EUROPEAN COMMUNITIES – MEASURES CONCERNING MEAT AND MEAT PRODUCTS (HORMONES) ORIGINAL COMPLAINT BY CANADA RECOURSE TO ARBITRATION BY THE EUROPEAN COMMUNITIES UNDER ARTICLE 22.6 OF THE DSU DECISION BY THE ARBITRATORS
Document: UNDER ARTICLE 22.6 OF THE DSU DECISION BY THE ARBITRATORS The Decision of the Arbitrators on European Co mmunities - Measures Concerning Meat and Meat Products (Hormones) - Recourse to arbitration by the European Communities under Article 22.6 of the DSU - is being circulated to all Members, pursuant to  the DSU.  The report is being circulated as an unrestricted document from 12 July 1999 pursuant to the Procedures for the Circulation and Derestriction of WTO Documents (WT/L/160/Rev.1).
Date: 12 July 1999
Document codes: WT/DS48/ARB
Complainant: Canada
Respondent: EU
Third parties: Australia, New Zealand, Norway, U.S.
Dispute stage: Mutually Agreed Solution
Agreements cited: Art. 4  AgricultureArt. 2, 3, 5  Sanitary and Phytosanitary Measures (SPS)Art. 2  Technical Barriers to Trade (TBT)Art. III, XI  GATT 1994Art. 5  Technical Barriers to Trade (TBT)

EUROPEAN COMMUNITIES – MEASURES CONCERNING MEAT AND
MEAT PRODUCTS (HORMONES)
ORIGINAL COMPLAINT BY CANADA
RECOURSE TO ARBITRATION BY THE EUROPEAN COMMUNITIES
UNDER ARTICLE 22.6 OF THE DSU
DECISION BY THE ARBITRATORS
The Decision of the Arbitrators on European Co mmunities - Measures Concerning Meat and Meat
Products (Hormones) - Recourse to arbitration by the European Communities under Article 22.6 of the
DSU - is being circulated to all Members, pursuant to the DSU. The report is being circulated as an
unrestricted document from 12 July 1999 pursuant to the Procedures for the Circulation and
Derestriction of WTO Documents (WT/L/160/Rev.1).

I. INTRODUCTION
1. On 20 May 1999, Canada, pursuant to Article 22.2 of the DSU, requested the Dispute
Settlement Body ("DSB") to authorize the suspension of the application to the European Communities
("EC") and its member States of tariff concession s covering trade in an amount of CDN$ 75 million
per year. 1 In a letter dated 2 June 1999, the EC objected to the level of suspension proposed by
Canada and requested that the matter be referred to arbitration. In its submissions, the EC quantified
the level of trade impairment caused by the hormone ban on Canadian bovine meat and meat products
at a maximum of CDN$ 3,537,769. The EC also asked that the arbitrators request Canada to submit a
list with proposed suspension of concessions equivalent to the level of nullification or impairment,
once this level had been determined by the arbitrators.
2. At its meeting of 3 June 1999, the DSB - referring to both the Canadian and the EC request -
noted that, pursuant to Article 22.6 of the DSU, the matter shall be referred to arbitration. Article 22.6
provides as follows:
"When the situation described in paragraph 2 occurs [if the Member concerned fails to
bring the measure found to be inconsistent with a covered agreement into compliance
therewith or otherwise comply with the recommendations and rulings within the
reasonable period of time determined pursuant to paragraph 3 of Article 21], the DSB,
upon request, shall grant authorization to suspend concessions or other obligations
within 30 days of the expiry of the reasonable period of time unless the DSB decides by
consensus to reject the request. However, if the Member concerned objects to the level
of suspension proposed … the matter shall be referred to arbitration . Such arbitration
shall be carried out by the original panel, if members are available, or by an arbitrator
appointed by the Director-General and shall be completed within 60 days after the date
of expiry of the reasonable period of time. Concessions or other obligations shall not
be suspended during the course of the arbitration".
2
The arbitration was carried out by the original panel (hereafter referred to as "the arbitrators"),
namely:
Chairman: Mr. Thomas Cottier
Members: Mr. Peter Palecka
Mr. Jun Yokota
3. The jurisdiction of the arbitrators and the effect of this arbitration report is set out in
Article 22.7 of the DSU:
"The arbitrator acting pursuant to paragraph 6 shall not examine the nature of the
concessions or other obligations to be suspended but shall determine whether the level
of such suspension is equivalent to the level of nullification or impairment … The
parties shall accept the arbitrator's decision as final and the parties concerned shall not
seek a second arbitration. The DSB shall be informed promptly of the decision of the
arbitrator and shall upon request, grant authorization to suspend concessions or other
obligations where the request is consistent with the decision of the arbitrator, unless
the DSB decides by consensus to reject the request".3
The substantive provision at issue here is contained in Article 22.4 of the DSU:

1 WT/DS48/17.
2 Footnote omitted and emphasis added.
3 Ibid.

"The level of the suspension of concessions or other obligations authorized by the
DSB shall be equivalent to the level of the nullification or impairment".
4. In this case, the arbitrators are called upon to "determine whether the level of … suspension
[of tariff concessions, as proposed by Canada] is equivalent to the level of nullification or
impairment"4 caused to Canada by the EC ban on imports of hormone treated beef and beef products.
5. The organisational meeting at which time-table and working procedures were adopted, was
held on 4 June. On 7 June we received a paper from Canada explaining the methodology it applied in
calculating the proposed level of suspension. First written submissions were received from both
parties on 11 June. Rebuttals were filed on 18 June. A meeting with the parties was held on 22 June.
On 25 June we received answers to a list of questions we had submitted to the parties.
6. The main arguments of the parties are summarized below when examining each of the claims
before us.
II. PRELIMINARY ISSUES
A. THIRD-PARTY RIGHTS
7. Following a request by the United States ("US") for third-party rights and after careful
consideration of the parties' arguments made at the organisational meeting of 4 June 1999 and in their
written submissions, the arbitrators ruled as follows:
The US and Canada are allowed to attend both arbitration hearings, to make a
statement at the end of each hearing and to receive a copy of the written submissions
made in both proceedings.
The above ruling was made on the following grounds.
• DSU provisions on panel proceedings, referred to by analogy in the arbitrators'
working procedures, give the arbitrators discretion to decide on procedural
matters not regulated in the DSU (Article 12.1 of the DSU) in accordance with
due process.5 The DSU does not address the issue of third-party participation in
Article 22 arbitration proceedings.
• US and Canadian rights may be affected in both arbitration proceedings:
First, the estimates for high quality beef ("HQB") exports, foregone because of
the hormone ban, are to be based on a tariff quota that allegedly needs to be
shared between Canada and the US. A determination in one proceeding may
thus be decisive for the determination in the other.

4 Article 22.7 of the DSU, emphasis added.
5 In this respect see footnote 138 in the Appellate Body Report on EC – Measures Concerning Meat
and Meat Products (Hormones) , adopted on 13 February 1998, WT/DS26/15, WT/DS48/13: "[T]he DSU, and
in particular its Appendix 3, leave panels a margin of discretion to deal, always in accordance with due process,
with specific situations that may arise in a particular case and that are not explicitly regulated. Within this context,
an appellant requesting the Appellate Body to reverse a panel's ruling on matters of procedure must demonstrate
the prejudice generated by such legal ruling".

Second, several methodologies are proposed to calculate lost export
opportunities. Given the fact that the product scope (HQB and edible bovine
offal ("EBO")) and relevant trade barriers (hormone ban and HQB tariff quota)
are the same in both proceedings, both arbitration panels (composed of the same
three individuals) may consider it necessary to adopt the same or very similar
methodologies. This is all the more necessary because the arbitrators are called
upon to arrive at a specific determination on the amount of nullification and
impairment caused by the ban.
6 They are therefore not limited, as in most panel
proceedings, to ruling only on the consistency of the amounts proposed by the
US and Canada with DSU provisions. Due process thus requires that all three
parties receive the opportunity to comment on the methodologies proposed by
each of the parties.
• In contrast, the EC has not shown how third-party participation would prejudice
its rights. No specific arguments were made demonstrating that third party
participation would substantially impair the EC's interests or due process rights.
B.
BURDEN OF PROOF AND THE ROLE OF ARBITRATORS UNDER ARTICLE 22 OF THE DSU
8. Both parties made extensive submissions on the question of who bears the burden of proof in
Article 22 arbitration procedures. Each party submitted that the burden of proof rests on the other
party.
9. WTO Members, as sovereign entities, can be presumed to act in conformity with their WTO
obligations. A party claiming that a Member has acted inconsistently with WTO rules bears the
burden of proving that inconsistency. The act at issue here is the Canadian proposal to suspend
concessions. The WTO rule in question is Article 22.4 prescribing that the level of suspension be
equivalent to the level of nullification and impairment. The EC challenges the conformity of the
Canadian proposal with the said WTO rule. It is thus for the EC to prove that the Canadian proposal
is inconsistent with Article 22.4. Following well-established WTO jurisprudence, this means that it is
for the EC to submit arguments and evidence sufficient to establish a prima facie case or presumption
that the level of suspension proposed by Canada is not equivalent to the level of nullification and
impairment caused by the EC hormone ban. Once the EC has done so, however, it is for the Canada
to submit arguments and evidence sufficient to rebut that presumption. Should all arguments and
evidence remain in equipoise, the EC, as the party bearing the original burden of proof, would lose.
10. The same rules apply where the existence of a specific fact is alleged; in this case, for
example, where a party relies on a decrease of beef consumption in the EC or the use of edible bovine
offal as pet food. It is for the party alleging the fact to prove its existence.
11. The duty that rests on all parties to produce evidence and to collaborate in presenting
evidence to the arbitrators – an issue to be distinguished from the question of who bears the burden of
proof -- is crucial in Article 22 arbitration proceedings. The EC is required to submit evidence
showing that the proposal is not equivalent. However, at the same time and as soon as it can, Canada
is required to come forward with evidence explaining how it arrived at its proposal and showing why
its proposal is equivalent to the trade impairment it has suffered. Some of the evidence - such as data
on trade with third countries, export capabilities and affected exporters - may, indeed, be in the sole
possession of Canada, being the party that suffered the trade impairment. This explains why we
requested Canada to submit a so-called methodology paper.
7

6 See paragraph 12.
7 See paragraph 5.

12. There is, however, a difference between our task here and the task given to a panel. In the
event we decide that the Canadian proposal is not WTO consistent (i.e. the suggested amount is too
high), we should not end our examination the way panels do, namely by requesting the DSB to
recommend that the measure be brought into conf ormity with WTO obligations. Following the
approach of the arbitrators in the Bananas case – where the proposed amount of US$ 520 million was
reduced to US$ 191.4 million -- we would be called upon to go further. In pursuit of the basic DSU
objectives of prompt and positive settlement of disputes
8, we would have to estimate the level of
suspension we consider to be equivalent to the impairment suffered. 9 This is the essential task and
responsibility conferred on the arbitrators in order to settle the dispute. In our view, such approach is
implicitly called for in Article 22.7:
"The parties shall accept the arbitrator's decision as final and the parties concerned
shall not seek a second arbitration. The DSB shall be informed promptly of the
decision of the arbitrator and shall upon request, grant authorization to suspend
concessions or other obligations where the request is consistent with the decision of
the arbitrator, unless the DSB decides by consensus to reject the request".
C.
PRODUCT COVERAGE OF THE CANADIAN PROPOSAL TO SUSPEND CONCESSIONS
13. The Canadian proposal to suspend tariff concessions vis-à-vis the EC and its member States
includes a list of products that covers trade in an amount significantly higher than the proposed
CDN$ 75 million.10 As stated in the request itself, the list of products attached to the request
"is a proposed list of products on which concessions could be withdrawn, and on
which public comment is now being received. This list is attached for ease of
reference. The trade value of the final list of products subject to increased tariffs
will be equivalent, on an annual basis, to Can$ 75 million".
Canada has not yet determined the final list of EC products that will be subject to the suspension of
tariff concessions. Canada did determine the degree of the suspension (i.e. the level of the tariff to be
imposed), namely a 100 per cent tariff on each of the selected products.
14. In its objection to the Canadian proposal for suspension, as well as at the DSB meeting
during which this case was referred to arbitration, the EC complained about the above outlined
approach taken by Canada. The EC asks us "to request Canada to submit a list with proposed
suspension of concessions equivalent to the level of nullification or impairment, once this level has
been determined by the arbitrator".
11 In other words, the EC requests the arbitrators to first decide on
the amount of trade impairment, to then request a specific product list from Canada and to finally
determine whether both are "equivalent". Canada objects to this EC request.12

8 See Articles 3.3 and 3.7.
9 If this were not done, the Member requesting suspension would need to make new estimates and
arguably submit a new proposal. This proposal could again meet objections and might be referred back to
arbitration. To avoid this potentially endless loop, the arbitrators -- in the event they find that the proposal is not
equivalent to the trade impairment -- have to come up with their own estimate, i.e. their own figure.
10 According to Canada's answers to the arbitrators questions, the proposed list of products covers trade
in an amount of CDN$ 316,412,782.
11 WT/DS48/17.
12 In contrast to this case, in the Bananas dispute the list of products attached to the US request for
suspension corresponded, at least according to US calcu lations, to the US estimate of trade impairment of
US$ 520 million. Once the arbitrators had lowered the le vel of trade impairment to US$ 191.4 million, the US
submitted a new request to the DSB meeting. At that meeting the US received authorization to suspend
concessions equivalent to an amount of US$ 191.4 million. Subsequently, the US selected a number of products
from the original list that, according to US calculati ons, were equivalent in value to the authorized

15. The arbitrators are unable to follow the EC request. No support for this request can be found
in the DSU.
16. The authorization given by the DSB under Article 22.6 of the DSU is an authorization "to
suspend [the application to the Member concerned of] concessions or other obligations [under the
covered agreements]".
13 In our view, the limitations linked to this DSB authorization are those set out
in the proposal made by the requesting Member on the basis of which the authorization is granted. In
the event tariff concessions are to be suspended, only products that appear on the product list attached
to the request for suspension can be subject to suspension. This follows from the minimum
requirements attached to a request to suspend concessions or other obligations. They are, in our view:
(1) the request must set out a specific level of su spension, i.e. a level equivalent to the nullification
and impairment caused by the WTO inconsistent measure, pursuant to Article 22.4 14; and (2) the
request must specify the agreement and sector(s) under which concessions or other obligations would
be suspended, pursuant to Article 22.3.15
17. Neither can support for the EC request be found in other provisions of Article 22. Instead,
they prescribe the following: (1) the "DSB shall not authorize suspension of concessions or other
obligations if a covered agreement prohibits such suspension" (Article 22.5); (2) "[c]oncessions or other
obligations shall not be suspended during the course of the arbitration" (Article 22.6 in fine); and (3) the
suspension "shall only be applied until such time as the measure found to be inconsistent with a covered
agreement has been removed, or the Member that must implement recommendations or rulings provides
a solution to the nullification or impairment of benefits, or a mutually satisfactory solution is reached"
(Article 22.8).
18. In our view, the determination of other aspects related to the suspension remain the
prerogative of the Member requesting the suspension. We note, in particular, that the Member in
respect of whom concessions or other obligations would be suspended, can object to " the level of
suspension proposed"16 and that an arbitrator has to "determine whether the level of such suspension is
equivalent to the level of nullification or impairment". 17 Arbitrators are explicitly prohibited from
"examin[ing] the nature of the concessions or other obligations to be suspended" 18 (other than under
Articles 22.3 and 22.5).
19. On these grounds, we cannot require that Canada further specify the nature of the proposed
suspension. As agreed by all parties involved in this dispute19, in case a proposal for suspension were to
target, for example, only biscuits with a 100 per cent tariff ad valorem, it would not be for the arbitrators
to decide that, for example, cheese and not biscuits should be targeted; that a 150 per cent tariff should
be imposed instead of a 100 per cent tariff; or that tariff increases should be levied on a product

US$ 191.4 million. The EC objected to the US approach of not providing a definite product list at the DSB
meeting during which authorization was granted. The US stated that there was nothing in the DSU to the effect
that such a list should be attached to a request for au thorization to suspend concessions (Minutes of the DSB
meeting of 19 April 1999, WT/DSB/M/59).
13 Article 22.6 of the DSU. Bracketed text added is from Article 22.2 of the DSU.
14 In respect of the first requirement see further paragraph 21.
15 The more precise a request for suspension is in terms of product coverage, type and degree of
suspension, etc…, the better. Such precision can only be encouraged in pursuit of the DSU objectives of
"providing security and predictability to the multilateral trading system" (Article 3.2) and seeking prompt and
positive solutions to disputes (Articles 3.3 and 3.7). It would also be welcome in light of the statement in
Article 3.10 that "all Members will engage in [DSU] procedures in good faith in an effort to resolve the dispute".
16 Article 22.6, emphasis added.
17 Article 22.7, emphasis added.
18 Ibid.
19 Answers to arbitrators' Question 1.

weight basis, not ad valorem . All of these are qualitative aspects of the proposed suspension
touching upon the "nature" of concessions to be withdrawn. They fall outside the arbitrators'
jurisdiction.
20. What we do have to determine, however, is whether the overall proposed level of suspension is
equivalent to the level of nullification and impairment. This involves a quantitative -- not a qualitative
-- assessment of the proposed suspension. As noted by the arbitrators in the Bananas case, "[i]t is
impossible to ensure correspondence or identity betw een two levels if one of the two is not clearly
defined".20 Therefore, as a prerequisite for ensuring equivalence between the two levels, we have to be
able to determine, not only the "level of the nullifi cation and impairment", but also the "level of the
suspension of concessions or other obligations". To give effect to the obligation of equivalence in
Article 22.4, the Member requesting suspension thus has to identify the level of suspension of
concessions it proposes in a way that allows us to determine equivalence.
21. In this case Canada has to – and did -- identify the products that may be subject to suspension
in a way that allowed us to attribute an annual trade value to each of these products when subject to
the additional tariff proposed, namely a 100 per cent tariff (assuming this tariff is prohibitive). We
have carried out that task in Section IV below. Once this is done, however, Canada is free to pick
products from that list – not outside the list - equalling a total trade value that does not exceed the
amount of trade impairment we find. In our view, this obligation to sufficiently specify the level of
suspension flows directly from the requirement of ensuring equivalence in Article 22.4, the
substantive provision we have to enforce here. It is part of the first element under the minimum
requirements we outlined above, namely to set out a specific level of suspension, i.e. a level
equivalent to the nullification and impairment caused by the WTO inconsistent measure.
III. CALCULATION OF THE LEVEL OF NULLIFICATION AND IMPAIRMENT
CAUSED BY THE EC HORMONE BAN
A.
SUMMARY OF THE PARTIES' BASIC METHODOLOGIES
1. Canada
22. Canada submits that the EC hormone ban impairs Canadian exports in two respects. First,
because of the ban Canadian high quality beef ("HQB") that has been treated with hormones, cannot
be imported into the EC market. More particularly, Canadian hormone-treated HQB does not qualify
for importation under the 11,500 tonnes tariff quota for HQB granted by the EC.
23. Second, because of the ban Canadian edible beef offal ("EBO") for human consumption that
has been treated with hormones is not allowed for importation into the EC.
21 For such imports the EC
does not apply a tariff quota.
24. In respect of HQB, Canada submits that EC regulations do not make a distinction between
Canadian and US beef for purposes of administering the 11,500 tonnes tariff quota. Canada argues
that for purposes of estimating trade impairment, both Canada and the US should be allocated 50 per
cent of the undivided joint interest in the tariff quota, i.e. 5,750 tonnes each. In support of this,
Canada refers to its considerable export capacity for meat of bovine animals. It further argues that
since the pre-ban period (1981-88) the Canadian cattle and beef industry have undergone considerable

20 WT/DS/ARB, para. 4.2.
21 EBO treated with hormones is considered by the EC as unsuitable for human consumption. It cannot
enter the EC market under the tariff headings summed up in footnote 32. However, such beef offal – treated
with hormones – still enters the EC for use in pet food under other tariff headings, not subject to the ban.

transformation, illustrated by a substantial expansion of production and, in particular, by a dramatic
export growth in recent years.
25. In calculating the value of its potential exports under the tariff quota, Canada used the average
North American price in 1998 for choice ribeye roll and choice beef loin cuts of bovine animals,
namely CDN$ 10,805 per tonne. To arrive at the nullification and impairment caused by the hormone
ban, Canada deducted the trade value of its 1998 exports of HQB. On this basis, Canada estimates the
value of its expected trade of HQB to be CDN$ 62.1 million.
26. In order to calculate the trade impairment in respect of EBO, Canada's starting-point is to
estimate trade flows of EBO between North America (i.e. Canada and the US), the EC and the rest of
the world, in the absence of the ban. To do this, Canada utilises the Armington Framework Market
Share Model.
22 Canada submits that the basic assumption of the Armington Framework is that similar
products are imperfect substitutes given that they can be differentiated by origin of production.
According to Canada, trade models that make this assumption usually employ a two-step process to
estimate the demand for the product examined. In a first step, the demand/expenditure of a group is
determined irrespective of the source of origin. In a second step, this demand/expenditure is allocated
among the identified suppliers based on the place of origin and/or the form of the product. The
Armington model assumes that the allocation of demand/expenditure of one group is not dependent
on any other group’s demand/expenditure. Therefore, one of the major assumptions of the Armington
model is that the marginal rate of substitution between any two products of the same kind is
independent of the consumption of other kinds of products. Thus, according to Canada, the two key
features of this framework are that it allows fo r two-way trade between groups and it differentiates
products based on source of production.
27. In order to calculate the potential export value Canada (1) uses 1988 data for the
determination of the pre-ban situation regarding trade flows, market shares and prices; (2) uses 1997
as the most recent year because it is the last year for which a complete data set was available;
(3) defines the EC, North America (i.e. Canada and the US) and the rest of the world as the three
regions used in the analysis; and (4) assumes that edible bovine offal production is a function of the
price of beef rather than the price of edible beef offal, as the latter was a by-product of beef
production.
28. According to Canada's calculations, in the absence of the ban North American EBO exports to
the EC would have been approximately 71,205 tonnes . Based on Canada's share in North America’s
total EBO exports (including US-Canada trade) between 1996 and 1998, Canada estimates its share to
be 10.8 per cent or 7,690 tonnes. This volume, multiplied by the EBO price derived from the
Armington model, gives the value of potential Canadian EBO exports to the EC. To arrive at the
nullification and impairment caused by the hormone ban, Canada deducted from the potential exports
the value of its 1998 exports of EBO to the EC. As a result, Canada estimates the level of
nullification and impairment to be CDN $ 17.1 million.
2. European Communities
29. In respect of HQB, the EC submits that Canada, together with the US, can export HQB to the
EC market as long as it complies with the condit ions linked to the tariff quota. The approach
followed by the EC is to compare the situation that existed before the introduction of the import ban
with the current situation. The EC submits that poss ible short-term effects were eliminated by taking
the average figures and data of the period 1986 to 1988 and 1996 to 1998. The value of Canadian
exports to the EC was obtained by converting EC U into CDN$ by applying the conversion rates as

22 Paul S. Armington, A Theory of Demand for Products Distinguished by Place of Production (IMF
Staff Papers, Volume XVI, No. 1, March 1969), pp. 159-178, Annex B to Canada's first submission.

they were recorded during the years concerned. The level of nullification and impairment identified
by the EC in respect of HQB using this approach is zero given that the value of current Canadian
exports of HQB to the EC is higher than that prior to the ban.
30. The EC further submits that in the period prior to the ban, Canada's share of the tariff quota
never amounted to more than 3 per cent of the tota l in-quota quantity. The EC argues that Canadian
export prices of HQB are significantly higher than US prices, rendering the Canadian product entirely
non-competitive when compared to US beef. In addition, the EC submits that in the period from 1988
to 1998, Canadian beef producer prices increa sed, whereas EC beef producer prices dropped
substantially, in particular following the reform of the common agricultural policy of the EC (as from
1992).
31. In respect of EBO, the EC notes that edible offal is a by-product of meat production. It
submits that consumer behavior in respect of offal follows the same pattern as that observed for meat.
If consumption of meat declines, for example, because of a negative perception of the meat produced,
a similar decline will take place in the consumption of offal. The EC refers to the constant drop in
beef consumption within the EC in recent years, as well as to the BSE crisis, and argues that this
decline is also reflected in a drop of consumption of bovine offal. The EC submits that only offal for
human consumption is affected by the import ban. It adds that overall production of offal in the EC
over the last 12 years increased significantly, while the consumption of offal decreased. As a result,
the EC, originally a net importer of offal, became into a net exporter.
32. The EC estimates Canadian exports of EBO but for the ban, using the 1986-1988 average
value as a base from which to deduct "current exports", defined as the 1996-98 average value of
Canadian exports of EBO to the EC. The EC furthe r notes that EC imports of EBO were subject to a
general downward trend irrespective of the origin of the products, warranting a downward adjustment
in value of 25.47 per cent. It also submits that the prohibition of growth hormones only concerns the
quantities of EBO actually used for human consumption, not those used for pet food. For these
reasons, the EC makes an additional downward adju stment in quantities of 31.7 per cent. The EC
accordingly estimates the level of nullification and impairment with regard to EBO for human
consumption to be CDN$ 3,537,769.
B. G
ENERAL APPROACH OF THE ARBITRATORS
33. We carefully examined the claims, arguments and evidence submitted by the parties in light
of the rules on burden of proof and the role of arbitrators under Article 22 of the DSU outlined
above.23
34. Based upon the record before us, in particular evidence submitted by the EC demonstrating
that the Canadian assessments were not always appropriate, we consider that the EC established a
prima facie case that the level of suspension proposed by Canada is not equivalent to the level of
nullification and impairment caused by the ban. In our view, Canada failed to rebut this presumption.
We were, therefore, not able to accept in full the estimates proposed by Canada. We were not
convinced either by all of the EC alternatives. We could, however, accept certain elements of both
the Canadian and the EC methodologies. As explained earlier 24, in such circumstances, the essential
task and responsibility of the arbitrators is to make their own estimate, on the basis of all arguments
and evidence submitted by the parties. In doing so, we follow the rules on burden of proof set out in
paragraphs 9-11.

23 See Section II.B.
24 See paragraph 12.

C. GUIDELINES FOR THE CALCULATION OF NULLIFICATION AND IMPAIRMENT
35. To determine whether the proposed level of suspension (CDN$ 75 million) is "equivalent" to
the level of nullification and impairment caused by the hormone ban, we have, of course, to determine
what this level of nullification and impairment is.
36. Canada states that it is expected to estimate the amount of trade that would be occurring in the
absence of the EC ban. The EC submits that the calculation of nullification and impairment can only
be based on the situation in which Canada would have found itself if the EC had withdrawn, or
otherwise had brought into conformity, the inconsistent trade measure.
37. Upon careful consideration of the claims and arguments set forth by the parties, we consider
that our starting-point is as follows: what would annual prospective Canadian exports of hormone-
treated beef and beef products to the EC be if the EC had withdrawn the ban on 13 May 1999 ?
13 May 1999 is the date of expiration of the reasonable period of time granted to the EC to implement
the panel and Appellate Body reports. In accordance with DSU provisions, it was by 13 May 1999
that the EC had to bring its beef import regime into conformity with the SPS Agreement. We cannot
assume that the EC from 1989 onwards, i.e. fro m the time it imposed the ban, was under a legal
obligation to withdraw the ban. We note, in this respect, that the violations found were violations of
the SPS Agreement, an agreement only in existence from 1 January 1995 onwards.
25 The EC does not
contest that it has not brought the measure into conformity with its WTO obligations. Nor does it
contest that the "counterfactual" we need to look at in these proceedings is a situation without the ban.
The EC did not propose that we examine any other alternative that would meet its obligations under
the SPS Agreement.
38. We are, furthermore, of the view that the effect of suspending concessions should not exceed
that of the EC bringing the measure into conf ormity with WTO rules on 13 May 1999. This stems
directly from the DSU itself. The DSU characterizes full and prompt implementation of DSB
recommendations as the first objective and preferred solution. The suspension of concessions, in
contrast, is only a temporary measure of last resort to be applied only until such time as full
implementation or a mutually agreed solution is obtained. 26 To allow the effect of suspension of
concessions to exceed that of bringing the measure into conformity with WTO rules would not be
justifiable in view of DSU objectives.
39. We note further that we agree with the arbitrators in the Bananas case that
"the authorization to suspend concessions or other obligations is a temporary measure
pending full implementation by the Member concerned. … this temporary nature
indicates that it is the purpose of countermeasures to induce compliance. But this
purpose does not mean that the DSB should grant authorization to suspend
concessions beyond what is equivalent to the level of nullification or impairment. In
our view, there is nothing in Article 22.1 of the DSU, let alone in paragraphs 4 and 7
of Article 22, that could be read as a justification for counter-measures of a punitive
nature".27
40. The question we thus have to answer here is: what would annual prospective Canadian
exports of hormone-treated beef and beef products to the EC be if the EC had withdrawn the ban on

25 It might be argued that the ban also violated GATT 1947. However, no legal findings on this were
ever made.
26 See Articles 3.7, 21.1, 22.1 and 22.8 of the DSU.
27 Op. cit., para. 6.3.

13 May 1999? An answer to this question, like any question about future events, can only be a
reasoned estimate. It is necessarily based on certain assumptions. In making those estimates and
assumptions, we need to guard against claims of lost opportunities where the causal link with the
inconsistent hormone ban is less than apparent, i.e. where exports are allegedly foregone not because
of the ban but due to other circumstances.28
41. In this sense, our task of estimating nullification and impairment is very different from that of
a panel examining the WTO conformity of certain measures. Once a panel has found a WTO
inconsistency, it can presume – pursuant to Article 3.8 of the DSU – that the inconsistency has caused
nullification and impairment. On that ground the panel can give redress to the winning party under
Article XXIII of GATT 1994 or corresponding provisions in other WTO agreements. What normally
counts for a panel is competitive opportunities and breaches of WTO rules 29, not actual trade flows.
A panel does not normally need to further assess the nullification and impairment caused; it can
presume its existence. We, in contrast, have to go one step further. We can take it for granted here
that the hormone ban is WTO inconsistent. What we have to do is to estimate the nullification and
impairment caused by it (and presumed to exist pursuant to Article 3.8 of the DSU). To do so in the
present case, we have to focus on trade flows. We must estimate trade foregone due to the ban's
continuing existence beyond 13 May 1999.
42. Both products referred to by Canada – high quality beef and edible beef offal – once certified
as not having been treated with hormones, do currently enter the EC market, with the ban in place. To
assess the trade impairment caused by the hormone ban, we first estimate, for each product category,
the total value of Canadian beef or beef products – hormone treated or not -- that would enter the EC
annually if the ban would have been withdrawn on 13 May 1999. To estimate the nullification and
impairment caused by the hormone ban we then deduct from that total value the current value of
Canadian exports of HQB and EBO, i.e. those that have not been treated with hormones. We assume
that these "current exports", adjusted for other factors as explained below, are representative of the
exports that will occur in the future with the ban in place. The end result provides us the estimated
value of hormone treated HQB and EBO exports that would enter the EC but for the ban's continuing
existence beyond 13 May 1999.
43. Our calculations are based on exports at the f.o.b. stage -- excluding insurance and freight --
an approach which all parties have used in their calculations. We use f.o.b. prices to ensure
comparability with the customs valuation method of suspension of concessions proposed by Canada.
D.
NULLIFICATION AND IMPAIRMENT IN RESPECT OF HIGH QUALITY BEEF
1. Volume of the tariff quota
44. All parties, including the US as a third party, agree that the EC market for HQB exports from
the US and Canada – with or without the ban -- is limited by a tariff quota of 11,500 tonnes at an in-

28 In this respect, see the Decision by the Arbitrators in EC – Regime for the Importation, Sale and
Distribution of Bananas , Recourse to Arbitration by the EC under Article 22.6 of the DSU (hereafter "the
Bananas case"): "We are of the view that the benchmark for the calculation of nullification or impairment of
US trade flows should be losses in US exports of goods to the European Communities and losses by US service
suppliers in services supply in or to the European Communities . However, we are of the opinion that losses of
US exports in goods or services between the US and third countries do not constitute nullification or impairment
of even indirect benefits accruing to the US under the GATT or the GATS for which the European Communities
could face suspension of concessions" (circulated on 6 April 1999, WT/DS/ARB, para. 6.12, italics in original).
29 This includes so-called "non-violation nullification and impairment" claims under Article XXIII:1(b)
of GATT 1994.

quota tariff rate of 20 per cent ad valorem.30 This quota is to be shared between the US and Canada.
The out-of-quota rate is considered by all parties to be prohibitive.
2. Estimated utilisation of the 11,500 tonnes tariff quota
45. Canada submits that the entire tariff quota would be filled but for the ban. The EC, referring
to the fact that the tariff quota has never been filled in the past -- not even before the ban -- argues that
the tariff quota would only be filled to the same extent as before the ban (1986-1988 average).
46. In this respect, we considered, in particular, the following elements: (1) the fact that the tariff
quota represents only a negligible portion of tota l EC beef consumption; (2) the fact that all HQB
tariff quotas allocated by the EC to other countries such as Argentina, Australia, Brazil, New Zealand
and Uruguay have over the years been fully or almost fully utilised; and (3) the high production and
export capacities of the Canadian beef industry. On these grounds, we can reasonably expect that
under the "counterfactual" the tariff quota would be 100 per cent filled.
3. Estimated tariff quota share of Canada
47. Given our conclusions above, we next have to estimate the Canadian share in the
11,500 tonnes tariff quota.
48. Our approach here is based on Canada's and the US' past performance with respect to HQB
exports as well as beef exports in general. We considered, in particular, the following elements.
Firstly, the proportions of Canadian and US HQB exports in third country export markets, such as
Japan, Korea, Switzerland and Taiwan. The Cana dian share of HQB exports has been below 6 per
cent in these markets in the 1996-98 period, except in Taiwan where Canadian exports averaged 10
per cent over the last three years. Secondly, the general proportions of Canadian and US beef
exports. Canada's share of North American beef exports to the rest of the world was 4per cent on
average in 1996-98, although Canada's share, incl uding Canada-US trade, was approximately 30 per
cent. Thirdly, the proportions of Canadian and US beef exports to the EC (a 6 per cent share for
Canada in 1998). Fourthly, changes in the relative proportions of Canadian and US exports. The
general tendency in both the EC and third country markets in recent years has been an increase of
Canada's share at the expense of the US.
49. Taking these elements into account, we consider a Canadian share of 8 per cent a reasonable
estimate.
4. Estimated prices under the counterfactual
50. Canada suggests a price of CDN$ 10,805 per tonne which corresponds, according to Canada,
to the 1998 average price for North American choice ribeye roll and choice beef loin cuts, both top
quality beef cuts. Considering evidence submitted by the EC on current average prices obtained for
Canadian beef and relevant price ratios before the ban, we are of the view that the suggested price is
too high.
51. In this respect, we refer to the price suggest ed by the US, a third party in this dispute
(US$ 5,342 per tonne). In response to questions from the arbitrators, Canada submits that in the
absence of the ban one can expect that Canadian and US prices for HQB would be very similar as

30 The tariff classification for this category in respect of which Canada alleges trade impairment is: HS
0201 (Meat of Bovine Animals, Fresh or Chilled), HS 0202 (Meat of Bovine Animals, Frozen), HS 0206 1095
(Edible Offal of Bovine Animals, Fresh or Chilled, Thick Skirt and Thin Skirt) and HS 0206 2991 (Edible Offal
of Bovine Animals, Frozen, Thick Skirt and Thin Skirt).

similar cuts would be shipped. We agree with Canada that it is reasonable to expect that without the
hormone ban a considerable share of the tariff quota would be filled with high quality hormone-
treated cuts fetching higher prices than current Canadian exports that include all types of cuts, of both
high and low value. This would occur in order to maximize the value of exports entering the EC
market under the tariff quota. We note, however, that average Canadian beef export prices in trade
with the EC have been consistently higher than corresponding US prices. We thus use a higher price
in our estimate than the price suggested by the US but lower than the price suggested by Canada.
52. On that basis, we consider a price of CDN$ 8,594 per tonne (f.o.b.) to be reasonable.
Consequently, we calculate the total value of Canadian HQB exports to the EC under the
counterfactual to be CDN$ 7,906,480.
5. Estimated value of "current exports" to be deducted
53. As noted earlier31, to estimate the nullification and impairment caused by the hormone ban we
have to deduct from the total value of Canadian exports under the counterfactual, the current value of
Canadian exports of non-hormone treated HQB.
54. The EC suggests that Canadian exports in the 1996-1998 period are representative for exports
that would occur in the future with the ban in place. Canada suggests deducting the 1998 value of its
beef exports to the EC. We consider it more appropriate to deduct the 1996-1998 average actual
Canadian exports to the EC, in light of the point ma de by the EC that short-term effects need to be
eliminated.
55. On this basis we calculate the value of current exports to be deducted from the estimated
exports under the counterfactual to be CDN$ 2,265,843.
6. Estimate of nullification and impairment in respect of HQB
56. Following our estimates developed above, we calculate the total amount of nullification and
impairment caused by the hormone ban on Canadian exports of HQB to be CDN$ 5,640,637.
E. NULLIFICATION AND IMPAIRMENT IN RESPECT OF EDIBLE BEEF OFFAL
1. Estimated volume of Canadian EBO exports under the "counterfactual"
57. Unlike the EC import market for HQB, Canadian exports of EBO to the EC are subject to
tariffs only, not to a tariff quota. 32 The tariff levied on imports of EBO – according to Canada,
ranging from 2.3 per cent ad valorem to free -- is also much lower than the in-quota tariff for HQB
(20 per cent ad valorem). Therefore, a different methodology to calculate trade impairment in respect
of EBO is warranted. In respect of HQB, we co uld assume that imports but for the ban would be
subject to a ceiling of 11,500 tonnes. In respect of EBO, one of the major tasks is to estimate
potential exports of Canadian EBO in the absence of the ban. Canada's and the EC arguments in this
respect were summarized above.33

31 See paragraph 42.
32 The tariff classification for this category in respect of which Canada alleges trade impairment is: HS
020610 (Offal of Bovine Animals, Edible, Fresh or Chilled), HS 020621 (To ngue of Bovine Animals, Edible,
Frozen), HS 020622 (Livers of Bovine Animals, Edible, Frozen), HS 020629 (Offal of Bovine Animals, Not
Elsewhere Specified, Edible, Frozen, e.g., Hearts, Kidneys, Sweetbreads), but excluding HS 0206 1095 and
0206 2991, tariff items that are covered by the HQB tariff quota (see footnote 30 above).
33 See Section III.A of this report.

58. We consider average Canadian exports of EBO in 1986-1988 to be a representative starting-
point for our calculations of total exports under the counterfactual, i.e. assuming the ban would have
been lifted on 13 May 1999. However, it is clear to us that these pre-ban figures reflect a market
situation that is quite different from the current market situation for EBO in the EC. We must
therefore make certain adjustments.
59. We consider it reasonable to make a downward adjustment to the pre-ban exports to take
account of the demonstrated decline in "apparent consumption" of EBO in the EC market since the
imposition of the ban. 34 At the same time, we note that part of this decline in apparent consumption
was caused by the hormone ban itself. Data for 1988 compared to 1989 -- when the ban was first
imposed -- show a sharp drop in EBO imports. In order to take account of this decline related to the
ban, we calculated the absolute difference between (i) the trend import volumes for the years 1989-91
(estimated by way of an extrapolation of the actual import volumes for the period 1981-88) and
(ii) the actual import volumes for the years 1989-91. The annual average of this difference was then
added to actual imports in each of the years 1995-97. The apparent consumption of edible beef offal
for 1995-97 was calculated on the basis of these adjusted import figures. As a result of this approach,
we estimate the downward adjustment factor for apparent consumption to be 18.4 per cent. We
assume that the volume of Canadian exports to the EC but for the ban would have declined in
proportion to the decline in apparent consumption.
60. On this basis, we estimate annual Canadian exports of EBO in case the ban had been lifted on
13 May 1999 to be 2,630 tonnes. We note that our estimate for the Canadian share in total North
American EBO exports to the EC is lower than the share claimed by Canada. We recall, however,
that our estimate (4.7 per cent) is considerably higher than the current Canadian share in North
American EBO exports to the EC with the ban in place. From 1996-1998 Canada only exported
2 tonnes of EBO to the EC. For these reasons, we consider our estimate to be reasonable.
2. Estimated price of Canadian EBO exports under the "counterfactual"
61. Canada suggests reference to a North American price of US$ 1,501 per tonne (f.o.b.). The
US, third party in this dispute, refers to a higher price of US$ 1,689 or CDN$ 2,381 per tonne (f.o.b.).
The latter price is lower than the average 1996-1998 unit price of current US exports with the ban in
place (US$ 2,420 per tonne).
35 This is so because EBO prices would be expected to fall should the
ban be lifted, as a result of an increased volume of imports. The EC uses a 1986-1988 average price
of CDN$ 2,301 per tonne, a price very similar to the US suggestion and higher than the Canadian
suggestion. We consider the price suggested by the US to be reasonable.
62. Consequently, we calculate the total value of Canadian EBO exports to the EC under the
counterfactual to be CDN$ 6,261,954.
3. Estimated value of "current exports" to be deducted
63. As noted earlier
36, to estimate the nullification and impairment caused by the hormone ban
we have to deduct from the total value of exports under the counterfactual, the current value of
Canadian exports of EBO.

34 The consumption figures we used were calculated following the balance sheet approach, i.e.
consumption equals production plus imports minus exports, assuming no change in stocks. This is referred to as
the "apparent consumption".
35 Since Canada only exported two tonnes of EBO to the EC in the 1996-1998 period we consider these
US prices to be more relevant than current Canadian prices.
36 See paragraph 42.

64. Canada suggests deducting 1998 imports. We consider it more appropriate to deduct a 1996-
1998 average of actual Canadian exports to the EC in light of the point made by the EC that short-
term effects need to be eliminated.
65. On this basis we calculate that the value of current exports to be deducted from the estimated
exports under the counterfactual to be CDN$ 2,151.
4. Adjustment requested by the EC for Canadian EBO exports used not for human
consumption but in pet food
66. All data provided by the parties in respect of EBO – on the basis of which both the estimated
total value of Canadian exports but for the ban and current Canadian exports with the ban in place,
were calculated – do not distinguish between EBO for human consumption and EBO for pet food. In
contrast, Canada's claim of trade impairment caused by the ban only extends to EBO for human
consumption, not that used for pet food. This is so because the hormone ban itself does not apply to --
and therefore does not hamper trade in – EBO used for pet food. It is difficult to estimate how much
of the EBO ends up in pet food since both categories of EBO are imported under the same tariff
heading. The EC estimates the share of EBO imports from Canada that is used in pet food at 31.7 per
cent. Canada agrees that 10 per cent of all EBO is used in pet food. 37 Neither party has provided
documentary evidence in support of these figures. In particular, the EC – the party claiming that a
deduction should be made because of EBO use in pet food – has not substantiated its allegation of
31.7 per cent. For these reasons, we made an adjustment of 10per cent only.
5. Estimate of nullification and impairment in respect of EBO
67. Following our estimates developed above, we calculate the total amount of nullification and
impairment caused by the hormone ban on Canadian exports of EBO to be CDN$ 5,633,823.
F. TOTAL NULLIFICATION AND IMPAIRMENT
68. As a result of both calculations developed above, we estimate the total nullification and
impairment caused by the EC hormone ban on Canadian exports of beef and beef products at
CDN$ 11.3 million. The elements of this estimate are reproduced in Annex I to this report.
IV. ASSESSMENT OF THE PROPOSED LEVEL OF SUSPENSION OF CONCESSIONS
69. In reply to questions by the arbitrators, Canada submitted for each product on the proposed
suspension list the average import value of EC exports to Canada over a three-year period (1996-
1998). We consider the calculations thus provided to be reasonable. They are reproduced in Annex II
to this report.
70. As noted in paragraph 21 above, Canada is free to pick products from the proposed list as long
as the total trade value is lower than or equivalent to the amount of nullification and impairment we have
found, namely CDN$ 11.3 million.
71. We received confirmation from Canada that the actual level of suspension once implemented
will be equivalent to the level of nullification and impairment we have found. All we can do at this
stage is to encourage Canada to stand by this confirmation and to abide by Article 22.4 of the DSU.
In the event of a future dispute on this issue, we note that the EC could start normal - or arguably even

37 Annex B, p. 2, to Canada's second submission.

expedited - DSU procedures challenging the consistency of the level of the Canadian suspension with
Article 22.4.
V. AWARD OF THE ARBITRATORS
72. For the reasons set out above, the arbitrators determine that the level of nullification or
impairment suffered by Canada in the matter European Communities – Measures Concerning Meat
and Meat Products (Hormones) is CDN$ 11.3 million per year.
73. Accordingly, the arbitrators decide that the suspension by Canada of the application to the
European Communities and its member States of tariff concessions and related obligations under
GATT 1994 covering trade in a maximum amount of CDN$ 11.3 million per year would be consistent
with Article 22.4 of the DSU.

ANNEX I
High quality beef: CDN$ 5,640,637
= [(11,500 * 1) * 0.08 * 8,594] - 2,265,843
 TRQ TRQ fill Can share price/t current exports
 (f.o.b.) (f.o.b.)
Edible beef offal: CDN $ 5,633,823
= [(3,223 * 0.816 * 2,381) - 2,151] * 0.90
av. 86-88 exports 18.4% adjustment price/t current exports 10% reduction for
 for decline in consumption (f.o.b.) (f.o.b.) pet food usage
but for the ban
Total: High quality beef and Edible beef offal
CDN$ 11.3 million

ANNEX II
List of products for suspension of concessions
proposed by Canada 38
Tariff Item or
Heading
Description Average import value
(1996-98)
CDN$
0201 Meat of bovine animals, fresh or chilled 746
0202 Meat of bovine animals, frozen 44,396
0203 Meat of swine, fresh, chilled, frozen 24,942,418
0206.29 Bovine edible offal, frozen 129
0707.00.99 Cucumbers and gherkins, fresh or chilled 4,687,027
0709.60 Peppers of the genus Capsicum or Pimenta, fresh, chilled 14,233,362
1108.13 Potato starch 4,823,942
1109 Wheat gluten, whether or not dried 4,245,776
1602.20.90 Livers of any animal prepared or preserved, Other 235,579
1602.41 Hams and cuts thereof of swine prepared or preserved 476,300
1602.42 Shoulders and cuts thereof of swine prepared or preserved 1,398,558
1602.49 Swine meat & meat offal, excl. livers/incl. Mixtures,
prepared or preserved
236,338
1602.50 Bovine meat and meat offal, excl. livers, prepared or
preserved
425,675
1704.90.90 Sugar, confectionery, (incl. white chocolate), not containing
cocoa
39,088,695
1806.90.90 Chocolates, and Chocolate confectionery, put up for retail
sale
75,523,171
1905.20 Gingerbread and the like 5,301,767
1905.30 Sweet biscuits, waffles and wafers 54,180,233
2002.10 Tomatoes, whole or in pieces prepared or preserved o/t by
vinegar or acetic acid
18,984,239
2007.99 Jams, fruit jellies, fruit or nut purée & paste, ckd prep.
sugared, sweetened or not
7,488,896
2008.70 Peaches o/w prep. or preserved whether or not sugared,
sweetened or not
9,213,227
2104.10 Soups and broths and preparations thereof 2,797,645
2201.10 Mineral and aerated waters not containing sugar or
sweetening matter nor flavoured
25,026,538
2208.50 Gin 12,435,709
2208.60 Vodka 10,622,416

38 See WT/DS48/17 and Canada's answer to arbitrators' question 10.