WORLD TRADE  
ORGANIZATION  WT/DS375/R 
WT/DS376/R 
WT/DS377/R 
16 August 2010 
 (10-4232) 
 Original:   English 
  
 
     
EUROPEAN COMMUNITIES AND ITS MEMBER STATES – 
TARIFF TREATMENT OF CERTAIN INFORMATION 
TECHNOLOGY PRODUCTS 
 
 
Reports of the Panel 
 
   
 
     
 
    
 
 
 
Note by the Secretariat:  
 
In the disputes WT/DS375, WT/DS376, and WT/DS377, as explained in paragraph 2.4 of the Panel's Findings, 
the Panel decided to issue its Reports in the form of a single document constituting three Panel Reports, each of 
the Reports relating to each one of th e three complainants in this disput e.  The document comprises a common 
cover page, a common Descriptive Part and a common set of Findings in relation to the complainants' claims that the Panel decided to address.  This document also contains Conclusions and Recommendations that, unlike 
the Descriptive Part and the Findings, are particularised for each of the complainants.  Specifically, in the 
Conclusions and Recommendations, separate document numbers/symbols have been used for each of the complainants (WT/DS375 for the United States, WT/DS3 76 for Japan and WT/DS377 for Chinese Taipei).   
 
  WT/DS375/R 
 WT/DS376/R 
 WT/DS377/R 
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  TABLE OF CONTENTS 
Page
 
I. INTRODUCTION ................................................................................................................... .1 
A. COMPLAINTS OF THE UNITED STATES , JAPAN AND CHINESE TAIPEI ............................................1  
B. ESTABLISHMENT AND COMPOSITION OF THE PANEL ...................................................................1  
C. PANEL PROCEEDINGS ..................................................................................................................2  
II. FACTUAL ASPECTS ..............................................................................................................3  
A. MEASURES AT ISSUE ...................................................................................................................3  
1. FPDs ........................................................................................................................... ................3  
2. STBCs .......................................................................................................................... ..............4  
3. MFMs........................................................................................................................... ..............4  
B. REQUEST FOR INFORMATION FROM THE WORLD CUSTOMS ORGANIZATION ...........................4  
C. REQUEST FOR SEPARATE REPORTS .............................................................................................4  
III. PARTIES' REQUESTS FOR FIND INGS AND RECOMMENDATIONS.........................5  
A. UNITED  STATES,  JAPAN  AND  CHINESE  TAIPEI ...............................................................5  
1. FPDs ........................................................................................................................... ................5  
2. STBCs .......................................................................................................................... ..............5  
3. MFMs........................................................................................................................... ..............5  
B. EUROPEAN COMMUNITIES ..........................................................................................................5  
IV. ARGUMENTS OF THE PARTIES ........................................................................................6  
V. ARGUMENTS OF THE THIRD PARTIES ..........................................................................6  
VI. INTERIM REVIEW................................................................................................................. 6 
A. BACKGROUND .............................................................................................................................6  
B. PARTIES ' REQUESTS FOR CHANGES TO THE INTERIM REPORTS ....................................................6  
1. General Comments ............................................................................................................... ....6 
(a) Comments by the Complainants .................................................................................................6  
(b) Comments by the European Communities................................................................................10  
2. Flat Panel Display Devices (FPDs) ........................................................................................13  
(a) Comments by the Complainants ...............................................................................................13  
(b) Comments by the European Communities................................................................................14  
3. Set Top Boxes Which Have a Communication Function (STBCs).....................................17  
(a) Comments by the Complainants ...............................................................................................17  
(b) Comments by the European Communities................................................................................18  
4. Multifunctional Digital Machines (MFMs)...........................................................................21  
(a) Comments by the complainants................................................................................................21  WT/DS375/R 
WT/DS376/R WT/DS377/R 
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  (b)
 Comments by the European Communities................................................................................22  
5. Other changes to the Interim Reports...................................................................................25  
VII. FINDINGS....................................................................................................................... ........26  
A. SUMMARY OF THE MAIN ISSUES FOR THE PANEL 'S DETERMINATION ........................................26  
B. BACKGROUND ...........................................................................................................................27  
1. The Information Techno logy Agreement (ITA)...................................................................27  
2. Implementation of the ITA ....................................................................................................30  
3. The EC Schedule of concessions ............................................................................................32  
4. The Harmonized System (HS) ...............................................................................................35  
(a) The Harmonized System.......................................................................................................... .35 
(b) The HS General Rules for Interpretation ("GIRs")...................................................................36  
(c) HS Explanatory Notes (HSEN) and opinions by the WCO Council ........................................36  
(d) Amendments to the HS ........................................................................................................... ..37 
5. Tariff classification in the European Communities .............................................................37  
(a) The Combined Nomenclature...................................................................................................37  
(b) The Customs Code Committee and the EC Comitology procedure .........................................39  
(c) Interpretation of the CN....................................................................................................... .....40  
(i) HS Explanatory Notes (HSEN) and Opinions by the HS Committee........................................40  
(ii) Classification Regulations ..................................................................................................... ...41 
(iii) Explanatory Notes to the Comb ined Nomenclature (CNEN)....................................................41  
(iv) Statements of the Customs Code Committee in the framework of Article 8 of 
Regulation No. 2658/87 ......................................................................................................... ...41 
(v) Binding Tariff Information (BTI) ..............................................................................................4 2 
C. GENERAL ISSUES .......................................................................................................................43  
1. Burden of proof................................................................................................................ .......43  
2. Treaty interpretation.......................................................................................................... ....44  
D. PRELIMINARY HORIZONTAL ISSUES ..........................................................................................45  
1. The status of the complainants as third parties in this dispute...........................................45  
(a) The notification of interest to participate as third parties .........................................................46  
(b) Multiple complainants and the joint panel request ...................................................................48  
(c) Conclusions.................................................................................................................... ...........49  
2. The status of the EC member States as respondents in this dispute ..................................49  
(a) Arguments of the parties....................................................................................................... ....49  
(b) Consideration by  the Panel ..................................................................................................... ..50  WT/DS375/R 
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  3.
 Order of analysis for the complainants' claims under Articles II and X of the 
GATT 1994 ...................................................................................................................... ........52  
(a) Arguments of the parties....................................................................................................... ....52  
(b) Consideration by  the Panel ..................................................................................................... ..53 
4. Characterization of the Panel's task fo r the complainants' claims under Article 
II of the GATT 1994 ............................................................................................................ ...54 
5. What is required in order to prove an "as such" claim in the circumstances of 
this case ...................................................................................................................... ..............55  
E. FLAT PANEL DISPLAY DEVICES (FPD S) ...................................................................................58  
1. Preliminary Issues............................................................................................................. ......59  
(a) The measures at issue specifically identified in the Panel request............................................60  
(b) Are versions of the CN adopted by the European Communities subsequent to the 
consultations request and establishment of this Panel within the Panel's terms of 
reference?..................................................................................................................... .............61  
Whether the Panel's terms of reference are broad enough to include subsequent amendments to 
the CN ......................................................................................................................... ............................ 63  
Whether subsequent amendments to Council Regulation No. 2658/87 change the essence of 
the version of that was iden tified by the complainants......................................................................... ... 64 
Whether the inclusion of any amendments within a panel's terms of reference is necessary to 
secure a positive solu tion to the dispute ...................................................................................... ............ 64  
Conclusions.................................................................................................................... ......................... 65  
(c) Is CNEN 2008/C 133/01 a measure that can be subject to WTO dispute settlement? .............65  
(i) Arguments of the parties ....................................................................................................... ....65  
(ii) Consideration by the Panel..................................................................................................... ..67 
(d) Are Commission Regulation Nos. 634/2005 and 2171/2005 outside the Panel's 
jurisdiction because they are no long er effectively applicable?................................................70  
(i) Arguments of the parties ....................................................................................................... ....70  
(ii) Consideration by the Panel..................................................................................................... ..70 
(e) Whether the Panel may consider the continuation of a duty suspension on imports of 
particular flat panel display devices sub sequent to the consultations request and 
establishment of this Panel?................................................................................................... ...72 
(i) Arguments of the parties ....................................................................................................... ....72  
(ii) Consideration by the Panel..................................................................................................... ..72 
Whether the Panel's terms of reference are broad enough to include Council Regulations Nos. 
301/2007 and 179/2009.......................................................................................................... ................. 74  
Whether the inclusion of Council Regulations Nos. 301/2007 and 179/2009 change the 
essence of Council Re gulation No. 493/2005 ..................................................................................... .... 74 
Whether the inclusion of any amendments within a panel's terms of reference is necessary to 
secure a positive solu tion to the dispute ...................................................................................... ............ 76  
Conclusions.................................................................................................................... ......................... 76  WT/DS375/R 
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  (f)
 Did the complainants adequately identify the products at issue in the Panel request? .............76  
(i) Arguments of the parties ....................................................................................................... ....76  
(ii) Consideration by the Panel..................................................................................................... ..77 
(g) Have the complainants identified obligat ions "with the necessary clarity" for the 
European Communities to defend itself and for the Panel to rule on the complainants' 
claims under Articles II:1(a) and II:1(b) of the GATT 1994? ..................................................78  
(i) Arguments of the parties ....................................................................................................... ....78  
(ii) Consideration by the Panel..................................................................................................... ..80 
Whether the complainants sufficiently identified the obligations in their Panel request to 
permit the Pane l to proceed.................................................................................................... ................. 81  
Is the commitment arising under the narrative product description for "flat panel display 
devices" located in the Annex to the EC Schedule, Attachment  B, or both? .......................................... 83  
2. The measures at issue and their effects.................................................................................84  
(a) Council Regulation No. 2658/87, as amended by Commission Regulation No. 
948/2009 ....................................................................................................................... ............84  
(i) Arguments of the parties ....................................................................................................... ....86  
(ii) Consideration by the Panel..................................................................................................... ..87 
(b) CNEN 2008/C 133/01............................................................................................................. ..88 
(i) Arguments of the parties ....................................................................................................... ....90  
(ii) Consideration by the Panel..................................................................................................... ..92 
(c) Commission Regulation Nos. 634/2005 and 2171/2005 ..........................................................94  
(i) Arguments of the parties ....................................................................................................... ....96  
(ii) Consideration by the Panel..................................................................................................... ..97 
(d) The continuation of the duty suspension under Council Regulation No. 179/2009 ...............100  
(i) Arguments of the parties ....................................................................................................... ..100  
(ii) Consideration by the Panel..................................................................................................... 101 
(e) The application of a 14 per cent customs dut y on imports of certain flat panel display 
devices ........................................................................................................................ ............102  
(f) Conclusions.................................................................................................................... .........102  
3. The complainants' further identification of the products at issue....................................103  
(a) Arguments of the parties....................................................................................................... ..103  
(b) Consideration by  the Panel ..................................................................................................... 106 
4. Whether the European Communities' tariff treatment of particular flat panel 
displays is consistent with its obligations under Article II of the GATT 1994 ................108  
(a) The ordinary meaning of the relevant concession: The EC headnote and narrative 
product description for FPDs in th e Annex to the EC Schedule.............................................108  
(i) The meaning of the terms of the EC headnote ........................................................................110   WT/DS375/R 
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  Arguments of the parties ....................................................................................................... ................ 110  
wherever the product  is cla ssified............................................................................................. ..... 110  
to the extent not specifically prov ided for in this Schedule ........................................................... 111  
Consideration by  the Panel..................................................................................................... ............... 111  
(ii) The terms of the EC headn ote in their context........................................................................115  
The terms of the EC headnote and Annex to the EC Schedule read in the context of the ITA ............. 116  
Arguments of the parties....................................................................................................... ......... 116  
The preamble and paragraph 1 of the ITA................................................................................. 116  
Paragraph 2 of the ITA and  para graph 2 of the ITA Annex ..................................................... 118  
Paragraph 3 of the ITA Annex .................................................................................................. 1 21 
Paragraph 5 of  the Annex....................................................................................................... ... 122  
Consideration by  the Panel ..................................................................................................... ....... 123  
Does the ITA qualify as context within th e meaning of Article 31 of the Vienna 
Convention? .................................................................................................................... .......... 123  
The EC headnote considered in  the context of the ITA............................................................. 126  
The terms of the EC headnote and Annex to the EC Schedule considered in the context of 
other sections of the EC Schedule.............................................................................................. ........... 134  
Do the modifications made to certain ITA-related concessions in the EC Schedule inform 
our interpretation on the relevan ce of the tariff item numbers?..................................................... 135  
Arguments of the parties ....................................................................................................... .... 135  
Consideration by  the Panel..................................................................................................... ... 136  
Do the WTO Schedules of concessions of other ITA participants inform our interpretation on 
the relevance of the tariff item numbers? ...................................................................................... ........ 139  
What is the relevance of the HS to our interpretation of the concession in the Annex to the EC 
Schedule? ...................................................................................................................... ........................ 143  
Arguments of the parties....................................................................................................... ......... 143  
Consideration by  the Panel ..................................................................................................... ....... 144  
Preliminary conclusions: The Panel's interpretati on of the role of the EC headnote in the 
Annex to the EC Schedule....................................................................................................... .............. 146  
(iii) The meaning of the terms of the FPDs narrati ve description in the Annex to the EC 
Schedule....................................................................................................................... ...........146  
The meaning of the terms of the FPDs narrative description ................................................................ 146  
Arguments of the parties....................................................................................................... ......... 146  
The meaning of the term "Flat panel display de vices " ............................................................. 147  
The meaning of the term "for".................................................................................................. .1 5 1 
The meaning of the term "products falling within this  agreement"........................................... 152  
Consideration by  the Panel ..................................................................................................... ....... 152  
"Flat panel disp lay devices" ................................................................................................... ... 153  
"for".......................................................................................................................... ................. 155  WT/DS375/R 
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  "products falling within this Agreem ent".................................................................................. 155  
Preliminary conclusion on the meaning of  the FPDs narrative description............................... 156  
(iv) The terms of the FPDs narrative description in their context ................................................156  
Other parts of the EC Schedule as context ...................................................................................... ...... 156  
The descriptions in the 14 tariff item numbers in connection with the FPDs narrative 
description as  context ......................................................................................................... ........... 157  
Arguments of the parties ....................................................................................................... .... 158  
Consideration by  the Panel..................................................................................................... ... 159  
The narrative description for "monitors" as context ...................................................................... 160  
Arguments of the parties ....................................................................................................... .... 160  
Consideration by  the Panel..................................................................................................... ... 161  
The narrative description for "netwo rk equipment" as  context...................................................... 163  
Arguments of the parties ....................................................................................................... .... 163  
Consideration by  the Panel..................................................................................................... ... 163  
The narrative descriptions for "projection type flat panel display units used with 
automatic data-processing machines..." and "m ultimedia upgrade kits for automatic data-
processing machines..." as context............................................................................................. .... 164  
Arguments of the parties ....................................................................................................... .... 164  
Consideration by  the Panel..................................................................................................... ... 165  
The WTO Schedules of other WTO Members...................................................................................... 166  
Arguments of the parties....................................................................................................... ......... 167  
Consideration by  the Panel ..................................................................................................... ....... 168  
(v) Object and purpose............................................................................................................. ....171  
Arguments of the parties ....................................................................................................... ................ 171  
Consideration by  the Panel..................................................................................................... ............... 172  
(vi) Subsequent practice (Article 31(3)(b) of the Vienna Convention)..........................................174  
Arguments of the parties ....................................................................................................... ................ 175  
Classification practice of the Unite d Stat es ................................................................................... 175 
Classification practice of ITA partic ipants between 1 997 and 1999.............................................. 175  
Consideration by  the Panel..................................................................................................... ............... 176  
(vii) Other arguments ................................................................................................................ .....179  
Landscape papers submitted during  negotiation of  the ITA.................................................................. 179  
Arguments of the parties....................................................................................................... ......... 179  
Consideration by  the Panel ..................................................................................................... ....... 181  
Proposals during IT A II negotiations ........................................................................................... ......... 183  
Arguments of the parties....................................................................................................... ......... 183  
Consideration by  the Panel ..................................................................................................... ....... 184   WT/DS375/R 
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  The state of technology at th e time of ITA negotiations ....................................................................... 1 85 
Arguments of the parties....................................................................................................... ......... 185  
Consideration by  the Panel ..................................................................................................... ....... 186  
Other arguments - Conclusion................................................................................................... ............ 188  
(viii) Overall conclusions on interpretation of the FPDs narrative product description in 
the Annex to the EC Schedule .................................................................................................18 9 
(b) The ordinary meaning of the relevant concession: tariff item number 8471 60 90 in 
the EC Schedule................................................................................................................ ......189  
(i) The meaning of the terms of tariff item number 8471 60 90 in the EC Schedule ...................190  
Arguments of the parties ....................................................................................................... ................ 190  
Input or out put units.......................................................................................................... ............. 191  
Consideration by  the Panel..................................................................................................... ............... 193  
(ii) The terms of tariff item numb er 8471 60 90 in their context ..................................................194  
The terms of HS1996 heading 8471, other subhe adings under it and its overall structure.................... 195  
Arguments of the parties....................................................................................................... ......... 195  
Consideration by  the Panel ..................................................................................................... ....... 196  
The HS1996:  Note 5 to Chapter 84 and the HSEN1996 to heading 8471 and heading 8528............... 198  
Notes 5(B) and 5(C) to HS1996 Chapter 84.............................................................................. 199  
HSEN1996 to heading 8471 and heading 8528......................................................................... 200  
The application of GIR 3(c) .................................................................................................... .. 201 
Consideration by  the Panel ..................................................................................................... ....... 201  
Other parts of the EC Schedule ................................................................................................. ............ 209  
(iii) Object and purpose (Article 31 of the Vienna Convention)....................................................210  
Arguments of the parties ....................................................................................................... ................ 210  
Consideration by  the Panel..................................................................................................... ............... 211  
(iv) Subsequent practice (Article 31(3)(b) of the Vienna Convention)..........................................211  
(v) Other arguments ................................................................................................................ .....212  
Arguments of the parties ....................................................................................................... ................ 212  
Consideration by  the Panel..................................................................................................... ............... 212  
(vi) Overall conclusions on the ordinary meaning of the terms tariff item number 
8471 60 90 in the EC Schedule...............................................................................................215  
(c) Do the flat panel displays at issue which ar e the subject of this dispute fall within the 
scope of the narrative description in the Anne x to the EC Schedule or HS 8471 60?............215  
(i) Arguments of the parties ....................................................................................................... ..217  
(ii) Consideration by the Panel..................................................................................................... 223 
The concession pursuant to the FPDs narrative de scription in the Annex to the EC Schedule............. 223  
The concession pursuant to tariff item number 8471 60 90 in th e EC Schedule................................... 224  WT/DS375/R 
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  (d)
 Do the measures at issue provide for duties on products identified by the 
complainants which are in excess of those set forth in the EC Schedule?..............................225  
(e) Do the measures at issue provide less favourab le treatment than that set forth in the 
EC Schedule?................................................................................................................... .......227  
(i) Arguments of the parties ....................................................................................................... ..228  
(ii) Consideration by the Panel..................................................................................................... 229 
F. SET-TOP BOXES WHICH HAVE A COMMUNICATION FUNCTION (STBC S) ................................230  
1. Preliminar y issues ............................................................................................................. ....232  
(a) STBCs:  The measures at issue...............................................................................................233  
(b) Is CNEN 2008/C 112/03 a measure that can be subject to WTO dispute settlement? ...........233  
(c) Have the complainants' identifie d the EC concession at issue?..............................................234  
Is the relevant commitment located in the Annex to  the EC Schedule, Attachment B, or both? .......... 235  
What are the implications of the reference to  "set top boxes with a communication function" 
to this dispute?............................................................................................................... ........................ 235  
2. The measures at issue and their effects...............................................................................237  
(a) Council Regulation No. 26 58/87, as amended........................................................................237  
(i) Arguments of the parties ....................................................................................................... ..238  
(ii) Consideration by the Panel..................................................................................................... 238 
(b) CNEN 2008/C 112/03............................................................................................................. 239 
(i) Arguments of the parties ....................................................................................................... ..241  
(ii) Consideration by the Panel..................................................................................................... 242 
(c) The application of duties on imports of certain set top boxes.................................................243  
(d) Conclusions.................................................................................................................... .........243  
3. The complainants' further identification of the products at issue....................................243  
(a) Arguments of the parties....................................................................................................... ..243  
(b) Consideration by  the Panel ..................................................................................................... 245 
4. Whether the European Communities' tariff treatment of particular set top boxes 
is consistent with its obligations under Article II of the GATT 1994...............................246  
(a) The Ordinary Meaning of the Relevant Concession: The EC headnote and narrative 
product description for STBCs in the Annex to the EC Schedule ..........................................246  
(i) The meaning of the terms of the EC headnote ........................................................................248  
(ii) The terms of the STBCs narra tive description in the Annex to the EC Schedule....................249  
The meaning of the terms "s et top boxes which have a communication function" ............................... 250  
The meaning of the te rms "set top box"......................................................................................... 250 
Arguments of the parties ....................................................................................................... .... 250  
Consideration by  the Panel..................................................................................................... ... 252  
The terms "which have a communication function" ...................................................................... 253   WT/DS375/R 
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  Arguments of the parties ....................................................................................................... .... 253  
Consideration by  the Panel..................................................................................................... ... 254  
The relevance of the colon to an understa nding of the terms in  the concession ............................ 255  
Arguments of the parties ....................................................................................................... .... 255  
Consideration by  the Panel..................................................................................................... ... 256  
Textual analysis of the phrase "a microproce ssor-based device incorporating a modem for 
gaining access to the Internet, and having a func tion of interactive information exchange"......... 256  
The terms "incorporating a modem".............................................................................................. 256 
Arguments of the parties ....................................................................................................... .... 256  
Consideration by  the Panel..................................................................................................... ... 260  
The terms "for gaining access to the Internet, and having a function of interactive 
information exchange".......................................................................................................... ......... 261  
Arguments of the parties ....................................................................................................... .... 261  
Consideration by  the Panel..................................................................................................... ... 262  
Preliminary conclusions on the textual analys is of the STBCs narrative description............................ 263  
(iii) The terms of the STBCs narrative description in their context...............................................263  
Other parts of the EC Schedule as context ...................................................................................... ...... 264  
The descriptions in the tariff item numbers 8517 50 90, 8517 80 90, 8525 20 99 and 
8528 12 91 in connection with the STBCs narrative desc ription as context.................................. 264  
Arguments of the parties ....................................................................................................... .... 264  
Consideration by  the Panel..................................................................................................... ... 266  
Other descriptions in the Annex to the EC Schedule in context .................................................... 268  
Arguments of the parties ....................................................................................................... .... 268  
Consideration by  the Panel..................................................................................................... ... 268  
The WTO Schedules of other WT O Members as context..................................................................... 271  
Arguments of the parties....................................................................................................... ......... 272  
Consideration by  the Panel ..................................................................................................... ....... 272  
(iv) Object and purpose............................................................................................................. ....274  
Arguments of the parties ....................................................................................................... ................ 274  
Consideration by  the Panel..................................................................................................... ............... 275  
(v) Subsequent practice (Article 31(3)(b) of the Vienna Convention)..........................................275  
Arguments of the parties ....................................................................................................... ................ 275  
Consideration by  the Panel..................................................................................................... ............... 276  
(vi) Other arguments – Surrou nding circumstances .....................................................................277  
Landscape papers submitted during  negotiation of  the ITA.................................................................. 278  
Arguments of the parties....................................................................................................... ......... 278  
Consideration by  the Panel ..................................................................................................... ....... 279  WT/DS375/R 
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  The state of technology at th e time of ITA negotiations ....................................................................... 2 80 
Arguments of the parties....................................................................................................... ......... 280  
Consideration by  the Panel ..................................................................................................... ....... 281  
(vii) Overall conclusions on the interpretation of  the narrative description for STBCs in 
the Annex to the EC Schedule .................................................................................................28 2 
(b) The ordinary meaning of the relevant concession: the United States' claim in 
connection with tariff item numbers 8517 50 90, 8517 80 90, 8525 20 99 and 
8528 12 91 in the EC Schedule...............................................................................................283  
(c) Do the set top boxes which are the subject of this dispute fall within the scope of the 
narrative description in the Annex to the EC Schedule?.........................................................284  
(i) Arguments of the parties ....................................................................................................... ..285  
Do products which incorporate ISDN, WLAN, an d Ethernet technology incorporate modems 
for gaining access to  the Internet?............................................................................................ ............. 285  
Are the products at issue which incorporate additional features still set top boxes of a type 
covered by the STBCs Concession?............................................................................................... ....... 287  
(ii) Consideration by the Panel..................................................................................................... 288 
(d) Does the CN, in conjunction with CNEN 2008/C 112/03, provide for duties on 
products identified by the complainants whic h are in excess of those set forth in the 
EC Schedule?................................................................................................................... .......290  
(e) Does the CN, in conjunction with the CNEN 2008/C 112/03 provide less favourable 
treatment than that set forth in the EC Schedule?...................................................................291  
5. Whether the European Communities' actions concerning the delivery of opinions with respect to the proposed amendments to the Explanatory Notes 
contained in 2008/C 112/03 are inconsistent with Articles X:1 and X:2 of the 
GATT 1994 ...................................................................................................................... ......291
 
(a) Summary of main issues for the Panel's determination ..........................................................291  
(b) The measures at issue.......................................................................................................... ....293  
(c) The United States' and Chinese Taipei's claim under Article X:1 of the GATT 1994 ...........296  
(i) Main claim of the parties ...................................................................................................... ..296  
The arguments of  the Parties................................................................................................... .............. 296  
Consideration by  the Panel..................................................................................................... ............... 297  
(ii) Whether the measures at issue are laws , regulations, judicial decisions or 
administrative rulings of general application pertaining to the classification of 
products for customs purposes................................................................................................29 9 
Arguments of the parties ....................................................................................................... ................ 299  
Consideration by  the Panel..................................................................................................... ............... 301  
(iii) Whether the draft CNENs were "made effecti ve" in October 2006 and/or April 2007 ..........306  
Arguments of the parties ....................................................................................................... ................ 306  
Consideration by  the Panel..................................................................................................... ............... 308  
The meaning of "m ade effective" ................................................................................................ .. 308  WT/DS375/R 
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  Whether the CNEN amendments were ma de effective before adoption by the 
Commission ..................................................................................................................... .............. 309  
When were the CNEN amendm ents made effective? .................................................................... 315  
(iv) Whether the measures at issu e were published "promptly"....................................................316  
Arguments of the parties ....................................................................................................... ................ 316  
Consideration by  the Panel..................................................................................................... ............... 316  
(v) Whether the measures at issue were publis hed "in such a manner as to enable 
governments and traders to become acquainted with them". .................................................318  
Arguments of the parties ....................................................................................................... ................ 318  
Consideration by  the Panel..................................................................................................... ............... 319  
(vi) Conclusions regarding the complainan ts' claim under Article X:1........................................322  
(d) The United States' and Chinese Taipei's claim under Article X:2 of the GATT 1994 ...........322  
(i) Main claims of the parties..................................................................................................... ..322  
Arguments of the parties ....................................................................................................... ................ 322  
Consideration by  the Panel..................................................................................................... ............... 322  
(ii) Whether the measures at issue are a "m easure" and, if so, whether they are of 
"general application" and "taken  by a contracting party" .....................................................323  
Arguments of the parties ....................................................................................................... ................ 323  
Consideration by  the Panel..................................................................................................... ............... 323  
(iii) Whether the measures at issue are of a ki nd effecting an advance in rate of duty 
under an established and uniform practice.............................................................................324  
"effecting an advance in rate of duty" ......................................................................................... .......... 324  
Arguments of the parties....................................................................................................... ......... 324  
Consideration by  the Panel ..................................................................................................... ....... 325  
"Under an established and uniform practice" .................................................................................... .... 328  
Arguments of the parties....................................................................................................... ......... 328  
Consideration by  the Panel ..................................................................................................... ....... 329  
(iv) Whether the draft CNEN were enforce d before official publication.......................................331  
Arguments of the parties ....................................................................................................... ................ 331  
Consideration by  the Panel..................................................................................................... ............... 333  
G. MULTIFUNCTION DIGITAL MACHINES (MFM S)......................................................................335  
1. Preliminar y issues ............................................................................................................. ....337  
(a) The measures at issue identified in the joint Panel request:....................................................337  
(b) Are Commission Regulation Nos. 517/1999 and 400/2006 and the 2005 Statement 
outside the Panel's jurisdiction because they are no longer effectively applicable? ...............339  
(i) Arguments of the parties ....................................................................................................... ..339  
(ii) Consideration by the Panel..................................................................................................... 340 WT/DS375/R 
WT/DS376/R WT/DS377/R 
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  (c)
 Is the 2005 Statement a measure that can be subject to WTO dispute settlement? ................342  
(i) Arguments of the Parties....................................................................................................... ..342  
(ii) Consideration by the Panel..................................................................................................... 342 
Is the 2005 Statement Attributable to the European Communitie s?...................................................... 344  
Does the 2005 Statement set forth rules or norms  of general and prosp ective appli cation?.................. 344  
Conclusion of the Panel........................................................................................................ ................. 345  
(d) Have the complainants added new measures and new claims that were not specified 
in the joint Panel request?.................................................................................................... ...345  
(i) Article 6.2 of the DSU......................................................................................................... ....345  
Identification of the speci fic measures at issue ............................................................................... ...... 346  
Provision of a brief summary of the legal basis of th e complaint ......................................................... 347  
Sufficient to presen t the proble m clearly...................................................................................... ......... 347  
(ii) Codes of the CN other than 8443 31 91..................................................................................348  
Arguments of the parties ....................................................................................................... ................ 348  
Consideration by  the Panel..................................................................................................... ............... 350  
2. The measures at issue and their effects...............................................................................353  
(a) Commission Regulation No. 517/1999...................................................................................353  
(i) Arguments of the parties ....................................................................................................... ..355  
(ii) Consideration by the Panel..................................................................................................... 355 
(b) The 2005 Statement ............................................................................................................. ...356  
(i) Arguments of the parties ....................................................................................................... ..357  
(ii) Consideration by the Panel..................................................................................................... 357 
(c) Commission Regulation No. 400/2006...................................................................................357  
(i) Arguments of the Parties....................................................................................................... ..359  
(ii) Consideration by the Panel..................................................................................................... 359 
(d) The CN2007 codes 8443 31 10; 8443 31 91 and 8443 31 99.................................................359  
(i) Arguments of the Parties....................................................................................................... ..360  
(ii) Consideration by the Panel..................................................................................................... 362 
3. Whether the European Communities' tariff treatment of ADP MFMs is 
consistent with its obligations und er Article II of the GATT 1994...................................364  
(a) The ordinary meaning CN 8471  60 of the EC Schedule.........................................................364  
(i) The meaning of the text of subheading 8471 60......................................................................365  
Arguments of the parties ....................................................................................................... ................ 365  
Input or out put units.......................................................................................................... ............. 366  
Printers....................................................................................................................... .................... 368  
Consideration by  the Panel..................................................................................................... ............... 369   WT/DS375/R 
 WT/DS376/R 
 WT/DS377/R 
 Page xiii 
  
  Input or out put units.......................................................................................................... ............. 370  
Printers....................................................................................................................... .................... 371  
(ii) The terms "input or output units" and "printers" in their context ..........................................371  
The terms of HS1996 heading 8471, other subhe adings under it and its overall structure.................... 371  
Arguments of the parties....................................................................................................... ......... 371  
Consideration by  the Panel..................................................................................................... ... 373  
The HS1996 :  Note 5 to Chapter 84 and Note 3 to Section XVI ........................................................... 374  
Notes 5(B) and 5(C) to Chapter 84............................................................................................ 37 4 
Note 5(D) to Chapter 84 – "printer s" and Note 3 to Section XVI ............................................. 375  
Consideration by  the Panel ..................................................................................................... ....... 377  
Other parts of the EC Schedule ................................................................................................. ............ 382  
Arguments of the parties ....................................................................................................... .... 382  
Consideration by  the Panel..................................................................................................... ... 384  
(iii) Object and purpose............................................................................................................. ....384  
Arguments of the parties ....................................................................................................... ................ 384  
Consideration by  the Panel..................................................................................................... ............... 385  
(iv) Subsequent practice (Article 31(3)(b) of the Vienna Convention)..........................................387  
Arguments of the parties ....................................................................................................... ................ 387  
European Commun ities' Pr actice ................................................................................................. .. 387 
Complainants ' Practice......................................................................................................... .......... 388  
Third Parties'  Practice........................................................................................................ ............ 390  
Consideration by  the Panel..................................................................................................... ............... 391  
(v) Other Arguments................................................................................................................ .....392  
Arguments of the Parties ....................................................................................................... ................ 392  
Consideration by  the Panel..................................................................................................... ............... 394  
(vi) Overall conclusions on the ordinary meani ng of the terms of HS1996 subheading 
8471 60 and CN 8471 60 in the EC Schedule.........................................................................396  
(b) Whether ADP MFMs are "input or output units" within the meaning of 8471 60 .................396  
(i) Arguments of the Parties....................................................................................................... ..397  
(ii) Consideration by the Panel..................................................................................................... 402 
(c) Are there other applicab le tariff headings?.............................................................................404  
(i) Ordinary meaning of the terms of the concession under HS1996 subheading 9009 12 .........404  
Meaning of electrostatic photocopying apparatus operating by reproducing the original image 
via an intermediate onto th e copy (indir ect process)........................................................................... .. 405 
Arguments of the parties....................................................................................................... ......... 405  
Consideration by  the Panel ..................................................................................................... ....... 407  
The terms in Subheading 9 009 12 in their context............................................................................... .4 1 0 WT/DS375/R 
WT/DS376/R WT/DS377/R 
Page xiv 
  
  Arguments of the parties....................................................................................................... ......... 410  
HS 1996 and CN Heading 9009, 1996 HSEN to 9009,  and Chapters 90, 84, and 85 ............... 410  
Heading 9009 ................................................................................................................... ......... 413  
1996 HSEN to Heading 9009.................................................................................................... 41 4 
Consideration by  the Panel ..................................................................................................... ....... 416  
HS1996 Chapter 90 and Ch apters 84 and 85............................................................................. 416  
Heading 9009 ................................................................................................................... ......... 417  
1996 HSEN to Heading 9009.................................................................................................... 41 9 
Object an d purpos e............................................................................................................. ................... 420  
Subsequent practice............................................................................................................ ................... 420  
Arguments of the Parties....................................................................................................... ......... 420  
Consideration by  the Panel ..................................................................................................... ....... 421  
Other Arguments................................................................................................................ ................... 422  
Arguments of the Parties....................................................................................................... ......... 422  
Consideration by  the Panel ..................................................................................................... ....... 422  
Conclusion on or dinary meaning................................................................................................. .......... 423  
(ii) Are ADP MFMs covered by the concession in Subheading 9009 12?....................................423  
Arguments of the parties ....................................................................................................... ................ 424  
Consideration by  the Panel..................................................................................................... ............... 425  
(iii) Are ADP MFMs covered by the con cession in HS1996 subheading 8472 90? ......................427  
Arguments of the Parties ....................................................................................................... ................ 427  
Consideration by  the Panel..................................................................................................... ............... 429  
(iv) Conclusion ..................................................................................................................... .........429  
(d) Do the Measures at Issue Provide for Du ties on ADP MFMs which are in excess of 
those set forth in the EC Schedule? ........................................................................................430  
(i) Commission Regulation No. 517/1999 ...................................................................................430  
(ii) The 2005 Statement............................................................................................................. ....430  
(iii) Commission Regulation No. 400/2006 ...................................................................................431  
(iv) CN2007 codes 8443 31 10, 8443 31  91, and 8443 31 99 .......................................................431  
(e) Do the measures at issue provide less favourab le treatment than that set forth in the 
EC Schedule?................................................................................................................... .......433  
4. Whether the European Communities' tariff treatment of Non-ADP MFMs is 
consistent with its obligations und er Article II of the GATT 1994...................................433  
(a) Are non-ADP MFMs covered by the concession in Subheading 8517 21 of the EC 
Schedule?...................................................................................................................... ..........434  
(i) Arguments of the parties ....................................................................................................... ..434  
(ii) Consideration by the Panel..................................................................................................... 435  WT/DS375/R 
 WT/DS376/R 
 WT/DS377/R 
 Page xv 
  
  (b)
 Are there other applicab le tariff headings?.............................................................................435  
(i) Are non-ADP MFMs covered by the concession in Subheading 9009 12 of the EC 
Schedule?...................................................................................................................... ..........435  
Arguments of the parties ....................................................................................................... ................ 435  
Consideration by  the Panel..................................................................................................... ............... 436  
(ii) Are Non-ADP MFMs covered by the con cession under subheading 8472 90 of the EC 
Schedule?...................................................................................................................... ..........436  
Arguments of the parties ....................................................................................................... ................ 436  
Consideration by  the Panel..................................................................................................... ............... 437  
(c) Do the measures at issue result in the impos ition of duties on the products at issue in 
excess of those provided for in the EC Schedule? ..................................................................437  
(i) Commission Regulation No. 517/1999 ...................................................................................437  
(ii) The 2005 Statement............................................................................................................. ....438  
(iii) Commission Regulation No. 400/2006 ...................................................................................438  
(iv) CN2007 codes 8443 31 10, 8443 31  91, and 8443 31 99 .......................................................438  
(d) Do the measures at issue provide less favourab le treatment than that set forth in the 
EC Schedule?................................................................................................................... .......441  
VIII.  RULINGS AND RECOMMENDATIONS.........................................................................441  
A. COMPLAINT BY THE UNITED STATES (DS375):   CONCLUSIONS OF THE PANEL ......................443  
1. FPDs ........................................................................................................................... ............443  
2. STBCs .......................................................................................................................... ..........445  
3. MFMs........................................................................................................................... ..........445  
4. Nullification and impairment...............................................................................................447  
5. Recommendations................................................................................................................ .447 
B. COMPLAINT BY THE JAPAN (DS376):   CONCLUSIONS OF THE PANEL ......................................449  
1. FPDs ........................................................................................................................... ............449  
2. STBCs .......................................................................................................................... ..........451  
3. MFMs........................................................................................................................... ..........451  
4. Nullification and impairment...............................................................................................453  
5. Recommendations................................................................................................................ .453 
C. COMPLAINT BY THE CHINESE TAIPEI (DS377):   CONCLUSIONS OF THE PANEL ......................454  
1. FPDs ........................................................................................................................... ............454  
2. STBCs .......................................................................................................................... ..........455  
3. MFMs........................................................................................................................... ..........456  
4. Nullification and impairment...............................................................................................458  
5. Recommendations................................................................................................................ .458 WT/DS375/R 
WT/DS376/R WT/DS377/R 
Page xvi 
  
  LIST OF ANNEXES 
 
ANNEX A 
 
SUBMISSIONS OF THE UNITED STATES 
 
CONTENTS PAGE 
A-1 Executive Summary of the first written submission by the  
United States A-2 
A-2 Executive Summary of the opening oral statement by the  
United States at the first substantive meeting A-10 
A-3 Closing oral statement by the United States at the  
first substantive meeting A-19 
A-4 Executive Summary of the second written submission by  
the United States  A-22 
A-5 Executive Summary of the oral statement by  
the United States at the second substantive meeting A-31 
 
ANNEX B 
 
SUBMISSIONS OF JAPAN 
 
CONTENTS PAGE 
B-1 Executive Summary of the first written submission by Japan B-2 
B-2 Executive Summary of the oral statement by Japan at the first 
substantive meeting B-9 
B-3 Executive Summary of the second written submission by Japan B-15 
B-4 Executive Summary of the opening oral statement by Japan at the 
second substantive meeting B-25 
 
ANNEX C 
 
SUBMISSIONS OF CHINESE TAIPEI 
 
CONTENTS PAGE 
C-1 Executive Summary of the first wr itten submission by Chinese Taipei C-2 
C-2 Executive Summary of the oral stat ement by Chinese Taipei at the first 
substantive meeting C-12 
C-3 Closing oral statement by Chinese Taipei at the first substantive 
meeting C-15 
C-4 Executive Summary of the second written submission by Chinese 
Taipei C-17 
C-5 Executive Summary of the oral st atement by Chinese Taipei at the 
second substantive meeting C-30  WT/DS375/R 
 WT/DS376/R 
 WT/DS377/R 
 Page xvii 
  
  ANNEX D 
 
SUBMISSIONS OF THE EUROPEAN COMMUNITIES 
 
 
CONTENTS PAGE 
D-1 Executive Summary of the first written submission by the  
European Communities D-2 
D-2 Executive Summary of the oral statement by the  
European Communities at the first substantive meeting D-12 
D-3 Executive Summary of the second written submission by the  
European Communities  D-20 
D-4 Executive Summary of the oral statement by the  
European Communities at the second substantive meeting D-34 
 
 
 
ANNEX E 
 
ARGUMENTS OF THE THIRD PARTIES 
 
 
CONTENTS PAGE 
E-1 Oral statement by Australia at the first substantive meeting E-2 
E-2 Executive Summary of the third party submission by China E-6 
E-3 Oral statement by China at the first substantive meeting E-8 
E-4 Executive Summary of the third party submission by Costa Rica E-10 
E-5 Oral statement by Costa Rica at the first substantive meeting E-13 
E-6 Oral statement by Hong Kong, Chin a at the first substantive meeting E-16 
E-7 Oral statement by India at the first substantive meeting E-18 
E-8 Executive Summary of the third party submission by Korea E-20 
E-9 Executive Summary of the third party submission by the Philippines E-22 
E-10 Executive Summary of the oral statemen t by the Philippines at the first 
substantive meeting E-24 
E-11 Executive Summary of the third party submission by Singapore E-26 
E-12 Executive Summary of the oral statement by Singapore at the first 
substantive meeting E-29 
E-13 Oral statement by Thailand at the first substantive meeting E-31 
E-14 Executive Summary of the third party submission by Turkey E-33 
E-15 Oral statement by Turkey at the first substantive meeting E-35 
 
 
 WT/DS375/R 
WT/DS376/R WT/DS377/R 
Page xviii 
  
  ANNEX F 
 
JOINT PANEL REQUEST AND MINISTERIAL DECLARATION ON  
TRADE IN INFORMATION TECHNOL OGY PRODUCTS (W T/MIN(96)/16) 
 
CONTENTS PAGE 
F-1 Request for the Establishment of a Panel by the United States, Japan 
and Chinese Taipei (WT/DS375/8, WT/DS376/8 and WT/DS377/6) F-2 
F-2 Ministerial Declaration on Trade in  Information Technology Products 
(WT/MIN(96)/16) F-9 
 
 
 
  WT/DS375/R 
 WT/DS376/R 
 WT/DS377/R 
 Page xix 
  
  TABLE OF WTO CASES CITED IN THESE REPORTS 
 
Short Title Full Case Title and Citation 
Argentina – Footwear (EC)  Appellate Body Report, Argentina – Safeguard Measures on Imports of 
Footwear , WT/DS121/AB/R, adopted 12 January 2000, DSR 2000:I, 515 
Argentina – Footwear (EC)  Panel Report, Argentina – Safeguard Measur es on Imports of Footwear , 
WT/DS121/R, adopted 12 January 2000, as modified by Appellate Body Report 
WT/DS121/AB/R, DSR 2000:II, 575 
Argentina – Textiles and 
Apparel  Appellate Body Report, Argentina – Measures Affecting Imports of Footwear, 
Textiles, Apparel and Other Items , WT/DS56/AB/R and Corr.1, adopted 22 April 
1998, DSR 1998:III, 1003 
Argentina – Textiles and 
Apparel  Panel Report, Argentina – Measures Affecting Imports of Footwear, Textiles, 
Apparel and Other Items , WT/DS56/R, adopted 22 April 1998, as modified by 
Appellate Body Report WT/DS56/AB/R, DSR 1998:III, 1033 
Brazil – Desiccated Coconut  Appellate Body Report, Brazil – Measures Affe cting Desiccated Coconut , 
WT/DS22/AB/R, adopted 20 March 1997, DSR 1997:I, 167 
Canada – Dairy  Appellate Body Report, Canada – Measures Affecting the Importation of Milk 
and the Exportation of Dairy Products , WT/DS103/AB/R, WT/DS113/AB/R and 
Corr.1, adopted 27 October 1999, DSR 1999:V, 2057 
Canada – Dairy  Panel Report, Canada – Measures Affecting the Importation of Milk and the 
Exportation of Dairy Products , WT/DS103/R, WT/DS113/R, adopted 27 October 
1999, as modified by Appellate Body Report WT/DS103/AB/R, 
WT/DS113/AB/R, DSR 1999:VI, 2097 
Canada – Dairy  
(Article 21.5 – New Zealand 
and US)  Appellate Body Report, Canada – Measures Affecting the Importation of Milk 
and the Exportation of Dairy Products – Recourse to Article 21.5 of the DSU by 
New Zealand and the United States , WT/DS103/AB/RW, WT/DS113/AB/RW, 
adopted 18 December 2001, DSR 2001:XIII, 6829 
Canada – Dairy  
(Article 21.5 – New Zealand 
and US)  Panel Report, Canada – Measures Affecting the Importation of Milk and the 
Exportation of Dairy Products – Recourse  to Article 21.5 of the DSU by New 
Zealand and the United States , WT/DS103/RW, WT/DS113/RW, adopted 
18 December 2001, reversed by Appellate Body Report WT/DS103/AB/RW, 
WT/DS113/AB/RW, DSR 2001:XIII, 6865 
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, 3045 (Corr.1, DSR 2006:XII, 5473) 
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 
China – Auto Parts Panel Reports, China – Measures Affecting Imports of Automobile Parts , 
WT/DS339/R, WT/DS340/R, WT/DS342/R and Add.1 and Add.2, adopted 
12 January 2009, as 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 
China – Publications and 
Audiovisual Products Appellate Body Report, China –  Measures Affecting Trading Rights and 
Distribution Services for Certain Publications and Audiovisual Entertainment 
Products , WT/DS363/AB/R, adopted 19 January 2010 WT/DS375/R 
WT/DS376/R WT/DS377/R 
Page xx 
  
  Short Title Full Case Title and Citation 
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 
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, 7425 
EC – Approval and Marketing of Biotech Products Panel Report, European Communities – Measures Affecting the Approval and 
Marketing of Biotech Products , WT/DS291/R, WT/DS292/R, WT/DS293/R, 
Add.1 to Add.9, and Corr.1, adopted 21 November 2006, DSR 2006:III-VIII, 
847 
EC – Bananas III  Appellate Body Report, European Communities – Regime for the Importation, 
Sale and Distribution of Bananas , WT/DS27/AB/R, adopted 25 September 1997, 
DSR 1997:II, 591 
EC – Bananas III (US)  Panel Report, European Communities – Regime for the Importation, Sale and 
Distribution of Bananas, Complaint by the United States , WT/DS27/R/USA, 
adopted 25 September 1997, as modified by Appellate Body Report 
WT/DS27/AB/R, DSR 1997:II, 943 
EC – Bananas III 
(Article 21.5 – Ecuador II) Appellate Body Reports, European Communities – Regime for the Importation, 
Sale and Distribution of Bananas – Second Recourse to Article 21.5 of the DSU by Ecuador , WT/DS27/AB/RW2/ECU, adopted 11  December 2008,  and Corr.1 
EC – Bed Linen Appellate Body Report, European Communities – Anti-Dumping Duties on 
Imports of Cotton-Type Bed Linen from India , WT/DS141/AB/R, adopted 
12 March 2001, DSR 2001:V, 2049 
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:XIX, 9157 
EC – Chicken Cuts (Brazil) Panel Report, European  Communities – Customs Classification of Frozen 
Boneless Chicken Cuts, Complaint by Brazil , WT/DS269/R, adopted 
27 September 2005, as modified by Appellate Body Report WT/DS269/AB/R, 
WT/DS286/AB/R, DSR 2005:XIX, 9295 
EC – Chicken Cuts (Thailand) Panel Report, European  Communities – Customs Classification of Frozen 
Boneless Chicken Cuts, Complaint by Thailand , WT/DS286/R, adopted 
27 September 2005, as modified by Appellate Body Report WT/DS269/AB/R, 
WT/DS286/AB/R, DSR 2005:XX, 9721 
EC – Computer Equipment  Appellate Body Report, European Communities – Customs Classification of 
Certain Computer Equipment , WT/DS62/AB/R, WT/DS67/AB/R, 
WT/DS68/AB/R, adopted 22 June 1998, DSR 1998:V, 1851 
EC – Computer Equipment Panel Report, European Communities – Customs Classification of Certain 
Computer Equipment , WT/DS62/R, WT/DS67/R, WT/DS68/R, adopted 22 
June 1998, as modified by Appellate Body Report WT/DS62/AB/R, 
WT/DS67/AB/R, WT/DS68/AB/R, DSR 1998:V, 1891 
EC – Export Subsidies on 
Sugar Appellate Body Report, European Communities – Export Subsidies on Sugar , 
WT/DS265/AB/R, WT/DS266/AB/R, WT/DS283/AB/R, adopted 19 May 2005, 
DSR 2005:XIII, 6365  WT/DS375/R 
 WT/DS376/R 
 WT/DS377/R 
 Page xxi 
  
  Short Title Full Case Title and Citation 
EC – Export Subsidies on 
Sugar (Australia) Panel Report, European Communities – Export Subsidies on Sugar, Complaint by 
Australia , WT/DS265/R, adopted 19 May 2005, as modified by Appellate Body 
Report WT/DS265/AB/R, WT/DS266/AB/R, WT/DS283/AB/R, DSR 2005:XIII, 
6499 
EC – Hormones  Appellate Body Report, EC Measures Concerning Meat and Meat Products 
(Hormones) , WT/DS26/AB/R, WT/DS48/AB/R, adopted 13 February 1998, 
DSR 1998:I, 135 
EC – Poultry Appellate Body Report, European Communities – Measures Affecting the 
Importation of Certain Poultry Products , WT/DS69/AB/R, adopted 23 July 
1998, DSR 1998:V, 2031 
EC – Selected Customs Matters Appellate Body Report, European Communities – Selected Customs Matters , 
WT/DS315/AB/R, adopted 11 December 2006, DSR 2006:IX, 3791 
EC – Selected Customs Matters Panel Report, European Communities – Selected Customs Matters , WT/DS315/R, 
adopted 11 December 2006, as modified by Appellate Body Report 
WT/DS315/AB/R, DSR 2006:IX-X, 3915 
EC – Trademarks and 
Geographical Indications (Australia) Panel Report,  European Communities – Protection of Trademarks and 
Geographical Indications for Agricultural Products and Foodstuffs, Complaint by Australia , WT/DS290/R, adopted 20 April 2005, DSR 2005:X, 4603 
EC – Trademarks and 
Geographical Indications 
(US) Panel Report,  European Communities – Protection of Trademarks and 
Geographical Indications for Agricultural Products and Foodstuffs, Complaint 
by the United States , WT/DS174/R, adopted 20 April 2005, DSR 2005:VIII, 
3499 
Egypt – Steel Rebar  Panel Report, Egypt – Definitive Anti-Dumping Measures on Steel Rebar from 
Turkey , WT/DS211/R, adopted 1 October 2002, DSR 2002:VII, 2667 
Guatemala – Cement I Appellate Body Report, Guatemala – Anti-Dumping Investigation Regarding 
Portland Cement from Mexico , WT/DS60/AB/R, adopted 25 November 1998, 
DSR 1998:IX, 3767 
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 
India – Additional Import 
Duties Panel Report, India – Additional and Extra-Add itional Duties on Imports from 
the United States , WT/DS360/R, adopted 17 November 2008, reversed by 
Appellate Body Report WT/DS360/AB/R 
India – Patents (US)  Appellate Body Report, India – Patent Protection for Pharmaceutical and 
Agricultural Chemical Products , WT/DS50/AB/R, adopted 16 January 1998, 
DSR 1998:I, 9 
India – Patents (US)  Panel Report, India – Patent Protection for Pharmaceutical and Agricultural 
Chemical Products, Complaint by the United States , WT/DS50/R, adopted 
16 January 1998, as modified by Appellate Body Report WT/DS50/AB/R, DSR 1998:I, 41 
Japan – Alcoholic Beverages II Appellate Body Report, Japan – Taxes on Alcoholic Beverages , WT/DS8/AB/R, 
WT/DS10/AB/R, WT/DS11/AB/R, adopted 1 November 1996, DSR 1996:I, 97 
Japan – Alcoholic Beverages II  Panel Report, Japan – Taxes on Alcoholic Beverages , WT/DS8/R, WT/DS10/R, 
WT/DS11/R, adopted 1 November 1996, as modified by Appellate Body Report WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R, DSR 1996:I, 125 WT/DS375/R 
WT/DS376/R WT/DS377/R 
Page xxii 
  
  Short Title Full Case Title and Citation 
Japan – Apples Appellate Body Report, Japan – Measures Affecting the Importation of Apples , 
WT/DS245/AB/R, adop ted 10 December 2003, DSR 2003:IX, 4391 
Japan – Film Panel Report, Japan – Measures Affecting Consumer Photographic Film and 
Paper , WT/DS44/R, adopted 22 April 1998, DSR 1998:IV, 1179 
Korea – Various Measures on 
Beef  Appellate Body Report, Korea – Measures Affecting Imports of Fresh, Chilled 
and Frozen Beef , WT/DS161/AB/R, WT/DS169/AB/R, adopted 10 January 2001, 
DSR 2001:I, 5 
Korea – Various Measures on 
Beef  Panel Report, Korea – Measures Affecting Imports of Fresh, Chilled and Frozen 
Beef, WT/DS161/R, WT/DS169/R, adopted 10 January 2001, as modified by 
Appellate Body Report WT/DS161/AB/R, WT/DS169/AB/R, DSR 2001:I, 59 
Korea – Dairy  Appellate Body Report, Korea – Definitive Safeguard Measure on Imports  
of Certain Dairy Products , WT/DS98/AB/R, adopted 12 January 2000, 
DSR 2000:I, 3 
Korea – Dairy  Panel Report, Korea – Definitive Safeguard Measure on Imports of Certain Dairy 
Products , WT/DS98/R and Corr.1, adopted 12 January 2000, as modified by 
Appellate Body Report WT/DS98/AB/R, DSR 2000:I, 49 
Mexico – Anti-Dumping 
Measures on Rice Panel Report, Mexico – Definitive Anti-Dumping Me asures on Beef and Rice, 
Complaint with Respect to Rice , WT/DS295/R, adopted 20 December 2005, as 
modified by Appellate Body Report WT/DS295/AB/R, DSR 2005:XXIII, 
11007 
Mexico – Corn Syrup 
(Article 21.5 – US) Appellate Body Report, Mexico – Anti-Dumping Investigation of High Fructose 
Corn Syrup (HFCS) from the United States – Recourse to Article 21.5 of the DSU  by the United States , WT/DS132/AB/RW, adopted 21 November 2001, 
DSR 2001:XIII, 6675 
Mexico – Telecoms Panel Report, Mexico – Measures Affecting Telecommunications Services , 
WT/DS204/R, adopted 1 June 2004, DSR 2004:IV, 1537 
Thailand – H-Beams  Appellate Body Report, Thailand – Anti-Dumping Duties on Angles, Shapes and 
Sections of Iron or Non-Alloy Steel and H-Beams from Poland , 
WT/DS122/AB/R, adopted 5 April 2001, DSR 2001:VII, 2701 
Thailand – H-Beams  Panel Report, Thailand – Anti-Dumping Duties on Angles, Shapes and Sections 
 of Iron or Non-Alloy Steel and H-Beams from Poland , WT/DS122/R, adopted 
5 April 2001, as modified by Appellate Body Report WT/DS122/AB/R, 
DSR 2001:VII, 2741 
Turkey – Rice Panel Report, Turkey – Measures Affecting the Importation of Rice , 
WT/DS334/R, adopted 22 October 2007, DSR 2007:VI, 2151 
US – Anti-Dumping Measures 
on Oil Country Tubular 
Goods Appellate Body Report, United States – Anti-Dumping Measures on Oil Country 
Tubular Goods (OCTG) from Mexico , WT/DS282/AB/R, adopted 28 November 
2005, DSR 2005:XX, 10127 
US – Carbon Steel Appellate Body Report, United States – Countervailing Duties on Certain 
Corrosion-Resistant Carbon Steel Flat Products from Germany , 
WT/DS213/AB/R and Corr.1, adopted 19 December 2002, DSR 2002:IX, 3779 
US – Carbon Steel  Panel Report, United States – Countervailing Duties on Certain Corrosion-
Resistant Carbon Steel Flat Products from Germany , WT/DS213/R and Corr.1, 
adopted 19 December 2002, as modified by Appellate Body Report 
WT/DS213/AB/R, DSR 2002:IX, 3833  WT/DS375/R 
 WT/DS376/R 
 WT/DS377/R 
 Page xxiii 
  
  Short Title Full Case Title and Citation 
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, 373 
US – Continued Zeroing Appellate Body Report, United States – Continued Existence and Application  
of Zeroing Methodology , WT/DS350/AB/R, adopted 19 February 2009 
US – Continued Zeroing Panel Report, United States – Continued Existence and Application of Zeroing 
Methodology , WT/DS350/R, adopted 19 February 2009, as modified as 
Appellate Body Report WT/DS350/AB/R 
US – Corrosion-Resistant Steel Sunset Review Appellate Body Report, United States – Sunset Review of Anti-Dumping Duties 
on Corrosion-Resistant Carbon Steel Flat Products from Japan , 
WT/DS244/AB/R, adopted 9 January 2004, DSR 2004:I, 3 
US – FSC  Appellate Body Report, United States – Tax Treatment for "Foreign Sales 
Corporations" , WT/DS108/AB/R, adopted 20 March 2000, DSR 2000:III, 1619 
US – FSC  Panel Report, United States – Tax Treatment for "Foreign Sales Corporations" , 
WT/DS108/R, adopted 20 March 2000, as modified by Appellate Body Report 
WT/DS108/AB/R, DSR 2000:IV, 1675 
US – Gambling Appellate Body Report, United States – Measures Affecting the Cross-Border 
Supply of Gambling and Betting Services , WT/DS285/AB/R, adopted 20 April 
2005, DSR 2005:XII, 5663 (Corr.1, DSR 2006:XII, 5475) 
US – Gambling Panel Report, United States – Measures Affecting the Cross-Border Supply of 
Gambling and Betting Services , WT/DS285/R, adopted 20 April 2005, as 
modified by Appellate Body Report WT/DS285/AB/R, DSR 2005:XII, 5797 
US – Gasoline Appellate Body Report, United States – Standards for Reformulated and 
Conventional Gasoline , WT/DS2/AB/R, adopted 20 May 1996, DSR 1996:I, 3 
US – Lead and Bismuth II Panel Report, United States – Imposition of Countervailing Duties on Certain 
Hot-Rolled Lead and Bismuth Carbon Steel Products Originating in the United Kingdom , WT/DS138/R and Corr.2, adopted 7 June 2000, as upheld by Appellate 
Body Report WT/DS138/AB/R, DSR 2000:VI, 2623 
US – Offset Act 
(Byrd Amendment) Appellate Body Report, United States – Continued Dumping and Subsidy Offset 
Act of 2000 , WT/DS217/AB/R, WT/DS234/AB/R, adopted 27 January 2003, 
DSR 2003:I, 375 
US – Oil Country Tubular 
Goods Sunset Reviews Appellate Body Report, United States – Sunset Reviews of Anti-Dumping 
Measures on Oil Country Tubular Goods from Argentina , WT/DS268/AB/R, 
adopted 17 December 2004, DSR 2004:VII, 3257 
US – Oil Country Tubular Goods Sunset Reviews Panel Report, United States – Sunset Reviews of Anti-Dumping Measures on Oil 
Country Tubular Goods from Argentina , WT/DS268/R and Corr.1, adopted 
17 December 2004, as modified by Appellate Body Report W/DS/268/AB/R, 
DSR 2004:VIII, 3421 
US – Shrimp  Appellate Body Report, United States – Import Prohibition of Certain Shrimp and 
Shrimp Products , WT/DS58/AB/R, adopted 6 November 1998, DSR 1998:VII, 
2755 
US – Shrimp  Panel Report, United States – Import Prohibition of Certain Shrimp and Shrimp 
Products , WT/DS58/R and Corr.1, adopted 6 November 1998, as modified by 
Appellate Body Report WT/DS58/AB/R, DSR 1998:VII, 2821 WT/DS375/R 
WT/DS376/R WT/DS377/R 
Page xxiv 
  
  Short Title Full Case Title and Citation 
US – Softwood Lumber IV Appellate Body Report, United States – Final Countervailing Duty 
Determination with Respect to Certain Softwood Lumber from Canada , 
WT/DS257/AB/R, adopted 17 February 2004, DSR 2004:II, 571 
US – Underwear Appellate Body Report, United States – Restrictions on Imports of Cotton and 
Man-made Fibre Underwear , WT/DS24/AB/R, adopted 25 February 1997, 
DSR 1997:I, 11 
US – Underwear Panel Report, United States – Restrictions on Imports of Cotton and Man-made 
Fibre Underwear , WT/DS24/R, adopted 25 February 1997, as modified by 
Appellate Body Report WT/DS24/AB/R, DSR 1997:I, 31 
US – Upland Cotton Appellate Body Report, United States – Subsidies on Upland Cotton , 
WT/DS267/AB/R, adopted 21 March 2005, DSR 2005:I, 3 
US – Upland Cotton Panel Report, United States – Subsidies on Upland Cotton , WT/DS267/R, 
Corr.1, and Add.1 to Add.3, adopted 21 March 2005, as modified by Appellate Body Report WT/DS267/AB/R, DSR 2005:II, 299 
US – Wheat Gluten Appellate Body Report, United States – Definitive Safeguard Measures on 
Imports of Wheat Gluten from the European Communities , WT/DS166/AB/R, 
adopted 19 January 2001, DSR 2001:II, 717 
US – Wool Shirts and Blouses  Appellate Body Report, United States – Measure Affecting Imports of Woven 
Wool Shirts and Blouses from India , WT/DS33/AB/R, adopted 23 May 1997, and 
Corr.1, DSR 1997:I, 323  
US – Wool Shirts and Blouses  Panel Report, United States – Measure Affecting Imports of Woven Wool Shirts 
and Blouses from India , WT/DS33/R, adopted 23 May 1997, upheld by Appellate 
Body Report WT/DS33/AB/R, DSR 1997:I, 343 
US – Zeroing (EC) Appellate Body Report, United States – Laws, Regulations and Methodology for 
Calculating Dumping Margins ("Zeroing") , WT/DS294/AB/R, adopted 9 May 
2006, and Corr.1, DSR 2006:II, 417 
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 
 
TABLE OF GATT CASES CITED IN THESE REPORTS 
 
Short Title Full Case Title and Citation 
Canada – FIRA  GATT Panel Report, Canada – Administration of the Foreign Investment 
Review Act , L/5504, adopted 7 February 1984, BISD 30S/140 
EEC – Apples (US)  GATT Panel Report, European Economic Community – Restrictions on Imports 
of Apples – Complaint by the United States , L/6513, adopted 22 June 1989, 
BISD 36S/135 
EEC – Newsprint GATT Panel Report, Panel on Newsprint , L/5680, adopted 20 November 1984, 
BISD 31S/114 
Greece – Phonograph 
Records Group of Experts Report, Greek Increase in Bound Duty , 9 November 1956, 
unadopted, L/580 
  WT/DS375/R 
 WT/DS376/R 
 WT/DS377/R 
 Page xxv 
  
  TABLE OF ABBREVIATIONS USED IN THESE REPORTS 
 
Short title Full title 
Commission Regulation No. 517/1999  Commission Regulation (EC) No. 517/1999 of 
9 March 1999, concerning the classification of certain 
goods in the Combined Nomenclature, OJ L 61/23, 
10 March 1999. 
Commission Regulation No. 400/2006  Commission Regulation (EC) No. 400/2006 of 
8 March 2006, concerning the classification of certain 
goods in the Combined Nomenclature, OJ L 70/9, 9 March 2006. 
ADP machines Automatic data-processing machines 
BTI Binding Tariff Information 
BTI Guidelines BTI Guidelines, Administrative Guidelines on the 
European Binding Tariff Information (EBTI) System and Its Operation, 28 October 2004. 
CCT  Community Customs Tariff 
CN  Council Regulation (EEC) No. 2658/87 of 23 July 1987 
on the tariff and statistical nomenclature and on the 
Common Customs Tariff, OJ L 256/1, 
7 September 1987, as amended. 
CN1997 Commission Regulation (EEC) No. 1734/96 of 
9 September 1996, amending Annex I to Council 
Regulation (EEC) No. 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, OJ L 238/1, 19 September 1996, as amended. 
CN2006 Commission Regulation (EC) No. 1719/2005 of 
27 October 2005 amending Annex I to Council 
Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs 
Tariff,  OJ L 286/1, 28 October 2005 , as amended. 
CN2007 Commission Regulation (EC) No. 1549/2006 of 
17 October 2006 of amending Annex I to Council 
Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs 
Tariff, OJ L 301/1, 31 October 2006, as amended. 
CN2008 Commission Regulation (EC) No. 1214/2007 of 
20 September 2007 amending Annex I to Council 
Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs 
Tariff,  OJ L 286/1, 31 October 2007, as amended. WT/DS375/R 
WT/DS376/R WT/DS377/R 
Page xxvi 
  
  CN2009 Commission Regulation (EC) No. 1031/2008 of 
19 September 2008, amending Annex I to Council 
Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff, OJ L 291/1, 31 October 2008, as amended. 
CN2010 Commission Regulation (EC) No. 948/2009 of 
30 September 2009, amending Annex I to Council 
Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs 
Tariff,   OJ L 287, 31 October 2009, as amended. 
CNEN  Explanatory Notes to the CN. 
CNEN 2008/C 112/03 Explanatory Notes to the Combined Nomenclature of the 
European Communities, 2008/C 112/03, OJ C 112/8, 
7 May 2008.  
CNEN 2008/C 133/01  Explanatory Notes to the Combined Nomenclature of the 
European Communities: Publication Made in accordance 
with Article 9(1) of Council Regulation (EEC) 
No. 2658/87 of 23 July 1987 on the Tariff and Statistical Nomenclature and on the Common Customs Tariff, 
OJ C 133/1, 30 May 2008. 
CNEN 2006/C 332/05  Uniform Application of the CN (Classification of 
goods), OJ C 332/05, 30 December 2006. 
Comitology Decision Council Decision 1999/468/EC of 28 June 1999, 
establishing the procedures for the exercise of 
implementing powers conferred on the Commission, OJ L 184/23, 17 July 1999, as amended by Decision 2006/512/EC, OJ L 200/11, 22 July 2006. 
Commission  European Commission 
Commission Regulation No. 1165/95 Commission Regulation (EC) No. 1165/95 of 
23 May 1995 concerning the classification of certain 
goods in the combined nomenclature, OJ L 117/15, 24 May 1995. 
Commission Regulation No. 2171/2005  Commission Regulation (EC) No. 2171/2005 of 
23 December 2005 concerning the classification of 
certain goods in the Combined Nomenclature, 
OJ L 346/7, 29 December 2005. 
Commission Regulation No. 2184/97 Commission Regulation (EC) No. 2184/97 of 
3 November 1997, concerning the classification of 
certain goods in the Combined Nomenclature, OJ L 
299/6, 4 November 1997. 
Commission Regulation No. 634/2005  Commission Regulation (EC) No. 634/2005 of 
26 April 2005 concerning the classification of certain goods in the Combined Nomenclature, OJ L 106/7, 
27 April 2005.  WT/DS375/R 
 WT/DS376/R 
 WT/DS377/R 
 Page xxvii 
  
  Community Customs Code or CCC Counc il Regulation (EEC) No. 2913/92 of 
12 October 1992 establishing the Community Customs 
Code, OJ L 302/1, 19 October 1992, as amended. 
Council Regulation No. 179/2009 
 Council Regulation (EC) No. 179/2009 of 5 March 2009 
amending Annex I to Regulation (EEC) No 2658/87 on 
the tariff and statistical nomenclature and on the 
Common Customs tariff, OJ L 63/1, 7 March 2009. 
Council Regulation No. 2658/87 or 
CN Council Regulation (EEC) No. 2658/87 of 23 July 1987 
on the tariff and statistical nomenclature and on the 
Common Customs Tariff, OJ L 256/1, 7 September 1987, as amended. 
Council Regulation No. 301/2007   Council Regulation (EC) No. 301/2007 of 19 
March 2007 amending Annex I to Regulation (EEC) No. 
2658/87 on the tariff and statistical nomenclature and on the Common Customs tariff, OJ L 81/11, 22 March 2007. 
Council Regulation No. 493/2005  Counc il Regulation (EC) No. 493/2005 of 
16 March 2005, amending A nnex I to Regulation (EEC) 
No. 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff, OJ L 82/1, 
31 March 2005.  
2005 Statement  Customs Code Committee – Tariff and Statistical 
Nomenclature Section, Report of the Conclusions of the 
360th meeting of the Committee (26-28 January 2005), 
Annex VII, 3 March 2005.  
Customs Code Committee (407th 
meeting) Customs Code Committee – Tariff and Statistical 
Nomenclatures Section (Mechanical/Miscellaneous 
Sector), Conclusions of the 407th Meeting of the 
Committee (18-20 October 2006), Draft CNEN on 
"Satellite receivers with built-in modem", Annex VI, 
8 January 2007.   
Customs Code Committee (413th 
meeting)   Customs Code Committee – Tariff and Statistical 
Nomenclature Section (Mechanical/Miscellaneous 
Sector), Conclusions of the 413th meeting of the 
Committee  (10-12 January 2007), point 5, 7 March 2007. 
Customs Code Committee (420th 
meeting) Customs Code Committee – Tariff and Statistical 
Nomenclature Section (Mechanical/Miscellaneous 
Sector), Conclusions of the 420th Meeting of the 
Committee (18-20 April 2007), Draft CNEN on "Set-top 
boxes incorporating a hard disk", point 3.3. and Annex IV, 31 May 2007.   
Customs Code Committee (432nd 
meeting)  Customs Code Committee – Tariff and Statistical 
Nomenclature Section Mechanical/Miscellaneous 
Sector), Conclusions of the 432nd meeting of the 
Committee (19 October 2007), point 6, 
15 November 2007. WT/DS375/R 
WT/DS376/R WT/DS377/R 
Page xxviii 
  
  Customs Code Committee (433
rd 
meeting)   Customs Code Committee – Tariff and Statistical 
Nomenclature Section (Heads of Tariff), Summary 
Report of the 433rd meeting of the Committee  
(22 October 2007), point 5, 23 November 2007. 
EC member States member States of the European Communities 
European Court of Justice (Clees) European  Court of Justice 3 December 1998 (Clees v 
Hauptzollamt Wuppertal, C-259/97), [1998] ECR 
I-08127. 
European Court of Justice (Develop Dr. Eisbein) European Court of Justic e 16 June 1994 (Develop Dr. 
Eisbein, C-35/93) [1994] ECR I-2655. 
European Court of Justice (DFDS BV) Europ ean Court of Justice 16 September 2004 (DFDS 
BV v. Inspecteur der Belastingdienst, C-396/02), [2004] 
ECR I-8439.  
European Court of Justice (Dittmeyer) European  Court of Justice 15 February 1977 (Dittmeyer, 
C-69/76 and 70/76), [1977] ECR 231. 
European Court of Justice (Gebr. 
Vismans Nederland BV) European Court of Justice 18 September 1990 (Gebr. 
Vismans Nederland BV v Inspecteur der Invoerrechten 
en Accijnzen, C-265/89), [1990] ECR I-3411. 
European Court of Justice (GoldStar 
Europe) European Court of Justice 13 December 1994 (GoldStar 
Europe GmbH v Hauptzollamt Ludwigshafen, C-
401/93), [1994] ECR I-5587. 
European Court of Justice (Hewlett 
Packard) European Court of Justice 17 May 2001 (Hewlett 
Packard BV v Directeur général des douanes et droits 
indirects, C-119/99), [2001] ECR I-03981. 
European Court of Justice (Kamino) European Court of Justice 19 February 2009 
(Staatssecretaris van Financiën v Kamino International Logistics BV , C-376/07).  
European Court of Justice (Rank 
Xerox) European Court of Justice 9 October 1997 (Rank Xerox 
Manufacturing Nederland BV , C-67/95), [1997] ECR I-
5401. 
European Court of Justice (Sunshine Deutschland Handelsgesellschaft) European Court of Justice 19 April 2007 (Sunshine 
Deutschland Handelsgesellschaft, C-229/06), [2007] ECR I-3251. 
European Court of Justice (Kip and Hewlett Packard) European Court of Justice 11 December 2008 (Kip 
Europe and Others; and Hewlett Packard, C-363/07 v. 
Administration des douanes - Direction générale des 
douanes et droits indirects, C-362/07 and 363/07).  
ECR European Court Reports 
FPDs Flat Panel Displays 
GIRs General Rules for the Interp retation of the HS or General 
Rules for the Interpretation of the CN 
HS Harmonized Commodity Description and Coding 
System  WT/DS375/R 
 WT/DS376/R 
 WT/DS377/R 
 Page xxix 
  
  HS Convention International Convention on the Harmonized 
Commodity Description and Coding System 
HSEN Explanatory Notes to the HS 
ITA Ministerial Declaration on Trade in Information 
Technology Products, 13 December 1996 
(WT/MIN(96)/16) 
MFMs Multifunctional digital machines 
McGraw-Hill Dictionary McGraw-Hill Dictionary of Scientific and Technical 
Terms, 1994 (fifth edition). 
Rules of Procedure of the Customs Code Committee Rules of procedure of the Customs Code Committee 
adopted by the Section for General Customs Rules of the 
Customs Code Committee on 5 December 2001 
(TAXUD/741/2001). 
STB set top box 
STBCs set top boxes which have a communication function 
The Shorter Oxford  Dictionary (1993)  New Shorter Oxford English Dictionary, 1993 (4th 
edition), Volumes I and II. 
The Shorter Oxford  Dictionary  (2002)  New Shorter Oxford English Dictionary, fifth edition, 
2002, Volume I (A-M). 
The Shorter Oxford Dictionary  (2003)  New Shorter Oxford English Dictionary, fifth edition,  
2003, Volume II (N-Z).  
Vienna Convention  Vienna Convention on the Law of Treaties 1969, done at 
Vienna on 23 May 1969. Entered into force on 
27 January 1980, United Nations, Treaty Series, vol. 
1155, p. 331. 
 
 
   WT/DS375/R 
 WT/DS376/R 
 WT/DS377/R 
 Page 1 
  
  I. INTRODUCTION 
A. C
OMPLAINTS OF THE UNITED STATES , JAPAN AND CHINESE TAIPEI  
1.1 On 28 May 2008, the United States and Japan, and on 12 June 2008, the Separate Customs 
Territory of Taiwan, Penghu, Kinmen and Matsu ("Chinese Taipei"), independently requested 
consultations with the European Communities1 and its member States  ("European Communities")2 
pursuant to Article 4 of the DSU and Article XX II:1 of the GATT 1994 regarding the tariff treatment 
that the European Commun ities accords to certain information technology products.3  
1.2 The United States, Japan and Chinese Taipei requ ested, pursuant to paragraph 11 of Article 4 
of the DSU, to join in each other's consultations.4  China, the Philippines, Singapore and Thailand 
requested to join in the consultations requested  by the United States and Japan, and China also 
requested to join in the consulta tions requested by Chinese Taipei.5  The European Communities did 
not accept these requests, with the exception of the re quest of China to join  in the consultations 
requested by Chinese Taipei.6 
1.3 Separate consultations were held in Gene va between each complaining party and the 
European Communities.  The Eur opean Communities and the United St ates held their consultations 
on 25 and 26 June 2008 and 14 and 15 July 2008.  The European Communities and Japan held their consultations on 26 June 2008 and 16 and 17 July 2008.  The European Communities and Chinese 
Taipei held their consultations on 3, 18 and 25 Ju ly 2008.  None of these consultations led to a 
mutually satisfactory resolution of the dispute.   
1.4 On 18 August 2008, the United States, Japan and Chinese Taipei, jointly and severally, 
requested the establishment of a panel pursuant to Article 6 of the DSU, with standard terms of 
reference.
7  At its meeting on 29 August 2008, the Dis pute Settlement Body ("DSB") deferred the 
establishment of a panel following opposition by the European Communities.8 
B. ESTABLISHMENT AND COMPOSITION OF THE PANEL  
1.5 At its meeting on 23 September 2008, the DSB esta blished a single Panel pursuant to the joint 
panel request of the United States, Japan and Ch inese Taipei in document WT/DS375/8, WT/DS376/8 
and WT/DS377/6 in accordance with Article 6 of the DSU.9 
                                                      
1 On 1 December 2009, the Treaty of Lisbon  amending the Treaty on European Union  and the Treaty 
establishing the European Community  (done at Lisbon, 13 December 2007) entered into force. On 
29 November 2009, the WTO received a Verbal Note  (WT/L/779) from the Council of the European Union  and 
the Commission of the European Communities  stating that, by virtue of the Treaty of Lisbon , as of 
1 December 2009, the European Union  replaces and succeeds the European Community . 
2 The use of the term "European Communities" is without prejudice to the European Communities' 
position that its member States are not responding partie s in this dispute (see below paragraph 1.10).  This 
matter is addressed below, as appropriate, in the Findings Section of these Reports. 
3 WT/DS375/1, WT/DS376/1 and WT/DS377/1, respectively. 
4 See WT/DS375/3 and 6;  WT/DS376/3 and 6;  and WT/DS377/2 and 4. 
5 See WT/DS375/2, 4, 5 and 7;  WT/DS376/2, 4, 5 and 7;  and WT/DS377/3. 
6 See WT/DS377/5. 
7 The joint panel request was circulated on 19 August 2008 as a single document (WT/DS375/8, 
WT/DS376/8 and WT/DS377/6).  The joint panel reques t is reproduced in Annex [G-1] to these Reports. 
8 WT/DSB/M/255, para. 69. 
9 WT/DSB/M/256, para. 52. WT/DS375/R 
WT/DS376/R WT/DS377/R 
Page 2 
  
  1.6 At that meeting, the parties to the dispute agre ed that the Panel should have standard terms of 
reference.  The Panel's terms of reference are, therefore, as follows: 
"To examine, in the light of the relevant provisions in the covered agreements cited 
by the parties to the dispute, the matter  referred to the DSB by the United States, 
Japan and the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu in 
document WT/DS375/8, WT/DS376/8 and WT/D S377/6, and to make such findings 
as will assist the DSB in making the recommendations or in giving the rulings provided for in those agreements." 
1.7 On 12 January 2009, the United States, Japan and Chinese Taipei requested the Director-
General to determine the composition of the Panel, purs uant to paragraph 7 of Article 8 of the DSU.   
1.8 On 22 January 2009, the Director-General accordingly composed the Panel as follows:
10 
 Chairman: Mr Wilhelm Meier 
 
 Members: Mr David Evans 
   Ms Valerie Hughes  1.9 Australia;  Brazil;  China;  Costa Rica;  Hong K ong, China;  India;  Japan (in respect of the 
United States' and Chinese Taipei's complaints);  Kor ea;  the Philippines;  Singapore;  Chinese Taipei 
(in respect of the United States' and Japan's compla ints);  Thailand;  Turkey;  the United States (in 
respect of Japan's and Chinese Taipei's complaints);  and Viet Nam reserved their rights to participate 
in the Panel proceedings as third parties.
11 
C. PANEL PROCEEDINGS  
1.10 On 4 February 2009, the parties and the Panel held their organizational meeting. In that 
meeting, as well as in oral and written communicati ons thereafter, the European Communities raised 
concerns on the status of the complaining parties as th ird parties to this dispute and also objected to 
the inclusion of its member States as responding par ties of this dispute.  The Panel will address these 
matters below, as appropriate, in th e Findings Section of these Reports. 
1.11 The Panel held its first substantive meeting with the parties on 12 and 14 May 2009.  The 
session with the third parties took place on 13 May 2009.  The Panel held its second substantive 
meeting with the parties on 9 July 2009.  Upon reque st by the complaining parties, and in accordance 
with the procedures adopted by the Panel after co nsulting with the parties, both the first and the 
second meetings were opened to the public.12  A real time closed-circuit television broadcast of the 
Panel's open sessions was presented in a separate room  of the WTO building in Geneva to allow the 
public to observe the proceedings. 
1.12 On 25 August 2009, the Panel issued the draft descriptive part of its Panel Reports.  On 
8 September 2009, the Panel received comments from the parties on the draft descriptive part.  The 
                                                      
10 WT/DS375/9, WT/DS376/9 and WT/DS377/7 of 26 January 2009. 
11 On 23 January 2009 the United States, Japan and Chinese Taipei notified their interest to participate 
as third parties. 
12 "Procedures for open hearings, first and second substantive meetings of the Panel" of 29 April 2009, 
adopted under paragraph 2 of the "Working Procedures for the Panel" of 10 February 2009.  WT/DS375/R 
 WT/DS376/R 
 WT/DS377/R 
 Page 3 
  
  Panel issued its Interim Reports to the parties on 11 June 2010.  The Panel issued its Final Reports to 
the parties on 23 July 2010. 
II. FACTUAL ASPECTS 
A. M
EASURES AT ISSUE  
2.1 The complaining parties claim that the Europ ean Communities is required to accord duty-free 
tariff treatment to certain inform ation technology products. These products13 are described by the 
complaining parties as certain "flat panel disp lay devices" ("FPDs"), "set-top boxes which have a 
communication function" ("STBCs") and "m ultifunctional digital machines" ("MFMs")14.  The 
complaining parties claim that the European Commun ities is obliged to grant such duty-free treatment 
under the European Communities Schedule of Concessions to the GATT 1994 ("the EC Schedule") pursuant to modifications therein to reflect  the commitments it has made under the Ministerial 
Declaration on Trade in In formation Technology Products  ("Information Technology Agreement" or 
"ITA").
15 
2.2 The complaining parties have identified the follo wing as the measures at issue in this dispute: 
1. FPDs 
(a) Council Regulation (EC) No. 493/2005 of 16 March 2005; 
(b) Commission Regulation (EC) No. 634/2005 of 26 April 2005; 
(c) Commission Regulation (EC) No. 2171/2005 of 23 December 2005; 
(d) Council Regulation (EEC) No. 2658/87 of 23 July 1987 on the tariff and statistical 
nomenclature and on the Common Customs Tariff, including all annexes thereto, as 
amended; 
(e) Explanatory Notes to the Combined Nome nclature of the European Communities, 
2008/C 133/01 (May 30 2008), alone or in combination with Council Regulation 
(EEC) No. 2658/87 of 23 July 1987; and  
(f) Any amendments or extensions and an y related or implementing measures. 
                                                      
13 The reference to "flat panel display devices", "s et-top boxes which have a communication function" 
and "multifunctional digital machines", and their resp ective acronyms "FPDs", STBCs" and "MFMs", is for ease 
of reference only and will be used in these Reports without prejudice to the positions taken by the parties on the description and designation of the products at issue in this dispute. 
14 In footnote 15 of their joint panel request, the complaining parties explain that they use this term to 
refer to "machines which perform two or more of the func tions of printing, copying, or facsimile transmission, 
capable of connecting to an automatic data processing machine or to a network (including devices commercially 
known as MFPs (multifunctional printers), other 'input or output units' of 'automatic data processing machines', 
and facsimile machines)." 
15 Ministerial Declaration on Trade in Information Technology Products , 13 December 1996 
(WT/MIN(96)/16).  The full text of the ITA is also reproduced in Annex G to these Reports. WT/DS375/R 
WT/DS376/R WT/DS377/R 
Page 4 
  
  2. STBCs 
(a) Council Regulation (EEC) No. 2658/87 of 23 July 1987 on the tariff and statistical 
nomenclature and on the Common Customs Tariff, including all annexes thereto, as 
amended; 
(b) Explanatory Notes to the Combined Nome nclature of the European Communities, 
2008/C 112/03 (7 May 2008)
16, alone or in combination with Council Regulation 
(EEC) No. 2658/87 of 23 July 1987; and 
(c) Any amendments or extensions and an y related or implementing measures.  
3. MFMs 
(a) Commission Regulation (EC) No. 517/1999 of 9 March 1999; 
(b) Report of the Conclusions of the 360th meeting of the Customs Code Committee, 
Tariff and Statistical Nomenclature S ection, TAXUD/555/2005-EN (March 2005); 
(c) Commission Regulation (EC) No. 400/2006 of 8 March 2006;  
(d) Council Regulation (EEC) No. 2658/87 of 23 July 1987 on the tariff and statistical 
nomenclature and on the Common Customs Tariff, including all annexes thereto, as 
amended (including amendments adop ted pursuant to Commission Regulation 
No. 1214/2007 of 20 September 2007); and 
(e) Any amendments or extensions and an y related or implementing measures. 
B. REQUEST FOR INFORMATION FROM THE WORLD CUSTOMS ORGANIZATION  
2.3 On 8 September 2009, the Panel, pursuant to Article 13.1 of the DSU, sent a letter to the 
World Customs Organization ("WCO") Secretariat re questing its assistance in certain issues relating 
to the Harmonized System ("HS").  The WCO replied to the Panel's letter on 29 September 2009.  On 
14 October 2009, the parties submitted their comments on the WCO's reply. 
C. REQUEST FOR SEPARATE REPORTS  
2.4 At the organizational meeting of 4 February 2009, the European Communities requested the 
Panel to issue separate Panel Reports.  The complain ing parties did not object to such request at that 
meeting.  In their comments to the draft descrip tive part of these Reports, the complaining parties 
requested that, if the Reports are issued as a si ngle document, the conclusions and recommendations 
for each of the disputes be set out on separate pages,  with each page bearing only the Report symbol 
relating to that dispute. The Panel findings are th erefore issued in the form of a single document 
containing three separate Reports. The Panel's conclusions and recommendations for each of the 
                                                      
16 Reference has also been made to certain actions of the Customs Code Committee with respect to 
amendments to these Explanatory Notes (footnote 11 and page 5 of the joint panel request).  WT/DS375/R 
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  disputes will be set out on separate pages, with each page bearing only the Report symbol relating to 
that dispute.
17 
III. PARTIES' REQUESTS FOR FINDINGS AND RECOMMENDATIONS 
A. UNITED  STATES,  JAPAN  AND  CHINESE  TAIPEI 
3.1 In light of the measures cited above, the complaining parties request the Panel to find as 
follows: 
1. FPDs 
3.2 As a result of the measures cited above, the Un ited States, Japan and Chinese Taipei request 
the Panel to find that the European Communities ha s acted inconsistently with Articles II:1(a) and 
II:1(b) of the GATT 1994  by according certain FPDs treatment less favourable than that provided in 
the EC Schedule, and by imposing on these products ordinary customs duties, or other duties and charges, in excess of those set forth in the EC Schedule. 
2. STBCs 
3.3 As a result of the measures cited above, the Un ited States, Japan and Chinese Taipei request 
the Panel to find that the European Communities ha s acted inconsistently with Articles II:1(a) and 
II:1(b) of the GATT 1994  by according STBCs treatment less favourable than that provided in the EC 
Schedule, and by imposing on these products ordinary customs duties, or other duties and charges, in 
excess of those set forth in the EC Schedule. 
3.4 The United States and Chinese Taipei further re quest the Panel to find that the European 
Communities, with respect to STBCs, has acted in consistently with Articles X:1 and X:2 of the 
GATT 1994  by not promptly publishing the Explanatory Notes identified above in respect to these 
products and by applying duties to these products us ing the approach specified in these Explanatory 
Notes prior to the date of their publication. 
3. MFMs 
3.5 As a result of the measures cited above, the Un ited States, Japan and Chinese Taipei request 
the Panel to find that the European Communities ha s acted inconsistently with Articles II:1(a) and 
II:1(b) of the GATT 1994  by according certain MFMs treatment less favourable than that provided in 
the EC Schedule, and by imposing on these products ordinary customs duties, or other duties and 
charges, in excess of those set forth in the EC Schedule. 
B. EUROPEAN COMMUNITIES  
3.6 The European Communities requests that the Panel reject all the claims raised by the United 
States, Japan and Chinese Taipei. 
                                                      
17 The Panel will therefore follow the similar approach taken by the panel in US – Steel Safeguards  (see 
cover note to that Report and para. 10.725)  See also the Appellate Body Report on 
EC - Bananas (21.5 - Ecuador II) and China – Auto Parts . WT/DS375/R 
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  IV. ARGUMENTS OF THE PARTIES 
4.1 The arguments of the parties, as set fort h in their executive su mmaries of their written 
submissions and oral statements to the Panel, are attached to these Reports as Annexes A, B, C and D 
(see List of Annexes, pages ii and iii).  The replies of the parties to questions and the parties' 
comments on each other's replies to questions are not attached to these Reports as annexes.  They are, 
however, reflected in the findings sec tion of these Reports where relevant.
 18 
V. ARGUMENTS OF THE THIRD PARTIES 
5.1 The arguments of the third parties, as set fo rth in their executive summaries of their written 
submissions and oral statements to the Panel, are at tached to these Reports as Annexe E (see List of 
Annexes, page iii).19  The replies of the third parties to questions are not attached to these Reports as 
annexes.  They are however reflected in the findings section of these Reports where relevant.20 
VI. INTERIM REVIEW 
6.1 Pursuant to Article 15.3 of the DSU, the findi ngs of the final panel report must include a 
discussion of the arguments made by the parties at the interim review stage.  This Section of the Panel 
Report provides such a discussion.  As Article 15.3 ma kes clear, this Section forms part of the Panel's 
findings. 
A. BACKGROUND  
6.2 The United States, Japan, Chinese Taipei and the European Communities separately requested 
an interim review by the Panel of certain aspects of the Interim Report issued to the parties on 11 June 
2010.21  None of the parties requested an interim revi ew meeting.  However, the parties made use of 
the opportunity to submit further written comments on each others' requests.22  On 23 July 2010, the 
Panel issued its Final Report to the parties on a confidential basis.   
B. PARTIES ' REQUESTS FOR CHANGES TO THE INTERIM REPORTS  
6.3 Below, the Panel  will address the parties' requests for changes to the Interim Report.  Unless 
otherwise indicated, the references below are to paragraph or footnote numbers appearing in the 
Interim Report.   
1. General Comments 
(a) Comments by the Complainants 
6.4 Japan  requests the Panel to modify paragraph 7.91 to reflect its request that the Panel refrain 
from exercising judicial economy with respect  to its claims regarding Attachments A and B of the 
ITA, and not just those pertaining to Attachment A. 
                                                      
18 As established by paragraph 18 of the "Working Procedures for the Panel" of 10 February 2009. 
19 Australia; Brazil; Hong Kong, China; India; Japan; Chinese Taipei; Thailand; the United States; and 
Viet Nam did not make written submissions.  Brazil; Japan; Korea; Chinese Taipei; the United States; and Viet 
Nam did not make oral statements. 
20 As established by paragraph 18 of the "Working Procedures for the Panel" of 10 February 2009. 
21 Letters of the parties of 25 June 2010. 
22 Letters of the parties of 9 July 2010.  WT/DS375/R 
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  6.5 None of the parties have commented on Japan's request. 
6.6 The Panel  has modified paragraph 7.91 to reflect Japan's request to refrain from exercising 
judicial economy with respect to its claims concerning Attachments A and B of the ITA. 
6.7 The complainants  request the Panel to modify paragr aphs 7.94, 7.119, 7.291, 7.599, 7.603 
and other relevant paragraphs thro ughout the report to use the term "tariff item numbers" rather than 
"CN codes", where the terms are used to refer to eight-digit numbers appearing in the EC Schedule. 
6.8 The European Communities  has not commented on the complainants' request. 
6.9 The Panel  has replaced the term "CN code" with the term "tariff item number" where 
appropriate. 
6.10 The complainants  ask that the panel modify paragraphs  7.82 - 7.90 7.290, 7.817 and 8.2 to 
reflect that EC member States have acted inconsiste ntly with their obligations through the application 
of duties to products. They assert that the Panel has declined to consider certain applications by EC 
member States customs officials on grounds that the complainants limited thei r claims to "as such" 
challenges, and by asserting that reaching findings  with respect to member States would not be 
necessary to secure a positive resolutio n to the dispute in view of " certain assurances" made by the 
European Communities. Japan and the United St ates argue, however, that failing to consider 
applications by member States may fail to provide  a positive resolution to the dispute. This would 
result, they argue, if member States were to con tinue to impose duties on the products at issue. The 
United States and Japan argue that the claims are within the Panel's terms of reference. Moreover, 
they note that EC member States are WTO Members in their own right with individual obligations, 
and that the internal relationship between the European Communities and its member States cannot 
diminish the rights of other WTO Members to ex ercise their rights under the WTO Agreements.   
6.11 The European Communities  requests the Panel to reject th e complainants' request. It argues 
that the complainants may not challenge the "app lication" of duties by EC member States to the 
products at issue, in particular, in light of their st atements to the Panel during the proceedings that the 
complainants have not challenged the measures on an  "as applied" basis.  The European Communities 
submits that it is "exclusively competent to deci de the duty applicable to each product at issue", 
whereas the "application" of such duty is the so le responsibility of the EC member State customs 
authorities. In its view, the application of duties to pr oducts at issue is the same as the "application" of 
the EC measures at issue. The European Communities asserts that the complainants have not provided 
evidence of the application of duties to all products concerned by each of the 27 EC member States 
sufficient to support their claim regarding the app lication of duties, nor does it consider that the 
complainants may make their claim by referring so lely to the legal effects of the EC measures.
23 
Finally, the European Communities challenges the view of the complainants that the Panel's failure to 
reach findings with respect to EC member States wo uld compromise the ability of the complainants to 
achieve a positive resolution to the dispute. The European Communities contends that the 
complainants' position assumes that EC member State customs authorities would disregard EC law if the European Communities modified through amendment or repeal the measures at issue in order to 
implement the Panel report. As it argued in its subm issions, the European Communities submits that it 
                                                     
 
23 The European Communities further argues that Japan and Chinese Taipei may not sustain their 
claims based on their reliance on evidence submitted by the United States only (as provided in footnote 1 of the 
United States' request for review of precise aspects of the Interim Report).  At most, the European Communities 
submits that evidence provided by the United States could support its own claim, and not any by Japan or 
Chinese Taipei.   WT/DS375/R 
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  has exclusive competence to determine the applicab le duty rate for the products at issue, and that 
member States are bound to apply any new applicable duty rate. 
6.12 The Panel  observes that, despite the complainants' iden tification in their joint Panel request of 
all EC member States as respondents in this disput e, the complainants have  directed their claims 
against a set of EC measures. While the co mplainants have submitted evidence of the application  of 
duties by certain EC member State customs authoriti es in particular instances, we recall that the 
complainants have confirmed to the Panel that they did not seek to challenge these particular 
applications, but rather submitted such evidence in support of their "as such" claims against the EC 
measures.  The Panel also observes that the eviden ce provided by the complainants does not reflect all 
customs determinations by all EC member States . For these reasons, the Panel considers that it has 
made the appropriate findings in th is regard and hence, we have not  made the requested changes. We 
have nevertheless adjusted paragraph 8.2 to clarify our position in this regard. 
6.13 The complainants  request the Panel to designate the argument set forth in the penultimate 
sentence in paragraph 7.95 regarding whether or not the complainants have made a "prima facie" case 
as that advanced by the Europ ean Communities. They contend th at the Panel has not necessarily 
adopted the European Communities' characterization in  its reports and the para graph should be clearer 
to that effect.   
6.14 The European Communities  has not commented on the complainants' request. 
6.15 The Panel  has inserted the terms "according to  the European Communities", in the 
penultimate sentence, for purposes of clarification, specifying that the arguments pertain exclusively 
to the European Communities. 
6.16 The complainants  request that the final clause in the last sentence of paragraph 7.114 be 
deleted, arguing that the Report considers the comp lainants' characterization of the measures for each 
of the claims, and not only certain claims "in particular". 
6.17 The European Communities  has not commented on the complainants' request. 
6.18 The Panel  has deleted the clause; it does not consider that this change affects the substance of 
the Reports. 
6.19 The complainants  request the Panel to refer in para graphs 7.119 and 7.315 to refer to a 
separate section of the Reports to reflect that th e complainants have presented different views on 
whether the concessions based on Attachment B of th e ITA are located exclusively in the Annex to 
the EC Schedule or whether they are incorporated by reference. In particular, the complainants 
request the Panel to include the following foot notes: "Regarding the complainants' views on the 
location of the concession, see paras. 7.213-7.220". 
6.20 
The European Communities  has not commented on the complainants' request. 
6.21 The Panel  has inserted the footnote to clarify that the parties hold different views on the 
location of the concessions. 
6.22 The complainants  request the Panel to reconsider the re levant analysis in paragraph 7.137 in 
determining whether the 2009 CN is within its terms of reference.  In particular, the complainants 
argue that the approach set forth in paragraphs 7.169-1.170 that was used to evaluate whether the 
2007 and 2009 regulations are within its terms of re ference should also be relevant for evaluating the  WT/DS375/R 
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  2009 CN.  The latter approach was discu ssed in the Appellate Body Report on Chile – Price Band 
System .   
6.23 The European Communities  has not commented on the complainants' request. 
6.24 The Panel  has revised paragraph 7.137 to reflect the decision of the Appellate Body in C hile 
– Price Band System , as discussed in paragraphs 7.175- 7.176 of the Report, for purposes of 
completeness. The Panel has additionally harmon ized the section with the approach taken in 
paragraphs 7.171-7.191. 
6.25 The complainants  request the Panel to revise the final sentence in paragraph 7.183 to read 
"...we consider that a ruling that takes into cons ideration Council Regulation No. 179/2009 would aid 
in the settlement of this dispute".  They argue, in paragraphs 7.168-7.190, th at the Panel does not need 
to evaluate whether amendments to the duty susp ensions (in particular Council Regulations Nos. 
301/2007 and 179/2009) are within the Panel's term s of reference, or whether it may rule on the 
measures in the present dispute.  The complainan ts argue that they included Council Regulation 
493/2005 within the their joint Panel request due to th e reference that certain flat panel displays using 
LCD technology that are "capable of reproducing vide o images from a source ot her than an automatic 
data-processing machine" are not covered by the ITA.  The complainants do not contest that the Panel 
may consider whether it will address the argumen ts made by the European Communities and the 
complainants in connection with these measures.  In  particular, the complainants recognize that the 
Panel may consider whether the duty suspensions "c ure" the breach of Articles II:1(a) and II:1(b) 
resulting from the imposition of duties on certain disp lays. However, the complainants contend that 
the does not raise a question of the Panel's terms of  reference. The complainants argue that the duty 
suspension elements of the measures in question were  not part of the complainants' claims, and thus 
do not give rise to a terms of reference question.   
6.26 The European Communities  has not commented on the complainants' request. 
6.27 The Panel  notes that it has considered the dut y suspension as set forth under Council 
Regulation 493/2005, and subsequently modified  and extended under Coun cil Regulations Nos. 
301/2007 and 179/2009, not only due to the complain ants' initial identification of Council Regulation 
493/2005 as a measure at issue, but also in light of subsequent arguments made by both the European Communities and the complainants in connection w ith these regulations.  Moreover, we note that 
Chinese Taipei and the European Communities ha ve acknowledged the more recent modification, 
Council Regulation No. 179/2009, in the context of their arguments.
24  Chinese Taipei noted that it 
considered that Council Regulations Nos. 301/ 2007 and 179/2009 have not changed the essential 
nature of the original measure in dispute.25  The Panel considers  these measures to be relevant to its 
analysis of the measures as issue, particularly in light of  argumentation advanced  by the parties to 
this dispute. Having regard to the complainants' concern with the Panel's characterization of its 
analysis, however, the Panel has revised language in  the section heading and paragraphs 7.167-7.171 
and 7.183 accordingly. 
6.28 The complainants  request the Panel to revise paragra ph 7.198 to provide as follows: "means 
that the complainants have failed to satis fy the provisions of Article 6.2 ...". 
6.29 The European Communities  argues that this change is one of substance and should be 
rejected. 
                                                      
24 See, for instance, European Communities' first written submission, para. 94. 
25 Chinese Taipei's response to Panel question No. 18. WT/DS375/R 
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  6.30 The Panel  disagrees with the European Communities th at this change affects the substance of 
the paragraph and agrees to make the ch ange requested by  the complainants. 
6.31 The complainants  request the Panel to revise paragraph 7.229 to provide as follows: "The 
European Communities argues that  CN codes 8528 51 00 and 8528 41 00 in the current CN are the 
relevant provisions implementing obligations pursuant to the ITA...". 
6.32 The European Communities  argues that this change is one of substance and should be 
rejected. The European Communities submits gene rally that the paragraph misrepresents the 
arguments of the European Union,  the last sente nce of the paragraph having been taken out of 
context. Accordingly, the European Communities requ ests that the Panel review the paragraph in its 
entirety. 
6.33 The Panel  has reviewed the paragraph in its entirety, which summarizes arguments appearing  
in paragraphs 44-47 of the European Communities' second written submission.  The Panel  has made 
minor editorial changes to paragraph 7.2 29 and sees no need for additional changes. 
6.34 The complainants  request the Panel to modify the first sentence of paragraph 7.234 as 
follows, to reflect their arguments: "Based on the terms of the descriptions for these CN codes, it 
appears evident that under the CN 'monitors of a kind solely or principally used in an automatic data-
processing system of heading 8471' are classifiable  under duty free CN codes 8528 41 00 and 8528 51 
00". 
6.35 The European Communities  has not commented on the complainants' request. 
6.36 The Panel  has made this editorial change, which does not alter the substance of the 
paragraph. 
(b) Comments by the European Communities 
6.37 The European Communities  requests the Panel to use the term "EC member States customs 
authorities" in place of "EC member States" in pa ragraphs 7.141, 7.147 and 7.150 for accuracy.  
6.38 The United States  submits that the Panel uses the term "EC member States" correctly in the 
context in which these terms appear, to refer to th e entities that have undertaken obligations pursuant 
to the EC legal regime under di scussion. The United States assert s that the European Communities 
has not explained why the references are incorrect ot her than to state that EC member State customs 
authorities apply EC law.  The United States argu es that the European Communities does not contend 
that EC member State customs authorities are in fact authorities of the member State rather than of the 
European Communities. 
6.39 The Panel  does not perceive a substantive distincti on between  one term or the other in the 
context of its Reports.  We note, in addition, that  the Panel used the term "EC member States" in 
discussing their identification as respondents in the dis pute in paragraphs 7.82 - 7.90 of the report.  
For these reasons, and for consistenc y, the Panel does not consider it necessary to adopt the proposed 
changes of the European Communities. 
6.40 The European Communities  requests the Panel to refrain, in paragraphs 7.161, 7.267, 7.757, 
7.1153, 8.4, 8.5, 8.14, 8.16, 8.17, 8.25, 8.27,  8.28 and 8.37, from making recommendations with 
respect to point 4 in the annex to Commission Regulation No. 634/2005 and all of Commission Regulation No. 2171/2005. The European Commun ities argues that these provisions have been  WT/DS375/R 
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  repealed by Commission Regulation No. 1179/2009 of 26 November 2009 (Articles 2 and 3 and 
Annex II, point 46 and Annex III, point 28). Furtherm ore, it requests the Panel to refrain from making 
recommendations with respect to CNEN 2008/C 133/ 01, because aspects thereof relevant to this 
dispute have been deleted.  In addition, the Eu ropean Communities requests the Panel to refrain from 
making recommendations with respect to Commission Regulation No. 517/99 in its entirety and point 
4 of the Annex to commission Regulation No. 400/2006, arguing that these provisions have been repealed by Commission Regulation No. 1179 /2009 of 26 November 2009. The European 
Communities refers to Attachments 1 and 2 to its Comments on the Interim Reports in these respects. 
6.41 The European Communities additionally requests th at the following text be added at the end 
of each of  paragraphs 8.14, 8.25 and 8.37: "Since the European Union has confirmed that point 4 of 
Commission Regulation No. 634/2005 has been de leted, Commission Regulation No. 2171/2005 has 
been repealed and the relevant parts of CNEN 2008/C 133/01 have been deleted, the Panel does not 
make any recommendations on these measures." 
6.42 Additionally, in commenting on paragraph 7. 1153 of the Interim Reports, the European 
Communities informs the Panel of the attachments to  its comments on the Interim Reports.  However, 
Unlike with its comments with respect to other pa ragraphs of the Interim Reports, the European 
Communities does not request any specific changes to paragraph 7.1153, or to the findings on the 
consistency of the relevant measures with respect to the treatment of MFMs.  
6.43 The complainants  ask the Panel to decline the requ est by the European Communities to 
modify its recommendations in the cited paragraphs and  request the Panel to  delete paragraph 7.161, 
the final sentence of paragraph 7.267, paragraph 7. 1156 and paragraphs 8.14, 8.25 and 8.37.  In this 
last respect, the United States argues that paragraph 8.14 as written may make resolution of the dispute more difficult by conditioning the recommendation and providing no mechanism for determining which measures will be in force on the date of adoption of the reports.  It asserts that  the 
scope of recommendations would be unclear.  
6.44 The United States  submits that the Interim Reports propose to make a conditional 
recommendation on the basis of statements by th e European Communities that certain measures 
would be repealed. The complainants argue that the European Communities did not provide evidence 
confirming the repeal of these measures during th e Panel proceedings, and that introduction of 
evidence at this stage of the proceedings is inappropriate.
26 Accordingly, they argue that there is not a 
permissible basis for failing to make recommendations. They argue that a Panel is required to make 
recommendations on measures that are within its te rms of reference once it has determined any WTO 
inconsistency, finding support for this in Article 19.1 of the DSU and various Panel and Appellate 
Body Reports, in particular in cases where the meas ure expired only after the panel was established.  
As a factual matter, the United States and Chinese Taipei  further argue that the introduction of 
evidence of the repeal of the measures does not estab lish that the measures do not continue to have 
legal effect, or that EC member States do not con tinue to apply duties to products subject to the 
Panel's findings in contravention of their own WT O obligations and the repeal of the measures. 
6.45 Moreover, the United States and Chinese Taipei recall their concern that, by declining to 
make findings regarding EC member States, the Pa nel may have increased the risk that a positive 
                                                      
26 Chinese Taipei submits in addition, that the late introduction of evidence of the repeal of certain 
measures runs contrary to paragraph 15 of the Panel's Working Procedures.  This paragraph states that "the 
parties shall submit all factual evidence to the Panel no later than during the first substantive meeting, except with respect to factual ev idence necessary for purposes of rebuttals , answers to questions or comments on 
answers provided by others.  Exceptions to this pr ocedure will be granted upon  a showing of good cause." WT/DS375/R 
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  resolution to the dispute will not be achieved.  Sp ecifically, the United States is concerned that the 
European Communities may not take steps beyond rep eal of certain measures, and thus fail to deal 
with member States that continue to apply duties to the products despite such repeal. 
6.46 Japan   questions why the matter of the repeal wa s not reported to the Panel earlier and, like 
the United States, observes that the interim review st age is not the appropriate stage to introduce new 
evidence. 
6.47 The Panel  notes at the outset that the European Communities  submitted on June 25, 2010  
two documents (Attachments 1 and 2) attached to the European Communities' Comments on the 
Interim Reports.  The Panel had not seen these mate rials prior to their submission by the European 
Communities. The European Communities argues th at these documents demonstrate that it has 
deleted point 4 in the annex to regulation 634/200 5 and that regulation 2171/2005 has been entirely 
repealed.  The European Communities also argu es that the relevant parts of CNEN 2008/C 133/01 
have been deleted.  The European Communities requests that, on the basis of these documents, the 
Panel refrain from making any recommendations in relation to those measures.  
6.48 We note that the documents in Attachment 1 and 2 were published in November 2009, long 
after the record had closed.  At no time between  November 2009 and the issuance of the Interim 
Reports did the European Communities seek leave of th e Panel to provide this additional information. 
Article 15.2 of the DSU, which provides for the Interim Review process, was considered by the 
Appellate Body in EC – Sardines . It clarified that this provision do es not permit parties to "introduce 
new evidence", and is availabe only "for the pane l to review precise aspects of the interim report".
27 
Consistent with the Appellate Body's approach and in the interest of protecting the due process rights 
of the complainants, who had no opportunity to make submissions for the record on the documents provided, we decline to consider further the docum ents attached by the European Communities to its 
request for interim review. The Panel also declines  to make adjustments to the Interim Reports to 
exclude the measures in question from the Panel's recommendation and to add text about the 
European Communities' confirmation that certain m easures have been repeal ed, as requested by the 
European Communities. 
6.49 The Panel now turns to the issue raised by th e complainants in response to the European 
Communities' request, namely whether the Panel may decline to make recommendations on those 
measures once it has concluded that they are incons istent with the respondents' WTO obligations. The 
complainants refer to Article 19.1 of the DSU, whic h provides that "[w]here a panel or the Appellate 
Body concludes that a measure is inc onsistent with a covered agreement, it shall  recommend that the 
Member concerned bring the measure into conformity  with that agreement" (emphasis added by the 
complainants in their comments). The complainants additionally refer to a series of Appellate Body 
and Panel reports in which panels  and the Appellate Body have pr oceeded to make recommendations 
on measures within their terms of reference that  were modified or expired after the panel was 
established.
28 The United States contends that panels ha ve  declined to make recommendations only 
where measures had expired before the Panel was established.29 
                                                      
27 Appellate Body Report on EC – Sardines , para. 301.  The Appellate Body held similarly in two 
subsequent disputes:  see Appellate Body Report on EC – Selected Customs Matters , para. 259 and Appellate 
Body Report on EC – Bananas III (US) , paras. 6.1-6.18. 
28 See, e.g., Panel Report on EC – Approval and Marketing of Biotech Products , paras. 8.16 and 8.36; 
Appellate Body Report on EC – Selected Customs Matters , para. 310; Appellate Body Report on Dominican 
Republic – Import and Sale of Cigarettes , para. 129. 
29 See Appellate Body Report on US – Certain EC Products , para. 81; Appellate Body Report on  US – 
Upland Cotton , para. 272.  Appellate Body Report on EC – Bananas III (US).   WT/DS375/R 
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  6.50 The Panel has decided to adjust certain paragraphs of its Reports, including its 
recommendation pursuant to Article 19.1 of the DSU, in order to reflect more clearly the fact that, at the time of writing the Interim Reports, there wa s no evidence properly before the Panel that the 
measures in question had in fact been repealed. Accordingly, the Panel has made adjustments to 
paragraphs 7.161, 7.267, 7.1156, 8.14,  8.25 and 8.37, in this respect. 
6.51 The European Communities  requests the Panel to review pa ragraph 7.191 of the Reports in 
their entirety and reflect differences in the scope of the complainants' claims.  It submits that Japan's 
claims with respect to flat panel display devi ces are narrower than those advanced by the United 
States and Chinese Taipei on the basis of language a ppearing in paragraphs 216 of Japan's first written 
submission, which refers to "flat panel display devices 'for' ADP machines", as well as "LCD monitors with DVI", and those referred to in ar guments of the United States and Chinese Taipei, 
namely in this last respect, "those devices that can  display information only from an ADP machine".   
6.52 The United States  submits that it is not necessary for the Panel to make changes to these 
sections, noting that Japan expressly stated that the scope of its claims concerning flat panel display 
devices was the same as that of the other parties. Japan  argues that the European Communities has 
mischaracterized the scope of its claim concerning fl at panel display devices, as it had equally done in 
its second written submission. Accordingly, the United States and Japan request the Panel to reject the 
proposal by the European Communities to modify paragraph 7.191. 
6.53 The Panel  sees no distinction in the scope of Japan's claim in relation to those of the other 
complainants, in particular in light of statements by Japan that it considers products at issue to be 
those it has described and those referred to by other parties.  Similar to the other complainants, Japan 
has referred to the language of the FPDs narrativ e description, as well as to language in tariff item 
number 8471 60 90 in the EC Schedule.  In addition,  similar to the other complainants, Japan has 
discussed certain technology in display devices, su ch as LCD monitors with  DVI interfaces.  In 
addition, all three complainants submitted a join t Panel request discussing identical claims and the 
matter before the Panel.  For these reasons, the Pane l sees no basis to make revisions to the Reports as 
requested by the European Communities. 
2. Flat Panel Display Devices (FPDs) 
(a) Comments by the Complainants 
6.54 The complainants  request the Panel to revise paragraph 7.246 to provide as follows: "The 
Panel considers that, under the CN, read in conj unction with the CNEN, a display based on LCD, 
OLED or plasma technology ... cannot be capable of connecting to other sources". 
6.55 The European Communities  argues that this change is one of substance and should be 
rejected. 
6.56 The Panel
 disagrees that this change is one of subs tance and has made this change as it better 
reflects the intention of the Panel. 
6.57 The complainants  request that the final sentence of  paragraph 7.477 be revised for 
consistency, as follows: "Rather, we consider our task to be to  determine whether the concession 
covers those products at issue, namely those that  are designed for use with automatic data-processing 
machines (which, undisputedly, fall within the ITA)...". 
6.58 The European Communities  has not commented on the complainants' request. WT/DS375/R 
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  6.59 The Panel  has made this editorial correction for consistency. 
6.60 The complainants  request the Panel to revise the concl uding sentence of paragraph 7.502 as 
follows: "Nor do we understand them to argue that  all "televisions" necessarily qualify as flat panel 
display devices under the concession."  The complainan ts acknowledge that they do not claim that all 
display devices or monitors, such as televi sions using LCD or other non-CRT technologies, 
necessarily fall within the meaning of the FPDs na rrative description.  However, they request the 
Panel to clarify a statement in paragraph 7.502 re garding whether televisions may qualify as flat panel 
display devices under the concession.  The compla inants argue that they have not excluded the 
possibility that some "televisions" might fall under the concessions, depending on the definition given 
to a "television".    
6.61 The European Communities  submits that the complainants' request amounts to an attempt to 
enlarge the findings of the panel ex-post of the actu al proceedings.  It argues that the complainants 
never argued that flat panel televisions w ould be within the scope of the claims. 
6.62 The Panel  notes that the complainants have not provided any citation to arguments that 
support the broader formulation requested.  The complainants point out that the meaning of the term "television" was not discussed in this dispute.  Acco rdingly,  the Panel declines to modify the text.  
6.63 The complainants  request the Panel to clarify its statement regarding the duty suspension in 
paragraph 7.744 with the following modificati ons: "However, Council Regulation No. 179/2009 
suspends those duties for some products, and hence th ere is no inconsistency with Article II:1(b) to 
the extent the duty suspension is applied to  a product covered by either concession." 
6.64 The European Communities  submits that it does not understand the changes in light of the 
language appearing in paragraphs  7.745 of the Interim Report. 
6.65 The Panel  has modified the text to clarify the di stinction between when the suspension is 
applied (as in para. 7.744) and when it is not (as in para. 7.745). 
(b) Comments by the European Communities 
6.66 The European Communities  requests the Panel to review th e citations in paragraphs 7.269, 
7.270 et seq., and footnotes 359, 360 and 363,  which it argues concern exclusively MFMs. The 
European Communities expresses concern that the analys is in this section is based on the existence of 
evidence that pertains to MFMs. 
6.67 The United States  argues that the evidence relied on by the Panel is not inapplicable simply 
because the BTI pertains to a product other than  LCD monitors.  It argues that the evidence 
demonstrates that EC member States rely on regula tions that use earlier CN numbers to classify goods 
under the most recent CN, supporting the conclusion that a mere change in CN numbers does not result in prior regulations losing their relevance fo r purposes of customs classification in the European 
Communities. For purposes of accuracy, the United  States proposes that the Panel modify the 
penultimate sentence to eliminate a reference to LC D monitors, as follows: "Moreover, there is some 
evidence that at least in some instances national authorities conti nue to support their classification 
decisions with reference to classifica tion measures using older CN codes". 
6.68 The Panel  has taken the approach described by th e United States in the proposed Interim 
Report.  Namely, despite the fact that the BTI pertai ns to a product different than an LCD monitor, the 
Panel considers the method applied demonstrates that EC member States rely on regulations using  WT/DS375/R 
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  older CN numbers despite changes in the current CN. As suggested by the United States, the Panel 
has modified the penultimate sentence to remove the reference to LCD monitors. 
6.69 The European Communities  requests the Panel revise paragraph 7.475.  The European 
Communities submits that it did not argue that the terms "mainly" and "only" in paragraph 7.475 
should be "added" to the narrative description, but are "interpretative tools". 
6.70 The United States  responds that it does not understand th e Panel to have asserted in this 
paragraph that the European Communities argued th at words should be added to the text of the 
concession.  Rather, the United States submits that it  understands the Panel to find that the position of 
the European Communities would require one to r eads words into the text that do not appear.  
Therefore, it submits that the paragraph need not be revised. 
6.71 For purposes of clarity, the Panel has chaged the word "add" to read "read in", as  the Panel 
did not mean to suggest the literal addition of terms. 
6.72 The European Communities  submits that, in paragraphs 7.560 et seq., including 7.587 to 
7.596, the Panel has not considered the state of t echnology at the time of the ITA negotiations in the 
context of the ordinary meaning of the relevant  concessions, despite what it asserts are very clear 
arguments in its submissions. The European Communities requests the Panel to address these 
arguments. 
6.73 The United States  submits that the Panel has not om itted considering arguments regarding 
the state of technology at the time of ITA negotiatio ns, but instead considers and rejects the argument, 
in particular in paragraphs 7.589 – 7.594.   It thus considers revisions unnecessary.  
6.74 The Panel  has addressed what it understood to be arguments by the European Communities 
concerning the state of technology in the section of  the report entitled "Other arguments".  We note 
that in their submissions on flat panel display devi ces, unlike in their submissions for set top boxes, 
the European Communities did not clearly designate arguments concerning the state of technology as 
necessarily relating to "surrounding circumstances" or "ordinary meaning".  In any event, in light of 
the broad nature of the terms of the concessions, the Panel concluded that the state of technology does 
not inform its interpretation.  Accordingly, the Pa nel considers it has addressed the arguments of the 
European Communities in paragraphs 7.560 et seq. 
6.75 The European Communities  requests the Panel to revise pa ragraph 7.614 to reflect its 
arguments appearing in paragraphs  100-101 and footnote 812 of its firs t written submission.  It argues 
that these paragraphs do not state that "genuine ADP  monitors" do not equate to "those solely used 
with ADPs". 
6.76 The Panel  notes that the paragraphs cited by the European Commun ities state that the 
question of whether "a given multifunctional LCD mon itor falls within the scope of [tariff heading 
8471 60 90]" is "wholly different" from whether a "g enuine ADP monitor would fall within the scope 
of the ordinary meaning of the heading".  It con tinues, stating that "ADP monitors undoubtedly fall 
within this heading, but this says very little about  whether the different kinds of multifunctional LCD 
monitors subject to this dispute fall within the ordi nary meaning of the heading".  It then states that 
these multifunctional monitors may be classified as video monitors or as reception apparatus for 
television under different headings. 
6.77 Based on this language in these paragraphs, th e Panel understands the European Communities 
to distinguish between what it considers are "multifunctional" monitors from "genuine ADP WT/DS375/R 
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  monitors".  The Panel understands the principal di fferentiator in the terms used by the European 
Communities is whether a product is  multifunctional or not.  A product that is not multifunctional is 
one that does not have multiple uses or one that is onl y capable of being used in one respect.  As the 
European Communities refers to ADP  machines in this context, th e Panel understands the European 
Communities to refer to products that are not mu ltifunctional, but those capable of being used 
exclusively with ADP machines. 
6.78 Nevertheless, the Panel has revised the text to paraphrase the views of the European 
Communities expressed in paragraphs  100-101 a nd footnote 812 of its first written submission. 
6.79 The European Communities  requests the Panel to reflect arguments in paragraph 7.698 from 
paragraphs 160 to 169 in its first written submissi on.  The European Communities submits that it has 
not conceded that "it would in all cases have 'pla ced relatively too much weight on criteria in CNEN 
2008/C 133/01 in classifying these products'", referri ng to paragraphs 160 to 169 in its first written 
submission. 
6.80 The complainants  have not commented on the Eu ropean Communities' request. 
6.81 The Panel  has revised the text to paraphrase the views of the European Communities 
expressed in paragraphs 167-169 of  its first written submission. 
6.82 The European Communities  considers that paragraph 7.710 misrepresents its position.  The 
European Communities submits that it has not argued that LCD technology would fall outside the coverage of ITA products. 
6.83 The complainants  have not commented on the Eu ropean Communities' request. 
6.84 The Panel  has revised the text to paraphrase the views of the European Communities 
expressed in paragraphs 71-76, 87, 90 of the Euro pean Communities' first written submission.   
6.85 The European Communities requests the Panel to delete th e final sentence of paragraph 
7.711, submitting that it misrepresents the position of the European Communities. 
6.86 The complainants  have not commented on the Eu ropean Communities' request. 
6.87 The Panel  has revised the text to reflect the Europ ean Communities' arguments as reflected in 
its Response to Panel question No. 50. 
6.88 The European Communities  submits that findings of violation of Article II:1(a) in 
paragraphs 7.757, 8.4(e), 8.5(e), 8.16(e), 8.17 (e),  8.27 (e) and 8.28(e), should be confined to the 
scope of the findings under Article II:1(b) of the GATT 1994 absent the duty suspension. 
6.89 The complainants
 observe that the Panel's findings under Article II:1(a) apply both to 
products subject to the duty suspension as well as to products that are not subject to the duty suspension.  They accordingly reject these proposed changes. 
6.90 The Panel  determined in paragraph 7.757 that a viol ation of Article II:1(a) results regardless 
of whether the duty suspension is applied. Accord ingly, the Panel declines to make the proposed 
changes.  WT/DS375/R 
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  3. Set Top Boxes Which Have a Communication Function (STBCs) 
(a) Comments by the Complainants 
6.91 The complainants  request the Panel to modify language  in paragraphs 7.854, 7.855, 7.882, 
7.937, 7.948, 7.952, 7.977 and 7.981, discussing th e features and additional characteristics of a "set 
top box", by removing the term essential character.  Specifically, the complainants request the Panel 
to refrain from using the term "essential charact er" in explaining a set  top box, because this 
terminology is also used in the HS GIR 3(b).  The complainants point to a finding by the Panel that 
the HS is not relevant in the context of Attachment B concessions.   
6.92 The European Communities  has not commented on the complainants' request. 
6.93 The Panel  has modified paragraphs 7.854, 7.855, 7.882, 7.937, 7.948, 7.952, 7.977 and 7.981 
in the interim report to remove the use of the term "essential character" without changing the 
substance of the paragraphs.  
6.94 The complainants  request the Panel to include a foot note in paragraph 7.823, citing the 
complainants' response to Panel question Nos. 85, 88 and 146. 
6.95 The European Communities  has not commented on the complainants' request. 
6.96 The Panel  has included the suggested footnote. 
6.97 The United States  requests the Panel to reconsider its conclusion in paragraph 7.957 with 
respect to tariff line number 8528 12 91, in light of it s view that it provided an adequate explanation 
of each of the terms in the concession for tariff lin e number 8528 12 91.  It notes that the terms are 
"materially identical" to the terms used for the conc ession contained in Attachment B of the ITA.  It 
further argues that the Panel's conclusions rega rding the terms of Attachment B are "equally 
applicable" to those elements of the concession in the subheading.  The United States acknowledges 
that this subheading refers to devices "capable of  receiving televisions signals", unlike the description 
in Attachment B.  The United States additionally contends that it has explained why the terms of 
heading 8528 support its interpretation of the conces sion for tariff line number 8528 12 91.  To the 
extent the Panel were not to modify its conclu sions, the United States requests the Panel to, at a 
minimum, delete the sentence stating that the Unite d States has not addressed the interpretative issue 
by taking into consideration the locatio n of the concession in the EC Schedule. 
6.98 The European Communities  argues that the changes proposed by the United States would 
not be appropriate in light of its argum ents presented throughout the proceedings. 
6.99 The Panel
 does not consider it appropriate to modify its conclusions that the United States 
has failed to meet its burden to establish a prima f acie case of violation, in light of its initial 
consideration of arguments by the United States.  The Panel has incorporated a number of textual 
changes to clarify its conclusions in paragraph 7.957. 
6.100  The complainants  request the Panel to modify paragraph 7.990 to reflect their argument 
against the statement in the HSEN that ISDN, WLAN and Ethernet modems "perform a similar 
function but ... do not modulate or demodulate signals ". The complainants suggest the use of the 
phrase "the presence of a modem, but not including devices that it states perform a similar function but do not...". WT/DS375/R 
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  6.101  The European Communities  has not commented on the complainants' request. 
6.102  The Panel  has made this editorial change. 
6.103  Chinese Taipei  notes that paragraphs 7.998 and 7.999 correctly reflect its erroneous 
reference to "May 2007" instead of "April 2007" and to a "favourable" opinion instead of "no 
opinion" in its Joint Panel Request.   Chinese Taipei  underlines that it did, however, correctly refer to 
"April 2007" and to the "no opin ion" since its first written submission and that  the European 
Communities acknowledged this in its comments on th e United States' and Chinese Taipei's response 
to Panel question No. 154.  
6.104  The European Communities  has not commented on this matter. 
6.105  The Panel  confirms that Chinese Taipei is correct. 
(b) Comments by the European Communities 
6.106  The European Communities  requests the Panel to reconsider its summary of arguments in 
paragraphs 7.782-7.786, and pa ragraphs 7.774 to 7.778; and 7.779 to 7.780, concerning the 
complainants' citation of "with" and "which" in  the context of discussing the STBCs narrative 
description.  It considers the Panel's summary does not  reflect the exchange between the parties.  In 
particular, the European Communities states that a principal point it was making in its discussion was 
that a correct interpretation of a commitment or c oncession requires consideration of the correct text 
of the concession.  It argues that the complainan ts' decision to replace the language "which" at times 
with the term "with", caused a lack of clarity with respect to what was the co rrect description at issue, 
where it was located and the meaning of the two te rms.  The European Comm unities asserts that this 
lack of clarity affected "the procedural situation that the [European Communities] was facing".  In its 
view, the Panel's approach to addressing the issu e obscures the real exchange between parties. 
6.107  The United States  submits that it has not taken the position that terms other than those used 
in the text of the concession should be the basis for an analysis, in particular, as explained in 
paragraphs 7.783 and 7.784. It therefore request  the Panel to reject the European Communities' 
proposal. 
6.108  The Panel  understands the European Communities to assert that the manner in which the 
complainants described the concession for "set top boxes", including their reference to both the terms 
"with" and "which", as well as their discussion of the ro le of the EC headnote,  created a due process 
issue.  However, the Panel notes its conclusion in  paragraph 7.780 that the language in the STBCs 
narrative description in Attachment B and that appear ing in the Annex to the EC Schedule is identical, 
thus giving rise to identical scope (as concerns th at language). In addition,  in paragraph 7.787, we 
determined that the parties have sufficiently id entified the concession in setting forth their claim 
pursuant to the STBCs narrative descriptions. Acco rdingly, the Panel does not consider that 
paragraphs 7.782-7.786; 7.774 to 7.778; a nd 7.779 to 7.780 should be adjusted. 
6.109  The European Communities  argues that the Panel's summary  of arguments in paragraph 
7.829 and footnote 1037 seems to relate, in part, to arguments that concern flat panel display devices 
and not set top boxes which have a communication function. 
6.110  The United States  submits that the arguments cited by the Panel pertain to the view on 
interpretation of the EC headnote, and are equally  relevant to the STBCs narrative description under 
discussion.  It therefore considers changes unnecessary and inappropriate.  WT/DS375/R 
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  6.111  The Panel  recognizes that the cited arguments relate, in part to arguments that concern flat 
panel display devices.  However, as indicated by  the United States, these arguments apply to the 
European Communities' interpretation of the EC hea dnote.  The Panel considers these relevant to its 
analysis of the concession based on the STBCs narra tive description, and had therefore referenced 
them in this paragraph.  For purposes of clarity, th e Panel has made editorial revisions to the language 
in the footnote. 
6.112  The European Communities submits that the Panel has not considered evidence in 
paragraph 7.872 that was presented in Exhibit EC-1 07 in a manner "optimal for WTO proceedings".  
The European Communities argues that the exhibit,  which is 19 pages long,  establishes that a 
terminal adapter used with ISDN service is not a modem, and is sometimes incorrectly considered a modem. 
6.113  The complainants  have not commented on the Eu ropean Communities' request. 
6.114  In the course of its deliberations in this case, the Panel  considered the exhibit referred to by 
the European Communities.  This is reflected by re ference to Exhibit EC-107 in paragraph 7.872.  The 
Panel therefore declines to make any changes.  
6.115  The European Communities  submits that the Panel has not adequately considered evidence 
presented in paragraph 7.943 (as found in Exhibits EC-39, 40, 41 and 42) in a manner "optimal for 
WTO proceedings". 
6.116  The United States argues that the European Communities is  attempting to reargue points that 
were already addressed by the Panel. 
6.117  The Panel  has reviewed the eviden ce discussed by the European Communities (including 
each of the exhibits, which provide lists of proposed products and headings to be considered, many of 
which are not relevant), as refl ected in paragraph 7.943. The Pa nel notes that this evidence was 
considered by the Panel in the course of its deliber ations. In particular, the Panel noted the list of 
products referred to in the 18 Oct ober 1996 paper refer to a set t op box product broadly, thereby 
supporting a broad interpretation. In addition, we noted no reference was made to language that was 
not included in the final text, and that no discussion  centred on hard drive or recording features, or 
additional functionality.  On the basis of this cons ideration, the Panel concluded that the European 
Communities did not demonstrate how or why the documents it referred to should lead to any 
different interpretation of the concession. The Eu ropean Communities has not indicated any specific 
changes it wishes to be included. In light of the fo regoing, the Panel declin es to make any changes. 
6.118  The European Communities  requests the Panel to give a more thorough assessment in 
paragraph 7.951 to Exhibit EC-41, a fax from Jap an's MITI dated 23 October 1996. The European 
Communities argues that this document is actual a nd contemporaneous, available to ITA drafters, 
specifically refers to the narrative description, an d refers to the products the European Communities 
considers to be covered by the terms of the conce ssion based on the STBCs narrative description.  It 
emphasizes further that this document was communi cated to others. For these reasons, the European 
Communities asserts it is not clear why this document should not inform or influence interpretation of 
the concession at issue. At a minimum, the Eur opean Communities suggests that a more thorough 
consideration is appropriate gi ven the importance attributed to the document by the European 
Communities. 
6.119  The Panel  has reviewed and incorporated the re ferenced fax from Japan's Ministry of 
International Trade, dated 23 Oct ober 1996, which itself attaches a "W eb TV Networks" press release, WT/DS375/R 
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  in paragraph 7.951. The Panel observes that this  document confirms what was included in Exhibit 
EC-38. In addition, the Panel took the evid ence presented by the European Communities into 
consideration, weighing it against what was provi ded by the complainants (e.g. Exhibit US-114). 
6.120  The European Communities  requests the Panel to reconsider  its analysis and conclusions 
regarding paragraphs 7.1017 – 7. 1025 and paragraph 7.1092. The European Communities rejects the 
analysis and conclusions in pa ragraphs 7.1017-7.1032 and 7.1092, arguing that the Panel did not 
sufficiently consider the "draft" character of th e CNENs at issue. In particular, the European 
Communities argues that the Panel only considered the attributes of duly adopted CNENs, and not 
those of the draft or preparatory versions, when determining whether the "draft CNENs" are "laws, 
regulations, judicial decisions or administrative ru lings of general application" and "measures of 
general application ..." under Articles X:1 and X: 2 of the GATT 1994. By doing so, the European 
Communities considers the Panel's analysis to be  flawed. In its view, the Panel should have 
considered the draft character at all points in the analysis, and not solely in its assessment of whether 
the CNEN amendments were "made effective", under Article X:1, or whether the CNEN amendments 
were "enforced" within the meaning of Article X:2. 
6.121  The European Communities does not reject the possibility that preparatory acts which were 
enforced may fall within the disciplines of Article s X:1 and X:2.  However, it presupposes that one 
would analyze such draft measures together with an y relevant administrative instructions that were 
given, or other measures giving effect to the prepar atory act. Such an approach, it argues, would allow 
a panel to properly consider the new attributes of th e draft measures, which, in fact, would no longer 
be draft measures, but would be given a certain effe ct beyond that of a mere draft. In this case, the 
European Communities argues that the Panel should have taken into account the second Chairman's 
Statement together with the draft CNEN, in co nsidering whether the draft constituted a "law, 
regulation, judicial decision [or] administrative rulin g" or "measure of gene ral application taken by 
any contracting party".   
6.122  The European Communities further notes that th e Panel's approach contradicts the way the 
Panel itself refers to its findings. According to  the European Communities, the Panel refers 
interchangeably to CNENs and to the "draft" CN EN amendments, which highlights the conceptual 
difficulty with the Panel's approach to the inte rpretation. The European Communities refers to 
paragraphs 7.1026, 7.1032 and 7.1092.  
6.123  The United States  and Chinese Taipei  request the Panel to reject the comments by the 
European Communities.  The United States  submits that the European Communities is attempting to 
reargue points about the legal effect of the "dra ft" CNENs that were rejected by the Panel in 
paragraphs 7.1038-7.1063. For reas ons described in those paragraphs, it does not consider the so-
called "draft" character of the CNENs to alter its views on whether the measures in question are 
"laws, regulations, judicial decisions and administ rative rulings."  The United States suggests that the 
Panel insert a footnote in  paragraph 7.1024 that cros s-refers to paragraphs 7.1037-7.1062, noting that 
the issues are relevant to the matters di scussed in this section.  Chinese Taipei  considers that the Panel 
correctly examined whether the draft CNENs qualify  as "laws, regulations, judicial decisions or 
administrative rulings" and "measures of general appli cation".  In its view, the draft character of the 
said measures does not alter the analysis.  If the interpretation of the European Communities were 
accepted, such an approach would render Articles X:1 and X:2 of the GATT 1994 "inutile".   
6.124  The Panel considers that its analysis and findings in paragraphs 7.1017- 7.1032 and paragraph 
7.1092 are correct and that there is no basis fo r agreeing with the European Communities' request. 
The Panel has not concluded that all draft measur es or preparatory acts would necessarily be covered 
by Articles X:1 and/or X:2. Instead, the Panel c oncluded that an analysis of the coverage of  WT/DS375/R 
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  Articles X:1 and X:2 must be based primarily on the content and substance of the instrument at issue, 
and not merely on its form or nomenclature, such as, for example, the alleged "preparatory" character 
of the CNENs at issue.  Put differently, the mere fact that a measure is labelled as a "draft" is not 
enough to preclude it from coverage under Articles X:1 and X:2. In order to assess whether the 
CNENs at issue are indeed "preparatory acts" – as opposed to only being labelled as "preparatory 
acts" – the Panel considered whether the CNENs at i ssue had any effect in practice, i.e., were "made 
effective", before their formal adoption by th e Commission and publication in the EU Official 
Journal. Because Article X:1 also explicitly requires considering whether the "law, regulation, judicial 
decision or administrative ruling" at issue was made effective, the Panel considered that the alleged 
"preparatory" character of the CNENs at issue s hould be addressed separately when considering the 
"made effective" requirement.  Had the Panel concluded that the draft CNENs at issue were true preparatory acts, with no effect until their official  adoption by the Commission and publication in the 
EU Official Journal, the Panel would have concl uded that the CNENs at issue were not covered by 
Article X:1. However, the Panel found that in this dispute, the CNENs at issue were made effective, 
even though they were labelled "draft CNEN", such th at they were in fact not mere "preparatory acts". 
Similarly, the Panel did not consider the alleged "preparatory" nature of the CNENs at issue when 
considering whether the CNENs at issue are a "measu re", but instead, did so when considering the 
requirement of "enforcement". Again, had the Panel concluded that the draft CNENs at issue were not 
being enforced, the Panel could not have established an Article X:2 violation.   
6.125  In addition, the Panel would note that it in fact  analyzed the draft measures together with the 
particular constellation of facts, including relevant statements that were given by the Chairman of the 
Customs Code Committee, the votes on the measur es taken by the Customs Code Committee, and 
also in light of BTIs that were issued by certain EC member States.  In this respect, the Panel recalls 
its finding in paragraph 7.1061. 
6.126  Accordingly, the Panel declines the European Co mmunities' request to revise its analysis or 
conclusions. For clarity, the Panel will include  the footnote proposed by the United States in 
paragraph 7.1023. Finally, the Panel notes that it referred to CNENs when dealing with CNENs in 
general, while it referred to "CNEN amendments " when addressing the specific CNENs at issue. 
4. Multifunctional Digital Machines (MFMs) 
(a) Comments by the complainants 
6.127  The complainants  ask the Panel to modify pargraph 7.1234 to clarify that the type of 
apparatus referred to in su bparagraph (a) is one which can connect to an ADP.   
6.128  The European Communities  has not commented on the complainants' request. 
6.129  The Panel  has made the requested clarification. 
6.130  The complainants  suggest that the Panel add the fo llowing language after the penultimate 
sentence in paragraph 7.1303: 
"As we indicate in pargraph 7.1392 et seq. , no MFM may properly be classified under 
HS 9009.12, and no other argument has been made by the EC to the effect that any MFM can be classifiable outside Chapters 84 and 85" 
The complainants believe that this clarifi cation will avoid any confusion over the way in 
which the Panel is using Note 3 to Section XVI as context in its discussion.   WT/DS375/R 
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  6.131  The European Communities  has not commented on the complainants' request. 
6.132  The Panel  does not consider that the way the Panel is using Note 3 to Section XVI as context 
in its discussion of subheading 8471 60 is confusi ng, and indeed does not relate to its separate 
findings later about the scope of s ubheading 9009 12.  However, to a void the possibility of confusion, 
the Panel has added the following footnote to  the penultimate sentence of that paragraph: 
"We note that the only argument the Europ ean Communities has made with respect to 
the possible classification of MFMs outside Chapters 84 and 85 is with respect to their classification in subheading 9009 12.  The Panel has dealt with whether MFMs 
can be classified in subheading 9009 12 in para graphs 7.1392 et seq.  below."  
6.133  The complainants  suggest adding the following text at the end of paragraph 7.1392: 
"In this connection, the Panel notes that in pargraph 7.1476 it finds that "the ADP 
MFMs at issue . . . cannot fall within the scope of the concession in subheading 9009 12 of the EC Schedule, regardless of the pr imary, secondary, or equivalent nature of 
the copying function vis-à-vis these machines' other functions" such as printing and 
scanning." 
The complainants believe this will clarify the Panel's findings and avoi d any confusion about 
what the Panel has found about the proper scope of subheading 9009 12 of the EC Schedule.   
6.134  The European Communities  has not commented on the complainants' request. 
6.135  The Panel  does not see any need to add clarification on this point as the Panel indicates in the 
immediately following paragraph that it is turning to the issue of the scope of subheading 9009 12.  
Given that the Panel had not yet made  findings on the scope of subheading 9009 12 at that point in 
the Interim Reports,  there can be no need to "clarify" them at that point.     
6.136  The complainants  request the Panel to edit paragraph 7. 1495 to clarify that the 12 pages per 
minute criterion in subheading 8443 31 is only rele vant for determining whether an MFM with a 
facsimile function is subject to the complainants' request. 
6.137  The European Communities  has not commented on the complainants' request. 
6.138  The Panel  has made the suggested change. 
6.139  The United States  also made specific requests for additio nal citations in particular footnotes 
to reflect the United States argumentation on th e points referred to in those paragraphs.  
6.140  The European Communities  has not commented on the United States' request. 
6.141  The Panel  has inserted the additional citations. 
(b) Comments by the European Communities 
6.142  The European Communities  asks the Panel to delete the first sentence of paragraph 7.1299 
because it argues, the Panel is incorrectly attribu ting to the European Communities the view that a 
determination pursuant to Chapter Note  5(B) should be based on actual use.  WT/DS375/R 
 WT/DS376/R 
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  6.143  The complainants  have not commented on the Eu ropean Communities' request. 
6.144  The Panel  did not intend  the paragraph to serve as a summary of the European Communities' 
arguments, but rather to reflect its own unders tanding of the implications of the European 
Communities' position.  The Panel has changed the fi rst sentence of paragraph 7.1299 to clarify that 
the paragraph reflects the Pane l's understanding of the logical consequence of the European 
Communities' arguments.  To further clarify, the Panel has also removed the term "actual use" from 
the second sentence of paragraph 7.1299.  
6.145  The European Communities  notes that paragraph 7.1386 restat es the Panel's conclusion set 
out in the first sentence of paragraph 7.1363. For "reasons of consistency" the European Communities 
feels it would be appropriate to restate the conc lusion set out in the second sentence of paragraph 
7.1363 in paragraph 7.1386 as well.   
6.146  The United States  does not consider this change neces sary; however, if the Panel opts to 
make the change requested by th e European Communities, the Unite d States requests that it insert a 
footnote at the end of the second sentence referenci ng paragraph 7.1476, as follows.  "However, with 
regard to subheading 9009 12,  see paragraph 7.1476, infra." 
6.147  The Panel  has made both of the suggested changes with minor modifications.  The footnote 
as modified reads: "However, with regard to whet her MFMs fall within the scope of subheading 9009 
12, see paragraph 7.1476, below." 
6.148  The European Communities  asks the Panel to amend paragraph 7.1389 to reflect accurately 
the EC position. In particular the European Comm unities argues that it has never "conceded" that the 
"print module" is the largest component of an MFM and that it has never agreed that the way copying 
is achieved is through the combined use of the printer and scanner modules.   
6.149  Additionally, the European Communities states that it did not argue that  
"the combination of the [printing and scanni ng] functions together, with the addition 
of the copying function, somehow creates a machine that necessarily is not of a kind 
principally used with an ADP machine if the copying function is equivalent or primary over the other functions." 
According to the European Communities, its pos ition is that if the copying function of an 
ADP MFM is equivalent to its ADP functions then it is prima facie  classifiable under both 
headings 8471 60 and 9009 12 with the conseque nce that classification must be determined 
under GIR 3.  With respect to an ADP MFM whose principal function is copying "such 
machine cannot be considered to be of a kind principally used with an ADP machine for the 
purposes of Chapter Note 5(B)."   
6.150  The complainants  have not commented on the Eu ropean Communities' request. 
6.151  The Panel
 has modified the paragraph to more  precisely reflect what the European 
Communities' argued during the course of the proceedings.    
6.152  The European Communities  requests that the Panel amend paragraph 7.1390 to accurately 
reflect its arguments.  In particular, the European Communities recalls that it has repeatedly explained 
that the function of the principal component or the value of the various components in the MFM may not be dispositive for classification purposes when such components are themselves multifunctional.   WT/DS375/R 
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  6.153  The complainants  have not commented on the Eu ropean Communities' request. 
6.154  The Panel  first notes that although the European Co mmunities asserts that it has repeatedly 
explained its position, the European Communities did not provide the Panel with  any citations to its 
arguments on this point during the course of the pr oceedings. The Panel is aware that the European 
Communities did state in paragraphs 438-440 of its first written submission that classification of an 
MFM based on the classification of the component which imparts the product's essential character, 
pursuant to GIR 3(b), is not possible if that component is a print engine, which is itself multifunctional. However, the Panel did not say in  paragraph 7.1390 that the European Communities 
had not explained why the function of the principal component or the value of the various components 
should not be dispositive  for classification purposes, but rather  that the European Communities had 
not explained why pages per minute or the other criteria listed by the ECJ in the Kip judgment were 
more relevant  than those two factors or why the factors listed by the ECJ should be dispositive. 
However, to avoid any perception that the Pa nel has misunderstood the European Communities' 
arguments, we are modifying the paragraph as well as  adding an additional sentence to footnote 1774 
to paragraph 7.1390, which will now read: 
"A focus on the function of the principal component seems more in line with Note 3 
to Section XVI.  We note that the Eur opean Communities has argued that if the 
principal component, in this case the pr int engine, is itself multifunctional then 
classification of the MFM, pursuant to GIR 3(b) based on the classification of the 
component which imparts the products essential character is not possible. (see 
European Communities' first written submis sion, paras. 438-440).  However, the 
Panel is not persuaded by this argument." 
6.155  The European Communities  requests that the Panel amend pa ragraph 7.1451 to clarify that 
the European Communities was not invoking the cl assification practice of Members as "subsequent 
practice" in the sense of Article 31(3)(b) of the Vien na Convention, but that pu rsuant to the Appellate 
Body rulings in EC – Computer Equipment  and EC – Chicken Cuts , classification practice of 
Members may still be relevant under Article 32 of the Vienna Convention.  Additionally, the 
European Communities would like the Panel to clarify that it also referred to the judgment of the ECJ 
in the Rank Xerox  case in its arguments as well as to the classification practice of Chinese Taipei and 
some third countries.   
6.156  The complainants  have not commented on the Eu ropean Communities' request. 
6.157  The European Communities  renews its position that it did not refer to the classification 
practice of individual Members for the purpose of establishing "subsequent practice demonstrating a 
common, consistent and concordant practice of me mbers" with respect to paragraph 7.1454 as well. 
6.158  The complainants  have not commented on the Eu ropean Communities' request. 
6.159
 The Panel  notes that in section VII.G.3(a)(iv) entitl ed "subsequent practice" the Panel dealt 
extensively with the European Communities' argumen ts with respect to the classification practice of 
itself and other Members with respect to the inte rpretation of the ordinary meaning of subheading 
8471 60, the relevant concession in this dispute.  This discussion contained references to the European 
Communities' arguments pertaining to the Rank Xerox  case and to the practice of Chinese Taipei.  The 
Panel notes that the European Communities did not ob ject to our referring to these types of arguments 
relating to the classification of the products at is sue as dealing with "subsequent practice" in our 
interpretation of subheading 8471 60 or anywhere else in the Interim Report.  Given that the European 
Communities referred to the classification practice of Members which was subsequent to the relevant  WT/DS375/R 
 WT/DS376/R 
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  subheadings being inscribed in the HS as suppor t for its understanding of the scope of the 
subheadings, we consider that we appropriately dealt with these arguments under Article 31(3)(b) of 
the Vienna Convention.  The Panel did make minor clarifications to paragraph 7.1451 of the Interim 
Report, to more precisely reflect the European Communities' arguments.    
6.160  The European Communities  argues that, because it referred to the lack of agreement within 
the WCO as indirect evidence of the classification practice of individual Members, the discussion of 
the disagreement in the WCO contained in paragr aph 7.1456 is best considered with the other 
materials on the classification practice of Members,  rather than as an independent supplementary 
means of interpretation.   
6.161  The complainants  have not commented on the Eu ropean Communities' request. 
6.162  The Panel has moved the reference to the citation of discussions in the WCO from paragraph 
7.1456 of the Interim Report as well as the Panel's consideration of this discussion in paragraph 
7.1459, with some minor modifications, to the im mediately preceding section on subsequent practice.  
6.163  The European Communities  argues that the first sentence of paragraph 7.1459 suggests that 
there is a contradiction between the references ma de by the European Comm unities to the discussions 
within the WCO and the "admission" by the Eu ropean Communities that there was significant 
disagreement among Members within the WCO. The European Communities does not propose any 
specific alterations in the language of th e first sentence of paragraph 7.1459.   
6.164  The complainants  have not commented. 
6.165  The Panel  has deleted the phrase "that even the European Communities' admits" from the 
first sentence of paragraph 7.1459 which, as not ed above, has been moved to the immediately 
preceding section on subsequent practice.  
6.166  The European Communities  points out that the cross-reference to paragraph 7.1478 made in 
the first sentence of paragraph 7.1496 appears to be erroneous. Additionally, the European 
Communities requests that the word "certain" be in serted before the term ADP MFMs in the first 
sentence of the same paragraph. 
6.167  The complainants  have not commented on the Eu ropean Communities' request. 
6.168  The Panel  has corrected the cross reference and inserted the word "certain" before ADP 
MFMs.  
5. Other changes to the Interim Reports 
6.169
 The complainants  further identified a variety of typographical errors and editorial 
suggestions in the following paragraphs. The Panel  has reviewed all of these errors and amended the 
text accordingly.30 The Panel has also made a number of stylistic changes that do not affect the 
substance of the Reports. 
                                                      
30 See paragraphs 2.3; 7.42; 7.100; 7.111; 7.120; 7.140; 7.144, fn. 217; 7.150, fn. 235; 7.159, fn. 245; 
7.191; 7.196; 7.228; 7.234; 7.238; 7.239; 7.250; 7.259; 7.265; 7.269, fn. 360; 7.277, fn. 367; 7.288; 7.304; 
7.325; 7.326; 7.335; 7.354; 7.355; 7.357; 7.358, fn. 484; 7.360, fn. 491; 7.361; 7.371; 7.430; 7.431, fn. 571; 7.440; 7.441; 7.453; 7.455; 7.457; 7.465; 7.474; 7.498, fn . 672; 7.502; 7.504; 7.513; 7.521; 7.531; 7.539; 7.548, 
fn. 720; 7.582; 7.584; 7.591; 7.593, fns. 789 and 791; 7. 600; 7.614; 7.619, fn. 816; 7.624; 7.642, fn. 860; 7.644; WT/DS375/R 
WT/DS376/R WT/DS377/R 
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  VII. FINDINGS 
A. S
UMMARY OF THE MAIN ISSUES FOR THE PANEL 'S DETERMINATION  
7.1 The fundamental issue for the Panel's determin ation in these disputes is whether a series of 
EC measures are inconsistent with Articles II:1( a) and (b) of the GATT 1994 because they result in 
less favourable treatment to imports of flat pa nel display devices, set top boxes which have a 
communication function and multifunctional digital m achines ("MFMs") than that provided for these 
products under the European Communities' WTO Schedule (the "EC Schedule"), and because the 
tariff treatment provided is in excess of that provided for these products  under the EC Schedule. 
7.2 The complainants  argue that, pursuant to commitments made in the ITA, the European 
Communities is obligated to provide duty-free treat ment to each of these products. Specifically, the 
complainants allege that certain flat panel disp lay devices are covered by two duty-free concessions in 
the EC Schedule: one that is set forth in a narra tive description (the "FPDs narrative description") in 
an Annex attached to the EC Schedule, and a second arising under tariff item number 8471 60 90 of 
the EC Schedule. The complainants jointly a llege that certain set-top boxes which have a 
communication function are covered by a narrative descr iption (the "STBCs narrative description") in 
the Annex to the EC Schedule, while separately, th e United States alleges that certain set top boxes 
which have a communication function are also cove red by duty-free concessions arising under tariff 
item numbers 8517 50 90, 8517 80 90, 8525 20 99 and 8528 12 91 of the EC Schedule.  Finally, the complainants argue that certain MFMs are covered under either HS1996 subheading 8471 60 or 
heading 8517 21 of the EC Schedule. According to the complainants, despite these duty-free 
concessions, the challenged measures require that par ticular products that satisfy the terms of those 
concessions be classified under dutiable headings. Th e complainants argue that the application of 
duties to those products which they believe shoul d be afforded duty-free treatment results in a 
violation of Articles II:1(a) and (b) of the GATT 1994. 
7.3 In addition to claims under Article II of the GATT 1994, the United States and Chinese 
Taipei, further allege that the European Communitie s has acted inconsistently with Articles X:1 and 
X:2 of the GATT 1994 by failing to publish and en force certain EC measures related to the 
classification of STBCs in accordance with the requirements of those provisions.
31   
7.4 The European Communities  requests the Panel to reject all claims raised by the 
complainants.  The European Communities argues th at the specified measures do not require the 
assessment of duties in a manner inconsistent with an y of the particular concessions identified by the 
complainants in its Schedule of concessions.  The European Communities fu rther rejects that the 
actions cited by the United States and Chinese Taipei are inconsistent with Articles X:1 and X:2 of the 
GATT 1994. 
                                                                                                                                                                     
7.646; 7.664; 7.667; 7.669; 7.675; 7.679; 7.682; 7.694; 7.698; 7.703; 7.705; 7.710; 7.710, fn. 934; 7.711; 7.711, 
fn. 942; 7.715; 7.717; 7.727; 7.735; 7.740; 7.754; 7.755, fn. 974; 7.758; 7.759; 7.761, fn. 979; 7.762; 7.798; 
7.799; 7.807; 7.820; 7.822; 7.823; 7.839; 7.842; 7.843; 7.845, fn. 1069; 7.848; 7.851; 7.855; 7.875; 7.876; 
7.918; 7.921; 7.923; 7.925; 7.933; 7.934; 7.941; 7.949; 7.950; 7.952; 7.964; 7.872 and 7.966; 7.973; 7.975; 7.978; 7.979; 7.1035, fn. 1344; 7.1042, fn. 1361; 7.1044; 7.1059, fn. 1380; 7.1074; 7.1120; 7.1126; 7.1128, fn. 
1475; 7.1134; 7.1158; 7.1200; 7.1213; 7.1243-7.1246; 7.1249, fn. 1619; 7.1266; 7.1270-7.1272; 7.1284; 7.1292; 
7.1301; 7.1314; 7.1325; 7.1326; 7.1377; 7.1394; 7.1398; 7.1402; 7.1429; 7.1430, fn. 1831; 7.1440; 7.1457 and its fn. 1858; 7.1465; 7.1469; 7.1478; 7.1479; 7.1493; 7.1495; 7.1496; 7.1505; 7.1506; 7.1513; 7.1527; 7.1531; 
8.6(d); 8.8(c); 8.11(c); 8.19(c); 8.22 (c); 8.31 (c); 8.34 (c). 
31 Although the three complainants made a joint request for the establishment of this Panel, which 
includes inter alia  joint claims under Article X of the GATT 1994, Japan did not pursue these particular claims 
in its submissions.  WT/DS375/R 
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 WT/DS377/R 
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  B. B
ACKGROUND  
1. The Information Technology Agreement (ITA) 
7.5 Two years following the conclusion of the Uruguay Round negotiations, during the WTO 
Ministerial Conference held in Singapore between 9-13 December 1996, 29 WTO Members32 and 
States or separate customs territories in the process of acceding to the WTO adopted the "Ministerial Declaration on Trade in Information Technology Products" ("the ITA").
33 
7.6 The ITA preamble expresses the desire to " achieve maximum freedom of world trade in 
information technology products" a nd to "encourage the continued technological development of the 
information technology industry on a world-wide basis".  Paragraph 1 of the ITA "declares" that 
"[e]ach party's trade regime should evolve in a ma nner that enhances market access opportunities for 
information technology products". 
7.7 In accordance with paragraph 2 of the ITA, pa rticipants to the ITA ("ITA participants") 
agreed to "bind and eliminate" customs duties and other duties and charges within the meaning of 
Article II:1(b) of the General Agreement on Tariffs and Trade 1994, through equal duty rate reductions, 
on "(a) all products classified (or classifiable) with Harm onized System (1996) ('HS') headings listed in 
Attachment A to the Annex to this Declaration"; and "(b) all products specified in Attachment B to the 
Annex to this Declaration, whether or no t they are included in Attachment A".   
7.8 Further to paragraph 2 of the ITA, the ITA in its Annex (the "ITA Annex"), sets forth 
"Modalities and Product Coverage ".  Specifically, paragraph  1 of the ITA Annex states that: 
"[E]ach participant shall incorporate the measures described in paragraph 2 of the 
[ITA] into its schedule to the General Agreement on Tariffs and Trade 1994, and, in addition, at either its own tariff line leve l or the Harmonized System (1996) ("HS") 
6-digit level in either its official tariff or any other published versions of the tariff 
schedule, whichever is ordinarily used by importers and exporters." 
7.9 Paragraph 2 of the ITA Annex, in its chapeau, in structs ITA participants to incorporate "the 
measures described in paragraph 2 of the [ITA]" in the following manner: 
"[...] each participant shall provide all other participants a document containing 
(a) the details concerning how the appropriate  duty treatment will be provided in its 
WTO schedule of concessions, and (b) a list of  the detailed HS headings involved for 
products specified in Attachment B." 
7.10 Paragraph 2(b) of the ITA Annex specifies the manner in which ITA participants should 
modify their respective Schedules to implement the ITA, as follows: 
                                                     
 
32 Both the European Communities as such (then of 15 member States) and each  of its then member 
States were Participants to the "Ministerial Declar ation on Trade in Information Technology Products". 
33 The ITA included an invitation for other WTO Me mbers and acceding States or separate customs 
territories to join the plurilateral technical discussions that would take place in Geneva at the beginning of 1997.  
Para. 3 of the ITA provides:  
"Ministers express satisfaction ab out the large product coverage outlined in the Attachments to the 
Annex to this Declaration.  They instruct their respective officials to  make good faith efforts to finalize 
plurilateral technical discussions in Geneva on the basis of these modalities, and instruct these officials to complete this work by 31 January 1997, so as to ensu re the implementation of this Declaration by the largest 
number of participants." WT/DS375/R 
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  "The modifications to its Schedule to be proposed by a participant in order to 
implement its binding and elimination of customs duties on information technology 
products shall achieve this result: 
(i) in the case of the HS headings listed in Attachment A, by 
creating , where appropriate , sub-divisions in its Schedule at 
the national tariff line level; and  
(ii) in the case of the products specified in Attachment B, by 
attaching an annex to its Sche dule including all products in 
Attachment B, which is to specify the detailed HS headings 
for those products at either the national tariff line level or the HS 6-digit level. 
Each participant shall promptly modify its national tariff schedule to reflect the 
modifications it has proposed, as soon as they have entered into effect." 
7.11 As reflected above, para graph 2 of the ITA Annex refers to two attachments – Attachment A 
and Attachment B – that set forth product covera ge under the ITA.  A chapeau paragraph preceding 
these Attachments indicates that Attachment A "lists th e HS headings or parts thereof to be covered", 
whereas Attachment B "lists specific products to be c overed by an ITA wherever they are classified in 
the HS".
34  Attachment A  is divided in two sections.   Attachment A, Section 1 includes a table listing 
HS1996 headings (four digits) and subheadings  (six digits) with their corresponding "HS 
descriptions", including the following HS1996 subheading at issue in this dispute: 
 HS96  HS description 
 8471 60 I nput or output units, whether or not containing storage units in the 
same housing 
 7.12 Certain headings and subheadings in Attachment A, Section 1 are "ex-outs", identified with 
the term "ex", which indicates pa rtial coverage of the corresponding HS1996 heading, i.e. only a 
subset of products falling within the description of  the specific heading are bound to the specified 
duty.  Attachment A, Section 2, entitled "Sem iconductor manufacturing and testing equipment and 
parts thereof", includes a second table containing HS1996 subheadings, with corresponding "descriptions" of the covered products.  Certain head ings listed in this section are designated "[f]or 
Attachment B" in the comments column.
35  Attachment B is preceded by a chapeau paragraph, which 
states: 
"Positive list of specific products to be cove red by this agreement wherever they are 
classified in the HS.  
Where parts are specified, they are to be c overed in accordance with HS Notes 2(b) to 
Section XVI and Chapter 90, respectively." 
7.13 Following the chapeau, Attachment B lists 13 pr oducts, including the following descriptions 
at issue in this dispute: 
                                                      
34 Exhibits US-1; TPKM-1. 
35 All the product descriptions with the comme nt "[f]or Attachment B" are "ex-outs".  WT/DS375/R 
 WT/DS376/R 
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  "Flat panel displays  (including LCD, Electro Lumi nescence, Plasma and other 
technologies) for products falling within this agreement, and parts thereof." 
"Set top boxes which have a communication function : a microprocessor-based 
device incorporating a modem for gaining acce ss to the Internet, and having a function 
of interactive information exchange".  
7.14 In addition to modalities and pr oduct coverage, paragr aph 5 of the ITA Annex directs ITA 
participants to consider any divergence among th em in classifying information technology products, 
beginning with the products specified in Attachment  B, in furtherance of the "common objective of 
achieving, where appropriate, a common classification for these products within existing HS 
nomenclature".
36  Further, the ITA contemplates that ITA participants meet "periodically" to "review 
product coverage" and determine whether "Attachments s hould be modified to incorporate additional 
products".37  At the time of implementati on, discussed in paragraphs 7. 16-7.20 below, participants 
agreed to establish a Comm ittee of Participants on the Expansion of Trade in Information Technology 
Products ("CITA").  Among other re sponsibilities, CITA is responsi ble for conducting consultation and 
review concerning the expansion of ITA product coverage as provided  for in paragraph 3 of the ITA 
Annex and the elimination of clas sification divergences provided for in paragraph 5 of the ITA Annex.38   
7.15 ITA participants agreed to review particip ation in the ITA "no later than 1 April 1997".39  
Following the review and approval, the ITA participan ts agreed to modify their respective schedules 
of concessions, including agreement to bind all tariffs on items listed in the Attachments no later than 
1 July 1997 and "phase in" customs duty rate reducti ons beginning in 1 July 1997 and concluding "no 
later than 1 January 2000".40 
                                                      
36 Para. 5 of the ITA Annex provides: 
"Participants shall meet as often as necessary and no later than 30 September 1997 to consider any 
divergence among them in classifying information technology products, beginning with the products specified 
in Attachment B.  Participants agree on the common objective of achiev ing, where appropriate, a common 
classification for these products within existing HS nomen clature, giving consideration to interpretations and 
rulings of the Customs Co-operation Council (also known as the World Customs Organization or 'WCO').  In 
any instance in which a divergence in classification remains, participants will consider whether a joint 
suggestion could be made to the WCO with regard to updating existing HS nomenclature or resolving 
divergence in interpretation of the HS nomenclature." 
37 Para.3 of the ITA Annex provides as follows: 
"Participants shall meet periodically under the auspices  of the Council on Trade in Goods to review the 
product coverage specified in the Att achments, with a view to agreeing, by  consensus, whether in the light of 
technological developments, experience in applying the tariff concessions, or  changes to the HS nomenclature, 
the Attachments should be modified to incorporate additional products, and to consult on non-tariff barriers to 
trade in information technology products.  Such cons ultations shall be without prejudice to rights and 
obligations under the WTO Agreement." 
38 Implementation of the Ministerial Declaration on Trade in Information Technology Products, WTO 
Document G/L/160, para. 8 (2 April 1997) (Exhibit EC-5).  To date, the ITA participants have not agreed to a 
plurilateral basis to expand ITA coverage or eliminate any particular classification divergences. 
39 Para. 4 of the ITA Annex provides that ITA particip ants meet "no later than 1 April 1997 to review 
the state of  acceptances received and to assess the conclu sions to be drawn therefrom".  Implementation was to 
proceed on the condition that "approximately 90 per cent of world trade in information technology products have by then notified their acceptance", and "provided th at the staging has been ag reed to the participants' 
satisfaction".  The WTO Secretariat was tasked with determining the level of  participation on the basis of the 
most recent data available at the time of the meeting.  A 92 per cent level of partic ipation was determined, prior 
to implementation. See para. 7.17 for further information. 
40 Para. 2 of the ITA Annex provides, in part, as follows: WT/DS375/R 
WT/DS376/R WT/DS377/R 
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  2. Implementation of the ITA 
7.16 WTO Members commit to bind duty levels on a va riety of goods.  In other words, Members 
commit not to levy duties in excess of their boun d levels on products originating from other WTO 
Members. Members' tariff bindings are recorded in their Schedules of concessions on goods, which 
are annexed to the GATT 1994 and are an integral pa rt thereof in accordance with Article II:7 of that 
Agreement.  The Appellate Body clarified in EC – Computer Equipment  that concessions provided for 
in Members' Schedules are part of the terms of the treaty, in this case the GATT 1994.
41  Article II:2 
of the WTO Agreement further provides that the Ag reements contained in the Annexes to the WTO 
Agreement, which includes the GATT 1994, are integral parts of the WTO Agreement.42 
7.17 In accordance with paragraph 3 of the ITA, ITA pa rticipants met in January 1997 in an effort 
to complete work on implementation of their ITA commitments within their particular WTO 
Schedules.43  Participants agreed to submit their pro posed schedules of concessions no later than 
1 March 1997, to be reviewed and approved by ITA participants on a consensus basis no later than 
1 April 1997.44  On 26 March 1997, the ITA participants informed the Chairman of the Council for 
Trade in Goods of their decision to im plement the ITA in their WTO Schedules.45  ITA participants 
then agreed to implementation following review a nd approval, on a consensus basis, of 25 Schedules 
of the original ITA participants (including the 15 EC member States separately) and a determination 
                                                                                                                                                                     
"These documents will be reviewed and approved on a consensus basis and this review 
process shall be completed no later than 1 April 1997.  As soon as this review process has 
been completed for any such document, that document shall be submitted as a modification to the Schedule of the participant concerned, in  accordance with the Decision of 26 March 1980 
on Procedures for Modification and Rectification of Schedules of Tariff Concessions (BISD 
27S/25)." Para. 2(a) of the ITA Annex specifies as follows: 
"The concessions to be proposed by each partic ipant as modifications to its Schedule shall 
bind and eliminate all customs duties and other duties and charges of any kind on information technology products as follows: 
(i) elimination of such customs duties shall take place through rate reductions in equal 
steps, except as may be otherwise agreed by th e participants.  Unless otherwise agreed by the 
participants, each participant shall bind all ta riffs on items listed in the Attachments no later 
than 1 July 1997, and shall make the first such rate reduction effective no later than 1 July 
1997, the second such rate reduction no later than 1 January 1998, and the third such rate 
reduction no later than 1 January 1999, and the elimination of customs duties shall be 
completed effective no later than 1 January 2 000.  The participants  agree to encourage 
autonomous elimination of customs duties prior to these dates.  The reduced rate should in 
each stage be rounded off to the first decimal; and 
(ii) elimination of such other duties and charges of  any kind, within the meaning of Article II:1(b) 
of the General Agreement, shall be completed by 1 July  1997, except as may be otherwise specified in the 
participant's document provided to other participants for review." 
41 Appellate Body Report on EC – Computer Equipment , para. 84. 
42 Additionally, Article XVI:4 of the WTO Agreement requires that "[e]ach Member shall ensure the 
conformity of its laws, regulations and administrative proc edures with its obligations as provided in the annexed 
Agreements". Thus, a Member is obliged to ensure th at its domestic legislation is consistent with the 
concessions contained in its Schedule. 
43 Paragraph 3 of the ITA (Exhibits US-1; TPKM-1). 
44 Paragraph 2 of the ITA Annex (Exhibits US-1; TPKM-1).  See also the note by the WTO Secretariat 
on the Informal Meeting of ITA participants of 26 March 1997, document G/L/159/Rev.1 (24 April 1997) 
(Exhibit US-37). 
45 Implementation of the Ministerial Declaration on Trade in Information Technology Products, WTO 
Document G/L/160, para. 2 (2 April 1997) (Exhibit EC-5); Notes by the WTO Secretariat of the informal 
meeting that took place on 25-26 March 1997, WTO docume nt G/L/159/Rev.1 (24 April 1997) (Exhibit US-37).  WT/DS375/R 
 WT/DS376/R 
 WT/DS377/R 
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  by the WTO Secretariat that participants to the ITA represented more than 92 per cent of world trade 
on information technology products.
46  In the review and approval pr ocess, ITA participants agreed to 
amend certain narrative product descriptions in Attachment B, including the product description for 
FPDs at issue in this dispute.47 
7.18 In accordance with paragraph 2 of the ITA Annex and the Decision of 26 March 1980 on 
Procedures for Modification and Rectifica tion of Schedules of Tariff Concessions  (the "1980 
Procedures"), each ITA participant submitted a propo sed modification to its own Schedule for review 
by all WTO Members.48  Each participant's schedule was ce rtified following a three-month review 
period for that particular schedule.49 
7.19 With minor variations, most of the original ITA participants incorporated the ITA-related 
concessions into their WTO Schedules by: (i) cons olidating in a single section of their WTO 
Schedules the HS1996 tariff item numbers listed under both sections  of Attachment A50; (ii) listing 
those product descriptions from Attachment A, Section 2 that were described as "[f]or Attachment B", 
and all product descriptions from Attachment B in  a unified, separate section or annex to their 
schedules51; and (iii) attaching a "staging matrix" to their respective WTO Schedules, indicating the 
duty reductions that would be applicable each year for each of the relevant tariff lines.52  The majority 
                                                      
46 For further explanation, see fn. 39 above. 
47 The EC Schedule (like other ITA participants' sc hedules) incorporates the terms "devices" and 
"vacuum-fluorescence" in the product description for FPDs.  These modifications are discussed in further detail 
below. 
48 Proposed schedules for the European Communities,  India, Indonesia, Israel, Norway and Turkey 
requests were circulated on 2 April 1997.  The circulation of schedules of the remaining ITA participants was 
delayed subject to domestic ratification proceedings. See G/IT/1 (28 July 1997), G/IT/1/Rev.1 
(28 October 1997), and G/IT/M/1 (13 October 1997), paras. 2.1-2.13 (minutes of the first formal meeting of the Committee Participants to ITA). 
49 Modifications to the schedules of the following 14  ITA participants were certified in 1997: Canada 
(WT/Let/ 158); European Communities (WT/Let/ 156); Hong Kong, China (WT/Let/160); Iceland 
(WT/Let/159); India (WT/Let/181); Indonesia (WT/Let/157 ); Israel (WT/Let/174); Japan (WT/Let/138); Macao, 
China (WT/Let/ 177); Malaysia (WT/Let/176); Norway  (WT/Let/153); Singapor e (WT/Let/175); Turkey 
(WT/Let/173); and the United States (WT/Let/182).  Modifications to the following eight additional schedules 
were certified in 1998: Australia (WT/Let/248); Costa Rica (WT/Let/196); Czech Republic (WT/Let/256); 
Korea (WT/Let/249); Romania (WT/Let/260); Slovak Re public (WT/Let/258); Switzerland/Liechtenstein 
(WT/Let/253); and Thailand (WT/Let/250). 
50 In accordance with para. 2(b)(i) of the ITA Annex, some ITA participants included subdivisions, 
based on their domestic tariff nomenclatures, in addition to  the HS1996 six-digit codes listed in Attachment A.  
For example, the European Communities included the eight-digit CN codes 8471 60 40 and 8471 60 90, in 
addition to including the HS1996-based subheading 8471 60.  Not all ITA participants conformed with this 
approach. 
51 In accordance with para. 2(b)(ii) of the ITA An nex, the majority of ITA participants listed 55 
products (including 42 product descriptions from Attach ment A, Section 2 and 13 product descriptions from 
Attachment B).  See paragraph 7.10 above.  Exceptionally, the United States included 8 additional products in an annex to its Schedule, though the United States did not provide in writing a reason for doing so.  These 
aspects are discussed in further detail below. 
52 The term "staging matrix" does not appear either in the ITA or in the ITA related concessions of the 
EC Schedule , and it is used in these Reports for ease of refere nce only.  Most ITA participants included such a 
matrix in accordance with  the "stages" of tariff rate reductions esta blished in para. 2(a)(i) of the ITA Annex 
(also referred to in para. 2 of the ITA and para. 4 of the ITA Annex).  Japan exceptionally did not include a staging matrix in the modifications it proposed to refl ect its ITA-related concessions.  WT/Let/138 (17 April 
1994).    WT/DS375/R 
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  of ITA participants
53 included a "headnote" in advance of listing those product descriptions from 
Attachment A, Section 2 that were described as "[ f]or Attachment B", and product descriptions from 
Attachment B.  As relevant to this dispute, th e headnote in the EC Sche dule (hereinafter the "EC 
headnote" ) provides as follows: 
"With respect to any product described in or for Attachment B to the Annex to the 
Ministerial Declaration on Trade in Information Technology Products (WT/MIN(96)/16), to the extent not specifically provided for in this Schedule, the customs duties on such product, as well as any other duties and charges of any kind 
(within the meaning of Article II:1(b) of the General Agreement on Tariffs and Trade 
1994) shall be bound and eliminated as set fort h in paragraph 2(a) of the Annex to the 
Declaration, wherever the product is classified".
54 
7.20 Due to the informal nature of the plurilateral  technical discussions that took place during the 
negotiation and implementation of the ITA, there is no formal record of ITA participants' discussions 
on how modifications would be incorporated in to Members' WTO Schedules.  Almost all ITA 
participants included an identical or similarly wo rded headnote in their WTO Schedules but there is 
no express requirement in the ITA itself or elsewhere to do so.  The origin of the idea for including a 
headnote as an aspect of the implementation of the ITA is not clear. 
3. The EC Schedule of concessions 
7.21 The European Communities sets forth its tari ff bindings in EC Schedule LXXX following the 
conclusion of the Uruguay Round.55  On 28 February 1996, the European Communities submitted 
Schedule CXL to update its tari ff concessions and other commitments following enlargement of the 
European Communities.56  Approximately one year later, on 1 April 1997, the European Communities 
submitted WTO document G/MA/TAR/RS/16 proposi ng to implement its ITA commitments via 
modifications to its Schedule.57  EC Schedule CXL was not  certified until 19 March 201058; however, 
                                                      
53 Nineteen out of 24 of  the original "ITA Schedules" (excl uding those of WTO acceding States or 
separate customs territories) included a headnote in their WTO Schedules employing nearly identical language.  
The WTO Schedules of Japan and Switzerland/Lichtenstein, in particular, do not contain a headnote like those 
appearing in the WTO Schedules of other ITA participants.  Japan included similar, though not identical, 
language in note 3 of the "Notes to Attachment II to Section II of Part I" to its Schedule (See WT/Let/138, p. 5; (17 April 1994).  Switzerland/Lichtens tein (participating jointly) did not include a headnote at all in their 
Schedules (see WT/Let/253 (20 November 1998)).  Differences among the headnotes appearing in ITA 
participants' Schedules and variations in the Schedules of Japan and Switzerland/Lichtenstein will be discussed 
in further detail below. 
54 WT/Let/156 (Exhibit US-7). 
55 On 15 December 1994, the European Commun ities notified its intention to withdraw tariff 
commitments previously made by Austria in Schedule XXXII, Finland in Schedule XXIV, Sweden in Schedule 
XXX and the European Communities of 12 in Schedule LXXX. See G/L/65/Rev.1, 14 March 1996, 
paragraph 1.  See also GATT doc ument L/7614 (15 December 1994). 
56 See G/L/65/Rev.1, 19 March 1996, paragraph 3.  The European Communities subsequently proposed 
a number of modifications to Schedule CXL which include, but are not limited to G/L/65/Rev.1/Add.2 (21 
October 1997) and Corr.1 (10 February 1998), G/L/65/Rev.1/Add.3 (23 November 1998), G/L/65/Rev.1/Add.4 (1 July 1999) and G/L/65/Rev.1/Add.5 (22 February 2000).  See also a summary by the WTO Secretariat in 
G/MA/W/23/Rev.6 (19 March 2009).   
57 Rectifications and Modifications of Schedules, G/MA/TAR/RS/16 (2 April 1997).  The European 
Communities requested modifications pursuant to the 1980 Procedures , discussed in paragraph 7.20 above. 
58 WT/Let/666 (19 March 2010).  WT/DS375/R 
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  the proposed modifications in G/MA/TAR/RS/16 we re certified by the WTO Director General in 
WTO Document WT/Let/156 and became effective on 2 July 1997.
59   
7.22 The ITA-related commitments implemented in the EC Schedule follow the format used by 
many ITA participants, as discussed in paragra ph 7.19 above.  In particular, the European 
Communities consolidated in a single section all the HS1996 codes appearing in both sections of Attachment A. In many cases, the European Co mmunities introduced further sub-divisions of its 
domestic nomenclature (the "Combined Nomenc lature" or "CN") at the eight-digit level.
60  I n  
addition, the European Communiti es attached an annex to its Schedule (the "Annex to the EC 
Schedule") that includes a  headnote (the "EC headnote") and a consolidated list of product 
descriptions from Attachment A, Section 2, labelle d "[f]or Attachment B", and those descriptions 
from Attachment B  itself. 
7.23 The EC headnote  appears at the beginning of the first pa ge of the Annex to the EC Schedule, 
as follows: 
EC                                                                                                                      26 March 1997  
With respect to any product described in or fo r Attachment B to the Annex to the Ministerial 
Declaration on Trade in Information Technology Products (WT/MIN(96)/16), to the extent not 
specifically provided for in this Schedule, the customs duties on such product, as well as any 
other duties and charges of any kind (within th e meaning of Article II:1(b) of the General 
Agreement on Tariffs and Trade 1994) shall be  bound and eliminated as set forth in 
paragraph 2(a) of the Annex to the Declaration, wherever the product is classified. 
 
 7.24 Following the EC headnote, the Annex to the EC Schedule lists 55 product descriptions. As 
explained in footnote 51 above, these comprise 42 pr oduct descriptions from Attachment A, Section 2  
that are described with the comment "[f]or Atta chment B" and 13 products descriptions listed in 
Attachment B. The product descriptions appear in a left-hand column, labelled "Description". A 
right-hand column, labelled "HS", includes tariff ite m numbers at the eight-digit level next to each 
product description. The following is an excerpt showi ng the first two entries in the Annex to the EC 
Schedule: 
Description  HS 
Quartz reactor tubes and holders designed for insertion into diffusion 
and oxidation furnaces for productio n of  semiconductor wafers  
70200005 
 
Chemical vapour deposition appa ratus for semiconductor production 
 84198920  
 
7.25 Of the 55 product descriptions in the Annex to the EC Schedule , 30 have only one code listed 
next to them, while 25 have two or more codes listed next to them.  All the codes that appear in the 
Annex to the EC Schedule also appear in the separ ate, consolidated section of the EC Schedule that 
lists the HS1996 codes from Sections 1 and 2 of Attachment A .  All these codes also appear in the 
                                                      
59 Document WT/Let/156 (15 August 1997) (Exhibit US-7). 
60 The CN was established by Council Regulation (EEC) No. 2658/87 of 23 July 1987 on the tariff and 
statistical nomenclature and on the Common Customs Tariff (OJ L 256/1, 7 September 1987, as amended) ("Council Regulation No. 2658/87") (Exhibits EC-49; US-13; TPKM-5).  The first six digits of the CN are 
based on the HS.  Any digits beyond the HS six-digit level are CN-specific. WT/DS375/R 
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  "staging matrix" that appears in the EC Schedule.
61  The following is an excerpt showing the first 
entry in the Staging Matrix to the EC Schedule : 
EC 26 March 1997
ex  HS Base rate July 1997 1998 1999 2000 2001 2002 2003 2004 2005 
  38180010 6.9 5.2 3.5 1.7 0.0      
      
7.26 The European Communities has ma de several modifications to its ITA-related concessions 
since the modifications in document WT/Let/156 beca me effective on 2 July 1997. For example, on 
4 February 1998, the European Commun ities replaced all references to codes 8471 30 00, 8471 41 90, 
8471 49 90, 8471 50, 8528 12 10, 8528 13 10 and 8543 89 17 with codes 8 471 30 91, 8471 41 91, 
8471 49 91, 8471 50 91, 8471 30 10, 8471 41 30, 8471 49 30, 8471 50 30, 8471 30 99, 8471 41 99, 
8471 49 99 and 8471 50 99. The European Communities explained in WTO Document 
G/MA/TAR/RS/47, that "[t]he World Customs Or ganisation has debated the classification of 
multimedia personal computers and th e general view, which prevailed, was that such products no matter 
what their principal function ar e to be classified within 8471" . WTO document G/MA/TAR/RS/47 
indicates further that "[t]he European Communities has implemented this classification opinion by 
transferring the products concerned, together w ith their accompanying rates of duty, from 8528 and 
8543 to 8471".62 Each of the new headings was specified with a final duty rate of zero.  References to 
the new codes were included in the Annex to the EC Schedule  next to the product descriptions for 
"Computers, etc." and "Network equipment".63 These modifications were certified by the WTO 
Director General in WTO Document WT/Let/261 and became effective on 10 May 1998.64 
7.27 On 22 February 2000, the European Communities circulated an amendment to its then-
proposed Schedule CXL, explaining that ITA-rela ted modifications in document G/MA/TAR/RS/16 
and G/MA/TAR/RS/47 (that were certified in doc uments WT/Let/156 and WT/Let/261, as discussed 
in paragraphs 7.21 and 7.26 above , respectively) had "overtaken" those commitments proposed in 
Schedule CXL.65   
7.28 On 29 November 2000, the European Communities notified that it would add a reference to a 
new code (tariff item number 8528 12 91) next to the product description for "set-top boxes which 
have a communication function" as it appears in the Annex to the EC Schedule.66 The European 
Communities explained in WTO document G/MA/TAR/RS/74 that "the European Communities have decided to join some other ITA participants in cl assifying certain types of ITA set-top boxes under HS 
Sub-heading 8528 12".   
7.29 When EC Schedule CXL was certified on 19  March 2010 in WTO document WT/Let/666
67, 
the WTO Director General expressly noted that certification of EC Schedule CXL was "without 
                                                      
61 For further explanation of this matter, see para. 7.19 above. 
62 G/MA/TAR/RS/47 (10 February 1998), p. 3. 
63 The European Communities proposed to modify the references as follows (See G/MA/TAR/RS/47 
(10 February 1998), p. 5): 
"Computers etc. Replace by following reference:   8471.10.90 (unchang ed), 8471 30 10,  
 8471.30.91, 8471.30.99, 8471.41.30, 8471.41.91, 8471.41.99, 8471.49.30, 
8471.49.91, 8471.49.99, 8471.50.30, 8471.50.91, 8471.50.99 Network equipment replace 84 71.50.90 by 8471.50.99". 
64 WT/Let/261 (25 November 1998). 
65 G/L/65/Rev.1/Add.5, para. 2 (22 February 2000). 
66 G/MA/TAR/RS/74 (15 December 2000) (Exhibit US-26). 
67 WT/Let/666 (19 March 2010). See also para. 7.21 above.  WT/DS375/R 
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  prejudice" to ITA-related concessions that were previously certified in documents WT/Let/156 and 
WT/Let/261.
68  At this time, the WTO Director-Gener al additionally certified the amendment 
pertaining to set-top boxes proposed in G/MA/TAR /RS/74 (discussed in paragraph 7.28) in WTO 
document WT/Let/667.69   
7.30 The parties to this dispute agree that th e concessions contained in WTO documents 
WT/Let/156, WT/Let/261 and G/MA/TAR/RS/74 (now  certified as document WT/Let/667) comprise 
those relevant to this dispute.70   
4. The Harmonized System (HS)  
(a) The Harmonized System 
7.31 The "Harmonized Commodity Description and Coding System" (the "HS") was established 
under the "International Convention on the Harmoni zed Commodity Description and Coding System" 
("HS Convention")71, and entered into force on 1 January 1988.72 
7.32 The preamble of the HS Convention sets out th e objectives of the HS including "to facilitate 
international trade", "to facilitate the collection, co mparison and analysis of statistics", "to reduce the 
expense incurred by re-describing, reclassifyi ng and recoding goods as they move from one 
classification system to another in the course of  international trade", and "to facilitate the 
standardisation of trade documentation and the transmission of data".73 The HS Convention aims to 
achieve these objectives through the HS, which est ablishes an international standard for product 
nomenclature for more than 5,000 commodity groups , and includes approximately 1,200 headings that 
are grouped into 21 sections comprising 99 chapters.74  Product groups are organized systematically 
and each group is identified by a "heading", represen ted as a four-digit code. The first two digits 
indicate the chapter to which they correspond, while  the two subsequent digits indicate the position 
within the heading of a particular chapter. HS  headings are sometimes further divided into 
                                                      
68 G/L/65/Rev.1/Add.5, para. 2 (22 February 2000). 
69 WT/Let/667 (19 March 2010).   
70 In their responses to Panel question No. 8, the par ties agreed that the ITA-related concessions by the 
European Communities are those contained in documents WT/Let/156, WT/Let/261 and G/MA/TAR/RS/74. 
71 The HS Convention is available in Exhibits EC-15; US-8; TPKM-6. 
72 Exhibits EC-15; US-8; TPKM-6.  The HS has its origin in the "Geneva Nomenclature", which came 
into existence on 1 July 1937 in the form of the 1937 Draft Customs Nomenclature of the League of Nations .  
The Geneva Nomenclature was subse quently replaced in 1959 by the Brussels Convention on Nomenclature for 
the Classification of Goods in Customs Tariffs  ("Brussels Tariff Nomenclature").  The Brussels Tariff 
Nomenclature came into force on 11 September 1959, following the adoption on 1 July 1955 of a Protocol of Amendment establishing a revised version of the Nomencla ture.  The Brussels Tariff Nomenclature was in turn 
renamed the Customs Co-operation Council Nomenclature  in 1974 (the "CCCN").  The Customs Co-operation 
Council Nomenclature  was replaced by the HS on 1 January 1988, wh en the HS Convention en tered into effect.  
See also the Panel Report on EC – Chicken Cuts , para. 7.186.   
73 Second, Third and Fourth tiret s of the Preamble of the HS C onvention (Exhibits EC-15; US-8; 
TPKM-6). 
74 The HS is set out as an Annex to the HS Convention and is an integral part thereof (see Article 1(a) 
and Article 2 of the HS Convention) (Exhibits EC-15; US-8; TPKM-6).  Strictly speaking, the HS has 97 
chapters.  Our indication of the HS as having only 96 ch apters is because chapter 77 is "reserved for possible 
future use in the Harmonized System", and chapters 98 and 99 are "reserved for special uses by Contracting 
parties".  These chapters are therefore empty.   WT/DS375/R 
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  subheadings, which are identified by a six-digit c ode, which is the maximum level of disaggregation 
permitted by the HS.  The last two digits then indicate the relevant HS subheading.
75   
7.33 The HS Convention requires contracting parties to  the HS to ensure th at their laws are in 
conformity with the HS. Article 3.1(a)(i) of th e HS Convention provides in particular that HS 
contracting parties shall use, in respect of their cu stoms tariff and statistical nomenclatures, all the HS 
headings and subheadings "without addition or modi fication, together with their related numerical 
codes". Article 3.3 of the HS Convention permits HS contracting parties to create sub-divisions 
classifying goods beyond  the six-digit level (for example, at the eight-digit level or more), provided 
that any such subdivision is added and coded at a level beyond  that of the six-digit numerical code as 
it appears in the HS. The European Communities' dom estic nomenclature (i.e., the CN) is an example 
thereof.76   
(b) The HS General Rules for Interpretation ("GIRs") 
7.34 Pursuant to Article 3.1(a)(ii) of the HS Conve ntion, each contracting party also undertakes to 
apply the "General Rules for the Interpretation of the Harmonized System and all the Section, Chapter 
and Subheading Notes, and that it shall not modify the scope of the Sections, Chapters, headings or 
subheadings of the HS".77  The Annex to the HS Convention sets out six general rules for the 
interpretation and uniform application of the HS ("GIRs ").  The first five rules relate to the four-digit 
headings, while rule six relates to the classification in the five- or six-digit subheading.  The GIRs 
must be applied in an hierarchical order.  In ot her words, a contracting party should begin with the 
first GIR and proceed to subsequent GIRs only if necessary.78   
(c) HS Explanatory Notes (HSEN) and opinions by the WCO Council 
7.35 Article 3(1)(a)(i) of the HS Convention stipulates that HS contracting parties must use all the 
headings and subheadings of the HS without additi on or modification, together with their related 
numerical codes and that each contracting party must follow the numerical order of the HS.  Article 6 
of the HS Convention establishes the HS Committee composed of representatives from each of the 
Contracting Parties that meets at least twice annuall y.  Under Article 7(1)(b) of the HS Convention, 
the HS Committee prepares HS Explanatory Notes (HSEN), classification opinions and other advice 
as guidance  to secure uniformity in the interpretation of the HS.  The HSEN provide guidance for 
interpreting the terms of a specific HS heading.   Classification opinions are opinions of the HS 
Committee regarding the customs clas sification of a specific product. 
                                                      
75 See Appellate Body Report on EC – Chicken Cuts , para. 230 (quoting a response by the WCO 
Secretariat). 
76 See Article 3 of Council Regulation No. 2658/87 (Exhibits EC-49; US-13 and TPKM-5); see also 
paragraphs 7.39-7.40 below.  The HS was approved on behalf of the European Communities by Council 
Decision 87/369/EEC of 7 April 1987 (OJ 1987 L 198/1), (Exhibits EC-15; US-8; TPKM-6).  The CN not only 
reproduces the headings and subheadings of the HS up to the six-digit level, but also contains codes at seven and eight-digit levels.  See also fn. 60 above. 
77 See also Article 1(a) of the HS Conv ention (Exhibits EC-15; US-8; TPKM-6). 
78 GIR 1 explains that classification should be based, first, on the terms of the headings, relevant 
Section or Chapter Notes pursuant to GIR 1 and provided such headings or Notes do not otherwise require, 
according to the provisions of GIRs 2-6.  Moreover , according to the Explanat ory Notes to GIR 1 "the 
expression 'provided such headings or Notes do not otherwise require' is intended to make it quite clear that the terms of the headings and any rela tive Section or Chapter Notes are paramount, i.e., they are the first 
consideration in determining classification."  WT/DS375/R 
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  (d) Amendments to the HS 
7.36 The preamble of the HS Convention recognizes as  an important objective that of "ensuring 
that the HS is kept up-to-date in the light of cha nges in technology or in patterns of international 
trade".
79 In this respect, Article 7.1(a) of the HS Convention provides that one of the functions of the 
HS Committee is "to propose such amendments to th is Convention as may be considered desirable, 
having regard, in particular, to the needs of u sers and changes in technology or in patterns of 
international trade".  Since its entry into force on  1 January 1988, the HS has been partially amended 
every four to six years. Such amendments have come into force on 1 January 1992 (HS1992), 
1 January 1996 (HS1996), 1 January 2002 (HS2002) and 1 January 2007 (HS2007).80     
7.37 Amendments to the HS must be approved by  the HS Committee and subsequently by the 
Council, the highest governing body of the World Customs Organization (WCO)81. Each of these 
amendments included several changes to product codes or descriptions. When a recommendation to 
amend the HS is approved, HS contracting parti es are obliged to implemen t these changes in their 
national tariff nomenclature.82 Modifications have been partial in nature, leaving various HS headings 
and subheadings unchanged from one  version to the next.   
5. Tariff classification in the European Communities  
7.38 The following summary is intended only to aid the general understanding of the tariff 
classification system of the European Communities. Aspects of this system will be discussed in 
greater detail in sections where such discussion has relevance. 
(a) The Combined Nomenclature 
7.39 The European Communities applies a common cust oms tariff vis-à-vis third countries. Article 
20(3) of the Community Customs Code ("CCC")83 clarifies that the Customs Tariff of the European 
Communities comprises, inter alia , a "Combined Nomenclature" of  goods (CN) and conventional 
duties.84  The Common Customs Tariff provides for the applicable duties.85   
                                                      
79 Preamble of the HS Conven tion, thirteenth recital. 
80 For an explanation by the WCO Secretariat of th e list of the amendments, see: TAR/W/91 (HS1996), 
G/MA/W/26 (HS2002), G/MA/W/76 (HS2007). 
81 The Preamble of the HS Convention indicates that it  has been "established under the auspices of the 
Customs Co-operation Council".  Paragraph 1(f) of the HS Convention indicates that "the Council" refers to the 
Customs Co-operation Council.  The Council is headed by th e Secretary General of the Council.  See Para. 1(g) 
of the HS Convention.  Article 8.1 of the HS Convention provides that "the Council shall examine proposals for amendment of this Convention, prepared by the Harm onized System Committee, an d recommend them to the 
Contracting Parties under the procedure of Article 16 unless any Council Member which is a Contracting Party 
to this Convention requests that the proposals or any part thereof be referred to the Committee for re-examination". 
82 See para. 7.35 above.   
83 Council Regulation (EEC) No. 2913/92 of 12 October 1992 establishing the Community Customs 
Code (OJ L 302/1, 19 October 1992), as ame nded (the "CCC") (Exhibits US-19; TPKM-16). 
84 Annex I of Council Regulation No. 2658/87, Part One, Preliminary provisions, Section I – General 
Rules, "B. General rules concerning duties", explains in  its general rules that conventional duties are "[t]he 
customs duties applicable to imported goods originating in countries which are Contracting Parties to the 
General Agreement on Tariffs and Trade or with which the European Community has concluded agreements 
containing the most-favoured-nation tariff clause".  The Annex states further that "[u]nless the context requires otherwise, these conventional duties are applicable to goods, other than those referred to above, imported from 
any third country" (Exhibits EC-49; US-13; TPKM-5). WT/DS375/R 
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  7.40 The CN, which is set forth in Annex I to Council Regulation No. 2658/87, is established by 
the European Commission (the "Commission") and comprises: (i) the HS nomenclature; 
(ii) Community subdivisions to that nomenclature, referred to as "CN subheadings" and 
(iii) preliminary provisions, additional section or chapter notes and footnotes relating to CN 
headings".
86 These additional section and chapter notes a nd footnotes are intended to further define 
the scope of the CN. Products are groupe d in chapters, divided over sections.87 Both section and 
chapter notes assist in determining the customs classification of goods.88  When notes are intended to 
be relevant for the entire section, they are set out as section notes. When they relate only to a specific 
chapter, it is a chapter note. The section notes and ch apter notes, if any, can be found at the beginning 
of each section and chapter, respectively. Annex I to Council Regulation No. 2658/87 is divided into 
three parts, entitled: "Part one – Preliminary provisio ns"; "Part two – Schedule of customs duties" and 
"Part three – Tariff annexes".   
7.41 "Part one — Preliminary provisions", contains  two sections. Section I, entitled "General 
rules", includes inter alia , the General Rules for the Interpreta tion of the CN (CN GIRs), which are 
identical to those of the HS.89  Section II, entitled "Special provisions", deals with specific issues 
relating to goods for certain categories of ships,  boats and other vessels and for drilling or production 
platforms; civil aircraft and goods for use in ci vil aircraft; pharmaceutical  products; containers and 
packing materials; or signs, abbreviations and symbols. 
7.42 "Part two — Schedule of customs duties",  contains the CN codes and conventional duties.  
Each CN code is an eight-digit nu mber, reproducing the headings and subheadings of the HS up to the 
six-digit level, with the seventh and eighth digits being CN-specific.90  As a national nomenclature of 
a contracting party to the HS, the CN has th e same Sections and chapters as the HS.91  The CN also 
reproduces all the HS Section, Chapter, and Subheading Notes without modifying their scope, with additional notes particular to the CN.
92  Each CN chapter comprises a table with four columns, 
labelled from left to right as "CN code"; "Descri ption"; "Conventional rate of duty (%)", and 
"Supplementary unit". 
7.43 "Part three — tariff annexes" contains agricultu ral annexes, lists of pharmaceutical substances 
which qualify for duty-free treatment, information on quotas, and information on "favourable tariff 
treatment by reason of the nature of the goods". 
                                                                                                                                                                     
85 Article 20(1) of the CCC. 
86 Article 1 of Council Regulation No. 2658/ 87 (Exhibits EC-49; US-13; TPKM-5). 
87 As discussed in fn. 74 above in relation to the HS, the CN includes 99 chapters. Only 97 are used, 
however.  In particular, CN chapters 77 and 99 are reserv ed for possible future uses.  Unlike in the case of the 
HS, the CN includes a 98th chapter that covers "complete industrial plants". 
88 CN GIR Rule 1 provides that customs classification shall be determined according to the terms of the 
headings and any relative section or chapter notes; see paragraph 7.41. 
89 See para. 7.34 above.  According to Article 3 of the HS Convention, the European Communities 
must apply the HS GIRs.  In the case of  the CN GIRs, the first five rules re late to the six-digit headings while 
rule 6 relates to the CN breakouts, i.e. the eight-digit subheading.  The GIRs are part of the CN (they are 
included in its "Part one – Preliminary provisions") and accordingly, are binding. 
90 Article 3 of Council Regulation No. 2658/87 (Exhibits EC-49; US-13; TPKM-5).  See also para. 7.33 
above. 
91 See also fn. 87 above.   
92 As indicated in para. 7.33 above, HS contracti ng parties are required to use all the headings and 
subheadings of the HS without addition or modification, together with their related numerical codes, and each 
contracting party must follow the numerical order of the HS.  WT/DS375/R 
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  7.44 In accordance with Article 2 of Council Regulation No. 2658/87, as amended, the 
Commission has also established the integrated tariff of the European Communities, known as the 
"Taric".
93  The Taric is based on the CN, with further s ubdivisions at the ninth- and tenth-digit levels, 
referred as the "Taric subheadings". These a dditional tariff subheadings are utilized for the 
implementation of specific policies, such as, for example, tariff suspensions; tariff quotas; tariff 
preferences (including tariff quotas and ceilings); the generalized system of tariff preferences 
applicable to developing countries; anti-dum ping and countervailing duties; countervailing 
charges; agricultural components and others.  Th e Taric is part of the Common Customs Tariff.94 
7.45 Pursuant to Article 12 of Council Regulation No. 2658/87, as amended, the Commission must 
publish each year, before 31 October, a consolid ated version of the CN, incorporating the 
amendments of the past year. The consolidated  version of the CN – as a Commission Regulation 
amending Annex I to Regulation No. 2658/87 – is pub lished in the Official Journal of the European 
Union (the "EU Official Journal").95  It applies as of 1 January of the year following its official 
publication.  To avoid confusion, the year of application is indicated. The CN2007, for example, 
indicates that this was the CN version applicable in  2007. The CN currently applicable as of the date 
of the issuance of these Reports is the CN2010. 
(b) The Customs Code Committee and the EC Comitology procedure 
7.46 According to Council Regulation No. 2658/87, as amended, the Commission establishes and 
manages the CN and Taric.96  Article 9 of Council Regulation No. 2658/87, as amended, authorizes 
the Commission to adopt measures relating to th e application of the CN, such as classification 
regulations (these are Commission Regulations) and explanatory notes to the CN ("CNEN"), in accordance with the procedure set out in Article 10 of that Regulation. Article 10 states that the 
Commission may adopt such measures with the assi stance of the "Customs Code Committee" as per 
the "management procedure" in Article 4 of Council Decision 1999/468/EC (the "Comitology 
Decision").
97   
7.47 The Customs Code Committee consists of a representative of the Commission service (as 
chairperson) and representatives of the governme nts of each EC member State.  Under the 
"management procedure", the Commission service submits draft implementing measures related to classification to the "Comitology committee", which delivers an opinion in favour or against (or 
reaches "no opinion") on these draft measures by means of a vote by EC member State representatives 
prior to adoption by the Commission.
98  The Comitology committee opini on is handled through voting 
by member States representatives.  Article 4(2) of the Comitology Decision explains that the opinion 
                                                      
93 The acronym "TARIC" corresponds to its title in  the French Language: "Tarif Intégré de la 
Communauté" (See also Exhibit US-12, containing the Commission's information on Taric). 
94 See Exhibit US-12, p. 5. 
95 The CN2009 version, for example, was established by Commission Regulation (EC) No. 1031/2008 
of 19 September 2008, amending Annex I to Council Regulation No. 2658/87, OJ L 291/1, 31 October 2008 
(Exhibits US-11; TPKM-21). 
96 See Council Regulation No. 2658/87, Articles 1, 2 and 6 (Exhibit EC-49; US-13; TPKM-5). 
97 Exhibits EC-51 and TPKM-18.  Article 10 of Council Regulation No. 2658/87 cross-refers to Article 
7 of the Comitology Decision, which provides that each Committee shall adopt its own rules of procedure.  The 
Rules of Procedure of the Customs Code Committee were submitted in Exhibit EC-52. 
98 European Communities' first written submission, paras. 292-293; Article 4.2 and 4.3 of the 
Comitology Decision (Exhibit EC-51; TPKM-18). WT/DS375/R 
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  "shall be delivered by a qualified majority of  members, excluding a vote by the chairperson".
99  A 
vote can result in three possible outco mes: (i) a qualified majority vote in favour  of the proposal, i.e., 
a favourable opinion is reached; (ii) a qualified majority vote against  the proposal, i.e., a non-
favourable opinion is reached; or (iii) there is a lack of a qualified majority  either in favour or against 
the proposal, i.e., a no-opinion result.  Where either a favourable opinion or no opinion is reached, the Commission may adopt a proposed measure.
100  But, if a non-favourable opinion is rendered, the 
Commission must defer to the European Council, which can itself reach a different decision by a 
qualified majority, within three months.101  If the European Council takes no decision within this time 
limit, the Commission adopts the proposed measure.102   
7.48 In addition to the CNEN and Classification Regulations, Article 8 of Council Regulation 
No. 2658/87, as amended, also provides that "customs  items" can be submitted by the Chairman of the 
Customs Code Committee for examination, either on his or her own initiative or at the request of a representative of an EC member State.  Under this "Article 8 procedure", the Customs Code 
Committee functions as a "discussion forum" betw een the Commission and the EC member States, 
and not as the "Comitology Committee".
103  The result of such discussion is reflected in the minutes 
of the meeting as an "Article 8" topic. 
7.49 Prior to each Customs Code Committee meeti ng, the agenda of items on which the 
Comitology Committee is requested to give its opinion is circulated.104  After each meeting, the 
minutes of the meeting are drawn up and circulated amongst the EC member States' representatives.105 
(c) Interpretation of the CN  
7.50 In addition to the GIRs, the HS Section and Chapter Notes and CN additional notes discussed 
in paragraphs 7.40 and 7.41 above, the Commission h as at its disposal a vari ety of tools to ensure 
uniform classification practice throughout the Community.  These tools include (i) HSEN and 
Opinions; (ii) EC classification regulations; (iii)  CNEN; (iv) Opinions of the Customs Code 
Committee in the framework of Article 8 of Counc il Regulation No. 2658/87; and (v) Binding Tariff 
Information decisions ("BTIs").  These instru ments are described in more detail below. 
(i) HS Explanatory Notes (HSEN) and Opinions by the HS Committee 
7.51 HSEN and Opinions by the WCO Council may al so inform interpretation of the CN at the 
six-digit level.  These are discussed in paragraph 7.35 above.   
                                                      
99 Following the most recent enla rgement of the European Unio n on 1 January 2007, a qualified 
majority constitutes 255 votes out of a total of 345 vot es. (see European Communities' first written submission, 
para. 292, fn. 191). 
100 European Communities' first written submission, paras. 292-293; Article 4.3 of the Comitology 
Decision (Exhibits EC-51; TPKM-18). 
101 European Communities' first written submission, paras. 292-293; Article 4.3 of the Comitology 
Decision (Exhibits EC-51; TPKM-18).  In the case the EC Council becomes involved, the Commission may defer the application of the measure for a period of up to three months.   
102 Article 4.3 and 4.4 of the Comitology Decision (Exhibits EC-51; TPKM-18). 
103 See para. 7.47 above. 
104 Article 3 of the Rules of Procedure of the Customs Code Committee (Exhibit EC-52). 
105 Article 12.1 of the Rules of Procedure of  the Customs Code Committee (Exhibit EC-52).  WT/DS375/R 
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  (ii) Classification Regulations 
7.52 Pursuant to Article 9(1)(a) of Council Re gulation No. 2658/87, as amended, the Commission 
may adopt regulations on the classification of goods .  Such classification regulations are adopted by 
the Commission in accordance with the "management procedure" discussed in paragraph 7.47 above.  
The Commission may in practice first submit its proposed measure as an "item submitted to the Customs Code Committee for examination under Ar ticle 8 of Regulation No. 2658/87", which may 
lead to amendments to the original proposal.  Once the Commission considers that its proposal is 
finalized, it may again submit it to the Customs Code Committee for an opinion.   
7.53 Classification regulations that are published in th e EU Official Journal are binding throughout 
the European Communities.
106  In general, the preamble of a classification regulation explains that the 
regulation is necessary "in order to ensure uniform  application of the Combined Nomenclature 
annexed to the said Regulation".107  In their main text, classification regulations contain a detailed 
description of one or several goods, provide for the a pplicable CN code, and give the reasons for such 
classification.108  However, classification regulations do not "amend" the CN.109 
(iii) Explanatory Notes to the Comb ined Nomenclature (CNEN) 
7.54 The Commission may also issue CNEN in accordance with Article 9(1)(a) of Council 
Regulation No. 2658/87, as amended, for interpreta tion of the CN.  The Court of Justice of the 
European Union ("European Court of Justice") has concluded that CNEN are not "legally binding", 
but provide "an important aid in  the interpretation of the CN".110  As with classification regulations, 
CNEN are adopted by the Commission in accordan ce with the "management procedure" of the 
Comitology Committee discussed in paragraph 7.47 above.  However, CNEN are distinct from the CN Section and Chapter notes.
111 
(iv) Statements of the Customs Code Committee in  the framework of Ar ticle 8 of Regulation 
No. 2658/87 
7.55 The Statements of the Customs Code Committee in the framework of Article 8 of Regulation 
No. 2658/87, which are discussed in paragraph 7.48 a bove, may also be considered when interpreting 
the CN.  Article 8 states that the Customs Code Committee may examine any matter referred to it by 
its Chairman, either on his or her own initiative or at the request of a representative of a EC member 
State (a) concerning the CN; (b) concerning the Ta ric nomenclature and any other nomenclature 
which is wholly or partly based on the CN or wh ich adds any subdivisions to it, and which is 
established by specific Community provisions with a view to the application of tariff or other 
measures relating to trade in goods.  In practi ce, the Customs Code Committee thus examines 
                                                      
106 See Article 288(2) of the Treaty on the functioning of the European Union, formerly, Article 249(2) 
of the EC Treaty. 
107 See, e.g., Commission Regulation (EC) No. 517/1999 of 9 March 1999 concerning the classification 
of certain goods in the Combined Nomenclature, OJ L 61/23, 10 March 1999 (Exhibits US-59; TPKM-35). 
108 Classification regulations may also contain illustratio ns of the products (see, e.g., Exhibits US-59; 
TPKM-35). 
109 European Court of Justice (GoldStar Europe), para. 19 (Exhibit TPKM-9); European Court of 
Justice (Gebr. Vismans Nederland BV), para. 13 (Exhibit TPKM-10).  See also the Panel Report on EC - Selected Customs Matters , para. 2.37. 
110 See, e.g., European Court of Justice (DFDS BV), para. 28  (Exhibits US-16; TPKM-37); European 
Court of Justice (Clees), para. 12 (Exhibits EC-57; US-17).  See also the Panel Report on EC - Selected Customs 
Matters , para. 2.39 and the Panel Report on EC -  Chicken Cuts , para. 7.412. 
111 See para. 7.40 above. WT/DS375/R 
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  questions concerning the interpretation of Commun ity Customs law such as, for example, tariff 
classification issues.  The Customs Code Committe e operates as a specific forum for cooperation 
between the EC member States and the Commission.  The Customs Code Committee's opinions on 
questions relative to the application and interpreta tion of the CN are not legally binding.  However, 
the European Court of Justice has held that such opinions constitute an important means of ensuring 
the uniform application of the common customs tariff  by the authorities of the member States and as 
such can be considered as a valid ai d to the interpretation of the tariff.
112  
7.56 Through an online "Comitology register"113, one can access the agendas of the Customs Code 
Committee meetings; certain draft implementing measures; summary records of meetings and 
summaries of voting results.  Other documents ar e considered confidential and access must be 
requested.  Access, however, can be denied on certain grounds.114 
(v) Binding Tariff Information (BTI) 
7.57 The European Communities also h as an advance ruling system in tariff classification matters, 
known as the Binding Tariff Information ("BTI").  BTIs are issued by the customs authorities of the 
EC member States upon request by importers, in wr iting and free of charge, except for special costs 
incurred by the customs authorities for certain proce dures, such as necessary laboratory analysis of the 
products.115  The customs authority specifies the customs cl assification code of the product in a BTI.  
BTIs are valid throughout the European Communitie s, regardless of their location of issuance116, and 
are generally valid for a period of six years.117  Article 12(5)(a) of the CCC explains, however, that 
BTI shall cease to be valid: (i) where a regulation is adopted and the BTI no longer conforms to this 
regulation118; or (ii) where a BTI is no longer compatible  with the interpretation of the CN by reason 
of amendments to the CNEN.  In both cases, BTIs  can still remain valid for a three-month grace 
period.119 
7.58 Issued BTIs are maintained in  a database (the EBTI database) that is managed by the 
Commission, in particular, the Directorate General for Taxation and Customs Union (DG 
TAXUD).120  The Commission has issued "administrativ e guidelines" on the EBTI and its operation in 
order to contribute to the harmonization of natio nal practices in the area of Binding Tariff 
Information.121  The content of the EBTI database largel y depends on the information transmitted by 
                                                      
112 Panel Report on EC – Selected Customs Matters , para. 2.40 (citing European Court of Justice 
(Dittmeyer), para. 4). 
113 See http://ec.europa.e u/transparency/regco mitology/index.cfm. 
114 See Article 15 of the Rules of procedure of the Customs Code Committee: "The principles and 
conditions concerning public access to the committee's documents shall be the same as those defined in 
Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001. It is for the Commission to take a decision on requests fo r access to these documents" (Exhibit EC-52). 
115 Article 11.2 of the CCC (Exhibits US-19; TPKM-16). 
116 Article 11 of Commission Regulation (EEC) No. 2454/93 of 2 July 1993 laying down provisions for 
the implementation of Council Regulation (EEC) No. 2913/92 of 12 October 1992 establishing the CCC, (OJ L 
253/1, 11 October 1993) (Exhibit US-21). 
117 Article 12(4) of the CCC (Exhibits US-19; TPKM-16). 
118 This could, e.g., be the case with a classifica tion regulation classifying a similar product in a 
different tariff heading. 
119 Classification Regulations, e.g., normally state that a BTI "issued by the customs authorities of 
Member states, which is not in accordance with this Regula tion, can continue to be invoked for a period of three 
months under Article 12(6) of Regulation (EEC) No. 2913/92."  (Exhibit TPKM-35). 
120 See the BTI Guidelines, p.4 (Exhibits  US-18; TPKM-85); Panel Report on EC - Selected Customs 
Matters , para. 7.123. 
121 See the BTI Guidelines, point "1. Objectives of the Guidelines" (Exhibits US-18; TPKM-85).  WT/DS375/R 
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  the national customs authorities.  A limited version of the database is accessible to the public via the 
internet.  This version of the EBTI lists the followi ng information: the BTI's reference (each BTI has a 
unique reference that includes the International Or ganization for Standardization (ISO) country code, 
followed by a series of numbers to represent the y ear of issue and/or an administrative code); the 
issuing country; the start and end dates of va lidity; the nomenclature code; the classification 
justification (most often limited to a reference to  the applicable GIR of the CN); the language of 
issuance;  the place and date of issuance with identif ication of the issuing authority; a brief description 
of the goods; some national and/or Commission  keywords;  and any applicable images or 
illustrations.
122  A more complete version of the EBTI-d atabase is exclusively available to the 
Commission and issuing authorities of the member  States.  This version contains additional 
information of a confidential nature, such as th e name and address of the applicant/holder, the 
composition of the product and its trade name and any additional information that the applicant 
considers confidential.123  Most BTIs submitted in this dispute were extracted from the public EBTI 
database. 
C. GENERAL ISSUES  
1. Burden of proof  
7.59 The Panel recalls the general principles app licable to burden of proof in WTO dispute 
settlement, i.e., that parties claiming a violation of a provision of a covered agreement by another 
Member must assert and prove its claim.124  In US – Wool Shirts and Blouses the Appellate Body 
stated that: 
"the party who asserts a fact, whether the claimant or the respondent, is responsible 
for providing proof thereof. Also, it is a generally-accepted canon of evidence in civil law, common law, and, in fact, in most ju risdictions, that the burden of proof rests 
upon the party, whether complaining or defending, who asserts the affirmative of a 
particular claim or defence. If that pa rty adduces evidence sufficient to raise a 
presumption that what is claimed is true, the burden then shifts to the other party, who will fail unless it adduces sufficient evidence to rebut the presumption" (original 
footnote omitted).
125 
7.60 Furthermore, in Canada – Dairy (Article 21.5 New Zealand and US II)  the Appellate Body 
stated explicitly that: 
"as a general matter, the burden of proof rests upon the complaining Member. That 
Member must make out a prima facie case by presenting sufficient evidence to raise a presumption in favour of its claim. If the complaining Member succeeds, the 
responding Member may then seek to rebut this presumption. Therefore, under the usual allocation of the burden of proof,  a responding Member's measure will be 
treated as WTO- consistent , until sufficient evidence is presented to prove the 
contrary ."
126 
                                                      
122 See the BTI Guidelines, point "5 . Operation of the EBTI-databas e" (Exhibits US-18; TPKM-85). 
123 Panel Report on EC – Selected Customs Matters , paras. 7.124-7.125. 
124 Appellate Body Report on US – Wool Shirts and Blouses , DSR 1997: I, p. 16. 
125 Appellate Body Report on US – Wool Shirts and Blouses , DSR 1997: I, p. 14. 
126 Appellate Body Report on Canada – Dairy  (Article 21.5 New Zealand and US II), para. 66. WT/DS375/R 
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  7.61 The Appellate Body has also stated that "[i]t is  also well to remember that a prima facie case 
is one which, in the absence of effective refuta tion by the defending party, requires a panel, as a 
matter of law, to rule in favour of the complaining party presenting the prima facie case."
127  T h e  
Appellate Body has said that "[a] prima facie  case must be based on 'evidence and legal argument' put 
forward by the complaining party in relation to each  of the elements of the claim. Complaining parties 
may not simply submit evidence and expect the panel to divine from it a claim of WTO-inconsistency.  
Nor may complaining parties simply allege fact s without relating them to its legal arguments."128   
7.62 The Appellate Body has also explained that "[i]n the context of the GATT 1994  and the WTO 
Agreement , precisely how much and precisely what kind of evidence will be required to establish such 
a presumption will necessarily vary from measure to measure, provision to provision, and case to 
case."129 
7.63 In addition, the Appellate Body in EC – Hormones established that  "when that prima facie 
case is made, the burden of proof moves to the defendi ng party, which must in turn counter or refute 
the claimed inconsistency."130  As the Appellate Body explained in Japan – Apples , the complaining 
party is not responsible for providing proof of all f acts raised in relation to the issue of determining 
whether a measure is consistent with a give n provision of a covered agreement. Although the 
complaining party bears the burden of proving its case, the responding party must prove the case it seeks to make in response.
131 
7.64 In this dispute, the United States, Japan and Chinese Taipei have jointly claimed that the 
European Communities acted inconsistently with  provisions of Articles II:1(a) and (b), and 
Articles X:1 and X:2 of the GATT 1994.132 The complainants thus bear the burden to demonstrate that 
the European Communities acted incons istently with these provisions.   
2. Treaty interpretation 
7.65 Article 3.2 of the DSU directs panels to cl arify the existing provisions of the covered 
agreements "in accordance with customary rules of interpretation of public international law". It is 
well settled in WTO case law that the principles codified in Articles 31 and 32 of the Vienna 
Convention on the Law of Treaties ("Vienna Convention")  are such customary rules.133 These 
provisions read as follows: 
"Article 31: General ru le of interpretation 
1. A treaty shall be interpreted in good faith  in accordance with the ordinary meaning 
to be given to the terms of the treaty in their context and in the light of its object and 
purpose. 
                                                      
127 Appellate Body Report on EC – Hormones, para. 104. 
128 Appellate Body Report on US – Gambling , para. 140. 
129 Appellate Body Report on US – Wool Shirts and Blouses , DSR 1997: I, p. 14 . 
130 Appellate Body Report on EC – Hormones , para. 98. 
131 Appellate Body Report on Japan – Apples , para. 154. 
132 Although the three complainants made a joint request for the establishment of this Panel, which 
includes inter alia  joint claims under Article X of the GATT 1994, Japan did not pursue these particular claims 
in its submissions.  See also para. 7.996 below; fn. 31 below and fn. 994 above. 
133 Appellate Body Report on US – Gasoline , p. 17, DSR 1996:I, 3 at 15-16; Appellate Body Report on 
India – Patents (US) , para. 45; and Appellate Body Report on US – Shrimp , para. 114.  WT/DS375/R 
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  2. The context for the purpose of the inte rpretation of a treaty shall comprise, in 
addition to the text, including its preamble and annexes: 
any agreement relating to the treaty which was made between all the parties in 
connection with the conclusion of the treaty; 
any instrument which was made by one or more parties in connection with the 
conclusion of the treaty and accepted by the other parties as an instrument related to the treaty. 
3. There shall be taken into account, together with the context: 
any subsequent agreement between the par ties regarding the interpretation of the 
treaty or the application of its provisions; 
any subsequent practice in the applica tion of the treaty which establishes the 
agreement of the parties regarding its interpretation; 
any relevant rules of international law appli cable in the relations between the parties. 
4. A special meaning shall be given to a term if it is established that the parties so 
intended. 
Article 32: Supplementary means of interpretation Recourse may be had to supplementary me ans of interpretation, including the 
preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the 
meaning when the interpretation according to article 31: 
leaves the meaning ambiguous or obscure; or leads to a result which is manifestly absurd or unreasonable."
134 
7.66 We recall that the Appellate Body in EC – Computer Equipment explained that tariff 
concessions provided for in a Member's Schedule are pa rt of the terms of the treaty, and, "[a]s such, 
the only rules which may be applied in interpreting the meaning of a concession are the general rules 
of treaty interpretation set out in the Vienna Convention." 135 
7.67 Accordingly, the Panel shall apply these principl es in interpreting the relevant provisions of 
the covered agreements. 
D. PRELIMINARY HORIZONTAL ISSUES  
1. The status of the complainants as third parties in this dispute 
7.68 On 23 January 2009, more than three months fo llowing the establishment of this Panel, on 23 
September 2008, and one day after the composition of the Panel, on 22 January 2009, the United 
                                                      
134 The Vienna Convention on the Law of Treaties (the "Vienna Convention"), done at Vienna, 
23 May 1969, 1155 U.N.T.S. 331; 8 International Legal Materials 679. 
135 Appellate Body Report on EC – Computer Equipment , para. 84. WT/DS375/R 
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  States, Japan and Chinese Taipei notified their inter est to participate as third parties to each others' 
complaints.
136  On 4 February 2009, at the Panel's orga nizational meeting, the European Communities 
commented on such requests and raised the issue of  whether the complainants' participation as third 
parties to each of the other two disputes for whic h they are not the main party serves any "legitimate 
purpose", since the complainants had submitted a joint Panel request. 
7.69 On 13 February 2009, the European Communities sent an email to the Panel stating that it 
expected the Panel to make a ruling on the matter.   On 17 February 2009, the Panel responded via a 
fax to the parties, asking whether the European Communities was formally requesting a preliminary 
ruling on the matter in accordance with paragraph 14 of the Panel's Working Procedures.  In a letter 
dated 20 February 2009, the European Communities informed the Panel that it did not intend to 
request a formal ruling on the matter, but request ed the Panel to "take appropriate organizational 
measures in the course of the proceedings in order to preserve a fair balance of procedural rights between defendant and the complainants and, more generally, to ensure due process."  The European 
Communities expressed its particular concern that par ticipation of the main parties as third parties 
could "disadvantage [it] by giving each [c]omplain ant additional opportunities for arguing their own 
claims before the Panel, beyond those already provided" under the DSU and the Panel's Working 
Procedures. 
7.70 At the "open session" of the first substantive m eeting with the third parties, which took place 
on Wednesday, 13 May 2009, the Panel reminded the co mplainants of the due process concerns raised 
by the European Communities in its 20 February 2009 letter. In that meeting, the Panel noted that the 
European Communities had not requested any rulin g on the matter and that, according to paragraph 
14 of the Working Procedures, th e deadline for such a request ha d already passed. The Panel then 
gave the complainants, as third parties to each others ' complaints, the opportunity to make third party 
statements, but reminded them that any such stat ements should be made bearing in mind the due 
process concerns raised by the European Communities in its 20 February 20 09 letter. None of the 
complainants made any oral statements at this me eting. Subsequently, only Japan made a submission 
responding to Panel questions to third parties in its role as a third party; however, the European 
Communities has not raised any specific due process concern with Japan's responses made as a third-
party.
137   
7.71 The Panel  will briefly consider below concerns ra ised by the European Communities on the 
participation of the main parties as third parties,  as well as the complainants' notifications of their 
interest to participate as third parties more than ten days after the date of the establishment of the 
Panel.  We recall, however, that the European Co mmunities did not formally request a formal ruling 
by the Panel on this matter when given the opportunity to do so. 
(a) The notification of interest to participate as third parties 
7.72 Article 10 of the DSU provides in relevant part: 
                                                      
136 See triple-numbered document WT/DS375/9, WT/DS376/9 and WT/DS377/7 of 26 January 2009 
(in particular, fn. 1). 
137 Japan submitted responses to the Panel questions to the third parties after the first substantive 
meeting.  However, in its response, Ja pan solely referred to paragraphs fro m its responses to the questions from 
the Panel, in its capacity as a main party to the disput e.  Japan's comments therefore did not reflect additional 
arguments that had not already been made.  WT/DS375/R 
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  "1. The interests of the parties to a dispute and those of other Members under a 
covered agreement at issue in the dispute shall be fully taken into account during the panel process. 
2. Any Member having a substantial inte rest in a matter before a panel and 
having notified its interest to the DSB (refe rred to in this Understanding as a "third 
party") shall have an opportunity to be  heard by the panel and to make written 
submissions to the panel.  These submissions shall also be given to the parties to the 
dispute and shall be reflected in the panel report." 
7.73 Although Article 10 is silent on the period of time Members have to notify their interest to 
participate as third parties in a given disput e, we note the following GATT Council Chairman's 
Statement of June 1994 discussed notification within  a ten-day period following the establishment of 
a panel: 
"Delegations in a position to do so, should indicate their intention to participate as 
third party in a panel proceeding at the Council session which establishes the panel.  
Others who wish to indicate a third party interest should do so within the next ten days."
138 
7.74 We are aware that WTO Members have on previous occasions notified their interest to 
participate as third parties in disputes beyond the ten days following the establishment of the panel.  
For example, two third-party notification requests in EC – Export Subsidies on Sugar (Australia)  were 
submitted after that period but prior  to composition of the panel pursuant to Article 8.7 of the DSU.139  
The panel in that dispute recalled the Appellate Body's decision in EC – Hormones  that "the DSU 
leaves panels a margin of discretion to deal, al ways in accordance with due process, with specific 
situations that may arise in a particular case and that are not explicitly regulated."140  That panel 
allowed third party participation on the basis that th e notification did not adversely affect the selection 
and composition of the panel, nor otherwise hamper the panel process.141  In Turkey – Rice , a third 
party request was notified more than ten days  after the establishment of the Panel, and after  the panel 
had been composed.142  This panel allowed pa rticipation, stating: 
"[S]imilarly to the relevant third party requests in EC – Export Subsidies on Sugar 
(Australia) , as a result of Pakistan's request, the Panel process has not been hampered. 
In addition, although the Panel had already been composed when Pakistan formulated 
its third party request, we see no reason to believe that accepting Pakistan's request 
would affect the "independence of the memb ers" of this Panel, as stipulated by 
Article 8.2 of the DSU, nor does it seem to prejudice in any way the manner in which this Panel fulfil (sic) its functions specified in Article 11 of the DSU: '[T]o assist the 
DSB in discharging its responsibilities unde r this Understanding and the covered 
agreements. Accordingly, a panel should ma ke an objective assessment of the matter 
before it, including an objective assessme nt of the facts of the case and the 
                                                     
 
138 Third Party Participation in Panels, Statement by the Chairman of the Council, document C/COM/3 
of 27 June 1994, page 1.  However, as noted by a previous panel, the question of formalizing a ten-day 
notification requirement remains the subject of proposals in the context of the DSU negotiations (see Panel 
Report on EC – Export Subsidies on Sugar (Australia) , para. 2.2).  
139 Panel Report on EC – Export Subsidies on Sugar (Australia) , para. 2.1. 
140 Panel Report on EC – Export Subsidies on Sugar (Australia) , para. 2.3 (citing the Appellate Body 
Report on EC – Hormones , fn. 138). 
141 Panel Report on EC – Export Subsidies on Sugar (Australia) , para. 2.3. 
142 Panel Report on Turkey – Rice , para. 6.1. WT/DS375/R 
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  applicability of and conformity with the re levant covered agreem ents, and make such 
other findings as will assist the DSB in making the recommendations or in giving the 
rulings provided for in the covered agreements...'".
143 
7.75 In the present dispute, the complainants notified their interest to participate as third parties 
more than three months following the establishment of  this Panel, i.e., on 23 September 2008, and one 
day after  the composition of this Panel, i.e., on 22 Janua ry 2009. Despite the length of delay and the 
fact that this Panel had already been compos ed, we see no reason why accepting the complainants' 
requests would affect the "independence of the member s" of this Panel or otherwise hamper the Panel 
process.  The members of this Panel had been selected  taking into consideration the participation of 
the complainants as main parties. We do not see how the additional participation of the complainants 
as third parties would have compromised the initial se lection of these panellists; nor has the European 
Communities made any such allegation. Given th e foregoing, we confirm our acceptance of the 
complainants' request to participate as third parties to this dispute.144 
(b) Multiple complainants and the joint panel request 
7.76 Article 9 of the DSU provides in relevant part: 
"1. Where more than one Member request s the establishment of a panel related 
to the same matter, a single panel may be established to examine these complaints 
taking into account the rights of all Member s concerned.  A single panel should be 
established to examine such co mplaints whenever feasible. 
2. The single panel shall organize its ex amination and present its findings to the 
DSB in such a manner that the rights whic h the parties to the dispute would have 
enjoyed had separate panels examined the complaints are in no way impaired.  If one 
of the parties to the dispute so requests, the panel shall submit separate reports on the dispute concerned.  The written submissions by each of the complainants shall be 
made available to the other complainants, and each complainant shall have the right 
to be present when any one of the other comp lainants presents its views to the panel." 
7.77 We additionally recall the cited provisions of Article 10 of the DSU, presented in 
paragraph 7.72 above. 
7.78 In the present dispute, we do not consider the fa ct that multiple complainants have presented a 
joint panel request should per se  prevent parties from seeking to participate as third parties, or that the 
complainants' participation as third parties woul d not serve a "legitimate purpose". Nothing in the 
language of Articles 9 or 10 of the DSU limits or re gulates the participation of complainants as third 
parties in disputes where multiple compla inants present a panel request jointly.
145 In fact, such 
                                                      
143 Panel Report on Turkey – Rice , para. 6.8. 
144 We again note, as discussed above, that in any case the complainants did not make any third-party 
written or oral submissions to the Panel, nor did they exer cise their capacity as third parties to any significant 
extent.  Furthermore, when asked to clarify its position, the European Communities itself did not formally 
request the Panel to reject the third party status of th e complainants.  See also paras. 7.70 and 7.71 above. 
145 We also note that the equivalent provisions in the Working Procedures for Appellate Review (see 
document WT/AB/WP/3 of 28 February 1997, Rules 23 and 24) do not have any such limitation either.  In 
addition, as noted by the European Communities, co-complainants in a previous dispute have simultaneously 
participated as third parties to each others' complaints. See, for instance, EC – Trademarks 
and Geographical Indications (DS174 and DS290), in which the United States and Australia were third parties 
to each others' complaints.  WT/DS375/R 
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  participation may prove desirable for a complainant.  For instance, a co-complainant that presented a 
joint panel request may decide to pursue, in sub sequent phases of the panel proceedings, only certain 
claims that it had jointly included in the panel request .  It is possible that a co-complainant under these 
circumstances would have a legitimate interest in co mmenting, as a third party, on the claim(s) it had 
decided not to pursue as a joint complainant. We cons ider; however, that in cases where multiple 
complainants present a joint panel request, and simulta neously request to participate as third parties, 
care should be taken to ensure protection of the due pr ocess rights of the parties.  In this dispute, we 
have reminded the complainants of the European  Communities' due process concerns, and received no 
specific complaint from the European Communities.   
(c) Conclusions 
7.79 For all the foregoing reasons, the Panel does not consider that the co-complainants' 
participation as third parties to each of the two ot hers' disputes for which they are not the main party 
in any way adversely affected or hampered the pa nel process, or otherwise impaired the due process 
rights of any of the parties to this dispute.  The Pa nel therefore confirms the status of the complainants 
as third parties to each other's complaints. 
2. The status of the EC member States as respondents in this dispute 
(a) Arguments of the parties 
7.80 At the Panel's organizational meeting and in a 4 February 2009 letter addressed to the Panel, 
the European Communities  notified the Panel that it would participate as the sole respondent in 
proceedings before the Panel.  To the extent the Pa nel were to find that any of the measures specified 
in the joint panel request breach WTO obligations, the European Communities stated it will bear full 
responsibility for such breach of its Schedule.
146  The European Communiti es submits that it has had 
exclusive competence with respect to all tariff ma tters since 1968, pursuant to Article 133 of the 
Treaty establishing the European Community ("EC Tr eaty"). It argues that the role of customs 
authorities of the EC member States is limited to applying measures previously enacted by the 
European Communities.147  Further, it argues that EC member States are required under EC law to 
apply the implementing measures taken by the Eur opean Communities, and are prevented from taking 
any remedial action on their own until the Eu ropean Communities has adopted the required 
implementing measures to comply with any recommendation by the Panel.148  Because the 
complainants have only brought "as such" clai ms against measures enacted by the European 
Communities149, the European Communities argues that ther e is no basis to direct findings against 
EC member States for measures that EC member States have no power to repeal or amend.150  
Therefore, the European Communities argu es that addressing any recommendation to each 
EC member State would serve no useful purpose.   
                                                      
146 Letter from the Delegation of the Commission (4 February 2009). 
147 European Communities' second written submission, para. 149. 
148 European Communities' response to Panel question No. 17.  See also statements of the European 
Communities at the Panel's organizatio nal meeting of 4 February 2009. 
149 European Communities' second written submission, para. 149. In EC – Computer Equipment , the 
European Communities submits, claims were brought against certain measures of the European Communities 
and certain "practices" of two EC memb er States, the United King dom and Ireland.  In contrast, in the case at 
hand, the European Communities notes that all the claims concern EC measures, and are brought on an "as 
such" basis. Thus, The European Commun ities argues that the Panel's consid eration neither requires nor justifies 
the designation of the EC member States as respond ents.  See European Communities' response to Panel 
question No. 17 and European Communities' second written submission, paras. 147-152. 
150 European Communities' second written submission, para. 148. WT/DS375/R 
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  7.81 The complainants  argue for the inclusion of EC memb er States as respondents for several 
reasons. They note that EC member States are WTO Members in their own right, with their own obligations, including under Article II of the GA TT 1994.  In addition, they argue that both the 
European Communities and its member States play a role in the application of duties, generally.  
Therefore, both play a role in the application of du ties to the products in question in this dispute.  
While noting that the European Co mmunities administers the CN and has issued the regulations and 
CNENs at issue, the complainants argue that nati onal customs authorities in EC member States issue 
BTIs, interpreting and applying th ose regulations and CNENs, and apply duties to the products in 
accordance with the relevant EC regulations and CNEN s. As a systemic matter, as reflected in rulings 
by prior panels, such as EC – Computer Equipment
151, the complainants argue that the internal legal 
relationship between the European Communities and its member States cannot diminish the rights of 
other WTO Members to exercise their rights under the WTO Agreement  (including rights under the 
DSU). Therefore, the complainants submit, they have exercised their right s under the DSU to bring 
claims against the European Communities as well  as the EC member States, and the terms of 
reference of this Panel reflect this.152   
(b) Consideration by the Panel 
7.82 The issue is whether the Panel should make findings with respect to the actions of the 
EC member States and address recommendations to EC member States in this dispute, to the extent it finds that any of the measures at issue breach WTO obligations.   
7.83 Article 3.3 of the DSU contemplates instances "in which a Member considers that any 
benefits accruing to it directly or  indirectly under the covered ag reements are being impaired by 
measures taken by another Member " (emphasis added).  Article 3.7 of the DSU in turn provides that 
"[t]he aim of the dispute settlement mechanism is to secure a positive solution to a dispute".  Article 
11 of the DSU provides that "a panel should make an objective assessment of the matter before it, 
including an objective assessment of the facts of th e case and the applicability of and conformity with 
the relevant covered agreements, and make such other findings as will assist the DSB in making the 
recommendations or in giving the rulings pr ovided for in the covered agreements". 
7.84 The Panel notes that the complainants' joint panel request is addressed to the European 
Communities and its member States .
153  In their request, the complainants claim that both the 
European Communities, and its member States acco rd tariff treatment to certain information 
technology products at issue in this dispute that is inconsistent with Articles II:1(a) and II:1(b) of the 
GATT 1994.   
7.85 The complainants acknowledge that  they have not challenged any specific prior application of 
duties by particular EC member States.154  However, they argue it is a ppropriate to directly challenge 
EC member States because the customs authorities of individual member States apply duties to the 
products in accordance with the rele vant EC regulations and CNENs. 
                                                      
151 Japan and Chinese Taipei refer to the Panel Report on EC – Computer Equipment  (para. 8.16) 
(Japan's response to Panel question No. 17; Chinese Taipei's response to Panel question No. 17).  Japan separately cited the Panel Report on EC - Selected Customs Matters  (paras. 7.136-145), which it argues, 
observed that Article XXIV:12 of GATT 1994 constitute s neither an exception to nor a derogation from the 
obligation of uniform administration in Article X:3(a) . (Japan's response to Panel question No. 17).   
152 Complainants' responses to Panel question No. 17. 
153 In this regard, the disputes are identically entitled "European Communities and its member States – 
Tariff Treatment of Certain Information Technology Products". See triple-numbered document WT/DS375/9, WT/DS376/9 and WT/DS377/7 of 26 January 2009, in particular, fn. 1. 
154 See complainants' response to Panel question No. 119.  WT/DS375/R 
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  7.86 It is not in dispute that EC member States are Members of the WTO, either as original 
Members or as Members that acceded to the WTO following the conclusion of the Uruguay Round.
155   
The European Communities does not exclude the possi bility that claims of WTO inconsistency may 
be brought against individual EC member States.  However, the European Communities argues that it 
should be treated as the sole respondent, and not individual member States, in this dispute.  The 
European Communities focuses both on the fact that th e complainants have limited their claims to an 
"as such" challenge156, and their view that the role of customs authorities of EC member States is 
limited to applying measures previously enacted  by the European Communities. The European 
Communities submits that the complainants' clai m addressed against these EC member States does 
not concern the "application" or "practice" of the EC measures at issue.157  To the extent a violation 
were determined, upon implementa tion of the Panel's recommendation by the European Communities, 
the European Communities attests th at EC member States would be required under EC law to apply 
the implementing measures taken by the European Communities.158   
7.87 In accordance with Article 3.7 of the DSU,  our primary objective is to secure a positive 
solution to the dispute.  To this end, our terms of reference as set fo rth in paragraph 1.6above direct us 
"[t]o examine, in the light of the relevant provisions  in the covered agreements cited by the parties to 
the dispute, the matter referred to the DSB by the United States, Japan and the Separate Customs 
Territory of Taiwan, Penghu, Kinmen and Ma tsu in document WT/DS375/8, WT/DS376/8 and 
WT/DS377/6, and to make such findings as will assi st the DSB in making the recommendations or in 
giving the rulings provided for in those agreements". 
7.88 At the outset, our focus concerns the tariff treat ment provided for under the measures at issue.  
As noted by the complainants, th e same issue arose before in EC – Computer Equipment .159  That 
Panel ultimately found it unnecessary to  rule on claims directed against EC member States, in light of 
findings of inconsistency determined with resp ect to the measures of the European Communities.160 
7.89 In the circumstances of this case, we do not consider it necessary to determine at the outset  
whether to rule on the claims directed against EC member States.  We note the matter in this dispute 
is directed towards a number of measures promulgated by the European Communities. The complainants have clarified that they are not challe nging particular applications of the measures.  The 
                                                     
 
155 Article XI of the WTO Agreement establishes requ irements for qualifying as an "original Member" 
of the WTO, while Article XII of the WTO Agreement, e xplains that a State or separate customs territory may 
accede to the WTO Agreement. For a list of EC member States that are WTO members, see WTO website, 
available at http://www.wto.org/englis h/thewto_e/whatis_e/tif_e/org6_e.htm. 
156 European Communities' second written submission, para. 149.   
157 European Communities' second written submission, para. 149.  See also the European Communities' 
response to Panel question No. 17; European Comm unities' second written submission, paras. 147-152. 
158 European Communities' response to Panel question No. 17.  See also the statements of the European 
Communities at the Panel's organizational meeting of 4 February 2009; Letter from the Delegation of the 
Commission (4 February 2009). 
159 Panel Report on EC – Computer Equipment , para. 8.16.  In that dispute, the United Kingdom and 
Ireland were identified as respondents.   
160 Panel Report on EC – Computer Equipment , para. 8.72.  In concluding it unnecessary to rule on 
claims directed against the United Kingdom and Ireland, the Panel in EC – Computer Equipment  recognized that 
its terms of reference required it to examine the matters  referred to the DSB, including those concerning the 
United Kingdom and Ireland.  That Panel stated that it would consider at the outset whether customs authorities in the European Communities and the United Kingdom and Ireland "have or have not deviated from the 
obligations assumed under that Schedule".  The Pane l concluded that the European Communities and its 
member States are "all bound by their tariff commitments under Schedule LXXX", and stated that the focus of its inquiry was "tariff treatment of  LAN equipment and multimedia PCs by customs authorities in the European 
Communities".  See Panel Report on EC – Computer Equipment , para. 8.16.   WT/DS375/R 
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  European Communities sought to assure the Panel that the role of customs authorities of the 
EC member States is limited to applying measures previously enacted by the European Communities.  
In the context of the claims before us, our analysis  of the complainants' claims with respect to the 
FPDs and STBCs narrative descriptions and the al leged concession pertaining to MFMs, we will 
consider the extent to which the European Commun ities and its member States have failed to comply 
with obligations in the context of EC commitments set  forth in the EC Schedule.  To the extent the EC 
member States apply WTO inconsistent measures en acted by the European Communities, we consider 
there is a reasonable basis to conclude th at they have acted inconsistently.   
7.90 Accordingly, we refrain on ruling at the outset whether findings against particular EC 
member States would be necessary to secu re a positive solution to the dispute. 
3. Order of analysis for the complainants' claims under Articles II and X of the GATT 
1994 
(a) Arguments of the parties 
7.91 The United States  requests the Panel to begin its analysis with those claims concerning the 
concessions that appear in the Annex to the EC Sche dule.  The United States considers it practical and 
logical to begin with these concessions as they orig inate from Attachment B of the ITA, which uses 
general terminology that "often span multiple tariff subheadings"
161.  Furthermore, it submits that the 
language in the EC headnote162 or the ITA does not specify a particular order of analysis.  Chinese 
Taipei  similarly requests the Panel to begin with an an alysis of the claims made in connection with 
the Annex to the EC Schedule, arguing that, if a pr oduct falls within the concessions made pursuant to 
Attachment B, it is no longer necessary to look at specific Attachment A concessions.163  Japan 
submits that the two claims are legally independe nt and has not requested the Panel to follow a 
particular order of analysis.164  However, Japan requests the Panel to refrain from practising judicial 
economy with respect to its claims in relation to headings/subheadings listed in Attachment A and B, 
as reflected in the EC Schedule.165  The complainants have not requested the Panel to follow a 
particular order of analysis with respect to th eir claims in connection with MFMs, under Articles 
II:1(a) and (b) of the GATT 1994, or any order of analysis as concerns Articles X:1 and X:2 of the GATT 1994
166. 
7.92 The European Communities argues that it does not see any "added value" in the 
complainants claims concerning the FPDs narrative description that appears in the Annex to the EC 
Schedule, in light of the complainants' separate claims under tariff subheading 8471 60 90, which is 
one of the codes listed next to the narrative description in the Annex to the EC Schedule.167  While 
responding to the complainants' arguments concerni ng the STBCs narrative description, the European 
                                                      
161 United States' response to Panel question No. 1. 
162 In particular, the United States refers to the language "to the extent not specifically provided for in 
this Schedule" and "wherever the product is classified" that appears in the EC Schedule (Exhibits US-1; US-7). 
163 Chinese Taipei's response to Panel question No 10(b). 
164 Japan's response to Panel question No. 1. 
165 Japan's second written submission, para. 143; Japan's response to Panel question No. 113. 
166 United States' response to Panel question no. 158; Chinese Taipei's response to Panel question 
No. 158. 
167 European Communities' response to Panel question No. 10(b).  The European Communities states 
specifically that it "does not see any added value in the latter analysis compared to  an analysis under tariff 
heading 8471 60 90 unless the Panel would agree (quod non) with the overly broad and untenable interpretation by the complainants of the word 'for' in the narrativ e product definition of 'flat panel displays…'" (European 
Communities' response to Panel question No. 10(b)).  WT/DS375/R 
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  Communities submits that it does not understand  what the United States means through its 
identification of "the commitment to provide dut y-free treatment for set top boxes meeting the 
description contained in the four individual tariff lines  in the EC Schedule ..., HS96 8528 12 91 in 
particular".
168  Further, it notes that the other complainants have not identified the tariff lines as a 
separate concession.169  The European Communities does not address whether a particular order of 
analysis should be followed with respect to the co mplainants' MFM claims.  It also does not consider 
that there is a legal requirement in Article X to ad opt a particular order of analysis for Articles X:1 
and X:2 of the GATT 1994.170 
(b) Consideration by the Panel 
7.93 The Panel  notes the parties' views regarding the correct order of analysis that the Panel 
should follow, as set forth in the summary of their views above.   
7.94 The Panel will address the complainants' claims relating to the FPDs narrative descriptions as 
it appears in the Annex to the EC Schedule, followe d by their claim in connection with duty-free tariff 
item number 8471 60 90, as concerns flat panel disp lay devices.  Thereafter, the Panel will address the 
complainants' claims relating to the STBCs narrativ e description as it appears in the Annex to the EC 
Schedule, followed by the United States' claims in connection with duty-free tariff item numbers 
8517 50 90, 8517 80 90, 8525 20 99 and 8528 12 91, and finally, claims under Articles X:1 and X:2 of the GATT 1994 starting with Article X:1.  Finally , the Panel will consider the complainants' MFM 
claims, first under tariff item number 8471 60  and thereafter tariff item number 8517 21. 
7.95 In taking this approach the Panel is mindfu l that both the United States and Chinese Taipei 
requested us to consider claims under the narrative d escriptions in the Annex to the EC Schedule first, 
and presented their submissions and arguments accordi ngly.  Japan did not favour any particular order 
of analysis, but requested us not to exercise judici al economy with its separate claims in relation to 
tariff item number 8471 60 90, with respect to its claims concerning flat panel display devices.
171 The 
Panel notes that it may only consider the issue of judicial economy after having considered the claims 
under the Annex to the EC Schedule.  Finally, we do not understand the European Communities to be 
objecting to an order of analysis that begins with  the narrative descriptions in the Annex to the EC 
Schedule.  Rather, the European Co mmunities has raised a number of i ssues with respect to the clarity 
of the claims made by the complainants, including th e identification of the pr oducts at issue, aspects 
of the measures at issue, and the obligations clai med to be breached.  As these arguments, according 
to the European Communities, rela te to the substantive issue of whether the complainants have 
established a prima facie case, we will address them in  other sections of these Reports.  In particular, 
we are not in a position to conclude at the outset that the claims relating to the Annex to the EC 
Schedule provide no "added value", as suggested by the European Communities, without actually 
considering the substance of those claims. 
7.96 However, prior to considering the complainants  particular claims under Articles II and X of 
the GATT 1994, the Panel will address general issues and several preliminary issues affecting the 
disputes. 
                                                      
168 European Communities' second oral statement, para. 46 (referring to United States' second written 
submission, para. 23 (italics added by European Communities)). 
169 European Communities' second oral statement, para. 49.  In response to question 10 from the Panel, 
the European Communities states: "the Panel appears to be called upon to examine the claims of the 
complainants only on the basis of the narrative product definition in light of the products the complainants have 
(or have failed to) identify" (European Communities' response to Panel question No. 10(b)).   
170 European Communities' response to Panel question No. 158. 
171 Japan's second written submission, para. 143. WT/DS375/R 
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  4. Characterization of the Panel's task for the complainants' claims under Article II of the 
GATT 1994 
7.97 As indicated in paragraph 7.1 above, the funda mental issue for the Panel's determination in 
these disputes is whether, in violation of Article  II of the GATT 1994, the identified EC measures 
result in less favourable tariff treatment to imports of FPDs, STBCs and MFMs than that provided for 
in the EC Schedule, and whether the tariff treatment provided is in excess of that provided for in the EC Schedule.   
7.98 Article II:1 of the GATT 1994 provides in relevant part: 
"(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 Schedule anne xed 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 Sc hedule relates, and subject to the terms, 
conditions or qualifications set forth in that Schedule, be exempt from ordinary 
customs duties in excess of t hose set forth and provided therein.  Such products shall 
also be exempt from all other duties or charges of any kind imposed on or in connection with the importation in excess of those imposed on the date of this Agreement or those directly and mandator ily required to be imposed thereafter by 
legislation in force in the importing territory on that date." 
7.99 In Argentina – Textiles and Apparel , the Appellate Body elaborated on the meaning and scope 
of these provisions:  
"The terms of Article II:1(a) require that a Member 'accord to the commerce of the 
other Members treatment no less favourable than  that provided for' in that Member's 
Schedule ... Paragraph (a) of Article II:1 contains a general prohibition against 
according treatment less favourable to imports than that provided for in a Member's 
Schedule. Paragraph (b) prohibits a specific kind of practice that will always be inconsistent with paragraph (a ): that is, the application of ordinary customs duties in 
excess of those provided for in the Schedule".
172 
7.100  In light of the foregoing, as in previous cases173, in order to assess the complainants' claims, 
we will consider the following: (a) the treatment accor ded to the products at issue in the EC Schedule; 
(b) treatment accorded to the products at issu e under the challenged measures at issue; and 
                                                      
172 Appellate Body Report on Argentina – Textiles and Apparel , para. 45.  The Appellate Body further 
explained the relationship between the two provisions as follows:  
"In accordance with the general rules of treat y interpretation set out in Article 31 of the 
Vienna Convention, Article II:1(b), first sentence,  must be read in its context and in light of 
the object and purpose of the GATT 1994.  Article  II:1(a) is part of the context of Article 
II:1(b); it requires that a Member must acco rd to the commerce of the other Members 
'treatment no less favourable than that provided for'  in its Schedule.  It is evident to us that the 
application of customs duties in excess of  those provided for in a Member's Schedule 
inconsistent with the first sentence of Article II:1(b), constitutes  'less favourable' treatment 
under the provisions of Article II:1(a) ... ."  (Appellate Body Report on Argentina – Textiles and Apparel , para. 47). 
173 Panel Report on EC – Chicken Cuts , para. 7.65.  WT/DS375/R 
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  (c) whether the challenged measures result in less fa vourable treatment of the products at issue than 
that provided for in the EC Schedule and, more pa rticularly, whether the challenged measures result in 
the imposition of duties and charges on the products at  issue in excess of  those provided for in the EC 
Schedule. 
7.101  We are thus required to interpret certain c oncessions in the EC Schedule. As we have 
indicated above in paragraph 7.16, the EC Schedul e is an integral part of the GATT 1994 and the 
WTO Agreement . Accordingly, we will assess the various asp ects of the EC Schedule cited by the 
complainants applying the principles of treaty in terpretation codified in the Vienna Convention  in 
addressing the claims before us. 
7.102  In addition, if we were to determine that th e applied rate exceeds the bound duty rate, then, in 
accordance with the aforementioned approach, the a pplication of customs duties would be "in excess" 
of those provided for in the EC Schedule, and woul d consequently also violate Article II:1(a) of the 
GATT 1994 by according to imports of the products at  issue treatment less favourable than that 
provided for those products in accordance with th e applicable concession in the EC Schedule. 
5. What is required in order to prove an "as such" claim in the circumstances of this case 
7.103   In the broader context of this dispute, the pa rties have discussed what is required to prove an 
"as such" claim in the circumstances of this case.   
7.104  The European Communities  has argued in the context of the complainants' GATT 1994 
Article II claims in connection with flat panel disp lay devices and set top boxes that the complainants 
failed to identify in sufficient detail the products or  aspects in the measures at  issue to establish that 
all or some  of the products identified by the complainan ts are necessarily treated by the European 
Communities inconsistently with its concessions.  Th e European Communities ar gues that the issue of 
a violation under Article II cannot be determined  without consideration of all the relevant 
characteristics of the particular products at issue th at may be involved in an objective classification 
exercise.  In this sense, the Eur opean Communities contends that the complainants cannot show that a 
certain category of existing products is treated in a way inconsistent with the EC commitments 
because their arguments address an overly broad pr oduct description.  Thus, in the view of the 
European Communities, a panel should not reach the requested findings as "it would not be clear with 
respect to which products the Panel found a viol ation".  The European Communities considers the 
approach to be consistent with Article II of the GATT 1994 which, it argues, discusses a WTO 
Member's concessions with respect to a particular product.
174   
7.105  The complainants  argue that, in order to establish a vi olation of Article II of the GATT 1994,  
their task is to demonstrate that the measures nece ssarily lead EC customs authorities to impose duties 
on one or more products subject to their commitments to provide duty-free treatment.175  Citing what 
they suggest was the approach in China – Auto Parts , the complainants argue that they are not 
required to demonstrate that the measures in  question result in the imposition of duties on every  single 
model of flat panel display that is imported into the European Communities.  Instead, they submit that 
any aspect of the criteria in the me asures can lead to a violation.176  According to the complainants, 
                                                      
174 European Communities' response to Panel question No. 22. 
175 Complainants' response to Panel question No. 22.  In proving an "as such" claim, the United States 
argues that a complainant may present evidence including the text of the rele vant measure, as well as evidence 
of its application.   
176 Complainants' response to Panel question No. 22 (referring to Panel Report on 
China - Auto Parts (US) , para. 7.540). WT/DS375/R 
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  the mere fact that a measure might result in the correct duty treatment for a given model of a product 
in some instances would not "save" the measure from a finding of violation.  By demonstrating that a 
measure excludes from duty-free treatment any display with particular technical characteristics, the 
measures result in the imposition of duties on pr oducts covered by the EC's duty free tariff 
obligations, thereby violating Article II of the GATT 1994.   
7.106  The DSU does not expressly distinguish between  "as such" or "as applied" claims of 
violation, nor does Article 6.2 of the DSU or any other provision of the DSU set forth a particular burden of proof that applies to complainants who rai se "as such" claims of violation.   We note that 
the Appellate Body in US – Oil Country Tubula r Goods Sunset Reviews  elaborated on the nature of an 
"as such" challenge, as follows: 
"By definition, an 'as such' claim challenges laws, regulations, or other instruments of 
a Member that have general and prospective application, asserting that a Member's conduct—not only in a particular instance that  has occurred, but in future situations 
as well—will necessarily be inconsistent with  that Member's WTO obligations.  In 
essence, complaining parties bringing 'as su ch' challenges seek to prevent Members 
ex ante from engaging in certain conduct."
177 
7.107  Further, we note that the Appellate Body in US – Carbon Steel  discussed the burden of proof 
attributable to the complaining party when  bringing an "as such" claim, as follows:  
"[T]he party asserting that another party's muni cipal law, as such, is inconsistent with 
relevant treaty obligations, bears the burden of introducing evidence as to the scope 
and meaning of such law to substantiate th at assertion.  Such evidence, will typically 
be produced in the form of the text of the relevant legislation or legal instruments, 
which may be supported, as appropriate, by ev idence of the consistent application of 
such laws, the pronouncements of domestic courts on the meaning of such laws, the 
opinion of legal experts and the writings of recognized scholars."178   
7.108  Thus, in substantiating an "as such" challenge against laws, regulations, or other instruments 
of a Member that have general and prospective a pplication, a complainant may adduce evidence in the 
form of the text of the relevant legislation or  legal text, and may also submit evidence of the 
application of such legislation. 
7.109  In the present dispute, the complainants have identified a series of generally applicable EC 
measures pertaining to the tariff classification of prod ucts (including certain CN codes, classification 
regulations and CNENs).  Further, in certain cases,  the complainants have also presented individual 
classification decisions by customs authorities as ev idence of the application of the measures at 
issue.179   
7.110  The European Communities asserts  that due to an "overly broad" product description used by 
the complainants and reference to certain criteria in the measures at issue, the complainants cannot 
show that a "category of actually existing products" is indeed treated inconsistently with the European 
Communities' concessions at issue in this dispute.180  In the European Communities' view, only by 
                                                      
177 Appellate Body Report on US – Oil Country Tubular Goods Sunset Reviews , para. 172. 
178 Appellate Body Report on US – Carbon Steel , para. 157 (emphasis added); see also Panel Report on 
Mexico – Rice , para. 6.26. 
179 Complainants' response to Panel question No. 120. 
180 European Communities' response to Panel question No. 22.  WT/DS375/R 
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  knowing the "product model" or "category" therein would it be possible to examine the objective 
characteristics of that product and determine the applicable tariff treatment.
181   
7.111  We consider that the points made by the Eu ropean Communities raise two questions in 
particular:  first, is it sufficient to focus on aspects of, or particular criteria within, a broader measure 
in order to establish an "as such" breach?  Second, is it necessary to identify specific product models 
or categories of products in order to establish an "as such" breach, or is it sufficient to identify 
products that share a particular characteristic?  
7.112  In our view, precisely what is required to estab lish an "as such" breach will vary from case to 
case depending on the particular circumstances of th e case, including the nature of the measures and 
obligations at issue.  We note that, in general term s, the complainants assert that the measures at issue 
in this case are designed to specify the characteristics that a product must have in order to fall within a 
certain duty-free tariff heading, as well as identifyi ng certain characteristics that will disqualify a 
product from falling within that tariff heading.  During the course of these proceedings, the 
complainants have focused on particular aspects of th e measures at issue that, in their view, exclude 
products with certain characteristics fro m falling within duty-free tariff headings. 
7.113  In this regard, we do not  understand the complainants to be arguing that all products that have 
the particular characteristic identified must nece ssarily receive duty-free treatment.  Rather, we 
understand the complainants to be arguing that th e exclusion from duty-free treatment of all products 
with a certain characteristic, will necessarily result in the application of duties to some products that 
fall within the EC duty-free commitments. Thus, in  order to assess this claim it will be necessary for 
us to consider whether, as claimed by the complain ants, the challenged measures do indeed operate to 
automatically  exclude from duty-free treatment products with certain characteristics. Moreover, it is 
only in the light of the scope of these concessions that  the consistency of the measures at issue can be 
assessed. Specifically, the issue before us is wh ether the scope of the EC duty-free concessions 
include some products with characteristics that, by virtue of the EC measures, are excluded from duty-
free treatment.  If the obligations do include such pr oducts, and if the effect of the EC measures is 
necessarily to deny such products duty-free treatment , then we would consider that an "as such" 
breach of the EC commitments will have been established.   
7.114  In light of the nature of the claims before us, we do not agree with the European Communities 
that in the present case it is necessary to examine all aspects of the measures at issue, or all 
characteristics of a particular product, in order to es tablish an "as such" breach.  Indeed, the essence of 
the complainants' case, as we understand it, is that  the EC measures at issue do not operate in such a 
manner as to permit such a holistic examination of a pr oduct in light of the entirety of its objective 
characteristics. Rather, we understand the complainan ts' claim to be that aspects of the measures 
operate to exclude from particular duty-free tariff he adings all products with a certain characteristic 
irrespective of the other objective characteristics they may possess.  Indeed, it is this automatic 
exclusion of products with certain characteristics that  appears to lie at the heart of the claims against 
the European Communities in the cu rrent case. Of course, the compla inants' characterisation of the 
measures will need to be examined in the course of our analysis. 
7.115  We note that the Panel in China – Auto Parts , referred to by the parties in this dispute, 
followed a similar approach. As the United States points out182, that panel explained that "the scope of 
[its] review in respect of the complainants' claim against China's measures, in particular the essential 
character determination, under Articles II:1(a) a nd (b) of the GATT 1994 is limited to a very narrow 
                                                      
181 See, e.g., European Communities' second written submission, para. 66. 
182 United States' second written submission, fn. 20. WT/DS375/R 
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  question of whether any aspect of the criteria set  out in the measures w ill necessarily lead to a 
violation of China's obligations under its Schedule and consequently Articles II:1(a) and (b) of the 
GATT 1994".
183 
7.116  We also do not accept the European Communities' assertion that particular product models or 
categories must always be identified in classification cases involving Article II of the GATT 1994.  The key issue in this case under Article II is whether certain products that are entitled duty-free 
treatment under the EC Schedule indeed receive su ch treatment.  If the complainants are able to 
establish that the measures operate in such a wa y as to necessarily deny duty -free treatment, then we 
consider that a breach of Article II has been estab lished.  More specifically, in the circumstances of 
this case, if we were to determine that some produc ts fall within the scope of duty-free concessions in 
the EC Schedule, then if the challenged measure s provide for the applica tion of duties to those 
products covered by the concession, this would be sufficient to find a breach of Article II.  The 
European Communities also suggests that a ruling on this basis "would not be clear with respect to 
which products the Panel found a violation."  While th e particular findings we will make in this case 
will only be considered after a full examination of  the issues before us, we would observe that 
findings generally focus on measures rather than products.  While the obligation under Article II 
refers to the tariff treatment of products, such trea tment results from the effect  of certain measures.  
This means that, in the event that a violation is found, it is the measures at issue that must be brought 
into conformity.  In light of th is, we consider that a finding that focuses on certain aspects of the 
measures at issue would constitute a result that is sufficiently clear.   
7.117  In light of the arguments and evidence pr esented by the complainants throughout the 
proceedings, we will thus consider whether certain  aspects of the measures operate to exclude from 
particular duty-free tariff headings all products with the identified characteristic(s), irrespective of the 
other objective characteristics they may possess. To the extent that products with certain 
characteristics identified by the complainants are automatically excluded, we would not consider it 
necessary to undertake an examination of all aspects of the measures or all aspects of a particular 
product. 
E. F
LAT PANEL DISPLAY DEVICES (FPD S) 
7.118  In this section of the Reports, the Panel will consider the complainants ' claims that certain 
EC measures are inconsistent with Articles II:1( a) and II:1(b) of the GATT 1994 because they result 
in less favourable tariff treatment to imports of cer tain flat panel display devices than that provided 
for these products under the EC Schedule, and becau se the tariff treatment provided is in excess of 
that provided for in the EC Schedule. In the join t Panel request, the complainants indicate that the 
identified measures at issue cover "certain flat pane l displays using LCD technology that are 'capable 
of reproducing video images from a source other than  an automatic data-processing machine'", as well 
as "flat panel displays with certain attribut es, including digital visual interface (DVI)". 184 
7.119  The complainants argue, in their Joint Panel Re quest, that pursuant to commitments made in 
the ITA, the European Communities is obliged to provide duty-free tr eatment to flat panel display 
devices. In particular, the complainants allege that  certain flat panel display devices are covered by 
                                                      
183 Panel Report on China - Auto Parts , para. 7.540 (emphasis added).  That panel concluded that 
"Article 21(2) of Decree 125 has an element that would n ecessarily lead to a result th at 'a chassis fitted with 
engines' within the scope of tariff heading 87.06 is cl assified as a complete motor vehicle and consequently 
assessing them at the tariff rate applicable to a motor vehicle inconsistently with China's concessions contained 
in the tariff headings of China's Schedule".  See Panel Report on China - Auto Parts , para. 7.588. 
184 Joint Panel request, WT/DS375/8, 376/8, DS377/6, p. 3.  WT/DS375/R 
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  the duty-free concession set forth in the narrative description "Flat panel display devices (including 
LCD, Electro Luminescence, Plasma, Vacuum-Fluorescence and other technologies) for products falling within this agreement, and parts thereof", lo cated in the Annex to the EC Schedule, regardless 
of which tariff line the products are classi fied under in the EC combined nomenclature.
185 Second, the 
complainants allege that certain flat panel disp lay devices are covered by the duty-free concession as 
"[i]nput or output units...Other" in tariff item numb er 8471 60 90 in the EC Schedule. According to 
the complainants, despite these duty-free concessions, the challenged measures require that particular 
flat panel display devices which have a DVI connect or, or are capable of reproducing video images 
from a source other than an auto matic data-processing machine, be classified under tariff item number 
8528 59 10 or 8528 59 90, which carry a 14 per cent ad valorem  duty. The application of this 14 per 
cent duty on imports that they consider should be granted duty-free treatment is the essence of the 
complainants' claim. The complainants reject th at the suspension of the collection of duties on 
specific flat panel displays pursuant to what they  allege to be a temporary measure, resolves the 
matter.186 
7.120  The European Communities submits that the products referred to by the complainants are 
new "multifunctional" products for which there is no "specific heading". Thus, these monitors had to 
be classified on a case-by-case basis, considering their "specific characteristics.187 Consequently, the 
European Communities rejects the co mplainants' Article II claims.  To  the extent the Panel considers 
that a product were in an individual case to be tr eated as duty-free, the European Communities argues 
that the chance of a breach of Article II woul d be unlikely, because the European Communities 
suspends the application of duties which, it argu es, reduces the likelihood that customs duties have 
been "unduly levied".188 
7.121  The task before the Panel, therefore, is to de termine: (a) the scope of duty-free treatment in 
the EC Schedule; (b) whether the products identified by the complainants fall within the scope of the 
duty-free tariff concession; (c) whether the challenge d measures result in the imposition of duties on 
the products at issue in excess of those provided for in the EC Schedule; and (d) whether the measures 
at issue result in less favourable treatment of the products at issue than that provided for in the EC 
Schedule. 
7.122  In light of the approach we have outlined above, we will first identify the measures and 
products at issue.  This is particularly impor tant as the European Co mmunities argues that the 
complainants have failed to sufficiently identify what products should receive duty-free treatment in 
order to demonstrate a violation of WTO commitments based on the measures at issue.189   
1. Preliminary Issues 
7.123  During these proceedings, the European Communitie s has raised various issues with respect 
to the complainants' claims.190  The European Communities has ar gued that one of the challenged 
                                                      
185 Regarding the complainants' views on the location of the concession, see paras. 7.219 - 7.226 below. 
186 Joint Panel request, WT/DS375/8, 376/8, DS377/6, pp. 2-3. 
187 European Communities' first written submission, para. 92. 
188 European Communities' first written submission, paras. 94, 62-63, 169; European Communities' 
response to Panel question No. 23. 
189 European Communities' first written submission, para. 32. 
190 We note that the European Communities has not alleged particular violations of Article 6.2 of the 
DSU or the Panel's terms of reference, but instead alleges that the complainants have failed to make a "prima 
facie" case. See European Communities' first written subm ission, para. 32.  Nevertheless, the Panel considers it 
appropriate to address issues raised by the European Communities, as well as additional issues that go to the 
Panel's terms of reference at the outset. These issues are enumerated in paragrap h 7.123 of these Reports. WT/DS375/R 
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  measures was not legally binding under EC law.  In  addition, the European Communities has argued 
that several measures are no longer applicable in pr actice and are therefore irrelevant to the Panel's 
analysis.  Otherwise, the European Communities cons iders that the complainan ts' failed to identify the 
product or products at issue or aspects of the measur es at issue in sufficient detail for the European 
Communities to defend itself and for the Panel to rule on the matter.  Finally, the European 
Communities has asserted that the complainants fa iled to identify "with the necessary clarity" the 
obligation of which the European Comm unities is allegedly in breach.   
7.124  In addition, there is a question of whether the complainants' reference to any amendments or 
extensions and any related implementing measures was sufficient to bring within the Panel's terms of 
reference the continuation of a duty suspension on impor ts of particular flat panel display devices, and 
versions of the CN adopted by the European Comm unities subsequent to the consultations request and 
establishment of this Panel. 
7.125  The Panel will address each of these issues in turn.  We note that the Appellate Body has 
explained that together the identification of the sp ecific measures at issue and the legal basis of the 
complainants comprise the "matter referred to the DSB" which forms the basis for a panel's terms of 
reference under Article 7.1 of the DSU.
191  
7.126  One of the essential purposes of the terms of refe rence is to establish the jurisdiction of the 
panel by defining the precise claims at issue in the dispute.192  The Appellate Body has also observed 
that the vesting of jurisdiction in a panel is a fu ndamental prerequisite for lawful panel proceedings.193  
Therefore, we must address these issues before we can proceed to address the substance of the 
complainants' claims. 
7.127  As the joint Panel request serves as the basis for the terms of reference of this Panel194, we 
will start our analysis by first setting forth th e relevant text of the joint Panel request. 
(a) The measures at issue specifically  identified in the Panel request 
7.128  In their joint Panel request195, the complainants identified the relevant EC measures at issue 
as follows: 
"Customs authorities of EC member States impose duties on flat panel displays. The 
measures at issue through which they do so include: 
1. Council Regulation (EC) No. 493/2005 of 16 March 2005; 
                                                      
191 Appellate Body Report on Guatemala – Cement I , paras. 69-76. 
192 Appellate Body Report on Brazil – Desiccated Coconut , DSR 1997: I, p. 186. 
193 Appellate Body Report on Mexico – Corn Syrup (Article 21.5 – US) , para. 36. 
194 We recall, as set forth in para. 1.6 above, the Dispute Settlement Body (DSB) established a panel in 
the present dispute in accordance with Article 6 of  the DSU with the following terms of reference: 
"To examine, in the light of the relevant provisions in the covered agreements cited by the parties to the dispute, the matter referred to the DSB by the United States, Japan and the 
Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu in document 
WT/DS375/8, WT/DS376/8 and WT/DS377/6, and to make such findings as will assist the DSB in making the recommendations or in giving the rulings provided for in those 
agreements." 
See also Constitution of the Panel Established at the Request of the United States, Japan, and the 
Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu, WT/DS375/9, 376/9, DS377/7, p. 1. 
195 See para. 2.2 above.  WT/DS375/R 
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  2. Commission Regulation (EC) No. 634/2005 of 26 April 
2005; 
3. Commission Regulation (EC) No. 2171/2005 of 23 
December 2005; 
4. Council Regulation (EEC) No. 2658/87 of 23 July 1987 on 
the tariff and statistical nom enclature and on the Common 
Customs Tariff, including all annexes thereto, as amended;
4 
and 
5. Explanatory Notes to the Combined Nomenclature of the 
European Communities, 2008/C 133/01 (May 30 2008), alone or in combination with Council Regulation (EEC) No. 2658/87 of 23 July 1987, 
as well as any amendments or extensions and any related or implementing measures.
5  
__________ 
4 Including amendments adopted pursuant to Commission Regulation No. 1214/2007 of 20 
September 2007 
5 Including the actual application by customs authorities of EC member States of a 14% 
customs duty on imports of certain flat panel displays."196 
7.129  The European Communities has not  contested the complainants' specific identification of the 
measures in its joint Panel request.   
(b) Are versions of the CN adopted by the European Communities subsequent to the 
consultations request and establishment of this Panel within the Panel's terms of reference? 
7.130  We note that the complainants' joint Panel request refers to the Council Regulation 
No. 2658/87, as amended, as one of the measures at issue in this dispute.197  Footnote 4 of the joint 
Panel request notes that the Council Regulati on includes amendments adopted pursuant to 
Commission regulation No. 1214/2007, which contains the CN2008198.  In addition, the complainants 
identified as part of the measure at issue "any amendments or extensions and any related or implementing measures".
199   
7.131  Pursuant to Article 12 of C ouncil Regulation No. 2658/87, th e Commission adopts each year 
by means of a regulation a complete updated version of the CN200 together with the corresponding 
rates of duty of the CCT, as an amendment to Annex I of Council Regulation No. 2658/87. 
                                                      
196 Joint Panel request, WT/DS375/8, 376/8, DS377/6, p. 2. 
197 Joint Panel request, WT/DS375/8, 376/8, DS377/6, p. 2. 
198 Commission Regulation No. 1214/2007, Article 1 (Exhibit JPN-3). 
199 Joint Panel request, WT/DS375/8, 376/8, DS377/6, p. 2. 
200 As discussed in paragraphs 7.39-7.45 above,  the European Communities established a goods 
nomenclature, known as the Comb ined Nomenclature, or CN, which contains HS nomenclature and 
subheadings, as well as preliminary provisions, additiona l section or chapter notes and footnotes relating to CN 
headings. WT/DS375/R 
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  7.132  Since the complainants filed their joint Pane l request on 19 August 2008, the CN has been 
updated twice: the CN2009 was published in Commi ssion Regulation No. 1031/2008 of 19 September 
2008
201, and the current CN2010 was published in Commission Regulation No. 948/2009 of 
30 September 2009.   
7.133  The question arises whether versions of th e CN – such as the CN2009 and CN2010 – which 
were promulgated subsequent to the panel request ma y be considered by the Panel.  We note that the 
complainants and the European Communities indicated  that they considered the CN2009 version to be 
the relevant measure at issue.202  The United States and Chinese  Taipei submit that Council 
Regulation No. 2658/87 is regularly amended to include subsequent amendments, and thus, the 
relevant measure should be the most recent update.  The United States, in particular, submits that 
Council Regulation No. 2658/87 is regularly am ended and reissued without substantive 
modification.203 
7.134  We recall that the Appellate Body has held th at "panels cannot simply ignore issues which go 
to the root of their jurisdiction – that is, to their au thority to deal with and dispose of matters.  Rather, 
panels must deal with such issues – if necessary,  on their own motion – in or der to satisfy themselves 
that they have authority to proceed."204   
7.135  It is well settled that the identification of the specific measures at issue and the provision of a 
brief summary of the legal basis of the complaint in  the panel request comprise the "matter referred to 
the DSB", which forms the basis for a panel's te rms of reference under Article 7.1 of the DSU.205  
Therefore, to satisfy ourselves whether we have th e authority to proceed to make findings on the 
version of the CN currently in force, we must ex amine whether that version is included within our 
terms of reference because it was identified as a speci fic measure at issue in the joint Panel request. 
7.136  The Appellate Body has explained that, pursuant to Article 6.2 of the DSU, a panel request 
must be "sufficiently precise"206 in the identification of the measures at issue such that what is referred 
to adjudication by a panel may be discerned from the panel request.207    
7.137  Regarding amendments to measures, the Appellate Body in Chile – Price Band System  stated 
that: 
"[T]he demands of due process are such that  a complaining party should not have to 
adjust its pleadings throughout dispute settleme nt proceedings in order to deal with a 
disputed measure as a 'moving target'. If the terms of reference in a dispute are broad 
enough to include amendments to a measure – . . .  – and if it is necessary to consider 
an amendment in order to secure a positive solu tion to the dispute – . . .  – then it is 
                                                      
201 Exhibits US-11; JPN-20; TPKM-21. 
202 Parties' responses to Panel question No. 65.   
203 United States' and Chinese Taipei's re sponses to Panel question No. 65.   
204 Appellate Body Report on Mexico – Corn Syrup (Article 21.5 – US) , paras. 36 and 53. 
205 Appellate Body Report on US – Zeroing (21.5 - Japan) , para. 107; Appellate Body Report on 
Guatemala – Cement I , para. 72; Appellate Body Report on US – Carbon Steel , para. 125; and Appellate Body 
Report on US – Continued Zeroing , para. 160. 
206 Appellate Body Report on US – Zeroing (21.5 - Japan) , para. 108; Appellate Body Report on 
US - Continued Zeroing , para. 161; Appellate Body Report on US – Carbon Steel , para. 126; Appellate Body 
Report on EC – Bananas III , para. 142. 
207 Appellate Body Report on US – Continued Zeroing , para. 168.  WT/DS375/R 
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  appropriate to consider the measure as amended in coming to a decision in a 
dispute."
208 
7.138  The Appellate Body examined in  that case the relationship between the original measure and 
the subsequent amendment to that measure, and de termined that the law in question "amend[ed]" 
Chile's price band system "without changing its essence ".209 
7.139  In light of the Appellate Body's ear lier enunciations in its reports on Chile – Price Band 
System and EC – Chicken Cuts , we understand that a panel's terms of reference may be considered to 
include "amendments" to measures that are listed in the panel request as long as the terms of reference 
are broad enough, and second, the new measure do es not "change the essence" of the original 
measures included in the request or have legal impli cations overly different from those of the original 
measures. Moreover, it may be releva nt to consider whether the inclus ion of any amendments within a 
panel's terms of reference is necessary to secure a po sitive solution to the dispute.  We consider the 
approach set forth above to be relevant to the issue before us.   
Whether the Panel's terms of reference are br oad enough to include subsequent amendments 
to the CN  
7.140  We note that the complainants incorporated the phrase "any amendments or extensions and 
any related or implementing measures" into their join t Panel request.  We recall that the complainants, 
in the joint Panel request, identified as the speci fic measure at issue Council Regulation No. 2658/87, 
"as amended " (emphasis added).  While we do not consider that the mere incantation of the phrase 
"any amendments or extensions a nd any related or implementing me asures" in a panel request will 
permit Members to bring in measures that were clearly not contemplated in the Panel request, it may be used to refer to measures not yet in force or c oncluded on the date of the panel request, or measures 
that the complainants were not yet aware of, su ch as government procedures not yet published that 
have the same essential effect as the measures that were  specifically identified.  This is to prevent the 
possibility that the procedural requirements of WT O dispute settlement result in a situation where 
measures could completely evade review.
210  This is especially true with the type of measures we have 
before us, which are amended annually.211   
                                                      
208 Appellate Body Report on Chile – Price Band System , para. 144. 
209 Appellate Body Report on Chile – Price Band System , para. 139 (emphasis original).  The Appellate 
Body in EC – Chicken Cuts considered the relevance of its earlier findings in its report in 
Chile - Price Band System , in particular the notion of changing the essence  of the original measure.  In 
considering two measures that had been enacted subsequent to the panel request, the Appellate Body in 
EC - Chicken Cuts  noted that the two measures made no reference to the initial measures in that request, and the 
initial measures continued to be in effect.  For these reasons, and having determined that the subsequent 
measures had legal implications different from those of the two original measures, the Appellate Body 
concluded that the measures were not, in essence, the same and could not be considered "amendments" as were 
the measures at issue in Chile –Price Band System .  The Appellate Body additionally concluded that failure to 
consider the two subsequent measures in the Panel's terms of reference "would not hinder a positive resolution 
of this dispute"  (Appellate Body Report on EC – Chicken Cuts , paras. 155-162). 
210 Appellate Body Report on Chile – Price Band System , paras. 139 (also para. 7.175 below) and 144. 
211 Appellate Body Report on US – Zeroing (21.5 - Japan) , para. 116.  In that dispute, the Appellate 
Body concluded that a periodic review could be identified for purposes of Article 6.2 of the DSU through the 
use of the phrase "subsequent closely connected measur es".  The Appellate Body explained that the phrase 
"subsequent closely connected measures " in the complainant's panel request was sufficiently precise to identify 
the review in question, which "formed part of a continuum of events" (Appellate Body Report on 
US - Zeroing (21.5 - Japan) , para. 116). WT/DS375/R 
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  7.141  As noted above, pursuant to Article 12 of this Council Regulation No. 2658/87, Annex I, 
which contains the CN, is updated annually and the latest version supersedes the prior one.  In our 
view, the Panel's terms of referenc e are broad enough to include sub sequent amendments to the CN.  
The complainants' reference to Council Regulation No 2658/87 "as amended" and their use of the 
phrase "any amendments or extensions and any re lated or implementing measures" in the Panel 
request are sufficiently broad to account for the possi bility of amendments or extensions of the CN.
212  
We will therefore consider whether subsequent amendments change the essence of the preceding 
version of Council Regulation No. 2658/87 which was identified in the joint Panel request. 
Whether subsequent amendments to Council Re gulation No. 2658/87 change the essence of 
the version of that was identified by the complainants  
7.142  We note that subsequent amendments to the Co uncil Regulation No. 2658/87 strictly prolong 
its period of application without modifying any of th e terms or headings at issue in this dispute. 
Accordingly, we conclude that subsequent amen dments, including the 2008- 2010 versions, do not 
change the essence of the version of the CN (2007) set forth in Council Regulation No. 2658/87 that 
was identified by the complainants. Therefore, we find that the subsequent amendments do not change 
the essence of the version of Council Regulation No . 2658/87 which was identified in the joint Panel 
request.   
7.143  Finally, we will consider the implications of these measures for the u ltimate resolution of the 
matter before us. 
Whether the inclusion of any amendments within  a panel's terms of reference is necessary to 
secure a positive solution to the dispute  
7.144  We recall that the complainants have requ ested the Panel to determine whether their 
commerce has been accord ed treatment less favourable than that provided in the EC Schedules, 
inconsistently with the obligations of the EC and its member States under Article II of the 
GATT 1994. The complainants argue that the Europ ean Communities fails to accord tari ff treatment 
that is no less favourable than that provided for in its Schedule.213 
7.145  As noted above, subsequent amendments to C ouncil Regulation No. 2658/87 (set forth in the 
Annex) maintain the same terms and headings as th e measure identified by the complainants in their 
joint Panel request. Therefore, we consider that  a ruling that takes into consideration Council 
Regulation No. 2658/87, as amended, which includes in Annex I the currently applicable CN214, 
would aid in the settlement of the dispute.   
                                                      
212 In this respect, we recall, for example in Chile – Price Band System , the panel request referred to 
"Law 18.525, as amended by Law 18.591 and subsequently by Law 19.546, as well as regulations and 
complementary provisions and/or amendments".  The Appellate Body considered that language to reflect a 
"broad scope of the Panel request in order to include a subsequent amendment within the Panel's terms of reference".  Appellate Body Report on Chile – Price Band System , para. 135. 
213 Joint Panel request, WT/DS375/8, 376/8, DS377/6, p. 3. 
214 We note that the complainants have presented the CN2009 as Exhibits US-11; JPN-20; TPKM-21.  
The Panel does not have in the record the CN2010.  We understand however that there has been no change to 
the relevant CN codes in the latest version of the CN.    WT/DS375/R 
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  Conclusions
 
7.146  For the foregoing reasons, we conclude that  Council Regulation No. 2658/87, as amended, 
which includes in Annex I the currently applicable CN, is the specific measure at issue in this dispute 
and was properly identified as such  in the joint Panel request. 
(c) Is CNEN 2008/C 133/01 a measure that can be subject to WTO dispute settlement? 
(i) Arguments of the parties 
7.147  The European Communities  argues that CNEN 2008/C 133/01215 is not "legally binding" in 
the European Communities' legal order and cannot alter the scope of the CN.216 In its view, CNENs, 
like HSENs, "are an important aid for interpreting the scope of the various tariff headings but do not 
have legally binding force …"217. The European Communities argu es that CNENs are not "like a 
regulation", but "reflect a Commission's view on how  the CN should be interpreted and applied with 
respect to a certain product or a category of product at issue".218  In this respect, it argues that there is 
no mandatory language in the CNENs that precludes the exercise of discretion in relation to a monitor 
identified with all of its relevant objective characteristics.219  To what extent CNENs can create 
expectations among the public and private actors, the European Communities argues, will depend on 
the formulation of each relevant CNEN including the "clarity of the Note or parts thereof" and "whether the content of the Note is in accordance with the wording of the relevant subheading and the 
general interpretative rules and Section and Chapter Notes that are applicable  for its interpretation".
220  
The European Communities explains that the EC member States, when classifying imported goods, 
have to base their classification on the CN and the interpretative rules therein (GIR 1-6) and not on 
the CNENs.  The European Communities submits that if some EC member States refer to a CNEN, "it 
is merely to inform the economic operator that with respect to its product, the Commission has 
already conducted the interpretative exercise and taken a non-binding view that the CN should be 
interpreted in a particular way".221  The European Communities further explains that the CNENs only 
                                                      
215 Throughout these Reports we will use the abbreviation "CNENs" to indicate Explanatory Notes to 
the Combined Nomenclature in general, as a group.  Th e abbreviation "CNEN" will be used with reference to a 
particular Explanatory Note to the Combined Nomenclature. 
216 European Communities' first written submission, paras. 312-314; European Communities' second 
written submission, para. 55 (referring to European Co urt of Justice (Kamino), paras. 47-49 (Exhibit TPKM-
52)); European Communities' second oral statement, paras. 27-34. 
217 European Communities' second written submission, para. 55; European Communities' second oral 
statement paras 29-30 (referring to European Court of Justice (Kamino), para. 47 (Exhibit TPKM-52)). 
218 European Communities' response to Panel question No. 23; European Communities' response to 
Panel question No. 91. 
219 European Communities' first written submission, paras. 66 - 69; European Communities' second 
written submission, para. 55; European Communities' second oral statement pa ras. 29-35; European 
Communities' response to Panel question No. 122.  It ar gues that, simply because "a given sentence" in the 
CNEN appears to be written w ith language that sounds mandatory does not mean that a mandatory rule exists in 
the EC legal order (European Communities' second oral statement, para 35).   
220 European Communities' response to Panel question No. 121. 
221 European Communities' first written submission, para. 315; European Communities' second written 
submission, para. 55. In its response to Panel question No. 91, the European Communities further clarified that 
"with some simplification, the flexibility which the Panel asks about can be described as a flexibility to take a 
view different from that expressed by a non-binding opinion on the interpretation of a binding legislation, with 
the caveat that the authority expressing the non-binding opinion can try to convince th e Member State that it is 
right before the court.".  The European Communities al so mentioned that it cannot be excluded that national 
customs authorities would classify a given product diff erently from the CNEN but that "[i]n such a case, WT/DS375/R 
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  come into play at the eight-digit level of the CN
222, and that "the CNEN serves to confirm the 
classification made on the basis of the CN, but it is not itself the legal reason and basis for that classification".
223  To the extent a conflict arises betw een the terms of the CNEN and relevant 
headings in the CN, the European Communities argu es that the CNEN is inapplicable and customs 
officials are obliged not to apply it.224   
7.148  Notwithstanding its views on the legal value of CNENs, the European Communities argues 
that it is in the process of amending the relevant parts of the CNENs to be completed in September 2009.
225    
7.149  The complainants  argue that CNENs set forth rules and norms that are intended to have 
general and prospective application,  that have legal effect and ensure uniformity of administration of 
the CN.  Moreover, they argue that CNENs provide administrative guidance and create expectations among the public and among private actors that they will be applied.
226   
7.150  Chinese Taipei  argues that despite the repeated clai ms of the European Communities that 
CNENs are not legally binding, an examination of th eir legal status confirms that they are "in fact" 
legally binding.227 As the United States and Chinese Taipei note, just because CNENs cannot alter the 
scope of the CN itself does not mean that EC cu stoms authorities would be free to disregard them.228  
First, a BTI will cease to exis t when contrary to a CNEN.229  Second, certain statements of the Chair 
of the Customs Code Committee prove that EC customs authorities must follow CNENs.230 Third, EC 
member States that deviate from the content of a CNEN, and collect less import duties as a result 
thereof, are considered liable and the Commi ssion has the option of instituting infringement 
proceedings against such EC member States.231 Fourth, since CNENs are "tools for ensuring a 
uniform classification practice within the EC", they w ould not be able to ensure such uniformity if EC 
                                                                                                                                                                     
however, there is a range of tools available to unify the classification" (European Communities' response to 
Panel question No. 23). 
222 See, e.g., European Communities' response to Panel question No. 83 (explaining the classification 
exercise for set top boxes, a nd the use of the CNEN).   
223 European Communities' second oral statement, para. 53 (cross-referencing with the European 
Communities' response to Panel question No. 83). 
224 European Communities' first written submission, para. 98; European Communities' second oral 
statement, paras. 38-43; European Communitie s' response to Panel question No. 122. 
225 European Communities' response to Panel questions Nos. 60 and 110.  The European Communities 
submits that draft changes to CNEN 2008/C 133/01 have already been prepared by the services of the 
Commission and has been the subject of the necessary inter-service consultations, although the specific content has not been revealed. 
226 Complainants' responses to Panel question No. 121. 
227 Chinese Taipei's second written submission, para. 132. 
228 The United States makes a similar point (see Un ited States' second written submission, para. 35). 
229 United States' second written submission, para. 35;  Japan and Chinese Taipei's responses to Panel 
question No. 121.  Japan argues that, like a regulation, a CN EN can result in the reclassification of products into 
a different tariff line in the CN, and th e application of a different duty rate. 
230 In particular, the United States and Chinese Taipei referred to the statements of the Chairman of the 
Customs Code Committee during the 413th, the 432nd and the 433rd meetings: see paras.7.999-7.1008 below. 
231 Chinese Taipei's response to Panel question No. 121 (in particular, referring to the Customs Code 
Committee's document on the Nature and Legal Value of Guidelines , 5.4.2006 (Exhibit TPKM-85, para. 13) 
which explains that the Commission can initiate infringem ent proceedings against an administration for breach 
of Article 10 of the EC Treaty, accord ing to which the Member States must  facilitate the achievement of the 
Community's tasks and abstain from any measure which could jeopardise the attainment of the objectives of the 
EC Treaty).  WT/DS375/R 
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  member States were free to decide whether to apply them or not.
232  Further, the complainants submit 
that CNENs are explicitly referenced in legisla tion implementing the EC domestic nomenclature, and 
have been recognised by the Court of Justice as an  important aid to the interpretation of Community 
customs law.233  Moreover, it notes that CNENs may be cited before the Commission or national 
courts.234   
7.151  Japan  and Chinese Taipei argue that CNENs bind officials implementing EC customs tariffs 
in member States to ensure that they are admini stered in a uniform manner within the EC customs 
territory.235 Chinese Taipei argues that CNENs will not have legal effect only if the Commission 
expressly amends the CNENs or the European Court of Justice declares the CNEN contrary to the 
wording of the heading or Chapter or Section Notes.236   
7.152  The United States  argues that the European Communiti es has not offered evidence that the 
content of the CNENs has changed as a result of ruli ngs before the European Court of Justice or for 
other reasons.237  The United States submits that evidence of  applications of CNEN by EC customs 
authorities demonstrated they are binding.238  The United States further argues that the European 
Communities has relied on CNENs to assert that it has complied with DSB recommendations and rulings regarding uniformity of administration.
239 
(ii) Consideration by the Panel 
7.153  The Panel acknowledges statements by the Europe an Court of Justice that CNENs "are an 
important aid for interpreting the scope of the vari ous tariff headings but do not have legally binding 
force...".240  The European Communities also argues that  EC member States may depart from the 
CNEN where they consider that it conflicts with the CN itself.  In other words, the CNENs cannot 
amend or alter the CN.  The argument by the Eu ropean Communities appear s to be that because 
CNENs are not "binding" or "mandatory", and becau se EC Member States have "discretion" not to 
apply them, the CNENs cannot form the basis of an  "as such" breach of th e European Communities' 
obligations. 
7.154  As an initial point, the Panel does not understa nd the European Communities to argue that 
CNENs are not challengeable under WTO dispute settlement. That is, we do not understand the 
European Communities to contest that CNENs are "act s…attributable to a Member". In our view, the 
issue is rather whether they can be challenged on an "as such" basis.  In this regard, the Panel recalls 
that "an 'as such' claim challenges laws, regulations , or other instruments of a Member that have 
general and prospective application, asserting that  a Member's conduct — not only in a particular 
                                                      
232 Chinese Taipei's second written submission, paras. 61-70 (adding that such "infringement 
proceedings" would be based on Article 10 of the EC Treaty); and paras. 132 and 261-268. 
233 Complainants' responses to Panel question No. 121. 
234 Chinese Taipei's response to Panel question No. 121. 
235 Japan and Chinese Taipei's responses to Panel question No. 121. 
236 Chinese Taipei's second written submission, paras. 132-134. 
237 See, for instance, United States' second written subm ission, paras. 73-76; Un ited States' response to 
Panel question No. 110. 
238 United States' first written submission, para. 127; United States' second written submission, 
paras. 69, 72; United States' comment on European Communities' response to Panel questions Nos. 121-122. 
239 United States' response to Panel question No. 18 ; United States' second written submission, para. 35, 
fn. 65; United States' response to Panel question No. 121. 
240 European Communities' second written submission, pa ra. 55 (referring to European Court of Justice 
(Kamino), paras. 47-49 (Exhibit TPKM-52), European Court of Justice (DFDS BV), para. 28 (Exhibits US-16; 
TPKM-37); European Court of Justice (Clees ), para. 12 (Exhibits EC-57; US-17)). WT/DS375/R 
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  instance that has occurred, but in future situations as well — will necess arily be inconsistent with that 
Member's WTO obligations."
241  It flows from this that, in ge neral, measures challenged "as such" 
should have general and prospective application, and "necessarily" result in a breach of WTO 
obligations. The Panel is mindful in this regard of  the so-called mandatory/discretionary distinction 
applied in a number of GATT cases prior to the establis hment of the WTO, and in several cases since.  
We are also mindful that the Appellate Body h as cautioned against the mechanistic application of 
such a distinction.242  We also recall the following statement by the Appellate Body with respect to the 
Sunset Policy Bulletin (SPB) of th e United States, at issue in US - Oil Country Tubular Goods Sunset 
Reviews : 
"The United States has explained that, within  the domestic legal system of the United 
States, the SPB does not bind the USDOC and that the USDOC 'is entirely free to depart from [the] SPB at any time'.  However,  it is not for us to opine on matters of 
United States domestic law.  Our mandate is  confined to clarifying the provisions of 
the WTO Agreement and to determini ng whether the challenged measures are 
consistent with those provisions. As noted by the United States, in US - Corrosion-
Resistant Steel Sunset Review , the Appellate Body indicated that 'acts setting forth 
rules or norms that are intended to have general and prospective application' are 
measures subject to WTO dispute settlement.   We disagree with the United States' 
application of these criteria to the SPB.  In our view, the SPB has normative value, as 
it provides administrative guidance and creates expectations among the public and 
among private actors.  It is intended to have general application, as it is to apply to all 
the sunset reviews conducted in the United States. It is also intended to have 
prospective application, as it is intended to  apply to sunset reviews taking place after 
its issuance.  Thus, we confirm - once agai n - that the SPB, as such, is subject to 
WTO dispute settlement."
243 
7.155  With this in mind, we move to consider th e European Communities' argument that CNENs, 
by their nature, are not binding or mandatory and therefore cannot breach the obligations at issue "as such".   
7.156  Before turning directly to this question, the Pa nel finds it useful to recall certain features of 
CNENs.  In this respect, we note the explanati ons from the European Communities that the CNENs 
are proposed and adopted by the Commission, follo wing discussion amongst the Commission and the 
customs authorities of the 27 EC member States in the Customs Code Committee.
244 In the European 
Communities' own words "[CNENs] reflect a Commission's view on how the CN should be interpreted and applied with respect to a certa in product or a category of product at issue".
245  In 
addition, the European Communities stated that CN ENs "constitute an important means of ensuring 
the uniform application of the Common Customs Tariff by the customs authorities of the Member 
States", and serve as "a valid aid to  the interpretation of the tariff".246  The European Court of Justice 
has stated that CNEN are "an important aid in the interpretation of the CN".247  Finally, the European 
                                                      
241 Appellate Body Report on US - Oil Country Tubular Goods Sunset Reviews , para. 172. 
242 Appellate Body Report on US - Corrosion Resistant Steel Sunset Reviews , para. 93. 
243 Appellate Body Report on US - Oil Country Tubular Goods Sunset Reviews , para 187 (original 
footnotes omitted). 
244 European Communities' first written submission, paras. 300-305. 
245 European Communities' response to Panel question No. 91. 
246 European Communities' second written submission, para. 69. 
247 European Communities' second written submission, para. 55; European Communities' second oral 
statement, paras. 29-30 (referring to European Court of Justice (Kamino), para. 47 (Exhibit TPKM-52)).  WT/DS375/R 
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  Communities has indicated that EC  member States "decide on the classification of products in 
individual cases" and that "in this role", they "consult" the CNENs.
248 We note, in addition, that the 
complainants have submitted BTIs issued by EC  member States in support of their claims under 
Article II of the GATT 1994, some of which identif y the CNENs as a "classification justification".249  
The complainants have also argued that CNEN can have legal consequences for BTIs, such that a BTI 
becomes invalid where it is determined to contradict guidance set forth in a CNENs.250  Further, they 
have argued that "if a Member State deviates in its  classification practice from the approach taken in a 
CNENs, the Commission can institute infringement pr oceedings before the European Court of Justice 
against such a Member State".251    
7.157  In line with the Appellate Body statements above , the Panel does not consider that the status 
of CNENs under EC domestic law is determinative.  In addition, while we note the statement of the 
European Court of Justice that CNEN are not "legal ly binding", we understand this to relate, at least 
in part, to the fact that CNEN cannot amend or alte r the CN. In the Panel's view, the legal effect of 
CNEN on the CN is not the primary issue before it.  The issue before it is whether CNEN set forth 
rules or norms that are intended to have general a nd prospective application, and whether CNEN have 
normative value in providing administrative guidance,  and create expectations among the public and 
among private actors.  Stated another way, the issu e is whether CNEN are "a uthoritative" such that 
"per se" requirements set out in the CNEN could va lidly form the basis of an "as such" claim of a 
breach of Article II of the GATT.  
7.158  We find that CNEN do meet this standard.  It is clear that CNENs are important in enabling 
the European Communities to main tain a uniform application of the Common Customs Tariff within 
its territory.  Although the European Communitie s has noted that CNENs do not "preclude the 
exercise of discretion" by member State customs au thorities, it is apparent that there is a clear 
expectation that such discretion will be exerci sed in a certain fashion and that infringement 
proceedings may apply in instances where such discreti on is not so exercised.  The Panel also finds it 
relevant that CNENs are issued by the Commissi on, a body with undisputed authority within the 
European Communities for ensuring the uniform appli cation of the Customs Code Tariff, and with the 
power to challenge interpretations  not consistent with its own.  Indeed, according to Regulation 
No. 2658/87, as amended, the Commi ssion establishes and manages the CN.252  In addition, according 
to its Article 9, the Commission adopts Explanatory Notes.  Moreover, the Panel notes that BTIs will 
cease to be valid where they are no  longer compatible "at Community  level" with "the explanatory 
notes [...] adopted for the purposes of interpreting the rules".253   
7.159  In US – Underwear , the Appellate Body upheld the Panel's interpretation that an 
administrative order was of "general application"  "to the extent that the restraint affects an 
unidentified number of economic operators, in cluding domestic and foreign producers."254 In line 
therewith, we consider that the CNEN amendments at issue in this dispute are of "general application" 
because the application of a CNEN is not limited to a single import or a single importer.  Rather, they 
                                                      
248 European Communities' response to Panel question No. 23. 
249 See Exhibits US-28 and TPKM-61 referring to French BTIs that expressly mention as classification 
justification a "Décision du Comité des douanes lors de la 420ème session des 18, 19 et 20 avril 2007". 
250 See Article 12(5)(a)ii of the CCC (Exhibits US-19;  TPKM-16), which provid es that BTI shall cease 
to be valid "where it is no longer compatible with the in terpretation of one of the nomenclatures referred to in 
Article 20(6): at Community level, by reason of amendments to the Explanatory notes to the combined nomenclature". 
251 European Communities' response to Panel question No. 91. 
252 See Council Regulation No. 2658/87, Articles 1; 2 and 6 (Exhibits EC-49; US-13; TPKM-5). 
253 See Article 12(5)(a)ii of the CCC (Exhibits US-19; TPKM-16). 
254 Panel Report on US - Underwear , para. 7.65. WT/DS375/R 
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  set forth rules or norms that are intended to have general and prospective application.  The objective 
of the CNEN is to ensure the uniform a pplication of the Common Customs Tariff to all products 
falling under a specific CN code upon importation into the EU.  The CNEN create legitimate 
expectations among the public and among private actors.   
7.160  We therefore conclude that CNEN 2008/C 133/ 01 identified by the complainants in this 
dispute may be challenged "as such".  We consider its effects in paragraph 7.246 et seq.  below. 
(d) Are Commission Regulation Nos. 634/2005 and 21 71/2005 outside the Panel's jurisdiction 
because they are no longer effectively applicable? 
(i) Arguments of the parties 
7.161  The European Communities  argues that Commission Regulation Nos. 634/2005 and 
2171/2005 provide for classification of certain LCD monitors within CN codes 8471 60 80 and 
8528 21 90 as the CN codes existed at the time in li ght of the HS2002.  However, it argues that these 
codes were replaced in 2007 by CN codes 8528 41 00 and 8528 59 90.  Because CN codes 8471 60 80 
and 8528 21 90 no longer exist, the European Comm unities alleges that Commission Regulation Nos. 
634/2005 and 2171/2005 "have effectively lost their relevance".  The Europ ean Communities states, 
in addition, that it is in the process of repealing or replacing them as appropriate for reasons of legal 
certainty.
255 
7.162  The complainants  argue that Commission Regulation Nos. 634/2005 and 2171/2005 are both 
still valid and have legal effect.256 The complainants argue that Commission Regulation Nos. 
634/2005 and 2171/2005 w ould only cease to be valid if they were expressly revoked by the 
Commission or expressly annulled by the European C ourt of Justice. They argue that the European 
Communities has not provided evidence to suggest otherwise, nor has a ruling by the European Court of Justice in Kamino demonstrated that the measures were  amended or revoked. Moreover, the United 
States  and Chinese Taipei  argue there is no implied annulment under EC Community law or 
annulment by analogy. The United States argues that the mere fact that the HS codes have changed 
does not under EC law prevent customs authorities from relying on regulations that predated the 
change in the codes. Japan  argues that the measures are still valid "as part of the legal context in 
which the EC would presumably interpret its more recent measures ...unless and until the EC presents sufficient evidence that the older measures have been  formally withdrawn". Finally, the United States 
and Chinese Taipei argue that Article 12(5) of the CCC provides a further basis to conclude that the 
classification regulations continue to have effect. Th ey allege that this provision states that BTI will 
automatically cease to be valid where they conflic t with a classification regulation, an explanatory 
note or a judgment of the European Court of Justice.   As a result, absent formal annulment, revocation 
or amendment, traders cannot rely on conflicting BTI.
257     
(ii) Consideration by the Panel 
7.163  The Panel is faced with two questions. First, what is the precise status of Commission 
Regulation Nos. 634/2005 and 2171/2005? Second, if  the implementation of the CN2007 did indeed 
supersede and render ineffective Commission Regula tions 634/2005 and 2171/2005, does this mean 
they can no longer be considered measures at issue in this dispute?  
                                                      
255 European Communities' first written submission, para. 95; European Communities' second written 
submission, para. 63. 
256 Complainants' responses to Panel question No. 18. 
257 Complainants' responses to Panel question No. 18.  WT/DS375/R 
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  7.164  We understand the European Communities' argume nt as follows:  the adoption of the CN2007 
resulted in these two measures becoming "e ffectively inapplicable in practice".
258 Accordingly, we 
understand the European Communities has requested th e Panel not to consider them. We first note 
that the European Communities does not disput e that Commission Regulation Nos. 634/2005 and 
2171/2005 were operative prior to implementation to the HS/CN2007. Additionally, although the 
European Communities has told the Panel that it w as in the process of repealing or replacing the 
measures, the European Communities has submitted no information to the Panel confirming whether 
this actually occurred.     
7.165  Regardless, if the formal repeal of the measure s did occur after the Panel was established and 
its terms of reference set, it w ould be within our discretion to decide how to take into account 
subsequent modifications or a repeal of the measures at issue.259  In exercising that discretion, we note 
that past panels have ruled on repealed or e xpired measures if those measures still had lingering 
effects after the repeal260 or if they thought such a ruling would aid in securing a positive resolution to 
the dispute as required by Article 3.7 of the DSU.261  Panels have also decided to make rulings on 
repealed or expired measures where the re spondent Member had not conceded the WTO 
inconsistency of the measure and the rep ealed measure could be easily re-imposed.262 
7.166  We note that there is no disagreement that  the complainants specifically identified 
Commission Regulation Nos. 634/2005 and 2171/2005 in the joint Panel request.  We also note that the complainants argue that the measures continue  to have lingering effect as evidenced by BTIs 
submitted by the complainants.
263  Additionally, the complainants continue to request a finding from 
the Panel on these measures and are of the belief that  a finding from the Panel on the consistency of 
these measures with the European Communities' obligations under the GATT 1994 would aid in 
securing a positive resolution of this dispute.  Fina lly, the European Communities has not argued that 
the envisioned repeal of these measures is because it c oncedes that they are inconsistent with its WTO 
obligations. For all the foregoing reasons, the Panel will proceed to make findings with respect to 
their WTO consistency.   
7.167  As noted above, the European Communities indicated  to the Panel that it intended to repeal 
the measures and that "DG TAXUD expects to be able to submit a draft to the Customs Code 
Committee for a vote in late September or the beginning of October [2009] at the latest"264; however, 
there is no evidence properly before the Panel as to whether that repeal actually took place.  In any 
event, we note that any repeal would have taken pl ace after the panel was established and its terms of 
reference were set.265   Therefore, the Panel considers that it may make recommendations with respect 
to these measures. 
                                                      
258 See paragraph 7.161 above. 
259 Appellate Body Report on EC – Bananas III (Article 21.5 – United States) , para. 270. 
260 Panel Report on US – Upland Cotton , paras. 7.122, 7.128; upheld in Appellate Body Report on 
US - Upland Cotton , para. 274. 
261 Panel Report on China – Publications and Audiovisual Products , para. 7.453. 
262 Panel Report on India – Additional Duties , paras. 7.69-7.70. 
263 See, for instance, United States' first written s ubmission, para. 127; United States' second written 
submission, paras. 69 and 72; United States' comment on European Communities' response to Panel questions Nos. 121-122. 
264 European Communities' response to Panel question No. 110; European Communities' response to 
Panel question No. 60. 
265 The Appellate Body has explained that it would be inappropriate for a panel to make 
recommendations with respect to measures that were repeal ed or expired prior to the establishment of the panel.  WT/DS375/R 
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  (e) Whether the Panel may consider the conti nuation of a duty suspension on imports of 
particular flat panel display devices subsequent  to the consultations request and establishment 
of this Panel? 
(i) Arguments of the parties 
7.168  The European Communities  submits that Council Regulation No. 179/2009 of 5 March 
2009
266, which it submits to have replaced Council Regu lation No. 493/2005, is the relevant measure 
for the Panel's consideration.267 
7.169  The United States  argues that the extension of the suspension under Council Regulation 
No.179/2009 should not be considered within the Panel's terms of reference because it was not "in 
effect" at the time the Panel was established.268 
(ii) Consideration by the Panel 
7.170  In their joint Panel request, the complainan ts identified Council Regulation No. 493/2005 as a 
measure at issue in this dispute.  This measu re expired on 31 December 2006, but was extended under 
Council Regulation No. 301/2007 until 31 December  2008.  These two regulations suspended the 
application of duties on "monitors with a diagonal measurement of the screen of 48,5 cm or less and 
with an aspect ratio of 4:3 or 5:4".269 
7.171  Council Regulation No. 179/2009 replaced Co uncil Regulation No. 301/2007.  This 
regulation suspends the application of duties on certain black and white  or other monochrome 
monitors, and certain colour monitors.  Council Regulation No. 179/2009 will expire on 31 December 
2010.270 
7.172  The complainants did not identify Council Regulation No. 301/2007 as a measure at issue in 
their joint Panel request, but they specifically referre d to it in their Panel request when alleging that 
the EC measures fail to accord tariff treatment that is  no less favourable than that provided for in the 
EC Schedules.271  None of the complainants argued that  Council Regulation No. 301/2007 is outside 
of the Panel's terms of reference.  Similarly, th e complainants did not identify Council Regulation No. 
179/2009 as a measure, in particular, because it had not yet been promulgated at the date of the Panel 
request.  However, the European Communities272 as well as Chinese Taipei273 have acknowledged 
Council Regulation No. 179/2009 in the context of their arguments.  Chinese Taipei argues that 
                                                                                                                                                                     
Appellate Body Report on US – Certain EC Products , para. 81; Appellate Body Report on US - Upland Cotton , 
para. 272; and Appellate Body Report on EC – Bananas III (Article 21.5 – Ecuador II) , para. 271. 
266 Council Regulation No. 179/2009 (Exhibit EC-9). 
267 European Communities' first written submission, para. 94. 
268 United States' second written submission, paras. 76 and 79. 
269 Articles 1 of Council Regulation Nos. 493/2005 and 301/2007 (Exhibits TPKM-25; US-45 
respectively). 
270 Council Regulation No. 179/2009, 3rd and 6th recitals and Article 1. 
271 Joint Panel request, WT/DS375/8, 376/8, DS377/6, p. 3. Chinese Taipei additionally discusses 
Council Regulation No. 301/2007 in paras. 214-215 of its first written submission. 
272 See, e.g., European Communities' first written submission, para. 94. 
273 Chinese Taipei's response to Panel question No. 18.  WT/DS375/R 
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  Council Regulation No. 179/2009 does not ch ange the essence of the duty suspension.
274  The United 
States contests its inclusion within the Panel's terms of reference.275 
7.173  We recall that the complainants referred to "any  amendments or extensions and any related or 
implementing measures", in addition to iden tifying Council Regulation No. 493/2005, when 
discussing the measures at issue.276   
7.174  We note that the European Communities has not  contested the inclusion or reference of 
Council Regulation No. 493/2005.  As mentioned, the European Co mmunities has itself discussed the 
relevance of Council Regulation No. 179/2009. 
7.175  Regarding amendments to measures, discussed in the context of the Panel's terms of 
reference, the Panel recalls the followi ng statement by the Appellate Body in Chile – Price Band 
System , also cited in paragraph 7.137 above: 
"[T]he demands of due process are such that  a complaining party should not have to 
adjust its pleadings throughout dispute settleme nt proceedings in order to deal with a 
disputed measure as a 'moving target'. If the terms of reference in a dispute are broad enough to include amendments to a measure – . . .  –  and if it is necessary to consider 
an amendment in order to secure a positive so lution to the dispute – as it is here – 
then it is appropriate to consider the meas ure as amended in coming to a decision in a 
dispute."
277 
7.176  As we noted above, the Appellate Body examin ed in that case the relationship between the 
original measure and the subsequent amendment to  that measure, and determined that the law in 
question "amend[ed]" Chile's price band system "without changing its essence ".278 
7.177  In light of the Appellate Body's earlier stat ements, we recognized that a panel's terms of 
reference may be considered to include "amendments"  to measures that are listed in the panel request 
as long as the terms of reference are broad enough, and the new measure does not "change the essence" of the original measures included in the re quest.  Moreover, we noted, it may be relevant to 
consider whether the inclusion of any amendments w ithin a panel's terms of reference is necessary to 
secure a positive solution to the dispute.  The Panel will consider here whether it may properly 
consider amendments to the duty suspension. 
                                                     
 
274 Chinese Taipei's response to Panel question No. 18. 
275 United States' second written submission, paras. 76 and 79. 
276 See para. 7.128 above. 
277 Appellate Body Report on Chile – Price Band System , para. 144. 
278 Appellate Body Report on Chile – Price Band System , para. 139 (emphasis original).  The Appellate 
Body in EC – Chicken Cuts considered the relevance of its earlier findings in its report in 
Chile - Price Band System , in particular the notion of changing the essence  of the original measure.  In 
considering two measures that had been enacted subsequent to the panel request, the Appellate Body in EC - Chicken Cuts  noted that the two measures made no reference to the initial measures in that request, and the 
initial measures continued to be in effect.  For these reasons, and having determined that the subsequent 
measures had legal implications different from those of the two original measures, the Appellate Body 
concluded that the measures were not, in essence, the same and could not be considered "amendments" as were 
the measures at issue in Chile –Price Band System .  The Appellate Body additionally concluded that failure to 
consider the two subsequent measures in the Panel's terms of reference "would not hinder a positive resolution 
of this dispute"  (Appellate Body Report on EC – Chicken Cuts , paras. 155-162). WT/DS375/R 
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  Whether the Panel's terms of reference are br oad enough to include C ouncil Regulations Nos. 
301/2007 and 179/2009  
7.178  In the case before us, we note that, in  addition to identifying Council Regulation 
No. 493/2005, the complainants include the phrase "any  amendments or extensi ons and any related or 
implementing measures".279   
7.179  The complainants do not expressly identify C ouncil Regulations Nos. 301/2007 or 179/2009 
as measures in their joint Panel request, alt hough they do discuss Council Regulation Nos. 301/2007 
in their Panel request280, and subsequently in their submissions.281  Therefore, we must examine 
whether the phrase "any amendments or extensions and any related or implementing measures" is 
sufficiently broad so as to describe Counc il Regulations Nos. 301/2007 or 179/2009. 
7.180  In our view, the main text of the Panel Request is  broad enough to include Council 
Regulations Nos. 301/2007 or 179/2009.  The terms of  measures in the Panel request before us, like 
those terms in panel requests in previous disputes th at were construed broadly, are sufficiently broad 
to account for the possibility of amendments  or extensions of the identified measures.282  We will 
therefore consider whether the new measures that we re not enumerated as "measures at issue" in the 
complainants' joint Panel request, change the essence of Council Regulation No. 493/2005. 
Whether the inclusion of Council Regulations  Nos. 301/2007 and 179/2009 change the 
essence of Council Regulation No. 493/2005  
7.181  Council Regulation No. 301/2007 expressly states in  its seventh recital that "the suspension 
introduced by this Regulation is a prolongation of  a suspension introduced by Regulation 493/2005" 
and that "it is not in the interest of the Community that there be any interruption of the tariff treatment 
of the monitors covered by this suspension".  Moreover, Council Regulati on No. 301/2007 extends for 
two years a suspension of the application of duties to the same range of products to which Council 
Regulation No. 493/2005 applied, namely, "monitors  with a diagonal measurement of the screen of 
48,5 cm or less and with an aspect ratio of 4:3 or  5:4".  Article 1 of this regulation sets forth the 
specific legal obligations to au tonomously suspend 14 per cent ad valorem duties under CN code 
8528 59 90, until 31 December 2008, for "monitors with a diagonal measurement of the screen of 48,5 
cm or less and with an asp ect ratio of 4:3 or 5:4". 
7.182  Because Council Regulation No. 301/2007 simply  prolongs the period of application of 
Council Regulation No. 493/2005 without modifying the scope of applicability of the duty 
suspension, we consider the measure does not change the essence of Council Regulation No. 493/2005.   
7.183  We next consider Council Regulation No. 179/2 009. This regulation indicates in its sixth 
recital that "the suspensions provided for in this Regulation are an extension of the suspension 
introduced by Regulation 301/2007 ...". In its third recital, Council Regulation No. 179/2009 indicates 
that "it is in the interest of the Community to extend  the current autonomous duty suspension for two 
                                                     
 
279 Joint Panel request, WT/DS375/8, 376/8, DS377/6, p. 2. 
280 Joint Panel request, WT/DS375/8, 376/8, DS377/6, p. 2. 
281 See, for instance, Exhibit US-45; Chinese Taipei's first written submission, para. 89. 
282 In this respect, we recall, for example in Chile – Price Band System , the panel request referred to 
"Law 18.525, as amended by Law 18.591 and subsequently by Law 19.546, as well as regulations and 
complementary provisions and/or amendments".  The Appellate Body considered that language to reflect a "broad scope of the Panel request in order to include a subsequent amendment within the Panel's terms of 
reference".  Appellate Body Report on Chile – Price Band System , para. 135.  WT/DS375/R 
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  years starting from 1 January 2009 and to increase  the diagonal measurement of the screen to 55,9 cm 
(22 inches) and to add the additional aspect ratios of 1:1 and 16:10". In its fourth recital, the regulation provides "it is also in the interest of  the Community to provid e for a suspension for two 
years starting from 1 January 2009 for black and white or other monochrome monitors with a 
diagonal measurement of the screen not exceeding 77 ,5 cm (30,5 inches) a nd with the same aspect 
ratios as for colour monitors".   
7.184  Article 1 of Council Regulation No. 179/2009 sets forth the specific legal obligation to 
autonomously suspend 14 per cent ad valorem duties, until 31 December 2010, for certain products.  
In particular, under CN code 8528 59 10, duties are to be suspended for:  
"[B]lack and white or other monochrome monitors, using liquid crystal display 
technology, equipped with either digital vi sual interface (DVI) or a video graphics 
array (VGA) connector or both with a diagonal measurement of the screen not 
exceeding 77,50 cm (i.e. 30,5 inches), with an  aspect ratio of 1:1, 4:3, 5:4 or 16:10, 
with a pixel resolution exceeding 1,92 me ga pixels, and with a dot pitch not 
exceeding 0,3 mm".   
7.185  Under CN code 8528 59 90, duties are to be suspended for:  
"[C]olour monitors, using liquid crysta l display technology, with a diagonal 
measurement of the screen not exceeding 55,9 cm (i.e. 22 inches), with an aspect ratio of 1:1, 4:3, 5:4 or 16:10". 
7.186  Thus, unlike in the case of Council Regul ation No. 301/2007, Council Regulation 
No. 179/2009 not only prolongs the duration of th e initial duty suspension established under Council 
Regulation No. 493/2005, but also expands the preci se terms of the suspension to a broader category 
of products, including those "black and white or other monochrome monitors" specified above, and 
"colour monitors" as specified above. Despite such en larged coverage, we do not consider that this 
measure operates in such a way as to change the essence  of its predecessor measures implementing 
and prolonging the duty suspension. We note that th e duty suspension is in essence applicable to 
"monitors", albeit both black and white or other mono chrome and colour ones. However, we consider 
the suspension operates in a near identical manner wi thin EC law and has similar legal implications. 
That is, the suspension excludes certain LCD colour  monitors from the application of duties arising 
from classification under CN code 8528 59 90. The lat est measure, at least in part, more broadly 
suspends the application of duties on LCD colour m onitors with a diagonal measurement of up to 55,9 
cm with various aspect ratios of 1:1, 4:3, 5:4 or 16:10, as opposed to only those with a diagonal measurement of up to 48,5 cm and aspect ratios of either 4:3 or 5:4.
283  Although the precise terms of 
the suspension point to a broader category of pr oducts, we consider Council Regulation No. 179/2009 
does not change the essence of Council Regulation No. 493/2005. 
7.187  In summary, we have thus far concluded that the Panel's terms of re ference are broad enough 
to include Council Regulations Nos. 301/2007 and 179/2009, due to the complainants' reference to 
"any amendments or extensions and any related or implementing measures" in their joint Panel 
request. In addition, we concluded that C ouncil Regulations Nos. 301/2007 and 179/2009 do not 
                                                      
283 In addition, the latest measure extends coverage  to LCD black and white or monochrome monitors 
with diagonal measurement of the screen  not exceeding 77,50 cm (i.e. 30,5 inch es), with an aspect ratio of 1:1, 
4:3, 5:4 or 16:10, with a pixel resolution exceeding 1, 92 mega pixels, and with a dot pitch not exceeding 
0,3 mm. WT/DS375/R 
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  change the essence of Council Regulati on No. 493/2005.  Finally, we w ill consider the implications of 
these measures for the ultimate reso lution of the matter before us. 
Whether the inclusion of any amendments within  a panel's terms of reference is necessary to 
secure a positive solution to the dispute  
7.188  We recall that the complainants have requ ested the Panel to determine whether their 
commerce has been accord ed treatment less favourable than that provided in the EC Schedules, 
inconsistently with the obligations of the EC and its member States under Article II of the GATT 
1994.  The complainants argue that the European Co mmunities fails to accord tariff treatment that is 
no less favourable notwithstanding the suspension of duties under Council Regulation 493/2005 and 
Council Regulation 301/2007.284 
7.189  As noted above, Council Regulations Nos. 493/2005 and 301/2007 have expired. Council 
Regulation No. 179/2009 is the legislation that is cu rrently in force. Therefore, we consider that a 
ruling that takes into consideration Council Regul ation No. 179/2009 would aid in the settlement of 
this dispute. 
Conclusions  
7.190  For the foregoing reasons, we conclude th at Council Regulations Nos. 301/2007 and 
179/2009, as amendments and extensions of Council Regulation No. 493/2005, are within the Panel's 
terms of reference. 
(f) Did the complainants adequately identify th e products at issue in the Panel request? 
(i) Arguments of the parties 
7.191  In its first written submission, the European Communities  raised several allegations in the 
context of arguing that the complainants have "failed to make a prima facie case" for a series of 
reasons.  Among them, the European Communities argues that the complainants have failed to make a 
prima facie  case by "failing to identify the product or  products at issue in sufficient detail…".285 In 
discussing what is required to succeed in an "as su ch" claim, the European Communities submits that 
the Appellate Body in EC – Computer Equipment  recognized that, in order to identify the 'specific 
measures at issue', it may also be necessary to identify the products subject to the measures in 
dispute".286 While noting the statement by the Appellate Body in EC – Chicken Cuts , according to 
which one can define the products at issue through the challenged measures, the European 
Communities argues that this approach is inapplicab le where the products at issue are "significantly 
more complex" and the measures at issue do not apply a single criterion when considering their 
classification.287 
7.192  The complainants  indicated that the identified measur es at issue apply to, for instance, 
"certain flat panel displays using LCD technology that are 'capable of reproducing video images from 
a source other than an automatic data-processing mach ine'", and "flat panel displays with certain 
attributes, such as DVI".288 The complainants reject the European Communities' interpretation of EC – 
                                                      
284 Joint Panel request, WT/DS375/8, 376/8, DS377/6, p. 3. 
285 European Communities' response to Panel question No. 22. 
286 European Communities' response to Panel question No. 22 (citing the Appellate Body Report on  
EC – Computer Equipment , para. 67 (emphasis in original)). 
287 European Communities' response to Panel question No. 22. 
288 Joint Panel request, WT/DS375/8, 376/8, DS377/6, p. 3.  WT/DS375/R 
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  Computer Equipment . Rather, they argue that the approach taken in both EC -  Computer Equipment 
and EC – Chicken Cuts  supports the view that the products at issue "flow from the measures identified 
in the panel request".
289   
(ii) Consideration by the Panel 
7.193  The Panel  recalls that Article 6.2 of the DSU requi res a complainant to "identify the specific 
measures at issue and provide a brief summary of th e legal basis of the complaint sufficient to present 
the problem clearly". 
7.194  Article 6.2 of the DSU does not refer to the identification of the products  at issue, but instead, 
only refers to the identification of the specific measures  at issue. The Appellate Body has explained 
that under DSU Article 6.2, "the identification of the product at issue is generally not a separate and distinct element of a panel's terms of reference; ra ther, it is a consequence of the scope of application 
of the specific measures at issue." Thus, it concluded that it is "the measures  at issue that generally 
will define the product  at issue."
290 At the same time, though, it recognized that it may be necessary to 
identify the products at issue, in instances where decisions of customs authorities are under challenge, 
in order to identify the specific measures at issue.291   
7.195  In their joint Panel request, we recall that th e complainants indicated that the identified 
measures at issue apply to, for instance, "certain flat panel displays using LCD technology that are 
'capable of reproducing video images from a source other than an automatic data-processing 
machine'", and "flat panel displays with certain attributes, such as DVI".292  The complainants have 
identified a series of generally applicable EC measures pertaining to the tariff classification of products (including certain CN codes, classification regulations and CNENs) in connection with their 
claims concerning FPDs.  In certain cases, the complainants have also identified individual 
classification decisions by customs authorities as eviden ce of the application of the measures at issue. 
7.196  The Panel notes that while the European Comm unities has not argued that the complainants 
have breached the provisions of Article 6.2 it has argued that the complainants "failed to make a 
prima facie  case" of violation, "as such", by allegedly failing to identify the products with sufficient 
clarity.
293 To the extent that the European Communities ' arguments relate to the issue of what is 
required to establish an "as such" claim we have dealt with this in paragraphs 7.103-7.117 above. 
With regard to the issue of whether the co mplainants have established a prima facie  case, this can 
only be determined after consideri ng the full range of arguments and evidence before the Panel, which 
we do in subsequent sections. At this stage the Panel confines itself to the issue of whether the 
products were sufficiently identified for the purposes of Article 6.2. While the European Communities 
has not raised a claim in these terms, we recall our  statement in paragraph 7.134 above that Panels 
may choose to deal with issues on their own motion wh ere it considers that they go to the heart of 
their jurisdiction, to satisfy themselves that they may proceed.  In the circumstances of this case, we 
consider it useful to examine at the outset the meas ures that fall within our te rms of reference and the 
corresponding products at issue. 
                                                      
289 United States' second written submission, para. 16; Japan's response to Panel question No. 22. 
290 Appellate Body Report on EC – Chicken Cuts , para. 165 (emphasis original). 
291 Appellate Body Report on EC – Chicken Cuts , para. 166; Appellate Body Report on EC – Computer 
Equipment , para. 67. 
292 Joint Panel request, WT/DS375/8, 376/8, DS377/6, p. 3. 
293 European Communities' first written submission, paras. 32, 34-49. WT/DS375/R 
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  7.197  We note here that the contested measures are not individual classification decisions by 
customs authorities, but, rather, as was the case in EC – Chicken Cuts , are generally applicable legal 
instruments.
294  In our view, the joint panel request fo cuses on particular aspects of the measures at 
issue, which in turn identify the products at issu e sufficiently for the purposes of Article 6.2 of the 
DSU. The panel request focuses on flat panel display devices with two characteristics – those capable of reproducing video images both from an ADP and a source other than an automatic data-processing 
machine, and those with certain attributes, such as a built in DVI interface. Thus, for the purposes of 
fulfilling the requirements of Article 6.2 of the DSU, we conclude there has been sufficient 
identification of the products for us to proceed with the dispute at hand. 
(g) Have the complainants identified obligations "with the necessary clarity" for the European 
Communities to defend itself and for the Panel to rule on the complainants' claims under 
Articles II:1(a) and II:1(b) of the GATT 1994? 
(i) Arguments of the parties 
7.198  The European Communities  argues that, in their first submissions, the complainants failed 
to identify the precise concession that is allegedly breached both in terms of its substantive content 
and where precisely it is provided for in the Schedule of the European Communities.
295  In particular, 
the European Communities argues that the complainants ' claim in their joint Panel request that "their 
commerce has been accorded treatment  less favourable than that provided in the EC Schedules , and 
that ordinary customs duties, or other duties and charges, in excess of those set forth in the EC 
Schedules  have been applied to certain flat panel displays (...)" (emphasis added).296  The European 
Communities argues that the United States did not define precisely the text that should be analysed when discussing products that are also listed in Attachment B.
297 The European Communities 
questions whether Japan considers that the text of  the ITA is incorporated by reference into the 
concessions or whether the language in the Annex to the EC Schedule  itself is the concession.298  The 
European Communities argues that  Chinese Taipei has claimed th e concessions are in the EC 
Schedule and not in the text of the ITA itself. The European Communities continues that Chinese 
Taipei has ignored the fact that the Annex to th e EC Schedule contains a list of tariff item numbers, 
and further failed to account for the fact that the terms "device" and "vacuum-fluorescence" were 
incorporated into the final text of the ITA.299 In sum, the European Communities argues that the 
complainants "appear to use the terms set forth in  the EC Schedule and ITA almost interchangeably 
without providing a justification for such an approach".300 Without knowing where the concession 
actually is, the European Communities claims that it  is not clear whether the substantive obligations 
are identical for all parties, or whether certain differences were allowed to exist. Moreover, the 
European Communities argues that its  ability to defend itself is compromised due to a lack of clarity 
regarding the concessions' locations.301 
7.199  The European Communities  considers that the narrative product definitions in the EC 
Schedule pursuant to Attachment A, Section 2 and A ttachment B and the tariff item numbers next to 
them reflect the common understanding between WT O Members of the scope of the relevant EC 
                                                      
294 Appellate Body Report on EC – Chicken Cuts , para. 167. 
295 European Communities' first written submission, para. 51. 
296 European Communities' first written submission, para. 50. 
297 European Communities' first written submission, para. 52. 
298 European Communities' first written submission, para. 54. 
299 European Communities' first written submission, para. 56. 
300 European Communities' first written submission, para. 57. 
301 European Communities' first written submission, para. 61.  WT/DS375/R 
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  commitments pursuant to Attachment A, Section 2 and Attachment B.
302 The European Communities 
recognizes two possibilities: first, that the product descr iptions and the headings next to them in the 
Annex to the EC Schedule are the concession, or second, that the product descriptions in the ITA 
itself are incorporated into the EC Schedule as a "safety net".303   
7.200  The European Communities disputes the rele vance of document WT/MIN(96)/16/Corr.1.304 
Noting the format and numbering of the documen t in comparison to other WTO documents, the 
European Communities  submits that there is no evidence that the said document was ever officially 
circulated among all WTO Members. The European Communities asserts that a separate document, 
G/L/159/Rev.1, states that ITA participants "agreed to amend the description of the products in 
Attachment B and this amendment is already reflected in the schedules of participants", thus revealing that amendments would be done via the Schedules of ITA participants.
305   
7.201  The United States  argues that the Panel "must look at Attachment B and the product 
descriptions contained therein" to determine the sco pe of the concession as, it argues, the text of the 
EC headnote expressly directs the reader to Attachment B.306 In this regard, the United States argues 
that the chapeau to Attachment B, including its ph rases "products described in or for Attachment B", 
"[p]ositive list of specific products" and "wherever th ey are classified in the HS" should be evaluated 
to the extent they provide additional information "o n whether a given product is 'described in or for 
Attachment B'".307  Moreover, it argues, had the drafters in tended to refer only to the list of products 
reproduced in the EC Schedule, they would have  stated so by referring to the list of product 
descriptions below the EC headnote rather than by referring to Attachment B itself.308  However, the 
United States submits that  Attachment B was modified to reflect certain technical corrections, 
including the addition of the terms "devices" and "Vacuum Fluorescence", pursuant to document 
WT/MIN(96)/16/Corr.1309, dated 13 October 1997. The United States argues that this document is an 
official WTO document that reflects a consen sus to correct the legal text of the ITA.310  Thus, it 
concludes that there are no discrepancies between the description for "flat panel display devices (...)" 
that appears in the EC Schedul e and the one in Attachment B.311  As such, it considers the relevant 
language is identical for purposes of the Panel's assessment of the concession.312 
                                                      
302 European Communities' response to Panel question No. 5. 
303 European Communities' response to Panel question No. 5. 
304 WT/MIN(96)/16/Corr.1 (13 October 1997) (Exhibit US-36). WT/MIN(96)/16/Corr.1 sets out 
typographical and other corrections to the ITA. 
305 European Communities' comment on the complainants' responses to Panel question No. 115. 
306 United States' response to Panel question No. 5. 
307 United States' and Chinese Taipei's responses to Panel question No. 111. 
308 Complainants' responses to Panel question No. 5.   
309 Exhibit US-36. 
310 The United States submits that the document is formatted as an official WTO document, has an 
assigned document number, and is not identified as a draf t, thus dispelling doubts about its authenticity (see 
United States' second written submission, para. 66, fn.129).  To the extent there are doubts as to its origin, the 
United States submits that the fact that participants agre ed to changes to Attachment B is also supported within 
G/L/159/Rev. 1 (24 April 1997), which, it contends, states, "In the plurilateral technical discussions held before 
31 January 1997, it was agreed to amend the description of  the products in attachment B and this amendment is 
already reflected in the schedules of  participants." (See United States' response to Panel question No. 115 
(Exhibit US-37)).  Finally, in reference to the Europe an Communities' first written submission (para. 186), the 
United States submits that the European Communities does not dispute that the changes to the FPDs concession 
were "part of the final agreement." (See Unite d States' response to Panel question No. 115). 
311 United States' responses to Panel questions Nos. 5 and 55. 
312 Complainants' responses to Panel question No. 5.   WT/DS375/R 
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  7.202  Japan  and Chinese Taipei  submit that the EC concession, while made pursuant to 
Attachment B, is located in the Annex to the EC Sc hedule, and not in Attachment B itself.  Thus, they 
consider that they have clearly identified the precise concession and made clear that these concessions 
appear in the EC Schedule.
313 The language of the product narr ative descriptions contained in 
Attachment B has been incorporated into the EC Schedule, and thus, constitu tes the language of the 
EC tariff concession314.  Notwithstanding, Japan and Chinese Taip ei agree with the United States that 
there are no discrepancies between the description for "flat panel display devices (...)" in the EC 
Schedule and the one in Attachment B  as a result of  an agreement to include  the terms "devices" and 
"Vacuum Fluorescence", reached pursuant to document WT/MIN(96)/16/Corr.1.315 
7.203  The European Communities contends that it does not have document 
WT/MIN(96)/16/Corr.1 and consequently concludes that the document was never circulated to WTO Members or ITA participants.
316 Nevertheless, the European Co mmunities submits that the terms 
"devices" and "vacuum-fluorescence" were incorporated into the final text of the ITA in response to a 
request by Switzerland during negotiations of the final ITA text, though it considers the agreement 
was never "formally rectified".317 
(ii) Consideration by the Panel 
7.204  The Panel  notes that the European Communities has not argued that the complainants' alleged 
failure to identify the precise concession means th at the complainants have failed to satisfy the 
provisions of Article 6.2 or other provisions of the DSU; instead, the European Communities argues 
that the complainants failed to make a prima facie  case of violation by allegedly failing to identify the 
precise concession with respect to its claims  concerning flat panel display devices. 
7.205  The Panel considers that two issues arise in light of the European Communities' contention 
that the complainants did not id entify the obligations "with the n ecessary clarity" for the European 
Communities to defend itself: first, have the compla inants sufficiently referred to the concessions at 
issue in their joint Panel request, and second, what  is the location of the concession arising under the 
FPDs narrative description for the pu rposes of the Panel's analysis. 
7.206  We recall again our statement in paragraph 7.134 above that Panels may choose to deal with 
issues on their own motion that they consider to go to the heart of their jurisdiction, to satisfy 
themselves that they may proceed. 318  We will thus first address whether the complainants sufficiently 
identified the obligations in their Panel request to permit the Panel to proceed.  Second, we will 
                                                      
313 Japan's second written submission, para. 133; Chinese Taipei's second written submission, 
paras. 100-111. 
314 Japan's and Chinese Taipei's responses to Panel question No. 5. 
315 Japan's and Chinese Taipei's response to Panel question No. 55.  Japan argues that it "assumes that 
the said document was not a draft and was circulated" because it has document WT/M IN(96)/16/Corr.1 in its 
archives. (Japan's response to Panel question No. 115) .  Chinese Taipei agrees w ith the United States that 
document WT/MIN(96)/16/Corr.1 is an official WTO document that was circulated among WTO Members, in light of its format and designation with a WTO docume nt number (Chinese Taipei's response to Panel question 
No. 115). 
316 The European Communities contends that document WT/MIN(96)/16/Corr.1 is possibly an unused 
draft. (see European Communities' response to Panel question No. 55). 
317 See European Communities' first written submissi on, para. 186; Trade in Information Technology 
Products: Result of Bilateral Consultations, Communi cation from Switzerland (G eneva 21 January 1997) 
(Exhibit EC-29). 
318 Appellate Body Report on Mexico – Corn Syrup (Article 21.5 – US) , paras. 36 and 53.  WT/DS375/R 
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  address the issue of precisely wh ere the concession arising under th e narrative product description for 
"flat panel display devices" is located. 
Whether the complainants sufficiently identifie d the obligations in their Panel request to 
permit the Panel to proceed  
7.207  We recall that Article 6.2 of the DSU requires a complainant to "provide a brief summary of 
the legal basis of the complaint suffici ent to present the problem clearly".   
7.208  In US – Oil Country Tubular Goods Sunset Reviews , the Appellate Body found that the term 
"legal basis" in Article 6.2 of the DSU refers  to the claim made by the complaining party.319  T h e  
Appellate Body has clarified that a claim sets fort h the complainant's view that "the respondent party 
has violated, or nullified or impaired the benefits arising from, an identified provision of a particular 
agreement".320    
7.209  While a claim sets forth the comp lainant's view that the respondent party has violated, or 
nullified or impaired the benefits arising from, an  identified provision of a particular agreement,  
arguments are adduced by a complaining party to  demonstrate that the responding party's measure 
does indeed infringe upon the identified treaty provision.321  The arguments in support of a claim may 
be set out and progressively clarified in the firs t written submission, the rebuttal submission and the 
first and second panel meetings with the parties.322      
7.210  The Appellate Body has additionally explained that  the requirements in Article 6.2 to identify 
the specific measures at issue and to provide a brie f summary of the legal basis of the complaint "are 
intended to ensure that the complaining party 'pr esent[s] the problem clearly' in its panel request."323 
7.211  The "problem" is not solely the obligations in the covered agreements nor the respondent 
Member's measures but rather wh ether the respondent Member's measures comport with those 
obligations. Therefore, to sufficiently present th e problem clearly, a complaining Member must 
"plainly connect the challenged measure(s) with th e provision(s) of the covered agreements claimed 
to have been infringed, so that the respondent part y is aware of the basis for the alleged nullification 
or impairment of the complaining party's benefits."324 As the Appellate Body has explained, "[o]nly 
by such connection between the measure(s) and the relevant provision(s) can a respondent 'know what 
case it has to answer, and ... begin preparing its defence'.325".326  
7.212  This understanding is consistent with the essentia l purpose of the panel request to give the 
parties and third parties sufficient information concer ning the claims at issue in the dispute to enable 
them to respond to the complainant's case327; this speaks to the due process rights of the respondent.328  
It is worth recalling that due process protections are "inherent in the WTO dispute settlement 
                                                      
319 Appellate Body Report on US – Oil Country Tubular Goods Sunset Reviews , para. 162. 
320 Appellate Body Report on Korea – Dairy , para. 139. 
321 Appellate Body Report on Korea – Dairy , para. 139. 
322 Appellate Body Report on EC – Bananas  III, para. 141. 
323 Appellate Body Report on US – Continued Zeroing , para. 160. 
324 Appellate Body Report on US – Oil Country Tubular Goods Sunset Reviews , para. 162. 
325 (footnote original ) Appellate Body Report on Thailand – H-Beams , para. 88. 
326 Appellate Body Report on US – Oil Country Tubular Goods Sunset Reviews , para. 162; see also 
Appellate Body Report on Brazil – Desiccated Coconut , DSR 1997:I, p.186. 
327 Appellate Body Report on Brazil – Desiccated Coconut , DSR 1997:I, p.186. 
328 Panel Report on China – Publications and Audiovisual Products , para. 7.28.   WT/DS375/R 
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  system"
329 and are "fundamental to ensuring a fair and orderly conduct of dispute settlement 
proceedings".330 
7.213  We recall that the complainants discussed the EC obligations concerning its FPDs claims as 
follows in their joint Panel request: 
"On 2 July 1997, the EC modified Schedule LXXX – European Communities to the 
Marrakesh Agreement Establishing  the World Trade Organization  (the Marrakesh 
Agreement).  Those concessions include the concession for '[i]nput or output 
units...Other' as in HS item 8471 60 90.  Th is subcategory carries a zero duty rate.  
The Schedule also provides in a headnote that '[w]ith resp ect to any product described 
in or for Attachment B to the Annex to the Ministerial Declaration on Trade in 
Information Technology Products, to the exte nt not specifically provided for in this 
Schedule, the customs duties on such product,  as well as any other duties and charges 
of any kind … shall be bound and eliminated , as set forth in paragraph 2(a) of the 
Annex to the Declaration, wherever the pr oduct is classified.' Attachment B includes 
'[f]lat panel display devices (including LCD, Electro Luminescence, Plasma, 
Vacuum-Fluorescence and other technologi es) for products falling within this 
agreement and parts thereof.'  The bound duty rate for this product, as set forth in HS items 8471 60 90, 8473 30 10, 8473 30 90, 8531 20 30, 8531 20 51, 8531 20 59, 
8531 20 80, 8531 80 30, 8531 90 10, 8531 90 30, 9013 80 11, 9013 80 19, 
9013 80 30 and 9013 90 10, and as specified in the headnote, is zero. 
As a result of these concessions, the EC and its member States are obliged to grant 
duty-free treatment to flat panel displays.  Nevertheless, the EC and its member States 
impose duties on these products, as explained below."
331 
7.214  In addition, as reflected in the summary of th e parties' arguments above, the parties have 
discussed the location of the concession arising unde r the narrative product description for "flat panel 
display devices".   
7.215  The European Communities appears not to ha ve taken issue with the complainants' 
identification of "the concession for '[i]nput or ou tput units...Other" as in HS item 8471 60 90'", as 
specified in the text in the preceding paragraph. 
7.216  However, the European Communities has taken i ssue with the complainants' reference to the 
headnote in the EC Schedule and the description for FPDs as it appears both in the Annex to the EC 
Schedule and in Attachment B itself. 
7.217  In the Panel's view the joint Panel request does sufficiently identify the concessions at issue.  
It is clear that the complainants' claim relates to the narrative description for flat panel displays, read 
in association with the headnote in the EC's Schedul e.  The European Commun ities can have been in 
no doubt as to the legal basis of the case against it,  and indeed provided substantive arguments in 
response.  In the Panel's view, and as discussed fu rther below, while the panel request could have 
been clearer in terms of where the obligations were "located" (that is, incorporated by reference or set 
                                                      
329 Appellate Body Report on Chile – Price Band System , para. 176.  See also Appellate Body Report 
on Mexico – Corn Syrup (Article 21.5 – US) , para. 107. 
330 Appellate Body Report on Thailand – H-Beams , para. 88. 
331 Joint Panel Request WT/DS375/8, WT/DS376/8, WT/DS377/6, p. 2.  WT/DS375/R 
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  out independently in the Annex to the EC Schedu le), this has not prejudiced the ability of the 
European Communities to defend itself in this case. 
7.218  Accordingly, we conclude that the complainan ts identified the obligations "with the necessary 
clarity" in their Panel request for the European Co mmunities to defend itself and for the Panel to rule 
on the complainants' claims.  We now address the "location" of the narrative product description for 
"flat panel display devices" for purposes of addr essing the complainants' claims in this case. 
Is the commitment arising under the narrative product description for "flat panel display 
devices" located in the Annex to the EC Schedule, Attachment B, or both?  
7.219  The issue, as reflected in the parties' argumen ts above, is whether the product description for 
"flat panel display devices (...)" is that reproduced separately in the Annex to the EC Schedule, that 
contained in Attachment B, or whether both texts are relevant.   
7.220  The United States argues that that the Panel must look at the descriptions in Attachment B in 
light of the EC headnote .  Japan and Chinese Taipei submit that  the EC concession made pursuant to 
Attachment B has been incorporated by reference and is therefore found in the Annex to the EC 
Schedule, and not in Attachment B itself. 
7.221  The European Communities appears to recognize both possibilities: that the product 
descriptions and the headings next to them in th e Annex to the EC Schedule are the concession, or 
second, as a "safety net" that the product descriptions  in the ITA itself are in corporated into the EC 
Schedule.332   
7.222  Setting aside the parties' views, we note that the EC headnote  found in the Annex to the EC 
Schedule refers to "any product described in or fo r Attachment B to the Annex to the Ministerial 
Declaration on Trade in Information Technology Products (WT/MIN(96)/16)".  In addition, the 
Annex to the EC Schedule reproduces, separately, pro duct descriptions that clearly have their origins 
in Attachment B of the ITA, though the text of the narrative descriptions for "flat panel display 
devices (...)" in the Annex to the EC Schedule  is not identical with that appearing in Attachment B.  
Looking at Attachment B contained in WT/MIN( 96)/16, as the parties have discussed, the terms 
"devices" and "vacuum-fluorescence" appear in the text  of the Annex to the EC Schedule, but not in 
the ITA text. 
7.223  There is some dispute between the parties on th e precise status of the Corrigendum document.  
The complainants consider that a formal correcti on to the ITA was agreed to and circulated in 
document WT/MIN(96)/16/Corr.1 of 13 October 1997.333  The United States and Chinese Taipei, in 
particular, highlight that the document itself is formatted as an official WTO document, has an 
assigned document number, and is nowhere identified as a draft.  The United States submits additionally that document G/L/159/Rev.1 discusses changes to the narrative descriptions for flat 
panel display devices.
334  Noting the differences in format  and numbering of the document in 
comparison to other WTO documents, the European  Communities rejects the claim that a formal 
document with an amendment was circulated and cons iders status of this document to be "unclear 
and, therefore, in dispute".335  Notwithstanding this view, the Eu ropean Communities submits that an 
                                                      
332 European Communities' response to Panel question No. 5. 
333 Complainants' responses to Panel questions Nos. 5 and 55. 
334 United States' second written submission, para. 66, fn. 129 (Exhibit US-37). 
335 European Communities' response to Panel question No. 115.  The European Communities 
additionally asserts that the language in document G/ L/159/Rev.1, "agreed to amend the description of the WT/DS375/R 
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  informal agreement to this effect took place duri ng the implementation phase of the ITA pursuant to a 
request by Switzerland.
336 
7.224  We note that document WT/MIN(96)/16/Corr.1 co ntains a product description for "flat panel 
display devices (...)" that corresponds exactly to that reproduced in the EC schedule.   
7.225  Whatever the formal status of document WT/MIN(96)/16/Corr.1, or the relevance of 
document G/L/159/Rev.1, it is evident to the Panel th at the ITA participants intended to modify the 
product descriptions contained in the ITA, and that these modified product descriptions should form 
the basis of the ITA participants' co mmitments with regard to that product.  Evidence for this is found 
in the fact that the European Communities used th is version of the narrative product description in the 
Annex to its Schedule.  The Panel also notes that , of those ITA participants that have included 
narrative descriptions in their schedules, all of them  have used the modified language contained in 
document WT/MIN(96)/16/Corr.1 for the FPDs commitment.  Indeed, we note that it is not disputed by the parties here that ITA participants agreed to amend some of the product descriptions in 
Attachment B , including that for "flat panel display devices (...)" , and that these were reflected in the 
amendments to the WTO schedules of its participants. 
7.226  In light of our view that ITA participants in tended to and did modify the product description 
for "flat panel display devices (...)", we find that  there are no discrepancies between the modified 
narrative product description for flat panel display de vices contained in Attachment B of the ITA, as 
referred to in the EC headnote, and that wh ich is reproduced in the list in the Annex  to the EC 
Schedule.  Accordingly, we will not address further the question of whether the focus should be on the 
narrative descriptions in Attachment B of the ITA, or those reproduced separately in the Annex to the 
EC Schedule. To the extent that the product d escriptions themselves define the scope of the 
obligations (a point that we will return to belo w), the identical language used in these narrative 
product descriptions in the ITA on the one hand, and as reproduced in the EC Schedule on the other, 
would give rise to obligations of identical scope.  
2. The measures at issue and their effects 
7.227  The Panel will now consider the measures at issu e specifically identified  by the complainants, 
as set forth in paragraph 7.128 above, and their e ffect.  In addition, we will consider Council 
Regulation No. 179/2009 that we determined in paragraph 7.190 above to be an amendment to 
Council Regulation No. 493/2005.  As we explaine d, we will not consider Council Regulation No. 
493/2005 since it has been replaced by Council Regulation No. 179/2009.  We recall that the 
European Communities has not contested c onsideration of any of these measures. 
(a) Council Regulation No. 2658/87, as amende d by Commission Regulation No. 948/2009 
7.228  As discussed in paragraphs 7.39-7.45 above , Council Regulation No. 2658/87 establishes the 
CN and CCT.
337 
                                                                                                                                                                     
products in Attachment B and this amendment is already re flected in the schedules of participants", reveals that 
amendments would be done via the WTO Schedules of ITA participants, and not in the ITA, contrary to the 
United States' and Chinese Taipei's view (European Co mmunities' comment on the complainants' responses to 
Panel question No. 115). 
336 See para. 7.203 above. 
337 Council Regulation No. 2658/87, Article 1 (Exhibits EC-49; US-13; TPKM-5).  WT/DS375/R 
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  7.229  We recall that we concluded in paragraph 7.146 above that the Council Regulation No. 
2658/87, including its Annex I, as it has been most recen tly amended, is the specific measure at issue 
in this dispute and was properly identified as such in the joint Panel request. 
7.230  The CN1997
338 included the following descriptions for CN subheadings 8471 60 and CN 
heading 8528: 
Rate of duty 
CN code Description autonomous 
(%) conventional 
(%) Supplementary 
unit 
1 2 3 4 5 
8471 Automatic data-processing m achines and units thereof; 
magnetic or optical readers, machines for transcribing 
data onto data media in coded form and machines for 
processing such data, not elsewhere specified or 
included:    
8471 60 -  Input or output units, whether or not containing 
storage units in the same housing:    
8471 60 10 - - For use in civil aircraft (1): 11 Free p/st 
 - - Other:    
8471 60 40 - - - Printers 11 2 p/st 
8471 60 50 - - - Keyboards 11 2 p/st 
8471 60 90 - - - Other 11 1 p/st 
 
 
CN code Description Rate of duty 
  autonomous 
(%) conventional 
(%) Supplementary 
unit 
1 2 3 4 5 
8528 Reception apparatus for television, whether or not 
incorporating radio-broadcast receivers or sound or 
video recording or reproducing apparatus; video 
monitors and video projectors    
 - Reception apparatus for television, whether or not 
incorporating radio-broadc ast receivers or sound or 
video recording or reproducing apparatus    
8528 12 - - Colour    
     
8528 13 00 - - Black and white or other monochrome 22 6.8 p/st 
 - Video monitors    
8528 21 - - Colour:    
 - - - With cathode-ray tube:    
8528 21 14 - - - - With a screen width/he ight ratio less than 1,5 22 14 p/st 
 - - - - Other:    
8528 21 16 - - - - - With scanning parameters not exceeding 625 
lines 22 14 p/st 
8528 21 18 - - - - - With scanning parameters exceeding 625 lines 22 14 p/st 
8528 21 90 - - - Other 22 14 p/st 
8528 22 00 - - Black and white or other monochrome 22 14 p/st 
 
7.231  The CN2007 first introduced the duty-free CN codes 8528 41 00 and 8528 51 00 to replace 
duty-free CN code 8471 60 80339, and dutiable CN code 8528 59 90 to replace CN code 8528 21 90.340 
                                                      
338 Exhibit TPKM-22. 
339 CN code 8471 60 80 replaced the duty-free heading CN code 8471 60  90 in previous CN versions. 
340 CN2007 (Exhibits US-47; JPN-2; TPKM-34). WT/DS375/R 
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  7.232  The CN2010 maintains the same structure and CCT as the CN2007 version, as follows
341: 
CN code Description Conventional 
rate of duty (%) Supplementary 
unit 
1 2 3 4 
8528 Monitors and projectors, not in corporating television reception 
apparatus; reception apparatus fo r television, whether or not 
incorporating radiobroadcast receivers or sound or video 
recording or reproducing apparatus:   
 - Cathode-ray tube monitors:   
8528 41 00 - - Of a kind solely or principally used in an automatic data-
processing system of heading 8471 Free p/st 
8528 49 - - Other:    
8528 49 10 - - - Black and white or other monochrome 14 p/st 
 - - - Colour:   
8528 49 35 - - - - With a screen width/height ratio less than 1,5 14 p/st 
 - - - - Other:   
8528 49 91 - - - - - With scanning paramete rs not exceeding 625 lines . 14 p/st 
8528 49 99 - - - - - With scanning parameters exceeding 625 lines 14 p/st 
 - Other monitors:   
8528 51 00 
 - - Of a kind solely or principally used in an automatic data-
processing system of heading 8471 . Free p/st 
 
8528 59 - - Other:   
8528 59 10 - - - Black and white or other monochrome 14 (1) p/st 
8528 59 90 - - - Colour 14(2) p/st 
 
(1) Customs duty autonomously suspended, until 31 December 2010, for black-and-white or other monochrome monitors, 
using liquid crystal display technology, e quipped with either a digital-visual-i nterface (DVI) or a video-graphics-array 
(VGA) connector or both, with a diagonal  measurement of the screen not exceedi ng 77,50 cm (i.e. 30,5 inches), with an 
aspect ratio of 1:1, 4:3, 5:4 or 16:10, with a pixel resoluti on exceeding 1,92 mega pixels, and with a dot pitch not exceeding 
0,3 mm (TARIC code 8528 59 10 10). 
(2) Customs duty autonomously suspended, until 31 December 2010, for colour monitors using liquid crystal display 
technology, with a diagonal measurement of the screen not exceeding 55,9 cm (i.e. 22 in ches), with an asp ect ratio of 1:1, 
4:3, 5:4 or 16:10 (TARIC code 8528 59 90 40). 
 
7.233  Under the CN2010 version, CN code 8528 59 90 is assigned a 14 per cent duty rate, which is 
subject to an autonomous duty suspension, until 31 D ecember 2010, "for colour monitors using liquid 
crystal display technology, with a diagonal measure ment of the screen not exceeding 55,9 cm (i.e. 22 
inches), with an aspect ratio of 1:1, 4:3, 5:4 or 16:10 (TARIC code 8528 59 90 40)".342 
(i) Arguments of the parties 
7.234  The complainants  submit that Council Regulation No. 26 58/87, in particular, its Annex I, as 
amended, sets forth the basic EC measure on tariff s, wherein all monitors are classified under CN 
heading 8528.  The complainants argue that the releva nt CN headings since the entry into force of the 
CN2007 are CN code 8528 51 00 applicable to "other monitors" "of a kind solely or principally used 
in an automatic data-processing system of head ing 84.71" and those classified under CN heading 
                                                      
341 The terms and applicable duty rates of CN code 8528  41 00 and CN code 8528  51 00 are identical in 
the CN2007, the CN2008, the CN2009 and the CN2010. 
342 CN2010, p. 574, footnote "(2)".  Under the CN2008, CN code 8528 59 90 is assigned a 14 per cent 
duty rate subject to an autonomous duty suspension , until 31 December, "for monitors with a diagonal 
measurement of the screen of 48,5 cm or less and with an aspect ratio of 4:3 or 5:4 (TARIC code 8528 59 90 30)" (CN2008, p. 575, footnote "(1)"). Under the CN 2009, CN code 8528 59 90 is also assigned a 
14 per cent duty rate, although no duty suspension is specified. (CN2009, p. 574).  WT/DS375/R 
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  8528.59 applicable to "other".
343  They argue that products classified under these headings were 
previously classified as under CN heading 8471 (i n either CN code 8471 60 90 or 8471 60 80), prior 
to the CN2007.  Japan additionally argues that CN codes 8528 59 10, 8528 72 20 to 8528 72 99, and 
8528 73 00 are also relevant.344 
7.235  The European Communities  argues that CN codes 8528 51 00 and 8528 41 00 in the current 
CN are the relevant provisions implementing obliga tions pursuant to the ITA, both of which extend 
duty-free treatment to monitors "of a kind solely or  principally used in an automatic data-processing 
system of 8471".345  The European Communities said that it is not entirely clear what the basis is for 
considering that the European Communities would be in breach of its obligations under the claim 
based on HS1996 subheading 8471 60 (CN code 8471 60 90) because the combined scope of CN 
codes 8528 51 00 and 8528 41 00 under the HS2007 is at least as wide as CN code 8471 60 90 in the 
EC Schedule, despite differences in  the wording of the headings.346  Thus, presumably, the European 
Communities contends that any a lleged violation could only arise from the alleged interpretative 
effect of certain criteria in CNEN 2008/C 133/ 01 when applied in connection with the CN.347  The 
European Communities contends that it is not clear how the CN is considered to breach Article II of 
the GATT 1994 in relation to the complainants' clai m pursuant to the narrative description for FPDs.  
In its view, it is not clear how to determine wh ere certain products, such as televisions or video 
monitors, should be classified.348 
(ii) Consideration by the Panel 
7.236  The parties do not appear to dispute the content of Council Regulation No. 2658/87.   
7.237  The complainants have identified duty-fr ee CN codes 8528 41 00 and 8528 51 00, and 
dutiable CN code 8528 59 90 as those relevant to its  claims.  The current CN2010 includes reference 
to an autonomous duty suspension, until 31 December 2010, "for colour monitors using liquid crystal display technology, with a diagonal measurement of  the screen not exceeding 55,9 cm (i.e. 22 inches), 
with an aspect ratio of 1:1, 4:3, 5:4 or 16:10 (TARIC code 8528 59 90 40)".  
7.238  The European Communities has not contested that CN codes 8528 41 00 and 8528 51 00 
replace duty-free CN code 8471 60 90.  Moreover, the European Communities has not asserted any 
other relevant headings. 
7.239  The Panel  therefore understands that the European  Communities now classifies products that 
were previously classified in CN code 8471 60 90 under CN codes 8528 41 00 and 8528 51 00.   
7.240  Based on the terms of the descriptions for these CN codes, it appears evident that under the 
CN 'monitors of a kind solely or principally used in an automatic data-processing system of heading 
8471' are classifiable under duty free CN codes 8528 41 00 and 8528 51 00.  These include CRT-
based monitors (under CN code 8528 41 00) and "[o]ther" types of monitors (under CN code 
8528 51 00). 
                                                     
 
343 Complainants' response to Panel question No. 66. 
344 Japan's response to Panel question No. 66. 
345 European Communities' second written submission, paras. 44-45. 
346 European Communities' second written submission, para. 46. 
347 European Communities' second written submission, para. 46; European Communities' second oral 
statement, paras. 25-26. 
348 European Communities' second written submission, para. 47. WT/DS375/R 
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  7.241  Non-CRT, "monitors" that are black and white or other monochrome are classifiable under 
the dutiable CN code 8528 59 10, and subject to a 14 per cent ad valorem duty, and colour "monitors" 
are classifiable under CN code 8528 59 90, and subject to a 14 per cent ad valorem duty   In 
accordance with an autonomous dut y suspension identified in the CN2010, black and white or other 
monochrome LCD monitors "equipped with either a digital-visual-interface (DVI) or a video-
graphics-array (VGA) connector or both, with a diagonal measurement of the screen not exceeding 77,50 cm (i.e. 30,5 inches), with an aspect ratio of  1:1, 4:3, 5:4 or 16:10, with a pixel resolution 
exceeding 1,92 mega pixels, and with a dot pitch not exceeding 0,3 mm" are exempt from duties.  
Colour LCD monitors "with a diagonal measurement  of the screen not exceeding 55,9 cm (i.e. 22 
inches), with an aspect ratio of 1:1, 4:3, 5: 4 or 16:10" are similarly exempt from duties. 
(b) CNEN 2008/C 133/01 
7.242  On 30 May 2008, the European Communities publis hed a new consolidated version of the 
CNENs in the EU Official Journal, i.e., CNEN 2008/C 133/01.
349 
7.243  CNEN 2008/C 133/01 includes, inter alia , the following CN breakouts of HS heading 8528: 
"8528 41 00  Of a kind solely or principa lly used in an automatic data-processing 
system of heading 8471  
Monitors of this subheading work with the cathode ray tube (CRT) display 
technology. 
The characteristics of monitors of this subheading generally facilitate 
prolonged periods of viewing at close proximity. 
Monitors of this subheading have the following characteristics: 
1. they are capable of accepting a signal only from the central 
processing unit of an automatic data-processing machine of heading 
8471: 
2.  they have generally an aspect ratio of 4:3 or 5:4; 3.  they frequently incorporate tilt and swivel adjusting mechanisms 
and glare-free surfaces; 
4. they may incorporate up to two loudspeakers. 
Monitors of the CRT type have the following specific characteristics: 
1. they are fitted with particular connectors such as SUB-D 
connectors; 
2. their dot screen pitch starts at 0,41 mm for medium resolution and 
gets smaller as the resolution increases. 
Monitors of this subheading cannot: 
-  be connected to a video source such as a DVD recorder or 
reproducer, a camera or a video camera recorder, a satellite receiver or a video game machine; 
                                                      
349 Foreword of CNEN 2008/C 133/01. The foreword clarifies that "[t]his version of the CNENs 
includes and, where appropriate, repl aces those published in the Official Journal of the European Union, C 
series, up to 11 April 2008. CNENs published in the Official Journal, C series, subsequent to that date remain in 
force and will be incorporated in the CNENs when revised".  WT/DS375/R 
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  -  incorporate components (for example, a chroma decoder, a Y/C 
separator) which enable the monitor to display an image from a 
composite video baseband signal (CVBS) or composite video 
signal (whose waveform conforms to a television broadcast 
standard such as NTSC, SECAM, PAL, D-MAC) or S-Video signal 
or when they are capable of re producing an image by accepting 
signals such as component vi deo (for example, YUV, YC BCR, 
YP BPR), Serial Digital Interface (S DI), High-Def inition-SDI (HD-
SDI) and digital video 'DV' (for example, MPEG1, MPEG2, MPEG4); 
-  be equipped with an infrared receiver for the reception of signals 
from an infrared remote control; 
-  have a programme channel up/down button; 
-  be fitted with interfaces such as DVI-D, DVI-I and High-Definition 
Multi-media Interface (HDMI) even  if these interfaces do not 
support high-bandwidth digital content protection (HDCP) 
encryption; 
-  be fitted with interfaces for 'slo t-in' modules or for other devices 
which enable a connection to a vi deo source or the reception of 
television signals; 
-  be used in systems other than  automatic data-processing systems 
(for example, home cinema systems, video editing systems, 
systems for medical imaging or systems of the printing or graphics 
industry for pre-press colour proofs). 
This subheading does not include indicator panels of heading 8531. 
8528 49 10  Black and white or other monochrome 
The Explanatory Notes to subheadings 8528 49 35 to 8528 49 99 apply, 
mutatis mutandis. 
 8528 49 35 to  Colour 
8528 49 99  
Monitors fall within these subheadings unless it can be demonstrated that 
they are of a kind solely or principally  used in an automatic data-processing 
system. 
The characteristics of monitors of th ese subheadings generally facilitate 
prolonged periods of viewing at a distance, for example, at exhibitions and in home cinema systems, television studios and video surveillance systems. 
Some monitors facilitate viewing at close proximity, for example, for 
measuring, checking or medical appli cations, rear view camera surveillance 
for vehicles or radio navigational aid apparatus. 
Certain monitors are fitted with connectors or interfaces such as 
Cinch/RCA, BNC, SCART, Mini DIN 4-pin/Hosiden, DVI-D, DVI-I and High-Definition Multi-media Interface (HDMI).  These connectors or 
interfaces allow for the reception of a signal from a video source such as a 
DVD recorder or reproducer, a camer a or a video camera recorder, a 
satellite receiver or a video game machine.  These monitors may also be 
fitted with interfaces for automatic da ta-processing machines of heading 
8471. WT/DS375/R 
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  Some monitors may have interfaces that  allow for the reception of signals 
from sources such as a cash register, an automatic teller machine (ATM), a 
radio navigational aid apparatus, a numerical control panel or a 
programmable memory controller, apparatus for measuring, checking or 
medical applications of Chapter 90. 
They may have separate inputs for red (R), green (G) and blue (B) signals, 
or they may incorporate co mponents (for example, a chroma decoder, a Y/C 
separator) which enable the monitor to display an image from a composite 
video baseband signal (CVBS) or composite video signal (whose waveform conforms to a broadcast standard su ch as NTSC, SECAM, PAL, D-MAC) 
or S-Video signal or when they ar e capable of reproducing an image by 
accepting signals such as component  video (for example, YUV, YC
BCR, 
YP BPR), Serial Digital Interface (SDI ), High-Definition-SDI (HD-SDI) and 
digital video 'DV' (for example, MPEG1, MPEG2, MPEG4). 
They may be fitted with connectors for the reception of audio signals. 
These subheadings do not include: 
(a)  videophones (subheading 8517 69 10); 
(b)  indicator panels of heading 8531. 
8528 51 00  Other monitors 
to 8528 59 90 
Monitors of these subheadings work on display technologies such as liquid 
crystal display (LCD), organic light  emitting diode (OLED) or plasma. 
These subheadings include monitors co mprising a projector and a screen in 
the same housing. 
8528 51 00  Of a kind solely or principa lly used in an automatic data-processing 
system of heading 8471 
The Explanatory Notes to subheading 8528 41 00 apply, mutatis mutandis . 
Monitors falling within this subheading generally have a diagonal 
measurement of the screen of 48.5 cm (19 inches) or less. 
8528 59 10 Other 
and 8528 59 90 
The Explanatory Notes to subheadings 8528 49 35 to 8528 49 99 apply, 
mutatis mutandis.  
For the monitors of these subheadings the aspect ratio is often 16:9 or 
16:10."  
(i) Arguments of the parties 
7.244  The complainants  argue that CNEN 2008/C 133/01 limits  duty-free coverage under CN code 
8528 51 00 to "monitors" that "are capable of accepting a signal only from the central processing unit 
of an automatic data-processing machine of heading 84.71", those that "cannot ... be connected to a  WT/DS375/R 
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  video source such as a DVD recorder or reproducer, camera or a video camera recorder, a satellite 
receiver or a video game machine", and thus can only accept a signal from a CPU of an automatic 
data-processing machine; and otherwise, those that ar e not fitted with interfaces such as DVI. Subject 
to the condition in the note to CN code 8528 51 00 that "[m]onitors within this subheading generally 
have a diagonal measurement of the screen of 48,5 cm (19 inches) or less", the complainants submit 
that monitors that are princi pally for use with automatic da ta-processing systems or other ITA 
products are excluded from duty-free tr eatment under CN code 8528 51 00.
350 The United States  and 
Chinese Taipei  contend that these criteria apply under CN code 8528 51 00 on the basis of the 
"mutatis mutandis " language in the explanatory notes that refers to CN code 8528 41 00.351 The 
United States, in addition, observes that the language in the note to CN code 8528 59 90 in CNEN 2008/C 133/01 states that monitors classifiable under the CN code 8528 59 90 " may also  be 
fitted with interfaces for automatic da ta-processing machines of heading 8471."
352 In its view, a DVI 
connector is such an interface.  Thus, the United Stat es argues, even if a monitor is "for" an automatic 
data-processing machine, it is classified under 8528 59 90 and subject to a 14 per cent duty.353   
7.245  The European Communities ' arguments concerning whether the CNENs are "not legally 
binding" or otherwise "inapplicable" to the extent  they conflict with the CN, are set forth in 
paragraphs 7.147-7.148 above .  In addition, the European Comm unities argues that the complainants 
have limited their challenge to the mutatis mutandis  language in the CNEN to CN code 8528 51 00. 
While it argues that the CNEN to CN code 8528 41 00 provide for a list of relevant classification 
criteria, the CNEN to CN code 8528 41 00 are not in themselves challenged under either of the 
claims. 354   Due to the language in the CNEN to CN code 8528 41 00 "monitors of this subheading 
work with the cathode ray tube (CRT) display tec hnology", the European Communities argues that, in 
order to apply the CNEN to other technologies mutatis mutandis , it is necessary to distinguish 
between the technical criteria that are relevant only in relation to CRT technology. Thus, it argues, the 
words mutatis mutandis  do not incorporate all of the CNEN to CN code 8528 41 00 into the CNEN to 
CN code 8528 51 00.355  For instance, it notes the language "[m]onitors of the CRT type have the 
following specific characteristics ..." . In addition, the European Co mmunities argues that the language 
of the CNEN does not preclude the exercise of discr etion in the classification of monitors based on 
objective characteristics.356 To the extent the criteria were ev en applied rigidly, the European 
Communities asserts that the criteria are no longer app licable under EC law in light of the European 
                                                      
350 United States' first written submission, para. 124;  Japan's first written submission, paras. 226 and 
250; Chinese Taipei's first written submission, paras. 84 and 180.  The United States refers to several BTIs 
issued by EC member States in suppor t of its arguments that monitors have been classified (or reclassified) as 
under a dutiable heading due to the presence of DVI.  It refers in particular, to a BTI issued by one EC member State stating that duty-free computer monitors "must be capable of receivi ng a signal from a computer and no 
other source", and that a "LCD monitor with DVI inputs and a diagonal measurement of the screen of [19 
inches] or less and with an aspect ratio of 4:3 or 5:4" "with video or DVI inputs" is classified in CN code 8528 59 90 and subject to duties (United States' first written submission, pa ra. 127 (Exhibit US-50)). 
351 United States' second oral statement, para. 30; Chin ese Taipei's second oral statement, para. 31. The 
United States argues that the BTI demonstrate that EU member States have applied the DVI and connectability criteria in the CNEN in classifying goods under CN code 8528 59 90 on the basis of the " mutatis mutandis " 
language appearing in that code. (United States' second oral statement, para. 31). 
352 United States' first written submission, para. 126 (emphasis added). 
353 United States' first written submission, para. 126 (emphasis added). 
354 European Communities' second written submission, para. 50. 
355 European Communities' second written submission, para. 51. 
356 European Communities first written submission, paras. 66-69; European Communities' second 
written submission, para. 55. WT/DS375/R 
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  Court of Justice's Kamino judgment.
357  Finally the European Communities argues it is in the process 
of repealing or amending CNEN 2008/C 133/01 in light of the judgment. 
(ii) Consideration by the Panel 
7.246  The Panel  recalls its finding in paragraph 7.160  above that CNENs identified by the 
complainants in this dispute are measure s that may be challenged "as such".   
7.247  The complainants have identified language in the CNEN to CN code 8528 51 00 in CNEN 
2008/C 133/01 pertaining to monitors "[o]f a kind sole ly or principally used in an automatic data-
processing system of heading 8471". They note th e language that "monitors falling within this 
subheading generally have a diagona l measurement of the screen of 48.5 cm (19 inches) or less" as 
well as language appearing in the CN EN to CN code 8528 51 00 stating that "[t]he Explanatory Notes 
to subheading 8528 41 00 apply, mutatis mutandis ".  Within the heading to CN code 8528 41 00, the 
complainants note the conditions that "[m]onitors of  this subheading cannot: - be connected to a video 
source such as a DVD recorder or re producer, a camera or a video camera recorder, a satellite receiver 
or a video game machine ... – be fitted with interfaces such as DVI-D, DVI-I and High Definition 
Multi-media Interface (HDMI) even if these interfa ces do not support high-bandwidth digital content 
protection (HDCP) encryption". 
7.248  In addition, the Panel notes that language in the CNEN to CN codes 8528 59 10 to 8528 59 90 
states that "[t]he Explanatory Notes to subheadings 8528 49 35 to 8528 49 99 apply, mutatis 
mutandis ".  This Note states that "[m]onitors fa ll within these subheadings unless it can be 
demonstrated that they are of a kind solely or  principally used in an automatic data-processing 
system". 
7.249  In respect of CN codes 8528 51 00 and 8528 59 10 to 8528 59 90, the text of CNEN 
2008/C 133/01 states that the Explanatory Notes to other subheadings apply, " mutatis mutandis ".  The 
dictionary definition of the Latin term " mutatis mutandis " is literally "things being changed that have 
to be changed", or otherwise "making the neces sary changes; with due alteration of details".358  In the 
context of its use in the identified section of CN EN 2008/C 133/01, we understand this reference to 
indicate that the entirety of the CNEN of the refere nced CN code should apply to the extent possible, 
except for necessary changes, wherein due alteration of a ppropriate details would be made.   
7.250  We understand this to mean that the complete CNEN to CN code 8528 41 00 would apply to 
the CNEN to CN code 8528 51 00, except for elemen ts or criteria that would no longer make sense in 
the context of CN code 8528 51 00.  This would exclude, for instance, the reference under CN code 
8528 41 00 to "cathode ray tube (CRT) display te chnology".  Thus, reference to CRT technology 
would be substituted with display technology refe rred to in the context of CN code 8528 51 00, 
including for instance, "liquid crystal display (LCD ), organic light emitting diode (OLED) or plasma".  
Otherwise, the essence of the CN EN to CN code 8528 41 00 would apply.  The same approach 
applies under CN code 8528 59 10. Ac cordingly, the Panel will proceed on this basis, making changes 
only where necessary. 
7.251  We begin with reference to duty-free CN code  8528 51 00 "Of a kind solely or principally 
used in an automatic data-processing system of h eading 8471" that falls under the subheading for 
"Other monitors". This heading is described as applying to monitors that "work on display 
                                                      
357 European Communities' second written submission, paras. 56-61 (referring to European Court of 
Justice (Kamino), para. 47 (Exhibit TPKM-52)). 
358 The Shorter Oxford Dictionary (2003), p. 1870.  WT/DS375/R 
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  technologies such as liquid crystal display (LCD), organic light emitting diode (OLED) or plasma". 
The CNEN to CN code 8528 51 00 applies the CNEN to CN code 8528 41 00, mutatis mutandis , and 
further indicates that monitors fa lling within the heading "generally  have a diagonal measurement of 
the screen of 48.5 cm (19 inches) or less". In  addition to the guidan ce provided for diagonal 
measurement, monitors of this heading thereby ha ve the "capab[ility] of accepting a signal only from 
the central processing unit of an automatic data -processing machine of heading 8471", among other 
characteristics.  Further, these monitors "cannot ... be connected to a video source such as a DVD 
recorder or reproducer, a camera or a video came ra recorder, a satellite receiver or a video game 
machine", "cannot ... be fitted with interfaces su ch as DVI-D, DVI-I and High-Definition Multi-media 
Interface (HDMI) ...", and "cannot ... be used in sy stems other than automatic data-processing systems 
...".
359 
7.252  The Panel considers that, under the CN, read in  conjunction with the CNEN, a display based 
on LCD, OLED or plasma technology that is cl assified under CN code 8528 51 00, like those 
classifiable in 8528 41 00, cannot be capable of connecting to other sources.  Thus, these monitors 
may accept a signal only from an automatic data-processing machin e. In addition, a monitor that is 
classified under CN code 8528 51 00 cannot  be fitted with DVI-D or DVI-I interfaces and other like 
interfaces, including HDMI, and potentially other conn ectors that serve similar purposes (as the notes 
state that covered monitors "ca nnot ... be fitted with interfaces such as DVI-D, DVI-I ...").   
7.253  In our view, due to the definitive and absolute nature of the cited language, the particular 
CNEN may be said to operate on a " per se " basis.  In other words, these aspects of the CNEN provide 
no room for discretion for customs authorities.  The mere presence, for example, of a DVI, or the capability to accept signals from a source other than an automatic data-processi ng machine results in a 
subject monitor being excluded from CN code 8528 51 00 (due to the operation of the mutatis 
mutandis  condition in the CNEN to that provision).  
7.254  We note that this restrictive language contrast s with less restrictive language used in other 
aspects of the CNENs. For instance, the CNEN to  CN code 8528 41 00 (which is applicable to 
products classified under CN code 8528 51 00, via the mutatis mutandis  condition appearing in the 
CNEN to CN code 8528 51 00) states that "the ch aracteristics of monitors of this subheading 
generally facilitate prolonged periods of viewi ng at close proximity"; "they have generally an aspect 
ratio of 4:3 or 5:4"; "they frequently  incorporate tilt and swivel adjusting mechanisms and glare-free 
surfaces"; and "they may incorporate up to two loudspeakers". No thing in the text of the CNEN, for 
example, automatically precludes classification simply because a monitor does not facilitate 
prolonged viewing at close proximity, or have an aspect ratio of 4:3 or 5:4. 
7.255  CN codes 8528 59 10 and 8528 59 90 apply to "o ther" monitors than those classifiable under 
CN code 8528 51 00 that "work on display technologi es such as liquid crystal display (LCD), organic 
light emitting diode (OLED) or plasma".  The CNEN to CN code 8528 59 10 and 8528 59  90 applies 
the CNEN to CN codes 8528 49 35 to 8528 49 99, mutatis mutandis , which apply exclusively to 
"[c]olour" monitors.
360  The CNEN to these headings indicates that monitors fall under these headings 
"unless  it can be demonstrated that they are of a kind so lely or principally used in an automatic data-
processing system".  Moreover, it is indicated that certain monitors classifiable under this CN code 
are fitted with interfaces, including inter alia  DVI-D, DVI-I and HDMI, that "allow for the reception 
                                                      
359 CNEN 2008/C 133/01 (Exhibits US-49; JPN-18; TPKM-23). 
360 The same Explanatory Notes apply mutatis mutandis to CRT-monitors of CN code 8528 49 10, i.e. 
black and white or monochrome CRT-based monitors that are not of a kind solely or principally used in an 
ADP-system of heading 8471.   WT/DS375/R 
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  of a signal from a video source such as a DVD recorder or reproducer, a camera or a video camera 
recorder, a satellite receiver or a video game machine". 
7.256  Therefore, the Panel concludes that the CNEN to CN code 8528 51 00 requires that monitors 
be excluded from that subheading if they are cap able of receiving signals from sources other than 
automatic data-processing machines, as well as mon itors that are fitted with DVI, HDMI or other 
interfaces capable of similar function. 
7.257  The European Communities has confirmed that CN code 8528 51 00 is the only possible 
duty-free CN code available for non-CRT-based colour, flat panel monitors.
361   
7.258  Therefore, we conclude that monitors that matc h one or both criteria, i.e., that are capable of 
receiving signals from sources other than an automa tic data-processing machine, or are fitted with 
DVI, HDMI or similar connectors may not be classified under the duty-free subheading 8528 51.  These criteria work as mandatory, "per se", or "autom atic" rules.  Subject monitors therefore would 
have to be classified under CN code 8528 59 10 or 8528 59 90, which carries a 14 per cent duty. 
(c) Commission Regulation Nos. 634/2005 and 2171/2005 
7.259  Commission Regulation No. 634/2005, which was adopted on 26 April 2005 and published in 
the EU Official Journal on 27 April 2005, concer ns the classification of certain "colour monitor[s]" 
using LCD technology.   
7.260  Item 4 of the Annex to this Regulation con cerns the classification under CN code 8528 21 90 
of the following product: 
"A colour monitor of the liquid crystal device (LCD) type with a diagonal 
measurement of the screen of 38,1 cm (15" ) and overall dimensions of 30,5 (W) × 
22,9 (H) × 8,9 (D) cm with: - maximum resolution of 1 024 × 768 pixels [and] scan frequencies of 30-80 kHz (horizontal) and 56-75 Hz (vertical).  The product has the following interfaces: - VGA in[;] - DVI in[;] - BNC in and out[;] - S-video (Y/C) in 
and out[;] - Audio in and out.  The prod uct can display signals received from various 
sources, such as an automatic data-processi ng machine, a closed circuit television 
system, a DVD player or a camcorder." 
7.261  Item 4 of the Annex indicates that "[c]lassifi cation under subheading 8471 60 is excluded, as 
the monitor is not of a kind solely or principall y used in an automatic data-processing system (see 
Note 5 to Chapter 84), in view of its capab ilities to display signals from various sources." 
7.262  Commission Regulation No. 2171/2005, which was adopted on 23 December 2005 and 
published in the Official Journal of the Europ ean Communities on 29 December 2005, concerns the 
classification of certain "colour monitor[s]" using LCD technology.   
7.263  Item 1 of the Annex to this Regulation concerns the classification under CN code 
8471 60 80
362 of the following product: 
                                                      
361 See para. 7.235 above; European Communities second written submission, para. 44. 
362 We recall from para. 7.231 abov e that CN code 8471 60 80 replaced the duty-free heading CN code 
8471 60 90 in the CN2006.  CN codes 8528 41 00 and 8528 51 00, which replaced CN code 8471 60 80, were 
introduced in the CN2007.  WT/DS375/R 
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  "A colour monitor of the liquid crystal device (LCD) type with a diagonal 
measurement of the screen of 38,1 cm (15 ″) and overall dimensions of 34,5 (W) × 
35,3 (H) × 16,5 (D) cm (aspect ratio 5:4) with: - a maximum resolution of 1 024 × 
768 pixels at 75 Hz, - a pixel size of 0,279 mm.  The product has a mini D-sub 15 pin 
interface only.  It is designed for working only in conjunction with a product classifiable under heading 8471". 
7.264  Item 1 of the Annex indicates that "[t]he in tended use of the monitor is that of accepting 
signals from the central processing unit of an au tomatic data-processing system".  The following 
further explanation is provided: 
"The product is also capable of re producing both video and sound signals. 
Nevertheless, in view of its size and its  limited capability of receiving signals from a 
source other than an automatic data-pro cessing machine via a card without video 
processing features, it is considered to be of a kind solely or principally used in an 
automatic data-processing system". 
7.265  Item 2 of the Annex to this Regulation con cerns the classification under CN code 8528 21 90 
of the following product: 
"A colour monitor of the liquid crystal device (LCD) type with a diagonal 
measurement of the screen of 50,8 cm (20 ″) with overall dimensions of 47,1 (W) × 
40,4 (H) × 17,4 (D) cm (aspect ratio 16:10) with: - a screen pixel density of 100 dpi, - 
a pixel size of 0,25 mm, - a maximum resolution of 1 680 × 1 050 pixels, - a fixed 
band width of 120 MHz.  The product is d esigned for use in the development of 
sophisticated graphics (CAD/CAM systems) and video film editing and production.  
The product is equipped with a DVI interface enabling the product to display signals received from an automatic data-processing machine via a graphic card capable of 
processing video signals (for example for purposes of video film editing and 
production).  The product also displays text s, spread sheets, presentations and the 
like." 
7.266  Item 2 of the Annex indicates that "[c]lassi fication under subheading 8471 60 is excluded as 
the monitor is not of a kind solely or principally used in an automatic data-processing system  (see 
Note 5 (B) to Chapter 84)." 
7.267  Item 3 of the Annex to this Commissi on Regulation No. 2171/2005 concerns the 
classification under CN code 8528 21 90 of the following product: 
"A colour monitor of the liquid crystal device (LCD) type with a diagonal 
measurement of the screen of 54 cm (21 ″) and overall dimensions of 46,7 (W) × 39,1 
(H) × 20 (D) cm (aspect ratio 4:3) with: - a maximum resolution of 1 600 × 1 200 
pixels at 60 Hz, - a pixel size of 0,27 mm.  The product has the following interfaces:  
- mini D-sub 15 pin, - DVI-D, - DVI-I, - audio in and out.  The product can display signals received from various sources such as a closed circuit television system, a DVD player, a camcorder or an automatic data-processing machine." 
7.268  Item 3 of the Annex indicates that "[c]lassi fication under subheading 8471 60 is excluded as 
the monitor is not of a kind solely or principall y used in an automatic data-processing system (see 
Note 5 to Chapter 84), but is capable of  displaying signals from various sources." WT/DS375/R 
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  7.269  Item 4 of the Annex to Commission Regula tion No. 2171/2005 concerns the classification 
under CN code 8528 21 90 of the following product: 
"A colour monitor of the liquid crystal device (LCD) type with a diagonal 
measurement of the screen of 76 cm (30 ″) and overall dimensions of 71 (W) × 45 (H) 
× 11 (D) cm (aspect ratio 15:9) with: - a maximum resolution of 1 024 × 768 pixels, - a pixel size of 0,50 mm.  The product has the following interfaces: - 15-pin mini DIN, - BNC, - 4-pin mini DIN, - RS 232 C, - DV I-D, - Stereo and PC audio.  The product 
can display signals received from various sources such as a closed circuit television 
system, a DVD player, a camcorder or an automatic data-processing machine." 
7.270  Item 4 of the Annex indicates that "[c]lassi fication under subheading 8471 60 is excluded as 
the monitor is not of a kind solely or principall y used in an automatic data-processing system (see 
Note 5 to Chapter 84), but is capable of  displaying signals from various sources." 
(i) Arguments of the parties 
7.271  The complainants  argue that the cited items in Commission Regulation Nos. 634/2005 and 
2171/2005 determine tariff treatment based on a m onitor's "capabilities to display signals from 
various sources", whether the monitor "is not of a kind solely or principally used  in an automatic data-
processing system", or whether the monitor "is capab le of displaying signals from various sources".  
In other words, classification is determined based on whether or not a monitor is exclusively for use 
with an automatic data-processing system.
363  T h e  United States  argues that, the fact that the 
European Communities concluded that the display devices in item 4 in the Annex to Commission 
Regulation No. 634/2005 and items 3 and 4 of Co mmission Regulation No. 2171/2005 were classified 
in a dutiable heading, fails to support the conclu sion that the presence of a DVI connector is not 
dispositive.  The United States claims that the Eu ropean Communities has con ceded, with respect to 
item 2 of Council Regulation No. 2 171/2005, that the presence of a DVI connector is dispositive of 
classification.364  The complainants additionally rej ect that item 1 of Commission Regulation 
No. 2171/2005 provides a basis to argue that disp lays capable of connecting to multiple sources may 
be extended duty-free treatment.  In this respect, the complainants argue that the device is not 
equipped with a DVI interface or any other connector that would permit the device to be used with sources other than an automatic data-processing machine.
365  Finally, the United States submits BTIs 
of EC customs authorities classifying such devices in a dutiable heading366, and argues that the 
European Communities has cited no evidence from d ecisions of customs authorities to demonstrate 
that a device with DVI or a device capable of recei ving signals from a source other than an automatic 
data-processing machine could be cl assified in a duty-free heading.367   
7.272  As addressed in paragraphs 7.161-7.167 above, the European Communities  argues that 
Commission Regulation Nos. 634/2005 and 2171/2005 "hav e effectively lost their relevance" and that 
it is in the process of repealing or replacing them.368  Apart from this, the European Communities 
                                                      
363 United States' first written submission, paras. 125-126; United States' second written submission, 
para. 69; Japan's first written submission, para. 245; Chinese Taipei's first written submission, paras. 69 and 77. 
364 United States' second written submission, para. 70. 
365 United States' second written submission, para. 71; complainants' response to Panel question 
No 145. 
366 Exhibit US-50. 
367 United States' second written submission, para. 71 (referring to BTIs IE 06NT-14-501-01, IE06NT-
14-501-02 and IE06NT-14-501-03 (Exhibit US-50)). 
368 European Communities' first written submission, para. 95; European Communities' second written 
submission, para. 63.  WT/DS375/R 
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  specifically argues that item 1 in the annex to  Commission Regulation No. 2171/2005 demonstrates 
that a monitor which is capable of reproducing bot h video and sound signals, was classified under 
duty-free CN code 8471 60 80.
369  Thus, it argues, it is not correct that the European Communities 
would in all cases "limit the scope of the FPDs covered by the concession to those that can only be 
used with an ADP machine".370  In addition, the European Communities argues that these 
Commission Regulations demonstrate that the existen ce of a DVI has not been necessarily dispositive.  
In particular, the European Communities argues that DVI is merely listed among many other technical 
characteristics in item 4 in the Annex to Commi ssion Regulation No. 634/2005, and items 3 and 4 in 
the Annex to Commission Regulation No. 2171/2005.  In its view, only item 2 in the annex to 
Commission Regulation No. 2171/2005 could be argu ed as demonstrating that the presence of a DVI 
connector was decisive for classification.371    
(ii) Consideration by the Panel 
7.273  The Panel  recalls from paragraphs 7. 166-7.167 above that it is a ppropriate to proceed to 
make findings and recommendations with respect to  the WTO consistency of Commission Regulation 
Nos. 634/2005 and 2171/2005.   
7.274  We now consider the effect of the relevant  items of the two Commission Regulations.  
7.275  We note that Commission Regulation Nos. 634/2005 and 2171/2005 provide for classification 
of certain LCD monitors within CN codes 8471 60  80 and 8528 21 90 as these codes existed under the 
HS2002.372  As the European Communities has explained, these were replaced by CN codes 
8528 41 00 and 8528 59 90, respectively, in the CN2007, following implementation of the HS2007.373  
In the context of this dispute, Japan and Chinese Taipei have argued that national customs authorities 
within the European Communities can still determ ine the appropriate customs classification by 
relying on a "conversion table" that relates back to  pre-existing CN headings.  Thereby, for example, 
they argue that customs officials may conclude that an apparatus previously classified under a 
superseded CN code would now fall under the updated CN code.374  In addition, the United States 
submitted a BTI on record, claiming that French  customs authorities relied on a classification 
regulation based on a repealed CN code to justify cl assifying a product under the relevant updated CN 
code.375  In response, the European Communities ar gues that the conversion table "has not been 
adopted by the Commission", and "reflects excl usively the views of the Commission services 
responsible for customs matters".376  In addition, it argues that, in the BTI referred to by the United 
States, the discussed classification regulation w as referred to "merely as additional authority 
supporting interpretation of Council Regulation 2658/87".377 
                                                      
369 European Communities' first written submission, para. 67. 
370 European Communities' first written submission, para. 68; European Communities' second oral 
statement para. 36. 
371 European Communities' response to Panel question No. 23. 
372 Articles 1 of Commission Regulation Nos. 634/2005 and 2171/2005. 
373 See European Communities' first written submission, para. 95. 
374 Japan's and Chinese Taipei's responses to Panel question, No. 24; Chinese Taipei's second written 
submission, paras. 52 and 53. 
375 The United States, e.g., refers to BTI FR-E4-2007-002262-R (31 January 2007) (Exhibit US-62), 
issued by France on 13 January 2007, in which French customs officials classified a multifunctional digital 
machine in CN code 8443 31 99 while referring to Commission Regulation No. 517/1999, which itself 
referenced CN code 9009 12 00.  (United States' response to Panel question, No. 18, fn. 43). 
376 European Communities' second written submission, para. 156. 
377 European Communities' second written submission, para. 158. WT/DS375/R 
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  7.276  We note the European Communities' view that CN codes 8471 60 80 and 8528 21 90 no 
longer appear within the CN.   However, apart from a change in CN codes, there is no evidence before 
us to suggest that the classification guidance contai ned in the Classification Regulations has changed.  
Moreover, there is some evidence that at least in  some instances national authorities continue to 
support their classification decisions with refe rence to classification measures using older CN 
codes.
378  On this basis, the Panel will continue its  assessment of the effect of these classification 
regulations. 
7.277  The products in item 4 of Commission Regul ation No. 634/2005, and items 3 and 4 of 
Commission Regulation No. 2171/2005 describe LCD colour displays with diagonal screen 
measurements of 15, 21 and 30 inches.   All three items refer to displays that are fitted with a DVI 
interface.379 In addition, all three items described displa ys that are capable of displaying signals 
received from "various sources" in addition to an automatic data-processing machine.  Notably, the 
product in item 4 of Commission Regulation No . 634/2005 is excluded from classification under 
subheading 8471 60 because "the monitor is not of a ki nd solely or principally used in an automatic 
data-processing system (see Note 5 to Chapter 84), i n view of its capabilities to display signals from 
various sources " (emphasis added).  Each of the products  described in items 3 and 4 of Commission 
Regulation No. 2171/2005 is excluded from cla ssification under subheading 8471 60 because "the 
monitor is not of a kind solely or principally used  in an automatic data-processing system (see Note 5 
to Chapter 84), but is capable of displaying signals from various sources " (emphasis added). 
7.278  In light of the juxtaposition of the language "solely or principally used in an automatic data-
processing system" with the capability to display si gnals from "various sources", we understand that 
the mere capability to display signals from other sources, and, ergo, connect to those other sources, is 
enough to exclude the particular display from duty-fr ee treatment.  The language "but is" that is used 
in items 3 and 4 of Commission Regulation No. 2171/ 2005 strongly suggests that monitors simply 
capable of displaying signals from various sources are not considered to be "sol ely or principally" for 
use in an ADP.  The language in item 4 of Co mmission Regulation No. 634/2005, "in view of its 
capabilities", while not quite as definitive,  suggests a similar approach.    
7.279  We note that the product in item 2 of Commission Regulation No. 2171/2005 – a LCD colour 
monitor with a 20 inch diagonal screen measurement – is also fitted with a DVI interface.  However 
the reason given for excluding the product is dis tinct from the reason provided for excluding the 
above products.  In this case, the product is excluded from classification under subheading 8471 60 
because "the monitor is not of a kind solely or  principally used in an automatic data-processing 
system".  Absent is any reference to the capability to display signals  from "various" sources other than 
an automatic data-processing machine.380  We consider, however, that this does not support the 
European Communities' view that displays with DVI , capable of connecting to sources other than an 
automatic data-processing machine, may be granted duty-free treatment.  
7.280  Finally, we note that the product describe d in item 1 of Commission Regulation No. 
2171/2005 – an LCD monitor with a 15 inch diagonal screen measurement, having "a mini D-sub 15 
                                                      
378 See, for example, fn. 375 above. 
379 Item 4 of Commission Regulation No. 634/2005, refers to "DVI in"; item 3 of Commission 
Regulation No. 2171/2005 refers to both "DVI-D" and "DVI-I" (US-46; JPN-16; TPKM-19); and its item 4 refers to "DVI-D" (Exhibits US-15; JPN-17; TPKM-20)  . 
380 We note, item 2 of Commission Regulation No. 2171/2005 provides that "[t]he intended use of the 
product is that of displaying video signals for development of graphics or video film editing and production in a CAD/CAM system or a video editing system (see Note 5 (E) to Chapter 84)", without reference to the capability 
to connect to other sources than such a syst em or an automatic data-processing machine.  WT/DS375/R 
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  pin interface only", and  "designed for working only  in conjunction with a product classifiable under 
heading 8471" – does not have a DVI interface.  We  are unclear to what extent the product may be 
used with other devices due to the indication that it is "designed for working only in conjunction with 
a product classifiable under heading 8471" and has "limited capability of receiving signals from a 
source other than an automatic data-processing m achine".  In addition, we understand that the 
application of item 1 Commission Regulation No. 2171/2005 is limited to products of a certain 
diagonal screen measurement.
381  Furthermore, we explained above that items 3 and 4 clearly exclude 
certain displays from classifica tion under a duty-free heading based  on their ability to connect to 
sources other than an automatic data-processing machine.   
7.281  Taken together, we consider that Commissi on Regulation Nos. 634/2005 and 2171/2005 have 
the general effect of excluding from duty-free treat ment certain LCD colour monitors because they 
are capable of displaying signals from sources ot her than an automatic data-processing machine.  
According to these regulations, those products de scribed in item 4 of Commission Regulation No. 
634/2005 and items 3 and 4 of Commission Regula tion No. 2171/2005 in connection with CN code 
8528 21 90 are excluded from duty-free classification because they are "not of a kind solely or 
principally used in an automatic data-processing sy stem".  Only the product described in item 1 of 
Commission Regulation No. 2171/2005 is described as "of a kind solely or principally used in an automatic data-processing system", with emphasis give n to the fact that it is "designed for working 
only in conjunction with a product classifiable un der heading 8471" and its "limited capability of 
receiving signals from a source other than an auto matic data-processing machine...".  Moreover, we 
note that this product is described as havi ng a "mini D-sub 15 pin interface only".   
7.282  Under these regulations, the determination of wh ether to exclude the products from duty-free 
treatment appeared to be independent of the dia gonal screen measurement of the particular product.  
At a minimum, we note that a monitor with a 15- inch diagonal screen measurement and a "DVI in" 
interface described in item 4 of  Commission Re gulation No. 634/2005 was excluded, whereas item 1 
of Commission Regulation No. 2171/2005 was not, d espite also having a 15-inch diagonal screen 
measurement, though no DVI interface.  
7.283  The measures do not expressly indicate whet her the presence of DVI connectability is 
dispositive in determining classification under a dutiable heading. However, we note, of the five items 
considered, those four that were excluded from classification under a duty-free heading were 
described as possessing some variation of a DVI (whe re a "DVI in", both "DVI-D" and "DVI-I", or 
"DVI-D") interface. The product classified under duty-free CN code 8471 60 80 under item 1 of 
Commission Regulation No. 2171/2005 was describe d as having a "mini D-sub 15 pin interface 
only".
382 
                                                      
381 We note item 1 of Commission Regulation No. 2171/2005 provides "in view of its size and its 
limited capability of receivi ng signals from a source other than an au tomatic data-processing machine via a card 
without video processing features, it is considered to be of a kind solely or principally used in an automatic data-
processing system"  In light of this rationale, we understa nd that size is a relevant consideration in determining 
whether such a product would qualify for du ty-free treatment under subheading 8471 60. 
382 While the linkage between the presence of a DVI interface and connectability to sources other than 
an automatic data-processing machine is not express, it appears to be implied, in particular, when Commission 
Regulation No. 2171/2005 is read in its entirety.  Other than describing the dimension, resolution and pixel size, item 1 of this Regulation otherwise indicates that the "[t]he product has a mini D-sub 15 pin interface only".  
Immediately thereafter, item 1 indicates  that "[the product] is designed for working only in conjunction with a 
product classifiable under heading 8471". In addition to th e fact that these two sentences appear in sequence, the 
sentences further appear directly related due to the fact that the first sentence refers to "The product" while the 
second sentence begins with the indefinite "It".  In contrast, for instance, item 3 of Commission Regulation No. WT/DS375/R 
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  7.284    Accordingly, the Panel concludes that item 4 in the Annex of Commission Regulation Nos. 
634/2005 and items 2, 3 and 4 in the Annex of 2171/2005 require that LCD monitors that are capable of displaying signals from sources other than an automatic data-processing machine, as described in 
those items, shall be classified in a dutiable headi ng, which sets a 14 per cent duty.  Under the current 
CN2010, such products would thus be  excluded from CN code 8528 51 00. 
(d) The continuation of the duty suspensi on under Council Regulation No. 179/2009 
7.285  The Panel  recalls its finding in paragraph 7.1 90 above that Council Regulations Nos. 
301/2007 and 179/2009 were implem ented as either an extension or amendment of Council 
Regulation No. 493/2005, and are within the Panel's terms of reference.  Because Council Regulation 
No. 179/2009 replaced Council Regulation No. 301/2007 in the EC legal order, effective 1 January 
2009, as explained, we will limit our assessment to the effects of Council Regulation No. 179/2009. 
7.286  We also explained in paragraph 7.184 above  that Article 1 of Council Regulation No. 
179/2009 sets forth the specific legal obligation to autonomously suspend 14 per cent ad valorem 
duties, until 31 December 2010 for certain products.  In particular, under CN code 8528 59 10, duties 
are to be suspended for:  
"[B]lack and white or other monochrome monitors, using liquid crystal display 
technology, equipped with either digital vi sual interface (DVI) or a video graphics 
array (VGA) connector or both with a diagonal measurement of the screen not 
exceeding 77,50 cm (i.e. 30,5 inches), with an  aspect ratio of 1:1, 4:3, 5:4 or 16:10, 
with a pixel resolution exceeding 1,92 me ga pixels, and with a dot pitch not 
exceeding 0,3 mm".   
7.287  Under CN code 8528 59 90, duties are to be suspended for  
"[C]olour monitors, using liquid crysta l display technology, with a diagonal 
measurement of the screen not exceeding 55,9 cm (i.e. 22 inches), with an aspect 
ratio of 1:1, 4:3, 5:4 or 16:10". 
(i) Arguments of the parties 
7.288  The European Communities  explains that Council Regula tion No. 493/2005 expired on 31 
December 2008, and was thereafter replaced by Council Regulation No. 179/2009, beginning on 1 
January 2009. It thus considers that Council Regul ation No. 179/2009 is relevant to the Panel's 
analysis.
383 The European Communities argues that th e legal effect of Council Regulation No. 
179/2009 is to suspend the application of duti es through 31 December 2010 on certain flat panel 
colour video monitors having inter alia  an aspect ratio 1:1, 4:3, 5:4 or 16:10 and sizes up to 22 inches. 
                                                                                                                                                                     
2171/2005 notes that "[t]he produc t can display signals received from va rious sources...", immediately after 
specifying a multitude of interfaces that  include a "mini D-sub 15 pin" as we ll as "DVI-D" and DVI-D".  In our 
view, the language strongly suggests  that the presence of a DVI interf ace has been a leading factor in 
establishing whether a product is "of a kind solely or principally used in an automatic data-processing system".  
We note, in addition, as the complainants have indicat ed, that there have been at least three BTI in which 
customs officials exclusively noted th e presence of a DVI within the descri ption of the product in reaching a 
decision to classify a product under dutiable CN code 8528 21 90 (currently 8528 59 10) (See, e.g., IE06NT-14-
501-01, IE06NT-14-501-02 and IE06NT-14-501-03 (Exhibit US-50)). 
383 European Communities' first writte n submission, para. 94 (Exhibit EC-9).  The Panel recalls its 
determination in paragraph 7.190 above that Council Regulation No. 179/2009 amended Council Regulation 
No. 493/2005 and would therefore form the basis of the Panel's assessment of the duty suspension.  WT/DS375/R 
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  The European Communities explains further that du ties are suspended for black and white or other 
monochrome LCD monitors up to the size 30,5 inches equipped inter alia  with a DVI or VGA 
connector.
384  The European Communities argues that the duty suspension assists customs officials in 
providing uniform classification of different monitor models in light of the "number and complexity 
of the different technical criteria that are releva nt in the tariff classification of LCD monitors".385 The 
European Communities argues further that the application of the duty suspension effectively results in 
a zero applicable tariff and removes any breach of Article II of the GATT 1994.386   
7.289  The complainants  do not dispute the legal status of the duty suspension under Council 
Regulation No. 493/2005 or under successor provisions, or its application to the particular products 
described in the measure. The complainants, howev er, argue that the duty suspension is temporary 
and conditional because it has a finite period of va lidity, limited application and may be terminated 
unilaterally.387 For these reasons, they reject the notion th at the duty suspension for certain imported 
display products is "legally sufficient" or adequate  to eliminate inconsistency with Article II of the 
GATT 1994. They also observe that the suspensi on does not cover all products covered by the 
concessions at issue, but only those that match criteria up to a particular screen size.388   
(ii) Consideration by the Panel 
7.290  In this section, the Panel  will address the legal effect of th e duty suspension in the context of 
the EC legal order.  In a later section, we will discuss whether the duty suspension removes any 
breach of Article II of the GATT 1994. 
7.291  In our view, it is clear from Article 1 of C ouncil Regulation No. 179/2009 that the sole legal 
effect of the measure is to suspend the applicati on of 14 per cent duties, for the period 1 January 2008 
through 31 December 2010, for monitors falling with in the terms described within the text of the 
regulation. In particular we e xplained above that, under CN code 8528 59 10, duties are to be 
suspended for: 
"black and white or other monochrome monitors, using liquid crystal display 
technology, equipped with either digital vi sual interface (DVI) or a video graphics 
array (VGA) connector or both with a diagonal measurement of the screen not 
exceeding 77,50 cm (i.e. 30,5 inches), with an  aspect ratio of 1:1, 4:3, 5:4 or 16:10, 
with a pixel resolution exceeding 1,92 me ga pixels, and with a dot pitch not 
exceeding 0,3 mm".   
7.292  Further, under CN code 8528 59 90, duties are to be suspended for:  
                                                      
384 European Communities' first written submission, para. 94. 
385 European Communities' response to Panel question No. 23. 
386 European Communities' first written submission, para. 63. 
387 United States' first written submission, paras.  124 and 142; United States' second written 
submission, para. 77; Japan's first written submission, para . 230; Japan's first oral statement, para. 45; Japan's 
second written submission, para. 141; Chinese Taipei's fi rst written submission, paras. 183, 353-354; Chinese 
Taipei's first oral statement, para. 15; Chinese Taipei's  second written submission, para. 212.  The complainants 
contend that the duty suspension has been extended once until 31 December  2006, under Council Regulation 
No. 493/2005, and later until 31 Decem ber 2008 by Council Regulation No. 301 /2007, and is currently set to 
expire on 31 December 2010 under Council Regulation No. 179/2009. 
388 United States' first written submission, para. 124; United States' second written submission, paras. 
78, 79; Chinese Taipei's second written submission, para. 213. WT/DS375/R 
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  "colour monitors, using liquid crystal display technology, with a diagonal 
measurement of the screen not exceeding 55,9 cm (i.e. 22 inches), with an aspect ratio of 1:1, 4:3, 5:4 or 16:10". 
7.293  We note that duties are thus suspended on certain  LCD colour monitors with aspect ratios of 
1:1, 4:3, 5:4 or 16:10 and a diagonal screen measurement of up to 22 inches; and certain LCD black and white or other monochrome monitors with aspect ratios of 1:1, 4:3, 5:4 or 16:10, with a pixel 
resolution exceeding 1,92 mega pixels, with a dot pitch not exceeding 0,3 mm, and with a diagonal 
screen measurement of up to 30,5 inches.  Accordingl y, duties are not suspended on all LCD colour or 
black and white or other monochrome monitors cl assifiable under either CN code 8528 59 10 or 
8528 59 90. 
7.294  Hence, not all monitors presently classifiable under CN code 8528 59 10 or 8528 59 90 and 
capable of reproducing video images from automati c data-processing systems and sources other than 
automatic data-processing systems, are eligible fo r duty suspension under Council Regulation No. 
179/2009. This is, for example, the case for either LCD colour monitors, or black and white or other 
monochrome monitors, exceeding respectively 22 and 30.5 inches in diagonal measurements, respectively, even if they meet all other require ments set forth in Article 1 of that regulation. 
7.295  In addition, we note that the measures only specified that duties are suspended until 31 
December 2010. 
(e) The application of a 14 per cent customs duty on imports of certain flat panel display devices 
7.296  In addition to the above measures at issue, in  their joint Panel request, the complainants 
specified that the measure at i ssue includes "the actual application by customs authorities of EC 
member States of a 14 per cent customs duty on imports of certain flat panel displays".
389  In response 
to a question from the Panel, the complainants indica ted that they were not challenging the application 
of any EC measures.390  Accordingly, the Panel will not consider particular applications by EC 
member State customs officials, or reach findi ngs with respect to particular applications. 
(f) Conclusions 
7.297  In our analysis of the measures above, we c oncluded that tariff item number 8528 41 00 and 
8528 51 00 implement the European Communities' ob ligations with respect to tariff item number 
8471 60 90 in the EC Schedule . Further we conclude that, under CNEN 2008/C 133/01, monitors that 
are capable of receiving signals from sources other th an an automatic data-processing machine, or are 
fitted with DVI, HDMI or similar connectors are automatically excluded from classification under the 
duty-free CN code 8528 51 00. We concluded that Commission Regulation Nos. 634/2005 and 
2171/2005, similarly have the effect of excluding fr om duty-free treatment under CN code 8528 51 00 
LCD certain colour monitors that are capable of displaying signals from sources other than an automatic data-processing machine. Finally, we concluded that Council Regulation No. 179/2009 
suspends the application of duties under CN code  8528 59 90 on certain LCD colour and black and 
white or other monochrome monitors that meet the technical criteria set forth in the regulation. The 
duty suspension applies until 31 December 2010. 
                                                     
 
389 Joint Panel request, WT/DS375/8, 376/8, DS377/6, fn. 5. 
390 Complainants' responses to Panel question No. 119.  WT/DS375/R 
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  3. The complainants' further identification of the products at issue 
7.298  We found in paragraph 7.197 above that the comp lainants sufficiently identified the products 
at issue in their joint Panel request in order for us to  proceed with the dispute.  In particular, we noted 
that the measures at issue describe the products sufficiently in terms of two criteria, i.e., (i) those 
capable of reproducing video images from a source other than an automatic data-processing machine, 
and (ii) those with certain attributes, such as, for example, a built in DVI interface.   
7.299  In their first submissions, the complainants discussed  the products at issue in additional detail.  
In the European Communities' view, the Panel shoul d limit its analysis to those products specifically 
discussed by the complainants and to the particular products listed in the identified measures at issue.  
7.300  The Panel will now consider the implications of the complainants' identification of the 
products and particular measures at issue on our assess ment of the concessions in the EC Schedule at 
issue.   
(a) Arguments of the parties 
7.301  The United States submits that a "flat panel display device" is "a type of monitor that is thin 
and typically uses less energy than devices using conventional cathode ray tu be (CRT) technology". 
In its view, these devices may rely on a "variety of technologies", including liquid crystal display (LCD) or plasma technology.
391 The United States submits that computer displays at the outset were 
primarily based on analogue CRT technology, requi ring that a digital signal generated by an 
automatic data-processing machine be converted to analogue before being received by the display.392 
Today, it contends that "virtually all computer monitors marketed and sold" use LCD technology. These displays are capable of receiving and pro cessing digital signals without analogue conversion.
393 
The United States contends that flat panel disp lay devices may connect to an automatic data-
processing machine using "various technologies" that  accept digital signals, including, for instance the 
Digital Visual Interface (DVI) connector.394 
                                                      
391 United States' first written submission, para. 50. 
392 The United States submits that digital-to-analogue conversion was handled by a Video Graphics 
Array (VGA) connector, also referred to as an "RGB co nnector", "D-sub 15 connector", or "mini-sub D15" 
connector.  United States' first written submission, para. 51, fn. 64. 
393 The United States submits that development of LCD technology used in computer displays began in 
the early 1970s, began to be commerci alized in the 1980s, and were "an increasingly important part of the 
market during the mid-1990s".  United States' first written submission, para. 52. 
394 The United States submits that the DVI, which it describes as a connector that typically consists of 
three rows of pins arrayed on a plug with a screw on either side, has become the industry standard for connecting a computer to a flat panel display device (Un ited States' first written submission, paras. 53-54). The 
complainants jointly submit that the DVI interface was developed in 1998 by the Digital Display Working 
Group (DDWG) industry group, which they describe as an "open industry group" comprising leading computer manufacturers such as Intel, Compaq, Fujitsu, He wlett Packard, IBM, NEC and Silicon Image.  The 
complainants refer to a statement by  the DDWG that the DVI standard "provides a high-speed digital connection 
for visual data types that is display technology independent … is primarily focused at providing a connection between a computer and its display device … and meets the needs of all segments of the PC industry 
(workstation, desktop, laptop, etc) and will enable th ese different segments to unite around one monitor 
interface standard" See Digital Displa y Working Group, Digital Visual Interface (DVI) Revision 1.0, p. 5 
(March 30, 1999) ("DDWG Paper") (Exhibit US-35).  Se e generally: United States' first written submission, 
para. 53; Chinese Taipei's first written submission, para. 13. WT/DS375/R 
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  7.302  Japan  submits that this dispute concerns "flat panel display devices" including "the [LCD] 
type commonly referred to, in numerous EC  and other documents, as 'LCD monitors'".
395  While 
stating that it would "focus[] on LCD monitors with  a 'digital visual interface' or DVI", Japan submits 
that the scope of the dispute covers "flat pane l display devices 'for' [automatic data-processing] 
machines".396  Japan submits that LCD monitors with DVI are the most common type of flat panel 
display device.397  Japan further submits a list of specific products that it considers illustrative of the 
types of LCD monitors that are subject to duties.398 
7.303  Chinese Taipei  submits that "flat panel display devices" are devices capable of receiving 
signals from automatic data-processing machines and ot her sources that are lighter and much thinner 
than traditional displays due to their use of technologies other than CRT, such as LCD, Electro 
Luminescence, Plasma, Vacuum-Fluorescence or Organic Light Emitting Diode (OLED) technologies. Chinese Taipei contends that flat pa nel display devices can have "varying sizes" and 
"various technical specifications", and may rely on a "variety of connectors", including DVI. In its 
view, displays with DVI technologies are "most affect ed" by the measures at issue in this dispute. 
Chinese Taipei submits that the DVI interface is specifically designed for automatic data-processing 
machines.
399  Chinese Taipei submits that flat panel disp lay devices are "generally  used in connection 
with [automatic data-processing] machines or as part  of computer networks in office, industrial or 
home environments."400 
7.304  The European Communities  argues that the complainants' descriptions of the products in 
their first submissions assume that the product at issue is synonymous with "computer monitors" or 
"LCD monitors with a DVI", or otherwise displa y devices capable of receiving signals from automatic 
data-processing machines only, or from both automatic data-processing machines and other sources.
401  It notes that the United States describes monitors and display technology generally, using 
terms such as "LCD monitors", "LCD flat panel display devices" "LCD monitors with a DVI", "LCD 
monitors 'for' a computer", "LCD monitors that are 'for' ITA products", "LCD computer monitor, 
whether or not equipped with DVI and whether or  not solely capable of being used with a 
computer".402  The European Communities contends that Japan has limited its description to displays 
using LCD technology and incorporating a DVI conn ector, which may be used with automatic data-
processing machines only, or with both automatic data-processing machines and  other sources.403  
Finally, the European Communities argues that Chine se Taipei has limited its legal arguments to flat 
panel display devices using LCD technology that  can be used with automatic data-processing 
machines only, or with automatic da ta-processing machines and other apparatus.404  Accordingly, the 
                                                      
395 Japan's first written submission, para. 216. 
396 Japan's first written submission, para. 216. 
397 Japan otherwise states that it "supports the argume nts of" the United States and Chinese Taipei that 
the measures at issue limit duty-fr ee coverage under HS1996 heading to devices that can display information 
only from an automatic data-processing machine (Japan's first written submission, para. 216). 
398 Exhibit JPN-15.  Japan argues that this list is illustrative only, and not comprehensive (Japan's first 
written submission, para. 218). 
399 Chinese Taipei's first written submission, para s. 11-12 (citing the DDWG website, available at 
http://www.ddwg.org and http://www.ddwg..org/faqs.asp). 
400 Chinese Taipei states that flat panel display devices  are also used in Points of Information (PoI) or 
Points of Sale (PoS) (Chinese Taipei's first written submission, para. 14). 
401 European Communities' first written submission, para. 42. 
402 European Communities' first written submission, pa ra. 41 (referring to United States' first written 
submission, paras. 56, 58, 59, 61, 132, 135 and 137.) 
403 European Communities' first written submission, paras. 39-40.   
404 European Communities' first written submission, paras. 36-37.    WT/DS375/R 
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  European Communities considers the complainants' descriptions inadequate to establish a prima facie  
case.   
7.305  To the extent that the Panel considers that th e complainants have identified "some" of the 
displays with sufficient clarity, the European Communities argues that the Panel should limit its 
findings to the LCD monitors described in ite m 4 in the annex to Commission Regulation No. 
634/2005, and items 1, 2, 3 and 4 in Commission Regulation 2171/2005.
405  It argues that the five 
displays in these measures are capable of being used with both video monitors and monitors of automatic data-processing machines.  However, th e European Communities additionally requests the 
Panel to make findings with respect to LCD monitors that can accept a signal only from an automatic 
data-processing machine, since, it argues, the compla inants have specified mo nitors that can accept a 
signal only from automatic data-processing machines.  Moreover, because the complainants did not 
refer to HDMI technology at all in their first writte n submissions, but only mentioned this category of 
product in response to a question from the Panel, the European Communities argues that displays 
utilizing HDMI technology should not be considered within the scope of the claims before the 
Panel.
406   
7.306  In response, the United States  submits that it has used term s to describe each product, and 
provided definitions as well as technical background information sufficient to identify the products.407  
In particular, the United States submits that it adequa tely set forth its claim by identifying at least two 
types of flat panel display devices that are affected by the measures at issue: "flat panel display 
devices with a DVI interface (whether or not the product can be used with devices other than an 
automatic data-processing machine)"; and "flat panel di splay devices that are not 'solely' for use with 
an ADP machine, but which are nonetheless 'for' an ADP machine".408  The United States additionally 
argues that displays that have an HDMI interface fall within its claims because these products are 
"capable of connecting to a device other than a computer (whether through an HDMI interface or 
another technology)".409   
7.307  Japan  rejects the view that it has limited the scope of its claim by referring to LCD 
technologies, or to the presence of DVI, or that it has limited its claim based on whether a display can 
also operate with some other non-ITA device, such as a television receiver. In its view, reference to 
the DVI connector is illustrative, as oppo sed to delimiting the products at issue.410 In light of its claim 
regarding displays "for" automatic data-processing m achines, Japan considers that a display with an 
HDMI interface would fall within the scope of its claim as long as the device is capable of receiving 
signals from and operating with an automatic data-processing machine or other ITA product. 
Moreover, Japan submits that the HDMI interface was developed for audio-visual appliances on the 
basis of the DVI standard.411   
7.308  Chinese Taipei  similarly rejects that its claims are limited to LCD monitors with DVI 
connectors.412  While submitting that the display types most affected by the EC measures are LCD 
displays with a DVI connector, Chinese Taipei c onsiders that displays with HDMI interfaces fall 
                                                      
405 European Communities' first written submission, paras. 47-48. 
406 European Communities' second written submission, para. 39. 
407 United States' second written submission, para . 16 (referring to United States' first written 
submission, paras. 42, 50-54, 68-71) (Exhibits US-22 to 25; US-31 to 35, US-53 to 56).   
408 United States' response to Panel question No. 48; United States' second oral statement, para. 27. 
409 United States' response to Panel question No. 49. 
410 Japan's second written submission, para. 132. 
411 Japan's response to Panel question No. 49. 
412 Chinese Taipei's second written submission, para. 98. WT/DS375/R 
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  under its claim.
413  Chinese Taipei further submits that it h as clearly indicated the scope of the product 
covers flat panel display devices that can only re produce and receive signals from an automatic data-
processing machine.414  Chinese Taipei argues that it included both of these products because certain 
devices that can only receive signals from an ADP m achine have nevertheless been subject to duties 
by the European Communities merely du e to the presence of certain connectors.415   
(b) Consideration by the Panel 
7.309  We recall from above that the task before us in  respect of the complainants' claims based on 
Article II of the GATT 1994, is to determine whet her the measures at issue result in duties being 
levied on certain products, in excess of the tari ff treatment provided for those products under the 
EC Schedule.  In doing so, we explained our unde rstanding of the complainants' claim to be that 
aspects of the measures operate automatically to exclude from particular duty-free tariff headings all 
products with a certain characteristic irrespectiv e of the other objective characteristics they may 
possess.  Thus, we concluded that, if we were to de termine that some products fall within the scope of 
duty-free concessions in the EC Schedule, then  if the challenged measures provided for the 
application of duties to those products covered by th e concession, this treatment would be sufficient to 
find a breach of Article II.  
7.310  Accordingly, we disagree with the European Communities that th e complainants were obliged 
to identify the particular models or precise products at issue in order to succ eed at their claim.  We 
consider that the measures within our terms of re ference determine the products that are within our 
terms of reference.  The Panel will consider below these and other aspects of the measures in its 
assessment in determining whether the complain ants have met their burden to demonstrate 
inconsistency of the measures at issue under Article II of the GATT 1994.   
7.311  As argued above by the parties, the European  Communities notes that the complainants have 
referred to aspects of the measures at issue which describe particular products or attributes of 
products, in particular, items in the Annex to Commission Regulation Nos. 634/2005 and 2171/2005.  
In addition, we note that the complainants have re ferred to various products or categories of products 
in framing their arguments to the Panel.   
7.312  The United States, for instance, describes a "fla t panel display device" as a type of monitor 
that is thinner and typically uses less energy than  devices using CRT technology.  It contends that 
these devices rely on a "variety of technologies", "including liquid crystal or plasma".416  The United 
States emphasizes that these devices are capable of connecting to au tomatic data-processing machines 
using "various connectors", including notably a DVI interface.417   
7.313  Japan describes "LCD monitors", in particul ar those with DVI interfaces, as the "most 
common type" of flat panel display devices that are capable of displaying information from an automatic data-processing machine, regardless of th eir ability to connect to other units.  Japan 
additionally indicates that other products ma y fall within the scope of this dispute.
418 
                                                      
413 Chinese Taipei's response to Panel question No. 49. 
414 Chinese Taipei's first written submission, para. 234. 
415 United States' first written submission, para. 130 (Exhibit US-78); Chinese Taipei's response to 
Panel question No. 48. 
416 United States first written submission, para. 50. 
417 United States first written submission, para. 53. 
418 Japan's first written submission, paras. 216 and 218.  WT/DS375/R 
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  7.314  Chinese Taipei submits that "flat panel display devices" are those devices "capable of 
receiving signals from automatic data-processing machines only or from both ADP machines and other sources". Chinese Taipei submits further that these devices rely on "various different 
technologies" such as LCD, Electro Luminescence , Plasma, Vacuum-Fluorescence or OLED, have 
"varying" sizes and "various" specifications, and inco rporate "a variety of connectors", including DVI 
as well as "VGA connectors". It considers that "L CD displays with a DVI connector" are "most 
affected" by the measures at issue.
419 
7.315  On the basis of the Panel request, our assessm ent of the measures, and the complainants' 
views on the products at issue set forth in their subm issions, we understand it is not in dispute that the 
claims relate to devices using non-CRT technology.   
7.316  With regard to specific display technology, some of the aspects of the measures challenged, in 
particular Commission Regulation Nos. 634/2005 an d 2171/2005 identified above , relate expressly to 
LCD technology.  However, the complainants have  additionally argued that the measures apply to 
display devices based on other technologies. The relevant provisions of CNEN 2008/C 133/01 are 
expressly applicable to technologies other than mere ly LCD. In addition, the joint Panel request 
identifies both display devices using LCD technology as well as "flat panel display devices" generally.  While the complainants have for the most part focused their arguments on LCD devices, 
the Panel does not consider that the particular technol ogy used by a flat panel display is dispositive to 
assessing whether the complainants have, or have not,  established a prima facie case of violation.  The 
central issue, in our view, is the permissibility of  excluding from duty-free treatment flat panel display 
devices with certain characteristics that are unrelat ed to the particular display technology used. 
Therefore, the Panel considers that the aspects of the measures at issue challenged are broad enough 
to encompass flat panel display devices with certain characteristics that are unrelated to the particular 
display technology used, irrespective of  the precise display technology used. 
7.317  In light of the complainants' Panel request, and their arguments discussed above, the Panel 
considers that the Panel's inquiry is limited to th e following aspects of the measures: (i) the exclusion 
of flat panel display devices from duty-free treatment on the basis that they are able to receive and 
display signals from sources other than automatic data-processing machines, in addition to being able 
to receive and display signals from an automatic da ta-processing machine and (ii) the exclusion of flat 
panel display devices from duty-free treatment on the basis of the presence of a DVI connector. As 
recognized by the European Communities a nd complainants, the Appellate Body in 
EC - Chicken Cuts found: 
"the identification of the products at i ssue must flow from the specific measure 
identified in the panel request. [...] [It] is the measure at issue that generally will 
define the product at issue".
420 
7.318  In our view, it flows from this that the products at issue are: (i) flat panel display devices that 
are capable of receiving and reproducing video images both from an automatic data-processing 
machine and from a source other than an automatic  data-processing machine, and (ii) flat panel 
display devices that have a DVI interface, whether or not they are capable of receiving signals from another source. 
7.319  With regard to display devices incorporating an HDMI connector, we consider that these 
products also fall within our terms of reference.  While the complainants did not refer to HDMI 
                                                     
 
419 Chinese Taipei's first written submission, paras. 11, 12 and 14. 
420 Appellate Body Report on EC – Chicken Cuts , para. 165 (emphasis in original). WT/DS375/R 
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  technology in their respective sections identifyi ng the "products at issue", we note that the 
complainants referred to "flat panel displays with certain attributes, such as  DVI" within their joint 
Panel request.
421 In addition, we note that the relevant  text of the identified CNEN 2008/C 133/01 
states that "Monitors of this subheading cannot ... be fitted with interfaces such as DVI-D, DVI-I and 
High-Definition Multi-media Interface (HDMI) ev en if these interfaces do not support high-
bandwidth digital content protection (HDCP) encryption".422  Finally, even if we were to consider that 
products with HDMI were not covered, to the extent that HDMI are used to connect a flat panel display device to sources other than an automatic data-processing machine, we consider that flat panel 
display devices with HDMI would be included in the scope of the complainants' claim relating to this 
aspect of the measure. 
7.320  Accordingly, we will consider below whether the products as specified by the complainants 
and that flow from the criteria identified by the complainants, fall within the scope of the EC 
concessions at issue. 
4. Whether the European Communities' tariff treatm ent of particular flat panel displays is 
consistent with its obligations under Article II of the GATT 1994 
7.321  The European Communities made duty-free conc essions on certain information technology 
products as part of its implementation of the ITA,  which are reflected in the EC Schedule. The 
complainants' claim with respect to the tariff treatme nt of certain flat panel display devices relates to 
two concessions in the EC Schedule: (i) the conc ession embodied in the narrative description "Flat 
panel display devices (including LCD, Electro Luminescence, Plasma, Vacuum-Fluorescence and 
other technologies) for products falling within this ag reement, and parts thereof", in the Annex to the 
EC Schedule
423; and (ii), the concession embodied in EC Schedule under tariff item number 
8471 60 90 listed therein. The complainants argue  that by not affording duty-free treatment to 
products which are within the scope of these tari ff concessions, the European Communities is acting 
inconsistently with its obligati ons under Article II of the GATT 1994, which requires that Members 
not treat products coming from another Member le ss favourably than in their schedules or charge 
duties in excess of the bound rates set forth in the Schedule.    
7.322  As noted above, we will start by determining the scope of the FPDs concession in the Annex 
to the EC Schedule.  We will then turn to dete rmining the scope of tariff item number 8471 60 90.  
Having determined the scope of the relevant obligati ons in the EC Schedule, we will then consider 
whether the effect of the measures at issue noted abov e is such that products that fall within the scope 
of the European Communities' obligatio ns do not receive duty-free treatment. 
(a) The ordinary meaning of the relevant c oncession: The EC headnote and narrative product 
description for FPDs in the Annex to the EC Schedule 
7.323  The complainants  submit that FPDs are covered by the duty-free concession in the narrative 
description for FPDs in the Annex to the EC Schedul e ("Flat panel display devices (including LCD, 
Electro Luminescence, Plasma, Vacuum-Fluorescence and other technologies) for products falling within this agreement, and parts thereof").
424  They argue that the ordinary meaning of the terms of the 
                                                      
421 Joint Panel request, WT/DS375/8, 376/8, DS377/6, p. 3 (emphasis added). 
422 Exhibits US-49; JPN-18; TPKM-23 (emphasis added). 
423 Regarding the complainants' views on the location of the concession, see paras. 7.219 - 7.226 above. 
424 The following third parties also take this view:  see,  for instance, Australia's oral statement, paras. 8, 
13; China's executive summary of its third party submission, para. 3; Costa Rica's third party submission, para. 
5, 22-23; Hong Kong (China)'s third party statement, paras. 4-5; Korea's third party submissions, paras. 10-11,  WT/DS375/R 
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  FPDs narrative description, when read in the cont ext of the EC headnote, requires the European 
Communities to extend duty-free coverage to all pr oducts described by the narrative description for 
FPDs, wherever those products are classified.
425  In their view, the tariff item numbers listed beside 
the narrative descriptions cannot limit the concession's sc ope to only those products classifiable in the 
listed codes.426 The United States even describes the EC  headnote as a "separate" commitment, 
additional  to the commitments associated with in dividual tariff lines in the EC Schedule.427  Within 
the terms of this narrative description,  they indicate that the term "for" is key to the ordinary meaning 
analysis under the Vienna Convention. 
7.324  The European Communities  accepts that the EC headnote is part of its Schedule428, but 
rejects the complainants' allegations on the ordi nary meaning of the terms in the EC headnote429 as 
well as the FPDs narrative description.430  The European Communities argues that the fourteen tariff 
item numbers listed next to the FPDs narrative description determine the scope of the FPDs commitment made pursuant to Attachment B and therefore should not be "read out from the EC's 
Schedule".
431 
7.325  As explained above432, the Annex to the EC Schedule contains (i) the EC headnote, and (ii) a 
table listing 55 narrative descriptions (including the FP Ds narrative description) in a left-hand column 
with one or more specific tariff item numbers liste d next to each narrative description in the table's 
right-hand column (including 14 codes associ ated with the FPDs narrative description). 
7.326  We recall that the EC headnote provides as follows: 
                                                                                                                                                                     
22; Philippines' third party submission, para. 3; Philippines' third party statement, pp. 5-6; Singapore's oral 
statement, paras. 9 and 48. 
425 Complainants' response to panel question No. 100.  The United States and Chinese Taipei submit 
that the ITA itself does not provide for the inclusion of a headnote; however, they argue that participants agreed, 
during the implementation phase, to incorporate a headnote into their Schedules as part of the process of implementing their Attachment B conce ssions.  They argue that such a h eadnote was to include the language 
"wherever they are classified in th e HS" (United States' and Chinese Taip ei's responses to panel question No. 
100).   Japan argues that the ITA does not require the incorporation of a headnote when inscribing duty-free concessions on products described in Attachment B into ITA participants' Schedules.  It argues that participants 
had discretion concerning how to reflect this commitment into their own Schedules subject to review and 
approval by the Members.   While arguing that no requirement exists to incorporate a particular headnote, Japan 
submits it included a note that is "almost the same" as the EC headnote (Japan's response to panel question 
No. 100). 
426 The following third parties also take this view : see, for instance, Australia's third party oral 
statement, para. 8; Philippines third party oral statement,  p. 8; and Singapore's third party submission, para. 22. 
427 United States' comments to the European Communities' response to Panel questions Nos. 100 and 
103 and questions 1-3 of the United States. 
428 European Communities' first written submission, para. 18. 
429 European Communities' first oral statement, para. 20. 
430 European Communities' first written submission, paras. 104-118. 
431 European Communities' first written submission para s. 50-61; European Communities' response to 
Panel question No. 10; European Communities' second written submission, paras. 13 and 18.  The European Communities argues that the CN codes that appear next to  the product description for FPDs "appear twice" in its 
Schedule, as those codes listed next to the narrative descri ptions in the Annex to the EC Schedule are also listed 
elsewhere in the EC Schedule and carry a zero duty.  Thus, the European Communities considers that the CN 
codes in the Annex to the EC Schedule "exhaust" the headnote, in particular the language "wherever the product 
is classified" that appears therein.  Accordingly, the European Communities does not consider the headnote adds 
to its commitments (see, for instance, European Comm unities' first oral statement, para. 19; European 
Communities' response to questions from the United States during second meeting, para. 1). 
432 See paragraphs 7.24 - 7.25 above. WT/DS375/R 
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  "With respect to any product described in or for Attachment B to the Annex to the 
Ministerial Declaration on Trade in Information Technology Products (WT/MIN(96)/16), to the extent not specifically provided for in this Schedule, the 
customs duties on such product, as well as any other duties and charges of any kind 
(within the meaning of Article II:1(b) of the General Agreement on Tariffs and Trade 
1994) shall be bound and eliminated as set fort h in paragraph 2(a) of the Annex to the 
Declaration, wherever the product is classified".
433 
7.327  The text of the FPDs narrative description, th at appears below the EC headnote, provides as 
follows: 
"Flat panel display devices (including LCD, Electro Luminescence, Plasma, Vacuum-
Fluorescence and other technologies) for produc ts falling within this agreement, and 
parts thereof".434 
7.328  The following 14 tariff item numbers are associ ated with the FPDs narrative description:  
"84716090, 84733010, 84733090, 85312030, 85312051, 85312059, 85312080, 
85318030, 85319010, 85319030, 90138011, 90138019, 90138030, 90139010".435   
7.329  The complainants have identified both the FPD s narrative description and the EC headnote in 
discussing the concession that they consider to ari se under the Annex to the EC Schedule.  Because 
the EC headnote appears at the outset of the Annex to the EC Schedule and thus precedes the 
narrative descriptions, we consider it appropriate to begin our analysis with the EC headnote before 
turning to the narrative description.  Pursuant to  Article 31 of the Vienna Convention, we will 
consider the ordinary meaning of the EC headnote. 
(i) The meaning of the terms of the EC headnote 
Arguments of the parties  
7.330  The complainants' arguments with respect to the EC headnote focus on the language 
"wherever the product is classified" and "to the extent  not specifically provided for in this Schedule".  
There arguments are reflected below: 
wherever the product is classified 
7.331  The complainants  argue that the phrase "wherever the product is classified" means that the 
product must be accorded duty-free treatment no matter  where the Member chooses to classify it in its 
customs tariff under national law.436 The United States  considers that the function of the EC headnote 
is to "affirm" the duty-free treatment to be accorded  to products falling within  the general description 
of products in Attachment B.437  It argues that a Member "is not excused" from providing duty-free 
treatment to an Attachment B product "merely be cause it is classifiable in a dutiable heading".438 
Japan  argues that the phrase "wherever the product is classified" indicates that the narrative product 
descriptions "take precedence" over the HS headings used by the ITA partic ipants to classify these 
                                                      
433 Exhibit US-7. 
434 Exhibit US-7. 
435 Exhibit US-7. 
436 Complainants' response to Panel question No. 10(b). 
437 United States' first written submission, para. 8. 
438 United States' response to Panel question No. 10(b).  WT/DS375/R 
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  products in the past, and thus determine the scope of the tariff concessions on Attachment B 
products.
439  If tariff item numbers were intended to define the scope of the concession, it argues, it 
would have been unnecessary to include the EC headnote that explicitly provides for duty-free 
treatment wherever the product is classified.440 Chinese Taipei considers that the meaning of the 
words "wherever the product is classified" is "both crucial and self-explanatory" as it means that a 
listed product is entitled to duty-free treatment regardless of the specific tariff line under which a particular product falls in the EC Schedule.
441   
7.332  The European Communities  argues that the phrase "wherever the product is classified" was 
included in the EC headnote because the product definitions in Attachment B "could cut across" 
multiple different tariff lines.442 
to the extent not specifically provided for in this Schedule 
7.333  The United States  argues that the phrase "to the extent not specifically provided for in this 
Schedule" acknowledges that produc ts may be covered by a concession associated with a particular 
tariff line or by the Attachment B description, or both.   Even if the product is classifiable in a dutiable 
heading, the United States argues, the Members mu st nonetheless accord dut y-free treatment to the 
product if it meets the Attachment B description.443  Japan  argues that the phrase when read with the 
phrase "shall be bound and eliminated" means th at Attachment B concessions grant a duty-free 
treatment to certain products that are not given duty-free treatment by any other specific 
concessions.444  Chinese Taipei  argues that the phrase relates to the term "product" and clarifies that 
the Attachment B concessions are additional to an y concessions already resulting from Attachment 
A.445 
7.334  The European Communities  argues that the phrase "to the extent not specifically provided 
for in this Schedule" refers to all product definiti ons in the entire EC Schedule, including those in the 
tariff headings that follow the HS nomenclature, a nd "those that do not follow the HS nomenclature 
but rather copy into the Schedule the product de finitions contained in Attachment B to the ITA.446 
Consideration by the Panel  
7.335  In terms of its structure, the EC headnote can  be subdivided into five main elements or 
grammatical phrases:  
(a) "With respect to any product described in or for Attachment B to the Annex to the 
Ministerial Declaration on Trade in Information Technology Products 
(WT/MIN(96)/16),"  
(b) "to the extent not specifically provided for in this Schedule" 
                                                      
439 Japan's response to Panel question No. 10(b). 
440 Japan's second written submission, para. 221. 
441 Chinese Taipei's response to Panel question No. 7. 
442 European Communities' response to Panel question No. 10(b). 
443 United States' response to Panel question No. 10(b). 
444 Japan's response to Panel question No. 10(b). 
445 Chinese Taipei's response to Panel question No. 10(b). 
446 European Communities' response to Panel question No. 10(b). WT/DS375/R 
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  (c) "the customs duties on such product, as we ll as any other duties and charges of any 
kind (within the meaning of Article II:1(b)  of the General Agreement on Tariffs and 
Trade 1994)" 
(d) "shall be bound and eliminated as set forth in  paragraph 2(a) of the Annex to the 
Declaration" 
(e) "wherever the product is classified". 
7.336   We first analyse these grammatical phrases on their own and thereafter consider the 
implications of these elements taken together.   
7.337  The opening segment of the EC headnote refers to any product that is either described "in"  
Attachment B, or  otherwise, is "for" Attachment B. We recall that certain HS headings listed in 
Attachment A, Section 2  are identified by the comment " For Attachment B"
447 (emphasis added). As 
we will discuss below, the EC Schedule reprodu ces these product descriptions both from (or "in") 
Attachment B and from Attachment A, Section 2 di rectly below the EC headnote, in accordance with 
the modalities set out in the ITA. We al so concluded above that, for our purposes448, there are no 
discrepancies between the FPDs narrative descri ption in Attachment B and the FPDs narrative 
description in the Annex to the EC  Schedule.449 
7.338  The segment of the EC headnote "to the extent not specifically provided for in this Schedule", 
introduces two main elements.  We consider the reference to "in this Schedule" (emphasis added), can 
only refer to the EC Schedule, because the EC  headnote appears within the EC Schedule. 
Furthermore, there is no reference to any particular  section of the EC Schedule. With regard to the 
terms "to the extent not specifically provided for", the adverb "specifically" is defined as, "(a) in 
respect of specific or distinctive qualities; (b) peculiarly; (c) in a clearly defined manner, definitely, 
precisely". The adjective "specific" is defined as, inter alia , "A. adjective  1 Having a special 
determining quality. (...)  2 Specially or peculiarly pe rtaining to a particular thing or person, or a class 
of these; peculiar ( to)". The term "provide" as a verb is defined as, inter alia , "3 verb trans.  Stipulate 
in a will, statute, etc., that."450   
7.339  In view of the terms "specifically" and "provi ded for", and the reference to "this Schedule", 
the Panel considers that this segment addresses th e provision of or inclusion of a specific element 
within the EC Schedule as a whole.  In the Panel' s view, the phrase "to the extent not specifically 
provided for" relates to the requirement to el iminate customs duties and charges on the products 
subject to the EC headnote in accord ance with the rate reductions specifi ed in the ITA.  In the Panel's 
view the phrase "to the extent not specifically prov ided for in this Schedule" cannot have been 
intended to simply relate back to the word "produc t" that precedes it.  Such an interpretation would 
indicate that the requirement to provide duty free tr eatment to products subject to the headnote would 
apply only to the extent that a product is not already "provided for" elsewhere in a Member's WTO 
                                                      
447 ITA (Exhibits US-1; TPKM-1). 
448 See para. 7.226 above. 
449 We recognized above that the product description for FPDs in the Annex to the EC Schedule is 
clearly not identical with that appearing in Attachme nt B, noting in particular the addition of the words 
"devices" and "vacuum-fluorescence" in the Annex.  Nevertheless, we concluded that the description in the EC Schedule clearly has its origins in Attachment B, base d on similarities between the two descriptions, and we 
noted that the parties do not disagree that the text in Attachment B was intended to be modified to reflect what is 
now reproduced in the Annex to the EC Schedule.  See paras. 7.222-7.226 above. 
450 See the  Shorter Oxford Dictionary (2003), p. 2946 for "specifically" and "specific", and p. 2382 for 
"provide".  WT/DS375/R 
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  schedule.  Most, if not all, products described in or for Attachment B are classifiable somewhere 
within the EC's Schedule. If the headnote were to  apply only to products that were not already 
"provided for" in the EC Schedule, the duty free treatment provided for in the Annex to the EC 
Schedule would have extremely limited, if any, appl ication. Such a limited interpretation would defeat 
the clear objective to provide duty-free treatment to products described in or for Attachment B. We 
thus consider that the phrase "to the extent not specifically provided for" must relate to the requirement to bind and eliminate customs duties and other charges. In other words, the phrase 
acknowledges that there may be some repetition in terms of product covera ge between the products 
"in or for" Attachment B and the rest of the EC Schedule, including the two other ITA-related 
sections of the EC Schedule.  It also reaffirms th at such products are now subject to new duty-free, 
ITA-related, tariff obligations, notwithsta nding any overlap in product coverage.
451  
7.340  The next segment of the EC headnote – "the customs duties on such product, as well as any 
other duties and charges of any kind (within the mean ing of Article II:1(b) of  the General Agreement 
on Tariffs and Trade 1994)" – expressly refers to "customs duties" or "any other duties and charges of 
any kind" that are "within the meaning of Article II:1(b) of the [GATT 1994]".  In our view, these terms are self explanatory.  Moreover, we note that  the meaning of these terms is not in dispute.  
Thus, we do not address this asp ect in further detail here. 
7.341  The next segment of the EC headnote provides that customs duties and any other duties and 
charges of any kind "shall be bound and eliminated as set forth in paragraph 2(a) of the Annex to the 
Declaration". In combination with the preceding se gment, the obligation to "bind and eliminate" 
duties and charges clearly commits the European Communities to provide duty-free treatment to the 
products under the concession, and this by 1 January  2000 and as provided for in paragraph 2(a) of the 
ITA Annex. The third and fourth segment thus in tegrate in the EC Schedule a key objective of the 
ITA, i.e., to eliminate all duties and charges for Attachment B products, in  the manner and time-frame 
prescribed by paragraph 2(a) of the ITA Annex.  Th e Panel notes that, without this particular segment 
of the EC headnote, there appears to be nothing in the remainder of the EC headnote, nor in the 
product descriptions or the tariff item numbers that fo llow, that on its face, could be interpreted to 
indicate that duty-free treatment must be provided in respect of those products.  One of the key 
functions of the EC headnote is therefore to expr essly provide that duty-free treatment be provided to 
the products covered in this  part of the EC Schedule. 
7.342  The EC headnote concludes with the phr ase "wherever the product is classified".
452  The term 
"wherever" is defined, inter alia , as "II rel. adverb & conjunction . 2 At, in, or to any or every place in 
or to which (...) III 3 Introducing a qualifying dependent clause: in or to whatever place: no matter where. 4 In any case or circumstances in which".
453 The expression "no matter" is defined as "be of no 
                                                      
451 The Panel notes that the phrase "to the extent not specifically provided for in this Schedule" may 
also have been intended to clarify that, where products already received dut y-free treatment in the Schedule of a 
Member, such products would not be subject to the "staging" provisions  of the ITA, whereby customs duties 
where reduced to zero through rate reductions in equal steps from 1997 to 2000.  In this respect, products 
already receiving duty-free treatment under a Schedule, would continue to  receive duty-free treatment during 
this "staging" period.  The Panel notes further that the EC  headnote refers explicitly to paragraph 2(a) of the ITA 
Annex, which contains the "staging" provisions in the ITA. 
452 We note this language is highly similar to language  that appears in two separate locations in the ITA 
Annex.  The chapeau to the ITA Annex provides "Attachment B lists specific products to be covered by an ITA 
wherever they are classified in the HS".  The chap eau immediately preceding Att achment B provides "Positive 
list of specific products to be covered by this agreement wherever they are classified in the HS".  However, in 
this Section of the Reports, we address the plain meaning of the terms. 
453 The Shorter Oxford Dictionary (2003), p. 3622. WT/DS375/R 
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  consequence or importance; (b) colloq. it is of no consequence or importance, never mind."
454 The 
verb "classify" is defined generally as "1 Arrange in classes; assign to a class".455 In terms of the 
structure of the EC headnote, we understand this  concluding phrase is tied to the condition that 
customs duties (and any other duties and charges) sh all be bound and eliminated for products in or for 
Attachment B as provided in paragraph 2(a) of the IT A Annex. Initially, on the basis of the dictionary 
definitions provided above, the plain meaning of the phrase implies that the classification of the 
product is not dispositive, not important, or even not re levant. When read together with the rest of the 
text of the EC headnote that precedes it, the Pane l considers that the language "wherever the product 
is classified" indicates that customs duties should be bound and eliminated on products in Attachment 
B, as well as the products "for" Attachment B456, and that this should be  so no matter where that 
product is classified in the EC Schedule. 
7.343  Our initial analysis of the text of the EC hea dnote suggests that products described in or for 
Attachment B must be granted duty-free treatment irrespective of where those products are classified.  
This interpretation has implications for the m eaning and significance of the tariff item numbers 
appearing alongside the product descriptions in the EC Schedule. In particular, whatever significance 
the tariff item numbers would have, they would not ha ve the effect of controlling or determining the 
scope of coverage arising from the ordinary mean ing of the product descriptions themselves. In other 
words, the plain meaning of the phrase "wherever th e product is classified" is not consistent with a 
view that the tariff item numbers notified by the Eu ropean Communities operate to limit the scope of 
the EC concessions strictly to products that are cl assified or classifiable in the particular tariff item 
numbers listed next to a give n product description in the Annex to the EC Schedule. 
7.344  The European Communities has ar gued that the language "wherever the product is classified" 
is intended to refer to the tariff item numbers in the EC Schedule where zero duties would apply for a 
particular product (as the Member would itself specify in its Schedule in the lead up to 
implementation of its ITA obligations).457 Accordingly, in its view, the tariff item numbers notified 
alongside the product descriptions in its Schedule wo uld effectively "exhaust" the headnote, which is 
to say that the tariff item numbers appearing next  to the product descrip tions indicate where the 
product will be classified by the European Communities.  However, the Panel finds it difficult to agree 
with this interpretation, at least on the basis of the plain meaning of the text of the EC headnote, when 
considered in full.  As the Panel has interprete d above, the phrase "wherever the product is classified" 
refers to the condition that customs duties and othe r duties and charges shall be bound and eliminated 
for products in or for Attachment B. This phrase is  open-ended; it cannot reasonably be read to refer 
only to the list of products and tariff item number s listed in the Annex to the EC Schedule alongside 
the narrative description. While recognizing that the European Communities notified a finite list of 14 
tariff item numbers next to the description for flat  panel display devices in the Annex to the EC 
                                                      
454 The Shorter Oxford Dictionary (2003), p. 1721. 
455 The Shorter Oxford Dictionary (2003), p. 420. 
456 We recall again that certain HS headin gs listed in Attachment A, Section 2  are identified by the 
comment "For Attachment B".  As a result, we understand that descriptions in  Attachment A, Section 2 were 
included in Members' schedules along with those narrativ e descriptions from Attach ment B, in accordance with 
the modalities set out in the ITA (see para. 7.337). 
457 The European Communities argues that ITA partic ipants had a reason for doing so, in particular, 
that it was necessary to do so because products described in Attachment A, Section 2 and Attachment B cut across several HS headings, as the headings existed at the time of the HS1996, and it was not possible to agree 
on a single appropriate headin g to classify the product.  WT/DS375/R 
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  Schedule , there is no basis, on an analysis of the plai n meaning of the language of the EC headnote , to 
conclude that these tariff item numbers "exhaust" the FPDs product descriptions.
458 
7.345  In summary, in the Panel's view, an initial te xtual analysis of the key terms and phrases 
appearing in the EC headnote  strongly supports the conclusion that pr oducts initially described in or 
for Attachment B , which in the case of flat panel displays is the same as that  reproduced in the Annex 
to the EC Schedule, must be granted duty-free treat ment irrespective of where they are classified in 
the EC Schedule. 
7.346  Such a conclusion suggests that the pr oduct descriptions in Attachment B  determine the scope 
of the products for which the European Communitie s is required to extend duty-free treatment, and 
not the tariff item numbers that are listed next to each  of the product descriptions in the Annex to the 
EC Schedule. The alternative interpretation, that  the tariff item numbers define the scope of the 
obligation, would appear to read out the phr ase "wherever the product is classified" from the 
headnote. 
7.347  The Panel stresses that, at this stage of its analysis, these observations regarding the 
interpretation of the EC headnote are preliminary in  nature.  They are based on the plain meaning of 
the text of the EC headnote, which is the starti ng point, but not the end point, for interpreting treaty 
text. 
(ii) The terms of the EC headnote in their context 
7.348  The complainants  have argued that the plain meaning of the terms in the EC headnote is 
"straightforward"459, but that the ITA as context provides further support to interpret the EC 
concession based on the FPDs narrative description.460  T h e  complainants  argue that the ITA 
provides relevant context for interpreting the EC Sc hedule within the meaning of Article 31(2)(b) of 
the Vienna Convention , as an instrument which was made by one  or more parties in connection with 
the conclusion of the treaty.461 In addition, the complainants ha ve discussed the meaning of the EC 
                                                      
458 To the extent the specific eight-digit CN codes listed next to the product description for FPDs were 
to have some function, for instance to inform its interpretation of the ordinary meaning of the terms of the 
narrative product description for FPDs, their function will be considered below at the time of our assessment of 
the ordinary meaning of the FPDs product description. 
459 See, for instance, United States second written submission, para. 94. 
460 United States second written submission, paras. 59 and 94; Japan's second written submission, para. 
18; Chinese Taipei's second written submission, para. 6.  Chinese Taipei argues that the reference in the 
headnote shows that all WTO Members have accepted th e ITA as related to the concessions made in their 
Schedules (Chinese Taipei's second written submission, para. 8). 
461 Complainants' responses to Panel question No. 2; Japan's response to Panel question No. 1. The 
United States argues that the ITA is not the treaty at issue in this dispute; it considers the ITA is an "instrument" 
related to the GATT 1994 (United States' response to Pa nel question No. 1). The United States argues that WTO 
Members acknowledged the relationship between the ITA and the GATT 1994 by formally accepting the 
modifications to the Schedules of those ITA participants who were WTO Members shortly after its conclusion.  
Second, it submits that WTO Members acknowledged the ITA during the Mini sterial Declaration in Singapore 
by taking note of and welcoming the agreement (United States' response to Panel question No. 2). Japan argues 
the ITA is a "political declaration", but generally agrees with the United States that the ITA is not treaty text for 
purposes of interpreting the EC concessions (Japan's response to Panel question Nos. 1, 2 and 5; Japan's second written submission, para. 18). Japan considers that  the substantive content of the ITA that was subsequently 
included in the concessions of the EC Schedule should be given less interpretative weight (Japan's second 
written submission, para. 18). Chinese Taipei submits th at the ITA was "accepted" by all WTO Members as an 
instrument related to the Schedule of Concessions, as demonstrated by the fact that the ITA was negotiated and 
agreed upon within the framework of  the WTO during the Ministerial Conf erence in Singapor e on 13 December WT/DS375/R 
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  headnote in terms of modifications made to the EC  Schedule, as well as concessions in other ITA 
participants' Schedules of concessions. 
7.349  The European Communities  argues that the ITA is "closely related" to the schedules of ITA 
participants, and as such, can be considered as cont ext in the sense of Article 31(2)(b) of the Vienna 
Convention.
462  To the extent the ITA does provide relevant  context to interpret the EC Schedule, the 
European Communities argues, however  that the ITA itself must be in terpreted in accordance with the 
Vienna Convention.463 The European Communities considers th at interpretation of the ITA does not 
support the complainants' case, despite the fact that the complainants have limited their arguments to 
"artificially selected ITA provisions".464 
7.350  The Panel will address each of the possible sources of context, in turn. 
The terms of the EC headnote and Annex to the EC Schedule read in the context of the ITA  
Arguments of the parties 
7.351  The complainants  submit that various provisions in th e ITA, in particular, its preamble, 
paragraphs 1 and 2 of the main  text, and paragraphs 2, 3 a nd 5 of the Annex, support their 
interpretation that products initiall y described in the Annex to the EC Schedule must be granted duty-
free treatment irrespective of where they  are classified in the EC Schedule. 
7.352  To the contrary, the European Communities argues that various provisions of the ITA 
support an interpretation that the tariff item numbers  in the Annex to the EC Schedule effectively 
"exhaust" the commitments it has undertaken. 
7.353  The parties' views with respect to these provisions are considered below. 
The preamble  and paragraph 1 of the ITA 
7.354  The complainants  argue that the language in the pr eamble and paragraph 1 of the ITA 
support their interpretation of the EC headnote.  In  particular, the complainants refer to provisions 
such as the aim of "achieving maximum freedom of world trade in information technology products"; 
that the ITA endeavours "to encourage the continue d technological development of the information 
                                                                                                                                                                     
1996 (Chinese Taipei's second written submission, para. 8;  Chinese Taipei's response to Panel question No. 2).  
Chinese Taipei considers the reference in the chapeau to  the ITA is an additional element that shows that all 
WTO Members have accepted the ITA in connection with c oncessions in the Members' Schedules.  In addition, 
Chinese Taipei notes that modifications to the Schedules of Concessions for all ITA participants were 
implemented in accordance with the "Procedure for Modification and Rectif ication of Schedules of Tariff 
Concessions", to which all WTO Members were parties (C hinese Taipei's second written submission, para. 8). 
462 European Communities' response to Panel question No. 1. 
463 European Communities' responses to Panel questions Nos. 1 and 2.  According to the European 
Communities, the ITA is a "full-fledged" international treaty in the sense of Article 2(1) of the Vienna 
Convention, as it clearly contains "unambiguously worded legal obligations" which are binding under public 
international law on all the parties to the declaration. The European Communities considers it irrelevant that the 
ITA is designated as a "ministerial declaration", noting th at the first paragraph of the preamble to the ITA uses 
the term "agreement" (European Communities' response to Panel question No. 1).  The European Communities 
submits that, before relying on any part of the ITA as co ntext, one must first determin e the meaning of that text 
under the ITA (European Communities' response to Panel question No. 2). 
464 European Communities' response to Panel question No. 2.  WT/DS375/R 
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  technology industry on a world-wide basis", and that  trade regimes "should evolve in a manner that 
enhances market access opportunities for information technology products".
465  
7.355  The United States argues that these provisions reflect that the ITA participants contemplated 
a "positive evolution in market access".  This  shows, the United States argues, that the ITA 
participants were interested in ensuring that duty-free treatment would be maintained, even as 
technology evolved and "a singl e digital product came to have additional purposes previously 
assigned to other products".466 The United States argues, the full provisions of the ITA, including 
Attachment B, should be read consistently with  the language of encouraging expanded trade and 
technological development.  In its view, if ever y advance in technology necessitated renegotiating, 
economic operators would be discouraged from i nnovating, as doing so would compromise duty-free 
access.467   
7.356  Japan  argues that the objectives embodied in the pr eamble and paragraph 1 of the ITA reflect 
an attempt to encourage "technological development"  and "evolution," not to create disincentives for 
them. In its view, it would not be consistent with these objectives to  reduce tariffs on certain products, 
only to re-impose them on the basis of changes to products through technological development.468 
7.357  Chinese Taipei argues that the cited provisions of the preamble or paragraph 1 of the ITA 
establish that "trade regimes" should evolve in a way that enhances market opportunities.  It argues 
that nothing in those provisions indicates that the coverage provided under Attachments A and B 
should be read "restrictively" or "strictly interpre ted", or that products should be excluded from the 
scope of the ITA just because they are more technol ogically advanced than th ose that existed at the 
time the ITA was negotiated.469  
7.358  The European Communities , however, submits that the "artificially selected" ITA 
provisions referred to by the complainants do not support their case.470  It considers that the cited 
provisions cannot be read in isolation from the rest of the ITA.471 The European Communities recalls 
that paragraph 1 of the ITA uses the word "should"  and not "shall" and is, therefore, not mandatory.472 
Further, the European Communities argues that paragraph 1 of the ITA also refers to "each party's 
trade regime" rather than specifically to the interpretation of a given tariff concession.473 The 
European Communities disagrees that the reference to "trade regime" in paragraph 1 indicates that the 
ITA covers the "now ever-evolving information technology industry".474 The European Communities 
considers that the Preamble and paragraph 1 of the ITA are important to unde rstand paragraph 3 of the 
ITA Annex475, which, it argues, is the only provision th at addresses questions regarding enlargement 
                                                      
465 See United States' first written submission, para. 28; United States' second written submission, 
para. 60; Japan's first written submi ssion, para. 175; Chinese Taipei's second written submission, para. 14. 
466 United States' first written submission, para. 107. 
467 United States' second written submission, para. 61. 
468 Japan's first written submission, para. 175. 
469 Chinese Taipei's second written submission, paras. 15-16. 
470 European Communities' response to Panel question No. 2. 
471 European Communities' response to Panel question No. 2.  The European Communities argues that 
the ITA includes a "carefully nego tiated scope of products" and "detailed procedures for the review and 
updating of that scope, including in the light of technological development." 
472 European Communities' response to Panel question No. 2. 
473 European Communities' response to Panel question No. 2 . 
474 European Communities' comments on responses by complainants to Panel question No.101. 
475 European Communities' response to Panel question No. 2. WT/DS375/R 
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  of the product scope as a result of technological development.
476  In its view, the ITA Annex reflects 
the notion that the information technology industry has a "rapidly advancing nature" and that the 
language of the ITA was not intended to "cover ever y new product that may come along in the rapidly 
developing, converging info rmation technology sector".477   
Paragraph 2 of the ITA and  paragraph 2 of the ITA Annex  
7.359  The complainants  argue that paragraph 2 of the IT A and paragraph 2 of the ITA Annex 
establish a "dual approach" for tariff liberalization,  under which ITA participants agreed to bind and 
eliminate duties for products that were either classi fiable under HS headings listed in Attachment A, 
or were described within a list of products in Attachment B.478  They consider that products could be 
covered by either Attachment, or both.479  In the complainants' view, paragraph 2 of the ITA 
establishes the obligations, while paragraph 2(b) of the ITA Annex sets forth modalities for binding 
and eliminating duties on ITA products.480  The complainants submit that paragraph 2(b) of the ITA 
Annex directs participants to attach an "annex"  to their WTO Schedules, including all products in 
Attachment B, and to "provide a list of the detaile d HS headings involved fo r products specified in 
Attachment B".   
7.360  Under paragraph 2 of the ITA and pa ragraph 2 of the ITA Annex, the United States  argues 
that each Member was instructed to specify the part icular HS headings that the Member considered 
applicable at the time of implementing ITA concessions . The United States argues that the list of tariff 
item numbers in the Annex to the EC Schedule (notifie d on the basis of Article 2 of the ITA) refer to 
other descriptions in a separate part of the EC Sche dule, which only indicate the types of products that 
were considered to be covered at that  time by its Attachment B concessions.481 Thus, the United States 
considers that the codes beside the Attachment B product descriptions cannot limit the coverage to 
                                                      
476 European Communities' comments on responses by complainants to Panel question No. 101. The 
European Communities considers that paragraph 1 of the ITA is more relevant to other provisions, such as those 
addressing non-tariff barriers referred to in paragraph 3 of the ITA Annex, than to the consideration of other 
parts of the ITA that establish the scope of tariff concessi ons.  Similarly, it argues that the text of the preamble 
of the ITA "can only be understood" as referring to th e procedures provided for in the ITA for liberalization and 
"future" expansion of trade in information technology (European Communities' response to Panel question 
No. 2).   
477 European Communities' first written submission, para. 15. 
478 United States' first written submission, paras. 8 and 23; Japan's first written submission para. 143 
(stating that the obligations in tariff concessions made pursuant to Attachment A and Attachment B are legally independent of each other); Chinese Taipei's first wr itten submission, para. 24 (s tating that there are two 
categories of products covered in the ITA: those which are listed in Attachment A to the Annex to the 
Declaration and those which are listed in Attachment B to the Annex to the Declaration). 
479 United States' first written submission, para. 23.  In the United States' view, the dual approach 
sought to ensure that classification developments woul d not undermine the goal of ensuring duty-free treatment 
(United States' first written submission, para 29); United States' response to Panel question No. 10(b), para. 24; 
Japan's first written submission, para. 263; Chinese Taipei's response to Panel question No. 10(b). 
480 Complainants' response to Panel question No. 103.  Japan argues that, since paragraphs 2(a) and 
2(b) of the ITA define the scope of the participants' duty-free commitments by referring only to narrative descriptions and HS headings without referring to the modalities set forth in paragraph 2 of the ITA Annex, the 
main paragraphs have priority, and those in the ITA An nex are ancillary.  Therefore, the Annex cannot "trump" 
commitments in the main provisions. In its view, paragraph 2 of the ITA Annex should be read "within the context of" paragraph 2(b) of the ITA itself.  Chinese Taipei argues that Paragraph 2 of the ITA Annex cannot 
add to or reduce the commitments resulting from paragraph 2(b) of the ITA, which aim to eliminate customs 
duties and other duties and charges for those products listed in Attachment B (Chinese Taipei's response to Panel question No. 103). 
481 United States' responses to Panel question Nos. 7, 82 and 116.  WT/DS375/R 
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  Attachment B products classifiable in those codes.
482 The United States argues that, were the codes to 
determine the coverage for those products descr ibed in Attachment B products, this would be 
inconsistent with the text of the EC headnote (and headnotes included in other ITA participants' 
Schedules) which requires duty-free treatment for a ll Attachment B products wherever they are 
classified.  It argues that the headnote would also  be inutile as ITA participants could have bound 
their headings at zero without including a headnote at all.483 The United States further considers it 
relevant that the Attachment B narrative product descriptions are generally not based on the HS.484   
7.361  Japan  argues that the requirement to include an "annex" including all products in 
Attachment B means that the narrative descriptions of  all Attachment B products were intended to be 
included and to define the scope of the concession.485  Japan considers that their inclusion confirms 
the primacy of the language of the narrative produc t descriptions over the codes listed beside them.486  
Japan further considers that the reference in paragra ph 2(a) of the ITA to products that are "classified 
(or classifiable)" confirms that the duty-free co mmitments pursuant to Attachment B cover all 
products falling within the narrative description, rega rdless of their classification by national customs 
authorities.487  Japan also argues that the use of approva l on a "consensus basis" makes more sense if 
HS headings are treated as non-binding, since it is easier to reach consensus on something that "does 
not have the potential to change or redefine the scope of the concession".488   
7.362  Chinese Taipei  explains that the terms "classified (or classifiable)" in paragraph 2 of the ITA 
indicates that the "negotiators intended to define th e scope of products in Attachment A on the basis 
of the HS" and that accordingly, the HS1996 plays a role in the interpretation of the scope of 
concessions in relation to products listed in Attachme nt A. However, it argues that no such reference 
can be found in paragraph 2(b) of the ITA which refe rs to "all products specified in Attachment B to 
the Annex to this Declaration, whether or not they are included in Attachment A."489 Chinese Taipei 
argues that  paragraph 2(b) of the ITA sets forth the ge neral commitment to eliminate customs duties 
and other duties and charges with respect to the pr oducts described in narrative descriptions listed in 
Attachment B.  It considers that paragraph 2 of the ITA Annex sets out the implementation procedure 
to be followed, namely specifying HS codes for the products listed in Attachment B.490  By doing so, 
it argues, ITA participants agreed that the scope of the concession would be defined by the relevant 
product description and not the notified HS headings.491 Thus, the HS headings would not restrict the 
scope of the concession, as defined by the product descriptions.492  Chinese Taipei argues that, while 
paragraph 2(b) of the ITA defines the scope of th e tariff commitments, paragraph 2 of the ITA Annex 
                                                      
482 United States' response to Panel question No. 103; United States' comments to European 
Communities' responses to Panel question No. 102. 
483 United States' comments on European Communities' responses to Panel question Nos. 103-104. 
484 United States' first written submission, para. 23. 
485 Japan's response to Panel question No. 103. 
486 Japan's response to Panel question No. 104. 
487 Japan's response to Panel question No. 104.  Japan submits that a reference to the HS is made only 
for Attachment A products and not for Attachment B products. 
488 Japan's response to Panel question No. 103.  Japa n further argues that th e "review and approval" 
process referenced in the chapeau of paragraph 2 of th e ITA Annex was based on the lack of any mechanism to 
impose uniformity on how countries would illustrate the scope  of the concessions. Notably, Japan points out that 
ITA participants notified different headings, including HS tariff lines in some cases and national tariff lines in 
others, or no headings at all (in the case of Japan).  Japa n argues that the uniformity, instead, comes from the use 
of the same narrative descriptions to describe the c oncession (Japan's response to Panel question No. 103). 
489 Chinese Taipei's response to Panel question No. 104. 
490 Chinese Taipei's response to Panel questions Nos. 100 and 103. 
491 Chinese Taipei's second written submission, para. 103. 
492 Chinese Taipei's responses to the Panel's question No 7. WT/DS375/R 
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  identifies the HS describing it as a tool for im plementing the concessions in each participant's 
Schedule. Paragraph 2 of the ITA Annex cannot add to or reduce the co mmitments resulting from 
paragraph 2(b) of the ITA. It explains that the co mmitments set out in the ITA are substantive and that 
they aim at elimination of customs duties a nd other duties and charges with regard to, inter alia , 
products listed in Attachment B.  In contrast, it ar gues, the commitments estab lished in the Annex are 
procedural, setting out the modalities in which the s ubstantive commitments are to be implemented.  
Therefore, Chinese Taipei submits that the nature and scope of the commitments in the ITA and its 
Annex are different and both must be read together.
493   
7.363  The complainants argue that the codes are "illustrative" only.494  Japan  argues that the HS 
headings notified in accordance with subparagraph 2(b)(ii) of the ITA Annex were intended "to 
clarify as far as possible" what headings are include d in the narrative descriptions as "illustration" or 
"limited context", rather than to narrow the sc ope or to exhaust the meaning of the narrative 
description.495 Thus, the reference to "detailed HS head ings involved for products specified in 
Attachment B" was intended to refer to headings  that concern or relate to the narrative product 
description, but not to define the scope of the concession.496 Chinese Taipei  argues that the codes 
listed are "evidence" of how the European Comm unities considered the Attachment B concession 
should be translated into the CN and the CCT.  It argues, however, that this cannot substitute for the 
determination of the common intention of all WTO memb ers.  Therefore, it argues, an analysis of the 
tariff item numbers listed beside the product descripti on may only help to ascertain what the European 
Communities considered to be included in the con cession without such list constituting an exhaustive 
description.497 
7.364  The European Communities  argues the codes notified in accordance with paragraph 2 of the 
ITA Annex, which were accepted by consensus and certified, represent a common agreement between 
WTO Members498, and "exhaust" the Europ ean Communities' commitment with respect the narrative 
product descriptions to which they relate.499 The European Communities ar gues that the ITA through 
paragraphs 2 of the main ITA te xt and paragraph 2 of its Annex directs members to extend duty-free 
coverage to products under Attachment A, where there was no disagreement as to proper 
classification of products described by HS headings, or products under Attachment B, where participants did not oppose the inclusion of produc ts in the ITA, but disagreed with respect to 
classification.
500 The European Communities considers th e descriptions in Attachment B as 
"sometimes deliberately broad" and other times "d escribed very narrowly" in order to exclude 
products, such as televisions.501  While noting that the language of the narrative product definitions is 
                                                      
493 Chinese Taipei's response to Panel question No. 103. 
494 United States' response to Panel question Nos. 7 and 82 (para. 113); Japan's response to Panel 
question No. 6; Chinese Taipei's response to Panel question No. 7. 
495 Japan's responses to Panel question Nos. 103 and 107.  Japan argues that the codes thus "can help 
illustrate the range of products that fall within the narrative product descriptions".  It considers that reading them 
this way "preserve[s] the integrity of the Attachment B approach as going beyond the HS nomenclature" (Japan's response to Panel question No. 116). 
496 Japan's response to Panel question No. 103. 
497 Chinese Taipei's response to Panel question No. 116. 
498 European Communities' first oral statement, para. 21. 
499 European Communities' response to Panel question No. 10(c), para. 31.   
500 European Communities' first written submission, para. 18.  The European Communities argues that 
the ITA Annex, including its Attachments are integral parts of  the ITA as a whole.  This is also demonstrated by 
the chapeau of paragraph 2 of the main text, which reads "[p]ursuant to the modalities set forth in the Annex ...".  
It argues that there is no hierarch y between the main text of the ITA, the ITA Annex and the Attachments and 
the provisions should be read holistically (Europea n Communities' response to Panel question No. 104). 
501 European Communities' first written submission, paras. 19-20.  WT/DS375/R 
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  not HS language per se , the European Communities argues that " it was explicitly foreseen that they 
would be implemented by means of HS headings", in particular, by the fact that paragraph 2 of the 
ITA Annex requires parties to identify the "detaile d HS headings involved for products specified in 
Attachment B". Thus, it argues, the language of th e ITA including the Attach ments is influenced by 
the HS.
502 The European Communities is of the view that , since reference is made to HS headings 
both in the language of the ITA and in the ITA Annex, the ITA commitments had to be made 
specifically in relation to products id entified with their HS headings.503   
7.365  The European Communities explains that it could be possible to interpret provisions of the 
ITA such that the headnote provides for a "safety net"  in respect of products defined in Attachment B 
whereby there could, at least in principle, be othe r products than those identified with headings in the 
EC Schedule that fulfil a given product definition.504 Under this scenario, th e European Communities 
contends that the product definitions in Attachment  B of the ITA itself would arguably provide for a 
separate obligation. Thus, on this basis there would formally be two sets of commitments pursuant to 
Attachment B in the EC Schedule, one that comb ines the product descriptions and the headings next 
to them and another that incorporates the product de scriptions in the ITA itself into the EC Schedule 
as a "safety net".505 In this safety-net scenario, a particular product may fall within a heading other 
than those identified next to the description. However, the European Communities argues that it 
would be necessary for a complainant to demonstrate through "overwhelming evidence" that there are other such products, and therefore other head ings that would correspond to such a product 
description.
506 
7.366  The complainants reject the European Commun ities' allegation that the complainants are 
required to demonstrate that there are headings ot her than those identified in the Annex to the EC 
Schedule that would correspond to that definition, and that "overwhelming ev idence" would need to 
be provided to prove that a specific product falling w ithin the terms of the description of FPDs is not 
being given duty-free treatment.507    
Paragraph 3 of the ITA Annex  
7.367  The complainants  argue that paragraph 3 of the ITA A nnex pertains to new or "additional" 
products and does not limit the scope of existing concessions in the ITA.  The United States  argues 
                                                      
502 European Communities' response to Panel question No. 21. 
503 European Communities' response to Panel question No. 21 (stating that "the HS96 and its rules are 
therefore necessarily relevant and app licable also in relation to the commitments made pursuant to Attachment 
A, Section 2 and Attachment B of the ITA").   In light of its view that the CN codes in the Annex to the EC 
Schedule establish the binding obligations, the European Communities argues that the obligations should be 
interpreted in accordance with the relevant language of those CN codes and the corresponding HS1996 rules 
(European Communities' response to Panel question Nos. 21 and 112). 
504 European Communities' responses to Panel question Nos. 3 and 5. 
505 In light of the language contained in the headnote, the product descriptions in Attachment B would 
arguably prevail over any discrepancies with the language in the Schedule.  The European Communities argues 
has not been able to identify any differences between the la nguage used in the relevant parts of the Schedule and 
the product definitions in Attachment B except for the id entification of the specific headings in the EC Schedule 
(European Communities response to Pa nel question No. 5, para. 18). 
506 European Communities' second written submission, para. 19; European Communities' response to 
question 1 from the United States  during the second meeting. 
507 United States' comments on European Communities' response to Panel question Nos. 100-103 and 
questions 1-3 of the United States during the second meeting (rejecting the European Communities' argument imposing a "strict burden of proof"); Japan's second oral statement, para. 64 (referring to European 
Communities' second written submission, para. 19). WT/DS375/R 
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  that paragraph 3 of the ITA Annex pertains to "addi tional products", not to products that fall within 
the terms of the concessions.
508  Japan  argues that paragraph 3 is "largely irrelevant" to the present 
dispute as it "simply states the obvious", i.e., that participants can meet again to increase the product 
coverage.509 Japan considers that the European Comm unities has "dramatically overstated" the 
interpretative significance of paragraph 3 of the IT A Annex regarding future negotiations based on its 
view that the possibility for future negotiations  "somehow narrows" the scope of the original 
concessions.510 Chinese Taipei  submits that the European Comm unities gives too much significance 
and weight to the procedure for future negotiations  envisaged in paragraph 3 of the ITA Annex.  
Chinese Taipei submits that paragraph 3 addresses futu re negotiations and that it is thus "largely 
irrelevant" to the determination of the existing pr oduct coverage of the ITA, because it pertains to 
future potential negotiations.  Paragraph 3, it argu es, "only, and logically, envisages a procedure to 
extend the scope of the ITA that does not impose or ask  for a restrictive interpretation of the products 
covered by the ITA".511   
7.368  The European Communities  submits that the ITA Annex shows that the parties were well 
aware of the rapidly advancing nature of the IT industry and considers that the ITA's language "was 
not expected to cover every new product that may come along in the rapidly developing, converging information technology sector".
512  To capture the object and purpose of the ITA, it argues, all these 
parts have to be interpreted in such a way that a ll of them are given meaning and none of them is 
rendered ineffective.513  In its view, paragraph 3 of the IT A Annex provides a mechanism for updating 
the Annex and a framework for resolving the am biguities that convergence and rapid development 
were expected to bring to customs classification in this sector.514   
Paragraph 5 of the Annex  
7.369  The complainants  argue that paragraph 5 of the IT A Annex pertains to matters of 
classification harmonization, and does not limit the scope of existing concessions in the ITA. The 
United States  argues that paragraph 5 of the ITA Annex simply establishes a m echanism for working 
toward common classification of in formation technology products.515  Japan  argues that paragraph 5 
(and 6) of the ITA Annex would not have been necessary, had the implementation of the ITA, 
including specifically the selection of tariff lines in the national tariff schedules, not been exclusively 
or conclusively addressed under paragraph 2 of the ITA. 516  Chinese Taipei  considers that paragraph 
5 relates to "divergences in the classification of products for which commitments are already made".  
Therefore, it argues that the procedure is "not aimed at 'enlarging' commitments but at removing 
classification divergences for products which are already covered by existing concessions."517   
7.370  Chinese Taipei is of the view that the negotiato rs of the ITA were "crystal clear" about the 
difference between the issue of modification of product coverage and the issue of classification.518  
Chinese Taipei alleges that classification diverg ences would only happen after the scope of product 
                                                      
508 See, for instance, United States' re sponse to Panel question No. 118. 
509 Japan's second written submission, para. 20. 
510 Japan's second written submission, para. 19. 
511 Chinese Taipei's second written submission, para. 17. 
512 European Communities first written submission, para. 15. 
513 European Communities' first written submissions, para. 22. 
514 European Communities' first written submission, para. 16.   
515 United States' comments to European Communities' responses to Panel question No. 107. 
516 Japan's response to Panel question No. 103. 
517 Chinese Taipei's response to Panel question No. 109. 
518 Chinese Taipei's comment on European Communities' response to Panel question No. 118.  WT/DS375/R 
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  coverage has been defined and, therefore, the manda tes of paragraph 3 and pa ragraph 5 "are different 
and separate and should not be mixed up".
519 
7.371  The European Communities  argues that paragraph 5 of the ITA Annex addresses 
divergences in product classification within the HS nomenclature, including those in Attachment B.520   
Consideration by the Panel 
Does the ITA qualify as context within the meaning of Article 31 of the 
Vienna Convention ? 
7.372  Prior to considering the parties' arguments w ith respect to the substance of the ITA, the Panel 
will address whether the ITA may serve as context within the meaning of the Vienna Convention  to 
interpret the concessions in the EC Schedule. In lig ht of the parties' unanimous views that the ITA 
falls within Article 31(2)(b) of the Vienna Conve ntion, we will begin our analysis with this 
provision.521   
7.373  We recall that Article 31(2) of the Vienna Convention provides that: 
"The context for the purpose of the interp retation of a treaty shall comprise, in 
addition to the text, including its preamble and annexes: 
(a) any agreement relating to the treaty which was made 
between all the parties in connection with the conclusion of the treaty; 
(b) any instrument which was made by one or more parties in 
connection with the conclusion of  the treaty and accepted by the 
other parties as an instrument related to the treaty." 
7.374  In addition to the text of the treaty, incl uding its preamble and annexes, Article 31(2) 
mentions certain "agreements" and certain "instrum ents" that must also be taken into account as 
context by a treaty interpreter.  As the Panel in EC – Chicken Cuts  observed: 
"Regarding other agreements or instruments that may qualify under Article 31(2), the 
International Law Commission stated that: 
'[T]he principle on which [Article 31( 2)] is based is that a unilateral 
document cannot be regarded as form ing part of the context [...] 
unless not only was it made in connexion with the conclusion of the 
treaty, but its relation to the treaty  was accepted in the same manner 
by the other parties.  [...] What is proposed in paragraph 2 is that, for 
purposes of interpreting the treaty, these categories of documents should not be treated as mere evidence to which recourse may be had 
                                                     
 
519 Chinese Taipei's comment on European Communities' response to Panel question No. 118. 
520 European Communities' first written submission, para. 17. 
521 See United States' response to Panel question No. 2; Japan's response to Panel questions Nos. 1 and 
2; Chinese Taipei's response to Panel question No. 2; European Communities' response to Panel question Nos. 1 
and 2.  We note, in addition, certain third parties agree th at the ITA provides relevant context:  see, for instance, 
Australia's third party oral statement, para. 12; China's third party oral statement, para. 6; Costa Rica's third 
party submission, paras. 7-13. WT/DS375/R 
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  for the purpose of resolving an ambiguity or obscurity, but as part of 
the context for the purpose of arriving at the ordinary meaning of the terms of the treaty.'
255 (emphasis added) 
Further, a leading international law commentat or suggests that, in order to be related 
to the treaty, and thus be part of the 'context' as opposed to the negotiating history, which is dealt with in Article 32 of the Vi enna Convention, an instrument 'must be 
concerned with the substance of the treaty and clarify certain concepts in the treaty or 
limit its field of application. It must equally be drawn up on the occasion of the 
conclusion of the treaty.'
256 
_____ 
255 Yearbook of the International Law Commission, 1966, Vol. II, p. 221, para. 13. 
256 Ian Sinclair, The Vienna Convention  on the Law of Treaties , Manchester University Press, 
2nd edition (1984), p. 129." 522 
7.375  The parties to this dispute have debated whether the ITA is a "full-fledged treaty"523 or a 
"political declaration".524  We note that Article 2(1)(a) of the Vienna Convention defines "treaty" to 
mean:  
"[A]n international agreement conclude d between States in written form and 
governed by international law, whether embodied in a single instrument or in two or more related instruments and whatev er its particular designation".   
7.376  Setting aside for the moment whether the ITA is a treaty or not, Article 31(2) recognizes that 
both "agreements" and "instruments" may qualify as c ontext as long as they meet certain conditions.  
The Vienna Convention refers to the concepts of "agreement" and "instrument" within the definition 
of "treaty" above.
525 The statement by the International Law Commission above implies that a 
qualifying "instrument"526 may even be a unilateral "document" so long as it complies with the 
additional requirements in Article 31(2)(b) that it w as "made in connection with the conclusion of the 
treaty", and "its relation to the treaty was accepted in the same manner by the other parties". In light of 
this, it is useful to consider whether the ITA is co ncerned with the substance of the treaty, clarifies 
concepts in the WTO Agreement , or otherwise limits its field of application, and the extent to which it 
was drawn up on the occasion of the conclusion of the treaty. 
7.377  At a minimum, the ITA qualifies as an "instrument" for the purposes of Article 31(2)(b).527  
The ITA was proposed, drafted and agreed to by a subset of WTO Members and states or separate 
                                                      
522 Panel Report on EC – Chicken Cuts , paras. 7.153-7.154. 
523 European Communities' response to Panel question No. 1. 
524 Japan's response to Panel question Nos. 1 and 2. 
525 Specifically, the definition in Article 2(1) seems to imply that an "agreement" may itself be 
composed of one or more "instruments". 
526 Panel Report on EC – Chicken Cuts , para. 7.154 (citing Ian Sinclair, The Vienna Convention on the 
Law of Treaties , Manchester University Press, 2nd edition (1984), p. 129. 
527 In US – FSC (para. 7.58), the panel consid ered the ordinary meaning of the term "instrument" as 
follows: 
"In this respect, we note that the word "instrument" has been defined by one dictionary as follows: 
'Law. A formal legal document whereby a right is created or confirmed, or a fact recorded; a formal writing of 
any kind, as an agreement, deed, charter, or record, drawn up and executed in legal form".[footnote omitted]  
Similarly, a legal dictionary has defined the word "ins trument" to mean, inter alia, '[a] document or writing 
which gives formal expression to a legal act or agreement, for the purpose of creating, securing, modifying or  WT/DS375/R 
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  customs territories in the process of  acceding to the WTO. ITA partic ipants in turn modified their 
WTO Schedules, which themselves form part of the WTO Agreement, following the conclusion and signing of the ITA.  In this sense, the parties r ecognized the ITA as an "instrument" as we understand 
that term. 
7.378  The ITA also represents an instrument "made by  one or more parties in connection with the 
conclusion of the treaty", where the term "parties"  refers to WTO Members. The ITA (formally the 
Ministerial Declaration on Trade in Information Technology Products) was agreed upon on 13 December 1996 by 15 WTO Members (counting the th en 15 EC member States as one), as well as 
States or separate customs territories in the proce ss of acceding to the WTO. Pursuant to the provisions 
in the ITA, participants modified their schedules of concessions, which themse lves form part of the 
WTO Agreement .
528 Because the original ITA participants expressly agreed to a process for 
incorporating ITA-related concessions into their WT O Schedules, the Panel considers that the ITA was 
clearly made "in connection with the conclusion of the treaty", as the WTO Members amended their 
Schedules (which form part of the WTO Agreement) in order to give effect to the ITA. 
7.379  The ITA also meets the requirement of having being "accepted by the other parties as an 
instrument related to the treaty."  At least thre e elements demonstrate this.  First, the ITA was 
recognized under paragraph 18 of the Singapore Mi nisterial Declaration of 13 December 1996 which 
was adopted by all WTO Members: 
"Taking note that a number of Members have agreed on a Declaration on Trade in 
Information Technology Products, we welcome  the initiative taken by a number of 
WTO Members and other States or separate customs territories which have applied to 
accede to the WTO, who have agreed to ta riff elimination for trade in information 
technology products on an MFN basis ..."529 (emphasis added) 
7.380  This express reference to the ITA in a WTO Mini sterial Declaration adopted by consensus by 
all WTO Members constitutes, in our view, acceptance by WTO Members that the ITA is an 
instrument related to the WTO Agreement .   
7.381  Second, following the ministerial declaration, ITA participants modified their WTO 
Schedules of concessions to reflect commi tments undertaken pursuant to the ITA.530  No objections 
were raised by other WTO Members within the thr ee-month period provided for such purpose to the 
ITA-related modifications that were proposed by the European Communities531 and these were, 
therefore, certified by the Director General of the WTO in document WT/Let/156. 
7.382  Third, the EC headnote of the Annex to th e EC Schedule, which forms part of the WTO 
Agreement , makes express reference to the ITA, furthe r suggesting that the ITA is related to the WTO 
Agreement .   
                                                                                                                                                                     
terminating a right; a writing executed and delivered as the evidence of an act or agreement'.[footnote omitted]  
Thus, the term 'legal instrument' in its ordinary meaning involves the existence of a formal legal text that has a 
binding effect in determining the rights and/or obligations of the parties thereto, which in this case would be all GATT 1947 contracting parties.[footnote omitted]" 
528 The document in which the European Communities requested the modification of its schedule 
pursuant to obligations assumed under the ITA contains  a sentence that reads: "[p]lease find attached the 
modifications to the EC Schedule ... which incorporate the commitments under the ITA " (emphasis added) 
(/MA/TAR/RS/16, 2 April 1997).   
529 WT/MIN(96)/DEC (18 December 1996) (Exhibit US-95). 
530 See paras. 7.18 and 7.21 above. 
531 G/MA/TAR/RS/16 (2 April 1997). WT/DS375/R 
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  7.383  For the reasons discussed above, the Panel concl udes that the ITA qualifies as an instrument 
that was made by one or more parties in connec tion with the conclusion of the treaty and accepted by 
WTO Members as an instrument related to the treaty.   The ITA may thus serve as context within the 
meaning of Article 31(2)(b) of the Vienna Convention. 
7.384  Finally, the Panel notes the point raised by the European Communities that the ITA, which 
the European Communities considers is a full-fledged treaty, must be interpreted following the rules 
of the Vienna Convention first, after which its te rms may be relied upon as context to interpret the EC 
Schedule.  The Panel has not addressed the question of whether the ITA is in its own right a treaty 
within the sense of Article 2 of the Vienna Conventio n or any other relevant provision.  We agree that 
a treaty is to be interpreted accord ing to the rules codified in the Vienna Convention, which require 
that a treaty be interpreted in good faith in accordan ce with the ordinary meaning to be given to its 
terms.  In our view, in considering the terms of the ITA as context, this will in any event involve 
ascertaining the ordinary meaning of the terms of the ITA, regardless of its nature as a treaty or other 
instrument.  Hence, the Panel does not consider it necessary to reach a finding on whether the ITA is a 
treaty or some other kind of agreement or declaration. 
The EC headnote considered in the context of the ITA 
7.385  The Panel  will now consider whether the ITA informs its preliminary conclusion that 
products initially described in the Annex to the EC Schedule must be granted duty-free treatment 
irrespective of where they are classi fied in the EC Schedule.  In so doing, it is appropriate to look at 
the ITA in a holistic manner, ensuring that all the provisions in the ITA are given meaning and none 
of them is rendered meaningless.  Therefore, we wi ll analyse the ITA, looking not only at its main 
provisions, but also at relevant provisions in the preamble, Annex and Attachments, as well as the text 
that immediately precedes each Attachment.  
7.386  We begin with the phrases in the preamble wh ich have been addressed by the parties and 
paragraph 1 of the ITA. We note that the parti es have made reference to two phrases in the ITA 
preamble that read " Desiring to achieve maximum freedom of worl d trade in information technology 
products" and " Desiring to encourage the continued technological development of the information 
technology industry on a world-wide basis" as well as the language in paragraph 1 of the ITA that 
reads "Trade regimes should evolve in a manner to enhance market access opportunities of IT 
products". The use of the word "desiring" at the be ginning of the sentences in the preamble and the 
use of the word "should" in paragraph 1 reflect s that these opening provisions of the ITA represent 
non-mandatory provisions. This language contrasts with  the use of the word "shall" in ITA paragraph 
2, which we discuss below.  We do not see grounds, based on these provisions alone, to find that the 
ITA mandates a particularly expansive approach to product coverage or to interpret the specific duty-
free commitments made pursuant to the ITA.
532  Indeed, we do not consider that these non-mandatory 
provisions should bear in any specific way on the interpretative task before the Panel, namely 
interpreting the meaning of the Annex to the EC Schedule , and the EC headnote in particular. 
7.387  The non-mandatory nature to expanding the produc t coverage is reinfor ced and made explicit 
by paragraph 3 of the ITA Annex, which provides as follows: 
                                                      
532 We see no basis, as the European Communities seems to argue in its response to Panel question 
No. 2, to conclude that the non-mandatory provisions encouraging the evolution of the participants' trade regime 
"in a manner to enhance market access opportunities of IT products" has more significance for work on non-
tariff barriers than on tariff concessions.  We observe that both the tariff and non-tariff aspects are part of the 
trade regime that should evolve in a manner that enhances market access oppor tunities for information 
technology products.  WT/DS375/R 
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  "Participants shall meet periodically unde r the auspices of the Council on Trade in 
Goods to review the product coverage specified in the Attachments, with a view to 
agreeing, by consensus, whether in the light of technological developments, 
experience in applying the tariff concessi ons, or changes to the HS nomenclature,  the 
Attachments should be modified to  incorporate additional products , and to consult on 
non-tariff barriers to trade in information technology products. Such consultations 
shall be without prejudice to rights a nd obligations under the WTO Agreement."  
(emphasis added) 
7.388  This explicit provision for future review s of product coverage affirms that the ITA 
participants were aware that the product coverage  in the ITA was not comprehensive. The European 
Communities argues that paragraph 3 of the ITA Annex is the mechanism envisaged by negotiators 
for updating the product coverage of the ITA and part of the framework for resolving the ambiguities 
that convergence and rapid developm ent were expected to bring to customs classification in this 
sector.
533 We agree that paragraph 3 of the ITA Annex is about "updating" the product coverage and 
including "additional" products in the ITA, as this  is explicit in the text. However, nothing in that 
provision suggests that paragraph 3 was envisaged as a way to deal with ambiguities arising from convergence and rapid de velopment of products currently covered  by the ITA, as the European 
Communities seems to suggest.
534 Paragraph 3 of the ITA Annex discusses modification of the ITA 
Attachments to "incorporate additional products".  Since such incorporation would require the 
"modification of the Attachments", we understand th e phrase "additional products" necessarily refers 
to the inclusion of products which are not currently covered by Attachment A and Attachment B.  It is 
not possible to determine whether a product is an  "additional" product within the parameters of 
paragraph 3 of the ITA Annex wit hout first determining whether a pr oduct is covered by the terms of 
an existing concession. Absent a common interpretati on by the Members, and in the context of dispute 
settlement proceedings, the Appellate Body has explai ned that determination of whether the terms of a 
Member's Schedule describe a certain product is a qu estion that should be interpreted in accordance 
with the rules of the Vienna Convention.535 
7.389  For the above reasons, we conclude that para graph 3 of the ITA Annex does not pertain to 
products described by the HS1996 headings that ar e listed in Attachment A, or specified in 
Attachment B.  Rather, paragraph 3 pertains to pro ducts that fall outside the current coverage of the 
ITA. As a consequence, the Panel is of the view  that paragraph 3 provides little guidance on the key 
interpretative issue before it, namely whether IT A participants intended the products in and for 
Attachment B  to be liberalized "wherever the product is classified", as claimed by the complainants, 
or to be "exhausted" by the tariff lines included in  the Annex to their Schedules, as claimed by the 
European Communities.  For this reason, we see no n eed to consider this provision any further.   
7.390  Turning to other provisions of the ITA, we recall that paragraph 2 of the ITA, provides as 
follows: 
"Pursuant to the modalities set forth in the A nnex to this Declaration, each party shall 
bind and eliminate customs duties and other duties and charges of any kind, within the meaning of Article II:1(b) of the Ge neral Agreement on Tariffs and Trade 1994, 
with respect to the following:  
                                                     
 
533 European Communities' first written submission, paras. 14-15. 
534 European Communities' first written submission, paras. 16-17; European Communities' response to 
Panel question No. 2. 
535 Appellate Body Report on EC – Computer Equipment , para. 106. WT/DS375/R 
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  (a) all products classified (or classifiable) with Harmonized 
System (1996) ("HS") headings listed in Attachment A to the Annex to this Declaration; and 
(b) all products specified in Attachment B to the Annex to this 
Declaration, whether or not they are included in Attachment A; 
through equal rate reductions of customs duties beginning in 1997 and concluding in 
2000, recognizing that extended staging of reductions and, before implementation, 
expansion of product coverage may be  necessary in limited circumstances." 
7.391  Paragraph 2 of the ITA is unequivocal in di stinguishing between the approach taken for 
products classified (or classifiable) in HS1996 headi ngs "listed" in Attachment A, and for products 
"specified" in Attachment B , "whether or not" they were also included in Attachment A. The chapeau 
to the paragraph establishes that ITA participants "shall bind and eliminate customs duties and other duties and charges of any kind, within the meanin g of Article II:1(b) of the General Agreement on 
Tariffs and Trade 1994". Thus, we agree with the co mplainants' characterization of the ITA as an 
instrument seeking to achieve it s objectives through a "dual appro ach". The obligation to liberalize 
clearly applies both to all products classified (o r classifiable) in HS1996 headings "listed" in 
Attachment A and to all those products "specified" in Attachment B, whether or not included in Attachment A.   
7.392  Paragraph 2 of the ITA states that such tariff elimination is "pursuant to the modalities set 
forth in the Annex to this Declaration."  In tu rn, the ITA Annex sets out "modalities" through which 
the goals of paragraph 2 of  the ITA would be achieved.
536 Paragraph 1 of the ITA Annex indicates 
that each participant " shall  incorporate the measures d escribed in paragraph 2 of the Declaration" into 
its WTO schedule of concessions, as well as in its applied national tariff schedule.  When read 
together with paragraph 2 of the main text and the chapeau to the ITA Annex537, it is clear that the 
modalities in the ITA Annex serve as a means to fulf il the main obligations that are established in 
paragraph 2 of the ITA. In light of the defined rela tionship described in paragraph 1 of the Annex, we 
will consider paragraph 2 of the main text of the ITA, in combination with paragraph 2 of the ITA 
Annex, which relate to the product coverage set out in the Attachments. We see no basis to conclude 
that the specific modalities in paragraph 2 of the ITA Annex (the "how") could modify or diminish the 
obligations that are stated in a definitive ma nner in paragraph 2 of the ITA (the "what").538 
7.393  Paragraph 2(a) of the ITA provides for the liberalization of all products "classified (or 
classifiable)" in HS1996 headings listed in Attachme nt A, which is subdivided in two sections.  The 
                                                      
536 This is evident from the fact that the ITA Annex is entitled "Modalities and Product Coverage". 
537 The chapeau provides that "[a]ny  Member of the World Trade Organization, or State or separate 
customs territory in the process of acceding to the WTO, may participate in the expansion of world trade in 
information technology products in accordance with the following modalities:" 
538 We find textual basis for this in paragraphs 1 and 2 of the ITA Annex.  We note that paragraph 1 of 
the ITA Annex instructs participants that are WTO Members to "incorporate the measures described in paragraph 2 of the Declaration" into its schedule.  Non-members are instructed to implement them "on an autonomous basis, 
pending completion of its WTO accession, and shall incor porate these measures into its WTO market access 
schedule for goods".  Paragraph 2 of the ITA Annex continues with the phrase "[t]o this end...".  Textually, therefore, these provisions define the relationship between paragraph 2 of the main ITA text and paragraph 2 of 
its Annex.  In addition, we note that one phrase of paragraph 2(b) of the ITA Annex addresses binding and 
eliminating "customs duties on information technology products", leaving out the reference in paragraph 2 of the ITA to the "other duties and charges" as provided in Article II:1(b) of the GATT 1994.  Clearly, a truncated 
reference in the modalities is not meant to strike out the broader obligation elaborated in paragraph 2 of the ITA.  WT/DS375/R 
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  notion of "classified (or classifiable)" expressly re lates to the 1996 version of the HS.  Following the 
main text and modalities provisions in the Annex,  Attachment A, Section 1 includes several HS1996 
headings, subheadings and ex-outs in a left-hand column
539, and HS based descriptions for the listed 
headings and subheadings in a right-hand column, as well as more specific descriptions that were 
negotiated for the ex-outs.540 Similarly, Attachment A, Section 2, which is entitled "Semiconductor 
manufacturing and testing equipmen t and parts thereof", includes HS1996 subheadings  or ex-outs in 
left-hand columns541, and HS based descriptions  for the listed subheadings in a right-hand column, as 
well as more specific descriptions that were negotiated for the ex-outs.542  Section 2 also indicates 
whether a particular "HS Code,"  and its associated "Descripti on," is "For Attachment B".543   
7.394  In contrast, paragraph 2(b) of the ITA pr ovides for the liberalization of all products 
"specified" in Attachment B "whether or not they are included in Attachment A". The choice of language in paragraph 2(b) of the ITA, in particular the use of the term "specifi ed", indicates that this 
latter provision referred to something other than products classified (or classifiable) in the HS 
headings listed in Attachment A.
544   
7.395  Attachment B strictly contains product d escriptions and makes no reference to HS1996 
headings, subheadings or ex-outs.  The descriptions  are, for the most part, not taken from the HS1996 
and are, generally speaking, not based on HS language (this is certainly true for the products at issue 
in this dispute).545  A chapeau in the Annex that pr ecedes the Attachments indicates that 
"Attachment B lists specific products to be covered by an ITA wherever they  are classified in the 
HS".546  A second chapeau that immediately precedes A ttachment B in the Annex states "Positive list 
of specific products to be covered by this agreemen t wherever they are classified in the HS".  This 
latter phrase clearly reinforces the view that the intention is to cover a "positive list of specific 
products"... "wherever they are classified in the HS ".  Nothing in this phrase suggests that specific 
tariff item numbers would define the specific products that follow.   
7.396  It appears clear, therefore, that ITA drafters felt the need to resort to a set of product 
descriptions that were not generally based on the HS.  Otherwise, they could have resorted to the same 
terminology used in paragraph 2(a) , or have omitted paragraph 2(b) a ltogether.  As will be explained 
below, ITA participants were required to include the se descriptions in their Schedules.   In the Panel's 
view, this explicit recognition of a limited role for th e HS in the context of Attachment B is consistent 
                                                      
539 The HS headings and subheadings, and whether or not they are ex-outs, are indicated in three left-
hand columns, labelled "HS96". 
540 We recall that the right-hand column to Attachment A , Section 1 is labelled "HS description". A 
headnote that precedes the IT A Attachments indicates that "Attachment A lists the HS headings or parts thereof 
to be covered". 
541 The left-most column indicates whether the HS subh eadings is an ex-out or not, while the adjacent 
column, labelled "HS Code" indicates the HS subheading at the six-digit level. 
542 The third column to Attachment A, Section 2 is labelled "Description" and includes the HS 
description for the indi cated HS subheading. 
543 The right-most column to Attachment A, Section 2  is labelled "Comments". 
544 The verb "to specify" is defined inter alia  as "1 verb intrans . Speak or treat of a matter etc. in detail; 
give details or particulars. (...)  2 verb trans . Mention or name (a thing, that) explicitly; state categorically or 
particularly." The Shorter Oxford Dictionary (2003), p. 2946. 
545 Some descriptions in Attachment B indeed make reference to HS codes.  But this seems to be the 
exception that confirms the rule. 
546 ITA, page 6.  The full text of the chapeau re ads:  "There are two attachments to the Annex. 
Attachment A lists the HS headings or parts thereof to be covered. 
Attachment B lists specific products to be covered by  an ITA wherever they are classified in the HS." WT/DS375/R 
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  with, and underlines, a broader intention that th e products specified therein are to be covered 
"wherever they are classified in the HS".   
7.397  We next consider paragraph 2 of the ITA A nnex, which addresses the implementation of the 
main obligation set forth in paragraph 2 of the ITA ma in text.   We recall that  paragraph 2 of the ITA 
Annex provides: 
"To this end, as early as possible and no later than 1 March 1997 each participant 
shall provide all other participants a docu ment containing (a) the details concerning 
how the appropriate duty treatment will be provided in its WTO schedule of 
concessions, and (b) a list of the detailed HS  headings involved for products specified 
in Attachment B.  These documents will be  reviewed and approved on a consensus 
basis and this review process shall be comp leted no later than 1 April 1997.  As soon 
as this review process has been completed for any such document, that document 
shall be submitted as a modification to the Sc hedule of the participant concerned, in 
accordance with the Decision of 26 March 1980 on Procedures for Modification and 
Rectification of Schedules of Tariff Concessions (BISD 27S/25).   
(a) The concessions to be proposed by each  participant as modifications to its 
Schedule shall bind and eliminate all customs duties and other duties and charges of any kind on information technology products as follows: 
(i) elimination of such customs duties shall take place through 
rate reductions in equal steps, except as may be otherwise agreed by 
the participants.  Unless otherwise agreed by the participants, each 
participant shall bind all tariffs on items listed in the Attachments no 
later than 1 July 1997, and shall make the first such rate reduction 
effective no later than 1 July 1997, the second such rate reduction no 
later than 1 January 1998, and the third such rate reduction no later 
than 1 January 1999, and the elimination of customs duties shall be completed effective no later than 1 January 2000.   The participants 
agree to encourage autonomous el imination of customs duties prior 
to these dates.  The reduced rate should in each stage be rounded off to the first decimal;  and 
(ii) elimination of such other duties and charges of any kind, 
within the meaning of Article II:1(b)  of the General Agreement, shall 
be completed by 1 July 1997, except as may be otherwise specified in the participant's document provided to other participants for review.  
(b) The modifications to its Schedule to be  proposed by a participant in order to 
implement its binding and elimination of customs duties on information technology 
products shall achieve this result: 
(i) in the case of the HS headings listed in Attachment A, by 
creating , where appropriate , sub-divisions in its Schedule at the 
national tariff line level; and  
(ii) in the case of the products specified in Attachment B, by 
attaching an annex to its Sc hedule including all products in  WT/DS375/R 
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  Attachment B, which is to specify the detailed HS headings for those 
products at either the national tariff line level or the HS 6-digit level. 
Each participant shall promptly modify its national tariff schedule to reflect the 
modifications it has proposed, as soon as they have entered into effect." 
7.398  In general terms, paragr aph 2 of the ITA Annex sets out a series of steps for participants to 
prepare, review, and assess the specific commitments  by the ITA participants, and to then modify 
their WTO schedules of concessions. The chapeau of paragraph 2 of the ITA Annex provides inter 
alia that "[...] each participant shall provide all othe r participants a document containing (a) the details 
concerning how the appropriate duty treatment will be provided in its WTO schedule of concessions, 
and (b) a list of the de tailed HS headings involved for pr oducts specified in Attachment B".
547 One 
dictionary definition of "involved" is "contained by implication, implicit".548 In this context, we 
understand that ITA participants were expected to pr esent a list of HS headings they considered to be 
associated with the products in Attachment B. Paragraph 2 thereafter envisaged that the proposed 
amendments to ITA participants' Schedules would go  through a "review and approval" process, before 
1 April 1997, and would then follow the steps for incorporation into each ITA participant's schedule 
through the 1980 procedures.549 Thus, ITA participants were given the responsibility of ensuring that 
their counterparts in the IT A had correctly prepared a draft modification to th eir Schedule before such 
amendments were formally submitted for cons ideration by the WTO membership at large. 
7.399  Paragraph 2(a) of the ITA Anne x then defines the manner in which ITA participants would 
eliminate the tariffs and "other duties and charges". We do not consider that these provisions bring much 
clarity to the interpretation of the EC headnote. On the other hand, paragraph 2( b) of the ITA Annex is 
of particular importance to interpre t the concessions in the Annex to the EC Schedule and to clarify the 
meaning of the EC headnote. This provision elaborat es on the "dual approach" introduced by paragraph 
2 of the ITA main text, and specifies the elements th at would need to be contained in the modifications 
that participants would make to their schedules.   
7.400  Paragraph 2(b)(i) of the ITA Annex directs partic ipants to create sub-divisions in their WTO 
Schedules reflecting their national tariff line level in  order to liberalize the HS headings listed in 
Attachment A. The parties do not dispute this appr oach. However, this approach does not inform our 
interpretation of the EC headnote.  Paragraph 2(b)( ii) of the ITA Annex, on the other hand, instructs 
participants to attach an "annex" to their resp ective WTO Schedules which shall include "all products 
in Attachment B" and "specify the detailed HS headin gs for those products at either the national tariff 
line level or the HS 6-digit level."   
7.401  On a plain reading of paragraph 2(b)(ii) of th e ITA Annex, the identification of HS Headings 
is clearly considered an important requirement in re lation to the products specified in Attachment B.  
Paragraph 2(b)(ii) explicitly gives participants th e option to specify what they consider to be the 
relevant headings, either at "the national tariff line level or the HS 6-digit level". Unlike the approach 
taken for Attachment A products, we observe that ther e is no requirement to create sub-divisions in the 
Schedule at the national tariff level to libera lize products specified in Attachment B.   
7.402  This difference in approaches must be given m eaning.  While paragraph 2(b)(ii) of the ITA 
Annex requires specification of HS headings for At tachment B products, in our view, the absence of 
any requirement to harmonize the particular subhead ings or national tariff lines to be specified for a 
                                                      
547 ITA Annex, para. 2, Chapeau. 
548 The Shorter Oxford Dictionary (2003), p. 1419. 
549 See para. 7.18 above. WT/DS375/R 
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  particular Attachment B narrative description dem onstrates that the descriptions were intended to 
govern in determining product c overage, and not the HS subhead ings or national codes that 
participants might have selected.  The products th at shall be liberalized are those "specified" in 
Attachment B, independently of the headings or cod es that participants might have considered to be 
"involved" with a particular narrative description.  Had the ITA participants intended that the tariff 
lines would define the concession, given that no HS  headings correspond fully with the Attachment B 
narrative descriptions, the requirement to create sub-di visions in the Schedule at the national tariff 
level would have been a key requirement. Instead , the provisions suggest that the ITA sought to 
liberalize a specific  set of products that all participants could agree to, embodied in Attachment B, 
even if they could not agree on where  to classify them under the HS.   
7.403  We recall the European Communities' argument th at the HS headings to be included in a 
schedule, which ITA participants would self-designa te, serve to determine the coverage of the 
concession.  Because the tariff headings (either based  on HS six-digit codes or national nomenclature) 
set the boundaries of the concession, the European  Communities argues that the codes therefore 
"exhaust" the headnote by specifying the relevant h eadings. We will now consider the implications of 
this argument in light of paragraph 2(b) of th e ITA Annex. In the alternative, the European 
Communities appeared to accept that the product descrip tions could in principle provide for a separate 
obligation, such that the product descriptions in  the ITA alone could provide the basis for the 
concession. However, the European Communities ar gues that a complainant would be required to 
demonstrate through "overwhelming evidence" that  the products did not fall under the particular 
headings that had been notified by the European Communities.
550 
7.404  Under the terms of paragraph 2(b) of the ITA Annex, one participant could have chosen the 
option to specify headings at the "HS 6-digit level"  next to a particular narrative description, while 
another participant could have chosen to identify a different subheading, or could have designated an 
eight-digit national code next to the same product description.  Such eight-digit tariff code could 
pertain to the subheading listed by other ITA pa rticipants (e.g., as a breakout incorporating the 
subheading as its first six digits), or it  could pertai n to an altogether different subheading. We observe 
that the logical consequence of the European Comm unities' "exhaustion" approach is that different 
ITA participants would have had liberalized more or fewer products, depending on which HS codes 
were included in their Attachment B-related secti on of their schedules.  Under this approach ITA 
participants could have disparate commitments,  gi ven that either HS six-digit codes or the more 
detailed national nomenclatures could be used.  An ITA participant notifying an HS six-digit code 
would be committing to fully liberalize the entire HS Subheading, whereas a ITA participant notifying 
an eight-digit code in the same subhead ing would only be committing to liberalize part of the same 
HS Subheading.  In our view, the two options prov ided under paragraph 2(b)(ii) do not allow for an 
interpretation that the codes determine the preci se concession and "exhaust" the headnote.  Permitting 
such variations in coverage w ould have allowed Members to carve -out or redefine for themselves 
what products would be covered by their concessions  under Attachment B, which would run contrary 
to the objective established in paragraph 2(b) of the main ITA text, i.e., to bind and eliminate duties 
for all those products specified in Attachment B. In our view, the European Communities' 
interpretation fails to explain how the divergen ces that would arise under the "exhaustion" theory, 
with the different codes notified by different ITA participants, would be co nsistent with the clear 
intention to cover "all products specified in Attachment B". 
7.405  The question arises why ITA participants were required to specify detailed HS headings in 
connection with Attachment B narrative descriptions, if the codes did not define the scope of the 
                                                      
550 European Communities' second written submission, para. 19; European Communities' response to 
question 1 from the United States  during the second meeting.  WT/DS375/R 
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  obligation. We find further support for our interp retation of the relevance of the specified HS 
headings or national codes in paragra ph 5 of the ITA Annex, which provides: 
"Participants shall meet as often as ne cessary and no later than 30 September 1997 to 
consider any divergence among them in classifying  information technology products, 
beginning with the products specified in Attachment B.  Participants agree on the 
common objective  of achieving, where appropriate, a common classification for these 
products within existing HS nomenclature , giving consideration to interpretations and 
rulings of the Customs Co-operation Council (also known as the World Customs 
Organization or "WCO").  In any instance in which a divergence in classification 
remains, participants will c onsider whether a joint suggestion could be made to the 
WCO with regard to updating existing HS nomenclature or resolving divergence in 
interpretation of the HS nomenclature ." (emphasis added) 
7.406  This provision directs ("shall") participants to meet following the modifications to their 
Schedules to consider divergences in classification, beginning with, as stated, divergences related to 
products specified in Attachment B.  It is appare nt that the ITA negotiators foresaw different ITA 
participants classifying some of the covered produc ts in different ways, and established a mechanism 
for trying to reduce such divergences in classification.
551  Paragraph 5 of the ITA Annex confirms that 
ITA participants could not agree on the appropriate HS classification  of some of the IT products they 
wanted to liberalize, even if they agreed on wh at the description of those products was (hence their 
inclusion in Attachment B).552 These included products in Attachment B, plus those identified in 
Attachment A, Section 2, having the comment "[f]or Attachment B". 
7.407  If we again turn to the "exhaustion" interpretation by the European Communities, we note 
that, had the HS codes notified by each ITA particip ant been intended to have the effect of defining 
the scope of the commitments undertaken by that IT A participant (therefore "exhausting" them), the 
meetings stipulated in paragraph 5 would essentia lly involve a renegotiation of commitments. Yet, 
there is no reference in this pa ragraph to amending the schedules of concessions as a result of the 
discussions nor to considering the tariff treatment of Attachment B products in the participants' 
schedules. On the contrary, the emphasis throughout the entire paragraph is on the "HS classification" 
of those products. Paragraph 5 even encourages par ticipants to suggest updates of the nomenclature to 
the WCO, which clearly cannot modify the concessi ons in participant's schedules. Moreover, tariff 
treatment is not explicitly nor implicitly mentioned in this paragraph.  In the Panel's view, therefore, it 
is clear that ITA paragraph 5 is concerned with harmonizing classification practices amongst 
participants, and is not concerned with renegotiating tariff concessions.553 As such, it is inconsistent 
with the European Communities' "exhaustion" appr oach, and informs our view that the scope of 
Attachment B-related commitments is determined by  the product descriptions and not by the notified 
tariff item numbers.   
                                                      
551 In this respect, we note that ITA participants no tified different HS subheadin gs or codes within their 
domestic nomenclatures in connection with the Attachment B narrative descriptions that were incorporated into 
their Schedules.  The Schedules of other ITA partic ipants are discussed in further detail in paras 7.424 et seq . 
below. 
552 The European Communities holds a similar view, having stated that Attachment B includes some 
products "on the classification of which the participants  could not, at least imme diately, agree but did not 
oppose their inclusion" (European Commun ities' first written subm ission, para. 18). 
553 We note as well that, under the exhaustion theory by the European Communities, ITA participants 
would have reasonably been expected to have an interest in reviewing not only the HS headings notified, but 
also the classification practice concer ned prior to approving the draft ITA related amendments.  It would have 
been otherwise impossible to determine whether "all" products specified in Attachment B had been fully 
liberalized as mandated by paragraph 2 of the ITA.  We observe that there is no su ch a provision in the ITA. WT/DS375/R 
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  7.408  Although there are several provisions in the ITA which remain unaddressed in our analysis, 
we observe that we have covered all those raised  by the parties in their arguments.  We do not 
consider it necessary to address the remaining provisions , as they do not appear to be relevant to our 
task.   
7.409  Taking into account our analysis of the provisions in the ITA so far, and looking at them in a 
holistic manner, the Panel is of the view that the drafters of the ITA considered that the traditional 
approach of listing HS codes was inadequate to address the full scope of the product coverage that 
was intended by participants to the ITA, in par ticular given the then prevailing divergences in the 
classification of products in and for Attachment  B. Consequently, ITA participants agreed to 
implement their commitments though a "dual" appro ach that included binding and eliminating duties 
for both: (i) products classified or classifiable in HS  codes listed in Attachment A, and (ii) products 
specified in Attachment B. While the appro ach under Attachment A is straightforward and 
"traditional" in WTO terms, ITA pa rticipants were directed under Attachment B to eliminate duties on 
all products "specified' in that Attachment. This approach was taken because ITA participants could 
not agree on precise headings for the products identified through the narrative descriptions in 
Attachment B. Since the narrative descriptions mu st determine the scope of coverage of those 
products, duty-free treatment must be extended to pr oducts specified in Attachment B "wherever they 
are classified".  Otherwise, ITA participants w ould have ended up with diverging product coverage, 
which runs contrary to the intent to provide d duty-free coverage for specified "products" in 
Attachment B, and not headings of tariff lines unde r which products are classified.  We explained that, 
if the "exhaustion" interpretation were correct, the potentially significant differentiation in the scope 
of commitments undertaken by ITA participants would be a significant feature of ITA-related 
concessions. An intention to create such a differen tiated approach to commitments should be clearly 
evident from the language in the ITA. However, it is not. We also do not see a basis to conclude that a 
unique or elevated burden of proof would be requir ed to demonstrate that a product fell within the 
scope of a particular concession that is defined by the narrative description. 
7.410  Paragraph 3 of the ITA Annex provides an avenue  to negotiate the inclusion of "additional" 
products. However, the determination of whether a product is in fact currently covered, would involve 
an assessment of the existing concession pursuant to  the ITA, including the narrative descriptions in 
and for Attachment B. We recall again our view that, ITA negotiators foresaw different ITA 
participants classifying some of the covered produc ts in different ways, and established a mechanism 
for trying to reduce such divergences in classification. 
7.411  The Panel, therefore, considers that the ITA provisions discussed above inform our 
preliminary view based on the text of the headnote that products described in or for Attachment B 
must be granted duty-free treatment irrespective of wh ere they are classified in the EC Schedule.  In 
other words, the product descriptions in and for Attach ment B should be consid ered and interpreted in 
determining which products would receive duty-free treatment. 
The terms of the EC headnote and Annex to th e EC Schedule considered in the context of 
other sections of the EC Schedule  
7.412  In their discussions regarding the meaning of th e EC headnote and the concessions at issue in 
this dispute, the complainants have discussed several aspects of the EC Schedule, including 
modifications made to the Annex to the EC Sche dule pertaining to the narrative descriptions for 
"Computers" and STBCs, in an effort to explain thei r interpretation of the EC headnote, in the context 
of the provisions of the ITA.  The complainants consider these actions by the European Communities 
confirm their view that the tariff item numbers liste d in the Annex to the EC Schedule are of limited 
relevance to determine the scope of coverage of the narrative descriptions.  We consider these aspects  WT/DS375/R 
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  of the EC Schedule below, in view of our earlie r assessment of the EC headnote and the ITA as 
context, and in view of the parties' discussions on the matter, to see whether they shed light on our 
understanding of the EC headnote. 
Do the modifications made to certain ITA-related concessions in the EC Schedule 
inform our interpretation on the relevance of the tariff item numbers? 
7.413  The complainants have discussed two particular  modifications made to the EC Schedule in 
connection with ITA-related commitments.  On e included a 1998 communication of the tariff item 
numbers listed in the Annex to the EC Schedule via G/MA/TAR/RS/47 in relation to the narrative 
descriptions for "Computers etc." and "Network equipment" (the "1998 notification").
554 The 
complainants additionally referred to the European  Communities' 2000 notification to include tariff 
item number 8528 12 91 next to the STBCs narrativ e description in the Annex to the EC Schedule 
(the "2000 notification").555   
Arguments of the parties 
7.414  In response to a question from the Panel556, the European Communities  argued that 
communication of an additional code in 2000 in c onnection with the narrative description for STBCs, 
supports its view that the codes next to the narra tive description indeed exhaust the EC headnote. It 
argues that the codes notified by the European Communities in 1997 and then reviewed in 1998 were 
accepted by consensus and certified in accordance w ith the procedures of paragraph 2 of the ITA 
Annex and paragraph 2 of the ITA Implementing Deci sion, and exhausted the EC's commitment with 
respect to set top boxes which have a communicati on function. However, it argues, the code notified 
in 2000 (tariff item number 8528 12 91 (now 8528 71 13)) served to "enlarge" its commitment for set top boxes which have a communication function. It notes that through a communication notified along with the modification, the European Communities ef fectively recognized that products classifiable in 
this new code would also qualify for duty-free treatment.
557 The European Communities argues, 
however, that a parallel cannot be drawn between its 2000 notification  and a separate 1998 
notification (also referred to by the Panel in qu estion 109 to the European Communities) made in 
respect of "Computers etc." and "Network equipmen t". It argues that the 1998 notification resulted 
from the European Communities' impl ementation of the classification approach reflected in the WCO 
opinion on the classification of PCTV products.558 Under this modification, the European 
Communities argues that it harmonized its classi fication approach for multimedia computers 
(computers with television and other multimedia capabilities such as audio, video, 
telecommunication) under HS heading 8471, instead of HS headings 8471, 8528 and 8543, as had been done formerly. To do so, the European Comm unities argues that it transferred classification of 
the products (with duty rates unchanged) to the ne w heading, as specified by the WCO. In its view, 
this modification (reflected in the 1998 notifica tion) did not extend duty-free treatment available 
                                                     
 
554 Complainants' responses to Panel question No. 109; United States' comment to European 
Communities' response to question by the Panel No. 109. 
555 United States' first written submission, para 45 (Exhibit US-26); Japan's first written submission, 
para. 352; Chinese Taipei's first written submission, para. 361. 
556 European Communities' response to Panel question No. 109. 
557 European Communities' response to Panel question No. 109.  The European Communities argues 
that the exhaustion of the commitment on STBCs in 1997 and the communication of a new code for another 
group of products in 2000 are thus two independent processes which do not affect one another. 
558 European Communities' response to Panel question No. 109; WCO Classification Opinion 
concerning the classification of PCTV in subheading 8471.49, as discussed and adopted by the HS Committee 
during its 19th and 22nd sessions (Exhibit EC-125). WT/DS375/R 
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  under the ITA to a new group of products, but were  merely consequential changes resulting from a 
reclassification decision.
559 
7.415  The complainants dispute the European Communiti es characterization of these two 
modifications to the EC Schedule. Regardless of the fact that one change was brought about by 
decisions of its own customs authorities, whereas the other resulted from the implementation of a 
WCO classification opinion, the United States  argues that both reflect "classification" changes that 
are incompatible with the European Communities'  exhaustion theory. The United States argues that 
the 2000 notification can only be understood to me an that products included in tariff item number 
8528 12 91 were among the pr oducts meeting the description of STBCs. However, it argues, if the 
headnote was "exhausted", there would be no reaso n for the European Communities to modify the 
codes listed in the table.560 
7.416  Japan  considers the European Communities' argum ent that it "enlarged" its concession for 
STBCs to be inconsistent with the fact that c oncessions made in the WTO do not change despite 
customs classifications changes. Japan argues that such changes cannot modify the scope of the WTO 
concessions as this would fundamentally undermine the stability and predictability of the rights and 
obligations of Members under the WTO  Agreement.561  
7.417  Chinese Taipei  considers the statement by the European Communities in the 2000  
notification that it had "decided to join some other IT A participants in classifying certain types of ITA 
set-top boxes under HS sub-heading 8528 12" to be  inconsistent with the exhaustion theory.562  
Chinese Taipei submits that procedures under paragr aph 5 of the ITA are not aimed at "enlarging" 
ITA commitments, but rather at removing classifica tion divergences for products already covered by 
existing ITA concessions. Had the European Commun ities intended to unilaterally "enlarge" its 
commitment, it argues, the European Communities would not have notified the modification to its Schedule related to ITA products, nor specified that the corresponding codes to Attachment B 
description of "set-top boxes" had been replaced.  Instead, it argues, the European Communities could 
have simply modified its national tariff code  to implement its obligations under the ITA.
563 
Consideration by the Panel 
7.418  The parties' discussion regarding the 1998 and 2000 notifications centre on documents issued 
in conjunction with chang es made to the EC Schedule.564   
                                                      
559 European Communities' response to Panel question No. 109. 
560 United States' comment to European Communities' response to Panel question No. 109 (The United 
States notes that, in both cases, the European Communities maintained the duty-free treatment for the product in 
question, notwithstanding the fact that the subheadings in which it considered the product classified were not 
originally included in the Annex to the EC Schedule). 
561 Japan's response to Panel question No. 109; Japan's comment to European Communities' response to 
Panel question No. 109. 
562 Chinese Taipei's comment to European Communities' response to Panel question No. 109. 
563 Chinese Taipei's comment to European Communities' response to Panel question No. 109. 
564 Although the parties did not themselves identify th ese documents in the cont ext of discussing the 
Annex to the EC Schedule, the complainants raised the is sue of the 2000 notification in the context of discussing 
their claims concerning STBCs, and they discussed the 1998 notification in response to a question put to the 
European Communities by the Panel.  The explanations in the documents discussed by the parties in connection 
with the 1998 notification were not incorporated into the EC Schedule at the time of certification (see document WT/Let/261).  Practically all the contents of the 2000 notification, including the explanations by the European 
Communities which have been referred to by the par ties, were certified on 19 March 2010 in document  WT/DS375/R 
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  7.419  At the time of the 1998 notification made inter alia  in respect of "Computers etc." and 
"Network equipment", the European Communities circulated the following communication, in 
document G/MA/TAR/RS/47 of 10 February 1998: 
"I attach herewith a notice concerning r ectifications and modifications to our 
Schedule CXL related to ITA products (5 pages). ... 
RECTIFICATION AND MODIFICATIONS OF SCHEDULES 
SCHEDULE CXL - EUROPEAN COMMUNITIES 
INFORMATION TECHNOLOGY AGREEMENT (G/MA/TAR/RS16) 
CORRIGENDUM 
[...]  Following a review of the documents s ubmitted under G/MA/TAR/RS/16 of 2 April 
to incorporate in Schedule CXL the commitments under the Information Technology 
Agreement, the attached corrections should be made.  [...]  4. The World Customs Organisation has debated the classification of multimedia 
personal computers and the general view, wh ich prevailed, was that such products no 
matter what their principal function are to  be classified within 8471. The EC has 
implemented this classification opinion by transferring the products concerned, together with their accompanying rates of duty, from 8528 and 8543 to 8471. The consequential changes for the ITA Sc hedule means that the all references 
8471.30.00, 8471.41.90, 8471.49.90, 8471.50, 8528.12.10, 8528.13.10 and 
8543.89.17 should be deleted a nd replaced by the following: 
... 5. As a result of the above the following changes should be made to the tariff references against product descriptions in Attachment B: 
Computers etc. Replace by following refere nce: 8471.10.90 (unchanged), 8471 30 10, 
8471.30.91, 8471.30.99, 8471.41.30, 8471.41.91, 8471.41.99, 8471.49.30, 
8471.49.91, 8471.49.99, 8471.50.30, 8471.50.91, 8471.50.99 
Network equipment replace 8471.50.90 by 8471.50.99"
565 (footnotes omitted) 
7.420  At the time of the 2000 modification made in respect of STBCs, the European Communities 
circulated the following communication, in document G/MA/TAR/RS/74 of 15 December 2000: 
"I attach herewith a notice concerning r ectifications and modifications to our 
Schedule CXL related to ITA products.  
                                                                                                                                                                    
 
WT/Let/667.  We also note the Appellate Body's statement that "nothing in the DSU limits the faculty of a panel 
freely to use arguments submitted by any of the parties -- or to develop its own legal reasoning -- to support its 
own findings and conclusions on the matter under its consideration."  Appellate Body Report on EC - Hormones , para. 156.  See also Appellate Body Report on Korea – Dairy , para. 138; Panel Report on 
Egypt – Steel Rebar , para. 7.58.  We thus consider it appropriate to address the parties' comments as we assess 
the role of the CN codes that are listed in the Annex to the EC Schedule.   
565 Document G/MA/TAR/RS/47 (10 February 1998), certified in document WT/Let/261 
(25 November 1998). WT/DS375/R 
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  [...] 
 
RECTIFICATION AND MODIFICATIONS OF SCHEDULES 
SCHEDULE CXL - EUROPEAN COMMUNITIES 
INFORMATION TECHNOLOGY AGREEMENT (G/MA/TAR/RS16) 
 When the European Communities notified th eir commitments under the Information 
Technology Agreement in doc. G/MA/TAR/RS/16 of 2 April 1997, they indicated 
that the EC would classify "set-top box es", an Attachment B product, under the 
following tariff lines: 8517 50 90, 8517 80 90 and 8525 20 99, all duty-free from 1 
January 2000.  Customs experts from ITA participants have met several times to discuss 
classification divergences on ITA products, as mandated by paragraph 5 of the Annex 
to the Ministerial Declaration of 13 D ecember 1996. Their recommendations to the 
Committee of Participants to the Agreem ent are contained in doc. G/IT/14 of 6 
September 2000.   As indicated in that document, the Europ ean Communities have decided to join some 
other ITA participants in classifying certain types of ITA set-top boxes under HS sub-
heading 8528 12. The European Communities have created a new tariff line for such 
set-top boxes, as follows:   
  Base rate Final rate Implementation 
8528 12 91 ------- Apparatus with a 
microprocessor-based device 
incorporating a modem for gaining access to the Internet, 
and having a function of 
interactive information exchange, capable of receiving 
television signals ("Set-top 
boxes with a communication function") New line 
 0.0 2000 
 
 
This change took effect from 1 October 2000. It is without prejudice to other possible 
changes in ITA product classification that may be necessary once the Committee of Participants to the Agreement has comple ted its examination of the recommendations 
from customs experts.  Consequently, the tariff references shown ag ainst product descripti ons in Attachment 
B of the ITA Schedule of the European Communities should be modified as follows: 
 Set-top boxes: Replace by following refe rence: 8517.50.90 (unchanged), 8517.80.90 
(unchanged), 8525.20.99 (unchanged), 8528.12.91 (new) ."
566 (footnotes omitted, 
emphasis original) 
 
                                                      
566 Document G/MA/TAR/RS/74 (15 December 2000)  (Exhibit US-26), certif ied in WT/Let/667 
(19 March 2010).  WT/DS375/R 
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  7.421  Both the complainants and the European  Communities have put forward competing 
interpretations of the motivations and effects of these modifications which, not surprisingly, support 
their respective positions regarding the key interpretative issue described above.   
7.422  Although the European Communities claims th at the purposes of these two modifications 
were different – arguing that the 1998 notification was undertaken to reflect a ch ange of classification 
practice endorsed by the WCO, whereas the 2000 notif ication was undertaken to unilaterally "enlarge" 
commitments – the Panel is struck by the similar ity in the explanations and language in the two 
notifications themselves. While the European Communities has explained to us that its 2000 
notification was a unilateral expansion of commitment s, we find little evidence of this in the words 
used to describe the change at the time that it was made. We not e that the European Communities 
emphasized "classification" as the basis for both of the modifications.   
7.423  In addition, the 1998 amendment appears to us to undermine the "exhaustion" approach 
proposed by the European Communities, under wh ich HS or national codes notified exhaust 
obligations.  It is apparent fro m the 1998 amendment that views on th e appropriate classification of 
products can evolve over time.  This may occur multilaterally (for example by agreement at the 
WCO), but may also occur as a result of plurilatera l discussions where a number of countries agree to 
a harmonized approach to classifying particular goods, or indeed unilaterally by individual WTO 
Members.  It could even result from discussions under paragraph 5 of the ITA Annex where clarifying the classification of an Attachment B product could eventually lead to a formal agreement to modify the 
schedules of all ITA participants.  One consequence is that, as views on proper classification evolve, it 
is possible that the codes that were notified by  a particular WTO Member as corresponding to a 
particular narrative description would no longer be considered to apply to the products that were 
intended to be covered by that narrative descrip tion.  Despite this, the ITA does not expressly 
envisage or require an ITA participant to update its Schedule to take account of classification changes 
that may affect the codes listed next to the narra tive product descriptions of products in or for 
Attachment B.  While the European Communities did, in  fact, modify its codes in this particular case, 
we are unaware of any obligation on the Europ ean Communities to do so.  Had the European 
Communities not modified the tariff item numbers,  under the "exhaustion" approach, the European 
Communities may no longer have had an obligation to extend duty-free treatment to products that the 
European Communities itself would admit should recei ve duty-free treatment pursuant to its original 
obligations undertaken in implementing Attachment B. 
Do the WTO Schedules of concessions of other IT A participants inform our interpretation on 
the relevance of the tariff item numbers?  
7.424  In response to a question from the Panel567, the United States and Chinese Taipei explained 
that their respective WTO Schedules of concessions incl ude either "identical" or "virtually identical" 
headnotes to the EC headnote. Japan explained that  its WTO Schedule contains a "note corresponding 
to" the EC headnote.568 The complainants have explained that headnotes in ITA participants' WTO 
Schedules serve to ensure that Members would provide duty-free treatment on all products described 
                                                      
567 Complainants' response to Panel question No. 9. 
568 Japan submits that the note in its Schedule is "not identical, but are almost the same", but considers 
that the note functions the same as the EC headnote, notably, indicating "how to eliminate customs duties in respect of the products provided 'for' and 'in' Attach ment B,  with the condition 'wherever the products are 
classified'"  (Japan's response to Panel question No. 9). WT/DS375/R 
WT/DS376/R WT/DS377/R 
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  in or for Attachment B, regardless of which codes are associated with those descriptions, or even if no 
codes were associated with the descripti on (as in the case of Japan's WTO Schedule).
569   
7.425  We recall that the Appellate Body found in EC – Computer Equipment that the terms of the 
treaty being interpreted when dealing with a ta riff concession in a schedule are those of the WTO 
Agreement.570  It subsequently found in EC – Chicken Cuts  that other Members' Schedules of 
concessions could form part of the "broader cont ext" to interpret a Member's tariff concessions.571  
We will therefore consider below whether the schedul es of other WTO Members, and in particular the 
schedules of other ITA participants, may shed furt her light on our understanding of the EC headnote. 
7.426  The Panel begins by observing that the ITA-related concessions of some ITA participants are 
included in "rectifications and modifications" to  their Uruguay Round Schedules, whereas others are 
included in Protocols of Accession.572  It is apparent from these documents that ITA participants 
attempted to standardize the format that would be  used to incorporate th ese concessions into their 
Schedules, as practically all of them include specific sections for Attachment A-related and 
Attachment B-related concessions, as well as a "sta ging matrix" providing a detailed description of 
the maximum duties that would be applicable for eac h of the relevant tariff lines, per year, until their 
final elimination.573  Attachment A concessions are normally presented using a format that follows, to 
a large extent, the one used by most Members in their Uruguay Round Schedules, and consolidates in a single list the HS headings listed under both Sections 1 and 2 of Attachment A.
574  Similarly,  all ITA 
participants included in their schedule an annex or  section listing products identified as "in or for" 
Attachment B, with some relatively minor variations.575 
7.427  Counting the EC-27 as one, there are 35 Schedules of ITA participants in the English 
language576, seven in Spanish577 and one in French.578  The panel observes that these schedules share 
                                                      
569 See, for instance, United States' comments on European Communities' response to question Panel 
question Nos. 100 and 103, and United States' questions No. 1-3, para. 5; Japan's response to Panel question 
No. 100. 
570 Appellate Body Report on EC – Computer Equipment , para. 84.   
571 Appellate Body Report on EC – Chicken Cuts , para. 193. We note that the European Communities 
has recognized in its own arguments that the Schedules of concession of other WTO Members that were ITA 
participants may serve as "broader context" to interpre t the concessions as contained in the Annex to the EC 
Schedule (European Communities' first writ ten submission, paras. 142 and 242). 
572 ITA participants reflecting concessions in their Protocols of Accession (P.A.) include Albania, 
China, Croatia, Georgia, Jordan, Moldova, Oman, Saudi  Arabia, Chinese Taipei, Ukraine, and Viet Nam. 
573 The Panel recalls from its assessment of the ITA th at two of these sections appear to have been 
foreseen in Paragraph 2(b) of the ITA Annex.  It should be noted, in addition, that Japan's ITA-related 
modification in WT/Let/138 (17 April 1994) does not conform to this description. 
574 This is the case of ITA-related concessions incorporated through the 1980 procedures.  It should, 
however, be noted that the Protocols of Accession of ITA participants merged ITA- with their non-ITA-related 
concessions, resulting in Attachment A concessions appearing undistinguishable from the "traditional" tariff concessions determined under participan ts' respective accession processes.   
575 The Panel notes that at least one schedule (Egypt's ITA-related modification in WT/Let/459) 
appears to be missing one of the product descriptions ("Apparatus for stripping or cleaning semiconductor wafers" that appears in ex 8456 91 of Attachment A, Section 2).  Other Members' Schedules (Korea's in 
WT/Let/249, Egypt's in WT/Let/459, Israel's in WT/Le t/174, Jordan's Protocol of Accession and Viet Nam's 
Protocol of Accession) do not incorporate the change s concerning FPDs (i.e. the addition of the words " 
devices" and "vacuum-fluorescence").  Fi nally, at least one Schedule (the Un ited States') incorporates product 
descriptions (eight in total) that are not expressly sp ecified in Attachment B or taken from Attachment A, 
Section 2. 
576 The following Members used the English language to reflect their ITA-related concessions into their 
schedules: Albania (P.A.); Australia (WT/Let/248); Bahrain (WT/Let/488); Canada (WT/Let/158); China  WT/DS375/R 
 WT/DS376/R 
 WT/DS377/R 
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  many common features and could be grouped accordi ng to certain traits, including the language used 
in preparing them, whether they included a headnote and whether they listed tariff headings next to 
narrative descriptions.  Thirty of the 35 Schedules in  the English language incorporate a headnote that 
is identical to the EC headnote, and list tariff codes next to the product descriptions that appear below 
the headnote.
579  Most of these Schedules also have in co mmon the fact that they share the same 
product descriptions in the Attachment B-related sections.  The seven WTO Schedules in Spanish 
include identical headnotes, which the Panel considers to be equiva lent to those in the English 
version580, each of which lists tariff codes next to th e product descriptions.  Taking into account the 
above, in total, 38 of 43 Schedules of ITA participan ts either contain exactly the same language as the 
EC headnote, or language whic h is equivalent to it.   
7.428  Although the headnote was not explicitly provided fo r in the ITA, this substantial uniformity 
in approach with regard to the inclusion of a hea dnote and as to its terms, strongly suggests that the 
headnote was envisaged to play an important role in  implementing the ITA.  The Panel will return to 
this point to below.  We will now turn to examine the schedules of participants that differ somewhat 
from the EC Schedule. 
7.429  As mentioned above, Japan's Schedule contains  a "note" that is different from the EC 
headnote that appears in the Annex to the EC Sche dule and the headnotes that were included in the 
WTO Schedules of other participants.  Japan's Schedule contains a note that reads as follows: 
                                                                                                                                                                     
(P.A.); Croatia (P.A.); Egypt (WT/Let/459); Europe an Communities (WT/Let/156); Georgia (P.A.); Hong 
Kong, China (WT/Let/160); Iceland (WT/Let/159); India (WT/Let/181); Indonesia (WT/Let/157); Israel 
(WT/Let/174); Japan (WT/Let/138); Jordan (P.A.); Ko rea (WT/Let/249); Kyrgyz Republic (P.A.); Macao, 
China (WT/Let/177); Malaysia (WT/Let/176); Maur itius (WT/Let/334); Moldova (P.A.9; New Zealand 
(WT/Let/295); Norway (WT/ Let/153); Oman (P.A.); Philippines (WT/Le t/303); Saudi Arabia (P.A.); Chinese 
Taipei (P.A.); Singapore (WT/Let/175); Thailand (WT/Le t/250); Turkey (WT/Let/173); Ukraine (P.A.); United 
Arab Emirates (WT/Let/585); United Stat es (WT/Let/182); and Viet Nam (P.A.). 
577 The following Members used the Spanish language to reflect their ITA-related concessions into 
their schedules: Costa Rica (WT/Let/196); Dominican Republic (WT/Let/557); El Salvador (G/MA/TAR/RS/45+Add.1, not certif ied); Guatemala (WT/Let/544); Hond uras (WT/Let/511); Nicaragua 
(WT/Let/512); and Peru (WT/Let/640). 
578 Switzerland/Liechtenstein used the French language  to reflect their ITA-related concessions in their 
joint schedule (WT/Let/253). 
579 These are: Albania; Australia; Canada; China; Cr oatia; Egypt; Georgia; Hong Kong, China; Iceland; 
India; Indonesia; Israel; Jordan; Kyrgyz Republic; M acao, China; Malaysia; Mauritiu s; Moldova; New Zealand; 
Norway; Oman; Philippines; Saudi Arabia; Chinese Taipe i; Singapore; Thailand; Turkey; Ukraine; United Arab 
Emirates; and Viet Nam.  Two of the other Schedules in English have similar headnotes to the EC headnote, with minor variations.  For example, the Schedule of the United States employs the word "on" instead of "in and 
for" before the reference to "Attachment B" (See document WT/Let/182).  Similarly, Bahrain's Schedule does 
not contain the words "to the Annex" between "Attachment B" and "to the Ministerial Declaration on Trade in Information Technology Products
" (See document WT/Let/488). 
580 The headnote appears in those Members' WTO Schedules drafted in Spanish as follows: 
"Con respecto a cualquier producto designado en el Apéndice B de la Declaración Ministerial sobre el Comercio de Productos de Tecnología de la Información (WT/MIN(96)/16), o 
designado para dicho Apéndice, en la medida en que no esté específicamente previsto en esta 
Lista, los derechos de aduana aplicables a ese producto, así como los demás derechos o cargas 
de cualquier clase (en el sentido del apartado b) del párrafo 1 del artículo II del Acuerdo 
General sobre Aranceles Aduaneros y Comercio de 1994) quedarán consolidados y eliminados 
de conformidad con lo enunciado en el apartado a) del párrafo 2 del Anexo a la Declaración, cualquiera sea la clasificación en que figure el producto." 
See, for example, Costa Rica's modification in WT/Let/196. WT/DS375/R 
WT/DS376/R WT/DS377/R 
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  "Notwithstanding the provision of paragraph 3 of the Notes to the Schedule, the tariff 
reductions from the bound rate as of 1 January 1997 to free in respect of the products in Lists III and IV, wherever they are classified , shall be implemented in three equal 
rate reductions as follows: (a) The first reduction shall be impl emented on the date 
that this instrument becomes effec tive; (b) The second reduction shall be 
implemented on 1 January 1998; (c) The th ird reduction shall be implemented on 1 
January 1999." (emphasis added)
581 
7.430  "List IV" reproduces the product descriptions specified in Attachment B, without assigning 
any tariff code next to them.582  
7.431  Japan's Schedule thus contains language that is  very similar to the reference "wherever the 
product is classified" in the EC headnote.  In add ition, the product descriptions "for Attachment B" 
are reproduced in List IV.  Based on these two elements, Japan's Schedule may be understood as 
providing duty-free access to products "in or for Attachment B" irrespective of where they are 
classified.583 
7.432  In the Panel's view the terms of Japan's "Note"  clearly reflects the fact that Japan did not 
consider that the inclusion of HS codes was necessary in order to implement ITA Attachment B commitments.  To this extent, it lends support to  the view that the scope of commitments is 
determined by the narrative descripti ons of products "wherever they are classified" rather than by the 
HS codes.  However the Panel is mindful that Japan took a unique approach to scheduling its 
Attachment B-related commitments.  Moreover, Japan's  Schedule is not the subject of this dispute.  
Accordingly, the Panel chooses not to attach much weight to it beyond noting that in significant 
respects it mirrors key aspects of the headnotes appear ing in the vast majority of ITA participants 
schedules. 
7.433  We note that two Schedules (those of Korea and Switzerland/Liechtenstein, jointly)
584 lack a 
"headnote" or any provision that contains language  equivalent to the phrase "wherever the product is 
classified". The Attachment B-related sections of  these Members' schedules include only a table 
listing the product descriptions and HS codes that  the participants chose to notify during the 
implementation period.   
7.434  We do not have before us sufficient information to enable us to understand the basis for not 
including a headnote, as the product descriptions la ck any indication of th e applicable bound duty, 
other duties and charges or any relevant term or  conditions on the concession, making it difficult to 
                                                      
581 Japan's ITA-related concessions are reflected in document WT/Let/138 (17 April 1994). 
582 Japan's ITA-related concessions, document WT/Let/138 (17 April 1994). 
583 As another difference, the Panel observes that the phrase "to the extent not specifically provided for 
in this Schedule" is absent in Japan's note.  As the Pane l discussed above, we determin ed this phrase to refer to 
the requirement to eliminat e customs duties and charges on products "i n or for" Attachment B in accordance 
with the ITA regardless of whether they are already covered by existing commitments in the relevant WTO 
Schedule.  Thus, products in or for Attachment B  would now be subject to duty-free, ITA-related, tariff 
obligations, notwithstanding any overlap in product coverage.  Despite the absence of this phrase from Japan's 
Schedule (and ITA-related commitments),  the Panel considers that Note 3 in  the Japanese Schedule (see above) 
addresses this same objective through the language "the  tariff reductions from the bound rate as of 1 January 
1997 to free in respect of the products in Lists III and IV, wherever they are classified , shall be implemented".  
Despite this difference in text between the note appear ing in Japan's Schedule and the EC headnote, the Panel 
finds no basis to suggest that the commitment to extend duty-free treatment to products wherever classified is any different. 
584 See Schedules of Korea (WT/Let/249) and Switzerland/Liechtenstein (WT/Let/253).  WT/DS375/R 
 WT/DS376/R 
 WT/DS377/R 
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  understand on the face of the Schedule what is th e obligation assumed by the Member in respect of 
those products.  This unquestionably creates difficult y in interpreting these two Schedules as concerns 
the product descriptions in or for Attachment B that ar e included.  In our view, this underlines the fact 
that without a headnote, key elements of the Attach ment B-related concessions, in particular the tariff 
treatment of those products or the relations hip with the ITA, would remain unaddressed. 
7.435  Finally, the Panel notes the assertion put forth by  the European Communities that a number of 
WTO Members participating in the ITA would nec essarily have "either made commitments without 
there being an obligation pursuant to the ITA and/ or there are a number of WTO breaches because of 
the differences in classification" if the compla inants' position regarding the predominance of the 
product descriptions in the Annex to the EC Sc hedule were accepted.  As discussed above, the 
headnote refers to the product descr iptions "in and for" Attachment B wherever  they are classified in 
the ITA participant's schedule.  For this reason, we  are not convinced that differences in classification 
would necessarily result in breaches in concessions in a Schedule concerning a product description "in 
or for" Attachment B .  We also consider that the HS headings and national codes listed by ITA 
participants in their Attachment B-related sections  were intended to facilitate the implementation of 
those concessions, including inter alia  the consultations to be held by ITA participants pursuant to 
paragraph 5 of the ITA Annex for the purpose of eliminating divergences in classification and, possibly, to assist participants in phasing out th e applicable duties.  However, as the terms of 
reference of this Panel do not go beyond specific terms in the EC Schedule, we will not elaborate 
further on this issue.  
7.436  Based on the foregoing, the Panel considers that the substantial uniformity in approach with 
regard to the inclusion of a relatively standardized  headnote in the schedules of ITA participants is 
fully consistent with the notion that the headnotes were meant to play an important role in interpreting the Attachment B-related concessions.  However, we consider that other participants' schedules do not 
provide much guidance in interpreting the term s of the EC headnote, beyond highlighting the 
importance of the headnotes in determining the co rresponding tariff treatment for products in or for 
Attachment B.   
What is the relevance of the HS to our interpre tation of the concession in the Annex to the EC 
Schedule?  
Arguments of the parties 
7.437  The complainants  argue that HS interpretative materials, including HS section and chapter 
notes, HSENs and GIRs are not relevant context for interpreting the concessions at issue that arise 
under the Annex to the EC Schedule.585  With respect to products descr ibed in or for Attachment B, 
the complainants note that the duty-free obligation ex tends to these products "wherever ... classified."  
Furthermore, the complainants note that paragraph 2(b) of the ITA refers to "products specified  in 
Attachment B" (emphasis added), while the reference to products "classified (or classifiable) with 
Harmonized System (1996) ("HS") headings" in paragr aph 2(a) of the ITA, pe rtains to coverage under 
Attachment A.586  Based on this distinction, they argue that HS materials, while relevant to 
interpretation of concessions arising pursuant to Attachment A587, are not relevant to interpret 
                                                      
585 Complainants' responses to Panel question No. 104. 
586 United States' response to Panel question No. 104; Japan's first written submission, para. 16; Japan's 
response to Panel question Nos. 20 and 21; Chinese Taipei's response to Panel question No. 104. 
587 The United States acknowledges that prior Appella te Body reports indicate that the HS materials 
may be relevant to interpret HS-derived language in the description of a tariff concession in a Member's 
Schedule where the drafters relied on HS terminology or expressly provided for the application of HS WT/DS375/R 
WT/DS376/R WT/DS377/R 
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  narrative descriptions, that were incorporated into the Annex to the EC Schedule pursuant to 
Attachment B.  Japan  submits that "the very point of the c oncessions made pursuant to Attachment B 
was to use product descriptions in those areas wh ere the existing headings provided by the HS 
nomenclature were deemed insufficient."
588 
7.438  The European Communities  considers that the HS1996 interpretive materials are relevant to 
the assessment of the concessions in  the Annex to its Schedule.  It argues that the language in 
paragraph 2 of the ITA Annex, which refers to "a  list of the detailed HS headings involved for 
products specified in Attachment B", provides a basi s to consider these materials in its assessment of 
whether the measures at issue for flat pa nel display devices are WTO-inconsistent.589  In addition, the 
European Communities argues that these materials are also relevant for the Panel's analysis of 
concessions reached pursuant to Attachment A.590   
Consideration by the Panel 
7.439  The Appellate Body confirmed in EC – Chicken Cuts  that the HS constituted relevant 
"context" to interpret a Member's schedule of concessions: 
"The above circumstances confirm that, prior to, during, as well as after  the Uruguay 
Round negotiations, there was broad consen sus among the GATT Contracting Parties 
to use the HS as the basis for their WTO Schedules, notably with respect to 
agricultural products.  In our view, this c onsensus constitutes an 'agreement' between 
WTO Members 'relating to' the WTO Agreem ent that was 'made in connection with 
the conclusion of' that Agreement, within  the meaning of Article 31(2)(a) of the 
Vienna Convention.  As such, this agre ement is 'context' under Article 31(2)(a) for 
the purpose of interpreting the WTO agreements , of which the EC Schedule is an 
integral part.  In this light, we consider  that the HS is relevant for purposes of 
interpreting tariff commitments in the WTO Members' Schedules." 591 
                                                                                                                                                                     
interpretative rules to Attachment B concessions, for instance, those made in acco rdance with Attachment A 
(United States' first written submission, para. 24; Unite d States' second written submission, para. 14; United 
States' response to Panel question Nos. 104 and 116)  Japan submits more broadly that HS materials that address 
directly the meaning of the language of a concession may be relevant to interpret concessions that use HS 
terminology (Japan's response to Panel question No. 104) .  Chinese Taipei similarly submits that the HS1996 
"plays a role" in the interpretation of the scope of conces sions in relation to products listed in Attachment A in 
light of the reference in paragraph 2(a) of the ITA (Chinese Taipei's response to Panel question No. 104). 
588 Japan's second written submission, para. 173. 
589 European Communities' first written submission, para. 146; European Communities' response to 
Panel questions No. 104. 
590 The European Communities argues that the use of the terms "classified (or classifiable)" in 
paragraph 2(a) is an express indication that ITA participants intended HS classification rules to have an 
important role in the interpretation of the scope of the concessions made pursuant to the ITA (European 
Communities' response to Panel questions No. 104). 
591 Appellate Body Report on EC – Chicken Cuts , para. 199.  See also Appellate Body Report on EC - 
Computer Equipment , para. 89.  In that dispute,  the Appellate Body stated: 
"We are puzzled by the fact that the Panel, in its ef fort to interpret the terms of [the EC Schedule], did 
not consider the Harmonized System and its Explanatory Notes.  We note that during the Uruguay Round 
negotiations, both the European Communities and the United States were parties to the Harmonized System.  
Furthermore, it appears to be undisputed that the Uruguay Round tariff negotiations were held on the basis of the Harmonized System's nomenclature and that requests for, and offers of, concessions were normally made in 
terms of this nomenclature."  (Appellate Body Report on EC - Computer Equipment , para. 89).  WT/DS375/R 
 WT/DS376/R 
 WT/DS377/R 
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  7.440  In establishing that the HS provided relevant "c ontext" for the interpretation of a Member's 
schedule, the Appellate Body took into considerati on a number of factors.  While noting that the HS 
was not formally part of the WTO Agreement and was not incorporated, in whole or in part, into that 
Agreement, the Appellate Body observed that the v ast majority of WTO Members are also contracting 
parties to the HS and identified what it consider ed was a "close link" between the HS and the WTO 
Agreement.
592  Specifically, the Appellate Body observed that a number of WTO agreements resulting 
from the Uruguay Round, including the Agreement on Rules of Origin (in Article 9), the Agreement 
on Subsidies and Countervailing Measures (in Article 27), and the Agreement on Textiles and 
Clothing (in Article 2 and the Annex thereto), re fer to the HS for purposes of defining product 
coverage within the agreement or the produc ts subject to particular provisions.   
7.441  The Appellate Body explained that, besides cons idering the headings and subheadings of the 
HS, a treaty interpreter may also resort to elements  which are binding on the contracting parties of the 
HS (i.e. the Section, Chapter and Subheading Notes and the GIRs), as well as other elements which 
are not binding for the contracting parties of the HS, such as the HS Explanatory Notes.593 
7.442  The Appellate Body cautioned in China – Auto Parts , however, that context provided by the 
HS may not always be relevant to the issue at hand: 
"[C]ontext is relevant for a treaty interpreter to the extent that it may shed light on the 
interpretative issue to be reso lved, such as the meaning of the term or phrase at issue. 
Thus, for a particular provision, agreement or  instrument to serve as relevant context 
in any given situation, it must not only fa ll within the scope of the formal boundaries 
identified in Article 31(2), it must also ha ve some pertinence to the language being 
interpreted that renders it capable of helpin g the interpreter to determine the meaning 
of such language.  Because WTO Members' Schedules of Concessions were constructed using the nomenclature of the Harmonized System, the Harmonized 
System is apt to shed light on the meaning of terms used in these Schedules.  It does 
not, however, automatically follow that th e Harmonized System was context relevant 
to the interpretative question faced by the Pa nel in its analysis of the threshold issue 
in this dispute."
594 
7.443  In our view, while the HS would always qualif y as context for interpreting concessions in a 
Member's schedule that are based on that nomenclature, or that explicitly or implicitly make reference 
to it, the relevance of the HS will depend on the in terpretative question at issue.  Moreover, it does not 
follow from the Appellate Body ju risprudence that the HS will necessarily  qualify as context or be 
relevant in interpreting all tariff concessions, including concessions which are not based on the HS.   
7.444  We are of the view that the HS, including h eadings and subheadings of the HS, Section, 
Chapter and Subheading Notes and the GIRs, and poten tially HSENs, are not relevant for interpreting 
the concessions based on narrative descriptions in the Annex to the EC Schedule. The terms of the EC 
                                                      
592 Appellate Body Report on EC – Chicken Cuts , paras. 195-197.   
593 See Appellate Body Report on EC – Chicken Cuts , para. 224.  While the Appellate Body agreed 
with the general proposition that "the Chapter Notes to the Harmonized System, which are binding, may have 
greater probative value than the Expl anatory Notes to the Harmonized Syst em, which are non-binding" it also 
recognized that the "probative value of a Note will, however, also depend on how relevant it is to the 
interpretative question at issue; as a result, it cannot be excluded that an Explanatory Note that directly 
addresses a given interpretative question will be more probative than a Chapter Note that does not relate 
specifically to that interpretative question." (See Appellate Body Report on EC – Chicken Cuts , para. 224, 
fn. 431). 
594 Appellate Body Report on China – Auto Parts , para. 151. WT/DS375/R 
WT/DS376/R WT/DS377/R 
Page 146 
  
  headnote are evidently not based on the HS, nor do th ey make explicit or implicit reference to it.  
Similarly, although some of the product descriptions  in the Annex to the EC Schedule make use of 
certain HS terminology, this is not the case for th e concessions at issue in this dispute, namely the 
FPDs and STBCs narrative descriptions. For this reason,  we consider that the HS will not inform our 
interpretation of the terms of the EC h eadnote or narrative descriptions at issue. 
Preliminary conclusions: The Panel's interpreta tion of the role of the EC headnote in the 
Annex to the EC Schedule  
7.445  On the basis of the plain meaning of the key terms and phrases appearing in the EC headnote, 
we preliminarily concluded that the EC headnote  requires the European Communities to extend duty-
free treatment to products described in the Annex to  the EC Schedule, irrespective of where they are 
classified in the EC Schedule.  As corollaries to this  finding the Panel further concluded that the tariff 
item numbers notified next to the product descriptions , while "illustrative" of the locations where the 
European Communities considered those products s hould have been classified at the time of 
implementation of the ITA, cannot delimit the scope  of coverage of the concessions.  We further 
explained that the HS, including chapter and explanatory notes and GIRs, are not relevant to our assessment of the scope of product coverage in any of  the narrative descriptions at  issue in this case.  
We concluded that the provisions of the ITA pr ovide context for interpreting the headnote, and 
support our preliminary conclusions. 
7.446  We will consider the FPDs narrative concession be low in light of the object and purpose of 
the WTO Agreement; however, we would note at pre sent that the substantial uniformity with which 
ITA participants included a headnote with highly si milar language, including identical language in 
many cases, is fully consistent with the notion that  the headnote was intended to play an important 
role in those Members' schedules. 
(iii) The meaning of the terms of the FPDs narrative description in the Annex to the EC Schedule  
7.447  We next examine the ordinary meaning of  the FPDs narrative description, including 
consideration of its text, taken in its context and in light of the Agreement's object and purpose.  We 
recall that the FPDs narrative description provides: 
"Flat panel display devices (including LCD, Electro Luminescence, Plasma, Vacuum-
Fluorescence and other technologies) for produc ts falling within this agreement, and 
parts thereof".
595 
The meaning of the terms of the FPDs narrative description  
Arguments of the parties 
7.448  The complainants have structured their argum ents to address the ordinary meaning of the 
terms "Flat panel display devices" separately from th e text "for" and "produ cts falling within this 
agreement, and parts thereof".  The complainants have not addressed at length the significance of the 
parenthetical language "(including LCD, Electro Luminescence, Plasma, Vacuum-Fluorescence and 
other technologies)" in the narrative description. 
                                                      
595 Exhibit US-7.  WT/DS375/R 
 WT/DS376/R 
 WT/DS377/R 
 Page 147 
  
  The meaning of the term "Flat panel display devices " 
7.449  The United States  describes a "flat panel display device" as "a type of monitor that is thinner 
and typically uses less energy than devices usi ng conventional cathode ray tube (CRT) technology".
596  
In particular, the United States notes that "flat panel display" has been defined as "a video display 
with a shallow physical depth, based on technology other than CRT (cathode ray tube). Such displays 
are typically used in laptop computers. Co mmon types of flat panel displays are the 
electroluminescent display, the gas discharge display, and the LCD display."597 In addition, the United 
States refers to the definition "[a]n electronic disp lay in which a large orthogonal array of display 
devices, such as electrolumin escent devices or light emitting diodes, form a flat screen."598 According 
to the United States, these displays rely on a va riety of technologies to achieve a thinner profile 
including LCD or plasma.599  Moreover, the United States claims that FPDs process digital signals 
directly, including those from an automatic data-p rocessing machine, via a DVI interface or other 
connector.600   
7.450  The United States argues that the term "dev ices" was inserted based on a proposal by 
Switzerland shortly after the conclusion of the ITA. In the United States' view, the inclusion of this 
word "simply makes clear" that a "device" or the fi nished product containing a flat panel display and 
not just the display itself, is covered by the concession.601 
7.451  The United States notes that the concession in the Annex to the EC Schedule specifically 
identifies LCD flat panel display devices as one of the covered types. Since "computers" are 
"automatic data-processing machines", which themse lves are products falling w ithin the agreement, 
                                                      
596 United States' first written submission, para . 50 (referring to Energy Star, LCD Basics, 
http://www.energystar.gov/index.cfm?c= monitors.lcd (Exhibit US-31)). 
597 United States' first written submission, paras. 50 an d 121, fn. 166 (referring to Microsoft Computer 
Dictionary, 2002 (5th edition), p. 155). 
598 United States' first written submission, pa ras. 50 and 121, fn. 166 (referring to McGraw Hill 
Dictionary , p. 1437). 
599 United States' first written submission, para. 50.  The United States notes in particular that LCD 
technology is commonly used for computer monitors and involves aligning material suspended in a liquid under 
the influence of a low voltage to reflect ambient light.  See Hirohisa Kawamoto, The History of Liquid-Crystal displays, Proceedings of the IEEE (Vol .90, No. 4 (April 2002), p. 466 (Exhibit US-32); Definition of "LCD" in 
Newton's Telecom Dictionary, p. 555 (24
th ed., 2008) (Exhibit US-33).  The United States refers to a definition 
for LCDs as "[a]n alphanumeric display using liquid crystal sealed between tw o pieces of glass.  The display is 
divided into hundreds or thousands of individual dots, which are charged or not charged, reflecting or not 
reflecting external light to form ch aracters, letters and numbers".  See  Newton's Telecom Dictionary (24th ed. 
2008), p. 545 (Exhibit US-33); see also Carmen Carmack  and Jeff Tyson, How Computer Monitors Work, p. 1 
("Most desktop displays use liquid crystal display (LCD) or cathode ray tube (CRT) technology, while nearly all 
portable computing devices such as laptops incorporate LCD technology.  Because of their slimmer design and 
lower energy consumption, monitors using LCD technology (also called flat panel or flat screen displays) are replacing the venerable CRT on most desktops."). 
600 United States' first written submission, paras. 52-5 3 (citing to "How Monitors Work", p. 4:  A DVI 
connector consists of three rows of pins arrayed on a plug with a screw on either side.  DVI was developed in 1998 by the Digital Display Working Group (DDWG), which included leading computer manufacturers.  The 
DVI connector was intended to provide digital-to-digital connection standard for personal computers and digital 
displays.  See Digital Display Working Group, Digital Visual Interface (DVI) Revision 1.0p, p. 5 (30 March 1999) (Exhibit US-35)). 
601 United States' response to Panel question No. 54. WT/DS375/R 
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  the United States argues that LCD monitors are th erefore covered under the product descriptions for 
FPDs.
602 
7.452  Japan  submits that LCD monitors with DVI are th e most common type of flat panel display 
devices "for" automatic data-processing machines.603  Japan  provides an "illustrative" although "not 
comprehensive" list of products it believes to be at issue.604 As the narrative description in Attachment 
B and the Annex to the EC Schedule explicitly id entify "LCD" technology in discussing flat panel 
display devices, Japan argues that "LCD monitors ar e 'flat panel display devices' for display of data 
from an ADP machine".605   
7.453  Japan argues that the addition of the term "d evice" to the descriptio n does not "materially 
change the meaning" of the concession. Japan refers  to the definition of "device" as ""a thing designed 
for a particular function or adapted for a purpose."606  Japan argues that a flat panel display for an 
automatic data-processing machine ser ves to perform the function of displaying a signal from an 
automatic data-processing machine.  Therefore, it ar gues that the addition of the term "devices" does 
not change the original meaning of "flat panel displays".607 
7.454  Chinese Taipei  argues that "flat panel display devices" are products with specialized 
definitions. Therefore, it submits that dictionaries specialized in IT sector terminology may be relevant in examining the terms "flat" , "panel", "display" and "devices".   
7.455  Chinese Taipei refers to the definition of "f lat" as "(3) Even, smooth, unbroken, without 
projection; (of the face, features, etc.) without prominence, not projecting; (of land) not undulation; 
(of a surface) smooth, level. B. Deflated, puncture d. C. (Electronic) Uniform in behaviour over a 
given range of frequencies; responding e qually to signals of all frequencies."
608 It refers to "panel" as 
"(5) A thin board such as might form a panel of a door etc.; esp. One used as a working surface. B. A 
rigid support for a painting (as opp. to a canvas); a pa inting on such a support. C. A leaf or section of 
a folding screen or triptych."609   
7.456  Chinese Taipei refers to a number of definitions of "display", such as "(2) Something intended 
for people to look at: an exhibition, a show. B. A visual presentation of data or signals on the screen 
of a cathode-ray tube etc.; a device or system used for this."610; "1. a visible representation of 
information, in words, numbers, or drawings, as on the cathode-ray tube screen of a radar set, 
navigation system, or computer console. 2 The de vice on which the information is projected. Also 
                                                      
602 United States' first written submission, para. 121. 
603 Japan's first written submission, para. 216. 
604 Exhibit JPN-15. 
605 Japan's first written submission, para. 266; Japan's second written submission, para. 150. 
606 Japan's response to Panel question No. 54 (referring to the Shorter Oxford Dictionary (2003) p. 655 
(Exhibit JPN-27). 
607 Japan's response to Panel question No. 54.  Japan argues that this view is confirmed from the 
grammatical standpoint.  When the phrase "flat panel displa y" is inserted in front of the word "devices," it 
argues, the phrase "flat panel display" serves to modify and describe the neutral term "devices."  Thus, whether 
this phrase "flat panel displays" is used as the noun, or at modifies the noun "devices ," it argues that the meaning 
does not change. 
608 Chinese Taipei's first written submission, para. 223 (citing the Shorter Oxford Dictionary  (1993), 
p. 968). 
609 Chinese Taipei's first written submission, para. 224 (citing the Shorter Oxford Dictionary (1993), 
p. 2083). 
610 Chinese Taipei's first written submission, para. 225 (citing the New Shorter (1993), p. 699).  WT/DS375/R 
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  knows as display device. 3. The image of the information."
611; "[a] generic term for a computer 
subsystem.  Printers, serial ports, and disk drives are often referred to as devices; such subsystems 
frequently require their own controllin g software, called device drivers."612; as "a thing designed for a 
particular function or adapted for a purpose; an invention, a contrivance."613; and "(1) any electronic 
or electromechanical machine or component from a tr ansistor to a disk drive.  The term "device" 
always refers to hardware, never software."614 
7.457  Chinese Taipei refers to "panel display" as "a n electronic display in which a large orthogonal 
array of display devices, such as electro-luminesce nt devices or light-emitting diodes, form a flat 
screen. Also known as flat-panel display."615  It refers to the definition "flat panel display" as "[a] 
video display with a shallow physical depth, based on technology other than CRT (cathode ray tube).  
Such displays are typically used in laptop computer s.  Common types of flat panel displays are the 
electroluminescent display, the gas disch arge display, and the LCD display"616 or "[a] thin display 
screen for computer and TV usage.  The first flat  panels appeared on laptop computers in the mid-
1980s, and the LCD technology became the standard.  Stand-alone LCD screens became available for 
desktop computers in the mid-1990s and exceeded sal es of CRTs for the first time in 2003.  For TV 
viewing, LCD and plasma are the two competing technologies, and many flat panel TVs can also 
display computer output."617  When these terms are considered t ogether, Chinese Taipei considers the 
ordinary meaning of "flat panel display device" is a "smooth and thin board used as a visual 
presentation of data or signals on that board".618 
7.458  Based on these definitions, Chinese Taipei concludes that a flat panel display device is "a thin 
display screen employing plasma, LCDs and other technologies for use with computers or other apparatus"
619; or "thin screen devices to visualize data or signals" "employ[ing] various technologies, 
such as LCD and plasma, with the exception of CRT technologies" and "hav[ing] a variety of applications including reproduction of signals from ADP machines" as well as "visualiz[ing] data 
from other sources".
620 Chinese Taipei argues that these definitions "confirm that flat panel display 
devices are for use with computers or for any othe r apparatus since no limitation is included in the 
definitions." In addition, it argues that the terms "display" and "display device", as well as "panel 
display" and "flat panel display" are synonymous.621 
                                                      
611 Chinese Taipei's second written submission, paras. 150-153 (referring to McGraw-Hill Dictionary  
(1993), p. 593; see also McGraw-Hill Dictionary (2003), p. 629. 
612 Chinese Taipei's first written submission, para. 227; Microsoft Computer Dictionary, (5th ed., 
2002), p. 155. 
613 Chinese Taipei's first written subm ission, para. 226 (referring to the Shorter Oxford Dictionary 
(1993), p. 655). 
614 Techweb On-line Dictionary (visited on 4 December 2008), available at:  
http://www.techweb.com/encyclopedia/defi neterm.jhtml?term=flatpaneldisplay. 
615 Chinese Taipei's second written submission, paras. 150-153 (referring to McGraw-Hill Dictionary 
(1993),  p. 1437; see also McGraw-Hill Dictionary (2003), p. 1522. 
616 Chinese Taipei's first written submission, para. 227;  Microsoft Computer Dictionary (5th ed., 2002), 
p. 217. 
617 Techweb On-line Dictionary (visited on 4 December 2008), available at 
http://www.techweb.com/encyclopedia/defi neterm.jhtml?term=flatpaneldisplay. 
618 Chinese Taipei's first written submission, para. 227;  Microsoft Computer Dictionary (5th ed., 2002). 
619 Chinese Taipei's first written submission, para. 233. 
620 Chinese Taipei's first written submission, para. 234. 
621 Chinese Taipei's second written submission, para. 154. WT/DS375/R 
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  7.459  Chinese Taipei also argues that th e use of the plural "devices" rather than the singular form 
"device" does not change the or dinary meaning of the concession.
622  Instead, it argues, the use of the 
plural serves to clarify that "any flat panel di splay devices are covered provided they are for 'any' 
product falling within the ITA agreement rather than just for certain products covered by the ITA".623  
Chinese Taipei argues that the last-minute inclusion of  the term "devices", in addition, confirms that 
the product description "covers both sem i-finished and finished products".624  
7.460  The European Communities  criticizes the complainants' approaches to defining the terms in 
the phrase "flat panel display devices".  It argu es that the United States "does not examine the 
ordinary meaning of the relevant te rm" and that "the ordinary meaning of the relevant term is entirely 
mixed up with vague fact-like statements and ostens ible contextual assertions without any structured 
legal analysis".625  The European Communities further critic izes the United States' citation to the 
Microsoft Computer Dictionary  that dates from 2002, arguing that this definition post-dates when 
product coverage was established in the ITA.626  The European Communities also criticizes Chinese 
Taipei's inclusion of various dictionary definiti ons dating from a time-frame after the negotiation of 
the ITA.627   
7.461  The European Communities argues that the mean ing of adding the word "devices", which it 
submits was added on the basis of a request by Switzerland628, is "less clear" and has led to "debates" 
in the ITA committee whether the definition covers fi nished products and/or semi-finished products.  
It argues that the term "devices" might have been added as "a spill-over effect from the reference to 
CRT technology in the definition of 'monitors'", such  that the addition of the word would mean that 
those genuine ADP monitors that used flat panel technology could come within the scope of the ITA.
629 However, it also recognizes the possibility of a more "technical" meaning.  In response to a 
question from the Panel, the Europ ean Communities submits that the word "devices" was added as it 
"was necessary because the product de finition was intended to cover many different display devices 
mainly for incorporation into other ITA covered products".630 Furthermore, the European 
Communities argues that the use of the plural in the term "device s" indicates that the term is not 
"synonymous" with "computer flat panel monitors ". The European Communities submits that the 
narrative description provides no guidance about the scope of possible relevant technology 
applications, such as use of a display in a car radi o or an airplane entertainment display. For this 
reason, the European Communities argues that it is  unclear what the product coverage should be.631 
                                                      
622 Chinese Taipei's second written submission, pa ras. 158-159; Chinese Ta ipei argues that "all 
products included in Attachment B" are listed in the plural, such as "c omputers", "projection type flat panel 
display units" and "monitors". 
623 Chinese Taipei's second written submission, paras. 158-159. 
624 Chinese Taipei's response to Panel question No. 54. 
625 European Communities' first written submission, para. 104. 
626 European Communities' first written submission, para. 104. 
627 European Communities' first written submission, para. 110. 
628 European Communities' first written submission, para. 186 (referring to Trade in Information 
Technology Products: Result of Bilateral Consultations, Communication from Switzerland, Geneva 
(21 January 1997) (Exhibit EC-29). 
629 European Communities' first written submission, paras. 186-187. 
630 European Communities' response to Panel question No. 54. 
631 European Communities' first written submission, para. 113.  WT/DS375/R 
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  The meaning of the term "for"
632 
7.462  The complainants  refer to the term "for" as "to be recei ved by, to belong to; to be used with, 
or in connection with."633  In addition, the United States  refers to the definition "a function word to 
indicate purpose."634 
7.463  The United States argues that the term "for" do es not impose the "limitation" suggested by the 
EC measures, such that a display would fall outside the concession due to the "mere possibility" that it 
is capable of connecting to something other than an ITA product means.635 Japan  argues that the 
ordinary meaning of the word "for" is "extremely broad, noting that the Shorter Oxford Dictionary 
provides over 20 definitions for the term.636  Japan argues that the concept of "for" should encompass 
being "capable of operating with a computer", for inst ance.  In its view, this means more than whether 
the device can merely receive signals from computers, but that such a device "must be designed to be used with computers, thereby providing an acceptable level of operational quality".
637  Chinese 
Taipei  argues that the word "for" is "extremely wide and covers many different possible 
situations".638   
7.464  Japan and Chinese Taipei additionally argue that the term "for" should not be interpreted by 
adding any limiting language in the product descripti on, such as "only for", "mainly for" or "also 
for".639  Japan also argues that the absence of limiting terms demonstrates that the word "for" should 
not be limited by any words, such as, "solely" or "principally".640 Japan argues that the mere fact that 
a device is "for" one type of machine does not, by virtue of the word alone, impose any kind of 
exclusivity of use.641   
7.465  The European Communities  argues that the complainants' interpretation of "for" is "overly 
broad".642 The European Communities acknowledges that  "for" is a function word indicating 
purpose643 and that computers fall within the ITA644; however, it contends that an analysis of the word 
                                                      
632 Chinese Taipei, unlike the other complainants, examines the phrase "for products falling under this 
agreement" as context to inform the ordinary meaning of the phrase "[f]lat panel display devices" (Chinese 
Taipei's first written submission, paras. 236-246).  He re, we will consider its arguments in this section, 
consistent with the other complainants' approach. 
633 United States' first written submission, para. 132, referring to the Shorter Oxford Dictionary (1993), 
p. 997 (Exhibits US-79; US-80); Japan's first written submission, para. 268; Chinese Taipei's first written 
submission, para. 241. 
634 United States' first written submission, para. 132 (Exhibits US-79; US-80). 
635 United States' first written submission, para. 132. 
636 Japan's first written submission, para. 268. 
637 Japan's second oral statement, para. 71. Japan argues that, even a flat panel display with a DVI 
connector may not necessarily be "for" a computer, if for instance, it can recei ve and display television signals.  
It argues that other factors would help determine this, such as the resolution of such a flat panel display device 
(Japan's second oral statement, para. 71). 
638 Chinese Taipei's first oral statement, para. 28. 
639 Japan's first written submission, para. 269; Japan's second written submission, para. 151; Chinese 
Taipei's first written submission, para. 242; Chinese Taip ei's second written submission, para. 163. Japan argues 
that no "modifier" or "restriction" app ears before or after the term "for", wh ich confirms the term "for" is used 
"without limitation".  Japan argues that the addition of th e words "only" or "mainly", which are not part of the 
text, have the effect of "stand[ing] the ordinary meaning of [the word 'for'] on its head". 
640 Japan's second written submission, para. 152; Japan's second oral statement, para. 59. 
641 Japan's first written submission, para. 268. 
642 European Communities' responses to Panel question No. 10. 
643 European Communities' responses to Panel question No. 64. 
644 European Communities' first written submission, para. 19. WT/DS375/R 
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  "for" is ineffective when examined in isolation,  since the ITA covers a variety of products. The 
European Communities argues, the ordinary meaning of  "for" could denote "only for", "mainly for" or 
"also for".
645 Based on the number of different flat pane l display products included in the ITA, the 
European Communities argues that the term  "for" serves to imply "a number of different  products" 
"rather than whether or not a given flat panel display could have multiple usages".646 In its view, the 
term "for" indicates that "a given flat panel display device is always only for a product that falls 
within the scope of the agreement".647   
The meaning of the term "products falling within this agreement" 
7.466  Chinese Taipei  argues that the phrase "for products falli ng within this agreement, and parts 
thereof" is "self explanatory", such that only flat  panel display devices for products falling within this 
agreement ... benefit from the duty-free treatment.648  Chinese Taipei argues that the term "agreement" 
refers to the ITA.  Thus, it argues that a flat pane l display device may fall within the concession if it is 
used with products falling within the ITA, incl uding at least automatic data-processing machines.649   
7.467  The European Communities  argues that the qualification "for products falling within this 
agreement, and parts thereof" necessarily means that not all flat panel display devices can fall within 
the scope of the concessions.650  It notes that "products falling within  this agreement and parts thereof" 
is in the plural.  Thus, it argues that the ordinary  meaning of the term is therefore "of very limited 
importance" because it explicitly refers to many other products covered by the agreement and 
necessitates thus a contextual analysis to be understood".651   
Consideration by the Panel 
7.468  The Panel  notes that in their arguments about the meaning and scope of the concession at 
issue, the complainants have relied on various dict ionary definitions of the relevant terms of the 
concession including technical dictionaries as well as more general dictionaries of the English language.  Given the terms involved, we are of the view that this is appropriate. 
7.469  Before we begin our analysis of the specifi c terms used in the concession based on these 
dictionary definitions, we recall the Appellate Body 's statement that, while dictionaries are a "useful 
starting point" for the analysis of "ordinary mean ing" of a treaty term they "are not necessarily 
dispositive".
652 
7.470  As noted above, the complainants have focu sed their discussion on the phrase "flat panel 
display devices", the word "for" and the phrase "pro ducts falling within this Agreement". We will 
address these in turn.   
                                                      
645 European Communities' first written submission, para. 116. 
646 European Communities' first written submission, paras. 135-136 (emphasis original). 
647 European Communities' first written subm ission, para. 136 (emphasis original). 
648 Chinese Taipei's second written submission, para. 162. 
649 Chinese Taipei's first written submission, paras. 241 and 243-245. 
650 European Communities' first written submission, para. 114. 
651 European Communities' first written submission, para. 115. 
652 Appellate Body Report on EC – Chicken Cuts , para. 175 (citing the Appellate Body Reports on: 
US - Softwood Lumber IV , para. 59; US – Offset Act (Byrd Amendment) , para. 2487; US – Gambling , para. 166).  
See also the Appellate Body Reports on: China – Publications and Audiovisual Products , para. 348; 
India - Additional Import Duties , para. 167, fn. 324; and US – Offset Act (Byrd Amendment) , para. 248.  WT/DS375/R 
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  7.471  We note that the parties have not addressed to any degree the phrase "(including LCD, Electro 
Luminescence, Plasma, Vacuum-Fluorescence and ot her technologies)" that appears in the 
concession, except to note the reference to "LCD" technology when interpreting the meaning of the 
descriptor "flat panel display devices"
653. Thus, we will not address it here . In addition, the parties did 
not specifically address the term "and parts thereof"  that appears at the end of the of the FPDs 
narrative description. The parties have agreed that the focus in this dispute should be on finished or 
complete products.654 As semi-finished products are not at issue, and based on the parties' comments 
regarding semi-finished products, we will not address the question of what tariff treatment should be 
extended to semi-finished displays or component pa rts. Accordingly, we will not evaluate the term 
"and parts thereof" in the narrative description. 
"Flat panel display devices" 
7.472  The complainants have offered a number of definitions from both ordinary and technical 
dictionaries to define the terms "Flat panel disp lay devices". Dictionary definitions should not be 
considered as the sole basis for est ablishing the ordinary meaning of a term or terms in a treaty.  
However, the Panel does note a high degree of cons istency among the definitions of the individual 
terms and the technical definitions that have been provided by the parties.  Based on a technical definition from the 2002 Microsoft Computer Dictionary  and a government website reference
655, the 
United States offers that a "flat pa nel display device" is "a type of  monitor that is thinner ... than 
devices using conventional cathode ray tube (CRT ) technology".656 In reference to individual 
definitions of the terms "flat", "panel", "display" and "devices" as well as a technical definition of the 
compound word "panel display" from the McGraw-Hill Dictionary of Scientific and Technical Terms , 
and technical definitions of "flat pa nel display" and "device" from the Microsoft Computer Dictionary  
and the Techweb On-line Dictionary , Chinese Taipei submits that a "flat panel display device" is 
among other things a "thin board" or "display" that  is designed for "visual presentation of data or 
signals" or "reproduction of signals from ADP machines".657   
7.473  In the Panel's view, both the ordinary and tec hnical dictionary definitions support the United 
States' and Chinese Taipei's descriptions.658  We note in addition that the European Communities has 
not proposed an alternative de finition of these terms.   
7.474  The European Communities critic ises the complainants' reliance on some dictionaries in 
particular, the United States' and Chinese Ta ipei's reliance on the 2002 edition of the Microsoft 
Computer Dictionary , arguing that a definition established more than five years after the conclusion 
of ITA negotiations is not reflective of the meanin g of that term during that time.  However, as 
Chinese Taipei points out, the Panel notes that both the 1993 and 2003 McGraw-Hill Dictionary of 
Scientific and Technical Terms , that pre- and post-date, the conclusion of the ITA, provide 
comparable definitions of the terms in the phrase "Flat panel display devices" to support the 
                                                      
653 See, for instance, United States' first written subm ission, para. 121; Japan's first written submission, 
para. 266; Japan's second written submission, para. 150. 
654 See complainants' response to Panel question No. 51.  Japan and Chinese Taipei expressed the view 
that the EC concession for FPDs covers both finished and semi-finished products, but have focused only on finished products.  The European Communities stated that it considered "no legal argument is advanced 
claiming that the European Communities would be in breach of its obligations in respect of semi-finished flat 
panel display devices" (European Communities' response to Panel question No. 51). 
655 Energy Star, LCD Basics, http://www.energystar. gov/index.cfm?c=monitors.lcd (Exhibit US-31). 
656 United States' first written submission, para. 50. 
657 Chinese Taipei's first written submission, para. 227. 
658 The definition of "panel display" from the McGraw-Hill Dictionary refers to an "electronic display 
... such as, electro-luminescent devices or light -emitting diodes" that form a "flat screen". WT/DS375/R 
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  complainants' interpretation.  The description from this  dictionary is similar to that in the disputed 
Microsoft Computer Dictionary .  In particular, the McGraw-Hill Dictionary of Scientific and 
Technical Terms  refers to "an electronic display" in wh ich "devices, such as electro-luminescent 
devices or light-emitting diodes, form a flat screen",  noting this may be referred to as a "flat-panel 
display".  The Microsoft Computer Dictionary  refers to "[a] video display with a shallow physical 
depth, based on technology other than CRT (cathode ray tube)", of which the "LCD display" is a 
"[c]ommon type of flat-panel display".  Moreover, we note that the 1993 edition of the Shorter Oxford 
Dictionary , through its description of a "panel" as a "thin board", and Techweb On-line Dictionary , 
through its indication that "[s]tand-alone LCD screen s became available for desktop computers in the 
mid-1990s", support these definitions. 
7.475  We note the definitions of the term "device" pr ovided by the complainants – that of "a thing 
designed for a particular function or adapted for a purpose"
659. As noted by the parties660, the fact that 
the word was added based on a late proposal by Sw itzerland does not clarify the intentions behind the 
inclusion of this word. Regardless, the parties have ag reed here that the focus in this dispute should be 
on finished or complete products and that th e term "device" appears in the EC Schedule.661 Thus, we 
do not consider it necessary to address the implicati ons of the language for semi-finished products. 
7.476  We disagree with the European Communities' conten tion that the inclusion of the plural of the 
term "devices" somehow calls into question the comp lainants' conclusions on the textual analysis of 
the terms "Flat panel display devices".  We consider  that the definition of "devices" is broad enough 
to encompass the kind of finished products that ar e at issue in this dispute when interpreted in 
accordance with the Vienna Conventi on.  The parties have recognized that the concession is intended 
to cover finished products, in addition to semi-finished ones. 
7.477  Therefore, in light of the several dictionary definitions presented by the complainants, that 
both pre- and post-date the time-frame in which the European Communities included the concession 
for FPDs in the Annex to the EC Schedule, we conc lude that the plain meaning of the terms "Flat 
panel display devices" refers to a t ype of apparatus that has a flat di splay and is generally thinner than 
conventional CRT displays or monitors, and is designed  for visual presentation of data or signals.  We 
further observe, based solely on our assessment of the terms "Flat panel display devices", that there is 
no limitation on technical characteristics, such as screen size, dimension, refresh rate, dot-pixel ratio, or other technical characteristics.  There is also no limitation on the type of connector sockets it may 
possess, such as VGA, s-video, DVI-I, DVI-D or HDMI .  Moreover, we do not consider that the terms 
"Flat panel display devices" in isolation, set any limitation on whether the apparatus may only display 
or reproduce signals from automatic data-processing m achines, or whether it may display signals from 
multiple sources.  This is reinforced by the pa renthetical language that immediately follows it 
providing examples of the different technologies to  be covered by the concession, including "LCD, 
Electro Luminescence, Plasma, Vacuum-Fluorescence and other technologies." We now consider the 
remaining terms in the description.   
                                                     
 
659 The Shorter Oxford Dictionary (1993), p. 655. 
660 See the parties' response to Panel question No. 54; European Communities' first written submission, 
para. 186, referring to Trade in Information Tec hnology Products: Result of Bilateral Consultations, 
Communication from Switzerland, Geneva, 21 January 1997 (Exhibit EC-29). 
661 See complainants' response to Panel question No. 51.  WT/DS375/R 
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  "for"  
7.478  We recall that  the complainants have focused  on a limited category of finished flat panel 
display devices.
662 We will confine our analysis of the term s as they would apply to such types of 
devices.  While it is not obvious why the word "for" would have a different me aning in other contexts, 
the Panel does not consider it is necessary  to make a ruling in this regard. 
7.479  The complainants have indicated that the te rm "for", among other meanings, can mean "a 
function word to indicate purpose" and "to be receive d by, to belong to".  The European Communities 
has not proposed alternatives to the definitions provided by the complainants. 
7.480  In our view, use of the word "for" in the narra tive description at issue is intended to limit the 
coverage of the concession to those flat panel display devices that have as a purpose operation with 
products described in the concession as "products falling within this agreement". We note the 
complainants have limited their arguments to discussing automatic data-processing machines. We 
therefore focus our analysis here on automatic data -processing machines, and not other products.  Flat 
panel displays must be  "designed for use" with an  automatic data-processing machine.  In the Panel's 
view, the mere capability of a flat panel display device to connect to an  automatic-data-processing 
machine, for example, would not necessarily mean that the flat panel display device was "for" use 
with an automatic-data-processing machine. Japan  has argued that the concept of "for" should 
encompass being "capable of operating with a comput er". In our view, mere use, or capability to 
connect to an automatic data-processing machine w ould not fit within the notion of "for products 
within this Agreement". As Japan explained663, if a device is capable of connecting to a device in 
some minimal respect, i.e., it receives and reproduces signals for viewing, but the displayed image or 
signal is not of acceptable quality or of practical use, that would not be enough to satisfy the 
concession.  Thus, under the concession, we consider  an objective assessment of the product would be 
required, taking into consideration elements such  as image quality, resolution, screen size in relation 
to the particular product range of  applications, and so forth. 
7.481  Such an interpretation does not in our view im ply exclusivity, such that a device must be 
"solely" for, or "only" for use with an automatic  data-processing machine.  In our view, it is not 
appropriate to read in such words,  as the European Communities suggests664.  Had the drafters 
intended such exclusivity then they would have incl uded those terms or similar ones.  However, they 
have not. 
"products falling within this Agreement" 
7.482  We explained in the preceding section that th e word "for" in this context means "designed 
for" and encompasses the capability to operate wi th products falling within the ITA, including 
automatic data-processing machines. We said that this implies an ability to operate with an acceptable 
or functional level of operation, as opposed to me re incidental ability to achieve a connection.  
However, we explained that the concession does no t provide that flat panel display devices must 
exclusively connect with an automatic data-proces sing machine or other product covered by the ITA, 
nor the manner in which that connection should be achieved.  We also indicated that we would limit 
                                                      
662 See para. 7.471 above. 
663 Japan's second oral statement, para. 71.  Japan argues that, even a flat panel display with a DVI 
connector may not necessarily be "for" a computer, if for instance, it can recei ve and display television signals.  
It argues that other factors would help determine this, such as the resolution of such flat panel display device (Japan's second oral statement, para. 71). 
664 European Communities' first written submission, para. 116. WT/DS375/R 
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  our analysis of the terms as they apply to these products, and would not address semi-finished or other 
products, or parts of products.   
7.483  We thus do not consider it relevant or neces sary to assess the full gamut of products within 
the ITA Agreement that would be subject to the c oncession. In other words, we do not consider it our 
task to determine all the products that would be capab le of operating with the products at issue in this 
dispute. Rather, we consider our task to be to determine whether the concession covers those products 
at issue, namely those that are designed for u se with automatic data-processing machines (which, 
undisputedly, fall within the ITA), as well as, poten tially, with sources other than automatic data-
processing machines. 
7.484  Based on our assessment of the plain meanings of  the terms above, we disagree that the use of 
the plural in the term "product s" limits the "importance" of ascertaining the ordinary meaning of the 
phrase because it refers to many products covered by the agreement.
665  In our view, the phrase is self-
explanatory and refers to all pr oducts falling within the ITA. 
Preliminary conclusion on the meaning of the FPDs narrative description 
7.485  Based on the foregoing assessment, we preliminaril y conclude that the concession refers to 
certain apparatus or devices that have a flat disp lay and are generally thinner than conventional CRT 
displays or monitors, and are designed for visual presentation of data or signals from products falling 
with in the ITA, including notably, automatic da ta-processing machines.  We find preliminarily that 
there is no express limitation on technical characteristics, such as screen size, dimension, refresh rate, 
dot-pixel ratio, or othe r technical characteristics, including no express limitation on the type of 
connection or sockets it may possess, such as DVI.  Mo reover, we conclude that while the flat panel 
display devices at issue must be designed for use with an automatic data-p rocessing machine there is 
no requirement for exclusivity, such that the c oncession would be limited to apparatus that only 
display or reproduce signals from products falling within the ITA, including automatic data-
processing machines.   
(iv) The terms of the FPDs narrative description in their context 
7.486  The complainants  have argued that other narrative descrip tions that appear in the Annex to 
the EC Schedule provide relevant context that further supports their interpretation of the FPDs 
narrative description.   
7.487  The European Communities  has referred to other parts of its Schedule, including 
descriptions in the tariff item numbers notified in connection with the FPDs narrative description, and 
the concessions in other ITA participants' WTO Sc hedules in support of their interpretation of the 
FPDs narrative description as it appears in the Annex to the EC Schedule. 
Other parts of the EC Schedule as context  
7.488  The Panel recalls that the Appellate Body explained in EC – Chicken Cuts , that context in a 
Member's Schedule may include "other te rms" in the same heading or chapter.666 We will consider the 
parties' arguments surrounding whether various elem ents found in the EC Schedule, including other 
descriptions in the Annex to the EC Schedule, inform the interpretation of the FPDs narrative 
description. 
                                                      
665 See European Communities' first written submission, para. 115. 
666 Appellate Body Report on EC – Chicken Cuts , para. 193.  WT/DS375/R 
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  The descriptions in the 14 tariff item numbe rs in connection with the FPDs narrative 
description as context 
7.489  The European Communities argues that the 14 tariff item numbers that were notified in 
connection with the FPDs narrative description in th e Annex to the EC Schedule provide relevant 
context for the Panel's interpretation.  The tariff item numbers provide as follows: 
" 8471 60 90
: Automatic data-processing machines and units thereof; magnetic or 
optical readers, machines for transcribing data onto data media in coded form and 
machines for processing such data, not else where specified or included; - Input or 
output units, whether or not containing storag e units in the same housing; -- Other; --- 
Other 
8473 30 10 : Parts and accessories (other than covers, carrying cases and the like) 
suitable for use solely or principally with machines of heading Nos 8469 to 8472; - Parts and accessories of the machines of heading No 8471 -- Electronic assemblies 
8473 30 90
: Parts and accessories (other than covers, carrying cases and the like) 
suitable for use solely or principally with machines of heading Nos 8469 to 8472; - Parts and accessories of the machines of heading No 8471; -- Other 
8531 20 30
: Electric sound or visual signalling a pparatus (for example, bells, sirens, 
indicator panels, burglar or fire alarms), other than those of heading No 8512 or 8530 - Indicator panels incorporating liquid cr ystal devices (LCD) or light emitting diodes 
(LED); --Other; --- Incorporating light emitting diodes (LED) 
8531 20 51
: Electric sound or visual signalling a pparatus (for example, bells, sirens, 
indicator panels, burglar or fire alarms), other than those of heading No 8512 or 8530 - Indicator panels incorporating liquid cr ystal devices (LCD) or light emitting diodes 
(LED); --Other; --- Incorporating liquid crystal devices (LCD); ---- Incorporating 
active matrix liquid crystal devices (LCD); ----- Colour 
8531 20 59
: Electric sound or visual signalling a pparatus (for example, bells, sirens, 
indicator panels, burglar or fire alarms), other than those of heading No 8512 or 8530 - Indicator panels incorporating liquid cr ystal devices (LCD) or light emitting diodes 
(LED); --Other; --- Incorporating liquid crystal devices (LCD); ---- Incorporating 
active matrix liquid crystal devices (LCD); ----- Black and white or other 
monochrome 
8531 20 80
: Electric sound or visual signalling a pparatus (for example, bells, sirens, 
indicator panels, burglar or fire alarms), other than those of heading No 8512 or 8530 - Indicator panels incorporating liquid cr ystal devices (LCD) or light emitting diodes 
(LED); -- Other; --- Other 
8531 80 30
: Electric sound or visual signalling a pparatus (for example, bells, sirens, 
indicator panels, burglar or fire alarms), other than those of heading No 8512 or 8530; 
- Other apparatus; -- Other; ---Flat panel display devices 
8531 90 10 : Electric sound or visual signalling a pparatus (for example, bells, sirens, 
indicator panels, burglar or fire alarms), other than those of heading No 8512 or 8530; 
- Parts; -- Of apparatus of subheading No 8531 20 WT/DS375/R 
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  8531 90 30
: Electric sound or visual signalling a pparatus (for example, bells, sirens, 
indicator panels, burglar or fire alarms), other than those of heading No 8512 or 8530; 
- Parts; -- Of apparatus of subheading 8531 80 30 
9013 80 11 : Liquid crystal devices not constituting articles provided for more 
specifically in other headings; lasers, other than laser diodes; other optical appliances 
and instruments, not specified or included el sewhere in this Chapter; - Other devices, 
appliances and instruments; -- Liquid crystal devices; --- Active matrix liquid crystal devices; ---- Colour 
9013 80 19
: Liquid crystal devices not constituting articles provided for more 
specifically in other headings; lasers, other than laser diodes; other optical appliances 
and instruments, not specified or included el sewhere in this Chapter; - Other devices, 
appliances and instruments; -- Liquid crystal devices; --- Active matrix liquid crystal devices; ---- Black and white or other monochrome 
9013 80 30
: Liquid crystal devices not constituting articles provided for more 
specifically in other headings; lasers, other than laser diodes; other optical appliances 
and instruments, not specified or included el sewhere in this Chapter; - Other devices, 
appliances and instruments; -- Liquid crystal devices; --- Other 
9013 90 10 : Liquid crystal devices not constituting articles provided for more 
specifically in other headings; lasers, other than laser diodes; other optical appliances 
and instruments, not specified or included elsewhere in this Chapter; - Parts and 
accessories; -- For liquid crystal devices (LCD)" 
7.490  The Panel will consider the parties' arguments below. 
Arguments of the parties 
7.491  The European Communities  argues that the descriptions in the 14 tariff item numbers that 
were notified in connection with the FPDs narrativ e description in the Annex to the EC Schedule 
demonstrate that the FPDs concession covers many different headings, which in turn cover many 
different products.  In terms of coverage, the European Communities points out that the list does not 
include HS1996 subheadings 8528 12 and 8528 13, or  8528 21 and 8528 22, which, it argues reflects 
its dutiable concessions concerning televisions and video monitors. The European Communities 
argues that only tariff item number 8471 60 90 is releva nt for the Panel's consideration of the products 
in question because, it argues, this code is the so le code where the complainants claim multifunctional 
LCD monitors belong in the EC Schedule.  By iden tifying this code next to the narrative description 
for FPDs, the European Communities argues that it is committed to applying no duties on these 
devices "to the extent some of them would be considered  to fall within this tari ff heading". It notes, in 
addition, that tariff item number 8471 60 90 was notifie d next to four other narrative descriptions: for 
"Network equipment (...)", "Monitors: (...)", "Plotters whether input or output units (...)" and 
"Projection type flat panel display units (...)".667 
7.492  The United States  argues that the tariff item numbers next to the product descriptions in the 
Annex to the EC Schedule merely reflect the types of products the European Communities at the time 
considered were covered by its Attachment B concessi ons.  It argues that the mere fact that HS codes 
may indicate some products covered by the EC concessions does not mean however, the codes 
                                                      
667 European Communities' first written submission, paras. 125-127.  WT/DS375/R 
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  themselves are the concession. Furthermore, the United States notes that participants identified 
different codes, indicating no consensus with regard to classification.
668 
7.493  Japan  argues that the tariff item numbers listed in the Annex to the EC Schedule may only 
serve to illustrate the range of products that might  fall within the scope of the narrative description or 
provide limited context.669 Japan submits that any other interp retation would defeat the purpose of 
Attachment B, since the HS was viewed as t oo limiting for defining the scope of Attachment B-
related concessions.670 In its view, the fact that different countries included different codes cannot 
mean that the language of concessions means different things to different countries.  Instead the codes 
are limited to showing that different countries have  different national systems for classifying the same 
underlying product scope defined by the language of the concessions.  By viewing the HS codes as 
illustrative, Japan argues that the Panel will "preserve  the integrity of the Attachment B approach as 
going beyond the HS nomenclature".  Otherwise, it argues, countries could "trump or restrict" the meaning of the language of the concession that had been agreed upon.
671 
7.494  Chinese Taipei  argues that the 14 tariff item numbers are the headings which the European 
Communities considers to be affected by the concession within the FPDs narrative description. 
However, it argues the scope of the concessions pursu ant to Attachment B cannot be defined by the 
scope of specific HS headings or tariff item numbers.672  The codes, it argues, are "evidence" of how 
the European Communities considered  the Attachment B concession s hould be "translated" into the 
CN, or to clarify the meaning.  Chinese Taipei considers the fact that the European Communities 
included "such an extensive list" of tariff item numbe rs in its Schedule "demonstrates that the parties 
considered that the product description in Attachment  B covers a very broad range of products based 
on flat panel display technology".673 It argues that how an individual WTO Member gives examples of 
the scope of its WTO commitments, however, cannot substitute for the determination of the common 
intention of all WTO members.674 Chinese Taipei argues that none of the 14 tariff item numbers can 
be interpreted to exclude flat panel display devi ces that are capable of receiving signals both from an 
ADP machine and other sources.675 Thus, it argues that the tariff item numbers do not support the 
proposition that FPDs are not covered by that concession if they are able to be connected to apparatus 
other than automatic data-processing machines. 676 
Consideration by the Panel 
7.495  The Panel  recalls its preliminary finding that the FPDs narrative description determines the 
scope of the concession, no matter where it is classified in the EC Schedule, and that the tariff item 
numbers appearing alongside the product descriptions do not have the effect of controlling the scope 
of coverage arising from the ordinary  meaning of the product descriptions.677   
7.496  Aside from their reference in the Annex to th e EC Schedule, these CN codes also appear 
elsewhere in the EC Schedule together with their associated six-digit HS subheading descriptions.   
                                                      
668 United States' response to Panel question No. 116. 
669 Japan's second written submission, para. 160. 
670 Japan's response to Panel question No. 116. 
671 Japan's second written submission, para. 161. 
672 Chinese Taipei's response to Panel question No. 116. 
673 Chinese Taipei's first written submission, paras. 256-257. 
674 Chinese Taipei's response to Panel question No. 116. 
675 Chinese Taipei's first written submission, paras. 259-263, 272-279. 
676 Chinese Taipei's first written submission, paras. 279-280. 
677 See para. 7.343 above. WT/DS375/R 
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  7.497  As we noted above, the CN codes address a differe nt issue - they assist in the implementation 
of Attachment B-related commitments by reflecti ng the classification intended by the European 
Communities at that time. This was necessary due to th e participants' view that the approach taken in 
Attachment A, namely specifying HS headings, was not feasible for products described in Attachment 
B. As ITA participants notified different codes ne xt to the descriptions in many cases, we explained 
that reliance on interpretation of those codes would not reflect the common intentions of participants 
and could run contrary to an assessment of the objective meaning of the terms. We accordingly 
decline to consider them further.
678 
The narrative description for "monitors" as context 
Arguments of the parties 
7.498  The European Communities  argues that the narrative description for "monitors" in its 
Schedule is relevant context for de termining the scope of the FPDs narra tive description. In particular, 
it argues that the exclusion of "televisions" in the concession for "monitors" is not limited to CRT 
televisions but should be understood categorically to exclude all monitors which are able to function 
as televisions because of their ability to receive a nd process televisions or vi deo signals, irrespective 
of the technology used. It submits that CRT tec hnology was mentioned specifically in the monitors 
concession because this was the technology that was used by televisions and monitors at the time 
when the concessions were made.679 Finally, the European Communities notes that the last sentence of 
the definition of monitors explicitly excludes "High De finition (HD)" televisions. In view of this, it 
argues that it would not make sense to interpret the last sentence of the text relating to the definition 
of 'monitors' as excluding only HD monitors that  use the CRT technology from the scope of the 
concessions while including HD monitors using other technologies because, it states "[m]ost 
multifunctional LCD monitors in the market today are 'HD Ready'".680 
7.499  The complainants  argue that a separate concession for "m onitors" that appears in the Annex 
to the EC Schedule is expressly limited to CRT monitors , which are not at issue in this dispute. They 
submit that the use of the term "therefore" in th e sentence referring to the exclusion of televisions 
indicates that the exclusion "is only to be read in conjunction" with the description of the CRT 
monitor.681 Thus, the complainants reject the idea that th e exclusion of televisions is a "categorical" 
exclusion, that also applies to "video monitors" or  "monitors able to function as televisions because of 
their ability to receive and pro cess television or video signals".682   
                                                      
678 See para. 7.404 above.  We note, nevertheless, that a cursory review of the remaining CN codes and 
their descriptions does not inform us as to whether products falling under this heading must be used only with an 
automatic data-processing machine or other products with in the product scope of the ITA, or may include "flat 
panel displays" with DVI or other interfaces that may r eceive or reproduce signals fr om multiple sources.  At a 
minimum, the codes generally confirm the view that the FPDs narrative description was envisioned to cover certain displays as finished products, in addition to semi-finished products.  We recall from above however, that 
semi-finished products are not in dispute.  We therefore do not consider them in this dispute. 
679 European Communities' first written submission, paras. 128-131.   
680 European Communities' response to Panel question No. 53. 
681 United States 'second written submission, para. 82; United States' response to Panel question No. 
52; Japan's first oral statement, para. 50; Chinese Taipei's second written submission, para. 171; Chinese Taipei's response to Panel question No. 52.  If a general exclusion for televisions had been intended to apply 
generally to the ITA, the United States  argues that the exclusion would have  been incorporated into Attachment 
B independently (United States 'second written submission, para. 82). 
682 United States 'second written submi ssion, para. 83; United States' seco nd oral statement, para. 32; 
Japan's first oral statement, para. 50.  The United States  notes in addition that the ITA concession incorporated  WT/DS375/R 
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  7.500  Japan  submits that the concession for "monitors" provides a specific carve-out for products 
capable of receiving and processing television si gnals or other non-computer input signals.
683 It argues 
that CRT technology is "distinct" from digital technolo gy employed in flat panel display devices, thus 
preventing the carve-out from being a pplied to flat panel display devices.684 In Japan's view, the 
limitation to CRT-based technology demonstrates that drafters used restrictive language when they 
intended to restrict the scope, which, it argu es, is not the case for the concession for FPDs.685   
7.501  Chinese Taipei  considers that both CRT and digital t echnology existed at the time of the 
concessions; thus, it submits there is no basis to concl ude that the exclusion of televisions also applies 
to the concession for FPDs.686 
Consideration by the Panel 
7.502  The parties have identified the following langua ge that appears in the Annex to the EC 
Schedule: 
"Monitors: display units of automatic da ta-processing machines with a cathode ray 
tube with a dot screen pitch smaller than 0,4 mm not capable of receiving and 
processing television signals or other analogue  or digitally processed audio or video 
signals without assistance of a central processi ng unit of a computer as defined in this 
agreement.  The agreement does not, theref ore, cover televisions, including high 
definition televisions."687 
7.503  As evident from the text, the device must be CRT-based, and cannot be capable of receiving 
and processing signals independent of connection with an automatic data-processing machine. The 
Panel notes that this restriction is limited to CRT monitors, and does not appear in the concession relating to flat panel display devices for automatic data-processing machines.  
7.504  We also note the concluding text "[t]he agre ement does not, therefore, cover televisions, 
including high definition televisions".
688 On its face, this statement relates directly to the concession 
                                                                                                                                                                     
from Attachment B expressly covers "computers capable of receiving and processing television and other video 
signals", thus calling into question the basis for a categorical exclusion of monitors able to function as 
televisions (United States 'second written submission, para. 84). 
683 Japan's first oral statement, para. 50. 
684 Japan's second written submission, para. 165; Japan's response to Panel question No. 52.  Japan also 
finds support for the distinction historically, submitting that CRT monitors capable of receiving and processing 
televisions signals existed in 1996, such that "the desire  explicitly to exclude televisions made sense" (Japan's 
second written submission, para. 166). 
685 Japan's second written submission, paras. 163-164;  Japan's first oral statement, para. 50; Japan's 
response to Panel question No. 52. 
686 Chinese Taipei's second written submission, para. 173. 
687 Exhibit US-7.  The Panel notes that the descriptio n as it appears in the IT A is drafted differently, 
with the sentence referring to the exclusion of televisions in a separate paragraph from the description of 
monitors.  In addition, the exclusion concludes with a footnote which indicates that the "[p]articipants will 
conduct a review of this product description in January 1999 under the consultation provisions of paragraph 3 of 
the Declaration". 
688 The Panel takes note of footnote 3 to the last sentence of the "Monitors" description, as it appears in 
Attachment B of the ITA, which provides: "Participants will conduct a review of this product description in 
January 1999 under the consultation provisions of para graph 3 of the Declaration". The European Communities 
argues that a "restrictive interpretation seems to be conf irmed by the presence of [this footnote]" and that the 
definition of monitors appearing in Attachment B "constitute[d] the common denominator upon which all 
parties could agree by the time of signature of the Ag reement" (see European Communities' response to Panel WT/DS375/R 
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  immediately preceding it, namely CRT monitors with particular characteristics. While the term 
"television" is not defined in the ITA, or in th e Annex to the EC Schedule, the use of the word 
"therefore" implies a definition of "television" th at is limited to CRT technology, and which is 
incapable of receiving and processing television signals  or other analogue or digitally processed audio 
or video signals without the assistance of a central processing unit of an automatic data-processing machine. While this may be a limited definition of  the word "television", the Panel notes that the 
drafters of the ITA had the option of adding simila r restrictions on the concession relating to FPDs for 
ADPs but yet did not.   
7.505  We observe that a Member, when making a comm itment pursuant to Article II of the GATT 
1994, may choose precise, even exclusive, terms and conditions to qualify or limit the scope of 
coverage.  These include terms and conditions that w ould limit coverage to a particular product based 
on its physical attributes, dimensions, technical characteristics or features.  A Member may also refer to a particular classification or tariff heading to define or limit the scope of a concession.  The 
determination of the scope of coverage comes from the meaning of the terms of that commitment.  
For this reason, a panel should not read qualifica tions into a commitment that are not there.   
7.506  We recall our preliminary conclusion, based on the text of the FPDs narrative description that 
flat panel display devices that are "for" products fa lling within the ITA, are covered by the FPDs 
narrative concession. We preliminarily concluded based  on the plain meaning of the term "for" that 
such devices must be "designed for" or capable of providing an acceptable level of operation, to fall 
within the concession. We did not find, however , that the text of the concession imposed any 
exclusivity requirement pertaining to which sources a flat panel display device could connect to, nor 
did we determine a requirement as to with wh ich connectors such a display may be fitted. 
7.507  In contrast, we note that the "monitors" narrativ e description in the Annex to the EC Schedule 
is detailed and limited to CRT monitor units of au tomatic data-processing machines with a precise dot 
screen pitch that are not capable of receiving a nd processing television signals or other analogue or 
digitally processed audio or vi deo signals without assistance of a central processing unit of an 
automatic data-processing machine as defined in the ITA. 
7.508  We do not understand the complainants to claim th at all display devices or monitors, such as 
televisions using LCD or other non-CRT technologies,  necessarily, would fall within the meaning of 
the FPDs narrative concession. Rather, the complainan ts have requested the Panel to find that the 
measures at issue are inconsistent with the Europ ean Communities' obligations under Article II of the 
                                                                                                                                                                    
 
question No. 61).  The inclusion of this footnote in connection with the statement that "[t]he agreement does not, 
therefore, cover televisions, including high definition televisions" suggests that the ITA drafters perhaps envisioned that the product description would be inadequate to fully address the objective of excluding 
"televisions" from coverage under the agreement and should th erefore, be subject to revi ew.  In this sense, it is 
foreseeable that the drafters anticipat ed that technologies other than CRT-b ased displays may be incorporated 
into televisions, and that televisions with different technologies, such as LCD or plasma, might also need to be 
excluded.  It is also possibl e however, that this footnote refers to th e description in its entirety, and was simply 
placed at the end of the full description.  This may sugge st that ITA participants were uncertain as to whether 
the full gamut of possible "monitor" technologies were discussed, or that the scope of the description was 
reflected as intended.  However, neither interpretation is supported by the text in isolation, nor have parties 
provided any persuasive evidence to substantiate either  view.  The European Communities contends that Japan 
requested such a review in accordance with footnote 3 of the ITA Annex, but this "led to no change" (see 
European Communities' response to Panel question No. 61).  Finally, we note that the Annex to the EC 
Schedule does not include this footnote or any reference to it.  In light of the foregoing, the Panel is unable to draw broad conclusions on the excl usion for televisions, and its app licability beyond the description for 
"Monitors".    WT/DS375/R 
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  GATT 1994 because they apply per se  rules, requiring that all devices that are fitted with a DVI, for 
instance or those that are capable of receiving or reproducing signals from sources other than an 
automatic data-processing machine are necessarily excluded from duty-free coverage. The 
complainants have not indicated that they are challenging the European Communities' treatment of 
"televisions" or products that are capable of re ceiving and processing tele vision signals or other 
analogue or digitally processed audio or video signa ls without assistance of a central processing unit 
of an automatic data-processing machine. Nor do we  understand them to argue that all "televisions" 
necessarily qualify as flat panel display devices under the concession. 
7.509  The importance of the "exclusion" of televisions  "categorically" in other descriptions would 
require a treaty interpreter to as sess whether "television" would refer to products that are capable of 
receiving and processing television  signals without the assistance of a central processing unit of an 
automatic data-processing machine. Thus, in addition to taking the step of treating the exclusion as 
categorical and broadly applicable, the Panel would also be required to make a determination on the 
intended meaning of the term "television". This analysis would take use beyond the complainants' 
claims as well as the arguments before us.  We do not consider it necessary to address this issue.  
The narrative description for "net work equipment" as context 
Arguments of the parties 
7.510  Japan  argues that the language of the "network  equipment" narrative description within 
Attachment B confirms a "broad and inclusive" in terpretation of the concessi on for flat panel display 
devices.  In particular, Japan argues that the inclus ion of limiting language "dedicated for use solely or 
principally" in the description reflects the idea th at, where parties intended to require that the 
equipment be dedicated for use solely or prin cipally with ADP machines, such language was 
included.  In its view, the absence of this language in the concession for FPDs is a reflection that the 
limitation was not intended.
689   
7.511  The European Communities  argues that Japan's " a contrario " argument, based on the fact 
that the narrative description for network equipmen t uses the words "solely or principally" in its 
description, whereas the description for FPDs does not, fails to consider that the FPDs narrative 
description explicitly refers to products "falling within  this agreement". Further, it argues that the term 
"for" does not necessarily exclude "solely or principally" in relation to a specific product.690 
Consideration by the Panel 
7.512  The parties have identified the following langua ge that appears in the Annex to the EC 
Schedule: 
"Network equipment: Local Area Network (LAN) and Wide Area Network (WAN) 
apparatus, including those products dedicated for use solely or principally to permit 
the interconnection of automatic data-p rocessing machines and units thereof for a 
network that is used primarily for the sh aring of resources such as central processor 
units, data storage devices and input or out put units including adapters, hubs, in line 
repeaters, converters, concentrators, br idges and routers, and printed circuit 
                                                      
689 Japan's first written submission, paras. 281-283; Japan's second written submission, paras. 168-170. 
690 European Communities' first written submission, para. 136. WT/DS375/R 
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  assemblies for physical incorporation into  automatic data-processing machines and 
units thereof."
691 
7.513  Japan and the European Communities highlight the terms "solely or principally" in the 
concession. 
7.514  We recall again that the complainants have requ ested the Panel to find that the measures at 
issue are WTO-inconsistent because they apply per se  rules, requiring that all devices that are fitted 
with a DVI, for instance or those that are capabl e of receiving or reproducing signals from sources 
other than an automatic data-processing machine, are necessarily excluded from duty-free coverage. 
The complainants argue that the products they have identified fall within the scope of the FPDs 
narrative description. In particular, they argue that  the ordinary meaning of the term "for" in the 
concession does not require that devices operate ex clusively with an automatic data-processing 
machine to qualify for duty-free treatment under the concession. 
7.515  Our task in this dispute is not to determine the meaning of the terms "solely or principally", as 
these terms do not appear in the FPDs narrative descri ption. Rather, Japan argues that these terms in 
the context of the "network equipment" description in the Annex to the EC Schedule serve to emphasize that the drafters used exclus ionary language where it was intended.   
7.516  In the preceding section, we explained that  WTO Members may choose precise, exclusive 
terms and conditions to define a concession or to limit the scope of coverage. However, Members 
may otherwise choose broad language to define a concession. We preliminarily concluded based on 
the plain meaning of the terms in the FPDs concessi on, that coverage was at least broad enough to 
include flat panel display devices that could conn ect to sources other than automatic data-processing 
machines, as long as those displays were "for" products falling within the ITA. 
7.517  The network equipment concession shows that nego tiators were well aware of concepts such 
as "solely" and "principally", which are also con cepts used in the HS. These terms do not appear in 
the FPDs narrative description, however, and we have  taken that into consideration in our assessment 
of the text of the FPDs description. Notably, we  consider the absence of the terms "solely" or 
"principally" to suggest a broader reading. 
The narrative descriptions for "projection ty pe flat panel display units used with 
automatic data-processing machines..." and "multimedia upgrade kits for automatic 
data-processing machines..." as context 
Arguments of the parties 
7.518  Japan  argues that the word "can" used in the concession for "projection type flat panel 
display units..." in the Annex to the EC Schedul e informs the interpretation of the FPDs narrative 
description.  In particular, it argues that "can" me ans that "dual or multiple usages for the unit is 
contemplated"
692, or that any device that "'can' display digital information from the computer will be 
covered".693 In its view, both devices under the FPDs and "p rojection type flat panel display units..." 
concessions are "for" computers if they have th e "ability to display information from an ADP 
machine".694 Japan additionally argues that the language of  the description for projection type flat 
                                                      
691 Exhibit US-7. 
692 Japan's first written submission, para. 285. 
693 Japan's second written submission, para. 171. 
694 Japan's first written submission, para. 287; Japan's second written submission, para. 172.  WT/DS375/R 
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  panel display units does not include express limita tions like in the concessions on "Monitors" or 
"Network equipment.
695 
7.519  Chinese Taipei  considers that because the concession fo r "projection type flat panel display 
units..." is limited to those that are "used with ADP machines..." means that the phrase "for products 
falling within this agreement" includes FPDs, even  though they may be able to be connected to 
apparatus other than ADP machines. It consider s this is the case because the scope of products 
"falling within the ITA" is broader than "ADP mach ines".  Chinese Taipei argu es that it is "sufficient 
that the display unit can, i.e., is able to, display information from an ADP machine in order to fall 
under the scope of the ITA". It argues "there is  no reason why a stricter requirement would be 
applicable to the FPDs concerned in this dispute, which also rely on flat panel display technology".696   
7.520  The European Communities  disputes that the use of the word  "can" in the "projection type 
flat panel display units..." con cession contemplates dual or multiple usages, and that such an 
interpretation can be extended to interpret the FPDs concession.697 The European Communities 
contends that the concession for pr ojection type flat panel display units refers to a "very specific 
finished product" used with automa tic data-processing machines". Theref ore, it considers that, even if 
a projection type flat panel display unit could di splay signals from sources other than an automatic 
data-processing machine, it remains covered by the d escription for projection type flat panel display 
provided that the display is solely or principally  of a kind used with an automatic data-processing 
machine.698   
7.521  Chinese Taipei  additionally argues that because the concession for "multimedia upgrade kits 
for automatic data-processing mach ines..." is limited by the term s "for automatic data-processing 
machines", means that the phrase "for products fa lling within this agreement" within the FPDs 
description, is broader. It considers this is the case because the scope of pr oducts "falling within the 
ITA" is broader than "ADP machines".699 
Consideration by the Panel 
7.522  The "projection type flat panel display un its..." narrative description provides as follows: 
"Projection type flat panel display units  used with automatic data-processing 
machines which can display digital informa tion generated by the central processing 
unit."700 
7.523  The multimedia upgrade kits for automatic da ta-processing machines' narrative description 
provides as follows: 
"Multimedia upgrade kits for automatic data -processing machines, and units thereof, 
put up for retail sale, consisting of, at least, speakers and/or microphones as well as a 
                                                      
695 Japan's second written submission, para. 172. 
696 Chinese Taipei's first written submission, paras. 248-249. 
697 European Communities' first written submission, para. 137. 
698 European Communities response to Panel question No. 61.  The European Communities argues that 
it would be more appropriate to compare the definition of "projection type flat panel displays" and "monitors"  
because these definitions are both specifically defined as "display units" of or used with computers". 
699 Chinese Taipei's first written submission, para. 248. 
700 Exhibit US-7. WT/DS375/R 
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  printed circuit assembly that enables the ADP machines and units thereof to process 
audio signals (sound cards)."
701 
7.524  The "projection type flat panel display units ..." narrative description contains the terms " used 
with automatic data-processing machines". (emphasi s added) The "multimedia upgrade kits for 
automatic data-processing machines..." narra tive description contains the terms " for automatic data-
processing machines".  (emphasis added) 
7.525  We are of the view that the phrase "automatic data-processing machines" in both of these 
concessions is in principle narrower than the phras e "products falling within this agreement" that 
appears in the FPDs narrative description. Howeve r, the issue before us, as reflected in the 
preliminary conclusions reached above requires us to assess the ordinary meaning of the term "for" in 
the FPDs narrative concession. We concluded that th e term "for" in the description meant that such 
devices must be designed for or capable of providing an acceptable level of operation, to fall within 
the concession.  Furthermore, we concluded prelim inarily that the text of the FPDs concession does 
not impose any exclusivity requirement with regard to which sources a flat panel display device could 
connect, nor did we determine a requirement as to w ith which connectors such a display may be fitted. 
7.526  In the context of interpreting the FPDs narrative description we are not required to interpret 
the terms "used with" as they appear in the "Proj ection type flat panel display units..." concession.  
Rather we are asked to consider wh ether they inform or shed light on our interpretation. We consider 
that the term "used with" is quite similar to "for", but the term "can" seems broader.  We also observe 
that the phrase "products falling within this agreemen t" is broader than the term "automatic data-
processing machines". 
7.527  With respect to the use of "for" in the "multi media upgrade kits for automatic data-processing 
machines...", we note that the concession is elabor ated in significant detail, referring not only to 
automatic data-processing machines, but specifically  to those types of automatic data-processing 
machines that fully comply with  the terms of the concession, e.g., those put up for retail sale, 
consisting of, at least, speakers and/or microphones as well as a printed circuit assembly that enables 
the ADP machines and units thereof to process audio signals. We again recall, WTO Members 
frequently choose to draft both precise, even exclusiv e terms and conditions to define a concession, as 
well as to draft concessions in broader terms. In our  view, given the considerable detail in which the 
concession is expressed as compared to the approach  used for the FPDs narrative description, we do 
not consider that this description assists us  with the interpretative issue before us. 
The WTO Schedules of other WTO Members  
7.528  The European Communities argues that the Sc hedules of other ITA participants provide 
relevant context to interpre t the FPDs narrative description.702 The Panel recalls that the Appellate 
Body explained in EC – Chicken Cuts , that other WTO Members' Schedules may provide relevant 
context to interpret the terms in a particular Member's Schedule.703 We will thus consider the 
European Communities' arguments concerning the HS subheadings that other ITA participants 
notified in the Schedules when implementing th eir ITA commitments. The European Communities 
refers to a table summarizing the classification up to  the HS subheading level (six digits) notified by 
                                                      
701 Exhibit US-7. 
702 European Communities' first written submission, paras. 142-145. 
703 Appellate Body Report, EC – Chicken Cuts , para. 193.  WT/DS375/R 
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  ITA participants based on modifications made via WTO document G/IT/2/Add.1 of 17 October 
1997:
704 
Classification of "Flat panel display devices (including LCD, Electro Luminescence, Plasma, Vacuum-
Fluorescence and other technologies) for products fallin g within this agreement and parts thereof" by ITA 
participants in 1997 
Sub-heading Number of participants  
classifying in that subheading Main parties to the dispute 
842490 1 - 
847149 7 US 
847160 24 EC, JA, TPKM, US 
847310 1 - 
847321 1 - 
847329 1 - 
847330 23 JA, US 
847340 1 - 
847350 1 - 
851790 1 - 
852290 1 - 
852821 3 JA 
852822 3 JA 
852990 3 JA 
853120 27 EC, JA, TPKM, US 
853180 15 EC, US 
853190 26 EC, JA, TPKM, US 
854389 6 US 
854390 8 US 
854890 1 - 
901320 4 JA 
901380 22 EC, JA, TPKM, US 
901390 22 EC, JA, TPKM, US 
901790 1 - 
 
Arguments of the parties 
7.529  The European Communities argues that the ITA participants' classification at the six-digit 
level of "flat panel display devices" in 1997 (as refl ected in the above table) demonstrates what ITA 
participants "understood" when commitments were made and approved by consensus.  The European 
Communities argues that the table shows that ITA participants considered not only HS subheading 
8471 60 which covers inter alia "ADP monitors", but also HS subheadings 8528 21 and 8528 22 
which cover "video monitors", as the "most relevant " codes for classifying FPDs.  It submits further 
that no ITA participant identified the codes for te levisions, whether 8528 12 or 8528 13, and that only 
Japan, Iceland and Macao consider that "flat pa nel display devices" covers "video monitors".705   
                                                      
704 WTO document G/IT/2/Add.1 (17 October 1997) (Exhibit EC-14). 
705 European Communities' first written submission, para. 144. According to the European 
Communities, if the Panel were to adopt the complainants ' view that the FPDs narrative description determines 
the scope of the concession, and not the HS headings /CN codes that were notified in connection with the 
description, then the table demonstr ates a number of WTO and ITA members have either made commitments 
without there being an obligation pursuant to the ITA, or there are a number of WTO breaches because of the 
differences in classification.  In its view, almost all parties would either have made unnecessary commitments WT/DS375/R 
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  7.530  The complainants  maintain the view that the language of the FPDs narrative description, and 
not the HS headings or tariff item numbers notified by ITA participants in their respective WTO Schedules, determines the scope of coverage of those products described in the concessions.
706 
Consideration by the Panel 
7.531  The Panel  recalls from paragraph 7.445 above that the 14 tariff item numbers next to the 
narrative descriptions in the EC Schedule do not li mit the concession.  They only illustrate where the 
European Communities considered relevant FPDs were classifiable at the time of implementation of 
the ITA.  Accordingly, we will only make a few poi nts regarding the table presented by the European 
Communities. 
7.532  The European Communities submitted as exhibits two separate WTO Secretariat reports that 
summarize the HS subheadings listed by ITA particip ants: the table above, describing the situation in 
1997, as well as a document assessing the practi ce of ITA parties between 1997 and 1999.707  Both the 
WTO Secretariat reports and the tables submitte d by the European Communities, however, wrongly 
mention that Japan notified HS headings next to  narrative product descriptions.  Japan's schedule, 
however, did not make mention of the headings.708    
7.533  In light of this error, the Panel conducted its  own assessment of the information as presented 
below:709 
HS 
subheading 
(up to six 
digits) Number of 
schedules 
listing the 
relevant 
subheading WTO Members/ITA participants that have listed at least one tariff line in 
their respective schedule: 
842490 1 Korea 
847149 14 Australia; Bahrain; Hong Kong, China; El Salvador; Indonesia; Korea; 
Oman; Peru; Philippines; Saudi Arabia; UAE; Ukraine; United States; Viet Nam 
847150 1 Saudi Arabia 
847160 33 Australia; Bahrain; Canada; Costa Rica; Croatia; Dominican Rep.; El 
                                                                                                                                                                     
and/or would be in breach of their obligations in respect of some product descriptions. (European Communities' 
first written submission, para. 145). 
706 United States' response to Panel question No. 116; Japan's second written submission, para. 160; 
Chinese Taipei's first written submission, para. 256; Chinese Taipei's second written submission, para. 178.  
Japan submits that any notified codes or headings many at most serve to "illustrate" the range of products that might fall within the scope of the narrative description.  Chinese Taipei argues that the codes may be used at 
most to "clarify" the meaning of the FPDs narrative description. 
707 These are WTO document G/IT/2/Add.1 (17 October 1997) (Exhibit EC-14) and document 
G/IT/2/Add.1/Rev.1 (29 July 1999) (Exhibit EC-20).  Both documents were prepared based on the ITA 
participants' schedules of commitments, while the latt er document contains updated information, including the 
addition of data for participants that had joined the ITA following the issuance of the first report, as well as changes that were implemented by particip ants as rectifications or modifications. 
708 See paragraph 7.432 above. 
709 The Panel followed the same methodology used by the WTO Secretariat in pr eparing this table. A 
particular Member is listed next to those HS subheadings  if that Member has listed at least one national tariff 
line in its schedule that falls under that HS subheadi ng. The following table summa rizes the HS subheadings 
listed by the relevant 43 Members in their schedules of concessions, but does not include information on the schedules of those EC member States that are jointly represented by the EC-27. These are: Bulgaria, Cyprus, 
Czech Republic, Estonia, Latvia, Lithuania, Pola nd, Romania, Slovak Republic and Slovenia.    WT/DS375/R 
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  HS 
subheading 
(up to six 
digits) Number of 
schedules 
listing the 
relevant 
subheading WTO Members/ITA participants that have listed at least one tariff line in 
their respective schedule: 
Salvador; European Communities; Egypt; Guatemala; Hong Kong, China; 
Honduras; Indonesia; Indi a; Iceland; Jordan; Kyrgyz Rep.; Korea; Macao, 
China; Moldova; Nicaragua; New Zealand; Oman; Peru; Philippines; Saudi 
Arabia; Chinese Taipei; Singapore; Switzerland/Liechtenstein; Turkey; 
Ukraine; UAE; United States 
847190 1 Egypt 
847310 1 Korea 
847321 2 Honduras; Norway 
847329 2 Honduras; Norway 
847330 31 Albania; Australia; Bahrain; Canada; Costa Rica; Croatia;  El Salvador; 
European Communities; Georgia; Hong Kong, China; Honduras; Indonesia; 
India; Iceland; Jordan; Kyrgyz Re p.; Korea; Macao, China; Moldova; 
Nicaragua; Norway; New Zealand; Oman ; Peru; Saudi Arabia; Singapore; 
Switzerland/Liechtenstein; Turkey; Ukraine; UAE; United States 
847340 1 Korea 
847350 2 Honduras; Norway 
851790 1 Hong Kong, China 
852290 1 Korea 
852821 2 Iceland; Macao, China 
852822 2 Iceland; Macao, China 
852990 2 Iceland; Macao, China 
853120 40 Albania; Australia; Bahrain; Canada; China; Costa Rica; Croatia; 
Dominican Rep.; El Salvador; European  Communities; Georgia; Guatemala; 
Hong Kong, China; Honduras; Indonesi a; India; Iceland; Israel; Jordan; 
Kyrgyz Rep.; Korea; Macao, China;  Moldova; Malaysia; Nicaragua; 
Norway; New Zealand; Oman; Peru; Philippines; Saudi Arabia; Chinese Taipei; Singapore; Switzerland/Liechte nstein; Thailand; Turkey; Ukraine; 
UAE; United States; Viet Nam 
853180 22 Albania; Australia; Bahrain; Canada; Croatia; El Salvador; European 
Communities; Georgia; India; Israel; Kyrgyz Rep.; Moldova; Norway; New 
Zealand; Oman; Saudi Arabia; Switzerland/Liechtenstein; Turkey; Ukraine; 
UAE; United States; Viet Nam 
853190 37 Albania; Australia; Bahrain; Canada; China; Costa Rica; Croatia; 
Dominican Rep.; El Salvador; European  Communities; Georgia; Guatemala; 
Hong Kong, China; Honduras; Indonesi a; India; Iceland; Israel; Jordan; 
Kyrgyz Rep.; Macao, China; Moldova ; Malaysia; Nicaragua; Norway; New 
Zealand; Oman; Peru; Saudi Arabia; Chinese Taipei; Singapore; Switzerland/Liechtenstein; Turkey; Ukraine; UAE; United States; Viet Nam 
854190 1 Mauritius 
854389 11 Australia; Bahrain; El Salvador; Hong Kong, China; Indonesia; Oman; 
Philippines; Saudi Arabia; UAE; United States; Viet Nam 
854390 12 Australia; Bahrain; El Salvador; Hong Kong, China; Indonesia; Korea; 
Oman; Philippines; Saudi Arabia; Singapore; UAE; United States 
854890 2 Canada; Viet Nam 
901320 3 Iceland; M acao, China; Norway 
901380 28 Albania; Australia; Bahrain; Canada; Croatia; El Salvador; European 
Communities; Georgia; India; Iceland; Israel; Jordan; Kyrgyz Rep.; Korea; 
Macao, China; Moldova; Malaysia; Norway; New Zealand; Oman; Saudi Arabia; Chinese Taipei; Switzerland/Li echtenstein; Turkey; Ukraine; UAE; 
United States; Viet Nam WT/DS375/R 
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  HS 
subheading 
(up to six 
digits) Number of 
schedules 
listing the 
relevant 
subheading WTO Members/ITA participants that have listed at least one tariff line in 
their respective schedule: 
901390 28 Albania; Australia; Bahrain; Canada; Croatia; El Salvador; European 
Communities; Georgia; India; Iceland; Israel; Jordan; Kyrgyz Rep.; Korea; Macao, China; Moldova; Malaysia; Norway; New Zealand; Oman; Saudi 
Arabia; Chinese Taipei; Switzerland/Li echtenstein; Turkey; Ukraine; UAE; 
United States; Viet Nam 
901790 1 Korea 
 
7.534  This table demonstrates considerable diverg ence in the HS subheadings listed by ITA 
participants next to the FPDs narrative descrip tion.  HS1996 subheading 8531 20, for instance, 
appears in most of the ITA participants' Schedules.710  This subheading pertains to "Electric sound or 
visual signalling apparatus (for example, bells, sirens , indicator panels, burglar or fire alarms), other 
than those of headings 8512 or 8530 - Indicator pa nels incorporating liquid crystal devices (LCD) or 
light emitting diodes (LED)". The following HS1996 subhead ings also appear in many of participants' 
Schedules:  
8471 60 :  Automatic data-processing machines and units thereof; magnetic or optical 
readers, machines for transcribing data onto data media in coded form and machines 
for processing such data, not elsewhere specified or included; - Input or output units, 
whether or not containing storage units in the same housing. 
8473 30 : Parts and accessories of the machines of heading 8471. 
8531 90 : Electric sound or visual signalling a pparatus (for example, bells, sirens, 
indicator panels, burglar or fire alarms), other than those of heading 8512 or 8530; - 
Parts. 
9013 80 : Liquid crystal devices not constitu ting articles provided for more 
specifically in other headings; lasers, other than laser diodes; other optical appliances 
and instruments, not specified or included el sewhere in this Chapter; - Other devices, 
appliances and instruments. 
9013 90 : Liquid crystal devices not constitu ting articles provided for more 
specifically in other headings; lasers, other than laser diodes; other optical appliances 
and instruments, not specified or included elsewhere in this Chapter; - Parts and 
accessories. 
7.535  The Panel's assessment of ITA participants ' Schedules reveals that HS1996 subheading 
8471 60 was one of the subheadings that appear s most frequently in connection with the FPDs 
narrative description.711  Their inclusion of subheading 8471 60 supports the view that a substantial 
proportion of ITA participants considered that at least some flat panel display devices were "input or 
output units" of automatic data-processing machines, but it also shows that many Members considered 
that flat panel display devices were classifiable under other headings. As emphasized by the European 
                                                      
710 Egypt, Japan and Mauritius did not list HS subheading 8531 20 as relevant for FPDs. 
711 The following Members did not list HS Subheading 8471 60 in connection with the FPDs narrative 
description:  Albania; China; Georgia; Israel; Japan; Malaysia; Mauritius; Norway; Thailand; and Viet Nam.  WT/DS375/R 
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  Communities, none of the ITA participants notifie d HS subheadings 8528 12 or 8528 13 pertaining to 
televisions. Two Members listed HS subheadings 85 28 21 and 8528 22 pertaining to video monitors, 
however, suggesting that at least some Members cons idered the ITA covered certain video monitors.   
7.536  We confirm that we do not consider the tari ff item numbers listed next to the product 
descriptions as definitive with respect to th e concession for FPDs. The information above, 
demonstrating the varied approaches for classifying FPDs supports our approach that it is the product 
description that governs for Attachment B products. 
(v) Object and purpose 
Arguments of the parties
 
7.537  The complainants note that a recognized object and purpose of the WTO Agreement  and 
GATT 1994 is providing security and predictably in  the reciprocal and mutually advantageous 
arrangements directed to the substantial reduction of tariffs and barriers to trade.712  The complainants 
also note that both the WTO Agreement  and the GATT 1994 recognize "expanding the production and 
trade in goods" as another core object and purpose that is furthered by reciprocal reductions in tariffs.  
7.538  In addition, the complainants argue that the IT A may be relevant in analysing the object and 
purpose of the GATT 1994 because the ITA is an instrument related to the GATT 1994.713 The 
United States  argues that provisions in the ITA contradict the view that a digital product should no 
longer be entitled to duty-free treatment simply  because technology adva nces and that product 
acquires additional features previously associated with  other products.  In its view, the ITA contains a 
number of mechanisms to encourage technological  development, including broad product coverage 
and Attachment B.714 Japan  submits that the overarching object and purpose of the WTO Agreement  
and the GATT 1994 has been reinforced  in the specific context of the ITA. In particular, Japan cites 
the Ministerial Declaration on Trade in Informa tion Technology Products which expressed the desire 
"to achieve maximum freedom of world tr ade in information technology products."715 Japan considers 
that, it would be inconsistent with the object and purpose of the WTO Agreement  and the GATT 1994 
to reduce tariffs on a particular product, only to permit the re-imposition of those tariffs simply 
because of some evolution in that product.716   
7.539  Furthermore, the complainants argue that th e objectives of security and predictability also 
require that concessions cover products even if they  did not exist in that form at the time the 
concessions had been granted to the extent that they comply with the wording of the concessions 
concerned.  Japan posits that the concession must c over all devices that fit s quarely within its terms 
regardless of how their other functiona lity may change or improve over time.717  Chinese Taipei  
                                                      
712 Complainants' response to Panel question No. 1; Japan's first written submission, paras. 172 (citing 
paragraph 3 of the Preamble to the Marrakesh Agreement; Panel Report on China – Auto Parts , para. 7.460 and 
Appellate Body Report on EC – Chicken Cuts , para. 243) and 288; Japan's second written submission, paras. 
409-410; Chinese Taipei's first written submission, paras.  144-145; Chinese Taipei's second written submission, 
para. 282. 
713 United States' response to Panel question No. 1; Chinese Taipei's response to Panel question No. 1; 
Chinese Taipei's second written submission, para. 15. 
714 United States' second written submission, paras. 60-61. 
715 Japan's first written submission, paras. 173 (citi ng Ministerial Declaration,  WT/MIN(96)/16 adopted 
13 December 1996, at Preamble, Page 1, Clause 4) and 29 0; Japan's response to Pa nel question No. 1; Japan's 
second written submission, para. 411. 
716 Japan's first written submission, paras. 290-292; Japan's second written submission, paras. 411-413. 
717 Japan's first written submission, para. 177. WT/DS375/R 
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  argues that to promote such security and predictab ility, in the first place, the interpretation of a 
concession is to be limited by th e terms used in that concession.
718  Chinese Taipei argues that it 
would run counter to such objec tives if the European Communities could exclude from the scope of 
its concessions some apparatus just because they ar e more complete or more developed than when 
they initially existed.719   
7.540  The European Communities  argues that the Panel should not conflate the object and purpose 
of the ITA with that of the WTO Agreement .  Furthermore, the European  Communities argues that the 
expansion of trade must be achieved through mutu ally advantageous arrangements. The European 
Communities submits that there is no interpretativ e principle whereby tariff concessions must be 
broadly construed in order to promote the expa nsion of trade between Members. The European 
Communities considers the complainants' interpreta tive approach is overbroad and compromises the 
legal certainty and predictability of tariff concessi ons, creating the risk that Members will become 
reluctant to pursue the ITA liberalization process. 720 
Consideration by the Panel  
7.541  Article 31(1) of the Vienna Convention provides that: 
"A treaty shall be interpreted in good faith  in accordance with the ordinary meaning 
to be given to the terms of the treaty in their context and in the light of its object and purpose." 
7.542  Article 31(1) of the Vienna Convention  thus requires that a treaty must be interpreted in light 
of that particular treaty's object and purpose.  The Appellate Body in EC – Chicken Cuts  explained 
that the "starting point for ascertaining 'object and purpose' is the treaty itself, in its entirety.
721  As we 
stated in paragraph 7.16 above, under Article  II:7 of the GATT 1994 and Article II:2 of the WTO 
Agreement , the concessions contained in the EC Schedule,  including the Annex to the EC Schedule, 
are treaty terms of the GATT 1994 and the WTO Agreement .   
7.543  Accordingly, the Panel considers that the object a nd purpose that is relevant to our analysis is 
the object and purpose of the treaty that is the subject of this dispute, namely the WTO Agreement , of 
which the GATT 1994 and the EC Schedule are an integr al part.  As stated in the preamble of the 
WTO Agreement , one of the purposes is to "expand[] ... trade in goods and services".  Members 
should contribute to this objective "by entering into reciprocal and mutually advantageous arrangements directed to the substantial reducti on of tariffs and other barriers to trade".   
7.544  Although the concessions in the EC Schedule are an integral part of the treaty, we also recall 
the Appellate Body's explanation that treaty inte rpreters should not place too much weight on the 
object and purpose of a particular concession in a Member's schedule, because "one Member's unilateral object and purpose for the conclusion of a tariff commitment cannot form the basis' for an 
interpretation of that commitment, because interpre tation in the light of Articles 31 and 32 of the 
Vienna Convention must focus on ascertaining the common intentions of the parties."
722 
                                                      
718 Chinese Taipei's first written submission, pa ras. 289-290; Chinese Taipei's second written 
submission, para. 444. 
719 Chinese Taipei's first written submission, paras. 627-630. 
720 European Communities' first written submission, paras. 170-172. 
721 Appellate Body Report on EC – Chicken Cuts , paras. 238-239. 
722 Appellate Body Report on EC – Chicken Cuts , paras. 238-239.  WT/DS375/R 
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  7.545  With respect to the relationship between th e object and purpose of the GATT 1994 generally 
and a Member's tariff concessions in particular, the Appellate Body held in Argentina - Textiles and Apparel  that: 
"a basic object and purpose of the GATT 1994,  as reflected in Article II, is to 
preserve the value of tariff concessions negotiated by a Member with its trading partners, and bound in that Member's Sc hedule.  Once a tariff concession is agreed 
and bound in a Member's Schedule, a re duction in its value by the imposition of 
duties in excess of the bound tariff rate would upset the balance of concessions 
among Members."
723 
7.546  In EC – Computer Equipment , the Appellate Body confirmed that the security and 
predictability of the reciprocal and mutually advantageous arrangement s directed toward the 
substantial reduction of tariffs a nd other barriers to trade is a recognized object and purpose of the 
WTO Agreement , generally, as well as of the GATT 1994.724 
7.547  We thus consider that tariff concessions made  by WTO Members should be interpreted in 
such a way as to further the objectives of preserving and upholding the "security and predictability" of 
"the reciprocal and mutually adva ntageous arrangements directed to the substantial reduction of tariffs 
and other trade barriers to trade". This includes cons ideration of the general objective of the expansion 
of trade and the substantial reduction of tariffs. Ho wever, a panel should take care not to disturb the 
balance of reciprocal and mutually adva ntageous concessions negotiated by parties.725 
7.548  In this case, the complainants have also argued that provisions of the ITA, a plurilateral 
agreement that is separate from the WTO Agreement , are relevant in determining the object and 
purpose of the WTO Agreement .726 We do not agree. While the WTO Agreement  represents a mutual 
agreement among all WTO Members, the ITA constitu tes a separate plurilateral arrangement made 
among a subset of WTO Members and states and customs territories acceding to the WTO.  Due to 
the application of the MFN principle and Article II of the GATT 1994, the duty bindings and 
eliminations agreed to by the ITA participants we re also extended to all WTO Members.  However, 
that does not mean that the objectiv es of the ITA participants of havi ng participants' tariff regimes 
"evolve" in a manner that "enhances market access for information technology products"727, or 
"achiev[ing] maximum freedom of world trad e in information technology products" and 
"encourag[ing] the continued technological developm ent of the information technology industry on a 
world-wide basis"728 – can be considered a basis for determining the object and purpose of the WTO 
Agreement  and the GATT 1994. The ITA participants are a subset of the memb ership as a whole and 
their intentions with respect to an agreemen t amongst themselves, while relevant context for 
understanding the concessions they have made, are not material to a determination on the object and 
purpose of the WTO Agreement  and the GATT 1994.   
7.549  In summary, the relevant object and purpose is the general object and purpose of the WTO 
Agreement  as a whole, including the GATT 1994, which is  to provide security and predictability in 
the reciprocal and mutually advantageous concessions  negotiated by parties for the reduction of tariffs 
                                                      
723 Appellate Body Report on Argentina – Textiles and Apparel , para. 47; Panel Report on 
EC - Chicken Cuts , para. 7.319. 
724 Appellate Body Report on EC – Computer Equipment , para. 82; Panel Report on EC - Chicken Cuts , 
para. 7.318. 
725 See also Panel Report on EC – Chicken Cuts , para. 7.320. 
726 Japan's first written submission, paras. 173-176.  complainants' responses to Panel question No. 1. 
727 Para.1 of the ITA. 
728 Preamble of the ITA. WT/DS375/R 
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  and other barriers to trade.  In the Panel's view , the interpretation of the FPDs narrative description 
described above is fully consiste nt with this object and purpose. 
(vi) Subsequent practice (Article 31(3)(b) of the Vienna Convention ) 
7.550  The European Communities argues that the sp ecific classification practice of the United 
States and the practice of ITA participants between  1997 and 1999 provide ot her relevant means to 
interpret the FPDs narrative description.
729 The European Communities compares the table that 
appears in paragraph 7.528 above, wh ich refers to HS subheadings no tified by ITA participants made 
in 1997, with the following table reflecting the HS  subheadings notified by ITA participants in 
connection with the FPDs narrative description in 1999:730 
Classification of "Flat panel display devices (including LCD, Electro Luminescence, Plasma, Vacuum-
Fluorescence and other technologies) for products falling within this agreement, and parts thereof" by ITA 
participants in 1999 
Sub-heading Number of participants  
classifying in that subheading Main parties to the dispute 
8424 90 1 - 
8471 49 7 US 
8471 60 28 EC, JA, TPKM, US 
8473 10 1 - 
8473 21 1 - 
8473 29 1 - 
8473 30 27 EC, JA, US 
8473 40 1 - 
8473 50 1 - 
8517 90 1 - 
8522 90 1 - 
8528 21 3 JA 
8528 22 3 JA 
8529 90 3 JA 
8531 20 32 EC, JA, TPKM, US 
8531 80 18 EC, US 
8531 90 29 EC, JA, TPKM, US 
8541 90 1 - 
8543 89 6 US 
8543 90 8 US 
8548 90 1 - 
9013 20 4 JA 
9013 80 26 EC, JA, TPKM, US 
9013 90 26 EC, JA, TPKM, US 
9017 90 1 - 
 
7.551  In addition, Chinese Taipei argues that the Eu ropean Communities had consistently classified 
LCD flat panel displays in duty-free heading 8471 until 2004.731 Since 2004 and 2005, however, 
                                                      
729 European Communities' first written submission, paras. 174-177. 
730 Exhibit EC-20. 
731 Chinese Taipei's first written submission, paras. 291  and 295 (referring to BTIs classifying FPDs in 
duty-free heading 8471) (Exhibit TPKM-54).  WT/DS375/R 
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  Chinese Taipei argues, the European Commun ities gradually began imposing duties on these 
products.
732  Chinese Taipei submits that not all EC member States conformed with this approach.733 
7.552  The Panel will consider the parties' views below. 
Arguments of the parties  
Classification practice of the United States 
7.553  Citing a publication entitled " What Every Member of the Trade Community Should Know 
About: Classification of Flat Panel Displays "734, the European Communities  argues that the United 
States has taken the same approach to limit classifi cation of ADP monitors to certain sizes and pixel 
size configurations. The European Communities subm its that the United States itself classifies the 
kind of monitors that the European Communitie s understands to be relevant to this case as video 
monitors or televisions  and not as output units of an ADP mach ine.  In this respect, the European 
Communities submits that "customs officials of th e United States have previously classified a number 
of different multifunctional LCD monitors as vide o monitors pursuant to GIR 3(c)", including 
products of various sizes, with or withou t a TV tuner, and with DVI connectors.735 
7.554  The United States  argues that its supposed classificati on practice provides no support for the 
European Communities' view that its measures are consistent with its obligations, nor does it indicate 
any particular "practice" on the part of the United States regarding monitors.736   
Classification practice of ITA participants between 1997 and 1999 
7.555  The European Communities  argues that the classification practice of ITA participants 
between 1997 and 1999, as referred to in WTO document G/IT/2/Add.1/Rev.1 of 29 July 1999737, 
provides information on classification divergences, incl uding those of new participants that joined the 
ITA since 1997.  The European Co mmunities argues that these data demonstrate a tendency towards 
an increasing agreement on classification, with  the exception of HS 1996 subheading 8541 90.738 
                                                      
732 Chinese Taipei's first written submission, para . 292 (referring to Commission Regulation Nos. 
754/2004 and 2147/2004 for plasma FPDs). 
733 Chinese Taipei's first written submi ssion, paras. 291, 298-299 and 304. 
734 Exhibit EC-18. 
735 European Communities' first written submission,  paras. 174-175 (referring to Ruling of the 
Commercial and Trade Facilitation Division, US Custom s and Border Protection ( 15 December 2006) (Exhibit 
EC-19)). 
736 United States' second written submission, para. 96 (The United States argues that the classification 
of "LCD modules" – identified by the European Communities in Exhibit EC- 18 – is not at issue in this dispute.  
Second, it argues, the reference to a single classifica tion ruling by Customs and Border Protection in Exhibit 
EC-18, strictly illustrates that United States' customs authorities apply the "principal use" test when considering 
the objective characteristic s of a product.  The United States argues that application of a principal use test is not 
allowed under the EC measures at issue.  Moreover, it argues that one classificati on instance does not support 
the view that the EC measures at issue are consistent, no r does it indicate a particular "practice" on the part of 
the United States regarding monitors). 
737 Exhibit EC-20. 
738 European Communities' first written submission, para. 177.  In concluding on the data, the European 
Communities states: 
"[T]he number of participants identifying sub-headings 8471 60, 8473 30, 8531 20, 8531 80, 8531 90, 9013 80 and 9013 90 had increased while all the other headings where the number of 
participants was below 10 and often only one or a few remained stable.  Still no participants WT/DS375/R 
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  7.556  The complainants argue that the European Communities' description of where it or other ITA 
participants classify products that fall within th e FPDs narrative description is irrelevant since the 
concession applies to a product wherever that product is classified.
739  In addition, Japan argues that 
the presented data cannot be "subsequent practice" in the sense of Article 31(3)(b) of the Vienna 
Convention because too few countries are invol ved and the practice is not consistent.740  Chinese 
Taipei  argues that the only conclusion that can be take n from this "so-called" practice of ITA parties 
is that ITA participants did not share a common classification.741 
Consideration by the Panel  
7.557  Article 31(3)(b) of the Vienna Convention  states: 
"3. There shall be taken into account, together with the context: (b) any subsequent practice in the appli cation of the treaty which establishes the 
agreement of the parties regarding its interpretation." 
7.558  The Appellate Body in EC – Chicken Cuts observed that "'subsequent practice' in the 
application of a treaty may be an important el ement in treaty interpretation because 'it constitutes 
objective evidence of the understanding of th e parties on the meaning of the treaty'."
742  The Appellate 
Body based its comments on its earlier interpretation in Japan – Alcoholic Beverages II  that 
"subsequent practice" within the meaning of Ar ticle 31(3)(b) entails "...'concordant, common and 
consistent' sequence of acts or pronouncements wh ich is sufficient to establish a discernible pattern 
implying the agreement of the parties [to a treaty] regarding its interpretation".743  Moreover, the 
Appellate Body noted in US – Gambling  that "subsequent practice" involves two elements: "...(i) there 
must be a common, consistent, discernible pattern of acts or pronouncements; and (ii) those acts or 
pronouncements must imply agreement on the interpretation of the relevant provision".744  We recall 
the statement by the Appellate Body in EC – Computer Equipment  that "[i]nconsistent classification 
practice, however, cannot be relevant in in terpreting the meaning of a tariff concession".745 
7.559  In establishing what may qualify as "common" a nd "concordant" practice,  the Appellate Body 
stated that, although not each and every party must have engaged in a particular practice for it to 
qualify as a "common" and "concor dant" practice, it would be difficult to establish a "concordant, 
common and discernible pattern" on the basis of acts or pronouncements of one, or very few parties to 
                                                                                                                                                                     
identified the relevant sub-headings for te levisions and only Japan, Iceland and Macao 
continued to identify video monitors as falling within the scope of the product definition of 'flat panel display devices (…)'. The continued important classification differences between 
the complainants ar e also noteworthy." 
(European Communities' first written submission, para. 177). 
739 United States' second written submission, paras. 95-96; Japan's second written submission, para. 32; 
Japan's second written submission, paras. 180-181; Chin ese Taipei's second written submission, para. 205.  
Japan recalls its view that the codes are "illustrative" onl y, and represent a "range of products covered by the 
concession itself" (Japan's second written submission, para. 181). 
740 Japan's second written submission, para. 32; Japan's second written submission, para. 180.   
741 Chinese Taipei's second written submission, paras. 205-206. 
742 Appellate Body Report on Chicken Cuts , para. 255 (citing Yearbook of the International Law 
Commission (1966), Vol. II, page 219, para. (6)); see also Panel Report on China – Auto Parts , para. 7.702. 
743 Appellate Body Report on Japan – Alcoholic Beverages II , para. 106. 
744 Appellate Body Report on US – Gambling , para. 192. 
745 Appellate Body Report on EC – Computer Equipment , para. 95.  WT/DS375/R 
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  a multilateral treaty , such as the WTO Agreement .
746  The Appellate Body further found that if only 
some WTO Members have actually engaged in a certain practice, that circumstance may reduce the availability of such "acts and pronouncements" for purposes of determining the existence of 
"subsequent practice" within the meaning of Ar ticle 31(3)(b) of the Vienna Convention.   
7.560  The Appellate Body moreover noted that it s hould not be determined that "subsequent 
practice" under Article 31(3)(b) "has been established by  virtue of the fact that the Panel '[h]ad not 
been provided any evidence to indicate that WTO Members protested against the EC classification 
practice in question ..."
747  In this respect, the Appellate Body noted as follows: 
"...'lack of reaction' should not lightly, without further inquiry into attendant 
circumstances of a case, be read to imply agreement with an interpretation by treaty 
parties that have not themselves engaged in  a particular practice followed by other 
parties in the application of the treaty.   This is all the more so because the 
interpretation of a treaty provision on the basis of subsequent practice is binding on 
all parties to the treaty, including those that have not actually engaged in such a 
practice".748 
7.561  Accordingly, on the basis of guidance provided by the Appellate Body on the assessment of 
subsequent practice for interpreting a treaty provisi on, the Panel will now consider whether there is 
evidence of "consistent, common and concordant" cl assification practice for flat panel display devices 
on the part of the ITA participants and with respect  to the products at issue during the period since the 
conclusion of the ITA. 
7.562  The parties submitted the following evidence c oncerning Members' classification practice 
following the conclusion of the ITA:  
(a) the summary table that appears in para graph 7.528 above, which refers to HS 
subheadings notified by ITA participants  in connection with the FPDs narrative 
description in 1997749;  
(b) the summary table that appears in para graph 7.550 above, which updates the HS 
subheadings notified by ITA participants  in connection with the FPDs narrative 
description in 1999750;   
(c) a publication of the United States' Customs authorities entitled " What Every Member 
of the Trade Community Should Know A bout: Classification of Flat Panel 
Displays "751; and  
(d) a publication of the United States' Customs and Border Protection regarding 
classification of certain multifunctional LCD monitors752.   
7.563  The Panel is of the view that the eviden ce submitted by the European Communities in 
paragraphs 7.528 and 7.5 50 above is not relevant in assessing "subsequent practice" within the 
                                                      
746 Appellate Body Report on EC – Chicken Cuts, para. 259. 
747 Appellate Body Report on EC - Chicken Cuts , para. 272. 
748 Appellate Body Report on EC - Chicken Cuts , para. 273. 
749 WTO document G/IT/2/Add.1 (17 October 1997) (Exhibit EC-14). 
750 WTO document G/IT/2/Add.1/Rev.1 (29 July 1999) (Exhibit EC-20). 
751 Exhibit EC-18. 
752 Exhibit EC-19. WT/DS375/R 
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  meaning of Article 31(3)(b) of the Vienna Convention.   We recall that WTO documents G/IT/2/Add.1 
of 17 October 1997 and G/IT/2/Add.1/Rev.1 of 29 July 1999
753, which form the basis for the table in 
paragraphs 7.528 and 7.550 above, reflect the particul ar HS subheadings that ITA participants notified 
in their respective WTO Schedules in 1997 and 1999  and were meant to assist participants in 
narrowing down the divergences in classification.754 Although these tables may reflect the HS 
subheadings that ITA participants considered relevant  to classification at the time they modified their 
schedules to reflect ITA-related concession, it cannot  be ascertained that these codes reflect the actual 
"practice" of these Members without consideration of further evidence, which has not been presented 
for all the Members.  In many cases, Members notified multiple codes next to a particular 
Attachment B description.  Thus, it is not entirely cl ear what practice has been adopted in these cases.  
It is also not clear from these tables whether Member s are in fact classifying products, such as those at 
issue in this dispute, in other headings that do no t appear in the tables or documents.  In our view, 
information derived from other Members' schedules should more properly be a ssessed as context under 
Article 31(1) of the Vienna Convention, as the Panel has done in paragraphs 7. 528 and 7.550 above.  
Thus, we do not find this information useful for ou r present purposes and, hence, we refrain from 
elaborating further on these tw o tables or the documents on which the tables are based. 
7.564  We next turn to the two documents presente d by the European Communities concerning US 
classification for the products at issue: (i) the p ublication of the United States Customs and Border 
Protection, entitled " What Every Member of the Trade Comm unity Should Know About: Classification 
of Flat Panel Displays "755, and (ii) a publication of the United States' Customs and Border Protection, 
Commercial and Trade Facilitation Divi sion (HQ W966995) from 15 December 2006756.  The 
document "What Every Member of the Trade Community Should Know About: Classification of Flat Panel Displays" sets out the US Customs Services' position on interpretation of HS heading 8471, and 
provides "guidelines" to use "when classifying all flat panel display modules".
757  In particular, it 
discusses the application of principal/sole use with  respect to "specific size flat panel display 
modules" that "are principally used in ADP systems and conform to industry standards".758  The 
second document of the United States' Customs a nd Border Protection, Commercial and Trade 
Facilitation Division discusses classification of a certain multifunctional LCD monitors "ranging inter 
alia from 15 inch to 24 inch, with or without a TV tuner, DVI and/or S-Video etc connectors, VESA 
compliant etc", and resorts to GIR 3(c) in certain cases.759   
                                                      
753 Exhibits EC-14; EC-20. 
754 The introductory paragraphs to each of these do cuments indicates that "[t]o aid participants in 
considering divergences in classifying information technology products, the Secretariat has compiled the various 
classifications of Attachment B items in document  [G/IT/2, respectively in document G/IT/2 and in 
G/IT/2/Add.1]". The introductory paragraphs further simi larly provide that "[t]he attached table was prepared 
from participants' schedules of commitments to provide this information". (See WTO document G/IT/2/Add.1 
(17 October 1997) (Exhibit EC-14) and WTO document G/IT/2/Add.1/Rev.1, paras. 1-2; (Exhibit EC-20)). The 
latter document further provides that "[a]t the meeting of 6 July 1999 it was requested that document G/IT/2/Add.1 be updated in order to provide the latest information on classification divergences" (see Exhibit 
EC 20, p.1, para. 1). 
755 Exhibit EC-18. 
756 Exhibit EC-19. 
757 Exhibit EC-18, p. 3. 
758 Exhibit EC-18, p. 4. 
759 Exhibit EC-19, pp. 8-20.  The Commercial and Trade Facilitation Division document discusses a 
number of factors that economic operators should consider in determining whether a monitors is of a kind used 
principally with an automatic data-processing machine, including: physical characteristics, such as brightness; 
synchronization configuration; VESA-compliant mounting f eatures; scalers; response time; size; the expectation 
of the ultimate purchaser; the channels of trade; th e environment of sale, such as accompanying accessories,  WT/DS375/R 
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  7.565  The panel is of the view that this evidence is insufficient to enable us to draw conclusions 
about the "consistency" of the United States classifica tion practice in this regard.  We do not consider 
it appropriate to extrapolate on the relatively limit ed evidence provided in consideration of the 
potential range of different products that may be  classifiable under HS subheading 8471 60 or under 
other headings discussed in this dispute, such as HS subheading 8528.  We observe that it is 
incumbent on a party asserting the existence of a "common" and "concordant" practice among WTO Members to provide sufficient evidence – which clearly is something beyond a handful of classification exercises in one Member – to estab lish such a "consistent, common and concordant" 
classification practice.  The European Communities has not met this burden here. 
(vii) Other arguments 
7.566  We recall that recourse may be had to s upplementary means of interpretation may be 
consulted in order to confirm the meaning resulting from the application of Article 31 of the Vienna 
Convention, or to determine the meaning when th e interpretation according to Article 31 leaves the 
meaning ambiguous or obscure or leads to a resu lt which is manifestly absurd or unreasonable.
760   
7.567  We have found, in interpreting the European Communities' commitment on FPDs in 
accordance with Article 31 of the Vienna Conventi on, that the FPDs concession covers a range of 
non-CRT technologies, including other technologies not  actually identified, without limitation on 
technical characteristics, such as screen size or the presence of certain connectors. We have also found that the concession does not require that such de vices are used exclusively with automatic data-
processing machines or other ITA products.   
7.568  There is a disagreement as to whether resort to Ar ticle 32 is appropriate in this case.  We will 
assume it is appropriate for purposes of analyzin g the European Communities' position.  To the 
extent, the European Communities' views are rele vant, we would consider the appropriateness of 
Article 32 to our analysis. Therefore, we will exam ine, first, documents th at negotiators allegedly 
relied on when drafting the ITA agreement; second,  documents surrounding ITA II negotiations; and 
finally, evidence of the existence of certain technol ogies at the time of the conclusion of the ITA. 
Landscape papers submitted during negotiation of the ITA
 
Arguments of the parties 
7.569  The European Communities  submits that elements of the "landscape papers" submitted 
while negotiating the ITA, and comments on these papers, are "preparatory work" or "other 
supplementary means of interpretation" within the meaning of Article 32 of the Vienna Convention.  
The European Communities thus considers those docum ents relevant to determine the scope of the 
FPDs concession under its Schedule.761  The European Communities ar gues that these papers contain 
"a few guiding principles" and reflect "real events and exchanges" that reveal the negotiators' views 
on the scope of the FPDs narrative descriptions found in Attachment B of the ITA.762   
                                                                                                                                                                     
manner of advertisement and display; the usage of the merchandise; the economic practicability of so using the 
import; and the recognition in trade of this use. 
760 See para. 7.65 above. 
761 European Communities' first written submission, para. 23; European Communities' response to 
Panel question No. 12. 
762 European Communities' first written submission, para. 26; European Communities second written 
submission, para. 86. WT/DS375/R 
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  7.570  In particular, the European Communities argues th at some of the landscape papers reveal that 
the intent of negotiators was to focus on "current" product offerings and that "precise" definitions and 
coverage of "specific"  products were intended.
763 In addition, it argues that those landscape papers 
demonstrate that negotiators never intended for th e "flat panel display devices..." narrative description 
to cover any kind of monitors other than those specifically for computers.764 The European 
Communities submits that an early definition of "dis plays" in the ITA negotiations was subsequently 
revised to be more "general", as "displays, designed for use with computers, sometimes referred to as 
computer monitors".765  Subsequently, however, the European Communities contends that definitions 
began to distinguish between "flat panel displa ys ... for ADP output devices" and "monitors for 
computers".766 From then on, the European Communities argues, the flat panel display definition 
stabilized.767 Despite changes to the concession for "flat panel displays...", the European Communities 
argues that the description for "monito rs for computers" remained open.768 
7.571  The complainants  reject the view that any documents on which the European Communities 
relies, constitute preparatory work or other supplem entary means of interpretation within the meaning 
of Article 32 of the Vienna Convention.  Where th e ordinary meaning of the language is clear and 
makes sense when read in contex t, they argue, recourse to othe r means of interpretation are not 
appropriate.769  Further, they argue that the ITA does not have a formal "negotiating history" although 
a number of documents were prepared by various Members in the process of negotiating the ITA.770  
                                                      
763 European Communities' first written submission, para s. 24-25 (referring to Exhibits EC-2; EC-4).  
The European Communities refers to the following comment by the United States in a 12 March 1996 paper: 
"(…) The following list is an attempt to illustrate th e diversity and depth of the landscape of the ITA, 
with a focus on current product offerings . This preliminary list was prepar ed to stimulate discussion on 
establishing product coverage for the ITA. Specific products may need to be added within the general 
categories, and more precise definition of the products and product categories will be required . A more specific 
list should emerge from further discussions. (…)". (emphasis added) (Exhibit EC-2). 
764 European Communities' first written submission, para. 188. 
765 European Communities' first written submission, paras. 182-183 (referring to Facsimile 
communication of 28 March 1996 from the US authoritie s, Exhibit EC-3; Facsimile communication of 16 April 
1996 from the US authorities. Exhibit EC-23). The European Communities cites an early definition of 
"displays" was: 
"Displays designed for use with computers, sometimes referred to as computer monitors regardless of 
the size of the display area (h owever measured, large or small) and whether or not using a CRT or some flat 
screen technology such as AMLCD, EL, gas plasma, or one of the emerging technologies such as field emission 
displays. Touch sensitive displays for use as combined input/output units with computers are also covered." 
(Facsimile communication of 28 March 1996 from the US authorities. Exhibit EC-3). 
766 European Communities' first written submission, paras. 184-185 (referrin g to Technical Working 
Document QUAD Countries for consideration with regard to coverage of an Information Technology 
Agreement, 1 November 1996; Exhibit EC-24; referring to Technical Working Document with comments by QUAD Countries with regard to coverage of an Information Technology Agreement, 19 November 1996, 10:02; 
Exhibit EC-25). 
767 European Communities' first written submission, para. 186. 
768 European Communities' first written submission,  para. 185 (referring to Technical Working 
Document with comments by QUAD Countries with regard to coverage of an Information Technology 
Agreement, 25 November 1996 (Exhibit EC-27)). 
769 United States' second written submission, para. 97 ; Japan's second written submission, para. 32, 
referring to "Draft Articles on the Law of Treaties with commentaries 1966", at para. 18, pp. 222-23, Yearbook 
of the International Law Commission, 1966, Vol. II (Exhibit JPN-26); Chinese Taipei's second written 
submission, para. 26. 
770 Complainants' response to Panel question No. 12; Japan's second written submission, para. 31; 
Chinese Taipei's second written submissi on, para. 19.  The United States submits that the only records from the 
ITA negotiations that the participants directed the WTO Se cretariat to maintain were those referenced in note 4 
of G/L/160.  It argues, thos e records span the brief period between the conclusion of the ITA and the approval of  WT/DS375/R 
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  Japan  and Chinese Taipei argue that the landscape papers strictly constitute preparations or 
participants' own submissions in connection with the ITA, and are not the treaty or concessions at 
issue.
771  The United States argues that the "systemic implications" of considering documents that are 
from a single Member's files as negotiating history or surrounding circumstances would have the 
effect of reading Article 32 of the Vienna Convention  out of the treaty.772 Moreover, the United States 
and Chinese Taipei argue that the submitted landscape papers were not accessible to all participants to 
the ITA or the public, including notably, Chinese Taipei. Thus, they do not represent the common 
intention of all relevant parties.773   
7.572  The European Communities argues that the complainants cannot reject the landscape papers 
on the grounds that they were not made availabl e to all parties. According to the European 
Communities, such an argument is "manifestly disi ngenuous", in light of the participation of Japan 
and the United States in these discussions as Quad me mbers. The European Communities submits that 
bilateral or plurilateral negotiati ons prior to multilateralization is a "frequent" and "peculiar feature" 
of WTO tariff negotiations.  In its view, not considering these landscape papers would render the 
drafting history of many concessions "wholly irrelevant".774 
Consideration by the Panel 
7.573  The Appellate Body in EC – Chicken Cuts explained that an interpreter has certain flexibility 
in considering relevant supplem entary means in a given case so as to assist in ascertaining the 
common intentions of the parties."775  The supplementary means of interpretation, include, but are not 
limited to "the preparatory work of the treaty and the circumstances of its conclusion".  Thus a treaty 
interpreter has certain flexibility in considering re levant supplementary means in a given case so as to 
assist in ascertaining the common intentions of the parties."776 
7.574  The Appellate Body explained: 
"An 'event, act or instrument' may be  relevant as supplementary means of 
interpretation not only if it has actually infl uenced a specific aspect of the treaty text 
in the sense of a relationship of cause and effect; it may also qualify as a 'circumstance of the conclusion' when it he lps to discern what the common intentions 
of the parties were at the time of the conc lusion with respect to the treaty or specific 
provision".
777 
7.575  When determining how relevant a particular in strument or circumstance is for interpreting a 
specific treaty provision, the Appellate Body expl ained that a panel should consider a number of 
objective factors including: 
                                                                                                                                                                     
participants Schedules (Exhibit US-96).  It submits that  the material submitted by the European Communities is 
not contained in these documents (United States' response to Panel question No. 12). 
771 Japan's response to Panel question No. 12; Chinese Taipei's response to response to Panel question 
No. 12; Chinese Taipei's second written submission, paras. 19-25. 
772 United States' second written submission, paras. 45 and 97. 
773 United States' second written submission, para. 45; Chinese Taipei's second written submission, 
para. 20, referring to Appellate Body Report on EC – Chicken Cuts , para. 297, Young Loan Arbitration, 59 
I.L.R. 495 (1980) and Sir Ian Sinclair, The Vienna Convention  on the Law of Treaties , 2nd ed (Manchester 
University Press, 1984 quoted by the Panel in EC – Chicken Cuts : Panel Report, footnote 574. 
774 European Communities' response to Panel question No. 12. 
775 Appellate Body Report on EC – Chicken Cuts , para. 283. 
776 Appellate Body Report on EC – Chicken Cuts , para. 283. 
777 Appellate Body Report on EC – Chicken Cuts , para. 289. WT/DS375/R 
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  "[T]he type of event, document, or instru ment and its legal nature; temporal relation 
of the circumstance to the conclusion of the treaty; actual knowledge or mere access to a published act or instrument; subject matter of the document, instrument, or event 
in relation to the treaty provision to be inte rpreted; and whether or how it was used or 
influenced the negotiations of the treaty".
778 
7.576  Further in this respect, the Appellate Body st ated that instruments originating from individual 
parties should, at a minimum, be "officially published" and "publicly available" to qualify as a circumstance relevant for consideration under Article 32 of the Vienna Convention.
779  The Appellate 
Body noted that "proof of actual knowledge will increase the degree of relevance of a circumstance 
for interpretation".780 
7.577  The requirement that such material be officia lly published and publicly available would seem 
to ensure that all relevant parties, including not only those which participated in the negotiations, but 
also those which did not, have access to and ther efore knowledge of the negotiating history that may 
be used to interpret their obligations.   
7.578  We note that the "landscape papers" submitte d by the European Communities derive from 
discussions between the "Quad" countries.  We ar e not in a position to determine, based on the 
evidence before us, whether non-Quad participants , including Chinese Taipei, were privy to these 
discussions or had access to the documents.  The Eu ropean Communities itself appears to recognize 
the limited audience of these papers.781  The Panel notes the United States has called attention to 
Footnote 4 of document G/L/160, which mandated th e WTO Secretariat to maintain a set of the 
"informal documents exchanged by participants in cons ultations that led to the decisions taken at that 
meeting ".782 (emphasis added) However, we observe that the landscape papers submitted by the 
European Communities do not form part of this record.783  Finally, we note that the European 
Communities has not submitted evidence that the "l andscape papers" were communicated to all ITA 
participants or made available for consultation by interested delegations.  Even if they had done so, 
we recall that documents qualifying under Article 32 of the Vienna Convention must have been made 
available to all WTO Members and not simply to partic ipants to the ITA.  The European 
Communities maintains that Japan and the United Stat es as Quad members should have been aware of 
                                                      
778 Appellate Body Report on EC – Chicken Cuts , para. 291. 
779 This view is supported by reference to a standard understanding of travaux préparatoires  in public 
international law.  In particular, Ian Sinclair explains   
 "... recourse to travaux préparatoires does not depend on the participation in the drafting of 
the text of the State against whom the travaux are invoked. To hold otherwise would disrupt 
the unity of a multilateral treaty, since it would imply that two different methods of 
interpretation should be employed, the one for States who participated in the travaux préparatoires and the other for States who did not so participate. One qualification should, 
however, be made. The travaux préparatoires should be in the public domain so that States 
which have not participated in the drafting of the text should have the possibility of consulting them. Travaux préparatoires which are kept secret by negotiating States should not be capable 
of being invoked against su bsequently acceding States." 
Ian Sinclair, The Vienna Convention on the Law of Treaties , Manchester University Press, 2nd edition 
(1984) p. 144. 
780 Appellate Body Report on EC – Chicken Cuts , para. 297. 
781 European Communities' first written submission, para. 23; European Communities' response to 
Panel question No. 12. 
782 Exhibit US-96. 
783 The Panel would also note in this respect that the record maintained by the WTO Secretariat in 
accordance with document G/L/160 is limited and thus, sh eds limited light on the status of the documents 
submitted by the European Communities.  WT/DS375/R 
 WT/DS376/R 
 WT/DS377/R 
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  the documents, in particular, because some of the do cuments were authored by them.  However, this 
is not relevant as criteria for determ ining their relevance under Article 32. 
7.579  We have no evidence before us that the particul ar landscape papers were published, circulated 
or made available to the other ITA participants or  the WTO membership more broadly at the time of 
negotiations or prior to this dispute.  Thus, it is not clear to what extent if at all the views set forth in 
these documents reflect the commonly held intentions of the parties. 
7.580  The European Communities has taken note of st atements made by the Appellate Body in 
Canada – Dairy , concerning the relevance that may be attribut ed to statements made in the context of 
bilateral negotiations.
784  We note that the Appellate Body in Canada – Dairy took note that the 
parties had agreed on record that the bilateral negotiations under discussion "failed to produce any 
agreement between them", in concluding that Ca nada's commitment was not new or different.785  
Further, the Appellate Body in EC – Chicken Cuts emphasized the importance of ensuring that 
documents being considered under Article 32 of the Vienna Convention reflect the common intentions 
of the parties.786   
7.581  We consider that the "landscape papers", whic h were only reviewed by a subset of the ITA 
participants (the "Quad" members, in particular) and were not circulated prior to this dispute as far as 
we can determine based on the evid ence before us, should not have any bearing on our interpretation 
of the concessions arising under the EC schedule pur suant to the ITA.  We do not have evidence of 
any agreement (or lack thereof) among the Quad re garding the particular landscape papers.  Nor do 
we know to what extent if at all these views repr esent the common intentions of the ITA participants 
or the WTO Members, because no evidence has been offe red that documents were circulated to others 
prior to the conclusion of negotiations. 
Proposals during ITA II negotiations  
Arguments of the parties 
7.582  The European Communities  contends that negotiations  surrounding the "ITA II" 
demonstrate the respective positions of the parties on the existing product coverage of the ITA.  In 
this respect, the European Communities argues that Japan submitted a proposal to include "so-called 
'multimedia monitor[s]'" as new products, but did no t explain that multimedia monitors were already 
covered by the existing commitments.787  The European Communities argues that if "multifunctional 
LCD monitors" existed and were about to replace  the CRT technology at the time when the ITA 
concessions were made, it then is not clear why Japan was trying to negotiate the inclusion of a 
product that was on its way to becoming redundant.788  Furthermore, the European Communities 
argues that in the proposals for the enlargement of the product coverage, partic ipants have explicitly 
                                                      
784 Appellate Body Report on Canada – Dairy , paras. 138-139. Footnotes omitted.   
The European Communities additionally referred to findings made by the panel in Korea – Beef 
regarding the relevance of an understandin g reached bilaterally. (See Panel Report on Korea – Beef , para. 562). 
785 Appellate Body Report on Canada–Dairy , paras. 139. 
786 Appellate Body Report on EC – Chicken Cuts , para. 239; Appellate Body Report on 
EC - Computer Equipment , para. 84. 
787 European Communities' first written submissi on, para. 178 (referring to Exhibit EC-21). 
788 European Communities' first written submission, para. 179. WT/DS375/R 
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  listed television receivers  and video monitors  as a product to be covered in the future list of product 
coverage.
789 
7.583  The complainants  argue that the proposals and negotiations pertaining to ITA II are not 
relevant to the interpretative issues.790  The United States  submits that just because a proposal was 
made in ITA II for "multimedia monitors" and "vid eo monitors" does not support the conclusion that 
the products were not covere d under the original concessions.791  Japan argues that the Panel should 
not rely on the ITA II as an interpretative tool, in particular because no agreement arose out of the 
ITA II discussions.792 
Consideration by the Panel 
7.584   We note that neither participants to the ITA nor the WTO membership at large has formally 
agreed to the content of an "ITA II" to succeed or enlarge the product coverage of the ITA.   
7.585  We recall that the Appellate Body has indicated  that documents published, events occurring, 
or practice followed subsequent to the conclusion of the treaty may be relevant for consideration 
under Article 32 of the Vienna Convention to the exte nt that the instrument or document reflects the 
"common intentions of the parties' at the time  of the conclusion" of the treaty.793  The Appellate Body 
emphasized, however, that such an assessment must be determined on a case-by-case basis. 
7.586  In this respect, the European Communities ar gues that negotiations a nd proposals made in 
connection with the ITA II may inform the interpreta tion of the intended scope of product coverage of 
the original ITA at the time of its conclusion.   
7.587  We are hesitant to attribute much weight to st atements made in the context of negotiations for 
a separate, successor agreement that has not yet been  concluded, and where the extent of progress 
towards reaching such an agreement remains uncle ar.  In addition, the European Communities has 
referred to limited evidence in support of its view on the scope of coverage to be attributed to the 
FPDs narrative description.  We understand the Eu ropean Communities to be arguing that Japan's 
proposal to include a product it termed a "multi media monitor" within ITA II coverage, without 
explaining that such a product is already covered under the original ITA, somehow demonstrates that 
those products did not exist at the time ITA concessi ons were made.  However, we note that Japan's 
proposal appears to be limited to monito rs employing CRT-based display technology.794  Furthermore, 
the European Communities suggests that a proposal (b y Singapore) to include television receivers and 
video monitors  in a list for future coverage indicates these products were not part of ITA coverage.795 
                                                      
789 European Communities' first written submission, para. 180 (referring to Singapore's proposed 
additions to product coverage in WTO document G/ IT/SPEC/9 of 12 January 1998, Exhibit EC-22). 
790 United States' second written submission, para. 97; Japan's second written submission, para. 183. 
791 United States' second written submission, para. 97 and its fn. 203.  Through the notation "already 
covered by the ITA", the United States argues that the ITA II negotiators recognized that several products proposed for inclusion in ITA II may in fact have been  part of ITA I  (United States' second written submission, 
para. 97 and its fn. 203; WTO document Proposed Additions to Product Coverage: Compilation of Participants' 
Submissions: Note by the Secretariat, G/IT/SPEC/15 , pp. 23-24 (24 February 1998) (Exhibit US-130)). 
792 Japan's second written submission, para. 183. 
793 Appellate Body Report on EC – Chicken Cuts , para. 305. 
794 Exhibit EC-21, p. 5. 
795 European Communities' first written submission, para. 180, referring to Singapore's proposed 
additions to product coverage in WTO document G/ IT/SPEC/9 of 12 January 1998. Exhibit EC-22.  WT/DS375/R 
 WT/DS376/R 
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  7.588  We do not consider that we have sufficient grounds to conclude that Japan's individual 
proposal to include a product it termed a "multi media monitor" under ITA II coverage establishes 
whether or not a particular product was covered with in the ITA, or whether such a product existed at 
the time of ITA negotiations.  The determination of  whether a product is covered by the ITA involves 
considering first the scope of the concessions alr eady found in the ITA.  The products covered by the 
concession proposed by Japan, may or may not (in whole or in part) fall within the existing ITA coverage, and this is so regardless of  Japan's individual views on the matter.
796  Moreover, we note 
that Japan's views on whether or not multimedia mon itors were within the scope of ITA coverage do 
not represent the common views of all ITA participan ts, let alone all of the WTO Membership.  The 
terms of the FPDs concession in the EC Schedule,  on the other hand, represents agreed-upon text, 
reflecting the common intentions of ITA participants and the WTO Membership.   
7.589  We concluded in our Article 31 analysis that  the FPDs concession in the EC Schedule extends 
to certain apparatus or devices that have a flat display and are generally thinner than conventional 
CRT displays or monitors, and are designed for vi sual presentation of data or signals from products 
falling with in the ITA, including notably, automati c data-processing machines.  We determined that 
there is no express limitation on technical characteristics, such as screen size, dimension, refresh rate, dot-pixel ratio, or othe r technical characteristics, including no express limitation on the type of 
connection or sockets it may possess, such as DVI.  Finally, we concluded that, while the flat panel 
display devices at issue must be designed for use with an automatic data-p rocessing machine there is 
no requirement for exclusivity, such that the c oncession would be limited to apparatus that only 
display or reproduce signals from products falling within the ITA, including automatic data-
processing machines. 
7.590  Finally, we find unpersuasive the European Communities' argument that Singapore's proposal 
to include HS headings 8528 12, 8528 13, 85 28 21 and 8528 22 within the ITA II as duty-free 
concessions, indicates that all flat panel display devices capable of receiving or reproducing signals 
from sources other than an ADP machine were not with in the scope of the original ITA, in particular, 
under the narrative description for FPDs.  We have es tablished above that the narrative descriptions of 
the concessions in Members' WTO Schedules must be understood in terms of their ordinary meaning 
in context and in light of the object and purpose of the treaty, in determining the coverage of a particular concession.  We found that the scope of the concession arising from the narrative 
descriptions is dispositive regardless of the HS head ings or tariff codes that Members chose to notify 
in connection with the descriptions, or those that they chose to bind at zero duties elsewhere in their 
Schedules.  Moreover, Singapore has not proposed modifying the narrative description for FPDs or 
otherwise amending the list of products appearing in Attachment B.  In any event, Singapore's view 
does not represent the common intentions of all participants nor the WTO membership. 
7.591  Accordingly, we consider that proposals made pursuant to the ITA II negotiations do not 
affect our conclusions established pursuant to  Article 31 of the Vienna Convention. 
The state of technology at the time of ITA negotiations
 
Arguments of the parties 
7.592  The United States and Japan  contend that LCDs for computer displays began to be 
commercialized in the 1980s, and "were very much a growing part of the market" beginning in the 
                                                      
796 We further note that Japan may have sought to clarify  that a product was covered within the scope 
of the ITA concessions (under the ITA II) despite its view that the product was already covered under the 
existing ITA coverage. WT/DS375/R 
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  "early 1990s", and were "well known during the mi d 1990s", when they began to replace CRT-based 
devices.
797  Japan asserts that the commercial presence of LCD devices explains why the concessions 
themselves mentioned flat panel devices 'including LCDs'".798   
7.593  The European Communities argues that the technology referred to by the complainants has 
been subject to "major developments" since the early 2000s, which it argues, is five or more years after the conclusion of the ITA.
799 The European Communities qualifies evidence from the 
complainants regarding LCD technology as concerni ng "only the development of LCD televisions", 
and thus argues that it is not clear that LCD comput er displays existed at the time of negotiations as a 
"viable commercial and technological reality".800 The European Communiti es argues that a monitor 
that can be used today as the output unit of an automatic data-processing machine is fundamentally 
different from ADP monitors that were used and defined in 1996 when the ITA was negotiated. The 
European Communities argues that these new pr oducts must be subject to negotiations.801 The 
European Communities further argues that LCD disp lays with DVI did not exist at the time of 
negotiations.802 
7.594  Several third parties to this dispute argue that  the particular technological development of a 
product should not exclude the possibility that a part icular product would fall within the scope of an 
ITA concession, including those based on Attachment B of the ITA.803 
Consideration by the Panel 
7.595  The Panel  notes that many of the arguments of the parties set out above concern the existence 
or otherwise of certain technologies at the time of the ITA negotiations.804   
7.596  One of the issues to consider is, to what extent  is the state of technology that existed at the 
time of the negotiations relevant to  determining the scope of the commitments.  A related issue is, 
how should technological development, product evol ution and "new products", be dealt with in 
interpreting concessions.  In the Panel's view it is  neither desirable nor possible to answer such 
questions in the abstract and without reference to the terms of the concessions that are being 
interpreted.   
                                                      
797 Japan's first written submission, paras. 273 and 277.  Japan refers to an antidumping petition filed in 
the United States in 1990 in support of the vi ew that LCDs were commercially available. 
798 Japan's first written submission, paras. 277. 
799 The European Communities argues that LCD technology was nascent during the time of 
negotiations and afterward for certain applications, due to technical issues (European Communities' first written 
submission, paras. 88-89, citing Taiichiro Kurita, Moving Picture Quality Improvement for Hold-type AM-
LCDs, p. 986 (Exhibit EC-12) and T. Yamammoto, Y. Aono and M. Tsumura, guiding Principles for High Quality Motion Picture in AMLCDs Applicable to TV Monitors, p. 456 (Exhibit EC-13)). 
800 European Communities' first written submission, para. 90. 
801 European Communities' first written submission, para. 76. 
802 European Communities' first written submission, para. 87. 
803 See, for instance, Australia's third party oral statement, para. 14; Australia's response to Panel 
question No. 4; Costa Rica's third party oral statement, para. 6; Costa Rica's response to Panel question No. 4; 
Hong Kong (China)'s third party oral statement, para. 6; Korea and Singapore's responses to Panel question 
No. 9. 
804 See for instance, Japan's second written submission, para. 156, United States' first written 
submission, paras. 51-52 (citing to Hirohisa Kawamoto, The History of Liquid-Crystal Displays, Proceedings of 
the IEEE (Vol. 90, No. 4 (April 2002), p. 466 (discussing the reflection process)).  WT/DS375/R 
 WT/DS376/R 
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  7.597  We recall that, in determining the scope of the European Communities' commitment on FPDs, 
we applied the customary rules of interpretation of public international law, as codified in Article 31 
of the Vienna Convention. In doing so, we exam ined the ordinary meaning of the terms of the 
European Communities' FPDs commitment, in the cont ext provided by the ITA, other relevant parts 
of the EC Schedule, and the schedules of other WTO Members.  We established that the FPDs concession pertains to certain apparatus or devices th at have a flat display and are generally thinner 
than conventional CRT displays or monitors, and are designed for visual presentation of data or 
signals from products falling with in the ITA, in cluding notably, automatic data-processing machines.  
We determined that there is no express limitation on technical characteristics, such as screen size, 
dimension, refresh rate, dot-pixel ratio, or othe r technical characteristics, including no express 
limitation on the type of connection or sockets it may possess, such as DVI.  Finally, we concluded 
that while the flat panel display devices at issue must be designed for use with an automatic data-
processing machine there is no requirement for exclusiv ity, such that the concession would be limited 
to apparatus that only display or reproduce signa ls from products falling within the ITA, including 
automatic data-processing machines. 
7.598  We observe once again that a Member, when ma king a commitment pursuant to Article II of 
the GATT 1994, may choose precise, even exclusive,  terms and conditions to qualify or limit the 
scope of coverage.  These include terms and conditi ons that would limit coverage to a particular 
product based on its physical attributes, dimensions, technical characteristics or features.  A Member 
may also refer to a particular classification or tariff heading to define or limit the scope of a 
concession.  The determination of the scope of covera ge comes from the meaning of the terms of that 
commitment.  For this reason, a panel should not r ead qualifications into a commitment that are not 
there. At the same time, the other Members have  an opportunity to agree or disagree with the 
proposed concession when it is put forward for in corporation into a Member's schedule.   
7.599  The Panel has interpreted the concession based  on the FPDs narrative description in this 
manner.  In the case of this concession, the Panel notes that generic terms were used to cover a wide 
range of products and technologies.  In addition, it appears to be undisputed that flat panel display 
devices designed for use with au tomatic data-processing machines existed at the time the ITA was 
concluded (for example, the European Communities has referred to an earlier version of the "displays 
designed for use with computers" concession that ex pressly mentions both CRT and flat panel display 
technology)
805, and that the notion of multifunctional m onitors was not unknown to negotiators, as 
evidenced in the monitors concessi on in the ITA, which appears to contemplate the existence of 
monitors that accept signals from multiple sources.806 
7.600  We are of the view, therefore, that there is no n eed to consider further the particular status of 
technology at the time of negotiating the concession  in assessing the scope of the concession before 
us.  Thus, for instance, the Panel does not consider the fact that DVI was developed after the 
conclusion of the ITA operates to exclude FPDs wi th DVIs from the scope of the concession.  As 
                                                      
805 See fn. 729 above.  The Panel notes that, in interpreting the FPDs narrative description, it has 
declined to consider the landscape papers under Article 32 of the Vienna Convention on account of th e fact that 
they do not reflect common intentions and therefore do not assist our interpretative task.  The panel here refers 
to the landscape document merely as  evidence of the fact that both CRT  and LCD technologies were known to 
be used in displays designed for use with computers at the time the concessions were made.   
806 See also China – Publications and Audiovisuals Products , para. 397. WT/DS375/R 
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  explained, we have established on the terms of the concession th at "flat panel display devices" 
incorporating a wide range of characteristics and technologies are covered.
807 
7.601  We note the European Communities' argument that multifunctional monitors are "new 
products" that did not exist at the time of th e negotiations.  As noted above, the notion of 
multifunctionality was not unknown at the time of the negotiations.  Even if it were accepted that the 
European Communities' claim is factually accurate, however, it is of limited relevance to the question 
of whether the product is covered by the FPDs conces sion.  This must be determined by interpreting 
the terms of the concession in accordance with the Vienna Convention.   
7.602  We recall that, in determining the scope of  the European Communities' commitment on FPDs 
we examined the ordinary meaning of the te rms of the European Communities' FPDs narrative 
description, in the context provided by the ITA, ot her relevant parts of the EC Schedule, and the 
schedules of other WTO Members.  We established that the FPDs decryption pertains to certain 
apparatus or devices that have a flat display and ar e generally thinner than conventional CRT displays 
or monitors, and are designed for visual presentati on of data or signals from products falling with in 
the ITA, including notably, automatic data-processi ng machines.  We determined that there is no 
express limitation on technical characteristics, such as screen size, dimension, refresh rate, dot-pixel 
ratio, or other technical characteristics, including no express limitation on the type of connection or sockets it may possess, such as DVI.  We also noted th at there is no requirement for exclusivity, such 
that the concession would be lim ited to apparatus that only displa y or reproduce signals from products 
falling within the ITA, including automatic data-processing machines. 
Other arguments - Conclusion
 
7.603  Given the Panel's view that the material s relied upon the European Communities for its 
Article 32 arguments are not appropriate to consider  under the circumstances of this case, we decline 
to consider further the applicab ility of Article 32 in this case. 
                                                      
807 We also do not consider it necessary to resort to any form of evolutionary interpretation of the 
terms, in light of our conclusion on the ordinary meaning of the terms.  Had there been doubt as to whether LCD 
or other displays that were capable of connecting to other sources than an automatic data-processing machine, or displays that were fitted with DVI or other multi-use co nnectors, were within the scope of the concession, only 
then might we have considered such an interpretative ap proach.  We note in addition, the evidence cited by the 
United States and Japan suggests that LCD displays were unveiled commercially in 1988, and would likely have been contemplated at the time of the negotiations (See H. Kawamoto, "The History of Liquid-Crystal Displays" 
Proceedings of the IEEE, Vol. 90, No. 4 (April 2002),  available at 
http://www.ieee.org/portal/cms_docs_i portals/iportals/aboutus/history_center/ LCD-History.pdf, p. 495. Exhibit 
US-32)  While the European Communities argues that the LCD industry was nascent then, we note that the 
European Communities has cited text of it in landscape papers it alleges were submitted by the United States 
during negotiations of the ITA.  In particular, one of these papers referred to an early version of a proposed concession that provides in part "Displays designed for use with computers, sometimes referred to as computer 
monitors regardless of the size of the display area (however meas ured, large or small) and whether or not using 
a CRT or some flat screen technology such as AMLCD,  EL, gas plasma, or one of the emerging technologies 
such as field emission displays" (European Communitie s' first written submission, para. 182, referring to 
Facsimile communication of 28 March 1996 from the US auth orities, Exhibit EC-3).  Regardless of the status of 
this document, in view of the European Communities' id entification of this text, we find further confirmation 
that negotiators were at least aware of a wide arra y of technology at the ti me of considering the FPDs 
concession.  WT/DS375/R 
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  (viii) Overall conclusions on interpretation of th e FPDs narrative product description in the Annex 
to the EC Schedule  
7.604  Based on our assessment of the text of the FPD s narrative description in accordance with the 
principles codified in Article 31 of the Vienna C onvention, we concluded above that the concession 
refers to certain apparatus or devices that have  a flat display and are generally thinner than 
conventional CRT displays or monitors, and are de signed for visual presentation of data or signals 
from products falling with in the ITA, including notably, automatic data-processing machines.  We 
determined that there is no express limitation on  technical characteristics, such as screen size, 
dimension, refresh rate, dot-pixel ratio, or othe r technical characteristics, including no express 
limitation on the type of connection or sockets it may possess, such as DVI.  We further concluded there is no requirement for exclusivity, such that the FPDs concession would be limited to apparatus 
that may only display or reproduce signals from products falling within the ITA, including automatic data-processing machines.  In light of our interpretation of the key terms and phrases in the EC 
headnote, considered in the context of the ITA,  we concluded that duty-free treatment must be 
extended to all products that fall within the scope of the FPDs concession in the Annex to the EC 
Schedule irrespective of where they are classifi ed in the EC Schedule.  We found no reason to 
conclude otherwise based on our assessment of the various contextual arguments presented by the 
parties, or arguments raised by the European Commu nities in the context of Article 32 of the Vienna 
Convention. 
(b) The ordinary meaning of the relevant concession: tariff item number 8471 60 90 in the EC 
Schedule 
7.605  The Panel recalls that the complainants have  alleged that flat panel display devices are 
covered not only by the duty-free FPDs narrative d escription in the Annex to the EC Schedule, but 
also by the duty-free concession for "[i]nput or output  units" of an automatic data-processing machine 
in tariff item number 8471 60 90 in the EC Schedule.
808  In particular, tariff item number 8471 60 90 
covers "Automatic data-processing machines and units thereof"; - Input or output units, whether or 
not containing storage units in the same housing; -- Other; - - - Other".  Within the terms of this concession, the complainants consider the term "out put units" as key to the ordinary meaning analysis 
under the Vienna Convention.
809  The complainants do not address the term "input" units in 
connection with their assessment of  tariff item number 8471 60 90. 
7.606  The European Communities  argues that LCD monitors of a kind used principally in an 
automatic data-processing system are not precluded from duty-free treatment on the sole ground that 
they are capable of displaying signals from source s other than an automatic data-processing machine, 
or due to the presence of a DVI or other connector.  Taking into considera tion the relevant HS1996 
Section and Chapter Notes, as well as its Explanator y Notes to Chapters 84 and 85 and the GIRs of 
the HS, the European Communities ar gues that the determination of whether a given monitor is used 
"principally" in an automatic  data-processing system requires a case-by-case analysis  on the basis of 
the product's objective technical characteristics, which could lead to prima facie  classification under 
the heading pertaining to video monitors (HS1996 subheadings 8528 21 and 8528 22).810 This is 
because certain displays existing today are "multifunc tional", i.e., they can display both from an 
                                                      
808 Joint Panel request, WT/DS375/8, 376/8, DS377/6, p. 2. The following third parties also take this 
view in their third party submissions: China, para. 3; Costa Rica, para. 5; Korea, para. 28; Philippines, para. 21; 
Singapore, paras. 29, 33 and 48; and Thailand in its third party statement, para. 3. 
809 United States' second written submission, para. 99 ; Japan's first written submission, para. 302; 
Chinese Taipei's first written submission, para. 320.   
810 European Communities' first written submission, paras. 166 and 169. WT/DS375/R 
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  automatic data-processing machine and from other s ources.  The European Communities submits that 
in this case one would need to resort to GI R 3(c), and classification would result under HS1996 
heading 8528. 
7.607  The Panel  will now interpret the relevant EC c oncession for tariff item number 8471 60 90 
which reads as follows:  
HS1996  Description  Base 
rate Bound  
rate Year of 
full 
implement
ation  Other 
duties 
and 
charges  Legal 
instrument 
where the 
concession is 
reflected  
8471 Automatic data-processing 
machines and units thereof; 
magnetic or opti cal readers, 
machines for transcribing data 
onto data media in coded form 
and machines for processing 
such data, not elsewhere 
specified or included:      
     (…)  
8471 60 - Input or output units, whether 
or not containing storage units 
in the same housing      
8471 60 10    - - For use in civil aircraft 0.0 0.0 1997 0.0 WT/Let/156 
    - - Other      
8471 60 40        - - - Printers 2.0 0.0 1999 0.0 WT/Let/156 
8471 60 50        - - - Keyboards 2.0 0.0 1999 0.0 WT/Let/156 
8471 60 90        - - - Other 2.0 0.0 1999 0.0 WT/Let/156 
 
7.608  In order to determine the ordinary meani ng of tariff item number 8471 60 90 in the EC 
Schedule pursuant to Article 31 of the Vienna Conven tion, we will examine the text in its context and 
in light of its object and purpose. 
(i) The meaning of the terms of tariff item number 8471 60 90 in the EC Schedule 
Arguments of the parties  
7.609  The United States  examines the term "input or output units" of tariff item number 8471 60 90 
in the EC Schedule.811  Japan  argues that the key language in the concession under tariff item number 
8471 60 90 is the phrases "units thereof" and "output units".812  Chinese Taipei  examines the ordinary 
meaning of the term "output unit" from both general and specialized dictionaries.813 
                                                      
811 United States' first written submission, para. 136. 
812 Japan's first written submission, para. 298 and 300 (Japan argues there is no dispute over the term 
"automatic data-processing machin es" which includes "computers"). 
813 Chinese Taipei's first written submission, para. 311, 323 and 325 (arguing that  the terms "whether or 
not containing storage units in the same housing" in HS1996 subheading 8471 60 do not suggest that a display device capable of receiving signals bo th from an automatic data-processing  machine and other sources would be 
excluded from the definition of HS1996 subheading 8471 60).  WT/DS375/R 
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  Input or output units 
7.610  The complainants  refer to definitions of the words " output" and "units" from both standard 
and technical dictionaries.  They also consider th e terms in combination.  They do not address the 
term "input". 
7.611  Japan  notes that in a technical sense, "output" is defined as "data produced by a data-
processing operation, or the information that is the objective or goal in data-processing".
814  I n  i t s  
ordinary sense, Japan notes that "output" is define d as "an electrical signal delivered by or available 
from an electronic device".815 
7.612  Chinese Taipei  refers to one definition of "output" as  "energy produced by a machine; spec. 
an electrical signal delivered by or available from an  electronic device. c. Data or results produced by 
a computer, the physical medium on which these are presented."816  It also notes the definition, 
"power or energy produced or delivered by a mach ine or a system, e: the information produced by a 
computer (2) the act, process or an instance of producing (3) the terminal for the output of an 
electrical device."817 
7.613  Chinese Taipei additionally refers to the definition of "unit" as "3. An individual thing, person 
or group regarded as single and complete, esp. for the purposes of calculation"818, and "a piece or 
complex of apparatus serving to pe rform one particular function."819 
7.614  The complainants also look at the use of the terms "output" and "unit", or output device, in 
combination.  In particular, the United States  notes that one technical definition of "input/output 
device" is "a unit that accepts new data, sends it in to the computer for processing, receives the results, 
and translates them into a useable medium".820  The complainants submit that "output unit" means "a 
unit which delivers information from the computer to an external device or from internal storage to 
external storage".821   
7.615  Based on these definitions, the United States ar gues that an "output unit" under HS1996 code 
8471 60 is a device that accepts new data, sends it into the computer for processing, receives the 
results, and translates them into a useable medium.  It argues that an LCD computer monitor is an 
output unit of an ADP machine since it provides the results of processing to the user by providing a 
visual display of information received from the CPU.  In its view, the mere fact that a monitor uses a 
                                                      
814 Japan's first written submission, para. 298 (referring to McGraw-Hill Dictionary,  p. 1418 (Exhibit 
JPN-11)). 
815 Japan's first written submission, para. 87 (referring to the Shorter Oxford Dictionary (1993), pp. 
3275, 2040 (Exhibit JPN-11)). 
816 Chinese Taipei's first written submissi on, paras. 313 and 316 (referring to the Shorter Oxford 
Dictionary (1993), p. 2040. 
817 Chinese Taipei's first written submission, paras.  313 and 316 (referring to http://www.merriam-
webster.com/dictionary). 
818 Chinese Taipei's first written subm ission, para. 314 (referring to the Shorter Oxford Dictionary 
(1993), p. 3491). 
819 Chinese Taipei's first written submission, para. 317 (referring to http://www.merriam-
webster.com/dictionary). 
820 United States' first written submission, para. 136 fn. 193; United States' second written submission, 
para. 99 (referring to McGraw-Hill Dictionary (5th ed. 1994), p. 1021(Exhibit US-82)). 
821 United States' first written submission, para. 136, fn. 193, United States' second written submission, 
para. 99 and Japan's first written submi ssion, para. 298 and Chinese Taipei's first written submission, para. 319 
(all referring to McGraw-Hill Dictionary (5th ed. 1994), p. 1419 (Exhibits US-83; JPN-11)). WT/DS375/R 
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  DVI connector, for instance, to tr ansmit the information displayed does not render it something other 
than an output unit of an ADP.
822   
7.616  Japan  submits that the phrase "output unit" or "out put device" refers to devices that display 
or in some other way use computer output.  Thus, it  argues, display monitors that can display data 
from a computer are "output devices".  Japan considers that "output units" refers to the wide range of 
"units" covered by HS1996 heading 8471, where in  its context "output" means the electric signal 
delivered by the computer to which the "output unit"  has been connected.  This language speaks to the 
interconnectivity between the computer and any un its used in connection with that computer.  
Accordingly, it argues, any device that is connectable  to a computer falls within the scope of that 
heading.823 
7.617  Japan additionally considers the use of the term "unit thereof" in heading 8471.  Japan cites 
the definition of "thereof" as "of that, concerning that".824  In its view the terms "units thereof" in 
heading 8471 refers to devices desi gned and engineered to be connected  to and used in an integrated 
fashion with computers.  Japan further submits th at the language "units th ereof" imposes no limitation 
and thus all "units thereof" are covered under subheading 8471 60, not just units that are exclusively 
dedicated to automatic data-processing machines.825   
7.618  Taking into consideration what it considers the technology and ordinary meanings, Japan 
argues that an "output unit" of an automatic data -processing machine is some device that can receive 
and then act upon electrical signals coming from a computer, without limitation regarding what the 
device may connect to.  Japan submits that an LCD monitor qualifies as an "output unit" of an ADP 
machine.  "By virtue of" the DVI, it argues, the LCD monitor can receive signals from the computer 
and display them on the display screen.826   
7.619  Chinese Taipei  argues that the ordinary meaning of the terms "output units" in HS1996 
subheading 8471 60 includes those FPDs capable of receiving signals both from an automatic data-
processing machine and other sources.  Chinese Taipei argues that the ordinary meaning of an "output 
unit" is "very broad" and covers a piece or complex of apparatus serving to deliver information or data 
produced by a computer.827 
7.620  The European Communities  does not dispute that "genuine ADP monitors", would fall 
within HS1996 subheading 8471 60.  However, it argu es that it is not entirely clear whether products 
identified by the complainants, including what it calls "multifunctional LCD monitors" fall within the 
scope of the concession.  To the extent they would qualify under tariff item number 8471 60 90, the 
European Communities argues that those products recei ve duty-free treatment, and that there is thus 
no need to examine the ordinary meaning of the concessions.  But, the European Communities argues, 
certain FPDs may also fall within the ordinary meaning of "video monitors" under HS1996 headings 
8528 21 and 8528 22, or, in some cases, as "reception apparatus for television"  under HS1996 
headings 8528 12 and 8528 13.828   
                                                      
822 United States' first written submission, para. 136. 
823 Japan's first written submission, paras. 299-301; Japan's second written submission, paras. 187-188. 
824 Japan's first written submission, para. 87 (referring to the Shorter Oxford Dictionary (1993), 
pp. 3275, 2040 (Exhibit JPN-11). 
825 Japan's first written submission, para. 300; Japan's second written submission, para. 185. 
826 Japan's first written submission, paras. 302-303. 
827 Chinese Taipei's first written submission, paras. 318-320. 
828 European Communities' first written submission, paras. 100-101.  WT/DS375/R 
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  Consideration by the Panel
 
7.621  The Panel  notes that, in interpreting the meaning and scope of the concession at issue, the 
complainants have relied on a variety of definiti ons from both technical dictionaries and more general 
dictionaries of the English language.  Given the terms involved, we thi nk this is appropriate.829 
7.622  Before we start our analysis of the specifi c terms used in the concession based on these 
dictionary definitions, we recall the Appellate Body 's statement that, while dictionaries are a "useful 
starting point" for the analysis of "ordinary mean ing" of a treaty term they "are not necessarily 
dispositive".830  We are also aware that understanding the pl ain meaning of the text is the beginning of 
our inquiry and not the end.  While we may organize our analysis of the ordinary meaning into 
different sections, for the sake of convenience, we remain cognizant that we are conducting an holistic 
analysis of the ordinary meaning and that the te xt of the terms cannot be divorced from the context 
and the object and purpose of the treaty.831 
7.623  The complainants provided a number of definitions  of the term "output", both in isolation as 
well as in combination with the term "unit".  A ll of these definitions support the understanding that 
"output" in a general sense refers to an electrical signal delivered by or available from an electronic 
device, or in particular, data or information.  Such data or input could include that produced and 
delivered by an automati c data-processing machine. 
7.624  The concession in subheading 8471 60 (and tariff item number 8471 60 90 by extension) does 
not cover the outputs themselves, but "output units".  As discussed by Chinese Ta ipei, "unit" refers to, 
inter alia  "a device with a specified function forming pa rt of a complex mechanism".  This definition 
indicates that the meaning of "output units" cannot be dissociated from the question of what is the "function performed" by such units and what complex mechanism they are a part of.  To that end, we 
recall that subheading 8471 60 is a subheading of 8471 which covers "aut omatic data-processing 
machines" and "units thereof".  Therefore, the "o ther" covered by tariff item number 8471 60 90 in the 
EC Schedule would be all "input or output units" of automatic data-processing machines that are not 
"for use in civil aircraft" (8471 60 10), "printers" (8471 60 40) or "keyboards" (8471 60 50).   
7.625  We note that all parties agree that computers qualify as "automatic data-processing machines" 
as used in HS1996 heading 8471.  We note furthe r that "units" of "an automatic data-processing 
machine" are devices forming part of and having  at least one specified function in an ADP.   Because 
the "units" in question are "output" units of ADPs, it logically follows that the functions such "units" 
                                                     
 
829 Other panels have also examined technical dictionaries when conducting an ordinary meaning 
analysis pursuant to Article 31 of the Vienna Convention.  See e.g., the Panel Report on Mexico – Telecoms , 
paras. 7.81-7.83 (using the Newton's Telecom Dictionary to interpret certain terms from Mexico's Services 
Schedule);  Panel Report on China – Auto Parts , paras. 7.660-7-661 (using the Dictionary of Automobile 
Engineering, an automobile industry dictionary, to interpret China's Schedule);  Panel Report on EC – Approval 
and Marketing of Biotech Products , para. 7.372 (using the Glossary of Biotechnology for Food and Agriculture, 
a biotech industry dictionary, to define the word "biodiversity");  See also  the Appellate Body Report on 
EC - Poultry , para. 92 (citing the Dictionary of Trade Policy Terms and the Dictionary of International Trade). 
830 The Appellate Body Report on EC – Chicken Cuts , para. 175 (citing the Appellate Body Reports on:  
US - Softwood Lumber IV , para. 59; US - Offset Act  (Byrd Amendment) , para. 248; and US - Gambling , 
para. 166).  See also the Appellate Body Reports on: China - Publications and Audiovisual Products , para. 348; 
and India - Additional Import Duties , para. 167, fn. 324. 
831 In this respect, we recall that the Appellate Body in EC – Chicken Cuts , noted that "Interpretation 
pursuant to the customary rules codified in Article 31 of  the Vienna Convention is ultimately an holistic exercise 
that should not be mechanically subdivided into rigid components." (Appellate Body Report on 
EC - Chicken Cuts , para. 176). WT/DS375/R 
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  are required to perform are the sending/receiving of electrical signals, information, or data from an 
ADP.
832 
7.626  Therefore, we preliminarily conclude that the plain meaning of the term "output units" in the 
relevant concession, i.e., subheading 8471 60, refers to devices that form part of an ADP or an ADP 
system and that perform at least one specifi ed function involving sending/receiving signals, 
information or data from the ADP or ADP system.  This being the case, the concession in 8471 60 90 
of the EC Schedule would cover all "input or output  units" of automatic data-processing machines that 
are not "for use in civil aircraft" (8471 60 10), "p rinters" (8471 60 40) or "keyboards" (8471 60 50).   
7.627  We now turn to consider whether reading the terms of the concession in their context 
confirms or changes our preliminar y understanding of the plain meani ng of the term "output units" in 
the concession. 
(ii) The terms of tariff item number 8471 60 90 in their context 
7.628  The complainants  argue that various contextual elemen ts, including the structure of heading 
8471, the language used in various subheadings an d the interpretative materi als in the HS1996, such 
as the notes to Chapter 84, support the conclusion that the scope of tariff item number 8471 60 90 in the EC Schedule is broad enough to include LCD mon itors and other display devices, that are fitted 
with connectors, such as DVI, that can receive and reproduce signals from an automatic data-
processing machine, regardless of whether they can also connect to other devices.
833 
7.629  The European Communities  argues that the key question is whether a given LCD monitor 
falls within the scope of tariff item number 8471 60 90 or under one of the headings of Chapter 85.834  
Contrary to the complainants, the European Co mmunities argues that it has followed the HSEN1996 
to heading 8471 in classifying FPDs under subhe adings 8528 12 and 85 28 13 and 8528 21 and 
8528 22, where appropriate.835  Specifically, the European Communities argues that it has simply 
been applying the criteria contained therein to di stinguish between display units of ADP machines and 
video monitors. At the time relevant to this disput e, the language of the Explanatory Note to heading 
8471 with regard to "separately presented units" su ch as "display units of automatic data-processing 
machines" stated that display units of ADP mach ines were "capable of accepting a signal only from 
the central processing unit of an automatic data-pro cessing machine and [were] therefore not able to 
reproduce a colour image from a composite video si gnal whose waveform conforms to a broadcast 
standard (NTSC, SECAM, PAL, D-MAC etc.)". Such display units, it argues, were equally "fitted 
with connectors characteristic of data-processing systems (e.g. RS-232C interface, DIN or SUB-D 
connectors)". According to the European Communiti es, these are precisely the two criteria that the 
                                                      
832 The parties have not raised the issue as to whether the displays under discussion in this dispute are 
those of a type included within the same housing as the microprocessor and other components of an automatic data-processing machine, or those external to the housing  of an automatic data-processing machine.  We recall 
that the parties have limited their arguments to finished products, and not semi-finished ones.  Accordingly, we 
will focus our assessment here on finished products, or external displays or monitors, and not semi-finished components that may be incorporated in the housing of an automatic data-processing machine. 
833 United States' first written submission, paras. 137-139; United States' second written submission, 
paras. 99-100; Japan's first written submission, para. 304; Japan's second written submission, para. 189; Chinese 
Taipei's first written submission, para. 323-348. 
834 European Communities' first written submission, para. 134.  The European Communities argues, in 
particular, that it is first necessary to exclude the applicability of other headings including 8528 before considering whether the products at issue can fall within residual CN code 8471 60 90.   
835 European Communities' first written submission, para. 158.    WT/DS375/R 
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  complainants claim the European Co mmunities should not have applied.
836  But, it argues, even if the  
HSEN1996 to heading 8471 were ignored it would still be necessary "in most cases" to resort to the 
application of GIR 3(c) because it would be impossi ble to identify the principal function of the 
multifunctional monitor.837 
The terms of HS1996 heading 8471, other subheadings under it and its overall structure  
Arguments of the parties 
7.630  The complainants  argue that the duty-free concession in heading 8471 covers not only parts 
of the heading, but th e entire heading.  Japan  believes this indicates that the duty-free treatment was 
intended to be offered to all devices that are com puters or are used in conjunction with computers.838  
This is confirmed, argues Japan, by the use of the te rm "units thereof" in the heading.  Because the 
subheading in subheading 8471 60 clarifies that "un its thereof" includes "input or output units", the 
complainants believe that the concession broadly co vers any devices used either to input information 
into a computer or to output information coming from a computer.839  Finally, Japan also claims that 
the meaning "units thereof" indicates that the language of HS1996 heading 8471 is not limited by the 
technology used in the products fa lling under it, which confirms that this heading "is broad enough to 
cover products using changed technology."840   
7.631  The complainants further argue that the overall structure of HS1996 heading 8471, which 
includes several subheadings, confirms the broad scope of the European Communities' concession.841  
They consider that the terms of the other s ubheadings under HS1996 heading 8471 taken together 
provide strong contextual support for understanding that all types of computers and all types of 
computer units – separately or in various combinations – fall within heading 8471.842   
7.632  In particular, Japan  submits that HS1996 subheadings  8471 41, 8471 49 and 8471 50 cover 
different types of products that combine a com puter with some other computer related devices.843  The 
text of these three headings is: 
8471 41 : "- Other digital automatic data-pro cessing machines;  - - comprising in the 
same housing at least a central processing un it and an input and output unit, whether 
or not combined" 
8471 49 : "- Other digital automatic data-processing machines;  - - Other, presented in 
the form of systems" 
8471 50 : "- Digital processing units other than those of subheadings No 8471 41 and 
8471 49, whether or not containing in the same housing one or two of the following 
types of unit:  storage units, input units, output units"844 
                                                      
836 European Communities' first written submission, para. 158.   
837 European Communities' first written submission, para. 159. 
838 Japan's first written submission, para. 304. 
839 Japan's first written submission, para. 305. 
840 Japan's response to Panel question No. 13. 
841 United States' second written submission, para . 99 (referring to United States' first written 
submission, para. para. 137); Japan's first written subm ission, para. 305; Chinese Taipei's first written 
submission, para. 328. 
842 United States' first written submission, para. 13 7; Japan's first written submission, para. 316; 
Chinese Taipei's first written submission, para. 329. 
843 Japan's first written submission, para. 310. WT/DS375/R 
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  7.633  It argues, however, that the rest of the subheadi ngs deal with "units" of computers that do not 
include computers, such as HS1996 subheadings 8471 60 (input and output units); 8471 70 (storage 
units) and 8471 80 (other types of units).
845  Finally, Japan notes that subheading 8471 90 captures 
"other" devices that would otherwise be included in heading 8471 but that do not fall within any of 
the earlier subheadings.846   
7.634  Chinese Taipei argues that heading 8471 makes clear th at all types of automatic data-
processing machines are covered, including, under HS1996 subheading 8471 10, 8471 30, 8471 41 
and 8471 49.847  Chinese Taipei notes that subheading 8471 60 contains a residual heading under 
eight-digit tariff item number 8471 60 90 ("- - Other; "- - - Other").  Chinese Taipei submits that the 
existence of the "other"848 subcategory indicates therefore that, under the EC Schedule, all "input or 
output units" of computers that are not specifically  covered by one of the tariff item numbers under 
the HS1996 subheading 8471 60 (i.e., as "printers" or "keyboards") fall under the "residual" tariff item 
number 8471 60 90.  Chinese Taipei reasons that  the existence of a "residual subheading"  in the 
EC Schedule is important as it tends  to underline the "broad scope"  of the EC concession in HS1996 
subheading 8471 60, under which it is included.849 
7.635  The European Communities  has argued in this dispute that the mere presence of an "others" 
subheading within 8471 cannot have the effect of e xpanding the coverage of that heading beyond its 
own terms.850  In the European Communities' view, becau se the present dispute concerns issues with 
respect to concessions based on subheadings bel onging to different HS1996 Chapters (Chapters 84 
and 85), "in resolving those issues no relevant cont extual guidance can be drawn from the mere fact 
that HS1996 heading 8471 includes an 'Other' subheading."851   
Consideration by the Panel 
7.636  The Panel  recalls that the Appellate Body has conf irmed that the HS may provide additional 
relevant context to the interpretation of a given tariff concession.852  The parties all agree that the 
HS1996, on which the concession in CN 8471 60 in the EC Schedule is based, is the relevant HS 
document to provide context for the ordinary meaning of that concession.853  The Panel finds, 
therefore, that the other parts of heading 8471 are relevant context for determining the scope of the 
meaning of the terms used in the concession.   
7.637  In this regard, we observe that heading 8 471 is structured in broad terms as follows: 
                                                                                                                                                                     
844 Japan's first written submission, paras. 307-309. 
845 Japan's first written submission, para. 314. 
846 Japan's first written submission, para. 315. 
847 Chinese Taipei's first written submission, para. 328. 
848 Chinese Taipei's first written submission, para. 554 (citing the Shorter Oxford Dictionary  (1993) 
defining "other" as "existing besides or distinct from that or those already specified or implied; further, 
additional"). 
849 Chinese Taipei's first written submission, para s. 328, 555-557; Chinese Taipei's second written 
submission, para. 333.  Japan, more generally, refers to the European Communities' concession in CN code 
8471 60 90 ("Other"), together with the text of other subheadings, as part of its contextual arguments on the 
"structure" of HS1996 heading 84.71 (see Japan's first written submission, para. 142). 
850 European Communities' first written submission, para. 424. 
851 The European Communities' response to Panel question No. 13. 
852 Appellate Body Report on EC – Chicken Cuts , para. 199; Appellate Body Report on 
China - Auto Parts , para. 151. 
853 Parties' response to Panel question No. 104.  WT/DS375/R 
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  HS1996 Description 
8471 Automatic data-processing machines and un its thereof; magnetic or optical 
readers, machines for transcribing data onto data media in coded form and 
machines for processing such data, not elsewhere specified or included: 
8471 10  - Analogue or hybrid automatic data-processing machines 
8471 30  - Portable digital automatic data-pro cessing machines, weighing not more than 
10 kg, consisting of at least a central processing unit, a keyboard and a display 
 - Other digital automatic data-processing machines: 
8471 41 - - Comprising in the same housing at least a central processing unit and an 
input and output unit, whether or not combined 
8471 49 - - Other, presented in the form of systems 
8471 50  - Digital processing units other than t hose of subheading 8471 41 or 8471 49, 
whether or not containing in the same housing one or two of the following types of unit: storage units, input units, output units 
8471 60 - Input or output units, whether or not containing storage units in the same 
housing 
8471 70 - Storage units 
8471 80 - Other units of automatic data-processing machines 
8471 90 - Other 
 7.638  In particular, we observe that the structure and wording of heading 8471 seem to encompass 
all types of computer units within its parameters.  The structure has the logic of first looking at ADPs 
themselves (8471 10, 8471 30, 8471 41 and 8471 49)
854 and then moving on to "units" of those 
computers in the various ways they are presented – i.e., as part of a computer, as systems, with digital processing units, input or output units, storage units on a stand-alone basis, and other ADP units. In particular, we note the residual category of "other".  We agree with the European Communities that 
the inclusion of an "other" category in a headin g or subheading cannot lead to an interpretation 
beyond its terms.  However, the inclusion of an "o ther" subheading can indicate that the terms of the 
remaining subheadings do not by themselves delineate the limits of the scope of the main heading.  
This structure, along with the generic nature of the language in the main heading, lends credence to an 
interpretation of heading 8471 that it is meant to include any type of ADP unit.    
7.639  At the same time, our understanding of th e broad nature of the scope of 8471 is not informed 
by the fact that the entire headi ng was included in the duty-free concession in the ITA.  Contrary to 
the complainants' arguments, we do not believe this  provides any guidance to the effect that terms 
within that heading are to be interpreted broadly.  It could be equally plausible that the entire heading 
was included in the duty-free category because it w as narrowly construed and therefore, duty-free 
treatment would be limited to a small set of products.  That being said, however, our broad 
understanding of the coverage of  heading 8471 is based on the words in the heading itself in 
conjunction with its structure.  On the other hand, our analysis cannot end with an understanding that 
heading 8471 has a broad coverage; indeed the re levant concession under consideration is not 8471 
generally, but rather the specific subheadi ng 8471 60 for input or output units.  
7.640  We note that subheading 8471 60 in the EC Schedul e follows the same type of structural logic 
as the main heading.  It begins generally with input  or output units and then specifies the coverage of 
printers, keyboards, and a residual category "other".   As with the main heading, subheading 8471 60 
                                                     
 
854 We do note that even within 8471 30 the term "unit" is used to describe the Central Processing Unit 
("CPU") which is the main component of an automatic data-processing machine, therefore it seems that the term 
"unit" can also refer to parts of an automatic data-processing machine.   WT/DS375/R 
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  contains generic language "input or  output units" and then has eight-digit tariff item number which 
further subdivide the broader category.  One of these eight-digit codes is "other", which as noted 
above could indicate that the subheading under which it falls is not intended to be  narrowly construed.   
7.641  Thus the context provided by the terms of  heading 8471 and subheading 8471 60 further 
informs our earlier understanding that the plain meaning of the text of the terms in the concession covers devices that form part of an ADP or ADP system and that perform at least one specified function involving sending/receiving signals, information or data from the ADP or ADP system.  
Under this scenario, the concession in 8471 60 90 of  the EC Schedules would cover all "input or 
output units" that are not "for use in civil aircraft" (8471 60 10), "printers" (8471 60 40) or 
"keyboards" (8471 60 50). 
The HS1996:  Note 5 to Chapter 84 and the HSEN1996 to heading 8471 and heading 8528
 
7.642  The complainants  have discussed the contextual relevance of the text of HS1996 Note 5 to 
chapter 84 to understanding the scope of the European Communities' concession of duty-free 
treatment for "input or output units" in subheading 8471 60.  They consider that the chapter notes, in 
particular Notes 5(B) and 5(C) to chapter 84 provide further contextual support for the broad 
interpretation of the terms "input or output units" in the text of subheading 8471 60 in the EC 
Schedule.855  By contrast, the European Communities  argues that the language of those chapter 
notes with regard to "display units of automatic  data-processing machines" confirms that products 
capable of receiving or reproducing signals from sources other than an automatic data-processing 
machine are properly classifiable under HS1996 Chapter 85856, "in most cases" through the 
application of GIR 3(c) because it would be im possible to identify the principal function of a 
monitor.857 
7.643  We recall that the Appellate Body has confirme d that the HS may provide additional relevant 
context to the interpretation of a given tariff conces sion, including not only the text of the Chapter, 
heading and subheadings, but also the Section, Ch apter heading and subheadings notes, the HSEN and 
the GIRs.858  The parties all agree that the 1996 version of the Harmonized System, on which the 
concession in subheading 8471 60 in the EC Schedule is based, is the relevant document of the HS to 
provide context for the ordinary meaning of that concession.859  The Panel  finds, therefore, that the 
Section, Chapter, heading and subheadings notes, the HSEN and the GIRs that have been to referred 
to by the parties qualify  as context for interpreting the conces sions in subheading 8471 60 of the EC 
Schedule.  In doing this, we are mindful of the Ap pellate Body's general proposition that the binding 
elements of the HS may have greater probative value than those which are non- binding.860 
                                                      
855 United States' first written submission, para. 13 8; Japan's first written submission, para. 318; 
Chinese Taipei's first written submission, pa ra. 331. (Exhibits US-84, JPN-23; EC-15). 
856 European Communities' first written submission, para. 158. 
857 European Communities' first written submission, para. 159. 
858 Appellate Body Reports on EC - Computer Equipment ,  para. 89; EC – Chicken Cuts , para. 199 and 
China – Auto Parts , para. 151. 
859 The parties' responses to Panel question No. 132 (ar guing that the HS1996 applied at the time of the 
concession and that the HS2007 (and th e Explanatory Notes theret o) are neither 'context' under Article 31(2) of 
the Vienna Convention, nor an element 'to be taken into account together with the context', under Article 31(3) of the Vienna Convention).   
860 Appellate Body Report on EC – Chicken Cuts , para. 224.  WT/DS375/R 
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  Notes 5(B) and 5(C) to HS1996 Chapter 84 
7.644  The complainants submit that Note 5(B)(a) to HS1996 Ch apter 84 permits that a "unit" is 
considered part of an automatic data-processing sy stem when "it is either 'of a kind solely or 
principally used' in an automatic data-processing system".
861  They argue that solely or principally 
have different meanings.  Therefore, they argue th at the mere possibility that a display device could 
receive and reproduce signals from a source other th an an automatic data-processing machine is not 
sufficient to exclude it from HS1996 heading 8471.862   
7.645  In particular, Japan  notes that the first sentence of No te 5(B) indicates that "solely" and 
"principally" are alternatives.863  It argues that a product should qualify under Note 5(B) as a "unit" of 
an automatic data-processing machine if it is either "solely" or "principally" of a kind used with an 
automatic data-processing machine.864  Japan notes that the word "sol ely" means "as a single person 
or thing; without any other as an associate, etc.; alone" and that "principally" means "for the most 
part; in most case".865  Based on these definitions, Japan contends  that "solely" in Note 5(B) means a 
unit is only used in an automatic-data-processing sy stem, whereas "principally" means that the unit 
may be used in connection with machines other th an automatic data-processing systems.  Thus, it 
considers that displays that are capable of recei ving and reproducing signals from sources other than 
solely an automatic data-processing system should qualify under heading 8471 as "principally" used 
with an automatic data-processing machine. By re quiring exclusive use with an automatic data-
processing machine under the measures at  issue, Japan argues that the EC measures at issue render the 
term "principally" in Note 5(B)(a) "inutile".866   
7.646  Chinese Taipei  argues that the ordinary meaning of the term "principally" is  "1. in the chief 
case, above all, pre-eminently" or "3 For the most part; in most cases", which it considers makes clear 
that "principally" does not exclude other uses .867  Accordingly, the United States  and Chinese Taipei 
argue that an output unit of an automatic data-processing machine that is capable of receiving signals 
from sources other than an auto matic data-processing machine can still fall within the scope of 
HS1996 heading 8471 as an output unit "principally " for use with an automatic data-processing 
machine.868   
7.647  Japan and Chinese Taipei additionally argue that Note 5(C) to Chapter 84 applies because it 
discusses "separately presented units of an automatic data-processing machine".869  They consider this 
paragraph provides the broadest possible reading of  heading 8471 because it includes any unit "of" an 
                                                      
861 United States' first written submission, paras.  138-139 (Exhibit US-84); United States' second 
written submission, para. 100; Chinese Taipei's first written submission, paras. 332-333. 
862 United States' first written submission, para. 138 , United States' second written submission, para. 
100; Japan's first written submission, para. 337; Chinese Taipei's first written submission, paras. 334; 337-338. 
863 In its first submission,  Japan indicates that Note 5(B) to Chapter 84 does not appear to apply directly 
to "separately presented units of "an automatic data-p rocessing machine", but "separate units" of "systems" of 
automatic data-processing machines.  Japan submits that  the displays at issue are not necessarily parts of 
"systems", leaving the applicability of Note 5(B) unclear.  Nevertheless it co nsiders the meaning, in light of the 
European Communities' identification of Note 5 (Japan's first written submission, paras. 332-334). 
864 Japan's first written submission, paras. 332-334. 
865 Japan's first written submission, paras. 333-334 (referring to the Shorter Oxford Dictionary  (1993), 
pp. 2939 and 2356 (Exhibit JPN-11)). 
866 Japan's first written submission, para. 337. 
867 Chinese Taipei's first written subm ission, para. 335 (referring to the Shorter Oxford Dictionary 
(1993),  p. 2356). 
868 Chinese Taipei's first written submission, paras. 334; 337-338. 
869 Japan's first written submission, para. 234; Japan's second written submission, para. 192. WT/DS375/R 
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  automatic data-processing machine, an d states that such units are to be classified in heading 8471.
870  
Japan submits that the definition "of" – including, "relat ed to (a thing) in a wa y defined, specified, or 
implied by the preceding words" – indicates a br oad application and does not require exclusivity.871  
Thus, it argues that monitors that are capable of r eceiving or reproducing signals  of an automatic data-
processing machine through a DVI are a "units" of an automatic data-processing machine, regardless 
of whether they can reproduce or receive signals from other sources.872  Chinese Taipei takes Japan's 
view that Note 5(C) does not require exclusive use with an automatic data-processing machine in 
order to be classified under heading 8471.873 
HSEN1996 to heading 8471 and heading 8528 
7.648  The European Communities  argues that the language of HSEN1996 to heading 8471 with 
regard to separately presented units" such as di splay units of automatic data-processing machines 
confirms that products capable of receiving or  reproducing signals from sources other than an 
automatic data-processing machine are prope rly classifiable under HS1996 Chapter 85.874  I n  
particular, the European Communities cites the la nguage in HSEN1996, Note I(D)(1) to heading 8471 
that states: "Display units of automatic data-p rocessing machines are capable of accepting a signal 
only from the central processing unit of an automati c data-processing machine ... They are fitted with 
connectors characteristic of data-processing systems (e.g. RS-232C interface, DIN or SUB-D connectors) and do not have an audio circuit...".
875  The European Communities additionally cites the 
HSEN1996 to heading 8528 that provides: "video mon itors of this heading should not be confused 
with the display units of [ADP] machines describ ed in the Explanatory Note to heading 8471".876   
7.649  The complainants  submit that HSEN to headings 8 471 and 8528 should not be relied on to 
inform interpretation of tariff item number 8471 60 90.877  In particular, Japan and Chinese Taipei 
argue that, by referring to ADP monitors as "accepting a signal only from an ADP machine," the 
HSEN to 8471 Point I(D)(1) contradicts the wording of Note 5(B)(a) to Chapter 84 that refers to input 
or output units "of a kind principally or solely  for use in an ADP system" (emphasis added) and 
                                                      
870 Japan's first written submission, para. 324. 
871 Japan's first written submission, para. 325. 
872 Japan's first written submission, paras. 327-328. 
873 Chinese Taipei's first written submission, para. 340. 
874 European Communities' first written submission, para. 158. 
875 European Communities' first written submission, paras. 156 and 158. 
876 European Communities' first written submission, paras. 156-157.  The European Communities 
recognizes that the Europe an Court of Justice in its preliminary ruling in Kamino  identified a textual conflict 
between the language in HSEN to heading 8471 and that in Note 5(B)(a) to Chapter 84, ruling that the conflicting part in HSEN to heading 8471 is inapplicable  on the basis of the hierarchy of Notes in the CN and 
the HS (European Communities' first written submission, para. 165).  Based on this, the European Communities 
acknowledges that its classification justification in most cases is "too rigid" and needs to be reviewed (European Communities' first written submission, paras. 166-167). 
877 United States' second written submission, para. 100; Japan's second written submission, para. 191; 
Chinese Taipei's second written submissi on, para. 185.  The United States argues that HSEN cannot supersede 
Chapter Notes.  Chinese Taip ei argues that the HSEN are not legally binding and thus should not be given 
interpretative value where they conflict with binding HS section or chapter notes or  with the wording of HS 
headings.  WT/DS375/R 
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  therefore must be ignored.
878  Thus, they reject that the HSEN(1996) to heading 8471, including its 
Point I(D), justifies reading the term "princ ipally" out of Note 5(B)(a) to Chapter 84.879   
The application of GIR 3(c) 
7.650  To the extent the HSEN1996 to heading 8471 were considered irrelevant, the European 
Communities argues that it would still be necessary "in mo st cases" to resort to the application of GIR 
3(c) because it would be impossible to identify the prin cipal function of a monitor.  It argues that the 
assessment of whether a monitor is "principally" for use with an automatic data-processing machine – 
and thus, whether or not it is classifiable under HS1996 heading 8471 – requires a case-by-case 
analysis on the basis of objective technical character istics.  In such an assessment, it argues, recourse 
to GIR 3(c) may be necessary where the principal function cannot be identified.  If GIR 3(c) is 
applied, the European Communities argues, relevant monitors would then be classified in one of the 
subheadings in heading 8528 because that occurs l ast in numerical order among those which equally 
merit consideration, i.e., as a video mon itor or reception apparatus for television.880   
7.651  The complainants reject this view.881  Japan argues that resort to GIR 3(c) is incorrect if the 
interpretative question can be resolved by refere nce to the language of the relevant heading.882  I n  
general, Chinese Taipei cautions against application of rule GIR 3(c), arguing that classification under 
the heading that occurs last in numerical order among those which equally merit consideration is 
arbitrary and "without economic or real basis".883  It argues that the application of GIR 3(c) to devices 
able to reproduce signals from sources other th an automatic data-processing machines would 
nevertheless violate EC obligations under tari ff item number 8471 60 90 in its Schedule, because 
application of this rule should lead to classificati on in either headings 8531 or 9013, not heading 8528 
as the European Communities has argued.884  The United States argues that GIR 3 should not be 
applied in these circumstances since the products at issue are in no way classifiable outside of chapter 
84 or chapter 85.885   
Consideration by the Panel 
7.652  The Panel notes at the outset that the discussion of the HS1996 Notes in this section of the 
Reports is related to the contextual value that Note 5 to Chapter 84 provides for interpreting the 
ordinary meaning of the terms in subheading 8471 60 in the EC Schedule– i.e., in this instance, 
                                                      
878 Japan's second written submission, para. 193; Chinese Taipei's second written submission, para. 
185; Chinese Taipei's second  oral statement, para. 18. 
879 United States' second written submission, para. 100; Japan's second written submission, para. 191; 
Chinese Taipei's second oral statement, para. 17.  Chinese Taipei submits that the  European Court of Justice in 
Kamino  confirmed that any CNEN and HSEN that would require exclusive use with an automatic data-
processing machine for a classification under heading 8471 is inapplicable, since it would modify the scope of 
Note 5(B)(a) to Chapter 84 (Chinese Taipei's first written submission, para. 208). 
880 European Communities' first written submission, paras. 159 and 166. 
881 United States' response to Panel question No. 20; Japan's second written submission, para. 194; 
Chinese Taipei's second written submission, para. 182. 
882 Japan's second written submission, para. 194;  Japan's response to Panel question No. 20. 
883 Chinese Taipei's response to Panel question No. 20. 
884 Chinese Taipei submits that the European Communities' application of GIR3(c) would regardless be 
inconsistent with its obligations, because it considers that  it would not lead to classification of display devices 
under heading 8528 but instead to duty-free headings 8531 or 9013 that equally merit consideration and occur 
later in numerical order than 8528 (Chinese Taipei's fi rst written submission, para. 3 40; Chinese Taipei's second 
written submission, para. 186). 
885 United States' response to Panel question No. 20. WT/DS375/R 
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  "output units".  We recognize that HS1996 Note 5 to  Chapter 84 is relevant in determining whether 
the flat panel display devices identified by the comp lainants – those flat panel display devices that are 
fitted with a DVI interface, or similar connector, and/or are capable of reproducing and receiving 
video signals from automatic data-processing machines as well as other sources – could fall within the 
scope of 8461 60.
   We thus begin our analysis of what c ontext Note 5 provides to an understanding of 
the concession in 8471 60.   
7.653  HS1996 Note 5 to Chapter 84 provides886:  
"Chapter 84 Nuclear reactors, boilers, machinery and mechanical appliances; parts thereof 
Notes.  
[...] 
5.(A)  For the purposes of heading No. 84.71, the expression "automatic data-
processing machines" means : 
(a)  Digital machines, capable of (1) st oring the processing program or programs 
and at least the data immediately neces sary for the execution of the program;  
(2) being freely programmed in accordance with the requirements of the user; (3) performing arithmetical computations specified by the user; and, ( 4) executing, without human intervention, a processing program which requires them to modify then-execution, by logical decision during the processing run; 
(b)  Analogue machines capable of si mulating mathematical models and 
comprising at least: (1) analogue elements, control elements and programming elements;  
(c)   Hybrid machines consisting of either a digital machine with analogue 
elements or an analogue machine with digital elements. 
(B) Automatic data-processing machines may be in the form of systems consisting of 
a variable number of separate units.  Subject to paragraph (E) below, a unit is to be regarded as being a part of a complete system if it meets all of the following conditions:  
(a) It is of a kind solely or principally u sed in an automatic data-processing system; 
(b) It is connectable to the central processing unit either directly or through one or more 
other units; and 
(c) It is able to accept or deliver data in a form (codes or signals) which can be used by 
the system. 
(C) Separately presented units of an auto matic data-processing machine are to be 
classified in heading No. 8471. 
                                                     
 
886 Exhibits US-84; JPN-23; EC-15.  WT/DS375/R 
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  (D) Printers, keyboards, X-Y co-ordinate input  devices and disk storage units which 
satisfy the conditions of para graphs (B) (b) and (B) (c) a bove, are in all cases to be 
classified as units of heading No. 8471. 
(E) Machines performing a specific function other than data-processing and 
incorporating or working in conjunction with an automatic data-processing machine 
are to be classified in the headings appropriate to their respective functions or, failing that, in residual headings. 
[...] Subheading Notes.  
1.- For the purposes of subheading No. 8471. 49, the term "systems" means automatic 
data-processing machines whose units satisfy th e conditions laid down in Note 5(B) 
to Chapter 84 and which comprise at least  a central processing unit, one input unit 
(for example a keyboard or scanner), and one output unit (for example, a visual 
display unit or a printer)." 
7.654  The parties have additionally discussed the relevance of HSEN1996 to headings 8471 and 
8528.   
7.655  HSEN1996 to Heading 8471 provides: 
"I.–      Automatic data-processing machines and units thereof (…) 
D.–      Separately presented units 
This heading also cover separately presente d units of data-processing systems. These 
may be in the form of units having a separate housing and designed to be connected, for example, by cables to other machines on a system, or in the form of units not 
having a separate housing and designed to be  inserted into a machine (e.g., insertion 
onto the main board of a central processing unit). Constituent units are those defined 
in Parts (A) and (B) above as being parts of a complete system. 
Among the constituent units included are disp lay units of automatic data-processing 
machines which provide a graphical representation of the data processed. They differ from the video monitors and television r eceivers of heading 8528 in several ways, 
including the following:  
(1)      Display units of automatic da ta-processing machines are capable of accepting a 
signal only from the central processing unit of an automatic data-processing machine 
and are therefore not able to reproduce a colour image from a composite video signal 
whose waveform conforms to a broadc ast standard (NTSC, SECAM, PAL, D-MAC 
etc.). They are fitted with connectors ch aracteristic of data-processing systems (e.g. 
RS-232C interface, DIN or SUB-D connectors)  and do not have an audio circuit. 
They are controlled by special adaptors (e.g. monochrome or graphics adaptors) which are integrated in the central pro cessing unit of the data-processing machine.  WT/DS375/R 
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  (2)      These display units are characterised by low magnetic field emissions. Their 
display pitch starts at 0.41 mm for medi um resolution and ge ts smaller as the 
resolution increases.  
(3)      In order to accommodate the presentation of small yet well-defined images, 
display units of this heading utilise smaller dot (pixel) sizes and greater convergence standards than those applicable to video monitors and television receivers of heading 8528. (Convergence is the ability of the electron gun(s) to excite a single spot on the face of the cathode-ray tube without disturbing any of the adjoining spots.)  
(4)      In these display units, the vi deo frequency (bandwid th), which is the 
measurement determining how many dots can be transmitted per second to form the 
image, is generally 15 MHz or greater. Whereas, in the case of video monitors of heading 8528, the bandwidth is generally  no greater than 6 MHz. The horizontal 
scanning frequency of these display units varies according to the standards for 
various display modes, generally from 15 kHz to over 155 kHz. Many are capable of 
multiple horizontal scanning frequencies. Th e horizontal scanning frequency of the 
video monitors of heading 8528 is fixed,  usually 15.6 or 15.7 kHz depending on the 
applicable television standard. Moreover , the display units of automatic data-
processing machines do not operate in confor mity with national or international 
broadcast frequency standards for public broa dcasting or with frequency standards for 
closed-circuit television.  
(5) Display units covered by this head ing frequently incorporate tilt and swivel 
adjusting mechanisms, glare-free surfaces, flicker-free display, and other ergonomic 
design characteristics to facilitate prolonged periods of viewing at close proximity to 
the unit...".
887 
7.656  HSEN1996 to Heading 8528 provides:  
"This heading covers television receivers  (including video monitors and video 
projectors), whether or not incorporating radio-broadcasting receivers or sound or 
video recording or reproducing apparatus.  
This heading includes:  (1) Television receivers of the kind used in  the home (table models, consoles, etc.) 
including coin-operated televisions sets. 
(…) (5)      Video monitors which are receivers connected directly to the video camera or 
recorder by means of co-axial cables, so  that all the radio-frequency circuits are 
eliminated. They are used by television companies or for closed-circuit television 
(airports, railway stations, steel plants, hospitals, etc.). These apparatus consist 
essentially of devices which can generate a point of light and display it on a screen synchronously with the source signals. They incorporate one or more video amplifiers 
with which the intensity of the point can  be varied. They can, moreover, have 
separate inputs for red (R), green (G) and bl ue (B), or be coded in accordance with a 
                                                     
 
887 Exhibit EC-11.  WT/DS375/R 
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  particular standard (NTSC, SECAM, PAL, D-MAC, etc.). For reception of coded 
signals, the monitor must be equipped  with a decoding device covering (the 
separation of) the R, G and B signals. The most common means of image 
reconstitution is the cathode-ray tube, for direct  vision, or a projector with up to three 
projection cathode-ray tubes; however, other monitors achieve the same objective by different means (e.g., liquid crystal screens , diffraction of light rays on to a film of 
oil).  
Video monitors of this heading should not be confused with the display units of 
automatic data-processing machines described in the Explanatory Note to heading 
8471. 
(...) 
* 
*  * 
 
The heading excludes, inter alia :  
(a) Display units of automatic data-processing machines, whether or not presented 
separately (heading 8471) ...".888 
7.657  The parties have also addressed the relevance of GIR 3(c) which provides:  
"When goods cannot be classified by reference to Rule 3 (a) or 3 (b), they shall be 
classified under the heading which occurs last in numerical order among those which 
equally merit consideration". 
7.658  Finally, in respect of this rule, HSEN1996 Expl anatory Note VI to Section Note 3 as follows: 
"In general, multi-function machines are classi fied according to the principal function 
of the machine. 
(…) Where it is not possible to determine the pr incipal function, and where, as provided in 
Note 3 to the Section, the context does not  otherwise require, it is necessary to apply 
General Interpretative Rule 3 (c); such is the case, for example, in respect of multi-
function machines potentially classifiable in sev eral of the headings 84.25 to 84.30, in 
several of the headings 84.58 to 84.63 or in several of the headings 84.69 to 84.72."
889 
7.659  We recall from paragraph 7.34 above that Article 1(a) of the HS Convention provides that the 
HS comprises headings and subheadings and thei r related numerical codes, as well as the section, 
chapter and subheading notes and GIRs.  Under Article  3.1(a) of the HS Convention, each contracting 
party seeks to ensure that its domestic nomenclature is in conformity with the HS, and to use the 
headings and subheadings of the HS without addition  or modification, and apply the GIRs and all the 
                                                      
888 HSEN1996 to heading 8528 (Exhibit EC-17). 
889 Exhibit EC-16. WT/DS375/R 
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  Section, Chapter and Subheading Notes, and in doing so, it shall not modify the scope of the Sections, 
Chapters, headings or subheadings of the Harmonized System.
890   
7.660  The GIRs provide the interpretative principl es which govern the classification of goods.  
GIR 1 provides that: 
"The titles of Sections, Chapters and sub-Ch apters are provided for ease of reference 
only; for legal purposes, classification shall be determined according to the terms of 
the headings and any relative Section or Chapter Notes and, provided such headings 
or Notes do not otherwise require, accordin g to the following provisions:" (emphasis 
added) 
7.661  We observe that HS1996 Note 5 to Chapter 84 is  organized in a way similar to the heading 
itself.  Note 5(A) defines an automatic data-proces sing machine; Note 5(B) describes how a "unit" can 
qualify as part of a "complete system"; Note 5(C) addresses units presented separately; Note 5(D) to printers, keyboards and X-Y devices and disk storag e units; and Note 5(E) to machines incorporating 
or working in conjunction with an automatic  data-processing machine and performing a specific 
function other than data-processing. 
7.662  With respect to the three criteri a in Note 5(B), we note that the main disagreement among the 
parties is the relevance of the requirement in Note  5(B)(a) of a determination as to the scope of the 
coverage of the term "output units " in subheading 8471 60.  Namely, that to be regarded as part of a 
complete system, the "unit" must be "of a kind so lely or principally used in an automatic data-
processing system".  The European Communities does not dispute that chapter note 5(B) is applicable 
to the question of what types of products fit within  the subheading 8471 60 and that a product must be 
solely or principally used in an automatic data-pro cessing system in order to fall within the scope of 
the concession.
891  However, it argues that HSEN1996 to h eading 8471 is relevant to understanding 
Note 5(B)(a).892   
7.663  In response to a question posed by the Panel on the meaning of the phrase "of a kind" in Note 
5(B)(a), the WCO Secretariat explains that the HS  Nomenclature Committee considered the issue, but 
declined to issue an Interpretativ e Rule defining the expression.  Therefore, in the WCO Secretariat's 
view, it would "seem reasonable to conclude that th e Nomenclature Committee was, in effect, leaving 
the interpretation of the expressions to each admini stration to apply, on a case-by-case basis, in the 
context of classifying specific articles." 893  
7.664  We note that the chapeau to Note 5(B) tells us  that the note provides guidance in determining 
whether a unit can be regarded as being part of a co mplete system.  We are not convinced that a unit 
needs to be regarded as part of a complete system  to fall within the meaning of the term "input or 
output units" in subheading 8471 60 as a unit could also be presented separately as explained in Note 
5(C) or fall within the meaning of Note 5(D).894  Note 5(C) provides that separately presented units of 
                                                      
890 Exhibits EC-15; US-8; TPKM-6. 
891 European Communities' second written submission, para. 130. 
892 European Communities' first written submission, para. 158. 
893 WCO responses to Panel questions, pp. 5-6. 
894 The Panel notes that HS96 subheading 8471 60 does not refer to "systems" or "complete systems", 
rather HS96 subheading 8471 49 is the only subheading of HS96 heading 8471 which refers to systems.  
Although not raised by the parties in this dispute, this ma y raise a question whether Note 5(B) is applicable to all 
"units" or only those units that are to be regarded as forming part of a complete system.  We note that in para. 7.626 above, based on the plain meaning of the terms, we considered that a unit of an ADP is a device that 
forms "part of an ADP or an ADP system" and that performs "at least one specified function involving  WT/DS375/R 
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  an ADP machine "are to be classified in heading 8471."    Additionally, Note 5(D) provides that 
printers, keyboards, X-Y co-ordinate input devices a nd disk storage units which satisfy the terms of 
Notes 5(B)(b) and (B)(c) are in all cases to be classified as units of heading 8471.  
7.665  We are of the view that these provisions of th e Chapter Note must be read holistically and 
cannot be read in such a way that whether a par ticular device falls within heading 8471 would differ 
depending on how it is presented at the border, i.e. , separately or as part of a complete system.  We 
also note that the requirement in Note 5(B)(a) that un its be "of a kind solely or principally used in an 
automatic data processing system" resonates within  an expression of what we have already found to 
be the plain meaning of an "unit "of" an ADP machine".
895  We also recall that an ADP system is 
defined in the subheading note as consisting of at least a CPU, one input unit, and one output unit.896  
Therefore, regardless of whether a unit is presented as part of a complete ADP system or separately it must be "of a kind solely or principally used  in an automatic data processing system".  
7.666  The term "principally" means "for the most par t; in most case", "in the chief case, above all, 
pre-eminently" or "for the most part; in most cases".
897  The formulation of "solely" or "principally" as 
alternatives thus means that it is not necessary for a unit to be used exclusively in an automatic data-
processing system for it to be to be classified with in heading 8471. While Note 5(C) is formulated 
differently as, "separately presented units of an automatic data-processing machine", in our view, Note 
5 has to be read holistically and in its entirety su ch that heading 8471 should not apply differently to 
units whether presented separately or as part of a complete system.  Accordingly, we understand the 
term "of" in 5(C) embodies the conditions set forth in 5(B). 
7.667  We note that HSEN1996 to heading 8471 app ears to contradict HS1996 Chapter Note 
5(B)(a).  In particular, Chapter I(D) to HSEN1996 to heading 8471 indicates that separately presented 
units of data-processing systems may form part of a complete system, as discussed above.  However, 
its point 1 states that "[d]isplay units of auto matic data-processing machines are capable of accepting 
a signal only from the central processing unit of an auto matic data-processing machine" (emphasis 
added) while Chapter Note 5 provides that 8471also c overs units that are principally for use with an 
automatic data-processing machine.  Since an explan atory note cannot alter the scope of the HS, we 
consider that Chapter I(D) to HSEN1996 to headi ngs 8471 does not justify excluding flat panel 
display devices from heading 8471, merely because th ey can also connect to sources other than an 
automatic data-processing machine.898  In this respect, we note that the Appellate Body in 
                                                                                                                                                                     
sending/receiving signals, informati on or data from the ADP or ADP sy stem."  While the Panel does not 
exclude an interpretation whereby "units" might nevertheless fall under Note 5(C) or 5(D), for example, the 
Panel does not consider that it makes a substantive difference in the circumstances of this dispute, and it therefore does not consider it necessary to rule on this matter. 
895 See paragraph 7.626 above where we stated that, based on the plain meaning of the terms, units of 
an ADP are devices that form part of an ADP or an AD P system and that perform at least one specified function 
involving sending/receiving signals, informati on or data from the ADP or ADP system. 
896 Subheading Note 1 (for 8471 49) cited in Japan's first written submission, fn. 69.  Subheading Note 
1 clarifies that for the purposes of subheading 8471 49 the term "systems" means computers "whose units satisfy 
the conditions laid down in Note 5(B) to chapter 84 an d which comprise at least a central processing unit, one 
input unit (for example a keyboard or a scanner) and one output unit (for example a visual display unit or a 
printer). 
897 Chinese Taipei's first written subm ission, para. 335 (referring to the  Shorter Oxford Dictionary 
(1993), p  2356). 
898 In this respect, we note that the European Cour t of Justice ruled that point 1 to Chapter I(D) to 
HSEN1996 was to be considered inapplicable, since th e requirement that display units of automatic data-
processing machines are capable of accepting a signal only from the central processing unit of an automatic WT/DS375/R 
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  EC - Chicken Cuts explained that Chapter Notes to the Ha rmonized System, which are binding, can 
have greater probative value than HSEN.
899  We are of the view that the Chapter Notes provide 
relevant guidance here. 
7.668  Note 5(D) provides additional context to unders tanding what the crucial features are of an 
"input or output unit" of an automatic data-processi ng machine.  Note 5(D) provides that a printer, 
keyboard, or X-Y device which satisfies the terms of Notes 5(B)(b) and (B)(c) falls within the heading 
8471.  This may indicate that the criteria in Note 5( B)(b) and (B)(C) are important to units of heading 
8471.  The implications on the relevance of Note 5( B)(a) are unclear, however, as it may only be that 
the types of units enumerated in Note 5(D) are so  obviously part of a system of an automatic data-
processing machine that it would not be necessary to  assess whether these units were of a kind solely 
or principally for use with an automatic data-processing machine. 
7.669  Finally, Chapter Note 5(E) to HS1996 Chapter 84 provides for a classification of machines 
incorporating or working in conj unction with an automatic data -processing machine and performing a 
specific function other than data-processing.  According to this note, these "are to be classified in the 
headings appropriate to their respective functions or, failing that, in residual headings". There has 
been no argument before us, however, that the products at issue in this dispute are "machines 
incorporating or working in conj unction with an automatic data -processing machine and performing a 
specific function other than data-processing".  Noth ing in Note 5(E) instructs on how to determine 
whether a product which performs data processing and a specific function other than data processing 
may fall within the scope of heading 8471.  The Pa nel notes that monitors that can operate as display 
units of an automatic data-processing machine therefor e do not appear to fall within the scope of the 
note. 
7.670  Our analysis of Note 5 to HS1996 Chapter 84 and the HSEN1996 to heading 8471 has led us 
to understand that automatic data-processing machin e "units" that are of a kind used solely or 
principally with an automatic data-processing ma chine are to be covered under heading 8471, 
regardless of whether they are presented separately or as part of a complete system.  This is also true 
of units that are printers/keyboards/X-Y units or th at are disk storage units.  This provides important 
contextual guidance as to the parameters of the scope  of this concession.  The comprehensive scope of 
the Chapter Note reinforces our conc lusion that heading 8471 is broad. 
7.671  This analysis further informs our understanding that input or output units of an ADP machine 
under subheading 8471 60 of the EC Schedule includes devices that are "of a kind solely or 
principally used by an automatic data-processing sy stem", and that perform at least one specified 
function that involves accepting or delivering data in a form (codes or signals) that can be used by the 
automatic data-processing machine or "automat ic data-processing machine system".  More 
specifically, tariff item number 8471 60 90 of the EC Sc hedule would cover all "input or output units" 
that are not "for use in civil aircraft" (8471 60 10), "printers" (8471 60 40) or "keyboards" 
(8471 60 50).  These Notes also inform our understa nding that not all devices capable of connecting 
to an automatic data-processing machine by accepting or delivering data from or to an automatic-data-
processing machine necessarily  qualify as an input or output unit of heading 8471.   
7.672  Finally, we observed that GIR 1 directs contracti ng parties to the HS to consider the terms of 
the headings and any relevant Section or Chapter Notes in classifying goods at their border, and 
otherwise, according to the principles in the remain ing GIRs 2-6. We note that GIR 2 pertains to 
                                                                                                                                                                     
data-processing machine would have the effect of amending and, in particular, of restricting the scope of Note 
5(B)(a) to Chapter 84 of the CN (See European Court of Justice (Kamino), paras. 49-50 (Exhibit TPKM-52)). 
899 Appellate Body Report on EC – Chicken Cuts , para. 224.  WT/DS375/R 
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  incomplete or unfinished articles, or mixtures or co mbinations, none of which are applicable in this 
case.  GIR 3 sets forth applicable rules when goods are prima facie classifiable under two or more headings.
900  We note that we do not need to consider th is issue further as it is not relevant in the 
circumstances of the present case. The issue before us is  whether at least some of the products at issue 
(that is, with particular characteristics such as po ssessing a DVI connector and/or the ability to receive 
and display signals from both ADP and non-ADP sour ces) will fall within the scope of the 8471 60.  
We are not called upon to determine whether all such  products fall within this concession, or whether 
in some instances,  some products with those charact eristics may be properly considered to fall within 
the scope of other concessions.  We find that GIRs Rules 4-6 are also inapplicable here. 
Other parts of the EC Schedule  
7.673  In addressing the complainants' separate Artic le II claims concerning the FPDs narrative 
description and tariff item number 8471 60 90 in the EC Schedule, the European Communities has identified heading 8528 under the HS1996 as anothe r potential relevant headings under which the 
products discussed by the complainants should be classified. 
7.674  We observe that the general structure of headi ng 8528 in the EC Schedule, which is identical 
to HS1996 heading 8528, is as follows:  
HS1996 Description 
8528 Reception apparatus for television, whether or not incorporating radio-
broadcast receivers or sound or video recording or reproducing apparatus; 
video monitors and video projectors: 
 - Reception apparatus for television, whether or not incorporating radio-
broadcast receivers or sound or video recording or reproducing apparatus  
8528 12   - - Colour 
8528 13   - - Black and white or other monochrome 
 - Video monitors 
8528 21   - - Colour 
8528 22   - - Black and white or other monochrome 
8528 30 - Video projectors 
 
7.675  The European Communities  considers that a key issue before the Panel is whether the 
products discussed by the complainants fall within  the scope of the concession: (i) under tariff item 
number 8471 60 90, (ii) under any of subheadings 85 28 21 and 8528 22, and 8528 12 and 8528 13, as 
either "video monitors" or "reception apparatus for television", or (iii) prima facie, under both tariff 
item number 8471 60 90 and any one of the subheadings of 8528.901  We note that the European 
Communities has not provided a detailed analysis of  the meaning that should be attributed to the 
terms of the identified HS1996 subheadings under 8528 or its scope of coverage.   
                                                      
900 We note that the Appellate Body in EC – Chicken Cuts  explained that an asse ssment of the scope of 
a tariff commitment is a first step that should not be confused with the determination of where a product is 
properly classified.  It explained that  GIR 3 is only relevant in a classifi cation exercise. (Appellate Body Report, 
EC – Chicken Cuts , para. 234). We note that GIR 3(c) provides general guidance in cases where classification 
cannot be determined based either on the specific descrip tion of a heading or the esse ntial character of a good.  
We thus do not consider this provision sheds light on our understanding of "output unit" in heading 8471 in the circumstances of this case. 
901 European Communities' first written submission, paras. 100-101. WT/DS375/R 
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  7.676  The complainants submit that the ordinary meaning of the terms of tariff item number 
8471 60 90, considered in the context of HS 1996 subheading 8471 60 and the HS1996 Note 5 to 
Chapter 84 support their view that a device that is pr incipally used for computers, but is also capable 
of receiving a signal from sources other than an auto matic data-processing machine, or equipped with 
a DVI or similar interface, is a "unit" of an au tomatic data-processing machine within the ordinary 
meaning of the language in HS1996 heading 8471.
902   
7.677  The Panel will address below the relevance of whether the products at issue properly fall 
within the scope of the dutiable concession under HS 1996 heading 8528, to the extent relevant.  Here, 
we address only whether the terms of HS1996 headin g 8528 have any relevance for the interpretation 
of the scope of coverage of tariff item number 8471 60 90 in the EC Schedule. 
7.678  We do not consider that the terms in head ing 8528 lend interpretative assistance to 
determining, in a general sense, the meaning to be given to the terms "input or output units" of 
automatic data-processing machines in th e concession at issue.  The word  "unit" or any explanation of 
that term does not appear in the heading.  Rather  the terms "Reception apparatus for television" and 
"Video monitors" are prominent. 
7.679  As noted above, in the circumstances of this c ase we do not consider it necessary to rule on 
whether some of the products at issue, namely FPDs with DVI and/or the capability to receive and 
display signals from automatic data processing mach ines and other sources, may fall within the scope 
of heading 8528 by virtue of the effect of the HS interpretative rules considered as context.  The issue 
before us whether some such products fall within the scope of heading 8471 60.  Accordingly, we do 
not consider it necessary to cons ider heading 8528 any further. 
7.680  Therefore, we find that an analysis of the othe r portions of the EC Schedule, outside the terms 
of subheading 8471 60, do not provide significant additional guidance in interpreting the scope of the concession in 8471 60 of the EC Schedule.   
(iii) Object and purpose (Article 31 of the Vienna Convention ) 
Arguments of the parties
 
7.681  We recall from our assessment of the partie s' arguments concerning object and purpose903, 
that the complainants  argued that a recognized object and purpose of the WTO Agreement  and GATT 
1994 is providing security and predictability in the reciprocal and mutually advantageous 
arrangements directed to the substantial reduction of tariffs and barriers to trade.904  The complainants 
argue that the objectives of security and predictabi lity also require that c oncessions cover products 
even if they did not exist in that form at the time the concessions were granted as long as they comply 
with the wording of the concessions concerned.905  The complainants also note that both the WTO 
Agreement  and the GATT 1994 recognize "expanding the pr oduction and trade in goods" as another 
                                                      
902 Japan's second written submission, para. 188; Chinese Taipei's second written submission, 
para. 142. 
903 See paras. 7.537-7.549 above. 
904 Complainants' response to Panel question No. 1; Japan's first written submission, paras. 172 
(referring to paragraph 3 of the Preamble to the Marrakesh Agreement; Panel Report on China – Auto Parts , 
para. 7.460 and Appellate Body Report on EC – Chicken Cuts , paras. 243 and 288; Japan's second written 
submission, paras. 409-410; Chinese Taipei's first writte n submission, paras. 144-145; Chinese Taipei's second 
written submission, para. 282. 
905 Japan's first written submission, para. 177; Chinese Taipei's first written submission, paras. 289-290, 
627-630; Chinese Taipei's second written submission, para. 444.  WT/DS375/R 
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  core object and purpose that is furthered by mutually  reciprocal reductions in tariffs. In addition, the 
complainants argue that the ITA may be relevant to analyse the object and purpose of the GATT 1994 
because the ITA is an instrument related to the GATT 1994.
906   
7.682  The European Communities  considers the complainants' interpretative approach is 
overbroad and compromises the legal certainty a nd predictability of tariff concessions, creating the 
risk that Members will become reluctant to pursue the ITA liberalization process. 907 
Consideration by the Panel  
7.683  The Panel  concluded that the relevant object and pur pose with respect to this dispute is the 
general object and purpose of the WTO Agreement  and the GATT 1994 as a whole, which is to 
provide security and predictability in the reci procal and mutually advantageous concessions 
negotiated by parties for the reduction of tariffs and other barriers to trade.  We concluded that the 
ITA should not be considered a basis for determining the object and purpose of the WTO Agreement  
and the GATT 1994. 
7.684  The Panel does not consider that the object and purpose of the WTO Agreement and the 
GATT 1994 provide significant guidance in the circumst ances of the interpretative exercise before us.  
Nevertheless the Panel considers that  the interp retation of the concession at issue discussed above is 
consistent with the object and purpose of the WTO Agreements.  More specifically, tariff item 
number 8471 60 90 of the EC Schedule would cover all "input or output units" that are not "for use in 
civil aircraft" (8471 60 10), "printers" (8471 60 40) or "keyboards" (8471 60 50). 
(iv) Subsequent practice (Article 31(3)(b) of the Vienna Convention ) 
7.685  We recall from above908, that the European Communities  argued that the specific 
classification practice of the United States and the practice of ITA participants between 1997 and 1999 provides other relevant means to  interpret the FPDs narrative description.
909  In this latter 
respect, the European Communities co mpares particular HS subheadings notified by ITA participants 
in 1997, with updates to those HS subheadings notif ied by ITA participants in connection with the 
FPDs narrative description in 1999. 
7.686  The Panel  determined that evidence submitted by the European Communities regarding HS 
subheadings notified by ITA participants is not re levant in assessing "subsequent practice" within the 
meaning of Article 31(3)(b) of the Vienna Convention.910  We additionally conc luded that evidence is 
too limited to draw conclusions a bout the "consistency" of the United States classification practice 
broadly.911   
7.687  We, therefore, do not consider further the evidence presented by th e European Communities 
regarding the existence of a consistent practice rega rding the potential range of different products that 
may be classifiable under this HS subheading 8471  60 or under other headings discussed in this 
dispute, such as HS subheading 8528.   
                                                      
906 United States' and Chinese Taipei's responses to Panel question No. 1; Chinese Taipei's second 
written submission, para. 15. 
907 European Communities' first written submission, paras. 170-172. 
908 See paras 7.550, 7.553 and 7.555 above. 
909 European Communities' first written submission, paras. 174-177. 
910 See para. 7.563 above. 
911 See para. 7.564 above. WT/DS375/R 
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  (v) Other arguments 
Arguments of the parties
 
7.688  Chinese Taipei argues that subheading 8528 51, as it appears in the HS2007, further supports 
the conclusion that flat panel display devices of a kind used at least principally  with an ADP machine 
are to be classified under a heading that treats them  as output units of an ADP machine.  Under the 
HS2007, Chinese Taipei argues that HS2007 Note 5 to Chapter 84 indicates that output units of an ADP machine classifiable under HS 1996 subheading 8471 60 are now classifiable under subheading 
8528 51 as monitors "[o]f a kind solely or principally  used in an automatic data-processing system of 
heading 8471".  Chinese Taipei notes further under the HS2007, the requirement of "sole or principal" 
use, that previously appeared in the text of HS1996 Note 5(B)(a) to Chapter 84 pertaining to heading 
8471 is now included in the wording itself of HS2007 subheading 8528 51.  In its view, this change demonstrates that the notion of an "exclusive use"  requirement for consideration as an output unit of 
an automatic data-processing m achine has been rejected.
912 
7.689  The European Communities  has argued that subsequent versions of the HS are not relevant 
to the interpretation of the concessi ons at issue in this dispute which were made on the basis of the 
HS1996.913 
Consideration by the Panel  
7.690  The Panel notes that Chinese Taipei has not specified  that the Panel should consider the 
relevance of the HS2007 as supplementary means of  interpretation under Article 32 of the Vienna 
Convention. 
7.691  We have found, in interpreting the Eur opean Communities' commitment under tariff item 
number 8471 60 90 in accordance with Article 31 of the Vienna Convention, that the concession 
covers devices that form part of an "automatic  data-processing machine" are "of a kind solely or 
principally used by an automatic data-processing sy stem" and that perform at least one specified 
function that involves accepting or delivering data in a form (codes or signals) that can be used by the 
automatic data-processing machine or "automat ic data-processing machine system".  More 
specifically, tariff item number 8471 60 90 of the EC Sc hedule would cover all "input or output units" 
that are not "for use in civil aircraft" (8471 60 10), "printers" (8471 60 40) or "keyboards" (8471 60 50).   
7.692  We recall that under Article 32 of the Vie nna Convention, recourse may be had to 
"supplementary means of interpretation" in two di stinct circumstances, namely, either to confirm  the 
meaning of the treaty terms resulting from the applica tion of Article 31 or to determine such meaning, 
but only if the Article 31 interpretation left the meaning ambiguous or obscure, or led to a result 
manifestly absurd or unreasonable.
914  The Appellate Body in EC – Chicken Cuts  has indicated that 
documents published, events occurring,  or practice followed subsequent to  the conclusion of the treaty 
may be relevant for considerati on under Article 32 of the Vienna Convention to the extent that the 
instrument or document reflects the "common intentions  of the parties' at the time of the conclusion" 
                                                      
912 Chinese Taipei's first written submission, paras. 343-346. 
913 European Communities' first written submission, para. 407. 
914 See para. 7.65.  WT/DS375/R 
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  of the treaty.
915  The Appellate Body emphasized however, that such an assessment must be 
determined on a case-by-case basis.   
7.693  Furthermore, as to what material can qualify as "supplementary means of interpretation", we 
recall the Appellate Body's clarification in EC – Chicken Cuts  that the reference made in Article 32 to 
"preparatory work of the treaty" and "circumstanc es of its conclusion" is not exhaustive, indicating 
that "an interpreter has a certain flexibility in co nsidering relevant supplementary means in a given 
case so as to assist in ascertaining the common intentions of the parties."916   
7.694  It follows therefore that the fact that the HS2007 is not preparatory work of the treaty or 
circumstances of the conclusion of the treaty, does not per se  disqualify it from being considered  
supplementary means of interpretation under Article  32. Nor can the fact that the HS2007 occurred 
subsequently to the conclusion of the treaty be per se  a reason to disqualify it under Article 32, so 
long as it serves to indicate what were the "common intentions of the parties" at the time of the conclusion of the treaty, i.e. at the time they bound their Schedules.
 917   
7.695  We note that the HS is constantly evolving and that, in fact, the HS2007 is the second update 
to the HS since 1996.918 If the current version of the HS or its Chapter or Explanatory Notes contained 
information that indicated the common intentions of the parties at the time of the conclusion of the treaty it could serve as a supplementary means of interpretation.       
7.696  We note that under HS2007, CN code 8471 60 90 that appears in the EC Schedule no longer 
applies, and that the relevant subheading is no w 8528 51 under the HS2007.  We observe that the 
terms of HS2007 heading 8528 are as follows: 
 Description  
8528 Monitors and projectors, not incorp orating television reception apparatus; 
reception apparatus for television, whethe r or not incorporating radio-broadcast 
receivers or sound or video reco rding or reproducing apparatus. 
 - Cathode-ray tube monitors: 
8528 41 - - Of a kind solely or principally used  in an automatic data -processing system of 
heading 84.71 
8528 49 - - Other 
 - Other monitors: 
8528 51 - - Of a kind solely or principally used  in an automatic data -processing system of 
heading 84.71 
8528 59 - - Other 
 - Projectors 
8528 61 - - Of a kind solely or principally used  in an automatic data -processing system of 
heading 84.71 
8528 69 - - Other 
                                                      
915 Appellate Body Report on EC – Chicken Cuts , para. 305. 
916 Appellate Body Report on EC – Chicken Cuts , para. 283 and para. 305, fn. 574 (relying on the use 
of the word "including" in the text of Article 32 as an indication of its non-exhaustive nature). 
917 Appellate Body Report on EC – Chicken Cuts , para. 305 (footnote omitted). 
918 We note that the HS Committee undertakes a period ic review of the HS, approximately every 4 to 6 
years.  Since the version of the HS that came into  force on 1 January 1996 (the version under which the 
concessions of this case were based on), new versions of the HS have come into force on 1 January 2002 (HS 2002) and 1 January 2007 (HS2007).  It is envisaged that a fifth set of amendments will enter into force on 
1 January 2012. WT/DS375/R 
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   Description  
 - Reception apparatus for television, whether or not incorporating radio-
broadcast receivers or sound or video recording or reproducing apparatus:  
8528 71 - - Not designed to incorporate a video display or screen 
8528 72 - - Other, colour 
8528 73 - - Other, black and white or other monochrome 
 
7.697  In addition we observe that the HS2007 Notes 5( C) and (D) to Chapter 84 differ from those of 
HS1996 as follows: 
"(C)    Subject to paragraphs (D) and (E) be low, a unit is to be regarded as being part 
of an automatic data-processing system if  it meets all of the following conditions: 
(i)      It is of a kind solely or princi pally used in an automatic data-processing system; 
(ii)     It is connectable to the central processing unit either directly or through one or 
more other units; and 
(iii)    It is able to accept or deliver data  in a form (codes or signals) which can be 
used by the system" . 
(D)    Heading 84.71 does not cover the following when presented separately, even if they meet all of the conditions set forth in Note 5 (C) above : 
(...) 
(v)    Monitors and projectors, not in corporating television reception apparatus."
919 
                                                      
919 We recall that HS1996 Note 5 to Chapter 84 provides as follows: 
 "5.(A) For the purposes of heading No. 84.71, the expression "automatic data-processing 
machines" means : 
(a)  Digital machines, capable of (1) storing the processing program or programs and at 
least the data immediately necessary for the execution of the program;  (2) being freely 
programmed in accordan ce with the requirements of the user; (3) performing arithmetical 
computations specified by th e user; and, (4) executing, without human intervention, a 
processing program which requires them to modify then-execution, by logical decision during 
the processing run; (b)  Analogue machines capable of simulating mathematical models and comprising at 
least: (1) analogue elements, control elements and programming elements;  
(c)   Hybrid machines consisting of either a digital machine with analogue elements or an 
analogue machine with digital elements. 
(B) Automatic data-processing machines may be in the form of systems consisting of a 
variable number of separate units.  Subject to paragraph (E) below, a unit is to be regarded as being a part of a complete system if it meets all of the following conditions: 
(a) It is of a kind solely or principally used in an automatic data-processing system; 
(b) It is connectable to the central processing unit either directly or through one or more other units; and 
(c) It is able to accept or deliver data in a form (codes or signals) which can be used by 
the system. (C) Separately presented units of an automatic da ta-processing machine are to be classified in 
heading No. 8471.  WT/DS375/R 
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  7.698  We note that the HS2007 was concluded near ly 10 years after the European Communities 
bound its schedule containing the concession at issue and is actually the second change in the HS since that time.  The Panel believes that it would be difficult to sustain the view that any material so 
remote in time from the conclusion of the treaty c ould serve as supplementary means of interpreting 
the intent of the Members at the time they concl uded the treaty.  However, we do not bar this as a 
possibility.  Indeed, it is possible that the HS2007 could serve as a means of supplementary interpretation if it could be substantiated that it re flected the common intentions of the parties at the 
time of the conclusion of the relevant treaty being examined.   For example, if the Notes 5(C) and 
5(D) to Chapter 84 of the HS2007 specifically stated that the products not to be classified in 8471 had 
been classified therein in previous versions, then  it might be possible to demonstrate the common 
intentions of the Members.  However, there is nothing to indicate as much.  Therefore, we conclude that this particular HS2007 subheading, explan atory note, and Chapter Note cannot serve as a 
supplementary means of interpreting the concessions  the European Communities made in its schedule 
in 1997.   
7.699  Therefore, we find that an analysis of s ubheading 8528 51 as it appears in the HS2007 does 
not provide guidance in interpreting the scope of  the concession in 8471 60, which was based on the 
HS1996 nomenclature. 
(vi) Overall conclusions on the ordinary meaning of the terms tariff item number 8471 60 90 in 
the EC Schedule 
7.700  In our analysis of the text of the tariff c oncession under tariff item number 8471 60 90 in its 
context and in light of the treaty's object and purpose we considered the ordinary meaning of subheading 8471 60 in the EC Schedule.  This analysis  led us to conclude that the meaning applies to 
devices that form part of an "automatic data-pro cessing machine" are "of a kind solely or principally 
used by an automatic data-processing system" and th at perform at least one specified function that 
involves accepting or delivering data in a form (codes or signals) that can be used by the automatic 
data-processing machine or "automatic data-processi ng machine system".  More specifically, tariff 
item number 8471 60 90 of the EC Schedule would cove r all "input or output units" that are not "for 
use in civil aircraft" (8471 60 10), "printers" (8471 60 40) or "keyboards" (8471 60 50).  We are also of the view that not all devices capable of conn ecting to an ADP or ADP system by accepting or 
delivering data from or to an ADP necessarily  qualify as an input or output unit of heading 8471.  We 
did not find any relevant subsequent practice on th e matter.  Furthermore, we do not consider an 
assessment of the changes made under the HS2007 relevant to our interpretation. 
(c) Do the flat panel displays at issue which are the subject of this dispute fall within the scope of 
the narrative description in the Annex to the EC Schedule or HS 8471 60? 
7.701  The Panel has established the scope of the conc ession, i.e., the type of products that are 
covered by the European Commun ities' obligation under Article II of the GATT 1994 to provide duty-
free treatment to products under th e FPDs narrative description and within CN 8471 60 90 in its 
Schedule.  It will now turn to an analysis of whether the complainants have established that the 
measures at issue are inconsistent with its ob ligations arising under the concessions at issue. 
                                                                                                                                                                    
 
(D) Printers, keyboards, X-Y co-ordinate input devices and disk storage units which satisfy 
the conditions of paragraphs (B) (b) and (B) (c) abov e, are in all cases to be classified as units 
of heading No. 8471. 
(E) Machines performing a specific function other than data-processing and incorporating or working 
in conjunction with an automatic data-processing machine are to be classified in th e headings appropriate to 
their respective functions or, failing that, in residual headings." (Exhibits US-84, JPN-23 and EC-15) WT/DS375/R 
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  7.702  We recall that in paragraphs 7.309-7.320 above we determined the products at issue in this 
dispute to be: (i) flat panel display devices capab le of connecting to an automatic data-processing 
machine and that are also capable of reproducing video images from a source other than an automatic 
data-processing machine, and (ii) flat panel displa y devices capable of connecting to an automatic 
data-processing machine and that have a DVI or other type of connector, whether or not they are 
capable of receiving signals from another source.  We  noted that the "flat panel display devices" at 
issue are generally thin, and are not based on CRT  technology.  The complainants focused their 
submissions to a great extent on displays with LCD technology, however, the technology used by a 
flat panel display device is not dispositive to our definition.  Indeed, certain measures at issue focus 
on LCD technology, such as Commission Regulation Nos. 634/2005 and 2171/2005, while CNEN 2008/C 133/01 addresses a larger array of technologi es, including LCD, organic light emitting diode 
(OLED) or plasma, among others. 
7.703  The complainants  assert that the flat panel display devi ces that are capable of connecting to 
an automatic data-processing machine that have a DVI  connector and/or are capable of receiving and 
reproducing signals from sources other than automatic data-processing machines are flat panel display 
devices "for" products within the ITA within the meaning of the FPDs narra tive description, or are 
"output units" within the meaning of tariff item number 8471 60 90 in the EC Schedule.
920  T h e  
complainants argue that a flat panel display devi ce which has the capability of receiving output from 
an automatic data-processing machine by virtue of its DVI connector should not be excluded as being 
"for" an automatic data-processing machine.921  The complainants argue that these products are 
additionally  input or output units within the meaning of tariff item number 8471 60 90 in the EC 
Schedule, because they provide the results of processi ng to the user by means of a visual display of 
information received from the CPU.922   
7.704  The European Communities asserts that it is not in dis pute that certain monitors are 
"genuine ADP monitors" that fall within the dut y-free scope of the concession for tariff item number 
8471 60 90 of its schedule.923  Pursuant to the ruling by the European Court of Justice in Kamino , the 
European Communities acknowledges th at there is a difference between  the relative weight given to 
criteria in the CNEN to headings 8528 41 00 and 8528 51 00 and in Commission Regulation Nos. 
634/2005 and 2171/2005 as compared with the relative weight given by the European Court of Justice to these criteria.
924  However, it argues that not necessarily a ll products identified by the complainants 
fall within the scope of either of the two concessions identified by the complainants.925  The European 
Communities argues that a new product, which it terms "multifunctional LCD monitors" emerged 
following the conclusion of the ITA, that incorporated elements such as LCD technology and DVI and merged products in a way that "cuts right in between the commitments taken and those explicitly 
not taken pursuant to the ITA".
926  It argues these "new" products ar e not to be confused with those 
                                                      
920 Japan and Chinese Taipei observe that, while the concessions may overlap to a certain extent, if a 
product is explicitly covered by one of the concessions, but it is unclear whether it is covered by the other, it is 
still to be extended duty-free treatment (Japan's first wr itten submission, para. 263; Chinese Taipei's second 
written submission, para. 147). 
921 United States' first written submission, para. 129; Japan's first written submission, paras. 267-270; 
Chinese Taipei's first written submission, paras. 185-186. 
922 United States' first written submission, para. 136; Chinese Taipei's first written submission, 
para. 186. 
923 European Communities' first written submission, paras. 100-101. 
924 European Communities' first written submission, paras. 167-169. 
925 European Communities' first written submission, paras. 65-66. 
926 European Communities' first written submission, para. 74.  The European Communities claims that 
LCD technology was not commercialized at the time of negotiations.  It fu rther asserts that the DVI connector 
did not exist at the time the concessions were negotiated, but only two to three years later (European  WT/DS375/R 
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  that were present in 1996, and that they are excluded from duty-free coverage.
927  At a minimum, to 
the extent the products were considered to fall w ithin the scope of tariff item number 8471 60 90, the 
European Communities contends that these products "may  fulfil also" the ordinary meaning of "video 
monitors" under subheadings 8528 21 and 8528 22 in  its Schedule, or, in some cases, "reception 
apparatus for television..." under subheadings 8528 12 and 8528 13.928 
7.705  As a general proposition, the Panel is of the view that if the flat panel display devices at issue 
are determined to be within the scope of th e concession based on the FPDs narrative description 
concession, or within the scope of the concession in  tariff item number 8471 60 90, then the European 
Communities is obliged to provide them with duty-fre e treatment pursuant to Article II:1(a) and (b) of 
the GATT 1994. 
7.706  We will begin our analysis with the question of whether the flat panel display devices at issue 
are covered either by the tariff concession based  on the FPDs narrative description concession, and 
then turn to the concession in tariff item number 8471 60 90. 
(i) Arguments of the parties 
7.707  The complainants  submit that the flat panel display devices at issue use a DVI connector to 
transmit the information from the computer to the display, thereby qualifying these products as both flat panel display devices "for" computers or ot her ITA products, and "output units" within the 
meaning of tariff item number 8471 60 90 in the EC Schedule.
929  The complainants argue that a DVI 
is a standard computer connector that is displa y technology independent and was developed for the 
computer industry to allow computers to transmit digital signals to a display device.930   
7.708  The United States  argues that approximately half of all LCD monitors have a DVI 
connector.931  It claims that some devices with a DVI connector, such as the Apple Cinema Display, 
discussed in the context of this dispute, must  be connected to a computer in order to receive video 
signals because such displays are configured to accept a single signal and a single bandwidth.932   
                                                                                                                                                                     
Communities' first written submission, paras. 87-88).  For these reasons, the European Communities concludes 
that, a fortiori , multifunctional monitors could not have existed at the time of negotiations to be considered 
within the concessions (European Communitie s' first written subm ission, para. 90). 
927 European Communities' first written submission, paras. 71-76. 
928 European Communities' first written submission, paras. 100-101. 
929 United States' first written submission, paras. 129 and 136; Japan's first written submission, 
para. 303. 
930 United States' first written submission, para. 129.  The United States refers to a Paper of Digital 
Display Working Group, Digital Visual Interface (DVI) Revision 1.0p, p.5 (March 30, 1999) ("DDWG Paper") 
(Exhibit US-35), which discusses the DVI specification as "provid[ing] a high-speed digital connection for visual data types that is display technology independent" and "primarily focused at providing a connection 
between a computer and its display device" and "meet[i ng] the needs of all segments of the PC industry 
(workstation, desktop, laptop, etc)" and "enabl[ing] these different segments to unite around one monitor interface standard".  The United States additional refers  to Carmack and Tyson, How Computer Monitors Work, 
p. 5, indicating that "DVI keeps data in digital form from the computer to the monitor".  Japan's first written 
submission, para. 275; Chinese Taipei's first written submission, para. 13. 
931 United States' first written submission, para. 129; United States' second written submission, para. 
90; referring to Apple product manual (Exhibit US-78).   
932 United States' first written submission, para. 130, referring to Apple Cinema Displays: Technology 
Overview (May 2005) (referring to http://images.apple.co m/pro/pdf/L309968A_Display_TO.pdf, p. 22 (listing a 
PC, Power Mac, or Powerbook computer as requirements  for operability) (Exhibit US-78); see also Exhibit US-WT/DS375/R 
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  7.709  In particular, it submits that certain displays  – the Apple Cinema Display – cannot operate 
without  a computer.
933   
7.710  With the advent of LCD technology in computer  displays, Japan argues that the DVI standard 
was necessary to allow a digital-to-digital conn ection to support connectability with computers.934  
Japan  argues that the DVI standard became the "d e facto standard" for an interface permitting the 
display of digital information received from a co mputer, based on support by leading computer 
companies.935  Japan argues it is not in dispute that LC D monitors with DVI can connect to the CPU 
of an automatic data-processing machine.936 
7.711  The complainants consider that merely because a DVI connector enables a flat panel display 
device to reproduce and receive signals does not m ean the device is no longer "for" a computer.  
Neither is a display with DVI no longer a "unit" of an automatic data-processing machine or system, 
just because it transmits information displayed from sources other than an automatic data-processing 
machine.937  In accordance with Notes 5(B) and (C) of  HS1996 Chapter 84, the complainants argue 
that the mere possibility that a monitor could be c onnected to something other than an automatic data-
processing machine is not sufficient to exclude it from heading 8471 because coverage under that 
heading is extended to devices that are either sole ly or principally used in an automatic data-
processing system.938 
7.712  The United States and Japan argue that reliance on a "sole or principal use" standard cannot 
be reconciled with the notion that monitors "capable  of connecting to a device other than a computer" 
are not entitled to duty-free treatment.  It consid ers this to be contradicted by the European 
Communities own duty suspension, which states th at LCDs are "mainly used as output units of 
automatic data-processing machines" but are treated as not "principally" used in an automatic data-
processing system".  The United States argues that  "mainly" and "principally" are synonyms.939   
7.713  Japan argues that under Note 5(C) to Chapter 84, a flat panel display device that is a 
separately presented unit must be "of" a computer, where the term "of" is interpreted broadly.  
Otherwise, Japan argues that "principally" within No te 5(B) means "for the most part, in most cases" 
which necessarily means that a unit may be used in  connection with machines other than automatic 
data-processing machines, and still qualify as "units".940  On the contrary however, it argues that the 
EC measures only allow minimally duty-free treatment for products that solely connect to a computer, 
                                                                                                                                                                     
50, including GB5002860943 (UK, April 13, 2007), classifying a display with DVI in a dutiable tariff line, 
while describing it as "solely for use with an automatic data-processing system". 
933 United States' second written submission, para. 90; referring to Apple product manual (Exhibit 
US-78). 
934 Japan's first written submission, paras. 278-279.  In contrast to computers, Japan argues that 
virtually no DVD players can connect to an LCD monitor through a DVI (Japan's first written submission, 
fn. 123). 
935 Japan's first written submission, para. 275. 
936 Japan's first written submission, para. 331. 
937 United States' first written submission, para. 132; United States first written submission, para. 135. 
938 United States' first written submission, para. 138. 
939 United States' first written submission, para. 132 (referring to Commission Regulation No. 
493/2005, p. 1). 
940 Japan's first written submission, para. 334 (ref erring to the Shorter Oxford (1993), p.2356).  WT/DS375/R 
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  reading the word principally out of the concession.
941  Chinese Taipei submits  that "principally" 
means "in the chief case" or "for the most part, in most cases".942 
7.714  The European Communities  states that it understands the co mplainants' claim under tariff 
item number 8471 60 90 to concern monitors that are "solely or principally" for use with an automatic 
data-processing machine, whereas it understands th e complainant's claim pursuant to the FPDs 
narrative description to cover devices that are "merely capable of operating with a computer".943  It 
considers that these two claims are different in scope.944  Moreover, it contends that the complainants 
have argued that televisions and video monitors fall within this concession, a proposition with which 
it strongly disagrees.945 
7.715  The European Communities argues that the co mplainants have not established that the 
identified criteria are dispositive with rega rd to classification under a dutiable heading.946  T h e  
European Communities argues that th e decision on whether or not a given monitor is used solely or 
principally in an automatic data-processing system  to qualify for duty-free treatment requires a case-
by-case analysis based on objective technical charac teristics as laid down in HSEN1996 to heading 
8471, with the exception of point 1 of Chapter I(D), th at the European Court of Justice determined to 
be inapplicable in the European Court of Justice Kamino ruling.947  In determining the classification of 
displays, the European Communities argues that it currently takes into consideration a number of 
technical characteristics, including screen resolution,  aspect ratio, bandwidth, size, and the presence of 
a DVI connector.  For instance, the European Co mmunities submits that it has classified the LCD 
monitor in item 1 in Commission Regulation No. 2171/2005 in duty-free subheading heading 8471 60 
based on its ability to reproduce video signals from a source other than an automatic data-processing 
machine.  Thus, it argues, it does not necessarily limit the scope of the concession to products that can 
only be used with an automatic data-processing machine.948  In addition, the European Communities 
argues that the presence of a DVI connector is "not  necessarily dispositive" as to whether a monitor is 
not an output unit of a computer  It refers to  item 4 in Commission Regulation No. 634/2005 and 
                                                      
941 Japan's first written submission, para. 337. 
942 Chinese Taipei's first written submission, para. 335 (defining "principally" as "1. in the chief case; 
above all; pre-eminently. 3 For the most part; in most cases". 
943 European Communities' first written submission, para. 97; European Communities' second written 
submission, para. 33.  The European Communities takes issue in particular with Japan's statement that its claim 
related to the FPDs narrative description covers those products "for" automatic data-processing machines or 
other ITA products ("i.e., only those capable of operating with a computer or other ITA product"), whereas it considers its claim in connection with CN code 8471 60 90 covers products that have digital connectivity 
(European Communities' second written submission, para. 205). 
944 European Communities second written submission, para s. 33-36.  In response to a question from the 
Panel, the European Communities argues that the United St ates clarified that a television would not be covered 
under subheading 8471 60 even it if could connect to a computer.  However, the European Communities argues 
that the United States has not clarified whether a television would be covered under the FPDs narrative concession, and it argues that neither Chinese Taipei nor Japan clarified whether televisions were covered under 
either of the concessions (European Commun ities' second written submission, para. 37). 
945 European Communities' second written submission, para. 29.  The European Communities argues 
that the "monitors" concession in the Annex to its Schedule categorically excludes televisions, including high 
definition televisions, as well as video monitors and high definition video monitors capable of receiving and 
processing television signals other analogue or digitally processed audio or video signals without the assistance of a central processing unit of a computer (European  Communities' second written submission, para. 30). 
946 European Communities' first written submission, paras. 69-70. 
947 European Communities' first written submission, para. 166, citing European Court of Justice 
(Kamino) (Exhibit TPKM-52). 
948 European Communities' first written submission, para. 68. WT/DS375/R 
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  items 3 and 4 in Commission Regul ation No. 2171/2005, in which it argues that the presence of a DVI 
connector is listed among other technical characteristics.
949   
7.716  Moreover, the European Communities argues that, to the extent any displays were improperly 
excluded from duty-free coverage as displays solely  or principally for use with automatic data-
processing machines, the duty suspen sion in place has reduced the like lihood that duties have been 
"unduly levied".950  Furthermore, the European Communiti es argues that, in cases where duties might 
have been levied, many products are of the kind that would prima facie  be classifiable as "video 
monitors" under subheadings 8528 21 and 8528 22, or, in some  cases, "reception apparatus for 
television..." under heading 8528 12 and 8528 13.  As explained above, the European Communities 
argues that a new product, which it terms "mu ltifunctional LCD monitors" emerged following the 
conclusion of the ITA, that incorporated elem ents such as LCD technology and DVI and merged 
products in way that "cuts between the commitment s taken and those explicitly not taken pursuant to 
the ITA".951  It thus disputes that either LCD or DVI we re contemplated as falling within the coverage 
of ITA products, as LCD televisions and monitors di d not exists as a viable commercial reality and 
DVI was not available at that time.  It argues these  "new" products are not to be confused with those 
that were present in 1996, and are excluded from duty-free coverage.952  In cases where products may 
be classifiable in more than one heading, it cons iders that GIR 3(c) would apply and those display 
monitors would be justifiably subject to duties as televisions or as video monitors.953   
7.717  The European Communities argues that the fact th at the DVI originated on the computer side 
of the industry proves nothing in light of the convergence of the IT and multimedia consumer 
electronics industries.  It considers that the very purpose of DVI is to display video signals as evidenced by the fact that DVI is Video El ectronics Standards Association (VESA) certified.
954  
Moreover, because many modern televisions have  a DVI connector, the European Communities 
argues that its mere existence in a monitor cannot establish that the display is an "ADP monitor".955  
In this sense, it argues that the presence of a DVI connector indicates the presence of certain 
electronic components inside the monitor that al lows the LCD monitor to function with many 
different devices that are not covered by the ITA.956  Even if the DVI standard was developed first by 
the computer industry for computer purposes, because of its ability to be used with both analogue and 
                                                      
949 European Communities' response to Panel question 23. 
950 European Communities' first written submission, paras. 167-169. The European Communities 
acknowledges that it has previously "p aid specific attention to whether or not a monitor is 'capable of accepting 
a signal only from the central processi ng unit of an automatic data-proce ssing machine" in accordance with its 
interpretation of the HSEN1996 to heading 8471. 
951 European Communities' first written submission, para. 74.  The European Communities claims that 
LCD technology was not commercialized at the time of negotiations.  It fu rther asserts that the DVI connector 
did not exist at the time the concessions were negotiated, but only two to three years later (European 
Communities' first written submission, paras. 87-88).  For these reasons, the European Communities concludes 
that, a fortiori , multifunctional monitors could not have existed at the time of negotiations to be considered 
within the concessions (European Communitie s' first written subm ission, para. 90). 
952 European Communities' first written submission, paras. 71-76, 87, 90. 
953 European Communities' first written submission, para. 169.  The European Communities refers in 
particular to the "Apple Cinema" monitors in arguin g that the application of GIR 3(c) is justified. 
954 European Communities' first written submission, para. 65. 
955 European Communities' first written submission, para. 65. 
956 European Communities' response to Panel question No. 50.  WT/DS375/R 
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  digital signals, the European Communities explains that it was adopted by the consumer electronics 
sector for products such as set-top boxes, DVD players and game consoles.
 957   
7.718  The European Communities also challenges the argument by the United States that certain 
display products with DVI connectors – the Apple Ci nema Display – are solely capable of connecting 
with a computer, and that European Communities w ould thus classify products solely used with 
computers in a dutiable heading.958  The European Communities claims that this particular product 
can operate without the assistance of a computer.959 
7.719  Finally, the European Communities argues that because DVI is "display technology 
independent" means that it was foreseen to functi on with displays using CRT or LCD or other 
technologies", and thus is not considered as a standard computer connector.960   
7.720  The complainants respond that the Europ ean Communities' reliance on the HSEN is 
misplaced, as the HSEN are not relevant to extent  they contradict the meaning of the HS itself, 
including its Chapter Notes.961 In addition, the complainants argue  that GIR 3(c) is inapplicable.962   
7.721  The United States additionally rejects that the presence of a DVI connector or the ability to 
connect to sources other than automatic data-p rocessing machines has not been dispositive. The 
United States submits that the statement by th e European Communities th at the presence of a DVI 
connector has not been "necessarily dispositive" fails  to clarify whether the presence of DVI was in 
fact dispositive. Contrary to the European Commun ities' reference to items in Commission Regulation 
Nos. 634/2005 and 2171/2005, the United States notes th at all the items were classified in a dutiable 
heading.963  It argues that the mere fact that devices ar e described as having characteristics in addition 
                                                      
957 European Communities' second oral statement, para. 22 (referring to Exhibit EC-110).  The EC 
argues that many consumer products,  notably DVD players include DVI. 
958 According to the European Communities, the Apple Cinema Display can also connect to an ADP 
machine (see European Communities' comments to the United States' response to Panel question No. 143). In 
this respect, the European Communities argues that "page 22 of Exhibit US-78 addresses the question what kind 
of a computer is required if the monitor is to be used as  a unit of an ADP system. Of course, in such a situation 
an ADP machine will be necessary"); See also: European Communities' first written submission, para. 169, fn. 
90; European Communities' second oral statement, para. 23.  In addition to asserting that the product manual for 
this device makes clear that it can connect to sources other than computers (see Exhibit US-78, citing p. 6, 
second paragraph, last sentence or p.  7, fourth paragraph, last sentence, p. 23), the European Communities 
argues that the device can at a minimum be connected to  other sources with the use of as SDI-DVI converters 
specifically designed to drive Apple Cinema Displays or  similar monitors without the assistance of an ADP 
machine (Exhibit EC-116). 
959 European Communities' response to Panel question No. 143 (stating, with reference to the manual in 
Exhibit US-78, that the Apple Cinema Display can inde ed operate without the assi stance of a computer/ADP 
machine). 
960 European Communities' response to Panel question No.50, para. 164. 
961 United States' comment on the European Communities' response to Panel questions Nos. 138 and 
139; Chinese Taipei's second  oral statement, para. 18. 
962 United States' and Japan's response to Panel qu estion No. 20, para. 52; Japan's second written 
submission, para. 194; Chinese Taipei's first written su bmission, para. 340; Chinese Taipei's second written 
submission, paras. 182 and 186. 
963 United States' second written submission, para. 70.  The United States argues in addition that item 2 
in Commission Regulation No. 2171/2005 was classified strictly on the basis of the presence of DVI, and item 1 
in Commission Regulation No. 2171/2005  is not relevant because the device is indicated as not having a DVI 
connector (but instead a "mini D- sub 15 pin interface only") The United States argues that item 1 of 
Commission Regulation No. 634/2005 only has a VGA connector, and not a DVI connector, which does not 
demonstrate how a device capable of connecting to sources other than a computer might be entered duty-free WT/DS375/R 
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  to DVI in certain items of the Regulations does not support the conclusion that DVI was merely a 
"strong indicator" that the product was dutiable.   
7.722  Japan also considers that th e mere presence of a DVI connector is dispositive for tariff 
treatment.  It understands, however, that the mere pr esence of a DVI connector in a flat panel display 
monitor does not by itself necessarily  mean the flat panel display device will be capable of operating 
with a computer.  Whether an flat panel display de vice can be used with an automatic data-processing 
machine, depends on all relevant technological sp ecifications, including interfaces on the flat panel 
display device, to determine whether the flat panel display device is in fact capable of operating with 
a computer and/or some other ITA products.
964 
7.723  In addition, the United States and Chinese Taip ei argue that the European Communities has 
not provided evidence to demonstrate that a device with DVI connector or capable of receiving and 
reproducing signals from a source other than a computer  could be classified in a duty-free subheading.  
On the contrary, the United States submits that the evidence shows that custom s officials in certain 
cases have not referred to any characteristic excep t the presence of DVI connector as the basis for 
classification in a dutiable subheading.965  Moreover, it argues that CNEN 2008/C 133/01 
demonstrates clearly that the presence of DVI is not me rely a strong indicator but is in fact decisive of 
classification in a dutiable heading.966   
7.724  The complainants submit that, in determini ng whether devices equipped with DVI technology 
are covered, it is not relevant whether the DVI connector was developed after the ITA concluded.967  
In addition, the United States argues that it is fact ually not relevant whether different DVI standards 
exist, including DVI-I and DVI-D, or whether DVI was adopted and used in the consumer media 
industry.  It notes that DVI-I and DVI-D differ onl y in that the former accepts both digital and 
analogue signals while the later accepts only digital signals.968  In addition, it argues that an adoption 
by consumer media industry does not support the use of a per se  exclusion of products with DVI.  
Moreover, the United States claims that virtually no consumer electronics devices are today equipped 
with DVI while computers are.969 
7.725  The United States argues that the fact that the DVI was not designed for a particular display 
technology supports the view that this connector w as in fact designed for co mputers, in particular 
considering that the ITA expressly refers to a number  of technologies used with flat panel displays, 
including LCD.970 
                                                                                                                                                                     
simply does not demonstrate how devices capable of connecting to sources other than an automatic data-
processing machine are sometimes granted duty-free treatme nt (United States' second written submission, paras. 
70-71). 
964 Japan's response to Panel question No. 48. 
965 United States' second written submission, para. 71 (referring to Exhibit US-50). 
966 United States' second written submission, para. 72; Chinese Taipei's second oral statement, para. 40. 
967 United States' second written submission, para. 87; Japan's second written submission, para. 155; 
Chinese Taipei's second written submissi on, para. 125.  Japan submits eviden ce in addition that the flat panel 
displays were used as display computer terminals at th e time of ITA negotiations (Japan's first oral statement, 
para. 47, referring to Exhibit JPN-25). 
968 United States' second written submission, para. 92 (referring to "How Computer Monitors Work", 
pp. 8-10 (Exhibit US-34)). 
969 United States' second written submi ssion, para. 92.  The United States argues that only 11 of 1500 
DVD players it assessed have DVI, while no camcorders incorporate this standard (Exhibit US-129). 
970 United States' first written submission, para. 53.  WT/DS375/R 
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  7.726  Finally, the United States disputes the Europ ean Communities' view that the Apple Cinema 
Display, as it is imported without the use of external  converters, is capable of operating with devices 
other than computers, such that it woul d justify subjecting the device to duties.
971   
(ii) Consideration by the Panel 
7.727  The Panel  will consider below whether the products id entified by the complainants fall within 
the scope of the FPDs narrative description, or are "input or output units; - other" within the meaning 
of tariff item number 8471 60 90 in the EC Schedule. 
The concession pursuant to the FPDs narrative d escription in the Annex to the EC Schedule  
7.728  We recall our conclusion above that the concession refers to certain apparatus or devices that 
have a flat display and are generally thinner than  conventional CRT displays or monitors, and are 
designed for visual presentation of data or signals from products falling with in the ITA, including 
notably, automatic data-processing machines.  We de termined that there is no express limitation on 
technical characteristics, such as screen size, dimension, refresh rate, dot-pixel ratio, or other technical 
characteristics, including no express limitation on the type of connection or sockets it may possess, 
such as DVI.  We further concluded there that ther e is no requirement for exclusivity, such that the 
FPDs concession would be limited to apparatus th at may only display or reproduce signals from 
products falling within the ITA, including automati c data-processing machines.  We also concluded 
that the concession applies to products that fall within its scope, wherever those products are 
classified. 
7.729  We also recall that the products at issue in this  dispute are: (i) flat panel display devices that 
are capable of connecting to an  automatic data-processing machine and are also capable of 
reproducing video images from a source other than an  automatic data-processing machine, and (ii) flat 
panel display devices that are capable of conn ecting to an automatic data-processing machine and 
have a DVI connector, whether or not they are cap able of receiving signals from another source.   
7.730  Based on our conclusions on the scope of the FPD s narrative description above, we conclude 
that the products at issue, including flat panel di splay devices with DVI, and flat panel display devices 
able to accept and receive signals from automatic  data-processing machines and sources other than 
automatic data-processing machines, may fall within the scope of the concession, provided that they 
are designed for use with an automatic data-processing machine.  We determined that an array of non-
CRT technologies, including LCD, fall within th e concession.  In addition, the FPDs narrative 
description does not establish particular limitations on the type of connector or socket that a display 
might incorporate, nor does the concession establish any exclusivity requirement such that a product 
may only connect with a computer in order to be eligible for duty-free treatment.  The fact that a 
device may be able to receive and display signals  from other sources would not therefore exclude it 
from coverage under the concession.  In addition,  the Panel can see no reason why a product that 
otherwise falls within the scope of the concession, would be excluded simply because it is fitted with 
certain connectors, such as DVI or HDMI.  
7.731  Having said this, we reiterate, it is conceivabl e that certain products that have a DVI or 
similar connector or that are able to displa y and receive signals from ADP and non-ADP sources 
would not qualify under the concession to the extent they did not provide an acceptable level of 
                                                      
971 United States' comment on European Communities' response to Panel question No. 143; para 61 
(referring to Exhibit EC-116). See also Japan's and Ch inese Taipei's responses to  the European Communities' 
second question after the second Panel meeting. WT/DS375/R 
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  functionality or opera bility, or otherwise not meet the requirements set out in the concession.  The 
mere capability to receive signals from computers is not enough to qualify under the concession.
972  
For example, the resolution of certain products ma y not be high enough to properly display signals 
from a computer. 
7.732  Thus, we conclude that at least some flat pane l display devices at issue in this dispute could 
fall within the scope of the concession for "flat panel display devices (including LCD, Electro 
Luminescence, Plasma, Vacuum-Fluorescence and other technologies) for products falling within this 
agreement" that appears in the Annex to the EC Schedule.   
The concession pursuant to tariff item number 8471 60 90 in the EC Schedule  
7.733  We next consider whether the products at i ssue in this dispute fall within the separate 
concession pursuant to tariff item number 8471 60 90 in the EC Schedule.  We recall our conclusion 
that an "input or output unit" within the meani ng of tariff item number 8471 60 90 is a device that 
forms part of an "automatic data-processing machine" , is "of a kind solely or principally used by an 
automatic data-processing system", and that perform s at least one specified function that involves 
accepting or delivering data in a form (codes or sign als) that can be used by the automatic data-
processing machine or "automatic data-processing m achine system".  More specifically, tariff item 
number 8471 60 90 of the EC Schedule covers all "input or output units" of an automatic data-
processing machine that are not "for use in civil aircraft" (8471 60 10), "printers" (8471 60 40) or "keyboards" (8471 60 50).  We also explained that not all devices capable of connecting to an ADP 
machine or ADP system by accepting or delivering data from or to an ADP necessarily  qualify as an 
input or output unit of heading 8471.   
7.734  We are not persuaded that flat panel displays  which incorporate a DVI or similar connector, 
or which can receive and display signals from au tomatic data processing machines and other sources, 
necessarily fall outside the scope of 8471 60 90 as defi ned above.  There is no reason to automatically 
preclude the flat panel display devices at issue from be ing "input or output units".  In particular, it is 
clear that the scope of 8471 60 and 8471 60 90, is not limited to those output units that are used exclusively with an ADP. We are, however, not sayi ng that all of the flat panel display devices at 
issue will necessarily fall within the scope of this concession.  That would have to be determined on a 
case-by-case basis, taking into account all the objective characteristics of a particular product.  
7.735  We note that the European Communities has argue d that the products at issue are prima facie 
classifiable under other, dutiable, headings and th at by virtue of the application of the HS 
interpretative rules, and GIR3(c) in particular, th e products at issue could fall within these dutiable 
headings.  As we have noted,
973 in the circumstances of this case we are only required to determine 
whether some  of the products at issue fall within the scope of the duty free heading 8471 60.  We do 
not preclude the possibility that some of the products  at issue, depending on their particular objective 
characteristics, may fall within the scope of other head ings or subheadings, by virtue of the effect of 
the HS interpretative rules consider ed as context. The key finding, in terms of the effect of the 
measures at issue in this case, is th at it is not possible to assume that all such products would fall 
within the scope of these dutiable headings.974 
                                                      
972 Japan's second oral statement, para. 70. 
973 See para. 7.668 above. 
974 The Panel notes that the European Communities has relied on the judgment of the European Court 
of Justice in Kamino  to support its contention that its measures ar e WTO consistent.  We recall that the facts of 
the case in Kamino  are not the same as those before us and that while the case dealt with the same relevant HS  WT/DS375/R 
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  (d) Do the measures at issue provide for duties on products identified by the complainants which 
are in excess of those set forth in the EC Schedule? 
7.736  We recall our reasoning in para graphs 7.97-7.102 above that Article II:1(b) requires that 
Members not apply ordinary customs duties in excess of those provided for in the Schedule. 
Therefore, in this section we will compare the tari ff treatment provided to the products identified by 
the complainants under the challenged measures with that provided for in either the FPDs narrative 
description or tariff item number 8471 60 90 in the EC  Schedule. Having done this, we can determine 
whether the challenged measures impose duties in excess  of those set forth in the EC Schedule, such 
that the European Communities is in breach of  its obligations under Article II:1(b) of the 
GATT 1994.
975 
7.737  The complainants argue that, through the measu res at issue, including Council Regulation 
No. 2658/87, as amended, CNEN 2008/C 133/01 and Commission Regulation Nos. 634/2005 and 
2171/2005, the European Communities does not provide dut y-free treatment to flat panel displays that 
are entitled to such treatment. They additionally identi fied the application of a suspension of duties on 
products that are classified under CN codes 8528 59 10 and 8528 59 90 covering certain black and white or other monochrome monitors, and certain co lour monitors, respectively, each subject to a 
14 per cent duty rate. 
7.738  We recall from paragraph 7.232 above that th e current CN extends duty-free treatment under 
CN code 8528 51 00 to certain "monitors...of a kind sole ly or principally used in an automatic data-
processing system of heading 8471" and for dutia ble CN codes 8528 59 10 and 8528 59 90 covering 
certain black and white or other monochrome monito rs, and certain colour monitors, respectively, 
each subject to a 14 per cent duty rate. In para graph 7.258 above, we conc luded that CNEN 2008/C 
133/01 requires that LCD and other flat panel displa y devices that are fitted with a DVI connector, or 
that are capable of receiving and reproducing vi deo images both from an automatic data-processing 
machine and from a source other than an automati c data-processing machine, are required to be 
classified under dutiable CN codes 8528 59 10 or 8528 59 90, each of which sets a duty rate of 14 per cent. Thus, CNEN 2008/C 133/01 requires that flat panel display devices that are capable of connecting with sources other than automatic data-p rocessing machine, or those that are fitted with 
connectors such as DVI-I, DVI-D or HDMI, be ex cluded from classification under duty-free CN code 
8528 51 00.   
7.739  In addition, in paragraph 7.284 above, we concluded that Commission Regulation 
No. 634/2005 requires that LCD monitors as described in item 4 of its Annex be classified under CN 
                                                                                                                                                                    
 
Chapter Note it did not deal with the same HS subheading, the same measures, or the same products.  We also 
note that the European Court of Justice is the domestic court of 27 out of 153 Members of the WTO and that in 
the Kamino  decision the European Court of Justice was applying the rules of European Community law to gauge 
the consistency of the EC regulation at issue in that case with that legal regime rather than applying the general 
rules of interpretation of public international law to determine the consistency of a measure with WTO 
obligations. Moreover, the Panel notes that our findings here are similar to the vi ew taken by the European 
Court of Justice in Kamino .  See European Court of Justice (Kamino), para. 71. 
975 As noted in paragraph 7.102, prior panels have reasoned that a measure which is inconsistent with 
the obligation in Article II:1(b) to provide duty treatment not in excess of that set forth in a Member's schedule 
necessarily implies an inconsistency with the obligati on in Article II:1(a) not to provide less favourable 
treatment to imported products than that set forth in a Me mber's schedule.  Therefore,  we will begin our analysis 
of whether the tariff treatment provided for in the European Communities' measures is consistent with Article II 
of the GATT 1994 with an analysis of the obligation in Article II:1(b).  Subsequently, we will move on to 
address the complainants' claim that the European Communities is also acting inconsistently with the obligation 
in Article II:1(a). WT/DS375/R 
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  code 8528 21 90.  Similarly, Commission Regula tion No. 2171/2005 requires that LCD monitors as 
described in items 2, 3 and 4 of its Annex be cl assified under CN code 85 28 21 90, which sets a duty 
rate of 14 per cent.  CN code 8528 21 90 has been  replaced by CN code 8528 59 90 under the current 
CN. 
7.740  Finally, we concluded in paragraph 7.294  above that Council Regulation No. 179/2009 
suspends the application of duties on the following di splays that would otherwise be classifiable under 
dutiable headings 8528 59 10 and 8528 59 90, respectiv ely, each of which sets a duty rate of 14 per 
cent: 
 "black and white or other monochrome monitors, using liquid crystal display 
technology, equipped with either digital vi sual interface (DVI) or a video graphics 
array (VGA) connector or both with a diagonal measurement of the screen not 
exceeding 77,50 cm (i.e. 30,5 inches), with an  aspect ratio of 1:1, 4:3, 5:4 or 16:10, 
with a pixel resolution exceeding 1,92 me ga pixels, and with a dot pitch not 
exceeding 0,3 mm".   
"colour monitors, using liquid crystal display technology, with a diagonal 
measurement of the screen not exceeding 55,9 cm (i.e. 22 inches), with an aspect ratio of 1:1, 4:3, 5:4 or 16:10". 
7.741  In the Annex to its Schedule, the European Co mmunities agreed to bind and eliminate duties 
on flat panel display devices that fall within the sco pe of the FPDs narrative description.  In addition, 
we also recall our conclusion that at least some of the flat panel display devices at issue fall within the 
scope of tariff item number 8471 60 of the EC schedul e (under 8471 60 90, in particular), which is a 
duty-free concession.   
7.742  Therefore, CNEN 2008/C 133/01, by directing na tional customs authorities to classify those 
flat panel display devices in CN codes 8528 59 10 or 8528 59 90, under which the CN imposes duties 
of 14 per cent, requires the imposition of duties on at least some products which fall within the scope 
of the FPDs narrative description and/or within the scope of the CN code 8471 60 90 in the EC 
Schedule.  The CNEN and CN operating together ther efore result in the levying of duties in excess of 
those provided for in the European Communities' Sche dule, and are therefore inconsistent with Article 
II:1(b) of the GATT 1994.   
7.743  Similarly, Commission Regulation Nos. 634/200 5 and 2171/2005 direct national customs 
authorities to classify all products matching the te rms of the description in their annexes under a CN 
code which imposes a 14 per cent duty, because those products are capable of receiving and 
reproducing video signals from sources other than an automatic data-process ing machine.  They 
therefore result in the imposition of duties on at least  some products which fall within the scope of the 
FPDs narrative description and/or within the scope  of the tariff item number 8471 60 90 in the EC 
Schedule. Commission Regulation Nos. 634/2005 a nd 2171/2005 therefore result in the levying of 
duties in excess of those provided for in the Eu ropean Communities' Schedule, and are therefore 
inconsistent with Article II:1(b) of the GATT 1994.     
7.744  It must be borne in mind that Council Regulati on No. 179/2009 that is currently in effect, 
suspends the application of duties on certain disp lays as described in paragraph 7.740 above, that 
would otherwise be classifiable under dutiable headi ngs 8528 59 10 and 8528 59 90, and subject to a 
14 per cent duty.  To the extent that Council Re gulation No. 179/2009 suspends duties levied on 
products that the European Communities is obliged to provide duty-free treatment for under either of 
the concessions, (including LCD monitors with a DVI, or those that are capable of receiving and  WT/DS375/R 
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  reproducing video signals from sources other than an automatic data-process ing machine), neither 
CNEN 2008/C 133/01 working in conjunction with the CN, nor Commission Regulation Nos. 634/2005 and 2171/2005 act ually imposes duties in excess of those set forth in the EC Schedule. 
Accordingly, the duty suspension eliminates the inconsistency with the European Communities' 
obligations under Article II:1(b).  In other words,  but for the duty suspension, the measures at issue 
are inconsistent with Article II:1(b) of the GATT 1994. 
7.745  However, to the extent the duty suspension were  not applicable to a particular product that 
fell within the scope of either concession, i.e., a product covered by either concession fell outside the 
scope of the express terms of the duty suspension, or if the suspension measure were to be repealed or 
annulled, then, as discussed above, CNEN 2008/C 133/0 1 working in conjunction with the CN, or 
Commission Regulation Nos. 634/2005 and 2171/2005, would result in the levying of duties in excess 
of those provided for in the European Commun ities' Schedule in a manner inconsistent with 
Article II:1(b) of the GATT 1994.   
7.746  Notwithstanding, our conclusions in this section,  we next consider whether the measures at 
issue otherwise lead the European Communities, by  directing national customs authorities, to accord 
to the commerce of the other contracting parties treatm ent less favourable than that provided for in its 
Schedule. 
(e) Do the measures at issue provide less favourable  treatment than that set forth in the EC 
Schedule? 
7.747  With respect to whether the European Comm unities' measures provide for less favourable 
treatment than that set forth in the EC Schedule, we recall the explanation of the Appellate Body in 
Argentina – Textiles and Apparel , that Article II:1(b) prohibits a specific kind of practice that will 
always be inconsistent with Article II:1(a).  In  particular, the Appellate Body found that "the 
application of customs duties in excess of those pr ovided for in a Member's Schedule inconsistent 
with the first sentence of Article II:1(b), constitut es 'less favourable' treatment under the provisions of 
Article II:1(a)."
976  Therefore, as prior panels have before us , we find that a violation of Article II:1(b) 
necessarily results in less favourable treatment which is inconsistent with the obligations in Article 
II:1(a).977    
7.748  In addition, we indicated above that Council Regulation No. 179/2009 currently suspends the 
application of duties on products that fall within  its scope, in particular those described in 
paragraph 7.740. 
7.749  In light of our analysis of the scope of concessions arising under the FPDs narrative 
description, we concluded that the products at is sue could fall within the scope of that duty-free 
concession.  In addition, we indicated that certain of the flat panel display devices at issue qualify for 
duty-free treatment under CN 8471 60 90 in the EC Schedule.978 
                                                      
976 Appellate Body Report on Argentina – Textiles and Apparel , paras. 45-47. 
977 Panel Report on EC – Chicken Cuts , para. 7.65. 
978 In particular, we recall, the concession under the FPDs narrative description refers to certain 
apparatus that have a flat display and generally thinner than conventional CRT displays or monitors, and is designed for visual presentation of data or signals from products that fall within the ITA, including automatic 
data-processing machines.  We determined that there is no limitation on technical characteristics, such screen  
assize, dimension, refresh rate, dot-pixel ratio, or other technical characteristics, incl uding no express limitation 
on the type of connection or sockets it may possess, such as DVI.  We further concluded there is no requirement 
for exclusivity, such that the FPDs concession would be limited to apparatus that may only display or reproduce WT/DS375/R 
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  7.750  We also found that Council Regulation No. 2658/87, as amended, operating in conjunction 
with CNEN 2008/C 133/01; and Commission Regulation Nos. 634/2005 and 2171/2005 are inconsistent with Article II:1(b) of the GATT 1994, to  the extent they levy duties in excess of those 
set forth in the EC Schedule.  However, Counc il Regulation No. 179/2009 suspends those duties for 
some products, and hence there is  no inconsistency with Article II:1(b) to the extent the duty 
suspension is applied to a product covered by either concession.  It follows, therefore, that there is no 
inconsistency with Article II:1(a) by virtue of an inconsistency with Article II:1(b).   
7.751  In cases where the suspension of duties were not applied, then, in accordance with the 
approach of the Appellate Body in Argentina – Textiles and Apparel , the levying of duties would be 
inconsistent with Article  II:1(a) of the GATT 1994. 
7.752  However, we now consider whether the measu res at issue would also provide for less 
favourable treatment in a manner inconsistent with  Article II:1(a) of the GATT 1994, even in cases 
where the duty suspension under Council Regulation No. 179/2009 is applied. 
(i) Arguments of the parties 
7.753  The complainants  argue that the application of the suspension results in less favourable 
treatment because it is both temporary, applying fo r defined and limited time periods, and conditional, 
because it may be terminated unilaterally if condi tions for its continuation are no longer fulfilled.
979  
In particular, the United States  argues that the failure to prov ide permanent duty-free treatment 
adversely affects imports because importers do not have certainty regarding duty treatment.980  The 
United States notes that the panel in EC – Selected Customs Matters stated that "the fact that traders 
may be subject to the same duty (or, for that ma tter, no duty) whether the LCD monitors they are 
importing in the European Communities are classi fied under heading 8471 or 8528 does not detract 
from our conclusion that the trading environment has b een affected as a result of the divergent tariff 
classification".981 Further, according to the United States, "lasting" duty-free treatment can only be 
provided through amendments to the autonomous duty rate in the CCT.982  In this respect, the United 
States refers to the words of the Commission, that  duty suspensions "constitu te an exception to the 
normal state of affairs" and are "reviewed regularly  with the possibility of deletion on request of a 
party concerned".983  In addition, Chinese Taipei  argues that various types of flat panel displays fall 
outside the scope of the duty suspension and ar e therefore subject to duties inappropriately.984   
                                                                                                                                                                     
signals from products falling within the ITA, including automatic data-processing machines.  The concession 
under CN code 8471 60 90 in the EC Schedule refers to a device that forms part of an "automatic data-processing machine" or are "of a kind solely or principally used by an automatic data-processing system", and 
that perform at least one specified function that involves accepting or de livering data in a form (codes or 
signals) that can be used by the automatic data-processing machine or "automatic data-processing machine system". 
979 United States' first written submission, para. 142 ; Japan's second written submission, para. 141; 
Chinese Taipei's first written submission, para. 124; Chinese Taipei's first written submission, para. 354-355.   
980 United States' first written submission, para. 143.   
981 United States' first written submission, para. 143, referring to Panel Report on 
EC - Selected Customs Matters , para. 7.304, fn. 579. 
982 United States' second written submission, para. 77, citing Exhibit US-85. 
983 United States' first written submission, pa ra. 142, referring to Commission communication 
concerning autonomous tariff suspensions and quotas, OJ C 128 (April 25, 1998),  p. 2 (Exhibit US-85). 
984 Chinese Taipei's first written submission, para . 184; Chinese Taipei's first written submission, 
para. 354-355.  WT/DS375/R 
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  7.754  The European Communities  argues that the duty suspensi on, which has recently been 
prolonged and extended to cover additional monitors, results in monitors receiving duty-free 
treatment, for those that might have been erroneously  classified in a dutiable heading.  The European 
Communities claims therefore that no breach of Article II would occur.
985 
(ii) Consideration by the Panel 
7.755  The notion of less favourable tr eatment has been exam ined in the context of other provisions 
of the GATT, notably in Article III:4 of the GATT 1994. 
7.756  The Appellate Body in Korea – Various Measures on Beef  stated that whether or not imported 
products are treated "less favourably" should be asse ssed by examining whether a measure modifies 
the conditions of competition in the relevant market to the detriment of imported products.986 
7.757  While Article III:4 focuses on less favourable treatment between domestic and imported like 
products and Article II focuses on less favourable treatment, vis-à-vis what is in a Schedule, we find the emphasis on competitive opportunities relevant fo r our analysis, particularly as negotiated tariff 
concessions and the certainty thereof are important market access guarantees. Therefore, if a measure 
adversely affects the conditions of competition fo r a product from that which it is entitled to enjoy 
under a Schedule, this would be less fa vourable treatment under Article II:1(a). 
7.758  We have found in paragraph 7.744 that, but for the duty suspension, the European 
Communities' measures are inconsistent with its oblig ations under Article II:1(b).  It follows, in light 
of the Appellate Body decision in Argentina – Textiles and Apparel referred to in paragraph 7.99 
above, that the European Commun ities' measures are also inconsis tent with Article II:1(a). The 
question arises whether the duty suspension eliminates the inconsistency with respect to Article II:1(a) 
in the same way as it did with re spect to Article II:1(b). The curre nt suspension regime of Council 
Regulation No. 179/2009 has been in place since 1 Janua ry 2009, but was applicable retroactively for 
the period January-March 2009. It will automa tically expire on 31 December 2010. The duty 
suspension is limited to the par ticular products specified therein.
987  Council Regulation No. 179/2009 
is the third in a succession of measures that ha ve applied a suspension of duties on imports of 
particular LCD displays. The first of these  measures, Council Regulation No. 493/2005, was 
published 31 March 2005 with effect from 1 Ja nuary 2005 through 31 December 2006. Second, 
Council Regulation No. 301/2007 was published in 19 March 2007 with effect from the 1 January of 
that year. This latter regulation extended the id entical terms of the prior suspension under Council 
Regulation No. 493/2005 to 31 December 2008.  Mo st recently, Council Regulation No. 179/2009 
was published in March 2009 with retroactive effect to  1 January of 2009.  This measure is currently 
in force and forms part of the Panel's terms of reference.988  This measure enlarged the scope of 
application of the duty suspensions that were  previously applied to certain LCD imports. 
7.759  These earlier applications of the duty suspen sion reveal that the duty suspension regime 
currently in place has been renewed biannually, is set to expire automatically and is not extended 
automatically. The duty suspension has only been ex tended or amended, subject to formal actions 
taken by the EC Council, i.e., following the passage of a new Council Regulation. It appears that these 
measures do not take effect prior to their publication in the EU Official Journal. The suspension under 
                                                      
985 European Communities' first written submission, paras. 62-63. 
986 Appellate Body Report on Korea –Various Measures on Beef , para. 137. 
987 See para. 7.740 above. 
988 See paras. 7.170-7.190 above. WT/DS375/R 
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  all three measures was applied retroactively for periods between January and March in 2005, 2007 
and 2009, respectively. 
7.760  Thus, while a suspension on imports of certain LC D displays has formally been in effect for 
five years or more, the suspension is not permanent in  nature, and is subject to a formal extension or 
amendment. In addition, we note that the measure at issue (as well as prior measures) implementing 
the autonomous duty suspension does not set out specific conditions for its withdrawal or non-renewal. Thus the duty suspension in force at a particular time may expire, be repealed, or be 
amended to increase or decrease coverage. 
7.761  We recognize that no amount of autonomous duty -free coverage can be assured in an absolute 
sense. The European Communities, for instance, sets forth its tariff bindings in the EC Schedule 
pursuant to annual amendments to the autonomous dut y rate in the CCT, published in October of each 
year prior to its entry into force the following January.    Notwithstanding this fact, tariff bindings set 
forth in the CCT autonomous duty regime remain in place until formal repeal by the Commission.  
Thus, tariff treatment under the CCT is not contin gent on renewal or extension, unlike under the 
current duty suspension regime. In our view, this dis tinction is significant, in particular, in the sense 
that continuous tariff treatment provides forseeab ility for traders operating in the marketplace.  
Moreover, the tariff treatment established under the CCT is prospective, unlike under the duty 
suspension regime, where the application of the suspension has been applied retroactively on a 
number of occasions.
989  For the foregoing reasons, we are of  the view that the duty suspension 
measure does not eliminate the inconsistency with Article II:1(a) because there remains the potential 
of deleterious effects on competition. 
7.762  We note finally that the Appellate Body has explained that the examination of whether a 
measure involves "less favourable treatment" within  the meaning of Article III:4 of the GATT 1994 
does not require an examination of the actual effect s of the contested measure in the marketplace, in 
order to demonstrate inconsistency.990  In our view, the same holds tr ue for purposes of our analysis in 
this case with respect to Article II:1(a). 
7.763  Accordingly, the measures at issue, including  Council Regulation No. 179/2009 operating in 
conjunction with the CN and CNEN 2008/C 133/01, and with Commission Regulation Nos. 634/2005 
and 2171/2005, are inconsistent with the European Communities' obligations u nder Article II:1(a) of 
the GATT 1994.  This is true even in cases wher e Council Regulation No. 179/2009 suspends duties 
on products that the European Communities is obligat ed to provide duty-free treatment for, including 
LCD monitors with a DVI interface, or that are capable of receiving and reproducing video signals 
from sources other than an auto matic data-processing machine. 
F. SET-TOP BOXES WHICH HAVE A COMMUNICATION FUNCTION (STBC S) 
7.764  In this section of the Reports, the Panel will consider the complainants ' claims that certain 
EC measures are inconsistent with Articles II:1( a) and II:1(b) of the GATT 1994 because they result 
in less favourable tariff treatment to imports of certain set top boxes which have a communication 
                                                      
989 We find further support for this view in the statement of the Commission, provided by the United 
States, that duty suspensions "constitute an exception to th e normal state of affairs" and are "reviewed regularly 
with the possibility of deletion on request of a part y concerned" (United States first written submission, 
para. 142, referring to Commission communication concerning autonomous tariff suspensions and quotas, OJ C 
128 (April 25, 1998), p. 2 (Exhibit US-85)). While this statement was not made in the circumstances of this 
case, it is at least, illustrative of the conditional nature of the measure. The European Communities has not rebutted this statement. 
990 Appellate Body Report on US – FSC (Article 21.5 – EC) , paras. 215 and 221 (footnote omitted).  WT/DS375/R 
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  function (STBCs) than that provided for these produc ts under the EC Schedule, and because the tariff 
treatment afforded is in excess of that afforded for them in the EC  Schedule.  In the joint Panel 
request, the complainants indicate that the identif ied measures at issue affect set top boxes with 
"modems of certain types (e.g., Ethernet modems)"  or STBCs "which incorporate a device performing 
a recording or reproducing function (e.g ., a hard disk or DVD drive)".
991 
7.765  The complainants argue, pursuant to commit ments made in the ITA, the European 
Communities is obliged to provide duty-free treatment  to STBCs.  In particular, the complainants 
allege that certain STBCs are covered by the duty -free concession set forth in the narrative description 
"set-top boxes which have a communication function: a microprocessor-based device incorporating a 
modem for gaining access to the Internet, and having a function of interactive information exchange", 
located in the Annex to the EC Schedule, regardle ss of which tariff line the products are classified 
under in the CN.992  The United States submits that the bound duty rate for these products is set forth 
in tariff item numbers 8517 50 90, 8517 80 90, 8525 20 99, and 8528 12 91, and as specified in the 
headnote, is zero. 
7.766  According to the complainants, despite this  duty-free concession, one of the challenged 
measures, an amendment to CNEN 2008/C 112/03, requi res that particular STBCs with "modems of 
certain types (e.g., Ethernet modems)" or STBCs "which incorporate a device performing a recording 
or reproducing function (e.g ., a hard disk or DVD drive)", be  excluded from duty-free heading CN 
code 8528 71 13.  In the same amendment, accordi ng to complainants, STBCs "which incorporate a 
device performing a recording or reproducing function (e .g., a hard disk or DVD drive)" must be 
classified under CN code 8521 90 00, which carries a 13.9 per cent ad valorem duty.993  The exclusion 
of STBCs with "modems of certain types (e.g.,  Ethernet modems)" from duty-free CN code 
8528 71 13, and the application of this 13.9 per cent duty on STBCs "which incorporate a device 
performing a recording or reproducing function (e.g., a hard disk or DVD drive)" is the essence of the 
complainants' claim. 
7.767  In addition, the United States and Chinese Taipei argue that actions of the European 
Communities concerning the delivery of opinions with  respect to the proposed amendments to the 
Explanatory Notes contained in 2008/C 112/03 in Oc tober 2006 and May 2007 are inconsistent with 
EC obligations under Articles X:1 and X:2 of th e GATT 1994.  The United States and Chinese Taipei 
argue that these opinions were not published in the EC Official Journal until 7 May 2008.  Further, 
they argue that EC member States were applying duties to set top boxes using the approach specified 
in 2008/C 112/03 prior to 7 May 2008.994 
7.768  The European Communities argues, however, that the complainants have misinterpreted the 
commitment for STBCs in the EC Schedule.  C onsequently, the European Communities rejects the 
complainants' Article II claims.  In addition, the European Communities rejects that the actions cited 
by the United States and Chinese Taipei are inconsistent with Articles X:1 and X:2 of the GATT 1994. 
7.769  In respect of the complainants' Article II clai ms, as with preceding claims, the Panel considers 
its task is therefore to determine: (a) the scope of  duty-free treatment in the EC Schedule; (b) whether 
                                                     
 
991 Joint Panel request, WT/DS375/8, 376/8, DS377/6, p. 4. 
992 Joint Panel request, WT/DS375/8, 376/8, DS377/6, p. 4. 
993 Joint Panel request, WT/DS375/8, 376/8, DS377/6, pp. 4-5. 
994 Although the three complainants made a joint request for the establishment of this Panel, which 
includes inter alia  joint claims under Article X of the GATT 1994, Japan did not pursue these particular claims 
in its submissions. WT/DS375/R 
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  the products identified by the complainants fall with in the scope of the duty-free tariff concession; (c) 
whether the challenged measures result in the impositi on of duties on the products at issue in excess 
of those provided for in the EC Schedule; and (d ) whether the measures at issue result in less 
favourable treatment of the products at issue th an that provided for in the EC Schedule.  
7.770  In light of the approach we have outlined above, we will first identify the measures and 
products at issue.  This is particularly important  in this case as the Eur opean Communities has called 
into question whether the particular measures are with in the Panel's terms of reference.  Therefore, 
before proceeding to the substance of the complain ants' claims, we first turn to address whether the 
complainants may bring their claim before the Panel.   
1. Preliminary issues 
7.771  During these proceedings, the European Communitie s has raised various issues with respect 
to STBCs claims.
995  As with their claim concerning flat panel display devices, the European 
Communities considers that one of the challenged m easures is not legally binding under EC law.  In 
addition, the European Communities has contended that  the complainants have failed to explain what 
constitutes the relevant EC concession and what ar e the precise terms of the concession.  The Panel 
will briefly address each of these issues in this section. 
7.772  We recall that the Appellate Body has explained that together, the identification of the 
specific measures at issue and the legal basis of th e claims comprise the "matter referred to the DSB" 
which forms the basis for a panel's terms of  reference under Article 7.1 of the DSU.996  
7.773  One of the essential purposes of the terms of refe rence is to establish the jurisdiction of the 
panel by defining the precise claims at issue in the dispute.997  The Appellate Body has also observed 
that the vesting of jurisdiction in a panel is a fu ndamental prerequisite for lawful panel proceedings.998  
Therefore, we must address these issues before we can proceed to address the substance of the complainants' claims. 
7.774  As the joint Panel request serves as the basis for the terms of reference of this Panel
999, we 
will start our analysis by first setting forth th e relevant text of the joint Panel request. 
                                                      
995 We note that the European Communities has not alleged particular violations of Article 6.2 of the 
DSU or the Panel's terms of reference, but instead alleges that the complainants have failed to make a "prima 
facie" case.  See European Communities' first written subm ission, para. 32.  Nevertheless, the Panel considers it 
appropriate to address issues raised by the European Communities, as well as additional issues that go to the Panel's terms of reference at the outset.  These issues  are enumerated in paragrap h 7.123 of these Reports. 
996 Appellate Body Report on Guatemala – Cement I , paras. 69-76. 
997 Appellate Body Report on Brazil – Desiccated Coconut , DSR 1997:I, p. 186. 
998 Appellate Body Report on Mexico – Corn Syrup (Article 21.5 – US) , para. 36. 
999 We recall, as set forth in para. 1.6 above, the Dispute Settlement Body (DSB) established a panel in 
the present dispute in accordance with Article 6 of  the DSU with the following terms of reference: 
"To examine, in the light of the relevant provisions in the covered agreements cited by the 
parties to the dispute, the matter referred to the DSB by the United States, Japan and the 
Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu in document WT/DS375/8, WT/DS376/8 and WT/DS377/6, and to make such findings as will assist the 
DSB in making the recommendations or in giving the rulings provided for in those 
agreements." See also Constitution of the Panel Established at the Request of the United States, Japan, and the 
Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu, WT/DS375/8, 376/8, DS377/6, p. 1.  WT/DS375/R 
 WT/DS376/R 
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  (a) STBCs:  The measures at issue 
7.775  In their joint Panel request, the complainants  identified the relevant EC measures at issue as 
follows: 
"Customs authorities of EC member States impose duties on STBs with a 
communication function.  The measures at issue through which they do so include: 
1. Council Regulation (EEC) No. 2658/87 of 23 July 1987 on 
the tariff and statistical nomenclature and on the Common Customs Tariff, including all annexes thereto, as amended
10;  and 
2. Explanatory Notes to the Combined Nomenclature of the 
European Communities, 2008/C 112/03, (7 May 2008), alone or in combination with Council Regulation (EEC) No. 2658/87 of 23 July 1987,
11   
as well as any amendments or extensi ons and any related or implementing 
measures.12 
__________ 
10 Including amendments adopted pursuant to Commission Regulation (EC) No. 1214/2007 of 
20 September 2007. 
11 See also the decisions of the Customs Code Committee discussed on page 5, infra. 
12 Including the actual application by customs authorities of EC member States of customs 
duties on imports of STBs with a communication function."1000 
7.776  The European Communities has not  contested the complainants' specific identification of the 
measures in its joint Panel request.  The releva nt aspects of these measures are discussed in detail 
below. 
(b) Is CNEN 2008/C 112/03 a measure that can be subject to WTO dispute settlement? 
7.777  We recall from the section of the Repor ts concerning flat panel display devices1001, the 
European Communities' position that CNEN in gene ral are not legally binding in the European 
Communities' legal order, and are in their essence  "important tools for the interpretation of the 
CN".1002  Most importantly, the European Communiti es maintains the view that CNEN are not 
binding on customs officials in their interpretation and application of the CN to customs determinations, to the extent a conflict arises be tween the terms of the CNEN and CN, including its 
Section and Chapters notes.
1003   
                                                      
1000 Joint Panel request, WT/DS375/8, 376/8, DS377/6, p. 4. 
1001 See paras. 7.130 et seq . 
1002 European Communities' first written submission, paras. 312-314; European Communities' response 
to Panel question No. 23; European  Communities' second written submissi on, paras. 47-49 and 55 (Exhibit 
TPKM-52)); European Communities' second oral statement, paras. 27-34. 
1003 European Communities' first written submission, para. 98; European Communities' second oral 
statement, paras. 38-43; European Communitie s' response to Panel question No. 122. WT/DS375/R 
WT/DS376/R WT/DS377/R 
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  7.778  As it is relevant to the complainants' clai m concerning STBCs, the Panel recalls its finding 
that the CNEN amendments at issue in this dispute are measures of general and prospective 
application that can be challenged "as such".  In pa rticular, we concluded that  CNENs are of "general 
application" because the application of a CNEN is not limited to a single import or a single importer, 
and they set forth rules or norms that are intended to have general and pros pective application that 
create legitimate expectations among the public and among private actors. 
7.779  For the same reasons as those stated in para graphs 7.158-7.160 the Pane l therefore concludes 
that CNEN 2008/C 112/03 can be challenged "as such". 
(c) Have the complainants' identifie d the EC concession at issue? 
7.780  In its first written submission, the European Communities argues that th e complainants have 
failed to explain what constitutes the EC concessi on for "set top boxes which have communication..." 
and where it is provided for, by referring both to th e narrative description appearing in Attachment B, 
and also the description in the Annex to the EC Schedule.
1004  The European Communities further 
argues that the complainants have failed to prope rly identify the precise language of the concession 
"set top boxes which have  a communication function" through their reference to "Set top boxes with a 
communication function", thus failing to analyse the te rms consistent with the approach set forth in 
Article 31 of the Vienna Convention.1005   
7.781  The complainants identified the relevant "con cessions" in their joint Panel request, as follows: 
"The Schedule provides in a headnote that '[ w]ith respect to any product described in 
or for Attachment B to the Annex to the Ministerial Declaration on Trade in 
Information Technology Products, to the exte nt not specifically provided for in this 
Schedule, the customs duties on such product,  as well as any other duties and charges 
of any kind…shall be bound and eliminated, as set forth in paragraph 2(a) of the 
Annex to the Declaration, wherever the produc t is classified.'  Attachment B includes 
'set-top boxes which have a communication function: a microprocessor-based device 
incorporating a modem for gaining access to the Internet, and having a function of 
interactive information exchange.'  The bound duty rate for this product, as set forth 
in HS items 8517 50 90, 8517 80 90, 8525 20 99, and 8528 12 91, and as specified in the headnote, is zero."
1006   
7.782  The complainants argued that they have properl y referred to the language that constitutes the 
concession in the Annex to the EC Schedul e, namely identifying "Set top boxes which have  a 
communication function".1007   
7.783  We consider the complainants have establishe d what they consider to be the relevant 
concession(s) at issue.  However, we consider that two issues arise in light of the European 
Communities' concerns with the complainants' discussi on of the relevant EC concession: first, what is 
the location of the concession arising under the re levant narrative product description for purposes of 
the Panel's analysis, and second, what are the impli cations of the reference to "set top boxes with a 
communication function" to this dispute. 
                                                      
1004 European Communities' first written submission, paras. 190-196. 
1005 European Communities' first written submission, paras. 197-201. 
1006 Joint Panel request, WT/DS375/8, 376/8, DS377/6, p. 4. 
1007 United States' first written submission, para. 43; Japan's first written submission, para. 350; 
Chinese Taipei's first written submission, para. 360.  WT/DS375/R 
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  7.784  We note that the European Communities has not ar gued that the complainants' alleged failure 
to identify the precise concession means that the comp lainants have breached the provisions of Article 
6.2 or other provisions of the DSU, in either respect .  We also recall our statement in paragraph 7.773 
above that Panels may choose to deal with issues on their own motion that it considers to go to the 
heart of its jurisdiction, to satisfy themselves that they may proceed.
 1008  We will first address where 
precisely the relevant concession is located.  Second, we will consider what are the relevant terms of 
the concession. 
Is the relevant commitment located in the Anne x to the EC Schedule, Attachment B, or both?  
7.785  The issue that arises over the European Communities' complain ant is whether the narrative 
description for "Set top boxes which have a comm unication function ..." is the narrative description 
reproduced separately in the Annex to the EC Sche dule, or that contained in Attachment B, or 
whether both texts are relevant.   
7.786  In addressing the location of the narrative d escription for "flat panel display devices..." 
above1009, we recall our view that the ITA participants did not intend for there to be discrepancies 
between the descriptions that appear in Attachme nt B of the ITA and those appearing in the EC 
Schedule.  Accordingly, as above, we will not address further the question of whether the focus 
should be on the narrative descriptions in Attachment  B of the ITA, or those reproduced separately in 
the Annex to the EC Schedule.  To the extent that the product descriptions themselves define the 
scope of the obligations (a point that we will re turn to below), we explained that the identical 
language used in these narrative product descriptions  in the ITA on the one hand, and as reproduced 
in the EC Schedule on the other, would give rise to obligations of identical scope. 
7.787  We thus turn to the second issue identified above. 
What are the implications of the reference to  "set top boxes with a communication function" 
to this dispute?  
7.788  We recall the European Communities' complaint over the identification of the language "Set 
top boxes with a communication function" in its submissions.1010  The European Communities 
considers the complainants' reliance on the descriptive language "set top boxes with a communication 
function", rather than the language of the concession  which uses the terms "which have", leads to a 
different conclusion on the scope of coverage, in light  of the definition of the term "with", which is 
defined as "denoting association of accompaniment", or accompanied by; having (a person or thing) 
as an addition accompaniment".1011 
7.789  We note that the United States and Japan have asserted that the phrase "set top boxes with a 
communication function" is "at times used simply  to paraphrase the language associated with the 
Attachment B headnote" and other times is "used to refer to the concession the EC made in 2000 for 
'set top boxes with a communication function.'"1012   
                                                      
1008 Appellate Body Report on Mexico – Corn Syrup (Article 21.5 – US) , paras. 36 and 53. 
1009 See para. 7.226 above. 
1010 European Communities' first written submission, paras. 197-201. 
1011 European Communities' first written submission, para. 217 (referring to the Shorter Oxford 
Dictionary (1993), p. 3703 (Exhibit EC-31)). 
1012 United States' and Japan's response to Panel question 80. WT/DS375/R 
WT/DS376/R WT/DS377/R 
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  7.790  In its first oral statement, the United States fu rther specified that it considers the European 
Communities has made separate commitments both for "set top boxes which have a communication 
function" and "set top boxes with  a communication function". The United States explains that the first 
arises from the inclusion of the headnote and narra tive description in the Annex to the EC Schedule, 
while the latter arises from a four th tariff line (tariff item number 8528 71 13) that the United States 
claims was added in 2000 to the Annex to the EC Schedule.
1013 The United States asserts that it has 
properly identified both of these conc essions in its initial submissions.1014 The United States has 
argued additionally that it did not consider there was any substantive distin ction between the terms 
"with" and "which have".1015 
7.791  The Panel has discussed above the circumstance s surrounding the addition of tariff item 
number 8528 71 13 to the Annex to the EC  Schedule via document G/MA/TAR/RS/74.1016   
7.792  In response, the European Communities argued that  it considers that the decision to notify an 
additional code in 2000 did not introduce a separate  narrative description into its Schedule nor modify 
the existing one.  At most, the European Commun ities argues that the addition of the tariff item 
number could be understood to mean that the na rrative description could be understood to cover a 
specific category of set top boxes capable of receiving television signals provided that these products otherwise satisfy the terms of the narrative description.
1017 
7.793  In view of the parties' further comments, we c onsider the implications of the parties' separate 
references to the term "with" in their submissions . We note that Japan and Chinese Taipei have 
limited their claims concerning set top boxes to an assessment of the STBCs narrative description.  
Accordingly, as we have determined these two partie s to have sufficiently identified the concession as 
the narrative description, we do not understand either of these complainants to have considered that 
the word "with" forms a literal part of the con cession.  In addition, we understand the United States 
has affirmed it has raised two separate claims co ncerning set top boxes. First, like the other two 
complainants, we consider the United States has suffi ciently set forth its claim pursuant to the STBCs 
narrative description. Separately, however, apar t from occasional paraphrasing of the narrative 
description, we understand the United States reference to the term "with" pertains to its second claim 
raised with respect to tariff commitments arising fro m four tariff lines that appear in the Annex to the 
EC Schedule in connection with the STBCs narrative description.   
7.794  In light of complainants reference in their jo int Panel request to the precise language of the 
concession as it appears in the EC Schedule, and th eir subsequent discussion of this language, we 
therefore consider that the complainants have explained what constitutes the concession.1018  Further, 
we will address the significance of the term "with" as  it may pertain to the United States' other claim 
in connection with tariff item number 85 28 71 13, to the extent relevant.  
                                                      
1013 United States' first oral st atement, paras. 13 and 16. 
1014 United States' second written submission, para. 23. 
1015 United States' first oral statement, para. 16. 
1016 See paras. 7.413-7.423 above. 
1017 European Communities' second written submission, para. 80.  The European Communities offers 
several reasons why the term "with" should not be given relevance.  First, it contends that the terms or phrase 
used by a domestic legislator to describe or name a product in the context of a classification measure should not be relevant for interpreting the scope of a tariff concession.  In addition, it argues that the terms "Set top boxes 
with a communication" were not intended to be included in the modified Schedule, only the code identified with 
it (European Communities second wr itten submission, paras. 77-78). 
1018 See, for instance, United States' first written submission, para. 43; Japan's first written submission, 
para. 350; Chinese Taipei's first written submission, para. 360.  WT/DS375/R 
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  7.795  Accordingly, the Panel will consider the effect of the EC measures identified by the 
complainants, and subsequently, the scope of th e relevant concessions in its assessment of the 
complainants' claims concerning Article II of the GATT 1994. 
2. The measures at issue and their effects 
7.796  The Panel will now consider the measures at issu e specifically identified  by the complainants, 
as set forth in paragraph 7.775 above, and their effects.   
(a) Council Regulation No. 2658/87, as amended 
7.797  As discussed in paragraphs 7.39-7.45 above , Council Regulation No. 2658/87 establishes the 
CN and CCT.
1019 
7.798  We recall that we concluded in paragraph 7.146 above that the Council Regulation No. 
2658/87, including its Annex I, as it has been most recen tly amended, is the specific measure at issue 
in this dispute and was properly identified as such in the joint Panel request. 
7.799  The CN2010 version includes the duty-free CN code 8521 90 00 as follows:1020 
CN code Description Conventional 
rate of duty (%) Supplementar
y unit 
1 2 3 4 
8521 Video recording or reproducing apparatus, whether 
or not incorporating a video tuner:   
8521 10 - Magnetic tape-type:   
8521 10 20 
 - - Using tape of a width not exceeding 1,3 cm and 
allowing recording or reproduction at a tape speed not exceeding 50 mm per second 14 p/st 
8521 10 95 - - Other 8 p/st 
8521 90 00 - Other 13.9 p/st 
 
7.800  The CN2010 version includes the duty-free CN code 8528 71 13, as well as the dutiable CN 
codes 8528 71 19 and 8528 71 90, as follows: 
CN code Description Conventional 
rate of duty 
(%) Supplementary 
unit 
1 2 3 4 
8528 Monitors and projectors, not incorporating television 
reception apparatus; reception apparatus for television, whether or not incorporating radio-broadcast receivers or 
sound or video recording or reproducing apparatus   
 - Reception apparatus for te levision, whether or not 
incorporating radio-broadcast receivers or sound or video   
                                                      
1019 Council Regulation No. 2658/87, Article 1 (Exhibits EC-49; US-13; TPKM-5). 
1020 The Panel notes that CN code 8521 10 20 in both the CNEN2007 and CNEN2008 contains a 
reference next to the conventional rate of duty of 14 per cent, which states, "Lower applied duty rate of 13 per cent until 24 December 2008 (Council Regul ation (EC) No 2114/2005 (OJ L 340 , 23.12.2005, p. 1))" (Exhibit 
JPN-3). WT/DS375/R 
WT/DS376/R WT/DS377/R 
Page 238 
  
  CN code Description Conventional 
rate of duty 
(%) Supplementary 
unit 
recording or reproducing apparatus 
8528 71 - - Not designed to incorporate a video display or screen   
 - - - Video tuners:   
8528 71 11  - - - - Electronic assemblies for incorporation in automatic 
data-processing machines Free 
 p/st 
 
8528 71 13 
 - - - - Apparatus with a microprocessor-based device 
incorporating a modem for gaining access to the Internet, 
and having a function of interactive information exchange, capable of receiving television signals ('set-top boxes with 
communication function')  Free 
 p/st 
 
8528 71 19 - - - - Other 14 p/st 
8528 71 90 - - - Other 14 p/st 
8528 72 - - Other, colour   
8528 72 10 - - - Television projection equipment 14 p/st 
8528 72 20 - - - Apparatus incorporating a video recorder or 
reproducer 14 p/st 
 - - - Other:   
 
7.801  The terms and applicable duty rates of CN codes 8521 90 00, 8528 71 13, 8528 71 19 and 
8528 71 90 are identical in the CN2007 version (c ontained in Commission Regulation No. 1549/2006, 
as amended), the CN2008 version (contained in Commission Regulation No. 1214/2007, as 
amended), the CN2009 version (contained in Co mmission Regulation No. 1031/2008, as amended), 
and the CN 2010 version (contained in Comm ission Regulation No. 948/2009, as amended).1021 
(i) Arguments of the parties 
7.802  The complainants  have identified Council Regulation No. 2658/87, as amended, as providing 
the basic EC measure on tariffs, wherein set top boxes are classified either under CN code 8521, 
covering "recording or reproducing apparatus" or under CN code 8528 ( under either CN code 
8528 17 13, 8528 71 19 or 852 8 71 90) concerning "Reception appara tus for television, whether or 
not incorporating radio-broadcast receivers or s ound or video recording or reproducing apparatus; 
video monitors and video projectors". 
7.803  The European Communities  does not dispute that certain STBCs may be classified under 
dutiable CN codes 8521 90 00, 8528 71 19, or 8528 71 90.1022 
(ii) Consideration by the Panel 
7.804  The parties do not appear to dispute the content of the CN.  As noted in paragraphs 7.799-
7.801, the CN2007 version and subsequent versi ons (through the CN2010 version) include the CN 
codes 8521 90 00, 8528 71 13, 8528 71 19 and 8528 71 90.  The terms and applicable duty rates for the relevant headings have remained identical in the subsequent versions of the CN, i.e. in CN2008, 
CN2009 and its current version, CN2010.   
                                                     
 
1021 CN2007 (Exhibits US-47; JPN-2; TPKM-34); CN2008 (Exhibit JPN-3); CN2009 (Exhibits US-11; 
JPN-20; TPKM-21). 
1022 European Communities' first written submission, para 278.  WT/DS375/R 
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  7.805  CN code 8528 71 13, which is duty free - and which, before CN2007 was 8528 12 91 
- concerns: 
"- Reception apparatus for television, whet her or not incorporating radio-broadcast 
receivers or sound or video recording or reproducing apparatus:; - - Not designed to 
incorporate a video display or screen:; - - - Video tuners:; - - - - Electronic assemblies for incorporation in automatic data-pro cessing machines; - - - - Apparatus with a 
microprocessor-based device incorporating a modem for gaining access to the Internet, and having a function of inter active information exchange, capable of 
receiving television signals ('set-top boxes with communication function')". 
7.806  CN code 8528 71 19 applies a 14 per cent duty rate.  CN code 8528 71 90 applies a 14 per 
cent duty rate. 
7.807  CN code 8521 90 00, which has a duty rate  of 13.9 per cent duty rate, concerns: 
"Video recording or reproducing apparatus, whether or not incorporating a video 
tuner:; - Magnetic tape-type:; - - Using ta pe of a width not exceeding 1,3 cm and 
allowing recording or reproduction at a tape  speed not exceeding 50 mm per second; - 
- Other; - - - Other". 
7.808  In conclusion, Council Regulation No. 2658/1987, as amended, sets forth in CN 8528 71 13, 
the duty-free CN code that applies to the followi ng products: "Apparatus with a microprocessor-based 
device incorporating a modem for gaining access to th e Internet, and having a function of interactive 
information exchange, capable  of receiving televi sions signals ('set-top boxes with communication 
function')".  In addition, the CN establishes du tiable CN codes 8521 90 00, applicable to "[v]ideo 
recording or reproducing apparatus,  whether or not incorporate a video tuner", which sets a 13.9 per 
cent duty.  The CN also sets forth CN codes 8528 71  19 and 8528 71 90, as "o ther" headings, each of 
which sets a duty rate of 14 per cent. 
(b) CNEN 2008/C 112/03 
7.809  On 7 May 2008, the European Communities published CNEN 2008/C 112/03 which includes 
the following excerpts pertaining to CN codes 8521 90 00, 8528 71 13, 8528 71 19 and 8528 71 90: 
"'
8521 90 00  Other  
This subheading includes apparatus w ithout a screen capable of receiving 
television signals, so-called "set-top  boxes", which incorporate a device 
performing a recording or reproducing function (for example, a hard disk or DVD drive). 
On page 339, the following text is inserted: 
'8528 71 13  Apparatus with a microprocessor-based device incorporating a modem 
for gaining access to the Internet, and having a function of interactive 
information exchange, capable of recei ving television signals ("set-top 
boxes with communica tion function")  
This subheading covers apparatus without a screen, so-called "set-top boxes 
with communication function", consisting of the following main components: WT/DS375/R 
WT/DS376/R WT/DS377/R 
Page 240 
  
  —  a microprocessor, 
—  a video tuner. 
The presence of an RF connector is an  indicator that a video tuner may be 
present. 
—  a modem. 
Modems modulate and demodulate outgoing as well as incoming data 
signals. This enables bidirectional communication for the purposes of 
gaining access to the Internet.  Exam ples of such modems are: V.34-, 
V.90-, V.92-, DSL- or cable modems. An indication of the presence of such a modem is an RJ 11 connector. 
Devices performing a similar function to that of a modem but which do 
not modulate and demodulate signals are not considered to be modems. Examples of such apparatus are ISDN -, WLAN- or Ethernet devices. An 
indication of the presence of such a device is an RJ 45 connector. 
The modem must be built into the set-top box. Set-top boxes which do not 
have a built-in modem but use an external modem are excluded from this 
subheading (e.g. a set consisting of a set-top box and an external modem). 
The Transmission Control Protocol/Internet Protocol (TCP/IP) must be present 
as firmware in the set-top box. 
Set-top boxes of this subheading must enable the user of the apparatus to 
access the Internet. The apparatus must  also be able to run Internet 
applications in an "interactive informa tion exchange" mode such as an e-mail 
client or a messaging application using UDP or TCP/IP sockets. 
Set-top boxes which incorporate a device performing a recording or 
reproducing function (for example, a hard disk or DVD drive) are excluded 
from this subheading (subheading 8521 90 00). 
8528 71 19  Other 
See  the last paragraph of  the Explanatory Notes to subheading 8528 71 13. 
8528 71 90  Other 
This subheading includes products w ithout a screen which are reception 
apparatus for television but which do not incorporate a video tuner (for 
example, so-called 'IP-streaming boxes'). 
See also the last paragraph of  the Ex planatory Notes to subheading 8528 71 
13.'
" 
7.810  In addition to this CNEN amendment as pub lished in the EU Official Journal, the 
complainants referred in their joint Panel request to certain decisions of the Customs Code Committee 
(Tariff and Statistical Nomenclature Section), incl uding opinions delivered with respect to this CNEN 
amendment in draft form in October 2006 and May 2007.  Both these CNEN amendment proposals  WT/DS375/R 
 WT/DS376/R 
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 Page 241 
  
  formed the basis for the CNEN am endment that was published in the EU Official Journal on 7 May 
2008. 
7.811  In October 2006, the Customs Code Committee (Tar iff and Statistical Nomenclature Section) 
considered a Commission proposal for a CNEN amendment concerning CN code 8528 12 20 for 
"reception apparatus for colour television, incorpor ating a video recorder or reproducer"; CN codes 
8528 12 90 to 8528 12 95 for "video tuners"; CN code 8528 12 91 for "set top boxes with communication function"; and CN code 8528 12 98 for "other".
1023   
7.812  In May 2007, the Customs Code Committee (Tar iff and Statistical Nomenclature Section) 
considered a Commission proposal for a CNEN amendment, excluding "STBs with HDD" from CN 
code 8528 12 91 but no opinion was delivered, while the text of the draft was added to the minutes of 
the Customs Code Committee meeting.1024  
(i) Arguments of the parties 
7.813  In accordance with the 2008/C 133/01, the complainants  argue that the European 
Communities improperly applies either 13.9 or 14 per cent duties on certain set top boxes that should 
be extended duty-free treatment.  In particular, under this CNEN, the complainants argue that the 
following products are excluded from duty-free trea tment under CN code 8528 71 13: (i)  set top 
boxes with a hard disk or DVD drive are excluded from CN code 8528 71 13 and must be classified in CN code 8521 90 00 and subject to a 13.9 per cent duty; (ii) set top boxes with ISDN, WLAN or Ethernet technology are excluded from CN code 852 8 71 13 and are classified under 8528 71 19 and 
subject to a 14 per cent duty; (iii) set top boxes that use an external (not "built in") modem are 
excluded.
1025 
7.814  The European Communities  does not dispute that these CN co des are subject to either 13.9 
or 14 per cent duties.1026  Nevertheless, the European Commun ities submits that consideration of 
whether a particular product is a set top box which has a communication function that qualifies for 
duty-free treatment requires objective consideration of  "the totality of technological elements present 
in the set top box" subject to the GIRs.1027  It argues that, if a set top box fulfils the objective 
characteristics of a reception apparatus for televi sion, it is to be classified in heading 8528.  
Otherwise, if a product has the char acteristics of a video recording or reproducing apparatus, it is 
classified in heading 8521.  In this latter respect , the European Communities asserts that the presence 
of a hard disk is not assessed in isolation of other characteristics of the product.  In addition, it argues 
that products may be classified under CN code 8528 71 19 if they do not incorporate a modem, or 
under CN code 8528 71 90 if they are reception appa ratus for televisions, but do not incorporate a 
tuner.  In cases where classification cannot be de termined the European Communities argues that 
products are classified in accordance with GIR 3.  The European Communities considers that CNEN 
generally do not have binding legal authority and th erefore should not form the basis of an "as such" 
challenge.1028 
                                                      
1023 Customs Code Committee (407th meeting) (Exhibit TPKM-30). 
1024 Customs Code Committee (420th meeting) (Exhibit TPKM-31). 
1025 United States' first written submission, paras. 48, 89 and 98-99, 104; Japan's first written 
submission, para. 359, 388; Chinese Taipei's first written submission, paras. 103-104. 
1026 European Communities' first written submission, para. 278. 
1027 European Communities' response to Panel question No. 83; European Communities' first written 
submission, paras. 279 and 286. 
1028 See paragraphs 7.147-7.148 above. WT/DS375/R 
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  (ii) Consideration by the Panel 
7.815  In paragraphs 7.160 above, we determined th at CNENs in general are "authoritative", setting 
forth rules or norms that have or are intended to have general and prospec tive application, having 
normative value and providing administrative guidan ce, and creating expectations among the public 
and among private actors.  On this basis, we determ ined that CNENs can be challenged "as such", in 
particular since they are issued by the European  Communities, provide administrative direction to 
customs authorities, and create legitimate expectat ions.  Accordingly, the Panel will consider the 
effect of the CNEN 2008/C 112/03 on classification of STBCs.  The Panel will focus on the particular 
CNEN to CN codes 8521 90 00, 8528 71 13, 8528 71 19 and 8528 71 90. 
7.816  CNEN 2008/C 112/03 refers, inter alia , to CN code 8528 71 13, whic h applies to "[a]pparatus 
with a microprocessor-based device incorporating a modem for gaining access to the Internet, and 
having a function of interactive information exch ange, capable of receiving television signals", 
identified specifically as "set-top bo xes with communication function".   
7.817  Under the CNEN to CN code 8528 71 13, set top boxes which incorporate a device 
performing a recording or reproducing function, incl uding specifically a hard disk or DVD drive are 
excluded from this subheading, and are directed to be classified in subheading 8521 90 00.  CN code 
8521 90 00 covers "set-top box es" ("apparatus without a screen capable of receiving television 
signals") which incorporate a device performi ng a recording or reproducing function, including 
specifically a hard disk or DVD drive.  This c ode carries a 13.9 per cent duty, as discussed in the 
preceding section.  
7.818  In addition, the CNEN to CN code 8528 71 13  indicates that the described "set top box" 
contains three main components: a microprocessor, a video tuner and a modem.  Under the CNEN to this heading, modems are indicated to modulat e and demodulate outgoing as well as incoming data 
signals to enable bidirectional communication for the purposes of gaining access to the Internet.  
While several examples of modems are provided (V.34-, V.90-, V.92-, DSL- or cable modems), 
ISDN-, WLAN- or Ethernet devices are expressly excluded as modems that modulate and demodulate signals. 
7.819  Accordingly, we understand that apparatus contai ning in particular ISDN, WLAN or Ethernet 
technology as apparatus that do not contain a "modem"  within the meaning of the CNEN amendment, 
which indicates that that apparatus will not comply  with the requirement in the heading to possess 
each of a microprocessor, a video tuner and a modem .  Thus, a "set-top box with communication 
function" that incorporates ISDN, WLAN or Ethern et technology is expressly excluded from CN code 
8528 71 13.  A "set top box" incorporating ISDN, WLAN or Ethernet technology is classifiable under either dutiable CN codes 8521 90 00 or anothe r CN code (CN code 8528 71 19 or CN code 
8528 71 90) depending on the presence or not of a recording or reproducing function. 
7.820  Set-top boxes which do not have a built-in mode m, but use an external modem are similarly 
excluded from CN code 8528 71 13.  It  is not expressly indicated which CN code would be applicable 
for such a product.  However, the European Communities has confirmed that these products are 
classifiable under CN code 8528 71 19 that is described  in CNEN 2008/C 112/03 as "other".  CN code 
8528 71 19 assigns a 14 per cent duty under th e current CN2010 (and as well as 2007-2009 CN 
versions).  The CNEN to CN code 8528 71 19 re fers to language in the concluding paragraph of 
CN code 8528 71 13, indicating that such products th at incorporate a device performing a recording or 
reproducing function are not to be classi fied in CN code 8528 71 19 either.  WT/DS375/R 
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  7.821  Finally, the CNEN to CN code 8528 71 90 described as "Other" indicates that it covers 
products without a screen which are reception appara tus for television but which do not incorporate a 
video tuner, including "so-called 'IP-streaming boxes'".  The CNEN similarly refers to CN code 
8528 71 13.  Thus, we understand that products classi fiable in 8528 71 90 must also be excluded from 
coverage there if they perform a recording or  reproducing function.  These products would be 
classifiable in 8521 90 00 and simila rly subject to a 14 per cent duty. 
7.822  In summary, we conclude that products may only qualify under duty-free CN code 
8528 71 13 to the extent they meet the terms of th e concession generally.  However, set top boxes that 
do not have a built-in modem, as described in th e provisions, or otherwise incorporate ISDN, WLAN 
or Ethernet technology, are excluded.  A set t op box that qualifies as a product without a screen which 
is a reception apparatus for television but which does not incorporate a video tuner is also excluded.  
Finally, any set top box that contains a device perfo rming a recording or reproducing function, such as 
a hard drive or DVD drive, will also be excluded.   Based on the text of CNEN 2008/C 112/03, we 
have no evidence before us to conclude that devi ces that fulfil these conditions are not excluded, or 
that resort might be had to GIR 3 if prima facie classifiable under other headings.  As noted, products 
that are in part described by CN code 8528 71 13 but that do not meet the requirements enumerated in this paragraph are required to be classified unde r other codes under heading 8528, subject to 14 per 
cent duties, or otherwise under CN code 8521 90 00 and subject to 13.9 per cent duties. 
(c) The application of duties on imports of certain set top boxes 
7.823  In addition to the above measures at issue, in  their joint Panel request, the complainants 
specified that the measure at i ssue includes "the actual application by customs authorities of EC 
member States of customs duties on imports  of STBs with a communication function".
1029  I n  
response to a question from the Panel, however, th e complainants indicated that they were not 
challenging the application of any EC measures.1030  Accordingly, the Panel will not consider 
particular applications by EC member State customs officials, or reach findings with respect to 
particular applications. 
(d) Conclusions 
7.824  In our analysis of the measures above, we c oncluded that CN code 8528 71 13 is duty-free, 
while CN codes 8521 90 00, 8528 71 19 and 8528 71 90 ar e all dutiable.  Further, we concluded that 
CNEN 2008/C 112/03 identifies certain product charact eristics as dispositive for classification in CN 
codes other than duty-free treatment under CN code 8528 71 13.  In particular, we found that set top 
boxes that do not have a built-in modem, as descri bed in the provisions, or otherwise incorporate 
ISDN, WLAN or Ethernet technology, are excluded.  A set top box that qualifies as a product without a screen which is a reception apparatus for televisi on but which does not incorporate a video tuner is 
also excluded.  Finally, any set top box that cont ains a device performing a recording or reproducing 
function, such as a hard drive or DVD drive, will also be excluded. 
3. The complainants' further identification of the products at issue 
(a) Arguments of the parties 
7.825  The United States  and Japan argue that STBCs are "an electronic apparatus that connects to 
a communication channel, such as a phone, integrat ed services digital network (ISDN) or cable 
                                                     
 
1029 Joint Panel request, WT/DS375/8, 376/8, DS377/6, p. 4. 
1030 See complainants' responses to Panel question No. 119. WT/DS375/R 
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  television line, and produces output on a conventional television screen".
1031  The United States and 
Japan argue that these set top boxes "enable a televi sion set to receive and decode digital television 
(DTV) broadcasts and are often referred to as 'cable boxes' or 'receivers'" and "vary greatly in their 
complexity".1032  The United States and Japan submit furt her that these set top boxes additionally 
enable connection to the Internet, and to send a nd receive information via "interactive information 
exchange".1033  Japan submits that such "interactive inform ation exchange" occurs in real time over 
the Internet using a modem.1034  Chinese Taipei  argues that set top boxes which have a 
communication function are "devices that enable a television set to receive and decode digital 
television ('DTV') signals ... that are used for satellite , cable and terrestrial digital televisions ... [and] 
... include the capability to connect to the Internet through a modem".1035  Chinese Taipei and Japan 
submit that STBCs " sometimes include  a hard disk to record television programmes, download 
software from the DTV provider and to perform ot her ancillary applications enabled by the DTV 
provider".1036  Japan and Chinese Taipei submit that its  claim with respect to set top boxes does not 
concern tariff treatment applicable to a specific models, but rather, it concerns a "number of criteria" 
used by the European Communities to determine the tariff treatment of a category of products.1037 
7.826  The European Communities  argues that the complainants have not met their burden to 
sustain their "as such" claims due to their failure  to identify the products or product categories at 
issue.1038  For this reason, it considers that the complainants have failed to establish that all set top 
boxes are subject to duties to necessarily violate its commitments.1039  The European Communities 
argues that the United States' and Japan's descr iption of the products selects and de-emphasizes 
different technical elements, while Chinese Taipei provides "an entirely unsupported description" of 
the product.1040  In the view of the European Communiti es, by joining and combining descriptive 
elements from various sources and time periods, the co mplainants fail to address differences between 
the products existing at the time of the conclusion  of the ITA and the product as it existed/exists at 
later times.1041  The European Communities argues that cons ideration of certain models, such as set 
top boxes with a recording function, demonstrates that  the main features of certain set top boxes make 
them "digital video recorders", which are "compl etely different" than what is covered by the 
concession.1042  Generally, the European Communities ar gues that particular set top boxes when 
considered objectively, are not eligible for duty-fr ee treatment, such as a set top box that performs a 1 
                                                      
1031 United States' first written submission, para. 42; Japan's first written submission, para. 344 
(referring to informitv glo ssary, http://informitiv.com/glossary/settopbox/ (Exhibit US-22); ITV dictionary.com 
http://www.itvdictionary.com (Exhibit US-23, JPN-11)). 
1032 United States' first written submission, para. 42; Japan's first written submission, para. 344 
(referring to Newton's Telecom Dictionary (10th ed. 1996), p. 1041 (Exhibit US-24, Exhibit JPN-11)). 
1033 United States' first written submission, para. 42; Japan's first written submission, para. 344 
(referring to Annabel Z. Dodd, the E ssential Guide to Telecommunications (3rd ed. 2001), p. 308 (Exhibit US-
25, Exhibit JPN-11)). 
1034 Japan's first written submission, para. 345. 
1035 Chinese Taipei's first written submission, para. 15. 
1036 Japan's first written submission, para. 345 (e mphasis added); Chinese Taipei's first written 
submission, para. 15. 
1037 Japan's second written submission, para. 197; Chinese Taipei's second written submission, 
para. 225. 
1038 European Communities' second written submission, para. 67; European Communities' second oral 
statement, paras. 51 and 58. 
1039 European Communities' second written submission, para. 68. 
1040 European Communities' first written submission, para. 202 (referring to Exhibits US-22 to 25). 
1041 European Communities' first written submission, para. 205. 
1042 European Communities' first written submission, para. 260 (referring to Exhibit EC-43 to 45, 
US-28).  WT/DS375/R 
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  per cent "communication" function a nd 99 per cent "other" functions.
1043  In its view, if the 
complainants' broad approach were followed, no matter how prevailing the recording function, that 
product, and any other possible product in the future would be considered an ITA product as long as 
the "technological elements" fit inside a "box" that enables a communication function.1044 
(b) Consideration by the Panel 
7.827  We recall from above our finding that the task befo re us in respect of the complainants' claims 
based on Article II of the GATT 1994, is to determin e whether the measures at issue result in duties 
being levied on certain products, in excess of th e tariff treatment provided for those products under 
the EC Schedule.  In doing so, we explained our und erstanding of the complainants' claim to be that 
aspects  of the measures operate automatically to excl ude from particular duty-free tariff headings all 
products with a certain characteristic irrespective  of the other objective characteristics they may 
possess.  Thus, we concluded that, if we were to de termine that some products fall within the scope of 
duty-free concessions in the EC Schedule, and if th e challenged measures provided for the application 
of duties to those products covered by the c oncession, this treatment would breach Article II.1045  
7.828  Accordingly, we disagree with the European Communities that th e complainants were obliged 
in this case to identify the particular models or pr ecise products at issue in order to succeed with their 
claim.  We consider that the measures within our terms of reference determine the products that are 
within our terms of reference.  The Panel will cons ider below these and other aspects of the measures 
in its assessment in determining whether the comp lainants have met their burden to demonstrate 
inconsistency of the measures at issue under Article II of the GATT 1994.   
7.829  In making our assessment, we note that the complainants have referred to various 
characteristics of the products in framing their arguments  to the Panel.  In particular, the complainants 
submit that a set top box with a communication function is an electronic apparatus that connects to a communication channel, including through techno logies based on phone, ISDN or cable television 
line.   They argue these devices enable connection to the Internet and handle information interactively, 
and produce output on a conventional television screen .  In addition, the co mplainants submit that 
these devices connect to a television set to receive and decode digital television broadcasts, including 
over satellite and cable.  The complainants also argue that the addition of a hard drive to a set top box 
with a communication function does not change its nature as a set top box with a communication function.
1046   
7.830  Bearing in mind the foregoing, we consider that  the products at issue in this dispute are 
(i) electronic apparatus that enable a video mon itor or television to receive and decode digital  
television broadcasts from a communication channel, which are capable of connecting to the Internet 
through an in-built WLAN, ISDN or Ethernet devi ce in order to have an interactive information 
exchange; and (ii) electronic apparatus that meet  the terms of the description in the CNEN and 
otherwise incorporate a device performing a recording or reproducing function, such as a hard disk or 
DVD drive. 
7.831  In the Panel's view, therefore, the two main issues before it concern whether the concession 
for "Set top boxes which have a communication func tion" covers electronic devices that achieve an 
interactive communication function via WLAN, ISDN or Ethernet, and whether the concession covers 
                                                      
1043 European Communities' first written subm ission, paras. 258-260 (Exhibit EC-46). 
1044 European Communities' response to Panel question No. 69. 
1045 See paras. 7.103-7.117 above. 
1046 Complainants' response to Panel questions Nos. 85, 88 and 146. WT/DS375/R 
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  those devices containing recording functionality (for example, a hard drive or DVD drive), in addition 
to an interactive communication function.  As not ed in paragraphs 7.8 09-7.812 above, these aspects 
are reflected in the text of the measure CNEN 2008/ C 112/03, and were the focus of the complainants' 
arguments.  The Panel will thus proceed on the basis of the products affected by these aspects of the 
measures, and in light of the description of the product presented by the parties. 
4. Whether the European Communities' tariff tr eatment of particular set top boxes is 
consistent with its obligations under Article II of the GATT 1994 
7.832  The European Communities made duty-free conc essions on certain information technology 
products as part of its implementa tion of the ITA, which are reflected in the EC Schedule.  The 
complainants' claim relates to the concession embo died in the narrative description "Set top boxes 
which have a communication function: a micropr ocessor based device incorporating a modem for 
gaining access to the Internet and having a function of  interactive information exchange" in the Annex 
to the EC Schedule.  In addition, the United States argues that the Eu ropean Communities has 
committed to provide duty-free treatment to set top boxes in accordance with concessions embodied 
in the EC Schedule under CN codes 8517 50 90, 8517 80 90, 8525 20 99 or 8528 12 91 listed therein.  
The complainants argue that by not affording dut y-free treatment to products which are within the 
scope of these tariff concessions, the European Co mmunities is acting inconsistently with its 
obligations under Article II of the GATT 1994, which requires that Members not treat products 
coming from another Member less favourably than in their schedules or to charge duties in excess of 
the bound rates set forth in said Schedule.    
7.833  As noted above, we will start by determining th e scope of the STBCs concession in the Annex 
to the EC Schedule.  We will then turn to consider  the United States' claim with respect to CN codes 
8517 50 90, 8517 80 90, 8525 20 99 or 8528 12 91.  Ha ving determined the scope of the relevant 
obligation in the EC Schedule, we will then consider whether the eff ect of the measures at issue noted 
above is such that products that fall within the sc ope of the EC's obligations do not receive duty-free 
treatment. 
(a) The Ordinary Meaning of the Relevant Con cession: The EC headnote and narrative product 
description for STBCs in the Annex to the EC Schedule 
7.834  The complainants  submit that certain set top boxes are covered by the duty-free concession 
in the narrative description for STBCs  in the Annex to the EC Schedul e ("Set top boxes which have a 
communication function: a microprocessor based de vice incorporating a modem for gaining access to 
the Internet and having a function of  interactive information exchange").
1047  They argue that the 
ordinary meaning of the terms of the STBCs narrativ e description, when read in the context of the EC 
headnote, requires the European Communities to extend duty-free coverage to all products described 
by the narrative description, wherev er those products are classified.1048  In their view, the tariff item 
                                                      
1047 The following third parties also take this view:  see, for instance, Australia's oral statement, 
paras. 8, 13; China's executive summary of its third party submission, para. 3; Costa Rica's third party 
submission, para. 5, 22-23; Hong Kong (China)'s third party statement, paras. 4-5; Korea's third party submissions, paras. 10-11, 22; Philippines' third party subm ission, para. 3; Philippines' third party statement, pp. 
5-6; Singapore's oral statement, paras. 9 and 48. 
1048 Complainants' response to panel question No. 10 0.  The United States and Chinese Taipei submit 
that the ITA itself does not provide for the inclusion of a headnote; however, they argue that participants agreed, 
during the implementation phase, to incorporate a headnote into their Schedules as part of the process of 
implementing their Attachment B conce ssions.  They argue that such a h eadnote was to include the language 
"wherever they are classified in the HS" (United Stat es' and Chinese Taipei's responses to panel question 
No. 100).   Japan argues that the ITA does not require th e incorporation of a headnote  when inscribing duty-free  WT/DS375/R 
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  numbers listed beside the narrative descriptions cannot limit the concession's scope to only those 
products classifiable in the listed codes.  The Unite d States describes the EC headnote as a "separate" 
commitment, additional  to the commitments as sociated with individual tariff lines in the EC 
Schedule.
1049 
7.835  The European Communities  accepts that the EC headnote is part of its Schedule1050, but 
rejects the complainants' allegations on the ordi nary meaning of the terms in the EC headnote1051 as 
well as the STBCs narrative description.1052  The European Communities ar gues that the three tariff 
item numbers listed next to the STBCs narrative description determine the scope of the STBCs 
commitment made pursuant to Attachment B and therefore shed light on what products were 
understood to be covered.1053 
7.836  As explained above,1054 the Annex to the EC Schedule contains (i) the EC headnote, and (ii) a 
table listing 55 narrative descriptions (including th e STBCs narrative description) in a left-hand 
column with one or more specific tariff item numb ers listed next to each narrative description in the 
table's right-hand column (includi ng four codes associated with the STBCs narrative description). 
7.837  We recall that the EC headnote provides as follows: 
"With respect to any product described in or for Attachment B to the Annex to the 
Ministerial Declaration on Trade in Information Technology Products (WT/MIN(96)/16), to the extent not specifically provided for in this Schedule, the customs duties on such product, as well as any other duties and charges of any kind 
(within the meaning of Article II:1(b) of the General Agreement on Tariffs and Trade 
1994) shall be bound and eliminated as set fort h in paragraph 2(a) of the Annex to the 
Declaration, wherever the product is classified".
1055 
7.838  The text of the STBCs narrative description, th at appears below the EC headnote, provides as 
follows: 
                                                                                                                                                                     
concessions on products described in Attachment B into ITA participants' Schedules.  It argues that participants 
had discretion concerning how to reflect this commitment into their own Schedules subject to review and 
approval by the Members.   While arguing that no requirement exists to incorporate a particular headnote, Japan 
submits it included a note that is "almost the same" as the EC headnote (Japan's response to panel question No. 100). 
1049 United States' comments to the European Communities' response to Panel questions Nos. 100 and 
103 and to questions 1-3 of the United States. 
1050 European Communities' first written submission, para. 18. 
1051 European Communities' first oral statement, para. 20. 
1052 European Communities' first written submission, paras. 104-118. 
1053 European Communities' first written submission paras. 50-61.  The European Communities has 
argued that the CN codes that appear  next to the product descriptions (such as for instances, the FPDs narrative 
description) "appear twice" in its Schedule, as those c odes listed next to the narrative descriptions in the Annex 
to the EC Schedule are also listed el sewhere in the EC Schedule and carry  a zero duty.  Thus, the European 
Communities considers that the CN codes in the Annex to the EC Schedule "exhaust" the headnote, in particular 
the language "wherever the product is classified" that appears therein.  Accordingly, the European Communities 
does not consider the headnote adds to its commitments  (see, for instance, European Communities' first oral 
statement, para. 19; European Communities' response to questions from the United States during second 
meeting, para. 1). 
1054 See paragraphs 7.24 - 7.25 above. 
1055 Exhibit US-7. WT/DS375/R 
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  "Set top boxes which have a communication function: a microprocessor based device 
incorporating a modem for gaining access to the Internet and having a function of interactive information exchange".
1056 
7.839  The following four tariff item numbers are asso ciated with the STBCs narrative description:  
85175090, 85178090, 85252099, 85281291.1057   
7.840  The complainants have identified both the ST BCs narrative description and the EC headnote 
in discussing the concession that they consider to ar ise under the Annex to the EC Schedule.  Because 
the EC headnote appears at the outset of the Annex to the EC Schedule and thus precedes the 
narrative descriptions, we consider it appropriate to begin our analysis with the EC headnote before 
turning to the narrative description.  Pursuant to  Article 31 of the Vienna Convention, we will 
consider the ordinary meaning of the EC headnote. 
(i) The meaning of the terms of the EC headnote 
7.841  The Panel recalls its conclusions from paragraph 7.330 et seq . above regarding the 
interpretation of the EC headnote  in the Annex to the EC Schedule.  In accordance with Article 31 of 
the Vienna Convention, the Panel determined that the EC headnote operates so that  the EC concession 
is defined by the narrative product descriptions in th e Annex to the EC Schedule and not by the terms 
of the tariff item numbers beside them, which are "illustrative" of the head ings that the European 
Communities considered relevant at the time of im plementation of the ITA.  The tariff item numbers 
do not delimit the particular products th at should be extended duty-free treatment.1058   
7.842  The Panel found support for this in the context provided by the ITA, other aspects of the EC 
Schedule, and other WTO Members' schedules of co ncessions, and in light of the object and purpose 
of the WTO Agreement  and GATT 1994. As a separate matter, be cause the language of the dispositive 
product descriptions at issue, are not based on HS  language and do not refer to the HS, the Panel 
further considered that HS interpretative material s, including section and chapter notes and GIRs, are 
not relevant to an assessment of the scope of produc t coverage.  Neither did we  consider relevant the 
CNEN, which are not part of the HS. 
7.843  Likewise, the EC concession for set top boxes in  the Annex to the EC Schedule is defined 
only by the relevant narrative description, which we now  analyse.  On the basis of our findings above, 
we will consider the ordinary meaning of the sp ecific terms of the STBCs  narrative description to 
determine the treatment under the EC concession.  Again, the Panel will assess the narrative 
description in accordance with the principles of treaty  interpretation as codified in Article 31 of the 
Vienna Convention. 
                                                      
1056 Exhibit US-7. 
1057 Exhibit US-7.  CN codes 85175090, 85178090 and 85252099 also appear in the EC Schedule's 
consolidated section that lists the HS1996 duty-free codes from Sections 1  and 2 of Attachment A.  The fourth 
code, CN code 8528 12 91, was adde d to the Annex to the EC Schedule , in 15 December 2000.  See EC ITA 
Modifications; Committee on Market Access, Rectificati ons and Modifications of Schedules, Schedule CXL – 
European Communities, G/MA/TAR/RS/74  (15 December 2000) (Exhibit US-26). 
1058 See in particular paras. 7.445-7.447 for a summary  of overall conclusions on interpretation of the 
EC headnote and on the relevance of the narrative product descriptions and CN codes in the Annex to the EC 
Schedule.  WT/DS375/R 
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  (ii) The terms of the STBCs na rrative description in the Annex to the EC Schedule  
7.844  We recall that the STBCs narrative description provides: 
"Set top boxes which have a communication function: a microprocessor based device 
incorporating a modem for gaining access to the Internet and having a function of 
interactive information exchange".
1059 
7.845  The complainants  distinguish between the terms appearing before the colon ("Set top boxes 
which have a communication function:"), and those after the colon ("a microprocessor-based device 
incorporating a modem for gaining access to the Internet, and having a function of interactive 
information exchange").  The United States  and Japan  argues that a device having the three 
characteristics appearing after the colon is a set top box with a communication function.1060  Chinese 
Taipei  notes that only the words before the colon were  marked in bold, as the description originally 
appeared in Attachment B of the ITA, which it argu es, suggests that "negotiators of the ITA intended 
to stress the words 'set top boxes which have a communication function" over the rest of the text.1061  
According to Chinese Taipei, the co lon "breaks the sentence" into tw o parts, wherein the product is 
identified before the colon, while the terms after the colon describe "a type of device ... that is able to 
perform a communication function".  Chinese Taipei argues that the terms after the colon provide 
context to interpret the terms before the colon,  though it argues the conclusion would be the same 
whether treated as context or otherwise, namely, th at the addition of functions or features would not 
preclude a set top box from falling within the concession.1062  If the concession contains no limitation, 
they argue, the concession does not lim it the type of functionality.   
7.846  The European Communities  argues that the narrative description must be considered in its 
entirety, and not divided into pieces.1063  In its view, the text which follows after the colon is used to 
identify or explain the text before the colon, and accordingly, the two parts cannot be read in 
separation.1064  Thus, it considers "set top boxes which have a communication function" are identified 
after the colon as a specific type of "device" th at is i) microprocessor-based, ii) incorporating a 
modem for gaining access to the Internet and iii) having a function of interactive information 
exchange.1065  In its view, these three aspects do not co nstitute "minimal requirements" and endless 
additional features or technical elements should not be assumed when considering the definition of a  
set top box which has a communication function.1066  The European Communiti es argues that it is not 
feasible to ignore the main versus an ancillary func tion, in determining whether a product qualifies as 
a set top box within the meaning of the narrative description.1067   
7.847  The Panel  notes that the narrative description at issue contains 29 terms, many of which have 
been discussed by the parties.  The main questi ons before the Panel are whether the concession for 
                                                      
1059 Exhibit US-7. 
1060 United States' first written submission, para. 92 ; Japan's first written submission, para. 373. 
1061 Chinese Taipei's first written submission, para. 384, fn. 196. 
1062 Chinese Taipei's first written submission, para. 403. 
1063 European Communities' first written submission, para. 211. 
1064 European Communities' first written submission, para. 212. 
1065 European Communities' first written submission, para. 213. 
1066 European Communities' first written submission, paras. 214, 218.  The European Communities 
qualifies the complainants as "saying that a set top box which has a communication function is the 
communication function":  "STB + communication function = (1) + (2) + (3) where (1) + (2) + (3) would be the 
defining elements … of the communication function" (European Communities' first written submission, para. 218). 
1067 European Communities' comments on complainants' responses to Panel question No. 146. WT/DS375/R 
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  "set top boxes which have a communication function" covers electronic devices that achieve an 
interactive communication function via WLAN, ISDN or Ethernet, and/or whether the concession 
covers those devices containing recording functiona lity, such as a hard drive or DVD drive, in 
addition to an interactive communication function.  Considering the complainants' arguments, and the 
focus of their complaints in these two respects, we focus our analysis on those terms of the concession 
that are central to addressing the matters before us, in their relevant context and in light of the object 
and purpose.  The Panel will also consider the Eu ropean Communities' argument that the concession 
must be considered in its entirety.  At the outset , the Panel considers it helpful to begin with an 
assessment of the opening terms appearing in th e concession, which indicate that the concession 
concerns "Set top boxes", in particular, those "which have a communication function". 
The meaning of the terms "set top boxes which have a communication function"
 
The meaning of the terms "set top box" 
Arguments of the parties 
7.848  The complainants  submit technical definitions of the term "set top boxes".  Japan  and 
Chinese Taipei  argue that the term "set top box" is a high-tech neologism – i.e., a new word or 
expression – with no precise definition in ordinary dictionaries.1068  T h e  United States  and Japan 
describe a set top box as a microprocessor-based elec tronic apparatus that incorporates a modem to 
connect to a communication channel, such as a phone, ISDN or cable television line, and produces output on a conventional television screen, adding that set top boxes "vary greatly in their 
complexity".  They argue that set top boxes often en able a television set to receive and decode digital 
television broadcasts and that set top boxes are of ten referred to as "cable boxes" or "receivers".
1069  
Also, set top boxes enable a user to connect to th e Internet and send and receive information – thus 
engaging in "interactive information exchange".1070  According to Chinese Taipei, a "set top box" is "a 
device that interfaces a television set or computer " with "a network, enabling users to exchange 
information"1071 or to "a cable TV network, cable modem ne twork, or satellite TV dish and, perhaps, 
telephone network".1072  Chinese Taipei submits that a set top box may have a communication 
function for which its "purpose or intended role is the transmission or exchange of information, news, 
etc".1073 
7.849  The complainants define a "set top box" as follows: 
Source Referred to: Definition of "set top box" 
Informitv glossary, 
http://informitv.com/glossary/settopbox/
1074  "[r]eceiver device that processes an incoming signal 
from a satellite dish, aerial, cable, network or 
telephone line" 
                                                      
1068 Japan's first written submission, para. 377; Chinese Taipei's first written submission, paras. 389-
390. 
1069 United States' first written submission, para. 42; United States' second written submission, para. 37. 
1070 United States' first written submission, para. 42 ; Japan's first written submission, para. 345. 
1071 Chinese Taipei's first written submission, para. 400. 
1072 Chinese Taipei's first written submission, para. 401. 
1073 Chinese Taipei's first written submission, para. 401. 
1074 United States' first written submission, para. 42 , fn. 45, (Exhibit US-22); Japan's first written 
submission, para. 344, fn. 145, (Exhibit JPN-11).  WT/DS375/R 
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  Source Referred to: Definition of "set top box" 
ITV Dictionary, 
http://www.itvdictionary.com (Exhibit US-23)
1075 "A set-top box (STB) is a device that connects to an 
external signal source and decodes that signal into content that can be presented on a display unit such as a TV." 
Newton's Telecom Dictionary (10th ed. 
1996), p. 1041 (Exhibit US-24)1076 "The electronics box which sits on top of your TV, 
connecting it to your incoming CATV signal and 
your TV's incoming coaxial cable.  Set-tops vary greatly in their complexity with older models merely translating the frequency recei ved off the cable into a 
frequency suitable for the television receiver while newer models can be addressable with a unique 
identify much like a telephone.  That identify can be 
addressed from the cable head end.  This allows the 
CATV operator to turn individual channels on and off, such as pay channels" 
Annabel Z. Dodd, The Essential Guide to Telecommunications (3rd ed. 2001), p. 308
1077 "Digital set top boxes are available to take advantage 
of the two-way capability of digital cable TV and satellite TV." 
Yourdictionary.com , 
http://www.yourdictionary.com/set-top-
box, visited on 30 October 20081078 "a small computing device that interfaces a television 
(TV) set or computer to a cable TV (CATV) 
network, cable modem network, or satellite TV dish 
and, perhaps, telephone ne twork.  A set-top box is 
responsible for functions such as decoding digital TV signals for display on an analogue TV set, compression and decompression, buffering, security 
management, and variou s signalling and control 
communications." 
Foldoc, Free Online Dictionary of 
Computing , 
http://foldoc.org/index.cgi?query=set+to
p+box , visited on 30 October 20081079 "Any electronic device designed to produce output 
on a conventional television set (on top of which it nominally sits) and connected to some other communication channels such as telephone, ISDN, optical fibre, or cable. The STB usually runs 
software to allow the user  to interact with the 
programmes shown on the television in some way." 
                                                      
1075 United States' first written submission, para. 42 , fn. 45, (Exhibit US-23); Japan's first written 
submission, para. 344, fn. 145, (Exhibit JPN-11). 
1076 United States' first written submission, para. 42, fns. 46-47, (Exhibit US- 24); Japan's first written 
submission, para. 344, fns. 146-147. 
1077 United States' first written submission, para. 42 , fn. 48, (Exhibit US-25); Japan's first written 
submission, para. 344, fn. 148, (Exhibit JPN-11). 
1078 Chinese Taipei's first written submission, paras. 397, fn. 200. 
1079 Chinese Taipei's first written submission, paras. 398, fn. 201. WT/DS375/R 
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  Source Referred to: Definition of "set top box" 
SearchNetworking.com , 
http://searchnetworking.techtarget.com/s
Definition/0,,sid7_gci212971,00.html , 
visited on 30 October 20081080 "A set-top box is a device that enables a television 
set to become a user interfa ce to the Internet and also 
enables a television set to receive and decode digital television (DTV) broadcasts. DTV set-top boxes are 
sometimes called receivers. A set-top box is 
necessary to television viewers who wish to use their current analogue television sets to receive digital broadcasts." 
 7.850  The European Communities  argues that there is no universa lly applicable definition of a 
"set top box". Rather, "set top box" covers "a very broad category of products, the only common 
feature of which is that they have the form of a box and are placed close to a TV or a video monitor (for the use with that product for the purposes of ultimately reproducing television)".  The European 
Communities argues that a "great variety" of set top boxes exist today, not all of which have the same 
features
1081, including set top boxes that serve as satellite receivers to decode television 
programming.1082  However, the European Communities argues that the terms "which have a 
communication function" denote a particular type of set top box, i.e., those set top boxes that access the Internet directly thro ugh an incorporated modem.
1083  The advent of set top boxes incorporating 
both communication and video recording or reproducing functions resulted in what the European 
Communities calls a "new" product where the comm unication function is supplementary to the 
recording or reproducing function. 
Consideration by the Panel 
7.851  The parties agree on certain common elements, wh ich are supported by the various definitions 
and descriptions they provided.  In particular, the parties recognize that a "set top box" describes an 
apparatus or device that processes an incoming signa l from an external signal source in a manner that 
can be presented on a display unit, such as a vide o monitor or television set .  The parties seem to 
agree that the apparatus may not necessarily be d esigned to be "on top" of a television or video 
monitor.1084  Otherwise, many of the definitions acknowl edge that a set top box may handle one or 
several functionalities, including receiving and decoding television broadcasts, whether from a 
satellite, cable or Internet source; converting dig ital TV broadcasts to function on older analogue TV 
sets; enabling two-way interactive connectivity with  digital cable television broadcasts or via the 
Internet.  The complainants submit that set top boxes might also provide recording of digital video content.  While disagreeing with several other el ements, the European Communities accepts that the 
definition of a set top box encompasses "a very broad category of products, the only common feature 
of which is that they have the form of a box and are placed close to a TV or a video monitor (for the 
use with that product for the purposes of ultimately reproducing television)".
1085  Furthermore, the 
European Communities seems to ac cept that an apparatus having a recording function may still be 
considered a set top box in case such  recording function is "ancillary".1086   
                                                      
1080 Chinese Taipei's first written submission, paras. 399, fn. 202. 
1081 European Communities' response to Panel question No.69 (referring to Exhibit US-23). 
1082 Exhibit EC-35. 
1083 European Communities' response to Panel question Nos. 69 and 78. 
1084 European Communities' response to Panel question No.69. 
1085 European Communities' response to Panel question No.69. 
1086 European Communities' response to Panel question No. 23. In this respect, the European 
Communities considers that products which are currently in the market could, with some simplification, be  WT/DS375/R 
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  7.852  In light of the broad array of functionalities c ontemplated by set top boxes, we agree with the 
European Communities that the u se of the terms "which have a communication function" may limit 
the particular type of set top box that is covere d under the concession.  We  will accordingly consider 
these terms, as well as the relevance of the remaining terms in the entire text of the concession.  In 
light of the complainants' focus on recording features and certain technologies that enable 
connectivity, we consider that it is not necessary to  assess all of the various possible functions a set 
top box could perform.   
The terms "which have a communication function" 
7.853  Japan argues that the ordinary sense of the phrase "which have a communication function" 
confirms that the scope of the EC concession is broad.
1087  We recall our conclusion above that the 
complainants' reference to the term "with" was ei ther intended to paraphrase the concession, or 
otherwise, the United States used the term in refe rence to its separate claim in connection with the 
European Communities' 2000 notification of tariff it em number 8528 71 13 in the Annex to the EC 
Schedule.1088  Accordingly, we see no need to consider the term here. 
Arguments of the parties 
7.854  The complainants  argue that the description contains the terms "which have" and does not 
include the terms "which have only" or "which have solely ".  Therefore, in their view the phrase 
"which have" does not limit the concession to set top boxes that are solely comprised of the three 
characteristics enumerated afte r the colon in the concession.1089  The complainants argue that such a 
reading would impute into the EC Schedule words that are not there.  Had the drafters intended to 
limit the concession, the complainants argue that the term "only" or its equivalent would have been 
included.1090  In the absence of additional words, Japan  argues that set top boxes with other functions 
are covered as well.1091 
7.855  Japan and Chinese Taipei  additionally argue that the indefinite article "a", defined as "[o]ne, 
some, any"1092 indicates that ITA participants intended to c over a broad array of set top boxes.   Japan 
argues that the term "a" indicates that parties inte nded to cover set top boxes which may perform not 
only a communication function but also other set top boxes which perform a function in addition to  a 
communication function.1093  Chinese Taipei argues that the use of the term "a" indicates coverage of 
set top boxes which perform any type of communication function, not a specific type.1094   
                                                                                                                                                                     
divided into the following three categories: 1) set top boxes of the type of digital video recorders with an 
ancillary communication function (such as those in Exhibi t EC-44), 2) the "Internet on TV" set top boxes whose 
main function is to communicate (such as those in Exhibit EC-46), or set top boxes of the type that would be 
classifiable in heading 8528, i.e. se t top boxes which perform the function of reception apparatu s for television 
and whose communication function is somehow more limited (and which have no or even a small hard disk drive). 
1087 Japan's first written submission, para. 380. 
1088 See paras 7.788-7.795 above. 
1089 United States' second written subm ission, para. 39; Japan's first written submission,  para. 386; 
Chinese Taipei's first written submission, para. 394. 
1090 United States' response to Panel question No. 80; Chinese Taipei's first written submission, 
para. 394. 
1091 Japan's first written submission, para. 383. 
1092 The Shorter Oxford Dictionary (1993), p. 1. 
1093 Japan's first written submission, para. 382. 
1094 Chinese Taipei's first written submission, paras. 393. WT/DS375/R 
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  7.856  Finally, Japan and Chinese  Taipei additionally define the term "communication" as "[t]he 
action of communicating heat, feeling, motion, etc.; esp. the transmission or exchange of information, 
news, etc."
1095; and the term "function" as "[t]he activity pr oper or natural to a person or thing; the 
purpose or intended role of a person or thing; an office, duty, employment, or calling. Also, a 
particular activity or operation (among several) …"1096  Based on these definitions, Japan argues that 
set top boxes with a "communication function" ar e those whose purpose or intended role is the 
transmission or exchange of information, without constraining the type of information that can be 
exchanged.  Japan argues further that the term "function" conveys "the notion of a single function 
among several functions, in no way excluding other functions".1097  Chinese Taipei argues that the 
terms "communication" and "function" indicate that set top boxes with a communication function are those that have an activity or operation of tran smission or exchange of information, news, etc.
1098 
7.857  The European Communities  argues that the term "which" as a relative noun serves the 
purpose of "introducing a clause defining or restrict ing the antecedent, esp. a clause essential to the 
identification of the antecedent".1099  Accordingly, the European Communities argues that "which 
have a communication function" defi nes or restricts the meaning of the antecedent term "set top 
boxes".  When considered in combination with the use of a colon, the European Communities argues 
that it should be understood that not all set top boxes are defined but merely certain kinds of  set top 
boxes, in particular those with a communication function.1100  The European Communities is of the 
view that, when appraising the objective characteris tics of an apparatus for purposes of classification, 
it is possible that the prevalence of a recording function over other functions will lead to the 
conclusion that an apparatus is a "video recorder" rather than a "set top box".1101  The European 
Communities has not assessed the meaning of the term "a" in isolation.  
Consideration by the Panel 
7.858  The European Communities provides a definition of "which" as to "introduc[e] a clause 
defining or restricting the antecedent".  The term  "which" followed by "communication function" may 
thus be used to  restrict  the antecedent term "set top boxes", as the European Communities suggests.  
However, the term "which" is also defined as "used  as a function word to introduce a non-restrictive 
relative clause and to modify a noun in that clause and to refer together with that noun to a word or 
word group in a preceding clause or to an entir e preceding clause or sentence or longer unit of 
discourse".1102   Therefore, rather than restricting the term "set top boxes" the term "which have a 
communication function" can also be used to define  "set top boxes".  Thus, this definition confirms to 
us that "which", considered as it appears in the narrative description, cannot necessarily be assumed to 
limit the breadth of coverage of the concession to set top boxes which only have a communication 
function.  Accordingly, we will consider the re maining terms in the c oncession and any relevant 
context thereafter to inform our inte rpretation of the scope of coverage. 
                                                      
1095 The Shorter Oxford Dictionary (1993), p. 466. 
1096 The Shorter Oxford Dictionary (1993), p. 1056. 
1097 Japan's first written submission, para. 381. 
1098 Chinese Taipei's first written submission, para. 391. 
1099 European Communities' first written subm ission, para. 215 (referring to The Shorter Oxford 
Dictionary (1993), p. 3667 (Exhibit EC-31)). 
1100 European Communities' first written submission, para. 216. 
1101 European Communities' response to Panel questions Nos. 23 and 89.  Regarding the European 
Communities' argument that the prevalence of a recording function may lead to the conclusion that a device is not a "set top box", see United States' second written submission, para. 37. 
1102 Merriam-Webster  Online Dictionary (http://www.merriam-webster.com/dictionary/which).  WT/DS375/R 
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  7.859  The definition of the terms "communication" and "function" provided by Japan and Chinese 
Taipei support the view that a communication func tion refers to the transmission or exchange of 
information as a capability or operation of a set top box. Generally, the meaning of these terms are not 
in dispute to the extent that the parties agree that communication is through access to the Internet and 
is interactive as opposed to unidirectional (these aspec ts are discussed in further detail in below).   
7.860  Although the Panel agrees that the narrative d escription covers set top boxes which have a 
communication function in addition to other functi ons, we would note that the concession does not 
cover all multifunction products wh ich may incorporate in them a set top box with a communication 
function.  For a product to be covered by the conc ession it must be a "set top box", an apparatus or 
device that processes an incoming signal from an external signal source in a manner that can be 
presented on a display unit, such as a video monitor or television set. This apparatus need not be 
designed to be placed on top of the display un it, and may handle one or several functionalities, 
including: receiving and decoding television broadcast s, whether from a satellite, cable or Internet 
source; converting digital TV br oadcasts to function on older an alogue TV sets; enabling two-way 
interactive connectivity with digita l cable television broadcasts or via the Internet; or even recording 
of digital video content. Therefore, if through the inclusion of additional features or incorporating it into another product, an apparatus may no longer be described as, in essence,  a "set top box which 
ha[s] a communication function" it would not be covered by the concession. 
7.861  Accordingly, based on our preliminary assessment  of the terms "set top boxes which have a 
communication function", we conclude that the term s "which have" in isolation do not necessarily 
limit the breadth of coverage of the concession to set top boxes which only have a communication 
function. However, we also find that the coverage  of the concession was not intended to extend to 
devices which have set top boxes incorporated into th em along with other functions in a way that they 
may no longer be described as, in essence, a "set top box which ha[s] a communication function".  In 
other words, we determined that the concession covers set top boxes which have a communication 
function, but not necessarily only a communication function. In addition, the Panel notes that while 
"which have" does not necessarily imply an exclusive functionality, it is clear that the drafters chose 
to emphasize functionality, and a communication func tion in particular, in defining this narrative 
product description. We will return to this below.
1103  Before addressing the words that appear after 
the colon, we address briefly the relevance of the use of a colon in the concession. 
The relevance of the colon to an unde rstanding of the terms in the concession 
Arguments of the parties 
7.862   Japan  and Chinese Taipei  consider the relevance of the u se of the colon in their assessment 
of the ordinary meaning of the concession.  In pa rticular, Japan argues that a device having the three 
characteristics appearing after the colon is a set top box with a communication function.1104  Chinese 
Taipei argues that the colon "breaks the sentence" into two parts, wherein the product is identified 
before the colon, and "a type of device (STB) th at is able to perform a communication function is 
described" after the colon.  In other words, acco rding to Chinese Taipei, the terms after the colon 
merely provide for an example of a set top box which has a communication function. 
7.863  The European Communities  argues that the use of a colon divides the text into two parts: 
"Set top boxes which have a communication function", and "a microprocessor-based device 
incorporating a modem for gaining access to the Internet, and having a function of interactive 
                                                      
1103 See paragraph 7.883 et seq . below. 
1104 Japan's first written submission, para. 373. WT/DS375/R 
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  information exchange".  In its view, the text whic h follows after the colon is used to identify or 
explain the text before the colon, which requires not reading the two parts in absolute separation.
1105 
Consideration by the Panel 
7.864  The Oxford Guide to English Usage  explains that one function of a colon is to "[l]ink[] two 
grammatically complete clauses, but mark[] a step forward, from introduction to main theme, from 
cause to effect, or from premise to conclusion".1106 
7.865  It is unquestionable that the colon provides a di vision between the antecedent text "Set top 
boxes which have a communication function", and that  which follows it.  A "link" or relationship 
between these clauses is implicit si nce the full text constitutes the con cession at issue.  Thus, the terms 
before the colon cannot be understood in isolatio n from the rest.  Rather, all the terms together 
determine the concession.  The text following th e colon appears to inform and expand upon the 
description provided by the antecedent text "Set top boxes which have a communication function".  
Such a set top box is "microprocessor-based", and further "incorporat[es] a modem for gaining access 
to the Internet, and [has] a function of interactiv e information exchange".  What remains is to 
determine the ordinary meaning of "a micropr ocessor-based device incorporating a modem for 
gaining access to the Internet, and having a function of interactive information exchange", which 
informs the meaning of "Set top boxes which have a communication function". 
Textual analysis of the phrase "a microprocessor-based device incorporating a 
modem for gaining access to the Internet, and having a function of interactive 
information exchange" 
7.866  The parties' arguments centre on the significance of "incorporating a modem", the description 
"for gaining access to the Internet" and the releva nce of "interactive information exchange".  The 
United States  and Japan  define the term "microprocessor" as "[a]n electronic circuit, usually on a 
single chip, which performs arithmetic, logic and cont rol operations, with the assistance of internal 
memory".1107  However, they do not consider the language  "a microprocessor-based device" to restrict 
the broad scope of the meaning of the concession.1108  T h e  European Communities  has not 
commented on the significance of these terms for inte rpretation of the overall concession.  The parties 
do not dispute that the apparatus at issue are "mic roprocessor-based" and neither does the Panel.  Set 
top boxes falling under the concession must thus be  "microprocessor-based".  The Panel will now 
consider the remaining terms, in particular those highlighted by the parties.  
The terms "incorporating a modem" 
Arguments of the parties 
7.867  The complainants  define "incorporate" as "1. combine or unite into one body or uniform 
substance; mix together. 2. Put (one thing) in or  into another to form one whole; include, absorb."1109  
They argue that, in the context of the definition of set top box, "incorporating" signifies that the 
                                                      
1105 See para. 7.846 above; European Communi ties' first written submission, para. 212. 
1106 The Oxford Guide to English Usage , Oxford University Press, 2d edition, 1994, p. 237.  In 
addition, The Oxford Guide to English Usage  explains that a colon may also be used to introduce a list of items 
or otherwise to introduce speech or a quotation in an "especially formal and emphatic way". (p. 237). 
1107 United States' first written submission, para. 94 (Exhibit US-63); Japan's first written submission, 
paras. 379-380 (referring to Newton's Telecom Dictionary  (10th ed. 1996), p. 731 (Exhibit JPN-11)). 
1108 Japan's first written submission, paras. 379-380. 
1109 The Shorter Oxford Dictionary (1993), p. 1342.  WT/DS375/R 
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  device must itself contain a modem.
1110  Japan  notes the use of the term "incorporating" in other 
provisions of the HS1111, and argues that these examples confirm that the term "incorporating" is used 
to mean that "something is included or mounted in internal space of a frame or a base in a housing of 
a machine, to be fitted together to form a whole".1112 
7.868  The European Communities  agrees that "incorporating" means that a modem must be 
included in the same housing.1113  Based on this definition, the Eu ropean Communities argues that set 
top boxes that cannot connect to the Internet wit hout assistance from an external modem, do not meet 
the requirement of incorporating a modem for gaini ng access to the Internet and providing interactive 
information exchange.1114   
7.869  With respect to the term "modem" the complainants  argue that it should be interpreted 
broadly to include a wide array of technologies that en able a set top box to gain access to the internet.  
The complainants refer to the following definitions of the term "modem": 
Source Referred to: Definition of "modem" 
IEEE Standard Dictionary of 
Electrical and Electronics 
Terms (6th ed. 1996), p. 6601115 "[a] contraction of MOdulator-DEModulator, an equipment that 
connects data terminal equipment to a communication line" 
Newton's Telecom Dictionary  
(2004, 20th ed.), p. 5321116  "The term 'modem' also is applied (and correctly so, in the purely 
technical sense) to ISDN TAs (Terminal Adapters), ADSL TUs (Terminating Units), line drivers and short-haul modems" 
The Shorter Oxford Dictionary 
(1993),  p. 13421117 "A combined modulator and demodulator, used esp. to connect a 
computer to a telephone line, for converting digital electrical signals to analogue or audio one and vice versa."
  
 7.870  Based on these definitions, the complainants ar gue that the term "modem" does not require 
that a device perform digital-to-analogue signal conversion via the sending and receiving of audible 
tones transferred over telephone lines.
1118 Neither must a device enable any form of "direct" access to 
an Internet Service Provider ("ISP"), Internet Exchange ("IX") or Network Access Point ("NAP" or 
                                                      
1110 Complainants' responses to Panel question No. 76; Chinese Taipei's first written submission, 
paras. 410-415. 
1111 For example, Japan refers to the concessions "Indicator panels incorporating liquid crystal devices 
(LCD) or light emitting diodes (LED)" in HS code 8531 20, "Wrist-watches, electrically operated, whether or 
not incorporating a stop-watch facility" in HS heading 9102 10 and the reference "This Chapter does not cover: 
(g) Pumps incorporating measuring devices, of heading 84.13…" in Note 1 to Chapter 90 of the HS. (Japan's response to Panel question No. 76).   
1112 Japan's response to Panel question No. 76. 
1113 European Communities' response to Panel question No. 76. 
1114 European Communities' response to Panel question No. 73. 
1115 United States' first written submission, para. 10 0, fn. 145 (Exhibit US-67); Japan's first written 
submission, para. 390, fn. 180 (Exhibit JPN-11); Chinese Taipei's first written submission, para. 418. 
1116 Japan's first written submission, para. 390, fn. 181; Chinese Taipei's first written submission, 
para. 419, fn. 212. 
1117 Chinese Taipei's first written submission, para. 410. 
1118 United States' comments on European Communities' response to Panel question Nos. 151, 152, and 
153. WT/DS375/R 
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  "peering point"), in order to qualify as a "modem" within the concession.
1119  Chinese Taipei argues 
that the term "modem" is a generic term used to  describe an apparatus that accesses and interfaces 
with the Internet.1120  Japan and Chinese Taipei argue that th e use of the words "used esp." in the 
Shorter Oxford Dictionary definition of modem above, demonstrates that the definition is not "self-
restrictive", and that the reference "connect a co mputer to a telephone line" is an example only. 1121 
7.871  The United States and Japan define "modulate"  as "to convert voice or data signal for 
transmission over a communications network"1122 and "demodulate" as "to receive signals transmitted 
over a communications computer; and to convert them into electrical pulses that can serve as inputs to 
a computer system".1123 The United States and Japan further define "pulse modulation" as "[t]he 
deployment of high-speed networks such as the In tegrated Service Digital Network (ISDN) in many 
parts of the world has also relied heavily on PCM technology".1124  The complainants argue that 
dictionaries recognize that an array of technologies,  including specifically those based on ISDN, and 
LAN, as well as digital-to-analogue telephone-line b ased modems and cable modems were available 
for gaining access to the Internet at  the time the ITA was negotiated.1125  The United States argues that 
the fact that ISDN technology existe d at the time of the concession, for instance, supports the view 
that the concession's coverage was intended to be br oad. Otherwise, the United States argues, the text 
of the concession would have been drafted to re flect a limitation to a certain type of modem.1126   
7.872  The European Communities  defines a "modem" as "a combined modulator and 
demodulator, used esp. to connect a computer to  a telephone line, for converting digital electrical 
signals to analogue or audio ones and vice versa".1127  The European Communities acknowledges that 
technologies other than digital-to-analogue tele phone-based modems existed at the time of the 
negotiations, including ISDN, which it submits wa s developed in the mid-1970s through the 1990s, 
and Asymmetrical Digital Subscriber Line ("AD SL") technology, which it submits, was developed in 
                                                      
1119 United States' second written submission, paras. 51 and 54; United States' comments on European 
Communities' response to Panel question Nos. 149 and 150. The United States refers to the following sources: Jonathan E. Nuechterlein & Philip J. Weiser, Digital Crossroads: American Telecommunications Policy in the 
Internet Age 131-32 (2005) (Exhibit US-126); Newton's Telecom Dictionary 525, 629, 708 (24th Ed. 2008) 
(Exhibit US-127). 
1120 Chinese Taipei's first written submission, para. 420. 
1121 Japan's second written submission, para. 218; Chinese Taipei's second written submission, 
para. 239. 
1122 United States' first written submission, para. 101,  fn. 147; Japan's first written submission, para. 
391, fn. 182 (both citing the IEEE Standard Dictionary of Electrical and Electronics Terms (6th ed. 1996), p. 703 and IEEE 100: The Authoritative Dictionary of IEEE Standard Terms (2000), p. 703). (Exhibit US-70) 
(Exhibit JPN-11). 
1123 United States' first written submission para. 101, fn. 147 (referring to IEEE Standard Dictionary of 
Electrical and Electronics Terms (6th ed. 1996), p. 270 (Exhibit US-70)); Japan's first written submission, 
para. 391, fn. 182  (referring to IEEE 100: The Authoritative Dictionary of IEEE Standard Terms (2000), p. 287. 
(Exhibit JPN-11)). 
1124 United States' first written submission, para. 101 , fn. 147 (referring to Hermann J. Helgert, 
AccessScience@McGraw-Hill, http://www.accessscience. com (Exhibit US-71)); Japan's first written 
submission, para. 391, fn. 182 (referring to McGraw  Hill Encyclopaedia of Science and Technology, 5th ed. 
(Exhibit JPN-11)). 
1125 Complainants' response to Panel question No . 70; see, e.g., Exhibits US-67-68, US-72. 
1126 United States' second written submission, para. 55. 
1127 European Communities' first oral statement, para. 44 (referring to the Shorter Oxford Dictionary 
(1993), p. 1803 (Exhibit EC-31)).  WT/DS375/R 
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  1989 and allows for transfer of data over telephone  lines at frequencies different from those used by 
telephone voice calls, allowing for simu ltaneous voice and data transfer.
1128   
7.873  The European Communities argues that modems must fulfil two conditions to be properly 
considered as a "modem": first, the apparatus h as to perform digital-to-analogue modulation and 
demodulation, and second, modulation must occu r for the purposes of "direct" transmission and 
communication with the Internet.  The European Communities submits that a "direct" connection to 
the Internet is effectuated through the server of th e relevant Internet Service Provider ("ISP") to the 
Internet.1129  The European Communities argues that di gital-to-analogue telephone-based modems and 
cable modems fulfil both conditions. The European Communities submits that cable modems provide 
a direct connection1130 and perform digital-to-analogue modul ation and reverse demodulation similar 
to traditional modems, albeit on different non-tele phone networks and a hi gher frequency without 
audible tone conversion.1131   But, in its view, devices based on ISDN, WLAN or Ethernet technology 
do not meet these conditions and thus do not qua lify as "modems" under the concession at issue.  
7.874  The European Communities submits that there is  no basis in the terms of the concession to 
conclude that negotiators relied on highly technical terms, such as "pulse code modulation" or "pulse 
amplitude modulation" to either include or exclude  products from the concession.  Rather it considers 
the common understanding of the term "modem" was relied on.1132  The European Communities 
argues that in other aspects, Attachment B relied on hi ghly technical and specific  descriptions if they 
wanted to ensure that a particular product was covered.1133   
7.875  Additionally, the European Communities recalls statements by the United States as a 
complainant in the dispute EC – Computer Equipment , which, it argues, coincided "exactly" with the 
time of the negotiation and conclusion of the ITA.1134  The European Communities submits that the 
United States argued factually that LANs, principally including Ethernet, Token Ring and fibre distributed data interface technologies, were expressly not "modems".
1135 
                                                      
1128 European Communities' response to Panel question No. 70 (referring to 
http://www.iptegrity.com/index/php?option=com_conten t&task=view&id=30&Itemid=42 (Exhibit EC-81)). 
1129 European Communities' response to Panel question No. 153;  European Communities comments on 
complainants' response to Panel question No. 153. 
1130 European Communities' response to Panel question Nos. 149 and 150. 
1131 European Communities' comments on complainants' responses to Panel question No. 150. 
1132 European Communities' second written submission, paras. 231-232. 
1133 European Communities' second written submission, paras. 233-234. 
1134 European Communities' second oral statement,  para. 73 (referring to United States' first written 
submission in that dispute, paras. 28-29 and to the United States second written submission in that case, 
para. 31). 
1135 European Communities' second oral statement,  para. 75 (referring to United States' first written 
submission in that dispute, paras. 28-29 and to the United States' second written submission in that case, 
para. 31.  In particular, the European Communities cites the following statement by the United States in that 
dispute : 
"The EC mistakenly includes 'multiplexers' and 'modems' in its description of LAN 
equipment, suggesting that these, too, are LAN products, which they are not.  'Modems' are 
combined modulators-demodulators, which operate to convert a signal in order to achieve compatibility in a telecommunications environment.  Modems are not LAN equipment, and, 
indeed, have historically been classified and been accorded tariff treatment as 
telecommunications apparatus by the EC and other U.S. trading partners".    
United States second written submission in that case, para. 31. WT/DS375/R 
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  Consideration by the Panel 
7.876  The parties agree that the term "incorporati ng" in the concession means that a set top box 
must physically contain a "modem" in order to fall w ithin the scope of the concession.  The definition 
of incorporate – "combine or unite into one body"
1136 – supports this view.  The heart of the parties' 
disagreement, however, arises from the meaning of "modem" in the concession.  The complainants 
argue that ISDN, WLAN or Ethernet devices are such modems allowing access to the Internet and 
that set top boxes incorporating such in-built devi ces thus fall within the concession.  The European 
Communities, however, disagrees arguing that the term  "modem" only covers products that fit within 
the common understanding of the term at the time of the ITA and that modems must directly connect 
to the Internet and perform digital-to-analogue modulation and reverse demodulation to satisfy the 
terms of the concession. Thus, the issue between  the parties concerns, not the meaning of 
incorporating – which the parties agree on - but  the meaning of "modem" as it appears in the 
concession. 
7.877  The range of definitions discussed by the parties provide that the term "modem" is "a 
contraction of "Modulator-Demodulator", and is used  to connect "data terminal equipment" to a 
"communication line".1137  The Shorter Oxford states that a "modem" is used especially  to connect a 
computer to a telephone line, and converts digital signals to analogue ones.1138 (emphasis added).  The 
European Communities considers this  latter definition provides support for its contention that the term 
"modem" is limited to those devices that provide di gital-to-analogue signal co nversion, in particular 
via a telephone line.  The complainants  consider that the notion of "used esp." indicates that a device 
achieving a connection over a telephone line is only an  example of a modem, allowing for other types 
of devices. The complainants have cited at least one  other definition indicating that the term "modem" 
may refer to devices in addition to those handling digital-to-analogue conversion, for instance an 
ISDN terminal adapter device (i.e., an ISDN modem)  or an Asymmetric Digital Subscriber Line 
("ADSL") terminating unit.1139 
7.878  These definitions have evolved over time and refl ect that the term "modem" is not limited in 
its usage to refer to a particular device or equipm ent that converts digital to analogue signals over a 
standard telephone line.  The ordinary usage of th e term "modem" expanded w ith the advent of newer 
technologies developed to transfer data over a comm unication line.  In this respect, a telephone line-
based modulator and demodulator that converted digi tal to analogue signals represented an early type 
of "modem". However, evidence provided by th e complainants, including the aforementioned 
dictionary definitions, indicates that the term "modem"  has been used in referring to other devices that 
provided modulation and demodulatio n over different mediums and also potentially without digital-
to-analogue signal conversion. For instance, Newton's Telecom Dictionary  notes that the term 
"modem" is applicable to refer to ISDN termin al adapters (ISDN modems), which are equipment 
responsible for providing digital signal transfer  over a special type of digital telephone line.1140 
Evidence provided by the European Communities show s that terminal adapters used with ISDN 
                                                      
1136 The Shorter Oxford (1993), p. 1342. 
1137 IEEE Standard Dictionary of Electrical and Electronics Terms (6th ed. 1996), p. 660 (Exhibit 
US-67). 
1138 The Shorter Oxford (1993), p. 1342. 
1139 Newton's Telecom Dictionary  (2004, 20th ed.), pp. 532; see also Dictionary of Business Terms  
(3rd ed.). 
1140 Newton' Telecom Dictionary  (2004, 20th ed.), pp. 532; see also Dictionary of Business Terms  
(3rd ed.).  WT/DS375/R 
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  service are sometimes called modems.
1141 In addition, the European  Communities concedes (and the 
text of the amendment to the CNEN 2008/C 112/03 reflect s) that the term "modem" is used to refer to 
"cable modems" as well, which are in several ways  technologically distinct from telephone line-based 
modems, in terms of the medium used, frequency range and other parameters.1142   
7.879  It bears noting that the European Commun ities acknowledges that alternate technologies, 
including ISDN and ADSL either existed or were in development in advance of  the conclusion of ITA 
negotiations, though it does not concede that the term  "modem" is applicable to devices that operate 
based on these technologies.1143 
7.880  Given the foregoing, the plain meaning of the term "modem" can include devices other than 
those that convert a digital signal to analogue fo r purposes of information transfer over a telephone 
line.   We note the European Communities' argume nt that for a device to be a "modem" it must 
provide for a direct connection to an ISP (Internet  Service Provider).  However, we see no basis for 
this conclusion in the plain meaning of the term  modem.  We will however, consider whether the 
remaining terms of the concession further inform  our understanding of the terms "incorporating a 
modem".  In particular we will analyse whether the modifying phrase "for gaining access to the Internet" indicates that the direct connection to an ISP advocated by the European Communities is 
indeed required.  We will also examine whether the terms "and having a function of interactive 
information exchange" also inform our understanding of the particular type of modem covered by the 
concession.  
The terms "for gaining access to the Intern et, and having a function of interactive 
information exchange" 
Arguments of the parties 
7.881  The United States  and Chinese Taipei argue that the language surrounding the term 
"modem" as it appears in the Annex to the EC Schedule, in particular the terms "for gaining access to 
the Internet", provides support that a "modem" is not limited to a device that is telephone line-based 
and provides digital to analogue si gnal conversion.  The United States and Chinese Taipei argue that 
the term "communication function" is "broad", whic h supports the view that devices of any type that 
enable a set top box to gain access to the Inte rnet may qualify, including devices based on ISDN, 
WLAN or Ethernet technology.
1144  Chinese Taipei submits that what  is fundamental or "essential" is 
"that the device enables one to  gain access to the Internet".1145  Chinese Taipei notes that the definition 
of the term "gain" is "[o]btain, secure, or acquire  (esp. something desired or advantageous)".  The 
complainants additionally argue that devices of an y type that enable a set top box to perform 
interactive information exchange, in additi on to being microprocessor-based, fall under the 
concession.  Chinese Taipei submits that the term "i nteractive" means "1. Reciprocally active; acting 
upon or influencing each other. 2. Designating or pert aining to a computer terminal or system that 
allows a two-way flow of information between it and a user, responding to input from a user."; 
"information" means "2. Communication of the knowle dge of some fact or occurrence. 3. Knowledge 
or facts communicated about a particular subject, event, etc; intelligence, news."; and "exchange" 
                                                      
1141 See Exhibit EC-107, p. 5. The evidence provided by the European Communities indicates that a 
"modem" is not needed for operation on an ISDN service, which requires use of a terminal adaptor, which it is 
stated, "works much like a modem" (p. 15). 
1142 Newton's Telecom Dictionary , (2004, 20th ed.), p. 191 (Exhibit US-72). 
1143 See fn. 1127 above. 
1144 United States' first written submission, para. 102; Chinese Taipei's first written submission, 
para. 421. 
1145 Chinese Taipei's first written submission, para. 421. WT/DS375/R 
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  means, as a noun, "[t]he action, or an act, of reci procal giving and receiving", and as a verb, "Dispose 
of by exchange or barter; relinquish (something)".
1146 
7.882  The European Communities  submits that interactivity with in the concession refers to a two-
way communication process, in the case of set-top b oxes between the service provider and the client 
in which a message is related to the previous messages  exchanged.  This includes the ability to control 
video on demand or pay-TV, and Internet connectivity.1147  The European Communities submits that 
an incorporated modem component enables interactive exchange.   
Consideration by the Panel 
7.883  The term "modem" is followed by the phrase "for gaining access to the Internet, and having a 
function of interactive informati on exchange".  The meaning of the term "gain" provided by the 
complainants is not disputed by the Europ ean Communities, though the European Communities 
rejects the view that the phrase supports a broad inte rpretation of the meaning of the term "modem".  
In addition, the parties agree that the meaning of the term "interactiv e information exchange" refers to 
a requirement of a two-way communication process or "two-way flow of information".1148 
7.884  In our view, the phrase "for gaining access to the Internet, and having a f unction of interactive 
information exchange" informs the nature of the "c ommunication function" refe rred to in the language 
of the concession preceding the colon.  As we e xplained above, the plain words of the concession 
define a particular class or category of set top box by reference to function, i.e., those which have  a 
communication function. Emphasis is placed on func tionality, and in particular, a communication 
function. The language following the colon further in forms the nature of this communication function.  
Specifically, it is a communication function enabled through the ability to access the Internet in an 
interactive manner.  In our view, the incorporation of a modem fulfils the purpose of gaining Internet 
access, which in turn may enable in teractive information exchange.  In the Panel's view it is this 
functionality that is central to the product defin ition at issue. There is no express specification as to 
the nature or quality of Internet access, in terms of  speed, transfer rate, or whether limited or full 
access may be provided, in determining whether a device has a communication function.  
7.885  In light of the broad meaning that is imparted by the concession, with its emphasis on a 
"communication function", "gaining access to the In ternet" and enabling "interactive information 
exchange", we are of the view that function should guide an assessment of the scope of the concession, including the terms "incorporating a modem", as opposed to a narrow or detailed 
assessment of the technical properti es of the internal components of a set top box.  As the European 
Communities argues
1149, the concession does not contain detailed or highly technical terms, and we do 
not consider it appropriate to assume that drafters  intended to include or exclude products based on 
their technical design or makeup.  The drafters have  not, for example, elaborated extensively on the 
specific technical nature of a "modem".  Rather, as we state here, the concession in terms of its plain 
meaning emphasizes function.   
7.886  Accordingly, based on the plain meaning of the terms of the concession, we consider that, in 
order to constitute a set top box covered by the c oncession, the device must be microprocessor-based; 
                                                      
1146 Chinese Taipei's first written submission, paras. 410-415, (referring to the Shorter Oxford 
Dictionary (1993), p. 1811 (gain), p. 1406 (interactive), p. 1379 (information) and p. 886 (exchange). 
1147 European Communities' response to Panel question No. 74. 
1148 Chinese Taipei's first written submi ssion, paras. 410-415 (referring to the Shorter Oxford (1993), 
p. 1406); European Communities' response to Panel question No. 74. 
1149 European Communities' second written submission, paras. 231-232.  WT/DS375/R 
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  incorporate a "modem", and be capable of gainin g access to the Internet and handling two-way 
interactivity or information exchange .  We concluded that, in the cont ext of this concession, the term 
"modem" should not be interpreted in an overly narro w or technical sense, but should be informed by 
the clear emphasis on functionality. Accordingly, we found that devices that incorporate, or have built 
in, technologies that enable them to access the Internet and provide interactive information exchange 
may fall within the scope of the concession.  While  set top boxes available at the time of the ITA 
negotiations may have primarily incorporated mode ms that operate directly over a telephone line and 
provide digital-to-analogue si gnal conversion, both contempor ary and newer technologies are 
commonplace today and enable similar or identical func tionality.  In our view, to interpret otherwise, 
would exclude from coverage many set top boxes wh ich, in fact, have a communication function of 
the type contemplated in the concession. 
7.887  In reaching our preliminary findings on the mean ing of the terms of the concession, we have 
briefly addressed the issue of products available at  the time of the negotiation of the concession for 
"Set top boxes which have a communication function (...)".
1150  We will address further below the 
European Communities' arguments concerning the state of technology at the time the concessions 
were made, and its reference to what it asserts were  descriptions of "set top boxes" used during the 
negotiations. 
Preliminary conclusions on the textual anal ysis of the STBCs narrative description  
7.888  The Panel concludes that the term "set top box" generally describes an apparatus or device 
that processes an incoming signal from an external  signal source in a manner that can be presented on 
a display unit, such as a video monitor or television set.  This apparatus need not be designed to be 
placed on top of the display unit and may handle on e or several functionalities.  We recognized that, 
through the inclusion of additional features or inco rporation into another product, an apparatus may 
no longer be described as, in essence, a "set top box which ha[s] a communication function" and 
would not be covered by the concession. We c oncluded further that the terms of the STBCs 
concession in the Annex to the EC Schedule extends to any "set top box" that fulfils all of the 
following requirements:  is microprocessor-based; in corporates a "modem", and is capable of gaining 
access to the Internet and handling two-way interac tivity or information ex change.  We concluded 
that, in the context of this concession, the term  "modem" should not be interpreted in an overly 
narrow or technical sense, but should be info rmed by the clear emphasis on functionality. 
Accordingly, we found that devices that incorporate, or have built in, technologies that enable them to 
access the Internet and provide interactive inform ation exchange may fall within the scope of the 
concession.  We will now consider the terms of the STBCs narrative product description in their 
broader context. 
(iii) The terms of the STBCs narrative description in their context 
7.889  The complainants  have argued that other narrative descrip tions that appear in the Annex to 
the EC Schedule provide relevant context that fu rther supports their interpretation of the STBCs 
narrative descriptions.   
7.890  The European Communities  has referred to other parts of its Schedule, including 
descriptions in the tariff item numbers notified in connection with the FPDs narrative description, and 
the concessions in other ITA participants' WTO Sc hedules in support of their interpretation of the 
FPDs narrative description as it appears in the Annex to the EC Schedule. 
                                                      
1150 See paras. 7.871, 7.872 above. WT/DS375/R 
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  Other parts of the EC Schedule as context
 
7.891  The Panel recalls as the Appellate Body explained in EC – Chicken Cuts , that context in a 
Member's Schedule may include "other te rms" in the same heading or chapter.1151  We will consider 
the parties' arguments surrounding whether various elements found in the EC Schedule, including 
other descriptions in the Annex to the EC Schedul e, inform interpretation of the STBCs narrative 
description. 
The descriptions in the tariff item numbers 8517 50 90, 8517 80 90, 8525 20 99 and 
8528 12 91 in connection with the STBCs narrative description as context 
Arguments of the parties 
7.892  Japan and Chinese Taipei  argue that the tariff lines appearing in the Annex to the EC 
Schedule next to the description for STBCs – i.e., tariff item numbers 8517 50 90, 8517 80 90, 
8525 20 99 and 8528 12 91 – support their interp retation of the concession based on the ordinary 
meaning of the terms.  While considering that  these codes do not determine the scope of the 
concession at issue, Japan and Chinese Taipei submit that these codes provide relevant context to the 
extent that they indicate where the European Communities viewed ST BCs were classified at the time 
of implementation.1152   
7.893  Japan and Chinese Taipei note that HS1996 headin g 8517 covers "[e]lectrical apparatus for 
line telephony or line telegraphy, including  line telephone sets with cordless handsets and 
telecommunication apparatus for carrier-current  line systems or for digital line systems; 
videophones". Further, they note that tariff item number 8517 50 90 covers "Other apparatus, for 
carrier-current line systems or for digital line systems - Other" and that tariff item number 8517 80 90 covers "Other apparatus – Other".  Japan and Chin ese Taipei argue that none of the terms of these 
headings refer to the functions that may be perform ed by apparatuses classified under this heading and 
subheadings, or expressly or implicitly limit the func tions of products classified under them to one or 
more functions.  Japan and Chinese Taipei also argue that HS1996 headin g 8517 and tariff item 
numbers 8517 50 90 and 8517 80 90 do not refer to a sp ecific type of modem that would restrict the 
scope of the concession.
1153 
7.894  Japan and Chinese Taipei next note that HS 1996 heading 8525 cove rs "[t]ransmission 
apparatus for radio-telephony, radio-telegraphy, radio-broadcasting or television, whether or not 
incorporating reception apparatus or sound recordin g or reproducing apparatus; television cameras; 
still image video cameras and other video camera recorders".  Further, they note that HS1996 
subheading 8525 20 covers "trans mission apparatus incorporating reception apparatus". Japan and 
Chinese Taipei argue that the terms of this heading,  read together with the terms of heading 8525, 
make clear that apparatuses covered by this h eading fall under it regardless of whether they 
incorporate reception apparatus or sound recordin g or reproducing apparatus. Japan and Chinese 
Taipei note that HS1996 heading 8525 is divided into four main subheadings. Since the terms 
"recording" and "reproducing" are placed before the first semi-colon in the title of heading 8525, 
Japan and Chinese Taipei argue that recording and re producing applies to apparatus for all four main 
subheadings, including transmission apparatus for radio-telephony, radio-telegraphy, radio-
broadcasting or television.  Thus, they argue th at devices falling under subheading 8525 20, including 
                                                      
1151 See Appellate Body Report on EC – Chicken Cuts , para. 193. 
1152 Japan's first written submission, para. 394; Chinese Taipei's second written submission, para. 245. 
1153 Japan's first written submission, paras. 398- 400; Chinese Taipei's first written submission, 
paras. 426-431; Chinese Taipei's second oral statement, para. 52.  WT/DS375/R 
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  set top boxes which have a communication function, may perform more than one function and still be 
classifiable therein. Moreover, they argue that  the terms of HS1996 heading 8525 and subheading 
8525 20 do not require that transmission apparatus incorporating reception apparatus also incorporate 
a modem in order to be classifiable under that heading and subheading.
1154 
7.895  Japan notes that HS1996 heading 8528 covers "[ r]eception apparatus for television, whether 
or not incorporating radio-broadcast receivers or sound or video recording or reproducing apparatus; 
video monitors and video projectors".  Thus, it ar gues, whether or not a device incorporates video 
recording or reproduction is irrelevant for classifi cation under heading 8528.   Furthermore, Japan 
notes that HS1996 heading 8527 differentiates between "[o]ther radio-broadcast receivers, including 
apparatus capable of receiving also radio-telephony or radio-telegraphy: − − 8527 31 "[c]ombined 
with sound recording or re producing apparatus" and − − 8527 32 "[n]ot combined with sound 
recording or reproducing apparatus but combined  with a clock".  Similarly, Japan notes HS1996 
subheading 8528 12 relates to " − Reception apparatus for television, whether or not incorporating 
radio-broadcast receivers or sound or vi deo recording or reproducing apparatus: − − Colour" 
differentiates between " − − − Television projection equipment" and " − − − Apparatus incorporating a 
video recorder or reproducer".  In Japan's view, the separate treatment provided for in headings for 
products able to perform different functions would seem to indicate that where no such differentiated 
treatment exists, for instance in HS headings 8517 a nd 8525, apparatus able to perform more than one 
function should not be treated differently.1155 
7.896  Finally, Chinese Taipei submits that the f act that the European Communities did not 
implement the full concession for "set top boxes wh ich have a communication function" by including 
the same wording as appears in the Attachment B  description – i.e., "a microprocessor-based device 
incorporating a modem for gaining access to the internet, and having a function of interactive 
information exchange" – supports the view that this description is "but only one type of [STBC]" that 
is covered by the concession.1156  However, despite the fact that  the European Communities chose to 
implement the language appearing in the Attachment B description at the end of 2000, via the amendment of tariff item number 8528 21 91 to its Sc hedule, the overall contextual analysis is not 
affected, because, it argues, tariff item number 8528 21 91 must necessarily include what had been 
identified by the European Communitie s in the initial CN subheadings.
1157  
7.897  The United States  argues that the 2000 amendment to the EC Schedule – i.e., when the 
European Communities added tariff item number 8528 12 91 against the STBCs narrative description 
in the Annex to the EC Schedule  -  supports the view that the Eu ropean Communities agreed to a 
commitment which comprises not only "Set top boxes which have  a communication function", but 
also "Set top boxes with a communication function" (emphasis added).  Thus, it argues, this 
modification contradicts the view that the phrase "whi ch have" must be read to limit the concession to 
products that are solely comprised of the thr ee characteristics enumerat ed after the colon in 
Attachment B.1158  The United States argues that the 2000 amendment  establishes that STBCs with 
tuners were covered by the original d escription in the Annex to the EC Schedule , because the 
                                                      
1154 Japan's first written submission, paras. 401-404; Ja pan's response to Panel question No. 82; Chinese 
Taipei's first written submission , paras. 433-435; Chines e Taipei's response to Panel question No. 82; Chinese 
Taipei's second oral statement, para. 52. 
1155 Japan's first written submission, paras. 405-406. 
1156 Chinese Taipei's first written submission, para. 436. 
1157 Chinese Taipei's first written submission, para. 436. 
1158 United States' second written submission, para. 39. WT/DS375/R 
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  description of the tariff item number that was added (i.e., 8528 12 91) ac knowledges that products 
with tuners are covered within the concession.
1159 
7.898  The European Communities  argues that the three codes notified in the Annex to the EC 
Schedule  in 1997 shed light on what sort of products we re "understood to be covered by the narrative 
description".1160  In its view, tariff item numbers 8517 50 90, 8517 80 90, 8525 20 99 indicate a 
common feature of these codes is that they all pe rtain to modem devices, i.e. CN heading 8517 
concerns set top boxes incorporating wired mode ms, and heading 8525 concerns those incorporating 
"wireless modems".1161  The European Communities notes that it did not include HS1996 subheadings 
under 8521 which covers devices with recording functionality or initially include HS1996 heading 
8528 concerning devices with tuners.  In addition,  the European Communities submits that its 
inclusion of tariff item number 8528 12 91 in th e year 2000 "extended on its own motion the 
treatment available so far only for products meeti ng exactly the ITA definition to another and well 
defined category of products, even though these products were significantly different from those set 
forth in the ITA definition and, legally speaking, not covered by it."1162  I n  t h e  E u r o p e a n  
Communities' view, set top boxes equipped with a tuner "were not initially supposed to be covered by 
the ITA" because "the presence of a tuner chang es the nature of the apparatus and requires a 
classification in heading 8528, even if the product additionally incorporates a modem or other elements mentioned in narrative description."
1163 The European Communities submits it modified its 
schedule to provide for the duty-free treatment for tariff item number 8528 12 91 in the year 2000 
because the United States insisted  that set top boxes with a tuner should receive ITA treatment.1164  
The European Communities submits further that sin ce only Japan and Turkey joined them "in such a 
move", this means that "there was no broade r consensus among the ITA parties on this new 
classification"1165 and such notification "cannot be interpre ted to mean that the ITA definition has 
been relaxed or abandoned".1166   
7.899  In response to the argument by the United St ates, the European Communities argues that its 
concession only concerns "Set top boxes which have  a communication function", and that the 2000 
modification adding tariff item number 8528 12 91 do es not change the language of the concession.  
The European Communities argues that no particular  name or phrase used for describing and naming 
a product in the context of adopting a classification measure can be considered relevant for interpretation of the scope of a tariff concession formul ated at the WTO level.  At most, the European 
Communities considers that the STBCs narrative desc ription covered a specific category of products 
that, in addition to meeting the ot her requirements of the definition, are capable of receiving television 
signals.
1167 
Consideration by the Panel 
7.900  The STBCs narrative description a ppears in the Annex to the EC Schedule in connection with 
four tariff item numbers 8517 50 90, 8517 80 90, 8525 20 99 and 8528 12 91.  We recall from 
                                                      
1159 United States' second written submission, para. 41. 
1160 European Communities' first written submission, para. 239. 
1161 European Communities' first written submission, para. 241. 
1162 European Communities' first written submission, para. 251. 
1163 European Communities' first written submission, para. 248. 
1164 European Communities' first written submission, para. 249. 
1165 European Communities' first written submission, para. 250. 
1166 European Communities' first written submission, para. 251. 
1167 European Communities' second written submission, para. 80.  WT/DS375/R 
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  paragraph 7.420 that the European Communitie s notified the addition of tariff item number 
8528 12 91 on 1 October 2000.
1168   
7.901  the European Communities also notified the a ddition of this last code 8528 12 91 on 15 
December 2000, to its Schedule under HS1996 heading 8528 12 as follows: 
  Base rate Final rate Implementation 
8528 12 91 ------- Apparatus with a microprocessor-based 
device incorporating a modem for gaining access to the Internet, and having a function of 
interactive information exchange, capable of 
receiving television si gnals ("Set-top boxes 
with a communication function") New line 
 0.0 2000 
 
 
7.902  These changes took effect from 1 October 2000, and were certified on 19 March 2010.1169  
7.903  Whether this action represents an autonomous  liberalization effort, as the European 
Communities contends1170, or an indication of changes to classification of a product already 
understood to be covered under the narrative descrip tion, we see no reason for excluding the tariff 
item number that was added in 2000 for purposes of our contextual assessment of the meaning of the 
concession.   
7.904  The Panel  recalls its preliminary finding that the STBCs narrative description determines the 
scope of the concession, no matter where classified in the EC Schedule, and that the tariff item numbers appearing alongside the product descriptions do not have the effect of controlling the scope 
of coverage arising from the ordinary  meaning of the product descriptions.
1171  Aside from their 
reference in the Annex to the EC Schedule, these ta riff item numbers also appear elsewhere in the EC 
Schedule together with their associated six-digit HS subheading descriptions.   
7.905  As we noted above, the tariff item numbers address a different issue: they assist in the 
implementation of the Attachment B-related commitments and to register the classification intended by the European Communities with a view to assisting ITA participants in the discussions on the 
classification divergences that were envisaged in pa ragraph 5 of the ITA Annex.  This was necessary 
because  the approach taken with r espect to HS headings that appear  in Attachment A was not feasible 
for other products. Due to the fact that ITA par ticipants notified different codes next to the 
descriptions in many cases, we explained that re liance on interpretation of those codes would not 
reflect the common intentions of participants and could run contrary to an assessment of the objective 
meaning of the terms.  We accordingly decline to consider them further. 
                                                     
 
1168 Specifically, the notification of that amendment reads in relevant part as follows: 
"Consequently, the tariff references shown against product descriptions in Attachment B of 
the ITA Schedule of the European Communities should be modified as follows: 
 Set-top boxes
: Replace by following reference: 8517.50.90 (uncha nged), 8517.80.90 
(unchanged), 8525.20.99 (unchanged), 8528.12.91 (new) ." 
 See G/MA/TAR/RS/74 (15 December 2000) (Exhibit US-26). 
1169 See para. 7.29 above. 
1170 European Communities' first written submission, para. 251. 
1171 See para. 7.343 above. We confirmed our findings based inter alia  on our contextual assessment of 
the ITA, and consideration of the WTO schedules of other WTO participants. WT/DS375/R 
WT/DS376/R WT/DS377/R 
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  7.906  While the Panel considers that the descriptions  associated with the tariff item numbers do not 
define the scope of the obligation, we neverthel ess note that the codes do not inform us whether 
coverage extends to products that  incorporate additional features, su ch as a hard drive, or products 
that employ particular technologies to achieve Inte rnet connectivity.  Were we to treat the codes as 
dispositive, then one might conclude that the European Communities only undertook obligations for 
products containing telephone-based mode ms due to the particular codes. 
Other descriptions in the Annex to the EC Schedule in context  
Arguments of the parties 
7.907  Japan  argues that other descriptions in the Annex to the EC Schedule reflect that the 
concession for STBCs was not intended to be limited.   Japan argues, where the drafters intended to 
limit the function of the apparatus they included clear  statements to this effect, such as in the 
description for "computers" or "Network equipmen t".  In the case of "computers", Japan emphasizes 
the language "Machines performing a specific function other than data-processing , or incorporating or 
working in conjunction with an automatic data-proce ssing machine, and not ot herwise specified under 
Attachment A  or B , are not covered by this agreement." (emphasis added).
1172  In the description for 
"Network equipments", Japan refers to the lang uage "Local Area Network (LAN) and Wide Area 
Network (WAN) apparatus, including those products dedicated for use solely or principally  to permit 
the interconnection of automatic data-processing machines and units thereof for a network…" 
(emphasis added).1173  Japan argues that the concession for ST BCs does not include comparable words 
of limitation and that there is thus no such limitation for the STBCs concession.1174 
7.908  The European Communities  argues that, overall, Attachment B was written "in rather 
straightforward terms, not using any highly tec hnical language", a good example of which is the 
description of "proprietary format storage devices" , which specifies that that product category also 
includes "Bernoulli box, Syquest and Zipdrive cartridge storage units".1175  According to the European 
Communities, while this language appears highly tec hnical "at first sight", it confirms that the 
language that the negotiators used "was not a highly technical one and that when they wanted to ensure that a particular product is covered, they di d not hesitate to use even  its commercial name".  
For instance, the European Communities argues that drafters could have made express reference to 
technologies such as ISDN, WLAN or Ethernet had they intended from products that connect to the Internet through these technologies to be covered.
1176 Or, drafters could have referred to a particular 
standard (such as an IEEE standard) had it consid ered the technical standard of a professional 
organization were relevant.1177 
Consideration by the Panel 
7.909  Japan and the European Communities refer to the following narrative descriptions in the 
Annex to the EC Schedule as providing relevant c ontext to inform interpretation of the STBCs 
narrative description. 
                                                      
1172 Japan's first written submission, para. 395. 
1173 Japan's first written submission, para. 396. 
1174 Japan's first written submission, para. 397. 
1175 European Communities' second written submission, para. 234. 
1176 European Communities' second written submission, para. 229. 
1177 European Communities' second written submission, para. 233.  WT/DS375/R 
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  "Computers: automatic data-processing machines capable of 1) storing the processing 
program or programs and at least the data immediately necessary for the execution of the program; 2) being freely programmed in accordance with the requirements of the 
user; 3) performing arithmetical computations specified by the user; and 4) executing, 
without human intervention, a processing program which requires them to modify their execution, by logical decision during the processing run.  
The agreement covers such automatic da ta-processing machines whether or not they 
are able to receive and process with the assistance of central processing unit 
telephony signals, television signals, or othe r analogue or digitally processed audio or 
video signals. Machines performing a specific function other than data-processing, or incorporating or working in conjunction w ith an automatic data-processing machine, 
and not otherwise specified under Attachment A or B, are not covered by this agreement." 
"Network equipment: Local Area Network (LAN) and Wide Area Network (WAN) 
apparatus, including those products dedicated for use solely or principally to permit 
the interconnection of automatic data-p rocessing machines and units thereof for a 
network that is used primarily for the sh aring of resources such as central processor 
units, data storage devices and input or out put units including adapters, hubs, in line 
repeaters, converters, concentrators, br idges and routers, and printed circuit 
assemblies for physical incorporation into  automatic data-processing machines and 
units thereof." 
"Proprietary format storage devices including media therefor for automatic data-
processing machines, with or without rem ovable media and whether magnetic, optical 
or other technology, including Bernoulli Box, Syquest, or Zipdrive cartridge storage 
units." 
7.910  As is reflected in the descriptions above, th e product coverage in the Annex to the EC 
Schedule is varied, including computers, but also  network equipment, storage devices, and set top 
boxes which have a communication function, among other products.  In our view, divergences in the language used in the various product descriptions, and the varying levels of specificity they contain, 
diminishes the significance that can be drawn from comparisons and contrasts between the language 
in various products descriptions. 
7.911  We explained above that the inclusion of the list of narrative descriptions in Attachment B 
reflects an approach different from the traditiona l approach of using the language of the HS.  
Participants to the ITA agreed to  eliminate duties on all products specified in Attachment B, whether 
or not they are included in Attachment A.  I nherent in this dual approach, ITA participants 
consequently agreed to include language in descriptions in Attachment B that is not necessarily 
language derived from the HS.  Certain descriptions in Attachment B  provide limited explanation of 
the type of products covered (e.g. "Paging alert de vices, and parts thereof"), while other descriptions 
provide detailed technical characteristics of the products covered (e.g. "monitors"
1178).  In addition, 
while some of them define the coverage in te rms of the "use" of the product (e.g. "electric 
                                                      
1178 "Monitors: display units of automatic data-processi ng machines with a cathode ray tube with a dot 
screen pitch smaller than 0,4 mm not cap able of receiving and processing tele vision signals or other analogue or 
digitally processed audio or video signals without assistance of a central processing unit of a computer as defined in this agreement.  The agreement does not, therefore, cover televisions, including high definition 
televisions." WT/DS375/R 
WT/DS376/R WT/DS377/R 
Page 270 
  
  amplifiers"
1179), others descriptions identify types of products covered (e.g. "Proprietary format 
storage devices"1180). While some relate to terms which are not found in the HS ("Flat panel display 
devices"), some appear to borrow language from the HS (e.g. "computers"1181), and at least one 
description makes express reference to specific HS headings where the products appear in the HS 
(i.e., "Plotters"1182)  Moreover, certain descriptions incl uding the STBCs narrative description make 
use of a colon or semicolon in the first part of the description.1183  Finally, certain descriptions 
expressly limit coverage, whereas other descr iptions contain no such express limitation. 
7.912  This lack of uniformity in the Attachment B product descriptions potentially arose from the 
desire of participants to provide duty-free covera ge for products matching descriptions, but without 
clear agreement as to the relevant headings for cl assification of those products.  In our view, this 
makes it difficult to extrapolate the terms from one  Attachment B description to interpret another 
Attachment B description.   
7.913  As discussed in paragraph 7.888 above, we note the description for STBCs emphasizes the 
function of the product, rather than, for example,  an extensive technical description or focus on 
specific technology.  Such emphasis is clear from the language "which have a communication 
function", that is informed by the phrase "for gain ing access to the Internet, and having a function of 
interactive information exchange".  The func tionality includes "access to the Internet" and 
"interactive" or "two-way" information exchange.  We determined the emphasis on functionality to be 
primary to our interpretation, rather than, for exam ple, a focus on technical properties, which were not 
elaborated in the concession. 
7.914  Similar to the STBCs narrative description, the description for "Computers" is also function-
oriented, enumerating the capabilities or functions of the device.  Distinctly however, this description 
indicates with certain precision devices that would qua lify ("machines whether or not they are able to 
receive and process with the assistance of central  processing unit telephony si gnals, television signals, 
or other analogue or digitally processed audio or vide o signals"), but also those that would not qualify 
("Machines performing a specific function other than data-processing, or incorporating or working in 
conjunction with an automatic data-processing machine, and not otherwise specified under 
Attachment A or B, are not covered by this agreement").   We are hesitant to imply restrictions into the 
concession for STBCs that are not expressly provid ed for, as is the case with the "Computers" 
concession.   
7.915  We note that the descriptions for "Network E quipment" and "Proprietary format storage 
devices (...)" provide detailed explanation of thei r coverage, specifying products that are to be 
included and enumerating devices and components that  are to be included in the concession.  The 
description for "Proprietary format storage devices (...)" enumerates an exemplary, though not exclusive list of products that are to be covere d.  The concession pursuant to the STBCs narrative 
description in the EC Schedule appears to be rest ricted to a more limited category of products, as 
opposed to a range of equipment. 
                                                     
 
1179 "Electric amplifiers when used  as repeaters in line telephony produc ts falling within this agreement, 
and parts thereof." (emphasis added) 
1180 "Proprietary format storage devices including  media therefor for au tomatic data-processing 
machines, with or without removable media and whether magnetic, optical or other technology,   cartridge 
storage units." (emphasis added) 
1181 See Exhibit US-1. 
1182 "Plotters whether  input or output units of HS heading  No 8471  or drawing or drafting machines of 
HS heading No 9017 ." (emphasis added).  See Exhibit US-1. 
1183 The other three narrative descriptions in Attachment B making use of a semicolon are "computers", 
"network equipment" , and "monitors".  WT/DS375/R 
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  7.916  As a matter of treaty interpretation, we have focused on the ordinary meaning of the words 
used in the concession for STBCs.  As we have  noted, the words used place a clear emphasis on 
functionality.  We note that while the negotiators used the term "modem", they did not go further and 
enumerate precise modem or device technologies that are considered to fall within the concession, or 
that are considered to fall outside the concession.  Th is supports the Panel's view that the intention of 
the drafters was to emphasize function (for example,  gaining access to the internet) and not form (for 
example, a particular kind of modem or device technology enabling access to the internet).  Beyond 
this, however, in the Panel's view the partic ular terms of surrounding concessions, which were 
negotiated in different circumstances and in a di fferent factual context, and concern altogether 
dissimilar products, do not greatly assist in inte rpreting the scope of the STBCs concession.   
The WTO Schedules of other WTO Members as context
 
7.917  The European Communities argues that the Sc hedules of other ITA participants provide 
relevant context to interpret the FPDs narrative description.1184  The Panel recalls as the Appellate 
Body explained in EC – Chicken Cuts , that other WTO Members' Schedules may provide relevant 
context to interpret the terms in  a particular Member's Schedule.1185  We will thus consider the 
European Communities' arguments concerning the HS subheadings that other ITA participants 
notified in the Schedules when implementing thei r ITA commitments.  The European Communities 
refers to a table summarizing the classification up to HS subheading level (six digits) notified by ITA 
participants based on modifications made vi a WTO document G/IT/2/Add.1 of 17 October 1997:1186 
Classification of "set top boxes which have a communication function" 
by ITA participants in 1997 
Sub-heading Number of participants classifying 
in that subheading Main parties to the dispute 
8471.41 2 - 
8471.90 1 - 
8517.50 25 EC, TPKM, US 
8517.80 12 EC, JA 
8525.10 3 US 
8525.20 14 EC, JA, TPKM 
8528.12 3 US 
8543.89 1 - 
 
7.918  The European Communities submitted a second ta ble, based on an updated document by the 
WTO Secretariat of 29 July 1999:1187 
Classification of "set top boxes which have a communication function" 
by ITA participants from 1997 to 1999 
Sub-heading Number of participants classifying 
in that subheading Main parties to the dispute 
8471.41 2 - 
8471.90 1 - 
8517.50 31 EC, TPKM, US 
8517.80 14 EC, JA 
                                                      
1184 European Communities' first written submission, paras. 142-145. 
1185 See Appellate Body Report on EC – Chicken Cuts , para. 193. 
1186 WTO document G/IT/2/Add.1 (17 October 1997) (Exhibit EC-14). 
1187 European Communities' first written submission, para. 246, which makes reference to WTO 
document G/IT/2/Add.1/Rev.1 of 29 July 1999 (Exhibit EC-20). WT/DS375/R 
WT/DS376/R WT/DS377/R 
Page 272 
  
  Classification of "set top boxes which have a communication function" 
by ITA participants from 1997 to 1999 
Sub-heading Number of participants classifying 
in that subheading Main parties to the dispute 
8525.10 3 US 
8525.20 17 EC, JA, TPKM 
8528.12 3 US  
8543.89 1 - 
 
Arguments of the parties 
7.919  The European Communities  argues that the information pr esented in the table indicates the 
parties' understanding of what was covered by the product description for STBCs in 1997.  While 
recognizing divergences in the codes that were notified by ITA participants, the European 
Communities submits that the "overwhelming ma jority" notified HS1996 subheadings 8517 50, 
8517 80 and 8525 20, confirming agreement on the intended coverage of the STBCS narrative 
description.1188  The European Communities also refers to a second table containing 1999 updated 
information by the WTO Secretariat, which incorpor ates HS headings notified by participants that 
joined the ITA following the issu ance of the original document.  This later document further 
incorporates change that had been implemented by th e participants as a result of rectifications or 
modifications.1189   
7.920  The complainants  argue that the table summarizing the codes where the ITA participants 
classified STBCs is irrelevant.  In their view, the tabl e merely supports the view that at the time of the 
ITA there was no uniform agreement on the relevant  classification headings for STBCs which have a 
communication function.1190  In any case, as illustrated by the table, some WTO Members listed "set-
top boxes which have a communication function" under HS1996 heading 8528 12.1191 
Consideration by the Panel 
7.921  The Panel  recalls from paragraph 7.445 above that th e four tariff item numbers next to the 
narrative descriptions in the EC Schedule do not li mit the concession.  They only illustrate where the 
European Communities considered relevant FPDs were classifiable at the time of implementation of 
the ITA.  Accordingly, we will only make a few poi nts regarding the table presented by the European 
Communities. 
7.922  The European Communities submitted as exhi bits two separate WTO Secretariat reports 
which summarize the HS subheadings that were liste d by ITA participants: the table above, describing 
the situation in 1997, as well as a document assessi ng the practice of ITA parties between 1997 and 
1999.1192  Both the WTO Secretariat reports and the tables submitted by the European Communities, 
                                                      
1188 European Communities' first written submission, paras. 244-245. 
1189 See fn. 1187 above. 
1190 United States' second written submission, para. 47; Japan's second written submission, para. 222; 
Chinese Taipei's second written submission, paras. 249-250. 
1191 Japan's response to Panel question No. 82; Chinese Taipei's response to Panel question No. 82. 
1192 European Communities' first written submission, para. 243, 246 and fn. 156. These are document 
G/IT/2/Add.1 (17 October 1997) (Exhibit EC-14) and document G/IT/2/Add.1/Rev.1 (29 July 1999) (Exhibit 
EC-20).  WT/DS375/R 
 WT/DS376/R 
 WT/DS377/R 
 Page 273 
  
  however, wrongly mention that Japan notified HS head ings next to narrative product descriptions.  
Japan's schedule, however, did not.
1193    
7.923  In light of this error, the Panel conducted its  own assessment of the information as presented 
below:1194 
HS 
Subheading 
(6 digit) Number of 
participants 
notifying 
that 
subheading There is at least one tariff line listed in the  
Schedule of the following ITA participants: 
8471 41 6 Costa Rica; Dominican Republic; Guat emala; Honduras; Nicaragua; El 
Salvador 
8471 50 1 China 
8471 90 1 Indonesia 
8517 50 40 Albania; Australia; Bahrain; Canada; China; Costa Rica; Croatia; Dominican Republic; Egypt; El Salvador; European Communities; Georgia; Guatemala; 
Honduras; Hong Kong, China; Iceland; India; Israel; Jordan; Korea; Kyrgyz 
Rep.; Macao, China; Malaysia; Ma uritius; Moldova; Nicaragua; New 
Zealand; Norway; Oman; Peru; Philippines; Saudi Arabia; Chinese Taipei; 
Singapore; Switzerland/Liechtenstein; Thailand; Turkey; UAE; United States; Viet Nam 
8517 80 13 Albania; Croatia; European Communities; Egypt; Georgia; Iceland; Jordan; 
Kyrgyz Rep.; Macao, China; Moldova ; New Zealand; Norway; Turkey 
8525 10 11 Bahrain; Costa Rica; El Salvador; H onduras; Nicaragua; Oman; Peru; Saudi 
Arabia; UAE; United States; Viet Nam 
8525 20 15 Albania; Australia; Croatia; European Communities; Georgia; Iceland; 
Kyrgyz Rep.; Macao, China; Moldova ; New Zealand; Peru; Philippines; 
Chinese Taipei; Turkey; Viet Nam 
8528 12 9 European Communities; Iceland; M acao, China; Oman; Saudi Arabia; 
Ukraine; UAE; United States; Viet Nam 
8530 00 1 Bahrain 
8543 89 1 Israel 
 
7.924  This table demonstrates considerable diverg ence in the HS subheadings listed by ITA 
participants next to the STBCs narrative descr iption. HS1996 subheading 8517 50, for instance, 
appears in twice as many schedules as other subheadings.1195  This subheading pertains to Electrical 
apparatus for line telephony or line telegraphy, in cluding line telephone sets with cordless handsets 
and telecommunication apparatus for carrier-current line systems or for digital line systems; 
videophones. - Other apparatus, for carrier-current lin e systems or for digital line systems."  However, 
a number of Members declined to notify subheadings 8517 50, 8517 80 and 8525 20 next to the STBCs narrative description in the corresponding section of their Schedule.   
                                                     
 
1193 See paragraph 7.432 above. 
1194 The Panel followed the same methodology used by the WTO Secretariat in preparing this table.  A 
particular Member is listed next to those HS subheadings  if that Member has listed at least one national tariff 
line in its schedule that falls under that HS subheadi ng. The following table summa rizes the HS subheadings 
listed by the relevant 43 Members in their schedules of concessions, but does not include information of the schedules of those EC member States that are jointly re presented by the EC-27.  These are: Bulgaria, Cyprus, 
Czech Republic, Estonia, Latvia, Lithuania, Pola nd, Romania, Slovak Republic and Slovenia.   
1195 Besides Japan, which did not assign any code to products in or for Attachment B, the Panel notes 
that Indonesia and Ukraine did not list HS1996 subheading 8517 50 as relevant for STBCs in their schedules of 
concessions. WT/DS375/R 
WT/DS376/R WT/DS377/R 
Page 274 
  
  7.925  In addition, other HS1996 subheadings that appeared  more or less frequently in the schedules 
of ITA participants include the following:  
8517 80
: "Electrical apparatus for line telephony or line telegraphy, including line 
telephone sets with cordless handsets and telecommunication apparatus for carrier-
current line systems or for digital line systems; videophones. - Other apparatus" 
8525 10 : "Transmission apparatus for radio- telephony, radio-telegraphy, radio-
broadcasting or television, whether or not  incorporating reception apparatus or sound 
recording or reproducing apparatus; tele vision cameras; still image video cameras and 
other video camera recorders. - Transmission apparatus" 
8525 20 : "Transmission apparatus for radio- telephony, radio-telegraphy, radio-
broadcasting or television, whether or not  incorporating reception apparatus or sound 
recording or reproducing apparatus; tele vision cameras; still image video cameras and 
other video camera recorders. - Transmission apparatus incorporating reception 
apparatus." 
8528 12 : "Reception apparatus for television, whether or not incorporating radio-
broadcast receivers or sound or video r ecording or reproducing apparatus; video 
monitors and video projectors; - Reception apparatus for television, whether or not 
incorporating radio-broadcast receivers or  sound or video recording or reproducing 
apparatus; - - Colour" 
7.926  While a number of participants considered subh eading 8517 50 relevant to their classification 
of products in connection with the STBCs narrative description, a noteworthy number of participants 
considered HS subheading 8528 12 to be rele vant to their classification of set top boxes. 
(iv) Object and purpose 
Arguments of the parties  
7.927  We recall from our assessment of the partie s' arguments concerning object and purpose1196, 
that the complainants  argued that a recognized object and purpose of the WTO Agreement  and GATT 
1994 is providing security and predictability in the reciprocal and mutually advantageous 
arrangements directed to the substantial reduction of tariffs and barriers to trade.1197  In their view, the 
objectives of security and predictability also require  that concessions cover products even if those 
products did not exist in that form at the time the concessions were granted as long as they comply 
with the wording of the concessions concerned.1198  The complainants also note that both the WTO 
Agreement  and the GATT 1994 recognize "expanding the pr oduction and trade in goods" as another 
core object and purpose that is furthere d by reciprocal reductions in tariffs.  
                                                      
1196 See paras. 7.537-7.549 above. 
1197 Complainants' response to Panel question No. 1; Japan's first written submission, para. 172 
(referring to paragraph 3 of the Preamble to the Marrakesh Agreement; Panel Report on China – Auto Parts , 
para. 7.460 and Appellate Body Report on EC – Chicken Cuts , paras. 243 and 288); Japan's second written 
submission, paras. 409-410; Chinese Taipei's first writte n submission, paras. 144-145; Chinese Taipei's second 
written submission, para. 282. 
1198 Japan's first written submission, para. 177; Chinese Taipei's first written submission, paras. 289-
290 and 627-630; Chinese Taipei's second written submission, para. 444.  WT/DS375/R 
 WT/DS376/R 
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  7.928  The European Communities  considers the complainants' in terpretative approach overbroad 
and that it compromises the legal certainty and pred ictability of tariff concessions, creating the risk 
that Members will become reluctant to  pursue the ITA liberalization process.
 1199 
Consideration by the Panel  
7.929  The Panel  concluded that the relevant object and pur pose with respect to this dispute is the 
general object and purpose of the WTO Agreement  and the GATT 1994 as a whole.  We concluded 
that the ITA should not be considered the basis for determining the object and purpose of the WTO 
Agreement  and the GATT 1994. 
7.930  The relevant object and purpose for the purposes of this dispute is to provide security and 
predictability in the reciprocal and mutually adva ntageous concessions negotiated by parties for the 
reduction of tariffs and other barriers to trade.  In  the Panel's view, the interpretation of the STBCs 
narrative description described above is fully consistent with this object and purpose. 
(v) Subsequent practice (Article 31(3)(b) of the Vienna Convention ) 
Arguments of the parties  
7.931  The European Communities  argues that the codes notified by ITA participants between 
1997 and 1999, as referred to in WTO Document G/IT/2/Add.1/Rev.1 of 29 July 19991200, provides 
information on classification divergences, including t hose of new participants that joined the ITA 
since 1997. The European Communities argues that the codes notified by ITA participants at the time 
of implementation reveal that the "overwhelmi ng majority of ITA participants" shared its 
understanding of the product covera ge of the concession for STBCs at the time of implementation of 
the concession.1201 The European Communities provides th e following table to summarize the 
information:1202 
Classification of "Set top boxes which have a communication function" 
by ITA participants from 1997 to 1999 
Sub-heading Number of participants 
classifying in that subheading Main parties to the dispute 
8471.41 2 - 
8471.90 1 - 
8517.50 31 EC, TPKM, US 
8517.80 14 EC, JA 
8525.10 3 US 
8525.20 17 EC, JA, TPKM 
8528.12 3 US 
8543.89 1 - 
 
7.932  Specifically, the European Communities submits that the "overwhelming majority of ITA 
participants" identified codes 8517 50; 8517 80 and 8525 20 as the relevant codes for STBCs.  These 
are also the codes that the Eu ropean Communities notified in the Annex to its Schedule, i.e., 
                                                      
1199 European Communities' first written submission, paras. 170-172. 
1200 Exhibit EC-20. 
1201 European Communities' first written submission, para. 245. 
1202 European Communities' first written submission,  para. 246 (referring to G/IT/2/Add.1/Rev. 1 
(Exhibit EC-20)). WT/DS375/R 
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Page 276 
  
  8517 50 90; 8517 80 90 and 8525 20 99.  The European Communities argues that the data provides a 
"very valuable indication" of what the ITA parties to the ITA understood in 1997 (i.e., when they notified their amended schedules of commitments to the WTO) under the product description "set top 
boxes which have a communication function".
1203  Specifically, the European Communities indicates 
that codes 8517 50; 8517 80 and 8525 20 all pertai n to modem devices.  Thus, it argues that the 
notification of these tariff lines reflects an unde rstanding that the narrative description in the 
concession was only intended to cover certain types of  set top boxes.  that access the Internet via a 
modem connected through a telephone line but, not set top boxes which function as recorders or those 
that incorporate a tuner.  The European Co mmunities argues that, had Members intended to 
incorporate those with recording or tuner capabilities,  then they would have notified codes of heading 
8521 or 8528.1204 
7.933  The complainants  consider that the notified codes mere ly illustrate where the products were 
classified at that time.  Thus, they argue that the absence of particular codes should not be interpreted 
to mean that only certain categories of set top boxes are covered under the concession.1205  Japan and 
Chinese Taipei submit that certain Members notif ied heading 8525, which contradicts the assertion 
that Members held a consistent view on the coverage of the STBCs concession.1206   
Consideration by the Panel  
7.934  We recall from paragraphs 7.557-7.561, that "subsequent practice" is the "...'concordant, 
common and consistent' sequence of acts or pr onouncements which is sufficient to establish a 
discernible pattern implying the agreement of the pa rties [to a treaty] regarding its interpretation"1207.  
It is an "important element" in treaty interp retation that provides "objective evidence of the 
understanding of the parties as to the meaning of the treaty".1208  Inconsistent classification practice 
must be disregarded.1209  In determining what constitutes "c ommon" and "concordant" practice, we 
noted that it would be difficult to establish a "concordant, common and discernible pattern" on the 
basis of acts or pronouncements of one, or very few parties to a multilateral treaty, such as the WTO 
Agreement .1210   
7.935  Accordingly, the Panel will consider whether there is evidence of "consistent, common and 
concordant" classification practice on the part of the ITA participants and with respect to the set top 
box products at issue since the conclusion of the ITA until present.   
7.936  As mentioned in paragraph 7.563 above, we  do not consider it appropriate to assess 
information in WTO document G/IT/2/Add.1/Rev.1 (29 July 1999), either alone or in combination 
with information from WTO document G/IT/2/Add.1 of 17 October 19971211 as "subsequent practice" 
because it is unclear whether the tables broadly re flect the practice of ITA participants classifying 
STBCs.  That document indicates that the "table was prepared from participants' schedules of 
commitments" and that it incorporates "any chan ges that were im plemented by participants as 
                                                      
1203 European Communities' first written submission, paras. 244-245. 
1204 European Communities' first written submission, para. 241. 
1205 Complainants' response to Panel question No. 82. 
1206 Japan's and Chinese Taipei's responses to Panel question No. 82. 
1207 Appellate Body Report on Japan – Alcoholic Beverages II , para. 106. 
1208 Appellate Body Report on EC – Chicken Cuts , para. 255 (citing Yearbook of the International Law 
Commission (1966), Vol. II, page 219, para. (6)); see also Panel Report on China – Auto Parts , para. 7.702. 
1209 Appellate Body Report on EC – Computer Equipment , para. 95. 
1210 Appellate Body Report on EC – Chicken Cuts, para. 259. 
1211 WTO document G/IT/2/Add.1 of 17 October 1997 (Exhibit EC-14) see para. 7.917 above.  WT/DS375/R 
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  rectifications or  modifications".
1212  Since we cannot confirm the nature  of participants' practice solely 
on the basis of the codes appearing in the table, and since we have considered the identical data in our 
assessment of other Members' Schedules as relevant "context", we abstain from elaborating further in 
this Section on the European Communities' table or the document that forms the basis of the table. 
7.937  Apart from information appearing in the table,  the European Communities has not identified 
evidence of the practice of other Members.  The comp lainants allege that the practice of the European 
Communities has been inconsistent, in particular beginning in the years 2005-2006.  Without further 
evidence to assess the practice among at least those Members that participate in the export and import 
of set top boxes, we lack sufficient evidence of th e existence of subsequent  practice to inform its 
interpretation. 
(vi) Other arguments – Surrounding circumstances 
7.938  Apart from an analysis of the text of the concession in the EC Schedule, the European 
Communities argues that the Panel should consider  the "surrounding circumstances" to inform its 
interpretation of the treaty terms.  In particular, the European Communities argues that the type of set 
top boxes that were available in 1996 at the time of negotiations, and the descriptions used during 
negotiations of the concession establish wh at was the intended product coverage.1213   
7.939  The complainants argue that the European Co mmunities' allegations concerning the type of 
set top boxes available and descriptions allegedly used  in the context of ITA negotiations can at most 
qualify as "supplementary means" of interpretation pu rsuant to Article 32 of the Vienna Convention.  
The United States argues that the European Comm unities has not demonstrated that the meaning 
resulting from Article 31 is obscure or manifestly absurd or unreasonable or that the documents 
confirm the meaning resulting from the applicati on of an Article 31 analysis under the Vienna 
Convention in this case.1214   
7.940  In raising its arguments concerning the surrounding circumstances, the European 
Communities refers to the following citation by the Appellate Body in EC – Chicken Cuts :1215 
"The ordinary meaning of a treaty term must be ascertained according to the 
particular circumstances of each case.  Im portantly, the ordinary meaning of a treaty 
term must be seen in the light of the inten tion of the parties 'as expressed in the words 
used by them against the light of the surrounding circumstances'".1216 
7.941  In that case, the Appellate Body evaluated the Panel's decision to consider other elements in 
addition to dictionary definitions, to complete its ordinary meaning analysis of the terms under 
review.1217  The Appellate Body found no flaws in the Pa nel's decision to consider other elements to 
complement its analysis of the dictionary definiti ons, noting that interpretation pursuant to Article 31 
                                                      
1212 WTO document G/IT/2/Add.1/Rev.1, paras. 1 and 2 (Exhibit EC-20). 
1213 European Communities' first written submission, paras. 219-236 and, in particular, para. 235. 
1214 United States' second written submission, para. 45. 
1215 European Communities' first written submission, para . 219 (noting that this excerpt derives from a 
book by Lord McNair, The Law of Treaties (Oxford Clarendon Press, 1961), p. 365 (Exhibit EC-33)). 
1216 Appellate Body Report on EC – Chicken Cuts , para. 175. 
1217 Appellate Body Report on EC – Chicken Cuts , para. 176.  These elements, described as "factual 
context" included "products covered by the concession contained in heading 02.10", "flavour, texture, [and] other physical properties" of the products falling under heading 02.10, and "preservation" when interpreting the 
term "salted" as it app ears in heading 02.10. WT/DS375/R 
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  of the Vienna Convention is a "holistic exercise ", and that such elements could otherwise be 
considered as "context" if not considered under "ordinary meaning". 
7.942  One issue that arises is what relevance and wei ght should be given to the materials that the 
European Communities submitted. As a second matter, we recall that the party that asserts a particular 
fact must be able to prove it.  In this latter resp ect, in asserting that a certain factual situation existed 
at the time of the negotiations, and that this shoul d inform our interpretation, the burden is on the 
European Communities to provide clear and objective evidence not just that such a factual situation 
did indeed exist, but also the linkage between th is factual situation and the actual text of the 
concession.  In other words, the European Communiti es must be able to demonstrate, on an objective 
basis, that the factual situation at the time of th e concession informed the intention of the drafters, and 
influenced the terms used in the concession at issue. 
7.943  We have found in paragraph 7.888, in interpreting the European Communities' commitment 
on STBCs in accordance with Article 31 of the Vi enna Convention, that the term "set top box" 
generally describes an apparatus or device that processes an incoming signal from an external signal 
source in a manner that can be presented on a display unit, such as a video monitor or television set.  
This apparatus need not be designed to be placed  on top of the display unit and may handle one or 
several functionalities.  We recognized that, th rough the inclusion of additional features or 
incorporation into another product, an apparatus may no longer be d escribed as, in essen ce, a "set top 
box which ha[s] a communication function" and w ould not be covered by the concession.  We 
concluded further that the terms of  the STBCs concession in the Annex to the EC Schedule extends to 
any "set top box" that fulfils all of the fo llowing requirements:  it is microprocessor-based; 
incorporates a "modem", and is capable of gain ing access to the Internet and handling two-way 
interactivity or information exchange .  We concluded that, in the cont ext of this concession, the term 
"modem" should not be interpreted in an overly narro w or technical sense, but should be informed by 
the clear emphasis on functionality. Accordingly, we found that devices that incorporate, or have built 
in, technologies that enable them to access the Internet and provide interactive information exchange 
may fall within the scope of the concession.   
7.944  We will examine, first, materials presented by  the European Communities in connection with 
the ITA negotiations, and second, the European Comm unities' arguments regarding the existence of 
certain technologies at the time of the conclusion of the ITA.   
7.945  Before proceeding, we recall the European Commun ities' statement that it is not arguing that 
only those products and models that use the precise technology present in 1996  would be covered by 
the concessions made pursuant to the ITA. Contra ry to this view, the European Communities 
recognizes certain concessions are open ended in resp ect of the precise technology used by a given 
device or apparatus."
1218   
Landscape papers submitted during negotiation of the ITA  
Arguments of the parties 
7.946  The European Communities  argues that "non-papers" circul ated among negotiators illustrate 
the type of set top boxes that were intended to be covered by the STBCs narrative description.  In 
papers issued on 4 October 1996 and 18 October 1996, the European Communities argues that a 
                                                      
1218 European Communities' response to Panel question No. 53 (stating "[t]here is no general rule 
according to which the ITA concessions would either be entirely open to technological  developments or that 
they would only be limited to the products and technology existing at the time).  WT/DS375/R 
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  negative list of "items predominantly designed for c onsumer use" demonstrates that only certain set 
tops were intended for duty-free cove rage, in particular "Set top boxes for connecting to the Internet", 
but not "Set top boxes (decoder a nd TV receiver or decoder only)".
1219  In a 23 October 1996 paper, 
the European Communities argues th at Japan proposed inclusion of set top boxes that "bring high-
quality, economical Internet access to the televisi on consumer audience" or are "television-based 
Internet solution[s] … to accessing and browsing the Internet".1220  In a 31 October 1996 paper, the 
European Communities refers to a description for "Set-top boxes which have communication 
function" as "a device, equipped with CPU and mode m function, which has a function of interactive 
information exchange".1221  In a 1 November 1996 document, the European Communities notes that 
the descriptions for "Game machines (…)", "Interne t television" and "Set top boxes (decoder and TV 
receiver or decoder only)" were included on the same lists.1222  In a 25 November 1996 document, 
described as a "Quad Technical Working Document ", the European Communities argues that a more-
developed definition of "Set top boxes which ha ve communication function" was finally provided, 
reflecting in handwritten notes a proposal to change  the phrase "which have communication function" 
to "with communication function".1223  In the European Communiti es' view, these materials are 
evidence that the words of the par ticular concession at issue "really matter", as demonstrated through 
the back and forth comments by parties.1224 
7.947  The United States  and Chinese Taipei  submit that the materials were prepared by individual 
Members and do not represent the common intentions of the parties, or even the views of all ITA 
participants, and thus should not be considered.  Moreover, the Unite d States argues that the European 
Communities uses these materials to advocate a diff erent meaning than what may be concluded from 
an analysis of the ordinary meaning of the terms of the concession, and thus its position should not be 
accepted.1225 
Consideration by the Panel 
7.948  In the context of discussing landscape papers subm itted as part of the negotiations of the ITA, 
we recall our determination in para graph 7.581, that consideration of  "landscape papers", which were 
only reviewed by a subset of the negotiating ITA part icipants (the "Quad" members, in particular) and 
were not circulated at any point in time prior to  this dispute, should not have any bearing on our 
interpretation of the concessions arising under the ITA,  that were subsequently incorporated into ITA 
participants' Schedules.  Accordingly, we do not c onsider that they should inform our interpretation 
here. 
7.949  Notwithstanding this conclusion, we find it difficu lt to draw any particular conclusion from 
the content of the materials that have been submitt ed.  In particular, the lists of "products to be 
                                                      
1219 European Communities' first written submission, pa ras. 227-228, referring to Exhibits EC-39-40. 
1220 European Communities' first written submission, pa ra. 230, referring to Exhibit EC-41, p. 25. 
1221 European Communities' first written submission, para. 230, referring to Exhibit EC-42.  The 
European Communities notes that this same document also included a description for "Game Machines which 
have a communication function", described as "Game machines equipped with CPU and modem function, 
which adds a function of interactive information exchange  to television set when connected to it"; and "Internet 
television", which was described as "A television set, equipped with CPU and modem function inside, which 
has a function of interactive information exchange " (European Communities' first written submission, 
para. 231). 
1222 European Communities' first written submission , para. 232, referring to Exhibit EC-24. 
1223 European Communities' first written submission , para. 233, referring to Exhibit EC-27. 
1224 European Communities' first written submission, para. 235. 
1225 United States second written submission, para. 46; Chinese Taipei's second written submission, 
para. 243. WT/DS375/R 
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  included wherever they are classified" in the  18 October 1996 "non-paper" refers broadly to "Set top 
boxes for connecting to the Internet".  To the extent  relevant to our analysis, this would appear to 
support a broad interpretation.  Moreover, this same  document refers to products to be excluded from 
ITA coverage, including "Set top boxes (decoder and TV  receiver or decoder only)".  No mention is 
made to these aspects in the final text of the c oncession, nor is mention made to hard drive or 
recording features.  Finally, the progression of wo rking documents ultimately demonstrate a definition 
of set top boxes that is not much, if at all, diffe rent from that appearing in Attachment B and the EC 
concession.  As noted above, the burden is on the European Communities to demonstrate how and 
why the documents it has referred to assist the Panel in interpreting the text of the concession and the 
intention of the drafters. We do not fi nd such assistance in these materials. 
The state of technology at the time of ITA negotiations
 
Arguments of the parties 
7.950  The European Communities  argues that set top boxes available in 1996 can generally be 
divided into two categories: a fi rst category it describes as "traditi onal" set top boxes that mainly 
allowed for digital TV viewing on analogue TV  devices by paying customers; and a second it 
describes as  "Internet on TV" devices, which allowed interactive communication and could access the Internet when used in conjunction with a television.
1226  The European Communities argues that 
this latter category of pr oduct was generally not successful in the market, and disappeared with the 
introduction of the 1996 Microsoft "WebTV" project.1227  In subsequent years, the European 
Communities claims new set top boxes with a mode m and microprocessor were developed that were 
oriented toward ordering of video-on-demand co ntent, or accessing certain websites (e.g., home 
shopping or tele-voting), as opposed to sending and/ or receiving emails.  Later set top box models 
were developed that allowed limited access to th e Internet, such as to websites offering on-line 
shopping (e.g., walled garden type set top boxes).  Only later did set top boxes begin to incorporate 
video tuners to decode TV signa ls, and hard disks and functionality to record material from the 
television signal, according to the European Comm unities.  While these latter models retained a 
communication function for purposes such as ordering movies or downloading electronic programme guides/schedules facilitating the recording of TV programmes, the European  Communities argues that 
these products represent a new or "merged categor y" of products focused on video recording
 .1228  In 
its view, evidence demonstrates that two categories of  set top box were available in the marketplace in 
1996, which should inform the understanding of the scope of the concession.   
7.951  The United States and Chinese Taipei  argue that the European Communities has not 
provided evidentiary support for its assertions that onl y two types of set top boxes existed in 1996, or 
that "Internet on TV" devices were the only really successful set top boxes at that time.1229  T h e  
United States and Chinese Taipei submit that set-t op boxes existed in 1996 that permitted both 
television programming and Internet access via TV, a nd are clearly distinguishable from "Internet on 
TV" devices such as "WebTV".1230  The United States refers to literature describing a set top box in 
1996 that contained a decoder and television recei ver as well as a cable modem and provided access 
                                                      
1226 European Communities' first written submission, para. 222, referring to Exhibits EC-34-35; 
European Communities' response to Panel question No. 78. 
1227 European Communities' first written submission , para. 222, referring to Exhibit EC-36-38. 
1228 European Communities' response to Panel question No. 78. 
1229 United States second written submission, para. 43; Chinese Taipei's response to Panel question No. 
81; Chinese Taipei's second written submission, para. 2 44; Gerard O'Driscoll, The Essential Guide to Digital 
Set-Top Boxes and Interactive TV, (2000), p. 91 (Exhibit US-116). 
1230 United States second written submission, fn. 68 to para. 37, United States' response to Panel 
Question 81, referring to Exhibits US-114 to 116.  WT/DS375/R 
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  to services including home shopping, interactive games and distance learning.
1231  Chinese Taipei 
argues that literature at the time recognized a wide range of set top boxes with more traditional uses, 
such as television viewing or ordering pay-per-vie w movies and more advanced uses, such as 
interactive services including home shopping and Internet.1232  If there had been one product, the 
United States argues that the concession would have b een drafted differently to  refer to, for instance 
"WebTV devices without tuners" rather than set top boxes.1233   
Consideration by the Panel 
7.952  The Panel  notes that the arguments of the parti es set out above concern the existence or 
otherwise of certain technologies at the time of the ITA negotiations.1234  We recall that, as explained 
in paragraph 7.596 above, we do not consider it desirable nor possible to consider the relevance of the 
state of technology that existed at the time of th e negotiations, or technological development in the 
abstract and without reference to the terms of the concessions that are being interpreted.   
7.953  We recall that, in determining the scope of the European Communities' commitment on 
STBCs, we have applied the customary rules of interp retation of public international law, as set out in 
Articles 31 of the Vienna convention.  In doing so , we have examined the ordinary meaning of the 
terms of the European Communities' commitment, in the context provided by the ITA, other relevant 
parts of the EC Schedule, and the schedules of other WTO Members.  We have interpreted the 
concession based on the STBCs narrative description in this manner.   
7.954  We established that the STBCs concession pertai ns to apparatus or devices that processes an 
incoming signal from an external signal source in a manner that can be presented on a display unit, 
such as a video monitor or television set.  These appa ratus need not be designed to be placed on top of 
the display unit and may handle one or several functionalities.  We  recognized that, through the inclusion of additional features or incorporation in to another product, an apparatus may no longer be 
described as, in essence, a "set top box which ha [s] a communication function"  and would not be 
covered by the concession.  We concluded further that the terms of the STBCs concession in the 
Annex to the EC Schedule extends to any "set top bo x" that fulfils all of the following requirements:  
it is microprocessor-based; incorporates a "modem", a nd is capable of gaining access to the Internet 
and handling two-way interactivity or information ex change.  We concluded that, in the context of 
this concession, the term "modem" should not be in terpreted in an overly narrow or technical sense, 
but should be informed by the clear emphasis on f unctionality. Accordingly, we found that devices 
that incorporate, or have built in, technologies that  enable them to access the Internet and provide 
interactive information exchange may fa ll within the scope of the concession. 
7.955  We also observed that, when making a commitment, Members may propose precise, even 
exclusive terms to define that concession, to qualif y or limit the scope of coverage through terms and 
conditions, including by limiting term s to physical attributes, dimensions, technical characteristics or 
features.  A Member may also refer to a particular classification or tariff heading to define or limit the 
scope of a concession.  With regard to the STBCs concession we have found that that the central focus 
                                                     
 
1231 Complainants' response to Panel question No. 81, referring to Scientific-Atlanta 1996 Annual 
Report, p. 16 (Exhibit US-114); Explorer 2000 Installation and Operation Guide, pp. 1-2 and 1-4 (Exhibit 
US-115). 
1232 Japan's response to Panel question No. 81; Chinese Taipei's response to Panel question No. 81. 
1233 United States second written submission, para . 37, fn. 71, referring to Exhibit US-115. 
1234 See for instance, Japan's second written subm ission, para. 156; United States' first written 
submission, paras. 51-52 (citing to Hirohisa Kawamoto, The History of Liquid-Crystal Displays, Proceedings of 
the IEEE (Vol. 90, No. 4 (April 2002), p. 466 (discussing the reflection process)). WT/DS375/R 
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  is on function, as opposed to a precise or detailed assess ment of the technical properties of the internal 
components of a set top box. 
7.956  Even setting this aside, we recall that the Eur opean Communities would need to demonstrate, 
on an objective basis, that the factual situation at the time of the concession informed the intention of 
the drafters, and influenced the terms used in the concession at issue.  The Panel is not persuaded by 
evidence submitted by the European Communities that the market for set top boxes consisted of those 
used for viewing digital TV on analogue TVs, an d devices that enabled Internet access on TV, such 
that the concession was only to cover these products.  While the evidence in th e form of media press 
releases
1235 research studies1236, a product manual1237 and a fax from Japan's Ministry of International 
Trade, dated 23 October 1996, which itself a ttaches a "Web TV Networks" press release1238, reflects 
that so-called "Internet on TV" devices with limited functionalities and access via telephone line-
based modems were marketed a nd available in 1996, the complainants have referred to more 
sophisticated products with TV tuner capabilities.1239  While this does not directly address the 
question of whether devices with recording capabiliti es or modem technologies existed or not at that 
time, it at least does call into question whether the ITA participants were na rrowly focused in their 
views on products. 
(vii) Overall conclusions on the interpretation of th e narrative description for STBCs in the Annex 
to the EC Schedule 
7.957  Based on our assessment of the text of the ST BCs narrative description in the Annex to the 
EC Schedule in accordance with the principles codifi ed in Article 31 of the Vienna Convention, we 
concluded above that the term "set top box" genera lly describes an apparatus or device that processes 
an incoming signal from an external signal source in a manner that can be presented on a display unit, 
such as a video monitor or television set.  This appa ratus need not be designed to be placed on top of 
the display unit and may handle one or several functionalities.  We  recognized that, through the 
inclusion of additional features or incorporation into  another product, an apparatus may not meet the 
description of a "set top box which ha[s] a communi cation function" and would not be covered by the 
concession.  We concluded further that the terms of the STBCs concession in the Annex to the EC 
Schedule extends to a "set top box" that fulfil all the following requirements: it is microprocessor-
based; incorporates a "modem", and is capable of gaining access to the Internet and handling two-way 
interactivity or information exchange .  We concluded that, in the cont ext of this concession, the term 
"modem" should not be interpreted in an overly narro w or technical sense, but should be informed by 
the clear emphasis on functionality. Accordingly, we found that devices that incorporate, or have built in, technologies that enable them to access the Internet and provide interactive information exchange 
may fall within the scope of the concession. 
                                                     
 
1235 "Internet on TV satisfies consumers", Exhibit EC-34; "Out with decoder boxes, in with on-tv 
licenses at ViewCall", Exhibit EC-35; "Microsoft and We bTV Networks to Collaborate On Internet Television 
Browsing for the Masses", Exhibit EC-36. 
1236 "Media Policy: convergence, Concentration and Commerce", Euromedia Research Group, p. 91 
(Exhibit EC-37). 
1237 Sony Internet Terminal, Operating Instructions, Exhibit EC-38. 
1238 Fax from Japan's Ministry of International Trade, dated 23 October 1996, to Mr Jaochim 
Graminsky and Mr. Matthew Rohde, (Exhibit EC-41).  Of note, the Panel cannot verify that this fax was 
received by additional recipients. 
1239 Scientific-Atlanta 1996 Annual Report, p. 16 (Exhibit US-114); Explorer 2000 Installation and 
Operation Guide, pp. 1-2 and 1-4 (Exhibit US-115).  WT/DS375/R 
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  (b) The ordinary meaning of the relevant concession:  the United States' claim in connection with 
tariff item numbers 8517 50 90, 8517 80 90, 8525 20 99 and 8528 12 91 in the EC Schedule 
7.958  In addition to its claim in connection with the narrative product description for STBCs in the 
Annex to the EC Schedule, the United States has a dditionally claimed that the European Communities 
is required to provide duty-free treatment to STBCS u nder individual tariff lines that appear in the EC 
Schedule.  The United States submits that the Eu ropean Communities bound certain subheadings at 
zero duty in order to implement its ITA oblig ations, including tariff item numbers 8517 50 90 
("Electrical apparatus for line telephony or line tele graphy... -- Other apparatus, for carrier-current 
line systems or for digital line systems... – Other"), 8517 80 90 ("Electrical apparatus for line 
telephony or line telegraphy... -- Other apparatus ... – Other"), 8525 20 99 ("Transmission apparatus 
for radio-telephony, radio-telegra phy, radio-broadcasting or televi sion... -- Transmission apparatus 
incorporating reception apparatus... --- Other") a nd 8528 12 91 ("Reception apparatus for television, 
whether or not incorporating radio broadcast recei vers or sound or video recording or reproducing 
apparatus ... -- Colour ... --- Other ... ---- Other ... ------ Apparatus with a microprocessor-based device 
incorporating a modem for gaining access to the Internet, and having a function of interactive information exchange, capable of receiving televisi on signals ('Set-top boxes with a communication 
function')."
1240 
7.959  The United States notes that the latter tariff item number 8528 12 91, in particular, describes 
"[a]pparatus with a microprocessor-based device in corporating a modem for gaining access to the 
Internet, and having a function of interactive info rmation exchange, capable of receiving television 
signals" similar to the narrative description in the Annex to the EC Schedule.  The United States 
argues that the "devices in question" are "micr oprocessor-based devices, incorporating a modem for 
gaining access to the internet, and having a function of interactive information exchange" that are 
"also capable of receiving television signals" due to their ability to "enable a television set to receive 
and decode digital tele vision (DTV) broadcasts".1241   
7.960  The United States argues that the language "whe ther or not incorporating radio broadcast 
receivers or sound or video recording or repr oducing apparatus" in HS1996 heading 8528 does not 
mean that set top boxes incorporating a device pe rforming a recording or reproducing function are 
excluded from duty-free coverage.1242 
7.961  The European Communities submits that a claim in connection with the subheadings and their 
descriptions has not been clearly established, as the customs classification rules are relevant and have 
not been referred to.1243   
7.962  It appears that the United States has turned to its analysis in respect of the concession in the 
STBCs narrative description, including its assessment of the ordinary meaning of the terms of that 
concession, in concluding that the products fall w ithin the scope of the concessions under tariff item 
                                                      
1240 United States' first written submission, para. 10 9, referring to EC ITA Schedule Modifications; 
Committee on Market Access, Rectifications and Modifications of Schedules, Schedule CXL – European 
Communities, G/MA/TAR/RS74 (15 December 2000 ) (Exhibit US-26); United States' second written 
submission, para. 63. 
1241 United States' first written submission, para. 110; United States' second written submission, 
para. 63. 
1242 United States' second written submission, para. 64. 
1243 European Communities' second oral statement, para. 47.  The European Communities notes in 
addition, that the United States alone has raised a claim concerning the descriptions, while the other complainants consider the codes may only provide context for interpreting the narrative description (European 
Communities' second oral statement, para. 49). WT/DS375/R 
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  numbers 8517 50 90, 8517 80 90, 8525 20 99, and 8528 12 91.  The United States has not offered any 
analysis of the ordinary meaning to be attribut ed to the terms of the tariff item numbers 8517 50 90, 
8517 80 90, 8525 20 99, and has summarily limited its assessment of the terms of 8528 12 91. 
Moreover, the United States has not considered in lim ited fashion the location of the concession in its 
context, including its surrounding provisions.
1244  Finally, in the Panel's view, the United States has 
asserted with only limited argumentation that the devices in question fall within the scope of the four 
identified tariff lines. 
7.963  For all the foregoing reasons, the Panel considers that the United States has failed to meet its 
burden to establish a prima facie case of violation, with respect to its claims concerning tariff item 
numbers 8517 50 90, 8517 80 90, 8525 20 99 and 8528 12 91 in the EC Schedule. 
(c) Do the set top boxes which are the subject of this  dispute fall within the scope of the narrative 
description in the Annex to the EC Schedule? 
7.964  Now that we have determined the scope of the concession, i.e., the type  of products covered 
by the European Communities' obligations under Article II of the GATT 1994 to provide duty-free 
treatment, we must determine whether the products  raised by the complainants in the joint Panel 
request fall within that description such that they would be entitled to the duty-free treatment required 
by the concession. 
7.965  We recall our conclusion in paragr aph 7.830 above that the products at issue in this dispute 
are (i) electronic apparatuses that enable a video mo nitor or television to receive and decode digital 
television broadcasts from a communication channel, which are capable of connecting to the Internet 
through an in-built WLAN, ISDN or Ethernet device in order to have an interactive information 
exchange; and (ii) electronic apparatuses that meet the terms of the description in CNEN 2008/C 112/03 and otherwise incorporate a device performing a recording or reproducing 
function, such as a hard disk or DVD drive. 
7.966  The complainants argue that all such products fall within the scope of the STBCs narrative 
description in the Annex to the EC Schedule.  Th e European Communities, on the other hand, argues 
that the products do not communicate using a  "mode m" and are thus not within the scope of the 
STBCs narrative description.  Additionally, the Eu ropean Communities argues that some of the 
products raised by the complainants  have additional features and func tionality that make them entirely 
new products that do not fall within the scope of  the STBCs narrative description.  Therefore, 
according to the European Commun ities, these products are not covere d by the obligation to provide 
duty-free treatment to certain set top boxes in the Annex to its Schedule. 
7.967  As a general proposition, if the set top boxes at is sue are determined to be within the scope of 
the STBCs narrative description concession in the A nnex to the EC Schedule, then the European 
Communities is obliged to provide them with dut y-free treatment.  Once the Panel has reached a 
conclusion on whether the products are within the sc ope of the concession, the next step would be to 
compare the obligation in the EC Schedule with  the treatment provided for in the European 
Communities' measures in order to determine whether that treatment is less favourable than and levies 
duties in excess of that set forth in its schedule,  such that it would be in contravention of its 
                                                     
 
1244 We recall, in our assessment of the complain ants' claim in connection with CN8471 60 90, we 
determined that the HS1996, including relevant Chapter and Section Notes and interpretative materials, may 
provide relevant context for interpreting a Member's co ncessions that are based on  the HS.  See para. 7.636 
above, referring to Appellate Body Report on EC – Chicken Cuts , para. 199; Appellate Body Report on 
China - Auto Parts , para. 151.  WT/DS375/R 
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  obligations under Articles II:1(a) and II:1(b) of the GATT 1994.  We begin our analysis, therefore 
with the question of whether the products at issu e are "set top boxes which have a communication 
function: a microprocessor based device incorporatin g a modem for gaining access to the Internet and 
having a function of interactive information exchange ."  We will conduct our analysis pursuant to our 
understanding of the scope of the concession as set out above. 
(i) Arguments of the parties 
7.968  The European Communities  contends that the products at issue fall outside of the scope of 
the STBCs narrative description in the Annex of th e EC Schedule for two main reasons.  First, 
because they do not incorporate "modems" as that term  is used in the concession.  Second, because by 
virtue of additional features they have become a product other than a set top box.  
7.969  The complainants  are of the view that nothing in the STBCs concession allows the European 
Communities to exclude from duty-free treatment set top boxes with a communication function merely because they gain access to the Internet using "particular types of modems" that use RJ-45 
connectors
1245 or because they incorporate a hard disk or other recording or  reproducing apparatus.1246  
Do products which incorporate ISDN, WLAN, and Ethernet technology incorporate modems 
for gaining access to the Internet?  
7.970  The complainants  argue that devices which incorporate communication devices with ISDN, 
WLAN, and Ethernet technology are devices which "incorporate a modem for gaining access to the 
internet and having a function of interactive information exchange."1247   
7.971  The complainants explain that ISDN-based devices uses pulse code modulation to convert 
analogue to digital signals at the transmitter ("modul ate"), and to convert back ("demodulate") digital 
signals to analogue at the receiver end via pulse c ode modulation that samples the amplitude of an 
analogue signal in uniform intervals.  The compla inants submit that an ISDN modem, also known as a 
"terminal adapter", essentially serves as a protocol  converter to interface non-ISDN devices through 
variation of the electrical signal as the informati on to be transmitted on the communication medium 
varies.1248  Through this process, in which the electric signal is varied, the complainants argue that 
both voice (via analogue) and digital signals are transferred over an ISDN medium.1249   
7.972  As concerns WLAN technology, the complainan ts submit that WLAN achieves transmission 
and receipt of data by varying the characteristics of the electrical signal in the form of a radio frequency signal.  Under the most common standards,  which they refer to as IEEE 802.11 (including 
                                                     
 
1245 United States' first written submission, para. 104  Japan's first written submission, paras. 368; 
Chinese Taipei's first written submission, paras. 365 and 437. 
1246 United States' first written submission, para. 97; Japan's first written submission, paras. 368 and 
384; Chinese Taipei's first written submission, paras. 365 and 437. 
1247 United States' first written submission, para. 100 ; Japan's second written submission, para. 218; 
Chinese Taipei's first written submission, para. 419; complainants' response to Panel question No. 70. 
1248 Japan's first written submission, paras 390-391, footnote 181; United States' first written 
submission, para. 100, footnote 146; and Chinese Taipei's first written submission, para. 419, footnote 212 (all 
referring to Newton's Telecom Dictionary  (24th ed. 2008), p. 922) (Exhibits US-68; JPN-11). 
1249 Complainants' response to Panel question No . 72 (referring to IT U-T Recommendation G.711: 
General Aspects of Digital Transmission Systems. Terminal Equipments: Pulse Code Modulation of Voice 
Frequencies (Exhibit US-109)). WT/DS375/R 
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  802.11b and 802.11a), the complainants argue that th e transferred information is modulated at the 
transmitter side and demodulated at the receiving end.
1250   
7.973  The complainants submit that Ethernet achieves transmission and receipt of data via different 
standards that vary the electrical characteristics of the signal via pulse amplitude modulation, in 
particular a five-level PAM constellati on at the transmission and receiver side.1251  The United States 
also emphasizes that set top boxes with an Ethern et "modem" may connect via an RJ-45 connector 
directly to a network port in a user's wall, in th e same manner as a cable modem with RF connector 
linking to a cable port in the wall.1252   
7.974  In addition, the complainants note the European  Communities' view that cable modems fall 
within the terms of the scope of the STBCs narra tive description.  Given the functionality of ISDN, 
WLAN and Ethernet devices discussed above, and th e European Communities' acceptance that set top 
boxes incorporating "cable modems" fit within the scope of the STBCs narrative description, the 
United States argues that there is no rationale for considering cable modems as "modems", but 
excluding ISDN, WLAN or Ethernet devices, wh ich also modulate and demodulate signals.1253   
7.975  The European Communities  argues that only digital-to-analogue telephone-based modems 
and cable modems fulfil the conditions of pe rforming digital-to-analogue modulation and 
demodulation and modulating for the purposes of "direct" transmission and communication with the 
Internet, and are thus "modems" within th e meaning of the STBCs narrative description.1254 
7.976  The European Communities argues that ISDN-based  devices do not constitute "modems" 
because these device do not perform digital-to-anal ogue modulation and demodulation to connect to 
the Internet, but instead perform digital-to-digital transmission only.  In addition, the European 
Communities submits that ISDN functions through a terminal adapter.1255  In contrast, the European 
                                                      
1250 Complainants' response to Panel question No. 72. The complainants specify that 802.11b supports 
DBPSK, DQPSK modulation schemes, which allow for transmissions via binary constellation (they refer to: 
IEEE Std 802.11b – 1999. Part 11: Wireless LAN Medi um Access Control (MAC) and Physical Layer (PHY) 
specifications: Higher-Speed Physical Layer Extension in the 2.4 Ghz Band, p. 42 (Exhibit US-111)). The complainants specify that 802.11a supports BPSK, QPSK, 16-QAM and 64-QAM modulation schemes, which 
rely on a 64-point constellation (they refer to: IEEE Std 802.11a-1999 - Supplemen t to IEEE Standard for 
Information Technology, p. 24 (Exhibit US-112)). See also United States' first written submission, para. 100 
(referring to Wireless Broadband Modems, International Engineering Consortium, www.iec.org (Exhibit US-
69)).   
1251 Complainants' response to Panel question No. 72.  The complainants specify that Ethernet relies on 
different standards (802.3 IEEE), including Ethernet, Fast Ethernet, Gigabit Ethernet, and 10 Gigabit Ethernet.  
The complainants submit that Fast and Gigabit Ethernet use Pulse Amplitude Modulation (PAM) to handle information transmission.  The compla inants refer to the follo wing sources:  IEEE St d 802.3-2005, Section 2, 
Part 3: Carrier Sense Multiple Access with Collision Detection (SCMA/CD) access method and physical layer 
specifications (Exhibit US-110), p. 426, Section 3, Part 3, pp. 149-150, Section 2, Part 3, Figure 32-4, p. 42. 
1252 See Exhibits US-124 and US-125 (manuals for set top boxes providing instructions on connecting 
an RJ-45 interface to a network port in the wall). 
1253 United States' first written submission, paras. 100-101; United States' second written submission, 
para. 53; United States' second oral statement, para. 22 (Exhibits US-65; US-140). 
1254 European Communities' response to Panel question Nos. 149, 150; European Communities' 
comments on complainants' responses to Panel question No. 150. 
1255 European Communities' response to Panel question No. 73; European Communities' second written 
submission, para. 225 (referring to Overview of ISDN  lines, available at http://www.wifinotes.com/computer-
networks/how-ISDN-works.html (Exhibit EC-107, p. 1-2); How ISDN works  (available at 
http://www.smartcom puting.com/articles/archiv e/R0501/25R-1/25R01.pdf? guid= and http://www.teach-
ict.com/as_a2/topics/telephone_systems/telephone_systems/how_isdn_works.htm (Exhibit EC-107, pp. 3-5)).  WT/DS375/R 
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  Communities argues that telephone-based modems use analogue technology via sending and receiving 
data in the form of audible tones transferred by te lephone lines, which is converted back into digital 
data.  As a reflection of distinctions in these technologies, the European Communities submits that 
traditional modems and ISDN technolog y were classified until 2006 in different parts of its domestic 
nomenclature: CN: 8517 50 10 for modems (apparatus for carrier-current line systems) and 8517 50 
90 for digital line systems.  In light of this treat ment, the European Communities argues that, it is hard 
to accept that ITA participants decided not to distinguish between these two technologies in the 
concession.
1256 
7.977  Furthermore, the European Communities argues that Ethernet and WLAN also do not 
constitute "modems" under the concession, because they do not perform digital-to-analogue 
modulation and demodulation1257, and do not connect directly to the Internet, but connect only after 
connecting first to an external modem.1258  It argues that WLAN and Ethernet are thus not modems 
but "devices for connection to an intern al network" via an "external modem". 
Are the products at issue which incorporate a dditional features still set top boxes of a type 
covered by the STBCs Concession?  
7.978  The complainants  argue that the addition of features such as video recording does not change 
the fact that the product is a set top box with a communication function.1259  T h e  United States  
contends that the European Communities' positi on that the recording function can somehow be 
divorced from the communication function, such th at a device could be described as 80 per cent 
recording and 20 per cent communication is utterly flawed.1260  Chinese Taipei  and Japan submit 
that set top boxes which have a communication function " sometimes include  a hard disk to record 
television programmes, download software from a di gital television provider and to perform other 
ancillary applications enabled by  the digital television provider".1261  Japan is of the view that STBCs 
concession should include not only set top boxes capable of solely  performing a communication 
function, but also STBCs which perform additional  functions, such as recording or reproducing, in 
addition to the communication function.1262 
                                                                                                                                                                     
The document explains the basic features of ISDN, including the terminal adapter; Cisco's How ISDN works , 
available at http://www.cisco.com/en/US/docs/internet working/technology/handbook/ISDN.html (Exhibit EC-
107, pp. 6-12); Beginner's Guide to ISDN , available at http://www.seg.co.uk/products/isdnover.htm (Exhibit 
EC-107, pp. 13-18); How it works: science and technology , by Wendy Horobin, Marshall Cavendish 
Corporation, 3rd ed., published by Marshall Cavendish, 2003, pp. 1473 et seq. 
1256 European Communities second written submission, para. 227. 
1257 European Communities' response to Panel question No. 151; European Communities' comments on 
complainants' responses to Panel question No. 149; see also European Communities' second written submission, 
para 228; European Communities' re sponse to Panel question No. 73. 
1258 European Communities' first written submission, para. 265; European Communities' response to 
Panel question No. 73; European Communities' second written submission, para. 228. 
1259 United States' second written submission, para. 38.   
1260 United States' second written submission, para. 40 .  With respect to the products at issue, the 
United States refers to the European Communities' own m odification of its schedule in 2000 and several BTIs 
from national customs authorities which it argues demonstrate that the European Communities itself 
acknowledges that set top boxes which also have recordin g devices incorporated into them fall within the scope 
of the STBCs narrative description (United States' firs t oral statement, para. 15 ; United States' second written 
submission, para. 41; Exhibits US-26 and US-28). 
1261 Chinese Taipei's first written submission, para. 15, Japan's first written submission, para. 345  
(emphasis added). 
1262 Japan's first written submission, para. 382. WT/DS375/R 
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  7.979  The European Communities  argues that the products at issue fall outside the scope of the 
STBCs narrative description because, the main featur es of certain set top boxes make them "digital 
video recorders" or "personal video recorders", whic h are "completely different" than what is covered 
by the concession.
1263  Generally, the European Communities argues that certain set top boxes when 
considered objectively, are not eligible for duty-fr ee treatment, such as a set top box that performs a 1 
per cent "communication" function and 99 per cent "other" functions.1264  In response to the evidence 
presented by the United States, the European Commun ities submits that even a cursory review of the 
products discussed in the BTIs presented by the co mplainants would reveal that they are no longer 
considered to be "set top boxes", as their main f eatures and functionality make them completely new 
products that do not fall within the scope of the STBCs concession.1265  
7.980  The European Communities argues that a determination of whether a "set top box" is 
excluded from duty-free treatment because of its add itional functionality is not done merely based on 
the presence of a hard disk, but rather based on a consideration of all the characteristics of those 
products.1266  The European Communities submits that it  may determine on the basis of an objective 
assessment of all the objective characteristics of a set top box with recording or reproducing 
capabilities, that such product is prima facie  classifiable under the terms of both CN heading 8528, as 
"[r]eception apparatus for television, whether or not  incorporating radio-broadcast receivers or sound 
or video recording or reproducing apparatus", a nd CN heading 8521, as "[v]ideo recording or 
reproducing apparatus, whether or not incorporating a video tuner".1267  In accordance with GIR 1 and 
Note 3 to Section XVI of the HS1996, the Eu ropean Communities argues it would be necessary to 
determine the "principal function" of the device.1268  By way of example, the European Communities 
argues that a set top box with video recording or re producing capabilities, which is also equipped with 
a video tuner for the reception of TV signals, and software that automatically downloads TV 
programming, may be considered principally a r ecording or reproducing apparatus, however, only 
when considering the presence of electronics for reco rding, playback and recording buttons, remote 
control, absence of a screen, and after assessing wh ether recording or reproducing capabilities will be 
an additional/secondary feature.1269  On the other hand, if it were de termined that the hard drive was 
used for saving emails or attachments, or if th e product were equipped with a keyboard for an easy 
sending of emails, as opposed to use of the numeric  keypad on a remote control primarily oriented 
toward recording functionality, the European Comm unities argues this would be a factor suggesting 
that the communication function prevails over recording capability.1270  
(ii) Consideration by the Panel 
7.981  We recall our conclusion in paragr aphs 7.851-7.852, that a "set top box" is an apparatus or 
device that processes an incoming signal from an external signal source in a manner that can be 
presented on a display unit, such as a video monitor or television set.  This apparatus need not be 
                                                      
1263 European Communities' first written submission, para. 260, referring to Exhibits EC-43, EC-44, 
EC-45, Exhibit US-28. 
1264 European Communities' first written submission, paras. 258-260; Exhibit EC-46. 
1265 European Communities' first written submission, para. 260 making reference to Exhibit US-28 and 
the confidential version of the BTI in Exhibit EC-43. 
1266 European Communities' first written submission, para. 286. 
1267 European Communities' second written submission, para. 239. 
1268 European Communities' response to Panel question No. 85. 
1269 European Communities' second written submission, para. 243.  As an example, the European 
Communities refers to a product which describes itsel f as a Digital Video Recorder, and has a product 
instruction manual which describes how to record or wa tch movies, without reference to Internet functionality 
(Exhibit EC-44). 
1270 European Communities' response to Panel question No. 85.  WT/DS375/R 
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  designed to be placed on top of the display un it, and may handle one or several functionalities, 
including: receiving and decoding television broadcast s, whether from a satellite, cable or Internet 
source; converting digital TV br oadcasts to function on older an alogue TV sets; enabling two-way 
interactive connectivity with digita l cable television broadcasts or via the Internet; or even recording 
of digital video content.  
7.982  We also recall our conclusion in paragraphs 7. 861 that the use of the terms "which have a 
communication function" places an important em phasis on the communication functionality in 
defining the particular type of set top box that is  covered under the concession.  Although all such set 
top boxes must have a communication function, we also found that the terms of the concession did not 
convey the meaning such that coverage  is limited to set top boxes with only a communication 
function.  However, we did note that there may co me a point when, due to additional functionality, a 
particular product would not, in essence, meet the description of a "set top box which ha[s] a communication function" and, therefore, would not be included within the scope of the STBCs 
narrative description.   
7.983  We further concluded in paragra phs 7.880 and 7.886 that the text following the colon, in the 
narrative description, expands upon the description provided by the antecedent text "Set top boxes 
which have a communication function".  We conclude d that the terms of the STBCs concession in the 
Annex to the EC Schedule extends to a "set top box" that fulfil all the following requirements:  it is 
microprocessor-based; incorporates a "modem", and is capable of gaining access to the Internet and 
handling two-way interactivity or in formation exchange.  In the cont ext of this concession, the term 
"modem" should not be interpreted in an overly narro w or technical sense, but should be informed by 
the clear emphasis on functionality. Thus, the term  should not be interpre ted to refer only to 
components that connect to the Internet directly , or perform digital-to-analogue signal conversion 
over a telephone line.  Interpreting the concession in context and in light of the clear focus on 
functionality, we found that devices that incorporate, or have built in, technologies to access the 
Internet and provide interactive information excha nge may fall within the scope of the concession.   
7.984  The complainants have presented evidence that  devices based on ISDN, WLAN and Ethernet 
technology connect set top boxes to a communication lin e.  We consider that it is clear that such 
devices incorporate, or have built in, technologi es to access the Internet and provide interactive 
information exchange. We therefore conclude that set top boxes that otherwise meet the terms of the 
concession, and that incorporate ISDN, WLAN, and Et hernet technology fall within the scope of the 
concession.   
7.985  In reaching our conclusions, we do note that we  have not relied on technical definitions of 
terms such as "modems", "pulse code modulation" or  "pulse amplitude modulation" to either include 
or exclude products, as the Eur opean Communities has raised.
1271  Rather, we have based our 
conclusions on the ordinary meaning of the terms us ed in the concession considered in context and in 
light of their object and purpose.   
7.986  Finally, with respect to set top boxes whic h have a communication function which also 
incorporate a recording device or hard disk, we  recall our conclusion that the STBCs narrative 
description is not limited to products that only ha ve a communication function.  However, we also 
recall that additional functionality may, at a certa in point, result in a product not meeting the 
description of a "set top box which ha[s] a communi cation function".  Such a determination about 
whether a product is or not such a set top box must be made based on a case-by-case analysis of the objective characteristics of a particular product as it is presented at the border. 
                                                     
 
1271 European Communities' second written submission, para. 231-232. WT/DS375/R 
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  (d) Does the CN, in conjunction with CNEN 2008/C 112/03, provide for duties on products 
identified by the complainants which are in excess of those set forth in the EC Schedule? 
7.987  We recall our reasoning in para graphs 7.97-7.102 above that Article II:1(b) requires that 
Members shall not apply ordinary customs duties in  excess of those provided for in the Schedule.  
Therefore, in this section we will compare the tari ff treatment provided to the products identified by 
the complainants under the challenged measures with that provided for in the STBCs narrative 
description in the Annex to the EC Schedule to determine whether the challenged measures provide 
for duties being applied which are in excess of tho se set forth in the EC Schedule, such that the 
European Communities is in breach of its ob ligations under Article II:1(b) of the GATT 1994.
1272 
7.988  The complainants argue that, through the measures at issue -- Council Regulation 
No. 2658/87, as amended and CNEN 2008/C 112/03  -- the European Communities does not provide 
duty-free treatment to set top boxes which have a communication function.   
7.989  We recall from paragraph 7.808 above that Council Regulation No. 2658/1987, as amended, 
sets forth in CN code 8528 71 1 the duty-free CN code  in which to classify certain "Apparatus with a 
microprocessor-based device incorporating a modem for gaining access to the Internet, and having a 
function of interactive information exchange, capable   of receiving televisions signals ('set-top boxes 
with communication function')".  In addition, the CN establishes dutiable CN codes 8521 90 00, 
applicable to "[v]ideo recording or reproducing appa ratus, whether or not incorporate a video tuner", 
which sets a 13.9 per cent duty.  The CN also establishes CN codes 8528 71 19 and 8528 71 90 
without additional description, which each set a duty rate of 14 per cent. 
7.990  In paragraph 7.822 above, under CNEN 2008/C 112/03, we concl uded that products may only 
qualify under duty-free CN code 8528 71 13 to the exte nt they meet the terms of the CNEN generally.  
However, set top boxes that do not have a built-in mo dem, as described in the provisions, or otherwise 
incorporate ISDN, WLAN or Ethernet technology, are excluded.  A set top box that qualifies as a 
product without a screen which are reception apparatu s for television, but which does not incorporate 
a video tuner is also excluded.  Finally, any set top box that contains a device performing a recording 
or reproducing function, such as a hard drive or DV D drive, will also be excluded.  Products that are 
in part described by CN code 8528 71 13, but do not meet the requirements enumerated in this 
paragraph are instructed to be classified under othe r codes under heading 8528, subject to 14 per cent 
duties, or otherwise under CN code 8521 90 00 and subject to 13.9 per cent duties. 
7.991  We recall that, in the Annex to its Schedule, the European Communities agreed to bind and 
eliminate duties on set top boxes that fall within th e scope of the STBCs narrative description.  We 
also note that the CNEN requires that set to p boxes which incorporate a device performing a 
recording or reproducing function, as well as those which utilise ISDN, WLAN or Ethernet 
technology be classified outside the scope of the duty-free CN code 8528 71 13.  The CNEN by 
directing national customs authorities to classify th ose set top boxes in dutiable CN code 8521 90 00 
or in dutiable CN codes 8528 71 19 and 8528 71 90 under which the CN imposes duties of 13.9 per 
cent and 14 per cent,  respectively, requires the im position of duties on at least some products which 
                                                      
1272 As noted in paragraph 7.102, prior panels have r easoned that a measure which is inconsistent with 
the obligation in Article II:1(b) to provide duty treatment not in excess of that set forth in a Member's schedule 
necessarily implies an inconsistency with the obligati on in Article II:1(a) not to provide less favourable 
treatment to imported products than that set forth in a Me mber's schedule.  Therefore,  we will begin our analysis 
of whether the tariff treatment provided for in the European Communities' measures is consistent with Article II 
of the GATT 1994 with an analysis of the obligation in Article II:1(b).  Subsequently, we will move on to 
address the complainants' claim that the European Communities is also acting inconsistently with the obligation 
in Article II:1(a).  WT/DS375/R 
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  fall within the scope of the STBCs narrative descr iption.  Therefore, the CNEN and CN operating 
together result in the imposition of duties in excess of those provided for in the European 
Communities' Schedule and are inconsistent  with Article II:1(b) of the GATT 1994. 
(e) Does the CN, in conjunction with the CNEN 2008/ C 112/03 provide less favourable treatment 
than that set forth in the EC Schedule? 
7.992  We recall from paragraph 7.102 above that, if we were to determine that the applied rate 
exceeds the bound duty rate, then, in accordance with the aforementioned approach, the application of 
customs duties would be "in excess" of those provided for in the EC Schedule, and would 
consequently also violate Article II:1(a) of the GATT 1994 by according to imports of the products at 
issue treatment less favourable than that provided for those products in accordance to the applicable 
concession in the EC Schedule. 
7.993  Accordingly, for those products discussed above that are classified under a dutiable heading, 
that should otherwise be accorded duty-free treatment  in respect of the concession for "Set top boxes 
which have a communication function: a micropr ocessor based device incorporating a modem for 
gaining access to the Internet and having a function of interactive information exchange" as provided 
for in the EC Schedule, we conclude that the application of duties on these products would 
consequently result in treatment less favourable in violation of Article II:1(a) of the GATT 1994. 
5. Whether the European Communities' actions concerning the delivery of opinions with 
respect to the proposed amendments to th e Explanatory Notes contained in 2008/C 
112/03 are inconsistent with Articles X:1 and X:2 of the GATT 1994 
(a) Summary of main issues for the Panel's determination 
7.994  The Harmonized Commodity Description and Coding System (the "HS")
1273 is supplemented 
by Explanatory Notes, known as the "HSEN".1274  Similarly, the European Communities' Combined 
Nomenclature (the "CN") is supplemented by its own Explanatory Notes, known as the Explanatory 
Notes to the Combined Nomenclature ("CNENs").1275  CNENs are published by the Commission in 
the Official Journal of the European Union ("EU Official Journal").  In addition, the Commission 
regularly publishes a consolidated version of all CNENs incorporating ame ndments published in the 
EU Official Journal up to a certain date.  All CNEN s published after that date remain in force and are 
incorporated in a subsequent consolidated version.1276     
                                                      
1273 The HS, as amended, is set out as an Annex to the International Convention on the Harmonized 
Commodity Description and Coding System (the "HS Convention"), done at Brussels on 14 June 1983 (Exhibit 
EC-119).  See, in particular, Article s 1(a) and 2 of the HS Convention. 
1274 However, according to Article 1(a) of th e HS Convention, as noted by the Panel in 
EC - Chicken Cuts , HSEN are not binding and do not form part of the HS per se .  On the other hand, as also 
noted by the Panel in EC – Chicken Cuts , the WCO has indicated that HSEN "are taken into consideration in 
conjunction with the legal texts when interpreting the HS." (Panel Report on EC – Chicken Cuts , para. 7.220).  
See also Appellate Body Report on EC – Chicken Cuts , para. 224. 
1275 Throughout these Reports we will use the abbreviation "CNENs" to indicate Explanatory Notes to 
the Combined Nomenclature in general, as a group.  Th e abbreviation "CNEN" will be used with reference to a 
particular Explanatory Note to the Combined Nomenclature. 
1276 The consolidated version of the CNENs as published in the EU Official Journal on 30 May 2008 
(OJ 2008/C 133/01) specifies in its foreword that: "[t]hi s version of the CNENs includ es and, where appropriate, 
replaces those published in the Official  Journal of the European Union, C se ries, up to 11 Ap ril 2008.  CNENs WT/DS375/R 
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  7.995  On 7 May 2008, the Commission published in the EU Official Journal an amendment to a 
CNEN regarding the classification of "set-top bo xes with communication function" of duty-free 
CN2007 code 8528 71 13 ("STBCs").
1277  This amendment explains inter alia  the scope of coverage 
of that code and provides that among the conditions required for classification under this code are: (1) 
the presence of a "video tuner"; (2) the presence of  a modem, but not including devices that it states 
perform a similar function but which do not modul ate or demodulate signals, such as ISDN-, WLAN- 
or Ethernet connectivity; and (3) the absence of  a device performing a recording or reproducing 
function such as a hard disk or a DVD drive.  As  with other CNENs, this amendment started as a 
Commission proposal that was discuss ed in the Customs Code Committee.1278 As explained below, 
this proposed amendment is at the heart of the GATT 1994 Article X claims.   
7.996  Although the three complainants made a joint request for the establishment of this Panel, 
which includes inter alia  joint claims under Article X of th e GATT 1994, Japan did not pursue these 
particular claims in its submissions.  With regard to  the Article X claims, the joint panel request states 
as follows: 
"[W]ith respect to STBs with a communication function, the Tariff and Statistical 
Nomenclature Section of the Customs Code Committee delivered favourable opinions with respect to the proposed amendments  to the Explanatory notes contained in 
2008/C 112/03 in October 2006 and May 2007, respectively.  It did not publish the amended explanatory notes in the EC  Official Journal until 7 May 2008.  
Furthermore, EC member States were applying duties to STBs using the approach 
specified in 2008/C 112/03 prior to 7 May 20 08.  We consider that these actions are 
inconsistent with the EC's obligations  under Articles X:1 and X:2 of the GATT 
1994."
1279  
7.997  The United States  argues that the European Communiti es violated Article X:1 of the GATT 
1994 in that it "made effective" certain CNEN am endments in October 2006 and May 2007, that is, 
well before their publication in the EU Official J ournal on 7 May 2008.  In addition, the United States 
argues that the European Communities violated Article X:2 of the GATT 1994 since it used CNEN 
amendments to apply duties on certain products before officially publishing those CNEN amendments.
1280  The United States explains that the rele vant CNEN amendments are those voted by 
the Customs Code Committee in October 2006 and Ma y 2007.  More particularly, in October 2006 
the Customs Code Committee delivered a favourab le opinion on a proposed amendment to a CNEN 
providing that STBCs with ISDN-, WLAN-, or Ethern et connectivity were to be excluded from duty-
free CN code 8528 12 91 (which later became 8528 71 13 under the CN2007) and that STBCs falling 
in that duty-free CN code must incorporate a video tuner.  STBCs with such connectivity or lacking a 
video tuner would be subject to 14 per cent duties.  In May 2007, it argues, the Customs Code 
                                                                                                                                                                     
published in the Official Journal, C series, subsequent to that date remain in force and will be incorporated in the 
CNENs when revised". 
1277 We note that the terms of CN code 8528 71 13 refer to "set top boxes with communication 
function" while the concession in the EC Schedule is for "set top boxes which have a communication function".  
Here, we will refer to "set top boxes with communication function" since those are the terms of CN code 8528 71 13 as reflected in the CNEN  at issue here; CNEN, OJ 2008/C 112/03, 7 May 2008.  The text of that 
CNEN itself clarifies that "the Explanatory Notes to the Combined Nomenclature of the European Communities 
are amended
 as follows: On page 335, the following text is inserted : [...]; On page 339, the following text is 
inserted [...]." (emphasis added); (E xhibits US-30; TPKM-28). 
1278 See paragraphs 7.46-7.47 above. 
1279 Joint panel request, WT/DS375/8, DS376/8, DS377/6, p.5. 
1280 See, for instance, United States' first written submission, paras. 112-119; United States' second 
written submission, paras. 120 and 124.  WT/DS375/R 
 WT/DS376/R 
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  Committee approved a second amendment to the CNEN, providing that STBCs with a "recording 
function" would be "excluded from" duty-free CN  code 8528 12 91 and subject to a 13.9 per cent 
duty.  Chinese Taipei  has advanced similar arguments under its GATT 1994 Article X claims.  It 
identifies the proposed amendments to the CNEN in its submissions as "draft CNEN".
1281  
7.998  The European Communities , however, submits that the CNEN amendments cannot be 
considered "laws, regulations, judi cial decisions or administrative rulings of general application" 
under Article X:1 nor "measures of general applicat ion" under Article X:2 "in particular, because of 
the factual features of the CNEN such as their non- binding nature combined with their essentially and 
inherently informative character".1282  Furthermore, the European Communities strongly emphasizes 
the "draft" character of the CNEN amendments, being merely "preparatory" acts, i.e. draft measures.  
The European Communities submits that draft CNEN  amendments cannot be "made effective" or 
"enforced" within the meaning of Articles X:1 a nd X:2 of the GATT 1994.  In its view, the CNEN 
amendments were "made effective" upon adopt ion by the Commission and their subsequent 
publication in the EU Official Journal.  Since the CNEN amendments were only adopted by the 
Commission on 29 April 2008 and published in the O fficial Journal a few days later on 7 May 2008, 
there is no Article X:1 violation.  The European Communities also argues that the CNEN amendments 
were not enforced before official publication in  the EU Official Journal and that the evidence 
submitted by the complainants in support of this a llegation is not satisfactory.  Accordingly, the 
European Communities argues, there is no Article X:2 violation either.1283   
(b) The measures at issue 
7.999  The Panel must first determine which measures are at issue and whether such measures are 
within the Panel's terms of reference.  Once we ha ve made this determination, we will proceed to 
analyse the Article X claims per se . 
7.1000  The United States  and Chinese Taipei identify in their joint panel request as the measures at 
issue two "proposed amendments" to the CNEN for which the Customs Code Committee delivered 
"favourable opinions" in "October 2006 and May 2007 respectively".1284   
7.1001  The first measure identified by the two comp lainants is the "Draft CNEN on Satellite 
receivers with built-in modem" as voted upon by  the Customs Code Committee in October 2006 and 
which received a "favourable opinion".1285  The European Communities explains that discussions on 
issues pertaining to the classification of set-top b oxes were held in the Customs Code Committee 
during 2005 and that, following these discussions, the Commission submitted a document (doc. 
TAXUD/0667/2006) in May 2006 as a "preliminary draft" for discussion (but not for a "vote").1286 
According to the European Communities, the purpo se of these discussions was to seek the input and 
opinions of the EC member States on the classification of these products.  During the course of these discussions, the initial text of document TAXUD/ 0667/2006 was revised and became document 
TAXUD/0667/2006 Rev. 2, then document TAXUD/ 0667/2006 Rev. 3, reflecting the comments of 
                                                     
 
1281 Chinese Taipei's first written submission, paras. 371-372; 374; 459-462. 
1282 European Communities' first written submission, para. 310. 
1283 European Communities' first written submission, paras. 306-309; 316. 
1284 See para. 7.996 above. 
1285 "Draft CNEN on Satellite receivers with built- in modem" (doc. TAXUD/0667/2006 Rev 3), see 
point 3.7 and Annex VI in Customs Code Committee (407th meeting) (Exhibits US-27; TPKM-30).  The text of 
document TAXUD/0667/2006 Rev 2 is also available in Exhibits EC-54 and EC-90. 
1286 "Draft Explanatory Notes: Satellite receivers" (d oc. TAXUD/0667/2006), s ee point 4.13 (pages 7-
8) in Customs Code Committee (395th meeting) (Exhibits EC-90; US-74); (also cited in European Communities' 
first written submission, para. 301, fn. 200).   WT/DS375/R 
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  the EC member States. It was this latest versi on of the proposed amendment to the CNEN that the 
Commission submitted to the Customs Code Committ ee in October 2006 for a vote. This proposal 
contained explanatory notes for different interrela ted CN codes, i.e. for CN codes 8528 12 90 to 
8528 12 95 ("video tuners"); 8528 12 91 ("set-top boxes with a communication function")
1287; and 
8528 12 98 ("other").1288   
7.1002  The European Communities explains that the purpose of the October 2006 version was to 
clarify the scope of certain CN codes related to STBCs for which no Explanatory Notes yet existed.  
However, its main focus was on duty-free CN code 8528 12 91 for "set-top boxes with a 
communication function", which became 8528 71 13 in the CN2007.  This proposal for amendment 
specified, inter alia , that "set-top boxes with a communication function" from CN code 8528 12 91 
did not include set-top boxes with Ethernet-, WL AN- or ISDN- connectivity nor set-top boxes which 
incorporate a device performing a recording or repro ducing function such as, for example, a hard disk 
or a DVD drive.  When submitted for a vote in October 2006, the Customs Code Committee delivered 
a favourable opinion on the exclusion of set-top boxes with Ethernet, WLAN or ISDN.1289  The voting 
on the exclusion for set-top boxes incorporating a device performing a recording or reproducing function was postponed.
1290   
7.1003  The second measure identified by the two complain ants is the "Draft CN  Explanatory Notes: 
Set-top box incorporating a hard disk"1291 which, they contend, received a "favourable opinion" by the 
Customs Code Committee in "May" 2007.1292  This proposal for amendment of the CNEN called for 
exclusion from duty-free CN code 8528 12 91 set-top boxes which incorporate a device performing a 
recording or reproducing function (for example, a hard  disk or DVD drive); this had been proposed at 
the October 2006 meeting, but had been postponed.  The European Communities points out that the 
reference to "May" 2007 in the Panel request is "not correct".1293   
7.1004  The European Communities submits, first, that the vote in the Customs Code Committee took 
place in April 2007 instead of "May" 2007 (which is  the date of the document containing the minutes 
of the meeting).  Secondly, th e European Communities argues that  the Customs Code Committee did 
not deliver a "favourable" opinion on this propo sed amendment as mentioned in the joint panel 
request, but rather a "no opinion".1294  The European Communities observes that it "understands 
which measure is at issue, or, rather, what is th e measure the existence of  which the complainants 
allege".  However, the European Communities points out "that the factual statements set forth in the 
Panel request, and underlying the complainants' theory of how this measure came into existence , are 
not correct".  In the European Communities' view , the measure that the co mplainants identify and 
                                                      
1287 The terms of CN code 8528 12 91 read in full: "apparatus with a microprocessor-based device 
incorporating a modem for gaining access to the Intern et, and having a function of interactive information 
exchange, capable of receiving television signal s ('set-top boxes with communication function')." 
1288 European Communities' first written submission, paras. 300-302. 
1289 European Communities' first written submission, paras. 300-302. 
1290 European Communities' first written submission, para. 302.  The Panel  notes that the "Draft CNEN 
on Satellite receivers with built-in modem", as voted by the Customs Code Committee and as reflected in the 
Annex to the minutes of the October 2006 Customs Code Committee meeting, reflects this, in that it does not 
mention the exclusion for set-top boxes incorporating a device performing a recording or reproducing function 
and refers only to the exclusion of IS DN, WLAN and Ethernet connectivity.   
1291 "Draft CN Explanatory Notes: Set-top box incorporating a hard disk" (doc. TAXUD/0590/2007), 
see point 3.3 (page 5) to Customs Code Committee (420th meeting) (Exhibits EC-90; TPKM-31).   
1292 Joint panel request, W/DS375/8, 376/8, 377/6.   
1293 European Communities' comments on the complainants' responses to Panel question No. 154.   
1294 This means that there the Customs Code Committee did not reach a qualified majority in favour 
(favourable opinion) or against (non favourable opinion) the Commission's proposal.  WT/DS375/R 
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  describe in the Panel request "does not exist" and th is "is not without consequences for the analysis of 
the complainants' claims by the Panel".
1295   
7.1005  The Panel  observes first that, as pointed out by th e European Communities, the complainants 
have incorrectly mentioned "May" 2007 as the date of  the "Draft CN Explanatory Notes: Set-top box 
incorporating a hard disk", described above at paragr aph 7.1003, and they have also incorrectly stated 
that the Customs Code Committee delivered a "favourab le" opinion with respect thereto.  In fact, the 
draft CNEN was dated April 2007 and the Customs Code Committee delivered a "no opinion" instead 
of a favourable opinion.  It is clear that the refere nce to "May" instead of "A pril" is a mere clerical 
error, which did not lead to any confusion on the part of the European Communities.  Indeed, the 
European Communities confirmed that it understood "which measure is at issue, or, rather, what is the 
measure the existence of which the complainants allege".1296  Hence we see no reason to exclude the 
correct "draft CNEN" from our consideration.  As  for referring to a "favourable" opinion as opposed 
to a "no opinion", we do not consider that th is error should put the "draft CNEN" beyond our 
consideration either.  Although they are two distinct  actions, we understand that in the circumstances 
before us, both a "no opinion" and a "favourable opinion" would lead to the same result, namely the 
adoption of this "draft CNEN" by the Commission.1297  In addition, both the statement of the 
European Communities that it "understands which measure is at issue" and its active defence 
demonstrate that the European Communities' ability to defend itself was not prejudiced by this error 
in the Panel request. Accordingly, we will take into consideration this draft CNEN in our analysis and 
will henceforth refer to "April 2007" instead of  "May 2007" with respect to this measure. 
7.1006  The European Communities further submits that proposed am endments to the CNEN have 
to be "adopted by the Commission to exist"1298 and that this only happened on 29 April 2008.1299 
Consequently, it argues, from an EC legislative pr ocess point of view, both measures at issue are mere 
"drafts" or "preparatory acts". Given that a measure must be adopted before it can be "made effective" 
and "enforced", it argues, the "draft" CNEN amendm ents fall outside the ambit of Articles X:1 and 
X:2 of the GATT 1994.1300 The United States and Chinese Taipei respond that they do not contest that 
the CNEN amendments were not formally adopted by the Commission until 29 April 2008.  In their 
view, however, nothing in Article X:1 or X:2 – that is, nothing in the meaning of "made effective" or 
"enforced" requires such formal adoption. Rather, Ar ticles X:1 and X:2 only require that the measures 
at issue were "made effective" and "enforced" in  practice, which has occurred in the present case.1301   
7.1007  Turning first to the concerns raised by the European Commun ities with regard to the draft 
character of the CNEN amendments, we observe th at the CNEN amendments' draft character does not 
automatically preclude them from being challe ngeable measures.  The Appellate Body in 
US - Corrosion-Resistant Steel Sunset Review  determined that any act of a WTO Member can 
                                                      
1295 European Communities' comments to the United States' and Chinese Taipei's response to Panel 
question No. 154. 
1296 See para. 7.1003 above; European Communities' comments to the United States' and Chinese 
Taipei's response to Panel question No. 154. 
1297 See para. 7.47 above. 
1298 European Communities' second written submission, para. 95. 
1299 European Communities' first written submission,  para. 305, (explaining that the CNEN were 
adopted on 29 April 2008 by Mr. Verheugen (Vice-Presid ent of the Commission) signing the act on behalf of 
the Commission (College)) (Exhibit EC-55). 
1300 European Communities' first written submission, para. 309; European Communities' second written 
submission, para. 95; European Commun ities' second oral statement, para. 92; European Communities' response 
to Panel question No. 154. 
1301 Chinese Taipei's comments to the European Communities' response to Panel question No. 154; 
United States' and Chinese Taipei's re sponses to Panel question No. 155. WT/DS375/R 
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  constitute a measure challengeable before a Panel.
1302  It is an entirely different question, however, 
whether a given measure, such as the "draft" CN EN at issue here, falls within the scope of 
Articles X:1 and X:2 of the GATT 1994.  Given that th e core of the parties' argumentation in relation 
thereto concerns the meaning of the terms "made ef fective" in Article X:1 and "enforced" in Article 
X:2, we will deal with this issue below, when we address those matters.1303  We will thus assess in 
those sections below whether the draft characte r of the CNEN amendments excludes the CNEN 
amendments from the scope of Articles X:1 and X:2.   
7.1008  In their submissions – but not in their joint panel request – the United States and Chinese 
Taipei  present both measures at issue together with: (1 ) various statements made by the Chair of the 
Customs Code Committee at the 413th, 432nd and 433rd meetings and (2) several BTIs.  The European 
Communities questions whether these statements and BT Is form part of the measures at issue.  The 
United States and  Chinese Taipei clarify that they do not cons ider this material to form part of the 
measures at issue.  Rather, they consider them  to serve as "ample evidence that the customs 
authorities of the EC member States must apply the draft CNEN once the EC Customs Code 
Committee has issued an opinion by  means of a vote".  According to the two complainants, this 
material thus establishes that the draft CNENs we re "made effective" once they were voted upon by 
the Customs Code Committee.1304  The European Communities responds  that if the draft measures 
were sent to the customs authorities with an "adminis trative instruction" to follow them as if they had 
been adopted, it would not be the draft CNEN that  would constitute the measure at issue for the 
purposes of Articles X:1 and X:2 of the GATT 1994.  Rather, it argues, the measure at issue would 
instead be the "administrative instruction".  The European Communities submits that the complainants 
have not made such a claim.1305  The Panel will treat the various statements made by the Chair of the 
Customs Code Committee and the BTI as evid ence and not as "measures at issue".   
(c) The United States' and Chinese Taipei's claim under Article X:1 of the GATT 1994 
(i) Main claim of the parties 
The arguments of the Parties  
7.1009  The United States and Chinese Taipei assert that the measures at issue fall within the scope 
of Article X:1 of the GATT 1994 as they constitute regulations or administrative rulings of general 
application pertaining to the classification of produc ts for customs purposes. They claim further that 
the measures at issue were made effective upon the votes in the Customs Code Committee in October 
2006 and April 2007, but that they were published only  in May 2008 (i.e., more than one year later). 
As a consequence, they argue, the European Comm unities violated its obligation under Article X:1 to 
publish promptly the measures at issue once they were made effective.  
                                                      
1302 Appellate Body Report on US – Corrosion-Resistant Steel Sunset Review, para. 81: 
 
"In principle, any act or omission attributable  to a WTO Member can be a measure of that 
Member for purposes of dispute settlement pro ceedings.  The acts or omissions that are so 
attributable are, in the usual case, the acts or omissions of th e organs of the state, including 
those of the executive branch." 
 
1303 See paras. 7.1048 and 7.1128 et seq.  
1304 Chinese Taipei's response to Panel question No . 156. See also United States' response to Panel 
question No. 156 and Chinese Taipei's comments on the European Communities' responses to Panel question 
Nos. 163 and 165. 
1305 European Communities' response to Panel question No. 155.  WT/DS375/R 
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  7.1010  The European Communities  responds that the measures at issue do not constitute a "law, 
regulation, judicial decision or administrative ruling of general application" in the sense of Article X:1 
of the GATT 1994.  According to the European Comm unities, "this is, in particular, because of the 
factual features of the CNEN such as their non-bi nding nature combined with their essentially and 
inherently informative character".
1306  Furthermore, the identified measures at issue are merely 
"preparatory acts" that were not "made effective".1307  In the alternative, the European Communities 
argues that the measures at issue were published promptly and in such a manner as to allow 
governments and traders to become acquainted with them.1308   
7.1011  Of the third parties, only the Philippines submits  arguments in relation to Article X:1. The 
Philippines argues that the publication of the CNEN on 7 May 2008 i.e. more than one year after having been adopted by the Customs Code Committ ee in October 2006 and April 2007 – is contrary 
to Article X:1 of the GATT 1994.
1309 
Consideration by the Panel  
7.1012  The Panel begins its analysis by recalling the text of Article X:1 of the GATT 1994: 
"Laws, regulations, judicial decisions and administrative rulings of general 
application, made effective by any contracting party, pertaining to the classification or the valuation of products for customs purposes, or to rates of duty, taxes or other 
charges, or to requirements, restrictions or prohibitions on imports or exports or on 
the transfer of payments therefore, or affecting their sale, distribution, transportation, 
insurance, warehousing inspection, exhibiti on, processing, mixing or other use, shall 
be published promptly in such a manner as to enable governments and traders to become acquainted with them.  Agreements affecting international trade policy which 
are in force between the government or a governmental agency of any contracting party and the government or governmental agen cy of any other contracting party shall 
also be published.  The provisions of this paragraph shall not require any contracting 
party to disclose confidential information which would impede law enforcement or 
otherwise be contrary to the public inte rest or would prejudice the legitimate 
commercial interests of particular enterprises, public or private." 
7.1013  In examining the provisions of Article X:1 of the GATT 1994, the Appellate Body in 
EC - Poultry  held that:   
"Article X relates to the publication and administration of 'laws, regulations, judicial 
decisions and administrative rulings of ge neral application', rather than to the 
substantive content of such measures".
1310   
7.1014  The Panel in EC – Selected Customs Matters  stated that: 
"[T]he title as well as the content of the various provisions of Article X of the GATT 
1994 indicate that that Article, at least in part, is aimed at ensuring that due process is 
                                                      
1306 European Communities' first written submission, para. 310. 
1307 European Communities' second oral statement, pa ra. 92; European Communities' response to Panel 
question No. 154. 
1308 European Communities' first written submission, para. 305; European Communities' comments to 
the United States' and Chinese Taipei's responses to Panel question No. 159. 
1309 Philippines' third party submissions, paras. 40-41. 
1310 Appellate Body Report on  EC – Poultry , para. 115. WT/DS375/R 
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  accorded to traders when they import or export [...] In this regard, we note that Article 
X:1 of the GATT 1994 requires that customs laws, regulations etc. should be published 'in such a manner as to enable  governments and traders to become 
acquainted with them' [...].This due pr ocess theme, which would appear to be 
reflected in each of sub-paragraphs of Article X of the GATT 1994, has been referred 
to by the Appellate Body when interpreting that Article."
1311 
7.1015  These statements confirm our understanding that  Article X:1 of the GATT 1994 is primarily 
concerned with the publication of "laws, regulations , judicial decisions and administrative rulings of 
general application" as opposed to the content of su ch measures.  Paragraph 1 also reflects the "due 
process" concerns that underlie Article X as a whol e.  In particular, Article X:1 addresses the due 
process notion of notice by requiring publication that is prompt and that ensures those who need to be 
aware of certain laws, regulations, judicial decisions  and administrative rulings of general application 
can become acquainted with them.1312    
7.1016  We will address the legal questions before us by following a five-step analysis. First, we will 
determine whether the measures at issue are "laws, regulations, judicial decisions [or] administrative 
rulings of general application" within the meaning of Article X:1 of the GATT 1994.  Second, if the 
answer to this question is in the affirmative, we  will assess whether the measures at issue "pertain to 
the classification or the valuation of products for cu stoms purposes, or to rates of duty, taxes or other 
charges, or to requirements, restrictions or prohi bitions on imports or exports or on the transfer of 
payments therefore, or affecting their sale, di stribution, transportation, insurance, warehousing 
inspection, exhibition, processing, mixing or other u se".  Third, if this assessment is also in the 
affirmative, we will determine whether the measur es at issue were "made effective" within the 
                                                      
1311 Panel Report on EC - Selected Customs Matters , para. 7.107, as upheld by the Appellate Body.  In 
that case, the Panel recalled that the Appellate Body in US - Underwear, DSR 1997: I, p. 29 referred to the 
fundamental importance of th e transparency standards contained in Ar ticle X of the GATT 1994 and stated that 
Article X has due process dimensions. 
1312 In this context, we also refer to the Appellate Body in US – Underwear , finding that also 
Article X:2 "embod[ies] a principle of fundamental importance - that of promoting full disclosure of governmental acts affecting Members and private persons and enterprises, whether of domestic or foreign 
nationality.  The relevant policy principle is widely know n as the principle of transp arency and has obvious due 
process dimensions."  According to the Appellate Body, the "essential implication" of this due process 
dimension is "that Members and other persons affected, or likely to be affected, by governmental measures 
imposing restraints, requirements and other burdens, shou ld have a reasonable opportunity to acquire authentic 
information about such measures and acc ordingly to protect and adjust their activities or alternatively to seek 
modification of such measures" (Appellate Body Report on US - Underwear , DSR 1997:I, p. 29).  We consider 
that this statement, although addressing Article X:2, is equa lly applicable to Article X:1.  We further note that in 
China – Publications and Audiovisuals Products , the Panel in para. 7.28 recalled that "[t]he Appellate Body has 
previously found that the obligation to afford due process is 'inherent in the WTO dispute settlement system' and 
it has described due process requirements as 'fundamental  to ensuring a fair and orderly conduct of dispute 
settlement proceedings". (Panel Report on China - Audiovisuals Products ; para. 7.28 (quoting, respectively, the 
Appellate Body Reports on Chile - Price Band System , para. 176 and on Thailand - H-Beams , para. 88).  That 
Panel also recalled the Appellate Body's conclusion that:  
 
"[T]he protection of due process is an essential feature of a rules-based system of adjudication, 
such as that established under the DSU.  Due process protection guarantees that the 
proceedings are conducted with fairness and impartiality, and that one party is not unfairly 
disadvantaged with respect to other parties in a dispute." (Panel Report on 
China - Publications and Audiovisuals Products , para. 7.28 (quoting the Appellate Body 
Report on US - Continued Suspension , para. 433).  
  WT/DS375/R 
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  meaning of the provision.  We will then consider , as a fourth analytical step,  the moment of 
publication in order to determine whether it was "prompt" vis-à-vis  the moment the measures were 
"made effective".  Fifth, if the response to the latte r is also in the affirmative, we will progress to the 
last analytical step and consider whether the "p rompt" publication was done "in such a manner as to 
enable governments and traders to become acquainted with them." 
(ii) Whether the measures at issue are laws, regul ations, judicial decisions or administrative 
rulings of general application pertaining to the classification of products for customs purposes 
Arguments of the parties
 
7.1017  The United States and Chinese Taipei  argue that the measures at issue are either 
"regulations" or "administrative ruli ngs" of "general application" within the meaning of Article X:1 of 
the GATT 1994 that "plainly pertain" to the classification of products for customs purposes.1313  
Chinese Taipei  submits that the measures at issue are regul ations or administrative rulings, within the 
meaning of Article X:1 of the GATT 1994, even if  they are not formally called "regulations" or 
"administrative rulings".  In Chinese Taipei's view, it  is the content and substance of the measure that 
ultimately determine whether it is indeed a "regulatio n" or "administrative ruling", not the label given 
to it under domestic law.1314  According to the United States , the measures at issue, in conjunction 
with the CN, are administrative rulings since "the y are used by administrative authorities in the 
member States as a basis for determining tariff classification of an entire category of merchandise".1315   
7.1018  The United States and Chinese Taipei further submit  that the measures at issue are of "general 
application". The United States argues that "amendme nts to the CN Explanatory Notes, in conjunction 
with the CN, are used by administrative author ities in the EC member States as a basis for 
determining tariff classification of an entire cate gory of merchandise" and that they apply to "all 
set top boxes with a communication function imported into the EC".1316 It adds that the "CNEN set 
forth rules and norms that are intended to have gene ral and prospective application" and that they are 
applied by the EC customs authorities "to all importe rs to ensure uniformity and administration of the 
CN".1317 Chinese Taipei submits that a measure is of "g eneral application" when it applies to a range 
of situations or cases, rather than being limited in its  scope of application. It also points out that the 
CNEN relating to STBCs "apply to a range of situa tions or cases and affect an unidentified number of 
economic operators.  They are t hus of general application".1318   
7.1019  The European Communities  responds that the measures at issue do not constitute a "law, 
regulation, judicial decision or administrative ruling of general application" in the sense of Article X:1 
of the GATT 1994. According to the European Commun ities, "this is, in particular, because of the 
factual features of the CNEN such as their non-bi nding nature combined with their essentially and 
inherently informative character".1319 The European Communities argu es that "[i]t is a well known 
and settled issue within the EC legal system th at while Explanatory Notes to the CN may be 
                                                      
1313 United States' first written submission, para. 115; Chinese Taipei's first written submission, 
para. 465. 
1314 Chinese Taipei's second written submission, pa ras. 259-260 (citing the Appellate Body Report on 
US – Corrosion-Resistant Steel Sunset Review , fn. 87). 
1315 United States' first written submission, para. 114; United States' second written submission, 
para. 121. 
1316 United States' first written submission, para. 114. 
1317 United States' response to Panel question No. 121. 
1318 Chinese Taipei's first written submission, para. 467. 
1319 European Communities' first written submission, para. 310. WT/DS375/R 
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  considered as 'an important aid for interpreting' the CN, they do not have a legally binding force and 
cannot alter the CN"
1320, nor can they "preclude the exercise of discretion" by the customs 
authorities.1321 The European Communities explains that the EC member States, when classifying 
imported goods, have to base their classification on the CN and the interpretative rules therein 
(GIR 1-6) and not on a CNEN.  The European Communities submits that if some EC member States refer to a CNEN, "it is merely to inform the econom ic operator that with respect to its product, the 
Commission has already conducted the interpretative exercise and taken a non-binding view that the 
CN should be interpreted in a particular way".
1322 The European Communities further explains that 
the CNEN only comes into play at the eight-digit level of the CN1323, and that "the CNEN serves to 
confirm the classification made on the basis of the CN , but it is not itself the legal reason and basis for 
that classification".1324 It argues that this is confirmed by th e complainants' own exhibits, which show 
that some EC member States were classifying certain STBCs with a hard disk in dutiable CN codes well before the challenged CNEN was adopted by th e Commission, and well before it was even voted 
upon in the Customs Code Committee.
1325   
7.1020  Chinese Taipei  responds that "the fact that the European Court of Justice has stated that the 
CNEN are 'not legally binding' is not dispositiv e of the issue whether they constitute 'laws, 
regulations, judicial decision or administrative rulings  of general application' and thus fall within the 
scope of Article X:1 of the GATT 1994".  It argues that the content and the substance of the CNENs 
                                                      
1320 European Communities' first written submission, para. 289; European Communities' second written 
submission, para. 69 (citing the European Court of Justi ce (Develop Dr Eisbein), paras. 20-23 (Exhibit EC-56)). 
1321 European Communities' second written submission, para. 55. 
1322 European Communities' first written submission, para. 315. European Communities' second written 
submission, para. 55. However, when the European Communities was asked by the Panel about the flexibility 
EC member States' customs authorities have to classify a product contrary to the tariff heading as indicated in the CNENs, it responded, in part, that the "CNEN reflect a Commission's view on how the CN should be 
interpreted and applied with respect to a certain product or  a category of product at i ssue [...]. If a Member State 
deviates in its classification practice from the appr oach taken in a CNEN, the Commission can institute 
infringement proceedings before the European Court of Ju stice against such a Member State [...]. Hence, with 
some simplification, the flexibility which the Panel asks about can be described as a flexibility to take a view 
different from that expressed by a non-binding opinion on the interpretation of a binding legislation, with the caveat that the authority  expressing the non-binding opinion can try to convince the Member Stat e that it is right 
before the court." (European Communities' response to Panel question No. 91).  Responding to another question 
posed by the Panel, the European Communities also mentioned that it cannot be excluded that national customs 
authorities would classify a given produc t differently from the CNEN but that  "[i]n such a case [...], there is a 
range of tools available to unify the classification" (European Communities' response to Panel question No. 23). 
1323 European Communities' response to Panel question No. 83 (explaining that "[t]he classification 
exercise begins, in accordance with GIR 1, with an examination of the terms of the 4-digit head ing, rather than 
an 8-digit level analysis. If a set top box that is considered at this level contains a tuner and technological elements allowing it to perform a communication function, it will fall under heading 8528. If the same set top 
box also contains a hard disk performing a recording or reproducing function that qualifies it as a video 
recorder, it will be classified in head ing 8521.[...] Once it is determined that  the product at i ssue falls within 
heading 8528 (be it by virtue of GIR 1 or GIR 3, for example), then the relevant subheading at 6- and, 
ultimately, a 8-digit level will have to be identified.  It is only at the 8-digit level that the CNEN comes into 
play.  It acts as a confirmation of a correct classification analysis."). 
1324 European Communities' second oral statement, para. 53 (cross- referencing with the European 
Communities' response to Panel question No. 83). 
1325 European Communities' second oral statement, para. 53 (citing Exhibit US-28 and cross-
referencing with the European Communities' first wr itten submission, para. 321).  See also European 
Communities' response to Panel question No. 83 (explaining that the CNEN at issue is expressed "in a rather 
categorical language (e.g. products with a hard disk drive performing a recording or reproducing function are excluded and classified elsewhere)" to  reflect the fact that CNENs "are drafted with an understanding of the 
products as they currently exist in the market...").  WT/DS375/R 
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  are the elements that matter to qualify this inst rument as a law, regulation, judicial decision or 
administrative ruling of general application, not its title.
1326  Chinese Taipei also asserts that despite 
the repeated claims of the Eur opean Communities that CNEN are not  legally binding, an examination 
of their legal status confirms that they are "in fact" legally binding.1327  Just because CNENs cannot 
alter the scope of the CN itself does not mean that  EC customs authorities would be free to disregard 
them.  More specifically, Chinese Taipei considers that the CNENs are legally binding for various 
reasons.  First, a BTI will cease to exist when contrary to a CNEN.1328  Second, as the statements of 
the Chair of the Customs Code Committee prove, EC customs authorities must follow CNENs.1329  
Third, EC member States that deviate from the content of a CNEN, and collect less import duties as a 
result thereof, are considered liable and the Co mmission has the option of instituting proceedings 
against such EC member States.  Fourth, since CN ENs are "tools for ensuring a uniform classification 
practice within the EC", they would not be able to  ensure such uniformity if EC member States were 
free to decide whether to apply them or not.1330   
7.1021  The European Communities  confirms that the complainants are "correct" in saying that the 
CNENs fulfil a certain function in its customs syst em – a function which is well-explained in the case-
law of the European Court of Justice. Accordi ng to the European Communities, however, what the 
complainants "misunderstand" is that such case-la w and statements of the European Communities on 
the significance of CNENs in the EC for classifi cation purposes only relate to CNENs which are 
existing, i.e., to CNENs which have been duly ad opted and published by the European Communities. 
The European Communities argues that this situation does not and cannot relate to "events" such as 
"mere drafts " (and even less so to "intermediate drafts"); discussions;  EC member States' votes; or Customs Code Committee opinions delivered in the "management procedure". According to the 
European Communities, "[t]hese events simply do not have any legal effect on the interpretation and 
application of the CN".
1331 
Consideration by the Panel  
7.1022  The Panel is called upon to determine whethe r the CNEN amendments identified by the 
United States and Chinese Taipei are "laws, regulations , judicial decisions or administrative rulings of 
general application" that pertain to one of the sp ecific subjects enumerated in Article X:1 of the 
GATT 1994. As indicated above, first, we will cons ider whether the CNEN amendments are a "law, 
regulation, judicial decision [or] administrative ruling" within the meaning of Article X:1. Second, if 
the answer to that question is in the affirma tive, we will then consider whether the CNEN 
amendments are of "general application". Finally,  if that assessment is also affirmative, we will 
consider whether the CNEN am endments qualify as pertaining to one of the specific subjects 
enumerated in Article X:1. 
7.1023  We now turn to our first  question.  Whether a given instrument constitutes a "law", 
"regulation", "judicial decision" or an "administr ative ruling" of general application within the 
                                                      
1326 Chinese Taipei's second written submission, para. 260. 
1327 Chinese Taipei's second written submission, para. 132. 
1328 The United States makes a similar point (see Un ited States' second written submission, para. 35). 
1329 In particular, the two complainants referred to th e statements of the Chairman of the Customs Code 
Committee during the 413th, 432nd and 433rd meetings, see para. 7.1050 and following paras. below. 
1330 Chinese Taipei's second written submission, paras. 61-70 (adding that such "infringement 
proceedings" would be based on Article 10 of the EC Treaty); and paras. 132 and 261-268. 
1331 European Communities' second oral statement, paras. 88-90. WT/DS375/R 
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  meaning of Article X:1 must be based primarily on the content and substance of the instrument, and 
not merely on its form or nomenclature.
1332  Most recently, the Appellate Body has stated that: 
"[F]irst ... the way in which a Member's dom estic law characterizes its own measures, 
although useful, cannot be dispositive of the characterization of such measures under 
WTO law.  Secondly, 'the intent, stated or otherwise, of the legislators  is not 
conclusive' as to such characterization."1333 
7.1024  Accordingly, "laws, regulations, judicial deci sions and administrative rulings" can encompass 
more than those instruments formally character ized as such by a WTO Member. Otherwise, WTO 
Members themselves could determine which provisi ons would be subject to WTO obligations under 
Article X:1 of the GATT 1994 merely by the labelli ng of those instruments. Hence, we will first 
consider what is meant by "laws"; "regulations"; "judicial decisions" and "a dministrative rulings" in 
the sense of Article X:1, and in terms of substance, rather than form or nomenclature.  Subsequently, 
we will consider whether the CNENs at issue fall within laws, regulations, judicial decisions or 
administrative rulings under Article X:1.   
7.1025  Substantively, a "law" is "a ru le of conduct imposed by secular authority"; a rule which "a 
particular State [...] may enforce by imposing penalties".1334  A "regulation" is "a rule prescribed for 
controlling some matter, or for the regulati ng of conduct; an authoritative direction".1335  A "ruling" is 
"the action of governing or exercising authority, the exercise of government, authority, control, 
influence" or "an authoritative pronouncement".1336  The adjective "administrative" indicates that it is 
a ruling from an administrative body.  Finally, a "judicial decision" is an action or pronouncement by 
a judicial body or authority.1337 
                                                      
1332 A similar approach was taken by the Appellate Body in US – Corrosion-Resistant Steel Sunset 
Review , with respect to a similar language used in Article 18.4 of the Anti-Dumping Agreement ("…laws, 
regulations and administrative procedures …").  The Appellate Body stated: 
 
"We observe that the scope of each  element in the phrase 'laws,  regulations and administrative 
procedures' must be determined for purposes of WTO law and not simply by reference to the 
label given to various instruments under the domestic law of each WTO Member.  This 
determination must be based on the content and substance of the instrument, and not merely 
on its form or nomenclature.  Otherwise, the obligations set forth in Article 18.4 would vary 
from Member to Member depending on each Me mber's domestic law and practice." (Footnote 
87 to para. 87). 
 
1333 Appellate Body Report on China – Auto parts , para. 178 (footnotes omitted) (citing the Appellate 
Body Report on US – Softwood Lumber IV (Article 21.5 – Canada) , para. 82, which, by its turn, refers to the 
Appellate Body Report on US – Softwood Lumber IV , para. 56).  In China – Auto parts , the Appellate Body 
further noted, with approval, the Panel's recognition that "a  degree of caution must be exercised in attributing 
decisive weight to characteristics th at fall exclusively within the contro l of WTO Members, 'because otherwise 
Members could determine by themselves which of the provisions would apply to their charges'." Appellate 
Body Report on China – Auto parts , para. 178 (footnote omitted). 
1334 The Shorter Oxford Dictionary  (2002), p. 1544. 
1335 The Shorter Oxford Dictionary  (2003), p. 2516.  In the GATT Panel Report on Canada – FIRA , 
para. 5.5, the Panel explained that the term "regulation" covered "mandatory rules applying across-the-board". 
1336 The Shorter Oxford Dictionary  (2003), p. 2630. 
1337 We note that the Panel in Dominican Republic – Import and Sale of Cigarettes  understood the term 
"judicial decisions" in Article X:1 as meaning "pronouncements with the force of res judicata issued by judicial 
authorities as a result of a legal process." (Panel Report on Dominican Republic – Import and Sale of Cigarettes , 
para. 7.404).  WT/DS375/R 
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  7.1026  Substantively, and when read as a whole within  the context of Article X:1, the phrase "laws, 
regulations, judicial decisions and administrative rulings" reflects an intention on the part of the 
drafters to include a wide range of measures that have the potential to affect trade and traders.
1338  A 
narrow interpretation of the terms "laws, regulati ons, judicial decisions and administrative rulings" 
would not be consistent with this intention, and would also undermine the due process objectives of 
Article X referred to above.1339    
7.1027  Based on the foregoing, we observe that the ordinary meanings of the terms "laws, 
regulations, judicial decisions and administrative rulings" indicates that the instruments covered by 
Article X:1 range from imperative rules of conduct to the exercise of influence or an authoritative 
pronouncement by certain authoritative bodies. Accord ingly, we consider that the coverage of 
Article X:1 extends to instruments with a degree of  authoritativeness issued by certain legislative, 
administrative or judicial bodies. This does not mean, however, that they have to be "binding" under domestic law.  Hence, the fact that CNENs are not legally binding under EC law does not preclude 
them from being contemplated by the terms "laws, regulations, judicial decisions [or] administrative 
rulings" under Article X:1. However, whether a par ticular measure has a degree of authoritativeness 
such that it would be properly characterised as "laws, regulations, administration rulings or judicial decisions" requires a case-by-case assessment of the partic ular factual features of the measure at issue.   
7.1028  We now turn to consider whether the CNEN amendments at issue have a degree of 
authoritativeness such that it would be consider ed a "law, regulation, judicial decision or 
administrative ruling" within the context of Article X:1. In this respect, we note the explanations from 
the European Communities that the CNENs are proposed by the Commission and discussed amongst 
the Commission and the customs authorities of th e 27 EC member States in the Customs Code 
Committee; that the "CNEN reflect a Commission's view on how the CN shoul d be interpreted and 
applied with respect to a certain produc t or a category of product at issue"
1340; that the CNENs 
"constitute an important means of ensuring the uni form application of the Common Customs Tariff by 
the customs authorities of the Member States"1341; that they are "a valid aid to the interpretation of the 
tariff"1342; that the CNENs are "guidance"1343; and that EC member States "decide on the classification 
of products in individual cases" and that  "in this role" they "consult" the CNEN.1344 Furthermore, we 
note that the complainants have submitted BTIs issued by EC member States customs authorities 
mentioning the CNEN as a "classification justification"1345; that CNEN can have legal consequences 
for BTIs1346 and that "if a Member State deviates in its classification practice from the approach taken 
                                                      
1338 In US – Corrosion-Resistant Steel Sunset Review , the Appellate Body similarly found that the 
expression "laws, regulations and administrative proce dures" in Article 18.4 of the Anti-Dumping Agreement 
seemed to encompass the entire body of  generally applicable rules, norms and standards adopted by Members in 
connection with the conduct of anti-dumping pr oceedings.  (Appellate Body Report on 
US - Corrosion Resistant Steel Sunset Review , para. 87). 
1339 We observe, however, that Article X:1, as oppose d to Article X:2, does not deal with "measures of 
general application" but only with "laws, regulations, judicial decisions and administrative rulings of general application".   
1340 European Communities' response to Panel question No. 91. 
1341 European Communities' second written submission, para. 69. 
1342 European Communities' second written submission, para. 69. 
1343 European Communities' second oral statement, para. 30. 
1344 European Communities' response to Panel question No. 23. 
1345 See para. 7.1064 below. 
1346 See Article 12(5)(a)ii of the CCC (Exhibits US-19; TPKM -16), which provides that BTI shall cease 
to be valid "where it is no longer compatible with the in terpretation of one of the nomenclatures referred to in 
Article 20(6): at Community level, by reason of amendments to the Explanatory notes to the combined 
nomenclature". WT/DS375/R 
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  in a CNEN, the Commission can institute infringeme nt proceedings before the European Court of 
Justice against such a Member State".
1347    
7.1029  In the Panel's view, it is clear that CNENs are important in enabling the European 
Communities to maintain a uniform application of the Common Customs Tariff within its territory.  
Although the European Communities has noted th at CNENs do not "preclude the exercise of 
discretion" by member State customs authorities, it is apparent that there is a clear expectation that such discretion will be exercised in a certain fash ion and that infringement proceedings may apply in 
instances where such discretion is not so exercised.  The Panel also finds it relevant that CNENs are 
issued by the Commission, a body with undisputed authority within the EC for ensuring the uniform 
application of the Customs Code Tariff, and with th e power to challenge interp retations not consistent 
with its own.  Indeed, according to Regulation No. 2658/87, as amended, the Commission establishes 
and manages the CN.
1348 In addition, according to its Article  9, the Commission adopts Explanatory 
Notes.  Moreover, the Panel notes that BTIs wi ll cease to be valid where they are no longer 
compatible "at Community level" with "the explanatory notes [...] adopted for the purposes of 
interpreting the rules".1349  In these circumstances, the Panel considers that CNENs have a degree of 
authoritativeness such that they may be properly ch aracterized as a "law, regulation, administration 
ruling or judicial decision" as t hose terms are used in Article X:1. The fact that CNENs are not 
"legally binding" under EC law does not diminish this conclusion.1350   
7.1030  In our view, the transparency and due process purpose of Article X:1 would be defeated if 
CNENs, which evidently play a key role in EC cl assification practice, were not be covered by the 
obligations in Article X:1. We consider this s upports our interpretation that CNENs qualify as "law, 
regulation, judicial decision [or] administrative ruling".     
7.1031  In light of this affirmative finding, we proceed to our second question: whether CNENs are of 
"general application".  We note the European Co mmunities' argument that the measures cannot be of 
general application because of their "draft" characte r.  We will consider their alleged draft character 
later, when analyzing the terms "made effectiv e" (see paragraphs 7. 1047-7.1048 below).    
7.1032  In EC – Selected Customs Matters , the Panel found that:  
"'[L]aws, regulations, judicial decisions and administrative rulings of general 
application ' described in Article X:1 of the GATT 1994 are laws, regulations, judicial 
decisions and administrative rulings that appl y to a range of situations or cases, rather 
than being limited in their scope of application".1351 
7.1033  Similarly, in US – Underwear , the Appellate Body upheld the Panel's interpretation that an 
administrative order was of "general application"  "to the extent that the restraint affects an 
unidentified number of economic operators, including domestic and foreign producers."1352 
                                                      
1347 European Communities' response to Panel question No. 91. 
1348 See Council Regulation No. 2658/87, Articles 1;  2 and 6 (Exhibits EC-49; US-13 and TPKM-5). 
1349 See Article 12(5)(a)ii of the CCC (Exhibits US-19; TPKM-16). 
1350 See paragraphs 7.1037-7.1062 in the Final Reports below. Assuming arguendo that the alleged 
"draft" character of the CNENs were relevant to the matters discussed in this section, for the reasons described 
in those paragraphs, the Panel does not consider the so- called "draft" character of the CNENs to alter its views 
on whether the measures in question are "laws, regula tions, judicial decisions and administrative rulings". 
1351 Panel Report on EC – Selected Customs Matters , para. 7.116. 
1352 Panel Report on US - Underwear , para. 7.65.  WT/DS375/R 
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  7.1034  In line with the above understanding by the Panel in EC – Selected Customs Matters  and also 
with that of the Appellate Body in US – Underwear, we consider that the CNEN amendments at issue 
in this dispute are of "general application" within  the meaning of Article X:1 of the GATT 1994.  This 
is so because the application of a CNEN is not limited to a single impor t or a single importer.   Rather, 
the objective of the CNEN is to ensure the unifo rm application of the Common Customs Tariff to all 
products falling under a specific CN code upon im portation into the European Communities.  The 
CNEN at issue, for example, describes which STB Cs are eligible for duty-free treatment under CN 
code 8528 12 91, indicating that STBCs with WLAN-,  ISDN- or Ethernet- connectivity or with a 
recording or reproduction device such as a hard disk or a DVD-drive are excluded from duty-free CN 
code 8528 12 91.  The CNEN at issue are thus of "g eneral application" within the meaning of Article 
X:1 of the GATT 1994.   
7.1035  Finally, we need to consider whether the CN EN pertain to one of the specific subjects 
enumerated in Article X:1.  Accordi ng to Article X:1, the CNEN should:  
- pertain to "the classification or the valua tion of products for customs purposes, or to 
rates of duty, taxes or other charges, or to  requirements, restrictions or prohibitions on 
imports or exports or on the transf er of payments therefore" or  
- affect "their sale, distribution, trans portation, insurance, warehousing inspection, 
exhibition, processing, mixing or other use".
1353 
7.1036  We agree with the United States and Chinese Taip ei, that, at the very least, the measures at 
issue "pertain[] to the classification of products for customs purposes".1354  This much is evident from 
a superficial reading of the measures.  In this r espect, we again highlight the European Communities' 
confirmation that the CNENs are "an important me ans of ensuring the uniform application of the 
Common Customs Tariff by the customs authorities of the EC Member States and as such may be considered a valid aid to the interpretation of the tariff".
1355   
7.1037  In this section, we first determined that the CNEN amendments are "laws, regulations, 
judicial decisions [or] administrative rulings".  S econd, we determined that the CNEN are of general 
application".  Finally, we determined that CNEN s "pertain to the classification of products for 
customs purposes".  We can therefore continue our analysis and consider whether, and if so when, the CNEN amendments were "made effective" within th e meaning of Article X:1 of the GATT 1994.  If 
we make a positive determination in that regard , the only outstanding issues under Article X:1 would 
be whether the CNEN amendments were "publishe d promptly" and, if so, whether they were 
published "in such a manner as to enable governments and traders to become acquainted with them". 
                                                     
 
1353 We understand the disciplines of Article X:1 to include a third group, not at issue in the present 
dispute, i.e.:  "[a]greements affectin g international trade policy which are in force between the government or a 
governmental agency of any contracting party and the government or governmental agency of any other contracting party ...". 
1354 The Panel notes that the European Communities does not seem to raise any objections in this 
regard.  Rather, the European Communities confirmed th at CNENs are an important aid for interpreting the CN 
(see, for example, European Communities'  first written submission, para. 289). 
1355 European Communities' second written submission, para. 69.   WT/DS375/R 
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  (iii) Whether the draft CNENs were "made effec tive" in October 2006 and/or April 2007 
Arguments of the parties  
 
7.1038  The United States and Chinese Taipei  argue that the CNEN amendments were "made 
effective" upon voting in the Customs Code Committee.   The votes were cast in October 2006 for the 
first measure at issue (the CNEN amendment con cerning the exclusion for certain types of modems) 
and in April 2007 for the second measure at issue (t he CNEN amendment concerning the exclusion of 
set top boxes with a recording or reproduction device such as a hard disk or a DVD drive).1356   
7.1039  In the United States' and Chinese Taipei's view, the term "made effective" requires a factual 
assessment of whether the CNEN amendment has been made "applicable".1357 Such assessment 
should be made irrespective of the measure's form al status or legal qualification in the Member's 
domestic legal order.1358  Accordingly, the characterization as "d raft" does not change the fact that the 
CNEN amendments have been "made effective".1359 Chinese Taipei points out that "made effective" 
means "having an effect or result, actual, de facto, in  effect". Thus, a law, regulation, judicial decision 
or administrative ruling of general application is ma de effective as of the date a domestic authority 
may begin to apply that measure, even if it chooses to not yet apply it.1360 Such understanding, it 
argues, is confirmed by the Spanish and the French  versions of Article X:1, which translate "made 
effective" into "haya puesto en vigor" and "re ndus executoires", respectiv ely. The United States 
emphasizes that Article X:1 mentions "made effectiv e" and not "adopt", which is used elsewhere in 
the GATT 1994.  Thus, it claims, it would be incorrect  to assume that there is no significance that the 
drafters chose to use the different term "made effective" in Article X:1.1361  Nor, submits the United 
States, would the European Communiti es' approach make sense in the context of Article XX(g) of the 
GATT 1994, which also uses the term "made effective", since nothing in that provision would require 
                                                      
1356 Chinese Taipei's response to Panel question No. 156. 
1357 Chinese Taipei's response to Panel question No. 154; United States' second written submission, 
paras. 122-123. 
1358 Chinese Taipei's comments on the European Co mmunities' response to Panel question No. 154. 
1359 United States' response to Panel question No. 155.   
1360 United States' and Chinese Taipei's responses to  Panel question Nos. 154-156 and their respective 
comments on the European Communities' responses to those Panel questions; Chinese Taipei's second written 
submission, paras. 272-273.  In its response to Panel question No. 154, Chinese Taipei adds that "[a] measure of general application may be 'effective' but not yet 'enforced'.  In this respect, 'made effective' and 'enforced' 
suggest a two-step situation. Generally, a WTO Member fi rst makes a measure of general application 'effective' 
(Article X:1), and then it enforces the said measure (Article X:2).  However, in this case, there is no substantive 
distinction --- the measure was both made effective and enforced before it was published, as it was both 
applicable and in fact applied by EC customs authoritie s."  See also Chinese Taipei's comments on the European 
Communities' response to Panel Question No. 154.  Chinese Taipei further argues that the European Communities' interpretation that Article X:1 requires "f ormal adoption" of the measure "could result in an 
absurd situation that an importer could be requested to comply with, e.g. new unpublished valuation guidelines 
but there would not be any infringem ent of Article X simply because th e competent minister had not yet 
formally signed these guidelines".  It points out that su ch an interpretation is precisely what Article X tries to 
avoid; Chinese Taipei's comments on the European Communities' response to Panel question No. 154. 
1361 United States' comments on the European Communities' responses to Panel question Nos. 154-156. 
The United States also refers to Article XII:3(a) of th e GATT 1994, which uses the word "adopt", and also to 
Articles XX; XXXVI:9 and XXXVII:3(b) of the GATT 1994, which use the word "adoption".  WT/DS375/R 
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  that the measures be "adopted" in conjunction with restrictions on domestic production or 
consumption.
1362 
7.1040  In their view, various statements of the Chai rman of the Customs Code Committee and BTIs 
issued by EC member State customs authorities prove that the CNEN amendments were "made 
effective" once voted in the Customs Code Committee1363, even before their formal adoption and 
official publication.1364  The BTIs, for example, would demonstrate that the EC customs authorities 
have relied on the CNEN as a "classification justifi cation" to classify certain STBCs in a dutiable CN 
code.1365   
7.1041  The European Communities  responds that "made effective"  means "entered into force"1366 
and that – under EC law - CNEN amendments only en ter into force after adoption by the Commission 
and publication in the EU Official Journal.1367  t emphasizes that the Customs Code Committee does 
not "adopt" measures. The vote in the Customs Code  Committee is merely a "step" in the adoption 
procedure. According to the European Commun ities, the "Customs Code Committee opinions 
delivered in the management procedure ... simply do  not have any legal effect on the interpretation 
and application of the CN".1368 Since the CNEN amendments we re "adopted" by the Commission only 
in April 2008, the CNEN amendments were not "made effective" before that time. The CNEN 
amendments were therefore merely "preparatory act s" to which, in the Eu ropean Communities' view, 
Article X:1 does not apply.1369 Allowing "preparatory" acts to fall within the disciplines of Article X:1 
would mean that draft bills and laws could be  challenged as they are "discussed in their 
parliaments."1370  Such an understanding, claims the Eu ropean Communities, would turn these GATT 
disciplines on their head and result in WTO Members' administrations not being able to function.  It would mean that at the moment a WTO Member issu ed a "preparatory act", it would also have to 
publish it, even though the act itself would not yet have been adopted.
1371  The European 
Communities considers that this view is supported by the French and Spanish language versions of 
Article X:11372, and argues that the general language "made effective" was chosen to accommodate the 
inclusion of "judicial decisions" within the scope of Article X:1.1373   
7.1042  Regarding the statements by the Chairman of  the Customs Code Committee, the European 
Communities affirms that the statement by a "Commi ssion official presiding" over the Customs Code 
Committee meeting "does not create any rights or oblig ations for the Member States".  Such statement 
"has no law-creating effect" as "that would be beyo nd any powers of the Commission official acting 
                                                      
1362 United States' comments on the European Communities' responses to Panel questions Nos. 154-
156. The United States also refers to Article XV:9(b) of  the GATT 1994, in which the term "make effective" is 
used but which, according to the United States, again w ould make no sense to read as meaning "adopted". 
1363 Chinese Taipei's response to Panel question No . 156.  See also United States' second written 
submission, para. 122. 
1364 United States' second written subm ission, para. 122; Chinese Taip ei's first written submission, 
para.  473; Chinese Taipei's response to Panel question No. 154. 
1365 United States' response to Panel question No. 122. 
1366 European Communities' response to Panel question No. 154. 
1367 The European Communities submits that a measure can only "enter into force" when it can no 
longer be modified or withdrawn by the government without undergoing again the legislative or quasi-
legislative process; European Communities' re sponses to Panel question Nos. 154 and 156. 
1368 European Communities' second oral statement, para. 88-90. 
1369 European Communities' response to Panel question No. 154. 
1370 European Communities' response to Panel question No. 156. 
1371 European Communities' responses to Panel question Nos. 155 and 156. 
1372 European Communities' response to Panel question No. 154.   
1373 European Communities' response to Panel question No. 154. WT/DS375/R 
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  as Chairman of the Customs Code Committee (or even beyond any powers of the Customs Code 
Committee as a whole)."
1374  Consequently, those statements ca n by no means be interpreted as 
requiring the EC member States to comply with a draft CNEN.  According to the European 
Communities, such an interpretation would be ma nifestly illegal under EC law, the EC Treaty and 
Article 249 thereof.1375  
Consideration by the Panel  
7.1043  The Panel is called upon to determine whether the CNEN amendments at issue were "made 
effective" within the meaning of Article X:1 of the GATT 1994.  First, we will consider the meaning 
of the term "made effective" in Article X:1. Sec ond, we will consider whet her the CNEN amendments 
at issue were "made effective" and this will include  an examination of the various statements of the 
Chairman of the Customs Code Committee and of the BTIs submitted by the United States and 
Chinese Taipei. Third, should we c onclude that the CNEN amendments were made effective, we will 
determine when these amendments were "made effective".  Th e latter point is relevant in determining 
whether the CNEN amendments were published "promp tly".  That issue, however, will be dealt with 
in the following section.1376   
The meaning of "made effective" 
7.1044  We now turn to the first step in our analysis, which is to identify the ordinary meaning of the 
term "made effective."   
7.1045  We note that the term "made effective" in the context of Article X:1 of the GATT 1994 has 
not been addressed by the Appellate Body or by any Panel.  However, in US – Gasoline the Appellate 
Body held in the context of Article XX(g) of the GATT 1994, that the ordinary meaning of "made 
effective when used in connection with a measure - a governmental act or regulation may be seen to 
refer to such measure being 'operative', as 'i n force', or as having 'come into effect'".1377  In the context 
of Article XX(g), the ordinary meaning of "made e ffective" thus indicates that a measure is "made 
effective" when it is "operative" and, following the Appellate Body's reasoning, operative means 
either "in force" or "come into effect".   
7.1046  The Appellate Body's approach suggests that the meaning of "made effective" is not confined 
to "officially entered into force". In our view, "m ade effective" also covers measures brought into 
effect in practice.  In other words, it may include measures that have not yet been formally adopted in 
accordance with municipal law. This understanding is supported by the ordinary meaning of 
"effective" as "actual, de facto, in effect; (of an order etc.) operative, in force"1378  and "operative" as 
                                                      
1374 European Communities' response to Panel question No. 92 (further arguing that, if the Chair would 
have such powers, there would be no need for a management procedure, for the Commission, or for the Customs Code Committee at all). 
1375 European Communities' response to Panel question No. 92.  Article 249 of the EC Treaty (which 
became Article 288 of the Treaty on the Functioning of th e European Union with the entry into fo rce of the 
Lisbon Treaty) enumerates the EU in struments that are binding, i.e.  "Regulations", "Directives" and 
"Decisions". 
1376 See paras. 7.1069-7.1070 below. 
1377 Appellate Body Report on US - Gasoline , DSR 1996:I, page 19 (citing the Shorter Oxford 
Dictionary  (1993), p. 786) (footnote omitted).  Article XX(g) of the GATT 1994 pr ovides in relevant part that 
"... relating to the conservation of exhaustible natural resources if such measures are made effective in 
conjunction with restrictions on domestic production or consumption".   
1378 The Shorter Oxford Dictionary  (2002), p. 794.  WT/DS375/R 
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  "[b]eing in operation or force, exerting force or influence".
1379  Neither of these definitions suggests 
that "made effective" covers only measures that  have officially entered into force.   
7.1047  Given the foregoing, we consider that limiting the meaning of "made effective" to include 
only measures that have officially entered into for ce in accordance with municipal law  could open the 
possibility for WTO Members to avoid the disciplin es of Article X:1, merely by asserting that a 
certain "law, regulation, ..." has not yet fo rmally entered into force under municipal law.1380  T h i s  
would run counter to the due process and transpar ency objectives reflected in the requirement in 
Article X:1 that governments and traders must be ab le to become acquainted with "laws, regulations, 
administrative rulings and judicial decisions" through prompt publication.   
7.1048  In conclusion, we are of the view that the term "made effective" under Article X:1 of the 
GATT 1994 also covers measures that were brought into  effect, or made operative, in practice and is 
not limited to measures formally promulgated or that have formally "entered into force".  We see no 
basis to adopt the more restrictiv e view proposed by the European Communities, which considers that 
"made effective" under Article X:1 refers to meas ures formally adopted un der its domestic system, 
i.e., adoption by the Commission.1381  This being so, in circumstances where the relevant measure has 
been "made effective", the requirement to publish pr omptly will arise regardless of its formal adoption 
or whether it remains a "draft" measure under the Member's municipal legal order. 
Whether the CNEN amendments were made effective before adoption by the 
Commission 
7.1049  We now proceed to examine the main question under this section, i.e. whether the CNEN 
amendments were made effective before their adoption by the Commission.  The complainants argue 
that the CNEN amendments were made effectiv e upon the voting in the Customs Code Committee; 
the European Communities argues that  the CNEN amendments were not  made effective before their 
adoption by the Commission.  Thus we need to cons ider whether the measures were made effective at 
some time between their vote in the Customs Code  Committee and their adoption by the Commission.   
7.1050  We recall that the complainants have relied on various Statements of the Chairman of the 
Customs Code Committee ("the Chairman's Statements") during its 413th, 432nd and 433rd meetings, as 
well as the BTIs issued by certain EC member St ate customs authorities.  They argue that this 
evidence proves that the CNEN amendments were made effective upon voting in the Customs Code 
Committee because it indicates "that the customs author ities of the EC member States must apply" the 
CNEN amendments "once the EC Customs Code Co mmittee had issued an opi nion", even before its 
formal adoption and official publication.1382  We further recall that the first measure at issue was 
submitted to the Customs Code Committee for an opinion in October 2006.  The opinion was favourable.  The second measure at issue was s ubmitted to the Customs Code Committee for an 
opinion in April 2007.  The opinion was a so-called "no opinion", i.e. there was no qualified majority 
in favour (a favourable opinion) or against (a non-favourable opinion). 
                                                     
 
1379 The Shorter Oxford Dictionary  (2003), p. 2006. 
1380 That is also why the way in which a Member characterises its own measures under domestic law, 
although useful, cannot be dispositive of the char acterization of such measures under WTO law (see 
footnote above). 
1381 On the issue of whether the measures were adopted through a vote in the Customs Code 
Committee, we note that the Commission is the EC body that formally adopts draft CNEN, not the Customs 
Code Committee. 
1382 United States' second written submission, para. 121;  Chinese Taipei's first written submission, para. 
473; Chinese Taipei's response to Panel question No. 156, para. 122-123. WT/DS375/R 
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  7.1051  In analysing this evidence, we will first cons ider the Chairman's statements to determine 
whether they support the complainants' arguments: thereafter, we will  turn to the BTIs.   
7.1052  We start with a description of the Chairman's Statements as reflected in the minutes of the 
respective meetings.  The minutes of the 413
th Customs Code Committee meeting, which took place 
in January 2007, refer to a discussion concerning the implications of CNEN for Set top boxes that had 
already been voted on in the Customs Code Committ ee, but not yet "published".  In particular, the 
Chairman's Statement was as follows: 
"Issuing of BTIs:   Some MS asked the question 'What is the situation with issuing 
BTIs if the measure has already been voted on but still not published (for example, 
CNEN on set-top boxes) or if the measure has been voted on but there was no qualified majority (for example, CNEN on dual use vehicles)?'  Chair stated that MS should follow the BTI guidelines (Point 11 (p. 18 to 19)).  Detailed discussion on this 
question would be a matter for a meeting of the BTI sector".
1383  
7.1053  Point 11 of the "BTI Guidelines"1384 provides that: 
"11.  Invalidation of BTIs (ex nunc) A BTI ceases to be valid: 
• Where a legal measure, e.g. a regulation is adopted by the Community. For 
the sake of coherence and uniformity in  the application of the CCT Member 
States should not issue new BTIs that are contradictory to a legal measure 
which has been voted in the Customs C ode Committee, even if this measure 
is not yet published. 
• Where the BTI is no longer compatible with the interpretation of one of the 
customs nomenclatures, e.g. following  amendments to the CN Explanatory 
notes, a judgment of the European Court of Justice, or, on international level, an HS classification opinion or amendments to the HS Explanatory notes." (emphasis added) 
7.1054  The minutes of the 432
nd Customs Code Committee meeting, which took place in October 
2007, also made reference to the CNEN for set-top boxes, indicating the following:  
"Set top boxes: Some MS raised the issue of publication of the CN Explanatory Notes 
explaining the difficulties they encounter in  practice.  Chair informed that the 
publication of the CN Explanatory Notes was planned to be accompanied by the 
introduction of the autonomous duty suspension on these products.  However, DG 
TAXUD was aware of the opposition by a number of MS to an autonomous duty suspension.  Chair reminded the MS not to issue any contradictory BTIs and to follow 
                                                     
 
1383 Customs Code Committee (413th meeting) (Exhibits US-75; TPKM -57); See also United States' 
first written submission, para. 116 and Chinese Taipei's fi rst written submission, paras. 61 and 373.  The Panel 
notes that the complainants did not submit any documents regarding such an eventual discussion in the Customs Code Committee, BTI Sector. 
1384 BTI Guidelines (Exhibits US-18; TPKM-85).  WT/DS375/R 
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  the text that had been agreed upon and ha d been made public in the Annex to the 
report of respective meeting."
1385  
7.1055  The minutes of the 433rd meeting of the Customs Code Committee, which took place in 
October 2007, mention in relevant part:  
"Use of statements in the minutes of th e Committee and the application of voted 
measures before their publication (Doc TAXUD/0716/2007). 
The Chairman presented the working document and invited Member States to reflect 
on the choice of the appropriate instrument to ensure uniform tariff classification in 
the EU.  He pointed out that the adoption of classification regulations or explanatory 
notes should be limited to cases where they are the only way to ensure uniform application.  The need to revoke conflicting BTIs is not a sufficient reason to adopt a 
classification regulation.  The Chairman recommended the increased use of statements in the reports of the m eetings of the Committee instead.  
Various Member States supported the use of  statements as a mean s to ensure quick 
decision-making.  One Member State highlighted the importance of having detailed product descriptions in such statements.  Opinions were divided on the question of 
whether unanimity or a qualified majority is  needed for the adoption of a statement.  
As statements do not have legally bindi ng value, it was pointed out that a 
classification regulation can still be adopted if afterwards legally binding value is 
required.  It was suggested to develop a da tabase listing all statements which need to 
be applied by the customs administrations. One Member State suggested that a new box could be added to the template for su bmissions in which the outcome of the 
Committee's discussions could be indicated.  
The Chairman also recalled that as soon  as the Committee has rendered an opinion on 
the classification of a specific type of product, no BTI should be issued contrary to 
that opinion and that this opinion should be respected by all Member States.  It 
follows from the above that as soon as an opinion has been voted, Member States can 
issue BTIs for the products concerned, even  before the measure has been adopted by 
the Commission and published in the Official Journal."
1386 
7.1056  We now turn to determine whether the Chairman 's Statements support the contention that the 
CNEN amendments were "made effective" prior to their formal adoption.   
7.1057  The first Chairman's Statement was made during the 413th meeting, which took place in 
January 2007 (i.e. after the October 2006 vote but before the April 2007 vote).  We agree with the 
European Communities that this first Statement do es not support the view that EC member States 
were thereby instructed to bring their classificat ion practices into conformity with the CNEN 
amendments at issue upon their vote in the Cust oms Code Committee.  In that statement, the 
Chairman merely indicated that EC member States should follow BTI Guidelines Point 11.  
According to the complainants, Point 11 of the BT I Guidelines makes it clear that a draft CNEN that 
was voted upon by the Customs Code Committee shoul d be followed by the EC member States, even 
                                                      
1385 Customs Code Committee (432nd meeting) (Exhibit TPKM-58). 
1386 Customs Code Committee (433rd meeting) (Exhibits US–20; TPKM-17).  See also United States' 
first written submission, para. 116; United States' second written submission, para. 122; Chinese Taipei's first 
written submission, para. 61; Chinese Taipei's s econd written submission, paras. 64 and 264. WT/DS375/R 
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  if not yet published in the EU Official Journal.
1387  The Panel disagrees. Point 11, quoted above at 
paragraph 7.1053 above, must be looked at as a whole and it consists of two bullets.  The 
complainants refer to the first  bullet.  It is true that this first  bullet provides that a "legal measure" 
should be followed upon its vote in the Customs Code  Committee, even if not yet published in the EU 
Official Journal.  However, this first  bullet deals with the interrelationship between BTIs and 
regulations,  which was not the context in which the firs t Chairman's statement was made. Instead, the 
Statement concerned the interrelationship between BT Is and CNEN, which is expressly dealt with in 
the second  bullet. The second  bullet refers to the invalidation of BT Is due to incompatibility with "the 
interpretation of one of the customs nomenclatures,  e.g. following amendments to the CN Explanatory 
notes". It is therefore more plausible that the Ch airman was exhorting EC member States to follow 
Point 11, second bullet.1388 For these reasons, we do not find sufficient basis in this first Statement to 
conclude that the CNEN amendments at issue s hould be followed as soon as they are voted upon by 
the Customs Code Committee. 
7.1058  We now turn to the second Chairman's Statem ent relied upon by the complainants.  This 
second Statement was made at the 432nd meeting of the Customs Code Committee, which took place 
in October 2007.1389  Like the first Statement, the second Statement explicitly refers to the 
Explanatory notes for set top boxes, reminding "the EC member States not to issue any contradictory 
BTIs and to follow the text that had been agreed upon and had been made public in the Annex to the 
report of respective meeting."  The Statement was made after the October 2006 and the April 2007 
vote.  The Statement clearly covers the first CN EN amendment at issue, which was "agreed upon" 
through a favourable opinion and which was pub lished in the annex to the report of the 407th meeting 
of the Customs Code Committee.  As for the second CN EN amendment at issue, we consider that it 
too is encompassed within the Chairm an's remarks.  Although the refe rence in this Statement is to 
"the text that had been agreed upon " (emphasis added), the fact that the second CNEN amendment 
received a "no opinion", as opposed to a favourable opinion, does not in our view bring that measure 
outside the scope of the Chairman's directi ons. Indeed, the European Communities itself has 
explained that both a "favourable opinion" and a "no opinion" indicate that the submitted text will be adopted by the Commission.
1390  "No opinion" also means that there was no qualified majority to 
disagree, i.e. to issue a "non-favourable" opinion.  As  such, we believe that the "text that had been 
agreed upon" covers both measures at issue.  In addi tion, we note that the text of the second CNEN 
amendment was equally "made public in the Annex to  the report of respective meeting", namely as an 
Annex to the report of the 420th meeting. 
                                                      
1387 See para. 7.1050 below. 
1388 Chinese Taipei itself ack nowledges that Point 11, first bullet "originally referred to classification 
regulations" but claims that "it equally applies to CN Ex planatory Notes", see Chinese Taipei's answer to Panel 
question No. 122, para. 53.   
1389 See para. 7.1054 above. 
1390 In the Panel Report on EC – Chicken Cuts , the European Communities indeed stated that: 
  
"The Customs Code Committee is a committee of Member States representatives responsible 
for monitoring the adoption of detailed secondary (delegated) legislation by the Commission (the system is known as the "Comitology" system). The Committee is asked to vote for or 
against a particular proposal.  A qualified major ity vote is required in order for the Committee 
to issue either a positive or negative opinion (for  the necessary majority, see Article 205 of the 
EC Treaty).  The adoption of a positive opinion, or the failure to arrive at an opinion, means 
that the proposal will be adopted .  Only in the event of a negative opinion will the matter be 
examined by the Council of the European  Union [...]."(emphasis added, European 
Communities' response to Panel question No. 55). 
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  7.1059  In the light of our analysis, we are of the vi ew that this second Chairman's Statement, which 
expressly relates to CNEN for set top boxes, instruct ed the customs authorities of EC member States 
"to follow" the measures at issue once voted upon but  before they were formally adopted by the 
Commission and officially published in the EU Offici al Journal.  This Stat ement sent an unambiguous 
message to EC member states: an official of the EC, in his capacity as Chairman of the Customs Code 
Committee, instructed EC member States "to follo w" the measures at issue once voted upon in the 
Customs Code Committee, but before they were o fficially published in the EU Official Journal.
1391  
The impact of this Statement, together with the vote in the Customs Code Committee, must be 
considered in determining whether in the particular  factual circumstances of this case the measures 
were indeed made effective.  We  will return to this below.   
7.1060  We turn now to the third and last Chairman's  Statement relied upon by the United States and 
Chinese Taipei, made during the 433rd meeting of the Customs Code Committee, which took place in 
October 2007 (i.e. after both the October 2006 and the April 2007 votes).1392  This Statement differs 
from the two previous Statements in that it does not explicitly refer to the CNEN for set top boxes.  
As its title indicates, this Statement relates in part  to the "application of voted measures before their 
publication".  Read in isolation, it is not clear to us whether the key phrase in the third paragraph of 
the statement – "an opinion on the classification of a specific type of product" – refers to an opinion 
by the Customs Code Committee when assessing a proposal for a CNEN amendment or whether it 
refers to an opinion concerning a draft classification regulation.   Under the circumstances, we will 
undertake an analysis of the language of the three paragraphs of this Statement.   
7.1061  We begin by noting that in the third Statemen t's first paragraph, the Chairman recommends 
the increased use of statements, as opposed to classification regulations and explanatory notes.  Then, 
in the Statement's second paragraph, reference is made to the fact that various EC member States 
supported the use of statements over regulations and explanatory notes as a means to ensure quick 
decision-making.  Given that such statements are not legally binding, the third Statement also clarified 
that if a legally binding instrument was needed, a classification regulation would still be an option.  
Hence, the second paragraph does not seem to addr ess CNENs. Finally, the more relevant third 
paragraph of the statement reads:  
"The Chairman also recalled that as s oon as the Committee has rendered an opinion 
on the classification of a specific type of product, no BTI should be issued contrary to 
that opinion and that this opinion should be respected by all Member States.  It 
follows from the above that as soon as an opinion has been voted, Member States can 
issue BTIs for the products concerned, even  before the measure has been adopted by 
the Commission and published in the Official Journal."1393 
7.1062  The third paragraph of the third Statement seems to refer to an opinion rendered in respect of 
a classification regulation, rather than a CNEN.  While classification regulations deal with "the 
classification of a specific type of product", Explan atory Notes are more general in nature and deal 
with products falling under a specific (sub)heading of  the CN.  The reference to a "measure" in the 
last sentence of this third paragraph does not cl arify the issue, since the European Communities 
                                                      
1391 We also note in the St atement that the "Chair reminded  MS not to issue any contradictory BTIs and 
to follow the text that had been agreed upon and had been made public in the Annex to the report of the 
respective meeting" (emphasis added).  This indicates to us that this statement was not made in isolation, and 
was consistent with previous statements or discussions in the Customs Code Committee. 
1392 See para. 7.1055 above. 
1393 See para. 7.1055 above. WT/DS375/R 
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  sometimes refers to CNENs as "measures."
1394  Additionally, when referring to classification 
regulations in inter alia  the BTI Guidelines, the Commission has referred to "legal measures".1395 
Furthermore, both classification regulations and the CNENs are adopted by the Commission and 
published in the EU Official Journal.1396   
7.1063  Although the European Communities argues that no  legal value should be attributed to these 
three Chairman's Statements, we consider that, whatev er formal legal authority is attributable to them, 
the Statements – in particular the second Statement – could be relevant in determining whether the 
CNEN amendments were "made effective" in the sense of  Article X:1.  In this regard, we note that the 
Chair of the Customs Code Committee is a represen tative of the Commission whose instructions on 
such matters may be presumed to carry weight a nd influence EC member States to follow them. We 
also note that under the Comitology procedure, EC member States are permitted to make comments in 
case of disagreement with the statements of the Chair.1397  However, there is no indication that the EC 
member States took issue with the Chairman's statement on this point.   
7.1064  We now turn to the BTIs, also submitted by the United States and Chinese Taipei as evidence 
to establish that the CNEN amendm ents at issue were followed afte r the vote in the Customs Code 
Committee. We will deal with these BTIs in de tail later when considering whether the CNEN 
amendments were enforced before their official publication in the context of the Article X:2 claim.1398  
For the purpose of our current analysis, however, we  emphasize four particular BTIs. These four BTIs 
refer explicitly to the measures at i ssue. Moreover, they were issued after the vote in the Customs 
Code Committee but before the CNEN amendments were published in the EU Official Journal.  These 
BTIs are the following:  
(1) FR-E4-2007-002839R1 (France, 11 July 2007);  (2) FR-E4-2007-001251 (France, 11 July 2007);  (3) FR-E4-2007-00261 (France, 11 July 2007); and  
(4) CZ05-0187-2008 (Czech Republic, 23 April 2008)
1399.  
                                                      
1394 This is the case, for example, in  Article 12(5)(a), last paragraph,  of the CCC which, when referring 
inter alia  to the invalidation of BTI because of a CNEN, read s: "[t]he date on which binding information ceases 
to be valid for the cases cited in (i) and (ii) shall be the publication of the said measures  (...)"(emphasis added) 
(Exhibits US-19; TPKM-16). 
1395 See para. 7.1054 above. 
1396 Here again, like in the Second Statement, the Ch airman "reminded" the EC member States of the 
importance of the vote in the Customs Code Committee.  In our view, the use of the term "reminded" suggests 
that this was not a Statement made in isolation. 
1397 We note that the EC member States did not ma ke a comment on the minutes of these meetings.  
Article 12 (1), second paragraph of the Rules of Procedure of the Customs Code Committee provides that "[t]he 
committee members shall send any written comments they may have on the minutes to the Chairman.  The 
committee shall be informed of this; if there are any di sagreements, the proposed amendment shall be discussed 
by the committee.  If the disagreement persists, the proposed amendment shall be annexed to the minutes".  
(Exhibits US-19; TPKM-16). 
1398 See paras. 7.1128 and following. 
1399 The three French BTIs mention under "classification justification": "[...] Decision of the Customs 
Committee during its 420th meeting held on 18, 19 and 20 Apr il 2007", while the Czech BTI mentions 
"[e]xplanations for CN re subheading 8528 71 13". (see Exhibit US- 28: the Original French BTIs mention 
"Decision du Comité des douanes lors de la 420ème session des 18, 19 et 20 avril 2007".  The two complainants 
provided a translation of the Czech BTI that wa s not contested by the Eu ropean Communities).    WT/DS375/R 
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  7.1065  We stress that we do not consider that estab lishing that a measure was "made effective" 
necessarily requires proof that the measure at issue was indeed applied in practice.  However, we 
consider that BTIs may nonetheless serve as an indi cation that the CNEN amendments at issue were 
made effective in the sense that term is used in  Article X:1 of the GATT 1994.  Moreover, the BTIs 
submitted by the complainants indicate that, in a number of instances, some EC member States did indeed use the measures at issue in making classifi cation decisions, prior to their formal adoption by 
the European Communities.   
7.1066  For all the foregoing reasons, we consider that  the various elements discussed above – the 
votes of the Customs Code Committee; the statement of the Chair in the 432
nd meeting and certain 
BTIs issued by EC member States with explicit refere nce to the measures at issue – form a particular 
constellation of facts, particular to this case, whic h supports the position of the two complainants that 
the draft CNEN were "made effective" as that term  is understood in Article X:1 of the GATT 1994.  
7.1067  At this point, we would underline the particular  character of the facts before us. They are 
particular in the sense that in light of the submissi ons before us, they appear to deviate from ordinary 
EC law and practice. The European Communities h as emphasized throughout its submissions that a 
vote in the Customs Code Committee on a measure should not have the consequences advocated by 
the two complainants.  That is, a vote should not have  been used as a basis for classification decisions 
prior to formal adoption and, to the extent that the Chair of the Customs Code Committee advised otherwise, such statements from the Chair would not  be consistent with EC law. According to the 
European Communities, a vote in the Customs Code Committee is a step in th e "legislative" process 
and should not be considered as anything more than  that; a measure should take effect only once the 
"legislative" process is finalized. Under EC law, the European Communities st ates, such legislative 
process is finalized once the measure is adopted by the Commission and published in the EU Official 
Journal, and not when it is merely a "preparatory" act.   
7.1068  In this regard, the Panel emphasizes that it h as made no findings with respect to the general 
status and effect of a vote in the Customs Code  Committee under EC law: nor has it made a finding 
that such a vote will in every case mean that a meas ure has been "made effective". Rather, the Panel 
considers that, in the particular circumstances of th is case, the cumulative effect of the votes in the 
Customs Code Committee, the relevant BTIs and the Second Statement by the Chair, are such that the 
measures at issue were "made e ffective" within the meaning of Article X:1 of the GATT 1994.  
When were the CNEN amendments made effective? 
7.1069  Having determined that the CNEN amendmen ts were "made effective", we must now 
determine when the CNEN amendments were "made effective". This will give us the necessary 
"reference point" for determining in the next sec tion whether the CNENs were published "promptly" 
once "made effective". Up to now, we have dete rmined that the CNEN amendments were made 
effective before their adoption by the Commission, and before their publication. We note that the 
votes in the Customs Code Committee took place in  October 2006 and April 2007; that the second 
statement of the Chair is dated October 2007; and that some of the relevant BTIs were issued in July 
2007.  Bearing these factors in mind, we conclude th at the CNEN amendments were made effective, 
at the latest, at the time of the October 2007 statem ent of the Chair. We emphasize that we reach this 
conclusion on the basis of the particular circumstan ces of the case considered as a whole, namely the 
votes on the CNEN amendments in the Customs Code  Committee; the Chairman's statement and the 
BTIs citing the CNEN amendments as "classificati on justification". The cumulative effect of these 
factors leads us to the conclusion that the measu res were made effective by October 2007, at the 
latest.   WT/DS375/R 
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  7.1070  Hence, we will now proceed to consider wh ether the measures at issue were published 
"promptly" and "in such a manner as to enable gove rnments and traders to become acquainted with 
them".   
(iv) Whether the measures at issu e were published "promptly"  
Arguments of the parties  
7.1071  The United States  argues that the CNEN amendments were not published "promptly" as 
required by Article X:1 of the GATT 1994.  The Unite d States submits that "prompt" means "done ... 
without delay".1400  The United States refers to the GATT Panel in EEC – Apples (US)  in which a 
violation was found because of the European Comm unities' failure to publish its measure until two 
months after it was in effect.1401  With regard to the present dispute, the United States points out that 
the measures at issue were approved by the Cu stoms Code Committee in October 2006 and April 
2007, but that they "did not appear in the EC's offi cial gazette for over a year after approval, making it 
virtually impossible for affected companies and other Members to access them in a reasonable 
manner".1402  As a consequence, the United States submits,  the eventual publicatio n of the measures in 
the EU Official Journal does not constitute prompt publication. Chinese Taipei  advances a similar 
understanding of the term "prompt" as used in Article X:1 and argues that "since the draft CNEN 
relating to STBCs with a hard disk drive was 'mad e effective' in April 2007, the publication thereof 
made in May 2008 cannot be considered to ha ve been done 'promptly' or 'without delay'".1403 
7.1072  The European Communities , however, argues that the amended CNEN was adopted by the 
Commission only at the end of April 2008 and that it was "promptly" published on 7 May 2008.1404  
In the alternative, the European Communities notes that even if the measures at issue had been made 
effective upon the vote in the Customs Code Co mmittee – which it strongly contests – the CNEN 
amendments at issue were "published promptly via the Comitology website".1405  In particular, the 
European Communities argues that the measures at issue were published as annexes to the minutes of 
the 407th and 420th meetings of the Customs Code Committee and that "[t]hese reports are available 
on the Comitology website usually within 3 weeks after the meeting".1406 
Consideration by the Panel  
7.1073  Having established that the measures at issue were  "made effective" at the latest by October 
2007, the Panel is first required to consider whet her the measures at issue were published "promptly" 
within the meaning of Article X:1 of the GATT 1994.  If we answer this in the affirmative, we will 
consider whether the prompt publication of the CNEN amendments was "in such a manner as to 
enable government and traders to become acquainted with them".   
7.1074  We begin by recalling that Article X:1 of th e GATT 1994 requires that "laws, regulations, 
judicial decisions and administrative rulings, made ef fective by a contracting party, pertaining to the 
classification ... of products for customs purposes sha ll be published promptly in such a manner as to 
                                                      
1400 United States' response to Panel question No. 159. 
1401 United States' response to Panel question No. 159, para. 81. 
1402 United States' first written submission, paras.  112 and 116; United States' second written 
submission, para. 120. 
1403 Chinese Taipei's response to Panel question No. 159, para. 132. 
1404 European Communities' first written submission, para. 308. 
1405 European Communities' comment to the responses of the two complainants to Panel question 
No. 157, para. 196. 
1406 European Communities' first written submission, para. 299.  WT/DS375/R 
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  enable governments and traders to become acquainted with them".  It does not, however, specify what 
"promptly" means, i.e. what is the permissible time span between  the moment that such measure is 
"made effective" and the time it is "published".  In this regard, we note that the adverb "promptly" is 
defined as "[i]n a prompt manner; readily, quickly; at once, without delay; directly, forthwith, there 
and then."
1407  The word "prompt", as an adjective, means, inter alia,  "2. a. Ready in action; quick to 
act when occasion arises; acting with alacrity, or  without undue delay; ready and willing; quick to do 
something."1408  In our view, the meaning of prompt is not an  absolute concept, i.e. a pre-set period of 
time applicable in all cases.1409  Rather, an assessment of whether a measure has been published 
"promptly", that is "quickly" and "without undue delay", necessarily requires a case-by-case 
assessment.1410  Accordingly, we will look at the time span between the moment the CNEN 
amendments were "made effective" and the time th ey were "published", and assess whether this is 
prompt in light of the facts of the case.   
7.1075  The European Communities has suggested that the measures at issue were published twice, 
i.e. in the EU Official Journal and on the Comitolo gy website.  We note that the text of the measures 
indeed appears both in the EU Official Journal and in the Comitology website (more particularly, as 
Annexes to the minutes of the 407th and 420th meeting of the Customs Code Committee).  Therefore, 
we will consider each in terms of whether such pub lication was "prompt" vis-à-vis October 2007 (our 
"reference point").  Only if at least one of these pub lications is considered "prompt", will we turn to 
the next step in our analysis and determine whet her the prompt publication was "in such a manner as 
to enable governments and traders to become acquain ted with them".  This is because the requirement 
to publish promptly and the requirement with resp ect to the manner of publication (i.e., in such a 
manner as to enable governments and traders to become acquainted with them) are cumulative 
requirements under Article X:1.    
7.1076  We start with the publication in the EU Official Journal.  The CNEN amendments were 
published in the EU Official Journal on 7 May 2008, while "made effective" at the latest by October 
2007.  Thus, the CNEN amendments were published in the EU Official Journal at least eight months 
after they were made effective.  In the circumstan ces of this case and in light of the nature of the 
measures at issue, we consider that publication af ter eight months does not meet the requirement to 
publish "promptly".  A significant number of trader s and trade can be affected during an eight-month 
period. We observe as well that the publication on 7 May 2008 followed shortly after the adoption by 
the Commission at the end of April 2008, and that minutes of meetings of the Customs Code 
Committee are available on the Comitology website  "usually within 3 weeks after the meeting".1411  
This suggests that such information should be made public within weeks rather than months, and that 
such is the "usual" practice of the European authorities.  Under the ci rcumstances of this case, we are 
                                                      
1407 The Shorter Oxford Dictionary  (2003), p. 2366. 
1408 The Shorter Oxford Dictionary  (2003), p. 2376.  "Prompt" is also defined as "to move to action", 
see Merriam-Webster Online Dictionary. Retrie ved 4 December 2009, fr om http://www.merriam-
webster.com/dictionary/prompt. 
1409 In EEC – Apples (US) , para. 5.21, the GATT Panel found that "no lapse of time between 
publication and entry into force was specified" by Article X:1. 
1410 In US - Wheat Gluten , the Appellate Body used a similar approach when it considered the meaning 
of the term "immediately" with respect to the obligation under Article 12.1 of  the Agreement on Safeguards to "immediately notify" the Committee on Safeguards upon certain actions they may take.  The Appellate Body 
agreed with the Panel that the ordinary meani ng of "immediately" "implies a certain urgency", 
adding however that the degree of urgency or immedi acy required "depends on a case-by-case assessment." 
(Appellate Body Report on US - Wheat Gluten , para. 105). 
1411 European Communities' first written submissions, para. 299. WT/DS375/R 
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  not persuaded, nor has the European Communities offered any support for its contention otherwise
1412, 
that publishing the CNEN amendments eight months  after they were made effective qualifies as 
"prompt" under Article X:1. Hence, we find that the publication of the CNEN amendments in the EU 
Official Journal was not prompt.  In view of this finding, we do not need to consider whether the 
publication in the EU Official Journal was "in such  a manner as to enable governments and traders to 
become acquainted with them".   
7.1077  We now turn to the publication of the CN EN amendments on the Comitology website  as 
annexes to the minutes of the respective Customs C ode Committee meetings.  It is not clear when 
those minutes were posted on the Comitology website.  We note that the minutes of the 407th meeting 
held from 18 to 20 October 2006 are dated "19 Decemb er 2006" (the date of the report) and that the 
minutes of the 420th meeting held from 18 to 20 April 2007 are dated "31 May 2007" (the date of the 
report).  We will therefore consider whether publi cation was prompt on the basis of the dates of 19 
December 2006 and 31 May 2007.  At the outset, we note that both dates occur before  the date we 
considered the latest date as from which the CNEN  amendments became effective (October 2007).  It 
is clear that publication prior to the date the measu re was made effective satisfies the requirement to 
publish "without delay" and hence that the measure  was published promptly.  Having found that the 
publication of the CNEN amendment in the Comitolo gy website was prompt, we must now determine 
whether the publication of the CNEN amendment in the Comitology website satisfies the requirement 
in Article X:1 of being published "in such a manne r as to enable governments and traders to become 
acquainted with them".   
(v) Whether the measures at issue were published "in such a manner as to enable governments 
and traders to become acquainted with them". 
Arguments of the parties  
7.1078  The United States and Chinese Taipei  consider the publication in the EU Official Journal as 
not being prompt and argue that the publication of  the measures at issue on the Comitology website 
does not meet the standard of publication require d by Article X:1 of the GATT 1994. According to 
Chinese Taipei , to assess whether a publication has been made in such a manner as to enable 
governments and traders to become acquainted with th em, "it is necessary to put oneself at the level of 
the newcomer wishing to enter a new market rather than at the level of the experienced insider who 
through his contacts or specialised knowledge is able to obtain information which is otherwise 
difficult to obtain".  Chinese Taipei submits that, wh en applying this standard, it is "obvious" that the 
inclusion of a document on the EC Comitology website is insufficient to comply with the requirements of Article X:1 because "the Comitology website contains thousands of documents issued 
by hundreds of different Committees.  Unless one  knows the precise name of the Committee dealing 
with the issue of the specific document number" it argu es, "it is impossible to retrieve information of 
how a product is treated".  Chinese Taipei gives th e example of searching for a decision relating to 
"set top boxes", where the result of the search would be "0 document(s) found".
1413 The United States 
argues that "the measures in question were not publis hed for over a year after they were enforced and 
made effective, whether in the EC Official Jour nal or in another medium readily available to 
                                                      
1412 The European Communities has limited itself to stating that "it is factually and legally incorrect to 
say that the CNEN were published over a year after th eir adoption", since in its view the CNEN amendment 
were only made effective upon adoption by the Commi ssion (European Communities' first written submission, 
para. 307). 
1413 Chinese Taipei's comment on the European Communities' response to Panel question No. 157, 
paras. 44-45.  WT/DS375/R 
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  Members and traders"
1414 making it "virtually impossible" for affected companies and other Members 
to access them in a reasonable matter.1415  Accordingly, the United States  argues that making the text 
of the measures at issue available in the minutes of the Customs Code Committee does not satisfy the 
requirement of Article X:1 of the GATT 1994. 
7.1079  The European Communities  submits that the measures at issue were promptly published in 
the EU Official Journal because the measures were  made effective on 29 April 2008 and that such 
publication meets the requirements of Article X:1.   Alternatively, the European Communities notes 
that the opinions of the Customs Code Committee de livered in the management procedure "while only 
stages in the legislative procedure" were "made avai lable" in the reports containing the minutes of the 
meetings of the Customs Code Committee "to a llow for maximum transparency on the activities of 
the EC institutions".1416  In this respect, the European Communities points out that the laws, 
regulations, judicial decisions and administrative ruli ngs of general applicati on covered by Article X:1 
"do not need to be communicated via an official ga zette and, depending on the circumstances, even a 
communication via a website may be sufficient".  The European Communities argues that such 
circumstances "may also include th e fact that the economic operators  are used to getting information 
via the website and are aware that the government communicates certain matters in this way".1417   
Consideration by the Panel  
7.1080  The Panel recalls its finding in paragraph 7.1 076 that in this case, the publication of the 
CNEN amendments in the EU Offici al Journal cannot be considered "prompt" and that hence, we do 
not need to consider whether that publication w as "in such a manner as to enable governments and 
traders to become acquainted with them".  Accord ingly, we will consider only whether publication on 
the Comitology website, which we considered to be  "prompt" in the circumstances of this case, was 
"in such a manner as to enable governments and traders to become acquainted with them". 
7.1081  We note that Article X:1 contains two closely lin ked requirements.  The first is that measures 
subject to Article X are "published", and the second is that such publication is "in such a manner as to 
enable governments and traders to become acquainted with them".   
7.1082  Regarding the requirement that measures are " published", the Panel first notes a difference 
between Article X:1 and Article X:2.  While Ar ticle X:1 requires that measures be "published", 
Article X:2 refers to measures having been "offi cially published".  The absence of the adverb 
"officially" in Article X:1, which is present in Article  X:2, clarifies that the publication of the relevant 
measure does not need to be in an "official" publication in order to satisfy Article X:1.   
7.1083  The Panel in Chile – Price Band System analysed the meaning of the phrase "to publish" in 
light of the requirement to "publish" safeguard investigation reports under Article 3.1 of the 
Agreement on Safeguards .  This analysis may be of some relevance in the present dispute, especially 
given that Article 3.1 of the Agreement on Safeguards expressly refers to Article X of the GATT 
1994. 1418  In the relevant parts of its Reports, that Panel made the following observations and finding: 
                                                      
1414 United States' response to Panel question No. 157, para. 79. 
1415 United States' first written submission, para. 116. 
1416 European Communities' first written submission, para. 299. 
1417 European Communities' response to Panel question No. 157, para. 167. 
1418 Article 3.1 of the Agreement on Safeguards  states in relevant part: 
 "A Member may apply a safeguard measure only following an investigation by the competent 
authorities of that Member pursuant to procedur es previously established and made public in WT/DS375/R 
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  "[W]e note that the Minutes of the relevant [Chilean Distortion Commission] sessions 
have not been 'published' through any official  medium.  Rather, they were transmitted 
to the interested parties and placed at the disposal of 'whoever wishes to consult them 
at the library of the Central Bank of Chile '.  In order to determine whether it is 
sufficient under Article 3.1 of the Agreemen t on Safeguards to make the investigating 
authorities' report 'available to the public' in  such a manner, we first refer to the 
dictionary meaning of 'to publish'.  The term  can mean 'to make generally known', 'to 
make generally accessible', or 'to make generally available through [a] medium'.  We 
therefore turn to the context of Artic le 3.1 provided by similar publication 
requirements in the AD and SCM Agreements.  (...)  In addition, we also note that 
various 'transparency' provisions in the c overed agreements, such as Article III of the 
GATS, Article 63.1 of the TRIPS Agreement,  and Article 2.11 of the TBT Agreement 
all distinguish between 'to publish' and 'to ma ke publicly available'.  In the light of 
these considerations, we find that the verb 't o publish' in Article 3.1 of the Agreement 
on Safeguards must be interpreted as meani ng 'to make generally available through an 
appropriate medium', rather than simply 'm aking publicly available'.  As regards the 
minutes of the relevant [Chilean Distortion Commission] sessions, we therefore find that they have not been generally made available through an appropriate medium so 
as to constitute a 'published' report with in the meaning of Article 3.1 of the 
Agreement on Safeguards."
1419 
7.1084  We agree with this approach and consider th at the same reasoning can be applied to the 
publication obligation in Article X:1. As noted a bove, Article X:1 requires that publication be "in 
such a manner as to enable governments and traders to become acquainted with them".  In our view, if 
measures are to be published "in such a manner as to enable governments and traders to become 
acquainted with them", it follows that they must  be generally available through an appropriate 
medium rather than simply making them publicly available.1420      
7.1085  We observe that the rationale behind the pu blication requirement in Article X of the 
GATT 1994 is to ensure due process and transparen cy about measures that affect governments and 
traders.  If such measures were not published, governments and traders would not necessarily know 
what conditions would apply to their goods when im ported into a Member's territory.  Publication 
thus offers the possibility for governments and traders to learn of "laws, regulations, judicial decisions 
and administrative rulings of general application" applicable to trading with that Member or its 
nationals.   
7.1086  A textual analysis of the publication requiremen t in Article X:1 bears out this understanding.  
The definition of the word "manner" is "senses relati ng to the way in which an action is performed" or 
"the way in which something occurs or is perfo rmed; a method of action; a mode of procedure."1421  
The term "to enable" can be understood as "to give pow er to (a person); to st rengthen, make adequate 
                                                                                                                                                                     
consonance with Article X of GATT 1994.  (...)  The compet ent authorities shall publish a 
report setting forth their findings  and reasoned conclusions reached  on all pertinent issues of 
fact and law."  
1419 Panel Report on Chile – Price Band System , para. 7.127 (referring to the Shorter Oxford 
Dictionary , p. 2405). 
1420 In other words, if a "medium" makes measures generally available to the public in such a manner as 
to "enable governments and traders to become acquainted with them", we consider that such medium should be 
regarded as "appropriate" and that publishing on that medium would fall within "published" a used in Article X:1. 
1421 The Shorter Oxford Dictionary  (2002), p. 1692.  WT/DS375/R 
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  or proficient", "to impart to (a person or agent)  power necessary or adequate for a given object; to 
make competent or capable", "to supply with the re quisite means or opportunities to an end or for an 
object" or "to make possible or easy; also to give effectiveness to (an action)".
1422  Finally, the term 
"acquainted" means "personally known; familiar, through being known", or "having personal or 
experimental knowledge; possessed of persona l knowledge, more or less complete."1423  Thus, it is 
clear from the a textual analysis of Article X:1 that it is not any manner of publication that would satisfy the requirement, but only those that would give power to or supply governments and traders 
with knowledge of the particular measures that is  "adequate" so that traders and Governments may 
become "familiar" with them, or "known" to them in a "more or less complete" way.  
7.1087  In our view, making the minutes of the Customs Code Committee, with draft CNENs 
attached, available on the Comitology website does not meet this standard. In particular, we note that 
there is nothing in the minutes, or the draft CNENs attached, that would supply traders and 
governments with adequate knowledge of measures that  are or would be applied in trading with the 
EC member States.  Indeed, the publication of th e respective reports of the Customs Code Committee 
meetings merely provided the text of the CNEN am endments, specifying that these were "drafts".  In 
addition, the documents contain placeholders for th e reference number of the measure, e.g. "(2006/C 
... ../..)" in the first case and "(2007/C ... ../..)" in the second case.
1424  In light of this, the Panel finds 
that, in the circumstances described above, posti ng the draft CNEN on the Comitology website does 
not constitute publication "in such a manner as to  enable governments and traders to become 
acquainted with them".   
                                                      
1422 The Shorter Oxford Dictionary  (2002), p. 819. 
1423 The Shorter Oxford Dictionary  (2002), p. 20. 
1424 More particularly, the first CNEN amendment wa s published as Annex VI to the Summary of the 
conclusions of the 407th meeting of the Customs Code Committee.  The text itself is titled "Draft CNEN on 
Satellite receivers with built-in modem", while the refere nce number "(2006/C ... ../..)" is not yet completed.  
The text of Annex VI begins as follows:  
"Draft CNEN on "Satellite recei vers with built-in modem ": 
UNIFORM APPLICATION OF THE COMBINED NOMENCLATURE (CN) 
(Classification of goods) (2006/C …../..) 
Explanatory notes adopted in accordance with the procedure de fined in Article 10 (1) of 
Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical 
nomenclature and on the Common Customs Tariff  
The explanatory notes to the Combined Nomenclature of the European Communities shall be amended as follows: 
[...]" 
The second measure at issue was published as Annex IV to the Report of Conclusions of the 420
th 
meeting of the Customs Code Committee.  Again, the text  itself is titled "Draft CN Explanatory Notes: Set-top 
box incorporating a hard disk", while the reference number  "(2007/C ... ../..)" is not yet completed.  The text of 
Annex IV begins as follows:  
"Draft CN Explanatory Notes: Set-top box incorporating a hard disk  
UNIFORM APPLICATION OF THE COMBINED NOMENCLATURE (CN) 
(Classification of goods) (2007/C …../..) 
Explanatory notes adopted in accordance with the procedure de fined in Article 10 (1) of 
Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff  
The explanatory notes to the Combined Nomenclature of the European Communities shall be 
amended as follows: [...]" 
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  (vi) Conclusions regarding the complainants' claim under Article X:1 
7.1088  The Panel determined in the above sections that  the measures at issue were included in the 
scope of Article X:1 and that they were "made effe ctive" at the latest by October 2007.  We then 
considered two possible "publications" of the measur es: (i) in the EU Official Journal (ii) on the 
Comitology website.  We found that the publication in the first instance was not "prompt", while the 
publication in the second case, although prompt, was not  "in such a manner as to enable governments 
and traders to become acquainted" with the measures at issue.  Acco rdingly, we conclude that the 
European Communities violated its obligation in  Article X:1 to publish promptly the CNEN 
amendments in such a manner as to enable government s and traders to become acquainted with them.   
(d) The United States' and Chinese Taipei's claim under Article X:2 of the GATT 1994 
(i) Main claims of the parties  
Arguments of the parties
 
7.1089  The measures at issue are, as described above , the proposed amendments to the CNEN as 
voted by the Customs Code Committee in October 2006 and April 2007.  The Chairman's Statements 
and the BTIs are submitted as evidence in support of  the claims.  These statements and the BTIs are 
thus not measures at issue.1425   
7.1090  The United States and Chinese Taipei  argue that, because some EC member States applied 
the measures at issue before  the official  publication of the CNEN amendments in the EU Official 
Journal on 7 May 2008, the European Communities has violated Article X:2 of the GATT 1994.   
7.1091  The European Communities  responds that Article X:2 of the GATT 1994 does not apply in 
the present case because the conditions for Article  X:2 are not met. The European Communities 
argues that the CNEN amendments at issue cannot be  a "measure of general application" because of 
their specific characteristics. Further, the Europ ean Communities submits that the CNEN amendments 
at issue did not effect an advance in rate of  duty under an established and uniform practice. The 
European Communities also submits th at their specific characteristics,  together with their character as 
"preparatory" acts, excludes them from being "enforced". The CNEN amendments cannot be 
enforced.  In the alternative, the European Communities argues th at the United States and Chinese 
Taipei have not submitted sufficient proof that th e measures at issue have violated Article X:2. 
7.1092  Amongst the third parties only the Philippines submits arguments in relation to Article X:2.  
Like the United States and Chinese Taipei, the Phili ppines submits that the European Communities 
applied the measures at issue before  the official  publication of the CNEN amendments in the EU 
Official Journal on 7 May 2008 and that, in doing so, it violated Article X:2 of the GATT 1994.1426 
Consideration by the Panel  
7.1093  Article X:2 of the GATT 1994 provides that: 
"No measure of general app lication taken by any contracting party effecting an 
advance in a rate of duty or other charge on imports under an established and uniform 
practice or imposing a new or more bur densome requirement, restriction or 
                                                      
1425 See paragraph 7.1008 above. 
1426 The Philippines' third party submissions, paras. 41 and 44.  WT/DS375/R 
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  prohibition on imports, or on the transfer of payments therefor, shall be enforced 
before such measure has b een officially published." 
7.1094  The Panel recalls the following statement of the Appellate Body in US - Underwear  that 
Article X:2 of the GATT 1994 embodies the principle of transparency and due process:  
"Article X:2, General Agreement, may be se en to embody a principle of fundamental 
importance – that of promoting full disclosure of governmental acts affecting Members and private persons and enterprises, whether of domestic or foreign nationality.  The relevant policy principl e is widely known as the principle of 
transparency and has obviously due process di mensions.  The essential implication is 
that Members and other persons affected, or  likely to be affected, by governmental 
measures imposing restraints, requireme nts and other burdens, should have a 
reasonable opportunity to acquire authentic  information about such measures and 
accordingly to protect and adjust their activ ities or alternatively to seek modification 
of such measures."
1427  
7.1095  We understand Article X:2 of th e GATT 1994 to contain five conditions: (i) the existence of a 
"measure"; (ii) the measure is of "general appli cation"; (iii) the measure is taken by a contracting 
party (WTO member); (iv) the measure is of the type described in Article X:2 (i.e. a measure "effecting an advance in a rate of duty or other charge on imports under an established and uniform 
practice or imposing a new or more burdensome requi rement, restriction or prohibition on imports, or 
on the transfer of payments therefore"); and (v)  the measure was enforced before its official 
publication.  We will analyse each of these in turn.  
(ii) Whether the measures at issu e are a "measure" and, if so, whether they are of "general 
application" and "taken by a contracting party" 
Arguments of the parties
 
7.1096  According to the United States and Chinese Taipei , the CNEN amendments at issue are 
"measures" of "general applicati on" for the same reasons that they are a "law, regulation, ..." of 
"general application" under Article X:1. Similarly, the arguments invoked by the European Communities to reject the Article X:2 claim are sim ilar to those raised in its defence against the 
applicability of Article X:1.
1428  The parties have not raised any particular arguments regarding the 
requirement that the measures are those taken by a WTO Member.  
Consideration by the Panel  
7.1097  We now turn to consider whether the first thre e conditions are met, i.e., whether each of the 
CNEN amendments at issue is a "measure" of "gener al application", "taken by a contracting party", 
i.e., a WTO Member.  In our analysis of Article X:1 above1429, we found that the CNEN amendments 
at issue are contemplated by that range, namely, a "law, regulation, judicial decision [or] 
                                                      
1427 Appellate Body Report on US - Underwear , DSR 1997: I, p. 29. 
1428 See, in particular, the United States' response to Panel question No. 156 (invoking the Appellate 
Body Report on US – Corrosion-Resistant Steel Sunset Review , para. 85); Chinese Taipei's second written 
submission, paras. 280-281 and 283-285 (invoking the Appellate Body Report on US – Anti-Dumping Measures 
on Oil Country Tubular Goods , para. 187); and the European Communities' first written submission, para. 310; 
European Communities' second oral statement, para. 92;  European Communities' response to Panel question No. 156, para. 166. 
1429 See paragraph 7.1027 below. WT/DS375/R 
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  administrative ruling".  Article X:2 refers simply  to "measure" and hence encompasses an even 
broader category – namely, any act or omission by a WTO Member.  It follows therefore that the drafters intended to include a broad range of meas ures that have the potential to affect trade and 
traders.  We conclude that the CNEN amendmen ts at issue qualify as "measures" in the sense of 
Article X:2.  We also found above
1430 that the CNEN amendments are of "general application".  We 
see no reason to depart from this finding when consider ing the identical terms "general application" in 
our Article X:2 analysis.  Hence, we conclude that  the CNEN amendments are a "measure of general 
application" in the sense of Article X:2.  In addition,  we note that the measure at issue must be "taken 
by a contracting party" (WTO member), as was the case here.  
(iii) Whether the measures at issue are of a kind eff ecting an advance in rate of duty under an 
established and uniform practice 
7.1098  We will divide the arguments of the parties a nd our analysis into two subsections.  We will 
start with defining the meaning of the terms "effect ing an advance in a rate of duty" and consider 
whether the CNEN amendments at issue effect an adva nce in a rate of duty.  If we answer this in the 
affirmative, we will next assess the meaning of "under an established and uniform practice" and 
consider whether the CNEN amendments at issue effect an advance in a rate of duty under an 
established and uniform practice.   
"effecting an advance in rate of duty"  
Arguments of the parties 
7.1099  The United States  submits that an "advance" in a rate of  duty is a "rise", an "increase" in the 
rate of duty.  It argues that the CNEN amendments at  issue "effect" an advance in a rate of duty since 
its application "resulted in the reclassification of  STBCs from a duty-free tariff line into a tariff line 
with duties of up to 14 per cent".1431  The United States argues that, "absent the CNEN, at least some 
member States would not have imposed duties on the products at issue", and that "[b]y imposing 
uniformity throughout the EC, the CNEN thus at a mi nimum 'effect[s] an advance in rate of duty' for 
those portions of the EC customs territory that were imposing non-uniform lesser duties".1432  T h e  
United States further argues that to fall under the di sciplines of Article X:2, the measures at issue need 
not be the only cause for such increase.  It submits that Article X:2 does not contain any reference to a 
"causation requirement or set any particular threshold".1433  As long as the measure "effects" an 
advance in the rate of duty, the measure would need to  be officially published prior to its enforcement.  
Chinese Taipei  similarly interprets an "advance" in rate  of duty as an "increase" in the rate of 
duty.1434 Chinese Taipei argues that the me asures at issue effect an advance in the rate of duty in that 
they result in some types of STBCs – Chinese Taipei  cites in particular those with a hard disk – 
becoming subject to duties pursuant to the new cl assification imposed by the measures at issue.1435 In 
its view, "the CNEN have introduced certain classi fication criteria such as the presence or absence of 
a hard disk drive or of certain specific modem ty pes that were not mentioned previously in the 
applicable customs legislation and this has led to a change in classification practice of the member States" and to higher duties for STBCs. Like the United States, Chinese Taip ei also submits that 
                                                     
 
1430 See paragraph 7.1034 below. 
1431 United States, first written submission, para. 11 8; United States' response to Panel question 
No. 160, para. 83. 
1432 United States' response to Panel question No. 161, para. 84. 
1433 United States' response to Panel question No. 160, para. 82. 
1434 Chinese Taipei's response to Panel question No. 160. 
1435 Chinese Taipei's first written submission, paras. 470 and 478.  WT/DS375/R 
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  nothing in the text of Article X:2 of the GAT T 1994 requires that the measure at issue be the sole 
cause for such an increase.
1436  Both the United States and Chinese Ta ipei argue that the various BTIs 
they have submitted to the Panel constitute proof that the measures at issue effected an advance in the 
rate of duty.1437  
7.1100  The European Communities submits that the measures at issu e merely lead to a "technical 
reclassification" into another tariff line, but not to an "increase in the duty rate" levied by the 
European Communities.  In the European Communiti es' view, the United States and Chinese Taipei 
fail to provide evidence of an increase in a rate of du ty by virtue of the CNEN amendments at issue.  
The European Communities argues that none of the submitted BTIs classifies any of the products at 
issue in a duty-free code.  To the contrary, it ar gues, all these BTIs indicate tariff lines bearing the 
same duty of 14 per cent and do not, therefore, constitu te evidence of a breach of Article X:2 of the 
GATT 1994.1438 
Consideration by the Panel 
7.1101  Article X:2 requires that the measure "effect[s] an  advance in a rate of duty or other charge on 
imports under an established and uniform pr actice or imposes a new or more burdensome 
requirement, restriction or prohibition on imports, or  on the transfer of payments therefore".  Given 
the way this claim has been presented and argued, the more specific question before us is whether the 
CNEN amendments at issue are of a kind "effecting an  advance in the rate of duty" and whether they 
do so "under an established and uniform practice".   
7.1102  As mentioned above, we will st art by determining whether th e CNEN amendments at issue 
effect an advance in a rate of duty.  If this is an swered in the affirmative,  we will determine whether 
the CNEN amendments effect an advance in a rate of duty under an established and uniform practice 
and if so, whether they meet this requirement.   
7.1103  We thus turn to the meaning of the terms "effecting an advance in a rate of duty".1439  The 
Panel begins its analysis by noting that "effecting"  comes from the verb "to effect".  "[T]o effect" 
inter alia  means to "bring about (an event or result)"1440; "to cause to come into being"; "to put into 
operation".1441  
                                                      
1436 United States' response to Panel question No. 160,  para. 82; Chinese Taipei's response to Panel 
question No. 160, para. 133. These BTIs will be analyzed in more detail below at 7.1133-7.1135. 
1437 United States' first written submission, para. 116;  Chinese Taipei's response to Panel question 
No. 161, para. 135. 
1438 European Communities' comments on United States' and Chinese Taipei's responses to Panel 
question Nos. 157, paras. 190; 194-195; 197 and 160, para. 197. 
1439 The Spanish and French versions of the GATT 1994 confirm this view.  The Spanish language 
version mentions "que tenga por efecto", literally "that has the effect of".  In Spanish, "e fecto" is defined as "[l]o 
que sigue por virtud de una causa", i.e. what follows by virtue of a cause.  The French text mentions " qui 
entraînerait" which comes from the verb "entraîner" which means "4. [a]voir pour conséquence nécessaire, 
inévitable.  amener, causer, implique r, occasionner, produire, provoquer,  déclencher" (see Diccionario de la 
lengua Española, Real Academia Española, vigésima primera edición, 2001, p. 558 and Le nouveau Petit Robert 
(2000), p. 874). 
1440 The Shorter Oxford Dictionary  (2002), p. 794. 
1441 effecting. (2009). In  Merriam-Webster Online Dictionary . Retrieved 7 December 2009, from 
http://www.merriam-webster.com/dictionary/effecting. WT/DS375/R 
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  7.1104  The ordinary meaning of "bring about" is "cause to happen, accomplish".
1442  According to 
the Merriam-Webster online Dictionary, "[t]he verb  effect goes beyond mere influence; it refers to 
actual achievement of a final result".1443   
7.1105  We see similarities between the word "effecting" and "to cause".  With regard to the verb "to 
cause" in particular, the Panel in US – Lamb clarified that "[t]he word 'to cause' means 'effect, bring 
about, occasion, produce, induce, make', or also 'to serve as cause or occasion of'.  The word 'to cause' 
means 'that which produces an effect or consequen ce; an antecedent or antecedents followed by a 
certain phenomenon'; it 'indicates a condition or circ umstance or combination of conditions and 
circumstances that effectively and inev itably calls forth an issue, effect or result or that materially aids 
in that calling forth'."  In that same dispute, the Panel found that the ordinary meaning of "cause" 
requires "the showing of a link", but that it does not imply the need for there to be a sole or single cause.
1444  Likewise, we believe that the term "effecting" does not necessarily require that the 
measures at issue be the sole or single cause for the advance in rate of duty.  However, it must be 
shown that it goes beyond mere influence and there must be a demonstrable link between the 
measures at issue and the advance.   
7.1106  Turning to the term "advance", we note that it can mean "progress"; "a step forward"; 
"forward motion"; "a rise in amount, value or price".1445  When viewed in this context, we understand 
that "advance" as used in Article X:2 m eans "a rise in amount, value or price."   We also consider that 
both the French and Spanish versions of "advance"  in Article X:2, "relèvement" and "aumentar", 
respectively, support such an understanding. 1446  The French "relèvement" is defined as "action de 
relever, de hausser, d'augmenter"1447, while the Spanish "aumentar" is defined as "[a]crecentar, dar 
mayor extension, número o material a alguna cosa".1448  "[A]crecentar" refers back to "aumentar".1449 
Accordingly, Article X:2 of the GATT 1994 covers me asures of general application that "cause" an 
"increase" in a rate of duty.   
7.1107  Hence, we can conclude that "effecting an adva nce in a rate of duty" means that the CNEN 
amendments at issue are of a type that "bring about"  an "increase" in a rate of duty. The function of 
the language "effecting an advance in a rate of duty"  is to further describe the type of measures that 
are subject to the obligation in Article X:2. That is , it operates to define the class of measures to which 
the injunction against enforcement before official publication applies. As such, the focus under this 
aspect of Article X:2 is on the type of measure  under consideration. The question is whether the 
measures at issue are of the type that they are intend ed to have a certain effect, namely, an increase in 
a rate of duty.  The issue is not, at this point in the analysis, whethe r they have actually had that effect 
in practice.1450 In this particular case, therefore, the question at this stage of the analysis is not whether 
                                                      
1442 The Shorter Oxford Dictionary  (2002), p. 290. 
1443 effecting. (2009). In  Merriam-Webster Online Dictionary . Retrieved 7 December 2009, from 
http://www.merriam-webster.com/dictionary/effecting. 
1444 Panel Report on US – Lamb , para. 7.237-7.238. 
1445 The Shorter Oxford Dictionary  (2002), p. 31. 
1446 We recall that the French and Spanish texts of the GATT 1994 are equally  authentic (see the final 
clause of the WTO Agreement.  See also the Panel Report on China – Autos , para. 7.159, and the Panel Report 
on EC – Trademarks and Geographical Indications (United States) , para. 7.607). 
1447 Le nouveau Petit Robert (2000), p. 2150. 
1448 Diccionario de la lengua Española, Real Academia Española (2001), p. 162. 
1449 Diccionario de la lengua Española, Real Academia Española (2001), p. 23. 
1450 In a sense, the distinction could be thought of as one between the intention or purpose of the 
measure, and the actual application of th e measure in practice.  Another way of thinking about it is, if the result 
of enforcing the measure is to increase the rate of duty app lied to a particular product, then this would be strong 
evidence that the measure is of a type that "effects" an increase in the rate of duty.  WT/DS375/R 
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  the complainants have proved that the CNEN amendm ents have actually resulted in increased rates of 
duty in particular instances.  Rather, the question is  whether, in general term s, the CNEN amendments 
are measures of a type that can be said to be intended to  effect an advance in the rate of duty.        
7.1108  On their face, the CNEN amendments at issue indicate that certain STBCs are not classifiable 
as set top boxes with a communication function in duty-free CN code 8528 12 91. Instead, as a result 
of the CNEN amendments, those STBCs are classifiab le in other tariff lines which are dutiable. The 
applicable rates of duty, however, are not specified in the measures at issue, but rather are set out in 
the Common Customs Tariff of the European Comm unities, which imposes varying duty rates of 
between 13.9 per cent and 14 per cent with respect to th e relevant tariff lines. It seems clear to us that 
although the measures at issue them selves do not specify the rates of duty to be applied, the measures 
result in the exclusion of certain STBCs from dut y-free treatment. The CNEN amendments at issue 
necessarily lead to certain STBCs being classified in tariff lines that impose a duty rate in excess of 
zero while other STBCs are classifiable in duty-free tariff lines.  
7.1109  Under the CNEN amendments at issue, it became clear that STBCs with WLAN, ISDN or 
Ethernet connectivity, or with a recording and repr oducing device (such as, for example, a hard disk 
or a DVD drive) would be excluded from CN c ode 8528 12 91 (now 8528 71 13) which was – and 
still is – subject to a 0 per cent duty.  The BTIs demonstrate the lack of uniformity that existed before 
the CNEN amendments were voted on in the Custom s Code Committee.  Of the BTIs issued before 
that time, we find BTIS classifying STBCs with a hard disk or a DVD drive in CN code 8521 90 00 
(13.9 per cent duty); in 8528 12 20 (14 per cent duty)
1451 and in CN code 8528 12 91 (duty free).1452 
The different classification of similar STBCs by different EC member States' customs authorities 
shows that there was a lack of uniformity in the cl assification of set-top boxes with hard disk drives 
among the EC member States during 2005 and 2006. As Chinese Taipei points out, "in such a situation, it is up to the Commission to adopt measur es, either a CNEN or a classification regulation, 
in order to ensure the uniform application of the Common Customs Tariff."
 1453 
7.1110  We therefore believe that, through the CNEN amendments at issue, the Commission sent a 
clear signal to all customs authorities of EC member  States that STBCs with certain features were not 
eligible for classification in duty-free CN code 8528 12 91, leaving other dutiable codes as the only 
available classification options.  Thus, EC member States that had granted duty-free treatment before 
the vote on the measures in the Customs Code Committee were thereafter required not to classify in 
CN code 8528 12 91. In consequence, the CNEN  amendments at issue entailed a change in 
classification practices for some EC member States w ith the practical consequence that certain STBCs 
became dutiable. We therefore consider that, at least in some instances, as a result of the CNEN 
amendments at issue, some EC member States were required to change their classification practices in such a way that effected an advance in rate of dut y.  Hence, we conclude that the CNEN amendments 
at issue effect an advance in rate of duty an d as such fall within the measures contemplated by 
Article X:2.   
7.1111  While we do not consider that the complainants are required to submit proof of application on 
this point, we find support for our conclusions when comparing: (i) a French BTI issued in 2005 (before the vote in the Customs Code Committee), cl assifying an STB with a 160 GB hard disk in the 
                                                     
 
1451 See the following BTIs presented by the United States in exhibit US-28: BTIs DEM-3358-05-1 
(Germany, 11 August 2005); DEM/3971/06-1 (Germany, 13 June 2006); DEM/4638/06-1 (Germany, 24 July 
2006); and BED.T.245.774 (Belgium, 23 March 2006). 
1452 French BTI FR-E4-2005-003506 (2 August 2005).   
1453 Chinese Taipei's comments on the European Communities' responses to Panel question Nos. 163 
and 165. WT/DS375/R 
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  duty-free heading 8528 12 91 with (ii) a French BTI issued in July 2007 (after the vote in the Customs 
Code Committee) that classifies an STB with a 160 GB hard disk in dutiable heading 8521 90 00, 
expressly mentioning the 2007 draft CNEN as a classification justification.
1454.   
"Under an established and uniform practice"  
Arguments of the parties 
7.1112  The United States  submits that the phrase "under an established and uniform practice" does 
not relate to an "advance in a rate of duty".  Rath er, it modifies the phrase "other charge on imports".  
The United States submits that "[t]he current dispute would thus not implicate the phrase 'an 
established and uniform practice'".  The United States notes that in any event the measures at issue do 
in fact effect an advance in a rate of duty unde r an established and uniform practice since they are 
intended to ensure uniformity of administration of the EC-wide customs tariff.1455  "[E]liminating 
divergences in classification is an ostensible purpo se of CNENs, and after the CNEN was adopted, EC 
member States began to impose duties consistently  on imports of set top boxes based on the criteria 
enumerated in the CNEN."1456  According to the United States, th e evidence presented in this dispute 
demonstrates the existence of an "established and uniform practice" since "at least some member State 
customs authorities did not impose duties on the set top boxes at issue"1457 before the vote of the 
Customs Code Committee while "all BTI[s] issued af ter the vote provide for classification of set top 
boxes in the dutiable heading, consistent w ith the requirements contained in the CNEN"1458 and the 
customs authorities of the EC member States "relie d on the CNEN as a basis for their decisions to 
reclassify merchandise into a dutiable heading".1459   
7.1113  According to Chinese Taipei , an established and uniform practice "would require that a 
certain classification, charge or duty is applied cons istently and in the same manner to all imports of 
comparable goods".1460  However, like the United States, Chinese Taipei argues  that the phrase "under 
an established and uniform practice" does not relate to the advance "in rate of duty" but only to "or 
other charge on imports". The phrase "under an estab lished and uniform practice" appears next to 
"other charge on imports", such that the former info rms the latter.  Further, there is no comma or any 
reference that permits the interpreter to determ ine that the phrase "under an established and uniform 
practice" also informs "a rate of duty".  It argues that an advance "in a rate of duty" is "perfectly 
discernible, and traders may know what this duty is by simply looking into the tariff schedule".  Moreover, an advance in "rate of duty" is necess arily "under an established and uniform practice" 
because it is understood that the duty will be levied "every time a product is imported".  
Consequently, it is not necessary to demonstrate a r ecurrence.  Chinese Taipei submits that the term 
"other charge", in contrast, is a broad concept a nd may refer to a wide variety of charges, making it 
necessary that such other charge is levied under an  "established and uniform practice" in order to 
                                                     
 
1454Compare French BTI FR-E4-2005-003506 (2 August 2005), submitted by the United States in 
Exhibit US-120 with French BTI FR-E4-2007-002839R1 (F rance, 11 July 2007), submitted by Chinese Taipei 
in Exhibit TPKM-61. Exhibit TPKM-61 shows that BTI FR-E4-2007-002839R1 expressly mentions as classification justification a "Décision du Comité des douanes lors de la 420ème session des 18, 19 et 20 
avril 2007".   
1455 United States' responses to Panel question Nos. 162, 163 and 165. 
1456 United States' first written submission, para. 118 (Exhibit US-28). 
1457 United States' response to Panel question No. 160, para. 83. 
1458 United States' response to Panel question No. 165, para. 89. 
1459 United States' response to Panel question No. 160, para. 83. 
1460 Chinese Taipei's response to Panel question No. 162, para. 136.  WT/DS375/R 
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  ascertain the nature of that charge.
1461  Finally, it argues that, "from a grammatical viewpoint", "under 
an established and uniform practice" neither relates to "measure of general application" (the words 
"under an established and uniform practice" would have  to be placed after "any contracting party"), 
nor does it indicate the required level of enforcemen t, since it would then have been placed after 
"enforced".1462   
7.1114  The European Communities  argues that it is "evident" from reading Article X:2 of the 
GATT 1994 that the phrase "an established and uniform practice" cannot "be divorced" from the text "advance in a rate of duty".  According to th e European Communities, the measure cannot be 
considered as only qualifying and pertaining to  "other charge on imports".  The European 
Communities argues that the phrase "effecting an advance in a rate of duty or other charge on imports under an established and uniform practice" has to be read as a whole .  According to the European 
Communities, "the word 'other' in this phrase conf irms the understanding that both 'advance in a rate 
of duty' and 'charge on imports' are subcategories of  one larger category 'cha rges on imports under an 
established and uniform practice'".
1463  The European Communities adds that the statements of the 
United States and Chinese Taipei with regard to the elimination of divergences in classification 
through CNEN "naturally describe a situation that ca n only exist with respect to existing CNENs, i.e. 
CNENs duly adopted by the EC Commission".  The Eu ropean Communities considers that "[a]s such, 
these statements cannot be used in support of the complainants' arguments in the present case".1464  In 
addition, the European Communities argues that the existence of an "established and uniform 
practice" cannot be evidenced essentially by two in dividual instances of application (by France and 
the Czech Republic) of that measure out of 27 EC member States.1465  The European Communities 
submits that "[b]y asking the Panel to rely on the French and Czech BTIs as evidence of an 
enforcement of an allegedly existing Community-w ide measure, the United States and Chinese Taipei 
are effectively asking the Panel to replace the missing evidence by a mere assumption that the 
remaining EC Member States did the same and for the same alleged reasons".  The European 
Communities argues that the Panel cannot make such an "assumption".1466 
Consideration by the Panel 
7.1115  We now turn to consider whether the phrase "under an established and uniform practice" 
relates to an "advance in rate of duty".  If we find th is to be the case, we will consider the meaning of 
the phrase "under an established and uniform practice"  and subsequently, whether such requirement is 
met. 
7.1116  We agree with the European Communities that  the phrase "under an established and uniform 
practice" relates to an "advance in a rate of duty" .  In our view, the phrase "under an established and 
uniform practice" qualifies the term "advance", which relates to both "rate of duty", and "or other charge on imports". We are persuaded that the term  "or", as used in the phrase "advance in a rate of 
duty or other charge on imports" indicates that "rate of duty" and "other charge" are subcategories of 
the broader category of "charge on imports", wh ich encompasses both "dut[ies]" and "other 
charge[s]". This interrelation between "rate of dut y" and "other charge" – both subcategories of 
                                                     
 
1461 Chinese Taipei's comments on  the European Communities' response to Panel question No. 160, 
paras. 47-48. 
1462 Chinese Taipei's responses to Panel question Nos. 162-163. 
1463 European Communities' comments on United States' and Chinese Taipei's responses to Panel 
question No. 162. 
1464 European Communities' response to Panel question No. 163, para. 178. 
1465 European Communities' response to Panel question No. 163 (paras. 182-184) and No. 165 
(paras. 189-195). 
1466 European Communities' response to Panel question No. 165, para. 195. WT/DS375/R 
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  "charges on imports" - support the view that the phrase "under an established and uniform practice" 
must relate to both "rate of duty" and "other char ge" and that it should not be read to refer only to 
"other charge" only. Accordingly, we conclude that the "advance in a rate of duty" must be "under an 
established and uniform practice".   
7.1117  We now turn to the meaning of the terms in  the phrase "under an established and uniform 
practice".  In Japan – Alcoholic Beverages II , the Appellate Body interpreted the term "practice" in 
the context of the reference to "subsequent practice"  under Article 31.3(b) of the Vienna Convention.  
In particular, the Appellate Body stated that "pr actice" entails the following features: "a 'concordant, 
common and consistent' sequence of acts or pr onouncements which is sufficient to establish a 
discernible pattern...".
1467  I n  EC – Selected Customs Matters , the Panel considered that the same 
definition could be applied to explain the term "p ractice" in Article X:3(b) of the GATT 1994.  We 
see no reason to depart from this a pproach and give a different meaning to the term "practice" in 
Article X:2 of the GATT 1994.1468  Accordingly, we will apply the definition of "practice" provided 
by the Appellate Body in Japan – Alcoholic Beverages II . 
7.1118  When analysing the term "uniform" in the context of the obligation of "uniform" 
administration in Article X:3(a) of the GATT 1994, the Panel in European 
Communities - Selected Customs Matters , concluded that: 
"[T]he dictionary defines the term 'unifo rm' as 'of one unchanging form, character, or 
kind; that is or stays the same in different places or circumstances, or at different 
times'.  This definition, which has been  relied upon by both the United States and the 
European Communities and was supported by a number of third parties to this dispute, indicates, that the term 'uniform' requires, inter alia , geographic 
uniformity."
1469  
7.1119  In line with these considerations, we find that "uni form practice", in its context, refers to the 
similar application of a measure in the customs territory of a Member.  Accordingly, "uniform 
practice" means that the customs authorities of th e EC member States apply the measures at issue 
similarly and consistently throughout the custom s territory of the European Communities.   
7.1120  In addition, we note that Article X.2 requires that  such "practice" must also be "established".  
The ordinary meaning of "established" is "[i]nstitu te[d] or ordain[ed] permanently by enactment or 
agreement" or "set up on a permanent or secure basis".1470  Accordingly, "established" entails an 
element of duration.  Hence, under Article X:2, measur es must be of a type that effect an advance in a 
rate of duty under an established and uniform practice,  which means that the advance in a rate of duty 
must be applied ("practice") in the whole customs territory ("uniform") and its application should be 
on a secure basis ("established").  
7.1121  With the above understanding in mind, we w ill now analyse whether the CNEN amendments 
at issue effect an advance in a rate of duty "und er an established and uniform practice". We begin by 
referring once more1471 to the explanations of the European  Communities that the CNENs "constitute 
an important means of ensuring the uniform application of the Common Customs Tariff by the customs authorities of the Member States"; that they ar e "a valid aid to the interpretation of the tariff"; 
                                                     
 
1467 Appellate Body Report on Japan – Alcoholic Beverages II , DSR 1996:I, p. 106. 
1468 Panel Report on EC - Selected Customs Matters , fn. 898. 
1469 Panel Report on European Communities - Selected Customs Matters , para. 7.123. 
1470 The Shorter Oxford Dictionary  (2002), p. 860. 
1471 See para. 7.1028 above.  WT/DS375/R 
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  that the "CNEN reflect a Commission's view on how the CN should be interpreted and applied with 
respect to a certain product or a category of product at issue"; that they are "guidance"
1472; and that the 
EC member States "consult" the CNEN in assessing the classification at importation.1473  I n  
consequence, we understand that the essence of the CNEN is to inform  the customs authorities of the 
EC member States about the coverage of particul ar CN codes in order to ensure uniform tariff 
treatment throughout the customs territory of the European Communities. In the present dispute, the 
measures at issue inform the customs authorities of the EC member States about the coverage of CN 
code 8528 12 91 to ensure a Community-wide, uni form application of the Common Customs Tariff, 
regardless of the point of entry of the goods in the EC customs territory ("uniform").  In addition, the 
measures at issue are to be applied every time  a set top box with a WLAN-, ISDN- or Ethernet 
connection or with a recording or reproduction device  – such as, for example, a hard disk or a DVD 
drive – is imported into the customs territory of the European Communiti es ("established").   
7.1122  Finally, we address the European Communities'  argument that the two complainants have 
presented insufficient evidence to est ablish that the CNEN amendment effects an advance in rate of 
duty under an established and uniform practice.  Mo re particularly, the European Communities argues 
that the existence of an "established and unifor m practice" cannot be evidenced essentially by two 
individual instances of application (by France and th e Czech Republic) of that measure out of 27 EC 
member States.1474  We observe that the BTIs were submitted as evidence of enforcement prior to 
publication rather than as evidence of an estab lished and uniform practice.  The established and 
uniform practice arises out of the nature and purpo se of CNENs rather than any specific evidence of 
particular classification practice of EC member  States provided by the BTIs. Accordingly, and 
similarly to the approach we took when considerin g the relevance of the BTIs to determine whether 
the CNEN amendments effect and advance in  rate of duty, we reject this argument.1475   
7.1123  In this section, we first defined the meaning of  the terms "effecting an advance in a rate of 
duty".  Second, we considered whether the CNEN amen dments at issue effect an "advance in rate of 
duty".  We concluded in the affirmative.  Third,  we considered whether the requirement of an 
"established and uniform practice" applies in this di spute.  We concluded that it does.  Fourth, we 
defined the meaning of "an established and unifo rm practice" and concluded that the CNEN 
amendments at issue effect an advance in rate of  duty "under an established and uniform practice".  
We now consider whether the CNEN amendments were "enforced" before they were "officially 
published".   
(iv) Whether the draft CNEN were enfo rced before official publication 
Arguments of the parties  
7.1124  The United States  argues that the European Communities imposed duties on imports of 
STBCs using the reasoning contained in the measures at issue before the CNEN was officially 
published in the EU Official Journal on 7 May 2008.1476  The United States claims that the BTIs 
before the Panel "support the conclusion" that EC  member States relied on the CNEN in their 
classification decisions before the official publication of the CNEN amendment.1477  M o r e  
                                                      
1472 See para. 7.1027 above. 
1473 European Communities' response to Panel question No. 23, para. 103. 
1474 See para. 7.1114 above. 
1475 See para. 7.1107 above. 
1476 United States' first written submission, para. 117; United States' second written submission, 
para. 122. 
1477 United States' second written submission, para. 122. WT/DS375/R 
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  particularly, the United States points out that "fiv e BTIs submitted as evidence to the Panel were 
issued between the vote and official publication clas sifying STBCs in the dutiable heading, and that 
four of the five BTI refer to the CNEN as a "justification" for the classification".
1478  T h e  U n i t e d  
States submits that "it is significant that the EC  has offered no BTI issued by any member State 
reaching the opposite conclusion."1479  Chinese Taipei  argues that "[b]efore the official publication in 
May 2008 took place, several EC member States starte d to apply the adopted CNEN".  It points out 
that the enforcement of the CNEN amendments by the EC member States prior to their official 
publication is consistent with the fact that the m easures at issue were made effective upon their vote 
by the Customs Code Committee.1480  Chinese Taipei submits that th e evidence submitted by the 
United States and itself shows that customs aut horities applied the CNEN amendment before the 
amendment to the CNEN was officially published.1481  Chinese Taipei points out that the measures at 
issue were indeed "enforced" since the EC customs authorities took " actual  decisions in specific cases 
compelling the observance with the measure, e.g., le vying higher duties, withdrawing contrary BTIs 
or issuing BTIs consistent with th e criteria laid down in the measure".1482  
7.1125  The United States submitted 15 BTIs, i.e. BTIs (1) to (15) below.1483  Chinese Taipei 
submitted six BTIs, five of which were also presented by  the United States, i.e. numbers (5); (6); (7); 
(14) and (15).1484  Chinese Taipei presented an additional BTI (16).  These 16 BTIs are:  
1. DEM-3358-05-1 (Germany, 11 August 2005) – 8521 90 00; [14 per cent duty] 2. BED.T.245.774 (Belgium, 23 March 2006) – 8528 12 20; [14 per cent duty] 
3. DEM/3971/06-1 (Germany, 13 June 2006) – 8521 90 00; [13.9 per cent duty]  
4. DEM/4638/06-1 (Germany, 24 July 2006) – 8521 90 00; [13.9 per cent duty]  5. FR-E4-2007-002839R1 (France, 11 July 2007) – 8521 90 00; [13.9 per cent duty]  6. FR-E4-2007-001251 (France, 11 July 2007) – 8521 90 00; [13.9 per cent duty]  7. FR-E4-2007-00261 (France, 11 July 2007) – 8521 90 00; [13.9 per cent duty]  
8. BED.T. 248.255 (Belgium, 23 January 2008) – 8521 90 00; [13.9 per cent duty] 
9. CZ05-0187-2008 (Czech Repub lic, 23 April 2008) – 8521 90 00; [13.9 per cent duty] 
10. NLRTD-2008-000713 (Netherlands, 20 May 2008) – 8528 71 90; [14 per cent duty] 
11. NLRTD-2008-000714 (Netherlands, 20 May 2 008) – 8528 71 90; [14 per cent duty]  
                                                     
 
1478 United States' second written subm ission, fn. 269; United Stat es' second written submission, 
para. 124. 
1479 United States' response to Panel question No. 166, para. 90. 
1480 Chinese Taipei's first written submission, paras. 470-473.  The complainants argue in their 
Article X:1 claim that the BTIs prove that the draft CNEN were "made eff ective" upon their vot e in the Customs 
Code Committee, see paragraph 7.1064 above. 
1481 Chinese Taipei's second written submission, paras. 283-284. 
1482 Chinese Taipei's response to Panel questio n No. 154, paras. 114-115 (emphasis added). 
1483 The BTIs 1-13 were presented as Exhibit US-28 and the BTIs 14-15 were presented as Exhibit 
US-120. 
1484 Chinese Taipei's first written submission, para. 472, fn. 229 (Exhibits TPKM-60 and 61).  WT/DS375/R 
 WT/DS376/R 
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  12. BGBG/2008/000072 (Bulgaria, 26 May 2008) – 8528 71 90; [14 per cent duty] 
13. CZ05-0478-2008 (Czech Repub lic, 10 June 2008) – 8528 71 90; [14 per cent duty] 
14. FR-E4-2005-003506 (France, 2 August 2005) - 8528 12 91; [0 per cent duty] 
15. GB 114068108 (United Kingdom, 8 April 2005) – 8528 12 91; [0 per cent duty] 
16. BED.T.235.330 (Belgium, 4 March 2004) – 8528 12 91; [0 per cent duty]. 
7.1126  The United States  and Chinese Taipei argue that these BTIs establish that at least some EC 
member States enforced the CNEN amendments at issue before their official publication on 
7 May 2008. More particularly, they point out that some of those BTIs issued before the official 
publication of the CNEN amendments in May 2008 e xpressly refer to the measures at issue as part of 
the classification justification to classify certain set  top box outside the duty-free code. This is the case 
for BTIs 5; 6; 7 and 9.
1485 In addition, the two complainants ar gue that the BTIs preceding the vote of 
the CNEN amendments at issue in the Custom s Code Committee demonstrate that there was no 
uniformity when classifying STBCs with a hard disk .  Germany and Belgium, for example, classified 
STBCs with a hard disk in a different dutiabl e tariff line, while France and the United Kingdom 
classified such STBCs in a duty-free tariff line.1486 
7.1127  Similarly to its arguments regarding "made effective" under Article X:1 of the GATT 1994, 
the European Communities argues that for a measure to be "enforced", it must first have been 
formally adopted by the Commission and published in the EU Official Journal.1487  It argues that the 
measures at issue are merely "prepa ratory acts" that were formally adopted only in April 2008, a few 
days before the official publication of the CNEN amendment in the Official Journal on 7 May 2008.  
The European Communities contests the relevanc e of these BTIs in establishing the alleged 
Article X:2 violation. The European Communitie s submits that it cannot prevent measures by 
individual EC member States and questions whether or not the complainants also target the individual 
measures (BTIs) by the EC member States.1488  In its view, the BTIs submitted by the complainants 
further confirm that the measures are measures taken by individual EC member States.  Finally, the 
European Communities contends that the specific circumstances of the case might, at most, be 
considered as evidence of the way in which the Eu ropean Communities "administered" in a particular 
instance measures of the kind described in Article X:1 in the sense of Article X:3 of the GATT 1994, 
but submits that neither the United States nor Chinese Taipei has brought such a claim.1489 
Consideration by the Panel  
7.1128  The final question before the Panel is to dete rmine whether the CNEN amendments at issue – 
which it already considers to be of general application and effecting an  advance in a rate of duty under 
an established and uniform practice – were enforced before  their official publication.  It is undisputed 
that the publication of the CNEN amendments in th e EU Official Journal c onstitutes such official 
publication.  Accordingly, we will consider whether the CNEN amendments were enforced before  
their official publication in the EU Official Journal on 7 May 2008.   
                                                      
1485 United States' second written submission, fn. 269. 
1486 Compare BTIs 1, 3 and 4 classifying set top boxes with a hard disk in CN code 8521 90 00, with 
BTI 2 classifying a set top box in 8528 12 20 and BTIs 14-15 classifying a set top box in 8528 12 91. 
1487 See para. 7.1041 above. 
1488 European Communities' second written submission, para. 97. 
1489 European Communities' first written submission, paras. 321-327; European Communities' second 
oral statement, paras. 95-96. WT/DS375/R 
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  7.1129  One of the meanings of "enforced" is "carr[ied] out effectively".
1490  In our view, proof that a 
measure has been applied would establish that it was enforced.  This is supported by both the Spanish 
and French versions of Article X:2.  The Spanis h version expressly mentions "aplicada", which means 
"applied".  The French version mentions "mise en vigueur".  "En vigueur" means "en application" so 
that "mise en vigueur" means "put into application".1491  This contrasts with "made effective" under 
Article X:1 which does not necessarily require an actual  application of the laws, regulations, judicial 
decisions and administrative rulings  of general application.   
7.1130  Accordingly, we consider whether the Eur opean Communities indeed applied the CNEN 
amendments at issue before 7 May 2008.  We will  assess each CNEN amen dment in turn. As the 
Appellate Body explained in US – Wool Shirts and Blouses , the general rule of the burden of proof is 
that the burden rests upon the party, whether compla ining or defending, who asserts the affirmative of 
a particular claim or defence.1492  Hence, it is for the two compla inants to make their case.  The 
complainants submitted BTIs with a view to proving this aspect of their claims. 
7.1131  At the outset, we wish to point out that we see no basis in Article X:2 to require any particular 
threshold in terms of the number of instances of enfo rcement that must be demonstrated in order to 
establish that a relevant measure has been enforced prior to its official publication within the meaning 
of Article X:2.  In our view, even a single instan ce of enforcement of a measure before its official 
publication could amount to a violation of Article X: 2, depending on the facts of the case.  To find 
otherwise, we believe, would unde rmine the due process objective embodied in Article X:2.  We also 
recall our consideration that the "uniform and established practice" relates to the "advance".1493  I t  
does not qualify a required level of enforcement.   
7.1132  We start with the October 2006 CNEN amendm ent.  This is the CNEN amendment that 
excludes from duty-free CN code 8528 12 91 tho se STBCs with WLAN-, ISDN- or Ethernet 
connectivity.  In reviewing the submitted BTIs and in considering whether they establish that this 
CNEN amendment was enforced before its official publication on 7 May 2008, we noted that they all 
concern STBCs with a hard disk or a DVD drive.  None relates to a classification decision on STBCs 
with WLAN-, ISDN- or Ethernet- connectivity.  As  such, we have no evidence before us establishing 
that the October 2006 CNEN amendment was enforced  by the Customs authorities of the EC member 
States before 7 May 2008.  Accordi ngly, we conclude that the Unit ed States and Chinese Taipei have 
failed to prove that the October 2006 CNEN amendm ent was enforced before its official publication 
in the EU Official Journal as CNEN 2008/C 112/03 on 7 May 2008.  Thus we conclude that the two 
complainants have not made out their claim that the October 2006 CNEN amen dment is inconsistent 
with the European Communities' obligations under X:2 of the GATT 1994.   
7.1133  We now turn to the April 2007 CNEN amendmen t.  This is the CNEN amendment that 
excludes from duty-free CN code 8528 12 91 those STBCs with a recording or reproducing device 
such as, for example, a hard disk or a DVD driv e. We have already established that all the BTIs 
submitted by the two complainants relate to STBCs  with a hard disk or a DVD-drive. We note, 
however, that not all BTIs are relevant to this case. We can discard BTIs 10, 11, 12 and 13 since they 
were all issued after the date of official publication in the EU Official Journal, i.e. after 7 May 2008.  
Accordingly, they cannot serve to establish that the CNEN amendment in question was enforced 
before 7 May 2008.  We can also discard BTIs 1, 2, 3, 4, 14, 15 and 16, because they were all issued 
before the CNEN amendment was voted on in the Cu stoms Code Committee, i.e. before April 2007.  
                                                      
1490 Webster's New Encyclopaedia Dictionary (1993), p. 332. 
1491 Le nouveau Petit Robert (2000), p. 2676. 
1492 Appellate Body Report on US – Wool Shirts and Blouses , DSR 1997:I, page 335. 
1493 See para. 7.1116 above.  WT/DS375/R 
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  Accordingly, these BTIs are equally irrelevant in  establishing that the CNEN amendment in question 
was enforced prior to official publication.  This l eaves us with BTIs 5, 6, 7, 8 and 9 which could be 
relevant since they were all issued after the vote in the Customs Code Committee but before the 
official publication of the CNEN amendment in the EU Official Journal.  We note that BTIs 5, 6, 7, 
and 9 seem particularly relevant since they expressly refer to this CNEN amendment as a "classification justification".  More particularly, the te xt of French BTIs 5, 6, and 7 expressly refers to 
the topic "classification justification" to the Customs Code Committee during the 420
th meeting held 
on 18, 19 and 20 April 2007.  And,  Czech BTI 9 mentions under "classification justification" that 
"[t]he product cannot be included in TARIC code 8528 71 13 00 because it is equipped with a hard 
disk".1494  In other words, the BTI excludes the set top box with a hard disk from duty-free heading 
8528 71 13 because of the presence of a hard disk to  classify it in dutiable heading 8521 90 00.  This 
is exactly what the CNEN amendment requires.  Fina lly, there is BTI 8.  BTI 8 shows that a set top 
box with a hard disk was classified in a dutiable h eading. However, we find no explicit reference to 
the CNEN amendment in BTI 8; therefore, although in line with the measure at issue, we will not 
draw any conclusions with respect to BTI 8.   
7.1134  We find that the explicit reference to this CN EN amendment in BTIs 5, 6, 7 and 9 clearly 
demonstrates that the customs authorities were well aw are of the measure at issue.  In addition, the 
fact that the measure at issue was explicitly menti oned as a "classification justification" demonstrates 
that at least those EC member States issui ng those BTIs applied this measure at issue before  the 
official publication of the amendment to the CNEN on 7 May 2008. As a consequence, we find that 
those four BTIs illustrate that the 2007 CNEN am endment at issue was enforced by EC member 
States to determine the tariff classification prior to the official publication of the CNEN amendment in 
the EU Official Journal. Consequently, we find that the United States and Chinese Taipei have 
established that the April 2007 CNEN amendment was enforced by at least some EC member States 
before its official publication in the EU Official Journal as CNEN 2008/C 112/03 on 7 May 2008.  
The United States and Chinese Taipei have therefor e established that the European Communities has 
acted inconsistently with Article X:2 in respect of the April 2007 CNEN amendment. 
7.1135  In sum, we have determined that the United States and Chinese Taipei did not establish that 
the European Communities enforced the Octobe r 2006 CNEN amendment before its official 
publication as CNEN 2008/C 112/03 in the EU Official  Journal on 7 May 2008.  On the other hand, 
we have found that the United States and Chin ese Taipei have provided sufficient evidence to 
establish that the April 2007 CNEN amendment was enforced before its official publication as 
CNEN 2008/C 112/03 in the EU Official Journal on 7 May 2008, in violation of Article X:2 of the 
GATT 1994.  Accordingly, we conclude that the Eu ropean Communities has acted inconsistently with 
Article X:2 of the GATT 1994 with respect  to the April 2007 CNEN amendment. 
G. MULTIFUNCTION DIGITAL MACHINES (MFM S) 
7.1136  In this section of the Reports the Panel will consider the complainants ' claims that certain 
EC measures are inconsistent with Articles II:1( a) and (b) of the GATT 1994 because they result in 
less favourable tariff treatment to imports of cer tain multifunction digital machines ("MFMs") than 
that provided for these products under the EC Schedule  and because the tariff treatment provided is in 
excess of that provided for in the EC Schedule.  In the joint Pa nel request, the complainants explain 
that MFMs are machines which perform two or mo re of the functions of printing, copying, or 
facsimile transmission, capable of connecting to  an automatic data-processing machine or to a 
                                                      
1494 See Exhibit US- 28: the Original French BTIs mention "Décision du Comité des douanes lors de la 
420ème session des 18, 19 et 20 avril 2007".  The complainants provided a translation of the Czech BTI that 
was not contested by the European Communities. WT/DS375/R 
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Page 336 
  
  network (including devices commercially known as M FPs (multifunctional printers), other "input or 
output units" of "automatic data-processing m achines" (ADP), and facsimile machines).
1495 
7.1137  Throughout the course of the proceedings the co mplainants have divided MFMs into two sub-
categories: i) ADP MFMs, which are capable of c onnecting to an ADP machine (e.g., a computer) or 
computer network; and ii) Non-ADP MFMs, which are not connectable to an ADP machine, but connect instead to a telephone line, such that they necessarily have a facsimile transmission 
function.
1496 In considering the substance of the compla inants' claims with respect to MFMs in 
subsections VII.G.3 and VII.G.4 below, we will like wise divide them into these two subcategories of 
ADP MFMs and non-ADP MFMs.  
7.1138  The complainants  submit that when the ITA was conc luded, MFMs entering the European 
Communities were classified in the duty-free HS1996 subheadings 8471 60 or 8517 21.  They claim, however, that over a period of time beginning in 1999, the European Communities started to adopt measures based on "arbitrary classification criteria", wh ich in turn resulted in the reclassification of 
MFMs under dutiable  headings (i.e., as "photocopying appara tus" under HS1996 subheading 9009 12, 
which carries a 6 per cent duty).  The complainants cl aim that this alleged reclassification "eroded", or 
"emptied", the ITA-based, duty-free concessions in the EC Schedule for these products, ultimately 
leading to the imposition of 6 per cent duties on most MFMs imported into the European Communities.
1497  It is the levying of this 6 per cent ad valorem duty to products which they believe 
should be afforded duty-free treatment that is the focus of the compla inant's claims.    
7.1139  The European Communities  argues, however, that the products at issue do not fall 
exclusively within the tariff headings that embody the European Communities' duty-free concessions. 
Rather, they could also, prima facie, be properly classified as falling within a separate tariff heading 
that embodies a dutiable concession, which heading is currently being applied by EC customs 
authorities.  According to the European Communitie s, in such a situation where a product may prima 
facie  fall within more than one tariff heading, proper application of the rules of the HS will result in 
some of the products properly falling within the dutiable concession.  Therefore, the European 
Communities submits that the dutiable tariff treatm ent of certain MFMs resulting from the measures 
at issue simply reflects a proper interpretation of  the scope of these concomitantly applicable duty-
free and dutiable EC concessions rather than any in consistency with Article II.  Consequently, the 
European Communities asks the Panel to  reject the complainants' claims. 
7.1140  The task before the Panel, therefore, is to determine: (a) the scope of the duty-free tariff 
concession in the EC Schedule; (b) whether the produc ts at issue fall within the scope of the duty-free 
tariff concession; (c) whether the challenged me asures result in the imposition of duties on the 
products at issue in excess of those provided for in  the EC Schedule; and (d) whether the measures at 
issue result in less favourable treatment of the pr oducts at issue than that provided for in the 
EC Schedule. 
                                                      
1495 Joint Panel Request, WT/DS735/8, 376/8, 377/6, fn. 15. 
1496 We use these terms with a view to aid our analysis.  Our use of these terms is without prejudice to 
the positions of the parties, as well as our own, on any further or specific charac teristics these products may 
contain, as discussed and considered below. 
1497 United States' first written submission, paras. 1 and 75; Japan's first written submission, paras. 52-
56; Chinese Taipei's first written submission, paras. 493-495. The United States claims that evidence shows such "reclassification" by EC cust oms authorities from duty-free to dutia ble headings (United States' second 
written submission, para. 103 and its fn. 219; comparing some BTIs that the United States claims classified 
MFMs in duty-free subheadings prior to  and during  ITA negotiations  (Exhibit US-106) with various other BTIs 
that the United States claims classi fied MFMs in dutiable subheadings after  the measures at issue came into 
place (Exhibit US-62)).  WT/DS375/R 
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  7.1141  We note that the approach we have outlined re quires the Panel first to identify the measures 
and the products at issue.  This is particularly important in this case as the European Communities has 
raised several points calling into question whether certain measures are within the Panel's terms of 
reference.  Therefore, before proceeding to the subs tance of the complainants' claims, we first turn to 
whether particular aspects of those claims are properly before the Panel. 
1. Preliminary issues 
7.1142  During these proceedings, the Eu ropean Communities raised va rious issues related to the 
jurisdiction of this Panel with respect to the MF M claims.  First, the European Communities argued 
that several measures identified by the complainants ' in their joint Panel request are effectively no 
longer applicable in practice and are therefore irreleva nt to the Panel's analysis.  Second, the European 
Communities argued that one of the measures challe nged was not legally bindi ng under EC law.  
Third, the European Communities has alleged that the complainants have added during the course of 
the proceedings new measures and new claims that were not included in the joint Panel request and 
are thus outside the Panel's terms of reference.  
7.1143  We will address each of these issues in turn.  We note that the Appellate Body has explained 
that, taken together, the identification of the specific measures at issue and the legal basis of the complaint comprise the "matter referred to the DS B", which forms the basis for a panel's terms of 
reference under Article 7.1 DSU.
1498   
7.1144  One of the essential purposes of the terms of refe rence is to establish the jurisdiction of the 
panel by defining the precise claims at issue in the dispute.1499  The Appellate Body has also observed 
that the vesting of jurisdiction in a panel is  a fundamental prerequisite for lawful panel 
proceedings.1500  Therefore, we first must address these i ssues before we can proceed to address the 
substance of the complainants' claims.   
7.1145  As the joint Panel request serves as the basis for the terms of reference of this Panel,  we will 
start our analysis by first setting forth the relevant text of the joint Panel request. 
(a) The measures at issue identified in the joint Panel request: 
7.1146  In their joint Panel request, the complainants  identified the following as the EC measures at 
issue in this dispute with respect to their clai ms of tariff treatment of MFMs by the European 
Communities that is inconsistent with Ar ticles II:1(a) and II:1(b) of the GATT 1994: 
- Commission Regulation (EC) No. 517/19991501; 
 
- Report of the Conclusions of the 360th meeting of the Customs Code Committee (the 
"2005 Statement")1502; 
 - Commission Regulation (EC) No. 400/2006
1503; 
 
                                                      
1498 Appellate Body Report on Guatemala – Cement I , paras. 69-76. 
1499 Appellate Body Report on Brazil – Desiccated Coconut , DSR 1997:I, p. 186. 
1500 Appellate Body Report on Mexico – Corn Syrup (Article 21.5 – US) , para. 36. 
1501 Exhibits US-59; JPN-4; TPKM-35. 
1502 Exhibits US-60; JPN-6; TPKM-32. 
1503 Exhibits US-61; JPN-5; TPKM-36. WT/DS375/R 
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  - Council Regulation (EEC) No. 2658 /87, as amended (the "CN2007")
1504; and 
 - Any amendments or extensions and any related or implementing measures. 
 
7.1147  In particular the joint Panel request states th at "Customs authorities of EC member States 
impose duties on MFMs" through various measures listed therein. Among these measures the  "Council Regulation (EEC) No. 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and 
on the Common Customs Tariff, including all annex es thereto, as amended (including amendments 
adopted pursuant to Commission Regulation No. 1214/2007 of 20 September 2007)" is indicated.
1505 
7.1148  Next, the joint Panel request explains that the modifications to the EC Schedule that were 
made, "to reflect the commitments made under the ITA" included "the concessions for '[f]acsimile 
machines', as contained in HS 8517 21 00 and 'input  or output units' of 'automatic data-processing 
machines', as in HS category 8471 60.  The bound duty rate for both products is zero."  
7.1149  Additionally, the joint Panel request alleg es that the Commission Regulation No. 517/1999 
and 400/2006 subject "certain MFMs" to "a duty rate of 6 per cent" by classifying them as "indirect 
process electrostatic photocopiers" and "photocopyi ng apparatus", respectively.  The joint Panel 
request also asserts that  the 2005 Statement provides for "multifunctional devices" having a certain copy speed to be classified in the 6 per cent dutiable HS heading 90.09.  
 
7.1150  The joint Panel request also claims that  Council Regulation No. 2658/87, as amended 
(including the 2006 amendment which promulgated th e CN2007), with the creation of three specific 
CN  subcategories,  is inconsistent with the Eu ropean Communities' concessions.  In particular, the 
joint Panel request alleges that:  
"On 31 October 2006, the EC amended C ouncil Regulation (EEC) No. 2658/87 of 23 
July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, creating CN 8443 31 10 ('[m]achines performing the functions of copying and facsimile transmission, whether or not with a printing function, with a copying speed 
not exceeding 12 monochrome pages per minute'), CN 8443 31 91 ('[o]ther; 
[m]achines performing a copying function by scanning the original and printing the copies by means of an electrostatic engine')  and CN 8443 31 99 ('[o]ther').  By virtue 
of these subcategories, MFMs with copying speeds of more than 12 monochrome pages per minute and with an electrostatic engine are classified under CN 8443 31 91.  The duty rate for CN 8443 31 91 is 6 per cent."
1506 
7.1151  Finally, the joint Panel request avers that the co mplainants are also raising claims against any 
amendments or extensions of the specifically listed measures as well as any related or implementing measures thereof.   
                                                     
 
1504 As amended, inter alia , by Commission Regulation No. 1549/2006, which introduced the CN2007 
(Exhibits JPN-2;TPKM-34).  For a detailed explanation of the CN, see Section VII.B.4.(a), above. 
1505 Joint Panel Request, WT/DS375/8, 376/8, 377/6, page 5 and fn. 16 (original footnote omitted). 
1506 Joint Panel Request, WT/DS375/8, 376/8, 377/6, page 6 (original footnote omitted).  WT/DS375/R 
 WT/DS376/R 
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  (b) Are Commission Regulation Nos. 517/1999 and 400/2006 and the 2005 Statement outside the 
Panel's jurisdiction because they are no longer effectively applicable? 
(i) Arguments of the parties 
7.1152  The European Communities  argues that Commission Regulation Nos. 517/1999 and 
400/2006 are both based on CN code 9009 12 00, wh ich was permanently removed as a consequence 
of the implementation by the European Communitie s of the HS2007, as reflected in the CN2007 (and 
subsequent versions therein).  It further notes th at in the HS2007, heading 9009 was replaced by three 
entirely new HS subheadings, namely subheadings 8443 31, 8443 32 and 8443 39.  The European 
Communities therefore claims that when the CN2007 entered into force on 1 January 2007, 
Commission Regulation Nos. 517/1999 and 400/20 06, although still "formally in force", became 
"effectively inapplicable in practice" from that date  and remain so as of the date of the establishment 
of this Panel.  The European Communities subm its that, due to the difference in language and 
structure between the old CN [HS] code 9009 and the new CN [HS] code 8443, it is very difficult, and 
even "pointless", to apply these two classification re gulations today by "analogy".  The European 
Communities also states that, as a consequence of these changes, it is in the process of formally 
repealing Commission Regulation Nos. 517/1999 and 400/2006, as well as all other Regulations 
providing for the classification of certain pr oducts under HS heading 9009.  The European 
Communities further states that it intends to do so by the beginning of October 2009, at the latest.
1507   
7.1153  Finally, with respect to the 2005 Statement, the European Communiti es argues that the 2005 
Statement has in any case been superseded by the advent of the 12 ppm copy speed criterion under the 
CN2007 and is therefore not a measure before the Panel since it is no longer applicable.1508   
7.1154  The United States  and Japan  (with respect to Commission Regulation Nos. 517/1999 and 
400/2006 as well as the 2005 Statement) and Chinese Taipei  (only with respect to Commission 
Regulation Nos. 517/1999 and 400/2006)1509 respond that these measures are still valid and in effect, 
and still form part of the EC legal system, at l east so long as they have not been expressly and 
formally withdrawn, annul led, revoked or amended.1510   
                                                      
1507 European Communities' response to Panel question No. 110, para. 20. 
1508 European Communities' second written submission, para. 160. 
1509 With respect to the 2005 Statement, Chinese Taipei considers that it "has effectively been 
superseded" by the CN2007 (and subsequent versions therein) due to incorporation of the 12 ppm copy speed criterion in that CN. (Chinese Taipei's  response to Panel question No. 24). 
1510 Complainants' responses to Panel question Nos. 18 and 24;  United States' second written 
submission, paras. 5 and 103;  Un ited States' second opening statement,  para. 7;  Japan's second written 
submission, para. 34;  Chinese Taipei's second written submission, paras. 44, 46-51, 56 and 291-292. The 
United States further notes that the European Communities itself "concedes" that Commission Regulation Nos. 
517/1999 and 400/2006  remain "formally in force" and that the 2005  Statement has "some interpretative value" (United States' second written submi ssion, para. 105 (citing the Europ ean Communities' response to Panel 
question No. 24)). Chinese Taipei further submits that under EC law, there is no "implied annulment" or 
"annulment by analogy" (Chinese Taipei's responses to Panel question Nos. 18 and 24 and second written submission, para. 48).  Chinese Taipei refers to the European Court of Justice in Cabletron  (C-463/98) as an 
example of an express annulment of classification regulations (Chinese  Taipei's second written submission, 
para. 48, fn. 35).  Chinese Taipei also refers to Commission Regulation No. 705/2005 (Exhibits TPKM-83; EC-102) as an example of an express amendment  and repealing  of classification regulations due to changes in the 
CN that resulted inter alia  in the elimination of certain CN codes (Chinese Taipei's second written submission, 
paras. 49-50).  Japan, in the alternative, argues that, if these three measures are indeed  "no longer in effect as a 
legal matter", then they at least se rve to "help explain the cu rrent version of the measure at issue". (Japan's 
response to Panel question No. 18). WT/DS375/R 
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  7.1155  The complainants  also submit that evidence, in the form of a BTI from France, shows 
contrary to the European Communities' argu ment that these measures became "effectively 
inapplicable" with the advent of the new CN2007, th at in fact EC customs authorities relied on these 
measures even after the CN2007 had entered into force.
1511  More generally, Japan and Chinese Taipei 
further claim that EC national authorities today can still make their tariff classifications based on such 
measures by simply using a "table of equivalence"  or "conversion table" be tween the old CN and the 
current one, which allows these authorities to concl ude, for example, that an apparatus previously 
classified under the old CN code 9009 12 00 would now fall under the new CN code 8443.1512 
7.1156  The European Communities  responds that the "conversion table", mentioned by Japan and 
Chinese Taipei, is not legally binding and does not amend the terms of earlier classification 
regulations based on a different nomenclature.  Furthe rmore, as this table "has not been adopted by 
the Commission, [it] therefore, reflects exclusiv ely the views of the Commission services responsible 
for customs matters".1513  As to the French BTI that was cited by the complainants as evidence that the 
measures at issue are still applicable today, th e European Communities explains that the reference 
made in this BTI to Commission Regulation No. 517/1999  served "merely as additional authority supporting the interpretati on" taken by the French customs authorities.
1514 
(ii) Consideration by the Panel 
7.1157  The Panel  is faced with two questions.  First, what is the factual status of Commission 
Regulation Nos. 517/1999 and 400/2006 and the 2005 St atement?  Second, if the implementation of 
the CN2007 did indeed supersede and render inappl icable Commission Regulation Nos. 517/1999 and 
400/2006 as well as the 2005  Statement, does this mean they can no longer be considered measures at issue with respect to the MFM claims?  
7.1158  We understand the European Communities' argumen t in essence to be the following:   The 
adoption of the CN2007 resulted in these three me asures becoming "effectively inapplicable in 
practice"; therefore, the only measure at issue in this dispute is the current  CN.  We first note that 
there is no disagreement among the parties to this di spute that, at the time the Panel was established, 
Commission Regulation Nos. 517/199 9 and 400/2006 were, as the Eu ropean Communities itself puts 
                                                     
 
1511 More specifically, the complainants make refe rence to BTI FR-E4-2007-002262-R (issued by the 
French customs on 13 January 2007), which classified an ADP MFM in CN2007 code 8443 31 91 and cited Commission Regulation No. 517/1999  as one of the justifications for this decision (Exhibits US-62; 
TPKM-84).  See United States' responses to Panel qu estion Nos. 18 and 24;  United States' second written 
submission, footnote 220 to para. 105;  United States' se cond oral statement, para. 7;  Japan's second written 
submission, para. 34 (referring to the United States' response to Panel question No. 18);  Chinese Taipei's 
second written submission, para. 53, fn. 39. 
1512 Japan's and Chinese Taipei's responses to Panel question No. 24;  Chinese Taipei's second written 
submission, paras. 52 and 53. 
1513 European Communities' second written submission, para. 156 (commenting on the complainants' 
responses to Panel question No. 24).  In support of this view, the European Communities points to the language of the following disclaimer, contained in a document called "Conversion Tables for CN 2006-2007 and 
CN 2007-2006" (Exhibit EC-93): 
 "Disclaimer:  these conversion tables are provided only for information and have no legal 
value.  Only the Combined Nomenclature is binding ."  
 
1514 European Communities' second written submission, para. 158 (commenting on the complainants' 
responses to Panel question No. 24).  WT/DS375/R 
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  it, still "formally in force" within the EC legal system.
1515  Additionally, although the European 
Communities has told the Panel that the measures w ould be repealed by October 2009, the European 
Communities submitted no information to the Panel conf irming whether this had actually occurred.     
7.1159  We note that, even if the formal repeal of  the measures did occur after the Panel was 
established and its terms of reference had been set, it would still be within our discretion to decide 
how to take into account subsequent modifica tions or a repeal of the measures at issue.1516  In 
deciding how to exercise that discretion, we take note that some past panels have proceeded to rule on 
repealed or expired measures if those measure s still had lingering effects after the repeal1517 or if they 
thought such a ruling would aid in securing a positive resolution to the dispute as required by 
Article 3.7 of the DSU.1518  Other past panels have also deci ded to make rulings on repealed or 
expired measures in cases where the respondent Member  had not conceded the WTO inconsistency of 
the repealed measure and such measure could be easily re-imposed.1519 
7.1160  We discern no disagreement among the parties th at the complainants specifically identified 
Commission Regulation Nos. 517/1999 and 400/2006 and the 2005 Statement in the joint Panel 
request.  We also note that the complainants argue that the measures continue to have lingering effect 
as evidenced by the reliance of Fr ench customs authorities on the re gulations and the use by other 
national customs authorities within the European Communities of a "conversion table" relating back 
to the pre-existing tariff headings.  Furthermore, as will be discussed further below, in relation to the 
2005 Statement, even if it were true that these documents are "effectively inapplicable" and have no 
particular legal weight within the European  Communities' legal structure that does not ipso facto 
mean that they are not susceptible to challenge in WTO dispute settlement.1520  Additionally, the 
complainants continue to request a finding from th e Panel on these measures and are of the belief that 
a finding from the Panel on the consistency of th ese measures with the EC's obligations under the 
GATT 1994 would aid in securing a positive resolution of  this dispute.  Finally, the European 
Communities has not argued that the intended repeal of these measures was due to their inconsistency 
with the European Communities' WTO obligations nor has the Eur opean Communities conceded that 
they are indeed WTO-inconsistent.  For all the foregoing reasons, the Panel will proceed to make 
findings with respect to the WTO consistency of these measures.   
7.1161  As explained above, the European Communities indicated to the Panel that it intended to 
repeal the measures during the course of these proc eedings;  however, there us no evidence properly 
before the Panel as to whether such repeal actua lly took place or whether the measures continue to 
have legal effect.  Additionally, any such re peal would have taken place after the Panel was 
                                                      
1515 We also note, as pointed out by the European Communities itself, that as  recently as 2009 the 
European Court of Justice, in its decision in the Kip case, expressly "upheld th e validity" of Commission 
Regulation No. 400/2006 (see the European Communities' second oral stat ement, para. 138;  see also Chinese 
Taipei's response to Panel question No. 18 and Chin ese Taipei's second written submission, para. 56).  
Furthermore, we consider the fact that the European Communities is "in the process of formally repealing" 
Commission Regulation Nos. 517/1999 and 400/2006 a furt her indication that these measures are indeed still 
"valid" and thus "formally in force".   
1516 Appellate Body Report on EC – Bananas III  (Article 21.5 – Ecuador II ), para. 270. 
1517 Panel Report on US – Upland Cotton , paras. 7.122, 7.128; upheld by Appellate Body Report on 
US - Upland Cotton , para. 274. 
1518 Panel Report on China – Publications and Audiovisual Products , para. 7.453. 
1519 Panel Report on India – Additional Duties , paras. 7.69-7.70. 
1520 See paras. 7.1164-7.1169 below. WT/DS375/R 
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  established and its terms of reference set.
1521  Therefore, the Panel considers that it may proceed to 
make recommendations with respect to these measures.     
(c) Is the 2005 Statement a measure that can be subject to WTO dispute settlement? 
(i) Arguments of the Parties 
7.1162  All complainants cite the 2005 Statement as a measure at issue.1522  The United States  and 
Japan argue that, through the 2005 Statement, the Eur opean Communities made explicit for the first 
time that output speed – pages per minute – would be  the "key criterion" for determining whether or 
not an MFM would be subject to duties, even t hough copying speed had no basis in the language of 
the various headings at issue.1523  The complainants submit that this page per minute criterion 
effectively moves MFMs with a fax function from duty-free heading 8517 (covering "[f]acsimile 
machines") into dutiable CN code 9009 12 00 (cove ring photocopying machines) and, as of HS2007, 
dutiable CN code 8443 31 91, both subject to a 6 per cent customs duty.1524  Consequently, the 
application of this criterion results in certain  MFMs being excluded from duty-free treatment.  
According to the United States, this constitutes a " per se " exclusion from duty-free treatment.1525  
Further, Chinese Taipei  also mentions that, in addition to  this new criterion applying on the 
Community-wide basis, some EC member States,  such as Germany and the United Kingdom, have 
also incorporated the criterion of 12 pages per mi nute into their "national classification guidance".1526  
7.1163  In response, the European Communities  argues that the 2005 Statement was "never meant to 
have any legal effects".1527 The European Communities submits that the 2005 Statement "records an 
opinion expressed by [the Customs Code Committee]" a nd that "[w]hile it may have some interpretive 
value, it is not a legal act under EC law".1528 
(ii) Consideration by the Panel 
7.1164  With respect to the 2005 Statement, the Panel  understands the essence of  the European 
Communities' argument to be as follows:  The 2005  Statement "is not a legal act under EC law". 
Therefore, it cannot be a "measure" at issue subject to WTO challenge.1529   
                                                      
1521 Appellate Body Report on US – Certain EC Products, para. 81; Appellate Body Report on 
US - Upland Cotton , para. 272; and Appellate Body Report on EC – Bananas III (Article 21.5 – Ecuador II), 
para. 271. 
1522 United States' first written submission, para. 78 (Exhibit US-60); Japan's first written submission, 
paras. 42-43 (Exhibit JPN-6); Chinese Taipei's firs t written submission, para. 114 (Exhibit TPKM-32). 
1523 United States' first written submission, para. 78; Japan's first written submission, para. 57. 
1524 United States' first written submission, paras. 78 and also 79 (referring to BTIs issued in 2006 that 
allegedly demonstrate that EC member States classified MFMs in dutiable CN code 9009 12 00 as photocopiers 
on the basis of the page per minute criterion (Exhibit US-62)); Japan's first written submission, para. 44 (referring to BTIs that allegedly demonstrate that before  and after 2007, EC member States classified MFMs in 
dutiable CN code 9009 12 00 as photocopiers on the basis of the page per minute criterion (Exhibits JPN-7 and 
8)); Chinese Taipei's first written submission, para. 488. 
1525 United States' first written submission, para. 148. 
1526 Chinese Taipei's first written submission, para. 506. 
1527 European Communities' second written submission, para. 160. 
1528 European Communities' response to Panel question No. 24. 
1529 Panel Report on China—Publications and Audiovisual Products, 7.167-7.171 (finding that an 
analysis under Article 3.3 is required when a party asserts that an instrument should not be examined by a panel because it has no legal effect and that such analysis is  required to ensure that a panel does not exceed its 
authority).  WT/DS375/R 
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  7.1165  Article 3.3 of the DSU allows a Member to challenge "measures taken by another Member" 
which it believes may be impairing benefits accruing to it directly or indirectly under the covered 
agreements. Prior panels have dete rmined that, if something brought before them was not a "measure" 
within the meaning of Article 3.3 of the DSU,  they lacked jurisdiction to hear the complaint about the 
measure.
1530  Previous panels have also concluded that , just as with other jurisdictional questions, a 
determination of whether what is brought before a panel is indeed a measure subject to WTO dispute 
settlement can and should be made regardless of wh ether it is raised by the parties to the dispute.1531  
7.1166  The Appellate Body has clarified that "[i]n prin ciple, any act or omission attributable to a 
WTO Member can be a measure of that Member for purposes of dispute settlement proceedings." 1532 
and that   "acts or omissions that are so attributable are,  in the usual case, the acts or omissions of the 
organs of the state, including those of the executive branch.1533"1534 
7.1167  A determination of whether something is a "measure" "must be based on the content and 
substance of the instrument, and not me rely on its form or nomenclature."1535  The Appellate Body has 
clarified that the legal status of an instrument w ithin the domestic legal system of a Member is not 
relevant for determining whether that instrument is a measure within the meaning of Article 3.3 of the 
DSU.1536  Rather any acts, attributable to a Member, which set forth rules or norms that are intended 
to have general and prospectiv e application are measures subject to WTO dispute settlement.1537 
7.1168  When a Member brings a challenge to a rule or norm "as such", as is the case here, the 
Member must establish that it is a rule or norm wh ich is attributable to the responding Member, its 
precise content, and that it has general and prospec tive application.  Evidence to establish the required 
elements can be proof of the systematic a pplication of the challenged "rule or norm".1538   We note 
that we have dealt with the issue of what is require d to challenge a measure "as such" in the context of 
our discussion of the European Communities' argume nts on the CNEN.  See paragraphs 7.153 - 7.160 
above.  We see no reason why the conclusions  would be any different here.    
7.1169  In view of the above, we find unpersuasive the European Communities' argument that the 
2005 Statement should be excluded from the Panel's jurisdiction solely  because it is not "legally 
binding" under EC domestic law.  Having so found however, our analysis must not stop there.  We must still determine whether the complainants have established that the 2005 Statement is attributable 
to the European Communities and whether it is a rule  or norm of general and prospective application, 
such that it fits within the meaning of a "measure " which can be challenged "as such" in WTO dispute 
settlement pursuant to Article 3.3 of the DSU.  
                                                     
 
1530 Panel Report on China – Publications and Audiovisual Products , para. 7.1694. 
1531 Panel Report on China – Publications and Audiovisual Products , para. 7.1658. 
1532 Appellate Body Report on US – Corrosion-Resistant Steel Sunset Review , para. 81. 
1533 (footnote original ) Both specific determinations made by a Member's executive agencies and 
regulations issued by its executive branch can constitute ac ts attributable to that Member.  See, for example, the 
Panel Report in  US – DRAMS , where the measures referred to the panel included a USDOC determination in an 
administrative review as well as a regula tory provision issued by USDOC.   
1534 Appellate Body Report on US – Corrosion-Resistant Steel Sunset Review , para. 81. 
1535 Appellate Body Report on US – Corrosion-Resistant Steel Sunset Review , fn. 87. 
1536 Appellate Body Report on US – Oil Country Tubular Goods Sunset Reviews , para. 187. (finding 
that a non-binding "polic y bulletin" had normative value because it provided administrative guidance and 
created expectations among the public and among private actors.) 
1537 Appellate Body Report on US – Corrosion-Resistant Steel Sunset Review , para. 82. 
1538 Appellate Body Report on US – Zeroing (EC) , para. 198 .  While we note that the systematic 
application of the challenged rule or norm can be ev idence of its general and prospective application such 
evidence is not necessarily required to substantiate an  "as such" challenge to a particular rule or norm.     WT/DS375/R 
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  Is the 2005 Statement Attributable to the European Communities? 
 
7.1170  We first observe that the complainants have  asserted, and the Europ ean Communities has not 
refuted, that the 2005 Statement is a statement of the Customs Code Committee of the European 
Communities.  We recall, in particular, that the Cu stoms Code Committee consists of a representative 
from the Commission's service (who chairs it) and representatives from all EC member States.1539  We 
further recall that: 
"... Article 8 of Regulation No. 2658/87, as amended, also provides that 'customs 
items' can be submitted by the Chairman  of the Customs Code Committee for 
examination, either on its own initiative or at  the request of a representative of an EC 
member State.  Under this 'Article 8 procedure', the Customs Code Committee 
functions as a "discussion forum" between the Commission and the EC member States, and not as the 'Comitology Committee' .  The result of such discussion is then 
reflected in the minutes of the meeting as an 'Article 8' topic. ..." (footnote 
omitted)
1540 
7.1171  The specific statement at issue resulted from a deliberation under item 3 of the agenda of the 
Customs Code Committee's 360th meeting, which contains "[i]tems submitted to the Committee for 
examination under Article 8 of the Regulation (EEC) No 2658/87".1541  More specifically, the issue 
that resulted in such deliberation was included in  sub-item 3.11 of that agenda ("Multifunctional 
digital copiers (doc. TAXUD/2072/2001)*").1542  Among the deliberations under item 3.11, it is 
expressly stated that all EC member States "agreed" to have a "clarification" with respect to the 
classification of certain MFMs in a "Committee stat ement" to be included in Annex VII of that 
Customs Code Committee's meeting report.1543  The Statement in Annex VII, again, indicates that the 
Customs Code Committee had "agreed" to what is stated therein.1544 
7.1172  We note that the European Communities does not  dispute that the 2005 Statement emanated 
from an official organ of the European Communities.   Therefore, based on the foregoing, we conclude 
that the 2005 Statement is attribut able to the European Communities. 
Does the 2005 Statement set forth rules or nor ms of general and prospective application?  
7.1173  With respect to whether the complainants ha ve demonstrated that the 2005 Statement sets 
forth rules or norms of general and prospective a pplication, we note that the complainants have 
provided the Panel with the precise content of the Statement and provided evidence that the 
application of the criteria therein led national cust oms authorities to classify MFMs in the dutiable 
tariff subheading.  Additionally, Chinese Taipei pointed out that some national customs authorities 
incorporated the results of the statement into their own national classification guidance.1545  We also 
note the opinion of the Committee seems to reflec t the position of the European Communities as a 
whole and may therefore have "interpretative value"1546.  We also recall that the panel in 
EC - Selected Custom Matters  explained that, although the results from discussions under an "Article 
                                                      
1539 See paragraph 7.47 above. 
1540 See paragraph 7.48 above. 
1541 See 2005 Statement, p. 2. 
1542 See 2005 Statement, p. 3.  The other agenda item 3's subheadings were: " Items for a first 
examination (fact finding) " and " Items for discussion ."  Id., at pp. 2-3. 
1543 See 2005 Stat ement, pp.7-8. 
1544 See 2005 Statement, p. 11. 
1545 Chinese Taipei's first written submission, para. 506. 
1546 European Communities' response to Panel question No. 24.  WT/DS375/R 
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  8 procedure", either in the form of "statements" or  "opinions", are "not legally binding", the European 
Court of Justice has held that they neverthel ess "constitute an important means of ensuring the 
uniform application of the common customs tariff by the authorities of the member States and, as 
such, can be considered as a valid aid to the interpretation of the Common Customs Tariff."
1547  
Therefore, we believe that the 2005 Statement, a lthough not "legally binding" within the European 
Communities' legal system, nonetheless does set fort h rules or norms of general and prospective 
application within the European Communities.   
Conclusion of the Panel  
7.1174  In view of the foregoing, we conclude that  the 2005 Statement is a measure within the 
meaning of Article 3.3 of the DSU as it is attri butable to the European Communities and sets forth 
rules or norms of general and prospective applica tion.  Consequently, because the 2005 Statement is a 
measure and it is undisputed that it was specifically id entified in the joint Panel request, the Panel will 
proceed to make findings with respect to the WTO consistency of this measure.   
(d) Have the complainants added new measures and new claims that were not specified in the 
joint Panel request? 
7.1175  The European Communities has ar gued that the complainants, by  alleging that the European 
Communities has taken certain measures inconsistent  with European Communities' tariff concessions 
embodied in codes of the CN other than in the CN  codes specified in the joint Panel request, have 
raised new measures and new claims which are not within the Panel's term s of reference.  The 
European Communities' arguments ra ise the issue of whether the comp lainants have complied with 
the obligations set forth in Article 6.2 of the DS U as to what must be contained in a request for 
establishment of a panel.  Therefore, in this secti on, we will discuss the content of the obligations in 
Article 6.2 and whether the measures and claims  which the European Communities' alleges are 
inadmissible are within our terms of reference. 
(i) Article 6.2 of the DSU 
7.1176  Article 6.2 of the DSU provides, in relevant part: 
"The request for the establishment of a pane l shall be made in writing.  It shall 
indicate whether consultations were held, identify the specific measures at issue and 
provide a brief summary of the legal basis of the complaint sufficient to present the 
problem clearly." 
7.1177  In Korea – Dairy, the Appellate Body explained that Article 6.2 contains four distinct 
obligations with respect to the Panel Request: 
                                                      
1547 Panel Report on EC - Selected Customs Matters , para. 2.40 (citing the European Court of Justice 
(Dittmeyer), para. 4).  We find the description of the value of the 2005 Statement provided by the European 
Court of Justice itself is analogous to that of the Sunset Policy Bulletin of the US Department of Commerce 
which was challenged "as such" in several cases and found  to be a measure by those panels and the Appellate 
Body.  See Appellate Body Report on US – Corrosion-Resistant Steel Sunset Review , para. 81; Panel Report on 
US – Oil Country Tubular Goods Sunset Reviews, para. 7.136.  For example, the United States has explained 
that "under [US] law, the Sunset Policy Bulletin w ould be considered a non-binding statement, providing 
evidence of [the DOC's] understanding of sunset-relate d issues not explicitly addressed by the statute and 
regulations."  Panel Report on US – Corrosion-Resistant Steel Sunset Review, para. 7.121.    WT/DS375/R 
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  "The request must:  (i)  be in writing;  (ii)   indicate whether consultations were held;  
(iii)  identify the specific measures at issue;  and  (iv)  provide a brief summary of the legal basis of the complaint suffici ent to present the problem clearly."
1548   
7.1178  The arguments of the European Communities in this respect concern the latter two 
obligations.  The Appellate Body has explained that  these requirements are intended to ensure that the 
complainant present[s] the problem clearly in the panel request.1549  The particular importance of 
compliance with the two latter obligations in Article  6.2 was highlighted by the Appellate Body which 
has explained that together the identification of  the specific measure and the legal basis of the 
complaint comprise the "matter referred to the DS B" which forms the basis for a panel's terms of 
reference under Article 7.1 of the DSU.1550 
7.1179  The terms of reference have two essential purposes:  first, to give the parties and third parties 
sufficient information concerning the claims at issu e in the dispute to allow them an opportunity to 
respond to the complainant's case; and second, to est ablish the jurisdiction of the panel by defining the 
precise claims at issue in the dispute.1551 
7.1180  Compliance with the requirements of Article 6. 2 must be determined on the merits of each 
case, having considered the panel request as a whol e, and in the light of attendant circumstances.1552  
When reviewing a panel request, "it is important when examining the consistency of part of the 
request for establishment with Article 6.2 of the DSU, not to examine parts of this request in isolation 
. . . the request must be considered as a whole,  and the different claims in the request for 
establishment must be read in their context."1553  Additionally, a panel may consult the submissions 
and statement made during the course of the panel pr oceedings  "in order to confirm the meaning of 
the words used in the panel request and as part of the assessment of whether the ability of the 
respondent to defend itself was prejudiced."1554 
Identification of the specific measures at issue  
7.1181  For purposes of compliance with Article 6.2 it is necessary for the complaining party to 
identify the measures at issue.  Although it may be su fficient to identify a measure by its form, (i.e., 
by the name, number, date and place of promulgation of a law, regulation, etc. ...) this is not the only 
manner of identification which could serve to satisfy  the obligation in Article 6.2 of the DSU.  A 
measure may also be identified by its substance1555, e.g. by providing a narrative description of the 
nature of the measure, so that what is referred to  adjudication by a panel may be discerned from the 
panel request.1556    
                                                      
1548 Appellate Body Report on Korea – Dairy, para. 120. 
1549 Appellate Body Report on US – Continued Zeroing , para. 160. 
1550 Appellate Body Report on Guatemala – Cement I , paras. 69-76; see also Appellate Body Report on 
US – Carbon Steel, paras. 125-127. 
1551 Appellate Body Report on Brazil – Desiccated Coconut , DSR 1997:I, p. 186. 
1552 Appellate Body Report on Korea – Dairy , paras. 124-127; also Appellate Body Report on 
US - Carbon Steel, para. 127. 
1553 Panel Report on Mexico – Anti-dumping Measures on Rice , para. 7.31 ( original footnote omitted ). 
1554 Appellate Body Report on US -  Carbon Steel , para. 127. 
1555 Panel Report on Argentina – Footwear (EC) , para. 8.40; also Panel Report on 
EC - Approval and Marketing of Biotech Products,  para. 7.47. 
1556 Appellate Body Report on US – Continued Zeroing , para. 168.  WT/DS375/R 
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  Provision of a brief summary of the legal basis of the complaint 
 
7.1182  Article 6.2 of the DSU requires a complainant to provide a brief summary of the legal basis of 
its complaint.  In US – Oil Country Tubular Goods Sunset Reviews , the Appellate Body found that the 
term 'legal basis' in Article 6.2 of the DSU re fers to the claim made by the complaining party.1557     
7.1183  The Appellate Body has also clarified that a clai m sets forth the complainant's view that "the 
respondent party has violated, or nullified or impaired the benefits arising from, an identified provision of a particular agreement,
 1558    
7.1184  Although a complainant must provide a "summary" of the legal basis of its complaint, this 
does not mean, however, that the complainant is requ ired, in its request for establishment, to set out 
the arguments in support of a particular claim.  We consider that there is a significant difference 
between the claims identified in the request for the establishment of a panel, which establish the 
panel's terms of reference under Ar ticle 7 of the DSU, and the arguments supporting those claims.  
While a claim sets forth the complainant's view that  the respondent party has violated, or nullified or 
impaired the benefits arising from, an identified pr ovision of a particular agreement,  arguments are 
what is adduced by a complaining party to demonstrate that the responding party's measure does indeed infringe upon the identified treaty provision.
 1559  The arguments in support of a claim may be 
set out and progressively clarified in the first written submissions, the rebuttal submissions and the first and second panel meetings with the parties.
1560  By contrast a party may not use its submissions 
to "cure" a deficient panel request.1561    
Sufficient to present the problem clearly  
7.1185  The Appellate Body has explained that the requi rements in Article 6.2 to identify the specific 
measures at issue and the provision of a brief su mmary of the legal basis of the complaint "are 
intended to ensure that the complaining party 'pr esent[s] the problem clearly' in its panel request."1562 
7.1186  The "problem" is not solely the obligations in the covered agreements nor the respondent 
Member's measures but rather wh ether the respondent Member's measures comport with those 
obligations.  Therefore, to sufficiently present the problem clearly, a complaining Member must 
"plainly connect the challenged measure(s) with th e provision(s) of the covered agreements claimed 
to have been infringed, so that the respondent part y is aware of the basis for the alleged nullification 
or impairment of the complaining party's benefits." 1563  As the Appellate Body has explained, "[o]nly 
by such connection between the measure(s) and the relevant provision(s) can a respondent "know 
what case it has to answer, and ... begin preparing its defence".1564"1565  
7.1187  This understanding is consistent with the essen tial purpose of the panel request which is to 
give the parties and third parties sufficient informati on concerning the claims at issue in the dispute to 
                                                      
1557 Appellate Body Report on US – Oil Country Tubular Goods Sunset Reviews , para. 162. 
1558 Appellate Body Report on Korea – Dairy , para. 139. 
1559 Appellate Body Report on Korea – Dairy , para. 139. 
1560 Appellate Body Report on EC – Bananas  III, para. 141. 
1561 Appellate Body Report on EC – Bananas III , para. 143; Appellate Body Report on  
United States - Carbon Steel , para. 127. 
1562 Appellate Body Report on US – Continued Zeroing , para. 160. 
1563 Appellate Body Report on US – Oil Country Tubular Goods Sunset Review , para. 162. 
1564 (footnote original ) Appellate Body Report on Thailand – H-Beams , para. 88. 
1565 Appellate Body Report on US – Oil Country Tubular Goods Sunset Review , para. 162; see also 
Appellate Body Report on Brazil – Desiccated Coconut , DSR 1997:I, p. 186. WT/DS375/R 
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  allow them an opportunity to respond to the complainant's case
1566 which is concerned with the due 
process rights of the respondent.1567  It is worth recalling that due process protections are "inherent in 
the WTO dispute settlement system"1568 and are "fundamental to ensuring a fair and orderly conduct 
of dispute settlement proceedings".1569         
(ii) Codes of the CN other than 8443 31 91 
Arguments of the parties  
7.1188  The European Communities  argues that it currently classifies all MFMs (as defined in the 
joint Panel request) under CN2007 code  8443 31, which contains only one dutiable code, i.e. CN2007 
code 8443 31 91.  Therefore, the European Comm unities understands the complainants' claim to only 
concern such eight-digit dutiable code.1570  The European Communities asserts that because CN2007 
code 8443 31 91 is the only code cited in the joint Panel request under the MFM claims, any claim 
concerning tariff treatment under any other code than CN2007 code 8443 31 91 would be outside the 
Panel's terms of reference.1571 
7.1189  The European Communities contends that nothing in the joint Panel requ est suggests that the 
reference to the CN2007 codes of subheading 8443 31 w as merely "illustrative" and that there might 
be tariff treatment under any other codes which the complainants believe d was inconsistent with the 
European Communities' tariff concessions.  The Eu ropean Communities argues that a mere reference 
to Council Regulation (EEC) No 2658/87 (i.e. the CN 2007) is not, on its own, specific enough to meet 
the requirements of Article 6.2 of the DSU, because the CN2007 covers thousands of different 
headings and subheadings.1572   
7.1190  The European Communities has pointed out that th e complainants have referred to the tariff 
treatment provided by other codes to ADP MFMs  or to other products which the European 
Communities believes are not properly before the Panel. 
7.1191  In particular, the European Communities point s to Chinese Taipei's statement that the 
MFM-related claims also cover "ADP MFMs whic h perform a scanning and copy function but not a 
facsimile function", which are classifiable under the 6 per cent ad valorem  dutiable CN2007 code 
8443 32 91.1573  The European Communities argues that su ch a claim is "manifestly outside the 
                                                      
1566 Appellate Body Report on Brazil – Desiccated Coconut , DSR 1997:I, p. 186. 
1567 Panel Report on China – Publications and Audiovisual Products , para. 7.28.   
1568 Appellate Body Report on Chile – Price Band System , para. 176.  See also Appellate Body Report 
on Mexico – Corn Syrup (Article 21.5 – US) , para. 107. 
1569 Appellate Body Report on Thailand – H-Beams , para. 88. 
1570 The European Communities submits that Japan seems to confirm this understanding when it stated 
that the only "cure" for the "WTO inconsistency of impos ing duties on MFMs that should be duty-free under the 
EC concessions" will be to "eliminate the duty under CN 8443 31 91 and to stop imposing duties" on these devices. (European communities' second oral statement, para. 98, citing para. 35 of Japan's first written 
submission). 
1571 European Communities' second written submission, paras. 195-199 (commenting on the 
complainants' responses to Panel question No. 37). 
1572 European Communities' comments on the complainants' responses to Panel question No. 123.  
More particularly, the European Co mmunities observes that some arguments of critical importance for the 
complainants' claims are irrelevant in relation to the machines at i ssue because those machines have no printing  
function. Examples include the complainants' arguments to the effect that the MFMs at  issue are "printers" for 
the purposes of Note 5(D) to HS1996 heading 84.71 or that printing is the principal function for the purposes of Note 5(B) to HS1996 heading 84.71 or of Note 2 to HS1996 Section XVI.  Ibid. 
1573 Chinese Taipei's second written submission, para. 293.  WT/DS375/R 
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  Panel's terms of reference" because this specific CN2007 code was never expr essly mentioned in the 
joint Panel request
1574 and this "new product" described by Ch inese Taipei is not covered by the MFM 
description used in footnote 15 of the joint Panel request.1575   
7.1192  Additionally, the European Communities points to  the United States' answer to question 137, 
in which the United States argues 
"[W]hile non-ADP MFMs whose essential charact er is that of a facsimile machine, 
are included in the concession for 'facsim ile machines' under subheading 8517 21, 
other non-ADP MFMs may not be 'facsimile machines' and therefore would fall 
within the concession for goods of subheadi ng 8472 90. . . Moreover, as the United 
States has noted, the only other appropriate subheading for non-ADP MFMs is subheading 8472 90 — a subheading for which the EC has a bound duty of 2.2%.  Thus, all complainants are equally in agreement that the EC measures — which 
subject non-ADP MFMs to a duty of 6 per cent — result in WTO-inconsistent duty 
treatment for all non-ADP MFMs."
1576 
7.1193  The European Communities objects to this asser tion and considers that it "amounts to an 
entirely new claim, based on a different legal basis, which is not covered by th e terms of reference of 
the Panel".  In the European Communities' view, this  "new claim" is outside the terms of reference 
because "the Panel request makes no referen ce to the EC's concession for HS96 8472 90" and, 
furthermore, "the Panel request makes it clear that the present dispute is concerned exclusively with 
the duty-free concessions made by the European Comm unities pursuant to the ITA".  In addition to 
contending that this "new claim" is outside the terms of reference, the European Communities also 
submits that, should the Panel conclude that, as c onceded by the United States, some non-ADP MFMs 
are not covered by the concession for HS1996 subhead ing 8517 21, but instead by the concession for 
HS1996 subheading 8472 90, the Panel should refrain from examining the consistency of the tariff 
treatment given to those non-ADP MFMs unde r EC Measures with the latter EC concession.1577 
7.1194  Finally, the European Communities also objects to  Chinese Taipei's reference, in response to 
Panel question No. 127(b), that the European Comm unities may have breached  the concession in its 
Schedule covering products described in CN code  8472 90 90 by increasing the duties applicable to 
"stand alone digital copiers" from 2.2% to 6 per cent.  The European Communities recalls that the joint Panel request makes no reference whatsoever to  either "stand-alone digital copiers" or to the 
European Communities' concession for HS1996 subhead ing 8472 90.  Furthermore, that concession 
was not even made pursuant to the ITA.  Insofa r as Chinese Taipei's assertion should be understood as 
raising a "new claim", the European Communities requ ests the Panel to rule th at such claim is also 
outside its terms of reference.
1578 
7.1195  The complainants  argue that the CN2007 en toto  was listed as a measure at issue in the joint 
Panel request and that the claims are not limited to  certain CN codes which we re explicitly referenced 
                                                      
1574 The European Communities further notes that the complainants had not even cited CN2007 code 
8443 32 91 in their submissions "until the issue of the scope of that code was raised by the Panel's questions 
after the first substantive meeting." (European Communities' comments on the complainants' responses to Panel 
question No. 123). 
1575 European Communities' comments on the complainants' responses to Panel question No. 123. 
1576 United States' response to Panel question No. 137. 
1577 European Communities' comments on the United States' response to Panel question No. 137. 
1578 European Communities' comments on Chinese Taipei 's response to Panel question No. 127(b) (also 
commenting and/or citing Chinese Taipei's response to Panel question No. 44). WT/DS375/R 
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  in the joint Panel request.
1579  In the complainants' view any tariff lines from the CN2007 that cover 
the "products at issue" are within the Panel's terms of reference. In  support of this view, Chinese 
Taipei and Japan note that the description of MFMs contai ned in footnote 15 of the joint Panel 
request is not limited  to products of CN2007 code  8443 31 91, for this description is wide enough to 
cover the machines matching the d escription of CN2007 code 8443 32 91.1580  Chinese Taipei further 
notes that, in fact, the products covered by CN 2007 code 8443 32 91 are descri bed in identical terms 
as those described in CN2007 code 8443 31 91, na mely "[m]achines performing a copying function 
by scanning the original and printing the copies by means of an electrostatic  print engine" and they 
are equally "capable of connecting to an auto matic data-processing machine or to a network".1581  
Japan agrees with Chinese Taipei, arguing that the discussion of the specific tariff lines within 
CN2007 code 8443 in the joint Panel request was simply illustrative  and does not limit the panel 
request to only those tariff lines.1582 
Consideration by the Panel  
7.1196  The Panel  understands the European Communities to  be concerned that the complainants 
may be seeking to have the Panel make findings on the WTO consistency of the tariff treatment of 
MFMs under CN codes that were not specifically id entified as measures at is sue in the joint Panel 
request.  Additionally, the European Communities does not want the Panel to make findings on the WTO consistency of the European Communities tari ff treatment of "stand alone digital copiers", 
which were likewise not referred to by the compla inants' as a product that was the subject of their 
claims in the joint Panel request.  According to the European Communities, such claims are outside 
the Panel's terms of reference.  On the other hand, the complainants maintain that the CN as a whole 
was identified as a specific measure at issue in th e joint Panel request, and that any specific codes 
mentioned in the request were not meant to limit th e complainants' claims to those codes, but were 
purely illustrative in nature.  
7.1197  The arguments of the European Communities rai se the question of whether the complainants 
may properly pursue claims that CN codes other th an 8443 31 91 are inconsistent with the European 
Communities' obligations under the GATT 1994 or wh ether the European Communities is providing 
inconsistent tariff treatment to prod ucts other than the MFMs described  in the joint Panel request.  In 
essence, the European Communities is arguing that the complainants failed to comply with the 
obligations in Article 6.2 of the DSU.  We re call that the Appellate Body has explained that 
determining the consistency of a pa nel request with the obligations in Article 6.2 must be done by 
examining the panel request as a whole and in light of the attendant circumstances.  Therefore, the starting point for our analysis of whether these "claim s" are within our terms of reference is the joint 
Panel request itself. 
7.1198  We recall that the joint Panel request states th at Customs authorities of EC member States 
impose duties on MFMs.  The measures at i ssue through which they do so include: 
 1. Commission Regulation (EC) No. 517/1999 of 9 March 1999; 
                                                     
 
1579 We note that the complainant's did not have an opportunity to respond the European Communities 
specific allegations that they were ra ising new claims with respect to CN code 8472 90 or stand alone digital 
copiers as the European Communities made these argume nts in its comments on the complainants' answers to 
the Panel's question after the second substantive meeting, which was the last opportunity to make submissions to 
the Panel. 
1580 Chinese Taipei and Japan's responses to Panel question No. 123. 
1581 Chinese Taipei's second written submission, para. 293; Chinese Taipei's second oral statement, 
paras. 61-66;  Chinese Taipei's response to Panel question No. 123.   
1582 Japan's response to Panel question No. 123.  WT/DS375/R 
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2. Report of the Conclusions of the 360th meeting of the Customs Code Committee, 
Tariff and Statistical Nomenclature S ection, TAXUD/555/2005-EN (March 2005); 
  3. Commission Regulation (EC) No. 400/2006 of 8 March 2006; and   
 4. Council Regulation (EEC) No. 2658/87 of  23 July 1987 on the tariff and statistical 
nomenclature and on the Common Customs Tariff, including all annexes thereto, as amended,
1583  
 
as well as any amendments or extensions and any related or implementing measures.1584 
 7.1199  The joint Panel request then provides a narrative de scription of the measures and their effects.  
In particular with respect to Council Regulation No. 2658/87, the complainants note: 
"On 31 October 2006, the EC amended Counc il Regulation (EEC) No. 2658/87 of 23 
July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, creating CN 8443 31 10 ("[m]achines pe rforming the functions of copying and 
facsimile transmission, whether or not with a printing function, with a copying speed not exceeding 12 monochrome pages per minute"), CN 8443 31 91 ("[o]ther; 
[m]achines performing a copying function by scanning the original and printing the 
copies by means of an electrostatic engine") and CN 8443 31 99 ("[o]ther").  By virtue of these subcategories, MFMs with copying speeds of more than 12 monochrome pages per minute and with an electrostatic engine are classified under CN 8443 31 91.  The duty rate for CN 8443 31 91 is 6 per cent.  
As a result, customs authorities of EC member States have been applying a 6 per cent 
duty on imports of certain MFMs, instead of providing duty-free treatment as required by the EC Schedules. The United States, Japan, and the Separate Customs 
Territory of Taiwan, Penghu, Kinmen and Matsu consider that their commerce has 
been accorded treatme nt less favourable than that pr ovided in the EC Schedules, and 
that ordinary customs duties, or other duti es and charges, in excess of those set forth 
in the EC Schedules have been applied to cer tain "input or output units" of "automatic 
data-processing machines" and facsimile machin es, inconsistent with the obligations 
of the EC and its member States under Articles II:1(a) and II:1(b) of the GATT 1994.  The measures at issue nullify or impair, within the meaning of GATT Article XXIII, 
benefits accruing directly or indirectly to  the United States, Japan, and the Separate 
Customs Territory of Taiwan, Penghu, Kinmen and Matsu under the GATT 1994."
1585 
7.1200  Footnote 15 to the joint Panel request defines MFMs as machines which perform two or more 
of the functions of printing, copying, or facsimile transmission, capable of connecting to an automatic 
data-processing machine or to a network (inc luding devices commercially known as MFPs 
                                                      
1583 (footnote original) Including amendments adopted pursuant to Commission Regulation 
No. 1214/2007 of 20 September 2007. 
1584 (footnote original) Including the actual application by customs authorities of EC member States of 
a 6 per cent duty on imports of certain MFMs. 
1585 Joint Panel Request, WT/DS375/8, 376/8, 377/6, p. 6. WT/DS375/R 
WT/DS376/R WT/DS377/R 
Page 352 
  
  (multifunctional printers), other "i nput or output units" of "autom atic data-processing machines", and 
facsimile machines).
1586 
7.1201  The initial listing of the measures does refer to the entire CN, by referring to Council 
Regulation No. 2658/87.  However, we recall that th e conformity of a panel request with Article 6.2 
of the DSU must be judged on the basis of the panel re quest as a whole.  Therefore, we agree with the 
panel in China – Publications and Audiovisual Products  that we should look not only at the formal 
names of the measures, but also at the complainants ' narrative description of the measures at issue in 
the panel request.1587 In their description, the complainants refer to three CN codes (8443 31 10, 8443 
31 91, and 8443 31 99), and note that it is by virtue  of the subcategorization of the relevant 
subheading into these three CN codes that MFMs with copying speeds of more than 12 monochrome 
pages per minute and with an electrostatic engi ne are classified in CN code 8443 31 91.  The 
complainants assert that it is as a result of this  classification that the customs authorities of EC 
member States have been applying a 6 per cent duty on imports of certain MFMs rather than the duty-
free treatment the complainants believe is required. 
7.1202  It is worth recalling here the important role th e panel request plays in notifying the respondent 
Member of the claims it has to answer and to enable it to prepare its defence.  Due process 
considerations, therefore, would caution against allowing measures and products into the Panel's 
terms of reference that a respondent party had not received notice of.   
7.1203  We are aware that prior panels have found that there is no obligation in Article 6.2 to identify 
specific aspects of the specific measu res or to identify the particular products at issue if these could 
reasonably be discerned from the Panel request.1588   
7.1204  With respect to the joint Panel request in th is case, however, we find that, by specifically 
listing the particular provisions of the CN under which the European Communities classifies MFMs, 
by defining in footnote 15 the universe of MFM pr oducts about which they were concerned, and by 
asserting that WTO-inconsistent, dutiable treatment arises as a "result" of the classification of the 
defined MFMs into the particular provisions of the CN, the complainants informed the European 
Communities that their complaints were limited to  the products defined in footnote 15 and the 
dutiable tariff treatment of such products resulting from the subcategorization of the CN into CN 
codes 8443 31 10, 8443 31 91, and 8443 31 99.  More over, we note that the complainants' narrative 
does not contain qualifying language that would indicat e that the listing of the particular dutiable CN 
codes was illustrative, merely a listing of examples, or non-exhaustive.1589  This lack of qualification 
is particularly important in the case of an inst rument like the CN, which contains thousands of 
different headings and subheadings.1590    
7.1205  We therefore conclude that, at least under the particular circumstances of the dispute before 
us, the identification of the specific measure at i ssue in this dispute was not accomplished solely by 
listing in the joint Panel request the Council Regulation which contained, as an Annex, the entire CN.    
                                                      
1586 Joint Panel Request, WT/DS375/8, 376/8, 377/6, fn. 15. 
1587 Panel Report on China – Publications and Audiovisual Products , para. 7.47. 
1588 Appellate Body Report on EC - Chicken Cuts , para. 165. 
1589 We find support for our understanding in the Panel Report on China – Publications 
and Audiovisual Products , paras. 7.93-7.104 where that panel found that particular requirements in legislation 
which was listed as a measure at issue in the panel reque st were outside the panel's terms of reference because 
they had not been discussed in the narrative description of the measures in the panel request. 
1590 Panel Report on Japan – Film , para. 10.16 (That panel hesitated to say that a reference to a law 
with a very broad scope that dealt with a broad range of i ssues would be sufficient to bring all measures taken by a 
respondent under that law within the scope of the panel request).  WT/DS375/R 
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  Rather, via the narrative description in the joint Panel request, the complainants informed the 
European Communities that they were only challeng ing the specific CN codes, which resulted in the 
alleged less favourable and excessive tariff treatment, i.e., CN 8443 31 10, 84 43 31 91, 8443 31 99.  
Additionally, via the definition provided in footnot e 15 the complainants also notified the European 
Communities that their complaint was limited to th e tariff treatment being accorded to the products 
described in such footnote.  As a consequence, we find that any claims of inconsistency with Article II 
of the GATT 1994 raised during these proceedings which are based on CN codes not expressly cited in the joint Panel request or products other than  the MFMs described in footnote 15 are outside the 
terms of reference of this Panel.   
2. The measures at issue and their effects 
7.1206  In their joint Panel request, the complainants  identified the following as the EC measures at 
issue in this dispute with respect  to their claims of less favourable tariff treatment and excessive duties 
for imports of MFMs: 
- Commission Regulation No. 517/1999
1591; 
 - Report of the Conclusions of the 360
th meeting of the Customs Code Committee (the 
"2005 Statement")1592; 
 - Commission Regulation No. 400/2006
1593; 
 
- Council Regulation No. 2658/87,  as amended (the "CN2007")1594; and 
 - Any amendments or extensions and any related or implementing measures. 
 
7.1207  We will discuss the substance of each of these me asures and their effects, in turn, below. 
(a) Commission Regulation No. 517/1999  
7.1208  The preamble of Commission Regulation No. 517/ 1999 provides the following in its relevant 
parts: 
"Whereas in order to ensure uniform appli cation of the Combined Nomenclature (…) 
it is necessary to adopt measures concerning the classification of the goods referred to 
in the Annex to this Regulation; 
(…) Whereas (…)  the goods described in column  1 of the table annexed to the present 
Regulation must be classified under the appropr iate CN codes indicated in column 2, 
by virtue of the reasons set out in column 3;" 
7.1209  The Annex to Commission Regulation No. 517/1999 , cited in its preamble, deals with two 
"multifunctional apparatus" and contains for each of them one column (1), where they are described, a 
                                                     
 
1591 Exhibits US-59; JPN-4; TPKM-35. 
1592 Exhibits US-60; JPN-6; TPKM-32. 
1593 Exhibits US-61; JPN-5; TPKM-36. 
1594 Exhibits US-47; JPN-2; TPKM-34.   WT/DS375/R 
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Page 354 
  
  second column (2), where their respective classifi cation within the CN is indicated, and a third 
column (3), where the reason for such classification is  provided.  It also cont ains two illustrations of 
such products.  The relevant part of  this Annex is set out below:  
  WT/DS375/R 
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  (i) Arguments of the parties 
7.1210  The complainants explain that via Commission Regulation No. 517/1999
1595 the European 
Communities began to reclassify certain MFMs as "photocopiers" in dutiable CN code 9009 12 00.1596  
In particular, the complainants refer to item 2 of the Annex to that regulation, which states that a 
device capable of scanning, printi ng, faxing, and photocopying (indirect process) which has several 
paper feed trays and is capable of reproducing up to 30 A4 pages per minute should be classifiable in 
dutiable CN code 9009 12 00, which sets a 6 per cen t duty rate.  The apparatus operates either in 
autonomous form or in conjunction with an auto matic data-processing machine or in an automatic 
data-processing network.1597    
7.1211  Chinese Taipei and the United States note that the main criterion for such "reclassification" 
is that the MFMs at issue have several functions , i.e., printing, scanning, copying and faxing, while 
none of the functions are considered to gi ve to the apparatus its essential character. 1598  The European 
Communities, pursuant to the regulation, therefore classified the product on the basis of  GIR 3(c) 
under the heading which comes last in numerical  order, i.e., under CN subheading 9009 12 00.1599 
7.1212  The complainants also noted that item 1 of the Annex of Commission Regulation No. 
517/1999  relied upon Note 3 to Section XVI of the CN, inter alia , to conclude that a multifunctional 
facsimile machine with a modem, scanner and prin ting device was classifiable in the duty-free CN 
subheading of 8517 21 because the facsimile  function was its principal function.1600   
7.1213   As noted in paragraph 7.1152 the European Co mmunities contends that the only measure at 
issue is the current version of the CN.1601 The European Communities did not provide specific 
argumentation on the effects of Co mmission Regulation No. 517/1999 . 
(ii) Consideration by the Panel 
7.1214  We note that the European Communities does not  contest that the Annex to Commission 
Regulation No. 517/1999 states that a device capable of scanning, printing, faxing, and photocopying 
through (indirect process) which has several paper feed trays and is capable of reproducing up to 30 
A4 pages per minute should be classifiable in dutiable CN code 9009 12 00 by virtue of the application of GIR 3(c). Nor does the European  Communities contest that the preamble of 
Commission Regulation No. 517/1999 states that  "the goods described in column 1 of the table annexed to the present Regulation must  be classified under the appropriate CN codes indicated in 
column 2, by virtue of the reasons set out in column 3" (emphasis added). 
7.1215  Therefore, the undisputed meaning of Commission Regulation No. 517/1999 is that: (1) a 
multifunction facsimile machine as described in ite m 1 of the Annex must be classified under CN 
                                                     
 
1595 Exhibits US-59; JPN-4; TPKM-35. 
1596 United States' first written submission, para. 77, Japan's first written submission, paras. 53-54 and 
Chinese Taipei's first written submission, paras. 496- 497 (all referring to European Court of Justice (Rank 
Xerox) (Exhibits US-58; TPKM-62)). 
1597 United States' first written submission, para. 77; Japan's first written submission, para. 39; Chinese 
Taipei's first written submission, paras. 487, 500. 
1598 United States' first written submission, para. 77; Chinese Taipei's first written submission, 
para. 486. 
1599 Chinese Taipei's first written submission, para. 487. 
1600 Japan's first written submission, para. 38, fn. 27; Chinese Taipei's first written submission, 
para. 500. 
1601 European Communities' first written submission, para. 342. WT/DS375/R 
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  code 8517 21 00, which sets a duty rate of 0 per cen t; meanwhile (2) a MFM meeting the description 
set forth in item 2 of the Annex must be classifi ed under CN code 9009 12 00, which sets a duty rate 
of 6 per cent. 
(b) The 2005 Statement 
7.1216  From 26 to 28 January 2005, the European Co mmunities' Customs Code Committee held its 
360
th meeting. According to the Report thereof, it was proposed during this meeting to make a 
clarification regarding an indicator for distinguishing between fax-machines  and digital copiers .  All 
EC member States agreed to have such a clarifica tion, which was reflected as attached in Annex VII 
of the minutes of that meeting.1602 
7.1217  The relevant parts of the 2005 Statement reads as follows: 
"Items for conclusion 3.11 Multifunctional digital copiers (doc. TAXUD/2070/2001)* 
Letter from EICTA was circulated. 
The Chair made it clear that the issue is not to classify multifunctional devices.  This 
debate was closed.  Regulation was issued in 1999 (Regulation 517/99) and discussions in the HS committee 'closed.'  One needs to appreciate the product as a 
whole.  Thus, the issue is to make a clarification and not a classification.  Nevertheless an indicator for distinguishi ng between fax-machines and digital copiers 
could be the number of pages per minute.  
All MS agreed to have the clarifica tion of the issue as reflected in the Committee 
statement  in annex VII. 
(…) 
TAXUD/555/2005-EN 
        ANNEX VII 
Statement on the classification of "multifunctional devices"
 
The Committee agreed that if a multifunctiona l device (fax, printer, scanner, copier) 
has the capability of photocopying in black and white 12 or more pages per minute (A4 format) this indicates that the product is classifiable in heading 9009 as a photocopying apparatus."
1603 
                                                      
1602 See the United States' first written submission,  para. 78 and fn. 121; Japan's first written 
submission, paras. 42-43; Chinese Taipei's first written submission, para. 114. 
1603 The 2005 Statement, pp. 7 and 11, respectively.  Commission Regulation No. 517/99, cited in this 
excerpt of the 2005 Statement, is Commission Regulation No. 517/1999 , one of the measures at issue described 
above at paras. 7.1208-7.1209.  WT/DS375/R 
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  (i) Arguments of the parties 
7.1218  The United States  and Japan argue that, through the 2005 Statement, the European 
Communities made explicit for the first time that output speed – pages per minute – would be the "key 
criterion" for determining whether or not an MFM would be subject to duties –i.e., whether it would 
be a facsimile machine under duty-free 8517 or a photocopier under dutiable 9009 - even though 
copying speed had no basis in the langua ge of the various headings at issue.
1604  The complainants 
submit that this page per minute criterion reclassifies MFMs with a fax function from duty-free heading 8517 (covering "[f]acsimile machines" ) into dutiable CN code 9009 12 00 (covering 
photocopying machines) and, as of HS2007, dutiable CN code 8443 31 91, both subject to a 6 per cent 
customs duty.
1605 They thus argue that the application of this criterion results in the exclusion for 
certain MFMs from duty-free treatment.  According to the United States, it is a " per se " exclusion 
from duty-free treatment.1606   
7.1219  Other than contesting the legally binding nature  of the 2005 Statement (see paragraph 7.1163 
above), the European Communities  did not provide specific argumentation on the effects of this 
2005 Statement. 
(ii) Consideration by the Panel 
7.1220  The language of the 2005 Statement clarifies th at the number of pages per minute (A4 format) 
that a multifunctional (printer, scanner, copier, fax) device can "photocopy" in black and white can serve as an indication to national customs authoriti es that the device is a photocopier and therefore 
properly classifiable in the dutiable CN code 9009 12 00.  The statement specifically sets 12 or more 
pages per minute (A4 format) as the tipping point of indicating that the product is a photocopier. 
7.1221  We recall that a Statement of the Customs C ode Committee constitutes an important means of 
ensuring the uniform application of the common cu stoms tariff by the authorities of the member 
States and, as such, can be considered as a valid  aid to the interpretation of the Common Customs 
Tariff.
1607 The guidance the 2005 Statement provides to national customs authorities with respect to 
the uniform application of the common customs tariff  is to classify MFMs which can "photocopy" in 
black and white 12 or more pages per minute (A4 fo rmat) as a photocopier under CN code 9009 12 00 
which sets a 6 per cent duty rate.   
(c) Commission Regulation No. 400/2006  
7.1222  The preamble of Commission Regulation No. 400/ 2006  provides the following in its relevant 
parts: 
"Whereas: 
 
                                                      
1604 United States' first written submission, para. 78; Japan's first written submission, para. 57. 
1605 United States' first written submission, paras. 78 and also 79 (referring to BTIs issued in 2006 that 
would demonstrate that EC member States classified MFMs in dutiable CN code 9009 12 00 as photocopiers on 
the basis of the page per minute criterion (Exhibit US-62 )); Japan's first written subm ission, para. 44 (referring 
to BTIs that would demonstrate that before and after 2 007, EC member States classi fied MFMs in dutiable CN 
code 9009 12 00 as photocopiers on the basis of the page per minute criterion (Exhibits JPN-7-8)); Chinese 
Taipei's first written submission, para. 488. 
1606 United States' first written submission, para. 148. 
1607 Panel Report on EC - Selected Customs Matters , para. 2.40 (citing European Court of Justice 
(Dittmeyer), para. 4). WT/DS375/R 
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  (1) In order to ensure uniform application of the Combined Nomenclature … it is 
necessary to adopt measures concerning the classification of the goods referred to 
in the Annex to this Regulation. 
 
(…)  (3) ... the goods described in column 1 of the table set out in the Annex to this 
Regulation should be classified under the CN codes indicated in column 2, by 
virtue of the reasons set out in column 3 of that table. 
 (…)  (5) The measures provided for in this Regula tion are in accordance with the opinion 
of the Customs Code Committee." 
 
7.1223  Article 1 of Commission Regulation No. 400/2006 states: 
"Article 1 
The goods described in column 1 of the tabl e set out in the Annex shall be classified 
within the Combined Nomenclature under the CN codes indicated in column 2 of that 
table." 
7.1224  The Annex to Commission Regulation No. 400/2006,  cited in its preamble and Article 1, 
deals with four different products and contains fo r each of them one column (1), where they are 
described, a second column (2), wher e their respective classification within the CN is indicated, and a 
third column (3), where the reason for such classification is provided.  The fourth product listed in this 
Annex is a certain "multifunctional apparatus."  The A nnex contains the following with respect to this 
product: 
 
(...) 
 
  WT/DS375/R 
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(i) Arguments of the Parties 
7.1225  The complainants  also identify Commission Regulation No. 400/2006 as a measure at issue.  
In 2006, they argue, the European Communities adopted Commission Regulation No. 400/2006 which 
classifies multifunction printers, having scanning, laser printing, and laser copying (indirect process) capabilities up to 40 A4 pages per minute under dutiable CN code 9009 12 as photocopiers.
1608  
According to Japan , Commission Regulation No. 400/2006 r eaffirmed the European Communities' 
page per minute approach, "largely dismissing the importance of digital connectivity in understanding 
these products".1609  According to Chinese Taipei , Commission Regulation No. 400/2006 classifies 
all MFMs without a fax function as photocopiers under  CN code 9009 12 00 on the basis of GIR 3(c) 
because "the apparatus has several functions none of which are considered to give the product its 
essential character".1610 
7.1226  As noted above, in paragraph 7.1152, the European Communities argues that this measure is 
no longer effectively applicable.  Therefore, the European Communities has not provided any 
substantive discussion of the effects of the measure. 
(ii) Consideration by the Panel 
7.1227  We note that the European Communities does not  contest that the Annex to Commission 
Regulation No. 400/2006 states that a device capable of scanning, laser printing, laser copying (indirect process) which has several paper feed tray s and is capable of reproducing up to 40 A4 pages 
per minute should be classifiable in dutiable CN code  9009 12 00 by virtue of the application of GIR 
3(c).  Nor does the European Communities contest that Article 1 of Commission Regulation No. 400/2006 states that  "the goods described in column 1 of the table set out in the Annex shall  be 
classified within the Combined No menclature under the CN codes indicated in column 2 of that 
table." (emphasis added). 
7.1228  Therefore, the undisputed meaning of Commission Regulation No. 400/2006 is that: (1) a 
multifunctional machine as described in item 4 of the Annex shall be classified under subheading 
9009 12 00, which sets a duty rate of 6 per cent. 
(d) The CN2007 codes 8443 31 10; 8443 31 91 and 8443 31 99 
7.1229  On 31 October 2006, the European Co mmunities enacted Commission Regulation 
No. 1549/2006 amending the CN to reflect the subs tantive revisions of the HS agreed by the WCO 
participants that resulted from the introduction of  the HS2007.  Among these changes in the HS, new 
subheadings were created to include certain multif unctional machines, in particular "machines which 
perform two or more of the functions of printing,  copying or facsimile transmission, capable of 
connecting to an automatic data-processing mach ine or network."  In connection with the 
implementation of these particular HS codes, the 2006 amendment of the CN, which entered into 
force on 1 January 2007 (and became the "CN2007" ), contained the following relevant headings, 
subheadings and codes and corres ponding product descriptions at th e four- and six-digit levels 
(HS-based) and at the eight-digit level (CN-specific): 
                                                     
 
1608 United States' first written submission, para. 79 (Exhibit US-61); Japan's first written submission, 
para. 41 (Exhibit JPN-5); Chinese Taipei's firs t written submission, para. 112 (Exhibit TPKM-36). 
1609 Japan's first written submission, para. 58. 
1610 Chinese Taipei's first written submission, paras. 489 and 508. WT/DS375/R 
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Page 360 
  
   
CN code Description Conventional 
rate of duty (%) Supplementary 
unit 
1 2 3 4 
8443 Printing machinery used for printing by means of plates, 
cylinders and other printing components of heading 8442; other 
printers, copying machines and facsimile machines, whether or 
not combined; parts and accessories thereof:   
  
(...)   
  
- Other printers, copying machines and facsimile machines, 
whether or not combined 
   
8443 31 - - Machines which perform two or more of the functions of 
printing, copying or facsimile transmission, capable of 
connecting to an automatic da ta-processing machine or to a 
network:   
8443 31 10 - - - Machines performing the functions of copying and facsimile 
transmission, whether or not with a printing function, with a 
copying speed not exceeding 12 monochrome pages per minute Free 
 p/st 
 - - - Other   
8443 31 91 - - - - Machines performing a copying function by scanning the 
original and printing the copies by means of an electrostatic print 
engine 6 p/st 
8443 31 99 - - - - Other 
 Free p/st 
8443 32 - - Other, capable of connecti ng to an automatic data-processing 
machine or to a network:   
8443 32 10 - - - Printers Free p/st 
8443 32 30 - - - Facsimile machines Free p/st 
 - - - Other   
8443 32 91 - - - - Machines performing a copying function by scanning the 
original and printing the copies by means of an electrostatic print 
engine 6 p/st 
8443 32 93 - - - - Other machines performing a copying function 
incorporating an optical system Free p/st 
8443 32 99 - - - - Other 
 2.2 - 
8443 39 - - Other   
8443 39 10 - - - Machines performing a copying function by scanning the 
original and printing the copies by means of an electrostatic print 
engine 6 p/st 
 - - - Other copying machines   
8443 39 31 - - - - Incorporating an optic system Free p/st 
8443 39 39 - - - - Other 3 - 
8443 39 90 - - - Other 2.2 - 
 
(i) Arguments of the Parties 
7.1230  The complainants  argue that as a result of the eight-digit CN2007 codes 8443 31 10,  
8443 31 91 and 8443 31 99, the products at issue are classified under the dutiable CN code 8443 31 91, which provides for the application of a 6 per cent ad valorem duty.    WT/DS375/R 
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  7.1231  While the complainants acknowledge that some MFMs, those with a copying and facsimile 
function with a copying speed not exceeding 12 monochrome pages per minute, are given duty free 
treatment, others are improperly subjected to the 6 per cent duty.
1611  Specifically, the complainants 
argue that the CN2007 provides that MFMs with copying and computer printing functions, but 
without a facsimile transmission function, are always subject  to 6 per cent duty when using an electrostatic print engine regardless of copy speed.  The complainants also allege that, pursuant to the 
new CN, MFMs with a facsimile function that have  copying speeds of more than 12 monochrome 
pages per minute and with an electrostatic print e ngine are also always subject to a 6 per cent duty.
 1612   
7.1232  Chinese Taipei  summarizes the tariff treatment provided to MFMs incorporating an 
electrostatic print engine as follows;  
(a) MFMs that perform a fax function are subject to 6 per cent customs duties if they are 
able to copy more than 12 ppm;   
(b) MFMs that perform a fax function are treated  as duty-free if they are able to copy 
12 or less ppm;  and  
(c) all MFMs that do not incorporate a fax function are subject to 6 per cent duty 
irrespective of their copy speed.1613 
7.1233  Chinese Taipei finds support for the complainants' understanding of the effect of the various 
subcategories in CN heading 8443 in the cons olidated version of the CNEN to the CN20081614.  
According to Chinese Taipei the CNEN 2008 clarifie s that, in relation to CN2007 code 8443 31 91:  
"the scanning process can be performed by a digital or optical system.  An 
electrostatic print engine operates in the sa me way as an electrostatic printer.  The 
machines of this CN subheading will perform a fax or printing function in addition to 
the copying function.  A machine that prints copies by inkjet or thermal print engines will be classified under CN subheading 8443.31.99".
1615 
7.1234  The European Communities  does not seem to disagree with the complainants' view of the 
tariff treatment that results from the application of the sub-categories in CN2007 subheading 8443 31.  
The European Communities explains that all the mach ines that are connectable to an ADP system or 
                                                      
1611 Chinese Taipei's first written submission, para. 510. 
1612 United States' first written submission, paras. 80, 81, 83 and 165 (submitting the following BTIs as 
examples of the application of thes e CN2007 criteria to MFMs:  IE-07NT-14-136-2 (15 November 2007);  IE-
07NT-14-136-1 (Ireland, 15 November 2007);  FR-E4-2007-002262-R (France, 31 January 2007);  
GB116669062 (UK, 19July 2007);  GB116669160 (UK, 19July 2007);  GB116669258 (UK, 19 July 2007); and 
IE-07NT-14-1684-02 (Ireland, 20 January 2009), (Exhib it US-62).  See also the United States' second written 
submission, paras. 7, 103, 105-107, 109;  the United States' second opening statement, para. 36;  the United 
States' responses to Panel question Nos. 22 and 27; Japan's first written submission, para. 34.   
1613 Chinese Taipei's first written submi ssion, paras. 118, 120-121, 509-512. 
1614 As noted above in Section VII.E.1(b), the panels terms of reference include the amendments to 
Council Regulation No. 2658/87, including the CN2008 which is substantively the same as the CN2007.  We 
note that the CNEN 2008 provides some understanding as to how the CN2008 is implemented. 
1615 Chinese Taipei's first written submission, pa ras. 514-515 citing CNEN 2008/C 133/01 (30 
May 2008 (Exhibit TPKM-23). WT/DS375/R 
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  to a network and that can perform two or more of  the functions of copying, printing or facsimile 
transmission are classifiable under one of these three eight-digit CN2007 codes.
1616   
7.1235  Elaborating on the meaning of these three spec ific codes, the European Communities submits 
that CN2007 code 8443 31 91, the only dutiable code  among them, covers machines that: (i) perform 
the function of copying and, in addition, the functions  of printing and/or of faxing; (ii) are connectable 
to an ADP machine or a network; (iii) use an electro static print engine; (iv) if they perform a faxing 
function, their copying speed exceeds 12 ppm.1617   
7.1236  The European Communities furt her claims that, on the other hand, CN2007 code 8443 31 91 
does not cover MFMs: (i) that do not use an electrostatic print engine (including e.g. MFMs using an 
"inkjet printer"); (ii) that use an electrostatic pr int engine, and with at least a copying and a faxing 
function, but with a copying speed not exceeding 12 ppm,; and (iii) that use an electrostatic print 
engine and with printing and fa xing functions, but without a copying function. Additionally, the 
European Communities asserts that CN2007 code 84 43 31 91 does not cover  single-function copying 
machines, which may be covered by other eight-d igit break outs in subheading 8443 31, depending on 
whether they are connectable to an  ADP machine or a network, the type of print engine and whether 
they incorporate an optical system. Finally, th e European Communities submits that CN2007 code 
8443 31 91 does not cover single-func tion facsimile transmission.   
(ii) Consideration by the Panel 
7.1237  The Panel  recalls that the complainants' referen ced three CN2007 codes that are eight-digit 
break outs of HS2007 subheading 8443 31, which sets forth the duty treatment for certain 
multifunctional machines that perform "two or more of  the functions of printing, copying or facsimile 
transmission, capable of connecting to an ADP machine or to a network."1618  Of the three codes, 
8443 31 10, 8443 31 91 and 8443 31 99, the complainants have a lleged that classifying certain MFMs 
in 8443 31 91 results in the application of a 6 per cent ad valorem  duty rate to products which they 
argue are covered by the European Communities' dut y-free tariff concessions made in the context of 
the ITA.  Therefore, according to the complainants , the European Communities' is applying duties in a 
manner inconsistent with its obligations in Articles II:1(a) and II:1(b).  Our first task, then, is to 
                                                      
1616 European Communities' first written submission, para. 343;  European Communities' response to 
Panel question No. 126(a). 
1617 The European Communities' response to Panel question No. 38, submitting, as examples of devices 
captured by CN2007 code 8443 31 91, a brochure of the Xerox's model WorkCentre M20/M20i , an ADP MFM 
with printing, copying, scanning and faxing functions and "output" speed of 22 ppm (Exhibit EC-63) and the 
brochures of Panasonic's model DP-4510  and Ricoh's model MP 3500 , both ADP MFMs with printing, copying, 
scanning and faxing functions, and with copy/printing speeds of 45 ppm and 35/45 ppm, respectively (Exhibit EC-82)  The United States and Chinese Taipei agree with the European Communities' explanation of the 
dutiable coverage of CN2007 code 8443 31 91 and also that the examples it submits would indeed be captured 
by this CN code (the United States' and Chinese Taipei 's respective responses to Panel question No. 124).  The 
United States adds, however, that in this dispute it is "not challenging how the EC classifies the products in 
question in its domestic nomenclature, but rather the dut y treatment it accords to those products and whether the 
duty treatment is consistent with that provided in the EC's Schedule of Concessions." (the United States' response to Panel question No. 124). 
1618 As to the use of the term "network" in the product description of CN2007 code 8443 31, we note 
that the parties do not dispute that it also includes connection over the "phone line" as well as "wireless" 
connection (see the complainants' responses to Panel que stion Nos. 25(a) and 25(b)).  We understand this to 
mean that CN2007 codes 8443 31 10,  8443 31 91 and 8443 31 99 capture non-ADP MFMs to the extent they 
mean apparatus that do not connect to an ADP machine, but instead co nnect to a "phone line".  We also 
understand that the term "network", as used in CN2007 code 8443 31, is broader than "phone line" and could 
also mean, e.g. "computer or digital network" so as to also capture ADP MFMs.  WT/DS375/R 
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  determine whether the CN2007, in particular code 8443 31 91, results in the application of a 6 per 
cent ad valorem  duty to the products in question.   
7.1238  Based on the evidence and submissions before us, we see no disagreement among the parties 
to this dispute that the following products are classified under code 8443 31 91 and are therefore 
subject to a 6 per cent ad valorem tariff:   
(a) ADP MFMs that have an electrostatic print engine  and can print , copy  and fax with a 
copying speed exceeding 12 monochrome pages per minute ("ppm"); 
(b) ADP MFMs that have an electrostatic print engine and can print and copy, but do not 
have a fax transmission function; 
(c) non-ADP MFMs that have an electrostatic print engine  and can copy  and fax with a 
copying speed exceeding 12 monochrome ppm . 
7.1239  Additionally, we see no disagreement am ong the parties that, under the CN2007 the dutiable  
CN2007 code 8443 31 91 does not
 apply to: 
(a) ADP MFMs that have an electrostatic print engine  but do not have a copying  
function, which may instead be covered by the duty-free CN2007 code 8443 31 99; 
(b) ADP MFMs that can print , copy  and/or fax, but do not have an electrostatic print 
engine  (e.g. those with an "ink jet engine" or "thermal printer"), which may instead be 
covered by the duty-free CN2007 code 8443 31 99; and 
(c) ADP MFMs that have an electrostatic print engine  and can print , copy  and fax, with a 
copying speed of 12 ppm or less, which may instead be covered by the duty-free 
CN 2007 code 8443 31 10. 
(d) non-ADP MFMs that have an electrostatic print engine  and can copy  and fax are 
subject to 0 per cent customs duty if they have a copy speed of 12 ppm or less, which 
may instead be covered by the duty-free CN 2007 code 8443 31 10. 
(e) non-ADP MFMs that can copy  and fax, but do not have an electrostatic print engine  
(e.g. those with an "ink jet engine" or "thermal printer"), which may instead be covered by the duty-free CN2007 code 8443 31 99. 
7.1240  As noted in paragraph 7.1138 the complainants  allege that the above-referenced measures 
result in the improper application of a 6 per cent ad valorem  duty to two subsets of multifunction 
digital machines, ADP MFMs and non-ADP MFMs  which are, according to the complainants, 
covered by the duty-free concessions in the EC Sche dule under headings 8471 a nd 8517, respectively.  
As the concession for each of these sub-categories of multifunction digital machines is different, the 
analysis of whether the European Communities is ac tually acting inconsistently with its obligations 
will also, necessarily, be different.  Therefore, we will address the complainants' claims of tariff 
treatment that is excessive and less favourable than that in the EC Schedule separately for each 
concession.  First, we will examine whether the tariff treatment effectuated by the challenged 
measures is inconsistent with the duty-free conce ssion in heading 8471 of the EC Schedule, which the 
complainants allege covers ADP MFMs.  Secondl y, we will examine whet her the tariff treatment 
effectuated by the challenged measures is incons istent with the duty-free concession in 8517, which 
the complainants allege covers non-ADP MFMs. WT/DS375/R 
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  3. Whether the European Communities' tariff trea tment of ADP MFMs is consistent with 
its obligations under Article II of the GATT 1994 
7.1241  The European Communities made duty-free conc essions on certain information technology 
products as part of the its implementation of the IT A, which were incorporated in the EC Schedule 
which is based on the HS1996 nomenclature.  The comp laint with respect to the tariff treatment of 
ADP MFMs relates to one such concession embodied in the EC Schedule at subheading 8471 60.  The 
complainants argue that by not affording duty-free tr eatment to products which are within the scope of 
this tariff concession, the European Communities is acting inconsistently with its obligations under 
Article II of the GATT 1994, which requires that Members not treat products coming from another 
Member less favourably than in their schedules or to charge duties in excess of the bound rates set 
forth in said Schedule.    
7.1242  Therefore, as noted above, we begin our analys is of the complainants' claim by determining 
the scope of the relevant concession, subheadin g 8471 60, and whether that scope includes the 
products described by the complainants' as ADP MFMs .  If the relevant products are covered within 
the scope of the tariff concession, we will then examine whether the tariff treatment effectuated by the application of the challenged measures results in  the European Communities acting in breach of its 
obligations in Article II of the GATT 1994. 
(a) The ordinary meaning CN 8471 60 of the EC Schedule 
7.1243  The complainants  submit that ADP MFMs are covered by the duty-free concession in 
subheading 8471 60 in the EC Schedule ("Automatic  data-processing machines and units thereof";  
- Input or output units, whether or not containing storage units in the same housing").
1619  Within the 
terms of this concession, they indicate that the term s "input or output units" are key to the ordinary 
meaning analysis under the Vienna Convention.1620 
7.1244  Japan  and Chinese Taipei  further submit that ADP MFMs also fall more precisely under the 
eight-digit concession in the EC Schedule in tariff item number 8471 60 40 ("- - Other;" 
- - - Printers").1621  Furthermore, Chinese Taipei claims that these products, if not covered by tariff 
item number 8471 60 40 as "printers," are at least covered by the residual eight-digit concession in 
tariff item number 8471 60 90 ("- - Other;" - - - Other").1622   
                                                      
1619 The following third parties also take this view : Singapore (see Singapore's third party submission, 
para. 81; Singapore's oral statement, para. 35); The Philippines (The Philippines' third party submission, para. 50); Costa Rica (Costa Rica's third party submission, para. 28); Thailand (Thailand's oral statement, paras. 
3-4). 
1620 United States' first oral statement, para. 36;  Japan's first written submission, paras. 79 and 181 
(contending that ADP MFMS are, more specifically, "out put units");  Chinese Taipei's first written submission, 
paras. 544-545.  Japan also deals with the meaning of the terms "units thereof" in HS1996 heading 8471 in the 
EC Schedule under its analysis of the ordinary meaning of the concession that cove r ADP MFMs (Japan's first 
written submission, para. 79).   
1621 See, e.g., Japan's first written submission, paras.  78-79;  Japan's second written submission, para. 
38; Chinese Taipei's first written submission, paras. 528, 546 and 553; Chinese Taipei's second written 
submission, para. 332. 
1622 Chinese Taipei's first written submission, paras. 528 and 557.  WT/DS375/R 
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  7.1245  The relevant concession, subheading 8471 60 in the EC Schedule
1623, is summarized below.  
HS96 Description Base 
rate Bound 
rate Year of 
full 
impleme
ntation Other 
duties 
and 
charges Legal 
instrument 
where the 
concession is 
reflected 
8471 Automatic data-processing machines 
and units thereof; magnetic or 
optical readers, machines for 
transcribing data onto data media in 
coded form and machines for 
processing such data, not elsewhere 
specified or included:      
     (…)  
8471 60 - Input or output units, whether or 
not containing storage units in the 
same housing      
8471 60 10    - - For use in civil aircraft 0.0 0.0 1997 0.0 WT/Let/156 
    - - Other      
8471 60 40        - - - Printers 2 0.0 1999 0.0 WT/Let/156 
8471 60 50        - - - Keyboards 2 0.0 1999 0.0 WT/Let/156 
8471 60 90        - - - Other 2 0.0 1999 0.0 WT/Let/156 
     (…)  
8471 90 00 - Other 2 0.0 1999 0.0 WT/Let/156 
 
7.1246  We recall that the ITA provided for duty-free treatment of all products falling under HS1996 
heading 8471 (i.e. including all its subheadings).  We recall furt her that the European Communities 
implemented this obligation by incorporating into  its schedule all the relevant subheadings under 
heading 8471, for which subheading 8471 60 is furthe r subdivided in four eight-digit level tariff item 
numbers, which reflect the tariff treatment for products falling under subheading 8471 60.  In order to 
determine the ordinary meaning of subheading 8471 60 in the EC Schedule, pursuant to Article 31 of 
the Vienna Convention, we will examine the text of the concession in its context and in light of its 
object and purpose.   
(i) The meaning of the text of subheading 8471 60 
Arguments of the parties  
7.1247  The complainants  argue that the ordinary meaning of the language of the concession at both 
the four digit and six digit level is dispositive a nd "focuses on whether a particular good can connect 
to a computer or not – whether it is a "unit" of a computer – and whether that good can thus serve as 
an "input or output unit" for a computer."1624  Japan and Chinese Taipei al so argue that the ordinary 
meaning of the term "printers" as used in ta riff item number 8471 60 40 is also relevant to 
understanding the scope of the European Commun ities' duty-free concession and whether the products 
at issue are covered by the concession.1625 
                                                      
1623 We note that the description in the heading 8471 and the subheading 8471 60 of the EC Schedule 
are identical to those in HS1996 heading 8471 and subheading 8471 60 and that sometimes the parties refer to the HS1996 and the EC Schedule interchangeably.  Despite these references, we are always mindful that the 
obligation being interpreted is that in the EC Schedule. 
1624 United States' first written submission, paras. 110 and 94; Japan's first written submission, para. 78. 
1625 United States' first written submission, para. 153 and Exhibits US-82-83; Japan's first written 
submission, para. 78; Chinese Taipei's first written subm ission, at paras. 546-553.  We note that the United WT/DS375/R 
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  Input or output units  
7.1248  The complainants first define the terms "input" and "output" in the "technological sense".
1626   
In particular Japan  notes that in computer science an "output unit" is defined as "a unit which delivers 
information from the computer to an external devi ce or from internal storage to external storage."1627  
Japan also notes that an "input" is defined as "the information that is delivered to a data-processing 
device from the external world, the process of deliveri ng this data, or the equipment that performs this 
process."1628 
7.1249  The complainants also look at the use of the te rms "input" and "output" together in a single 
phrase.  In particular, the complainants note that an "input/output device" has been defined as "a unit 
that accepts new data, sends it into the computer for processing, receives the results, and translates 
them into a useable medium."1629 
7.1250  The complainants find support for their interpre tation of the terms of the concession not only 
from technical dictionaries, but from more general di ctionaries as well, which define "output" as "an 
electrical signal delivered by or available from an  electronic device" while defining "input" as the 
converse, namely "an electrical signal entering an electronic device."1630   
7.1251  The complainants argue that a "unit" should properly be understood as "an individual thing, 
person, or group regarded as single and complete" or "a device with a specified function forming part 
of a complex mechanism."1631  Relying on this broad understanding of the term unit, the complainants 
argue that "units thereof" in the heading 8471, of which the concession at issue is a subheading, 
covers "devices designed and engineered to be connect ed to and used in an integrated fashion with 
computers."1632 
7.1252  Chinese Taipei  follows Japan's logic and concludes that  the phrase "units thereof" in HS1996 
heading 8471 indicates that the "units" referred to in the phrase "input or output units" in HS1996 
subheading 8471 60 are those of "automatic da ta-processing machines."  According to Chinese 
Taipei, this means that under the EC Schedule "any" kind of ADP machine is covered by HS1996 
heading 8471 and, as a conseque nce, merits duty-free treatment.1633 
                                                                                                                                                                     
States does not argue that the products at issue fall more  specifically within the 8 digit break-outs for "printers" 
and "other" under the subheading of 8471 60. 
1626 Japan's first written submission, para. 80 (arguing that it is appropriate to look at technical 
dictionaries, even though it does not believe the terms have a "special meaning" under Article 31(4) of the 
Vienna Convention , because the concessions at issue were made in  pursuance of an agreement (the ITA) dealing 
with technological products.)   
1627 United States' first written submission, para. 153 and Exhibit US-82; Japan's first written 
submission, para. 81 (citing  McGraw Hill Dictionary , at p. 1419 (Exhibit JPN-11)). 
1628 Japan's first written submission, para. 82 (citing  McGraw Hill Dictionary , at p. 1021). 
1629 Echibit US-101; Japan's first written submission, para. 83 (citing McGraw Hill Dictionary , at 
p. 1021). 
1630 Japan's first written submission, paras. 86-87 (citing Shorter Oxford Dictionary (1993) , at pp. 2040, 
1375 (Exhibit JPN-11)). 
1631 Japan's first written submission, para. 86 (citing Shorter Oxford Dictionary (1993) , at p. 3491). 
1632 Japan's first written submission, para. 86. 
1633 Chinese Taipei's first written submission, paras. 535 and 556.  The United States, more generally, 
argues that "the terms of the heading 84.71 ... provide  strong contextual suppor t for the conclusion that 
[ADP MFMs] are included within the scope of the EC's tariff concession for 'input or output units.'" 
(United States' first written submission, para. 155).  WT/DS375/R 
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  7.1253  Japan claims that "input/output units" are also  known as "peripheral devices," which are "any 
device connected internally or externally to a comput er and used to enter or display data, such as the 
keyboard, mouse, monitor, scanner, and printer."
1634 Japan cites the following definition of 
"input/output instruction" to support its assertion that  "input/output units" and "peripheral devices" are 
synonymous:1635 
"... [S]uch an instruction 'causes the transfer of data between peripheral devices and 
main memory, and enables th e central processing unit [i.e ., in the computer] to 
control the peripheral devices connected to it.'"1636 
7.1254  The complainants submit that "input or output units" are terms that are very broadly defined 
in the EC Schedule.1637 They claim that the above definitions indicate that the ordinary meaning of 
these terms focuses on the manner in which these "units " interact with an automatic data-processing 
machine in the sense that they are able to accept new data, send it to into the computer for processing, 
receive the results, and translate them into a u seable medium. Thus, according to the complainants, 
the two key concepts underlying these specific terms ar e the ability to use digital data and computer 
connectivity.1638   
7.1255  The European Communities , rather than disputing the plain meaning of the terms in the text 
of the concession, focuses its arguments instead on the contextual interpretation of CN subheading 
8471 60.1639 In particular, the European Communities consid ers that the concession at issue should be 
interpreted in light of the scope of another con cession under the EC Schedule, i.e. that of HS1996 
subheading 9009 12 ("indirect process elect rostatic photocopying apparatus").1640   
7.1256  However, the European Communities does disag ree with Japan's claim that "input/output 
devices" and "peripheral devices" are synonymous because the latter is broader than the former.  
According to the European Communities, "input or output devices" are not necessarily "separate 
units" since they can also be incorporat ed in the central processing unit (CPU).1641  In the European 
Communities' view, that "input/output devices" and "peripheral devices" are not synonymous, is 
                                                      
1634 Japan's first written submission, para. 83 (citing McGraw Hill Dictionary (2003) ).  Japan explains 
that in this dispute it has mostly relied on the 1994, fifth edition of McGraw Hill Dictionary  because this is the 
edition that was available both during the time in which the ITA was negotiated and the time when the HS was 
revised to later become the HS1996.  We note, however, that in a few instances, like in the case of "peripheral 
devices," defined above, Japan has also relied on the 2003 edition of McGraw Hill Dictionary.  
1635 We also note that the United States on some occas ions uses the terms "input or output units" and 
"peripherals" as synonyms (see, e.g. United States' fi rst written submission, paras. 72, 145;  second written 
submission, para. 102). 
1636 Japan's first written submission, para. 83, fn. 53 (citing McGraw Hill Dictionary (1994) ). 
1637 Japan also adds that these terms are in no wa y "limited by specific technologies." (Japan's second 
written submission, para. 81;  Japan's first oral statement, paras. 13 and 33). 
1638 United States' first written submission, para. 153 (citing the McGraw Hill Dictionary );  United 
States' second oral statement, para. 109;  Japan's first written submission, paras. 77, 87-88 and 90;  Japan's first 
oral statement, para. 11 (but also further indicating that the predominant printing function of ADP MFMs 
indicates that they fall under the ordinary meaning of "o utput units – printers");  Chinese Taipei's first written 
submission, paras. 543-545, 585.  Japan more explicitly claims that these concessions cover all MFMs "with a 
digital connectivity", i.e. ADP MFMs. (Japan's first written submission, paras. 77, and 90;  Japan's second 
written submission, para. 39;  Japan's response to Panel question No. 110). 
1639 European Communities' second written submission, paras. 125-126. 
1640 The Panel will address the European Communities'  contention that duty-free treatment is not owed 
because the products fall within the dutiable concession for HS1996 heading 90 09 12 (see section VII.G.3(c)(ii) 
below, starting at para. 7.1469) or 8472 90 (see sec tion VII.G.3(c)(iii) below, starting at para. 7.1482). 
1641 European Communities' response to Panel question No. 32. WT/DS375/R 
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  further confirmed by the fact that in the EC Schedule, concessions other than that in HS1996 
subheadings 8471 60 ("input or output units") incl ude products that could also be considered 
"peripheral units" (e.g., the concession in tari ff item number 8471 80 10, which includes " -- 
Peripheral units").
1642 
7.1257  The complainants respond that the European  Communities has not explained why a key 
phrase such as "output units", which ordinarily h as a broad meaning, should be read as narrowly as 
proposed by the European Communities.  They cons ider that, instead of engaging in the ordinary 
meaning discussion of these terms under the Vienna  Convention, the European Communities focuses 
its defence exclusively on the meaning of certain terms related to the concessions it made for certain 
"photocopiers", in particular those in HS1996 subheading 9009 12.1643 
Printers 
7.1258  As noted above, Japan and Chinese Taipei have  argued that the eight digit break-out of 
subheading 8471 60 (tariff item number 8471 60 40 – Ot her -- Printers) which covers "printers" also 
covers the products at issue within its scope.1644  Japan and Chinese Taipei  have submitted various 
definitions of "printers."   
(a) "[A] computer output mechanism that prints characters one at the time or one line at 
the time"   
(b) [A device] that can "produce or reproduce (t ext, a picture, etc.) by mechanically 
transferring characters or designs to paper, vellum, etc. esp[ecially] from inked types, 
blocks, or plates" or "an output device which produces a printed record of data, text, 
etc." 1645   
(c) "[A]n output device which produces a pr inted record of data, text, etc."1646  " b .  a  
device used for printing;  especially a machine for printing from photographic negatives; c.  a device (as an ink-jet printer) that produces printout."
 1647 
7.1259  Japan  submits that the above definitions indicate that a "printer", from a technological sense, 
means an automatic data-processing machine's "output unit" that produces a printed copy or copies of 
                                                      
1642 European Communities' response to Panel question No. 32. 
1643 United States' first oral statement, paras. 9 and 36 ;  United States' first closing statement, para. 4; 
United States' second written submission, para. 108;  United St ates' second oral statement,  para. 38;  Japan's first 
oral statement, para. 13;  Japan's second written submission, paras. 36-37 and 81-82;  Chinese Taipei's second 
written submission, para. 298. 
1644 We are aware that the joint Panel request refers only to subheading 8471 60 as the concession at 
issue in this dispute.  However, we recall that Article 3(1)(a) of the HS Convention provides that the contracting 
parties must follow the HS nomenclature down to the six- digit level and Article 3(3) allows contracting parties 
the flexibility to establish eight-digit codes provided that any subdivision is added and coded at the level beyond 
that of the six-digit numerical code[s] of the HS.  In our view this means that any eight-digit CN code merely 
sets forth an additional subdivision of what is covered by the six-digit subheading.  Therefore, anything at the eight-digit level must necessarily be incl uded within the scope of the subheadi ng at the six-digit level, in this 
case 8471 60.  Therefore, we see noth ing inappropriate with Japan and Chin ese Taipei arguing that the products 
at issue fall within a more specific subset of products cove red by the concession raised in the joint Panel request.   
1645 Exhibit JPN-11. 
1646 Japan's first written submission, para. 89 (Exh ibit JPN-11); Chinese Taipei's first written 
submission, para. 547, fn. 268. 
1647 Chinese Taipei's first written submission, para. 548, fn. 269 (citing Merriam-Webster Dictionary 
available at  < http://www.merriam-webster.com/dictionary/p rinter > last viewed on 15 May 2010).  WT/DS375/R 
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  the "digital data" at issue.  This "digital data " might come from the "computer" itself, from a" 
scanner" that has created "digital data" from an or iginal document, or a "facsimile" that has received 
digital data.  In all instances, claims Japan, the "p rinter" will produce a paper version of that "digital 
data" using digital technologies.  Japan similarl y submits that, from an ordinary sense, the above 
definitions indicate that a "printer" is a "computer  output mechanism" that produces a paper version of 
some data stored on or otherwise being used in connection with an automatic data-processing 
system.
1648 
7.1260  Additionally, Chinese Taipei  argues that the definition of "printer" in no way requires the 
information or data that are printed to come "e xclusively" from an "ADP machine".  According to 
Chinese Taipei, there are two requirements for an apparatus to be covered by the terms of the 
duty-free concession under tariff item number 8471 60 40:  (i) it must "be able to connect" to an ADP machine and (ii) it must be "capable of  producing printouts of data" received from an 
ADP machine.  Chinese Taipei further notes that the "maximum or minimum number of pages" 
produced by an apparatus is not part of any of the above definitions of "printer".
1649 
7.1261  The European Communities  does not engage in a discussion of the definition of the term 
"printer"; however, it does contend that a product (i .e., a MFM) that also performs other functions, in 
addition to printing, which may be of equivalent  or even higher importance, cannot be a mere 
printer.1650 
Consideration by the Panel  
7.1262  The Panel  notes that, in their arguments about the meaning and scope of the concession at 
issue, the complainants have relied on various dict ionary definitions of the relevant terms of the 
concession.  The Panel also notes that the complainants  have cited to technical  dictionaries in addition 
to more general dictionaries of the English language .  Given the terms involved, we think this is 
appropriate.1651   
7.1263  Before we start our analysis of the specifi c terms used in the concession based on these 
dictionary definitions, we recall the Appellate Body 's statement that, while dictionaries are a "useful 
starting point" for the analysis of "ordinary mean ing" of a treaty term they "are not necessarily 
dispositive".1652  We are also aware that understanding the plain meaning of the text is the beginning 
                                                      
1648 Japan's first written submission, paras. 84 and 89. 
1649 Chinese Taipei's first written submission, paras. 549-550.  Singapore supports Chinese Taipei's 
view and similarly argues that "the definition of a 'printer' does not hinge upon the pages per minute that such a 
machine can produce." (Singapore's third party submission, para. 100, fn. 92). 
1650 European Communities' first written submission, para. 421. 
1651 Other panels have also examined technical dictionaries when conducting an ordinary meaning 
analysis pursuant to Article 31 of the Vienna Convention.  See e.g., the Panel Report on Mexico – Telecoms , 
paras. 7.81-7.83 (using the Newton's Telecom Dictionary to interpret certain terms from Mexico's Services 
Schedule);  Panel Report on China – Auto Parts , paras. 7.660-7-661 (using the Dictionary of Automobile 
Engineering, an automobile industry dictionary, to interpret China's Schedule);  Panel Report on 
EC - Approval and Marketing of Biotech Products , para. 7.372 (using the Glossary of Biotechnology for Food 
and Agriculture, a biotech industry dictionary, to define the word "biodiversity");  See also  the Appellate Body 
Report on EC – Poultry , para. 92 (citing the Dictionary of Trade Policy Terms and the Dictionary of 
International Trade). 
1652 The Appellate Body Report on EC – Chicken Cuts , para. 175 (citing the Appellate Body Reports 
on:  US - Softwood Lumber IV , para. 59;  US - Offset Act  (Byrd Amendment) , para. 248; and US - Gambling , 
para. 166).  See also the Appellate Body Reports on:  China - Publications and Audiovisual Products , para. 348; 
and India - Additional Import Duties , para. 167, footnote 324. WT/DS375/R 
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  of our inquiry and not the end.  While we may or ganize our analysis of the ordinary meaning in 
different sections, for convenien ce sake, we remain cognisant that  we are conducting an holistic 
analysis of the ordinary meaning and that the text  of the terms cannot be divorced from their context 
and their object and purpose.
 1653 
7.1264   As noted above the main terms that have been raised by the complainants have been "input or 
output units" and "printers."  We  will address each phrase in turn. 
Input or output units  
7.1265  The complainants provided a number of defin itions of "input" and "output" in isolation as 
well as used together.  All of these definitions  support the understanding that "input" and "output" 
refer to electrical signals, data, or information.  An  "input" is the electrical signal, data, or information 
entering an electronic device, while an "output" is the electrical signal, data, or information leaving 
the electronic device. 
7.1266  The concession in subheading 8471 60 of heading 8471 does not cover the inputs or outputs 
themselves, but "input or output units.  A "unit", means inter alia  "a device with a specified function 
forming part of a complex mechanism."  Such definitions indicate to us that the meaning of "input or output units" cannot be dissociated from the question of what is the function or functions performed 
by such units and what complex mechanism are they a pa rt of.  To that end, we recall that 8471 60 is a 
subheading of 8471 which covers  "automatic data-processing machines" and "units thereof".  
Therefore, the "units" covered by subheading 84 71 60 are "units" of "a utomatic data-processing 
machines".   
7.1267  We note that all parties agree that computers qualify as "automatic data-processing machines" 
as used in HS1996 heading 8471.  We note furthe r that "units" of "an automatic data-processing 
machine" are devices forming part and having at least one specified function in an ADP.   Because the 
"units" in question are "input" or "output" units of ADPs, it logically follows that the functions such 
"units" are required to perform are the sending/ recei ving of electrical signals, information, or data 
from an ADP.   
7.1268  Therefore, we conclude that the plain meani ng of the term "input or output units" in the 
concession, i.e., subheading 8471 60, are devices th at form part of an automatic data-processing 
machine, such as computers, or an automatic da ta-processing system and that perform at least one 
specified function involving sending/receiving signals, information or data from the automatic data-
processing machine.   
7.1269  However, we cannot conclude our analysis with  the plain meaning of the text.  We must 
examine whether reading the term in its context and in light of its object and purpose leads us to change our preliminary understanding of the plain me aning of the term "input or output units" as used 
in subheading 8471 60 in the EC Schedule.    
  
                                                      
1653 In this respect, we recall that the Appellate Body in EC – Chicken Cuts , noted that "Interpretation 
pursuant to the customary rules codified in Article 31 of the Vienna Convention  is ultimately an holistic exercise 
that should not be mechanically subdivided into rigid components." (Appellate Body Report on EC - Chicken Cuts , para. 176). 
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  Printers 
7.1270  As for printers, as noted above, the complainants  have provided dictionary definitions which 
define a "printer" as an output device or mechanis m which prints, on paper, data received from an 
automatic data-processing machine.  As "printers" , in the concession, are a subcategory of the 
subheading covering "input or out put units" of computers, we see no reason to disagree with these 
definitions. 
7.1271  Therefore, the plain meaning of the text of  tariff item number 8471 60 40 would cover within 
its scope output devices which print data on pa per received from an automatic data-processing 
machine.  We note the European Communities argument that the ability to print information received 
from an automatic data-processing machine is not di spositive of whether a particular product is a 
"printer" or might be more properly classified accord ing to some other characteristic.  However, we 
believe this argument is better addressed in secti on VII.G.3(b) below, where we discuss whether the 
products at issue in this dispute fit within the sc ope of the concession in subheading 8471 60, or even 
more specifically within the eight-digit tariff item number 8471 60 40. 
(ii) The terms "input or output units" and "printers" in their context 
7.1272  The complainants  argue that the plain meaning of the terms in subheading 8471 60 are 
unambiguous.
1654  However, they also argue that examini ng the terms of the subheading in the context 
of the rest of heading 8471, the interpretative t ools in the HS; such as th e notes to Chapter 84, and 
other parts of the EC Schedule; will lead to the c onclusion that the scope of heading 8471 60 is broad 
enough to cover "any" kind of ADP machine and, as  a consequence, merit duty-free treatment for 
those products.1655  In addition, Japan and Chinese Taipei  argue that the HS1996 notes to Chapter 84 
and Section XVI also support their interpretation of the term "printers" in tariff item number 
8471 60 40 as including any device which can print output from an automatic data-processing machine.  
7.1273  The European Communities  argues, contrary to the complainants, that Note 5(B) to Chapter 
84 supports its interpretation that  heading 8471 60 does not cover each and every conceivable kind of 
MFM which may be connected to an  automatic data-processing machine.
1656 The European 
Communities also argues that the positions of the comp lainants with respect to the relevant context 
are misplaced.1657 
7.1274  The Panel  will address each of the possible sources of context, in turn. 
The terms of HS1996 heading 8471, other subheadings under it and its overall structure  
Arguments of the parties 
7.1275  The complainants  argue that the duty-free concession in 8471 covers not only parts of the 
heading, but the entire heading.  They believe th is indicates that the duty-free treatment was intended 
                                                      
1654 Japan's first oral statement, paras. 2 and 64;  Japan's second written submission, para. 80. 
1655 Chinese Taipei's first written submission, paras. 535 and 556.  The United States, more generally, 
argues that "the terms of the heading 84.71 ... provide  strong contextual suppor t for the conclusion that 
[ADP MFMs] are included within the scope of the EC's tariff concession for 'input or output units.'" 
(United States' first written submission, para. 155). 
1656 United States' first written submission, para. 155;  European Communities' first written submission, 
paras. 410-422. 
1657 European Communities' first written submission, paras. 423-426. WT/DS375/R 
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  to be offered to all devices that are computer s or are used in conjunction with computers.
1658  This is 
confirmed, argues Japan , by the use of the term "units th ereof" in the heading.  Because the 
subheading in 8471 60 clarifies that "units thereof"  includes "input or output units", the complainants 
believe that the concession broadly covers any devices th at are used either to input information into an 
automatic data-processing machine or to output  information coming from an automatic data-
processing machine.1659 Finally, Japan also claims that the m eaning "units thereof" indicates that the 
language of HS1996 heading 8471 is not limited by the technology used  in the products falling under 
it, which confirms that this heading "is broad e nough to cover products us ing changed technology."1660   
7.1276  The complainants also consider that the overall structure of HS1996 heading 8471, which 
includes several subheadings, confirms the broad scope of the European Communities' concession.1661  
The complainants consider that the terms of th e other subheadings under HS1996 heading 8471, taken 
together, provide strong contextual support for understanding that all types of computers and all types of computer units – separately or in various combinations – fall within heading 8471.
1662   
7.1277  In particular, Japan points out that subheadi ngs 8471 41, 8471 49, 8471 50 deal with products 
which combine an automatic data-processing machine with some other computer related devices.  The 
text of these three headings is: 
(a) 8471 41  ("- Other digital automatic data-pro cessing machines;  - - comprising in the 
same housing at least a central processing un it and an input and output unit, whether 
or not combined") 
(b) 8471 49  ("- Other digital automatic data-processi ng machines;  - - Other, presented in 
the form of systems") 
(c) 8471 50  ("- Digital processing units other than those of subheadings No 8471 41 and 
8471 49, whether or not containing in the same housing one or two of the following types of unit:  storage units, input units, output units")
1663 
7.1278  The rest of the subheading deals with "units " of computers that do not themselves include 
computers.  This next set of subheadings includ es the concession at issue, 8471 60, as well as 8471 70 
and 8471 80, which cover storage units on a sta nd-alone basis and other units of computers, 
respectively.  In addition, the complainants not e that subheading 8471 90 captures other devices that 
would otherwise be included in heading 8471, but  that do not fall within any of the earlier 
subheadings.  Japan notes that even for this broad residual category the EC c oncession codified in its 
schedule is a zero duty rate.1664 
                                                      
1658 United States' first written submission, para. 155; Japan's first written submission, para. 130. 
1659 Japan's first written submission, para. 130. 
1660 Japan's response to Panel question No. 13. 
1661 United States' first written submission, para. 155; Japan's first written submission, para. 131; 
Chinese Taipei's first written submission, paras. 322-330. 
1662 United States' first written submission, para. 155; Japan's first written submission, paras. 132 and 
140-141; Chinese Taipei's first written submission, paras. 322-330. 
1663 Japan's first written submission, paras. 132-136. 
1664 Japan's first written submission, paras. 72, 130-131 and 142-143;  Japan's first oral statement, para. 
21;  Japan's response to Panel question No. 13;  United States' first written submission, paras. 155-156;  United 
States' first opening statement, para. 35;  United States' second written submission, para. 109;  United States' second opening statement, para. 38;  Chinese Taipei's  first written submission, paras. 589, 594 and 600;  
Chinese Taipei's response to Panel question No. 13.  WT/DS375/R 
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  7.1279   The European Communities  argues that the mere presence of an "others" subheading within 
8471 cannot have the effect of expanding the cove rage of that heading beyond its own terms.
1665  In 
the European Communities' view, because the presen t dispute concerns issues with respect to 
concessions based on subheadings belonging to diffe rent HS1996 Chapters (Chapters 84 and 90), "in 
resolving those issues no relevant contextual guida nce can be drawn from the mere fact that HS96 
heading 8471 includes an 'Other' subheading."1666   
7.1280  The European Communities also disputes that the concession in subheading 8471 60 must be 
interpreted in a "broad fashion"  simply because the entire heading 8471 was included in the ITA or 
because the heading covers a wider range of product s than the alternative heading proposed by the 
European Communities, 9009 12.1667  In particular the European Communities cautions against giving 
too much weight to the inclusion of a heading in th e ITA in the interpretation of its terms.  This is 
because these headings also appear  in the schedules of WTO Members who are not ITA participants, 
and also because the object and purpose of security and predictability of tariff concessions cannot be 
achieved if the same tariff concessions are consid ered "broader" for some simply because they are 
also participants in the ITA. 1668   
Consideration by the Panel 
7.1281  We recall that the Appellate Body has confirme d that the HS may provide additional relevant 
context to the interpretation of a given tariff concession.1669  The parties all agree that the 1996 
version of the HS, on which the concession in CN 8471 60 in the EC Schedule is based, is the relevant 
document of the HS to provide context for the ordinary meaning of that concession.1670  The Panel  
finds, therefore, that the other parts of heading 8471 are relevant context for determining the scope of 
the meaning of the terms used in the concession.   
7.1282  In particular, the structure and wording of the heading seem to encompass all types of 
computer units within its parameters.  The structure has the logic of first looking at computers 
themselves (8471 10 and 8471 30)1671 and then moving on to "units" of those computers in the various 
ways they are presented – i.e., as part of an au tomatic data-processing machine, as systems, with 
digital processing units, input or output units, stor age units on a stand-alone basis, and other. In 
particular, we note the residual category of "other".  We agree with the European Communities that the inclusion of an "other" category in a headin g or subheading cannot lead to an interpretation 
beyond its terms.  However, the inclusion of an "o ther" subheading can indicate that the terms of the 
remaining subheadings do not by themselves delineate the limits of the scope of the main heading.   
7.1283  At the same time, our understanding of th e broad nature of the scope of 8471 is not informed 
by the fact that the entire headi ng was included in the duty-free concession in the ITA.  Contrary to 
                                                     
 
1665 European Communities' first written submission, para. 424. 
1666 European Communities' response to Panel question No. 13. 
1667 European Communities' first written submission, para. 424.   
1668 European Communities' first written submission, para. 426. 
1669 Appellate Body Reports on EC – Computer Equipment , para. 89; EC – Chicken Cuts , para. 199 and 
China – Auto Parts , para. 151.  
1670 The parties' responses to Panel question No. 132 (arguing that the HS1996 applied at the time of 
the concession and that the HS2007 and the Explanatory Notes thereto are neither 'context' under Article 31(2) of the Vienna Convention, nor an element 'to be taken into account together with the context', under Article 
31(3) of the Vienna Convention).    
1671 We do note that even within 8471 30 the term "unit" is used to describe the Central Processing Unit 
("CPU") which is the main component of an automatic data-processing machine, therefore it seems that the term 
"unit" can also refer to parts of an automatic data-processing machine.   WT/DS375/R 
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  the complainants' arguments, we do not believe this fact provides any guidance to the effect that terms 
within that heading are to be interpreted broadly.  It could be equally plausible that the entire heading 
was included in the duty-free category because it w as narrowly construed and therefore, duty-free 
treatment would be limited to a small set of products.  That being said, however, our broad 
understanding of the coverage of  heading 8471 is based on the words in the heading itself in 
conjunction with its structure.  On the other hand, our analysis cannot end with an understanding that 
8471 has a broad coverage; indeed the relevant c oncession under consideration is not 8471 generally, 
but rather the specific subheading 8471 60 for input or output units.    
7.1284  Although the context provided by the terms of  8471 and the subheadings within 8471 further 
informs our earlier understanding of the plain meaning of the text of the terms in the concession, our analysis must move on to examine the context provided by the HS rules relating to subheading 8471 60.  
The HS1996 :  Note 5 to Chapter 84 and Note 3 to Section XVI
 
7.1285  The parties have discussed the contextual releva nce of the text of the HS1996 Chapter Note 5 
to Chapter 84 to understanding the scope of the European Communities' concession of duty-free 
treatment for "input or output units" in HS1996 subheading 8471 60.1672  They have also discussed the 
relevance and interplay between Chapter Note  5 and Note 3 to Section XVI of the HS19961673.  The 
complainants  are of the view that the Chapter Notes, in particular 5(B) and 5(D), provide further 
contextual support for the broad interpretation of the terms "input or output units" and "printers" in the 
text of 8471 60.  By contrast, the European Communities  argues that Chapter Note 5(B) confirms, at 
the very least, that products with a copying function that is not secondary or equivalent to the other 
capabilities are classifiable under subheading 900 9 12, and thus subject to duties.   
Notes 5(B) and 5(C) to Chapter 84 
7.1286  The complainants  submit that Note 5 to HS1996 Chapter 84 is very relevant to an 
interpretative analysis of the ordinary meaning of the concession at issue because it contains language 
that "speak[s] directly to the mean ing of the terms" of the concession at issue, i.e. the meaning of 
"units" in HS1996 heading 8471 and subheading 8471 60 of the EC Schedule.  The complainants 
argue that the language of Note 5 to HS1996 Chap ter 84, as a whole, confirms that subheading 
8471 60 covers products, such as ADP MFMs, whose defining characteristics, are their ability to 
connect to, and be used as an input or output  unit of an automatic data-processing machine.1674  The 
fact that the language of Note 5 only speaks of the need to be "connectable", rather than "actually 
connected", to an automatic data -processing machine also indicates that products which have some 
                                                      
1672 Australia and Singapore, third parties to this dispute, also make reference to this Chapter Note with 
respect to MFMs.  Australia only "notes " the existence of this Chapter Note, in particular Chapter Note 5(D), 
but without explaining how exactly this rule applies to  ADP MFMs (Australia's third party submission, para. 
17).  Singapore, on the other hand, ad dresses the meaning of Note 5(B) in more detail and claims that this rule 
confirms that ADP MFMs fall in the concession und er HS1996 heading 84.71 (Singapore's third party 
submission, paras. 84-85). 
1673 Section XVI is the section containing  Chapter 84 (and also Chapter 85). 
1674 Japan's first written submission, paras. 74 and 146-147 (citing the Appellate Body report on 
EC - Chicken Cuts , para. 224, fn. 224); Chinese Taipei clarifies that while for classification  purposes there is no 
hierarchy between sub-paragraphs (a), (b) and (c) of Chapter Note 5(B), for contextual purposes the "ability to 
connect to a computer", as required by sub-paragraph (b) of the Note, is the most relevant element to this case 
(Chinese Taipei's response to Panel question No. 36).  WT/DS375/R 
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  stand-alone features or capabilities still qualify as input  or output units within the meaning of the 
subheading.
1675   
7.1287  The European Communities , on the other hand, argues that a proper reading of Note 5(B) 
indicates that the mere fact that a machine is connectable to an automatic data-processing machine 
does not make it classifiable under HS1996 subhead ing 8471 60.  In particular, the European 
Communities focuses on the wording in Note 5(B )(a) that sets as one of the conditions for 
classification as being part of a "complete system" that the unit be "of a kind solely or principally used in an automatic data-processing system."  Based on this understanding of Note 5(B)(a), the European 
Communities argues that it is erroneous to conc lude that the EC concession under HS1996 heading 
8471 60 covers "each and every MFM that can connect to a computer."
1676  Indeed, the European 
Communities argues that Note 5(B)(a) "makes it cl ear that a "unit" may not be classified under 
HS1996 subheading 8471 60 unless it is used 'solely or principally' with an ADP system."1677   
7.1288  Chinese Taipei, however, responds that the phrase "of a kind" in Note 5(B)(a) should be 
interpreted as meaning "designed for" or "intended fo r", and defines the scope of the phrase "solely or 
principally."  Therefore, according to Chinese Taip ei, what counts is not the "actual use" of the 
apparatus but its "physical characteristics".1678 
7.1289  Finally, Japan notes that the European Court of Justice, in particular in the recent Kip ruling, 
accepted the possibility that multifunctional machines could be of a kind used principally in an 
automatic data-processing system and instructed th e European Communities to make classification 
decisions about such machines on a case-by-case basis.1679  In Japan's view, this ruling indicates that 
the European Court of Justice recognized the key importance of the digital interface and computer 
connectivity in assessing these products.1680 
7.1290  Additionally, Japan argues that Note 5(C) exp licitly confirms that "units" of an automatic 
data-processing machine – whether being imported with or without computers that can use the "unit" 
in question – still belong in heading 8471.1681 
Note 5(D) to Chapter 84 – "printers" and Note 3 to Section XVI 
7.1291  Japan  argues that this chapter note confirms that  for any computer "printers" (i.e., devices 
that can receive and print output of an auto matic data-processing machine), HS1996 heading 8471 
must apply as long as the printers can "connect" to th e computer (the rule of  paragraph (B)(b)) and the 
                                                      
1675 United States' first written submission, para. 153. 
1676 European Communities' first oral statement, paras. 55-59; European Communities' comments on 
Japan and Chinese Taipei's responses to Panel question No. 127(b). 
1677 European Communities' second oral statement, para. 121. 
1678 Chinese Taipei's comments on the WCO responses to Panel questions, para. 14. 
1679 Japan's first oral statement, paras. 23-27; Japa n's second written submission, paras. 111, 114-117 
and 120.  However, Japan first qualifies its reliance on this ruling stating that, while it is useful in a number of respects in highlighting flaws in the European Communities' position, this ruling is merely the European 
Communities' interpretation of the HS un der its domestic law within its juri sdiction and therefore does not bind 
this Panel.  Further, Japan strongly disagrees with Kip's "presumption" that "digital copiers" can be 
"photocopying apparatus" under HS1996 heading 9009. (see Japan's first oral statement, para. 24; Japan's 
second written submission, para. 113). 
1680 Japan's first oral statement, paras. 23-27;  Japan's second written submission, paras. 111, 114-117 
and 120.  See also, below at fn. 1780 to paragraph 7.1380, Chinese Taipei's quotation from the Kip ruling. 
1681 Japan's first written submission, para. 150. WT/DS375/R 
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  printers can "accept or deliver" the comput er data (the rule of paragraph (B)(c)).
1682  According to 
Japan, Note 5(D) provides important interpretative gui dance that the conditions in Note 5(B)(a) do not 
apply and that all devices which are computer "print ers" belong in heading 8471 even if they have 
other uses that might arguably be considered "principal".1683     
7.1292  Japan and Chinese Taipei also argue that the meaning of "printer" is not limited to single 
function printers.1684  According to Japan when thinking about a multifunction device, it is entirely 
proper to think of that device as being the mach ine that performs the principle function of the 
device.1685  Japan therefore claims that a devi ce should be considered a "printer" when :  (1) it can 
function as a "printer" and (2) the facts and circumstances demonstrate the device is more a "printer" 
than any other item.  Inherent in the word "printer,"  claims Japan, is the notion that a device that is 
"essentially a printer" does not automatically become something else because of some other functions.  
The meaning of the word "printer" therefore does not  have any such bright line as advocated by the 
European Communities.1686  The complainants find support for their positions in the response of the 
WCO Secretariat to questions from the Panel, whic h they argue clarifies that the reference to 
"printers" in HS1996 Note 5(D) is not limited to "stand alone printers", and can include 
"multifunctional machines".   
7.1293  Japan and Chinese Taipei also find contextual support for the interpretation of the word 
"printer" under Note 5(D) in Note 3 to Secti on XVI of the HS1996, which provides interpretative 
guidance for headings in HS1996 Chapters 84 and 85.  According to the complainants, Section Note 3 
confirms that when the printing function is the pr incipal function of a multifunction device that device 
would still be classifiable as a "printer" under subheading 8471 60. 1687  Japan and Chinese Taipei find 
support for this position in the WCO Secretariat's responses to the Panel's questions on this matter1688, 
which stated that  
"[B]y application of Note 3 to Section XVI, HS1996 heading 8471 could also have 
covered "certain multifunctional machin es" for which the connectible printing 
function -- the function described Note 5 (D ) to Chapter 84 -- was determined to be 
the machine's principal function, because Note  5 (D) to Chapter defined the scope of 
HS1996 heading 8471.1689   
7.1294  The European Communities  argues that Note 5(D) should be  interpreted strictly and any 
machines not expressly described therein remain subject  to the rule in Note 5(B)(a).  The European 
Communities claims that evidence of the narrow scope  of Note 5(D) can be found in its "negotiating 
history", which confirms that this Note was not  meant to address multifunctional machines, such as 
                                                      
1682 Japan's first written submission, para. 151.   
1683 Japan's first written submission, para. 152; Japan's first oral statement, para. 29; Japan's second 
written submission, paras. 83 and 87. 
1684 Chinese Taipei's second written submission, paras. 328-332. 
1685 Japan's second written submission, para. 79; see also Chinese Taipei's second written submission, 
paras. 328-332 (arguing that classification of a MFM as a printer could, for instance, result from a classification 
on the basis of GIR 3(b), where the print module confers the essential character to the apparatus.). 
1686 Japan's second written submission, paras. 79, 90 and 88. 
1687 Japan's second written submission, paras. 90-93.  See also Japan's second oral statement, paras. 44-
46. 
1688 Japan's comments on the WCO responses to Panel questions, page 3; Chinese Taipei's comments 
on the WCO responses to Panel questions, paras. 28-29. 
1689 WCO responses to Panel questions, p. 14.  WT/DS375/R 
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  those at issue, but rather single-function printers, which may print indistinctly data received from an 
automatic data-processing machine and from a differe nt office machine, su ch as a word processor.
1690 
7.1295  The European Communities also dismisses the re levance of Note 3 to Section XVI to the 
interpretation of the concession at issue.  The Eur opean Communities submits that the application of 
Section Note 3 to Section XVI presupposes however that the product at issue is a multifunctional machine which is prima facie classifiable under two or more headings, each covering a different 
function.  The European Communities therefore conte nds that, in the case at hand, before resorting to 
Note 3 to Section XVI, it is necessary to consid er whether the product concerned is prima facie 
classifiable under HS1996 heading 8471 pursuant to  Note 5 to Chapter 84. The European 
Communities also notes, however, that Note 3 to Section XVI only applies where a multifunctional 
machine is prima facie cl assifiable under two or more headings of that  same Section (which includes 
Chapters 84 and 85). Thus, Section Note 3 cannot  be applied in order to establish whether a 
multifunctional machine is to be classified under HS1996 heading 8471 or under HS1996 heading 
9009, since the latter is included in  another Section (Section XVIII).
1691 
7.1296  Chinese Taipei  adds that if Note 3 to Section XVI  would be inapplicable because HS1996 
heading 9009 were also a possible classification option, classification should take place pursuant to GIR 3.  According to Chinese Taipei, the "multif unctional machine" would still be classified under 
HS1996 heading 8471 pursuant to GIR 3(b) to the exte nt that the "essential character" of the device is 
that of a "printer".
1692 
7.1297  Japan  responds that even if Note 3 to Section XVI  might not be applicable to a classification 
determination it still provides useful context as pa rt of the holistic application of the treaty 
interpretation rules codified in the Vienna Conventio n.  Regardless of the applicability of Note 3 to 
Section XVI in a particular classification case, Japan  and the United States both consider that it is 
relevant for purposes of interpreting the text of th e concession in 8471 60, indeed, they argue that it 
would make little sense to ignore Section Note 3 – which applies to Chapter 84 and Chapter 85 – as 
context for understanding HS1996 heading 8471.1693 
Consideration by the Panel 
7.1298  The Panel notes at the outset that the discussion of the HS1996 Notes in this section of the 
Reports is related to the contextual value the Note  provides for interpreting the ordinary meaning of 
the terms in subheading 8471 60 – i.e., "input or ou tput units" and "printers."  Although we recognize 
that the chapter note is used by customs author ities in making a classification determination about 
whether particular products, such as the ADP MFMs described by the complainants in footnote 15 of 
the joint Panel request, should be classified in a pa rticular heading or subheading, consistent with 
                                                      
1690 European Communities' first written submission, paras. 420-421;  European Communities' second 
written submission, para. 133;  European Communities' second oral statement, paras. 136-137. 
1691 European Communities' response to Panel question No. 20.  The European Communities sees 
confirmation to the inapplicability of Section Note 3 wh en the prima facie issue is between headings from a 
Section other than Section XVI, based on the following reas ons:  first, the text of Note 5 to Section XVI itself 
limits the definition of "machine" to devices cited in Chapters 84 or 85.  Second, the HSEN to Section Note 3 
limits the definition of "composite machines" to thos e machines "described in different headings of 
Section XVI."  Third, whereas Note 3 to Section XVIII st ates that "the provisions of Note 4 to Section XVI 
apply also to this Chapter", no similar provision has been made with respect to Note 3 to Section XVI. 
(European Communities' response to Panel question No. 20).  See also the European Communities' second oral 
statement, para. 123. 
1692 Chinese Taipei's comments on the WCO responses to Panel questions, paras. 28-29. 
1693 United States' response to Panel question No. 20; Japan's second written submission, para. 96. WT/DS375/R 
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  prior decisions of the Appellate Body we find that it can also provide context for the intended scope 
of the heading itself.
1694  With that said, we begin our anal ysis of what context the chapter note 
provides to an understanding of the concession in 8471 60.   
7.1299  We observe that the relevant notes concerning HS1996 Chapter 84 that have been mentioned 
are Note 5 and Subheading Note 1 (for 8471 49), which read as follows:1695  
"Chapter 84 
Nuclear reactors, boilers, machinery  
and mechanical appliances; parts thereof 
Notes.  [...] 
5.(A)  For the purposes of heading No. 84.71, the expression "automatic data-
processing machines" means : 
(a)  Digital machines, capable of (1) st oring the processing program or programs 
and at least the data immediately neces sary for the execution of the program;  
(2) being freely programmed in accordance with the requirements of the user; (3) performing arithmetical computations specified by the user; and, ( 4) executing, without human intervention, a processing program which requires them to modify then-execution, by logical decision during the processing run; 
(b)  Analogue machines capable of si mulating mathematical models and 
comprising at least: (1) analogue elements, control elements and 
programming elements;  
(c)   Hybrid machines consisting of either a digital machine with analogue 
elements or an analogue machine with digital elements. 
(B) Automatic data-processing machines may be in the form of systems consisting of 
a variable number of separate units.  Subject to paragraph (E) below, a unit is to be 
regarded as being a part of a complete system if it meets all of the following conditions:  
(a) It is of a kind solely or principally u sed in an automatic data-processing system; 
(b) It is connectable to the central processing unit either directly or through one or more 
other units; and 
(c) It is able to accept or deliver data in a form (codes or signals) which can be used by 
the system. 
(C) Separately presented units of an auto matic data-processing machine are to be 
classified in heading No. 8471. 
                                                     
 
1694 Appellate Body Reports on EC – Computer Equipment , para. 89; EC – Chicken Cuts , para. 199 and 
China – Auto Parts , para. 151.  
1695 Exhibits US-84, JPN-23; EC-15.  WT/DS375/R 
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  (D) Printers, keyboards, X-Y co-ordinate input  devices and disk storage units which 
satisfy the conditions of para graphs (B) (b) and (B) (c) a bove, are in all cases to be 
classified as units of heading No. 8471. 
(E) Machines performing a specific function other than data-processing and 
incorporating or working in conjunction with an automatic data-processing machine 
are to be classified in the headings appropriate to their respective functions or, failing that, in residual headings. 
[...] Subheading Notes.  
1.- For the purposes of subheading No. 8471. 49, the term "systems" means automatic 
data-processing machines whose units satisfy th e conditions laid down in Note 5(B) 
to Chapter 84 and which comprise at least  a central processing unit, one input unit 
(for example a keyboard or scanner), and one output unit (for example, a visual 
display unit or a printer). 
7.1300  We observe further that Notes 3 and 5 to Section XVI of the HS1996 read as follows: 
 
Section XVI 
 
MACHINERY AND MECHANICAL APPLIANCES; 
ELECTRICAL EQUIPMENT; PARTS THEREOF; 
SOUND RECORDERS AND REPRODUCERS, TELEVISION IMAGE 
AND SOUND RECORDERS AND REPRODUCERS, AND PARTS 
AND ACCESSORIES OF SUCH ARTICLES 
 
Notes. 
[...] 3. Unless the context otherwise requires, composite machines consisting of two or 
more machines fitted together to form a whole and other machines adapted for the 
purpose of performing two or more complementary or alternative functions are to be classified as if consisting only of that component or as being that machine which 
performs the principal function.  
[...] 5. For the purpose of these Notes, the expression "machines" means any machine, 
machinery, plant, equipment, apparatus or appliance cited in the headings of Chapter 
84 or 85. 
7.1301  We observe that Note 5 to HS1996 Chapter 84 is organized in a way similar to the heading 
itself.  Note 5(A) defines an automatic data-proces sing machine; Note 5(B) describes how a "unit" can 
qualify as part of a "complete system"; Note 5(C) addresses units presented separately; Note 5(D) to printers, keyboards and X-Y devices and disk storag e units; and Note 5(E) to machines incorporating WT/DS375/R 
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  or working in conjunction with an automatic  data-processing machine and performing a specific 
function other than data-processing. 
7.1302  With respect to the three criteri a in Note 5(B), we note that the main disagreement among the 
parties is the relevance of the requirement in Note  5(B)(a) to a determination of the scope of the 
coverage of the term "input or out put units" in subheading 8471 60. Namely, that to be regarded as 
part of a complete system, the "unit" must be "of a kind solely or principally used in an automatic 
data-processing system". The European Communities argues that Chapter Note 5(B) is directly 
applicable to the question of what types of produc ts fit within the subheading 8471 60 and that a 
product must be solely or principally used in an  automatic data-processing system in order to fall 
within the scope of the concession.
1696 The complainants respond that the term "of a kind" focuses 
more on the design or intended use of the product and not the actual use with an automatic data-
processing system, which would require a case-by- case approach to a determination of whether a 
particular multifunction digital machine satisfied  all three criteria in Chapter Note 5(B). 
7.1303  In response to a question posed by the Pane l on the meaning of the phrase "of a kind" in 
Note 5(B)(a), the WCO Secretariat explains that the Nomenclature Committee considered the issue, 
but declined to issue an Interpretative Rule defining the expression. Therefore, in the WCO 
Secretariat's view, it would "seem reasonable to conclude that the Nomenclature Committee was, in effect, leaving the interpretation of the expressions to each administration to apply, on a case-by-case 
basis, in the context of classifying specific articles."
 1697  
7.1304  It seems to the Panel, that the European Co mmunities' argument requires reading the term "of 
a kind solely or principally used" as "solely or pr incipally used", which would deprive the phrase "of a 
kind" of any utility.1698  Therefore, we agree with Chinese Taip ei's position, which seems to be the one 
of the European Court of Justice in the Kip judgment, that the inclusion of the phrase "of a kind" 
means that a determination pursuant to Chapter No te 5(B)(a) requires an examination of the design 
and intended use of a product based on its objective phys ical characteristics., rather than a simple look 
at the actual use.  This does seem to inform the conc lusion, that with respect to units of a complete 
system, the issue is not actual use with the com puter but whether the unit was designed or intended 
solely or principally for use with the computer sy stem and also satisfies the criteria of Note 5(B)(b) 
and (B)(c), i.e., is capable of connecting to the cen tral processing unit and able to accept or deliver 
data in a form (codes or signals) wh ich can be used by the system.  
7.1305   We note that the chapeau to Note 5(B) tells us that the note provides guidance in determining 
whether a unit can be regarded as being part of a complete system.1699  Note 5(C) provides that 
                                                      
1696 European Communities' second oral statement, para. 121. 
1697 WCO responses to Panel questions, pp. 5-6. 
1698 European Communities' first written submission, para. 188; European Communities' first oral 
statement, para. 57; European Communities' response to Panel question No. 46; European Communities' second written submission, paras. 25 and 33; European Commun ities' second oral statement, paras. 121 and 131. 
1699 The Panel notes that HS96 subheading 8471 60 does not refer to "systems" or "complete systems", 
rather HS96 subheading 8471 49 is the only subheading of HS96 heading 8471 which refers to systems.  Although not raised by the parties in this dispute, this ma y raise a question whether Note 5(B) is applicable to all 
"units" or only those units that are to be regarded as forming part of a complete system.  We note that in 
paragraph 7.626 above, based on the plain meaning of the terms, we considered that a unit of an ADP is a device t h a t  f o r m s  " p a r t  o f  a n  A D P  o r  a n  ADP system" and that performs "at least one specified function involving 
sending/receiving signals, informati on or data from the ADP or ADP sy stem."  While the Panel does not 
exclude an interpretation whereby "units" might nevertheless fall under Note 5(C), for example, the Panel does not consider that it makes a substantive difference in the circumstances of this disput e, and it therefore does not 
consider it necessary to rule on this matter.  WT/DS375/R 
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  separately presented units of an ADP machine "are to be classified in heading 8471."    Additionally, 
Note 5(D) provides that printers, keyboards, X- Y co-ordinate input devices and disk storage units 
which satisfy the terms of Notes 5(B)(b) and (B)(c) ar e in all cases to be classified as units of heading 
8471.  
7.1306  We are of the view that these provisions of th e Chapter Note must be read holistically and 
cannot be read in such a way that whether a par ticular device falls within heading 8471 would differ 
depending on how it is presented at the border, i.e. , separately or as part of a complete system.  We 
also note that the requirement in Note 5(B)(a) that un its be "of a kind solely or principally used in an 
automatic data processing system" resonates with what  we have already found to be the plain meaning 
of a "unit of an ADP machine".
1700  We also recall that an ADP sy stem is defined in the subheading 
note as consisting of at least a CPU, one input unit, and one output unit.1701  Therefore, regardless of 
whether a unit is presented as part of a complete ADP system or separately it must be "of a kind solely or principally used in an automatic data processing system".  
7.1307  We also look to Note 5(D) which deals with  printers, keyboards, X-Y co-ordinate input 
devices and disk storage units which are in all cases to be classified as units of heading 8471 if they 
satisfy the  criteria in (B)(b) and (B)(c).  As not ed above, the features required under (B)(b) and (B)(c) 
are the ability to connect to the central processing un it either directly or through one or more other 
units and to accept or deliver data in a form which can be used by the system.  We also note that 
Subheading Note 1 (for 8471 49) lists a printer as an example of an output unit.  The European 
Communities seems to agree with th e Subheading Note 1 (for 8471 49) that "printers" are "input or 
output units", as they created an eight-digit tariff item number underneath subheading 8471 60 for "printers" in their Schedule.  Given the relations hip between the eight-digit tariff item numbers and 
the six-digit subheading under which they fall, it is reasonable to conclude that the ability to connect 
to an automatic data-processing machin e and to accept or deliver data in  a form which can be used by 
the ADP machine or system are important criteria for determining not only what is a "printer" under 
CN 8471 60 40 in the EC Schedule, but also what  "input or output" units are, generally.    
7.1308  Japan and Chinese Taipei go on to contend that Note 5(D) clarifies that a printer which 
satisfies the terms of Notes 5(B)(b) and (B)(c) fall s within the heading 8471 regardless of whether it 
has other functions.  The WCO Secretariat explains that , "the reference to "printers" in Note 5 (D) to 
Chapter 84 covered all machines which "printed" bu t (A) neither (1) "copied" nor (2) "scanned" and 
"transmitted a representation of the printed page", when (B) such machine "met the terms of Notes 
5 (B) (b) and 5 (B) (c) to Chapter 84."
1702  Therefore, it would seem that application of Note 5(D) on 
its own would not provide for the classificati on of multifunction machines in heading 8471.  
However, the WCO Secretariat also informed the Panel that via the application of Note 3 to 
Section XVI, which would classify composite machines adapted for the purpose of performing two or 
more complementary or alternative functions as being that machine which performs the principal 
function, a multifunction machine which had printing as its principal function might be classifiable in 
heading 8471, pursuant to Chapter Note 5(D).1703  We note that both the European Communities and 
                                                      
1700 See paragraph 7.626 above where we stated that, based on the plain meaning of the terms, units of 
an ADP are devices that form part of an ADP or an AD P system and that perform at least one specified function 
involving sending/receiving signals, informati on or data from the ADP or ADP system. 
1701 Subheading Note 1 (for 8471 49) cited in Japan's first written submission, fn. 69. Subheading Note 
1 clarifies that for the purposes of subheading 8471 49 the term "systems" means computers "whose units satisfy 
the conditions laid down in Note 5(B) to chapter 84 an d which comprise at least a central processing unit, one 
input unit (for example a keyboard or a scanner) and one output unit (for example a visual display unit or a 
printer). 
1702 WCO responses to Panel questions, p. 14. 
1703 WCO responses to Panel questions, p. 14. WT/DS375/R 
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  Chinese Taipei seem to accept that Note 3 to Secti on XVI would not be of use in a situation where the 
product in question was also classifiable in a head ing outside Chapters 84 or 85, because Note 5 to 
Section XVI limits the expression "machines" in the Notes to apparatus in the headings of those 
Chapters.
1704  Nevertheless, in terms of giving contex t to the terms in HS1996 subheading 8471 60, 
Note 3 further informs our understanding that in  certain circumstances a multifunction machine could 
fall within the scope of heading 8471 if its pr incipal function was one covered by the specific 
subheadings.   
7.1309  Finally, Note 5(E) to HS1996 Chapter 84 provides for classification of machines 
incorporating or working in conj unction with an automatic data -processing machine and performing a 
specific function other than data-processing.  According to this note, these "are to be classified in the 
headings appropriate to their respective functions or , failing that, in residual headings."  Nothing in 
Note 5(E) instructs on how to determine wh ether a product which performs data processing and a 
specific function other than data processing may fall w ithin the scope of heading 8471.  We also note 
that pursuant to a reading of Note 5(E) in conjunc tion with Note 3 to Section XVI, and to the extent 
the latter note is applicable, if a multifunctional pr oduct's principal function was determined to be 
printing, scanning or some other form of data processing it might still fall within heading 8471. 
7.1310  Our analysis of the Note 5 to HS1996 Chapter 84 and Note 3 to Section XVI has led us to 
understand that ADP "units", in a variety of forms, are to be covered under HS1996 heading 8471.  This is true of units that are part of a comple te system, that are presented separately, that are 
printers/keyboards/X-Y units or that are disk st orage units.  This provides important context for 
determining the scope of this concession.  Subheadin g Note 1 (for 8471 49) also informs us that input 
or output units include such machines as scanners and printers.  We have also concluded that the term 
"units" must be understood to be the same whethe r those units are part of a system or presented 
separately.       
7.1311  In sum, our review of Note 5 to Chapter 84 and Note 3 to Section XVI further informs our 
understanding that input or output units of an AD P machine are devices that are of an "automatic 
data-processing machine", part of an "automatic  data-processing machine system", that are 
connectable to the central processing unit either direc tly or through one or more other units and that 
perform at least one specified function that involves accepting or delivering data in a form (codes or signals) that can be used by the automatic da ta-processing machine or "automatic data-processing 
machine system".  Chapter Note 5(E) also inform  our understanding that not all devices capable of 
connecting to an ADP machine necessarily  qualify as an input or output unit of heading 8471.  
Other parts of the EC Schedule 
 
Arguments of the parties 
7.1312  Chinese Taipei  first refers to the eight-digit tariff item numbers, which the European 
Communities has established within 8471 60.  In particular, Chinese Taipei notes that 8471 60 
contains an eight-digit tariff item numbers 8471 60 90 ("- - Other; "- - - Other"). Chinese Taipei 
                                                      
1704 We note that the only argument the European Communities has made with respect to the possible 
classification of MFMs outside Chapters 84 and 85 is with respect  to their classification in subheading 9009 12.  
The Panel has dealt with whether MFMs can be classified in subheading 9009 12 in paragraphs 7.1469 et seq.  
below.   WT/DS375/R 
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  submits that the existence of the "other"
1705  subcategory indicates therefore that, under the 
EC Schedule, all "input or output units" of computers that are not specifically covered by one of the 
tariff item numbers under the HS1996 subheading 8471 60  (i.e., as "printers" or "keyboards") fall 
under the "residual" tariff item number 8471 60 90.  Chinese Taipei reasons that the existence of a 
"residual subheading"  in the EC Schedule is important as it tends to underline the "broad scope"  of the 
EC concession in HS1996 subheading 8471 60, under wh ich it is included.  Hence, concludes Chinese 
Taipei, even if the ADP MFMs at issue were not to be regarded as "printers" under tariff item number 
8471 60 40, they nonetheless fall within the scope of the concession contained in tariff item number 
8471 60 90 ("Other").1706 
7.1313  The European Communities focuses on another aspect of its schedule as context for 
understanding its obligations under 8471 60, the s ubheading for photocopying apparatus in 9009 12.  
As noted above, the European Communities  has focused its defence against these claims by arguing 
that the products in question act ually fall outside the scope of th e duty-free concession and thus the 
European Communities has not acted inconsistently with its obligations under Article II of the GATT 
1994.  The European Communities maintains that the products at issue actually fall within the scope 
of a dutiable concession in its schedule, HS1996 su bheading 9009 12.  These arguments will be dealt 
with in more detail in section VII.G.3(c) below.  However, in response to the European Communities 
arguments, the complainants  submit that the heading HS1996 subheading 9009 12 actually provides 
contextual support for their position that the products  at issue fall within the broad scope of HS1996 
subheading 8471 60.1707 
7.1314  In particular, the United States  argues that because subheading 9009 12 uses the term 
"photocopying" it clearly does not cover MFMs, which perform a range of functions, including 
scanning and printing, that are not performed by a photocopier.  Additionally, the United States 
argues that while an MFM may perform a copying function, the manner in which it does so sets it 
apart from a photocopier.1708  Chinese Taipei  argues that the HS is struct ured logically with Chapter 
84 including mechanical machines, Chapter 85 electrical machines and Chapter 90 optical 
instruments.  Chinese Taipei argues that there is a fundamental difference in the nature between the 
products covered in Chapters 84 and 85 on the one ha nd on those covered by Chapter 90 on the other.  
According to Chinese Taipei Chapte r 90 "exhaustively covers certain  specific types of instruments 
which are exhaustively and precisely defined as 'op tical, photographic, cinematographic, measuring, 
checking, precision, medical or surgical instrume nts'"  Chinese Taipei concludes then that digital 
technology is excluded from Chapter 90 and therefor e apparatus that use it must also be excluded 
from its scope.1709  
7.1315  Japan  finds relevance in the fact that, in its opinion, several head ings within the EC 
Schedule, and not only subheading 9009 12 could c over "copying".  Japan argues that 8471 covers 
output units that can print out one or multiple c opies based on the outputting of digital data while 
heading 8472 10 covers "other office machin es" which can make one or multiple copies of a 
document using technologies that are neither digita l nor photocopying.  Japan argues that because 
                                                      
1705 Chinese Taipei's first written submission, para. 554 (citing the Shorter Oxford Dictionary (1993)  
defining "other" as "existing besides or distinct from that or those already specified or implied; further, additional). 
1706 Chinese Taipei's first written submission, pa ras. 555-557;  Chinese Taipei's second written 
submission, para. 333. Japan, more generally, refers to EC concession in CN code 8471 60 90 ("Other"), 
together with the text of other subheadings, as part of its contextual arguments on the "structure" of HS1996 
heading 84.71 (see Japan's first written submission, para. 142). 
1707 United States' first written submission, para. 155. 
1708 United States' first written submission, paras. 157-160. 
1709 Chinese Taipei's first written submission, paras. 597-598. WT/DS375/R 
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  three distinct headings can cover "copying" the deci ding factor of the scope of the coverage of these 
headings must come from another factor besides the simple ability to make copies.  In Japan's view, 
the distinction comes from the underlying technology used.
1710  Japan then agrees with the other 
complainants that because MFMs u se digital rather than optical technology they cannot be classified 
in subheading 9009 12.1711 
Consideration by the Panel 
7.1316   We begin our analysis with the eight-digit tariff item number of 8471 60 90, which falls 
under  subheading 8471 60 in the EC Schedule.  We note that subheading 8471 60 in the EC Schedule 
seems to follow the same type of st ructural logic as the main heading.  It begins generally with input 
or output units and then specifies the coverage of pr inters, keyboards, and other.  As with the main 
heading, 8471 60 contains very generic language (i.e ., "input or output units") and then has eight-digit 
tariff item numbers which further subdivide the broa der category.  One of these eight-digit codes is 
"other", which as noted above can be a signal that the subheading under which it falls is not intended 
to be narrowly construed.   
7.1317  As noted above, the Panel will address in deta il below the European Communities' arguments 
that the products at issue properly fall within  the scope of the dutiable concession at HS1996 
subheading 9009 12.  Here, we address only the argum ent that the distinctions between digital and 
photocopying technology in the EC Schedule must have  some relevance for the interpretation of the 
scope of coverage of subheading 8471 60.  We do ta ke Japan's point that 8472 10 demonstrates that 
not all forms of copying are covered exclusively under the subheading in 9009 12 for photocopying.  
However, we do not find this lends much interp retative assistance to determining what types of 
products the terms "input or output units" of automati c data-processing machines  in the concession at 
issue, 8471 60, cover and whether this includ es products described as "digital copiers". 
7.1318  Therefore, we find that an analysis of the othe r portions of the EC Schedule, outside the terms 
of 8471 60 and its eight-digit tariff item numbers, do not provide much guidance in interpreting the 
scope of the concession in 8471 60.   
(iii) Object and purpose  
Arguments of the parties  
7.1319  The complainants note that a recognized object and purpose of the WTO Agreement  and 
GATT 1994 is providing security and predictability in  the reciprocal and mutually advantageous 
arrangements directed to the substantial reduction of tariffs and barriers to trade.1712  T h e  
complainants also note that both the WTO Agreement  and the GATT 1994 recognize "expanding the 
production and trade in goods" as another core object and purpose that is furthered by reciprocal 
reductions in tariffs.  
7.1320  Japan  submits that the overarching object and purpose of the WTO Agreement  and the GATT 
1994 has been reinforced in the sp ecific context of the ITA.  In particular, Japan cites to the 
                                                      
1710 Japan's first written submission, para. 124. 
1711 Japan's first written submission, paras. 125-128. 
1712 Japan's first written submission, para. 172 citing paragraph 3 of the Preamble to the Marrakesh 
Agreement; Panel Report on China – Auto Parts , para. 7.460 and Appellate Body Report on EC – Chicken Cuts , 
para. 243.  WT/DS375/R 
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  Ministerial Declaration on Trade in Information Technology Products which expressed the desire "to 
achieve maximum freedom of world trad e in information technology products."
1713   
7.1321  Chinese Taipei  argues that to promote such security and predictability, in the first place, the 
interpretation of a concession is to be limited by th e terms used in that concession.  Furthermore, the 
complainants argue that the objec tives of security and predictability also require that concessions 
cover products even if they did not exist in that fo rm at the time the concessions have been granted to 
the extent that they comply with the wording of  the concessions concerned.  Japan posits that the 
concession must cover all devices that fit squarely within its terms regardless of how their other 
functionality may change or improve over time.1714  Chinese Taipei argues that it would run counter to 
such objectives if the European Communities could exclude from the scope of its concessions some 
apparatus just because they are more complete or  more developed than when they initially existed.1715  
Japan also argues that allowing the European Communities to treat products falling within the 
ordinary meaning of "output units" or more specific ally "printers" as being outside the scope of the 
duty-free concession because of characteristics unrelated to the core meaning of an "output unit", such 
as pages per minute, would undermine the security and predictability of the original concession.1716   
7.1322  The European Communities  reiterates the arguments it made with respect to the object and 
purpose of the concessions for flat panel displays, which are described in paragraph  7.540 above. 
Consideration by the Panel  
7.1323  We recall that Article 31(1) of the Vienna Convention  requires that a treaty must be 
interpreted in light of that particular treaty's object  and purpose.  As we stated in paragraph 7.542  
above, under Article II:7 of the GATT 1994 and Article II:2 of the WTO Agreement , the concessions 
contained in the EC Schedule, including the Annex to the EC Schedule, are treaty terms of the GATT 
1994 and the WTO Agreement .   
7.1324  The Appellate Body in EC – Chicken Cuts , explained that the "starting point for ascertaining 
'object and purpose' is the treaty itself, in its en tirety and not to place too much weight on the object 
and purpose of a particular concession in a Member's schedule, because "one Member's unilateral object and purpose for the conclusion of a tariff commitment cannot form the basis' for an interpretation of that commitment, because interpre tation in the light of Articles 31 and 32 of the 
Vienna Convention must focus on ascertaining the common intentions of the parties."
1717 
7.1325  With respect to the relationship between th e object and purpose of the GATT 1994 generally 
and a Member's tariff concession, we recall the Appellate Body's statement in 
Argentina - Textiles and Apparel  that: 
"[A] basic object and purpose of the GATT 1994, as reflected in Article II, is to 
preserve the value of tariff concessions negotiated by a Member with its trading partners, and bound in that Member's Sc hedule.  Once a tariff concession is agreed 
and bound in a Member's Schedule, a re duction in its value by the imposition of 
                                                     
 
1713 Japan's first written submission, para. 173 citi ng Ministerial Declarati on, WT/MIN(96)/16 (13 
December 1996), at Preamble, Page 1, Clause 4. 
1714 Japan's first written submission, para. 177. 
1715 Chinese Taipei's first written submission, paras. 627-630. 
1716 Japan's first written submission, para. 179; Japan' s first oral statement, paras. 33-34; Japan's 
response to Panel question No. 2;  Japan's second written submission, paras. 4 and 12. 
1717 Appellate Body Report on EC – Chicken Cuts , paras. 238-239. WT/DS375/R 
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Page 386 
  
  duties in excess of the bound tariff rate would upset the balance of concessions 
among Members."
1718 
7.1326  Accordingly, the Panel considers that the object a nd purpose that is relevant to our analysis is 
the object and purpose of the treaty that is the subject of this dispute, namely the WTO Agreement , of 
which the GATT 1994 and the EC Schedule are an inte gral part.  As noted above the  security and 
predictability of the reciprocal and mutually advant ageous  arrangements directed to the substantial 
reduction of tariffs and other barriers to trade  is an object and purpose of the WTO Agreement , 
generally, as well as of the GATT 1994.1719 
7.1327  On this basis, we consider that tariff  concessions made by WTO Members should be 
interpreted in such a way to further the obj ectives of preserving and upholding the "security and 
predictability" of "the reciprocal and mutually adva ntageous arrangements directed to the substantial 
reduction of tariffs and other trade barriers to trade".  This incl udes consideration of the general 
objective of the expansion of trade and the substan tial reduction of tariffs.  However, a panel should 
take care not to disturb the balance of reciprocal  and mutually advantage ous concessions negotiated 
by parties.1720 
7.1328  In this case, the complainants have also argued that provisions of the ITA, a plurilateral 
agreement that is separate from the WTO Agreement , are relevant in determining the object and 
purpose of the WTO Agreement .1721  While the WTO Agreement  represents a mutual agreement among 
all WTO Members, the ITA constitutes a separate pl urilateral arrangement made among a subset of 
WTO Members and states and customs territories accedi ng to the WTO.  Due to the application of the 
MFN principle and Article II of the GATT 1994, the dut y bindings and eliminations agreed to by the 
ITA participants were also extended to all WTO Me mbers.  However, that does not mean that the 
objectives of the ITA participants of having partic ipants' tariff regimes "evolve" in a manner that 
"enhances market access for in formation technology products"1722, or "achiev[ing] maximum freedom 
of world trade in information technology products " and "encourag[ing] the continued technological 
development of the information technology industry on a world-wide basis"1723 – can be considered a 
basis for determining the object and purpose of the WTO Agreement  and the GATT 1994.  The ITA 
participants are a subset of the Membership as a whole and their intentions with respect to an 
agreement amongst themselves, while relevant c ontext for understanding the concessions they have 
made, are not appropriate for informing a de termination on the object and purpose of the WTO 
Agreement  and the GATT 1994.   
7.1329  In summary, the relevant object and purpose with  respect to this dispute is the general object 
and purpose of the WTO Agreement  and the GATT 1994 as a whole, which is to provide security and 
predictability in the reciprocal and mutually adva ntageous concessions negotiated by parties for the 
reduction of tariffs and other barriers to trade.  By interpreting the terms of the concession in 
subheading 8471 60 of the EC Schedule to provide du ty-free treatment for all input or output units of 
automatic data-processing machines in light of this  object and purpose, we see nothing that would 
override or contradict our preliminary conclusion that the concession requires duty-free treatment for 
                                                      
1718 Appellate Body Report on Argentina – Textiles and Apparel , para. 47; Panel Report on 
EC - Chicken Cuts , para. 7.319. 
1719 Appellate Body Report on EC – Computer Equipment , para. 82; see also Panel Report on 
EC - Chicken Cuts , para. 7.318. 
1720 See also Panel Report on EC – Chicken Cuts , para. 7.320. 
1721 Complainants' responses to Panel question No. 1; Japan's first written submission, paras. 173-176. 
1722 Para.1 of the ITA. 
1723 Preamble of the ITA.  WT/DS375/R 
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  devices that form part of an "automatic data-pro cessing machine" or an "automatic data-processing 
machine system", and that perform at least one specified function that involves accepting or delivering data in a form (codes or signals) that can be used by the auto matic data-processing machine 
or "automatic data-processing machine system."  
(iv) Subsequent practice (Article 31(3)(b) of the Vienna Convention ) 
Arguments of the parties
 
7.1330  The European Communities  argues that the customs classification practice of the Members, 
including itself, the complainants, and the third partie s demonstrates that they have all considered that 
machines with digital copying capability were at  least not solely classifiable under subheading 
8471 60, but were also prima facie classifiable in HS1996 heading 9009 12 for photocopiers.  
According to the European Co mmunities, this shows a common understanding that multifunctional 
products are not included in the concession for input or output units of ADP machines.   
7.1331  The complainants dispute the European Communities inte rpretation of its own practice and 
refer to various BTI decisions from national custom s authorities within the European Communities to 
demonstrate that the European Communities has not c onsistently maintained that MFMs fit within the 
scope of HS1996 subheading 9009 12.1724  In addition, the complain ants argue that the evidence 
adduced by the European Comm unities does not suggest that, at the time of the negotiations , the 
European Communities believed or had a practice ac cording to which any device without a facsimile 
function is a "photocopier," or according to which,  based on "pages per minute" (much less 12 ppm), 
one could deem all MFMs with a fax function as "photocopiers."1725   
European Communities' Practice 
7.1332  With respect to its own practice, the European Communities cites a 1995 classification 
regulation1726, certain BTIs from national customs authorities1727, the European Court of Justice 
decision in Rank Xerox, and the challenged measures themselves as evidence of its consistent 
practice. 1728    
7.1333  The complainants  however, submit that evidence before the Panel in fact shows that EC 
customs authorities have issued decisions classi fying MFMs in HS1996 subheading 8471 60 during 
and immediately following the ITA negotiations, in particular the United States  and Chinese Taipei 
cite several BTIs from national customs authorities all from 1996 and 1997. 1729 
                                                      
1724 See, e.g., United States' second written submission, para. 116 and fn. 256. 
1725 United States' second oral statement, para. 43. 
1726 This is Commission Regulation No. 1165/95, providing for the classification under CN code 
9009 12 00 of an MFM with a digital copying function (Exhibit EC-70). 
1727 Citing BTIs GB 61762, of 13 July 1994;  GB 62735, of 15 August 1994;  GB 79327, of 16 May 
1996;  and NL 199610225680135-0, of 30 October 19 96 (all submitted as Exhibit EC-79).  (European 
Communities' second written submission, para. 433). 
1728 European Communities' first written submission, paras. 385-389; European Communities' second 
written submission, paras. 431-433 and 190 (commenting on the complainants' responses to Panel question No. 35(b)). 
1729 United States' second written submission, para . 116 (citing Exhibit US -106, containing three 
decisions issued by EC customs authorities - two issued in early 1996 and one in mid-1997 - classifying MFMs in HS subheading 8471 60); Chinese Taipei's first written submission, para. 632 (arguing that CN code 
8471 60 40 was applied by BTI UK 119109 and UK 119108 to MFMs defined as "colour printer/copier and WT/DS375/R 
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Page 388 
  
  7.1334  The European Communities seeks to  rebut the BTIs cited by the complainants by noting that 
two of them are related to ink jet ADP MF Ms, which are not subject to this dispute.
 1730  The European 
Communities clarifies however that "it cannot be excluded that imports of ADP MFMs may 
occasionally have been classified by some local cust oms offices under a different heading prior to the 
conclusion of the ITA." In fact, the European Communities argues, given the difficulties involved in determining the distinctions between the scopes of HS1996 subheadings 8471 60 and 9009 12, "the 
existence of some initial divergences between di fferent local customs offices would be hardly 
surprising, despite the early guidance provided by Regulation 1165/95."
1731  
Complainants' Practice  
7.1335  The European Communities  submits that at the time of the conclusion of the ITA, none of 
the complainants or the third parties was of the view that all ADP MFMs with a digital copying 
function had to be classified necessarily under the HS1996  heading 8471 and that this is evidenced by 
their own classification practice.1732  
7.1336  With respect to the United States, the Eur opean Communities conced es that US customs 
authorities issued a headquarters ruling in 1996 holding that the MFMs at issue had to be classified as 
"printers" under HS subheadi ng 8471 60 pursuant to GIR 3(b) , because the printing components 
conferred their "essential character" to the product. 1733 However, the European Communities contends 
that since the issuance of the 1996 headquarter ru ling, the US customs authorities considered that 
ADP MFMs were prima facie classifiable under HS headings 9009, as "photocopiers", HS heading 
8517, as "fax machines", and HS heading 8471, as "printers". The European Communities also 
contends that the classification of "stand-alone dig ital copiers" in subheadin g 9009 12 demonstrates 
that the United States believed that "digital copying" was a form of "photocopying." According to the European Communities it wasn't until 2002 that US customs authorities modified, once again, their 
interpretation and came to the conc lusion that "digital copying" was not a form of "photocopying" and 
that MFMs with a digital copying function were excluded  from the scope of the HS1996 heading 
9009.
1734 
                                                                                                                                                                     
scanner". Similarly, BTI FR 82152 also classified a "machine combin ant une imprimante et un copier 
informatique (scanner)" under CN code 8471 60 40) (Exhibit TPKM-79). 
1730 European Communities' second written submission, paras. 431-433. 
1731 European Communities' second written submission, para. 433. 
1732 European Communities' second written submission,  paras. 121-123 and para. 190 (commenting on 
the complainants' responses to Panel question No. 35(b ));  European Communities' second oral statement, 
para. 139. 
1733 Ruling HQ 958348, of 17 January 1996 (submitted as Exhibit EC-73). 
1734 The European Communities' first written submission, paras. 390-396 (citing the following US 
customs rulings to support the EC claim that at least until 1994 the United States classified MFMs under HS 
subheading 9009 12:  (i) NY 892321, of 8 December 1993; and (ii) NY 897540, of 9 May 1994 (Exhibit EC - 
72).  Citing the following US customs rulings to support the EC claim that as from 1996 the United States 
classified MFMs with a digital copying function under HS subheading 8471 60 pursuant to GIR 3(b) and that 
the application this GI R presupposes necessarily that the US customs remained of the view that the MFMs at 
issue were prima facie classifiable under HS subheading 9009 12:  (i) NY A88887, of 31 October 1996;  (ii) NY 
B87181, of 2 July 1997;  (iii) NY B89972, of 2 October 1997;  (iv) NY C81666, of 19 November 1997;  (v) NY 
C83939, of 5 February 1998;  (vi) NY D80267, of 20 July 1998;  (vii) NY D80821, of 7 August 1998; (viii) NY D85157, of 24 November 1998;  (ix) NY D85921, of 18 December 1998; (x) NY D87961, of 25 February 1999; 
(xi) NY D88682; of 3 March 1999;  (xii) NY D88835, of 10 March 1999; (xiii) NY E80009, of 1 April 1999; 
(xiv) NY E80011, of 5 Apr il 1999; and (xv) NY F80927, of 27 December 1999 (Exhibit EC - 74).  Citing US 
customs ruling NY B87634, of 23 July 1997 to support its claim that the US customs authorities classified under 
HS heading 9009 certain components  for a digital copier (submitted as Exhibit EC - 75).  And also citing the  WT/DS375/R 
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  7.1337   The complainants, particularly the United States , argue that the European Communities is 
mistaken in its interpretation of the facts and that  there is no evidence of any "practice" that would 
support the European Communities' arguments.
1735 The United States explains that in virtually all the 
US customs rulings from the individual ports no mention is made of HS heading 9009.1736 These 
rulings, instead, classify MFMs in HS subheading 8471 60.  In fact, the European Communities points to nothing more than two opinions predating the IT A negotiations, while ignor ing the large number of 
opinions before the Panel in which the US Custom s and Border Protection (CBP) treated MFMs as 
"input or output units" of HS subheading 8471 60.
1737 
7.1338  With respect to Japan, the European Communities  does not rely on classification decisions 
as Japan asserted that it did not ha ve information with respect to its classification of "digital copiers" 
and ADP MFMs with a copying function prior to the introduction of the HS2007.1738 The European 
Communities instead relies on a proposal Japan made  to the ITA Committee in 1997 with a view to 
including HS1996 subheading 9009 12 within the scope of the ITA, so as to cover "digital copiers".  
The European Communities argues that this suggests that, at that time, Japan took the view that digital 
copiers fell within that subheading.1739 
7.1339  The United States  notes that the European Communities has not cited subsequent practice, 
but rather the absence of Japanese classification practice. Both the United States and Japan  dispute 
the relevance of Japan's proposal during the ITA II negotiations. First, Japan responds that its 
informal proposal to the CITA for the ITA II nego tiation in 1997 was not a reflection of Japan's own 
view on the classification of MFMs, but rather to  address the European Communities' imposition of 
duties on MFMs. Thus, it is not at all suggestive of  any inference regarding the customs practice on 
MFMs at that time.1740 Additionally, the United States recalls  that in those negotiations it was 
recognized that a number of products proposed for inclusion in that future agreement may have 
already been covered by the original ITA. T hus a negotiating proposal says little about what was 
covered by the concessions at issue in this dis pute, and certainly does not indicate a "common, 
concordant, and consistent" practice even on the part of Japan, the Member putting forward the 
proposal.1741 
                                                                                                                                                                     
following US customs HQ rulings to support the EC claim that only as from 2002 the United States started to 
expressly exclude MFMs with a digital copying function from the scope of the HS1996 heading 9009:  (i) HQ 
963680, of 30 August 2002;  (ii) HQ 965697, of 30 August 2002; and (iii) HQ 965527, of 30 August 2002 (submitted as Exhibit EC - 69)).  See also the European Communities' second written submission, paras. 122-
123 and para. 190 (commenting on the complainants' responses to Panel question No. 35(b)). 
1735 United States' second oral statement, paras. 39-40; Japan's second written submission, paras. 29-32; 
Chinese Taipei's second written submission, para. 323. 
1736 We note that in response to the European Communities' question 1 to the complainants, the United 
States explained that the ruling with respect to "stand-alone digital copiers" cited by the European Communities was issued by the individual port director and did not reflect the view of US customs as a whole and was 
subsequently corrected by headquarters into a classi fication under heading 8472. 
1737 United States' second written submission, para. 116;  United States' second opening oral statement, 
para. 42 (citing Exhibits EC-73 and EC-74, containing 16 rulings issued by CBP between 1996 and 1999, which 
the United States contends demonstrates that it classi fies MFMs in HS subheading 8471 60); Japan's second 
written submission, para. 66;  Japan's second oral statement, para. 34. 
1738 Japan's response to European Communities' question No. 1 after the first Panel meeting. 
1739 European Communities' second written submission, paras. 122-123 and 190 (commenting on the 
complainants' responses to Panel question No. 35(b)). 
1740 Japan's second oral statement, para. 34.   
1741 United States' second openin g oral statement, para. 43. WT/DS375/R 
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  7.1340  The European Communities  submits that Chinese Taipei has classified all "digital copiers" 
as "photocopying apparatus" under HS1996 heading 9009 from the time prior to the conclusion of the ITA until the introduction of the HS2007, includi ng ADP MFMs with a copying function under 
HS1996 heading 9009 where, on the basis of a "case-by -case examination", it was determined that no 
function was more "important" than the copying f unction. The European Communities notes that this 
is a very similar approach to that postulated by  the European Communities itself and one that cannot, 
therefore, be reconciled with Chin ese Taipei's position in this dispute.
1742 
7.1341  Chinese Taipei  responds that, by citing Member's pr actice, the European Communities is 
once again trying to reframe this dispute as one over tariff classification  rather than tariff treatment .  
The relevant question is not how Chinese Taipei clas sified a certain product but what tariff treatment 
did it accord to the product concerned. For instance,  Chinese Taipei may well have classified "digital 
copiers" under HS heading 9009 in view of th e WCO discussions on what constituted an "optical 
system" or even by applying the residual classifica tion rule contained in GIR 3(c). However, this does 
not mean that Chinese Taipei considered that "dig ital copying" was equivalent to "photocopying". It 
merely indicated that Chinese Taipei had to decide  on a uniform classification for such products and 
that it would be in compliance with its WTO obliga tions as long as it granted a zero tariff to such 
products.  Since HS heading 9009 is subject to a zero tariff in its WTO Schedule, Chinese Taipei 
considered that a classification of  "digital copiers" in this head ing was in compliance with its WTO 
obligations.1743 Additionally, the United States  argues that the classification Chinese Taipei was 
referring to in its response to the question from the European Communities was that of "single-
function digital copiers" and that a "case-by-case"  approach to classification cannot support the 
conclusion that there exists a "practice" with respect to the classification of MFMs. 1744 
Third Parties' Practice 
7.1342  Finally, with respect to the third parties, the European Communities  submits that, among the 
third parties to this dispute, Singapore has expressl y confirmed that it classified all "digital copiers" 
under HS1996 heading 9009 both before and after th e conclusion of the ITA and that none of the 
other third parties, despite being specifically ask ed by the European Communities, have provided 
evidence that they did not classify digital copier s under HS1996 heading 9009 or that they classified 
all ADP MFMs with a copying function under HS1996 heading 8471.  The European Communities 
therefore invites the Panel to draw appropriate inferences from these third parties' deliberate 
silence.1745 
7.1343  The United States  notes that the European Communities is attempting to rely on the absence 
of classification practice by the third parties, which cannot support the conclusion that there exists a "common, concordant, and consiste nt" practice on the part of other WTO Members that would give 
support to the European Communities'  interpretation of the concessions.  As with Chinese Taipei, the 
United States notes that Singapore's response to th e European Communities question related to the 
classification of " single-function digital copiers", devices that are not MFMs, the product at issue in 
this dispute.  The United States further notes that , with respect to MFMs, Singapore states that it 
                                                     
 
1742 European Communities' second written submission, paras. 122-124 and 190 (commenting on the 
complainants' responses to Panel question No. 35(b)). 
1743 Chinese Taipei's response to European Communities' question No. 1 to the complainants; Chinese 
Taipei's second oral statement, para. 60. 
1744 United States' second opening oral statement, para. 41.  The Panel understands that the United 
States' reference here to a "EC measure" means the CN2007 , one of the measures at issue in this dispute with 
respect to MFMs. 
1745 European Communities' second written submission, paras. 122-123 and 190 (commenting on the 
complainants' responses to Panel question No. 35(b)).  WT/DS375/R 
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  classified devices based on the "physical com ponent which imparted the device its essential 
character."  Thus these answers do not support the c onclusion that there exists a "practice" with 
respect to classification of MFMs.
1746 
Consideration by the Panel  
7.1344  As noted above, pursuant to Article 31(3)(b) of the Vienna Convention  the panel will take 
into account, together with context any subsequent  practice in the application of the treaty which 
establishes the agreement of the par ties regarding its interpretation. 
7.1345  We recall that "'subsequent practice' in th e application of a treaty "constitutes objective 
evidence of the understanding of the parties as to the meaning of the treaty."1747 We recall that for 
something to qualify as "subsequent practice" within  the meaning of Article 31(3)(b) of the Vienna 
Convention it must be "...'concor dant, common and consistent' seque nce of acts or pronouncements 
which is sufficient to establish a discernible pattern implying the agreement of the parties [to a treaty] 
regarding its interpretation".1748  We are also mindful, particularly in light of the evidence adduced by 
the parties, that "[i]nconsistent classification prac tice . . . cannot be relevant in interpreting the 
meaning of a tariff concession".1749 
7.1346  As to what may qualify as "common" and "concor dant" practice, the Appellate Body stated 
that, although not each and every party must have e ngaged in a particular practice for it to qualify as a 
"common" and "concordant" practice, it would be  difficult to establish a "concordant, common and 
discernible pattern" on the basis of acts or pronouncemen ts of one, or very few parties to a multilateral 
treaty, such as the WTO Agreement .1750  The Appellate Body further found that if only some of WTO 
Members have actually engaged in a certain practice,  that circumstance may reduce the availability of 
such "acts and pronouncements" for purposes of dete rmining the existence of "subsequent practice" 
within the meaning of Article 31(3)(b) of the Vienna Convention.   
7.1347  Accordingly, on the basis of guidance provided by the Appellate Body on the assessment of 
subsequent practice for interpreting a treaty provisi on, the Panel must determ ine whether the evidence 
of practice in the European Communities, the Unit ed States, Japan, Chinese Taipei and the third 
parties constitutes evidence of "consistent, common and concordant" classification practice on the part 
of the Members with respect to the products at i ssue during the period between the submission of the 
EC Schedule until the present. 
7.1348  We are not convinced that any of the evidence adduced can demonstrate a "consistent, 
common, and concordant" practice.  Indeed, the BT Is submitted by the complainants demonstrate that 
even within the European Communities, national customs authorities did not necessarily follow the 
Commission's view on the classification of multifunction digital machines with a copying function.  Likewise, in the United States, while customs headqua rters may have had a cons istent view, it seems 
that at least one port director issued contrary cl assification rulings.  We have no evidence of Japan's 
classification practice and we do not accept that a negotiation proposal in the ITA II for all the 
                                                     
 
1746 United States' second opening oral statement, paras. 41 and 43.  The Panel understands that the 
United States' reference here to a "EC measure" means the CN2007, one of the measures at issue in this dispute 
with respect to MFMs. 
1747 Appellate Body Report on Chicken Cuts , para. 255, citing Yearbook of the International Law 
Commission (1966), Vol. II, page 219, para. (6); see also Panel Report on China – Auto Parts , para. 7.702. 
1748 Appellate Body Report on Japan – Alcoholic Beverages II , para. 106; Appellate Body Report on 
US – Gambling , para. 192. 
1749 Appellate Body Report on EC – Computer Equipment , para. 95. 
1750 Appellate Body Report on EC – Chicken Cuts, para. 259. WT/DS375/R 
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  participants to provide duty-free treatment for pr oducts in subheading 9009 12 can serve as evidence 
of such practice.   
7.1349  We do not believe the evidence of Chinese Taip ei's classification practice, which is the 
practice of only one Member, can add to our understanding of what the Members intended when 
providing a concession for "input or output units" of computers in subheading 8471 60.  We recognize that, because WTO tariff concessions are normally synon ymous with the tariff headings in the HS, the 
classification practice of the Members may be releva nt in determining their common intentions with 
respect to a particular concession.  However, the relevance of classification practice diminishes when 
the concession on tariff treatment for both headings  is the same, as is the case in Chinese Taipei's 
schedule for subheadings 8471 60 and 9009 12 , i.e., zero. 
7.1350  With respect to the third parties' classifi cation practice, we note the following.  While 
Singapore's classification practice of "digital copiers"  in HS1996 heading 9009 may be relevant for 
understanding the common intentions of the Members w ith respect to the scope of that heading, we do 
not believe it assists us in answering the questi on of what the Members meant by using the term 
"input or output units" of an ADP machine in subhe ading 8471 60, because it relates to a device that 
cannot connect to an ADP machine.  Additionally, we have no evidence of the practice of the other 
third parties.  We see no need to make an "appropr iate inference" from this lack of evidence as there 
are a variety of reasons why the third parties may not have responded to the European Communities' 
question with regard to their practice of classifyi ng stand-alone digital copi ers which would have no 
bearing on the common intention of the Members in  inscribing a concession for "input or output 
units" in their schedules.   
7.1351  Finally, we note that whatever evidence of practice we do have is from a limited group of 
Members.  We are aware that the European Co mmunities, the United States and Japan were the 
driving forces behind the negotiation of the origin al ITA agreement.  However, as the European 
Communities rightly pointed out, the concessions contained in these headings and subheadings are not 
limited to the participants of the ITA.  They exist in most Members' schedules and many Members 
have been faced with the issue of determini ng whether the scope of the concession in HS1996 
subheading 8471 60 covers a particular product that is  presented at their border.  Given the ubiquity of 
the products at issue we can only surmise that this has occurred more often and in more Members than 
the limited information presented to this Panel.  A dditionally, we note that the classification practices 
presented to us are by no means "consistent, co mmon and concordant", and we cannot discern a 
pattern implying the agreement of the parties to the WTO Agreement  and the GATT 1994 regarding 
the interpretation of the concession in 8471 60 from these documents.  
7.1352  Based on the foregoing, we do not think that th e evidence adduced by the complainants or the 
European Communities satisfies the co nditions for being considered s ubsequent practice.  Therefore 
we do not need to consider whether such "practi ce" informs our conclusions above made based on our 
interpretation of the ordinary meaning of the terms of subheading 8471 60 in its context and in light of 
its object and purpose. 
(v) Other Arguments 
Arguments of the Parties
 
7.1353  Japan and Chinese Taipei  argue that the new heading 8443 and its explanatory note as well 
as the redrafted Chapter Note 5( D) to Chapter 84 in the HS2007 provide further interpretative  WT/DS375/R 
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  guidance to determine the meaning of the concessi ons for "units thereof" in heading 8471 and 
"photocopying" in heading 9009, as those words were used in 1996.
1751   
7.1354  In particular Japan and Chinese Taipei argue that heading 8443 in HS2007 confirms their 
understanding that the concession in HS1996 subhead ing 8471 for "input or output units" included 
multifunction machines, even if they had a copying function.  According to Japan, the fact that the language of these new codes refer to devices that can perform multiple functions and also make 
explicit that they need to be "capable of c onnecting" to an automatic data-processing machine, 
confirms that the defining feature of ADP MFMs is their ability to be connected to an automatic data-
processing machine or to a network.
1752 
7.1355  Additionally, Japan and Chinese Taipei argue th at the explanatory note to heading 8443 in 
HS2007, provides further interpretative guidance to  understand the meaning and scope of concessions 
made in the EC Schedule based on the HS 1996 headings 8471 and 9009 because the 2007 HSEN 
draws a clear and explicit distinc tion between "digital copiers" and "photocopiers," discussing each of 
them in separate categories unde r the broader category "copying machines,"  which according to 
Japan and Chinese Taipei strongly suggests that this  distinction already existed under the 1996 HSEN 
to heading 9009 and that such distinction was simp ly continued over into the 2007 HSEN to heading 
8443, in more explicit terms.1753 
7.1356  Finally, with respect to the HS2007 Chapter No te 5(D) to Chapter 84, Chinese Taipei argues 
that by finding it necessary to expressly exclude MF Ms from the scope of heading, the new language 
of this Chapter Note gives further support to Ch inese Taipei's argument that, under the HS1996-based 
EC concessions, ADP MFMs properly fell under heading 8471.1754 
7.1357  Initially, the European Communities  argues that subsequent ve rsions of the HS are not 
relevant to the interpretation of the concessions at issue in this di spute which were made on the basis 
of the HS1996.1755  The European Communities also notes th at the language of the new heading 8443 
and HSEN to heading 8443 was a result of a "pra gmatic" and "hard fought" compromise reached at 
the WCO that involved "concessions on both sides" and that therefore resulted in this language being 
"studiously ambiguous" with regard to the issues at hand.1756  The European Communities further 
submits that, in any case, it does not believe that the HS2007 material cited by the complainants has 
the meaning they argue.  
7.1358  In particular, the European Communities argues that from the mere fact that the new HS2007 
subheadings 8443 31, 8443 32 and 8443 39 distingui sh between "connectable" and "non-connectable" 
MFMs it does not follow logically that all connectable MFMs were previously classified under 
                                                      
1751 Japan's first written submission, paras. 166 and 171; Chinese Taipei's first written submission, 
paras. 642-647; Chinese Taipei's response to Panel ques tion No. 35(b); United States' response to Panel question 
Nos. 132 and 135.  The United States notes that the HS2007 materials support its interpretation of "digital copying" and "photocopying", however it also notes that it has not relied on the 2007 HSEN to heading 8443 in 
its arguments in this dispute. 
1752 Japan's first written submission, para. 167; Chinese Taipei's first written submission, paras. 
643-644. 
1753 Japan's first written submission, paras. 168-171; Japan's second written submission, paras. 71-73;  
Japan's response to Panel question No. 135;  Japan's co mments on the European Communities' response to Panel 
question No. 134; Chinese Taipei's first written submission, paras. 642-647; Chinese Taipei's second oral 
statement, para. 59;  Chinese Taipei' response to Panel question No. 135. 
1754 Chinese Taipei's first written submission, paras. 645-646. 
1755 European Communities' first written submission, para. 407. 
1756 European Communities' response to Panel questions No. 35(b) and 135. WT/DS375/R 
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  HS1996 heading 84.71.  Since the purpose of cr eating new positions under the heading 84.43 was 
precisely to resolve a dispute arising from the lack of clarity of the criteria used in the HS1996, it is to 
be expected that the new positions in the HS2007 use different criteria.
1757  
7.1359  As to the 2007 explanatory note to heading 8443 in the HS2007, the European Communities 
submits that the purpose of that section of the expl anatory note was simply to draw a "non-exhaustive 
list" of different types of apparatus included within this "group" of machines.1758  Because the list is 
non-exhaustive the description that follows the term "photocopiers" does not necessarily imply that the "digital copiers" mentioned in the explanatory note are not "photocopying apparatus".
1759  
Additionally, the European Commun ities argues that the list in the e xplanatory note, even if it were 
exhaustive, is much narrower than that included in the 1996 explanatory note to heading 9009.  The European Communities submits that it would be improper to prejudge whether the process followed 
by "digital copiers" may be characterized as "indi rect" for the purposes of the HS1996, where the term 
"photocopier" is used in a broader sense than in the 2007 HSEN.
 1760 
7.1360  Finally, as to the new HS2007 Note 5(D) to Ch apter 84,  the European Communities contends 
that the reference to "copying machines" and MFMs made therein, merely seeks to dispel any possible 
remaining doubts with regard to their classificati on.  Since the old HS1996 heading 9009 was entirely 
deleted, it was neither necessary nor possible to in sert equivalent language excluding expressly from 
its scope digital copying machines or MFMs with a copying function.1761 
Consideration by the Panel  
7.1361  The Panel notes that Japan and Chinese Taipei have  not specified that the Panel should 
consider the relevance of the HS2007 as supplementa ry means of interpretation under Article 32 of 
the Vienna Convention. 
7.1362  We recall that under Article 32 of the Vie nna Convention, recourse may be had to 
"supplementary means of interpretation" in two di stinct circumstances, namely, either to confirm  the 
meaning of the treaty terms resulting from the applica tion of Article 31 or to determine such meaning, 
but only if the Article 31 interpretation left the meaning ambiguous or obscure, or led to a result 
manifestly absurd or unreasonable.  We recall fro m paragraph 7.585 above that the Appellate Body 
has indicated that documents published, events  occurring, or practice followed subsequent to  the 
conclusion of the treaty may be relevant for consid eration under Article 32 of  the Vienna Convention 
to the extent that the instrument or document reflec ts the "common intentions of the parties' at the 
                                                      
1757 European Communities' first written submission, para. 408, fn. 281. 
1758 The European Communities also contrasts this language with the description of "Electrostatic 
printers" under "item (1)" of "Section (A)" of the 2007 HSEN, which is introduced by the terms "Electrostatic 
printers, which employ a process…".  Additionally, argues the European Communities, the non-exhaustive 
nature of the list of "copying machines" is further confirmed by the second (and last) paragraph of "Section B" of the 2007 HSEN, which states that "[t]his group also includes contact photocopying apparatus and thermo 
copying-apparatus."  The "group" referred to in that second (and last) paragraph of "Section (B)" is the group of 
"copying machines", and not only the "photocopiers" described under "item (2)" of "Section (B)".  (European Communities' response to Panel question No. 135). 
1759 European Communities' response to Panel question No. 135. 
1760 European Communities' first written submission, para. 408, fn. 281;  European Communities' 
response to Panel questions No. 35 and 135. 
1761 European Communities' first written submission, para. 408, fn. 281.  WT/DS375/R 
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  time of the conclusion" of the treaty.
1762  The Appellate Body emphasized however, that such an 
assessment must be determined on a case-by-case basis.   
7.1363  Furthermore, as to what material can qualify as "supplementary means of interpretation", we 
recall the Appellate Body's clarification in EC – Chicken Cuts  that the reference made in Article 32 to 
"preparatory work of the treaty" and "circumstanc es of its conclusion" is not exhaustive, indicating 
that "an interpreter has a certain flexibility in co nsidering relevant supplementary means in a given 
case so as to assist in ascertaining the common intentions of the parties."1763   
7.1364  It follows therefore that the fact that the HS2007 is not preparatory work of the treaty or 
circumstances of the conclusion of the treaty, does not per se  disqualify it from being considered  
supplementary means of interpretation under Article  32.  Nor can the fact that the HS2007 occurred 
subsequently to the conclusion of the treaty be per se  a reason to disqualify it under Article 32, so 
long as it serves to indicate what were the "common intentions of the parties" at the time of the conclusion of the treaty, i.e. at the time they bound their Schedules.
 1764   
7.1365  We note that the HS is constantly evolving and that, in fact, the HS2007 is the second update 
to the HS since 1996.1765  If the current version of the HS or its Chapter or Explanatory Notes 
contained information that indicated the common inten tions of the parties at the time of the conclusion 
of the treaty it could serve as a supplementary means of interpretation.       
7.1366  However, we conclude that the materials the parties have raised do not indicate the common 
intentions of the parties in 1996 when they we re drafting their Schedules.  The change from the 
HS1996 (and indeed the HS2002) to the HS2007 that is re levant for our analysis is the elimination of 
subheading 9009 12 and the redrafting of headings 8471 and 8443, such that heading 8443 now covers certain products such as stand-alone and multifunction devices that can perform the functions 
of printing, scanning, copying or facsimile transm ission, some of these devices being connectable to 
computer, some not.  The parties have raised the 2007 HSEN to 8443 as additional interpretative 
support for their positions with respect to the scope of the obligations in both 8471 60 and 9009 12 as 
they existed in the 1996 EC Schedule.   
7.1367  Although the changes in the HS are certainly relevant to the current classification of the 
products at issue in this dispute and the explanatory note does contain similar language to that in prior 
versions of the HS we see nothing in the explanat ory note to indicate that it is a reflection of the 
common intentions of the parties in 1996, such as an  explanation that the 2007 HSEN, as part of the 
process of combining the coverage of the two subh eadings, was codifying the distinctions between 
subheadings HS1996 subheading 8471 60 and 9009 12 as they existed in 1996 or if the Note 5(D) to Chapter 84 of the HS2007 specifically stated that the products not to be classified in 8471 had been 
classified therein in previous versions.  Howeve r, the HSEN and Chapter Note do not say that.  
Indeed, we understand that the development of  the new subheading 8443 31 was the result of 
consistent disagreement among the parties as to the scope of HS1996 subheadings 8471 60 and 9009 
12 respectively, and whether there was any overlap.  Therefore, we conclude that this particular 
                                                     
 
1762 Appellate Body Report on EC – Chicken Cuts , para. 305. 
1763 Appellate Body Report on EC – Chicken Cuts , para. 283 and para. 305, fn. 574 (relying on the use 
of the word "including" in the text of Article 32 as an indication of its non-exhaustive nature). 
1764 Appellate Body Report on EC – Chicken Cuts , para. 305 (footnote omitted). 
1765 We note that the HS Committee undertakes a period ic review of the HS, approximately every 4 to 6 
years.  Since the version of the HS that came into  force on 1 January 1996 (the version under which the 
concessions of this case were based on), new versions of the HS have come into force on 1 January 2002 (HS 2002) and 1 January 2007 (HS2007).  It  is envisaged that a fifth set of amendments will enter into force on 
1 January 2012. WT/DS375/R 
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  HS2007 heading, HSEN to that heading and the new Note 5 to Chapter 84 cannot serve as  
supplementary means of interpreting the concessions  the European Communities made in its schedule 
in 1996.     
(vi) Overall conclusions on the ordinary meaning of the terms of HS1996 subheading 8471 60 
and CN 8471 60 in the EC Schedule 
7.1368  Our analysis of the text of the tariff concession in its context and in light of its object and 
purpose led us to conclude that the ordinary mean ing of the concession is such that it applies to 
devices that form part of an "automatic data-pro cessing machine" or an "automatic data-processing 
machine system", and that perform at least one specified function that involves accepting or 
delivering data in a form (codes or signals) that can be used by the auto matic data-processing machine 
or "automatic data-processing machine system".  We are also of the view that not all devices capable 
of connecting to an ADP by accepting or delivering data from or to an ADP necessarily  qualify as an 
input or output unit of heading 8471.  We did not find any relevant subsequent practice on the matter.  
Furthermore, the documents proposed as supplementa ry means of interpretation by the parties cannot 
serve as such. 
7.1369  Having now established the scope of the concession,  i.e., the type of products covered by the 
European Communities' obligation under GATT Articl e II to provide duty-free treatment to products 
in subheading 8471 60 of its Schedule,   we will turn to an analysis of whether the complainants have 
demonstrated that the products at issue, ADP MF Ms, fall within the scope of that obligation. 
(b) Whether ADP MFMs are "input or output units" within the meaning of 8471 60 
7.1370  The complainants  assert that ADP MFMs are "input or output units" within the meaning of 
subheading 8471 60 because they "receive signals fro m the computer and provide the results to the 
user in the form of a printed page, and take th e information from hard copy and process it into an 
electronic file provided to the computer for storage or  transmission, or to be converted into a printed 
image or deleted."
1766  Additionally, Japan  and Chinese Taipei  contend that the products are also 
"printers" which are an acknowledged subset of "i nput or output units" as evidenced by the European 
Communities creating an eight-digit tariff item number for printers under the relevant subheading, i.e., 
tariff item number 8471 60 40.   
7.1371  The European Communities' asserts that beca use the multiple functions of the ADP MFMs 
include copying, there is a ques tion whether they are properly cl assifiable for customs purposes as 
"output units" under HS1996 subheading 8471 60 or as "photocopying apparatus" under HS1996 
subheading 9009 12.  The European Communities argu es that a proper application of the classification 
rules of the HS will lead to the conclusion that the products should be classified in subheading 9009 
12 and therefore, the European Communities is not obligated to provide duty-free treatment for the 
products.     
                                                      
1766 United States' first written submission, para. 153 (citing the definition McGraw-Hill Dictionary );  
United States' second oral statement, para. 109;  Japa n's first written submission, paras. 77, 87-88 and 90;  
Japan's first oral statement, para. 11 (but also further indicating that the predominant printing function of 
ADP MFMs indicates that they fall under the ordinary me aning of "output units – printers");  Chinese Taipei's 
first written submission, paras. 543-545, 585.  Japan more explicitly claims that these concessions cover all 
MFMs "with a digital connectivity", i. e. ADP MFMs. (Japan's first written s ubmission, para. 77;  Japan's second 
written submission, para. 39;  Japan's response to Panel question No. 110).  WT/DS375/R 
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  7.1372  As a general proposition, if ADP MFMs are de termined to be within the scope of the 
concession in subheading 8471 60 th en the European Communities is obliged to provide them with 
duty free treatment pursuant to the bindings in its Schedule.   
7.1373  Normally, once the Panel has reached a conclu sion on whether the products are within the 
scope of the tariff concession the next step would be to compare the obligation in the EC Schedule 
with the treatment provided for in the European Co mmunities' measures in order to determine whether 
that treatment is less favourable than  and charges duties in excess of that set forth in its schedule in 
contravention of its obligations in Articles II:1(a)  and (b) of the GATT 1994. However, in this case, 
the European Communities asserts  because ADP MFMs are classifiable under another tariff 
subheading means that the appropriate tariff conc ession is not necessarily the one put forth by the 
complainants. We will address the issue of whether th e products at issue fall within more than one 
tariff concession and the ramifications of that for an analysis under Article II of the GATT 1994 in 
section VII.G.3(c) below. We begin our analysis , however, with the question of whether the ADP 
MFMs at issue are covered by the tariff con cession in subheading 8471 60, given our understanding 
of the scope of that concession as set out above. 
(i) Arguments of the Parties 
7.1374  The complainants  describe MFMs, in general, as "digita l devices" that perform, in addition 
to printing , one or more of the functions of scanning , copying , or facsimile transmission .  They 
further describe these machines as "gener ally" incorporating:  (i) an "i nput unit" (i.e., a "scanner unit" 
to convert information into digital input for the device) and (ii) an "output unit" (i.e., a "printer 
unit"
1767 that allows the digital output from the device to be printed in paper form).  The complainants 
argue that once a document has been converted in to "digital information" by the MFM, such 
information can be "stored, manipulated on the co mputer, transmitted over phone lines, or sent over 
the internet."1768  The complainants describe ADP MFMs, in particular, as MFMs that are "capable of 
directly connecting to an automatic data-processing machine or to a computer network in a digital 
form."1769  Chinese Taipei further adds that these machin es "normally incorporate," in addition to the 
printing  function, a scanning  and copying  function, and they "sometimes" also have a fax function.1770 
7.1375  The European Communities , however, argues that contrary to the complainant's assertions 
MFMs are not 'technologically advanced versions of printers' but rather are best described as "the 
result of a process of technological convergence whereby different devices, each with a specific 
function (photocopiers, printers and/or facsimile m achines), have been merged into a single machine 
capable of performing simultaneously various functions."1771 The European Comm unities asserts that 
these machines were developed from a "photocopier basis."1772 The European Communities agrees 
with the complainants that the prin t engine is an important part of the MFM, however it argues that it 
                                                      
1767 Chinese Taipei further adds, more specifically, that all MFMs at issue in the present dispute 
incorporate an "electrostatic print unit." (Chine se Taipei's first written submission, para. 17) 
1768 United States' first written submission, paras. 68-69, 71; Japan's first written submission, paras. 17-
19;Chinese Taipei's first written submission, paras. 17-20, 551 and 483). 
1769 United States' first written submission, paras. 68-69, 71; Japan's first written submission, paras. 17-
19;Chinese Taipei's first written submission, paras. 17-20 and 483). 
1770 Chinese Taipei's first written submission, para. 20. Chinese Taipei further explains that 
ADP MFMs make copies when their "scanning unit" and "printing unit" work "in tandem". This is done, elaborates Chinese Taipei, when "the digital image produced by the scanning unit is sent directly to the printing 
unit" and, as a result, "one or more copies of the digiti zed image will be printed directly." (Chinese Taipei's first 
written submission, para. 551). 
1771 European Communities' first written submission, para. 330.   
1772 European Communities' first written submission, para. 331. WT/DS375/R 
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  is a necessary component, not only in printers, but in stand-alone digital photocopiers and facsimile 
machines. The European Communities argues that a lthough the copying function (i.e., the instant 
reproduction of an original document) involves the use of a print engine it is distinct from the function 
of printing data received from an ADP machine.
1773 
7.1376  The copying function of ADP MFMs is central to the European Communities' argument that 
these products are not properly classified in subh eading 8471 60. Relying on the decision of the 
European Court of Justice in the Kip case, the European Communities argues that the products at issue 
cannot be directly classified under subheading 8471 60 unless it is shown that the copying function is 
secondary in relation to the functions involving the use of an ADP. Additionally, the European 
Communities contends that if th e copying function is "equivalent" then the goods are classified 
pursuant to GIR 31774 and may still be classified under heading 9009 in accordance with GIR 3(c).1775  
7.1377  The European Communities concedes that all the MFMs at issue meet conditions (b) and (c) 
of Note 5(B). Therefore, the central point of  disagreement between the complainants and the 
European Communities is whether, via the proper app lication of the rules of the HS, in particular 
Note 5(B)(a) to Chapter 84, the MFMs at issu e can be classified under HS1996 subheading 8471 60. 
7.1378  According to the United States, ADP MFMs respect all the conditions in Note 5 to 
Chapter 84 and hence qualify as computer "un its", under HS1996 subheading 8471 60 in the EC 
Schedule.  In particular, the United States argues that, as required by Chapter Note 5(B), ADP MFMs are "of a kind solely or principally used" in an  automatic data-processing machine,  "connectable" to 
an automatic data-processing machine, and "able to a ccept or deliver data in a form (codes or signals) 
which can be used by the system".  Furthermore,  the  United States, argues that ADP MFMs are not 
"machines performing a function other than data procession" under Note 5(E), and that this note 
cannot serve as a basis for classifying the machines elsewhere.
1776 
7.1379  All three complainants focus on the fact that the machines are made up of "printer modules" 
and "scanning modules" which are designed to work with an automatic data-processing machine, to 
support their contention that these devices are "pri ncipally used" with an automatic data-processing 
machine or computer system. 1777  The complainants also point out that the printing function is the 
most significant and that the print module is by far the largest component of the MFM.1778   
                                                      
1773 European Communities' first written submission, paras. 336-337. 
1774 The European Communities argues that, when the copying function of the MFMs is not secondary 
in relation to their ADP functions, th ey are prima facie classifiable under  the HS96 headings 8471 and 9009 
(and under the heading 8517 as well, if the MFM has al so a fax function). It becomes necessary, therefore, the 
European Communities argues, to classify such MFMs in accordance with GIR 3.  The European Communities 
notes that the heading for photocopiers (9009) occurs in the HS96 after the headings for printers (8471) and fax 
machines (8517). The European Communities considers GIR3(a) and (b) irrelevant. Therefore, it argues, in 
accordance with GIR 3(c) , the MFMs at issue must be classified  under HS96 9009 and, more specifically, 
within the subheading 9009 12 (European Communitie s' first written submission, paras. 435-441). 
1775 European Communities' first written submission, paras. 359, 364-365. 
1776 United States' first written submission, paras. 161 -162 (also referring to the similar arguments it 
makes with regard to its FPDs claim based on the con cession in EC Schedule in CN code 8471 60 90). 
1777 Chinese Taipei's first written submission, paras. 603-611; Chinese Taipei's second written 
submission, paras. 328-332. 
1778 United States' first written submission, para. 157;  Japan explains that Note 5(B)(a) requires only 
that the device be "of a kind" principally used with a computer.  Japan considers that the qualifier "of a kind" in 
Note 5(B)(a) serves to "limit the potentially broader lang uage" of the phrase "solely or principally used," which 
follows it.  In other words, explains Japan, the device need not to be "actually used" principally with a computer.  
Similarly, Note 5(B)(b) requires only that the device be "connectable," not that it actually be "connected", and  WT/DS375/R 
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  7.1380  According to the complainants "printing" a nd "scanning" are the objective characteristics of 
these devices and "digital copying" is simply an "incidental function" that occurs because of the 
combination of these two core objective characteristics.
1779  "Printing" and "scanning" are, thus, the 
tangible features of MFMs that provide the core functions that can operate on their own.  The 
complainants note that a pre-existing digital file ca n be printed and that an original document can be 
converted into a digital file and then stored.  Both the printing and scanni ng functions – and the 
equipment that makes these two functions possibl e – thus fall squarely within HS1996 heading 8471 
as "units" of an automatic data-processing machine.  In Japan's view, ADP MFMs do not cease being 
"units" of an automatic data-processing mach ine simply because these two functions, operating 
together – with no additional equipment – can al so provide a digital copying function that can mimic  
"analogue" photocopying. 1780   
7.1381  Indeed, Japan asserts that the "printer unit" of  an ADP MFM works just as any other "single 
function computer printer", in particular given th at in both cases there exists a "laser scanning unit" 
("LSU") that allows the device to "receive digital output from the computer and convert that digital 
output into laser light that can then be used to  create the printed image on paper or some other 
medium."  Japan submits that any other features MFMs may have simply "complement this basic 
printing function and simply increase the functionality of the device."  Japan further submits that an 
ADP MFM's "printer unit" can operate "without any t echnical involvement" of its other units, i.e. the 
"scanner unit" and/or "fax unit".  Japan thus consid ers that an ADP MFM's "printer unit" "is basically 
a computer printer."1781 
7.1382  Chinese Taipei  argues that, regardless of the application of Note 5(B), Note 5(D) indicates 
that apparatus that can print  from computers (like ADP MFMs) are "in all cases" to be classified in 
HS1996 heading 8471, even though they are not "solely or principally used" with an automatic data-processing machine.  Accordingly, ADP MFMs ar e nevertheless classifiable under subheading 8471 
60, more specifically under tariff item number 8471 60 40.
1782 
                                                                                                                                                                     
Note 5(B)(c) requires only that the device be "able" to accept or deliver signals.  Japan thus concludes that the 
rule of Note 5(B)(a) follows the Appellate Body logic in EC - Chicken Cuts , according to which it is necessary 
to look to the product based on its "objective characteristic s" at the time it crosses the border.  Japan argues that 
this means that even if a particular MFM might "actually" be used more often in some "non-computer use," the 
device would still belong under HS1996 heading 84.71, since it is of "a kind" principally used with a computer 
based on its "objective characteristics." (Japan's seco nd written submission, para. 101 and Japan's comments on 
the WCO responses to Panel questions, page 2).  See al so Japan's second written submission, footnote 70 to 
para. 94. 
1779 Chinese Taipei's second written submission, para s. 328-332.  Chinese Taipei quotes the following 
part of this European Court of Justice ruling to support such assertion:  
 
"[a]ccordingly, those machines are likely simultaneously to  meet the three requir ements laid down in 
Note 5(B)(a) to (c) to Chapter 84 of the CN for them to be considered units forming part of an automatic data-processing system, that is to say to be of a kind used solely or principally in an automatic data-processing 
system, capable of connection to the ce ntral processing unit and receiving or supplying data in a form usable by 
that system." 
(European Court of Justice (Kip and Hewlett Packar d), para. 41 (Exhibit TPKM-63).  See also, above 
at paragraph 7.1288. 
1780 Japan's second written submission, paras. 97-104.  See also Japan's first written submission, paras. 
146-154 (including para. 149, fn. 76);  Japan's first oral statement, para. 29;  Japan's second written submission, 
para. 83;  Japan's second oral statement, paras. 44-46. 
1781 Japan's first written submission, paras. 91-95. 
1782 Chinese Taipei's first written submission, paras. 603-611; Chinese Taipei's second written 
submission, paras. 328-332. WT/DS375/R 
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  7.1383  The United States concurs, arguing that if it is  undisputed that printers and scanners are 
covered by the European Communities' concession it is then illogical to conclude that when these 
products are combined into a single unit, that a co mbined unit becomes a "photocopier" rather than an 
"input or output unit."
1783  Therefore, the possible use of an ADP MFM as a digital copier cannot 
somehow trump its objective characteristics of having  a "printer unit" to output digital files as paper 
documents and having a "scanner unit" to create digita l files from paper originals.  In this regard, 
Japan recalls that the Appellate Body has focused on the objective characteri stics of the device at 
issue, not its actual use.  In the present case, clai ms Japan, the objective characteristics of ADP MFMs 
– their printer and scanner units – are both either direc tly or indirectly part of the device as a "printer."  
The other functions do not change these objective characteristics.1784 
7.1384  Additionally, Japan  further asserts that the language of Note 5(C) confirms that ADP MFMs 
are computer "units" under HS1996 heading 8471 even if imported without  an automatic data-
processing machine and it further claims that ADP  MFMs cannot be excluded from being such an 
"unit" by virtue of Note 5(E), since their "digita l copy function" does not work "in conjunction with" 
an automatic data-processing machine and does not th erefore perform a "specific function other than 
data-processing."1785   
7.1385  The European Communities submits that the complainants fail to properly take into account 
Note 5(B) to HS1996 Chapter 84.  According to the European Communities, pursuant to that note, the 
MFMs at issue cannot be classified under HS1996 subheading 8471 60, unless it can be shown, on a 
case-by-case basis, that the copying function of each particular kind of MFM is secondary in relation 
to its ADP functions.1786  The European Communities asserts that  the relevant criteria for conducting 
such a case-by-case analysis, as noted by the European Court of Justice in its Kip judgment, may 
include print and reproduction speeds, the existence of  an automatic page feeder for originals to be 
photocopied or the number of page feeder trays.  The European Communities states that this list of 
criteria is not exhaustive and other objective ch aracteristics of MFMs may be relevant as well.1787  The 
European Communities does not consider that the actual use  given to the products is relevant because, 
as confirmed by the Appellate Body in EC – Chicken Cuts , in characterizing a product for the 
purposes of tariff classification, it is necessary to look  exclusively at the "objective characteristics" of 
the product in question when presented for classification at the border.1788 
7.1386  According to the European Communities, a "unit"  may not be regarded as being part of an 
automatic data-processing system and, hence, as covered by HS1996 subheading 8471 60, unless it 
meets each of the three conditi ons specified in Chapter Note 5(B).  The European Communities 
argues that, whether MFMs also satisfy the condition  in sub-paragraph (a) w ill depend on the "nature" 
and the "relative importance" of the functions  performed by each particular kind of MFM.1789   
7.1387  The European Communities argues that, as admitte d by Japan, the digital copying function of 
an ADP MFM works independently from an automa tic data-processing machine and, indeed, such 
function could continue to be ope rated even if the ADP MFM were disconnected from the computer.  
Therefore, in so far as an MFM is used for c opying, it cannot be considered to be "used in a 
                                                      
1783 United States' first oral statement, para. 35. 
1784 Japan's second written submission, paras. 79 (third bullet point), 94-95. 
1785 Japan's first written submission, paras. 146-154 (inc luding para. 149, fn. 76);  Japan's first oral 
statement, para. 29;  Japan's second written submission, paras. 83 and 97-98. 
1786 European Communities' first written submission, para. 411. 
1787 European Communities' first written submission, para. 418. 
1788 European Communities' first written submission, paras. 414-419. 
1789 European Communities' first written submission, paras. 414-415.  WT/DS375/R 
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  computer". The European Communities further ar gues that the complainants have not submitted 
enough evidence to support their point that computer functions of ADP MFMs, such as printing, are such as to indicate that these devices are "princip ally" used with computers.  Merely juxtaposing 
certain computer functions (i.e. scanning and printing)  and non-computer functions (i.e. copying) of 
ADP MFMs to conclude that these devices comply with  the "principally used" rule of Note 5(B)(a) 
because, numerically, there are more "computer" than  "non-computer" functions, is, in the European 
Communities' view, too simplistic an argument. Such  an argument overlooks, for example, the fact 
that the scanning function may be "purely instrument al" to the copy function and that the machine 
may have other non-computer functions, such as "facs imile transmission".  Mo re crucially, concludes 
the European Communities, this "quantitative approach" fails to take into consideration the "level of 
performance" of each of the different functions of the device.
1790 
7.1388  In the European Communities point of view, Japan's position that "printing" is always  the 
principal  functions of any ADP MFM is "unjustifiably rigid and manifestly unreasonable" because it 
assumes this conclusion irrespective of the speci fic objective characteristics of each model of 
ADP MFM.  The European Communities contends that  the argument that th e "print unit" (or the 
"print module") is the "most important" component of ADP MFMs is wrong because most of the printing components, including in particular the "p rint engine", are themselves multifunctional (i.e. 
they can be used indistinctly for printing data  received from an automatic data-processing machine, 
for copying or for printing an in coming facsimile message).  Additi onally, the European Communities 
argues that it does not follow from the mere fact th at the printing components are the most important 
that the printing function  is the most important.  The Europ ean Communities rebuts the complainants' 
position that the copying function is "incidental"  to the other functions as being based on the 
"implausible premise" that "digital copying" is not really "copying."  And even if this premise were 
correct, it would be of no use in relation to Note 5(B)(a), because it is beyond dispute that digital 
copying, regardless of whether it is a distinct "function", does not involve "the use of an ADP 
system".
1791 
7.1389  According to the European Co mmunities, when the copying function is not secondary (e.g., it 
is either primary or equivalent) then the MFMs in question are prima facie classifiable in both 
HS1996 subheadings 8471 60 and 9009 12 a nd the relevant rules of the HS, most notable GIR 3, must 
be applied.  In particular, the European Communitie s argues that because the essential character of the 
MFM cannot be determined pursuant to GIR 3(b) , then GIR 3(c) is the applicable rule.1792  GIR 3(c) 
requires that when goods cannot be classified pursuan t to GIR 3(a) or (b) they shall be classified in 
the heading which occurs last in numerical order among those which equally merit consideration.  In 
the European Communities' view, this justifi es the classification of MFMs under HS1996 subheading 
9009 12 as photocopying apparatus. 
7.1390  For their part, the complainants argue that GIR 3(c) is inapplicable.  Most importantly, they 
argue that any "essential character" analysis unde r GIR 3(b) would result in classification under 
HS1996 heading 8741.  Specifically, Japan argues that: 
                                                      
1790 European Communities' first written submission, para. 422;  European Communities' second 
written submission, para. 130. 
1791 European Communities' second oral statement, paras. 140-145. 
1792 GIR 3(b) requires classification of composite machines by the material or component which gives 
them their essential character.  The European Communities concedes that it is the print engine which would confer the essential character on a MF M.  However, the European Communities contends that the print engine 
can be intended for use as a copier, fax, or printer, ther efore if a print engine were intended for use in a MFM its 
classification would give rise to the same difficulties as the classification of the MFM itself.  The European Communities, therefore, concludes that ap plication of GIR 3(b) is impossible.  See European Communities' first 
written submission, paras. 437-441. WT/DS375/R 
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  "For purposes of the analysis under GIR 3(b), MFMs with digital connectivity are 
considered to be composed of the two key components – a printer module and a scanner module – and it is the printer module that gives MFMs their essential 
character because of the predominant printi ng function of MFMs.  Moreover, both of 
the two key components –a printer module and a scanner module – belong to the same heading (i.e., 8471)."
1793 
(ii) Consideration by the Panel 
7.1391  The Panel  recalls its conclusion above that an "input or output unit" within the meaning 
subheading 8471 60 is a device that is of an "aut omatic data-processing machine" or part of an 
"automatic data-processing machine system", that is  connectable to the central processing unit either 
directly or through one or more other units and th at performs at least one specified function that 
involves accepting or delivering data in a form (codes or signals) that can be used by the automatic 
data-processing machine or "automatic data-processi ng machine system".  We also recall our view 
that not all devices capable of connecting to an ADP by accepting or delivering data from or to an 
ADP necessarily  qualify as an input or output unit of heading 8471.1794   
7.1392  All the parties agree that ADP MFMs are apparatus that not only perform ADP functions, 
such as printing paper documents from an automa tic data-processing machine, but also perform, 
autonomously, non-ADP functions, such as "digita l copying" (and, sometimes, "facsimile 
transmission" as well).  The parties all also agre e that the apparatus are able to connect to an 
automatic data-processing machine and accept or deliver  data from the central processing unit.  Then, 
the issue as posed by the parties is whether the product s at issue satisfy the criteria in Note 5(B)(a) of 
Chapter 84, i.e. that they are "of a kind solely or  principally used" with an automatic data-processing 
machine.   
7.1393  As noted above, we believe that the analysis should not be on actual use, but the design and 
intended use of the products based on an examination of the objective characteristics.  This can clearly 
only be done on a case-by-case, product specific basis. 
7.1394  The European Communities concedes that the prin t engine is the largest and most valuable 
component of a MFM.1795  The European Communities also does not dispute that the way copying is 
achieved in a MFM is through the combined use of the print engine and the scanner.1796 It is also 
undisputed by all parties that a "single function" machine which was solely a printer or solely a 
scanner would be presumed to be of a kind solely  or principally used with an ADP machine and 
would fall within the concession in subheading 84 71 60. However, the European Communities argues 
                                                      
1793 Japan's first oral statement, para. 31. 
1794 However, with regard to whether MFMs fall within the scope of subheading 9009 12, see 
paragraph 7.1476, below. 
1795 European Communities' first written submission, para. 438. We note that the European 
Communities, in paragraph 334 of its first written submis sion states that the essential components of an ADP 
MFM with the functions of copying, printing and facsimile are: a print engine, a scanning device, a modem and a print controller. On the other hand, Japan refers to the "printer unit" (see Japan's first written submission, 
paras. 93-97). The United States refers to both a "print er unit" and a "print engine" (see United States' first 
written submission, paras. 68 and 70). Finally, Chinese Taipei, in discussing the Kip judgment refers to the print 
module, the scanning module and th e computer module (see Chinese Ta ipei's first written submission, 
para. 518.) 
1796 European Communities' first written submission, para 371-372 (explaining that in a digital 
photocopier, a source of light project s the image of the origin al document onto the pho to-sensitive surface of a 
scanning device , which convert it into electrical signals which are then recreated in the electrostatic print drum)  WT/DS375/R 
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  that a machine which combines the printing and scanning functions and in the process creates a 
copying function, does not necessarily fall within th e scope of subheading 8471 60.  According to the 
European Communities, if the copying function is "equivalent" to the ADP function then the product 
is prima facie classifiable in both subheadings 8471 60 and 9009 12 and by virtue of GIR 3(c) would 
fall under dutiable subheading 9009 12.  The Eu ropean Communities also  argues that if the 
combination of these two functions together, cr eates a machine where the copying function is 
primary, that machine is necessarily  not of a kind principally used with an ADP machine and must 
also fall within the scope of subheading 9009 12.
1797   
7.1395  The European Communities points to several crit eria set forth by the European Court of 
Justice in the Kip case, including the pages per minute copying capability.  However, we observe that 
these criteria are not set out in th e HS1996 Chapter Notes themselves1798 and that the European 
Communities did not explain why these criteria would be more relevant than others, such as the 
function of the principal component or the value of the various components in the MFM.1799  We are 
not persuaded that an MFM which can copy more than 12 monochrome pages per minute is 
necessarily not "of a kind solely or principally used with an automatic data-processing system".  
Similarly, we are not persuaded by the contention that this analysis will necessarily lead to the 
conclusion that all MFMs are input or output units.  Th is is a determination that needs to be made on a 
case–by-case basis, taking into account the objective characteristics of each MFM. 
7.1396  Additionally, we recall our conclusions in pa ragraphs 7.1306 through 7.1311, above that the 
requirement set forth in Note 5(B)(a) that a "unit" must be "of a kind solely or principally used in an 
automatic data processing system" is an expression of the plain meaning of the term unit of an ADP machine and applies equally to separately presen ted units described in Note 5(C).     
7.1397  We also note that, in certain circumstances,  some ADP MFMs pursuant to our understanding 
of the guidance in Note 3 to Section XVI for co mposite machines, will fall within the scope of 
subheading 8471 60 if the principal function of that  machine is printing, scanning or another "input" 
or "output" function.   While such a determination needs to be made on a case-by- case basis, it seems 
to us that reading the concession in light of the c ontext of the HS Chapter and Section Notes and the 
object and purpose certain of the ADP MFMs at issue in this dispute will fall within the terms of the 
concession in subheading 8471 60.   
7.1398  We note the EC position that at least some of th e products at issue fall within the scope of its 
concessions that relate to HS1996 subheadings 9009 12 and 8472 90.  We turn to that issue now. 
                                                     
 
1797 European Communities' first written submission, para. 389. 
1798 We also note that the only criteria for a determination that copying is either primary or equivalent 
reflected in the EC measures  is the number of pages per minute the apparatus can copy.  We do not believe that 
this criterion alone can serve to determine "principal us e" especially as copying speed is usually identical to 
printing speed in MFMs. See Exhibits US-87, US-104, JPN-13, US-108, EC-95 where the parties submitted the technical specifications of various MFM models of different brands (HP, Brother, Xerox, Lexmark, Ricoh). For 
all these models print and copy speed are the same.  Sometimes print and copy speed are mentioned separately 
("print speed"..."copy speed"), sometime s together ("print and copy speed")." 
1799 A focus on the function of the principal component seems more in line with Note 3 to Section XVI.  
We note that the European  Communities has argued that if the prin cipal component, in this case the print 
engine, is itself multifunctional then classification of the MFM, pursuant to GIR 3(b) based on the classification 
of the component which imparts the products essential character is not possible. (see European Communities' 
first written submission, paras. 438 -440).  However, the Panel is not persuaded by this argument. WT/DS375/R 
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  (c) Are there other applicable tariff headings? 
7.1399  The European Communities argues that because there are other prima facie applicable tariff 
headings for the products at issue, and the proper a pplication of the rules of the HS would result in 
ADP MFMs with a primary or equivalent c opying function being properly classified under a 
subheading other than subheading 8471 60 in the EC Schedule, it is not obliged to provide duty-free 
treatment to certain ADP MFMs.  The first issue for the Panel to consider is whether the products at 
issue (or at least some of them) fall within the scope of the dutiable headings identified by the 
European Communities.  If they do, the Panel would th en need to consider what effect this may have 
on the issue of whether the EC is in breach of  its obligations under Article II of the GATT 1994. 
7.1400  The European Communities raises two possible alternative tariff headings related to 
subheading 9009 12 and subheading 8472 90.  In order to determine whether either is applicable we 
will have to examine the ordinary meaning of th e concession and whether the products at issue fall 
within the scope of that concession.  We will address each concession in turn. 
(i) Ordinary meaning of the terms of the concession under HS1996 subheading 9009 12
1800 
7.1401  The Panel will begin analysing the ordinary me aning of the terms of the concession under HS 
1996 subheading 9009 12 by examining the plain mean ing of the terms set forth in that concession. 
HS96 Description Base 
rate Bound 
rate Year of full 
implementation Other 
duties 
and 
charges Legal 
instrument 
where the 
concession 
is reflected 
9009 Photocopying apparatus 
incorporating an optical system 
or of the contact type and 
thermo-copying apparatus:      
 - Electrostatic photocopying 
apparatus:      
9009 11 00    - - Operating by reproducing 
the original image directly onto 
the copy (direct process) 
 6.5 0.0 2000 0.0 WT/Let/156 
9009 12 00    - - Operating by reproducing 
the original image via an 
intermediate onto the copy 
(indirect process)  7.2 6 1999 0.0 WT/Let/666 
 - Other photocopying 
apparatus: 
      
9009 21 00    - - Incorporating an optical 
system 6.5 0.0 2000 0.0 WT/Let/156 
9009 22 00    - - Of the contact type 4.9 3 1999 0.0 WT/Let/666 
9009 30 00 - Thermo-copying apparatus 4.4 3 1999 0.0 WT/Let/666 
9009 90 - Parts and accessories      
                                                      
1800 We recall that the EC Schedule is based on the HS1996 and that the language in the two are 
identical.  We also note that the parties often refer to the two interchangeably.  Therefore, while we may refer to 
the HS1996 in our analysis, we are ever mindful that th e concession at issue is the one in the EC Schedule.  WT/DS375/R 
 WT/DS376/R 
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 Page 405 
  
  HS96 Description Base 
rate Bound 
rate Year of full 
implementation Other 
duties 
and 
charges Legal 
instrument 
where the 
concession 
is reflected 
9009 90 10    - - Of electrostatic 
photocopying apparatus or 
other photocopying apparatus 
incorporating an optical system 6.5 0.0 2000 0.0 WT/Let/156 
9009 90 90    - -  Other 3.8 0.0 2000 0.0 WT/Let/156 
 
Meaning of electrostatic photocopying appara tus operating by reproducing the original image 
via an intermediate onto the copy (indirect process)  
Arguments of the parties 
7.1402  The European Communities  argues that the terms of the concession in HS1996 subheading 
9009 12 for electrostatic photocopying apparatus "ope rating by reproducing the original image via an 
intermediate onto the copy (indirect process)" are broad, and cover products, such as the MFMs at 
issue, which make copies using digital technology.1801  By contrast, the complainants  argue that the 
HS1996 subheading 9009 12 is very narrowly tailored to a particular type of copying process, also 
known as analogue photocopying, and that it does not in clude products that make copies using digital 
technology.1802  
7.1403  All of the parties begin their analysis of the ordinary meaning of the concession in subheading 
9009 12 by looking at the term "photocopying apparatus" in HS1996 heading 9009.  The European Communities, first notes that the prefix  "photo" comes from the Greek word " phos " (φώς) and means 
light.  The European Communities asserts that the use of light is what distinguishes photocopiers from 
other types of copying machines, such as the thermo-copying apparatus in subheading 9009 30 or the 
mechanical duplicating machines in subheading 8472 90.
1803  The complainants provide several 
definitions of variations of the term, such as for "photocopier", "photocopy" and "photocopying 
process", in support of its contention that what is de scribed in subheading in 9009 12 is a very specific 
and narrow technological process.1804  However, the European Communities argues that these 
definitions support their contention that the descr iption in subheading 9009 12 is broad enough to 
encompass "digital copying".1805 
7.1404  In particular, all parties rely on the definition of a photocopier as "an electrical machine for 
producing immediate, often full-size paper copies of  text or graphic matter by a process usually 
involving the electrical or chemical action of light;"1806 a photocopy as "a copy of usually printed 
                                                      
1801 See, e.g., European Communities' first written submission, paras. 366-367; European Communities' 
first oral statement, paras. 65-66; European Communities' response to Panel question No. 29, European 
Communities' second written submission, para. 107; Europ ean Communities' second oral statement, para. 106;  
European Communities' comments on the complainants' responses to Panel question No. 124. 
1802 United States' second written submission, para. 112; United States' second oral statement, para. 37; 
Japan's second oral statement, para. 22; Chines e Taipei's first written submission, para. 593. 
1803 European Communities' first written submission, para. 368. 
1804 See, e.g., the United States' first written submi ssion, paras. 74, 157-159;  Japan's first written 
submission, paras. 104-107;  Japan's first oral statement, para. 12;  Japan's second written submission, paras. 40 and 77;  Japan's second oral statement, paras. 9 and 37;  Chinese Taipei's first written submission, 
paras. 568-570 and 584. 
1805 European Communities' first written submission, paras. 368-370;  European Communities' second 
written submission, para. 106;  European Communities' second oral statement, para. 107. 
1806 The Shorter Oxford Dictionary  (1993), p. 2193. WT/DS375/R 
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  material made with a process in which an image is formed by the action of light usually on an 
electrically charged surface;"
1807 and photocopying process as "any of the means by which a copy is 
created on a sensitized surface (gener ally paper, film, or metal pl ate) by the action of radiant 
energy."1808 
7.1405  While all the parties seem to rely on the same general definitions of what photocopying is, 
they do not agree on what type of technology is described in the concessi on as an electrostatic 
photocopying apparatus "operating by reproducing the original image via an intermediate onto the 
copy (indirect process)." 
7.1406  The complainants argue that the term "indirect  process" in the parenthetical does not impart 
additional meaning, but rather is used to di stinguish it from the c opying process used by 
"direct process electrostatic photocopying apparatu s" under subheading 9009 11 , in which the optical 
image of the original is projected directly onto a "special light sensitive paper" without being first projected onto an "intermediate."
1809  They essentially argue that "i ndirect process" electrostatic 
photocopying does not have a separate meaning fro m the words used in the concession, i.e., 
photocopying done by "reproducing the orig inal image via an intermediate."  Japan  argues that, 
unlike direct process electrostatic photocopying, indi rect process electrostatic photocopying inserts a 
light sensitive "intermediate" – usually a light sensiti ve metal curved plate or drum – to serve as an 
"intermediate" in the process, which is then used to finish the photocopying.1810  Japan finds support 
for its understanding in the McGraw-Hill Dictionary of Scientific and Technical Terms which defines 
an "intermediate" as "that print which is used as a master for further reproduction."1811  Japan also 
argues that because the concession refers to "an in termediate," the language  contemplates technology 
that only uses a single intermediate – the light sen sitive drum or plate – and not a series of steps.1812    
7.1407  Based on the above definitions, the complainants argue that an electrostatic photocopying 
apparatus "operating by reproducing the original image via an intermediate" has a very specific 
meaning which does not include the use of digital data.1813  In particular, Japan argues that a 
"photocopier" reflects light off the original document a nd then uses that reflected light to transfer the 
original image of the document to a light sensitive su rface and that this reflected light is not digital 
data, and cannot be used or manipulated in the same way as digital data.1814  The complainants also 
argue that the photocopying process requires one expos ure of the original document for each copy.  
According to Chinese Taipei, for each copy being made, an exposure of the optical image of the 
original document is required.1815  Japan argues that this one-to-one  requirement is reflected in the 
terms of the concession because the terms "image" a nd "copy" are in the singular, which, to Japan, 
indicates that the photocopying apparatus covered by HS1996 subheading 9009 12 should reproduce a single copy from a single original image.  Ac cording to Japan, the language of the concession 
                                                     
 
1807 Merriam Webster Dictionary online available at http://www.merriam-
webster/dictionary/photocopy. 
1808 The McGraw-Hill Dictionary , p. 1494 (Exhibit JPN-11). 
1809 Japan's first written submission, paras. 105-10 7; Japan's first oral statement, para. 12. 
1810 Japan's first written submission, para. 106. 
1811 Japan's first written submission, para. 106 citing the McGraw-Hill Dictionary , p. 1034 (Exhibit 
JPN-11). 
1812 Japan's second written submission, para. 53.  See also United States' first written submission, para. 
158 and Exhibit US-90; United States' second written submission, para. 111. 
1813 Japan's first written submission, para. 106; Chin ese Taipei's first written submission, para. 584; 
United States' first written submission, para. 95. 
1814 Japan's first written submission, para. 107; Japan's second written submission, para. 54. 
1815 Chinese Taipei's first written submission, para. 579.  WT/DS375/R 
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  precisely captures the one image to make one co py correspondence that characterizes analogue 
photocopying technology.
1816 
7.1408  The European Communities, however, focuses on the requirement of a source of light to 
project an image of the original, and argues that this definition of photocopying encompasses not only 
analogue technology, but other technologies, such as digital copying, which also rely on a source of light to project an image of the original documen t onto the photo-sensitive surfa ce of an "electrostatic 
drum."  The European Communities ar gues that an "intermediate may consist of an electrostatic drum 
alone, as in the case of analogue photocopiers, or  of various devices operating together (e.g., a 
scanning device, a laser beam and an electrostatic drum), as in the case of the digital photocopiers 
using a laser printer."
1817  The European Communities argues that Japan's definition does not belong 
to the field of photocopying, but to printing mach inery.  The European Co mmunities argues that the 
ordinary meaning of "intermediate" is "coming or occurring between two things in time, place, order, 
character, etc."1818 
7.1409  Given the foregoing, the European Communities c oncludes that the ordinary meaning of the 
terms of the concession in HS1996 subheading 9009 12 includes both digital and analogue copying technologies because they both use light to make copies
1819, and because, as required by the terms of 
the concession, both processes use an intermedia te to make copies, although in the case of 
"digital copying", rather than one intermediate (the  drum), various intermediates are used by working 
together (i.e., a  scanner ; a laser beam  and then an  electrostatic drum).1820  Finally, and as a result of 
the above, "digital copying" can be described as performing an "indirect process", even if in a 
"more indirect" way than in analogue copying.1821   
Consideration by the Panel 
7.1410  The Panel  recalls that its first task here is to determine the ordinary meaning of the scope of 
the concession in subheading 9009 12 in the EC Sche dule.  It is only after we have ascertained the 
meaning of electrostatic photocopying apparatus "ope rating by reproducing the original image via an 
intermediate onto the copy (indirect process)" that we can determine whether the products at issue, 
certain ADP MFMs, are such apparatus.   
7.1411  We consider that to accomplish such a task we are required to consider the following key 
terms of this concession:  "electrostatic photocopyi ng apparatus" and the "indirect process" where the 
copy is produced "via an intermediate."   
                                                      
1816 Japan's first oral statement, para. 17; Japan's second written submission, para. 52. 
1817 European Communities' first written submission, paras, 371-372, 374. 
1818 European Communities' second written submission, para. 113 (citing the definition of 
"intermediate" from the Shorter Oxford Dictionary ) (1993) (Exhibit EC-96). 
1819 European Communities' first written submission, paras. 369-370; European Communities' second 
written submission, para. 106, fn. 76; European Communities' second oral statement, paras. 107-110. 
1820 European Communities' first written submission, paras. 371-372 and 374.  The European 
Communities also considers that the complainants' narrow reading of "intermediate" as only meaning an 
"electrostatic drum" has no basis on the ordinary meaning of this term, which is "coming or occurring between 
two things in time, place, order, character, etc".  Even if the terms "via an intermediate" had to be read as 
meaning "via an electrostatic drum", this requirement wo uld be satisfied provided that the image is reproduced 
onto the copy with the intervention of an "e lectrostatic drum" (as it is the case with all the "digital copiers") and 
would not exclude the possibility that the image may have been processed by other  devices, such as a "scanner", 
before  it reaches the "drum".  European  Communities' second written submi ssion, paras. 112-115;  European 
Communities' second oral statement, paras. 115-117. 
1821 European Communities' first written submission, para. 372. WT/DS375/R 
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  7.1412  We note that all the parties rely on definitions that describe "photocopying" as the process 
whereby a paper copy is being produced by th e action of light on a photo-sensitive surface.  The 
complainants argue that "photocopying" is a very specific type of technology, while the European 
Communities contends that any technology that u ses light to project an image of the original 
document onto the photo-sensitive surface can be photoc opying.  We have revi ewed the definitions 
provided by the complainants and also looked at other definitions of photocopying.   
7.1413  We find particularly informative, a definitio n from the World Encyclopaedia which explains 
photocopying as: 
"[R]eproduction of words, drawing, or photographs by machine.  In a photocopying 
machine, a light shines on the item to be copied, and an optical system forms an 
image of it.  Various techniques may be used to reproduce this image on paper.   In a 
modern plain-paper copier , the image is projected onto an electrically charged drum, 
coated with the light-sensitive element sel enium.  Light makes the selenium conduct 
electricity, so bright areas of the drum lose their charge.  The dark areas, which 
usually correspond to image detail, retain thei r charge, and this attracts particles of a 
fine powder called toner.  Electrically char ged paper in contact with the drum picks 
up the pattern of toner powder.  A heated roller fuses the powder so that it sticks to 
the paper and forms a permanent image."
1822 (emphasis added) 
7.1414  The complainants explained that photocopying  technology is based on an invention of the 
process by Chester Carlson known as xerography.1823  We note that in the Oxford English Dictionary  
"photocopying" is indicated as a synonym to "xerogr aphy", the latter term being defined as "[a] dry 
copying process in which an electrically charged surface retains both the charge and a pigmented 
powder on areas not illuminated by light from bright pa rts of the document, so that a permanent copy 
may be immediately obtained by placing paper on th e surface and applying heat to fuse the powder to 
it; photocopying."1824  The Britannica Online Encyclopaedia explains that in xerography:  
"[T]he photoconductive layer is selenium, and the image is made visible by dusting 
the plate with an electrostatically charged powder (toner) having a charge that is the 
opposite of that of the electrostatic image.   The powder adheres to the image portions 
only and is then transferred to a sheet of plain paper also under the influence of electrostatic fields.  A final heat treatment fuses the powder into the paper for a 
permanent picture.  The process usually makes a positive from a positive original."
1825   
7.1415  We note that the definitions of photocopying provi ded by the parties are quite generic and that 
the World Encyclopaedia recognizes that a photocopy can be made by a variety of methods, indeed 
                                                      
1822 "photocopying" World Encyclopaedia 2005. available at  http://www.encyclopedia.com (last 
viewed 23 May 2010). 
1823 Xerox, the Story of Xerography" page 12 (Exhibit US-89) (explaining that "analogue photocopiers" 
rely on a copy process called "xerography", invented in 1938 by Chester Carlson, and which is based on the 
combination of two well-known natural phenomena:  that materials of "opposite electrical charges" are attracted to each other and that certain materials become "better c onductors of electricity when  exposed to light.")  See 
also Abramsohn, Dr. Dennis A, " A Comparison of Photocopying to Digital Printing from Hardcopy"  (Exhibit 
US-90).  See, e.g., the Unites States' first written submis sion, paras. 158-159;  Japan's first written submission, 
paras. 98-122; Chinese Taipei's second written submissi on, paras. 313-314; European Communities' first written 
submission, paras. 371-372. 
1824 Oxford English Dictionary , 2nd ed. 1989 (emphasis added). 
1825 "photography, technology of" Encyclopaedia Britannica.  En cyclopaedia Britannica Online.   
available at http://www.search.eb.com/eb/ar ticle-36511 (last viewed 23 May 2010).  WT/DS375/R 
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  heading 9009 itself speaks of "contact type" photocop iers. However, it goes on to describe the method 
of the "modern plain paper" photocopier which uses an electrostatically charged drum. We are of the view that this type of photocopying does seem to be synonymous with "xerography" which uses 
electrostatically charged powder (toner) and "electrosta tic fields". For this reason, we are of the view 
that the definitions of "modern photocopying" and of xerography describe an electrostatic 
photocopying process.   
7.1416  We note that subheading 9009 12 does not cover just any electrostatic photocopying 
apparatus, but one which operates by repr oducing the original image onto the copy via an 
intermediate, which is also described in the concession with  the parenthetical "(indirect process)".  
The reference to "indirect process", distinguishes this process from the "direct process" technology 
covered in subheading 9009 11.  Essentially, in "i ndirect process" photocopying which operates via an 
intermediate, the original image is not projected dir ectly onto the paper, but is rather first projected 
onto something other than the final paper on which th e copy will appear.  This is confirmed by the 
definition of "intermediate" at paragraph 7.1406 as meaning "that print which is used as a master for 
further reproduction."  It is also confirmed by the explanation of the "electrostatic photocopying process" above, that in a "modern" plai n-paper photocopier the image is projected onto 
an electrically charged drum or plate, coated with the light-sensitive element selenium.  It is in this 
drum or plate that a latent and invisible image is  created when light from the original document is 
directly reflected onto it.  This is also consistent  with the dictionary definition of photocopying which 
refers to a process where a copy is "created on  a sensitized surface" using light.  This also indicates 
that the meaning of "... reproducing the original image via an intermediate ..." as used in the 
concession requires the creation of the copy on a se nsitized surface as a "latent image" before the 
copy is adhered to the paper.  
7.1417  Therefore, the plain meaning of indirect pro cess, as used in the concession, describes an  
electrostatic photocopying apparatus, operating by using light to project the original image onto a 
light-sensitized surface creating a latent image whic h is subsequently adhered to plain paper using 
electrostatically charged powder (toner) and heat to  form a final copy of the original image on the 
paper. 
7.1418  We note that the above definitions of elect rostatic photocopying/xerography match the 
evidence presented by the complainants to e xplain the process used by apparatus known as 
"analogue photocopiers."
1826  We understand that all of the parties concur that "analogue" electrostatic 
photocopying apparatus are unquestionably included within the scope of the concession in HS1996 
subheading 9009 12. The complainants describ e analogue photocopying as having the following 
characteristics: First, the "reflected light" from the original document has to be immediately used, or 
else it disappears. In other words, the copy from the original document must be made immediately.1827  
Second, under the above process, the original document is  needed each time a ha rd copy is made.  Put 
differently, each "flash of light" that illuminate s the original document serves to produce one single 
hard copy that outputs from the machine.  So, fo r instance, ten copies would need ten "flashes of 
light".1828  Third, under the above process, the "reflected  light" has only one purpose, that is, to make 
                                                      
1826 Exhibit JPN-35 (providing a graphic description of the process).  See also Exhibit EC-66 (also 
providing a graphic description of the process).  See European Communities' first written submission, para. 371, 
fn. 255. 
1827 Japan's first written submission, paras. 113-114;  Japan's second oral statement, paras. 15-16; 
Chinese Taipei's first written submission, paras. 575-584. 
1828 United States' first written submission, paras. 15 8-159;  United States' second written submission, 
para. 111; Japan's first written submission, paras. 109, 113 -114; Chinese Taipei's first written submission, paras. 
575-584. WT/DS375/R 
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  an instant "copy" of the original document in the drum or on a plat e, with the consequence that the 
image created can never be shared or transferred to another machine or device.
1829 Finally, the image 
created in the drum can be manipulated in only one way: by enlarging or reducing the size of the copy 
by using adjustments to the lens and the position of the lens.1830 
7.1419  The complainants argue that this is the only type of technology covered by the ordinary 
meaning of the concession in subheading 9009 12.  In particular, Japan points to the singular tense 
used to describe original, copy, a nd intermediate to support its view that what is described in the 
concession is analogue ph otocopying technology.1831 However, the European Communities argues 
that the ordinary meaning of subheading 9009 12 simply requires the reproduction of the original 
image onto the copy via an intermediate and does not  exclude the possibility that the image may have 
been processed by other devices such as a scanner, before it reaches the drum.1832  
7.1420  We do not believe that this interpretative ques tion can be answered by looking merely at the 
plain meaning of the text in the absence of context or the object and purpose.  In this respect, we will 
examine the structure  of Chapter 90, to which heading 9009 and subheading 9009 12 belong within 
the EC Schedule, and the rest of heading 9009. Additionally, we will proceed to examine other 
materials of the HS, raised by the parties, as o ffering context for the interpretation of the ordinary 
meaning of the concession. In particular, we will review the language of the 1996 HSEN to heading 
9009, which, the complainants claim, confir ms that the scope of the concession in HS1996 
subheading 9009 12 is limited to analogue photocopying.  
The terms in Subheading 9009 12 in their context  
7.1421  The parties refer to several materials within th e HS as context for understanding the ordinary 
meaning of the concession in 9009 12 as it appears in the EC Schedule.  In particular, the parties refer 
to the structure of Chapter 90 of the HS1996 (including heading 9009) in light of the structures and coverage of Chapters 84 (including heading 8471), and the HSEN for heading 9009.  The 
complainants contend that all of these materials confirm that the concession in 9009 12 should be 
narrowly construed to only apply to the specific type of photocopying technology commonly seen in 
"analogue" photocopiers.  The European Communiti es, however, argues that nothing in the context 
demands such a narrow reading of the scope of the concession.  
Arguments of the parties 
HS 1996 and CN Heading 9009, 1996 HS EN to 9009, and Chapters 90, 84, 
and 85 
7.1422  The complainants  begin their contextual argum ents by focusing on the structure  of HS1996 
Chapter 90, which they argue demonstrates that pr oducts with digital technology are not within the 
scope of the tariff concessions in this Chapter.
1833  In particular, the complainants point to the 
                                                      
1829 Japan's first written submission, paras. 115-117;  Japan's second oral statement, paras. 15-16, 43-
44; Chinese Taipei's first written submission, paras. 575-584;  Chinese Taipei's first written submission, 
paras. 575-584. 
1830 Japan's first written submission, paras. 118-119;   Chinese Taipei's first written submission, 
paras. 575-584. 
1831 Japan's first oral statement, paras. 18-19; Japan's second written submission, paras. 52-53. 
1832 European Communities' second written submission, para. 115. 
1833 Japan, for example, submits that the relevant headings under Chapter 90 – HS1996 headings 90.01 
to 90.10 –, "all refer to analogue optical technologies, an inherent technological distinction that precludes  WT/DS375/R 
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  language of the other headings within Chapter 90 to support their premise, which include products 
that depend on "optical," "analogue" and "phot ographic" technologies, instead of "digital" 
technologies.
1834  The language of the headings in Chapter 90 are set forth below: 
Chapter 90 
"Optical, photographic, cinematograp hic, measuring, checking, precision , medical or surgical instruments 
and apparatus;  parts and accessories thereof" 
 
Heading 90.01  "Optical fibers ..." 
Heading 90.02  "Lenses, prisms, mirrors an d other optical elements ..." 
Heading 90.03  "Frames and mounting for spectacles ..." 
Heading 90.04  "Spectacles,  goggles ..." 
Heading 90.05  "Binoculars, monoculars ..." 
Heading 90.06  "Photographic ... cameras" 
Heading 90.07  "Cinematographic cameras and projectors ..." 
Heading 90.08  "Image projectors ...; photographic ... enlarges and reduces" 
Heading 90.09 "Photo-copying apparatus incorporating an op tical system or of the contact type and 
thermo-copying apparatus." 
Heading 90.10  "Apparatus and equipment fo r photographic ... laboratories ... not specified or included 
elsewhere in this Chapter ..."  
 
7.1423  The complainants argue that Chapter 90 cove rs optical, photographic, cinematographic ... 
instruments and apparatus and that the relevant  heading titles all depend on optical and photographic 
technologies.1835  The complainants contrast the language of  Chapter 90 and its headings with that of 
Chapter 84 which covers "Nuclear reactors, boile rs, machinery and mechanical appliances; parts 
thereof" and Chapter 85 which covers "Electrical machinery and equipment and parts thereof; sound 
recorders and reproducers, television image and sound recorders and reproducers, and parts and 
accessories of such articles."1836 Japan argues that there is a distinc tion between the coverage of 
products in Chapter 90 and Chapter 84 based on the underlying type of technology used.1837 In the 
complainants' view there is an inherent technological distinction that precludes products built around 
digital technologies from the scope of Chapter 90 which deals with optical or photographic products 
and thus it would be unreasonable to  construe the terms of heading 9009 12 so broadly as to include a 
fundamentally different technology, such as digital technology.1838 
7.1424  To illustrate and give further support to the cl aim that Chapter 90 concessions are restricted 
and have no relation with  "digital technology", Chinese Taipei  makes reference to the example of the 
different tariff treatment given under the EC Schedule for "digital cameras" in one hand and 
                                                                                                                                                                     
products built around digital technologies from the scope of heading 9009." (Japan's response to Panel question 
No. 34).  In the same vein, see also the United States' first written submission, para. 160. 
1834 United States' first written submission, para. 160;  Japan's first written submission, paras. 126.  
Rather than citing specific language  from each of the "relevant" headi ngs under Chapter 90, Chinese Taipei 
makes a more general reference to Chapter 90's "title":  "Optical, photographic, cinematographic, measuring, 
checking, precision, medical or surgi cal instruments and apparatus;  part s and accessories thereof." (Chinese 
Taipei's first written submission, para. 595). 
1835 Japan's first written submission, para. 126. 
1836 Chinese Taipei's first written submission, paras. 595-596. 
1837 Japan's first written submission, para. 126; see also Chinese Taipei's first written submission, 
paras. 596, 598. 
1838 United States' first written submission, para. 160;  Japan's first written submission, paras. 126-128;  
Japan's first oral statement, para. 33;  Chinese Taipei's first written submission, paras. 592-598.  Chinese Taipei also sees confirmation to this view on the fact that, unlike HS1996 headings 8471 and 8517, heading 9009 does 
not contain a "residual subheading" (Chinese Taipei's first written submission, para. 593). WT/DS375/R 
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  "photographic cameras" on the other.  In the EC Schedule, it argues, "digital cameras" fall under 
HS1996 subheading 8525 40, more precisely under tariff item number 8525 40 11 as "still image video cameras – digital."  On the other hand, in  the EC Schedule, "photographic cameras" fall under 
HS1996 heading 9006.
1839 
7.1425  The European Communities  rejects the argument that when Chapters 84, 85 and 90 are read 
together in context, because Chapter 90 is more "sp ecific," it then follows that it should be interpreted 
restrictively.  The European Commun ities claims that it is not aware of any such rule of interpretation 
under the HS that would support such an approach.  If anything, submits the European Communities, 
the fact that Note 1(m) to Section XVI of th e HS expressly excludes Chapter 90 from that Section 
(where Chapters 84 and 85 belong) indicates the HS  drafters saw a potential overlap between these 
three chapters and resolved this by giving preference to Chapter 90, not the other two.1840 
7.1426  The European Communities also rejects the compla inants' claim that "digital photocopiers" do 
not "belong" in Chapter 90 because they sup posedly do not use "optical technology". The 
European Communities claims that, in fact, these devices contain a scanner which is itself composed 
of an "optical system consisting of lamps, len ses and mirrors."  Furtherm ore, HS1996 heading 9009 
also includes photocopiers without  an optical system, namely the photocopiers "of the contact type," 
mentioned in HS1996 subheading 9009 22.1841 The European Communities ar gues that there is no rule 
or principle whereby any product must be exclude d from Chapter 90 headings just because it uses 
"digital technology".1842  Indeed, the European Communities asser ts that various "optical products 
with digital technology" clearly fall under Chapter 90.1843 
7.1427  As to the example of the different treatmen t in the EC Schedule between "digital" and 
"photographic" cameras, the European Communities submits that in fact HS1996 subheading 8525 40 
covers all kinds of "still image video cameras", whether "digital" or "analogue." The European 
Communities argues that this is confirmed by the fact that in the ITA, the concession under HS1996 
                                                      
1839 Chinese Taipei's first written submission, para. 597 .  We note that, when dealing with the "HS as 
context", Chinese Taipei also makes a similar argument, claiming that not only in the EC Schedule, but also 
under the HS, "digital" and "photographic" cameras are cla ssified differently, i.e. the former in HS1996 heading 
8525 and the latter in HS1996 heading 90.06 (Chinese Taipei's first written submission, para. 620). 
1840 European Communities' first written submission, para. 425. 
1841 European Communities' first written submission, paras. 376-377. 
1842 European Communities' response to Panel question No. 125. 
1843 The European Communities submits that the following products are "optical products with digital 
technology" that nevertheless fall under Chapter 90:  (1 ) "pocket cameras ... controlled by a microprocessor";  
(2) "Laser Photoplotter for creating latent printed circ uit board images on photosensitive film, generally from 
digital formats ..."; (3)  "Laser Phot oplotter for creating images on photose nsitive film, generally from digital 
formats ..."; (4) "digital film recorders";  (5) "digital mi croscopes".   It further lists the following "medical, 
scientific and laboratorial analysis machines" that also incorporate digital technologies but nevertheless fall in 
Chapter 90:  (6) "digital oscilloscopes"; (7) "sound analysis apparatus"; (8) "spectrum analysers"; (9) "spectrometers"; (10) "network analysers"; and  (11) "pH meters."  The European Communities argues that the 
evidence that products (1) to (3) fall under heading 9006 is the language of the HS2007 HSEN to subheading 
9006 (Exhibit EC-103).  It argues that the evidence that product (4) falls under heading 9006 is a 2000 EC classification regulation and a 2001 US HQ ruling (Exhibits EC-104; EC-105);  It argue s that the evidence that 
product (5) falls in heading 9011 (which, we note, is more precisely a "micro inspection station system" 
incorporating inter alia  a "digital CCD microscope") is a 2006 UK BTI (Exhibit EC-106).  Finally, the 
European Communities offers as evidence in support of its allegation that products (6) to (11) fall, respectively, 
under headings 9030, 9027, 9030, 9027, 9031 and 9027, various brochures and two 2007 WCO classification 
decisions (Exhibit EC-117). See European Communities' second written submission, paras. 184-185 (commenting on Japan's response to Panel question No . 34) and European Communities' response to Panel 
question No. 125.  WT/DS375/R 
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  subheading 8525 40 is preceded by the word "ex", which indicates that the duty-free concession was 
limited to only a subset of products within that s ubheading, i.e. only "still image video cameras" that 
are "digital". According to the Eur opean Communities, the fact that in this "ITA concession" a term 
not present in HS1996 subheading 8525 40 (i.e., th e word "digital" which precedes the phrase "still 
image video") was included, combined with the fact that the rest of the text of that HS subheading 
was omitted (i.e., the phrase "and other video camera r ecorders"), confirms that the scope of HS1996 
subheading 8525 40 includes all kinds of "still video cameras".  In the Euro pean Communities' view, 
it was the fact that the device was a "still video came ra," not its "digital" nature, that caused it to fall 
within the scope of HS1996 subheading 8525 40. Ther efore, the European Communities concludes, 
this example does not support the argument that digital products are per se  excluded from Chapter 
90.
1844 
Heading 9009 
7.1428  Regarding the breadth of the concessions in HS1996 heading 9009,  Chinese Taipei argues 
that, unlike headings 8471 and 8517, the wordi ng includes a very limited category of apparatus 
(photo-copying and thermo-copying) as well as their pa rts and accessories.  Chinese Taipei also notes 
that 9009 does not have a residual category.1845  Japan  argues that the sub-grouping of "electrostatic 
photocopying apparatus" in 9009 only includes two more detailed six-digit subheadings 9009 11 for 
direct process electrostatic photocopying and 9009 12 for indirect process electrostatic photocopying.  
Japan submits that the language of the two subhead ings informs the definition of "photocopying" in 
the main heading.  Additionally, Japan argues that the exhaustive nature of the descriptions in the two 
subheadings "makes clear that subheading 9009 12 has no role as a 'catch all' category that captures 
any 'photocopying apparatus' using an 'electrostat ic' mechanism other than a 'direct process' one."1846  
Consequently, according to Japan, the terms of subh eading 9009 12 must be interpreted strictly in 
accordance with its text.1847  
7.1429  The complainants further note that, with r espect to photocopiers, heading 9009 and its 
subheadings only apply to those photocopying apparatus incorporating an "optical system."  The United States  explains that an "optical system" is a system composed of a "light source", "mirrors" 
and "lenses" that allow the optical image of the original to be projected onto the drum (the 
intermediate).
1848  Therefore, according to the complainan ts, a product cannot fall within the scope of 
9009 12 if it does not use an optical system of a light s ource, mirrors, and lenses to project the original 
onto the drum.1849 
                                                      
1844 European Communities' response to Panel question No. 125 (citing the full text of HS1996 heading 
8525 as well of the 1996 HSEN to heading 8525).  The European Communities also refers to the language of 
HS1996 Chapter Note 1 h) to Chapter 90, claiming that it indistinctively excludes from Chapter 90 all still 
image video cameras, whether they are digital or not). 
1845 Chinese Taipei's first written submission, para. 593. 
1846 Japan's second oral statement, para. 22. 
1847 Japan's second oral statement, para. 22. 
1848 United States' second written submission, para. 112; United States' second oral statement, para. 37. 
1849 See, for example: United States' first written su bmission, paras. 71, 157, 159; United States' first 
oral statement, para. 37; United States' second written s ubmission, paras. 111-114; United States' second oral 
statement, para. 37; Japan's first wr itten submission, paras. 70-73, 107-122, 158-161 and 207; Japan's first oral 
statement, para. 37; Japan's second written submission, paras. 40-41; Chinese Taipei's first written submission, 
para. 574-584; Chinese Taipei's second written submission, paras. 299-300, 314, 319; complainants' responses to Panel question No. 29 (arguing that the WCO endorsed their view that digital c opiers are not photocopiers); 
Japan's responses to Panel questions Nos. 124; 131 and 136. WT/DS375/R 
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  7.1430  The European Communities  first argues that the distinctions in the six-digit subheadings 
under 9009 for electrostatic photocopying apparatus are exhaustive. According to the European Communities:  
"[A]ll photocopying apparatus with an optical system and an electrostatic print engine 
fall within one of those two categories.  Since it is beyond dispute that digital copiers do not operate according to the 'direct process ', it must be concluded that they follow 
the 'indirect process.'"
1850   
7.1431  Additionally, in rebuttal to the United St ates, the European Co mmunities argues that 
"digital copiers", do have "optical systems" as re quired by the terms of the concession, indeed, 
according to the European Communities they include not  only one, but two "optical systems" (i.e., the 
CCD of the scanner and the laser beam).1851  The European Communities rejects the view that there 
can only be one single "optical system" because this  term appears in the concession in the singular 
form.  The European Communities argues that even if the wording of the concession had to be 
narrowly interpreted as excluding the use of "more than  one optical system", it is possible to consider 
that "all the optical elements" used in digital copying constitute a "single system" because they 
"operate in a related and interconnected manner in  order to accomplish a common function," which in 
this case is to make copies. 1852   
1996 HSEN to Heading 9009 
7.1432  The complainants  argue that the 1996 HSEN to heading 9009 provides relevant contextual 
material for understanding the concession because it speak s directly to the meaning of the terms of the 
concession in 9009 12 for electrostatic photocopying apparatus operating by reproducing the original 
image via an intermediate onto the copy (indirect  process) and confirms that such a concession is 
limited only to machines that use analogue copying technology.1853 
7.1433  The complainants claim that the 1996 HSEN to  heading 9009 supports their view that the 
ordinary meaning of the term "photocopying" in  the concession is only related to an analogue 
copying process and, consequently, not related to "d igital copying". They attach particular importance 
to the 1996 HSEN's definition of what constitutes th e "optical system" that "photocopying apparatus" 
must incorporate under the concession. They recall this definition's explanation that an "optical 
system", which is comprised mainly of a "light so urce", "lenses" and "mirrors," is used, similarly to 
what happens in "analogue photocopiers", to project "the optical image of an original document on to 
a light-sensitive surface".1854 
                                                      
1850 European Communities' second written submission, para. 110. 
1851 The European Communities' second oral statement, para. 114.   
1852 European Communities' comments on the complainants' responses to Panel question No. 124 
(citing the definition of "system" from the Merriam-Webster Online Dictionary , as "a group of devices or 
artificial objects … forming a network especially for … serving some common purpose."). 
1853 See e.g., United States' first written submission, para. 163;  Japan's first written submission, para. 
74; Japan's first oral statement, para. 30; Japan's s econd written submission, paras. 40, 49 and 163. Japan's 
second oral statement, paras. 28-30; Chinese Taipei's first written submission, paras. 617-619; Chinese Taipei's 
second oral statement, para. 59.   
1854 The United States' first written submission, para. 163; the Unites States' second written submission, 
para. 112; Japan's first written submission, paras. 155-161; Chinese Taipei's first written submission, paras. 
617-619.  WT/DS375/R 
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  7.1434  Japan  further submits that the explanation of "indirect process" in the 1996 HSEN to 
heading 9009 is very important to the interpreta tion of the phrase "reproducing the original image 
onto the copy via an intermediate (indirect pr ocess)" in the concession. The HSEN states that: 
"In the indirect process, the optical image is  projected onto a drum (or plate) coated 
with selenium or other semiconducting substa nce charged with static electricity.  
After the latent image has been devel oped by means of a powdered dye, it is 
transferred onto ordinary paper by applying an electrostatic field and fixed to the 
paper by heat treatment."
1855 
7.1435  Japan argues that this explanation thus confirms  Japan's reading of "reproducing" (as used in 
the concession) in the sense of "proj ecting" the original image. It further confirms Japan's reading of 
the concession term "an intermediate" as meaning th e photosensitive "drum (or plate)."  Japan argues 
that the HSEN describes a process whereby the optical image is projected immediately onto the 
intermediate rather than converted into digital data  that can be stored, manipulated, or in other ways 
processed before being used.1856  
7.1436  Japan asserts that the language of the 1996 HSEN to heading 9009, which gives 
"very specific" contextual guidance for exactly wh at "via an intermediate" in HS1996 subheading 
9009 12 really means,  quite specifically explains th at "the optical image is projected onto a drum (or 
plate)" and that after the "latent image has b een developed" on the photosensitive drum, that 
latent image "is transferred onto ordinary paper."  Japan concludes that this language is entirely 
consistent with its interpreta tion of HS1996 subheading 9009 12 and largely at odds with the 
European Communities' broad inte rpretation of this concession as  allowing "a wide range of 
technologies requiring multiple 'intermediaries,'" whic h do not fit the descriptions contained in the 
HSEN.1857 
7.1437  The European Communities  claims that the 1996 HSEN to  heading 9009 is of limited 
probative relevance to this case because besides not  being binding under the HS, this particular EN 
was drafted well before "digital copiers" came into existence.  The European Communities asserts that 
the HSEN to the HS1996 heading 9009 reproduces the wo rding of the EN to that heading of the 1988 
version, which in turn was based upon the EN to the Brussels Nomenclature, going back as far as 
1966.1858  The European Communities further argues that  the descriptions of the specific types of 
machines included in the group of photocopying apparatus in the 1996 HSEN to heading 9009 does 
not purport to be exhaustive and does not exclude th e possibility that there may be other types of 
"photocopying apparatus" belonging to the same "group".1859  With respect to the "optical system" the 
European Communities argues that "digital copiers" m eet each and every element of the description in 
the HSEN  First, because in a digital copier the optical image of a document is projected on to a 
"light-sensitive surface": the CCD array.  Sec ond, because this is done by means of an 
                                                      
1855 Japan's first written submission, para. 162 citing Vol. 4 Harmonized Commodity Description and 
Coding System, Explanatory Notes (2nd ed. 1996), at p. 1592. (Exhibit JPN-23). 
1856 The United States' first written submission, para. 163; the Unites States' second written submission, 
para. 112; Japan's first written submission, paras. 155- 161 and 163; Chinese Taipei's first written submission, 
paras. 617-619. 
1857 Japan's first written submission, paras. 162-163;  Japan's first oral statement, para. 30;  Japan's 
second oral statement, paras. 31-32. 
1858 European Communities' first written submission, para. 381 and fn. 202. 
1859 European Communities' first written submission, paras. 381-384;  European Communities' second 
written submission, paras. 116-117 and 186-191 (commenting on the complainants' responses to Panel question No. 35(b));  European Communities' second oral statement, para. 119.  See also Exhibit EC-71, which 
reproduces the different versions of this HSEN. WT/DS375/R 
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  "optical system".  Last, because "it is beyond disput e" that digital copiers include "components for the 
developing and printing of the image".
1860 
7.1438  The complainants reject the European Commun ities view that the language of the 1996 HSEN 
to heading 9009 is "largely obsolete" and thus of lit tle probative use.  Even if  true that the original 
version of the HSEN to heading 9009 was drafted in the 1960s, they wonder why in editions of the 
HS that were prepared after  "digital copiers" were prevalent on the market parties to the HS 
(including the European Communities) did not modify the language in the HSEN to heading 9009 in order to cover "digital copiers".
1861  Japan further argues that regardless of whether the HSEN is 
merely "illustrative", "digital copying" cannot fall under the language of  HS1996 heading 9009 and 
subheading 9009 12 because it does not operate thr ough indirect process electrostatic photocopying 
that involves projecting an optical image onto a drum or plate, and then making a photocopy onto plain paper from the photosensitive drum or plat e, as the 1996 HSEN to heading 9009 specifies.
1862 
Consideration by the Panel 
7.1439  We recall that the Appellate Body has confirme d that the HS may provide additional relevant 
context to the interpretation of a given tariff concession.1863  The parties all agree that the 1996 
version of the HS, on which the concession in subhe ading 9009 12 in the EC Schedule is based, is a 
relevant document of the HS to provide contex t for the ordinary meaning of that concession.1864  The 
Panel  finds, therefore, that HS1996 Chapter 90 and other Chapters of the HS, HS1996 heading 9009, 
and other parts of the HS, such as the explanatory notes are relevant context for determining the scope 
of the meaning of the terms used in the concession. 
HS1996 Chapter 90 and Chapters 84 and 85 
7.1440  The Panel  understands that the complainants' vi ew that HS1996 Chapter 90 is limited to 
optical and photographic technology comes from the wording of the Chapter heading itself, which 
specifically refers to "[o]ptical, photographic, cinematographic, measuring, checking, precision, 
medical or surgical instruments and apparatus;  parts and accessories thereof."  We also note that 
GIR 1 provides that the titles of Sections, Chapters and sub-Chapters "are provided for ease of reference only" and that "for legal purposes, classification shall  be determined according to the terms 
of the headings and any relative Section or Chapter Notes...".
1865 
7.1441  The European Communities has provided evidence to  the Panel in the form of its own and in 
some instances the United States' classification practice, some decisions from the WCO and the 
                                                      
1860 The European Communities' first written submission, paras. 382-384. 
1861 See. the United States' response to Panel question No. 35(b);  Japan's first written submission, 
para. 74;  Japan's first oral statemen t, para. 30;  Japan's second written submission, para. 40.  Chinese Taipei's 
first written submission, paras. 617-619;  Chines e Taipei's second oral statement, para. 59. 
1862 Japan's second written submission, para. 59. 
1863 Appellate Body Report  on EC – Computer Equipment , para. 89 and Appellate Body Report on 
EC – Chicken Cuts , paras. 196 and 199. 
1864 The parties' responses to Panel question No. 132 (arguing that the HS1996 applied at the time of 
the concession and that the HS2007 and the Explanatory Notes thereto are neither 'context' under Article 31(2) 
of the Vienna Convention, nor an element 'to be taken into account together with the context', under Article 31(3) of the Vienna Convention).    
1865 GIR 1 provides that "[t]he titles of Sections, Chapters and sub-Chapters are provided for ease of 
reference only; for legal purposes, cla ssification shall be determined accordi ng to the terms of the headings and 
any relative Section and Chapter Notes and, provided  such headings or Notes do not otherwise require, 
according to the following provisions."  WT/DS375/R 
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  HSEN for heading 9006 to demonstrate that  Chapter 90 does indeed cover some digital 
technologies.
1866 
7.1442  It is not clear to us that the complainants  have sufficiently demonstrated that HS1996 
Chapter 90 is exclusively limited to optical tec hnology.  However, nor has the European Communities 
sufficiently demonstrated that Chapter 90 includes a variety of technologies.  We do note that the Chapter titles of Chapter 84 and 85 are certainly broa der than that of Chapter 90.  While the titles of 
Chapter 84 and 85 do refer to some specific technologies, such as nuclear reactors, they also refer to " 
machinery and mechanical appliances " and "electrical  machinery and equipment."  This leads us to 
believe that the HS drafters knew how  to be broadly inclusive when they intended to and that they did 
not do so in the title to Chapter 90.  While we cannot conclude based on this element alone that 
HS1996 Chapter 90 excludes all digital technology, we  do recognize that the Chapter Title is worded 
narrowly and that, subject to the limitation in GIR 1 that the Chapter titles ar e for ease of reference 
only, this can inform our interpretation of the headings therein.  
7.1443  Finally, we consider that the discussion con cerning the different HS Chapters in which 
"digital cameras" and "photographic cameras" are classified –HS1996 Chapters 84 and 90 
respectively- to be helpful to a certain extent.  We believe that a lengthy analysis of the debate 
between the parties on classification of those cameras
1867 will not aid us in providing a positive 
resolution to the dispute, because, in our opinion, the resolution of that classification question would 
not solve the question of the scope of subheading 9009 12.  We do note that all the parties accept, 
with respect to the example of cameras, that two products which perform substantially the same 
function, but utilize different technologies, are classifiab le in different headings of different Chapters.   
Heading 9009 
7.1444  We note that, in the EC Schedule, electro static photocopying apparatus operating by 
reproducing the original image via an intermediate  onto the copy (indirect process) is a dutiable 
concession related to one of the sub-set of machines  belonging to a larger group of other machines 
falling under HS1996 heading 9009.  In partic ular, heading 9009 covers two types of 
copying apparatus: "photocopying apparatus incorpor ating an optical system or of the contact type" 
and "thermo-copying apparatus".  Thus photocopying apparatus that fall under heading 9009 that are 
not of the contact type must incorporate an optical system.1868    
7.1445  With respect to the term "optical system" as used in heading 9009, we note that the 
Encyclopaedia Britannica explains that an optical system: 
"consists of a succession of elements, which may include lenses, mirrors, light 
sources, detectors, projection screens, reflecting prisms, dispersing devices, filters and thin films, and fibre-optics bundles."
1869 
We also note that the Explanatory Note to HS1996 heading 9009 confirms the definition above when 
it refers to an optical system "comprising mainly a light source, condenser, lenses, mirrors, prisms or 
                                                      
1866 European Communities' first written submission, paras. 397-399; European Communities' response 
to Panel question No. 29; European Communities'  second written submission, paras. 161-175. 
1867 These include: whether HS1996 subheading 8525 40 covers "digital" and "analogue" video 
cameras. 
1868 We note that neither the complainants nor the European Communities has claimed that the ADP 
MFMs in question are "contact type" photocopiers. 
1869 "optics" (2010). In Encyclopædia Britannica. last viewed June 09, 2010, from Encyclopædia 
Britannica Online: http://www.britanni ca.com/EBchecked/topic/430511/optics. WT/DS375/R 
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  an array of optical fibres."
1870 Therefore, the Panel finds that in the context of HS1996 subheading 
9009 an optical system, is a system composed of the a bove elements that is used to project the optical 
image of the original onto a light-sensitive surface.   
 
7.1446  In heading 9009, photocopying apparatus are di vided into two categories, each of which are 
further subdivided in six-digit subheadings with in them. First is "electrostatic photocopying 
apparatus" which has two six-digit subheadings , i.e. 9009 11 and 9009 12. As noted before, 
subheading 9009 11 covers those electrostatic phot ocopying apparatus operating by reproducing the 
original image directly onto the copy (direct  process), while subheading 9009 12 covers those 
operating by reproducing the original image via an in termediate onto the copy (indirect process).  The 
second grouping of photocopying apparatus are "[o] ther photocopying apparatus"; within this 
category there are also two six-di git subheadings for photocopying a pparatus incorporating an optical 
system (9009 21) and for photocopying apparatus of the contact type (9009 22).  Therefore, the 
structure of heading 9009 is such that machin es under it are divided in subgroups and further 
subdivisions based on descriptions that refer to the copying technology they use.  In other words, how 
these machine make copy is a vital element of the structure and logic of the concessions under this 
heading and, consequently, also a cr ucial element that informs their scope.  This view is confirmed by 
the use in these two subheadings of the term "ope rating by", which denotes the intention to explain 
how these machines "work."1871  More importantly, we observe that heading 9009 does not make use 
of residual categories in the form of "other" categor ies, which strongly suggests to us that the heading 
is meant to cover very specific forms of producing a copy.   
7.1447  We agree with the complainants that this structure of the head ing leads to the conclusion that 
subheadings 9009 11 and 9009 12 are both limited a nd exhaustive.  First, we cannot accept the 
European Communities' proposition that everything  not "direct process" is necessarily, therefore 
"indirect process."  The subheadings describe particul ar processes with specificity, which supports the 
conclusion that these subheadings are not to be br oadly construed.  At the same time neither 
subheading refers to itself as a residual or "other" category.  Had the drafters intended to include 
under 9009 12 all forms of electrostatic photocopyi ng which were not "direct", they would have 
described the category as "other", which is the nor mal practice throughout the HS.  Therefore, we 
cannot conclude that "indirect process" in th e concession in subheading 9009 12 simply means all 
electrostatic photocopying apparatus not included in  subheading 9009 11.  The concession must have 
meaning, and for an electrostatic photocopying appa ratus to fall within the scope of the concession in 
subheading 9009 12 it must produce photocopies by using an optical system and via an intermediate 
(i.e., indirect process).   
7.1448  Additionally, when the terms of the subheading 90 09 12 are seen in the context of the rest of 
the heading, we consider that "indirect process" phot ocopying entails a very specific process in which 
the optical system has a very precise role, i.e. to reflect the image of the original document directly 
onto an intermediary, generally an electrostatic drum , in the form of a latent image which is then, 
from this drum, transposed and fixed onto ordinary  paper using electrostatically charged powder and 
heat.  We further note that none of the definitions submitted to us with respect to "photocopying", or 
any other related terms, mention "light" in associ ation with any purpose ot her than producing an 
"immediate" latent image of the original. No referen ce is made, e.g., to the use of light as part of the 
                                                      
1870 (Exhibit JPN-23). 
1871 In this regard we note that the transitive verb  "operate" means "to cause to function: work" (The 
Merriam-Webster Online dictionary defines "operate" as " transitive verb  1 : bring about, effect;  2 a : to cause to 
function : work b : to put or keep in operation; 3 : to perform an operation on; especially  : to perform surgery 
on" ("operate." Merriam-Webster Online Dictio nary. 2010. Merriam-Webster Online. 31 May 
2010 <http://www.merriam-webst er.com/dictionary/operate>).  WT/DS375/R 
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  digitalization of the original document. This indi cates to us that under the concession at issue, the 
meaning of "optical system" and "intermediate" are incompatible with the an interpretation that would 
see these terms as including the use of a scanner
1872 or of an even more indirect process where the 
image is projected onto the drum by something other th an the optical system.  Again, we consider that 
this directs us to read these two terms ("optical system" and "intermediate") as having very specific meanings that limit them to the analogue copying process described above. 
7.1449  Based on the foregoing, we conclude that the phrase "... reproducing the original image via an 
intermediate ...", as used in the concession, indicat es that "indirect process" electrostatic photocopying 
requires the apparatus to use an optical system to project the original image directly and immediately 
onto a light-sensitized surface creating a latent image (in an electrostatically charged drum or on a plate) which is subsequently adhe red to plain paper using electrost atically charged powder (toner) and 
heat to form a final copy of the original image on the paper. 
1996 HSEN to Heading 9009 
7.1450  We begin with the parties' arguments on the relevance of the 1996 HSEN to heading 9009.  
We disagree with the European Comm unities that this HSEN is irrelevant.  In fact, we consider it  
valuable contextual material that confirms our  textual conclusions above on the scope of the 
concession at issue.  While it is true that, as any HSEN, the 1996 HSEN to heading 9009 is not 
binding under the HS and may have less probative va lue than other binding HS material, such as the 
texts of the headings themselves and HS Chapter or heading Notes, this does not mean that, by 
definition, HSENs do not have probative value at all under the Vienna Convention.  In fact, as stated 
by the Appellate Body in EC – Chicken Cuts , the "probative value" of HS material has more to do 
with  "how relevant" such material is "to the inte rpretative question at issue" than necessarily with the 
fact that this material is binding or not.  Therefor e, "it cannot be excluded that an Explanatory Note 
that directly addresses a given interpretative question will be more probative than a Chapter Note that 
does not relate specifically to that interpretative question"
1873, to the extent that the HSEN provides 
further clarifications and does not contradict the Ch apter Note.  We consider that the 1996 HSEN to 
heading 9009 at issue here falls exactly in the kind of situation described in the above statement from 
the Appellate Body.  By defining precisely various terms of the concession in HS1996 subheading 9009 12 (e.g. what is an "optical system" and how it works and, more importantly, what is "indirect 
process"), this HSEN "directly addresses" the "int erpretative question" before us: the scope and 
meaning of the concession under 1996 HSEN to heading 9009.  We thus conclude that 1996 HSEN to 
heading 9009 provide us with a very high probative value.   
7.1451  The language of Part (A)(1) starts by reproducing verbatim the language of HS1996 
subheadings 9009 11 and 9009  12 and then it defines what "direct" and "indirect" processes are.  We 
consider that this means, at least with respect to "indirect process", that the definition in the HSEN is 
rather exhaustive.  We note that in this defi nition no reference is made to anything that would 
resemble the digital copying process (e.g. the digi talization process through a scanner, the saving of 
the data in the memory of the machine before bei ng printed), other than the use of an electrostatic 
process to print the image (and, even  in this case, the printing is done differently by reconstructing the 
                                                     
 
1872 We note that while a scanner might have within it an optical system, it is not itself an optical 
system and it does not use the optical system to project the original image onto the drum, but rather to digitalize the original image and store it as data.  See How Scanners Work (Exhibit EC-65). 
1873 Appellate Body Report on EC - Chicken Cuts , para. 224, fn. 431. WT/DS375/R 
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  digital image onto the drum), which can be used in other technologies that could be classified under 
other headings.
1874   
7.1452  We further recall our observation above that the "i ncorporation" of an "optical system" is part 
of the description in the concession.  This means that  an "optical system" is part of the understanding 
of what constitutes an electrostatic photocopying appa ratus using the indirect process and, ultimately, 
of what the scope of the concession is.  We recal l our conclusion above that heading 9009 indicates 
that the required "optical system" relates to the combination of, inter alia , a "light source", mirrors 
and lenses that are necessary elements to the an alogue copying process, so as to allow the projection 
of the optical image of the original onto the elect rostatic drum.  We consider that the 1996 HSEN 
confirms such an understanding not only by defining what are the main components of the 
"optical system" ("a light source, a condenser, lenses , mirrors, prisms or an array of optical fibres"), 
but also, and more importantly, by explaining what is  its purpose and how it works:  to "project[] the 
optical image of an original docum ent on to the light-sensitive surface." 
7.1453  Given the forgoing considerations, we consider that the context provided by the language of 
the 1996 HSEN to heading 9009, furthers our unde rstanding of the plain text of the terms of 
subheading 9009 12 in the EC Schedule.  Reading the concession in its context with respect to the rest 
of the relationship between Chapters 90, 84, and 85; based on the structure and scope of heading 
9009, and given the explicit and direct references to  the relevant terms in the 1996 HSEN to heading 
9009; we conclude that the ordinary meaning of electrostatic photocopying apparatus operating by 
reproducing the original image via an intermedia te onto the copy (indirect process) in HS1996 
subheading 9009 12, is limited to the very specifi c "analogue" photocopying process described in the 
HSEN. 
Object and purpose  
7.1454  The parties provided no specific additional argumentation on the object and purpose of this 
tariff concession, outside their more genera l arguments on the object and purpose of the WTO 
Agreement  and the GATT 1994. 
7.1455  We recall our finding in paragraph 7.547 a bove, that the object and purpose of the WTO 
Agreement and the GATT 1994 is to ensure the security an d predictability of mu tually advantageous 
and reciprocal tariff reductions.  We see nothing in our understanding that the subheading 9009 12 in 
the EC Schedule is limited to the type of tec hnology explicitly described therein, that would 
contradict that object and purpose of the WTO Agreement and the GATT 1994. 
Subsequent practice  
Arguments of the Parties 
7.1456  The European Communities  presents argumentation on the classification practice of itself, 
the complainants, and other Members which it argu es supports its position that digital copying is a 
form of photocopying within the meaning of HS1996 heading 9009, and more specifically subheading 
9009 12.  In particular, the European Communitie s mentions a 1995 Classification Regulation from 
the Commission, the challenged measures, and th e European Court of Justice judgment in the Kip 
                                                      
1874 For example, we note that all parties agreed that the print engine (or print module) contained in the 
products at issue, might also be used as a component in other technologies that would not connect to a computer 
and therefore not be classifiab le in subheading 8471 60.  WT/DS375/R 
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  case.
1875  The European Communities also presents examples of purported practice by the United 
States and Chinese Taipei of classifying digital copiers in subheading 9009 12.1876  Finally, the 
European Communities also cited discussions over the scope of subheading 9009 12 in the WCO, 
which it argues evidences that the position of the co mplainants' put forward in this dispute was not 
shared by many other WTO Members.1877 
7.1457  The United States  disputes the European Communities' interpretation of its customs 
classification practice with respect to digital copiers.1878   
7.1458  Japan rebuts the arguments of the European Co mmunities that it had a consistent practice by 
bringing up a declaration from the European Commun ities made in the context of laying out the scope 
of coverage of an anti-dumping duty order, that digital copying is not photocopying.1879   
Consideration by the Panel 
7.1459  The Panel  recalls that much of the material re ferenced by the European Communities as 
subsequent practice demonstrating a common, consistent and concorda nt practice of the Members is 
similar or identical to that submitted in relati on to the discussion of subheading 8471 60.  We also 
note that the anti-dumping order submitted by Japan, if  it were even evidence of subsequent practice, 
would only serve to inform that within the Eur opean Communities there has been inconsistency.  
7.1460  Therefore, we reiterate our conclusion in  paragraph 7.1351 above that the documents 
presented to us are by no means "consistent, co mmon and concordant", and we cannot discern a 
pattern implying the agreement of the parties to the WTO Agreement  and the GATT 1994 regarding 
the interpretation of the concession in 9009 12 from these documents.  
7.1461  With respect to the discussions at the WCO, we note that they took place between 1998 and 
2003 and that there was significant disagreement among the Members as to the parameters of HS1996 headings 8471 and 9009 and whether there was any ove rlap.  In fact when the issue came to a vote 
there was a tie.
1880  Therefore, while these discussions do s how that the views of the complainants 
were not shared by many WTO Members, they also show that the position of the European 
Communities, was also not shared by many WTO Members.  Therefore, we do not see how these discussions could reflect the common intentions of the parties and inform our interpretation.
1881  
                                                      
1875 European Communities' first written submission, paras. 385-389. 
1876 European Communities' first written submission, paras. 390-396; European Communities' second 
written submission, paras. 121-124. 
1877 European Communities' first written submission, paras. 397-399. 
1878 United States' first oral statemen t, paras. 9 and 11; United States' second oral statement, para. 42 
(arguing that "[t]he EC in fact points to nothing more than two opinions predating the ITA negotiations — while 
ignoring the large number of opinions before the Pa nel in which US Customs and Border Protection (CBP) 
treated MFMs as "input or output units" of subheading 8471 60" and referring to the 16 CBP rulings between 1996 and 1999 in Exhibits EC-73 and EC-74 classifying MFMs in 8471.60). 
1879 Japan's second written submission, para. 60. 
1880 WCO's letter of 29 September 2009, para. 27 (explaining that, "[w]hen the matter was put to a roll-
call vote, 33 delegates voted in favour of the proposition that "photocopying" was not limited to the projection 
of an image onto a photosensitive surf ace and that present heading 90.09 di d cover digital copying, while 33 
delegates voted against these propositions.  There was one abstention."). 
1881 We also note that one of the parties to the di spute, Chinese Taipei, is not a Member of the WCO 
and could therefore not partic ipate in those discussions. WT/DS375/R 
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  Other Arguments
 
Arguments of the Parties 
7.1462  The European Communities  cited the negotiating history of the ITA and the ITA II as 
supplementary means of interpreta tion of the concession in 9009 12.1882  We also note that Japan  and 
Chinese Taipei  have cited to material from the HS2007, in cluding an HSEN, with respect to their 
arguments regarding the scope of the concession fo r electrostatic photocopying apparatus "operating 
by reproducing the original image via an interm ediate onto the copy (indirect process)" under HS1996 
subheading 9009 12. In particular, they argue that the heading 8443 in the HS2007 as well as the 
HSEN to that heading provide other interpretative guidance to determining the scope of the original 
concession in 9009 12.1883 
7.1463  We note that the United States  and the European Communities have argued that neither the 
HS2007 nor the 2007 HSEN to heading 8443 could ser ve as any sort of interpretative tool under 
Articles 31 and 32 of the Vienna Convention to an  understanding of the common intentions of the 
Members with respect to the meaning of the concession in subheading 9009 12 in 1996.1884 While 
rejecting the use of these tools in the instant ca se, the European Communities does believe that the 
HS2007 and the 2007 HSEN could, in certain cases,  be relevant as "supplementary means of 
interpretation" for the interpretation of an HS 1996 heading-based concession under Article 32 of the 
Vienna Convention if both old and new headings had identical wording and all the relevant contextual 
elements (e.g. Section, Chapter and headi ng Notes; potentially overlapping headings and 
subheadings) had likewise been carried over unchanged  from one version of the HS to the next.1885 
The United States, however, rejects even the theo retical possibility, raised by the European 
Communities, that subsequent versions of the HS following the version under which WTO tariff 
concessions were based on could qualify as " other  supplementary means of interpretation" under 
Article 32 of the Vienna Convention.  The United States considers that modifications to the HS, 
agreed upon nearly ten years after the relevant c oncessions were made, provide no insight into the 
meaning of those concessions.1886 
Consideration by the Panel 
7.1464  The Panel  recalls that recourse may be had to suppl ementary means of interpretation in order 
to confirm the meaning resulting from the application of Article 31 of the Vienna Convention, or to 
                                                      
1882 European Communities' first written submission, paras. 397-406. 
1883 Japan's first written submission, paras. 165-168;  Japan's second written submission, paras. 71-73;  
Japan's comments on the European Communities' respon se to Panel question No. 134; Chinese Taipei's first 
written submission, paras. 171 and 636-638;  Chinese Taipei's response to Panel question No. 134.   
1884 United States' response to Panel questions No. 132 and 134;  United States' comments on the 
European Communities' response to Panel question No. 134 (also noting, in both its response and comment to 
the EC response to Panel question No. 134, that the fact that WTO Members' Schedules of Concessions have not 
yet been certified in HS2007 nomenclature indicates the lack of agreement on the relationship between the HS2007 and Members' Schedules); European Communitie s' first written submission, para. 408;  European 
Communities' response to Panel questions No. 35(b) and 134. 
1885 European Communities' response to Panel question No. 134. 
1886 United States' response to Panel questions No. 132 and 134;  Unites States' comments on the 
European Communities' response to Panel question No. 134 (also noting, in both its response and comment to 
the EC response to Panel question No. 134, that the fact that WTO Members' Schedules of Concessions have not yet been certified in HS2007 nomenclature indicates the lack of agreement on the relationship between the 
HS2007 and Members' Schedules).  WT/DS375/R 
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  determine the meaning when the interpretation acco rding to Article 31 leaves the meaning ambiguous 
or obscure or leads to a result which is manifestly absurd or unreasonable.
1887   
7.1465  With respect to the landscape papers submitted as  part of the negotiations of the ITA, we 
recall our determination in paragr aphs 7.581 above, that considerati on of "landscape papers", which 
were only reviewed by a subset of the negotiatin g ITA participants (the "Quad" members, in 
particular) and were not circulated at any point in  time prior to this dispute, should not have any 
bearing on our interpretation of the concessions ar ising under the ITA, that were subsequently 
incorporated into ITA participants' Schedules.   
7.1466  Regarding Japan's proposals during the ITA II negotiations, we recall our finding in 
paragraph 7.587 above that we shoul d not give much weight to statements made in the context of 
negotiations for a separate, successor agreement that has not yet been concluded, and where the extent 
of progress towards reaching an agreement is unclear.   
7.1467  Finally, we recall our conclusi on in paragraph 7.1367, that the HS2007 and the 2007 HSEN to 
heading 8443 cannot serve as means of supplementa ry interpretation for the concessions in HS1996 
8471 60 and 9009 12.  
Conclusion on ordinary meaning  
7.1468  The Panel  notes that the context examined, in pa rticular the 1996 HSEN to heading 9009, 
informs the view that the "indirect  process" utilized by an electrosta tic photocopying apparatus, that is 
covered under subheading 9009 12, is identical to th e process utilized by "analogue photocopiers" to 
make photocopies. We thereby conclude that the or dinary meaning of the concession for electrostatic 
photocopying apparatus operating by "indirect proc ess" in subheading 9009 12 of the EC Schedule, 
seen in context and in light of the object and purpose of the Agreement, is limited to the photocopying 
process used by "analogue photocopiers".   
(ii) Are ADP MFMs covered by the concession in Subheading 9009 12? 
7.1469  Now that we understand the scope of the ta riff concession set forth in HS1996 subheading 
9009 12 of the EC Schedule, we must determine whether the products at issue, ADP MFMs, are 
covered by the scope of this concession, which carries with it a 6 per cent ad valorem duty.  If 
ADP MFMs are covered by the scope of this c oncession, then the European Communities may be 
entitled, as it argues, to assess a 6 per cent ad valorem  duty on some of these products rather then the 
duty-free treatment the complainants claim these products deserve.  
7.1470  We note that the parties have explained the process by which ADP MFMs create copies.   The 
United States and Japan describe a digital copier as a digital device with an input unit (a scanner unit) 
and an output unit (a printer unit that allows th e digital output from the device to be printed).1888  They 
submit that a document is converted into digital info rmation and that the print unit allows that digital 
information to be printed in paper form.   The Un ited States explains that it is the scanner component 
that creates the digital master file of the document by converting points of light into electrical signals 
and then digital data.  Further, the United States expl ains that it is the printer component that converts 
the file into one or more prints.   Both the Un ited States and Japan submit that the MFM scanner uses 
light only once, to convert the original document into  digital data.   Japan and Chinese Taipei explain 
                                                      
1887 See para. 7.65 above. 
1888 See, e.g., United States' first written submission,  para. 157-160; United States' second written 
submission, paras. 111-112; Complainants' response to Panel question No. 79. WT/DS375/R 
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  that digitalization is done through a "charged c ouple-device" (CCD) array consisting of numerous 
diodes that convert photons of light into electrical impulses that become the digital signal.   The digital data can then be transmitted in order for such data to be printed.  Once the image is digitalized, 
as many prints as necessary can be made.    Accord ing to Chinese Taipei, an MFM then uses a laser to 
transmit the digital data onto an electrostatic drum to form an image of the original document, this 
image is then printed using an electrostatic print engi ne to transfer this image by means of toner to a 
carrier media such as paper.  
7.1471  The European Communities explains that when th e image is placed on the glass plate of the 
digital photocopier, it is illuminated and reflected by an  angled mirror to another mirror and that there 
can be more than two mirrors. It explains that each  mirror is slightly curved  to focus the image it 
reflects onto a smaller surface.  The last mirror then  reflects the image onto a lens.  The lens focuses 
the image through a filter on the "charged-couple de vice" (CCD) array  which converts the original 
image into electrical signals.  The light source thus  projects the image of the original document onto 
the "charged-coupled device" (CCD) , which converts it into electrical signals and creates a digital 
image.  Through a laser beam the digitalised imag e is transferred to an "electrostatic drum".  
Subsequently, the image is developed and printed. 
Arguments of the parties
 
7.1472  The European Communities  contends that ADP MFMs which have an electrostatic print 
engine and have a copying function th at is not secondary or is at least equivalent to the other functions 
of the apparatus are electrostatic  photocopying apparatus within th e scope of the dutiable concession 
in HS1996 subheading 9009 12.  The  Eur opean Communities considers that because light is used in 
digital copying, albeit in different ways than in  analogue photocopying, it follows that the latter 
process is also "photocopying" under the terms of the concession.  The European Communities further 
argues that in this latter process, when the origin al document is digitalized before the image is 
(re)created in the drum, not only one, but two "opt ical systems" are used, namely, the CCD of the 
scanner and then the "laser".  Finally, the European  Communities contends that, consistent with the 
terms of the concession, the digital process involves the use of not only one but various "intermediates" working together: a scanner, the laser  and finally the "electrostatic drum".  As the 
terms of the concession at issue have a broader mean ing than that professed by the complainants, the 
European Communities concludes that they also include digital copying as a form of "indirect process 
electrostatic  photocopying", despite the technol ogical difference between this process and the 
analogue copying process.  
7.1473  The complainants  argue that because ADP MFMs copy using a digital technology far 
different from "indirect process electrostatic photocopying", and because they have other functions unrelated to copying, these products can never fall under the dutiable concession under HS1996 
subheading 9009 12.  They contrast their understandi ng of what electrostatic photocopying using an 
"indirect process" means with the way copies are made using a "digital copying" process.  They 
consider that the differences between these two pro cesses confirm that "digital copying" can never be 
covered by the concession at issue.   
7.1474  In particular, the complainants focus on the diffe rent manner in which light is used by these 
two processes to support their views that ADP MFMs  are not within the scope of the concession in 
subheading 9009 12.
1889  Although they agree with the European  Communities that light is used and 
needed in "digital copying" , they argue that it is used with a very different purpose in digital copying; 
                                                      
1889 See, e.g., United States' first written submission, para. 158 and Exhibit US-90.  WT/DS375/R 
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  i.e., to enable the CCD-based scanner to convert the original document into "digital data", which, if 
needed, can then be printed by the m achine's electrostatic print engine.   
7.1475  Given that that the meaning of "photocopying" is limited to reflecting an optical image of the 
original onto the electrostatic drum to produce the latent image and not to collect digital data, the 
complainants contend that what digital copiers do is not photocopying within the meaning of heading 
9009.  Likewise, because the purpose of the optical sy stem as described in heading 9009 is to project 
the original image onto an electrostatic drum, the co mplainants argue that neither the "scanner" nor its 
CCD component can be understood as making up an "optical system" as is meant by the terms of the 
concession.  Similarly, they also assert that  reading the concession properly means that the 
"intermediate" refers to the electrostatic drum, which has the latent image projected onto it and then transfers it to the paper using electrostatically ch arged powder (toner).  Therefore, according to the 
complainants neither the "scanner unit" nor the "laser printer unit" that are necessarily used in "digital 
copying" can be seen, in isolation or conjunction, as the "intermediate" the concession describes. This 
confirms, they submit, that the concession is limited by a single and specific "intermediate", i.e., the 
"electrostatic drum".
1890 
Consideration by the Panel  
7.1476  The Panel  starts by recalling that it is undisputed that all ADP MFMs at issue only make 
copies digitally and that they do this using a scanner unit.  As a consequence, these machines never  
use the analogue copying process, which, as we have concluded above, characterizes indirect process 
electrostatic photocopying under the concession at issue.  We recall that we have concluded that the 
ordinary meaning of the terms of the concession for "indirect process electrostatic apparatus", seen in 
its proper context and in light of the object and purpose of the Agreement, in fact, does not include digital copying.   
7.1477  Based on our review of the submissions and th e evidence before us, we understand that ADP 
MFMs make copies via a process commonly known as "digital copying":
1891 which involves the use 
of a "scanner", which is a device or component that allows the conversion of information, such as text 
and images, into digital data.1892  Scanners always have an "ima ge sensor" as their core component, 
generally a charge-coupled device (or, simply "CCD").1893  In "digital copying" , when the original 
                                                      
1890 See, for example: United States' first written su bmission, paras. 71, 157, 159; United States' first 
oral statement, para. 37; United States' second written s ubmission, paras. 111-114; United States' second oral 
statement, para. 37; Japan's first wr itten submission, paras. 70-73, 107-122, 158-161 and 207; Japan's first oral 
statement, para. 37; Japan's second written submission, paras. 40-41; Chinese Taipei's first written submission, 
para. 574-584; Chinese Taipei's second written submission, paras. 299-300, 314, 319; complainants' responses 
to Panel question No. 29 (arguing that the WCO endorsed their view that digital c opiers are not photocopiers); 
Japan's responses to Panel questions Nos. 124; 131 and 136. 
1891 Exhibit JPN-35 (providing a graphic description); see also Exhibit EC-66 (containing a graphic 
description included in a 1998 non-paper allegedly tabl ed by Japan to the CITA). See European Communities' 
first written submission, footnote 255 to para. 371. 
1892 In other words, scanners are fundamental to the "digitizing" of the original document, i.e. the 
"capturing an analogue signal in digital form."  Broadly speaking, "digitizing" means "the representation of an object, image, sound, document or a signa l (usually an analogue signal) by a discrete set of its points or samples 
[,which occurs when these diverse forms of information]  ... are converted into a si ngle binary code," i.e. a 
sequence of 0s and 1s. ( Wikipedia , "Digitalizing", http://en.wikipedia.org/wiki/Digitizing#cite_note-2 (visited 
on 13 May 2010)). 
1893 We observe that the CCD technology was invented in 1969 by Willard Boyle and George E. Smith, 
two scientists from AT&T Bell Labs.  ( Wikipedia , http://en.wikipedia.org/wiki/Charge-coupled_device).  The 
CCD is "a collection of tiny light-sensitive diodes, which convert photons (light) into electrons (electrical 
charge)."  How Scanners Wo rk (Exhibit  EC-65).   WT/DS375/R 
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  document is placed on the glass plate of the machine, a lamp is used to illuminate the document. The 
image of the scanned document then reaches the CCD array of the scanner used in the machine 
through a series of mirrors, filters and lenses
1894 and is then converted into electrical signals 
(digital data) and saved as a "digital file." This "d igital data" is then stored as a "digital file" and 
arranged as "page data" which, through a "raster im age processor" (or "RIP"), is then broken down 
"into an array of tiny dots" (so it can be used by  the machine's laser).  Once this is done, this 
"page data" is sent to the "laser print unit" of  the machine, which is itself composed of a 
"laser beamer", a "moveable mirror" and "lenses". The "laser" receives the data (i.e., the tiny dots that 
make up the text and images) and through the "m oveable mirror" and "lenses" "reconstructs" or 
"recreates" the original document that was scanned in the beginning of the process by beaming pulses 
of "laser light" onto an electrostatic drum. From this point onwards, the operation proceeds in the similar manner as described above in the case of "analogue photocopiers."
1895 There is however an 
important overall difference in the way machines using these two processes output hard copies:  
unlike the case of "analogue photocopying", in the case of  "digital copying" there is no need to repeat 
the operation for each desired number of copies because, after a single scanning of the original document, a "digital file" is made and stor ed in the machine thus allowing the printing of as 
many copies as the memory of the device allows. The original document is thus no longer necessary 
after the scanning.
1896 
7.1478  With respect to CCD-based scanners, while it is tr ue that these devices indeed contain a "light 
source", "mirrors" and "lenses", the mere fact that they have such components does not make them an 
"optical system" within the meaning of the HSEN  and heading 9009. This is confirmed when the 
definition of "optical system" is seen in the contex t of the explanations of how the optical systems 
work in electrostatic photocopying apparatus – i.e ., in the description of the indirect process in the 
1996 HSEN to heading 9009, which is to project th e image onto a drum. This function has no relation 
to the way a scanner works (to convert the text into  digital data).  While generally speaking both the 
"drum" (in the "indirect process" as described  in the HSEN) and the scanner's CCD (in the 
digitalization process) are indeed "light sensitive", this fact alone cannot be dispositive because, as 
stated above, they fulfil different purposes.  Further,  evidence before us suggests that not all scanners 
use a CCD to convert text into digital data.  Inst ead, some of them use the so-called CIS ("Contact 
Image Sensor"), in which, unlike the case of CCDs, the digitalization does not involve the use of 
"mirrors, filters, lamp and lens" that scan back and forth, right to left, to cover the whole document 
placed in the glass platen of the scanner. Instead, in CIS-based scanners, the whole surface below the 
glass contains a "row of red, green and blue light emitting diodes (LED)".  The original document and 
the CIS are very close to each other.  The whole row of LEDs is lit at once and then the image is 
captured and digitalized.1897  Further, we have evidence indicating that CIS-based scanners are used in 
"digital copying".1898  The point here is that the fact that digitalization can be done without "mirrors, 
                                                      
1894 However, as explained in more details below, not all machines use CCD-based scanners and may 
instead contain a CIS-based scanner, which does not use "mirrors and lenses" at all. 
1895 However, one noteworthy difference between these two processes, even from this point onwards, is 
that generally a laser forms the image of the or iginal document in a reversed manner than 
"analogue photocopiers".  Rather than forming a latent image by discharging the areas of the drum protected 
from the light by the reflected image of the original docum ent, what the laser light disc harges are the lines of the 
original image itself, thus leaving the background "positively charged". ("How Laser Printers Work" – Exhibit 
US-86). 
1896 (Exhibit US-90); "How Laser Printers Work" (E xhibit US-86);  "How Scanners Work" (Exhibit 
 EC-65);  "How do Digital Copi ers Work?" (Exhibit US-55).   
1897 An explanation of CCD and, in particular, CIS is  provided in Exhibit EC-65 ("how scanners work", 
see page 4).   
1898 For example, we notice that certain MFMs can have CIS-based scanners (and make copies using 
them) rather than CCD-based ones, can be found, e.g., in Exhibit TPKM-82 (a WCO document describing an  WT/DS375/R 
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  lens etc." in the case of CIS-based scanners, reinfor ces the conclusion that an "optical system" within 
the meaning of the 1996 HSEN (and, ultimately, within the meaning of the concession in HS1996 subheading 9009 12) has a very precise meaning that  describes an analogue rather than a digital 
process. 
7.1479  We consider that the above facts are sufficien t for us to conclude that ADP MFMs are not 
covered by the concession in the EC Schedule fo r electrostatic photocopying apparatus operating by 
reproducing the original image via an intermediate  onto the copy (indirect process), as described in 
HS1996 subheading 9009 12.   
7.1480  We consider however that other objective characteristics ADP MFMs possess also support the 
conclusion that they are not captured by this  dutiable concession, chiefly among them is the 
undisputed fact that these machines are connectable to computers and/or computer networks.  It is this 
intrinsic characteristic of ADP MFMs that allows th em to perform various tasks that further distance 
them from the "unifunctional", analogue character th at characterizes machines under the concession in 
HS1996 subheading 9009 12.  ADP MFMs, it is undisputed, can not only make digital copies, but also 
deal with digital data in various different ways:  receiving and printing digital data from an automatic 
data-processing machine or network; creating and se nding digital data to an automatic data-processing 
machine or network (if having an independent scanni ng unit) and, if containing a faxing function, 
scanning and transmitting facsimiles and receiving and printing facsimiles. 
7.1481  Given the above considerations, because th e ADP MFMs at issue are not photocopiers 
incorporating an optical system that operate by reproducing the original image onto the copy via an 
intermediate (indirect process), they cannot fall w ithin the scope of the concession in subheading 9009 
12 of the EC Schedule, regardless of the primary,  secondary, or equivalent nature of the copying 
function vis-à-vis  these machines' other functions. 
(iii) Are ADP MFMs covered by the concession in HS1996 subheading 8472 90? 
Arguments of the Parties
 
7.1482  The European Communities  first mentions HS1996 subheading 8472 90 as a contextual 
argument in support of its view that digital copiers are covered under the subheading for 
photocopying apparatus in HS1996 subheading 9009 12.   In particular, the European Communities 
argues that: 
"[E]ven on the complainants' overbroad interpretation of HS96 8471, stand-alone 
digital copiers could not be classified under that heading, because they are not 
connectable to an ADP machine.  At th e same time, the complainants' unduly narrow 
interpretation of the term 'photocopying'  excludes these machines from HS96 9009.  
As a consequence, on the complainants ' interpretation, stand-alone digital 
photocopiers would have to be classified  under subheading HS96 8472 90 ('other'), a 
residual subheading within a residual heading covering 
                                                                                                                                                                     
ADP MFM, Brother MFC-8600, that could have a "scan input assembly" incorporating a "CIS unit") and 
Exhibit JPN-1 (a brochure of an ADP MFM, Panasonic KX-FLB881, indicating that its "scanning system" is 
CIS and stating the following about its copy function: " A CIS (Contact Image Sensor) makes possible high-speed scanning and high-speed image reproduction even when the spine is  raised slightly above the glass 
plate."). WT/DS375/R 
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  Other office machines (for example hectograph or stencil duplicating 
machines, addressing machines, auto matic banknote dispensers, coin 
sorting machines, coin-counting or wrapping machines, pencil 
sharpening machines, perforating machines or stapling machines 
Clearly, however, a digital photocopier has much more in common with an analogue 
photocopier, in terms of both technology a nd uses, than with any of the machines 
covered by HS96 8472."
1899 
7.1483  We observe that, in its first written submission,  the European Communities seemed to think it 
absurd that MFMs or "stand-alone digital c opiers" could be classified under HS1996 subheading 
8472 90 based on the low-tech machines that we re included in the illustrative list in the 
subheading.1900  However, in its first oral statement,  the European Communities submitted that if 
stand-alone digital copiers fall within 8472 90 then  the MFMs at issue would also be prima facie 
classifiable under that subheading as well, in addition to being prima facie  classifiable under heading 
8471 60.  Therefore, it would be necessary to dete rmine on a case-by-case basis, and having regard to 
the relevant HS rules (Note 3 to Section XVI and GI R3), whether the products at issue are covered by 
concession 8471 60 or by the concession for 8472 90.1901  The European Communities asks the Panel 
to rule on whether the MFMs at issue are covere d by subheadings 8471 60 or 8472 90 in its schedule 
in order to secure a positive resolution to the dispute.1902 
7.1484  Japan  argues that the reasoning that because stand-alone digital copiers fall within 
subheading 8472 90 so do MFMs ignores the important  difference between the two types of products:  
the MFMs ability to connect to an automatic data-processing machine and process data from an 
automatic data-processing machine.1903  Chinese Taipei concurs with Japan that an ADP MFM can 
only be classifiable under heading 8471 60 in view of its computer connectivity and that 8472 90 will 
not be prima facie  applicable to an ADP MFM.1904  The United States , however, seems to agree that 
an ADP MFM could be prima facie  classifiable under both subhead ings 8471 60 and 8472 90.  
However, the United States believes that an ADP MF M is a "composite machine" within the meaning 
of Note 3 to Section XVI and, as such, must be cl assified as consisting only of that component or as 
being that machine which performs the principal function.  In the case of ADP MFMs, the United 
States submits that the principal function of MFMs th at connect to an ADP is imparted by the print 
module – whether printing a document scanned into the MFM's memory or printing a file from the 
ADP machine, therefore these devices must be classified under subheading 8471 60.1905  The United 
States also notes that if the European Communities were correct, and the ADP MFMs at issue should 
be classified under 8472 90 and subject to  a bound ra te of 2.2 per cent,  then the 6 per cent duty the 
European Communities is admittedly applying would still be in excess of its commitments and 
contrary to Articles II:1(a) and II:1(b) of the GATT 1994 and the EC Schedule.1906 
                                                      
1899 European Communities' first written submission, paras. 378-379. 
1900 European Communities' first written submission, para. 340. 
1901 European Communities' first oral statement, paras. 67-68; European Communities' second written 
submission, para. 102. 
1902 European Communities' response to Panel question No. 127(c). 
1903 Japan's second oral statement, para. 11; Japan's response to Panel question No. 127(a). 
1904 Chinese Taipei's response to Panel question No. 127(a). 
1905 United States' response to Panel question No. 127(a). 
1906 United States' comments on the European Communities' response to Panel question No. 127(c).  WT/DS375/R 
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  Consideration by the Panel
 
7.1485  With respect to whether ADP MFMs could al so be covered by the concession in HS1996 
subheading 8472 90 we note that the European Co mmunities has never specifically argued that it 
believes ADP MFMs should receive the tariff treatme nt for products falling within the scope of the 
concession in HS1996 subheading 8472 90.  Rather it has asserted that this is a logical conclusion that 
flows from the complainants'  arguments that digital products, in cluding stand-alone digital copiers, 
belong in Chapter 84 of the HS.  Additionally, a lthough an understanding of the ordinary meaning of 
the concession is essential for any determination of  whether a particular product or products falls 
within its scope, the European Communities has not  provided any argumentation with respect to the 
interpretation of the terms of this subheading pursuant to the rules codified in the Vienna 
Convention.1907      
7.1486  We recall that the United States did indicate that, in its view, some ADP MFMs might fall 
within the concession for "other" office machin es in HS1996 subheading 8472 90 and therefore the 
current 6 per cent dutiable treatment would still be in  excess of that provided for in the EC Schedule.  
However, like the European Communities, the United States provided no argumentation on the 
ordinary meaning of the concession.  Additionally, we note that the complainants have not raised a 
claim that the current tariff treatment of ADP MF Ms, i.e., 6 per cent, is inconsistent with the 
European Communities' obligations under Article  II:1(b) of the GATT 1994 because those products 
should have received the tariff treatment set fort h in the concession for "other" office machines in 
HS1996 subheading 8472 90.  Indeed, the joint Panel re quest specifically asserts that the products at 
issue are entitled to duty-free treatment not a lesser dutiable treatment than that provided for under the 
challenged measures.   
7.1487  Given the lack of argumentation on the possibility that ADP MFMs could fall within the 
scope of HS1996 subheading 8472 90 and the lack of argumentation on the ordinary meaning of the 
concession in HS1996 subheading 8472 90 we cannot conclude that the European Communities has 
demonstrated that the products at issue fall within the scope of this concession.  With respect to the 
arguments of the United States, even if some of the products did fall within the concession in HS1996 
subheading 8472 90, the complainants did not raise a cl aim in the joint Panel request alleging that the 
European Communities was charging duties in excess of  those provided for in this subheading of its 
Schedule.  To permit the United States to pursue su ch a claim now would be to exceed our mandate.  
Therefore, the Panel will not make any findings with  respect to the scope of the concession in HS1996 
subheading 8472 90 as it appears in the EC Schedu le, whether ADP MFMs fall within the scope of 
that concession, or whether the European Communiti es is charging duties in excess of those provided 
for in subheading 8472 90 of its Schedule.     
(iv) Conclusion 
7.1488  In summary, the Panel has concluded that at least some of the MFMs at issue, as described by 
the complainants in footnote 15 of the joint Pane l request, fall within the scope of the subheading 
8471 60, and that none of the MFMs at issue fa ll within the scope of the concession in HS1996 
subheading 9009 12.  The Panel makes no finding as to whether some of the products at issue may 
also fall within the scope of subheading 8472 90 and tariff item number 8472 90 80 of the EC Schedule.
   
                                                      
1907 European Communities' response to Panel question Nos. 44 and 127(c), paras. 55-57; European 
Communities' comments on the complainants' responses to Panel question No. 127.   WT/DS375/R 
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  7.1489  We will now apply these conclusions about the sc ope of the coverage of the concessions in 
the European Communities schedule and whethe r ADP MFMs fall within that scope to a 
determination of whether the challe nged measures provide for tariff treatme nt that is in excess of that 
required by the EC Schedule or provides less favourab le treatment for the products at issue than that 
provided for in the EC Schedule. 
(d) Do the Measures at Issue Provide for Duties on ADP MFMs which are in excess of those set 
forth in the EC Schedule? 
7.1490  We recall our reasoning in para graphs 7.97-7.102, above that Article II:1(b) of the GATT 
1994 requires that Members not apply ordinary custom s duties in excess of those provided for in their 
Schedule.  Therefore, in this section we will co mpare the tariff treatment provided to ADP MFMs 
under the challenged measures with that provided fo r in subheading 8471 60 to determine whether the 
challenged measures provide for du ties being applied to ADP MFMs which are in excess of those set 
forth in the EC Schedule, such that the European  Communities is in breach of its obligations under 
Article II:1(b) of the GATT 1994.
1908 
(i) Commission Regulation No. 517/1999  
7.1491  We note our conclusion in paragraph 7. 1215 above, that Commission Regulation 
No. 517/1999 requires that a MFM meeting the descrip tion set forth in item 2 of the Annex must be 
classified under tariff item number 9009 12 00, which sets a duty rate of 6 per cent. 
7.1492  We also recall our conclusion that the products  at issue do not fall within the scope of 
products defined in tariff item number 9009 12 00, and that at least some of them will fall within the 
scope of tariff item number 8471 60, which is a duty-free concession.  Therefore, because Commission Regulation No. 517/1999  requires the impos ition of a 6 per cent duty on products that 
the European Communities is obligated to provide du ty-free treatment for, the measure is inconsistent 
with the European Communities' obligations under Article II:1(b) of the GATT 1994.   
(ii) The 2005 Statement 
7.1493  We recall our conclusion in para graph 7.1221 above that if a na tional customs authority were 
to follow the non-binding guidance in the 2005 Statem ent then it would proceed to classify MFMs 
which can photocopy in black and white 12 or mo re pages per minute as a photocopier under tariff 
item number 9009 12 00 which sets a 6 per cent duty rate.  
7.1494  We also recall our conclusion that the products  at issue do not fall within the scope of 
products defined in tariff item number 9009 12 00 of th e EC schedule, and that at least some of them 
will fall within the scope of tariff item number 8471 60, which is a duty-free concession.  Therefore, 
to because the 2005 Statement guides the Europe an Communities, through its national customs 
authorities, to uniformly apply a duty of 6 per cent on products that the European Communities is obliged to provide duty-free treatment for, the measure is inconsistent with the European 
Communities' obligations under Ar ticle II:1(b) of the GATT 1994.  
                                                     
 
1908 As noted in paragraph 7.102 and fn. 975 above, because of the relationship between the obligations 
in Articles II:1(a) and (b), we will begin our analysis of whether the tariff treatment provided for in the 
European Communities' measures is consistent with Ar ticle II of the GATT 1994 with an analysis of the 
obligation in Article II:1(b).  Subsequently, we will move on to address the complainants' claim that the 
European Communities is also acting inconsisten tly with the obligation in Article II:1(a).  WT/DS375/R 
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  (iii) Commission Regulation No. 400/2006 
7.1495  We recall our conclusion at paragraph 7. 1228 above that Commission Regulation No. 
400/2006 requires that a multifunction machine as descr ibed in item 4 of the Annex to the Regulation 
shall be classified under CN code 9009 12 00, which sets a duty rate of 6 per cent. 
7.1496  We also recall our conclusion that the products  at issue do not fall within the scope of 
products defined in tariff item number 9009 12 00, and that at least some of them will fall within the 
scope of tariff item number 8471 60, which is a duty-free concession.  Therefore, because Commission Regulation No. 400/2006 requires the impos ition of a 6 per cent duty on products that 
the European Communities is obligated to provide du ty-free treatment for, the measure is inconsistent 
with the European Communities' obligations under Article II:1(b) of the GATT 1994.    
(iv) CN2007 codes 8443 31 10, 8443 31 91, and 8443 31 99 
7.1497  Unlike Commission Regulation Nos. 517/1999 and 400/2006 and the 2005 Statement, the 
CN2007 does not subject ADP MFMs to a 6 per cent duty via classification under HS1996 
subheading 9009 12.       
7.1498  The CN2007, as well as the subsequent versions  of the CN to date, is based on HS2007, 
which made a variety of changes in headings covering the very products at issue in this dispute.  In 
fact, we observed that the HS2007 completely removed HS1996 subheading 9009 12.  Moreover, 
several products that used to be classifi able under different HS1996 subheadings, including inter alia  
some input or output units that used to be classifiable under HS1996 subheading 8471 60, were 
merged under a new HS2007 heading 8443. The Europ ean Communities contends that this was also 
the case for photocopiers covered under HS1996 subhead ing 9009 12, however th is interpretation was 
not accepted by all the contracting parties to the HS.
1909 This new heading includes a subheading 
8443 31 for "[m]achines which perform two or more of  the functions of printing, copying or facsimile 
transmission, capable of connecting to an automa tic data-processing machine or to a network".  
7.1499  In implementing HS2007, the European Comm unities created its own eight-digit tariff item 
numbers as subcategories of the subheading.  Su bheading 8443 31 was subdivided in three categories 
as follows: 
                                                      
1909 WCO response to Panel questions, pp. 6-12.  We note, in addition, that WTO document 
G/MA/W/76 circulated tables with "correlation tables" linking HS2007 with the previous version of the 
nomenclature.  While recognizing that the tables expressl y indicate that they have "no legal value", we observe 
that page 25 contains a remark for HS2007 subheading 8443 31 explaining that the amendments were made "due to technological progress in the high technology sector, notably concerning the classification of apparatus 
with multiple reproduction functions".  The table in page  25 of this document also explains that the new 
subheading results from moving certain products which were used to be classified under ex8443.51*, ex8471.60, ex8517.21, ex9009.11*, ex9009.12* and stressing that there is "no consensus" on the subheadings 
with the asterisk.   WT/DS375/R 
WT/DS376/R WT/DS377/R 
Page 432 
  
  CN2007 
code Description Conventional 
rate of duty 
(%) 
8443 Printing machinery used for printing by means of plates, cylinders and 
other printing componen ts of heading 8442; other printers, copying 
machines and facsimile machines, wh ether or not combined; parts and 
accessories thereof:  
 (...)  
 - Other printers, copying machines and facsimile machines, whether or not 
combine  
8443 31 - - Machines which perform two or more of the functions of printing, copying 
or facsimile transmission, capable of connecting to an automatic data-
processing machine or to a network:  
8443 31 10 - - - Machines performing the functions of copying and facsimile 
transmission, whether or not with a pr inting function, with a copying speed 
not exceeding 12 monochrome pages per minute Free 
 - - - Other  
8443 31 91 - - - - Machines performing a copying function by scanning the original and 
printing the copies by means of an electrostatic print engine  6 per cent 
8443 31 99 - - - - Other   Free 
 
7.1500  We observe that one of these CN2007 cod es 8443 31 91 provides for a 6 per cent ad valorem  
duty for products classifiable therein.  Speci fically, pursuant to CN2007 code 8443 31 91 the 
European Communities would apply a 6 per cent dut y to "[m]achines performing a copying function 
by scanning the original and printing the copies by m eans of an electrostatic print engine."  All the 
remaining products classifiable under 8443 31 are provide d duty-free treatment and are, therefore, not 
relevant for our analysis.  We recall our conclu sion in paragraphs 7.123 8-7.1239 above, that the 
existence of these two eight-digit tariff item nu mbers under the same subheading, means that ADP 
MFMs with a fax function which copy at a speed exceeding  12 monochrome pages per minute are 
subject to the 6 per cent duty under 8443 31 91 wh ile those that copy at rates of 12 monochrome 
pages per minute or slower are exempt from duties. 
7.1501  We recall our determination in paragraph 7.1397 above that certain ADP MFMs fall  within 
the scope of the duty-free concession in the EC Schedule in subheading 8471 60.1910  We also stated 
that a decision on whether a particular ADP MF M fell within the duty-free concession could only be 
made on a case-by-case basis, based on the objective ch aracteristics of a product, with due regard to 
the guidance provided by the rules of the HS1996 (i ncluding relevant chapter and section notes and 
the GIRs).  Although the European Communities itself has maintained that such  an analysis of the 
objective characteristics is what is required, we fi nd that the measure does not provide for this.  
Rather, the CN2007 requires that all ADP MFMs wh ich do not have a facsimile function or make 
copies at a speed in excess of 12 monochrome pages per minute be classified in eight-digit tariff item 
number 8443 31 91 which provides for a  6 per cent ad valorem  duty.  As a result, certain ADP MFMs 
that are entitled to duty free treatment are subj ect to 6 per cent duty under the EC's measure. 
7.1502  The European Communities contends that this duty treatment is justified, because tariff item 
number 8443 31 91 is the successor to subheading 9 009 12 as it appears in the EC Schedule and that 
goods that were classifiable under subheading 900 9 12 are now classifiable in tariff item number 
8443 31 91 and should receive the same duty treatment , i.e. 6 per cent. Even assuming that products 
                                                      
1910 We recall that some ADP MFMs, pursuant to Note 5(D) to HS1996 Chapter 84 may be "printers" 
and thus classifiable under CN code 8471 60 40 and some other ADP MFMs could fall under CN code 8471 60 90 for "other".  In either case, as they would still be input  or output units as defined by the concession in 8471 
60 of the EC Schedule, they would nevertheless be entitled to duty-free treatment.  WT/DS375/R 
 WT/DS376/R 
 WT/DS377/R 
 Page 433 
  
  that were covered under subheading 9009 12 of  the EC Schedule are now covered under CN2007 
code 8443 31 91, that does not mean that CN code 8443 31 91 only covers products that were once in 
subheading 9009 12. This is demonstrated by th e plain difference in the language of the two 
concessions.  While subheading 9009 12 covered elect rostatic photocopying ap paratus which operate 
by reproducing the original image via an intermed iate onto the copy (indirect process), CN code 
8443 31 91 applies to machines which are capable of connecting to an ADP or a network that perform 
a copying function by scanning the original and printing the copies by means of an electrostatic print engine. Thus, even though, as expl ained in paragraph 7.1481, ADP MF Ms do not fall within the scope 
of subheading 9009 12 of the EC Schedule, they undis putedly fall within the meaning of the terms of 
CN2007 code 8443 31 91. Therefore, the issue before us with respect to the CN2007, and any subsequent versions, is not whet her the goods are properly classified , but whether the tariff treatment 
comports with the concessions set forth in the EC Schedule.  
7.1503  We have found that certain of the ADP MFMs at  issue, fall within the scope of subheading 
8471 60 of the EC Schedule.  The CN2007 requires a duty of 6 per cent ad valorem be charged on at 
least some products that properly fall within the scope of the duty-free concession for input or output 
units of an ADP in subheading 8471 60 of the EC  Schedule. Therefore, because the CN2007 requires 
that a duty in excess of that set forth in the EC Schedule be levied against certain ADP MFMs which 
fall within the scope of the duty-free concession in  subheading 8471 60 in the EC Schedule, the 
measure is inconsistent with Ar ticle II:1(b) of the GATT 1994. 
(e) Do the measures at issue provide less favourable  treatment than that set forth in the EC 
Schedule? 
7.1504  With respect to whether the European Comm unities' measures provide for less favourable 
treatment than that set forth in the EC Schedule, we recall the explanation of the Appellate Body, in 
Argentina – Textiles and Apparel , that paragraph 1(b) of Article II prohibits a specific kind of practice 
that will always be inconsistent with paragraph 1(a).
1911  In particular, the Appellate Body found that 
"the application of customs duties in excess of tho se provided for in a Member's Schedule inconsistent 
with the first sentence of Article II:1(b), constitut es  'less favourable' treatment under the provisions of 
Article II:1(a)."1912 Therefore, as prior panels have before us1913, we find that a violation of 
Article II:1(b) necessarily results in less favourab le treatment which is inconsistent with the 
obligations in Article II:1(a).   
7.1505  In light of the foregoing, given that we  have found that Commission Regulation No. 
517/1999, Commission Regulation No. 400/2006, the 2005 Statement, and the 2007CN are inconsistent with Article II:1(b) of the GATT 1994,  those measures also provide for less favourable 
treatment in a manner inconsistent with  Article II:1(a) of the GATT 1994.  
4. Whether the European Communities' tariff t reatment of Non-ADP MFMs is consistent 
with its obligations under Article II of the GATT 1994  
7.1506  We recall that the complainants have divided their claims with respect to multifunctional 
digital machines into two parts.  The first claim, discussed above, dealt with MFMs that could connect 
to an automatic data-processing machine and which the complainants argued fell within the duty-free 
concession in subheading 8471 60.  The second claim, which will be discussed in this section of the 
                                                     
 
1911 Appellate Body Report on Argentina – Textiles and Apparel , para. 45.   
1912 Appellate Body Report on Argentina – Textiles and Apparel, para. 47. 
1913 Panel Report on EC – Chicken Cuts , para. 7.65. WT/DS375/R 
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Page 434 
  
  Reports, deals with MFMs that have a facsimile func tion, but do not have the ability to connect to an 
automatic data-processing machine.   
(a) Are non-ADP MFMs covered by the concession in  Subheading 8517 21 of the EC Schedule? 
(i) Arguments of the parties 
7.1507  The complainants  refer to these products as non-ADP MFMs.  The complainants argue that 
these products fall within the European Commun ities' duty-free concession in the EC Schedule for 
"facsimile machines" in subheading 8517 21.
1914  The complainants argue that by not affording duty-
free treatment to products which are within th e scope of this tariff concession, the European 
Communities is acting inconsistently with its ob ligations under Article II of the GATT 1994, which 
requires that Members not treat products coming from another Member less favourably than in their 
schedules, nor charge duties in excess of the bound rates set forth in said Schedule.    
7.1508  The European Communities  argues that "since the non-ADP MFMs at issue in this section 
have both a copying function and a facsi mile transmission function, they are prima facie  classifiable 
under the concessions for bot h HS96 8517 21 and 9009 12."1915 According to the European 
Communities, given that MFMs at issue are prima facie  covered by the concessions for both HS1996 
8517 21 and 9009 12, and in the absence of any relevant HS1996 chapter or heading notes1916, it 
becomes necessary to resort to GIR 3. The Eu ropean Communities main tains that the essential 
character of these products cannot be determined pu rsuant to GIR 3(b), thus the MFMs must be 
classified in accordance with GIR 3(c) , i.e., in the subheading that occu rs later in the HS. In this case 
that would mean that non-ADP MFMs fall within the scope of the concession in subheading 9009 12 
of the EC Schedule and are subject to duty.1917 
7.1509  The complainants disagree with the European  Communities and renew their arguments noted 
at paragraphs 7.1473-7.1475 above that the c oncession in HS1996 subheading 9009 12 does not cover 
digital copying.1918   
                                                      
1914 We note that the European Communities' concession relating to "facsimile machines" is included in 
the EC Schedule with an eight-digit CN code, i.e. CN co de 8517 21 00.  However, in this dispute we will refer 
to this CN code and to subheading 8517 21 interchangea bly because we consider their scope to be identical 
based on the following three reasons:  (i) the use of "00" in the last two digits of that CN code;  (ii) the identical 
product descriptions that appear next to both the CN code and subheading;  and (iii) the absence, in this case, of 
CN-specific "break-outs" in the EC Schedule. 
1915 European Communities' first written submission, para. 449. 
1916 Although the European Communities is correct that  there are no relevant chapter or heading notes 
we do recall that Japan cited the HS Explanatory Note fo r heading 8517 which it argues confirms that facsimile 
machines are those that can connect to  a telephone line and have the ability bot h to send and to receive original 
documents by converting them into digital data and sending them over telephone lines. (Japan's first written 
submission, paras. 209-210 citing Vol. 4 Harmonized Commodity Description and Coding System, Explanatory 
Notes (2nd ed. 1996), p. 1475 (Exhibit JPN-23). 
1917 European Communities' first written submission, para. 451. 
1918 See, for example: United States' first written su bmission, paras. 71, 157, 159; United States' first 
oral statement, para. 37; United States' second written s ubmission, paras. 111-114; United States' second oral 
statement, para. 37; Japan's first wr itten submission, paras. 70-73, 107-122, 158-161 and 207; Japan's first oral 
statement, para. 37; Japan's second written submission, paras. 40-41; Chinese Taipei's first written submission, 
para. 574-584; Chinese Taipei's second written submission, paras. 299-300, 314, 319; complainants' responses to Panel question No. 29 (arguing that the WCO endorsed their view that digital c opiers are not photocopiers); 
Japan's responses to Panel questions Nos. 124; 131 and 136.  WT/DS375/R 
 WT/DS376/R 
 WT/DS377/R 
 Page 435 
  
  7.1510  The European Communities responds  that even if the complainants were right about non-
ADP MFMs falling outside the scope of HS1996 subheading 9009  12 as photocopiers, they would then have to be classified under HS1996 subheading 8472  90.  Therefore, according to the European 
Communities "non-ADP MFMs would fall prima facie  within both HS96 8517 21 and HS96 8472 90 
and their classification would have to be determin ed, on a case-by-case basis, pursuant to Note 3 to 
Section XVI of the HS96."
1919 
(ii) Consideration by the Panel 
7.1511  We take note of the fact that the European Communities agrees with the complainants that all 
non-ADP MFMs are prima facie classifiable in HS1996 subheading 8517 21.  Considering the 
agreement among all the parties on this point, the Panel does not see the need to do an extensive 
analysis of the ordinary meaning of the terms of this concession to determine whether the products are 
covered within its scope.  However, as with the claims regarding ADP MFMs, the European 
Communities has argued that a proper classification exercise will lead to the products falling under a 
different, dutiable concession, namely subheading 9 009 12 of the EC Schedule.  Alternatively, the 
European Communities argues that if they do not fall within subheading 9009 12 they would fall 
within a different dutiable concession, this time subheading 8472 90 of the EC Schedule. 
7.1512  Thus, the relevant issue with respect to th e complainants' claim that non-ADP MFMs are 
entitled to duty-free treatment is whether non-ADP MFMs  (or at least some of them) may be covered 
by subheadings other than HS1996 8517 21, that are dutiable.  We will begin our analysis by 
determining whether the products at issue also fall  within the scope of the tariff concessions in 
HS1996 subheadings 9009 12 and 8472 90. 
(b) Are there other applicable tariff headings? 
7.1513  The European Communities raises two possible alternative tariff headings related to 
subheading 9009 12 and subheading 8472 90.  In order to determine whether either is applicable we 
will have to examine the ordinary meaning of th e concession and whether the products at issue fall 
within the scope of that concession.  We will address each concession in turn. 
(i) Are non-ADP MFMs covered by the concession in  Subheading 9009 12 of the EC Schedule? 
Arguments of the parties  
7.1514  As noted above, the European Communities  contends that because the products at issue 
have a copying function they are prima facie classifiable within subheading 9009 12 of the EC 
Schedule and that a proper applicati on of the GIRs of the HS, in particular GIR 3(c), will result in all 
of the non-ADP MFMs at issue falling within the scope of that dutiable concession.1920 
7.1515  The complainants  disagree. They renew their argum ents, made with respect to the 
classification of ADP MFMs, that digital copying is not the type of photocopying covered by the concession in subheading 9009 12 of the EC Sc hedule and as such, non-ADP MFMs which make 
                                                     
 
1919 European Communities' second written submission, para. 135. 
1920 European Communities' first written submission, paras. 446-451; European Communities' response 
to Panel question No. 129; European Communities' comment to Japan's and Chinese Taipei's response to Panel 
question No. 129. WT/DS375/R 
WT/DS376/R WT/DS377/R 
Page 436 
  
  copies using digital technology combining the work of a scanner and a print engine, cannot fall within 
the concession in subheading 9009 12 of the EC Schedule.
1921 
Consideration by the Panel  
7.1516  We recall our finding in paragr aph 7.1468 above that the ordinary meaning of electrostatic 
photocopying apparatus operating by reproducing the original image via an intermediate onto the 
copy (indirect process) in subheading 9009 12 in the EC Schedule, is limited to the photocopying 
process used by "analogue photocopiers" and does not include within its scope digital copying 
technology. 
7.1517  We also note that the non-ADP MFMs utilize the same digital copying process as ADP 
MFMs, which was described in pa ragraph 7.1470 above.  Given that  the copying process utilized by 
non-ADP MFMs is not the type of photocopying process covered by the concession in subheading 
9009 12 of the EC Schedule, then we find that non-ADP MFMs cannot fall within the scope of the 
concession in subheading 9009 12 of the EC Schedule. 
(ii) Are Non-ADP MFMs covered by the concession under subheading 8472 90 of the EC 
Schedule? 
Arguments of the parties  
7.1518  The European Communities  argues that if digital copiers are not photocopiers under 
subheading 9009 12, then digital copiers would have to be classified under subheading 8472 90.1922  
Following this logic, the European Communities argues that "non-ADP MFMs would fall prima facie  
within both HS96 8517 21 and HS96 8472 90 and their classification would have to be determined, on 
a case-by-case basis, pursuant to Note 3 to Section XVI of the HS96."1923 
7.1519  The United States  seems to agree with the European Communities on this point, when it 
states that non-ADP MFMs whose "essential character" is that of a facsimile machine are included in 
the concession for "facsimile machines" under subh eading 8517 21, while other non-ADP MFMs may 
not be "facsimile machines" and therefore would fa ll within the concession for goods of subheading 
8472  90.1924 
                                                      
1921 See, for example: United States' first written su bmission, paras. 71, 157, 159; United States' first 
oral statement, para. 37; United States' second written s ubmission, paras. 111-114; United States' second oral 
statement, para. 37; Japan's first wr itten submission, paras. 70-73, 107-122, 158-161 and 207; Japan's first oral 
statement, para. 37; Japan's second written submission, paras. 40-41; Chinese Taipei's first written submission, 
para. 574-584; Chinese Taipei's second written submission, paras. 299-300, 314, 319; complainants' responses to Panel question No. 29 (arguing that the WCO endorsed their view that digital c opiers are not photocopiers); 
Japan's responses to Panel questions Nos. 124; 131 and 136. 
1922 European Communities' second written submission, para. 135 citing the Complainants' responses to 
Panel question No. 44. 
1923 European Communities' second written submission, para. 135. 
1924 United States' response to Panel question No. 137.  We understand the United States' reference to 
the "essential character" of the non-AD P MFMs to be a reference to GIR 3( b).  Assuming that the United States 
was correct that some non-ADP MFMs could be prima facie classifiable in both HS1996 subheadings 8472 90 
and 8517 21, under HS rules, to the extent that the e ssential character of a partic ular non-ADP MFM could not 
be determined pursuant to GIR 3(b), GIR 3(c) would suggest that the appropriate classification would be the 
duty free subheading 8517 21 as the la test subheading in the Schedule.  WT/DS375/R 
 WT/DS376/R 
 WT/DS377/R 
 Page 437 
  
  7.1520  Japan  and Chinese Taipei  maintain that all non-ADP MFMs are included in the concession 
on HS1996 subheading 8517 21.  Japan argues that the scanner module and printer module are what enable the device to transmit and receive facsimi les and that these modules are essential to the 
facsimile capabilities of the device.
1925  
7.1521  Finally, both Japan and the United States reite rate that even if some non-ADP MFMs were 
properly classifiable in subheading 8472 90 the duty treatment under the current EC measures would still exceed that provided for in that concession.
1926  
Consideration by the Panel  
7.1522  The Panel recalls its determination in paragraph 7.1487 above that given the lack of evidence 
and argumentation on the scope of HS1996 subheading 8472 90 and that any claim of inconsistency 
with Article II:1(b) because of tariff treatment in ex cess of that provided for in 8472 90 is outside our 
mandate that we would not make any findings with  respect to whether ADP MFMs fall within the 
scope of that concession.  Given that the arguments on non-ADP MFMs mirrored and were 
sometimes even less than those presented on ADP MFMs, we see no reason to proceed with findings 
on whether non-ADP MFMs fall within the scope of th e concession in HS1996 subheading 8472 90.       
(c) Do the measures at issue result in the imposition of duties on the products at issue in excess of 
those provided for in the EC Schedule? 
7.1523  We recall our reasoning in Section VII.D.4 (parag raphs 7.97-7.102) above that Article II:1(b) 
of the GATT 1994 requires that Members not appl y ordinary customs duties in excess of those 
provided for in their Schedule.  Therefore, in this section we will compare the tariff treatment 
provided to non-ADP MFMs under the challenged measu res with that provided for in subheading 
8517 21 of the EC Schedule to determine whether the challenged measures provide for duties being 
applied to non-ADP MFMs in excess of those set fo rth in the EC Schedule, such that the European 
Communities is in breach of its obligati ons under Article II:1(b) of the GATT 1994.1927 
(i) Commission Regulation No. 517/1999  
7.1524  We note our conclusion in paragraph 7. 1491 above, that Commission Regulation 
No. 517/1999 requires that a MFM meeting the descri ption set forth in item 2 of the Annex, which 
could include a non-ADP MFM with a facsimile f unction, must be classified under CN code 
9009 12 00, which sets a duty rate of 6 per cent. 
7.1525  We also recall our conclusion that the products  at issue do not fall within the scope of 
products defined in tariff item number 9009 12 00 of th e EC Schedule, but that at least some of them 
fall within the scope of subheading 8517 21 of th e EC schedule, which is a duty-free concession.  
Therefore, as Commission Regulation No. 517/1999   requires the imposition of a 6 per cent duty on 
products that the European Communities is obliged to  provide duty-free treatment for, the measure is 
inconsistent with the European Communities' oblig ations under Article II:1(b) of the GATT 1994.   
                                                      
1925 Japan and Chinese Taipei's responses to Panel question No. 137. 
1926 Japan and the United States' responses to Panel question No. 137. 
1927 As noted in paragraph 7.102, becau se of the relationship between the obligations in Articles II:1(a) 
and (b), we will begin our analysis of whether the tariff treatment provided for in the European Communities' 
measures is consistent with Article II of the GATT 1994 with an analysis of the obligation in Article II:1(b).  
Subsequently, we will move on to address the complainants' claim that the European Communities is also acting 
inconsistently with the obligation in Article II:1(a). WT/DS375/R 
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Page 438 
  
  (ii) The 2005 Statement 
7.1526  We recall our conclusion in para graph 7.1493 above that if a na tional customs authority were 
to follow the non-binding guidance in the 2005 Statement, then it would proceed to classify MFMs 
(including non-ADP MFMs with a facsimile functio n) which can photocopy in  black and white 12 or 
more pages per minute as a photocopier under CN code  9009 12 00 which sets a 6 per cent duty rate.  
7.1527  We also recall our conclusion that at least some of the products at issue fall within the scope 
of subheading 8517 21 of the EC Schedule, which is  a duty-free concession, and that none of the 
products at issue fall within the scope tariff item number 9009 12 00 of the EC Schedule.  Therefore, 
because the 2005 Statement guides the European Communities, through its national customs 
authorities, to uniformly apply a duty of 6 per cent on products that the European Communities is obliged to provide duty-free treatment for, the measure is inconsistent with the European 
Communities' obligations under Ar ticle II:1(b) of the GATT 1994.  
(iii) Commission Regulation No. 400/2006  
7.1528  We recall that the complainants have specifically  raised item 4 of the Annex to the Regulation 
as the part of Commission Regulation No. 400/ 2006 which causes the European Communities to 
charge duties on non-ADP MFMs which should be covered by the duty-free concession in subheading 
8517 21 of the EC Schedule for "facsimile machin es".  Item 4 of the Annex to the Regulation 
describes a  
"[M]ultifunctional apparatus capable of  performing the following functions: 
scanning, laser printing, laser copying (indi rect process).  The apparatus, which has 
several paper feed trays, is capable of reproducing up to 40 A4 pages per minute.  The apparatus operates either autonomously (as a copier) or in conjunction with an 
automatic data-processing machine or in a network (as a printer, a scanner and a copier)."
1928   
7.1529  The regulation goes on to say that such an apparatus shall be classified under CN code 
9009 12 00, which sets a duty rate of 6 per cent. 
7.1530  We note that the description does not mention the apparatus having a facsimile function.  
Therefore, we do not see how Commission Regul ation No. 400/2006 would necessarily require 
national customs authorities within the European  Communities to classify non-ADP MFMs with a 
facsimile function in CN code 9009 12 00.  We note that the complainants have provided no specific 
argumentation as to how application of Commission Regulation No. 400/2006 results in duties being 
applied to non-ADP MFMs with a facsimile function.  Therefore, with respect to the claim regarding 
the tariff treatment of non-ADP MFMs with a facsimile  function, we find that the complainants have 
not established that, by virtue of this regulation, the European Communities is levying duties on non-ADP MFMs with a facsimile function in excess of those provided for in its Schedule.    
(iv) CN2007 codes 8443 31 10, 8443 31 91, and 8443 31 99 
7.1531  Unlike Commission Regulation Nos. 517/1999 and 400/2006 and the 2005 Statement, the 
CN2007 does not subject non-ADP MFMs to a 6 per cent duty via classification under HS1996 subheading 9009 12.   
                                                     
 
1928 Commission Regulation No. 400/2006 (Exhibit JPN-5).  WT/DS375/R 
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  7.1532  The CN2007, as well as the subsequent versions  of the CN to date, is based on HS2007, 
which made a variety of changes in headings covering the very products at issue in this dispute.  In 
fact, we observed that the HS2007 completely removed HS1996 subheading 9009 12.  Moreover, 
several products that used to be classifi able under different HS1996 subheadings, including inter alia  
some facsimile machines that used to be classifi able under HS1996 subheadi ng 8517 21, were merged 
under a new HS2007 heading 8443.  The European Comm unities contends that this was also the case 
for photocopiers covered under HS1996 subheading 9009 12, however this interpretation was not 
accepted by all the contracting parties to the HS.
1929  This new heading includes a subheading 8443 31 
for "[m]achines which perform two or more of th e functions of printing,  copying or facsimile 
transmission, capable of connecting to an auto matic data-processing machine or to a network".1930  
7.1533  In implementing HS2007, the European Communitie s created its own eight-digit CN codes as 
subcategories of the subheading.  Subh eading 8443 31 was subdivided as follows: 
CN2007 
code Description Conventional 
rate of duty 
(%) 
8443 Printing machinery used for printing by means of plates, cylinders and 
other printing componen ts of heading 8442; other printers, copying 
machines and facsimile machines, wh ether or not combined; parts and 
accessories thereof:  
 (...)  
 - Other printers, copying machines and facsimile machines, whether or not 
combined  
8443 31 - - Machines which perform two or more of the functions of printing, copying 
or facsimile transmission, capable of connecting to an automatic data-
processing machine or to a network:  
8443 31 10 - - - Machines performing the functions of copying and facsimile 
transmission, whether or not with a pr inting function, with a copying speed 
not exceeding 12 monochrome pages per minute Free 
 - - - Other  
8443 31 91 - - - - Machines performing a copying function by scanning the original and 
printing the copies by means of an electrostatic print engine  6 per cent 
8443 31 99 - - - - Other   Free 
 
7.1534  We observe that one of these CN2007 cod es 8443 31 91 provides for a 6 per cent ad valorem  
duty for products classifiable therein.  Speci fically, pursuant to CN2007 code 8443 31 91 the 
European Communities would apply a 6 per cent dut y to "[m]achines performing a copying function 
by scanning the original and printing the copies by m eans of an electrostatic print engine."  All the 
remaining products classifiable under 8443 31 are provide d duty-free treatment and are, therefore, not 
relevant for our analysis.  We recall our conclusion in paragraph 7.1500 above, that the existence of 
these two eight-digit CN codes under the same s ubheading, means that non-ADP MFMs which copy 
at a speed exceeding  12 monochrome pages per minute are subject to the 6 per cent duty under 
8443 31 91, while those that copy at rates of 12 monochrome pages per minute or slower are exempt 
from duties. 
                                                      
1929 WCO response to Panel questions, pp. 6-12.   
1930 We note that all the parties confirmed that the term "network" in HS2007 subheading 8443 31 
includes connections via a telephone line and thus non-ADP MFMs with a facsimile function would be covered 
by this subheading.  See Parties' responses to Panel question No. 25. WT/DS375/R 
WT/DS376/R WT/DS377/R 
Page 440 
  
  7.1535  The Panel reiterates that our task is to de termine whether the products at issue receive 
treatment that is less favourable than or in exces s of the duties provided for in the concession in the 
EC Schedule.      
7.1536  We recall that the parties all agree that all non-ADP MFMs could fall, at least prima facie 
within the scope of the duty-free concession in the EC Schedule in subheading 8517 21.
1931 We also 
stated that due to lack of evidence and argumenta tion we did not have a basis for making a finding as 
to whether some non-ADP MFMs might also fall within the scope of the dutiable concession in 
8472 90.  As noted above, by virtue of the effect  of the relevant HS rules which provide important 
context in interpreting the scope of these concessi ons, it appears to the Panel that at least some non-
ADP MFMs will fall within the scope of the conces sion in subheading 8517 21 of the EC Schedule.  
Although the European Communities itself notes that the Appellate Body has confirmed that tariff 
treatment of a particular product must be determined according to its objective characteristics at the time of its importation
1932, we find that the  measure does not provide for this.  Rather, the CN2007 
requires that all non-ADP MFMs which make copi es at a speed in excess of 12 monochrome pages 
per minute be classified in eight-digit CN code 8443 31 91 which provides for a 6 per cent ad valorem  
duty.  As a result, certain non-ADP MFMs that are entitled to duty free treatment are subject to 6 per 
cent duty under the EC's measure. 
7.1537  The European Communities contends that this duty treatment is justified, because tariff item 
number 8443 31 91 is the successor to subheading 9 009 12 as it appears in the EC Schedule and that 
goods that were classifiable under subheading 900 9 12 are now classifiable in tariff item number 
8443 31 91 and should receive the same duty treatment , i.e., 6 per cent. Even assuming that products 
that were covered under subheading 9009 12 of  the EC Schedule are now covered under CN2007 
code 8443 31 91, that does not mean that tariff item number 8443 31 91 only covers products that 
were once in subheading 9009 12. This is demonstrated  by the plain difference in the language of the 
two concessions. While subheading 9009 12 covere d electrostatic photocopying apparatus which 
operate by reproducing the original image via an in termediate onto the copy (indirect process), tariff 
item number 8443 31 91 applies to machines which are capable of connecting to an ADP or a network 
that perform a copying function by scanning the original and printing the copies by means of an electrostatic print engine. Thus, even though, as explained in paragraph 7.1517, non-ADP MFMs do 
not fall within the scope of subheading 9009 12 of th e EC Schedule, they undisputedly fall within the 
meaning of the terms of CN2007 code 8443 31 91. Theref ore, the issue before us with respect to the 
CN2007, and any subsequent versions, is not whet her the goods are properly classified, but whether 
the tariff treatment comports with the concessions set forth in the EC Schedule.  
7.1538  We have found that certain of the non-ADP MF Ms at issue, fall w ithin the scope of 
subheading 8517 21 of the EC Schedule.  The CN2007 requires a duty of 6 per cent ad valorem be 
charged on at least some products that properly fa ll within the scope of the duty-free concession for 
facsimile machines in subheading 8517 21 of th e EC Schedule.  Therefore, because the CN2007 
requires that a duty in excess of that set forth in  the EC Schedule be levied against certain non-ADP 
MFMs which fall within the scope of the duty-free concession in subheading 8517 20 of the EC Schedule, the measure is inconsistent with Article II:1(b) of the GATT 1994. 
                                                     
 
1931 United States' first written submission, paras. 103-104; United States' first oral statement, para. 36; 
Japan's first written submission, para. 193; Chinese Ta ipei's first written submission, para. 566, European 
Communities' first written submission, para. 449. 
1932 European Communities' first written submission, para. 447.  WT/DS375/R 
 WT/DS376/R 
 WT/DS377/R 
 Page 441 
  
  (d) Do the measures at issue provide less favourable  treatment than that set forth in the EC 
Schedule? 
7.1539  With respect to whether the European Comm unities' measures provide for less favourable 
treatment than that set forth in the EC Schedule, we recall the explanation of the Appellate Body, in 
Argentina – Textiles and Apparel , that paragraph (b) of Article II prohibits a specific kind of practice 
that will always be inconsistent with paragraph (a).
1933 In particular, the Appellate Body found that 
"the application of customs duties in excess of tho se provided for in a Member's Schedule inconsistent 
with the first sentence of Article II:1(b), constitut es 'less favourable' treatment under the provisions of 
Article II:1(a)."1934 Therefore, as prior panels have before us1935, we find that a violation of 
Article II:1(b) necessarily results in less favourab le treatment which is inconsistent with the 
obligations in Article II:1(a).   
7.1540  In light of the foregoing and given that  we have found that Commission Regulation 
No. 517/1999 , the 2005 Statement, and the CN2007 r esult in tariff treatment of non-ADP MFMs that 
is inconsistent with Article II:1(b) of the GATT 1994, those measures also provide for less favourable 
treatment in a manner inconsistent with  Article II:1(a) of the GATT 1994.  
VIII.  RULINGS AND RECOMMENDATIONS 
8.1 The Panel recalls the complainants' request that the Panel issue its findings in the form of a 
single document containing three separate reports with common sections on the Panel's conclusions 
and recommendations for each complaining party.1936 In accordance with the requests by the 
complaining parties, we therefore provide three separate sets of conclusions and recommendations. 
8.2 We recall that the complainants have br ought claims not only against the European 
Communities, but also its member States.  We note that it is the member States' national customs authorities that implement the customs measures enac ted by the European Communities.  We also are 
mindful of the fact that EC member states are WTO Members in their own right and that, like all 
WTO Members, they are bound to act consistently w ith their WTO obligations.  Thus, if one or more 
EC member States were found to have applied WTO inconsistent measures, be they enacted by the 
States themselves or by the European Communities, it could be appropriate to find that the member 
States have acted inconsistently with their WTO oblig ations.  However, we note that the complainants 
have framed their claims as challenging the Eur opean Communities measures "as such" and have 
confirmed to the Panel that they are not making clai ms with respect to specific applications of those 
measures by national customs authorities of any member States. Under the circumstances, the Panel 
considers that it is not required to make, and does not make, findings with respect to member States' 
application of the European Communities' measures th at were challenged "as such" in this dispute.  
                                                     
 
1933 Appellate Body Report on Argentina – Textiles and Apparel , para. 45.   
1934 Appellate Body Report on Argentina – Textiles and Apparel, para. 47. 
1935 Panel Report on EC – Chicken Cuts , para. 7.65. 
1936 See para.2.4 and its fn. 17. WT/DS375/R 
WT/DS376/R WT/DS377/R 
Page 442 
  
  Moreover, we are of the view that findings with respect to the measures adopted by the European 
Communities will provide a positive solution to the dispute.
1937 
 
                                                      
1937 We recall that the European Communities assured the Panel that to the extent the Panel were to find 
that any of the measures specified  in the joint panel request breach WTO obligations, the European 
Communities stated it will bear full responsibility for such breach of its Schedule.  See Letter from the Delegation of the Commission (4 February 2009).    WT/DS375/R 
 Page 443 
 
 
  A. COMPLAINT BY THE UNITED STATES (DS375):   CONCLUSIONS OF THE PANEL  
1. FPDs 
8.3 The United States has made claims with resp ect to Council Regulation 2658/87, as amended, 
CNEN 2008/C 133/01, Commission Regulation Nos. 634/2005 and 2171/2005.  The Panel analyzed 
how these measures worked in conjunction with and in the absence of the duty suspension under 
Council Regulation No. 179/2009.  
8.4 With respect to the CNEN 2008/C 133/01, which operates in conjunction with the CN, the 
Panel finds that:  
(a) In the absence of the duty suspension under Council Regulation No. 179/2009, the 
measures direct national customs authorities to classify some flat panel display 
devices that are capable of receiving and reproducing video images both from an 
automatic data-processing machine and from a source other than an automatic data-
processing machine, that fall within th e scope of the FPDs narrative description 
and/or within the scope of the CN code 8471 60 90, under dutiable headings.  Because the concessions call for duty-free treat ment of products falling within their 
scope, this dutiable treatment is inconsistent  with Article II:1(b) of the GATT 1994.   
(b) In the absence of the duty suspension under Council Regulation No. 179/2009, the 
measures direct national customs authorities to classify some flat panel display devices that have a DVI interface, whether or not they are capable of receiving signals from another source, that fall within the scope of the FPDs narrative description and/or within the scope of  the CN code 8471 60 90, under dutiable 
headings.  Because the concessions call fo r duty-free treatment of products falling 
within their scope, this dutiable treatment is  inconsistent with Article II:1(b) of the 
GATT 1994.   
(c) Given the duty suspension currently in effect for certain products in dispute falling 
within the scope of the FPDs narrative descr iption or within the scope of CN code 
8471 60 90, the inconsistency w ith Article II:1(b) referred to  in subparagraphs (a) and 
(b) above is eliminated because the duties are suspended and hence are not in excess 
of those provided for in the EC Schedule. 
(d) For those products in dispute falling within the scope of the FPDs narrative 
description or within the scope of CN c ode 8471 60 90 and that are not covered by 
the duty suspension with the result that they  are subject to dutiable treatment, the duty 
suspension does not eliminate the inconsiste ncy with Article II:1(b) for these products 
and therefore this dutiable treatment is inc onsistent with Article II:1(b) of the GATT 
1994. 
(e) The European Communities fails to accord treatment no less favourable than that set 
forth in its Schedule to the commerce of the other WTO Members, in particular 
certain flat panel display devices that ar e capable of receiving and reproducing video 
images both from an automatic data-processing machine and from a source other than an automatic data-processing machine, or th at have a DVI interface, whether or not 
they are capable of receiving signals from another source.  Thus, the European Communities is inconsistent with Artic le II:1(a) of the GATT 1994.  This 
inconsistency is not eliminated by the duty suspension with respect to certain 
products in dispute falling within the sc ope of the FPDs narrative description or 
within the scope of CN code 8471 60 90 because the duty suspension measure does WT/DS375/R 
Page 444  
 
  not eliminate the failure to accord treatme nt no less favourable to the commerce of 
the other WTO Members. 
8.5 With respect to item 4 in the Annex to Commission Regulation No. 634/2005 and items 2, 3 
and 4 in the Annex to Commission Regulation No. 2171/2005:  
(a) In the absence of the duty suspension under Council Regulation No. 179/2009, the 
measures direct national customs authorities to classify some flat panel display 
devices that are capable of receiving and reproducing video images both from an automatic data-processing machine and from a source other than an automatic data-
processing machine, that fall within th e scope of the FPDs narrative description 
and/or within the scope of the CN code 8471 60 90, under dutiable headings.  
Because the concessions call for duty-free treat ment of products falling within their 
scope, this dutiable treatment is inconsistent  with Article II:1(b) of the GATT 1994.   
(b) In the absence of the duty suspension under Council Regulation No. 179/2009, the 
measures direct national customs authorities to classify some flat panel display devices that have a DVI interface, whether or not they are capable of receiving 
signals from another source, that fall within the scope of the FPDs narrative 
description and/or within the scope of  the CN code 8471 60 90, under dutiable 
headings. Because the concessions call for duty-free treatment of products falling within their scope, this dutiable treatment is  inconsistent with Article II:1(b) of the 
GATT 1994.   
(c) Given the duty suspension currently in effect for certain products in dispute falling 
within the scope of the FPDs narrative descr iption or within the scope of CN code 
8471 60 90, the inconsistency w ith Article II:1(b) referred to  in subparagraphs (a) and 
(b) above is eliminated because the duties are suspended and hence are not in excess 
of those provided for in the EC Schedule. 
(d) For those products in dispute falling within the scope of the FPDs narrative 
description or within the scope of CN c ode 8471 60 90 and that are not covered by 
the duty suspension with the result that they  are subject to dutiable treatment, the duty 
suspension does not eliminate the inconsiste ncy with Article II:1(b) for these products 
and therefore this dutiable treatment is in consistent with Article II:1(b) of the 
GATT 1994. 
(e) The European Communities fails to accord treatment no less favourable than that set 
forth in its Schedule to the commerce of the other WTO Members, in particular 
certain flat panel display devices that ar e capable of receiving and reproducing video 
images both from an automatic data-processing machine and from a source other than an automatic data-processing machine, or th at have a DVI interface, whether or not 
they are capable of receiving signals from another source.  Thus, the European 
Communities is inconsistent with Artic le II:1(a) of the GATT 1994.  This 
inconsistency is not eliminated by the duty suspension with respect to certain products in dispute falling within the sc ope of the FPDs narrative description or 
within the scope of CN code 8471 60 90 because the duty suspension measure does not eliminate the failure to accord treatme nt no less favourable to the commerce of 
the other WTO Members.  WT/DS375/R 
 Page 445 
 
 
  2. STBCs 
8.6 With respect to the CNEN 2008/C 112/03 whic h operates in conjunction with the CN, the 
Panel finds that: 
(a) The measures direct national customs authorities to classify under dutiable headings 
some set top boxes which incorporate a device performing a recording or reproducing 
function and retain the essential character of a set top box and that fall within the 
scope of the STBCs narrative description in the Annex to the EC Schedule.  Because the concession calls for duty-free treatment of products falling within its scope, this dutiable treatment is inconsistent with  Article II:1(b) of the GATT 1994.   
(b) The measures direct national customs authorities to classify under dutiable headings 
some set top boxes which utilise ISDN, WLAN or Ethernet technology, and that fall 
within the scope of the STBCs narrative descr iption in the Annex to the EC Schedule.  
Because the concession calls for duty-free tr eatment of products falling within its 
scope, this dutiable treatment is inconsiste nt with Article II:1(b) of the GATT 1994. 
(c) By virtue of the inconsistency with Arti cle II:1(b) of the GATT 1994, the measures 
accord treatment less favourable to such  set top boxes than that provided for under 
the STBCs narrative description in the A nnex to the EC Schedule and thus the 
measures are also inconsistent with  Article II:1(a) of the GATT 1994. 
(d) The United States has failed to meet its burden to establish a prima facie  case that the 
products at issue fall within the scope of concessions arising under CN codes 
8517 50 90, 8517 80 90, 8525 20 99 and/or 8528 12 91 of the EC Schedule.  
Therefore, the United States has failed to establish that the measures are inconsistent 
with Articles II:1(a) and II:1(b) of th e GATT 1994 because the concessions require 
duty-free treatment for the products falling within their scope. 
8.7 With respect to claims regarding the consistency of the CNEN 2008/C 112/03 with Article X, 
the Panel finds that: 
(a) The European Communities failed to publish promptly CNEN 2008/C 112/03, such 
as to enable governments and traders to b ecome acquainted with them, and has thus 
acted inconsistently with Article X:1 of the GATT 1994.   
(b) The European Communities has not acted inconsistently with Article X:2 of the 
GATT 1994 with respect to the Octobe r 2006 CNEN amendment because the 
complainants did not establish that the Eu ropean Communities enforced the October 
2006 CNEN amendment before its official publication as CNEN 2008/C 112/03 in 
the EU Official Journal on 7 May 2008. 
(c) The European Communities has acted incons istently with Article X:2 of the GATT 
1994 with respect to the April 2007 CNEN amendment by enforcing the April 2007 CNEN amendment before its official publication as CNEN 2008/C 112/03 in the EU 
Official Journal on 7 May 2008. 
3. MFMs 
8.8 With respect to item 1of the Annex to Commission Regulation No. 517/1999, the Panel finds 
that: WT/DS375/R 
Page 446  
 
  (a) The regulation requires dutiable treatment of  certain ADP MFMs that fall within the 
scope of the concession for "input or ou tput units" in HS1996 subheading 8471 60 of 
the EC Schedule.  Because the concession calls for duty-free treatment of products 
falling within its scope, this dutiable treatmen t is inconsistent with Article II:1(b) of 
the GATT 1994.   
(b) By virtue of the inconsistency with Arti cle II:1(b) of the GATT 1994, the measures 
accord treatment less favourable to certa in ADP MFMs than that provided for under 
the EC Schedule and thus the measures are al so inconsistent with Article II:1(a) of 
the GATT 1994. 
(c) The regulation requires dutiable treatment of certain non-ADP MFMs that fall within 
the scope of the concession for "facsimile machines" in HS1996 subheading 8517 21 
of the EC Schedule.  Because the concessi on calls for duty-free treatment of products 
falling within its scope, this dutiable treatmen t is inconsistent with Article II:1(b) of 
the GATT 1994.   
(d) By virtue of the inconsistency with Arti cle II:1(b) of the GATT 1994, the measures 
accord treatment less favourable to certain non-ADP MFMs than that provided for 
under the EC Schedule and thus the measures ar e also inconsistent with Article II:1(a) 
of the GATT 1994. 
8.9 With respect to the 2005 Statement, the Panel finds that: 
(a) Because the measure has guided and serves to guide the European Communities 
uniform application of the common custom s tariff in a way that results in the 
application of duties to those ADP MFMs that fall within the duty-free concession, 
the measure is inconsistent with  Article II:1(b) of the GATT 1994. 
(b) By virtue of the inconsistency with Arti cle II:1(b) of the GATT 1994, the measures 
accord treatment less favourable to certa in ADP MFMs than that provided for under 
the EC Schedule and thus the measures are al so inconsistent with Article II:1(a) of 
the GATT 1994. 
(c) Because the measure has guided and serves to guide the European Communities 
uniform application of the common custom s tariff in a way that results in the 
application of duties to those non-ADP MFMs that fall within the duty-free 
concession, the measure is inconsistent with Article II:1(b) of the GATT 1994. 
(d) By virtue of the inconsistency with Arti cle II:1(b) of the GATT 1994, the measures 
accord treatment less favourable to certain non-ADP MFMs than that provided for 
under the EC Schedule and thus the measures ar e also inconsistent with Article II:1(a) 
of the GATT 1994. 
8.10 With respect to item 4 of the Annex to Commission Regulation No. 400/2006, the Panel finds 
that: 
(a) The regulation requires dutiable treatment of  certain ADP MFMs that fall within the 
scope of the concession for "input or ou tput units" in HS1996 subheading 8471 60 of 
the EC Schedule.  Because the concession calls for duty-free treatment of products 
falling within its scope, this dutiable treatmen t is inconsistent with Article II:1(b) of 
the GATT 1994.    WT/DS375/R 
 Page 447 
 
 
  (b) By virtue of the inconsistency with Artic le II:1(b) of the GATT 1994, the regulation 
accords treatment less favourable to certa in ADP MFMs than that provided for under 
the EC Schedule and thus the measures are al so inconsistent with Article II:1(a) of 
the GATT 1994. 
(c) The regulation does not require the dutiable treatment of non-ADP MFMs with a 
facsimile function.  Therefore, th e European Communities has not acted 
inconsistently with Article  II:1(b) of the GATT 1994 with respect to non-ADP MFMs 
with a facsimile function as the measure does not impose duties in excess of those 
provided for in the EC Schedule.   
8.11 With respect to the CN2007, the Panel finds that: 
(a) The three relevant CN2007 codes require th at certain ADP MFMs which fall within 
the scope of the duty-free concession for input or output units of an ADP in 
subheading 8471 60 of the EC Schedule be charged a duty of 6 per cent. Therefore, with respect to these products, the measure is inconsistent with Article II:1(b) of the 
GATT 1994. 
(b) By virtue of the inconsistency with Article II:1(b) of the GATT 1994, the CN2007 
accords treatment less favourable to certa in ADP MFMs than that provided for under 
the EC Schedule and thus the measures are al so inconsistent with Article II:1(a) of 
the GATT 1994. 
(c) The three relevant CN2007 codes require that certain non-ADP MFMs which fall 
within the scope of the duty-free concession for "facsimile machines" in subheading 
8517 21 of the EC Schedule be charged a duty of 6 per cent. Therefore, with respect 
to these products, the measure is inconsiste nt with Article II:1(b) of the GATT 1994. 
(d) By virtue of the inconsistency with Article II:1(b) of the GATT 1994, the CN2007 
accords treatment less favourable to certain non-ADP MFMs than that provided for under the EC Schedule and thus the measures ar e also inconsistent with Article II:1(a) 
of the GATT 1994. 
4.  Nullification and impairment 
8.12 Under Article 3.8 of the DSU, in cases where there is infringement of the obligations assumed 
under a covered agreement, the action is considered prima facie to cons titute a case of nullification or 
impairment of benefits under that agreement.  Acco rdingly, we conclude that to the extent that the 
European Communities has acted in consistently with Articles II:1( a), II:1(b), X:1 and X:2 of the 
GATT 1994, it has nullified or impaired benefits accruing to the United States under that agreement.  
5. Recommendations 
8.13 Pursuant to Article 19.1 of the DSU, having found that the European Communities has acted 
inconsistently with Articles II:1(a), II:1(b), X:1,  and X:2 of the GATT 1994, we recommend that the 
Dispute Settlement Body request the European Co mmunities to bring the relevant measures into 
conformity with its obligations under the GATT 1994. WT/DS375/R 
Page 448  
 
  8.14 We recall that the European Communities has indicated that the Commission Regulation Nos. 
634/2005 and 2171/2005 would be repealed.
1938  In addition, the Europ ean Communities has indicated 
that Commission Regulation Nos. 517/1999  and 400/2006 would be repealed as of October 2009.1939  
However, there is no evidence properly before the Pane l confirming such repeal.  Therefore, the Panel 
has proceeded on the basis that th e said measures are in force.   
                                                      
1938 European Communities' first written submission, para. 95; European Communities' second written 
submission, para. 63. 
1939 European Communities' response to Panel question No. 110.  WT/DS376/R 
 Page 449 
 
 
  B. COMPLAINT BY THE JAPAN (DS376):   CONCLUSIONS OF THE PANEL  
1. FPDs 
8.15 Japan has made claims with  respect to Council Regulation 2658/87, as amended, CNEN 
2008/C 133/01, Commission Regulation Nos. 634/2005 and 2171/2005.  The Panel analyzed how these measures worked in conjunction with and in the absence of the duty suspension under Council 
Regulation No. 179/2009.  
8.16 With respect to the CNEN 2008/C 133/01, which operates in conjunction with the CN, the 
Panel finds that:  
(a) In the absence of the duty suspension under Council Regulation No. 179/2009, the 
measures direct national customs authorities to classify some flat panel display 
devices that are capable of receiving and reproducing video images both from an 
automatic data-processing machine and from a source other than an automatic data-
processing machine, that fall within th e scope of the FPDs narrative description 
and/or within the scope of the CN code 8471 60 90, under dutiable headings.  Because the concessions call for duty-free treat ment of products falling within their 
scope, this dutiable treatment is inconsistent  with Article II:1(b) of the GATT 1994.   
(b) In the absence of the duty suspension under Council Regulation No. 179/2009, the 
measures direct national customs authorities to classify some flat panel display devices that have a DVI interface, whether or not they are capable of receiving signals from another source, that fall within the scope of the FPDs narrative description and/or within the scope of  the CN code 8471 60 90, under dutiable 
headings.  Because the concessions call fo r duty-free treatment of products falling 
within their scope, this dutiable treatment is  inconsistent with Article II:1(b) of the 
GATT 1994.   
(c) Given the duty suspension currently in effect for certain products in dispute falling 
within the scope of the FPDs narrative descr iption or within the scope of CN code 
8471 60 90, the inconsistency w ith Article II:1(b) referred to  in subparagraphs (a) and 
(b) above is eliminated because the duties are suspended and hence are not in excess 
of those provided for in the EC Schedule. 
(d) For those products in dispute falling within the scope of the FPDs narrative 
description or within the scope of CN c ode 8471 60 90 and that are not covered by 
the duty suspension with the result that they  are subject to dutiable treatment, the duty 
suspension does not eliminate the inconsiste ncy with Article II:1(b) for these products 
and therefore this dutiable treatment is inc onsistent with Article II:1(b) of the GATT 
1994. 
(e) The European Communities fails to accord treatment no less favourable than that set 
forth in its Schedule to the commerce of the other WTO Members, in particular 
certain flat panel display devices that ar e capable of receiving and reproducing video 
images both from an automatic data-processing machine and from a source other than an automatic data-processing machine, or th at have a DVI interface, whether or not 
they are capable of receiving signals from another source.  Thus, the European Communities is inconsistent with Artic le II:1(a) of the GATT 1994.  This 
inconsistency is not eliminated by the duty suspension with respect to certain 
products in dispute falling within the sc ope of the FPDs narrative description or 
within the scope of CN code 8471 60 90 because the duty suspension measure does WT/DS376/R 
Page 450  
 
  not eliminate the failure to accord treatme nt no less favourable to the commerce of 
the other WTO Members. 
8.17 With respect to item 4 in the Annex to Commission Regulation No. 634/2005 and items 2, 3 
and 4 in the Annex to Commission Regulation No. 2171/2005:  
(a) In the absence of the duty suspension under Council Regulation No. 179/2009, the 
measures direct national customs authorities to classify some flat panel display 
devices that are capable of receiving and reproducing video images both from an automatic data-processing machine and from a source other than an automatic data-
processing machine, that fall within th e scope of the FPDs narrative description 
and/or within the scope of the CN code 8471 60 90, under dutiable headings.  
Because the concessions call for duty-free treat ment of products falling within their 
scope, this dutiable treatment is inconsistent  with Article II:1(b) of the GATT 1994.   
(b) In the absence of the duty suspension under Council Regulation No. 179/2009, the 
measures direct national customs authorities to classify some flat panel display devices that have a DVI interface, whether or not they are capable of receiving 
signals from another source, that fall within the scope of the FPDs narrative 
description and/or within the scope of  the CN code 8471 60 90, under dutiable 
headings.  Because the concessions call fo r duty-free treatment of products falling 
within their scope, this dutiable treatment is  inconsistent with Article II:1(b) of the 
GATT 1994.   
(c) Given the duty suspension currently in effect for certain products in dispute falling 
within the scope of the FPDs narrative descr iption or within the scope of CN code 
8471 60 90, the inconsistency w ith Article II:1(b) referred to  in subparagraphs (a) and 
(b) above is eliminated because the duties are suspended and hence are not in excess 
of those provided for in the EC Schedule. 
(d) For those products in dispute falling within the scope of the FPDs narrative 
description or within the scope of CN c ode 8471 60 90 and that are not covered by 
the duty suspension with the result that they  are subject to dutiable treatment, the duty 
suspension does not eliminate the inconsiste ncy with Article II:1(b) for these products 
and therefore this dutiable treatment is inc onsistent with Article II:1(b) of the GATT 
1994. 
(e) The European Communities fails to accord treatment no less favourable than that set 
forth in its Schedule to the commerce of the other WTO Members, in particular 
certain flat panel display devices that ar e capable of receiving and reproducing video 
images both from an automatic data-processing machine and from a source other than an automatic data-processing machine, or th at have a DVI interface, whether or not 
they are capable of receiving signals from another source.  Thus, the European 
Communities is inconsistent with Artic le II:1(a) of the GATT 1994.  This 
inconsistency is not eliminated by the duty suspension with respect to certain products in dispute falling within the sc ope of the FPDs narrative description or 
within the scope of CN code 8471 60 90 because the duty suspension measure does not eliminate the failure to accord treatme nt no less favourable to the commerce of 
the other WTO Members.  WT/DS376/R 
 Page 451 
 
 
  2. STBCs 
8.18 With respect to the CNEN 2008/C 112/03 whic h operates in conjunction with the CN, the 
Panel finds that: 
(a) The measures direct national customs authorities to classify under dutiable headings 
some set top boxes which incorporate a device performing a recording or reproducing 
function and retain the essential character of a set top box and that fall within the 
scope of the STBCs narrative description in the Annex to the EC Schedule.  Because the concession calls for duty-free treatment of products falling within its scope, this dutiable treatment is inconsistent with  Article II:1(b) of the GATT 1994.   
(b) The measures direct national customs authorities to classify under dutiable headings 
some set top boxes which utilise ISDN, WLAN or Ethernet technology, and that fall 
within the scope of the STBCs narrative descr iption in the Annex to the EC Schedule.  
Because the concession calls for duty-free tr eatment of products falling within its 
scope, this dutiable treatment is inconsiste nt with Article II:1(b) of the GATT 1994. 
(c) By virtue of the inconsistency with Arti cle II:1(b) of the GATT 1994, the measures 
accord treatment less favourable to such  set top boxes than that provided for under 
the STBCs narrative description in the A nnex to the EC Schedule and thus the 
measures are also inconsistent with  Article II:1(a) of the GATT 1994. 
3. MFMs 
8.19 With respect to item 1of the Annex to Commission Regulation No. 517/1999, the Panel finds 
that: 
(a) The regulation requires dutiable treatment of  certain ADP MFMs that fall within the 
scope of the concession for "input or ou tput units" in HS1996 subheading 8471 60 of 
the EC Schedule.  Because the concession calls for duty-free treatment of products 
falling within its scope, this dutiable treatmen t is inconsistent with Article II:1(b) of 
the GATT 1994.   
(b) By virtue of the inconsistency with Arti cle II:1(b) of the GATT 1994, the measures 
accord treatment less favourable to certa in ADP MFMs than that provided for under 
the EC Schedule and thus the measures are al so inconsistent with Article II:1(a) of 
the GATT 1994. 
(c) The regulation requires dutiable treatment of certain non-ADP MFMs that fall within 
the scope of the concession for "facsimile machines" in HS1996 subheading 8517 21 
of the EC Schedule.  Because the concessi on calls for duty-free treatment of products 
falling within its scope, this dutiable treatmen t is inconsistent with Article II:1(b) of 
the GATT 1994.   
(d) By virtue of the inconsistency with Arti cle II:1(b) of the GATT 1994, the measures 
accord treatment less favourable to certain non-ADP MFMs than that provided for 
under the EC Schedule and thus the measures ar e also inconsistent with Article II:1(a) 
of the GATT 1994. 
8.20 With respect to the 2005 Statement, the Panel finds that: WT/DS376/R 
Page 452  
 
  (a) Because the measure has guided and serves to guide the European Communities 
uniform application of the  common custom s tariff in a way that results in the 
application of duties to those ADP MFMs that fall within the duty-free concession, 
the measure is inconsistent with  Article II:1(b) of the GATT 1994. 
(b) By virtue of the inconsistency with Arti cle II:1(b) of the GATT 1994, the measures 
accord treatment less favourable to certa in ADP MFMs than that provided for under 
the EC Schedule and thus the measures are al so inconsistent with Article II:1(a) of 
the GATT 1994. 
(c) Because the measure has guided and serves to guide the European Communities 
uniform application of the common custom s tariff in a way that results in the 
application of duties to those non-ADP MFMs that fall within the duty-free 
concession, the measure is inconsistent with Article II:1(b) of the GATT 1994. 
(d) By virtue of the inconsistency with Arti cle II:1(b) of the GATT 1994, the measures 
accord treatment less favourable to certain non-ADP MFMs than that provided for under the EC Schedule and thus the measures ar e also inconsistent with Article II:1(a) 
of the GATT 1994. 
8.21 With respect to item 4 of the Annex to Commission Regulation No. 400/2006, the Panel finds 
that: 
(a) The regulation requires dutiable treatment of  certain ADP MFMs that fall within the 
scope of the concession for "input or ou tput units" in HS1996 subheading 8471 60 of 
the EC Schedule.  Because the concession calls for duty-free treatment of products 
falling within its scope, this dutiable treatmen t is inconsistent with Article II:1(b) of 
the GATT 1994.   
(b) By virtue of the inconsistency with Artic le II:1(b) of the GATT 1994, the regulation 
accords treatment less favourable to certa in ADP MFMs than that provided for under 
the EC Schedule and thus the measures are al so inconsistent with Article II:1(a) of 
the GATT 1994. 
(c) The regulation does not require the dutiable treatment of non-ADP MFMs with a 
facsimile function.  Therefore, th e European Communities has not acted 
inconsistently with Article  II:1(b) of the GATT 1994 with respect to non-ADP MFMs 
with a facsimile function as the measure does not impose duties in excess of those 
provided for in the EC Schedule.   
8.22 With respect to the CN2007, the Panel finds that: 
(a) The three relevant CN2007 codes require th at certain ADP MFMs which fall within 
the scope of the duty-free concession for input or output units of an ADP in 
subheading 8471 60 of the EC Schedule be charged a duty of 6 per cent.  Therefore, with respect to these products, the measure is inconsistent with Article II:1(b) of the 
GATT 1994. 
(b) By virtue of the inconsistency with Article II:1(b) of the GATT 1994, the CN2007 
accords treatment less favourable to certa in ADP MFMs than that provided for under 
the EC Schedule and thus the measures are al so inconsistent with Article II:1(a) of 
the GATT 1994.  WT/DS376/R 
 Page 453 
 
 
  (c) The three relevant CN2007 codes require that certain non-ADP MFMs which fall 
within the scope of the duty-free concession for "facsimile machines" in subheading 
8517 21 of the EC Schedule be charged a duty of  6 per cent.  Theref ore, with respect 
to these products, the measure is inconsiste nt with Article II:1(b) of the GATT 1994. 
(d) By virtue of the inconsistency with Article II:1(b) of the GATT 1994, the CN2007 
accords treatment less favourable to certain non-ADP MFMs than that provided for 
under the EC Schedule and thus the measures ar e also inconsistent with Article II:1(a) 
of the GATT 1994. 
4. Nullification and impairment 
8.23 Under Article 3.8 of the DSU, in cases where there is infringement of the obligations assumed 
under a covered agreement, the action is considered prima facie to cons titute a case of nullification or 
impairment of benefits under that agreement.  Acco rdingly, we conclude that to the extent that the 
European Communities has acted inconsistently with  Articles II:1(a) and II:1(b) of the GATT 1994, it 
has nullified or impaired benefits accruing to Japan under that agreement.  
5. Recommendations 
8.24 Pursuant to Article 19.1 of the DSU, having found that the European Communities has acted 
inconsistently with Articles II:1(a) and II:1(b) of the GATT 1994, we recommend that the Dispute 
Settlement Body request the European Communities to  bring the relevant measures into conformity 
with its obligations under the GATT 1994. 
8.25 We recall that the European Communities has indicated that the Commission Regulation Nos. 
634/2005 and 2171/2005 would be repealed.1940  In addition, the Europ ean Communities has indicated 
that Commission Regulation Nos. 517/1999  and 400/2006 would be repealed as of October 2009.1941  
However, there is no evidence properly before the Pane l confirming such repeal.  Therefore, the Panel 
has proceeded on the basis that the said measures are in force. 
  
                                                     
 
1940 European Communities' first written submission, para. 95; European Communities' second written 
submission, para. 63. 
1941 European Communities' response to Panel question No. 110. WT/DS377/R 
Page 454  
 
  C. C
OMPLAINT BY THE CHINESE TAIPEI (DS377):   CONCLUSIONS OF THE PANEL  
1. FPDs 
8.26 Chinese Taipei has made claims with respect  to Council Regulation 2658/87, as amended, 
CNEN 2008/C 133/01, Commission Regulation Nos. 634/2005 and 2171/2005. The Panel analyzed how these measures worked in conjunction with and in the absence of the duty suspension under 
Council Regulation No. 179/2009.  
8.27 With respect to the CNEN 2008/C 133/01, which operates in conjunction with the CN, the 
Panel finds that:  
(a) In the absence of the duty suspension under Council Regulation No. 179/2009, the 
measures direct national customs authorities to classify some flat panel display 
devices that are capable of receiving and reproducing video images both from an 
automatic data-processing machine and from a source other than an automatic data-
processing machine, that fall within th e scope of the FPDs narrative description 
and/or within the scope of the CN code 8471 60 90, under dutiable headings.  Because the concessions call for duty-free treat ment of products falling within their 
scope, this dutiable treatment is inconsistent  with Article II:1(b) of the GATT 1994.   
(b) In the absence of the duty suspension under Council Regulation No. 179/2009, the 
measures direct national customs authorities to classify some flat panel display devices that have a DVI interface, whether or not they are capable of receiving signals from another source, that fall within the scope of the FPDs narrative description and/or within the scope of  the CN code 8471 60 90, under dutiable 
headings.  Because the concessions call fo r duty-free treatment of products falling 
within their scope, this dutiable treatment is  inconsistent with Article II:1(b) of the 
GATT 1994.   
(c) Given the duty suspension currently in effect for certain products in dispute falling 
within the scope of the FPDs narrative descr iption or within the scope of CN code 
8471 60 90, the inconsistency w ith Article II:1(b) referred to  in subparagraphs (a) and 
(b) above is eliminated because the duties are suspended and hence are not in excess 
of those provided for in the EC Schedule. 
(d) For those products in dispute falling within the scope of the FPDs narrative 
description or within the scope of CN c ode 8471 60 90 and that are not covered by 
the duty suspension with the result that they  are subject to dutiable treatment, the duty 
suspension does not eliminate the inconsiste ncy with Article II:1(b) for these products 
and therefore this dutiable treatment is inc onsistent with Article II:1(b) of the GATT 
1994. 
(e) The European Communities fails to accord treatment no less favourable than that set 
forth in its Schedule to the commerce of the other WTO Members, in particular 
certain flat panel display devices that ar e capable of receiving and reproducing video 
images both from an automatic data-processing machine and from a source other than an automatic data-processing machine, or th at have a DVI interface, whether or not 
they are capable of receiving signals from another source.  Thus, the European Communities is inconsistent with Artic le II:1(a) of the GATT 1994.  This 
inconsistency is not eliminated by the duty suspension with respect to certain 
products in dispute falling within the sc ope of the FPDs narrative description or 
within the scope of CN code 8471 60 90 because the duty suspension measure does  WT/DS377/R 
 Page 455 
 
 
  not eliminate the failure to accord treatme nt no less favourable to the commerce of 
the other WTO Members. 
8.28 With respect to item 4 in the Annex to Commission Regulation No. 634/2005 and items 2, 3 
and 4 in the Annex to Commission Regulation No. 2171/2005:  
(a) In the absence of the duty suspension under Council Regulation No. 179/2009, the 
measures direct national customs authorities to classify some flat panel display 
devices that are capable of receiving and reproducing video images both from an automatic data-processing machine and from a source other than an automatic data-
processing machine, that fall within th e scope of the FPDs narrative description 
and/or within the scope of the CN code 8471 60 90, under dutiable headings.  
Because the concessions call for duty-free treat ment of products falling within their 
scope, this dutiable treatment is inconsistent  with Article II:1(b) of the GATT 1994.   
(b) In the absence of the duty suspension under Council Regulation No. 179/2009, the 
measures direct national customs authorities to classify some flat panel display devices that have a DVI interface, whether or not they are capable of receiving 
signals from another source, that fall within the scope of the FPDs narrative 
description and/or within the scope of  the CN code 8471 60 90, under dutiable 
headings. Because the concessions call for duty-free treatment of products falling within their scope, this dutiable treatment is  inconsistent with Article II:1(b) of the 
GATT 1994.   
(c) Given the duty suspension currently in effect for certain products in dispute falling 
within the scope of the FPDs narrative descr iption or within the scope of CN code 
8471 60 90, the inconsistency w ith Article II:1(b) referred to  in subparagraphs (a) and 
(b) above is eliminated because the duties are suspended and hence are not in excess 
of those provided for in the EC Schedule. 
(d) For those products in dispute falling within the scope of the FPDs narrative 
description or within the scope of CN c ode 8471 60 90 and that are not covered by 
the duty suspension with the result that they  are subject to dutiable treatment, the duty 
suspension does not eliminate the inconsiste ncy with Article II:1(b) for these products 
and therefore this dutiable treatment is inc onsistent with Article II:1(b) of the GATT 
1994. 
(e) The European Communities fails to accord treatment no less favourable than that set 
forth in its Schedule to the commerce of the other WTO Members, in particular 
certain flat panel display devices that ar e capable of receiving and reproducing video 
images both from an automatic data-processing machine and from a source other than an automatic data-processing machine, or th at have a DVI interface, whether or not 
they are capable of receiving signals from another source.  Thus, the European 
Communities is inconsistent with Artic le II:1(a) of the GATT 1994.  This 
inconsistency is not eliminated by the duty suspension with respect to certain products in dispute falling within the sc ope of the FPDs narrative description or 
within the scope of CN code 8471 60 90 because the duty suspension measure does not eliminate the failure to accord treatme nt no less favourable to the commerce of 
the other WTO Members. 
2. STBCs 
8.29 With respect to the CNEN 2008/C 112/03 whic h operates in conjunction with the CN, the 
Panel finds that: WT/DS377/R 
Page 456  
 
  (a) The measures direct national customs authorities to classify under dutiable headings 
some set top boxes which incorporate a device performing a recording or reproducing function and retain the essential character of a set top box and that fall within the scope of the STBCs narrative description in the Annex to the EC Schedule.  Because the concession calls for duty-free treatment of products falling within its scope, this 
dutiable treatment is inconsistent with  Article II:1(b) of the GATT 1994.   
(b) The measures direct national customs authorities to classify under dutiable headings 
some set top boxes which utilise ISDN, WLAN or Ethernet technology, and that fall within the scope of the STBCs narrative descr iption in the Annex to the EC Schedule.  
Because the concession calls for duty-free tr eatment of products falling within its 
scope, this dutiable treatment is inconsiste nt with Article II:1(b) of the GATT 1994. 
(c) By virtue of the inconsistency with Arti cle II:1(b) of the GATT 1994, the measures 
accord treatment less favourable to such  set top boxes than that provided for under 
the STBCs narrative description in the A nnex to the EC Schedule and thus the 
measures are also inconsistent with  Article II:1(a) of the GATT 1994. 
8.30 With respect to claims regarding the consistency of the CNEN 2008/C 112/03 with Article X, 
the Panel finds that: 
(a) The European Communities failed to publish promptly CNEN 2008/C 112/03, such 
as to enable governments and traders to b ecome acquainted with them, and has thus 
acted inconsistently with Article X:1 of the GATT 1994.   
(b) The European Communities has not acted inconsistently with Article X:2 of the 
GATT 1994 with respect to the Octobe r 2006 CNEN amendment because the 
complainants did not establish that the Eu ropean Communities enforced the October 
2006 CNEN amendment before its official publication as CNEN 2008/C 112/03 in the EU Official Journal on 7 May 2008. 
(c) The European Communities has acted incons istently with Article X:2 of the GATT 
1994 with respect to the April 2007 CNEN amendment by enforcing the April 2007 
CNEN amendment before its official publication as CNEN 2008/C 112/03 in the EU 
Official Journal on 7 May 2008. 
3. MFMs 
8.31 With respect to item 1of the Annex to Commission Regulation No. 517/1999, the Panel finds 
that: 
(a) The regulation requires dutiable treatment of  certain ADP MFMs that fall within the 
scope of the concession for "input or ou tput units" in HS1996 subheading 8471 60 of 
the EC Schedule. Because the concession ca lls for duty-free treatment of products 
falling within its scope, this dutiable treatmen t is inconsistent with Article II:1(b) of 
the GATT 1994.   
(b) By virtue of the inconsistency with Arti cle II:1(b) of the GATT 1994, the measures 
accord treatment less favourable to certa in ADP MFMs than that provided for under 
the EC Schedule and thus the measures are al so inconsistent with Article II:1(a) of 
the GATT 1994.  WT/DS377/R 
 Page 457 
 
 
  (c) The regulation requires dutiable treatment of certain non-ADP MFMs that fall within 
the scope of the concession for "facsimile machines" in HS1996 subheading 8517 21 
of the EC Schedule.  Because the concessi on calls for duty-free treatment of products 
falling within its scope, this dutiable treatmen t is inconsistent with Article II:1(b) of 
the GATT 1994.   
(d) By virtue of the inconsistency with Arti cle II:1(b) of the GATT 1994, the measures 
accord treatment less favourable to certain non-ADP MFMs than that provided for under the EC Schedule and thus the measures ar e also inconsistent with Article II:1(a) 
of the GATT 1994. 
8.32 With respect to the 2005 Statement, the Panel finds that: 
(a) Because the measure has guided and serves to guide the European Communities 
uniform application of the common custom s tariff in a way that results in the 
application of duties to those ADP MFMs that fall within the duty-free concession, 
the measure is inconsistent with  Article II:1(b) of the GATT 1994. 
(b) By virtue of the inconsistency with Arti cle II:1(b) of the GATT 1994, the measures 
accord treatment less favourable to certa in ADP MFMs than that provided for under 
the EC Schedule and thus the measures are al so inconsistent with Article II:1(a) of 
the GATT 1994. 
(c) Because the measure has guided and serves to guide the European Communities 
uniform application of the common custom s tariff in a way that results in the 
application of duties to those non-ADP MFMs that fall within the duty-free 
concession, the measure is inconsistent with Article II:1(b) of the GATT 1994. 
(d) By virtue of the inconsistency with Arti cle II:1(b) of the GATT 1994, the measures 
accord treatment less favourable to certain non-ADP MFMs than that provided for under the EC Schedule and thus the measures ar e also inconsistent with Article II:1(a) 
of the GATT 1994. 
8.33 With respect to item 4 of the Annex to Commission Regulation No. 400/2006, the Panel finds 
that: 
(a) The regulation requires dutiable treatment of  certain ADP MFMs that fall within the 
scope of the concession for "input or ou tput units" in HS1996 subheading 8471 60 of 
the EC Schedule. Because the concession ca lls for duty-free treatment of products 
falling within its scope, this dutiable treatmen t is inconsistent with Article II:1(b) of 
the GATT 1994.   
(b) By virtue of the inconsistency with Artic le II:1(b) of the GATT 1994, the regulation 
accords treatment less favourable to certa in ADP MFMs than that provided for under 
the EC Schedule and thus the measures are al so inconsistent with Article II:1(a) of 
the GATT 1994. 
(c) The regulation does not require the dutiable treatment of non-ADP MFMs with a 
facsimile function. Therefore, the European  Communities has not acted inconsistently 
with Article II:1(b) of the GATT 1994 with respect to non-ADP MFMs with a facsimile function as the measure does not im pose duties in excess of those provided 
for in the EC Schedule.   WT/DS377/R 
Page 458  
 
  8.34 With respect to the CN2007, the Panel finds that: 
(a) The three relevant CN2007 codes require th at certain ADP MFMs which fall within 
the scope of the duty-free concession for input or output units of an ADP in 
subheading 8471 60 of the EC Schedule be charged a duty of 6 per cent.  Therefore, with respect to these products, the measure is inconsistent with Article II:1(b) of the 
GATT 1994. 
(b) By virtue of the inconsistency with Article II:1(b) of the GATT 1994, the CN2007 
accords treatment less favourable to certa in ADP MFMs than that provided for under 
the EC Schedule and thus the measures are al so inconsistent with Article II:1(a) of 
the GATT 1994. 
(c) The three relevant CN2007 codes require that certain non-ADP MFMs which fall 
within the scope of the duty-free concession for "facsimile machines" in subheading 
8517 21 of the EC Schedule be charged a duty of  6 per cent.  Therefore, with respect 
to these products, the measure is inconsiste nt with Article II:1(b) of the GATT 1994. 
(d) By virtue of the inconsistency with Article II:1(b) of the GATT 1994, the CN2007 
accords treatment less favourable to certain non-ADP MFMs than that provided for 
under the EC Schedule and thus the measures ar e also inconsistent with Article II:1(a) 
of the GATT 1994. 
4. Nullification and impairment 
8.35 Under Article 3.8 of the DSU, in cases where there is infringement of the obligations assumed 
under a covered agreement, the action is considered prima facie to cons titute a case of nullification or 
impairment of benefits under that agreement. Accordingly, we concl ude that to the extent that the 
European Communities has acted in consistently with Articles II:1( a), II:1(b), X:1 and X:2 of the 
GATT 1994, it has nullified or impaired benefits accr uing to Chinese Taipei under that agreement.  
5. Recommendations 
8.36 Pursuant to Article 19.1 of the DSU, having found that the European Communities has acted 
inconsistently with Articles II:1(a), II:1(b), X:1,  and X:2 of the GATT 1994, we recommend that the 
Dispute Settlement Body request the European Co mmunities to bring the relevant measures into 
conformity with its obligations under the GATT 1994. 
8.37 We recall that the European Communities has indicated that the Commission Regulation Nos. 
634/2005 and 2171/2005 would be repealed.
1942 In addition, the European  Communities has indicated 
that Commission Regulation Nos. 517/1999 and 400/ 2006 would be repealed as of October 2009.1943  
However, there is no evidence properly before the Pane l confirming such repeal.  Therefore, the Panel 
has proceeded on the basis that the said measures are in force. 
_______________  
 
                                                      
1942 European Communities' first written submission, para. 95; European Communities' second written 
submission, para. 63. 
1943 European Communities' response to Panel question No. 110.