. /.  WORLD TRADE  
ORGANIZATION  WT/DS269/7 
27 June 2005 
 (05-2790) 
 Original:   English 
  
 
EUROPEAN COMMUNITIES – CUS TOMS CLASSIFICATION OF 
FROZEN BONELESS CHICKEN CUTS 
 
Notification of an Other Appeal by Brazil
 
under Article 16.4 and Article 17 of the Understanding on Rules  
and Procedures Governing the Settlement of Disputes (DSU),  
and under Rule 23(1) of the Working Procedures for Appellate Review   
   
 The following notification, dated 27 June 2005,  from the Delegation of Brazil, is being 
circulated to Members.  
_______________ 
 
Pursuant to Articles 16 and 17 of the Understanding on Rules and Procedures Governing the 
Settlement of Disputes  (DSU) and Rule 23 of the Working Pr ocedures for Appellate Review, Brazil 
hereby notifies its decision to appeal certain issu es of law and legal interp retation contained in the 
Panel report in European Communities – Customs Classifica tion of Frozen Boneless Chicken Cuts  
(WT/DS269/R).  
Brazil seeks appellate review of: 
 
1) The Panel’s Term of Reference 
 
a) The Panel's conclusion that EC Regulati on No. 1871/2003 and EC Regulation No. 
2344/2003 are measures outside
 the Panel’s terms of reference1 based, inter alia , on 
its interpretation that Brazil’s Panel requ est was not broad enough to include EC 
Regulation No. 1871/2003 and EC Regulation No. 2344/2003.2  This conclusion was 
based on an erroneous interpretation of Articles 6.2 and 7 of the DSU. 
 
b) The Panel’s conclusion that the product within its terms of reference is “ frozen 
boneless chicken cuts impregnated with a salt content of 1.2%-3% ”.3 In particular, the 
Panel’s interpretation that the product at  issue is determined by the measures 
considered by the Panel to be within it s terms of reference and not by the product 
described in Brazil’s Panel request4 is not consistent with Articles 6.2 and 7 of the 
DSU. 
 
2) Contextual Interpretation of the EC Schedule: Harmonized System (HS)  
 
                                                      
1 Panel Report, paras. 6.15 and 7.32. 
2 Panel Report, paras. 6.9, 6.13, 7.28 and 7.29. 
3 Panel Report, paras. 6.16-6.18 and 7.36. 
4 Panel Report, paras. 6.18 and 7.36. WT/DS269/7 
Page 2  
 
 a) The Panel’s conclusion that the evolution of the terms and structure of Chapter 2 of 
the Harmonized System (HS) do not clarify the meaning of the concession contained in heading 0210 of the EC Schedule,
5 specifically in view of its finding that the 
evolution of the terms and structure does not indicate that the predecessor to HS heading 0210 was characterized by the notion of “preparation” and not 
“preservation”.
6 
 
b) The Panel’s conclusion that the HS Notes and Explanatory Notes do not  clarify the 
meaning of the concession contained in heading 0210 of the EC Schedule.7  I n  
particular, the finding that the HS Explanatory Notes to heading 0210 and Chapter 2 
and the HS Notes to Chapter 16 do not help  in the interpretation of heading 0210 
because the terms “preparation” and “preserva tion” may not be mutually exclusive in 
the context of heading 0210.8 
 
c) The Panel’s decision not  to apply General Rule 3 in th e interpretation of heading 0210 
based on its improper reliance on and acceptance of the parties’ alleged position that - 
within their analysis – the products at issue are not prima facie  classifiable under two 
or more headings.9 
 
d) The Panel’s overall conclusion that the HS does not further clarify the interpretation 
of the concession contained in heading 0210 of  the EC Schedule, in so far as this 
conclusion was based on the Panel’s flawed interpretations of the evolution of the 
terms and structure of HS Chapter 2; th e HS [Explanatory] Notes to Chapter 2, 
heading 0210 and Chapter 16; and th e application of General Rule 3.10 
 
Brazil requests that the Appellate Body reverse the conclusions and findings listed above.  In 
the event the Appellate Body reverses the Panel’ s decision not to apply General Rule 3, Brazil 
requests that the Appellate Body complete the lega l analysis by examining Brazil’s claim that the 
application of General Rule 3 leads to the classi fication of the product under heading 0210 on the 
basis of the Panel’s factual findings and the facts on the record.  
The provisions of the WTO Agreement that Brazi l considers the Panel to have erroneously 
interpreted or applied are Articles 6.2 and 7 of th e DSU and heading 0210 of the EC Schedule read in 
conjunction with Articles II:1(a) and II:1(b) of the GATT 1994. 
__________ 
 
                                                     
 
5 Panel Report, para. 7.205. 
6 Panel Report, paras. 7.204 and 7.205. 
7 Panel Report, paras. 7.223. 
8 Panel Report, paras. 7.222 and 7.223. 
9 Panel Report, paras. 7.238 and 7.241. 
10 Panel Report, Para. 7.241.