’amiante et à l’élimination des déchets , dated 12 March 1997.
617 Note DPPR/SDPD/BGTD/LT/LT No. 97-320 of 12 March 1997, Section III.
618 Canada notes that Article 26.1 of the Understanding provides that: “Where the provisions of
Article XXIII:1(b) of the GATT 1994 are applicable to a covered agreement, a panel… may only make rulings
and recommendations where a party to the dispute consider s that any benefit accruing to it directly or indirectly
under the relevant covered agreement is being nullified or impaired or the attainment of any objective of thatAgreement is being impeded as a result of the application by a Member of any measure, whether or not it
conflicts with the provisions of that Agreement.” The provisions of Article XXIII:1(b) apply to WTO
Agreements (because the General Agreement is an integral part of the WTO Agreements under Article II:2 ofthe WTO Agreement) and to the General Agreement.
619 Japan – Measures affecting Consumer Photographic Film and Paper , Report of the Panel, (not
appealed), adopted on 22 April 1998, WT/DS44/R, para.10.32.WT/DS135/R
Page 187
case at issue, the EC consider that the very brief explanations supplied by Canada are insufficient to
discharge the burden of proof incumbent upon it. In any event, the EC claim that Canada's submission
under Article XXIII:1(b) is unjustified for the following reasons:  (i) Canada could reasonably have
anticipated the French measure when the concession was negotiated under the Uruguay Round;  and
(ii) the French measure has not upset the competitive relationship between domestic and importedproducts that prevailed before the measure was adopted.
3.513  Before considering the conditions set out above, the EC point to the observations by the Panel
on Japan - Measures affecting Consumer Photographic Film and Paper , namely, that the Article in
question has been invoked only eight times during the fifty-year existence of the GATT 1947 and that
“… most of the cases of non-violation nullification or impairment have dealt with situations where a
GATT-consistent domestic subsidy for the producer of a product has been introduced or modified
following the grant of a tariff concession on that product”.
620  While acknowledging that
Article XXIII:1(b) could be applied in contexts other than subsidies, the Panel stated that it “should be
approached with caution and treated as an exceptional concept”.621
3.514  The EC maintain that Canada fails to demonstrate how the French measure could not
reasonably have been anticipated.  The Panel on Japan - Measures affecting Consumer Photographic
Film and Paper  made the following comments regarding this condition:
“The second required element which must be considered  to establish a case of non-violation nullification
or impairment under Article XXIII:1(b) is the existence of a benefit accruing to a WTO Member under
the relevant agreement (in this case, GATT 1994). In all but one of the past GATT cases dealing with
Article XXIII:1(b) claims, the claimed benefit has been that of legitimate expectations of improvedmarket-access opportunities arising out of relevant tariff concessions. This same set of GATT precedentssuggests that for expectations to be legitimate, they must take into account all measures of the partymaking the concession that could have been reasonably anticipated at the time of the concession ... Ofcourse, as with the first element (application of a measure), the complaining party has the burden of
demonstrating the ‘benefit accruing’. […] If the measures were anticipated, a Member could not have had
a legitimate expectation of improved market access to the extent of the impairment caused by these
measures .”
622
3.515  The EC contend that it is important first of all to note that there can be no “legitimate
expectations” in the case of a measure that is taken to protect human health and can therefore be
justified, particularly with regard to Article XX(b) of the GATT or Article 2.2 of the TBT Agreement.
While a Member may have “legitimate expectations” in connection with a purely commercial
measure, no such expectations can be pleaded when it comes to health protection matters. Theprotection of human health is a fundamental duty of any government and it cannot be compromised or
restricted by the concept of non-violation.
623  The EC contend that, by their very nature, science and
scientific evidence are constantly evolving and a restriction on the right of Members to protect the
health of their people, based on Canada's arguments, would run counter to the scope, aims and
structure of the GATT as a whole.  For example, a Member might have legitimate expectations of
computer markets opening up, but it cannot have le gitimate expectations of improved access to the
market for a carcinogenic product.  On the contrary, if there is any expectation, it is that access to thatmarket may be barred or restricted rather than improved.  In the EC’s view, Canada has been unable
to prove that the measure in question could not have been anticipated at the time when the concession
                                                     
620 Id., para.10.38.
621 Id., para.10.36.
622 Id., paras.10.61 and 10.76.
623 The EC note that Article XX states that, “Subject to the requirement that such measures are not
applied in a manner which would constitute a means of  arbitrary or unjustifiable discrimination between
countries where the same conditions prevail, or a disgui sed restriction on international trade, nothing in this
Agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures:...(b) necessary to protect human, animal or plant life or health...”WT/DS135/R
Page 188
was negotiated. Canada had good reason to suppose that France would adopt rules prohibiting
asbestos.
3.516  The EC point out that, since 1977, asbestos fibres, in particular chrysotile, have been
classified as category I carcinogenic products by the WHO.  The EC claim that, when the tariff
negotiations took place, Canada knew that there wa s a danger that the product under negotiation could
at any time be prohibited by Members of the WTO, particularly if non-hazardous or less hazardous
substitutes could be used.  In 1986, ILO Convention 162 on asbestos stated that national legislation
should provide wherever possible for the “replacement of asbestos or of certain types of asbestos or
products containing asbestos by other materials or products or the use of alternative technology,
scientifically evaluated by the competent authority as harmless or less harmful …”.624
3.517  The EC maintain that the scientifically proven carcinogenicity of chrysotile and the
impossibility of keeping the risk under control in all cases led the French Government to halt anyspread of the risk by applying the principle recommended by the WHO and the ILO - and provided
for by the European Union - with regard to carcinogenic products, namely that they be replaced by
less hazardous products wherever technically possible.  Since 1990, the European Community has
provided for the replacement of asbestos under Council Directive 90/394/EEC of 28 June 1990 on the
protection of workers from the risks related to e xposure to carcinogens at work (Sixth individual
Directive within the meaning of Article 16 (1) of  Directive 89/391/EEC), Official Journal L 196 of
26 July 1990.  Under this Directive, the European Community recommends a framework for the
health and safety of workers, including the principle of replacing a dangerous substance or process
with a non-dangerous or less dangerous substance or process, where they exist.  Regarding
carcinogens, the principle is set out in the Directive on carcinogens, which provides explicitly forcarcinogens to be replaced by less dangerous substances, preparations or processes where technically
possible.
625 In 1983, WTO Members began to ban the use of asbestos, including chrysotile. The EC
consider that the ban imposed by France could have been anticipated by Canada.  Many WTO
Members, including Canada itself, have banned amphibole asbestos for many years.  In the EC’s
view, this means that Canada considered that it was impossible to envisage a “safe” use of amphiboleasbestos.  Based on this and the fact that chrysotile asbestos is classified in the same category of
products proven to be carcinogenic for humans as amphibole forms of asbestos, Canada should have
expected that several Members, including France, would take steps to ban chrysotile asbestos.
Moreover, the EC indicate that France is not the first European Union country to have banned
chrysotile fibre. Austria banned chrysotile in 1990, followed by Finland and Italy in 1992, and
Germany in 1993. As several European Union countries have banned chrysotile asbestos, Canada
could easily have anticipated that other European  Union countries, including France, would follow
suit.
3.518  The EC maintain that Canada's argument that it could not legitimately have anticipated the
ban imposed by the Decree because France did not simultaneously ban other potentially dangerous
substances (such as lead and copper) is misleading. There are no provisions in the GATT or the TBT
Agreement requiring Members to be so consistent in applying health measures against substances thatpose a carcinogenic risk for human health.  The EC consider that accepting Canada's argument would
be equivalent to preventing Members entirely from taking measures to protect human health on their
territory.  In the EC’s view, Canada can no longer claim a legitimate expectation at the time of the
                                                     
624 ILO, Convention concerning Safety in the Use of Asbestos (Convention 162),  adopted on
24 June 1996, International Labour Conference, Geneva, Article 10(a).
625 Council Directive 90/394/EEC of 28 June 1990 on the protection of workers from the risks related to
exposure to carcinogens at work (Sixth individual  Directive within the meaning of Article 16 (1) of
Directive 89/391/EEC) Official Journal L 196, 26.7.90, p.1. Council Directive 97/42/EC of 27 June 1997amending for the first time Directive 90/394/EEC on the protection of workers from the risks related to exposureto carcinogens at work (Sixth individual Di rective within the meaning of Article 16 (1) of
Directive 89/391/EEC) Official Journal L 179, 8.7.1997, p.4.WT/DS135/R
Page 189
concession because such a legitimate expectation would have to concern “improved” market-access
opportunities.  It is clear that a product which entails risks for human health cannot legitimately offer
“improved” market-access opportunities. Moreover, the facts clearly show that in industrialized
countries the trend in asbestos fibre imports is going down rather than up. The EC maintain that
Canada could not therefore have had a legitimate expectation that the opportunities for access to themarket in chrysotile fibres would “improve”.  It also appears that the tariff concession invoked by
Canada actually dates from at least as far back as the 1960-1961 negotiating round. The Panel on
Japan - Measures affecting Consumer Photographic Film and Paper  pointed out that “… the
establishment of a case based on expectations from rounds concluded 18 or 30 years ago may be
difficult” .
626  In the case at issue, the EC maintain that Canada must give detailed reasons as to why it
could legitimately have expected that France would not adopt measures restricting or eliminating the
use of any asbestos product after the Uruguay Round negotiations, given the growing scientificevidence that all types of asbestos and asbestos-containing products were carcinogenic to humans.
3.519  The EC claim that Canada fails to demonstrate how the French measure upsets the
competitive relationship between asbestos and fibrous or non-fibrous substitute products.  As the EC
maintained in the section relating to Article III of the GATT, there is no “similarity” between asbestos
and fibrous or non-fibrous substitute products.  Because of their different characteristics there can beno distortion of competition between these products.  Asbestos and asbestos-containing products (and
asbestos-cement in particular) are replaced by many fibrous or non-fibrous products (plaster, ductile
iron, etc …).  Finally, Canada's exports were essentially, if not exclusively, of raw chrysotile asbestos,
which is like only to amphibole asbestos.  The EC note that, on this subject, the Panel on  Japan -
Measures affecting Consumer Photographic Film and Paper  found that:
“… it must be demonstrated that the competitive position of the imported products subject to and
benefitting from a relevant market access (tariff) concession is being upset by  (‘nullified or impaired ...
as the result of’) the application of a measure not r easonably anticipated... Thus, in this case, it is up to
the United States to prove that the governmental measures that it cites have upset the competitiverelationship between domestic and imported photographic film and paper in Japan to the  detriment of
imports. In other words, the United States must show a clear correlation between the measures and the
adverse effect on the relevant competitive relationships .”627 [italics in the original]
3.520  The EC contend that Canada has in no way established such a clear correlation. Furthermore,
the conditions of competition on the French market have not been upset. On this point, Canada claims
that “the effect of the Decree’s adoption has been to disrupt the competitive relationship in the Frenchmarket between, on the one hand, chrysotile asbestos fibre and products containing it and, on the
other, like and competitive French products”.  On this  issue, the EC point to the findings of the Panel
on Japan - Measures affecting Consumer Photographic Film and Paper :  “in an Article XXIII:1(b)
case the issue is not whether equality of competitive conditions exists but whether the relative
conditions of competition which existed between domestic and foreign products as a consequence ofthe relevant tariff concessions have been upset”.
628
3.521  The EC claim that the products for which the competitive conditions must be examined are
those covered by the tariff concession.  If a tariff concession is granted for asbestos, the competitive
conditions to be examined are those concerning Canadian asbestos and French asbestos. It is therefore
irrelevant for Canada to try to compare chrysotile with French substitute products because suchproducts cannot be considered in terms of the same relevant tariff concession.  In conclusion, the EC
consider that Canada has not provided detailed explanations to justify its claim that the Decree
nullified a tariff concession which, in its view, it could legitimately have expected under the GATT.
                                                     
626 Japan – Measures affecting Consumer Photographic Film and Paper , report of the Panel, (not
appealed), adopted on 22 April 1998, WT/DS44/R, para.10.70.
627 Id., para.10.82.
628 Id., para.10.86.WT/DS135/R
Page 190
3.522  Canada maintains all its arguments concerning the incompatibility of the French measure
with Article XXIII:1(b) of the GATT.  It contends that it could not have anticipated, at the time of the
most recent tariff negotiations, that France would adopt such a drastic and unreasonable measure as a
ban on all forms of asbestos and products containing it.  Canada maintains that it could not have
anticipated, at the time of the negotiations, that France was going to nullify and impair in this mannerits tariff concession concerning chrysotile and products containing it.  Canada maintains that, when a
complainant proves that it enjoys a tariff concession and the respondent subsequently adopts a
measure that affects the value of this concession, the complainant benefits from the presumption that
it could not reasonably anticipate that this concession would be nullified or otherwise impaired by this
measure.  In such circumstances, it is up to the respondent to prove that the complainant should have
anticipated the possibility that such a measure would be adopted.
629   In Canada’s opinion, the EC
have not proved this.  Although Canada recognizes France’s right to take action in order to protecthuman health and the health of workers, Canada could not reasonably have anticipated that France
was going to adopt a measure totally prohibiting asbestos, without distinction as to the types of fibre
or their use. This measure did not exist at the time of the negotiations and there was nothing to
suggest that France was going to adopt such a radical measure as a ban on chrysotile and asbestos-
cement.  The lack of consistency in the nature of the regulatory intervention, as well as its severitycompared to the type of regulatory intervention then in place in France and still in effect now
concerning products equally harmful, if not more harmful, than chrysotile, mean that it would have
been impossible for Canada reasonably to anticipate that France was going to act in the manner that it
did.
3.523  Canada claims that, at the time of the most recent tariff negotiations, conducted by the EC
during the Uruguay Round, France maintained a contro lled use approach for chrysotile asbestos and
there was nothing to suggest at the time that it was going to ban the product suddenly without any
scientific reason to justify this maximum increase in the restrictive effects on trade in the products
concerned.  Similarly, at the time these concessions were negotiated, many hazardous products were,
and still remain today subject to a controlled use approach whereby certain uses of these productscontinue to be permitted.  Canada therefore had every reason to believe that the controlled use
approach was going to continue to be preferred for these products, including chrysotile asbestos.
Canada had every reason to believe that the adoption of such a radical measure as a total ban on
asbestos was not going to be adopted.  In light of the regulatory approach advocated by France up to
that point, the extreme nature of such a measure made it unforeseeable.  As Canada has already
claimed, there is nothing exceptional in the case of chrysotile and products containing it in terms of
risk management, if there is any risk.  Other pr oducts, which moreover have been proven to be
hazardous, are the subject of a controlled use policy.  Furthermore, the effect of the French prohibition
is to impose the replacement of chrysotile by a range of substitute products of domestic or foreign
origin, even though they are suspected of being carcinogenic by the French authority which is
presented as being the source of the ban on chrysotile, namely INSERM.  In these circumstances,
Canada’s reasonable expectations were that the competitive position of imported chrysotile in Franceand of products containing it would not be affected by a measure such as a total ban, without
distinction as to the types of fibre or their use, in favour of substitute fibres of domestic or other
origin.  Canada’s reasonable expect ations were also that this type of measure would not be adopted
unless there were exceptional circumstances, which is certainly not the case with respect to the
circumstances surrounding the use of chrysotile.  There have been no new scientific developmentsthat have changed anything in terms of managing the risks or the effects associated with chrysotile.
Finally, Canada’s reasonable expectations were that such a ban would not be adopted in favour of
substitute products unless these products had been subjected to a rigorous process of examination to
                                                     
629 See India – Patent Protection for Pharmaceutical and Agricultural Chemical Products , Report of
the Appellate Body adopted on 16 January 1998, WT/DS50/1/AB/R, para. 41;  Japan – Measures Affecting
Consumer Photographic Film and Paper,  Report of the Panel (not appealed), adopted on 22 April 1998,
WT/DS44/R, para.10.79.WT/DS135/R
Page 191
prove that their use satisfies the public health objectives invoked by France.  The evidence submitted
by Canada in this respect shows very clearly that the substitutes do not meet this requirement.
3.524  Canada maintains that Article XXIII:1(b) of the GATT is applicable to the present case
because the Decree radically alters the competitive conditions between chrysotile asbestos exported
by Canada and substitute products.  As a result of the Decree, the latter enjoy a decisive advantageover Canadian chrysotile asbestos, which can no longer be exported to France.  Canada rejects the
EC’s claim that an examination of the impact of the Decree’s effect on competitive conditions must
be limited to Canadian asbestos and French asbestos, and exclude any examination of the competitive
relationship between Canadian chrysotile asbestos and substitute products of French or other origin.
Canada points out that this European claim is contradicted by the Panel decisions in Treatment by
Germany of Imports of Sardines
630 as well as in Australian Subsidy on Ammonium Sulphate .631  In the
first case, the Panel sided with Norway on the basis of Article XXIII:1(b) of the GATT 1947, rulingthat a German measure which resulted in a reduction of the customs tariff on sardines nullified or
impaired a benefit accruing to Norway under a tariff concession relating to sprats and herrings.  The
Panel invoked Article XXIII:1(b) of the GATT 1947 because it considered that the German measure
upset the competitive relationship between these species of fish.  It should be noted that sprats and
herrings, on the one hand, and sardines, on the other, were treated separately from a tariff standpointand they were not considered by the Panel as like products for the purposes of Article I of the
GATT 1947.  Similarly, in Australian Subsidy on Ammonium Sulphate , the Panel concluded that
benefits had been impaired or nullified within the meaning of Article XXIII:1(b) of the GATT 1947
because the Australian measure upset the competitive relationship between ammonium sulphate and
sodium nitrate (mainly Chilean).  These two fertilizers were treated separately from a tariff standpointand were not considered by the Panel as like products.  In Canada’s view, these two cases therefore
clearly establish that Article XXIII:1(b) can be invoked in the case of a measure which upsets the
competitive relationship between tw o products that are not identical.
3.525  For these reasons, Canada asserts that, without regard to the question of whether the measure
is consistent with the provisions of the GATT 1994, it nullifies or impairs the tariff concessionsgranted to Canada by the EC with respect to access to the French market for chrysotile asbestos and
products containing it.
3.526  The European Communities point out that the Decree cannot be considered incompatible
with the provisions of Article XXIII:1(b) of the GATT.  The EC stress that the burden of proof, in the
context of Article XXIII:1(b) of the GATT, is particularly heavy and lies with Canada.  The EC
consider that Canada has not provided sufficient  evidence of incompatibility with this Article.
3.527  The EC claim that the rules on “non-violation” apply only if the measure in question does not
fall under other provisions of the GATT.  The EC recall that the Panel on Japan - Measures affecting
Consumer Photographic Film and Paper  noted that “We reach this conclusion in considering the
purpose of Article XXIII:1(b), which is to protect the balance of concessions under GATT by
providing a means to redress government actions not otherwise regulated by GATT rules ...”
632  The
EC consider that Article XXIII:1(b) is applicable only if the Panel reaches the conclusion that the
Decree is consistent with Article III of the GATT, or possibly with the TBT Agreement if the Panel
were to apply that Agreement to the present case.  Otherwise, the EC consider that there cannot be
“non-violation”.  Moreover, in this connection, the EC recall that Article XX of the GATT provides,
in particular, that “... nothing in this Agreement shall be construed to prevent the adoption or
                                                     
630 Treatment by Germany of Imports of Sardines , Report of the Panel, adopted on 31 October 1952,
BISD 1S/53.
631 Australian Subsidy on Ammonium Sulphate , Report of the Panel, adopted on 3 April 1950,
Vol.II/188.
632 Japan – Measures affecting Consumer Photographic Film and Paper , report of the Panel, (not
appealed), adopted on 22 April 1998, WT/DS44/R, para.10.50.WT/DS135/R
Page 192
enforcement by any contracting party of measures: ...(b) necessary to protect human ... life or health”.
Similarly, the preamble to the TBT Agreement states that “.. no country should be prevented from
taking measures necessary ... for the protection of human ... life or health ...”.  The EC therefore
conclude that, if the French measure is considered “necessary” for the protection of human health by
the Panel and hence if specific rules have been applied in this respect, the provisions ofArticle XXIII:1(b) of the GATT are inapplicable.
3.528  The EC maintain that Canada could not have “legitimate expectations” with respect to a
measure taken to protect human health and which can therefore be justified, particularly with regard
to Article XX(b) of the GATT or Article 2.2 of the TBT Agreement. While a Member may have
“legitimate expectations” in connection with a pure ly commercial measure, no such expectations can
be pleaded when it comes to health protection matters.  The EC note, moreover, that the United Statesshares this point of view.
633  The EC indicate that Canada, which was aware of past and present
scientific research and of the steps being take n by the relevant international organizations to
encourage the rapid replacement of asbestos by substitute products, could not have had “legitimate
expectations” arising out of relevant tariff concessions, whatever the date of those concessions.
3.529  Canada reiterates its arguments on non-violation set out above.  The following comments are
limited to rejecting certain claims by the EC in paragraphs 3.526-3.528.  Canada notes that the EC
claim that in a situation of non-violation no action can be taken against a measure deemed justified in
accordance with Article XX of the GATT.  According to Canada, the cases of Uruguayan Recourse to
Article XXIII634 and United States – Trade Measures affecting Nicaragua635 do not support such an
interpretation.  In the Uruguay case, the Panel considered that measures to protect human health
contrary to Article XI but justified under Article XX(b) could nevertheless lead to recourse in a non-
violation situation.  In the Nicaragua case, the whole procedure was based on the premise that the
American embargo was justified under Article XXI.  Although it would have been correct to claim
that an appeal in a non-violation situation cannot be made if a measure is an exception, in theNicaragua case, the Panel did not carry out an in-depth examination.  This question was, however,
never raised by the United States and the Panel therefore carried out an examination and published its
findings.
3.530  Canada points out that the EC’s reasoning is not substantiated for three additional reasons.
Firstly, contrary to the EC’s claim, inasmuch as Article 26:1(b) of the Understanding does not provide
for the granting of compensation rather than withdrawal of a measure, recourse in non-violation
affects neither “the adoption” nor “the application” of the contested measure.  Secondly, the EC’sattempt to develop a category of “measure(s) of a purely commercial nature” in comparison with a
“measure which has health-protection related aspects” is, to say the least, dubious.  Not only is it
purely artificial, but this distinction has no basis, neither in the texts of the WTO Agreement nor in the
case law.  Nothing in Article XXIII:1(b) provides for such a distinction.  Canada claims that a
legitimate expectation does not in any way concern a particular measure or series of measures adoptedby a Member, but rather legitimate expectations in relation to the opportunities for competition agreed
during multilateral trade negotiations on a given product.  Canada notes that the reasoning of the
United States cited by the EC suffers from the same confusion.  Lastly, the European reasoning is
wrong because it does not concur with what was expressed during the preparatory work on the
GATT 1947, as it appears in the theory “(…) one of the principal objectives of the Article
[XXIII:1(b)] is to prevent circumvention of the provisio ns of [the Agreement].  Under this Article, if a
Member State utilizes the exceptions provided in the Article [XX(b)] as a means of protection, any
other Member may take the matter up with the ITO and obtain satisfaction.  It is virtually impossible
to foresee exceptions that will not lend themselves to abuse if good faith is lacking.  The League of
                                                     
633 See Section IV above.
634 Uruguayan Recourse to Article XXIII , L/1923, adopted on 16 November 1962, BISD 11S/95,
paras.14-19.
635 United States – Trade Measures affecting Nicaragua, L/6053 (1986), p.14.WT/DS135/R
Page 193
Nations adopted an article along the lines of the Article [XXIII:1(b)] precisely because it was unable
to find a formula for exceptions that excluded any possibility of abuse”.636  Canada claims that it has
provided detailed proof of the elements set out in the case of Japan – Measures affecting Consumer
Photographic Film and Paper637 that make it possible to determine that the French measure, even if
consistent with the GATT, nonetheless nullifies or  impairs benefits accruing to Canada under the
WTO Agreements or the attainment of one of the objectives of the Agreements.
3.531  The European Communities  claim that the Decree is not incompatible with the provisions of
Article XXIII:1(b) of the GATT and its case law.  As  they have already pointed out, it is not possible
to claim “legitimate expectations” with respect to a measure that is taken to protect human health and
can therefore be justified, particularly with regard to Article XX(b) of the GATT or Article 2.2 of the
TBT Agreement. While a Member may have legitimate expectations in connection with a purely
commercial measure, no such expectations can be pleaded when it comes to measures taken to protecthuman health.  This is also the position taken by the United States in its third party intervention.  The
EC note that Canada referred to two Panel Reports, one concerning Uruguay (1962)
638 and the other
Nicaragua (1986)639, to claim support for its proposition that a non-violation claim can be made in this
case.  According to the EC, neither of the two Pa nel Reports referred to by Canada, nor any other
panel report, lends support to such claims. The first Panel has no relevance whatsoever to the issuesdiscussed here. The second, unadopted, Panel Report in the Nicaraguan case is also irrelevant, as the
Panel in that case specifically stated that it refrained from taking any position on the non-violation
claims made by Nicaragua.  The EC note that Canada also argued that the background to
Article XXIII.1(b) supports the view that non-violat ion complaints may and should remain possible to
deal with situations of bad faith and abuse in the application of the provisions of the GeneralAgreement and of Article XX. This is not correct. Ca nada takes a selective look at some parts of the
preparatory documents.  As the Appellate Body stated in the United States - Shrimps  case, the
conditions laid down in the chapeau of Article XX(b) are meant precisely to address situations in
which a Member applies in bad faith and in an abusive manner the exceptions laid down in
Article XX. In the EC’s view, this means that the potential problem of abuse and bad faith, alluded toby Canada, is adequately covered by the “chapeau” of Article XX and there cannot be two sets of
provisions (non-violation and the chapeau of Articl e XX) which address the same problem twice.  The
EC therefore propose that this argument of Canada also be rejected.
_______________
                                                     
636 Analytical Index, p.764.
637 WT/DS44/R.
638 Uruguayan Recourse to Article XXIII , L/1923, adopted on 16 November 1962, BISD 11S/95,
paras.14-19.
639 United States – Trade Measures affecting Nicaragua,  Report circulated on 13 October 1986, not
adopted,  L/6053.