EUROPEAN COMMUNITIES – REGIME FOR THE IMPORTATION, SALE AND DISTRIBUTION OF BANANAS
Document: Recourse to Article 21.5 of the DSU by Ecuador Communication from Cameroon
Date: 15 March 2007
Document codes: WT/DS27/81
Complainant: Ecuador, Guatemala, Honduras, Mexico, U.S.
Respondent: EU
Third parties: Belize, Cameroon, Canada, Colombia, Costa Rica, Dominica, Dominican, Ghana, Grenada, India, Jamaica, Japan, Mauritius, Nicaragua, Panama, Philippines, Saint Lucia, Saint Vincent and the Grenadines, Senegal, Suriname, Venezuela, Côte d’Ivoire, Brazil, Madagascar
Dispute stage: Mutually Agreed Solution
Agreements cited: Art. I, II, III, X, XI, XIII  GATT 1994Art. 1, 3  Import LicensingArt. II, XVI, XVII  Services (GATS)Art. 2  Trade-Related Investment Measures (TRIMs)Art. 19  Agriculture

EUROPEAN COMMUNITIES – REGIME FOR THE IMPORTATION,
SALE AND DISTRIBUTION OF BANANAS

Recourse to Article 21.5 of the DSU by Ecuador

Communication from Cameroon

 The following communication, dated 8 March 2007, from the delegation of Cameroon to the
Chairman of the Dispute Settlement Body, is circulated at the request of that delegation.

 By letter dated 23 February 2007, the Perman ent Mission of Ecuador to the WTO requested,
on the basis of Article 21.5 of the DSU, that the consistency with GATT Articles I, II and XIII:1 and 2
of the European Communities' regime for the importa tion of bananas be referred for review to the
original Panel, if possible.

 On behalf of my Government, I shoul d like to make the following comments:

1. The agreement reached in April 2001 between the United States and Ecuador, on the
one hand, and the European Communities, on the other, as reflected in the Doha Ministerial
Decision of 14 November 2001, defined a new specif ic procedure in the search for a solution to
any dispute concerning bananas. It was pursuant to this new pro cedure that negotiations were held
early in 2005 with Members exporting to the Eur opean Union on an MFN basis. These negotiations
were carried forward by arbitration in the course of the summer of the same year, and the arbitrators
were required to consider whether "the [...] rebinding of the EC tariff on bananas would result in at
least maintaining total market access for MFN b anana suppliers, taking into account the [...]
EC commitments".
 This is therefore a very different procedure from the one hitherto followed by panels, and the
request submitted by Ecuador on the basis of Article 21.5 of the DSU is therefore legally groundless.

 Moreover, the steps taken by Ecuador since the end of arbitration in the autumn of 2005
consisted in requesting consultati ons under the normal Article 4 procedure, possibly leading to the
Article 6 procedure (reference was also made to th ese provisions in the letter of 23 February 2007),
whereas Article 21.5 does not provide for consultations.

2. We emphasize that recourse to Article 21.5 is justified only "where there is disagreement
as to the existence or consistency with a covered agreement of measures taken to comply with the
recommendations and rulings".

 The agreement in which Ecuador played a decisive part, as reproduced in the Doha
"Ministerial Decision" , particularly the annex thereto, stipulates that: "If the arbitrator determines

that the rebinding would not result in at least main taining total market access for MFN suppliers, the
EC shall rectify the matter".

 The arbitrators decided initially that the level of the tariff which the European Union intended
to adopt would be too high to achieve that objec tive. The Communities modified that level. The
same verdict was rendered on the new proposed tariff. The Communities decided for the third time to
adopt a new tariff, at 176 €/t, which was introduced on 1 January 2006. The European Communities
did, therefore, comply with the recommendations and rulings of the arbitrator.

 A monitoring system was established for the joint review of trends in imports throughout
2006. It confirmed that the new customs tariff in troduced by the European Communities did not have
the effect of impeding total MFN access to the Co mmunity market; on the contrary, the overall
volumes increased substantially. In fact, one again, recourse to Article 21.5 is not justified.

3. Finding no way to attack the duty level of €176 per tonne, Ecuador seeks to shift the
discussion by challenging the preferenti al regime granted to the ACP countries on the ground
that "the modified regime violated GATT Articles I and XIII".

 However, Ecuador negotiated and approved the Doha Decision which, in the Annex relating
specifically to bananas, contains the following sentence: " In the case of bananas, the waiver [of
Article I, paragraph 1] will also apply until 31 December 2007, subject to the following [that is, the
commitment to enter into consultations and to submit to arbitration and follow the arbitrator's
recommendations]".

 This is therefore unacceptable. Indeed, I do not see how the DSB can accept a Member's
request to modify a ministerial decision. Clearly , by means of Article 21.5, Ecuador is seeking to
circumvent that ministerial decision.

 If, by some unlikely chance, the decision were taken to establish a panel, and since it
would be the task of that panel to discuss only the ACP preferential regime, then, Mr Chairman, my
Government would never agree to being granted third party status in the panel's proceedings, as
in the past, and would demand officially to be made a full party.