WT/DS561/R  
 
19 December  2023 
(23-8693) Page: 1/54 
  Original: English  
 
  
TURKEY – ADDITIONAL DUTIES ON CERTAIN PRODUCTS FROM  
THE U NITED  STATES  
REPORT OF THE PANEL  
 
 WT/DS561/R  
 
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  TABLE OF CONTENTS  
 
1   INTRODUCTION  ................................ ................................ ................................ ........  10 
1.1   Complaint by the United  States  ................................ ................................ ..................  10 
1.2   Panel establishment and composition  ................................ ................................ ..........  10 
1.3   Panel proceedings  ................................ ................................ ................................ ..... 11 
1.3.1   General  ................................ ................................ ................................ ................  11 
1.3.2   Requests for enhanced third -party rights  ................................ ................................ ... 12 
2   FACTUAL ASPECTS  ................................ ................................ ................................ ..... 12 
2.1   The measure at issue  ................................ ................................ ................................  12 
2.2   Factual background  ................................ ................................ ................................ ... 13 
3   PARTIES' REQUESTS FOR FINDINGS AND RECOMMENDATIONS  ................................  14 
4   ARGUMENTS OF THE PARTIES  ................................ ................................ ...................  14 
5   ARGUMENTS OF THE THIRD PARTIES  ................................ ................................ ........  14 
6   INTERIM REVIEW  ................................ ................................ ................................ ...... 15 
6.1   Applicability of the relevant covered agreements  ................................ ...........................  15 
6.1.1   Paragraph 7.3 and footnote 67  ................................ ................................ ................  15 
6.1.2   Paragraphs 7.52 -7.56 ................................ ................................ .............................  15 
6.1.3   Paragraph 7.61  ................................ ................................ ................................ ..... 16 
6.1.4   Section  7.1.2.5.2  ................................ ................................ ................................ ... 17 
6.2   United  States' claim under Articles II:1(a) and II:1(b) of the GATT  1994 ..........................  18 
6.2.1   Section  7.2.3.2.2  ................................ ................................ ................................ ... 18 
7   FINDINGS  ................................ ................................ ................................ .................  21 
7.1   Applicability of the relevant covered agreements  ................................ ...........................  21 
7.1.1   Main arguments of the parties  ................................ ................................ .................  21 
7.1.1.1    United  States  ................................ ................................ ................................ ..... 21 
7.1.1.2    Türkiye  ................................ ................................ ................................ ..............  23 
7.1.2   Analysis by the Panel  ................................ ................................ .............................  24 
7.1.2.1    Introduction  ................................ ................................ ................................ ....... 24 
7.1.2.2    The Panel's duty to assess the applicability of the relevant covered agreements  ...........  25 
7.1.2.3    Order of analysis  ................................ ................................ ................................ . 26 
7.1.2.4    Interpretation of Article  8.2 of the Agreement on Safeguards and Article  XIX:3(a)  
 of the GATT  1994 ................................ ................................ ................................ ............  27 
7.1.2.5    Whether Art icle 8.2 of the Agreement on Safeguards and Article  XIX:3(a) of the 
GATT  1994 apply to Türkiye's additional duties measure  ................................ ........................  30 
7.1.2.5.1    Interpretation of Article  11.1(c) of the Agreement on Safeguards  ............................  31 
7.1.2.5.2    Whether the United  States' Section  232 measures are excluded from the scope  
of application of the Agreement on Safeguards  ................................ ................................ ..... 35 
7.1.3   Conclusion  ................................ ................................ ................................ ............  40 
7.2   United  States ' claims under the GATT  1994 ................................ ................................ .. 40 
7.2.1   Whether the Panel should examine the additional duties measure as amended by 
Presidential Decision 1130/2019  ................................ ................................ ........................  40 WT/DS561/R  
 
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  7.2.1.1    Main arguments of the parties  ................................ ................................ ...............  40 
7.2.1.1.1    United  States  ................................ ................................ ................................ ... 40 
7.2.1.1.2    Türkiye  ................................ ................................ ................................ ...........  41 
7.2.1.2    Analysis by the Panel  ................................ ................................ ...........................  41 
7.2.2   United  States' claim under Article  I:1 of the GATT  1994 ................................ ..............  42 
7.2.2.1    Main arguments of the parties  ................................ ................................ ...............  42 
7.2.2.1.1    United  States  ................................ ................................ ................................ ... 42 
7.2.2.1.2    Türkiye  ................................ ................................ ................................ ...........  43 
7.2.2.2    Analysis by the Panel  ................................ ................................ ...........................  43 
7.2.2.2.1    The applicable legal standard  ................................ ................................ .............  44 
7.2.2.2.2    Whether the additional duties measure is inconsistent with Article  I:1 of the  
GATT  1994 ................................ ................................ ................................ .....................  44 
7.2.2.3    Conclusion  ................................ ................................ ................................ .........  45 
7.2.3   United  States' claim under Articles II:1(a) and II:1(b) of the GATT  1994 .......................  46 
7.2.3.1    Main arguments of the parties  ................................ ................................ ...............  46 
7.2.3.1.1    United  States  ................................ ................................ ................................ ... 46 
7.2.3.1.2    Türkiye  ................................ ................................ ................................ ...........  46 
7.2.3.2    Analysis by the Panel  ................................ ................................ ...........................  47 
7.2.3.2.1    The applicable legal standard  ................................ ................................ .............  47 
7.2.3.2.2    Whether Türkiye's additional duties measure is inconsistent with Article  II:1(b)  
of the GATT  1994................................ ................................ ................................ .............  48 
7.2.3.2.2.1    HS2017 tariff lines 210690980012, 210690980013, 210690980014,  
210690980015, and 210690980019  ................................ ................................ ...................  49 
7.2.3.2.2.2    HS2017 tariff lines 870333909011, 870333909019, 870340100000,  
870340900000, 870350000000, and 870360100000  ................................ ............................  50 
7.2.3.2.2.3    Conclusion  ................................ ................................ ................................ .... 53 
7.2.3.2.3    Whether the additional duti es measure is inconsistent with Article  II:1(a) of  
the GATT  1994 ................................ ................................ ................................ ................  53 
7.2.3.3    Conclusion  ................................ ................................ ................................ .........  53 
8   CONCLUSIONS AND RECOMMENDATION  ................................ ................................ ... 54 
 WT/DS561/R  
 
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  LIST OF ANNEXES  
ANNEX A  
WORKING PROCEDURES OF THE PANEL  
Contents  Page  
Annex  A-1 Working Procedures of the Panel  4 
Annex  A-2 Additional Working Procedures Concerning Substantive Meetings with Remote 
Participation  11 
ANNEX B  
ARGUMENTS OF THE PARTIES  
Contents  Page  
Annex  B-1 Integrated executive summary of the arguments of the United  States  15 
Annex  B-2 Integrated executive summary of the arguments of Türkiye  36 
ANNEX C  
ARGUMENTS OF THE THIRD PARTIES  
Contents  Page  
Annex  C-1 Integrated executive summary of the arguments of China  52 
Annex  C-2 Integrated executive summary of the arguments of the European  Union  56 
Annex  C-3 Integrated executive summary of the arguments of Japan  61 
Annex  C-4 Integrated executive summary of the arguments of New  Zealand  64 
Annex  C-5 Integrated executive summary of the arguments of Norway  65 
Annex  C-6 Integrated executive summary of the arguments of the Russian  Federation  69 
Annex  C-7 Integrated executive summary of the arguments of Switzerland  73 
Annex  C-8 Integrated executive summary of the arguments of Ukraine  77 
ANNEX D  
COMMUNICATION BY THE PANEL ON REQUESTS FOR ENHANCED THIRD -PARTY RIGHTS  
Contents  Page  
Annex  D-1 Communication by the Panel on requests for enhanced third -party rights  80 
ANNEX E  
TABLE OF RELEVANT DUTY RATES  
Contents  Page  
Annex  E-1 Table of relevant duty rates  83 
 
  WT/DS561/R  
 
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  CASES CITED IN THIS REPORT  
Short Title  Full Case Title and Citation  
Argentina – Financial Services  Appellate  Body Report, Argentina – Measures Relating to Trade in Goods and 
Services , WT/DS453/AB/R  and Add.1,  adopted 9  May 2016, DSR 2016:II, 
p. 431  
Argentina – Textiles and 
Apparel  Appellate  Body Report, Argentina – Measures Affecting Imports of 
Footwear, Textiles, Apparel and Other Items , WT/DS56/A B/R and Corr.1, 
adopted 22  April 1998, DSR 1998:III, p. 1003  
Canada – Autos  Panel  Report , Canada – Certain Measures Affecting the Automotive 
Industry , WT/DS139/R , WT/DS142/R , adopted 19  June 2000, as modified 
by Appellate  Body Report WT/DS139/AB/R, WT/DS142/AB/R, 
DSR 2000:VII, p. 3043  
Chile – Price Band System  Appellate  Body Report, Chile – Price Band System and Safeguard Measures 
Relating to Certain Agricultural Products , WT/DS207/AB/R , adopted 
23 October  2002, DSR 2002:VIII, p. 3045 (Corr.1, DSR 2006:XII, p. 547 3) 
China – Auto Parts  Appellate  Body Reports, China – Measures Affecting Imports of Automobile 
Parts, WT/DS339/AB/R  / WT/DS340/AB/R  / WT/DS342/AB/R , adopted 
12 January  2009, DSR 2009:I, p. 3  
China – Auto Parts  Panel  Report s, China – Measures Affecting Imports of Automobile Parts , 
WT/DS339/R , Add.1 and Add.2 / WT/DS340/R , Add.1 and Add.2 / 
WT/DS342/R , Add.1 and Add.2, adopted 12  January  2009, upheld 
(WT/DS339/R) and as modified (WT/DS340/R / WT/DS342/R) by 
Appellate  Body Reports WT/DS339/ AB/R / WT/DS340/AB/R / 
WT/DS342/AB/R, DSR  2009:I, p. 119  
China – Publications and 
Audiovisual Products  Panel  Report , China – Measures Affecting Trading Rights and Distribution 
Services for Certain Publications and Audiovisual Entertainment Products , 
WT/DS363/R  and Corr.1, adopted 19  January  2010, as modified by 
Appellate  Body Report WT/DS363/AB/R, DSR 2010:II, p. 261  
China – Raw Materials  Panel  Report s, China – Measure s Related to the Exportation of Various Raw 
Materials , WT/DS394/R , Add.1 and Corr.1 / WT/DS395/R , Add.1 and 
Corr.1 / WT/DS398/R , Add.1 and Corr.1, adopted 22  February  2012, as 
modified by Appellate  Body Reports WT/DS394/AB/R / WT/DS395/AB/R / 
WT/DS398/AB/R, DSR 2012:VII, p. 3501  
China – TRQs Panel  Report , China – Tariff Rate Quotas for Certain Agricultural Products , 
WT/DS517/R  and Add.1, adopted 28  May 2019 
Colombia – Ports of Entry  Panel  Report , Colombia – Indicative Prices and Restrictions on Ports of 
Entry , WT/DS366/R  and Corr.1, adopted 20  May 2009, DSR 2009:VI, 
p. 2535 
Colombia – Textiles  Appellate  Body Report, Colombia – Measures Relating to the Importation 
of Textiles, Apparel and Footwear , WT/DS461/AB/R  and Add.1, adopted 
22 June 2016, DSR 2016:III, p. 1131  
Dominican  Republic  – Import 
and Sale of Cigarettes  Appellate  Body Report, Dominican  Republic  – Measures Affecting the 
Importation and Internal Sale of Cigarettes , WT/DS302/AB/R , adopted 
19 May 2005, DSR 2005:XV, p. 7367  
Dominican  Republic  – Import 
and Sale of Cigarettes  Panel  Report , Dominican  Republic  – Measures Affecting the Importation 
and Internal Sale of Cigarettes , WT/DS302/R , adopted 19  May 2005, as 
modified by Appellate  Body Report WT/DS302/AB/R, DSR 2005:XV, p. 
7425 
Dominican  Republic  – 
Safeguard Measures  Panel  Report , Dominican  Republic  – Safeguard Measures on Imports of 
Polypropylene Bags and Tubular Fabric , WT/DS415/R , WT/DS416/R , 
WT/DS417 /R, WT/DS418/R , and Add.1, adopted 22  February  2012, 
DSR 2012:XIII, p. 6775  
EC – Chicken Cuts  Appellate  Body Report, European  Communities – Customs Classification of 
Frozen Boneless Chicken Cuts , WT/DS269/AB/R , WT/DS286/AB/R , 
adopted 27  September  2005, and Corr.1, DSR 2005:X IX, p. 9157  
EC – Chicken Cuts  Panel  Report s, European  Communities – Customs Classification of Frozen 
Boneless Chicken Cuts , WT/DS269/R  (Brazil)  / WT/DS286/R  (Thailand) , 
adopted 27  September  2005, as modified by Appellate  Body Report 
WT/DS269/AB/R, WT/DS286/AB/R, DSR 2005:XIX , p. 9295 / 
DSR 2005:XX, p. 9721 
EC – IT Products  Panel  Report s, European  Communities and its member States – Tariff 
Treatment of Certain Information Technology Products , WT/DS375/R  / 
WT/DS376/R  / WT/DS377/R , adopted 21  September  2010, DSR 2010:III, 
p. 933 
EC – Seal Products  Appellate  Body Reports, European  Communities – Measures Prohibiting 
the Importation and Marketing of Seal Products , WT/DS400/AB/R  / 
WT/DS401/AB/R , adopted 18  June 2014, DSR 2014:I, p.  7 WT/DS561/R  
 
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  Short Title  Full Case Title and Citation  
EC – Selected Customs Matters  Appellate  Body Report, European  Communities – Selected Customs 
Matters , WT/DS315/AB/R , adopted 11  December  2006, D SR 2006:IX, 
p. 3791 
India – Additional Import Duties  Appellate  Body Report, India – Additional and Extra -Additional Duties on 
Imports from the United  States , WT/DS360/AB/R , adopted 
17 November  2008, DSR 2008:XX, p.  8223 
Indonesia – Autos  Panel  Report , Indonesia – Certain Measures Affecting th e Automobile 
Industry , WT/DS54/R , WT/DS55/R , WT/DS59/R , WT/DS64/R , Corr.1 and 
Corr.2, adopted 23  July 1998, and Corr.3 and Corr.4, D SR 1998:VI, 
p. 2201 
Indonesia – Iron or Steel 
Products  Appellate  Body Report, Indonesia – Safeguard on Certain Iron or Steel 
Products , WT/DS490/AB/R , WT/DS496/AB/R , and Add.1, adopted 
27 August  2018, DSR 2018:VII, p.  3393 
Russia – Tariff Treatment  Panel  Report , Russia – Tariff Treatment of Certain Agricultural and 
Manufacturing Products , WT/DS485/R , Add.1, Corr.1, and Corr.2, adopted 
26 September  2016, DSR 2016:IV, p.  1547 
Saudi Arabia – IPRs Panel  Report , Saudi Arabia – Measures Concerning the Protection of 
Intellectual Property Rights , WT/DS567/R  and Add.1, circulated to WTO 
Members on 16 June 2020, dispute terminated while appeal  pending  
US – Certain EC Products  Appellate  Body Report, United  States – Import Measures on Certain 
Products from the European  Communities , WT/DS165/AB/R , adopted 
10 January  2001, DSR 2001:I, p.  373 
US – Large Civil Aircraft (2nd 
complaint) (Article  21.5 – EU) Panel  Report , United  States – Measures Affecting Trade in Large Civil 
Aircraft (Second Complaint) – Recourse to Article  21.5 of the DSU by the 
European  Union , WT/DS353/RW  and Add.1, adopted 11  April 2019, as 
modified by Appellate  Body Report WT/DS353/AB/RW, DSR 201 9:V, 
p. 2171 
US – Line Pipe  Appellate  Body Report, United  States – Definitive Safeguard Measures on 
Imports of Circular Welded Carbon Quality Line Pipe from Korea , 
WT/DS202/AB/R , adopted 8  March  2002, DSR 2002:IV, p.  1403 
US – Poultry (China)  Panel  Report , United  States – Certain Measures Affecting Imports of 
Poultry from China , WT/DS392/R , adopted 25  October  2010, DSR 2010:V, 
p. 1909 
US – Renewable Energy  Panel  Report , United  States – Certain Measures Relating to the Renewable 
Energy Sector , WT/DS510/R  and Add.1, circulated to WTO Members 
27 June 2019, appealed 15  August  2019 
US – Steel and Aluminium 
Products (Turkey)  Panel  Report , United  States  – Certain Measures on Steel and Aluminium 
Products , WT/DS564/R , Add.1 and Suppl.1, circulated to WTO Members 
9 December 2022, appealed 26  January  2023 
US – Steel Safeguards  Appellate  Body Report, United  States – Definitive Safeguard Measures on 
Impor ts of Certain Steel Products , WT/DS248/AB/R , WT/DS249/AB/R , 
WT/DS251/AB/R , WT/DS252/AB/R , WT/DS253/AB/R , WT/DS254/AB/R , 
WT/DS258/AB/R , WT/DS259/AB/R , adopted 10  December  2003, 
DSR 2003:VII, p.  3117 
US – Tariff Measures (China)  Panel  Report , United  States – Tariff Measures on Certain Goods from 
China , WT/DS543/R  and Add.1, circulated to WTO Mem bers 
15 September  2020, appealed 26  October  2020 
US – Upland Cotton  Appellate  Body Report, United  States – Subsidies on Upland Cotton , 
WT/DS267/AB/R , adopted 21  March  2005, DSR 2005:I, p.  3 
US – Zeroing (Japan) 
(Article  21.5 – Japan)  Appellate  Body Report, United  States – Measures Relating to Zeroing and 
Sunset Reviews – Recourse to Article  21.5 of the DSU by Japan , 
WT/DS322/AB/RW , adopted 31  August  2009, D SR 2009:VIII, p.  3441 
 
  WT/DS561/R  
 
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  EXHIBITS REFERRED TO IN THIS REPORT  
Panel Exhibit  Title Short title (where 
applicable ) 
USA-1, TUR-41 Decree on Additional Duties on the Importation of Certain 
Products Originated from the United  States  of America, 
Council of Ministers Decree No.  11973 /2018, Official Gazette 
No. 30459 (bis) (25 June 2018) Implementation D ecree  
USA-2, TUR-42 Decision Amending the Decree On Additional Duties on the 
Importation of Certain Products Originated from the 
United  States  of America, Presidential Decision No.  21, 
Official Gazette No.  30510  (15 August  2018) First Amendment  
USA-6 United  States ' Table Presenting Tariff Lines and Bound Rates 
Affected By Türkiye's Measure from  21 June 2018 to 
14 August  2018  
USA-7 United  States ' Table Presenting Tariff Lines and Bound Rates 
Affected By Türkiye's Measure from 15 August  2018 to 
31 December  2018  
USA-8 United  States ' Table Presenting Tariff Lines and Bound Rates 
Affected By Türkiye's Measure beginning  on 1 January  2019  
USA-10, TUR-1 Trade Expansion Act, Public Law No.  87–794, 76 Stat. 877 
(1962), United  States  Code, Title 19, Section  1862 Section  232  
USA-16, TUR-2 United  States  Code of Federal Regulations, Title 15, Part 705   
USA-21, TUR-3 United  States  Department of Commerce, Bureau of Industry 
and Security, Office of Technology Evaluation, The Effect of 
Imports of Steel on the National Security, An Investigation 
Conducted und er Section  232 of the Trade Expansion Act of 
1962, as Amended  (11 January  2018)  Section  232 investigation 
into steel imports  
USA-22, TUR-4 United  States  Department of Commerce, Bureau of Industry 
and Security, Office of Technology Evaluation, The Effect of 
Imports of Aluminum on the National Security, An 
Investigation Conducted under Section  232 of the Trade 
Expansion Act of 1962, as Amended  (17 January  2018) Section  232 investigation 
into aluminium imports  
USA-23, TUR-6 Proclamation 9705 of 8  March  2018, Adjusting Imports of 
Steel Into the United  States, United  States Federal Register, 
Vol. 83, No.  51 (15  March  2018), p. 11625  Proclamation 9705  
USA-24, TUR-7 Proclamation 9704 of 8  March  2018, Adjusting Imports of 
Aluminum Into the United  States, United  States Federal 
Register, Vol. 83, No.  51 (15  March  2018), p. 11619  Proclamation 9704  
USA-25, TUR-8 Proclamation 9711 of 22  March  2018, Adjusting Imports of 
Steel Into the United  States, United  States Federal Register, 
Vol. 83, No.  60 (28  March  2018), p. 13361  Proclamation 9711  
USA-26, TUR-9 Proclamation 9710 of 22  March  2018, Adjusting Imports of 
Aluminum Into the United  States, United  States Fede ral 
Register, Vol. 83, No.  60 (28  March  2018), p. 13355   Proclamation 9710  
USA-27, TUR-10 Proclamation 9740 of 30  April 2018, Adjusting Imports of 
Steel Into the United  States, United  States Federal Register, 
Vol. 83, No.  88 (7  May 2018), p. 20683  Proclamation 9740  
USA-28, TUR-11 Proclamation 9739 of 30  April 2018, Adjusting Imports of 
Aluminum Into the United  States, United  States Federal 
Register, Vol. 83, No.  88 (7  May 2018), p. 20677  Proclamation 9739  
USA-29, TUR-12 Proclamation 9759 of 31  May 2018, Adjusting Imports of 
Steel Into the United  States, United  States Federal Register, 
Vol. 83, No.  108 (5  June 2018), p. 25857  Proclamation 9759  
USA-30, TUR-13 Proclamation 9758 of 31  May 2018, Adjusting Imports of 
Aluminum Into the United  States, Uni ted States Federal 
Register, Vol. 83, No.  108 (5  June 2018), p. 25849  Proclamation 9758  
USA-31, TUR-14 Proclamation 9772 of 10  August  2018, Adjusting Imports of 
Steel Into the United  States, United  States Federal Register, 
Vol. 83, No.  158 (15 August  2018), p. 40429  Proclamation 9772  
USA-32, TUR-15 Proclamation 9777 of 29  August  2018, Adjusting Imports of 
Steel Into the United  States, United  States Federal Register, 
Vol. 83, No.  171 (4  September  2018), p. 45025  Proclamation 9777  
USA-33, TUR-16 Proclamation 9776 of 29  August  2018, Adjusting Imports of 
Aluminum Into the United  States, United  States Federal 
Register, Vol. 83, No.  171 (4  September  2018), p. 45019  Proclamation 9776  WT/DS561/R  
 
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  Panel Exhibit  Title Short title (where 
applicable ) 
USA-35 Submissions of Exclusion Requests and Objections to 
Subm itted Requests for Steel and Aluminum, United  States 
Federal Register, Vol. 83, No.  176 (11  September  2018), 
p. 46026  BIS rule of 
11 September  2018 
USA-55 Consolidated Tariff Schedule  file of  Türkiye  CTS file of Türkiye  
USA-56 Türkiye 's 2018 Import Table  (Decision No.  2017/11168  - 
Additional Decision to the Import Regime Decision, issued  on 
25 December  2017)  Türkiye 's 2018 Import 
Table  
USA-57 Türkiye 's 2019 Import Table, as attached to USA -5 (Decision 
No. 517 - Additional  Decision to the Import Regi me Decision, 
issued on 27  December 27 2018)  Türkiye 's 201 9 Import 
Table  
USA-58 Excerpts of graphs from WTO -WCO HS Tracker, Subheading 
Visualizer tool, HS2002  to HS2017 correlations for certain 
tariff headings  Excerpts of graphs from 
WTO-WCO HS Tracker  
USA-59 World Customs Organization correlation tables HS2012 to 
HS2017 (Table  1) WCO correlation tables 
HS2012 to HS2017 (1)  
USA-60 World Customs Organization correlation tables HS2012 to 
HS2017 (Table  2) WCO correlation tables 
HS2012 to HS2017 (2)  
TUR-19 Memorandum from the United  States  Secretary of Defense, 
Memorandum for Secretary of Commerce responding to the 
Steel and Aluminum Policy Recommendations  United  States  Secretary of 
Defense Memorandum  
TUR-43 Presidential Decision No.  1130 Amending the Decree on 
Additional Duties on the Importation of Certain Products 
Originated from the United  States  of America, Official 
Gazette No.  30781  (22 May 2019)  Second Amendment  
TUR-44 Proclamation 9894 of 19  May 2019, Adjusting Imports of 
Steel Into the United  States, United  States Federal Register, 
Vol. 84, No.  100 (23  May 2019), p. 23987  Proclamation 9894  
TUR-45 Proclamation 9893 of 19  May 2019, Adjusting Imports of 
Aluminum  Into the United  States, United  States Federal 
Register, Vol. 84, No.  100 (23  May 2019), p. 23983  Proclamation 9893  
TUR-46 Proclamation 9886 of 16  May 2019, Adjusting Imports of 
Steel Into the United  States, United  States Federal Register, 
Vol. 84, No.  98 (21 May 2019), p. 23421  Proclamation 9886  
 
 WT/DS561/R  
 
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  ABBREVIATIONS USED IN THIS REPORT  
Abbreviation  Description  
CTS Consolidated Tariff Schedule  
DSB Dispute Settlement Body  
DSU Understanding on Rules and Procedures Governing the Settlement of Disputes  
GATT  1994 General Agreement on Tariffs and Trade 1994  
HS2002  Harmonized System Nomenclature 2002  
HS2007  Harmonized System Nomenclature 200 7 
HS2012  Harmonized System Nomenclature  2012 
HS2017  Harmonized System Nomenclature  2017 
IDB Integrated Database  
MFN Most-Favoured Nation  
WCO World Customs Organization  
WTO Agreement   Marrakesh Agreement Establishing the World Trade Organization  
 WT/DS561/R  
 
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  1  INTRODUCTION  
1.1  Complaint by the United  States  
1.1.  On 16  July 2018, the United  States  requested consultations with Türkiye1 pursuant to Article  4 
of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) and 
Article  XXIII of the General Agreement on Tariffs and Trade 1994 (GATT  1994). The consultations 
reques t concerned Türkiye's imposition of additional duties on certain products originating in the 
United  States. The United  States  indicated that these additional duties were imposed through legal 
instruments including Türkiye's Decree No. 11973 /2018 on Additional Duties on the Importation of 
Certain Products Originated from the United  States  of America, Official Gazette No.  30459 (bis), 
25 June 2018  (Implementation Decree )2, as well as any amendments, replacements, related 
measures , or implementing measu res. In its consultations request, the United  States  referred to 
these additional duties as the "additional duties measure".3 
1.2.  Consultations were held on 29  August  2018, but failed to resolve the dispute.  
1.3.  On 18  October  2018, the United  States  sent Türkiye a second request for consultations 
pursuant to Article  4 of the DSU and Article  XXIII of the GATT  1994, which supplemented its earlier 
consultations request. This supplementary consultations request concerned "the amended additional 
duties measure"4, whic h resulted from an increase in the duty rates implemented by Türkiye through 
the Decision Amending the Decree On Additional Duties on the Importation of Certain Products 
Originated from the United  States  of America, Presidential Decision No.  21, Official G azette 
No. 30510 (15 August  2018) (First Amendment)5, as well as any amendments, replacements, 
related measures, or implementing measures.  
1.4.  Supplemental  consultations were held on 14  November  2018, but failed to resolve the dispute.  
1.2  Panel establishment and composition  
1.5.  On 20 December  2018, the United  States  requested the establishment of a panel pursuant to 
Article  6 of the DSU with standard terms of reference.6 At its meeting on 28 January  2019, the 
Dispute Settlement Body (DSB) established a panel pursuant to the request of the United  States  in 
document WT/DS 561/2 , in accordance with Article  6 of the DSU.7 
1.6.  The Panel's terms of reference are the following:  
To examine, in the light of the releva nt provisions of the covered agreements cited by 
the parties to the dispute, the matter referred to the DSB by the United  States  in 
document WT/DS 561/2  and to make such findings as will assist the DSB in making the 
recommendations or in giving the rulings provided for in those agreements.8 
 
1 Following the establishment of this Panel, Turkey changed its name to the Republic of Türkiye.  See 
WT/INF/43/Rev.23.  
2 Both parties have submitted translations of this instrument, which differ in respect of, inter alia , its 
title. In its consultations and  panel requests, the United  States  referred to this instrument as the " Decision on 
Implementation of Additional Financial Obligations for the Import of Certain Products Originating in the 
United  States  of America ". In this Report, the Panel has decided to use Türkiye's translation, submitted as 
Exhibit  TUR-41, in the light of the United  States ' indication that it would have no objection to the Panel doing 
so. See United  States ' response to Panel question No.  71. The Panel understands that the slight differe nces in 
language between the two translations have no legal significance.  
3 Request for consultations by the United  States , WT/DS561/1.  
4 Request for consultations by the United  States  – Addendum,  WT/DS561/1 /Add.1.  
5 Both parties have submitted translations of this instrument. In its consultation s and panel requests, 
the United  States  referred to this instrument as the " Decision to Amend the Decision to Impose Additional 
Financial Liabilities on the Import of Some Pro ducts Originating From the United  States  of America ". In this 
Report, the Panel will use Türkiye's translation, submitted as Exhibit TUR -42. The Panel does not consider that 
the slight differences between the two translations have any legal significance.  
6 Request for the establishment of a panel by the United  States , WT/DS561/2  (United  States ' panel 
request) . 
7 DSB, Minutes of the meeting held on 28  January  2019,  WT/DSB/M/425 , para.  6.7. 
8 Constitution note of the Panel,  WT/DS561/3 . WT/DS561/R  
 
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  1.7.  On 18 February  2019, the United  States  requested the Director -General to determine the 
composition of the panel, pursuant to Article  8.7 of the DSU . On 28 February  2019, the 
Director -General accordingly composed the Pane l as follows:  
Chairperson:  Mr William  Ehlers  
 
Members:   Mr Johannes  R. Bernabe  
   Mr Homero  Larrea  Monard  
 
1.8.  Brazil, Canada, China, the European  Union , Guatemala, India, Indonesia, Japan, Kazakhstan, 
Mexico, New  Zealand , Norway, the Russian  Federation , Singapore, Switzerland, Chinese  Taipei , 
Thailand, Ukraine, and the Bolivarian Republic of Venezuela  notified their interest in participating in 
the Panel proceedings as third parties.  
1.3  Panel proceedings  
1.3.1   General  
1.9.  The Panel held an organizational meeting with the parties on 14 March  2019.  
1.10.  After consulting  with the parties, the Panel adopted its Working Procedures9 and partial 
timetable on 5 April 2019. The Panel revised its timetable several times throughout the proceedings 
in consultation with th e parties.10 
1.11.  The Panel held a first substantive meeting with the parties on 3 and 4  October  2019. A session 
with the third parties took place on 3 October  2019. Prior to the first substantive meeting, on 
23 September  2019, the Panel sent the parties  and the third parties  a list of questions to be 
answered orally at the meeting. Following the meeting, on 29  November  2019, the Panel sent written 
questions to the parties and the third parties.  
1.12.  The second substantive meeting was originally scheduled to take pla ce on 15  and 
16 June 2020.  However, d ue to the COVID -19 pandemic and related restrictions on travel and 
in-person meetings, it was not possible to physically meet with the parties at the WTO premises on 
the scheduled dates. In consultation with the parties , the Panel postponed the second substantive 
meeting several times to a date to be determined.  Meanwhile , on 16  November  2020, the Panel sent 
the parties a list of questions to which it sought responses in writing.  
1.13.  On 17  December  2021, after further consul tations with the parties, the Panel communicated 
its decision that, taking into account the delays already occasioned by COVID -19, as well as the 
uncertainty about the evolution  of the pandemic , scheduling a second substantive meeting in virtual 
format wou ld strike an appropriate balance between the efficient conduct of the proceedings and the 
parties' due process rights.11 
1.14.  On 8 February  2022,  after consultations with the parties,  the Panel  scheduled the second 
substantive meeting through virtual means for 8 and 9 March  2022, and issued draft Additional 
Working Procedures Concerning Substantive Meetings with Remote Participation  to the parties . On 
18 February  2022, the Panel adopted its Additional Working Procedures Concerning Substantive 
Meetings with Remote Participation .12  
1.15.  The Panel held its second substantive meeting with the parties virtually on 8 and 9  March  2022 
via the Cisco Webex platform. Prior to the second substantive meeting, on  1 March  2022, the Panel 
sent the parties a list of questions to be answered orally at the meeting.  
1.16.  On 28  April 2022, the Panel sent the parties a list of questions to which it sought answers in 
writing.  
 
9 See Working Procedures of the Panel  (Annex  A-1). 
10 The timetable was revised on 5 April 2019, 7  February  2020, 3  June 2020, 16  November  2020, 
23 November 2020, 18  February  2022, 28 April 2022, 13 May 2022, 23 November  2022, and 25  May 2023. 
11 Panel's communication to the parties  (17 December  2021). 
12 Annex  A-2. WT/DS561/R  
 
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  1.17.  On 15  December  2022, the Panel issued the draft descriptive part of its Report to the parties. 
On the same day, and following the circulation of the panel report i n US – Steel and Aluminium 
Products ( Turkey ), the Panel sought the parties' views on the findings in that report concerning the 
applicability of the WTO safeguards regime to the United  States ' Section  232 measures, and on the 
relevance of those findings fo r this Panel's analysis.  
1.18.  The Panel issued its Interim Report to the parties on 25 May 2023. The Panel issued its Final 
Report to the parties on 1 December 2023 . 
1.3.2   Request s for enhanced third -party rights  
1.19.  The Panel received communications from Canada13, the Russian  Federation14, 
the European  Union15, China16, and Mexico17, asking that the Panel exercise its discretion under 
Article  12.1 of the DSU to grant all third parties additional rights to those provided under Article  10 
of the DSU. The request ing th ird parties  asked the Panel to allow all third parties : (i) to receive 
copies of the parties' written submissions, their oral statements, rebuttals , and answers to questions 
from the Panel and each other, through all the stages of the proceedings; (ii)  to be present for the 
entirety of all substantive meetings of the Panel with the parties; (iii)  to review the draft summary 
of their own arguments in the descriptive part of the Panel  Report ; and (iv)  to make a brief oral 
statement during the second substanti ve meeting.  
1.20.  The Panel sought the parties' views on the requests for enhanced third -party rights. Türkiye 
supported the requests, noting that the measure challenged by the United  States  in this dispute was 
similar to the measures challenged by the United  States in separate  panel proceedings where the 
requesting third parties were participat ing as respondents. According to Türkiye, the enhanced rights 
requested by the third parties would not impose any undue additional burden on either the Panel or 
the parties to the dispute.18 The United  States  opposed the requests, arguing that they were not 
well founded under the DSU, and that the granting of additional rights to third parties would result 
in a corresponding imposition of additional obligations on the parties, without the consent of one of 
them.19 
1.21.  On 5 April 2019, the Panel sent a communicatio n to the parties and the third parties in relation 
to the requests for enhanced third -party rights. The Panel recalled that it had discretion to grant 
such requests but  declined to do so in the circumstances of this case. In explaining its decision, the 
Panel noted, inter alia , the lack of agreement between  the parties and the due process implications 
of granting enhance d third-party rights. The Panel further noted that the third parties requesting 
enhanced rights would have an opportunity to fully express their views on the relevant legal issues 
as third parties in this dispute in accordance with Article  10 of the DSU, and also as respondents in 
separate panel proceedings concerning the United  States ' complaints against their own measures.  
1.22.  The Panel's commu nication is annexed to this Report.20 
2  FACTUAL ASPECTS  
2.1  The measure at issue  
2.1.  This dispute concerns Türkiye's imposition of additional duties on certain products originating 
in the United  States  (additional duties measure).21 The duties imposed by this measur e are 
 
13 Canada 's communication  (15 March  2019). 
14 Russian  Federation 's communication ( 19 March  2019). 
15 European  Union 's communication ( 20 March  2019). 
16 China 's communication ( 20 March  2019). 
17 Mexico 's communication ( 22 March  2019). 
18 Türkiye's communication s (21, 22, and 25  March  2019). 
19 United  States ' communication s (20, 21, 22, and 26  March  2019). 
20 Communication by the Panel on requests for enhanced third -party rights (Annex  D-1). 
21 As explained in section  1.1 above,  the additional duties originally challenged by the United  States 
were amended by Türkiye  following the parties' consultations  under Article  4 of the DSU . Further to 
supplementary consu ltations  on these amended additional duties , the United  States  requested the 
establishment of a panel on the "amended additional duties measure". In this Report , to differentiate the 
measure at issue from later amendments, the Panel has decided to refer to  the measure challenged by the 
United  States  in its panel request as the " additional duties measure" .  WT/DS561/R  
 
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  additional in that they apply in addition to other duties assessed on imports. The United  States ' 
panel request identifies the Implementation Decree22 and the First Amendment23, as well as any 
amendments, replacements, related measures or implementin g measures, as the legal instruments 
through which the additional duties measure is imposed.24 
2.2.  The Implementation Decree imposes additional duties on the importation of certain products 
from the United  States , including nuts, rice, food preparations, ethyl alcohol, tobacco, coal, beauty 
and make -up preparations, certain chemical substances, firewood, certain paper products, certain 
kinds of pumps, certain x -ray parts, and certain automotive parts.25 Specifically, it imposes 
additional dut ies of between 4% and 70 % on 22 tariff lines at the four - and six -digit level, and 
479 tariff lines at the 12 -digit level.26 These duties apply only to products originating in the 
United  States.27 
2.3.  The First Amendment applies to the same products as the Implementation Decree but increases 
the level of the additional duties, such that the 479 tariff lines are subject to additional duties of 
between 4% and 140 %.28 
2.2  Factual background  
2.4.  Between March and A ugust 2018, the United  States  issued instruments  impos ing certain 
duties  on imports of steel and aluminium products from several countries, including Türkiye 
(Section  232 duties).29 
2.5.  On 20  April 2018, Türkiye sent a communication to the United  States  stating that it considered 
the Section  232 duties to be safeguard measures, and requesting consultations with the 
United  States in accordance with Article  12.3 of the Agreement on Safeguards.30 That same day, the 
United  States  sent a response to Türkiye, stating that the Section  232 duties were not safeguard 
measures, and that therefore there was no basis to conduct consultations under the Agreement  on 
Safeguards  with respect to these duties .31 The United  States  indicated that while it would be open 
to dis cuss this or any other issue with Türkiye, any discussions regarding the Section  232 duties 
would not be under the Agreement  on Safeguards  and would be without prejudice to the 
United  States ' view that the Section  232 duties were not safeguard measures.32 
2.6.  On 21  May 2018, Türkiye notified the WTO Council for Trade in Goods and the Committee on 
Safeguards that, in Türkiye's view, the Section  232 duties constituted "safeguard measures which 
are not consistent with the provisions of the [Agreement on Safeguards ]".33 Türkiye therefore 
 
22 Exhibit s USA-1, TUR-41. The Implementation Decree entered into force on 21  June 2018 but was only 
published on 25  June 2018. See United  States ' response to Panel question No.  3. 
23 Exhibit s USA-2, TUR-42. 
24 United  States ' panel request, p. 1.  
25 Implementation Decree, (Exhibit s USA-1, TUR-41), Table; Türkiye's first written submission, 
para. 2.21.  
26 Implementation Decree, (Exhibit s USA-1, TUR-41). I n its first written submission, the United  States  
argued that the Implementation Decree affected 477 tariff lines at the 12 -digit level . (United  States' first 
written submission, para.  5). Türkiye, in its first written submission, noted that in fact the 22 four - and six -
digit tariff lines identified in the Implementation Decree cover 479 12 -digit tariff lines . (Türkiye's first written 
submission, para.  2.17, fn  28 and para.  2.22, fn 37). The United  States  subsequently accepted this correction . 
(United  States ' response to Panel question No.  4). 
27 Implementation Decree, (Exhibit s USA-1, TUR-41), Article  1. A full list of the relevant duties is 
provided in the Table of relevant duty rates  (Annex E-1). 
28 First Amendment , (Exhibit s USA-2, TUR-42).  
29 Türkiye's first written submission, paras.  2.6-2.9; United  States ' second written submission , 
paras.  12-14. 
30 Committee on Safeguards, Imposition of a safeguard  measure  by the United  States  on imports  of 
steel and aluminium : Request for consultations  under Article  12.3 of the Agreement on Safeguards, G/SG/183 . 
31 Committee on Safeguards, Communication from the United  States  in response  to Turkey's request  
circulated  on 20  April 2018, G/SG/184.  
32 Committee on Safeguards, Communication from the United  States  in response  to Turkey's request  
circulated  on 20  April 2018, G/SG/184 . 
33 Council for Trade in Goods  and Committee on Safeguards, Immediate Notification under Article  12.5 
of the Agre ement on Safeguards to the Council for Trade in Goods of proposed suspension of concessions and 
other obligations  referred to in paragraph  2 of Article  8 of the Agreement on Safeguards, G/L/1242 -
G/SG/N/12/TUR/6 , para.  2. In the same paragraph, Türkiye notes  its disagreement with  the United  States ' 
 WT/DS561/R  
 
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  proposed to "[s]uspen[d] … substantially equivalent concessions and other obligations under 
GATT  1994 to the trade of the United  States  tak[ing] the form of an increase in tariffs on selected 
products originating in the United  States " pursuant to Article  XIX:3 of the GATT  1994 and Article  8.2 
of the Agreement on Safeguards.34 Türkiye imposed the additional duties measure one month later, 
on 21  June 2018, through the Implementation Decree.35 
2.7.  On 15  August  2018, the United  States  increased the level of duties it applied to steel products 
from Türkiye.36 That same day, Türkiye notified the Council for Trade in Goods and the Committee 
on Safeguards that it "reserves its right to further suspend substantially equivalent concessions an d 
other obligations based on the trade impact resulting from the application of the new measures of 
the United States".37 Türkiye adopted the First Amendment on the same day, thereby increasing the 
level of additional duties imposed on certain products ori ginating in the United  States . 
2.8.  On 21  May 2019, a few months after the establishment of this Panel on 28  January  2019, the 
United  States  announced that it would reduce the duties it applied on certain steel products from 
Türkiye to the level in force prior to 15  August  2018.38 On the same day, Türkiye amended its 
additional duties measure through the Decision Amending the Decree On Additional Duties on the 
Importation of Certain Products Originated from the United  States  of America, Presidential Decision 
No. 1130, Official Gazette No.  30781  (22 May 2019) (Second Amendment).39 This instrument 
reduces the additional duties to the rates in force prior to 15  August  2018, i.e. prior to the entry into 
force of the First Amendment.40 
3  PARTIES' REQUESTS FOR FINDINGS AND RECOMMENDATIONS  
3.1.  The United  States  requests that the Panel find that  Türkiye's additional duties measure is 
inconsistent with Türkiye's obligations under Articles I:1, II:1(a), and II:1(b) of the GATT  1994.41 
3.2.  Türkiye requests that the Panel rej ect the United  States ' claims in this dispute in their 
entirety.42 
4  ARGUMENTS OF THE PARTIES  
4.1.  The arguments of the parties are reflected in their executive summaries, provided to the Panel 
in accordance with paragraph 22 of the Working Procedures adopted by the Pan el (see Annexes B -1 
and B -2). 
5  ARGUMENTS OF THE THIRD  PARTIES  
5.1.  The arguments of China, the European  Union , Japan, New  Zealand , Norway, the 
Russia n Federation , Switzerland, and Ukraine  are reflected in their executive summaries, provided 
 
view that the Section  232 duties " are not safeguard measures, and therefore, there is no basis to conduct 
consultations under the Agreement on Safeguards with respect to these measures ". (Ibid.) 
34 Council for Trade in Goods  and Committee on Safeguards, Immediate Notification under Article  12.5 
of the Agreement on Safeguards to the Council for Trade in Goods of proposed suspension of concessions and 
other obligations  referred to in paragraph  2 of Article  8 of the Agreement on Safeguards, G/L/1242 -
G/SG/N/12/TUR/6 , para.  3. 
35 As noted above, the Implementation Decree was only published on 25  June 2018. Implementation 
Decree, (Exhibit s USA-1, TUR-41). 
36 Türkiye's first written submission, para.  2.18. See Proclamation 9772 , (Exhibit s USA-31, TUR-14). 
37 Council for Trade in Goods and Committee on Safeguards, Immediate Notification under Article  12.5 
of the Agreement on Safeguards to the Council for Trade i n Goods of proposed suspension of concessions and 
other obligations  referred to in paragraph  2 of Article  8 of the Agreement on Safeguards , G/L/1242/Suppl.1 -
G/SG/N/12/TUR/6/Suppl.1.  
38 Türkiye's first written submission, para.  2.20. See Proclamation 9886 , (Exhibit TUR -46). 
39 Exhibit TUR -43. 
40 The parties disagree on whether this instrument is within the Panel's terms of reference, and what its 
legal significance might be. See United  States' response to Panel question No s. 5, 69, and 70; Türkiye's 
response to Panel question No s. 5, 69, and 72. The Panel will address these issues in its Findings.  
41 United  States ' first written submission, para.  77; second written submission, para.  150. 
42 Türkiye's first written submission, para.  5.1; second written submission, para.  4.1. WT/DS561/R  
 
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  in accordance with paragraph 25 of the Working Procedures adopted by the Panel (see Annexes C -1, 
C-2, C-3, C-4, C-5, C-6, C-7, and C-8).  
6  INTERIM REVIEW  
6.1.  On 25  May 2023, the Panel issued its Interim Report to the parties. On 8  June 2023, the parties 
submitted written requests for review of the Interim Report. Neither party requested an interim 
review meeting. On 15  June 2023, both parties submitted comments  on the other party's requests 
for review.  
6.2.  In accordance with Article  15.3 of the DSU, this section of the Report sets out the Panel's 
responses to the requests made at the interim review stage.43 
6.3.  At the outset, the Panel notes the parties' requests to mo dify or expand the Panel's summaries 
of their arguments. In this Report, the Panel has summarized the parties' arguments concerning the 
contested issues with a view to placing its reasoning and findings in context. The Panel did not intend 
to provide exten sive descriptions of all the arguments raised by the parties, but only of arguments 
relevant for the purposes of the Panel's  objective assessment of the matter before it. In this regard, 
the Panel recalls that the parties have submitted detailed executive summaries of their arguments, 
annexed to this Report44, which provide  a comprehensive account of their respective positions . The 
Panel further understands that it  has substantial  discretion to focus on those aspects of the parties' 
submissions that it cons iders most pertinent for the resolution of the dispute, in fulfilment of its duty 
to make such findings as will assist the DSB in making the recommendations or rulings provided for 
in the covered agreements.45 
6.4.  Accordingly, unless otherwise specified in thi s section, the Panel considers that the parties' 
arguments were adequately summarized in the Interim Report and  has not modified or expanded 
the relevant paragraphs in the Final Report.  
6.5.  The Panel has made typographical and other editorial modifications in the Report, including in 
response to the parties' requests for review.  
6.1  Applicability of the relevant covered agreements  
6.1.1   Paragraph 7.3 and footnote 67 
6.6.  The United  States requests that the Panel make certain changes to more accurately reflect the 
United  State s' position that "invocation through notice is the condition precedent for taking action 
under Article  XIX and the application of the safeguards disciplines".46 Türkiye does not object to the 
United  States ' request.47 
6.7.  Taking into account  that the modification s requested in  the summary of the United  States ' 
arguments do not impact the Panel's reasoning , and in the absence of any objection from Türkiye , 
the Panel agrees to modify paragraph 7.3 and footnote  67 of the Report.  
6.1.2   Paragraphs  7.52-7.56 
6.8.  Türkiye requests that the Panel either delete or revise its reasoning in paragraphs 7.52 and 
7.54 and footnote 120 of the Report, which Türkiye considers to be inconsistent with the principles 
of treaty interpretation. In particular, Türkiye contends that the P anel's contextual interpretation of 
Article  11.1(c) of the Agreement on Safeguards places selective reliance on the other paragraphs of 
Article  11.1 and fails to consider how the expression "pursuant to" is used in other provisions of the 
 
43 The paragraph and footnote numbers in the Final Report may have changed due to the revisions 
made at the interim review stage. The paragraph and footnote numbers indicated in this section pertain to 
those in the Final Report, unless otherwise specified.  
44 Integrated executive summary of the arguments of the United  States  (Annex  B-1) and Integrated 
executive summary of the arguments of Türkiye  (Annex  B-2). 
45 Article  7.1 of the DSU.  
46 United  States' interim review comments, para.  4. 
47 Türkiye's comments on United  States ' interim review comments, para.  2.1. WT/DS561/R  
 
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  Agreement on Safe guards.48 The United  States  objects to Türkiye's request, and refers to various 
elements of the Panel's findings to argue that "the Panel did consider the use of 'pursuant to' in 
other provisions of the Agreement on Safeguards … as well as the broader cont ext of the Agreement 
on Safeguards".49 
6.9.  The Panel recalls its observation in paragraph 7.52 that the meaning of "pursuant to" in a 
provision depends on its context, as illustrated by the different ways in which that expression is used 
in the Agreement on Sa feguards. The Panel accordingly interpreted "pursuant to" in Article  11.1(c) 
in the context in which those terms appear in that provision, namely, in relation to the applicability 
of legal disciplines.50 In doing so, the Panel took into account the immediate context of 
Article  11.1(c), including the use of contrasting terms in the various paragraphs of Article  11.1 of 
the Agreement on Safeguards, as well as the broader context of the Agreement on Safeguar ds.51 
The Panel also examined the context provided by various provisions of the Agreement on Safeguards 
for interpreting the terms " en vertu de " and " de conformidad con", respectively, in the French and 
Spanish language versions of Article  11.1(c). Based o n the foregoing, the Panel considers that its 
interpretation of Article  11.1(c) takes due account of the relevant context of that provision in all 
three languages and  declines Türkiye's request to revise its findings in this respect.   
6.10.  The United  States  requests that the Panel add a paragraph in the Report to support the Panel's 
interpretation of the terms "pursuant to" in Article  11.1(c) of the Agreement on Safeguards as set 
out in paragraphs 7.52 to 7.56. Specifically, the United  States requests the Panel  to indicate that 
the ordinary meaning of "sought, taken or maintained" in Article  11.1(c) supports the Panel's 
understanding that " in the case of measures sought, taken, or maintained by virtue of or under 
'provisions of GATT  1994 other than Article  XIX', the Agreement on Safeguards does not apply, 
irrespective of whether the measures are consistent with such other provisions ".52 Türkiye opposes 
the United  States ' request as, in its view, nothing in the Interim Report suggests that  the Panel 
agrees with the United  States ' interpretation of the phrase "sought, taken or maintained " in 
Article  11.1(c) . Türkiye argues that the United  States ' request seeks to amend the Panel 's reasoning 
with respect to an issue that is not necessary for the Panel to address to resolve the legal question 
before it , and that accepting this request could be seen as providing an advisory opinion.53 
6.11.  The Panel does not find it necessary to supplement  its reasoning with additional considerations  
as requested by the United  States . In the Panel's view, the interpretation provided in the Report  of 
the text of Article  11.1(c) of the Agreement on Safeguards , in its context and in the light of the 
object and purpose of the Agreement, is sufficiently detailed . The Panel  does not consider that 
addressing  the additional elements raised by the United  States  is strictly necessary to resolve  the 
dispute or to make  such findings as will assist the DSB in making the recommendations or rulings 
provided for in the covered agreeme nts. Accordingly, the Panel declines the request . 
6.1.3   Paragraph 7.61  
6.12.  Türkiye notes the reference in paragraph 7.61 to its argument that "whether a measure falls 
under the scope of Article  11.1(c) of the Agreement on Safeguards must be determined 'objectively'  
by analysing 'in particular, whether the measure presents the constituent features of a safeguard 
measure within the meaning of Article  XIX'". Türkiye requests the Panel to clarify that this argument 
was made in the context of a measure that "exhibits the  features of both a safeguard measure and 
a different type of measure" such as , in Türkiye's view,  the Section  232 measures. Türkiye further 
requests the Panel to clarify whether its reasoning in this paragraph should be understood as 
suggesting that "the assessment of the applicability of Article  XXI to the United  States ' measures 
involves only the analysis of the nexus of these measures to the United  States ' alleged national 
security concerns …[and] does not involve the analysis of whether WTO safeguard rules may be a 
more suitable applicable provision".54 The United  States  objects to Türkiye's requests, arguing that 
Türkiye does not explain why the Panel's statement of its argument is incorrect. The United  States  
further contends that Türkiye i s misconstruing the Panel's analysis as pertaining to "the applicability 
 
48 Türkiye's interim review comments, paras.  2.1-2.6. 
49 United  States ' comments on Türkiye's interim review comments, paras.  3-5. 
50 See para.  7.52 below.  
51 See paras.  7.54-7.57 below.  
52 United  States ' interim review comments, para.  8. 
53 Türkiye's comments on United  State s' interim review comments, paras.  2.8-2.10.  
54 Türkiye's interim review comments, paras.  2.7-2.10.  WT/DS561/R  
 
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  of Article  XXI [of the GATT  1994]" rather than "the applicability of Article  11.1(c) [of the Agreement 
on Safeguards]". In the United  States ' view, the text of Article  11.1(c) does no t require a panel to 
assess "whether WTO safeguard rules may be a more suitable applicable provisions", and the 
United  States  does not object to including such a clarification in the Panel's findings.55  
6.13.  The Panel has revised paragraph 7.61 and footnote 132 to explain the context in which T ürkiye 
made the relevant arguments . The Panel has also clarified its reasoning in that paragraph in response 
to Türkiye's request, taking note of the lack of objection from the United  States  in this regard.  
6.1.4   Section  7.1.2 .5.2 
6.14.  Türkiye contends that the Panel's reasoning in this section improperly defers to the 
United  States ' subjective view that the Section  232 measures are "national security measures". In 
Türkiye's view, the Panel's approach fails to "apply an objective te st that examines the nature, 
essence and constituent features of the measure, to determine whether the measure is covered by 
a particular set of WTO disciplines", and disregards "the well -established WTO principle that … the 
applicability of particular WTO  norms[] is determined by the objective substantive characteristics of 
the measure". Türkiye considers that, in the context of the present dispute, the Panel's approach 
deprives Members of their rights under Article  8 of the Agreement on Safeguards and 
Article XIX:3(a) of the GATT  1994.56 The United  States  contends that Türkiye's characterization of 
the Panel's analysis is erroneous, as the Panel did assess the substance of the Section  232 measures 
in the context of Article  11.1(c) of the Agreement on Safeg uards. According to the United  States , 
Türkiye's approach to the assessment of the Section  232 measures would allow any measure 
inconsistent with an obligation under the GATT  1994 to be " construed as a safeguard measure and 
give rise to a 'right' to 'rebalance' for another Member ", contrary to the text of the WTO  Agreement .57 
6.15.  The Panel recalls that Article  15.2 of the DSU provides that parties may only request the 
review of "precise aspects" of the Interim Report. In this regard, the Panel considers that Türkiye  
has not  indicated which precise aspects of section 7.1.2.5.2 it wishes the Panel to revi se. The Panel 
notes that Türkiye's comments appear to repeat its prior submissions on the characterization of the  
Section  232 measures , as well as the ir "object ive assessment", and raise "what it considers to be 
certain troubling implications of the Panel 's approach ". The Panel does not consider the interim 
review stage to be the appropriate phase for parties to relitigate arguments made during the panel  
proceedi ngs regarding the implications of a particular " approach " that could be adopted  by a panel .  
6.16.  In its Report, the Panel  has examined various aspects of the application (th rough tariffs and 
quotas) and non -application (through exemptions and exclusions) of th e Section  232 measures to 
determine how these measures were designed and expected to operate.58 The Panel also explained 
the relevance of evidence concerning the domestic legal basis, procedures for adoption, and 
notification of the Section  232 measures, b ased on the Panel's interpretation of Article  11.1(c) of 
the Agreement on Safeguards.59 Therefore, the Panel has already addressed Türkiye's arguments 
on the characterization of the Section  232 measures in its findings,  where appropriate.60 The Panel 
considers that its approach preserves the rights of Members under Article  8.2 of the Agreement on 
Safeguards and Article  XIX:3(a) of the GATT  1994, which, based on the Panel's interpretation, are 
conditional  upon the characterization under the Agreement on Safe guards of the measure applied 
by another Member.61  
6.17.  In the light of these considerations, the Panel declines Türkiye's  request for review of section 
7.1.2.5.2 of the Report . 
 
55 United  States ' comments on Türkiye's interim review comments, paras.  6-8. 
56 Türkiye's interim review comments, paras.  2.11-2.17.  
57 United  States ' comments on Türkiye's interim review comments, paras.  9-16.  
58 See paras.  7.67-7.78 below.  
59 See para.  7.74 below.  
60 See also paras.  7.74-7.78 of the Panel's findings addressing specific arguments raised by Türkiye.  
61 See paras.  7.41 and 7.44 below.  WT/DS561/R  
 
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  6.2  United  States ' claim under Articles II:1(a) and II:1(b) of the GATT  1994  
6.2.1   Section  7.2.3.2.2  
6.18.  Türkiye objected to the Panel's determination  in paragraphs 7.130 -7.133 of the Interim 
Report  that tariff lines 870333909011, 870333909019, 870340100000, 870340900000, 
870350000000, and 870360100000  were subject to a bound rate of 19%.62 Türkiye argued that 
bound rates for the tariff lines in question are not discernible from its GATT Schedule .63 In particular, 
Türkiye submitted that the Panel's Interim Report failed to explain how the Panel  reached its 
determination of the applicable bound rates , or how it converted or disaggregated the bindings 
expressed in  Türkiye's bound Schedule, which are expressed in terms of the Harmonized System 
Nomenclature  2002 (HS2002), into the Harmonized System Nomenclature  2017 (HS2017), in which 
Türkiye's applied tariff schedule and, thus, the additional duties measure is expressed.64 Türkiye 
requested that the Panel provide a substantiated analysis of what it considers to be the correct 
bound rate s for the six  tariff lines and why, giving weight to the fact that Türkiye's process of 
transposing its schedule from HS2002 to the Harmonized System Nomenclature  2007 (HS2007 ) is 
still ongoing .65 In Türkiye's view, t he numerous technical questions that need to be reso lved in the 
transposition  process are best discussed in the appropriate setting in the WTO, that is, in the 
interaction between Türkiye, the WTO Secretariat, and other Members, rather than by a WTO panel. 
Türkiye argued that, because its concern  affects on ly a tiny fraction of the 479 tariff lines  covered 
by the additional duties measure , the most appropriate and practical approach for the Panel would 
be to leave the bound rates for these six tariff lines unresolved.66 
6.19.  The United  States  objected to Türkiye's requests in this connection. The United  States  
disagree d that the bound rates for the tariff lines at issue are not discernible from Türkiye's bound 
Schedule, and argue d that the applied duties on certain products, based on HS2017, m ust be 
assessed in terms of the scope of Türkiye 's WTO commitments as certified in HS2002 .67 In the 
United  States ' view,  Türkiye's ongoing transposition process  is "entirely separate" from the Panel's 
assessment of Türkiye 's commitments as reflected in its  bound Schedule  as certified in HS2002 at 
the time of  the Panel's establishment .68 On the basis of these considerations, the United  States  
argued that there is no basis for Türkiye's request that the Panel leave the bound rates for these six 
tariff lines  unresolved and abstain from making a finding  on whether Türkiye has violated Article  II 
of the GATT  1994 in respect of them . Rather, the United  States  maintained that, i n accordance with 
its terms of reference, the Panel has a duty to assess the U nited States' claims under Articles II:1(a) 
and (b) with respect to these items, including by assessing Türkiye's applied duties in terms of the 
scope of its WTO commitments as certified in the HS2002 nomenclature .69 The United  States  did, 
however, suggest that the Panel clarify in its report its analysis on the bound rates for the tariff lines  
in question.70  
6.20.  To examine this issue more closely, the Panel invited the parties to provide "[a]ll  documents 
and information necessary to ascertain the bound rates applicable to the relevant tariff lines", and 
"[e]xplain the methodology that … the Panel should use to confirm Türkiye's scheduled 
commitments, if any, with respect to the relevant tariff l ines".71 On 10  July 2023, Türkiye sent a 
communication to the Panel advising that it did not intend to submit any material in response to the 
Panel's request, and asking the Panel to refrain from making findings on the bound rates applicable 
to these tarif f lines. Türkiye reiterated that its bound Schedule is currently undergoing a " highly 
technical and complex … WTO transposition process "72, and expressed the view that " deferring to 
 
62 Following the issuance of the draft descriptive part of the Panel's report, Türkiye raised concerns 
about these same tariff lines . In particular, Türkiye objected to the Panel's determinat ion that these tariff lines 
were subject to a bound rate of 19%. In Türkiye's view, the Panel should have determined that these tariff 
lines are unbound  (Türkiye's  communication (18  April 2023)) . In response to Türkiye's objection, the 
United  States  mainta ined its position that the tariff lines are subject to a bound rate of 19%  (United  States ' 
communication (25  April 2023), paras.  1 and 4) . 
63 Türkiye's interim review comments, para.  2.20.  
64 Türkiye's interim review comments, para.  2.21.  
65 Türkiye's interim review comments, paras.  2.27-2.28.  
66 Türkiye's interim review comments, para.  2.28.  
67 United  States ' comments on Türkiye's interim review comments, para.  19. 
68 United  States ' comments on T ürkiye's interim review comments, para.  20. 
69 United  States ' comments on Türkiye's interim review comments, para.  21. 
70 United  States ' comments on Türkiye's interim review comments, para.  22. 
71 Panel's communication to the parties (3  July 2023).  
72 Türkiye' s communication (10  July 2023).  WT/DS561/R  
 
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  the outcome of Türkiye's transposition process is the sole correct approac h" that the Panel could 
take on this issue .73 In Türkiye's view, a ruling  by the Panel  on the bound rate s applicable to  these 
tariff lines "would be neither appropriate, nor would assist the parties in developing a mutually 
satisfactory solution in this di spute ".74 Türkiye  expressed concern that a detailed analysis of this 
issue by the Panel, particularly at a late stage of the proceedings and against the background of an 
ongoing transposition process, " would not only necessarily prejudge the outcome of thi s 
[transposition]  process, but would also interfere with the institutional balance and the division of 
tasks between different WTO bodies ".75 
6.21.  On 24  July 2023, the United  States  submitted several documents to the Panel: (1) an Excel 
file of Türkiye's bound Schedule sourced from the WTO's Consolidated Tariff Schedule (CTS) 
Database76; (2) two documents showing Türkiye's applied rates for 2018 and 2019 in HS2017 at the 
12-digit level77; (3) a consolidated document showing graphs of HS2002 to HS2017 correlation s 
from the HS Tracker webpage, prepared by the WTO and the World Customs Organization (WCO), 
using the subheading visualizer tool78; and the relevant WCO correlation tables for HS2012 to 
HS2017  prepared by the Harmonized System Committee of the WCO.79 In its accompanying 
communication, the United  States  objected to Türkiye's suggestion that the Panel should defer to 
the outcome of Türkiye's transposition process, and submitted that the WTO transposition process 
is "entirely separate from the Panel's as sessment of Türkiye's commitments at the time of panel 
establishment, as reflected in Türkiye's WTO Schedule certified in HS2002".80 The United  States  
further emphasized that, i n accordance with the Panel's terms of reference, the Panel ha s a duty to 
asses s the U nited States ' claims under Articles II:1(a) and (b) with respect to these six tariff lines.81 
6.22.  The United  States  also elaborated on the methodology it used to ascertain the bound rates 
for the six tariff lines in question. The United  States  explained  that it isolat ed the first six digits of 
Türkiye 's applied nomenclature in HS2017 for conversion using WCO correlation tables to determine 
the equivalent bound rates in  Türkiye 's bound Schedule, which is expressed in terms of the HS2002 
classification . The United  States  submitted that,  while there were changes in nomenclature between 
HS2012 and HS2017, for each of the relevant tariff lines bound in terms of the HS2017 classification  
Türkiye is bound at 19 % for certain lines in  the HS2002  classification . In the United  States' view,  as 
Türkiye 's additional duties apply to all products  of United  States  origin  classified within the 4-digit 
heading 87.03, the Panel should find that Türkiye imposes duties in excess of its bindings to the 
extent  that goods  subject  to the additional duties measure  are within the scope of Türkiye 's bound 
commitments .82 
 
73 Türkiye's communication (10  July 2023).  
74 Türkiye's communication (10  July 2023).  
75 Türkiye's communication (10  July 2023).  
76 CTS file of Türkiye , (Exhibit USA -55). The Panel notes that  the CTS Database  is a WTO database 
contain ing the agreed maximum tariffs that WTO Members can impose on imported products from other WTO 
Members . It can only be accessed from within the WTO. See CTS Database , 
https://www.wto.org/english/tratop_e/tariffs_e/cts_e.htm  (accessed 3  October  2023).  
77 Türkiye 's 2018 Import Table , (Exhibit USA -56); Türkiye 's 201 9 Import Table , (Exhibit USA -57). 
78 Excerpts of graphs from WTO -WCO HS Tracker , (Exhibit USA -58). 
79 WCO correlation tables HS2012 to HS2017 (1) , (Exhibit USA -59); WCO correlation tables HS2012 to 
HS2017 (2) , (Exhibit USA-60). 
80 United  States ' communication (24  July 2023), para.  5. 
81 United  States ' communication (24  July 2023), para.  6. 
82 United  States ' communication (24  July 2023), para.  4. The Panel recalls the similar explanation 
provided in the United  States ' first written submission:  
Turkey, however, has not substantially updated its schedule o f tariff bindings since its accession, 
and available WTO tariff binding data in uses the 2007 revision of the Harmonized System. It is 
therefore difficult for the United  States —or any other WTO Member, for that matter —to confirm 
whether Turkey continues to  meet its commitments since the Harmonized System and Turkey 's 
domestic tariff schedule have undergone substantial revisions in recent years. To overcome this 
obstacle, the United  States  first isolated the first four or six digits of each 12 -digit tariff c ode 
subject to Turkey 's additional duties. The United  States  converted these 4 - or 6-digit HS codes 
from HS2017 to HS2007 using a conversion table published by the United Nations Statistics 
Division. The United  States  then compared these HS2007 six -digit c odes to CTS data from TDF to 
identify the highest tariff binding for all lines under each 10 -digit subheading. The United  States  
adopted this maximum bound rate at the 10 -digit level as the bound rate for all 12 -digit HTS 
lines falling under that subheadin g. For certain 12 -digit tariff codes at issue, an exact match was 
not available at the 10 -digit level. The United  States , therefore, adopted the maximum bound 
 WT/DS561/R  
 
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  6.23.  On 31  July 2023, Türkiye submitted comments on the United  States ' communication of 
24 July 2023. Türkiye repeated its view that a ruling by this Panel on the correct bound rate s of 
these tariff lines would  neither  be appropriat e, nor  assist the parties in developing a mutually 
satisfactory solution in this dispute .83 Türkiye explained that its  bound Schedule , which is bound in 
terms of the HS2002 classification,  does not contain the relevant tariff lines from Türkiye's current 
applied  tariff schedule, nor does it contain the bound tariff rates for those specific lines.  Thus, 
according to Türkiye,  these lines, and their corresponding bound tariffs, can only be determined by 
conducting the transposition process .84 In Türkiye's view, the Panel could only determine the bound 
rates applicable to these six tariff lines by " effectively … conduct [ing], in analytical terms, the WTO 
transposition procedures ".85 Türkiye expressed the view that, if the Panel were to engage in this 
activity, it would be bypassing or even undermining the complex, technical, and ongoing 
transposition pr ocess.86  
6.24.  The Panel recalls that, pursuant to Article  7.1 of the DSU, its terms of reference require it to 
examine, in the light of the relevant provisions of the covered agreements cited by the parties to 
the dispute, the matter referred to the DSB by the United  States  in document WT/DS561/2, and to 
make such findings as will assist the DSB in making the recommendations or in giving the rulings 
provided for in those agreements.87 More specifically, the Panel's task pursuant to Article  11 of the 
DSU is t o make an objective assessment of the United  States ' claims that Türkiye's additional duties 
measure is inconsistent with, inter alia , Articles II:1(a) and II:1(b) of the GATT  1994. 
6.25.  The Panel recalls that, early in these proceedings, the United  States  subm itted documents 
setting out its understanding of the bound rates applicable to the tariff lines covered by the additional 
duties measure.88 In its first written submission, Türkiye described these documents as "broadly 
accurate"89 and did not cast doubt on  the correctness of the United  States ' submissions on the 
applicable bound rates. Nevertheless, as noted above, following the issuance of the draft descriptive 
part of the Panel's report, and again during the interim review process, Türkiye raised concerns  
about the accuracy of the bound rates that the Panel had identified as applicable to tariff lines 
870333909011, 870333909019, 870340100000, 870340900000, 870350000000, and 
870360100000 . Over the course of several exchanges between the Panel and the partie s, Türkiye 
requested the Panel to refrain from determining the bound rates applicable to these six tariff lines 
in the light of the ongoing transposition process in respect of Türkiye's bound Schedule.  
6.26.   The Panel is of the view that it would not be possibl e to fulfil its duty under Article  11 of the 
DSU if it were to refrain from determining the bound rates applicable to the tariff lines subject to 
Türkiye's additional duties measure, including tariff lines 870333909011, 870333909019, 
870340100000, 87034090 0000, 870350000000, and 870360100000 , at the time the Panel was 
established. The Panel recalls that, under Article  II:7 of the GATT  1994, Members' bound schedules 
annexed to the GATT  1994 are integral part thereof. As such , the Panel understands that it is its 
responsibility, in the circumstances of this case, to determine whether the import duties for products 
falling under the tariff lines listed above are bound in Türkiye's Schedule and , if so, at what rate. 
Accordingly, the Panel rejects Türkiye's request to leave the question regarding the determination 
of the bound rates for the abovementioned six tariff lines unresolved.  
6.27.  The Panel takes note that Türkiye, in the alternative, is reque sting the Panel to provide a 
more substantiated analysis of how it reached its determination of the bound rates  applicable  to the 
six tariff lines. The United  States  does not object to the request that the Panel clarify its analysis on 
the bound rates for the items in question . The Panel has taken the opportunity to make certain 
amendments to its findings, with a view to improving the clarity of the Final Report.  
 
rate at the 6 -digit level for all of the 12 -digit tariff codes falling under the applicable 6 -digit 
heading.  
(United  States ' first written submission, fn  14.) 
83 Türkiye's communication (31  July 2023).  
84 Türkiye's communication (31  July 2023).  
85 Türkiye's communication (31  July 2023).  
86 Türkiye's communication (31  July 2023).  
87 Constitution note of the Panel, WT/DS561/3.  
88 United  States ' Table Presenting Tariff Lines and Bound Rates Affected By Türkiye's Measure from 
21 June 2018 to 14  August  2018, (Exhibit USA -7); United  States ' Table Presenting Tariff Lines and Bound 
Rates Aff ected By Türkiye's Measure beginning on 1  January  2019, (Exhibit USA -8). 
89 Türkiye's first written submission, para.  2.22.  WT/DS561/R  
 
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  6.28.  The Panel recognizes that the six tariff lines in question are expressed in terms of the HS2017  
classification , whereas Türkiye's bound Schedule is certified in terms of the HS2002  classification . 
However, in the Panel's view, this does not necessarily imply, per se , that the bound rates for the 
tariff lines at issue cannot be identified. According to the Panel, the information on the record, 
together with the WTO's Integrated Database (IDB)90, which is composed of Türkiye's own 
notifications, and the information in the CTS Database , namely the CTS file of Türkiye , enable it to 
undertake the process of determining the bound rates applicable to the relevant tariff lines, despite 
the existence of some important differences between HS2002, in which Türkiye's bound Schedule is 
expressed, and HS2017, in which Türkiye's applied tariff schedule is expressed.  
6.29.  In order to better assist the parties in the resolution of their dispute, the Panel has decided 
to provide a full analysis of the determination of the bound rates for the tariff lines in question in 
Section  7.2.3.2.2 of the Final Report. Pursuant to the a nalysis, the Panel has confirmed its findings 
with regard to tariff lines 870333909011, 870333909019 . The Panel has partially revised its findings 
with regard to tariff lines 870340100000, 870340900000, 870350000000, and 870360100000 . In 
this context, the Panel took the opportunity to re -examine the issue and to determine that it was 
not possible to establish an exact correspondence between the applied rates expressed in terms of 
the HS2017  classification , and the bound rates expressed in terms of the HS200 2 classification . In 
this respect, the Panel did however find that the bound rates in Türkiye's schedule cover, at least 
partially, some of the products falling under the tariff lines expressed in terms of the HS2017  
classification . Accordingly, the Panel has concluded that Türkiye's additional duties measure is 
inconsistent with Article  II:1(b) of the GATT  1994 with regard to tariff lines 870340100000, 
870340900000, 870350000000, and 870360100000  to the extent that they cover  products subject 
in Türkiye's bound Schedule to bound rates  of 19% or 20% .  
6.30.  Finally, the Panel recognizes that Türkiye is currently undergoing the process of transposing 
its schedule from HS2002  to HS2007. The Panel wishes to emphasize that its findings i n this dispute 
are without prejudice to the ongoing transposition process.  
7  FINDINGS  
7.1  Applicability of the relevant covered agreements  
7.1.1   Main arguments of the parties  
7.1.1.1   United  States  
7.1.  The United  States  argues that in WTO dispute settlement, a panel generally begi ns its 
assessment by examining the claims of the complainant before assessing the respondent's defence. 
For the United  States , the Panel's analysis in this case should accordingly begin with the 
United  States ' claims under Articles I and II of the GATT  1994, before addressing Türkiye's 
arguments under Article  8.2 of the Agreement on Safeguards  and Article  XIX:3(a) of the 
GATT  1994.91 
7.2.  The United  States  maintains that Article  8.2 of the Agreement on Safeguards and 
Article  XIX:3(a) of the GATT  1994 do not appl y to Türkiye's additional duties measure. In the 
United  States ' view, Article  8.2 of the Agreement on Safeguards and Article  XIX:3(a) of the 
GATT  1994 explicitly link a Member's right to suspend concessions or other obligations to the 
application or extens ion of a safeguard measure by another Member.92 According to the 
United  States , Article  8.2 of the Agreement on Safeguards allows an exporting Member affected by 
a safeguard measure to suspend concessions or other obligations under the GATT  1994 if no 
agreement concerning compensation has been reached among the Members concerned pursuant to 
Article  8 of the Agreement on Safeguards. For the United  States , the first analytical step to 
 
90 The IDB contains the official time series of tariffs applied by WTO Members and selected acceding 
countries to imports from other W TO Members.  It comprises data notified to the WTO by Members on an 
annual basis.  See World Trade Organization, Integrated Database, 
https://www.wto.org/english/tratop_e/tariffs_e/idb_e. htm (accessed 3  October  2023).  
91 United  States ' responses to Panel question No.  11, para.  22. 
92 United  States ' response to Panel question No.  29, para.  66; second written submission, 
paras.  140-142. WT/DS561/R  
 
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  determine whether Article  8.2 of the Agreement on Safeguards applies to a c ertain measure is thus 
to examine whether another Member has previously applied a safeguard measure.93  
7.3.  The United  States  argues that it has not adopted any relevant safeguard measure for the 
purposes of the present dispute.94 According to the United  States , a measure is only a safeguard 
measure when the right to apply a safeguard is invoked with notice under Article  XIX:2 o f the 
GATT  1994, which the United  States  deems a "condition precedent" for a measure to qualify as a 
safeguard measure. Without this invocation, the United  States  argues, a Member is not seeking legal 
authority under Article  XIX of  the GATT  1994 to suspend  its obligations or withdraw or modify its 
concessions.95 The United  States  acknowledges that the applicability of the Agreement on 
Safeguards and Article  XIX of the GATT  1994 is a matter that requires an "objective examination", 
and contends that whether invocation has occurred is an objective matter that a Panel may and 
must evaluate, just as it would for any other objective matter .96 The United  States  notes that , in the 
present case, it has not invoked Article  XIX, but rather Article  XXI of the GATT  1994.97  
7.4.  The United  States  argues that the relationship between the Agreement on Safeguards and 
provisions of the GATT  1994 is clarified in Article  11.1(c) of the Agreement on Safeguards.98 In this 
respect, the United  States  recalls that under Article  11.1(c), the Agreement on Safeguards does not 
apply to measures "sought, taken or maintained … pursuant to provisions of GATT  1994 other than 
Article XIX". The United  States  understands the terms of Article  11.1(c) to mean that the Agreement 
on Safeguards is inapplicable when a Member acts "under" a provision of the GATT  1994 other than 
Article  XIX.99 In support of this understanding, the United  States  refers to early draft texts of the 
Agreement on Safeguard s, which , in its view , clarify that "the availability of Article  XIX as a release 
from obligations does not constrain a Member's ability to take action pursuant to other provisions of 
the GATT  1994". The United  States  also notes that references in these ea rly draft texts to measures 
"consistent with" or "taken in conformity with" other GATT provisions were changed in the final draft 
of Article  11.1(c), which instead refers to measures sought, taken , or maintained "pursuant to" other 
GATT provisions.100 
7.5.  Accor ding to the United  States , the Section  232 measures were taken pursuant to Article  XXI 
of the GATT  1994. In this respect , and in the context of Article  11.1(c) , the United  States  refers to 
the domestic legal basis and procedures for the Section  232 measure s as well as relevant statements 
made in WTO committees.101 On this basis, the United  States  argues that the Agreement on 
Safeguards does not apply to the Section  232 measures by virtue of Article  11.1(c) of that 
Agreement. For the United  States , this also means that Article  8.2 of the Agreement on Safeguards 
and Article  XIX:3(a) of the GATT  1994 are inapplicable to Türkiye's additional duties measure.102  
7.6.  In its comments on the findings of the panel in US – Steel and Aluminium Products (Turkey) 
on the applicability of the Agreement on Safeguards and Article  XIX of the GATT  1994 to the 
Section  232 measures,  the United  States  argues that those findings may be taken into account  to 
the extent that they are persuasive. The United  States  notes the finding in  that panel report that 
the term "pursuant to" in Article  11.1(c) of the Agreement on Safeguards do es not mean consistency 
 
93 United  States ' response to Panel question No.  15, para.  27. 
94 United  States ' opening statement at the first meeting  of the Panel , para.  3. 
95 United  States ' first written submission, para.  71; opening statement at the first meeting  of the Panel , 
paras.  4 and 26. See also United  States ' response to Panel question No.  50, para.  108 (noting that in using the 
term "invocation", the United  States  refers to the exercise of an available right); response to Panel question 
No. 19, para.  42 (arguing that the "invocation" of  the right to take a safeguard measure occurs through 
providing notification and an opportunity to consult).  
96 United  States ' opening statement at the first meeting  of the Panel , para.  33; response to Panel 
question No.  100, para.  106. The United  States  further notes that while an objective examination of whether a 
Member has invoked the right to take action pursuant to Article  XIX is the "first step" in analysing the 
applicability of WTO rules on safeguard measures, invocation is not a "sufficient" condit ion for a measure to fall 
under the Agreement on Safeguards and Article  XIX of the GATT  1994 because the measure must also meet 
certain other conditions of these provisions . (United  States ' opening statement at the first meeting of the 
Panel, paras.  33 and 41) .  
97 United  States ' response to Panel question No.  25; second written submission, para.  10. 
98 United  States ' response to Panel question No.  40.  
99 United  States ' second written submission, paras.  91 and 108.  
100 United  States ' response to Panel question No.  78, paras.  30 and 32 . 
101 United  States ' second written submission, paras.  10-16; comments on Türkiye's responses to Panel 
question No s. 84 and 8 9.  
102 United  States ' second written submission, para.  91; response to Panel question No.  77.  WT/DS561/R  
 
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  with provisions of the GATT  1994 other than Article  XIX. The United  States  also regards as 
compelling that panel's assessment of the Section  232 measures  in the context of Article  11.1(c) . 
The United  States  nevertheless emphasi zes that this Panel must conduct an objective assessment 
of the matter before it pursuant to Article  11 of the DSU.103 
7.1.1.2   Türkiye  
7.7.  Türkiye argues that the Panel should  begin its analysis by assessing the threshold question of 
the applicability of the provisions cited by the parties to the measure at issue.104 In Türkiye's view, 
the law applicable to a measure must be determined before a claim of violation is assessed.105 
Accordingly, Türkiye submits that the Panel should begin its analysis by evaluating the applicability 
of Article  8.2 of the Agreement on Safeguards and Article  XIX:3(a) of the GATT  1994 to the 
additional duties measure , because if it were to find these pro visions applicable, there would be no 
basis to assess the United  States ' claims under Articles I and II of the GATT  1994.106  
7.8.  According to Türkiye, a measure under Article  8.2 of the Agreement on Safeguards must exhibit 
the following constituent features: ( i) it must respond to an underlying safeguard measure, by 
suspending concessions or other obligations; and (ii)  the measure's purpose, structure, and 
operation must indicate that it was designed as a measure taken pursuant to Article  8.2 of the 
Agreement o n Safeguards.107 In connection with the first constituent feature, Türkiye considers that 
it is not possible for the Panel to ascertain whether Türkiye's additional duties measure falls under 
Article  8.2 of the Agreement on Safeguards without determining whether an underlying safeguard 
measure exists, which it considers to be a threshold issue.108  
7.9.  Türkiye maintains that its additional duties measure possesses both constituent features 
outlined above.  First, Türkiye submits that its measure  was adopted in response to the United  States ' 
Section  232 measures, which, in Türkiye's view, are "safeguard measures in all but their name"109, 
as they meet the "definitional criteria" of safeguard measures.110 Türkiye ar gues that the Section  232 
measures "suspend, in whole or in part, a GATT obligation or withdraw or modify a GATT concession" 
by imposing on aluminium and steel products duties inconsistent with Articles II:1(a) and II:1(b) of 
the GATT  1994, and quantitativ e limitations inconsistent with Article  XI:1 of the GATT  1994.111 
Türkiye also contends that the Section  232 measures pursue the "specific objective" of preventing 
or remedying serious injury to domestic industries of the United  States , which is the "most c entral" 
aspect of these measures.112 In support of this contention, Türkiye refers to several legal instruments 
issued by the United  States ' authorities, including the reports in the investigations that led to the 
adoption of the Section  232 measures and th e proclamations providing for the Section  232 
measures.113 For Türkiye, the examination of whether a measure is a safeguard measure should be 
based on its objective features114, including its design, structure , and operation.115 
7.10.  Second, Türkiye maintains that  the purpose, structure, and operation of its additional duties 
measure indicate a "clear link" between the United  States ' Section  232 measures on steel and 
aluminium, on the one hand, and Türkiye's measure, on the other hand. In Türkiye's view, it is 
illustrative in this respect that its additional duties measure has reflected the level of suspension in 
the United  States ' Section  232 measures.116 
7.11.  In the light of this characterization of its measure under  Article  8.2 of the Agreement on 
Safeguards and Article  XIX:3(a) of the GATT  1994, Türkiye maintains that the application of 
 
103 United States ' communications (20 January and 10  February  2023).  
104 Türkiye 's response to Panel question No.  11, second written submission, para.  2.8. 
105 Türkiye 's second written submission, para.  2.19. 
106 Türkiye 's second written submission, para.  2.23; opening statement at the first meeting  of the Panel , 
paras. 23-26. 
107 Türkiye 's response to Panel question No.  27. 
108 Türkiye 's response to Panel question No.  15(b). 
109 Türkiye 's second written submission, para.  2.26. 
110 Türkiye's first written submission, par as. 4.45-4.46. 
111 Türkiye's first written submission, para s. 4.45 and 4.49. 
112 Türkiye's first written submission, para.  4.50.  
113 Türkiye's first written submission, paras.  4.52-4.62. 
114 Türkiye's first written submission, para.  4.19.  
115 Türkiye's response to Panel question No s. 18 and 58.  
116 Türkiye 's second written submission, para.  2.28. WT/DS561/R  
 
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  Articles  I and II of the GATT  1994 is "suspended" in respect of its measure , and that, therefore, the 
Panel should reject the United  States ' claims as they are based on "improper ", "inapplicable " legal 
provisions.117 Türkiye further notes that the United  States  has not made any claims under 
Article  XIX:3(a) of the GATT  1994 or Article  8.2 of the Agreement on Safeguards.118 
7.12.  Türkiye agrees with the U nited States  that there is no right to impose "rebalancing measures" 
under Article  8.2 of the Agreement on Safeguards or Article  XIX:3(a) of the GATT  1994 in response 
to a measure falling under Article  11.1(c) of the Agreement on Safeguards.119 In this rega rd, Türkiye 
notes that Article  11.1 of the Agreement on Safeguards draws a distinction between "emergency 
action[s] on imports … as set forth in Article  XIX of GATT  1994" and "measures sought, taken or 
maintained by a Member pursuant to provisions of GATT  1994 other than Article  XIX"120, the latter 
of which fall outside the scope of the Agreement on Safeguards under Article  11.1(c).121 At the same 
time, for Türkiye, a measure falling under Article  11.1(c) of the Agreement on Safeguards must be 
consistent with  a provision of the GATT  1994 other than Article  XIX.122 Noting the United  States ' 
argument that it has adopted the Section  232 measures pursuant to Article  XXI of the GATT  1994, 
Türkiye argues that the Section  232 measures can only be considered to be "pursuant to" Article  XXI 
if they comply with the requirements of that provision.123 In Türkiye's view, however, the 
United  States has not justified its Section  232 measures under Article  XXI.124  
7.13.  Türkiye further maintains that whether a measure falls within  the scope of Articles 11.1(a) or 
11.1(c) of the Agreement on Safeguards must be determined objectively by analysing the design, 
structure, and expected operation of the measure, and "in particular whether the measure possesses 
the constituent features of a safeguard measure … within the meaning of Article XIX".125 Türkiye 
argues that giving effect to Article  11.1(c) does not require that the subjective intent of a regulating 
Member should be decisive rather than the objective design of a measure, and that t he intent of a 
Member is only relevant to the extent that it is "embodied" in the objective features of the 
measure.126 
7.14.  In its comments on the findings by the panel in US – Steel and Aluminium Products (Turkey) 
concerning the applicability of the WTO safegu ards regime to the Section  232 measures, Türkiye 
argues that this Panel is not bound by either the factual or the legal findings of another panel, and 
must conduct its own objective assessment of the matter before it. Further, Türkiye agrees with the 
legal standard articulated in that panel report for the characterization of measures under the 
Agreement on Safeguards, but not  with that panel's application of the legal standard to the facts, 
which , in Türkiye's view, assigned excessive weight to the United  States' subjective designation and 
labelling of the Section  232 measures.127 
7.1.2   Analysis  by the Panel  
7.1.2.1   Introduction  
7.15.  The parties hold diverging views on which covered agreement applies to the measure at issue 
in this dispute. On the one hand, Türkiye argues that its additional duties measure is subject to 
Article  8.2 of the Agreement on Safeguards and Article  XIX:3(a) of the GATT  1994, and therefore 
that the application of Articles I and II of the GATT  1994 to the measure is suspended.128 On the 
other  hand, the United  States  maintains that the challenged measure is subject to Articles I and II 
 
117 Türkiye 's second written submission, para.  2.52. 
118 Türkiye 's second written submission, para.  1.6. 
119 Türkiye's response to Panel question No.  77. 
120 Türkiye's response to Panel question No.  23. 
121 Türkiye's response to Panel question No.  23; opening statement at the second meeting  of the Panel , 
para. 2.29.  
122 Türkiye's response to Panel question No s. 23 and 78. According to Türkiye, this is supported by t he 
Spanish version of Article  11.1(c), which uses the term " de conformidad con ". (Ibid.) 
123 Türkiye's response to Panel question No.  88. 
124 Türkiye's comments on the United  States ' response to Panel question No.  78. 
125 Türkiye's second written submission, par a. 2.41; response to Panel question No.  82. 
126 Türkiye's opening statement at the second meeting  of the Panel , para.  2.29. 
127 Türkiye's communications (20 January and 10  February  2023). 
128 Türkiye's first written submission, para s. 1.5-1.9; opening statement at the first meeting of the 
Panel, para.  5. WT/DS561/R  
 
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  of the GATT  1994, and that Article  8.2 of the Agreement on Safeguards and Article  XIX:3(a) of the 
GATT  1994 are not applicable.129  
7.16.  The Panel will begin by setting out its u nderstanding of the provisions in the DSU concerning 
the assessment of the applicability of the relevant covered agreements in a dispute. The Panel will 
then decide the order in which it will conduct its analysis. Specifically, the Panel will decide whethe r 
it will begin with a review of the United  States ' claims under Articles I and II of the GATT  1994 before 
examining Türkiye's argument that the application of the obligations and concessions under those 
two provisions is suspended within the meaning of Article 8.2 of the Agreement on Safeguards and 
Article  XIX:3(a) of the GATT  1994, or vice versa.  
7.1.2.2   The Panel's duty to assess the applicability of the relevant covered agreements  
7.17.  Article  11 of the DSU requires a panel to make "an objective assessment of the ma tter before 
it, including an objective assessment of the applicability of and conformity with the relevant covered 
agreements". This requirement applies in all disputes, including those where the parties agree on 
which relevant covered agreements apply to the measures at issue.130 In the specific circumstances 
of this case, the requirement to make an objective assessment of the applicability of the relevant 
covered agreements is of particular significance given the parties' disagreement.  
7.18.  Under Article  7.2 o f the DSU, a panel is required to address "the relevant provisions in any 
covered agreement or agreements cited by the parties to the dispute". In this dispute, while the 
United  States  has raised claims under Articles I and II of the GATT  1994 in its panel  request, Türkiye 
has identified Article  8.2 of the Agreement on Safeguards and Article  XIX:3(a) of the GATT  1994 as 
the provisions applicable to the additional duties measure. Both parties have made extensive 
arguments regarding the applicability (or non -applicability) of these provisions to the measure at 
issue. The Panel therefore considers that all of these provisions are "relevant" within the meaning 
of Article  7.2 of the DSU and must be addressed in the Panel's analysis.  
7.19.  Reading Articles 7.2 and 11 of  the DSU together, the Panel is of the view that, in making an 
objective assessment of the matter before it, it must determine which provisions of the covered 
agreements apply to Türkiye's additional duties measure. To examine the United  States ' claims 
under Articles I and II of the GATT  1994 without determining their relationship with other provisions 
raised by Türkiye (specifically, Article  8.2 of the Agreement on Safeguards and Article  XIX:3(a) of 
the GATT  1994) would overlook a disputed issue between th e parties and not assist the DSB "in 
making the recommendations or in giving the rulings provided for in the covered agreements", as 
prescribed in Article  11 of the DSU. The Panel further considers that this would be at odds with the 
aim of the dispute set tlement mechanism, as set out in Article  3.7 of the DSU, of securing a positive 
solution to a dispute.  
7.20.  The Panel is mindful of the limits of its authority when assessing the applicability of the 
relevant covered agreements to the measure at issue in this d ispute. Specifically, examining the 
applicability of Article  8.2 of the Agreement on Safeguards and Article  XIX:3(a) of the GATT  1994 to 
Türkiye's additional duties measure does not imply that the Panel may make findings on the 
consistency of the additiona l duties measure with those two provisions. While Articles 11 and 7.2 of 
the DSU require the Panel to determine the provisions applicable to the additional duties measure, 
the Panel can only make findings on the claims raised and provisions listed in the U nited States ' 
panel request131, which does not include Article  8.2 of the Agreement on Safeguards and 
Article  XIX:3(a) of the GATT  1994. Accordingly, the Panel will only consider Article  8.2 of the 
Agreement on Safeguards and Article  XIX:3(a) of the GATT  1994 to the extent necessary to 
determine the applicability of these provisions to the measure at issue.  
 
129 United  States ' first written submission, para s. 38 and 55; second written submission, para s. 20 
and 91. 
130 Appellate  Body Report, Indonesia – Iron or Steel Products , para.  5.32.  
131 A panel making findings on provisions that are not listed in the panel request would be acting ultra 
petita , and thus inconsistently with Article  11 of the DSU.  Appellate  Body Report, Chile – Price Band System , 
para. 173. WT/DS561/R  
 
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  7.1.2.3   Order of analysis  
7.21.  The Panel now turns to consider the order in which to conduct its analysis. One possibility 
would be to begin by examining the United  States ' claims under Articles I and II of the GATT  1994, 
and then proceeding to assess the applicability of Article  8.2 of the Agreement on Safeguards and 
Article  XIX:3(a) of the GATT  1994 to Türkiye's additional duties measur e. The United  States  favour s 
this approach.132 Alternatively, the Panel could begin by examining the applicability of Article  8.2 of 
the Agreement on Safeguards and Article  XIX:3(a) of the GATT  1994. Under this approach, the Panel 
would only examine the Uni ted States ' claims under Articles I and II of the GATT  1994 if it were to 
conclude that Article  8.2 of the Agreement on Safeguards and Article  XIX:3(a) of the GATT  1994 do 
not apply  to the additional duties measure . Türkiye and several third parties are in  favour of this 
option.133 
7.22.  Neither the DSU nor the relevant provisions of the GATT  1994 or the Agreement on 
Safeguards prescribe a mandatory order of analysis that must be followed in addressing the issues 
raised in this dispute. The Panel thus has discreti on to structure its order of analysis in the way it 
considers most appropriate, provided that its choice is in line with its mandate and functions as laid 
down in the DSU.134  
7.23.  In the specific circumstances of this case, the Panel considers that beginning wi th the question 
of whether Article  8.2 of the Agreement on Safeguards and Article  XIX:3(a) of the GATT  1994 apply 
to Türkiye's additional duties measure is the most appropriate course of action, for the reasons that 
follow.  
7.24.  Article  XIX:3(a) of the GATT  1994 allows Members to "suspend … the application … of … 
substantially equivalent concessions or other obligations under this Agreement" to the trade of 
another Member taking action under Article  XIX:1 of the GATT  1994. Article  8.2 of the Agreement 
on Safeguards, which clarifies the disciplines of Article  XIX:3(a) of the GATT  1994135, similarly allows 
Members, under certain conditions, to "suspend … the application of substantially equivalent 
concessions or other obligations under GATT 1994" to the trade of another Member applying a 
safeguard measure. Measures falling within the scope of Article  8.2 of the Agreement on Safeguards 
and Article  XIX:3(a) of the GATT  1994 thus "suspend" the application of concessions or other 
obligations u nder the GATT  1994. In the context of these two provisions, the Panel understands the 
notion of a suspension of concessions or other obligations to mean that, provided certain conditions 
are met, Members affected by the application of a safeguard measure m ay temporarily  lift the 
application of tariff concessions or other GATT obligations vis-à-vis the Member applying the 
safeguard measure. In such cases, measures falling within the scope of Article  8.2 of the Agreement 
on Safeguards and Article  XIX:3(a) of the GATT  1994 would not simultaneously be subject to GATT 
rules governing tariff concessions or other obligations that have been suspended.  
7.25.  The Panel therefore considers it most logical to begin its analysis by first determining whether 
Article  8.2 of the  Agreement on Safeguards and Article  XIX:3(a) of the GATT  1994 apply to Türkiye's 
additional duties measure, suspending concessions and obligations under Articles I and II of the 
GATT  1994. If that were the case, the Panel would have to conclude its analys is with a finding that 
Articles I and II of the GATT  1994 do not apply to Türkiye's additional duties measure. If, however, 
the Panel were to find that Article  8.2 of the Agreement on Safeguards and Article  XIX:3(a) of the 
GATT  1994 do not apply to the mea sure at issue, this would mean that the application of Articles I 
and II of the GATT  1994 has not been suspended. Consequently, the Panel would need to review 
the consistency of Türkiye's additional duties measure with the latter set of provisions, as per the 
claims raised by the United  States . 
7.26.  Beginning with an assessment of the applicability of Article  8.2 of the Agreement on 
Safeguards and Article  XIX:3(a) of the GATT  1994 has the benefit of allowing the Panel to examine 
 
132 United  States ' response to Panel question No.  11. 
133 Türkiye's response to Panel question No.  11; Canada's response to Panel question No.  3(a); China's 
response to Panel question No.  3(a); European  Union 's response to Panel question No.  3(a); Japan's response 
to Panel question No.  3(a); Norway's response to Panel question No.  3; Russia n Federation 's response to Panel 
question No.  3; Switzerland's response to Panel question No.  3; Ukraine's third -party submission, para.  15. 
134 See Appellate  Body Report, Colombia – Textiles , para.  5.20.  
135 Agreement on Safeguards , preamble, second recital : "Recognizing  the need to clarify and reinforce 
the disciplines of GATT  1994, and specifically those of its Article  XIX (Emergency Action on Imports of 
Particular Products ) …". WT/DS561/R  
 
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  the United  States ' claims under A rticles I and II of the GATT  1994 only to the extent necessary, that 
is, only if the Panel determines that those provisions actually apply to Türkiye's additional duties 
measure. Otherwise, the Panel would need to make interim findings under Articles I and  II of the 
GATT  1994, which would become moot if the Panel subsequently were to find that the application of 
those provisions to the additional duties measure is suspended under Article  8.2 of the Agreement 
on Safeguards and Article  XIX:3(a) of the GATT  1994.  
7.27.  Accordingly, the Panel will proceed to examine whether Article  8.2 of the Agreement on 
Safeguards and Article  XIX:3(a) of the GATT  1994 apply to the additional duties measure. The Panel 
commences by interpreting these provisions in accordance with the  customary rules of interpretation 
of public international law.136 
7.1.2.4   Interpretation of Article  8.2 of the Agreement on Safeguards and Article  XIX:3(a) 
of the GATT  1994  
7.28.  Article  8.2 of the Agreement on Safeguards ( Level of Concessions or Other Obligations ) reads:  
If no agreement is reached within 30 days in the consultations under paragraph 3 of 
Article  12, then the affected exporting Members shall be free, not later than 90 days 
after the measure is applied, to suspend, upon the expiration of 3 0 days from the day 
on which written notice of such suspension is received by the Council for Trade in Goods, 
the application of substantially equivalent concessions or other obligations under 
GATT  1994, to the trade of the Member applying the safeguard me asure, the suspension 
of which the Council for Trade in Goods does not disapprove.  
7.29.  Article  XIX:3(a) of the GATT  1994 (Emergency Action on Imports of Particular Products ) 
reads:  
If agreement among the interested contracting parties with respect to the actio n is not 
reached, the contracting party which proposes to take or continue the action shall, 
nevertheless, be free to do so, and if such action is taken or continued, the affected 
contracting parties shall then be free, not later than ninety days after suc h action is 
taken, to suspend, upon the expiration of thirty days from the day on which written 
notice of such suspension is received by the CONTRACTING PARTIES, the application to 
the trade of the contracting party taking such action, or, in the case envi saged in 
paragraph 1 (b) of this Article, to the trade of the contracting party requesting such 
action, of such substantially equivalent concessions or other obligations under this 
Agreement the suspension of which the CONTRACTING PARTIES do not disapprove . 
7.30.  Article  8.2 of the Agreement on Safeguards set s out the right of a Member "to suspend … 
concessions or other obligations under GATT  1994 [] to the trade of" another Member, provided that 
certain conditions are met. The exercise of this right is part of a  process laid down in Article  8 of the 
Agreement on Safeguards designed to preserve the level of concessions and other obligations 
existing under the GATT  1994. 
7.31.  In this respect, Article  8.1 of the Agreement on Safeguards requires Members proposing to 
apply  a safeguard measure (or seeking to extend its application) to endeavour to maintain, vis-à-vis 
other Members affected by that safeguard measure, a level of concessions or other obligations 
substantially equivalent to that existing under the GATT  1994. To this effect, Article  8.1 of the 
Agreement on Safeguards establishes that the Members concerned may agree on adequate means 
of trade compensation for the adverse effects of the safeguard measure on their trade. Article  8.2 
of the Agreement on Safeguards the n stipulates that, if the Member applying the safeguard measure 
and the affected exporting Members fail to reach an agreement on adequate means of trade 
compensation, the affected Members shall have the right, subject to certain conditions, to suspend 
the application of substantially equivalent concessions or other obligations under the GATT  1994 to 
the trade of the Member applying the safeguard measure. Next, Article  8.3 of the Agreement on 
Safeguards sets out certain temporal and substantive limitations o n the exercise of the right to 
 
136 Article  3.2 of the DSU.  WT/DS561/R  
 
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  suspend concessions or other obligations under the GATT  1994 vis-à-vis the Member applying a 
safeguard measure.  
7.32.  The Panel considers that the ordinary meaning of the terms of Article  8.2 of the Agreement 
on Safeguards plainly links the right to suspend concessions or other obligations under the 
GATT  1994 to the application of a safeguard measure by another Member. Indeed, the provision 
stipulates that affected exporting Members "shall be free … to suspend … the application of 
substantially equivalent concessions or other obligations … to the trade of the Member applying the 
safeguard measure ".137 In the Panel's view, this language indicates that the right under Article  8.2 
of the Agreement on Safeguards becomes available only to rebalance the adverse effects of a 
safeguard measure. The French and Spanish versions of Article  8.2 of the Agreement on Safeguards 
equally reserve the right provided in that provision only to Members affected by a " mesure de 
sauvegarde " or a " medida de sa lvaguardia ".138  
7.33.  An examination of the text of Article  8.2 of the Agreement on Safeguards shows that the right 
to suspend concessions or other obligations under the GATT  1994 established in this provision is 
subject to several  requirements, including  that: (a) no agreement on adequate means of trade 
compensation maintaining a level of concessions or other obligations substantially equivalent to 
those existing under the GATT  1994 is reached between the Member proposing to apply or extend 
a safeguard measure and other Members having a substantial interest as exporters of the product 
concerned, within 30 days from the application of the safeguard measure; (b) not more than 90 
days have passed from the application of the safeguard measure; and (c) a Member  affected by a 
safeguard measure suspends the application of "substantially equivalent" concessions or other 
obligations to the trade of the Member applying the safeguard measure. The Panel observes that all 
of these requirements are contingent upon a safe guard measure being applied or extended by 
another Member.139  
7.34.  The immediate context of Article  8.2 of the Agreement on Safeguards supports the Panel's 
understanding. Article  8 of the Agreement on Safeguards refers to "safeguard measure" five times, 
and to "such a measure" twice. Only in one case does Article  8 refer to "the measure", without 
further qualification, at the end of the final sentence of paragraph 1. There, the provision stipulates 
that the Members concerned may agree on adequate means of trade compensation for the adverse 
effects of "the measure" on their trade. For the Panel, this can only be read as referring to the 
"safeguard measure" mentioned at the beginning of the paragraph, which is the basis for the 
negotiations and eventual agreement f oreseen in this final sentence. This understanding is consistent 
with the logic and the structure of Article  8 of the Agreement on Safeguards as a whole, which, as 
noted above, envisages a process that is premised on the adoption or extension of a safeguar d 
measure. All other steps outlined in Article  8 of the Agreement on Safeguards flow from, and depend 
on, this premise. The immediate context of Article  8.2 of the Agreement on Safeguards thus 
underscores that a safeguard measure is a necessary pre conditio n and the basis for the rights and 
procedures laid out therein.  
7.35.  The Panel's understanding of Article  8.2 of the Agreement on Safeguards is also consistent 
with the broader context of the Agreement on Safeguards. In this connection, the Panel considers 
Article 11.1 of the Agreement on Safeguards ( Prohibition and Elimination of Certain Measures ) to be 
particularly relevant. This provision establishes certain rights and obligations for Members depending 
on the characterization of a measure under the Agreement  on Safeguards. First, Article  11.1(a) 
stipulates that Members "shall not take or seek any emergency action on imports of particular 
products as set forth in Article  XIX of GATT  1994 unless such action conforms with the provisions of 
that Article  applied i n accordance with this Agreement". This provision must be read in conjunction 
with Article  1 of the Agreement on Safeguards, according to which the Agreement "establishes rules 
for the application of safeguard measures which shall be understood to mean tho se measures 
provided for in Article  XIX of GATT  1994". Thus, Article  11.1(a) of the Agreement on Safeguards 
 
137 Emphasis added.  
138 Under Article  33(1) of the Vienna  Convention , "[w]hen a treaty has been authenticated in two or 
more languages, the text is equally authoritative in each language, unless the  treaty provides or the parties 
agree that, in case of divergence, a particular text shall prevail".  
139 A fourth requirement in Article  8.2 of the Agreement on Safeguards envisages that the right to 
suspend concessions or other obligations be exercised upon  expiration of 30 days  from the day on which 
written notice of the proposed suspension of concessions or other obligations  is received by the Council for 
Trade in Goods, provided that the latter does not disapprove  it. WT/DS561/R  
 
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  establishes that Members can take or seek safeguard measures, which must conform with Article  XIX 
of the GATT  1994 applied in accordance with the Ag reement on Safeguards.  
7.36.  Under Article  11.1(b), Members shall not seek, take , or maintain "any voluntary export 
restraints, orderly marketing arrangements or any other similar measures on the export or the 
import side". To the extent that any such measures w ere in effect on the date of entry into force of 
the WTO  Agreement , they should have either been phased out within a short time -frame after the 
entry into force of the Agreement on Safeguards or brought into conformity with the provisions 
thereof.  
7.37.  Finally, Article  11.1(c) provides that the Agreement on Safeguards does not apply to 
"measures sought, taken or maintained by a Member pursuant to provisions of GATT  1994 other 
than Article XIX, and Multilateral Trade Agreements in Annex 1A other than this  Agreement, or 
pursuant to protocols and agreements or arrangements concluded within the framework of 
GATT  1994".  
7.38.  Article  11.1 of the Agreement on Safeguards conditions the disciplines applicable to measures 
upon their characterization under the three subp aragraphs of that provision. If a Member is seeking 
or taking a safeguard measure, that Member is subject to several  obligations under the Agreement 
on Safeguards. This includes endeavouring "to maintain a substantially equivalent level of 
concessions or o ther obligations to that existing under the GATT  1994 between it and exporting 
Members" affected by the safeguard measure as provided in Article  8.1. Relatedly, Members affected 
by a safeguard measure have a right to suspend concessions or other obligation s in response to that 
measure under the terms of Article  8.2 of the Agreement on Safeguards. This right is, however, not 
available if the underlying measure has a different characterization under the subparagraphs of 
Article  11.1 of the Agreement on Safeguards, and is correspondingly subject to different legal 
disciplines.  
7.39.  Reading the multiple references to a "safeguard measure" in Article  8 of the Agreement on 
Safeguards in this broader context, the Panel considers that the characterization of an un derlying 
measure as a safeguard measure or otherwise is a necessary analytical step in determining the 
applicability or inapplicability of Article  8.2 of the Agreement on Safeguards.  
7.40.  The Panel further considers this understanding to be consistent with the  object and purpose 
of the Agreement on Safeguards. The second recital of the Agreement's preamble recognizes "the 
need to clarify and reinforce the disciplines of GATT  1994, and specifically those of its Article  XIX 
(Emergency Action on Imports of Particu lar Products ), to re -establish multilateral control over 
safeguards and eliminate measures that escape such control". The preamble thus confirms the 
distinct treatment of measures depending on their characterization under the Agreement on 
Safeguards. In th e Panel's view, such distinction is therefore central to the structure and logic of the 
entire Agreement on Safeguards and should inform the reading of its provisions. In particular, this 
suggests to the Panel that Article  8.2 of the Agreement on Safeguard s can only be interpreted as 
concerning rights and obligations related to or flowing from safeguard measures, which are the 
measures over which the Agreement on Safeguards establishes multilateral control.  
7.41.  Based on the foregoing, the Panel considers that t he ordinary meaning of the terms of 
Article  8.2 of the Agreement on Safeguards, in their context and in the light of the object and purpose 
of the Agreement on Safeguards, conditions the right to suspend concessions or other obligations 
under the GATT  1994 upon a "safeguard measure" being applied by another Member.  
7.42.  Article  XIX:3(a) of the GATT  1994 is the other relevant provision for the purposes of the 
Panel's assessment. According to Article  XIX:3(a), a Member affected by "the action" taken or 
continued b y another Member under paragraph 1 of the same provision shall be free, subject to 
certain conditions, to suspend the application of GATT concessions or obligations to the trade of the 
Member taking such action. Article  XIX:3(a) of the GATT  1994 also provi des that the GATT 
concessions or obligations so suspended must be "substantially equivalent to" the "action" envisaged 
under Article  XIX:1 of the GATT  1994.  
7.43.  Under Article  XIX:3(a) of the GATT  1994, for a Member to have a right to suspend concessions 
or other obligations under the GATT  1994, another Member must have taken or continued an "action" 
under Article  XIX:1 of the GATT  1994. According to Article  1 of the Agreement on Safeguards, WT/DS561/R  
 
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  measures provided for in Article  XIX of the GATT  1994 shall be underst ood to be safeguard 
measures. It follows that, like Article  8.2 of the Agreement on Safeguards, Article  XIX:3(a) of the 
GATT  1994 establishes a conditional right to suspend concessions or other obligations under the 
GATT  1994 in response to a safeguard mea sure. Thus, in the Panel's view, the application of a 
safeguard measure is a necessary precondition under both Article  8.2 of the Agreement on 
Safeguards and Article  XIX:3(a) of the GATT  1994 for this right to become available to affected 
Members.  
7.44.  The Pane l notes the parties' agreement that, in the absence of a safeguard measure applied 
by a Member, another Member would not have the right, under Article  8.2 of the Agreement on 
Safeguards and Article  XIX:3(a) of the GATT  1994, to suspend concessions or other  obligations 
under the GATT  1994.140 The Panel's interpretation of those two provisions, as set out above, 
confirms this. Accordingly, based on its understanding of the text, logic, and structure of the relevant 
provisions of the Agreement on Safeguards and  the GATT  1994, the Panel considers that whether 
Article  8.2 of the Agreement on Safeguards and Article  XIX:3(a) of the GATT  1994 apply to Türkiye's 
additional duties measure depends on the characterization under the Agreement on Safeguards of 
the underlying measure adopted by the United  States .  
7.1.2.5   Whether Article  8.2 of the Agreement on Safeguards and Article  XIX:3(a) of the 
GATT  1994 apply to Türkiye's additional duties measure  
7.45.  The United  States ' measures, in response to which Türkiye has imposed the additional duties 
measure, are the measures "Adjusting Imports of Aluminum" and "Adjusting Imports of Steel" into 
the United  States  (the Section  232 measures).141 Both parties have submitted arguments and 
evidence concerning the background, legal basis, and application of these measures.142  
7.46.  In the light of its earlier conclusion that the applicability of Article  8.2 of the Agreement on 
Safeguards and Article  XIX:3(a) of the GATT  1994 to the additional duties measure depends on 
whether a Member has applied a safeguard measure, the Panel does not consider that it can make 
an objective assessment of the applicability of the relevant provisions  of the covered agreements to 
the measure at issue in this dispute without reviewing the characterization of  the Section  232 
measures under the Agreement on Safeguards. In the Panel's view, the examination of the 
arguments and evidence submitted by the par ties in this connection is essential to secure a positive 
solution to the present dispute. The Panel will accordingly proceed to examine the characterization 
of the Section  232 measures under the Agreement on Safeguards.  
7.47.  The Panel recalls that Article  11.1 of the Agreement on Safeguards stipulates the disciplines 
that apply to a measure depending upon its characterization under that provision.143 Türkiye argues 
that the Section  232 measures are "safeguard measures" under the Agreement on Safeguards, 
which m ust conform to the disciplines set out in Article  11.1(a) of that Agreement (namely, 
Article  XIX of the GATT  1994 applied in accordance with the Agreement on Safeguards). In the 
United  States ' view, the Section  232 measures are "measures sought, taken or m aintained … 
pursuant to provisions of GATT  1994 other than Article  XIX" within the meaning of Article  11.1(c) of 
the Agreement on Safeguards, to which that Agreement "does not apply".  
7.48.  The Panel observes that, in relation to the applicability of the Agreem ent on Safeguards, both 
parties agree that Article  11.1(c) excludes certain measures from the scope of application of that 
Agreement.144 They further acknowledge that Members affected by measures to which the 
Agreement on Safeguards does not apply do not ha ve the right to take action under Article  8.2 of 
the Agreement on Safeguards and Article  XIX:3(a) of the GATT  1994.145 The point of contention 
 
140 United  States ' second written submi ssion, paras.  140-142; Türkiye's response to Panel question 
Nos. 15 and 27. 
141 Türkiye's first written submission, para.  1.2; opening statement at the first meeting  of the Panel , 
para. 3. The Panel notes that the applicability of the Agreement on Safeguards  and Article  XIX of the 
GATT  1994 to the United  States ' Section  232 measures was also examined by the panel in US – Steel and 
Aluminium Products (Turkey) . Recalling its duty under Article  11 of the DSU, this Panel will make its own 
objective assessment of the characterization of the Section  232 measures and will refer to the reasoning of 
that panel to the extent that it finds the same relevant and persuasive.  
142 United  States ' second written submission, section II; Türkiye's first written submi ssion, section 4.1.4.  
143 See para.  7.38 above.  
144 United  States ' response to Panel question No.  77; Türkiye's response to Panel question No.  77. 
145 United  States ' resp onse to Panel question No.  77; Türkiye's response to Panel question No.  77. WT/DS561/R  
 
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  between the parties, based on their differing interpretations of Article  11.1(c) of the Agreement on 
Safeguards146, is whether the Section  232 measures are measures of the kind described in 
Article  11.1(c).  
7.49.  The Panel will begin its analysis by setting out its understanding of Article  11.1(c) of the 
Agreement on Safeguards , before turning to consider the S ection  232 measures in the light of its 
interpretation of that provision.  
7.1.2.5.1   Interpretation of Article  11.1(c) of the Agreement on Safeguards  
7.50.  Article  11.1 of the Agreement on Safeguards ( Prohibition and Elimination of Certain Measures ) 
reads:  
1. (a) A Membe r shall not take or seek any emergency action on imports of particular 
products as set forth in Article  XIX of GATT  1994 unless such action conforms with the 
provisions of that Article  applied in accordance with this Agreement.  
(b) Furthermore, a Member sh all not seek, take or maintain any voluntary export 
restraints, orderly marketing arrangements or any other similar measures on the export 
or the import side.[3,4] These include actions taken by a single Member as well as actions 
under agreements, arrangem ents and understandings entered into by two or more 
Members. Any such measure in effect on the date of entry into force of the 
WTO Agreement  shall be brought into conformity with this Agreement or phased out in 
accordance with paragraph 2.  
(c) This Agreement does not apply to measures sought, taken or maintained by a 
Member pursuant to provisions of GATT  1994 other than Article  XIX, and Multilateral 
Trade Agreements in Annex  1A other than this Agreement, or pursuant to protocols and 
agreemen ts or arrangements concluded within the framework of GATT  1994. 
3 An import quota applied as a safeguard measure in conformity with the relevant provisions of 
GATT  1994 and this Agreement may, by mutual agreement, be administered by the exporting 
Member.  
4 Examples of similar measures include export moderation, export -price or import -price monitoring 
systems, export or import surveillance, compulsory import cartels and discretionary export or 
import licensing schemes, any of which afford protection.  
7.51.  The Pan el understands the phrase "[t]his Agreement does not apply" in Article  11.1(c) to 
explicitly limit the scope of application of the Agreement on Safeguards by carving out "measures 
sought, taken or maintained by a Member pursuant to provisions of GATT  1994 other than 
Article  XIX" from the purview of that Agreement.147 This is also recogni zed in the French and Spanish 
texts of Article  11.1(c), in which the expressions " ne s'applique pas " and " no es aplicable ", 
respectively , signify that the Agreement on Safeguards is inapplicable to certain " mesures " or 
"medidas ". Further, the Panel sees no  indication in the text of the Agreement on Safeguards that 
the carve -out in Article  11.1(c) is subject to or qualified by other provisions in that Agreement. The 
Panel thus understands that all disciplines of the Agreement on Safeguards are inapplicable t o 
measures of the kind described in Article  11.1(c) of the Agreement, including Article  8.2 of the 
Agreement on Safeguards, which foresees that certain rights are available only to Members affected 
by safeguard measures. Moreover, the Panel does not consid er that Article  XIX:3(a) of the 
GATT  1994 provides Members with  a right to suspend concessions or other obligations under the 
 
146 For Türkiye, a measure under Article  11.1(c) of the Agreement on Safeguards must be consistent 
with a provision of the GATT  1994 other than Article  XIX to be considered "pursuant to" such other provision . 
(Türkiye's response to Panel question No.  78). The United  States  does not consider that Article  11.1(c) refers 
to a measure in conformity with provisions of the GATT  1994 other than Article  XIX, and notes the use of the 
term "pursuant to" in that provision as opposed to "conforms with" used in Article  11.1(a) . (United  States ' 
comments on Türkiye's response to Panel question No.  78. See also United  States ' second written submission, 
para. 115 (arguing that Article  11.1(c) precludes the application of the Agreement on Safeguards to any 
measure sought, taken , or maintained "under" a provision of the GATT  1994 other than Article  XIX)).  
147 The Panel notes that, as per the terms of Article  11.1(c), the Agreement on Safeguards al so does not 
apply to measures sought, taken , or maintained pursuant to " Multilateral Trade Agreements in Annex  1A other 
than this Agreement " or pursuant to "protocols and agreements or arrangements concluded within the 
framework of GATT  1994".  WT/DS561/R  
 
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  GATT  1994 in response to measures that are not subject to the disciplines of the Agreement on 
Safeguards.148  
7.52.  The expression "pursu ant to" in Article  11.1(c) of the Agreement on Safeguards links 
"measures sought, taken or maintained by a Member" to "provisions of GATT  1994 other than 
Article  XIX". Depending on the context in which it is used, "pursuant to" may have different 
meanings.  A measure could be "pursuant to" a provision in the sense that it is consistent or in 
conformity with that provision. A measure could also be "pursuant to" a provision when it is adopted 
by virtue of or under that provision, regardless of whether it is co nsistent with that provision. The 
Panel notes that the Agreement on Safeguards uses the expression "pursuant to" in different ways. 
In some instances, the expression refers to a requirement of consistency with a provision of the 
covered agreements; in othe rs, it appears to denote measures taken under a provision of the 
covered agreements.149 To determine the meaning of "pursuant to" in Article  11.1(c) of the 
Agreement on Safeguards, the Panel will assess the ordinary meaning of this expression in the 
context  in which it appears in Article  11.1(c), and in the light of the object and purpose of the 
Agreement on Safeguards, as required by the customary rules of interpretation of public 
international law.150 
7.53.  In Article  11.1(c) of the Agreement on Safeguards, the e xpression "pursuant to" is part of a 
provision that pertains to the applicability of the Agreement on Safeguards. Specifically, as 
suggested by the opening phrase "[t]his Agreement does not apply", Article  11.1(c) determines 
whether the disciplines applica ble to a measure sought, taken , or maintained by a Member are not 
those provided in the Agreement on Safeguards , but those contained in "provisions of GATT  1994 
other than Article  XIX". In the Panel's view, to condition the applicability of "provisions of GATT  1994 
other than Article  XIX" to a measure upon its consistency with such other provisions would conflate 
two distinct issues, namely, the applicability of the relevant covered agreements and conformity 
with those agreements. In this light, the Panel is not persuaded by Türkiye's argument that the 
expression "pursuant to" in Article  11.1(c) denotes consistency with provisions of the GATT  1994 
other than Article  XIX. The Panel's understanding of Article  11.1(c) is that, in the case of measures 
sought, taken , or maintained by virtue of or under "provisions of GATT  1994 other than Article  XIX", 
the Agreement on Safeguards does not apply, irrespective of whether the measures are consistent 
with such other provisions.  
7.54.  The Panel finds support for this understanding of Article  11.1(c) in the context provided by 
the other paragraphs of Article  11.1 of the Agreement on Safeguards. In stipulating that a safeguard 
measure must be consistent with certain disciplines, Article  11.1(a) requires that the measure 
"conforms with" the provisions of Article  XIX of the GATT  1994 applied "in accordance with" the 
Agreement on Safeguards. Similarly, concerning the prohibition on seeking, taking, or maintaining 
voluntary export restraints, orderly marketing arrangements , or any other similar measures, 
Article  11.1(b) directs that any such measures that are in effect on the date of the entry into force 
of the WTO  Agreement  must be brought "into conformity with " the Agreement on Safeguards, or 
phased out "in accordance with" Article  11.2 of that Agreement. Footnote 3 to Article  11.1(b) 
specifies that an exporting Member may, under certain conditions, administer an import quota 
applied as a safeguard measure "in conformity with the relevant provisions of GATT  1994 and [the 
Agreement on Safeguards]". Thus, where Article  11.1 stipulates an obligation to conform with 
provisions of the Agreement on Safeguards or with relevant provisions of the GATT  1994, it does so 
 
148 The Panel recalls its understanding of the relationship between Article  8.2 of the Agreement on 
Safeguards and Article  XIX:3(a) of the GATT  1994 as set out in paragraph  7.43 above.  
149 For example, Article  2.1 of the Agreement on Safeguards states that "[a] Member may apply a 
safeguard measure to a product only if that Member has determined, pursuant to  the provisions set out 
below" , that certain conditions exist . (emphasis added) In this instance, t he expression "pursuant to" is part of 
a provision that has been interpreted as establishing requirements with which Members must comply . 
(Appellate  Body Report, US – Steel Safeguards, para. 264). This expression is represe nted in the French and 
Spanish texts of Article  2.1 with the terms " conformément " and " con arreglo a ", respectively. Another example 
is Article  10 of the Agreement on Safeguards, referring to "measures taken pursuant to Article  XIX of 
GATT  1947". The French and Spanish texts of Article  10 describe these measures as " mesures … au titre de 
l'article XIX du GATT de 1947 " and " medidas … al amparo del artículo XIX del GATT de 1947 ", respectively , and 
the three authentic texts of this provision do not appear  to be referring to consistency of measures with the 
GATT  1947.  
150 Article  3.2 of the DSU.  WT/DS561/R  
 
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  explicitly. In contrast, Article  11.1(c) of the Agreement on Safegua rds does not contain any explicit 
references to consistency with "provisions of GATT  1994 other than Article  XIX".  
7.55.  This is equally true for the French text of the Agreement on Safeguards. In Articles 11.1(a) 
and 11.1(b), the French text uses the terms " conforme au " (or the plural " conformes aux " as 
appropriate) and " conformément " to signify obligations to comply with provisions of the Agreement 
on Safeguards or relevant provisions of the GATT  1994. On the other hand, the French text of 
Article  11.1(c) cond itions the inapplicability of the Agreement on Safeguards on whether the 
measures in question were sought, taken , or maintained " en vertu de " provisions of the GATT  1994 
other than Article  XIX. The use of different terms in the English and French texts of Article  11.1(c) 
when compared with the immediately preceding paragraphs of Article  11.1 indicates that "pursuant 
to" in Article  11.1(c) has a different meaning to  consistency with provisions of the GATT  1994 other 
than Article  XIX. Particularly noteworthy is the use of the expression " en vertu de " in the French text 
of Article  11.1(c), which suggests that Article  11.1(c) concerns measures sought, taken , or 
maintained by virtue of or under provisions of the GATT  1994 other than Article  XIX.151 
7.56.  In the Spanish text of the Agreement on Safeguards, the expression corresponding to 
"pursuant to" in Article  11.1(c) is " de conformidad con ". This expression has several meanings.152 
Depending on the context, the Spanish text of the Agreement on Safeguards uses  the expression 
"de conformidad con " variably to indicate "consistency" with the Agreement, as well as other kinds 
of relationships between a measure and the relevant provision. For example, the Spanish expression 
"conformidad con " in Articles 11.1(a) and 11.1(b) of the Agreement on Safeguards appears in the 
English and French texts as "conformity with" and " conformément aux ", respectively. In contrast, in 
footnote 1 to Article  2.1 of the Agreement on Safeguards, the terms corresponding to " conformidad 
con el presente Acuerdo " are "under this Agreement" and " au titre du présent accord " in English and 
French respectively, which do not seem to denote consistency.153 Thus, the Panel does not consider 
that the use of " de conformidad con " in Article  11.1(c) in and of itself denotes that " medidas que un 
Miembro trate de adoptar, adopte o mantenga " must be consistent with " otras disposiciones del 
GATT de 1994, aparte del artículo XIX " for the Agreement on Safeguards to be inapplicable. In the 
Panel's view, read in  the context of a provision governing the applicability of the Agreement on 
Safeguards154, "de conformidad con " must be understood as referring to measures adopted by virtue 
of or under certain provisions, but not requiring consistency with such provisions.  Accordingly, the 
three authentic language versions of Article  11.1(c) of the Agreement on Safeguards converge in 
this respect.  
7.57.  The Panel's understanding of the terms of Article  11.1(c) comports with the broader context 
of the Agreement on Safeguards. As c larified in Article  1 of the Agreement, the Agreement on 
 
151 Dictionnaire Larousse de Français  (defining the expression " en vertu de " as " en conséquence de ", 
"par l'effet de ", or " au nom de" ). The Panel notes that the expression  "en vertu de " only features in two other 
provisions of the Agreement on Safeguards , both of which confirm the Panel's understanding of this expression 
as used in Article  11.1(c) of the Agreement . Article  8.1 of the Agree ment on Safeguards refers to the level of 
concessions and other obligations  existing "en vertu du GATT de 1994 ", denoted in the English text as "under 
GATT  1994", and thus does not suggest that concessions or obligations must be in conformity with GATT  1994. 
Article  12.8 of the Agreement on Safeguards refers to notifications by Members " qui sont tenus de le faire en 
vertu du présent accord ". The terms corresponding to notifications  "en vertu du présent accord " in the English 
text of Article  12.8 are "by thi s Agreement". To denote the obligation of making such notifications, the terms 
"by this Agreement" or " en vertu du présent accord " are used together with explicit references to a 
requirement or, in French, the expression "[ils] sont tenus de le faire ", respectively.  
152 Diccionario de la Lengua Española , 22nd Edition (Real Academia Española, 2001), pp. 420 -421 
(defining " conformidad con " as " con arreglo a ", "a tenor de ", "en proporción o correspondencia a ", or "de la 
misma suerte o manera que "). 
153 For other examples in the covered agreements, see Article  3.9 of the DSU (referring to "the rights of 
Members to seek authoritative interpretation … through decision -making under the WTO  Agreement " in 
English, " droit des Membres de demander une interprétat ion faisant autorité … par la prise de décisions au titre 
de l'Accord sur l'OMC " in French, and " el derecho de los Miembros de recabar una interpretación autorizada … 
mediante decisiones adoptadas de conformidad con el Acuerdo sobre la OMC " in Spanish); Ar ticle 3.11 of the 
DSU (referring to " requests for consultations under the consultation provisions of the covered agreements " in 
English, " demandes de consultations présentées au titre des dispositions des accords visés " in French, and 
"solicitudes de celebración de consultas que se presenten de conformidad con las disposiciones sobre consultas 
de los acuerdos abarcados " in Spanish); and Article  4.11 of the DSU (providing that a Member shall be free to 
request " consultations under paragra ph 1 of Article  XXII", "consultations au titre du paragraphe 1 de 
l'article  XXII", and " consultas de conformidad con el párrafo 1 del artículo XXII " in English, French and Spanish , 
respectively).  
154 See para.  7.53 above.  WT/DS561/R  
 
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  Safeguards "establishes rules for the application of safeguard measures". This "General Provision" 
resonates in other provisions of the Agreement on Safeguards, which broadly relate to one of two 
enquiries: (i)  whether there is a right to apply safeguard measures, and (ii)  if so, whether that right 
has been exercised within the limits set out in the Agreement.155 The Agreement on Safeguards thus 
prescribes rules and requirements for a specific kind of measure identified in that Agreement. The 
consistency of measures with "provisions of GATT  1994 other than Article  XIX, and Multilateral Trade 
Agreements in Annex  1A other than [the Agreement on Safeguards]" is not a matter regulated by 
the Agreement on Sa feguards, and Article  11.1(c) must be interpreted taking this important 
consideration into account.  
7.58.  In this connection, the Panel recalls its discussion above of the object and purpose of the 
Agreement on Safeguards, which confirms that different discipli nes apply to measures depending on 
their characterization under the Agreement on Safeguards, as reflected in Article  11.1 of that 
Agreement.156 In particular, the Agreement on Safeguards seeks to "re -establish multilateral control 
over safeguards" (expresse d through the mandatory conditions in Article  11.1(a) with which 
safeguard measures must conform) and to "eliminate measures that escape such control" 
(expressed through the prohibition of the measures described in Article  11.1(b)). The object and 
purpose of the Agreement on Safeguards is thus to regulate, and in particular to secure the 
WTO-consistency of, measures of the kind described in Articles 11.1(a) and 11.1(b) of the 
Agreement, and not those excluded from its scope under Article  11.1(c). Exclusion of such measures 
from the Agreement on Safeguards is instrumental in order to preserve the rights of Members under 
"the basic principles of GATT  1994" on which the Agreement on Safeguards is based.157 The Panel 
does not consider that an interpretation of Ar ticle 11.1(c) of the Agreement of the Safeguards that 
brings the question of whether a measure is consistent with "provisions of GATT  1994 other than 
Article  XIX" within the scope of the Agreement on Safeguards would be consistent with this clearly 
articul ated aim and focus of the Agreement. The Panel's interpretation thus respects the distinct 
treatment of measures under the Agreement on Safeguards depending on their characterization.158 
7.59.  The parties have also referred to supplementary means of interpretation, such as the 
preparatory work of the Agreement on Safeguards, in support of their interpretative arguments. 
Under Article  32 of the Vienna  Convention  on the Law of Treaties (Vienna  Convention ), the Panel 
may have recourse to this preparatory  work to confirm its interpretation of Article  11.1(c) set out 
above. The Panel observes that early draft texts of the Agreement on Safeguards sought to preserve 
the rights and obligations of contracting parties regarding trade -restrictive measures "taken in 
conformity with" or "consistent with" other GATT provisions.159 These references to conformity and 
consistency were removed from subsequent drafts of the provision that became Article  11.1(c) of 
the Agreement on Safeguards, in favour of the expression "p ursuant to".160 The Panel also notes 
that references to conformity and consistency were only removed from Article  11.1(c) of the 
Agreement on Safeguards, but retained in the other paragraphs of Article  11.1, which provide 
context for the interpretation of Article  11.1(c). This preparatory work thus confirms the Panel's 
understanding that Article  11.1(c) does not pertain to the consistency of measures excluded from 
the scope of the Agreement on Safeguards.  
7.60.  Based on the foregoing, the Panel considers that Article  11.1(c) excludes from the scope of 
the Agreement on Safeguards measures that are sought, taken , or maintained by virtue of or under 
provisions of the GATT  1994 other than Article  XIX. In the Panel's view, Article  11.1(c) is not 
conce rned with the consistency of such measures with the provisions of the GATT  1994 pursuant to 
which they are sought, taken , or maintained.  
7.61.  The Panel now turns to certain interpretive arguments raised by the parties. Türkiye maintains 
that, in the present di spute,  whether a measure falls under the scope of Article  11.1(c) of the 
Agreement on Safeguards must be determined "objectively" by analysing "in particular, whether the 
measure presents the constituent features of a safeguard measure within the meaning o f 
 
155 Appellate  Body Report, US – Line Pipe, para. 84.  
156 See para.  7.40 above.  
157 Agreement on Safeguards, preamble, fourth recital.  
158 See paras.  7.35-7.38 above.  
159 Negotiating Group on Safeguards, Chairman's Report on Status of Work in the Negotiating Group 
(13 July 1990), MTN.GNG/NG9/W/25/Rev.2, p. 3; Negotiating Group on Safeguards, Draft Text of an 
Agreement (31  October  1990), MTN.GNG/NG9/W/25/Rev.3,  p. 9. 
160 Trade Negotiations Committee, Draft Final Act Embodying The Results of the Uruguay Round of 
Multilateral Trade Negotiations (20  December  1991), MTN.TNC/W/FA, p. M.7.  WT/DS561/R  
 
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  Article  XIX".161 The Panel understands Türkiye's argument to mean that the assessment of whether 
the Section  232 measures were  sought, taken , or maintained pursuant to provisions of the 
GATT  1994 "other than Article  XIX" should include consideration of wh ether these measures have  
certain features of safeguard measures. The Panel is not persuaded by this argument. An 
examination of measures under Article  11.1(c) of the Agreement on Safeguards must proceed on 
the basis of the specific terms of that provision , which provide for the inapplicability of the Agreement 
on Safeguards to measures adopted "pursuant to" another provision of the GATT  1994. The Panel 
does not see in the text of Article  11.1(c) an additional requirement to determine "whether WTO 
safeguard  rules may be [] more suitable applicable provision[s] for these measures" as argued by 
Türkiye.162 In this respect, the Panel understands that, in referring to provisions of the GATT  1994 
"other than Article  XIX", the terms of Article  11.1(c) call for determining whether another provision 
of the GATT  1994 is the legal basis  in the covered agreements  by virtue of or under which a Member 
has sought, taken , or maintained a measure.  
7.62.  The parties have also advanced  certain interpretive arguments concerning the "definitional 
criteria" of or "condition precedent" for safeguard measures.163 Noting the United  States ' arguments 
under Article  11.1(c) of the Agreement on Safeguards, and in the light of the interpretation of  that 
provision rendered above, the Panel is of the view that it would be appropriate to first determine 
whether the United  States ' Section  232 measures are excluded from the scope of the Agreement on 
Safeguards by virtue of Article  11.1(c). Should the Pan el find that the Section  232 measures are not 
so excluded, it will then consider whether they can be characterized as measures regulated by the 
Agreement on Safeguards and the legal standard for such characterization. Accordingly, the Panel 
will now turn t o examine whether the Section  232 measures were "sought, taken or maintained … 
pursuant to provisions of GATT  1994 other than Article  XIX".  
7.1.2.5.2   Whether the United  States ' Section  232 measures are excluded from the scope 
of application of the Agreement on Safe guards  
7.63.  The United  States  maintains that it adopted the Section  232 measures on aluminium and steel 
imports pursuant to Article  XXI of the GATT  1994, which concerns "Security Exceptions", and thus, 
pursuant to a provision of the GATT  1994 other than Article  XIX. Türkiye, however, argues that the 
design, structure, and expected operation of the Section  232 measures demonstrate otherwise, and 
relies, in support of this proposition, on the domestic legal basis for these measures, the reports in 
the investigatio ns leading to their adoption, and the legal instruments providing for the measures.  
7.64.  Based on the Panel's interpretation of Article  11.1(c) of the Agreement on Safeguards, the 
Panel will examine whether the Section  232 measures were sought, taken , or maintained by virtue 
of or under Article  XXI of the GATT  1994, such that the Agreement on Safeguards does not apply. 
In this respect, the Panel is guided by its duty under Article  11 of the DSU to conduct an objective 
assessment of the matter before it , which in the context of Article  11.1(c) of the Agreement on 
Safeguards pertains to the applicability of , and not consistency with , provisions of the GATT  1994 
other than Article  XIX. The Panel will assess the arguments and evidence advanced by the partie s 
concerning the Section  232 measures in this light.  
7.65.  The domestic legal basis for the United  States ' measures was Section  232 of the Trade 
Expansion Act of 1962 titled "Safeguarding national security" (Section  232).164 Under Section  232, 
the United  States ' Secretary of Commerce may investigate "the effects on the national security of 
imports of [an] article" into the United  States .165 Based on the Secretary of Commerce's findings 
and recommendations, the President of the United  States  may take action under S ection  232 to 
adjust imports of the investigated article into the United  States  so that they will not threaten to 
impair its national security.166 Section  232 also states that, in exercise of their respective authorities 
 
161 Türkiye's  response to Panel question No s. 78 (arguing that "pursuant to" in Article  11.1(c) means "as 
a first step, that a measure objectively falls within the relevant category", and contending that this must be 
determined through consideration of whether the measure presents the "constituent features" of a safeguard 
measure) and 82 (referring to the analysis of the "constituent features" of a safeguard measure in the context 
of its submission on the distinction between safeguard measures and "measures taken under other GATT 
permissive provisions, such as [Article  XXI]") . 
162 See pa ra. 6.12 above.  
163 United  States ' first written submission, para.  71; Türkiye's first written submission, para.  4.8. 
164 Section  232, (Exhibits USA -10, TUR -1). 
165 Section 232(b) , (Exhibits USA -10, TUR -1). 
166 Section  232(c) , (Exhibits USA -10, TUR -1). WT/DS561/R  
 
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  under that provision, the President and the Secretary of Commerce "shall … give consideration to" 
a non -exhaustive list of factors, such as the domestic production needed for the United  States ' 
projected national defence requirements, the capacity of its domestic industries to meet such 
requirements, and the importation of goods that affects the capacity of the United  States  to meet 
such requirements.167 
7.66.  In April 2017, as authori zed under Section  232, the Secretary of Commerce began 
investigations into the effects of aluminium and steel import s on the United  States ' national 
security.168 These investigations concluded that excessive aluminium and steel imports were 
weakening the United  States ' internal economy and, therefore, threatened to impair its national 
security as defined in Section  232. In arriving at this conclusion, the Secretary of Commerce referred 
to rising levels of imports of foreign aluminium and steel, and the "substantial risk" that this would 
displace the United  States ' domestic capacity to produce aluminium and steel for criti cal 
infrastructure and national defence.169 Specifically, the reports of these investigations note that "it 
is the ability to quickly shift production capacity used for commercial products to defence and critical 
infrastructure production that provides the United  States  a surge capability that is vital to national 
security, especially in an unexpected or extended conflict or national emergency." Thus, in the 
Secretary of Commerce's view, the risk to the financial viability of the United  States ' domestic 
aluminium and steel industries, and their competitiveness in commercial markets, placed at risk the 
United  States ' capability to meet its defence and critical infrastructure needs.170  
7.67.  Acting on these findings and the related recommendations, the President of the United  States  
issued several proclamations adjusting imports of aluminium and steel into the United  States . These 
proclamations constitute the Section  232 measures. They provide for (i)  ad valorem  tariffs of 10% 
and 25% on aluminium and st eel imports , respectively, applicable in addition to any duties provided 
in the Harmonized Tariff Schedule of the United  States171; (ii) exemptions for select countries from 
these tariffs172; (iii) "quota treatment" for aluminium and steel imports from selec t countries173; and 
(iv) a mechanism authori zing the United  States ' Secretary of Commerce to relieve certain aluminium 
and steel imports from the aforementioned tariffs and quotas.174  
7.68.  The tariffs on aluminium and steel imports were imposed through Proclamat ions 9704 and 
9705, respectively. These proclamations note that aluminium and steel articles are being imported 
into the United  States  "in such quantities and under such circumstances as to threaten to impair the 
national security of the United States", an d state that the tariffs imposed are necessary to address 
this threat. Specifically, the tariffs were imposed under these proclamations with a view to helping 
domestic aluminium and steel industries, so as to reduce the United  States ' need to rely on forei gn 
producers for aluminium and steel and, as a result, "ensure that domestic producers can continue 
to supply all the [aluminium and steel] necessary for critical industries and national defense" . 
Proclamations 9704 and 9705 reason that , without the relief  provided through these tariffs, the 
United  States ' domestic industries would continue to decline, leaving the United  States  at risk of 
becoming reliant on foreign producers to meet its national security needs concerning aluminium and 
 
167 Section  232(d) , (Exhibits USA -10, TUR -1). The Panel notes that these criteria are also specified in 
the United  States  Code of Federal Regulations, Title 15, Part 705 , (Exhibits USA -16, TUR -2) which sets forth 
"the procedures by which the [United  States  Department of Commerce] shall commence and conduct an 
investigation to determine the effect on the national security of the imports of any article" and based on which 
"the Secretary shall make a report and recommendation to the President for action or inaction regarding an 
adjustment of the imports of the article ." 
168 Section  232 investigation into steel imports , (Exhibits U SA-21, TUR -3); Section  232 investigation into 
aluminium imports , (Exhibits USA -22, TUR -4).  
169 Section  232 investigation into steel imports , (Exhibits USA -21, TUR -3), p. 55; Section  232 
investigation into aluminium imports , (Exhibits USA -22, TUR -4), p. 104.  
170 Section  232 investigation into steel imports , (Exhibits USA -21, TUR -3), pp. 55 -56; Section  232 
investigation into aluminium imports , (Exhibits USA -22, TUR -4), p. 105.  
171 Proclamation 9704 , (Exhibits USA -24, TUR -7), p. 11621; Proclamation 9705 , (Exhibits USA -23, 
TUR-6), p. 11627.  
172 Proclamation 9740 , (Exhibits USA -27, TUR -10), p. 20685; Proclamation 9739 , (Exhibits USA -28, 
TUR-11), pp. 20678 -20679; Proclamation 9759 , (Exhibits USA -29, TUR -12), p. 25858; and Proclamation 9758 , 
(Exhibits USA -30, TUR-13), p. 25850.  
173 Proclamation 9740 , (Exhibits USA -27, TUR -10), Annex; Proclamation 9759 , (Exhibits USA -29, 
TUR-12), Annex; and Proclamation 9758 , (Exhibits USA -30, TUR -13), Annex.  
174 Proclamation 9704 , (Exhibits USA -24, TUR -7), p. 11621; Proclamation 970 5, (Exhibits USA -23, 
TUR-6), p. 11627; Proclamation 9776 , (Exhibits USA -33, TUR -16), p. 45020; and Proclamation 9777 , 
(Exhibits  USA-32, TUR -15), p. 45026.  WT/DS561/R  
 
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  steel, a situation th at the proclamations describe as "fundamentally inconsistent with the safety and 
security of the American people".175 
7.69.  Proclamations 9704 and 9705, and the "national security interests" of the United  States  raised 
therein, formed the basis for further action  by the United  States .176 In this respect, the Panel 
considers relevant the exemptions granted to certain countries from the tariffs on aluminium and 
steel imports. Following determinations that imports from those countries no longer threatened to 
impair it s national security, the United  States  exempted (i)  from tariffs on aluminium imports, 
Argentina, Australia, Canada , and Mexico; and (ii)  from tariffs on steel imports, Argentina, Australia, 
Brazil, Canada, Mexico , and the Republic of Korea.177 These exemptions were granted on the basis 
of "important security relationships" between the United  States  and the exempted countries, and 
their shared concern regarding circumstances that threaten to impair national security, namely 
global excess capacity in aluminium and steel.178 Proclamations 9710 and 9711 describe in greater 
detail the various facets of th e United  States ' security relationships with the countries exempted 
from the aluminium and steel tariffs, including security, defence and intelligence partnerships, 
shared commitments towards addressing security concerns, and military alliances.179  
7.70.  The app lication of these tariffs and the related exemptions by the United  States  reveals the 
design and expected operation of the Section  232 measures. In connection with the tariffs, the Panel 
notes that Proclamations 9704 and 9705 provide for their modification  or termination based on 
monitoring and review of the "status of [aluminium or steel] imports with respect to the national 
security" of the United  States .180 The United  States  in fact modified the duty applicable to steel 
imports from Türkiye following such  monitoring and review.181 The Panel also considers relevant that 
any exemptions from the aluminium and steel tariffs were temporarily applied182, until the 
United  States  secured "an effective, long -term alternative means" to address the contribution of the 
exempted countries to the threatened impairment of its national security.183 Such "long -term 
alternative means" included quotas restricting the quantities of aluminium and steel imported into 
the United  States  from the exempted country184, which were previou sly identified by the 
United  States  as appropriate means to ensure that the exemptions do not undermine the national 
security objectives of the tariffs on aluminium and steel imports.185  
7.71.  The product coverage of the Section  232 measures is similarly reveali ng of the national 
security objectives pursued by the United  States  in adopting these measures. Tariffs were imposed 
on aluminium and steel articles that the United  States  found, following the investigations by the 
 
175 Proclamation 9704 , (Exhibits USA -24, TUR -7), pp. 11619 -11620; Proclamation 9705 , 
(Exhibits  USA-23, TUR-6), pp. 11626 -11627.  
176 Proclamation 9711 , (Exhibits USA -25, TUR -8), p. 13361; Proclamation 9710 , (Exhibits USA -26, 
TUR-9), p. 13355; Proclamation 9740 , (Exhibits USA -27, TUR -10), p. 20683; Proclamation 9739 , 
(Exhibits  USA-28, TUR -11), p. 20677; Proclamation 9759 , (Exhibits USA -29, TUR -12), p. 25857; 
Proclamation  9758, (Exhibits USA -30, TUR -13), p. 25849; Proclamation 9772 , (Exhibits USA -31, TUR -14), 
p. 40429; Proclamation 9777 , (Exhibits USA -32, TUR -15), p. 45025; and Proclamation 9776 , (Exhibits USA -33, 
TUR-16), p. 45019.  
177 Proclamation 9740 , (Exhibits USA -27, TUR -10), p. 20685; Proclamation 9739 , (Exhibits USA -28, 
TUR-11), pp. 20678 -20679; Proclamation 9759, (Exhibits USA -29, TUR -12), p. 25858; Proclamation 9758 , 
(Exhibits USA -30, TUR -13), p. 25850; Proclamation 9894 , (Exhibit TUR -44), p. 23988; and Proclamation 9893 , 
(Exhibit TUR -45), p. 23984.  
178 Proclamation 9704 , (Exhibits USA -24, TUR -7), p. 11620; Pr oclamation 9705 , (Exhibits USA -23, 
TUR-6), p. 11626.  
179 Proclamation 9711 , (Exhibits USA -25, TUR -8), pp. 13361 -13362; Proclamation 9710 , 
(Exhibits  USA-26, TUR -9), pp. 13355 -13356.  
180 Proclamation 9704 , (Exhibits USA -24, TUR -7), pp. 11621 -11622; Proclamation 9705 , 
(Exhibits  USA-23, TUR -6), pp. 11627 -11628.  
181 Proclamation 9772 , (Exhibits USA -31, TUR -14), p. 40429; Proclamation 9886 , (Exhibit TUR -46), 
p. 23421.  
182 Proclamation 9711 , (Exhibits USA -25, TUR -8), p. 13362; Proclamation 9710 , (Exhibits USA -26, 
TUR-9), p. 13356.  
183 Proclamation 9740 , (Exhibits USA -27, TUR -10), pp. 20683 -20684; Proclamation 9759 , 
(Exhibits  USA-29, TUR -12), pp. 25857 -25858; and Proclamation 9758 , (Exhibits USA -30, TUR -13), p. 25850.  
184 Proclamation 9740 , (Exhibits USA -27, TUR -10), p. 20685; Proclamation 9759 , (Exhibits USA -29, 
TUR-12), p. 25858; and Proclamation 9758 , (Exhibits USA -30, TUR -13), p. 25850.  
185 Proclamation 9711 , (Exhibits USA -25, TUR -8), p. 13363; P roclamation 9710 , (Exhibits USA -26, 
TUR-9), p. 13357.  WT/DS561/R  
 
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  Secretary of Commerce, to have applicatio ns for defence and critical infrastructure.186 The 
Section  232 measures also include a mechanism under which certain aluminium and steel articles 
which were otherwise subjected to tariffs and quotas could be excluded from them on the basis of 
"specific nati onal security considerations".187 This mechanism was elaborated in the rules issued by 
the Bureau of Industry and Security of the United  States  Department of Commerce. The rules 
provide that, in granting exclusions based on national security considerations,  the United  States  
Department of Commerce can consider impacts on the United  States ' national security that may 
result from not approving an exclusion. They additionally require that "the demonstrated concern 
with [US] national security would need to be tangible and clearly explained and ultimately 
determined by the [US] Government" .188  
7.72.  In the Panel's view, the abovementioned features of the Section  232 measures demonstrate 
that they were designed and expected to operate to address the threat to national security that the 
United  States  had determined to arise from rising levels of alumini um and steel imports. The Panel 
observes that the United  States ' national security objectives are reflected both in the application 
(tariffs, quotas) and non -application (exemptions, exclusions) of the Section  232 measures. The 
prescribed procedure for the  adoption, modification, and removal of the Section  232 measures, and 
especially the provisions made for consultations with domestic authorities such as the United  States ' 
Secretary of Defense189, further support the Panel's view.  
7.73.  The United  States  also out lined its national security objectives relating to the Section  232 
measures in its communications to WTO councils and committees, linking them to Article  XXI of the 
GATT  1994. Before adopting the Section  232 measures, the United  States  informed the Council  for 
Trade in Goods that its ongoing investigations into the effects of aluminium and steel imports on 
national security were to determine whether those imports were threatening its ability to meet its 
national security needs.190 Following the adoption of t he Section  232 measures, the United  States  
referred to the findings of its completed investigations and provided information "pursuant to 
Section  232 of the Trade Expansion Act of 1962, as amended, and consistent with the Decision 
Concerning Article XXI of  the General Agreement taken by the GATT Council on 
30 November  1982".191 In a communication addressed to the Committee on Safeguards, responding 
to Türkiye's request for consultations on the Section  232 measures under Article  12.3 of the 
Agreement on Safeg uards, the United  States  noted the domestic legal basis pursuant to which it had 
taken action, and reiterated that it had provided information to the WTO Council for Trade in Goods 
"consistent with the Decision Concerning Article  XXI of the General Agreeme nt taken by the GATT 
Council on 30 November 1982".192 Considered together with the features of the Section  232 
measures discussed above, these communications indicate that the legal basis in the covered 
agreements pursuant to which the United  States  has sought, taken , or maintained these measures 
is Article  XXI of the GATT  1994.  
7.74.  Türkiye argues that designation of a measure under domestic law and its notification or 
non-notification to WTO bodies are not decisive of its characterization under the Agr eement on 
Safeguards.193 The Panel agrees. At the same time, the Panel recalls that the characterization of the 
measures in the present case must proceed from the terms of the relevant provision itself, that is 
Article  11.1(c) of the Agreement on Safeguards . This provision calls for a determination of whether 
 
186 See Proclamation 9704 , (Exhibits USA -24, TUR -7), p. 11621; Proclamation 9705 , (Exhibits USA -23, 
TUR-6), p. 11627; Section  232 investigation into steel imports , (Exhibits USA -21, TUR -3), pp. 21 -22 and 
Appendices H and I;  and Section  232 investigation into aluminium imports , (Exhibits USA -22, TUR -4), 
pp. 24-38. 
187 Proclamation 9704 , (Exhibits USA -24, TUR -7), p. 11621; Proclamation 9705 , (Exhibits USA -23, 
TUR-6), p. 11627; Proclamation 9777 , (Exhibits USA-32, TUR -15), p. 45026; and Proclamation 9776 , 
(Exhibits  USA-33, TUR -16), p. 45020.  
188 BIS rule of 11  September  2018, (Exhibit USA-35), p. 46062.  
189 See Section  232(b) , (Exhibits USA -10, TUR -1); Proclamation 9704 , (Exhibits USA -24, TUR -7), 
pp. 11621 -11622; and Proclamation 9705 , (Exhibits USA -23, TUR -6), pp. 11627 -11628.  
190 Council for Trade in Goods, Minutes of the meeting held on 10  November  2017, G/C/M/130.  
191 Council f or Trade in Goods, Minutes of the meeting held on 23 and 26  March  2018, G/C/M/131.  
192 Committee on Safeguards, Communication from the United  States  in response to Turkey's request 
circulated on 20  April 2018, G/SG/ 184. The United  States  noted  that the proclamations constituting the 
Section  232 measures were issued " pursuant to Section  232 of the Trade Expansion Act of 1962" and not 
"pursuant Section  201 of the Trade Act of 1974, which is the law under which the United  States  imposes 
safeguard measures" . Accordingly, the United  States  maintained that the Section  232 measures were "not 
safeguard measures" and declined to engage in consultations under the Agreement on Safeguards.  
193 Türkiye's response to Panel question No.  79. WT/DS561/R  
 
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  a Member has adopted measures acting under or by virtue of provisions of the GATT  1994 other 
than Article  XIX. In these circumstances, the Panel considers that the domestic legal basis and 
procedures as  well as notifications concerning the adoption of the measures are relevant evidence 
of the legal basis under the covered agreements pursuant to which the Section  232 measures were 
sought, taken , or maintained. The Panel further notes that it has not consi dered this evidence in 
isolation, but in conjunction with aspects of the Section  232 measures that demonstrate how they 
were designed, applied, and expected to operate.  
7.75.  Türkiye also argues that the reports of the investigation into aluminium and steel imp orts, 
and the proclamations adjusting these imports into the United  States , pursue the specific objective 
of improving the economic health of the domestic aluminium  and steel  industries, which is the same 
as the objective  of safeguard measures. Türkiye con tends that the Panel should accordingly find the 
Agreement on Safeguards applicable to the Section  232 measures.194 
7.76.  The Panel is not persuaded by this argument. The Panel notes that the references to the 
economic welfare of domestic industries in the instru ments mentioned above are in the context of 
the relationship of such economic welfare to the United  States ' national security. Under Section  232, 
the relevant factors for the consideration of the Secretary of Commerce and the President include 
the impact o f foreign competition on the economic welfare of domestic industries, substantial 
unemployment, decrease in revenues of government, and loss of skills or investment, among others. 
These provide the basis under which the weakening of the United  States ' internal economy can be 
determined by the relevant authorities of the United  States  to impair its national security. In the 
same vein, the findings of the Secretary of Commerce on the impact of rising levels of imports on 
domestic aluminium and steel industrie s, and the corresponding adjustments recommended , follow 
the Secretary's conclusion that (i)  certain aluminium and steel products , as well as their domestic 
production , are essential to the United  States ' national security, national defence, and critical 
infrastructure; and (ii)  falling domestic capacity in these industries due to rising import competition 
would place at risk the ability of the United  States ' domestic industries to cater to its national security 
needs, particularly during an unexpected or e xtended conflict or national emergency.  
7.77.  The Section  232 measures further implement the recommendations of the Secretary of 
Commerce, including with respect to reviving idled facilities, opening closed smelters and mills, 
preserving necessary skills, and m aintaining or increasing production, for the specific purpose of 
securing aluminium and steel necessary for critical industries and national defence. The references 
to the economic welfare of the United  States ' domestic industries in the instruments considered 
above thus constitute one aspect of the United  States ' determination that there exists a threat to its 
national security. This aspect of the Section  232 measures cannot be divorced from its background 
and context, which reflect the m easures' national security objectives and confirms that they were 
sought, taken , or maintained pursuant to Article  XXI of the GATT  1994. 
7.78.  Türkiye refers to a memorandum issued by the United  States ' Secretary of Defense, which 
states that the findings of the  investigations into aluminium and steel imports do not "impact the 
ability of [Department of Defense] programs to acquire the steel or aluminum necessary to meet 
national defense requirements".195 According to Türkiye, this undermines the United  States ' 
arguments concerning the national security objectives of the Section  232 measures.196 The Panel 
notes that this memorandum was issued as part of the consultation process between the Department 
of Commerce and  the Department of Defense provided for in Section  232. The memorandum refers 
to the risk posed to the United  States ' national security by imports of aluminium and steel and 
"concurs with the Department of Commerce's conclusion that imports of foreign steel and aluminum 
based on unfair trading practices im pair the national security".197 In the Panel's view, this supports 
the understanding set out above that the Section  232 measures pursue national security objectives. 
The additional considerations raised by Türkiye regarding the United  States ' ability to acquire 
aluminium and steel for its national defence needs pertain to whether the Section  232 measures 
meet the requirements of Article  XXI of the GATT  1994, rather than whether they were sought, 
taken , or maintained pursuant to that provision. In this con nection, the Panel recalls its earlier 
conclusion that Article  11.1(c) concerns whether certain measures were sought, taken , or 
 
194 Türkiye's first wri tten submission, para.  4.54.  
195 United  States  Secretary of Defense Memorandum , (Exhibit TUR -19), p. 1.  
196 Türkiye's communication (20 January 2023 ) also noting  that, according to this memorandum, "the 
[US] military requirements for steel and aluminum each represent about three percent of [US] production ." 
197 United  States  Secretary of Defense Memorandum , (Exhibit TUR -19), p. 1.  WT/DS561/R  
 
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  maintained by virtue of or under provision s of the GATT  1994 other than Article  XIX, and not whether 
they are consistent with su ch other provisions.  
7.79.  Finally, the Panel notes that the characterization of the Section  232 measures under the 
Agreement on Safeguards was previously examined by the panel in United  States  – Steel and 
Aluminium Products (Turkey). As noted above198, the Panel sought the parties' views on the findings 
in that panel report concerning the applicability of the WTO safeguards regime to the Section  232 
measures and on the relevance of those findings for this Panel's analysis, in response to which both 
parties e mphasi zed this Panel's duty under Article  11 of the DSU. Following its examination of the 
Section  232 measures, the Panel concurs with the findings of the panel in United  States  – Steel and 
Aluminium Products (Turkey) that "the United  States ' determination  of a threat to its national 
security under Section  232 is a central aspect of the measures with respect to their legal 
characterization as being sought, taken , or maintained pursuant to Article  XXI of the GATT  1994".199 
Based on the Panel's understanding o f Article  11.1(c) and the relevance of domestic legal status and 
WTO notifications for the characterization of measures under that provision, the Panel also concurs 
with that panel's treatment of the same considerations.200  
7.80.  In the light of its conclusion t hat the Section  232 measures were sought, taken , or maintained 
pursuant to a provision of the GATT  1994 other than Article  XIX, the Panel finds that the Agreement 
on Safeguards does not apply to these measures, as provided for in Article  11.1(c) of that 
Agreement. As noted above, the rights under Article  8.2 of the Agreement on Safeguards and, 
relatedly, Article  XIX:3(a) of the GATT  1994, are unavailable in respect of measures to which the 
Agreement on Safeguards does not apply. Accordingly, the Panel finds  that Article  8.2 of the 
Agreement on Safeguards and Article  XIX:3(a) of the GATT  1994 do not apply to Türkiye's additional 
duties measure.  
7.1.3   Conclusion  
7.81.  Having found that Article  8.2 of the Agreement on Safeguards and Article  XIX:3(a) of the 
GATT  1994 do not  apply to Türkiye's additional duties measure, the Panel consequently finds that 
the application of Articles I and II of the GATT  1994 is not suspended in relation to this measure. 
The Panel will accordingly proceed to examine the United  States ' claims und er Articles I and II of 
the GATT  1994 in turn.  
7.2  United  States ' claims under the GATT  1994  
7.2.1   Whether the Panel should examine the additional duties measure as amended by 
Presidential Decision 1130/2019  
7.82.  Before assessing the United  States ' claims under the GATT  1994, the Panel must address an 
issue raised by the parties' arguments concerning the scope of the measure at issue. In particular, 
the Panel must assess whether to examine the WTO  consistency of the additional duties measure as 
amended by Presidential Decision 1130/2019 (the Second Amendment).201 As explained in section 
2.2 of this Report202, the Second Amendment entered into force on 21  May 2019, nearly four months 
after the Panel's establishment. The Second Amendment reduced the rates of duty applied under 
the additional duties measure to levels below those in force at the time of the Panel's establishment . 
7.2.1.1   Main arguments of the parties  
7.2.1.1.1   Unite d States  
7.83.  The United  States  does not contest that, following the entry into force of the Second 
Amendment on 21  May 2019, the additional duties applicable to certain tariff lines were reduced. 
However, the United  States  maintains that this reduction of the additional duties is "legally 
irrelevant" to these proceedings because it occurred well after the establishment of the Panel in this 
 
198 See section 1.3.1  above . 
199 Panel  Report , US – Steel and Aluminium Products (Turkey) , para. 7.111. 
200 Panel  Report , US – Steel and Aluminium Products (Turkey) , para. 7.98, fn 411, and para.  7.111.  
201 Second Amendment , (Exhibit TUR -43). 
202 See para . 2.8 above.  WT/DS561/R  
 
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  dispute. In the United  States ' view, the Panel's terms of reference are to examine the matter in the 
United  States ' panel r equest, and not a different matter existing on some other date.203 
7.2.1.1.2   Türkiye  
7.84.  Türkiye argues that the Panel should make findings on the version of the additional duties 
measure currently in force, namely, the measure as amended by the Second Amendment.204 In 
Türkiye's view, both the terms of the United  States ' panel request and the fact that the Second 
Amendment did not change the essence of the measure allow the Panel to make findings on this 
amended version of the measure.205  
7.2.1.2   Analysis by the Panel  
7.85.  The Panel 's terms of reference are defined by Article  7 of the DSU. According to that provision, 
the Panel's task is to examine the matter referred to the DSB by the United  States  in document 
WT/DS561/2 (that is, the United  States ' panel request), and to make such findings as will assist the 
DSB in making the recommendations or in giving the rulings provided for in the relevant agreements.  
7.86.  In this respect, the United  States ' panel request explicitly identifies the Implementation 
Decree and the First Amendment as the legal instruments through which Türkiye imposes the 
additional duties measure.206 The panel request does not explicitly identify the Second Amendment 
as constituting part of the challenged measure. Indeed, this could not  be otherwise, as the Second 
Amendment came into force nearly four months after the Panel was established.  
7.87.  The Panel notes that Articles 3 and 6 of the DSU invest a complainant with a considerable 
degree of discretion in framing its complaint. For example, Article  3.3 of the DSU suggests that a 
Member may initiate panel proceedings when it considers that the benefits accruing to it under any 
of the covered agreements are impaired by another Member's measure. Further, Article  3.7 
empowers Members to bring actions under the DSU where they consider that doing so would be 
fruitful. Article  6 similarly provides that a panel is to be established only where the complainant so 
requests, and gives complainants the power to identify the specific measures at is sue. The DSU thus 
prioritizes the "perception or understanding" of a complainant in framing the scope and content of 
the disputed measures.207  
7.88.  In several past disputes, WTO adjudicators have held that a panel's terms of reference may, 
in certain circumstan ces, encompass amendments to measures identified in the panel request 
enacted after its establishment.208 The Panel observes, however, that in the relevant disputes, and 
consistent with the principle of complainant control outlined above, those adjudicators  only examined 
whether an amendment fell within the terms of reference because the complainant in the 
proceedings explicitly requested that the relevant amendments be included in the panel's review. 
Their examination of whether a particular amendment fell within their terms of reference was thus 
motivated by the complainants' choice of what measures (or versions of measures) to challenge.  
7.89.  The Panel thus considers that, in the light of the emphasis placed by the DSU on the 
complainant's choices in framing th e scope of its complaint, the question whether a particular 
measure or amendment falls within a panel's terms of reference is only relevant to the extent that 
the complainant seeks findings on that measure or amendment. The Panel does not consider there 
to be any basis for making either jurisdictional or substantive findings on a measure or amendment 
in the absence of a request from the complainant to do so.209 In the circumstance s of these 
proceedings, where the complainant has explicitly limited its claims  to the additional duties measure 
as applied through the Implementation Notice and the First Amendment, the question whether the 
 
203 United  States ' response to Panel question No.  5, para.  16; and No. 69, paras. 1 and 3. 
204 Türkiye's response to Panel question No.  69. 
205 Türkiye's response to Panel question No s. 5 an d 69. 
206 United  States ' panel request , p. 1.  
207 Appellate  Body Report, US – Upland Cotton , para.  264. 
208 See e.g. Appellate  Body Reports, Chile – Price Band System , paras.  136-144; EC – Chicken Cuts , 
paras . 156-157; US – Zeroing (Japan) (Article  21.5 – Japan) , para.  121; and EC – Selected Customs Matters , 
para. 184; and Panel  Report s, EC – IT Products , para.  7.139; China – Raw Materials , para.  7.15; US – Large 
Civil Aircraft (2nd complaint) (Article  21.5 – EU), para.  7.524; and US – Tariff Measures  (Chin a), 
paras.  7.47-7.48.  
209 Panel  Report s, Russia – Tariff Treatment , para.  7.84; and US – Renewable Energy , para.  7.17.  WT/DS561/R  
 
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  Second Amendment falls within the Panel's terms of reference has no legal significance because the 
Panel has not been asked to make findings on that instrument.  
7.90.  Accordingly, the Panel will assess the United  States ' claims under the GATT  1994 with 
reference to the additional duties measure as it existed at the time of the Panel's establishment, 
that is, as applied through the Impl ementation Notice and the First Amendment. It will not make 
findings on the measure as implemented through the Second Amendment. Nevertheless, the Panel 
is of the view that it may be necessary to reflect the changes implemented through the Second 
Amendment  in its recommendations , if any, under Article  19.1 of the DSU.210 
7.2.2   United  States ' claim under Article  I:1 of the GATT  1994  
7.2.2.1   Main arguments of the parties  
7.2.2.1.1   United  States  
7.91.  The United  States  claims that Türkiye's additional duties measure is inconsistent with 
Article I:1 of the GATT  1994 because it fails to extend to certain products of the United  States  an 
advantage granted by Türkiye to like products originating in other countries.211 In the United  States ' 
view, a measure is inconsistent with Article  I:1 of the GATT 1994 where the following elements are 
present: (a) the challenged measure is covered by Article  I:1 of the GATT  1994; (b) the subject 
imports are "like products" within the meaning of Article  I:1 of the GATT  1994; (c) the challenged 
measure confers an "advantage, favour, privilege, or immunity" to a product originating in (or 
destined for) another country; and (d) such "advantage, favour, privilege, or immunity" is not 
extended "immediately" and "unconditionally" to all subject imports.212 The United  States  maintains 
that Türkiye's additional duties measure satisfies all of these elements.213 
7.92.  The United  States  first submits that the additional duties measure is "explicitly covered" by 
the text of Article  I:1. Noting that Article  I:1 refers to "customs duties", the United  States  argues 
that these are charges imposed at the border, as are the additional duties imposed by the measure 
at issue.214 Further, the United  States  contends that the terms "tariff", "customs duty",  and "import 
duty" are used interchangeably in economics and international trade law, and that therefore the 
phrase "customs duties and charges of any kind imposed on or in connection with importation" in 
Article  I:1 of the GATT  1994 would include the duti es imposed by Türkiye's additional duties 
measure.215 
7.93.  The United  States  next submits that each United  States ' product subject to Türkiye's 
additional duties measure is like a product from other countries not subject to the additional duties  
measure  within t he meaning of Article  I:1.216 According to the United  States , in circumstances where 
the only distinction between two sets of products is the country of origin, it may be presumed that 
the two sets are like products.217 The United  States  considers that origin is the only criterion used 
by Türkiye's measure for imposing additional duties on United  States ' products covered by 479 tariff 
lines, but not products from other countries entered under the same tariff lines.  Accordingly, in the 
United  States ' view, the  relevant products can be considered like for the purposes of Article  I:1 of 
the GATT  1994.218 
7.94.  Turning to the third element, the United  States  submits that Türkiye's additional duties 
measure confers an advantage on like products of other Members because it  imposes additional 
duties on certain United  States  products while leaving unchanged the rates of duty applicable to 
 
210 See e.g.  Appellate  Body Reports , US – Certain EC Products , para.  81; and Dominican  Republic  – 
Import and Sale of Cigarettes , para.  129; and Panel  Report , Russia – Tariff Treatment , para.  7.85.  
211 United  States ' first written submission, para.  23. 
212 United  States ' first written submission, para.  24 (referring to Appellate  Body Reports, EC – Seal 
Products , para.  5.86).  
213 United  States ' first written submission, para.  24. 
214 United  States ' first written submission, para.  25. 
215 United  States ' first written submission, para.  25. 
216 United  States ' first written submission, para.  28. 
217 United  States ' first written submission, paras.  29-30 (refer ring to Panel  Report s, China – Publications 
and Audiovisual Products , para.  7.1446; Indonesia – Autos , para.  14.113; and Canada – Autos , para.  10.74).  
218 United  States ' first written submission, para.  30. WT/DS561/R  
 
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  goods from all other countries, including all other WTO Members.219 In the United  States ' view, it is 
"evident" that, by providing lower duty rates to products originating outside the United  States , the 
additional duties measure accords an "advantage" to those goods within the meaning of Article  I:1. 
According to the United  States , this is because the subjection of some products to lo wer duty rates 
affects the competitive relationship between products and provides more favourable competitive 
opportunities to products benefiting from the lower rates.220 
7.95.  Finally, the United  States  argues that the lower duties that Türkiye provides to prod ucts from 
other countries are not provided to products originating in the United  States .221 For the 
United  States , where, as in this dispute, a measure imposes duties on one WTO Member and leaves 
duties on other countries unchanged, that measure clearly doe s not "immediately" accord to that 
WTO Member an advantage enjoyed by products originating in other countries.222 
7.96.  The United  States  concludes that, because Türkiye's additional duties measure satisfies all of 
these elements, it is inconsistent with Article  I:1 of the GATT  1994. 
7.2.2.1.2   Türkiye  
7.97.  Türkiye responds to the United  States ' claim under Article  I:1 of the GATT  1994 by arguing 
that tha t provision is "suspended" and therefore not applicable to the additional duties measure, 
which is a rebalancing measure under Article  8.2 of the Agreement on Safeguards.223 Türkiye further 
observes that, even if the Panel were to disagree with Türkiye abou t the characterization of the 
additional duties measure as a "rebalancing measure ", the United  States  as the complainant in this 
dispute nevertheless has an obligation to make a prima facie  case of a violation of Article  I:1 of the 
GATT  1994.224 
7.2.2.2   Analysis by the Panel  
7.98.  The question before the Panel is whether, as the United  States  claims, Türkiye's additional 
duties measure is inconsistent with Article  I:1 of the GATT  1994. Türkiye has responded to this claim 
by submitting that Article  I:1 is "suspe nded" and thus inapplicable in respect of the additional duties 
measure. However, Türkiye has not contested that the additional duties measure imposes duties on 
United  States ' products in excess of those applied on like products from other countries. Nor h as it 
addressed any of the specific arguments raised by the United  States in support of its position that 
the additional duties measure is inconsistent with Article  I:1.  
7.99.  The Panel concluded, in the previous Section  of this Report, that Article  8.2 of the Agreement 
on Safeguards and Article  XIX:3(a) of the GATT  1994 do not apply to the additional duties 
measure.225 As such, contrary to Türkiye's submission, the  application of Article  I:1 of the 
GATT  1994 is not "suspended" in relation to the  additional dutie s measure  within the meaning of 
those provisions . 
7.100.   In the absence of any further argumentation on Türkiye's part concerning the consistency 
of the additional duties measure with Article  I:1 of the GATT  1994, the Panel considers that the 
United  States' claim  under Article  I:1 is uncontested. Nevertheless, in accordance with its duty to 
make an objective assessment of the matter before it as laid down in Article  11 of the DSU, the 
Panel cannot simply accept the United  States ' arguments without further analysis . Rather, the Panel 
must satisfy itself as to whether the United  States  has established a prima facie  case that the 
additional duties measure is inconsistent with Article  I:1 of the GATT  1994.226 To that end, the Panel 
commence s its analysis with the text of the relevant provision.  
 
219 United  States ' first written submission, para.  31. 
220 United  States ' first written submission, para s. 32-33. 
221 United  States ' first written submission, para.  34. 
222 United  States ' first written submission, para.  35. 
223 Türkiye's first written submission, para.  3.4; response to Panel ques tion No.  13. 
224 Türkiye's  response to Panel question No.  13. 
225 See para.  7.81 above.  
226 See e.g. Panel  Report s, US – Poultry (China) , para s. 7.445 -7.446 ; Saudi Arabia – IPRs, para.  7.40; 
and China – TRQs, para.  7.21.  WT/DS561/R  
 
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  7.2.2.2.1   The applicable legal standard  
7.101.   Article  I:1 of the GATT  1994 provides as follows:  
With respect to customs duties and charges of any kind imposed on or in connection 
with importation or exportation or imposed on the internation al transfer of payments 
for imports or exports, and with respect to the method of levying such duties and 
charges, and with respect to all rules and formalities in connection with importation and 
exportation, and with respect to all matters referred to in paragraphs 2 and 4 of 
Article  III, any advantage, favour, privilege or immunity granted by any contracting 
party to any product originating in or destined for any other country shall be accorded 
immediately and unconditionally to the like product originati ng in or destined for the 
territories of all other contracting parties.  
7.102.   Article  I:1 prohibits, with respect to measures falling within its scope of application, 
discrimination among like products originating in or destined for different countries.227 This o bligation 
to accord most-favoured -nation ( MFN) treatment in respect of customs duties and charges of any 
kind imposed on or in connection with importation or exportation  has been understood as protecting 
expectations of equal competitive opportunities for like imported products from any Member.228 
7.103.   To establish that a measure is inconsistent with Article  I:1, a complainant must demonstrate 
that: (a) the measure at issue falls within the scope of Article  I:1; (b) the imported products at issue 
are like product s within the meaning of Article  I:1; (c) the measure at issue confers an "advantage, 
favour, privilege or immunity" on any product originating in the territory of any country; and (d) the 
advantage, favour, privilege or immunity granted is not extended "im mediately" and 
"unconditionally" to like products originating in the territory of all Members.229 The Panel will examine 
whether the United  States  has demonstrated that Türkiye's additional duties measure satisfies these 
four elements.  
7.2.2.2.2   Whether the additiona l duties measure is inconsistent with Article  I:1 of the 
GATT  1994  
7.104.   Article  I:1 of the GATT  1994 applies inter alia  to "customs duties and charges of any kind 
imposed on or in connection with importation". The Panel understands "customs duties" to refer to 
charges on goods that accrue at the moment and by virtue of importation or exportation.230  
7.105.   The Panel notes that the Implementation Dec ree is formally titled "Decree on Additional 
Duties on the Importation of Certain Products Originated from the United Stat es of America".231 The 
Panel also notes that Article  1(1) provides that "[t]he purpose of this Decree is to impose additional 
duties on the importation of certain products originated from the United  States  of America", and 
Article  1(2) provides that "[a]dditional duties are collected on the importation of certain products 
originated from the [United  States ] at the rates shown in the table attached to this Decree".232 These 
provisions therefore explicitly establish that the additional duties measure imp oses duties that accrue 
at the moment and by virtue of the importation of goods from the United  States  into Türkiye.  
7.106.   Further,  Article  3(1) of the Implementation Dec ree provides that the provisions of Türkiye's 
Customs Law No.  4458 and other relevant customs legislation on the methods and procedures 
related to customs duties are also applicable for the registration, accrual, collection, return, 
follow -up, and warranty pr ocesses of the additional duties imposed within the scope of this 
Decree.233 This provision appears to assimilate the duties imposed by the additional duties measure 
to other kinds of customs duties imposed or maintained by Türkiye for the purposes of admin istration 
and enforcement.  
 
227 Panel  Report , US – Steel and Aluminium Products (Turkey) , para.  7.56.  
228 Panel  Report , US – Steel and Aluminium Products (Turkey) , para.  7.56 (referr ing to  Appellate Body 
Report s, EC – Seal Pr oducts , paras.  5.86-5.87).  
229 Appellate  Body Reports, EC – Seal Products , para.  5.86.  
230 Appellate  Body Reports, China – Auto Parts , para.  158. 
231 Implementation Dec ree, (Exhibit s USA-1, TUR-41).  
232 Implementation Dec ree, (Exhibit s USA-1, TUR-41), Articles 1(1) and 1(2).  
233 Implementation Dec ree, (Exhibit s USA-1, TUR-41), Article  3(1). WT/DS561/R  
 
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  7.107.   The Panel observes that Article  2 of the Implementation Notice provides that "[a]dditional 
duties are collected separately from customs duties and other charges of  [a] fiscal nature by the 
customs authorities and are recorded as revenue to the national budget".234 Türkiye has not argued, 
however, and the Panel does not consider that this administrative requirement changes the essential 
characterization of the duties as "customs duties". The Panel understands this provision to be 
concerned with the sorting and allocation of collected revenues, rather than with defining the event 
or condition giving rise to the duties or on which the duties become payable. As noted, this event or 
condition is the importation of goods from the United  States into Türkiye, thus bringing the additional 
duties within the scope of "customs duties"  in the sense of Article  I:1 of the GATT  1994. 
7.108.   The Panel therefore considers that the additional duties measure imposes customs duties, 
and accordingly falls within  the scope of Article  I:1 of the GATT  1994. 
7.109.   With respect to whether the products at issue are like within the meaning of Article  I:1, the 
Panel notes that past WTO adjudicators have consistently held that when a measure makes a 
distinction between products  based exclusively on the ir origin, the likeness of such products can be 
presumed.235 Türkiye's additional duties measure applies additional tariff rates exclusively on 
products " originated  from the United  States ".236 It thus makes a distinction between products solely 
on the basis of origin, i.e. whether they originate in the United  States  or in any other country.237 
The Panel therefore finds that the United  States ' products subject to the additional duties  measure  
can be presumed to be like the equivalent products from other countries that are not subject to the 
additional duties measure.  
7.110.   The additional duties measure applies "additional tariff rates" on certain products originating 
in the United  States , but does not i ncrease the tariffs applicable to like products originating in any 
other country. In effect, this means that imports from other countries are subject to lower tariff 
rates than like products imported from the United  States . In the Panel's view, lower tarif f rates 
constitute an "advantage" within the meaning of Article  I:1 of the GATT  1994 because they create 
more favourable import opportunities and thus affect the competitive relationship between those 
products benefiting from lower tariff rates and those s ubject to higher tariff rates.  
7.111.   Finally, because the additional duties measure applies additional tariff rates  only on products 
originating in the United  States , it does not accord the advantage of lower tariff rates "immediately 
and unconditionally" to tho se products.  
7.112.   Accordingly, the Panel finds that the United  States  has demonstrated that the additional 
duties measure is inconsistent with Article  I:1 of the GATT  1994 because, with respect to customs 
duties imposed on or in connection with importation , it fails to accord an advantage granted to 
products originating in other countries  immediately and unconditionally to products originating in 
the United  States .  
7.2.2.3   Conclusion  
7.113.   For the reasons outlined above, the Panel finds that Türkiye's additional duties measu re is 
inconsistent with Article  I:1 of the GATT  1994 because, with respect to customs duties imposed on 
or in connection with importation , it fails to accord an advantage granted to products originating in 
other countries immediately and unconditionally to  products originating in the United  States .  
 
234 Implementation Dec ree, (Exhibit s USA-1, TUR-41), Article  2(1). 
235 Appellate  Body Report, Argentina – Financial Services , para.  6.36. See also  Panel  Report s, 
Colombia  – Ports of Entry , para s. 7.355 -7.356 ; and US – Poultry (China) , paras.  7.424 -7.432.  
236 Implementation Dec ree, (Exhibit s USA-1, TUR-41), Article  1. The Panel recalls that, through the 
Second Amendment, Türkiye reduced the additional duties to the rates in force prior to the enactment of the 
First Amendment on 15  August  2018. Despite this  reduction in duties, Türkiye continues to impose tariffs on 
products imported from the United  States  falling under 479 tariff lines at a higher level than the applied import 
duty rate s for like products imported from other countries.   
237 The table of relevant duty rates  in Annex  E-1 shows the MFN rates applied to all i mports of the 
relevant products into Türkiye and the additional duties that apply only to the like products originating in the 
United  States .  WT/DS561/R  
 
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  7.2.3   United  States ' claim under Articles II:1(a) and II:1(b) of the GATT  1994  
7.2.3.1   Main arguments of the parties  
7.2.3.1.1   United  States  
7.114.   The United  States  claims that Türkiye's additional duties measure imposes duties on 
products o riginating in the United  States  in excess of Türkiye's bound rate s and provides less 
favourable treatment to such products, and is therefore inconsistent with Articles II:1(a) and II:1(b) 
of the GATT  1994.238 
7.115.   According to the United  States , if a measure res ults in the imposition of duties that are in 
excess of the duties provided for in a Member's  bound  Schedule, the measure breaches obligations 
under Article  II:1(a) and (b) of the GATT  1994.239 The United  States  also submits that a measure 
that is inconsistent with Article  II:1(b) will necessarily be inconsistent with Article  II:1(a) as well, 
and accordingly addresses the former provision first.240 
7.116.   The United  States  begins by noting that Article  II:1(b) covers bot h ordinary customs duties 
and other duties or charges.241 In the United  States ' view, it is "legally immaterial" whether the 
additional duties constitute ordinary customs duties or other duties or charges because, under either 
characterization, the duties e xceed the rates set out  in Türkiye's  bound  Schedule.242 Nevertheless, 
arguing that ordinary customs duties typically relate to either the value or the volume of imported 
goods, whereas "other duties and charges" form a residual category that includes any fi nancial 
responsibilities resulting from the importation of goods that do not qualify as ordinary customs 
duties, the United  States  submits that the additional duties measure appears to impose ordinary 
customs duties.243 The United  States  argues that, for 210 of the 479 tariff lines covered by Türkiye's 
additional duties measure, Türkiye applies tariffs on United  States -origin products that are greater 
than the rates of duty set out in Türkiye's  bound  Schedule.244 In the alternative, the United  States  
submits that if the additional duties are characterized as "other duties or charges" rather than 
ordinary customs duties, they are nevertheless inconsistent with Article  II:1(b) because they are 
not reflected in Türki ye's bound  Schedule.245 
7.117.   Turning to Article  II:1(a) of the GATT  1994, the United  States  argues that "Article II:1(b) 
proscribes the type of measures that are equally inconsistent with Article II:1(a)", and therefore 
submits that, having established the incon sistency of the additional duties measure with 
Article  II:1(b), it has also demonstrated that the measure is inconsistent with Article  II:1(a).246 The 
United  States  thus argues that, by imposing duties in excess of its bound rates on products 
originating in the United  States , Türkiye has correspondingly accorded less favourable treatment to 
these products than that provided in its  bound  Schedule and breached Article  II:1(a) as well.247 
7.2.3.1.2   Türkiye  
7.118.   Türkiye responds to the United  States ' claims under Article  II of the GATT  1994 by arguing 
that that provision is suspended and therefore not applicable to the additional duties measure, which 
is a rebalancing measure under Article 8.2 of the Agreement on Safeguards.248 Nevertheless, Türkiye 
submits that, if the Panel were to examine the United  States ' claims under Article  II of the 
GATT  1994, Article  II:1(b) is the more specific provision, and Article  II:1(a) the more general one.  
 
238 United  States ' first written submission, para.  39. 
239 United  States ' first written submission, para.  42. 
240 United States ' first written submission, para.  43. 
241 United  States ' first written submission, para.  46. 
242 United  States ' first written submission, para.  47. 
243 United  States ' first written submission, para.  48 (referring to Panel  Report , Dominican  Republic  – 
Safeguard Measures , paras. 7.79-7.85).  
244 United  States ' opening statement at the second meeting of the Panel, para.  16. 
245 United  States ' first written submission, para.  50. 
246 United  States ' first written submission, para.  53 (referring Appellat e Body Report, Argentina – 
Textiles and Apparel , para.  47). 
247 United  States ' first written submission, para.  54. 
248 Türkiye's first written submission, para.  3.4. WT/DS561/R  
 
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  Therefore, in its view, if Article  II:1(b) has been violated, this would also mean that the more general 
provision under Article  II:1(a) has been violated.249 
7.2.3.2   Analysis by the Panel  
7.119.   The question before the Panel is whether, as the United  States  claims, Türk iye's additional 
duties measure is inconsistent with Articles II:1(a) and II:1(b) of the GATT  1994. The Panel notes 
that Türkiye has responded to the United  States ' claim by arguing that Article  II of the GATT  1994 
is suspended in respect of the additional  duties measure, and therefore inapplicable to it. With two 
exceptions dealt with below, Türkiye has not contested that the additional duties measure does in 
fact impose duties on products originating in the United  States  in excess of the rates bound in it s 
bound  Schedule. In fact, Türkiye characterizes the United  States ' description of the measure and its 
relationship with Türkiye's bound rates as "broadly accurate".250 Additionally, Türkiye agrees with 
the United  States  that a measure that is inconsistent with Article  II:1(b) will necessarily be 
inconsistent with Article  II:1(a) as well.  
7.120.   The Panel has already concluded that Article  8.2 of the Agreement on Safeguards and 
Article  XIX:3(a) of the GATT  1994 do not apply to Türkiye's additional duties measure.251 The Panel 
further found that, consequently, the application of Articles I and II of the GATT  1994 is not 
suspended in relation to  the additional duties measure. As such, the Panel has already addresse d 
and rejected Türkiye's argument that the additional duties measure is not inconsistent with Article  II 
of the GATT  1994 because the application of that provision is suspended . 
7.121.   The Panel considers that the United  States ' claim s under Article s II:1(a) II:1 (b) of the 
GATT  1994 are largely uncontested. Nevertheless, in accordance with its duty to make an objective 
assessment of the matter before it as laid down in Article  11 of the DSU, the Panel cannot simply 
accept the United  States ' arguments without furth er analysis. Rather, as noted above252, the Panel 
must satisfy itself as to whether the United  States  has established a prima facie  case that the 
additional duties measure is inconsistent with those provisions  of the GATT  1994.253 The Panel must 
also address  Türkiye's arguments concerning certain tariff lines affected by the additional duties 
measure . To that end, the Panel commence s its analysis with the text of the relevant provisions.  
7.2.3.2.1   The applicable legal standard  
7.122.   Articles II:1(a) and II:1(b) of the GATT  1994 provide as follows:  
(a)  Each contracting party shall accord to the commerce of the other contracting parties 
treatment no less favourable than that provided for in the appropriate Part of the 
appropriate sched ule annexed to this Agreement.  
(b)  The products described in Part I of the schedule relating to any contracting party, 
which are the products of territories of other contracting parties, shall, on their 
importation into the territory to which the schedule  relates, and subject to the terms, 
conditions or qualifications set forth in that schedule, be exempt from ordinary customs 
duties in excess of those set forth and provided therein. Such products shall also be 
exempt from all other duties or charges of an y kind imposed on or in connection with 
the importation in excess of those imposed on the date of this Agreement or those 
directly and mandatorily required to be imposed thereafter by legislation in force in the 
importing territory on that date.  
7.123.   Additional ly, the Understanding on the Interpretation of Article  II:1(b) of the GATT  1994 
provides in relevant part:  
Members hereby agree as follows:  
 
249 Türkiye's response to Panel question No.  14. 
250 Türkiye's first written submission, para.  2.22. 
251 See para.  7.81 above.  
252 See para.  7.100  above.  
253 See e.g. Panel  Report s, US – Poultry (China) , paras.  7.445 -7.446 ; Saudi Arabia – IPRs, para.  7.40; 
and China – TRQs, para.  7.21.  WT/DS561/R  
 
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  1. In order to ensure transparency of the legal rights and obligations deriving from 
paragraph 1(b) of Article  II, the nature and level of any "other duties or charges" levied 
on bound tariff items, as referred to in that provision, shall be recorded in the schedules 
of concessions annexed to GATT  1994 against the tariff item to which they apply. It is 
understood that such recording does not change the legal character of "other duties or 
charges".  
7.124.   Article  II:1(a) of the GATT  1994 prohibits Members from subjecting imports to treatment 
less favourable than that provided for in their bound Schedules.254 The first sentence o f 
Article  II:1(b) of the GATT  1994 prohibits the imposition of ordinary customs duties in excess of the 
rates set forth in a Member's bound Schedule.255 In assessing whether a measure is inconsistent 
with this sentence, a panel must ascertain the treatment accorded to the products at issue under 
the bound  Schedule of the relevant Member, the treatment accorded to the products at issue under 
the measures a t issue, and whether the measures at issue result in the imposition of duties and 
conditions on the products at issue in excess of those provided for in the relevant  bound  Schedule.256 
The second sentence of Article  II:1(b) prohibits the imposition of other  duties or charges of any kind 
on or in connection with importation in excess of those imposed on the date of entry into force of 
the GATT  1994 (or those directly and mandatorily required to be imposed thereafter by legislation 
in force on that date).257 According to the Understanding on the Interpretation of Article  II:1(b), the 
nature and level of any such "other duties or charges" must be recorded in a Member's  bound  
schedule.258  
7.125.   A measure that is inconsistent with Article  II:1(b) of the GATT  1994 will ne cessarily be 
inconsistent with Article  II:1(a) as well. This is because the imposition by a Member of duties in 
excess of the relevant  bound rates constitutes "less favourable treatment" within the meaning of 
Article  II:1(a).259 Accordingly, the Panel will begin its analysis by considering the United  States ' claim 
under Article  II:1(b) of the GATT  1994. 
7.2.3.2.2   Whether Türkiye's additional duties measure is inconsistent with Article  II:1(b) 
of the GATT  1994  
7.126.   Article  II:1(b) of the GATT  1994 prohibits the imposition o f both ordinary customs duties in 
excess of those provided in a Member's  bound  Schedule and "other duties or charges" not recorded 
in a Member's  bound  schedule. The Panel therefore begins its analysis by considering whether the 
duties imposed by Türkiye's additional duties measure fall within the scope of either of these 
categories.  
7.127.   The United  States  submits that the duties imposed by the additional duties measure appear 
"on [their] face" to be ordinary customs duties.260 The Panel notes that, although the term ordinary 
customs duties  is not defined in Article  II of the GATT  1994, it has been consistently found in past 
disputes that a duty is likely to constitute an ordinary customs duty where it arises or accrues 
"because  of the importation of the product at the very moment it enters the territory of another 
Member"261, such that it can be characterized as a duty "on" importation.262  
7.128.   The Panel has already found that Türkiye's additional duties measure imposes duties that 
accrue at the moment and by virtue of the importation of goods from the United  States  into 
 
254 See Appellate  Body Reports, Argentina – Textiles and Apparel, para. 45; Colombia – Textiles, 
para. 5.34.  
255 See Appellate  Body Reports, India – Additional Import Duties , para.  150; Colombia – Textiles , 
para. 5.35.  
256 Panel  Report s, EC – Chicken Cuts , para.  7.65.  
257 See Appellate  Body Report, India – Additional Import Duties , para. 151; Panel  Report, 
Dominican  Republic  – Safeguard Measures , para.  7.78.  
258 See Panel  Report, Dominican  Republic  – Safeguard Measures , para.  7.78. See also Panel  Report , 
Dominican  Republic  – Import and Sale of Cigarettes , paras.  7.84-7.90. 
259 Appellate  Body Report, Argentina – Textiles and Apparel , para.  47. 
260 United  States ' first written submission, para.  48. 
261 Panel  Report s, China – Auto Parts,  para. 7.184 . 
262 Appellate  Body Report s, China – Auto Parts , para.  158. WT/DS561/R  
 
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  Türkiye.263 Accordingly, the Panel considers that these duties can properly be characterized as 
ordinary customs duties within the meaning of Article  II:1(b) of the GATT 1994.264 
7.129.   The Panel now turns to assess whether the duties imposed by the additional duties measure 
are "in excess" of those set forth in Türkiye's  bound  Schedule. The United  States  has submitted 
evidence comparing Türkiye's bound rates and its applied rat es (comprising both the MFN rates and 
the applicable additional duties265) in respect of the 479 tariff lines covered by the additional duties 
measure.266 The United  States  contends that this evidence shows that Türkiye imposes ordinary 
customs duties in exc ess of its bound rates in respect of 210267 of these tariff lines.  
7.130.   The arguments and evidence submitted by the United  States  were uncontested by Türkiye  
with regard to 199 of the tariff lines  affected by the additional duties measure .268 Having examined 
the arguments and evidence submitted, the Panel finds that the United  States  has demonstrated 
that Türkiye's additional duties  measure  results in the imposition of ordinary customs duties on 
imports from the United  States  under  those  199 tariff lines in excess of the rates set forth in Türkiye's 
bound Schedule.269  
7.131.   Türkiye did, however, contest the arguments and evidence submitted by the United  States  
with regard to two sets of tariff lines: first, tariff lines  210690980012, 210690980013, 
210690980014, 210690980015, and 210690980019; and second, tariff lines 870333909011 , 
870333909019 , 870340100000, 870340900000, 870350000000, and 87036010 0000. The Panel will 
examine the arguments and evidence relating to those two sets of tariff lines in the following 
Sections.  
7.2.3.2.2.1   HS2017 tariff lines 210690980012, 210690980013, 210690980014, 
210690980015, and 210690980019  
7.132.   In commenting on the Panel's draft de scriptive part (which included a draft of the Panel's 
table of relevant duty rates  setting out the Panel's understanding of the tariff rates and additional 
duties applicable to the products covered by the additional duties measure), Türkiye submitted that 
the MFN rate for tariff lines 210690980012, 210690980013, 210690980014, 210690980015, and 
210690980019 was 9+T1, rather than 58.5% as indicated in Exhibits USA -6, USA -7, and USA -8.270 
In response to a question from the Panel, the United  States  indicated tha t it did not object to this 
change, and explained that, in its understanding,  the formula  9+T1 "signifies that Türkiye applies a 
9% ad valorem rate plus a specific duty rate determined according to milk fat and milk protein 
percentages by weight". The Unit ed States  further argued  that "[w]hen combined with the 10% 
additiona l duty Türkiye applies to U nited States -origin products only, Türkiye may still apply duties 
in excess of its bound rates" in respect of these  tariff lines. However, the United  States  did not 
 
263 See para . 7.105  above.  
264 The precise relationship between the terms "customs duties" in Article  I:1 of the GATT  1994 and 
"ordinary customs duties " in Article  II:1(b) of the GATT  1994 has not been discussed b y the parties, and the 
Panel does not consider it necessary to address this question to resolve the dispute before it.  
265 The Panel  recalls that the Implementation Decree states that it operates to "impose additional duties 
on the importation of certain pro ducts originated from the United  States  of America". The Panel understands 
from this language that the measure requires the application of both Türkiye's MFN rates and the additional 
duties to imports from the United  States . See Implementation Dec ree, (Exhibits USA-1, TUR-41), Article  1(1). 
266 United  States ' Table Presenting Tariff Lines and Bound Rates Affected By Türkiye's Measure from 
21 June 2018 to 14 August  2018, (Exhibit USA -6); United  States ' Table Presenting Tariff Lines and Bound 
Rates Affected By Türkiye's Measure from 15  August  2018 to 31  December  2018, (Exhibit USA-7); and 
United  States ' Table Presenting Tariff Lines and Bound Rates Affected By Türkiye's Measure beginning  on 
1 January  2019, (Exhibit USA-8). The Panel observes that these documents concern 477 tariff lines. However, 
following a clarification from Türkiye, the United  States  agreed  that the additional duties measure covers 479 
tariff lines. See Türkiye's first written submiss ion, para.  2.22 and fn  37 and United  States ' opening statement 
at the second meeting of the Panel, para.  16. A consolidated list of the 479 tariff lines, including the relevant 
bound rate s, MFN rate s, and additional duties , can be found in the Table of relevant duty rates  (Annex  E-1).  
267 United  States ' opening statement at the second meeting of the Panel, para.  16. 
268 United  States ' Table Presenting Tariff Lines and Bound Rates Affected By Türkiye's Measure from 
21 June 2018 to 14 August  2018, (Exhibit USA -6); United  States ' Table Presenting Tariff Lines and Bound 
Rates Affected By Türkiye's Measure from 15  August  2018 to 31  December  2018, (Exhibit USA-7); and 
United  States ' Table Presenting Tariff Lines and Bound Rates Affected By Türkiye's Measure beginning  on 
1 January  2019, (Exhibit USA-8). 
269 Table of relevant duty rates  (Annex  E-1). 
270 Türkiye's comments on the draft descriptive part (17  January  2023).  WT/DS561/R  
 
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  explain how the MFN rate 9+T1 operates so as to result in the application of ordinary customs duties 
in excess of Türkiye's bindings. Türkiye did not  respond to the Panel's request for comments on the 
United  States' comments in this respect.  
7.133.   The Panel notes that neither party has suggested that there exists any kind of cap or ceiling 
that would prevent the formula 9+T1 from producing a duty rate that, when combined with the 
applicable additional duty, would exceed Türkiye's bound rates. Theref ore, the Panel considers that, 
to the extent that the additional duties measure results, in respect of tariff lines 210690980012, 
210690980013, 210690980014, 210690980015, and 210690980019, in the imposition of ordinary 
customs duties that exceed the rates  in Türkiye's bound Schedule , it is inconsistent with 
Article  II:1(b) of the GATT  1994.  
7.2.3.2.2.2   HS2017 tariff lines 870333909011, 870333909019 , 870340100000, 
870340900000, 870350000000,  and 870360100000  
7.134.   The parties disagree about whether tariff lines 870333909011 , 870333909019 , 
870340100000, 870340900000, 870350000000, and 870360100000 are bound in Türkiye's bound 
Schedule. The Panel has already provided a detailed discussion on the parties' positions  on this issue  
in Section  6 above.271 In this section, f or each o f the relevant  tariff lines, the Panel will provide its 
assessment of (i)  whether these tariff lines are bound in Türkiye's bound Schedule and, if so, at 
what rate; and (ii)  whether the applied rate s for the tariff lines concerned exceed the bound rate s. 
HS2017 tariff lines 870333909011  and 870333909019  
7.135.   The Panel notes that tariff lines 870333909011 and 870333909019  from Türkiye's applied 
tariff schedule fall under the HS2017 subheading  870333. This subheading concerns " Motor cars and 
other motor vehicles principally designed for the transport of persons (other than those of 
heading  87.02), including station wagons and racing cars  / - other vehicles, with only compression -
ignition internal combustion piston engine (diesel or semi -diesel):  / -- Of a cylinder capacity 
exceeding 2,500 cc ".272 In Türkiye's applied tariff schedule, t his subheading is subdivided into two 
categories – new and used – which are themselves further subdivided into motor cars, motor 
caravans, and "other". For present purposes, the Panel understands that what matters is that tariff 
line 8703339090 covers used vehicles other than motor cars (which instead fall under tariff line 
8703339010).  
7.136.   Based on the information available, the Panel notes that the scope of tariff line 870333909 0 
is identical in Türkiye's bound Schedule and its applied tariff schedule  with respect to the type of 
vehicle that has "only compression -ignition internal combustion piston engine (diesel or semi -
diesel)". It is therefore possible to identify the bound ra te for this kind of vehicles by looking at the 
relevant entry in Türkiye's bound Schedule. Doing so reveals that the bound rate applicable to these 
products is 19%.  
7.137.   The 12 -digit tariff lines 870333909011  and 870333909019  in Türkiye's applied tariff 
schedul e are break -out lines from tariff line 8703339090 . That is, they provide further specificity 
and subdivisions on products falling under the 10 -digit tariff line 8703339090 . While neither of the 
12-digit tariff lines appears as such in Türkiye's bound Sched ule, nevertheless, because they both 
fall under the 10 -digit tariff line 8703339090 , and because that tariff line is bound at 19%, it follows 
that both 12 -digit tariff lines are also subject to a maximum bound rate of 19%.  
7.138.   Türkiye's additional duties meas ure applies a duty of 120% on products falling under these 
two tariff lines. Accordingly, in respect of these two tariff lines, the Panel finds that Türkiye applies 
duties in excess of those set forth in Türkiye's bound Schedule.  
 
271 See Section  6.2.1  above . 
272 See Notifications of 2016 and 2021 applied tariff rates by Türkiye to the WTO IDB pursuant to the 
"Decision on the modalities and operation of the IDB " of 26 May 2019 (G/MA/367) . Unless otherwise indicated, 
all product descriptions referred to in this section in respect of Türkiye's applied tariffs are taken from Türkiye's 
notifications as collected in the IDB.  WT/DS561/R  
 
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  HS2017 tariff lines 87034 0100000  and 870340900000  
7.139.   The Panel begins by noting that, because the last four digits of these tariff lines are zero, 
following the HS practice and conventions, they can also be expressed as 87034010 and 87034090. 
These tariff lines fall under the broader  6-digit subheading 870340. This subheading was introduced 
for the first time in HS2017 by combining parts of five separate subheadings from the HS2002 
classification: 870321, 870322, 870323, 870324, and 870390.273 The WCO correlation tables explain 
that "[ t]he structure of heading 87.03 has been redrafted and renumbered to provide separately for 
hybrid electric vehicles, plug -in hybrid vehicles and for all -electric motor vehicles, respectively".274 
In particular, subheading 870340 was meant to regroup the cl assification of "other vehicles, with 
both spark -ignition internal combustion reciprocating piston engine and electric motor as motors for 
propulsion, other than  those capable of being charged by plugging to an external source of electric 
power".275  
7.140.   In Tür kiye's bound Schedule, subheadings 870321, 870322, 870323, and 870324 cover a 
range of "m otor cars and other motor vehicles principally designed for the transport of persons 
(other than those of heading  87.02), including station wagons and racing cars  / other vehicles, with 
spark -ignition internal combustion reciprocating piston engine" , and are subdivided according to the 
cylinder capacity of the engine . Additionally, subheading 870390 covers "other vehicles" principally 
designed for the transport of persons that were not covered by 870310 (e.g. vehicles specially 
designed for travelling on the snow; golf cars and similar vehicles), 870320 (other vehicles, with 
spark -ignition internal combustion reciprocating piston engine), or 870330 (o ther vehicles, with only 
compression -ignition internal combustion piston engine (diesel or semi -diesel) ). This includes, for 
example, vehicles with only electric motors. These vehicles are further subdivided according to 
(a) whether they are "motor cars" or "other"; and (b) whether they are new or used. Based on the 
information in the CTS, the Panel notes that "motor cars" falling under tariff lines 870321, 870322, 
870323, and 870324 are unbound, but vehicles other than motor cars, including motor caravans, 
are bound at 1 9%. Additionally, all vehicles with "electric motors" falling under tariff line 
8703901000 are bound at 20%, where there is no further differentiation of the types of vehicles.  
7.141.    In Türkiye's applied tariff schedule, subheading 870340 is itself divided into  two broad tariff 
lines: 87034010 for new vehicles, and 8703409 0 for used vehicles. These two tariff lines are further 
subdivided into three tariff lines covering: (a) motor cars; (b) motor caravans; and (c) "other". The 
result of this reclassification and  regrouping of the products is that new vehicles with both spark -
ignition internal combustion reciprocating piston engine and electric motor as motors for propulsion, 
other than those capable of being charged by plugging to  an external source of electric p ower 
(whether motor cars, motor vans, or "other") formerly covered by HS2002 subheadings 870321, 
870322, 870323, 870324, and 870390 in HS2002, fall under tariff line 87034010 in Türkiye's applied 
tariff schedule. Additionally, used vehicles with both spark -ignition internal combustion reciprocating 
piston engine and electric motor as motors for propulsion other than those capable of being charged 
by plugging to  an external source of electric power  that cannot be plugged (whether motor cars, 
motor vans, or " other") formerly covered by HS2002 subheadings 870321, 870322, 870323, 
870324, and 870390, fall instead under tariff line 87034090  in in Türkiye's applied tariff schedule.  
7.142.   This means that tariff lines 87034010 and 87034090 in Türkiye's applied tariff sche dule 
cover a range of products that, in Türkiye's bound Schedule, are either unbound or subject to a 
bound rate of either 19% or 20%. As the additional duties measure applies a duty of 120% to 
products falling under these tariff lines, the Panel concludes that Türkiye's additional duties measure 
is inconsistent with Article  II:1(b) of the GATT  1994, to the extent that it applies to products subject 
in Türkiye's bound Schedule to a bound rate of 19% or 20%.  
HS2017 tariff line 870350000000  
7.143.   The Panel begins by  noting that, as explained above, because the last six digits of this tariff 
line are zero, it can be expressed as subheading 870350.  This subheading was created for the first 
time in HS2017 by combining four separate subheadings from the HS2002 classifica tion: 870331, 
 
273 WTO-WCO HS Tracker Subheading Visualizer  – Consolidated, (Exhibit USA -58). 
274 WCO to HS2017 (Table  1), (Exhibit USA -59), p. 22.  
275 International Convention on the Harmonized Commodity Description and Coding System, Changes in 
the Harmonized System to be Introduced on 1  January  2017 (5  April 2016),  G/MA/W/121, p. 57.  (emphasis 
added)  WT/DS561/R  
 
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  870332, 870333, and 870390.276 The WCO correlation tables explain that "[t] he structure of heading 
87.03 has been redrafted and renumbered to provide separately for hybrid electric vehicles, plug -in 
hybrid vehicles and for all -electric motor v ehicles, respectively".277 In particular, HS2017 subheading 
870350 was meant to regroup the classification of " other vehicles", with  both compression -ignition 
internal combustion piston engine (diesel or semi -diesel) and electric motor as motors for propuls ion, 
other than  those capable of being charged by plugging to  an external source of electric powe r.278  
7.144.   In HS2002, subheadings 870331, 870332, and 870333, cover a range of "m otor cars and 
other motor vehicles principally designed for the transport of persons (other than those of 
heading  87.02), including station wagons and racing cars  / other vehicles, with compression -ignition 
internal combustion piston engine (diesel or semi -diesel) ", and are subdivided according to the 
cylinder capacity of the engin e. In Türkiye's bound Schedule, these vehicles are further subdivided 
according to (a) whether they are motor cars or "other"; and (b) whether they are new or used. 
Additionally, as noted above, HS2002 tariff line 87039010 cover s vehicles with electric mot ors. 
Based on the information in the CTS, the Panel notes that i n Türkiye's  bound Schedule , new motor 
cars falling under HS2002 subheadings  870331, 870332, and 870333 are unbound, but new vehicles 
other than motor cars, including motor caravans, are bound at 19%. Additionally, vehicles with 
electric motors falling under tariff line 870390 10 are bound at 20%.  
7.145.   In Türkiye's applied tariff schedule, subheading 870350 is subdivided into three further tariff 
lines, covering (a) motor cars; (b) motor caravans, and  (c) "other". The result of this reclassification 
and regrouping of the products is that all vehicles with both compression -ignition internal combustion 
piston engine (diesel or semi -diesel) and electric motor as motors for propulsion other than  those 
capable of being charged by plugging to  an external source of electric power  formerly covered by 
HS2002 subheadings 870331, 870332, 870333, and 870390, whether new or used, and whether 
motor cars, motor caravans, or "other", now fall under subheading 870350.  
7.146.   This means that subheading 870350 covers a range of products that, in Türkiye's bound 
Schedule, are either unbound (motor cars) or subject to a bound rate of either 19% or 20%. As the 
additional duties measure applies a duty of 120% to products falling unde r these tariff lines, the 
Panel concludes that Türkiye's additional duties measure is inconsistent with Article  II:1(b) of the 
GATT  1994 to the extent that it applies to products subject in Türkiye's bound Schedule to a bound 
rate of 19% or 20%.  
HS2017 tar iff line 870360100000  
7.147.   The Panel begins by recalling that, as noted above, because the last four digits of this tariff 
line are zero, as explained above, it can also be expressed as 87036010. This tariff line falls under 
the broader 6 -digit HS2017 subheading 870360. This subheading was created for the first time in 
HS2017 by combining five separate tariff lines from the HS2002 classification: 870321, 870322, 
870323, 870324, and 870390.279 The WCO correlation tables explain that "[t] he structure of he ading 
87.03 has been redrafted and renumbered to provide separately for hybrid electric vehicles, plug -in 
hybrid vehicles and for all -electric motor vehicles, respectively" .280 In particular, HS2017 subheading 
870360 was meant to regroup the classification of "o ther vehicles, with both  spark -ignition internal 
combustion reciprocating piston engine and electric motor as motors for propulsion, capable  of being 
charged by plugging to an external source of electric power ".281 
7.148.   The Panel observes that HS2017 subheading 870360 was created by combining the same 
five tariff lines as were combined to create subheading 870340.282 The main difference is that, 
whereas subheading 870340 covers h ybrid gasoline -electric vehicles not capable of being charged 
by plugging to an external source of electric power , subheading 870360 covers vehicles with both 
spark -ignition internal combustion reciprocating piston engine and electric motor as motors for 
 
276 WTO-WCO HS Tracker Subheading Visualizer – Consolidated, (Exhibit USA -58). 
277 WCO correlation tables HS2012 to HS2017 (Table  1), (Exhibit USA -59), p. 22.  
278 International Convention on the Harmonized Commodity Descripti on and Coding System, Changes in 
the Harmonized System to be Introduced on 1  January  2017 (5  April 2016), G/MA/W/121, p. 57.  
279 WTO-WCO HS Tracker Subheading Visualizer – Consolidated, (Exhibit USA -58). 
280 WCO correlation tables HS2012 to HS2017 (Table  1), (Exhibit USA -59), p. 22.  
281 International Convention on the Harmonized Commodity Description and Coding System, Changes in 
the Harmonized System to be Introduced on 1  January  2017 (5  April 2016), G/MA/W/121, p. 5 8. 
282 See para.  7.139  above.  WT/DS561/R  
 
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  propulsion capable  of being charged by plugging to  an external source of electric power .283 Like 
HS2017 subheading 870340, HS2017 subheading 870360 is divided into two broad categories in 
Türkiye's applied tariff schedule: 87036010 for new vehicles, and 87036090 for used vehicles. These 
two tariff lines are further subdivided into three tariff lines covering (a) motor cars; (b) motor 
caravans; and (c) "other". The result of this reclassification and regrouping of the products is that 
new vehicles with both sp ark-ignition internal combustion reciprocating piston engine and electric 
motor as motors for propulsion capable of being charged by plugging to  an external source of electric 
power  (whether motor cars, motor vans, or "other") formerly covered by HS2002 su bheadings 
870321, 870322, 870323, 870324, and 870390 now fall under 87036010, while used vehicles with 
both spark -ignition internal combustion reciprocating piston engine and electric motor as motors for 
propulsion capable of being charged by plugging to  an external source of electric power  formerly 
covered by HS2002 subheadings 870321, 870322, 870323, 870324, and 870390 now fall under 
87036090.  
7.149.   The Panel has previously established that the five tariff lines that were combined into tariff 
line 87036010 in T ürkiye's applied tariff schedule covered products that were either unbound (new 
motor cars), or else subject to a bound rate of 19% or 20%. As the additional duties measure applies 
a duty of 120% to products falling under these tariff lines, the Panel conc ludes that Türkiye's 
additional duties measure is inconsistent with Article  II:1(b) of the GATT  1994 to the extent that it 
applies to products subject in Türkiye's bound Schedule to a bound rate of 19% or 20%.  
7.2.3.2.2.3   Conclusion  
7.150.   Based on the foregoing, the Panel f inds that the United  States  has demonstrated that 
Türkiye's additional duties measure is inconsistent with Article  II:1(b) of the GATT  1994 because it 
results in the imposition of ordinary customs duties on imports from the United  States  under 201 
tariff lines in excess of the rates set forth in Türkiye's bound Schedule. In addition, the Panel finds 
that the United  States  has demonstrated that Türkiye's additional duties measure is inconsistent 
with Article  II:1(b) of the GATT  1994 to the  extent that it results in the imposition of ordinary 
customs duties on imports from the United  States  under a further nine tariff lines (210690980012, 
210690980013, 210690980014, 210690980015, 210690980019,  870340100000, 870340900000 , 
870350000000, and 870360100000) in excess of the rates set forth in Türkiye's bound Schedule.  
7.2.3.2.3   Whether the additional duties measure is inconsistent with Article  II:1(a) of the 
GATT  1994  
7.151.   The Panel has explained above that where a measure is inconsistent with Article  II:1(b) of  
the GATT  1994, it is necessarily inconsistent with Article  II:1(a) as well.284 This is so because, where 
a Member imposes duties on imports in excess of those set forth in its schedule, it accords to those 
imports treatment less favourable than that provid ed for in its schedule.285 
7.152.   Having found that the United  States  has demonstrated that Türkiye's additiona l duties 
measure  is inconsistent with Article  II:1(b) of the GATT  1994 because it imposes ordinary customs  
duties on  United  States -origin imports in exce ss of those set forth in Türkiye's bound Schedule, the 
Panel also finds that the United  States  has demonstrated that the additional duties measure is 
inconsistent with Article  II:1(a) of the GATT  1994 because it accords to those imports treatment less 
favourable than that provided for in Türkiye's  bound  Schedule.  
7.2.3.3   Conclusion  
7.153.   For the reasons outlined above, the Panel finds that the additional duties measure is 
inconsistent with Articles II:1(a) and II:1(b) of the GATT  1994. 
 
283 International Convention on the Harmonized Commodity Description and Coding System, Changes in 
the Harmonized System to be Introduced on 1  January  2017 (5  April 2016), G/MA/W/121, p. 58.  
284 See para.  7.125  above . 
285 Appellate  Body Report, Argentina – Textiles and Apparel , para.  47. WT/DS561/R  
 
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  8  CONCLUSIONS AND RECOMMENDATION  
8.1.  For the reasons set forth in this Report, the Panel concludes:  
a. Article  8.2 of the Agreement on Safeguards and Article  XIX:3(a) of the GATT  1994 do not 
apply to Türkiye's additional duties measure. Accordingly, the application of Articles I and 
II of the GATT  1994 is not suspended in relation to that measure.  
b. Regarding the United  States ' claim under Article  I:1 of the GATT  1994: 
i. Türkiye's additional duties measure is inconsistent with Article  I:1 of the GATT  1994 
because, with respect to customs duties imposed on or in connection with importation, 
it fails to accord an advantage granted to products originating in other countries  
immediately and unconditionally to products originating in the United  States.  
c. Regarding the United  States ' claims under Articles II:1(a) and II:1(b) of the GATT  1994: 
i. Türkiye's additional duties measure is inconsistent with Article  II:1(b) of the 
GATT  1994 because it results in the imposition of ordinary customs duties on imports 
from the United  States  under 201 tariff lines in excess of the rates set forth in Türkiye's  
bound  Schedule .  
ii. In addition, the additional duties measure is inconsistent with Article  II:1(b) of the 
GATT  1994 to the extent that it results in the imposition of o rdinary customs duties  on 
imports from the United  States  under  a further nine tariff lines ( 210690980012, 
210690980013, 210690980014, 210690980015, 210690980019 , 870340100000, 
870340900000 , 870350000000, and 870360100000 ) in excess of the rates set forth 
in Türkiye's  bound  Schedule; and  
iii. Türkiye's additional duties measure is inconsistent with Article  II:1(a) of the 
GATT  1994 because it imposes ordinary customs duties on United  States -origin 
imports in excess of those set forth in Türkiye's  bound  Schedule, t hus according to 
those imports treatment less favourable than that provided for in Türkiye's  bound  
Schedule.  
8.2.  Under Article  3.8 of the DSU, in cases where there is an infringement of the obligations 
assumed under a covered agreement, the action is considere d prima facie  to constitute a case of 
nullification or impairment. The Panel concludes that, to the extent that Türkiye's additional duties 
measure is inconsistent with certain provisions of the GATT  1994, it has nullified or impaired benefits 
accruing to the United  States  under that Agreement.  
8.3.  Pursuant to Article  19.1 of the DSU, the Panel recommends that Türkiye bring its 
WTO-inconsistent measure into conformity with its obligations under the GATT  1994, to the extent 
that it has not already do ne so.  
__________