WORLD TRADE  
ORGANIZATION  WT/DS269/AB/R 
WT/DS286/AB/R 12 September 2005 
 
 
(05-3938 ) 
 Original:   English 
 
 
 
     
 
    
 
 
EUROPEAN COMMUNITIES – CUSTOMS CLASSIFICATION 
OF FROZEN BONELESS CHICKEN CUTS 
 
 
 
AB-2005-5 
 
     
 
    
 
Report of the Appellate Body 
 
  WT/DS269/AB/R 
 WT/DS286/AB/R 
 Page i 
 
 I.
 Introduction................................................................................................................... ..............1  
II. Appeal by the European Communities .......................................................................................6  
A. Claims of Error by the European Communities – Appellant ......................................... 6 
1. Interpretation of the EC Schedule in the Light of Article 31 of the 
Vienna Convention ............................................................................................6  
(a) Ordinary Meaning................................................................................7  
(b) Context.................................................................................................8  
(c) Subsequent Practice ...........................................................................11  
(d) Object and Purpose ............................................................................15  
2. Interpretation of the EC Schedule in the Light of Article 32 of the 
Vienna Convention ..........................................................................................16  
(a) Circumstances of Conclusion ............................................................16  
(b) Characterization of Relevant Law of the European 
Communities......................................................................................18  
B. Arguments of Brazil – Appellee ................................................................................... 20 
1. Interpretation of the EC Schedule in the Light of Article 31 of the 
Vienna Convention ..........................................................................................20  
(a) Ordinary Meaning..............................................................................20  
(b) Context...............................................................................................21  
(c) Subsequent Practice ...........................................................................22  
(d) Object and Purpose ............................................................................26  
2. Interpretation of the EC Schedule in the Light of Article 32 of the 
Vienna Convention ..........................................................................................27  
(a) Circumstances of Conclusion ............................................................27  
(b) Characterization of Relevant Law of the European 
Communities......................................................................................28  
C. Arguments of Thailand – Appellee............................................................................... 29 
1. Interpretation of the EC Schedule in the Light of Article 31 of the 
Vienna Convention ..........................................................................................29  
(a) Ordinary Meaning..............................................................................29  
(b) Context...............................................................................................31  
(c) Subsequent Practice ...........................................................................32  
(d) Object and Purpose ............................................................................35  
2. Interpretation of the EC Schedule in the Light of Article 32 of the 
Vienna Convention ..........................................................................................36  
(a) Circumstances of Conclusion ............................................................36  
(b) Characterization of Relevant Law of the European 
Communities......................................................................................37  
III. Other Appeals by Brazil and Thailand......................................................................................38  WT/DS269/AB/R 
WT/DS286/AB/R Page ii 
 
 
A.
 Claims of Error by Brazil – Other Appellant............................................................... 38 
1. Terms of Reference.........................................................................................38  
(a) Measures within the Terms of Reference ..........................................38  
(b) Products within the Te rms of Reference............................................39  
2. Interpretation of the EC Schedule in the Light of Article 31 of the 
Vienna Convention ..........................................................................................40  
B. Claims of Error by Thailand – Other Appellant.......................................................... 42 
1. Terms of Reference.........................................................................................42  
(a) Measures within the Terms of Reference ..........................................42  
(b) Products within the Te rms of Reference............................................43  
2. Interpretation of the EC Schedule in the Light of Article 31 of the 
Vienna Convention ..........................................................................................44  
C. Arguments of the European Communities – Appellee ................................................. 45 
1. Terms of Reference.........................................................................................45  
(a) Measures within the Terms of Reference ..........................................45  
(b) Products within the Te rms of Reference............................................46  
2. Interpretation of the EC Schedule in the Light of Articles 31 and 32 of 
the Vienna Convention ....................................................................................47  
IV. Arguments of the Third Participants.........................................................................................49  
A. China.......................................................................................................................... ..49 
B. United States................................................................................................................ 51 
V. Issues Raised in this Appeal ................................................................................................... ..53 
VI. Introduction................................................................................................................... ............56  
VII. Terms of Reference............................................................................................................. ......59  
A. Measures Within the Terms of Reference .................................................................... 59 
B. Products Within the Terms of Reference ..................................................................... 65 
VIII. Interpretation of the EC Schedule in the Light of Article 31 of the Vienna Convention ..........67  
A. The Ordinary Meaning of the Term "Salted" in Heading 02.10 of the 
EC Schedule................................................................................................................. 67 
1. Analysis of the Ordinary Meaning and "Factual Context" of the Term 
"Salted" ...........................................................................................................68  
2. The European Communiti es' Claim under Article 11 of the DSU..................69  
3. Conclusion Concerning the Ordinary Meaning ..............................................73  
B. "Context"...................................................................................................................... 74 
1. What Constitutes Context for Interpreting the Term "Salted" in 
Heading 02.10 of the EC Schedule? ...............................................................75  
2. The Meaning of the Term "Salted" in Heading 02.10 of the EC Schedule, Considered in its Context.........................................................79
 
(a) The Terms of Heading 02.10 Other than "Salted".............................82  
(b) The Structure of Chapter 2 of the EC Schedule and the Harmonized System and the Relevant Notes Thereto .......................84
  WT/DS269/AB/R 
 WT/DS286/AB/R 
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3. Rule 3 of the General Rules for th e Interpretation of the Harmonized 
System.............................................................................................................90  
4. Conclusion Concerning "Context"..................................................................92  
IX. Object and Purpose ............................................................................................................. ......92  
A. Object and Purpose of the Treaty or of a Particular Treaty Provision....................... 93 
B. Did the Panel Rely on "Expansion of Tr ade" as an Interpretative Principle? ............ 94 
C. Does a Criterion of "Preservation" Underm ine the Security and Predictability 
of Tariff Concessions? ................................................................................................. 96 
D. Was Heading 02.10 Intended to Cover Fr ozen (Salted) Poultry Meat?...................... 98 
X. Subsequent Practice ............................................................................................................ ......98  
A. What May Qualify as Practice?................................................................................. 100 
B. How Does One Establish Agreement of Parties that Have Not Engaged in a 
Practice?.................................................................................................................... 105 
C. Was there "Consistency" of Customs Cl assification Practice in this Case? ............. 107 
D. Conclusion ................................................................................................................. 108 
XI. Interpretation of the EC Schedule in the Light of Article 32 of the Vienna Convention ........108  
A. Introduction ............................................................................................................... 108 
B. The Concept of "Circumstances of the Conclusion of a Treaty" ............................... 110 
1. The Concept of "Circumstances"..................................................................112  
2. Relevance of Circumstances for Interpretation.............................................113  
3. "Circumstances " at What Time?..................................................................114  
4. What Kind of Knowledge is Required?........................................................115  
5. Whose Acts or Instruments May Qualify as "Circumstances"?....................117  
6. What Types of Events, Acts, and Instruments? ............................................119  
C. Characterization of Relevant La w of the European Communities............................. 121 
1. EC Regulation 535/94...................................................................................123  
2. The  Dinter  and Gausepohl  Judgments of the European Court of 
Justice ...........................................................................................................126  
D. Conclusion ................................................................................................................. 134 
XII. Findings and Conclusions....................................................................................................... 134 
 
ANNEX I Notification of an Appeal by the Euro pean Communities under paragraph 4 of Article 
16 of the DSU 
ANNEX II Notification of an Other Appeal by Brazil under Article 16.4 and Article 17 of the 
DSU, and under Rule 23(1) of the Working Procedures for Appellate Review 
ANNEX III Notification of an Other Appeal by Thailand under Article 16.4 and Article 17 of the 
DSU, and under Rule 23(1) of the Working Procedures for Appellate Review 
ANNEX IV Chapter 2 of the Harmonized Commodity Description and Coding System WT/DS269/AB/R 
WT/DS286/AB/R Page iv 
 
 
TABLE OF CASES CITED IN THIS REPORT 
 
Short Title Full Case Title and Citation 
Argentina – Footwear (EC)  Appellate Body Report, Argentina – Safeguard Measures on Imports of 
Footwear , WT/DS121/AB/R, adopted 12 January 2000, DSR 2000:I, 515 
Argentina – Footwear (EC)  Panel Report, Argentina – Safeguard Measur es on Imports of Footwear , 
WT/DS121/R, adopted 12 January 2000, as modified by the Appellate Body Report, WT/DS121/AB/R, DSR 2000:II, 575 
Argentina – Textiles and 
Apparel  Appellate Body Report, Argentina – Measures Affecting Imports of Footwear, 
Textiles, Apparel and Other Items , WT/DS56/AB/R and Corr.1, adopted 
22 April 1998, DSR 1998:III, 1003 
Brazil – Aircraft  Appellate Body Report, Brazil – Export Financing Programme for Aircraft , 
WT/DS46/AB/R, adopted 20 August 1999, DSR 1999:III, 1161 
Brazil – Desiccated Coconut  Appellate Body Report, Brazil – Measures Affe cting Desiccated Coconut , 
WT/DS22/AB/R, adopted 20 March 1997, DSR 1997:I, 167 
Canada – Dairy  Appellate Body Report, Canada – Measures Affecting the Importation of Milk 
and the Exportation of Dairy Products , WT/DS103/AB/R, WT/DS113/AB/R, 
and Corr.1, adopted 27 October 1999, DSR 1999:V, 2057 
Canada – Patent Term  Panel Report, Canada – Term of Patent Protection , WT/DS170/R, adopted 
12 October 2000, as upheld by Appellate Body Report, WT/DS170/AB/R, DSR 2000:XI, 5121 
Chile – Price Band System  Appellate Body Report, Chile – Price Band System and Safeguard Measures 
Relating to Certain Agricultural Products , WT/DS207/AB/R, adopted 
23 October 2002, DSR 2002:VIII, 3045 
Dominican Republic – Import and Sale of Cigarettes Appellate Body Report, Dominican Republic – Measures Affecting the 
Importation and Internal Sale of Cigarettes , WT/DS302/AB/R, adopted 
19 May 2005 
Dominican Republic – Import 
and Sale of Cigarettes Panel Report, Dominican Republic – Measures Affecting the Importation and 
Internal Sale of Cigarettes , WT/DS302/R, adopted 19 May 2005, as modified 
by Appellate Body Report, WT/DS302/AB/R 
EC – Bananas III  Appellate Body Report, European Communities – Regime for the Importation, 
Sale and Distribution of Bananas , WT/DS27/AB/R, adopted 
25 September 1997, DSR 1997:II, 591 
EC – Chicken Cuts (Brazil) Panel Report, European Communities – Customs Classification of Frozen 
Boneless Chicken Cuts, Complaint by Brazil , WT/DS269/R, 30 May 2005  
EC – Chicken Cuts (Thailand) Panel Report, European Communities – Customs Classification of Frozen 
Boneless Chicken Cuts, Complaint by Thailand , WT/DS286/R, 30 May 2005  
EC – Computer Equipment  Appellate Body Report, European Communities – Customs Classification of 
Certain Computer Equipment , WT/DS62/AB/R, WT/DS67/AB/R, 
WT/DS68/AB/R, adopted 22 June 1998, DSR 1998:V, 1851 
EC – Export Subsidies on 
Sugar Appellate Body Report, European Communities – Export Subsidies on Sugar , 
WT/DS265/AB/R, WT/DS266/AB/R, WT/DS283/AB/R, adopted 19 May 2005 
EC – Hormones  Appellate Body Report, EC Measures Concerning Meat and Meat Products 
(Hormones) , WT/DS26/AB/R, WT/DS48/AB/R, adopted 13 February 1998, 
DSR 1998:I, 135  WT/DS269/AB/R 
 WT/DS286/AB/R 
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Short Title Full Case Title and Citation 
EC – Tube or Pipe Fittings Appellate Body Report, European Communities – Anti-Dumping Duties on 
Malleable Cast Iron Tube or Pipe Fittings from Brazil , WT/DS219/AB/R, 
adopted 18 August 2003 
Guatemala – Cement I  Appellate Body Report, Guatemala – Anti-Dumping Investigation Regarding 
Portland Cement from Mexico , WT/DS60/AB/R, adopted 25 November 1998, 
DSR 1998:IX, 3767 
Japan – Alcoholic 
Beverages II  Appellate Body Report, Japan – Taxes on Alcoholic Beverages , 
WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R, adopted 1 November 1996, 
DSR 1996:I, 97  
Korea – Dairy  Appellate Body Report, Korea – Definitive Safeguard Measure on Imports of 
Certain Dairy Products , WT/DS98/AB/R, adopted 12 January 2000, 
DSR 2000:I, 3 
Mexico – Telecoms Panel Report, Mexico – Measures Affecting Telecommunications Services , 
WT/DS204/R, adopted 1 June 2004 
US – Carbon Steel  Appellate Body Report, United States – Countervailing Duties on Certain 
Corrosion-Resistant Carbon Steel Flat Products from Germany , 
WT/DS213/AB/R and Corr.1, adopted 19 December 2002, DSR 2002:IX, 3779 
US – FSC Panel Report, United States – Tax Treatment for "Foreign Sales Corporations" , 
WT/DS108/R, adopted 20 March 2000, as modified by Appellate Body Report, 
WT/DS108/AB/R, DSR 2000:IV, 1675 
US – Gambling Appellate Body Report, United States – Measures Affecting the Cross-Border 
Supply of Gambling and Betting Services , WT/DS285/AB/R, adopted 20 April 
2005 
US – Gasoline  Appellate Body Report, United States – Standards for Reformulated and 
Conventional Gasoline , WT/DS2/AB/R, adopted 20 May 1996, DSR 1996:I, 3 
US – Line Pipe  Appellate Body Report, United States – Definitive Safeguard Measures on 
Imports of Circular Welded Car bon Quality Line Pipe from Korea , 
WT/DS202/AB/R, adopted 8 March 2002, DSR 2002:IV, 1403 
US – Offset Act  
(Byrd Amendment ) Appellate Body Report, United States – Continued Dumping and Subsidy Offset 
Act of 2000 , WT/DS217/AB/R, WT/DS234/AB/R, adopted 27 January 2003 
US – Offset Act  
(Byrd Amendment) (EC) (Article 22.6 – US)  Decision by the Arbitrator, United States – Continued Dumping and Subsidy 
Offset Act of 2000, Original Complaint by the European Communities – Recourse to Arbitration by the United States under Article 22.6 of the DSU , 
WT/DS217/ARB/EEC, 31 August 2004 
US – Softwood Lumber IV  Appellate Body Report, United States – Final Countervailing Duty 
Determination with Respect to Certain Softwood Lumber from Canada , 
WT/DS257/AB/R, adopted 17 February 2004 
US – Steel Safeguards Appellate Body Report, United States – Definitive Safeguard Measures on 
Imports of Certain Steel Products , WT/DS248AB/R, WT/DS249AB/R, 
WT/DS251AB/R, WT/DS252AB/R, WT/DS253AB/R, WT/DS254AB/R, 
WT/DS258AB/R, WT/DS259AB/R, adopted 10 December 2003 
 WT/DS269/AB/R 
WT/DS286/AB/R Page vi 
 
 
TABLE OF ABBREVIATIONS USED IN THIS REPORT 
 
Abbreviation Definition 
BTIs  Binding Tariff Information  
DSB  Dispute Settlement Body  
Dinter   judgment European Court of Justice, Judgment, Dinter v Hauptzollamt Köln-
Deutz , Case C-175/82, ECR [1983] 969  
DSU Understanding on Rules and Procedures Governing the Settlement of 
Disputes   
ECJ European Court of Justice 
EC Decision 2003/97/EC Commission Decision of 31 January 2003 concerning the validity of 
certain binding tariff information (BTI) issued by the Federal Republic of Germany ( notified under document number C(2003) 77 ) 
(2003/97/EC) 
EEC Regulation 2658/87 Council Regulation (EEC) No. 2658/87 of 23 July 1987 on the tariff and 
statistical nomenclature and on the Common Customs Tariff 
EC Regulation 535/94 Commission Regulation (EC) No. 535/94 of 9 March 1994 amending 
Annex I to Council Regulation (EEC) No 2658/87 on the tariff and 
statistical nomenclature and on the Common Customs Tariff 
EC Regulation 1223/2002 Commission Regulation (EC) No. 1223/2002 of 8 July 2002 
concerning the classification of certain goods in the Combined 
Nomenclature, and corrigenda  
EC Regulation 1789/2003 Commission Regulation (EC) No. 1789/2003 of 11 September 2003 
amending Annex I to Council Regul ation (EEC) No 2658/87 on the 
tariff and statistical nomenclature and on the Common Customs Tariff 
EC Regulation 1871/2003 Commission Regulation (EC) No. 1871/2003 of 23 October 2003 
amending Annex I to Council Regul ation (EEC) No 2658/87 on the 
tariff and statistical nomenclature and on the Common Customs Tariff 
EC Regulation 2344/2003 Commission Regulation (EC) No. 2344/2003 of 30 December 2003 
amending Annex I to Council Regul ation (EEC) No 2658/87 on the 
tariff and statistical nomenclature and on the Common Customs Tariff 
EC Schedule European Communities' Schedule LXXX  
GATT 1994 General Agreement on Tariffs and Trade 1994   
Gausepohl  judgment European Court of Justice, Judgment, Gausepohl-Fleisch GmbH v. 
Oberfinanzdirektion Hamburg , Case C-33/92, ECR [1993] I-3047  
General Rules  World Customs Organization, General Rules for the Interpretation of 
the Harmonized System  
Harmonized System  World Customs Organization, Harmonized Commodity Description 
and Coding System 
ILC International Law Commission  
Panel Reports Panel Report, EC – Chicken Cuts (Brazil)   
Panel Report, EC – Chicken Cuts (Thailand)   WT/DS269/AB/R 
 WT/DS286/AB/R 
 Page vii 
 
 
Abbreviation Definition 
Vienna Convention  Vienna Convention on the Law of Treaties , done in Vienna, 23 May 
1969, 1155 UNTS 331;  8 International Legal Materials 679 
WCO  World Customs Organization 
Working Procedures  Working Procedures for Appellate Review , WT/AB/WP/5, 4 January 
2005  
WTO World Trade Organization 
WTO Agreement Marra kesh Agreement Establishing the World Trade Organization   
  WT/DS269/AB/R 
 WT/DS286/AB/R 
 Page 1 
 
 
WORLD TRADE ORGANIZATION  
APPELLATE BODY 
 
 
European Communities – Customs 
Classification of Frozen Boneless  Chicken Cuts 
 
European Communities, Appellant/Appellee  
Brazil, Appellant/Appellee  
Thailand, Appellant/Appellee  
 China, Third Participant  
United States, Third Participant   AB-2005-5 
  Present: 
 
 Sacerdoti, Presiding Member  Baptista, Member  Ganesan, Member  
 
 
I. Introduction 
1. The European Communities, as appellant, and Br azil and Thailand, as other appellants, each 
appeal certain issues of law and legal inte rpretations developed in the Panel Reports, European 
Communities – Customs Classification of Frozen Boneless Chicken Cuts  (the "Panel Reports").1  The 
Panel was established to consider complaints by  Brazil and Thailand concerning certain measures of 
the European Communities, pertaining to the classi fication of frozen boneless salted chicken cuts for 
tariff treatment.2  
2. Brazil and Thailand claimed before the Panel that Commission Regulation (EC) 
No.  1223/2002 ("EC  Regulation 1223/2002") and Commission Decision No.  2003/97/EC 
("EC Decision 2003/97/EC") resulted in tariff treatme nt for frozen boneless salted chicken cuts that is 
less favourable than that provided for in the European Communities' Schedule LXXX 
(the "EC Schedule"), in violation of Article  II:1(a) and/or Article II:1(b) of the  General Agreement on 
Tariffs and Trade 1994  (the "GATT 1994").3  More particularly, Brazil and Thailand alleged that, 
through the challenged measures, "the European Communities changed its customs classification so 
that those products, which had previously been  classified under subheading 0210.90.20 and were 
subject to an  ad valorem  tariff of 15.4%, are now classified under subheading 0 207.41.10 and are 
                                                      
1Complaint by Brazil , WT/DS269/R, 30 May 2005;  Complaint by Thailand , WT/DS286/R, 30 May 
2005.  At the request of the European Communities, purs uant to Article 9.2 of the DSU, the Panel issued two 
separate reports.  These two reports have the same descri ptive part and findings;  the only "material difference" 
between these separate reports is the cover page and the conclusions. (Panel Reports, para. 6.21) 
2Panel Reports, para. 2.1. 
3Ibid., paras. 2.1 and 7.60. WT/DS269/AB/R 
WT/DS286/AB/R Page 2 
 
 
subject to a tariff of 102.4€/100kg/net as well as be ing potentially subject to special safeguard 
measures pursuant to Article 5 of the Agreement on Agriculture."
4  
3. Brazil and Thailand also claimed before the Panel that, although Commission Regulation 
(EC) No. 1871/2003 ("EC Regulation 1871/2003")  and Commission Regulation (EC) No. 2344/2003 
("EC Regulation 2344/2003") were not mentioned sp ecifically in their requests for the establishment 
of a panel 5, these Regulations must be considered as part of the challenged measures because they are 
"closely related" to and based on the same princi ple of long-term preservation, as set out in the 
challenged measures.6  Brazil and Thailand also alleged that  the specific products at issue were 
"frozen boneless salted chicken cuts that have been  deeply and homogeneously  impregnated with salt 
in all parts with a total salt content of not less than  1.2% by weight", and that the terms of reference 
are not limited to products with a salt content between 1.2 and 3 per cent.7  
4. In the Panel Reports, circulated to Members of the World Trade Organization (the "WTO") 
on 30 May 2005, the Panel determined that EC Re gulations 1871/2003 and 2344/2003 were outside 
the Panel's terms of reference.8  The Panel further concluded that th e specific products at issue in this 
dispute were "frozen boneless chicken cuts impregnate d with salt, with a salt content of 1.2% – 3%" 
as provided for in the measures under the terms of reference.9  
5. The Panel then proceeded to examine whet her the measures at issue—EC Regulation 
1223/2002 and EC Decision 2003/97/EC—resulted in th e imposition of duties and conditions on the 
products at issue in excess of those provided for in  the EC Schedule.  The Parties agreed that the 
import duties levied on the products at issue,  when classified under heading 02.07, exceeded 
15.4 per cent  ad valorem , which is the bound duty rate for produc ts covered by heading 02.10.  In 
view of this agreement, the Panel c oncluded that, if it were to determ ine that "the products at issue are 
covered by the concession contained in heading 02.1 0 of the EC Schedule rather than the concession 
contained in heading 02.07, there is no question that the treatment accorded to those products under 
the measures at issue is less favourable than  that provided for in the EC Schedule."10  
                                                      
4Panel Reports, para. 7.3. 
5WT/DS269/3 (Brazil), 22 September 2003;  WT/DS286/5 (Thailand), 28 October 2003. 
6Panel Reports, paras. 7.21-7.22. 
7EC Regulation 1223/2002 and EC Decision 2003/97/EC refer to frozen boneless salted chicken cuts 
impregnated with salt, with a salt content of 1.2 to 3 pr cent. 
8Panel Reports, para. 7.32. 
9Ibid., para. 7.36. 
10Ibid., para. 7.75.  WT/DS269/AB/R 
 WT/DS286/AB/R 
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6. Before the Panel, Brazil and Thailand claimed th at the products at issue were not covered by 
heading 02.07, but rather by heading 02.10, while  the European Communities alleged the reverse.  
Both Brazil and Thailand based their positions on the meaning of the term "salted" in heading 02.10 
and submitted that the notion of "long-term preserva tion" is not included in the meaning of "salted" 
under that heading.  On the contrary, the Europ ean Communities claimed that the products at issue 
were not "salted" because, in order to qualify u nder heading 02.10 (through sa lting), the product must 
have been "deeply and homogenously  impregnated with a level of sa lt sufficient to ensure long-term 
preservation".11  The Panel found that the critical question in interpreting the EC Schedule is "whether 
the term 'salted' in the concession contained in head ing 02.10 covers the products at issue which, in 
turn, will entail a determination of whether that c oncession includes the requirement that salting is for 
preservation and, more particularly , is for long-term preservation."12  
7. Following an analysis under Articles 31 and 32 of the Vienna Convention on the Law  
of Treaties  (the " Vienna Convention ")13 of the term "salted" in the concession contained in 
heading 02.10 of the EC Schedule, the Panel concluded that: 
(a) the "ordinary meaning" of the term "salted" is :  to season, to add salt, to flavour with 
salt, to treat, to cure or to preserve.14  Therefore, there is nothing in the range of 
meanings comprising the ordinary meaning of  the term "salted" that indicates that 
chicken to which salt has been added is not covered by the concession contained in 
heading 02.10 of the EC Schedule15; 
(b) the factual context indicates that the ordinary meaning of the term "salted" is that the 
character of a product has been altered through the addition of salt.16  Therefore, the 
ordinary meaning of the term "salted" in  heading 02.10 is not dispositive regarding 
the question whether the products at issue are covered by this concession17;  
(c) the "context" of the term "salted"—namely, the terms of heading 02.10, the structure 
and the other parts of the EC Schedule, as well as the terms, structure, the 
Explanatory Notes and the General Rules fo r the Interpretation of the Harmonized 
                                                      
11Panel Reports, para. 7.81. 
12Ibid., para. 7.86. (footnote omitted) 
13Done at Vienna, 23 May 1969, 1155 UNTS 331;  8 International Legal Materials 679. 
14Panel Reports, para. 7.331. 
15Ibid., para. 7.151. 
16Ibid., para. 7.331. 
17Ibid., para. 7.151. WT/DS269/AB/R 
WT/DS286/AB/R Page 4 
 
 
System (the "General Rules")—do not clarify the "ordinary meaning" of the term 
"salted" in the concession contained in h eading 02.10 of the EC Schedule, although 
the context does tend to indicate that the h eading is not characterized necessarily by 
the notion of long-term preservation
18; 
(d) the European Communities' consistent practice of classifying the products at issue 
under heading 02.10 during the period between 1996 and 2000 amounts to "subsequent practice"
19, and it indicates that "the products at issue are covered by the 
concession contained in heading 02.10 of the EC Schedule"20; 
(e) given the lack of certainty associated with the application of the criterion of long-term 
preservation, an interpretation of the term  "salted" in the concession contained in 
heading 02.10 that includes this criterion could undermine the "object and purpose" 
of security and predictability in trade re lations, which lie at the heart of the 
Marrakesh Agreement Establishing  the World Trade Organization  (the 
"WTO Agreement ") and the GATT 1994 21;  and 
(f) the relevant aspects of "supplementary means of interpretation", most particularly 
Commission Regulation (EC) No. 535/94 ("EC Regulation 535/94"), indicate that 
meat that has been deeply and homogene ously impregnated with salt and has a 
minimum salt content of 1.2 per cent by weight would qualify as "salted" meat under 
the concession contained in heading 02.10 of the EC Schedule.22  The supplementary 
means of interpretation under Article 32 of the Vienna Convention  confirm the 
preliminary conclusions reached by the Panel under Article 31 of the Vienna 
Convention .23 
8. After evaluating the claims of the Parties and interpreting the term "s alted" according to the 
interpretation rules codified in the Vienna Convention , the Panel found, in the light of its above-
referenced conclusions, that: 
                                                      
18Panel Reports, para. 7.331. 
19Ibid., para. 7.303. 
20Ibid., para. 7.331. 
21Ibid. 
22Ibid., para. 7.423. 
23Ibid.  WT/DS269/AB/R 
 WT/DS286/AB/R 
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(a) frozen boneless chicken cuts that have been impregnated with salt, with a salt content 
of 1.2 to 3 per cent (the products at issue), are covered by the concession contained in 
heading 02.10 of the EC Schedule; 
(b) EC Regulation 1223/2002 and EC Decision 2003/97/EC result in the imposition of 
customs duties on the products at issue that are in excess of the duties provided for in 
respect of the concession contained in h eading 02.10 of the EC Schedule;  and 
(c) accordingly, the European Communities has acted inconsistently with the 
requirements of Articles II:1(a) and II:1(b)  of the GATT 1994 and, thus, nullified or 
impaired benefits accrui ng to Brazil and Thailand.24 
9. The Panel therefore recommended that the Disput e Settlement Body (the "DSB") request the 
European Communities to bring EC Regulati on 1223/2002 and EC Decision 2003/97/EC into 
conformity with its obligations under the GATT 1994.25 
10. On 13 June 2005, the European Communities notif ied the DSB of its intention to appeal 
certain issues of law covered in the Panel Reports and certain legal interpre tations developed by the 
Panel, pursuant to paragraph 4 of Article 16 of the Understanding on Rules and Procedures 
Governing the Settlement of Disputes   (the "DSU") and filed a Notice of Appeal 26 pursuant to Rule 20 
of the  Working Procedures for Appellate Review   (the " Working Procedures ").27  On 20 June 2005, 
the European Communities filed an appellant's submission.28  On 27 June 2005, both Brazil and 
Thailand notified the DSB of their intention to ap peal certain issues of law covered in the Panel 
Reports and certain legal interpreta tions developed by the Panel, pursuan t to paragraph 4 of Article 16 
of the DSU, and each filed a Notice of Other Appeal29 pursuant to Rule 23(1) of the Working 
Procedures .  On 28 June 2005, Brazil and Thailand each  filed an other appellant's submission.30  On 
                                                      
24Panel Reports, para. 8.1. 
25Ibid., para. 8.2. 
26WT/DS269/6, WT/DS286/8 (attached as Annex I to this Report). 
27WT/AB/WP/5, 4 January 2005. 
28Pursuant to Rule 21(1) of the Working Procedures . 
29WT/DS269/7 (Brazil) (attached as Annex II to th is Report);  WT/DS286/9 (Thailand) (attached as 
Annex III to this Report). 
30Pursuant to Rule 23(3) of the Working Procedures.  WT/DS269/AB/R 
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8 July 2005, the European Communities, Brazil, and Thailand each filed an appellee's submission.
31  
On the same day, China and the United States each filed a third participant's submission.32 
11. By letter dated 30 June 2005, Thailand request ed authorization from the Appellate Body 
Division hearing the appeal (the "Division"), pursuant to Rule 18(5) of the Working Procedures , to 
correct three "clerical errors" in its other appella nt's submission.  On 4 July 2005, the Division, 
pursuant to Rule 18(5) of the Working Procedures , invited all participants and third participants to 
comment on Thailand's request.  None of the par ticipants or third participants commented on 
Thailand's request.  On 6 July 2005, the Division au thorized Thailand to correct the three clerical 
errors in its other appellant's submission. 
12. On 13 July 2005, the Division hearing the appeal received an  amicus curiae   brief from the 
Association of Poultry Processors and Poultr y Trade in the European Union Countries ( avec).33  The 
Division does not find it necessary to take the brief in to account in resolving the issues raised in this 
appeal. 
13. The oral hearing in this appeal was held on 25 and 26 July 2005.  The participants and third 
participants presented oral arguments and respond ed to questions posed by the Members of the 
Division hearing the appeal. 
II. Appeal by the European Communities 
A. Claims of Error by the European Communities – Appellant 
1. Interpretation of the EC Schedule in the Light of Article 31 of the Vienna 
Convention  
14. The European Communities submits that the Panel erred in its interpretation of heading 02.10 
of the EC Schedule in respect of various elements of Article 31 of the Vienna Convention .  
Specifically, the European Commun ities alleges that the Panel erre d in its consideration of the 
following:  the "ordinary meaning" of the term "sal ted" found in heading 02.10;  the "context" of that 
term;  the "object and purpose" of the  WTO Agreement   and the GATT 1994;  and the alleged 
"subsequent practice" of the parties c oncerning classification under heading 02.10. 
                                                      
31Pursuant to Rules 22 and 23(4) of the Working Procedures.  
32Pursuant to Rule 24(1) of the Working Procedures . 
33In a letter dated 18 July 2005, Brazil requested the Appellate Body to "disregard" avec's amicus 
curiae brief.  In a letter dated 21 July 2005, and at the oral hearing, Thailand requested that the Appellate Body 
"not take [this brief] into account".  In its closing statement at the oral hearing, Brazil contested the arguments 
made by avec.  WT/DS269/AB/R 
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(a) Ordinary Meaning 
15. The European Communities agrees w ith the Panel that the dictiona ry definitions of the term 
"salted" include, but are not confined to, the noti on of preservation.  The European Communities also 
contends that it is from "the rest of heading 02.10, and the structure of chapter 2"34 of the Harmonized 
Commodity Description and Coding System of the World Customs Organization ("WCO") (the 
"Harmonized System") that the term "salted" in that heading derives its meaning as referring to a 
process of preservation.   
16. The European Communities takes issue with th e Panel's examination of what the Panel 
referred to as the "[f]actual context for th e consideration of the ordinary meaning".35  The European 
Communities submits that the analysis of such "factual context" is not relevant to the legal question of 
the meaning of the term "salted", and that such  an analysis is neither supported by the  Vienna 
Convention  nor by the academic sources to which the Panel referred.36   Furthermore, several of the 
Panel's conclusions as to the "factual context" are re ndered erroneous as a matter of law in the light of 
an analysis of the context of the term "salted". 
17. The European Communities further claims that certain of the Panel's conclusions in its 
analysis of the "ordinary meaning" of the term "salted" amount to "an egregious distortion of the 
facts" and are therefore inconsistent with the Panel's obligations under Article 11 of the DSU.37  First, 
the European Communities refers to the Panel's find ing that "it appears that even small quantities of 
salt may have a preservative effect".38  In making this statement, the Panel "seriously misrepresent[ed] 
the technical evidence supplied" by the European Communities' expert.39  The Panel stated that "3% 
salt may prevent spoilage, albeit for a period of only a few days", whereas what the European 
Communities' expert had stated was that a level of salt of 3 per cent in  a raw and chilled product   is 
too low to prevent spoilage for more than a few days.40   
                                                      
34Chapter 2 of the Harmonized Commodity Description and Coding System is attached as Annex IV to 
this Report. 
35European Communities' appellant's submission, para. 62 (referring to Panel Reports, paras. 7.117-
7.149). 
36Ibid. (referring to the Panel's reference to Sir Ian Sinclair, The Vienna Convention on the Law of 
Treaties , 2nd edn (Manchester University Press, 1984), p. 121, quoted at Panel Reports, footnote 153 to 
para. 7.105). 
37Ibid., para. 62. 
38Ibid., para. 63 (referring to Panel Reports, para. 7.146).  
39Ibid., para. 63.  
40Ibid., paras.  63-64 (referring to Panel Reports, footnote 249 to para. 7.146).   WT/DS269/AB/R 
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18. Secondly, the European Communities challenges the Panel's finding that certain products 
under heading 02.10 such as Parma ham, prosciutto , and jamón serrano require further preservation 
after salting.  The European Communities argues that  it is not the salt content of these products that 
makes additional means of preservation necessary a nd that these additional means of preservation are 
not required .  In support of its contention, the European  Communities refers to certain statements 
made by its expert.
41  Thirdly, the European Communities ch allenges the Panel's finding according to 
which the European Communities acknowledged that  products covered by heading 02.10 of the 
EC Schedule "may require means of preservati on in addition to [salting]" and that this 
acknowledgement "support[s] ... the view that a produc t preserved by salt for relatively short periods 
of time is not necessarily precluded" from falling under heading 02.10.42  The European Communities 
argues that it did not make such an acknowledgement, but rather that it only pointed out that 
preservation by salting did not imply that meat c ould not be "further preserved by other means".43  In 
the European Communities' view, there is no logi cal connection between this observation of the 
European Communities and the Panel's conclusion from it. 
(b) Context 
19. The European Communities submits that the Pane l erred in interpreting the term "salted" 
when considering the term in its context.  First, as  regards the terms "salted, in brine, dried, smoked" 
in heading 02.10, the Panel wrongly found that the term "in brine" excludes the notion of 
preservation.  The Panel found that "brine" is "water containing salt".44  In the European 
Communities' view, the words "to salt" and "sa lted"—which the Panel had previously cited 
correctly—"make it quite clear" that the action of pu tting a product in brine is intended to preserve the 
product.45  In support of its argument, the European Co mmunities also refers to heading 08.12 of the 
Harmonized System, which states that brine is a "preservative solution".46 
20. Secondly, the European Communities submits that  the Panel erred in failing to take into 
account what, according to the European Communities, are the "exclusive distinguishing 
characteristics" of the terms "salted, in brine, dr ied, smoked" in heading 02.10.  The Panel provided 
no explanation for its conclusion that the dictionary  meanings of these terms "are broader than just 
                                                      
41European Communities' appellant's submission, paras. 66-67.  
42Ibid., para. 69 (quoting Panel Reports, para. 7.149). 
43Ibid., para. 70.  
44Ibid., para. 77. 
45Ibid. 
46Ibid., para. 79.  WT/DS269/AB/R 
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pertaining to preservation".47   The terms "dried" and "smoked"  may have different meanings in 
different contexts, but, with respect to meat and f ood, the dictionary definitions point to means of  
preservation .  The Panel failed to identify the "intrinsic notion common to all terms" in 
heading 02.1048;  all four terms in heading 02.10 include the concept of preservation, while only two 
of them involve the concept of preparation.  More over, the Panel also disregarded the fact that the 
four processes referred to in heading 02.10 are the only ones commonly applied to the preservation of 
meat, and that the group of meats covered by headi ng 02.10 are the only meats to have this feature in 
common.49  The European Communities' further points out  that meat that has been "subjected to 
processes" (that is, "prepared") is "generally classi fied" under Chapter 16 of the Harmonized System;  
this shows that, there must be "something special " about the products falling under heading 02.10.  
This special feature, the European Communiti es submits, relates to the processes applied under 
heading 02.10, namely, processes resulting in preservation of the meat.   
21. Thirdly, the European Communiti es challenges what it considers to be the Panel's "failure to 
take account of [the] distinguishing features of heading 02.10 in Chapter 2".50  According to the 
European Communities, the headings in that Chapter form two categories, based on whether or not the 
meat has been subjected to the processes listed in  heading 02.10.  If those processes have been 
applied, the products fall under heading 02.10, which alone comprises the second category within 
Chapter 2.  If those processes have  not  been applied, the products fall under one of headings 02.01 
through 02.08, which make up the first category with in Chapter 2.  The European Communities also 
notes that headings 02.01 through 02.08 refer to th e refrigeration of meat, and that heading 02.10 
contains no reference to refrigeration.  According to  the European Communities, this implies that, for 
the products listed in heading 02.10, "the issue of  refrigeration is not a significant consideration".51   
22. The European Communities also refers to  the Explanatory Note to Chapter 252, which speaks 
of "fresh" meat, "packed with salt as a temporary preservative during transport".  According to the 
European Communities, the use of the word "tem porary" in the Explanatory Note is "implicitly 
opposed" to permanent salting, with the result that  heading 02.10 does not cover meats that are 
                                                      
47European Communities' appellant's submission, para. 81 (quoting Panel Reports, para. 7.162). 
48Ibid., para. 82 (quoting Panel Reports, para. 7.161). 
49Ibid., para. 83. 
50Ibid., heading III.C.4.  
51Ibid., para. 89. 
52In its appellant's submission, the European Commun ities referred to this Note as "Chapter Note". 
(Ibid., para. 92)  Subsequently, the European Communities clar ified that this Note is properly characterized as 
"Explanatory Note to Chapter". (European Communities'  appellee's submission, footnote 50 to para. 71)  WT/DS269/AB/R 
WT/DS286/AB/R Page 10 
 
 
temporarily preserved by salt during transport.
53  The Note also makes it clear that the mere presence 
of some salt does not make a product "salted" for the purposes of heading 02.10.  The Note further 
suggests that not every change in the characteristic s of a product, brought about by salting, means that 
a product falls under heading 02.1054; rather, heading 02.10 refers  to the result achieved by 
preservation.  The European Communities also argues that the Panel's finding that the term "salted" 
does not necessarily require that salting be suffici ent for preservation is "legally irrelevant"55; this is 
so because the Explanatory Note makes it clear that the fact that a preservation technique other than 
those listed in heading 02.10 might be applied do es not alter the classification of that product. 
23. In addition, the European Communities argues that  the Panel failed to take proper account of 
the "historical basis" of heading 02.10.56  At the outset, the European Communities considers the 
Panel's approach to be flawed because the Pa nel started with the negotiating history of the 
Harmonized System, rather than with the terms of  that instrument.  The Panel also "overlooked 
important elements" of the history of the Harmonized System that "clearly support the notion of preservation as the basis for heading 02.10."
57  
24. The European Communities disagrees with the Panel that the Geneva Draft Nomenclature 
of 193758 and the Brussels Nomenclature of 195959 are of "limited relevance" because of the changes 
in trade patterns and technology since their conclusions.60  The Panel failed to consider the 
introduction of refrigeration in de veloped countries as a major technological change.  Given the 
absence of refrigeration in the past, trade in items  such as salted, dried, or smoked meat "would not 
have been possible unless [these products] had been preserved".61   Furthermore, when the Brussels 
Nomenclature was introduced, the words "[c]ooked or  otherwise simply prepared" were moved from 
the relevant heading of the Geneva Draft Nomencla ture to Chapter 16 of the Brussels Nomenclature, 
suggesting that "there must have been a positive d ecision to keep the salted ... meats in a distinct 
category", namely a category characterized by preservation.62  According to the European 
                                                      
53European Communities' appellant's submission, para. 93.  
54Ibid., para. 96.  
55Ibid., para. 98.   
56Ibid., heading III.C.5.  
57Ibid., para. 100.  
581937 Draft Customs Nomenclature of the League of Nations. 
591959 Brussels Convention on Nomenclature for the Classification of Goods in Customs Tariffs. 
60European Communities' appellant's submission, pa ra. 101 (quoting Panel Reports, para. 7.198). 
61Ibid., para. 103.  
62Ibid., para. 106.    WT/DS269/AB/R 
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Communities, when the Harmonized System was intr oduced, there was no indication that the drafters 
intended to change the scope of the heading pe rtaining to "salted, dried or smoked meat". 
(c) Subsequent Practice 
25. The European Communities claims that the Pa nel erred in interpreting and applying the 
concept of "subsequent practice" within the meaning of Article 31(3)(b) of the  Vienna Convention .  
The Panel erroneously "consider[ed] that the unilatera l 'practice' of one party could have a bearing on 
[the interpretation of] a multilaterally agreed text a nd ... wrongly analyz[ed] the existence of 'practice' 
at the EC and multilateral level."63  The European Communities app eals the Panel's conclusion that 
the individual classification decisions of certain port authorities within the European Communities 
between 1996 and 2002 constitute "s ubsequent practice" within the meaning of Article 31(3)(b) for 
the purpose of interpreting heading 02.10 of the EC Schedule.   
(i) "Concordant" and "Common" Practice 
26. The European Communities challe nges the Panel's application of relevant Appellate Body 
jurisprudence regarding Article 31(3)(b).  That juri sprudence emphasizes that, in order to establish the 
common intentions of the parties, subsequent  practice must entail a "concordant, common and 
consistent" sequence of acts or  pronouncements that establishes a discernible pattern, implying the 
agreement of the parties regarding the interpretation of the treaty.64  The European Communities 
submits that a key legal issue before the Appellate Body in this proceeding is whether unilateral acts 
of one WTO Member that have been met with silence by other WTO Members can qualify as 
"subsequent practice" within the meaning of Article  31(3)(b), for purposes of interpreting WTO law.  
Such acts, in the European Communities' view, do not represent a concordant and common expression 
of the parties' understanding of the law.65 
27. In this regard, the European Communities subm its that a commentary of the International 
Law Commission (the "ILC"), relied on by the Panel, supports, in fact, the European Communities' 
point of view.  The relevant statement of the ILC indicates that not all signatories must have engaged 
in a particular practice so as to show that all Members have accepted that practice.66  The European 
                                                      
63European Communities' Notice of Appeal (attached as Annex I to this Re port), paragraph 2(c). 
(footnote omitted) 
64European Communities' appellant's submission, pa ras. 111-112 (quoting Appellate Body Report, 
Japan – Alcoholic Beverages II , p. 13, DSR 1996:I, 97, at 106;  Appellate Body Report, Chile – Price Band 
System , para. 214;  and Appellate Body Report, US – Gambling , paras. 191-192). 
65Ibid., para. 116. 
66Ibid., para. 118 (referring to the quotation of the ILC Commentary in Panel Reports, para. 7.252).  WT/DS269/AB/R 
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Communities argues that this statement implies that  Article 31(3)(b) does not necessarily require, in 
all circumstances, that  all  parties to a treaty must have actively engaged in a practice;  however, the 
statement does  not  support the "directly opposite" view that the practice of  one  party alone will 
suffice.
67  Under public international law, the type an d degree of practice required to establish the 
"agreement of the parties [to a treaty] regarding its interpretation" must be ascertained on a case-by-case basis.
68  To this end, the European  Communities relies on the ILC co mmentary that "the value of 
subsequent practice varies according[ly] as it show s the common understanding of the parties as to the 
meaning of the terms"69, a view also reflected by other commentators.70 
28. The European Communities refers to  the Appellate Body Report in  US – Gambling   to 
demonstrate the importance placed by the Appe llate Body on the subsequent practice being 
"concordant" and "common".71  It notes that WTO Members have agreed upon a specific procedure 
for adopting interpretations of WTO la w, namely Article IX:2 of the  WTO Agreement .  According to 
the European Communities, this provision warrants a narrow application of Article 31(3)(b) of the  
Vienna Convention , as exemplified by the Appellate Body finding in  Japan – Alcoholic Beverages II ;  
in that dispute, the Appellate Body found that  adopted GATT panel reports and WTO panel reports 
cannot qualify as "subsequent practice".72  Article IX:2 of the WTO Agreement also implies that any 
practice that is considered for the interpretation of the multilateral trade agreements must take the 
form of overt acts that are  explicitly   submitted for the consideration of all WTO Members and  
adopted by a large majority of the WTO Membership.73  In support of its position, the European 
Communities notes that the Appellate Body and panels have so far consistently denied the status of 
"subsequent practice" to  all  examples of both multilateral and unilateral acts invoked by parties as 
subsequent practice.74  
                                                      
67European Communities' appellant's submission, para. 118. 
68Ibid., para. 120 (quoting Article 31(3)(b) of the Vienna Convention ). 
69Ibid., para. 119 (quoting Yearbook of the International Law Commission  (1966), Vol. II, p. 222, 
para. 15).  
70Ibid., footnote 68 to para. 119 (quoting M. Yasseen, "L'interprétation des Traités d'après la 
Convention de Vienne sur le Droit des Traités", in  Recueil des Cours de l'Académie de Droit International  
(1976), Vol. III, p. 48, para. 16). 
71Ibid., paras. 118-128 (quoting Appellate Body Report, US – Gambling , para. 192). 
72Ibid., para. 123 (quoting Appellate Body Report, Japan – Alcoholic Beverages II , p. 14, DSR 1996:I, 
97, at 108). 
73Ibid., para. 124. 
74Ibid., paras. 125-126 (referring to Appellate Body Report, Japan – Alcoholic Beverages II , pp. 10-12, 
DSR 1996:I, 97, at 106-107;  Decision by the Arbitrator, US – Offset Act  (Byrd Amendment) (EC) (Article 22.6) , 
footnote 57 to para. 3.42;  Panel Report, US – FSC , para. 7.75;  Appellate Body Report, US – Gambling , paras. 
192-194;  Appellate Body Report, Chile – Price Band System , para. 232;  and Panel Report, Canada – Patent 
Term , para. 5.5 and footnote 48 to para 6.89).  WT/DS269/AB/R 
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29. Moreover, the European Communities alleges th at the Panel, in its interpretation and 
application of Article 31(3)(b), failed to take into account the specific context of WTO Members' 
Schedules and the Harmonized System.  The Europ ean Communities disagrees with the Panel that, 
because Schedules are particular to each Member, a Schedule should be interpreted exclusively in accordance with a specific Member's subsequent prac tice (unless objected to by the other parties).  
This argument runs contrary to Members' inte ntion that Schedules follow the Harmonized System, 
absent any clear indication to the contrary.  The term "salted" appears in heading 02.10 of the 
Schedule of all WTO Members and thus should not be defined unilaterally.  The European 
Communities submits that the Panel's finding would undermine the predictability and stability of the 
multilateral Schedules and the application of the Ha rmonized System because the Harmonized System 
confers exclusive authority for interpreting the nomenclature to the Harmonized System Committee 
and Council.
75  The European Communities emphasizes th at WTO Members' Schedules form an 
"integral part" of the GATT 1994, that they reflect rights and obligations of both importing and exporting Members, and that there is no differe nce between Schedules and other WTO obligations.
76  
Therefore, no individual Member's practice should be  preferred over that of any other Member.   
30. The European Communities also notes th at the Appellate Body rejected, in EC – Computer 
Equipment , the notion of "legitimate expectations" in th e context of customs classification, as well as 
the argument that unilateral acts of WTO Members, and lack of reaction thereto, are relevant for purposes of interpreting WTO law.
77 
(ii) "Consistency" of Practice 
31. The European Communities submits that the Pane l misapplied the concept of "consistency" of 
the alleged subsequent practice;  the Panel's finding that the alleged practice is "consis tent" is based 
on errors in respect of the object and the "geographic" and "systemic" scope of th is practice, as well as 
its duration.78  The European Communities argues that the Pa nel interpreted the term "salted" in two 
multilateral treaties (namely, the Schedules attached to the  WTO Agreement   and the Harmonized 
System) on the basis of the "subsequent practice" of only  one  Member, even though that Member 
itself had already "disavowed" that practice.79 
                                                      
75European Communities' appellant's submission, pa ra. 136 (referring to Articles 7 and 8 of the 
Harmonized System Convention). 
76Ibid., para. 131 (quoting Appellate Body Report, EC – Computer Equipment, para. 109). 
77Ibid., para. 143. 
78Ibid., para. 148. 
79Ibid., para. 170. WT/DS269/AB/R 
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32. The European Communities submits that the Pa nel failed to examine the "totality" of the 
European Communities' legal system in  its interpretation of heading 02.10.
80  The European 
Communities notes that the Appellate Body has em phasized the need to consider implementing 
legislation on customs classification as well as classification practice during the Uruguay Round negotiations, and asserts that a series of contradic ting acts would not permit a finding of "consistent 
practice".
81  Accordingly, the Panel should have taken into account relevant jurisprudence of the 
European Court of Justice (the "ECJ") regardin g the scope of heading 02.10 of the European 
Communities' Combined Nomenclature, a number of Explanatory Notes, and Binding Tariff 
Information ("BTI") notices relating to headi ng 02.10, all of which emphasize the notion of 
preservation under the European Communities' regime for classification of products under heading 02.10.  Although the Pa nel referred to minutes of European Communities' customs committee 
meetings in 2002, it failed to consider the legisl ative measures that eventu ally resulted from those 
meetings.
82 
33. The European Communities argues that the Panel should not have limited its examination of 
the consistency of practice to the treatment of frozen salted chicken cuts with a salt content of 
between 1.2 and 3 per cent alone.  Given that the interp retative issue to be resolved in this dispute is 
the meaning of the term "salted" in the concession contained in heading 02.10,  relevant practice with 
respect to  all  kinds of salted meat subject to that headi ng should have been examined by the Panel.   
34. The European Communities also chal lenges what it considers to be the Panel's failure to take 
into account relevant export classification prac tice of Brazil and Thailand.  The European 
Communities contends that the definition in the Ha rmonized System of "customs tariff nomenclature" 
is not limited to the purpose of "levying duties of Customs on imported goods" as suggested by the Panel, and that the use of the Harmonized System is  required for trade statistics for both imports and 
exports.
83  According to the European Communities, neith er Brazil nor Thailand argued that they used 
a classification system for exports different from the Harmonized System, and the export statistics of 
Brazil and Thailand, as well as of the United States , demonstrate that these countries accepted that 
such salted meats fell under heading 02.07.84 
                                                      
80European Communities' appellant's submission, para. 273. 
81Ibid., para. 159 (referring to Appellate Body Report, EC – Computer Equipment , para. 94). 
82Ibid., para. 146 (referring to Panel Reports, paras. 7.269-7.270).  See also European Communities' 
appellant's submission, para. 164. 
83Article 1(c) of the Harmonized System Convention;   European Communities' appellant's submission, 
para. 154 (quoting Panel Reports, para. 7.284).  
84European Communities' appellant's submission, para. 157.  WT/DS269/AB/R 
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35. In addition, the European Communities argues th at the jurisprudence of the International 
Court of Justice demonstrates that subsequent practice is established on the basis of the actions of 
high-level governmental representativ es who have "international obliga tions" in mind, rather than on 
the basis of the daily ac tivities of customs officers.85  The European Communities is of the view that 
the Panel "confused" Article 31(3)(b) with the conc ept of State responsibility, under which countries 
may be liable for acts of their officials.86   
36. The European Communities also challenges the Panel for basing its finding of "consistency" 
on classification decisions by European Communities'  port authorities during a limited period, namely 
between 1996 and 2002.  The European Communiti es submits that the Panel failed to examine 
"consistency over time" and that it should not have  relied on customs classification practice that had 
been corrected and thereby modified.87  If the Appellate Body considers that the classification practice 
of WTO Members is relevant for the interpreta tion of heading 02.10, the European Communities 
concludes that such practice would support its own position with respect to the meaning of the term 
"salted", namely, as requiring salting for preservation.88 
(d) Object and Purpose 
37. The European Communities submits that the Pa nel incorrectly distinguished between the 
object and purpose of the treaty and that of individual provisions of the treaty.  The European Communities asserts that the Panel should have ascert ained the object and purpose of Article II of the 
GATT 1994, read in conjunction with heading 02.10 of the EC Schedule.
89 
38. The European Communities also argues that the Panel erred in holding that "concessions 
made by WTO Members should be interpreted so as to further the general objective of the expansion 
of trade in goods and the subs tantial reduction of tariffs".90  The Panel failed to adequately consider 
that the true object and purpose of Article II of the GATT 1994 is the security and predictability of 
                                                      
85European Communities' appellant's submission, para. 165 and footnote 94 thereto. 
86Ibid., para. 167.  
87Ibid., paras. 168-170. 
88Ibid., paras. 171-174.  See also para. 219. 
89Ibid., paras. 180-181.  The European Communities relie s, in support of its argument, on Appellate 
Body Report,  US – Line Pipe , para. 81 (on the object and purpose of Article XIX of the GATT 1994);  
Appellate Body Report, Chile – Price Band System , para. 234 (on the object and purpose of Annex 4 of the 
Agreement on Agriculture );  and Appellate Body Report, EC – Computer Equipment , para. 84 (stating that 
concessions provided for in a GATT Schedule are, by virtue of Article II:7 of the GATT 1994, part of the terms of the treaty).   
90Panel Reports, para. 7.320 (quoted in European Communities' appellant's submission, para. 183). WT/DS269/AB/R 
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reciprocal market access arrangements.
91  This goal would be undermined  if panels were allowed to 
accord a "bias" towards a reduction in tariffs, and if the concessions in Members' Schedules were to 
be interpreted on the basis of the subjectiv e views of certain exporting Members alone.92  I n  t h e  
European Communities' view, such a "bias" would be inconsistent with Article 3.2 of the DSU. 
39. In addition, the European Communities challe nges the Panel's finding that the notion of 
"long-term preservation" is "uncertain" and thus in consistent with the objective of security and 
predictability of tariff concessions.93  The European Communities considers that the terms "long-term 
preservation" and "preservation" are not intrinsically  uncertain, given their use under other headings 
of the Harmonized System.  The European Commun ities disputes that a customs official will face 
uncertainty in applying the criterion of long-term pr eservation;  in particular for a customs official 
with access to tools of analysis, the "highly trad itional" products classifiable under heading 02.10 are 
"recognizable" and "well-known".94  Moreover, the Panel's finding of uncertainty in the notion of 
"long-term preservation" is vitiated by its failure to a pply the same test to the alternative criterion of 
"preparation", as proposed by Brazil and Thailand.  
40. Finally, the European Communities argues that the Panel's own interpretation of 
heading 02.10 undermines the objective of prot ecting and preventing circumvention of tariff 
concessions negotiated and settled in trade nego tiations.  The Panel ignored the European 
Communities' argument that heading 02.10 does not  have the object and purpose of securing market 
access arrangements for frozen poultry, and that ne gotiating parties knew that a product would need to 
be salted so as to ensure its preservati on in order to qualify under heading 02.10.95 
2. Interpretation of the EC Schedule in the Light of Article 32 of the Vienna 
Convention  
(a) Circumstances of Conclusion 
41. The European Communities submits that the notion of "circumstances of [a treaty's] 
conclusion" within the meaning of Article 32 of the Vienna Convention should be interpreted 
narrowly.  Drawing on academic commentators 96, the European Communities argues that 
                                                      
91European Communities' appellant's submission, para s. 184-188 (referring to Appellate Body Report, 
EC – Computer Equipment , para. 82;  and Appellate Body Report, US – Gambling , para. 189).   
92Ibid., para. 189. 
93Ibid., para. 190 (referring to Panel Reports, para. 7.323). 
94Ibid., para. 207. 
95Ibid., paras. 212-218. 
96Yasseen, supra , footnote 70, p. 93.  WT/DS269/AB/R 
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circumstances of a treaty's conclusion must have directly influenced the common intentions of  all 
parties to the treaty.97  The "multilateral aspect" of the circum stances of a treaty's conclusion has also 
been emphasized by the Appellate Body, suggesting a "stringent" threshold for using "practice" of 
Members as supplementary means for interpretation of WTO law.98  In this respect, the European 
Communities also considers relevant its arguments relating to "subsequent practice", including the 
need for deference to the formal pr ocedure under Article IX:2 of the  WTO Agreement  and the need 
for such practice to demonstrate a high degree of consistency.99  
42. The European Communities does not dispute th at customs classification law and practice 
prior to and during negotiations of a treaty may quali fy as "circumstances of [a treaty's] conclusion".  
However, the European Communities asserts that th e Panel contravened the explicit guidance of the 
Appellate Body in  EC – Computer Equipment  to the effect that the classification practice of the 
European Communities must not be considered sep arately from its customs legislation;  that 
classification practice of other WTO Members must also be taken into account;  that practice regarding a tariff heading must include the interpreta tion of that heading "in all circumstances";  and 
that such practice "must have endured".
100 
43. The European Communities also challenges th e Panel's observations on the timing of the 
"circumstances".  According to the European Co mmunities, a "circumstance" in the form of a 
"condition relating to a negotiating part y" must have been an objective fact, evident to all negotiators 
at the time, and must be analyzed on a case-by-case basis.101 
44. Finally, the European Communities challeng es the Panel's concept of "constructive 
knowledge", whereby all negotiating parties are deem ed to have knowledge of a particular act or 
instrument of a WTO Member once it has been published.102  The European Communities also 
disagrees with the Panel that an event that is de emed to be known by the participants in the 
negotiations could have influenced the negotiators and is relevant for the interpretation of a treaty 
under Article 32.  The European Communities argu es that "deemed knowledge" cannot substitute the 
                                                      
97European Communities' appellant's submission, paras. 228-230. 
98Ibid., para. 233 (referring, inter alia , to Appellate Body Report, EC – Computer Equipment , para. 93). 
99Ibid., paras. 234-235. 
100Ibid., para. 240. 
101Ibid., paras. 245-253.  The European Communities relies on Appellate Body Report, US – Gambling , 
footnote 244 to para 196;  Panel Report, Mexico – Telecoms , para. 7.44;  Appellate Body Report, Canada – 
Dairy, para. 139;  Appellate Body Report, EC – Computer Equipment , para. 92;  and Yasseen, supra , 
footnote 70, p. 90. 
102European Communities' appellant's submission, para. 254 (referring to Panel Reports, para. 7.346). WT/DS269/AB/R 
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need to demonstrate a "direct link" between a circumstance and the common intentions of the 
parties.
103 
(b) Characterization of Relevant Law of the European Communities 
45. The European Communities submits that the Pa nel mischaracterized the law and practice of 
the European Communities, in particular EC Regul ation 535/94, and that this mischaracterization 
amounts to a distortion of facts contrary to Article 11 of the DSU.104  The European Communities 
challenges the Panel's use of this law and classifica tion practice on the grounds that there was no trade 
in the products at issue at the time of the ne gotiations.  The Panel should have considered the 
"totality" of the European Communities' legal system, including Section Notes, Chapter Notes, 
relevant Subheading Notes, and Explanatory Not es of the Combined Nomenclature, as well as the 
classification opinions of the European Communities and judgments of the ECJ.105  
46. The European Communities challenges the Panel's interpretation of the ECJ's Gausepohl  
judgment106 as not being necessarily governed by the principle of "long-term preservation".107  
According to the European Communities, the Pa nel erred in finding that EC Regulation 535/94 
"superseded" the long-term preservation criterion in heading 02.10 of the Combined Nomenclature as 
recognized in the Gausepohl judgment.108  A Commission Regulation cannot override an 
interpretation given by the ECJ to the Combined  Nomenclature, where that Nomenclature is 
implementing the Harmonized System.  The Eur opean Communities argues that the Panel also 
incorrectly "dismissed" relevant Explanatory No tes to the Combined Nomenclature, although these 
Notes remained relevant for assessing classification pr actice even after the insertion of the Additional 
Note to the Combined Nomenclature through EC Regulation 535/94.109  
47. The European Communities submits that, if the pr actice of all participating treaty parties must 
be taken into account when considering "circumstanc es of conclusion", this should extend to practice 
regarding all meat that is "salted, in brine, dried or smoked".110  In this respect, the Panel erred in 
                                                      
103European Communities' appellant's submission, para. 262. 
104Ibid., para. 288. 
105Ibid., para. 273. 
106European Court of Justice, Judgment, Gausepohl-Fleisch GmbH v. Oberfinanzdirektion Hamburg , 
Case C-33/92, ECR [1993] I-3047. 
107European Communities' appellant's submission, pa ras. 275-276 (referring to Panel Reports, 
paras. 7.398-7.400). 
108Ibid., para. 278 (referring to Panel Reports, para. 7.402). 
109Ibid., para. 286. 
110Ibid., para. 294.  WT/DS269/AB/R 
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rejecting a United States' customs classification ru ling of 1993 regarding salted beef as evidence that 
heading 02.10 covers meat salted for preservation.   
48. The European Communities is of the view that  the Panel failed to determine properly the 
scope of relevant "circumstances" within the mean ing of Article 32 as being those circumstances that 
could have influenced the common intentions of th e parties with respect to heading 02.10 of the 
EC Schedule.111  The Panel failed to consider that the principle of preservation (as reflected in a 
United States classification ruling of 1993, and in European Communities' judgments and Explanatory 
Notes since the early 1980s) "prevailed" throughout the entire duration of the Uruguay Round 
negotiations in the minds of the negotia tors with respect to heading 02.10.112  This practice was 
"confirmed through trade statistics which showed th at only limited trade entered under heading 02.10, 
whereas the contentious i ssue was fresh, chilled and frozen [poultry] meat".113   
49. The European Communities also argues that the results of tariff negotiations between 1986 
and 15 December 1993 could not be altered by unilateral measures of one WTO Member.114  An act 
taken during the so-called verification pe riod prior to the final adoption of the WTO Agreement  could 
be of relevance, but compelling evidence would be required to prove that the negotiators had taken 
note of such act.  No such evidence exists with  respect to EC Regulation 535/94, in particular, 
because of its complex legal relationship with pre- existing ECJ case-law and Explanatory Notes to the 
Combined Nomenclature, as well as the absence of an y discussion of this Regulation, or the scope of 
heading 02.10, at any point during the negotiations, the verification period, or thereafter.  
50. The European Communities furt her challenges the Panel's finding that tariff classification 
laws and practice that do not amount to "subsequent  practice" under Article 31(3)(b) may nonetheless 
be relevant as supplementary mean s of interpretation under Article 32.115  In the European 
Communities' view, a "high standard of consistency" would have to be demonstrated for such practice 
also to be relevant under Article 32.116  In any event, no exporter or Member State of the European 
Communities has challenged in the Eu ropean Communities' legal system  the measures that "rectified" 
                                                      
111European Communities' appellant's submission, para. 295. 
112Ibid., para. 306. 
113Ibid., para. 307. 
114Ibid., para. 304. 
115Ibid., paras. 312-314 (referring to Panel Reports, para. 7.422). 
116Ibid., para. 313. WT/DS269/AB/R 
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the "temporary circumvention" of the application of heading 02.10.
117  Moreover, neither Brazil nor 
Thailand has sought a classification ruling from the WCO. 
51. Finally, the European Communities disagrees w ith the Panel that the Panel's conclusions 
under Article 32 were a "confirmation" of the meani ng of heading 02.10 that it had derived from the 
application of Article 31.118  According to the European Comm unities, the Panel's conclusions under 
Article 32 are formally different and have a differe nt scope than those under Article 31, and the Panel 
used Article 32 not to confirm, but to alter th e meaning it had derived from its application of 
Article 31 of the  Vienna Convention .  
B. Arguments of Brazil – Appellee 
1. Interpretation of the EC Schedule in the Light of Article 31 of the Vienna 
Convention  
(a) Ordinary Meaning 
52. Brazil argues that the "factual context" of the term  "salted", as identified by the Panel, is not 
only relevant, but must be taken into account in in terpreting the term "salted" in heading 02.10 of the 
EC Schedule.  In the light of the European Commun ities' arguments about the nature of "salted" meat 
products, the Panel had to determ ine whether the facts involving salted meat in this dispute 
corresponded to what the Panel had concluded was the ordinary meaning of the term "salted".  
Although "factual context" is not re ferred to explicitly in the rules of treaty interpretation as codified 
in the  Vienna Convention , such an analysis is included within a panel's functions as set out in 
Article 11 of the DSU.  Brazil contends that a treat y interpreter must know the facts of a case in order 
to properly apply the law to that case. 
53. Brazil also rejects the European Communities' allegations that the Panel violated Article 11 of 
the DSU by distorting the available evidence on the r ecord.  With respect to the Panel's finding that 
even small quantities of salt have a preservative effe ct on meat, Brazil argues that this conclusion was 
primarily based on technical literature presented by  Brazil, rather than on the evidence of the 
European Communities' expert.  According to Br azil, the European Communities is, in effect, 
questioning the Panel's factual findings, in partic ular the Panel's appreciation of a given piece of 
evidence.  In any event, the Panel did not misrep resent the statement of the European Communities' 
expert.   
                                                      
117European Communities' appellant's submission, para. 314. 
118Ibid., paras. 315-318 (referring to Panel Reports, paras. 7.332 and 7.423).  WT/DS269/AB/R 
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54. With respect to the Panel's finding that certain types of meat falling under heading 02.10 may 
require additional means of preservation, Brazil main tains that the reasons that such meats require 
preservation are of "no relevance to the point at issue"119;  regardless of whether spoilage is due to the 
effect of slicing (growth of moulds and yeast), as argued by the European Communities, or due to 
rancidity, the fact remains that further preservation is required to prevent such spoilage.  Finally, 
contrary to the European Communities' arguments,  Brazil asserts that th e evidence on the record 
supports the Panel's finding that a product preserved by  salt for relatively short periods of time is not 
necessarily precluded from qualifying under heading 02.10  of the EC Schedule.  Brazil submits that it 
"seems a fair assessment [of the Panel] that sliced non-refrigerated meat is preserved by salt for a shorter period of time than sliced refrigerated meat".
120  
(b) Context 
55. Brazil rejects all of the European Communitie s' arguments challenging the Panel's findings 
regarding the "context" of the term "salted".  Brazi l argues that the term "in brine" is broader than 
"preservation", such that, even if  "preservation" ma y be "one of the possible meanings ascribed to the 
term" "in brine", it is not the exclusive meaning.121  According to Brazil, the fact that heading 08.12 
refers to "brine" as a "preservative solution" do es not lend support to the European Communities' 
argument that the term "in brine" exclusively re lates to preservation.  Brazil refers to the WCO 
Secretariat's letter to the Panel, which stated that, in the absence of an explicit provision that the term 
"preserved" has a "certain influence" on head ing 02.10, that term has no relevance for the 
classification of salted meat under heading 02.10.122 
56. Brazil furthermore argues that preparation, and not preservation, is the "exclusive 
distinguishing characteristic common to all terms in heading 02.10".123  Brazil alleges that the terms in 
heading 02.10 have ordinary m eanings other than preservation and that the terms "dried" and 
"smoked" in relation to food and meat do not exclusively deal with preservation. 
57. Next, Brazil argues that the structure of Chapter 2 of the Harmonized System supports 
Brazil's interpretation that heading 02.10 refers to  preparation, rather than preservation.  Brazil 
disagrees with the proposition that refrigeration is  the distinguishing feature of headings 02.01 
to 02.08.  Rather, heading 02.10 is an exception that c overs all types of meat that have been salted, put 
                                                      
119Brazil's appellee's submission, para. 70. 
120Ibid., para. 75.  
121Ibid., para. 83. 
122Ibid., para. 86;  Panel Reports, p. C-143, para. 12.   
123Ibid., heading II.B.2.   WT/DS269/AB/R 
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in brine, dried, or smoked.  The European Co mmunities is also wrong, according to Brazil, in 
suggesting that the absence of a reference to  refrigeration under heading 02.10 implies that 
refrigeration is not significant for that heading.  Brazil argues that the reason refrigeration is not 
referred to in heading 02.10 is "because what gives the product its character ... is simply that [this 
product] has been salted, brined, dried or smoked".
124  Brazil also refers to the Explanatory Note to 
Chapter 2 of the Harmonized System and argues that the reference there to fresh meat "packed with 
salt as a temporary preservative during transport"  does not support the European Communities' 
position because  preparing   with salt is different from  packing   with salt.125  "Preparing" with salt, 
according to Brazil, entails a process that leaves meat in a state different from its natural state.   
58. Finally, Brazil takes issue with the European Communities' arguments regarding the historical 
basis of heading 02.10.  Brazil argues that refrige ration existed, and was provided for, in the 1937 
Geneva Draft Nomenclature.  Brazil also contends that the European Communities misrepresents the 
subject of Item 18 of the Geneva Draft Nomencla ture.  Contrary to the European Communities' 
arguments, Item 18 does not refer to slightly salted, dried, and smoked meat, but rather to meat that 
has been "simply prepared".  Brazil also disagrees  with the European Communities' contention that 
the phrase "otherwise simply prepared" in Item 18 is  of no significance.  The fact that cooked meats 
were included under Item 18—together with sal ting, putting in brine, drying, and smoking—
demonstrates that all such meats were simple prep arations, and that Item 18 was not intended for the 
purpose of preservation.  Brazil also contends that th e fact that the term "cooked or otherwise simply 
prepared" was moved from Chapter 2 to Chapter 16 in the Brussels Nomenclature "does not change 
the fact that [the Harmonized System] Notes to Chapter 16 and [the Harmonized System] Explanatory 
Notes to Chapter 2 expressly refer to the processes listed in Chapter 2 as 'prepared or preserved'".126 
(c) Subsequent Practice 
59. Brazil agrees with the Panel's finding that, in  the present case, the relevant subsequent 
practice is the concordant, common and consiste nt sequence of acts by European Communities' 
customs authorities, occurring subsequent to the entry into force of the EC Schedule, which 
establishes the agreement of WTO Members regardi ng the interpretation of the concession contained 
in heading 02.10 of the EC Schedule. 
                                                      
124Brazil's appellee's submission, para. 100. 
125Ibid., para. 102 (referring to the Explanatory Note to Chapter 2 of the Harmonized System). 
126Ibid., para. 116.   WT/DS269/AB/R 
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(i) "Concordant" and "Common" Practice 
60. Brazil submits that the European Communities is  incorrect in suggesting that the relevant 
question before the Appellate Body in this appeal  is whether acts of one WTO Member that are met 
with silence by other WTO Members can qualify as "subsequent practice".  Brazil acknowledges that 
the classification practice of other Members  may be relevant in the interpretation of tariff concessions 
of a certain Member's Schedule;  however, gi ven that the European Communities was the only 
Member that imported frozen salted chicken cuts a nd had a specific criterion for "salted meat" under 
heading 02.10 of its Combined Nomenclature , the classification practice of the European 
Communities is the only relevant practice in this case.127  Brazil also argues that the relevant acts were 
not objected to because the temporal proximity between the publication of EC Regulation 535/94 and 
the conclusion of the Uruguay Round resulted in "constructive knowledge".128 
61. Brazil submits that the European  Communities has confused the re quirement that parties be in 
agreement on the interpretation of a treaty with the subsequent practice that consolidates that 
agreement.  According to Brazil, Article 31(3)(b) of the Vienna Convention  does not specify the 
number of parties that must engage in the relevant  practice;  rather, the requirement is that the 
subsequent practice must establish the  agreement   of the parties, which, in this case, is established as 
a fact. 
62. Brazil submits that the European Communities'  understanding of the te rm "salted" was known 
to all WTO Members when tariff concessions were ne gotiated, and was accepted by them when they 
signed the  WTO Agreement ;  the authority of the Ministerial Conference and the General Council 
under Article IX:2 of the WTO Agreement  to adopt interpretations of that Agreement must be 
distinguished from the authority of adopted panel re ports as considered by the Appellate Body in 
Japan – Alcoholic Beverages II .129  Brazil finds support in th e Appellate Body Report in Chile – Price 
Band System  for its view that a Member's Schedule im poses obligations on the Member who made the 
concession and not on all Members.130  According to Brazil, the scheduling practice of only one 
Member may be considered relevant in the inte rpretation of its tariff concession, as long as that 
practice amounts to subsequent practice.131 
                                                      
127Brazil's appellee's submission, para. 123. 
128Ibid., para. 125 (referring to Panel Reports, para. 7.361). 
129Ibid., para. 130. 
130Ibid., paras. 133-134 (referring to Appellate Body Report, Chile – Price Band System , para. 272). 
131Ibid., para. 135. WT/DS269/AB/R 
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63. Brazil also disputes the European Communities' argument that there is no difference between 
a WTO Member's Schedule and other WTO obligations .  Brazil refers to the Appellate Body Report 
in  EC – Computer Equipment as support for the proposition that, although  all  Members must agree 
on the scope of a tariff concession made by one Member, that tariff concession applies  only  to that  
one  Member that made the concession.  Tariff concessi ons may be identical in some cases, but the 
obligation under a concession is different from ot her WTO obligations, because it is unique to the 
Member that made it.
132  In Brazil's view, the European Communities, through EC Regulation 535/94 
and the inclusion of Additional Note 7 in the Co mbined Nomenclature, announced to its negotiating 
partners in the Uruguay Round the definition and sc ope of its tariff concession under heading 02.10 of 
its Schedule. 
64. In addition, Brazil disagrees with the European  Communities that the Panel's approach to 
establishing "subsequent practice" is contrary to the WTO Members' intention that Schedules should 
follow the Harmonized System.  Although Schedules should be based on the Harmonized System, they are not identical to it, b ecause the Harmonized System was the starting point, but not necessarily 
the end result, of the negotiation.  Brazil argues that parts of the EC Schedule are based on the 
Combined Nomenclature, which is, in turn, partly  based on the Harmonized System and partly based 
on the subheadings of the Combined Nomenclature  and other provisions.  One such provision is 
Additional Note 7 to the Combined Nomenclature, which provides for a definition of "salted meat" 
that is unique to the EC Schedule and that does not exist in the Schedule of any other Member.
133  
According to Brazil, that definition is "aligned with the terms and structure" of the Harmonized 
System.134  In contrast, the subsequent introduction th rough the challenged measures of the concept of 
"preservation" into heading 02.10 modifies and limit s the Harmonized System.  Brazil submits that 
the predictability and stability of the multilateral Sc hedules would be undermined if the term "salted" 
in heading 02.10 of the EC Schedule were found to re late exclusively to a process that ensures "long-
term preservation".135 
                                                      
132Brazil's appellee's submission, para. 141. 
133Ibid., para. 147. 
134Ibid., para. 149. 
135Ibid., para. 150.  WT/DS269/AB/R 
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(ii) "Consistency" of Practice 
65. Brazil agrees with the Panel's assessment of  "consistency" of the relevant practice.136  
Contrary to the European Communities' assertion, the Panel did not fail to consider the European 
Communities' practice concerning products fallin g under heading 02.10 other than salted frozen 
chicken cuts as well as the practice of Brazil, Tha iland, China, and the United States relating to 
heading 02.10.  In this regard, Brazil points to th e Panel's consideration of a BTI relating to dried 
salted ham.137  Brazil also asserts that the European Co mmunities failed to provide any other evidence 
in support of its contention that some customs o ffices did not classify the products at issue under 
heading 02.10.   
66. Brazil disagrees with the European Communitie s' submission that "subsequent practice" 
generally involves government representatives of a hi gher status than customs officials.  The Panel 
treated correctly the European Co mmunities' classification practice in the light of the Appellate 
Body's finding in  EC – Computer Equipment   that it is the  customs   classification practice of the 
importing Member that is important in the interpretation of tariff concessions.138 
67. Brazil further submits that the Panel did not fail to examine the totality of the European 
Communities' law and jurisprudence surrounding the interpretation of heading 02.10.  Brazil argues 
that the instruments upon which the European Communities would have the Panel rely largely 
predate   the EC Schedule and cannot be considered as "s ubsequent practice" within the meaning of 
Article 31(3)(b) of the Vienna Convention .139  Brazil further notes that minutes of European 
Communities' customs committee meetings in 2002 indicate that the European Communities 
deliberately did not include a reference to "long-te rm preservation" in EC Regulation 535/94.  As to 
consistency over time, Brazil argues that no BTI or  any type of supporting material or documentation 
was produced by the European Co mmunities in support of its argument that classification by its 
customs authorities was not consistent.  Brazil also  agrees with the Panel that post-2002 practice does 
                                                      
136Brazil's appellee's submission, paras. 151-169. 
137Ibid., para. 153 (referring to European Communities' response to Question 53 posed by the Panel, 
Panel Reports, p. C-92). 
138Ibid., paras. 165-166 (referring to Appellate Body Report, EC – Computer Equipment , paras. 93 
and 95-96). 
139Ibid., paras. 160 and 162-164 (referring to European Communities' appellant's submission, 
paras. 159-162;  and Panel Reports, para. 7.393).  These instruments include the ECJ's Dinter and Gausepohl 
judgments and the Explanatory Notes to the Combined Nomenclature.  WT/DS269/AB/R 
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not undermine the Panel's finding that the clas sification practice by the European Communities 
between 1996 and 2002 was consistent.
140 
68. Brazil agrees with the Panel's treatment of the export and import classification practice of 
Brazil and Thailand.141  Brazil states that  export   classification practice is less rigorous than  import  
classification practice because, usually, export du ties are not assessed and traders, rather than 
authorities, often undertake the actual classification.  Moreover, Brazil has never imported  the 
products at issue and, even if it had done so, it is th e practice in the application of heading 02.10 in the 
EC Schedule that is at issue.142  Brazil also supports the Panel's treat ment of the alleged "practice" of 
other WTO Members relating to heading 02.10.  B ecause the evidence before the Panel was limited 
and concerned products that are not the same or id entical to the products at issue, the Panel could 
draw no conclusions from that information.143   
(d) Object and Purpose 
69. Brazil submits that the Panel did not incorrectly  distinguish between the object and purpose of 
the  WTO Agreement   and the GATT 1994, on the one hand, and that of the specific heading in the 
EC Schedule, on the other hand.  Brazil argues that the object and purpose of the treaty   is the relevant 
inquiry, and that the tariff concession containe d in heading 02.10 of the EC Schedule is  part of the 
terms   of that Schedule, which is, in turn, an integral  part of the GATT 1994, pursuant to Article II of 
the GATT 1994.  
70. Brazil also submits that the European Co mmunities misconstrues the Panel's finding by 
arguing that the Panel's interpretation was "bias[ed]"  toward the reduction of tariffs, instead of being 
based on the security and predictability of tariff concessions.144  Brazil points out that the wording of 
the Panel's reasoning flows from the language  in the respective preambles to the  WTO Agreement   
and the GATT 1994. 
71. Brazil argues that the notion of "long-term pre servation", used by the European Communities 
to define the meat classifiable under heading 02.10,  would introduce a "great deal" of uncertainty, 
especially if the test to be applied at customs is  whether the products are "w ell-known" or "instantly 
                                                      
140Brazil's appellee's submission, para. 169 (referring to Panel Reports, para. 7.256). 
141Ibid., para. 155 (referring to Panel Reports, para. 7.284). 
142Ibid., para. 155. 
143Ibid., paras. 157-158 (referring to Panel Reports, para. 7.288). 
144Ibid., para. 179 (referring to European Communities' appellant's submission, para. 189).   WT/DS269/AB/R 
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recognizable".145  Brazil submits that the European Comm unities presented no binding law or act to 
the Panel with a clear definition for the notion of "long-term preservation"146, and that the European 
Communities also failed to indicate where in the Harmonized System the notion of "long-term 
preservation" in relation to meat was to be foun d.  Brazil also disagrees with the European 
Communities that negotiating parties knew that a m eat product had to be salted for preservation to 
qualify under heading 02.10;  rather, the knowledge of  the parties was that heading 02.10 of the 
EC Schedule related to meat deeply and homogeneous ly impregnated with a salt content of not less 
than 1.2 per cent by weight. 
2. Interpretation of the EC Schedule in the Light of Article 32 of the Vienna 
Convention  
72. Brazil proposes that, if the Appellate Body finds that the European Communities' 
classification practice of the products at issue unde r heading 02.10 does not amount to "subsequent 
practice" under Article 31(3)(b), it should consider  the classification practice as supplementary means 
of interpretation under Article 32.  Brazil argues th at supplementary means of interpretation are not 
limited to the "preparatory work" of the treaty and the "circumstances of its conclusion", but can 
include evidence of subsequent practice.147  
(a) Circumstances of Conclusion 
73. Brazil disagrees with the European Communities that, for "circumstances of [a treaty's] 
conclusion" to be relevant, they must have directly influenced the common intention of  all  the 
parties to the treaty.  Brazil refers to the Appellate Body statement in  EC – Computer Equipment that 
customs classification practice of one of the parties may be of relevance and that the importing 
Member's practice is of "great importance" .148  Even though the Appellate Body considered the 
classification practice of exporting Members to be rele vant in that case, the present case is different in 
this respect because there was no customs classifica tion practice of Brazil, Thailand, or European 
Communities' customs authorities regarding the products at issue during the Uruguay Round.  Furthermore, in the dispute in EC – Computer Equipment , the relevant part of the Combined 
Nomenclature did not contain a special criterion to define the product at issue;  by contrast, in the 
present case, EC Regulation 535/94 inserted Additiona l Note 7 in the Combined Nomenclature with a 
                                                     
 
145Brazil's appellee's submission, para. 202 (refe rring to European Communities' appellant's 
submission, para. 207). 
146Ibid., para. 194. 
147Ibid., paras. 207-209 (referring to Sinclair, supra , footnote 36, p. 138). 
148Ibid., para. 216 (referring to Appellate Body Report, EC – Computer Equipment, para. 93). WT/DS269/AB/R 
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special definition for "salted meat" found in heading 02.10.
149  Thus, according to Brazil, in the 
present case, the classification practice of the importing Member is the most, if not the only, relevant 
practice. 
74. With respect to the Panel's concept of "constructive knowledge", Brazil argues that a 
"circumstance" need not be evident to all the nego tiators at the time of conclusion and finds support 
for its view in Appellate Body case-law and public international law literature.150  Brazil submits that 
the BTIs that were found by the Appellate B ody to be "circumstances of conclusion" in  EC – 
Computer Equipment   could not have been evident to all the negotiators.   
(b) Characterization of Relevant Law of the European Communities 
75. Brazil submits that the Appellate Body should not, as requested by the European 
Communities, disregard the customs legislation enact ed by the European Co mmunities at the time of 
the conclusion of the Uruguay Round on the grounds  that there was no trade in frozen salted chicken 
cuts at that time.  Brazil contends that legislation defining the products at issue for the purpose of the 
European Communities' Combined Nomenclatu re is a relevant "circumstance".   
76. In Brazil's view, the Panel correctly interpreted the  Dinter   and  Gausepohl   judgments of the 
ECJ.151  Brazil argues that the  Dinter   judgment did not deal specifically with the scope of 
heading 02.10 and provides only general comments regarding Chapter 2 of the Combined Nomenclature, without any direct relevance to this c ase.  Brazil also submits that the Panel adequately 
dealt with the  Gausepohl   judgment.   In Brazil's view, the ECJ found no support in the Harmonized 
System for the conclusion that "salting", unde r heading 02.10, is a process for preserving meat.
152  In 
contrast, EC Regulation 535/94 introduced an object ive criterion (deep salt impregnation of 1.2 per 
cent) for salted meat, and did not refer to "long-term preservation".  As to the European Communities' 
argument that EC Regulation 535/94 cannot change the ECJ's interpretation of a Harmonized System 
definition, Brazil submits that the ECJ does not have  the authority to determine the meaning of the 
Harmonized System.153  Even if the European  Commission took the ECJ's Gausepohl   judgment into 
                                                      
149Brazil's appellee's submission, para. 223. 
150Ibid., paras. 224-227 (referring to European Commun ities' appellant's submission, para. 252;  
Appellate Body Report, US – Gambling , footnote 244 to para. 196;  Appellate Body Report, EC – Computer 
Equipment , paras. 92 and 94;  and Panel Report, Mexico – Telecoms , para. 7.68). 
151European Court of Justice, Judgment, Dinter v Hauptzollamt Köln-Deutz , Case C-175/82, ECR 
[1983] 969;  ECJ Judgment Gausepohl , supra , footnote 106. 
152Brazil's appellee's submission, para. 250. 
153Ibid., para. 257.  WT/DS269/AB/R 
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account in EC Regulation 535/94, that judgment suggest s that deep impregnation with 1.2 per cent of 
salt meets the ECJ's understanding of "long-term preservation".154 
77. Brazil disagrees with the European  Communities that EC Regulation 535/94 is not relevant as 
"circumstance" of conclusion because the negotiatio ns on the EC Schedule we re concluded prior to 
the period of verification of the Schedules.155  According to Brazil, the European Communities 
acknowledges that not all negotiators need to have  actual   knowledge of an act.  Brazil submits that 
acceptance of the definition of "salted meat" in  EC Regulation 535/94 during the process of 
verification of the Schedules can be deduced from the lack of objections.156 
78. Finally, Brazil disagrees with the European Co mmunities that the Panel used Article 32 to 
alter its conclusion concerning the meaning of the te rm "salted" that it had arrived at in applying 
Article 31.  According to Brazil, the Panel conc luded under Article 31 that the term "salted" in 
heading 02.10 is a broad term that is not  limited   to the notion of "long-term preservation";  under 
Article 32, the Panel confirmed that EC Regulation 535/94 did not provide that salting must be for 
"long-term preservation". 
C. Arguments of Thailand – Appellee 
1. Interpretation of the EC Schedule in the Light of Article 31 of the Vienna 
Convention  
(a) Ordinary Meaning 
79. Thailand submits that the Panel properly examined  the factual context for the consideration of 
the ordinary meaning of the term "salted".  Thaila nd refers to the principle under Article 31(1) of the 
Vienna Convention that "a treaty shall be interpreted in good faith", and claims that, under "factual 
context", the Panel took into account consequences that " normally " and " reasonably " flow from the 
text.157  In Thailand's view, if the Panel's analysis of the "ordinary meaning" had eschewed "factual 
context" and instead had included only dictionary  definitions, the result would have been too 
                                                      
154Brazil's appellee's submission, para. 258. 
155Ibid., paras. 263-276 (referring to European Comm unities' appellant's submission, paras. 301). 
156Ibid., para. 276. 
157Thailand's appellee's submission, paras. 13-14 (quoting Sinclair, supra , footnote 36, p. 121). 
(emphasis added by Thailand) WT/DS269/AB/R 
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restrictive and also inconsistent with prior Appella te Body rejections of a mechanical reliance on 
dictionaries.
158  
80. Thailand also challenges the European Communitie s' claim that the Panel failed to make an 
objective assessment of the facts in accordance with Article 11 of the DSU.  Thailand argues that an appellant faces a high hurdle to establish that a panel has committed an "egregious error" in the 
appreciation of evidence, particularly  with respect to scientific evidence.
159  Contrary to the allegation 
of the European Communities, the Panel's conclusi ons with respect to the ordinary meaning of 
"salted" were not  based on   the Panel's appreciation of the Eur opean Communities' expert's opinions.  
Thailand further submits that the European Commun ities has not established that the Panel failed to 
make an objective assessment of the scientific eviden ce.  With respect to the Panel's finding that a 
3 per cent salt content may prevent spoilage in me at, Thailand argues that the Panel did not make 
reference to a product with a 3 per cent salt conten t that is not chilled;  rather, the Panel was 
discussing a meat product that was "raw and chilled". 
81. With respect to the European  Communities' claim that it is the slicing of the preserved 
product, and not the salt content, as the Panel found,  that makes necessary the use of additional means 
of preservation under heading 02.10, Thailand submits that the basis for this claim of error is 
"unclear".160  This is because, before the Panel, the European Communities did not contest the fact 
that meats such as Parma ham, prosciutto, and jamó n serrano require further means of preservation.  
Thailand further argues that, in making the finding that "a product preserved by salt for relatively 
short periods of time is not necessarily precluded from qualifying under heading 02.10", the Panel did 
not rely on evidence by the European Communities'  expert alone, but also relied on the European 
Communities' statements acknowledging this fact.161  Finally, Thailand submits that, even if the 
Appellate Body were to find that the Panel di d not conduct an objective assessment of the facts 
contested by the European Communities, this woul d not affect the overall conclusions of the Panel 
with respect to the ordinary meaning of the term "salted". 
                                                      
158Thailand's appellee's submission, paras. 16-17 (referring to Appellate Body Report, US – Gambling , 
para. 166;  and Appellate Body Report, US – Offset Act (Byrd Amendment) , para. 248). 
159Ibid., paras. 21-23 (referring to Appellate Body Report, US – Steel Safeguards , para. 499;  and 
Appellate Body Report, EC – Hormones, paras. 133 and 138). 
160Ibid., para. 27.  
161Ibid., para. 28 (quoting Panel Reports, para. 7.149).  WT/DS269/AB/R 
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(b) Context 
82. Thailand argues that the European  Communities has failed to establish that the term "in brine" 
refers exclusively to preservation.  The European  Communities' argument that the term "in brine" 
refers to preservation is based solely on its defin ition of the verb "to salt", and, as such, the argument 
does not concern the ordinary meaning of the te rm "in brine".  Moreover, in Thailand's view, 
heading 08.12, which refers to brine as a "preserva tive solution", makes it clear that all the processes 
listed in that heading are "for the purpose of provisionally preserving the products".162 
83. Thailand also submits that the Panel did not fail to take into account the distinguishing 
characteristics of the terms "salted, in brine, drie d or smoked" in heading 02.10.  The dictionary 
definitions of these terms include, but are not limite d to, the concept of preservation.  The ordinary 
meaning of these terms for meat products, in "today 's context", is related to the taste and unique 
characteristics of the products, rather than the le ngth of time for which the products are preserved.163  
Thailand also rejects the argument that the special na ture of the meats subject  to heading 02.10 finds 
support in the nature of the meats covered by Chap ter 16;  rather, the Chapter Note to Chapter 16 
makes it clear that the processes specified in Chapter 2 are for preparation or preservation.164 
84. Thailand agrees with the European Communitie s that, for heading 02.10, the issue of 
refrigeration is of little or no importance, but subm its that this is because preservation is not a 
determinative element for the classification of pr oducts under this heading.  Instead, according to 
Thailand, the structure of the headings indicates th at products may be divided into either fresh or 
preserved by a process (chilled or frozen) or prepared  (salted, in brine, etc);  the determinative 
element of heading 02.10, in Thailand's view, is prep aration.  Heading 02.10 covers all types of meat 
and offal, as long as that meat and offal is salted, in brine, dried, or smoked.  All such meat is 
classified under heading 02.10, regardless of the stat e in which it is presen ted—for instance, fresh, 
chilled, or frozen.  Thailand also rejects the Eu ropean Communities' argument based on the words 
"temporary preservative" in the Explanatory Note to Chapter 2;  according to Thailand, the European 
Communities provides no evidence to support its assertion that packing fresh meat with salt inevitably 
affects the product's characteristics. 
                                                      
162Thailand's appellee's submission, para. 36. 
163Ibid., para. 39. 
164Ibid., para. 41.  WT/DS269/AB/R 
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(c) Subsequent Practice 
85. Thailand submits that the Panel properly cons idered the classification practice of the 
European Communities from 1996 to 2002 as "subsequent practice" within the meaning of Article 31(3)(b) of the  Vienna Convention.   
(i) "Common" and "Concordant" Practice 
86. Thailand considers that the position of the European Communities w ith respect to the 
"common" and "concordant" nature of subsequent practice contradicts the approach of the Appellate 
Body in  EC – Computer Equipment   and in  EC – Export Subsidies on Sugar , where the Appellate 
Body attached importance to the practice of the European Communities when interpreting the 
EC Schedule.
165  According to Thailand, in any event, th e weight given to subsequent practice by the 
Panel was not dispositive for its findings that the pr oducts at issue were covered by the concession in 
heading 02.10. 
87. Thailand submits that the Panel's findings are not inconsistent with the commentary of the 
ILC regarding subsequent practice.166  According to the ILC, it is not necessary for  all  signatories to 
a treaty to have  engaged   in a particular practice for it to qualify as subsequent practice;  rather it is 
sufficient that the parties have  accepted   the practice.  Therefore, Thailand submits that the practice 
of even one Member may qualify as "subsequent prac tice".  On this basis, it was reasonable for the 
Panel to conclude that the classification practice of  the European Communities alone with respect to 
the products at issue could be considered as subseque nt practice.  In addition, Thailand states that in 
public international law, acceptance may be deduced fr om a party's reaction or lack of reaction to the 
practice at issue.167 
88. Thailand rejects the European Communities' argu ment that "subsequent practice" within the 
meaning of Article 31(3)(b) requires "overt acts" that  are explicitly "adopted" by a "large majority" of 
the WTO Membership.168  In Thailand's view, the European Communities misunderstands the 
distinction that  the  Vienna Convention   draws between a "subsequent agreement" in Article 31(3)(a) 
                                                      
165Thailand's appellee's submission, paras. 60-62 (referring to Appellate Body Report, EC – Computer 
Equipment , para 93;  and Appellate Body Report, EC – Export Subsidies on Sugar , para. 187). 
166Ibid., paras. 65-70 (referring to European Comm unities' appellant's submission, para. 117). 
167Ibid., para. 69 (referring to Yasseen, supra , footnote 70, p. 49, para. 18;  and A. Aust, Modern Treaty 
Law and Practice (Cambridge University Press, 2000), pp. 191-193). 
168Ibid., para. 71 (referring to the European Communities'  argument that such acts are "interpretations 
under Article IX:2 of the WTO Agreement , Decisions by the [Harmonized System] Committee or Council 
relating to the interpretation of the [Harmonized System ] nomenclature, or acts that result from an equally 
rigorous procedure". (European Communities' appellant's submission, para. 144))  WT/DS269/AB/R 
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and "subsequent practice" in Article 31(3)(b).  Th ailand also refers to instances where the Appellate 
Body and panels found that certain acts and practic es did not amount to "subsequent practice" within 
the meaning of Article 31(3)(b), and submits that  those cases may be distinguished from the present 
case on their facts.169 
89. Thailand agrees with the Panel that it makes "pra ctical sense especially in the context of 
GATT schedules that are particular to each WTO Member" to attach "importance [to] the classification practice of the importing Member whose schedule is being interpreted".
170  According to 
Thailand, the Appellate Body Report in EC – Computer Equipment   supports the view that a 
Member's Schedule is not the same as a generally applicable treaty provision of the GATT 1994 or 
other WTO agreements.171  In this regard, Thailand notes the Panel's factual finding that "the 
European Communities is apparently the only importing WTO Member with any practice of 
classifying the products at issue."172  Thailand also challenges the European Communities' reliance on 
the Harmonized System, and submits that there is no  legal basis to equate the interpretation of the 
EC Schedule with an interpretation of the Harm onized System.  The Panel's analysis of the 
EC Schedule does not purport to provide a definitiv e interpretation of the Harmonized System, nor 
does it undermine the interpretative role to be played by the Harmonized System Committee and 
Council.173 
(ii) "Consistency" of Practice 
90. Thailand argues that the Panel correctly applied the concept of "consistency" in finding that 
the European Communities' classi fication practice amounted to "subsequent practice" within the 
meaning of Article 31(3)(b).  Thailand asserts th at the present case can be distinguished from  
EC – Computer Equipment on the basis that the classification practice of the European Communities 
in the present case was consistent over a period of si x years;  this is different from the "clearly 
inconsistent classification practice among EC Member States" in the earlier case.174  Thailand further 
recalls the observation of the Panel that th e European Communities presented no evidence 
                                                      
169Thailand's appellee's submission, paras. 72-74 (referring to Appellate Body Report, Japan – 
Alcoholic Beverages II , pp. 13-14, DSR 1996:I, 97, at 106-107;  Appellate Body Report, US – Gambling , 
para. 193;  Panel Report, US – FSC , para. 7.75;  and Panel Report, Canada – Patent Term , footnote 48 to 
para. 6.89). 
170Panel Reports, paras. 7.253-7.254;  Thailand's appe llee's submission, para. 76 (referring to European 
Communities' appellant's submission, para. 129). 
171Thailand's appellee's submission, para. 76 (referring to European Communities' appellant's 
submission, para. 131;  and Appellate Body Report, EC – Computer Equipment , para. 109). 
172Ibid., para. 84 (quoting Panel Reports, para. 7.289). 
173Ibid., para. 90. 
174Ibid., para. 95 (referring to Appellate Body Report, EC – Computer Equipment , para. 95). WT/DS269/AB/R 
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demonstrating that the products at issue had been classified under heading 02.07 of the EC Schedule.  
According to Thailand, the Panel was not required to examine classi fication practice with respect to 
all kinds of salted meat subject to heading 02.10;  only salted chicken cuts are relevant, but, in any 
event, the Panel analyzed a broader range of products falling under heading 02.10.  
91. Thailand submits that the Panel did not "delib erate[ly] exclu[de]", as suggested by the 
European Communities, the export classification practice of Thailand and Brazil.
175  Indeed, the Panel 
did consider the classification practice of Brazil, Thai land, the United States, and China in its analysis, 
and made the factual conclusion that the evidence on their practices was too limited.  Thailand asserts 
that the European Communities, in this respect, asks the Appellate Body to go beyond an examination 
of   legal   questions.  In addition, as Thailand does not  have a tariff concession on frozen boneless 
chicken cuts for export, and does not impose e xport duties on this product, the Panel properly 
concluded that Thailand's export classification practice was not relevant for interpreting 
heading 02.10.176 
92. In Thailand's view, the Panel did not fail to examine the "totality" of the relevant law and 
practice of the European Communities.177  Therefore, the Panel's consideration of relevant material 
from the European Communities' legi slative system, including an Expl anatory Note to the Combined 
Nomenclature of December 1994 and a BTI relating to salted ham from Spain, cannot be disturbed.178  
According to Thailand, the Panel explicitly considered the  Dinter   and  Gausepohl   judgments of the 
ECJ in its interpretative exercise under Article 32 of the Vienna Convention , rather than under 
Article 31(2)(b), as directed by the Appellate Body in  EC – Computer Equipment.179   
93. Thailand disagrees with the European Communities that practice of low-level customs 
officials cannot amount to "subsequent practice".  Th ailand refers to the Appellate Body Report in  
EC – Computer Equipment  as well as international law literature suggesting that there is no such 
limitation of the types of practice that may be relevant for purposes of Article 31(3)(b).180  What may 
                                                      
175Thailand's appellee's submission, para. 98 (referring to European Communities' appellant's 
submission, para. 151). 
176Ibid., para. 104. 
177Ibid., para. 160.  
178Ibid., para. 105 (referring to Panel Reports, paras. 7.302 and 7.270). 
179Ibid., para. 106. 
180Thailand also refers to I. Brownlie, Principles of Public International Law , 6th edn (2003), p. 6.   WT/DS269/AB/R 
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constitute subsequent practice depe nds on the type and nature of the treaty provision in question, 
which, in this case, is applied by customs officials.181 
94. According to Thailand, the European Commun ities' contention that the Panel failed to 
consider certain evidence in its interpre tative exercise is "factually incorrect".182  For Thailand, it is 
"unclear" whether the European Communities claims  that the Panel failed to make an objective 
assessment of the evidence before it;  if the Eu ropean Communities does make such a claim, the 
European Communities has not sufficiently substan tiated why the Panel acted inconsistently with 
Article 11 of the DSU.183 
(d) Object and Purpose 
95. Thailand submits that Article 31(1) does not refe r to the "object and purpose" of a particular 
provision (in this case, Article II of GATT 1994 read in conjunction with the specific tariff heading of 
the EC Schedule at issue) but, rather, to the object and purpose of the treaty.184  A treaty interpreter 
must determine the ordinary meaning of the term s of the treaty (that is, the concession in heading 
02.10) in the light of the object and purpose of the treaty (that is, the GATT 1994). 
96. Thailand disagrees with the European Commun ities that the Panel's interpretation of the 
object and purpose was based on a "bias" towards trade expansion.185  The Panel was "merely 
paraphrasing" the Appellate Body Report in EC – Computer Equipment when referring to the security 
and predictability of the reciprocal arrangements "d irected to the substantial reduction of tariffs and 
other barriers to trade".186 
97. Thailand agrees with the Panel that the criteri on of "long-term preservation" is "not ... 
predictable".187  For purposes of customs classification, the objective physical characteristics of the 
products are the "paramount consideration", rather than any purpose underlying those 
characteristics.188  In response to the European Communiti es' concern that the Panel took no account 
of the uncertainty of the alternative criterion of "preparation", Thailand subm its that the burden of 
                                                      
181Thailand's appellee's submission, para. 112. 
182Ibid., para. 107. 
183Ibid., para. 109 (referring to the standard for such a claim, as set out in Appellate Body Report,  
US – Steel Safeguards , paras. 498-499). 
184Ibid., para. 121 (referring to Appellate Body Report, EC – Computer Equipment , paras. 13 and 85). 
185Ibid., para. 126 (referring to the European Communities' appellant's submission, para. 189). 
186Ibid., para. 125 (quoting Panel Reports, para. 7.320). 
187Ibid., heading II.D.2. 
188Ibid., para. 129. WT/DS269/AB/R 
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proving that the term "salted" in heading 02.10 of the EC Schedule was intended to be limited to the 
notion of "preservation" rested on the European Co mmunities;  given that the European Communities 
did not meet this burden, it was not incumbent on the Panel to assess any "alternative" criteria.
189   
98. For Thailand, there is no legal basis for the s ubmission that heading 02.10 "did not have the 
overall object and purpose of securing mutually ad vantageous market access arrangements on frozen 
poultry".190 According to Thailand, this argument imp lies that the Panel should have taken into 
account the unilateral trade policy considerations of the European Communities' negotiators;  the 
European Communities may not use its tariff classifi cation to respond to changes in trade patterns.191 
2. Interpretation of the EC Schedule in the Light of Article 32 of the Vienna 
Convention  
99. Thailand submits that the Panel acted correctly  in seeking recourse to supplementary means 
of interpretation under Article 32 of the Vienna Convention in order to confirm  the interpretative 
result obtained through the application of Article 31.  Thailand submits that Article 32 provides a  
non-exhaustive list of available supplementary means of interpretation, and that the European 
Communities' classification practice, if found by the Appellate Body not to be "subsequent practice" 
within the meaning of Article 31(3)(b), should be considered under Article 32.   
(a) Circumstances of Conclusion 
100. Thailand does not agree with the European Communities that previous findings of the 
Appellate Body and public international law literature  suggest that the events, acts, and instruments to 
be taken into account as part of the circumstan ces of a treaty's conclusion "must have directly 
influenced the common intentions of parties".192  Thailand submits that th e Appellate Body has not 
suggested that the documents considered by a pa nel as "circumstances of conclusion" must have 
influenced parties in the drafting of the treaty text .  Regarding the European Communities' rejection of 
the Panel's concept of "construc tive knowledge", Thailand notes the A ppellate Body's statement in 
EC – Computer Equipment   that the panel, in that case, should have considered relevant BTIs as 
supplementary means of interpretation;  in Thailand's view, it is unlikely that all negotiating parties in 
the Uruguay Round were aware of these BTIs. 
                                                      
189Thailand's appellee's submission, para. 132.  
190Ibid., para. 134 (quoting European Communities' appellant's submission, para. 212). 
191Ibid., para. 139. 
192Ibid., para. 144 (referring to European Communities' appellant's submission, para. 229;  and quoting 
Appellate Body Report, EC – Computer Equipment , para. 86;  and Sinclair, supra , footnote 36, p. 141).  WT/DS269/AB/R 
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(b) Characterization of Relevant Law of the European Communities 
101. Thailand submits that the Panel appropriately considered relevant law and practice of the 
European Communities during the Uruguay Round ne gotiations, in accordance with the Appellate 
Body's guidance in EC – Computer Equipment .  Thailand disagrees with the European Communities 
that there was no relevant customs classificati on practice prior to the conclusion of the Uruguay 
Round, and points to the Dinter and Gausepohl   judgments of the ECJ.  Thailand argues that the 
criterion established for heading 02.10 by EC Regul ation 535/94 implemented and clarified the long-
term preservation criterion recognized in the ECJ's  Gausepohl   judgment.193   
102. Thailand further submits that Additional Note  7 to the Combined Nomenclature, enacted 
through EC Regulation 535/94, did not alter th e scope of heading 02.10 of the Combined 
Nomenclature;  rather, Additional Note 7 merely sp ecified the criteria to be taken into account for 
classifying certain goods under that heading.  Thailand also rejects the European Communities' argument that the establishment of criteria other than  long-term preservation for the term "salted" in 
heading 02.10 would alter the scope of that heading.   In Thailand's view, this argument is rebutted by 
the WCO's response to the Panel's questions, according to which the term "salted" in heading 02.10 is 
not limited to "preservation", and must be defined on the basis of the objective characteristics of the product. 
103. Thailand agrees with the Panel that the Explanat ory Notes to the Combined Nomenclature are 
not relevant because these Notes relate to swine me at and not to poultry m eat, and cannot be applied 
by analogy to poultry meat in the absence of an e xplicit reference.  Finally, Thailand asserts that the 
Panel properly declined to consider as relevant the practice of other Members, including a United 
States' customs ruling of 1993 relating to fresh or frozen beef sprinkled  with salt, and a United States' 
customs ruling of 1996 relating to frozen salted bacon.
194 
                                                      
193Thailand's appellee's submission, para. 161. 
194Ibid., paras. 172-176. WT/DS269/AB/R 
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III. Other Appeals by Brazil and Thailand 
A. Claims of Error by Brazil – Other Appellant 
1. Terms of Reference
 
(a) Measures within the Terms of Reference 
104. Brazil appeals the Panel's conclusion that EC Regulations 1871/2003 and 2344/2003 (the 
"subsequent measures") are outside th e Panel's terms of reference.  Brazil recalls that a panel request 
is required to identify the "specific measures at i ssue";  identification of specific measures "does not 
occur by mere reference to the label or number gi ven to a legal instrument", but, rather, "by the 
description of acts or omissions attributable to a WTO Member".195  The measures identified by Brazil 
in its panel request were "clearly identified as [measures] that changed the classification and tariff 
treatment of frozen salted chicken cuts".196  The violation alleged was the treatment less favourable 
than that provided for the product under heading 02.10 of the EC Schedule.  According to Brazil, the 
subsequent measures that the Panel found to be ou tside its terms of reference are "in essence the 
same" as the two measures found to be within the Panel's terms of reference;  these subsequent 
measures also produce the same violation identified in Brazil's panel request, namely, treatment less 
favourable than that provided for in the EC Schedule.197 
105. Brazil argues that the Panel should have examin ed its panel request as a whole.  Brazil's 
"depiction" in its panel request of the two explicitly  referenced measures "as measures that reclassify 
and change the tariff treatment of frozen salted chicken cuts is broad enough to include legal 
instruments subsequent to [these two measures] that  also reclassify and change the tariff treatment of 
frozen salted chicken cuts".198  Brazil acknowledges that the present case is "somewhat different" 
from the dispute in Chile – Price Band System , because "it does not technically deal with an  
amendment   to a measure"199;  however, Brazil submits that the general principles and the reasoning 
applied in that case should be app lied here as well.  The two subse quent measures "are equivalent to 
amendments" of the two measures explicitly mentioned in Brazil's panel request, in that they confirm 
and clarify the reclassification and tariff change brought about by the two earlier measures.  The two 
subsequent measures "also produce the same eff ect", namely, the violation of the European 
                                                      
195Brazil's other appellant's submission, para. 17.   
196Ibid., para. 21.   
197Ibid.  
198Ibid., para. 27.  
199Ibid., para. 28. (original emphasis)  WT/DS269/AB/R 
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Communities' obligations "under heading 02.10 of the EC Schedule".200  The reclassification and 
change in tariff treatment of frozen salted chicken cuts by the European Communities " remained 
essentially the same " after the enactment of the two subsequent measures.201   
106. Brazil also expresses the concern that a failure to include the subsequent measures in the 
Panel's terms of referen ce would not secure a prompt and positi ve solution to the dispute.  Brazil 
furthermore contends that, contrary to the Panel's reasoning, it should not have  had to draft its panel 
request with "broad, generic and/or inclusive language  so as to cover specific legal instruments that it 
reasonably did not expect or anticipate" at the time it filed its request.202  Such reasoning would "give 
rise to a surge of vaguely worded Panel requests", cont rary to Article 6.2 of the DSU that requires that 
measures be specifically identified.203  Moreover, the Panel did not pr ovide an explanation of how and 
why the due process objective would have been comp romised if the subsequent measures had been 
included in the Panel's terms of reference.  In Br azil's view, the measures specifically identified gave 
adequate notice of the scope and claim of violat ion asserted by Brazil in its panel request, and the 
European Communities was made aware of the cont ent and relevance of EC Regulation 1871/2003 to 
this dispute "many times throughout the Panel proceeding".204   
(b) Products within the Terms of Reference 
107. Brazil appeals from the Panel's conclusion th at the products at issue are "frozen  
boneless chicken cuts impregnated with salt, with  a salt content of 1.2 %-3%" and not "frozen 
boneless chicken cuts impregnated with salt, with a salt content of 1.2% or more".  According to 
Brazil, the Panel failed to represent correctly the products covered by EC  Regulation 1223/2002 and 
EC Decision 2003/97/EC, which led to the "flawe d understanding" that th e products under those 
instruments are determined by the salt content of  these products, and not by the notion of long-term 
preservation.205  Although the salt percentages provided for in those measures—1.2 to 1.9 per cent, 
and 1.9 to 3 per cent, respectively—appear to desc ribe the products affected by those measures, the 
"rationale" provided within each of those legal instruments for classification under heading 02.07 is 
that of long-term preservation.206  This is also apparent from EC Decision 2003/97/EC, according to 
which chicken cuts with a salt content of 1.9 to 3 per cent are similar to boneless chicken cuts with a 
                                                      
200Brazil's other appellant's submission, para. 27.  
201Ibid., para. 31. (emphasis added)   
202Ibid., para. 36.   
203Ibid., para. 37.   
204Ibid., para. 42.   
205Ibid., para. 45.    
206Ibid., para. 49.  WT/DS269/AB/R 
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salt content of 1.2 to 1.9 per cent.  According to Braz il, this suggests that it is not the salt content that 
defines the products under that measure. 
108. Brazil also argues that the products within the Panel's terms of reference are the products 
described in Brazil's panel request.  Brazil takes issu e with the Panel's statement that the products at 
issue are determined by the measures considered to be within the Panel' s terms of reference.  
Although Article 6.2 of the DSU does not explicitly requi re that the products at issue be identified in 
the panel request, the Appellate Body has, in the p ast, relied on the description contained in the panel 
request to determine the scope of th e measure at issue.  Moreover, if  the product at issue is in fact 
described in the panel request, then it is that pr oduct that constitutes the product within the panel's 
terms of reference, because, pursuant to Article 7 of the DSU, a panel's terms of reference are governed by the panel request.  Brazil also re fers to the Appellate Body's finding in  EC – Computer 
Equipment  that, "with respect to certain WTO obligations, in order to identify 'the specific measures 
at issue', it may also be necessary to identify th e products subject to the measures in dispute."
207  
Brazil contends that, for certain WTO obligations  such as tariff concessions, the identity of the 
product in the panel request "becomes vital" in th e fulfilment of the requirements under Article 6.2.208 
2. Interpretation of the EC Schedule in the Light of Article 31 of the Vienna 
Convention  
109. Brazil appeals the Panel's conclusion that th e evolution of Chapter 2 of the Harmonized 
System does not indicate definitely that the pred ecessor to heading 02.10 of the Harmonized System 
was characterized by the notion of "preparation".  According to Brazil, the terms of Items 13 and 18 
of the Geneva Draft Nomenclature, as well as the E xplanatory Notes to these Items, indicate that the 
processes within Item 18 exclude the concept of "preservation", because, within the structure of 
Chapter 2 of the Geneva Draft Nomenclature, preservation categories were deliberately placed as subdivisions within an Item.  
110. Next, Brazil appeals the Panel's finding that th e Explanatory Notes to heading 02.10 of the 
EC Schedule and to Chapter 2 of the Harmonized Sy stem are not helpful in determining the meaning 
of the tariff concession in heading 02.10.  Brazil takes issue in particular with the Panel's finding that 
the notions of "preparation" and "preservation" ma y not be mutually exclusive in the context of 
heading 02.10.  Contrary to the Panel's conclusion,  the Explanatory Note to heading 02.10 does not 
merely "suggest", but actually "asserts" that the proc esses referred to in heading 02.10 are preparation 
                                                     
 
207Brazil's other appellant's submission, para. 63 (quoting Appellate Body Report, EC – Computer 
Equipment , para. 67).   
208Ibid., para. 64.    WT/DS269/AB/R 
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processes.209  Brazil's also argues that the Panel gave " unjustified significance" to the overlap in the 
definitions of the terms "preparation" and "preservation".210  Brazil argues that "preparation" 
determines classification under heading 02.10, even if the processes of preparation may, in some cases 
and to some degree, also preserve meat.   
111. Brazil furthermore argues that the Panel committed a legal error by concluding that Rule 3 of 
the General Rules for the Interpretation of the Harmonized System ("General Rule 3") was not 
applicable to the case before it.  Brazil contends  that the Panel's reliance on, and acceptance of, the 
parties' alleged position that the products at issue di d not fall under two or more headings, such that 
the condition for applicability of General Rule 3 was not fulfilled, was "a grave legal error".211  The 
parties held "separate and distinct" unders tandings that led to different conclusions212;  this should 
have signalled to the Panel that  the products at issue were " prima facie  classifiable" under two 
headings.213  Moreover, the Panel assumed that the products at issue were not " prima facie 
classifiable" under two or more headings, despite the f act that it had not, after a textual and contextual 
analysis, decided whether the products at issue fell under heading 02.10.  Finally, the Panel "utterly 
ignored" Brazil's objection to its decision to not ap ply General Rule 3, expressed in Brazil's comments 
on the Panel's Interim Report.214   
112. Should the Appellate Body find that the Panel erred in not applying General Rule 3, Brazil 
requests that the Appellate Body complete the Pane l's legal analysis and find that General Rule 3 
leads to classification of the products at issue under heading 02.10.  Brazil argues that the factual 
findings of the Panel imply that, under General Ru le 3, the products at issue are different from 
unsalted products and that these differences ma ke the products at issue "more specific".215  The term 
"salted" in heading 02.10 describes the products at i ssue more specifically than the term "poultry" in 
heading 02.07.  This is because heading 02.10 does not cover "other" meat that has not been 
specifically provided for under other headings but, rather, all kinds of meat, "as long as that meat has been prepared by salting, drying or smoking".
216  Brazil also refers to the letter of the WCO to the 
Panel in support of its argument that "salting" is mo re specific than "freezing".  According to Brazil, 
                                                      
209Brazil's other appellant's submission, para. 80. (original emphasis omitted) 
210Ibid., para. 81.   
211Ibid., para. 93.  
212Ibid., para. 94.  
213Rule 3 of the General Rules for the Interpretation of the Harmonized System. 
214Brazil's other appellant's submission, para. 101.  
215Ibid., para. 104.  
216Ibid.  WT/DS269/AB/R 
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even if heading 02.10 were not "more specific" wi thin the meaning of General Rule 3(a), General 
Rule 3(c) would be applicable, leading to a classifi cation of the products at issue under heading 02.10.  
B. Claims of Error by Thailand – Other Appellant 
1. Terms of Reference
 
(a) Measures within the Terms of Reference 
113. Thailand submits that the Panel erred in its  conclusion that EC Regulations 1871/2003  
and 2344/2003 (the "subsequent measures") were outsi de the Panel's terms of reference.  Thailand's 
panel request was broad enough to include the two subsequent measures within the Panel's terms of 
reference, because the panel request referred to the "cl assification" of the product at issue, which is "a 
broader concept" than the two regul ations listed in the panel request. 217  Similar to the two measures 
explicitly included in the panel request, the subseque nt measures have the effect of classifying the 
product at issue under heading 02.07, rather than head ing 02.10, and, thereby, result in less favourable 
treatment for the product than that provided for in the EC Schedule.218  According to Thailand, had  
the Panel properly applied the standards applicable  under Article 6.2 of the DSU, it should have 
concluded that Thailand's panel request was "broad" enough to  cover the subsequent measures as 
well.219 
114. Thailand rejects the Panel's argument that Thailand's panel request  was not broad enough 
because it did not include the phrase "as am ended", as used in the dispute in  Chile – Price Band 
System220;  applying such a "mechanical test" of whether a panel request contains  generic or expansive 
language would provide WTO Members "with counter productive incentives to be vague in their panel 
requests".221  Thailand argues that EC Regulations 1871 /2003 and 2344/2003 have the same effect as 
the instruments specifically referred to in Thailand' s panel request.  Thailand refers to the Appellate 
Body's finding in  Chile – Price Band System , where the Appellate Body considered relevant that the 
regulatory changes at issue "did not  change the essence of the measure".222   
                                                      
217Thailand's other appellant's submission, para. 24.  
218Ibid., para. 26.   
219Ibid., para. 28.   
220Ibid., para. 29.   
221Ibid.   
222Ibid. (referring to Appellate Body Report, Chile – Price Band System , para. 136, in turn quoting 
Appellate Body Report, Brazil – Aircraft , para. 132).  Thailand also refers to the Appellate Body and panel 
findings in  Argentina – Footwear (EC)   and  Dominican Republic – Import and Sale of Cigarettes   in support of 
its argument. ( Ibid., paras. 30-38)   WT/DS269/AB/R 
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115. Thailand contends that the inclusion of the tw o subsequent European Communities' measures 
would not frustrate the due process objective of Article 6.2 of the DSU.  The European Communities 
was provided adequate notice of the nature of Th ailand's case and of the measures being challenged, 
such that the European Communiti es was not impaired in its ability to defend itself on the measures at 
issue.  The third parties were also aware of the na ture of Thailand's case, su ch that their interests 
equally were not prejudiced.  Moreover, Thaila nd argues that the Panel should have included 
EC Regulations 1871/2003 and 2344/2003 in its terms of reference to enable a prompt and positive 
solution to the present dispute because treating th e two measures as separate from the original 
measures could have a negative impact on the Eur opean Communities' implementation of the Panel's 
ruling.   
(b) Products within the Terms of Reference 
116. Thailand submits that the Panel erred in finding  that the products at issue were limited to 
chicken cuts with a salt content of 1.2 to 3 per cent.   According to Thailand, the Panel erred in holding 
that Article 6.2 does not require a definition of the pr oducts within the terms of reference.  Pursuant to 
Article 7.1 of the DSU, a panel's terms of refere nce contain the requirement to "examine the matter 
referred to the DSB" by a complainant;  as a result,  in the past, the Appellate Body "has generally 
followed the description of the product contained in the [panel] request".223  Thailand contends that, to 
the extent the Panel believed that it was not required to consider all of the products referred to in the 
panel request, the Panel erred as a matter of law. 
117. Furthermore, in Thailand's view, the Panel erred in its definition of the products at issue.  
Thailand's panel request did not describe any upper-lim it for the salt content of the chicken cuts for 
which classification was at issue.  According to Thailand, the Panel's ruling leads to the "anomalous 
situation" where the Panel has found that chicke n cuts with a salt content of between 1.2 and 
3 per cent are to be classified as "salted" meat unde r heading 02.10, but has not found that chicken 
cuts with a salt content greater than 3 per cent must be similarly classified.224  According to Thailand, 
the Panel erroneously held that the scope of the m easures at issue defined the scope of the products at 
issue.  The Appellate Body's findings in  EC – Computer Equipment  suggest that the Panel should 
have looked first to the products at issue and then  used that definition to identify the measures at 
issue.   
                                                      
223Thailand's other appellant's submission, para. 56.  
224Ibid., para. 59.  WT/DS269/AB/R 
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2. Interpretation of the EC Schedule in the Light of Article 31 of the Vienna 
Convention  
118. Thailand submits that the Panel erred in in terpreting certain relevant aspects of the 
Harmonized System.  First, according to Thailand,  the Panel assumed that all Harmonized System 
Notes—Section Notes, Chapter Notes, Heading and Subheading Notes—referred to by the parties are 
Explanatory Notes and, therefore, are not part of the Harmonized System and are non-binding.  
Thailand considers that the Panel erred in its legal characterization of the Chapter Note to Chapter 16 
as an Explanatory Note and, therefore, in its conc lusion that the Chapter Note to Chapter 16 does not 
form part of the Harmonized System and is non-bind ing.  The Panel's conclusion is "clearly incorrect" 
and results in undermining the weight to be given to  the content of the Chapter Note to Chapter 16 for 
the interpretation of the term "salted" in heading 02.10.225 
119. Secondly, in Thailand's view, the Explanatory No tes to Chapter 2 and to heading 02.10, when 
read together with the Chapter Note to Chapter 16,  "clearly indicate" that preparation determines 
classification under heading 02.10.226  The Panel erred in not drawing a clear conclusion that these 
Notes confirm that the processes listed in heading 02. 10 refer to preparation.  Chapter 2 covers meat 
that is fresh, chilled, frozen, and salted, in brine, dried, or smoked, and, as such, is prepared or 
preserved.  Fresh meat is not prepared or preserved;  meat that is chilled or frozen is preserved.  This 
implies that meat that is salted, in brine, dried,  or smoked must be prepared.  Thailand disagrees with 
the Panel that the terms "preparation" and "preservation" are not "mutually exclusive"227 because this 
finding fails to give proper meaning to all the term s of the treaty and renders the term "prepared" in 
the Chapter Note to Chapter 16 "inutile".228  Even if there were a degree of overlap between the 
notions of "preparation" and "preservation", it would s till be correct to say that it is "preparation" that 
characterizes heading 02.10. 
120. Thirdly, Thailand argues that the Panel erred in its consideration of Gene ral Rule 3.  Thailand 
disagrees with the Panel's finding that the parties to the dispute "concur[red] that the condition for 
[the] application [of General Rule 3] has not been fulfilled".229  Thailand submits that the reason it did 
not consider that the products at issue could be  prima facie   classifiable under two headings was that 
it considered the products at issue to fall under heading 02.10 only;  the European Communities, in 
contrast, considered that the products fell under head ing 02.07 only.  According to Thailand, "[t]he 
                                                      
225Thailand's other appellant's submission, para. 71.  
226Ibid., heading III.C.2.  
227Ibid., para. 77 (referring to Panel Reports, para. 7.223). 
228Ibid., para. 81.  
229Ibid., para. 87 (referring to Panel Reports, para. 7.227).   WT/DS269/AB/R 
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fact that opposing parties put forward different views about the correct classification of the products at 
issue indicates that the product at issue was prima facie  classifiable under two headings".230  
Furthermore, the fact that the European Communitie s itself, at various periods, classified the products 
at issue under both heading 02.07 and heading 02.10,  and that the European Communities' Customs 
Code Committee also indicated that the products were classifiable under each of these two headings, 
should have indicated to the Panel that it had suffi cient grounds for resorting to the application of 
General Rule 3.  
C. Arguments of the European Communities – Appellee 
1. Terms of Reference  
(a) Measures within the Terms of Reference 
121. The European Communities request s that the Appellate Body reject Brazil's and Thailand's 
appeals regarding the Panel's te rms of reference.  The Europ ean Communities argues that the 
approach used by Brazil and Thailand, permitting the addition of measures on the condition that the 
general effect of those measures is similar to the one s identified in the panel requests, is "clearly at 
odds with the DSU and WTO jurisprudence", and w ould "lead to the Panel' s terms of reference 
waxing and waning throughout a dispute settlement proceeding".231  Terms of reference are limited to 
measures that existed at the time of the establishment of a panel, and Article 7.1 of the DSU assumes 
that the specific measures will have been identifie d in the panel request.  The exceptions to this 
principle include amendments of an identified me asure, under the conditions that the measure is 
"essentially the same" after the amendment and the te rms of reference are sufficiently broad to cover 
the issue.232  The reliance of Brazil and Thailand on Articles 3.4 and 3.7 of the DSU suggests that 
broad objectives of the DSU would override the specific rules of Article 6.2 of the DSU, an approach 
with which the European Communities disagrees.  In any event, the inclusion of all legal measures 
that are considered to have a similar effect is not indispensable to securing a positive solution to the 
dispute. 
                                                      
230Thailand's other appellant's submission, para. 87.  
231European Communities' appellee's submission, para. 14.  
232Ibid., para. 20 (referring to Appellate Body Report, Chile – Price Band System , para. 136, in turn 
quoting Appellate Body Report, Brazil – Aircraft , para. 132). WT/DS269/AB/R 
WT/DS286/AB/R Page 46 
 
 
122. In the European Communities' view, the "'essence ' test" refers to modifications of the same 
measure, rather than to measures that are different but have broadly the same effect as measures 
identified in the panel request.
233  Moreover, the European Commun ities argues that the subsequent 
measures are "different in nature" from the measures identified in the panel requests and are "not 'in 
essence the same'".234  The subsequent measures have a broade r scope than the measures identified in 
the panel requests, because the subsequent measures refer not only to chicken cuts, but to any kind of 
meat.  Furthermore, the measures identified in th e panel requests have not been amended by the 
subsequent measures and "remain valid".235  Finally, the measures differ in their legal implications; 
the two measures identified in the panel requests "sim ply designate the appropriate classification for a 
particular product"; in contrast, EC Regulati on 1871/2003 "reconfirms a basic criterion—long-term 
preservation—on which to interpret heading 02.10".236   
123. In addition, the European Communities argu es that, to extend the scope of a panel's 
jurisdiction, a set of "stringent conditions" must be fulfilled.237  It is not sufficient to establish that the 
due process rights of the defendant have not been prejudiced.  The European Communities points out 
that, due to the "dilatory way" in which Brazil a nd Thailand made their claim concerning the terms of 
reference, namely, at a time when the panel proceedi ngs were more than half completed, the European 
Communities' due process rights were not respected. 238  Also, third parties were denied their due 
process rights, because it was only after the last opportunity for third parties to express their views that Brazil and Thailand first made claims concerning the Panel's terms of reference. 
(b) Products within the Terms of Reference 
124. The European Communities contends that Braz il's and Thailand's a llegations of error 
concerning the products at issue are "closely intertwi ned" with their allegations of error concerning 
the measures at issue.
239  The European Communities also fails to see how the question of the 
products at issue affects, and is relevant for, the questions of legal interpre tation before the Panel and 
the Appellate Body, as a matter independent of the measures that were identified.  The European 
Communities agrees with the Panel that its terms of  reference are defined by the measures identified 
in the panel requests;  it is, however, "unclear" to the European Communities as to why the Panel 
                                                      
233European Communities' appellee's submission, para. 28.  
234Ibid., para. 36.  
235Ibid., para. 41.  
236Ibid., para. 42.  
237Ibid., para. 45.   
238Ibid.   
239Ibid., para. 52.    WT/DS269/AB/R 
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decided nevertheless to define the products at issue. 240  The Panel's statement that the products at 
issue "are the specific products affected by the findings and recommendations" made by the Panel in 
its Reports is erroneous, because the Panel incorrectly  interpreted heading 02.10 of the EC Schedule, 
which, in the European Communities' view, applies to all meats falling under Chapter 2.  As a result, 
the Panel's findings and recommendations "inevitably a ffect a far larger range of products" than those 
mentioned in the specific measures at issue.241 
125. The European Communities further submits that  the Appellate Body made its finding in  
EC – Computer Equipment —that it may be necessary to identify the product in order to identify the 
specific measures at issue—in a context where actions  of individual customs offices were challenged;  
thus, in that dispute, the identification of the pr oduct was "key to identifying the measures at issue".242  
According to the European Communiti es, the product at issue is not relevant "in and of itself" under 
Article 6.2;  rather, it may be relevant only to  help identify the "specific measures at issue". 243 
2. Interpretation of the EC Schedule in the Light of Articles 31 and 32 of the 
Vienna Convention  
126. The European Communities agrees with the Panel' s conclusions that the Explanatory Notes to 
the Harmonized System are not conclusive with resp ect to whether the notion of "preparation" or the 
notion of "preservation" characterizes heading 02.10.  The European Communities agrees with 
Thailand that the Panel did not "explicitly recogniz[e] " that the Chapter Note to Chapter 16 of the 
Harmonized System is binding, but argues that the Panel made no comment on the weight it attached 
to the various Notes.244  As a result, it is not obvious how attaching more weight to the Note could 
have led the Panel to a different conclusion.   
127. The European Communities also cautions that the Notes to the Harmonized System should be 
used "only to attempt to elucidate the text whic h is being interpreted [and not be] treated as though 
they are the terms of the treaty being interpreted".245  Furthermore, the European Communities 
submits that there are several meats falling under Chapte r 2 other than those that are "salted, in brine, 
dried or smoked" to which the word "prepared" ca n be applied.  An analysis of the Harmonized 
                                                      
240European Communities' appellee's submission, para. 54.   
241Ibid.  
242Ibid., para. 61.   
243Ibid.   
244Ibid., para. 72.   
245Ibid., para. 76.  WT/DS269/AB/R 
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System reveals "numerous examples" of the word "p reparation" being used as a broad term in relation 
to various food products.
 246 
128. With respect to General Rule 3, the Europ ean Communities contends that the processes of 
interpretation set out in Articles 31 and 32 of the  Vienna Convention   lead to the conclusion that the 
term "salted" in heading 02.10 does not cover produc ts that have not been salted for preservation.  
Nevertheless, even if this were not the case, it is "f ar from clear" that the General Rules can be applied 
to interpret the scope of the term "salted".247  The European Communities rejects the argument that 
products are  prima facie   classifiable under two or more headings whenever there is a dispute about 
classification;  it also contests that it considered the products at issue to be classifiable under two 
headings.  Whether the condition for the application of General Rule 3 is fu lfilled cannot depend on 
the views of one party, but must be assessed objectively. 
129. In the European Communities' view, application of  General Rule 3(a) leads to a resolution of 
the matter.  Heading 02.07 contains the "most sp ecific description" because it refers to "poultry", 
which is more specific than the term "meat" in h eading 02.10.  The European Communities disagrees 
with the alternative argument, presented in the letter of the WCO Secretariat to the Panel, that it may 
be the processing (that is, freezing and salting) that determines the classification in the present case.  
According to the European Communities, there is no reason why "salting" should be regarded as more 
specific than "freezing".248  The only "clear indication" that can be deduced from General Rule 3(a) is 
that "poultry" is more specific than "meat".249  Consequently, it is unnecessary to apply General 
Rule 3(c).  In any case, General Rule 3(c) rai ses an "important issue of principle", because the 
European Communities questions whether a finding th at a product falls under two or more headings 
"can be made after a correct app lication of the Vienna Convention".250  Should either the Panel or the 
Appellate Body make such a finding of "non  liquet ", this would imply that Brazil and Thailand have 
failed to make their case, such that a finding agai nst them would have to be made.  The European 
Communities adds that General Rule 3(c) should be seen as "a rule intended for classification of 
particular consignments", rather than for the in terpretation of a tariff concession as required in the 
present dispute.251 
                                                      
246European Communities' appellee's submission, para. 84.   
247Ibid., para. 90.  
248Ibid., para. 99. 
249Ibid., para. 100.  
250Ibid., para. 93.  
251Ibid.   WT/DS269/AB/R 
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130. With respect to the Geneva Draft Nomencla ture of 1937, the European Communities argues 
that this document may be relevant to the in terpretation of the Harmonized System only as 
"supplementary means" under Article 32 of the Vienna Convention , and not as "context" under 
Article 31.  The European Communities also agrees w ith the Panel's finding that "the evolution of the 
terms and structure of Chapter 2 of the [Harmonized  System] does not definitively indicate whether or 
not the predecessor to heading 02.10 of the [Harmoni zed System] was characterized by the notion of 
'preparation' and/or 'preservation'".252  According to the European  Communities, the distinction 
between fresh/chilled meat and frozen meat under th at Draft Nomenclature was made at the low 
"tertiary level"253 and was introduced only by those countries that wished to apply this distinction, 
while other countries chose not to do so.254  The "real lesson" from the Geneva Draft Nomenclature is 
that "meats that have been subjected to traditiona l preserving methods should be brought together and 
given common treatment".255  In the transition from the Brussels Nomenclature to the Harmonized 
System, these products were "kept together", wh ile "cooked and otherwise prepared" meats were 
taken out of this category and placed elsewhere.256 
IV. Arguments of the Third Participants 
A. China 
131. China disagrees with the argument of the Europ ean Communities that "the provision at issue, 
the object and purpose of which must be ascertained, is Article II of the GATT 1994 read in conjunction with the specific concession at issu e, here, heading 02.10 of the EC Schedule."
257  China 
notes that Article 31(1) of the Vienna Convention requires interpretation of a treaty "in the light of  its  
object and purpose"258;  this implies determining the object and purpose of the treaty  as a whole  
rather than its individual provisions.   
                                                      
252Panel Reports, para. 7.205. 
253The European Communities argues that the Geneva Draft Nomenclature divided products at three 
levels, the lowest of which was called the "tertiary level". (European Communities' appellee's submission, 
para. 108) 
254Ibid., para. 108.   
255Ibid., para. 114. 
256Ibid. 
257China's third participant's submission, para. 5 (quoting European Communities' appellant's 
submission, para. 182). 
258Ibid., para. 6. (emphasis added by China)  WT/DS269/AB/R 
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132. China accepts that an interpretation of head ing 02.10 of the EC Schedule would include 
considering the meaning of the relevant terms in th e light of their object and purpose.  According to 
China, the concessions contained in the EC Schedule are treaty terms of the WTO Agreement  and the 
GATT 1994, and these treaties are the relevant sources for ascertaining the object and purpose.  China 
agrees with the Panel that the relevant object and purpose is the security and predictability of the 
reciprocal and mutually advantageous arrangements manifested in the form of concessions.
259 
133. Moreover, China supports the Panel's finding th at the inclusion of a "long-term preservation" 
criterion in the interpretation of the term "salted", in the concession contained in heading 02.10 of the 
EC Schedule, could undermine the object and purpo se of the security and predictability of the 
WTO Agreement  and the GATT 1994.260  China disagrees with the Eu ropean Communities' argument 
that "preservation" is a predictable criterion an d considers it inconsistent with the European 
Communities' acknowledgment that EC Regulation 1223/2002 and EC Deci sion 2003/97/EC do not 
apply a criterion of "long-term preservation".261  In this regard, China notes that the European 
Communities stated that if a produc t has been "frozen" within the me aning of heading 02.07, it will 
still be classifiable under heading 02.10 of the EC Schedule as a "salted" product, provided that the 
salting is for "long-term preservation" within the meaning of these measures.262  In addition, China 
considers that the European Comm unities' reliance on the use of term s such as "long-term use" and 
"provisionally preserved" in other parts of the Harm onized System is misplaced, and that such terms 
do not assist in the interpretation of heading 02.10 in the light of the object and purpose of the  WTO 
Agreement   and the GATT 1994.263 
134. China agrees with the Panel that a customs officer would have practical difficulties in 
applying the criterion of "long-term preservation".264  There is no clear definition of "long-term 
preservation" and no specific guidelines for customs offi cers.  China illustrates the uncertainty of the 
criterion with two examples.  First, products that have been salted for purposes other than long-term 
preservation, and frozen for long-term preservation, c ould be attributable to both salting and freezing, 
because a customs officer would have difficulties in ascertaining the purpose of these processes for a 
particular product.  Secondly, China posits that l ong-term preservation of certain products might only 
                                                      
259China's third participant's subm ission, para. 13 (referring to Panel Reports, para. 7.320). 
260Ibid., para. 27 (referring to Panel Reports, para. 7.323). 
261Ibid., para. 15 (referring to European Communities' appellant submission, para. 197). 
262Ibid., footnote 19 to para. 24 (referring to Panel Re ports, para. 7.322, in turn citing European 
Communities' responses to Questions 49 and 70 posed by the Panel;  and European Communities' statement at 
the second Panel meeting, paras. 9 and 14-15). 
263Ibid., paras. 18-19. 
264Panel Reports, para. 7.322.  WT/DS269/AB/R 
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be possible by a  combination  of both salting and freezing, which again would cause difficulties for a 
customs officer to classify the product.   
135. China supports the Panel's findings relating to  "circumstances of conclusion" within  
the meaning of Article 32 of the Vienna Convention .  China believes that the Panel did not 
mischaracterize the law of the European Communities in finding that EC Regulation 535/94 
superseded the criterion of long-term preservati on governing the scope of heading 02.10 as confirmed 
in the ECJ's   Gausepohl  judgment.265  According to China, the Eu ropean Communities' argument  
that EC Regulation 535/94 did not change the exis ting ECJ interpretation of the term "salted" in 
heading 02.10 is untenable because of the Eur opean Communities' subsequent inclusion of  
Additional Note 7 in the Combined Nomenclature and the European Communities' issuance of certain 
BTIs.266  Moreover, China submits that the temporal proximity of the publication and entry into force 
of EC  Regulation  535/94 to the conclusion of the Uruguay Round supports the view that 
EC Regulation 535/94, indeed, set forth the classifi cation criterion relevant for the EC Schedule and 
established the common intentions of the negotiating parties.267 
B. United States 
136. The United States submits that the description of the term "salted" meat in  
EC Regulation 535/94 is what the European Comm unities had accepted, before the conclusion  
of its Schedule in the Uruguay Round, as being th e ordinary meaning of the term according to 
Article 31(1) of the  Vienna Convention .268  This description—which was inserted into the Combined 
Nomenclature—provided that the term "salted" meat referred to meat "deeply and homogenously 
impregnated with salt in all parts, having a tota l salt content of not less than 1.2% by weight".269   
The United States points out that EC Regulation 535/94 was issued prior to the completion of the 
process of verification of the EC Schedule during the Uruguay Round.270  
137. Alternatively, the United States agrees with  the Panel's approach of considering 
EC Regulation 535/94 as part of the "circumstances of [the] conclusion" of the WTO Agreement   
in accordance with Article 32 of the Vienna Convention .271  The United States refers to the Appellate 
                                                      
265China's third participant' s submission, para. 28. 
266Ibid., para. 31. 
267Ibid., para. 35. 
268United States' third participant su bmission, paras. 1(a) and 5.  
269Ibid., para. 5.  
270Ibid., para. 6.  
271Ibid., para. 1(a). WT/DS269/AB/R 
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Body Report in EC – Computer Equipment , where the Appellate Body stated that a Member's 
classification practice and customs legislation at the time of tariff negotiations are relevant as 
"circumstances of [the] conclusion" of the WTO Agreement .
272  In this light, if the meaning of the term 
"salted" in heading 02.10 of the EC Schedul e is ambiguous or obscure, EC Regulation 535/94 
—issued during the Uruguay Round and relating to that term—should be used as a "circumstance" in interpreting its meaning.
273  
138. Furthermore, the United States contends that th e European Communities' reference to a single 
ruling by United States' customs authorities cannot amount to United States' "practice" on customs 
classification of the products at issue.274  The United States emphasizes th at the product at issue in the 
United States' customs ruling of November 1993 was fr esh and frozen meat to which 3 per cent of salt 
had been added "similar to fresh beef sprinkled a nd packed in salt", whereas the products at issue in 
this case are described as "deeply a nd evenly impregnated with salt".275  These descriptions 
demonstrate that the two products are not similar.  Therefore, the United States disagrees with the 
European Communities that these products are "identi cal in all material respects", and that the United 
States has a practice of classifying under heading 02.10 only products that are preserved by salt.276  
139. The United States agrees with the Panel that a pr ovision in a treaty must be interpreted in the 
light of the treaty's "object and purpose", not in the light of the "object and purpose" of that particular 
provision.277  The word "its" before "object and purpose" in Article 31(1) of the Vienna Convention   
refers to the singular "treaty"  rather than to the plural "terms" of the treaty.278  Furthermore, according 
to the United States, the Appellate Body reports  referred to by the European Communities do not 
support the European Communities' position.279  The United States asserts that the European 
Communities may have confused the meaning of th e term "object and purpos e" under Article 31(1) 
with the question of what is a particular treaty provision's purpose.280  The United States explains that 
any provision has a "purpose", but such "purpose" can be found only by determining the meaning of 
                                                      
272United States' third participant submission, para. 6 (quoting Appellate Body Report, EC – Computer 
Equipment , paras. 92 and 94). 
273Ibid., para. 6. 
274Ibid., para. 1(b). 
275Ibid., para. 9. 
276Ibid. 
277Ibid., para. 1(c). 
278Ibid., para. 12. 
279Ibid., para. 13 (referring to the European Communities' reliance on the Appellate Body Reports in 
Chile – Price Band System and (arguably) US – Line Pipe (not EC – Tube or Pipe Fittings ) in European 
Communities' appellant's submission, para. 180). 
280Ibid., para. 14.  WT/DS269/AB/R 
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the provision, which in turn is determined by in terpreting the provision based on the customary rules 
of interpretation found in Articles 31 and 32.281  The United States argues that identifying  a priori   
some "purpose" of a provision and then interpreting the text on the basis of that "purpose" would not 
be in accordance with customary in ternational law and would give pa rties to a dispute the possibility 
of ascertaining "purposes" that suit their particular policy objectives.282  
140. Finally, the United States agrees with the Eu ropean Communities description of the general 
analytical approach that a WTO panel should take  to municipal law.  WTO panels may need to 
determine the meaning of municipal law in order to  decide whether a Member is complying with its 
WTO obligations.283  In order to determine the meaning of a particular municipal law of a Member it 
is necessary to examine the status and meaning of  that measure within the municipal legal system 
itself.284  In  US – Carbon Steel , the Appellate Body explained that, to make an objective assessment 
of the meaning of a municipal law, it is important to look at "the cons istent application of such laws, 
the pronouncements of domestic cour ts on the meaning of such laws, the opinions of legal experts and 
the writings of recognized scholars."285  In this light, the United St ates submits that an objective 
assessment of the meaning of a measure requires a case-by-case analysis which looks at the rules of 
the municipal system in their totality and studies th e operation and actual status of the measure within 
such legal system.286 
V. Issues Raised in this Appeal 
141. The following issues are ra ised in this appeal: 
(a) regarding the terms of reference: 
(i) with respect to the specific measur es at issue in this dispute,  
whether the Panel erred in finding that Commission Regulation (EC)  
No. 1871/2003 ("EC Regulation 1871/2003") and Commission Regulation 
(EC) No. 2344/2003 ("EC Regulation 2344/2003") are outside the Panel's terms of reference;  
                                                     
 
281United States' third participant submission, para. 14. 
282Ibid. 
283Ibid., para. 17. 
284Ibid., para. 1(b). 
285Ibid., para. 18 (quoting Appellate Body Report, US – Carbon Steel , para. 157). 
286Ibid., paras. 17 and 19. WT/DS269/AB/R 
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(ii) with respect to the specific products at issue in this dispute, whether the Panel 
erred  in finding that the Panel' term s of reference were limited to frozen 
boneless chicken cuts impregnated with salt, with a salt content of 1.2 to 
3 per cent; 
(b) whether the Panel erred in finding that frozen boneless chicken cuts impregnated with 
salt, with a salt content of 1.2 to 3 per cent (the specific products at issue), are covered by the tariff commitment under head ing 02.10 of the European Communities' 
Schedule LXXX (the "EC Schedule"); 
(c) whether, in coming to the conclusion under (b), the Panel erred in interpreting the 
term "salted" in the tariff  commitment under heading 02.10 of the EC Schedule, and 
more specifically, in applying the rules of treaty interpretation codified in Articles 31 
and 32 of the Vienna Convention on the Law of Treaties  (the " Vienna Convention "), 
the Panel erred: 
(i) by taking into account what the Panel referred to as the "factual context for 
the consideration of the ordinary meaning" of the term "salted";   
(ii) in respect of context: 
- by finding that an examination of the terms contained in 
heading 02.10 of the EC Schedule other than "salted" does not clarify the ordinary meaning of the term "salted"; 
- by finding that the terms and structure of Chapter 2 
287 and their 
evolution, the Explanatory Note to heading 02.10 and that to 
Chapter 2, and the Note to Chapter 16 of the Harmonized Commodity Description and Coding System of the World Customs Organization ("WCO") (the "Harm onized System"), do not clarify 
the meaning of the term "salted" in heading 02.10 of the 
EC Schedule; 
- by characterizing the Note to Chapter 16 of the Harmonized System 
as an Explanatory Note that is not binding, rather than as a Chapter 
                                                     
 
287Chapter 2 of the Harmonized Commodity Description and Coding System is attached as Annex IV to 
this Report.  WT/DS269/AB/R 
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Note that forms part of the Harmonized System and is therefore 
binding;  and 
- by finding that General Rule 3 of the World Customs Organization's 
General Rules for the Interpretation of the Harmonized System (the "General Rules") is not applicable in this case because the products at 
issue are not prima facie classifiable under two or more headings of 
the Harmonized System
288; 
(iii) in respect of "object and purpose":   
- by finding that an interpretation of the term "salted" in heading 02.10 
of the EC Schedule, as including the criterion of preservation, could 
undermine the object and purpose of security and predictability in 
market access arrangement s, which underlie both the Marrakesh 
Agreement Establishing the World Trade Organization  (the " WTO 
Agreement ") and the General Agreement on Tariffs and Trade 1994  
(the "GATT 1994");   
(iv) in respect of "subsequent practice": 
- in its interpretation of the concept of "subsequent practice" within the 
meaning of Article 31(3)(b) of the Vienna Convention ;   
- by finding that the European Comm unities' practice of classifying the 
products at issue under heading 02.10 of the EC Schedule between 
1996 and 2002 amounts to "subsequent practice" within the meaning 
of Article 31(3)(b);  and 
- in its analysis of "consistency " of practice at the European 
Communities and multilateral levels;  and 
                                                      
288In the event that the Appellate Body reverses the Panel's decision not to apply General Rule 3, Brazil 
requests the Appellate Body to complete the legal analysis and to conclude that the application of General Rule 3 leads to the classification of the products at issue under heading 02.10 of the EC Schedule. (Brazil's 
Notice of Other Appeal (attached as Annex II  to this Report), penultimate paragraph) WT/DS269/AB/R 
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(v) in respect of "circumstances of the conclusion of a treaty": 
- in its interpretation of the concep t of "circumstances of conclusion" 
within the meaning of Article 32 of the Vienna Convention ; 
- by limiting the analysis of "circumstances" to the "prevailing 
situation in the European Communities" and failing to consider the prevailing situation internationally;   
- by developing and applying the no tion of "constructive knowledge";  
and 
- by misinterpreting relevant customs classification practice, 
legislation and jurisprudence of the European Communities;  and 
(d) whether the Panel complied with its obligations under Article 11 of the 
Understanding on Rules and Procedures Go verning the Settlement of Disputes  (the 
"DSU") in making its conclusions under Artic le 31 with respect to "factual context" 
and under Article 32 of the Vienna Convention  with respect to "circumstances of the 
conclusion of a treaty". 
VI. Introduction 
142. The present dispute concerns the question whet her certain European Communities' measures 
pertaining to the classification of imported frozen and salted chicken cuts result in treatment for those 
chicken cuts that is less favourable than that provide d for in the EC Schedule, in violation of Article II 
of the GATT 1994.  The EC Schedule contains two tariff commitments relevant to this dispute, 
namely, under heading 02.07, concerning "meat and ed ible offal, of the poultry of heading No. 0105, 
fresh, chilled or frozen"
289, and under heading 02.10, concerning "meat and edible meat offal, salted, 
in brine, dried or smoked".  In March 1994, the European Communities adopted Commission 
Regulation (EC) No. 535/94 ("EC Regulation 53 5/94").  This Commission Regulation amended 
Annex I of Commission Regulation (EEC) No. 2658/87, inserting an Additional Note to the European 
Communities' Combined Nomenclature.290  The effect of this Note was that the term "salted" "means 
meat or edible meat offal which has been deeply and homogenously impr egnated with salt in all parts, 
having a total salt content no less than 1.2% by weight ."  In 1983, the European Court of Justice (the 
                                                      
289The precise tariff commitment is contained in subheading 0207.41.10 of the EC Schedule. 
290This was Additional Note 8, later re-numbered as Additional Note 7.  WT/DS269/AB/R 
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"ECJ"), in the  Dinter   judgment291, had addressed the question whether turkey meat seasoned with 
salt and pepper was properly classified under Chapte r 2 or, instead, Chapter 16 of the European 
Communities' Combined Nomenclature .  In 1993, the ECJ, in the Gausepohl   judgment292, addressed 
the question under which circumstances salted bovine m eat would be considered "salted" within the 
meaning of heading 02.10 of the European  Communities' Combined Nomenclature.293   
143. Following EC Regulation 535/94, between 1996 a nd 2002, various customs offices of the 
European Communities classified the products at issue in this dispute—namely, "frozen boneless 
chicken cuts impregnated with salt, with a salt content of 1.2% – 3%"294—as "salted" meat under 
heading 02.10.  In 2002, by means of Commission Regulation (EC) No. 1223/2002 ("EC Regulation 1223/2002"), the Commission of the European Comm unities determined that frozen boneless chicken 
cuts with a salt content of 1.2 to 1.9 per cen t were to be classified as "frozen" meat under 
heading 02.07 and, thus, not under heading 02.10.  In 2003, by Commission Decision No. 2003/97/EC  
("EC Decision 2003/97/EC"), the Commission directed  the Federal Republic of Germany to withdraw 
certain Binding Tariff Information ("BTIs")
295, which classified frozen boneless chicken cuts with a 
salt content of 1.9 to 3 per cent as "salted" meat, by stating that the products covered by those BTIs 
were properly classified as "frozen" meat under h eading 02.07.  In October 2003, the European 
Communities enacted EC Regulation 1871/2003, acco rding to which the term "salted", under 
heading 02.10, "mean[s] meat and edible meat o ffal deeply and homogeneously impregnated with  
salt in all parts and having a total salt content of not less than 1.2% by weight, provided it is  
the salting which ensures long-term preservation ."296  This provision was also reflected in  
EC Regulation 2344/2003 with respect to the Eu ropean Communities' Combined Nomenclature.  
Thailand commenced exporting frozen salted chicke n to the European Communities in 1996, and 
                                                      
291Supra , footnote 151. 
292Supra , footnote 106. 
293The European Communities has also referred to two European Communities' Explanatory Notes as 
relevant pieces of European Communities' legislation.  In 1981, an Explanatory Note was inserted into the 
European Communities' Common Customs Tariff, according to which the term "salted", in relation to swine 
meat, referred to meat that had been "preserved, by deep dry salting or pickling in brine without any other 
supplementary treatment such as drying or smoking". (Exhibit EC-11 submitted by the European Communities 
to the Panel)  Another Explanatory Note, from 1983, referring to "dried or smoked" swine meat, stated that "[h]ams, shoulders and parts thereof which have been partially dehydrated, but the actual preservation of which 
is ensured by freezing or deep-freezing" fell within the tariff heading relating to "frozen 'hams, shoulders or cuts 
thereof, with bone in'".  (Exhibit EC-13 submitted by the European Communities to the Panel) 
294Panel Reports, para. 7.36.  
295We understand that a BTI provides advance binding information to the importer of how a given 
customs office will classify a particular product.  
296Article 1 of EC Regulation 1871/2003. (emphasis added)  EC Regulation 1871/2003 amended 
Additional Note 7 to the European Communities' Combined Nomenclature, which had been introduced by  EC Regulation 535/94. WT/DS269/AB/R 
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Brazil started doing so in 1998.
297  More details concerning the factual background to this dispute are 
provided in paragraphs 2.18- 2.41 of the Panel Reports. 
144. Before the Panel, Brazil and Thailand allege d that, through EC Regulation 1223/2002 and 
EC Decision 2003/97/EC, "the European Communities changed its customs classification so that those products, which had previously been classi fied under subheading 0210.90.20 and were subject 
to an ad valorem  tariff of 15.4%, are now classified under subheading 0207.41.10 and are subject to a 
tariff of 102.4€/100kg/net as well as being potentially subject to special safeguard measures pursuant 
to Article 5 of the Agreement on Agriculture."
298 
145. The ultimate question before us in this dispute is whether the measures at issue are consistent 
with the obligations of the European Communities under Article II:1(a) and Article II:1(b) of the 
GATT 1994.  More specifically, the question is whethe r the measures at issue result in treatment of 
the products at issue—namely, "frozen boneless ch icken cuts impregnated with salt, with a salt 
content of 1.2% – 3%"299—that is less favourable than that provided for under heading 02.10 of the 
EC Schedule, because these measures subject the products at issue to  duties that are in excess of those 
provided for in the EC Schedule and, potentially, to special safeguard measu res.  Resolving this 
question requires us to interpret heading 02.10 of the EC Schedule, which, like all the Schedules of 
the Members of the World Trade Organization ("WTO" ), is an integral part of the GATT 1994 as well 
as of the WTO Agreement , by virtue of Article II:7 of the GATT 1994.300 
146. It is not in dispute in this case that, if the products at issue are covered by the tariff 
commitment contained in heading 02.07 of the EC Schedule, and not by the one contained in 
heading 02.10 of the EC Schedule, the tariff treatme nt accorded to the products at issue, under the 
European Communities' measures ch allenged by Brazil and Thailand, would be less favourable than 
that provided for in the EC Schedule and that, accordi ngly, such treatment woul d be inconsistent with 
the European Communities' obligations under Articles II:1(a) and II:1(b) of the GATT 1994.301 
147. The critical issue in this dispute is the meani ng of the term "salted" in heading 02.10 of the 
EC Schedule.  Relying on the customary rules of in terpretation codified in Articles 31 and 32 of the 
Vienna Convention , the Panel first examined the ordinary m eaning of the term "salted", including its 
                                                      
297European Communities' appellant's submission, para. 47.  Brazil and Thailand have not contested 
this assertion.  
298Panel Reports, para. 7.3. 
299Ibid. para. 7.36.  
 300Appellate Body Report, EC – Computer Equipment , para. 84. 
301Panel Reports, para. 7.75.  WT/DS269/AB/R 
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"factual context".  Thereafter, the Panel undertook an interpretation of that term in the light of its 
context; relevant subsequent practice; "object and purpose" of the WTO Agreement  and the 
GATT 1994; and finally, the circumstances of the conclusion of the  WTO Agreement .  The Panel 
concluded, in essence, that the products at issue fe ll under heading 02.10 of the EC Schedule and that 
the European Communities had provided, through th e challenged measures, treatment less favourable 
than that provided for in the EC Schedule.  The European Communities challenges the Panel's 
interpretative approach and all of the Panel's conc lusions concerning the interpretation of the term 
"salted" in heading 02.10 of the EC Schedule.302  Brazil and Thailand each appeals certain aspects of 
the Panel's interpretation of that term, and, furt hermore, both appeal the Panel's findings concerning 
the measures and the products falling within the Panel's terms of reference. 
148. In our analysis, we first address Brazil's and Tha iland's claims concerning the Panel's terms of 
reference.  We next examine the Panel's interpreta tion of the term "salted" in heading 02.10 of the 
EC Schedule;  in so doing, first, we examine the European Communities' appeal concerning the 
Panel's finding on the ordinary meaning of the te rm "salted", including its "factual context".  
Secondly, we review the Panel's interpretation of th at term in its context, considering the arguments 
raised by the European Communities as well as by Br azil and Thailand.  Thirdly, we review the 
Panel's interpretation of the term "salted" in the light of the object and purpose of the WTO Agreement  
and the GATT 1994.  Finally, we address the Panel's analysis under Article 32 of the Vienna 
Convention  as to the "circumstances of [the] conclusion"  of the treaty.  Fourthly, we examine the 
Panel's findings concerning "subsequent practice".   
VII. Terms of Reference 
149. We begin with the appeals concerning the Panel's finding on the  measures  covered by its 
terms of reference. 
A. Measures Within the Terms of Reference 
150. There is no dispute in this case that the follo wing two measures are within the Panel's terms 
of reference:  EC Regulation 1223/2002 and EC Decision 2003/97/EC.303  The first measure, 
EC Regulation 1223/2002, provides that "boneless chicken cuts, frozen and impregnated with  
salt in all parts [with] a salt content by weight  of 1.2% to 1.9%" shall be classified under  
                                                      
302More specifically, whether this term in heading 02.10 implies that salting ensures, by itself, 
preservation or long-term preservation of meat. 
303EC Regulation 1223/2002, adopted on 8 July 2002, was published in the Official Journal of the 
European Communities  on 9 July 2002, and entered into force on the twentieth day following its publication.  
EC Decision 2003/97/EC was adopted on 31 January 2003, and was published on 12 February 2003. WT/DS269/AB/R 
WT/DS286/AB/R Page 60 
 
 
subheading 0207.41.10 of the European Commun ities' Combined Nomenclature.  The second 
measure, EC Decision 2003/97/EC, is a decision of the European Communities' Commission directed 
to the Federal Republic of Germany, requiring the w ithdrawal of 66 BTI notices issued by the German 
customs authority that classified frozen chicken cuts  with a salt content between 1.9 and 3 per cent as 
"salted" meat under heading 02.10 of  the EC Schedule.  For convenien ce, we will refer to these two 
measures within the Panel's terms of refe rence as the "two original measures".  
151. Before the Panel, Brazil and Thailand argued that two  subsequent  measures also fell within 
the Panel's terms of reference, name ly, EC Regulations 1871/2003 and 2344/2003.
304  We will refer to 
these two measures as the "two subsequent measure s".  The first of these measures, EC Regulation 
1871/2003, amends Additional Note 7 to Chapte r 2 of the European Communities' Combined 
Nomenclature—originally introduced into the Co mbined Nomenclature by EC Regulation 535/94—
by adding, at the end of the Note, the phrase "p rovided it is the salting which ensures long-term 
preservation".  As a result, the amended Additional Note 7 reads as follows:   
For the purposes of heading 0210, the term "...salted..." mean[s] meat 
and edible meat offal deeply and homogenously im pregnated with 
salt in all parts and having a total sal t content of not less than 1.2% 
by weight, provided it is the salting which ensures long-term 
preservation .305 (emphasis added) 
152. The second measure, EC Regulation 2344/2003, states, inter alia , that the amendment to 
Additional Note 7, inserted into the old Combined Nomenclature, is also inserted into the new 
Combined Nomenclature, adopted by Commission Regulation (EC) No. 1789/2003.306   
                                                      
304EC Regulation 1871/2003 was published on 23 October 2003 and entered into force on the twentieth 
day following its publication.  EC Regulation 2344/2003 was published on 30 December 2003 and entered into 
force on 1 January 2004.  Brazil's and Thailand's requests for the establishment of a panel were made on 
22 September 2003 and 28 October 2003, respectively. 
305According to the European Communities, the purpose of this Regulation was to: 
... confirm and clarify that the correct in terpretation of the term "salted" in 
heading 02.10 was salting in order to ensure the preservation of the product. 
This regulation was considered necessa ry to avoid customs officials or 
traders reading the additional note in isolation from the headings as 
consistently interpreted by the European Court of Justice and the 
Commission.  
(European Communities' first written su bmission to the Panel, para. 99) 
 306The European Communities explained that Commission Regulation (EC) No. 1789/2003 "reproduces 
the complete version of the Combined Nomenclature fo r the year 2004". (European Communities' response to 
Question 33 posed by the Panel, Panel Reports, pp. C-84-C-85)  This Regulation was adopted on 11 September 
2003 and entered into force on 1 January 2004.  EC Regulation 2344/2003—the second measure—makes certain changes to the complete version of the Combined Nomenclature for 2004 "in order to take account of 
changes to the Combined Nomenclature in force in 2003 which were made after 11 September 2003." ( Ibid.)    WT/DS269/AB/R 
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153. The Panel rejected the claims of Brazil a nd Thailand, finding that the two subsequent 
measures did not fall within its terms of referen ce.  The Panel relied on previous Appellate Body 
Reports dealing with amendments to measures identif ied in the panel request, indicating that, in order 
for a panel's terms of reference to include such amendments, the terms of reference "must be broad 
enough".307  The Panel stated that Brazil's and Thailand's respective panel requests were "much more 
narrowly drafted" than the "b roadly worded" panel requests at issue in previous cases 308, where the 
panels had found that measures not identified speci fically in the panel requests were nevertheless 
within their terms of reference.  As a result, th e Panel concluded that both Brazil's and Thailand's 
panel requests were "not broad enough to include"309 the subsequent measures.   
154. On appeal, Brazil and Thailand argue that the measures challenged are not merely the 
measures identified in their respective panel requests but, rather, those that change in classification 
and tariff treatment of frozen salted chicken cuts.  Thus, the violation alleged by Brazil and Thailand 
was that such change in classification and tariff tr eatment resulted in the products being accorded less 
favourable treatment than that provided under head ing 02.10 of the EC Schedule.  Relying on the 
Appellate Body Report in  Chile – Price Band System , Brazil and Thailand argue that the two 
subsequent measures are "in essence the same"310 as the two original measures and have the "same 
effect" as the two original measures in that they  result in the same violation as the two original 
measures.311   
155. The text of Article 6.2 of the DSU provides in relevant part: 
The request for the establishment of a panel shall be made in writing.  
It shall indicate whether consultati ons were held, identify the specific 
measures at issue and provide a brief summary of the legal basis of the complaint sufficient to present the problem clearly.  
                                                     
 
307Panel Reports, paras. 7.26-7.27.  The panel also referred to a second condition, namely, that 
inclusion of such amendments "is necessary to secure a positive resolution to the dispute" but did not rely on 
this condition. ( Ibid., para. 7.27) 
308Ibid., para. 7.28. 
309Ibid. 
310Brazil's other appellant's submission, paras. 21, 28, and 30-32;  Thailand's other appellant's 
submission, paras. 30-37.  
311Brazil's other appellant's submission, para. 34;  Th ailand's other appellant's submission, paras. 26 
and 28, and heading III.A.3(b). WT/DS269/AB/R 
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Article 6.2 of the DSU has two main requirements rele vant to this dispute, namely, the identification 
of the   specific measures at issue  and the provision of a  brief summary of the  legal basis of the 
complaint  (or the  claims ).
312  Together, they constitute the "mat ter referred to the DSB", which forms 
the basis for a panel's terms of reference under Article 7.1 of the DSU.313  The Appellate Body has 
observed previously that the need for precision in panel requests flows from the two essential 
purposes of the terms of reference, namely, to define the "scope of the dispute" and to serve the "due 
process objective of notifying the parties and third pa rties of the nature of a complainant's case."314  In 
our view, the clear identification of the specific measur es at the outset is central to define the scope of 
the dispute to be addressed by a panel.   
156. The term "specific measures at issue" in Ar ticle 6.2 suggests that, as a general rule, the 
measures included in a panel's terms of reference must be measures that are in existence at the time of 
the establishment of the panel.315  However, measures enacted subse quent to the establishment of the 
panel may, in certain limited circumstances, fall with in a panel's terms of reference.  Indeed, the 
Appellate Body addressed such a circumstance in Chile – Price Band System .316  Recognizing the 
requirement that a panel request must identify the "specific measures at issue" under Article 6.2, the 
Appellate Body examined in that case the rela tionship between the original measure and the 
subsequent amendment to that measure, and found that: 
                                                      
312The Appellate Body stated in Korea – Dairy  that: 
When parsed into its constituent parts, Article 6.2 may be seen to impose the 
following requirements. The request must:  (i) be in writing;  (ii) indicate whether consultations were held;  (iii)  identify the specific measures at 
issue;  and (iv) provide a brief summary of the legal basis of the complaint 
sufficient to present the problem clearly. 
(Appellate Body Report, Korea – Dairy , para. 120)  
313Appellate Body Report, Guatemala – Cement I , para. 72.  
314Appellate Body Report, US – Carbon Steel, para. 126 (quoting Appellate Body Report, Brazil – 
Desiccated Coconut , DSR 1997:I, 167, at 186 (emphasis omitted); and referring to Appellate Body Report,  
EC – Bananas III , para. 142).  
315These measures should also have been the subject of consultations prior to the establishment of the 
panel, although the Appellate Body has held that there is no need for a " precise and exact identity " between the 
measures addressed in consultations and the measures identified in the panel request. (Appellate Body Report, 
Brazil – Aircraft , para. 132) (original emphasis) 
316Appellate Body Report, Chile – Price Band System , paras. 126-144.  WT/DS269/AB/R 
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... Chile's price band system remains essentially the same after the enactment of Law 19.772.  The meas ure is not, in its essence, any 
different because of that Amendment.  Therefore, we conclude that the measure before us in this a ppeal includes Law 19.772, because 
that law amends Chile's price band system without changing its 
essence .
317 (original emphasis) 
157. Thus, the Appellate Body found that, where an or iginal measure had merely been amended by 
a subsequent measure and the amendment did not, in any way, change the essence of the original 
measure , the measure in its amended form  could constitute the "specific measure[] at issue" identified 
in the panel request. 318 
158. In our view, the case before us is characterized  by circumstances different from those in  
Chile – Price Band System .  The two subsequent measures in this  dispute make no explicit reference 
to the two original measures, which continue to remain in force.  Moreover, the two subsequent 
measures have legal implications different from those of the two original measures:  the first of the 
original measures—EC Regulation 1223/2002—specifies a certain classification for a particular product—namely, frozen boneless chicken cuts with a salt content of 1.2 to 1.9 per cent—and the 
second—EC Decision 2003/97/EC—requires the withdrawal of BTIs providing for a different classification of a product considered to be a si milar product—namely, frozen boneless chicken cuts 
with a salt content of 1.9 to 3 per cent.  In cont rast, the two subsequent measures amend the European 
Communities' Combined Nomenclature and cover all types of salted meat falling under heading 02.10 
of the Combined Nomenclature
319, whereas the two original measur es are limited to frozen boneless 
salted chicken cuts. 
                                                      
317Appellate Body Report, Chile – Price Band System , para. 139.  
In that dispute, the Appellate Body also quoted with approval the panel in  Argentina – Footwear (EC) .  
That panel had decided to examine modifications made to  the measure at issue during  the panel proceedings on 
the ground that the modifications in question did:   
… not constitute entirely new safeguard measures in the sense that they 
were based on a different safeguard investigation, but are instead 
modifications of the legal form of the original definitive measure, which 
remains in force in substance and which is the subject of the complaint. 
(Panel Report, Argentina – Footwear (EC) , para. 8.45)  
318In doing so, the Appellate Body observed that it "[did] not mean to condone a practice of amending 
measures during dispute settlement proceedings ... with a view to shielding a measure from scrutiny by a panel or by [the Appellate Body]."  At the same time, the Appellate Body made clear that it was not suggesting that 
this had occurred in that dispute. (Appellate Body Report, Chile – Price Band System , para. 144) 
319Moreover, one of two original measures is a "Decisi on" directed at one indi vidual Member State of 
the European Communities, namely the Federal Republic of Germany, whereas the two subsequent measures 
are "Regulations" that have a general application.  WT/DS269/AB/R 
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159. We are, therefore, not persuaded that the two subsequent measures in this case can be 
considered as amendments to the two original  measures—as were the measures at issue in Chile – 
Price Band System —or that the two sets of measures are, in essence, the same.
320   
160. Brazil and Thailand also argue that the two sub sequent measures fall within the Panel's terms 
of reference, because they have the "same effect" and bring about th e same result as the two original 
measures, namely the (re)classification of the pro ducts at issue.  Even assuming that Brazil and 
Thailand are correct that the two subsequent meas ures have the "same effect" as the two original 
measures insofar as frozen boneless chicken cuts ar e concerned, we fail to see a legal basis for 
applying such a test.  In our view, the notion of measures having the "same effect" is too vague and 
could undermine the requirement of specific ity and the due process objective enshrined in 
Article 6.2.321   
161. Brazil and Thailand also refer to Articles 3.4 a nd 3.7 of the DSU and argue that the principle 
of "satisfactory settlement of the matter" and of " secur[ing] a positive solution to the dispute" supports 
the inclusion of the two subsequent measures in the Panel's terms of reference in this case.  We agree 
that a positive and effective resolution of a dispute is one of the key objectives of the WTO dispute 
settlement system.322  However, this objective cannot be pursued  at the expense of complying with the 
specific requirements and obligations of Article 6.2.  Moreover, in this case, we believe that the non-
inclusion of the two subsequent measures in the Pa nel's terms of reference would not hinder a positive 
resolution of this dispute.   
162. For these reasons, we  uphold   the Panel's finding, in paragra ph 7.37 of the Panel Reports, that 
the Panel's terms of reference do not include EC Regulations 1871/2003 and 2344/2003.   
                                                      
320Nor do we consider that the two subsequent measures are "modifications of the legal form of the 
original definitive measure", as in the dispute in  Argentina – Footwear (EC) .  See supra , footnote 317. 
321Indeed, the Appellate Body has stated that: 
[t]o the extent that a Me mber's complaint centres on  the effects of an action 
taken by another Member, that complaint must nevertheless be brought as a challenge to the measure  that is the source of the alleged effects.  
(Appellate Body Report, US – Gambling , para. 123) (original emphasis) 
322Article 3.4 of the DSU stipulates that "[r]ecommendations or rulings made by the DSB shall be 
aimed at achieving a satisfactory settlement of the matter".  Article 3.7 of the DSU provides that "[t]he aim of 
the dispute settlement mechanism is to secure a positive solution to a dispute."    WT/DS269/AB/R 
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B. Products Within the Terms of Reference 
163. As regards the question of the specific products  within its terms of reference, the Panel 
concluded that the measures within its  terms of reference "determine the products that are within [its] 
terms of reference", and that, therefore, the pr oducts at issue are "frozen boneless chicken cuts 
impregnated with salt, with a salt content of 1.2% – 3%" 323 and are not "frozen boneless salted 
chicken cuts that have been deeply and homogenously  impregnated with salt in all parts with a total 
salt content of not less than 1.2%", as claimed by Brazil and Thailand.324 
164. Brazil and Thailand appeal from this finding a nd argue that, although Article 6.2 of the DSU 
does not explicitly require that the products at issue be identified in the panel request, in the past, the 
Appellate Body has relied on the product description contained in the panel request to determine the 
scope of the measure at issue.  Moreover, if the pr oducts at issue are in fact described in the panel 
request, then those products constitu te the products within the panel' s terms of reference.  Brazil and 
Thailand refer to the Appella te Body's finding in  EC – Computer Equipment  as support for their view 
that, "in order to identify 'the specific measure s at issue', it may ... be necessary to identify the 
products subject to the measures in dispute".325  Brazil also emphasizes that the "rationale" for the 
applicable tariff classification of the products at i ssue, explicitly set out in the two measures found by 
the Panel to be within its terms of reference, is  not the specific salt content, but the principle of 
preservation.326  Hence, the measures at issue are not limited to frozen boneless chicken cuts 
impregnated with salt, with a sa lt content of 1.2 to 3 per cent. 
165. We are not persuaded by these arguments.  Article 6.2 of the DSU does not refer to the 
identification of the products at issue;  rather, it re fers to the identification of the specific measures at 
issue.  Article 6.2 contemplates that the identifica tion of the products at issue must flow from the 
specific measures identified in the panel request.  Ther efore, the identification of the product at issue 
is generally not a separate and distinct element of a panel's terms of reference;  rather, it is a consequence of the scope of application of the speci fic measures at issue.  In other words, it is the 
measure  at issue that generally will define the  product  at issue. 
                                                     
 
323Panel Reports, para. 7.36.  
324Ibid., para. 7.34. 
325Appellate Body Report, EC – Computer Equipment , para. 67 (quoted in Brazil's other appellant's 
submission, para. 64;  and in Thailand's other appellant's submission, para. 61). 
326Brazil's other appellant's submission, para. 49. WT/DS269/AB/R 
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166. At the same time, we acknowledge that the Appellate Body held, in EC – Computer 
Equipment ,  that, with respect to certain WTO obligations , in order to identify the specific measures at 
issue, it may be necessary also to  identify the products at issue.
327  In that case, however, the measures 
at issue were individual classification decisions by  customs authorities in the European Communities, 
rather than legislative or regulatory measures of general application as in this case.  The Appellate 
Body held:   
... that "measures" within the meaning of Article 6.2 of the DSU are 
not only measures of general application, i.e., normative rules, but also can be the application of tariffs by customs authorities.  Since the request for the establishment of a panel explicitly refers to the 
application of tariffs on LAN e quipment and PCs with multimedia 
capability by customs authorities in  the European Communities, we 
agree with the Panel that the measures in dispute were properly identified in accordance with the requirements of Article 6.2 of the DSU.
328 (footnote omitted) 
167. We believe that, in circumstances in which a series of decisions of customs authorities are 
under challenge, it may be necessary to identify the products at issue in order to distinguish the 
contested measures (for example, individual classifi cation decisions by customs authorities) from 
other measures (different individual classification d ecisions by customs authorities).  By contrast, in 
the present dispute, the contested measures are not individual classification decisions by customs 
authorities but, rather, (i) a generally applicable  legal instrument (EC Regulation 1223/2002), as well 
as (ii) a decision requiring a Member State of the European Communities to withdraw a series of BTIs 
(EC Decision 2003/97/EC).  These two measures defi ne the products to which they apply, namely 
frozen boneless chicken cuts with a salt content of  1.2 to 1.9 per cent, and frozen boneless chicken 
cuts with a salt content of 1.9 to 3 per cent, respec tively.  Thus, it is evident that these products, which 
are explicitly mentioned in the specific measures iden tified in the panel requests, are the ones at issue 
in the present dispute. 
                                                      
327The Appellate Body stated in EC – Computer Equipment : 
We note that Article 6.2 of the DSU does not  explicitly require that the 
products to which the "specific measur es at issue" apply be identified.  
However, with respect to certain WTO obligations, in order to identify "the 
specific measures at issue", it may also be necessary to identify the products 
subject to the measures in dispute.  
(Appellate Body Report, EC – Computer Equipment , para. 67) (original emphasis) 
328Ibid., para. 65.   WT/DS269/AB/R 
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168. We note Brazil's argument that the criterion of "preservation" set out in the European 
Communities' measures applies also to frozen bonel ess chicken cuts with a salt content above 3 per 
cent.329  This fact is not disputed by the European Co mmunities.  It cannot, therefore, be excluded in 
the abstract that, pursuant to the "preservation"  criterion, the European Communities might classify 
chicken meat products with a salt content above 3 per cent in the same manner as meat products with 
a salt content between 1.2 and 3 per cent.330  However, given that no measures applicable to meat 
products with a salt content above 3 per cent were identified in the panel requests, there is no basis for 
findings by the Panel or by the Appellate Body th at this dispute covers also frozen boneless chicken 
cuts with a salt content above 3 per cent.   
169. In the light of the above, we  uphold   the Panel's finding, in paragraph 7.37 of the Panel 
Reports, that the products covered by  the Panel's terms of reference are those covered by the specific 
measures at issue, namely, frozen boneless chicken cuts im pregnated with salt, with a salt content of 
1.2 to 3 per cent.   
VIII.  Interpretation of the EC Schedule in the Light of Article 31 of the Vienna Convention 
A. The Ordinary Meaning of the Term "Salted" in Heading 02.10 of the EC Schedule 
170. The European Communities appeals the Panel's interpretation of the term "salted" in 
heading 02.10 of the EC Schedule.   
171. The Panel began its analysis by stating that it would seek to ascertain the ordinary meaning of 
the term "salted" in heading 02.10 of the EC Schedule pursuant to Article 31(1) of the Vienna 
Convention .  The Panel stated that it would consider  "the remaining relevant terms in that 
concession"—namely, "in brine", "dried", and "smoked"—as context  under Article 31(2) of the 
Vienna Convention .331  The Panel furthermore noted that Br azil and Thailand did not consider that 
"the result of the interpretative exercise will differ depending upon whethe r the terms other than 
'salted' in heading 02.10 are assessed as part of  the ordinary meaning under Article 31(1) of the 
Vienna Convention  or as context under Article 31(2)."332 
                                                      
329The term used in the two European Communities' m easures within the Panel's terms of reference is 
"long-term conservation". 
330We note in this context that, according to the Eu ropean Communities, boneless chicken cuts with a 
salt content of more than 3 per cent are not commerci ally traded in the European Communities. (European 
Communities' response to Question 27 posed by the Pane l, Panel Reports, p. C-82; see also Panel Reports, 
footnote 206 to para. 7.133) 
331Panel Reports, para. 7.108. 
332Ibid. (footnote omitted)  WT/DS269/AB/R 
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172. The Panel divided its analysis of the "ordinar y meaning", pursuant to Article 31(1) of the 
Vienna Convention , into two parts.  First, the Panel examined the "ordinary meaning of the term 
'salted' in subheading 0210.90.20 of the EC Schedule"
333;  in this part of its analysis, the Panel 
examined, exclusively, dictionary definitions  of the term "to salt", finding that "the ordinary meaning 
of the term 'salted' includes to season, to add sa lt, to flavour with salt, to treat, to cure  
or to preserve".334  Secondly, in a section entitled "Factual context for the consideration of the  
ordinary meaning"335, the Panel examined three aspects, na mely, the "products covered by the 
concession contained in heading 02.10"336;  the "flavour, texture, [and] other physical properties"337 of 
the products;  and "preservation".338   
173. The Panel concluded that "in essence, the ordinary meaning of the term 'salted' when 
considered in its factual context indicates that th e character of a product has been altered through the 
addition of salt."339  The Panel further found that "there is nothing in the range of meanings 
comprising the ordinary meaning of the term 'salted'  that indicates that chicken to which salt has been 
added is not covered by the concession contai ned in heading 02.10 of the EC Schedule."340  At the 
same time, the Panel held that the ordinary meani ng of the term "salted" was not dispositive of the 
question whether or not the specific products at issue were covered by the concession in 
heading 02.10.   
1. Analysis of the Ordinary Meaning and "Factual Context" of the Term 
"Salted"  
174. On appeal, the European Communities argues that  the analysis of "ordinary meaning" under 
the  Vienna Convention  does not contemplate an analysis of th e "factual context" of a treaty term and 
that the "factual context", as identified by the Panel,  is "not relevant" for determining the ordinary 
meaning of the term "salted".341  The European Communities contends that the Panel, under the 
heading "factual context", took into account elem ents that are not to be taken into account for 
purposes of ascertaining the ordinary meaning of a treaty term. 
                                                      
333Panel Reports, paras. 7.112-7.116. 
334Ibid., para. 7.116. 
335Ibid., heading VII.G.3(a)(iii) and paras. 7.140-7.149.  
336Ibid., para. 7.140.  
337Ibid., paras. 7.141-7.145.   
338Ibid., paras. 7.146-7.149.  
339Ibid., para. 7.150.   
340Ibid., para. 7.151.   
341European Communities' response to questioning at the oral hearing  WT/DS269/AB/R 
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175. We recall that Article 31(1) of the Vienna Convention  stipulates 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 the light of its object and purpose. 
The Appellate Body has observed that di ctionaries are a "useful starting point"
342 for the analysis of 
"ordinary meaning" of a treaty term, but they are not  necessarily dispositive.  The ordinary meaning of 
a treaty term must be ascertained according to the pa rticular circumstances of each case.  Importantly, 
the ordinary meaning of a treaty term must be seen in the light of the intention of the parties "as 
expressed in the words used by  them against the light of the surrounding circumstances".343   
176. Having said this, we would agree with the Eur opean Communities that there is no reference  
in the Vienna Convention  to "factual context" as a separate analytical step under Article 31.  
Nevertheless, we do not be lieve that the Panel was incorrect to consider elements such as the 
"products covered by the concession contained in  heading 02.10", "flavour, texture, [and] other 
physical properties" of the products falling under h eading 02.10, and "preservation" when interpreting 
the term "salted" as it appears in heading 02.10.  The Panel's consideration of these elements under 
"ordinary meaning" of the term "salted" complemented its analysis of the dictionary definitions of that 
term.  In any event, even if we were to agree with the European Communities that these elements are 
not to be considered under "ordinary meaning", they certainly could be considered under "context".  
Interpretation pursuant to the customary rules codified in Article 31 of the Vienna Convention is 
ultimately a holistic exercise that should not be mechanically subdivided into rigid components.  
Considering particular surrounding circumstances under the rubric of "ordinary meaning" or "in the 
light of its context" would not, in our view, change  the outcome of treaty interpretation.  Therefore, 
we find no error in the Panel's interpretive approach.   
2. The European Communities' Clai m under Article 11 of the DSU  
177. Having addressed the issue of "factual context", we  turn to the European Communities' claims 
under Article 11 of the DSU.  The European Comm unities submits that "a number of the Panel's 
conclusions amount to an egregious distortion of the facts before the Panel, clearly inconsistent with 
Article 11 [of the] DSU".344  In this respect, the European Co mmunities challenges three statements 
                                                      
342Appellate Body Report, US – Softwood Lumber IV , para. 59.  See also Appellate Body Report,  
US – Offset Act  (Byrd Amendment) , para. 248;  and Appellate Body Report, US – Gambling , para. 166. 
343Lord McNair, The Law of Treaties  (Oxford Clarendon Press, 1961), p. 365.   
344European Communities' appellant's submission, para. 62.    WT/DS269/AB/R 
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made by the Panel in the context of its analysis of the "factual context" of the term "salted" in 
heading 02.10 of the EC Schedule. 
178. The first of these conclusions is the Panel's statement that "it appears that even small 
quantities of salt may have a preservative effect".
345  The European Communiti es argues that the Panel 
"seriously misrepresent[ed] the technical evidence supplied by [one of the experts]".346   
179. The European Communities emphasizes that its expert referred to chicken in a "raw 
and  chilled   state"347 and that his statement does not suppor t what the European Communities views 
as the Panel's conclusion that "3% salt, without chilling , would prevent spoilage for a period of a few 
days".348 
180. On a careful reading of the Panel Reports, we are of the view that the Panel did not find that 
"3% salt, without chilling , would prevent spoilage for a period of a few days."  In the phrase "3% salt 
may prevent spoilage, albeit for a period of only a few days", the Panel does not state explicitly 
whether this proposition refers to chilled or unchilled meat;  however, in the immediately preceding 
sentence, the Panel reproduces a statement by the Eur opean Communities' expert that explicitly refers 
to "raw and chilled" meat.  As a result, we read th e Panel's conclusion to refer to the same type of 
meat as described by the expert, that is, "raw and chilled" meat.  We do not, therefore, agree with the 
European Communities that the Panel acted inconsiste ntly with its obligations  under Article 11 of the 
DSU in concluding that "it appears that even small quantities of salt may have a preservative 
effect".349   
                                                      
345Panel Reports, para. 7.146. 
346European Communities' appellant's submission, para . 63.  The Panel explained its observation in a 
footnote, which reads as follows: 
We do not consider that [the statement that even small quantities of salt may 
have a preservative effect is] inconsis tent with those made by the EC's 
expert, Professor Honikel, which are contained in Exhibit EC-32.  In 
particular, Professor Honikel states that "[i]n the raw and chilled state 3% salt is too low to prevent spoilage for more than a few days."  In other 
words, Professor Honikel appears to  accept that 3% salt may prevent 
spoilage, albeit for a period of only a few days.  
(Panel Reports, footnote 249 to para. 7.146) 
347European Communities' appellant's submission, para. 64. (emphasis added by the European 
Communities)  
348Ibid. (emphasis added) 
349Panel Reports, para. 7.146.  WT/DS269/AB/R 
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181. The second statement of the Panel with which the European Communiti es takes issue is the 
following, concerning variable salt content and additional means of preservation:   
The variable salt content and peri od of preservation that is, in our 
view, permissible on the basis of the ordinary meaning of the 
concession contained in heading 02.10 when read in its factual context would seem to explain, at least in part, why certain products that the European Communities categorizes under heading 02.10 
such as parma ham, prosciutto and jamón serrano may require 
additional means of preservation.
350   
The European Communities points out that "it is not the salt content of these products which means 
that additional means of preservation may be used",  but that "additional means of preservation" are 
not required for those products.351  The European Communities refers  to certain statements by the 
European Communities' expert 352 and argues that, in making the a bove-referred factual statement, the 
Panel went beyond the bounds of its discretion unde r Article 11 of the DSU and made findings that 
are contradicted by the uncontested evidence before it. 
182. Thirdly, the European Communities challenges the Panel's statement that the European 
Communities acknowledged that products under heading 02.10 may require means of preservation in 
addition to salting, and that this circumstance supported the view that a product preserved by salt for relatively short periods of time is not necessar ily precluded from qualifying under heading 02.10.
353   
The European Communities argues that, contrary to  the Panel's statement, what the European 
Communities acknowledged was that "preservation by sa lting, etc., did not imply that meat could not 
                                                      
350Panel Reports, para. 7.149.  
351European Communities' appellant's submission, para. 66.  
352The European Communities refers to the following statement by its expert: 
Parma ham, prosciutto and jamón serrano 
All these products are shelf-stab le for many months at ambient 
temperatures.  They spoil chemically by development of rancidity and not 
by the action of micro-organisms.  
(Ibid., para. 66) (footnote omitted) 
353The Panel stated that: 
... the European Communities' acknowle dgement that products covered by 
heading 02.10 may require means of preservation in addition to that effected through the addition of salt provides some support for the view that a 
product preserved by salt for relatively short periods of time is not 
necessarily precluded from qualifying under heading 02.10 of the EC Schedule.  
(Panel Reports, para. 7.149) (footnote omitted) WT/DS269/AB/R 
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be further preserved by other means."
354  The European Communities recalls scientific evidence 
before the Panel that "preserved meat might be refri gerated or packaged because of the steps, such as 
slicing, which had been taken to prepare it for retail sale."355  According to the European 
Communities, there is no logical connection betwee n these observations and the Panel's conclusion 
that "a product preserved by salt for relatively s hort periods of time is not necessarily precluded from 
qualifying under heading 02.10 of the EC Schedule."356 
183. We understand the Panel to have concluded that "there is nothing to suggest that products 
preserved by salt for relatively short periods of time are precluded from qualifying under ... 
heading 02.10".357  In order to confirm  this conclusion, the Panel looke d at certain products that the 
European Communities classifies under heading 02.10.358  In doing so, the Panel stated that these 
products "may require means of preservation in addition to [salting]", which the European 
Communities acknowledged as much, and that this fact  was "explain[ed]" by the "variable salt content 
and period of preservation".359   
184. We observe that the Panel refers to the "European Communities' acknowledgement  that 
products covered by heading 02.10 may require mean s of preservation in addition to that effected 
through the addition of salt"360;  however, the European Comm unities expressly stated that it " does 
not agree  with Thailand that [Parma ham, prosciutto , and jamón serrano] requi re additional means of 
preservation".361  In fact, the European Communities speaks of "meat that has been preserved for the 
long-term (by salting, drying, etc.)" and that is, subsequently, "further preserved (by chilling or even 
freezing) ... so that it may be preserved  for an even longer term ".362  Hence, we agree with the 
European Communities that the Panel's reasoning do es not accurately reflect all of the European 
Communities' statements before it. 
                                                      
354European Communities' appellant's submission, para. 70. (footnote omitted) 
355Ibid. 
356Panel Reports, para. 7.149.   
357Ibid., para. 7.148.  
358These products include Parma ham, prosciutto, and jamón serrano.  
359Panel Reports, para. 7.149.   
360Ibid. (emphasis added;  footnote omitted) 
361European Communities' response to Question 96 posed by the Panel, Panel Reports, p. C-110, 
para. 17. (emphasis added) 
362European Communities' response to Question 98 posed by the Panel, Panel Reports, p. C-111, 
para. 21. (emphasis added)  WT/DS269/AB/R 
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185. Secondly, the Panel's reasoning appears to be based on an implicit similarity between the 
products at issue, on the one hand—that is, frozen  and salted chicken cuts—and products such as 
Parma ham, prosciutto, and jamón serrano, on the other hand.  However, according to the evidence on 
the Panel record, in their unfrozen state, these two gr oups of products are rather different in terms of 
how quickly they are affected by spoilage.363  The Panel's statements do not sufficiently explain how 
the issue of "additional means of preservation" supports the proposition that "product[s] preserved by salt for relatively short periods of time [a re] not necessarily precluded from qualifying under 
heading 02.10 of the EC Schedule."
364   
186. We observe that the Panel statements challenge d by the European Communities were made in 
addition   to, and as  support   for, a conclusion that the Panel had reached  previously , on the basis of 
distinct and separate considerations.  The statemen ts contested by the European Communities contain 
some inconsequential inaccuracies, which do not, in our view, undermine the remainder of the Panel's 
analysis of what the Panel referred to as the "factual context".  Overall, we therefore do not find that the Panel acted inconsistently with its obligations under Article 11 of the DSU. 
3. Conclusion Concerning the Ordinary Meaning
 
187. In the light of the above considerations, we see no reason to disturb th e Panel's conclusion 
concerning the ordinary meaning of the term "sal ted", in paragraph 7.150 of the Panel Reports,  
that "in essence, the ordinary meaning of the term 'salted' when considered in its factual context 
indicates that the character of a product h as been altered through the addition of salt"365;  and, in 
paragraph 7.151 of the Panel Reports , that "there is nothing in the range of meanings comprising the 
ordinary meaning of the term 'salted' that indicates  that chicken to which salt has been added is not 
covered by the concession contained in heading 02.10 of the EC Schedule." 
                                                      
363According to the Panel's statements mentioned above, 3 per cent of salt may prevent spoilage in meat 
products, albeit for only a few days. (Panel Reports, footnote 249 to para. 7.146)  See also supra , para. 178 and 
footnote 346 thereto.  In contrast, Parma ham, prosciutto, and jamón serrano appear to have a much longer shelf-
life in their unfrozen state than "only a few days". (The European Communities' expert stated that the shelf-life 
of these products is several months. (Exhibit EC-32 submitted by the European Communities to the Panel))   
364Panel Reports, para. 7.149.  
365We note, in this respect, that in para. 7.141 of  the Panel Reports, the Panel stated that "factual 
context indicates that, in order for a product to be 'salted' within the meaning of the concession contained in heading 02.10 of the EC Schedule, the character of that product must have been altered through the addition of 
salt  as compared to that product's fresh state prior to the addition of salt ." (emphasis added) WT/DS269/AB/R 
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B. "Context" 
188. Having considered the Panel's interpretation of th e ordinary meaning of the term "salted" in 
heading 02.10 of the EC Schedule, we now turn to the Panel's interpretation of that term in its context.  
We will first recapitulate the Panel's findings a nd the arguments on appeal before providing our 
analysis of the relevant issues. 
189. In interpreting the term "salted" in its context, pursuant to Article 31(2) of the Vienna 
Convention , the Panel considered "the terms of relevant aspects of the EC Schedule", namely, the 
"other terms" contained in heading 02.10 of the EC Schedule, the structure of Chapter 2 of the 
EC Schedule, as well as "other parts of the EC Schedule".
366  The Panel then proceeded to consider 
whether there are any other agreements or instrume nts that qualify as "context" under Article 31(2) of 
the Vienna Convention ;  in that category, the Panel examined the Harmonized System367 as well as the 
Schedules of WTO Members other than the European  Communities.  The Panel concluded, overall, 
that its analysis of the "context" of the term "salte d" did not "add[] to [the] conclusions that [it had 
already drawn] regarding the ordinary meaning of the term 'salted'", and that the context of that term 
did not "indicate that [the] concession [in head ing 02.10 of the EC Schedule] is necessarily 
characterized by the notion of long-term preservation".368 
190. The European Communities, on the one hand, and Brazil and Thailand, on the other hand, 
appeal from this finding, as well as aspects of the Panel's reasoning concerning the context of the term 
"salted".  In essence, the European Communities argu es that various elements of the context of the 
term "salted" indicate that the term is characterized by the notion of "preservation".369  The European 
Communities also argues that, contrary to the Panel's finding, the structure of Chapter 2 of the Harmonized System "makes it clear" that the term "salted" refers to "preservation".
370  In contrast, 
                                                      
366Panel Reports, paras. 7.155, 7.157, 7.164, and 7.174.  
367The Panel decided to treat the Harmonized System "as if it qualifies as 'context' under Article 31(2) 
[of the Vienna Convention ]". (Ibid., para. 7.189)  See also infra , para. 194. 
368Ibid., para. 7.245.  The Panel then turned to an analysis of the "[m]atters to be taken into account 
together with the context", most notably "subsequent prac tice".  We review this analysis in Section X of this 
Report. 
369More specifically, the European Communities appeals from the Panel's finding that the term "in 
brine", in heading 02.10 of the EC Schedule, does not include the notion of preservation.  The European Communities also challenges the Panel's finding that the dictionary meanings of the terms in heading 02.10 
("salted, in brine, dried, and smoked") are "broader than just pertaining to preservation", contending that all the 
terms in heading 02.10 "have in common that they refer to preservation". (European Communities' appellant's submission, para. 74 (referring to Panel Reports, para. 7.162)) 
370Ibid., para. 74.    WT/DS269/AB/R 
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Brazil and Thailand argue that these same contextual el ements show clearly that the term "salted" is 
characterized by the notion of "preparation".371 
191. In addressing these arguments, we will first defi ne what constitutes "context".  Subsequently, 
we will analyze the meaning of the term "salted" in its context. 
1. What Constitutes Context for Interpreting the Term "Salted" in Heading 
02.10 of the EC Schedule?  
192. At the outset, we recall the customary rules of treaty interpretation codified in Articles 31(1), 
31(2), and 31(3) of the Vienna Convention : 
General rule of interpretation 
1.  A treaty shall be interprete d in good faith in accordance with 
the ordinary meaning to be given to the terms of the treaty in their 
context  and in the light of its object and purpose. 
2.  The context  for the purpose of the interpretation of a treaty 
shall comprise , in addition to the text, including its preamble and 
annexes: 
(a)  any agreement relating to the treaty which was made 
between all the parties in connec tion with the conclusion of the 
treaty; 
(b)  any instrument which was made by one or more parties 
in connection with the conclu sion of the treaty and accepted by 
the other parties as an instrument related to the treaty.   
3. There shall be taken into account, together with the context : 
(a) any subsequent agreement between the parties regarding 
the interpretation of the treaty or the application of its provisions;   
(b) any subsequent practice in the application of the treaty 
which establishes the agreement of the parties regarding its interpretation; 
                                                     
 
371Brazil and Thailand contend, in their respective other appellant's submissions, that the Explanatory 
Notes to Chapter 2 of the Harmonized System and heading 02.10 of the Harmonized System, read together with 
the Chapter Note to Chapter 16 thereof, show that the concept of "preparation" determines the classification 
under heading 02.10. (Brazil's other appellant's submission, paras. 79-88; Thailand's other appellant's submission, paras. 72-84)  In this context, Thailand ar gues that the Panel incorrectly assumed that all Notes to 
the Harmonized System were Explanatory Notes and, as such, were non-binding. (Thailand's other appellant's 
submission, para. 71)  Brazil furthermore argues that the evolution of the terms and structure of Chapter 2 indicate that the predecessor to heading 02.10 was also ch aracterized by the notion of "preparation".  (Brazil's 
other appellant's submission, para. 78) WT/DS269/AB/R 
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(c) any relevant rules of international law applicable in the relations between the parties. (emphasis added) 
193. It is clear from these provisions that the context of the term "salted" in heading 02.10 consists 
of the immediate, as well as the broader, context of that term.  The immediate context is the other terms of the product description contained in heading 02.10 of the EC Schedule.  The broader context 
includes the other headings in Chapter 2 of the EC Schedule, as well as other WTO Member 
Schedules.   
194. The Panel addressed the question whether the Harmonized System
372 constituted "context" for 
interpreting the term "salted" in heading 02.10 of th e EC Schedule.  In that respect, Brazil argued that 
the Harmonized System constituted "context" with in the meaning of Article 31(2)(b) of the Vienna 
Convention ;  Thailand contended that the Harmonized Sy stem qualified as context under Article 31(1) 
or under Article 31(3)(c);  the European Communitie s held the view that the Harmonized System was 
a "relevant rule of international law", within the meaning of Article 31(3)(c).373  The Panel did not 
definitively decide which position was correct, opining that "the outcome of the interpretative exercise 
[would not] depend[ ] upon whether [the Panel] classif[ies] the [Harmonized System] as 'context'" 
under Articles 31(1), 31(2)(b), or 31(3)(c) of the Vienna Convention .  The Panel decided to treat the 
Harmonized System "as if it qualifi es as 'context' under Article 31(2)".374  Before the Appellate Body, 
in response to questioning at the oral hearing,  all participants, and the United States, as third 
participant, agreed that the Harmonized System was relevant for interpretation of the terms of the EC 
Schedule.  The participants took the view that the Harmonized System was context for purposes of 
interpreting the terms of the EC Schedule or a "relev ant rule[] of international law applicable in the 
relations between the parties" that should be "tak en into account, together with the context", pursuant 
to Article 31(3)(c) of the Vienna Convention .375  The United States, as third participant, was of the 
view that the Harmonized System was a "supplementa ry means of interpretation", within the meaning 
of Article 32 of the  Vienna Convention .376   
                                                      
372The Harmonized System Convention entered into force in 1988.  The Harmonized System is 
administered by the Harmonized System Committee (the "HS Committee"), which was established under the 
auspices of the WCO.  The HS Commi ttee is composed of representatives fr om each of the contracting parties to 
the Harmonized System.  The HS Committee may prop ose amendments to the Harmonized System and may 
prepare explanatory notes, classification opinions, or provide other advice to be used as guidance in the 
interpretation of the Harmonized System. (Panel Reports, paras. 2.9 and 2.11)  
373Ibid., para. 7.189.   
374Ibid. 
375Responses of the participants to questioning at th e oral hearing. 
376United States' response to questioning at the oral h earing.  China, the other third participant, did not 
express a view on  this point.  WT/DS269/AB/R 
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195. The Harmonized System is not, formally, part of the WTO Agreement , as it has not been 
incorporated, in whole or in part, into that Agreement.  Nevertheless,  the concept of "context", under 
Article 31, is not limited to the treaty text—namely, the WTO Agreement —but may also extend to 
"any agreement relating to the treaty which was made  between all the parties in connection with the 
conclusion of the treaty", within th e meaning of Article 31(2)(a) of the Vienna Convention , and to 
"any instrument which was made by one or more parties in connection with the conclusion of the 
treaty and accepted by the other parties as an instrume nt related to the treaty", within the meaning of 
Article 31(2)(b) of the Vienna Convention .  Moreover, should the criteria in Article 31(3)(c) be 
fulfilled, the Harmonized System may qualify as a "relev ant rule[] of international law applicable in 
the relations between the parties". 
196. The Panel noted that the membership of the Harmonized System is "extremely broad" and 
includes the "vast majority of WTO Members".377  The Panel also pointed out, and no participant to 
this proceeding contested, that "the [Harmonized Sy stem] was used as a basis for the preparation of 
the Uruguay Round GATT schedules".378  The Appellate Body made a similar observation in  
EC – Computer Equipment , a report on which the Panel relied.379   
197. We note that, in 1983, the GATT Contracting Parties took a Decision setting out guidelines 
and "special procedures" to facilitate the "wide adoption of the Harmonized System"380;  later, in 
1991, they took a Decision on Procedures to Implement Changes in the Harmonized System.381  The 
                                                      
377Panel Reports, para. 7.187.  The European Communities became a Contracting Party to the 
Harmonized System Convention in September 1987;  Brazil in November 1988;  and Thailand in December 
1992.  The Harmonized System Convention entered into force for the European Communities in January 1988, for Brazil in January 1989, and for Thailand in January 1993.  
378Ibid., para. 7.187.   
379See ibid., para. 7.188, where the Panel referred to the Appellate Body's statement that the panel in 
EC – Computer Equipment  should have considered the Harmonized System and its Explanatory Notes when 
interpreting the terms of the EC Schedule, which was also at issue in that case.  The Appellate Body further 
stated: 
We are puzzled by the fact that the Pane l, in its effort to interpret the terms 
of [the EC Schedule], did not consider the Harmonized System  and its 
Explanatory Notes .  We note that during the Uruguay Round negotiations, 
both the European Communities and the United States were parties to the 
Harmonized System .  Furthermore, it appears to be undisputed that the 
Uruguay Round tariff negotiations were held on the basis of the Harmonized 
System's  nomenclature and that requests for, and offers of, concessions were 
normally made in terms of this nomenclature. 
(Appellate Body Report, EC – Computer Equipment , para. 89) (original italics) 
380GATT Concessions under the Harmonized Commodity Description and Coding System, Decision of 
12 July 1983, L/5470/Rev.1, BISD 30S/17.   
381GATT Concessions under the Harmonized Commodity Description and Coding System, Procedures 
to Implement Changes in the Harmonized System, Decision of 8 October 1991, L/6905, BISD 39S/300.  WT/DS269/AB/R 
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close link between the Harmonized System and the WTO agreements is also clear.  A number of 
WTO agreements that resulted from the Uruguay Ro und negotiations use the Harmonized System for 
specific purposes;  the Agreement on Rules of Origin  (in Article 9), the Agreement on Subsidies and 
Countervailing Measures  (in Article 27), and the Agreement on Textiles and Clothing (in Article 2 
and the Annex thereto) refer to the Harmonized Sy stem for purposes of defining product coverage of 
the agreement or the products subject to pa rticular provisions of the agreement.   
198. This close link to the Harmonized System is particularly true for agricultural products.
382  
Annex 1 to the  Agreement on Agriculture , which forms an integral part of that Agreement 383, defines 
the product coverage of that Agreement by referenc e to headings of the Harmonized System, both at 
the level of whole chapters and at the four-digit le vel in respect of specific products.  Moreover, it is 
undisputed that the Uruguay Round tariff negotiations for agricultural products were held on the basis 
of the Harmonized System and that all WTO Memb ers have followed the Harmonized System in their 
Schedules to the GATT 1994 with respect to agricultural products.  
199. The above circumstances confirm that, prior to, during, as well as after the Uruguay Round 
negotiations, there was broad consensus am ong the GATT Contracting Parties to  use  the 
Harmonized System as the basis for their WTO Sc hedules, notably with respect to agricultural 
products.  In our view, this consensus constitut es an "agreement" between WTO Members "relating 
to" the  WTO Agreement  that was "made in connection with th e conclusion of" that Agreement, 
within the meaning of Article 31(2)(a) of the Vienna Convention .  As such, this agreement is 
"context" under Article 31(2)(a) for the purpose of  interpreting the WTO agreements, of which the 
EC Schedule is an integral part.  In this light, we consider that the Harmonized System is relevant for 
purposes of interpreting tariff commitments in the WTO Members' Schedules.384  
200. We now turn to determine the meaning of the term "salted" in the light of the context 
provided by WTO law and the Harmonized System.   
                                                      
382In response to questioning at the oral hearing, the participants noted that the so-called Modalities 
Paper provides that market access commitments relating to agricultural products had to be based on the 
Harmonized System. (Articles 3(3)(i) and 3(3)(ii) of the Modalities for the Establishment of Specific Binding 
Commitments Under the Re form Programme, MTN.GNG/M A/W/24, 20 December 1993) 
383Article 21.2 of the Agreement on Agriculture  states: 
The Annexes to this Agreement are hereby made an integral part of this 
Agreement. 
384In view of this conclusion, we do not find it necessary to determine whether the Harmonized System 
could constitute a "relevant rule[] of international la w", within the meaning of Article 31(3)(c) of the Vienna 
Convention .   WT/DS269/AB/R 
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2. The Meaning of the Term "Salted" in  Heading 02.10 of the EC Schedule, 
Considered in its Context  
201. We recall that, in considering the meaning of the term "salted" in heading 02.10 of the 
EC Schedule in its context, the Pane l first looked at the "other terms contained in heading 02.10 of the 
EC Schedule", namely "in brine", "dried", and "smoked".  The Panel found it "difficult to identify a notion [—either preparation or preservation—] that characterizes all the terms in the concession 
contained in heading 02.10 of the EC Schedule".
385  The Panel also stated that the structure of 
Chapter 2 of the EC Schedule "does not provide any insights regarding the question of whether 
'preservation' and/or 'preparation', if either, ch aracterize Chapter 2 and, more particularly, the 
concession contained in heading 02.10 of the EC Schedule".386  The Panel referred as well to certain 
aspects of the Harmonized System and found that "inferences cannot be drawn from [the use of the 
word 'preservation' in] headings 08.12 and 08.14 wi th respect to the meaning of the term 'salted'".387  
In regard to the General Rules for the Interpreta tion of the Harmonized System, the Panel assumed 
that General Rule 3—applicable to  situations in which "goods are, prima facie , classifiable under two 
or more headings"—was not applicable to the dispute before it.388  Nor could the Panel find useful 
guidance from a consideration of other WTO Members' Schedules. 
202. Before commencing our analysis, we observe that  the participants to the present dispute put 
forward two competing concepts as being "intrinsic " and "central" to all the processes mentioned in 
heading 02.10, namely, on the one hand, that of "pre paration" of meat and, on the other hand, that of 
"preservation" of meat.389  The European Communities ar gues that the four processes in 
heading 02.10 ("salted", "in brine", "dried", and "s moked") are characterized, and have always been 
characterized, by the notion of "preservation", wh ile Brazil and Thailand argue that these processes 
are characterized solely by the notion of "preparation".   
                                                      
385Panel Reports, para. 7.162.  
386Ibid., para. 7.173.  
 387Ibid., para. 7.179.  
388Ibid., paras. 7.237-7.238.  The Panel also assumed that all parties to the dispute agreed that the 
conditions for the application of General Rule 3 were no t fulfilled.  On appeal, Brazil and Thailand argue that 
the Panel erred in making this assumption.  We address this issue infra in paras. 231-234. 
389See, for instance, European Communities' appella nt's submission, para. 82;  Brazil's appellee's 
submission, para. 93;  Brazil's other appellant's submission,  para. 87;  Thailand's appellee's submission, para. 45;  
and Thailand's other appellant's submission, para. 75. WT/DS269/AB/R 
WT/DS286/AB/R Page 80 
 
 
203. No participant provides a clear-cut definition of  "preparation" or "preservation", or of the 
demarcation between the two concepts.
390  The European Communities uses both the terms 
"preservation" and "long-term preservation".  The Panel understood the European Communities to 
mean by the term "preservation" or "long-term preser vation" that it is preservation of meat for "many 
or several months".391  In response to questioning at the or al hearing, the European Communities 
stated that these two terms are to be understood as referring to one and the same concept, and that 
they are interchangeable.  The European Communiti es argues that "preparation ... is something lesser 
than preservation"392, that "preservation is ... a kind of preparation"393, and that "preservation" is for a 
much longer period than temporary preservation for the purposes of transport394;  however, the 
European Communities has not indicated for what sp ecific period of time a product would have to be 
preserved in order to satisfy the criterion of "preservation".395     
204. In turn, Brazil and Thailand have not provided a clear definition of "preparation" and how 
"preparation" is to be distinguished from "prese rvation".  According to Brazil, "some types and 
degrees of preparation may preserve some produc ts" and "preparation" and "preservation" may 
"overlap"396; for Thailand, the two concepts are mutually exclusive for the purposes of heading 02.10.  
Thailand submits, in the alternative, that "the fact th at some types of preparation may incidentally also 
result in the preservation of [a] product does not undermine the notion that it is the preparation of that 
product that determines its essential character".397 
                                                      
390The Panel found that the concepts of preparation and preserva tion can overlap. (Panel Reports, 
paras. 7.114 and 7.162)  
391Ibid., para. 7.147. 
392European Communities' appellant's submission, para. 82.  
393Ibid., para. 104.  
394European Communities' response to questioning at the oral hearing.   
395In response to questions posed by the Panel, the European Communities argued that the time 
required for purposes of "preservation" would be "many or several months". (Panel Reports, footnote 251 to 
para. 7.147 (referring to European Communities' response s to Questions 49 and 96 posed by the Panel, Panel 
Reports, pp. C-91 and C-110)) 
Furthermore, the European Communities referred to "p reservation" as preservation that would keep the 
meat much longer than temporary pr eservation until its arrival, although it did not provide further specification 
of the time period.  (European Communities' response to questioning at the oral hearing) 
396Brazil's other appellant's submission, para. 86.  
397Thailand's other appellant's submission, paras. 77 and 83.    WT/DS269/AB/R 
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205. Thus, the central question before us, as it was before the Panel398, is whether a product must 
have been "preserved" by one of the processes referred  to in heading 02.10 in order to fall within the 
scope of that heading.  The concept of "preser vation", as advanced by the European Communities, 
implies that the application of  the processes in heading 02.10, by itself ,  must have the effect of 
placing the meat in a state of "preservation" for a certain period of time—not specified precisely by 
the European Communities—but, in any event, fo r a period exceeding the time of transportation.399  
The European Communities also st ated that "[w]hether the meat is salted for the purpose of 
preservation depends in particular  on the level of salt content"400 and that, for the products at issue, the 
salt content must be "much higher" than 3 per cent.401   
206. In contrast, the concept of "preparation", as proposed by Brazil and Thailand, suggests that 
meat must only have been subject to one or more of  the processes listed in heading 02.10, such that its 
character has been altered from its natural state, a nd that the notion of "preservation" by one of these 
processes is not a requirement under that heading.402 
                                                      
398The Panel defined that the "critical question" before it was "whether the term 'salted' in the 
concession contained in heading 02.10 covers the products at issue which, in turn, will entail a determination of whether that concession includes the re quirement that salting is for preservation and, more particularly, is for 
long-term preservation." (Panel Reports, para. 7.86 (footnote omitted))  
399European Communities' appellant's submission, para. 94;  European Communities' responses to 
questioning at the oral hearing.  
400European Communities' response to Question 88 posed by the Panel, Panel Reports, p. C-106, 
para. 4.  The European Communities also stated that "[i]mpregnation with salt is a necessary, but not sufficient condition" for preservation, and that "[i]n order to be preserved with salt, meat should be deeply and 
homogenously  impregnated with a level of salt sufficie nt to ensure long-term preservation". ( Ibid. (original 
underlining))   
401With respect to the criterion of "preservation" or "l ong-term preservation", we note that the criterion 
advocated by the European Communities for the meaning of "salted", in heading 02.10 of the EC Schedule,  
is that "salting", by itself, must "ensure long-term preservation, i.e., much higher than 3%". (European 
Communities' response to Question 88 posed by the Pane l, Panel Reports, p. C-106, para. 4)  The European 
Communities' expert's opinion before the Panel was that a minimum salt content of 7 per cent is necessary to 
preserve meat. (Panel Reports, para. 7.132)  The European Communities stated before the Panel that the 
European Communities is not aware that boneless chicken cu ts with a salt content of more than 3 per cent "has 
been traded" under heading 02.10. ( Ibid., para. 7.133 (referring to European Communities' response to Question 
27 posed by the Panel, Panel Reports, p. C-82))  The technical evidence on record shows that, although salt was 
"first used with the purpose to preserve meats, ... today its main purpose is to provide a product characterized by 
its aroma and flavor" (J. Andrade Silva, Topics on Food Technology  (Varela Editora, São Paulo, 2000), p. 181 
(Exhibit BRA-16 submitted by Brazil to the Panel)), and th at "regarding food preservation[,][salt] is now less 
used solely as a preservative than in combination with other preservatives and preservation methods". (E. Lück 
and M. Jager, Chemical Food Preservation: Characteristics, Uses, Effects  (Acribia, Zaragoza, 2000), p. 77 
(Exhibit BRA-16 submitted by Brazil to the Panel))  See also infra , footnote 411. 
402Brazil's other appellant's submission, para. 86;  Th ailand's other appellant's submission, para. 83.   WT/DS269/AB/R 
WT/DS286/AB/R Page 82 
 
 
207. We recall that the Panel concluded that "in essence,  the ordinary meaning of the term 'salted' 
... indicates that the character of a product h as been altered through the addition of salt".
403  We agree 
with this conclusion of the Pane l, which is not in appeal.  
208. Thus, the question before us can be subdivided  into the following two questions:  (i) does the 
term "salted" in heading 02.10, wh en considered in its context, indicate that meat to which salt has 
been added (such that the character of the product h as been altered) is to be considered as "salted", 
even if such salting does  not  place such meat in a state of "preservation"?  or (ii) must the salting be 
such as to place the meat in a stat e of "preservation"?  In our view , a positive answer to the first 
question would mean that heading 02.10 is found to  include  "salted" meat that  has not  been "salted" 
sufficiently to be placed in a state of "preservation", as well as   meat that  has  been "salted" to place 
it in a state of "preservation".  In contrast, a pos itive answer to the second qu estion suggests a reading 
of heading 02.10 that includes only meat that has been placed in a state of "preservation" by salting, 
and excludes other "salted" meat.404 
209. Therefore, we need to determine whether the c ontext of the term "salted"—or other elements 
of the customary rules of treaty interpretation—requi re or permit a reading of the term "salted" in 
heading 02.10 of the EC Schedule more narrowly than  the ordinary meaning of that term suggests;  
that is to say, that the customar y rules of treaty interpretation other than "ordinary meaning" indicate 
that "salting" under heading 02.10 contemplates exclusively the notion of "preservation". 
(a) The Terms of Heading 02.10 Other than "Salted" 
210. With these considerations in mind, we turn to the terms other than "salted" in heading 02.10 
of the EC Schedule.   
                                                      
403Panel Reports, para. 7.150.   
404We recall that, according to the Panel, the ordinary meaning of the term "salted" does  not  suggest 
that only meat that has been "salted" for purposes of "preservation" will be covered by heading 02.10. The Panel 
has also stated that "chicken or poultry to which salt has been added is not necessarily precluded from coverage 
under the concession contained in heading 02.10 of the EC Schedule". ( Ibid., para. 7.140)  In footnote 227 
thereto, the Panel also observed that "there is nothing  in the WCO response ... to indicate that ... products [to 
which salt has been added] would be excluded from coverage under heading 02.10 of the [Harmonized 
System]."    
We also note that the European Communities explicitly agrees that "the dictionary definitions of the 
term 'salted' include, but are not confined to the no tion of preservation." (European Communities' appellant's 
submission, para. 60)  The European Communities argues however, that "it is apparent from the rest of 
heading 02.10, and the structure of Chapter 2 (that is the context) that 'salted' is used in heading 02.10 to signify 
a process of preservation." ( Ibid., para. 61)  WT/DS269/AB/R 
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211. We share the European Communitie s' disagreement with the Panel' s interpretation of the term 
"in brine".  The Panel held that the notion of "preservation" does not appear in the dictionary 
definitions of "in brine".  However, we note that the dictionary definition of the term "brine" is "water 
saturated or strongly impregnated with salt; salt water".405  Given that the concept "preservation", as 
stated by the Panel, appears in the dic tionary definition for the term "salted"406, the term "brine" must 
include the concept of preservation.  We, therefore,  are of the view that the term "in brine" does 
contemplate "preservation". 
212. At the same time, we are not convinced that the terms "dried, in brine and smoked" refer 
exclusively   to the concept of "preservation".  We note that the dictionary meaning of the term "to dry" 
is, in relevant part, "to remove the moisture from by wiping, evaporation, draining;  preserve (food, 
etc.) by the removal of its natural moisture"407;  in turn, the dictionary meaning of the term "to smoke" 
is to "dry or cure (meat, fish, etc.) by exposure to smoke".408  The ordinary meanings of these terms 
suggest that the relevant processes can be applied to meat in various ways and degrees of intensity, 
thereby producing different effects on the meat, effe cts that may or may not place the meat in a state 
of "preservation".409  Nor are we persuaded by the European Communities' argument that the terms 
"dried" and "smoked", in the present context,  "concern [exclusively] means to preserve".410  It is clear 
from the evidence on the record that , while the processes mentioned in heading 02.10—"salted, dried, 
in brine and smoked"—may include the notion of  "preservation", these processes are also used 
extensively to confer special characteristics on meat products.411  Similar reasoning may also be valid 
with respect to the term "smoked". 
213. We, therefore, do not agree with the European  Communities that the terms of heading 02.10 
of the EC Schedule other than "salted", considered alone or together, suggest that the term "salted" 
                                                      
405Shorter Oxford English Dictionary , 5th edn, W.R. Trumble, A. Stevenson (eds) (Oxford University 
Press, 2002), Vol. 1, p. 290.   
406Panel Reports, para. 7.112.  
407Shorter Oxford English Dictionary , 5th edn, W.R. Trumble, A. Stevenson (eds) (Oxford University 
Press, 2002), Vol. 1, p. 766.   
408Ibid., Vol. 2, p. 2889. 
409For instance, the Panel discussed the effects on meat of  different levels of salt content and stated that 
"the amount of salt needed to preserve a product will differ depending upon for ho w long a particular product 
must be preserved." (Panel Reports, paras. 7.146-7.147) 
410European Communities' appellant's submission, para. 81.  
411We note that one of the scientific publications su bmitted by Brazil to the Panel states that "[s]alting 
is a food preservation process that has been known since ancient times, but is ... used  today ... also to confer 
special organoleptic characteristic s to food". (Andrade Silva, supra , footnote 401, p. 181)  Another scientific 
publication submitted by Brazil to the Pa nel states that "salt ... is used as [a flavour enhancer] rather than as a 
preservative ingredient". (Lück and Jager, supra , footnote 401, p. 77) WT/DS269/AB/R 
WT/DS286/AB/R Page 84 
 
 
must be read as referring  exclusively   to products that have a level of salt content sufficient to ensure 
"preservation" by salting.   
(b) The Structure of Chapter 2 of the EC Schedule and the Harmonized 
System and the Relevant Notes Thereto 
214. We now turn to consider whether the structure  of Chapter 2 of the EC Schedule and  
the Harmonized System support a reading of heading 02.10 as referring exclusively  to processes  
of "preservation".  We note that, among the headings of Chapter 2 other than heading 02.10, 
heading 02.07
 412 is of particular relevance, given that  the European Communities argues that the 
products at issue are properly classified under that h eading.  We recall that, pursuant to the principle 
of effective treaty interpretation, it is the task of th e treaty interpreter to give meaning to all the terms 
of the treaty.413  We will examine whether such a reading can be derived from the relevant Notes to 
the Harmonized System;  the Notes of relevance in this context are the Chapter Note to Chapter 16 414, 
the Explanatory Note to Chapter 2 415, and the Explanatory Note to heading 02.10.416   
                                                      
412Heading 02.07 refers to "meat and edible offal, of  the poultry of heading No. 0105, fresh, chilled, or 
frozen".  
413Appellate Body Report, Japan – Alcoholic Beverages II , p. 12, DSR 1997:1, p. 97 at 106;  Appellate 
Body Report, Argentina – Footwear (EC) , para. 81;  Appellate Body Report, US – Gasoline , p. 23, DSR:1996:1, 
3, at 21.  
414Chapter Note to Ch apter 16 states: 
This Chapter does not cover meat, meat offal, fish, crustaceans, molluscs or 
other aquatic invertebrates, prepared  or preserved  by the processes specified 
in Chapter 2 or 3 or heading 05.04. (emphasis added) 
415The Explanatory Note to Chapter 2 provides: 
This Chapter covers meat and meat offal in the following states only, 
whether or not they have been previously scalded or similarly treated but not 
cooked : 
(1) Fresh (including meat and meat offal, packed with salt as a temporary 
preservative during transport ). 
(2) Chilled, that is, reduced in temperature generally to around 0 °C, without 
being frozen. 
(3) Frozen, that is, cooled to belo w the product's freezi ng point until it is 
frozen throughout. 
(4) Salted, in brine, dried or smoked.  (emphasis added) 
416The Explanatory Note to heading 02.10 provides:  
This heading applies to all kinds of meat and edible meat offal which have 
been prepared as described in the heading, other than pig fat, free of lean 
meat, and poultry fat, not rendered or otherwise extracted (heading 02.09)[.] 
With respect to the Notes to the Harmonized System, we recall that the Panel found that Chapter Notes were 
binding and that Explanatory Notes were "non-binding". (Panel Reports, para. 7.220)  WT/DS269/AB/R 
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215. The European Communities argues th at the headings of Chapter 2 fall into two categories that 
are distinguished by whether the meat has or ha s not been subjected to the processes listed in 
heading 02.10.  If these processes have  been applied, the products fall into the first category, namely, 
heading 02.10;  if these processes have not been applied, the pr oducts fall under one of headings 
02.01 through 02.08, all of which fall into the other category.417   
216. The Panel found that "there may be a host of reas ons that, individually and/or in combination, 
could explain the unique formulation used in heading 02.10."418  The Panel concluded that the 
structure of Chapter 2 did not provide "any insight s regarding the question of whether 'preservation' 
and/or 'preparation' ... characterize ... heading 02.10 of the EC Schedule".419 
217. We note that heading 02.10 does not make refere nce to refrigeration.  By contrast, other 
headings of Chapter 2—that is, headings 02. 01 to 02.09—refer to freezing and chilling.  The 
European Communities argues that (i ) this circumstance implies that refrigeration is of "little or no 
importance" for heading 02.10, and that (ii) the re ason for this is that these products are "preserved" 
by the processes mentioned in heading 02.10.420  The European Communities uses this argument to 
support its view that heading 02.10 covers exclusively  meats that have been "preserved" by the 
processes referred to in that heading.  
                                                      
417European Communities' appellant's submission, para. 88.   
418Panel Reports, para. 7.172. 
419Ibid., para. 7.173.  The Panel stated:   
In particular, it may be that it is based on the fact that, in contrast to other 
processes referred to in the headings of  Chapter 2, the processes referred to 
in heading 02.10 "prepare" meat so that the meat's natural condition is 
altered, as has been submitted by the complainants;  and/or the unique 
formulation may be linked to the fact that the processes referred to in 
heading 02.10 on their own "preserve" the meat to which those processes are 
applied, as has been submitted by the European Communities;  and/or, the formulation may be based on a factor that is completely different from the 
"preparation" and "preservation" theories that have been put forward by the 
parties.  For example, the terms and structure of heading 02.10 may merely reflect international trade patterns.  The Panel considers that, on the basis of 
the terms and structure of heading 02.10, it is difficult to know which of the 
above-mentioned reasons is the applicable one, if any.  
(Ibid., para. 7.172 (footnote omitted)) 
420European Communities' appellant's submission, para. 89. WT/DS269/AB/R 
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218. We agree with the participants that the reas on heading 02.10 does not refer to refrigeration is 
that refrigeration is of "little or  no importance" for that heading.
421  In our view, whether a product has 
been frozen or not will not influence whether that  product falls under heading 02.10.  At the same 
time, we do not agree with the European Communities that the fact that heading 02.10 does not refer 
to refrigeration leads to the conclusion that meat falling under heading 02.10 must, necessarily , have 
been  preserved   by one of the processes referred to in that  heading and that, as a result, heading 02.10 
covers  exclusively   meats that have been "preserved" by the processes referred to in that heading.  In 
other words, it does not follow from the absence of refri geration in the text of heading 02.10 that the 
processes referred to in heading 02.10 must  necessarily   place the meat in a state of "preservation".  
Furthermore, as we explain below, the Chapter No te to Chapter 16 and the Explanatory Note to 
heading 02.10 confirm that Chapter 2 covers  both preserved and prepared products.   
219. We turn next to consider certain Chapter a nd Explanatory Notes to the Harmonized System 
that also form part of the context for purp oses of interpreting terms in the EC Schedule.422   
220. The Panel referred to the Explanatory Note to heading 02.10 of the Harmonized System, 
which provides: 
This heading applies to all kinds of  meat and edible meat offal which 
have been  prepared  as described in the heading, other than pig fat, 
free of lean meat, and poultry fat, not rendered or otherwise extracted (heading 02.09)[.] (emphasis added) 
221. The Panel also considered th e Chapter Note to Chapter 16
423, which excludes from 
Chapter 16424 products that are "prepared or preserved" by the processes specified, inter alia , in 
Chapter 2.425 
                                                      
421European Communities' appellant's submission, para. 89;  Thailand's appellee's submission, para. 44;  
see also Brazil's appellee's submission, para. 100; and Brazil's response to Panel Question 65 posed by the 
Panel, Panel Reports, pp. C-22-C-23. 
422See  supra , para. 214. 
423We observe that this Note is not, as stated by th e Panel, an Explanatory Note, but rather a Chapter 
Note to Chapter 16 of the Harmonized System.  See infra , para. 224. 
424Chapter 16 covers "Preparations of meat, of fish or of crust aceans, molluscs or other aquatic 
invertebrates."  According to the Explanatory Note to Chapter 16, this Chapter covers products that have been, for instance, "[b]oiled, steamed, grilled, fried, roasted or otherwise cooked". 
425The full text of that part of the Chapter Note to Chapter 16 states: 
This Chapter does not cover meat, meat offal, fish, crustaceans, molluscs or 
other aquatic invertebrates, prepared or preserved by the processes specified 
in Chapter 2 or 3 or heading 05.04.   WT/DS269/AB/R 
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222. The Panel then went on to find that, although th e above Notes "may suggest that the processes 
referred to in heading 02.10 are processes for th e 'preparation' of meat", the Notes were not 
"particularly helpful for [the Panel's] purposes".426  Specifically, the Panel was not certain whether the 
concepts of "preparation" and "preservation" we re "mutually exclusive" in the context of 
heading 02.10. 427  The Panel therefore concluded that: 
[the] Notes to the [Harmonized System] do not clarify the ordinary 
meaning of the term "salted" in the concession contained in heading 02.10 of the EC Schedule [and] do not indicate that that concession is necessarily characterized by the notion of long-term 
preservation.
428 
223. The European Communities, on the one hand, and Brazil and Thailand, on the other hand, 
appeal this finding.  The European Communities ar gues that the Panel failed to consider another 
relevant Note—namely, the Explanatory Note to Ch apter 2—and that a correct consideration of this 
Note supports the view that heading 02.10 is ch aracterized by the notion of "preservation".  In 
contrast, Brazil and Thailand argue that the Explanator y Note to Chapter 2 and that to heading 02.10, 
read together with the Chapter Note to Chap ter 16, indicate that "preparation", instead of 
"preservation", determines the classification under he ading 02.10.  Thailand also argues that the Panel 
erred in its legal characterization of the Chapte r Note to Chapter 16 as an Explanatory Note.429  All of 
these claims concern the same Chapter Note and E xplanatory Notes, and thus we will address them 
together. 
224. At the outset, we agree with Thailand that the Panel incorrectly characterized the Note to 
Chapter 16 as an "Explanatory Note", rather than as a "Chapter Note".430  We also agree with the 
general proposition that the Chapter Notes to the Harmonized System, which are binding, may have 
greater probative value than the Explanatory Notes to the Harmonized System, which are non-
                                                      
426Panel Reports, para. 7.223.  
427Ibid. 
428Ibid. 
429According to Thailand, as a result of its incorrect characterization of the Note , the Panel's conclusion 
concerning the Notes to the Harmonized System is "incorr ect and results in the undermining of the weight to be 
given to the content of this Note for the interpretation of  the term 'salted' in heading 02.10." (Thailand's other 
appellant's submission, para. 71.)  
430Ibid., paras. 66-71.  WT/DS269/AB/R 
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binding.
431  However, we do not believe that the inaccurate characterization of the Note 
"undermin[es]" the Panel's overall analysis  of the Notes to the Harmonized System432, as claimed by 
Thailand.  Indeed, Thailand has not explained how th e Panel's analysis would have been different had 
the Panel correctly characterized the Note at issue as a "Chapter Note".433  Nor is it clear to us how the 
Panel's conclusion with respect to the term "sa lted" in heading 02.10 would have changed by 
assigning greater weight to the Chapter Note to Chapter 16. 
225. We also agree with Brazil and Thailand that the Explanatory Note to heading 02.10—which 
refers to meat that has been "prepared", but does not mention "preserved"—suggests that 
heading 02.10 is characterized by the notion of "p reparation".  Brazil and Th ailand argue that products 
subject to one of the processes referred to in h eading 02.10, but not necessarily placed in a state of 
"preservation" by application of these processes, w ould fall under heading 02.10.  Such a conclusion, 
therefore, would preclude a reading of the term "s alted" as suggested by th e European Communities, 
namely, as referring exclusively to meat that has been  "salted" so as to place the meat in a state of 
"preservation".  The reading suggested by Brazil an d Thailand would appear to be supported by the 
fact that other Notes to the Harmonized System (m ost importantly, the Chapter Note to Chapter 16) 
use the terms "prepared", "preserved", and "preservation",434 suggesting that the use of the term 
"prepared" alone, without reference to "preserved", in  the Explanatory Note to heading 02.10, is not 
inadvertent.   
226. At the same time, we also observe that the Notes to the Harmonized System do not provide a 
definition of the terms "preparation" or "preservatio n".  Nor do the Notes suggest that the two terms 
could not operate in combination and that they are mutually exclusive.  Th e terms "preparation" and 
"preservation" do not encompass all products falling under Chapter 2, because "fresh" meat cannot be 
characterized as "prepared" meat.  Moreover, the Harmonized System contains, in other sections, references to "preparation" and "preservation" in the text of the headings, as opposed to only in the 
                                                     
 
431Thailand's other appellant's submission, para. 71. The probative value of a Note will, however, also 
depend on how relevant it is to the interpretative question at issue;  as a result, it cannot be excluded that an 
Explanatory Note that directly addresses a given interp retative question will be more probative than a Chapter 
Note that does not relate specifically to that interpretative question. 
432Ibid.  
433Brazil and Thailand rely on the Chapter Note to Chapter 16 in order to establish that Chapter 2 
"covers meat ... which is prepared or preserved".  Brazil's and Thailand's subsequent argument that heading 02.10 refers to meat that is "prepared" is not based on the Chapter Note to Chapter 16, but, rather, on 
the Explanatory Notes to Chapter 2 and heading 02.10.   
434The Chapter Note to Chapter 16 refers to "meat ... pr epared or preserved", to "preservation", and to 
"[f]ood preparations".  The Explanatory Note to Chapter 16 refers to "prepared foodstuffs", and "foodstuffs ... 
[p]repared as sausages";  and the Explanatory Note to heading 16.01 refers to "preparations".  WT/DS269/AB/R 
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Notes.435  It seems to us that, where the Harmonized System considers that these terms control the 
definition of the scope of a heading, it will use them  expressly.  In our view, the terms "preparation" 
and "preservation", when found in the Explanatory Not es rather than in the text  of the heading, need 
not be read as dispositive and necessarily mutually exclusive. 
227. Turning to the content of the Explanatory Note to  Chapter 2, we are of the view that the Panel 
should have taken into account explic itly this Note.  We observe that the Note provides that meat that 
has been "packed with salt as a temporary preservative during transport" qualifies as "fresh meat" 
(under heading 02.07 436).  The Note suggests that mere presence of salt does  not  imply that the meat 
falls under heading 02.10 as "salted" meat.437  
228. However, the fact that, pursuant to that No te, meat "packed with salt as a temporary 
preservative during transport" is considered "fresh" (under heading 02.07), rather than as "salted" 
meat (under heading 02.10), does not lead to the conclusion suggested by the European Communities, 
namely, that the term "salted" refers exclusively  to meat that has been "pr eserved" by salting.  Hence, 
we are of the view that the Explanatory Note to Chapter 2 is not conclusive with respect to the 
question whether the term "salted" , in heading 02.10, refers  exclusively   to meat that has been 
"preserved" by salting and does not include meat merely "prepared" by salting. 
229. As a result, we conclude that the Harmoni zed System and the relevant Chapter and 
Explanatory Notes thereto do not support the view that heading 02.10 is characterised  exclusively  by 
the concept of preservation.  Furthermore, the term "salted" in heading 02.10, when considered in its 
context, suggests that meat to which salt has been adde d, so that its character has been altered, will be 
"salted" within the meaning of heading 02.10, even if such salting does not place such meat in a state 
of "preservation".  Heading 02.10 of the Harmonized System, read in its context, suggests that it is 
neither limited to, nor excludes, meat that is "pre pared" by salting or that has been "preserved" by 
salting.  Specifically, for resolving this dispute, heading 02.10 does not contain a  requirement   that 
salting must, by itself, ensure "preservation". 
                                                      
435For instance, Chapter 16 refers to "preparations of meat", while the term "preservation" is found,  
for instance, in heading 08.14 ("[p]eel of citrus ... provisionally preserved") and heading 07.11 ("[v]egetables 
provisionally preserved"). 
436We recall that heading 02.07 refers to "meat and edible offal, of the poultry of heading No. 0105, 
fresh, chilled, or frozen".  
437In this respect, we recall that the Panel found that, in order for a product to be "salted" within the 
meaning of heading 02.10, "the character of that product must have been altered through the addition of salt as 
compared to that product's fresh state prior to the addition of salt".  (Panel Reports, para. 7.141)  WT/DS269/AB/R 
WT/DS286/AB/R Page 90 
 
 
230. Before the Panel, the question arose as to the permissibility of using the criterion of 
preservation in Members' Schedules.  In this respect, we note that the WCO, in a letter to the Panel, 
stated that "[w]hen goods are classified in the Harmonized System, it is always done on the basis of 
the objective characteristics of the product at the time of importation."
438  We believe, therefore, that it 
is possible to apply the criterion of "preservati on", provided that is discernible as an objective 
characteristic at the time of the importation of the product.  In this context, we note that there are 
instances in the Harmonized System where the cr iterion of "provisional preservation" is used, 
suggesting that the criterion of "preservation" is not intrinsically objectionable under the Harmonized 
System.439  As a result, we are of the view that the Ha rmonized System does not, in principle, rule out 
the concept of "preservation" under th e term "salted" in heading 02.10.440  The question whether the 
tariff commitment in heading 02.10 the EC Schedule is  characterized exclusiv ely by the concept of 
"preservation" is a separate question which we address below.  In that respect, we observe that, within 
the parameters required by the Harmonized System, Members have certain flexibility to structure and 
negotiate further specifications in thei r particular tariff commitments.   
3. Rule 3 of the General Rules for the Interpretation of the Harmonized System  
231. We now turn to consider the General Rules fo r the Interpretation of the Harmonized System 
(the "General Rules").  We recall that the Panel found that: 
... all the parties appear to be in agreement that a textual and 
contextual analysis of the rele vant headings indicates that the 
products at issue in this dispute are not prima facie classifiable under two or more headings.  Accordingly, we will proceed on the same assumption with the result that we will not apply General Rule 3.  Given our conclusion that General Rule 3 is inapplicable, we do not 
consider it necessary to address the various arguments that have been 
advanced by the parties regarding that Rule.
441  
                                                      
438WCO's response to Question 1 posed by the Panel, Panel Reports, p. C-134.  See also European 
Communities' response to Question 90 posed by th e Panel, Panel Reports,  p. C-108, para. 7. 
439For example, heading 5.10 mentions "[a]mbergris ... otherwise provisionally preserved ";  
heading 08.14 speaks of "[p]eel of citrus ... provisionally preserved ";  and heading 07.11 concerns  
"[v]egetables provisionally  preserved ". (European Communities' appellant's submission, para. 201) (emphasis 
added) 
440See also infra , para. 246. 
441Panel Reports, para. 7.238.  WT/DS269/AB/R 
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232. Brazil and Thailand appeal this finding.  Both ar gue that the Panel incorrectly found that the 
parties were in agreement that General Rule 3 was in applicable in this case.  Brazil also requests that 
the Appellate Body complete the analysis and find that the products at issue are classifiable under 
heading 02.10 by virtue of General Rule 3( a) or by virtue of General Rule 3(c).442 
233. We note that the General Rules are, by their very name, rules for the interpretation  of the 
Harmonized System.  Specifically, General Rule 3 deals with the question of classification in circumstances in which goods are  prima facie   "classifiable" under two or more headings.   
234. We recall that the task of the Panel, as well as  of the Appellate Body upon appeal, is to 
determine whether the European Communities has acted  consistently with Article II:1(a) and with 
Article II:1(b) of the GATT 1994 with respect to the products at issue.  Therefore, in our view, the 
primary task of the Panel, as well as of the Appella te Body, is to determine the meaning and scope of 
the concession contained in heading 02.10 of the EC  Schedule.  In our view, it is only after properly 
determining the meaning and scope of the tariff commitment in heading 02.10 that the question 
whether the products at issue are  prima facie   classifiable under two or more headings can arise.  
General Rule 3 is relevant in this case only for the second  step, namely, under which heading a 
                                                     
 
442General Rule 3 provides: 
When by application of Rule 2(b) or for any other reason, goods are, prima 
facie , classifiable under two or more headings, classification shall be 
effected as follows: 
(a) The heading which provides the most specific description shall be 
preferred to headings providing a more general description.  However, when two or more headings each refer to part only of the materials or substances 
contained in mixed or composite goods or to part only of the items in a set 
put up for retail sale, those headings are to be regarded as equally specific in 
relation to those goods, even if one of them gives a more complete or 
precise description of the goods. 
(b)  Mixtures, composite goods consisting of different materials or 
made up of different components, and goods put up in sets for retail sale, 
which cannot be classified by reference to 3(a), shall be classified as if they 
consisted of the material or component which gives them their essential 
character, insofar as this criterion is applicable. 
(c)  When goods cannot be classified by reference to 3(a) or 3(b), they 
shall be classified under the heading which occurs last in numerical order 
among those which equally merit consideration.  WT/DS269/AB/R 
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product is properly classified.
443  It is therefore not necessary for us to consider, at this stage, General 
Rule 3.   
4. Conclusion Concerning "Context"  
235. We, therefore,  uphold   the Panel's finding, in paragra phs 7.245 and 7.331(c) of the Panel 
Reports, that the context of the term "salted" in the tariff commitment under heading 02.10 of the 
EC Schedule "indicates that that concession is not necessarily characterized by the notion of long-term preservation".  In the light of our findings  in paragraphs 229-230,  we will continue our 
examination to determine whether there has been an agreement between the European Communities 
and the other treaty parties on the inclusion of the concept of "preservation" in heading 02.10 of the 
EC Schedule. 
IX. Object and Purpose 
236. We next discuss whether the Panel erred in finding that an interpretation of the term "salted" 
in the tariff commitment under heading 02.10 of the EC Schedule, as including the criterion of long-term preservation, "could undermine the object an d purpose of security and predictability", which 
underlie both the WTO Agreement and the GATT 1994.
444 
237. The European Communities appeals several aspec ts of the Panel's r easoning and conclusions 
relating to "object and purpose".  The European Communities submits that the Panel relied on the 
"object and purpose" of the treaty (that is, the WTO Agreement  and the GATT 1994) and failed to take 
into account the "object and purpose" of the releva nt treaty provision (that is, Article II of the GATT 
1994, read in conjunction with heading 02.10 of th e EC Schedule, including its underlying criterion of 
                                                      
443We note that General Rule 3 refers to circumstances in which a product is " prima facie " classifiable 
under two or more headings.  In this respect, nothing on the Panel record indicates how the term " prima facie " 
has been interpreted by the WCO's Harmonized System Co mmittee, or the WCO itself.  However, according to 
information provided by the WCO Secretariat to the Pane l, the Harmonized System Committee has not, so far, 
considered classification issues related to headings 02.07 and 02.10. (WCO's response to Question 8 posed by 
the Panel, Panel Reports, p. C-139)  Furthermore, the WCO did not provide specific guidance to the Panel as to 
the meaning of the term "specific", so as to determin e the "most specific description" within the meaning of 
General Rule 3(a) for purposes of the present disp ute;  according to the WCO, heading 02.07 could be 
considered more "specific" due to th e term "poultry", but, at the same time , heading 02.10 could be considered 
more "specific" by virtue of the term "salted". (Panel Repor ts, para. 7.235)  We also no te that the participants do 
not argue that General Rule 3(b) is applicable to the dispute at hand. 
444Panel Reports, para. 7.323.  WT/DS269/AB/R 
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"long-term preservation").445  The European Communities also argues that the Panel erroneously 
relied on the concept of the "expansion of trade" in  its analysis of the "object and purpose" of 
maintaining the security and predictability of ta riff concessions.  In addition, the European 
Communities alleges that the Panel erred by findi ng that the application of the criterion of 
"preservation" would undermine the security and predic tability of the tariff commitment.  Finally, the 
European Communities contends that heading 02.10 of the EC Schedule was not intended to address 
"frozen [salted] poultry".446 
A. Object and Purpose of the Treaty or of a Particular Treaty Provision 
238. We begin our analysis with the question whethe r the Panel incorrectly distinguished between 
the object and purpose of the treaty and that of its individual provisions.447  It is well accepted that the 
use of the singular word "its" preceding the term "object and purpose" in Article 31(1) of the Vienna 
Convention  indicates that the term refers to the treaty as a whole448;  had the term "object and 
purpose" been preceded by the word "their", the use of the plural would have indicated a reference to 
particular "treaty terms".  Thus, the term "its object  and purpose" makes it clear that the starting point 
for ascertaining "object and purpose" is  the treaty itself, in its entirety.449  At the same time, we do not 
believe that Article 31(1) excludes taking into account the object and purpose of particular treaty 
terms, if doing so assists the interpreter in determining the treaty's object and purpose on the whole.  We do not see why it would be necessary to divorce a treaty's object and purpose from the object and 
purpose of specific treaty provisions, or vice versa .  To the extent that one can speak of the "object 
and purpose of a treaty provision", it will be informed  by, and will be in consonance with, the object 
and purpose of the entire treaty of which it is but a component.
450   
                                                      
445European Communities' appellant's submission, pa ras. 180-181.    According to the European 
Communities, a treaty interpreter should consider the obj ect and purpose of the provision at issue first,  
before considering the object and purpose of the agreement.  The European Communities submits that, in  US – Line Pipe , the Appellate Body referred to the object and purpose of Article XIX of the GATT 1994 
(Appellate Body Report, US – Line Pipe , para. 81) and in Chile – Price Band System , the Appellate Body relied 
on the object and purpose of Article 4 of the Agreement on Agriculture . (Appellate Body Report, Chile – Price 
Band System , para. 234) 
446European Communities' appellant's submission, paras. 212-219. 
447Ibid., paras. 179-182 (referring to Panel Reports, pa ra. 7.316).  The European Communities asserts 
that the Panel should have ascertained the object and purpose of Article II of the GATT 1994, read in 
conjunction with heading 02.10 of the EC Schedule, and its underlying purpose of "preservation".   
448See Sinclair, supra , footnote 36, pp. 130-135. 
449Panel Report, paras. 7.316-7.317.  See also Sinclair, supra , footnote 36, pp. 130-135. 
450In this regard, we refer to the Appellate Body Report in  Argentina – Textiles and Apparel , where the 
Appellate Body stated that "a basic object and purpose of the GATT 1994 [was] re flected in Article II".  
(Appellate Body Report, Argentina – Textiles and Apparel , para. 47)  WT/DS269/AB/R 
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239. Having said this, we caution against interpreting WTO law in the light of the purported 
"object and purpose" of specific provisions, paragra phs or subparagraphs of the WTO agreements, or 
tariff headings in Schedules, in is olation from the object and purpose of the treaty on the whole.  Even 
if, arguendo , one could rely on the specific "object and purpose" of heading 02.10 of the EC Schedule 
in isolation
451, we would share the Panel's view that " one Member's unilateral object and purpose for 
the conclusion of a tariff commitment cannot form the basis"452 for an interpretation of that 
commitment, because interpretation in the light of Articles 31 and 32 of the Vienna Convention  453 
must focus on ascertaining the common  intentions of the parties.454   
240. For these reasons, we have no difficulty with the Panel's approach in interpreting the tariff 
commitment at issue in this case in th e light of the object and purpose of the WTO Agreement  and the 
GATT 1994. 
B. Did the Panel Rely on "Expansion of Trade" as an Interpretative Principle? 
241. We note that the Panel deduced the object and purpose of the WTO Agreement  and the 
GATT 1994 from the preambles and from Appellate Body statements.455  The Panel referred to the 
Appellate Body statement in Argentina – Textiles and Apparel   that "a basic object and purpose of the 
GATT 1994, as reflected in Article II, is to preser ve the value of tariff concessions negotiated by a 
Member with its trading partners, a nd bound in that Member's Schedule."456  The Panel found that: 
                                                      
451The European Communities argues that the notion of  "long-term preservation" characterizes the four 
processes mentioned in heading 02.10, that is, "salted", "in brine", "dried", and "smoked". 
452Panel Reports, para. 7.326. 
453The Panel relied on Appellate Body Report, EC – Computer Equipment , para. 84;  and Sinclair, 
supra , footnote 36, pp. 130-131 (referred to in Panel Reports, footnote 536 to para. 7.326). 
454Appellate Body Report, EC – Computer Equipment , para. 84. 
455The Panel relied on the Appellate Body statement in  EC – Computer Equipment  that "the security 
and predictability of 'the reciprocal and mutually advantageous arrangements directed to the substantial 
reduction of tariffs and other barriers to trade' is an object and purpose of the WTO Agreement , generally, as 
well as of the GATT 1994."  (Appellate Body Report, EC – Computer Equipment , para. 82)   
456Appellate Body Report, Argentina – Textiles and Apparel , para. 47.  WT/DS269/AB/R 
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[t]aken together, the relevant aspects of the WTO Agreement and the GATT 1994 indicate that concessions made by WTO Members 
should be interpreted so as to further the general objective of the 
expansion of trade in goods and the substantial reduction of tariffs .  
... In other words, the terms of a concession should not be interpreted 
in such a way that would disrupt the balance of concessions negotiated by the parties.  Finally, the interpretation must ensure the security and predictability of the reciprocal and mutually 
advantageous arrangements manifested in the form of concessions.
457 
(emphasis added) 
242. The European Communities argues on appeal that the Panel erred in finding that "concessions 
made by WTO Members should be interpreted so as to further the general objective of the expansion 
of trade in goods and the substantial reduction of tariffs."458   
243. In our view, a careful reading of the phrasing u sed by the Panel reveals that it did not, as the 
European Communities asserts, develop an "interpret ative principle directing Panels to bias towards 
the reduction of tariff commitments".459  We note that, in the sente nce that followed, the Panel 
qualified the statement challenged by the Euro pean Communities by stating that "such an 
interpretation is limited by the condition that arrange ments entered into by Members be reciprocal and 
mutually advantageous."460  This sentence underscores the Panel' s view that trade liberalization is 
achieved through negotiations for mutual benefit.  In deed, the Panel concluded that its interpretation 
should be governed by the object and purpose of maintaining the security and predictability of 
reciprocal market access arrangements manifested in tariff conc essions, an objective endorsed by the 
European Communities.  Thus, we do not believe th at the Panel relied on trad e expansion and tariff 
reduction as an interpretative principle.  In f act, the Panel focused its "object and purpose" 
interpretation on the principles of security and pr edictability of tariff concessions.  Moreover, we 
agree with the Panel that "the security and predictabi lity of 'the reciprocal and mutually advantageous 
arrangements directed to the substan tial reduction of tariffs and other barriers to trade' is an object and 
purpose of the WTO Agreement, generally, as well as of the GATT 1994."461   
                                                      
457Panel Reports, para. 7.320. 
458Ibid. (quoted in European Communities' appellant's submission, para. 183). 
459European Communities' appellant's submission, para. 189.   
460Panel Reports, para. 7.320.  
461Ibid., para. 7.318 (quoting Appellate Body Report, EC – Computer Equipment,  para. 82).  We note 
that "security and predictability" is also  mentioned in Article 3.2 of the DSU. WT/DS269/AB/R 
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C. Does a Criterion of "Preservation" Undermine the Security and Predictability of 
Tariff Concessions? 
244. In addition, the European Communities appeals the Panel finding that: 
... the lack of certainty associated w ith the application of the criterion 
of long-term preservation with respect to the concession contained in heading 02.10 of the EC Schedule ... could undermine the object and 
purpose of security and predictability [of the reciprocal and mutually 
advantageous arrangements [that] mu st be preserved], which lie[] at 
the heart of the WTO Agreement and the GATT 1994.
462 
245. The European Communities contends that the Panel misrepresented the criterion of 
preservation, because EC Regulation 1223/2002 and EC Decision 2003/97/EC do not, in fact, apply a 
"criterion of long-term preservation" but, instead, tr eat chicken cuts with a salt content of up to 
3 per cent as falling under heading 02.07 rather than heading 02.10.463   
246. We agree with the Panel that, in characterizing a product for purposes of tariff classification, 
it is necessary to look exclusively at the "objective characteristics" of the product in question when 
presented for classification at the border.464  At the same time, we note that the European 
Communities provides examples indicating that pr oduct descriptions including a criterion of 
"preservation" may qualify as "objective characteristics" under the Harmonized System.465  T h e  
European Communities considers that, accordingly, the criterion of preservation is not intrinsically 
uncertain, given its use in other parts of the Harmonized System.466  In this sense, we consider that the 
Harmonized System does not preclude the use of a crite rion of preservation, as such, provided that the 
conditions mentioned in paragraph 230  above are met.  Therefore, the application of such a criterion 
would not necessarily be in conflict with the ob jectives of security and predictability of the WTO 
Agreement   and the GATT 1994 (including Schedules of tariff commitments).   
                                                      
462Panel Reports, para. 7.323. 
463These measures are considered to be justified by the European Communities on the basis that the 
term "salted" in heading 02.10 should be read to contain a criterion of pr eservation, which the products at issue 
do not meet. (European Communities' appellant's submission, paras. 190-211) 
464Panel Reports, para. 7.321. 
465For example, the Harmonized System heading 05.10 mentions "[a]mbergris  ...  otherwise 
provisionally  preserved";  heading 08.14 concerns "[p]eel of citrus ... provisionally preserved";  heading 07.11 
concerns "[v]egetables provisionally  preserved";  and General Rule 5(a) refers to "[c]amera cases, suitable for 
long-term use". (European Communities' appellant's submission, para. 201) (emphasis added) 
466Ibid., paras. 201-202.  WT/DS269/AB/R 
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247. Turning to the facts of this case, we reca ll the Panel's statement that the European 
Communities had never explained what it meant ex actly, for purposes of heading 02.10, by "'long-
term preservation' in practice".467  The Panel was satisfied that it could be ascertained through 
laboratory analyses whether a salted and frozen  product was preserved for the long-term.468  However, 
it was unclear to the Panel whether preservation for th e long-term had to be the result of salting, or 
freezing, or a combination of the two.469  The European Communities submits on appeal that there are 
no such practical problems, either with respect to the products at issue (which have not been claimed 
to be preserved) or for a customs official with access to tools of analysis and for whom the  
highly traditional products under heading 02.10 are recognizable and familiar.470  According to the 
European Communities, if a product has been "f rozen" within the meaning of heading 02.07,  
it will still be classified under heading 02.10 of the EC Schedule as a "salted" product, provided  
that the salting ensures "preservation" within the meaning of EC Regul ation 1223/2002 and  
EC Decision 2003/97/EC.471   
248. Although the European Communities clarifies that, for purposes of heading 02.10 of the  
EC Schedule, preservation has to be the result of th e processes mentioned in that heading and not of 
the processes listed under heading 02.07 (namely,  chilling, freezing), it does not explain how, in 
respect of frozen and salted meat, the preservation effect of the processes listed in heading 02.10 
could be distinguished from the processes listed in heading 02.07.472   Therefore, we share the Panel's 
concern about the lack of certainty in the application of the preservation criterion used by the European Communities regarding the tariff commit ment under heading 02.10 of the EC Schedule. 
249. In the light of these considerations, we see no reason to disturb the Panel's finding, in 
paragraph 7.328 of the Pane l Reports, that "the lack of certainty associated with the application of the 
criterion of long-term preservation with respect to  the concession contained in heading 02.10 of the 
EC Schedule ... could undermine the object and purpose of security and predictability, which 
[underlie] both the WTO Agreement and the GATT 1994." 
                                                     
 
467Panel Reports, para. 7.322.   
468The European Communities indicated to the Panel that it conducts laboratory analyses when 
necessary. ( Ibid., footnote 534 to para. 7.321)  See also Exhib it THA-23 submitted by Thailand to the Panel.  
The WCO also considered that laboratory analyses might be required to determine whether a product can be 
regarded as "salted" within the meaning of heading 02.10 of the Harmonized System. (Panel Reports, para. 7.321) 
469Ibid., para. 7.322. 
470European Communities' appellant's submission, paras. 203-208. 
471Panel Reports, para. 7.322. 
472European Communities' response to questioning at the oral hearing. WT/DS269/AB/R 
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D. Was Heading 02.10 Intended to Cover Frozen (Salted) Poultry Meat? 
250. Finally, the European Communities submits that the Panel ignored its argument that 
heading 02.10 did not have the object and purpose,  when negotiated, of securing market access 
arrangements on frozen salted poultry meat.
473  In this respect, the Panel ruled that it was not 
authorized "to consider the European Communitie s' unilateral object and purpose when it concluded 
its Schedule in interpreting the concession cont ained in heading 02.10 of the EC Schedule".474  We 
agree with the Panel that a treaty interpreter must ascertain the common inten tions of the parties and 
that these " common  intentions cannot be ascertained on the basis of the subjective and unilaterally 
determined 'expectations' of one of the parties to a treaty."475  In our view, the European Communities' 
argument pertains to the " subjective  views as to what [was] the agreement reached during tariff 
negotiations"476, because we see no indication in the Panel record showing that it was a "commonly 
shared view" of the parties to exclude frozen (sa lted) poultry meat from the product scope covered by 
heading 02.10 of the EC Schedule.  Consequently, we  find the Panel made no error in this regard.   
X. Subsequent Practice 
251. The European Communities appeals the Panel' s finding that the European Communities' 
practice, between 1996 and 2002, of classifying th e products at issue under heading 02.10 of the 
EC Schedule amounts to "subsequent practice" w ithin the meaning of Article 31(3)(b) of the Vienna 
Convention477, which provides: 
3. There shall be taken into account, together with the context: 
... 
 (b)  any subsequent practice in the application of the 
treaty which establishes the agreement of the parties regarding its interpretation[.] 
                                                     
 
473According to the European Communities, heading 02.10 was not intended to provide a means of 
circumventing the tariff protection agreed under headin g 02.07. (European Communities' appellant's submission, 
paras. 212-218)   
474Panel Reports, para. 7.327. 
475Appellate Body Report, EC – Computer Equipment , para. 84. (original emphasis)  
476Ibid., para. 82. (original emphasis)   
477Panel Reports, paras. 7.289 and 7.303.  WT/DS269/AB/R 
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252. In reaching its conclusion, the Panel found it "reasonable to rely upon EC classification 
practice alone  in determining whether or not there is 'subsequent practice' that 'establishes the 
agreement' of WTO Members  within the meaning of Article 31(3)(b)".478  For the Panel, it made 
"practical sense" that the classification practice of the importing Member "whose schedule is being interpreted" is important, because WTO Schedules are "particular to each WTO Member".
479  T h e  
Panel found "a reasonable indi cation of consistent practice"480 by the European Communities, 
between 1996 and 2002481, of classifying imports of the products at issue under heading 02.10.  In 
addition, the Panel examined evidence of classifica tion practice regarding imports into and exports 
from Brazil and Thailand, and imports  into and exports from the third parties, namely, China and the 
United States, but found this classification prac tice "inconsistent" or of "limited usefulness".482   
253. The European Communities contests the Panel's in terpretation of the concept of "subsequent 
practice" under Article 31(3)(b).  The European Co mmunities argues that the subsequent practice of 
one party alone cannot determine the interpretation of a treaty, and that the Panel erred in its analysis 
of whether there was consistent practice at th e level of the European Communities and at the 
multilateral level.483  Brazil and Thailand contend that, becau se the EC Schedule is at issue in this 
case, it is the European Communities' practice that is  relevant for the identification of "subsequent 
practice" within the meaning of Article 31(3)(b).484  Brazil and Thailand thus request that we uphold 
the Panel's finding that the European Communities'  consistent practice, between 1996 and 2002, of 
classifying the products at issue under heading 02.1 0 of the EC Schedule "amounts to subsequent 
practice" within the meaning of Article 31(3)(b) of the Vienna Convention . 
254. This issue raises the following questions:  (i) wh at may qualify as "practice"?  (ii) how does 
one establish the agreement of the parties who have no t engaged in the practice at issue?  and (iii) was 
there "consistency" of relevant practice by th e European Communities and other WTO Members?  
                                                      
478Panel Reports, para. 7.289. (emphasis added) 
479Ibid., paras. 7.253-7.254. 
480Ibid., para. 7.267. (original emphasis omitted) 
481EC Regulation 1223/2002, the first of the challenged measures, entered into force in 2002. 
482Panel Reports, paras. 7.284 and 7.288-7.289.  The Panel also considered WCO letters of advice from 
1997 and 2003 and subsequent Explanatory Notes to the European Communities' Combined Nomenclature.  
(Ibid., paras. 7.298-7.299 and 7.302) 
483European Communities' appellant's submission, para. 116. 
484Brazil's appellee's submission, para. 123; Thailand's appellee's submission, paras. 59 and 67. WT/DS269/AB/R 
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A. What May Qualify as Practice? 
255. At the outset, we observe that "subsequent practice" in the application of a treaty may be an 
important element in treaty interpretation b ecause "it constitutes objective evidence of the 
understanding of the parties as to the meaning of the treaty".
485   
256. The Appellate Body found, in Japan – Alcoholic Beverages II , that "subsequent practice" 
within the meaning of Article 31(3)(b) entails a: 
... "concordant, common and cons istent" sequence of acts or 
pronouncements which is sufficient to establish a discernible pattern implying the agreement of the parties [to a treaty] regarding its 
interpretation.
486   
257. In  US – Gambling , the Appellate Body clarified that establishing "subsequent practice" 
within the meaning of Article 31(3)(b) involves two elements: 
... (i) there must be a common, consistent, discernible pattern of acts 
or pronouncements;  and (ii) those acts or pronouncements must 
imply agreement  on the interpretation of the relevant provision.487 
(original emphasis) 
258. The Panel considered that the main question in the case at hand was whether "common" and 
"concordant" practice "necessarily means that all WTO Members must have engaged in a particular practice in order for it to qualify as 'subsequent prac tice' ... or whether the practice of a sub-set of the 
entire WTO-membership, including the practice of one Member only, may suffice."
488  The Panel 
noted that the International Law Commission ("ILC") had stated that: 
The [original text of Article 31(3)(b) of the Vienna Convention ] 
spoke of a practice which "establishes the understanding of all the parties".  By omitting the word "all" [in the final text], the Commission did not intend to change the rule.  It considered that the 
phrase "the understanding of the parties" necessarily means the 
"parties as a whole".  It omitted the word "all" merely to avoid any possible misconception that every party must individually have 
engaged in the practice where it suffic es that it should have accepted 
the practice .
489 (emphasis added) 
                                                      
485Yearbook of the International Law Commission , supra , footnote 69, p. 219, para. (6). 
486Appellate Body Report, Japan – Alcoholic Beverages II , p. 13, DSR 1996:1, 97, at 106;  Panel 
Reports, para. 7.250. 
487Appellate Body Report, US – Gambling , para. 192. 
488Panel Reports, para. 7.251. (footnote omitted) 
489Ibid., para. 7.252 (quoting Yearbook of the International Law Commission , supra , footnote 69, 
p. 222, para. 15).  WT/DS269/AB/R 
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The Panel inferred from this statement that "it is not necessary to show that  all  signatories to a treaty 
must have engaged in a particular practice in order for it to qualify as subsequent practice under 
Article 31(3)(b)".490  Rather, "it may be sufficient to show that all parties to the treaty have accepted 
the relevant practice."491 
259. We share the Panel's view that not each and ev ery party must have engaged in a particular 
practice for it to qualify as a "common" and "concor dant" practice.  Nevertheless, practice by some, 
but  not all  parties is obviously not of the same order as practice by only one, or very few parties.  To 
our mind, it would be difficult to establish a "c oncordant, common and discernible pattern" on the 
basis of acts or pronouncements of one, or very few parties to a multilateral treaty, such as the WTO 
Agreement .  We acknowledge, however, that, if only so me WTO Members have actually traded or 
classified products under a given heading, this circ umstance may reduce the avai lability of such "acts 
and pronouncements" for purposes of determining the existence of "subsequent practice" within the 
meaning of Article 31(3)(b). 
260. We turn next to the question of whose prac tice is relevant to establish agreement on the 
interpretation of the relevant provision.  For the Panel, the classification practice of the importing 
Member "whose Schedule is being interpreted" is  critical for purposes of establishing "subsequent 
practice" regarding a tariff concession, because WTO Schedules are "particular to each WTO 
Member".492  Moreover, the European Communities was the only Member that actually imported the 
products covered by the measures challenged in this case.493  Therefore, the Panel found it "reasonable 
[in this case] to rely upon EC classification practi ce alone in determining whether or not there is 
'subsequent practice' that 'establishes the agre ement' of WTO Members within the meaning of 
Article 31(3)(b)".494   
261. On appeal, the European Commun ities argues that the subsequent practice of one party alone 
cannot determine the interpretation of a treaty495, and that, therefore, exclusive reliance on the 
classification practice of the Member whose Schedule is at issue is not justified.  This is particularly 
so, according to the European Co mmunities, when there is no reason to believe that the Schedule 
departs from the Harmonized System, which is used by all Members in their agricultural Schedules.496  
                                                      
490Panel Reports, para. 7.253. (emphasis added)   
491Ibid., para. 7.253. 
492Ibid., paras. 7.253-7.254. 
493Ibid., para. 7.255. 
494Ibid., paras. 7.255 and 7.289. 
495European Communities' appellant's submission, para. 118. 
496Ibid., para. 134. WT/DS269/AB/R 
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Brazil and Thailand submit that a tariff concession "b rings about an obligation (and is binding) only 
with respect to the conceding Member [and that this] is quite different from other WTO obligations 
that bind all Members."
497  Brazil and Thailand therefore contend that the fact that the EC Schedule is 
at issue in this case means that only the European Communities' classi fication practice is relevant for 
purposes of establishing subsequent practice in respect of that concession.498   
262. We agree with Brazil and Thailand that each WTO Member has its own individual Schedule 
of tariff concessions and that the tariff commitme nts bound for specific products in those Schedules 
vary between different WTO Members.  Nevertheless , it must be borne in mind that, during the course 
of the Uruguay Round, tariff commitments were negotiated on the basis of the Harmonized System.499  
As a result, Schedules of WTO Members other than  the European Communities also include tariff 
bindings under headings 02.07 and 02.10, which are based on the structure and description of the 
Harmonized System.  Therefore, although this dispute concerns the scope of a tariff commitment 
contained in the WTO Schedule specific to the Eu ropean Communities, the relevant headings are 
common to all WTO Members.   
263. Brazil further contends that, although WTO Sc hedules are based on the Harmonized System, 
they are not identical:  the Uruguay Round negotia tions used the Harmonized System as a starting 
point, but the end result of those negotiations did not need to be identical to it.500  In Brazil's view, 
when, by means of EC Regulation 535/94, the European Communities included Additional Note 7 to Chapter 2 of the European Communities' Combin ed Nomenclature, it announced to its negotiating 
partners in the Uruguay Round the definition and sc ope of its tariff conces sion under heading 02.10 of 
its Schedule.
501   
264. In our view, these arguments do not mean that the European Communities' WTO Schedule is 
as unique to the European Communities as Brazil and Thailand suggest.502  Having said that,  
EC Regulation 535/94 may be relevant as evidence of  what might have been agreed between WTO 
Members for the tariff commitment under headin g 02.10 of the European Communities' WTO 
                                                      
497Brazil's appellee's submission, para. 139.  See also Thailand's appellee's submission, paras. 75-84.   
498Brazil's appellee's submission, paras. 137-145;  Thailand's appellee's submission, paras. 75-84.   
499For agricultural products, Annex I of the  Agreement on Agriculture defines the product coverage of 
that Agreement on the basis of the Harmonized System.   
500Brazil's appellee's submission, para. 144.  
501Ibid., para. 142. 
502Ibid., para. 141;  Thailand's appellee's submission, para. 79.  WT/DS269/AB/R 
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Schedule, within the flexibility conferred by the Harmonized System.503  This, however, does not 
render the classification practice of other WTO Members in relation to heading 02.10,  per se , 
irrelevant. 
265. We acknowledge that we are concerned here w ith the interpretation of a tariff commitment 
contained in the WTO Schedule of the European Communities that, according to Article II:7 of the 
GATT 1994, forms an "integral part" of the WTO Agreement , as do all Members' WTO Schedules.  In 
EC – Computer Equipment , the Appellate Body found that:   
... the fact that Members' Schedules are an integral part of the GATT 
1994 indicates that, while each Sc hedule represents the tariff 
commitments made by one Member, they represent a common 
agreement among all  Members.504 (original emphasis) 
The Appellate Body also stated in that appeal that: 
The purpose of treaty interpretation is to establish the common  
intention of the parties to the treaty.  To establish this intention, the prior practice of only one of the parties may be relevant, but it is 
clearly of more limited value than the practice of all parties.  In the 
specific case of interpretation of a tariff concession in a Schedule, the 
classification practice of the importing Member, in fact, may be of great importance.  However, the Panel was mistaken in finding that the classification practice of the United States was not relevant.
505 
(original emphasis) 
266. The Appellate Body made these statements in th e context of an interpretation pursuant to 
Article 32 of the Vienna Convention , but, as the Panel put it, these statements "confirm[] the 
importance of the classification practice of the impor ting Member whose schedule is being interpreted 
[but] also indicate[] that the classification practice of other WTO Members, including the exporting Member's practice, may be relevant."
506  In our view, these statements cannot be read to justify 
exclusive reliance on the importing Member's classification practice.  Therefore, we fail to see how 
the Panel's finding that it was "reasonable to rely upon EC classification practice alone in determining 
whether or not there is 'subsequent practice' that 'establishes the agreement' of WTO Members within 
                                                      
503We return to this question later when interpreting heading 02.10 of the EC Schedule in the light of 
Article 32 of the Vienna Convention.  
504Appellate Body Report, EC – Computer Equipment , para. 109.  
505Ibid., para. 93. 
506Panel Reports, para. 7.254.  WT/DS269/AB/R 
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the meaning of Article 31(3)(b)" can be reconciled with these statements of the Appellate Body in  
EC – Computer Equipment .
507   
267. We now turn to another aspect of the Panel' s finding on subsequent practice, namely, what 
product range is relevant for purposes of establis hing "subsequent practice"  in this case.  The 
European Communities submits on appeal that the Pa nel should have analyzed practice relating to  
all salted products subject to heading 02.10, not just practice concerning frozen salted chicken cuts 
with a salt content of between 1.2 and 3 per cent (the "products at issue").  According to the European 
Communities, the Panel should also have examined the practice of classifying products containing salt 
under alternative headings of Chapter 2 and, particularly, heading 02.07.508  Brazil and Thailand 
contend that practice concerning the products at is sue alone is relevant for purposes of establishing 
"subsequent practice".509  Alternatively, Thailand points out that the Panel did consider practice 
relating to salted meat products classifiable under head ing 02.10 other than the "products at issue" to 
the extent that the European Comm unities complied with the Panel's requests for information, but that 
the Panel ultimately decided that this evidence was not persuasive.510 
268. We have already noted that this dispute concer ns the interpretation of the tariff commitment 
under heading 02.10 of the EC Schedule.  In particular , it is the interpretation of the term "salted" in 
heading 02.10 that is at the heart of this disput e.  Therefore, what is relevant for purposes of 
examining "subsequent practice" in this case is th e classification practice relating to the entire range 
of salted meat products classifiable under headi ng 02.10, and not only the classification practice 
relating to the subset of such products covered by the measures challenged in this dispute.  As the 
European Communities contends that the products at  issue in this case are properly classified under 
heading 02.07, practice of classifying products c ontaining salt under other headings of Chapter 2, 
especially heading 02.07, may also be relevant. 
269. In this regard, we note that the Panel refers in  its reasoning to classification practice under the 
"concession contained in heading 02.10"511 as well as to classification practice relating to the 
"products at issue".512  It is not clear from these statements wh ether the Panel considered relevant the 
classification practice in respect of the entire range of salted meat products classifiable under  heading 02.10, or only in respect of the products at  issue.  In any event, with the exception of a BTI 
                                                     
 
507Ibid., para. 7.289. 
508European Communities' response to questioning at the oral hearing.   
509Brazil's appellee's submission, para. 153;  Thailand's appellee's submission, para. 97. 
510Thailand's appellee's submission, para. 107. 
511Panel Reports, para. 7.268. 
512Ibid., paras. 7.265 and 7.269-7.276.  WT/DS269/AB/R 
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from Spain relating to dried and salted ham, the Pane l limited its analysis to the classification practice 
relating to salted chicken cuts with a salt content of between 1.2 and 3 per cent, the products covered 
by the measures it had determined to be within its te rms of reference.  However, it is undisputed that 
salted meat products other than chicken cuts with a sa lt content of 1.2 to 3 per cent are also subject to 
heading 02.10 of the EC Schedule.  The limitation in the Panel's terms of reference to measures 
covering the products at issue did not justify the Panel excluding the examination of the classification practice relating to other salted meat products classi fiable under heading 02.10 (or relevant alternative 
headings such as heading 02.07) in its analysis of "subsequent practice".   
270. In our view, as the Panel examined only a sub set of salted meat products classifiable under 
heading 02.10, and it did not examine classification pr actice with respect to a lternative headings such 
as heading 02.07, it could not draw valid conclusi ons as to the existence of "subsequent practice" 
establishing the agreement of the parties within the meaning of Article 31(3)(b) with respect to all 
salted meat products potentially covered by th e tariff commitment under heading 02.10 of the 
EC Schedule. 
B. How Does One Establish Agreement of Parties that Have Not Engaged in a Practice? 
271. We recall that, under Article 31(3)(b), agreement of the parties regarding interpretation of a 
treaty term must be established.  This raises the question how to establish agreement of those parties 
that have not engaged in a practice.  According to the Panel, acceptance "deduced from a party's 
reaction or lack of reaction to the practice" of a nother Member is sufficient to establish the agreement 
of treaty parties regarding the interpretation of a provision.
513  The Panel held that, as other WTO 
Members did not "protest" against the European  Communities' classification practice from 1996 to 
2002—whereby the products at issue were classified  under heading 02.10—they can be presumed to 
have accepted it.514 
272. We agree with the Panel that, in general, agreement may be deduced from the affirmative 
reaction of a treaty party.  However, we have misgivings about deducing, without further inquiry , 
agreement with a practice from a party's "lack of reaction".  We do not exclude that, in specific situations, the "lack of reaction" or silence by a pa rticular treaty party may, in the light of attendant 
                                                     
 
513Panel Reports, footnote 396 to para. 7.253.  Here, the Panel relied on Yasseen's statement that:  
"acceptance by a party may be 'deduced from that party's reaction or lack of  reaction to the practice at issue'." 
(Yasseen, supra , footnote 70, p. 49, para. 18) 
514Panel Reports, para. 7.255. WT/DS269/AB/R 
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circumstances, be understood as acceptance of the practice of other treaty parties.
515  Such situations 
may occur when a party that has not engaged in a practice has become or has been made aware of the 
practice of other parties (for example, by means of no tification or by virtue of participation in a forum 
where it is discussed), but does not react to it.  Ho wever, we disagree with the Panel that "lack of 
protest" against one Member's classification prac tice by other WTO Members may be understood, on 
its own, as establishing agreement with that practice by those other Members.  Therefore, the fact that 
Brazil and Thailand, having actually exported the products at issue, may have accepted the European 
Communities' import classification practice under head ing 02.10, is not dispositive of whether other 
Members with actual or potential trade interests ha ve also accepted that practice.  We, therefore, 
disagree with the Panel that "subsequent practi ce" under Article 31(3)(b) has been established by 
virtue of the fact that the Panel "[had] not been  provided any evidence to indicate that WTO Members 
protested against the EC classification practice in question from 1996 - 2002".516   
                                                      
515"It is not necessary to show that each party has en gaged in a practice, only that all have accepted it, 
albeit tacitly." (A. Aust, Modern Treaty Law and Practice  (Cambridge University Press, 2000), p. 195)  See also 
D. Anzilotti, Corso di Diritto Internazionale  ["International Law Course"], Vol. 1, IV Edizione (CEDAM, 
1955), p. 292: 
These conclusive facts also include silence, the value of which, as a 
manifestation of will, obviously cannot be reduced to general rules, because 
such value depends on the factual circumstances in which the silence is observed ... It is easy, moreover, to e nvisage circumstances in which silence 
on the part of a State cannot be construed as anything but indifference or 
failure to express its will in any form:  The recently expre ssed view that, in 
international law, the principle of qui tacet consentire videtur  is entirely 
valid cannot be accepted in such general terms[.]. 
(Unofficial English translation from available French translation by G. Gidel, Cours de droit international , 
Vol. 1, III édition (Librairie du Recueil Sirey, 1929), p. 344); 
J.P. Cot, "La Conduite subséquente des Parties à un traité" ["Subsequent Conduct of the Parties to a Treaty"], in 
Revue Générale de Droit International Public  (1966), 3rd series, Vol. 37, p. 645: 
... the various facets of the subsequent conduct of the Parties in the law of 
treaties:  Where it is the subject of tacit agreement, subsequent conduct 
should undoubtedly be approved by all the Parties;  on the other hand, where 
it is merely indicative of the will of th e Parties, it may be accepted even if it 
stems from a single State.  Its probative value then depends on the 
circumstances of the case.  
(Unofficial English translation;  emphasis added); 
W. Karl, Vertrag und spätere Praxis im Völkerrecht  ["Treaty and Subsequent Practice in International Law"] 
(Springer Verlag, 1983), pp. 113 and 127;  and F. Capoto rti, "Sul Valore della Prassi Applicativa dei Trattati 
Secondo la Convenzione di Vienna" ["On the Value of Practice in the Application of Treaties under the Vienna 
Convention"], in Le Droit international à l'heure de sa codification , Studi in onore di Roberto Ago (Giuffré, 
1987), Vol. I, pp. 197. 
516Panel Reports, para. 7.255.  WT/DS269/AB/R 
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273. Finally, we recall that, according to the European Communities, Article IX:2 of the WTO 
Agreement517 suggests that "any practice relating to th e interpretation of the multilateral trade 
agreements and acceptance thereof mu st take the form of overt acts that are explicitly submitted for 
consideration of all WTO Members and adopted by a large majority of the WTO Membership."518  To 
our mind, the existence of Article IX:2 of the WTO Agreement is not dispositive for resolving the 
issue of how to establish the agreement by Members th at have not engaged in a practice.  We fail to 
see how the express authorization in the WTO Agreement  for Members to adopt interpretations of 
WTO provisions—which requires a three-quarter majo rity vote and not a unanimous decision—would 
impinge upon recourse to subsequent practice as a to ol of treaty interpretation under Article 31(3)(b) 
of the Vienna Convention .  In any case, we are mindful that the Appellate Body, in Japan – Alcoholic 
Beverages II , cautioned that relying on "subsequent practi ce" for purposes of interpretation must not 
lead to interference with the "exclusive authorit y" of the Ministerial Conference and the General 
Council to adopt interpretations of WTO ag reements that are binding on all Members.519  In our view, 
this confirms that "lack of reaction" should no t lightly, without further inquiry into attendant 
circumstances of a case, be read to imply agreement with an interpretation by treaty parties that have 
not themselves engaged in a particular practice foll owed by other parties in the application of the 
treaty.  This is all the more so because the in terpretation of a treaty provision on the basis of 
subsequent practice is binding on all parties to th e treaty, including those that have not actually 
engaged in such practice. 
C. Was there "Consistency" of Customs Cl assification Practice in this Case? 
274. Our next task is to consider the Panel's conc lusion that there was evidence of a "consistent, 
common and discernible pattern" of classification under heading 02.10 of the EC Schedule during the 
period 1996 to 2002.520  The Panel found "a reasonable indica tion of consistent practice" by the 
European Communities between 1996 and 2002 on the basis of the classification of imports of the 
products at issue under heading 02.10.521  In addition, the Panel exam ined evidence of classification 
practice regarding imports into and exports from Br azil and Thailand, and imports into and exports 
                                                      
517Article IX:2 of the WTO Agreement   gives the "Ministerial Conference and the General Council … 
the exclusive authority to adopt interpretations of [tha t] Agreement and of the Multilateral Trade Agreements". 
518European Communities' appellant's submission, para. 124. (original underlining omitted)   
519The fact that such "exclusive authority" to adopt inte rpretations of the treaty "has been established so 
specifically in the WTO Agreement " was one of the reasons for the Appellate Body to conclude, in  Japan – 
Alcoholic Beverages II , that "such authority does not exist by implication or by inadvertence elsewhere". 
(Appellate Body Report, Japan – Alcoholic Beverages II , p. 12, DSR 1996:I, 97, at 107)   
520Panel Reports, paras. 7.265 and 7.275. 
521Ibid., paras. 7.267 and 7.275. (original emphasis omitted) WT/DS269/AB/R 
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from the third parties, namely, China and the Unit ed States, but found that this evidence was of 
limited probative value.
522 
275. However, in view of the fact that we di sagreed above with several aspects of the 
interpretation and application by the Panel of the re quirements of Article 31(3)(b), we do not believe 
that it is necessary for us to exam ine whether there was "consistency"  of the European Communities' 
classification practice between 1996 and 2002 so as to  establish "subsequent practice" within the 
meaning of Article 31(3)(b).  Even if we were to  agree with the Panel that the European Communities 
consistently classified the "products at issue" unde r heading 02.10 of the EC Schedule, between 1996 
and 2002, this would not change our view with resp ect to the Panel's interpretation and application of 
Article 31(3)(b). 
D. Conclusion 
276. For the reasons set out above, we reverse the Panel's interpretation and application of the 
concept of "subsequent practice" within the meaning of Article 31(3)(b) of the Vienna Convention ;  
consequently, the Panel's conclusions , in paragraphs 7.289-7.290 and 7.303 of the Panel Reports, that 
the European Communities' practic e of classifying, between 1996 and 2002, the products at issue 
under heading 02.10 of the EC Schedule "amounts to subsequent practice" within the meaning of 
Article 31(3)(b) of the Vienna Convention  cannot stand. 
XI. Interpretation of the EC Schedule in the Light of Article 32 of the Vienna Convention  
A. Introduction 
277. After summarizing the "preliminary conclusions" of its interpretative analysis of the term 
"salted" in the tariff commitment under heading 02.10 of the EC Schedule in the light of Article 31 of 
the Vienna Convention 523, the Panel stated: 
... while the interpretation undertaken by the Panel pursuant to 
Article 31 of the Vienna Convention   suggests that the products at 
issue are covered by the concession contained in heading 02.10 of the 
EC Schedule, we turn to supplemen tary means of interpretation of 
the concession contained in heading 02.10 of the EC Schedule pursuant to Article 32 of the Vienna Convention  to seek confirmation 
that this is, in fact, the case.
524 
                                                      
522Panel Reports, paras. 7.284 and 7.288-7.289. 
523Ibid., para. 7.331. 
524Ibid., para. 7.332.  WT/DS269/AB/R 
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278. The Panel structured its analysis under Article 32 as follows.  It looked first at "preparatory 
works", and then continued with "circumstances of th e conclusion of the EC Schedule".  It interpreted 
the concept of "circumstances of [a treaty's] conclu sion" in respect of its substantive and temporal 
scope.  Having completed this gene ral interpretation of "circumsta nces", the Panel considered the 
relevance, for the interpretation of the term "salted"  in heading 02.10 in the EC Schedule, of certain 
legal instruments of the European Communities (specifically, EC Regulation 535/94, the Dinter  and 
Gausepohl  judgments525 of the ECJ, and the Explanatory and Additional Notes to the European 
Communities' customs legislation) and the classifi cation practice of the European Communities.  
279. The Panel concluded its analysis of "supplemen tary means" within the meaning of Article 32 
with the following finding: 
We considered EC Regulation No. 535/94, the Dinter  and Gausepohl  
ECJ judgements, EC Explanatory Notes, an EC Additional Note and classification practice prior to the conclusion of the EC Schedule.   In the Panel's view, the relevant aspects of the supplementary means 
of interpretation, most partic ularly, EC Regulation No. 535/94, 
indicate that meat that has been deeply and homogeneously 
impregnated with salt and has a minimum salt content of 1.2% by weight would qualify as "salted" meat under the concession contained in heading 02.10 of the EC Schedule.  Therefore, the Panel concludes that the supplementary me ans of interpretation considered 
under Article 32 of the Vienna Convention  confirm the preliminary 
conclusions we reached ... above following an analysis under Article 31 of the Vienna Convention .
526 
280. The European Communities appeals the Panel's interpretation of the term "salted" in 
heading 02.10 of the EC Schedule in the light of Article 32 of the Vienna Convention .  It challenges 
the Panel's interpretation of the concept of "circumsta nces of [a treaty's] conclusion" in Article 32  and 
the legal characterization of, in particul ar, EC Regulation 535/94 and the ECJ's Gausepohl judgment.  
The European Communities also clai ms that the Panel acted inconsistently with its obligations under 
Article 11 of the DSU, to the extent that the Pa nel's conclusions under Ar ticle 32 were "premised on 
an erroneous assessment of the facts".527  
                                                      
525ECJ Judgment, Dinter , supra  footnote 151;  ECJ Judgment, Gausepohl , supra , footnote 106. 
526Panel Reports, para. 7.423. 
527European Communities' Notice of Appeal (attached  as Annex I to this Report), para. 2(e). WT/DS269/AB/R 
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281. We recall that, above, we concluded that the te rm "salted" in heading 02.10, read in the 
context of the Harmonized System, does not contain a requirement that salting must, by itself, ensure 
"preservation".
528  At the same time, we have found that  the Harmonized System does not, as such, 
preclude the use of this criterion for purposes of cl assification and that Members have the flexibility 
to negotiate particular tariff commitments within the parameters required by the Harmonized System.  
The purpose of our analysis under Article 32 is, u ltimately, to ascertain whether WTO Members have 
agreed on the preservation criterion advanced by the European Communities with respect to the tariff 
commitment under heading 02.10 of the EC Schedule.  
B. The Concept of "Circumstances of the Conclusion of a Treaty" 
282. We begin our analysis by pointing out that th e means of interpretation listed in Article 32 529 
are supplementary means to be resorted to when interpretation in the light of Article 31 leaves the 
meaning of a treaty provision ambiguous or obscure , or, in order to confirm the meaning resulting 
from the application of the interpretation methods liste d in Article 31.  In this regard, we recall that 
the Appellate Body recognized in EC – Computer Equipment  that: 
... the classification practice in the European Communities during the 
Uruguay Round [was] part of 'the ci rcumstances of [the] conclusion' 
of the WTO Agreement  and may be used as a supplementary means 
of interpretation within the meaning of Article 32 of the Vienna 
Convention .530 
283. We stress, moreover, that Article 32 does not de fine exhaustively the supplementary means of 
interpretation to which an interpreter may have recourse.  It states only that they include  the 
preparatory work of the treaty and the circumstanc es of its conclusion.  Thus, an interpreter has a 
                                                      
528We noted that such criteria must either be specifically provided for in a tariff heading description, or 
be discernible from the structure of the Harmonized System (including the relevant Section, Chapter, 
Subheading or Explanatory Notes).  See supra , paras. 229-230. 
529Article 32 of the Vienna Convention provides that: 
Recourse may be had to supplementary means of interpretation, including 
the preparatory work of the treaty and th e circumstances of its conclusion, in 
order to confirm the meaning resulting from the application of article 31, or 
to determine the meaning when the interpretation according to article 31: 
(a) leaves the meaning ambiguous or obscure;  or (b) leads to a result which is ma nifestly absurd or unreasonable. 
530Appellate Body Report, EC – Computer Equipment , para. 92.   WT/DS269/AB/R 
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certain flexibility in considering relevant supplemen tary means in a given case so as to assist in 
ascertaining the common intentions of the parties.531 
284. The Panel interpreted the term "salted" in the tariff commitment under heading 02.10 of the 
EC Schedule in the light of the circumstances of the conclusion of the WTO Agreement , noting that 
these circumstances "may provide insights into the historical background against which the 
EC Schedule was negotiated".532  The Appellate Body expressed a similar view in  EC – Computer 
Equipment :   
With regard to "the circumstances of [the] conclusion" of a treaty, 
this permits, in appropriate cases, the examination of the historical 
background against which the treaty was negotiated.533 
285. The Panel considered as "circumstances of conc lusion" in this case the "historical background 
compris[ing] the collection of events, acts and ot her instruments that ch aracterize the prevailing 
situation in the European Communities"534 at the time the tariff commitment under heading 02.10 of 
the EC Schedule was negotiated.  Accordingly, the Panel decided to "consider EC law and the EC's 
classification practice during the Uruguay Round negotiati ons to the extent that they are relevant to 
the conclusion of the EC Schedule pursuant to Article 32".535     
                                                      
531We agree with Yasseen who says: 
Let us not forget that the list of supplementary means of interpretation 
contained in Article 32 of the Vienna Convention is not exhaustive.  If the 
circumstances in which the treaty was concluded are expressly mentioned, it 
is to underline their importance in the elaboration of the Treaty, and not to 
exclude the possibility of wider-ranging and more thorough historical 
research into a period preceding that of the conclusion of the treaty[.] 
(Yasseen, supra , footnote 70, p. 92, paras. 10-11 (quoted in Panel Reports, footnote 570 to para. 7.342)) 
532Panel Reports, para. 7.340.  The Panel relied upo n Yasseen, who states that the circumstances of 
conclusion are "the historical background that comprises the collection of events which led the parties to 
conclude the treaty  in order to maintain or confirm the status quo, or to bring about an alteration made necessary 
by a new situation." (Yasseen, supra , footnote 70, p. 90, paras. 3-4 (quoted in Panel Reports, footnote 568 to 
para. 7.340)) (emphasis added)   
533Appellate Body Report, EC – Computer Equipment,  para. 86 (referring, in footnote 65, to a 
statement of Sinclair, on which the Panel also relied). For Sinclair, the reference in Article 32 to "circumstances 
of the conclusion of a treaty" suggests that the interpreter should "bear constantly in mind the historical background against which the treaty has been negotiated." (Sinclair, supra , footnote 36, p. 141) 
534Panel Reports, para. 7.340. (footnote omitted) 
535Ibid., para. 7.347.  Specifically, the Panel examined EC Regulation 535/94, the ECJ's Dinter  and 
Gausepohl  judgments, Explanatory and Additional Notes to the European Communities' customs legislation, 
and the classification practice of the European Communities prior to 1994. WT/DS269/AB/R 
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286. The European Communities challenges the Pane l's analysis under Article 32 on various 
grounds.  We discuss first the European Commun ities' arguments with respect to the Panel's 
interpretation of the concept of "circumsta nces of the conclusion of the treaty".   
1. The Concept of "Circumstances"
 
287. According to the European Communities, the con cept of "circumstances" must be interpreted 
narrowly.  Circumstances must have directly influe nced the common intention of all the parties to the 
treaty.  A very high degree of consistency and stri ct conditions as to duration are required for prior 
practice to be established.  WTO jurisprudence shows that a "circumstance" in the form of a condition 
relating to a negotiating party must have been an ob jective fact, evident to all the negotiators at the 
time.  There must be a direct and genuine link between the relevant circumstances and the common 
intentions of the parties;  mere "c onstructive knowledge" is not sufficient.536   
288. We turn first to the European Communities' argument that, for an "event, act or instrument" to 
qualify as a "circumstance of the conclusion of a treaty", it "must have directly influenced the 
common intentions of parties, that is, all parties to a treaty"537 when they "were actually drafting the 
text".538  According to the Europ ean Communities, in the absen ce of such a "direct link"539, any event, 
act, or instrument does not amount to a "circumsta nce" within the meaning of Article 32.  The 
European Communities relies on the opinion of Yasseen who, in his work, L'interprétation des 
Traités d'après la Convention de Vi enne sur le Droit des Traités , defines "circumstances of 
conclusion" as the historical background that "comprises the collection of events which led the  
parties to conclude the treaty   in order to maintain or confirm the status quo, or to bring about an 
alteration made necessary by a new situation".540  The European Commun ities infers from this 
statement that something that has not directly in fluenced the conclusion of the treaty cannot be a 
"circumstance" of conclusion;  nor does something that has not influenced all  the parties to the treaty 
qualify as such a "circumstance".  The European Communities also relies on the Appellate Body's 
statement in  EC – Computer Equipment  that "the purpose of treaty interpretation is to establish the 
                                                      
536European Communities' appellant's submission, executive summary, para. 34. 
537European Communities' appellant's submission, para. 229. 
538Ibid., para. 253. 
539Ibid., para. 228. 
540Yasseen, supra , footnote 70, p. 48, para. 16. (emphasis added)  Yasseen also wrote that treaties "are 
the consequence of a series of causes."  It is, therefor e, useful to know the "conditions of the parties and the 
reality of the situation that the parties wished to resolv e, the importance of the proble m they wanted to settle and 
the scope of the dispute they wanted to terminate through the Treaty being interpreted." ( Ibid., p. 90, paras. 3-4)  WT/DS269/AB/R 
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common intentions of the parties" in support of its position that a circumstance must have directly 
influenced the common intentions of the parties.541 
289. Although we do not disagree with the general proposition by Yasseen, we do not agree with 
the European Communities that a "d irect link" to the treaty text and "direct influence" on the common 
intentions must be shown for an event, act, or  instrument to qualify as a "circumstance of the 
conclusion" of a treaty under Article 32 of the Vienna Convention .  An "event, act or instrument" may 
be relevant as supplementary means of interpretatio n not only if it has actually influenced a specific 
aspect of the treaty text in the sense of a relationship of cause and effect;  it may also qualify as a 
"circumstance of the conclusion" when it helps to discern what the common intentions of the parties 
were at the time of the conclusion with respect to  the treaty or specific provision.  Moreover, the 
European Communities has taken the Appellate Body statement out of context;  the Appellate Body 
was speaking of the sum or end-result of treaty interpretation;  it should not be misconstrued as 
introducing a concept that an act, event, or inst rument qualifies as a circumstance only when it has 
influenced the intent of all the parties.  Thus, not only "multilateral" sources, but also "unilateral" acts, 
instruments, or statements of individual negotiating parties may be useful in ascertaining "the reality 
of the situation which the parties wished to regul ate by means of the treaty" and, ultimately, for 
discerning the common intentions of the parties.542   
2. Relevance of Circumstances for Interpretation  
290. We agree with the Panel that "relevance", as opposed to "direct influence" or "[genuine] 
"link", is the "more appropriate criterion" to judge th e extent to which a particular event, act, or other 
instrument should be relied upon or taken into accoun t when interpreting a treaty provision in the light 
of the "circumstances of its conclusion".543  As to how such relevance should be demonstrated, the 
Panel said that "it must be shown that the event, act  or other instrument has or could have influenced 
the specific aspects of the ultimate te xt of a treaty that are in issue."544  The European Communities 
                                                      
541Appellate Body Report, EC – Computer Equipment , para. 93. 
542Sinclair, supra , footnote 36, p. 141.  Sinclair adds that it may also be necessary to take into account 
"the individual attitudes of the parties—their economic, political and social conditions, their adherence to certain 
groupings or their status, for example, as importing or exporting country in the particular case of a commodity 
agreement—in seeking to determine the reality of the situation which the parties wished to regulate by means of 
the treaty." ( Ibid.) 
543Panel Reports, paras. 7.343-7.344. 
544Ibid., para. 7.343. (footnote omitted) WT/DS269/AB/R 
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submits that the relevance of a circumstance should not be ascertained on the basis of whether it could 
have influenced the ultimate treaty text but,  rather, on the basis of "objective facts".
545   
291. In our view, the relevance of a circumstance for interpretation should be determined on the 
basis of objective factors, and not subjective intent.  We can conceive of a number of objective factors that may be useful in determining the degree of re levance of particular circumstances for interpreting 
a specific treaty provision.  These include the type of event, document, or instrument and its legal 
nature;  temporal relation of the circumstance to the conclusion of the treaty
546;  actual knowledge or 
mere access to a published act or instrument;  subject  matter of the document, instrument, or event in 
relation to the treaty provision to be interpreted;  and whether or how it was used or influenced the 
negotiations of the treaty. 
3. "Circumstances " at What Time?  
292. As regards the temporal correlation between an event, act, or instrument and the conclusion of 
the treaty, the Panel stated that: 
... there is not necessarily a single point in time when the 
"circumstances of conclusion" should be ascertained.  Rather, we 
consider that it relates to a period starting some time prior to the conclusion of the treaty in question and ending at the point of conclusion.
547 (footnote omitted) 
293. According to the European Communities, the Pa nel's recognition that an interpreter should 
ascertain the "circumstances of conclusion", not at a single point in time but, rather, over a certain period, "sits uncomfortably" with the Panel's ob servation that the date of conclusion of the 
                                                     
 
545European Communities appellant's submission, para. 253. 
546We note that the term "conclusion" has a temporal connotation that may give contextual guidance for 
interpreting the relevance of "circumstances". (See infra , para. 293) 
547Panel Reports, para. 7.342.  The Panel relied upon Yasseen, who defined the "circumstances of  
[a treaty's] conclusion" as:   
... the circumstances of a certain period in time, that is to say the period 
during which the treaty was concluded.  But does this mean that the possibility of historical research into an earlier period must be ruled out?  
We think not.  Indeed, it is useful, and sometimes even necessary, to carry 
out such research in order to acquire a better understanding of the actual circumstances in which the treaty was concluded.  In any case, an overall 
examination of the treaty's historical background may be considered as a 
supplementary means of interpretation, given the series of events leading to its conclusion.  
(Yasseen, supra , footnote 70, p. 92, paras. 10-11 (quoted in Panel Reports, footnote 570 to para. 7.342)  WT/DS269/AB/R 
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WTO Agreement   is 15 April 1994.548  We disagree with the Eur opean Communities, because the 
precise date of conclusion  of a treaty should not be confused with the circumstances  that were 
prevailing at that point in time.  Events, acts, and instruments may form part of the "historical 
background against which the treaty was negotiate d", even when these circumstances predate the 
point in time when the treaty is concluded, but cont inue to influence or reflect the common intentions 
of the parties at the time of conclusion.  We also agree with the Panel that there is "some correlation 
between the timing of an event, act or other in strument ... and their relevance to the treaty in 
question"549, in the sense that "the further back in time that an event, act or other instrument took 
place, was enacted or was adopted relative to the conc lusion of a treaty", the less relevant it will be for 
interpreting the treaty in question.550  What should be considered "temporally proximate will vary 
from treaty provision to treaty provision" and may depend on the structure of the negotiating 
process.551  Accordingly, we see no error in the Pane l's finding that the circumstances of the 
conclusion should be ascertained over a period of tim e ending on the date of the conclusion of the 
WTO Agreement.  
4. What Kind of Knowledge is Required?  
294. The European Communities also contests the Panel's "doctrine of 'constructive knowledge', 
whereby all negotiating parties were deemed to have knowledge of a particular event, act or 
instrument through publication".552  The Panel considered "wheth er knowledge on the part of all 
parties of an event, act or other instrument is n ecessary in order for [it] to qualify as 'circumstances of 
conclusion' under Article 32".553  The Panel found that actual knowledge was not necessary, provided 
that: 
                                                      
548European Communities, appellant's submission, para. 245. 
549Panel Reports, para. 7.344.  We recall, in this vein, that the panel and the Appellate Body in  
EC – Computer Equipment   examined customs classification pr actice during the Uruguay Round when 
interpreting the relevant part of the EC Schedule. (Appellate Body Report, EC – Computer Equipment, para. 93)  
In considering "supplementary means of interpretation" in Canada – Dairy , the Appellate Body observed that 
the terms and conditions at issue "were incorporated in to Canada's Schedule after lengthy negotiations" between 
Canada and the United Sates regarding "reciprocal mark et access opportunities for dairy products". (Appellate 
Body Report, Canada – Dairy , para. 139)  The Appellate Body also recognized in US – Gambling   that certain 
Scheduling Guidelines "were drafted in pa rallel with the GATS itself" and, in that sense, could be considered to 
have been "drawn up on the occasion of the conc lusion of the treaty". (Appellate Body Report, US – Gambling , 
footnote 244 to para. 196)   
550Panel Reports, para. 7.344.  See also Appellate Body Report, Chile – Price Band System , footnote 
206 to para. 230. 
551Panel Reports, para. 7.344. 
552European Communities' appellant's submission, para. 254. 
553Panel Reports, para. 7.346. WT/DS269/AB/R 
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... [when] parties have deemed notice of a particular event, act or instrument through publication, they  may be considered to have had  
constructive knowledge and that such knowledge suffices for the 
purposes of Article 32 of the Vienna Convention .
554 (emphasis added;  
footnote omitted) 
295. In the European Communities' view, "deemed knowledge" or publication is not sufficient for 
purposes of Article 32;  a "circumstance" must be an  "objective fact, evident to  all negotiators at the 
time".555  The European Communities argues that "the  Panel's notion of de emed knowledge on the 
basis of general 'access' cannot substitute the need to demonstrate a direct link between a 
circumstance and the common intentions of the parties."556 
296. The Panel turned, as support for the concept of  "constructive knowledge" of circumstances of 
conclusion, to a statement made by Sir Iain Sinclair in his work, The Vienna Convention on the Law 
of Treaties , in relation to "preparatory works".557  This statement expresses concerns about "the unity 
of a multilateral treaty" if "differe nt methods of interpretation [w]oul d be employed, the one for States 
who participated in the travaux préparatoires  and the other for States who did not so participate" and 
acceded later on.558  The Panel saw "no reason why these comments would not be equally applicable 
with respect to 'circumstances of conclusion' under Article 32 of the Vienna Convention ."559  We are 
not so convinced that the remarks on the knowledge of preparatory works by States not participating 
in negotiations are applicable to the "circumstances of conclusion" which we are dealing with here.   
                                                      
554Panel Reports, para. 7.346. 
555European Communities' appellant's submission, para. 252. 
556Ibid., para. 262. 
557Sinclair stated that:   
[R]ecourse to travaux préparatoires  does not depend on the participation in 
the drafting of the text of the State ag ainst whom the travaux are invoked.  
To hold otherwise would disrupt the unity of a multilateral treaty, since it 
would imply that two different methods of interpretation should be 
employed, the one for States  who participated in the travaux prèparatoires  
and the other for States who did not so participate.  One qualification 
should, however, be made.  The travaux préparatoires  should be in the 
public domain so that States which have not participated in the drafting of 
the text should have the possibility of consulting them. Travaux 
préparatoires  which are kept secret by negotiating States should not be 
capable of being invoked against subsequently acceding States.   
(Sinclair, supra , footnote 36, p. 144 (quoted in Panel Reports, footnote 574 to para. 7.346)) 
558Ibid. 
559Panel Reports, footnote 574 to para. 7.346.  WT/DS269/AB/R 
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297. We understand the Panel's notion of "construc tive knowledge" to mean that "parties have 
deemed notice of a particular event, act or instrument through publication".560  We note the European 
Communities' view that "deemed knowledge" on the b asis of general "access" to a publication cannot 
substitute the need for demonstrating a direct link between a circumstance and the common intentions 
of the parties.561  However, we consider that the Eur opean Communities conflates the preliminary 
question of what may qualify as a "circumstance" of a treaty's conclusion with the separate question of ascertaining the degree of relevance that may be  ascribed to a given circumstance, for purposes of 
interpretation under Article 32.  As  far as an act or instrument originating from an individual party 
may be considered to be a circumstance under Artic le 32 for ascertaining the parties' intentions, we 
consider that the fact that this act or instrume nt was officially published, and has been publicly 
available so that any interested party could have acquired knowledge of it, appears to be enough.  Of 
course, proof of actual knowledge will increase th e degree of relevance of a circumstance for 
interpretation.   
5. Whose Acts or Instruments May Qualify as "Circumstances"?
 
298. In addition, the European Communities criticizes th e Panel for failing to take into account the 
"internationally prevailing situation" and the pr actice of other Members, specifically, the United 
States.562 
299. As noted above, the Panel understood the "cir cumstances of conclusion" as the "historical 
background" comprising "the collection of events, acts and other instruments" against which the treaty 
was negotiated.  The Panel found that the "historical  background" against which heading 02.10 of the 
EC Schedule was negotiated was the "events, acts  and other instruments" that characterize the 
"prevailing situation in the European Communities".563  However, the Panel also referred in this 
respect to the Appellate Body's guidance in EC – Computer Equipment  that "it is most useful to 
examine the classification practice of all WTO Members".564  I n   EC – Computer Equipment , the 
Appellate Body emphasized that, "while each Sche dule represents the tariff commitments made by 
                                                      
560Panel Reports, para. 7.346. 
561European Communities' appellant's submission, para. 262. 
562The European Communities refers to a ruling of United States' customs authorities of November 
1993 dealing with fresh and frozen beef to which 3 per cent of salt had been added by means of tumbling. (Panel Reports, para. 7.420)  The European Communities submits  that this ruling quotes Explanatory Notes of the 
Combined Nomenclature and supports the proposition that heading 02.10 concerns meat salted for preservation.  
(European Communities' appellant's submission, para. 290) 
563Panel Reports, para. 7.340. 
564Ibid., para. 7.421. WT/DS269/AB/R 
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one  Member, they represent a common agreement among  all  Members".
565  It also found that in the 
"specific case of the interpretation of a tariff conc ession in a Schedule", the purpose of interpretation 
is "to establish the common  intention of the parties to the treaty".566  The Appellate Body concluded 
that:   
... the classification practice of the importing Member, in fact, may 
be of great importance.  However, the Panel was mistaken in finding that the classification practice of the United States was not  
relevant.
567 (original emphasis) 
300. We agree with the Panel that, for purposes of interpreting the term "salted" under 
heading 02.10 of the EC Schedule in the light of the "circumstances of its conclusion", the customs 
classification practice in the European Communities is of great importance568;  however, we share the 
European Communities' view that its situation is not  of exclusive relevance, and that the "prevailing 
situation internationally" is relevant.569  We note that the Panel did, in  fact, examine the United States' 
classification practice.  The Panel concluded that this evidence had limited probative value, notably 
because it concerned products other than those at is sue.  Moreover, the United States indicated that 
the ruling of the United States' custom author ities of 1993 did not "endorse" the European 
Communities' interpretation of heading 02.10.570  We also observe that the Panel considered that it 
had been provided with only "limited evidence" in respect of the classification practice of other WTO 
Members. 
301. In our view, the Panel's conclusion regarding the evidence of other WTO Members' 
classification practice, including that of the United States, falls within its discretion as the trier of facts.  We, therefore, see no basis for objecting to the Panel's treatment of the "prevailing situation internationally".  
                                                     
 
565Appellate Body Report, EC – Computer Equipment , para. 109. (original emphasis) 
566Ibid., para. 93. 
567Ibid.  
568Panel Reports, para. 7.340. 
569European Communities' Notice of Appeal (attached  as Annex I to this Report), para. 3(a). 
570United States' third participant's submission, paras. 7-10;  United States' response to questioning at 
the oral hearing.   WT/DS269/AB/R 
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6. What Types of Events, Acts, and Instruments?  
302. The Panel also addressed the question of what types  of events, acts, and other instruments 
may be taken into account as circumstances of conclu sion under Article 32.  In this dispute, the 
question arises whether the classification practice of  customs authorities and the customs legislation 
of the European Communities and court judgments of the ECJ relating to tariff classification may be 
relevant as "circumstances" of the conclusion of the WTO agreements, including the EC Schedule. 
303. The Panel noted that the Appellate Body recognized in  EC – Computer Equipment  that:   
... the classification practice in the European Co mmunities during the 
Uruguay Round [was] part of 'the ci rcumstances of [the] conclusion' 
of the WTO Agreement  and may be used as a supplementary means 
of interpretation within the meaning of Article 32 of the Vienna 
Convention .571 (emphasis added) 
304. In this statement, the Appellate Body referred to customs classification practice prior to the 
conclusion of a treaty.  The Panel noted that prac tice that "does not qualify as 'subsequent practice' 
under Article 31(3)(b) ... may, nevertheless, be taken into consideration under Article 32".572  T h e  
European Communities criticizes the Pane l for considering classification practice subsequent to  the 
conclusion of the treaty as relevant for pu rposes of interpretation under Article 32.573   
305. In our view, it is possible that documents pub lished, events occurring, or practice followed 
subsequent to  the conclusion of the treaty may give an indication of what were, and what were not, 
the "common intentions of the parties" at the time  of the conclusion.574  The relevance of such 
documents, events or practice would have to  be determined on a case-by-case basis.   
                                                      
571Appellate Body Report, EC – Computer Equipment , para. 92.  
572Panel Reports, para. 7.422.  The Panel found support for its position in Sinclair's statement that 
Article 31(3)(b): 
... does not cover subsequent practice in general, but only a specific form of 
subsequent practice—that is to say, concordant, subsequent practice 
common to all the parties.  Subsequent  practice which does not fall within 
this narrow definition may nonetheless constitute a supplementary means of interpretation within the meaning of Article 32 of the Convention.   
(Sinclair, supra , footnote 36, p. 138 (quoted in Panel Reports, footnote 725 to para. 7.422)) 
573European Communities' appellant's submission, pa ras. 233-234 (referring to Panel Reports, 
para. 7.422). 
 574As we have noted above, the list of supplementary means in Article 32 is not exhaustive because the 
Article refers to supplementary means of interpretation including the preparatory work of the treaty and the 
circumstances of its conclusion.  See also Yasseen, supra , footnote 70, p. 92, paras. 10-11, and his statement 
cited  supra , at footnote 531. WT/DS269/AB/R 
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306. In addition, the European Communities asserts on appeal that the classification practice must 
show a high level of "consistency" for it to be re levant as a "circumstance of the conclusion of a 
treaty".
575  The European Communities refers to the "sta ndards of consistency" that were endorsed by 
the Appellate Body in EC – Computer Equipment , and states that customs classification practice 
should not be considered separately from applicable legislation.  Moreover, according to the European 
Communities, classification practice should not have  been interrupted and must have "endured".576  
307. We believe that the Appellate Body's statement in  EC – Computer Equipment regarding the 
"consistency" of classification practice should not be read as setting a be nchmark for determining 
whether a particular classification practice may qualify at all as "circumstance of the conclusion".  A careful reading reveals that the Appellate Body addressed the degree of relevance of customs 
classification practice.  The Appellate Body said: 
Consistent prior classification practice may often be significant.  
Inconsistent classification practice, however, cannot  be relevant in 
interpreting the meaning of a tariff concession.
577 (original emphasis) 
Thus, the Appellate Body concluded th at the "consistent prior classification practice" is "significant", 
whereas "inconsistent classification practice" is not "relevant".   
308. Regarding the relevance of legislation  relating to customs classification for purposes of 
interpretation, we agree with the Panel's reliance578 on the following statement of the Appellate Body 
in  EC – Computer Equipment : 
If the classification practice of the importing Member at the time of 
the tariff negotiations is relevant in  interpreting tariff concessions in a 
Member's Schedule, surely that Member's legislation on customs 
classification   at that time is also relevant.579 (emphasis added) 
                                                      
575European Communities' appellant's submission, paras. 239-242. 
576Ibid., para. 241. 
577Appellate Body Report, EC – Computer Equipment,  para. 95.  
578Panel Reports, para. 7.341. 
579Appellate Body Report, EC – Computer Equipment,  para. 94.   WT/DS269/AB/R 
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309. In addition, the Panel ask ed whether a Member's  court judgments  may, in principle, be taken 
into account as supplementary means of interpretati on under Article 32.  The Panel concluded that: 
This would suggest that a valid distinction cannot be drawn  
between, on the one hand, EC legisl ation and, on the other hand,  
ECJ judgements for the purposes of Article 32 of the Vienna 
Convention .580 (footnote omitted) 
We share the Panel's consideration that judgments of domestic courts are not, in principle, excluded 
from consideration as "circumstances of the conclusion" of a treaty if they would be of assistance in ascertaining the common intentions of the parties for purposes of interpretation under Article 32.
581  It 
is necessary to point out, however, that judgments deal basically with a specific dispute and have, by 
their very nature, less relevance than legislative acts of general applicati on (although judgments may 
have some precedential effect in certain legal systems).582 
C. Characterization of Relevant Law of the European Communities 
310. Having discussed the concept of "circumstances of the conclusion of a treaty" within the 
meaning of Article 32, we turn to reviewing th e Panel's findings determin ing the relevance, for 
interpreting the term "salted" in the tariff commitme nt under heading 02.10 of the EC Schedule, of the 
customs classification legislation, practice, a nd court judgments of the European Communities 
(namely, EC Regulation 535/94, the Dinter and Gausepohl judgments of the ECJ, certain Explanatory 
Notes to the Combined Nomenclature, and classi fication practice prior and subsequent to the 
conclusion of the EC Schedule).  We then review whether the elements of the European Communities' 
law and practice examined by the Panel qualify as supplementary means of interpretation under 
Article 32 and support the Panel's conclusion with resp ect to the meaning of the term "salted" in the 
tariff commitment under heading 02.10 of the EC Schedule. 
                                                      
580Panel Reports, para. 7.391.  The Panel believed that its "conclusion would seem to be particularly 
valid in relation to the present case where the ECJ judgements in question interpret EC legislation.  In [the 
Panel's] view, it would be an odd situation if such le gislation could be considered under Article 32 of the Vienna 
Convention  but not court judgements, which interpret that legislation." ( Ibid., footnote 681 thereto) 
581In this respect, we note the United States' argum ent that, "where a Member's domestic system 
provides for judicial decisions to have a role in inte rpreting or understanding legi slation ... it follows that 
judicial decisions need to be taken into account as we ll." (United States' response to questioning at the oral 
hearing)  See also China's third participant's submission, paras. 28-36.  
582The European Communities appeals certain aspects of the Panel's interpretation of the concept of 
"circumstances of conclusion".  Howeve r, it argues that, if domestic instruments are taken into account at all 
under Article 32, then domestic court judgments must  be considered as well.  The European Communities 
objects to the Panel's characterization of those judgments in relation to other domestic instruments.   WT/DS269/AB/R 
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311. The European Communities submits on appeal that the Panel mischaracterized the customs 
classification law and practice of the European Co mmunities, in particular EC Regulation 535/94 and 
the ECJ judgment in Gausepohl , and that this mischaracterization amounts to a distortion of facts 
contrary to Article 11 of the DSU.
583  According to the European Communities, the Panel failed to 
consider the "totality" of the European Commun ities' customs legislation, practice, and court 
judgments and erred in interpreting the interac tion between various elements of the European 
Communities' legal system.584  The European Communities challenges specifically the Panel's finding 
that EC Regulation 535/94 "superseded" the ECJ judgment in Gausepohl , such that the criterion of 
preservation under heading 02.10 of the European Communities' Combined Nomenclature no longer 
applies.585   
312. Brazil contends that EC Regulation 535/94  introduced an objective criterion for the 
classification of salted meat (deep salt impregnation w ith a salt content of at least 1.2 per cent), and 
did not refer to the concept of "preservation".  Br azil observes that the Regulation was enacted before 
the conclusion of the WTO agreements and therefor e determines the product definition that applies to 
heading 02.10 of the European Communities' WT O Schedule.  Brazil submits that the Panel 
appropriately considered relevant law, practice, and court judgments of the European Communities.  
According to Brazil, even if the European  Commission took the ECJ's judgment in Gausepohl into 
account in enacting EC Regulation 535/94, that ju dgment suggests that deep impregnation with at 
least 1.2 per cent of salt meets the ECJ's understanding of "preservation".586 
313. Thailand argues that, in Gausepohl , the ECJ held that there are three characteristics for bovine 
meat to be classified under heading 02.10:  the meat must (i) be deeply and evenly impregnated with 
salt in all its parts;  (ii) be for the purpose of pres ervation;  and (iii) have a minimum total salt content 
of 1.2 per cent by weight.587  In contrast, Additional Note 7, in serted into the European Communities' 
Combined Nomenclature through EC Regulation 535/94, provides that, in order to fall under 
heading 02.10, meat must (i) be deeply and homogene ously impregnated with salt in all its parts;  and 
(ii) have a total salt content of not less than 1.2 pe r cent by weight.  In Thailand's view, the European 
                                                      
583European Communities' appellant's submission, para. 288. 
584Ibid., para. 273. 
585Ibid., para. 278 (referring to Panel Reports, para . 7.402).  The European Communities also 
challenges the Panel's interpretation of the ECJ's judgment in Gausepohl , with respect to heading 02.10,  
as not being necessarily governed by the principle of "long-term preservation". (European Communities' 
appellant's submission, paras. 275-276 (referr ing to Panel Reports, paras. 7.398-7.400)) 
586Brazil's appellee's submission, para. 258. 
587Thailand's appellee's submission, para. 159.  WT/DS269/AB/R 
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Communities deliberately omitted from EC Regulation 535/94 the criterion that salting must ensure 
preservation.588 
1. EC Regulation 535/94  
314. As explained above 589, EC Regulation 535/94 provided a product description for 
heading 02.10 of the European Communities' Co mbined Nomenclature that was inserted as an 
Additional Note into Chapter 2 of that nomenclature.590  The Additional Note states:   
For the purposes of heading No. 0210,  the term 'salted' means meat 
or edible meat offal which has been deeply and homogenously 
impregnated with salt in all parts,  having a total salt content of no 
less than 1.2% by weight. 
315. The recitals to EC Regulation 535/94 indicate the reasons why it was enacted: 
Whereas, to ensure uniform application of the Combined 
Nomenclature, provisions should be laid down for the classification 
of salted meat and edible meat offa l falling within CN code heading 
0210, in order to distinguish them from fresh, chilled or frozen meat and edible meat offal;  whereas a total salt content of 1.2% or more by weight appears an appropriate criterion for distinguishing between 
these two types of products. 
316. Regarding the legal effect of EC Regulation 53 5/94 in European Communities' law, the Panel 
found that: 
... EC Regulation No. 535/94 introdu ced an Additional Note into the 
[Combined Nomenclature].  The effect of that Regulation, through the Additional Note that it introdu ced, was that if meat had been 
deeply and homogeneously impregnated with salt, with a minimum 
salt content of 1.2% by weight, it would meet the requirements of that Regulation and would qualify as "salted" meat under heading 02.10 of the [Combined Nomenclature].
591 
                                                      
588Thailand's appellee's submission, paras. 160-161. 
589See supra , para. 142. 
590This Additional Note to the Combined Nomenclature was originally numbered Additional Note 8, 
but was subsequently renumbered as Additional Note 7. 
591Panel Reports, para. 7.369. WT/DS269/AB/R 
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317. The Panel observed that EC Regulation 535/94 was part of the European Communities' 
legislation on customs classification at the time of  the conclusion of the WTO agreements and that, 
therefore, it is relevant as a "circumstance of its conclusion".
592  We agree with the Panel that "the 
mere fact that an act, such as EC Regulation No. 535/ 94, is unilateral, does not mean that that act is 
automatically disqualified from consideration under Article 32".593  Indeed, this is consistent with the 
Appellate Body's statement in EC – Computer Equipment  that a Member's customs legislation is 
relevant in interpreting tariff concessions.594 
318. We turn now to review the Panel's findings concerning the relevance of EC Regulation 535/94 
for purposes of interpreting the term "salted" in  the tariff commitment under heading 02.10 of the 
EC Schedule in the light of Article 32.  As we noted above 595, a number of  factors may be useful in 
ascertaining the relevance of a "circumsta nce of conclusion" for interpretation. 
319. We look first to the  temporal aspect  of the relevance of EC Re gulation 535/94.  We note that 
it was published in the Official Journal of the European Communities  on 11 March 1994 and entered 
into force on 1 April 1994.596  Having considered the participants ' arguments, we believe that the 
temporal proximity of these dates to the conclusion of the WTO Agreement on 15 April 1994 makes 
EC Regulation 535/94 relevant as a "circumstance of  conclusion" for the interpretation of the tariff 
commitment under heading 02.10 of the EC Schedule.   
320. The European Communities submits that the final results of tariff negotiations that took place 
between 1986 and 15 December 1993 cannot be altered by a unilateral measure.597  We agree.  
However, the European Communiti es acknowledges that a legislative act taken during the verification 
period, prior to the formal adoption of the WTO Agreement , could be relevant for interpreting the 
                                                      
592Panel Reports, para. 7.360 (referring to Appellate Body Report, EC – Computer Equipment , 
para. 94). 
593Ibid., para. 7.360.  We note the argument of the United States that EC Regulation 535/94 may be 
relevant as evidence of the meaning that the European Communities itself assigned to the term "salted" under 
Article 31(1) of the Vienna Convention  or, alternatively, that it could be considered as part of the "circumstances 
of [the] conclusion" of the WTO Agreement  under Article 32. (United States ' third participant's submission, 
paras. 5-6) 
594Appellate Body Report, EC – Computer Equipment,  para. 94.  
595Supra , para. 291. 
596The European Communities points out that the Regulation was published after the tariff negotiations 
of the Uruguay Round ended on 15 December 1993.  We also note the ar gument of Brazil and Thailand that the 
publication occurred before the period for verification of Schedules resulting from those negotiations ended on 
25 March of 1994, and that the verification process was an important and integral component of the negotiating process leading to the conclusion of the Schedules of WTO Members.   
597European Communities' appellant's submission, para. 304.  WT/DS269/AB/R 
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tariff commitment under heading 02.10 of the EC Sche dule, provided that compelling evidence proves 
that negotiators "actually took note" of such act.598   
321. We do not believe that the mere fact that  EC Regulation 535/94 was enacted after the 
conclusion of the Uruguay Round tariff negotiations  makes it irrelevant for ascertaining what the 
European Communities intended when offering its ta riff concession, or for ascertaining whether it 
reflects the common intentions of the parties in respect of the tariff commitment under heading 02.10 
of the EC Schedule.   
322. Turning to the subject-matter , EC Regulation 535/94 (which in serts an Additional Note to 
heading 02.10 of the European Co mmunities' Combined Nomenclature) clearly covers the same salted 
meat products that fall under the tariff commitment under heading 02.10 of the European Communities' WTO Schedule.  Although the Eur opean Communities' Combined Nomenclature 
cannot be equated with the European Communitie s' WTO Schedule, the Combined Nomenclature 
implements the European Communities' WTO Schedu le and the Harmonized System in the domestic 
legal system of the European Communities.
599   
323. Turning to the content of EC Regulation 535/ 94, we note that, although Additional Note 7 
mentions deep impregnation with salt, with a minimu m salt content of 1.2 per cent by weight, there is 
no criterion of preservation or long-term preservation st ated in the text of that Regulation.  The 
European Communities contends that EC Regula tion 535/94 provides only one part of the product 
description applicable to the tariff commitment under heading 02.10 of the EC Schedule.  According 
to the European Communities, for purposes of th e tariff commitment under heading 02.10 of the 
EC Schedule, salting must ensure long-term preser vation, and this require ment is not altered by 
EC Regulation 535/94.   
324. The European Communities supports its position with  several arguments.  First, it asserts that 
the criterion of preservation is intrinsic to and fl ows directly from heading 02.10 of the Harmonized 
System.  In addition, it contends that the notion of "preservation" has always governed the European 
Communities' customs classification practice for "salted" meat products and that it has also been 
confirmed in judicial pronouncements of the ECJ since the 1980s.600  EC Regulation 535/94 lays 
down only a technical minimum level of 1.2 per cent of salt for considering a product to be salted for 
"preservation", but it does not and cannot "supersede" the requirement of "preservation".  As we held 
                                                      
598European Communities' appellant's submission, paras. 305, 308, and 310. 
599The Combined Nomenclature may also contain additional specifications and requirements to the 
extent that those are not precluded by  the Harmonized System or WTO law. 
600European Communities' appellant's submission, paras. 282-284. WT/DS269/AB/R 
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above, the product description in heading 02.10 of the Harmonized System (read together with 
relevant Chapter and Explanatory Notes) does not contain a requirement of "preservation" and does 
not limit the scope of heading 02.10 of the Harmon ized System to products that are salted for the 
purpose of "preservation".
601  However, we do not see that EC Regulation 535/94 explicitly requires 
that meat must be salted so as to ensure "preservation". 
325. We turn next to the European  Communities assertion that the requirement of preservation in 
respect of heading 02.10 flows from prior case-law of the ECJ interpreting European Communities' 
customs legislation and from relevant Explanatory Notes.  According to the European Communities, 
that criterion was embedded in the European Commun ities' legal system also after the enactment of 
EC Regulation 535/94 as well, because that Regula tion only implements, but cannot derogate from, 
ECJ case-law and the European Commu nities' Combined Nomenclature. 
2. The  Dinter  and Gausepohl  Judgments of the European Court of Justice  
326. The Panel addressed the ECJ judgments in  Dinter and Gausepohl  before dealing with the 
Explanatory Notes from the 1980s.  In 1982-1983, the ECJ was asked in the Dinter  case602 whether 
turkey meat seasoned with salt and pepper was pr operly classified under Chapter 2 or, instead, under 
Chapter 16 of the European Commun ities' Combined Nomenclature.  The ECJ ruled that the meat was 
properly classified under Chapter 16, because "Chapter 02 comprises poultrymeat which has undergone a preserving process."
 603 
327. We note that the Dinter  judgment relates to salted turkey meat, which is a subset of the 
products covered by heading 02.10 of the EC Schedul e.  However, the temporal relationship between 
that judgment (published in 1983) and the conclusion of the WTO Agreement is remote.  In our view, 
this diminishes its relevance for the "historic background" against which tariff commitments were 
negotiated during the Uruguay Round.  We agree with the Panel that the Gausepohl  judgment 
(published in May 1993)  is more relevant.604 
                                                      
601However, we also found above, that preserva tion criterion may be agreed upon between WTO 
Members within the parameters required by the Harm onized System with respect to a particular tariff 
commitment.  (See Section VIII.B of this Report entitled "Context") 
 602ECJ Judgment, Dinter , supra , footnote 151, para. 6. 
 603The ECJ further stated in Dinter  that chapter 2 "refers to frozen, chilled or salted meat or meat in 
brine and dried or smoked meat.  Seasoning which is not intended as a preservative of meat does not appear 
among those processes ." (Ibid. (emphasis added)) 
604Panel Reports, paras. 7.392-7.394.  WT/DS269/AB/R 
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328. In 1993, in Gausepohl , the ECJ considered the question whether beef to which salt had been 
added should be classified under heading 02.10 .605  The ECJ held that: 
... meat of bovine animals to which a quantity of salt has been added 
merely for the purpose of transpor tation cannot be regarded as 
salted  for the purposes of heading 0210. On the other hand, salting as 
a method of preserving meat of bovine animals for a longer period 
must be applied evenly to all parts of the meat. 
... 
The reply to the questions from the national court should therefore be 
that heading 0210 of the Common Customs Tariff (Combined Nomenclature) must be interpreted as meaning that meat of bovine animals may be classified under that heading as salted meat only if it 
has been deeply and evenly impregnated  with salt in all its parts for 
the purposes of long-term preservation so that it has a minimum total salt content of 1.2% by weight.
606 (emphasis added) 
329. As to the meaning of the Gausepohl  judgment in European Communities' law, the Panel took 
the view that: 
Heading 0210 of [the Combined Nomenclature] … must be 
interpreted as meaning that meat of bovine animals may be classified 
under that heading as salted meat only if it has been deeply and evenly impregnated with salt in all its parts for the purposes of long-term preservation so that it has a minimum total salt-content of 1.2% 
by weight.
607 
However, the Panel found that: 
… the aspects of the Gausepohl  judgment that are relevant to this 
case [—that is, preservation or long-term preservation—] were 
superseded through the enactment of EC Regulation No. 535/94.608 
(emphasis added)   
                                                      
605ECJ Judgment, Gausepohl , supra , footnote 106, paras. 10-12 and 16. 
606Ibid. 
607Panel Reports, para. 7.396 (quoting ECJ Judgment, Gausepohl , supra , footnote 106, paras. 10-12 
and 16). 
608Ibid., para. 7.405. WT/DS269/AB/R 
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330. The Panel also considered that there were "certain ambiguities concerning the meaning and 
effect of the Gausepohl judgment".  The Panel understood the judgment to mean that "bovine meat 
that has been deeply and homogeneously impregna ted with salt and has a minimum salt content of 
1.2% by weight will be covered by heading 02.10 of the EC Schedule".
609  It was not persuaded that 
"the 1.2% salt content is merely a minimum a bove which it is possible that meat qualifies under 
heading 02.10, presumably subject to meeting other conditions"610 (such as a preservation criterion).  
The Panel, therefore, concluded that its interpreta tion of the term "salted" in the tariff commitment 
under heading 02.10 of the EC Schedule as exclud ing a requirement that salting must ensure 
preservation was "not affected" by the  Gausepohl   judgment.611 
331. The European Communities challenges the Panel's finding that EC Regulation 535/94 
"superseded" the ECJ  Gausepohl   judgment, such that the criteri on of preservation in heading 02.10 
of the European Communities' Combin ed Nomenclature no longer applies.612  According to the 
European Communities, the Panel failed to consider the "totality" of the European Communities' legal 
system (including customs legislation, practice, and court judgments)613 and erred in interpreting the 
interaction between various elements of the European Communities' legal system.614  Specifically, the 
European Communities submits that a Commission Re gulation cannot override an interpretation given 
by the ECJ to the European Communities' Combin ed Nomenclature, where that Nomenclature is 
implementing the Harmonized System615, because the Commission "is only empowered to issue 
Regulations at the 'technical level' to ensure  the uniform implementation of the Combined 
Nomenclature".616  In addition, the European Communities ch allenges the Panel's interpretation of the 
Gausepohl  judgment as not being necessarily governed by the principle of "long-term 
preservation".617  Thailand contends that EC Regulation 535/94 did not alter the scope of heading 
                                                      
609Panel Reports, para. 7.399. 
610Ibid. 
611Ibid., para. 7.405. 
612European Communities' appellant's submission, para. 278 (referring to Panel Reports, para. 7.402).  
613Ibid., para.  273. 
614Ibid., paras. 274 ff.  
615Ibid., para. 279 (referring to ECJ Judgment, French Republic v. Commission , Case C-267/94, ECR 
[1995] p. I-4845). 
616Ibid., para. 283.  
617Ibid., paras. 275-276 (referring to Panel Reports, paras. 7.398-7.400).  WT/DS269/AB/R 
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02.10 as interpreted by the ECJ in Dinter  and Gausepohl  618;  rather, it merely specified the criteria to 
be taken into account for classify ing products unde r heading 02.10.619   
332. Regarding the relevance of the Gausepohl   judgment for the interpretation of the term "salted" 
in heading 02.10, we note that the Panel ascribed relevance to Gausepohl   because that judgment 
concerned "the interpretation of heading 02.10 of the [Combined Nomenclature], corresponding to the 
specific heading at issue in this dispute".620  We also note that salted beef—at issue in Gausepohl— 
is a subset of the products that may fall under head ing 02.10, and thus both concern the same subject 
matter.621   
333. We further note, as did the Panel, the te mporal proximity between the publication  
of the Gausepohl  judgment in May 1993, the Uruguay Round tariff negotiations that came to an end 
in December 1993, and the conclusion of the WTO Agreement in April 1994.622  However, temporal 
correlation alone should not be taken to imply that the Gausepohl  judgment actually influenced or 
reflected, in substance, the common intentions of th e negotiators with respect to heading 02.10 of the 
EC Schedule. 
334. The Panel record does not indicate that parties to the Uruguay Round tariff negotiations other 
than the European Communities had actual knowledge of the Gausepohl  judgment, although they 
could have taken notice of the publication of the judgment outside the framework of the Uruguay 
Round.623  However, we noted above that mere access to a published judgment cannot be equated with 
                                                      
618Thailand's appellee's submission, para. 164. 
619Ibid., para. 166.  Thailand refers to an ECJ judgment ( Gijs van de Kolk-Douane Expéditeur BV v 
Inspecteur der Invoerrecten en Accijnzen , Case C-233/88, ECR [1990] I-00265, para. 18 (Exhibit THA-35 
submitted by Thailand to the Panel)) where the ECJ reviewed an Additional Note that did not change the scope of the chapters, sections and headings  of the Combined Nomenclature, but merely specified the criteria to be 
taken into account for classifying certain goods under a particular heading of the Common Customs Tariff". 
(Thailand's appellee's submission, para. 167)  At the oral hearing, Brazil and Thailand argued that EC Regulation 535/94 clarified or implemented the Gausepohl judgment, rather than superseded it.  
620Panel Reports, para. 7.394. 
621As we have noted earlier, what is at issue in th e present dispute is the interpretation of the term 
"salted" in the tariff commitment under heading 02.10 of the EC Schedule, rather than the classification of the 
frozen salted poultry meat covered by the challenged measures. 
622Panel Reports, paras. 7.392-7.394. 
623Brazil stated that, contrary to what the European Communities argued before the Panel, it had 
knowledge of EC Regulation 535/94 because, "during the Uruguay Round, the Brazilian Mission in Brussels 
[was] tasked with monitoring legislative developments in the EC through the publication of legislative acts in 
the EC's Official Journal.  Monitoring and verification of Court judgements, however, have never been a part of 
that job, and it still is not." (Brazil's response to Questio n 122 posed by the Panel, Panel Reports, pp. C-57-C-58 
(original emphasis omitted)), At the oral hearing befo re the Appellate Body, Brazil and Thailand stated that 
tariff negotiators cannot be expected to follow the publication of ECJ judgments in the European Court Reports. WT/DS269/AB/R 
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acceptance of the criterion of preservation (assuming that the Gausepohl  judgment enshrines it).  
Therefore, we are not persuaded that the negotia ting partners of the European Communities can be 
said to have negotiated the tariff commitment under heading 02.10 of the EC Schedule against the 
background of a requirement that "salting" must ensure preservation (assuming that it is enshrined in ECJ case-law). 
335. In general, tariff commitments are negotiate d against the background of the situation 
prevailing in the negotiating parties prior to the conc lusion of the treaty (including, in particular, the 
situation of the importing Member).  However, in th is case, as pointed out by the Panel, it is not 
entirely clear whether the ECJ's Gausepohl judgment implies that bovine me at that has been deeply 
and homogeneously impregna ted with a salt content of 1.2 per cent will ipso facto  be considered as 
preserved for the long-term, and thus covered by head ing 02.10 of the EC Schedule;  or, whether the 
judgment should be read in the sense that the 1.2 per cent salt content is merely a minimum above 
which meat qualifies under heading 02.10 only if  it is additionally preserved for the long-term.  
Therefore, it is not clear whether the ECJ's Gausepohl judgment requires that, for purposes of 
heading 02.10, salting must ensure preservation, and whether such a criterion "lives on" in the 
European Communities' legal system after EC  Regulation 535/94 entered into force. 
336. Regarding the interaction between  EC Regulation 535/94 and the Gausepohl judgment, we do 
not find it necessary, for purposes of resolving this appeal, to decide whether the Regulation "superseded" the judgment.
624  Regardless of whether EC Regulation 535/94 "superseded", clarified, 
or implemented the ECJ judgment in Gausepohl , we are not persuaded that Gausepohl must be 
understood in the sense that the 1.2 per cent salt content is merely a minimum above which it is 
necessary to show—in addition—that salting ensures long-term preservation.625  In any event, we do 
not see evidence on record that the Gausepohl  judgment was taken into account in the Uruguay 
Round negotiations with respect to the tariff commitment at issue. 
337. In addition, the European Communities argues th at the Panel incorrectly "dismissed" relevant 
Explanatory Notes to the European Communitie s' Combined Nomenclature, although these Notes 
remained relevant for assessing classification practice even after the insertion of the Additional Note 
                                                      
624Panel Reports, para. 7.402.   
625We recall in this regard the Panel's conclusion that Gausepohl meant that "meat that has been deeply 
and homogeneously impregnated with salt and has a mi nimum salt content of 1.2% by weight" will be 
considered as preserved and thus "covered by heading 02.10 of the EC Schedule". ( Ibid., para. 7.399)  WT/DS269/AB/R 
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to the Combined Nomenclature through EC Regulation 535/94.626  In 1981627, and again in 1983, the 
European Communities inserted an Explanat ory Note into its Common Customs Tariff.628  According 
to the European Communities, both Explanatory No tes suggest that only meat salted for the purpose 
of "preservation" is classifiable under heading 02.10 of the EC Schedule.  We note that the Panel did 
not ignore, but rather considered the releva nce of the Explanatory Notes for interpreting 
heading 02.10 of the EC Schedule.  The Panel decide d that these Notes did not suggest that a criterion 
of preservation applied under that tariff commitment.629  We also note the remote temporal 
relationship between these Explanatory Notes from the early 1980s and the conclusion of the WTO 
Agreement .   
338. We now turn to consider whether the classi fication practice of the European Communities 
after  the conclusion of the WTO Agreement confirms the European Communities' position that the 
criterion of "preservation" governs its customs classification practice.630  In this regard, we note that 
EC Regulation 535/94 remained in force and seems  to have determined the customs classification 
practice of the European Communities between 1996 a nd 2002.  We recall that the Panel examined,  
in its analysis under Article 31(3)(b), three sets of evidence regarding the classification practice  
of the European Communities between 1996 a nd 2002:  (i) the European Communities' 
acknowledgement that, during this period, certain  European Communities' customs offices were 
classifying the products at issue under heading 02 .10;  (ii) a number of BTIs relating to the 
classification by European Communities' Customs authorities under heading 02.10;  and (iii) three 
                                                      
626European Communities' appellant's submission, para. 286. 
627The 1981 Explanatory Note to Common Customs Tariff (the predecessor of the Combined 
Nomenclature) refers to heading 02.06 of the Brussels Nomenclature and provided that heading 02.06 covered 
only swine meat that has: 
... been preserved, by deep dry salting or pickling in brin e without any other 
supplementary treatment such as drying or smoking. The percentage salt 
content necessary to ensure preservation may vary considerably between different types and cuts of meat. Although this method of preservation is 
normally used as a temporary measure, the period of such preservation must 
considerably exceed the time required for transportation. Meat merely 
sprinkled with salt in order to ensure its preservation while being 
transported remains classi fied as fresh meat.  
628The 1983 Explanatory Note, concerning subheadings 0203.22-11 and 0203.22-19, referred to "frozen 
hams, shoulder or cuts ther eof, with bones" and states: 
Hams, shoulders and parts thereof which have been partially dehydrated, but 
the actual preservation  of which is ensured by freezing or deep-freezing, 
fall in subheadings 0203.22-11 or 0203.22-19. (emphasis added) 
629Panel Reports, paras. 7.413 and 7.416. 
630We noted above that classification practice subsequent to the conclusion of a treaty may give an 
indication of what was intended at  the time of its conclusion. (See supra , para. 305) WT/DS269/AB/R 
WT/DS286/AB/R Page 132 
 
 
sets of minutes of meetings of the European Communities' Customs Code Committee concerning 
classification under heading 02.10.
631   
339. More specifically, the European Commun ities had acknowledged th at, between 1996 and 
2002, customs offices at major ports of the Europ ean Communities (including Hamburg, Rotterdam, 
and certain ports in the United Kingdom) were classify ing products with a salt content of between 1.2 
and 3 per cent under heading 02.10632, and that "substantial trade" of the products at issue entered the 
European Communities under that tariff heading during the period 1996 to 2002.633   
340. Moreover, the Panel reviewed a number of BT I notices relating to product classification by 
customs authorities under heading 02.10.  The BTIs pertaining to frozen salted chicken cuts with a 
salt content of between 1.2 and 3 per cent indicat ed that, from 1998 to 2002, these products were 
classified under subheading 02.10.90.634  The Panel also stated that it was not provided with any BTIs 
indicating that the products at issue were being classified under any heading other than heading 02.10 
(such as, for instance, heading 02.07) before  the introduction of EC Regulation 1223/2002 and 
EC Decision 2003/97/EC.635   
341. Turning to the minutes of the meetings of  the European Communities' Customs Code 
Committee concerning classification under heading 02.10 , the Panel observed that, at the relevant 
meetings, the Committee considered that products wi th characteristics matching those of the products 
at issue were "classifiable" and were also classified under heading 02.10.636   
342. The Panel also reviewed trade statistics concerning trade flows into the European 
Communities under headings 02.07 and 02.10 of the EC Schedule.637  According to the Panel, when 
read together, the BTIs and trade data indicate th at, between 1996 and 2002, significant trade volumes 
of chicken cuts with a salt content of 1.2 to 3 per cent imported from Brazil and Thailand to the 
European Communities were being classified under heading 02.10.638   
                                                      
631Panel Reports, para. 7.268. 
632Ibid., paras. 7.260 and 7.269. 
633Ibid., paras. 7.269 and 7.275.   
634Ibid., para. 7.270. 
635Ibid., para. 7.275. 
636Ibid., paras. 7.272 and 7.275. 
637Ibid., para. 7.272. 
638Ibid., paras. 7.272 and 7.275.  WT/DS269/AB/R 
 WT/DS286/AB/R 
 Page 133 
 
 
343. Thus, the evidence reviewed by the Panel does not indicate that a requirement that salting 
must ensure long-term preservation was applied in the customs classification practice of the European 
Communities under heading 02.10 between 1994 and 20 02 pursuant to EC Regulation 535/94.  In 
view of this, we fail to see how such a criterion could have entered into—even by implication—an 
agreement between the European Communities and other WTO Members with respect to the tariff 
commitment under heading 02.10 of the EC Schedule. 
344. As we held above, the term "salted" in h eading 02.10 of the Harmonized System does not 
contain a requirement that salting must, by itself, ensure long-term preservation;  but, at the same 
time, it does not exclude the notion of "preservation".  Therefore, we are of the view that, if a specific criterion of long-term preservation—such as th e one advocated by the European Communities, 
namely, that salting, by itself, must ensure long-term preservation and that therefore it must be "much 
higher than 3%"—is to form a part of the tari ff commitment of the European Communities under its 
Schedule relating to heading 02.10, then there must be clear evidence that such a criterion was agreed 
upon by the parties for the European Communities'  WTO Schedule.  We see no such evidence on 
record;  nor do we see it stated explicitly in the European Communities' custom s legislation in force  
at the time of conclusion of the WTO Agreement , namely, EC Regulation 535/94;  nor do we  
find it clearly enshrined in the ECJ's case-law prior to the enactment of EC Regulation 535/94.  
Rather, we find that the products at issue in this dispute were invariably classified by the customs  
authorities under heading 02.10 between 1996 a nd 2002, when the European Communities  
adopted EC Regulation 1 223/2002, introducing the phrase "provide d  ...  salting ensures long-term 
preservation". 
345. We turn briefly to the European Communities'  claim under Article 11 of the DSU.  In the 
light of the foregoing, we disagree with the Europ ean Communities that the Panel failed to consider 
the "totality" of the European Communities' legal system.
639  To the contrary, the Panel examined 
relevant customs legislation, practice, and re levant court judgments of the ECJ, although it 
characterized the Gausepohl judgment and interpreted the interac tion between this judgment and EC 
Regulation 535/94 in a way with which the European Communities does not agree.640  Therefore, we 
find that the Panel did not fail to make an objectiv e assessment of the facts within the meaning of 
Article 11 of the DSU.  
                                                      
639European Communities' appellant's submission, para.  273. 
640Ibid., paras. 274 ff.  WT/DS269/AB/R 
WT/DS286/AB/R Page 134 
 
 
D. Conclusion 
346. For the reasons set out above, we modify  certain aspects of the Panel's interpretation of the 
concept of "circumstances of [a treaty's] conclu sion" within the meaning of Article 32 of the Vienna 
Convention; and find that the term "salted" in the tariff commitment under heading 02.10 of the 
EC Schedule, interpreted in the light of supplementary means under Article 32 of the Vienna 
Convention , does not include the requirement that salting must be for the purpose of preservation.  
Therefore, we uphold  the Panel's conclusion, in paragraph 7.423 of the Panel Reports, that the 
supplementary means of interpretati on considered under Article 32 confirm that the products at issue 
are covered by the tariff commitment under heading 02.10 of the EC Schedule. 
XII. Findings and Conclusions 
347. For the reasons set forth in this Report, the Appellate Body: 
(a) regarding the terms of reference: 
(i) upholds
 the Panel's finding, in paragraph 7. 37 of the Panel Reports, that the 
Panel's terms of refe rence do not include EC  Regulation 1871/2003 and 
EC Regulation 2344/2003;  
(ii) upholds  the Panel's finding, in paragraph 7. 37 of the Panel Reports, that the 
products covered by the Panel's terms of  reference are those covered by the 
specific measures at issue, namely, fro zen boneless chicken cuts impregnated 
with salt, with a salt content of 1.2 to 3 per cent; 
(b) regarding the interpretation of the term "salted" in the tariff commitment under 
heading 02.10 of the EC Schedule in the light of Articles 31 and 32 of the Vienna 
Convention : 
(i) upholds  the Panel's conclusion, in paragra ph 7.150 of the Panel Reports, that 
"the ordinary meaning of the term 'sa lted' when considered in its factual 
context indicates that the character of a product has been altered through the addition of salt", and upholds
 the Panel's conclusion, in paragraph 7.151 of 
the Panel Reports, that "there is nothing in the range of meanings comprising 
the ordinary meaning of the term 'salte d' that indicates that chicken to which 
salt has been added is not covered by the concession contained in heading 02.10 of the EC Schedule";  WT/DS269/AB/R 
 WT/DS286/AB/R 
 Page 135 
 
 
(ii) finds  that the term "salted", in heading 02.10 of the Harmonized System, does 
not contain a requirement that salting must, by itself, ensure "preservation"; 
and consequently, upholds  the Panel's finding, in paragraphs 7.245 and 
7.331(c) of the Panel Reports, that the c ontext of the term "salted" in the tariff 
commitment under heading 02.10 of the EC Schedule "indicates that that concession is not necessarily characterized by the notion of long-term preservation", and finds
 that the scope of that tariff commitment is not limited 
to products salted provided that it ensures long-term preservation; 
(iii) upholds  the Panel's conclusion, in paragra ph 7.328 of the Panel Reports, that 
"the lack of certainty associated with the application of the criterion of long-term preservation with respect to the concession contained in heading 02.10 
of the EC Schedule ... could underm ine the object and purpose of security 
and predictability, which lie at the heart of both the WTO Agreement and the GATT 1994"; 
(iv) reverses
 the Panel's interpretation and application of the concept of 
"subsequent practice" within the meaning of Article 31(3)(b) of the Vienna 
Convention ;  and consequently, reverses  the Panel's conclusions, in 
paragraphs 7.289-7.290 and 7.303 of th e Panel Reports, that the European 
Communities' practice of classifying, between 1996 and 2002, the products at 
issue under heading 02.10 of the EC Schedule "amounts to subsequent 
practice" within the meaning of Article 31(3)(b) of the Vienna Convention ; 
(v) modifies  certain aspects of the Panel's interpretation of the concept  
of "circumstances of [a treaty's] conclusion" within the meaning of Article 32 of the Vienna Convention ; but upholds
 the Panel's conclusion, in 
paragraph 7.423 of the Panel Reports , that the supplementary means of 
interpretation considered under Article 32 confirm that the products at issue 
are covered by the tariff commitment under heading 02.10 of the EC Schedule; and consequently 
(c) upholds
 the Panel's findings, in paragraphs 7. 424 and 8.1 of the Panel Reports, that: 
(i) frozen boneless chicken cuts that have been impregnated with salt, with a salt 
content of 1.2 to 3 per cent (the products at issue) are covered by the tariff commitment under heading 02.10 of the EC Schedule; WT/DS269/AB/R 
WT/DS286/AB/R Page 136 
 
 
(ii) EC Regulation 1223/2002 and EC Decision 2003/97/EC result in the 
imposition of customs duties on the products at issue that are in excess of the 
duties provided for in respect of the tariff commitment under heading 02.10 
of the EC Schedule;  and 
(iii) accordingly, that the European Comm unities has acted inconsistently with the 
requirements of Articles II:1(a) and II:1(b) of the GATT 1994 and, thus, 
nullified or impaired benefits accr uing to Brazil and Thailand;  and 
(d) finds
 that the Panel complied with its oblig ations under Article 11 of the DSU. 
348. The Appellate Body recommends  that the Dispute Settlement Body request the European 
Communities to bring its measures, found in this Report and in the Panel Report as modified by this 
Report to be inconsistent with the  General Agreement on Tariff and Trade1994 , into conformity with 
its obligations under that Agreement.  WT/DS269/AB/R 
 WT/DS286/AB/R 
 Page 137 
 
 
 
Signed in the original in Geneva this 27th day of August 2005 by:  
 
 
   
_________________________ 
Giorgio Sacerdoti  
Presiding Member 
 
 
 
  
 _________________________ _________________________ 
 Luiz Olavo Baptista A.V. Ganesan 
 Member Member 
 
  WT/DS269/AB/R 
 WT/DS286/AB/R 
 Page 139 
 
 
 Annex I  
 WORLD TRADE  
ORGANIZATION  WT/DS269/6 
WT/DS286/8 
13 June 2005 
 (05-2500) 
 Original:   English 
   
EUROPEAN COMMUNITIES – CUS TOMS CLASSIFICATION OF 
FROZEN BONELESS CHICKEN CUTS 
 
Notification of an Appeal by the European Communities
 
under Article 16.4 and Article 17 of the Understanding on Rules  
and Procedures Governing the Settlement of Disputes (DSU),  
and under Rule 20(1) of the Working Procedures for Appellate Review  
    The following notification, dated 13 June  2005, from the Delegation of the European 
Commission, is being circulated to Members. 
 
_______________ 
 
Pursuant to Article 16 of the Understanding on Rules and Procedures Governing the Settlement of 
Disputes  ("DSU") and Rule 20 of the Working Procedures for Appellate Review , the European 
Communities ("EC") hereby notifies its decision to a ppeal to the Appellate Body certain issues of law 
covered in the reports of the Pa nel established in response to the requests from Brazil and Thailand in 
the disputes European Communities – Customs Classifica tion of Frozen Boneless Chicken Cuts 
(WT/DS269/R, WT/DS286/R) and certain legal inte rpretations developed by the Panel in these 
reports. 
 
The European Communities seeks review of:  1) The Panel’s conclusion that “Frozen boneless ch icken cuts that have been impregnated with 
salt, with a salt content of 1.2% - 3% (the pr oduct at issue) are covered by the concession 
contained in heading 02.10 of the EC Schedule” (para. 8.1(a) of the Panel Reports) and that, 
as a consequence, EC Regulation No. 1223/2002 and EC Decision 2003/97/EC result in the EC imposing customs duties in excess of those pr ovided for in the EC’s Schedule in respect 
of products falling under heading 02.10 (para. 8.1( b) of the Panel Reports) such that the EC 
has acted inconsistently with the requirement s of Articles II:1(a) and II:1(b) of the GATT 
1994 (para. 8.1(c) of the Panel Reports). 
 2) The Panel’s conclusion is based on several elements of erroneous legal reasoning.  Its 
ultimate erroneous conclusion is that the term “salted” in heading 02.10 is not based on the 
notion of preservation (para. 7.424).  It reaches  this erroneous conclusion by failing properly 
to examine the term “salted” in heading 02.10 in light of the applicable rules of treaty 
interpretation.  The EC seeks review of a ll elements of this incorrect examination. 
 WT/DS269/AB/R 
WT/DS286/AB/R Page 140 
 
 
 The Panel erroneously applies Article 31 of the Vienna Convention of the Law of Treaties . In 
particular, but not necessarily exclusively, the Pa nel fails properly to apply the notions of:  
 a) Ordinary meaning (paras. 7.105; 7.114-7.115; 7.117; 7.140-7.151), in particular, by 
taking into consideration what the Panel re ferred to as “the factual context for the 
consideration of the ordinary meaning”; 
b) Context (paras. 7.161-7.163; 7.171-7.173; 7.179-7.180; 7.189; 7.199-7.202; 7.205; 
7.241; 7.245 ), in particular by failing to  properly examine the immediate context of 
the term “salted” in heading 02.10 and the relevant aspects of the Harmonised 
System;  
 c) Subsequent practice (paras. 7.251; 7.253-7.256; 7.265-7.276; 7.284; 7.288-7.290; 
7.298-7.299; 7.302-7.303), in particular, by misinterpreting the notion of “subsequent practice” and by consid ering that the unilateral “practice”
1 of one party could have a bearing on a multilate rally agreed text and by wrongly analysing 
the existence of “practice” at the EC and multilateral level.   
 d) Object and purpose of the treaty (paras . 7.316 to 7.328), in particular, the Panel’s 
reliance on “security and predictability”. 
 
e) To the extent that the Panel's conclusions are premised on an erroneous assessment 
of the facts, the EC seeks review of that  assessment pursuant to Article 11 of the 
DSU. 
 3) The Panel erroneously applies Article 32 of the Vienna Convention  (paras. 7.336 - 7.423). In 
particular, but not necessarily exclusively, the Panel fails to examine properly the 
circumstances of conclusion (paras. 7.340 et seq.) with a view to establishing the common 
intention of the parties to the treaty in the sense that it:  a) wrongly limits its analysis to “the prevai ling situation in the European Communities” 
ignoring the prevailing situation internationa lly (that is the multilateral context) and 
the practice of other Members (para. 7.340; 7.421); 
 b) develops and applies an erroneous notio n of constructive knowledge  (para. 7.346 ); 
 
c) wrongly analyses prior practice of the Community, relying exclusively on or giving 
undue probative value to and misinterpre ting, EC Commission Regulation 535/94, 
classification between 1996-2002 and other irre levant post-1994 acts as part of the 
circumstances of conclusion  (paras. 7.359- 7.364 7.365-7.370), ther eby failing to give 
proper consideration to prevailing EC law and practice throughout the Uruguay 
Round, in particular in respect of case- law of the European Court of Justice 
interpreting heading 02.10 of the Council Regulation establishing the Combined 
Nomenclature  (paras. 7.390-7.405), EC Explanatory Notes (7.411-7.413) and 
ignoring the legal relationship between the di fferent elements of EC law and practice; 
 d) To the extent that the Panel's conclusi ons are premised on an erroneous assessment of 
the facts, the EC seeks review of that ass essment pursuant to Article 11 of the DSU. 
 
                                                     
 
1  For the avoidance of doubt, the EC does not consider that the actions examined by the Panel can be qualified 
as “practice”.  WT/DS269/AB/R 
 WT/DS286/AB/R 
 Page 141 
 
 
 The provisions of the covered agreements which th e European Communities consider to have been 
erroneously interpreted or a pplied by the Panel include: 
 
• Heading 02.10 of the EC’s Schedule read in c onjunction with Article II :1(a) and II:1(b) of 
the GATT 1994; 
 The EC also considers that the Panel erroneously in terpreted and applied Article 3.2 of the DSU read 
in conjunction with the customary rules of interpre tation of public international law, in particular 
Article 31 (3)(b) and Article 32 of the Vienna Convention and misapplied Article 11 of the DSU. 
 
__________ 
 
   WT/DS269/AB/R 
WT/DS286/AB/R Page 142 
 
 
 Annex II
 
 WORLD TRADE  
ORGANIZATION  WT/DS269/7 
27 June 2005 
 (05-2790) 
 Original:   English 
  
EUROPEAN COMMUNITIES – CUS TOMS CLASSIFICATION OF 
FROZEN BONELESS CHICKEN CUTS 
 
Notification of an Other Appeal by Brazil
 
under Article 16.4 and Article 17 of the Understanding on Rules  
and Procedures Governing the Settlement of Disputes (DSU),  
and under Rule 23(1) of the Working Procedures for Appellate Review  
   The following notification, dated 27 June 2005 , from the Delegation of Brazil, is being 
circulated to Members.  
_______________ 
 
 Pursuant to Articles 16 and 17 of the Understanding on Rules and Procedures Governing the 
Settlement of Disputes  (DSU) and Rule 23 of the Working Pr ocedures for Appellate Review, Brazil 
hereby notifies its decision to appeal certain issu es of law and legal interpretation contained in the 
Panel report in European Communities – Customs Classific ation of Frozen Boneless Chicken Cuts  
(WT/DS269/R).   Brazil seeks appellate review of:   1) The Panel’s Term of Reference 
 
a) The Panel's conclusion that EC Regulation No. 1871/2003 and EC Regulation No. 
2344/2003 are measures outside
 the Panel’s terms of reference
1 based, inter alia, on its interpretation that Brazil’s Panel request was not broad enough to 
include EC Regulation No. 1871/20 03 and EC Regulation No. 2344/2003.2  This 
conclusion was based on an erroneous interpre tation of Articles 6.2 and 7 of the DSU. 
 b) The Panel’s conclusion that the product w ithin its terms of re ference is “frozen 
boneless chicken cuts impregnated w ith a salt content of 1.2%-3%”.
3 In particular, the 
Panel’s interpretation that the product at  issue is determined by the measures 
considered by the Panel to be within its  terms of reference and not by the product 
described in Brazil’s Panel request4 is not consistent with Articles 6.2 and 7 of the 
DSU. 
                                                      
1 Panel Report, paras. 6.15 and 7.32. 
2 Panel Report, paras. 6.9, 6.13, 7.28 and 7.29. 
3 Panel Report, paras. 6.16-6.18 and 7.36. 
4 Panel Report, paras. 6.18 and 7.36.  WT/DS269/AB/R 
 WT/DS286/AB/R 
 Page 143 
 
 
  2) Contextual Interpretation of the EC Schedule: Harmonized System (HS)  
 
a) The Panel’s conclusion that the evolution of the terms and structure of Chapter 2 of 
the Harmonized System (HS) do not clarify the meaning of the concession contained 
in heading 0210 of the EC Schedule,5 specifically in view of its finding that the 
evolution of the terms and structure does not indicate that the predecessor to HS 
heading 0210 was characterized by the notion of “preparation” and not 
“preservation”.6 
 
b) The Panel’s conclusion that the HS Notes and Explanatory Notes do not  clarify the 
meaning of the concession contained in heading 0210 of the EC Schedule.7  I n  
particular, the finding that the HS Explanatory Notes to heading 0210 and Chapter 2 and the HS Notes to Chapter 16 do not he lp in the interpretation of heading 0210 
because the terms “preparation” and “preserva tion” may not be mutually exclusive in 
the context of heading 0210.
8 
 c) The Panel’s decision not
 to apply General Rule 3 in the interpretation of heading 
0210 based on its improper reliance on and accep tance of the parties’ alleged position 
that - within their analysis – the products at issue are not prima facie  classifiable 
under two or more headings.9 
 
d) The Panel’s overall conclusion that the HS  does not further clarify the interpretation 
of the concession contained in heading 0210 of the EC Schedule, in so far as this 
conclusion was based on the Panel’s flawed interpretations of the evolution of the 
terms and structure of HS Chapter 2; th e HS [Explanatory] Notes to Chapter 2, 
heading 0210 and Chapter 16; and th e application of General Rule 3.10 
 Brazil requests that the Appellate Body reverse th e conclusions and findings listed above.  In the 
event the Appellate Body reverses the Panel’s deci sion not to apply General Rule 3, Brazil requests 
that the Appellate Body complete the legal analysis  by examining Brazil’s claim that the application 
of General Rule 3 leads to the classification of the product under heading 0210 on the basis of the 
Panel’s factual findings and the facts on the record.  
 The provisions of the WTO Agreement that Brazil cons iders the Panel to have erroneously interpreted 
or applied are Articles 6.2 and 7 of the DSU and he ading 0210 of the EC Schedule read in conjunction 
with Articles II:1(a) and II:1(b) of the GATT 1994. 
 
__________ 
                                                     
 
5 Panel Report, para. 7.205. 
6 Panel Report, paras. 7.204 and 7.205. 
7 Panel Report, paras. 7.223. 
8 Panel Report, paras. 7.222 and 7.223. 
9 Panel Report, paras. 7.238 and 7.241. 
10 Panel Report, Para. 7.241. WT/DS269/AB/R 
WT/DS286/AB/R Page 144 
 
 
 Annex III
 
 WORLD TRADE  
ORGANIZATION  WT/DS286/9 
27 June 2005 
 (05-2791) 
 Original:   English 
   
EUROPEAN COMMUNITIES – CUS TOMS CLASSIFICATION OF 
FROZEN BONELESS CHICKEN CUTS 
 
Notification of an Other Appeal by Thailand
 
under Article 16.4 and Article 17 of the Understanding on Rules  
and Procedures Governing the Settlement of Disputes (DSU),  
and under Rule 23(1) of the Working Procedures for Appellate Review   
    The following notification, dated 27 June 2005,  from the Delegation of Thailand, is being 
circulated to Members. 
 
_______________ 
 
 Pursuant to Article 17.4 of the Understa nding on Rules and Procedures Governing the 
Settlement of Disputes (the "DSU") and Rule 23 of the Appellate Body's Working Procedures for 
Appellate Review, Thailand hereby no tifies its decision to appeal to th e Appellate Body certain issues 
of law covered in the Panel Report European Communities – Customs Classification of Chicken Cuts , 
WT/DS286/R, (the "Panel Report") and certain legal interpretations developed by the Panel in that 
Report.  
Thailand seeks appellate review of: 
 
(a) the Panel's findings and conclusion set out  in paragraphs 7.25–7.32, that EC 
Regulation No. 1871/2003 and EC Regulation No. 2344/2003 are outside its terms of 
reference;   
 
(b) the Panel's findings and conclusion, set out in paragraphs 6.17, 6.18, 7.36 and 7.37, 
that the products included in the Panel’s te rms of reference are limited to frozen 
boneless chicken cuts impregnated with sa lt, with a salt content of 1.2%- 3%; 
 
(c) the Panel's findings and conclusion, set out  in paragraph 7.223, that all the  
"Explanatory Notes" of the Harmonized System cited by Thailand are "non-binding" and do not further clarify the interpretation of the concession in heading 02.10 of the 
EC Schedule; and, 
 
(d) the Panel's findings and conclusion, set out in paragraph 7.238, th at General Rule for 
the Interpretation of the Harmonised System 3 ("General Rule 3") is not applicable.  
  WT/DS269/AB/R 
 WT/DS286/AB/R 
 Page 145 
 
 
 The above findings and conclusions ar e based on the following legal errors: 
 
- the Panel's error in determining the sc ope of its terms of reference with 
respect to the measures at issue based on its interpretation, inter alia , that 
Thailand's panel request was not broad enough in its formulation to include 
EC Regulation No. 1871/2003 and EC Regulation No. 2344/2003. (paras. 7.16–7.32 of the Panel Report); 
 
- the Panel's error in determining the sc ope of its terms of reference with 
respect to the products at issue by inte rpreting that the product at issue is 
determined by the measures the Panel cons idered to be within  its terms of 
reference and not by the product described  by Thailand in its request for the 
establishment of a panel. (paras. 7.36 and 7.37 of the Panel Report); 
 
- the Panel’s error in applying Article 31 of the Vienna Convention on the Law 
of Treaties with respect to its analysis of relevant aspects of the Harmonized System for the interpretation of the concession in heading 0210 of the EC Schedule.  In particular, Thailand cons iders that the Panel erred in finding 
that the HS Explanatory Notes to head ing 02.10 and Chapter 2 and the Note 
to Chapter 16 are not helpful to clarify the ordinary meaning of the term 
"salted" in the concession contained in heading 02.10 of the EC Schedule. 
Thailand also considers that the Panel incorrectly characterised the Note to 
Chapter 16 as an Explanatory Note when it is in fact a Chapter Note that 
forms part of the Harmonized System and is therefore binding. (paras. 7.206–7.223 of the Panel Report);  and 
 
- the Panel's error in deciding not to apply General Rule 3.  The Panel 
improperly relied on the parties' position th at – in their view – the product at 
issue does not fall prima facie  under two or more head ings and consequently 
erred in failing to provide its own anal ysis of whether the product at issue 
prima facie  falls under two or more headings. (paras. 7.224–7.241.)  
 
Thailand requests the Appellate Body to review the above findings or conclusions of the 
Panel.  The provisions of the Marrakesh Agreemen t Establishing the WTO that Thailand considers the 
Panel to have erroneously interp reted or applied are heading 0210 of the EC Schedule read in 
conjunction with Article II:1(a) a nd II:1(b) of the GATT 1994, as well as Article 3.7, 6.2 and Article 7 
of the DSU.   
__________ 
 
  WT/DS269/AB/R 
WT/DS286/AB/R Page 146 
 
 
 Annex IV
 
 
CHAPTER 2 OF THE HARMONIZED SYSTEM (1992 VERSION) 
 
2 MEAT AND EDIBLE MEAT OFFAL 
0201 Meat of bovine animals, fresh or chilled 
0201.10 -Carcasses and half-carcasses 
0201.20 -Other cuts with bone in 
0201.30 -Boneless 
0202 Meat of bovine animals, frozen. 
0202.10 -Carcasses and half-carcasses 
0202.20 -Other cuts with bone in 
0202.30 -Boneless 
0203 Meat of swine, fresh, chilled or frozen. 
 -Fresh or chilled : 
0203.11 --Carcasses and half-carcasses 
0203.12 --Hams, shoulders and cu ts thereof, with bone in 
0203.19 --Other 
 -Frozen : 
0203.21 --Carcasses and half-carcasses 
0203.22 --Hams, shoulders and cu ts thereof, with bone in 
0203.29 --Other 
0204 Meat of sheep or goats, fresh, chilled or frozen. 
0204.10 -Carcasses and half-carcasses of lamb, fresh or chilled 
 -Other meat of sheep, fresh or chilled : 
0204.21 --Carcasses and half-carcasses 
0204.22 --Other cuts with bone in 
0204.23 --Boneless 
0204.30 -Carcasses and half-carcasses of lamb, frozen 
 -Other meat of sheep, frozen : 
0204.41 --Carcasses and half-carcasses 
0204.42 --Other cuts with bone in 
0204.43 --Boneless 
0204.50 -Meat of goats 
0205 Meat of horses, asses, mules or hinnies, fresh, chilled or frozen. 
0205.00 Meat of horses, asses, mules or hinnies, fresh, chilled or frozen. 
0206 Edible offal of bovine animals, swine, sheep, goats, horses, asses, mules or hinnies, 
fresh, chilled or frozen. 
0206.10 -Of bovine animals, fresh or chilled 
 -Of bovine animals, frozen : 
0206.21 --Tongues 
0206.22 --Livers 
0206.29 --Other 
0206.30 -Of swine, fresh or chilled 
 -Of swine, frozen : 
0206.41 --Livers 
0206.49 --Other 
0206.80 -Other, fresh or chilled 
0206.90 -Other, frozen  WT/DS269/AB/R 
 WT/DS286/AB/R 
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 2 MEAT AND EDIBLE MEAT OFFAL 
0207 Meat and edible offal, of the poultry of  heading No. 01.05, fresh, chilled or frozen. 
0207.10 -Poultry not cut in pieces, fresh or chilled 
 -Poultry not cut in pieces, frozen: 
0207.21 --Fowls of the species Gallus domesticus  
0207.22 --Turkey 
0207.23 --Ducks, geese and guinea fowls 
 -Poultry cuts and offal (Including livers) , fresh or chilled 
0207.31 --Fatty livers of geese or ducks 
0207.39 --Other 
 -Poultry cuts and offal other than livers, frozen:  
0207.41 --of fowls of the species Gallus domesticus  
0207.42 --of turkeys 
0207.43 --Of ducks, geese or guinea fowls 
0207.50 --Poultry livers, frozen 
0208 Other meat and edible meat offal, fresh, chilled or frozen. 
0208.10 -Of rabbits or hares 
0208.20 -Frogs' legs 
0208.90 -Other 
0209 Pig fat, free of lean meat, and poultry fat, not rendered or otherwise extracted, 
fresh, chilled, frozen, salted, in brine, dried or smoked. 
0209.00 Pig fat, free of lean meat, and poultry fat, not rendered or otherwise extracted, fresh, 
chilled, frozen, salted, in brine, dried or smoked. 
0210 Meat and edible meat offal, salted, in brine, dried or smoked; edible flours and 
meals of meat or meat offal. 
 -Meat of swine : 
0210.11 --Hams, shoulders and cu ts thereof, with bone in 
0210.12 --Bellies (streaky) and cuts thereof 
0210.19 --Other 
0210.20 -Meat of bovine animals 
0210.90 -Other, including edible flours and meals of meat or meat offal 
 
 
 
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