TURKEY – ADDITIONAL DUTIES ON CERTAIN PRODUCTS FROM THE UNITED STATES REPORT OF THE PANEL
Document: REPORT OF THE PANEL
Date: 19 December 2023
Document codes: WT/DS561/R
Complainant: U.S.
Respondent: Turkey
Third parties: Brazil, Canada, China, EU, Guatemala, India, Indonesia, Japan, Kazakhstan, Mexico, New Zealand, Norway, Russia, Singapore, Switzerland, Taiwan, Thailand, Ukraine, Venezuela
Dispute stage: Panel
Agreements cited: Art. I:1, II:1(a), II:1(b)  GATT 1994

TURKEY – ADDITIONAL DUTIES ON CERTAIN PRODUCTS FROM
THE UNITED STATES
REPORT OF THE PANEL

LIST OF ANNEXES
ANNEX A
WORKING PROCEDURES OF THE PANEL
Contents Page
Annex A-1 Working Procedures of the Panel 4
Annex A-2 Additional Working Procedures Concerning Substantive Meetings with Remote
Participation
11
ANNEX B
ARGUMENTS OF THE PARTIES
Contents Page
Annex B-1 Integrated executive summary of the arguments of the United States 15
Annex B-2 Integrated executive summary of the arguments of Türkiye 36
ANNEX C
ARGUMENTS OF THE THIRD PARTIES
Contents Page
Annex C-1 Integrated executive summary of the arguments of China 52
Annex C-2 Integrated executive summary of the arguments of the European Union 56
Annex C-3 Integrated executive summary of the arguments of Japan 61
Annex C-4 Integrated executive summary of the arguments of New Zealand 64
Annex C-5 Integrated executive summary of the arguments of Norway 65
Annex C-6 Integrated executive summary of the arguments of the Russian Federation 69
Annex C-7 Integrated executive summary of the arguments of Switzerland 73
Annex C-8 Integrated executive summary of the arguments of Ukraine 77
ANNEX D
COMMUNICATION BY THE PANEL ON REQUESTS FOR ENHANCED THIRD-PARTY RIGHTS
Contents Page
Annex D-1 Communication by the Panel on requests for enhanced third-party rights 80
ANNEX E
TABLE OF RELEVANT DUTY RATES
Contents Page
Annex E-1 Table of relevant duty rates 83

CASES CITED IN THIS REPORT
Short Title Full Case Title and Citation
Argentina – Financial Services Appellate Body Report, Argentina – Measures Relating to Trade in Goods and
Services, and Add.1, adopted 9 May 2016, DSR 2016:II,
p. 431
Argentina – Textiles and
Apparel
Appellate Body Report, Argentina – Measures Affecting Imports of
Footwear, Textiles, Apparel and Other Items , and Corr.1,
adopted 22 April 1998, DSR 1998:III, p. 1003
Canada – Autos Panel Report, Canada – Certain Measures Affecting the Automotive
Industry, WT/DS139/R, WT/DS142/R, adopted 19 June 2000, as modified
by Appellate Body Report WT/DS139/AB/R, WT/DS142/AB/R,
DSR 2000:VII, p. 3043
Chile – Price Band System Appellate Body Report, Chile – Price Band System and Safeguard Measures
Relating to Certain Agricultural Products , WT/DS207/AB/R, adopted
23 October 2002, DSR 2002:VIII, p. 3045 (Corr.1, DSR 2006:XII, p. 5473)
China – Auto Parts Appellate Body Reports, China – Measures Affecting Imports of Automobile
Parts, WT/DS339/AB/R / WT/DS340/AB/R / WT/DS342/AB/R, adopted
12 January 2009, DSR 2009:I, p. 3
China – Auto Parts Panel Reports, China – Measures Affecting Imports of Automobile Parts ,
WT/DS339/R, Add.1 and Add.2 / WT/DS340/R, Add.1 and Add.2 /
WT/DS342/R, Add.1 and Add.2, adopted 12 January 2009, upheld
(WT/DS339/R) and as modified (WT/DS340/R / WT/DS342/R) by
Appellate Body Reports WT/DS339/ AB/R / WT/DS340/AB/R /
WT/DS342/AB/R, DSR 2009:I, p. 119
China – Publications and
Audiovisual Products
Panel Report, China – Measures Affecting Trading Rights and Distribution
Services for Certain Publications and Audiovisual Entertainment Products ,
WT/DS363/R and Corr.1, adopted 19 January 2010, as modified by
Appellate Body Report WT/DS363/AB/R, DSR 2010:II, p. 261
China – Raw Materials Panel Reports, China – Measures Related to the Exportation of Various Raw
Materials, WT/DS394/R, Add.1 and Corr.1 / WT/DS395/R, Add.1 and
Corr.1 / WT/DS398/R, Add.1 and Corr.1, adopted 22 February 2012, as
modified by Appellate Body Reports WT/DS394/AB/R / WT/DS395/AB/R /
WT/DS398/AB/R, DSR 2012:VII, p. 3501
China – TRQs Panel Report, China – Tariff Rate Quotas for Certain Agricultural Products,
WT/DS517/R and Add.1, adopted 28 May 2019
Colombia – Ports of Entry Panel Report, Colombia – Indicative Prices and Restrictions on Ports of
Entry, WT/DS366/R and Corr.1, adopted 20 May 2009, DSR 2009:VI,
p. 2535
Colombia – Textiles Appellate Body Report, Colombia – Measures Relating to the Importation
of Textiles, Apparel and Footwear , WT/DS461/AB/R and Add.1, adopted
22 June 2016, DSR 2016:III, p. 1131
Dominican Republic – Import
and Sale of Cigarettes
Appellate Body Report, Dominican Republic – Measures Affecting the
Importation and Internal Sale of Cigarettes , WT/DS302/AB/R, adopted
19 May 2005, DSR 2005:XV, p. 7367
Dominican Republic – Import
and Sale of Cigarettes
Panel Report, Dominican Republic – Measures Affecting the Importation
and Internal Sale of Cigarettes , WT/DS302/R, adopted 19 May 2005, as
modified by Appellate Body Report WT/DS302/AB/R, DSR 2005:XV, p.
7425
Dominican Republic –
Safeguard Measures
Panel Report, Dominican Republic – Safeguard Measures on Imports of
Polypropylene Bags and Tubular Fabric , WT/DS415/R, WT/DS416/R,
WT/DS417/R, WT/DS418/R, and Add.1, adopted 22 February 2012,
DSR 2012:XIII, p. 6775
EC – Chicken Cuts Appellate Body Report, European Communities – Customs Classification of
Frozen Boneless Chicken Cuts , WT/DS269/AB/R, WT/DS286/AB/R,
adopted 27 September 2005, and Corr.1, DSR 2005:XIX, p. 9157
EC – Chicken Cuts Panel Reports, European Communities – Customs Classification of Frozen
Boneless Chicken Cuts , WT/DS269/R (Brazil) / WT/DS286/R (Thailand),
adopted 27 September 2005, as modified by Appellate Body Report
WT/DS269/AB/R, WT/DS286/AB/R, DSR 2005:XIX , p. 9295 /
DSR 2005:XX, p. 9721
EC – IT Products Panel Reports, European Communities and its member States – Tariff
Treatment of Certain Information Technology Products , WT/DS375/R /
WT/DS376/R / WT/DS377/R, adopted 21 September 2010, DSR 2010:III,
p. 933
EC – Seal Products Appellate Body Reports, European Communities – Measures Prohibiting
the Importation and Marketing of Seal Products , WT/DS400/AB/R /
WT/DS401/AB/R, adopted 18 June 2014, DSR 2014:I, p. 7

Short Title Full Case Title and Citation
EC – Selected Customs Matters Appellate Body Report, European Communities – Selected Customs
Matters, WT/DS315/AB/R, adopted 11 December 2006, D SR 2006:IX,
p. 3791
India – Additional Import Duties Appellate Body Report, India – Additional and Extra -Additional Duties on
Imports from the United States, WT/DS360/AB/R, adopted
17 November 2008, DSR 2008:XX, p. 8223
Indonesia – Autos Panel Report, Indonesia – Certain Measures Affecting th e Automobile
Industry, WT/DS54/R, WT/DS55/R, WT/DS59/R, WT/DS64/R, Corr.1 and
Corr.2, adopted 23 July 1998, and Corr.3 and Corr.4, D SR 1998:VI,
p. 2201
Indonesia – Iron or Steel
Products
Appellate Body Report, Indonesia – Safeguard on Certain Iron or Steel
Products, WT/DS490/AB/R, WT/DS496/AB/R, and Add.1, adopted
27 August 2018, DSR 2018:VII, p. 3393
Russia – Tariff Treatment Panel Report, Russia – Tariff Treatment of Certain Agricultural and
Manufacturing Products, WT/DS485/R, Add.1, Corr.1, and Corr.2, adopted
26 September 2016, DSR 2016:IV, p. 1547
Saudi Arabia – IPRs Panel Report, Saudi Arabia – Measures Concerning the Protection of
Intellectual Property Rights , WT/DS567/R and Add.1, circulated to WTO
Members on 16 June 2020, dispute terminated while appeal pending
US – Certain EC Products Appellate Body Report, United States – Import Measures on Certain
Products from the European Communities, WT/DS165/AB/R, adopted
10 January 2001, DSR 2001:I, p. 373
US – Large Civil Aircraft (2nd
complaint) (Article 21.5 – EU)
Panel Report, United States – Measures Affecting Trade in Large Civil
Aircraft (Second Complaint) – Recourse to Article 21.5 of the DSU by the
European Union, WT/DS353/RW and Add.1, adopted 11 April 2019, as
modified by Appellate Body Report WT/DS353/AB/RW, DSR 201 9:V,
p. 2171
US – Line Pipe Appellate Body Report, United States – Definitive Safeguard Measures on
Imports of Circular Welded Carbon Quality Line Pipe from Korea ,
WT/DS202/AB/R, adopted 8 March 2002, DSR 2002:IV, p. 1403
US – Poultry (China) Panel Report, United States – Certain Measures Affecting Imports of
Poultry from China, WT/DS392/R, adopted 25 October 2010, DSR 2010:V,
p. 1909
US – Renewable Energy Panel Report, United States – Certain Measures Relating to the Renewable
Energy Sector , WT/DS510/R and Add.1, circulated to WTO Members
27 June 2019, appealed 15 August 2019
US – Steel and Aluminium
Products (Turkey)
Panel Report, United States – Certain Measures on Steel and Aluminium
Products, WT/DS564/R, Add.1 and Suppl.1, circulated to WTO Members
9 December 2022, appealed 26 January 2023
US – Steel Safeguards Appellate Body Report, United States – Definitive Safeguard Measures on
Imports of Certain Steel Products , WT/DS248/AB/R, WT/DS249/AB/R,
WT/DS251/AB/R, WT/DS252/AB/R, WT/DS253/AB/R, WT/DS254/AB/R,
WT/DS258/AB/R, WT/DS259/AB/R, adopted 10 December 2003,
DSR 2003:VII, p. 3117
US – Tariff Measures (China) Panel Report, United States – Tariff Measures on Certain Goods from
China, WT/DS543/R and Add.1, circulated to WTO Mem bers
15 September 2020, appealed 26 October 2020
US – Upland Cotton Appellate Body Report, United States – Subsidies on Upland Cotton ,
WT/DS267/AB/R, adopted 21 March 2005, DSR 2005:I, p. 3
US – Zeroing (Japan)
(Article 21.5 – Japan)
Appellate Body Report, United States – Measures Relating to Zeroing and
Sunset Reviews – Recourse to Article 21.5 of the DSU by Japan ,
WT/DS322/AB/RW, adopted 31 August 2009, DSR 2009:VIII, p. 3441

EXHIBITS REFERRED TO IN THIS REPORT
Panel Exhibit Title Short title (where
applicable)
USA-1, TUR-41 Decree on Additional Duties on the Importation of Certain
Products Originated from the United States of America,
Council of Ministers Decree No. 11973/2018, Official Gazette
No. 30459(bis) (25 June 2018)
Implementation Decree
USA-2, TUR-42 Decision Amending the Decree On Additional Duties on the
Importation of Certain Products Originated from the
United States of America, Presidential Decision No. 21,
Official Gazette No. 30510 (15 August 2018)
First Amendment
USA-6 United States' Table Presenting Tariff Lines and Bound Rates
Affected By Türkiye's Measure from 21 June 2018 to
14 August 2018

USA-7 United States' Table Presenting Tariff Lines and Bound Rates
Affected By Türkiye's Measure from 15 August 2018 to
31 December 2018

USA-8 United States' Table Presenting Tariff Lines and Bound Rates
Affected By Türkiye's Measure beginning on 1 January 2019

USA-10, TUR-1 Trade Expansion Act, Public Law No. 87–794, 76 Stat. 877
(1962), United States Code, Title 19, Section 1862
Section 232
USA-16, TUR-2 United States Code of Federal Regulations, Title 15, Part 705
USA-21, TUR-3 United States Department of Commerce, Bureau of Industry
and Security, Office of Technology Evaluation, The Effect of
Imports of Steel on the National Security, An Investigation
Conducted under Section 232 of the Trade Expansion Act of
1962, as Amended (11 January 2018)
Section 232 investigation
into steel imports
USA-22, TUR-4 United States Department of Commerce, Bureau of Industry
and Security, Office of Technology Evaluation, The Effect of
Imports of Aluminum on the National Security, An
Investigation Conducted under Section 232 of the Trade
Expansion Act of 1962, as Amended (17 January 2018)
Section 232 investigation
into aluminium imports
USA-23, TUR-6 Proclamation 9705 of 8 March 2018, Adjusting Imports of
Steel Into the United States, United States Federal Register,
Vol. 83, No. 51 (15 March 2018), p. 11625
Proclamation 9705
USA-24, TUR-7 Proclamation 9704 of 8 March 2018, Adjusting Imports of
Aluminum Into the United States, United States Federal
Register, Vol. 83, No. 51 (15 March 2018), p. 11619
Proclamation 9704
USA-25, TUR-8 Proclamation 9711 of 22 March 2018, Adjusting Imports of
Steel Into the United States, United States Federal Register,
Vol. 83, No. 60 (28 March 2018), p. 13361
Proclamation 9711
USA-26, TUR-9 Proclamation 9710 of 22 March 2018, Adjusting Imports of
Aluminum Into the United States, United States Fede ral
Register, Vol. 83, No. 60 (28 March 2018), p. 13355
Proclamation 9710
USA-27, TUR-10 Proclamation 9740 of 30 April 2018, Adjusting Imports of
Steel Into the United States, United States Federal Register,
Vol. 83, No. 88 (7 May 2018), p. 20683
Proclamation 9740
USA-28, TUR-11 Proclamation 9739 of 30 April 2018, Adjusting Imports of
Aluminum Into the United States, United States Federal
Register, Vol. 83, No. 88 (7 May 2018), p. 20677
Proclamation 9739
USA-29, TUR-12 Proclamation 9759 of 31 May 2018, Adjusting Imports of
Steel Into the United States, United States Federal Register,
Vol. 83, No. 108 (5 June 2018), p. 25857
Proclamation 9759
USA-30, TUR-13 Proclamation 9758 of 31 May 2018, Adjusting Imports of
Aluminum Into the United States, Uni ted States Federal
Register, Vol. 83, No. 108 (5 June 2018), p. 25849
Proclamation 9758
USA-31, TUR-14 Proclamation 9772 of 10 August 2018, Adjusting Imports of
Steel Into the United States, United States Federal Register,
Vol. 83, No. 158 (15 August 2018), p. 40429
Proclamation 9772
USA-32, TUR-15 Proclamation 9777 of 29 August 2018, Adjusting Imports of
Steel Into the United States, United States Federal Register,
Vol. 83, No. 171 (4 September 2018), p. 45025
Proclamation 9777
USA-33, TUR-16 Proclamation 9776 of 29 August 2018, Adjusting Imports of
Aluminum Into the United States, United States Federal
Register, Vol. 83, No. 171 (4 September 2018), p. 45019
Proclamation 9776

Panel Exhibit Title Short title (where
applicable)
USA-35 Submissions of Exclusion Requests and Objections to
Submitted Requests for Steel and Aluminum, United States
Federal Register, Vol. 83, No. 176 (11 September 2018),
p. 46026
BIS rule of
11 September 2018
USA-55 Consolidated Tariff Schedule file of Türkiye CTS file of Türkiye
USA-56 Türkiye's 2018 Import Table (Decision No. 2017/11168 -
Additional Decision to the Import Regime Decision, issued on
25 December 2017)
Türkiye's 2018 Import
Table
USA-57 Türkiye's 2019 Import Table, as attached to USA-5 (Decision
No. 517 - Additional Decision to the Import Regime Decision,
issued on 27 December 27 2018)
Türkiye's 2019 Import
Table
USA-58 Excerpts of graphs from WTO-WCO HS Tracker, Subheading
Visualizer tool, HS2002 to HS2017 correlations for certain
tariff headings
Excerpts of graphs from
WTO-WCO HS Tracker
USA-59 World Customs Organization correlation tables HS2012 to
HS2017 (Table 1)
WCO correlation tables
HS2012 to HS2017 (1)
USA-60 World Customs Organization correlation tables HS2012 to
HS2017 (Table 2)
WCO correlation tables
HS2012 to HS2017 (2)
TUR-19 Memorandum from the United States Secretary of Defense,
Memorandum for Secretary of Commerce responding to the
Steel and Aluminum Policy Recommendations
United States Secretary of
Defense Memorandum
TUR-43 Presidential Decision No. 1130 Amending the Decree on
Additional Duties on the Importation of Certain Products
Originated from the United States of America, Official
Gazette No. 30781 (22 May 2019)
Second Amendment
TUR-44 Proclamation 9894 of 19 May 2019, Adjusting Imports of
Steel Into the United States, United States Federal Register,
Vol. 84, No. 100 (23 May 2019), p. 23987
Proclamation 9894
TUR-45 Proclamation 9893 of 19 May 2019, Adjusting Imports of
Aluminum Into the United States, United States Federal
Register, Vol. 84, No. 100 (23 May 2019), p. 23983
Proclamation 9893
TUR-46 Proclamation 9886 of 16 May 2019, Adjusting Imports of
Steel Into the United States, United States Federal Register,
Vol. 84, No. 98 (21 May 2019), p. 23421
Proclamation 9886

ABBREVIATIONS USED IN THIS REPORT
Abbreviation Description
CTS Consolidated Tariff Schedule
DSB Dispute Settlement Body
DSU Understanding on Rules and Procedures Governing the Settlement of Disputes
GATT 1994 General Agreement on Tariffs and Trade 1994
HS2002 Harmonized System Nomenclature 2002
HS2007 Harmonized System Nomenclature 2007
HS2012 Harmonized System Nomenclature 2012
HS2017 Harmonized System Nomenclature 2017
IDB Integrated Database
MFN Most-Favoured Nation
WCO World Customs Organization
WTO Agreement Marrakesh Agreement Establishing the World Trade Organization

1 INTRODUCTION
1.1 Complaint by the United States
1.1. On 16 July 2018, the United States requested consultations with Türkiye1 pursuant to Article 4
of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) and
Article XXIII of the General Agreement on Tariffs and Trade 1994 (GATT 1994). The consultations
request concerned Türkiye's imposition of additional duties on certain products originating in the
United States. The United States indicated that these additional duties were imposed through legal
instruments including Türkiye's Decree No. 11973/2018 on Additional Duties on the Importation of
Certain Products Originated from the United States of America, Official Gazette No. 30459(bis),
25 June 2018 (Implementation Decree)2, as well as any amendments, replacements, related
measures, or implementing measu res. In its consultations request, the United States referred to
these additional duties as the "additional duties measure".3
1.2. Consultations were held on 29 August 2018, but failed to resolve the dispute.
1.3. On 18 October 2018, the United States sent Türkiye a second request for consultations
pursuant to Article 4 of the DSU and Article XXIII of the GATT 1994, which supplemented its earlier
consultations request. This supplementary consultations request concerned "the amended additional
duties measure"4, which resulted from an increase in the duty rates implemented by Türkiye through
the Decision Amending the Decree On Additional Duties on the Importation of Certain Products
Originated from the United States of America, Presidential Decision No. 21, Official G azette
No. 30510 (15 August 2018) (First Amendment) 5, as well as any amendments, replacements,
related measures, or implementing measures.
1.4. Supplemental consultations were held on 14 November 2018, but failed to resolve the dispute.
1.2 Panel establishment and composition
1.5. On 20 December 2018, the United States requested the establishment of a panel pursuant to
Article 6 of the DSU with standard terms of reference. 6 At its meeting on 28 January 2019, the
Dispute Settlement Body (DSB) established a panel pursuant to the request of the United States in
document WT/DS561/2, in accordance with Article 6 of the DSU.7
1.6. The Panel's terms of reference are the following:
To examine, in the light of the releva nt provisions of the covered agreements cited by
the parties to the dispute, the matter referred to the DSB by the United States in
document WT/DS561/2 and to make such findings as will assist the DSB in making the
recommendations or in giving the rulings provided for in those agreements.8

1 Following the establishment of this Panel, Turkey changed its name to the Republic of Türkiye. See
WT/INF/43/Rev.23.
2 Both parties have submitted translations of this instrument, which differ in respect of, inter alia, its
title. In its consultations and panel requests, the United States referred to this instrument as the "Decision on
Implementation of Additional Financial Obligations for the Import of Certain Products Originating in the
United States of America". In this Report, the Panel has decided to use Türkiye's translation, submitted as
Exhibit TUR-41, in the light of the United States' indication that it would have no objection to the Panel doing
so. See United States' response to Panel question No. 71. The Panel understands that the slight differences in
language between the two translations have no legal significance.
3 Request for consultations by the United States, WT/DS561/1.
4 Request for consultations by the United States – Addendum, WT/DS561/1/Add.1.
5 Both parties have submitted translations of this instrument. In its consultations and panel requests,
the United States referred to this instrument as the "Decision to Amend the Decision to Impose Additional
Financial Liabilities on the Import of Some Products Originating From the United States of America". In this
Report, the Panel will use Türkiye's translation, submitted as Exhibit TUR-42. The Panel does not consider that
the slight differences between the two translations have any legal significance.
6 Request for the establishment of a panel by the United States, WT/DS561/2 (United States' panel
request).
7 DSB, Minutes of the meeting held on 28 January 2019, WT/DSB/M/425, para. 6.7.
8 Constitution note of the Panel, WT/DS561/3.

1.7. On 18 February 2019, the United States requested the Director -General to determine the
composition of the panel, pursuant to Article 8.7 of the DSU . On 28 February 2019, the
Director-General accordingly composed the Panel as follows:
Chairperson: Mr William Ehlers

Members: Mr Johannes R. Bernabe
 Mr Homero Larrea Monard

1.8. Brazil, Canada, China, the European Union, Guatemala, India, Indonesia, Japan, Kazakhstan,
Mexico, New Zealand, Norway, the Russian Federation, Singapore, Switzerland, Chinese Taipei,
Thailand, Ukraine, and the Bolivarian Republic of Venezuela notified their interest in participating in
the Panel proceedings as third parties.
1.3 Panel proceedings
1.3.1 General
1.9. The Panel held an organizational meeting with the parties on 14 March 2019.
1.10. After consulting with the parties, the Panel adopted its Working Procedures 9 and partial
timetable on 5 April 2019. The Panel revised its timetable several times throughout the proceedings
in consultation with the parties.10
1.11. The Panel held a first substantive meeting with the parties on 3 and 4 October 2019. A session
with the third parties took place on 3 October 2019. Prior to the first substantive meeting, on
23 September 2019, the Panel sent the parties and the third parties a list of questions to be
answered orally at the meeting. Following the meeting, on 29 November 2019, the Panel sent written
questions to the parties and the third parties.
1.12. The second substantive meeting was originally scheduled to take pla ce on 15 and
16 June 2020. However, d ue to the COVID -19 pandemic and related restrictions on travel and
in-person meetings, it was not possible to physically meet with the parties at the WTO premises on
the scheduled dates. In consultation with the parties , the Panel postponed the second substantive
meeting several times to a date to be determined. Meanwhile, on 16 November 2020, the Panel sent
the parties a list of questions to which it sought responses in writing.
1.13. On 17 December 2021, after further consultations with the parties, the Panel communicated
its decision that, taking into account the delays already occasioned by COVID -19, as well as the
uncertainty about the evolution of the pandemic, scheduling a second substantive meeting in virtual
format would strike an appropriate balance between the efficient conduct of the proceedings and the
parties' due process rights.11
1.14. On 8 February 2022, after consultations with the parties, the Panel scheduled the second
substantive meeting through virtual means for 8 and 9 March 2022, and issued draft Additional
Working Procedures Concerning Substantive Meetings with Remote Participation to the parties. On
18 February 2022, the Panel adopted its Additional Working Procedures Concerning Substantive
Meetings with Remote Participation.12
1.15. The Panel held its second substantive meeting with the parties virtually on 8 and 9 March 2022
via the Cisco Webex platform. Prior to the second substantive meeting, on 1 March 2022, the Panel
sent the parties a list of questions to be answered orally at the meeting.
1.16. On 28 April 2022, the Panel sent the parties a list of questions to which it sought answers in
writing.

9 See Working Procedures of the Panel (Annex A-1).
10 The timetable was revised on 5 April 2019, 7 February 2020, 3 June 2020, 16 November 2020,
23 November 2020, 18 February 2022, 28 April 2022, 13 May 2022, 23 November 2022, and 25 May 2023.
11 Panel's communication to the parties (17 December 2021).
12 Annex A-2.

1.17. On 15 December 2022, the Panel issued the draft descriptive part of its Report to the parties.
On the same day, and following the circulation of the panel report i n US – Steel and Aluminium
Products (Turkey), the Panel sought the parties' views on the findings in that report concerning the
applicability of the WTO safeguards regime to the United States' Section 232 measures, and on the
relevance of those findings for this Panel's analysis.
1.18. The Panel issued its Interim Report to the parties on 25 May 2023. The Panel issued its Final
Report to the parties on 1 December 2023.
1.3.2 Requests for enhanced third-party rights
1.19. The Panel received communications from Canada 13, the Russian Federation14,
the European Union15, China16, and Mexico 17, asking that the Panel exercise its discretion under
Article 12.1 of the DSU to grant all third parties additional rights to those provided under Article 10
of the DSU. The requesting third parties asked the Panel to allow all third parties: (i) to receive
copies of the parties' written submissions, their oral statements, rebuttals, and answers to questions
from the Panel and each other, through all the stages of the proceedings; (ii) to be present for the
entirety of all substantive meetings of the Panel with the parties; (iii) to review the draft summary
of their own arguments in the descriptive part of the Panel Report; and (iv) to make a brief oral
statement during the second substantive meeting.
1.20. The Panel sought the parties' views on the requests for enhanced third -party rights. Türkiye
supported the requests, noting that the measure challenged by the United States in this dispute was
similar to the measures challenged by the United States in separate panel proceedings where the
requesting third parties were participating as respondents. According to Türkiye, the enhanced rights
requested by the third parties would not impose any undue additional burden on either the Panel or
the parties to the dispute. 18 The United States opposed the requests, arguing that they were not
well founded under the DSU, and that the granting of additional rights to third parties would result
in a corresponding imposition of additional obligations on the parties, without the consent of one of
them.19
1.21. On 5 April 2019, the Panel sent a communication to the parties and the third parties in relation
to the requests for enhanced third -party rights. The Panel recalled that it had discretion to grant
such requests but declined to do so in the circumstances of this case. In explaining its decision, the
Panel noted, inter alia, the lack of agreement between the parties and the due process implications
of granting enhance d third-party rights. The Panel further noted that the third parties requesting
enhanced rights would have an opportunity to fully express their views on the relevant legal issues
as third parties in this dispute in accordance with Article 10 of the DSU, and also as respondents in
separate panel proceedings concerning the United States' complaints against their own measures.
1.22. The Panel's communication is annexed to this Report.20
2 FACTUAL ASPECTS
2.1 The measure at issue
2.1. This dispute concerns Türkiye's imposition of additional duties on certain products originating
in the United States (additional duties measure). 21 The duties imposed by this measur e are

13 Canada's communication (15 March 2019).
14 Russian Federation's communication (19 March 2019).
15 European Union's communication (20 March 2019).
16 China's communication (20 March 2019).
17 Mexico's communication (22 March 2019).
18 Türkiye's communications (21, 22, and 25 March 2019).
19 United States' communications (20, 21, 22, and 26 March 2019).
20 Communication by the Panel on requests for enhanced third-party rights (Annex D-1).
21 As explained in section 1.1 above, the additional duties originally challenged by the United States
were amended by Türkiye following the parties' consultations under Article 4 of the DSU. Further to
supplementary consultations on these amended additional duties, the United States requested the
establishment of a panel on the "amended additional duties measure". In this Report, to differentiate the
measure at issue from later amendments, the Panel has decided to refer to the measure challenged by the
United States in its panel request as the "additional duties measure".

additional in that they apply in addition to other duties assessed on imports. The United States'
panel request identifies the Implementation Decree22 and the First Amendment 23, as well as any
amendments, replacements, related measures or implementing measures, as the legal instruments
through which the additional duties measure is imposed.24
2.2. The Implementation Decree imposes additional duties on the importation of certain products
from the United States, including nuts, rice, food preparations, ethyl alcohol, tobacco, coal, beauty
and make-up preparations, certain chemical substances, firewood, certain paper products, certain
kinds of pumps, certain x -ray parts, and certain automotive parts. 25 Specifically, it imposes
additional duties of between 4% and 70% on 22 tariff lines at the four - and six-digit level, and
479 tariff lines at the 12 -digit level. 26 These duties apply only to products originating in the
United States.27
2.3. The First Amendment applies to the same products as the Implementation Decree but increases
the level of the additional duties, such that the 479 tariff lines are subject to additional duties of
between 4% and 140%.28
2.2 Factual background
2.4. Between March and A ugust 2018, the United States issued instruments imposing certain
duties on imports of steel and aluminium products from several countries, including Türkiye
(Section 232 duties).29
2.5. On 20 April 2018, Türkiye sent a communication to the United States stating that it considered
the Section 232 duties to be safeguard measures, and requesting consultations with the
United States in accordance with Article 12.3 of the Agreement on Safeguards.30 That same day, the
United States sent a response to Türkiye, stating that the Section 232 duties were not safeguard
measures, and that therefore there was no basis to conduct consultations under the Agreement on
Safeguards with respect to these duties.31 The United States indicated that while it would be open
to discuss this or any other issue with Türkiye, any discussions regarding the Section 232 duties
would not be under the Agreement on Safeguards and would be without prejudice to the
United States' view that the Section 232 duties were not safeguard measures.32
2.6. On 21 May 2018, Türkiye notified the WTO Council for Trade in Goods and the Committee on
Safeguards that, in Türkiye's view, the Section 232 duties constituted "safeguard measures which
are not consistent with the provisions of the [Agreement on Safeguards ]".33 Türkiye therefore

22 Exhibits USA-1, TUR-41. The Implementation Decree entered into force on 21 June 2018 but was only
published on 25 June 2018. See United States' response to Panel question No. 3.
23 Exhibits USA-2, TUR-42.
24 United States' panel request, p. 1.
25 Implementation Decree, (Exhibits USA-1, TUR-41), Table; Türkiye's first written submission,
para. 2.21.
26 Implementation Decree, (Exhibits USA-1, TUR-41). In its first written submission, the United States
argued that the Implementation Decree affected 477 tariff lines at the 12-digit level. (United States' first
written submission, para. 5). Türkiye, in its first written submission, noted that in fact the 22 four- and six-
digit tariff lines identified in the Implementation Decree cover 479 12-digit tariff lines. (Türkiye's first written
submission, para. 2.17, fn 28 and para. 2.22, fn 37). The United States subsequently accepted this correction.
(United States' response to Panel question No. 4).
27 Implementation Decree, (Exhibits USA-1, TUR-41), Article 1. A full list of the relevant duties is
provided in the Table of relevant duty rates (Annex E-1).
28 First Amendment, (Exhibits USA-2, TUR-42).
29 Türkiye's first written submission, paras. 2.6-2.9; United States' second written submission,
paras. 12-14.
30 Committee on Safeguards, Imposition of a safeguard measure by the United States on imports of
steel and aluminium: Request for consultations under Article 12.3 of the Agreement on Safeguards, G/SG/183.
31 Committee on Safeguards, Communication from the United States in response to Turkey's request
circulated on 20 April 2018, G/SG/184.
32 Committee on Safeguards, Communication from the United States in response to Turkey's request
circulated on 20 April 2018, G/SG/184.
33 Council for Trade in Goods and Committee on Safeguards, Immediate Notification under Article 12.5
of the Agreement on Safeguards to the Council for Trade in Goods of proposed suspension of concessions and
other obligations referred to in paragraph 2 of Article 8 of the Agreement on Safeguards, G/L/1242-
G/SG/N/12/TUR/6, para. 2. In the same paragraph, Türkiye notes its disagreement with the United States'

proposed to "[s]uspen[d] … substantially equivalent concessions and other obligations under
GATT 1994 to the trade of the United States tak[ing] the form of an increase in tariffs on selected
products originating in the United States" pursuant to Article XIX:3 of the GATT 1994 and Article 8.2
of the Agreement on Safeguards.34 Türkiye imposed the additional duties measure one month later,
on 21 June 2018, through the Implementation Decree.35
2.7. On 15 August 2018, the United States increased the level of duties it applied to steel products
from Türkiye.36 That same day, Türkiye notified the Council for Trade in Goods and the Committee
on Safeguards that it "reserves its right to further suspend substantially equivalent concessions and
other obligations based on the trade impact resulting from the application of the new measures of
the United States".37 Türkiye adopted the First Amendment on the same day, thereby increasing the
level of additional duties imposed on certain products originating in the United States.
2.8. On 21 May 2019, a few months after the establishment of this Panel on 28 January 2019, the
United States announced that it would reduce the duties it applied on certain steel products from
Türkiye to the level in force prior to 15 August 2018.38 On the same day, Türkiye amended its
additional duties measure through the Decision Amending the Decree On Additional Duties on the
Importation of Certain Products Originated from the United States of America, Presidential Decision
No. 1130, Official Gazette No. 30781 (22 May 2019) (Second Amendment). 39 This instrument
reduces the additional duties to the rates in force prior to 15 August 2018, i.e. prior to the entry into
force of the First Amendment.40
3 PARTIES' REQUESTS FOR FINDINGS AND RECOMMENDATIONS
3.1. The United States requests that the Panel find that Türkiye's additional duties measure is
inconsistent with Türkiye's obligations under Articles I:1, II:1(a), and II:1(b) of the GATT 1994.41
3.2. Türkiye requests that the Panel rej ect the United States' claims in this dispute in their
entirety.42
4 ARGUMENTS OF THE PARTIES
4.1. The arguments of the parties are reflected in their executive summaries, provided to the Panel
in accordance with paragraph 22 of the Working Procedures adopted by the Panel (see Annexes B-1
and B-2).
5 ARGUMENTS OF THE THIRD PARTIES
5.1. The arguments of China, the European Union, Japan, New Zealand, Norway, the
Russian Federation, Switzerland, and Ukraine are reflected in their executive summaries, provided

view that the Section 232 duties "are not safeguard measures, and therefore, there is no basis to conduct
consultations under the Agreement on Safeguards with respect to these measures". (Ibid.)
34 Council for Trade in Goods and Committee on Safeguards, Immediate Notification under Article 12.5
of the Agreement on Safeguards to the Council for Trade in Goods of proposed suspension of concessions and
other obligations referred to in paragraph 2 of Article 8 of the Agreement on Safeguards, G/L/1242-
35 As noted above, the Implementation Decree was only published on 25 June 2018. Implementation
Decree, (Exhibits USA-1, TUR-41).
36 Türkiye's first written submission, para. 2.18. See Proclamation 9772, (Exhibits USA-31, TUR-14).
37 Council for Trade in Goods and Committee on Safeguards, Immediate Notification under Article 12.5
of the Agreement on Safeguards to the Council for Trade in Goods of proposed suspension of concessions and
other obligations referred to in paragraph 2 of Article 8 of the Agreement on Safeguards, G/L/1242/Suppl.1-

38 Türkiye's first written submission, para. 2.20. See Proclamation 9886, (Exhibit TUR-46).
39 Exhibit TUR-43.
40 The parties disagree on whether this instrument is within the Panel's terms of reference, and what its
legal significance might be. See United States' response to Panel question Nos. 5, 69, and 70; Türkiye's
response to Panel question Nos. 5, 69, and 72. The Panel will address these issues in its Findings.

in accordance with paragraph 25 of the Working Procedures adopted by the Panel (see Annexes C-1,
C-2, C-3, C-4, C-5, C-6, C-7, and C-8).
6 INTERIM REVIEW
6.1. On 25 May 2023, the Panel issued its Interim Report to the parties. On 8 June 2023, the parties
submitted written requests for review of the Interim Report. Neither party requested an interim
review meeting. On 15 June 2023, both parties submitted comments on the other party's requests
for review.
6.2. In accordance with Article 15.3 of the DSU, this section of the Report sets out the Panel's
responses to the requests made at the interim review stage.43
6.3. At the outset, the Panel notes the parties' requests to modify or expand the Panel's summaries
of their arguments. In this Report, the Panel has summarized the parties' arguments concerning the
contested issues with a view to placing its reasoning and findings in context. The Panel did not intend
to provide extensive descriptions of all the arguments raised by the parties, but only of arguments
relevant for the purposes of the Panel's objective assessment of the matter before it. In this regard,
the Panel recalls that the parties have submitted detailed executive summaries of their arguments,
annexed to this Report44, which provide a comprehensive account of their respective positions. The
Panel further understands that it has substantial discretion to focus on those aspects of the parties'
submissions that it considers most pertinent for the resolution of the dispute, in fulfilment of its duty
to make such findings as will assist the DSB in making the recommendations or rulings provided for
in the covered agreements.45
6.4. Accordingly, unless otherwise specified in thi s section, the Panel considers that the parties'
arguments were adequately summarized in the Interim Report and has not modified or expanded
the relevant paragraphs in the Final Report.
6.5. The Panel has made typographical and other editorial modifications in the Report, including in
response to the parties' requests for review.
6.1 Applicability of the relevant covered agreements
6.1.1 Paragraph 7.3 and footnote 67
6.6. The United States requests that the Panel make certain changes to more accurately reflect the
United States' position that "invocation through notice is the condition precedent for taking action
under Article XIX and the application of the safeguards disciplines".46 Türkiye does not object to the
United States' request.47
6.7. Taking into account that the modifications requested in the summary of the United States'
arguments do not impact the Panel's reasoning, and in the absence of any objection from Türkiye ,
the Panel agrees to modify paragraph 7.3 and footnote 67 of the Report.
6.1.2 Paragraphs 7.52-7.56
6.8. Türkiye requests that the Panel either delete or revise its reasoning in paragraphs 7.52 and
7.54 and footnote 120 of the Report, which Türkiye considers to be inconsistent with the principles
of treaty interpretation. In particular, Türkiye contends that the Panel's contextual interpretation of
Article 11.1(c) of the Agreement on Safeguards places selective reliance on the other paragraphs of
Article 11.1 and fails to consider how the expression "pursuant to" is used in other provisions of the

43 The paragraph and footnote numbers in the Final Report may have changed due to the revisions
made at the interim review stage. The paragraph and footnote numbers indicated in this section pertain to
those in the Final Report, unless otherwise specified.
44 Integrated executive summary of the arguments of the United States (Annex B-1) and Integrated
executive summary of the arguments of Türkiye (Annex B-2).
45 Article 7.1 of the DSU.
46 United States' interim review comments, para. 4.
47 Türkiye's comments on United States' interim review comments, para. 2.1.

Agreement on Safeguards.48 The United States objects to Türkiye's request, and refers to various
elements of the Panel's findings to argue that "the Panel did consider the use of 'pursuant to' in
other provisions of the Agreement on Safeguards … as well as the broader context of the Agreement
on Safeguards".49
6.9. The Panel recalls its observation in paragraph 7.52 that the meaning of "pursuant to" in a
provision depends on its context, as illustrated by the different ways in which that expression is used
in the Agreement on Safeguards. The Panel accordingly interpreted "pursuant to" in Article 11.1(c)
in the context in which those terms appear in that provision, namely, in relation to the applicability
of legal disciplines. 50 In doing so, the Panel took into account the immediate context of
Article 11.1(c), including the use of contrasting terms in the various paragraphs of Article 11.1 of
the Agreement on Safeguards, as well as the broader context of the Agreement on Safeguar ds.51
The Panel also examined the context provided by various provisions of the Agreement on Safeguards
for interpreting the terms "en vertu de" and "de conformidad con", respectively, in the French and
Spanish language versions of Article 11.1(c). Based on the foregoing, the Panel considers that its
interpretation of Article 11.1(c) takes due account of the relevant context of that provision in all
three languages and declines Türkiye's request to revise its findings in this respect.
6.10. The United States requests that the Panel add a paragraph in the Report to support the Panel's
interpretation of the terms "pursuant to" in Article 11.1(c) of the Agreement on Safeguards as set
out in paragraphs 7.52 to 7.56. Specifically, the United States requests the Panel to indicate that
the ordinary meaning of "sought, taken or maintained" in Article 11.1(c) supports the Panel's
understanding that " in the case of measures sought, taken, or maintained by virtue of or under
'provisions of GATT 1994 other than Article XIX', the Agreement on Safeguards does not apply,
irrespective of whether the measures are consistent with such other provisions".52 Türkiye opposes
the United States' request as, in its view, nothing in the Interim Report suggests that the Panel
agrees with the United States' interpretation of the phrase "sought, taken or maintained " in
Article 11.1(c). Türkiye argues that the United States' request seeks to amend the Panel's reasoning
with respect to an issue that is not necessary for the Panel to address to resolve the legal question
before it, and that accepting this request could be seen as providing an advisory opinion.53
6.11. The Panel does not find it necessary to supplement its reasoning with additional considerations
as requested by the United States. In the Panel's view, the interpretation provided in the Report of
the text of Article 11.1(c) of the Agreement on Safeguards, in its context and in the light of the
object and purpose of the Agreement, is sufficiently detailed . The Panel does not consider that
addressing the additional elements raised by the United States is strictly necessary to resolve the
dispute or to make such findings as will assist the DSB in making the recommendations or rulings
provided for in the covered agreements. Accordingly, the Panel declines the request.
6.1.3 Paragraph 7.61
6.12. Türkiye notes the reference in paragraph 7.61 to its argument that "whether a measure falls
under the scope of Article 11.1(c) of the Agreement on Safeguards must be determined 'objectively'
by analysing 'in particular, whether the measure presents the constituent features of a safeguard
measure within the meaning of Article XIX'". Türkiye requests the Panel to clarify that this argument
was made in the context of a measure that "exhibits the features of both a safeguard measure and
a different type of measure" such as , in Türkiye's view, the Section 232 measures. Türkiye further
requests the Panel to clarify whether its reasoning in this paragraph should be understood as
suggesting that "the assessment of the applicability of Article XXI to the United States' measures
involves only the analysis of the nexus of these measures to the United States' alleged national
security concerns …[and] does not involve the analysis of whether WTO safeguard rules may be a
more suitable applicable provision".54 The United States objects to Türkiye's requests, arguing that
Türkiye does not explain why the Panel's statement of its argument is incorrect. The United States
further contends that Türkiye is misconstruing the Panel's analysis as pertaining to "the applicability

48 Türkiye's interim review comments, paras. 2.1-2.6.
49 United States' comments on Türkiye's interim review comments, paras. 3-5.
50 See para. 7.52 below.
51 See paras. 7.54-7.57 below.
52 United States' interim review comments, para. 8.
53 Türkiye's comments on United States' interim review comments, paras. 2.8-2.10.
54 Türkiye's interim review comments, paras. 2.7-2.10.

of Article XXI [of the GATT 1994]" rather than "the applicability of Article 11.1(c) [of the Agreement
on Safeguards]". In the United States' view, the text of Article 11.1(c) does not require a panel to
assess "whether WTO safeguard rules may be a more suitable applicable provisions", and the
United States does not object to including such a clarification in the Panel's findings.55
6.13. The Panel has revised paragraph 7.61 and footnote 132 to explain the context in which Türkiye
made the relevant arguments. The Panel has also clarified its reasoning in that paragraph in response
to Türkiye's request, taking note of the lack of objection from the United States in this regard.
6.1.4 Section 7.1.2.5.2
6.14. Türkiye contends that the Panel's reasoning in this section improperly defers to the
United States' subjective view that the Section 232 measures are "national security measures". In
Türkiye's view, the Panel's approach fails to "apply an objective te st that examines the nature,
essence and constituent features of the measure, to determine whether the measure is covered by
a particular set of WTO disciplines", and disregards "the well -established WTO principle that … the
applicability of particular WTO norms[] is determined by the objective substantive characteristics of
the measure". Türkiye considers that, in the context of the present dispute, the Panel's approach
deprives Members of their rights under Article 8 of the Agreement on Safeguards and
Article XIX:3(a) of the GATT 1994.56 The United States contends that Türkiye's characterization of
the Panel's analysis is erroneous, as the Panel did assess the substance of the Section 232 measures
in the context of Article 11.1(c) of the Agreement on Safeg uards. According to the United States,
Türkiye's approach to the assessment of the Section 232 measures would allow any measure
inconsistent with an obligation under the GATT 1994 to be "construed as a safeguard measure and
give rise to a 'right' to 'rebalance' for another Member", contrary to the text of the WTO Agreement.57
6.15. The Panel recalls that Article 15.2 of the DSU provides that parties may only request the
review of "precise aspects" of the Interim Report. In this regard, the Panel considers that Türkiye
has not indicated which precise aspects of section 7.1.2.5.2 it wishes the Panel to revise. The Panel
notes that Türkiye's comments appear to repeat its prior submissions on the characterization of the
Section 232 measures, as well as the ir "objective assessment", and raise "what it considers to be
certain troubling implications of the Panel 's approach". The Panel does not consider the interim
review stage to be the appropriate phase for parties to relitigate arguments made during the panel
proceedings regarding the implications of a particular "approach" that could be adopted by a panel.
6.16. In its Report, the Panel has examined various aspects of the application (through tariffs and
quotas) and non-application (through exemptions and exclusions) of th e Section 232 measures to
determine how these measures were designed and expected to operate.58 The Panel also explained
the relevance of evidence concerning the domestic legal basis, procedures for adoption, and
notification of the Section 232 measures, b ased on the Panel's interpretation of Article 11.1(c) of
the Agreement on Safeguards. 59 Therefore, the Panel has already addressed Türkiye's arguments
on the characterization of the Section 232 measures in its findings, where appropriate.60 The Panel
considers that its approach preserves the rights of Members under Article 8.2 of the Agreement on
Safeguards and Article XIX:3(a) of the GATT 1994, which, based on the Panel's interpretation, are
conditional upon the characterization under the Agreement on Safe guards of the measure applied
by another Member.61
6.17. In the light of these considerations, the Panel declines Türkiye's request for review of section
7.1.2.5.2 of the Report.

55 United States' comments on Türkiye's interim review comments, paras. 6-8.
56 Türkiye's interim review comments, paras. 2.11-2.17.
57 United States' comments on Türkiye's interim review comments, paras. 9-16.
58 See paras. 7.67-7.78 below.
59 See para. 7.74 below.
60 See also paras. 7.74-7.78 of the Panel's findings addressing specific arguments raised by Türkiye.
61 See paras. 7.41 and 7.44 below.

6.2 United States' claim under Articles II:1(a) and II:1(b) of the GATT 1994
6.2.1 Section 7.2.3.2.2
6.18. Türkiye objected to the Panel's determination in paragraphs 7.130 -7.133 of the Interim
Report that tariff lines 870333909011, 870333909019, 870340100000, 870340900000,
870350000000, and 870360100000 were subject to a bound rate of 19%. 62 Türkiye argued that
bound rates for the tariff lines in question are not discernible from its GATT Schedule.63 In particular,
Türkiye submitted that the Panel's Interim Report failed to explain how the Panel reached its
determination of the applicable bound rates , or how it converted or disaggregated the bindings
expressed in Türkiye's bound Schedule, which are expressed in terms of the Harmonized System
Nomenclature 2002 (HS2002), into the Harmonized System Nomenclature 2017 (HS2017), in which
Türkiye's applied tariff schedule and, thus, the additional duties measure is expressed. 64 Türkiye
requested that the Panel provide a substantiated analysis of what it considers to be the correct
bound rates for the six tariff lines and why, giving weight to the fact that Türkiye's process of
transposing its schedule from HS2002 to the Harmonized System Nomenclature 2007 (HS2007) is
still ongoing.65 In Türkiye's view, the numerous technical questions that need to be reso lved in the
transposition process are best discussed in the appropriate setting in the WTO, that is, in the
interaction between Türkiye, the WTO Secretariat, and other Members, rather than by a WTO panel.
Türkiye argued that, because its concern affects only a tiny fraction of the 479 tariff lines covered
by the additional duties measure, the most appropriate and practical approach for the Panel would
be to leave the bound rates for these six tariff lines unresolved.66
6.19. The United States objected to Türkiye's requests in this connection. The United States
disagreed that the bound rates for the tariff lines at issue are not discernible from Türkiye's bound
Schedule, and argue d that the applied duties on certain products, based on HS2017, m ust be
assessed in terms of the scope of Türkiye 's WTO commitments as certified in HS2002 .67 In the
United States' view, Türkiye's ongoing transposition process is "entirely separate" from the Panel's
assessment of Türkiye's commitments as reflected in its bound Schedule as certified in HS2002 at
the time of the Panel's establishment.68 On the basis of these considerations, the United States
argued that there is no basis for Türkiye's request that the Panel leave the bound rates for these six
tariff lines unresolved and abstain from making a finding on whether Türkiye has violated Article II
of the GATT 1994 in respect of them. Rather, the United States maintained that, in accordance with
its terms of reference, the Panel has a duty to assess the United States' claims under Articles II:1(a)
and (b) with respect to these items, including by assessing Türkiye's applied duties in terms of the
scope of its WTO commitments as certified in the HS2002 nomenclature.69 The United States did,
however, suggest that the Panel clarify in its report its analysis on the bound rates for the tariff lines
in question.70
6.20. To examine this issue more closely, the Panel invited the parties to provide "[a]ll documents
and information necessary to ascertain the bound rates applicable to the relevant tariff lines", and
"[e]xplain the methodology that … the Panel should use to confirm Türkiye's scheduled
commitments, if any, with respect to the relevant tariff l ines".71 On 10 July 2023, Türkiye sent a
communication to the Panel advising that it did not intend to submit any material in response to the
Panel's request, and asking the Panel to refrain from making findings on the bound rates applicable
to these tarif f lines. Türkiye reiterated that its bound Schedule is currently undergoing a " highly
technical and complex … WTO transposition process"72, and expressed the view that " deferring to

62 Following the issuance of the draft descriptive part of the Panel's report, Türkiye raised concerns
about these same tariff lines. In particular, Türkiye objected to the Panel's determination that these tariff lines
were subject to a bound rate of 19%. In Türkiye's view, the Panel should have determined that these tariff
lines are unbound (Türkiye's communication (18 April 2023)). In response to Türkiye's objection, the
United States maintained its position that the tariff lines are subject to a bound rate of 19% (United States'
communication (25 April 2023), paras. 1 and 4).
63 Türkiye's interim review comments, para. 2.20.
64 Türkiye's interim review comments, para. 2.21.
65 Türkiye's interim review comments, paras. 2.27-2.28.
66 Türkiye's interim review comments, para. 2.28.
67 United States' comments on Türkiye's interim review comments, para. 19.
68 United States' comments on Türkiye's interim review comments, para. 20.
69 United States' comments on Türkiye's interim review comments, para. 21.
70 United States' comments on Türkiye's interim review comments, para. 22.
71 Panel's communication to the parties (3 July 2023).
72 Türkiye's communication (10 July 2023).

the outcome of Türkiye's transposition process is the sole correct approac h" that the Panel could
take on this issue.73 In Türkiye's view, a ruling by the Panel on the bound rates applicable to these
tariff lines "would be neither appropriate, nor would assist the parties in developing a mutually
satisfactory solution in this di spute".74 Türkiye expressed concern that a detailed analysis of this
issue by the Panel, particularly at a late stage of the proceedings and against the background of an
ongoing transposition process, " would not only necessarily prejudge the outcome of thi s
[transposition] process, but would also interfere with the institutional balance and the division of
tasks between different WTO bodies".75
6.21. On 24 July 2023, the United States submitted several documents to the Panel: (1) an Excel
file of Türkiye's bound Schedule sourced from the WTO's Consolidated Tariff Schedule (CTS)
Database76; (2) two documents showing Türkiye's applied rates for 2018 and 2019 in HS2017 at the
12-digit level77; (3) a consolidated document showing graphs of HS2002 to HS2017 correlation s
from the HS Tracker webpage, prepared by the WTO and the World Customs Organization (WCO),
using the subheading visualizer tool 78; and the relevant WCO correlation tables for HS2012 to
HS2017 prepared by the Harmonized System Committee of the WCO. 79 In its accompanying
communication, the United States objected to Türkiye's suggestion that the Panel should defer to
the outcome of Türkiye's transposition process, and submitted that the WTO transposition process
is "entirely separate from the Panel's as sessment of Türkiye's commitments at the time of panel
establishment, as reflected in Türkiye's WTO Schedule certified in HS2002". 80 The United States
further emphasized that, in accordance with the Panel's terms of reference, the Panel has a duty to
assess the United States' claims under Articles II:1(a) and (b) with respect to these six tariff lines.81
6.22. The United States also elaborated on the methodology it used to ascertain the bound rates
for the six tariff lines in question. The United States explained that it isolated the first six digits of
Türkiye's applied nomenclature in HS2017 for conversion using WCO correlation tables to determine
the equivalent bound rates in Türkiye's bound Schedule, which is expressed in terms of the HS2002
classification. The United States submitted that, while there were changes in nomenclature between
HS2012 and HS2017, for each of the relevant tariff lines bound in terms of the HS2017 classification
Türkiye is bound at 19% for certain lines in the HS2002 classification. In the United States' view, as
Türkiye's additional duties apply to all products of United States origin classified within the 4-digit
heading 87.03, the Panel should find that Türkiye imposes duties in excess of its bindings to the
extent that goods subject to the additional duties measure are within the scope of Türkiye's bound
commitments.82

73 Türkiye's communication (10 July 2023).
74 Türkiye's communication (10 July 2023).
75 Türkiye's communication (10 July 2023).
76 CTS file of Türkiye, (Exhibit USA-55). The Panel notes that the CTS Database is a WTO database
containing the agreed maximum tariffs that WTO Members can impose on imported products from other WTO
Members. It can only be accessed from within the WTO. See CTS Database,
https://www.wto.org/english/tratop_e/tariffs_e/cts_e.htm (accessed 3 October 2023).
77 Türkiye's 2018 Import Table, (Exhibit USA-56); Türkiye's 2019 Import Table, (Exhibit USA-57).
78 Excerpts of graphs from WTO-WCO HS Tracker, (Exhibit USA-58).
79 WCO correlation tables HS2012 to HS2017 (1), (Exhibit USA-59); WCO correlation tables HS2012 to
HS2017 (2), (Exhibit USA-60).
82 United States' communication (24 July 2023), para. 4. The Panel recalls the similar explanation
provided in the United States' first written submission:
Turkey, however, has not substantially updated its schedule of tariff bindings since its accession,
and available WTO tariff binding data in uses the 2007 revision of the Harmonized System. It is
therefore difficult for the United States—or any other WTO Member, for that matter—to confirm
whether Turkey continues to meet its commitments since the Harmonized System and Turkey's
domestic tariff schedule have undergone substantial revisions in recent years. To overcome this
obstacle, the United States first isolated the first four or six digits of each 12-digit tariff code
subject to Turkey's additional duties. The United States converted these 4- or 6-digit HS codes
from HS2017 to HS2007 using a conversion table published by the United Nations Statistics
Division. The United States then compared these HS2007 six-digit codes to CTS data from TDF to
identify the highest tariff binding for all lines under each 10-digit subheading. The United States
adopted this maximum bound rate at the 10-digit level as the bound rate for all 12-digit HTS
lines falling under that subheading. For certain 12-digit tariff codes at issue, an exact match was
not available at the 10-digit level. The United States, therefore, adopted the maximum bound

6.23. On 31 July 2023, Türkiye submitted comments on the United States' communication of
24 July 2023. Türkiye repeated its view that a ruling by this Panel on the correct bound rate s of
these tariff lines would neither be appropriate, nor assist the parties in developing a mutually
satisfactory solution in this dispute.83 Türkiye explained that its bound Schedule, which is bound in
terms of the HS2002 classification, does not contain the relevant tariff lines from Türkiye's current
applied tariff schedule, nor does it contain the bound tariff rates for those specific lines. Thus,
according to Türkiye, these lines, and their corresponding bound tariffs, can only be determined by
conducting the transposition process.84 In Türkiye's view, the Panel could only determine the bound
rates applicable to these six tariff lines by "effectively … conduct[ing], in analytical terms, the WTO
transposition procedures".85 Türkiye expressed the view that, if the Panel were to engage in this
activity, it would be bypassing or even undermining the complex, technical, and ongoing
transposition process.86
6.24. The Panel recalls that, pursuant to Article 7.1 of the DSU, its terms of reference require it to
examine, in the light of the relevant provisions of the covered agreements cited by the parties to
the dispute, the matter referred to the DSB by the United States in document WT/DS561/2, and to
make such findings as will assist the DSB in making the recommendations or in giving the rulings
provided for in those agreements.87 More specifically, the Panel's task pursuant to Article 11 of the
DSU is to make an objective assessment of the United States' claims that Türkiye's additional duties
measure is inconsistent with, inter alia, Articles II:1(a) and II:1(b) of the GATT 1994.
6.25. The Panel recalls that, early in these proceedings, the United States submitted documents
setting out its understanding of the bound rates applicable to the tariff lines covered by the additional
duties measure.88 In its first written submission, Türkiye described these documents as "broadly
accurate"89 and did not cast doubt on the correctness of the United States' submissions on the
applicable bound rates. Nevertheless, as noted above, following the issuance of the draft descriptive
part of the Panel's report, and again during the interim review process, Türkiye raised concerns
about the accuracy of the bound rates that the Panel had identified as applicable to tariff lines
870333909011, 870333909019, 870340100000, 870340900000, 870350000000, and
870360100000. Over the course of several exchanges between the Panel and the partie s, Türkiye
requested the Panel to refrain from determining the bound rates applicable to these six tariff lines
in the light of the ongoing transposition process in respect of Türkiye's bound Schedule.
6.26. The Panel is of the view that it would not be possible to fulfil its duty under Article 11 of the
DSU if it were to refrain from determining the bound rates applicable to the tariff lines subject to
Türkiye's additional duties measure, including tariff lines 870333909011, 870333909019,
870340100000, 870340900000, 870350000000, and 870360100000 , at the time the Panel was
established. The Panel recalls that, under Article II:7 of the GATT 1994, Members' bound schedules
annexed to the GATT 1994 are integral part thereof. As such , the Panel understands that it is its
responsibility, in the circumstances of this case, to determine whether the import duties for products
falling under the tariff lines listed above are bound in Türkiye's Schedule and , if so, at what rate.
Accordingly, the Panel rejects Türkiye's request to leave the question regarding the determination
of the bound rates for the abovementioned six tariff lines unresolved.
6.27. The Panel takes note that Türkiye, in the alternative, is reque sting the Panel to provide a
more substantiated analysis of how it reached its determination of the bound rates applicable to the
six tariff lines. The United States does not object to the request that the Panel clarify its analysis on
the bound rates for the items in question . The Panel has taken the opportunity to make certain
amendments to its findings, with a view to improving the clarity of the Final Report.

rate at the 6-digit level for all of the 12-digit tariff codes falling under the applicable 6-digit
heading.
(United States' first written submission, fn 14.)
83 Türkiye's communication (31 July 2023).
84 Türkiye's communication (31 July 2023).
85 Türkiye's communication (31 July 2023).
86 Türkiye's communication (31 July 2023).
87 Constitution note of the Panel, WT/DS561/3.
88 United States' Table Presenting Tariff Lines and Bound Rates Affected By Türkiye's Measure from
21 June 2018 to 14 August 2018, (Exhibit USA-7); United States' Table Presenting Tariff Lines and Bound
Rates Affected By Türkiye's Measure beginning on 1 January 2019, (Exhibit USA-8).
89 Türkiye's first written submission, para. 2.22.

6.28. The Panel recognizes that the six tariff lines in question are expressed in terms of the HS2017
classification, whereas Türkiye's bound Schedule is certified in terms of the HS2002 classification.
However, in the Panel's view, this does not necessarily imply, per se, that the bound rates for the
tariff lines at issue cannot be identified. According to the Panel, the information on the record,
together with the WTO's Integrated Database (IDB) 90, which is composed of Türkiye's own
notifications, and the information in the CTS Database, namely the CTS file of Türkiye, enable it to
undertake the process of determining the bound rates applicable to the relevant tariff lines, despite
the existence of some important differences between HS2002, in which Türkiye's bound Schedule is
expressed, and HS2017, in which Türkiye's applied tariff schedule is expressed.
6.29. In order to better assist the parties in the resolution of their dispute, the Panel has decided
to provide a full analysis of the determination of the bound rates for the tariff lines in question in
Section 7.2.3.2.2 of the Final Report. Pursuant to the analysis, the Panel has confirmed its findings
with regard to tariff lines 870333909011, 870333909019. The Panel has partially revised its findings
with regard to tariff lines 870340100000, 870340900000, 870350000000, and 870360100000 . In
this context, the Panel took the opportunity to re -examine the issue and to determine that it was
not possible to establish an exact correspondence between the applied rates expressed in terms of
the HS2017 classification, and the bound rates expressed in terms of the HS2002 classification. In
this respect, the Panel did however find that the bound rates in Türkiye's schedule cover, at least
partially, some of the products falling under the tariff lines expressed in terms of the HS2017
classification. Accordingly, the Panel has concluded that Türkiye's additional duties measure is
inconsistent with Article II:1(b) of the GATT 1994 with regard to tariff lines 870340100000,
870340900000, 870350000000, and 870360100000 to the extent that they cover products subject
in Türkiye's bound Schedule to bound rates of 19% or 20%.
6.30. Finally, the Panel recognizes that Türkiye is currently undergoing the process of transposing
its schedule from HS2002 to HS2007. The Panel wishes to emphasize that its findings in this dispute
are without prejudice to the ongoing transposition process.
7 FINDINGS
7.1 Applicability of the relevant covered agreements
7.1.1 Main arguments of the parties
7.1.1.1 United States
7.1. The United States argues that in WTO dispute settlement, a panel generally begi ns its
assessment by examining the claims of the complainant before assessing the respondent's defence.
For the United States, the Panel's analysis in this case should accordingly begin with the
United States' claims under Articles I and II of the GATT 1994, before addressing Türkiye's
arguments under Article 8.2 of the Agreement on Safeguards and Article XIX:3(a) of the
GATT 1994.91
7.2. The United States maintains that Article 8.2 of the Agreement on Safeguards and
Article XIX:3(a) of the GATT 1994 do not appl y to Türkiye's additional duties measure. In the
United States' view, Article 8.2 of the Agreement on Safeguards and Article XIX:3(a) of the
GATT 1994 explicitly link a Member's right to suspend concessions or other obligations to the
application or extens ion of a safeguard measure by another Member. 92 According to the
United States, Article 8.2 of the Agreement on Safeguards allows an exporting Member affected by
a safeguard measure to suspend concessions or other obligations under the GATT 1994 if no
agreement concerning compensation has been reached among the Members concerned pursuant to
Article 8 of the Agreement on Safeguards. For the United States, the first analytical step to

90 The IDB contains the official time series of tariffs applied by WTO Members and selected acceding
countries to imports from other WTO Members. It comprises data notified to the WTO by Members on an
annual basis. See World Trade Organization, Integrated Database,
https://www.wto.org/english/tratop_e/tariffs_e/idb_e.htm (accessed 3 October 2023).
91 United States' responses to Panel question No. 11, para. 22.
92 United States' response to Panel question No. 29, para. 66; second written submission,
paras. 140-142.

determine whether Article 8.2 of the Agreement on Safeguards applies to a certain measure is thus
to examine whether another Member has previously applied a safeguard measure.93
7.3. The United States argues that it has not adopted any relevant safeguard measure for the
purposes of the present dispute. 94 According to the United States, a measure is only a safeguard
measure when the right to apply a safeguard is invoked with notice under Article XIX:2 o f the
GATT 1994, which the United States deems a "condition precedent" for a measure to qualify as a
safeguard measure. Without this invocation, the United States argues, a Member is not seeking legal
authority under Article XIX of the GATT 1994 to suspend its obligations or withdraw or modify its
concessions.95 The United States acknowledges that the applicability of the Agreement on
Safeguards and Article XIX of the GATT 1994 is a matter that requires an "objective examination",
and contends that whether invocation has occurred is an objective matter that a Panel may and
must evaluate, just as it would for any other objective matter.96 The United States notes that, in the
present case, it has not invoked Article XIX, but rather Article XXI of the GATT 1994.97
7.4. The United States argues that the relationship between the Agreement on Safeguards and
provisions of the GATT 1994 is clarified in Article 11.1(c) of the Agreement on Safeguards.98 In this
respect, the United States recalls that under Article 11.1(c), the Agreement on Safeguards does not
apply to measures "sought, taken or maintained … pursuant to provisions of GATT 1994 other than
Article XIX". The United States understands the terms of Article 11.1(c) to mean that the Agreement
on Safeguards is inapplicable when a Member acts "under" a provision of the GATT 1994 other than
Article XIX.99 In support of this understanding, the United States refers to early draft texts of the
Agreement on Safeguards, which, in its view, clarify that "the availability of Article XIX as a release
from obligations does not constrain a Member's ability to take action pursuant to other provisions of
the GATT 1994". The United States also notes that references in these early draft texts to measures
"consistent with" or "taken in conformity with" other GATT provisions were changed in the final draft
of Article 11.1(c), which instead refers to measures sought, taken, or maintained "pursuant to" other
GATT provisions.100
7.5. According to the United States, the Section 232 measures were taken pursuant to Article XXI
of the GATT 1994. In this respect, and in the context of Article 11.1(c), the United States refers to
the domestic legal basis and procedures for the Section 232 measures as well as relevant statements
made in WTO committees. 101 On this basis, the United States argues that the Agreement on
Safeguards does not apply to the Section 232 measures by virtue of Article 11.1(c) of that
Agreement. For the United States, this also means that Article 8.2 of the Agreement on Safeguards
and Article XIX:3(a) of the GATT 1994 are inapplicable to Türkiye's additional duties measure.102
7.6. In its comments on the findings of the panel in US – Steel and Aluminium Products (Turkey)
on the applicability of the Agreement on Safeguards and Article XIX of the GATT 1994 to the
Section 232 measures, the United States argues that those findings may be taken into account to
the extent that they are persuasive. The United States notes the finding in that panel report that
the term "pursuant to" in Article 11.1(c) of the Agreement on Safeguards does not mean consistency

93 United States' response to Panel question No. 15, para. 27.
94 United States' opening statement at the first meeting of the Panel, para. 3.
95 United States' first written submission, para. 71; opening statement at the first meeting of the Panel,
paras. 4 and 26. See also United States' response to Panel question No. 50, para. 108 (noting that in using the
term "invocation", the United States refers to the exercise of an available right); response to Panel question
No. 19, para. 42 (arguing that the "invocation" of the right to take a safeguard measure occurs through
providing notification and an opportunity to consult).
96 United States' opening statement at the first meeting of the Panel, para. 33; response to Panel
question No. 100, para. 106. The United States further notes that while an objective examination of whether a
Member has invoked the right to take action pursuant to Article XIX is the "first step" in analysing the
applicability of WTO rules on safeguard measures, invocation is not a "sufficient" condition for a measure to fall
under the Agreement on Safeguards and Article XIX of the GATT 1994 because the measure must also meet
certain other conditions of these provisions. (United States' opening statement at the first meeting of the
Panel, paras. 33 and 41).
97 United States' response to Panel question No. 25; second written submission, para. 10.
98 United States' response to Panel question No. 40.
99 United States' second written submission, paras. 91 and 108.
100 United States' response to Panel question No. 78, paras. 30 and 32.
101 United States' second written submission, paras. 10-16; comments on Türkiye's responses to Panel
question Nos. 84 and 89.
102 United States' second written submission, para. 91; response to Panel question No. 77.

with provisions of the GATT 1994 other than Article XIX. The United States also regards as
compelling that panel's assessment of the Section 232 measures in the context of Article 11.1(c).
The United States nevertheless emphasizes that this Panel must conduct an objective assessment
of the matter before it pursuant to Article 11 of the DSU.103
7.1.1.2 Türkiye
7.7. Türkiye argues that the Panel should begin its analysis by assessing the threshold question of
the applicability of the provisions cited by the parties to the measure at issue. 104 In Türkiye's view,
the law applicable to a measure must be determined before a claim of violation is assessed. 105
Accordingly, Türkiye submits that the Panel should begin its analysis by evaluating the applicability
of Article 8.2 of the Agreement on Safeguards and Article XIX:3(a) of the GATT 1994 to the
additional duties measure, because if it were to find these provisions applicable, there would be no
basis to assess the United States' claims under Articles I and II of the GATT 1994.106
7.8. According to Türkiye, a measure under Article 8.2 of the Agreement on Safeguards must exhibit
the following constituent features: ( i) it must respond to an underlying safeguard measure, by
suspending concessions or other obligations; and (ii) the measure's purpose, structure, and
operation must indicate that it was designed as a measure taken pursuant to Article 8.2 of the
Agreement on Safeguards.107 In connection with the first constituent feature, Türkiye considers that
it is not possible for the Panel to ascertain whether Türkiye's additional duties measure falls under
Article 8.2 of the Agreement on Safeguards without determining whether an underlying safeguard
measure exists, which it considers to be a threshold issue.108
7.9. Türkiye maintains that its additional duties measure possesses both constituent features
outlined above. First, Türkiye submits that its measure was adopted in response to the United States'
Section 232 measures, which, in Türkiye's view, are "safeguard measures in all but their name" 109,
as they meet the "definitional criteria" of safeguard measures.110 Türkiye argues that the Section 232
measures "suspend, in whole or in part, a GATT obligation or withdraw or modify a GATT concession"
by imposing on aluminium and steel products duties inconsistent with Articles II:1(a) and II:1(b) of
the GATT 1994, and quantitativ e limitations inconsistent with Article XI:1 of the GATT 1994.111
Türkiye also contends that the Section 232 measures pursue the "specific objective" of preventing
or remedying serious injury to domestic industries of the United States, which is the "most central"
aspect of these measures.112 In support of this contention, Türkiye refers to several legal instruments
issued by the United States' authorities, including the reports in the investigations that led to the
adoption of the Section 232 measures and th e proclamations providing for the Section 232
measures.113 For Türkiye, the examination of whether a measure is a safeguard measure should be
based on its objective features114, including its design, structure, and operation.115
7.10. Second, Türkiye maintains that the purpose, structure, and operation of its additional duties
measure indicate a "clear link" between the United States' Section 232 measures on steel and
aluminium, on the one hand, and Türkiye's measure, on the other hand. In Türkiye's view, it is
illustrative in this respect that its additional duties measure has reflected the level of suspension in
the United States' Section 232 measures.116
7.11. In the light of this characterization of its measure under Article 8.2 of the Agreement on
Safeguards and Article XIX:3(a) of the GATT 1994, Türkiye maintains that the application of

103 United States' communications (20 January and 10 February 2023).
104 Türkiye's response to Panel question No. 11, second written submission, para. 2.8.
105 Türkiye's second written submission, para. 2.19.
106 Türkiye's second written submission, para. 2.23; opening statement at the first meeting of the Panel,
paras. 23-26.
107 Türkiye's response to Panel question No. 27.
108 Türkiye's response to Panel question No. 15(b).
109 Türkiye's second written submission, para. 2.26.
110 Türkiye's first written submission, paras. 4.45-4.46.
111 Türkiye's first written submission, paras. 4.45 and 4.49.
112 Türkiye's first written submission, para. 4.50.
113 Türkiye's first written submission, paras. 4.52-4.62.
114 Türkiye's first written submission, para. 4.19.
115 Türkiye's response to Panel question Nos. 18 and 58.
116 Türkiye's second written submission, para. 2.28.

Articles I and II of the GATT 1994 is "suspended" in respect of its measure, and that, therefore, the
Panel should reject the United States' claims as they are based on "improper", "inapplicable" legal
provisions.117 Türkiye further notes that the United States has not made any claims under
Article XIX:3(a) of the GATT 1994 or Article 8.2 of the Agreement on Safeguards.118
7.12. Türkiye agrees with the United States that there is no right to impose "rebalancing measures"
under Article 8.2 of the Agreement on Safeguards or Article XIX:3(a) of the GATT 1994 in response
to a measure falling under Article 11.1(c) of the Agreement on Safeguards.119 In this regard, Türkiye
notes that Article 11.1 of the Agreement on Safeguards draws a distinction between "emergency
action[s] on imports … as set forth in Article XIX of GATT 1994" and "measures sought, taken or
maintained by a Member pursuant to provisions of GATT 1994 other than Article XIX"120, the latter
of which fall outside the scope of the Agreement on Safeguards under Article 11.1(c).121 At the same
time, for Türkiye, a measure falling under Article 11.1(c) of the Agreement on Safeguards must be
consistent with a provision of the GATT 1994 other than Article XIX.122 Noting the United States'
argument that it has adopted the Section 232 measures pursuant to Article XXI of the GATT 1994,
Türkiye argues that the Section 232 measures can only be considered to be "pursuant to" Article XXI
if they comply with the requirements of that provision. 123 In Türkiye's view, however, the
United States has not justified its Section 232 measures under Article XXI.124
7.13. Türkiye further maintains that whether a measure falls within the scope of Articles 11.1(a) or
11.1(c) of the Agreement on Safeguards must be determined objectively by analysing the design,
structure, and expected operation of the measure, and "in particular whether the measure possesses
the constituent features of a safeguard measure … within the meaning of Article XIX". 125 Türkiye
argues that giving effect to Article 11.1(c) does not require that the subjective intent of a regulating
Member should be decisive rather than the objective design of a measure, and that t he intent of a
Member is only relevant to the extent that it is "embodied" in the objective features of the
measure.126
7.14. In its comments on the findings by the panel in US – Steel and Aluminium Products (Turkey)
concerning the applicability of the WTO safegu ards regime to the Section 232 measures, Türkiye
argues that this Panel is not bound by either the factual or the legal findings of another panel, and
must conduct its own objective assessment of the matter before it. Further, Türkiye agrees with the
legal standard articulated in that panel report for the characterization of measures under the
Agreement on Safeguards, but not with that panel's application of the legal standard to the facts,
which, in Türkiye's view, assigned excessive weight to the United States' subjective designation and
labelling of the Section 232 measures.127
7.1.2 Analysis by the Panel
7.1.2.1 Introduction
7.15. The parties hold diverging views on which covered agreement applies to the measure at issue
in this dispute. On the one hand, Türkiye argues that its additional duties measure is subject to
Article 8.2 of the Agreement on Safeguards and Article XIX:3(a) of the GATT 1994, and therefore
that the application of Articles I and II of the GATT 1994 to the measure is suspended. 128 On the
other hand, the United States maintains that the challenged measure is subject to Articles I and II

117 Türkiye's second written submission, para. 2.52.
118 Türkiye's second written submission, para. 1.6.
119 Türkiye's response to Panel question No. 77.
120 Türkiye's response to Panel question No. 23.
121 Türkiye's response to Panel question No. 23; opening statement at the second meeting of the Panel,
para. 2.29.
122 Türkiye's response to Panel question Nos. 23 and 78. According to Türkiye, this is supported by the
Spanish version of Article 11.1(c), which uses the term "de conformidad con". (Ibid.)
123 Türkiye's response to Panel question No. 88.
124 Türkiye's comments on the United States' response to Panel question No. 78.
125 Türkiye's second written submission, para. 2.41; response to Panel question No. 82.
126 Türkiye's opening statement at the second meeting of the Panel, para. 2.29.
127 Türkiye's communications (20 January and 10 February 2023).
128 Türkiye's first written submission, paras. 1.5-1.9; opening statement at the first meeting of the
Panel, para. 5.

of the GATT 1994, and that Article 8.2 of the Agreement on Safeguards and Article XIX:3(a) of the
GATT 1994 are not applicable.129
7.16. The Panel will begin by setting out its understanding of the provisions in the DSU concerning
the assessment of the applicability of the relevant covered agreements in a dispute. The Panel will
then decide the order in which it will conduct its analysis. Specifically, the Panel will decide whether
it will begin with a review of the United States' claims under Articles I and II of the GATT 1994 before
examining Türkiye's argument that the application of the obligations and concessions under those
two provisions is suspended within the meaning of Article 8.2 of the Agreement on Safeguards and
Article XIX:3(a) of the GATT 1994, or vice versa.
7.1.2.2 The Panel's duty to assess the applicability of the relevant covered agreements
7.17. Article 11 of the DSU requires a panel to make "an objective assessment of the matter before
it, including an objective assessment of the applicability of and conformity with the relevant covered
agreements". This requirement applies in all disputes, including those where the parties agree on
which relevant covered agreements apply to the measures at issue.130 In the specific circumstances
of this case, the requirement to make an objective assessment of the applicability of the relevant
covered agreements is of particular significance given the parties' disagreement.
7.18. Under Article 7.2 of the DSU, a panel is required to address "the relevant provisions in any
covered agreement or agreements cited by the parties to the dispute". In this dispute, while the
United States has raised claims under Articles I and II of the GATT 1994 in its panel request, Türkiye
has identified Article 8.2 of the Agreement on Safeguards and Article XIX:3(a) of the GATT 1994 as
the provisions applicable to the additional duties measure. Both parties have made extensive
arguments regarding the applicability (or non -applicability) of these provisions to the measure at
issue. The Panel therefore considers that all of these provisions are "relevant" within the meaning
of Article 7.2 of the DSU and must be addressed in the Panel's analysis.
7.19. Reading Articles 7.2 and 11 of the DSU together, the Panel is of the view that, in making an
objective assessment of the matter before it, it must determine which provisions of the covered
agreements apply to Türkiye's additional duties measure. To examine the United States' claims
under Articles I and II of the GATT 1994 without determining their relationship with other provisions
raised by Türkiye (specifically, Article 8.2 of the Agreement on Safeguards and Article XIX:3(a) of
the GATT 1994) would overlook a disputed issue between th e parties and not assist the DSB "in
making the recommendations or in giving the rulings provided for in the covered agreements", as
prescribed in Article 11 of the DSU. The Panel further considers that this would be at odds with the
aim of the dispute settlement mechanism, as set out in Article 3.7 of the DSU, of securing a positive
solution to a dispute.
7.20. The Panel is mindful of the limits of its authority when assessing the applicability of the
relevant covered agreements to the measure at issue in this d ispute. Specifically, examining the
applicability of Article 8.2 of the Agreement on Safeguards and Article XIX:3(a) of the GATT 1994 to
Türkiye's additional duties measure does not imply that the Panel may make findings on the
consistency of the additional duties measure with those two provisions. While Articles 11 and 7.2 of
the DSU require the Panel to determine the provisions applicable to the additional duties measure,
the Panel can only make findings on the claims raised and provisions listed in the U nited States'
panel request 131, which does not include Article 8.2 of the Agreement on Safeguards and
Article XIX:3(a) of the GATT 1994. Accordingly, the Panel will only consider Article 8.2 of the
Agreement on Safeguards and Article XIX:3(a) of the GATT 1994 to the extent necessary to
determine the applicability of these provisions to the measure at issue.

129 United States' first written submission, paras. 38 and 55; second written submission, paras. 20
and 91.
130 Appellate Body Report, Indonesia – Iron or Steel Products, para. 5.32.
131 A panel making findings on provisions that are not listed in the panel request would be acting ultra
petita, and thus inconsistently with Article 11 of the DSU. Appellate Body Report, Chile – Price Band System,
para. 173.

7.1.2.3 Order of analysis
7.21. The Panel now turns to consider the order in which to conduct its analysis. One possibility
would be to begin by examining the United States' claims under Articles I and II of the GATT 1994,
and then proceeding to assess the applicability of Article 8.2 of the Agreement on Safeguards and
Article XIX:3(a) of the GATT 1994 to Türkiye's additional duties measure. The United States favours
this approach.132 Alternatively, the Panel could begin by examining the applicability of Article 8.2 of
the Agreement on Safeguards and Article XIX:3(a) of the GATT 1994. Under this approach, the Panel
would only examine the United States' claims under Articles I and II of the GATT 1994 if it were to
conclude that Article 8.2 of the Agreement on Safeguards and Article XIX:3(a) of the GATT 1994 do
not apply to the additional duties measure . Türkiye and several third parties are in favour of this
option.133
7.22. Neither the DSU nor the relevant provisions of the GATT 1994 or the Agreement on
Safeguards prescribe a mandatory order of analysis that must be followed in addressing the issues
raised in this dispute. The Panel thus has discreti on to structure its order of analysis in the way it
considers most appropriate, provided that its choice is in line with its mandate and functions as laid
down in the DSU.134
7.23. In the specific circumstances of this case, the Panel considers that beginning with the question
of whether Article 8.2 of the Agreement on Safeguards and Article XIX:3(a) of the GATT 1994 apply
to Türkiye's additional duties measure is the most appropriate course of action, for the reasons that
follow.
7.24. Article XIX:3(a) of the GATT 1994 allows Members to "suspend … the application … of …
substantially equivalent concessions or other obligations under this Agreement" to the trade of
another Member taking action under Article XIX:1 of the GATT 1994. Article 8.2 of the Agreement
on Safeguards, which clarifies the disciplines of Article XIX:3(a) of the GATT 1994135, similarly allows
Members, under certain conditions, to "suspend … the application of substantially equivalent
concessions or other obligations under GATT 1994" to the trade of another Member applying a
safeguard measure. Measures falling within the scope of Article 8.2 of the Agreement on Safeguards
and Article XIX:3(a) of the GATT 1994 thus "suspend" the application of concessions or other
obligations under the GATT 1994. In the context of these two provisions, the Panel understands the
notion of a suspension of concessions or other obligations to mean that, provided certain conditions
are met, Members affected by the application of a safeguard measure m ay temporarily lift the
application of tariff concessions or other GATT obligations vis-à-vis the Member applying the
safeguard measure. In such cases, measures falling within the scope of Article 8.2 of the Agreement
on Safeguards and Article XIX:3(a) of the GATT 1994 would not simultaneously be subject to GATT
rules governing tariff concessions or other obligations that have been suspended.
7.25. The Panel therefore considers it most logical to begin its analysis by first determining whether
Article 8.2 of the Agreement on Safeguards and Article XIX:3(a) of the GATT 1994 apply to Türkiye's
additional duties measure, suspending concessions and obligations under Articles I and II of the
GATT 1994. If that were the case, the Panel would have to conclude its analys is with a finding that
Articles I and II of the GATT 1994 do not apply to Türkiye's additional duties measure. If, however,
the Panel were to find that Article 8.2 of the Agreement on Safeguards and Article XIX:3(a) of the
GATT 1994 do not apply to the measure at issue, this would mean that the application of Articles I
and II of the GATT 1994 has not been suspended. Consequently, the Panel would need to review
the consistency of Türkiye's additional duties measure with the latter set of provisions, as per the
claims raised by the United States.
7.26. Beginning with an assessment of the applicability of Article 8.2 of the Agreement on
Safeguards and Article XIX:3(a) of the GATT 1994 has the benefit of allowing the Panel to examine

132 United States' response to Panel question No. 11.
133 Türkiye's response to Panel question No. 11; Canada's response to Panel question No. 3(a); China's
response to Panel question No. 3(a); European Union's response to Panel question No. 3(a); Japan's response
to Panel question No. 3(a); Norway's response to Panel question No. 3; Russian Federation's response to Panel
question No. 3; Switzerland's response to Panel question No. 3; Ukraine's third-party submission, para. 15.
134 See Appellate Body Report, Colombia – Textiles, para. 5.20.
135 Agreement on Safeguards, preamble, second recital: "Recognizing the need to clarify and reinforce
the disciplines of GATT 1994, and specifically those of its Article XIX (Emergency Action on Imports of
Particular Products) …".

the United States' claims under Articles I and II of the GATT 1994 only to the extent necessary, that
is, only if the Panel determines that those provisions actually apply to Türkiye's additional duties
measure. Otherwise, the Panel would need to make interim findings under Articles I and II of the
GATT 1994, which would become moot if the Panel subsequently were to find that the application of
those provisions to the additional duties measure is suspended under Article 8.2 of the Agreement
on Safeguards and Article XIX:3(a) of the GATT 1994.
7.27. Accordingly, the Panel will proceed to examine whether Article 8.2 of the Agreement on
Safeguards and Article XIX:3(a) of the GATT 1994 apply to the additional duties measure. The Panel
commences by interpreting these provisions in accordance with the customary rules of interpretation
of public international law.136
7.1.2.4 Interpretation of Article 8.2 of the Agreement on Safeguards and Article XIX:3(a)
of the GATT 1994
7.28. Article 8.2 of the Agreement on Safeguards (Level of Concessions or Other Obligations) reads:
If no agreement is reached within 30 days in the consultations under paragraph 3 of
Article 12, then the affected exporting Members shall be free, not later than 90 days
after the measure is applied, to suspend, upon the expiration of 3 0 days from the day
on which written notice of such suspension is received by the Council for Trade in Goods,
the application of substantially equivalent concessions or other obligations under
GATT 1994, to the trade of the Member applying the safeguard measure, the suspension
of which the Council for Trade in Goods does not disapprove.
7.29. Article XIX:3(a) of the GATT 1994 (Emergency Action on Imports of Particular Products )
reads:
If agreement among the interested contracting parties with respect to the action is not
reached, the contracting party which proposes to take or continue the action shall,
nevertheless, be free to do so, and if such action is taken or continued, the affected
contracting parties shall then be free, not later than ninety days after suc h action is
taken, to suspend, upon the expiration of thirty days from the day on which written
notice of such suspension is received by the CONTRACTING PARTIES, the application to
the trade of the contracting party taking such action, or, in the case envi saged in
paragraph 1 (b) of this Article, to the trade of the contracting party requesting such
action, of such substantially equivalent concessions or other obligations under this
Agreement the suspension of which the CONTRACTING PARTIES do not disapprove.
7.30. Article 8.2 of the Agreement on Safeguards set s out the right of a Member "to suspend …
concessions or other obligations under GATT 1994 [] to the trade of" another Member, provided that
certain conditions are met. The exercise of this right is part of a process laid down in Article 8 of the
Agreement on Safeguards designed to preserve the level of concessions and other obligations
existing under the GATT 1994.
7.31. In this respect, Article 8.1 of the Agreement on Safeguards requires Members proposing to
apply a safeguard measure (or seeking to extend its application) to endeavour to maintain, vis-à-vis
other Members affected by that safeguard measure, a level of concessions or other obligations
substantially equivalent to that existing under the GATT 1994. To this effect, Article 8.1 of the
Agreement on Safeguards establishes that the Members concerned may agree on adequate means
of trade compensation for the adverse effects of the safeguard measure on their trade. Article 8.2
of the Agreement on Safeguards then stipulates that, if the Member applying the safeguard measure
and the affected exporting Members fail to reach an agreement on adequate means of trade
compensation, the affected Members shall have the right, subject to certain conditions, to suspend
the application of substantially equivalent concessions or other obligations under the GATT 1994 to
the trade of the Member applying the safeguard measure. Next, Article 8.3 of the Agreement on
Safeguards sets out certain temporal and substantive limitations o n the exercise of the right to

136 Article 3.2 of the DSU.

suspend concessions or other obligations under the GATT 1994 vis-à-vis the Member applying a
safeguard measure.
7.32. The Panel considers that the ordinary meaning of the terms of Article 8.2 of the Agreement
on Safeguards plainly links the right to suspend concessions or other obligations under the
GATT 1994 to the application of a safeguard measure by another Member. Indeed, the provision
stipulates that affected exporting Members "shall be free … to suspend … the application of
substantially equivalent concessions or other obligations … to the trade of the Member applying the
safeguard measure".137 In the Panel's view, this language indicates that the right under Article 8.2
of the Agreement on Safeguards becomes available only to rebalance the adverse effects of a
safeguard measure. The French and Spanish versions of Article 8.2 of the Agreement on Safeguards
equally reserve the right provided in that provision only to Members affected by a " mesure de
sauvegarde" or a "medida de salvaguardia".138
7.33. An examination of the text of Article 8.2 of the Agreement on Safeguards shows that the right
to suspend concessions or other obligations under the GATT 1994 established in this provision is
subject to several requirements, including that: (a) no agreement on adequate means of trade
compensation maintaining a level of concessions or other obligations substantially equivalent to
those existing under the GATT 1994 is reached between the Member proposing to apply or extend
a safeguard measure and other Members having a substantial interest as exporters of the product
concerned, within 30 days from the application of the safeguard measure; (b) not more than 90
days have passed from the application of the safeguard measure; and (c) a Member affected by a
safeguard measure suspends the application of "substantially equivalent" concessions or other
obligations to the trade of the Member applying the safeguard measure. The Panel observes that all
of these requirements are contingent upon a safe guard measure being applied or extended by
another Member.139
7.34. The immediate context of Article 8.2 of the Agreement on Safeguards supports the Panel's
understanding. Article 8 of the Agreement on Safeguards refers to "safeguard measure" five times,
and to "such a measure" twice. Only in one case does Article 8 refer to "the measure", without
further qualification, at the end of the final sentence of paragraph 1. There, the provision stipulates
that the Members concerned may agree on adequate means of trade compensation for the adverse
effects of "the measure" on their trade. For the Panel, this can only be read as referring to the
"safeguard measure" mentioned at the beginning of the paragraph, which is the basis for the
negotiations and eventual agreement foreseen in this final sentence. This understanding is consistent
with the logic and the structure of Article 8 of the Agreement on Safeguards as a whole, which, as
noted above, envisages a process that is premised on the adoption or extension of a safeguar d
measure. All other steps outlined in Article 8 of the Agreement on Safeguards flow from, and depend
on, this premise. The immediate context of Article 8.2 of the Agreement on Safeguards thus
underscores that a safeguard measure is a necessary pre condition and the basis for the rights and
procedures laid out therein.
7.35. The Panel's understanding of Article 8.2 of the Agreement on Safeguards is also consistent
with the broader context of the Agreement on Safeguards. In this connection, the Panel considers
Article 11.1 of the Agreement on Safeguards (Prohibition and Elimination of Certain Measures) to be
particularly relevant. This provision establishes certain rights and obligations for Members depending
on the characterization of a measure under the Agreement on Safeguards. First, Article 11.1(a)
stipulates that Members "shall not take or seek any emergency action on imports of particular
products as set forth in Article XIX of GATT 1994 unless such action conforms with the provisions of
that Article applied in accordance with this Agreement". This provision must be read in conjunction
with Article 1 of the Agreement on Safeguards, according to which the Agreement "establishes rules
for the application of safeguard measures which shall be understood to mean tho se measures
provided for in Article XIX of GATT 1994". Thus, Article 11.1(a) of the Agreement on Safeguards

137 Emphasis added.
138 Under Article 33(1) of the Vienna Convention, "[w]hen a treaty has been authenticated in two or
more languages, the text is equally authoritative in each language, unless the treaty provides or the parties
agree that, in case of divergence, a particular text shall prevail".
139 A fourth requirement in Article 8.2 of the Agreement on Safeguards envisages that the right to
suspend concessions or other obligations be exercised upon expiration of 30 days from the day on which
written notice of the proposed suspension of concessions or other obligations is received by the Council for
Trade in Goods, provided that the latter does not disapprove it.

establishes that Members can take or seek safeguard measures, which must conform with Article XIX
of the GATT 1994 applied in accordance with the Agreement on Safeguards.
7.36. Under Article 11.1(b), Members shall not seek, take , or maintain "any voluntary export
restraints, orderly marketing arrangements or any other similar measures on the export or the
import side". To the extent that any such measures were in effect on the date of entry into force of
the WTO Agreement, they should have either been phased out within a short time -frame after the
entry into force of the Agreement on Safeguards or brought into conformity with the provisions
thereof.
7.37. Finally, Article 11.1(c) provides that the Agreement on Safeguards does not apply to
"measures sought, taken or maintained by a Member pursuant to provisions of GATT 1994 other
than Article XIX, and Multilateral Trade Agreements in Annex 1A other than this Agreement, or
pursuant to protocols and agreements or arrangements concluded within the framework of
GATT 1994".
7.38. Article 11.1 of the Agreement on Safeguards conditions the disciplines applicable to measures
upon their characterization under the three subparagraphs of that provision. If a Member is seeking
or taking a safeguard measure, that Member is subject to several obligations under the Agreement
on Safeguards. This includes endeavouring "to maintain a substantially equivalent level of
concessions or o ther obligations to that existing under the GATT 1994 between it and exporting
Members" affected by the safeguard measure as provided in Article 8.1. Relatedly, Members affected
by a safeguard measure have a right to suspend concessions or other obligations in response to that
measure under the terms of Article 8.2 of the Agreement on Safeguards. This right is, however, not
available if the underlying measure has a different characterization under the subparagraphs of
Article 11.1 of the Agreement on Safeguards, and is correspondingly subject to different legal
disciplines.
7.39. Reading the multiple references to a "safeguard measure" in Article 8 of the Agreement on
Safeguards in this broader context, the Panel considers that the characterization of an un derlying
measure as a safeguard measure or otherwise is a necessary analytical step in determining the
applicability or inapplicability of Article 8.2 of the Agreement on Safeguards.
7.40. The Panel further considers this understanding to be consistent with the object and purpose
of the Agreement on Safeguards. The second recital of the Agreement's preamble recognizes "the
need to clarify and reinforce the disciplines of GATT 1994, and specifically those of its Article XIX
(Emergency Action on Imports of Particu lar Products ), to re -establish multilateral control over
safeguards and eliminate measures that escape such control". The preamble thus confirms the
distinct treatment of measures depending on their characterization under the Agreement on
Safeguards. In the Panel's view, such distinction is therefore central to the structure and logic of the
entire Agreement on Safeguards and should inform the reading of its provisions. In particular, this
suggests to the Panel that Article 8.2 of the Agreement on Safeguard s can only be interpreted as
concerning rights and obligations related to or flowing from safeguard measures, which are the
measures over which the Agreement on Safeguards establishes multilateral control.
7.41. Based on the foregoing, the Panel considers that t he ordinary meaning of the terms of
Article 8.2 of the Agreement on Safeguards, in their context and in the light of the object and purpose
of the Agreement on Safeguards, conditions the right to suspend concessions or other obligations
under the GATT 1994 upon a "safeguard measure" being applied by another Member.
7.42. Article XIX:3(a) of the GATT 1994 is the other relevant provision for the purposes of the
Panel's assessment. According to Article XIX:3(a), a Member affected by "the action" taken or
continued by another Member under paragraph 1 of the same provision shall be free, subject to
certain conditions, to suspend the application of GATT concessions or obligations to the trade of the
Member taking such action. Article XIX:3(a) of the GATT 1994 also provi des that the GATT
concessions or obligations so suspended must be "substantially equivalent to" the "action" envisaged
under Article XIX:1 of the GATT 1994.
7.43. Under Article XIX:3(a) of the GATT 1994, for a Member to have a right to suspend concessions
or other obligations under the GATT 1994, another Member must have taken or continued an "action"
under Article XIX:1 of the GATT 1994. According to Article 1 of the Agreement on Safeguards,

measures provided for in Article XIX of the GATT 1994 shall be underst ood to be safeguard
measures. It follows that, like Article 8.2 of the Agreement on Safeguards, Article XIX:3(a) of the
GATT 1994 establishes a conditional right to suspend concessions or other obligations under the
GATT 1994 in response to a safeguard mea sure. Thus, in the Panel's view, the application of a
safeguard measure is a necessary precondition under both Article 8.2 of the Agreement on
Safeguards and Article XIX:3(a) of the GATT 1994 for this right to become available to affected
Members.
7.44. The Panel notes the parties' agreement that, in the absence of a safeguard measure applied
by a Member, another Member would not have the right, under Article 8.2 of the Agreement on
Safeguards and Article XIX:3(a) of the GATT 1994, to suspend concessions or other obligations
under the GATT 1994.140 The Panel's interpretation of those two provisions, as set out above,
confirms this. Accordingly, based on its understanding of the text, logic, and structure of the relevant
provisions of the Agreement on Safeguards and the GATT 1994, the Panel considers that whether
Article 8.2 of the Agreement on Safeguards and Article XIX:3(a) of the GATT 1994 apply to Türkiye's
additional duties measure depends on the characterization under the Agreement on Safeguards of
the underlying measure adopted by the United States.
7.1.2.5 Whether Article 8.2 of the Agreement on Safeguards and Article XIX:3(a) of the
GATT 1994 apply to Türkiye's additional duties measure
7.45. The United States' measures, in response to which Türkiye has imposed the additional duties
measure, are the measures "Adjusting Imports of Aluminum" and "Adjusting Imports of Steel" into
the United States (the Section 232 measures). 141 Both parties have submitted arguments and
evidence concerning the background, legal basis, and application of these measures.142
7.46. In the light of its earlier conclusion that the applicability of Article 8.2 of the Agreement on
Safeguards and Article XIX:3(a) of the GATT 1994 to the additional duties measure depends on
whether a Member has applied a safeguard measure, the Panel does not consider that it can make
an objective assessment of the applicability of the relevant provisions of the covered agreements to
the measure at issue in this dispute without reviewing the characterization of the Section 232
measures under the Agreement on Safeguards. In the Panel's view, the examination of the
arguments and evidence submitted by the parties in this connection is essential to secure a positive
solution to the present dispute. The Panel will accordingly proceed to examine the characterization
of the Section 232 measures under the Agreement on Safeguards.
7.47. The Panel recalls that Article 11.1 of the Agreement on Safeguards stipulates the disciplines
that apply to a measure depending upon its characterization under that provision.143 Türkiye argues
that the Section 232 measures are "safeguard measures" under the Agreement on Safeguards,
which m ust conform to the disciplines set out in Article 11.1(a) of that Agreement (namely,
Article XIX of the GATT 1994 applied in accordance with the Agreement on Safeguards). In the
United States' view, the Section 232 measures are "measures sought, taken or m aintained …
pursuant to provisions of GATT 1994 other than Article XIX" within the meaning of Article 11.1(c) of
the Agreement on Safeguards, to which that Agreement "does not apply".
7.48. The Panel observes that, in relation to the applicability of the Agreement on Safeguards, both
parties agree that Article 11.1(c) excludes certain measures from the scope of application of that
Agreement.144 They further acknowledge that Members affected by measures to which the
Agreement on Safeguards does not apply do not ha ve the right to take action under Article 8.2 of
the Agreement on Safeguards and Article XIX:3(a) of the GATT 1994.145 The point of contention

140 United States' second written submission, paras. 140-142; Türkiye's response to Panel question
Nos. 15 and 27.
141 Türkiye's first written submission, para. 1.2; opening statement at the first meeting of the Panel,
para. 3. The Panel notes that the applicability of the Agreement on Safeguards and Article XIX of the
GATT 1994 to the United States' Section 232 measures was also examined by the panel in US – Steel and
Aluminium Products (Turkey). Recalling its duty under Article 11 of the DSU, this Panel will make its own
objective assessment of the characterization of the Section 232 measures and will refer to the reasoning of
that panel to the extent that it finds the same relevant and persuasive.
142 United States' second written submission, section II; Türkiye's first written submission, section 4.1.4.
143 See para. 7.38 above.
144 United States' response to Panel question No. 77; Türkiye's response to Panel question No. 77.
145 United States' response to Panel question No. 77; Türkiye's response to Panel question No. 77.

between the parties, based on their differing interpretations of Article 11.1(c) of the Agreement on
Safeguards146, is whether the Section 232 measures are measures of the kind described in
Article 11.1(c).
7.49. The Panel will begin its analysis by setting out its understanding of Article 11.1(c) of the
Agreement on Safeguards, before turning to consider the S ection 232 measures in the light of its
interpretation of that provision.
7.1.2.5.1 Interpretation of Article 11.1(c) of the Agreement on Safeguards
7.50. Article 11.1 of the Agreement on Safeguards (Prohibition and Elimination of Certain Measures)
reads:
1. (a) A Member shall not take or seek any emergency action on imports of particular
products as set forth in Article XIX of GATT 1994 unless such action conforms with the
provisions of that Article applied in accordance with this Agreement.
(b) Furthermore, a Member sh all not seek, take or maintain any voluntary export
restraints, orderly marketing arrangements or any other similar measures on the export
or the import side.[3,4] These include actions taken by a single Member as well as actions
under agreements, arrangem ents and understandings entered into by two or more
Members. Any such measure in effect on the date of entry into force of the
WTO Agreement shall be brought into conformity with this Agreement or phased out in
accordance with paragraph 2.
(c) This Agreement does not apply to measures sought, taken or maintained by a
Member pursuant to provisions of GATT 1994 other than Article XIX, and Multilateral
Trade Agreements in Annex 1A other than this Agreement, or pursuant to protocols and
agreements or arrangements concluded within the framework of GATT 1994.
3 An import quota applied as a safeguard measure in conformity with the relevant provisions of
GATT 1994 and this Agreement may, by mutual agreement, be administered by the exporting
Member.
4 Examples of similar measures include export moderation, export-price or import-price monitoring
systems, export or import surveillance, compulsory import cartels and discretionary export or
import licensing schemes, any of which afford protection.
7.51. The Panel understands the phrase "[t]his Agreement does not apply" in Article 11.1(c) to
explicitly limit the scope of application of the Agreement on Safeguards by carving out "measures
sought, taken or maintained by a Member pursuant to provisions of GATT 1994 other than
Article XIX" from the purview of that Agreement.147 This is also recognized in the French and Spanish
texts of Article 11.1(c), in which the expressions " ne s'applique pas " and " no es aplicable ",
respectively, signify that the Agreement on Safeguards is inapplicable to certain " mesures" or
"medidas". Further, the Panel sees no indication in the text of the Agreement on Safeguards that
the carve-out in Article 11.1(c) is subject to or qualified by other provisions in that Agreement. The
Panel thus understands that all disciplines of the Agreement on Safeguards are inapplicable t o
measures of the kind described in Article 11.1(c) of the Agreement, including Article 8.2 of the
Agreement on Safeguards, which foresees that certain rights are available only to Members affected
by safeguard measures. Moreover, the Panel does not consid er that Article XIX:3(a) of the
GATT 1994 provides Members with a right to suspend concessions or other obligations under the

146 For Türkiye, a measure under Article 11.1(c) of the Agreement on Safeguards must be consistent
with a provision of the GATT 1994 other than Article XIX to be considered "pursuant to" such other provision.
(Türkiye's response to Panel question No. 78). The United States does not consider that Article 11.1(c) refers
to a measure in conformity with provisions of the GATT 1994 other than Article XIX, and notes the use of the
term "pursuant to" in that provision as opposed to "conforms with" used in Article 11.1(a). (United States'
comments on Türkiye's response to Panel question No. 78. See also United States' second written submission,
para. 115 (arguing that Article 11.1(c) precludes the application of the Agreement on Safeguards to any
measure sought, taken, or maintained "under" a provision of the GATT 1994 other than Article XIX)).
147 The Panel notes that, as per the terms of Article 11.1(c), the Agreement on Safeguards also does not
apply to measures sought, taken, or maintained pursuant to "Multilateral Trade Agreements in Annex 1A other
than this Agreement" or pursuant to "protocols and agreements or arrangements concluded within the
framework of GATT 1994".

GATT 1994 in response to measures that are not subject to the disciplines of the Agreement on
Safeguards.148
7.52. The expression "pursu ant to" in Article 11.1(c) of the Agreement on Safeguards links
"measures sought, taken or maintained by a Member" to "provisions of GATT 1994 other than
Article XIX". Depending on the context in which it is used, "pursuant to" may have different
meanings. A measure could be "pursuant to" a provision in the sense that it is consistent or in
conformity with that provision. A measure could also be "pursuant to" a provision when it is adopted
by virtue of or under that provision, regardless of whether it is co nsistent with that provision. The
Panel notes that the Agreement on Safeguards uses the expression "pursuant to" in different ways.
In some instances, the expression refers to a requirement of consistency with a provision of the
covered agreements; in othe rs, it appears to denote measures taken under a provision of the
covered agreements. 149 To determine the meaning of "pursuant to" in Article 11.1(c) of the
Agreement on Safeguards, the Panel will assess the ordinary meaning of this expression in the
context in which it appears in Article 11.1(c), and in the light of the object and purpose of the
Agreement on Safeguards, as required by the customary rules of interpretation of public
international law.150
7.53. In Article 11.1(c) of the Agreement on Safeguards, the e xpression "pursuant to" is part of a
provision that pertains to the applicability of the Agreement on Safeguards. Specifically, as
suggested by the opening phrase "[t]his Agreement does not apply", Article 11.1(c) determines
whether the disciplines applicable to a measure sought, taken, or maintained by a Member are not
those provided in the Agreement on Safeguards , but those contained in "provisions of GATT 1994
other than Article XIX". In the Panel's view, to condition the applicability of "provisions of GATT 1994
other than Article XIX" to a measure upon its consistency with such other provisions would conflate
two distinct issues, namely, the applicability of the relevant covered agreements and conformity
with those agreements. In this light, the Panel is not persuaded by Türkiye's argument that the
expression "pursuant to" in Article 11.1(c) denotes consistency with provisions of the GATT 1994
other than Article XIX. The Panel's understanding of Article 11.1(c) is that, in the case of measures
sought, taken, or maintained by virtue of or under "provisions of GATT 1994 other than Article XIX",
the Agreement on Safeguards does not apply, irrespective of whether the measures are consistent
with such other provisions.
7.54. The Panel finds support for this understanding of Article 11.1(c) in the context provided by
the other paragraphs of Article 11.1 of the Agreement on Safeguards. In stipulating that a safeguard
measure must be consistent with certain disciplines, Article 11.1(a) requires that the measure
"conforms with" the provisions of Article XIX of the GATT 1994 applied "in accordance with" the
Agreement on Safeguards. Similarly, concerning the prohibition on seeking, taking, or maintaining
voluntary export restraints, orderly marketing arrangements , or any other similar measures,
Article 11.1(b) directs that any such measures that are in effect on the date of the entry into force
of the WTO Agreement must be brought "into conformity with " the Agreement on Safeguards, or
phased out "in accordance with" Article 11.2 of that Agreement. Footnote 3 to Article 11.1(b)
specifies that an exporting Member may, under certain conditions, administer an import quota
applied as a safeguard measure "in conformity with the relevant provisions of GATT 1994 and [the
Agreement on Safeguards]". Thus, where Article 11.1 stipulates an obligation to conform with
provisions of the Agreement on Safeguards or with relevant provisions of the GATT 1994, it does so

148 The Panel recalls its understanding of the relationship between Article 8.2 of the Agreement on
Safeguards and Article XIX:3(a) of the GATT 1994 as set out in paragraph 7.43 above.
149 For example, Article 2.1 of the Agreement on Safeguards states that "[a] Member may apply a
safeguard measure to a product only if that Member has determined, pursuant to the provisions set out
below", that certain conditions exist. (emphasis added) In this instance, the expression "pursuant to" is part of
a provision that has been interpreted as establishing requirements with which Members must comply.
(Appellate Body Report, US – Steel Safeguards, para. 264). This expression is represented in the French and
Spanish texts of Article 2.1 with the terms "conformément" and "con arreglo a", respectively. Another example
is Article 10 of the Agreement on Safeguards, referring to "measures taken pursuant to Article XIX of
GATT 1947". The French and Spanish texts of Article 10 describe these measures as "mesures … au titre de
l'article XIX du GATT de 1947" and "medidas … al amparo del artículo XIX del GATT de 1947", respectively, and
the three authentic texts of this provision do not appear to be referring to consistency of measures with the
GATT 1947.
150 Article 3.2 of the DSU.

explicitly. In contrast, Article 11.1(c) of the Agreement on Safeguards does not contain any explicit
references to consistency with "provisions of GATT 1994 other than Article XIX".
7.55. This is equally true for the French text of the Agreement on Safeguards. In Articles 11.1(a)
and 11.1(b), the French text uses the terms " conforme au " (or the plural " conformes aux " as
appropriate) and "conformément" to signify obligations to comply with provisions of the Agreement
on Safeguards or relevant provisions of the GATT 1994. On the other hand, the French text of
Article 11.1(c) cond itions the inapplicability of the Agreement on Safeguards on whether the
measures in question were sought, taken, or maintained "en vertu de" provisions of the GATT 1994
other than Article XIX. The use of different terms in the English and French texts of Article 11.1(c)
when compared with the immediately preceding paragraphs of Article 11.1 indicates that "pursuant
to" in Article 11.1(c) has a different meaning to consistency with provisions of the GATT 1994 other
than Article XIX. Particularly noteworthy is the use of the expression "en vertu de" in the French text
of Article 11.1(c), which suggests that Article 11.1(c) concerns measures sought, taken , or
maintained by virtue of or under provisions of the GATT 1994 other than Article XIX.151
7.56. In t he Spanish text of the Agreement on Safeguards, the expression corresponding to
"pursuant to" in Article 11.1(c) is "de conformidad con". This expression has several meanings. 152
Depending on the context, the Spanish text of the Agreement on Safeguards uses the expression
"de conformidad con" variably to indicate "consistency" with the Agreement, as well as other kinds
of relationships between a measure and the relevant provision. For example, the Spanish expression
"conformidad con" in Articles 11.1(a) and 11.1(b) of the Agreement on Safeguards appears in the
English and French texts as "conformity with" and "conformément aux", respectively. In contrast, in
footnote 1 to Article 2.1 of the Agreement on Safeguards, the terms corresponding to "conformidad
con el presente Acuerdo" are "under this Agreement" and "au titre du présent accord" in English and
French respectively, which do not seem to denote consistency.153 Thus, the Panel does not consider
that the use of "de conformidad con" in Article 11.1(c) in and of itself denotes that "medidas que un
Miembro trate de adoptar, adopte o mantenga " must be consistent with " otras disposiciones del
GATT de 1994, aparte del artículo XIX" for the Agreement on Safeguards to be inapplicable. In the
Panel's view, read in the context of a provision governing the applicability of the Agreement on
Safeguards154, "de conformidad con" must be understood as referring to measures adopted by virtue
of or under certain provisions, but not requiring consistency with such provisions. Accordingly, the
three authentic language versions of Article 11.1(c) of the Agreement on Safeguards converge in
this respect.
7.57. The Panel's understanding of the terms of Article 11.1(c) comports with the broader context
of the Agreement on Safeguards. As c larified in Article 1 of the Agreement, the Agreement on

151 Dictionnaire Larousse de Français (defining the expression "en vertu de" as "en conséquence de",
"par l'effet de", or "au nom de"). The Panel notes that the expression "en vertu de" only features in two other
provisions of the Agreement on Safeguards, both of which confirm the Panel's understanding of this expression
as used in Article 11.1(c) of the Agreement. Article 8.1 of the Agreement on Safeguards refers to the level of
concessions and other obligations existing "en vertu du GATT de 1994", denoted in the English text as "under
GATT 1994", and thus does not suggest that concessions or obligations must be in conformity with GATT 1994.
Article 12.8 of the Agreement on Safeguards refers to notifications by Members "qui sont tenus de le faire en
vertu du présent accord". The terms corresponding to notifications "en vertu du présent accord" in the English
text of Article 12.8 are "by this Agreement". To denote the obligation of making such notifications, the terms
"by this Agreement" or "en vertu du présent accord" are used together with explicit references to a
requirement or, in French, the expression "[ils] sont tenus de le faire", respectively.
152 Diccionario de la Lengua Española, 22nd Edition (Real Academia Española, 2001), pp. 420-421
(defining "conformidad con" as "con arreglo a", "a tenor de", "en proporción o correspondencia a", or "de la
153 For other examples in the covered agreements, see Article 3.9 of the DSU (referring to "the rights of
Members to seek authoritative interpretation … through decision-making under the WTO Agreement" in
DSU (referring to "requests for consultations under the consultation provisions of the covered agreements" in
English, "demandes de consultations présentées au titre des dispositions des accords visés" in French, and
de los acuerdos abarcados" in Spanish); and Article 4.11 of the DSU (providing that a Member shall be free to
request "consultations under paragraph 1 of Article XXII", "consultations au titre du paragraphe 1 de
l'article XXII", and "consultas de conformidad con el párrafo 1 del artículo XXII" in English, French and Spanish,
respectively).
154 See para. 7.53 above.

Safeguards "establishes rules for the application of safeguard measures". This "General Provision"
resonates in other provisions of the Agreement on Safeguards, which broadly relate to one of two
enquiries: (i) whether there is a right to apply safeguard measures, and (ii) if so, whether that right
has been exercised within the limits set out in the Agreement.155 The Agreement on Safeguards thus
prescribes rules and requirements for a specific kind of measure identified in that Agreement. The
consistency of measures with "provisions of GATT 1994 other than Article XIX, and Multilateral Trade
Agreements in Annex 1A other than [the Agreement on Safeguards]" is not a matter regulated by
the Agreement on Sa feguards, and Article 11.1(c) must be interpreted taking this important
consideration into account.
7.58. In this connection, the Panel recalls its discussion above of the object and purpose of the
Agreement on Safeguards, which confirms that different disciplines apply to measures depending on
their characterization under the Agreement on Safeguards, as reflected in Article 11.1 of that
Agreement.156 In particular, the Agreement on Safeguards seeks to "re-establish multilateral control
over safeguards" (expresse d through the mandatory conditions in Article 11.1(a) with which
safeguard measures must conform) and to "eliminate measures that escape such control"
(expressed through the prohibition of the measures described in Article 11.1(b)). The object and
purpose of the Agreement on Safeguards is thus to regulate, and in particular to secure the
WTO-consistency of, measures of the kind described in Articles 11.1(a) and 11.1(b) of the
Agreement, and not those excluded from its scope under Article 11.1(c). Exclusion of such measures
from the Agreement on Safeguards is instrumental in order to preserve the rights of Members under
"the basic principles of GATT 1994" on which the Agreement on Safeguards is based. 157 The Panel
does not consider that an interpretation of Ar ticle 11.1(c) of the Agreement of the Safeguards that
brings the question of whether a measure is consistent with "provisions of GATT 1994 other than
Article XIX" within the scope of the Agreement on Safeguards would be consistent with this clearly
articulated aim and focus of the Agreement. The Panel's interpretation thus respects the distinct
treatment of measures under the Agreement on Safeguards depending on their characterization.158
7.59. The parties have also referred to supplementary means of interpretation, such as the
preparatory work of the Agreement on Safeguards, in support of their interpretative arguments.
Under Article 32 of the Vienna Convention on the Law of Treaties (Vienna Convention), the Panel
may have recourse to this preparatory work to confirm its interpretation of Article 11.1(c) set out
above. The Panel observes that early draft texts of the Agreement on Safeguards sought to preserve
the rights and obligations of contracting parties regarding trade -restrictive measures "taken in
conformity with" or "consistent with" other GATT provisions. 159 These references to conformity and
consistency were removed from subsequent drafts of the provision that became Article 11.1(c) of
the Agreement on Safeguards, in favour of the expression "p ursuant to".160 The Panel also notes
that references to conformity and consistency were only removed from Article 11.1(c) of the
Agreement on Safeguards, but retained in the other paragraphs of Article 11.1, which provide
context for the interpretation of Article 11.1(c). This preparatory work thus confirms the Panel's
understanding that Article 11.1(c) does not pertain to the consistency of measures excluded from
the scope of the Agreement on Safeguards.
7.60. Based on the foregoing, the Panel considers that Article 11.1(c) excludes from the scope of
the Agreement on Safeguards measures that are sought, taken, or maintained by virtue of or under
provisions of the GATT 1994 other than Article XIX. In the Panel's view, Article 11.1(c) is not
concerned with the consistency of such measures with the provisions of the GATT 1994 pursuant to
which they are sought, taken, or maintained.
7.61. The Panel now turns to certain interpretive arguments raised by the parties. Türkiye maintains
that, in the present di spute, whether a measure falls under the scope of Article 11.1(c) of the
Agreement on Safeguards must be determined "objectively" by analysing "in particular, whether the
measure presents the constituent features of a safeguard measure within the meaning o f

155 Appellate Body Report, US – Line Pipe, para. 84.
156 See para. 7.40 above.
157 Agreement on Safeguards, preamble, fourth recital.
158 See paras. 7.35-7.38 above.
159 Negotiating Group on Safeguards, Chairman's Report on Status of Work in the Negotiating Group
(13 July 1990), MTN.GNG/NG9/W/25/Rev.2, p. 3; Negotiating Group on Safeguards, Draft Text of an
Agreement (31 October 1990), MTN.GNG/NG9/W/25/Rev.3, p. 9.
160 Trade Negotiations Committee, Draft Final Act Embodying The Results of the Uruguay Round of
Multilateral Trade Negotiations (20 December 1991), MTN.TNC/W/FA, p. M.7.

Article XIX".161 The Panel understands Türkiye's argument to mean that the assessment of whether
the Section 232 measures were sought, taken , or maintained pursuant to provisions of the
GATT 1994 "other than Article XIX" should include consideration of wh ether these measures have
certain features of safeguard measures. The Panel is not persuaded by this argument. An
examination of measures under Article 11.1(c) of the Agreement on Safeguards must proceed on
the basis of the specific terms of that provision, which provide for the inapplicability of the Agreement
on Safeguards to measures adopted "pursuant to" another provision of the GATT 1994. The Panel
does not see in the text of Article 11.1(c) an additional requirement to determine "whether WTO
safeguard rules may be [] more suitable applicable provision[s] for these measures" as argued by
Türkiye.162 In this respect, the Panel understands that, in referring to provisions of the GATT 1994
"other than Article XIX", the terms of Article 11.1(c) call for determining whether another provision
of the GATT 1994 is the legal basis in the covered agreements by virtue of or under which a Member
has sought, taken, or maintained a measure.
7.62. The parties have also advanced certain interpretive arguments concerning the "definitional
criteria" of or "condition precedent" for safeguard measures.163 Noting the United States' arguments
under Article 11.1(c) of the Agreement on Safeguards, and in the light of the interpretation of that
provision rendered above, the Panel is of the view that it would be appropriate to first determine
whether the United States' Section 232 measures are excluded from the scope of the Agreement on
Safeguards by virtue of Article 11.1(c). Should the Panel find that the Section 232 measures are not
so excluded, it will then consider whether they can be characterized as measures regulated by the
Agreement on Safeguards and the legal standard for such characterization. Accordingly, the Panel
will now turn to examine whether the Section 232 measures were "sought, taken or maintained …
pursuant to provisions of GATT 1994 other than Article XIX".
7.1.2.5.2 Whether the United States' Section 232 measures are excluded from the scope
of application of the Agreement on Safeguards
7.63. The United States maintains that it adopted the Section 232 measures on aluminium and steel
imports pursuant to Article XXI of the GATT 1994, which concerns "Security Exceptions", and thus,
pursuant to a provision of the GATT 1994 other than Article XIX. Türkiye, however, argues that the
design, structure, and expected operation of the Section 232 measures demonstrate otherwise, and
relies, in support of this proposition, on the domestic legal basis for these measures, the reports in
the investigations leading to their adoption, and the legal instruments providing for the measures.
7.64. Based on the Panel's interpretation of Article 11.1(c) of the Agreement on Safeguards, the
Panel will examine whether the Section 232 measures were sought, taken, or maintained by virtue
of or under Article XXI of the GATT 1994, such that the Agreement on Safeguards does not apply.
In this respect, the Panel is guided by its duty under Article 11 of the DSU to conduct an objective
assessment of the matter before it , which in the context of Article 11.1(c) of the Agreement on
Safeguards pertains to the applicability of , and not consistency with , provisions of the GATT 1994
other than Article XIX. The Panel will assess the arguments and evidence advanced by the partie s
concerning the Section 232 measures in this light.
7.65. The domestic legal basis for the United States' measures was Section 232 of the Trade
Expansion Act of 1962 titled "Safeguarding national security" (Section 232).164 Under Section 232,
the United States' Secretary of Commerce may investigate "the effects on the national security of
imports of [an] article" into the United States.165 Based on the Secretary of Commerce's findings
and recommendations, the President of the United States may take action under S ection 232 to
adjust imports of the investigated article into the United States so that they will not threaten to
impair its national security.166 Section 232 also states that, in exercise of their respective authorities

161 Türkiye's response to Panel question Nos. 78 (arguing that "pursuant to" in Article 11.1(c) means "as
a first step, that a measure objectively falls within the relevant category", and contending that this must be
determined through consideration of whether the measure presents the "constituent features" of a safeguard
measure) and 82 (referring to the analysis of the "constituent features" of a safeguard measure in the context
of its submission on the distinction between safeguard measures and "measures taken under other GATT
permissive provisions, such as [Article XXI]").
162 See para. 6.12 above.
163 United States' first written submission, para. 71; Türkiye's first written submission, para. 4.8.
164 Section 232, (Exhibits USA-10, TUR-1).
165 Section 232(b), (Exhibits USA-10, TUR-1).
166 Section 232(c), (Exhibits USA-10, TUR-1).

under that provision, the President and the Secretary of Commerce "shall … give consideration to"
a non -exhaustive list of factors, such as the domestic production needed for the United States'
projected national defence requirements, the capacity of its domestic industries to meet such
requirements, and the importation of goods that affects the capacity of the United States to meet
such requirements.167
7.66. In April 2017, as authori zed under Section 232, the Secretary of Commerce began
investigations into the effects of aluminium and steel import s on the United States' national
security.168 These investigations concluded that excessive aluminium and steel imports were
weakening the United States' internal economy and, therefore, threatened to impair its national
security as defined in Section 232. In arriving at this conclusion, the Secretary of Commerce referred
to rising levels of imports of foreign aluminium and steel, and the "substantial risk" that this would
displace the United States' domestic capacity to produce aluminium and steel for criti cal
infrastructure and national defence.169 Specifically, the reports of these investigations note that "it
is the ability to quickly shift production capacity used for commercial products to defence and critical
infrastructure production that provides the United States a surge capability that is vital to national
security, especially in an unexpected or extended conflict or national emergency." Thus, in the
Secretary of Commerce's view, the risk to the financial viability of the United States' domestic
aluminium and steel industries, and their competitiveness in commercial markets, placed at risk the
United States' capability to meet its defence and critical infrastructure needs.170
7.67. Acting on these findings and the related recommendations, the President of the United States
issued several proclamations adjusting imports of aluminium and steel into the United States. These
proclamations constitute the Section 232 measures. They provide for (i) ad valorem tariffs of 10%
and 25% on aluminium and steel imports, respectively, applicable in addition to any duties provided
in the Harmonized Tariff Schedule of the United States171; (ii) exemptions for select countries from
these tariffs172; (iii) "quota treatment" for aluminium and steel imports from select countries173; and
(iv) a mechanism authorizing the United States' Secretary of Commerce to relieve certain aluminium
and steel imports from the aforementioned tariffs and quotas.174
7.68. The tariffs on aluminium and steel imports were imposed through Proclamat ions 9704 and
9705, respectively. These proclamations note that aluminium and steel articles are being imported
into the United States "in such quantities and under such circumstances as to threaten to impair the
national security of the United States", and state that the tariffs imposed are necessary to address
this threat. Specifically, the tariffs were imposed under these proclamations with a view to helping
domestic aluminium and steel industries, so as to reduce the United States' need to rely on foreign
producers for aluminium and steel and, as a result, "ensure that domestic producers can continue
to supply all the [aluminium and steel] necessary for critical industries and national defense" .
Proclamations 9704 and 9705 reason that , without the relief provided through these tariffs, the
United States' domestic industries would continue to decline, leaving the United States at risk of
becoming reliant on foreign producers to meet its national security needs concerning aluminium and

167 Section 232(d), (Exhibits USA-10, TUR-1). The Panel notes that these criteria are also specified in
the United States Code of Federal Regulations, Title 15, Part 705, (Exhibits USA-16, TUR-2) which sets forth
"the procedures by which the [United States Department of Commerce] shall commence and conduct an
investigation to determine the effect on the national security of the imports of any article" and based on which
"the Secretary shall make a report and recommendation to the President for action or inaction regarding an
adjustment of the imports of the article."
168 Section 232 investigation into steel imports, (Exhibits USA-21, TUR-3); Section 232 investigation into
aluminium imports, (Exhibits USA-22, TUR-4).
169 Section 232 investigation into steel imports, (Exhibits USA-21, TUR-3), p. 55; Section 232
investigation into aluminium imports, (Exhibits USA-22, TUR-4), p. 104.
170 Section 232 investigation into steel imports, (Exhibits USA-21, TUR-3), pp. 55-56; Section 232
investigation into aluminium imports, (Exhibits USA-22, TUR-4), p. 105.
171 Proclamation 9704, (Exhibits USA-24, TUR-7), p. 11621; Proclamation 9705, (Exhibits USA-23,
TUR-6), p. 11627.
172 Proclamation 9740, (Exhibits USA-27, TUR-10), p. 20685; Proclamation 9739, (Exhibits USA-28,
TUR-11), pp. 20678-20679; Proclamation 9759, (Exhibits USA-29, TUR-12), p. 25858; and Proclamation 9758,
(Exhibits USA-30, TUR-13), p. 25850.
173 Proclamation 9740, (Exhibits USA-27, TUR-10), Annex; Proclamation 9759, (Exhibits USA-29,
TUR-12), Annex; and Proclamation 9758, (Exhibits USA-30, TUR-13), Annex.
174 Proclamation 9704, (Exhibits USA-24, TUR-7), p. 11621; Proclamation 9705, (Exhibits USA-23,
TUR-6), p. 11627; Proclamation 9776, (Exhibits USA-33, TUR-16), p. 45020; and Proclamation 9777,
(Exhibits USA-32, TUR-15), p. 45026.

steel, a situation that the proclamations describe as "fundamentally inconsistent with the safety and
security of the American people".175
7.69. Proclamations 9704 and 9705, and the "national security interests" of the United States raised
therein, formed the basis for further action by the United States.176 In this respect, the Panel
considers relevant the exemptions granted to certain countries from the tariffs on aluminium and
steel imports. Following determinations that imports from those countries no longer threatened to
impair it s national security, the United States exempted (i) from tariffs on aluminium imports,
Argentina, Australia, Canada, and Mexico; and (ii) from tariffs on steel imports, Argentina, Australia,
Brazil, Canada, Mexico, and the Republic of Korea.177 These exemptions were granted on the basis
of "important security relationships" between the United States and the exempted countries, and
their shared concern regarding circumstances that threaten to impair national security, namely
global excess capacity in aluminium and steel.178 Proclamations 9710 and 9711 describe in greater
detail the various facets of th e United States' security relationships with the countries exempted
from the aluminium and steel tariffs, including security, defence and intelligence partnerships,
shared commitments towards addressing security concerns, and military alliances.179
7.70. The application of these tariffs and the related exemptions by the United States reveals the
design and expected operation of the Section 232 measures. In connection with the tariffs, the Panel
notes that Proclamations 9704 and 9705 provide for their modification or termination based on
monitoring and review of the "status of [aluminium or steel] imports with respect to the national
security" of the United States.180 The United States in fact modified the duty applicable to steel
imports from Türkiye following such monitoring and review.181 The Panel also considers relevant that
any exemptions from the aluminium and steel tariffs were temporarily applied 182, until the
United States secured "an effective, long-term alternative means" to address the contribution of the
exempted countries to the threatened impairment of its national security. 183 Such "long -term
alternative means" included quotas restricting the quantities of aluminium and steel imported into
the United States from the exempted country 184, which were previou sly identified by the
United States as appropriate means to ensure that the exemptions do not undermine the national
security objectives of the tariffs on aluminium and steel imports.185
7.71. The product coverage of the Section 232 measures is similarly reveali ng of the national
security objectives pursued by the United States in adopting these measures. Tariffs were imposed
on aluminium and steel articles that the United States found, following the investigations by the

175 Proclamation 9704, (Exhibits USA-24, TUR-7), pp. 11619-11620; Proclamation 9705,
(Exhibits USA-23, TUR-6), pp. 11626-11627.
176 Proclamation 9711, (Exhibits USA-25, TUR-8), p. 13361; Proclamation 9710, (Exhibits USA-26,
TUR-9), p. 13355; Proclamation 9740, (Exhibits USA-27, TUR-10), p. 20683; Proclamation 9739,
(Exhibits USA-28, TUR-11), p. 20677; Proclamation 9759, (Exhibits USA-29, TUR-12), p. 25857;
Proclamation 9758, (Exhibits USA-30, TUR-13), p. 25849; Proclamation 9772, (Exhibits USA-31, TUR-14),
p. 40429; Proclamation 9777, (Exhibits USA-32, TUR-15), p. 45025; and Proclamation 9776, (Exhibits USA-33,
TUR-16), p. 45019.
177 Proclamation 9740, (Exhibits USA-27, TUR-10), p. 20685; Proclamation 9739, (Exhibits USA-28,
TUR-11), pp. 20678-20679; Proclamation 9759, (Exhibits USA-29, TUR-12), p. 25858; Proclamation 9758,
(Exhibits USA-30, TUR-13), p. 25850; Proclamation 9894, (Exhibit TUR-44), p. 23988; and Proclamation 9893,
(Exhibit TUR-45), p. 23984.
178 Proclamation 9704, (Exhibits USA-24, TUR-7), p. 11620; Proclamation 9705, (Exhibits USA-23,
TUR-6), p. 11626.
179 Proclamation 9711, (Exhibits USA-25, TUR-8), pp. 13361-13362; Proclamation 9710,
(Exhibits USA-26, TUR-9), pp. 13355-13356.
180 Proclamation 9704, (Exhibits USA-24, TUR-7), pp. 11621-11622; Proclamation 9705,
(Exhibits USA-23, TUR-6), pp. 11627-11628.
181 Proclamation 9772, (Exhibits USA-31, TUR-14), p. 40429; Proclamation 9886, (Exhibit TUR-46),
p. 23421.
182 Proclamation 9711, (Exhibits USA-25, TUR-8), p. 13362; Proclamation 9710, (Exhibits USA-26,
TUR-9), p. 13356.
183 Proclamation 9740, (Exhibits USA-27, TUR-10), pp. 20683-20684; Proclamation 9759,
(Exhibits USA-29, TUR-12), pp. 25857-25858; and Proclamation 9758, (Exhibits USA-30, TUR-13), p. 25850.
184 Proclamation 9740, (Exhibits USA-27, TUR-10), p. 20685; Proclamation 9759, (Exhibits USA-29,
TUR-12), p. 25858; and Proclamation 9758, (Exhibits USA-30, TUR-13), p. 25850.
185 Proclamation 9711, (Exhibits USA-25, TUR-8), p. 13363; Proclamation 9710, (Exhibits USA-26,
TUR-9), p. 13357.

Secretary of Commerce, to have applicatio ns for defence and critical infrastructure. 186 The
Section 232 measures also include a mechanism under which certain aluminium and steel articles
which were otherwise subjected to tariffs and quotas could be excluded from them on the basis of
"specific national security considerations".187 This mechanism was elaborated in the rules issued by
the Bureau of Industry and Security of the United States Department of Commerce. The rules
provide that, in granting exclusions based on national security considerations, the United States
Department of Commerce can consider impacts on the United States' national security that may
result from not approving an exclusion. They additionally require that "the demonstrated concern
with [US] national security would need to be tangible and clearly explained and ultimately
determined by the [US] Government".188
7.72. In the Panel's view, the abovementioned features of the Section 232 measures demonstrate
that they were designed and expected to operate to address the threat to national security that the
United States had determined to arise from rising levels of aluminium and steel imports. The Panel
observes that the United States' national security objectives are reflected both in the application
(tariffs, quotas) and non -application (exemptions, exclusions) of the Section 232 measures. The
prescribed procedure for the adoption, modification, and removal of the Section 232 measures, and
especially the provisions made for consultations with domestic authorities such as the United States'
Secretary of Defense189, further support the Panel's view.
7.73. The United States also outlined its national security objectives relating to the Section 232
measures in its communications to WTO councils and committees, linking them to Article XXI of the
GATT 1994. Before adopting the Section 232 measures, the United States informed the Council for
Trade in Goods that its ongoing investigations into the effects of aluminium and steel imports on
national security were to determine whether those imports were threatening its ability to meet its
national security needs.190 Following the adoption of t he Section 232 measures, the United States
referred to the findings of its completed investigations and provided information "pursuant to
Section 232 of the Trade Expansion Act of 1962, as amended, and consistent with the Decision
Concerning Article XXI of the General Agreement taken by the GATT Council on
30 November 1982".191 In a communication addressed to the Committee on Safeguards, responding
to Türkiye's request for consultations on the Section 232 measures under Article 12.3 of the
Agreement on Safeguards, the United States noted the domestic legal basis pursuant to which it had
taken action, and reiterated that it had provided information to the WTO Council for Trade in Goods
"consistent with the Decision Concerning Article XXI of the General Agreeme nt taken by the GATT
Council on 30 November 1982". 192 Considered together with the features of the Section 232
measures discussed above, these communications indicate that the legal basis in the covered
agreements pursuant to which the United States has sought, taken, or maintained these measures
is Article XXI of the GATT 1994.
7.74. Türkiye argues that designation of a measure under domestic law and its notification or
non-notification to WTO bodies are not decisive of its characterization under the Agr eement on
Safeguards.193 The Panel agrees. At the same time, the Panel recalls that the characterization of the
measures in the present case must proceed from the terms of the relevant provision itself, that is
Article 11.1(c) of the Agreement on Safeguards. This provision calls for a determination of whether

186 See Proclamation 9704, (Exhibits USA-24, TUR-7), p. 11621; Proclamation 9705, (Exhibits USA-23,
TUR-6), p. 11627; Section 232 investigation into steel imports, (Exhibits USA-21, TUR-3), pp. 21-22 and
Appendices H and I; and Section 232 investigation into aluminium imports, (Exhibits USA-22, TUR-4),
pp. 24-38.
187 Proclamation 9704, (Exhibits USA-24, TUR-7), p. 11621; Proclamation 9705, (Exhibits USA-23,
TUR-6), p. 11627; Proclamation 9777, (Exhibits USA-32, TUR-15), p. 45026; and Proclamation 9776,
(Exhibits USA-33, TUR-16), p. 45020.
188 BIS rule of 11 September 2018, (Exhibit USA-35), p. 46062.
189 See Section 232(b), (Exhibits USA-10, TUR-1); Proclamation 9704, (Exhibits USA-24, TUR-7),
pp. 11621-11622; and Proclamation 9705, (Exhibits USA-23, TUR-6), pp. 11627-11628.
190 Council for Trade in Goods, Minutes of the meeting held on 10 November 2017, G/C/M/130.
191 Council for Trade in Goods, Minutes of the meeting held on 23 and 26 March 2018, G/C/M/131.
192 Committee on Safeguards, Communication from the United States in response to Turkey's request
circulated on 20 April 2018, G/SG/184. The United States noted that the proclamations constituting the
Section 232 measures were issued "pursuant to Section 232 of the Trade Expansion Act of 1962" and not
"pursuant Section 201 of the Trade Act of 1974, which is the law under which the United States imposes
safeguard measures". Accordingly, the United States maintained that the Section 232 measures were "not
safeguard measures" and declined to engage in consultations under the Agreement on Safeguards.
193 Türkiye's response to Panel question No. 79.

a Member has adopted measures acting under or by virtue of provisions of the GATT 1994 other
than Article XIX. In these circumstances, the Panel considers that the domestic legal basis and
procedures as well as notifications concerning the adoption of the measures are relevant evidence
of the legal basis under the covered agreements pursuant to which the Section 232 measures were
sought, taken, or maintained. The Panel further notes that it has not consi dered this evidence in
isolation, but in conjunction with aspects of the Section 232 measures that demonstrate how they
were designed, applied, and expected to operate.
7.75. Türkiye also argues that the reports of the investigation into aluminium and steel imp orts,
and the proclamations adjusting these imports into the United States, pursue the specific objective
of improving the economic health of the domestic aluminium and steel industries, which is the same
as the objective of safeguard measures. Türkiye contends that the Panel should accordingly find the
Agreement on Safeguards applicable to the Section 232 measures.194
7.76. The Panel is not persuaded by this argument. The Panel notes that the references to the
economic welfare of domestic industries in the instru ments mentioned above are in the context of
the relationship of such economic welfare to the United States' national security. Under Section 232,
the relevant factors for the consideration of the Secretary of Commerce and the President include
the impact o f foreign competition on the economic welfare of domestic industries, substantial
unemployment, decrease in revenues of government, and loss of skills or investment, among others.
These provide the basis under which the weakening of the United States' internal economy can be
determined by the relevant authorities of the United States to impair its national security. In the
same vein, the findings of the Secretary of Commerce on the impact of rising levels of imports on
domestic aluminium and steel industries, and the corresponding adjustments recommended, follow
the Secretary's conclusion that (i) certain aluminium and steel products , as well as their domestic
production, are essential to the United States' national security, national defence, and critical
infrastructure; and (ii) falling domestic capacity in these industries due to rising import competition
would place at risk the ability of the United States' domestic industries to cater to its national security
needs, particularly during an unexpected or extended conflict or national emergency.
7.77. The Section 232 measures further implement the recommendations of the Secretary of
Commerce, including with respect to reviving idled facilities, opening closed smelters and mills,
preserving necessary skills, and m aintaining or increasing production, for the specific purpose of
securing aluminium and steel necessary for critical industries and national defence. The references
to the economic welfare of the United States' domestic industries in the instruments considered
above thus constitute one aspect of the United States' determination that there exists a threat to its
national security. This aspect of the Section 232 measures cannot be divorced from its background
and context, which reflect the m easures' national security objectives and confirms that they were
sought, taken, or maintained pursuant to Article XXI of the GATT 1994.
7.78. Türkiye refers to a memorandum issued by the United States' Secretary of Defense, which
states that the findings of the investigations into aluminium and steel imports do not "impact the
ability of [Department of Defense] programs to acquire the steel or aluminum necessary to meet
national defense requirements". 195 According to Türkiye, this undermines the United States'
arguments concerning the national security objectives of the Section 232 measures.196 The Panel
notes that this memorandum was issued as part of the consultation process between the Department
of Commerce and the Department of Defense provided for in Section 232. The memorandum refers
to the risk posed to the United States' national security by imports of aluminium and steel and
"concurs with the Department of Commerce's conclusion that imports of foreign steel and aluminum
based on unfair trading practices impair the national security".197 In the Panel's view, this supports
the understanding set out above that the Section 232 measures pursue national security objectives.
The additional considerations raised by Türkiye regarding the United States' ability to acquire
aluminium and steel for its national defence needs pertain to whether the Section 232 measures
meet the requirements of Article XXI of the GATT 1994, rather than whether they were sought,
taken, or maintained pursuant to that provision. In this con nection, the Panel recalls its earlier
conclusion that Article 11.1(c) concerns whether certain measures were sought, taken , or

194 Türkiye's first written submission, para. 4.54.
195 United States Secretary of Defense Memorandum, (Exhibit TUR-19), p. 1.
196 Türkiye's communication (20 January 2023) also noting that, according to this memorandum, "the
[US] military requirements for steel and aluminum each represent about three percent of [US] production."
197 United States Secretary of Defense Memorandum, (Exhibit TUR-19), p. 1.

maintained by virtue of or under provisions of the GATT 1994 other than Article XIX, and not whether
they are consistent with such other provisions.
7.79. Finally, the Panel notes that the characterization of the Section 232 measures under the
Agreement on Safeguards was previously examined by the panel in United States – Steel and
Aluminium Products (Turkey). As noted above198, the Panel sought the parties' views on the findings
in that panel report concerning the applicability of the WTO safeguards regime to the Section 232
measures and on the relevance of those findings for this Panel's analysis, in response to which both
parties emphasized this Panel's duty under Article 11 of the DSU. Following its examination of the
Section 232 measures, the Panel concurs with the findings of the panel in United States – Steel and
Aluminium Products (Turkey) that "the United States' determination of a threat to its national
security under Section 232 is a central aspect of the measures with respect to their legal
characterization as being sought, taken, or maintained pursuant to Article XXI of the GATT 1994".199
Based on the Panel's understanding of Article 11.1(c) and the relevance of domestic legal status and
WTO notifications for the characterization of measures under that provision, the Panel also concurs
with that panel's treatment of the same considerations.200
7.80. In the light of its conclusion that the Section 232 measures were sought, taken, or maintained
pursuant to a provision of the GATT 1994 other than Article XIX, the Panel finds that the Agreement
on Safeguards does not apply to these measures, as provided for in Article 11.1(c) of that
Agreement. As noted above, the rights under Article 8.2 of the Agreement on Safeguards and,
relatedly, Article XIX:3(a) of the GATT 1994, are unavailable in respect of measures to which the
Agreement on Safeguards does not apply. Accordingly, the Panel finds that Article 8.2 of the
Agreement on Safeguards and Article XIX:3(a) of the GATT 1994 do not apply to Türkiye's additional
duties measure.
7.1.3 Conclusion
7.81. Having found that Article 8.2 of the Agreement on Safeguards and Article XIX:3(a) of the
GATT 1994 do not apply to Türkiye's additional duties measure, the Panel consequently finds that
the application of Articles I and II of the GATT 1994 is not suspended in relation to this measure.
The Panel will accordingly proceed to examine the United States' claims under Articles I and II of
the GATT 1994 in turn.
7.2 United States' claims under the GATT 1994
7.2.1 Whether the Panel should examine the additional duties measure as amended by
Presidential Decision 1130/2019
7.82. Before assessing the United States' claims under the GATT 1994, the Panel must address an
issue raised by the parties' arguments concerning the scope of the measure at issue. In particular,
the Panel must assess whether to examine the WTO consistency of the additional duties measure as
amended by Presidential Decision 1130/2019 (the Second Amendment). 201 As explained in section
2.2 of this Report202, the Second Amendment entered into force on 21 May 2019, nearly four months
after the Panel's establishment. The Second Amendment reduced the rates of duty applied under
the additional duties measure to levels below those in force at the time of the Panel's establishment.
7.2.1.1 Main arguments of the parties
7.2.1.1.1 United States
7.83. The United States does not contest that, following the entry into force of the Second
Amendment on 21 May 2019, the additional duties applicable to certain tariff lines were reduced.
However, the United States maintains that this reduction of the additional duties is "legally
irrelevant" to these proceedings because it occurred well after the establishment of the Panel in this

198 See section 1.3.1 above.
199 Panel Report, US – Steel and Aluminium Products (Turkey), para. 7.111.
200 Panel Report, US – Steel and Aluminium Products (Turkey), para. 7.98, fn 411, and para. 7.111.
201 Second Amendment, (Exhibit TUR-43).
202 See para. 2.8 above.

dispute. In the United States' view, the Panel's terms of reference are to examine the matter in the
United States' panel request, and not a different matter existing on some other date.203
7.2.1.1.2 Türkiye
7.84. Türkiye argues that the Panel should make findings on the version of the additional duties
measure currently in force, namely, the measure as amended by the Second Amendment. 204 In
Türkiye's view, both the terms of the United States' panel request and the fact that the Second
Amendment did not change the essence of the measure allow the Panel to make findings on this
amended version of the measure.205
7.2.1.2 Analysis by the Panel
7.85. The Panel's terms of reference are defined by Article 7 of the DSU. According to that provision,
the Panel's task is to examine the matter referred to the DSB by the United States in document
WT/DS561/2 (that is, the United States' panel request), and to make such findings as will assist the
DSB in making the recommendations or in giving the rulings provided for in the relevant agreements.
7.86. In this respect, the United States' panel request explicitly identifies the Implementation
Decree and the First Amendment as the legal instruments through which Türkiye imposes the
additional duties measure.206 The panel request does not explicitly identify the Second Amendment
as constituting part of the challenged measure. Indeed, this could not be otherwise, as the Second
Amendment came into force nearly four months after the Panel was established.
7.87. The Panel notes that Articles 3 and 6 of the DSU invest a complainant with a considerable
degree of discretion in framing its complaint. For example, Article 3.3 of the DSU suggests that a
Member may initiate panel proceedings when it considers that the benefits accruing to it under any
of the covered agreements are impaired by another Member's measure. Further, Article 3.7
empowers Members to bring actions under the DSU where they consider that doing so would be
fruitful. Article 6 similarly provides that a panel is to be established only where the complainant so
requests, and gives complainants the power to identify the specific measures at issue. The DSU thus
prioritizes the "perception or understanding" of a complainant in framing the scope and content of
the disputed measures.207
7.88. In several past disputes, WTO adjudicators have held that a panel's terms of reference may,
in certain circumstan ces, encompass amendments to measures identified in the panel request
enacted after its establishment.208 The Panel observes, however, that in the relevant disputes, and
consistent with the principle of complainant control outlined above, those adjudicators only examined
whether an amendment fell within the terms of reference because the complainant in the
proceedings explicitly requested that the relevant amendments be included in the panel's review.
Their examination of whether a particular amendment fell within their terms of reference was thus
motivated by the complainants' choice of what measures (or versions of measures) to challenge.
7.89. The Panel thus considers that, in the light of the emphasis placed by the DSU on the
complainant's choices in framing th e scope of its complaint, the question whether a particular
measure or amendment falls within a panel's terms of reference is only relevant to the extent that
the complainant seeks findings on that measure or amendment. The Panel does not consider there
to be any basis for making either jurisdictional or substantive findings on a measure or amendment
in the absence of a request from the complainant to do so. 209 In the circumstance s of these
proceedings, where the complainant has explicitly limited its claims to the additional duties measure
as applied through the Implementation Notice and the First Amendment, the question whether the

203 United States' response to Panel question No. 5, para. 16; and No. 69, paras. 1 and 3.
204 Türkiye's response to Panel question No. 69.
205 Türkiye's response to Panel question Nos. 5 and 69.
206 United States' panel request, p. 1.
207 Appellate Body Report, US – Upland Cotton, para. 264.
208 See e.g. Appellate Body Reports, Chile – Price Band System, paras. 136-144; EC – Chicken Cuts,
paras. 156-157; US – Zeroing (Japan) (Article 21.5 – Japan), para. 121; and EC – Selected Customs Matters,
Civil Aircraft (2nd complaint) (Article 21.5 – EU), para. 7.524; and US – Tariff Measures (China),
paras. 7.47-7.48.
209 Panel Reports, Russia – Tariff Treatment, para. 7.84; and US – Renewable Energy, para. 7.17.

Second Amendment falls within the Panel's terms of reference has no legal significance because the
Panel has not been asked to make findings on that instrument.
7.90. Accordingly, the Panel will assess the United States' claims under the GATT 1994 with
reference to the additional duties measure as it existed at the time of the Panel's establishment,
that is, as applied through the Impl ementation Notice and the First Amendment. It will not make
findings on the measure as implemented through the Second Amendment. Nevertheless, the Panel
is of the view that it may be necessary to reflect the changes implemented through the Second
Amendment in its recommendations, if any, under Article 19.1 of the DSU.210
7.2.2 United States' claim under Article I:1 of the GATT 1994
7.2.2.1 Main arguments of the parties
7.2.2.1.1 United States
7.91. The United States claims that Türkiye's additional duties measure is inconsistent with
Article I:1 of the GATT 1994 because it fails to extend to certain products of the United States an
advantage granted by Türkiye to like products originating in other countries.211 In the United States'
view, a measure is inconsistent with Article I:1 of the GATT 1994 where the following elements are
present: (a) the challenged measure is covered by Article I:1 of the GATT 1994; (b) the subject
imports are "like products" within the meaning of Article I:1 of the GATT 1994; (c) the challenged
measure confers an "advantage, favour, privilege, or immunity" to a product originating in (or
destined for) another country; and (d) such "advantage, favour, privilege, or immunity" is not
extended "immediately" and "unconditionally" to all subject imports.212 The United States maintains
that Türkiye's additional duties measure satisfies all of these elements.213
7.92. The United States first submits that the additional duties measure is "explicitly covered" by
the text of Article I:1. Noting that Article I:1 refers to "customs duties", the United States argues
that these are charges imposed at the border, as are the additional duties imposed by the measure
at issue.214 Further, the United States contends that the terms "tariff", "customs duty", and "import
duty" are used interchangeably in economics and international trade law, and that therefore the
phrase "customs duties and charges of any kind imposed on or in connection with importation" in
Article I:1 of the GATT 1994 would include the duti es imposed by Türkiye's additional duties
measure.215
7.93. The United States next submits that each United States' product subject to Türkiye's
additional duties measure is like a product from other countries not subject to the additional duties
measure within the meaning of Article I:1.216 According to the United States, in circumstances where
the only distinction between two sets of products is the country of origin, it may be presumed that
the two sets are like products. 217 The United States considers that origin is the only criterion used
by Türkiye's measure for imposing additional duties on United States' products covered by 479 tariff
lines, but not products from other countries entered under the same tariff lines. Accordingly, in the
United States' view, the relevant products can be considered like for the purposes of Article I:1 of
the GATT 1994.218
7.94. Turning to the third element, the United States submits that Türkiye's additional duties
measure confers an advantage on like products of other Members because it imposes additional
duties on certain United States products while leaving unchanged the rates of duty applicable to

210 See e.g. Appellate Body Reports, US – Certain EC Products, para. 81; and Dominican Republic –
Import and Sale of Cigarettes, para. 129; and Panel Report, Russia – Tariff Treatment, para. 7.85.
211 United States' first written submission, para. 23.
212 United States' first written submission, para. 24 (referring to Appellate Body Reports, EC – Seal
Products, para. 5.86).
213 United States' first written submission, para. 24.
214 United States' first written submission, para. 25.
215 United States' first written submission, para. 25.
216 United States' first written submission, para. 28.
217 United States' first written submission, paras. 29-30 (referring to Panel Reports, China – Publications
218 United States' first written submission, para. 30.

goods from all other countries, including all other WTO Members.219 In the United States' view, it is
"evident" that, by providing lower duty rates to products originating outside the United States, the
additional duties measure accords an "advantage" to those goods within the meaning of Article I:1.
According to the United States, this is because the subjection of some products to lower duty rates
affects the competitive relationship between products and provides more favourable competitive
opportunities to products benefiting from the lower rates.220
7.95. Finally, the United States argues that the lower duties that Türkiye provides to products from
other countries are not provided to products originating in the United States.221 For the
United States, where, as in this dispute, a measure imposes duties on one WTO Member and leaves
duties on other countries unchanged, that measure clearly doe s not "immediately" accord to that
WTO Member an advantage enjoyed by products originating in other countries.222
7.96. The United States concludes that, because Türkiye's additional duties measure satisfies all of
these elements, it is inconsistent with Article I:1 of the GATT 1994.
7.2.2.1.2 Türkiye
7.97. Türkiye responds to the United States' claim under Article I:1 of the GATT 1994 by arguing
that that provision is "suspended" and therefore not applicable to the additional duties measure,
which is a rebalancing measure under Article 8.2 of the Agreement on Safeguards.223 Türkiye further
observes that, even if the Panel were to disagree with Türkiye abou t the characterization of the
additional duties measure as a "rebalancing measure", the United States as the complainant in this
dispute nevertheless has an obligation to make a prima facie case of a violation of Article I:1 of the
GATT 1994.224
7.2.2.2 Analysis by the Panel
7.98. The question before the Panel is whether, as the United States claims, Türkiye's additional
duties measure is inconsistent with Article I:1 of the GATT 1994. Türkiye has responded to this claim
by submitting that Article I:1 is "suspended" and thus inapplicable in respect of the additional duties
measure. However, Türkiye has not contested that the additional duties measure imposes duties on
United States' products in excess of those applied on like products from other countries. Nor h as it
addressed any of the specific arguments raised by the United States in support of its position that
the additional duties measure is inconsistent with Article I:1.
7.99. The Panel concluded, in the previous Section of this Report, that Article 8.2 of the Agreement
on Safeguards and Article XIX:3(a) of the GATT 1994 do not apply to the additional duties
measure.225 As such, contrary to Türkiye's submission, the application of Article I:1 of the
GATT 1994 is not "suspended" in relation to the additional duties measure within the meaning of
those provisions.
7.100. In the absence of any further argumentation on Türkiye's part concerning the consistency
of the additional duties measure with Article I:1 of the GATT 1994, the Panel considers that the
United States' claim under Article I:1 is uncontested. Nevertheless, in accordance with its duty to
make an objective assessment of the matter before it as laid down in Article 11 of the DSU, the
Panel cannot simply accept the United States' arguments without further analysis. Rather, the Panel
must satisfy itself as to whether the United States has established a prima facie case that the
additional duties measure is inconsistent with Article I:1 of the GATT 1994.226 To that end, the Panel
commences its analysis with the text of the relevant provision.

219 United States' first written submission, para. 31.
220 United States' first written submission, paras. 32-33.
221 United States' first written submission, para. 34.
222 United States' first written submission, para. 35.
223 Türkiye's first written submission, para. 3.4; response to Panel question No. 13.
224 Türkiye's response to Panel question No. 13.
225 See para. 7.81 above.
226 See e.g. Panel Reports, US – Poultry (China), paras. 7.445-7.446; Saudi Arabia – IPRs, para. 7.40;
and China – TRQs, para. 7.21.

7.2.2.2.1 The applicable legal standard
7.101. Article I:1 of the GATT 1994 provides as follows:
With respect to customs duties and charges of any kind imposed on or in connection
with importation or exportation or imposed on the internation al transfer of payments
for imports or exports, and with respect to the method of levying such duties and
charges, and with respect to all rules and formalities in connection with importation and
exportation, and with respect to all matters referred to in paragraphs 2 and 4 of
Article III, any advantage, favour, privilege or immunity granted by any contracting
party to any product originating in or destined for any other country shall be accorded
immediately and unconditionally to the like product originati ng in or destined for the
territories of all other contracting parties.
7.102. Article I:1 prohibits, with respect to measures falling within its scope of application,
discrimination among like products originating in or destined for different countries.227 This obligation
to accord most-favoured-nation (MFN) treatment in respect of customs duties and charges of any
kind imposed on or in connection with importation or exportation has been understood as protecting
expectations of equal competitive opportunities for like imported products from any Member.228
7.103. To establish that a measure is inconsistent with Article I:1, a complainant must demonstrate
that: (a) the measure at issue falls within the scope of Article I:1; (b) the imported products at issue
are like products within the meaning of Article I:1; (c) the measure at issue confers an "advantage,
favour, privilege or immunity" on any product originating in the territory of any country; and (d) the
advantage, favour, privilege or immunity granted is not extended "im mediately" and
"unconditionally" to like products originating in the territory of all Members.229 The Panel will examine
whether the United States has demonstrated that Türkiye's additional duties measure satisfies these
four elements.
7.2.2.2.2 Whether the additiona l duties measure is inconsistent with Article I:1 of the
GATT 1994
7.104. Article I:1 of the GATT 1994 applies inter alia to "customs duties and charges of any kind
imposed on or in connection with importation". The Panel understands "customs duties" to refer to
charges on goods that accrue at the moment and by virtue of importation or exportation.230
7.105. The Panel notes that the Implementation Dec ree is formally titled "Decree on Additional
Duties on the Importation of Certain Products Originated from the United States of America".231 The
Panel also notes that Article 1(1) provides that "[t]he purpose of this Decree is to impose additional
duties on the importation of certain products originated from the United States of America", and
Article 1(2) provides that "[a]dditional duties are collected on the importation of certain products
originated from the [United States] at the rates shown in the table attached to this Decree".232 These
provisions therefore explicitly establish that the additional duties measure imposes duties that accrue
at the moment and by virtue of the importation of goods from the United States into Türkiye.
7.106. Further, Article 3(1) of the Implementation Decree provides that the provisions of Türkiye's
Customs Law No. 4458 and other relevant customs legislation on the methods and procedures
related to customs duties are also applicable for the registration, accrual, collection, return,
follow-up, and warranty pr ocesses of the additional duties imposed within the scope of this
Decree.233 This provision appears to assimilate the duties imposed by the additional duties measure
to other kinds of customs duties imposed or maintained by Türkiye for the purposes of administration
and enforcement.

227 Panel Report, US – Steel and Aluminium Products (Turkey), para. 7.56.
228 Panel Report, US – Steel and Aluminium Products (Turkey), para. 7.56 (referring to Appellate Body
Reports, EC – Seal Products, paras. 5.86-5.87).
229 Appellate Body Reports, EC – Seal Products, para. 5.86.
230 Appellate Body Reports, China – Auto Parts, para. 158.
231 Implementation Decree, (Exhibits USA-1, TUR-41).
232 Implementation Decree, (Exhibits USA-1, TUR-41), Articles 1(1) and 1(2).
233 Implementation Decree, (Exhibits USA-1, TUR-41), Article 3(1).

7.107. The Panel observes that Article 2 of the Implementation Notice provides that "[a]dditional
duties are collected separately from customs duties and other charges of [a] fiscal nature by the
customs authorities and are recorded as revenue to the national budget".234 Türkiye has not argued,
however, and the Panel does not consider that this administrative requirement changes the essential
characterization of the duties as "customs duties". The Panel understands this provision to be
concerned with the sorting and allocation of collected revenues, rather than with defining the event
or condition giving rise to the duties or on which the duties become payable. As noted, this event or
condition is the importation of goods from the United States into Türkiye, thus bringing the additional
duties within the scope of "customs duties" in the sense of Article I:1 of the GATT 1994.
7.108. The Panel therefore considers that the additional duties measure imposes customs duties,
and accordingly falls within the scope of Article I:1 of the GATT 1994.
7.109. With respect to whether the products at issue are like within the meaning of Article I:1, the
Panel notes that past WTO adjudicators have consistently held that when a measure makes a
distinction between products based exclusively on their origin, the likeness of such products can be
presumed.235 Türkiye's additional duties measure applies additional tariff rates exclusively on
products "originated from the United States".236 It thus makes a distinction between products solely
on the basis of origin, i.e. whether they originate in the United States or in any other country. 237
The Panel therefore finds that the United States' products subject to the additional duties measure
can be presumed to be like the equivalent products from other countries that are not subject to the
additional duties measure.
7.110. The additional duties measure applies "additional tariff rates" on certain products originating
in the United States, but does not i ncrease the tariffs applicable to like products originating in any
other country. In effect, this means that imports from other countries are subject to lower tariff
rates than like products imported from the United States. In the Panel's view, lower tarif f rates
constitute an "advantage" within the meaning of Article I:1 of the GATT 1994 because they create
more favourable import opportunities and thus affect the competitive relationship between those
products benefiting from lower tariff rates and those subject to higher tariff rates.
7.111. Finally, because the additional duties measure applies additional tariff rates only on products
originating in the United States, it does not accord the advantage of lower tariff rates "immediately
and unconditionally" to those products.
7.112. Accordingly, the Panel finds that the United States has demonstrated that the additional
duties measure is inconsistent with Article I:1 of the GATT 1994 because, with respect to customs
duties imposed on or in connection with importation , it fails to accord an advantage granted to
products originating in other countries immediately and unconditionally to products originating in
the United States.
7.2.2.3 Conclusion
7.113. For the reasons outlined above, the Panel finds that Türkiye's additional duties measu re is
inconsistent with Article I:1 of the GATT 1994 because, with respect to customs duties imposed on
or in connection with importation, it fails to accord an advantage granted to products originating in
other countries immediately and unconditionally to products originating in the United States.

234 Implementation Decree, (Exhibits USA-1, TUR-41), Article 2(1).
235 Appellate Body Report, Argentina – Financial Services, para. 6.36. See also Panel Reports,
Colombia – Ports of Entry, paras. 7.355-7.356; and US – Poultry (China), paras. 7.424-7.432.
236 Implementation Decree, (Exhibits USA-1, TUR-41), Article 1. The Panel recalls that, through the
Second Amendment, Türkiye reduced the additional duties to the rates in force prior to the enactment of the
First Amendment on 15 August 2018. Despite this reduction in duties, Türkiye continues to impose tariffs on
products imported from the United States falling under 479 tariff lines at a higher level than the applied import
duty rates for like products imported from other countries.
237 The table of relevant duty rates in Annex E-1 shows the MFN rates applied to all imports of the
relevant products into Türkiye and the additional duties that apply only to the like products originating in the
United States.

7.2.3 United States' claim under Articles II:1(a) and II:1(b) of the GATT 1994
7.2.3.1 Main arguments of the parties
7.2.3.1.1 United States
7.114. The United States claims that Türkiye's additional duties measure imposes duties on
products o riginating in the United States in excess of Türkiye's bound rate s and provides less
favourable treatment to such products, and is therefore inconsistent with Articles II:1(a) and II:1(b)
of the GATT 1994.238
7.115. According to the United States, if a measure res ults in the imposition of duties that are in
excess of the duties provided for in a Member's bound Schedule, the measure breaches obligations
under Article II:1(a) and (b) of the GATT 1994.239 The United States also submits that a measure
that is inconsistent with Article II:1(b) will necessarily be inconsistent with Article II:1(a) as well,
and accordingly addresses the former provision first.240
7.116. The United States begins by noting that Article II:1(b) covers both ordinary customs duties
and other duties or charges. 241 In the United States' view, it is "legally immaterial" whether the
additional duties constitute ordinary customs duties or other duties or charges because, under either
characterization, the duties exceed the rates set out in Türkiye's bound Schedule.242 Nevertheless,
arguing that ordinary customs duties typically relate to either the value or the volume of imported
goods, whereas "other duties and charges" form a residual category that includes any fi nancial
responsibilities resulting from the importation of goods that do not qualify as ordinary customs
duties, the United States submits that the additional duties measure appears to impose ordinary
customs duties.243 The United States argues that, for 210 of the 479 tariff lines covered by Türkiye's
additional duties measure, Türkiye applies tariffs on United States-origin products that are greater
than the rates of duty set out in Türkiye's bound Schedule.244 In the alternative, the United States
submits that if the additional duties are characterized as "other duties or charges" rather than
ordinary customs duties, they are nevertheless inconsistent with Article II:1(b) because they are
not reflected in Türkiye's bound Schedule.245
7.117. Turning to Article II:1(a) of the GATT 1994, the United States argues that "Article II:1(b)
proscribes the type of measures that are equally inconsistent with Article II:1(a)", and therefore
submits that, having established the incon sistency of the additional duties measure with
Article II:1(b), it has also demonstrated that the measure is inconsistent with Article II:1(a).246 The
United States thus argues that, by imposing duties in excess of its bound rates on products
originating in the United States, Türkiye has correspondingly accorded less favourable treatment to
these products than that provided in its bound Schedule and breached Article II:1(a) as well.247
7.2.3.1.2 Türkiye
7.118. Türkiye responds to the United States' claims under Article II of the GATT 1994 by arguing
that that provision is suspended and therefore not applicable to the additional duties measure, which
is a rebalancing measure under Article 8.2 of the Agreement on Safeguards.248 Nevertheless, Türkiye
submits that, if the Panel were to examine the United States' claims under Article II of the
GATT 1994, Article II:1(b) is the more specific provision, and Article II:1(a) the more general one.

238 United States' first written submission, para. 39.
239 United States' first written submission, para. 42.
240 United States' first written submission, para. 43.
241 United States' first written submission, para. 46.
242 United States' first written submission, para. 47.
243 United States' first written submission, para. 48 (referring to Panel Report, Dominican Republic –
Safeguard Measures, paras. 7.79-7.85).
244 United States' opening statement at the second meeting of the Panel, para. 16.
245 United States' first written submission, para. 50.
246 United States' first written submission, para. 53 (referring Appellate Body Report, Argentina –
Textiles and Apparel, para. 47).
247 United States' first written submission, para. 54.
248 Türkiye's first written submission, para. 3.4.

Therefore, in its view, if Article II:1(b) has been violated, this would also mean that the more general
provision under Article II:1(a) has been violated.249
7.2.3.2 Analysis by the Panel
7.119. The question before the Panel is whether, as the United States claims, Türkiye's additional
duties measure is inconsistent with Articles II:1(a) and II:1(b) of the GATT 1994. The Panel notes
that Türkiye has responded to the United States' claim by arguing that Article II of the GATT 1994
is suspended in respect of the additional duties measure, and therefore inapplicable to it. With two
exceptions dealt with below, Türkiye has not contested that the additional duties measure does in
fact impose duties on products originating in the United States in excess of the rates bound in its
bound Schedule. In fact, Türkiye characterizes the United States' description of the measure and its
relationship with Türkiye's bound rates as "broadly accurate". 250 Additionally, Türkiye agrees with
the United States that a measure that is inconsistent with Article II:1(b) will necessarily be
inconsistent with Article II:1(a) as well.
7.120. The Panel has already concluded that Article 8.2 of the Agreement on Safeguards and
Article XIX:3(a) of the GATT 1994 do not apply to Türkiye's additional duties measure.251 The Panel
further found that, consequently, the application of Articles I and II of the GATT 1994 is not
suspended in relation to the additional duties measure. As such, the Panel has already addresse d
and rejected Türkiye's argument that the additional duties measure is not inconsistent with Article II
of the GATT 1994 because the application of that provision is suspended.
7.121. The Panel considers that the United States' claim s under Articles II:1(a) II:1 (b) of the
GATT 1994 are largely uncontested. Nevertheless, in accordance with its duty to make an objective
assessment of the matter before it as laid down in Article 11 of the DSU, the Panel cannot simply
accept the United States' arguments without further analysis. Rather, as noted above252, the Panel
must satisfy itself as to whether the United States has established a prima facie case that the
additional duties measure is inconsistent with those provisions of the GATT 1994.253 The Panel must
also address Türkiye's arguments concerning certain tariff lines affected by the additional duties
measure. To that end, the Panel commences its analysis with the text of the relevant provisions.
7.2.3.2.1 The applicable legal standard
7.122. Articles II:1(a) and II:1(b) of the GATT 1994 provide as follows:
(a) Each contracting party shall accord to the commerce of the other contracting parties
treatment no less favourable than that provided for in the appropriate Part of the
appropriate schedule annexed to this Agreement.
(b) The products described in Part I of the schedule relating to any contracting party,
which are the products of territories of other contracting parties, shall, on their
importation into the territory to which the schedule relates, and subject to the terms,
conditions or qualifications set forth in that schedule, be exempt from ordinary customs
duties in excess of those set forth and provided therein. Such products shall also be
exempt from all other duties or charges of an y kind imposed on or in connection with
the importation in excess of those imposed on the date of this Agreement or those
directly and mandatorily required to be imposed thereafter by legislation in force in the
importing territory on that date.
7.123. Additionally, the Understanding on the Interpretation of Article II:1(b) of the GATT 1994
provides in relevant part:
Members hereby agree as follows:

249 Türkiye's response to Panel question No. 14.
250 Türkiye's first written submission, para. 2.22.
251 See para. 7.81 above.
252 See para. 7.100 above.
253 See e.g. Panel Reports, US – Poultry (China), paras. 7.445-7.446; Saudi Arabia – IPRs, para. 7.40;
and China – TRQs, para. 7.21.

1. In order to ensure transparency of the legal rights and obligations deriving from
paragraph 1(b) of Article II, the nature and level of any "other duties or charges" levied
on bound tariff items, as referred to in that provision, shall be recorded in the schedules
of concessions annexed to GATT 1994 against the tariff item to which they apply. It is
understood that such recording does not change the legal character of "other duties or
charges".
7.124. Article II:1(a) of the GATT 1994 prohibits Members from subjecting imports to treatment
less favourable than that provided for in their bound Schedules.254 The first sentence o f
Article II:1(b) of the GATT 1994 prohibits the imposition of ordinary customs duties in excess of the
rates set forth in a Member's bound Schedule.255 In assessing whether a measure is inconsistent
with this sentence, a panel must ascertain the treatment accorded to the products at issue under
the bound Schedule of the relevant Member, the treatment accorded to the products at issue under
the measures a t issue, and whether the measures at issue result in the imposition of duties and
conditions on the products at issue in excess of those provided for in the relevant bound Schedule.256
The second sentence of Article II:1(b) prohibits the imposition of other duties or charges of any kind
on or in connection with importation in excess of those imposed on the date of entry into force of
the GATT 1994 (or those directly and mandatorily required to be imposed thereafter by legislation
in force on that date).257 According to the Understanding on the Interpretation of Article II:1(b), the
nature and level of any such "other duties or charges" must be recorded in a Member's bound
schedule.258
7.125. A measure that is inconsistent with Article II:1(b) of the GATT 1994 will ne cessarily be
inconsistent with Article II:1(a) as well. This is because the imposition by a Member of duties in
excess of the relevant bound rates constitutes "less favourable treatment" within the meaning of
Article II:1(a).259 Accordingly, the Panel will begin its analysis by considering the United States' claim
under Article II:1(b) of the GATT 1994.
7.2.3.2.2 Whether Türkiye's additional duties measure is inconsistent with Article II:1(b)
of the GATT 1994
7.126. Article II:1(b) of the GATT 1994 prohibits the imposition of both ordinary customs duties in
excess of those provided in a Member's bound Schedule and "other duties or charges" not recorded
in a Member's bound schedule. The Panel therefore begins its analysis by considering whether the
duties imposed by Türkiye's additional duties measure fall within the scope of either of these
categories.
7.127. The United States submits that the duties imposed by the additional duties measure appear
"on [their] face" to be ordinary customs duties.260 The Panel notes that, although the term ordinary
customs duties is not defined in Article II of the GATT 1994, it has been consistently found in past
disputes that a duty is likely to constitute an ordinary customs duty where it arises or accrues
"because of the importation of the product at the very moment it enters the territory of another
Member"261, such that it can be characterized as a duty "on" importation.262
7.128. The Panel has already found that Türkiye's additional duties measure imposes duties that
accrue at the moment and by virtue of the importation of goods from the United States into

254 See Appellate Body Reports, Argentina – Textiles and Apparel, para. 45; Colombia – Textiles,
para. 5.34.
255 See Appellate Body Reports, India – Additional Import Duties, para. 150; Colombia – Textiles,
para. 5.35.
256 Panel Reports, EC – Chicken Cuts, para. 7.65.
257 See Appellate Body Report, India – Additional Import Duties, para. 151; Panel Report,
258 See Panel Report, Dominican Republic – Safeguard Measures, para. 7.78. See also Panel Report,
Dominican Republic – Import and Sale of Cigarettes, paras. 7.84-7.90.
259 Appellate Body Report, Argentina – Textiles and Apparel, para. 47.
260 United States' first written submission, para. 48.
261 Panel Reports, China – Auto Parts, para. 7.184.
262 Appellate Body Reports, China – Auto Parts, para. 158.

Türkiye.263 Accordingly, the Panel considers that these duties can properly be characterized as
ordinary customs duties within the meaning of Article II:1(b) of the GATT 1994.264
7.129. The Panel now turns to assess whether the duties imposed by the additional duties measure
are "in excess" of those set forth in Türkiye's bound Schedule. The United States has submitted
evidence comparing Türkiye's bound rates and its applied rates (comprising both the MFN rates and
the applicable additional duties265) in respect of the 479 tariff lines covered by the additional duties
measure.266 The United States contends that this evidence shows that Türkiye imposes ordinary
customs duties in excess of its bound rates in respect of 210267 of these tariff lines.
7.130. The arguments and evidence submitted by the United States were uncontested by Türkiye
with regard to 199 of the tariff lines affected by the additional duties measure.268 Having examined
the arguments and evidence submitted, the Panel finds that the United States has demonstrated
that Türkiye's additional duties measure results in the imposition of ordinary customs duties on
imports from the United States under those 199 tariff lines in excess of the rates set forth in Türkiye's
bound Schedule.269
7.131. Türkiye did, however, contest the arguments and evidence submitted by the United States
with regard to two sets of tariff lines: first, tariff lines 210690980012, 210690980013,
210690980014, 210690980015, and 210690980019; and second, tariff lines 870333909011,
870333909019, 870340100000, 870340900000, 870350000000, and 870360100000. The Panel will
examine the arguments and evidence relating to those two sets of tariff lines in the following
Sections.
7.2.3.2.2.1 HS2017 tariff lines 210690980012, 210690980013, 210690980014,
210690980015, and 210690980019
7.132. In commenting on the Panel's draft de scriptive part (which included a draft of the Panel's
table of relevant duty rates setting out the Panel's understanding of the tariff rates and additional
duties applicable to the products covered by the additional duties measure), Türkiye submitted that
the MFN rate for tariff lines 210690980012, 210690980013, 210690980014, 210690980015, and
210690980019 was 9+T1, rather than 58.5% as indicated in Exhibits USA-6, USA-7, and USA-8.270
In response to a question from the Panel, the United States indicated that it did not object to this
change, and explained that, in its understanding, the formula 9+T1 "signifies that Türkiye applies a
9% ad valorem rate plus a specific duty rate determined according to milk fat and milk protein
percentages by weight". The Unit ed States further argued that "[w]hen combined with the 10%
additional duty Türkiye applies to United States-origin products only, Türkiye may still apply duties
in excess of its bound rates" in respect of these tariff lines. However, the United States did not

263 See para. 7.105 above.
264 The precise relationship between the terms "customs duties" in Article I:1 of the GATT 1994 and
"ordinary customs duties" in Article II:1(b) of the GATT 1994 has not been discussed by the parties, and the
Panel does not consider it necessary to address this question to resolve the dispute before it.
265 The Panel recalls that the Implementation Decree states that it operates to "impose additional duties
on the importation of certain products originated from the United States of America". The Panel understands
from this language that the measure requires the application of both Türkiye's MFN rates and the additional
duties to imports from the United States. See Implementation Decree, (Exhibits USA-1, TUR-41), Article 1(1).
266 United States' Table Presenting Tariff Lines and Bound Rates Affected By Türkiye's Measure from
21 June 2018 to 14 August 2018, (Exhibit USA-6); United States' Table Presenting Tariff Lines and Bound
Rates Affected By Türkiye's Measure from 15 August 2018 to 31 December 2018, (Exhibit USA-7); and
United States' Table Presenting Tariff Lines and Bound Rates Affected By Türkiye's Measure beginning on
1 January 2019, (Exhibit USA-8). The Panel observes that these documents concern 477 tariff lines. However,
following a clarification from Türkiye, the United States agreed that the additional duties measure covers 479
tariff lines. See Türkiye's first written submission, para. 2.22 and fn 37 and United States' opening statement
at the second meeting of the Panel, para. 16. A consolidated list of the 479 tariff lines, including the relevant
bound rates, MFN rates, and additional duties, can be found in the Table of relevant duty rates (Annex E-1).
267 United States' opening statement at the second meeting of the Panel, para. 16.
268 United States' Table Presenting Tariff Lines and Bound Rates Affected By Türkiye's Measure from
21 June 2018 to 14 August 2018, (Exhibit USA-6); United States' Table Presenting Tariff Lines and Bound
Rates Affected By Türkiye's Measure from 15 August 2018 to 31 December 2018, (Exhibit USA-7); and
United States' Table Presenting Tariff Lines and Bound Rates Affected By Türkiye's Measure beginning on
1 January 2019, (Exhibit USA-8).
269 Table of relevant duty rates (Annex E-1).
270 Türkiye's comments on the draft descriptive part (17 January 2023).

explain how the MFN rate 9+T1 operates so as to result in the application of ordinary customs duties
in excess of Türkiye's bindings. Türkiye did not respond to the Panel's request for comments on the
United States' comments in this respect.
7.133. The Panel notes that neither party has suggested that there exists any kind of cap or ceiling
that would prevent the formula 9+T1 from producing a duty rate that, when combined with the
applicable additional duty, would exceed Türkiye's bound rates. Therefore, the Panel considers that,
to the extent that the additional duties measure results, in respect of tariff lines 210690980012,
210690980013, 210690980014, 210690980015, and 210690980019, in the imposition of ordinary
customs duties that exceed the rates in Türkiye's bound Schedule, it is inconsistent with
Article II:1(b) of the GATT 1994.
7.2.3.2.2.2 HS2017 tariff lines 870333909011, 870333909019 , 870340100000,
870340900000, 870350000000, and 870360100000
7.134. The parties disagree about whether tariff lines 870333909011, 870333909019 ,
870340100000, 870340900000, 870350000000, and 870360100000 are bound in Türkiye's bound
Schedule. The Panel has already provided a detailed discussion on the parties' positions on this issue
in Section 6 above.271 In this section, for each of the relevant tariff lines, the Panel will provide its
assessment of (i) whether these tariff lines are bound in Türkiye's bound Schedule and, if so, at
what rate; and (ii) whether the applied rates for the tariff lines concerned exceed the bound rates.
HS2017 tariff lines 870333909011 and 870333909019
7.135. The Panel notes that tariff lines 870333909011 and 870333909019 from Türkiye's applied
tariff schedule fall under the HS2017 subheading 870333. This subheading concerns "Motor cars and
other motor vehicles principally designed for the transport of persons (other than those of
heading 87.02), including station wagons and racing cars / - other vehicles, with only compression-
ignition internal combustion piston engine (diesel or semi -diesel): / -- Of a cylinder capacity
exceeding 2,500 cc".272 In Türkiye's applied tariff schedule, t his subheading is subdivided into two
categories – new and used – which are themselves further subdivided into motor cars, motor
caravans, and "other". For present purposes, the Panel understands that what matters is that tariff
line 8703339090 covers used vehicles other than motor cars (which instead fall under tariff line
8703339010).
7.136. Based on the information available, the Panel notes that the scope of tariff line 8703339090
is identical in Türkiye's bound Schedule and its applied tariff schedule with respect to the type of
vehicle that has "only compression -ignition internal combustion piston engine (diesel or semi -
diesel)". It is therefore possible to identify the bound rate for this kind of vehicles by looking at the
relevant entry in Türkiye's bound Schedule. Doing so reveals that the bound rate applicable to these
products is 19%.
7.137. The 12 -digit tariff lines 870333909011 and 870333909019 in Türkiye's applied tariff
schedule are break -out lines from tariff line 8703339090. That is, they provide further specificity
and subdivisions on products falling under the 10 -digit tariff line 8703339090. While neither of the
12-digit tariff lines appears as such in Türkiye's bound Sched ule, nevertheless, because they both
fall under the 10-digit tariff line 8703339090, and because that tariff line is bound at 19%, it follows
that both 12-digit tariff lines are also subject to a maximum bound rate of 19%.
7.138. Türkiye's additional duties measure applies a duty of 120% on products falling under these
two tariff lines. Accordingly, in respect of these two tariff lines, the Panel finds that Türkiye applies
duties in excess of those set forth in Türkiye's bound Schedule.

271 See Section 6.2.1 above.
272 See Notifications of 2016 and 2021 applied tariff rates by Türkiye to the WTO IDB pursuant to the
"Decision on the modalities and operation of the IDB" of 26 May 2019 (G/MA/367). Unless otherwise indicated,
all product descriptions referred to in this section in respect of Türkiye's applied tariffs are taken from Türkiye's
notifications as collected in the IDB.

HS2017 tariff lines 870340100000 and 870340900000
7.139. The Panel begins by noting that, because the last four digits of these tariff lines are zero,
following the HS practice and conventions, they can also be expressed as 87034010 and 87034090.
These tariff lines fall under the broader 6-digit subheading 870340. This subheading was introduced
for the first time in HS2017 by combining parts of five separate subheadings from the HS2002
classification: 870321, 870322, 870323, 870324, and 870390.273 The WCO correlation tables explain
that "[t]he structure of heading 87.03 has been redrafted and renumbered to provide separately for
hybrid electric vehicles, plug-in hybrid vehicles and for all -electric motor vehicles, respectively".274
In particular, subheading 870340 was meant to regroup the cl assification of "other vehicles, with
both spark-ignition internal combustion reciprocating piston engine and electric motor as motors for
propulsion, other than those capable of being charged by plugging to an external source of electric
power".275
7.140. In Türkiye's bound Schedule, subheadings 870321, 870322, 870323, and 870324 cover a
range of "m otor cars and other motor vehicles principally designed for the transport of persons
(other than those of heading 87.02), including station wagons and racing cars / other vehicles, with
spark-ignition internal combustion reciprocating piston engine", and are subdivided according to the
cylinder capacity of the engine. Additionally, subheading 870390 covers "other vehicles" principally
designed for the transport of persons that were not covered by 870310 (e.g. vehicles specially
designed for travelling on the snow; golf cars and similar vehicles), 870320 (other vehicles, with
spark-ignition internal combustion reciprocating piston engine), or 870330 (other vehicles, with only
compression-ignition internal combustion piston engine (diesel or semi -diesel)). This includes, for
example, vehicles with only electric motors. These vehicles are further subdivided according to
(a) whether they are "motor cars" or "other"; and (b) whether they are new or used. Based on the
information in the CTS, the Panel notes that "motor cars" falling under tariff lines 870321, 870322,
870323, and 870324 are unbound, but vehicles other than motor cars, including motor caravans,
are bound at 1 9%. Additionally, all vehicles with "electric motors" falling under tariff line
8703901000 are bound at 20%, where there is no further differentiation of the types of vehicles.
7.141. In Türkiye's applied tariff schedule, subheading 870340 is itself divided into two broad tariff
lines: 87034010 for new vehicles, and 87034090 for used vehicles. These two tariff lines are further
subdivided into three tariff lines covering: (a) motor cars; (b) motor caravans; and (c) "other". The
result of this reclassification and regrouping of the products is that new vehicles with both spark -
ignition internal combustion reciprocating piston engine and electric motor as motors for propulsion,
other than those capable of being charged by plugging to an external source of electric p ower
(whether motor cars, motor vans, or "other") formerly covered by HS2002 subheadings 870321,
870322, 870323, 870324, and 870390 in HS2002, fall under tariff line 87034010 in Türkiye's applied
tariff schedule. Additionally, used vehicles with both spark-ignition internal combustion reciprocating
piston engine and electric motor as motors for propulsion other than those capable of being charged
by plugging to an external source of electric power that cannot be plugged (whether motor cars,
motor vans, or " other") formerly covered by HS2002 subheadings 870321, 870322, 870323,
870324, and 870390, fall instead under tariff line 87034090 in in Türkiye's applied tariff schedule.
7.142. This means that tariff lines 87034010 and 87034090 in Türkiye's applied tariff sche dule
cover a range of products that, in Türkiye's bound Schedule, are either unbound or subject to a
bound rate of either 19% or 20%. As the additional duties measure applies a duty of 120% to
products falling under these tariff lines, the Panel concludes that Türkiye's additional duties measure
is inconsistent with Article II:1(b) of the GATT 1994, to the extent that it applies to products subject
in Türkiye's bound Schedule to a bound rate of 19% or 20%.
HS2017 tariff line 870350000000
7.143. The Panel begins by noting that, as explained above, because the last six digits of this tariff
line are zero, it can be expressed as subheading 870350. This subheading was created for the first
time in HS2017 by combining four separate subheadings from the HS2002 classifica tion: 870331,

273 WTO-WCO HS Tracker Subheading Visualizer – Consolidated, (Exhibit USA-58).
274 WCO to HS2017 (Table 1), (Exhibit USA-59), p. 22.
275 International Convention on the Harmonized Commodity Description and Coding System, Changes in
the Harmonized System to be Introduced on 1 January 2017 (5 April 2016), G/MA/W/121, p. 57. (emphasis
added)

870332, 870333, and 870390.276 The WCO correlation tables explain that "[t]he structure of heading
87.03 has been redrafted and renumbered to provide separately for hybrid electric vehicles, plug-in
hybrid vehicles and for all-electric motor vehicles, respectively".277 In particular, HS2017 subheading
870350 was meant to regroup the classification of " other vehicles", with both compression-ignition
internal combustion piston engine (diesel or semi-diesel) and electric motor as motors for propulsion,
other than those capable of being charged by plugging to an external source of electric power.278
7.144. In HS2002, subheadings 870331, 870332, and 870333, cover a range of "m otor cars and
other motor vehicles principally designed for the transport of persons (other than those of
heading 87.02), including station wagons and racing cars / other vehicles, with compression-ignition
internal combustion piston engine (diesel or semi -diesel)", and are subdivided according to the
cylinder capacity of the engine. In Türkiye's bound Schedule, these vehicles are further subdivided
according to (a) whether they are motor cars or "other"; and (b) whether they are new or used.
Additionally, as noted above, HS2002 tariff line 87039010 covers vehicles with electric mot ors.
Based on the information in the CTS, the Panel notes that i n Türkiye's bound Schedule, new motor
cars falling under HS2002 subheadings 870331, 870332, and 870333 are unbound, but new vehicles
other than motor cars, including motor caravans, are bound at 19%. Additionally, vehicles with
electric motors falling under tariff line 87039010 are bound at 20%.
7.145. In Türkiye's applied tariff schedule, subheading 870350 is subdivided into three further tariff
lines, covering (a) motor cars; (b) motor caravans, and (c) "other". The result of this reclassification
and regrouping of the products is that all vehicles with both compression-ignition internal combustion
piston engine (diesel or semi -diesel) and electric motor as motors for propulsion other than those
capable of being charged by plugging to an external source of electric power formerly covered by
HS2002 subheadings 870331, 870332, 870333, and 870390, whether new or used, and whether
motor cars, motor caravans, or "other", now fall under subheading 870350.
7.146. This means that subheading 870350 covers a range of products that, in Türkiye's bound
Schedule, are either unbound (motor cars) or subject to a bound rate of either 19% or 20%. As the
additional duties measure applies a duty of 120% to products falling unde r these tariff lines, the
Panel concludes that Türkiye's additional duties measure is inconsistent with Article II:1(b) of the
GATT 1994 to the extent that it applies to products subject in Türkiye's bound Schedule to a bound
rate of 19% or 20%.
HS2017 tariff line 870360100000
7.147. The Panel begins by recalling that, as noted above, because the last four digits of this tariff
line are zero, as explained above, it can also be expressed as 87036010. This tariff line falls under
the broader 6-digit HS2017 subheading 870360. This subheading was created for the first time in
HS2017 by combining five separate tariff lines from the HS2002 classification: 870321, 870322,
870323, 870324, and 870390.279 The WCO correlation tables explain that "[t]he structure of heading
87.03 has been redrafted and renumbered to provide separately for hybrid electric vehicles, plug-in
hybrid vehicles and for all-electric motor vehicles, respectively".280 In particular, HS2017 subheading
870360 was meant to regroup the classification of "other vehicles, with both spark-ignition internal
combustion reciprocating piston engine and electric motor as motors for propulsion, capable of being
charged by plugging to an external source of electric power".281
7.148. The Panel observes that HS2017 subheading 870360 was created by combining the same
five tariff lines as were combined to create subheading 870340. 282 The main difference is that,
whereas subheading 870340 covers h ybrid gasoline-electric vehicles not capable of being charged
by plugging to an external source of electric power , subheading 870360 covers vehicles with both
spark-ignition internal combustion reciprocating piston engine and electric motor as motors for

276 WTO-WCO HS Tracker Subheading Visualizer – Consolidated, (Exhibit USA-58).
277 WCO correlation tables HS2012 to HS2017 (Table 1), (Exhibit USA-59), p. 22.
278 International Convention on the Harmonized Commodity Description and Coding System, Changes in
the Harmonized System to be Introduced on 1 January 2017 (5 April 2016), G/MA/W/121, p. 57.
279 WTO-WCO HS Tracker Subheading Visualizer – Consolidated, (Exhibit USA-58).
280 WCO correlation tables HS2012 to HS2017 (Table 1), (Exhibit USA-59), p. 22.
281 International Convention on the Harmonized Commodity Description and Coding System, Changes in
the Harmonized System to be Introduced on 1 January 2017 (5 April 2016), G/MA/W/121, p. 58.
282 See para. 7.139 above.

propulsion capable of being charged by plugging to an external source of electric power .283 Like
HS2017 subheading 870340, HS2017 subheading 870360 is divided into two broad categories in
Türkiye's applied tariff schedule: 87036010 for new vehicles, and 87036090 for used vehicles. These
two tariff lines are further subdivided into three tariff lines covering (a) motor cars; (b) motor
caravans; and (c) "other". The result of this reclassification and regrouping of the products is that
new vehicles with both sp ark-ignition internal combustion reciprocating piston engine and electric
motor as motors for propulsion capable of being charged by plugging to an external source of electric
power (whether motor cars, motor vans, or "other") formerly covered by HS2002 su bheadings
870321, 870322, 870323, 870324, and 870390 now fall under 87036010, while used vehicles with
both spark-ignition internal combustion reciprocating piston engine and electric motor as motors for
propulsion capable of being charged by plugging to an external source of electric power formerly
covered by HS2002 subheadings 870321, 870322, 870323, 870324, and 870390 now fall under
87036090.
7.149. The Panel has previously established that the five tariff lines that were combined into tariff
line 87036010 in Türkiye's applied tariff schedule covered products that were either unbound (new
motor cars), or else subject to a bound rate of 19% or 20%. As the additional duties measure applies
a duty of 120% to products falling under these tariff lines, the Panel conc ludes that Türkiye's
additional duties measure is inconsistent with Article II:1(b) of the GATT 1994 to the extent that it
applies to products subject in Türkiye's bound Schedule to a bound rate of 19% or 20%.
7.2.3.2.2.3 Conclusion
7.150. Based on the foregoing, the Panel f inds that the United States has demonstrated that
Türkiye's additional duties measure is inconsistent with Article II:1(b) of the GATT 1994 because it
results in the imposition of ordinary customs duties on imports from the United States under 201
tariff lines in excess of the rates set forth in Türkiye's bound Schedule. In addition, the Panel finds
that the United States has demonstrated that Türkiye's additional duties measure is inconsistent
with Article II:1(b) of the GATT 1994 to the extent that it results in the imposition of ordinary
customs duties on imports from the United States under a further nine tariff lines (210690980012,
210690980013, 210690980014, 210690980015, 210690980019, 870340100000, 870340900000,
870350000000, and 870360100000) in excess of the rates set forth in Türkiye's bound Schedule.
7.2.3.2.3 Whether the additional duties measure is inconsistent with Article II:1(a) of the
GATT 1994
7.151. The Panel has explained above that where a measure is inconsistent with Article II:1(b) of
the GATT 1994, it is necessarily inconsistent with Article II:1(a) as well.284 This is so because, where
a Member imposes duties on imports in excess of those set forth in its schedule, it accords to those
imports treatment less favourable than that provided for in its schedule.285
7.152. Having found that the United States has demonstrated that Türkiye's additiona l duties
measure is inconsistent with Article II:1(b) of the GATT 1994 because it imposes ordinary customs
duties on United States-origin imports in excess of those set forth in Türkiye's bound Schedule, the
Panel also finds that the United States has demonstrated that the additional duties measure is
inconsistent with Article II:1(a) of the GATT 1994 because it accords to those imports treatment less
favourable than that provided for in Türkiye's bound Schedule.
7.2.3.3 Conclusion
7.153. For the reasons outlined above, the Panel finds that the additional duties measure is
inconsistent with Articles II:1(a) and II:1(b) of the GATT 1994.

283 International Convention on the Harmonized Commodity Description and Coding System, Changes in
the Harmonized System to be Introduced on 1 January 2017 (5 April 2016), G/MA/W/121, p. 58.
284 See para. 7.125 above.
285 Appellate Body Report, Argentina – Textiles and Apparel, para. 47.

8 CONCLUSIONS AND RECOMMENDATION
8.1. For the reasons set forth in this Report, the Panel concludes:
a. Article 8.2 of the Agreement on Safeguards and Article XIX:3(a) of the GATT 1994 do not
apply to Türkiye's additional duties measure. Accordingly, the application of Articles I and
II of the GATT 1994 is not suspended in relation to that measure.
b. Regarding the United States' claim under Article I:1 of the GATT 1994:
i. Türkiye's additional duties measure is inconsistent with Article I:1 of the GATT 1994
because, with respect to customs duties imposed on or in connection with importation,
it fails to accord an advantage granted to products originating in other countries
immediately and unconditionally to products originating in the United States.
c. Regarding the United States' claims under Articles II:1(a) and II:1(b) of the GATT 1994:
i. Türkiye's additional duties measure is inconsistent with Article II:1(b) of the
GATT 1994 because it results in the imposition of ordinary customs duties on imports
from the United States under 201 tariff lines in excess of the rates set forth in Türkiye's
bound Schedule.
ii. In addition, the additional duties measure is inconsistent with Article II:1(b) of the
GATT 1994 to the extent that it results in the imposition of ordinary customs duties on
imports from the United States under a further nine tariff lines ( 210690980012,
210690980013, 210690980014, 210690980015, 210690980019 , 870340100000,
870340900000, 870350000000, and 870360100000) in excess of the rates set forth
in Türkiye's bound Schedule; and
iii. Türkiye's additional duties measure is inconsistent with Article II:1(a) of the
GATT 1994 because it imposes ordinary customs duties on United States-origin
imports in excess of those set forth in Türkiye's bound Schedule, thus according to
those imports treatment less favourable than that provided for in Türkiye's bound
Schedule.
8.2. Under Article 3.8 of the DSU, in cases where there is an infringement of the obligations
assumed under a covered agreement, the action is considere d prima facie to constitute a case of
nullification or impairment. The Panel concludes that, to the extent that Türkiye's additional duties
measure is inconsistent with certain provisions of the GATT 1994, it has nullified or impaired benefits
accruing to the United States under that Agreement.
8.3. Pursuant to Article 19.1 of the DSU, the Panel recommends that Türkiye bring its
WTO-inconsistent measure into conformity with its obligations under the GATT 1994, to the extent
that it has not already done so.