BRAZIL – CERTAIN MEASURES CONCERNING TAXATION AND CHARGES NOTIFICATION OF AN OTHER APPEAL BY THE EUROPEAN UNION 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
Document: THE WORKING PROCEDURES FOR APPELLATE REVIEW
Date: 6 October 2017
Document codes: WT/DS472/9
Complainant: EU
Respondent: Brazil
Third parties: Argentina, Australia, Canada, China, Colombia, India, Japan, South Korea, Russia, South Africa, Taiwan, Turkey, U.S.
Dispute stage: Appellate Body
Agreements cited: Art. I:1, III:2, III:4, III:5  GATT 1994Art. 3.1(b), 3.2, 1.1  Subsidies and Countervailing Measures (SCM)Art. 2.1, 2.2  Trade-Related Investment Measures (TRIMs)

BRAZIL – CERTAIN MEASURES CONCERNING TAXATION AND CHARGES
NOTIFICATION OF AN OTHER APPEAL BY THE EUROPEAN UNION 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 communication, dated 3 October 2017, from the delegation of the European Union,
is being circulated to Members.

Pursuant to Article 16.4 and Article 1 7.1 of DSU, the European Union hereby notifies to the
Dispute Settlement Body its decision to appeal to the Appellate Body certain issues of law covered
in the Panel Report and certain legal interpretations developed by the Panel in the dispute Brazil –
Certain Measures Concerning Taxation and Charges (WT/DS472). Pursuant to Rule 23(1) of the
Working Procedures for Appellate Review , the European Union simultaneously files this Notice of
Other Appeal with the Appellate Body Secretariat.
For the reasons to be further elaborated in its submissions to the Appellate Body, the
European Union appeals, and requests the Appellate Body to reverse or modify the findings and
conclusions of the Panel with respect to the errors of law and legal interpretations contained i n the
Panel Report described below, and where indicated to complete the analysis on the basis of the
Panel's findings and uncontested facts on the record:1
1. The Panel failed to make an objective assessment of the matter before it in accordance with
Article 11 of DSU by exercising false judicial economy in relation to the European Union's
request to make findings also on the in -house scenario in the context of the ICT and
INOVAR-AUTO programmes. 2 Thus, the European Union requests the Appellate Body to
reverse the Panel's findings, to complete the legal analysis with regard to the in -house
scenario and to find that the production-step requirements contained in th e ICT and
INOVAR-AUTO programmes are inconsistent with Articles III:4 of GATT 1994, Article 2.1 of
TRIMS Agreement and Article 3.1(b) of SCM Agreement also under the in-house scenario.
2. In the alternative, were the Appellate Body to consider that the Panel correctly exercised
judicial economy when failing to make specific findings on the in -house scenario, the
European Union requests the Appellate Body to review, pursuant to Article 17.6 of DSU, the
legal interpretations developed by the Panel and modify, pu rsuant to Article 17.13 of DSU,
the findings contained in paragraphs 7.298 -7.314 and 7.746 -7.751 of its Report, so as to
make it clearer that the Panel indeed did not need to rule twice on the production step
requirements (in the in -house and in the outsou rcing scenarios) because the Panel had
already found that those steps are per se inconsistent with the covered agreements, since
they make an advantage/subsidy contingent upon the use of domestic over imported goods,

1 Pursuant to Rule 23(2)(c)(ii)(C) of the Working Procedures for Appellate Review this Notice of Other
Appeal includes an indicative list of the paragraphs of the Panel Report containing the alleged errors, without
prejudice to the ability of the European Union to refer to other paragraphs of the Panel Report in the context of
its appeal.
2 Panel Report, paras. 6.10, 6.11 and 6.13, 7.314, 7.749, and 8.5.

regardless of whether those domestic goods are manufactured by the accredited company or
a third party.3
3. Finally, the European Union makes a subordinate claim of error, subject to the
Appellate Body rejecting both the first claim of error formulated by the European Union (that
the Panel exercised false judicial economy) and the alternative claim of appeal. In that case,
the European Union requests the Appellate Body to find that the Panel, by failing to consider
the European Union's claims under Article III:4 of GATT 1994, Article 2.1 of
TRIMS Agreement and Article 3.1(b) of SCM Agreement in light of all the relevant facts of
the case (which included both the in -house and outsourcing scenarios), erred in the
application of those provisions. 4 Accordingly, the European Union requests the
Appellate Body to reverse the Panel's findings, to complete the legal analysis with regard to
the in-house scenario and to find that the production-step requirements contained in the ICT
and INOVAR-AUTO programmes are inconsistent with Articles III:4 of GATT 1994, Article 2.1
of TRIMS Agreement and Article 3.1(b) of SCM Agreement also under the in-house scenario.