EUROPEAN COMMUNITIES - REGIME FOR THE IMPORTATION, SALE AND DISTRIBUTION OF BANANAS
Document: Original: English EUROPEAN COMMUNITIES - REGIME FOR THE IMPORTATION, SALE AND DISTRIBUTION OF BANANAS Notification of an Appeal by the European Communities under paragraph 4 of Article 16 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU)
Date: 13 June 1997
Document codes: WT/DS27/9
Complainant: Ecuador, Guatemala, Honduras, Mexico, U.S.
Respondent: EU
Third parties: Belize, Cameroon, Canada, Colombia, Costa Rica, Dominica, Dominican, Ghana, Grenada, India, Jamaica, Japan, Mauritius, Nicaragua, Panama, Philippines, Saint Lucia, Saint Vincent and the Grenadines, Senegal, Suriname, Venezuela, Côte d’Ivoire, Brazil, Madagascar
Dispute stage: Mutually Agreed Solution
Agreements cited: Art. I, II, III, X, XI, XIII  GATT 1994Art. 1, 3  Import LicensingArt. II, XVI, XVII  Services (GATS)Art. 2  Trade-Related Investment Measures (TRIMs)Art. 19  Agriculture

EUROPEAN COMMUNITIES - REGIME FOR THE IMPORTATION,
SALE AND DISTRIBUTION OF BANANAS
Notification of an Appeal by the European Communities under
paragraph 4 of Article 16 of the Understanding on Rules
and Procedures Governing the Settlement of Disputes (DSU)
The following notification, dated 11 June 1997, sent by the European Communities to the Dispute
Settlement Body (DSB), is circulated to Members. This notification also constitutes the Notice of Appeal,
filed on the same day with the Appellate Body, pursuant to the Working Procedures for Appellate Review.
Pursuant to paragraph 4 of Article 16 of the Understanding on Rules and Procedures Governing
the Settlement of Disputes (DSU) and Rule 20 of the Working Procedures for Appellate Review, the
European Community hereby notifies its decision to appeal to the Appellate Body certain issues of
law covered in the four panel reports on ( in the four versions).
The European Community requests that the Appellate Body review a number of errors of law
and certain legal interpretations developed by the Panel in its report. These errors of law and legal
interpretations to be reviewed by the Appellate Body include the following:
(a) The Panel erred in law in finding that the Complainants' panel request was sufficient to meet
the requirements of Article 6.2 of the DSU.
(b) The Panel erred in law in finding that the United States had a legal right or interest in advancing
claims under the GATT.
(c) The Panel erred in law in its interpretation of the Agreement on Agriculture and, in particular,
of Articles 4.1 and 21.1 of that Agreement and their relation to the GATT, in particular its
Article XIII.
(d) In the alternative: the Panel erred in its interpretation of Article XIII of GATT, in particular
paragraph 2(d) (both in relation to the allocation of country shares in the Tariff Rate Quota
(TRQ)) for bananas and to the tariff quota reallocation rules of the Banana Framework
Agreement (BFA).
(e) The Panel erred in law when ruling that the erga omnes TRQ for bananas and the preferential
regime for parties to the Lomé IV Convention constitute a single import regime for bananas.

(f) The Panel erred in law in its interpretation of the scope and coverage of the Lomé IV waiver
and of the requirements resting on the EC under the Lomé IV Convention.
(g) The Panel erred in law in its interpretation of Article X:3a in finding that operator category
and activity function rules should have been applied also to the traditional banana imports under
the ACP preferential scheme.
(h) The Panel erred in law in its interpretation of Article 1.3 of the Licensing Agreement, in
particular in its relation to Article X:3a of GATT.
(i) The Panel erred in law in its interpretation of Article III:4 of the GATT as applied to the EC
rules on licensing for the management of the TRQ, and more particularly in its interpretation
of the notion “ competitive opportunities” .
(j) The Panel erred in law in its interpretation of Article I:1 of GATT in relation to the activity
function rules and the BFA export certificates.
(k) The Panel erred in law in accepting that GATT and GATS are two mutually overlapping
agreements andinfindingthatthemeasures complained ofinthepresentcase fallsimultaneously
under GATT and GATS.
(l) The Panel erred in law in its application of rules on the burden of proof, more in particular
under the GATS.
(m) The Panel erred in law in applying GATS retroactively to the EC banana regime.
(n) The Panel erred in law in its interpretation of Article II of GATS, in particular by reading
elements of competitive conditions in to the article which are not there.
(o) The Panel erred in law in its definition and application of the scope of the category “ wholesale
trade services” .
(p) In the alternative: the Panel erred in law in finding that competitive conditions under Articles
XVII and II of GATS were upset to the detriment of Complainants' service suppliers in respect
of: operator category rules, activity function rules, BFA export certificates and hurricane
licenses.
(q) The Panel erred in law in its implicit determination that the US has suffered nullification and
impairment under the GATT.
(r) The Panel has failed in its obligation to make an objective assessment of the matter before it
under Article 11 of the DSU, inter alia with respect to points (b), (i), (l) and (q) above.
(s) The Panel has failed in its obligation to interpret the WTO and its annexed agreements in
conformity with the customary rules of interpretation of public international law under Article
3.2 of the DSU, inter alia with respect to points (b) (k) and (m) above.