WT/DS472/9  
 
6 October 2017  
(17-5380) Page: 1/2 
  Original: English  
 
BRAZIL – CERTAIN MEASURES CON CERNING TAXATION AND  CHARGES  
NOTIFICATION OF AN O THER APPEAL BY THE E UROPEAN UNION UNDER ARTICLE 16.4  
AND ARTICLE 17 OF TH E UNDERSTANDING ON RUL ES AND PROCEDURES  GOVERNING  
THE SETTLEMENT OF DI SPUTES (DSU ), AND UNDER RULE 23 (1) OF  
THE WORKING  PROCEDURES FOR APPEL LATE REVIEW  
The following communication, dated 3 October 2017 , from the delegation of the European Union , 
is being circulated to Members.  
 
________________  
 
 
Pursuant to Article 16.4 and Article 1 7.1 of DSU, the European Union  hereby notifies to the 
Dispute  Settlement Body its decision to appeal to the Appellate Body certain issues of law covered 
in the Panel Report and certain legal interpretations developed by the Panel in the dispute Brazil  – 
Certain Measures Concerning Taxation and Charges  (WT/DS472) . Pursuant to Rule  23(1) of the 
Working Procedures for Appellate Review , the European Union simultaneously files this Notice of 
Other Appeal with the Appellate Body Secretariat.  
For the reasons to be  further elaborated in its submissions to the Appellate Body, the 
European  Union appeals, and requests the Appellate Body to reverse or modify  the findings and 
conclusions of the Panel with respect to the errors of law and legal interpretations contained i n the 
Panel Report described below, and where indicated to complete the analysis on the basis of the 
Panel's findings and uncontested facts on the record :1 
1. The Panel failed to make an objective assessment of the matter before it in accordance with 
Article 11 of DSU by exercising false judicial economy in relation to the European Union's 
request to make findings also on the in -house scenario in the context of the ICT and 
INOVAR -AUTO programmes.2 Thus, the European Union requests the Appellate Body to 
reverse  the Panel's findings, to complete the legal analysis  with regard to the in -house 
scenario and to find  that the production -step requirements  contained in th e ICT and 
INOVAR -AUTO programmes  are inconsistent with Articles III:4 of GATT 1994, Article 2.1 of 
TRIMS Agreement and Article 3.1(b) of SCM Agreement also under  the in -house  scenario . 
2. In the alternative, were the Appellate Body to consider that the Panel correctly exercised 
judicial economy when failing to make specific findings on the in -house scenario, the 
European Union requests the Appellate Body to review , pursuant to Article 17.6 of DSU, the 
legal interpretations developed by the Panel and modify, pu rsuant to Article 17.13 of DSU, 
the findings contained in paragraphs 7.298 -7.314 and 7.746 -7.751 of its Report, so as to 
make it clearer that the Panel indeed did not need to rule twice on the production step 
requirements (in the in -house and in the outsou rcing scenarios) because the Panel had 
already found that those steps are per se  inconsistent with the covered agreements, since 
they make an advantage/subsidy contingent upon the use of domestic over imported goods, 
                                                
1 Pursuant to Rule 23(2)(c)(ii)(C) of the Working Procedures for Appellate Review  this Notice of Other 
Appeal includes an indicative list of the paragraphs of the Panel Report containing the alleged errors, without 
prejudice to the ability of the European Union to refer to other paragraphs of the Panel Report in the context of 
its appe al. 
2 Panel Report, paras. 6.10, 6.11 and 6.13, 7.314, 7.749, and 8.5.  WT/DS472/9  
 
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  regardless of whether those domestic go ods are manufactured by the accredited company or 
a third party.3 
3. Finally, the European Union makes a subordinate claim of error, subject to the 
Appellate  Body rejecting both the first claim of error formulated by the European Union (that 
the Panel exercis ed false judicial economy) and the alternative claim of appeal. In that case, 
the European Union requests the Appellate Body to find that the Panel, by failing to consider 
the European Union's claims under Article III:4 of GATT 1994, Article 2.1 of 
TRIMS Agreement and Article 3.1(b) of SCM Agreement in light of all the relevant facts of 
the case (which included both the in -house and outsourcing scenarios), erred in the 
application of those provisions.4 Accordingly, the European Union requests the  
Appellate  Body to reverse  the Panel's findings, to complete the legal analysis  with regard to 
the in -house scenario and to find  that the production -step requirements  contained in the ICT 
and INOVAR -AUTO programmes  are inconsistent with Articles III:4 of GATT 1994, A rticle 2.1 
of TRIMS Agreement and Article 3.1(b) of SCM Agreement also under  the in -house  scenario .  
__________  
                                                
3 See Panel Report, paras. 6.11, final sentence, 7.292, footnote 683, 7.319, penultimate sentence, 
7.500 and 8.5.  
4 Panel Report, paras. 6.10, 6.11 and 6.13, 7.314, 7.749, and 8.5.