WORLD TRADE  
ORGANIZATION  WT/DS320/12 
WT/DS321/12 2 June 2008 
 
(08-2559) 
 Original:   English 
  
UNITED STATES – CONTINUED SUSPENSION OF OBLIGATIONS IN THE 
EC – HORMONES DISPUTE 
 
CANADA – CONTINUED SUSPENSION OF OBLIGATIONS IN THE 
EC – HORMONES DISPUTE 
 
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 29 May 200 8, from the Delegation of the European 
Commission, is being circulated to Members.  
_______________ 
  
 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 . 
 
1. Pursuant to Article 16.4 and Article 17 of the DSU and to Rule 20.1 of the Working 
Procedures for Appellate Review , the European Communities submits its Notice of Appeal on certain 
issues of law covered in the Reports of the Panels in DS320, United States – Continued Suspension of 
Obligations in the EC – Hormones  Dispute  and DS321, Canada – Continued Suspension of 
Obligations in the EC – Hormones  Dispute  and certain legal interpretati ons developed by the Panels 
in those Reports. 
2. The European Communities seeks review by the Appellate Body of the following errors of 
law and legal interpretation containe d in the Reports of the Panels: 
(a)  The Panels incorrectly interpreted and app lied the words "recourse to dispute settlement in 
accordance with the rules and procedures of this  Understanding" in Article 23.2(a) of the 
DSU in the presence of an implementation measure in a post-retaliation situ ation.  This is due 
principally to the Panels' incorrect interpreta tion of Article 21.5 of the DSU.  The Panels' 
errors are contained in particular in paragra phs 7.246 to 7.249 and 7.346 to 7.359 of the Panel 
Report in DS320 and paragraphs 7.239 to 7.242 and 7.344 to 7.357 of the Panel Report in 
DS321. 
(b)  The Panels erred in failing to make a proper finding of violation of Article 23.1 read together 
with Article 22.8 and 3.7 of the DSU when stating that "to the extent the measure found to be 
inconsistent with the SPS Agreement  in the EC – Hormones dispute … has not been removed 
by the European Communities, [t he United States and Canada] have not breached Article 22.8 
of the DSU; and to the extent that Artic le 22.8 has not been breached, the European 
Communities has not established a violation of Articles 23.1 and 3.7 of the DSU as a result of WT/DS320/12 
WT/DS321/12 Page 2 
 
 
a breach of Article 22.8". This error is due to the Panels' incorrect interpretation of 
Article 22.8 of the DSU and in particular the words "the measure found to be inconsistent 
with a covered agreement has been removed"  therein.  The Panels' conclusion and the 
corresponding reasoning are contained in paragr aphs 7.857 and 7.252 to  7.386 of the Panel 
Report in DS320 and paragraphs 7.842 and 7.2 45 to 7.383 of the Panel Report in DS321. 
(c)  The Panels went beyond their terms of reference and assumed the function of Article 21.5 
DSU panels contrary to Articles 7 and 21.5 of the DSU.  This appears in particular in paragraph 8.3 of the two Panel Reports and paragraphs 7.150 to 7.182, 7.270 to 7.291 
and 7.360 to 7.379 of the Panel Report in DS320 and paragraphs 7.137 to 7.164, 7.286 to 
7.307 and 7.358 to 7.376 of the Panel Report in DS321. 
(d)  The Panels failed to respect the fundamental principle of due process when selecting and 
taking the advice of scientific experts under Articles 13.2 of the DSU and 11.2 of the SPS 
Agreement  with the result that the Panels failed to  make an objective assessment of the matter 
before them in breach of Article 11 of the DSU.  This appears in particular in paragraphs 7.55 
to 7.99 and 6.21 to 6.25 and the subsequent analysis of the Panel under the SPS Agreement  in 
paragraphs 7.387 to 7.846 of the Panel Report in DS320 and paragraphs 7.53 to 7.96 and the 
subsequent analysis of the Panel under the SPS Agreement  in paragraphs 7.384 to 7.831 of the 
Panel Report in DS321. 
(e)  The Panels failed to correctly  determine and apply the standard  of review under in particular 
Articles 5.1 and 5.7 of the SPS Agreement  in breach thereof and in breach of Article 11 of the 
DSU.  The Panels seriously mischaracterised and misinterpreted the evidence on which the 
European Communities based itself and conducted a de novo  review of the matter before them 
and inter alia  failed to take into account or properly evaluate the scientific basis of the 
European Communities' measure.  They also faile d to attach proper legal relevance to genuine 
uncertainties and scientific controversies on the matter before them and arbitrarily chose 
between the opinions of their experts and those pr esented by the other parties to the disputes.  
The Panels also relied incorrectly on the opinion s of Codex Alimentarius and JECFA.  This 
appears inter alia  in paragraphs 7.412 to 7.427 and pa ragraphs 7.435 to 7.846 of the Panel 
Report in DS320 and paragraphs 7.403 to 7.418 and paragraphs 7.426 to 7.831 of the Panel 
Report in DS321. 
(f)  The Panels failed to correctly determin e and apply the burden of proof under the SPS 
Agreement and in particular Articles 5.1 and 5.7 thereof .  The Panels imposed the burden of 
proof on the European Communities to prove the consistency of its measure with the SPS 
Agreement  and in particular Articles 5.1 and 5.7 th ereof.  This appears in particular in 
paragraphs 7.380 to 7.386 and pa ragraphs 7.435 to 7.846 of the Panel Report in DS320 and 
paragraphs 7.377 to 7.383 and paragraphs 7.426 to 7.831 of the Panel Report in DS321. 
(g)  The Panels incorrectly interpre ted and applied Article 5.1 of the SPS Agreement  and failed to 
make an objective assessment of the matter before them in breach of Article 11 of the DSU.  
The Panels erroneously adopted an overly rest rictive notion of "an assessment, as appropriate 
to the circumstances, of the risk" under Article 5.1 of the SPS Agreement as informed by 
Article 5.2 thereof, ignored that the EC ri sk assessments had focussed on and addressed the 
particular risk at stake and required that th e risk be quantified.  The Panels' erroneous 
assessments arose out of its application of an in appropriate standard of review, as set out in 
paragraph (e) above.  In particular, it arbitrarily chose between the opinions of their scientific 
experts in their review of the matter before them .  This appears in particular in paragraphs 
7.435 to 7.579 of the Panel Report in DS320 and paragraphs 7.426 to 7.549 of the Panel 
Report in DS321.  WT/DS320/12 
WT/DS321/12 
Page 3 
 
 
(h)  The Panels incorrectly interpre ted and applied Article 5.7 of the SPS Agreement  and failed to 
make an objective assessment of the matter before them in breach of Article 11 of the DSU.  
The Panels incorrectly interpreted the relationshi p of Article 5.7 with the other provisions of 
the SPS Agreement  and in particular Articles 3.2, 3.3 and 5.1 thereof and adopted and applied 
an erroneous criterion of critical mass of new scientific evidence and/or information for the 
purposes of applying Article 5.7.  The Pa nels' erroneous assessments arose out of its 
application of an inappropriate standard of review, as set out in pa ragraph (e) above.  In 
particular, it arbitrarily chose between the opinions  of its scientific experts in their review of 
the matter before them.  This appears in particul ar in paragraphs 7.580 to 7.837 of the Panel 
Report in DS320 and paragraphs 7.550 to  7.823 of the Panel Report in DS321. 
(i)  The Panels erred in making a suggestion that insufficiently clarifies the implications of their 
findings contrary to Article 3.7 and 19.1 of the DS U.  This appears in particular in paragraphs 
8.2 and 8.3 of the Panel Reports. 
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