WORLD TRADE  
ORGANIZATION  WT/DS27/83 
2 July 2007 
 (07-2829) 
 Original:   English 
  
 
EUROPEAN COMMUNITIES – REGIME FOR THE IMPORTATION, 
SALE AND DISTRIBUTION OF BANANAS 
 
Recourse to Article 21.5 of the DSU by the United States
 
 
Request for the Establishment of a Panel 
 
  The following communication, dated 29 June 2007, from the delegation of the United States to the Chairman of the Dispute Settlement Body, is  circulated pursuant to Article 21.5 of the DSU. 
 
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On 25 September 1997, the Dispute Settlement Body ("DSB") adopted its recommendations 
and rulings in the dispute European Communities – Regime for the Importation, Sale and Distribution 
of Bananas (WT/DS27) (" Bananas III ").
1  The DSB ruled that the import regime of the European 
Communities ("EC") for bananas was inconsis tent with the EC's obligations under the General 
Agreement on Tariffs and Trade 1994  ("GATT 1994") and General Agreement on Trade in Services  
("GATS").  Accordingly, the DSB recommended that the EC bring its measure into conformity with 
those agreements.2  An arbitrator appointed under Article 21.3(c) of the Understanding on Rules and 
Procedures Governing the Settlement of Disputes  ("DSU") awarded the EC a "reasonable period of 
time" until 1 January 1999, to do so.3 
 
The EC failed to bring its import regime for bananas into compliance with its WTO 
obligations by the end of the reasonable period of  time, and the United States considers that the 
regime remains inconsistent today, nearly a decade after the DSB made its original recommendations 
and rulings.  In particular, at the end of the reas onable period of time, the EC implemented a first set 
of changes to the banana import regime – through Regulation (EC) No. 1637/984 and Regulation (EC) 
No. 2362/985 – that were found to perpetuate a discr iminatory tariff-rate quota ("TRQ") system and 
license-based system in breach of the GATT 1994 and the GATS.6 
                                                      
1 Dispute Settlement Body, Minutes of 25 September 1997 Meeting, WT/DSB/M/37 (circulated 
4 November 1997). 
2 See Dispute Settlement Body, Minutes of 25 September 1997 Meeting, WT/DSB/M/37 (circulated 
4 November 1997); European Communities – Regime for the Importation, Sale and Distribution of Bananas , 
WT/DS27/R/USA, para. 9.2 (22 May 1997); European Communities – Regime for the Importation, Sale and 
Distribution of Bananas , WT/DS27/AB/R, para. 257 (9 September 1997). 
3 European Communities – Regime for the Importation, Sale and Distribution of Bananas , 
WT/DS27/15, para. 20 (7 January 1998). 
4 Published in the Official Journal of the European Communities (OJEC) L 120 of 28 July 1998. 
5 Published in the Official Journal of the European Communities (OJEC) L 293/32 of 31 October 1998. 
6 These findings were made by both a panel established under Article 21.5 of the DSU at the request of 
Ecuador as well as by an arbitrator appointed pursuant to Article 22.6 of the DSU to review a US request for authorization to suspend concessions.  See European Communities – Regime for the Importation, Sale and 
Distribution of Bananas , WT/DS27/RW/ECU, paras. 6.160-6.163 (12 April 1999) and European Communities – WT/DS27/83 
Page 2  
 
  In November 1999, the EC announced a second atte mpt to reform its banana regime, which 
was allegedly to comprise "a two-stage process, namely, after a transitional period during which a 
tariff quota system would be applied with preferential access for ACP [(African, Caribbean and Pacific)] countries, a flat tariff would be introduced."
7  The "transitional period" was to end no later 
than January 1, 2006.   
 
Although the United States reluctantly permitted this lengthy delay in compliance until the 
end of the "transitional period,"8 the EC never performed the second of the steps in the "two-stage 
process."  Instead of adopting a "flat tariff" fo r bananas, on 29 November 2005, the EC adopted 
Regulation (EC) No. 1964/2005, which establishes a preferential (zero-duty) TRQ available only to 
bananas originating in African, Caribbean and Pacific ("ACP") countries.9  Bananas of other origins 
have no access to this 775,000 ton TRQ.  Under Regulation (EC) No. 1964/2005 such other bananas 
are subject instead to a duty of 176 euros/ton.10  The regulation took effect as of 1 January 2006. 
 
The United States considers that the EC has failed to implement the DSB's recommendations 
and rulings, including through the changes made to its  banana regime on 1 January 2006.  Therefore, 
the regime remains inconsistent with the EC's  WTO obligations.  The United States considers, 
inter alia , that the EC's banana import regime: 
 
(1) is inconsistent with Article I of the GATT 1994 because it applies a zero tariff rate to 
imports of bananas originating in ACP count ries in a quantity up to 775,000 tons but 
does not accord the same duty-free treatment to  imports of bananas originating in all 
other WTO Members; and 
 
(2) is inconsistent with Article XIII of the GATT 1994 – including Articles XIII:1 and 
XIII:2 – because it reserves the 775,000 t on zero-duty TRQ for imports of bananas 
originating in ACP countries and provid es no access to this preferential TRQ to 
imports of bananas originating in non-ACP substantial or non-s ubstantial supplying 
countries. 
 
The United States understands the measures th rough which the EC maintains its current 
import regime for bananas to include: 
 
• Regulation (EEC) 404/93 of 13 February 1993, as amended by Regulation 
(EC) 216/2001 of 29 January 2001; 
 
• Regulation (EC) No. 1964/2005 of 29 November 2005; and 
                                                                                                                                                                     
Regime for the Importation, Sale and Distribution of Bananas , WT/DS27/ARB, paras. 5.96-5.98 (9 April 1999), 
respectively.  The DSB adopted the report of the Article 21.5 panel on 6 May 1999, including, again, a recommendation that the EC bring its banana import regime into conformity with its obligations under the 
GATT 1994 and the GATS.  See Dispute Settlement Body, Minutes of 6 May 1999 Meeting, WT/DSB/M/61 
(circulated 30 June 1999) and European Communities – Regime for the Importation, Sale and Distribution of 
Bananas , WT/DS27/RW/ECU, para. 7.2. 
7 Minutes of Meeting of the Dispute Settlement Body held on 19 November 1999, WT/DSB/M/71 
(11 January 2000). 
8 In April 2001, the EC memorialized its "two stage" compliance proposal in separate understandings 
with the United States and Ecuador. 
9 Regulation (EC) No. 1964/2005, para. 2, published in the Official Journal of the European 
Communities (OJEC) L 316/1 of 12 December 2005 ("[e]ach  year from 1 January, starting from 1 January 2006, 
an autonomous tariff quota of 775 000 tonnes net weight subject to a zero-duty rate shall be opened for imports 
of bananas (CN code 0803 00 19) originating in ACP countries.") 
10 Regulation (EC) No. 1964/2005, para. 1, published in the Official Journal of the European 
Communities (OJEC) L 316/1 of 12 December 2005.  WT/DS27/83 
 Page 3 
 
 
  • for each of the regulations listed above,  any amendments, implementing measures, 
and other related measures. 
 
As there is "disagreement as to the existence or consistency with a covered agreement of 
measures taken to comply with the recommendati ons and rulings" of the DSB between the United 
States and the EC, the United States respectfully seek s recourse to Article 21.5 of the DSU in this 
matter.  The United States requests that the DSB refe r the matter to the original panel, if possible, 
pursuant to Article 21.5 of the DSU.  
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