RESTRICTED  WORLD TRADE  
ORGANIZATION  WT/DSB/M/270 
28 August 2009 
 (09-4053) 
Dispute Settlement Body 
19 June 2009  
 
 
   
MINUTES OF MEETING 
 
Held in the Centre William Rappard
 
on 19 June 2009  
 
Chairman:  Mr. John Gero (Canada) 
  
Subjects discussed
: Page  
 
1. Surveillance of implementation of recommendations adopted by the DSB.........................2  
(a) United States – Section 211 Omnibus Appropr iations Act of 1998:  Status report by 
the United States .............................................................................................................. ...........2  
(b) United States – Anti-dumping measures on certain hot-rolled steel products from 
Japan:  Status report by  the United States...................................................................................5  
(c) United States – Section 110(5) of the US Copyright Act:  Status report by 
the United States .............................................................................................................. ...........6  
(d) European Communities – Measures affecting the approval and marketing of biotech 
products:  Status report by the European Communities..............................................................6  
(e) European Communities – Regime for the importation, sale and distribution of 
bananas:  Second recourse to Article 21.5 of  the DSU by Ecuador:  Status report by 
the European Communities....................................................................................................... ..8 
(f) Brazil – Measures affecting imports of retread ed tyres:  Status report by Brazil .....................11  
2. Colombia – Indicative prices and restrictions on ports of entry ........................................12  
(a) Implementation of the recommendations of the DSB...............................................................12  
3. United States – Continued Dumping and Subsidy Offset Act of 2000:  
Implementation of the recommenda tions adopted by the DSB ..........................................13  
(a) Statements by the European Communities and Japan ..............................................................13  
4. Memorandum of Understanding between the United States and the European 
Commission regarding the importation of high-quality beef and the dispute:  
"EC – Measures Concerning Meat a nd Meat Products (Hormones)" ..............................14  
(a) Statements by Argentina, Australia and Uruguay.....................................................................14  
5. Appointment of Appella te Body members............................................................................19  
6. Proposed nomination for the indicative list of governmental and 
non-governmental panelists ...................................................................................................21  WT/DSB/M/270 
Page 2  
 
1. Surveillance of implementation of recommendations adopted by the DSB 
(a) United States – Section 211 Omnibus Appropr iations Act of 1998:  Status report by the 
United States (WT/DS176/11/Add.79) 
 (b) United States – Anti-dumping measures on certain hot-rolled steel products from Japan:  
Status report by the United States (WT/DS184/15/Add.79) 
 (c) United States – Section 110(5) of the US Copyright Act:  Status report by the United States 
(WT/DS160/24/Add.54) 
 
(d) European Communities – Measures affecting th e approval and marketing of biotech products:  
Status report by the European Communities (WT/DS291/37/Add.17 – WT/DS292/31/Add.17 – WT/DS293/31/Add.17) 
 (e) European Communities – Regime for the importation, sale and distribution of bananas:  
Second recourse to Article 21.5 by Ecuador:  Status report by the European Communities 
(WT/DS27/96/Add.5) 
 (f) Brazil – Measures affecting imports of retreaded tyres:  Status report by Brazil 
(WT/DS332/19/Add.3) 
 
 
1. The Chairman
 recalled that Article 21.6 of the DSU required that, unless the DSB decided 
otherwise, the issue of implementation of the re commendations or rulings shall be placed on the 
Agenda of the DSB meeting after six months follo wing the date of establishment of the reasonable 
period of time and shall remain on the DSB's Agenda until the issue is resolved.  He proposed that the 
six sub-items under Agenda item 1 be considered separately. 
(a) United States – Section 211 Omnibus Appropria tions Act of 1998:  Status report by the 
United States (WT/DS176/11/Add.79) 
2. The Chairman  drew attention to document WT/DS176/ 11/Add.79, which contained the status 
report by the United States on progress in the impl ementation of the DSB's recommendations in the 
case concerning US Section 211 Omni bus Appropriations Act of 1998. 
3. The representative of the United States  said that his country had provided a status report in 
this dispute, on 8 June 2009, in accordance with Article 21.6 of the DSU.  As noted in that status report, a number of legislative proposals that would implement the DSB's recommendations and rulings in this dispute had been introduced in the current Congress, which had convened in 
January 2009.  The US administration was working with the Congress to implement the DSB's 
recommendations and rulings. 
4. The representative of th e European Communities
 said that the United States was presenting 
its seventy-ninth status report on its lack of progr ess in the implementation of the DSB's ruling in this 
dispute.  The EC understood that there were vari ous bills before the House of Representatives and the 
Senate that could lead to a solu tion to this long-standing dispute.  The EC hoped that the new US 
authorities would take steps to finally implement the DSB's ruling. 
5. The representative of Cuba  said that the TRIPS Agreement, negotiated during the Uruguay 
Round, incorporated rules on intellectual property ri ghts into the multilateral trading system for the 
first time. The dispute settlement mechanism,  which had also resulted from the Uruguay Round 
negotiations, became an essential element in provid ing security and predicta bility to the multilateral 
trading system.  He noted that this was something worth remembering when examining the prolonged  WT/DSB/M/270 
 Page 3 
 
 
non-compliance in this dispute.  The actions of th e past three US Governments had violated two of 
fundamental principles of the multilateral trading sy stem;  i.e. the principles of the most-favoured-
nation and national treatment.  It seemed that the United States ignored the Appellate Body's rulings 
and the views of the international community regard ing Section 211.  In May 2009, the new US Trade 
Representative had visited the WTO, and when answ ering the question as to when the United States 
would comply with the DSB's rulings regarding S ection 211, he had replied that his country had a 
history of outstanding compliance, and that the US Congress would work to solve the case.  His reply 
had come as no surprise and had not revealed anything new.  Each month, the United States, after listening to the statements made by many Members, had repeated that it had a great record of compliance.  The status reports continued to refer to the fact that the US administration would work 
with the US Congress on appropriate measures to so lve this case.  Cuba reiterated that, as long as 
there were pending cases for so many years, which implied a continued violation of WTO Agreements, it was not possible to claim that th e United States had a good record of compliance.  
Regarding the work of the US administration with Congress, Cuba recalled that WTO rules applicable 
to this case did not require governments to use onl y their best endeavours.  Under the Marrakech 
Agreement, WTO Members must ensure the conform ity of their laws, regulations and administrative 
procedures with their WTO obligations.  The US ad ministration must work immediately to repeal 
Section 211;  it had no other choice.  The US stat us reports, presented each month, contained the same 
words and did not explain specifically what the United States had done.  The United States could not explain what it had done, as it had done nothing.  Th e reports only made refe rences to legislative 
proposals introduced by the Congressmen on their own initiative.  The facts showed that the 
United States had no intention of complying w ith the DSB's recommendations and rulings.   
6. Cuba noted that on 30 March 2009, the Federal Court for the District of Columbia 
(Washington DC) had issued a ruling that had legiti mized the decision of the Office of Foreign Assets 
Control to deny the license that had been requested in 2006 for the renewal of registration of the Cuban trademark HAVANA CLUB in favour of th e CUBAEXPORT company, thus confirming the 
implementation of Section 211.  Such decisions  were an example of the United States' double 
standards.  He noted that 1 July 2009 would mark four years since the circulation of the Understanding between the EC and the United States re garding the Section 211 dispute.  Pursuant to 
that Understanding, the EC had undertaken not to  request the DSB's authorization to suspend 
concessions or other obligations vis-à-vis  the United States. 
7. Cuba recalled that at the 29 April 2009 Genera l Council meeting, the Director-General had 
expressed his desire to make the WTO "more devel opment-friendly", more "user-friendly", so that all 
could benefit:  large and small, rich and poor, st rong and weak.  It seemed there was still a long way 
to go before the long-awaited balance could be achieved, especially when presented with the case 
such as this, in which, with the c onsent of large, rich and strong countries, international obligations 
had been ignored, and the rights of small and poor  countries, along with the complaints raised by 
many Members every month in the DSB, had comple tely been ignored.  In the past few months, 
several important international events  had taken place that were related,  directly or indirectly, to the 
case at hand and to political motives behind Section 211.  In December 2008, at the first Latin American and Caribbean Summit on Integration and De velopment held in Brazil, all Latin American 
and Caribbean Heads of State and Government had approved a special declaration on the need to end 
the economic, commercial and financia l blockade imposed on Cuba by the United States.  Section 211 
formed part of this blockade.  At the Summit of  the Americas, held in Trinidad and Tobago in 
April 2009 in the presence of the US President, La tin American and Caribbean statesmen, once again, 
had made a unanimous call to e nd the blockade against Cuba.  In June 2009, the 39th General 
Assembly of the Organization of American States, ha d officially laid to rest the infamous, shameful 
and illegal resolution that, in 1962, had excluded Cuba from the Inter-American System and also 
served as a basis for the blockade policy against Cuba .  In recent months, in the midst of those fora, 
US leaders had dared to say that their policy towa rds Cuba had failed because it had not achieved its 
objective, namely to defeat the Cuban revolution.   However, it was what had happened during those 
meetings in Latin America, and what happened every year at the UN General Assembly, when the WT/DSB/M/270 
Page 4  
 
international community almost unanimously voted  in favour of putting an end to the economic, 
commercial and financial blockade  against Cuba, that really demonstrated the failure of the 
United States towards Cuba, a policy which the Sec tion 211 dispute was an integral part of.  The 
actions taken by the United States against Cuba, including in the areas of trade and intellectual 
property, was not only legally unsustainable, politi cally and commercially counter-productive and a 
fiasco in practice, but was also morally and humanly  indefensible.  In the midst of the US recession 
and the consequent international economic crisis, it was becoming increasingly clear that the blockade 
policy, including Section 211, affected not only Cuba and the WTO, but also the economic, commercial and intellectual property interests of businessmen and the US population, as well as those 
of third parties, whether or not they were WTO Me mbers.  So, why did the United States continue to 
insist on maintaining its failed policy?  When all pretexts presented by the United States had 
collapsed, due to their inconsistency, the only possi ble and sensible option was to put an end to this 
isolated and failed policy, which had been ques tioned by Members, without any more excuses and 
delays.  Cuba would continue to raise its concerns, stand up for its rights, seek prompt resolution of 
this dispute and demand the repeal of the legislati on that was inconsistent with international rules. 
8. The representative of China
 said that his country thanked the United States for its status report 
and its statement.  However, China had to, once again, express its concerns since nothing new had 
been reported by the United States and there was no indication when the matter would be resolved.  
As China had pointed out many times, the situa tion of non-compliance was seriously damaging the 
authority of the TRIPS Agreement and the credibility  of the WTO dispute settlement system.  China 
supported the statements made by the EC and C uba, and urged the United States to implement the 
DSB's decision without further delay. 
9. The representative of the Bolivarian Republic of Venezuela  said that his country had noted 
the status report presented by the United States.  At the meeting held in June 2009 at the headquarters 
of the Organization of American States (OAS), w ith a view to revoking the arbitrary OAS sanction 
imposed on Cuba in the context of the Cold Wa r, under which Cuba had been excluded from the 
Organization since 1962, Venezuelan Chancellor Nicol as Maduro had stated that "the next step must 
be the termination of the econo mic blockade imposed by the United States against Cuba".  
Section 211 formed part of this blockade.  Th e United States disregarded DSB's decisions and 
continued to ignore the international outcry to put an  end to the blockade, which had been unilaterally 
imposed on Cuba.  This had been demonstrated, not  only in the OAS but in Geneva as well, in the 
month of June, in connection with the adoption of Cuba's human rights compliance report on the 
occasion of the Universal Periodic Review at the 11th Session of the UN Council on Human Rights.  
At that Session, Cuba had had the full backing of  the representatives who supported the adoption of 
the report of the Working Group, which highlighted Cuba's commitment to the human dignity of its 
people.  That report had been adopted by consensu s.  By maintaining the attitude of non-compliance 
and by repeating the same old argument that the Act was being reviewed by the US Congress and 
other US authorities, the United States was underm ining the credibility of the WTO and was casting 
doubt on its commitments in the WTO, particularly wh en it had argued that its compliance record was 
good.  The United States should not be allowed to c hoose, for reasons having more to do with politics 
than trade, which decisions of the DSB to comply with or not.  For all of those reasons, Venezuela 
called upon the United States to take urgent and n ecessary steps to comply with its obligations under 
the TRIPS Agreement and the DSB's recommendati ons, which determined that Section 211 was 
inconsistent with the WTO Agreements a nd should be revoked as quickly as possible. 
10. The representative of Brazil  said that his country thanked the United States for its status 
report.  Brazil wished to repeat its systemic c oncerns about the non-compliance situation in this 
dispute and to encourage the United States to continue  to take the necessary steps in order to bring its 
measures into conformity with the DSB's recommendations. 
11. The representative of India  said that her country thanked the United States for its status report 
and its statement.  Despite the best endeavours by  the US administration, the full implementation of  WT/DSB/M/270 
 Page 5 
 
 
the DSB's recommendations had not been achieved a nd India remained concerned about this.  India 
encouraged the United States to continue to pursue the necessary actions in this regard. 
12. The representative of Mexico  said that his delegation wished to reiterate that Articles 3.3 and 
21.1 of the DSU respectively stated that, as an esse ntial element to the effective functioning of the 
WTO, prompt settlement of disputes must be ensured, and prompt compliance with the DSB's 
recommendations and rulings was essential in order to  ensure effective resolution of disputes to the 
benefit of all Members.  Mexico urged the parties to  this dispute to keep those principles in mind, and 
to take necessary actions to comply with the recommendations, which woul d benefit the functioning 
of the WTO as well as its Members. 
13. The representative of Ecuador  said that his country thanked the United States for its status 
report and supported the statements made by Cuba a nd other Members.  Ecuador recalled, once again, 
that Article 21 of the DSU had expressly referred to prompt compliance with the DSB's recommendations or rulings, in particular with re gard to the matters affecting the interests of 
developing countries.  He noted that the United St ates closely monitored compliance by all Members 
with their WTO obligations and had expressed, in  the different WTO Councils and Committees, its 
systemic concerns with regard to certain commitm ents undertaken by other Members.  Thus, if the 
United States wished to promote coherence in th e WTO, it should be setting an example in this 
regard.  Ecuador, once again, urged the US admi nistration and the US Congress to accelerate their 
compliance with the DSB's recommendations and rulings by repealing Section 211.  
14. The representative of Viet Nam
 said that his country thanked the United States for its status 
report.  Like at previous DSB meetings, Viet Nam urged the United States to bring its measures into 
conformity with the DSB's rulings and recommendations in this dispute. 
15. The representative of Argentina  said that his country thanked the United States for the 
information provided which, unfortunately, was not new.   Once again, Argentina joined in the request 
made by other delegations for a definitive solution to  this issue.  The lack of effective compliance 
with the DSB's recommendations and rulings had important systemic implications for all WTO 
Members.  Argentina urged the United States to ta ke necessary measures in order to ensure prompt 
implementation of the DSB's recommendations. 
16. The representative of Chile  said that his country thanked the United States for its status 
report.  Like at the previous DSB meetings, Chile urged the United States to comply with the DSB's recommendations and rulings in this dispute as soon as possible.  This would put an end to a situation 
which caused injury to the multilateral trading system. 
17. The representative of Nicaragua
 said that her country had noted the US status report.  Since 
that report was the same as the previous ones, wh ich the United States had been submitting for years, 
Nicaragua did not know what measures had been take n.  Nicaragua believed that submissions of the 
same reports with a different date set a bad preceden t.  Nicaragua, therefore, urged the United States 
to inform the DSB of any measures it had taken to ensure prompt compliance and to provide the date 
by which the United States would comply with its obligations. 
18. The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting. 
(b) United States – Anti-dumping measures on certain hot-rolled steel products from Japan:  
Status report by the United States (WT/DS184/15/Add.79) 
19. The Chairman  drew attention to document WT/DS184/ 15/Add.79, which contained the status 
report by the United States on progress in the impl ementation of the DSB's recommendations in the 
case concerning US anti-dumping measures on certain hot-rolled steel products from Japan. WT/DSB/M/270 
Page 6  
 
20. The representative of the United States
 said that his country had provided a status report in 
this dispute on 8 June 2009, in accordance with Ar ticle 21.6 of the DSU.  As of 23 November 2002, 
the US authorities had addressed the DSB's recommendations and rulings with respect to the calculation of anti-dumping margins in the hot-rolled steel anti-dumping duty inv estigation at issue in 
this dispute.  Details were provided in docum ent WT/DS184/15/Add.3.  With respect to the 
recommendations and rulings of the DSB that had not already been addressed by the US authorities 
by 23 November 2002, the US administration would work with Congress with respect to appropriate 
statutory measures that would resolve this matter. 
21. The representative of Japan
 said that his country thanked the United States for its statement 
and its most recent status report.  Japan noted that the United States reported that it had taken certain 
measures to implement part of the DSB's reco mmendations in November 2002.  Japan was hopeful 
that the United States would soon be in a position to report to the DSB more tangible progress for the remaining part of the DSB's recommendations and ru lings.  A full and prompt implementation of the 
DSB's recommendations and rulings was "essential to  the effective functioning of the WTO and the 
maintenance of a proper balance of th e rights and obligations of Members".
1  Japan called on the 
United States to fully implement the DSB's recommendations in this long-standing dispute without 
further delay. 
22. The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting. 
(c) United States – Section 110(5) of the US Copyright Act:  Status report by the United States 
(WT/DS160/24/Add.54) 
23. The Chairman  drew attention to document WT/DS160/ 24/Add.54, which contained the status 
report by the United States on progress in the impl ementation of the DSB's recommendations in the 
case concerning Section 110(5) of the US Copyright Act. 
24. The representative of the United States  said that his country had provided a status report in 
this dispute on 8 June 2009, in accordance with Ar ticle 21.6 of the DSU.  The US administration 
would work closely with Congress and continue to c onfer with the EC, in order to reach a mutually 
satisfactory resolution of this matter. 
25. The representative of the European Communities  said that the United States had again 
reported on its non-compliance.  The United States ha d continually failed over many years to bring 
itself into compliance with its obligations.  The EC hoped that the new US authorities, who had indicated that Intellectual Property enforcement wa s a priority for them, would solve this dispute 
expeditiously. 
26. The DSB took note
 of the statements and agreed  to revert to this matter at its next regular 
meeting. 
(d) European Communities – Measures affecting the approval and marketing of biotech products:  
Status report by the European Communities (WT/DS291/37/Add.17 – WT/DS292/31/Add.17 
– WT/DS293/31/Add.17) 
27. The Chairman  drew attention to document WT/D S291/37/Add.17 – WT/DS292/31/Add.17 – 
WT/DS293/31/Add.17, which contained the status report by the European Communities on progress 
in the implementation of the DSB's recommendations in the case concerning the EC's measures affecting the approval and mark eting of biotech products. 
                                                     
 
1 Article 3.3 of the DSU.  WT/DSB/M/270 
 Page 7 
 
 
28. The representative of the European Communities  said that his delegation welcomed the 
continuing constructive discussions with the compla inants, which had allowe d yet another extension 
of the reasonable period of time by Canada until 30 June 2009.  Recent developments had shown that 
the EC regulatory procedures on biot ech products continued to work as foreseen in the legislation.  
Twenty-one GMO products had been authorized in the EC since the date of establishment of the Panel 
and others were being processed, in accordance with  applicable law.  The EC believed that further 
progress in such a sensitive area could only be achie ved through dialogue and cooperation.  The EC 
remained open to continue discussions with the three complainants. 
29. The representative of Argentina  said that his country thanked the EC for its status report and 
was satisfied with the excellent results reached through bilateral dialogue.  Argentina would continue 
to monitor any new developmen ts regarding the situation and the EC member State bans. 
30. The representative of Canada  said that her country thanked the EC for its statement.  Canada 
valued the constructive dialogue with the EC to reso lve the issues that had affected, and continued to 
affect the approval and marketing of biotech products  in the EU.  However, Canada continued to be 
particularly concerned about continuing member St ate actions on the cultivation and marketing of 
EU-wide approved biotech products.  Canada would continue to monitor the situation closely and 
hoped to continue the dialogue with the EC to a ddress trade in biotech products in a constructive 
manner. 
31. The representative of the United States  said that his country thanked the EC for its statement.  
He said that being at the mid-point of calendar year  2009 the EC had, regrettably, shown little, if any, 
progress through the first half of 2009 in addressing  the problems in the operation of its approval 
system for biotech products.  As the United States had noted at past DSB meetings, approximately 
50 biotech applications were backed up in the EC approval system.  As a result of this backlog, the 
EC currently banned the import of maize and other important agricultural products produced in the 
United States.  During the first six months of 2009,  the EC had managed to reach a final decision on 
only a single pending product.  And that prod uct – rapeseed T-45 – had first been submitted for 
approval in February 1999.  With the passage of ove r a decade, the rapeseed variety was now obsolete 
and was no longer marketed.  In short, during the fi rst half of 2009, the EC had failed to reach a 
decision on a single biotech product that was current ly in commercial production.  Moreover, with 
regard to EC member State bans on those biotech products that the EC had managed to approve, the 
situation seemed to be getting worse.  As the Un ited States had discussed at the April DSB meeting, 
during the first half of 2009 two additional member States – Germany and Luxembourg – had 
imposed bans on a key biotech product approved at  the EC level.  These bans had been adopted 
despite the fact that the DSB had found that Aust ria's ban on this same product amounted to a breach 
of the obligations set out in the SPS Agreement.2  The United States again urged the EC to take 
                                                      
2 "EC – Measurers Affecting the Approval and Marketing of Biotech Products", WT/DS291/R, 
para. 8.24.   WT/DSB/M/270 
Page 8  
 
prompt steps to resolve those serious and ongoing  problems in the operation of its biotech approval 
system. 
32. The DSB took note
 of the statements and agreed  to revert to this matter at its next regular 
meeting. 
(e) European Communities – Regime for the importation, sale and distribution of bananas:  
Second recourse to Article 21.5 of the DSU by Ecuador:  Status report by the European 
Communities (WT/DS27/96/Add.5) 
33. The Chairman  drew attention to document WT/DS27/ 96/Add.5, which contained the status 
report by the European Communities on progr ess in the implementation of the DSB's 
recommendations and rulings in the case concerni ng the European Communities' regime for the 
importation, sale and distribution of bananas. 
34. The representative of the European Communities  said that, as had been indicated in previous 
meetings, the EC stood ready to implement the r ecommendation made in the Panel Report by means 
of modifying its bound duty.  The EC still hoped that th is rebinding could be made in the context of a 
comprehensive agreement with Latin American supp liers, an agreement that had been sought since 
the EC initiated the GATT Article XXVIII negotiations  back in 2004.  The EC was fully committed to 
finding very soon a final solution to this long-standing "banana saga".  As indicated in its status report, the EC was fully engaged in negotiations wi th all Latin American supplying countries with the 
view to concluding promptly such a comprehensiv e agreement.  The EC hoped that these negotiations 
could soon lead to a satisfactory agreement.  The requests made to the EC to simply sign, tel quel , the 
draft agreement established in the margins of the 2008 July Ministerial Meeting had simply 
disregarded the fact that the signature of that agr eement had been subject to the successful adoption of 
DDA Agriculture modalities.  Having said that, the EC was now engaged in negotiations to discuss 
the possibility of concluding a draft agreement with a number of elements based on the July 2008 text, 
subject to necessary adjustments to the current situ ation and hoped that all banana suppliers would 
constructively engage in the necessary discussions.  This was a unique opportunity to put an end to 
this long-standing dispute and bring to economic  operators the long-awaited legal certainty. 
35. The representative of Ecuador
 said that his country thanked the EC for its status report.  
Ecuador noted that, once again, the EC had not indi cated any date by which it hoped to comply with 
the DSB's recommendations and rulings in this disput e.  On the contrary, the EC had proposed an 
agreement, which was subject to several conditions that would further complicate the negotiations and 
would make it more difficult to reconcile positions of different Members.  Although those issues were 
not related to the compliance with the DSB's reco mmendations and rulings in  this dispute and the 
compensation for the EC's enlargements, Ecuador w as ready to seek a negotiated solution to this long-
standing dispute.  Ecuador had thought that this  dispute would have been resolved with the 
conclusions of the 27 July 2008 Agreement, but the EC had refused to endorse that Agreement.  Any 
proposal by the EC that would tip the balance, reach ed in the July 2008 Agreement, would be difficult 
to accept for Ecuador and any unilateral decision by the EC in this case would have serious political, 
legal and systemic implications. 
36. The representative of Panama  said that his country, like Ecuador and others, believed that a 
positive solution to this dispute was long overdue.  Panama noted the EC's commitment to "finding 
very soon a final solution", but remained concerned about the approach proposed by the EC.  Panama 
could not see how the EC's many unrelated contingencies and procedural complexities were 
conducive to a prompt solution.  A solution aimed at settling all outstanding ba nana actions and legal 
claims was one thing – one tied to a long list of non -banana interests was quite another.  Unrelated 
contingencies should not be allowed to defeat the EC's obligation to come into prompt compliance 
with its obligations.  Panama was also not convin ced that a rebinding, pursuant to Article XXVIII of 
the GATT 1994, would accomplish full and prompt co mpliance with 13 years of negative rulings  WT/DSB/M/270 
 Page 9 
 
 
under the GATT and the GATS.  The EC's compliance obligation extended to all rulings issued over 
the duration of the EC's action.  Given the many instances of non-compliance over the past 13 years, a 
solution, to be permanent, should not only redress the EC's current inconsistencies, but prevent the 
prior ones from reoccurring as well.  All parties wa nted this long dispute to end.  If the EC was 
willing to moderate its contingencies,  open its market, as agreed in Ju ly 2008, and adequately meet its 
DSB compliance obligation, a settlement could be po ssible.  Panama continued to believe that the 
July 2008 Agreement would show the way.  
37. The representative of Nicaragua  said that, like at previous DSB meetings, her country, once 
again, joined Ecuador in calling upon the EC to brin g itself promptly into conformity with the DSB's 
recommendations and rulings.  Nicaragua noted with  regret that there was still an enormous gap 
between what the EC had stated and what the rul es required.  The EC had stated that there was a 
"unique opportunity" to end this dispute, when in fact the EC's unconditional obligation to bring itself into conformity with the recommendations dated ba ck to January 1999.  This "unique opportunity" 
was more than ten years old.  The EC had expressed  its wish that all banana suppliers participate 
constructively in the discussions and that "it takes two to tango".  However, the issue under discussion 
was one of compliance, and this was not an obligat ion that the EC could share with the MFN banana 
supplying countries.  The fact was that the EC had lost 13 bananas cases in the GATT/WTO system, 
and the obligation to put an end to non-complian ce in a constructive manne r was on the EC alone.  
The EC continued to speak of a "comprehensive ar rangement ", which was tantamount to saying that 
the MFN suppliers must pay in other areas so that th e EC could comply with its obligations regarding 
bananas.  The WTO did not provide for the impositi on of conditions that w ould delay or undermine 
compliance.  Nicaragua was ready to help the EC to  comply with its DSB's obligations.  In exchange, 
Nicaragua hoped that the EC would cease to treat th is dispute as a multilateral negotiation and start to 
treat it as a compliance issue that needed to be se ttled promptly with Latin American countries, in 
accordance with WTO rules. 
38. The representative of the Dominican Republic
, speaking on behalf of the ACP countries, said 
that at the previous five DSB meetings, which had dealt with this matter, the ACP countries had 
reiterated their respect for the need to implement final decisions despite their continued disagreement 
with certain conclusions reached by the Panel and the A ppellate Body in this dispute.  As at previous 
meetings, however, the ACP countries felt that it rema ined useful to recall what the Panel and the 
Appellate Body had concluded, namely that the EC 's schedule at this time still committed the EC to a 
TRQ at a tariff of €75/metric tons and an out-of-q uota tariff of €680/metric tons.  As previously 
mentioned, the ACP countries could live with a litera l implementation of tho se conclusions.  The EC, 
however, had indicated that it aimed to change its  tariff commitments through negotiations with the 
MFN banana suppliers, and thereby also achieve co mpliance and implementation.  It appeared that 
this process would lead to an overall reduction of  applied (and bound) duty rates.  It was worth 
recalling that the DSB's conclusions in this dis pute did not require any overall reduction of average 
tariffs;  all they required was a rearrangement.  A decision to reduce the EC's average banana tariff 
was not related to compliance, but rather to th e DDA negotiations.  The ACP remained committed to 
supporting its partners in finding an effective solution to the "banana issue".  The steps towards such a 
solution, however, should be taken for the right reas ons and should be anchored and balanced out in 
the right context. 
39. The representative of Honduras  said that his country had legal and economic interests in the 
Bananas dispute.  Its legal interest resulted from the fact that Honduras had been one of the five 
original complainants in the Bana nas III dispute.  In this regard, he noted that there was no single 
Panel or Appellate Body Report pertaining to the Ba nanas dispute that had concluded that the EC had 
brought itself into conformity with its obligations  vis-à-vis Honduras or the other co-complainants.  
Honduras would continue to insist that its rights be respected.  Honduras' economic interest stemmed 
from the fact that it was a substantial banana pr oducer, and for many years it had been suffering from 
the effects of the EC's discrimination.  In 1992, a ye ar prior to the entry into force of the EC's first 
banana import regime, Honduras had shipped 240,000 mt to the EC market.  In 2008, it had shipped WT/DSB/M/270 
Page 10  
 
no more than 24,000 mt.  In other words, shipments to the EC had fallen by 90 per cent in a crucial sector of Honduras' economy.  Consequently, Hon duras was keen to have its legal and economic 
rights restored.  Honduras regretted that after nine rulings against the EC in the Bananas III dispute, 
two WTO arbitrations, and many years with the disp ute being discussed in the DSB, the EC had yet to 
inform Members as to how it intended to bring itself into conformity with its obligations.  What the 
EC called a "comprehensive" proposal was the EC's  way of avoiding compliance in other areas of the 
WTO instead of bringing itself promptly into conformity with WTO rules.  The number of conditions involved in this "comprehensive" approach had rendered the possibility of reaching an agreement 
unnecessarily complicated and had undermined the DSU provisions on compliance.  Honduras was ready to work with the EC to find an arrangement that would genuinely lead to compliance;  that 
would open up the EC market;  that would restore Honduras' rights;  and that would prevent further 
non-compliance.  Honduras believed that the tariff cuts  accepted by the EC in July 2008 continued to 
provide the best way to resolve this dispute. 
40. The representative of Colombia
 said that his country had noted the EC's intention to bring 
itself into compliance with the DSB's recommendations  and rulings by modifying its scheduled tariff 
commitments on bananas.  Colombia hoped to enter s hortly into negotiations with the EC in order to 
settle this dispute as rapidly as possible. 
41. The representative of the United States  said that his country thanked the EC for its status 
report and statement.  However, once again, the EC  had provided no information regarding how it was 
in compliance with its obligations under Articles I and XIII of the GATT 1994.  And, once again, the 
United States noted that the DSB had not adopted an y finding that the EC was in compliance with its 
WTO obligations with respect to its bananas import re gime with respect to any of the other original 
co-complainants in this dispute, including the United States.  The reasonable period of time for 
compliance in this dispute had expired more than ten years ago, on 1 January 1999.  The commercial 
impact of the EC's non-compliance over this very long period was undeniably large and damaging to a 
number of WTO Members.  The United States called on the EC to resolve this dispute and, until then, 
to provide a comprehensive explanation of how the EC intended to come into substantive compliance 
with all of the DSB's recommendations and rulings.  
42. The representative of Cameroon  said that his country thanked the EC for its status report and 
supported the EC's approach to seek a compre hensive agreement, which would guarantee a 
satisfactory solution in order to end this disput e.  Cameroon supported the statement made by the 
Dominican Republic, on behalf of the ACP countri es, with regard to rebinding.  Cameroon stood 
ready to help to solve this dispute as soon as possible. 
43. The representative of Panama  said that his country wished to make some comments on the 
statement made by the ACP countries.  Ecuador's  Article 21.5 Panel Repor t had established with 
clarity and finality that the EC's current €176/ mt banana tariff was "in excess of" the EC's bound 
banana tariffs set forth in Part I of its Schedule (Part I included both the €75/mt in-quota tariff and the 
€680/mt out-of-quota tariff), and must be reduced in order for the EC to be in compliance with its 
GATT Article II obligations.  The Panel had explic itly ruled that the EC's tariff "set at €176/mt, 
without consideration of the tariff quota for 2.2 m illion mt bound at an in-quota tariff rate of €75/mt, 
was an ordinary customs duty in excess of that set forth and provided for in Part I of the European 
Communities' Schedule, and resulted in a treatment  for the commerce of bananas from MFN countries 
(i.e., non-ACP WTO Members) that was less favourable than that provided for in Part I of the 
European Communities' Schedule [and] … therefore … was inconsistent with the first sentence of 
Article II:1(b) of the GATT 1994." [paras. 7.504 and 8.2(d)].  The EC had chosen to accept that 
Panel's finding by not appealing it.  The Appellate  Body, thereafter, had affirmed the EC's GATT 
Article II violation using language nearly identical to the findings of the Panel:  "[T]he tariff applied 
by the European Communities to MFN imports of ba nanas, set at €176/mt, without consideration of 
the tariff quota of 2.2 million mt bound at an in-quota  tariff rate of €75/mt, is  inconsistent with the 
first sentence of Article II:1(b) of GATT 1994, inso far as it constituted "an ordinary customs duty in  WT/DSB/M/270 
 Page 11 
 
 
excess of that set forth and provided for in Part I of the European Communities' Schedule, and results 
in a treatment for the commerce of bananas from MFN countries (i.e., non-ACP WTO Members) that 
is less favourable than that provided for in Part  I [of the] European Communities' Schedule."  
[paras. 455 and 478(c)(iii)].  The EC had since assured the DSB that "it will bring itself into compliance" with the Article II finding by "rebinding its tariff."  Any rebinding by the EC above 
€176/mt, rather than significantly below it, would c ontradict that assurance and would leave the EC's 
regime out of compliance. 
44. The representative of th e European Communities
 said that the Appellate Body had confirmed 
that no recommendation, as opposed to findings, was warra nted with respect to the measure at issue in 
this dispute, since it was no longer in existence (p ara. 479 of the AB Report).  The Appellate Body 
had referred generally to the principle that in Article 21.5 of the DSU, original DSB's 
recommendations and rulings "remain in effect until th e EC brings itself into substantive compliance".  
However, there was no longer a compliance issue, si nce the measure at fault had ceased to exist in 
2007.  The current tariff treatment of bananas of ACP origin was a completely different measure, 
based on the negotiation of Free Trade Agreements  with the ACP countries concerned.  Tariff 
preferences could equally result from ongoing FTA  negotiations with Latin American suppliers. 
45. The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting. 
(f) Brazil – Measures affecting imports of retreaded tyres:  Status report by Brazil 
(WT/DS332/19/Add.3) 
46. The Chairman  drew attention to document WT/DS332/ 19/Add.3, which contained the status 
report by Brazil on progress in the implementation of the DSB's recommendations and rulings in the 
case concerning Brazil's measures affecting imports of retreaded tyres. 
47. The representative of Brazil  said that, on 8 June 2009, Brazil had provided the DSB with a 
further status report in the dispute, in accordance with Article 21.6 of the DSU.  Brazil remained 
convinced that the actions pursued by the Braz ilian Government constituted not only a fundamental 
step in strengthening Brazil's environmental policy,  but that those actions would also bring full 
implementation of the DSB's recommendations and rulings in this dispute. 
48. The representative of the European Communities  said that his delegation had noted Brazil's 
fourth status report.  The EC noted again that Brazil had admitted not having achieved compliance to date, and this despite the expiry of the reasonabl e period of time on 17 December 2008.  As regards 
Brazil's efforts towards implementation, the EC maintained its position last expressed at the 
20 May 2009 DSB meeting.  The EC was neither c onvinced nor satisfied by Brazil's actions.  As had 
been previously stated, the fastest and the b est way to remove the ongoing WTO-inconsistent 
discrimination consisted of lifting th e import ban on retreaded tyres.  Th is would also have the benefit 
of allowing Brazil to comply with its MERCOSUR obligations, as confirmed by binding arbitral 
rulings.  From the fourth status report, the EC c ould still not see what Brazil intended to put in place 
when referring to a "common trade regime for tyr es with its MERCOSUR partners".  The EC recalled 
that the DSB's rulings and recommendations in th is case did not permit keeping the import ban in 
place while maintaining the possibility for intra-MERCO SUR trade in retreads.  The EC continued to 
express its understanding and s upport for measures aiming at environmental and public health 
protection.  To achieve this aim, however, the EC considered that Brazil had better and more effective 
measures at its disposal than the ones currently in pl ace.  The EC was deeply concerned about the lack 
of progress and called again upon Brazil to end, without  further delay, its arbitrary and discriminatory 
practices regarding retreaded tyres, and to do so by removing the import ban. 
49. The DSB took note
 of the statements and agreed  to revert to this matter at its next regular 
meeting. WT/DSB/M/270 
Page 12  
 
2. Colombia – Indicative prices and restrictions on ports of entry 
(a) Implementation of the recommendations of the DSB 
50. The Chairman
 recalled that, in accordance with the DS U provisions, the DSB was required to 
keep under surveillance the implementation of reco mmendations and rulings of the DSB in order to 
ensure effective resolution of disputes to the benefit of all Members.  In that respect, Article 21.3 of 
the DSU provided that the Member concerned shall in form the DSB, within 30 days after the date of 
adoption of the panel or Appellate Body report, of its intentions in respect of implementation of the 
recommendations and rulings of the DSB.  He recal led that at its meeting on 20 May 2009, the DSB 
had adopted the Panel Report pertaining to the dispute on:  "Colombia – Indicative Prices and Restrictions on Ports of Entry".  He invited Colombia to inform the DSB of its intentions in respect of 
implementation of the DSB's recommendations. 
51. The representative of Colombia
 said that his country would comply with the 
recommendations and rulings adopted by the DSB at  its meeting on 20 May 2009.  To that end, 
Colombia had examined possible implications of the recommendations of the Panel Report for its 
domestic law and customs administration.  Followi ng its examination, Colombia had come to the 
conclusion that it would not be able to implemen t immediately, and that it would seek a reasonable 
period of time, pursuant to Article 21.3 of the DSU, to work on various technical and legal aspects in 
order to bring its measures into conformity with the Panel's recommendations.  He said that implementation in this case called for an internal pr ocess, which involved the participation of different 
government entities concerned (National Customs Dir ectorate;  Ministry of Finance and Public 
Credit;  Ministry of Trade, Industry and Tourism;   Committee on Customs and Tariffs;  and Office of 
the President of the Republic) as well as a number of legislative amendments.  Colombia would 
discuss the matter with Panama with a view to re aching an agreement on a re asonable period of time 
for implementation. 
52. The representative of Panama
 said that his country thanked Colombia for its statement.  
Colombia and Panama had held discussions both in the capitals and in Geneva.  The purpose of the 
discussions was to reach an unders tanding on a reasonable period of ti me for Colombia to bring its 
measures into conformity with WTO rules.  During those discussions, Colombia had informed Panama that it would be undertaking a comprehensiv e reform of its customs valuation system, and 
that this would require an extended reasonable period of time.  Colombia, like any other WTO 
Member, was entitled to conduct a thorough and comp rehensive reform of its  general system of 
customs valuation.  However, in this particular cas e, such a comprehensive reform was irrelevant to 
Panama, and to any other WTO Member, since what was required was compliance with the Panel's 
conclusions and recommendations.  It was unlikely that a panel, or the Appellate Body, or an 
arbitrator would consider the comprehensive reform s that Colombia wished to introduce relevant for 
the purposes of compliance.  Indeed, it would appear that Colombia itself did not yet know exactly what those reforms would entail, but information received indicated that the reforms would go far 
beyond correcting the challenged measures on port rest rictions, indicative prices and advance import 
declarations.  What was important in this case wa s that those "specific" measures should be brought 
into conformity with the WTO Agreements as soon as possible.  Colombia's proposals were not 
meeting this objective, and were completely not acceptable to Panama.  The suggested time-periods 
were exaggerated and the port restri ctions and indicative prices had to be eliminated immediately.  
Panama did not understand why Colombia could not proceed with the same speed as it had done in 
2006 when, as a result of bilateral consultations, it ha d dismantled similar restrictions on ports within 
48 hours following a mutually agreed solution betw een the two countries, which had been notified to 
the DSB.  As for the indicative prices, Panama was prep ared to agree to a period of time that would be 
considerably shorter than what Colombia had pr oposed.  However, the discussions between Colombia 
and Panama had failed to reconcile their positions .  The same applied to the recommendations 
concerning advance import declarations.  Panama  would be willing to show a certain amount of 
flexibility, but could not, under an y circumstances, accept any lengthy delays that were not justified  WT/DSB/M/270 
 Page 13 
 
 
by the arguments put forward by the Panel.  In c onclusion, Panama urged Colombia to bear in mind, 
when reconsidering how to implement the Panel' s recommendations, that Panama had already waited 
a long time in this dispute:  i.e. since 2005.  Panama also hoped that Colombia would take into account the importance of not only the two countries' current bilateral trade in goods and services, but 
also their solid relations in the area of investment.  
53. The representative of Chinese Taipei
 said that her delegation thanked Colombia for the 
information of its intention to implement the DSB' s recommendations and rulings.  As a third party in 
the Panel proceeding, Chinese Taipei had both substa ntial and systemic interest in the dispute.  
Chinese Taipei was glad to see that the Panel Re port had been adopted by the DSB in May.  
Chinese Taipei urged Colombia to follow what was se t out in Article 21.1 of the DSU, and promptly 
bring itself in compliance with the DSB's recommenda tions and rulings in order to ensure effective 
resolution of disputes to the benefit of all Members. 
54. The DSB took note  of the statements, and of the inform ation provided by Colombia regarding 
its intentions in respect of implementation of the DSB's recommendations. 
3. United States – Continued Dumping and Subsid y Offset Act of 2000:  Implementation of 
the recommendations adopted by the DSB 
(a) Statements by the European Communities and Japan 
55. The Chairman  said that the item was on the Agenda of the present meeting at the request of 
the European Communities and Japan.  He inv ited the respective representatives to speak. 
56. The representative of the European Communities  said that, as in many previous meetings, his 
delegation wished to ask the United States when it wo uld effectively stop the transfer of anti-dumping 
and countervailing duties to its industry and finally put an end to the condemned measure.  The EC 
also renewed its call to the United States to abide by its clear obligation under Article 21.6 of the DSU 
and to submit status reports in this dispute. 
57. The representative of Japan  said that, on 26 May 2009, the US Customs Border Protection 
had published "FY 2009 Preliminary CDSOA amount s available" as of 30 April this year.3  This latest 
action showed that the CDSOA remained operational.4  Japan, once again, called on the United States 
to stop illegal distributions and repeal the CDSOA, not just in form but in substance, so as to resolve 
this dispute once and for all.  According to Article 21.6 of the DSU, the United States was under obligation to provide the DSB with a status report in this dispute "until the issue is resolved".  Japan 
reserved all its rights under the DSU until the United States came into full compliance. 
58. The representative of China
 said that his country thanked the EC and Japan for, once again, 
raising this matter at the DSB meeting.  China sh ared the concerns expressed by previous speakers 
and wished to join them in urging the United States to comply fully with the DSB's rulings. 
59. The representative of India  said that her country thanked the EC and Japan for bringing, once 
again, this issue before the DSB.  In India's vi ew, the CDSOA still allowed for disbursements by the 
US administration to its domestic industry, showin g that the Byrd Amendment continued to be in 
force and was thus affecting the rights of other WT O Members.  Members continued to raise concerns 
about this situation.  As reite rated previously, India was concerned that non-compliance by Members 
                                                      
3 See US Customs and Border Protection's website at: 
http://www.cbp.govainkhandler /cgov/trade/priority trade/add cvd/cont  dumpify09 prel im.cttify09 prelim.pdf  
4 In the words of the US Customs, "the distribution process will continue for an undetermined period". 
See US Customs and Border Protection's website at: 
http://www.cbp.gov/xp/cgov/trade/ priority trade/add cvd/cont dump/cont dump faq.xm 1  WT/DSB/M/270 
Page 14  
 
led to a growing lack of credibility of the WTO dispute settlement system.  India, therefore, urged the United States to cease its WTO-inconsistent disbursement. 
60. The representative of Canada
 said that her country thanked the EC and Japan for having 
placed this item on the Agenda of the present meeting.   Canada shared the view of the EC and Japan 
that the Byrd Amendment remained subject to th e DSB's surveillance until the United States ceased to 
apply it. 
61. The representative of Brazil  said that his country thanked the EC and Japan for maintaining 
this item on the DSB's Agenda and joined those dele gations in urging the United States to eliminate 
the trade-distorting effects of the disbursements under the Byrd Amendment.  Brazil emphasized that 
full compliance in this dispute would only come th rough the complete cessation of all disbursements 
under the Byrd Amendment.  
62. The representative of Thailand  said that his country thanked the EC and Japan for bringing, 
once again, this item before the DSB.  Thailand urged the United States to cease disbursements under 
the Continued Dumping and Subsidy Offset Act,  repeal the Byrd Amendment with immediate 
practical effect, and resume providing status reports  until such actions were taken and this matter was 
fully resolved. 
63. The representative of the United States  said that, as the United States had already explained at 
previous DSB meetings, the US President si gned the Deficit Reduction Act into law on 
8 February 2006.  That Act included a provisi on repealing the Continued Dumping and Subsidy 
Offset Act of 2000.  Thus, the United States had ta ken all actions necessary to implement the DSB's 
recommendations and rulings in these disputes.  The United States further recalled that Members had 
acknowledged, during previous DSB meetings, that  the 2006 Deficit Reduction Act did not permit the 
distribution of duties collected on goods entered after 1 October 2007.  With respect to comments regarding further status reports in this matter, as had already been expl ained at previous DSB 
meetings, the United States failed to see what purpose would be served by further submission of status 
reports repeating the progress the United States made in the implementation of the DSB's 
recommendations and rulings. 
64. The DSB took note
 of the statements. 
4. Memorandum of Understanding between the United States and the European 
Commission regarding the importation of high-quality beef and the dispute:           "EC – Measures Concerning Meat and Meat Products (Hormones)" 
(a) Statements by Argentina, Australia and Uruguay 
65. The Chairman
 said that this item was on the Agenda of the present meeting at the request of 
Argentina, Australia and Uruguay.  He then inv ited the representatives of the respective countries to 
speak. 
66. The representative of Australia  said that her country recognized that the bilateral agreement 
between the EC and the United States, as announced on 13 May 2009, sought to find a way forward in 
the long-running beef hormones dispute.  Australia noted that the agreement established a new tariff-
rate quota for high-quality beef.  As a major global b eef exporter, Australia was taking a close interest 
in the establishment, implementation and administrati on of that quota.  Australia thanked the EC for 
the opportunity to discuss bilaterally that new qu ota and for the information provided to date.  
Australia understood that the quota would be offe red on a most-favoured-nation (MFN) basis and on 
the principle that it would be open to all countri es.  However, the quota, as it appeared in the 
Memorandum of Understanding (MOU)  between the European Union and the United States, raised 
concerns about consistency with th e WTO Agreements.  Australia was keen to ensure that the quota  WT/DSB/M/270 
 Page 15 
 
 
was not discriminatory in its treatment of beef  exporters, was consiste nt with the EC's WTO 
obligations and would provide equal access for all beef exporters, including Australian beef exporters 
of high-quality beef.  Australia obviously would we lcome any increased access that flowed from the 
establishment of the new quota.  Australia noted  that its response at the present meeting was 
preliminary, and would welcome further de tails about how the quota would operate. 
67. The representative of Argentina  said that it was his country's understanding that the EC and 
the United States had reached an agreement that would establish a new quota for the importation of 
high-quality beef in relation to the long-standing beef hormones dispute.  Argentina expressed its 
satisfaction with the parties' willingness and efforts to reach an agreement in this long-running beef 
hormones dispute.  According to the information av ailable, the agreement established a new quota for 
high-quality beef based on a specific definition requ irement and with a zero in-quota rate.  Argentina 
understood that that quota would be offered in acco rdance with the MFN principle, but did not know 
how that quota would be administered.  As one of the major exporters of high-quality beef, Argentina 
was concerned about commercial implications of the quota.  Argentina would appreciate receiving 
more details about how the quota wo uld be operated, as well as the assura nces that the quota would be 
operated in a WTO-consistent manner, without impa iring concessions previously negotiated between 
Argentina and the EC.  Argentina reserved its right to revert to this matter, if necessary, after 
receiving more details regarding the quota. 
68. The representative of Uruguay  said that, on 13 May 2009, the EC and the United States had 
signed an agreement relating to the Hormones disput e (DS26).  He noted that despite the amount of 
time that had passed since the rulings had been made  in this dispute, no im plementation had yet taken 
place.  Uruguay was concerned about the agreement reached by the EC and the United States, and 
reserved all its rights in this respect.  Pursuant to  that agreement, and in order to prevent further 
retaliation by the United States – even though such retaliation had been authorized by the DSB – the EC had undertaken to open a quota for 20,000 tonnes of high-quality beef, at zero duty, for three 
years, as of 3 August 2009.  This quota would be to 45,000 tonnes in the fourth year.  In the 
meantime, the United States would not apply furthe r retaliatory measures.  Article VI of the 
Memorandum of Understanding in question defined high-quality beef as only that of the type 
exported by the United States.  There was no justification for maintaining that this specific type of beef, which received preferential treatment, wa s different from other high-quality beef.  This 
constituted discriminatory treatment in favour of a certain origin.  At the present meeting, Uruguay wished to describe in detail the extent of the problem and the way in which its rights might be 
impaired.  The EC's quotas for high-quality beef amounted to 60,000 tonnes.  All Members exporting 
within those quotas must pay an in-quota tariff of 20 per cent ad valorem .  Out-of-quota tariffs were 
around 100 per cent.  The United States accounted for 19 per cent (11,500 tonnes) of these 60,000 tonnes.  If the agreement in question was implemented in such a way that only the 
United States had access to it, the country would be nefit from a quota of 56,500 tonnes, rather than 
11,500 tonnes.  New volumes would enter tariff-free and, therefore, under very different competitive 
conditions from those applicable to all other supplie rs, which must pay 20 per cent if exporting within 
the quota and 100 per cent if outside the quota.  In short, the United States would go from having 19 per cent of access quotas for high-quality beef, to  54 per cent.  Uruguay and all other suppliers 
would be up against a competitor with a single an d exclusive zero tariff preference.  Under those 
circumstances, it was not very difficult to imagin e how this additional quota would operate and which 
suppliers would be pushed aside , including Uruguay whose main export was beef, which accounted 
for around 25 per cent of the total value of its exports.  The importance of the EC market for 
Uruguayan meat exports was indisputable and the EC  had traditionally been the main destination for 
Uruguayan meat exports, in particular high-quality beef. 
69. The justification for the new quota was the EC's n eed to gain experience in the way its market 
would function in the light of an eventual increase in tariff-free trade in high-quality beef.  If this was 
the objective, and the EC wanted to see how its high-quality beef market would perform, it should 
have acted on an MFN basis and be open to all su ppliers.  Uruguay would almost certainly be one of WT/DSB/M/270 
Page 16  
 
those suppliers.  Uruguay's wealth was due to th e production of beef from free-range animals that 
grazed on natural pasture.  Uruguay had a unique system for tracing meat from an animal's birth through to the packaging of cuts.  The system covered all slaughterhouses and was overseen by the 
Ministry of Agriculture, Livestock and Fisheries (at the livestock stage) and by a non-State public 
body, the National Meat Institute (at the pro cessing stage).  Uruguay was able to meet the 
requirements of the most demanding international meat markets in three relevant areas:  product 
safety, animal welfare,  and environmental sustaina bility.  Animals were monitored and certified.  The 
rearing process was guaranteed to be pasture-base d and hormone-free (pursuant to the Law of 1978), 
feed contained no antibiotics or animal proteins (since 1996), and no chlorine was used when cleaning 
and handling livestock at the time of slaughter.  As  far as Uruguay was concerned, having justified the 
logical and legal need for an MFN quota, the existence of "autonomous" quotas with specific 
definitions was nothing new.  However, these quotas stemmed from legitimate negotiations and 
compensation, such as those derived from the implementation of Articles XXIV:6 or XXVIII of the GATT 1994, and were consistent with Article X III of the GATT 1994.  A ll Members with initial 
negotiating rights, principal supplying interest or su bstantial interest were represented and able to 
exercise their rights effectively.  The quota in qu estion, however, would be established bilaterally in 
the context of a dispute in which an award had alre ady been issued and where one of the parties was 
required to comply with the DSB's rulings. 
70. Compensation, as part of a settlement to a dispute, could not be exercised ad libitum  between 
the parties to that dispute.  The parties, followi ng the decision adopted by the DSB, were not free to 
agree to a settlement amongst themselves that would be  to the detriment of third parties.  This would 
undermine the principle of non-discrimination.  Th is was why compensation between the parties was 
regulated by the DSU provisions.  In this regard, Ur uguay highlighted three fundamental issues.  First, 
compensation between the parties could not be  a substitute for compliance with the DSB's 
recommendations.  Second, compensation could only be temporary.  Third, and most importantly, 
temporary compensation must always be lawful and must not entail the nullification or impairment of 
any benefit.  In this case, those conditions did not  seem to have been met.  Under the agreement in 
question, the EC, in the light of its conti nued and prolonged non-compliance with the DSB's 
recommendations, would grant the United States signi ficant compensation to prevent that country 
from applying new and legitimate retaliatory measur es against European exporters.  An agreement of 
that sort must be reached in acco rdance with Article 22.1 of the DSU:  it could only be temporary and 
must be consistent with the WT O Agreements and of a non-discriminatory nature, in accordance with 
Articles I and II of the GATT 1994.  He noted that Article 3.2 of the DSU stated that 
"recommendations and rulings of the DSB cannot a dd to or diminish the rights and obligations 
provided in the covered agreements".  The DSB's ru lings could not add to or diminish rights and 
obligations of Members, and the parties to the disp ute were in even less of a position to do so.  The 
parties' free will was clearly restricted by the exis tence of mandatory rules.  Article 3.5 of the DSU 
stated that "All solutions to matters formally ra ised under the consultation and dispute settlement 
provisions of the covered agreements, including arb itration awards, shall be consistent with those 
agreements and shall not nullify or impair benefits accruing to any Member under those 
agreements...".  Article 22.1 of the DSU stated th at "Compensation and the suspension of concessions 
or other obligations are temporary measures avai lable in the event that the recommendations and 
rulings are not implemented within a reasonable pe riod of time.  However, neither compensation nor 
the suspension of concessions or other obligatio ns is preferred to full implementation of a 
recommendation to bring a measure into conformity with the covered agreements.  Compensation is 
voluntary and, if granted, shall be consistent with  the covered agreements".  Uruguay hoped that the 
duty-free autonomous quota, provided under the EC/US Understanding to producers of a specific type 
of meat, would be applied in accordance with WTO rules, taking into account the rights of those 
Members who were principal suppliers , had a substantial interest or in itial negotiating rights in respect 
of that product to the EC market. 
71. 
The representative of New Zealand  said that this dispute had a long history and New Zealand 
had been a third party throughout.  New Zealand welc omed the active efforts made by the EC and the  WT/DSB/M/270 
 Page 17 
 
 
United States in order to find a solution to this long -running dispute.  She noted that, as part of the 
solution developed, the parties to the dispute had agreed to the establishment of a new tariff-rate quota 
for high-quality beef.  As an exporter of beef into  the EC, New Zealand had a close interest in the 
operation and implementation of that quota an d, like other Members, would be watching 
developments closely.  New Zealand thanked the tw o parties for the information provided with regard 
to the agreement.  Her country would appreciate fu rther details on the quota and the way in which it 
would be operationalized.  This information would be of particul ar assistance to New Zealand in 
analyzing the agreement.  
72. The representative of Paraguay  said that exports of beef constituted an important part of 
Paraguay's exports.  Paraguay had ma de substantive efforts to gain access to the EC's beef market.  
Therefore, as indicated by previous speakers, Pa raguay was concerned about the EC's new tariff-rate 
quota for high-quality beef.  Paraguay wished to ha ve more information on the administration of the 
quota in order to see if the quota was consistent with the EC's WTO obligations.  It was also important to ensure that the quota was not discriminatory agai nst other beef exporters, such as Paraguay, which 
was a land-locked developing country. 
73. The representative of Brazil
 said that his country noted the statements made by Argentina, 
Australia and Uruguay concerning the MOU between the EC and the United States regarding the 
importation of high-quality beef and the Hormones dis pute.  Brazil appreciated the efforts made by 
the parties in searching for a solution to this long-standing dispute, and looked forward to a notification of the MOU to the WTO.  Brazil noted that any solution mutually accepted by the parties, 
by means of this MOU or any further instruments or compensation, must be consistent with the 
covered agreements, including, in particular, the need  to give due respect to the MFN principle, and 
shall not nullify or impair benefits accruing to any Member, nor impede the attainment of any 
objective of those agreements.  In that regard, Brazi l would be following, with the utmost interest, the 
implementation and administration of the tariff-rate quota for high-quality beef provided for under the 
MOU. 
74. The representative of Nicaragua
 said that her country noted the statements made by 
Argentina, Australia and Uruguay and thanked them for the inclusion of this item on the Agenda of 
the present meeting.  Nicaragua noted the concerns ra ised by previous speakers regarding this matter.  
Like others, Nicaragua was also concerned that a bilateral agreement had been reached, which could 
impair the rights of other WTO Members.  Nicara gua wished to have more details concerning the 
MOU and to know how the quota would be implemented.   Nicaragua would be following the situation 
very closely and hoped that this matter would again be discussed in the DSB, and that the parties to 
the dispute would provide more  detailed information.   
75. The representative of India  said that her country noted the statements made by Australia, 
Argentina and Uruguay regarding the MOU reached betw een the EC and the United States.  As a third 
party in the Hormones proceedings, India welcom ed the arrangement between the EC and the 
United States pertaining to this long-standing disp ute.  India believed that the MOU between the 
parties was the first step towards a mutually agreed  solution to the Hormones dispute.  While looking 
forward to see the details of the MOU, pending the notification of the details by the parties, India 
believed that the quota would give access to the EC market for high-quality beef on an MFN basis and 
would be consistent with the WTO Agreement. 
76. The representative of the European Communities  said that, in May 2009, the EC and the 
United States had reached an understanding on the le vel of sanctions applied by the United States in 
the Hormones dispute.  The United States had agreed to lower the level of sanctions applied to EC 
products, and the EC would create market access opportunities for beef by opening a tariff-rate quota 
(TRQ) for high-quality beef on an autonomous and MFN basis.  The TRQ would be non-discriminatory.  The definition would be origin-neu tral.  Any country that produced high-quality beef 
meeting the definition would qualify for import li censes under the new quota.  The EC was planning WT/DSB/M/270 
Page 18  
 
to notify the DSB of this understanding as soon as preparations for its implementations were 
completed, which the EC was expecting by the begi nning of August 2009.  Given the interest of other 
Members, however, the EC was happy to discuss it at the present meeting, even though not every 
detail was available at this st age, since the opening of the autonomous TRQ had not yet been 
finalized.  The EC intended to open a TRQ for a sp ecific segment of beef products which would be 
called, for ease of reference, "high-quality beef".  Such beef would have a special diet and other 
objective characteristics so as to ensure high quality.  Beef meeting the definition of high-quality beef 
would be able to qualify for the quota, irrespective of  its country of origin, provided it also complied 
with the EC's general food law (e.g. labelling, a pproval of establishments, etc).  The TRQ would be 
administered in line with Article XIII of the GATT 1994.  The EC clarified that the TRQ would be a 
new quota, and not linked to the definitions or the implementation of the TRQ for beef opened by the 
EC as part of its Uruguay Round market access co mmitments.  All countries benefiting from this 
other TRQ would continue to do so.  Since the EC was still in the process of drafting and adopting the 
legislation, it could not discuss the exact size or th e TRQ or of the definition.  Such details would be 
made available as soon as the regulations would be finalized.  
77. The representative of the United States
 said that his country recalled the discussion of raising 
this matter at the 20 May 2009 DSB meeting and thanked Argentina, Australia, and Uruguay for 
inscribing this as an item on the Agenda of the present meeting.  The Un ited States noted their 
statements as well as those made by other Members and the EC.  Beef from cattle raised with the 
growth-promoting hormones at issue in this disput e was safe and healthy for consumers.  However, 
the United States was pleased that the United States together with the EC had been able to forge a 
pragmatic way forward in this long-running disput e, and the US thanked the EC for its cooperation 
and hard work in concluding the MOU.  The Unite d States confirmed the EC's statement that the 
MOU provided for the establishment of a tariff-rat e quota for beef that met a definition that was 
origin-neutral.  Any beef that met the definition' s objective requirements on matters such as diet, age 
and quality would be eligible for the quota regard less of origin.  In addition, it was the US 
understanding that the EC intended to implement and administer the quota on a non-discriminatory 
basis.  The United States had long stressed th e importance of flexibility in the WTO dispute 
settlement system.  The ability of the United St ates and the EC to conclude this MOU was a 
demonstration of how that flexibility could be pu t to use by Members to make progress in a long-
running dispute.  The progress made towards reso lving this dispute would seem to reinforce the 
questions previously expressed by a number of Members in the DSB5 about the wisdom and 
appropriateness of the Appellate Body's "recomme ndation" to both parties that they initiate 
proceedings "without delay" under Article 21.5 of the DSU to resolve their disagreement over 
implementation.6  The agreement between the EC and the Un ited States demonstrated that there was a 
better way forward in this disput e than pursuing further litigation. 
78. The representative of Argentina  said that his country thanked the EC for its explanation.  It 
was his delegation's understanding that the EC had clearly asserted that this new quota would not 
affect other quotas for beef opened by the EC  as part of its Uruguay Round market access 
commitments.  Argentina also noted that the United States had confirmed what had been stated by the 
EC, namely, that any beef that met the definition' s objective requirements would be eligible for this 
new quota.  In this regard, Argentina also noted th at different definitions of high-quality beef had 
been agreed by the EC with different exporters.  As a result of the MOU, one single definition with 
certain characteristics had been ag reed upon with the United States and the EC.  Therefore, Argentina 
wished to know how any other third party could meet this particular definition requirement.  
Argentina would be grateful if the EC and the Unite d States could provide, in a timely fashion, more 
details on this issue. 
                                                      
5 See, e.g., WT/DSB/M/258, paras. 9, 23, 26, and 31 (DSB Meeting of 14 November 2008). 
6 Appellate Body Report, "US – Continued Suspension of Obligations in the EC - Hormones Dispute", 
WT/DS320/AB/R, adopted 14 November 2008, para. 737.  WT/DSB/M/270 
 Page 19 
 
 
79. The representative of Uruguay  said that his country supported the statement made by 
Argentina.  Uruguay always welcomed settlement of disputes through conciliatory  channels as well as 
agreements reached by the parties in an effort to resolve their disputes.  However, Uruguay was 
concerned that such bilateral agreements could lead to the impairment of third-party rights.  Uruguay, 
therefore, supported the question raised by Argentin a since the current drafti ng of the MOU regarding 
a definition of high-quality beef might be incompa tible with the MFN principle.  Uruguay would be 
willing to look at any additional information to be provided by the EC, and hoped that any such 
information would confirm the effective implementation of the MFN principle. 
80. The representative of Paraguay  said that his country thanked the EC for its clarification.  
Paraguay was a land-locked small and vulnerable ec onomy and wished to be aware of any practical 
implications of the new quota.  Paraguay had a ta riff difference of 25 to 30 per cent vis-à-vis other 
trading parties, and had to struggle to be able to compete and gain access to the EC market.  He said 
that Paraguay did not object to a solution reached in relation to the Hormones dispute.  However, 
Paraguay hoped that any such a solution would not run counter to the benefits accrued by Paraguay 
and that it would not distort Paraguay's competitiv eness.  Argentina and Uruguay had clearly stated 
their concerns in this regard and Paraguay had the same concerns.  Pa raguay believed that any 
solution must avoid market distortions, and that this  matter should also be discussed in the context of 
the DDA negotiations.  Finally, he said that Paraguay was satisfied that a solution had been reached 
and hoped that that solution would not affect the ri ghts of other WTO Members, nor create injury for 
small and vulnerable economies su ch as that of Paraguay. 
81. The DSB took note  of the statements. 
5. Appointment of Appellate Body members 
82. The Chairman  said that, as announced in the fax sent out to all delegations on 25 May, he 
intended to propose, under the present Agenda item, that  the DSB take several decisions in relation to 
the appointment of Appellate Body members.  Ho wever, before taking up these proposed decisions, 
he first wished to briefly review the process that had led to this point.  He recalled that at its meeting 
of 22 December 2008, the DSB had agreed to the Chairman's proposal on procedures for selecting 
new Appellate Body members.  The proposal consiste d of the following:  (i) to carry out a single 
selection process for the two positions in the Appella te Body to replace Messrs. Luiz Olavo Baptista 
and Giorgio Sacerdoti;  (ii) to set a deadline of 20 March 2009 for Members' nominations of 
candidates for these two positions;  (iii) in light of the exceptional circum stances resulting from the 
early resignation of Mr. Baptista, to deem that th e term of his position woul d expire on 30 June 2009, 
and to agree that this position would be filled for a four-year term;  (iv) to follow the procedures set 
forth in document WT/DSB/1, and, in accordan ce with them, to establish a Selection Committee 
consisting of the Director-General and the 2009 Ch airpersons of the General Council, the Goods 
Council, the Services Council, the TRIPS Council and the DSB, and chaired by the 2009 DSB 
Chairperson;  (v) to request the Selection Committe e to conduct interviews with candidates and to 
hear views of delegations in April and the first half of May 2009, a nd to make its recommendations to 
the DSB by no later than the end of May, so that the DSB could take a final decision by mid-June 2009;  and finally, (vi) to ask the DSB Chairm an to continue to carry out consultations on the 
possible reappointment of Mr. David Unterhalter.  The Chairman also recall ed that, by the agreed 
deadline of 20 March, six candidates had been nomin ated by five different WTO Members.  Curricula 
Vitae of all the candidates had been circulated as Job documents to all dele gations.  Subsequently, 
during the month of April, the Selection Committee ha d conducted interviews with  all six candidates.  
Then, during the month of May, the Committee had me t individually with 46 delegations to hear their 
views on the candidates;  it had also received in wr iting the views of another nine delegations.  To 
arrive at its final recommendations, the Selection Committee had carried out its duties in accordance 
with the guidelines, rules and procedures contai ned in applicable DSU provisions and document 
WT/DSB/1.  Needless to say, the Committee's task  had been challenging given the excellence of all 
the candidates.  He said that, at this point, on behalf of the Committee and the entire WTO WT/DSB/M/270 
Page 20  
 
Membership, he would like to extend his gratitude to  all the candidates who had participated in the 
process and to their respective Governments for nom inating them.  He said that, as a procedural 
matter, he would like to suggest that the DSB first take actions on the proposed decisions, and then he 
would open the floor to delegations who would wish to make statements for the record.  He asked if 
the proposed course of action was acceptable to all delegations.   
83. The DSB so agreed
.  
84. The Chairman  said that, as communicated by fax to all delegations on 25 May 2009, the 
Selection Committee had recommended that Mr. Ricar do Ramírez Hernández of Mexico be appointed 
as a member of the Appellate Body for four years beginning on 1 July 2009, and that Mr. Peter Van den Bossche of the EC be appointed as a member of  the Appellate Body for four years 
beginning on 12 December 2009.  He proposed that the DSB take a decision to accept those 
recommendations of the Selection Committee. 
85. The DSB so agreed
.  
86. The Chairman  said that, based on his consultati ons with delegations and as also 
communicated to all WTO Members on 25 May, he wished to propose that the DSB agree to 
reappoint Mr. David Unterhalter for a four -year term starting on 12 December 2009. 
87. The DSB so agreed .  
88. The Chairman  thanked delegations and said that, before  giving the floor to those delegations 
wishing to make statements, on behalf of the Selection Committee and the entire WTO Membership, 
he thanked all the candidates and their respective Governments, and congratulated Mr. Ramírez and 
Mr. Van den Bossche on their appointments a nd Mr. Unterhalter on his reappointment. 
89. The representative of Mexico  said that, on behalf of his country, he wished to thank the 
Chairman of the DSB and the other members of th e Selection Committee for their work in order to 
come up with their recommendations to fill the two pos itions in the Appellate Body.  This enabled the 
DSB to take a decision at the present meeting on those recommendations.  Mexico also wished to 
thank those delegations who had co me forward with their candidates in this selection process, as well 
as those delegations who had met with the candidat es and had then communicated their views to the 
Selection Committee.  Mexico also wished to th ank the Secretariat for its assistance throughout the 
process.  His country was very proud that, after a very long process during which the DSB provisions 
and the other requirements agreed by Members ha d been respected, a Mexican candidate had now 
become a member of the Appellate Body.  Mexi co recognized that the selection process had been 
difficult due to the competition among high-qual ity candidates, and that any of the presented 
candidates would have been able to do excellent work.  He said that Mexico was certain that 
Mr. Ramírez would do an excellent job and his delega tion, shortly after this meeting, would call to 
congratulate him and to wish him success.  Mexico also wished to thank and congratulate Mr. Van den Bossche on his appointment to the Appellate Body, and thanked the outgoing members of the Appellate Body, Mr. Sacerdoti and Mr. Baptista, for their excellent work they had done for the 
Organization and wished them success in their futu re projects.  Finally, he said that Mexico had 
always expressed its systemic interest in the pr oper functioning of the WTO dispute settlement 
system, and that was why it would continue to ensu re that new members of the Appellate Body were 
persons of recognized authority, with demonstrated  technical expertise, in order to ensure that 
Appellate Body reports were of high quality.  Mexico  also wished to congratulate Argentina, Brazil, 
Costa Rica and the EC for submitting excellent ca ndidates and hoped that any candidates to be 
submitted in future selection processes would also be as of high quality as those proposed in the 
course of the current process.   WT/DSB/M/270 
 Page 21 
 
 
90. The representative of the European Communities  said that the EC thanked all Members who 
had participated in the nomination process for allowing a choice amongst high-quality candidates.  
This was good for the Appellate Body as an institu tion and would strengthen the dispute settlement 
system.  The EC also thanked the Selection Comm ittee and its Chairman for all the work they had 
done.  The EC wished the successful candidates good luck for their challenging tasks as members of 
the Appellate Body, and congratulated Mr. Unte rhalter on his re-appointment to a second term. 
91. The DSB took note  of the statements. 
6. Proposed nomination for the indicative list of governmental and non-governmental 
panelists (WT/DSB/W/406) 
92. The Chairman  drew attention to document WT/DSB/W /406, which contained an additional 
name proposed for inclusion on the indicative list of  governmental and non-governmental panelists, in 
accordance with Article 8.4 of the DSU.  He propo sed that the DSB approve the name contained in 
document WT/DSB/W/406. 
93. The DSB so agreed . 
__________