EUROPEAN COMMUNITIES – CUSTOMS CLASSIFICATION OF FROZEN BONELESS CHICKEN CUTS
Document: Notification of an Other Appeal by Thailand under Article 16.4 and Article 17 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU), and under Rule 23(1) of the Working Procedures for Appellate Review
Date: 27 June 2005
Document codes: WT/DS286/9
Complainant: Thailand
Respondent: EU
Third parties: Brazil, China, U.S.
Dispute stage: Appellate Body
Agreements cited: Art. II, XXII  GATT 1994

EUROPEAN COMMUNITIES – CUSTOMS CLASSIFICATION OF
FROZEN BONELESS CHICKEN CUTS

Notification of an Other Appeal by Thailand

under Article 16.4 and Article 17 of the Understanding on Rules
and Procedures Governing the Settlement of Disputes (DSU),
and under Rule 23(1) of the Working Procedures for Appellate Review

 The following notification, dated 27 June 2005, from the Delegation of Thailand, is being
circulated to Members.

 Pursuant to Article 17.4 of the Understa nding on Rules and Procedures Governing the
Settlement of Disputes (the "DSU") and Rule 23 of the Appellate Body's Working Procedures for
Appellate Review, Thailand hereby notifies its decisi on to appeal to the Appellate Body certain issues
of law covered in the Panel Report European Communities – Customs Classification of Chicken Cuts ,
, (the "Panel Report") and certain legal interpretations developed by the Panel in that
Report.

Thailand seeks appellate review of:

(a) the Panel's findings and conclusion set out in paragraphs 7.25–7.32, that EC
Regulation No. 1871/2003 and EC Regulation No. 2344/2003 are outside its terms of
reference;

(b) the Panel's findings and conclusion, set out in paragraphs 6.17, 6.18, 7.36 and 7.37,
that the products included in the Panel’s te rms of reference are limited to frozen
boneless chicken cuts impregnated with salt, with a salt content of 1.2%- 3%;

(c) the Panel's findings and conclusion, set out in paragraph 7.223, that all the
"Explanatory Notes" of the Harmonized Syst em cited by Thailand are "non-binding"
and do not further clarify the interpretation of the concession in heading 02.10 of the
EC Schedule; and,

(d) the Panel's findings and conclusion, set out in paragraph 7.238, that General Rule for
the Interpretation of the Harmonised System 3 ("General Rule 3") is not applicable.

The above findings and conclusions are based on the following legal errors:

- the Panel's error in determining the sc ope of its terms of reference with
respect to the measures at issue based on its interpretation, inter alia , that
Thailand's panel request was not broad enough in its formulation to include
EC Regulation No. 1871/2003 and EC Regulation No. 2344/2003. (paras.
7.16–7.32 of the Panel Report);

- the Panel's error in determining the sc ope of its terms of reference with
respect to the products at issue by interpreting that the product at issue is
determined by the measures the Panel cons idered to be within its terms of
reference and not by the product described by Thailand in its request for the
establishment of a panel. (paras. 7.36 and 7.37 of the Panel Report);

- the Panel’s error in applying Article 31 of the Vienna Convention on the Law
of Treaties with respect to its analysis of relevant aspects of the Harmonized
System for the interpretation of the concession in heading 0210 of the EC
Schedule. In particular, Thailand cons iders that the Panel erred in finding
that the HS Explanatory Notes to head ing 02.10 and Chapter 2 and the Note
to Chapter 16 are not helpful to clarify the ordinary meaning of the term
"salted" in the concession contained in heading 02.10 of the EC Schedule.
Thailand also considers that the Panel incorrectly characterised the Note to
Chapter 16 as an Explanatory Note when it is in fact a Chapter Note that
forms part of the Harmonized System and is therefore binding. (paras. 7.206–
7.223 of the Panel Report); and

- the Panel's error in deciding not to apply General Rule 3. The Panel
improperly relied on the parties' position th at – in their view – the product at
issue does not fall prima facie under two or more head ings and consequently
erred in failing to provide its own anal ysis of whether the product at issue
prima facie falls under two or more headings. (paras. 7.224–7.241.)

Thailand requests the Appellate Body to review the above findings or conclusions of the
Panel. The provisions of the Marrakesh Agreement Establishing the WTO that Thailand considers the
Panel to have erroneously inte rpreted or applied are heading 0210 of the EC Schedule read in
conjunction with Article II:1(a) and II:1(b) of the GATT 1994, as well as Article 3.7, 6.2 and Article 7
of the DSU.