BRAZIL – MEASURES AFFECTING IMPORTS OF RETREADED TYRES
Document: Status Report by Brazil
Date: 10 March 2009
Document codes: WT/DS332/19
Complainant: EU
Respondent: Brazil
Third parties: Argentina, Australia, China, Cuba, Guatemala, Japan, South Korea, Mexico, Paraguay, Taiwan, Thailand, U.S.
Dispute stage: Appellate Body
Agreements cited: Art. I:1, III:4, XI:1, XIII:1  GATT 1994

BRAZIL – MEASURES AFFECTING IMPORTS OF RETREADED TYRES

Status Report by Brazil

 The following communication, dated 9 March 2009, from the delegation of Brazil to the
Chairman of the Dispute Settlement Body, is circulated pursuant to Article 21.6 of the DSU.

Status Report Regarding Implementation of the

DSB Recommendations and Rulings in the Dispute

(WT/DS332)

1. Brazil submits this report in accordance with Article 21.6 of the Understanding on Rules and
Procedures Governing the Settlement of Disputes.

2. On 17 December 2007, the Dispute Settlement Body ("DSB") adopted the Panel and the
Appellate Body reports in ( WT/DS332). At
the DSB meeting on 15 January 2008, Brazil informed the DSB of its intention to implement the
recommendations and rulings of the DSB. At the same meeting, Brazil stated that it would need a
"reasonable period of time" to do so, according to Article 21.3 of the DSU.
3. In January 2008, Brazil and the EC initiate d discussions with a view to agreeing on a
"reasonable period of time". The matter was refe rred to arbitration by the EC pursuant to
Article 21.3(c) of the DSU on 4 June 2008. The Ar bitrator was composed by the Director-General on
26 June 2008. The arbitration award, circulated on 29 August 2008, established that the reasonable
period of time for the implementation was 12 months.
4. The Brazilian Government has been actively wo rking with the objective of reinforcing and
strengthening the effectiveness of Brazil's comprehe nsive strategy to deal with waste tyres. In
September 2006, the President of Brazil petitioned the Supreme Court to issue a final ruling to prevent
lower courts from issuing preliminary injunctions allo wing imports of used tyres in Brazil, as well as
to revoke injunctions already granted
1.

1 See Panel Report, para. 7.240/ Brazil’s answer to panel’s question no. 14. See ADPF 101, electronic
petition in http://www.stf.jus.br/portal/cms/verTexto.asp?servico=processoAudienciaPublicaAdpf101.

5. The judicial action was brought to the Supreme Court in the form of an Allegation of
Violation of Fundamental Precept ("ADPF" in Portugu ese), an instrument introduced in Brazil's legal
system in 1999
2 to address acts that violate constitutional rights and guarantees. The ADPF is also a
measure of last resort having binding power over all other judicial decisions in Brazil. The judicial
action at hand, "ADPF 101", was presented followi ng the Executive's understanding that imports of
used tyres infringe on the constitutional right to health (Article 196 of the Federal Constitution 3) and
to an ecologically balanced environment (Article 225 of the Federal Constitution4).
6. On 27 June 2008, a public hearing took place concerning ADPF 101 5, where representatives
of the Government, the civil society and the pr ivate sector had the opportunity to express their
perspectives on the case. On 5 November 2008, as part of the Procedures of this judicial action, the
General Prosecutor of Brazil addressed his Opinion to the Supreme Court, which was in favor to the
requirement presented by the Executive. The report from the judge-rapporteur for ADPF 101 is
expected to be considered by the members of th e Supreme Court in the following days. Detailed
information about the ADPF 101 and its procedural steps can be found in the Supreme Court's
website: www.stf.jus.br
6.
7. Brazil believes that a result favourable to the Executive's request will bring Brazilian
measures into compliance as regards to the impor ts of used tyres. he judgment of ADPF 101
constitutes a fundamental step in the strengthening of Brazil's environmental policy as well as for the
implementation of this dispute, as has been ackno wledged by the Arbitrator in the Article 21.3
proceedings.
8. Brazil has been in permanent contact with its pa rtners from Mercosur on this issue through all
the panel and Appellate Body procedures. As s oon as the DSB adopted the Reports of the Panel and
the Appellate Body, Brazil initiated consultations with Argentina, Paraguay and Uruguay about the
implementation of the recommendations and ru lings of the DSB concerning the MERCOSUR
exemption.

2 See Law N. 9882/1999. The law was based on Ar ticle 102, Brazil’s Federal Constitution of 1988,
which provides: "par. 1. A arguição de descumprimento de preceito fundamental, decorrente desta Constituição
será apreciada pelo Supremo Tribunal Federal, na forma da lei". (Unofficial transl ation: "Paragraph 1. An
allegation of violation of a fundamental precept derived from this Constitution shall be examined by the Federal
Supreme Court, under the terms of the law").
3 ("Art. 196. A saúde é direito de todos e dever do Estado, garantido mediante políticas sociais e
econômicas que visem à redução do risco de doença e de outros agravos e ao acesso universal e igualitário às
ações e serviços para sua promoção, proteção e recuperação.) (Unofficial translation: "Health is a right of all and
a duty of the State and shall be guaranteed by means of social and economic policies aimed at reducing the risk
of illness and other hazards and to the universal and e qual access to actions and services for its promotion,
protection and recovery").
4 "Art. 225. Todos têm direito ao meio ambiente ecologicamente equilibrado, bem de uso comum do
povo e essencial à sadia qualidade de vida, impondo-se ao Poder Público e à coletividade o dever de defendê-lo
e preservá-lo pra as presentes e futuras gerações") (Uno fficial translation: "Every person has the right to a
balanced environment, a common good essential to a hea lthy quality of life, and both the Govern;ent and the
people shall have the duty to protect and preserve it for present and future generations").
5 In this hearing, Brazil’s Minister of Environment, as well as experts from Brazil’s environmental
agency (IBAMA), the Health Ministry , and an NGO, spoke against the importation of used tyres due to its
impact on Brazil’s public health and environment. The General Prosecutor, heard as custos legis , endorsed
these arguments and supported the clai m presented by the Solicitor General on behalf of the President of the
Republic. Following the hearing, which was broadcast by the Supreme Court’s television channel, the reporting
Justice, Carmen Lúcia Antunes Rocha, explained that the Parties and the General Prosecutor would next be
asked to present additional information.
6 http://www.stf.jus.br/portal/processo/verProcessoAndamento.asp?numero=101&classe=ADPF&orig
em=AP&recurso=0&tipoJulgamento=M

9. As a result of these consultations, Brazil took the initiative to propose the negotiation of a
common trade regime for tyres with its MERCOSUR pa rtners. At the first ordinary meeting of the
Common Market Group ("GMC") following the adopti on of the Panel and Ap pellate Body Reports,
held on 15-16 April 2008, Brazil proposed a GMC Resolution to create an Ad Hoc Working Group on
the Regional Policy for Tyres. In a meeting held on 29 June 2008, the GMC approved the Resolution
and established the Working Group. 7 The Ad Hoc Working Group on tyres met formally for the first
time in 2 September 2008 and is curr ently engaged in technical debate with a view to fulfilling its
mandate.
10. On 5 January 2009, Brazil and European Communities celebrated a procedural agreement
regarding Article 22 of the DSU. Details of this agreement are provided in WT/DS332/13. Brazil and
the EC continue to engage in bilateral discussi on and exchange of information with the goal of
resolving this dispute.