WT/DS375/R 
 WT/DS376/R 
 WT/DS377/R 
 Page E-1 
  
  ANNEX E 
 
ARGUMENTS OF THE THIRD PARTIES 
 
CONTENTS PAGE 
E-1 Oral statement by Australia at the first substantive meeting E-2 
E-2 Executive Summary of the third party submission by China E-6 
E-3 Oral statement by China at the first substantive meeting E-8 
E-4 Executive Summary of the third party submission by Costa Rica E-10 
E-5 Oral statement by Costa Rica at the first substantive meeting E-13 
E-6 Oral statement by Hong Kong, Chin a at the first substantive meeting E-16 
E-7 Oral statement by India at the first substantive meeting E-18 
E-8 Executive Summary of the third party submission by Korea E-20 
E-9 Executive Summary of the third party submission by the Philippines E-22 
E-10 Executive Summary of the oral statemen t by the Philippines at the first 
substantive meeting E-24 
E-11 Executive Summary of the third party submission by Singapore E-26 
E-12 Executive Summary of the oral statement by Singapore at the first 
substantive meeting E-29 
E-13 Oral statement by Thailand at the first substantive meeting E-31 
E-14 Executive Summary of the third party submission by Turkey E-33 
E-15 Oral statement by Turkey at the first substantive meeting E-35 
 
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  ANNEX E-1 
 
ORAL STATEMENT BY AUSTRALIA  
AT THE FIRST SUBSTANTIVE MEETING 
 
I. INTRODUCTION 
1. Chair, Members of the Panel, Parties and Thir d Parties, Australia welcomes this opportunity 
to present its oral statement today in open hearing. 
2. This dispute centres on the interpretation of the European Communities (EC) WTO Schedule 
of Concessions, as modified pursuant to the Ministerial Declaration on Trade in Information 
Technology Products (ITA).
1  
3. As a general remark, Australia emphasises that the correct interpretation of Members' 
Schedules of Concessions (Schedules) is fundamen tal to the maintenance of the security and 
predictability of the multilateral trading system.  
II. AUSTRALIA'S VIEWS ON THE CORREC T INTERPRETATION OF THE EC'S 
SCHEDULE 
4. In accordance with Article II of the GATT 1994, WTO Members have an obligation to grant 
"treatment no less favourable than that provided" in their Schedules.  Specifically, subject to the terms, conditions or qualifications set forth in Sc hedules, products are to "be exempt from ordinary 
customs duties in excess of tho se set forth" in those Schedules.
2  The relevant Schedule establishing 
the obligations of the EC in the present dispute is  the EC Schedule as modified by the "Certification 
of Modifications to Schedule LXXX – Eu ropean Communities" of 2 July 1997.3  Pursuant to GATT 
Article II:7, a Member's Schedule of concessions is made an integral part of GATT 1994.  Hence, the 
correct approach for the Panel to adopt in examining the EC's Schedule is set out in Article 3.2 of the 
DSU,4 which  states that the clarification of provisions unde r the covered agreements is to be done "in 
accordance with customary rules of interpre tation of public international law."   
5. The ITA is clearly an important element in this dispute.  The ITA adopted a dual approach to 
the identification of products and the subsequent  scheduling of commitments.  Products were 
identified both through a list of World Customs Organization (WCO) HS 19965 product codes and 
descriptions in Attachment A to the Annex to the ITA, as well as through a list of specific products to 
be covered regardless of where they were classifi ed, included in Attachment B to the Annex to the 
ITA.   
6. When scheduling these commitments, WTO Member s party to the ITA maintained this dual 
approach to product coverage.  The EC listed HS tariff headings in Attachment A directly into their 
Schedule.  For Attachment B a "headnote"6 was also incorporated, which explicitly provided that any 
                                                      
1 WT/MIN(96)/16 signed at the WTO Ministeria l Conference, Singapor e, 13 December 1996. 
2 Art II:1(b) to the GATT 1994. 
3 WT/LET/156, 15 August 1997. 
4 Understanding on Rules and Procedures Governing the Settlement of Disputes . 
5 World Customs Organization Harmonized Commodity Description and Coding System (Harmonized 
System). 
6 The headnote to the EC Schedules states: 
"With respect to any product described in or for Attachment B to the Annex to the Ministerial 
Declaration on Trade in Informat ion Technology Products (WT/MIN(96)/16), to the extent  WT/DS375/R 
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  product described "in or for Attachment B" had a bound tariff rate of zero.  The text of the headnote, 
as part of the Schedule, must be interpreted in accordance with customary rules of interpretation of 
public international law, as codified in the Vienna Convention on the Law of Treaties  (Vienna 
Convention).  
7. Article 31 of the Vienna Convention  provides that "a treaty shall be interpreted in good faith 
in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in 
light of its object and purpose."  Article 31(2) sets out what can be considered "context" in treaty interpretation.   
8. In Australia's view, in accordance with Article 31, the operation of the headnote requires that 
concessions relating to the product de scriptions in Attachment B are not limited to tariff headings 
solely identified by the EC.  The headnote is a co ncession that operates in addition to the EC's tariff 
headings through the inclusion of the words "where ver the product is classified".  Accordingly, the 
scope of this concession is only limited by the scope of the product descriptions as set out in 
Attachment B and not by individual tariff headings.  This view is supported by the ordinary meaning 
of the text of the headnote.  Such an interpreta tion gives meaning to the headnote and does not reduce 
it to "inutility."
7 
9. Turning to the question of context, Australia recognises that both the Harmonized System and 
the ITA can be relevant "context" when interpreting Members' Schedules. 
10. In EC – Chicken Cuts8, the Appellate Body said that the Harmonized System was relevant 
"context" in the interpretation of tariff commitme nts in Members' Schedules within the meaning of 
Article 31(2)(a) of the Vienna Convention .  The Appellate Body formed this view after noting that 
there was broad consensus to use the Harmonized System as a basis for Members' Schedules at the 
time of the Uruguay Round negotiations.  Australia agrees with this view. 
11. In the present dispute Australia considers that  the Harmonized System is the starting point, 
but not the end point, for the identification of the co rrect context to interpret Schedules.  Interpretation 
of Schedules must also take account of other releva nt context and, ultimately, of the actual terms of 
those Schedules.  This view is supported by the statement of the Appellate Body in the China – Auto 
Parts  dispute where it said that the Harmonized Sy stem and its product categories had limits and 
"cannot trump the criteria contained in Article II:1(b) (of the GATT 1994)."9 
12. Australia considers that the ITA provides im portant "context" for interpreting the EC 
Schedule, the headnote and product descriptions unde r the headnote that accompany tariff headings in 
that Schedule.  Article 31(2)(b) of the Vienna Convention provides that context relevant to treaty 
interpretation includes "[a]ny instrument made by one or more parties in connexion with the 
                                                                                                                                                                     
not specifically provided for in this Schedule, the customs duties on such product, as well any 
other duties and charges of any kind (within th e meaning of Article II:1(b) of the General 
Agreement on Tariffs and Trade 1994), shall be bound and eliminated, as set forth in 
paragraph 2(a) of the Annex to the Declaration, wherever the product is classified." 
7 Appellate Body reports in US – Gasoline , WT/DS2/AB/R, at p. 23 and EC – Chicken Cuts , 
WT/DS269/AB/R, at para. 214. 
8 EC – Chicken Cuts  para. 199.  See also, China – Auto Parts , WT/DS339/AB/R, WT/DS340/AB/R 
and WT/DS342/AB/R,  para. 149 where the Appellate Body said "[i]t follows that the Harmonized System is 
context for purposes of interpreting the covered agreements, in particular for the classification of products under Schedules of Concessions…". 
9 China – Auto Parts para. 164. WT/DS375/R 
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  conclusion of the treaty and accepted by the other parti es as an instrument related to the treaty."  The 
ITA was adopted by participating Members during the Singapore Ministerial Conference of the WTO, a declaration expressly welcomed by all Members.
10  Australia notes that pursuant to the ITA, parties 
agreed to modify their Schedules to incorporate ITA commitments.  Members accepted the ITA as an 
instrument related to the EC Schedule by agreeing to modifications made to  the EC Schedule pursuant 
to the ITA.  Furthermore, the Appellate Body h as previously established that while each Member's 
Schedule represents the tariff commitments made by that Member, Schedules also "represent a 
common agreement among all Members."11 
13. Australia recalls that specific reference is made  in the EC Schedule to "[f]lat panel devices … 
for products falling within this agre ement, and parts thereof", and "[s]et  top boxes".  In its submission 
the EC has sought to narrow the scope of its co mmitments under the headnote to the HS codes it 
identified alongside the product descriptions.  Austra lia disagrees with this approach and considers 
that such an approach effectively reads-out words or text included in the Schedule, in particular the 
headnote, and is not consistent with the rules of treaty interpretation. 
14. Australia acknowledges that a provision to ne gotiate the inclusion of additional products 
exists within the ITA.12  However, in our view, this does not imply that products that fell within the 
ITA at the time of its conclusion would automatically  fall outside the scope of tariff free treatment on 
the basis of technological advancement. 
15. In its first written submission, the EC cites a j udgment of the European Court of Justice in the 
Kip case.13  The Court there held that multifunctional di gital machines capable of performing one or 
more data processing functions in addition to co pying "could not be classified directly under 
heading 8471 60 unless it was shown that the copyi ng function was 'secondary' " to other automatic 
data processing (ADP)-related functions (such as printing).14  The EC goes on to state that when the 
"copying function of the MFMs at issue in this section is not secondary in relation to their ADP 
functions, they are prima facie classifiable under the HS96 headings 8471 and 9009".15  In such cases, 
the EC concludes that the Harmonized System remain s the correct procedure to classify products with 
more than one "material or component wh ich gives them their essential character."16  Australia does 
not make a comment on the individual classification d ecisions of the EC, but recalls that the legal 
obligation of the EC contained in the headnote to  its Schedule provides that the customs duties on 
products described in or for Attachment B are to receive tariff free treatment "wherever the product is 
classified." 
III. AUSTRALIA'S VIEWS ON THE PRODUCTS AT ISSUE IN THIS DISPUTE 
16. We wish now to touch briefly on the specific products at issue in this dispute.  Addressing flat 
panel displays, Australia recalls the EC states in its first written submission that only "genuine ADP"17 
monitors fall within HS96 heading 8471 60 and w ould accordingly be entitled to duty free treatment.  
                                                      
10 See Singapore Ministerial Declaration , adopted on 13 December 1996,  WT/MIN(96)/DEC para. 18. 
11 EC – Computer Equipment , WT/DS62/AB/R, WT/DS67/AB/R and WT/DS68/AB/R,  para. 109. 
12 Paragraph 3 to the Annex to the ITA, WT/MIN(96)/16. 
13 European Court of Justice, Joined Cases C-362/07, Kip Europe and Others , and Hewlett Packard 
International  C-363/07. 
14 European Communities' first written submission in EC – IT Products , WT/DS375, WT/DS376 and 
WT/DS377, para. 359. 
15 European Communities' first written submission, para. 435. 
16 HS96 GIR 3(b).  See European Communities' firs t written submission at para. 441 states "[s]ince 
GIR 3(b) cannot be applied, it is necessary to resort to GIR 3(c)." 
17 European Communities' first written submission, para. 100.  WT/DS375/R 
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  This is provided for in EC Regulation 1031/2008 which limits tariff free treatm ent to monitors "[o]f a 
kind solely or principally  used in an automatic data-processing system" (emphasis added).
18  Australia 
notes the language "solely or principally" in that Re gulation is reflected in Note 5(B)(a) of Chapter 84 
to HS 1996.19  Australia recalls that the headnot e to the EC's Schedule provides, inter alia , for tariff 
free treatment of products "described in or for Attachment B" wherever  they are classified.20   Given 
that Attachment B specifically includes "[f]lat pa nel displays … for products falling within this 
agreement", Australia considers that the EC's a pproach of providing tariff free treatment only to 
monitors that can solely be used  in an ADP is at odds with its requirement to provide tariff free 
treatment to products pursuant to its Schedule.21  
17. Addressing multifunctional machines that can be connected to an ADP, Australia notes that 
Chapter Note 5(D) to Chapter 84 of the HS 1996 establishes that, among other products, "[p]rinters … 
which satisfy the conditions of paragra phs (B) (b) and (B) (c) above, are in all cases to be classified as 
units of heading No. 84.71" (emphasis added) wher e they are connectable to a central processing unit 
and can accept or deliver data used by the system.  Further, "[p]rinters" are cited as an example of an 
"output unit" in Subheading Note (1) to Chapter 84 of HS 1996. 
18. Lastly, briefly touching on set top boxes, Au stralia again notes the absence of restrictive 
language either in the EC Schedule or in Attachme nt B that could permit the narrow interpretation of 
products to receive tariff free treatment.  Austra lia considers that the ordinary meaning of the 
neologism "set top box" was not frozen in time at th e conclusion of the ITA, and an assessment of the 
objective characteristics or essential  character of set top boxes must be viewed in their context and in 
the light of the object and purpose of the EC's Schedule. 
IV. CONCLUSION 
19. In conclusion, Australia considers that where a Member incorporates la nguage in its schedule, 
this represents a binding obligation upon that Member.  In the event of specific reference to, or 
incorporation of, another agreement, such as the IT A in the present dispute, this material constitutes 
relevant "context" to assist in the interpretation of the ordinary meaning of treaty text consistent with 
customary rules of international law, as provided for in the DSU. 
                                                      
18 Commission Regulation (EC) No 1031/2008 of 19 September 2008. 
19 Note 5 (B) (a) to HS96 Chapter 84. 
20 See "headnote" to EC Schedule, WT/LET/156. 
21 Further, in the absence of restrictive language, the ordinary meaning of the word " for" cannot be 
viewed narrowly. WT/DS375/R 
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  ANNEX E-2 
 
EXECUTIVE SUMMARY OF THE  
THIRD PARTY SUBMISSION BY CHINA 
 
1. The People's Republic of China (hereafter "China ") makes this third party submission for the 
systemic interests in the interpretation of the EC's Schedule of Concessions that implements EC's commitments under the ITA. (the "EC Schedule"). 
2. In disputes that involve alleged violation of Ar ticle II(a) and (b) of GATT 1994, the text to be 
interpreted is the WTO member's concession schedule.  Therefore, China submits that the key issue of 
the present dispute concerns with the interpretation of  the relevant parts of the EC Schedule.  Since 
the EC Schedule is a WTO treaty, its interpreta tion should follow the well-established methodology 
provided in Articles 31 and 32 of the Vienna Convention on the Law of Treaties (the "Vienna 
Convention").  China submits that the elements pr escribed in Article 31, i.e. ordinary meaning, 
context and object and purpose of the text to be in terpreted, are of equal interpretational value and 
none is dispositive in the interpretation.  
3. In this submission, China will focus on the FPDs in the dispute. For the FPDs at issue, China 
first identifies two sources of text to be interprete d in the EC Schedule:  (1) tariff heading 8471.60.90 
and the corresponding product description and (2) th e Headnote Table that includes all products of 
Attachment B to ITA. ("Headnote Table") Tariff head ing 8471.60.90 covers input or output units for 
ADP machines.  By dictionary definition, output un its are external devices that deliver information 
from ADP machines. With respect to the Headnote Table, it covers "flat panel display devices 
(including LCD, Electro Luminescence, Plasma, Vacuum-Fluorescence and other technologies) for 
products falling within [ITA] and parts thereof."  By dictionary definition, "flat panel display devices" 
are thin display devices for apparatus, including ADP  machines.  The term "products falling within 
[ITA]" excludes FPDs for non-ITA covered products.   
4. China further submits that there are two sources relevant for contextual interpretation in the 
present dispute:  (1) HS 1996 and (2) ITA.  The re levance of HS as a source of context is confirmed 
by WTO law.  Since the EC Schedule was based on HS 1996, it provides a relevant context for the 
interpretation.  Furthermore, pursuant to Section 2( b) of Article 31 of the Vienna Convention, ITA 
also serves as the context for the in terpretation of the EC Schedule.  
5. To be a unit of ADP machines, the unit must be, inter alia , solely or principally used in an 
ADP system according to Note 5(B) to Chapter 84 of  HS 1996.  Therefore, an output unit of ADP 
under the heading 8471.60.90 is necessarily used so lely or principally with ADP machines.  
Conversely, an output device is not considered a unit of ADP machine within the meaning of 
8471.60.90 if it is not used solely or principally with ADP machines.  
6. With regard to ITA, China notices that Att achment B to ITA expressly exempts television, 
including high definition televisions from its coverage . China also notices that Attachment B states in 
the relevant part that "[m]achines performing a specific function other than data processing, or 
incorporating or working in conjunction with an automatic data processing machine, and not 
otherwise specified under Attachment A or B, are not covered by this agreement."  It can be 
concluded from the contexts that FPDs for non-ITA covered products, such as televisions, are beyond 
the scope of ITA.  
7. Moreover, China observes that ITA features a lim ited coverage of IT pr oducts, with the object 
and purpose of reflecting a balance reached by the pa rties to ITA.  China recalls that the panel in 
EC –  WT/DS375/R 
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 Page E-7 
  
  Chicken  Cuts stated that interpretation of the term of a concession should not disrupt the balance 
negotiated by the parties.  Thus China submits th at WTO treaties should not be interpreted in a way 
that disrupts the balance on product coverage.  
8. China hopes the viewpoints and various issues rai sed in this submission may assist the Panel 
in its decision WT/DS375/R 
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  ANNEX E-3 
 
ORAL STATEMENT BY CHINA  
AT THE FIRST SUBSTANTIVE MEETING 
 
9. Mr. Chairman, distinguished members of the Panel, China appreciates this opportunity to 
present its views over the present dispute.  In this st atement, I will highlight the main points of China's 
third party written submission. 
10. In this dispute, China believes the key issue is the interpretation of the relevant parts of the 
EC Schedule.  In line with WTO jurispruden ce, China follows the methodology established by 
Articles 31 of the Vienna Convention on the Law of Treaties ("Vienna Convention") for the interpretation of treaty languages and focuses its analysis on the flat panel devices ("FPDs") in question. 
11. First, China identifies two sources of text in th e EC Schedule for the interpretation of ordinary 
meaning:  (1) tariff heading 8471.60.90 and the corresponding product description, and (2) the 
Headnote Table that includes all products of Attach ment B to the Information Technology Agreement 
("ITA"). 
12. Tariff heading 8471.60.90 covers input or output units for automatic data processing ("ADP") 
machines.  According to dictionary definition,  output units are external devices that deliver 
information from ADP machines. 
13. The Headnote Table covers FPDs for products fallin g within ITA.  It can be inferred from the 
term "products falling within ITA" that FPDs  for non-ITA covered products are excluded.   
14. Second, China submits that there are two sources of context: (1) HS 1996 and (2) ITA.  
15. HS 1996 provides requirements for a device to qualify as a unit of ADP machines within the 
meaning of heading 8471.60 under HS 1996.  Accord ing to Note 5(B) to Chapter 84 of HS 1996, a 
unit must be solely or principally used in an ADP system to be covered by the heading 8471.60.90.  In 
other words, an output device is not considered  a unit of ADP machine within the meaning of 
8471.60.90 if it is not used solely or principally with ADP machines.  
16. With regard to ITA, China notices that Att achment B to ITA expressly excludes television 
from its coverage.  China also notices that Attachment  B states in the relevant part that "[m]achines 
performing a specific function other than data proces sing, or incorporating or working in conjunction 
with an automatic data processing machine, and not otherwise specified under Attachment A or B, are 
not covered by this agreement."  
17. It can be concluded from the above two cont exts that FPDs for non-ITA covered products, 
such as FPDs not used solely or principally with  ADP machines and FPDs used for televisions, are 
beyond the scope of ITA.  
18. Third, with respect to the element of object and purpose, China recalls that the panel in EC – 
Chicken  Cuts stated that interpretation of the term of a concession should not disrupt the balance 
negotiated by the parties.  China observes that ITA features a limited coverage of IT products, 
reflecting a balance reached by the parties to ITA.   Therefore, China submits that no interpretation 
should disrupt such a balance.  WT/DS375/R 
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 Page E-9 
  
  19. Based on the above analysis, China believes that  FPDs for non-ITA covered products, such as 
FPDs not used solely or principally with ADP machines and FPDs used for televisions, are not 
covered by the EC Schedule. 
20. This concludes my presentation. Thank you very much for your attention. WT/DS375/R 
WT/DS376/R WT/DS377/R 
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  ANNEX E-4 
 
EXECUTIVE SUMMARY OF THE  
THIRD PARTY SUBMISSION BY COSTA RICA 
 
1. Costa Rica is intervening in th is case because of its systemic and commercial interest in the 
proper interpretation of the tariff concessions ma de by WTO Members pursuant to the Information 
Technology Agreement (ITA).  As a developing co untry, Costa Rica has greatly benefitted from its 
participation in the ITA.  In 2007, informati on technology products accounted for approximately 
12 per cent of all imports to Costa Rica and for approximately 25 per cent of Costa Rica's total 
exports.  The information technology sector is, thus, of critical importance to Costa Rica's economy.   
2. The complainants submit that the products at issue in this dispute (multifunctional machines 
(MFMs), flat panel display devices (FPDs) and set-top boxes that have a communication function 
(STBs)) must be accorded duty-free treatment by the EC as provided for in its Schedule of 
Concessions and pursuant to its obligations undertaken  in the ITA.  The EC responds that the products 
at issue fall "within the scope of other concessions included in the EC Schedul e, which do not provide 
for duty free treatment".  The interpretative issue for this Panel, therefore, is to determine the proper 
product scope of the tariff concessions at issue.  In  Costa Rica's view, the Panel should conduct this 
analysis by using the principles of treaty interpretation as set out in Articles 31 and 32 of the Vienna 
Convention on the Law of Treaties and not by applying rules of customs classification.   
3. In Costa Rica's view, the relevant obligation of  which the EC is allegedly in breach can be 
determined through the following order of analysis:  
 First, by an examination of the tariff lines of  the EC's Schedule to determine whether the 
product at issue falls within the scope and content of the concession;  
 Second, if the product at issue is not accorded duty free treatment in the Schedule ("to the 
extent not specifically provided for in this Schedule"), then by recourse to the headnote 
of the EC's Schedule, which provides:    
"With respect to any product described  in or for Attachment B to the 
Annex to the Ministerial Declaration on Trade in Information Technology Products (WT/MIN(96)/16), to the extent not 
specifically provided for in this Schedule, the customs duties on such 
product, as well as any other duties and charges of any kind (within the meaning of Article II:1(b) of  the General Agreement on Tariffs 
and Trade 1994), shall be bound and eliminated, as set forth in paragraph 2(a) of the Annex to th e Declaration, wherever the product 
is classified." 
 Third, by determining whether the product at issue is described in or for Attachment B 
(i.e., those products listed in Attachment A) to the Annex to the ITA.   
4. The three complainants and the respondent all acknowledge the relevance of the ITA for the 
interpretation of the tariff concessions at issue in this dispute.  In Costa Rica's view, it would be 
appropriate to identify the status of the ITA within the analytical framework of the Vienna Convention 
on the Law of Treaties .  In Costa Rica's view, the ITA is  "context" within the meaning of 
Article 31(2)(b) of the Vienna Convention .  The Ministerial Declaration of the ITA reflects the 
intention of the participants to have a broad in terpretation of the product coverage of the ITA.   WT/DS375/R 
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  Paragraph 3 of the Ministerial Declaration states that "Ministers express satisfaction about the broad 
product range outlined in the Attachments to the Annex to this Declaration."  This statement, read in conjunction with the third and fourth recitals in the Preamble, read together with paragraph 3, suggest 
that although participants were pleased with the br oad product coverage of th e ITA, they nevertheless 
wanted to ensure technological development (i .e., such as new products ) to achieve maximum 
"freedom" (i.e., duty-free treatment) for information technology products. 
5. The EC states that "the inclusion of a new product must be negotiated;  it cannot be assumed 
to be covered by the concessions just because it happe ns to also perform similar functions as a product 
that is covered by the concessions.  And this nego tiation procedure is precisely what the ITA foresees 
explicitly." It seems that the EC's position is that any technological change in a covered product gives 
rise to the requirement to agree by  consensus to positively add that "new" product to the coverage of 
the ITA.  This approach is contrary to the ai m of the ITA, which notes that although the parties 
wanted to "encourage technological development", th ey specifically declared that "each party's trade 
regime should evolve in a manner that enha nces market access opportunities for information 
technology products".  If other WTO Members and the Panel were to adopt the approach suggested by 
the EC, the number of products that would benefit from duty-free treatment pursuant to ITA obligations would be steadily decreased in the li ght of the rapid technological developments that 
occur in the field of information technology.   
6. With respect to set-top boxes, the EC submit s that the complainants' claims suffer from 
serious errors because the complainants refer to a "set-top box with a communication function", 
whereas the EC commitment is with respect to "set-top boxes which  have  a communication function" 
(emphasis added).  In the EC's view, based on the di ctionary definition and the context of the words, 
there is a significant difference between the terms "which have" and "with".  In Costa Rica's view, 
there is no support for an interpretation that w ould give the two phrases significantly different 
meanings.  Costa Rica also notes th at the wording in the French and Spanish versions of the ITA, 
which are both equally authentic, do not correspond exactly to the English phrase "which have". 
7. With respect to flat-panel display devices, the issue is whether they fall within the definition 
of "flat panel display devices (including LCD, Electro Luminescence, Plasma, Vacuum-Fluorescence and other technologies) for products falling within this agreement, and parts thereof" provided in 
Attachment B of the ITA.  The EC argues that a unit must be "solely or principally used in an 
automatic data-processing system" and therefore must be for exclusive  use with an ADP machine in 
order to be classified as a flat-panel display device under 8471.  In Costa Rica's view, there is no textual basis to support this interpretation.   
8. Costa Rica notes that MFMs are machines that ma y be used for scanning, digital copying, or 
facsimile transmission, in addition to printing.  Th e issue is whether a MFM with connectivity to an 
ADP machine that is capable of scanning, printing and faxing should be classified under 8471 60 as 
an "input or output unit for automatic data processing machines" or under 9009 12 00 as  
"photocopying apparatus".  As noted by the th ree complainants, MFMs should be classified under 
8471 or 8471 60 as they are not "photocopiers".  Photocopying is based on optical technology, 
whereas the products at issue manipulate the digital da ta in order to produce the printout.  In Costa 
Rica's view, it is doubtful that the transmission of  digital data constitutes a form of photocopying. 
9. Costa Rica considers that this case raises important  questions with respect to the interpretation 
of the tariff concessions made by WTO Members pursuan t to the ITA.  As a developing country with 
a strong interest in expanding its information technology sector, Costa Rica considers that such tariff 
concessions must be interpreted, consistently with the Vienna Convention , in such a manner as to give WT/DS375/R 
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Page E-12 
  
  effect to the aim of the ITA that "each party's tr ade regime should evolve in a manner that enhances 
market access opportunities."  WT/DS375/R 
 WT/DS376/R 
 WT/DS377/R 
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  ANNEX E-5 
 
ORAL STATEMENT BY COSTA RICA  
AT THE FIRST SUBSTANTIVE MEETING  
 
I. INTRODUCTION  
1. Costa Rica appreciates this opportuni ty to express its views at th is meeting of the Panel with 
the parties and the third parties.   
2. As a developing country, Costa Rica has greatly be nefited from its participation in the ITA.   
Costa Rica is intervening in this case because of its systemic and commercial interest in the proper 
interpretation of the tariff concessions made by WTO Members pursuant to the ITA.  This is the first 
time a panel is required to interpret a Member's  tariff concessions pursuant to the ITA and to 
determine the treatment to be accorded to products fa lling under the ITA.  As noted by Singapore, this 
case has potentially far-reaching implications for global trade in information technology and 
technological innovation generally.
1 
3. In its written submission, Costa Rica has put fo rward its views on the claims of the three 
complainants and on the defense of the respondent, and will therefore not repeat all its comments at 
this time.  We respectfully request the Panel to be mindful of these comments, in particular with 
respect to the scope and coverage of the tariff conc essions at issue and the categorization of the ITA 
as context within the meaning of Article 31(2)(b) of  the Vienna Convention, in the course of assessing 
the matter before it.   
4. Costa Rica would like to take this opportunity to comment on two substantive issues:  
(i) whether the procedures provided for in paragraph 3 of the Annex to the ITA must be followed in 
order for the products at issue to receive duty-free treatment or whether such products are covered by 
the concessions in the EC Schedule based on the ITA and its Attachments;  and (ii) whether additional 
features or functionalities of a product disqualify that product from receiving duty-free treatment 
under the EC Schedule based on the ITA and its Attachments.   
II. WHETHER THE PROCEDURES PROVIDED FOR IN PARAGRAPH 3 OF THE 
ANNEX TO THE ITA MUST BE FOLLOWED IN ORDER FOR THE PRODUCTS AT ISSUE TO RECEIVE DUTY-FREE TREATMENT?  
5. Turkey states that only those products that are specified in the two attachments of the Annex 
to the ITA must be accorded duty-free treatment.  In its view, the products at issue in this dispute do 
not fall under the current ITA.  Turkey notes that if parties wish to extend the product coverage of the 
ITA, they have to follow the procedures set fo rth in paragraph 3 of the Annex to the ITA.
2  
Paragraph 3 provides that parties shall meet periodi cally "to review the product coverage specified in 
the attachments with the view to agreeing, by co nsensus, whether in the light of technological 
developments, experience in applyi ng the tariffs concessions, or changes to the HS nomenclature, the 
Attachments should be modified to incorporate additional products".   
6. The EC has also stated that "the inclusion of a new product must be negotiated; it cannot be 
assumed to be covered by the concessions just becau se it happens to also perform similar functions as 
a product that is covered by the concessions.  And this negotiation procedure is precisely what the 
                                                      
1 Singapore's third party written submission, para. 8. 
2 Turkey's third party written submission, paras. 6 - 8. WT/DS375/R 
WT/DS376/R WT/DS377/R 
Page E-14 
  
  ITA foresees explicitly."  It appears that the EC's position is that any technological change in a 
covered product gives rise to the requirement to agree by consensus to positively add that "new" 
product to the coverage of the ITA.  This approach is contrary to the aim of the ITA, which notes that 
although the parties wanted to "encourage technologi cal development", they sp ecifically declared that 
"each party's trade regime should evolve in a manner that enhances market access opportunities for 
information technology products".  If other WTO Memb ers and the Panel were to adopt the approach 
suggested by the EC, the number of products that would benefit from duty-free treatment pursuant to 
ITA obligations would steadily decrease in the light  of the rapid technological developments that 
occur in the field of information technology.  As Singapore notes, the ITA did not envisage 
continuous negotiations to keep the IT pr oducts it covered free from duties as and when a 
technological development occurred.
3  
7. Thus, mindful of the fact that negotiators were fully aware that there would be rapid 
technological developments in this sector, Costa Rica  considers that it would be more appropriate to 
interpret the negotiation procedure envisaged in pa ragraph 3 as referring to the procedures to include 
brand new products under the covera ge of the ITA.  Turkey itself notes that the paragraph 3 provides 
procedures for the incorporation of additional  products and that, in other words, the Attachments 
cannot be modified to "exclude" any of the listed products.4    
8. Costa Rica considers that as long as a product is listed in Attachment A or B to the ITA, it 
must be given duty-free treatment.  To exclude su ch products from ITA covera ge would be contrary 
to the object and purpose of the ITA which, as noted  by the Philippines, is to expand world trade in 
information technology products to the maximum extent possible.5  Paragraph 3 thus contemplates 
procedures by which products may be added to , not excluded from, ITA coverage.     
III. WHETHER ADDITIONAL FEATURES OR FUNCTIONALITIES OF A PRODUCT 
DISQUALIFY THAT PRODUCT FROM RECEIVING DUTY-FREE TREATMENT 
UNDER THE EC SCHEDULE BASED ON THE ITA? 
9. The complainants submit that the products at issue in this dispute (multifunctional machines 
(MFMs), flat panel display devices (FPDs) and set-top boxes that have a communication function 
(STBs)) must be accorded duty-free treatment by the EC as provided for in its Schedule of 
Concessions and pursuant to its obligations undertaken  in the ITA.  The EC responds that the products 
at issue fall "within the scope of other concessions included in the EC Schedul e, which do not provide 
for duty free treatment".  The interpretative issue for this Panel, therefore, is to determine the proper 
product scope of the tariff concessions at issue.   
10. With respect to flat-panel display devices, the issue is whether they fall within the definition 
of "flat panel display devices (including LCD, Electro Luminescence, Plasma, Vacuum-Fluorescence and other technologies) for products falling within this agreement, and parts thereof" provided in 
Attachment B of the ITA.  The EC argues that a unit must be "solely or principally used in an 
automatic data-processing system" and therefore must be for exclusive  use with an ADP machine in 
order to be classified as a flat-panel display devi ce under 8471.  Turkey further notes that flat panel 
display devices which incorporate digital visual in terface or high-definition multimedia interface are 
able to be connected to certain consumer elect ronic products as well information technology products 
falling within the ITA.  Turkey thus concludes th at a flat-panel display device which is a dual-use 
                                                     
 
3 Singapore's third party wr itten submission, para. 16. 
4 Turkey's third party written submission, para. 12. 
5 Phillipnes' third party written submission, para. 16.  WT/DS375/R 
 WT/DS376/R 
 WT/DS377/R 
 Page E-15 
  
  product does not fall under the existing ITA.
6  The task of the Panel is not to determine whether a 
product is capable of performing various functions, but rather to determine the scope of the tariff 
concession and whether the product at issue meets the basic criteria to fall under that tariff concession, 
regardless of whether that product performs additional functions.  
11. With respect to set-top boxes, Turkey has stat ed that "set-top boxes ... having the function of 
processing and/or recording and transmitting input to televisions, monitors or other similar devices, 
should be regarded as consumer electronic products."  Turkey is thus of the view that the primary 
purpose of these set-top boxes is to interact with tele vision broadcasts, and their information exchange 
features are secondary, and therefore, these products do not fall within the scope of the existing ITA.7  
Costa Rica considers that Panel's task is not to  determine the primary or secondary function of a 
product, but rather to determine the scope of th e tariff concession and whether the characteristics of 
the product correspond to the description set out in that tariff concession, regardless of whether that 
function constitutes the primary or secondary purpose of the product.  
12. In summary, in Costa Rica's view, as long as a product meets the minimum requirements to 
fall within Attachment A or Attachment B to the ITA, it must be given duty-free treatment, even though it may have additional technological features or different functions.     
IV. CONCLUSION  
13. Mr. Chairman, Members of the Panel, to conclude, Costa Rica wishes to highlight that this 
case raises important questions with respect to th e interpretation of a Member's tariff concessions 
pursuant to the ITA and the tariff treatment to be acco rded to such products.  As a developing country 
with a strong interest in expanding its informati on technology sector, Costa Rica considers that such 
tariff concessions must be interpreted, consistently with the Vienna Convention , in such a manner as 
to give effect to the aim of the ITA that "each party's trade regime should evolve in a manner that enhances market access opportunities."  
14. The participation in the ITA has brought treme ndous economic benefits to Costa Rica and to 
other developing countries.  It is of critical importance to Costa Rica and to other developing countries that the commitments that  WTO Members assumed, pursuant to the ITA, are interpreted in a 
manner that enhances, rather than limits, interna tional trade in the information technology sector. 
15. Costa Rica thanks the Panel for the opportuni ty to present this oral statement.  
                                                     
 
6 Turkey's third party written submission, paras. 35 – 37.  
7 Turkey's third party written submission, para. 38 – 39.   WT/DS375/R 
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Page E-16 
  
  ANNEX E-6 
 
ORAL STATEMENT BY HONG KONG, CHINA  
AT THE FIRST SUBSTANTIVE MEETING 
  
1. Hong Kong, China welcomes the opportunity to participate and present its views as a third 
party before this Panel.  
2. This is the first WTO dispute concerning the Information Technology Agreement (ITA")
1. 
Hong Kong, China has a strong systemic interest in  the proper interpretation and effective operation 
of the ITA, of which Hong Kong, China is one of the first 14 signatories.  In addition, it has trade interests in some of the information technology produ cts subject to this dispute.  We would therefore 
like to make a brief statement of our views on some of the important issues in this dispute. 
3. As provided in its preamble, the ITA aims to achieve maximum freedom  of world trade in 
information technology products and to encourage the continued technological development of the 
information technology industry on a world-wide basis.  The ITA also stipulates that each participant's 
trade regime should evolve  in a manner that enhances market access opportunities  for information 
technology products. Hong Kong, China considers th at such object and purpose must be taken into 
account in interpreting the participants' commitmen ts under the ITA, which have been transformed 
into commitments under the respective schedules of tariff concessions of the participants, as in the 
case of the European Communities ("EC").    
4. Undoubtedly, the ITA has played a vital role in enhancing market access opportunities for 
information technology products since its implemen tation in 1997 and has resulted in tremendous 
expansion of world trade in information technol ogy products. The products covered by the ITA as 
listed in Attachments A and B are, in our view, ve ry broad, but clear. In particular, Attachment B 
provides a wide scope of product coverage, namely, "a positive list of speci fic products covered by 
the ITA wherever they are classified  in the Harmonized System". For products covered under the 
ITA, they should be accorded zero-tariff treatment without any restriction. In other words, the participants' domestic customs classifications or re classifications of such products should not affect 
the product coverage under the ITA.    
5. Hong Kong, China generally supports the Co mplainants' arguments and agrees that the 
information technology products con cerned in this dispute, i.e. flat panel displays, set-top boxes 
which have a communication functi on and multifunctional digital ma chines, should all be covered 
under the ITA and entitled to duty-free treatment, as committed by the EC in its schedule of 
concessions pursuant to the ITA.  In this connecti on, Hong Kong, China submits that the Panel should 
determine the scope of the EC's tariff concessi ons commitments and/or the product coverage under 
the ITA by applying Articles 31 and 32 of the Vienna Convention on the Law of Treaties.  Having 
regard to the ordinary meaning of the product descr iptions in their context and in the light of the 
object and purpose of the ITA and the schedule of concession of the EC, Hong Kong, China is convinced that the Panel will come to the same conclusion as submitted by the Complainants.    
6. Hong Kong, China is unable to accept the EC's argument on "differences between the product 
existing at the time of the conclusion of the IT A and the product of today which is under dispute," 
ostensibly for justifying its reclassifications and consequential tariff treatment for information 
technology products under dispute.  The EC further argued that any "new products" that did not exist 
                                                     
 
1 The Ministerial Declaration on Trade in Information Technology Products concluded at the Singapore 
Ministerial Conference on 13 Decem ber 1996 is known as the Info rmation Technology Agreement.  WT/DS375/R 
 WT/DS376/R 
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 Page E-17 
  
  at the time of signing the ITA are not covered by the ITA and must be negotiated. Such an argument 
implies that the ITA is static and merely covers  information technology products which existed in 
1996.  However, information technology products by  their nature keep enhancing, developing and 
evolving, and such continued technological developm ent is indeed encouraged under the ITA. Hong 
Kong, China considers that the EC's argumen t ignores the "enhancement", "development" and 
"evolvement" aspects of the ITA and cannot stand in light of the object and purpose of the ITA.  In our view, technology-sophisticated and functions-a dded information technology products are clearly 
contemplated and covered under the ITA.  A restri ctive interpretation as suggested by the EC would 
result in an absurd situation that while technol ogy develops, the number of  products benefiting from 
the market access opportunities pursuant to the ITA diminishes and is not commensurate with the 
growth in information technology products.  Such an approach will no doubt undermine the benefits 
accrued to the participants of the ITA and will rende r the ITA meaningless in th e near future.  Hong 
Kong, China therefore submits that the Panel should re ject the argument of the EC in this respect.  
1. Conclusion 
7. In view of the aforesaid, Hong Kong, China r espectfully submits that the Panel should uphold 
the Complainants' claim and find that the measures imposed by the EC on the 3 subject categories of information technology products are inconsistent wi th its commitments pursuant to the ITA and its 
obligations under Articles II:1(a) and II:1(b) of the GATT 1994. 
8. Mr. Chairman, Hong Kong, China hopes that its views will assist the Panel in its 
consideration of this dispute.  Thank you for your attention, and once again, for the opportunity to 
appear before this Panel.  WT/DS375/R 
WT/DS376/R WT/DS377/R 
Page E-18 
  
  ANNEX E-7 
 
ORAL STATEMENT BY INDIA  
AT THE FIRST SUBSTANTIVE MEETING 
 
1. India welcomes this opportunity to present its views in these proceedings. 
2. The present dispute concerns the treatment of three products under ITA having certain 
features.  The complainants viz. the US, Japan and Separate Customs Terr itory of Taiwan, Penghu, 
Kinmen and Matsu have made deta iled submissions as to why these products are required to be given 
duty-free treatment by the EC in terms of ITA.  Th e EC has furnished exhaustive counter arguments 
in support of their contention that the products do not merit such treatment in all situations.  The EC 
has also stated that the duty-free treatment cannot  be extended to all variants of the products. 
3. I am not entering into the details of rival submissions, nor am I going to comment on their 
respective merits.  We are sure the Panel will do that .  The facts of the case will have to be analyzed 
in detail and proper conclusion drawn with a view to  ensuring that the rights of ITA Members are not 
adversely affected as a result of any improper interpreta tion of the scope of ITA.  In this dispute, India 
has joined as third party because we do have some syst emic concerns.  We believe this dispute is of 
importance to other WTO Members as well because of the systemic and commercial interest.  
4. We fully recognize the need to support and fost er technological innovation and improvement.  
We also recognize that IT is an area where su ch innovation is the fastest, and products become 
obsolete in a short period of time.  It is thus a valid objective that all benefits of trade agreements 
concerning such products are fully available during the life of the products concerned.  However, on 
the other hand, the product coverage envisaged und er any trade agreement is an equally important 
aspect.  Therefore while debating the issue of app licability of preferential tariff treatment for IT 
products, one needs to take on board both these critical issues of fostering technological 
improvements and sticking to th e mandated  product coverage. 
5. Mr. Chairman, the convergence of information technology and consumer electronics has led 
to emergence of "new" products. However, in the present dispute, given the intricacies involved and 
the facts at hand, it is difficult to say whether the three products at issue are actually new products or 
products that are evolved forms of what was include d in the ITA due to improvements in technology.  
If the products are indeed new, not covered by ITA, th eir inclusion will have to be negotiated.  In fact, 
the ITA does provide a negotiating procedure to in clude additional products.  Paragraph 3 of the 
Annex to the 1996 Ministerial Declaration states that "participants shall meet periodically….to review 
the product coverage specified in the Attachments… ..to incorporate additional products."  Therefore, 
to the extent that any ITA participant wants to include additional products under the ITA, the same 
will have to be done through negotiations. 
6. We understand, EC's schedule, like any other WT O Member, is an integral part of the WTO 
Agreement and, interpretation of this treaty should  follow the rules provided in Article 31 and 32 of 
the Vienna Convention on Law of Treaties as they embody the "customary rules of public 
international law" within the meaning of Article  3.2 of the Understanding on Rules and Procedures 
Governing the Settlement of Disputes, in determin ing the precise meaning and scope of the language 
in the EC’s schedule, including individual tariff headings.  Article 31 of the Vienna Convention 
contains the interpretative elements of ordinary meaning, context and object and purpose.  However, 
Article 31 neither directs an interpreter to give mo re weight to certain element, nor does it impose a 
hierarchical approach in terms of interpretative valu e of the elements for the purpose of interpretation.  WT/DS375/R 
 WT/DS376/R 
 WT/DS377/R 
 Page E-19 
  
  In our view these interpretative elements are of equal interpretative value and neither element is 
dispositive.     
7. Mr. Chairman, it is true that the Ministerial Declaration talks about trade regimes of 
participants being evolved "in a manner that e nhances market access opportunities for IT products". 
But then, the duty-free treatment can be accorded only if the products fall within the remit of Annex 
and the Attachments thereto of the said Declaration.  From a perusal of submissions of the complainants, it is seen that their claims for duty -free treatment are basically on the ground that the 
products at issue are squarely covered by the Att achments A and B of the Annex to the Ministerial 
Declaration.  This is crucial as in the WTO, Me mbers obligation to provide a particular tariff 
treatment is not open ended but finite.  The list of goods as agreed to in the Annex and the Attachments of the ITA in 1996 has to be the basis for determining the tariff treatment due to these 
products.  We, therefore, support the view that cl assification of a product will have to be decided 
based upon the objective characteristics and technical parameters.   
8. While deliberating on this issue, it is equally im portant to dwell on the principles enshrined in 
the Harmonized System (HS) classification.  The HS classification is determined according to the 
terms of the headings and any relative Section or Chapter notes.  When this is not possible and the 
goods are classifiable under two or more headings , the heading which provides the most specific 
description is preferred to headings providing a more general description.  Composite goods made up 
of different components are classified as if they consist of the material or component which gives 
them their essential character.  When the goods cannot be classified by adopting the above principles, 
they are classified under the heading which occurs last in numerical order among those which equally 
merit consideration. 
9. Mr. Chairman, We are confident that the Panel w ill consider all relevant facts and take a view 
on classification and duty treatment in the light of wh at is contained in ITA and relevant HS rules. WT/DS375/R 
WT/DS376/R WT/DS377/R 
Page E-20 
  
 ANNEX E-8 
 
EXECUTIVE SUMMARY OF THE  
THIRD PARTY SUBMISSION BY KOREA 
 
1. In this submission, Korea wishes to highlight  certain legal and interpretive questions for 
which the Panel could provide an important guidance for future dis putes in the ITA covered product. 
Korea also comments on what it considers to be th e appropriate interpretative methodology for this 
dispute.  
2. After conclusion of the ITA, the participati ng Members in the ITA revised their respective 
tariff commitments for certain technology products through formal modification of their Schedules of tariff concessions.  It is those Schedules of tariff c oncessions that bind those participating Members.  
Thus, Korea believes that this dispute is to be r esolved by "accurately and correctly" interpreting the 
commitments made by the EC, as set out in its Schedule of tariff concessions. 
3. The EC revised its Schedule in two ways pursua nt to the ITA:  (a) it modified the tariff 
commitments made in a number of headings and sub- headings of its Schedule; and, (b) it added to its 
Schedule a headnote and an ensuing list of products derived from Attachment B to the ITA.  In Korea's view, the Panel's interpre tative methodology in this dispute should begin with the terms of 
this headnote and the list of products following that headnote ("the headnote product list").  
4. Regardless of the specific heading or sub-head ing under which a particul ar product falls in the 
EC Schedule, a product included in the headnote pr oduct list which is derived from the corresponding 
ITA list, is entitled to duty-free treatment.  Therefor e, if a particular product is covered by the 
headnote product list, it would appear that the EC is  required to grant that product duty-free treatment, 
"wherever the product is classified".  In this regard , the list of HS headings attached next to each 
product cannot reasonably have the meaning that the EC attempts to ascribe to it, because this 
interpretation would render the phrase " wherever the product is classified ", a phrase expressly stated 
in the EC's Schedule, simply ineffective and meaningless.   
5. In Korea's view, given the "wherever the produc t is classified" language, what is controlling 
in this analysis should be the narrative product descr iption in the headnote product list, that is, the 
phrase " wherever . . . classified".  In contrast, by all ac counts the HS headings next to the product 
descriptions appear to be illustrative, rather than  exhaustive or controlling.  Korea would welcome the 
Panel's thorough analysis and reliable guidance on the interpretative approach of this treaty language.  
6. As to interpreting the product descriptions in the headnote product list, the Panel should apply 
the general rules of treaty interpretation, as embodied in Articles 31 and 32 of the Vienna Convention .
   
In applying these rules, the Panel should examine th e ordinary meaning of the terms, read in their 
context and in light of the object and purpose of those terms, as well as of the treaty as a whole.  In 
examining the ordinary meaning of the terms, part icular product descriptions may need to be given a 
"special meaning", pursuant to Article 31.4 of the Vienna Convention , because the terms found in the 
EC Schedule are overwhelmingly "technical" and appear  in a "specialized" sector of goods trade, 
namely, information technology products.  
7. Furthermore, Korea considers that it is not entirely clear what the precise products and 
product models are at issue in this dispute.  In Korea's view, the present dispute does not involve "as 
applied" measures, where the particular product/produ ct model at issue and the facts surrounding that 
product would be relatively clear.  Rather, this dispute apparently involves "as such" measures 
regarding the tariff treatment of three broad pr oduct categories.  Korea recalls that, under well- WT/DS375/R 
 WT/DS376/R 
 WT/DS377/R 
 Page E-21 
  
 established WTO principles, it is for the complainan ts to make a prima facie case that, in some 
instances at least, the respondent's "as such" m easures necessarily violate the respondent's WTO 
obligations.     WT/DS375/R 
WT/DS376/R WT/DS377/R 
Page E-22 
  
 ANNEX E-9 
 
EXECUTIVE SUMMARY OF THE  
THIRD PARTY SUBMISSION  BY THE PHILIPPINES 
 
I. INTRODUCTION 
1. The Philippines provided the Panel with its views in this dispute, in which the United States, 
Japan and Chinese Taipei claim that the tariff tr eatment the EC and its Member States accord to 
certain information technology pr oducts do not reflect the EC commitments to provide duty-free 
treatment for these products under the WTO Information Technology Agreement.  
2. It will be recalled that in 1996, the "Ministerial Declaration on Trade in Information 
Technology Products" (or the "Information Technolog y Agreement," or "ITA") was adopted and the 
signatories committed to grant duty-free treatment to th e products covered in that Declaration.  Rate 
reductions were to take effect in equal steps starting no later than 1 July 1997 and ending no later than 
1 January 2000. 
3. As an ITA participant, the EC modified its Schedule to reflect the commitments made under 
the ITA.  Such modifications became effective on 2 July 1997.  Accordingly, the EC and its Member 
States must apply duty-free treatment on a number of products, including, inter alia , flat panel 
displays ("FPDs"), set-top boxes ("STBs") with a communication function, and certain "input or 
output units" of "automatic data processing ma chines" and facsimile machines ("MFMs").  
4. However, as a result of certain EC measures, the EC and its member States apply customs 
duties on the aforementioned products, specifically, a 14% duty on Flat Panel Displays (FPDs) , 
13.9% and 14% duties on Set Top Boxes (STBs) , and a 6% duty on Multifunctional Machines 
(MFMs).  
II. PHILIPPINE VIEWS ON THE EC TARIFF TREATMENT OF FLAT PANEL 
DISPLAYS, SET TOP BOXES, AND MULTIFUNCTIONAL MACHINES 
5. The Philippines agrees that pursuant to Article 31(1) of the Vienna Convention on the Law of 
Treaties , a treaty must be interpreted in the light of its object and purpose.  Furthermore, as underlined 
by the panel in EC – Chicken Cuts (Brazil) , the relevant aspects of the WTO Agreement and the 
GATT 1994 provide that concessions made by WTO Me mbers should be interpreted so as to further 
the general objective of the expansion of trade in goods and the substantial reduction of tariffs.  
6. In this respect, it is clear from the Preamble and text of the ITA that the manifest object and 
purpose of the ITA is to expand world trade in IT pr oducts to the maximum extent possible by way of 
eliminating customs duties as well as any other duties and charges.  Interpretations such as the one 
advocated by the EC do not conform to the ITA's obj ect and purpose.  In particular, an interpretation 
that would result in excluding from the EC concessi ons certain IT products will be contrary to the 
objective of substantial reduction of tariffs th rough reciprocal and mutually advantageous 
arrangements. 
7. Article II:1(a) of the GATT 1994 contains a general prohibition of according treatment less 
favourable to imports of products from the other contracting parties than that provided for in a WTO 
Member's schedule.  Article II:1(b) prohibits a sp ecific kind of practice that is inconsistent with 
paragraph (a), that is, the app lication of ordinary customs duti es in excess of those set forth and 
provided in the schedule.    WT/DS375/R 
 WT/DS376/R 
 WT/DS377/R 
 Page E-23 
  
 8. The Philippines submitted that the EC and its Me mber States accord, through the measures at 
issue, treatment to the products at issue that is less favourable than that provided for in the EC 
Schedule. Specifically, the EC currently imposes a 14% duty on Flat Panel Displays (FPDs) , 13.9% 
and 14% duties on Set Top Boxes (STBs) , and a 6% duty on Multifunctional Machines (MFMs)  
instead of applying duty-free treatment on the sai d Information Technology products as provided for 
in the EC Schedule.  For certain FPDs, the EC also makes the granting of a zero tariff upon 
importation subject to terms, cond itions and qualifications not set fo rth in the EC Schedule.  The 
Philippines submits that there was no justification for the new EC classification and the EC thus 
violates its obligations under Articles II:1(a) and (b) of the GATT 1994.  
9. In addition, with respect to STBs, the Philippin es submitted that the EC and its member States 
acted inconsistently with their obligations under Articles X:1 and X:2 of the GATT 1994 by failing to 
promptly publish EC classification-related regula tions and by applying duties prior to their 
publication. 
III. CONCLUSION 
10. The Philippines agrees with the claims of the United States, Japan and Chinese Taipei that the 
measures of the European Communities and its Member  States concerning flat panel displays, set top 
boxes with a communication function, and multif unctional machines are inconsistent with 
Articles II:1(a) and II:1(b) of GATT 1994. Furthermor e, we agree that the EC measures concerning 
set top boxes with a communication function are also  inconsistent with Articles X:1 and X:2 of 
GATT 1994. WT/DS375/R 
WT/DS376/R WT/DS377/R 
Page E-24 
  
 ANNEX E-10 
 
EXECUTIVE SUMMARY OF THE ORAL STATEMENT  
BY THE PHILIPPINES AT THE FIRST SUBSTANTIVE MEETING 
 
I. INTRODUCTION 
1. The Philippines noted that in view of the en abling nature of information technology, it has 
rightfully become an important priority for many members of the global trading system.  It 
underscored its strong interest in the correct in terpretation and application of the EC's ITA 
commitments, as it is currently ranked as the 10
th largest ITA supplier to the European Union with 
Total EU imports of ITA produc ts at $223 billion in 2005, and the Philippines accounting for 
$5.4 billion of that amount.  The Philippines fully endorsed the presentations made by the three complaining Members. 
II. GENERAL CONSIDERATIONS 
2. Noting Article II:1(a) and II:1(b) of the GATT 1994, the Philippines submitted that the 
central element in this dispute is whether the EC has in fact collected duties in excess of those set 
forth in the EC Schedule, and that the key issue revolves around the misapplication or non-application 
by the EC of their tariff commitments and concessions as scheduled.  
3. As the concessions contained in the EC Schedule are integral parts of the WTO Agreement  
pursuant to GATT 1994 Article II (7),  the Philippines posited that th ese concessions are part and 
parcel of the language of the c overed agreements whose meaning mu st abide by the customary rules 
of treaty interpretation. As established in WTO jurisprudence, Articles 31 and 32 of the Vienna 
Convention on the Law of T reaties ("Vienna Convention" ) codify "customary rules of interpretation 
of public international law" within the meaning of Article 3.2 of the DSU. These provisions thus 
comprise the legal framework within which any inte rpretative exercise of language contained in the 
WTO covered agreements must take place. 
4. The Philippines stated that a key question in th is dispute is whether or not the EC measures 
have resulted in an undue limitation of the scope of  their concessions and a derogation of rights of the 
members affected by such measures.  The Panel is , as such, not concerned with the question whether 
the classification adopted by the EC is correct or not , but rather, what is important is that the tariff 
which results and is in the end applied because of such classification decision, was in fact the correct 
and legally binding tariff under the Agreement and the EC Schedule, which was a nd is an integral part 
of the Agreement.  In this regard, customs classi fication rules and practice in the domestic setting may 
certainly be helpful but can never be decisive for the above analysis.   
5. The Philippines believed that interpretations such as the one advocated by the EC do not 
conform to the ordinary meaning of, nor the object and purpose, of their concessions and are not 
faithful to the Agreement entered into and committed to by the EC.   
III. ON FPDS 
6. The Philippines posited that the Panel will have to  determine the scope of the EC concessions 
on FPDs, which were in accordance with Attachments A and B of the ITA.  The question at issue is 
whether FPDs with certain other technological features or connectors, such as a DVI that enables the 
FPD to receive signals both from an ADP machine and from other sources, would preclude them from 
duty-free treatment as granted by the EC Schedule.  WT/DS375/R 
 WT/DS376/R 
 WT/DS377/R 
 Page E-25 
  
 7. The Philippines argued that the EC cannot limit the scope of the FPDs covered by the 
concession to those that can only be used with an ADP machine.  As the European Court of Justice 
held in the Kamino case, the EC position on this matter "cannot be accepted" and would be 
tantamount to altering the EC's own rules on wh at could qualify as a flat panel display. 
8. This view is further confirmed by the language of other concessions made by the EC pursuant 
to the ITA, and can be demonstrated by the EC's until 2004.  
9. The Philippines argued that the principal unanswered question is how and why the EC opted 
to impose the particularly higher tariff of 14% fro m the category heading of reception apparatus for 
television;  video monitors from h eading 8528.2190 despite no showing of any easily intelligible basis 
or common reasoning that would lead an ordinary person to consider what is in essence a flat panel 
display to become now not a flat panel display and rather a video monitor. 
IV. ON STBS 
10. In regard to set-top boxes (STBs) with a communication function, the Philippines argued that 
in conducting its assessment, the Panel should take into consid eration and draw appropriate 
conclusions from the head-note in the EC's Schedule .  This head-note is self-explanatory: customs 
duties on STBs which have a communication function – a product contained in Attachment B to the 
ITA – must be granted duty-free treatment, wherever such STBs are classified. 
11. The Philippines drew attention to the clear and ordinary meaning of the text of the 
concession.  It covers STBs with any
 type of communication function.  And the Philippines could not 
agree with the EC that technology, with its new functionality, has created a fundamentally and 
objectively changed product.  
12. Again an examination of the EC schedule fails to justify in any ordinary meaning or layman 
approach why a STB with some improved feature sudde nly is not a set top box, but is now classifiable 
as a video tuner or video recorder related item.     
13. In addition, and still with respect to STBs, th e Philippines also believes that the EC and its 
Member States acted in a manner that was patently contrary to Articles X:1 and X:2 of GATT 1994, 
by failing to promptly publish their measures and by implementing the measures before publication.  
The Philippines urged the Panel not to exercise judicial  economy on the claims relating to Article X of 
GATT 1994 because of the grave systemic and legal implications of the matter. 
V. ON MFMS 
14. The Philippines submitted that the MFMs at i ssue fall within the scope of the concessions 
made by the EC with respect to subheadings HS 8471.60, 9009.1100 and 8517.21.00  for which the 
EC committed to grant duty-free treatment.  There is no reasonable basis to glean from the schedule 
how an MFM originally with zero duty became dutiable under CN 9009.1200  or 8443.3191 , as a 
result of its having improved in efficiency and productivity.  
15. On the second category of MFMs under HS subheading 8517.21.00  "facsimile machines," the 
Philippines submitted that there is a broad meanin g to "facsimile machine" as confirmed by the 
factual context.  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. And the number of pages these 2 
separate functions, i.e. facsimile  and photocopy, are able to pe rform are not determinative or 
definitive, as the main objective in either ca se is to do as efficiently as possible the task.WT/DS375/R 
WT/DS376/R WT/DS377/R 
Page E-26 
  
 ANNEX E-11 
 
EXECUTIVE SUMMARY OF THE THIRD PARTY  
SUBMISSION BY SINGAPORE  
 
I. INTRODUCTION 
1. The European Communities (EC) is a participan t to the Ministerial Declaration on Trade in 
Information Technology Products (ITA) and has co mmitted to eliminate customs duties on products 
covered by the ITA.  
2. The EC has however adopted measures with resp ect to flat panel displays (FPDs), set top 
boxes which have a communication function (STBCs ) and multi-functional machines (MFMs) that 
deny at least some  of these products tariff-free treatment, ev en though the products fall under the 
coverage of the ITA.  These measures are clearly in violation of the EC's commitments under the ITA 
and the General Agreement on Tariffs  and Trade 1994 (GATT 1994).  
II. AN ASSESSMENT OF THE EC'S CONTESTED MEASURES 
A. H
ORIZONTAL REMARKS  
1. The nature of the dispute 
3. This is not a case about the classification or tariff treatment of new products as such, but how 
to treat ITA products that have technologically de veloped.  The EC's approach is essentially that 
whenever a new functionality is added to a produ ct covered by the ITA, the product risks being 
excluded from the ITA.  This approach is overly r estrictive and runs counter to the ITA's object and 
purpose.   
2. The nature of the EC's commitments 
4. The meaning to be given to the product defi nitions included in Attachment B cannot be 
circumscribed by the tariff headings which the EC has added in its Schedule of Concessions.  The 
language of the ITA is clear: Attachment B represents a positive list of specific products to be covered 
by this agreement  wherever they are classified in the Harmonized System (HS).  
3. The requirements of an "as such" claim 
5. In order to substantiate an "as such" claim, it is not necessary to show that the contested 
measures always  lead to a violation of the EC's commitment s under the ITA.  Rather, it is sufficient to 
show that at least in some respects the contested measures necessarily lead to such a violation.   
4. The impact of the EC's duty suspension 
6. As regards the suspension of import duties by the EC over some FPDs, this does not 
regularise a WTO-inconsistent measure.  A WTO member is by definition free to lift the suspension of a WTO-inconsistent measure.    WT/DS375/R 
 WT/DS376/R 
 WT/DS377/R 
 Page E-27 
  
 B. FPD
S 
7. The exclusion of any FPD (whi ch would otherwise satisfy the ITA) merely because it has a 
DVI connection is a violation of the EC's ITA commitments.  
1. Attachment A 
8. Singapore agrees that FPDs constitute "output units" and notes that some FPDs may also 
constitute "input units" e.g.  touch screen monitors.   
9. The ECJ's judgment in Kamino , and the Opinion of Advocate General Mengozzi that 
preceded it, both confirm that EC customs officials apply the "solely or principally threshold" 
incorrectly towards FPDs fitted with DVI.   
2. Attachment B 
10. To the extent that an FPD is "for" a product covered by the ITA, such as a computer or an 
STBC, it is properly covered by Attachment B.   
11. In fact, DVI functionality best enables FPDs to display the digital output of computers.  FPDs 
with DVI functionality are thus properly covered by Attachment B.   
3. The EC concedes as such violation of FPD-related measures 
12. The EC's first written submission effectively concedes that, in the light of the Kamino  
judgment, its Explanatory Notes to the Combined  Nomenclature (CNEN) necessarily leads to a 
violation of the EC's ITA commitments in respect of at least some FPDs.  The EC's indication that it may amend the contested CNEN is no defe nce to an "as such" violation.   
C. STB
S 
13. There is nothing  in the ITA that precludes an STBC fro m ITA coverage simply because it has 
a recording function.  The EC's measures do so and ar e therefore in violation of its ITA commitments.  
14. The EC's tariff treatment of STBCs with a record ing function is also inconsistent with its own 
laws.  The definition of a "simple set-top box" in EC Regulation 107/2009 (on ecodesign 
requirements for certain STBs) contemplates that a simple STB can be equipped with recording 
functions. 
15. Further, the European Commission estimates that the most basic forms of STBs will be 
equipped with hard disks by 2012.  By treating STBCs with recording function as falling outside the 
ITA, the EC would, in effect, render the ITA concessions on STBCs meaningless in a few years.     
D. MFM S 
16. The EC's measures to exclude from tariff-free treatm ent, MFMs that are classifiable as either 
"input or output" units (within sub heading 8471 60)  or "facsimile machines" (within sub heading 
8517 21) under Attachment A of the ITA, are in violation of its ITA commitments.   WT/DS375/R 
WT/DS376/R WT/DS377/R 
Page E-28 
  
 1. Computer MFMs  
17. MFMs with a digital connection to a computer mu st be classified within heading 8471 if they 
satisfy the conditions under Note 5(B) to Chapter 84 of the HS, namely that they: (i) are of a kind 
"solely or principally" used with a computer; (ii) ar e connectable to a computer CPU; and (iii) are able 
to send or receive data in a recognised computer language. 
18. The ECJ's judgment in Kip, and the opinion by Advocate General Mengozzi that preceded it, 
indicate that most computer MFMs will be principally used with a computer and should be classified within heading 8471.   
19. Even if there has to be recourse to HS General Rule 3, the application of General Rule 3(b) 
would lead to the majority of computer MFMs be ing classified as printers as the printing functionality 
represents that component of computer MFMs that gives them their "essential character".   
2. Non-computer MFMs 
20. The ordinary meaning, whether as defined by the complainants or the EC, of "facsimile 
machine" and "photocopying apparatus" do not co ntemplate output limitations.  The 12 page per 
minute output limitation placed by the EC on non-computer MFMs is arbitrary and does not accord with the ordinary meaning to be given to these terms. 
21. Singapore submits that most non-computer MFMs can come under heading 8517, which 
broadly covers "electrical apparatus for line tele phony", and specifically under subheading 8517 21, 
which covers "facsimile machines", based on the ordi nary meaning of the terms of those headings. 
22. Even if there has to be recourse to HS General Rule 3, the application of General Rule 3(b) 
would result in most non-computer MFMs being classified as facsimile machines as the facsimile functionality represents that component of non-co mputer MFMs which gives them their "essential 
character".   
3. The EC concedes as such violation of MFM-related measures 
23. The EC's first written submission concedes that in the light of the criteria enounced by the 
ECJ in the Kip case, there may be computer MFMs in which the copying function must be deemed 
secondary and which should, therefore, be accorded duty-free treatment.  By the EC's own admission, 
its measures necessarily lead to a violation of the EC 's ITA commitments in respect of at least some 
MFMs. The EC's indication that it is "currently examining this matter with the assistance of the 
Customs Code Committee" is no defence to an "as such" violation.   
III. CONCLUSION ON THE ITA AND ITS OBJECTIVES 
24. Singapore submits that the EC's contested measures necessarily lead to duty treatment of 
FPDs, STBCs and MFMs that is inc onsistent with the EC's tariff commitments undertaken pursuant to 
the ITA and violate WTO law, notably Article II GATT 1994, as such. 
25. Singapore notes that this dispute can have far-re aching implications for trade in information 
technology (IT) products and the IT industry.  The ITA aims to encourage innovation and trade in IT 
products.  The interpretation of the ITA that Singa pore calls upon the panel to  uphold is consistent 
with its legal text and aspirations.   WT/DS375/R 
 WT/DS376/R 
 WT/DS377/R 
 Page E-29 
  
 ANNEX E-12 
 
EXECUTIVE SUMMARY OF THE ORAL STATEMENT  
BY SINGAPORE AT THE FIRST SUBSTANTIVE MEETING 
 
I. INTRODUCTION 
1. Singapore will start with some general points.  First
, Singapore does not seek an overly broad 
or inclusive construction of ITA commitments;  what it opposes are the EC's overly restrictive 
interpretations of them.  Second , Singapore agrees that any extension of product coverage should be 
through negotiation but here, we are dealing with pr oducts that are and remain covered by the ITA.  
This case is not about new products, but about the treatment of products that are already  included in 
the ITA but which have developed new functionalities.  Third , the products covered pursuant to 
Attachment B of the ITA cannot be circumscribed or  "exhausted" by the tariff headings in the EC's 
Schedule of Tariff Concessions giving effect to the ITA ("EC Schedule") – the headnote in the 
Schedule makes it clear that the list and the tariff h eadings which follow are not exhaustive.  Finally , 
to show that the EC's measures are inconsistent w ith its commitments, it suffices that the measures 
necessarily result in the EC imposing duties on at least some  products which must be given tariff-free 
treatment; and this is the case for all three products in issue.   
II. FLAT PANEL DISPLAYS ("FPDS") 
2. Singapore's primary objection is to the EC excluding FPDs from tariff-free treatment so long 
as they have a DVI feature.  FPDs are covered by both Attachment A and Attachment B of the ITA 
and the EC Schedule.  
3. With respect to FPDs covered by HS 8471 60 by virtue of Attachment A, nowhere do the HS 
notes to that heading state that FPDs with DVIs must  be excluded.  It would not make sense to so 
exclude when it is precisely DVI that enables computer  data to be better displa yed.  The inconsistency 
of the EC's measures is underscored by the ECJ judgment in the Kamino  case.  In light of this case, 
the EC has effectively conceded in its first written submission that its measures violate its 
commitments in respect of at least some FPDs.  Its attempt to salvage the situation by stating that the 
presence of a DVI feature is but one of the criteri a to be considered ignores the wordings in its 
measures.   
4. The EC's measures on FPDs are also inconsistent with its tariff concessions giving effect to 
Attachment B, specifically under "flat panel displays  … for products falling within this agreement".  
The EC's attempt to argue that "for" ITA products  means "only for" ITA products is to read the 
limiting word "only" into the ITA wh en that word is not there.  Ev en if it is assumed that CRT and 
non-CRT TVs are not covered by the ITA, the EC is not allowed to arbitrarily exclude an FPD simply 
because it has a DVI feature without looking at the produc t as a whole to see if it is indeed a TV or an 
FPD for a computer system.  
5. The EC's suspension of its measures does not cu re the inconsistency.  Tariff-free treatment 
means no imposition of duties, not the temporary halting of duties.  The suspension is also limited to 
certain FPDs, and tariffs continue to be levied fo r other FPDs that are entitled to tariff-free treatment.  
III. SET TOP BOXES ("STBS") 
6. Singapore objects to the EC's measures which tr eat STBs as "video recording or reproducing 
apparatus", just because they can pe rform a recording or reproducing fu nction.  This is inconsistent WT/DS375/R 
WT/DS376/R WT/DS377/R 
Page E-30 
  
 with the EC's concession giving effect to Attachme nt B of the ITA to accord tariff-free treatment to: 
"set top boxes which have a communication function…". 
7. First
, there is nothing in the text of Attachment B or the EC's Schedule that makes the absence 
of a recording or reproducing function a condition for tariff-free treatment.  Second , the simplistic and 
sweeping approach taken by the EC to treat an ST B as a video recorder by virtue of the added 
functionality is similar to its approach for FPDs,  and is erroneous for the same reasons.  Third , the 
EC's treatment of STBs is inconsistent with its own recent regulation concerning so-called ecodesign 
requirements for STBs, which recognises that STBs ca n have recording functions without losing their 
character as STBs.   
IV. MULTI-FUNCTIONAL MACHINES ("MFMS") 
8. Singapore's position is that many MFMs would fall under Attachment A of the ITA – under 
subheadings 8471 60 (for computer MFMs) or 8517 21 (for non-computer MFMs).  
9. As regards computer MFMs, Singapore concurs w ith the approach taken by the ECJ and by 
the Advocate General of that court in the Kip case.  First , many MFMs capable of being connected to 
a computer would be used "solely or principally" with computers and are therefore input or output units.  Second
, if an MFM is used solely or principally with computers, it must ipso facto  be classified 
as an input or output unit under subheading 8471 60.  Third , Kip does not give rise to any presumption 
against  classification of an MFM such that a com puter MFM cannot be classified under subheading 
8471 60 unless it is shown that the copying function is " secondary".  It is necessary to make an 
objective assessment of the characteristics of the pr oduct in issue, instead of relying only on the 
existence of a copying function or co pying speed as the criterion.  Fourth , even if the copying and 
computing functions were found to be of equal impor tance, one cannot jump to GIR 3(c) without first 
applying GIR 3(b) to determine what the "essen tial characteristic" of the product is.  Fifth , the EC 
appears to concede in its written submission that in light of Kip, its current regime is not fully 
consistent with its WTO obligations.   
10. The same approach should be taken for non-com puter MFMs which have a fax function.  A 
proper assessment according to the objective characteristics of the products must be made to determine if they should be regarded as fax ma chines falling within subheading 8517 21.  The 
machines' copying speed may be one of the relevant  factors in making this assessment but it cannot be 
the only or decisive factor.  The EC's approach, which is to regard the copying function as primary or 
equivalent to the fax function, simply on account of their having an electrostatic print engine and a 
copying speed of more than 12 pages per minute, is wholly arbitrary.  WT/DS375/R 
 WT/DS376/R 
 WT/DS377/R 
 Page E-31 
  
 ANNEX E-13 
 
ORAL STATEMENT BY THAILAND  
AT THE FIRST SUBSTANTIVE MEETING 
 
1. Mr. Chair and Members of the Panel.  Thailand appreciates the opportunity to present its 
views to the Panel today.  As a signatory of th e Information Technology Agreement ("ITA") and an 
exporter of the products at issue, Thailand has both a systemic and substantive interest in ensuring that 
other signatories abide by their ITA tariff commitme nts.  Trade benefits accruing under the ITA play a 
significant role in Thailand's development:  ITA products account for approximately 15 per cent of 
Thailand's global exports per year, with an annual value of approximately US$28 billion.  The EC's 
interpretation of its ITA commitments, if a dopted, would harm producers by limiting trade in 
information technology products, a nd we support the arguments made by the United States, Japan, 
and Chinese Taipei in their respective written s ubmissions.  In light of the complainants' 
comprehensive arguments, we will present just a few points this evening.  
2. At the outset, Thailand would like to recall that the ITA is at its core a "tariff-cutting 
mechanism."
1  This is set out in the ITA preamble, which recognizes as one of its goals " expanding  
the production of and trade in goods."2  The ITA also specifically provides that any changes in a 
signatory's treatment of covered prod ucts "should evolve in a manner that enhances  market access 
opportunities."3  To this end, Thailand endorses the United States' view that ITA participants 
"contemplated a positive evolution in market access,  not the steady narrowing of duty-free treatment" 
such as that imposed by the Eur opean Communities as a result of the measures at issue in this 
dispute.4  We also share the expansive views of th e ITA as expressed by Chinese Taipei and Japan.5    
3. The expansive and trade-liberalizing object and purpose of the ITA should inform the Panel's 
interpretation of the EC's tariff commitments in this dispute.  These commitments are set out in 
paragraph 2 of the ITA, which requires parties to "bind and eliminate customs duties and other duties 
and charges of any kind, within the meaning of Article II:1(b) of the GATT 1994" with respect to covered products.  In this regard, Thailand supports the complainants' position that the EC is obligated 
to provide duty-free treatment to STBs, FPDs, and MFMs.  The EC's commitments for these products 
are thus straightforward: the aforementioned produc ts form part of the EC's ITA commitments to 
provide duty-free treatment under Attachment A, B,  or both; the EC modified its Schedule of 
Concessions by incorporating these ITA commitments; and consequently, these commitments are part of the EC's obligations under Article II:1(a) and (b) of the GATT 1994.
6    
4. That the EC's measures at issue7 impose import duties on STBs, FPDs, and MFMs, when the 
EC is bound to provide these products with duty -free treatment, is in Thailand's view clearly 
inconsistent with the EC's oblig ations under GATT Article II:1(a), which obligates the EC to provide 
treatment that is "no less favourable than that provi ded for in the appropriate part of the appropriate 
                                                      
1 WTO ITA: Introduction, http://www.wto.org/english/tratop_e/inftec_e/itaintro_e.htm  ("The ITA is 
solely a tariff cutting mechanism"). 
2 ITA preamble, para. 3 (emphasis added). 
3 ITA, Article 1 (emphasis added). 
4United States' first written submission, 5 March 2009, para. 28. 
5 Chinese Taipei's first written submission, 5 March 2009, para. 27 (stating that the object and purpose 
of the ITA is to "expand and enhance trade in IT products"), and Japan's first written submission, para. 46 
(describing how the ITA seeks to "create and preserve ma rket access for the covered te chnology products, not to 
create temporary duty reductions that would disappear over time"). 
6 See United States' first written submission, paras. 31-32. 
7 As set out in Chinese Taipei's first written submission,, paras. 66-121. WT/DS375/R 
WT/DS376/R WT/DS377/R 
Page E-32 
  
 Schedule."  The EC's measures are also inconsiste nt with its obligation under GATT Article II:1(b), 
which requires that scheduled products "be exempt  from ordinary customs duties in excess of those 
set forth and provided therein."  We note that, like several other Members, Thailand is particularly 
concerned about the EC's tariff treatment of the product s at issue, in the circumstances of this case.  In 
other words, the EC must abide by its tariff co mmitments and provide duty-free treatment for the 
products at issue.  We hope, like the complainants, that the Panel also reaches this conclusion.   
5. On that note, Mr. Chair, we would like to end our statement.  Once again, Thailand thanks the 
Panel for this opportunity to present our views.    WT/DS375/R 
 WT/DS376/R 
 WT/DS377/R 
 Page E-33 
  
 ANNEX E-14 
 
EXECUTIVE SUMMARY OF THE  
THIRD PARTY SUBMISSION BY TURKEY 
 
I. INTRODUCTION 
1. Turkey believes that the issues subject to complaint by Japan, the United States and the 
Separate Customs Territory of Taiwan, Penghu, Kinmen  and Matsu have to be analyzed with a view 
to ensure that the rights of the Members of th e Ministerial Declaration on Trade in Information 
Technology Products (hereinafter referred to as "ITA") are not adversely affected. 
2. While not taking a final position on the facts of th is case, Turkey considers that this dispute is 
related to the scope of the ITA.  
II. INFORMATION TECHNOLOGY AGREEMENT 
3. Ministerial Declaration on Trade in Info rmation Technology Products was signed in 
13 December 1996 by 14 Members of the World Tr ade Organization (WTO), including Turkey as a 
signatory party. 
4. In order to expand the product coverage of the ITA, parties have to follow the procedures set 
forth in the Paragraph 3 of the Annex to the IT A. Paragraph 3 reflects the common understanding of 
the parties regarding the modification of  product coverage of the Agreement.  
5. However, Turkey considers that ITA Members ha ve not been able to put into practice the 
provisions of the Paragraph 3 so far.  Hence, th ere has been no formal modification on any of the 
Attachments.  Turkey is of the opinion that Paragr aph 3 (and also Paragraph 5) of the Annex of the 
ITA can hardly yield satisfactory results unl ess some amendments are put into effect. 
6. On 15 September 2008, the European Co mmunities submitted a document (Document 
Symbol is G/IT/W/28 and TN/MA/W/107) to the attention of the Committee of Participants on the 
Expansion of Trade in Information Technolog y Products and the Negotiating Group on Market 
Access proposing to negotiate the ITA with the purpose of an update. 
7. Turkey considers that re-negotiation of the ITA may well be an avenue to pursue when taking 
into account the current Doha Round conditions.  Th e need for the revision of the Attached Lists 
arises, inter alia , from the fast evolving nature of in formation technology products, doubts on the 
classification of a group of products, and the failure to  reflect changes made to HS classification in 
2002 and 2007. 
III. ASSESSMENTS CONCERNING THE COMPLAINANTS CLAIMS  
8. Turkey notes that flat panel display devices wh ich incorporate digital visual interface (DVI) 
are not only able to produce output from informati on technology products falling within the ITA, but 
also from consumer electronics products havi ng DVI or HDMI (High-Definition Multimedia 
Interface) interfaces.  
9. Turkey shares the view that "Televisions  and other monitors or display units able to receive 
and process television signals or other analogue or digitally processed audio or video signals 
with the 
assistance of or directly from  another product other than the central processing unit of a computer are WT/DS375/R 
WT/DS376/R WT/DS377/R 
Page E-34 
  
 explicitly excluded  from the scope of the commitments to eliminate customs duties on certain 
products."
1  Turkey considers that flat panel di splay devices which are dual use products do not fall 
under the existing Information Technology Agreement. 
10. Since the receiving, watching and recording of television broadcasts are the primary purposes 
of use for these set top boxes, access to internet and interactive information exchange features must be 
regarded as secondary and to be of limited use.  Turkey  is of the view that set top boxes of this kind 
do not fall under the scope of the existing ITA. 
IV. CONCLUSIONS 
11. Turkey considers that contrary to the claims  of the complainants, the products at issue do not 
fall under the current Information Technology Agre ement.  Any technologically newly developed 
product which has multi-usage that may partially inco rporated by the Attachments of the ITA (mainly 
Attachment B cannot automatically be considered as covered by the ITA.  
12. Turkey requests this Panel to review the claims taking into account observations and 
comments stated in this submission.  On the ot her hand, the litigation process should not diminish 
Members' rights beyond obligations undertaken at the time of the signing of the ITA. Turkey reserves 
its right to make further comments at the third pa rty session of the first substantive meeting with the 
Panel. 
                                                      
1 Economic Communities' first written submission, para. 132.  WT/DS375/R 
 WT/DS376/R 
 WT/DS377/R 
 Page E-35 
  
 ANNEX E-15 
 
ORAL STATEMENT BY TURKEY  
AT THE FIRST SUBSTANTIVE MEETING 
 
1. I am glad to present you with the views of Tu rkey at this stage of the panel proceedings 
regarding the complaint launched by Chinese Taipei , Japan and the United States of America. I will 
summarize Turkish position on the subject, to the extent possible, by refraining from repetition of 
details presented in our written submission. 
2. To begin with, I would like to state here that Tu rkey is a signatory party of the "Ministerial 
Declaration on Trade in Information Technolog y Products (ITA)" from the time it was signed in 
13 December 1996 by 14 Members of the World Trad e Organization (WTO).  Turkey still shares the 
view that information technology makes positive contribution to global  economic growth and welfare.  
3. Based on the panel establishment requests submitted by the complainants, products subject to 
complaint in this panel are called Flat Pane l Displays (FPDs), Set-Top Boxes (STBs) and 
Multifunctional Digital Machines (MTMs).  
4. Complainants submit that the European Comm unities imposes customs duties of about 14% 
on FPDs and STBs, and 6% on MTMs, while the EC is  under obligation to grant duty-free tariff rate 
for these products as required by its schedul e of commitments resulting from the ITA. 
5. Turkey finds it necessary to point out shortly the following issues relating to the products at 
issue, so as to underline the fact that ta riff commitments under ITA are being applied. 
6. Monitors pertaining to goods falling under IT A have been accorded duty free access courtesy 
of headings 8528.41.00 and 8528.51.00.  
7. STBs embedded with the following attributes should be designated as STBs being accorded 
with the concessions offered by ITA:  being microprocessor-based, incorporating a modem for 
accessing the internet, having a function of inter active information exchange.  STBs housing all 
definitional elements, vividly cited in the agreem ent, are classified under the heading 8528.71.13, 
which accords duty free access.  
8. MFMs are granted duty free access  under the heading 8443.31.10.  However, those that are 
incorporated with copying function as its pr imary attribute will be dutiable under the 
heading 8443.31.91.  
9. Turkey believes that this dispute has occu rred thanks to the rapid development and 
convergence in "consumer electronics" and "infor mation technology" products.  Most consumer 
electronics products, like televisions, are not covere d by the ITA.  On the other hand, with the 
addition of certain features that was not foreseen at the time of signing of the ITA, producers created 
products that can operate either e.g. as an inform ation technology product or as a TV.  Likewise, some 
STBs and MTMs gained such quality and producer s of these devices have sought duty-free access to 
markets under the ITA. 
10. Complainants and some third parties insist that  products that can be used as an information 
technology or as an ordinary electronics device must be  granted zero tariff rate.  However, they fail to 
explain how for example an FPD that can also be used as a television fall under ITA.  Accepting this 
logic simply means granting zero tariff for televisions, which are not covered by the ITA.  WT/DS375/R 
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Page E-36 
  
 11. Moreover, the importation of multi-use products with zero tariff rates granted under ITA 
concesssions may also constitute a form of "circumvention" of customs obligations. 
12. Article 3.2 of the DSU provides that "Recommenda tions and rulings of the DSB cannot add to 
or diminish the rights and obligations provided in the covered agreements."  Our view is that, if 
accepted, complainants' claims will serve to add to the obligations of many signatory parties of the 
ITA by expanding the product coverage of the Agreem ent, without resorting to ITA Annex Article 3. 
13. In order to find an effective solution to the current disagreement, as stated in our written 
submission, complaining parties should consider ne gotiation and update of the ITA product coverage, 
and parties should devise a feasible mechanism to replace Article 3 of the ITA Annex. 
14. Turkey also considers that views expressed by Ko rea with regard to the legal basis of this 
dispute are worth mentioning.  In its third party written submission, Korea states that the ITA is not among the agreements annexed to the WTO Agreemen t and is not one of the "covered agreements" 
within the meaning of Appendix 1 of the DSU.
1  Korea also quotes the following expression from the 
Panel Report US – Lead and Bismuth II :  "the Ministerial Declaration is a mere 'Declaration', rather 
than a 'Decision' of the Ministers.  In our view , a Declaration lacks the mandatory authority of a 
Decision."2  Korea further argues that "the ITA partic ipants revised their tariff commitments for 
certain technology products through formal modifica tion of their Schedules of tariff concessions" and 
that "It is these revised tariff commitments that govern the WTO market access obligations of each 
ITA participant with respect to the products concerned."3  
15. With this approach, it occurs that the ITA is not  even a Ministerial Decision and thus it is not 
binding. If this Ministerial Declaration is not bi nding then the question as to how Signatories are 
bound with its Annexes or other obligations arises.  As  a result, Turkey is of the view that the Panel 
should consider clarifying the legal basis of this di spute taking into consideration Korea's approach.  
16. Turkey wishes to thank the Panel for the opportunity to submit its views during this hearing. 
 
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1 Korea's third party submission, para. 4. 
2 Korea's third party submission, footnote 2. 
3 Korea's third party submission, para. 5.