EUROPEAN COMMUNITIES – CUSTOMS CLASSIFICATION OF FROZEN BONELESS CHICKEN CUTS
Document: Notification of an Other Appeal by Brazil 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/DS269/7
Complainant: Brazil
Respondent: EU
Third parties: China, Thailand, U.S.
Dispute stage: Appellate Body
Agreements cited: Art. II:1, XXIII  GATT 1994

EUROPEAN COMMUNITIES – CUSTOMS CLASSIFICATION OF
FROZEN BONELESS CHICKEN CUTS

Notification of an Other Appeal by Brazil

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 Brazil, is being
circulated to Members.

Pursuant to Articles 16 and 17 of the Understanding on Rules and Procedures Governing the
Settlement of Disputes (DSU) and Rule 23 of the Working Pr ocedures for Appellate Review, Brazil
hereby notifies its decision to appeal certain issu es of law and legal interp retation contained in the
Panel report in European Communities – Customs Classifica tion of Frozen Boneless Chicken Cuts

Brazil seeks appellate review of:

1) The Panel’s Term of Reference

a) The Panel's conclusion that EC Regulati on No. 1871/2003 and EC Regulation No.
2344/2003 are measures outside
 the Panel’s terms of reference 1 based, inter alia, on
its interpretation that Brazil’s Panel requ est was not broad enough to include EC
Regulation No. 1871/2003 and EC Regulation No. 2344/2003. 2 This conclusion was
based on an erroneous interpretation of Articles 6.2 and 7 of the DSU.

b) The Panel’s conclusion that the product within its terms of reference is “ frozen
boneless chicken cuts impregnated with a salt content of 1.2%-3% ”.3 In particular, the
Panel’s interpretation that the product at issue is determined by the measures
considered by the Panel to be within it s terms of reference and not by the product
described in Brazil’s Panel request 4 is not consistent with Articles 6.2 and 7 of the
DSU.

2) Contextual Interpretation of the EC Schedule: Harmonized System (HS)

1 Panel Report, paras. 6.15 and 7.32.
2 Panel Report, paras. 6.9, 6.13, 7.28 and 7.29.
3 Panel Report, paras. 6.16-6.18 and 7.36.
4 Panel Report, paras. 6.18 and 7.36.

a) The Panel’s conclusion that the evolution of the terms and structure of Chapter 2 of
the Harmonized System (HS) do not clarify the meaning of the concession contained
in heading 0210 of the EC Schedule,
5 specifically in view of its finding that the
evolution of the terms and structure does not indicate that the predecessor to HS
heading 0210 was characterized by the notion of “preparation” and not
“preservation”.
6

b) The Panel’s conclusion that the HS Notes and Explanatory Notes do not clarify the
meaning of the concession contained in heading 0210 of the EC Schedule. 7 I n
particular, the finding that the HS Explanatory Notes to heading 0210 and Chapter 2
and the HS Notes to Chapter 16 do not help in the interpretation of heading 0210
because the terms “preparation” and “preservation” may not be mutually exclusive in
the context of heading 0210.8

c) The Panel’s decision not to apply General Rule 3 in the interpretation of heading 0210
based on its improper reliance on and acceptance of the parties’ alleged position that -
within their analysis – the products at issue are not prima facie classifiable under two
or more headings.9

d) The Panel’s overall conclusion that the HS does not further clarify the interpretation
of the concession contained in heading 0210 of the EC Schedule, in so far as this
conclusion was based on the Panel’s flawed interpretations of the evolution of the
terms and structure of HS Chapter 2; th e HS [Explanatory] Notes to Chapter 2,
heading 0210 and Chapter 16; and the application of General Rule 3.10

Brazil requests that the Appellate Body reverse the conclusions and findings listed above. In
the event the Appellate Body reverses the Panel’ s decision not to apply General Rule 3, Brazil
requests that the Appellate Body complete the lega l analysis by examining Brazil’s claim that the
application of General Rule 3 leads to the classi fication of the product under heading 0210 on the
basis of the Panel’s factual findings and the facts on the record.

The provisions of the WTO Agreement that Brazi l considers the Panel to have erroneously
interpreted or applied are Articles 6.2 and 7 of th e DSU and heading 0210 of the EC Schedule read in
conjunction with Articles II:1(a) and II:1(b) of the GATT 1994.