Document: Panel report
Date: 7 May 2003
Document codes: WT/DS246/R
Complainant: India
Respondent: EU
Third parties: Bolivia, Plurinational State of, Brazil, Colombia, Costa Rica, Cuba, Ecuador, El Salvador, Guatemala, Honduras, Mauritius, Nicaragua, Pakistan, Panama, Paraguay, Peru, Sri Lanka, Venezuela, U.S.
Dispute stage: Appellate Body
Agreements cited: Art. I:1  GATT 1994

ANNEX A

Request for Enhanced Third-Party Rights

Decision of the Panel

1. On 31 March 2003, 11 third parties in this case (Bolivia, Colombia, Costa Rica, Ecuador,
El Salvador, Guatemala, Honduras, Nicaragua, Pana ma, Peru and Venezuela, hereafter referred to
collectively as "the Applicants") requested that the Panel accord them enhanced third-party rights.
Specifically, the Applicants request permission: to attend all the Panel meetings; to present their
points of view at such meetings; to receive copies of all submissions to the Panel; to make
submissions to the Panel at its second meeting; and to review the draft summary of arguments in the
descriptive part of the Panel report. In support of their request, the Applicants argue that their
substantial interest is of special importance in this dispute, since the measure at issue determines the
conditions of access of their exports to the European market as beneficiaries of the tariff preference
scheme established by the European Communities ("EC").

2. On 8 April 2003, the Panel invited the parties and the seven third parties other than the
Applicants to comment, by 17 April 2003, on the Appli cants' request for enhanced third-party rights.
India and the EC, along with third parties Brazil, Cuba, Mauritius, Pakistan, Paraguay and the United
States ("US"), each submitted comments by the 17 Ap ril deadline. No comments were received from
Sri Lanka.

3. In their request, the Applicants draw a para llel between their interest in the present case and
the interest of the beneficiary African, Caribbean and Pacific ("ACP") developing countries in the
WTO dispute on EC – Bananas III (WT/DS27) . The Applicants claim that as beneficiaries of the
tariff preferences under the EC's Drug Arrangements, they are very similarly situated to the ACP
countries benefiting from EC preferences under th e Lomé Waiver. They point out that in EC –
Bananas III, that panel granted certain additional rights to third parties.

4. In its comments to the Panel, India first argues that it considers the interests of the Applicants
and other third parties to be amply protected by the rights provided under the DSU and the Working
Procedures adopted in this dispute. However, India considers that, should the Panel grant the
Applicants' request, it should limit the a dditional rights to those provided in EC – Bananas III and
extend them to all developing country third parties in this case, not only to the Applicants, but should
not extend such rights to third party US because, as asserted by India, the US has not advanced
sufficient justification therefor. India also cautions the Panel not to permit a blurring of the
procedural rights accorded to parties with those accorded to third parties.

5. In its comments, the EC supports the granting of enhanced rights to all the beneficiaries of the
Drug Arrangements (Bolivia, Colombia, Costa Rica, Ecua dor, El Salvador, Guatemala, Honduras,
Nicaragua, Panama, Pakistan and Peru), arguing that these countries are in a special situation
analogous to that of the ACP countries in EC – Bananas III. While the EC does not consider that the
circumstances invoked by Brazil, Paraguay and the US , if considered alone, justify the granting of
additional rights to those WTO Members, the EC indicates that it would not object to the Panel
granting enhanced rights also to the third parties w ho are not beneficiaries of the Drug Arrangements.
The EC expresses no opinion in relation to third parties Cuba, Mauritius, Sri Lanka and Venezuela.

6. In its comments, Pakistan states that as a third party having both systemic and trade concerns,
it "joins" the Applicants in requesting enhanced third-party rights. Third parties Brazil, Cuba,
Mauritius, Paraguay and the US all indicate that while they take no position on whether or not

additional third-party rights are justified in this case, they all request that, should the Panel decide to
grant enhanced rights, it should grant such rights to all third parties.

7. Having carefully considered the arguments of the parties and third parties in this case, the
Panel considers as follows:

 (a) There are significant similarities between this case and that of EC – Bananas III
(WT/DS27) in terms of economic impact of the preference programmes on third-party
developing countries. Both those third par ties that are benefici aries under the EC's
Drug Arrangements and those that are excl uded have a significant economic interest
in the matter before this Panel.

 (b) The outcome of this case could have a significant trade-policy impact on the US as a
preference-giving country.

 (c) As a matter of due process, it is appropria te to provide the same procedural rights to
all third parties in this dispute.

 (d) In granting any additional rights to third parties, it is important to guard against an
inappropriate blurring of the distinction dr awn in the DSU between parties and third
parties.

8. Accordingly, the Panel decides that, beyond those rights already provided for in the DSU and
in the Working Procedures adopted for this Panel, the following additional rights are granted to all
third parties in this case:

• observe the first substantive meeting with the parties;
• receive the second submissions of the parties;
• observe the second substantive meeting with the parties;
• make a brief statement during the second substantive meeting with the parties;
• review the summary of their respective arguments in the draft descriptive part of the panel
report.

9. The Panel wishes to make clear that it do es not expect third parties to submit additional
written material other than responses to any questions posed to them by the Panel.

Julio Lacarte-Muró
Marsha A. Echols
Akio Shimizu