Annex C - World Trade Organization

ANNEX C RESPONSES TO QUESTIONS BY THE PANEL AND OTHER PARTIES
|Contents |Page |
|Annex C-1 Responses by Brazil to Questions posed by the Panel |C-2 |
|after the First Substantive Meeting (14 October 2004) | |
|Annex C-2 Responses by Brazil to Questions posed by the Panel |C-31 |
|and the European Communities after the Second Substantive | |
|Meeting (2 December 2004) | |
|Annex C-3 Comments by Brazil on the European Communities' |C-44 |
|Responses to Questions after the Second Substantive Meeting | |
|(9 December 2004) | |
|Annex C-4 Responses by Thailand to Questions posed by the |C-59 |
|Panel after the First Substantive Meeting (14 October 2004) | |
|Annex C-5 Responses by Thailand to Questions posed by the |C-70 |
|Panel and the European Communities after the Second | |
|Substantive Meeting (2 December 2004) | |
|Annex C-6 Comments by Thailand on the European Communities' |C-76 |
|Responses to Questions after the Second Substantive Meeting | |
|(9 December 2004) | |
|Annex C-7 Responses by the European Communities to Questions |C-80 |
|posed by the Panel, Brazil and Thailand after the First | |
|Substantive Meeting (14 October 2004) | |
|Annex C-8 Responses by the European Communities to Questions |C-106 |
|posed by the Panel and Brazil after the Second Substantive | |
|Meeting (2 December 2004) | |
|Annex C-9 Comments by the European Communities on the |C-125 |
|Complainants' Responses to Questions following the Second | |
|Substantive Meeting (9 December 2004) | |
|Annex C-10 Responses by China to Questions posed by the Panel |C-130 |
|after the First Substantive Meeting (14 October 2004) | |
|Annex C-11 Responses by the United States posed by the Panel |C-132 |
|after the First Substantive Meeting (14 October 2004) | |
|Annex C-12 Responses by the World Customs Organization to |C-134 |
|Questions posed by the Panel after the First Substantive | |
|Meeting (29 October 2004) | |
|Annex C-13 Responses by the World Customs Organization to |C-142 |
|Questions posed by the Panel after the Second Substantive | |
|Meeting (2 December 2004) | |
|Annex C-14 Comments by Brazil, Thailand and the European |C-145 |
|Communities on the Responses by the World Customs Organization| |
|to the Questions posed by the Panel after the Second | |
|Substantive Meeting (16 December 2004) | |
ANNEX C-1 RESPONSES BY BRAZIL TO QUESTIONS POSED BY THE PANEL
AFTER THE FIRST SUBSTANTIVE MEETING (14 October 2004)
FOR BRAZIL: 1. In its Panel request, Brazil identifies "the measures at issue" as EC
Regulation 1223/2002 and EC Commission Decision of 31 January 2003. Is
Brazil challenging these measures as independent and autonomous measures?
If not, please explain. In the request for the establishment of a Panel, Brazil identified
the following as the specific measures at issue: (1) Commission Regulation (EC) No. 1223/2002, published in the
Official Journal of the EC on 9 July 2002, concerning the
classification of certain goods in the Combined Nomenclature
(CN); and (2) EC Commission Decision of 31 January 2003, published in the
Official Journal of the EC on 12 February 2003, concerning the
validity of certain binding tariff information (BTI) issued by
the Federal Republic of Germany. These are the measures being challenged. Nonetheless, Brazil considers that certain measures, namely
Regulations No. 1871/2003 and No. 2344/2003, came to pass as a result of
the changes in classification and tariff treatment brought about by
Regulation No. 1223/2002 and Commission Decision of 31 January 2003. To be
exact, because Regulation No. 1223/2002 and EC Commission Decision modified
- or gave a new interpretation to - the scope and definition of products
falling under subheading 0207.14.10 so as to include "other salted meat" of
subheading 0210.99.39; the EC was required to adjust the then existing
definition of "salted meat" of heading 0210 in its Combined Nomenclature to
avoid conflict with the new interpretation of the definition and scope of
subheading 0207.14.10. This change in the definition of "salted meat" of
heading 0210 occurred by means of Regulations No. 1871/2003 and No.
2344/2003. These measures were published in the EC's Official Journal a
little over a month after Brazil made its formal request for the
establishment of a Panel. Brazil considers that if Regulation No. 1223/2002 and Commission
Decision of 31 January 2003 are found to be inconsistent with the EC's
obligations under Article II of the GATT 1994 and the Panel recommends that
the EC bring these measures into conformity; Regulations No. 1871/2003 and
No. 2344/2003, which stem from Regulation No. 1223/2002 and Commission
Decision, would consequently also have to be brought into conformity. In line with our understanding, the Panel in Argentina - Footwear
concluded that measures not listed in the panel request or legal acts that
occur subsequent to the listed measure may properly fall within a Panel's
terms of reference if they are "closely related" to a measure listed in the
Panel request.[1] The Implementation Panel in Australia - Salmon[2] and
the Panel in Japan - Film[3] also considered "closely related measures",
"implementing measures" or measures which have a "clear relationship" to be
within the terms of reference. Moreover, the Panel in EC - Bananas III[4] established that the
identification of the general banana "regime" was sufficient to permit the
complainants' challenge against "subsequent" legislation. Regulations No.
1871/2003 and No. 2344/2003 were issued after the establishment of the
Panel in the present case, therefore, these regulations could not have been
mentioned in the request for establishment of the Panel. Paragraph 8.34 of
the panel report in Argentina - Footwear (EC) mentions that: "Argentina's
procedural objections concern modifications of the definitive safeguard
measure which is a situation quite similar to the "subsequent EC
legislation, regulations and administrative measures ... which implement,
supplement and amend [the EC banana] regime" and were found to be within
that panel's terms of reference." Regulations No. 1871/2003 and No. 2344/2003 "further refine and
implement the basic regulation"[5]: EC Regulation No. 1223/2002. Therefore,
in order to secure a positive solution to the dispute, as required by
article 3.7 of the DSU, these Regulations also fall within the Panel's
terms of reference and shall also be brought into conformity if found to be
in violation of the WTO Agreement. 2. Brazil is requested to provide proof of its assertion in paragraph 3
of its first written submission that it commenced exporting salted chicken
to the EC in 1998 in response to requests from the European processing
industry. Brazil is providing in Exhibit BRA-29 correspondences, invoices,
bills of lading and purchase orders of sales of salted chicken meat from
Brazil to the EC dated as far back as 1998. Brazil stresses that all
documents contained in Exhibit BRA-29 and all information therein
(including names of importers and processors) are highly sensitive and
confidential and should be treated as such during and after these
proceedings. We understand that the EC does not dispute that Brazil effectively
started exporting salted chicken to the EC, in 1998, under heading 0210.
We understand that the EC is questioning whether there is "demand" in
Europe for the product salted chicken meat. In that regard and in addition
to Exhibit BRA-29, Brazil is submitting Exhibit BRA-30 with letters from
European companies attesting why they prefer salted chicken meat over
unsalted chicken meat. We note that the last two letters in Exhibit BRA-30
show precisely the opposite situation: European companies that sell chicken
meat for direct consumption and cannot use salted meat for that end-use.
Brazil again emphasises that all letters and information contained in
Exhibit BRA-30, specially names of importers and processors, are
confidential and should be treated as such during and after these
proceedings. 3. With reference to paragraphs 50, 177 and 178 of its first written
submission, Brazil is requested to provide copies of BTIs that prove that
the specific products at issue in this dispute (i.e. frozen boneless
chicken cuts with a salt content of more than 1.2%) were classified under
heading 0210.90.20 up until the enactment of EC Regulation 1223/2002. To the best of Brazil's knowledge, binding tariff information (BTI)
means tariff information issued by customs authorities of EC Member States
that is binding on the administration of all Community Member States.[6]
Once BTIs are issued, they are introduced into a data-base run by the