RESTRICTED  WORLD TRADE  
ORGANIZATION  WT/DSB/M/253 
28 July 2008 
 (08-3609) 
Dispute Settlement Body 
24 June 2008  
 
 
 
 
 
 
MINUTES OF MEETING 
 
Held in the Centre William Rappard  
on 24 June 2008  
 
Chairman:  Mr. Mario Matus (Chile) 
 
 Subjects discussed
: Page  
 
1. Surveillance of implementation of recommendations adopted by the DSB.........................2  
(a) United States – Section 211 Omnibus Appropr iations Act of 1998:  Status report by 
the United States .............................................................................................................. ...........2  
(b) United States – Anti-dumping measures on certain hot-rolled steel products from 
Japan:  Status report by  the United States...................................................................................5  
(c) United States – Section 110(5) of the US Copyright Act:  Status report by 
the United States .............................................................................................................. ...........5  
(d) European Communities – Measures affecting the approval and marketing of biotech 
products:  Status report by the European Communities..............................................................6  
2. United States – Continued Dumping and Subsidy Offset Act of 2000:  Implementation of the recommenda tions adopted by the DSB ............................................7
 
(a) Statements by the European Communities and Japan ................................................................7  
3. European Communities – Regime for the importation, sale and distribution of 
bananas:  Recourse to Article 21.5 of the DSU by the United States ...................................9  
(a) Joint request by the United States and the European Communities............................................9  
4. Proposed nomination for the indicative list of governmental and 
non-governmental panelists ...................................................................................................10  
 
 WT/DSB/M/253 
Page 2  
 
  1. Surveillance of implementation of recommendations adopted by the DSB 
(a) United States – Section 211 Omnibus Appropr iations Act of 1998:  Status report by the 
United States (WT/DS176/11/Add.67) 
 (b) United States – Anti-dumping measures on certain hot-rolled steel products from Japan:  
Status report by the United States (WT/DS184/15/Add.67) 
 (c) United States – Section 110(5) of the US Copyright Act:  Status report by the United States 
(WT/DS160/24/Add.42) 
 
(d) European Communities – Measures affecting th e approval and marketing of biotech products:  
Status report by the European Communities (WT/DS291/37/Add.5 – WT/DS292/31/Add.5 – WT/DS293/31/Add.5) 
 1. The Chairman
 recalled that Article 21.6 of the DSU required that "unless the DSB decides 
otherwise, the issue of implementation of the re commendations or rulings shall be placed on the 
Agenda of the DSB meeting after six months follo wing the date of establishment of the reasonable 
period of time pursuant to paragraph 3 and shall remain on the DSB's Agenda until the issue is 
resolved".  The Chairman proposed that the four sub- items to which he had just referred be considered 
separately. 
(a) United States – Section 211 Omnibus Appropria tions Act of 1998:  Status report by the 
United States (WT/DS176/11/Add.67) 
2. The Chairman  drew attention to document WT/DS176/ 11/Add.67, which contained the status 
report by the United States on progress in the impl ementation of the DSB's recommendations in the 
case concerning US Section 211 Omni bus Appropriations Act of 1998. 
3. The representative of the United States  said that his country had provided a status report in 
this dispute on 12 June 2008, in accordance with Artic le 21.6 of the DSU.  As noted in that status 
report, a number of legislative proposals that would implement the DSB's recommendations and rulings in this dispute had been introduced in th e current Congress, in both the US Senate and the US 
House of Representatives.  The US administration co ntinued to work with the Congress to implement 
the DSB's recommendations and rulings. 
4. The representative of th e European Communities
 said that, once again, the EC could not but 
stress that the United States had not made any pr ogress in the implementation of the DSB's ruling 
despite the fact that more than six years had elap sed since the United States had been found in breach 
of the TRIPS Agreement.  The EC hoped that the bipartisan bills introduced to repeal Section 211 
would finally progress and put the United States into compliance with its TRIPS obligations. 
5. The representative of Cuba said that the DSB had before it the status report submitted by the 
United States.  However, Cuba did not consider that this document, submitted each month by the 
United States, could be called a status report.  Unde r Article 21.6 of the DSU, the report should reflect 
the progress made in the implementation of the DS B's recommendations and rulings.  However, the 
text under consideration made no me ntion of any such progress.  The report, the content of which had 
never changed, just as there had never been any ch ange in terms of the US Government's lack of 
political will to resolve this and other cases, show ed that the dispute settlement system, in some 
instances at least, had not managed to resolve disp utes or reduce existing imbalances.  Within the 
framework of the Doha Round, a number of Me mbers had expressed concern regarding the WTO 
credibility.  However, they should be more concer ned about, and deal with, the real reasons for the 
eroding role and effectiveness of the WTO.  Cases,  such as the Section 211 dispute, concerning the  WT/DSB/M/253 
 Page 3 
 
 
  non-implementation of the DSB's recommendations a nd rulings for an indefinite period of time, 
which affected not only the complaining party, but a ll Members, demonstrated that the system did not 
fulfil the role and objectives that it should.  The legal obligations of "prompt compliance" under the 
DSU, and of national and most-favoured-nation tr eatment under the WTO Agreements, were dead 
letters when it came to the intentions an d violations of the major trading powers. 
6. Intellectual property issues were currently, in economic and political terms, more important 
than ever before.  It had been included on the ag enda of the G8 Summits, and new agreements to 
combat counterfeiting had been negotiated in closed session between the most powerful figures in world trade, and the debate had extended to other organizations such as the WHO and the WCO.  The 
developed countries showed a grow ing concern about this matter;  there were demands for new 
penalties for offenders, and the international co mmunity was being called upon to take urgent 
measures to curb piracy and counterfeiting.  In a context such as this, and as noted by the Appellate 
Body over six years ago, it was inconceivable that  the United States should maintain in effect 
measures that did not respect issues "fundamental to the TRIPS Agreement".  Cuba, which was not a complaining party in this dispute, and therefore could not resort to the suspension of obligations, 
could have opted to take unilatera l measures affecting the rights of US holders that had registered 
their trademarks in Cuba.  This was not, however , the route Cuba had chosen in response to the 
flagrant violations committed by the United States in the field of intellectual property.  Thanks to its geography and traditions, Cuba prod uced goods of high reputation, which were not sold on the US 
market due to the economic, commercial and financ ial embargo imposed on the country.  This had 
encouraged the trend of marketing products and services in the United States using the indication 
"Havana", which contravened domestic  and international regulations.  To make matters worse, the US 
courts often failed to acknowledge  misappropriation, false indicati ons of origin and consumer 
deception. 
7. The United States not only labeled its products and services with the name "Havana", but had 
gone on to register it as a trademark.  This year, for instance, the US Patent and Trademark Office had 
granted the trademarks "Havana Collection" and "O ld Havana" to companies domiciled in New Jersey 
and Nevada, respectively.  Section 211, as an expr ession of this phenomenon, had gone even further, 
affecting the payment for the legitimate renewal by a Cuban company of a trademark lawfully 
registered in 1976.  It was no secret, and indeed it  had been clear from the outset, that the objective 
was to benefit, for political reasons, the Bacardi company, which was determined to usurp Cuba's 
famous rum trademark with the approval of the US G overnment and the support of US laws.  The idea 
that all Members had the same obligations and rights under the WTO system was only valid for a 
student's manual.  Those who were here on a daily basis knew that only a few voices were listened to 
and that these same voices were the ones that decided when to settle a dispute.  Some might think that 
this complaint was futile, that nothi ng could be done in this case, th at no conclusion would be reached 
when the Member doing its utmost to demand imme diate action, namely the implementation of the 
WTO Agreements and the DSB's rulings, was a small developing country, such as Cuba.  Despite the 
foregoing, Cuba believed that it was vital to proceed  with the complaint.  Cuba could not settle for 
indifference and would continue to insist upon the application of law and justice, as it did in other 
international fora. 
8. The representative of Viet Nam
 said that his country, once again, called on the United States 
to take the necessary and urgent steps to comply  with its obligations under the TRIPS Agreement. 
9. The representative of the Bolivarian Republic of Venezuela  said that her country wished to 
thank the United States for its status report and th e statement made at the present meeting.  Her 
country also thanked Cuba for its statement.  Vene zuela wished to renew its systemic concerns about 
the protracted situation of non-compliance in this di spute.  Venezuela urged the United States to take 
immediate action to ensure the implementation of  the DSB's recommendations.  This would permit 
the resolution of the complainant's legitimate claim and would reinfo rce the importance of the dispute WT/DSB/M/253 
Page 4  
 
  settlement mechanism, which guara nteed Members' rights under the multilateral trading system.  
Finally, she said that US compliance in this di spute would have a positive effect on the overall 
effectiveness of the WTO dispute settlement system. 
10. The representative of India
 said that her country thanked the United States for the status 
report and the statement made at the present meeti ng.  India appreciated the steps taken by the 
United States thus far to repeal Section 211 as a step  in the positive direction.  However, as mentioned 
on several occasions, there was no substantive change in the situation, and India felt compelled again 
to stress that the principle of prompt compliance was missing in this dispute.  India, therefore, wished 
to renew its systemic concerns about this s ituation of non-compliance.  This continuous non-
compliance situation by the WTO Members clearly  undermined the credibility and confidence that 
Members reposed in the system. 
11. The representative of Thailand  said that his country wished to thank the United States for its 
status report and the statement made at the present meeting.  Like previous speakers, Thailand wished 
to express its concern over the systemic implications of this dispute.  Non-implementation of the DSB's rulings and recommendations undermined th e rules-based multilateral trading system.  
Thailand, therefore, called on the United States to ta ke the necessary and urgent steps to comply with 
its obligations under the TRIPS Agreement. 
12. The representative of Brazil
 said that his country thanked the United States for the status 
report and, once again, expressed its systemic concerns about the c ontinuous non-compliance 
situation in this dispute.  Brazil urged the Unite d States to comply with the DSB's recommendations 
and rulings and thus to actively contribute to the strengthening of the WTO dispute settlement system. 
13. The representative of China  said that his country wished to  thank the United States for its 
status report and, once again, wished to reiterate its systemic concerns with the delayed process of 
implementation in this dispute.  China hoped that the present US Congress would realize that it was in 
the interest of not only other Members, but also in the interest of the United States to put an end to 
this situation, which was damaging the authority of  the TRIPS Agreement and the creditability of the 
WTO dispute settlement system.  Therefore, China ur ged the United States to make an extra effort to 
bring itself promptly into conformity with the decision of the DSB. 
14. The representative of United States  said that with respect to the systemic concerns concerning 
non-compliance, as the United States had pointed  out previously, the record was clear:  the 
United States had come into compliance, fully and prom ptly, in the vast majority of its disputes.  As 
for the remaining few instances where US efforts to do so had not yet been entirely successful, the 
United States continued to work  actively towards compliance. 
15. The representative of Cuba  said that his delegation wished to make an additional comment.  
He said that despite oral and written statements by the United States, the US Government had made 
no effort to comply with the DSB's rulings.  It ha d never advanced any legislation towards repealing 
Section 211.  In fact, it had done the opposite.  It had worked with various members of the Republican 
Party in order to undermine any efforts aimed at bringing the legislation in question into compliance 
with the DSB's rulings and the TRIPS Agreement.  
16. The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting.  WT/DSB/M/253 
 Page 5 
 
 
  (b) United States – Anti-dumping measures on certain hot-rolled steel products from Japan:  
Status report by the United States (WT/DS184/15/Add.67) 
17. The Chairman  drew attention to document WT/DS184/ 15/Add.67, which contained the status 
report by the United States on progress in the impl ementation of the DSB's recommendations in the 
case concerning US anti-dumping measures on certain hot-rolled steel products from Japan. 
18. The representative of the United States  said that his country had provided a status report in 
this dispute on 12 June 2008, in accordance with Ar ticle 21.6 of the DSU.  As of 23 November 2002, 
the US authorities had addressed the DSB's recommendations and rulings with respect to the calculation of anti-dumping margins in the hot-rolled steel anti-dumping duty inv estigation at issue in 
this dispute.  Details were provided in document  WT/DS184/15/Add.3.  The US administration would 
work with the US Congress with respect to the r ecommendations and rulings of the DSB that had not 
already been addressed by the US authorities by 23 November 2002. 
19. The representative of Japan
 said that his country thanked the United States for its statement 
and the latest status report.  Japan acknowledged that in November 2002 the United States had taken 
certain measures to implement part of the DSB's recommendations, as reported by the United States.  
The fact remained, however, that the remaining part of the recommendations had not yet been 
implemented and the issue of implementation in this case was still on the DSB's Agenda.  Japan strongly hoped that the United States would soon be in a position to report to the DSB on more tangible progress in this long-standing dispute.  A full and prompt implementation of the DSB's 
recommendations and rulings was essential for ma intaining the credibility of the WTO dispute 
settlement system.  Japan wished to urge the Un ited States to come into full compliance without 
further delay. 
20. The DSB took note
 of the statements and agreed  to revert to this matter at its next regular 
meeting. 
(c) United States – Section 110(5) of the US Copyright Act:  Status report by the United States 
(WT/DS160/24/Add.42) 
21. The Chairman  drew attention to document WT/DS160/ 24/Add.42, which contained the status 
report by the United States on progress in the impl ementation of the DSB's recommendations in the 
case concerning Section 110(5) of the US Copyright Act. 
22. The representative of the United States  said that his country had provided a status report in 
this dispute on 12 June 2008, in accordance with Article 21.6 of the DSU.  The US administration would work closely with the US Congress and would c ontinue to confer with the EC, in order to reach 
a mutually satisfactory resolution of this matter.  In  this regard, the United States shared the EC's goal 
of discussing how a mutually satisfactory solu tion to this dispute could be achieved. 
23. The representative of the European Communities
 said that there was nothing much to say, 
because nothing much had been happening in th e past years.  The EC was still waiting for 
compliance.  
24. The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting. WT/DSB/M/253 
Page 6  
 
  (d) European Communities – Measures affecting the approval and marketing of biotech products:  
Status report by the European Communities (WT/DS291/37/Add.5 – WT/DS292/31/Add.5 – WT/DS293/31/Add.5) 
25. The Chairman
 drew attention to document WT/DS291/37/Add.5 – WT/DS292/31/Add.5 – 
WT/DS293/31/Add.5, which contained the status report by the European Communities on progress in 
the implementation of the DSB's recommendations in  the case concerning the EC's measures affecting 
the approval and marketing of biotech products. 
26. The representative of th e European Communities  said that the EC was happy to report, once 
more, that good faith cooperation between the compla inants and the EC continued.  The EC kept a 
regular dialogue with the three complainants and he ld regular technical meetings, which were aimed 
at addressing all relevant biotech-related issues of th eir concern.  On 18 and 19 June, the EC and the 
United States had held the sixth technical meeting on biotechnology issues.  Progress in the processing of pending applications continued.  Sixt een authorizations had been granted since the 
establishment of the WTO panel, seven in 2007 onl y.  One draft authorization decision on oilseed 
rape T-45 had been discussed on 16 June 2008 and w ould be voted at the re levant Council Committee 
on 14 July.  Two more draft authorization decisions would be voted in the Council next month.  The 
EC was also pleased to report further progress in re lation to the national safeguard measures covered 
by the Panel Report.  On 27 May, Austria had adopted a decision lifting its bans on imports and 
processing of GM maize MON810 and T-25.  The EC  believed that given the inevitably sensitive 
nature of biotech issues, dialogue was the appropr iate way forward and remained open to continue 
discussions with the three complainants. 
27. The representative of Canada
 said that her country thanked the EC for its status report.  With 
respect to DS292, Canada agreed with the EC that progress continued to be made on this file.  It was 
due to this progress that Canada had decided that it was worthwhile to extend the reasonable period of 
time for implementation until the end of July 2008.  Canada would continue to watch this progress 
carefully. 
28. The representative of Argentina  said that his country wished to thank the EC for its status 
report.  The new facts presented by the EC at the present meeting demonstrated that steps had been taken in the right direction to ensure that progr ess was being made towards implementation in this 
dispute.  Argentina and the EC had decide d to extend the reasonable period of time for 
implementation until 12 August 2008, as had already been indicated by the EC.  
29. The representative of the United States
 said that his country thanked the EC for its written 
status report and for its statement made at the present meeting.  The United States had filed its 
consultation request in this matter over five years ago, yet the issues remained unresolved.  The recent 
rise in world food prices reinforced the importance of the EC implementing its WTO commitments to 
adopt timely, science-based decisions on agri cultural products deve loped using modern 
biotechnology.  The United States continued to have serious concerns with the operation of the EC's 
approval system for biotech products.  The EC ha d not made a single decision on a pending biotech 
application since March 2008.  As a result, the EC had made no progress in clearing the backlog of pending applications.  Indeed, the backlog had gr own worse.  The EC now had 50 biotech product 
applications backed up in its approval system. 
30. The United States recalled that the DSB had not only found undue delays in the EC's biotech 
approval process, but had also found that bans adopted by six EC member States on products 
approved at the Community level were in breach of  obligations under the SPS Agreement.  In its 
status report, the EC stated that the DSB had f ound that bans imposed by Austria on the "import and 
processing" of two varieties of maize were "WTO-i ncompatible," and that Austria had now removed 
those bans.  The United States had not yet had the o pportunity to review the recent Austrian actions  WT/DSB/M/253 
 Page 7 
 
 
  described in the EC's status report.  The United St ates noted, however, that the bans found by the DSB 
to be WTO-inconsistent covered all uses of these mai ze varieties.  Yet the EC's status report and its 
statement made at the present meeting only mentione d the removal of those aspects of the Austrian 
ban covering "import and processing".  Thus, based on the EC's status report and its statement, it 
appeared that Austria might have left in place a ban on other uses of these maize varieties, including 
the planting of these varieties within Austria.  In othe r words, it appeared that Austria had left in place 
an important part of the measure that the DSB had found to be in violation of the SPS Agreement.  A 
failure to remove all aspects of the Austrian ban woul d be of serious concern to the United States.  As 
noted, the United States continued to have serious c oncerns with the actions of the EC and its member 
States.  Accordingly, the United States urged the EC  to take prompt steps to address those concerns, 
so that there would be no need for the United St ates to pursue further proceedings under the DSU. 
31. The representative of the European Communities  said that the EC had acted upon all the 
various national measures covered by the WTO Pa nel's ruling.  All those measures had become 
obsolete, with the only exception being the Austrian measures on GM maize MON810 and T-25.  Concerning the Austrian measures, Austria had lifted the bans on import and processing of GM maize 
MON810 and T25 (decisions of 27 May, published on 30 May).  As regards the cultivation issue, the 
EFSA had been requested to issue an opinion on the scientific info rmation provided by Austria on 
cultivation of those GMO events by 31 July 2008. 
32. The DSB took note
 of the statements and agreed  to revert to this matter at its next regular 
meeting. 
2. United States – Continued Dumping and Subsid y Offset Act of 2000:  Implementation of 
the recommendations adopted by the DSB 
(a) Statements by the European Communities and Japan 
33. The Chairman  said that this item was on the Agenda of the present meeting at the request of 
the European Communities and Japan.  He inv ited the respective representatives to speak. 
34. The representative of Japan  said that, on 4 June 2008, the US Customs and Border Protection 
had published preliminary CDSOA distribution am ounts available for the fiscal year of 20081, thus 
publicly initiating processes for a new round of distri butions under the CDSOA.  This latest action 
demonstrated that the CDSOA remained operational.   Japan urged the United States to immediately 
terminate the illegal distributions and to repeal the CD SOA not just in form, but in substance, so as to 
resolve this dispute once and for all.  According to Article 21.6 of the DSU, the United States was 
under obligation to provide the DSB with a status report in this dispute "until the issue is resolved".  
Japan reserved all its rights under the DSU until the United States came into full compliance. 
35. The representative of the European Communities  said that the United States had recently 
taken the first step in the preparation of the next  round of distribution under the Byrd Amendment that 
would take place in the Autumn.  The EC wished to ask the United States how this continuing 
distribution of anti-dumping and countervailing duties in violation of the WTO rules reconciled with 
the US assertion of having taken all steps required to  bring itself into compliance with its obligations 
under the WTO.  The EC would also like to ask ag ain the United States if and what steps it intended 
to take to stop the transfer of anti-dumping and co untervailing duties to its industry.  The EC also 
renewed its call on the United States to abide by its  clear obligation under Article 21.6 of the DSU 
and to submit implementation reports in this dispute. 
                                                      
1 See US Customs and Border Protection's website at: 
http://www.cbp.gov/linkhandler/trade/pr iority_trade/add_cvd/cont_dump/prelim_report08.ctt/prelim_report08.pdf WT/DSB/M/253 
Page 8  
 
  36. The representative of China
 said that his country thanked the EC and Japan for, once again, 
raising this item at the DSB meeting.  China sh ared the views expressed by previous speakers and 
wished to join them in urging the United St ates to comply fully with the DSB's rulings. 
37. The representative of India  said that her country thanked the EC and Japan for maintaining 
this issue before the DSB once again.  India noted  with appreciation the positive steps taken by the 
United States and was pleased that duty deposits collected by the United States after 30 September 
would no longer be subjected to the Byrd Amendm ent.  While this was a significant step forward, 
duties collected before 1 October 2007 would, nevert heless, continue to be subject to the Byrd 
Amendment.  This had a trade-distorting effect on fo reign producers and exporters.  India, therefore, 
urged the United States to cease its WTO-inconsistent  disbursements.  India supported the view that 
continued surveillance by the DSB was needed.   
38. The representative of Thailand  said that, at the outset, his country thanked the EC and Japan 
for bringing this item before the DSB once more .  On 30 May 2008, the US Customs and Border 
Protection had announced its intention to distribute AD/CVD duties under the Byrd Amendment for fiscal year 2008.  Unfortunately, this announcement was no surprise:  it was well known that such 
duties collected on goods that entered the United St ates before October 2007 would continue to be 
disbursed to the domestic industry.  Neverthe less, Thailand wished to express its continued 
disappointment at the US persistent maintenan ce of those WTO-inconsis tent disbursements.  
Thailand, therefore, urged the United States to cease those disbursements, to repeal the Byrd 
Amendment with immediate practical effect, and to resume providing status reports until such actions 
were taken and this matter had been fully resolved. 
39. The representative of Canada
 said that her country thanked the EC and Japan for continuing 
to put this matter on the DSB's Agenda.  Canada agreed with the EC an d Japan that the Byrd 
Amendment remained subject to the surveillan ce of the DSB until the Un ited States ceased to 
administer it. 
40. The representative of Brazil  said that anti-dumping and countervailing duties collected in the 
United States before 1 October 2007 were still be ing distributed to domestic firms under the Byrd 
Amendment, and apparently they would continue to be distributed over the next fiscal year.  This was 
in contradiction with the DSB's recommendations and rulings, and was affecting the rights of other 
WTO Members.  Brazil understood that urgent action must be taken in order to make sure that no 
more disbursements were made under the CDSOA.  In thanking the EC and Japan for bringing this 
issue to the attention of the DSB, once again, Br azil reiterated the need for full compliance in all 
disputes and by all Members. 
41. The representative of the United States  said that, as his country had already explained at 
previous DSB meetings, the US President had signed the Deficit Reduction Act into law on 
8 February 2006.  That Act included a provisio n repealing the Continued Dumping and Subsidy 
Offset Act of 2000.  Thus, the United States had ta ken all actions necessary to implement the DSB's 
recommendations and rulings in these disputes.  The United States recalled, furthermore, that 
Members, including the EC and Japan, had acknowle dged during previous DSB meetings that the 
2006 Deficit Reduction Act did not permit the distribu tion of duties collected on goods entered after 
1 October 2007.  The United States, therefore, did not understand the purpose for which the EC and Japan had inscribed this item on the Agenda of the present meeting.  
42. With respect to the comments regarding further status reports on this matter, as his delegation 
had already explained, the United States had taken all steps necessary to implement the DSB's 
recommendations and rulings in these disputes.  In this light, the United States failed to see what 
purpose would be served by further submission of  status reports repeating the progress the 
United States had made in the implementati on of the DSB's recommendations and rulings.   WT/DSB/M/253 
 Page 9 
 
 
  43. The United States would also like to comment on Me mbers' statements that this legislation – 
though repealed – continued to cause trade distorti ons.  The United States did not understand the basis 
for this statement.  The United States recalled, as  it had done in previous meetings, that with one 
exception, none of the complaining parties in this  dispute had claimed that the CDSOA caused trade-
distorting effects under the SCM Agreement.  Furthe rmore, though one Member had claimed that the 
CDSOA caused trade-distorting effects under the SC M Agreement, those adverse effects claims had 
been rejected.  Members' comments alleging any trad e-distorting effects were thus not based on any 
DSB recommendations and rulings.  The United States,  therefore, failed to understand the basis for 
Members' statements that their trade with the United States was being distorted by virtue of the now-repealed CDSOA.   
44. Finally, the United States wished to comment on one statement made by the EC at the present 
meeting.  The United States would note that in a di spute for which the panel report had recently been 
circulated, the EC strongly advocated the position that a Member could not state at a DSB meeting that a measure taken to comply by another Memb er was not consistent w ith that Member's WTO 
obligations, unless the Member had had recourse to dispute settlement proceedings with respect to 
that measure.  The United States understood the EC's statement made at the present meeting – and the 
many similar statements that the EC had made at recent meetings – as a reversal of the EC's position, and looked forward to seeing that rever sal reflected in the ongoing appeal. 
45. The representative of th e European Communities
 said that the EC considered as good news 
the underlying shift in the US position, and welcomed the United States among the group of WTO Members who rejected unilateral determinations.  The fact, however, was that the EC had made no 
such determination, the situations  in both disputes had nothing in common.  In the Byrd Amendment 
dispute, the entry into force of the implementing act had been postponed by several years.  The EC 
only took at face value the US legislation.  The EC did not see how the United States could seriously 
claim that the EC had made a unilateral determin ation of non-implementation when the implementing 
act itself stated that it would produce effects only at  some undetermined date in the future.  A measure 
taken to comply that produced legal effects simply  did not yet exist, and the United States could not 
claim in good faith that such a measure existed.  Furthermore, the EC's sanctions were revised every 
year on the basis of the latest distribution under the Byrd Amendment.  They would, therefore, 
automatically disappear at the same rhythm as th e implementing act effectively came into effect. 
46. The DSB took note
 of the statements.  
3. European Communities – Regime for the importation, sale and distribution of bananas:  
Recourse to Article 21.5 of the DSU by the United States 
(a) Joint request by the United States and the European Communities (WT/DS27/88) 
47. The Chairman  drew attention to the communication from the United States and the 
European Communities contained in document WT/D S27/88 and invited the representative of the 
United States to speak. 
48. The representative of the United States  said that his country joined the EC in asking that the 
DSB agree to provide additional time for adoption of  the compliance Panel Report in this proceeding 
by adopting the draft decision set forth in documen t WT/DS27/88.  The draft decision would provide 
for DSB adoption by negative consensus by no la ter than 29 August 2008.  Such additional time 
would provide an opportunity for ongoing discussions  related to this dispute to continue.  The 
United States also recalled that the DSB, at its 2 June 2008 meeti ng, had adopted a similar decision 
proposed by Ecuador and the EC.  The United States  appreciated the DSB's support in this regard. WT/DSB/M/253 
Page 10  
 
  49. The representative of the European Communities
 said that the request by the EC and the 
United States was deemed to facilitate the cons tructive negotiations currently on-going between the 
EC and banana suppliers on a final settlement to  this long-standing dispute.  The new deadline 
proposed; i.e. 29 August 2008, aligned with the ne w deadline approved at the DSB meeting held on 
2 June in the case of Ecuador, and provided the parties with a large margin to conclude the 
negotiations.  The EC believed that the negotiation of an agreement, rather than further pursuing with 
litigation, was the only way towards a solution.  An agreement was also essential in the context of the 
on-going DDA negotiations. 
50. The DSB took note  of the statements.  
51. The Chairman  proposed that:  "The DSB agree that, upon a request by the United States or the 
European Communities, the DSB shall no later than 29 August 2008, adopt the Report of the Panel in 
the proceeding:  European Communities – Regime for the Importation, Sale and Distribution of 
Bananas:  Recourse to Article 21.5 of the DSU by the United States, contained in document 
WT/DS27/RW/USA, unless (i) the DSB decides by consen sus not to do so or (ii) the United States or 
the European Communities notifies the DSB of its d ecision to appeal pursuant to Article 16.4 of the 
DSU". 
52. The DSB so agreed.   
4. Proposed nomination for the indicative list of governmental and non-governmental 
panelists (WT/DSB/W/380) 
53. The Chairman  drew attention to document WT/DSB/W /380, which contained an additional 
name proposed for inclusion on the indicative list of  governmental and non-governmental panelists, in 
accordance with Article 8.4 of the DSU.  Unless there was any objection, he proposed that the DSB 
approve the name contained in document WT/DSB/W/380. 
54. The DSB so agreed . 
__________