EUROPEAN COMMUNITIES – SELECTED CUSTOMS MATTERS
Document: Notification of an Other 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 23(1) of the Working Procedures for Appellate Review
Date: 28 August 2006
Document codes: WT/DS315/12
Complainant: U.S.
Respondent: EU
Third parties: Argentina, Australia, Brazil, China, Taiwan, Hong Kong, India, Japan, South Korea
Dispute stage: Appellate Body
Agreements cited: Art. X:3, X:1  GATT 1994

EUROPEAN COMMUNITIES – SELECTED CUSTOMS MATTERS

Notification of an Other 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 23(1) of the Working Procedures for Appellate Review

 The following notification, dated 28 August 2006, from the Delegation of the European
Commission, is being circulated to Members.

Procedures for Appellate Review, the European Co mmunities submits its Notice of Other Appeal on
certain issues of law in the Report of the Panel on
1 and certain legal interpretations developed by the Panel.
2. The European Communities seeks review by the Appellate Body of the following:
(a) the Panel’s decision not to admit certai n evidence submitted by the European
Communities during the interim review stage, and in particular Exhibits EC-167 to
EC-170 (paragraphs 6.5 and 6.6 of the Pane l report). This decision is incompatible
with Article 15.2 of the DSU and with the Panel’s duty to make an objective
assessment of the facts as required by Article 11 of the DSU;
(b) the Panel’s finding regarding the temporal limitations of its terms of reference,
according to which it may consider measures, including acts of administration, which
were no longer in existence, or not yet in existence, at the time of its establishment
(paragraph 7.36 to 7.37 of the Panel Repor t). These findings are inconsistent with
Articles 6.2 and 7.1 of the DSU;
(c) the Panel’s finding that Article X:3(a) GATT requires uniformity of administrative
processes irrespective of their impact on the uniform administration of the laws
(paragraphs 7.102 to 7.113 and 7.119 of the Report). Th is finding is based on an
incorrect interpretation of Article X:3(a) GATT;
(d) the Panel’s finding that Article XXIV:12 GATT cannot be relied upon to attenuate or
to derogate from the provisions of the GATT 1994, including Article X:3 GATT, and
does not constitute an exception from such provisions (paragraphs 7.140 to 7.145 of
the Panel Report). This finding is based on an incorrect interpretation
Article XXIV:12 GATT;

1 WT/DS315/R, circulated on 16 June 2005.

(e) the Panel’s finding that the EC has violated Article X:3(a) GATT with respect to the
process leading to the tariff classification of blackout drapery lining
(paragraphs 7.266 to 7.276, 8.1(b)(iv) and 8.2(a) of the Panel Report). In reaching this
finding, the Panel has erred in its interpreta tion of Article X:3(a) GATT, and failed to
make an objective assessment of the facts as required by Article 11 of the DSU;
(f) the Panel’s finding that the EC has violated Article X:3(a) GATT with respect to the
tariff classification of LCD Monitors with DVI (paragraphs 7.291 to 7.305, 8.1(b)(v)
and 8.2(b) of the Pane l Report). In reaching this finding, the Panel has erred in its
interpretation of Article X:3(a) GATT, and failed to make an objective assessment of
the facts as required by Article 11 of the DSU;
(g) the Panel’s finding that the EC has violated Article X:3(a) GATT with respect to the
imposition by the customs authorities of certain Member States of a form of prior
approval with respect to the successive sales provision (paragraphs 7.376 to 7.385,
8.1(c)(ii) and 8.2(c) of the Panel Report). In reaching this finding, the Panel has erred
in its interpretation of Article X:3(a) GATT, and failed to make an objective
assessment of the facts as required by Article 11 of the DSU.