EUROPEAN COMMUNITIES – EXPORT SUBSIDIES ON SUGAR
Document: Notification of an Other Appeal by Australia under Article 16.4 and Article 17 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU), and under Rule 23(1) of the Working Procedures for Appellate Review
Date: 25 January 2005
Document codes: WT/DS265/27
Complainant: Australia
Respondent: EU
Third parties: Barbados, Belize, Brazil, Canada, China, Colombia, Cuba, Fiji, Guyana, India, Jamaica, Kenya, Madagascar, Malawi, Mauritius, New Zealand, Paraguay, Saint Kitts and Nevis, Eswatini, Tanzania, Thailand, Trinidad and Tobago, U.S., Côte d’Ivoire
Dispute stage: Appellate Body
Agreements cited: Art. 3.3, 8, 9.1, 10.1  AgricultureArt. 3.2, 3.1(a)  Subsidies and Countervailing Measures (SCM)

EUROPEAN COMMUNITIES – EXPORT SUBSIDIES ON SUGAR

Notification of an Other Appeal by Australia
under Article 16.4 and Article 17 of the Understanding on Rules
and Procedures Governing the Settlement of Disputes (DSU),
and under Rule 23(1) of the Working Procedures for Appellate Review

 The following notification, dated 25 January 2 005, from the Delegation of Australia, is being
circulated to Members.

Appellate Body in accordance with the provisi ons of paragraph 9 of Article 17 of the
Understanding on Rules and Procedures Governing the Settlement of Disputes (the " DSU"),
Australia hereby notifies its decision to appeal to the Appellate Body on the basis of errors
both in certain issues of law covered in the report of the Panel on () (the "Panel Report") and in certain legal
interpretations developed by the Panel in the Panel Report.

2. Australia seeks appellate review of:

(a) the Panel's decision, as set out in paragr aphs 7.380-7.387 and in paragraphs 6.14-6.15
of the Panel Report, to exercise judi cial economy and to decline to examine
Australia's claims under Articles 3.1(a) and 3.2 of the Agreement on Subsidies and
Countervailing Measures ("SCM Agreement"); and
(b) the Panel's consequent failure to ma ke a recommendation in accordance with the
provisions of Article 4.7 of the SCM Agreement.

3. The Panel's decision was based on the following errors of law and legal interpretation:

(i) that the Panel's findings under the Agreement on Agriculture should be sufficient to
fully resolve the matter at issue (paragraph 7.383);
(ii) that there was some issue whether the Panel was entitled to make a recommendation
to withdraw the measure and to specify a time period in accordance with the
provisions of Article 4.7 of the SCM Agreement in the circumstances before it
(paragraph 7.384);
(iii) that the Panel was not required to rule on Australia's claims under the SCM
Agreement "merely in order to obtain what might – but would not necessarily be –
more rapid compliance" (paragraph 7.384);
(iv) that the Panel's exercise of judicial eco nomy did not diminish Australia's rights within
the meaning of Article 19.2 of the DSU (paragraph 7.385); and

(v) the additional considerations in its decisi on to exercise judicial economy, being, in its
view, that Australia focused on its claims under the Agreement on Agriculture and
had not set forth its claims under Article 3 of the SCM Agreement in quite as clear and
unambiguous a manner as under the Agreement on Agriculture (paragraphs 6.15 and
7.386).

4. In deciding to exercise judicial economy in respect of Australi a's claims under the SCM
Agreement, the Panel deprived Australia of its rights in regard to:

- a recommendation, in accordance with Article 4.7 of the SCM Agreement, that those export
subsidies on sugar found inconsistent with the SCM Agreement be withdrawn without delay;
- a recommendation, in accordance with Article 4.7 of the SCM Agreement, specifying a time-
period for withdrawal of the export subsidies in question;
- taking countermeasures in accordance with the provisions of Article 4.10 of the SCM
Agreement in the event that the subsidies in questio n were not withdrawn within the specified
time-period; and
- the application of special or additional ru les and procedures, in accordance with the
provisions of Article 1.2 and Appendix 2 of the DSU.

5. The Panel's decision to exercise judicial economy also serves to diminish Australia's rights
under, and is inconsistent with, the provisions of Articles 1.2, 3.2, 3.4, 3.7 and 19.2 of the
DSU. The Panel's decision is also inconsistent with the Panel's duty under Article 11 of the
DSU to make such findings as will assist th e DSB in making the recommendations or in
giving the rulings provided for in the covered agreements.

6. Australia requests that the Appellate Body reve rse the Panel's legal fi ndings and conclusions
in respect of the exercise of judicial economy in regard to the provisions of the SCM
Agreement. Australia further requests the Appellate Body to preserve Australia's rights under
Articles 4.7 and 4.10 of the SCM Agreement, in accordance with Articles 1.2, 3.2 and 19.2 of
the DSU, by ruling - on the basis of factual findings by the Panel and the undisputed facts on
the Panel record - on Aust ralia's claims under Articles 3.1(a) and 3.2 of the SCM Agreement
and to make the recommendation provided for under Article 4.7 of the SCM Agreement.

7. Australia cites paragraphs 6.14-6.15 and 7.380- 7.387 of the Panel Report as an indicative list
of paragraphs containing relevant errors in issues of law and le gal interpretation developed by
the Panel. Australia also cites paragraphs 3.4, 3.8, 4.2-4.3, 4.102-4.121, 4.177, 4.232-4.266,
7.234, 7.237, 7.375-7.381 and 8.1(e) of the Panel Report as an indicative list of paragraphs
relevant to its request in paragraph 6 above of this Notice of Other Appeal.

8. Australia cites the following legal provisions of the covered agreements as those that the
Panel erred in interpreting or applying:

- SCM Agreement: Articles 3.1(a) and 3.2, 4.7 and 4.10;
- Agreement on Agriculture: Article 21.1; and
- DSU: Article 1.2 and Appendix 2; Articles 3.2, 3.4, 3.7, 11 and 19.