Organization
WT/DS332/AB/R
3 December 2007
(07-5290)
Original: English
BRAZIL – MEASURES AFFECTING IMPORTS OF RETREADED TYRES
AB-2007-4
Report of the Appellate Body
WT/DS332/AB/R
Page vii
I. Introduction 1
II. Arguments of the Participants and the Third Participants 6
A. Claims of Error by the European Communities – Appellant 6
1. The Necessity Analysis 6
2. The Chapeau of ArticleXX of the GATT 1994 12
3. Conditional Appeal 18
B. Arguments of Brazil – Appellee 21
1. The Necessity Analysis 21
2. The Chapeau of ArticleXX of the GATT 1994 25
3. The European Communities' Conditional Appeal 29
C. Arguments of the Third Participants 33
1. Argentina 33
2. Australia 34
3. Japan 37
4. Korea 38
5. The Separate Customs Territory of Taiwan, Penghu, Kinmen, and Matsu 40
6. United States 43
III. Issues Raised in This Appeal 45
IV. Background and the Measure at Issue 46
A. Factual Background 46
B. The Measure at Issue 47
C. Related Measures 50
V. The Panel's Analysis of the Necessity of the Import Ban 52
A. The Panel's Necessity Analysis under Article XX(b) of the GATT 1994 52
1. The Panel's Analysis of the Contribution of the Import Ban to the Achievement of Its Objective 52
2. The Panel's Analysis of Possible Alternatives to the Import Ban 63
3. The Weighing and Balancing of Relevant Factors by the Panel 70
B. The Panel's Necessity Analysis and Article 11 of the DSU 73
1. Article 11 of the DSU and the Panel's Analysis of the Contribution of the Import Ban to the Achievement of Its Objective 74
2. Article 11 of the DSU and the Panel's Examination of Possible Alternatives to the Import Ban 78
C. General Conclusion on the Necessity Analysis under Article XX(b) of the GATT 1994 82
VI. The Panel's Interpretation and Application of the Chapeau of Article XX of the GATT 1994 83
A. The MERCOSUR Exemption and the Chapeau of Article XX of the GATT 1994 83
1. The MERCOSUR Exemption and Arbitrary or Unjustifiable Discrimination 85
2. The MERCOSUR Exemption and Disguised Restriction on International Trade 93
B. Imports of Used Tyres through Court Injunctions and the Chapeau of ArticleXX of the GATT 1994 95
1. Imports of Used Tyres through Court Injunctions and Arbitrary or Unjustifiable Discrimination 95
2. Imports of Used Tyres and Disguised Restriction on International Trade 98
VII. The European Communities' Claims that the MERCOSUR Exemption Is Inconsistent with Article I:1 and Article XIII:1 of the GATT 1994 99
VIII. Findings and Conclusions 101
ANNEX I Notification of an Appeal by the European Communities under Article 16.4 and Article 17 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU), and under Rule 20(1) of the Working Procedures for Appellate Review
CASES CITED IN THIS REPORT
Australia – Salmon / Appellate Body Report, Australia – Measures Affecting Importation of Salmon, WT/DS18/AB/R, adopted 6November 1998, DSR1998:VIII, 3327
Brazil – Retreaded Tyres / Panel Report, Brazil – Measures Affecting Imports of Retreaded Tyres, WT/DS332/R, circulated to WTO Members 12 June 2007
Canada – Dairy / Appellate Body Report, Canada – Measures Affecting the Importation of Milk and the Exportation of Dairy Products, WT/DS103/AB/R, WT/DS113/AB/R and Corr.1, adopted 27October 1999, DSR1999:V, 2057
Canada – Wheat Exports and Grain Imports / Appellate Body Report, Canada – Measures Relating to Exports of Wheat and Treatment of Imported Grain, WT/DS276/AB/R, adopted 27September 2004, DSR2004:VI, 2739
Chile – Price Band System (Article 21.5 – Argentina) / Appellate Body Report, Chile – Price Band System and Safeguard Measures Relating to Certain Agricultural Products – Recourse to Article 21.5 of the DSU by Argentina, WT/DS207/AB/RW, adopted 22 May 2007
Dominican Republic – Import and Sale of Cigarettes / Appellate Body Report, Dominican Republic – Measures Affecting the Importation and Internal Sale of Cigarettes, WT/DS302/AB/R, adopted 19May 2005, DSR 2005:XV, 7367
Dominican Republic – Import and Sale of Cigarettes / Panel Report, Dominican Republic – Measures Affecting the Importation and Internal Sale of Cigarettes, WT/DS302/R, adopted 19May 2005, as modified by Appellate Body Report, WT/DS302/AB/R, DSR 2005:XV, 7425
EC – Asbestos / Appellate Body Report, European Communities – Measures Affecting Asbestos and Asbestos-Containing Products, WT/DS135/AB/R, adopted 5April 2001, DSR2001:VII, 3243
EC – Asbestos / Panel Report, European Communities – Measures Affecting Asbestos and Asbestos-Containing Products, WT/DS135/R and Add.1, adopted 5April 2001, as modified by Appellate Body Report, WT/DS135/AB/R, DSR2001:VIII, 3305
EC – Bed Linen
(Article 21.5 – India) / Appellate Body Report, European Communities – Anti-Dumping Duties on Imports of Cotton-Type Bed Linen from India – Recourse to Article 21.5 of the DSU by India, WT/DS141/AB/RW, adopted 24April 2003, DSR2003:III, 965
EC – Export Subsidies on Sugar / Appellate Body Report, European Communities – Export Subsidies on Sugar, WT/DS265/AB/R, WT/DS266/AB/R, WT/DS283/AB/R, adopted 19May 2005, DSR 2005:XIII, 6365
EC – Hormones / Appellate Body Report, EC Measures Concerning Meat and Meat Products (Hormones), WT/DS26/AB/R, WT/DS48/AB/R, adopted 13February 1998, DSR1998:I, 135
EC – Sardines / Appellate Body Report, European Communities – Trade Description of Sardines, WT/DS231/AB/R, adopted 23October 2002, DSR2002:VIII, 3359
EC – Selected Customs Matters / Appellate Body Report, European Communities – Selected Customs Matters, WT/DS315/AB/R, adopted 11 December 2006
EC – Tube or Pipe Fittings / Appellate Body Report, European Communities – Anti-Dumping Duties on Malleable Cast Iron Tube or Pipe Fittings from Brazil, WT/DS219/AB/R, adopted 18August 2003, DSR2003:VI, 2613
Japan – Agricultural ProductsII / Appellate Body Report, Japan – Measures Affecting Agricultural Products, WT/DS76/AB/R, adopted 19March 1999, DSR1999:I, 277
Japan – Alcoholic BeveragesII / Appellate Body Report, Japan – Taxes on Alcoholic Beverages, WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R, adopted 1November 1996, DSR1996:I, 97
Japan – Apples / Appellate Body Report, Japan - Measures Affecting the Importation of Apples, WT/DS245/AB/R, adopted 10December 2003, DSR2003:IX, 4391
Korea – Alcoholic Beverages / Appellate Body Report, Korea – Taxes on Alcoholic Beverages, WT/DS75/AB/R, WT/DS84/AB/R, adopted 17February 1999, DSR1999:I, 3
Korea – Dairy / Appellate Body Report, Korea – Definitive Safeguard Measure on Imports
of Certain Dairy Products, WT/DS98/AB/R, adopted 12January 2000, DSR2000:I,3
Korea – Various Measures on Beef / Appellate Body Report, Korea – Measures Affecting Imports of Fresh, Chilled and Frozen Beef, WT/DS161/AB/R, WT/DS169/AB/R, adopted 10January 2001, DSR2001:I, 5
Korea – Various Measures on Beef / Panel Report, Korea – Measures Affecting Imports of Fresh, Chilled and Frozen Beef, WT/DS161/R, WT/DS169/R, adopted 10January 2001, as modified by Appellate Body Report, WT/DS161/AB/R, WT/DS169/AB/R, DSR2001:I, 59
Mexico – Taxes on Soft Drinks / Appellate Body Report, Mexico – Tax Measures on Soft Drinks and Other Beverages, WT/DS308/AB/R, adopted 24March 2006
Turkey – Textiles / Appellate Body Report, Turkey – Restrictions on Imports of Textile and Clothing Products, WT/DS34/AB/R, adopted 19November 1999, DSR1999:VI, 2345
US – Carbon Steel / Appellate Body Report, United States – Countervailing Duties on Certain Corrosion-Resistant Carbon Steel Flat Products from Germany, WT/DS213/AB/R and Corr.1, adopted 19December 2002, DSR2002:IX, 3779
US – Corrosion-Resistant Steel Sunset Review / Appellate Body Report, United States – Sunset Review of Anti-Dumping Duties on Corrosion-Resistant Carbon Steel Flat Products from Japan, WT/DS244/AB/R, adopted 9January 2004, DSR2004:I, 3
US – Gambling / Appellate Body Report, United States – Measures Affecting the Cross-Border Supply of Gambling and Betting Services, WT/DS285/AB/R and Corr.1, adopted 20April 2005, DSR 2005:XII, 5663
US – Gambling / Panel Report, United States – Measures Affecting the Cross-Border Supply of Gambling and Betting Services, WT/DS285/R, adopted 20April 2005, as modified by Appellate Body Report, WT/DS285/AB/R, DSR 2005:XII, 5797
US – Gasoline / Appellate Body Report, United States – Standards for Reformulated and Conventional Gasoline, WT/DS2/AB/R, adopted 20May 1996, DSR1996:I, 3
US – Line Pipe / Panel Report, United States – Definitive Safeguard Measures on Imports of Circular Welded Carbon Quality Line Pipe from Korea, WT/DS202/R, adopted 8March 2002, as modified by Appellate Body Report, WT/DS202/AB/, DSR2002:IV, 1473
US – Oil Country Tubular Goods Sunset Reviews / Appellate Body Report, United States – Sunset Reviews of Anti-Dumping Measures on Oil Country Tubular Goods from Argentina, WT/DS268/AB/R, adopted 17December 2004, DSR 2004:VII, 3257
US – Section 301 Trade Act / Panel Report, United States – Sections 301-310 of the Trade Act of 1974, WT/DS152/R, adopted 27January 2000, DSR2000:II, 815
US – Section 337 Tariff Act / GATT Panel Report, United States Section 337 of the Tariff Act of 1930, L/6439, adopted 7November1989, BISD36S/345
US – Shrimp / Appellate Body Report, United States – Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R, adopted 6November 1998, DSR1998:VII, 2755
US – Shrimp
(Article 21.5 – Malaysia) / Appellate Body Report, United States – Import Prohibition of Certain Shrimp
and Shrimp Products – Recourse to Article 21.5 of the DSU by Malaysia, WT/DS58/AB/RW, adopted 21November 2001, DSR2001:XIII, 6481
US – Shrimp
(Article21.5 – Malaysia) / Panel Report, United States – Import Prohibition of Certain Shrimp and Shrimp Products – Recourse to Article21.5 of the DSU by Malaysia, WT/DS58/RW, adopted 21November 2001, upheld by Appellate Body Report, WT/DS58/AB/RW, DSR2001:XIII, 6529
US – Wheat Gluten / Appellate Body Report, United States – Definitive Safeguard Measures on Imports of Wheat Gluten from the European Communities, WT/DS166/AB/R, adopted 19January 2001, DSR2001:II, 717
US – Wool Shirts and Blouses / Appellate Body Report, United States – Measure Affecting Imports of Woven Wool Shirts and Blouses from India, WT/DS33/AB/R and Corr.1, adopted 23May 1997, DSR1997:I, 323
ABBREVIATIONS USED IN THIS REPORT
ABR / Associação Brasileira do Segmento de Reforma de Pneus
(Brazilian Association of the Retreading Industry)
ABR Report / Report of the ABR on tyre retreading activities in Brazil, 26May 2006 (Exhibit BRA-95)
CONAMA / Conselho Nacional do Meio Ambiente
(National Council for the Environment of the Ministry of the Environment)
CONAMA Resolution 258/1999 / CONAMA Resolution No.258 of 26 August 1999
(Exhibits BRA-4 and EC-47)
CRTA / Committee on Regional Trade Agreements
DSB / Dispute Settlement Body
DSU / Understanding on Rules and Procedures Governing the Settlement of Disputes
Enabling Clause / GATT 1979 Decision on Differential and More Favourable Treatment, Reciprocity and Fuller Participation of Developing Countries, L/4903, 28 November 1979, BISD 26S/203
GATS / General Agreement on Trade in Services
GATT 1994 / General Agreement on Tariffs and Trade 1994
Import Ban / Prohibition imposed by Brazil on imports of retreaded tyres
INMETRO / Instituto Nacional de Metrologia, Normalização e Qualidade Industrial
(National Institute for Metrology, Standardization and Industrial Quality)
LAFIS / LAFIS Consultoria, Análises Sectoriais e de Empresas
MERCOSUR
or Mercosur / Mercado Común del Sur (Southern Common Market) – a regional trade agreement between Brazil, Argentina, Uruguay, and Paraguay, founded in 1991 by the Treaty of Asunción, amended and updated by the 1994 Treaty of Ouro Preto
MERCOSUR exemption / Exemption from the Import Ban afforded by Brazil to imports of retreaded tyres originating in MERCOSUR countries
OECD / Organisation for Economic Co-operation and Development
Panel Report / Panel Report, Brazil – Measures Affecting Imports of Retreaded Tyres
Portaria SECEX 8/2000 / Portaria SECEX No.8 of 25 September 2000
(Exhibits BRA-71 and EC-26)
Portaria SECEX 14/2004 / Portaria No.14 of the SECEX, dated 17 November 2004
(Exhibits BRA-84 and EC-29)
SECEX / Secretaria de Comércio Exterior
(Secretariat of Foreign Trade of the Brazilian Ministry of Development, Industry, and Foreign Trade)
Understanding on Article XXIV of the GATT 1994 / Understanding on the Interpretation of Article XXIV of the General Agreement on Tariffs and Trade 1994
Working Procedures / Working Procedures for Appellate Review, WT/AB/WP/5, 4January 2005
WTO / World Trade Organization
WT/DS332/AB/R
Page 1
World Trade Organization
Appellate Body
Brazil – Measures Affecting Imports of Retreaded TyresEuropean Communities, Appellant
Brazil, Appellee
Argentina, Third Participant
Australia, Third Participant
China, Third Participant
Cuba, Third Participant
Guatemala, Third Participant
Japan, Third Participant
Korea, Third Participant
Mexico, Third Participant
Paraguay, Third Participant
Separate Customs Territory of Taiwan, Penghu, Kinmen, and Matsu, Third Participant
Thailand, Third Participant
United States, Third Participant / AB-2007-4
Present:
Abi-Saab, Presiding Member
Baptista, Member
Taniguchi, Member
I. Introduction
1. The European Communities appeals certain issues of law and legal interpretations developed in the Panel Report, Brazil – Measures Affecting Imports of Retreaded Tyres (the "Panel Report").[1] The Panel was established to consider a complaint by the European Communities concerning the consistency of certain measures imposed by Brazil on the importation and marketing of retreaded tyres[2] with the General Agreement on Tariffs and Trade 1994 (the "GATT 1994").
2. Before the Panel, the European Communities claimed that Brazil imposed a prohibition on the importation of retreaded tyres, notably by virtue of Article40 of Portaria No.14 of the Secretaria de Comércio Exterior ("SECEX") (Secretariat of Foreign Trade of the Brazilian Ministry of Development, Industry, and Foreign Trade), dated 17 November 2004 ("Portaria SECEX 14/2004")[3], and that this prohibition was inconsistent with ArticleXI:1 of the GATT1994.[4] The European Communities also contended that certain Brazilian measures providing for the imposition of fines on the importation of retreaded tyres, and on the marketing, transportation, storage, keeping, or warehousing of imported retreaded tyres[5], were similarly inconsistent with ArticleXI:1 or, alternatively, ArticleIII:4 of the GATT 1994.[6] In addition, the European Communities made claims under ArticleIII:4 of the GATT 1994 in respect of certain state measures prohibiting the marketing of, and/or imposing disposal obligations on the importers of, imported retreaded tyres.[7] Finally, the European Communities challenged the exemption from the import prohibition on retreaded tyres and associated fines provided by Brazil to retreaded tyres originating in countries of the Mercado Común del Sur ("MERCOSUR") (Southern Common Market).[8] The European Communities contended that these exemptions were inconsistent with ArticlesI:1 and XIII:1 of the GATT 1994.[9]
3. Brazil did not contest that the prohibition on the importation of retreaded tyres and associated fines were prima facie inconsistent with ArticleXI:1[10]; or that state measures prohibiting the marketing of, and/or imposing disposal obligations on the importers of, imported retreaded tyres were prima facie inconsistent with ArticleIII:4[11]; or that the exemptions from both the import prohibition and associated fines afforded to retreaded tyres imported from MERCOSUR countries were prima facie inconsistent with ArticlesI:1 and XIII:1 of the GATT 1994.[12] Instead, Brazil submitted that the prohibition on the importation of retreaded tyres and associated fines, and state measures restricting the marketing of imported retreaded tyres, were all justified under ArticleXX(b) of the GATT 1994.[13] Brazil contended that the fines associated with the import prohibition on retreaded tyres were justified also under ArticleXX(d) of the GATT1994.[14] Brazil further maintained that the exemption from the import prohibition and associated fines afforded to imports of remoulded tyres from MERCOSUR countries was justified under ArticlesXX(d) and XXIV of the GATT 1994.[15]