EUROPEAN COMMUNITIES – CUSTOMS CLASSIFICATION OF FROZEN BONELESS CHICKEN CUTS
Document: ARB-2005-4/21 Arbitration under Article 21.3(c) of the Understanding on Rules and Procedures Governing the Settlement of Disputes
Date: 20 February 2006
Document codes: WT/DS269/13; WT/DS286/15
Complainant: Thailand
Respondent: EU
Third parties: Brazil, China, U.S.
Dispute stage: Appellate Body
Agreements cited: Art. II, XXII  GATT 1994

EUROPEAN COMMUNITIES – CUSTOMS CLASSIFICATION
OF FROZEN BONELESS CHICKEN CUTS

ARB-2005-4/21

Arbitration
under Article 21.3(c) of the
Understanding on Rules and Procedures
Governing the Settlement of Disputes

Award of the Arbitrator
James Bacchus

AWARD OF THE ARBITRATOR

Parties:

Brazil
European Communities
Thailand

 ARB-2005-4/21

 Arbitrator:

 James Bacchus

I. Introduction
1. On 27 September 2005, the Dispute Settlement Body (the "DSB") adopted the Appellate
Body Report
1 and the Panel Reports 2, as modified by the Appellate Body Report, in .3 At the meeting of the DSB
held on 18 October 2005, the European Communiti es stated that it intended to comply with the
recommendations and rulings of the DSB in this dispute, and that it would need a reasonable period of
time in which to do so.4
2. On 22 November 2005, Brazil informed the DS B that consultations with the European
Communities had not resulted in an agreement on th e reasonable period of time for implementation.
Brazil therefore requested that such period be dete rmined through binding arbitration, pursuant to
Article 21.3(c) of the Understanding on Rules and Procedures Governing the Settlement of Disputes
(the "DSU").5 Thailand similarly informed the DSB, on 9 December 2005, that it had been unable to

1Appellate Body Report, ,
2Panel Reports, , This cas e involved two complaining parties (Brazil and
Thailand) and one responding party (the European Communities). Before the Panel, the European Communities
requested, pursuant to Article 9.2 of the DSU, that the Panel issue two separate reports. These two reports had
the same descriptive part and findings; the only "mat erial difference" between these separate reports was the
cover page and the conclusions. (Appellate Body Report, footnote 1 to para. 1 (quoting Panel Reports,
para. 6.21)) The Appellate Body issued one Report addressing the appeals of Brazil, the European
Communities, and Thailand from both Panel Reports.
3WT/DS269/10, WT/DS286/12.
4WT/DSB/M/199, para. 30.
5WT/DS269/11.

reach agreement with the European Communities on the reasonable period of time for
implementation, and requested arbitration pursuant to Article 21.3(c) of the DSU.
6
3. By joint letter of 9 December 2005, Brazil a nd the European Communities requested me to
act as Arbitrator, pursuant to Article 21.3(c) of th e DSU, to determine the reasonable period of time
for implementation of the recommendations and rulings of the DSB in this dispute. 7 Thailand and the
European Communities also requested, by joint letter of 13 December 2005, that I serve as
Arbitrator.
8 As the 90-day period following adoption of th e Panel and Appellate Body Reports was to
expire on 26 December 2005, the parties, in their re spective letters, "confirm[ed] that the award of the
arbitrator within the time period to be agreed shall be deemed to be the award of the arbitrator for the
purpose of Article 21.3(c) of the DSU." 9 I accepted the appointments on 14 December 2005 and
proposed to conduct both proceedings simultaneously, undertaking to issue the Award no later than
20 February 2006.10 No party objected to the proposed date for circulation of the Award.
4. The European Communities filed its written submission on 6 January 2006. Brazil and
Thailand each filed its written submission on 13 Ja nuary 2006. An oral hearing was held on
26 January 2006.
II. Arguments of the Parties
A. European Communities
5. The European Communities requests that I dete rmine the "reasonable period of time" for
implementation of the recommendations and rulings of the DSB in this dispute to be 26 months from
the date of adoption by the DSB of the Panel and Appellate Body Reports, until 27 November 2007.
6. The European Communities identifies two measu res challenged in this dispute and found by
the Panel and the Appellate Body to be inconsis tent with Articles II:1(a) and II:1(b) of the General
Agreement on Tariffs and Trade 1994 (the "GATT 1994"): Regulation 1223/2002 of the European
Commission (the "Commission") and Commission Decision 2003/97/EC. Because the "effects" of

6WT/DS286/13.
7WT/DS269/12.
8WT/DS286/14.
9Letter from Brazil and the European Communities to the Appellate Body Secretariat, dated
9 December 2005, p. 2; letter from Thailand and the Eu ropean Communities to the Appellate Body Secretariat,
dated 13 December 2005, p. 1.
10WT/DS269/12; WT/DS286/14; letter from the Arb itrator to Brazil, the European Communities, and
Thailand, dated 14 December 2005, p. 1.

the DSB's recommendations and rulings "go beyond" these measures 11, however, the European
Communities asserts that it must also "repeal[]" or "effectively update[]" 12 other Community
measures, namely: Additional Note 7 to headi ng 02.10 of the European Communities' Combined
Nomenclature; the Dinter13 and Gausepohl14 judgments of the European Court of Justice (the "ECJ");
as well as certain Explanatory Notes of the Combined Nomenclature.
7. The European Communities proposes to implem ent the DSB's recommendations and rulings
in this dispute by the following steps: (1) seek ing a decision from the World Customs Organization
(the "WCO") "confirming the interpretation of Ch apter 02.10 of the [Harmonized System] provided
by the panel and the Appellate Body and verify ing whether, upon confirmation, ... heading 02.10 as
opposed to heading 02.07 is the correct classification of the product at issue" 15; (2) on the basis of
this decision of the WCO, adopting a Commissi on Regulation amending Additional Note 7 to
heading 02.10 of the European Communities' Co mbined Nomenclature; and (3) if necessary,
depending on the decision of the WCO, amendi ng additional Explanatory Notes of the Combined
Nomenclature and adopting a "classif ication regulation" with respect to the product at issue in this
dispute.16
8. The European Communities emphasizes that it is the prerogative of the implementing
Member to select the means of implem entation that it deems "most appropriate". 17 Only after the
Member has selected how it will implement the DSB's recommendations and rulings should an
arbitrator consider whether the proposed reasonable period of time is "the shortest period possible" for
the anticipated means of implementation w ithin the legal system of that Member. 18 S u c h

11European Communities' submission, para. 25.
12European Communities' submission, para. 28.
13European Court of Justice, Judgment, Dinter v Hauptzollamt Köln-Deutz , Case C-175/82,
ECR [1983] 969 (Exhibit-EC-12 submitted by the European Communities to the Panel).
14European Court of Justice, Judgment, Gausepohl-Fleisch GmbH v. Oberfinanzdirektion Hamburg ,
Case C-33/92, ECR [1993] I-3047 (Exhibit EC-14 submitted by the European Communities to the Panel).
15European Communities' submission, para. 30.
16European Communities' submission, para. 32.
17European Communities' submission, para. 19.
18European Communities' submission, para . 18 (citing Award of the Arbitrator, EC – Hormones ,
para. 26; Award of the Arbitrator, Australia - Salmon , para. 38; Award of the Arbitrator, Korea – Alcoholic
Beverages, para. 37; Award of the Arbitrator, Canada – Autos , para. 41; Award of the Arbitrator, Canada –
Patent Term, para. 38; Award of the Arbitrator, US – Offset Act (Byrd Amendment) , para. 42; Award of the
Arbitrator, EC – Tariff Preferences, para 26; Award of the Arbitrator, US – Oil Country Tubular Goods Sunset
Reviews, para. 25).

consideration necessarily involves an appreciation of the flexibility inherent in the concept of
"reasonableness", such that the "particular circumstances of each case" are taken into account.
19
1. Ruling from the World Customs Organization
9. The first "particular circumstance" invoked by the European Communities in this arbitration
is that "the scope [of the relevant WTO provisions in this dispute is] determined by the actions and
decisions of … the WCO." 20 According to the European Communities, WTO Members agreed to use
the headings and sub-headings of the Harmonized Commodity Description and Coding System of the
WCO (the "Harmonized System") as the basis for tariff negotiations, and their agreement to do so was
found by the Appellate Body to c onstitute context for the interpre tation of a Member's schedule,
pursuant to Article 31(2) of the Vienna Convention on the Law of Treaties (the "Vienna Convention").
As the WCO Secretariat indicated to the Panel in its response to the Panel's questions, any
interpretation of a WTO Member's tariff schedule would effectively be an interpretation of the
headings and sub-headings of the Harmonized Syst em. However, the scope of the headings and sub-
headings of the Harmonized System is the subject of negotiations among the Contracting Parties of
the WCO, not among the Members of the WTO. In the view of the European Communities, this
competence of the WCO was recognized by th e Appellate Body in its decision in EC – Computer
Equipment.21
10. The European Communities asserts that the Harmonized System Convention mandates the
uniform interpretation and application of the head ings and sub-headings of the Harmonized System,
and to this end includes a procedure providing fo r WCO organs to resolve classification disputes
between WCO Contracting Parties. Accordi ng to the European Communities, because WTO
Members base their schedules on the nomenclature set out by the Harmonized System, and
Contracting Parties of the WCO have committed to maintaining a uniform interpretation of headings
in the Harmonized System, implementation in this dispute "requires [the European Communities] to
ensure that it is acting in conformity with its HS obligations."22

19European Communities' submission, para. 22 (quoting Award of the Arbitrator, US – Offset Act (Byrd
Amendment), para. 42, itself citing Award of the Arbitrator, US – Hot Rolled Steel, para. 25).
20European Communities' submission, para. 35.
21European Communities' submission, para. 46 (citing Appellate Body Report, EC – Computer
Equipment, paras. 89-90).
22European Communities' submission, para. 45.

11. The European Communities also ma intains that, in its interpre tation of heading 02.10 of the
European Communities' Combined Nomenclature—whi ch is based on the identical heading used in
the Harmonized System—the Appellate Body "did not fully examine the application of" the
Harmonized System's General Rules of Interpretation. 23 Indeed, the Appellate Body even
acknowledged that the Harmonized System did not prevent the European Communities from
considering preservation as a criterion in determini ng whether a product was "salted". Moreover, the
European Communities asserts that "a WCO ruling will give the Commission the possibility to go
beyond a previous judgment of the ECJ which inte rprets heading 02.10 in a manner different from
that ultimately followed by the panel and the Appellate Body."
24
12. Viewed in this light, the European Communities argues, implementation of the DSB's
recommendations and rulings requires the Europ ean Communities to seek a decision from the WCO
on the scope of heading 02.10 in order to ascertain precisely what measures must be taken within the
Community legal order. Such a first step is not "extraneous" to the objective of implementing the
DSB's recommendations and rulings in this dispute
25, but rather, is "fully within the EC’s discretion to
choose the most appropriate means of implementation."26
13. On 6 January 2006, the European Communities took the first step to initiate the dispute
settlement procedure at the WCO, namely, pl acing the matter on the agenda of the March 2006
meeting of the Harmonized System Committee of the WCO. Practice suggests that the matter will be
referred to the scientific sub-committee for further examination. Because this sub-committee meets
only in January, the matter cannot be considered until the sub-committee's next meeting in
January 2007. The Harmonized Syst em Committee will therefore be able to take a decision on the
matter only at its next meeting after January 20 07. Given that the Harmonized System Committee
must meet twice a year, and that its last meeting in 2006 will be in October, the first meeting after
January 2007 may reasonably be expected to be in March 2007.

23European Communities' submission, para. 54.
24European Communities' submission, para. 44.
25European Communities' submission, para. 45.
26European Communities' submission, para. 44.

2. Steps Under Community Law

14. The second "particular circumstance" identified by the European Communities is "that the
findings of the Appellate Body that there is no requirement of preservation in the [European
Communities'] Schedule directly contradict standing case law" of the ECJ.
27
15. The European Communities recalls that judgments of the ECJ make clear that heading 02.10
in the Combined Nomenclature contains a require ment of long-term preservation for products falling
under that heading. Implementation of the DSB's recommendations and rulings in this dispute
therefore requires that the scope of heading 02.10 be modified under Community law, in particular by
amending Additional Note 7 to heading 02.10.
16. The European Communities contends that, although the Commission "enjoys a wide
discretion in determining the subject matter of a ta riff heading", such discretion is not unlimited.
28 In
this respect, the ECJ has ruled that the Commission may not alter the scope of those tariff headings
that are based on the Harmonized System because the European Communities has undertaken in the
Harmonized System Convention not to modify the scope of those headings. The European
Communities submits that this constraint is partic ularly relevant here, where the WCO Secretariat
raised before the Panel its concerns regarding th e interrelationship between the rules of the WCO and
the WTO in this dispute. Accordingly, in th e European Communities' view, a ruling from the WCO
will be necessary for the Commission to secure a Regu lation revising the scope of heading 02.10 in a
manner contrary to ECJ jurisprudence.
17. Passing such a Regulation requires that the Commission follow the procedures set out in
Council Regulation 2658/87 after receiving a decision from the WCO's Harmonized System
Committee. The first step is for the responsible Di rectorate General of the Commission to review that
decision and prepare draft legislation accordingly, a process estimated to take three or four weeks.
The draft legislation is then sent for discussion to the Agriculture/Chemicals section of the Customs
Code Committee before being submitted for "forma l interservice consultation" among the relevant
Commission departments.29 The interservice consultation stage l asts two to three weeks, after which
the draft legislation is translated into the twenty official Community languages.

27European Communities' submission, para. 61.
28European Communities' submission, para. 66 (citing French Republic v. Commission, Case C-267/94,
ECR [1995] I-4845, para. 20 (Exhibit EC-22 submitted by the European Communities to the Panel)).
29European Communities' submission, para. 75.

18. The Agriculture/Chemicals section of the Cust oms Code Committee then reviews the draft
legislation and provides an opinion. Because th at section meets only four times per year, the
European Communities estimates th at the legislation could not be discussed until a meeting in
May/June 2007 and an opinion could not be provided until October 2007, both assuming a WCO
decision in March 2007. After receiving the opinion, the Commission must vote to adopt the
legislation which will likely require an additional two to three weeks. In the light of this procedure,
the European Communities argues, a new Commis sion Regulation amending Additional Note 7 to
heading 02.10 could not be finalized before November 2007. Should additional classification
Regulations be necessary from the Commission, howev er, or revisions to explanatory notes in the
Combined Nomenclature, these implementation measu res could be adopted within the same time-
frame.
B. Complaining Parties
1. Brazil

19. Brazil requests that I determine the "reasonable period of time" to be five months and ten days
from the date of adoption of the Panel and Appellate Body Reports, to expire on 9 March 2006.
20. Brazil submits that various provisions of the DS U, including, in particular, Article 21, call for
"prompt compliance" by the implementing Member. Pursuant to Article 21.3(c), a Member is entitled
to a "reasonable" period of time for implemen tation only when immediate implementation is
"impracticable". Therefore, according to Braz il, the implementing Member bears the burden of
demonstrating that it would be impracticable to comply immediately with the recommendations and
rulings of the DSB, as well as the burden of de monstrating that the period of time it seeks for
implementation is "reasonable" within the meaning of Article 21.3(c). In Brazil's view, the European
Communities has failed to meet its burden here.
21. Brazil notes that the European Communities' proposed reasonable period of time of
26 months is intended to allow for multiple actions to be taken in order to implement the DSB's
recommendations and rulings. According to Brazil, of the proposed actions, only the adoption of a
Commission Regulation amending Additional Note 7 is required to ensure conformity with the
European Communities' WTO obligations set out in the Panel and Appellate Body Reports. Once
Additional Note 7 is amended, customs authoriti es will base their classification decisions on that
amendment and will therefore need no further guida nce in the form of additional regulations or
explanatory notes. Therefore, the other actions proposed by the European Communities—that is,
requesting a ruling from the WCO, adopting classi fication regulations, and amending Explanatory

Notes—are "not pertinent or necessary for complian ce" and should not be taken into account in
determining the reasonable period of time.
30
22. In addition, Brazil asserts that the Europ ean Communities took no action following adoption
of the Panel and Appellate Body Reports until it file d a letter with the WCO on 6 January 2006. This
failure to act, in Brazil's view, renders the Euro pean Communities "negligent in taking immediate
steps towards implementation." 31 In this respect, Brazil argue s that because the DSU mandates
prompt compliance, such lack of initiative by an implementing Member "must be adversely taken into
account" in the determination of the reasonable period of time. 32 Brazil finds support for this
proposition in the Awards of the Arbitrators in US – Section 110(5) Copyright Act and Chile – Price
Band System.33
(a) Ruling from the World Customs Organization
23. Brazil contends that the first phase of the European Communities' proposed implementation,
seeking a ruling from the WCO over a period of 18 months, is "neither pertinent nor necessary for
compliance."34 The European Communities' rationale fo r requesting a ruling from the WCO stems
from its view that any unilateral amendment to the scope of the European Communities' tariff
headings would effectively modify the headings and sub-headings of the Harmonized System,
contrary to the obligations of the Harmonized System Convention . As the Panel and the Appellate
Body recognized, however, the scope of heading 02 .10 of the European Communities' schedule is a
distinct matter from the interpretation given to heading 02.10 of the Harmonized System. Although it
is relevant as context for the interpretation of heading 02.10 of the Europ ean Communities' schedule,
the Harmonized System does not itself determine th e scope of a concession in a Member's tariff
heading.
24. In this respect, Brazil contends that the Europ ean Communities "regularly clarifies or amends
the [Combined Nomenclature] without modifyin g the [Harmonized System] or consulting the
WCO."35 Brazil recalls that the initial introduction of preservation as a criterion in the classification
of the product at issue resulted from appli cation of the Combined Nomenclature and from

31Brazil's submission, para. 161.
32Brazil's submission, para. 158.
33Brazil's submission, paras. 159-160 (citing Award of the Arbitrator, US – Section 110(5) Copyright
Act, para. 46; Award of the Arbitrator, Chile – Price Band System, para. 43).
34Brazil's submission, para. 83.
35Brazil's submission, para. 110.

Commission Regulation 1871/2003, which replaced A dditional Note 7 to heading 02.10. This
amendment did not involve a modification to the Harmonized System and did not compel the
European Communities to seek authorization from th e WCO. Similarly, Brazil points to Commission
Regulations 535/94, 1223/2002, 1871/2003, and 2344/ 2003 as examples of Combined Nomenclature
classification regulations and amendments that did not modify the Harmonized System and that did
not require recourse to the WCO by the European Communities. Therefore, Brazil asserts, the
European Communities is capable of modifying its Combined Nomenclature without altering the
Harmonized System and thereby violating the Harmonized System Convention.
25. Brazil argues that by seeking a decision from th e WCO, the European Co mmunities is in fact
"suggesting that the Appellate Body's findings, an d the DSB's recommendations, be subject to the
approval of the WCO, and that the WCO be the orga nization that ultimately determines whether the
measures at issue are consistent with" the Europ ean Communities' obligations in its WTO schedule.
36
Indeed, Brazil questions what the implications woul d be for implementation in this dispute if the
WCO were to arrive at a decision contrary to the fi ndings of the Panel and A ppellate Body. Because,
in Brazil's view, such a decision could not relieve the European Communities of the obligation to
implement the DSB's recommendations and rulings in this dispute, recourse to the WCO is
unwarranted. Instead, Brazil argues, seeking a rulin g from the WCO is an "extraneous objective" to
the recommendations and rulings of the DSB in this dispute.37
(b) Steps Under Community Law
26. Brazil contests that the European Communiti es requires eight months to pass a Commission
Regulation implementing the DSB's recommendations and rulings in th is dispute. According to
Brazil, the European Communities "agrees that actual compliance in its system can be achieved by a
simple amendment to the [Combined Nomenclature]." 38 Given that the Commission has the power to
adopt measures amending and clarifying the Combin ed Nomenclature without having recourse to the
Council, Brazil contends that, contrary to the Eu ropean Communities' assertions, the implementation
required in this dispute is of an executive or admini strative rather than legislative nature. Indeed, as
evidenced by the implementation process put forwar d by the European Communities, any purported
complexity of implementation is illusory and acco rdingly does not warrant a longer implementation
period.

36Brazil's submission, para. 88.
37Brazil's submission, para. 51 (referring to Award of the Arbitrator, EC – Export Subsidies on Sugar ,
para. 69).
38Brazil's submission, para. 57.

27. Brazil states that a new Commission Regulation requires that a draft proposal be prepared and
submitted for interservice consulta tion before being accepted by the Commission and translated into
the 20 official languages of the European Co mmunities. Noting the European Communities'
contention that this stage may take between one month and five days and one month and nineteen
days, Brazil argues that the shortest period possible for completion of this stage would be one month
and five days.
28. In the next stage of examining a proposal to amend the Combined Nomenclature, according to
Brazil, the Commission is guided by procedures set out in Council Decision 1999/468/EC, in
particular, the "management procedure" found in Ar ticle 4 of that Decision. Pursuant to this
procedure, the Customs Code Committee must generally provide an opinion on the draft proposal
within a time limit established by the Committee Chair. If that opinion is favourable, the Commission
may adopt the proposal immediately. Otherwise, the Commission must communicate the proposal to
the Council and may defer application of the propo sal for a period no longer than three months.
Brazil emphasizes that this three-month period is the longest (rather than shortest) period possible for
the conclusion of this stage of the process. On ce a proposal is adopted and becomes a Commission
Regulation, it must be published in the Official Journal . On the basis of past practice relating to
Commission Regulations amending the Combined Nomenclature
39, Brazil contends that most
Regulations are published one day following their a doption and enter into force on the twentieth day
following publication.
29. As an example of the time taken for this process, Brazil submits preparatory documents
relating to Commission Regulation 1871/2003, whic h introduced long-term preservation as a criterion
in heading 02.10. 40 Brazil observes that the time between the date on which the Customs Code
Committee received the draft proposal (after interservice consultation) and the date that the
Regulation entered into force was two months and tw o days. Considering the additional time needed
for the earlier stages of drafting and interservice c onsultation, Brazil contends that five months and
ten days is a sufficient period to ensure adoption of a Commission Regulation that would comply with
the DSB's recommendations and rulings in this dispute.

39See Exhibit BRA-12 submitted by Brazil in this Arbitration.
40Exhibit BRA-13 submitted by Brazil in this Arbitration.

(c) Article 21.2 of the DSU
30. Brazil submits that, in determining the reasona ble period of time, I should bear in mind the
requirement in Article 21.2 of the DSU to pay "[ p]articular attention ... to matters affecting the
interests of developing country Members with respec t to measures which have been subject to dispute
settlement." In Brazil's view, this provision applies equally to the interests of developing countries as
complaining as well as implementing Members.
31. Brazil highlights the effects that the challenged measures—Commission
Regulation 1223/2002 and Commission Decision 2003/97/EC—have had on Brazil's interests. To
this end, Brazil refers to lost sales in the Co mmunity market, observing that, based on export growth
in the three years preceding the adoption of challenged measures, the volume of exports to the
European Communities was 170,000 metric tons below what could have been expected in the absence
of those measures, representing a loss of €300 million.
32. Brazil also submits that the poultry industry is a critical sector in the Brazilian economy,
responsible for the creation of at least 180,000 jobs. The poultry industry, in particular several large
firms, has been important in making investments an d generating jobs in disa dvantaged regions within
Brazil. Certain poultry firms have also served their communities by providing social programs to
address the needs of the poor. As a result, Brazil clai ms, this industry has been vital to the trade and
social development of Brazil, thereby rendering pa rticularly acute the impact of the European
Communities' WTO-inconsistent measures in this dispute.
2. Thailand

33. Thailand requests that I determine the "reasonabl e period of time" to be six months from the
date of adoption by the DSB of the Panel and Appellate Body Reports, that is, until 27 March 2006.
34. Thailand observes that the only measures in the terms of reference for this dispute were
Commission Regulation 1223/2002 and Commission Decision 2003/97/EC. The European
Communities, however, identifies in its written subm ission other measures that it claims must be
brought into conformity during the course of implementation, namely, Additional Note 7 to
heading 02.10 of the European Commun ities' Combined Nomenclature, the Dinter and Gausepohl
judgments of the ECJ, as well as certain Expl anatory Notes in Chapter 2 of the Combined
Nomenclature. Thailand agrees that "it would provi de a positive solution to this dispute" if the

European Communities modified these additional measures to reflect the recommendations and
rulings of the DSB.
41
(a) Ruling from the World Customs Organization
35. Thailand submits that the European Communiti es is not required to seek a decision from the
WCO in order to implement the DSB's recommendations and rulings in this dispute. Thailand argues
that the Panel and Appellate Body's interpretati on of heading 02.10 of the European Communities'
schedule was within their exclusive competence, as the European Communities' schedule is an
integral part of the GATT 1994, which is a cove red agreement. The Appellate Body explicitly
identified the Harmonized System as context under Article 31(2) of the Vienna Convention. As such,
the Harmonized System was only one of several elemen ts used to interpret the scope of heading 02.10
of the European Communities' schedule . Moreover, Thailand asserts that although GATT schedules
may be based on the Harmonized System, Members are permitted to include descriptions of products
falling under specific tariff headings, which may then be used to interpret th e scope of those tariff
headings. The findings of the Appellate Body, ther efore, were based on factors particular to the
European Communities' schedule and did not delineat e the scope of heading 02.10 of the Harmonized
System itself. Thailand argues that this fact fu rther highlights the erroneous assumption underlying
the European Communities' decision to seek a ruling from the WCO, that is, that the findings of the
Panel and the Appellate Body modified the scope of the headings and sub-headings of the
Harmonized System.
36. Thailand adds that nothing in the Harmonized System Convention requires Contracting Parties
to obtain authorization from the WCO when dete rmining the terms and conditions of entry for
particular goods. Even if the WCO were to determine that the term "salted" in heading 02.10 of the
Harmonized System refers only to salting for preservation—as the European Communities
contends—the European Communities would not be precluded from interpreting heading 02.10 of its
schedule to cover all salted products, including those not sa lted for preservation. Indeed, Thailand
observes, the European Commun ities did not obtain the WCO's authorization when enacting the
original Additional Note 7 in 199 4, which made no reference to preservation. Thailand therefore
contends that there is no basis to seek a decisi on from the WCO to revert to that wording of
Additional Note 7 that did properly permit the pr oduct at issue to be entered under heading 02.10
without the requirement of preservation.

41Thailand's submission, para. 12.

37. Thailand also argues that the European Commun ities' proposed recourse to the WCO rests on
an erroneous understanding that a Member's oblig ations under Articles 17 and 21 of the DSU to
implement DSB recommendations and rulings promptly, and to accept them unconditionally, may be
subject to obligations under the Harmonized System Convention. Thailand contends that to accept the
European Communities' position that it must first seek recourse to the WCO in order to implement the
recommendations and rulings in this dispute would be to "make a ruling that would call into question
the rulings of the Panel and the Appellate B ody by subjecting them to a review by another
international body."42
38. Thailand further considers misplaced the Eur opean Communities' reliance on the Appellate
Body's decision in EC – Computer Equipment . In Thailand's view, the Appellate Body in that case
addressed the relevance of decisions of the Ha rmonized System Committee in determining the
existence of "subsequent practice" within the meaning of Article 31.3(b) of the Vienna Convention.
No such decisions exist in this dispute and, in any event, whatever utility the decisions of the
Harmonized System Committee of the WCO might have in assessing subsequent practice, they do not
appear to be relevant now that the adjudicative phase of the dispute has been completed.
(b) Steps Under Community Law
39. Thailand argues that the only time-periods rele vant for the determination of a reasonable
period of time for implementation of the DSB' s recommendations and rulings are those for the
issuance of a new Commission Regulation amending Additional Note 7 to heading 02.10 of the
European Communities' schedule. On this basis, Thailand calculates six months as the reasonable
period of time for implementation in this dispute.
40. As an initial matter, Thailand emphasizes the fa ilure of the European Communities to begin
the process of implementation as soon as the Panel a nd Appellate Body Reports in this dispute were
adopted by the DSB. Thailand submits that the first step taken by the European Communities towards
implementation was its letter of 6 January 2006 to the WCO, requesting that this matter be placed on
the agenda of the next Harmonized System Committ ee meeting. In Thailand's view, it may not be
surprising that the European Communities has take n no steps towards implementation, based on its
view that a decision from the WCO is a prerequisite to the commencement of the internal Community
procedures for drafting a new Commission Regulation. Referring to the Award of the Arbitrator in
 US – Section 110(5) Copyright Act , Thailand contends that the Eu ropean Communities' inaction to
date should not justify a longer "reasonable period of time" for implementation.

42Thailand's submission, para. 36.

41. With respect to the time-frame set out by th e European Communities for the passage of new
legislation, Thailand submits that the Europ ean Communities failed to take into account new
procedural rules, effective 1 January 2006, gove rning consultations between the Commission and the
Customs Code Committee. These new procedures, detailed in Commission Decision 2005/960/EC,
eliminate one of the steps described by the Europ ean Communities in its written submission, namely,
the consultation with the Customs Code Committe e before submitting the draft Regulation to the
"formal interservice consultation".
42. Thailand recognizes the role of the Agricultu re/Chemicals section of the Customs Code
Committee in reviewing the draft Regulation. A ssuming, as the European Communities submits, that
the Agriculture/Chemicals section meets only four times per year, at intervals of roughly three
months, Thailand asserts that the issuance of my Awa rd before the end of February means that an
opinion could be provided on draft legislation du ring the anticipated March 2006 meeting. Adding
two weeks from this meeting for adoption of the le gislation by the Commission, Thailand argues that
the legislative process could be completed by 27 Marc h 2006, that is, within six months from the date
of adoption of the Panel and Appellate Body Reports in this dispute.
43. Thailand rejects the European Communities' contention that the absence of a ruling from the
WCO will render implementation more complex. Th ailand submits, however, that if I accept this
assertion of the European Communities, then the add itional time granted for such complexity be "no
longer than two months at the very outset", bringing the total proposed time period to eight months.
43
III. Reasonable Period of Time
44. This dispute relates to the tariff treatment by the European Communities of imports of frozen
boneless chicken cuts impregnated with salt, with a salt content of 1.2 to 3 per cent. It arises from
requirements applied to imports of this product by the European Communities through its Combined
Nomenclature. According to these requirements, only products that are sufficiently impregnated with
salt so as to ensure preservation of meat may be entered under heading 02.10 of its Combined
Nomenclature ("meat and edible meat offal, salted, in brine, dried or smoked"); in contrast, fresh,
chilled, or frozen poultry that do not meet th ese requirements must instead be entered under
heading 02.07 ("meat and edible offal, of the poultry of heading No. 0105, fresh, chilled or frozen").
45. These requirements were applied by virtue of Commission Regulation 1223/2002 and
Commission Decision 2003/97/EC, which resulted in a reclassification of the product at issue from

43Thailand's submission, para. 54.

heading 02.10 to heading 02.07 of the Combined Nomenclature. 44 If entered under heading 02.07 of
the Combined Nomenclature, the product at issue would be subject to a bound specific duty rate
of 1024 ECU/T or 102.4€/100kg/net, as well as a special safeguard mechanism provided for in
Article 5 of the Agreement on Agriculture. If entered under heading 02.10, the product at issue would
be subject to a final bound duty rate of 15.4 per cent. 45 The Panel found that, if entered under
heading 02.07, "there is clearly a possibility that the price of the products at issue [would] be
sufficiently low so as to produce an ad valorem equivalent that exceeds that applicable for products
covered by the concession contained in heading 02.10 of the [European Communities'] Schedule."
46
Subsequent to enacting the challenged measur es, the European Communities also enacted
Commission Regulation 1871/2003, which amended Additional Note 7 to heading 02.10 of the
Combined Nomenclature so that the term "salted" in heading 02.10 "mean[s] meat and edible meat
offal deeply and homogeneously impregnated with sa lt in all parts and having a total salt content of
not less than 1.2% by weight, provided it is the salting which ensures long-term preservation."47
46. The Panel found that Commission Regulation 1223/2002 and Commission
Decision 2003/97/EC are inconsistent with the European Communities' obligations under
Articles II:1(a) and II:1(b) of the General Agreement on Tariffs and Trade 1994 (the "GATT 1994").48
On appeal, the Appellate Body reversed certain find ings relating to the Panel's interpretative analysis
under Articles 31 and 32 of the Vienna Convention on the Law of Treaties (the "Vienna Convention"),
but nevertheless upheld the Panel's finding that Commission Regulation 1223/2002 and Commission
Decision 2003/97/EC impose duties on the product at issue in excess of those provided for in the tariff
commitment under heading 02.10 of the European Communities' schedule. Accordingly, the
Appellate Body upheld the Panel's ultimate finding that Commission Regulation 1223/2002 and
Commission Decision 2003/97/EC are inconsistent with the European Communities' obligations
under Articles II:1(a) and II:1(b) of the GATT 1994. On the basis of these findings, the Panel and
Appellate Body recommended that the DSB request the European Communities to bring its two
measures—Commission Regulation 1223/2002 a nd Commission Decision 2003/97/EC—into
conformity with its obligations under the GATT 1994.
49

44See Appellate Body Report, paras. 142-143.
45Panel Reports, paras. 2.4 and 7.70.
46Panel Reports, para. 7.75.
47Article 1 of Commission Regulation 1871/2003. (emphasis added)
48Panel Reports, para. 8.1.

47. On 27 September 2005, the Dispute Settlement Body (the "DSB") of the World Trade
Organization (the "WTO") adopted the Panel a nd Appellate Body Reports in this dispute.
50 O n
18 October 2005, the European Communities informed the DSB of its intention to comply with the
DSB's recommendations and rulings, but stated that it would require a reasonable period of time to do
so.51 Negotiations among the parties failed to produce a mutually agreed time period, and the parties
asked me to serve as Arbitrator to determine the "reasonable period of time" to implement the
recommendations and rulings of the DSB, pursuant to Article 21.3(c) of the Understanding on Rules
and Procedures Governing the Settlement of Disputes (the "DSU").
48. Article 21.3 of the DSU provides, in part:
If it is impracticable to co mply immediately with the
recommendations and rulings [of the DSB], the Member concerned
shall have a reasonable period of time in which to do so. The
reasonable period of time shall be:

(c) a period of time determined through binding
arbitration within 90 days after the date of adoption of
the recommendations and rulings. In such arbitration,
a guideline for the arbitrator should be that the
reasonable period of time to implement panel or
Appellate Body recommendations should not exceed
15 months from the date of adoption of a panel or
Appellate Body report. However, that time may be
shorter or longer, depending upon the particular
circumstances. (footnotes omitted)
49. My role as arbitrator in this dispute is limit ed. My sole mandate under Article 21.3 of the
DSU is to determine the "reasonable period of time" needed for implementation of the
recommendations and rulings of the DSB in this dis pute. Thus, in fulfilling this limited mandate, I
acknowledge that the implementing Member has a me asure of discretion in selecting the means of
implementation that it deems most appropriate; in other words, with respect to the implementing
measure, my task focuses on the when, not the what.
52 My concern is with time, not technique.
Furthermore, I agree with previous arbitrators who have carried out like mandates under Article 21.3
that I should base my determination on the shortest period of time possible within the legal system of

50WT/DS269/10, WT/DS286/12.
51WT/DSB/M/199, para. 30.
52See Award of the Arbitrator, Canada – Pharmaceutical Patents , paras. 41-43; Award of the
Arbitrator, Chile – Price Band System , para. 32; Award of the Arbitrator, EC – Tariff Preferences , para. 30;
Award of the Arbitrator, US – Oil Country Tubular Goods Sunset Reviews , para. 26; Award of the Arbitrator,
US – Gambling, para. 33; and Award of the Arbitrator, EC – Export Subsidies on Sugar, para. 69.

the implementing Member 53, and that in doing so I should bear in mind that the implementing
Member is expected to use whatever flexibility is available within its legal system in its efforts to
fulfil its WTO obligations. 54 Such flexibility, however, need not necessarily include recourse to
"extraordinary" procedures.55 As is made clear by Article 21.3( c), the "particular circumstances" of
this dispute may also affect my calculation of th e reasonable period of time, and may make it "shorter
or longer". All three parties to this dispute agre e that these general principles should guide me in
making my determination.
50. In this dispute, the European Communities proposes a two-step process for implementing the
recommendations and rulings of the DSB. To comp ly with those recommendations and rulings, the
European Communities suggests, first, that it must seek and receive a tariff classification decision
from the Harmonized System Committee of the Wo rld Customs Organization (the "WCO"), which
would require 18 months from the date the DSB adopted the Panel and Appellate Body Reports in this
dispute. According to the European Communities, a WCO decision is necessary as a prerequisite to
further implementation internally by the Commission because implementation of the DSB's
recommendations and rulings will require the Europ ean Commission effectively to reverse certain
judgments of the European Court of Justice (the "ECJ"). Therefore, the European Communities
argues, only after receiving a decision from th e WCO can it proceed to the second step of
implementation, which would be to adopt a Commi ssion Regulation amending Additional Note 7 to
heading 02.10 of the European Communities' Combined Nomenclature, specifying that preservation is
no longer a requirement for produc ts entering under heading 02.10. The European Communities
estimates that eight months would be require d to complete this proposed second step of
implementation. The European Communities adds that , while this Regulation is being enacted, other
Regulations—amending explanatory notes or codifyi ng classification decisions—may also be adopted
as necessary, depending on the particulars of a WCO decision. The European Communities thus
requests that I determine 26 months to be the reasonable period of time for this two-step
implementation process. I will consider each of these proposed steps in greater detail below.

53Award of the Arbitrator, Chile – Price Band System , para. 34; Award of the Arbitrator, Canada –
Pharmaceutical Patents, para. 47; Award of the Arbitrator, EC – Tariff Preferences , para. 26; Award of the
Arbitrator, US – Oil Country Tubular Goods Sunset Reviews, para. 25; and Award of the Arbitrator, EC – Export
Subsidies on Sugar, para. 61.
54Award of the Arbitrator, Chile – Price Band System , para. 39; Award of the Arbitrator, EC – Tariff
Preferences, para. 36; Award of the Arbitrator, US – Offset Act (Byrd Amendment), para. 64.
55Award of the Arbitrator, Korea – Alcoholic Beverages , para. 42; Award of the Arbitrator, Chile –
Price Band System, para. 51; Award of the Arbitrator, US – Offset Act (Byrd Amendment), para. 74.

A. Ruling from the World Customs Organization
51. With respect to the first step of the European Communities' proposed means of
implementation, I observe at the outset that the action envisaged—the classification decision of the
Harmonized System Committee of the WCO—is outside the lawmaking procedures of the European
Communities. In considering this proposed first step, I note, first of all, that disputes that give rise to
WTO dispute settlement under the DSU focus ex clusively on "measures taken" by a Member
56, and
that, accordingly, a measure that is the subject of a challenge in WTO dispute settlement must be
"attributable" to that Member. 57 Because measures so challenged originate in the decision-making
organs of a WTO Member's own legal system, an arbitrator under Article 21.3(c) may reasonably
expect that implementation would ordinarily be achieved by means entirely within the implementing
Member's lawmaking procedures. In that ordinary situation, a Member's prerogative to select the
means of implementation is particularly strong, and it is appropriate in that situation for an arbitrator
to refrain from questioning whether another, perhap s shorter, means of implementation is available
within that legal system.
52. The situation is not the same, however, where, as here, a Member seeks to implement
recommendations and rulings of the DSB by decision-making processes outside its domestic legal
order.58 Recourse to such external processes will not or dinarily form part of the implementation of
the recommendations and rulings of the DSB. 59 Accordingly, as I see it, the mere assertion by a
Member of the need for recourse to such exte rnal decision-making processes as part of an
implementation proposal is not entitled to the same deference as in the case of an implementation
procedure that is entirely within that Member's domestic legal system. Instead, in my view, an
implementing Member seeking to go outside its domestic decision-making processes bears the burden
of establishing that this external element of its proposed implementation is necessary for, and

56Article 3.3 of the DSU.
57Appellate Body Report, US – Gambling, para. 121 (quoting Appellate Body Report, US – Corrosion-
58I recognize that international treaties are binding on the institutions of the European Communities and
that certain treaties may have direct effect in the Community legal order. This does not change the fact that the
institutions set up by those treaties and decision-making processes followed by these institutions are outside the
framework of decision-making within the European Communities, and are thus not subject solely to the
decision-making authority of the European Communities.
59I do not suggest that recourse to processes outside an implementing Member's legal system is never a
relevant consideration when determining the reasonable period of time, only that such relevance may often not
be obvious and thus will need to be established by th e implementing Member in order for the arbitrator under
Article 21.3(c) to take it in to account. I see no need to state a genera l rule on this issue in making this award,
and therefore do not do so.

therefore indispensable to, that Member's full and effective compliance with its obligations under the
covered agreements by implementing the recommendations and rulings of the DSB.
53. Moreover, I note with some concern that, given the absence of any WCO decision at this time
that addresses the clarification by the Panel and the Appellate Body of the European Communities'
WTO tariff schedule, this proposed first step of implementation by the European Communities has the
potential to create a perceived obstacle to the necessary implementation of the recommendations and
rulings of the DSB in this dispute. As noted above, the DSB adopted the Panel and Appellate Body
Reports, finding that the two measures at issue are inc onsistent with Articles II:1(a) and II:1(b) of the
GATT 1994. It did so on the basis that, by requiring the product at issue to be classified under
heading 02.07 of the Combined Nomenclature, th e European Communities has imposed tariffs on the
product in question in amounts exceeding the amount guaranteed by heading 02.10 of the European
Communities' WTO schedule of tariff concessions.
54. I recall that all parties agreed, in the proceedi ngs before the Panel and before the Appellate
Body, that the tariff treatment under heading 02.07 is less favourable than that under heading 02.10,
and that if the product at issue is covered by h eading 02.10 of the Europ ean Communities' Schedule
rather than by heading 02.07, th e European Communities would be acting inconsistently with its
obligations under Article II of the GATT 1994.
60 The Panel and the Appellate Body did find that the
product at issue is covered by the tariff commitment contained in heading 02.10.61 At the oral hearing
in this proceeding, I raised the possibility that a decision by the WCO could call for classification of
the product at issue in a manner inconsistent w ith the European Communities' obligations under
Article II of the GATT 1994, as found by the Panel and the Appellate Body in their Reports, and as
adopted by the DSB. For example, the WCO might decide that the product at issue is properly
classified, according to the Harmonized System, under heading 02.07 rather than heading 02.10. In
the light of this possibility, I asked the European Communities during the oral hearing whether, if
faced with a WCO ruling that contradicted the WTO ru lings in this dispute, it would continue to take
those actions necessary to implement the recommendations and rulings of the DSB in fulfilment of its
WTO obligations. In response to my questions, the European Communities declined to commit
absolutely to implementing the recommendations and rulings of the DSB irrespective of the content of
a decision by the WCO. The European Communities stated instead that such a WCO ruling might

constitute "subsequent practice" that would change the state of the law for the purposes of possible
later review by an Article 21.5 panel.
62
55. It is axiomatic that alleged violations of the covered agreements must be redressed
exclusively through the procedures set out in the DS U, providing for examination of such allegations
by a panel and possibly the Appellate Body, and that, if violations are found and the relevant reports
are adopted by the DSB, the respondent Member is obliged to implement promptly the
recommendations and rulings of the DSB. Th ese recommendations and rulings are binding on
implementing Members, and give rise to an obligatio n to bring their WTO-inc onsistent measures into
conformity with their obligations under the covere d agreements. This obligation must be fulfilled
"prompt[ly] ... in order to ensure effective resolution of disputes to the benefit of all Members."
63
Arbitration under Article 21.3(c) furthers this obj ective by establishing a reasonable period of time
within which such "prompt" compliance must take place. The recommendations and rulings of the
DSB in this dispute will not be implemented by a classification decision by the WCO. Regardless of
the outcome of such a WCO decision, the recomme ndations and rulings of the DSB in this dispute
will be no closer to being implemented unless— and until—the European Communities takes action
internally to implement them. The European Communities states that it will not take any action
internally until it receives a WCO decision.
64 Thus, conceivably, a finding of the WCO on tariff
classification in response to a request for such a finding by the European Communities could have the
effect of prolonging this dispute rather than cont ributing to its resolution through implementation of
the recommendations and rulings of the DSB. In fulfilling my obligations as arbitrator under the
DSU, I am naturally reluctant to take into account , in my determination of the reasonable period of
time, the time needed to obtain from another in ternational organization a decision that may not
contribute to—or may possibly even hinder—the im plementation of the recommendations and rulings
of the DSB.
56. Although Members generally have discretion to determine their means of implementation,
this discretion is not without bounds. 65 Saying that selecting the means of implementing the
recommendations and rulings of the DSB is the prerog ative of the implementing Member is not at all
the same as saying that "anything goes". To d eclare otherwise would be to allow implementing
Members the discretion also to pursue implementation measures that needlessly and unduly extend the

62European Communities' responses to questioning at the oral hearing.
63Article 21.1 of the DSU. (emphasis added)
64European Communities' response to questioning at the oral hearing.
65Previous arbitrators agree. See Award of the Arbitrator, EC – Hormones, paras. 39-42; Award of the
Arbitrator, EC – Tariff Preferences , para. 31; Award of the Arbitrator, EC – Export Subsidies on Sugar ,
para. 69.

reasonable period of time needed for implementation. And this would be contrary to the objective of
Article 21.3 of the DSU. Therefore, under th ese specific circumstances, I cannot accept recourse to
the WCO as an element of the European Communitie s' proposed implementation that I must factor
into my calculation of the reasonable period of time simply because the European Communities has
proposed it. 66 Instead, the European Communities must demonstrate that this first step of
implementation is a requirement under Community law. I cannot just take their word for it; the
European Communities must establish that it is so.
57. Toward this end, the European Communities argues that two judgments of the ECJ, the
Dinter67 case of 1983 and the Gausepohl68 case of 1993, have imposed a requirement that the salting
of products entered under heading 02.10 of the Comb ined Nomenclature must be such as to ensure
preservation. According to the European Communities, the Panel and Appellate Body Reports in this
dispute found, contrary to these two rulings of th e ECJ, that preservation is not a requirement of
eligibility for products falling under heading 02.10 . The European Communities points out, however,
that the Commission cannot modify the scope of head ing 02.10 in a manner inconsistent with an ECJ
ruling—or, more specifically, the Commission ca nnot pass a Regulation amending Additional Note 7
to heading 02.10—without a classification decision from the WCO. 69 As a result, in the European
Communities' view, the Commission must receive a classification decision from the WCO as a
necessary first step toward implementation in this dispute. To do otherwise, the European
Communities insists, would be contrary to its own law.70
58. It is clear to me from the submission by the European Communiti es that the European
Communities' position rests on the perception of an alleged contradiction between the scope of
heading 02.10 as understood by the ECJ in Dinter and Gausepohl, and the scope of that heading as
understood by the Panel and Appellate Body in th is dispute. As I understand the European

66In this respect, I note my disagreement with the European Communities' contention that a "particular
circumstance" I should take into account here is the fact that "the scope [of the relevant WTO provisions in this
dispute is] determined by the actions and decisions of … the WCO." (European Communities' submission,
para. 35) As the Panel and the Appellate Body made clear in their Reports, the Harmonized System—which is
negotiated under the auspices of the WCO—does not "determine" the scope of heading 02.10 of the European
Communities' schedule of concessions, but rather, serves as context for the interpretation of the schedule. Both
the Panel and the Appellate Body made it abundantly cl ear in their Reports that they were interpreting the
European Communities' Schedule of Concessions, and not the Harmonized System. (Appellate Body Report,
para. 199; Panel Reports, para. 7.189)
67European Court of Justice, Judgment, Dinter v Hauptzollamt Köln-Deutz , Case C-175/82,
ECR [1983] 969 (Exhibit-EC-12 submitted by the European Communities to the Panel).
68European Court of Justice, Judgment, Gausepohl-Fleisch GmbH v. Oberfinanzdirektion Hamburg ,
Case C-33/92, ECR [1993] I-3047 (Exhibit EC-14 submitted by the European Communities to the Panel).
69European Communities' responses to questioning at the oral hearing.
70Ibid.

Communities' oral submissions, in the absence of such a contradiction, the European Commission
could proceed to adopt a Regulation amending Add itional Note 7 to heading 02.10 even without a
WCO decision.
71
59. In my limited role as arbitrator, I am bound not only by Article 21.3 of the DSU. I am bound
also by the factual findings and the legal judgments that form the basis of the Panel and the Appellate
Body Reports that have been adopted as recommendations and rulings by the DSB. So too are the
parties to the dispute. To those I turn to as sess this proposal by the European Communities as it
relates to these two ECJ cases.
60. The Panel and the Appellate Body examined these two ECJ judgments in the course of
interpreting heading 02.10 of the European Communiti es' schedule, and I consider their observations
on those judgments especially relevant to my cons ideration of the European Communities' proposed
implementation process here. The Panel stated that the ECJ, in Dinter, had analyzed heading 16.02 of
the Combined Nomenclature, dealing with "seasoned meat", and that the "general comments" made
by the ECJ with respect to Chapter 2 of the Combin ed Nomenclature were not relevant to the Panel's
interpretation of heading 02.10 of the European Communities' schedule.
72 As a result, the Panel
"[did] not consider the Dinter judgment" further in its interpretative analysis. 73 Although the ECJ, in
Gausepohl, addressed heading 02.10, the Panel found " certain ambiguities concerning the meaning
and effect of the Gausepohl judgment that are important fo r the purposes of the present case." 74 The
Panel pointed, inter alia , to two aspects of the Gausepohl judgment: (1) the judgment focused on
bovine meat, thereby leaving its applicability to other meats (including poultry) uncertain; and (2) the
judgment is unclear as to whether the 1.2 per cent salt content required for preservation "is a
minimum salt content below which meat can be assumed not to be salted for the purposes of
heading 02.10 or, rather, is a minimum salt conten t above which meat will be salted for the purposes
of heading 02.10." 75 Finally, the Panel found evidence of these ambiguities in the minutes of a
meeting of the European Communities' Customs Code Committee.76

71This is consistent with the Commission's general practice of passing Regulations relating to
classification or scope of the Combined Nomenclature, for which the Commission has historically not been
required to consult the WCO. (Brazil's submission, paras. 109-111; European Communities' responses to
questioning at the oral hearing)
72Panel Reports, para. 7.393.
73Panel Reports, para. 7.393.
74Panel Reports, para. 7.398.
75Panel Reports, para. 7.398.
76Panel Reports, para. 7.401.

61. For its part, the Appellate Body did not examine the substance of Dinter, stating that the date
of that judgment (1983) "diminishe[d] its releva nce" for understanding the scope of heading 02.10. 77
With respect to Gausepohl, the Appellate Body stated:
[I]t is not clear whether the ECJ's Gausepohl judgment requires that,
for purposes of heading 02.10, salting must ensure preservation … .
[W]e are not persuaded that Gausepohl must be understood in the
sense that the 1.2 per cent salt content is merely a minimum above
which it is necessary to show—i n addition—that salting ensures
long-term preservation.
78 (footnote omitted)
62. Thus, neither the Panel nor the Appellate Bo dy made definitive findings as to whether Dinter
and/or Gausepohl require products entered unde r heading 02.10 to contain sufficient salt to preserve
the meat being imported. But, to the extent that the Panel and the Appellate Body examined these
judgments, it seems to me that they expressed consid erable scepticism about such a reading of these
judgments. And they did so despite the fact that the same arguments made here by the European
Communities about these two ECJ judgments were made also by the European Communities during
the proceedings before the Panel and the Appellate Body. In the light of such scepticism, and given
that no definitive finding has been made by the Pane l or the Appellate Body with respect to the scope
of the Dinter and Gausepohl judgments, the European Communities, despite its considerable efforts in
this proceeding, has not shown to my satisfaction th at these judgments stand for what it claims, much
less has it established any reason why I should accept a reading of these judgments that is markedly
different from the reading suggested by the Panel and the Appellate Body. 79 Where the Panel and the
Appellate Body have expressed one view on issues rela ting to the substance of this dispute, I am not
free, in fulfilling my limited mandate as arbitrator, to express another. I am certainly not free in this
limited role to contradict the reasoning of th e Panel and Appellate Body that led to the
recommendations and rulings that have been adopted by the DSB. The purpose of an Article 21.3
arbitration is not to question the recommendations and rulings of the DSB; it is to establish the

77Appellate Body Report, para. 327.
78Appellate Body Report, paras. 335-336.
79I note in this regard that a previous arbitrator has similarly expressed reservations about basing
findings on unsettled or unclear issues of municipal law where neither a panel nor the Appellate Body itself
arrived at a view on those issues:
In asking me to draw this distinction, ... Antigua is effectively asking me to
make a ruling concerning the meaning and scope of application of United
States municipal law. I do not consider that it forms part of my mandate to
do so, given that the findings of the Panel and the Appellate Body make no
such distinction.
(Award of the Arbitrator, US – Gambling, para. 40)

reasonable period of time a Member should have to implement them. The aim of implementation is
implementation. Nothing less. And nothing more.
63. Because the European Communities has failed to establish its proffered interpretation
of the Dinter and Gausepohl judgments
80, I see no basis to conclude that implementing the
recommendations and rulings of the DSB in this dispute through a Commission Regulation amending
Additional Note 7 to heading 02.10 would be incons istent with those judgments. This "particular
circumstance" advanced by the European Communities is the sole basis on which it attempts to justify
the asserted need to have recourse to a classificati on decision from the WCO. Having found that this
"particular circumstance" does not exist, a nd bearing in mind the concerns expressed above 81, I find
no reason to account for the allowance of time fo r a WCO decision in my determination of the
reasonable period of time in this dispute.
64. The European Communities is free, of course, to seek a decision from the WCO; after all, it
is for the European Communities, as the implementi ng Member, to determine in the first instance
what it needs to do as a consequence of the recommenda tions and rulings of the DSB in this dispute.
It is for me, however, to fulfil my task under Artic le 21.3(c) of the DSU in determining the reasonable
period of time that the European Communities will need to implement those recommendations and
rulings; and I am not persuaded that the time it would take to obtain a decision from the WCO is
needed to accomplish the task of implementation.
B. Steps Under Community Law
65. Having found that a WCO decision does not form an appropriate part of my determination of
the reasonable period of time, I go on now to exam ine the second stage of implementation proposed
by the European Commun ities, relating to the actions requi red for the proposed passage of a
Commission Regulation amending Additional Note 7 to heading 02.10 of the Combined
Nomenclature. I begin by considering certain points raised by Brazil and Thailand with respect to the
overall process before turning to a closer examination of the steps involved in passage of the proposed
Commission Regulation under Community law.

80Although arbitrators under Article 21.3(c) are not called upon in the normal course of their duties to
pronounce on the meaning of municipal law, I am of the view, expressed above, that I am not permitted in the
circumstances of this case simply to accept the European Communities' understanding of the relevant ECJ cases.
This is so because this understanding is argued by the European Communities in an attempt to discharge its
burden of persuading me that action outside the domestic decision-making process of the European
Communities is necessary for implementation of the recomme ndations and rulings of the DSB in this dispute.
(Supra, para. 56)
81Supra, paras. 51-55.

66. First, Brazil and Thailand emphasize that since the adoption of the Panel and Appellate Body
Reports in this dispute on 27 September 2005, the European Communities has failed to take sufficient
steps towards implementation. Citing previous arbitr ation awards, they contend that this inaction on
the part of the European Communities should be refl ected in a reduction of the period of time that I
consider to be reasonable under Article 21.3(c) of the DSU. 82 The European Communities
acknowledged during the oral hearing that, four mo nths after the adoption of the recommendations
and rulings of the DSB, it had not yet taken any co ncrete steps toward implementation by formulation
of the proposed Regulation. 83 Based on the European Communities' submission, all that seems to
have occurred thus far is internal discussions with in the European Communities. Mere discussion is
not implementation. There must be something more to evidence that a Member is moving toward
implementation. I therefore agree with Braz il and Thailand that this failure to commence
implementation of the DSB's recommendations and ruli ngs is a factor that I should take into account
in determining the reasonable period of time for implementation.
67. Second, Brazil characterizes the implementa tion process proposed under Community law as
executive or administrative, and not as a legislative action.
84 The European Communities, however,
asserts that the powers to be exerci sed by the Commission in this case are legislative powers
delegated to the Commission by the Council. 85 I recognize that the Commission engages in a "law-
making" function, and thereby acts in a manner similar to legislatures when enacting a Regulation
amending Additional Note 7. In my view, however, this, alone, does not render the process legislative
such that additional time may be required for implemen tation. Previous arbitrations have highlighted
that implementation achieved through administrativ e processes generally requires less time than
implementing legislation.
86 This distinction is premised on the fact that administrative action
generally may be accomplished solely by one in stitution (often the Ex ecutive Branch) of the
implementing Member, whereas legislative action gene rally requires the partic ipation of additional

82Brazil's submission, paras. 157-163 (citing Award of the Arbitrator, US – Section 110(5) Copyright
Act, para. 46, and Award of the Arbitrator, Chile – Price Band System , para. 43); Thailand's submission,
paras. 40-42 (citing Award of the Arbitrator, US – Section 110(5) Copyright Act, para. 46).
83European Communities' response to questioning at the oral hearing. On 6 January 2006—more than
three months after the adoption of the recommendations and rulings of the DSB—the European Communities
did submit a letter to the WCO requesting that the classi fication of the product at i ssue be placed on the agenda
of the March 2006 meeting of the Harmonized System Committee. As I noted above, however, I do not
consider relevant for my determination of the reasonable period of time any actions relating to the European
Communities' request for a ruling from the WCO. (Supra, para. 63)
84Brazil's submission, para. 58.
85European Communities' responses to questioning at the oral hearing.
86See, for example, Award of the Arbitrator, Canada – Pharmaceutical Patents, para. 49; Award of the
Arbitrator, US – Section 110(5) Copyright Act, para. 34; Award of the Arbitrator, Australia – Salmon, para. 38;
Award of the Arbitrator, Canada – Patent Term, para. 41; Award of the Arbitrator, Chile – Price Band System,
para. 38.

institutions (typically at least the Legislative Br anch—likely to have slower, more deliberative
processes—possibly in conjunction with the Executive Branch as well).
87 The implementation steps
proposed by the European Comm unities under Community law are expected to be accomplished
exclusively by the Commission, w ithout involvement by the Council or the European Parliament. I
therefore do not consider these steps to be "legislativ e" in the sense in which I believe that term has
come to be understood in the context of arbitrati ons under Article 21.3(c). Accordingly, I must take
into account in my determination the administrative nature of the proposed implementation process.
68. All this settled, in determining the reasona ble period of time the European Communities
ought to have to fulfil its WTO obligations, I come now to the need to undertake detailed
consideration of the steps required under Comm unity law for passing a Commission Regulation to
implement the recommendations and rulings of the DSB in this dispute. As discussed above, the
European Communities submits that eight months is required to pass such a Regulation. Setting aside
the specific circumstances of this case—in particul ar, the alleged need for the European Communities
to secure a WCO decision before initiating Co mmission action—the European Communities notes
that, in general, Regulations relating to the Comb ined Nomenclature must follow a "more complex"
adoption procedure and will therefore warrant more than the eight months proposed by the European
Communities.88 In this regard, the European Communiti es points in particular to one additional
consultation the Commission would have to have with the Customs Code Committee when drafting a
Regulation in the absence of a WCO decision. 89 According to the European Communities, the
minimum time required for enacting a Commi ssion Regulation relating to the Combined
Nomenclature, but not based on a WCO decision, is 185 working days. Assuming five working days
per week, by my calculation, this is the equivale nt of 259 calendar days, which is roughly between
eight and nine months.
69. The parties agree that the first step in passing the Commission Regulation involves
preparatory work within the Commission, includ ing research, departmental analysis within the
responsible Directorate-General, and translation of documents into the working languages of the

87See, for example, Award of the Arbitrator, Chile – Price Band System, para. 38:
I agree with the observation of previo us arbitrators that implementation
through legislation is likely to require a longer time for implementation than
administrative rulemaking or other exclusively Executive action . (emphasis
added) (footnote omitted)
88European Communities' submission, para. 77.
89European Communities' responses to questioning at the oral hearing. The European Communities
maintains that, in any event, the Commission is without authority to enact a Regulation in this case without a
WCO ruling and that, therefore, any consideration of time-frames for enacting such a Regulation is hypothetical.
Nevertheless, the European Communities provided me with the process and likely time-frame, in its view, for
enacting a standard Regulation relating to the Combined Nomenclature.

Commission (English, French, and German). The European Communities submits that, although this
step requires no minimum time period by law, a reas onable period of 15 working days is required for
such groundwork. 90 Brazil and Thailand argue that, in the absence of specified time periods, the
Commission must employ the flexibility in its system to complete its preparatory work as quickly as
possible.91
70. The next step involves the first consultation w ith the Customs Code Co mmittee to assist in
identifying more precisely what course of action mi ght be pursued to achieve the relevant objective—
specifically, whether to adopt a classification regulati on, explanatory note, or additional note. This
consultation is not mandated by law, although the Rules of Procedure of the Customs Code
Committee and Council Regulation 2658/87 appear to allow for such informal discussions. 92 T h e
European Communities contends that, based on the re quirement for the distribution of the agenda at
least 14 calendar days in advance of the meeting 93, this step will take 10 working days to complete.
The European Communities argues that 10 worki ng days will similarly be required for the second
consultation with the Customs Code Committee, which is also not legally mandated, but during which
the Committee provides its first views on the draft Regulation. 94 Both of these consultations with the
Customs Code Committee, according to the European Communities, re flect "standard practice", and
are evidenced in the preparatory work of Commission Regulation 1871/2003, which initially
introduced the long-term preservation criterion in Additional Note 7 to heading 02.10 of the
Combined Nomenclature.95
71. Thailand submits that the requirement of 14 calendar days cited by the European
Communities for the distribution of the agenda of the Customs Code Committee applies only when
the Commission requests an opinion from the Committee, rather than when the Commission consults
the Committee on a new Regulation. 96 Thailand further contends that new rules of procedure went

90European Communities' responses to questioning at the oral hearing.
91Brazil and Thailand's responses to questioning at the oral hearing.
92Rules of Procedure of the Customs Code Committee, Art. 3.2(c) (Exhibit THA-4 submitted by
Thailand in this Arbitration); Council Regulation 26 58/87, Art. 8 (Exhibit BRA-6 submitted by Brazil in this
Arbitration).
93Rules of Procedure of the Customs Code Committee, Art. 4.1 (Exhibit THA-4 submitted by Thailand
in this Arbitration).
94European Communities' responses to questioning at the oral hearing.
95European Communities' responses to questioning at the oral hearing; Exhibit EC-4 submitted by the
European Communities in this Arbitration.
96Thailand's response to questioning at the oral hearing (citing Article 8 of Council Regulation 2658/87
(Exhibit BRA-6 submitted by Brazil in this Arbitration)).

into effect for the Commission on 1 January 2006
97, and that, under these procedures, the Commission
is expected to consult with the Customs Code Committee only once, before the drafting of the new
Regulation. According to Thailand, there is th erefore no need to account for the second consultation
with the Customs Code Committee after the Regulation has been drafte d and before the interservice
consultation.98 The European Communities disagrees with Thailand, explaining that the
Commission's consultation with the relevant management committee when adopting a new Regulation
is not governed by the Commission's rules of pro cedure, but rather, by Council Regulation 2658/87.
This Council Regulation, according to the Eu ropean Communities, plainly allows for the
aforementioned informal consultations with the Committee, and cannot be modified by a Commission
Decision on its internal rules of procedure.99
72. Between the two consultati ons with the Customs Code Committee, the European
Communities claims, the Commission will need 35 working days for further analysis and for
composing the draft Regulation (in the light of the first consultation with the Customs Code
Committee), followed by 15 working days for transl ation of the draft Regulation into the three
working languages of the Commission. The Eur opean Communities acknowledges that these actions
are not required by Regulation, but the Europ ean Communities asserts that they are an essential
component of the process of enacting a new Regulation.
100 Brazil and Thailand observe that the time
period for drafting of the Regulation is not stipulated by law, and that, given the relative simplicity of
what is required to remove the effects of the WTO- inconsistent measures in this case, 35 days is not
required for preparing the draft Regulation.101
73. After the second consultation with the Customs Code Committee, according to the European
Communities, the draft Regulation will need to be revised before being sent to other departments
within the Commission for additional consultati on and consequent modifications, followed by
translation into all the official languages of the European Communities. Furthermore, the European

97The new procedures relied upon by Thailand are found in Commission Decision 2005/960/EC
(Exhibit THA-1 submitted by Thailand in this Arbitration).
98Thailand's submission, para. 47 (citing Article 23.3 of Commission Decision 2005/960/EC);
Thailand's response to questioning at the oral hearing. Article 23.3 of Commission Decision 2005/960/EC
provides:
Before a document is submitted to the Commission, the department
responsible shall, in acco rdance with the implemen ting rules, consult the
departments with a legitimate interest in the draft text in sufficient time.
(Exhibit THA-2 submitted by Thailand in this Arbitration)
99European Communities' response to questioning at the oral hearing.
100European Communities' responses to questioning at the oral hearing.
101Brazil's and Thailand's responses to questioning at the oral hearing.

Communities states, pursuant to the Commission's Manual of Operating Procedures, other
departments must be provided at least 10 worki ng days for interservice consultation on the draft
Regulation.102 The European Communities suggests that, to this minimum of 10 working days for
interservice consultation, 10 working days must be added for revisions based on the second round of
consultation with the Customs Code Committee, and 30 days must be added to cover translation and
modifications to the draft regulation based on the results of the interservice consultation.
74. Brazil contends that the European Commun ities overstates the need for interservice
consultations, particularly with respect to th e Commission's Legal Service, because the Manual of
Operating Procedures explicitly notes that the opinion of the Legal Service is not required where, as
here, the Commission is exercising its delegated powers.103 In response, the European Communities
submits that Brazil misunderstands this statement in the Manual because the Legal Service's opinion
is not required only where powers are delegated within the Commission, not where implementing
powers are delegated from the Council, as is the case here.104
75. The next step in the process provides for th e Agriculture/Chemical section of the Customs
Code Committee to deliver a formal opinion on the draft Regulation, pursuant to Articles 9 and 10 of
Council Regulation 2658/87. 105 The European Communities asserts that the Agriculture/Chemical
section "meets only 4 times a year, at intervals of rou ghly three months (i.e. in March, late May/June,
October and December)." 106 Furthermore, as with the two c onsultations with the Customs Code
Committee, the Rules of Procedure require that the ag enda and draft Regulation be distributed at least
14 calendar days before the meeting. 107 The European Communities asks me to take into account 10
working days to receive the opinion of the Customs Code Committee.108
76. Thailand argues that the Committee's Rules of Pr ocedure provide the Chair with the right to
convene a Customs Code Committee meeting whenev er the Chair deems appropriate, and thus, an
opinion could be provided even if a meeting of the Agriculture/Chemical section were not scheduled

102Exhibit EC-6 submitted by the European Communities in this Arbitration.
103Letter from Brazil to the Arbitrator, dated 31 January 2006, p. 2 (quoting Commission's Manual of
Operating Procedures (Exhibit EC-6 submitted by the European Communities in this Arbitration)).
104Letter from the European Communities to the Arbitrator, dated 1 February 2006, p. 1.
105European Communities' submission, para. 76; European Communities' response to questioning at
the oral hearing.
106European Communities' submission, para. 76.
107Rules of Procedure of the Customs Code Committee, Art. 4.1 (Exhibit THA-4 submitted by Thailand
in this Arbitration).
108European Communities' responses to questioning at the oral hearing.

for another three months.
109 In any event, according to Thailand, given that this Award is to be
released on 20 February 2006, the Agriculture /Chemical section meeting in March 2006 could
provide an opinion on the Commission's draft Regulation at that meeting.110
77. The final step of the process before publicati on is what the European Communities refers to
as the "habilitation procedure", which I understand to be a procedure whereby the Commission, as a
collective body, may delegate certain tasks (includi ng adoption of the final Regulation) to one of the
Commission Members, which may also be sub-delegated to lower officials within the Commission. 111
Although no legal time-frames are provided for the habilitation procedure, the European Communities
submits that, based on past practice, this step will require 10 working days. Brazil and Thailand
suggest that, where there is no minimum time period prescribed by law, as in the case of the
habilitation procedure, the amount of time proposed by the European Communities is excessive.
112
78. Lastly, the European Communities considers that publication of the Regulation in the Official
Journal and the entry into force of the Regulation will require an additional 30 working days 113, based
in part on the legal requirement that, absent specifi cation in the Regulation, it will enter into force on
the twentieth calendar day following its publication. 114 Brazil rejects the need for 30 days for this
phase of the process. On the basis of its review of fifty Commission Regulations relating to
classification or amending the Combined Nomenclatu re, Brazil contends that "nearly all Commission
Regulations" are published one day following adopti on and enter into force on the twentieth day
thereafter, resulting in a total of 21 days rather than 30.115

109Thailand's submission, para. 51 (citing Customs Code Committee's Rules of Procedure,
TAXUD/741/2001 (Exhibit THA-4 submitted by Thailand in this Arbitration)).
110Thailand's submission, para. 52.
111European Communities' response to questioning at the oral hearing. The European Communities
contends that the "habilitation procedure" is reflected in Article 13 of the Commission's Rules of Procedure,
titled "Decisions taken by empowerment procedure". (European Communities' response to questioning at the
oral hearing, citing Commission Decision 2005/960/EC (Exhibit THA-2 submitted by Thailand in this
Arbitration))
112Brazil's and Thailand's responses to questioning at the oral hearing.
113European Communities' response to questioning at the oral hearing.
114Article 254(2) of the Treaty Establishing the European Community provides:
Regulations of the Council and of the Commission, as well as directives of
those institutions which are addressed to all Member States, shall be
published in the Official Journal of the European Union. They shall enter
into force on the date specified in th em or, in the absenc e thereof, on the
20th day following that of their publication.
115Brazil's submission, para. 73 (citing its analysis of fifty Commission Regulations, contained in
Exhibit BRA-12 submitted by Brazil in this Arbitration).

79. Certain observations may be made with respect to these Community procedures. First, not all
of the actions identified by the European Co mmunities are required under Community law when
passing a Commission Regulation. In some instances, this may suggest that those actions not required
by law are to be given less weight in my determination of the reasonable period of time. 116 In other
instances, however, the fact that a certain action is not mandated does not mean that such action is
irrelevant to my determination. 117 In this respect, I note, in pa rticular, that certain procedures and
time-frames, while not mandated, are based on st andard practice as the European Communities has
substantiated with relevant evidence. 118 While WTO Members will, unquestionably, always want to
ensure that they are complying fully with all of their WTO obligations by implementing adverse WTO
rulings as quickly as possible in their own legal system s, ordinarily their standard practices in those
systems should suffice.
80. Second, certain of the time periods mentioned above are estimates provided by the European
Communities, but are not minimum periods required by law. I agree with previous arbitrators that, in
such situations, the implementing Member should be expected to use the flexibility reasonably
available within its system to ensure pr ompt compliance with its WTO obligations.
119 Third, where
time periods are asserted for a particular proposed step, but are not supported by evidence, I have
considered the views put forward by the parties, and have arrived at an understanding of what could
be considered a reasonable amount of time for the completion of that step. More specifically, in
certain instances, I have accepted the time claimed to be necessary by the European Communities, but
have discounted that time for steps that, in my view, could reasonably be completed sooner, bearing in
mind that implementation should occur in the shortest period of time possible within the legal system
of the implementing Member. These overall considera tions guide my determination of the reasonable
period of time.

116Award of the Arbitrator, Canada – Pharmaceutical Patents, para. 51.
117See Award of the Arbitrator, Chile – Price Band System, para. 42:
The absence of a requirement under Chile's laws to engage in pre-legislative
consultations is not sufficient, in my view, to dismiss the relevance of such
consultations for purposes of this Artic le 21.3(c) arbitration. … Although
not mandated by law, consultations within government agencies as well as
with the affected sectors of soci ety are typically a concomitant of
lawmaking in contemporary polities, and such consultations should be taken
into account when fixing a "reasonable period of time" for implementation.
(footnote omitted)
118Award of the Arbitrator, Canada – Pharmaceutical Patents, para. 54; Award of the Arbitrator, EC –
Tariff Preferences, para. 42.
119Award of the Arbitrator, Canada – Patent Term , paras. 63 and 64; Award of the Arbitrator, EC –
Export Subsidies on Sugar, para. 77; Award of the Arbitrator, EC – Tariff Preferences, para. 36.

C. Article 21.2 of the DSU
81. I turn briefly now to Brazil's request that, in determining the reasonable period of time, I pay
"particular attention" to its interests as a devel oping country Member, pursuant to Article 21.2 of the
DSU.
120 In support of this request, Brazil submits evidence relating to market share, revenue,
employment dependent on this industry, and the ro le of this industry in promoting social programs
within Brazil, arguing that adverse impacts on these factors warrant particular attention.121
82. Article 21.2 of the DSU states:
Particular attention should be paid to matters affecting the interests of
developing country Members with respect to measures which have
been subject to dispute settlement.
Brazil has shown to my satisfaction that Brazil's inte rests are indeed affected by the measures of the
European Communities that are the subject of this dispute. Furthermore, Brazil is correct that
Article 21.2, on its face, makes no distinction in cases where developing country Members are
complaining rather than implementing Members in a particular dispute.122 However, as I have already
observed, my determination of the reasonable pe riod of time results from my understanding of the
shortest period of time possible in the Community legal order for implementing the proposed
Commission Regulation amending Additional Note 7 to heading 02.10. 123 Having arrived at the
shortest period of time possible, I consider that the reasonable period of time for implementation is
not additionally affected by the fact that Brazil, as a complaining Member in this dispute, is a
developing country.124

120Brazil's submission, paras. 164-173. Thailand did not request that particular attention be paid to its
interests, even though it also is a developing country Member. (Thailand's response to questioning at the oral
hearing) Accordingly, it advanced no argument, and provided no supporting evidence, in relation to the
instruction contained in Article 21.2 of the DSU.
121See supra, paras. 31-32.
122Award of the Arbitrator, US – Gambling, para. 59; Award of the Arbitrator, EC – Export Subsidies
on Sugar, para. 99.
123Supra, paras. 49 and 80.
124See Award of the Arbitrator, US – Oil Country Tubular Goods Sunset Reviews, para. 52.

IV. The Award
83. As a final point, I recall that the European Communities requests eight months for enacting a
Commission Regulation following a WCO decision, arguing that "[w]ithout a WCO determination
any internal Community procedure will inevitably become more complex." 125 Having concluded that
the European Communities failed to establish the need for recourse to the WCO, I have nevertheless
taken this request for eight months by the Europ ean Communities into account in my award, along
with the other considerations I have already discussed.
84. In the light of the considerations outlined a bove, I determine that the "reasonable period of
time" for the European Communities to implement the recommendations and rulings of the DSB in
this dispute is nine months from 27 September 200 5, which was the date on which the DSB adopted
the Panel and Appellate Body Reports. The reas onable period of time will therefore expire on
27 June 2006.

Signed in the original at Washington, DC this 14th day of February 2006 by:

James Bacchus
Arbitrator

125European Communities' submission, para. 77.