. /.  WORLD TRADE  
ORGANIZATION  WT/DS265/27 
25 January 2005 
 
 
 (05-0314) 
 Original:   English 
 
 
 
EUROPEAN COMMUNITIES – EX PORT SUBSIDIES ON SUGAR 
 
Notification of an Other Appeal by Australia  
under Article 16.4 and Article 17 of the Understanding on Rules  
and Procedures Governing the Settlement of Disputes (DSU),  
and under Rule 23(1) of the Working Procedures for Appellate Review   
   The following notification, dated 25 January 2 005, from the Delegation of Australia, is being 
circulated to Members. 
 
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 1. Pursuant to Rule 23 of the Working Procedur es for Appellate Review, as adopted by the 
Appellate Body in accordance with the provisi ons of paragraph 9 of Article 17 of the 
Understanding on Rules and Procedures Governing the Settlement of Disputes  (the " DSU "), 
Australia hereby notifies its decision to appeal to the Appellate Body on the basis of errors 
both in certain issues of law covered in the report of the Panel on European Communities – 
Export Subsidies on Sugar  (WT/DS265/R) (the "Panel Report") and in certain legal 
interpretations developed by th e Panel in the Panel Report. 
 
2. Australia seeks appellate review of:  
 
(a)  the Panel's decision, as set out in paragr aphs 7.380-7.387 and in paragraphs 6.14-6.15 
of the Panel Report, to exercise judi cial economy and to decline to examine 
Australia's claims under Articles 3.1(a) and 3.2 of the Agreement on Subsidies and 
Countervailing Measures  ("SCM Agreement "); and 
(b)  the Panel's consequent failure to ma ke a recommendation in accordance with the 
provisions of Article 4.7 of the SCM Agreement .  
 
3. The Panel's decision was based on the following errors of law and legal interpretation: 
 
(i)  that the Panel's findings under the Agreement on Agriculture  should be sufficient to 
fully resolve the matter at  issue (paragraph 7.383); 
(ii)  that there was some issue whether the Panel was entitled to make a recommendation 
to withdraw the measure and to specify  a time period in accordance with the 
provisions of Article 4.7 of the SCM Agreement  in the circumstances before it 
(paragraph 7.384); 
(iii)  that the Panel was not required to rule on Australia's claims under the SCM 
Agreement  "merely in order to obtain what might – but would not necessarily be – 
more rapid compliance" (paragraph 7.384); 
(iv)  that the Panel's exercise of judicial eco nomy did not diminish Australia's rights within 
the meaning of Article 19.2 of the DSU  (paragraph 7.385); and WT/DS265/27 
Page 2  
 
 (v)  the additional considerations in its decisi on to exercise judicial economy, being, in its 
view, that Australia focused on its claims under the Agreement on Agriculture  and 
had not set forth its claims under Article 3 of the SCM Agreement  in quite as clear and 
unambiguous a manner as under the Agreement on Agriculture  (paragraphs 6.15 and 
7.386). 
 
4. In deciding to exercise judicial economy in  respect of Australi a's claims under the SCM 
Agreement , the Panel deprived Australia of its rights in regard to: 
 
- a recommendation, in accordance with Article 4.7 of the SCM Agreement , that those export 
subsidies on sugar found inconsistent with the SCM Agreement  be withdrawn without delay; 
- a recommendation, in accordance with Article 4.7 of the SCM Agreement , specifying a time-
period for withdrawal of the export subsidies in question; 
- taking countermeasures in accordance with  the provisions of Article 4.10 of the SCM 
Agreement  in the event that the subsidies in questio n were not withdrawn within the specified 
time-period; and 
- the application of special or additional ru les and procedures, in accordance with the 
provisions of Article 1.2 and Appendix 2 of the DSU . 
 5. The Panel's decision to exercise judicial economy  also serves to diminish Australia's rights 
under, and is inconsistent with, the provisions of  Articles 1.2, 3.2, 3.4, 3.7 and 19.2 of the 
DSU .  The Panel's decision is also inconsistent with the Panel's duty under Article 11 of the 
DSU  to make such findings as will assist th e DSB in making the recommendations or in 
giving the rulings provided for in the covered agreements. 
 6. Australia requests that the Appellate Body reve rse the Panel's legal fi ndings and conclusions 
in respect of the exercise of judicial economy in regard to the provisions of the SCM 
Agreement .  Australia further requests the Appellate Body to preserve Australia's rights under 
Articles 4.7 and 4.10 of the SCM Agreement , in accordance with Articles 1.2, 3.2 and 19.2 of 
the DSU , by ruling - on the basis of factual findings by the Panel and the undisputed facts on 
the Panel record - on Aust ralia's claims under Articles 3.1(a) and 3.2 of the SCM  Agreement  
and to make the recommendation provided for under Article 4.7 of the SCM Agreement .  
 
7. Australia cites paragraphs 6.14-6.15 and 7.380- 7.387 of the Panel Report as an indicative list 
of paragraphs containing relevant  errors in issues of law and le gal interpretation developed by 
the Panel.  Australia also cites paragraphs 3.4, 3.8, 4.2-4.3, 4.102-4.121, 4.177, 4.232-4.266, 
7.234, 7.237, 7.375-7.381 and 8.1(e) of the Panel Report as an indicative list of paragraphs 
relevant to its request in paragraph 6 above of this Notice of Other Appeal.  
 
8. Australia cites the following legal provisions of the covered agreements as those that the 
Panel erred in interpreting or applying: 
 
- SCM Agreement : Articles 3.1(a) and 3.2, 4.7 and 4.10; 
- Agreement on Agriculture : Article 21.1; and 
- DSU : Article 1.2 and Appendix 2; Articles 3.2, 3.4, 3.7, 11 and 19. 
 
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