From Wednesday's DSB meeting:
- With respect to the non-discrimination claims under Articles I and III of the GATT 1994, the findings by the Panel and Appellate Body are more troubling.
- In particular, we are not fully persuaded by the Appellate Body’s finding that the national treatment provisions of the TBT Agreement are to be interpreted differently from the national treatment provisions of the GATT 1994 in light of the fact that these two provisions contain identical wording.
- These findings appear to ensure that a measure could be found consistent with Article 2.1 of the TBT Agreement, yet inconsistent with the identically worded in GATT Article III:4.
- Indeed, these findings raise the very real possibility, as demonstrated in this dispute, that Article 2.1 of the TBT Agreement will become superfluous, and the legal approach developed in the recent TBT disputes will become just an historical footnote.
- The Appellate Body report seeks to respond to this concern in part by stating that “the European Union has not pointed to any concrete examples of a legitimate objective that could factor into an analysis under Article 2.1 of the TBT Agreement, but would not fall within the scope of Article XX of the GATT 1994.”
- However, there were such examples that were provided during the appeal. One such example is provided by the TBT Agreement text itself and that is – the preamble refers to “measures necessary to ensure the quality of” a Member’s exports. There is no parallel provision in Article XX of the GATT 1994.
- It is also difficult to understand how a “detrimental impact” on imports from one Member compared to another Member can by itself be sufficient to find that those imports are being treated less favorably. One would expect that any measure will affect some products differently from others. Yet that different treatment would not amount to discrimination unless one also looks at the reason why there was such a difference in treatment.