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  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 
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  ANNEX C-1  
 
EXECUTIVE SUMMARY OF THE FIRST WRITTEN SUBMISSION  
BY CHINESE TAIPEI 
 
I. INTRODUCTION 
1. The Ministerial Declaration on Trade in  Information Technology Products ("ITA", 
Information Technology Agreement) was signed dur ing the WTO Ministerial Conference held in 
Singapore on 13 December 1996.  Participants to th e ITA agreed to bind and eliminate customs duties 
and other duties and charges of any kind within th e meaning of Article II:1(b) of the GATT 1994 with 
respect to the products listed in the Attachments to the ITA.  
2. As a participant in the ITA, the European Co mmunities ("EC") modified its Schedule in order 
to undertake its commitments under the ITA.  Spec ifically, the EC bound and eliminated all customs 
duties and other duties and charges on products listed in Attachment A and Attachment B to the ITA, 
including, inter alia , flat panel displays ("FPDs"), set-top boxes ("STBs") with a communication 
function, and certain "input or output units" of "a utomatic data processing machines" and "facsimile 
machines" ("MFMs").  
3. However, as a result of certain EC measures challenged in this dispute, the EC and its 
member States apply customs duties on the aforem entioned products, specifically, a 14% duty on 
FPDs, 13.9% and 14% duties on STBs and a 6% duty on MFMs.  The EC and its member States 
therefore accord to the commerce of those products from inter alia  the Separate Customs Territory of 
Taiwan, Penghu, Kinmen and Matsu ("TPKM") treatment less favourable than th at provided for in the 
EC Schedule.  These customs duties are in excess of  those set forth and provided in the EC Schedule 
and subject to terms, conditions a nd qualifications not set forth in the EC Schedule.  The EC therefore 
violates Articles II:1(a) and II:1(b) of the GATT 1994.  
4. In addition, by failing to publish certain cl assification measures with respect to STBs 
promptly and by applying duties prior to their publication, the EC and its member States acted 
inconsistently with their obligations u nder Articles X:1 and X:2 of the GATT 1994.  
II. FACTUAL BACKGROUND 
A. T
HE PRODUCTS AT ISSUE  
5. FPDs are display devices capable of receiving signals from automatic data-processing 
("ADP") machines only or from both ADP machines and other sources.  They normally have a variety 
of connectors from the traditional VGA connector to Digital Video Interface ("DVI"), among other 
connectors.  The common element to all FPDs conc erned is that they can only be used with ADP 
machines, or with ADP machines and other apparatus.  
6. STBs with a communication function are devices that enable a television set to receive and 
decode digital television ("DTV") signals.  They in clude the capability to connect to the Internet 
through a modem.  Sometimes they also include a hard disk drive (HDD) to record television 
programmes and to perform other ancillary a pplications enabled by the DTV provider.  
7. MFMs are machines capable of performing two or  more of the following functions: printing, 
scanning, copying and faxing.  They can be further di vided into two main categories of products.  The 
first category includes MFMs that are connectable to an ADP machine or to a computer network.  The  WT/DS375/R 
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  second category includes MFMs that cannot connect to an ADP machine but that operate in 
connection with a phone line.  None of the MFMs at issue include a function using traditional photocopying technology.  
B. T
HE MEASURES AT ISSUE  
1. FPDs 
8. The EC published Commission Regulation (EC) No. 634/2005 on 26 April 2005 and 
Commission Regulation (EC) No. 2171/2005 on 29 D ecember 2005.  Pursuant to these Regulations, a 
monitor of the liquid crystal display (LCD) type with a DVI among other connectors was classified 
under 8528.21.90 and subject to 14% duty.  Classifi cation as an output unit of an ADP machine in 
heading 8471 is excluded because such monitor is not of the kind solely or principally used in an ADP 
machine system in view of its capabilities to displa y signals from sources other than an ADP machine, 
such as a closed circuit television system, a DVD player or a camcorder. 
9. On 30 May 2008, the EC published a consolidated  version of the Explanatory Notes to the 
Combined Nomenclature (CNEN), 2008/C 133/01, wh ich confirms that any FPD which is not 
exclusively  used with ADP machines or systems will be  excluded from the classification subject to 
zero tariff treatment.  
10. On 31 October 2008, the EC published Co mmission Regulation (EC) No. 1031/2008 
amending Council Regulation (EEC) No. 2658/87 an d establishing the 2009 CN through which FPDs 
for use solely or principally with ADP machines are classified under heading 8528.  However, the 
applicable zero tariff was still reserved for FPDs solely or principally used with ADP systems 
pursuant to the above classification measures.  
11. TPKM notes that, through Council Regulation (EC) No. 493/2005 on 16 March 2005, and 
Council Regulation (EC) No. 301/2007 on 22 Marc h 2007, the EC suspends duties on certain LCD 
FPDs.  The latter expired on 31 December 2008 although the EC Commission has introduced a proposal to expand and prolong the duty suspension.   
2. STBs 
12. In 2006, the EC Commission proposed a draft CNEN to clarify the type of STBs covered by 
CN subheading 8528.12.91 as STBs with a commun ication function, and the classification of STBs 
with HDD.  The text of the CNEN was partly adopted by the Customs Code Committee during its 
meeting of October 2006.  However, the vote on th e draft CNEN concerning STBs with a HDD was 
not adopted until the meeting of April 2007.  
13. Although the CNEN were adopted in October 2006 and April 2007, they were only published 
in the Official Journal of the European Union on 7 May 2008.  However, they were already applied by 
EC member States before its publication.  
14. As a result of the CNEN, STBs with a HD D are classified as video recorders under 
CN 8521.90.00 and are subject to a 13.9% customs duty rate.  In addition, STBs that include devices 
that allow access to the Internet, such as ISDN-  WLAN- or Ethernet devices, are excluded from 
duty-free tariff treatment and classified under CN subheading 8528.71.19 subject to a 14% customs duty on the ground that such devices are not considered to be "modems".  WT/DS375/R 
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  3. MFMs
 
15. On 9 March 1999, the EC published Commis sion Regulation (EC) No. 517/1999 which 
classifies certain MFMs with the functions of scanning, printing, faxing and photocopying under 
CN 9009.12.00 subject to a 6% customs duty.  The reason is that none of the above functions are 
considered to give the product its essential character. 
16. On 9 March 2006, the EC published Commis sion Regulation (EC) No. 400/2006 which 
classifies certain MFMs with the functions of scanning, printing and co pying under CN 9009.12.00 
subject to 6% customs duty.  The reason is that none  of the above functions are considered to give the 
product its essential character. 
17. The Customs Code Committee held its 360th meeting in 2005.  The Report of this meeting 
states that "The Committee agreed that if a multifunctional 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."  
18. On 31 October 2008, the EC published Commi ssion Regulation (EC) No. 1031/2008 which 
provides that MFMs performing a fax function a nd capable of coping 12 or less monochrome pages 
per minute are subject to 0% customs duty.  However, MFMs which do not incorporate a fax function or which incorporate a fax function but are capable  of copying more than 12 monochrome pages per 
minute are subject to 6% customs duty. 
III. ARGUMENTS 
A. B
Y IMPOSING CUSTOMS DUTIES ON CERTAIN FPD S, THE EC IS VIOLATING ARTICLES  II:1( A) 
AND ARTICLES  II:1( B) OF THE GATT 1994 
1. The EC Schedule incorporates Attachment B to the ITA which obliges the EC to grant 
duty-free treatment to FPDs for products falling within the ITA 
19. According to the EC Schedule, a product c overed by the description "flat panel display 
devices (including LCD, Electro Luminescence, Plasma, Vacuum-Fluorescence and other 
technologies) for products falling with in this agreement, and parts th ereof" must be granted duty-free 
treatment, wherever this product is classified. Therefor e, the question in this dispute is to determine 
the scope of the concession granted with respect to  "flat panel display devices".  In particular, the 
Panel must decide whether the EC is entitled to ex clude from the scope of the relevant concession any 
FPDs which can receive signals from an ADP mach ine and from other sources due to the presence of 
a DVI, or any other connector.  Those questions will be examined below in the light of Articles 31 
and 32 of the Vienna Convention on the Law of Treaties ("Vienna Convention"). 
(a) Ordinary meaning 
20. The ordinary meaning of "flat panel display de vices" indicates that they are thin screen 
devices to visualize data or signals.  They have a variety of applications including reproduction of 
signals from ADP machines.  However, they can also  visualize data from other sources.  It follows 
from the ordinary meaning that a flat panel display device is not limited to receiving signals from an 
ADP machine only.  WT/DS375/R 
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  (b) Context 
21. The concession contained in the EC Schedule refe rs to "flat panel display devices (including 
LCD, Electro Luminescence, Plasma, Vacuum-Fluorescence and other technologies) for products 
falling within this agreement , and parts thereof" (emphasis added).  It is clear that the concession only 
requires that flat panel display devices be "for" pr oducts falling within the ITA.  It is therefore 
sufficient if the flat panel display device is inte r alia used with products falling within the ITA and 
therefore at least with ADP machines.  As a resu lt, FPDs are covered by that concession even though 
they may be able to be connected to  apparatus other than ADP machines. 
22. Second, the EC Schedule grants duty-free treatment  to a number of products even though they 
may be able to be connected to apparatus other than ADP machines.  For instance, a concession is 
granted to "projection type flat panel display un its used with automatic data processing machines 
which can display digital informati on generated by the central processing unit".  It is sufficient that 
the flat panel display can display information from an ADP machine.  There is no reason to apply a 
more restrictive interpretation to the FPDs at issue which also concern flat panel display technologies.  
23. Finally, in connection with the concession of "f lat panel display devices", the EC listed in its 
modified Schedule 14 CN subheadings under wh ich those devices could be classified. Having 
analysed the 14 tariff subheadings, TPKM considers that they do not support the proposition that 
FPDs are excluded from those concessions if they are able to be connected to apparatus other than 
ADP machines.  
(c) Object and purpose 
24. TPKM submits that any interpretation that ex cludes from the broad EC concession any FPDs 
which are capable of receiving signals not only from ADP machines but also from other sources is 
contrary to the object and purpose of the GATT 1994 and the ITA.  
(d) Other Considerations 
25. In practice, the EC classified FPDs capable of receiving signals both from an ADP machine 
and other sources under heading 8471 or other headings  subject to 0% customs duty.  Such consistent 
classification under zero tariff headings was maintained  until 2004 when the EC started to reclassify 
under dutiable headings first plasma FPDs and then LCD FPDs.  
2. The EC Schedule incorporates Attachment A to the ITA which obliges the EC to grant 
duty-free treatment to "output units" including certain FPDs 
26. TPKM submits, independently from the concession made with respect to "flat panel display 
devices" in the EC Schedule, that the concession ma de with respect to subh eading 8471.60 ("input or 
output units, whether or not containing storage units  in the same housing") also covers certain FPDs 
capable of receiving signals both from an ADP machine and other sources. 
(a) Ordinary meaning 
27. The ordinary meaning of the term "output units" demonstrates that this te rm is very broad and 
covers any element or item capabl e of delivering information from the computer.  It follows from the 
ordinary meaning that a FPD which can receive signals both from an ADP machine and from other 
sources shall fall within the scope of "output units".   The ordinary meaning of "output unit" does not WT/DS375/R 
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  support the proposition that a FPD covered by subh eading 8471.60 must be capable of receiving 
signals only from a computer system.  
(b) Context  
28. The EC in its Schedule defines subheading 8471.60 as "input or output units, whether or not 
containing storage units in the same housing".  Reading subheading 8471.60 in conjunction with 
heading 8471, the term "whether or not containing storage units in the same housing" does not suggest 
that a FPD capable of receiving signals both fr om an ADP machine and other sources would be 
excluded from the definition of this subheading. 
29. The structure of heading 8471 contained in the EC Schedule also confirms the broad scope of 
this heading.  It clearly covers all types of data  processing technologies.  In addition, nothing in the 
description of the subheadings under heading 8471 suggests that only products capable of working 
exclusively with an ADP machin e may be classified under heading 8471.  Therefore, TPKM submits 
that FPDs capable of receiving signals both from an ADP machine and other sources are covered by 
subheading 8471.60.  
(c) The Harmonized System 
30. Note 5 (B) to Chapter 84 lays down the requireme nts to qualify as a unit of an ADP machine.  
Among others, Note 5 (B) requires that such unit must be of a kind solely or principally  used in an 
automatic data-processing system.  It is  therefore sufficient that a FPD is principally used with an 
ADP machine to be classified under heading 8471, regardless of whether it is also capable of 
receiving signals from other sources.  
31. Further, Note 5(C) to Chapter 84 confirms  a classification under heading 8471even when the 
units of the ADP machine are presented separately. This Chapter Note does not require exclusive use 
with an ADP machine.   
(d) Other Considerations  
32. Under the HS 2007, FPDs previously classified under HS subheading 8471.60 are classified 
under new HS subheading 8528.51 (CN subheading 8528.51.00) which has the following wording: "of a kind solely or principally  used in an automatic data-p rocessing system of heading 8471" 
(emphasis added).  The HS 2007 has clearly reject ed any requirement for exclusive use by inserting 
the "sole or principal" criteria in the wording of the subheading 8528.51 itself. 
3. As such, the measures at issue violate Articles II:1(a) and II:1(b) of the GATT 1994 
33. Through the challenged measures as described above, the EC and its member States are 
imposing customs duties on certain FPDs, which is  inconsistent with their obligations under 
Articles II:1(a) and II:1(b) of the GATT 1994.   
34. TPKM notes that the EC suspends duties on certain FPDs through the aforementioned 
Council Regulations.  TPKM is of the view that th e EC would still violate Articles II:1(a) and (b) of 
the GATT 1994 regardless of the duty suspension.  The violation would exist because the benefit of 
the zero tariff is made depende nt on a number of conditions and terms not set forth in the EC 
Schedule.   WT/DS375/R 
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  35. First, duty suspensions may be terminated un ilaterally as soon as the EC considers that the 
conditions for their continuation are no longer fu lfilled.  Second, given the fact that the 
aforementioned Council Regulations only grant a dut y suspension on some types of FPDs, there are 
various types of FPDs that fall outside the scope of the duty suspension at issue and remain subject to 
the 14 % customs duty.   
B. B
Y IMPOSING CUSTOMS DUTIES ON CERTAIN STB S WITH A COMMUNICATION FUNCTION , THE 
EC IS VIOLATING ARTICLES II:1( A) AND II:1( B) OF THE GATT 1994 
1. The EC Schedule incorporates Attachment B to the ITA which obliges the EC to grant 
duty-free treatment to STBs with a communication function  
36. According to the EC Schedule, a product cove red by the description "STBs which have a 
communication function" must be granted duty-free treatment, wherever this product is classified.  Therefore, the question in this dispute is to determ ine the scope of the concession granted with respect 
to STBs.  In particular, the Panel must decide wh ether the EC is entitled to exclude from the scope of 
the relevant concession any STBs with a HDD or ST Bs that include devices, such as ISDN- WLAN- 
or Ethernet modems, allowing access to the Internet on the ground that such devices are not "modems". Those questions will be examined below in the light of Articles 31 and 32 of the Vienna 
Convention. 
(a) Ordinary meaning  
37. As set forth in the EC Schedule, the product covered by the concession at stake is defined as 
"Set top boxes which have a communication functio n: a microprocessor-based device incorporating a 
modem for gaining access to the Internet, and having a function of interactive information exchange". 
TPKM will review first the text of the concession as defi ned before the colon, and then that as defined 
after the colon.  
(i) "Set-top boxes which have a communication function" 
38. The ordinary meaning of the text of the concessi on is clear.  It covers STBs with any type of 
communication function.  The concession does no t require that the STBs should have only a 
communication function.  Therefore, it is suffi cient if the STB has a communication function, 
although it may have additional functions, such as a video recording function.  
(ii) "a microprocessor-based device incorporating a modem for gaining access to the Internet, 
and having a function of int eractive information exchange" 
39. Examining the terms after the colon, TPKM has not found any ground that may justify 
excluding from the scope of the concession at stake STBs which in addition to  the communication 
function, are able to perform a recording or reproduc ing function.  Moreover, the analysis of the term 
"modem" has shown that this te rm has a very broad scope.  
(b) Context 
40. It is recalled that the EC in its Schedule cite d the following 3 subheadings next to STBs in the 
second list: 8517.50.90, 8517.80.90 and 8525.20.99.  In addition, 8528.12.91 was also mentioned as of 2000.  Having analysed the terms of these CN subheadings, TPKM notes that these terms do not 
support that STBs that perform functions in additi on to the communication function cannot be treated WT/DS375/R 
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  as falling under the coverage of the concession at stak e.  Similarly, they do not require that the STBs 
include specific types of modems in order to fall under one of these CN subheadings.  
(c) Object and purpose  
41. TPKM submits that any interpretation whic h would exclude from the EC concession any 
STBs with other functions in addition to the comm unication function or STBs that do not incorporate 
the type of modems that are listed in the CNEN at issue is contrary to the object and purpose of the 
GATT 1994 and the ITA.  
(d) Other Considerations 
42. In practice, the treatment to be given to cer tain STBs which have a communication function 
was first discussed in 2005 and that a first deci sion regarding these matters was not taken until 
October 2006. Between year 2000 and 2006, exporters  were benefiting from duty-free treatment, as 
forseen under the EC Schedule.  
2. As such, the measures at issue violate Articles II:1(a) and II:1(b) of the GATT 1994 
43. Through the challenged measures which are desc ribed above, the EC and its member States 
are imposing customs duties on certain STBs with a communication function, which is inconsistent 
with their obligations under Articles II:1(a) and II:1(b) of the GATT 1994.   
C. B
Y NOT PUBLISHING THE AMENDED EXPLANATORY NOTES RELATED TO THE TARIFFICATION 
OF CERTAIN STB S FOR MORE THAN ONE YEAR , THE EC IS VIOLATING ARTICLE X:1 OF THE 
GATT 1994 
44. Article X:1 of the GATT 1994 provides that "L aws, regulations, judicial decisions and 
administrative rulings of general application, …, shall be published promptly in such a manner as to 
enable governments and traders to become acquainted with them". 
45. In the present case, the fact that the CNEN  at issue was adopted in October 2006 and 
April 2007 but not published until May 2008 is clearly inconsistent with the requirement of "prompt" 
publication included in Article X:1 of the GATT 1994.  
D. BY APPLYING DUT IES ON CERTAIN STB S PRIOR TO THE OFFICIAL PUBLICATION OF THE 
MEASURES IMPOSING THE DUTIES , THE EC IS VIOLATING ARTICLE X:2 OF THE GATT 1994   
46. Article X:2 of the GATT 1994 provides that "N o measure of general application…, shall be 
enforced before such measure h as been officially published."  
47. Some EC member States applied the CNEN on STB s before it was officially published. As a 
result, customs duties were applied before public ation of the CNEN. Therefore, the EC and its 
member States acted inconsistently with its  obligations under Article X:2 of the GATT 1994.  WT/DS375/R 
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  E. B
Y IMPOSING CUSTOMS DUTIES ON CERTAIN MFM S, THE EC IS VIOLATING ARTICLES II:1( A) 
AND II:1( B) OF THE GATT 1994 
1. The EC Schedule incorporates Attachment A to the ITA which obliges the EC to grant 
duty-free treatment to "input or output  units" and to "facsimile machines" 
48. The EC committed itself by accepting the ITA to eliminate all customs duties applicable to 
"input or output units" of ADP machines of HS s ubheading 8471.60 and facsimile machines of HS 
subheading 8517.21.  The Panel must decide whethe r the EC is entitled to exclude from the scope of 
the relevant concession all MFMs connectable to an  ADP machine or network and without a facsimile 
function; and those MFMs connectable to an ADP  machine or network and including a facsimile 
function, when they are capable of copying more  than 12 monochrome pages per minute.  The Panel 
must also determine if certain MFMs which ca nnot connect to an ADP machine but operate in 
connection with a telephone network can be exclud ed from the concession.  Those questions will be 
examined below in the light of Articles 31 and 32 of the Vienna Convention. 
(a) Ordinary Meaning 
(i) "Input or output units" and "Printers" 
49. The terms "input units" and "output units" within the meaning of HS subheading 8471.60 are 
very broadly defined.  Indeed, " output units" refer to any apparatus or thing which receives data or 
information from ADP machines and "input units" c over any apparatus or thing which provides data 
or information to ADP machines.  Thus, the MFMs  capable of connecting an ADP machine constitute 
"input units" and "output units" within the meaning of HS subheading 8471.60.  
50. Among the concessions made with respect to "input or output units" of ADP machines, one 
relates to "printers" (CN subheading 8471.60.40).  Th e term "printer" refers to an output device which 
produces a printed record of data, text, etc.  TPKM notes that the term "printer" in no way requires the 
information or data that are printed to come exclusiv ely from an ADP machine.  It also never refers to 
a maximum or minimum number of pages that coul d be produced in order to be regarded or 
considered as a "printer".  TPKM therefore submits  that the MFMs connectable to an ADP machine 
fall under that concession, i.e. that they are not only "input or output units" of ADP machines, but more specifically "printers". 
(ii) Facsimile machines 
51. The term "facsimile machines" refers to apparatus which reproduce graphic matter by 
scanning an original and which then transmit the scanned data by means of signals sent over a 
telephone network.  TPKM submits th at MFMs at issue that cannot be connected to computers but 
operate in connection with a telephone  network to transmit data are clearly covered by the category of 
"facsimile machines". 
(iii) Photocopier/photocopying process 
52. The EC through the measures at issue cons istently considers the MFM at issue as 
photocopying apparatus.  However, the photocopying process refers to a process whereby a copy is 
being produced by the action of light on a photo-sens itive surface.  There is a direct link between the 
action of light and the copy being produced. The term "photocopy" thus does not cover the reproduction of originals by printing or transmitting a previously scanned data file as it is done by 
MFMs.  WT/DS375/R 
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  (b) Context  
53. As stated above, the structure of HS headi ng 8471 clearly confirms the broad scope of 
heading 8471 as covering all types of data proces sing technologies.  Similarly, the structure of 
heading 8517 also supports its broa d scope.  In particular, this heading includes a residual subheading, 
i.e., "other apparatus" (subheading 8517.80) that c onfirms the intent of that heading to cover all 
"electrical apparatus for line telephony or line te legraphy".  On the contrary, the wording of 
heading 9009, unlike headings 8471 and 8517, includes a very limited category of apparatus.  It only covers photo-copying apparatus and thermo-copying apparatus as well as their parts and accessories.  
Unlike headings 8471 and 8517, heading 9009 does not include a residual subheading.  
54. Next, it is clear from the wording of Chapters 84 and 85 that they intend to cover a broad 
range of apparatus. Chapter 84 covers machinery and mechanical appliances and parts thereof while 
Chapter 85 covers electrical machinery and equipmen t and parts thereof.  In contrast, Chapter 90 
covers very specific instruments or apparatus which are exhaustively listed, namely optical, 
photographic, cinematographic, measuring, checking, precision, medical or surgical instruments or 
apparatus.  Chapter 90 should therefore be rest rictively interpreted, unlike Chapters 84 and 85. 
55. Finally, TPKM refers to headings 8525 a nd 9006 of the EC Schedule which both include 
cameras in order to illustrate the distinction which is being made in the EC Schedule between digital 
and non-digital products. In the EC Schedule, digital cameras are classified in HS 
subheading 8525.40, and more precisely, under CN subheading 8525.40.11 as "still image video 
cameras – digital" while photographic cameras are classi fied in HS heading 9006.  This distinction is 
important and supports the inte rpretation that "photocopying a pparatus" which are included in 
Chapter 90 do not cover digital copying.  
(c) The Harmonized System 
56. As indicated above, pursuant to Note 5 (B) to Chapter 84, a "unit" of an ADP machine must 
be of a kind solely or principally used in ADP syst ems.  Most of the functions of the MFMs at issue, 
i.e., printing and scanning, are designed to be u sed in connection with an ADP machine and are 
therefore functions of an apparatus prin cipally used with an ADP machine.  
57. TPKM notes that such principal use is actually not even required for the MFMs at issue. 
Note 5(D) to Chapter 84 clarifies that a printer re mains covered by HS heading 8471 even if it is not 
used exclusively or even principally  with an ADP system.  Therefore, to the extent that the MFMs at 
issue are printers, they do not need to be used solely or principally w ith an ADP system in order to fall 
within HS heading 8471. 
58. Finally, the HSEN to heading 9009 confirms that the term "photocopying" does not include 
the conversion of an image into digital data by a sca nner and the printing of that data by the printer.  
(d) Object and Purpose 
59. TPKM submits that any interpretation which excludes from the EC concession MFMs which 
do not incorporate a fax function or which incorporate a fax function but are capable of copying more than 12 monochrome pages per minute is contrary  to the object and purpose of the GATT 1994 and 
the ITA.  The exclusion of certain MFMs with a facsimile function and which cannot connect to an 
ADP machine or computer network is also contra ry to the object and purpose of the GATT 1994 and 
the ITA.   WT/DS375/R 
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  (e) Other Considerations 
(i) Certain BTIs with respect to MFMs 
60. In practice, the classification of MFMs cap able of connecting to ADP machines under 
headings 8517 or 8471 is confirmed by various BTIs. The multifunctional nature of the device did not 
in any case justify the classification as copier unles s the device could not be connected to an ADP 
machine or network and it did no t have a fax connection.   
(ii) Certain HS documents 
61. Under the HS 2007, the scope of HS heading 8 443 has been broadened in order to cover 
MFMs previously covered by HS headings 8471 a nd 8517.  Heading 8443 now includes all printers, 
facsimile machines, photocopiers and digital copier s as well as MFMs.  Both the structure of HS 
heading 8443 and the HSEN to this heading c onfirm the differences between digital copying and 
photocopying.  
62. Furthermore, new Chapter Note 5(D) to Ch apter 84 under HS 2007 states that heading 8471 
does not cover "printers, copying machines, facsi mile machines, whether or not combined" when 
presented separately. By finding it necessary to e xpressly exclude MFMs from the scope of heading 
8471, this Note acknowledges that such MFMs were  properly classified in heading 8471 under the 
HS 96. 
2. As, such, the measures at issue violate Articles II:1(a) and II:1(b) of the GATT 1994  
63. Through the challenged measures as described above, the EC and its member States are 
imposing customs duties on certain MFMs, which is  inconsistent with their obligations under 
Articles II:1(a) and II:1(b) of the GATT 1994.   
IV. CONCLUSIONS 
64. For all the above reasons, TPKM requests that the Panel find that: 
(a) the EC's measures concerning flat panel di splays are inconsistent with the EC's 
obligations under Articles II:1(a) and II:1(b) of the GATT 1994; 
(b) the EC's measures concerning set-top boxes with a communication function are 
inconsistent with the EC's obligations under Articles II:1(a) and II:1(b) of the 
GATT 1994; 
(c) the EC's measures concerning set-top boxes with a communication function are 
inconsistent with Articles X:1 and X:2 of the GATT 1994; 
(d) the EC's measures concerning "input or output units" and facsimile machines are 
inconsistent with Articles II:1(a) and II:1(b) of the GATT 1994. WT/DS375/R 
WT/DS376/R WT/DS377/R 
Page C-12 
  
  ANNEX C-2 
 
EXECUTIVE SUMMARY OF THE ORAL STATEMENT BY  
CHINESE TAIPEI AT THE FIRST SUBSTANTIVE MEETING 
 
1. For the first time in the history of its WTO membership, the Separate Customs Territory of 
Taiwan, Penghu, Kinmen and Matsu ("TPKM") has seen itself obliged to lodge a WTO complaint.  It 
has taken this unprecedented step because of the im portance of the trade flows concerned as well as 
the manifest nature of the violations committed by the EC. 
2. As coordinated among complainants, TPKM in this opening statement will concentrate on 
one of these products, namely, FPD devices.  As fo r MFMs and STBs, TPKM supports what has been 
said by the United States and Japan in their opening statements. 
I. PRELIMINARY REMARKS 
3. On its face, this case is quite simple.  The qu estion before this Panel is whether the EC is 
entitled to exclude FPD devices from the scope of th e concession merely because they are capable of 
receiving and reproducing signals from both ADP machines and other sources (some of these FPD 
devices can even only reproduce signals from an ADP machine).  Indeed, under the contested 
measures, the mere capability of an FPD device bei ng connected to an apparatus other than an ADP 
machine will lead to the automatic exclusion of  that FPD device from the scope of the concession 
covering FPD devices for use with ITA products.  
4. The ECJ, the highest Court in the EC, in Kamino has held that the words "solely or 
principally" which determine whether a product can be considered to fall under HS subheading 
8471.60 cannot be read as requiring the exclusiv e use with an ADP m achine.  The ECJ in Kamino  
therefore confirms that the EC has no legal basis to exclude FPD devices from classification under HS 
subheading 8471.60 simply because such apparatus may al so be able to connect to a device other than 
an ADP machine, for instance, simply b ecause the FPD device has a DVI connector.  
5. The EC in its submission made some prelimin ary comments contending that TPKM failed to 
make a prima facie case with respect to FPD devices. None of these comments are correct. 
6. First, the EC seems to argue that it is  unaware of which product TPKM is precisely 
complaining about the treatment.  As stated in its submission, TPKM's complaint relates to the 
treatment given by the EC to all FPD devices whic h are capable of receiving and reproducing signals 
from ADP machines only, and from both ADP machin es and other apparatus.  The FPD devices at 
issue may use various technologies, such as LCD, plasma, OLED, etc, other than CRT technology.  
7. Secondly, TPKM has never alleged that the EC ob ligations flow directly from the ITA.  It is 
clear from its submission that TPKM considers that the EC has violated its WTO obligations by 
according treatment to the products at issue which is less favourable than that provided for in its 
Schedule. 
8. Thirdly, the fact that the EC has temporarily  suspended its customs duties on part of the 
products concerned by this dispute  does not remove its Article II GATT 1994 violation.  Indeed, such 
suspension is temporary, and conditional upon a numbe r of terms and conditions not included in the 
EC Schedule.  The EC has failed even to respond to this argument.  WT/DS375/R 
 WT/DS376/R 
 WT/DS377/R 
 Page C-13 
  
  9. Finally, the EC argues that FPD devices whic h are capable of receiving signals from ADP 
machines and other sources are not automatically excluded from the zero tariff treatment.  The EC 
therefore proposes that TPKM's claim cannot extend to  challenging the measures of the EC as such.  
However, in order to substantiate an "as such" claim, it is not necessary for the complainants to 
demonstrate that the measure at issue "always" lead s to a violation of the WTO covered agreements.  
It is sufficient to demonstrate that at least in so me respects the measure at issue will necessarily lead 
to such violation.  
II. ARGUMENTS 
10. The concession in the EC Schedul e covering FPD devices is twofold.  The first part of the 
concession is based on Attachment A to the ITA and provides for a zero tariff for a number of HS 
subheadings under which FPD devices could be classified , in particular, input or output units of ADP 
machines of subheading 8471.60. 
11. The EC also incorporated the products listed in  Attachment B to the ITA into its Schedule, 
including, among others, FPD devices.  For FPD devi ces covered by Attachment B and incorporated 
in the EC Schedule, TPKM submits that the Panel's in terpretation in this dispute should begin with the 
terms of the headnote contained in the EC Schedule.  This is because, in the headnote, the EC made 
the commitment that with respect to any product described in Attachment B, to the extent not 
specifically provided for in the Schedule, the customs duties on such product shall be bound and 
eliminated, wherever the product is classified. 
12. The meaning of the words "wherever the prod uct is classified" is both crucial and self-
explanatory.  Regardless of the specific heading or  subheading under which a particular product falls 
in the EC Schedule, any product meeting the d escription of FPD devices contained in the EC 
Schedule must be granted duty-free treatment, "wherever the product is classified".   
13. There is therefore no doubt that the 14 CN subheadings next to the description of FPD 
devices in the headnote in the EC Schedule are only illustrative, rather than exhaustive.  The EC's 
argument that its obligations with respect to FPD devices under Attachment B are only limited to 
those HS codes is incorrect.  Furthermore, in doing  so, the EC fails to give proper meaning to the 
words " wherever the product is classified ".  
A. A
TTACHMENT B 
14. It follows from the ordinary meaning that an FPD device is not limited to receiving signals 
from an ADP machine only.  The rest of the language in the concession as well as the context 
supports this conclusion. 
15. The product at issue is described as " for products falling within this agreement", it is clear 
that the concession requires that FPD devices be "for" products falling within the ITA.  The ordinary meaning of "for", as found in dictionaries, is ex tremely wide and covers many different possible 
situations.  In light of this, TPKM concludes th at FPD devices "for products falling within this 
agreement" should be interpreted as covering FPD devices which are capable of operating with or 
being incorporated in ITA products even though other uses may be possible. 
16. This conclusion is further supported by other c oncessions contained in the EC Schedule.  For 
instance, both the concession with respect to "proj ection type flat panel display units" and the 14 
subheadings next to the description of FPD devices  confirm that FPD devices are not excluded from WT/DS375/R 
WT/DS376/R WT/DS377/R 
Page C-14 
  
  those concessions on the mere ground that they are ab le to be connected to apparatus other than ADP 
machines. 
17. As required by the Panel and A ppellate Body in previous dis putes, the concessions at issue 
must be interpreted in the light of the object and purpose of the WTO Agreement and GATT 1994, 
which is, among other things, to further the expans ion of trade in goods and the substantial reduction 
of tariffs.  
18. In this regard, TPKM submits that any interp retation that excludes from the EC concession 
FPD devices which are capable of receiving signal s from both ADP machines and other sources, for 
instance because the FPD devices ha ve a DVI connector, is contrary to the objective of expanding 
world trade in IT products as shed light upon not only by the ITA, but also by the WTO Agreement and the GATT 1994. 
19. Finally, the EC tries to construct an argumen t by relying on the negotiating history of the 
ITA.  However, in the present case, references made  by the EC to the alleged negotiating history are 
partial and unconvincing.  TPKM does not see how tho se references can be used to clarify the scope 
of the concessions at issue. 
B. A
TTACHMENT A 
20. TPKM notes that the EC has not addressed its ar gument on Attachment A in its first written 
submission. 
21. TPKM submits, independently from the concession made with respect to "flat panel display 
devices" in the EC Schedule, that the concession made with respect to subheading 8471.60 also 
covers FPD devices capable of receiving signals  both from an ADP machine and other sources. 
22. The ordinary meaning of the term "output units " in subheading 8471.60 demonstrates that this 
term is very broad and does not  support the proposition that an FPD device covered by subheading 
8471.60 must be capable of receiving signals only from a computer system. 
23. This conclusion is supported by the HS 1996.  No te 5 (B) to Chapter 84 of this HS lays down 
the requirements to qualify as a unit of an ADP m achine.  Among others, Note 5 (B) requires that 
such unit must be of a kind solely or principally used  in an ADP system.  It is therefore sufficient that 
an FPD device is principally used with an ADP  machine to be classified under heading 8471, 
regardless of whether it is also capable of receiving signals from other sources.  Under the EC measures, however, any device capable of receiving signals from other sources (as well as some that 
cannot) is subject to duties. 
III. CONCLUSION 
24. In conclusion, TPKM considers that there can be no legal justification for the EC not to grant 
duty-free treatment to FPD devices which are capable of receiving signals from an ADP machine only or from both ADP machines and other apparatus. TPKM therefore maintains that, as such, the 
measures at issue violate Articles II:1(a) and II:1(b) of the GATT 1994.  WT/DS375/R 
 WT/DS376/R 
 WT/DS377/R 
 Page C-15 
  
 ANNEX C-3 
 
CLOSING ORAL STATEMENT BY  
CHINESE TAIPEI AT THE FIRST SUBSTANTIVE MEETING 
 
 
 Mr. Chairman, distinguished Members of the Panel.  
1. During the past three days, it has been obvious that the EC has failed to address the claims 
and arguments put forward by the co-complainants in this dispute.  
2. The EC has continuously attempted to reframe  the dispute as a dispute over the customs 
classification of products.  It is not.  The matter before  this panel is to which extent the EC's contested 
measures necessarily result in violation of Article II of the GATT 1994.  The difference is 
fundamental.  If the issue was one of classification, the exercise would be to properly apply the 
relevant rules of classification.  However, as this  dispute concerns the question whether the tariff 
treatment resulting from the EC measures is consis tent with the EC Schedule, it is necessary to 
examine the EC's concessions in accordance with the Vienna Convention on the Law of Treaties 
1969.  It is striking that while the complainants have analysed each of the concessions concerned 
starting from the ordinary meaning of the terms used, the EC simply fails to do so.  
3. We would like to submit – once again – that th e HS is clearly not relevant at all for the 
interpretation of those concessions that have been made by the EC pursuant to Attachment B to the 
ITA.  Actually, these concessions have been defi ned not by the HS but by product descriptions 
phrased in commercial terms.  And the EC Schedule provides that such products shall benefit from 
duty-free treatment "wherever [they] are classified".  
4. We note that the EC has kept alleging that it does not know what it is accused of; claiming a 
lack of clarity as regards both the identification of  the products and measures at issue.  Yet, as 
underlined by the Appellate Body in EC – Chicken Cuts , "the identification of the products at issue 
must flow from the specific measures identified in  the panel request.…In other words, it is the 
measure at issue that generally will define the product at issue."
1 
5. The co-complainants have clearly identified th e contested measures in our panel request.  
6. We would like to use one of the measures at i ssue, the CNEN, to demonstrate how products at 
issue are defined by the measures with respect to FPD devices.  According to the EC Schedule, all 
FPD devices for ADP machines shall enjoy duty-fr ee treatment.  However, the CNEN excludes from 
duty-free treatment all FPD devices which are capable  of receiving signals from apparatus other than 
an ADP machine or which can be connected to a video source other than an ADP machine or even 
simply because they have a DVI interface.   
I. FPDS 
7. We would like to add a few more words on the issue of FPD devices, more precisely, on the 
EC Schedule concerning "fla t panel display devices." 
8. The EC argued that the CN codes listed next to the Attachment B product description are 
exhaustive and define the full scope of the Attachme nt B concessions.  This interpretation is simply 
                                                      
1 Appellate Body Report, EC-Chicken Cuts , para. 167. WT/DS375/R 
WT/DS376/R WT/DS377/R 
Page C-16 
  
 not acceptable as it reduces to inutility the headnot e that provides expressly duty-free treatment for 
this concession wherever the product is classified.  
II. MFMS 
9. We agree with the closing statements made  by the co-complainants on MFMs. I would, 
however, like to add the following comments.  
10. Contrary to the EC submission and as already me ntioned above, the question to be resolved is 
not one of classification.  However, TPKM notes that  insofar as classification rules are relevant as 
context, the EC errs in its presentation of the appli cable classification rules, in some cases, even in 
flagrant contradiction with the rulings of the ECJ.  
11. In the case of MFMs with ADP connectivity and with a facsimile function, the EC classifies 
them under Heading 9009.12 whenever the copying speed exceeds 12 ppm.  Manifestly, the EC has 
provided no justification why an MFM with a copy ing speed which exceeds 12 ppm is automatically a 
photocopier. 
12. Unfortunately, the EC has completely failed to  address the above issues in either its First 
Written Submission or at the first substantive meeting.  
III. STBS 
13. TPKM also agrees and fully supports the closing remarks made by its co-complainants with 
regard to STBs.  TPKM would only like to add the following comment.  
14. The EC argued that STBs must be reviewed on a "case-by-case basis". However, the EC does 
not carry out such case-by-case analysis.  For instance,  any STB with a hard disk is excluded from the 
duty-free treatment and this is regardless of the cap acity of the hard disk.  The submission from the 
EC that some STBs with a hard disk are subject to duty free treatment is clearly not in conformity with the measures at issue a dopted by the EC itself.  
 Mr. Chairman, distinguished Members of the Panel, TPKM thanks you for your attention. 
 
 
  WT/DS375/R 
 WT/DS376/R 
 WT/DS377/R 
 Page C-17 
  
 ANNEX C-4 
 
EXECUTIVE SUMMARY OF THE SECOND WRITTEN SUBMISSION  
BY CHINESE TAIPEI 
 
I. HORIZONTAL ISSUES 
A. T
HE ITA 
1. The ITA is part of the "context" within the meaning of Article 31.2 (b) of the Vienna 
Convention  for the purposes of interpreting the EC Sche dule.  Indeed, the ITA is an "instrument 
which was made by one or more parties in connecti on with the conclusion of the treaty" and has been 
"accepted" by all WTO Members as an instrument related to the Schedule of Concessions. Moreover, 
the ITA is also relevant to determine the object  and purpose of the treaty for the purposes of this 
dispute. 
2. The EC agrees with the above but claims that complainants have arbitrarily selected some 
parts of the ITA, taken them in isolation and "i mported" them into the interpretative exercise 
concerning the EC Schedule. 
3. The EC's claim is erroneous. The analysis of the ITA as a whole clearly supports the 
overarching importance for the interpretation that the ITA's purpose is to achieve maximum freedom 
for world trade in IT products. It is the EC's overemphasis on point 3 of the Annex to the ITA 
concerning future negotiations that constitut es in fact a selective reading of the ITA. 
4. Furthermore, the documents submitted by the EC as constituting the negotiations of the ITA 
do not qualify either as "preparatory work" or as  any other forms of "supplementary means of 
interpretation" within the meaning of Article 32 of the Vienna Convention .  
5. Indeed, these documents are informal documents  exchanged among some of the participants 
to the ITA that have not been published or made av ailable to all the parties.  TPKM did not and does 
not have access to all the documents submitted by th e EC as being part of the "negotiating history" 
and therefore requests the Panel to refrain from using them to determine the interpretation of the EC's 
concessions. 
6. In any case, recourse to supplementary means of interpretation is only possible when 
"interpretation in the light of Article 31 leaves the meaning of a treaty provision ambiguous or 
obscure, or, in order to confirm the meaning r esulting from the application of the interpretation 
methods listed in Article 31."  This is not the cas e here.  The meaning of the concession as established 
pursuant to Article 31 of the Vienna Convention  is very clear, as it was detailed in TPKM's first 
written submission and second written submission. 
B. THE PRESENT DISPUTE IS ABOUT TARIFF TREATMENT AND NOT ABOUT CUSTOMS 
CLASSIFICATION  
7. That the present dispute deals with tariff treatment and not with customs classification has 
important practical effects. 
8. First, it means that rules of classification, in pa rticular the HS, are not central to this dispute 
and can at the most be relevant as part of the contex t only. Being part of the context, the HS is merely 
one element among others and is neither decisive  nor dispositive of the interpretative exercise. WT/DS375/R 
WT/DS376/R WT/DS377/R 
Page C-18 
  
 Moreover, it implies that the Panel should refra in from applying these rules automatically, for 
instance, GIR3(c). 
9. Second, it means that rules of customs classi fication do not have equal relevance when 
interpreting the concessions. Their relevance vari es depending on the concession concerned. In that 
respect, the HS is not relevant for the interpretati on of the concessions made by the EC pursuant to 
Attachment B to the ITA, given that such con cessions are based on product descriptions and not on 
HS headings. 
C. R
EQUIREMENTS TO SUCCEED WITH AN "AS SUCH " CLAIM  
10. First, when making an "as such" claim, the co mplaining party does not have to bring evidence 
concerning the application  of the measures being challenged, as underlined by the Appellate Body in 
US – Carbon Steel . The evidence will in the first place take th e form of the relevant legislation. It 
may, but need not, be supported by evidence of the application of such legislation. 
11. Second, in order to succeed with an "as such" cl aim, it is not necessary to demonstrate that the 
measures at issue will lead in all cases  or always  to a WTO inconsistent result. As underlined by the 
Panel in China – Auto Parts , it is sufficient that a specific aspect  or an element  of the criteria set out 
in the measures at issue necessarily leads to a violation of the WTO Agreements. 
D. ALL MEASURES BEING CHALLENGED ARE IN FORCE AND RELEVANT  
12. First, with respect to certain measures challenged,  the EC is claiming that they have lost their 
relevance since the CN codes indicated in these meas ures have changed with the entry into force of 
the CN 2007.  
13. This is not correct. Each of these measures is valid and has legal effect, and will only 
disappear from the EC legal order when they are expressly revoked by the EC Commission or expressly annulled by the ECJ. This is supported by the way in which the EC has dealt with modifications resulted from past changes to th e HS or the CN, for instance, the Commission 
Regulation (EC) No. 705/2205 that has expressly am ended and repealed certain regulations on the 
classification of goods in the CN. Furthermore, this is  consistent with the principle of legal certainty 
as acknowledged by the EC itself. 
14. Second, the EC seems to have argued that measures which are incompatible with the 
interpretation by the ECJ in the Kamino  and Kip cases have become invalid.  However, in these cases, 
the ECJ has not annulled any measure and such measur es are thus, as a matter of law, still in force and 
applicable.  The measures will only disappear from the EC legal system when they are expressly 
revoked by the EC Commission or expressly annulled by the ECJ. There is no such thing as implied annulment or annulment by analogy under EC Community law. 
15. Third, TPKM would like to clarify that, contrary to what the EC claims, CNEN are legally 
binding. The statement of the ECJ that "CNEN do not have legally binding force" refers to the fact 
that they cannot alter the scope of the CN but certainly not that custom s authorities are free to 
disregard them. This is supported by the following fact s:  first, BTIs cease to be valid where they are 
no longer compatible with the inte rpretation of the CN by reason of an amendment to the CNEN 
(Article 12(5) of the CCC);  second, the Chairman  of the Nomenclature Committee stated that "as 
soon as an opinion has been voted, member States ca n issue BTIs for the products concerned, even 
before the measure has been adopted by the Commi ssion and published in the Official Journal"; third, 
if member States do not follow CNEN and collect less customs duties as a result, the EC Commission  WT/DS375/R 
 WT/DS376/R 
 WT/DS377/R 
 Page C-19 
  
 is entitled to claim the difference in the member States' budget and retains the option of instituting 
proceedings against that member State for infringemen t of Article 10 of the EC Treaty.  As underlined 
by the EC in EC – Selected Customs Matters , CNEN are part of the "tools for ensuring a uniform 
classification practice within the EC". Finally, it must  be emphasized that the fact that CNEN cannot 
contradict the wording of the CN does not mean that, as the EC app ears to claim, customs authorities 
would be free to disregard a CNEN at its own initi ative when they consider that it contradicts the 
wording of the heading. A national authority will not disregard a CNEN, though contrary to the wording of a heading, until it has b een amended by the EC Commission. 
16. Furthermore, TPKM would like to underline that, in  light of the clarifications made by the 
Appellate Body in US – Corrosion-Resistant Steel , CNEN necessarily constitute "measures" that can 
be challenged "as such". 
E. I
NTERPRETATIVE ISSUES CONCERNING THE CONCESSIONS INCLUDED IN THE EC SCHEDULE  
17. First, through the headnote included in its Schedule, the EC committed to grant duty-free 
treatment to all products described in or for Attach ment B, wherever they are classified. The various 
CN codes identified by the EC at the time of implementing the ITA merely indicate where the EC thought the products concerned were falling in the CN. However, they do not "exhaust" the 
definitions included in the EC Schedule. The EC's in terpretation is contradicted by the text of the 
headnote, reducing it to inutility and further contradicted by the text of the ITA. 
18. Second, technological development does not have an impact on tariff treatment. It is TPKM's 
view that, while concessions are made at one point in time, they are not restricted, as the EC appears 
to submit it, to the products existing at that time. What is relevant is to determine whether a product, 
on the basis of its objective characteristics, falls with in the scope of the concessions interpreted on the 
basis of its ordinary meaning, context and object and purpose. As long as the product at issue meets 
the description of the product covered by the conc ession, it does not matter whether this product is 
technologically more advanced than the products ex isting at the time the concession was made. That 
product must receive the treatment offered by the concession. This is consistent with the position 
expressed by the panel in the GATT dispute concerning "Greek Increase in Bound Duty." 
II. BY IMPOSING CUSTOMS DUTIES ON CERTAIN FLAT PANEL DISPLAY 
DEVICES, THE EC VIOLATES ARTICLES  II:1(A) AND II:1(B) OF THE GATT 1994 
A. G
ENERAL ISSUES  
1. The product at issue has been defined in a sufficiently precise manner 
19. The EC complains about the alleged lack of preci se definition of the products at issue. In 
addition to the fact that TPKM has provided a preci se definition of the product at issue, TPKM would 
like to underline that the Appellate Body clarified in EC – Chicken Cuts  that it is the measure at issue 
that will generally define the product at issue. In th is dispute, the complainants have clearly identified 
the contested measures that accordingly ha ve defined the products at issue. 
20. The EC's confusion seems to flow from a wrong understanding of the claims being made in 
this dispute. The products at issue are not limit ed to those mentioned as examples such as LCD 
monitors with DVI. The products at issue are those defined by the measures at issue and the claims 
are being made with respect to certain aspects of the measures that necessarily lead to a WTO inconsistent outcome. WT/DS375/R 
WT/DS376/R WT/DS377/R 
Page C-20 
  
 2. The obligations in the EC Schedule have been precisely identified 
21. The EC's claim about TPKM's failure to id entify the concession concerned and where it is 
provided for is incorrect. TPKM's first written submission has clearly identified the precise content of 
the concession. Moreover, contrary to the EC's clai m, TPKM has also made clear that the CN codes 
indicated by the EC are illustrative only. They may be used as "context" but in no way determine the 
scope of the concession that is based on the prod uct description. Finally, TPKM disagrees with the 
EC's arguments that when the EC concession is in  its Schedule and identified with a given HS/CN 
code, some differences in its interpretation may be allowed. This position amounts to stating that 
WTO Members have agreed that there could be difference between WTO Members in the scope of 
concessions which are identically worded, de pending on the codes listed alongside the product 
description. This is contrary to the word ing of the ITA and the EC's concession.  
3. The EC has misrepresented the complainants' claim 
22. The EC has misrepresented th e complainants' claim. TPKM has not submitted that the 
presence of a DVI connector determines whether an LCD monitor must benefit from duty-free 
treatment. On the contrary, TPKM has argued th at the presence of a DVI cannot automatically 
exclude any FPD device from duty-free treatment. This is actually the effect of the measures at issue.   
23. The EC argues that it is incorrect to claim th at the EC will impose duties based on the mere 
fact that the FPD device "might" be used with someth ing other than an ADP machine or the fact that it 
is merely capable of being connected to a non-ADP machine. The EC refers to item 1 in Regulation 
(EC) No. 2171/2005 to support its argument. However,  item 1 in the said Regulation is not subject to 
this dispute. Furthermore, the product described in item 1 can only be used together with an ADP 
machine. It is not able to reproduce correctly signa ls received from any external source other than an 
ADP machine.  
4. The FPD devices at issue are neither multifunctional LCD monitors nor new products 
24. TPKM's complaint is not limited to "multifunc tional monitors" but covers all FPD devices 
which can receive and reproduce signals from an ADP machine and this is so regardless of whether 
the FPD device can also receive and reproduce signals from other sources. 
25. The fact that a product with additional or enhanced features that did not exist at the time the 
concession was made does not make that product a "new " product, and is not a reason to exclude that 
product from the scope of the concession.  
5. The measures at issue 
26. There are five measures at issue. It shoul d be noted that (i) Council Regulation (EC) 
No. 179/2009 referred to by the EC as replaci ng Council Regulation (EC) No. 493/2005 merely 
establishes a new duty suspension which remains at th e discretion of the EC and is limited in time;  
(ii) Commission Regulations (EC) No. 634/2005 and No. 2171/2005 have not lost their relevance as 
claimed by the EC since they have not been repeal ed or amended by any other regulation or annulled 
by the ECJ;  (iii) the EC's statement that Council Regulation (EC) No. 2658/87 as last amended 
applies a zero duty to monitors of the "kind solely or  principally used in an automatic data processing 
system of heading 8471" fails to take into account that FPD devices are subject to a zero percent duty regardless of the sole or principal use with an ADP machine pursuant to the EC concession based on 
Attachment B of the ITA; and (iv) CNEN are in fact legally binding.  WT/DS375/R 
 WT/DS376/R 
 WT/DS377/R 
 Page C-21 
  
 B. I
NTERPRETATION OF THE CONCESSIONS  
1. Ordinary meaning 
(a) EC concession for "input or output units" of ADP machines 
27. TPKM has made a prima facie  case that the products at issue meet the ordinary meaning of 
the concession concerning heading 8471.60 with respect  to input or output units of ADP machines. It 
is thus up to the EC to demonstrate that the prod ucts at issue do not fall within that concession as it 
claims. However, the EC has simply failed to demonstrate this. 
28. The EC is also wrong when saying that the prod ucts at issue could also fall within subheading 
8528.21/22 or subheading 8528.12/13. An FPD for use solely or principally with an ADP machine 
undoubtedly falls under CN code 8471.60.90 as an output  unit of an ADP machine. This is confirmed 
by Chapter Note 5(B). 
(b) Concession made with respect to "flat panel display devices" 
29. Contrary to the EC that failed to review any definition of the words of the concession, TPKM 
has carefully reviewed the ordinary meaning of th e concession, and in particular of the term "flat 
panel display devices… for products falling within th is agreement." There is nothing in the ordinary 
meaning of these terms that would imply a limitation such as receiving signals from ADP machines only. 
30. Contrary to the EC's suggestion, the use of technical dictionaries from this decade does not 
necessarily invalidate its relevance. Indeed, the descr iptions of "display" and "panel display" in both 
editions of 1993 and 2003 of the McGraw-Hill Dictionary of Scientific and Technical Terms  are 
exactly identical. 
2. Context 
(a) Tariff headings indicated in the EC Schedule regarding its concession on "flat panel display 
devices" 
31. The CN codes identified by the EC next to the product description of "flat panel display 
devices for products falling within this agreement" ma y be analyzed as part of the "context." Contrary 
to the EC's approach that focuses on a single CN code among the 14 identified in the list, a proper 
analysis should examine all 14 CN codes. By fo cusing on one CN code, the EC has conveniently 
avoided examining the reference to subheading 8531.20 where certain FPD devices can also be 
classified. 
32. The EC submits that the definition of "monitors " in another product description is "by far the 
most important contextual relevance" and seeks to st rengthen its position by referring to the fact that 
the definition of "monitors" expressly states that  "the agreement does not, therefore, cover 
televisions." However, this statem ent is tied to the CRT monitor only and cannot be read into other 
concessions concerning, in particular, "flat panel display devices." 
33. Regarding the "exclusion of video monitors a nd televisions," whether a device on which one 
can watch television or video is covered by a particul ar concession depends on the terms of that 
concession. If a device is a "flat panel display de vice for products falling within the ITA," it is 
covered irrespective of whether or not it incorporates a TV tuner.  There is simply no basis to read WT/DS375/R 
WT/DS376/R WT/DS377/R 
Page C-22 
  
 additional limitations into the concession for flat pa nel display devices that do not exist in the text of 
that concession, and doing so would be utterly co ntrary to the principles of treaty interpretation 
reflected in the Vienna Convention.  
(b) Schedules of other ITA participants 
34. As part of the "context," the EC also refers to  the Schedules of other pa rticipants. However, it 
is not the tariff classification of the FPD devices un der the subheadings identified in the list that is 
relevant but the duty treatment. Moreover, the EC ignores that heading 8531 is also identified by a 
large number of participants and that subheading covers FPD devices, whether or not they can be 
connected to a source other than an ADP machine. 
3. The Harmonized System 
35. The EC elaborated on the HS at length and concluded that the HSEN to headings 8471 and 
8528 require both the exclusive use with an AD P machine and the sole presence of connectors 
characteristic of data-processing systems to classi fy FPD devices under heading 8471. The EC alleges 
that these were precisely the requirements that th e EC used to classify FPD devices under heading 
8471. TPKM would like to make the following comments regarding the EC's analysis of the HS in 
this regard. 
36. First, the HS may be used as "context" only for the analysis of the EC concessions made by 
the EC pursuant to Attachment A to the ITA. Inde ed, for the concession made with respect to "flat 
panel display devices for products falling within this  agreement" pursuant to Attachment B to the 
ITA, the duty-free treatment must apply regardless of  whether the flat panel display devices are solely 
or principally for use with an ADP machine and regardless of their "principal function." 
37. Second, even if the HS1996 were to have any relevance as context for the analysis of the EC 
concession for FPD devices, the HSEN are not part of the HS1996. They must be ignored and cannot 
be given any interpretative value where they are in  direct conflict with binding HS section or chapter 
notes or with the wording of the HS headings.  
38. Third, even if the tariff classification of FPD devices had any relevance for the current 
dispute, the EC is incorrectly applying GIR 3(c). Indeed, the application of this GIR does not lead 
classification of FPD devices under heading 8528 as th e EC claims but under heading 8531. The EC 
has conveniently ignored that Heading 8531 is also applicable and if classification had to take place 
under the last heading in numerical order, heading 8531 would apply. 
4. The Kamino  case 
39. The Kamino  judgment indirectly clarifies that the EC has violated its concession covering 
input or output units of subheading 8471.60. Indeed , it confirms that the EC incorrectly excludes FPD 
devices from the scope of subheading 8471.60 on the sole ground that they can be connected to a 
source other than an ADP machine, or due to the pr esence of a particular type of connector. It is 
therefore surprising that the EC still tries to suppor t its positions with this ruling. The conclusions 
drawn by the EC from the Kamino  case are incorrect. 
40. It is not necessary for the EC to explain how it will proceed to classify FPD devices following 
Kamino . Since FPD devices must be subject to duty-free treatment wherever they are classified, such 
classification exercise is not relevant. Moreover, if the EC intends to implement the 
Kamino  judgment 
on the basis of the criteria in the HSEN, it is likel y to continue infringing the obligations undertaken  WT/DS375/R 
 WT/DS376/R 
 WT/DS377/R 
 Page C-23 
  
 in its Schedule with respect to FPD devices. Fina lly, for "multifunctional monitors," the EC's position 
that, it is impossible to determine the principal use or function and GIR3(c) is  to be applied in all 
cases, will similarly lead to a violation of the EC obligations under its Schedule. In any case, the EC's 
position ignores that it should lead to a classifica tion under heading 8531 or 9013 which are duty-free. 
5. Object and purpose 
41. TPKM's arguments focus on the object and purpose of the GATT 1994. First, concessions 
should be interpreted "so as to fu rther the general objective of the e xpansion of trade in goods and the 
substantial reduction of tariffs" even if "such an  interpretation is limited by the condition that 
arrangements entered into by Members be recipr ocal and mutually advantageous." That the 
concessions are to be interpreted so as to further the general objective of th e expansion of trade is 
supported by the object and purpose of the ITA itself.  Second, concessions should be interpreted so as 
to promote the objective of security and predictabilit y. In that respect, the EC's interpretation that 
results in excluding products from the scope of the concession because they would be "new" runs 
against the objectives of security and predictab ility. Likewise, the argument that the EC's duty 
suspension, which is temporary and uncertain, c ould "save" the measures at issue from violating 
Article II of the GATT also contradicts th e objects of security and predictability. 
6. Supplementary means of interpretation 
(a) The classification practice of ITA participants is irrelevant 
42. The "classification" practice of the other ITA participants regarding "flat panel display 
devices for products falling within this agreement" is irrelevant since the concession has been made 
"wherever the product is classified." 
(b) The negotiating history is irrelevant 
43. The documents submitted by the EC as be ing the "negotiations" do not constitute 
"supplementary means" of interpretation and can th erefore not be used in the framework of this 
dispute. In addition, recourse to Article 32 of the Vienna Convention is not necessary in this dispute 
since the scope of the concession is clear pursuant to the sole use of the interpretative tools of 
Article 31 of the Vienna Convention. 
C. T
HE EC'S MEASURES VIOLATE ARTICLE II:1( A) AND II:1( B) OF THE GATT  1994 
44. Through the measures at issue, the EC is impos ing customs duties on certain FPDs instead of 
providing duty-free treatment as required by the concessions made by the EC with respect to "flat 
panel display devices for products falling within th e ITA" and with respect to HS heading 8471.60 
"input or output units" of ADP machines. Thereby, the EC violates Article II:1(a) and II:1(b) of the GATT 1994.  
45. Although the EC has been providing duty suspension for certain FPD devices, it does not 
"save" the measures at issue from being inconsiste nt with Article II:1(a) and II:1(b) of the GATT 
1994, as the EC submits it. 
46. First, duty suspension is temporary.  Whethe r a duty suspension will be renewed depends on a 
number of factors including economic factors. The EC thus necessarily violates Article II:1(b) of the GATT 1994 since it makes the benefit of a zero cu stoms duty dependent on a number of terms and 
conditions not set forth in its Schedule. WT/DS375/R 
WT/DS376/R WT/DS377/R 
Page C-24 
  
 47. Second, not all FPD devices that should have received duty-free treatment benefit from the 
duty suspension. Under Regulation (EC) No. 179/2009, the duty suspension is not applicable to colour monitors having a screen size of more than 22 inches or  an aspect ratio different from 1:1, 4:3, 5:4 or 
16:10. 
48. Finally, Regulation (EC) No. 179/2009 that provides for a duty suspension on certain FPD 
devices until 31 December 2010 was published on 7 Marc h 2009 and entered into force on that date.  
Since the previous duty suspension expired on 31 December 2008, it means that between 
1 January 2009 and 6 March 2009, there was no duty suspension in force until the new Regulation 
was published and provided for its retroactive applica tion as of 1 January 2009.  This system therefore 
creates considerable uncertainty for traders. 
III. BY IMPOSING CUSTOMS DUTIES ON CERTAIN SET-TOP BOXES WHICH 
HAVE A COMMUNICATION FUNCTION, THE EC VIOLATES ARTICLE II:1(A) AND II:1(B) OF THE GATT 1994 
A. G
ENERAL ISSUES  
1. The obligations in the EC Schedule have been well identified 
49. Contrary to the EC's claim, TPKM has clearly identified the EC concession at stake and noted 
that such concession is included in the EC Schedul e itself and not in the ITA. Furthermore, the 
headnote is central since it expressly provides that dut y-free treatment is to be granted to all products 
described in Attachment B wherever the product is  classified. The codes that  the EC notified to the 
WTO in accordance with paragraph 2 of the Annex to the ITA only indicate where in the CN the EC 
considered the product was classified at that time . These codes thus in no way limit the scope of the 
concession made with respect to a specific product description. 
2. Identification of the product at issue and "as such" claims 
50. The EC argues that the complainants failed to describe the products at issue. However, let 
along that TPKM has clearly identified the products at  issue, the EC has mis sed the point. The claim 
is not about tariff treatment of a specific model of STBs but about several criteria used by the EC to 
determine the tariff treatment of a category of products, namely STBs which have a communication 
function.  TPKM has underlined that several aspects of  the measures at issue ar e inconsistent with the 
EC's obligations under the WTO. In other words,  the EC excludes the following STBs which have a 
communication function from duty-free treatment thr ough the measures at issue:  (i) STBs which 
incorporate a device performing a recording or re producing function (for example, a hard disk or 
DVD drive);  (ii) STBs incorporating a device "performing a similar function to that of a modem but which do not modulate or demodulate signals" such as "ISDN-, WLAN- or Ethernet devices"; (iii) STBs that do not have a "built-in modem" but  an external modem; and (iv) STBs which do not 
incorporate a video tuner. 
51. Furthermore, TPKM would like to emphasize that it is irrelevant whether in some cases the 
application of the measures may lead to a WTO cons istent outcome. Indeed, in order to succeed with 
an "as such" claim, it is sufficient to demonstrate th at any aspect of the criteria set out in the measures 
challenged will necessarily lead to a violation of  the EC's obligations under its Schedule, and 
consequently Article II of the GATT 1994.  WT/DS375/R 
 WT/DS376/R 
 WT/DS377/R 
 Page C-25 
  
 B. I
NTERPRETATION OF THE CONCESSION  
1. Ordinary meaning 
(a) STBs incorporating a hard disk or DVD recorder 
52. The analysis of the ordinary meaning of th e terms of the concession demonstrates that it 
covers STBs which have a communication function even  if they have additional functions. Actually, 
the EC also acknowledged this when stating that  the product covered by the concession "cannot 
endlessly  assume other features or technical elements."  The EC thereby recognizes that the coverage 
of the concession permits products with additional features or func tionalities. As long as the product 
meets the description of a "set top box which h as a communication function," it must receive duty-
free treatment, regardless of any additional feature or functionalities it may have. 
53. The EC seems to be aware of the weakness of its position and tries to strengthen it by 
developing a rather farfetched theory about the mean ing of the words "which have" instead of "with." 
However, if the drafters of the ITA intended to limit the functions of the product covered by the 
concession to communication functions only, they would have added the word "solely" or the 
equivalent in the text of that c oncession rather than using the word "w hich" instead of "with." It is a 
well-established principle of treaty interpretation that the interpreters cannot read into the text words 
that are not there. 
(b) Set top boxes and modems 
54. In accordance with the definition of "modem" as  included in the relevant dictionaries, the 
Ethernet, ISDN and WLAN modems all modulate and demodulate. They connect a set top box to a 
communication line and convert signals produced by one type of device to a form compatible with another. Devices that operate through an Ethernet  or network connection, a WLAN connection or an 
ISDN modem are modems. STBs equipped with such m odems therefore fall within the scope of the 
concession concerning "set top boxes wh ich have a communication function." 
2. Surrounding circumstances 
55. In an attempt to strengthen its position, the EC has imported the analysis of "the set top boxes 
available on the market in 1996" and "the descrip tions used during the negotiations" as "surrounding 
circumstances" into its analysis of the ordinary meaning of its concession concerning "set top boxes which have a communication function." However, these elements could at most be examined as "supplementary means" of interpre tation within the meaning of Arti cle 32 of the Vienna Convention. 
It is actually very doubtful whether these elements qualify as "supplementary means of 
interpretation." 
3. Context 
(a) Tariff lines 
56. The CN codes notified by the EC to the WTO do not determine the scope of the concessions. 
They are merely indications of where in th e CN the EC viewed the STBs which have a 
communication function were included at that time.  WT/DS375/R 
WT/DS376/R WT/DS377/R 
Page C-26 
  
 (b) Schedules of other ITA participants 
57. The table showing the codes notified by the IT A participants as to where they classify STBs 
which have a communication function is irrelevant in  determining the scope of the EC concession. It 
merely supports the view that when the ITA negotia tions concluded, there were no universally agreed 
classification headings for STBs which have a communi cation function.  That is precisely the reason 
why the commitment has been made  with respect to a product descr iption wherever classified and 
regardless of its classification by individual participants. 
C. T
HE EC'S MEASURES AT ISSUE VIOLATE ARTICLE II:1( A) AND II:1( B) OF THE GATT  1994 
58. The EC repeatedly claims that "it does not exclude any STBs from duty-free treatment due to 
the presence of a hard disk or other apparatus. " Yet, the EC has not provided any evidence of 
instances where an STB with a hard  disk has been accorded duty-free treatment by the EC.  In other 
words, as expressly stated in the CNEN, the mere presence of a hard disk or DVD drive in an STB 
which has a communication function leads to the ex clusion of that STB from duty-free treatment. By 
doing so, the EC violates its obligations under Article II:1(a) and II:1(b) of the GATT 1994. 
IV. BY NOT PUBLISHING THE AMENDED EN RELATED TO THE TARIFFS OF 
CERTAIN STBS FOR MORE THAN ONE YEAR AND BY APPLYING CUSTOMS DUTIES ON CERTAIN STBS PRIOR TO THE OFFICIAL PUBLICATION OF THE MEASURES, THE EC VIOLATES ARTICLE X:1 AND X:2 OF THE GATT 1994 
A. A
RTICLE X:1 OF THE GATT  1994 
59. Contrary to the EC's claim, the CNEN constitute "laws, regulations, judicial decision or 
administrative rulings of general application" and th erefore fall within the scope of Article X:1 of the 
GATT 1994. Indeed, CNEN are legally binding. In  any case, Article X:1 of the GATT 1994 has a 
broad scope that would cover CNEN even if th e CNEN were not found to be legally binding. 
60. Article X:1 of the GATT does not refer to acts that have been "adopted" but acts that are 
"made effective".  From the moment the measure, i.e., the CNEN, was voted upon by the Customs 
Code Committee in April 2007, it began to be app lied by the customs authorities of the member 
States. It was then that  CNEN were "made effective." It was also then that the EC should have 
promptly published the CNEN accordingly. The fact that the CNEN was made effective since the vote 
of the Customs Code Committee in April 2007 but not published until May 2008 is clearly 
inconsistent with the requirement of prompt publi cation as provided in Article X:1 of the GATT 1994. 
B. ARTICLE X:2 OF THE GATT  1994 
61. The EC first tried to confuse the panel by reframing the dispute as one concerning not the 
CNEN but "the votes and discussions in the CCCE."  However, TPKM's claim is about the CNEN that have been "enforced" but not yet published. Th us, the measure within the meaning of Article X:2 
of the GATT is the CNEN as voted upon by the Cust oms Code Committee. The fact that the CNEN 
concerned have not been "adopted" is not relevant for the purposes of this provision as long as they 
have been "enforced." 
62. Contrary to the EC's claim, CNEN constitute "m easures" within the meaning of Article X:2 as 
they constitute "acts setting forth rules or norms th at are intended to have general and prospective 
application." CNEN constitute "measures" even  if they have not been "formally" adopted.  WT/DS375/R 
 WT/DS376/R 
 WT/DS377/R 
 Page C-27 
  
 63. The EC simply ignores the evidence brought by  TPKM and the United States which shows 
that customs authorities started applying the CNEN that had been voted upon by the Customs Code 
Committee but not yet officially published. The sole de fence of the EC is that the reference to the not-
yet published CNEN in the BTIs is "for information" only since the "member States base their 
classification decisions on CN and the interpretativ e rules thereto."  However, the EC's argument 
amounts to deprive CNEN of any existence.  The EC appears to argue that CNEN do not constitute 
"measures." Nonetheless, as TPKM noted above, the issue is not to determine what the exact status of 
the CNEN is within the EC legal system. The fact that customs authorities of the member States have 
relied on CNEN either to issue BTIs or to take other customs decisions shows that the CNEN had 
been enforced and affected traders. 
V. BY IMPOSING CUSTOMS DUTIES ON CERTAIN MULTIFUNCTIONAL 
MACHINES, THE EC VIOLATES ARTICLE II:1(A) AND II:1(B) OF THE GATT 1994 
A. G
ENERAL ISSUES  
1. The products at issue 
64. The EC has had no difficulties in identifying the products at issue as comprising the so-called 
"ADP MFMs" and "NON-ADP MFMs," even though th e EC has made a number of statements about 
the product at issue that are factually incorrect. 
2. The measures at issue 
65. Contrary to what the EC claims, with the ex ception of the CCCE statement, the measures at 
issue are all still valid and continue to form part of the EC legal system. 
3. The issue 
66. The EC erroneously presents the issue as being one about customs classification while it is a 
tariff treatment dispute. It is sufficient for the co mplainants to demonstrate that the EC measures 
necessarily result in certain MFMs being subject to customs duties when they are actually entitled to a 
zero tariff under the applicable concessions. The Pane l will thus first have to determine whether the 
MFMs at issue are properly covered by the c oncessions contained in HS subheading 8471.60 or 
8517.21. TPKM notes that the EC failed to examine anywhere the ordinary meaning of the wording of 
the concessions covering subheadings  8471.60 or 8517.21. Instead, the EC embarked immediately on 
a classification exercise, applying the rules of the HS in order to demonstrate that the MFMs are 
correctly classified under heading 9009 instead of under heading 8471 or 8517.  TPKM submits that 
in doing so the EC skipped the most important step in the interpretative exerci se, i.e., to analyze, in 
the light of the principles set out in the Vienna Convention , the ordinary meaning of the wording of 
the concessions covering subheading 8471.60 and subheading 8517.21 and whether such wording 
covers the MFMs at issue.  
B. ADP  MFM S 
67. The EC has not examined the wording or even the scope of  the concessions under Subheading 
8471.60 for "printers" (CN code 8471 60 40) and "others" (CN code 8471 60 90) or for "facsimile machines" (CN code 8517 21 00) but immediately argues that digital copying is a form of photocopying. According to the EC, " unless it can be shown that the copying function was 
'secondary,' " ADP MFMs would fall outside the concession for subheading 8471.60. " If the copying WT/DS375/R 
WT/DS376/R WT/DS377/R 
Page C-28 
  
 function was equivalent ," they would fall under subheading 9009 12 pursuant to GIR 3. The EC refers 
to the judgment of the ECJ in Kip. However, it is puzzling how the EC  can base its entire defence on a 
ruling from its own highest court, which actually c oncluded that the automatic exclusion of MFMs 
with a copying function from the scope of s ubheading 8471 and their classification under heading 
9009 violates EC customs law.  
68. First, an ADP MFM will fall under subheading 8471.60 provided it is "of a kind solely or 
principally used in an ADP system." Given that ADP MFMs are by definition connectable to an ADP 
system and consist of a scanner module and a printing module, it is clear that as a general rule such 
apparatus will be of a kind solely or principally u sed in an ADP system and would therefore generally 
fall under heading 8471. 
69. Second, in the rare cases where the copying function is equivalent to the printing and the 
scanning functions, classification cannot take place on th e basis of Note 5(B) to Chapter 84. It is 
necessary to examine whether the ADP MFM cannot be classified on the basis of GIR 3(b) which 
classifies products on the basis of the component whic h confers the essential character to the product. 
Since printer, scanner and computer modules are clearly classifiable under heading 8471, it is manifest that the exercise w ill necessarily result in a classifica tion under heading 8471 unless the 
value and role of the various components would be  so similar that no component can be identified 
conferring the essential character to the apparatus.  Needless to say, given the preponderance of the 
printer module consisting of the print engine a nd the print controller in the overall value and 
functioning of an ADP MFM, it will only be in very rare cases that the printer module will not confer 
the essential character to the MFM. 
1. Digital copying is not a form of photocopying 
70. The EC has avoided analyzing the wording of the concession covering subheading 8471 and 
has focused instead on the concession covering headi ng 9009. This approach presupposes that digital 
copying is actually a form of photocopying.  
71. TPKM submits that such reasoning is not supp orted by the facts: (i) analogue photocopying 
and digital copying are different even if light is used in both processes; (ii) although both systems use an "indirect process," in the case of digital copying, it is the printing process that is "indirect," not a 
"photocopying process." To qualify as an indirect  photocopying process, it is necessary that the 
original image is projected on the light sensitive surfa ce of the drum and that afterwards the projected 
original image is transferred from the drum to the pa per. That is not the case with digital copying; (iii) 
the indiscriminate use in commercial literature of the terms "copier" and "photocopier" is not an 
acceptable interpretative tool under Article 31 or 32 of the Vienna Convention ; (iv) the EC ignores 
that analogue photocopier and digital copier ar e fundamentally different technologies; (v) the 
reference to Regulation (EC) No. 1165/95 and the Rank Xerox  ruling is not convincing as the 
apparatus concerned by these measures cannot connect  to an ADP machine or to a network; and 
(vi) in Council Regulation (EC) No. 2380/95 of 2 October 1995 that imposed a definitive anti-
dumping duty on imports of plain paper photocopiers originating in Japan, the EC distinguished 
"digital copying" from "photo copying" as being two completely different processes. 
72. As for the alleged US practice of classifying stand alone digital copiers under heading 9009, 
TPKM fails to see how this can support the EC pos ition. TPKM considers that the HS2007 and its 
negotiating history are equally of mi nimal relevance in this dispute.  WT/DS375/R 
 WT/DS376/R 
 WT/DS377/R 
 Page C-29 
  
 2. ADP MFMs fall within the scope of the concession for subheading 8471.60 
73. The main argument submitted by the EC to justify the exclusion of ADP MFMs from the 
concession covering subheading 8471.60 relies on Note 5 to Chapter 84.  The EC claims that the 
requirement of sole or principal use in Note 5(B) is  not met and that Note 5(D) is not applicable since 
the MFM are not "printers".  However, the follo wing should be noted. First, ADP MFMs fulfill the 
requirements in Note 5(B)(a) since they are of a kind principally used in an ADP system. The fact that 
the MFMs may operate independently from an ADP system as a stand alone digital copier does not 
invalidate its principal use with ADP machines. Se cond, Note 5(D) confirms that ADP MFMs fall 
under the scope of the concession for "output units" and "printers" under subh eading 8471.60.  Such 
would be the case regardless of whether the sole or pr incipal use test is met. The meaning of "printer" 
is not limited to single function machines only. Third, the broad scope of the concession for 8471.60 actually confirms that the MFMs at issue ar e included within the scope of the concession. 
C. NON-ADP
 MFM S 
74. The EC claims that these MFMs correctly  fall under the scope of the concession in 
subheading 9009.12 since their copying functionality is similar to that of stand alone digital copiers, 
and their copying function also qualifies as photocopying. 
75. However, the EC's claim is without merit for the following reasons: (i) "photocopying" is 
different from "digital copying"; (ii) correct application of GIR 3(b) would actually result in a classification under another heading different from 9009; ( iii) it is incorrect that the criterion of pages-
per-minute copying speed was already used in Commission Regulations (EC) No. 2184/97 and No. 
517/99; and (iv) the duty-free treatment granted to  some non-ADP MFMs with a copying speed not 
exceeding 12 pages per minute (8443 31 10) is simply a fulfillment of the EC's obligation. It is the EC 
that has arbitrarily excluded from the duty-free treatment those MFMs with a facsimile function and a copying speed exceeding 12 pages per minute. 
VI. CONCLUSIONS 
76. For all the reasons set forth in its First Writte n Submission and for all the reasons set forth 
above in this Submission, TPKM respectfully requests the Panel to find that: 
(a) the EC's measures concerning flat panel disp lay devices are inconsistent with the EC's 
obligations under Articles II:1(a) and II:1(b) of the GATT 1994; 
(b) the EC's measures concerning set-top boxes which have a communication function 
are inconsistent with the EC's obligations  under Articles II:1(a) and II:1(b) of the 
GATT 1994; 
(c) the EC's measures concerning set-top boxes which have a communication function 
are inconsistent with Articles X:1 and X:2 of the GATT 1994; 
(d) the EC's measures concerning multifunctiona l machines are inconsistent with the 
EC's obligations under Article II: 1(a) and II:1(b) of the GATT 1994 
77. Accordingly, TPKM respectfully requests that the Panel recommend, pursuant to Article 19.1 
of the DSU, that the EC and its member States br ing the measures into conformity with the covered 
agreements. WT/DS375/R 
WT/DS376/R WT/DS377/R 
Page C-30 
  
 ANNEX C-5 
 
EXECUTIVE SUMMARY OF THE ORAL STATEMENT BY CHINESE TAIPEI  
AT THE SECOND SUBSTANTIVE MEETING 
 
1. Mr. Chairman, distinguished members of the Panel, the Separate Customs Territory of 
Taiwan, Penghu, Kinmen and Matsu ("TPKM") would lik e to thank you and the Secretariat for your 
hard works that have already been done and for your ongoing efforts in connection with this dispute.  
2. TPKM is pleased to have this opportunity t oday to address some new arguments developed 
by the EC in its second written submission.  In this oral statement, TPKM will first address the issues with respect to the tariff treatment  accorded by the EC to Flat Panel Display devices (FPD devices).  
TPKM will then address the main concerns raised by  the EC's arguments with respect to Set-top 
Boxes (STBs) and Multifunctional Machines (MFMs).   
3. At the outset, we would like to respectfully remind the Panel that the crux of this dispute is 
about tariff treatment rather than customs classifica tion or something else. The core question awaiting 
the Panel is whether the EC's measur es at issue in regard to three ITA products have resulted in tariff 
treatment that is inconsistent with its Schedule of  Concessions and Articles II:1(a) and II:1(b) of the 
GATT 1994.  By applying the principles of treaty interpretation as reflected in the Vienna Convention, TPKM has demonstrated how the three pr oducts at issue fall within the ordinary meaning 
of the terms of the EC's concessions when read in context and in the light of the object and purpose of 
the GATT 1994.  TPKM has shown, and will show the Pa nel again that, because of the EC's measures 
at issue, those products have been denied duty-free treatment that they are entitled to.  
I. FLAT PANEL DISPLAY DEVICES 
4. On the FPD issues, it is striking how the EC has tried to distract the Panel's attention from the 
core issues involved throughout this dispute.  Instead  of addressing the core issues, the EC has chosen 
to mount its defense almost exclusively based on pr ocedural arguments.  In particular, the EC has 
continuously claimed that the complainants have fa iled to make a prima facie case because they have 
failed to identify with sufficient precision the produ cts at issue, the concessions at issue and now, in 
its second written submission, also the claims at issue and the scope of those claims. 
5. In this oral statement, TPKM would like to systematically address the arguments put forward 
by the EC and demonstrate why they are without merit. 
A. T
HE CLAIMS AT ISSUE HAVE BEEN PRECIS ELY IDENTIFIED BY THE COMPLAINANTS  
6. It has always been clear since the very beginning of this dispute that all the complainants have 
made two different claims with respect to FPD devices. Both claims relate to a breach of Article II:1(a) and II:1(b) of the GATT 1994 but conc ern the EC's two different concessions that were 
made in its Schedule in order to implement the ITA.   The first one is the concession made by the EC 
pursuant to Attachment B to the ITA with respect  to "flat panel display devices for products falling 
within the ITA."  The second one is the concession ma de by the EC pursuant to Attachment A to the 
ITA with respect to "input or output units" of ADP machines under the heading 8471.60.   
7. The EC appears to be surprised by the fact th at the two concessions ha ve different scopes.  
However, this is how the EC Schedule is structur ed, and this structure reflects the two different 
commitments undertaken by the EC pursuant to Att achment A and Attachment B to the ITA.  We  WT/DS375/R 
 WT/DS376/R 
 WT/DS377/R 
 Page C-31 
  
 have already highlighted that each concession has a different scope in separate sections of our First 
Written Submission and, in particular, in the an alysis of the scope of each of the concessions.
1  
8. The concession concerning heading 8471.60 that  covers "input or output units" of ADP 
machines must be read in its context and in par ticular in accordance with Note 5(B) to Chapter 84 
which prescribes that "input or output units" must be "o f a kind solely or principally used in an [ADP] 
system."  However, there is no such limitation as "sole or principal use" in the concession concerning 
"flat panel display devices for prod ucts falling within the ITA."  In fact, this latter concession, as 
properly interpreted on the basis of its ordinary meani ng, in its context, and in light of the object and 
purpose of the GATT 1994, does not contain any limitation that the FPD devices, in order to be 
covered, must be for use "principally" or "solely" with ADP machines. 
9. The fact that both concessions have different scopes is another reason why both claims must 
be examined in turn by the panel in this dis pute and make its rulings accordingly.  Indeed, for 
example, an FPD device that falls under one of the measures at issue may not be covered by the 
concession concerning "input or output unit" of ADP machines but nonetheless be covered by the 
concession concerning "flat panel display devices fo r products falling within this Agreement."  
10. In the following paragraphs, we will analyze in more detail the scope of each concession 
made by the EC with respect to FPD devices.  
11. The first concession has been made by the EC pur suant to Attachment B with respect to "flat 
panel display devices for products falling within the ITA."  This concession has been granted 
"wherever the product is classified."  Thus, it is tota lly irrelevant how the EC or other participants 
classify FPD devices for products falling within the ITA.   To the extent that they are "for products 
falling within this Agreement," they are entitled to  duty-free treatment.  For an FPD device to qualify 
as one that is "for products falling within the ITA," it must be capable of operating with an ADP machine.  "Capable of operating" does not mean , however, "simply connected".  The FPD devices 
must be capable of receiving and properly repr oducing signals received from an ADP machine in 
order to fall within that concession. 
12. The EC claims that the conclusion of the compla inants that it impermissibly subjects to duties 
any flat panel display device that is capable of ope rating with a device other than an ADP machine is 
contradicted by the express exclusion of "televisions" from the concession concerning CRT "monitors."
2  According to the EC, televisions are excl uded from the scope of the whole agreement.  
13. However, the exclusion of "televisions" is found only in the concession concerning CRT 
"monitors" and that exclusion cannot be imported into  the concession of "flat panel display devices."  
The fact that there is no express exclusion in the concession concerning "flat panel display devices" must actually mean something.  As the Appellate Body underlined in Japan – Alcoholic Beverages , 
"omission must have some meaning."
3  In EC – Bed Linen ,4 the Appellate Body considered that the 
presence of exclusion in the chapeau to Article 2.2. 2 of the Anti-Dumping Agreement led it to believe 
that where there is no such express exclusion elsewhe re in the same Article, no such exclusion should 
be implied.  Similarly, the absence of an express exclusion in the concession concerning "flat panel display devices" while an express exclusion is provided in the concession concerning CRT "monitors" means that in the first concession, no such exclusi on should be implied.  If the authors wanted to 
                                                     
 
1 See TPKM first written submission, para s. 216 – 306 and paras. 307 – 348. 
2 EC second written submission, para. 30. 
3 Appellate Body Report, Japan – Alcoholic Beverages , p. 19. 
4 Appellate Body Report, EC – Bed Linen , para. 83. WT/DS375/R 
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Page C-32 
  
 apply such exclusion to FPD devices, they wo uld have expressly included it in that product 
description. 
14. Furthermore, it should be emphasized that the description in the list of products under the 
concession for "computers" expressly mentions that those products cover ADP machines irrespective 
of "whether or not they are able to receive and process with the assistance of central processing unit 
telephony signals, television signals, or other analogu e or digitally processed audio or video signals."  
Thus, the fact that an apparatus can receive and pr ocess television signals is not in itself a criterion 
that would exclude it from the scope of the concessions made pursuant to the ITA.   
15. The EC has repeatedly questioned whether, in the complainants' view, flat panel televisions 
are covered by the concessions.  First, TPKM believes that in order to answer this question, the EC 
will need to first clarify what it considers to be a "television".  Indeed, what really matters is the 
criterion that the FPD devices are "for" products falling within the ITA and thus including FPD 
devices for ADP machines.  To the extent that the FPD devices can receive and reproduce signals 
from an ADP machine properly, they are covered by the EC's concessions.  
16. The second concession has been made by the EC  with respect to HS heading 8471.60 as 
"input or output units" of ADP machines.  The ordinary meaning of "input or output units" of ADP machines does not support the proposition that an  FPD covered by subheading 8471.60 must be 
capable of receiving signals "only from" a computer system in order to be covered.  In accordance 
with the existing jurisprudence of the Appellate B ody, it appears that the Harmonized System may be 
relevant as part of the context to interpret the c oncession.  Note 5(B) to Chapter 84, which is an 
integral part of the HS, refers to input or output un its that are "of a kind solely or principally used in 
an ADP system."  In light of the foregoing, it is clear that FPD devices cannot be excluded from the scope of the concession concerning "input or output  units" of ADP machines on the sole ground that 
the FPD devices can also reproduce signals from a sour ce other than an ADP machine.  Note 5(B) to 
Chapter 84 does not require "exclusive" use.  A prin cipal use in an ADP system is sufficient for an 
FPD device to be classified under Heading 8471.  However, by requiring that the FPD devices must 
be for "sole" use with ADP machines to receive duty-free treatment, the measures at issue violate the 
EC's concessions with respect to "input or output units" of ADP machines. 
17. The EC has attempted to rely on the Explanator y Notes ("EN") to the HS to Chapter 84, in 
particular Point I(D), to justify the criteria u sed in the measures challenged in this dispute.
5  T h e  
HSEN provides that "separately presented units" falling under heading 8471 differ from video 
monitors and television receivers under heading 8528 in different wa ys.  Such differences include the 
notion that "they are capable of accepting a signal only from the central processing unit of an ADP 
machine," the notion that they "are not able to  reproduce a colour image from a composite video 
signal," and so on. According to the EC, it has si mply been applying the criteria contained in the 
HSEN to distinguish between display un its of ADP machines and video monitors. 
18. However, the EN of the HS do not form part of  the HS and therefore cannot be part of the 
"context" for the purpose of determining the scope of the concession concerning subheading 8471.60.  
Moreover, to the extent that the EN contradict the wording of the HS itself, including its section and chapter notes, they must be disregarded.  In the present dispute, by referring to ADP monitors as 
"accepting a signal only from an ADP machine," the EN mani festly contradicts the wording of 
Note 5(B) to Chapter 84 that refers to input or output units "of a kind principally or solely  for use in 
an ADP system" and therefore must be ignored. 
                                                     
 
5 EC first written submission, paras. 156 – 159.  WT/DS375/R 
 WT/DS376/R 
 WT/DS377/R 
 Page C-33 
  
 19. Finally, TPKM would like to address the remark  of the EC that the wide scope of the 
concession concerning flat panel display devices for products falling within the ITA  " l e a d s  t o  a  
situation where it is entirely unclear how the cha llenged measures come within the scope of each of 
the two claims."
6 
20. TPKM does not understand the EC's assertion of the alleged lack of clarity.  There are five 
measures at issue which have been precisely identif ied in the Panel Request and in the first written 
submission.7  All these measures are in breach of the EC's concessions made pursuant to Attachment 
A and Attachment B to the ITA with respect to FPD devices.  
B. THE PRODUCTS AT ISSUE AS DEFINED BY TH E MEASURES AT ISSUE HAVE BEEN CLEARLY 
IDENTIFIED  
21. Now we would like to turn to the issue of th e "products". The EC has continuously claimed 
that there is a lack of precision in the definition of  the products at issue.  However, the products at 
issue are those subject to duties under the measures at  issue.  They have been clearly identified by 
TPKM as "any flat panel display device capabl e of receiving and reproducing signals from ADP 
machines only or from ADP machines and other apparatus."8 The products at issue are therefore not 
limited to, as the EC claims, the "LCD monitors with DVI."9  This point had also been precisely made 
in TPKM's First Written Submission when it was clarif ying that "the FPDs most affected by the EC 
measures are LCD displays with a DVI connector" "although not limited to such types of FPDs."10  
22. Claims are made not with respect to products but  with respect to specific measures.   We have 
repeatedly and clearly identified the measures at issue with precision.  The Panel's task is to determine 
whether or not the measures at issue are inconsistent with Article II:1(a) and II:1(b) of the GATT 1994.  The Panel has to assess whether by excluding from duty-free treatment flat panel display devices on the basis of a number of criteria the EC has breached the concessions it has made pursuant to the ITA.  The focus for the Panel is the criteria as listed in the measures at issue that are 
used by the EC to determine the classification and,  as a result, the duty treatment, for FPD devices.  
23. The EN to CN code 8528.59.90 specifies, by re ference to the EN to CN code 8528.41.00, a 
list of characteristics that, if present, would ex clude the FPD device from the scope of the duty-free 
CN code.  The presence of a DVI is just one of the criteria listed there.  There are other criteria such as the "connection to a video source," the presence of an "HDMI connector," and so forth.  To the 
extent that these criteria lead to the exclusion from duty-free treatment of FPD devices that are for 
products falling within the ITA, they are incons istent with the concessions made by the EC.  
24. The EC has tried to create confusion by stating that the products at issue must somehow be 
different depending on the claim concerned.  Indeed, the EC is asking what products come within the 
scope of each claim.
11  In fact, the products at issue are th e products falling within the measures at 
issue.  However, since both concessions have a di fferent scope whereby the scope of the concession 
concerning "flat panel disp lay devices for products falling within the ITA" is wider than the more 
limited scope of the concession covering subheadi ng 8471.60, the finding of inconsistency may be 
different with respect to each concession.  In othe r words, the mere fact that an FPD does not fall 
                                                      
6 EC second written submission, para. 31. 
7 TPKM first written submission, paras .66 – 89. 
8 TPKM oral statement at the first subs tantive meeting of the Panel, para. 13. 
9 EC second written submission, para. 35. 
10 TPKM first written submission, para. 12. 
11 EC second written submission, para. 33 et seq . WT/DS375/R 
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Page C-34 
  
 within the scope of the concession covering input or output units of ADP machines of subheading 
8471.60, does not mean that it is also excluded fro m the concession relating to "flat panel display 
devices for products falling within the ITA."  
C. T
HE MEASURES AT ISSUE HAVE BEEN CLEARLY IDENTIFIED  
25. Among the five measures at issue, there is in th e first place the Combined Nomenclature.  It is 
correct that, at the first glance,  the CN2009 seems to respect the concession made by the EC with 
regard to Attachment A's "input or output unit" of ADP machines given that there is a specific 
heading, namely CN code 8528.51.00 that covers "oth er monitors – of a kind solely or principally 
used in automatic data pro cessing system of heading 8471." 
26. However, if read in combination with the CN EN, it leads to an interpretation of the CN2009 
that would exclude FPD devices of a kind principa lly used in ADP systems under heading 8471 from 
duty-free treatment.  Such exclusion would be so simply because the CNEN re quires exclusive use in 
an ADP system and the absence of a DVI connector.  This is inconsistent with the concessions made 
by the EC pursuant to Attachment A to the ITA. 
27. Furthermore, FPD devices which are of a kind principally used in ADP systems are clearly 
also "flat panel display devices for products falling within the ITA."  Since the duty-free treatment shall be granted to such FPD devices "wherever th ey are classified," it is irrelevant where such 
products are classified in the CN. 
28. As far as the CNEN are concerned, the EN  to codes 8528.51.00, 8528.59.10 and 8528.59.90 
require the Panel's attention as well as the EN to codes 8528.41.00 and from 8528.49.35 to 
8528.49.99.  The EN to code 8528.51.00 that covers monitors provides that "the explanatory notes to 
subheading 8528.41.00 apply mutatis mutandis ."  The EC is now claiming that the word "mutatis 
mutandis" "do not incorporate all of the CNEN to heading 8528.41.00 into the CNEN to heading 8528.51.00."
12  However, except the paragraph that expressl y refers to the specific characteristics of 
monitors of the CRT type, the rest of the CNEN ar e directly applicable to the flat monitors, in 
particular, the list of the criteria that exclude mon itors from the scope of the headings with duty-free 
treatment. 
29. Again, the EC is trying to create confusion by  alleging that it is not clear whether the CNEN 
fall within the scope of the claim made pursuant to Attachment B.  There is no ambiguity on this issue: the criteria listed in the CNEN must be revi ewed by the Panel with respect to both concessions.   
30. Finally, there are two Classification Regulations of the EC that are being challenged.  Again, 
the WTO consistency of these regulations has been  challenged with respect to both concessions.  
D. T
HE KAMINO JUDGMENT DOES NOT REMOVE WTO  INCONSISTENCY OF THE EC'S MEASURES  
31. TPKM has referred to and continues to refer to Kamino  only to show how the highest court in 
the EC, the ECJ, has interpreted the CN with regard  to flat monitors and how the ECJ came to the 
conclusion that monitors cannot be excluded from the scope of CN code 8471.60.90 solely because 
they are capable of displaying signals coming both from an ADP machine and from other sources or solely because they are equipped with certain types of connectors such as a DVI connector.  
                                                     
 
12 EC second written submission, para. 51.  WT/DS375/R 
 WT/DS376/R 
 WT/DS377/R 
 Page C-35 
  
 32. The findings in Kamino  may be informative since the judgment underlines that some aspects 
of the measures being challenged in the present disput e are contradictory to the CN.  In other words, 
the judgment in Kamino  confirms that, even if only from an EC classification perspective, the EC 
incorrectly excludes FPD devices from the scope of  subheading 8471.60 solely because they can be 
connected to a source other than an ADP machine or due to the presence of a particular type of 
connector. 
1. The Kamino  judgment has not modified the measures at issue and has not removed the 
WTO inconsistency of the EC measures 
33. The Kamino  judgment has neither modified nor annulled the measures at issue.  Those 
measures at issue were all published after the facts concerned in the Kamino  dispute, and thus were 
not reviewed by the court in that case.  Therefore, the Kamino  judgment has not removed the WTO 
inconsistency of the EC measures.  At most, the Kamino  judgment has made it clear that the EC 
measures requiring exclusive use in an ADP system before an FPD can be classified under subheading 
8471.60 are legally wrong under EC customs law.  By  logical reasoning, the EC's measures requiring 
exclusive use of the FPD devices in ADP systems ha ve resulted in an illegal exclusion of these FPD 
devices from the scope of the con cession under subheading 8471.60.  Kamino  has not resulted in any 
automatic substitution of the illegal EC meas ures with new WTO-consistent measures.  
34. The ECJ has only dealt with the interpretation of the CN that existed in 2004.  It has not ruled 
on the validity of any of the Classification Regulati ons.  For such regulations to disappear from the 
EC legal order, they must either be amended or repealed by the EC Commission or expressly annulled 
by the ECJ.  Under the current circumstances, these Classification Regulations are still valid and 
legally applicable despite the judgment of the ECJ in Kamino .  
35. The same holds true for the CNEN which was not examined by the ECJ in Kamino and 
therefore remains in existence.  As acknowledged by  the EC itself, the CNEN must be amended or 
repealed following Kamino .
13 
36. Unlike what the EC seems to want others to believe, Kamino  has not solved the issues before 
this Panel.  It is also clear from the EC memb er States' repeated requests for guidance addressed 
directly to the EC Commission.  Recent meetings  of the EC's Customs Code Committee confirmed 
that member States are still waiting for common guida nce on correct interpretation and application of 
the principles contained in Kamino . 14  The EC itself also acknowledged this when stating that "in 
order to ensure legal certainty, the EC has already initiated a revi ew process for identifying whether 
some adjustments to the notes may be needed."15  While what the EC will do remains uncertain, one 
thing is for sure, i.e., the Kamino has not saved the EC from breaching its concessions and relevant WTO obligations.   
                                                     
 
13 EC first written submission, para. 168. 
14 See Exhibit TPKM-88. In the Customs Code Committee’s meeting of 22 to 29 April 2009, the 
following was reported with respect to the ruling in Kamino : "some Member States asked for guidance on the 
correct interpretation and application of the principles established by the ruling. They further asked whether 
issuance of BTI and replies to requests for reimbursement should be suspended awaiting the above clarification. The Chair explained that the Commission services are cu rrently reflecting on the way to implement the Court 
judgment and that a debate is expected to take place at  the next Committee meeting." Interestingly, no debate 
took place on which amendment to the CNEN would be n ecessary at the subsequent meeting of the Customs 
Code Committee, contrary to what was announced in the minutes quoted above. 
15 EC first written submission, para. 168. WT/DS375/R 
WT/DS376/R WT/DS377/R 
Page C-36 
  
 2. The criteria to be used in the alleged ca se-by-case analysis of the EC would not 
necessarily remove the WTO inconsistency 
37. The EC claims that, following Kamino , "to decide whether a given monitor is or is not used 
'principally' in an ADP system requi res inherently a case-by-case analysis."
16  Even if this were the 
case, the so-called "case-by-case analysis" is curr ently being made on the basis of the criteria 
contained in the HSEN, the CNEN and in the Cl assification Regulations.  This practice has not 
changed even after the Kamino judgment.  The EC has also faile d to bring evidence of BTIs or 
customs decisions issued after Kamino  that can demonstrate the application of duty-free treatment to, 
e.g., FPD devices equipped with a DVI.  
38. Even if the EC modifies the CNEN and the classification regulations in order to implement 
Kamino , it remains uncertain how it will a pply its "case-by–case" analysis."  Kamino  provides certain 
criteria to be used in such a case-by-case analysis in its paragraphs 59 and 60.  In case the EC would 
use these criteria17 and would require these criteria to be met cumulatively, a case-by-case analysis is 
unlikely to remove the WTO violation.  Indeed, such  an approach would again lead to the exclusion 
from duty-free treatment of FPD devices that are covered by the concessions of the EC as examined above. 
II. SET-TOP BOXES WHICH HAVE A COMMUNICATION FUNCTION 
39. Now we would like to turn to i ssues with respect to Set-top boxes.  According to the EC, in 
order to succeed with an "as such" claim, it is necessary to demonstrate that the measures in question 
result in the imposition of duties with respect to a given product model or a certain category of 
products.
18  Under the EC's theory,19 complainants must identify the product category by identifying 
the "totality of the objective characteristics" of those products20 somehow similarly to a product 
description included in a classification regulation. 
40. The EC simply missed the point.  The measure at issue, i.e., the CNEN, contains certain 
criteria that, if present in a STB, would automatically  exclude an STB covered by the EC's concession 
from the scope of duty-free treatment.  To the extent  that complainants have demonstrated that the 
application of these criteria necessarily leads to  a WTO-inconsistent outcome, they have succeeded 
with their "as such" claims.  As the complainants  have successfully demonstrated that STBs which 
have a communication function would be automatically excluded from the scope of duty-free heading because they include, inter alia , a hard disk or DVD drive is incons istent with the EC Schedule, they 
have made their case. 
41. Once again, in its second written submission, the EC claims that in any case CNEN are not 
binding and that the criteria used in the CN EN do not have the mandatory power that the 
complainants ascribed to them.
21  This is not correct.  Has the EC given any example in which 
                                                      
16 EC first written submission, para. 166. 
17 See EC first written submission, para 166. The EC may use these criteria in order to consider as 
decisive "the objective technical characteristics as laid  down in the Explanatory Notes relating to heading 8471 
of the HS, in particular in points 1 to 5 of Part On e Chapter I(D)." The criteria contained in the HSEN to 
heading 8471 stipulate for instan ce that an ADP monitor may not incorporate an audio circuit. See Exhibit 
TPKM-89. 
18 EC second written submission, para. 66. 
19 See EC second written submission, para. 68, for an example, according to the EC’s theory, it is not 
sufficient to describe a category of products such as STBs with a hard disk or DVD drive. 
20 EC second written submission, para. 67. 
21 EC second written submission, para. 69.  WT/DS375/R 
 WT/DS376/R 
 WT/DS377/R 
 Page C-37 
  
 customs authorities have given duty-free treatment to  an STB which has a hard disk?  No!  Indeed, 
customs authorities have consistently classified STBs in accordance with the mandatory criteria 
contained in the CNEN since the vote of the Customs Code Committee on this issue. 
42. As to the interpretation of the concession, th e only textual argument the EC continues to 
assert relates to the use of the word s "which have" in the concession.  According to the EC, the phrase 
"which have" differs from the te rm "with" and means "which only have."  However, "which have" 
and "with" do not have the different meanings th e EC ascribes to them.  TPKM does not understand 
why the words "which have" should somehow be interpreted as "which only have." 
43. Furthermore, the EC also used the same word  "with" when modifying its own Schedule in 
2000.  The EC added in the list of codes indicat ed next to the product description concerning STBs 
which have a communication function, a CN code that covers "[a]pparatus with a microprocessor-
based device incorporating a modem for gainin g access to the Internet, and having a function of 
interactive information exchange, capable of  receiving television signals ('set-top boxes with 
communication function')."
22  If there were a difference between the terms "which have" and "with", 
why would the EC have used the word "with" in its CN code 8528.12.91?  This simply shows that 
there is no difference of meaning as alleged by the EC between the two terms.  
44. The EC defends itself by arguing that the wording "set top boxes with a communication 
function" does not form part of its Schedule.  Alle gedly, only the code itself would be part of the 
Schedule.  This argument is unacceptable.  As a general rule, when a concession is defined in a 
Schedule by reference to a specific CN code, the descr iption attached to this code also forms part of 
the concession.  In the present dispute, however, wh ere concessions have been granted pursuant to 
Attachment B, TPKM considers the concession as be ing defined by the product description alone. 
45. The EC's arguments are self-contradictory.  Ind eed, by stating that "the notification neither 
introduced a separate narrative d escription into its Schedule nor modified the existing narrative 
description,"23 the EC simply admits that the concession is determined by the product description and 
not by the codes listed next to it.  
46. Furthermore, the EC notes that the CN codes indicated next to the product description 
constitute "context" for the interp retation of the narrative description.  As previously noted, TPKM 
agrees with this view to a certain degree, but does not  agree that this context can be used to "exhaust" 
the narrative description.  
47. On the basis of the principles of  treaty interpretation as reflected  in the Vienna Convention, it 
is necessary to interpret the concession on the basis of  its ordinary meaning in the light of its context 
and of the object and purpose of the treaty.  The or dinary meaning of the concession, namely "set top 
boxes which have a communication function," is cl ear and does not exclude from its scope set top 
boxes because they have an additional function su ch as a recording or a reproducing function or 
because they are equipped with certain types of modems.  The analysis of the context, in particular of 
the CN codes indicated by the EC next to th e product description, confirms this conclusion.24  
48. In its analysis of the CN codes as "context," the EC merely notes that three CN codes have 
been initially notified by the EC: 8517.50.90, 851 7.80.90 and 8525.20.99 and that no codes under 
heading 8521 or 8528 were notified.  The EC app ears to argue that STBs which have a recording or 
                                                      
22 CN code 8528.12.91. 
23 EC second written submission, para. 80. 
24 EC first written submission, paras. 239 – 241. WT/DS375/R 
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Page C-38 
  
 reproducing function must necessarily be classified  under heading 8521 or 8528.  Therefore, the EC 
further argues that since these headings were not indicated among the codes listed next to the product 
description, the EC did not intend such products to be covered by the concession.  
49. With respect to the EC's arguments, TPKM would like to provide the Panel with the 
following observations.  First, the EC's argument s uggests that the concession is  limited to the codes, 
when in fact it covers products "wherever classified ."  Even as a matter of classification, it fails to 
take into account that heading 8525, which is one of the codes listed, cove rs transmission apparatus 
"whether or not incorporating reception apparatus or sound recording or reproducing apparatus."  
Second, the EC intentionally ignored in its analysis  the fourth CN code notified by the EC to the 
WTO in 2000, namely CN code 8528.12.91, and which is one of the codes listed next to the product 
description.  Third, these codes do not contain an y wording which would support the EC's position 
that STBs including certain types of modems woul d be excluded from the scope of the concession.  
Thus, a careful analysis of the CN codes, as re quested by the EC itself, actually supports the 
complainants' view in this case. 
III. CLAIMS RELATING TO ARTICLE X OF THE GATT 1994 
50. Finally, TPKM would like to add a few words on the EC's defense regarding its Article X 
claims.  
51. The entire EC's defense consists of argument s that the CNEN do not constitute "measures" 
either under EC law or under WTO law because they have not officially  been adopted by the EC 
Commission.   However, even if the CNEN has not been formally adopted within the EC legal 
system, this is not relevant for WTO disput e purposes.  As the Appellate Body noted in US – OCTG  
regarding the status of the Special Policy Bulletin  (SPB), the fact "that the SPB is not a legal 
instrument under US law" "is not relevant to the question before us."
25  "The issue is not whether the 
SPB is a legal instrument within the domestic legal system of the US, but rather, whether the SPB is a 
measure that may be challenged within the WTO."26  As the Appellate Body emphasized in that case, 
if it provides administrative guidance and creates  expectations among the public and among private 
actors, it constitutes a "measure".  This is also th e case of CNEN which have been voted upon by the 
Customs Code Committee even if they have not ye t been formally adopted by the EC Commission.  
To the extent that they already have been enfo rced before being published officially, this is 
inconsistent with Article X:2 of the GATT.  
IV. THE EC CONTINUES TO IGNORE TH E WORDING OF THE CONCESSION 
COVERING MULTIFUNCTIONAL MACHINES 
52. In its second written submission, the EC once ag ain erroneously approached the question of 
whether the tariff treatment applied to MFMs is consistent with the concession covering HS 
subheading 8471.60 as a classification dispute.  The EC started by saying that ADP MFMs are " prima 
facie  classifiable under both HS96 9009 12 and HS96 8471 60" (emphasis added).  Therefore, the EC 
further argued that it is necessary "to determine, on a case-by-case basis and having regard to the applicable HS rules addressing specifically this type  of situation (i.e., GIR 3) whether each kind of 
ADP MFMs is covered by the concession for HS 9009 12 or by the concession for HS96 8471 60."
27  
                                                      
25 Appellate Body Report, US – OCTG,  para. 187 
26 Id. 
27 EC second written submission, para. 101.  WT/DS375/R 
 WT/DS376/R 
 WT/DS377/R 
 Page C-39 
  
 The EC asserted that "in accordance with GIR 1, th e classification analysis must begin by looking at 
the terms of the HS96 heading 9009"
28 and blames the complainants for having failed to do so.   
53. The EC – once again – disregards the nature of th e current dispute.  This is not a classification 
exercise.  The issue is not to determine whethe r ADP MFMs are properly classified in Heading 8471 
or 9009.  The issue is whether the tariff treatment cu rrently applied is consistent with the concession 
made by the EC, in particular with respect to the concession covering HS s ubheading 8471 60.  The 
EC continues to avoid the meaning of the wordin g of the concession covering subheading 8471 60.  
Instead, the EC began its analysis with the word ing of subheading 9009 12, which it considers as an 
equally relevant classification option.   
54. In order to justify that Heading 9009 is an op tion, the EC needs to demonstrate that digital 
copiers are in fact "photocopying apparatus".  TPKM has already developed several arguments 
proving the contrary and will not repeat them here .  TPKM will limit its comments to the following 
issues raised by the EC.   
55. The EC argues that the technical differences between digital copiers and traditional 
photocopiers are not relevant and that the issue "i s not whether both types of photocopier operate in 
identical fashion."29  TPKM strongly disagrees with this view .  TPKM believes that, in view of the 
clear wording of the subheading, the technical diffe rences are relevant and important to determine the 
scope of the concession concerning photocopiers unde r subheading 9009.12.  The analysis of the 
ordinary meaning of the words of that concession clea rly excludes from its scope digital copiers.  This 
is further supported by the HSEN which the EC tries to put aside by claiming that there are "non-
binding" and "obsolete."30  It is strange that the EC claims th e HSEN are "obsolete" while part of it 
has been included in the revised EN to the HS2007 that clearly distinguishes between "photocopiers" 
and "digital copiers."  Should WCO Members have considered digital copiers as being equal to 
photocopiers, why didn't they use the word "digital photocopiers"? 
56. Finally, TPKM would like to address the EC's remarks on how the complainants classify 
MFMs.  TPKM would like to respectfully remind the Pa nel that it is irrelevant to this dispute how 
TPKM or other Members classify certain products that  deserve duty-free treatment.  In any event, 
TPKM has granted duty-free treatment to ADP MFMs wherever they are classified. 
57. Last but not the least, TPKM would like to respond to what the EC asserted this morning that 
we made an alleged "new claim" with respect to MFMs.  That was simply not true.  Contrary to the 
EC's assertion, TPKM did not rais e a new claim in relation to the products allegedly covered by CN 
code 8443.32.91, and TPKM did not ask the Panel to rule with respect to this specific CN code or 
make specific findings with respect to products classified thereunder.  The EC's assertion was 
unfortunately a misleading statement.   
58. TPKM's and the other complainants' claim regard ing MFMs was set out in the panel request.  
This request covers the treatment given to MF Ms under the EC measures as defined in the panel 
request.  The CCT (Council Regulation (EEC) No. 2658/ 87, as amended) is one of the measures listed 
in the panel request.  MFMs are defined in footnote 15 of the request which provides: 
"machines which perform two or more of th e functions of printing, copying, or 
facsimile transmission, capable of connecting to an automatic data processing 
                                                      
28 EC second written submission, para. 104 (emphasis added). 
29 EC second written submission, para. 107. 
30 EC second written submission, para. 116. WT/DS375/R 
WT/DS376/R WT/DS377/R 
Page C-40 
  
 machine or to a network (including devices commercially known as MFPs 
(multifunctional printers), other 'input or out put units' of 'automatic data processing 
machines' and 'facsimile machines')."
31 
59. The products described by CN code 8443.32.91 are described in identical terms as those 
described in CN code 8443.31.91, namely, "[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 automatic data-processing machine or to a network. "  
60. Products of CN code 8443 31.91 and 8443.32.91, on the basis of their product description, 
would therefore appear to have identical physi cal characteristics: a scanner, a printing module and 
computer connectivity.   
61. The description in CN code 8443.32.91 covers, in  TPKM's view, input units for an automatic 
data processing machine, such as scanners, which al so have a copying function.  Since other "input 
units of automatic data processing machines" are specifically mentioned in the panel request, TPKM 
considers that products of CN code 8443.32.91 are cl early included in the scope  of the claim.  They 
are multifunctional input units for an ADP machine and are different from the so-called stand-alone 
digital copiers of CN code 8443.39. 10 which have no computer connectiv ity.  They also do not have a 
facsimile function.  
62. We take note that the EC considers that no pr oducts meeting this description actually exist 
and would therefore invite the EC to clarify why this tariff line was included in the CCT and which 
products it intends to cover.  Mani festly, there would be no need for ADP connectivity if this heading 
would only relate to single function digital copiers.    
V. CONCLUSIONS 
63. In conclusion, throughout this dispute, the EC a ppears to have tried to evading from engaging 
the main issues raised by the co mplainants, i.e., a proper analysis of the scope of each concession 
concerned on the basis of the principles of treaty in terpretation as reflected in the Vienna Convention.  
As far as FPDs and STBs are concerned, the EC has focused instead on developing procedural 
arguments alleging confusions about the claims, th e concessions, and so on.  With respect to MFMs, 
the EC has attempted to deviate from the core is sues by addressing the complainants' claim as a pure 
classification exercise.  TPKM is confident that the Panel will ignore these procedural tactics and 
confirm that the EC's measures at issue are inco nsistent with its Schedule of Concessions and 
Articles II:1(a), II:1(b) as well as Article X of  the GATT 1994, and recommend that the EC and its 
member States bring their measures into conformity. 
64. Mr. Chairman, distinguished members of the Panel, TPKM would like to thank you and the 
Secretariat again and would be pleased to answer your questions.  
 
_______________ 
 
 
 
                                                      
31 Request for the Establishment of a Panel, EC and Its Member States – Tariff Treatment of Certain 
Information Technology Products , WT/DS375/8, WT/DS376/8 and WT/DS377/6.