RUSSIA – TARIFF TREATMENT OF CERTAIN AGRICULTURAL AND MANUFACTURING PRODUCTS REPORT OF THE PANEL
Document: Addendum
Date: 12 August 2016
Document codes: WT/DS485/R/Add.1; WT/DS485/R.
Complainant: EU
Respondent: Russia
Third parties: Australia, Brazil, Canada, Chile, China, Colombia, India, Japan, South Korea, Moldova, Norway, Singapore, Ukraine, U.S.
Dispute stage: Panel
Agreements cited: Art. II:1(b), II:1(a)  GATT 1994

RUSSIA – TARIFF TREATMENT OF CERTAIN AGRICULTURAL
AND MANUFACTURING PRODUCTS
REPORT OF THE PANEL
Addendum
This addendum contains Annexes A to D to the Report of the Panel to be found in document

LIST OF ANNEXES
ANNEX A
PRELIMINARY RULING OF THE PANEL
Contents Page
Annex A-1 Preliminary Ruling of the Panel A-2
ANNEX B
WORKING PROCEDURES OF THE PANEL
Contents Page
Annex B-1 Working Procedures of the Panel B-2
Annex B-2 Additional Working Procedures on BCI B-7
ANNEX C
ARGUMENTS OF THE PARTIES
EUROPEAN UNION
Contents Page
Annex C-1 First Part of the integrated executive summary of the arguments of
the European Union
C-2
Annex C-2 Second part of the integrated executive summary of the arguments of the
European Union
C-12
RUSSIAN FEDERATION
Contents Page
Annex C-3 First Part of the integrated executive summary of the arguments of the Russian
Federation
C-20
Annex C-4 Second part of the integrated executive summary of the arguments of the
Russian Federation
C-28
ANNEX D
ARGUMENTS OF THE THIRD PARTIES
Contents Page
Annex D-1 Executive summary of the arguments of Australia D-2
Annex D-2 Executive summary of the arguments of Brazil D-4
Annex D-3 Executive summary of the arguments of Canada D-7
Annex D-4 Executive summary of the arguments of Chile D-10
Annex D-5 Executive summary of the arguments of Colombia D-11
Annex D-6 Executive summary of the arguments of Japan D-13
Annex D-7 Executive summary of the arguments of Norway D-17
Annex D-8 Executive summary of the arguments of Ukraine D-21
Annex D-9 Executive summary of the arguments of United States D-23

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ANNEX A
PRELIMINARY RULING OF THE PANEL
Contents Page
Annex A-1 Preliminary Ruling of the Panel A-2

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ANNEX A-1
PRELIMINARY RULING OF THE PANEL

1 INTRODUCTION
1.1. On 24 August 2015, the Russian Federation ("Russia") submitted to the Panel a request for a
preliminary ruling (referred to in this document as the "preliminary ruling request") concerning the
consistency of the European Union's request for the establishment of a panel (WT/DS485/6) with
Article 6.2 of the Understanding on Rules and Procedures Governing the Settlement of Disputes
("DSU") (referred to in this document as the "panel request").
1.2. Russia's preliminary ruling request raises six main issues. As explained in more detail below,
these concern whether the panel request identifies the specific measures at issue; whether the
panel request fails to provide the legal basis of the European Union's complaint; whether the panel
request expands the scope of the dispute; whether the panel request fails to establish a prima
facie case in respect of the challenged measures; whether the panel request purports to challenge
a measure that does not exist; and whether amendments to the challenged measures fall within
the Panel's terms of reference.
1.3. Article 6.2 provides as follows:
The request for the establishment of a panel shall be in writing. It shall indicate
whether consultations were held, identify the specific measures at issue and provide a
brief summary of the legal basis of the complaint sufficient to present the problem
clearly. In case the applicant requests the establishment of a panel with other than
the standard terms of reference, the written request shall include the proposed text of
special terms of reference.
1.4. Russia requested the Panel to hand down a ruling prior to the Panel's first substantive
meeting with the parties. 1 In a communication dated 26 August 2015, the Panel indicated that,
due to the timing of Russia's request and the Panel's need to prepare for the first meeting, it did
not expect to be able to rule on Russia's request prior to the first substantive meeting with the
parties, held on 15 – 16 September 2015. The Panel informed the parties that it intended to
provide further advice on the matter during that meeting.
1.5. On 26 August 2015, the Panel requested the European Union to provide a written response to
Russia's request by 3 September 2015. The European Union filed its response on
3 September 2015.
1.6. At the beginning of the Panel's first substantive meeting with the parties on 15 September
2015, the Panel informed the parties that it would provide its conclusions in respect of Russia's
preliminary ruling request by 18 September 2015.2
1.7. The Panel issued its conclusions on Russia's request to the parties on 18 September 2015. 3
The Panel concluded that the European Union’s panel request was not inconsistent with Article 6.2
and therefore it rejected Russia's claims in this respect. The Panel indicated that it would provide
detailed reasons in support of its conclusions at a later date, but prior to the date of issuance of its
Interim Report. The Panel explained that prior panels had likewise provided detailed reasons only

1 Russia's preliminary ruling request, para. 68.
2 The Panel's decision to issue its conclusions as soon as possible was made in the light of Russia's
request during its opening oral statement that the Panel "make a ruling … as soo n as possible in order to
ensure prompt resolution of the dispute and prevent unnecessary spending of resources of the Panel, the
Secretariat, and the Parties". Russia's opening oral statement at the Panel's first substantive meeting with the
parties, para. 93.
3 The Panel's conclusions were also circulated to third parties, for their information, on
25 September 2015.

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after giving the conclusions in respect of a preliminary ruling request 4, and that it was following
this approach in view of Russia's request that this matter be dealt with as soon as possible, and in
the interests of efficiency.
1.8. The Panel's conclusions as sent to the parties (and the third parties for information) are
reproduced in Annex A to this document. As foreseen in those conclusions, the present document
contains the Panel's detailed reasons for its conclusions on Russia's request. This document, as
well as the conclusions circulated to the parties on 18 September 2015, will become an integral
part of the Panel's Final Report, subject to any changes that may be necessary in light of any
comments that may be received from the parties at the interim review stage.
1.9. In preparing these detailed reasons, the Panel has followed the structure used in its
conclusions. Consequently, reasons are given in support of six separate conclusions. Where the
conclusions were sub-divided, this document explains the Panel's detailed reasoning in respect of
each sub-issue.
2 ISSUE 1: WHETHER THE EUROPEAN UNION'S PANEL REQUEST FAILS TO IDENTIFY THE
SPECIFIC MEASURES AT ISSUE
2.1. Issue 1 comprises three independent claims. Specifically, according to Russia, the European
Union's panel request fails to identify the specific measures at issue by:
a. referring to measures concerning "a number of goods" (paragraph 5), "certain other
goods" (paragraph 7), and "a significant number of tariff lines" (paragraph 11);
b. not indicating that any measures are being challenged "as such"; and
c. not indicating that the lack of a ceiling mechanism is a challenged measure.
2.1 Issue 1(a)
2.2. As noted above, the essence of Russia's first claim is that the panel request does not meet
the requirements of Article 6.2 because its references to measures concerning "a number of
goods" (paragraph 5) 5, "certain other goods" (paragraph 7) 6, and "a significant number of tariff
lines" (paragraph 11)7 fail to identify the specific measures at issue.
2.3. Russia argues that a panel request must identify one or more challenged measures with
"sufficient particularity, so as to indicate the nature of the measure and the gist of what is at
issue".
8 According to Russia, the European Union's panel request fails to meet this requirement
insofar as it contains "vague[] and imprecis[e]" 9 references to "certain goods" (in paragraph 5),
"certain other goods" (in paragraph 7), and a "significant number of tariff lines" (in paragraph 11).
Although Russia accepts that at least challenged measures 1 – 5 and 7 – 11 are sufficiently

4 See, for example, Panel Reports, Canada – Certain Measures Affecting the Renewable Energy
Generation Sector / Canada – Measures Relating to the Feed-in Tariff Program , WT/DS412/R and Add.1 /
WT/DS426/R and Add.1, adopted 24 May 2013, as modified by Appellate Body Reports WT/DS412/AB/R /
WT/DS426/AB/R, para. 7.8; and United States – Definitive Safeguard Measures on Imports of Fresh, Chilled or
Frozen Lamb Meat from New Zealand and Australia , WT/DS177/R, WT/DS178/R, adopted 16 May 2001,
paras. 5.15-5.16.
5 Paragraph 5 reads in relevant part: "Russia subjects a number of goods to import duties inconsistent
with its Schedule of Concessions and Commitments annexed to the GATT 1994".
6 Paragraph 7 reads in relevant part: "[F]or certain other goods (including palm oil and its fractions,
refrigerators and combined refrigerator – freezers), the legal instruments referred to below provide for a
type/structure of duty that varies from the type/structure of duty recorded in the Schedule".
7 Paragraph 11 reads in relevant part: "In addition, it appears that the legal instruments referred to
below systematically provide, in relation to a significant number of tariff lines, for a type/structure of duty that
varies from the type/structure of duty recorded in the Schedule in a way that leads to the application of duties
in excess of those provided for in the Schedule for those goods whenever the customs value is below a certain
level".
8 Russia's preliminary ruling request, para. 7 (citing Appellate Body Report, US – Continued Zeroing,
para. 169.
9 Russia's opening oral statement at the Panel's first substantive meeting with the parties, para. 31.

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identified in the panel request 10, it maintains that paragraphs 5, 7 and 11 of the panel request
challenge additional and distinct measures that are nevertheless insufficiently specified.
2.4. According to Russia, "paragraph 7 [of the European Union's panel request] deals with 'certain
other goods' that are not clearly identified in a manner that would provide certainty as to a
particular measure that the European Union is challenging. … [T]his general statement even being
illustrated by paragraphs 8, 9 and 11 was not crystallized into any particular measure, except for
measures 7-11 that are challenged by the European Union".
11
2.5. Additionally, in respect of paragraph 11 of the European Union's panel request, Russia argues
that "the reference to 'a significant number of tariff lines' is too vague and does not allow for the
identification of specific instruments that the reference aims to cover". 12 In Russia's view, the
European Union's use of this term in the panel request "shifts the obligation to identify a particular
measure onto the Panel", a task that falls outside the scope of the Panel's mandate.
13
2.6. In consequence, Russia requests the Panel to "issue a preliminary ruling that claims made by
the European Union in respect of goods that are not clearly identified in the European Union's
[panel request] by an HS code, in particular paragraphs 5, 7 and 11 … thereof … are outside the
Panel's terms of reference".
14
2.7. The European Union disagrees with the claims made by Russia. In the European Union's view,
its "panel request is fully in line with the requirements of Article 6.2 because it "describes and
enumerates twelve distinct measures at issue, at a level of specificity that goes far beyond the
minimum standards required by the jurisprudence".
15
2.8. In respect of paragraphs 5 and 7 of the panel request, the European Union explains that
"[t]he phrase 'certain goods' in paragraph 6 refers to the paper and paperboard products under
the specific tariff lines detailed in the remainder of that paragraph". In respect of paragraph 7 of
the panel request, the European Union explains that "[t]he phrase 'certain other goods' in
paragraph 7 refers to the various products (palm oil and its fractions, refrigerators and combined
refrigerator-freezers) described in paragraphs 7-10".
16
2.9. Finally, in respect of paragraph 11, the European Union explains that "the phrase 'significant
number of tariff lines' in paragraph 11 refers to the measure described in that paragraph: the
twelfth measure at issue, i.e. the Systematic Duty Variation".
17 According to the European Union,
there is nothing in either Article II of the GATT 1994 or Article 6.2 that would "require
complainants to define measures at issue in terms of individual tariff lines".
18 Insofar as the twelfth
measure at issue challenges a "particular kind of tariff treatment", there is no requirement to
identify a "closed list of individual offending tariff lines".19
2.10. The Panel begins by recalling that the text of Article 6.2 makes clear that a panel request
must, inter alia , identify the specific measure or measures at issue. Measures not properly
identified fall outside a panel's terms of reference 20, and cannot be the subject of panel findings or
recommendations.
2.11. According to the Appellate Body, "the determination of whether a panel request satisfies the
requirements of Articles [sic] 6.2 must be based on an examination of the panel request on its face

10 Russia's preliminary ruling request, para. 14.
11 Russia's preliminary ruling request, para. 8.
12 Russia's preliminary ruling request, para. 10.
13 Russia's preliminary ruling request, para. 10.
14 Russia's preliminary ruling request, para. 14.
15 European Union's reply to Russia's preliminary ruling request, para. 23.
16 European Union's reply to Russia's preliminary ruling request, para. 29. The Panel notes that, in its
response to Panel question No. 1, Russia agrees that "paragraph 7 does not constitute a separate measur e
distinct from measures 7 to 11. It should be treated as a chapeau or introduction to the measures 7 to 11".
17 European Union's reply to Russia's preliminary ruling request, para. 23.
18 European Union's reply to Russia's preliminary ruling request, para. 30.
19 European Union's reply to Russia's preliminary ruling request, para. 30.
20 Appellate Body Reports , Dominican Republic – Import and Sale of Cigarettes , para. 120 and EC and
certain member States – Large Civil Aircraft, para. 790.

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as it existed at the time of its filing". 21 Previous disputes also indicate that "[t]he task of assessing
the sufficiency of a panel request for the purposes of Article 6.2 may be undertaken on a case-by -
case basis, in consideration of the panel request as a whole, and in the light of the attendant
circumstances".22 In respect of the requirement to identify the specific measures at issue, the
Appellate Body has explained that "the measures at issue must be identified with sufficient
precision so that what is referred to adjudication may be discerned from the panel request".
23 A
panel request will satisfy this requirement where it identifies the measure(s) at issue "with
sufficient particularity so as to indicate the nature of the measure and the gist of what is at
issue".
24
2.12. We first turn to examine paragraph 5 of the European Union's panel request. Russia is
correct that that paragraph refers to "a number of goods". However, consistent with the guidance
provided by the Appellate Body, it is important to read paragraph 5 in context, which notably
includes paragraphs 6 to 11. In our view, paragraph 5 constitutes an introductory paragraph that
explains the essence of the European Union's complaint. The specific measures to which that
complaint attaches are elaborated not in paragraph 5, but in the six paragraphs that succeed it.
The terms "Firstly" and "Secondly" at the beginning of paragraphs 6 and 7, as well as the term "In
addition" in paragraph 11, indicate that those paragraphs are intended to flesh out the general
statement provided in paragraph 5. It is clear to us, therefore, that paragraph 5 does not purport
to put forward a claim that concerns a measure or measures distinct from the twelve measures
specifically identified in paragraphs 6 to 11.
25
2.13. We next turn to examine paragraph 7, which refers to "certain other goods". Here again,
this phrase must be read in its context, particularly paragraphs 8 to 10. As we see it, paragraph 7
identifies certain measures at issue only in general terms; the associated tariff lines are provided
in paragraphs 8 and 9, respectively. This is apparent from the opening words "In some of those
instances" and "In certain other instances" in paragraphs 8 and 9. The relevant "instances" are the
"specific variations" that are referred to in paragraph 7. Therefore, paragraph 7 in our view does
not purport to identify a challenged measure that is additional to or separate from the seventh to
the eleventh measures that are specifically identified in paragraphs 8 to 10.
2.14. We agree that the European Union's use of the word "including" in paragraph 7, when
considered in isolation, might initially give rise to some uncertainty. However, paragraphs 8 and 9
refer to the seventh to the eleventh measures, and each of these measures relates to a single
tariff line that is identified in paragraph 8 or 9. The products corresponding to these tariff lines are
the same products that are identified in paragraph 7 (i.e. palm oil and its fractions, refrigerators
and combined refrigerator-freezers). In other words, the products enumerated in paragraph 7 are
all accounted for in paragraphs 8 and 9. Moreover, paragraph 11 of the panel request identifies a
measure – the twelfth measure – that is distinct from the seventh to the eleventh measure.
Therefore, even if the word "including" might initially suggest that there could be challenged
measures that relate to products other than those enumerated in paragraph 7, the fact that
paragraphs 8 and 9 refer to all enumerated products and that the panel request provides a
continuous numbering of the measures in our view indicates to us that paragraph 7, interpreted in
the light of its context, encompasses only the seventh to the eleventh measures.
26
2.15. We turn, finally, to paragraph 11 and the reference it contains to a "significant number of
tariff lines". Paragraph 11 identifies the twelfth measure at issue. It is true that this paragraph

21 Appellate Body Report, Argentina – Import Measures, para. 5.48.
22 Panel Report, US – FSC (Article 21.5 – EC II), para. 7.74. See also Appellate Body Reports, Canada –
Wheat Exports and Grain Imports , para. 206 and EC and certain member States – Large Civil Aircraft ,
23 Appellate Body Report, US – Continued Zeroing, para. 168.
24 Appellate Body Report, US – Continued Zeroing, para. 169.
25 Russia, in paragraph 54 of its opening oral statement at the Panel's first substantive meeting with the
parties, asked the Panel to rule that the European Union's claims relating to the first to eleventh measures at
issue are not precise enough. We note that to the extent that this request for a ruling goes beyond the scope
of Russia's preliminary ruling request, paragraph 6 of our Working Procedures, which provides that in the case
of the responding party any request for a preliminary ruling be submitted no later than in its first written
submission, precludes us from considering it.
26 Paragraph 6 of the panel request also enumerates covered products in brackets, but it does not use
the word "including". However, both paragraphs 6 and 7 have corresponding paragraphs in the request for
consultations that use the word "including". It is therefore possible that the word "including" was inadvertently
left in paragraph 7, since that word was removed from the text of paragraph 6.

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does not identify any particular tariff lines. In our view, however, it is important to bear in mind
that the measure identified in paragraph 11 consists in a particular kind of tariff treatment – a
particular type of duty variation – rather than the tariff treatment of any one tariff line. This is
clearly indicated by the European Union's description of the measure as a "general practice" and
the reference to this being "systematically" provided for in the identified legal instruments. In such
circumstances, we do not think that the European Union's failure to identify specific tariff lines
deprives the description of the twelfth measure of the required specificity. Given the nature of the
challenged measure as described by the European Union in its panel request, it does not seem to
us incongruous that the European Union chose to identify no individual tariff lines in paragraph 11.
Paragraph 11 in our view is thus sufficient to provide a description of the twelfth measure that
indicates its nature and the gist of what is at issue.
2.16. We recall in this regard that, according to the Appellate Body, "there may be circumstances
in which a party describes a measure in a more generic way, which nonetheless allows the
measure to be discerned" 27, and "[a]n assessment of whether a complaining party has identified
the specific measures at issue may depend on the particular context in which those measures exist
and operate".28 These statements suggest to us that there is no single way in which a challenged
measure must invariably be identified.
2.17. Moreover, we recall that the requirement imposed by Article 6.2 is to identify the specific
measure at issue, and not the products governed or affected by that measure. 29 Therefore, we
consider that paragraph 11 can be consistent with the requirement to identify the specific measure
at issue, even though it does not identify particular tariff lines. In any event, although not
identifying particular tariff lines, paragraph 11 indicates the ways in which the challenged measure
is alleged to lead to the imposition of customs duties in excess of bound rates, stating that this
occurs "in one of the two ways described above (in relation to the seventh, eighth, ninth, tenth
and eleventh measure at issue)". The phrase "in one of the two ways described above (in relation
to the seventh, eighth, ninth, tenth and eleventh measure at issue)" makes clear that the tariff
lines corresponding to the seventh to eleventh measures are themselves part of the "significant
number of tariff lines" to which the twelfth measure applies. When read together with the
preceding paragraphs, paragraph 11 thus identifies five tariff lines that are subject to the twelfth
measure. Accordingly, the panel request in our view does not leave Russia to guess at the content
o
r nature of the challenged measure. It explains the ways in which the measure works and gives a
number of examples of the tariff lines currently affected by the measure's operation. In our view,
this is sufficient to put Russia on notice of the case it has to answer, and to enable it to begin to
prepare its defence, as well as to inform the third parties of the nature of the measures at issue.30
2.18. Before proceeding, we think it important to recall the Appellate Body's statement that "the
identification of the specific measure at issue, pursuant to Article 6.2, is different from the
demonstration of the existence of such measures". As the Appellate Body has explained
31:
an examination of the specificity of a panel request does not entail substantive
consideration as to what type of measures are susceptible to challenge in WTO dispute
settlement. Such consideration may have to be explored by a panel and the parties
during the panel proceedings, but is not a prerequisite for the establishment of a
panel.
2.19. Accordingly, our finding that the European Union has sufficiently identified the twelfth
measure at issue in its panel request, and that that measure is therefore within our terms of
reference, does not prejudge such questions as whether the twelfth measure as identified in fact

27 Appellate Body Report, US – Zeroing (Japan) (Article 21.5 – Japan), para. 116.
28 Appellate Body Report, EC and certain member States – Large Civil Aircraft, para. 641.
29 Appellate Body Reports, EC – Computer Equipment, para. 67; EC – Chicken Cuts, para. 165. Russia,
in paragraph 12 of its opening oral statement at the Panel's first substantive meeting with the parties, referred
to the Appellate Body's statement at paragraph 103 of its report in Australia – Salmon to the effect that " the
SPS measure at issue in [that] dispute can only be the measure which is actually applied to the product at
issue". This statement relates to a dispute where the products at issue had been explicitly identified by the
complaining party in its panel request and, in our view, does not suggest that a complaining party is required
to identify the products at issue in its panel request.
30 Appellate Body Report, US – Countervailing and Anti-Dumping Measures (China), para. 4.8.
31 Appellate Body Report, US – Continued Zeroing, para. 169

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exists, what is its "precise content" 32, or whether it is a kind of measure that is susceptible to
challenge in WTO dispute settlement proceedings. These are not questions to be answered in a
panel request, but to be explored during the panel proceedings.
2.2 Issue 1(b)
2.20. Russia's second claim is that the panel request does not meet the requirements of
Article 6.2 because it does not indicate that the European Union is challenging any measures "as
such".
2.21. Russia asks the Panel to find that the European Union's claims in respect of measures "as
such" are outside of the Panel's jurisdiction because "[t]here is no mention in European Union's
[panel request] of a measure that contradicts Article II of the GATT 1994 ' as such'".33 According to
Russia, in failing to identify any measures "as such", the European Union has "failed to indicate the
nature of such measure, the gist of what is at issue and a particular provision of the WTO
Agreement which 'measures as such' are not consistent with".34
2.22. The European Union does not accept Russia's position. In its view, Russia's argument is
essentially that the European Union's claims are inconsistent with Article 6.2 simply "because the
panel request did not use the words 'as such'". 35 According to the European Union, "Article 6.2
does not require complainants to utter magic words" 36, and therefore "when raising an ' as such
challenge', a complainant is in no way required to expressly refer to it as an ' as such challenge'".37
Indeed, the European Union notes that the term "as such" is not used in the covered agreements,
but is merely "convenient shorthand for challenges against measures setting forth rules or norms
that have general and prospective application". 38 In the European Union's view, "[i]t is clear that
the European Union is challenging customs duties as provided for in the Common Customs Tariff of
the Eurasian Economic Union ("CCT"), which is obviously a legal instrument of general and
prospective application. There is no suggestion of an 'as applied' challenge anywhere in the panel
request or in the European Union's first written submission".
39
2.23. The Panel begins its analysis by recalling the Appellate Body's exhortation to complaining
parties "to be especially diligent in setting out 'as such' claims in their panel requests as clearly as
possible".40 According to the Appellate Body, "[t]hrough straightforward presentations of 'as such'
claims, panel requests should leave respondent parties in little doubt" as to the nature of the
claims.
41
2.24. Russia is correct that the words "as such" do not appear in the European Union's panel
request. However, in our view, the exhortation to diligently set out "as such" claims does not imply
that the words "as such" must be explicitly included in a panel request every time an "as such"
claim is put forward. Rather, what matters in our view is whether the "as such" nature of the claim
or claims is sufficiently clear from an examination of the panel request as a whole. Indeed, the
Appellate Body has observed that the terms "as such" and "as applied" "neither govern[] the
definition of a measure for the purposes of WTO dispute settlement, nor define[] exhaustively the
types of measures that are susceptible to challenge".
42 The terms were "developed in the
jurisprudence as an analytical tool" 43, and they are in many cases a useful "heuristic device". 44

32 Appellate Body Report, US – Continued Zeroing, para. 169
33 Russia's preliminary ruli ng request, para. 15 (emphasis original); see also Russia's opening oral
statement at the Panel's first substantive meeting with the parties, para. 71.
34 Russia's preliminary ruling request, para. 19 (emphasis original)
35 European Union's reply to Russia's preliminary ruling request, para. 39.
36 European Union's reply to Russia's preliminary ruling request, para. 40.
37 European Union's reply to Russia's preliminary ruling request, para. 41 (emphasis original).
38 European Union's reply to Russia's preliminar y ruling request, para.40; see also European Union's
answer to Panel question No. 6, paras. 9 and 10.
39 European Union's reply to Russia's preliminary ruling request, para. 42.
40 Appellate Body Report, US – Oil Country Tubular Goods Sunset Review , para. 17 3 (emphasis
original).
41 Appellate Body Report, US – Oil Country Tubular Goods Sunset Review, para. 173.
42 Appellate Body Report, Argentina – Import Measures, para. 5.102.
43 Appellate Body Report, Argentina – Import Measures, para. 5.102.
44 Appellate Body Report, US – Continued Zeroing, para. 179.

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Consequently, we see no basis for concluding that the European Union's panel request is contrary
to Article 6.2 merely because it does not use the words "as such".
2.25. We thus proceed to analyse whether the panel request, read as a whole, makes it
sufficiently clear that the European Union is challenging the specified measures "as such", rather
than as applied. We observe, first, that nowhere does the text of the panel request suggest that
the measure being challenged is one or more discrete instances of the application of a particular
customs duty to a particular import shipment, importer, or exporting country. Rather, the text
indicates that the European Union challenges the customs duties applied by Russia, generally and
prospectively, to particular tariff lines, regardless of the affected import shipment, importer, or
exporting country. Indeed, paragraph 6 refers to " ad valorem duty rates – as provided for in the
legal instruments referred to below – that exceed the ad valorem bound rates", while paragraph 7
says that "the legal instruments referred to below provide for a type/structure of duty that varies
from the type/structure of duty recorded in the Schedule " and results in duties being levied in
excess of those provided for in the Schedule. Additionally, paragraphs 8 and 9 speak of "duties …
imposed in excess of the bound rates in cases where the customs value of the good is below a
certain level" and of Russia "accord[ing] such treatment to ... [specified] tariff lines". In our view,
these phrases cannot be read as re ferring to specific instances of duties being applied in excess of
bound rates. Rather, they clearly identify the customs duties applicable in respect of particular
tariff lines "as such" as the measures at issue.
2.26. Similarly, in respect of the twelfth measure at issue, paragraph 11 speaks generally of a
"type/structure of duty" that is "systematically" applied and that allegedly "leads to the application
of duties in excess of those provided for in the Schedule". Here again this language cannot be read
as referring to specific instances of tariffs being applied in excess of bound rates. Moreover, it
cannot in our view be read as referring to a specific or single instance of the application of the
identified duty "type/structure". The use of the word "systematically" makes clear that it is the
tariff treatment accorded through the use of a particular duty type/structure in itself that is being
challenged, rather than the application of this tariff treatment to any particular tariff line, much
less any particular shipment or import transaction.
2.27. In relation to Issue 1(b), it is important to note that such expressions as "applicable duty
rate", "the applied duty" and "duties applied", all of which are used in the panel request, do not
demonstrate that the European Union is challenging the measures as applied. Rather, these terms,
read in their context, clearly serve to distinguish between the bound rates contained in Russia's
Schedule and the rates actually levied - or applied – by Russia pursuant to the CCT. The European
Union's claim is that the rates actually applied or applicable are in excess of the relevant bound
rates. But this does not alter the fact that the European Union is challenging the applied or
applicable rates "as such", and not in respect of any particular import transaction, importer, or
exporting country.
2.3 Issue 1(c)
2.28. Russia's final claim in respect of specificity is that the panel request, at paragraph 10, fails
to meet the requirements of Article 6.2 because it does not identify the lack of a ceiling
mechanism as a measure at issue.
2.29. According to Russia, although the panel request alleges that "Russia provides for no
mechanism, such as a ceiling on the level of the applied duty", nevertheless "the European Union
does not indicate this statement as a measure challenged in its [panel request]". Additionally, in
Russia's view "the European Union does not indicate a particular provision of the WTO Agreement
that such practice, in the European Union's view, might be inconsistent with".
45 Russia argues that,
despite this, the European Union's statements concerning the ceiling mechanism give the
impression that the European Union is challenging the alleged lack of a ceiling mechanism as a
separate measure.
46 Insofar as this measure was not sufficiently identified in the panel request,

45 Russia's preliminary ruling request, para. 21; see also Russia's opening oral statement at the Panel's
first substantive meeting with the parties, para. 78.
46 Russia's preliminary ruling request, para. 22.

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Russia asks the Panel to find that claims in respect of the "ceiling mechanism" are outside of its
terms of reference.47
2.30. Alternatively, Russia requests the Panel to treat the European Union's statements in respect
of the "ceiling mechanism" as arguments rather than claims.48
2.31. In its response to Russia's preliminary ruling request, the European Union clarifies that
"[t]he fact that Russia does not apply a mechanism such as a 'ceiling' that would prevent duties
from being levied in excess of bound rates is not, in itself, a measure at issue". 49 According to the
European Union, the absence of a "ceiling mechanism" is an element of "the overall design and
structure of the duties at issue that leads to them being levied in excess of bindings"50, but is not a
"separate and distinct measure at issue".51
2.32. In the Panel's view, the European Union's statement that it is not challenging the absence of
a "ceiling mechanism" as a separate and distinct measure confirms what is evident on the face of
paragraph 10 of the panel request itself. Paragraph 10 opens with the phrase "[i]n relation to the
seventh to eleventh measures at issue", thus indicating that the absence of a ceiling mechanism,
to which paragraph 10 refers, relates to these measures, but is not itself a separate measure.
Indeed, we find persuasive the European Union’s argument that the reference to the lack of a
ceiling mechanism is an aspect of the overall design and structure of the duties at issue, or is an
explanation as to how and why some of the challenged measures allegedly lead to the
establishment of duty levels that exceed Russia's bound duty levels.
2.33. In the light of the confirmation provided by the European Union, there is no need for the
Panel to rule on this aspect of Russia's preliminary ruling request.
3 ISSUE 2: WHETHER THE PANEL REQUEST FAILS TO PROVIDE THE LEGAL BASIS OF THE
CLAIM
3.1. Russia alleges that the panel request fails to provide the legal basis of the European Union's
complaint in respect of the twelfth measure because it does not identify the particular Schedule
commitments covered by that claim.
3.2. Russia argues that "in respect of such ' significant number of tariff lines ', the European Union
… also failed to inform the Russian Federation, third parties and the panel on the legal basis of its
complaint".52 In Russia's view, it is not enough to state that a number of tariff lines are
inconsistent with a Member's obligations under Article II. 53 Russia considers that when raising a
claim under Article II, the complaining party should identify the particular commitments made by
the responding party in its Schedule of Concessions as the latter is an integral part of Article II and
the GATT 1994 as a whole.
54 Because the European Union has failed to identify the precise
commitments that the twelfth challenged measure allegedly breaches, the claim, according to
Russia, "is one-sided and lacks legal basis". 55 In Russia's view, the European Union's claim in
respect of the twelfth measure "is merely a statement that ' the whole of the CCT is not in
compliance with the whole GATT 1994'".56
3.3. The European Union rejects Russia's objection. In its view, the panel request describes the
twelfth measure with "a great deal more" specificity than as simply "the whole CCT". 57 Moreover,
"Russia's arguments related to the legal basis are misplaced", because "[t]he legal basis in respect
of the twelfth measure … is the obligation of Members not to apply duties that exceed those
provided for in its Schedule, as Articles II:1(a) and II:1(b) require. This is clearly indicated in the

47 Russia's preliminary ruling request, para. 23.
48 Russia's preliminary ruling request, para. 24.
49 European Union's reply to Russia's preliminary ruling request, para. 46.
50 European Union's reply to Russia's preliminary ruling request, para. 46.
51 European Union's reply to Russia's preliminary ruling request, para. 47.
52 Russia's preliminary ruling request, para. 12.
53 Russia's preliminary ruling request, para. 12.
54 Russia's preliminary ruling request, para. 12; see also Russia's opening oral statement at the Panel's
first substantive meeting with the parties, para. 21 and Russia's response to Panel question No. 2.
55 Russia's preliminary ruling request, para. 12.
56 Russia's preliminary ruling request, para. 12 (emphasis original).
57 European Union's reply to Russia's preliminary ruling request, para. 35.

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Panel request".58 In the view of the European Union, "[i]t is unclear why Russia thinks 'the whole
GATT 1994' is the legal basis of this complaint".59
3.4. Additionally, in its opening oral statement at the Panel's first substantive meeting with the
parties, the European Union argued that Article II does not require challenges to be "addressed
against individual tariff lines". Rather, according to the European Union, challenges may be
"addressed at groups of products defined in terms of their characteristics, or at particular kinds of
tariff treatment addressed to a broad group of products".
60
3.5. The Panel begins by recalling that pursuant to Article 6.2, in addition to identifying the
specific measures at issue, a panel request must "provide a brief summary of the legal basis of the
complaint sufficient to present the problem clearly".
3.6. According to the Appellate Body, "Article 6.2 of the DSU calls for sufficient clarity with respect
to the legal basis of the complaint … [because a] defending party is entitled to know what case it
has to answer, and what violations have been alleged so that it can begin preparing its defence". 61
More specifically, the legal basis of a claim must be set out in a way that is "sufficient to present
the problem clearly".
62 In this connection, the Appellate Body has explained that63:
in order for a panel request to 'present the problem clearly', it must plainly connect
the challenged measure(s) with the provision(s) of the covered agreements claimed to
have been infringed, so that the respondent party is aware of the basis for the alleged
nullification or impairment of the complaining party’s benefits. Only by such
connection between the measure(s) and the relevant provision(s) can a respondent
'know what case it has to answer, and … begin preparing its defence'.
3.7. In our view, the panel request at issue does provide a brief summary of the legal basis of the
European Union's complaint that satisfies this requirement of Article 6.2. The request identifies the
twelfth measure as being a "general practice", and it "plainly connects" that measure to the WTO
provision with which it is claimed to be inconsistent, i.e. Article II:1 of the GATT 1994. In
particular, paragraph 11 of the panel request uses language that mirrors Article II:1(b) of the
GATT 1994 when it states that the twelfth measure "leads to the application of duties in excess of
those provided for in the Schedule … in one of the two ways described above". Moreover,
paragraph 14 of the panel request explicitly states that "each of these measures is inconsistent
with … Article II:1(a) and (b)", because Russia has failed to exempt products from other WTO
Members "from ordinary customs duties in excess of those set forth and provided in the Russian
Federation's Schedule". The expression "each of these measures" clearly includes the twelfth
measure identified in paragraph 11.
3.8. Additionally, we recall that the twelfth measure at issue consists in a "general practice" (a
particular kind of tariff treatment) rather than the tariff treatment accorded to one or other
particular tariff line. In contrast, the first to eleventh measures are tariff-line-specific, that is to
say, each of these measures concerns one specific tariff line. For those measures, specification of
the tariff lines serves to identify the specific measures at issue. Given this significant difference
between the first eleven and the twelfth measures, we are of the view that it was not necessary
for the European Union to identify in its panel request any tariff lines affected by the twelfth
measure. It is the general practice (a particular kind of tariff treatment) that is being challenged,
and not any particular instance of application of that practice to a particular tariff line. Thus it is
the legal basis of the claim against the general practice that must be provided in the panel
request. In our view, paragraph 11 indicates that the legal basis of the claim is Article II:1. It also
presents the problem sufficiently clearly by indicating how, in the absence of a ceiling mechanism,
the challenged kind of tariff treatment in either of two ways described in paragraphs 8 and 9 and
in certain situations and in relation to a significant number of tariff lines allegedly leads to the
imposition of duties that are inconsistent with Article II:1.

58 European Union's reply to Russia's preliminary ruling request, para. 35.
59 European Union's reply to Russia's preliminary ruling request, para. 35.
60 European Union's opening oral statement at the Panel's fir st substantive meeting with the parties,
para. 13.
61 Appellate Body Report, Thailand – H-Beams, para. 88.
62 Appellate Body Report, EC – Selected Customs Matters, para. 168.
63 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews, para. 162.

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3.9. We further recall that a panel request needs to set out the legal claims, but not the legal
arguments or factual evidence in support of these claims. 64 In our view, in relation to the twelfth
measure, which concerns a particular kind of tariff treatment that is alleged to affect a significant
number of tariff lines, those tariff lines may be relevant as arguments or evidence in support of the
legal claim concerning the twelfth measure. But their relevance as argument or evidence is not
germane to our inquiry under Article 6.2.
3.10. Finally, we are not aware of any general requirement under Article 6.2 under which a
complaining party must always identify the relevant Schedule commitment, and in particular the
specific tariff line(s), in a panel request when making a claim under Article II:1. In this context, we
find relevant the Appellate Body report in Korea – Various Measures on Beef. That dispute did not
involve a claim under Article II:1, but rather a claim under the Agreement on Agriculture. The
Appellate Body's report contains the following finding
65:
Although the 'commitment levels' in Korea's Schedule and 'Annex 3' of the Agreement
on Agriculture were not explicitly referred to in the panel requests in this dispute, it is
clear that Articles 3 and 6 of the Agreement on Agriculture, which were referred to in
the panel requests, incorporate those terms, either directly through Articles 3.2 and
6.3 … or 'indirectly' … In our view, the commitment levels in Korea's Schedule and the
provisions of Annex 3 were in effect referred to in the complaining parties' panel
requests, and were, therefore, within the Panel's terms of reference.
3.11. Applying the same logic to Article II:1(b), we note that by its terms it incorporates the
responding party's Schedule as well as "[t]he products described in Part I of the Schedule relating
to any contracting party" and the associated bound tariff rates. We therefore consider that the
tariff lines affected by the twelfth measure and the corresponding bound tariff rates are not
outside our terms of reference merely because they have not been individually identified in
paragraph 11.
3.12. For the reasons set out above, we conclude that the panel request does not fail to provide a
brief summary of the legal basis of the claim sufficient to present the problem clearly. Accordingly,
we deny this aspect of Russia's preliminary ruling request.
4 ISSUE 3: WHETHER THE PANEL REQUEST HAS EXPANDED THE SCOPE OF THE DISPUTE
4.1. Issue 3 comprises three independent claims. Specifically, according to Russia, the European
Union's panel request, when compared with its request for consultations, has impermissibly
expanded the scope of the dispute by identifying as measures at issue:
a. the sixth measure concerning tariff line 4810 92 100 0;
b. the lack of a ceiling mechanism; and
c. the twelfth measure concerning a "significant number of tariff lines".
4.1 Issue 3(a)
4.2. Russia's first claim in this respect is that the European Union has expanded the scope of the
dispute by identifying in the panel request the sixth measure concerning tariff line 4810 92 100 0
as a measure at issue.
4.3. Russia argues that this tariff line was not included in the European Union's request for
consultations, and that its addition in the panel request "cannot 'reasonably said to have evolved'
from the consultations".
66 In the first place, Russia notes that "[t]he European Union was fully
aware of the applied tariff line 4810 92 100 0 at the time of its request for consultations". 67 In the
second place, Russia argues that paragraph 2 of the European Union's consultations request refers

64 Appellate Body Report, EC – Bananas III, para. 141.
65 Appellate Body Report, Korea – Various Measures on Beef, para. 87 (emphasis original).
66 Russia's preliminary ruling request, para. 32.
67 Russia's preliminary ruling request, para. 32.

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"only [to] duties the Russian Federation 'subjects' or 'applies'". 68 The consultations request also
contains the terms "applied" (in paragraph 3) and "being levied in excess" (in paragraph 4). 69 In
Russia's view, these terms circumscribe the temporal scope of the measures "envisaged" 70 by the
consultations request, and have the effect of "excluding any future or potential measures". 71
Russia notes that "the European Union clearly confirms that the measure applied in respect o f
4810 92 100 0 does not result in duties being levied in excess to those provided in the Schedule
CLXV"72, and thus concludes that "the sixth measure provided for in paragraph 6 of the European
Union's [panel request] goes beyond the request for consultations" 73 and "falls outside of the
Panel's terms of reference" 74 because it relates to a measure that did not, at the time of the
request, result in the imposition of duties in excess of the relevant bound rate.
4.4. In the view of the European Union, "[t]he panel request naturally evolved from the process of
consultations by specifying and narrowing, rather than adding to, the European Union's claims".75
4.5. In respect of tariff line 4810 92 100 0, the European Union begins by noting that the five
tariff lines listed in the consultations request (which do not include tariff line 4810 92 100 0) were
provided "only 'by way of example'" 76, and therefore "[t]he European Union's consultation request
is plainly not limited to the tariff lines that are expressly mentioned". 77 Indeed, in the European
Union's view, "Russia's attempt to limit the Panel's terms of reference to those examples would
make the process of consultations meaningless"
78, and is inconsistent with the Appellate Body's
instructions that "precise, exact identity between the consultation and panel requests is not
required".79 The European Union notes that the consultations request "is addressed at particular
kinds of tariff treatment of certain goods", including "paper and paperboard" 80, and recalls that
tariff line 4810 92 100 0 also "refers to paper and paperboard products". 81 Thus, according to the
European Union, "[w]hile this particular 10-digit code was not among the examples mentioned in
the consultations request, it was clearly covered by it".82
4.6. In response to Russia's argument concerning the temporal limitations implied by the
language used in the consultations request, the European Union argues that "[n]othing in Article 4
[of the DSU] required the European Union to specifically 'mention the application in time of
particular measures as a matter that is subject to consultations'". 83 The European Union notes
that, at any rate, "[a]ccording to the CCT as in force when the panel was established, the ad
valorem duty applied to that tariff line – as of 1 January 2016 – exceeds the ad valorem bound
rate".84 Thus, in the European Union's view, "[t]he fact that tariff line 4810 92 100 0, unlike other
examples, is or was subject to a temporary duty of 5% until 31 December 2015 in no way
removes it from the scope of the European Union's consultations request".85
4.7. Finally, the European Union contends that "[w]hether or not the European Union was aware
of the existence of that tariff line at a particular point in time is irrelevant", since the precise
purpose of consultations is "to obtain a deeper understanding of the measure at issue".86
4.8. The Panel begins its analysis by noting that Article 6.2 requires that a Member indicate in its
request for the establishment of a panel "whether consultations were held". However, the DSU
does not explicitly address the issue presented by Russia's preliminary ruling request, which is

68 Russia's preliminary ruling request, para. 33.
69 Russia's preliminary ruling request, para. 33.
70 Russia's preliminary ruling request, para. 31.
71 Russia's preliminary ruling request, para. 33.
72 Russia's preliminary ruling request, para. 34.
73 Russia's preliminary ruling request, para. 37.
74 Russia's preliminary ruling request, para. 38.
75 European Union's reply to Russia's preliminary ruling request, para. 50 (emphasis original).
76 European Union's reply to Russia's preliminary ruling request, para. 52 and 54.
77 European Union's reply to Russia's preliminary ruling request, para. 54.
78 European Union's reply to Russia's preliminary ruling request, para. 54.
79 European Union's reply to Russia's preliminary ruling request, para. 53 (internal citation omitted).
80 European Union's reply to Russia's preliminary ruling request, para. 54
81 European Union's reply to Russia's preliminary ruling request, para. 52.
82 European Union's reply to Russia's preliminary ruling request, para. 55.
83 European Union's reply to Russia's preliminary ruling request, para. 56 (internal citations omitted).
84 European Union's reply to Russia's preliminary ruling request, para. 52.
85 European Union's reply to Russia's preliminary ruling request, para. 56.
86 European Union's reply to Russia's preliminary ruling request, para. 56.

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whether, and to what extent, the scope of a dispute is limited to the measures explicitly referred
to in the request for consultations.87
4.9. We find guidance on this issue in the Appellate Body's jurisprudence. In particular, we note
the Appellate Body's clarification that Article 6.2 does not "require a precise and exact identity
between the specific measures that were the subject of consultations and the specific measures
identified in the request for the establishment of a panel".
88 The Appellate Body has thus cautioned
panels against imposing "too rigid a standard for the 'precise and exact identity' between the
scope of consultations and the request for the establishment of a panel".
89 According to the
Appellate Body, "the requirement under Article 4.4 to identify the measure at issue cannot be too
onerous at this initial step in the proceedings"
90, because "this would substitute the request for
consultations for the panel request" 91, and give undue emphasis to what is "but the first step in
the WTO dispute settlement process".92
4.10. Having said that, the Appellate Body has also made clear that the language used in a
consultations request should "sufficiently alert[]" 93 the responding party to the "nature and object
of the challenge raised by the complainant". 94 In addition, according to the Appellate Body, a
complaining party may not "expand the scope of the dispute" in its panel request. 95 Whether the
inclusion of a measure in a panel request has expanded the scope of a dispute must be determined
"on a case-by-case basis"
96 and "involves scrutinizing the extent to which the identified measure at
issue … ha[s] evolved or changed from the consultations request to the panel request" .97 A
measure identified in a panel request may fall outside a panel's terms of reference if it "is separate
and legally distinct" from the measures identified in the consultations request.
98
4.11. In addition, the Appellate Body has provided guidance on the extent to which the "legal
basis" of a complaint, as distinct from the identified measure(s), must be consistent across a
complaining party's consultations and panel requests. According to the Appellate Body, "it is not
necessary that the provisions [of the covered agreements] referred to in the request for
consultations be identical to those set out in the panel request", provided that the inclusion of any
additional provisions in the panel request "may reasonably be said to have evolved from … the
subject of consultations"
99, and provided also that the addition of new legal claims does not
"change the essence" of the dispute. 100 We note that subsequently the Appellate Body has applied
the "change the essence" test also in cases where the inclusion of addition al measures in a panel
request has been challenged under Article 6.2.101
4.12. With these observations in mind, we now turn to the specific issue raised by Russia. The
question we must answer is whether the language of the European Union's consultations request
encompasses the measure concerning tariff line 4810 92 100 0 – the sixth measure – and was
sufficient to "alert" Russia to the nature and object of the challenge made by the European Union,
or whether the inclusion of the sixth measure in the panel request has impermissibly "expanded
the scope" of the dispute, as Russia claims.
4.13. The relevant language of the consultations request is contained in paragraph 3 of the
request, which provides as follows:

87 We refer to the consultations request because the Appellate Body indicated that in determining the
scope of consultations held in a dispute, panels should look to the text of the consultations request and need
not seek to establish what was actually discussed during any consultations meetings between the parties.
Appellate Body Report, US – Upland Cotton, para. 287.
88 Appellate Body Report, Brazil – Aircraft, para. 132 (emphasis original).
89 Appellate Body Report, US – Upland Cotton, para. 293.
90 Appellate Body Report, Argentina – Import Measures, para. 5.12.
91 Appellate Body Report, US – Upland Cotton, para. 293.
92 Appellate Body Report, US – Upland Cotton, para. 293.
93 Appellate Body Report, US – Zeroing (Japan), para. 95.
94 Appellate Body Report, Argentina – Import Measures, para. 5.12.
95 Appellate Body Report, US – Upland Cotton, para. 293.
96 Appellate Body Reports, US – Shrimp (Thailand) / US – Customs Bond Directive, para. 293.
97 Appellate Body Report, Argentina – Import Measures, para. 5.13.
98 Appellate Body Report, Argentina – Import Measures, para. 5.13.
99 Appellate Body Report, Mexico – Anti-dumping Measures on Rice, para. 138.
100 Appellate Body Report, Mexico – Anti-dumping Measures on Rice, para. 138.
101 Appellate Body Reports, Argentina – Import Measures, para. 5.30; and US – Shrimp (Thailand) / US
– Customs Bond Directive, para. 293.

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Firstly, for certain goods, including paper and paperboard, the applied ad valorem
duty rates – as provided for in the legal instruments referred to below – exceed the ad
valorem bound rates. By way of example, for five tariff lines (4810 22 900 0, 4810 29
300 0, 4810 92 300 0, 4810 13 800 9 and 4810 19 900 0) the applied duty of 15% or
10% clearly exceeds the bound rate which is set at 5%.
4.14. Although the sixth measure concerns tariff line 4810 92 100 0 and this tariff line is not
among the specific tariff lines listed in paragraph 3, the tariff lines that are listed there are listed
"[b]y way of example". This language indicates that paragraph 3 does not purport to enumerate
exhaustively all relevant tariff lines. Moreover, the measures described in paragraph 3 are
identified as those that relate to "certain goods, including paper and paperboard" and that result in
applied ad valorem customs duties that exceed bound ad valorem rates.
4.15. In our view, the language in paragraph 3 is thus sufficient to alert Russia to the fact that the
European Union's challenge relates to applie d ad valorem duty rates for a certain category of
goods that includes paper and paperboard products. The text therefore can "reasonably be read as
establishing a basis from which" the European Union could be expected to "elaborate"
102, including
by referring in its panel request to additional tariff lines from the identified category of paper and
paperboard products. Like the tariff lines that are listed "by way of example" in the consultations
request, tariff line 4810 92 100 0 falls squarely within the tariff lines related to the category of
paper and paperboard products.
103
4.16. As regards the nature and object of the sixth measure as described in the panel request, we
note that it involves a (future) applied ad valorem duty rate that is claimed to exceed the bound
ad valorem rate. Thus, the sixth measure is one more specific instance of a relevant good with an
applied ad valorem rate exceeding the bound ad valorem rate. Also, the sixth measure is provided
for in the same legal instruments referred to in paragraph 6 of the consultations request. We
therefore see no basis for characterizing it as "separate and legally distinct" from the measures
concerning the five tariff lines that are enumerated in paragraph 3.
4.17. Russia argues that the sixth measure could not have been properly included in the panel
request because paragraph 3 of the consultations request refers in the present tense to applied
duty rates that "exceed" the bound rates. In Russia's view, this contrasts with the description of
the sixth measure in paragraph 6 of the panel request, which states that the " currently applicable
duty rate appears to be equal to the bound rate (5%)", but that "the legal instruments referred to
[in the panel request] provide for a duty rate of 15%, and therefore exceeding the bound rate,
applicable as from 1 January 2016".
4.18. We agree with Russia that the European Union's complaint about the sixth measure
concerns, not an applied rate that was – in the words of the panel request – "currently applicable"
when it first requested the establishment of a panel in early 2015, but a future applied rate,
"applicable as from 1 January 2016". To that extent, there undeniably exists a difference between,
on the one hand, the sixth measure and, on the other hand, the first to fifth measures identified in
paragraph 6 of the panel request, all of which concern "currently applicable" applied rates that
exceed bound rates. However, we disagree with Russia that paragraph 3 refers only to applied
rates that exceeded bound rates at the time of the panel request.
4.19. To recall, paragraph 3 states in relevant part that "for certain goods, including paper and
paperboard, the applied ad valorem rates – as provided for in the legal instruments referred to
below – exceed the ad valorem bound rates". As an initial matter, the word "applied" is used in
paragraph 3 to contrast the challenged duty rates with the relevant bound rates in Russia's
Schedule of Concessions. "Applied" in paragraph 3 of the consultations request thus refers to duty
rates provided for in the challenged legal instruments governing the imposition of customs duties
on imports into Russia as opposed to the rates bound in Russia's Schedule.
4.20. Next, we note that paragraph 3 refers, without qualification, to "applied ad valorem rates".
In our view, this language can therefore encompass both current applied rates and future applied
rates found in legal instruments. Whether any future applied rate is at issue depends on what is
"provided for in the legal instruments referred to below". In our view, an instrument that sets forth

102 Appellate Body Report, Argentina – Import Measures, para. 5.28.
103 Tariff line 4810 92 100 0 covers "Multi-ply; each layer bleached".

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certain tariff treatment as of a future date can properly be said to "provide for" that treatment. 104
Indeed, as is elaborated in paragraph 6 of the panel request, the European Union claims that the
legal instruments referred to in both the consultations and the panel requests provide for a future
applied ad valorem rate of 15% that exceeds the bound ad valorem rate.
4.21. In the light of the foregoing, and bearing in mind the Appellate Body jurisprudence referred
to in previous paragraphs, the inclusion in the panel request of the sixth measure in our view has
not "expanded the scope" of the dispute as it was first circumscribed in the consultations request.
Nor do we consider that such inclusion has in any way "changed the essence" of the dispute, given
that the sixth measure, as explained, is simply another alleged instance of relevant paper and
paperboard products with an applied ad valorem duty rate that exceeds the bound ad valorem
duty rate; that it is applicable in the future does not change the essence of the dispute as
circumscribed in paragraph 3. The European Union was entitled and indeed required to definitively
"define and delimit"
105 in its panel request the precise scope of the complaint put forward in
paragraph 3 of the consultations request.
4.2 Issue 3(b)
4.22. Russia's second claim in respect of Issue 3 is that by referring to the absence of a ceiling
mechanism, the European Union's panel request impermissibly expands the scope of the dispute.
4.23. Russia argues that "consultations were not requested in respect of this mechanism" (i.e. the
ceiling mechanism), and submits that the mechanism is "an additional instrument" that is not
covered by the phrases "subject a number of goods to import duties", "application of duties",
"applied duties", or "type/structure and design that result in duties being levied". In Russia's view,
"[t]his new claim cannot be 'reasonably said to have evolved' from the consultations", and as such
it seeks a preliminary ruling that the ceiling mechanism (or the absence thereof) is beyond the
Panel's terms of reference.
106
4.24. Importantly, we note that this aspect of Russia's preliminary ruling request is conditional:
Russia seeks a preliminary ruling on the ceiling mechanism only "in case the Panel would consider
the arguments by the European Union in respect of the use by the Russian Federation of the
mechanism of 'ceiling' and similar to be a separate measure" 107 or "[i]n case the 'ceiling
mechanism' will be declared by the European Union as a separate claim".108
4.25. In its response to Russia's request, the European Union reaffirms that "it is not challenging
the absence of a 'ceiling' or similar mechanism as a separate measure at issue". 109 The European
Union notes, however, that at any rate the absence of a ceiling mechanism is covered by the
consultations request because it is "an important aspect of the structure and design of the duties
identified under the measures at issue", and "[t]he consultation request expressly refers to that
'structure and design' which results in violations of Articles II:1(a) and II:1(b)".
110 Additionally,
according to the European Union, "[t]he issue of the absence of a 'ceiling' or similar mechanism
limiting the level of applied duties is clearly implied when discussing the tariff treatment of
products subject to combined duties and the design and structure of those duties". In the view of
the European Union, the mere fact that that the consultations request did not use the word
"ceiling" cannot lead to the result that the ceiling (or absence thereof) is outside of the Panel's
terms of reference
111, especially when it is recalled that "[c]onsultations requests are not required
to, and indeed cannot be expected to expressly list all individual aspects of a measure's design
that may be relevant at the panel stage".
112

104 The Oxford English Dictionary relevantly defines "provide for" as "[m]ake adequate preparation for (a
possible event)" as well as " ([o]f a law) enable or allow (something to be done)". Oxford English Dictionary
Online (http://www.oxforddictionaries.com/definition/english/provide).
105 Appellate Body Report, Mexico – Corn Syrup (Article 21.5 – US), para. 54.
106 Russia's preliminary ruling request, para. 42; see also Russia's opening oral statement at the Panel's
first substantive meeting with the parties, para. 65.
107 Russia's preliminary ruling request, para. 39.
108 Russia's preliminary ruling request, para. 41.
109 European Union's reply to Russia's preliminary ruling request, para. 60.
110 European Union's reply to Russia's preliminary ruling request, para. 62.
111 European Union's reply to Russia's preliminary ruling request, para. 63.
112 European Union's reply to Russia's preliminary ruling request, para. 62.

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4.26. As noted, the Panel does not consider, nor does the European Union argue, that this
mechanism is a separate measure at issue. Accordingly, and in the light of the conditional nature
of Russia's claim in this respect, we need not, and do not, rule on this aspect of Russia's request.
4.3 Issue 3(c)
4.27. Russia's third claim in respect of the differences between the consultations and panel
requests is that the panel request expands the scope of the dispute by identifying the twelfth
measure as a challenged measure.
4.28. Russia requests the Panel to find that the claims of the European Union in respect of a
"significant number of tariff lines" and the "SDV" (that is, the twelfth measure at issue) were not
included in the consultations request, and therefore fall outside of the Panel's jurisdiction. 113 In
Russia's view, the application (or non-application) by Russia of "particular mechanisms ' that would
prevent the ad valorem equivalents of the applied duties from exceeding the level of the bound
duties'" was not raised in the consultations request. 114 Rather, the consultations request "stated
several claims that the Russian Federation allegedly imposes import duties in excess to the bound
level provided in its Schedule CLXV", but these claims "did not cover the issue of application of
such mechanisms".115
4.29. Russia further argues that the inclusion of this measure in the panel request impermissibly
"changes the subject matter of the claim of the European Union" because it signals that the
dispute "is no longer about the application of duties", it is about the "application of mechanisms
additional to [the] simple establishment of levels of applied duties in a legislative act" and thus is
about administration of duties.
116 Therefore, in Russia's view, "[t]his new claim cannot 'reasonably
be said to have evolved' from the consultations".117
4.30. The European Union begins its response to this aspect of Russia's request by observing that
"Russia's claim in this respect does not actually seem to address the twelfth measure at issue, or
even dispute that this measure was addressed by the consultations request. Rather, it simply
repeats the argument that the absence of a 'ceiling' was not mentioned as a measure at issue in
the consultations request".118 Having made this point, the European Union proceeds to argue that
the twelfth measure is indeed covered by the consultations request. In particular, the European
Union notes that the consultations request specifies two ways in which applied duties exceed
bound rates
119; in the view of the European Union , ”[t]he twelfth measure at issue identified by
the panel request falls squarely within the second 'way' described by the consultation request". 120
Indeed, according to the European Union, the description of the twelfth measure in the panel
request "is … sig nificantly narrowed down in comparison to paragraph 4 of the consultations
request". In particular, the description of the twelfth measure is circumscribed by reference to the
specific types of duty variation described in respect of the seventh to eleventh measures at issue,
and "is further specified by the absence of a mechanism that would prevent the ad valorem
equivalents of the applied duties from exceeding the bound rates".
121 The European Union thus
requests that the Panel reject Russia's claims in this respect.122
4.31. The Panel has already explained at paragraphs 4.9. to 4.11. the legal standard to be applied
when considering this aspect of Russia's preliminary ruling request. The relevant language of the
consultations request is contained in paragraph 4, which provides as follows:
Secondly, for certain other goods, including palm oil and its fractions, refrigerators
and combined refrigerator – freezers, those instruments provide for a type/structure
of duty that varies from the type/structure of duty recorded in the Schedule. The
structure and design of the specific variations at issue result in duties being levied in

113 Russia's preliminary ruling request, para. 48.
114 Russia's preliminary ruling request, para. 46 (emphasis original).
115 Russia's preliminary ruling request, para. 46.
116 Russia's preliminary ruling request, para. 46.
117 Russia's preliminary ruling request, para. 47.
118 European Union's reply to Russia's preliminary ruling request, para. 66.
119 European Union's reply to Russia's preliminary ruling request, paras.70 and 72.
120 European Union's reply to Russia's preliminary ruling request, para. 73.
121 European Union's reply to Russia's preliminary ruling request, para. 73.
122 European Union's reply to Russia's preliminary ruling request, para. 74.

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excess of those provided for in the Schedule for these goods where the customs value
is below a certain level. This concerns for example the following tariff lines: 1511 90
190 2, 1511 90 990 2 (palm oil) and 8418818001, 8418102001, 8418211000
(refrigerators and combined refrigerator – freezers).
4.32. The panel request contains two main paragraphs that, according to the European Union,
originated in paragraph 4 of the consultations request: paragraph 7, which concerns the seventh
to eleventh measures at issue, and paragraph 11, which concerns the twelfth measure. Russia
objects to the inclusion in the panel request of the second of these paragraphs (paragraph 11). It
is useful to set out paragraphs 7 and 11 in full:
Secondly, for certain other goods (including palm oil and its fractions, refrigerators
and combined refrigerator – freezers), the legal instruments referred to below provide
for a type/structure of duty that varies from the type/structure of duty recorded in the
Schedule. The structure and design of those specific variations results in duties being
levied in excess of those provided for in the Schedule for these goods whenever the
customs value is below a certain level.
In addition, it appears that the legal instruments referred to below systematically
provide,
 in relation to a significant number of tariff lines, for a type/structure of duty
that varies from the type/structure of duty recorded in the Schedule in a way that
leads to the application of duties in excess of those provided for in the Schedule for
those goods whenever the customs value is below a certain level, in one of the two
ways described above (in relation to the seventh, eighth, ninth, tenth and eleventh
measure at issue), without providing for a mechanism that would prevent the ad
valorem equivalents of the applied duties from exceeding the level of the bound
duties. This general practice constitutes the twelfth measure at issue.
4.33. We note that paragraph 4 of the consultations request and paragraph 11 of the panel
request use partly identical language. 123 They both make reference to "a type/structure of duty
that varies from the type/structure of duty recorded in the Schedule", and both paragraphs allege
that this type/structure of duty "leads to the application of duties in excess of those provided for in
the Schedule whenever the customs value is below a certain level".
4.34. It is also apparent that there are some textual differences. Paragraph 4 of the consultations
request does not use the phrase "in relation to a significant number of tariff lines" (paragraph 11).
But paragraph 4 explicitly states that the five tariff lines that it identifies are provided as
"example[s]". This should have alerted Russia that the object of the European Union's challenge
was not necessarily limited to those five tariff lines, and that the European Union's challenge could
relate to a "significant number of tariff lines" that went beyond the tariff lines specifically
identified.
4.35. Paragraph 4 also does not include the phrase " the legal instruments referred to […]
systematically provide for a type/structure of duty " (paragraph 11; emphasis added). The phrase
that it uses instead is " those instruments provi de for a type/structure of duty ". This phrase does
not qualify the word "provide", and therefore does not preclude an interpretation of paragraph 4 as
covering also any identified legal instruments that "systematically" provide for the relevant type of
duty.
124
4.36. Additionally, we note that the twelfth measure as described in paragraph 11 of the panel
request appears to be provided for in legal instruments that are not "separate and legally
distinct"
125 from the legal instruments to which paragraph 4 of the consultations request refers.

123 The Appellate Body in Argentina – Import Measures similarly highlighted "a high degree of similarity
in the language and content of the consultations requests and the panel requests". Appellate Body Report,
Argentina – Import Measures, para. 5.26.
124 The Appellate Body in Argentina – Import Measures reasoned along similar lines with regard to the
consultations request in that dispute, stating that "we see nothing in the language of the consultations
request[] that precludes t he identification of a single or 'overarching' … measure in the panel request[]" .
Appellate Body Report, Argentina – Import Measures, para. 5.28.
125 Appellate Body Report, Argentina – Import Measures, para. 5.13.

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4.37. Based on these considerations , it appears to us that the consultations request "may
reasonably be read as establishing a basis from which the complainant[] could legitimately
elaborate [its] description of the measure". 126 In our view, the inclusion in the panel request of
paragraphs 7 and 11, and more particularly the inclusion in paragraph 11 of the words
"systematically" and "in relation to a significant number of tariff lines", constitutes a "permissible
elaboration"
127 that serves to "define and delimit" 128 the scope of the complaint put forward in
paragraph 4 of the consultations request. In taking this view, we also bear in mind the Appellate
Body's admonition that the requirement under Article 4.4 of the DSU that consultations requests
identify the measure at issue "cannot be too onerous at this initial step in the proceedings".
129
4.38. We now turn to the nature and object of the twelfth measure as identified in paragraph 11
of the panel request. We have already observed that paragraph 11 uses terms that are partly
identical to those used in paragraph 4. This is so in particular with regard to the language that
describes the nature and object of the challenge. As we see it, paragraph 4 alerts Russia to the
fact that the European Union is challenging "a type/structure of duty that varies from the
type/structure of duty recorded in the Schedule" in a way that leads to duties being levied in
excess of those provided for in Russia's Schedule. Given the broad and generic language used in
paragraph 4, Russia in our view could "reasonably anticipate"
130 that the challenge would
ultimately be either relatively narrow (and concern only the five tariff lines identified by way of
"example") or substantially broader than this (and concern a significant number or tariff lines131).
4.39. We are cognizant of the structure of the panel request, which distinguishes between the
seventh to eleventh measures (paragraphs 7-10) and the twelfth measure (paragraph 11). 132 This
documents that there is a difference between the two: the seventh to eleventh measures are
specific to individual tariff lines, whereas the twelfth measure relates to a particular type of tariff
treatment (duty variation) that is said to reflect a general practice. This difference, however, is
material under Article 6.2 only if it establishes that paragraph 11 of the panel request has
expanded the scope of the challenge set out in paragraph 4 of the consultations request. We think
it has not, for the following reasons.
4.40. Although paragraph 11 frames the twelfth measure differently from the seventh to eleventh
measures, it remains a challenge to " a type/structure of duty that varies from the type/structure
of duty recorded in the Schedule" in a way that leads , for certain goods other than paper and
paperboard, to duties being levied in excess of those provided for in Russia's Schedule. For this
reason, we consider that the inclusion in the panel request of paragraph 11 has not "expanded the
scope" of the dispute as it was first circumscribed in the consultat ions request. Instead, we view
paragraph 11 as one expression – the other being paragraphs 7 -10 of the panel request – of an
"elaboration"133, "refinement"134 and "reformulation"135 of the challenge set out in paragraph 4 of
the consultations request. As such, paragraph 11 can in our view be considered to have evolved
from the language of paragraph 4 , without, however, expanding the scope of the dispute defined
in the consultations request . We believe that it is precisely to safeguard this possibility of
elaboration, refinement and reformulation that the Appellate Body cautioned against imposing a
requirement of "precise and exact identity" between the challenged measures identified in
consultations and panel requests, respectively.
4.41. We likewise consider that the inclusion in the panel request of paragraph 11 has not
changed the essence of the dispute as defined, inter alia , in paragraph 4 of the consultations
request. As the text of the panel request itself indicates, paragraph 11 in essence sets forth a
challenge to a particular type of tariff treatment (duty variation). In our view, the fact that the

126 Appellate Body Report, Argentina – Import Measures, para. 5.28.
127 Appellate Body Report, Argentina – Import Measures, para. 5.30.
128 Appellate Body Report, Mexico – Corn Syrup (Article 21.5 – US), para. 54.
129 Appellate Body Report, Argentina – Import Measures, para. 5.12.
130 Appellate Body Reports, US – Shrimp (Thailand) / US – Customs Bond Directive, para. 293.
131 It can be inferred from paragraph 3 of the consultations request that the challenge set out in
paragraph 4 does not concern paper and paperboard products, since text of paragraphs 3 and 4 suggests that
there is no overlap between the two in terms of the affected tariff lines.
132 Paragraph 7, which relates to the seventh to eleventh measures, opens with the word "secondly",
whereas paragraph 11, which relates to the twelfth measure, uses the opening phrase "in addition".
133 Appellate Body Report, Argentina – Import Measures, para. 5.29.
134 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice, para. 138.
135 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice, para. 138.

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twelfth measure seeks to challenge this type of duty variation as a general practice rather than as
a tariff-line-specific duty variation (as in the case of the seventh to eleventh measures) does not
alter the essence of the European Union's complaint as set out in the consultations request. In
either situation, the European Union is complaining about one and the same type of duty variation.
4.42. We note Russia's argument that the twelfth measure concerns, not the application of
duties, but the application of ceiling mechanisms and administration of duties. We are unable to
agree with this description of the twelfth measure. As explained at paragraph 2.32. we consider
that paragraph 11 is about the "establishment of levels of applied duties in a legislative act".
136
Even assuming that the absence of a ceiling mechanism could be viewed as raising an issue of
administration of duties, as indicated at paragraph 2.32, the absence of a ceiling mechanism is not
itself a challenged measure.
4.43. In the light of the foregoing , and bearing in mind the Appellate Body jurisprudence referred
to above, we are of the view that the inclusion in the panel request of the twelfth measure has not
"expanded the scope" of the dispute as claimed by Russia.
5 ISSUE 4: WHETHER THE EUROPEAN UNION HAS FAILED TO ESTABLISH A PRIMA
FACIE CASE IN RESPECT OF MEASURES "AS SUCH" AND THE TWELFTH MEASURE
5.1. This issue concerns Russia's allegation that the panel request fails to establish a prima facie
case in respect of the measures at issue. In response to a question from the Panel, Russia has
clarified that this claim relates to the first eleven measures challenged "as such" as well as the
twelfth measure.
137
5.2. Russia argues that "[t]he European Union fails to establish a prima facie case on the
measures mentioned above". 138 Referring to the Appellate Body Report in US – Shrimp II (Viet
Nam), Russia contends that a complaining party cannot simply designate something as a general
practice without explaining what it entails. In Russia's view, the European Union in this dispute has
not described with sufficient clarity the alleged general practice being challenged.139
5.3. Additionally, Russia recalls that the use by a WTO Member of a duty type different from the
type used in that Member's Schedule is not in itself WTO-inconsistent. Rather, in Russia's view,
"[a] complaining Member has to additionally prove that the customs duty collected is in fact in
excess of the bound rate. Moreover, the WTO Member has to show that the customs duty collected
will be in excess of the bound rate every time the duty applies".
140
5.4. In response to a question from the Panel 141, Russia clarified that it is not seeking a ruling
under Article 6.2 that the European Union has failed to make a prima facie case in the panel
request; rather, its argument is that, because the panel request fails to identify these specific
measures at issue, the European Union must be taken a fortiori to have failed to make a prima
facie case. Put another way, Russia's position appears to be that insofar as the European Union
has failed to specify the measures at issue, it cannot possibly make a prima facie case in respect
of those measures.
5.5. In its response to Russia's preliminary ruling request, the European Union argues that
"[w]hether or not a complainant has made a prima facie case is an issue to be addressed by the
Panel when deciding on the merits. It is not an issue the Panel should or even could decide on in a
preliminary ruling".142 In this connection, the European Union notes that the Appellate Body report
in US – Shrimp II (Viet Nam) , cited by Russia, "concerns an appellant's burden of proof in the
context of review under Article 11 of the DSU. It is unrelated to Article 6.2 of the DSU". 143 In the

136 Russia's preliminary ruling request, para. 46.
137 Russia's response to Panel question No. 6.
138 Russian Federation's preliminary ruling request, para. 49.
139 Russia's preliminary ruling request, para. 51. See also Russia's opening oral statement at the Panel's
first substantive meeting with the parties, paras. 72 and 73.
140 Russia's preliminary ruling request, para. 53 (emphasis omitted); see also Russia's opening oral
statement at the Panel's first substantive meeting with the parties, para. 75.
141 Russia's response to Panel question No. 5.
142 European Union's reply to Russia's preliminary ruling request, para. 76 (emphasis original).
143 European Union's reply to Russia's preliminary ruling request, para. 77.

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view of the European Union, the notion that a "complainant is expected to make a prima facie case
already in the panel request" is one that "clearly cannot be accepted". For the European Union, the
sufficiency of a panel request on the one hand and the requirement that a complaining party make
a prima facie case on the other hand "are very different, arise at distinct stages of the proceedings
and should not be conflated". The European Union thus requests the Panel to reject the European
Union's request.
144
5.6. Before concluding its argument on this issue, the European Union also notes three additional
points. First, the European Union argues that "the 'mechanism' of how the measures at issue
(including the twelfth measure) function is described quite clearly both by the panel request and
by its first written submission". Thus, contrary to Russia's claim, "[t]he Systematic Duty Variation
was not simply 'designated as a general practice".
145 Second, the European Union contends that
Russia's argument that a WTO Member must show that a measure challenged under Article II:1 of
the GATT 1994 leads to the application of duties in excess of bound rates in every instance "flies in
the face of the Appellate Body's jurisprudence" (and is at any rate a matter for the merits stage of
the case).146 Finally, the European Union notes that because "all of the measures at issue in this
dispute are challenged 'as such' … Russia's reference to 'measures "as such"' in the context of its
claim on the alleged failure to make a prima facie case is insufficiently clear to enable a meaningful
response".
147
5.7. The Panel begins by recalling that "Article 6.2 requires that the claims, but not the
arguments, must all be specified sufficiently in the request for the establishment of a panel". 148
Thus, "[t]he question of whether a measure falls within a panel's terms of reference is a threshold
issue, distinct from the question of whether the measure is consistent or not with the legal
provision(s) of the covered agreement(s) to which a panel request refers".
149 Additionally, and as
we noted above, the Appellate Body has clarified that "the identification of the specific measures at
issue, pursuant to Article 6.2, is different from the demonstration of the existence of such
measures".
150 Thus, a panel request need not contain "a substantive inquiry as to the existence
and precise content of the measure".151
5.8. As we noted above, Russia has clarified that it is not seeking a finding under Article 6.2 that
the panel request itself does not present a prima facie case in respect of measures "as such" and
the twelfth measure. Rather, Russia's argument appears to be that, because the panel request
fails to sufficiently identify the specific measures at issue, the European Union must be held, on
the merits, to have failed to establish a prima facie case. The logic underpinning this argument
seems to be that insofar as the specific measures at issue have not been sufficiently identified, it is
impossible for the European Union to proceed to make a prima facie case during the panel
proceedings, and the Panel should therefore find, already at this preliminary stage of the
proceedings, that the European Union's relevant claims must fail because its argumentation and
evidence will necessarily fall short of establishing a prima facie case.
5.9. We do not agree with this argument. As the Appellate Body statements quoted above make
clear, the questions whether a panel request meets the requirements of Article 6.2 and whether a
complaining party has made out a prima facie case in support of a claim of violation are legally
distinct. The former relates to a panel's jurisdiction and proper notice of a claim, the latter to the
merits of a claim. While Article 6.2 requires that a panel request adequately identify the specific
measures at issue to enable the responding party to begin preparing its defence
152, the question
whether a complaining party has established a prima facie case relates to the burden of proof
imposed on a complaining party to present "evidence and legal argument"153 during the course of

144 European Union's reply to Russia's preliminary ruling request, para. 78.
145 European Union's reply to Russia's preliminary ruling request, para. 79.
146 European Union's reply to Russia's preliminary ruling request, para. 80.
147 European Union's reply to Russia's preliminary ruling request, para. 81.
148 Appellate Body, EC – Bananas III, para. 143 (emphasis original).
149 Appellate Body Report, EC – Selected Customs Matters, para. 131.
150 Appellate Body Report, US – Continued Zeroing, para. 169.
151 Appellate Body Report, US – Continued Zeroing, para. 169.
152 Appellate Body Report, Thailand – H-Beams, para. 88.
153 Appellate Body Report, US – Gambling, para. 140 (emphasis original).

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the proceedings which, "in the absence of effective refutation by the defending party, requires the
panel, as a matter of law, to rule in favour of the complaining party".154
5.10. If Russia were correct that the panel request fails to identify the specific measures at issue
(and we have already determined that this is not the case), then the Panel would not have
occasion to consider whether the European Union had, in the course of its written and oral
submissions, made a prima facie case. As Russia itself recognizes, a finding that the relevant
measures have not been sufficiently identified would exclude those measures from the Panel's
jurisdiction. In that situation, the Panel could not properly proceed to consider the European
Union's claims on the merits and assess whether the European Union had presented sufficient
evidence and argumentation to establish a prima facie case. In other words, in that scenario the
Panel would lack the authority to make the finding regarding the existence of a prima facie case
that Russia appears to be seeking.
5.11. At any rate, we have already determined that the panel request adequately identifies the
relevant measures at issue. This disposes of Russia's argument that the European Union has failed
or will fail to meet its obligation to establish a prima facie case in respect of the relevant measures
because they have not been sufficiently identified.
6 ISSUE 5: WHETHER, THE PANEL REQUEST ID ENTIFIES A MEASURE T HAT DID NOT
EXIST AT THE TIME OF PANEL ESTABLISHMENT
6.1. Russia alleges that, in respect of the sixth measure concerning tariff line 4810 92 100 0, the
European Union's panel request identifies a measure that did not exist at the time the Panel was
established.
6.2. Russia urges the Panel to find that "[t]he 'measure' in respect of tariff line 4810 92 100 0 is
invented by the European Union and simply does not exist". 155 Russia notes that the European
Union appears to accept that "the duty currently applied [in respect of tariff line 4810 92 100 0] is
the one that is in full conformity with Russia's commitments". 156 Additionally, Russia argues that
the panel request nowhere claims that this measure, which is consistent with the GATT 1994, is
nullifying or impairing benefits accruing to the European Union under the WTO Agreement. 157 In
Russia's view, the consequence of this is that, in respect of this claim, there is "[a]n absence of
the matter to decide upon".158
6.3. Additionally, in Russia's view, the European Union's challenge is based on the "form of the
act rather than the substance of the act". The European Union "reads the level of the duty … in
isolation from the footnote thereto", but in fact "[i]ntroduction of such footnote is one of the
instruments to establish the applied duty rate", and accordingly the rate cannot be read in
isolation from the footnote.159
6.4. Finally, Russia argues that the European Union's claim against the tariff treatment in respect
of tariff line 4810 92 100 0 "boils down to the mere assumption that the Russian Federation might
introduce a level of duty that is not consistent with its WTO obligations in [the] future ".
160
According to Russia, the European Union has "confirm[ed] that the measure is consistent with
Russia's WTO commitments at this point in time"
161, and therefore the claim is "potential and
illusive"162, based on mere "beliefs" about future possibilities.163
6.5. The European Union rejects Russia's arguments on this issue. According to the European
Union, Russia's position is "puzzling" because "both parties seem to agree" that the tariff line in

154 Appellate Body Report, EC – Hormones, para. 104.
155 Russia's preliminary ruling request, para. 54.
156 Russia's opening oral statement at the Panel's first substantive meeting with the parties, para. 60.
157 Russia's preliminary ruling request, para. 62.
158 Russia's preliminary ruling request, para. 57.
159 Russia's preliminary ruling request, para. 58.
160 Russia's preliminary ruling request, para. 60.
161 Russia's preliminary ruling request, para. 58.
162 Russia's preliminary ruling request, para. 61.
163 Russia's preliminary ruling request, para. 60 ; Russia's opening oral statement at the Panel's first
substantive meeting with the parties, para. 60.

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question provides for a WTO-inconsistent duty rate from 1 January 2016164, and that rate is clearly
included in the European Union's identification of the sixth measure at issue. 165 The European
Union notes that the Panel's terms of reference include all identified "measures that are in
existence at the time of the establishment of the panel"166, and also emphasizes that "a mandatory
measure can be brought before a panel, even if such an adopted measure is not yet in force".167 In
the view of the European Union, the sixth measure at issue was undoubtedly "in force at the time
of the establishment of the Panel, even though it only provides for the levying of the higher rate of
duty as of a future date".168
6.6. Additionally, the European Union rejects Russia's allegation that the claim in respect of this
tariff line is unfounded or based on speculation about possible future action. According to the
European Union, in respect of this measure, "[n]o guesswork is necessary: the CCT, as in force at
the relevant time, makes it plain and legally binding that the duty will exceed bound rates as of 1
January 2016".
169
6.7. The Panel recalls once again the Appellate Body's statement in US – Continued Zeroing that
"the identification of the specific measures at issue, pursuant to Article 6.2, is different from a
demonstration of the existence of such measures". 170 We agree with Russia that it is necessary to
demonstrate that a challenged measure exists; otherwise, a complaining party could not be found
to have made a prima facie case in support of its claim. However, as also noted above, such
demonstration is to be made in the complaining party's written submissions and at a panel's
meetings with the parties. 171 A complaining party is not required to establish the existence of a
specific measure at issue in its panel request.
6.8. We also consider that a factually incorrect description of a measure in a panel request does
not in itself prevent it from being treated as a specific measure at issue within the meaning of
Article 6.2. A panel request needs to "indicate the nature of the challenged measure and the gist of
what is at issue".
172 If the complaining party has described a specific measure incorrectly, this may
be addressed during written and oral argument and it may or may not lead to a failure on the part
of the complaining party to prove its case. This will depend on the nature of the error and the
particular circumstances of the dispute.
6.9. In respect of the sixth measure at issue concerning tariff line 4810 92 100 0 , it is therefore
clear to us that the European Union does not need to establish in paragraph 6 of its panel request
that this measure existed on the date of panel establishment. Nor does paragraph 6 necessarily
need to reflect an accurate description of the measure for it to be properly identified in a pane l
request as a challenged measure. Equally, the issue whether or not the measure in question was
consistent or inconsistent with Article II:1 on the date of establishment is to be assessed by the
Panel on the basis, not of the information provided in the p anel request, but the written
submissions and oral statements made by the parties in the course of the panel proceedings.
6.10. In any event, we also observe that paragraph 6 suggests that, on the date of establishment
of the Panel, relevant legal instruments already "provide[d] for" a duty rate (15%) that would be
applicable from 1 January 2016, which rate is said to be in excess of the bound rate. Thus, the
text of paragraph 6 does not support Russia's argument that the European Union has identified in
its panel request a measure that was not in existence when the Panel was established. The text
only suggests that the 15% rate was not yet being applied at the time, and not that the rule
providing for the 15% rate was not yet in force . We therefore do not agree with Russia that
p
aragraph 6 by its terms refers to a measure that was "simply not in existence" on the date of the

164 European Union's reply to Russia's preliminary ruling request, para. 83.
165 European Union's reply to Russia's preliminary ruling request, para. 84; see also European Union's
opening oral statement at the Panel's first substantive meeting with the parties, para. 15.
166 European Union's reply to Russia's preliminary ruling request, para. 85 (citing Appellate Body Report,
EC – Chicken Cuts, para. 156).
167 European Union's reply to Russia's preliminary ruling request, para. 85 (citing Panel Report,
168 European Union's reply to Russia's preliminary ruling request, para. 85.
169 European Union's reply to Russia's preliminary ruling request, para. 87.
170 Appellate Body Report, US – Continued Zeroing, para. 169.
171 Appellate Body Report, US – Continued Zeroing, para. 169.
172 Appellate Body Report, US – Continued Zeroing, para. 169.

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Panel's establishment or that the relevant claim set out in paragraph 6 is based on mere "beliefs"
about future possibilities.173
6.11. Regarding Russia's allegation that the European Union is complaining about a rate of duty
that was not yet being applied when the Panel was established, we note that paragraph 6 appears
to suggest that the rate in question is required to be imposed by the relevant legal instruments.
We observe in this respect that, as a general rule, a "mandatory measure can be brought before a
panel, even if such an adopted measure is not yet in effect".
174 Although the Appellate Body has
cautioned panels against applying this rule "in a mechanistic fashion", it appears to us that the
general rule remains sound and valid. We therefore consider that a measure that requires
allegedly WTO-inconsistent treatment only in the future, relative to the date of panel
establishment, can properly be identified in a panel request as a specific measure at issue within
the meaning of Article 6.2.
6.12. As a final matter, we note Russia's statement that the panel request does not indicate that
the sixth measure at issue is nullifying or impairing benefits accruing to the European Union under
the GATT 1994. We simply note in this respect that there is nothing in the panel request to
suggest that the European Union is seeking a finding under Article XXIII:1(b) of the GATT 1994.
Moreover, the European Union has not suggested that it is making a so-called "non-violation"
claim.
175
7 ISSUE 6: WHETHER AMENDMENTS TO MEASURES IDENTIFIED IN THE PANEL REQUEST
ARE WITHIN THE PANEL'S TERMS OF REFERENCE
7.1. This issue concerns the question whether amendments made to the challenged measures
subsequent to the Panel's establishment are within the Panel's terms of reference.
7.2. Russia asks the Panel to find that its "terms of reference include such amendments" as may
have been made to the measures at issue since the time of the Panel's establishment. 176 In
particular, Russia requests the Panel to "decide on the measures of the Russian Federation, in
particular, though not exclusively, in respect of palm oil and freezers, as they are actually applied
during the course of these proceedings". In Russia's view, considering these amendments will
secure a positive solution to this dispute.177
7.3. In support of this request, Russia first notes that paragraph 13 of the panel request "covers
any amendments, replacements, extensions, implementing measures or other related measures"
adopted by Russia or the Eurasian Economic Community.
178 Additionally, Russia recalls the
Appellate Body's statement in Chile – Price Band System that, in some circumstances, and in order
to avoid a complaining party having to "deal with a disputed measure as a 'moving target'", a
panel's terms of reference may be "broad enough to include amendments to a measure".
179 On
these bases, Russia argues that considering the challenged measures in light of any amendments
will not only secure a positive solution to the dispute, but will also "be in compliance with …
requirements set out in the said Appellate Body Report", that is, the report in Chile – Price Band
System.
180
7.4. The European Union agrees with Russia that "amendments to the various legal instruments
covered by the panel request fall within the Panel's terms of reference", and agrees also that a

173 Russia, in paragraph 56 of its opening oral statement at the Panel's first substantive meeting with
the parties, referred to the statement by the Appellate Body, at paragraph 103 of its report in Australia –
Salmon, that "the SPS measure at issue in [that] dispute can only be the measure which is actually applied to
the product at issue". In our view, this statement relates to the product scope of a measure at issue, and not
the temporal scope. In any event, the sixth measure, which provides for the 15% rate, in our view is a
measure that was actually applied to the tariff line in question on the date of panel establishment.
174 See, for example, Panel Report, Argentina – Textiles and Apparel, para. 6.45; GATT Panel Report, US
– Superfund, para. 5.2.2.
175 The Panel notes that this is confirmed in the European Union's response to Panel question No. 61.
176 Russia's preliminary ruling request, para. 66.
177 Russia's preliminary ruling request, para. 66.
178 Russia's preliminary ruling request, para. 64.
179 Russia's preliminary ruling request, para. 65.
180 Russia's preliminary ruling request, para. 66.

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responding party should not be able to turn its measures into a "moving target". 181 In the view of
the European Union, amendments that increase the applicable duty rate as well as those that
decrease it are included in the Panel's terms of reference. 182 The European Union notes, however,
that even if Russia were able to establish that an amendment has brought one or more of the
challenged duties into conformity with WTO law, "this would not mean that the claims related to
those duties are automatically dispensed with. At a minimum, in such a hypothetical scenario, the
European Union would be entitled to request the Panel to adopt findings concerning the respective
violations of Article II of the GATT".
183
7.5. In the Panel's view, this aspect of Russia's preliminary ruling request does not raise a claim
that the European Union's panel request is inconsistent with Article 6.2. Indeed, Russia does not
seek a ruling that any particular measure or measures identified in the panel request are outside
the Panel's terms of reference. To the contrary, Russia encourages the Panel to "decide on the
measures of the Russian Federation … as they actually applied during the c ourse of the
proceedings"184, by taking into account amendments that are not explicitly identified in the panel
request other than through the general reference in paragraph 13 thereof, and that did not exist
on the date of establishment of the Panel. This request raises issues that can be dealt with only at
the merits stage of the proceedings, once the parties have addressed the existence, content and
operation of the measures identified in the panel request and any amendments thereto.
7.6. In the light of this, we cannot, and do not, make any findings under Article 6.2 in respect of
this aspect of Russia's request. We nevertheless note that both parties appear to agree that
amendments to the challenged measures come within the Panel's terms of reference. We concu r
that in principle the panel request admits of consideration of amendments introduced subsequent
to the date of establishment of the Panel.

181 European Union's reply to the Russian Federation's preliminary ruling request, para. 89.
182 European Union's reply to the Russian Federation's preliminary ruling request, para. 90.
183 European Union's reply to the Russian Federation's preliminary ruling request, para. 91 (emphasis
original); see also European Union's opening oral statement at the Panel's first substantive meeting with the
parties, paras. 18 and 19.
184 Russian Federation's preliminary ruling request, para. 66.

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ANNEX
COMMUNICATION FROM THE PANEL
PRELIMINARY RULING
(CONCLUSIONS)

18 September 2015

7.7. Having carefully considered the Russian Federation's request of 24 August 2015 for a
preliminary ruling pursuant to Article 6.2 of the DSU, the European Union's reply of 3 September
2015, the parties' oral statements and responses to the Panel's questions of 15 and 16 September
2015, and the third parties' written submissions of 2 September 2015 and oral statements of 16
September 2015, and noting the Russian Federation's request that the Panel rule before the date
of the first substantive meeting of the Panel (which was not feasible), the Panel has decided to
communicate its conclusions on the Russian Federation's request today, as early as possible
following its first substantive meeting. More detailed reasons in support of these conclusions will
be provided as soon as possible and prior to the date of issuance of the Interim Panel Report. This
approach, which has been followed before
185, is taken in the interest of efficiency of proceedings.
7.8. This Ruling, together with the more detailed reasons supporting it, will become an integral
part of the Panel's Final Report, subject to any changes that may be necessary in the light of
comments received from the parties at the interim review stage.
7.9. A copy of this Ruling will be transmitted to the third parties for information.
Issue 1 – Whether the European Union's request for establishment of a panel ("panel
request") fails to identify the specific measures at issue by:
(a) referring to measures concerning "a number of goods" (paragraph 5), "certain
other goods" (paragraph 7) and a "significant number of tariff lines" (paragraph
11);
(b) not indicating that any measures are being challenged "as such"; and
(c) not indicating that the lack of a ceiling mechanism is a challenged measure

7.10. In respect of Issue 1(a) (measures concerning "a number of goods", "certain goods" and a
"significant number of tariff lines"), the Panel finds as follows:
a. Paragraph 5 of the panel request, read in the light of the panel request as a whole, does
not seek to identify any specific measures that are distinct from the twelve measures
identified elsewhere in the panel request. In other words, paragraph 5 should not be
read as identifying any challenged measures distinct from those identified elsewhere in
the panel request. The Panel therefore rejects the preliminary objection concerning this
paragraph.
b. Paragraph 7 of the panel request, read together with paragraphs 8-10 of the panel
request, does not seek to identify any specific measures that are distinct from the
seventh to the eleventh measures identified at paragraphs 8 and 9 of the panel request.
Thus, paragraph 7 should not be read as identifying any challenged measures distinct
from those identified at paragraphs 8 and 9 of the panel request. The Panel therefore
rejects the preliminary objection concerning this paragraph.
c. Paragraph 11 of the panel request adequately identifies the nature of the specific
measure at issue – the twelfth measure – and the gist of what is at issue. The Panel
therefore rejects the Russian Federation's claim that this measure is outside its terms of
reference because it has not been adequately identified.

185 See e.g. Panel Reports, Canada – Certain Measures Affecting the Renewable Energy Generation
Sector / Canada – Measures Relating to the Feed-in Tariff Program, WT/DS412/R and Add.1 / WT/DS426/R and
Add.1, adopted 24 May 2013, as modified by Appellate Body Reports WT/DS412/AB/R / WT/DS426/AB/R, para.
7.8; and United States – Definitive Safeguard Measures on Imports of Fresh, Chilled or Frozen Lamb Meat from
New Zealand and Australia, WT/DS177/R, WT/DS178/R, adopted 16 May 2001, paras. 5.15-5.16.

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7.11. In respect of Issue 1(b) (measures "as such"), the Panel finds that although the term "as
such" does not appear in the panel request, it is evident on a plain reading of the panel request
that the measures referred to by the Russian Federation and identified by the European Union at
paragraphs 49, 53, 122-125 and 140 of the European Union's first written submission are being
challenged "as such". The Panel therefore rejects the Russian Federation's claim that these
measures are outside its terms of reference because they have not been adequately identified.
7.12. In respect of Issue 1(c) (lack of a ceiling mechanism), the Panel agrees with the Russian
Federation that paragraph 10 of the panel request, read together with paragraphs 7-9, does not
identify the lack of a ceiling mechanism as a separate "measure at issue" within the meaning of
Article 6.2. However, the European Union has confirmed in its reply to the Russian Federation's
preliminary ruling request that the lack of a ceiling mechanism is not a specific measure at issue.
In the light of this confirmation, there is no need for the Panel to rule on this preliminary objection.
Issue 2 – Whether the panel request fails to adequately inform the Russian Federation
and the third parties about the legal basis of the claim in respect of the twelfth measure
because it does not identify the particular commitments covered by that claim

7.13. In respect of whether the panel request fails to adequately inform the Russian Federation
and the third parties about the legal basis of the European Union's claim in respect of the twelfth
measure, the Panel observes that the claim at issue here concerns a general practice rather than
individual tariff lines. The Panel does not consider that in such circumstances, specific identification
of commitments is always required. Moreover, paragraph 11 of the panel request plainly connects
the twelfth measure with the provision with which it is claimed to be inconsistent, thus allowing
the Russian Federation to begin to prepare its defence. The Panel therefore rejects the Russian
Federation's claim that the European Union's claim in respect of the twelfth measure is outside its
terms of reference because it does not provide a brief summary of the legal basis sufficient to
present the problem clearly.
Issue 3 – Whether the panel request has expanded the scope of the dispute by
including:
(a) the sixth measure concerning tariff line 4810 92 100 0;
(b) the lack of a ceiling mechanism; and
(c) the twelfth measure concerning a "significant number of tariff lines"

7.14. In respect of the sixth measure concerning tariff line 4810 92 100 0, and taking into
account relevant guidance from the Appellate Body, the Panel finds that by including that
measure, the panel request does not expand the scope of the dispute beyond what is stated at
paragraph 3 of the request for consultations. Consistent with paragraph 3, the sixth measure as
described in the panel request provides for applied ad valorem duty rates that exceed the ad
valorem bound rates. The Panel therefore rejects the Russian Federation's claim that this measure
is outside its terms of reference because it expands the scope of the dispute.
7.15. In respect of the lack of a ceiling mechanism, the Panel notes that this request is conditional
on a finding by the Panel that the ceiling mechanism is a "specific measure at issue" within the
meaning of Article 6.2. As the Panel has found that the ceiling mechanism is not a "specific
measure at issue", it need not, and does not, rule on this preliminary objection.
7.16. In respect of the twelfth measure concerning a significant number of tariff lines, and taking
into account relevant guidance from the Appellate Body, the Panel finds that by including that
measure, the panel request does not expand the scope of the dispute beyond what is stated at
paragraph 4 of the request for consultations . Consistent with paragraph 4, the twelfth measure as
described in the panel request concerns a type/structure of duties that varies from the
type/structure of duties recorded in the Schedule. The Panel therefore rejects the Russian
Federation's claim that this measure is outside its terms of reference because it has expanded the
scope of the dispute.
Issue 4 – Whether the European Union has failed to establish a prima facie case in
respect of "measures as such" and the twelfth measure

7.17. In respect of whether the European Union has failed to establish a prima facie case in
relation to measures as such and the twelfth measure, the Panel understands from the Russian

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Federation's response to Panel question No. 5 that it does not advance a claim based on Article 6.2
that the panel request fails to make out a prima facie claim in relation to the aforementioned
measures. The Panel therefore need not, and does not, make a ruling under Article 6.2 in respect
of this issue.
7.18. Moreover, the Panel understands the Russian Federation to argue, in response to Panel
question No. 5, that the European Union must be held to have failed to establish a prima face case
because its panel request does not adequately identify the aforementioned measures. The Panel is
unable to accept this argument. The requirement in Article 6.2 to identify the specific measure at
issue is separate from the requirement to make a prima facie case in support of a claim. The latter
requirement relates to the burden of proof imposed on a complaining party to put forward
adequate legal arguments and evidence during the panel proceedings. In any event, we also note
that if the Panel had determined that the aforementioned measures are not adequately identified
in the panel request, then the issue of whether or not the European Union had made out a prima
facie case regarding those measures would not arise. This is because such a ruling would mean
that the measures would fall outside the panel's terms of reference and hence they would not be
considered at all.
Issue 5 – Whether, in respect of the sixth measure concerning tariff line 4810 92 100 0,
the panel request identifies a measure that did not exist at the time of panel
establishment

7.19. In respect of whether the sixth measure was in existence at the time the Panel was
established, the Panel notes that Article 6.2 does not require a complaining party to demonstrate
that a challenged measure was in existence at the time of panel establishment. Nor does an
inquiry under Article 6.2 require substantive consideration regarding the types of measures
susceptible to challenge.
186 These latter issues are to be raised and addressed during the course of
the panel proceedings. Moreover, the sixth measure as identified in the panel request at issue
provides for a rate of duty of 5%, applicable on the date of panel establishment, and also a rate of
15%, applicable from 1 January 2016. The Panel therefore rejects the Russian Federation's claim
that the sixth measure is outside its terms of reference because it did not exist at the time of
panel establishment.
Issue 6 – Whether amendments to measures identified in the panel request are within
the Panel's terms of reference

7.20. In respect of whether amendments to measures identified in the panel request, including
measures concerning palm oil and freezers, are within the Panel's terms of reference, the Panel
finds that this issue does not constitute a claim that the panel request is inconsistent with Article
6.2. The Panel therefore need not, and does not, make a ruling under Article 6.2 in relation to this
issue. The Panel has, however, taken note of the parties' arguments on this issue.
Overall conclusion
7.21. In the light of the above, none of the objections raised by the Russian Federation in its
preliminary ruling request under Article 6.2 lead the Panel to dismiss from its inquiry any claims or
measures set out in the panel request.

WT/DS350/AB/R, adopted 19 February 2009, para. 169.

- B-1 -

ANNEX B
WORKING PROCEDURES OF THE PANEL
Contents Page
Annex B-1 Working Procedures of the Panel B-2
Annex B-2 Additional Working Procedures on BCI B-7

- B-2 -

 ANNEX B-1
WORKING PROCEDURES OF THE PANEL
Adopted on 3 July 2015

1. In its proceedings, the Panel shall follow the relevant provisions of the Understanding on
Rules and Procedures Governing the Settlement of Disputes (DSU). In addition, the following
Working Procedures shall apply.
General

2. The deliberations of the Panel and the documents submitted to it shall be kept confidential.
Nothing in the DSU or in these Working Procedures shall preclude a party to the dispute (hereafter
"party") from disclosing statements of its own positions to the public. Members shall treat as
confidential information submitted to the Panel by another Member which the submitting Member
has designated as confidential. Where a party submits a confidential version of its written
submissions to the Panel, it shall also, upon request of a Member, provide a non-confidential
summary of the information contained in its submissions that could be disclosed to the public.
3. The Panel shall meet in closed session. The parties, and Members having notified their
interest in the dispute to the Dispute Settlement Body in accordance with Article 10 of the DSU
(hereafter "third parties"), shall be present at the meetings only when invited by the Panel to
appear before it.
4. Each party and third party has the right to determine the composition of its own delegation
when meeting with the Panel. Each party and third party shall have the responsibility for all
members of its own delegation and shall ensure that each member of such delegation acts in
accordance with the DSU and these Working Procedures, particularly with regard to the
confidentiality of the proceedings.
Submissions

5. Before the first substantive meeting of the Panel with the parties, each party shall submit a
written submission in which its presents the facts of the case and its arguments, in accordance
with the timetable adopted by the Panel. Each party shall also submit to the Panel, prior to the
second substantive meeting of the Panel, a written rebuttal, in accordance with the timetable
adopted by the Panel.
6. A party shall submit any request for a preliminary ruling at the earliest possible opportunity
and in any event no later than in its first written submission to the Panel. If the European Union
requests such a ruling, the Russian Federation shall submit its response to the request in its first
written submission. If the Russian Federation requests such a ruling, the European Union shall
submit its response to the request prior to the first substantive meeting of the Panel, at a time to
be determined by the Panel in light of the request. Exceptions to this procedure shall be granted
upon a showing of good cause.
7. Each party shall submit all factual evidence to the Panel no later than during the first
substantive meeting, except with respect to evidence necessary for purposes of rebuttal, answers
to questions or comments on answers provided by the other party. Exceptions to this procedure
shall be granted upon a showing of good cause. Where such exception has been granted, the Panel
shall accord the other party a period of time for comment, as appropriate, on any new factual
evidence submitted after the first substantive meeting.
8. Where the original language of exhibits is not a WTO working language, the submitting party
or third party shall submit a translation into the WTO working language of the submission at the
same time. The Panel may grant reasonable extensions of time for the translation of such exhibits

- B-3 -

upon a showing of good cause. Any objection as to the accuracy of a translation should be raised
promptly in writing, no later than the next filing or meeting (whichever occurs earlier) following
the submission which contains the translation in question. Any objection shall be accompanied by a
detailed explanation of the grounds of objection and an alternative translation.
9. In order to facilitate the work of the Panel, each party and third party is invited to make its
submissions in accordance with the WTO Editorial Guide for Panel Submissions attached as
Annex 1, to the extent that it is practical to do so.
10. To facilitate the maintenance of the record of the dispute and maximize the clarity of
submissions, each party and third party shall sequentially number its exhibits throughout the
course of the dispute. For example, exhibits submitted by the Russian Federation could be
numbered RUS-1, RUS-2, etc. If the last exhibit in connection with the first submission was
numbered RUS-5, the first exhibit of the next submission thus would be numbered RUS-6.
Questions

11. The Panel may at any time pose questions to the parties and third parties, orally or in
writing, including prior to each substantive meeting.
Substantive meetings

12. Each party shall provide to the Panel the list of members of its delegation in advance of each
meeting with the Panel and no later than 5.00 p.m. the previous working day.
13. The first substantive meeting of the Panel with the parties shall be conducted as follows:
a. The Panel shall invite the European Union to make an opening statement to present its
case first. Subsequently, the Panel shall invite the Russian Federation to present its point
of view. Before each party takes the floor, it shall provide the Panel and other
participants at the meeting with a provisional written version of its statement. In the
event that interpretation is needed, each party shall provide additional copies for the
interpreters, through the Panel Secretary. Each party shall make available to the Panel
and the other party the final version of its opening statement as well as its closing
statement, if any, preferably at the end of the meeting, and in any event no later than
5.00 p.m. on the first working day following the meeting.
b. After the conclusion of the statements, the Panel shall give each party the opportunity to
ask each other questions or make comments, through the Panel. Each party shall then
have an opportunity to answer these questions orally. Each party shall send in writing,
within a timeframe to be determined by the Panel, any questions to the other party to
which it wishes to receive a response in writing. Each party shall be invited to respond in
writing to the other party's written questions within a deadline to be determined by the
Panel.
c. The Panel may subsequently pose questions to the parties. Each party shall then have an
opportunity to answer these questions orally. The Panel shall send in writing, within a
timeframe to be determined by it, any questions to the parties to which it wishes to
receive a response in writing. Each party shall be invited to respond in writing to such
questions within a deadline to be determined by the Panel.
d. Once the questioning has concluded, the Panel shall afford each party an opportunity to
present a brief closing statement, with the European Union presenting its statement
first.
14. The second substantive meeting of the Panel with the parties shall be conducted as follows:
a. The Panel shall ask the Russian Federation if it wishes to avail itself of the right to
present its case first. If so, the Panel shall invite the Russian Federation to present its
opening statement, followed by the European Union. If the Russian Federation chooses
not to avail itself of that right, the Panel shall invite the European Union to present its

- B-4 -

opening statement first. Before each party takes the floor, it shall provide the Panel and
other participants at the meeting with a provisional written version of its statement. In
the event that interpretation is needed, each party shall provide additional copies for the
interpreters, through the Panel Secretary. Each party shall make available to the Panel
and the other party the final version of its opening statement as well as its closing
statement, if any, preferably at the end of the meeting, and in any event no later than
5.00 p.m. of the first working day following the meeting.
b. After the conclusion of the statements, the Panel shall give each party the opportunity to
ask each other questions or make comments, through the Panel. Each party shall then
have an opportunity to answer these questions orally. Each party shall send in writing,
within a timeframe to be determined by the Panel, any questions to the other party to
which it wishes to receive a response in writing. Each party shall be invited to respond in
writing to the other party's written questions within a deadline to be determined by the
Panel.
c. The Panel may subsequently pose questions to the parties. Each party shall then have an
opportunity to answer these questions orally. The Panel shall send in writing, within a
timeframe to be determined by it, any questions to the parties to which it wishes to
receive a response in writing. Each party shall be invited to respond in writing to such
questions within a deadline to be determined by the Panel.
d. Once the questioning has concluded, the Panel shall afford each party an opportunity to
present a brief closing statement, with the party that presented its opening statement
first, presenting its closing statement first.
Third parties

15. The Panel shall invite each third party to transmit to the Panel a written submission prior to
the first substantive meeting of the Panel with the parties, in accordance with the timetable
adopted by the Panel.
16. Each third party shall also be invited to present its views orally during a session of this first
substantive meeting, set aside for that purpose. Each third party shall provide to the Panel the list
of members of its delegation in advance of this session and no later than 5.00 p.m. the previous
working day.
17. The third-party session shall be conducted as follows:
a. All third parties may be present during the entirety of this session.
b. The Panel shall first hear the arguments of the third parties in alphabetical order. Third
parties present at the third-party session and intending to present their views orally at
that session, shall provide the Panel, the parties and other third-parties with provisional
written versions of their statements before they take the floor. Third parties shall make
available to the Panel, the parties and other third parties the final versions of their
statements, preferably at the end of the session, and in any event no later than
5.00 p.m. of the first working day following the session.
c. After the third parties have made their statements, the parties may be given the
opportunity, through the Panel, to ask the third parties questions for clarification on any
matter raised in the third parties' submissions or statements. Each party shall send in
writing, within a timeframe to be determined by the Panel, any questions to a third party
to which it wishes to receive a response in writing.
d. The Panel may subsequently pose questions to the third parties. Each third party shall
then have an opportunity to answer these questions orally. The Panel shall send in
writing, within a timeframe to be determined by it, any questions to the third parties to
which it wishes to receive a response in writing. Each third party shall be invited to
respond in writing to such questions within a deadline to be determined by the Panel.

- B-5 -

Descriptive part

18. The description of the arguments of the parties and third parties in the descriptive part of
the Panel report shall consist of executive summaries provided by the parties and third parties,
which shall be annexed as addenda to the report. These executive summaries shall not in any way
serve as a substitute for the submissions of the parties and third parties in the Panel's examination
of the case.
19. Each party shall submit executive summaries of the facts and arguments as presented to
the Panel in its written submissions and oral statements, in accordance with the timetable adopted
by the Panel. These summaries may also include a summary of responses to questions. Each such
executive summary shall not exceed 17 pages. The Panel will not summarize in the descriptive
part of its report, or annex to its report, the parties' responses to questions.
20. Each third party shall submit an executive summary of its arguments as presented in its
written submission and statement in accordance with the timetable adopted by the Panel. This
summary may also include a summary of responses to questions, where relevant. The executive
summary to be provided by each third party shall not exceed 6 pages.
Interim review

21. Following issuance of the interim report, each party may submit a written request to review
precise aspects of the interim report and request a further meeting with the Panel, in accordance
with the timetable adopted by the Panel. The right to request such a meeting shall be exercised no
later than at the time the written request for review is submitted.
22. In the event that no further meeting with the Panel is requested, each party may submit
written comments on the other party's written request for review, in accordance with the timetable
adopted by the Panel. Such comments shall be limited to commenting on the other party's written
request for review.
23. The interim report, as well as the final report prior to its official circulation, shall be kept
strictly confidential and shall not be disclosed.
Service of documents

24. The following procedures regarding service of documents shall apply:
a. Each party and third party shall submit all documents to the Panel by filing them with
the DS Registry (office No. 2047).
b. Each party and third party shall file six paper copies of all documents it submits to the
Panel. Exhibits may be filed in four copies on CD-ROM or DVD and two paper copies.
Executive summaries may be filed in one single paper copy. The DS Registrar shall
stamp the documents with the date and time of the filing. The paper version shall
constitute the official version for the purposes of the record of the dispute.
c. Each party and third party shall also provide an electronic copy of all documents it
submits to the Panel at the same time as the paper versions, preferably in Microsoft
Word format, either on a CD-ROM, a DVD or as an e-mail attachment. If the electronic
copy is provided by e-mail, it should be addressed to DSRegistry@wto.org, with a copy
to ****.****@wto.org
 and ****.****@wto.org. If a CD-ROM or DVD is provided, it
shall be filed with the DS Registry.
d. Each party shall serve any document submitted to the Panel directly on the other party.
Each party shall, in addition, serve on all third parties its written submissions in advance
of the first substantive meeting with the Panel. Each third party shall serve any
document submitted to the Panel directly on the parties and all other third parties. Each
party and third party shall confirm, in writing, that copies have been served as required
at the time it provides each document to the Panel.

- B-6 -

e. Each party and third party shall file its documents with the DS Registry and serve copies
on the other party (and third parties where appropriate) by 5.00 p.m. (Geneva time) on
the due dates established by the Panel. A party or third party may submit its documents
to another party or third party in electronic format only, subject to the recipient party or
third party's prior written approval and provided that the Panel Secretary is notified.
f. The Panel shall provide the parties with an electronic version of the descriptive part the
interim report and the final report, as well as of other documents as appropriate. When
the Panel transmits to the parties or third parties both paper and electronic versions of a
document, the paper version shall constitute the official version for the purposes of the
record of the dispute.
25. The Panel reserves the right to modify these procedures as necessary, after consultation
with the parties.

- B-7 -

ANNEX B-2
ADDITIONAL WORKING PROCEDURES CONCERNING BUSINESS CONFIDENTIAL INFORMATION
Adopted on 3 July 2015

1. These procedures apply to any business confidential information ("BCI") that a party wishes
to submit to the Panel. For the purposes of these procedures, BCI is defined as any information
that has been designated as such by the party submitting the information, that is not available in
the public domain, and the release of which would seriously prejudice an essential interest of the
Member submitting the information.
2. No person may have access to BCI except a member of the Panel or the WTO Secretariat, an
employee of a party or third party, and an outside advisor acting on behalf of a party or third party
for the purposes of this dispute. However, an outside advisor is not permitted access to BCI if that
advisor is an officer or employee of an enterprise engaged in the production, sale, export, or
import of the products at issue or an officer or employee of an association of such enterprises.
3. A party or third party having access to BCI shall treat it as confidential, i.e. shall not disclose
that information other than to those persons authorized to have access to it pursuant to these
procedures. Each party and third party shall have responsibility in this regard for its employees as
well as any outside advisors used for the purposes of this dispute. BCI obtained under these
procedures may be used only for the purpose of providing information and argumentation in this
dispute, including any appeals, compliance or arbitration proceedings, and for no other purpose.
4. The party submitting BCI shall mark the cover and/or first page of the document containing
BCI, and each page of the document, to indicate the presence of such information. The specific
information in question shall be placed between double brackets, as follows: [[xx,xxx.xx]]. The
first page or cover of the document shall state "Contains business confidential information on
pages xxxxxx", and each page of the document shall contain the notice "Contains Business
Confidential Information" at the top of the page. In case of exhibits, the party submitting BCI in
the form of an Exhibit shall mark it as (BCI) next to the exhibit number (e.g. Exhibit EU-1 (BCI)).
Should the party submit specific BCI within a document which is considered to be public, the
specific information in question shall be placed between double brackets, as follows:
[[xx,xxx.xx]]".
5. Any BCI that is submitted in binary-encoded form shall be clearly marked with the
statement "Business Confidential Information" on a label on the storage medium, and clearly
marked with the statement "Business Confidential Information" in the binary-encoded files.
6. In the case of an oral statement containing BCI, the party or third party making such a
statement shall inform the Panel before making it that the statement will contain BCI, and the
Panel will ensure that only persons authorized to have access to BCI pursuant to these procedures
are in the room to hear that statement.
7. If a party considers that information submitted by the other party should have been
designated as BCI and it objects to such submission without BCI designation, it shall forthwith
bring this objection to the attention of the Panel, the other party, and, where relevant, the third
parties. The Panel shall deal with the objection, as appropriate. The same procedure shall be
followed if a party considers that information submitted by the other party with the notice
"Contains Business Confidential Information" should not be designated as BCI. Each party shall act
in good faith and exercise restraint in designating information as BCI. The Panel shall have the
right to intervene in any manner that it deems appropriate, if it is of the view that restraint in the
designation of BCI is not being exercised.
8. The parties, third parties, the Panel, the WTO Secretariat, and any others who have access
to documents containing BCI under the terms of these Additional Working Procedures shall store
all documents containing BCI so as to prevent unauthorized access to such information.

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9. The Panel will not disclose BCI, in its report or in any other way, to persons not authorized
under these procedures to have access to BCI. The Panel may, however, make statements of
conclusion drawn from such information. Before the Panel circulates its final report to the
Members, the Panel will give each party an opportunity to review the report to ensure that it does
not disclose any information that the party has designated as BCI.
10. If (a) pursuant to Article 16.4 of the DSU, the Panel report is adopted by the DSB, or the
DSB decides by consensus not to adopt the Panel report, (b) pursuant to Article 12.12 of the DSU,
the authority for establishment of the Panel lapses, or (c) pursuant to Article 3.6 of the DSU, a
mutually satisfactory solution is notified to the DSB before the Panel completes its task, within a
period to be fixed by the Panel, each party and third party shall return all documents (including
electronic material and photocopies) containing BCI to the party that submitted such documents,
or certify in writing to the Panel and the other party (or the parties, in the case of a third party
returning such documents) that all such documents (including electronic material and photocopies)
have been destroyed, consistent with the party's record-keeping obligations under its domestic
laws. The Panel and the WTO Secretariat shall likewise return all such documents or certify to the
parties that all such documents have been destroyed. The WTO Secretariat shall, however, have
the right to retain one copy of each of the documents containing BCI for the archives of the WTO
or for transmission to the Appellate Body in accordance with paragraph 11 below.
11. If a party formally notifies the DSB of its decision to appeal pursuant to Article 16.4 of the
DSU, the WTO Secretariat will inform the Appellate Body of these procedures and will transmit to
the Appellate Body any BCI governed by these procedures as part of the record, including any
submissions containing information designated as BCI under these working procedures. Such
transmission shall occur separately from the rest of the Panel record, to the extent possible. In
the event of an appeal, the Panel and the WTO Secretariat shall return all documents (including
electronic material and photocopies) containing BCI to the party that submitted such documents,
or certify to the parties that all such documents (including electronic material and photocopies)
have been destroyed, except as otherwise provided above. Following the completion or withdrawal
of an appeal, the parties and third parties shall promptly return all such documents or certify to
the parties that all such documents have been destroyed, taking account of any applicable
procedures adopted by the Appellate Body.

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ANNEX C
ARGUMENTS OF THE PARTIES
EUROPEAN UNION
Contents Page
Annex C-1 First part of the i ntegrated executive summary of the arguments of
the European Union
C-2
Annex C-2 Second part of the executive summary of the arguments of the European Union C-12
RUSSIAN FEDERATION
Contents Page
Annex C-3 First part of the integrated executive summary of the arguments of
the Russian Federation
C-20
Annex C-4 Second part of the executive summary of the arguments of
the Russian Federation
C-28

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ANNEX C-1
FIRST PART OF THE INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS
OF THE EUROPEAN UNION
I. INTRODUCTION
1. In this integrated executive summary, the European Union ("EU") will summarize the facts
and arguments presented to the Panel in its first written submission, its reply to the Russian
Federation's ("Russia") preliminary ruling request, its opening and closing oral statements at the
first substantive meeting and its responses to the Panel's and Russia's questions.
II. PROCEDURE
2. The EU requested consultations with Russia on 31 October 2014, pursuant inter alia to
Articles 1 and 4 of the DSU and Article XXII of the GATT 1994. The consultations took place on 28
November 2014 and failed to settle the dispute. The EU requested the establishment of a panel
on 26 February 2015. The Panel was established on 25 March 2015.
III. FACTUAL BACKGROUND AND THE MEASURES AT ISSUE
3. The Report of the Working Party on the Accession of the Russian Federation ("Working
Party Report"), together with Russia's Schedule, was circulated on 17 November 2011. Russia
acceded to the WTO Agreement on 22 August 2012, on the terms set out in the Protocol on the
Accession of the Russian Federation ("the Protocol"). Annex I to the Protocol is entitled "Schedule
CLXV – The Russian Federation". The Schedule has not been modified since.
4. Russia is a member of the Eurasian Economic Union ("EAEU") and, previously, of the
Customs Union of the Republic of Belarus, Republic of Kazakhstan and the Russian Federation
("CU"). The Treaty on the EAEU, codifying and incorporate previously existing legal acts of the CU,
entered into force on 1 January 2015.
5. The Common Customs Tariff of the CU, also Russia's customs tariff, was approved by
Decision No. 54 of the Board of the Eurasian Economic Commission. Decision No. 112 of the Board
of the Eurasian Economic Commission, which entered into force on 1 January 2015, amended
Decision No. 54 in order to rename the legal act in question to "Common Customs Tariff of the
Eurasian Economic Union" ("CCT").
6. The EU's panel request identified twelve measures at issue. The first eleven relate to the
duties applied to certain specific tariff lines in the CCT:

Measure Tariff line and
product category
(CCT)
Applied duty
(CCT)
Bound duty
(Schedule)
1. 4810 22 900 0 (paper
and paperboard
products)
15% 5%
2. 4810 29 300 0 (paper
and paperboard
products)
10% 5%
3. 4810 92 300 0 (paper
and paperboard
products)
15% 5%
4. 4810 13 800 9 (paper
and paperboard
10% 5%

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Measure Tariff line and
product category
(CCT)
Applied duty
(CCT)
Bound duty
(Schedule)
products)
5. 4810 19 900 0 (paper
and paperboard
products)
10% 5%
6. 4810 92 100 0 (paper
and paperboard
products)
5%, but 15% as of 1
January 2016
5%
7. 1511 90 190 2 (palm
oil and its fractions)
3%, but not less than
0.09 EUR/kg
3%
8. 1511 90 990 2 (palm
oil and its fractions)
3%, but not less than
0.09 EUR/kg
3%
9. 8418 10 200 1
(combined refrigerators
- freezers)
16.7%, but not less
than 0.13 EUR/l
16.7%
10. 8418 10 800 1
(combined refrigerators
- freezers)
16%, but not less than
0.156 EUR/l
16.7%; or 16%, but not
less than 0.156 EUR/l;
whichever is the lower
11. 8418 21 100 0
(refrigerators)
13.3%, but not less
than 0.12 EUR/l
14.7%; or 13.3%, but not
less than 0.12 EUR/l;
whichever is the lower
7. In addition, the EU has identified, as the twelfth measure at issue, the systematic duty
variation that affects a significant and changing number of tariff lines throughout the Schedule and
leads to the imposition of duties in excess of those provided for in the Schedule whenever the
customs value is below a certain level.
8. The measures at issue are implemented through the CCT, as amended inter alia by the
Decisions cited in the panel request.
IV. RUSSIA'S PRELIMINARY RULING REQUEST
9. In its preliminary ruling request of 24 August 2015, Russia claimed that the panel request
fails to identify the specific measures at issue as required by Article 6.2 of the DSU, and that it
impermissibly expands the scope of the dispute in comparison with the consultation request. The
EU has argued that Russia's preliminary ruling request should be considered inadmissible in part
and, in any event, rejected in its entirety.
10. First, Article 6.2 of the DSU does not refer to the identification of the products at issue;
rather, it refers to the identification of the specific measures at issue. The panel request clearly
identifies and enumerates twelve specific measures at issue. The twelfth measure is clearly
identified by the panel request in terms of the particular kind of tariff treatment systematically
accorded to a number of tariff lines. Second, when raising an "as such challenge", a complainant is
in no way required to expressly refer to it as an " as such challenge" in its panel request. Third, the
fact that Russia does not apply a mechanism such as a "ceiling" that would prevent duties from
being levied in excess of bound rates is not, in itself, a measure at issue. It is, however, an aspect
of the structure and design of the measures at issue.
11. As the Appellate Body has stated, "precise, exact identity" between the consultation and
panel requests is not required. The EU's panel request neither expanded the scope nor changed
the essence of the dispute. It naturally evolved from the process of consultations by specifying and
narrowing the EU's claims, including with regard to the sixth measure at issue (which was in force
at the time of the establishment of the Panel, even though it only provides for the levying of the
higher rate of duty as of a future date) and the twelfth measure at issue.

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12. The Panel should reject to rule on Russia's claim that the EU failed to establish a prima
facie case with respect to "measures as such" and the Systematic Duty Variation. Whether a prima
facie case was made is not an issue the Panel can decide on in a preliminary ruling.
13. Turning to the issue of amendments and changes to applied duties, if a measure at issue
existing on the date of the Panel's establishment has ceased to exist during the proceedings, the
panel should: find that there was a measure existing on the date of establishment that was WTO
inconsistent; find that it ceased to exist during the proceedings; and consequently decide not to
make a recommendation. If the measure at issue has been amended so as to aggravate the
inconsistency the panel should: find that there was a measure existing on the date of
establishment that was WTO inconsistent; find that it was amended during the proceedings but
that it remains WTO inconsistent; and consequently make a recommendation that the measure be
brought into conformity.
V. THE LEGAL STANDARD UNDER ARTICLE II:1 OF THE GATT 1994
14. Article II:1 reflects a basic object and purpose of the GATT 1994: preserving the value of
Members' tariff concessions. Article II:1(a) generally prohibits less favourable treatment of imports
than that provided for in a Member's Schedule. Article II:1(b) prohibits a specific kind of practice
that will always be inconsistent with Article II:1(a): the application of ordinary customs duties in
excess of those provided for in the Schedule.
15. Article II of the GATT 1994 protects competitive opportunities of imported products and
not trade flows as such, meaning that a finding of less favourable treatment does not hinge upon
the actual marketplace effects of the contested measure. The term "in excess of", in the related
context of Article III:2 of the GATT 1994, has been interpreted as referring to even the smallest
amount of excess. It is not conditional on a "trade effects" test or qualified by a de minimis
standard. The same approach should be applied under Article II:1(b). The Appellate Body has
made it clear in Argentina – Textiles and Apparel that a violation of Articles II:1(a) and II:1(b) can
result directly from the "structure and design" of an applied duty.
VI. APPLIED AD VALOREM DUTIES IN EXCESS OF BOUND AD VALOREM RATES
16. The first six measures at issue concern applied ad valorem duties applied to paper and
paperboard products that exceed bound ad valorem rates. For five tariff lines (4810 22 900 0,
4810 29 300 0, 4810 92 300 0, 4810 13 800 9 and 4810 19 900 0), the duty imposed by the CCT
is 15% or 10%, whereas the Schedule shows that the bound rate for all five tariff lines is 5%. The
fact that Russia imposes these duties in excess of bound rates is further illustrated by several
customs declarations exhibited by the EU, showing that a duty of 10% was levied under the tariff
lines 4810 19 900 0, 4810 29 300 0 and 4810 13 800 9.
17. Products falling under these five tariff lines are, therefore, subject to ordinary customs
duties in excess of those in Russia's Schedule, in violation of Article II:1(b), and, consequently,
also of Article II:1(a) of the GATT 1994.
18. The sixth measure at issue concerns the tariff line 4810 92 100 0, for which the bound
rate is also 5%. The CCT, at the time of the panel's establishment, provided for a duty of 15%,
which was however (by way of a footnote) temporarily reduced to 5% between 20 April 2013 and
31 December 2015.
19. Temporarily reducing a duty that otherwise exceeds the bound rate in this manner violates
Article II:1(a) of the GATT 1994. As the panel in EC – IT Products held, a temporary suspension of
an otherwise infringing duty cannot eliminate the inconsistency with Article II:1(a). While the
temporarily reduced duty does not exceed the bound rate, when seen together with the permanent
duty which does, it creates considerable uncertainty for exporters and constitutes less favourable
treatment under Article II:1(a), even before the expiry of the temporary duty. In any event, the
panel can and should find that providing for a higher rate of duty as of 1 January 2016 violates
Article II:1(b), and therefore also Article II:1(a) of the GATT 1994. A finding of inconsistency can
be made in relation to the future imposition of duties in excess of bound rates.

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20. Russia has put forward an amendment adopted several months after the Panel's
establishment, which allegedly brings the sixth measure at issue into compliance with Article II.
Even assuming that the duty is indeed permanently set at 5% as of 1 September 2015 (which
cannot be deduced from Exhibit RUS-1), that cannot take away from the terms of reference of the
Panel and there is still a matter to decide upon. The EU is entitled to seek a finding that the
measure, as existing at the time of the panel's establishment, violates Article II:1(b) and II:1(a).
Such an approach has been followed by numerous panels in the past.
A. Russia's request for rectification and modification of its Schedule
21. On 1 May 2015, a communication by the Russian Federation entitled "Rectification and
Modification of Schedules – Schedule CLXV – The Russian Federation" was circulated to WTO
Members. This communication sought to modify Russia's Schedule in respect of a number of tariff
lines, including 4810 13 800 9, 4810 19 900 0, 4810 22 900 0, 4810 29 300 0, 4810 92 100 0 and
4810 92 300 0, allegedly in order to align them with the results of Russia's bilateral accession
negotiations. On the basis of the Decision on Procedures for Modification and Rectification of
Schedules of Tariff Concessions ("Rectification Decision"), which, in its relevant part, only applies
to "amendments or rearrangements which do not alter the scope of a concession" and "changes
and other rectifications of a purely formal character" (paragraph 2), the EU objected to Russia's
request on 17 July 2015. As a consequence, the proposed changes cannot be certified and the
authentic text of the Schedule remains unchanged.
22. Contrary to Russia's claims, the EU's objection did not "diminish the rights" of Russia
under either the Vienna Convention on the Law of Treaties ("VCLT") or the Rectification Decision.
Under the Rectification Decision, which is an "other decision of the Contracting Parties to
GATT 1947" in the meaning of Annex 1A to the WTO Agreement, any member can object to a
rectification request that it considers to be outside the scope of its paragraph 2, i.e. that it
considers not to be of a purely formal character or to alter the scope of concessions. If the
correction of the alleged error would affect the scope of scheduled concessions, as in the case of
Russia's request, the appropriate avenue should be Article XXVIII.
23. The VCLT closely parallels the Rectification Decision. The essential issue under either is
whether all parties agree that there is an error. If a single party objects, the alleged error cannot
be corrected. The EU's objection to Russia's rectification request in this case clearly cannot
constitute agreement on the existence of an error.
24. Even if there was some difference between the VCLT and the Rectification Decision, it
should be recalled that the VCLT is not among the covered agreements, even though it may be
relevant for interpreting them. The DSU does not allow a Panel to disregard the Rectification
Decision (a part of the GATT 1994) in favour of Article 79 of the VCLT. Even if Article 79 applied as
customary international law, it would be superseded by the Rectification Decision. Article 79 itself
states that contracting States can decide upon some other means of correction. Moreover, Russia's
rectification request invoked the Rectification Decision and not the VCLT.
25. Russia also suggests that the alleged errors in the Schedule act as a defence against the
EU's claims on the first five measures at issue.
26. As a factual matter, it does not appear that any error took place during the preparation of
Russia's Schedule. On 21 May 2004, the EU and Russia concluded initial bilateral market access
negotiations in the context of Russia's accession to the WTO. Russia provided a list of tariff
concessions based on the Harmonized System Nomenclature 1996 ("HS 1996"). The document
concluding those negotiations provides, inter alia, that the European Communities' acceptance of
the list of concessions of the Russian Federation is without prejudice to its right to verify and
accept the final consolidated schedule of concessions. This acceptance was based on Russia's Draft
Schedule of Concessions and Commitments on Goods (the "Draft Schedule"), formulated on the
basis of HS 2007.
27. The results of bilateral negotiations were consolidated and converted into Russia's HS
2007 - based nomenclature, subject to technical corrections and the ultimate approval of both
Russia and other Members. Because tariff lines under different nomenclatures have distinct and
only partially overlapping coverage, one common transposition methodology is to apply the lowest

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rate of any previous tariff line to the whole of the new tariff line. Several Notes by the Secretariat
explain that this methodology was followed during Russia's accession process, except insofar as
Russia specifically requested the creation of ex-outs, i.e. new tariff lines. The record shows that
Russia was involved throughout the technical process of transposition, reviewing its tariff
concessions with the specific purpose of addressing the kinds of issues with respect to which
Russia now claims to have been in error, for at least a year prior to the circulation of its Draft
Schedule. Nevertheless, it never requested the creation of ex-outs for the tariff lines at issue in
this dispute.
28. Russia's Draft Schedule, circulated to the Membership, contains correlation tables between
HS 1996 and HS 2002 and between HS 2002 and HS 2007, expressly marked as "provided by the
Russian Federation". The final columns of those tables list the initial and final bound duty rates as
5% for all the paper and paperboard tariff lines addressed in this dispute. The same tables show
that each of the relevant tariff lines in the nomenclature used in the Schedule (HS 2007)
corresponds to at least one tariff line in the nomenclature used during bilateral negotiations
(HS 1996) for which both the initial and the final bound rate was 5%. The tables thus show that
there was no error in the formulation of Russia's Schedule, and that Russia itself proposed to the
WTO Membership a duty of 5% for the relevant tariff lines while acknowledging that such a duty
correctly reflects the results of bilateral negotiations. If any errors took place, they were Russia's.
Moreover, even if Russia had erred in providing those rates to the Working Party, it still had an
opportunity to propose technical corrections to its Draft Schedule. It failed to do so.
29. More importantly, even if Russia had made an error, or decided that its concessions are
higher than it would like, this cannot diminish its obligations under Article II. Russia seems to
argue that the EU can only invoke concessions that it itself bilaterally agreed with Russia. It is
impossible to limit a Member's concessions in relation to another Member, to the concessions
contained in the bilateral "deal" with that Member. First, the MFN obligation would prevent such an
approach. Second, by virtue of Article II:1 of the GATT, Russia owes to all other Members
treatment no less favourable than that provided in its Schedule. There is no requirement that a
Member's concessions must be limited to the concessions contained in that Member's bilateral
deals. Had Russia decided to grant further concession unilaterally, it was free to do so, and this
could have been a factor in other Members' decisions to agree with Russia's accession as a
package.
30. The EU does not claim that Russia violated WTO obligations by pursuing a particular goods
classification. The relevant issue is whether duties in the CCT exceed the bound duties in the
Schedule. Even if a Member used one tariff nomenclature in its customs tariff and another in its
Schedule – which is not the case with Russia, which admits that both the CCT and its Schedule,
insofar as the measures at issue are concerned, are based on HS 2007 – it would still have to
ensure that whatever duties it applies can never exceed the bound rates in the Schedule. All the
relevant changes to Russia's tariff nomenclature occurred before accession and have no bearing on
the extent of Russia's tariff concessions.
31. To conclude, it appears to the EU that, instead of having abruptly discovered an "error",
Russia is trying to unilaterally reduce the extent of its concessions. This should not be accepted,
first, because the certainty and predictability of scheduled concessions is an object and purpose of
the GATT 1994; second, because WTO dispute settlement cannot add to or diminish the rights and
obligations in the covered agreements (Article 3.2 of the DSU), including those provided by
Article II:1 of the GATT 1994 and by Russia's Schedule; third, because it would upset the balance
of rights and obligations set up between Russia and other Members on Russia's accession.
VII. APPLIED COMBINED DUTIES IN EXCESS OF BOUND AD VALOREM DUTIES
32. As of the time of the panel's establishment, for products falling under the tariff lines
1511 90 190 2, 1511 90 990 2 (palm oil and its fractions) and 8418 10 200 1 (combined
refrigerator - freezers), Russia applies a combined duty (requiring the applic ation of either an ad
valorem duty or a specific duty) whereas its Schedule provides for an ad valorem bound rate. It
does so in a way that necessarily results in the application of duties in excess of bound rates for
some categories of transactions.

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33. In Argentina – Textiles and Apparel , the Appellate Body made it clear that the application
of a type of duty other than that provided for in a Member's Schedule is not, in itself, necessarily
inconsistent with Article II:1 of the GATT 1994. It is, however, inconsistent with that provision to
the extent that the structure and design of the measure that imposes customs duties res ults in
ordinary customs duties being levied in excess of those provided in the Schedule. This is true of
the structure and design of the duties at issue in this dispute. With respect to all customs values
below a certain "break -even price", they result in the levying of customs duties in excess of the
bound rates. To that extent, they are inconsistent with Article II:1(b), and therefore al so with
Article II:1(a) of the GATT 1994.
34. The range of customs values with respect to which duties are imposed in excess can be
easily calculated in the abstract for each such tariff line. For example, if the customs value of a
product falling under the tariff lines 1511 90 190 2 and 1511 90 990 2 (palm oil and its fractions)
is below 3 EUR/kg, the formula "3% but not less than 0,09 EUR/kg" requires the application of the
specific duty and thus the levying of a customs duty that exceeds 3% ad valorem.
35. Russian authorities have levied such duties in practice, and the ad valorem equivalent of
the applied duty has in some instances dramatically exceeded the bound rate. Thus, customs
declarations exhibited by the EU show that Russian authorities levied duties in the amounts of
5.92% and 5.51% of the customs value under the tariff line 1511 90 190 2, and in amounts
between 16.8 and 22.07% of the customs value under tariff line 8418 10 200 1.
36. The EU does not claim that any variation in the type of duty breaches Article II. As the
Appellate Body found in Argentina - Textiles and Apparel , a Member could design a legislative
"ceiling" or "cap" on the level of duty applied "which would ensure that, even if the type of duty
applied differs from the type provided in that Member's Schedule, the ad valorem equivalents of
the duties actually applied would not exceed the ad valorem duties." In this case, however, no
such mechanism exists. The Appellate Body only spoke of such a mechanism as a possibility,
rather than an obligation. However, if some such mechanism is not used, all that would remain is a
combined duty which, on its face, imposes duties in excess of bound rates for a range of customs
values.
37. During proceedings, Russia asked the Panel to consider changes to the duties applied to
the two palm oil duties mentioned above as of 1 September 2015. The EU assumes that this
change, previously announced by the CCT, took place. Nevertheless, there is still a measure for
the Panel to rule on. When the Panel was established, the duty was "3% but not less than 0.09
EUR/kg". The Panel should make findings on that basis, even if it decides to give no specific
recommendations.
38. The EU also asks the Panel to consider that, for the ninth measure at issue (combined
refrigerator-freezers) the bound duty fell from 16.7% to 15% on 1 September 2015. To the
knowledge of the EU, Russia has not yet changed its applied duty (16.7% but not less than 0.13
EUR/l). The extent of the violation has thus increased, since the applied duty will always exceed
the new bound rate.
A. Russia's claims related to para. 313 of its Working Party Report
39. Russia invokes paragraphs 313 of the Working Party Report, arguing that it shows that
"during accession, the Members agreed not to impose obligation on Russia to convert the duties
into the format provided in its schedule." According to Russia, this means that a violation of
Article II, in the case of applied combined duties, can only be found on the basis of a calculation of
average customs values over three years.
40. Nothing in the paragraphs cited by Russia suggests that Russia is exempt from its duty to
respect its own Schedule. Rather than a "GATT minus" rule that reduces the extent of Russia's
obligations under the covered agreements, paragraph 313 is a "GATT plus" rule, imposing
obligations on Russia that are additional to its obligations under Article II. It never permits Russia
to exceed the bound rates specified in its Schedule. If the commitments in paragraph 313 of the
Working Party Report somehow amounted to a reduction of Russia's WTO obligations, the Protocol
of Accession or at least the Working Party Report would state so explicitly.

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41. Paragraph 313 concerns the relationship between the specific element and the ad valorem
element of a single combined duty that is contained both in the Schedule and in Russia's tariff. Its
purpose is to ensure that the specific element does not exceed the ad valorem element of that
same duty for the average customs value. If, after performing the calculation Russia refers to, it
appeared that the specific element leads to higher duties on average, and not just in a minority of
cases, then Russia would further reduce the applied specific element below its bound level. This
reading is also confirmed by the text of paragraph 313, stating: "In no case would the applied duty
(whether expressed in ad valorem or specific terms and whether determined by the Russian
Federation or the competent bodies of the CU) exceed the bound rate of the combined duty."
42. Russia's reading of paragraph 313 of its Working Party Report would effectively invalidate
Article II:1(b) of the GATT in relation to Russia. First, it would be impossible to raise an "as
applied" challenge against the levying of duties in excess of bound rates in a specific instance. To
apply Russia's reading to an example from the EU's Exhibits, it would suggest that a duty levied in
the amount of 33.14% of customs value would somehow not be in excess of a bound duty of
16.7% unless three years of customs statistics based on average customs values were also
provided. Second, it would allow Russia to generally apply duties in excess of bound rates to a
certain percentage of transactions. Third, it could even allow Russia to freely exceed bound duties
for some periods of time.
43. Finally, the EU is not aware that Russia has in fact ever performed the exercise described
in paragraph 313.
VIII. APPLIED COMBINED DUTIES IN EXCESS OF BOUND COMPLEX COMBINED DUTIES
44. The applied duties in the tenth and eleventh measures could also be described as
combined, in the sense that they "combine" a specific element with two ad valorem elements.
They could also be described as complex combined duties, to contrast them with the simpler
examples mentioned in Section VII.
45. For tariff line 8418 10 800 1, the Schedule at the time of the Panel's establishment
specified a bound duty of "16.7%; or 16 %, but not less than 0.156 EUR/l; whichever is the
lower". As of 1 September 2015, the bound rate is "15%; or 14%, but not less than 0.114 EUR/l;
whichever is the lower." As of 1 September 2016, it will be simply 12%. The CCT subjects these
products to a duty of "16%, but not less than 0.156 EUR/l". For tariff line 8418 21 100 0, the
Schedule at the time of the Panel's establishment specified a bound duty of "14.7%; or 13.3%, but
not less than 0.12 EUR/l; whichever is the lower". As of 1 September 2015, the bound rate is
10%. The CCT subjects these products to a duty of "13.3%, but not less than 0.12 EUR/l".
46. The design and structure of these applied duties results in duties being levied in excess of
bound rates for a certain range of customs values per litre. Russia provides for no mechanism,
such as a ceiling on the level of the applied duty, that would prevent the ad valorem equivalents of
the duties actually applied from exceeding the level of the bound duties. Below a certain break-
even price, the applied tariff will require the imposition of the specific element of the duty
(0.156 EUR/l or 0.12 EUR/l). Within that price range, there will be a further subset of cases where
the ad valorem equivalent of the applied specific duty exceeds 16.7% or 14.7% respectively,
which is the maximum rate Russia's Schedule would allow. For that subset of cases, therefore, the
CCT is inconsistent with Russia's obligations under Article II:1(b), first sentence, and therefore
also under Article II:(1)a of the GATT 1994.
47. A set of customs declarations from 2014 shows duties equivalent to between 25.39% and
33.14% ad valorem being levied under the tariff line 8418 10 800 1, exceeding the rate of 16.7%.
For the tariff line 8418 21 100 0, a customs declaration from 2015 shows the application of a duty
equivalent to 15.07% to this tariff line, exceeding the rate of 14.7% required by the Schedule.
48. As with the claims described in Sections VI and VII, the EU addresses the duties "as such",
directly on the basis of their structure and design, and not just individual instances of the
application of the duties ("as applied").

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49. Finally, as the bound duties have in the meantime fallen, and Russia has, to the
knowledge of the EU, not responded to these changes, the extent of the violation has grown.
Russia's applied duties will always exceed the new bound duties, regardless of customs value.
IX. THE SYSTEMATIC DUTY VARIATION
50. As the twelfth measure at issue, the EU challenges a more general measure referred to as
"the Systematic Duty Variation" or "SDV". The CCT systematically provides, in relation to a
significant number of tariff lines, for a type/structure of duty that varies from the type/structure of
duty recorded in the Schedule in a way that leads to the application of duties in excess of those
provided for in the Schedule for those goods, in one of the ways described in Sections VII and VIII
(in relation to the seventh to eleventh measure at issue), without providing for a mechanism that
would prevent the ad valorem equivalents of the applied duties from exceeding the level of the
bound duties.
51. Where the bound ad valorem rate is equal to the applied ad valorem element of the duty,
the specific element of the duty will always be applied in excess of bound rates. Where the bound
ad valorem rate is higher than the ad valorem element of the applied duty, the specific element of
the duty will still be in excess of bound rates in a subset of cases, again below a certain break-
even price. A different way in which the SDV could lead to the imposition of duties above bound
rates is where both the Schedule and the CCT provide for combined duties, but the structure and
design of the applied duties result in duties being levied in excess of bound rates with respect to a
certain range of import prices similarly as with the tariff lines described in Section VIII. Either way,
the price range in which duties are imposed in excess of bound rates is easy to calculate and
predict, such that it is possible to see precisely when and how duties will be imposed in excess of
bindings.
52. Neither the CCT nor any other legal instrument or practice provide for a mechanism that
would ensure that the ad valorem equivalent of the applied duty does not surpass the bound ad
valorem rate. The EU has fully satisfied its burden of proof in respect of the absence of such a
mechanism.
53. The EU has submitted to the Panel an Illustrative list containing a number of examples
that illustrate the SDV, as well as a table showing that, for the tariff line identified as the seventh
measure at issue, as well as for four of the tariff lines contained in the Illustrative list, even the
average customs value leads to the levying of a duty the ad valorem equivalent of which
significantly exceeds the bound rate. The claims of the EU with respect to the SDV are not,
however, limited to those specific examples. The EU seeks a single general finding, on a single
measure at issue, that systematically applying duties in excess of boun d rates in the specific way
described above, without providing for a mechanism that would prevent the ad valorem
equivalents of the applied duties from exceeding the level of the bound duties, constitutes a
violation of Articles II:1(b) and II:1(a) of the GATT 1994. This finding concerns a particular kind of
tariff treatment that has been reliably shown to occur in relation to a significant and changing
number of tariff lines in the CCT. Given the nature of the EU's claim, which is different in nature
from a claim against an exhaustive list of individual tariff lines, it could only ever be based on
evidence contained in an "illustrative list" of affected tariff lines.
54. The defining characteristic of the tariff treatment accorded under the SDV is not the fact
that it violates Article II:1, but the precise ways in which it operates. Stated in general terms, it
could be expressed as a mathematical formula. For example, any applied duty expressed as "X%
but not less than Y per unit of measurement" will exceed a bo und rate expressed as "X%" for
every customs value below "Y divided by X%".
55. A general finding, as opposed to a finding on a limited number of tariff lines, is necessary,
first, because violations resulting from the SDV are not rare and sporadic occurrence s. They
appear systematically throughout the CCT. Secondly, both the bound duties contained in the
Schedule and the applied duties contained in the CCT are subject to frequent changes (according
to the website of the EAEU, 136 between 30 August 2012 and 9 June 2015, and 29 between the
date of the Panel's establishment and 21 August 2015). By seeking a more general finding against
the SDV, the EU is preventing the measures at issue from becoming a "moving target" and getting
at the root of the WTO -inconsistency in order to facilitate the prompt and effective resolution of

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disputes. Indeed, challenges under Article II:1 of the GATT 1994 do not have to be expressed in
terms of individual tariff lines. A measure can be defined in relation to a particular kind of tariff
treatment that is imposed repeatedly through a Member's customs tariff. The Appellate Body has
found in EC – Chicken Cuts that "it is the measure at issue that generally will define the product at
issue."
56. Characterising the SDV as a distinct measure at issue conforms to the provisions of the
DSU and to the jurisprudence. In US – Corrosion-Resistant Steel Sunset Review , the Appellate
Body observed that "in principle, any act or omission attributable to a WTO Member can be a
measure of that Member fo r purposes of dispute settlement proceedings." In Argentina – Import
Measures, the Appellate Body found that what must be shown to demonstrate the existence of any
particular measure at issue is a function of "how such measure is described or characterized by the
complainant" and the "characteristics of the measure challenged."
57. Evidentiary requirements for the existence of a measure are not mechanistically imposed
by any of the analytical labels, such as "as applied" or "as such", that have been used as in
previous cases. In US – Continued Zeroing , for example, the Appellate Body did not require
evidence of general and prospective application, but merely of the use of a methodology as
ongoing conduct. Moreover, the "a s such/as applied" distinction does not d efine exhaustively the
types of measures that may be subject to challenge in WTO dispute settlement. The use of those
terms is context -dependent and does not in itself impose any particular evidentiary requirements
(even though all twelve measures at issue in this dispute could be described as "measures as
such" in the sense that the EU is not challenging individual instances of the application of a duty in
a particular import transaction).
58. The Appellate Body has accepted that a measure within the meaning of Article 3.3 of the
DSU can "consist of an ongoing conduct", and the jurisprudence shows that in some circumstances
even an "administrative practice", "policy", "concerted action or practice", "consistent practice" or
a "methodology" could be measures sub ject to WTO dispute settlement. An "as such" challenge
can be brought against a measure that is not expressed in the form of a written document.
59. The claim against the SDV fulfils the requirements of that jurisprudence. The SDV is
implemented in a large num ber of individual instances that are all contained in a legally binding
public instrument: the CCT. All of those instances, like the CCT as a whole, are attributable to
Russia, and they are indisputably intended to have, and in fact do have, general and pr ospective
application. The precise content of the SDV, and in particular the way in which it leads to the
application of duties above bound rates, has been described. The EU has explained the "concrete
instrumentalities" of the SDV, and the Illustrative li st details a number of instances of the SDV,
demonstrating the systematic application of the SDV.
60. The connection between the individual instances of the SDV is also clear: they all consist in
specific kinds of tariff treatment, and are all embodied in the CCT. The types of tariff treatment at
issue are described distinctly from the individual instances of the SDV, and the Illustrative list
shows that it is actually applied in a significant number of instances. That tariff treatment is
widespread and ongoing. It is likely to continue, being provided by the CCT which is a measure of
general and prospective application
61. The SDV, however, also goes beyond a mere "administrative practice" or "methodology",
because all of its individual instances are, in and of themselves, measures of general and
prospective application. With this in mind, the EU submits that, if a complainant identifies in detail
a particular type of treatment accorded by a legal provision (in this case, the type of tariff
treatment at issue); expl ains why, in the abstract, each such an individual legal provision would
violate the covered agreements in the same way; shows why each such individual legal provision
would be an act of general and prospective application attributable to a Member; points to a single
overriding written legal act of a Member in which all such individual provisions are located (in this
case, the CCT); submits evidence of a significant number of examples of such individual legal
provisions (in this case, the Illustrative List) ; and submits evidence of the adverse trade impact of
several such individual legal provisions (in this case, Exhibit EU -20), that it thus sufficiently
demonstrated the existence of an overriding measure violating the covered agreements that is
more general than the individual legal provisions at issue, and would encompass all such individual
legal provisions (whether listed as an example by the complainant or not).

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62. There would be nothing vague or uncertain about a panel finding and recommendation to
the effect that Russia should stop systematically according, by way of the CCT, particular clearly
described tariff treatment that inevitably leads to duties being imposed in excess of bound rates
for some customs values under each relevant tariff line. The Appellate Body proceeded on such a
basis in Argentina-Textiles and Apparel , finding a violation with respect to all relevant tariff
categories to which the regime of minimum specific import duties applied, on the basis of a
general assessment of the structure and design of the duties at issue, without requiring tariff-line
specific identification. Following that jurisprudence, there is no reason why all individual instances
of the SDV in the CCT, identifiable on the basis of the type of tariff treatment that is accorded,
could not fall within the scope of a single measure. The fact that, in this dispute, there is no
external written legal instrument stating that the tariff treatment at issue will be applied to some
segments of the CCT (although all of its individual instances are written legal instruments of
general and prospective application) is, in the EU's view, not a relevant distinguishing factor.
63. To conclude, with respect to the SDV, Russia has acted inconsistently with its obligations
under Article II:1(b), first sentence, and has therefore also accorded less favourable treatment to
imports within the meaning of Article II:(1)a of the GATT 1994.
X. CONCLUSION AND REQUEST FOR FINDINGS
64. The EU requests the Panel to find that Russia's measures, as set out above, are
inconsistent with Russia's obligations contained in Article II:1 (a) and (b) of the GATT 1994, and to
recommend that the Dispute Settlement Body requests Russia to bring the contested measures
into conformity with its obligations under the GATT 1994.

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ANNEX C-2
SECOND PART OF THE INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS
OF THE EUROPEAN UNION
I. INTRODUCTION
1. In this integrated executive summary, the European Union ("EU") will summarize the facts
and arguments presented to the Panel in its second written submission, its opening and closing
oral statement at the second substantive meeting with the parties, its responses to the Panel's
second questions and its comments to Russia's responses to the Panel's second questions.
II. THE MEASURES AT ISSU E AND RUSSIA'S REQUEST FOR A PRELIMINARY RULING
2. The Panel's Preliminary Ruling rejected all of Russia's requests and concluded that the EU's
panel request fully satisfies the requirements of Article 6.2 of the DSU with respect to all twelve
measures. The EU has made it clear that it is challenging twelve measures at issue, eleven of
which consist in the tariff treatment accorded to eleven individual tariff lines, and the twelfth of
which consists of the SDV. Russia's continued reliance on the arguments raise in its preliminary
ruling request cannot succeed.
3. In particular, the EU stresses that neither Article II of the GATT 1994 nor the DSU require
each measure at issue to correspond to an individual tariff line, whether specified in Harmonized
System ("HS") nomenclature or not. The Appellate Body found that it is the measure at issue that
generally will define the product at issue. Even a "system as a whole" can be challenged as a
measure, and measure can be defined simply by "a narrative description of the nature of the
measure" (Panel Report, EC – IT Products ), or in terms of a particular kind of tariff treatment
accorded to a broad set of products, like in Argentina – Textiles and Apparel . Neither the
complainant, nor the respondent, nor the Panel are required to specify an exhaustive list of tariff
lines concerned by the twelfth measure at issue at any point in these proceedings. The EU seeks a
general finding on a single measure that is not specified in terms of an exhaustive list of tariff
lines.
4. Finally, regarding the issue of attribution of the measures at issue to Russia, the EU notes
that, in principle, any measure adopted in the context of the EAEU is attributable to Russia. This
clearly follows from numerous paragraphs of Russia's Working Party Report. As the Turkey -
Textiles panel noted, in public international law, a customs union member could be held
responsible for the measures taken by the customs union. This gains particular force when the
customs union itself is not a WTO Member. If the Panel were to consider that the measures at
issue are not attributable to Russia because they are customs union measures, this would mean
that EAEU measures would be immune from scrutiny in WTO dispute settlement.
5. The fact that the legal instruments pursuant to which the tariff treatment is accorded are
adopted by the bodies of the EAEU does not mean that the measures at issue in this dispute are
not Russia's measures, within the meaning of Article 3.3 of the DSU. In these proceedings, no
claim has be en made that any of the measures at issue are not Russia's measures. It is
uncontested that the duties at issue are actually applied by Russia and that this happens pursuant
to the legal instruments enacted by the bodies of the EAEU. Russia has even claime d that certain
amendments to the CCT bring some of the measures at issue into conformity with Russia's WTO
obligations.
III. THE LEGAL STANDARD UNDER ARTICLE II:1 OF THE GATT 1994
6. Under Article II:1(b) Members are prohibited from imposing ordinary customs duties in
excess of those set forth and provided in their Schedule. Even the smallest amount of excess is too
much. When a panel finds that the applied duty exceeds the bound duty, which can be done on
the basis of a straightforward comparison of the structure and design of the duties, the analysis is
complete. No trade effects test needs to be performed and no de minimis threshold of excess
needs to be surpassed (Appellate Body Report, Japan – Alcoholic Beverages II ). Duties may not

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be imposed in excess even with respect to a subset of import transactions under a particular tariff
line. Moreover, there would be a violation of Article II:1(b) even if no imports actually took place
(Panel Report, Mexico – Taxes on Soft Drinks).
7. Russia's arguments related to paragraph 313 of its Working Party Report contradict this
jurisprudence, as they would have as consequence that the "smallest amount of excess" would not
suffice when Russia is concerned, that goods would have to be actually imported to Russia for a
period of at least three years before any conclusions could be drawn on whether the applied duty
exceeds the bound rate, and that "as applied" challenges against the levying of duties in excess of
bound rates in a single import transaction would be impossible.
8. Russia's earlier arguments related to the alleged error would also upend the basic elements
of the analysis under Article II:1 of the GATT 1994. Even if Russia had erred in deciding to propose
certain duty rates to the Membership, this can have no consequences on the extent of Russia's
tariff concessions.
IV. APPLIED AD VALOREM DUTIES IN EXCESS OF BOUND AD VALOREM RATES
9. Regarding the first five measures at issue, it seems that after Russia's second written
submission there is no longer any dispute that they are duties in excess of bound rates, in
violation of Article II:1(b) of the GATT 1994. Russia has clarified that its statements on the alleged
error, including those invoking Article 79 of the VCLT, were "for information only", that "the
current concessions of the Russian Federation are reflected in 'Schedule CLXV'", that the issue of
the error is outside of the Panel's terms of reference, and that the Schedule does not provide for a
specification of the relevant tariff lines that would include bound duties exceeding 5%. It seems to
be undisputed that Russia's Draft Schedule, and final Schedule, were correctly consolidated and
transposed into their current format, following normal WTO practice and the methodology that was
clearly explained by the WTO Secretariat.
10. Nevertheless, the offending duties – two or three times higher than the bound level –
remain in force. The Panel must therefore find that the first five measures violate Article II:1(b),
and therefore also Article II:1(a), of the GATT 1994, and recommend that those measures be
brought into compliance.
11. Regarding the sixth measure at issue, when the Panel was established, Russia provided for a
duty of 15%, which was to be temporarily reduced to 5% until the end of 2015. After an
amendment to the Common Customs Tariff (CCT) was adopted during the panel proceedings and
entered into force on 1 September 2015, the EU understands that the rate of applied duty is the
same as provided in the Schedule.
12. Nevertheless, the EU asks the Panel to find that the measure, as it existed when the Panel
was established, violates Article II:1(a) and II:1(b) of the GATT 1994. First, like the measure in EC
– IT Products , the sixth measure violates Article II:1(a) even while the duty is temporarily
reduced, given that the permanent duty is in excess. Second, the measure would violate Article
II:1(b) and therefore also Article II:1(a) as soon as the excessive duty begins to be levied. There
is no reason why a panel could not make a prospective finding of such a violation, from the
vantage point of its time of establishment, nor is there a need to show that products have actually
been subject to a particular duty in order to find that the structure and design of that duty violates
Article II:1(b) of the GATT 1994. While the EC - IT Products Panel focused on the claim of a non-
consequential violation of Article II:1(a), it nevertheless found (in any event, this is either implied
in its findings or at least not contradictory to them) that a violation of Article II:1(b) would result
upon the expiry of the suspension.
13. Regarding the sixth measure, the Preliminary Ruling has already found that a challenge can
be made under Article II:1 of the GATT 1994 even before the higher rate of duty begins to be
applied. In addition, there is no dispute that the sixth measure exists. The parties agree as to what
the CCT provided for when the Panel was established. The Preliminary Ruling has also already
decided that, because the EU is not making a so-called "non-violation" claim under Article
XXIII:1(b) of the GATT 1994, the EU does not need to separately provide evidence that benefits
accruing to it were impaired by the sixth measure. It would be contradictory to allow complainants
to challenge measures of general and prospective application such as customs duties before such

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measures were ever actually applied, while at the same time requiring them to show the trade
impact of those measures in order to establish inconsistency with the covered agreements.
V. APPLIED COMBINED DUTIES IN EXCESS OF BOUND AD VALOREM DUTIES
14. Measures 7-9 should also be assessed as they existed when the Panel was established.
There is no disagreement as to what the CCT provided at that point. In terms of law, the EU's
position is rooted in we ll-established jurisprudence on Article II of the GATT 1994, notably
Argentina – Textiles and Apparel. In general terms, a duty in the form of "X% but not less than Y
per unit of measurement" – like the seventh to ninth measures - will exceed a bound rate of X%
whenever the customs value is below a certain level or break-even price (specifically, below Y
divided by X%), and as long as there is no mechanism such as a ceiling keeping the combined
duty below the bound level. Such duties violate Article II:1(b) not just because the type of the
duty varies, but because and to the extent that they are in excess. It is clear that in this case
there is no additional mechanism, such as a ceiling, that would prevent duties from being levied in
excess. Russia's assertions that the EU failed to show the absence of a ceiling amount to a request
to prove a negative.
15. Regarding Russia's arguments related to paragraph 313 of its Working Party Report, the EU
considers that that paragraph is not relevant to the seventh to ninth measures at issue.
16. First, these measures, as set out in the panel request, consist in combined duties with
respect to which the Schedule provides an ad valorem rate. Paragraph 313 only concerns
situations where both the applied and bound duties are combined (consisting of alternative ad
valorem and specific elements). This is made clear by the last sentence of paragraph 312, which
refers to the combined duty rates in the Schedule, and also by the first sentence of paragraph 313,
which refers to the "alternative ad valorem duty rate" for a tariff line "in the Schedule." If this
were about ad valorem bound duties, the Schedule would not contain alternative rates, but just
one ad valorem rate.
17. Second, paragraph 313 is not relevant because it is an additional and distinct obligation of
Russia, and not a way of interpreting, changing or limiting Russia's obligations under Article II of
the GATT 1994, or a justification or exemption from that provision. Paragraph 313 makes this
quite clear when it st ates that "in no case would the applied duty… exceed the bound rate of the
combined duty".
18. Third, the consequence of the application of the mechanism can only be that an element of a
combined duty is reduced further below the bound level, and not that the applied duty can exceed
the bound level.
19. While Russia appears to concede that paragraph 313 "does not change Russia's obligation
under Article II:1 of the GATT", it clearly construes it in a way that would allow it to exceed bound
rates. Russia believes that it could maintain the applied combined duty, as long as the ad valorem
equivalent of the duty imposed on the average customs value, calculated over three years, did not
exceed the ad valorem bound rate.
20. When Russia states that paragraph 313 contains a "methodology for calculating ad valorem
equivalents" that is unique to Russia and "informs the content of Russia's obligations under Article
II:1", it is in fact saying that paragraph 313 allows it to exceed bound rates. The EU has explained
that the question of ad valorem equivalents is a simple question of arithmetic: a levied duty is
divided by the customs value. The calculation methods described in paragraph 313 of Russia's
Working Party Report and the comparison of applied and bound duties for purposes of Article II:1
are simply two unrelated issues.
21. In Russia's reading, a finding of a violation of Article II:1(b) would require three years of
statistics on actual imports showing that duties exceed bound rates on average. Therefore, an "as
applied" challenge to a duty levied in a single import transaction would be impossible, and Russia
could freely exceed the bound rate some of the time, as long as the average customs value over
three years remained above the break-even price, at least within each consecutive three year
period. Russia could do so not just in a few isolated instances, but in an important proportion of

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transactions, as long as the bound rate is respected in respect to an average customs value. This
means that Russia is in fact reading paragraph 313 as a "GATT-minus" rule.
22. Moreover, Russia seems to also believe that it could require complainants to provide
evidence of specific transactions in which duties were levied in excess on top of the evidence
related to average customs values. If it could, the evidentiary burden for complainants under
Article II:1 of the GATT 1994 would be practically insurmountable.
23. The EU considers that Russia's reading of paragraph 313 must be rejected. In addition,
whatever the mechanism described in paragraph 313 does, it is clear from the record of this
dispute that Russia is not actually applying it, nor is it informing other Members of the results of its
calculations, as that paragraph requires.
24. To summarize, paragraph 313 is an additional obligation of Russia. Its purpose is to
minimize the differences between the specific and ad valorem elements of a single combined
applied duty. It requires Russia, in some cases, to reduce the specific element of a combined duty
below its bound rate. Specifically, it imposes an additional obligation that could be infringed even
when an applied combined duty is equal to the bound combined duty, but where the results of the
three-year calculation "showed that it was necessary to reduce the specific duty rate alternative"
so that its "ad valorem equivalent… would be no higher than the alternative ad valorem duty rate".
As its wording makes clear, paragraph 313 simply never allows Russia to exceed bound rates.
25. With that in mind, the EU notes that paragraph 313 is equally irrelevant with respect to
measures 10 and 11 as it is with respect to measures 7-9.
AMENDMENTS AND OTHER CHANGES TO THE RATES OF DUTY
26. Several changes to the levels of duty under measures 7-9 took effect during these
proceedings.
27. The current applied duties for measures 7 and 8 seem to be equal to the bound rate of 3%,
since the specific element of the applied duties has expired. Consequently, as from 1 September
2015 the CCT appears to provide for an applied duty of 3%, which is equal to the bound rate. The
EU nonetheless requests the Panel to adopt findings on these measures, as they existed when the
Panel was established.
28. As for the ninth measure on combined refrigerator-freezers, the current applied duty
continues to exceed the bound rate, similarly as when the Panel was established. While the ad
valorem element of the applied duty was reduced from 16.7% to 15%, the specific ("not less than
0.13 EUR/l") has been retained. The EU therefore requests the Panel to find a violation of Article
II:1(b), and therefore also of Article II:1(a) of the GATT 1994, and to recommend that the
measure is brought into conformity with Russia's WTO obligations.
29. Regarding the ninth measure, the EU has explained the development of the levels of the
bound and applied duties in three relevant moments or periods: first, when the panel was
established; second, between 1 and 20 September 2015; third, since 20 September 2015. In all
three, the applied duty exceeded or exceeds the bound rate, in violation of Article II:1(b) and
II:1(a) of the GATT 1994. The EU seeks recommendations to bring this measure into compliance,
and thus also the corresponding findings, with reference to the most recent point in time (as
amended on 20 September 2015).
30. The previous moments or periods show the development of the measure at issue over time,
which is a pertinent a factual issue that the Panel should make findings on. Moreover, if that
development shows a persistent situation of WTO -inconsistency, or si milar repeated instances of
WTO-inconsistency, as is the case here, the Panel should also draw the appropriate legal
conclusions. The Panel is not prevented from making the straightforward conclusion that, both
when the Panel was established and between 1 and 20 September 2015, the applied duty
exceeded the bound rate, which is a clear violation of Article II:1(b) and II:1(a) of the GATT 1994.
31. The Panel's authority to make such findings stems from Articles 7 and 11 of the DSU. Where
measures at issue w ere rendered WTO-consistent during panel proceedings, previous panels have

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made findings of WTO-inconsistency as of the time of panel establishment. The US - Poultry
(China) panel stated that such findings are necessary in order not to deprive the parties of a
"meaningful review of the consistency" of the respondent's measure. This concern is valid also in
cases where a measure has been amended in a WTO-inconsistent way.
VI. APPLIED COMBINED DUTIES IN EXCESS OF BOUND COMPLEX COMBINED DUTIES
32. Measures 10 and 11, as in force when the Panel was established, violate Article II:1(b) and
therefore also Article II:1(a) similarly to measures 7-9. As already explained, below a certain
customs value, the applied duties exceed the bound rates.
33. Paragraph 313 is not relevant to the EU's claims against measures 10 and 11. First, those
measures do not fall within the scope of that provision, since the bound duties are of a more
complex form, consisting of an additional ad valorem element. Second, the EU refers to all of the
remaining arguments mentioned in connection to this issue under measures 7-9.
34. The EU understands that, after the CCT has been most recently amended during these
proceedings, these two duties seem to correspond to the current bound rates. The relevant
amendment entered into force on 20 September 2015. There was no other amendment of the
applied duty between 1 and 20 September. However, the bound duties for those two tariff lines
had changed on 1 September. As explained in detail in the EU's Second Written Submission, this
means that, between 1 and 20 September 2015, even the ad valorem elements of the applied
rates exceeded the bound rates.
35. Because the applied duty seems to no longer exceed the bound rate, the EU seeks no
recommendations. The Panel should, however, adopt findings both on the facts relevant to the
measures as they developed over time, and on the applicability of and conformity with Article
II:1(b) and II:1(a) of the GATT 1994, both with respect to the measures as they existed when the
Panel was established, and with respect to the period between 1 and 20 September 2015. In this
respect, the EU refers to its arguments in connection to the ninth measure at issue.
VII. THE SYSTEMATIC DUTY VARIATION
36. With respect to the twelfth measure, the EU has explained that Russia systematically
provides a particular well-defined type of tariff treatment that has the consequence, for some
customs values, that duties will be levied in excess. This measure is therefore in violation of Articl e
II:1(b) of the GATT 1994. The individual instances of the SDV closely parallel each other and
consist in the same type of tariff treatment. The bound and applied duties are of the same form,
and the only thing that varies are the numbers. The violation takes place, in every individual
instance, in the same way and for the same reasons.
37. The EU has throughout its submissions clearly described the three particular types of tariff
treatment required by the SDV in mathematical terms. The first and most frequent type of tariff
treatment required by the SDV is as follows. The bound duty is ad valorem (expressed as "X%"),
and the applied duty is combined, consisting of an ad valorem and a specific element (expressed
as "X% but not less than Y per unit of measurement"). There is no mechanism such as a ceiling
that further moderates the level of the applied duty, capable of ensuring that the ad valorem
equivalent of the applied duty never exceeds "X%". For all tariff lines to which such treatment is
accorded, the applied duty will exceed the bound rate (expressed as "X%") for every customs
value below "Y divided by X%".
38. The second type is the same as the first type, except that the bound ad valorem duty is
higher than the ad valorem element of the combined applied duty. In such cases (bound duty is
"X%"; applied duty is "Z% but not less than Y per unit of measurement", where X>Z), the duty
would be applied in excess of bindings whenever the customs value is below "Y divided by X%".
The third type is analogous to the tariff treatment under measures 10 and 11. Whenever the
applied duty is expressed as "X% but not less than Y per unit of measurement", and the bound
duty is expressed as "Z%; or X% but not less than Y per unit of measurement; whichever is the
lower" (where Z is higher than X), the duty would be applied in excess of bindings whenever the
customs value is below "Y divided by Z%".

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39. The second type of tariff treatment is virtually the same as the first, in terms of the
assessment of a violation of Article II:1 of the GATT. Both in the first and second type of tariff
treatment, the violation occurs in the same way in respect of the range of customs values below
the same break-even price. The third type of tariff treatment is somewhat more specific, but it
nevertheless shares an important feature with the first two: for some customs values, the
structure and design of the duty require the application of a specific duty that exceeds the ad
valorem rate provided in the Schedule.
40. Because their essential features are the same, the EU has addressed the three types of tariff
treatment together. Alternatively, they could also be addressed separately. In light of that, the EU
believes that the Panel could also make a finding of inconsistency just by reference to the first, or
to the first and second type of tariff treatment. In that case, the EU would not object if the Panel
were to exercise judicial economy with respect to the third, or second and third type.
41. The description of the relevant types of tariff treatment makes reference to the bound rates.
In particular, whenever the existence or absence of such a ceiling is considered as an aspect of the
tariff treatment, or of the structure and design of the duties, a reference to the bound rate is
necessary. It would make no sense to speak of the ceiling in isolation from the bound rate.
42. The premise of EU's claim is that the SDV covers duties of a particular type, imposed in
cases where the bound duty is of a particular type, without a ceiling or similar mechanism. The
preliminary factual conclusion is that, as described, the SDV will in each instance result in the
levying of duties in excess, for some customs values. The legal conclusion is that, because duties
are levied in excess, even for only some customs values, there would be a violation of Article
II:1(b) of the GATT 1994.
43. The EU has submitted a non-exhaustive Illustrative list, the accuracy of which Russia has
not objected to, that clearly shows that Russia accords the relevant type of tariff treatment
(specifically, the first type of tariff treatment: combined duties with an ad valorem element equal
to the bound rate) to a significant number of tariff lines in the CCT. The EU has also provided, in
Exhibit EU-20, several examples of such cases where the violation is so extensive that the bound
rate is exceeded even for the average customs value (Russia has not objected to any of the latter
calculations, even though it has pointed out that the calculation would not have the same result
with respect to the tariff line 1511 10 900 2, which was however not among the examples
provided by the EU).
44. A general finding that the SDV is inconsistent with Article II:1(b) and Article II:1(a) of the
GATT 1994 would be well-grounded in the jurisprudence. It would conform to the approach of the
Appellate Body in Argentina – Textiles and Apparel, which did not concern an exhaustively defined
list of individual tariff lines, but the structure and design of the DIEM regime as a whole, because
of the design and structure of the particular tariff treatment it accords. In that dispute, the
Appellate Body did not need to examine the tariff treatment accorded to each individual tariff line,
make findings about the individual break-even prices, average customs values or the usual price
ranges, or even compare each individual bound and applied duty. It endorsed the Panel's findings
that "the very nature of the minimum specific duty system" will inevitably lead, "in certain
instances", to the imposition of duties in excess, and agreed with the Panel that statistics related
to only some of the relevant tariff lines provided "reliable information" that duties were imposed in
excess. The Appellate Body also considered that it is not necessary to find a violation of Article II:1
"for each and every import transaction in a given tariff category"; rather, the structure and design
of the DIEM regime gave sufficient reasons to find a violation with respect to a "certain range of
import prices within a relevant tariff category".
45. Moreover, such a finding would conform to the jurisprudence on what constitutes a
"measure" under Article 3.3 of the DSU. The measure's existence, precise content and systematic
nature are sufficiently demonstrated by describing the tariff treatment at issue and by the
Illustrative list and statistics demonstrating the trade impact of such tariff treatment.
46. The SDV could be described as a single general measure that is reflected in a number of
more specific rules or norms of general and prospective application, such as the "US 'dolphin-safe'
labelling provisions" in US - Tuna II . In that sense, it is analogous to a "rule or norm", or to a
more general measure that is reflected in a number of specific rules or norms of general and

- C-18 -

prospective application. The SDV affects a number of instances of tariff treatment which could all,
individually, be challenged as binding and written measures of general and prospective application.
Logically, the more general measure cannot be less than that. In this respect, an analogy could be
drawn with US-Tuna II (Mexico), where a number of distinct "normative instruments", which could
all have constituted a measure attributable to the respondent, were considered together as a
single measure.
47. The SDV could also be approached as "ongoing conduct", i.e. conduct that is currently taking
place, is likely to continue in the future, and likely to operate prospectively.
48. The Panel should, however, take into account the specific nature of the SDV, primarily the
fact that all of the individual instances of the SDV are in themselves written measures of general
and prospective application, unlike with the measures assessed in US - Zeroing and related cases,
where complainants attempted to bring together a mere string of individual administrative
practices. A practice consists of repeated individual instances of a particular sort of behaviour,
which may or may not be isolated, and which may or may not continue. Each individual instance of
the SDV – each tariff line in which the tariff treatment covered by the SDV is accorded – could be
described as a rule or norm of general or prospective application. Therefore, those instances are
not similar to the exercise of administrative discretion in a certain number of individual cases. Each
of them covers an indefinite number of individual transactions, and they leave no scope for
administrative discretion. They clearly require the application of a particular type of tariff
treatment, or three sub-types. The instances of the SDV are not one-off, discrete events that only
affect an individual transaction or a set of facts that is clearly circumscribed in time and space.
They are transparent, binding legal rules meant to cover all import transactions for particular
products. Because of this, the concerns which led the Appellate Body in US - Zeroing (EC) to
impose a high evidentiary "threshold" on the complainant, and to require "particular rigour" from
panels dealing with unwritten measures, are not raised by the SDV.
49. In any event, the EU has never attempted to strictly characterize the SDV as either a "rule
or norm", a "practice", or as "ongoing conduct". As the Appellate Body found in Argentina – Import
Measures, the elements that must be substantiated with evidence and arguments in order to prove
the existence of a measure challenged will be informed by how such measure is described or
characterized by the complainant. Article 3.3 of the DSU speaks simply of "measures taken by
another Member". The concept of a measure is broad; it extends to any act or omission that is
attributable to a WTO Member. Therefore, the EU cautions against the mechanistic application of
any legal tests for the existence of "ongoing conduct" or "rules or norms".
50. In US – Zeroing (EC) , the Appellate Body found that "a panel must carefully examine the
concrete instrumentalities that evidence the existence of a purported "rule or norm". In the EU's
view, the meaning of that statement is that a complainant may not seek recommendations against
a purely hypothetical WTO inconsistency of a measure that has not been shown to exist. In this
dispute, the EU has submitted at least two pieces of evidence of "concrete instrumentalities"
showing the existence of the SDV. First, the Illustrative list contains a non- exhaustive list of tariff
lines to which the particular type of tariff treatment covered by the SDV is accorded. Second,
Exhibit EU-20 shows the adverse trade impact of several of the tariff lines identified in the
Illustrative list. A "concrete instrumentality" is a way in which something more general is put into
practice. The tariff treatment accorded under each of the tariff lines in the Illustrative List and
Exhibit EU-20 could, in that sense, be described as a "concrete instrumentality" of the SDV. Those
exhibits can thus be said to show the concrete instrumentalities that evidence the existence of the
SDV.
51. The precise content of the SDV is the particular kind of tariff treatment it accords. The EU
has shown, by way of the Illustrative List, that Russia frequently accords exactly such tariff
treatment to a significant number of tariff lines in the CCT. The Illustrative List is also evidence of
the systematic nature of that measure.
52. It is important to stress what the SDV is not. Because the SDV is not defined in terms of an
exhaustive list of products, neither Article 6.2 of the DSU nor Article II of the GATT 1994 require it
to provide an exhaustive identification of "products at issue". Specific identification of each
individual tariff line affected by the SDV is not required. The EU is also not challenging the mere
fact that the applied duties differ in type or form to the bound duties. The SDV violates Article
II:1(b) because it leads to duties being imposed in excess. Contrary to Russia's arguments, the EU

- C-19 -

did not need to show a separate written law requiring the SDV. The jurisprudence shows, first, that
even unwritten measures, methodologies or concerted practices can be challenged as measures;
second, that a general violation of Article II:1(b) can be found without tariff-line level specificity.
The EU agrees that this case is different from Argentina – Textiles and Apparel insofar as the
offending tariff treatment is not described in a separate written measure, but is embedded directly
into the CCT, but this practical distinction should not be legally decisive.
53. Russia proposes that the Panel should seek evidence on the price ranges of various products
affected by the SDV. This is entirely irrelevant for the EU's claim under Article II:1(b), which is
based on the design and structure of duties. Indeed, duties can violate Article II:1(b) even when
they have never been actually levied in excess. Russia would also like to see evidence of the
average customs value under each tariff line. However, it is well established that Article II:1(b) is
violated not only by duties that are in excess on average, but by all duties that are designed so
that they could be in excess, even in a small minority of transactions, and even in a hypothetical
transaction. Members may not compensate the instances where duties are in excess by other
instances where they are not (Panel Report, Argentina – Hides and Leather).
54. Finally, the EU is not simply raising an unspecified blanket challenge against an entire piece
of legislation without specifying it further, but against a very specific kind of tariff treatment. In
fact, Russia would not seem to object if the EU challenged all provisions of the CCT as a single
written measure under Article II:1(b). If that is true, however, Russia should not be troubled by
the challenge raised against the SDV, which is a great deal more specific.
55. Russia cannot plausibly argue that it cannot bring the SDV into conformity with the GATT
1994 because its Schedule contains too many tariff lines; after all, it defined all those tariff lines
itself. Russia can also not argue that it is unsure how to change the relevant duties. The changes
to measures 7, 8, 10 and 11 show that Russia is capable of bringing individual instances of the
kind of tariff treatment covered by the SDV into conformity with Article II:1 of the GATT 1994.
Russia could stop according the tariff treatment at issue by, for example, changing the duties, or
by imposing a ceiling or similar mechanism. Even after bringing the SDV into conformity with
Article II:1, Russia could still vary the type of duty, and even retain a specific duty, as long as it
ensures that duties are not levied in excess of bound rates.
56. In addition, contrary to Russia's statements, no choices need to be made between
respecting the terms of paragraph 313 of Russia's Working Party Report and bringing the SDV into
compliance with Article II:1 of the GATT 1994. Article II:1 and paragraph 313 are, as the EU has
explained, two distinct obligations. Moreover, paragraph 313 simply does not apply to situations
where the bound rate is ad valorem (first and second type of tariff treatment under the SDV) or to
complex combined duties (third type of tariff treatment under the SDV).
57. To conclude, the EU has described in detail a particular kind of tariff treatment and
explained why each legal provision according it would violate the covered agreements in the same
way, regardless of the individual levels of duty. Each such individual legal provision would qualif y
as an act of general and prospective application attributable to Russia. The EU has pointed to a
single overriding written legal instrument in which all such individual provisions are located: the
CCT. The EU has provided a significant number of examples of such individual legal provisions (the
Illustrative List) and submitted evidence of the adverse trade impact of several such individual
legal provisions (Exhibit EU-20). In the EU's view, this suffices to show that the SDV violates
Article II:1(b) and II:1(a) of the GATT 1994.
VIII. CONCLUSION AND REQUEST FOR FINDINGS
58. The EU stands by its request for findings and recommendations with respect to the twelve
measures. To the extent that the inconsistency with Article II:1 was addressed through
amendments or other changes adopted during these proceedings, the EU nonetheless requests the
Panel to adopt findings on the measures as they existed when the Panel was established and,
where relevant, as they developed over time.

- C-20 -

ANNEX C-3
FIRST PART OF THE EXECUTIVE SUMMARY OF THE ARGUMENTS
OF THE RUSSIAN FEDERATION
I. Introduction
1. The Russian Federation shows that certain claims advanced by the European Union with
respect to the Russian Federation's measures fall outside the terms of references of the Panel .
Alternatively the Russian Federation demonstrates that all claims advanced by the EU should be
rejected since no inconsistency of the Russian Federation's measures with its obligations under the
WTO Agreement, in particular Article II:1 (a) and (b) of the GATT 1994, has been proved.
II. Terms of Reference of the Panel
A. The Failure of the European Union to Identify the Measures Challenged
2. The European Union failed to fulfill the requirements of Article 6.2 of the DSU by failing,
using the European Uni on's terminology, in some instances to " identify the specific measures at
issue", while in some other instances - to " provide a brief summary of the legal basis of the
complaint sufficient to present the problem clearly".
3. Taking into account that the present dispute is about the level of applied duties, the
measures contested by the European Union should be identified precisely since there are
thousands of tariff lines in customs tariff with different applied duties and corresponding to them
bound rates.
4. The Schedule of Concession and Commitments lists the pertinent Harmonized System tariff
item number, followed by a description of the product and corresponding bound rate, i.e. the
Schedule establishes the terms, conditions and qualifications in relation to particular product
provided for in the Schedule. The Russian Federation underlines that every tariff line has its own
bound rate. Only after examining the concrete tariff line with its bound rate it is possible to
determine contracting party's violation or non-violation of Article II of the GATT 1994 by the
reason of the excess or non-excess of the applied duty vis-à-vis corresponding bound rate.
5. Thus, the Russian Federation considers unacceptable to use the terms "significant number of
tariff lines", "certain goods", "certain other goods" in the Request for Establishment of a Panel in
the dispute related to the level of applied customs duties.
6. A Member cannot be in breach of its commitments under Article II in isolation from the
commitments set out in that Member's Schedule. Thus reference to a particular commitment in
respect of a particular duty for a particular product is a prerequisite for identification of the
measure at issue and the legal basis for one's claims in its regard. Otherwise, the failure of the
complaining party to indicate the particular commitment, borrowing the Appellate Body's words in
EC – Tariff Preferences, places "an unwarranted burden on the responding party".
1
7. In Australia – Salmon the Appellate Body gave a clear definition of a measure at issue. " A
measure at issue can only be a measure that is actually applied to the product at issue".2
8. We see two important elements in this simple sentence. First, there should be clear
identification of measure that is actually applied . When making " certain", using the European
Union's terminology again, claims, the European Union does not present to the Respondent or the
Panel what the European Union believes is actually applied by Russia. The European Union made a
general statement that there are examples of some duties that the European Union feels to be
inconsistent with some of Russia's obligations. However, according to the European Union's own

1 Appellate Body Report, EC – Tariff Preferences, para. 113.
2 Appellate Body Report, Australia – Salmon, para. 103.

- C-21 -

statements, is not challenging these examples. It seeks a more general finding, leaving it up to the
Respondent and the Panel to identify the concrete issues that the European Union would like to
challenge. Unlike abstract generalised statements of the European Union, the CCT applied by
Russia, as well as any customs tariff of any other Member, is a very concrete document with
clearly identified tariff lines and applied duty rates. The statement that certain aspects of the CCT
are challenged cannot be considered as indication of "measure at issue".
9. Second element of the sentence quoted from Australia – Salmon is the fact that such
measure should be actually applied to the product at issue . It is not clear what constitutes the
product at issue in this dispute since the European Union failed to provide the list of such products
that would not be illustrative or would not use terms such as "certain goods", "certain other goods"
or "significant number of tariff lines".
10. Article II:1(a) referred to by the European Union requires that a Member shall accord
"treatment no less favorable than that provided for in the appropriate Part of the appropriate
Schedule"
11. Thus, Article II of the GATT provides the requirements for the tariff treatment of the product
specified in the Member's Schedule.
12. As the Appellate Body observed in US – Carbon Steel, "although the listing of the treaty
provisions allegedly violated is always a necessary "minimum prerequisite" for compliance with
Article 6.2, whether such a listing is sufficient to constitute a "brief summary of the legal basis of
the complaint sufficient to present the problem clearly" within the meaning of Article 6.2 will
depend on the circumstances of each case, and in particular on the extent to which mere reference
to a treaty provision sheds light on the nature of the obligation at issue".
3
13. A Member cannot be in breach of its commitments under Article II in isolation from the
commitments set out in that Member's Schedule.
14. In respect of each tariff line being a part of contested measure the Complainant should
submit sufficient evidence that the applied duty is in excess of the bound rate. However, the
European Union is actually building its position on the invented presumption that the application of
type of duty other than set forth in WTO Member Schedule automatically leads to the violation of
its WTO obligations. The Russian Federation is not aware of the existence of such a presumption in
relation to Article II of GATT 1994 or any other provision of the WTO Agreement.
15. Not knowing the tariff lines which are argued by the European Union, as well as the
corresponding bound rate and its obligations with regard to such tariff lines the Russian Federation
is deprived of its rights to defend its measures.
16. The defects of the European Union's Request for Consultations and Request for
Establishment of a Panel do not allow the EU to pursue claims advanced with a reference to
"certain goods" and "significant number of lines"
B. The new claims of the European Union
17. In accordance with Article 4 and 6 of the DSU a complaining party must request
consultations, and consultations must be held before a matter may be referred to the Dispute
Settlement Body for the establishment of a panel. Consultations requests constitute a prerequisite
for panel requests and, as a result, they "circumscribe the scope of panel requests".4 The Appellate
Body has held that a panel request cannot include claims (either in relation to "challenged
measures", or in relation to "legal bases"), which were not included in the corresponding
consultations request, where these "new" claims " expand the scope of the dispute ",
5 or have the
effect of "changing the essence of the complaint".6

3 Appellate Body Report, US – Carbon Steel, para. 130.
4 Appellate Body Report, Mexico – Anti Dumping Measures on Rice, para. 137.
5 Appellate Body Report, US-Upland Cotton, para. 293.
6 Appellate Body Report, Mexico – Anti Dumping Measures on Rice, paras. 137 and 138.

- C-22 -

18. In the Request for Establishment of a Panel the European Union has included a great
number of new claims, unlawfully expanding and changing the scope of this dispute as it was set
forth in the European Union's Request for Consultations.
The new claims include the following:
 European Union's claim connected with tariff line 4810 92 100 0 set out in paragraph
6 of European Un ion's Request for Establishment of a Panel and in paragraph 31 of
European Union's First Written Submission (i.e., the sixth measure);
 European Union's claim connected with provision of a mechanism, such as a "ceiling"
in paragraph 10 and 11 of European Union's Request for Establishment of a Panel;
 European Union's claim connected with a significant number of tariff lines set out in
paragraph 11 of European Union's Request for Establishment of a Panel and in
paragraphs 7 and 32 of European Union's First Written Submission (i.e., the twelfth
measure).
19. The Appellate Body confirmed that Articles 4 and 6 of the DSU do not "require a precise and
exact identity between the specific measures that were the subject of consultations and the
specific measures identified in the request for the establishment of a panel."7 However, neither the
DSU nor the WTO jurisprudence allow adding to the panel request specific measures at issue
different from those set out in the request for consultations.
20. By including new measures in the Request for Establishment of a Panel the European Union
deprived the Russian Federation of the opportunity to settle the issues related to such measures in
amicable way. What is more, by undermining due process objective of notifying the parties and
third parties of the nature of a complainant's case the European Union deprived the Russian
Federation of its right to fully prepare to defend the challenged measures at issue.
C. Measures 1 – 11
21. In paragraph 52 of the European Union's Reply to Russia's Preliminary Ruling Request with
respect to tariff lines 4810 22 900 0, 4810 29 300 0, 4810 92 300 0, 4810 13 800 9 and 4810 19
900 0 (as Russia thought to be measures 1-6 at issue) the European Union stated that: " It is clear
that the five tariff lines are listed only "by way of example "". In paragraph 54 of its Reply to
Russia's Preliminary Ruling Request the European Union stated that "The European Union' s
consultation request is plainly not limited to the tariff lines that are expressly mentioned . […] It
refers, inter alia, to groups of goods (paper and paperboard, palm oil and its fractions,
refrigerators and combined refrigerators-freezers), and it gives examples on the basis of CCT tariff
lines. Its paragraphs 3 and 4 make it clear that the individual tariff lines are listed only " by way of
example" and "for example"".
22. The Russian Federation is of the view that such explanations could be applied to the EU' s
Request for Establishment of a Panel too. According to the European Union tariff lines mentioned
are only "examples" and its Request for Establishment of a Panel "is plainly not limited to the tariff
lines that are expressly mentioned ". Consequently it refers to groups of goods. That explains why
the European Union in its Request for Establishment of a Panel operates with this concept of
unidentified goods.
III. Future application of a measure
23. The EU itself confirms that the duty challenged as measure 6 is actually applied in full
conformity with Russia's WTO commitments. Any actually applied WTO-consistent measure may
theoretically become WTO-inconsistent in the future, if its application is modified accordingly. At
the same time we do not see how the Panel could rule that, under a certain condition, the duty
designated by the EU as measure 6 will be inconsistent, the condition being Russia's possible

7 Appellate Body Report, Brazil – Aircraft, para. 132; Appellate Body Report, Appellate Body Report, US
– Upland Cotton, para. 285.

- C-23 -

future inconsistent actions, in particular, as claimed by the EU, termination of temporal application
of the duty.
24. The temporary tariff rate of 5% for the tariff line 4810 92 100 0 was established by the
Common Customs Tariff by the Decision of the Board of the Customs Union № 77 of 26 May 2014.
This information is publicly available. The European Union's Request for the Consultation dated 31
October 2014. In the view of the Russian Federation, it follows from this that the European Union
"was fully aware of the applied tariff line 4810 92 100 0 at the time of its Request for
Consultations".
25. The Decision of the Board of the Eurasian Economic Commission of 2 June 2015 № 85 which
establish the permanent duty of 5% as of 1 September 2015 also was approved before the
European Union's First Written Submission dated 27 July 2015.
26. The Appellate Body findings in US-Gambling states that " the DSU provides for the "prompt
settlement"" of situations where Members consider that their benefits under the covered
agreements "are being impaired by measures taken by another Member ". "The ‘measure' must be
the source of the alleged impairment, which is in turn the effect resulting from the existence or
operation of the ‘measure'".
8
27. Lacking substantiation of such effect from a WTO-compliant duty, in its First Written
Submission in the context of the claim on tariff line 4810 92 100 0 the European Union invents
new tests for a measure to be consistent with the commitments of a Member under GATT Article
II, namely: " sufficient guarantees of compliance with Article II " (paragraph 54 of the EU's First
Written Submission), " measures being sufficiently foreseeable to traders in the marketplace "
(paragraph 55 of the EU's First Written Submission), " necessity of reasoning that could enable
some understanding of the likelihood of an extension or the procedure for doing so" and "form of a
measure" meaning whether it is in the form of a footnote or other (paragraph 56 of the EU's First
Written Submission) and "future elements to a measure covered by Article II".
28. The European Union failed to provide any justification for these tests. The European Union
offers absolutely no legal theory, evidence, or even argumentation to explain how and why these
tests are to be proper in the context of Article II of the GATT 1994 and in WTO jurisprudence in
general.
IV. Expired duties
29. Some of the European Union's claims relate to expired duties, for example, the duties for
the tariff lines 1511 90 190 2 and 1511 90 990 2. 9 The mentioned tariff lines were subject to a
combined duty of 3%, but not less than 0,09 EUR/kg. 10 However, this duty lapsed starting from 1
September 201511 and from 1 September 2015 the applied tariff rate is 3%, 12 in full accordance
with our obligations as set forth in Russia's Schedule.
30. It should be said that certain amendments to the CCT, including the above one, were
introduced in particular due to the requests of the EU itself that we have received prior to these
proceedings and its request for consultations. Even though we believed that these duties complied
with Russia's obligations, we have satisfied these requests of the EU.

8 Appellate Body Report, US – Gambling, para.121.
9 The European Union's First Written Submission, para. 103.
10 Decision No. 52 of the Council of the Eurasian Economic Commission of 16 July 2014 "On the
determination of the import customs duty rates in the Common Customs Tariff of the Customs Union in respect
of certain goods in accordance with the obligations of the Russian Federation in the WTO", para. 2, Annex,
Footnote 31.
11 Decision No. 52 of the Council o f the Eurasian Economic Commission of 16 July 2014 "On the
determination of the import customs duty rates in the Common Customs Tariff of the Customs Union in respect
of certain goods in accordance with the obligations of the Russian Federation in the WTO" , para. 2, Annex,
Footnote 31.
12 Decision No. 52 of the Council of the Eurasian Economic Commission of 16 July 2014 "On the
determination of the import customs duty rates in the Common Customs Tariff of the Customs Union in respect
of certain goods in acco rdance with the obligations of the Russian Federation in the WTO", para. 2, Annex,
Footnote 31.

- C-24 -

31. While still insisting on that claim, the EU does concede in its own submissions that the duties
for tariff lines concerned are applicable only until 31 August 2015. They do not have any legal
effect starting from 1 September 2015.
32. The decision of a panel in respect of this measure, as it was applied before 1 September
2015, will not in our view contribute to the positive and prompt resolution of this dispute.
33. For this reason, the Russian Federation as stated in paragraph 66 of its Request for
Preliminary Ruling request the Panel to adopt the approach used by the Appellate Body in Chile –
Price Band System in respect of obtaining from ruling on this matter.
34. This also covers any other amendments to the CCT made after the date of the EU's Request
for Consultation or related to the annual changes of the CCT in accordance with the Russ ia's
Staging Matrix on implementation of tariff reduction as terms of its accession to the WTO.
V. Measures as such
35. Article II of the GATT does not incorporate any obligation not to deviate from the
type/structure or design of the duty set out in Members Schedule. Therefore, the type/structure or
design of the duty different from the Schedule does not a priori result in the application of duties in
excess of bound rates provided for in Russia's Schedule that has already been decided by the
Appellate Body. Thus, the consistency of a measure to Article II:1(a) and (b) of the GATT should
be considered in each particular case. Therefore, there is a very high threshold for a complainant
to overcome in order to prove the violation. The European Union has failed to overcome this
threshold.
36. The European Union has failed to meet the basic obligation of complaining party – to present
the case prima facie in respect of measures as such.
37. The Appellate Body in US - Shrimp II summarized the scope and content of the obligation of
the Complainant to present the case prima facie, in particular:
a prima facie case must be based on evidence and legal arguments put forward by the complaining
party in relation to each of the elements of the claim. A complaining party may not "simply submit
evidence and expect the panel to divine from it a claim of WTO-inconsistency". Nor may a
complaining party simply allege facts without relating them to its legal arguments.13
38. In fact, being unable to bring sufficient evidence that the contested measures are being
applied by the Russian Federation in a manner inconsistent with its WTO obligations, the European
Union is trying to present the case as if these measures are inconsistent as such on the basis of
their structure and design, irrespective of their actual application. This approach is contrary to the
provisions of Article II of the GATT and rulings of the Appellate Body on the matter.
39. A mere fact of application of a type of duty other than that provided for in a Member' s
Schedule does not clearly define a measure on its face. A complaining Member has to prove that
the collected duty is in fact exceeds the bound rate. This approach formulated by the Appellate
Body in Argentina – Textile and Apparel is now well-established in WTO jurisprudence.
40. Two or even twenty instances the imposed duties were in excess of bound rates cannot
serve as a basis for a far-reaching and very serious finding that the contested measures are
inconsistent with a WTO Member's obligations by virtue of their structure and design as such . A
fortiori, this conclusion cannot be automatically extended to the tariff lines in respect of which the
violation has not been proven.
41. It is well established that the measure at issue must be clear enough. When talking about
"as applied" measure it is often specified as something concrete like a group of goods, actions or
non-actions of authorities, legal acts and so on. It is well established in the WTO jurisprudence
that measures as such are very serious since the complaining party is contesting not the

13 Appellate Body Report, US –Shrimp II (Viet Nam), para. 4.23. See also Appellate Body Report, US –
Gambling, para. 140.

- C-25 -

application of measures in particular instances, but, for example, the text of the written instrument
as it is. It is for this reason that challenging measures " as such" must comply with the highest
standards of evidence that the EU failed to fulfill.
VI. Systematic Duty Variation
42. The European Union stated in paragraph 73 of its Reply to Russia's Preliminary Ruling
Request that the twelfth measure at issue " does not refer to all possible scenarios in which the
variation in the type of duty results in duties being levied in excess of bound rates below a certain
customs value. It only refers, by analogy, to the specific types of variations previously described in
connection with the seventh to eleventh measure at issue, and is further specified by the absence
of a mechanism that would prevent the ad valorem equivalents of the applied duties from
exceeding bound rates ". According to the European Union the 12 measure at issue refers to
measures 7-11. It is not clear whether the European Union argues the same matters as in
paragraphs 6 – 12 of its of Request for Establishment of a Panel dedicated to 7 -11 measures at
issue or the 12 measure at issue is something new, other then what is named as 7-11 measures at
issue.
43. Nevertheless, the European Union raises a far-reaching claim that in substance the whole
CCT applied by Russia is not in compliance with GATT Article II . In our opinion, this very serious
allegation should be substantiated by equally serious evidence and arguments. However, there are
none of them in the First Written Submission of the European Union or its Reply to Russia's
Preliminary Ruling Request.
44. Article II:I (b) of the GATT 1994 reserves the right for a WTO Member to impose duties in
any form it feels comfortable with unless they " excess of those set forth and provided " in the
Schedules.
45. The Russian Federation does not argue that in some instances where clarity is ensured a
challenged measure can refer " to a group of goods that is defined in terms of their physical
characteristics", but argues that in present case it is inadmissible to define goods by the tariff
treatment provided to these goods. Such a " specification" is defected by its nature. Instead of
making a claim that certain duties are applied to certain goods and thus the goods are granted
certain treatment and presenting the evidence of its WTO inconsistency, the EU makes a
presumption that certain treatment is a priori WTO-inconsistent and there is no need to provide
evidence how that treatment violates Russia's obligations in each particular instance.
46. In paragraph 48 of its Reply to Russia's Preliminary Ruling Request the EU comes to a
conclusion that "Russia does not seem to dispute the fact that it does not apply " a ‘ceiling', or any
other mechanism".
47. According to this presumption of the EU and taking into account passages just quoted from
paragraph 73 of the EU's Reply to Russia's Preliminary Ruling Request, in particular the words
that the issue " is further specified by the absence of a mechanism" , the EU indeed challenges all
tariff lines of the CCT. In alternative, the EU has not yet decided what exactly it wishes to
challenge.
48. The list of measures (if it actually can be called "a list") is open-ended and not exhaustive,
constitutes only " examples". It is worth noting that the European Union itself recognizes this
deficiency.
49. Due to the fact that the precise content of the measure at issue is ambiguous, it is
understandable that the European Union is unable to determine the type of the contested
measure. In an attempt to characterize the Systematic Duty Variation the European Union in
paragraph 137 of its First Written Submission enumerates almost all types of measures elaborated
in the WTO jurisprudence. Among them are administrative practice, policy, concerted action or
practice, consistent practice, particular methodology, non-binding measure, "unwritten measure.
However, the question remains open as to which of these types of measures the contested
measure belongs to. Referring to the 1-11 measures as examples, but not limited to, the European
Union make its claims open-ended.

- C-26 -

VII. Mechanism such as ceiling
50. Paragraph 11 of the EU's Request for Establishment of a Panel sets out the claim of the EU
regarding the non-application by Russia of some mechanism while applying some types of duties.
In its First Written Submission the EU, repeats the same claim that without providing for a
mechanism as described by the EU Russia applies some of its duties of some types inconsistently
with some of its tariff commitments.
51. Moreover, there is no mentioning in paragraphs 1(a) and 1(b) of Article II of the GATT of the
type, design and structure of the duty. Neither there is any requirement about any sort of a
mechanism. Consequently the European Union is trying to create a new test of consistency with
Article II of the GATT and to extend WTO obligations of WTO Members.
52. Furthermore, this claim of the European Union not only lacks the adequate identification of
the measures at issue due to its vague scope in the European Union's Request for Establishment of
a Panel; it was never covered by the EU Request for Consultations, either. What is more, it also
goes beyond Article II:1(a) and (b) of the GATT 1994, because this claim is not about the level of
the applied duties, it is about the application of some abstract mechanism additional to simple
establishment of levels of applied duties.
VIII. Paragraph 313 of the Working Party Report
53. The European Union failed to provide evidence that measures applied by the Russian
Federation are inconsistent with Article II:1(b), first sentence, of the GATT 1994, since calculations
provided for by the Complainant as evidence of violation of Russia's WTO obligations do not meet
the requirements as provided for in paragraph 313 of the Working Party Report.
54. The mechanism described in paragraph 313 of the Working Party Report sets out that ad
valorem equivalent of the specific duty rate for each tariff line should be calculated based on the
average customs value. In addition the calculations under this mechanism should be performed as
follows:
- Data for the calculations should be taken from a three-year period, determined based on the
trade data from a recent five-year representative period and excluding data for years with the
highest and lowest trade for that period;
- Data on trade with countries or territories with which the Russian Federation had a Customs
Union or free trade agreement would be excluded from the calculation.
55. In this regard, the European Union failed to provide the necessary evidence to substantiate
its claims, i.e. the data of average customs value from a three-year period and corresponding
calculation demonstrating that the alternative specific duty is higher than the ad valorem bound
rate.
56. As the Russian Federation has explained in detail in its first written submission, given the
absence of any other mechanism in the WTO Agreement, the mechanism set out in paragraph 313
of the Working Party Report setting out the terms of Russia's accession to WTO is the only
applicable in this case.
57. The paragraph 313 of the Russia's Working Party Report provides a mechanism for ad
valorem equivalent of the specific duty rate for each tariff line in respect of which combined duty is
applied by Russia to be calculated. While, on the one hand, this is a commitment of the Russian
Federation, on the other hand in certain way it is a commitment of all Members in respect of the
Russian Federation.
58. Paragraph 313 is part of paragraph 1450 of the Working Party Report, which states: "the
Working Party took note of the explanations and statements of the Russian Federation concerning
its foreign trade regime, as reflected in this Report. The Working Party took note of the
commitments by the Russian Federation in relation to certain specific matters which are
reproduced in paragraphs […], 313, […]. The Working Party took note that these commitments

- C-27 -

had been incorporated in paragraph 2 of the Protocol of Accession of the Russian Federation to the
WTO".
59. In accordance with paragraph 2 of the Protocol of Accession of the Russian Federation: "This
Protocol, which shall include the commitments referred to in paragraph 1450 of the Working Party
Report, shall be an integral part of the WTO Agreement".
60. Thus, paragraph 313 establishes the mechanism that a priori guarantees that should the
Russian Federation chose to apply a combined duty rate the ad valorem equivalent of the specific
duty rate for each tariff line should be calculated in accordance with this procedure in order to
establish whether specific element of the duty exceeds the ad valorem equivalent provided for in
the Schedule of Russia. This equally applies to Russia when it decides to adopt duties and other
Members when they are willing to check the ad valorem equivalent of Russian combined duties.
The way paragraph 313 is formulated states that this procedure fully ensures the specific duty not
to exceed the ad valorem equivalent.
61. WTO Members agreed that it is the mechanism set forth in paragraph 313 of Russia' s
Working Party Report that should be used to calculate ad valorem equivalent of a specific duty and
to establish whether such duty exceed or equals the ad valorem duty. Any finding to the effect
that the combined duty rate exceeds those provided in the Russian's Schedule should be based on
both the evidence and arguments following from the results of application of this mechanism. The
First Written Submission of the European Union contains neither evidence nor arguments to this
extent.
IX. Conclusion and Request for Findings
62. For the reasons provided above, the Russian Federation requests that:
a. in respect of the EU's claims covered by Russia's Request for Preliminary Ruling the Panel
finds that such claims fall outside Panel's terms of reference;
b. alternatively if the Panel finds that the EU's claims covered by Russia's Request for
Preliminary Ruling fall within Panel's terms of reference and in respect of such EU's claims
specifically indicated therein the Panel finds that the EU failed to establish prima facie case;
c. alternatively if the Panel finds that the EU's claims covered by Russia's Request for
Preliminary Ruling fall within Panel's terms of reference and in respect of all other remaining claims
of the EU the Panel finds that the EU failed to provide the evidence for all such claims raised in
these proceeding, and
63. The Russian Federation's measures are consistent with the obligations of the Russian
Federation under the WTO Agreement, in particular Article II:1 (a) and (b) of the GATT 1994.

- C-28 -

ANNEX C-4
SECOND PART OF THE INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS
OF THE RUSSIAN FEDERATION
I. Introduction
1. In this integrated executive summary, Russia will summarize the facts and arguments
presented to the Panel in its Second Written Submission, its opening and closing oral statements
at the second substantive meeting, its responses to the Panel's questions and its comments on the
EU's responses to the Panel's questions in the context of the second substantive meeting.
II. The sixth measure at issue
2. The duty that constitutes the sixth measure at issue has never been applied in the form that
is inconsistent with Russia's Schedule.
3. The EU claims that "the Panel should find that the sixth measure at issue, from the vantage
p
oint of the time of the Panel's establishment, violates Article II:1(a) of the GATT 1994 until
31 December 2015, and violates Article II:1(b) and consequently also Article II:1(a) of the
GATT 1994 as of 1 January 2016"1.
4. Despite the fact that the duty of 15% has never been applied by Russia, the EU raised a
violation claim related to the sixth measure at issue.
5. Under Article II of the GATT products described in a Member's Schedule shall "on their
importation into the territory to which the Schedule relates […] be exempt from ordinary customs
duties in excess of those" set out in the Schedule.
6. The Russian Federation notes that by "ordinary customs duty" the Appellate Body means " a
charge imposed on products, on their importation"2. There are two significant elements in the
definition of "ordinary customs duty" – products and the moment of their importation. In this
regard, the Appellate Body concluded that "a key criterion for a charge to constitute an ordinary
customs duty under Article II:1(b) is that it accrue at the moment of importation"3. In Australia –
Salmon the Appellate Body also concluded that "a measure at issue can only be a measure that is
actually applied to the product at issue"4.
7. Accordingly, the definitions of the terms "measure" and "ordinary customs duty" in this
context are strikingly similar. The duty may constitute the ordinary customs duty, that is a
measure within the meaning of Article II:1(b) of the GATT, only if it is actually applied to the
products at the moment of their importation. This is not in any way related to arguments made by
the EU about actual imports being present or absent. What the Appellate Body says is "that the
duty should be imposed on goods at the moment of importation should such importation happen".
Should the importation of the products at issue happen from the EU, they will be subject to a duty
that is fully consistent with Russia's tariff commitments, which is confirmed by the EU.
8. The EU produced no evidence that the goods of the EU were actually granted treatment less
favourable than provided for in Russia's Schedule. Moreover, the EU has agreed that Russia has
never applied the duty in excess of its bound rate in relation to the 6th measure at issue. Thus,
Russia has never acted in a WTO-inconsistent manner.
9. The EU did not show any link between temporary nature of a particular duty and GATT
Article II. By the logic of the EU any temporary duty, irrespectively of its rate and tariff
commitments of any Member, would be inconsistent with GATT Article II as the temporary nature

1 The EU’s Second Written Submission, par. 41.
2 Appellate Body Report, China – Auto Parts, para. 153.
3 Ibid., para. 153.
4 Appellate Body Report, Australia – Salmon, para. 103.

- C-29 -

will not provide the traders with the predictability as the EU argues.
III. Measures 7 – 11 at Issue
10. Regarding the seventh to eleventh measures at issue the EU's claims are not about the level
of applied duties, but about the difference in structure and design of a duty as provided in Russia's
Schedule and the CCT, as well as the "lack" of "mechanism such as ceiling".
11. The fact that the EU challenges the structure and design of a duty rather than the duty itself
is confirmed by numerous statements made by the European Union in the course of these
proceedings.
12. Thus, the EU in its First Written Submission stated that: "[t] he claims related to combined
applied duties described in sections C and D, just like its claims in section B above, address the
duties "as such", directly on the basis of their structure and design" 5, "[t]he analysis of the
conformity of th e duties at issue with Articles II:1(b) and II:1( a) of the GATT 1994 can be
performed sufficiently well simply on the basis of the way the duties are designed "6, "[a]s has
been clarified, the extent to which the design and structure of the duties l eads to a violation of
Articles II:1(b) and II:1(a) of th e GATT 1994 depends entirely on the customs value of an
imported product, in some cases expressed in combination with another characteristic of the
product such as its volume or weight, and can be easily deduced in advance. These claims
therefore do not de pend on evidence of specific transactions in which duties have actually been
levied in excess of bound rates"7.
13. The EU confirmed that measures 7 – 11 constitute a part of the SDV in its responses to
Question №72 from the Panel following the first substantive meeting. According to the EU, one of
the key features of the SDV is that "neither the CCT nor any other legal instrument or practice of
the Russian Federation, the Customs Union or EAEU bodies provide for a mechanism that would
ensure that the ad valorem equivalent of the applied duty does not surpass the bound ad valorem
rate"8.
14. These EU's challenges are unsupported. The application of duty with a type/structure other
than that provided for in Russia's Schedule is not prohibited, and Russia provided a relevant
paragraph of its Working Party Report related to the mechanism for calculation of ad valorem
equivalent of specific duty, which was agreed by all WTO Members, including the European Union.
15. As the EU said in paragraph 53 of its Second Written Submission: "whenever the customs
value is below a certain threshold or "break-even price", the specific elements of the duties will be
levied, and the levied duty will exceed the bound ad valorem duties". This explanation makes all
claims of the EU in respect of ceiling mechanism meaningless. And the conclusion to be made is
that in no case a WTO Member might apply a specific duty in respect of goods the duties for which
are bound in ad valorem format. There can always be one shipment whose customs value will be
practically zero: for example, in case of affiliated companies. So no matter whether a Member has
a ceiling mechanism in place or not, any specific duty will be WTO-inconsistent. However, the
Appellate Body has never said that and, moreover, explicitly allowed Members to depart from the
Scheduled type of a duty.
16. Moreover, regarding measures 7, 8, 10 and 11 currently the duties are applied in exactly the
same format that is set out in Russia's Schedule. The EU agrees that such amendments were
made, however it continues to insist that the Panel should make a finding that the challenged
measures are inconsistent with Article II:1 of the GATT.
17. Article 19.1 of the DSU requires that: "[w]here a panel or the Appellate Body concludes that
a measure is inconsistent with a covered agreement, it shall recommend that the Member
concerned bring the measure into conformity with that agreement".
18. The Panel in US – Poultry concluded that:

5 The European Union’s First Written Submission, para. 122.
6 Ibid., para. 123.
7 Ibid., para.124.
8 The European Union’s First Written Submission, para. 129.

- C-30 -

 Article 19.1 of the DSU is explicit concerning the recommendation a panel is to make in the
event it determines that a measure is inconsistent with a covered agreement: "it shall
recommend that the Member concerned bring the measure into conformity with that
agreement." (footnotes omitted). However, given that the measure at issue, Section 727
has expired, we do not recommend that the DSB request the United States to bring the
relevant measure into conformity with its obligations under the SPS Agreement and the
GATT 1994.9
IV. Applicability of Paragraph 313 of the Working Party Report
19. According to the European Union, if a WTO Member applies the duty of type, structure and
design different from those set out in the Member's Schedule without providing some mechanism
"such as ceiling", it will always violate Article II:1(a) and (b) of the GATT 1994.
20. The European Union claimed that "[t]he applied and the bound duty must be compared "10
and that "the important question for Article II:1(b) is not which "calculation methodology" we use,
but simply whether the appli ed duty exceeds the bound duty, even in a single hypothetical
transaction"11.
21. On the one hand, the EU states that this is incorrect "that the covered agreements entitle
Members to use any mechanism for calculating ad valorem equivalents of a specific duty, as long
as it is WTO-consistent"12. On the other hand, the European Union failed to point to any
methodology for calculating ad valorem equivalent of specific duty that would exist within WTO
framework.
22. If the WTO Agreement requires Members to use some particular mechanism for calculating
ad valorem equivalents of a specific duty, the EU failed to specify this mechanism and the legal
basis for its application. If there is no mechanism provided for in the WTO law, and in Russia's
view there is no such mechanism, there is only one mechanism that must be applied, i.e., the
mechanism set out in paragraph 313 of Russia's Working Party Report.
23. At the same time, both in First and Second Written Submissions the EU provided its
"mathematical" calculations in order to support its claims that the duties applied by Russia exceed
the bound duty. In order to establish that something is in excess, even for hypothetical situations,
one has to use some sort of methodology.
24. When the EU says that something is in excess, it bases its conclusions on some sort of
calculations. Even 2 = 1+1 is a calculation methodology. At the same time we have to agree on
the terms so we would not end up with 1+1 equaling 3 or 4. We have explicitly agreed on such
terms with the entire Membership when we were acceding to the WTO. These terms are set out in
paragraph 313 of the Working Party Report. This paragraph is not about giving more or less rights
to Russia or other WTO Members under Article II of the GATT, as the EU suggests. It is about how
one should convert specific element of a combined duty into its ad valorem equivalent and thus
check whether a duty is in excess of the bound duty. The EU failed to provide the Panel and the
Respondent with the evidence of required calculations, because the EU preferred its own
methodology.
25. As Canada stated, the methodology described under paragraph 313 of the Working Party
Report was requested by WTO Members to calculate "the equivalency between the specific and ad-
valorem portions of mixed duty rates "13. "Paragraph 313 is a methodology for adjusting the
specific portion of mixed duty rates. Given that a number of Russian tariff lines remained with
mixed tariffs, it was important to have a commitment with respect to the methodology to measure
the equivalency of both parts of the tariff". 14
26. The EU even appears to suggest that paragraph 313 of the Working Party Reports is

10 Ibid., para. 70.
11 The European Union’s Second Written Submission, para. 72.
12 The European Union’s Second Written Submission, para. 69.
13 Canada’s Responses to Questions from the Panel to the Third Parties, para. 26.
14 Canada’s Responses to Questions from the Panel to the Third Parties, para. 30.

- C-31 -

inconsistent with Article II of the GATT. We believe that paragraph 313 is a methodology that is
consistent with Russia's WTO obligations and thus it does not modify our obligations under
A
rticle II of the GATT. Under Article II Russia should not apply duties in excess of bound rates.
Paragraph 313 is the mechanism to establish this "excess".
27. The provisions of paragraph 313 of the Working Party Report are not distinct from
Article II:1(a) and (b) of the GATT 1994 in the context of the duties applied by the Russian
Federation. Moreover, they inform the content of Russia's obligations under Article II:1.
28. The EU' s argument that paragraph 313 of the Working Party Report may only be applied to
combined duties set out in Russia's Schedule is unfounded. Nothing in the wording of paragraph
313 or relevant paragraphs of the Working Party Report supports this argument. In this respect,
paragraph 313 refers only to "goods subject to a combined duty" and not to the bound rates set
out in Russia's Schedule.
29. If Russia's Schedule contains a combined duty in respect of a particular product then the
duty applied in accordance with the Schedule is a priori WTO consistent and does not require any
calculation of its ad valorem equivalent. The ad valorem equivalent is clearly necessary when
Schedule of a Member provides for ad valorem duty while that Member chooses to apply a specific
or a combined duty.
30. In order to justify the inapplicability of this paragraph to the combined duties applied by
Russia, the EU raised the issue of the potential consequences of application of this paragraph.
31. In our view, the consequences of application of this paragraph have no bearing on the issue
of its applicability. At least we are not aware of such a technique of interpretation of international
treaties under the Vienna Convention on the Law of Treaties or jurisprudence developed by the
Appellate Body in this respect.
32. The EU claims that the word "alternative" supports its position. However, the EU makes a
far-reaching conclusion from the word that states nothing more than the fact that combined duties
are alternatives to ad valorem or specific duties. In case of paragraph 313 combined duties applied
by Russia are indeed alternatives to ad valorem duty rates for tariff lines in the Schedule. There is
no contradiction in that respect between the text of paragraph 313 of Russia's Working Party
Report and Russia's statement on the scope of this paragraph.
33. The EU also bases its conclusions of inapplicability of this paragraph also on the presumption
that this would be a violation of Article II. We do not consider provisions of our Working Party
Report to be in any way WTO-inconsistent. In any case paragraph 313 of the Working Party Report
forms part of the terms of Russia's accession to the WTO agreed by all Members, including the EU.
34. Russia does not believe that there is a way that might invalidate paragraph 313 and will
make it inapplicable for the purposes it was originally designed for – that is, calculation of ad
valorem equivalents of a specific element of all combined duties applied by Russia. The fact that
the EU prefers a different methodology does duties does not decrease the applicability of this
particular provision of the Working Party Report for any purpose, including for the purposes of this
dispute.
V. The SDV
35. With respect to the 12 th measure referred to as the SDV, the EU failed to meet the higher
requirements for challenging the measure at issue, as such.
36. The EU claims that Russian Federation in a systematic manner provides certain tariff
treatment that is WTO inconsistent. From the statements of the EU, which tend to contradict each
other, we managed to gather that there are two elements to those challenges. The EU seems to be
claiming: first, the tariff treatment at issue constitutes an unwritten practice of Russia to apply
duties that are different in their type/structure from those that are set out in Russia's Schedule
and second, all of those duties result in application of duties in excess of those set out in Russia's
Schedule.

- C-32 -

37. In order to prove its position the EU produced an Illustrative list which cannot, however, be
considered as an evidence of anything, except for the fact that Russia does apply duties.
38. The EU tries to establish likeliness between the case of the DIEM treatment considered in
Argentina – Textiles and what the EU calls the SDV. However, this is quite a stretch.
39. Argentina provided for a specific mechanism set out in a separate written instrument. This
mechanism was applied to a limited number of goods set out in that instrument. This mechanism
constituted a set of rules in accordance with which the level of an applied duty was established. All
these characteristics and especially the last one, allowed to state that this was a single measure
applied to various products.
40. The EU tries to cover with the SDV umbrella the measures that are individual and by their
nature do not possess any similar characteristics, except for the fact that they are duties and they
are set out in the CCT. However, there are thousands of other measures that possess the same
characteristics, actually, the whole CCT.
41. The EU then tries to attribute to these individual measures another characteristic in order to
support its claims that there is a single SDV measure. It was summarized by the EU in paragraph
48 of the EU's Opening Statement – the duty exceeds the ad valorem rate provided in the
Schedule.
42. Without prejudice to Russia's position that it does not agree with such qualification of the
duties applied by Russia, we have to note that we disagree that it is appropriate to use WTO-
inconsistency as a characteristic that would allow individual applied duties to be joined together in
a single SDV measure. Russia would like to draw the Panel's attention to paragraph 33 of the EU's
Opening Statement at the second substantive meeting where it elaborates "three closely
connected types" of tariff treatment subject to the challenge. According to paragraph 11 of the
EU's Request for Establishment of the Panel the EU challenges "the type/structure of duty that
varies from the type/structure of duty recorded in the Schedule in a way that leads to the
application of duties in excess of those provided for in the Schedule for those goods whenever the
customs value is below a certain level, in one of the two ways described above" (in relation to
measures 7-11 at issue). The tariff treatment that the EU describes through tariff treatment of
type 2 in footnote 82 in the EU's Second Written Submission as well as paragraph 47 of its
Opening Statement is a new development that was not provided for in the EU's Request for
Establishment of the Panel. For this reason it should not be considered by the panel.
43. The EU failed to establish that what it refers to as the "whole" or the SDV is a separate
measure and that it actually exists. We would repeat that Argentina – Textile is not a relevant case
in this context. It dealt with a mechanism or a system of establishing the level of a duty. What the
EU challenges in this dispute is not a system or a mechanism. It challenges individual duties as it
became clear after these statements of the EU. Neither the CCT nor any other instrument of
Russia, or its unwritten practice, which does not exist, requires an application of a mechanism of
calculation of the level of the duty that is similar to Argentina – Textiles, other than the one
provided for in paragraph 313 of the Working Party Report. The CCT itself establishes individual
duties and in that respect each duty should be considered as an individual measure.
44. The EU uses a reverse logic when it comes to the issue of the SDV. It presumes that if the
inconsistency is found in respect of one duty that differs by its type/structure from the one set out
in Schedule, this means that all duties that are different are inconsistent.
45. The SDV, in the EU's view, is a measure inconsistent with Russia's WTO commitments, while
both parties agree that mere difference in structure of applied and bound duties does not result in
violation of the WTO Agreement. So the question is which differences constitute a WTO
inconsistency. In our view, that should be determined on a case by case basis. General conclusion
that the EU seeks would mean that finding of inconsistency of one applied duty would
automatically mean that any other duty that is different in its structure from the bound structure is
WTO inconsistent. As the EU noted in paragraph 102 of its Second Written Submission – the SDV
consists of individual instances. Even though we do not agree with the concept of the SDV, we
agree that the duties are individual. For each individual duty the inconsistency should be
established based on individual set of evidence. However, the EU in it First Written Submission

- C-33 -

stated that it does not challenge individual applied duties in the context of the SDV. Even the basic
mathematical approach that the EU uses does not allow to determine that the sum of elements is
WTO inconsistent without determination that the elements are WTO inconsistent.
46. The Russian Federation fully agrees with paragraph 12 of Brazil's third party written
submission that "a complainant challenging an unwritten measure, comprised of different allegedly
violations of the WTO rules, has to adduce sufficient evidence on the existence and precise content
of this measure, on how its different components operate together as part of a single measure
and how a single measure exists as distinct from its components".
47. While the EU's challenge is aimed at the SDV " as a single general measure", all evidence
provided by the EU relates to its instances. Such evidence does not correspond to the ambitions
challenge the EU is bringing against the SDV as such. Just like providing a few examples of
application of a measure cannot alone constitute a challenge of that measure as such, providing
evidence of WTO inconsistency of such examples cannot serve as the proof of WTO inconsistency
of the measure challenged.
48. As the United States noted: "a mere showing of repeated actions is not sufficient to establish
the existence of a rule or norm of general and prospective application"15. The EU failed to provide
any evidence to show that the duties believed by the EU to be covered by the SDV-claims are
repeated actions and are linked together. We believe that all duties included in the CCT are
separate from each other. The only common characteristic that they all possess is that they are set
out in one document – the CCT. We believe there is no justification, at least the EU failed to
produce any, why certain duties set out in the CCT, which we are still uncertain about, constitute a
separate administrative practice or more general policy separate from other duties.
49. Another EU's argument is that the SDV is subject to frequent changes and that is why it is a
moving target. The Russian Federation is of the view that the failure of the complainant to specify
the measure, its precise content and provide evidence of its inconsistency by reference to this or
any other argument cannot be justified. Nothing precluded the EU to specify all tariff lines through
the CCT which in its view violate Russia's obligations, in particular Article II of the GATT,
considering the fact that the applied duty rate of tariff lines set out in the CCT is publicly available
information.
VI. Conclusion and Request for Findings
50. The Russian Federation respectfully requests that:
1. The Panel considers the measures 7 – 8, 10 and 11 in the amended form and makes a
finding that these measures are consistent with Russia's obligations under GATT Article II:1.
2. The Panel makes a finding that measure 6 is WTO-consistent. Alternatively, that the
Panel considers the measure 6 in the amended form and makes a finding that this measure
is consistent with Russia's obligations under GATT Article II:1.
3. The Panel makes no ruling in respect of the so-called SDV. Alternatively, that the
Panel finds that the EU failed to provide sufficient evidence in respect of existence of so-
called SDV and its inconsistency with Russia's WTO commitments.
4. The Panel finds that the EU failed to provide sufficient evidence that the duties applied
by the Russian Federation of the type/structure/design different from those set out in
Russia
's Schedule, including those identified under measures 6-12 as described by the EU,
are inconsistent with Russia's WTO commitments.
5. The Panel finds that the measures 6 – 12 are not inconsistent with the commitments
of the Russian Federation under the WTO Agreement, including GATT Article II:1.

- D-1 -

ANNEX D
ARGUMENTS OF THE THIRD PARTIES
Contents Page
Annex D-1 Executive summary of the arguments of Australia D-2
Annex D-2 Executive summary of the arguments of Brazil D-4
Annex D-3 Executive summary of the arguments of Canada D-7
Annex D-4 Executive summary of the arguments of Chile D-10
Annex D-5 Executive summary of the arguments of Colombia D-11
Annex D-6 Executive summary of the arguments of Japan D-13
Annex D-7 Executive summary of the arguments of Norway D-17
Annex D-8 Executive summary of the arguments of Ukraine D-21
Annex D-9 Executive summary of the arguments of United States D-23

- D-2 -

ANNEX D-1
EXECUTIVE SUMMARY OF THE ARGUMENTS OF AUSTRALIA
I IDENTIFICATION OF SPECIFIC MEASURES AT ISSUE PER ARTICLE 6.2 OF THE DSU
DOES NOT REQUIRE EACH INSTANCE OF A BREACH AT ISSUE BE CITIED.

1. Australia is firstly of the view that the European Union's request sufficiently serves these
dual purposes of defining the scope of the dispute, and also the purpose of providing notice to the
parties and third parties of the nature of the complaint
1.

2. Secondly, Australia is of the view that Article 6.2 of the Understanding on Rules and
Procedures Governing the Settlement of Disputes (DSU) does not require that each instance of a
measure at issue be cited, provided that some other method has been used that reasonably directs
the defending Member to the instances of inconsistency.

3. The EU has provided reasonable ways of directing Russia to the instances of inconsistency in
the circumstances. These include the EU's description of the measures in dispute in its claim, and
the EU's provision of an "Illustrative List" setting out relevant examples. These examples show
that the measures in question produces inconsistent outcomes in at least some cases, and are
likely to do so in others.

4. The Appellate Body in EC — Selected Customs Matters provides there is nothing in the DSU
that would prevent action being taken against a system of a Member as a whole2. It follows that it
is open for the EU to bring a challenge against Russia regarding a systematic problem with its tariff
system.

II ARTICLE II. 1(b) OF GATT PROHIBITIS EVEN THE SMALLEST AMOUNT OF
INCREMENT IN ORDINARY CUSTOMS DUTIES OVER THE AMOUNT PRESCRIBED IN A
MEMBER'S SCHEDULE

5. Australia agrees with the view of the EU that all that is required in order to find a violation of
both Articles II:1(a) and II:1(b) of the GATT 1994 is the existence of ordinary customs duties that
are in excess of those provided in the Schedule
3.

6. A Member's customs duties must not exceed the duties provided for in its Schedule. This is
a basic principle of the GATT 1994, and is one of the foundations upon which the agreement rests.

7. Australia supports an interpretation of 'in excess of' in Article II. 1(b) of the GATT 1994 as
referring to even the smallest amount of increment over the amount inscribed in the schedule.
This accords with the plain reading of Article II:1(b) of GATT, the object and purpose of the GATT
1994 in providing for 'bound' tariff limits and the interpretation of this provision by the Appellate
Body in Argentina —
 Textiles and Apparel. The Appellate Body providing the principal obligation in
the first sentence of Article II:1(b) requires a Member to refrain from imposing ordinary customs
duties in excess of those provided for in that Member's Schedule4.

8. Australia considers that under the Vienna Convention, as a matter of treaty interpretation,
the Panel in interpreting "in excess of" in Article II:1(b) the GATT 1994 can draw from the text and
the interpretation of Article III:2 the GATT 1994. The Appellate Body in Japan – Alcoholic
Beverages II explained that the terms "in excess of" within Article III:2 meant that "[e]ven the
smallest amount of "excess" is too much"5.

9. It follows that if the duties Russia has imposed were in excess of those provided in its
Schedule it would be in breach of its WTO obligations.

1 These dual purposes were provided by the Appellate Body in US — Carbon Steel, paragraph 126.
2 Appellate Body Report, EC — Selected Customs Matters, paragraph 166.
3 First Written Submission of the European Union, paragraph 38.
4 Appellate Body Report, Argentina — Textiles and Apparel, paragraph 46.
5 Appellate Body Report, Japan – Alcoholic Beverages II, page. 23.

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III TEMPORARY REDUCTION OF OTHERWISE EXCESSIVE DUTIES DOES NOT ACCORD
WITH ARTICLE II.1(a) OF GATT 1994

10. Australia supports the position taken by the EU that a rate of duty which exceeds the bound
rate, and is temporarily reduced does not accord with the requirements of Article II:1(a) of the
GATT 1994.

11. Australia notes the importance of foreseeability for traders operating in the marketplace,
and in accordance with the past jurisprudence on this issue, notes the potential of deleterious
effects on competition of a regulated rate of duty which exceeds the bound rate, albeit which is
temporarily reduced
6.

IV CLAIMS MAY BE MADE "AS SUCH" AND ARE NOT LIMITED TO MERELY CHALLENGING
INDIVIDUAL INSTANCES OF THE APPLICATION OF DUTIES.

12. Australia agrees with the EU's ability to make claims "as such", directly on the basis of the
structure and design of instruments containing rules or norms of general and prospective
application, and for claims not to be limited to merely challenging individual instances of the
application of the duties ("as applied") as provided in paragraph 122 of its First Written
Submission.

13. This ability to make a claim "as such" is supported by the Appellate Body in Argentina-
Import Measures7.

14. Allowing claims against measures "as such" serves the practical purpose of preventing future
disputes by allowing the root of WTO-inconsistent measures to be eliminated per the Appellate
Body in US – Corrosion-Resistant Steel Sunset Review
8.

6 Panel Report, EC-IT products, at paragraph 7.761.
7 Appellate Body Report, Argentina-Import Measures, paragraph 5.101.
8 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, para 82.

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ANNEX D-2
EXECUTIVE SUMMARY OF THE ARGUMENTS OF BRAZIL
1. In Brazil's view, the legal analysis to be performed by the Panel in this dispute should follow
a two-tiered sequence. First, the Panel is required to make a determination concerning the
relevant bound tariffs the respondent has committed to respect according to its Schedule of
Concessions. In other words, the Panel's task is to determine whether the changes introduced by
Russia to its Schedule should be considered a valid rectification falling under the scope of the
Decision on Procedures for Modification and Rectification of Schedules of Tariff Concessions
("Decision")
1. Based on its findings on this matter, the Panel will then have to decide, on a second
level, on the consistency of the challenged tariffs with these commitments. Brazil will address
these matters separately.
2. The first matter at issue relates to the procedures available to Members to introduce purely
formal rectifications to their schedule which do not alter the substantive scope of the
commitments. In the present case, the European Union argues that the modifications put in place
by Russia within the framework of the Decision amounted to substan tial changes of bound tariffs,
and therefore could only be implemented through the mechanism of modification of schedules
established by article XXVIII of GATT 1994. Moreover, in the complainant 's view, as those
modifications were objected by a Member, the y could not be considered effective. C onsequently,
the original text of the Schedule should prevail in the assessment of the consistency of the tariffs
applied or expected to be applied by Russia.
3. In turn, Russia submits that the modifications aimed at rectifying an error made during the
consolidation of the Schedule and in the transposition of tariff lines from HS 1996 to HS 2007, and,
therefore, should be considered of a technical nature, thus falling under the scope of application of
the Decision.
4. On this topic, two determinations are particularly relevant. First, the Panel is required to
find, based on an objective assessment of the facts available, whether or not Russia has properly
established that the authentic text of its Schedule is the one that comprised the proposed
rectifications, which provide for additional specifications and higher bound rates for some HS
subheadings. Second, the Panel will have to establish what is the legal weight to be accorded to
the European Union's objection to the requested "modifications and rectifications" pursuant to
paragraph 3 of the Decision.
5. Brazil believes that this analysis has to be undertaken under the premise that changes in
Members' Schedules of Concessions are not without consequences. The respect of Members to
their bound tariffs is one of the cornerstones of the multilateral trading system. In this sense, it is
of paramount importance to preserve the "balance of concessions carefully negotiated between
members" as the Appellate Body stated in Argentina – Textiles and Apparel
2, making sure that the
mechanism of modification and rectification established by Decision is properly applied.
6. Brazil understands that the Decision does not elaborate on the kind of modification or
rectification that can be made through its mechanism. However, a key requirement that can be
identified in this text is that the change sought by a Member does not "alter the scope" of the
relevant concession. Therefore, rectifications of a "purely formal character" could be made through
the mechanism provided for in the Decision. Changes that affect trade opportunities afforded by a
given concession, on the other hand, alter the scope of the relevant concession, and, as such,
would amount, in Brazil's view, to a withdrawal or modification of a concession within the meaning
of Article XXVIII. Any kind of modification deemed to introduce substantial changes concerning
bound tariffs in the WTO should follow the procedure set forth in Article XXVIII of the GATT 1994,
so as to guarantee a broad participation of the Membership in the process and to preserve the
previously mentioned balance of concessions.

1 Document L/4962.
2 Appellate Body Report, Argentina – Textiles and Apparel, para. 47.

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7. The same rationale should also be considered when assessing the implications of
reclassification of goods into new tariff lines that may result in bound tariffs higher than those
initially agreed upon by Members. As clarified by the Appellate Body in EC – Chicken Cuts 3,
reclassification resulting in the imposition of higher duties than those originally established in a
Member's Schedule of Concessions violates Articles II:1(a) and (b) of the GATT 1994.
8. Once this first matter is assessed and the relevant bound tariffs are properly established, the
Panel should then be able to rule on the consistency of the challenged measures v is-à-vis those
commitments.
9. According to the European Union, there are three different factual situations that have to be
addressed in the present dispute and that result in customs duties being levied in excess of bound
tariff rates, thus violating Articles II:1(a) and (b) of the GATT 1994. The first situation is that of
ad valorem duties currently in place and that exceed the bound rates; the second is that of
ad valorem duties that are temporarily suspended, but are expected to be charged in excess of the
bound rates; and lastly those situations in which the application of combined types of duties result
in excess of bound rates.
10. Brazil would like to stress that whenever it is established that the applied tariff by a Member
results in duties being levied in excess of the bound tariffs, a breach of Article II occurs and must
be redressed. In Brazil´s view, this would be the case regardless of the specific design and
structure of the bound and applied duties. Brazil agrees with the Appellate Body in Argentina –
Textiles and Apparel
4 that a Member enjoys a degree of discretion concerning the types of duties it
applies, as long as the application of these duties do not result in tariffs that would surpass the
equivalent tariff commitments enshrined in the respective Schedule of concession. In this case,
however, in order to establish a violation of Article II, the complainant is required to demonstrate
that the application of the relevant duties will necessarily lead, in all or in certain circumstances, to
the imposition of tariff in excess of those provided in the Member's Schedule, thus denying imports
the treatment to which the Member has committed.
11. A more complex question arises in respect of Article II and duties that are not currently
applied but are expected to be charged in the future in excess of the bound rates. In order to
make a proper assessment, the Panel will have to make a determination concerning the specific
terms of the future application of the tariffs. If it is correct that the challenged tariffs mentioned in
the present case, although suspended, will necessarily be applied and will result in excess of the
bound rates in a certain timeframe, then it should fall within the Panel's terms of reference. Brazil
would like to recall that it is well recognized that a measure may be challenged under the WTO
dispute settlement rules even when they are not yet in force, provided that the measure existed
by the time the Panel request was made and its entry into force is certain and automatic at a
future date. In addition, as Japan recalled in its third-party submission, two cases, EC – IT
Products and Chile – Alcoholic Beverages, have concluded, respectively, that "the duty suspension
measure does not eliminate the inconsistency with Article II.1(a)" and that in cases where the law
is certain and definitive the panel considered "it appropriate to examine the law to determine its
consistency".
12. Regarding the European Union claims that Russia engaged in a "systematic duty variation"
that should be considered, as such, a breach of Article II:1(a) and (b) of the GATT, Brazil agrees
with the view put forth by the other third parties in this dispute that a complainant challenging an
unwritten measure, comprised of different allegedly violations of the WTO rules, has to adduce
sufficient evidence on the existence and precise content of this measure, on how its different
components operate together as part of a single measure and how a single measure exists as
distinct from its components.
13. Precisely with respect to these last points, Brazil understands that one of the possible ways
to demonstrate how the different components of an alleged unwritten measure operate together as
part of a single measure is to look into the effects caused by them in the real world. For example,
one could mention several formal rules that discipline the importation and marketing of a given
product in a given country. These measures may not, in themselves, forbid the importation of the
referred product in a manner inconsistent with WTO rules; their application in practice, when

3 Appellate Body Report EC – Chicken Cuts, para. 346.
4 Appelate Body Report, Argentina – Textiles and Apparel, para. 54.

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combined, can have the effect of prohibiting imports. Since "unwritten measures" do not contain,
by definition, a text to be assessed, the panels are required to determine how the components of
this alleged unwritten measure impact the decisions taken by the relevant economic agents. In the
given example, the fact that operators are not effectively importing the product – with no other
reason to justify this commercial behavior – might constitute evidence that an unwritten measure,
composed of different components, does exist.
14. Finally, Brazil would like to comment on the circumstances in which the inclusion of a
measure in a panel request that was not included in a consultations request "expand the scope" or
"change the essence" of a dispute.
15. It is important to bear in mind that this issue touches upon the essence of the Panel's terms
of reference, and, consequently, the due process rights of the parties. In this sense, the analysis of
an alleged expansion of the scope of the dispute must be carefully undertaken in a case- by-case
basis, bearing two basic objectives in mind: first, to prevent the inclusion of aspects unrelated to
the subject matter of the dispute as initially identified in the consultations' request, something that
could undermine the respondent's right to have sufficient information regarding the claim; and,
second, to provide sufficient flexibility to the complaining party to adjust its case in light of aspects
related to the subject matter that were not known prior to the consultations.
16. With respect to the first point above, Brazil understands that the panel request should derive
from the process of consultations. Accordingly, the request for consultation should, on the one
hand, be able to provide notice to the defendant regarding the nature of the dispute and, thus,
should necessarily inform the panel request. A more significant departure from the subject matter
identified in the consultations' request would imply a substantial change in the essence of the
dispute, affecting the ability of the responding party to defend itself.
17. With respect to the second point, it is important to recall that the process of consultations is
designed not only to offer Members an opportunity to resolve the issue previously to the
establishment of a panel, but also to better inform the Parties about the measures at issue. It is
thus expected that new pieces of information or legislation that were not previously of general
knowledge be presented to the Parties during the course of consultations and become part of the
matter to be examined. The panel in Japan-Film recognized the possibility of inclusion of a new
measure not explicitly included in the consultation request in a panel request, provided that this
new measure is "subsidiary or so closely related to a 'measure' specifically defined." This should
not, in any case, result in a change in the essence of the dispute.

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ANNEX D-3
EXECUTIVE SUMMARY OF THE ARGUMENTS OF CANADA
1. A central purpose of the GATT is to reduce and bind tariffs. WTO Members bind tariff rates
by including them in Schedules of Concessions annexed to the GATT. Tariff bindings add security
and predictability to the GATT/WTO system and are a central obligation in that respect. Duties that
have been bound cannot be unilaterally revised upwards. GATT Articles II:1(a) and II:1(b) reflect
these objectives by requiring Members to preserve the value of concessions negotiated with their
trading partners and bound in their Schedules. WTO jurisprudence establishes that violations of
GATT Article II can take many forms, and provides Members a wide latitude to challenge measures
that detract from these concessions, both as applied and as such, and whether written or not.
I. INTERPRETATION OF ARTICLE S II:1(A) AND II:1(B) OF THE GATT 1994
2. In acceding to the WTO, a Member agrees to be bound by all obligations contained in the
WTO Agreement, the covered agreements and the terms set out in its Accession Protocol, which
include the tariff commitments set out in its Schedule. A Member must adhere to its negotiated
tariff rates and cannot charge duties greater than the amounts set out in its Schedule. Once a
tariff concession is agreed and bound in a Member's Schedule, the imposition of duties in excess of
the bound rate would upset the balance of concessions among Members and violate Article II of
the GATT 1994.
3. Article II:1(a) requires a Member to accord treatment no less favourable than that provided
for in its Schedule. The "treatment provided for in a Member's Schedule" consists of all
commitments on customs duties, but also non-tariff concessions and reductions in or the
elimination of export duties and taxes. Article II:1(b) is more specific and prohibits the imposition
of ordinary customs duties in excess of those set forth and provided in a Member's Schedule. In
Argentina – Textiles and Apparel , the Appellate Body explained that Article II:1(a) contains a
general prohibition against according treatment less favourable to imports while Paragraph (b)
prohibits a specific kind of practice – namely, requiring Members not to charge "ordinary customs
duties in excess of those provided" in the Schedule (para 46). While a measure on a matter other
than customs duties can provide less favourable treatment than that provided for in a Member' s
Schedule and still be consistent with Article II:1(b), the application of customs duties "in excess
of" the bound rates will always be inconsistent with Article II:1(a).
4. In each Member's Schedule a bound tariff provides an upper limit on the amount of duty
t
hat may be imposed. The ordinary meaning of the term "in excess of" captures the mere fact of
exceeding or surpassing that amount. The Appellate Body in Japan – Alcoholic Beverages II found
that the term "in excess of" in Article III:2 means that "[e]ven the smallest amount of 'excess' is
too much" (p. 21). This finding is also relevant to the interpretation of Article II:1(b). If a Member
levies ordinary customs duties in excess of the bound rates provided for in its Schedule, whether
this results from the application of a different type of duty or by a measure's structure or design,
the Member is acting inconsistently with its obligations under Article II:1(b).
5. In the case of the mixed duties at issue, Russia's customs officials collect the greater of the
ad valorem or the specific duties applicable, with no upper limit on the specific duty that may be
imposed, while its bound rates are expressed in ad valorem amounts. The absence of a ceiling or
cap mechanism in calculating specific duties means that they could be applied in excess of the
bound rate at any time, with no predictability to importers and exporters.
6. Paragraph 313 of Russia 's Working Party Report provides a methodology for adjusting the
specific component of mixed duty rates to ensure the equivalency between the specific and ad-
valorem portions of mixed duty rates. The inclusion of this predictable and transparent
methodology limits Russia' s discretion to change the specific portion of the duties. The correct
application of the methodology would ensure that t he applied duty (whether expressed in ad
valorem or specific terms and whether determined by Russia or the competent bodies of the
Customs Union) would never exceed the bound rate for the implicated tariff lines, thereby ensuring
compliance with Article II:1(b).

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7. A Member can increase its bound protection on a given tariff line if it follows the multilateral
process included in GATT Article XXVIII. This process protects previous ly-made concessions
because the Member wishing to raise its duties on a bound item will typically negotiate
compensation with a subset of the WTO Membership that has been most severely affected by the
change. The agreed compensation will be applied on an MFN basis.
8. The Decision on Procedures for Modification and Rectification of Schedules of Tariff
Concessions (GATT BISD/27S/25) covers the certification of changes in the authentic texts of
schedules of tariff concessions. Earlier in 2015 Russia notified the WTO of "technical changes" to
its Schedule pursuant to Paragraph 2 of that Decision but the European Union objected to Russia 's
rectifications. The European Union alleges that Russia 's "technical changes " alter the scope of
concessions with respect to the goods concerned, would result in an increase of bound rates, and
cannot be considered as rectifications of a purely formal character within the terms of Paragraph 2
of the Decision. Given the European Union 's objection, the authentic text of Russia 's Schedule has
not been modified.
II. EUROPEAN UNION'S AS SUCH CLAIMS
9. The European Union's claims challenge individual instances of the application of customs
duties to paper and paperboard, palm oil and its fractions, and combined refrigerators-freezers and
refrigerators "as applied". They also address the duties "as such" on the basis of their structure
and design. The European Union challenges systematic duty variations (SDV) "as such" to the
extent that it results in the application of ordinary customs duties in excess of those provided in
Russia's Schedule.
10.
The Appellate Body has established in Argentina – Import Measures that a Member' s
measures can be challenged as such, that is, independently from its application in a specific case,
in WTO dispute settlement proceedings (para. 5.101). In Argentina ‒ Textiles and Apparel , the
Appellate Body found a violation with respect to tariff categories to which a regime of minimum
specific import duties applied. The central element of the analysis was that the structure and
design of the regime led to an infringement of Argentina's obligations under Article II:1 for all
implicated tariff categories (paras. 60-62). The structure of Russia's measure results in a similar
violation. The measure imposes customs duties on merchandise imports, levied either as an
ad valorem tariff or as a specific tariff. These are collected at the border by Russian customs
authorities. They are clearly "ordinary customs duties" within the meaning of Article II:1(b) that as
such result in the application of customs duties in excess of the bound rate. The Panel need not
undertake further analysis on the structure of the measure to determine whether it is caught by
Article II.
11. In EC – Selected Customs Matters, the Appellate Body agreed that a Member is also allowed
to challenge another Member's system as a whole or overall. It further established that challenging
the design or structure of a system is permissible (para. 175). A finding on the system as a whole
is necessary in this case because violations resulting from the SDV appear throughout the
Common Customs Tariff. They are best described as individual instances of a more general
phenomenon that must be brought into compliance with Article II of the GATT 1994.
12. In US – Corrosion-Resistant Steel Sunset Review , the Appellate Body pointed out that, if a
measure could not be challenged "as such" but only in the instances of its application, this would
lead to a multiplicity of litigation. Allowing claims against a measure "as such" thus "serves the
purpose of preventing future disputes by allowing the root of WTO-inconsistent behaviour to be
eliminated" (para. 82). The European Union's "as such" challenge serves this function, avoiding the
need for multiple challenges against individual instances of the Common Customs Tariff' s
application.
13. The European Union' s "as such" challenge also addresses two atypical aspects of the
measures at issue. First, the "as such" claim addresses Russia's suspended measures, for example
the ad valorem duty of 15% on certain paper and paper board products (tariff line 4810 92 100 0)
that Russia claims does not apply between 20 April 2013 and 31 December 2015 and has been
superseded by a recent administrative decision establishing a constant duty rate of 5%. Even if
this tariff is currently suspended as Russia claims, nothing prevents the Panel from making a
finding of inconsistency in relation to the future imposition of duties in excess of bound rates.

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14. Second, the "as such" claim addresses the application of temporary duties, for example the
applied duty rate on palm oil and its fractions (tariff lines 1511 90 190 2 and 1511 90 990 2) that
may have expired on 31 August 2015. Canada refers to the statement of the Panel in Indonesia –
Autos: "in previous GATT/WTO cases, where a measure included in the terms of reference was
otherwise terminated or amended after the commencement of the panel proceedings, panels have
nevertheless made findings in respect of such a measure" (para. 14.9). With so many variations in
the application of supposedly bound duties, this case is particularly apt for such a finding and the
"as such" claim is the appropriate procedure for seeking it.
15. Legislation as such can be challenged regardless of whether it is mandatory or discretionary.
The mandatory or discretiona ry nature of the measure is relevant, if at all, only as part of the
panel's assessment of whether the measure is, as such, inconsistent with particular obligations.
The mandatory/discretionary distinction is inapplicable in the context of Article II:1 of the
GATT 1994 given the nature of tariff concessions. Article II:1(b) provides that imports of products
described in a Member 's Schedule "shall" be exempt from ordinary customs duties in excess of
those set forth in that Schedule. A Member 's schedule attac hed to the GATT 1994 and
implemented into its domestic legislation is mandatory.
16. Finally, a measure can be challenged even if it is not in the form of a written instrument.
The Appellate Body established in US – Zeroing (EC) that acts setting forth rules or norms that are
intended to have general and prospective application are measures subject to WTO dispute
settlement (paras. 197-198). The determination of such measures should be based on the content
and substance of the alleged measure, and not merel y on its form. The mere fact that a rule or
norm is not expressed in the form of a written instrument is not determinative of the issue of
whether it can be challenged, as such, in dispute settlement proceedings.
17. When bringing a challenge against such an unwritten rule or norm, a complaining party must
clearly establish: (i) that the rule or norm is attributable to the responding Member; (ii) the
precise content of the rule or norm; and (iii) the rule or norm does have general and prospective
application. The Appellate Body report Argentina – Import Measures leaves it open to the
complaining party to characterize the conduct at issue as one measure or a series of measures,
but it will be up to the complaining party to substantiate its position with evide nce relating to the
requirements or instruments at issue. As the Appellate Body stated, that might include evidence of
their legal status and the relationship between them, including whether a certain instrument has
autonomous status. What form this evidence would take would have to depend on the measure(s)
in question (para. 5.108).

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ANNEX D-4
EXECUTIVE SUMMARY OF THE ARGUMENTS OF CHILE1
1. Mr. Chairman, distinguished members of the panel, the delegation of Chile, as a third party
in this dispute, welcomes the opportunity to present its view regarding certain systemic issues
raised in this dispute.
2. Chile considers especially important to emphasize that, in the discussion of this panel a
correct interpretation and application of Article II of GATT 1994 raised by the European Union, is
ensured. Such standard constitutes a structural element of the system of reciprocal concessions
which underpins the WTO. In this regard, Article II in consideration, not only aims to ensure that
competitive conditions for the products covered by each Member's schedule are maintained, but
also protects the delicate balance of commitments reflected on them. In this regard, Article II of
GATT creates a context of certainty and predictability that encourages and promotes international
trade.
3. Chile considers relevant to refer to the meaning of "in excess" as stated on Article II. 1 (b).
As has been interpreted by the Appellate Body, "in excess" must refer to even the smallest
increment over the amount inscribed in the schedule that may occur. Therefore, it must be
considered, that the slight difference on the applied tariff above the upper limit set by the bound
tariff, suffice to configure an infringement of Article II.1 (b).
4. Also in the light of what has already been pointed out, it's in the interest of Chile to
emphasize that, as indicated by the Appellate Body in Argentina - Textiles and Apparel, the very
structure and design of an applied tariff, as rule of general application, it may result in a violation
of Article II.1 paragraphs a) and b), if such structure allows to calculate a greater value over the
bounded tariff. In this regard, tariffs can be challenged "as such", without necessity to previously
asses that such duties have been applied to a particular trade flow, since it's the tariff structure -
higher than the bound level - what triggers the violation of the rule in question.
Again, thank you very much for this opportunity.

1 Chile has requested that its oral statement serve as its executive summary.

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ANNEX D-5
EXECUTIVE SUMMARY OF THE ARGUMENTS OF COLOMBIA
1. Colombia will provide its views on: a) Whether a temporarily not applied measure falls under
the terms of reference of the Panel, and b) The need to use GATT Article VII:2 as relevant context
for the interpretation of GATT Article II:1(b). Additionally in regards of the question posed by the
panel to the third parties, Colombia will refer to question 4 (b): How could undervaluation or
under-invoicing be a situation that would allow for surpassing of bound rates?
a) Whether a temporarily not applied measure falls under the terms of
reference of the Panel

2. The EU argues that for tariff line 4810 92 100 0 "Section X, Chapter 48 of the CCT provides
for an ad valorem duty of 15% for these products. According to footnote 14, however, the CCT
provides for a temporary reduction of the ad valorem duty to 5% between 20 April 2013 and
31 December 2015."
1 On the other hand, Russia argues that the measure at issue "simply does
not exist" 2 and that "is not the practice of GATT/WTO panels to rule on measures which have
expired or which have been repealed or withdrawn." 3 Colombia disagrees with the Russian
Federation statement, because the fact that a measure does not "temporarily apply" does not
mean that such measure does not exist.
3. Following the criteria the AB provided in US – Gambling in regards of the requirements a
measure must meet in order to be subjected to dispute settlement4 Colombia considers that in this
case CCT Section X, Chapter 48 is indeed a measure under these terms. This measure not
temporarily applied is attributable to the Russian Federation and its existence is the source of the
alleged impairment by the European Union. Additionally, Colombia considers that in virtue of the
mandate of DSU Article 3.3, notwithstanding that it is not clear from the parties’ submissions that
the measure at issue is currently affecting the operation of the GATT 1994, such analysis cannot
be prejudged by excluding the measure from dispute settlement proceedings.
b) The need to use GATT Article VII:2 as relevant context for the interpretation
of GATT Article II:1(b)

4. In relation to GATT Articles II:1 (a) and (b) Colombia states that, although it agrees in
general terms with the interpretation developed by the AB under these provisions, it is to be
pointed out that in certain cases such a straightforward approach may not be the most
appropriate way to determine if a tariff measure of a member is in breach of these obligations.
5. GATT Article VII and the CVA, being part of the text of the covered agreements, are relevant
context for interpreting the terms of GATT Article II:1(b). GATT Article VII: 2 prohibits goods from
b
eing valued taking into account criteria other than their actual value, and specially forbids the
valuation of goods using arbitrary or fictitious values. Additionally, CVA Article 1 restates the
preeminence of the use of the transaction value as the primary customs valuation method. Thus,
in view of the above, given the importance of the valuation of goods in the analysis of the design
and structure of a tariff measure, Colombia considers that the interpretation of GATT Article II: 1
(a) and (b) needs to be informed by GATT Article VII and the CVA, in the sense that these
provisions sets forth the rules for the valuation of goods for custom purposes.
c) How could undervaluation or under-
invoicing be a situation that would allow
for surpassing of bound rates?

6. Article II:1 (b) sets an obligation that applies to products "on their importation". An
"importation" occurs when a product enters into the territory of other Member fulfilling formalities

2 Russia Federation First Written Submission, para. 30
3 Russia Federation First Written Submission, para. 31
4 Appellate Body Report, US - Gambling, para. 121

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and legal requirements of the country of destination. International trade operations made with
illicit purposes could not be considered as "importations" under article II:1 (b) of the GATT 1994.
7. Such interpretation finds support in article II:1 (a), which accords treatment no less
favorable to the "commerce" of the other Members. The term "commerce" necessarily refers to licit
commerce. It would be meaningless that article II provides an obligation for a Member to grant
treatment no less favorable to the entry of products which violates their formalities or legal
requirements.
8. In Colombia's view, if a Member has proved undervaluation or under-invoicing through
economic studies or context of a specific situation, among others, and such determination leads a
Panel to a finding that the importation of products has been conducted for illicit purposes, a Panel
should conclude that international trade operations made with illicit purposes cannot be considered
as "importations" under article II:1 (b) of the GATT 1994, thus, the aforementioned provision of
the GATT 1994 would not be applicable.
9. Therefore, there is no situation whether undervaluation or under-invoicing would allow a
Member for surpassing the bound rates. Simply, when reviewing measures adopted to prevent
phenomena related to international criminal or other security – related situations, panels should
dismiss the application of article II:1 b) for the protection of the international community.

- D-13 -

ANNEX D-6
EXECUTIVE SUMMARY OF THE ARGUMENTS OF JAPAN
I. INTRODUCTION
1. Japan's third party submission focuses on legal issues and principles, rather than factual
issues.
II. COMMENTS ON THE GENERAL LEGAL STANDARD UNDER ARTICLE II OF THE
GATT 1994
2. Japan wishes to clarify and emphas ize how strict the standard is under Article II of the
General Agreement on Tariffs and Trade 1994 (GATT 1994) and how Members should strictly
comply therewith.
3. One of the fundamental principles of Article II:1(a) of the GATT 1994 is that a Member
should not impose duties in excess of the bound rates provided in its Schedule. As confirmed by
the Appellate Body in Argentina – Textiles and Apparel, there is some flexibility in designing a type
of duty applied. However, the Appellate Body expressly noted that such flexibility does not apply to
the upper limit provided in a Member 's Schedule by stating that "[T]he application of a type of
duty different from the type provided for in a Member's Schedule is inconsistent with
Article II:1(b), first sentence, of the GATT 1994 to the extent that it results in ordinary customs
duties being levied in excess of those provided for in that Member's Schedule."1
4. It could also be understood that the Appellate Body demonstrated how its interpretation is
not impractical by stating that "… it is possible, under certain circumstances, for a Member to
design a legislative 'ceiling' or 'cap' on the level of duty app lied which would ensure that, even if
the type of duty applied differs from the type provided for in that Member's Schedule, the ad
valorem equivalents of the duties actually applied would not exceed the ad valorem duties
provided for in the Member's Sched ule."2 Accordingly, Japan is of the view that even the slightest
excess of the bound rate is not permissible under Article II of the GATT 1994.
5. This conclusion can be further explained and elaborated based on the nature of tariff
concessions as well as the object and purpose of the GATT 1994. First of all, it must be noted that
the Appellate Body stated in Argentina – Textiles and Apparel that "[O]nce a tariff concession is
agreed and bound in a Member's Schedule, a reduction in its value by the impositi on of duties in
excess of the bound tariff rate would upset the balance of concessions among Members."3 With
such nature of the tariff concessions in mind, Japan 's view is that the "balance of concessions " is
premised on a definite line carefully drawn as the bound rates. That balance cannot be achieved if
this line is made flexible by permitting a de minimis standard. In addition, if this line is rendered
vague or illusory, it would easily frustrate "the security and predictability of 'the reciprocal and
mutually advantageous arrangements directed to the substantial reduction of tariffs and other
barriers to trade'" that has been confirmed as "an object and purpose of the WTO Agreement,
generally, as well as of the G ATT 1994" by the Appellate Body in EC – Computer Equipment.
4 The
conclusion that each Member must fully a nd strictly comply with Article II of the GATT 1994 is
supported by such nature of the tariff concessions as well as the object and purpose of the
GATT 1994. Simply put, if there is a slightes t excess of duties, then the concessions thoughtfully
agreed upon by the Members will be seriously compromised.
6. The above strict standard calls for the obligation under Article II of the GATT 1994 not to
exceed the tariff bindings to be applied to each product. A Member must not impose duties that
are even slightly in excess of the bound rates since there is no de minimis standard in the
application of Article II of the GATT 1994. Similarly, a Member must not determine whether it is
imposing duties in ex cess of the bound rate for certain products that fall under a tariff line by

1 Appellate Body Report, Argentina – Textiles and Apparel, para. 55. (emphasis added)
2 Ibid. para. 54. (emphasis added)
3 Appellate Body Report, Argentina – Textiles and Apparel, para. 47.(emphasis added)
4 Appellate Body Report, EC – Computer Equipment, para. 82. (emphasis added)

- D-14 -

looking at the subject products as a whole, by, for example, off-setting the excess duties on some
products with duties below the bound rates on some other products. To permit any such de
minimis standard or off -setting of any kind would render violations of Article II of the GATT 1994
unclear and subjective thereby undermining the "security and predictability" 5 of the tariff
concessions. It should also be noted that, the panel in EC – IT Products found that the imposition
on at least some products that fell within the relevant duty-free concession of a duty in excess of
that provided in the subject Schedule was in violation of Articl II:1(b) of the GATT 1994.6
Therefore, Article II of the GATT 1994 should be strictly complied with. Not even the slightest
excess of duties of any kind is permissible and no off-setting should be tolerated.
III. APPLIED DUTIES "AS SUCH" ARE INCONSISTENT WITH THE GATT 1994
A. Claims related to applied ad valorem duties in excess of bound ad valorem
 rates
(1) Currently applicable ad valorem duties exceeding the bound rates
7. Japan agrees with the European Union that the five tariff lines 4810 22 900 0,
4810 29 300 0, 4810 92 300 0, 4810 13 800 9 and 48 10 19 900 0 provided in the Common
Customs Tariff of the Eurasian Economic Union (CCT) , which provide for ad valorem applied rates
of 10% or 15% in excess of the ad valorem bound rate of 5% provided for in the Schedule of the
Russian Federation (Russia), are in violation of Article II:1(b) of the GATT 1994, and consequently,
of Article II:1(a) thereof.
(2) Ad valorem duties exceeding the bound rates that are temporarily not
 applied
8. Regarding tariff line 4810 92 100 0, Russia's Schedule provides for a bound rate of 5% while
the CCT provides for an ad valorem duty of 15% for products under this tariff line . However, the
ad valorem duty of 5%, which is equivalent to the bound rate, is to be temporarily applied from
20 April 2013 to 31 December 2015 (inclusive).7 Thereafter, from 1 January 2016 , the applied
duty of 15% will exceed the bound rate.
9. Japan notes that Russia's temporary reduction as provided in Decision No. 77 is identical to
the duty suspension measure that was at issue in EC – IT Products and similarly does not
eliminate the inconsistency of tariff line 4810 92 100 0 with Article II:1(a) of the GATT 1994
because "there remains the potential of deleterious effects on competition."8
10. Moreover, in Chile – Alcoholic Beverages, the panel aptly allowed a law that consisted of new
ad valorem tax rates applicable from a certain day in the future to be examined as a measure
based on its mandatory and definitive nature. 9 Applying the panel 's approach in Chile – Alcoholic
Beverages, tariff line 4810 92 100 0 "has been enacted but not implemented; " it is mandatory
there being "no discretion allowed in its enforcement; " and it is "certain and definitive."10 To such
extent, Japan agrees with the European Union that the aforesaid tariff line accords treatment less
favourable than that provided in Russia's Schedule , which results in a violation of Article II:1(a) of
the GATT 1994.
11. Japan is also of the view that the panel 's findings in US – Superfund and Argentina –
Textiles and Apparel can be extended to Article II:1(b) of the GATT 1994. In US – Superfund, the
panel permitted the challenge of a mandatory tax measure not yet in force because there exists a
rationale to "protect expectations of the contracting parties as to the competitive relationship

5 Ibid.
6 Panel Report, EC – IT Products, para. 7.1503. (emphasis added)
7 Note 14C, Decision No. 77 of the Board of the Eurasian Economic Commission of 26 May 2014
amending the Single Commodity Nomenclature of Foreign Economic Activities of the Customs Union and the
Common Customs Tariff of the Customs Union in respect of certain goods in accordance with the WTO
accession commitments of the Russian Federation and approving the draft Decision of the Council of Eurasian
Economic Commission (Decision No. 77), Exhibit EU-5.
8 Panel Report, EC – IT Products, para. 7.761.
9 Panel Report, Chile – Alcoholic Beverages, fn 413.
10 Ibid.

- D-15 -

between heir (sic) products and those of the other contracting parties," and that Article III is
meant "not only to protect current trade but also to create the predictability needed to plan future
trade."11 In Argentina – Textiles and Apparel , the panel noted that " [T]he very existence of
mandatory legislation providing for an internal tax, without it being applied to a particular
imported product" may be challenged under Article III:2 of the GATT 1994.
12
12. In this regard, Japan is of the view that the Panel, in examining whether tariff line
4810 92 100 also con stitutes a violation of Article II:1(b) of the GATT 1994, could take into
account the mandatory and definitive nature of such tariff line, which will certainly take effect from
1 January 2016 without n eed of any further governmental action , and that the current structure
and design thereof but for the temporary duty reduction regime clearly has the potential of
violating the tariff binding of Russia.
(3) Statements made by Russia in its request for rectification and
modification of its Schedule
13. Japan is of the opinion that if a Member wishes to modify a concession in its Schedule, which
will alter the scope of the concession, instead of the procedure provided in the Declaration on
Procedures for Mod ification and Rectification of Schedule of Tariff Concessions 13 (Decision on
Certification Procedures),14 the correct procedure should be the one provided in Article XXVIII of
the GATT 1994, which involves negotiations and consultations with the relevant Members.
B. Claims related to applied combined duties in excess of bound ad valorem
 duties
14. Since Article II of the GATT 1994 demands full and strict compliance for each product, Japan
agrees with the European Union that the tariff treatment of the prod ucts under tariff
lines 1511 90 190 2, 1511 90 990 2 and 8418 10 2001 results in violation of Article II:1(b) of the
GATT 1994, and consequently, of Article II:1(a) thereof.15
C. Claims related to applied combined duties in excess of the bound combined
duties
15. Japan reiterates that Article II of the GATT 1994 demands full and strict compliance for each
product. Thus, in the absence of any mechanism that would prevent the subject applied rate s from
exceeding the bound rate s, Japan agrees with the Europea n Union's assertion that the tariff
treatment of the products under the tariff lines 8418 10 800 1 and 8418 21 100 0 results in
violation of Article II:1(b), and consequently, of Article II:1(a) thereof.16
D. The characterization of the claims
16. Japan agrees with the European Union's assertion that a Member's customs tariff can be
challenged as an "as such" claim because it is a legal instrument with general and prospective
application attributable to that Member, and its precise content can be established.17
17. This conclusion is in line with the finding of the panel in EC – IT Products that if the duty -
free concessions do include the subject products therein, and if the effect of the subject measures

11 GATT Panel Report, US – Superfund, para. 5.2.2.
12 Panel Report, Argentina – Textiles and Apparel, para. 6.45.
13 L/4962.
14 Paragraph 2 of the Decision on Certification Procedures permits the certification of two kinds of
changes, namely: (a) changes arising from amendments or rearrangements which do not alter the scope of a
concession that are introduced in national customs tariffs in respect of bound items; and (b) other rectifications
of a purely formal character.
15 European Union's first written submission, para. 103.
16 Ibid. paras. 111 and 120.
17 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para. 172, and Appellate
Body Report, US – Zeroing (EC), para. 198.

- D-16 -

is necessarily to deny such products duty-free treatment, then it would consider that an "as such"
breach of that Member's commitments will have been established.18
E. Claims related to the systematic variations in the type of duty without
mechanisms to prevent duties from being applied in excess of those provided
in the Schedule
18. The European Union is also challenging what it considers a "more general measure ," the
Systematic Duty Variation or the SDV ,19 as a violation of Article II:1(b) and II:1(a) of the
GATT 1994 as such.20
19. Firstly, Japan is of the view that the Panel should explore the precise content including the
product scope and the existence of the SDV in the way the European Union described and
characterized in its submission. In this regard, Japan believes that to prove the existence of a
single measure composed of several instruments as a norm of general and prospective application,
evidence is needed of how the different components operate together as part of a single measure
and how the single measure exists distinctly from its components. Based on this understanding, if
there is a large number of different components involved, then generally, it may be more difficult
to establish how these instruments operate together. In other words, the evidential standard will
be higher in such cases.
20. Secondly, Japan is of the view that the Panel should consider the legal implications of the
consequent recommendation of the D ispute Settlement Body. It should be noted that the
European Union's illustrative list 21 that allegedly compose the SDV is not a closed one, and thus ,
the SDV effectively includes all of the tariff lines that Russia may design in the future. In addition
to the legal consequence which the European Union has explained with respect to a "moving
target,"22 Japan would like to note that, if a WTO-inconsistent measure is not precisely identified
and consists of an unlimited number of different components , and the product scope is open-
ended, then the duty under any tariff line, which is applied in a specific way involving the SDV in
the future, would also be considered in violation of Article II of the GATT 1994. Such duty under
such tariff line, which is applied in such specific way in the future , would also be deemed as a
measure (i.e. the SDV) not being complied with in a proceeding unde r Article 21.5 of the
Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) without the
responding party having the chance to defend the WTO -consistency of such tariff line from the
panel level.23
IV. CONCLUSION
21. Based on the f oregoing, Japan respectfully requests the Panel to carefully scrutinize the
measures at issue in light of the strict standard required by Article II of the GATT 1994.

18 Panel Report, EC – IT Products, para. 7.113.
19 European Union's first written submission, para. 127.
20 Ibid. para. 131.
21 Illustrative list of discrepancies related to the European Union’s SDV claim, Exhibit EU-19.
22 European Union’s first written submission, para. 134.
23 As described by the United States, it is worth noting what measures could be subject to review as a
measure taken to comply in a proceeding under Article 21.5 of the DSU. See the United States’ third party oral
statement, paras. 13 and 14.

- D-17 -

ANNEX D-7
EXECUTIVE SUMMARY OF THE ARGUMENTS OF NORWAY
I. A MEMBER CANNOT IMPOSE ORDINARY CUSTOMS DUTIES IN EXCESS OF THE
LEVEL OF THE BOUND TARIFFS
1. GATT Article II enshrines a central purpose of the agreement: to reduce and bind tariffs.
This adds security and predictability to the WTO system. Norway would like to stress that duties
that have been bound, cannot be unilaterally revised upwards; the multilate ral process embedded
in Article XXVIII of the GATT has to be observed.
2. In the case at hand, the European Union ( "EU") claims that the Russian Federation
("Russia") violates Articles II:1(a) and II:1(b) of the GATT, by subjecting a number of goods to
duties inconsistent with its Schedule. 1 Article II:1(a) obliges WTO Members to accord tariff
treatment no less favourable than that provided for in their Schedules . Likewise, according to
Article II:1(b), imported products shall be exempt from "ordinary duties" and "all other duties and
charges of any kind" in excess of those notified in the Schedule submitted by a WTO Member.
3. The Appellate Body has underlined the clo se relationship bet ween Article II:1(a) and (b):
"Paragraph (a) of Article II:1 contains a general prohibition against according treatment less
favourable to imports than that provided for in a Member's Schedule. Paragraph (b) prohibits a
specific kind of practice that will always be inconsistent with paragraph (a): that is, the
application of ordinary customs duties in excess of those provided for in the Schedule.
Because the language of Article II:1(b), first sentence, is more specific and germane to the case at
hand, our interpretative analysis begins with, and focuses on, that provision."2
4. Thus, exceeding bound tariffs in violation of Article II:1(b) automatically entails a violation
of Article II:1(a).3 We therefore agree with the EU that all that is required in order to find a
violation of both Articles II:1(a) and (b) is the existence of ordinary customs duties that are in
excess of those provided in the Schedule.4
5. Russia objects to the consistent interpretation of the term "in excess of " in Article II:1(b)
laid down by panels and the Appellate Body. Norway disagrees with this contestation. The ordinary
meaning of "in excess of" is "of more than" or "over".5 This meaning is so clear, so explicit, that it
simply cannot be interpreted in any other way in order to giv e me aning in the context of
Article II:1(b). Norway cannot see that the wording of Article II:1(b) is equivocal or inconclusive in
any sense. This is probably the reason why the Appellate Body has not dwelled on this expression
in previous cases concernin g the interpretation of Article II:1(b), but rather implicitly adopts the
said interpretation of the term.
6 Norway thus agrees with the EU regarding the interpretation of
the term "in excess of".
II. CERTAIN INTERPRETATIVE ISSUES RELATED TO THE EU'S CLAIMS REGARDING THE
TARIFF LINES 1511 90 190 2 AND 1511 90 990 2
6. Norway would furthermore like to highlight two interpretative issues related to the EU 's
claims regarding products falling under the tariff lines 1511 90 190 2 and 1511 90 990 2 (palm oil
and i ts fractions). While Russia 's Schedule provides for an ad valorem bound duty rate of 3%,
Russia applies a combined duty of 3%, but not less than 0.09 EUR/kg, to these tariff lines.

1 First Written Submission by the EU, para. 34.
2 Appellate Body Report, Argentina – Textiles and Apparel, para. 45, emphasis added.
3 Appellate Body Report, Argentina – Textiles and Apparel, para. 47.
4 First Written Submission of the EU, para. 38.
5 Collins English Dictionary, HarperCollins Publishers, Glasgow, 9 ed., 2007.
6 Appellate Body Report, Argentina – Textiles and Apparel, paras. 51-53.

- D-18 -

a) The requirement to identify the specific measure at issue in the panel request
7. Russia argues that, as these combined dutie s will only be applied until 31 August 2015, the
Panel should not consider these duties as they do not constitute a measure for the Panel to rule
on.7 Norway understands this as a reference to the requ irement to identify the specific "measure"
at issue in the request for the establishment of a panel in Article 6.2 of the Understanding on Rules
and Procedures Governing the Settlement of Disputes ( "DSU"). Norway does not address this
question in detail, but simply notes that the Appellate Body in US – Zeroing (Article 21.5 – Japan)
stated that DSU Article 6.2 does not set out an express temporal condition or limitation. 8 In the
case at hand, the measure in question was indeed in existence at the time of t he establishment of
the panel, and specifically identified in the request for the establishment of a panel. Norway thus
struggles to see how the duties in question cannot be considered a "measure" within the meaning
of DSU Article 6.2.
15. As the panel in EC – IT Products stated, in the context of measures that came into force
after the establishment of the panel and whether these were within the panel 's terms of reference,
"this is to prevent the possibility that the procedural requirements of WTO dispute settlement
result in a situation where measure could completely evade review ".
9 A system where measures
that are applied for a set time frame cannot be addressed through the dispute settlement
mechanism, would leave considerable room for circumvention of the rules. The effect on the
traders of a measure applied for a certain time frame may be substantial. Additionally, as the EU
points out, the temporary character of such a measure is a source of considerable uncertainty for
traders and other WTO Members.
10 Furthermore, if measures that apply for a set time frame
cannot be challenged if they expire in the middle of the dispute settlement process, it would make
the timing of the request for establishment of a panel the vital point of departure, not the measure
itself. It would push a Member towards initialising a panel process sooner rather than later, at the
sacrifice of constructive consultations, in fear of losing the right of having the measure examined
by a panel. To sustain Russia 's objection would, simi larly to the panel 's finding in EC – Fasteners
(China), "not be consistent with the effective functioning of the WTO dispute settlement system, as
it might lead to inappropriate legal manoeuvres to avoid dispute settlement, inconsistent with the
obligation of Members to engage in dispute settlement "in good faith in an effort to resolve the
dispute"".
11
b) A member cannot apply combined duties in excess of bound ad valorem duties
16. Russia further sets out that even if the me asure is to be in place after 1 September 2015,
setting out a combined duty of 3% but not less than 0.09 EUR/kg, it does not entail a violation of
Russia's commitments under the WTO Agreement, as the mere fact that the form of applied duty
varies from the form contained in its Schedule d oes not create a WTO inconsistency.
12 Norway
would like to point out that the Appellate Body has explicitly found that "the application of a type
of duty different from the type provided for in a Member's Schedule is inconsistent with
Article II:1(b), first sentence, of the GATT 1994 to the extent that it results in ordinary customs
duties being levied in excess of those provided for in that Member's Schedule. "13 The key is
whether the change in type of duty results in ordinary customs duties being levied in excess of the
scheduled duties, a s explicitly set out in Article II:1(b). As the Appellate Body has set out, the
question of whether this is the case will depend on the structure and design of the measure. 14 The
Appellate Body also specifically offered a wa y to design such a measure that would ensure it did
not in fact violate Article II, namely by designing a legislative "ceiling" or "cap" on the level of duty
applied.15 Hence, if a WTO Member does want to apply a duty different from the scheduled duty,
this would be a way of doing that which would ensure conformity with that Member 's WTO
obligations.

7 First Written Submission of Russia, para. 103.
8 Appellate Body Report, US – Zeroing (Article 21.5 – Japan), para. 121.
9 Panel Report, EC – IT Products, para. 7.140.
10 First Written Submission of the EU, para. 81.
11 Panel Report, EC – Fasteners (China), para. 7.34.
12 First Written Submission of Russia, para. 104.
13 Appellate Body Report, Argentina – Textiles and Apparel, para. 55.
14 Appellate Body Report, Argentina – Textiles and Apparel, paras. 54-55.
15 Appellate Body Report, Argentina – Textiles and Apparel, para. 54.

- D-19 -

17. The EU has offered convincing evidence as to how Russia, with regards to the two tariff lines
mentioned above, in addition to tariff line 8418 10 200 1,16 specifically and expressly requires
customs officials to collect the greater of the ad valorem or the specific duty applicable, with no
upper limit on the level of the ad valorem equivalent of the specific duty that may be imposed.17 In
Norway's view, this clearly leads to ordinary customs duties being levied in excess of those
provided for in Russia's Schedule. Norway cannot see that Russia has offered any evidence as to
how this is not the case.
III. THE APPLICATION OF AD VALOREM DUTIES EXCEEDING THE BOUND RATES THAT
ARE TEMPORARILY NOT APPLIED
19. The facts relating to tariff line 4810 92 100 0 (certain paper and paper board products), as
the case stood at the date of the establishment of the panel, seem to be undisputed: the bound
rate for this tariff line is 5%, while the Common Customs Tariff of the Eurasian Economic Union
provides for an ad valorem duty of 15% for these products. However, there has been a temporary
reduction of the ad valorem duty to 5% between 20 April 2013 and 31 December 2015.
20. In its First Written Submission, Russia submits that a 5% ad valorem duty will be applied on
a permanent basis to this tariff line in the future. 18 Russia thus argues that the measure described
by the European Union (EU) "simply does not exist" 19 and that the Panel should 1) abstain from
making a finding on this measure as it falls outside its terms of reference, 20 and 2) find the
measure in accordance with Russia's WTO commitments.21
21. Norway understands Russia's statements as a reference to Articles 6.2 and 7.1 of the DSU.
In terms of the temporal limitations of a panel's terms of reference, the Appellate Body has
underlined that " [t]he term ‘specific measures at issue ' in Article 6.2 suggests that, as a general
rule, the measures included in a panel's terms of reference must be measures that are in existence
at the time of the establishment of the panel ".
22 As we know, the Panel in this case was
established on 25 March 2015. Norway thus struggles to see how the measure identified by the EU
is not within the Panel's terms of reference.
22. The question is then whether Decision no. 85 of the Board of the Eurasian Economic
Commission, adopted after the date of the establishment of the Panel, is also within the Panel' s
terms of reference. Norway will not go into detail on this question, but notes that the EU seems to
agree that this could be the case. 23 If this approach is followed, a duty of 5% would be applied to
the tariff line in question, thus ending the application of WTO-inconsistent duties. This would
however not necessarily mean that the claims related to these duties are automatically dispersed
with. Norway refers to the panel in Japan – Film , which observed that there are several cases
where panels have proceeded to adjudicate claims involving measures which no longer exist or
which are no longer being applied.
24 In those cases, the measures typically had been applied in the
very recent past, as is the case in the case at hand. For example, the panel in EEC — Measure on
Animal Feed Proteins , ruled on a discontinued measure, but one that had terminated after the
terms of reference of the panel had already been agreed. In line with this, even if the Panel should
find that Decision no. 85 is within the Panel's terms of reference, it should still rule on the measure
as identified by the EU. This would counteract the possibility of having to chase a moving target
and would be in line with the object and purpose of the dispute settlement system, as contained
in DSU Article 3.2 and 3.3.

16 Certain combined refrigerators and freezers.
17 First Written Submission of the EU, paras. 84-103.
18 First Written Submission of Russia, para. 29.
19 First Written Submission of Russia, para. 30, Request for a Preliminary Ruling pursuant to Article 6.2
by Russia,
 para. 54.
20 First Written Submission of Russia, para. 42, and Request for a Preliminary Ruling pursuant to Article
6.2 by
 Russia, para. 63.
21 First Written Submission of Russia, para. 42.
22 Appellate Body Report, EC – Chicken Cuts, para. 156, emphasis added.
23 Reply to Russia's Preliminary Ruling Request by the EU, para. 90.

- D-20 -

23. As for the consistency of the measure identified by the EU with Russia's WTO commitments,
Norway agrees with the EU that a temporary reduction of a duty that exceeds the bound rate is
not in accordance with GATT Article II:1(a). 25 The panel in EC – IT Products underlined that " …we
are of the view that the duty suspension measure does not eliminate the inconsistency with
Article II:1(a) because there remains the potential of deleterious effects on competition." Norway
agrees with the EU that the measure at issue corresponds to the situation in EC – IT Products. The
duty suspension creates the potential of deleterious effects on competition and is thus inconsistent
with Article II:1(a).
IV. THE CIRCUMSTANCES IN WHICH THE INCLUSION OF A MEASURE IN A PANEL
REQUEST THAT WAS NOT INCLUDED IN A CONSULTATIONS REQUEST WILL
"EXPAND THE SCOPE" OR "CHANGE THE ESSENCE" OF A DISPUTE
24. Whether the complaining party has expanded the scope of the dispute or changed the
essence of the dispute through the inclusion of a measure in its panel request that was not part of
its consultations request, must be determined on a case-by-case basis.
26
25. To assist in this assessment, the Panel may find guidance in previous jurisprudence, where
the focus has been on the relationship between the measures in the consultation request and
those in the panel request. Emphasis has been placed on whether or not additional measures
found in the panel request are "legally distinct" from the ones identified in the consultation
request, or whether the particular measures are sufficiently legally related to fall within the panel' s
terms of reference.
27 To this end, panels and the Appellate Body have analysed, amongst other
factors, the similarities and differences between the content of the measures, the government
agencies that have issued them, and the legal linkages between the measures.
28

25 First Written Submission of the EU, para. 53.
26 Appellate Body Report, US – Shrimp (Thailand)/US – Customs Bond Directive, para. 293.
27 See for instance the Appellate Body Report, US – Certain EC Products, paras. 60-82.
28 Panel Report, US – Continued Zeroing, para. 7.26.

- D-21 -

ANNEX D-8
EXECUTIVE SUMMARY OF THE ARGUMENTS OF UKRAINE
1. Ukraine believes that this is an important dispute in the context of application of Articles
II (a) and II (b) of the GATT 1994 both due to systemic and trade interests of the involved WTO
members.
2. Ukraine considers Russia's arguments in its Request for a preliminary ruling expansion of the
measures at issue in the Request for establishment of the Panel too narrow and contrary to the
WTO jurisprudence at hand.
3. First, the Appellate Body in Brazil – Aircraft decided that the additional measures can be
considered by the Panel as long as they "relate" to the subject of the consultations (or are the
"same" measure) and "did not change the essence" of the disputed measure. Next, the Appellate
Body in US – Upland Cotton stated that no strict identity between the scope of the consultations
and the request for the panel establishment was required "as long as the complaining party does
not expand the scope of the dispute". Moreover, the Appellate Body in Mexico – Rice considered
that the legal basis of the request for panel establishment has not to be "identical to those set out
in the panel request, provided that the 'legal basis' in the panel request may reasonably be said to
have evolved from the 'legal basis' that formed the subject of consultations" or "the addition of
provisions must not have the effect of changing the essence of the complaint" . Finally, the
Appellate Body in the US – Shrimp dispute declared that this issue has to be determined by panel
"on a case-by-case basis".
4. Taking into account these explanations, Ukraine considers that the panel, on a case- by-case
basis, can consider additional measures or legal provisions as long as they:
 are the same measure in fact or clearly relate to the disputed measures;
 do not change the essence of the disputed measures;
 could have evolved from the subject of the consultations.
5. First, the additional claim on tariff line 4810 92 100 0 is intimately related to the ones
affecting other five tariff lines cited in the Request for Consultations by the EU and constitutes the
same alleged misapplication of the " ad valorem duty rates ". Second, concerning "palm oil and its
fractions, refrigerators and combined refrigerator – freezers", the lack of a mechanism to prevent
a measure that differs in structure from the one in Russian Federation's Schedule of Concessions
and Commitments annexed to the GATT 1994 from exceeding the level of the bound duties clearly
relates to the measures included in the Request for Consultations by the European Union. It does
not change the essence of these measures and is a clear development of the claims that were
subject of the consultations. Finally, while the "twelfth claim" about the violation of the GATT
principles in a number of tariff lines with the same mechanisms as the ones discussed in the
consultations is the largest claim added after the Request for Consultations by the European Union
was submitted, it still concerns the application of the same mechanisms enabled by the same
provisions as the ones covered by the consultations. An alleged systematic violation does not
change the legal or factual aspects of the other disputed measures and could have been
discovered during the consultations stage.
6. Despite the claims of the Russian Federation, Ukraine does not agree that an obligation
exists to establish the fact of levying duties in excess of the bound rate every time the disputed
measure is applied to prove a violation of Article II(b) of the GATT 1994. Quite contrary, the
Appellate Body in the Argentina —
 Textiles and Apparel found a violation of Article II(b) of the
GATT 1994 because the disputed measure results in the levying of customs duties in exc ess of the
bound rate "with respect to a certain range of import prices". Therefore, a measure ca n be in
violation of Article II (b) of the GATT 1994 if it allows for a collection of customs duties in excess of
the bound rate in certain conditions.

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7. On the measures at issue, Ukraine finds that the European Union pointed out a number of
inconsistencies in the tariff treatment of certain goods by the Russian Federation.
8. Specifically, administering ad valorem duties in excess of the ad valorem bound rate
comprise a simple and clear-cut violation of Article II:1 (b) of the GATT 1994. Therefore, Ukraine
supports the European Union's position regarding the disputed measures 1-6.
9. Ukraine also considers that a measure can violate the referred provision if it allows for a
collection of customs duties in excess of the bound rate in certain price conditions. Specifically, if a
measure by its structure and design, results, with respect to a certain range of import prices in
any relevant tariff category to which it applies, in the levying of customs duties in excess of the
bound rate" is in violation of Article II:1 (b) of the GATT 1994. Taking into account these legal
explanations, Ukraine agrees with the European Union's assertions that the measures 7-11 are
administered in violation of Article II:1(b) of the GATT 1994.
10. Moreover, an application of customs duties in excess of those in a Member's Schedule,
inconsistent with the first sentence of Artic le II:1(b), also constitutes "less favourable" treatment
under the provisions of Article II:1(a) as concluded by the Appellate Body in Argentina – Textiles
and Apparel.
11. Ukraine agrees with the European Union that the disputed duties are administered in a way
not consistent with Article II:1 (a) and (b) of the GATT 1994.

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ANNEX D-9
EXECUTIVE SUMMARY OF THE ARGUMENTS OF UNITED STATES
I. INTRODUCTION
1. In this submission, the United States will provide comments on certain legal issues involving
the interpretation and application of Article II of the General Agreement on Tariffs and Trade 1994
(GATT 1994) and Articles 3, 4, and 6 of the Understanding on Rules and Procedures Governing the
Settlement of Disputes (DSU).
II. BACKGROUND
2. In its first written submission, the European Union requests that the Panel find several
Russian measures inconsistent with Russia's obligations under Article II:1(a) and (b) of the
GATT 1994 because Russia allegedly fails to accord to the commerce of another Member treatment
no less favorable than that provided for in its Schedule, and because Russia allegedly imposes
ordinary customs duties in excess of those provided in its Schedule.
3. Specifically, the European Union identifies twelve measures, each of which it alleges
constitutes a breach of Article II:1(a) and (b) of the GATT 1994. Regarding the first six measures
identified, the European Union claims that Russia applies ad valorem duty rates that exceed the
bound ad valorem duty rates set out in Russia's Schedule for certain paper and paperboard
products. Similarly, with respect to the instruments identified as measures 7-11, the European
Union alleges that Russia's applied duty rates differ in form and structure from the bound rates set
out in its Schedule, resulting in excess duties in instances where the customs value of the relevant
goods falls below a certain amount. The twelfth and final measure the European Union identifies is
Russia's alleged "systematic application" of a "type/structure" of duty that varies from the bound
duty "in a way that leads to the application of duties in excess of those provided for in the
Schedule for those goods."
III. RUSSIA'S REQUEST FOR PRELIMINARY RULING
4. With respect to Russia's request for a preliminary ruling, the United States provides the
following comments relating to the proper interpretation and application of Articles 3, 4, and 6 of
the DSU.
A. Article 6.2 of the DSU
5. Russia argues that the European Union's reference to "significant other tariff lines" at
paragraph 11 of the panel request is "too vague and does not allow for the identification of specific
instruments that the reference aims to cover." The United States, however, observes that the
Appellate Body has found that a Member can seek to challenge another Member's measures "as a
whole" and that challenges to the " design or structure of a system" are also permissible. Thus, to
the extent the Panel understands paragraph 11 of the EU panel request as setting out an "as a
whole" or systemic challenge, the United States considers that the Panel should assess whether
the European Union's identification of the legal instruments through which the "significant other
tariff lines" are implemented meets the specificity requirements of Article 6.2 of the DSU.
B. Articles 4 and 6 of the DSU
6. Russia also alleges that the European Union has attempted to expand the scope of the
dispute in contravention of Articles 4 and 6 of the DSU – specifically, by including measures in its
panel request that that the European Union did not list in its Request for Consultations. While the
United States takes no position on the factual merits of Russia's assertions, the United States
notes that several past reports have found that Articles 4 and 6 do not "require a precise and
exact identity between the specific measures and WTO provisions included in the request for

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consultations and the specific measures and WTO provisions identified in the request for the
establishment of a panel." This conclusion is consistent with the text of the DSU.
7. For example, with respect to the WTO legal provisions cited in a panel request, the Appellate
Body found that:
it is not necessary that the provisions referred to in the request for consultations be identical
to those set out in the panel request, provided that the 'legal basis' in the panel request may
reasonably be said to have evolved from the 'legal basis' that formed the subject of
consultations. In other words, the addition of provisions must not have the effect of
changing the essence of the complaint.
8. For these reasons, if the Panel concludes that any newly cited measures that purportedly
appear in the European Union's panel request are of the same "essence" as those set forth in the
European Union's consultation request, the Panel should find that such measures are properly
within its terms of reference.
C. Articles 3.4 and 3.7 of the DSU
9. Russia alleges that the European Union seeks to challenge a measure that "simply does not
exist" and therefore requests that the Panel find that the measure at issue —
namely, "the import
duty applied to tariff line 4810 92 100 0" (measure 6) —falls outside the Panel's terms of reference
in accordance with Articles 3.4 and 3.7 of the DSU. Specifically, Russia emphasizes that the duty
currently applied with respect to tariff line 4810 92 100 0 "is fully consistent with [Russia' s]
commitments" and argues that the Panel should therefore decline to entertain allegations that
Russia " might introduce a level of duty that is not consistent with its WTO obligations in the
future."
10. Assuming arguendo that the facts are as alleged by the European Union, the United States
considers that a measure identified in the panel request and requiring the application of a 15%
duty at a certain future date is a measure properly within the Panel's terms of reference and with
respect to which the Panel must make findings under its terms of reference and the DSU. A
measure that provides for a delayed implementation date is still a "measure" that exists and can
be identified. The GATT 1947 panel in US – Superfund, reasoned similarly when it found that it
could properly examine a tax measure that was not yet in effect, but where relevant legislation
made clear that imposition of the tax was "mandatory" and specified the date upon which the tax
would go into effect.
IV. CLAIMS THAT RUSSIA APPLIES ORDINARY CUSTOMS DUTIES IN EXCESS OF
BOUND RATES
11. The United States will address the first eleven measures below in three categories, in
accordance with the European Union's description of these measures. The first category concerns
measures 1-6, for which the European Union alleges for certain tariff lines that Russia applies ad
valorem duties in excess of the bound ad valorem rates. The next category concerns
measures 7-9, for which the European Union alleges that Russia applies combined duties in excess
of the bound ad valorem rates. The final category concerns measures 10-11, for which the
European Union alleges that Russia applies combined duties in excess of the bound combined duty
rates. For each measure, the European Union alleges an "as such" breach of Article II:1(a) and
(b) of the GATT 1994.
A. Measures 1-
6
12. With respect to measures 1-6, the European Union claims that Russia applies ad valorem
duties in excess of the bound ad valorem rates inscribed in its Schedule. The United States
observes that the European Union has apparently identified specific instances where Russia
explicitly mandates the imposition of ad valorem duties in excess of the bound rates set forth in
Russia's Schedule. If the Panel were to agree that the European Union has established as a matter
of fact that Russia's measures operate as alleged (that is, to impose duties at the levels alleged),
this showing would be sufficient to demonstrate that these measures are inconsistent "as such"
with Russia's obligations under Article II:1(a) and (b) of the GATT 1994.

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13. With respect to tariff line 4810 92 100 0 (measure 6), the fact that the measure is not yet in
effect would not preclude the finding that that the measure is in breach of Article II of the
GATT 1994. The pertinent issue is not the measure's effective date, but whether or not the
measure existed as of the time of panel establishment. And, here, the European Union asserts
that the measure did exist at the time of panel establishment. Specifically, the European Union
argues that the measure in existence at the time of panel establishment, requires, an increase (as
of 31 December 2015) in the applied ad valorem rate to 15%, up from 5% bound rate inscribed in
Russia's tariff schedule. Russia, appears to acknowledge that the legal instrument identified by
the European Union does, in fact, provide for an increase to 15% as of 31 December 2015.
14. The Panel's ultimate disposition of this claim should turn on the Panel's factual determination
of whether or not the EU has shown that a Russian measure (or measures) in existence at the time
of panel establishment required that the rate for tariff line 4810 92 100 0 (measure 6) would
increase to 15 percent on 31 December 2015.
B. Measures 7-9
15.
Regarding the tariff lines identified in measures 7-9, the European Union alleges that where
the value of the goods falls below a certain amount, the applied rate is in excess of the ad valorem
rate set out in Russia's Schedule. The United States agrees with the EU that a prima facie breach
is established where the complaining Member demonstrates that a measure requires the
imposition of duties in excess of bound rates as a mathematical matter in certain factual scenarios.
16. The United States disagrees with Russia's position that the Panel may not make findings on
the above-referenced measures 7 and 8 concerning tariff lines 1511 90 190 2 (palm oil and its
fractions) and 1511 90 990 2 (palm oil and its fractions) because those measures will expire (or
have expired) during the panel proceeding. If – as appears to be the case – these measures
existed at the time of panel establishment, they are properly within the Panel's terms of reference.
This is plain from the text of Articles 6.2 and 7.1 of the DSU, which establishes a panel's terms of
reference. According to Article 7.1, panels shall have the following terms of reference unless the
disputing Parties agree otherwise:
To examine, in the light of the relevant provisions in (name of the covered agreement(s)
cited by the parties to the dispute), the matter referred to the DSB by (name of party) in
document ... and to make such findings as will assist the DSB in making the
recommendations or in giving the rulings provided for in that/those agreement(s).
17. The "matter referred" to the DSB to be examined by the Panel is, pursuant to Article 6
(Establishment of Panels), set out in the panel request as "the specific measures at issue" and the
"brief summary of the legal basis of the complaint" Accordingly, a number of previous reports
have concluded that a measure in existence at the time of panel establishment is properly within a
panel's terms of reference and that it is the legal situation that exists as of panel establishment
that is to be examined by the panel – as a result of the DSB's establishment of a panel with
standard terms of reference.
C. Measures 10-
11
18. Regarding the tariff lines identified in measures 10 and 11, the European Union claims that
Russia applies combined duty rates (combining an ad valorem rate and a specific element) to
certain goods for which Russia's Schedule provides for a formula which requires Russia to impose
the lower of the amounts, namely the lower of the amount based on the application of the ad
valorem rate and the amount based on the application of a combined rate (measures 10-11).
Similar to the U.S. comments on measures 7-9 discussed above, the United States agrees that to
the extent these measures mandate as a mathematical matter the application of duties in excess
of the bound rates set forth in Russia's Schedule, the European Union has established a breach of
Article II:1(a) and (b).

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V. THE EUROPEAN UNION'S CLAIM THAT RUSSIA ENGAGED IN A "SYSTEMATIC DUTY
VARIATION" (MEASURE 12) IN BREACH OF ARTICLE II:1(A) AND (B)
19. The final measure the European Union identifies is an alleged "systematic duty variation
(SDV)", which – according to the European Union – is a "systematic application" of a type and
structure of duty that varies from the bound duty "in a way that leads to the application of duties
in excess of those provided for in the Schedule for those goods." In advancing such a claim, the
European Union bears the burden of proving the existence of a measure that constitutes a rule or
norm of general and prospective application. In this regard, the United States notes that a mere
showing of repeated actions is not sufficient to establish the existence of a rule or norm of general
application. To the extent that the EU is arguing that the "SDV" measure is embodied in one or
more written instruments, the Panel would need to examine whether those instruments, with
perhaps other supporting evidence, establish the existence of such a measure. For example, as
observed by the Appellate Body in Argentina—
Import Measures
A complainant challenging a single measure composed of several different instruments will
normally need to provide evidence of how the different components operate together as part
of a single measure and how a single measure exists as distinct from its components.
20. On the other hand, to the extent the EU is arguing for the existence of an unwritten
measure, the United States recalls the Appellate Body's discussion of the requirements that must
be met to establish the existence of an alleged unwritten measure that constitutes a rule or norm
of general and prospective application. For example, the Appellate Body found that:
A complainant seeking to prove the existence of an unwritten measure will invariably be
required to prove the attribution of that measure to a Member and its precise content.
Depending on the specific measure challenged and how it is described or characterized by a
complainant, however, other elements may need to be proven.
21. In sum, for the European Union to prevail on its claim involving an alleged systematic duty
variation, the European Union will need to first establish the precise content and the existence of
this alleged measure, and then show that the measure results in a breach of Article II of the
GATT 1994.
EXECUTIVE SUMMARY OF U.S. THIRD-
PARTY ORAL STATEMENT AT THE THIRD PARTY SESSION OF THE FIRST
MEETING OF THE PANEL WITH THE PARTIES
A. Introduction
22. The United States appreciates the opportunity to provide our views as a third party in this
dispute. In our third-party submission, we presented views on a number of the issues pertaining
to the European Union's (EU) claims on certain measures of the Russian Federation (Russia) under
Articles II:1(a) and (b) the General Agreement on Tariffs and Trade 1994 (GATT 1994). Today,
the United States will focus its remarks on two matters related to these claims not specifically
addressed in the U.S. third-party submission.
B. The Relevance of Russia's Additional Commitments in the Working Party Report
23. With respect to the tariff lines under measures 10 and 11, Russia appears to present a
defense based on certain language in the Working Party Report that accompanied Russia's Protocol
of Accession. Russia notes that, pursuant to paragraph 313 of its Working Party Report, Russia
committed to calculate applied ad valorem rates based on trade " data […] from a three year
period, determined by taking trade data from a recent five-year representative period and
excluding data for years with the highest and lowest trade for that period." In Russia's first written
submission, Russia argues that the EU has not established a breach of Articles II:1(a) or (b)
because the EU has failed to proffer evidence demonstrating that Russia on average – pursuant to
the three- and five- year methodology in the Working Party Report – applies rates in excess of the
bound combined rates set forth in Russia's Schedule.
24.
The United States does not find this argument to amount to a valid defense to the EU' s
prima facie showing of a breach of Article II:1 of the GATT 1994. Based on the plain language of

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paragraph 313 of the Working Party Report, Russia has made an additional commitment to make
annual adjustments to its specific duty rates to ensure that bound ad valorem rates are not
exceeded. And, nothing in this additional commitment can be read as relieving Russia of its
fundamental obligations to comply with Articles II:1(a) or (b) in all instances. In sum, the United
States is of the view that paragraph 313 of Russia's Working Party Report in no way circumscribes
Russia's obligations under Articles II:1(a) and (b) of the GATT 1994.
C. The EU's Consequential Argument Regarding the Alleged "SDV Measure"
25. The United States is not situated to take a position on whether the EU has adequately
demonstrated the existence of the alleged SDV measure. However, the United States would like to
address the EU's consequential argument – namely, that the Panel should find the existence of an
alleged "SDV" measure in order to facilitate the presentation of claims in the current proceeding.
On reflection, we are not fully convinced by these arguments.
26. The EU contends that a finding on the existence of an alleged SDV measure is warranted
because Russia's duties "are subject to frequent changes" and are therefore a "moving target."
The United States further notes the EU's related concern that " requiring legal challenges…to zero
in on the specific situation of any given tariff line at a specific point in time would make it
impossible to address the numerous similar violations in any practical way, other than by
identifying the SDV as a distinct violation of Article II."
27. The fact that a panel reviews the measures in existence at the time of panel establishment
does not imply that a complaining Member must initiate an entirely new dispute to address a
revision to a measure found to be in breach of WTO obligations. That is, if the responding Member
substantively changes the challenged measure during the dispute settlement proceeding – or at
some time thereafter – that measure could be subject to review as a measure taken to comply in a
proceeding under Article 21.5 of the DSU.
28. Applying that principle here, if the Panel were to find that duties currently applied by
Russia's measures are inconsistent with Russ ia's obligations under GATT 1994 Article II, and
Russia subsequently amends the duty rate measures at issue, the United States understands that
the EU could choose to challenge those measures in an Article 21.5 compliance proceeding to the
extent they continued to provide for the application of duties in excess of Russia's bound rates.
Accordingly, the United States is not fully persuaded that a concern with a "moving target" of
potential future tariff changes warrants a "general finding" on an alleged SDV measure.