. /.   WORLD TRADE  
ORGANIZATION  WT/DS27/81 
15 March 2007 
 
 (07-1090) 
 Original:   French 
  
 
EUROPEAN COMMUNITIES – REGIME FOR THE IMPORTATION, 
SALE AND DISTRIBUTION OF BANANAS 
 
Recourse to Article 21.5 of the DSU by Ecuador
 
 
Communication from Cameroon 
 
  The following communication, dated 8 March 2007, from the delegation of Cameroon to the 
Chairman of the Dispute Settlement Body, is circulated at the request of that delegation. 
 
_______________ 
 
  By letter dated 23 February 2007, the Perman ent Mission of Ecuador to the WTO requested, 
on the basis of Article 21.5 of the DSU, that the consistency with GATT Artic les I, II and XIII:1 and 2 
of the European Communities' regime for the importa tion of bananas be referred for review to the 
original Panel, if possible.   On behalf of my Government, I shoul d like to make the following comments: 
 1. The agreement reached in April 2001 between the United States and Ecuador, on the 
one hand, and the European Communities, on the other, as reflected in the Doha Ministerial 
Decision of 14 November 2001, defined a new specif ic procedure in the search for a solution to 
any dispute concerning bananas.   It was pursuant to this new pro cedure that negotiations were held 
early in 2005 with Members exporting to the Eur opean Union on an MFN basis.  These negotiations 
were carried forward by arbitration in the course of the summer of the same year, and the arbitrators 
were required to consider whether "the [...] rebinding of the EC tariff on bananas would result in at 
least maintaining total market access for MFN b anana suppliers, taking into account the [...] 
EC commitments".  
 This is therefore a very different procedure from the one hitherto followed by panels, and the 
request submitted by Ecuador on the basis of Article  21.5 of the DSU is therefore legally groundless. 
 
 Moreover, the steps taken by Ecuador since the end of arbitration in the autumn of 2005 consisted in requesting consultati ons under the normal Article 4 procedure, possibly leading to the 
Article 6 procedure (reference was also made to th ese provisions in the letter of 23 February 2007), 
whereas Article 21.5 does not provide for consultations. 
 
2. We emphasize that recourse to Article 21.5 is justified only "where there is disagreement 
as to the existence or consistency with a covered  agreement of measures taken to comply with the 
recommendations and rulings".  
 
 The agreement in which Ecuador played a decisive part, as reproduced in the Doha 
"Ministerial Decision" , particularly the annex thereto, stipulates that:  "If the arbitrator determines WT/DS27/81 
Page 2  
 
  that the rebinding would not result in at least main taining total market access for MFN suppliers, the 
EC shall rectify the matter".  
 
 The arbitrators decided initially that the level of the tariff which the European Union intended 
to adopt would be too high to achieve that objec tive.  The Communities modified that level.  The 
same verdict was rendered on the new proposed tariff.   The Communities decided for the third time to 
adopt a new tariff, at 176 €/t, which was introduced  on 1 January 2006.  The European Communities 
did, therefore, comply with the recommendations and rulings of the arbitrator.   A monitoring system was established for the joint review of trends in imports throughout 
2006.  It confirmed that the new customs tariff in troduced by the European Communities did not have 
the effect of impeding total MFN access to the Co mmunity market;  on the contrary, the overall 
volumes increased substantially.  In fact, one agai n, recourse to Article 21.5 is not justified. 
 
3. Finding no way to attack the duty level of  €176 per tonne, Ecuador seeks to shift the 
discussion by challenging the preferenti al regime granted to the ACP countries on the ground 
that "the modified regime violated GATT Articles I and XIII".   However, Ecuador negotiated and approved the Doha Decision which, in the Annex relating 
specifically to bananas, contains the following sentence:  " In the case of bananas, the waiver  [of 
Article I, paragraph 1] will also apply until 31 December 2007, subject to the following [that is, the 
commitment to enter into consultations and to submit to arbitration and follow the arbitrator's 
recommendations]".   This is therefore unacceptable.  Indeed, I do not see how the DSB can accept a Member's request to modify a ministerial decision.  Clearly , by means of Article 21.5, Ecuador is seeking to 
circumvent that ministerial decision. 
  If, by some unlikely chance, the decision were taken to establish a panel, and since it 
would be the task  of that panel to discuss only the ACP preferential regime, then, Mr Chairman, my 
Government would never agree to being granted third party status in the panel's proceedings, as 
in the past, and would demand officially to be made a full party.  
 
__________