UNITED STATES – CONTINUED SUSPENSION OF OBLIGATIONS IN THE EC – HORMONES DISPUTE
Document: Request for the Establishment of a Panel by the European Communities
Date: 14 January 2005
Document codes: WT/DS320/6
Complainant: EU
Respondent: U.S.
Third parties: Australia, Brazil, Canada, China, Taiwan, India, Mexico, New Zealand, Norway
Dispute stage: Appellate Body
Agreements cited: Art. I, II  GATT 1994Art. 3.7, 22, 23.1, 23.2, 21.5  Dispute Settlement Understanding (DSU)

UNITED STATES – CONTINUED SUSPENSION OF OBLIGATIONS
IN THE EC – HORMONES DISPUTE

Request for the Establishment of a Panel by the European Communities

 The following communication, dated 13 January 2005, from the delegation of the European
Communities to the Chairperson of the Dispute Settlement Body, is circulated pursuant to Article 6.2
of the DSU.

 The European Communities hereby requests the establishment of a panel pursuant to
Articles 4.7 and 6 of the Understanding on Rule s and Procedures Governing the Settlement of
Disputes ("DSU") and Article XXIII of the General Agreement on Tariffs and Trade 1994
("GATT 1994"). This request concerns the Unite d States' continued suspension of concessions and
other obligations under the covered agreements, wit hout recourse to the procedures established by the
DSU, after the European Communities has removed the measures found to be inconsistent with WTO
law in case DS26, European Communities – Measures con cerning meat and meat products
(Hormones) ("EC – Hormones").
1

1. THE HISTORY OF THE DISPUTE

 On 13 February 1998, the Dispute Settlement Body ("DSB") adopted th e panel and Appellate
Body reports in EC – Hormones. In doing so, the DSB recommended that the European Communities
bring the measures at issue into conformity with WTO rules. The Arbitrator appointed pursuant to
Article 21.3(c) of the DSU determined that th e European Communities shall have a "reasonable
period of time" until 13 May 1999 to comply with the recommendations. On 26 July 1999, the
United States obtained from the DSB the authorization to suspend obligations up to the level of 116.8
million US Dollars per year. The arbitrators ac ting pursuant to Article 22.6 of the DSU had
previously determined this leve l to be equivalent to the leve l of nullification or impairment
(Article 22.4 of the DSU) suffered by the United St ates at the time of its recourse to arbitration in
May 1999. On 29 July 1999 and pursuant to the DSB's authorization, the United States introduced
import duties in excess of bound rates to imports from the European Communities by imposing a
100 % ad valorem rate of duty on a list of articles that are the products of certain EC Member States.
2

 The European Communities subsequently removed the measure found to be inconsistent with
a covered agreement. It adopted Directive 2003/74/EC of the European Parliament and of the Council
of 22 September 2003 amending Council Directive 96/ 22/EC concerning the prohibition on the use in

1 At its meeting on 13 February 1998, the Dispute Settlement Body adopted the Appellate Body report
(WT/DS26/AB/R) and the panel report (WT/DS26/R/USA), as modified by the Appellate Body report, DSB,
Action by the DSB, WT/DS26/13, 19 February 1998.
2 These measures were published in the Federal Register Notice in Vol. 64, No. 143 of 27 July 1999.

stockfarming of certain substances having a hormonal or thyrostatic action and of beta-agonists. The
Directive was published and entered into force on 14 October 2003.

 In conformity with the recommendations and ru lings of the DSB and the covered agreements,
the new EC legislation is based on comprehensive risk assessments, in particular on the opinions of
the independent Scientific Committee on Veteri nary Measures relating to Public Health.
3 The risk
assessments focussed on potential risks to human he alth from hormone residues in bovine meat and
meat products, in particular such risks arising from residues of si x hormonal substanc es: oestradiol
17β, testosterone, progesterone, trenbo lone acetate, zeranol and melengest rol acetate. In carrying out
the risk assessments, the European Communities initiated and funded a number of specific scientific
studies and research projects. It addressed specific requests to the United States, Canada and third
countries to provide any recent scientific data and in formation in their possession. It took account of
the findings of various independent expert bodies.

 In light of the risk analyses carried out, the European Communiti es concluded that the
avoidance of intake of oestradiol 17 β is of absolute importance to human health and that,
consequently, the placing on the market of meat cont aining this substance should be prohibited. With
respect to testosterone, progesterone, trenbolone acetate, zeranol and melengestrol acetate, and on the
basis of the available pertinent scientific informa tion reflected in the above-mentioned risk analyses,
the European Communities provisionally prohibited the placing on the market of meat containing
these substances because the relevant scientific evidence was insufficient.

 On 27 October 2003, the European Communities notified to the DSB the adoption,
publication and entry into force of this Directive as well as the preceding scientific risk assessments.
In the same communication, the European Communities explained that it considers itself to have fully
implemented the recommendations and rulings of the DSB in the EC – Hormones dispute and that, as
a consequence, it considers the United States' su spension of concessions vis-à-vis the European
Communities to be no longer justified.
4

 The United States disagreed and denied that the new Directive was based on science and that
it implemented the DSB's recommendations and rulings. The United States formally stated in the
DSB that it considered the new Directive to be inconsistent with the European Communities
obligations under the SPS Agreement
5 and that it would continue to impose retaliatory duties on
certain products from the European Communities.6

2. THE OBJECT OF THE DISPUTE

 Despite its judgment that the European Commun ities' new Directive is inconsistent with the
SPS Agreement (formally communicated to the Members of the WTO in the DSB), the United States
refused to initiate dispute settlement proceedings under Article 21.5 of the DSU in order to obtain a
review of the new Directive's consistency with the recommendations and rulings of the DSB. The
United States also rejected several proposals exte nded to it by the European Communities to establish

3 Opinion of the Scientific Committee on Veterinary Measures Relating to Public Health: Assessment
of potential risks to human health from hormone residues in bovine meat and meat products (30 April 1999);
Opinion on review of previous SCVPH opinions of 30 April 1999 and 3 May 2000 on the potential risks to
human health from hormone residues in bovine meat and meat products (adopted on 10 April 2002) and Review
of specific documents relating to the SCVPH opinion of 30 April 99 on the potential risks to human health from
hormone residues in bovine meat and meat products (adopted on 3 May 2000).
4 European Communities – Measures concerning meat and meat products (Hormones) ,
Communication from the European Communities, WT/DS26/22, WT/DS48/20, 28 October 2003.
5 DSB, Minutes of Meeting held on 7 November 2003 , WT/DSB/M/157, 18 December 2003, paras. 29-
30.
6 See id., paras. 30, 32.

an agreed procedure for resolving this dispute. At the same time (and as announced in the DSB), the
United States maintained the suspension of its oblig ations in relation to imports from the European
Communities and continued to impose import duti es in excess of bound rates on imports from the
European Communities.

 This conduct by the United States is inconsiste nt with the United States' obligations under
Articles I and II of GATT 1994 and Articles 23.1; 23.2(a) and (c); 3.7; 22.8 and 21.5 of the DSU.

 The United States has acted inconsistently with Article 22.8 of the DSU by failing to apply
the suspension of concessions or other obligations only until such time as the measure found to be
inconsistent with a covered agreement has been removed, or the implementing Member has provided
a solution to the nullification or impairment of benefits previously caused to the United States.

 The United States has acted inconsistently w ith Articles I and II of GATT 1994 by imposing
import duties in excess of bound rates on imports from the European Communities. In violation of
Article I of GATT 1994, the United States has failed to accord an advantage granted, with respect to
customs duties, to products originating in other countries immediately and unc onditionally to the like
products originating in the territory of the European Communities. Inconsistent with Article II:1(a) of
GATT 1994, the United States has failed to accord to the commerce of another Member treatment no
less favourable than that provided for in the appr opriate part of the Schedule annexed to the GATT
1994 and, inconsistent with Article II:1(b) of GA TT 1994, the United States has also failed to exempt
products, which are the products of territories of another Member, on their importation into the United
States' territory, from ordinary customs duties in excess of those set forth and provided in the United
States' Schedule.

 The United States has acted inconsistently with Article 23.1 of the DSU by failing to have
recourse to, and abide by, the rules and procedures of the DSU, in a situation where it seeks redress of
an alleged violation of obligations under a covered agreement. In the particular instance, the United
States failed to have recourse to dispute settlement pur suant to Article 21.5 of the DSU, in a situation
where there is a disagreement as to the existenc e or consistency with a covered agreement of
measures taken to comply with DSB recommendations and rulings.

 The United States has acted inconsistently with Article 23.2(a) of the DSU. In a situation
where it sought redress of an alle ged violation of obligations unde r a covered agreement, the United
States unilaterally made a determination to the effect that the new EC legislation is in violation of the
European Communities' obligations under the c overed agreements, despite the removal of the
measures found to be inconsistent. The United Stat es made such a determination without recourse to
dispute settlement in accordance w ith the rules and procedures of the DSU and, as a consequence, in
the absence of findings contained in an adopted panel or Appellate Body report or arbitration award
rendered under the DSU.

 By applying the suspension of concessions or other obligations against the new EC
legislation, the United States has ac ted inconsistently with Articles 23. 2(c) and 3.7 of the DSU. The
United States has failed to follow the procedures set forth in Article 22 of the DSU and to obtain DSB
authorization in accordance with those procedures be fore suspending concessions or other obligations
under a covered agreement in response to the allege d failure of another Member to implement DSB
recommendations and rulings. Simultaneously, the Un ited States has suspended the application of
concessions or other obligations under the covered ag reements on a discriminatory basis vis-à-vis the
European Communities, without ongoing authorization by the DSB of such measures.

3. REQUEST FOR THE ESTABLISHMENT OF A PANEL

 On 8 November 2004, the European Communiti es requested consultations with the United
States of America with a view to reaching a mutually satisfactory solution of the matter. The request
was circulated in document WT/DS/320/1 dated 10 November 2004. The consultations were held on
16 December 2004 in Geneva. They have allowe d a better understanding of the respective positions
but have not led to a satisfactory resolution of the matter.

 Therefore, the European Communities respectfully requests that a panel be established, with
the standard terms of reference, to consider th e above complaint with a view to finding that the
conduct by the United States is inconsistent with th e United States' obligations under the DSU and the
GATT, in particular, but not necessarily exclusively, under Articles I and II of GATT 1994 and
Articles 23.1; 23.2(a) and (c); 3.7; 22.8 and 21.5 of the DSU.

 The European Communities asks that this request be placed on the agenda for the meeting of
the Dispute Settlement Body to be held on 25 January 2005.