V - World Trade Organization

ARGUMENTS OF THE THIRD PARTIES[1]
The arguments of those third parties who made written and/or oral
statements to the Panel are summarized in this section. The summaries are
based on the executive summaries submitted by those third parties. Where a
third party has provided written responses to questions posed by the Panel,
these responses are set out in Annex A. (See list of Annexes at page xvi).
1 third party written submission of china China believes that it has substantial interests in the matter before this
panel whether European Communities' ("EC") administration of customs law is
in a uniform manner, as required by Article X:3(a) of the General Agreement
on Tariffs and Trade 1994 ("the GATT 1994"), and the requirements of prompt
review and correction of administrative actions relating to customs matters
by Article X:3(b) of the GATT 1994 have been met by the EC .
1 Issues relating to interpretation and application of Article X:3(a)
1 The scope of application of Article X:3(a) of the GATT 1994 Article X:3(a) of GATT 1994 concerns the administration of customs laws,
not the customs laws themselves. The EC seems concerned with whether
Article X:3(a) GATT applies to the administration of customs laws at the
local level as well as at the central level. Based on Article XXIV:12 of the GATT 1994 and the GATT Panel report in
Canada - Gold Coins, the EC drew its conclusion that "Article X:3(a) GATT
does not require that customs laws be regulated at the central level of
each WTO Member"[2]. Taking no position on this EC assertion, however, China does not think
Article XXIV:12 of the GATT 1994 and the GATT Panel report in Canada - Gold
Coins are proper in supporting EC's argument. Article XXIV:12 requires that the provisions of GATT be observed by both
the central government and the regional or local authorities of a
Contracting Party, and that the central government take the responsibility
for ensuring the observance of the provisions of GATT by its local
authorities. So, if there are any difficulties, encountered by the federal
government of a Contracting Party because of its particular administrative
or legal structures, in ensuring the observance of the provisions of GATT
by its local authorities, the federal government shall still seek such
reasonable measures as are available to it to secure the observance of the
provisions of GATT by its local authorities in accordance with
Article XXIV:12 until the actions or measures inconsistent with any
provisions of GATT by its local authorities are removed. The federal
government of such a Contracting Party shall compensate, because of such
actions or measures by its local authorities, for any nullified or impaired
benefits accruing to other Contracting Parties under the provisions of the
GATT.[3] According to the GATT panel in Canada - Gold Coins, Article XXIV:12 applies
to those measures taken by the local level authority of contracting parties
with federal regimes when administering their laws or regulations of local
level.[4] The present dispute does not concern a measure taken by the
local authority when administering their laws or regulations of local
level, but concerns whether the EC customs laws (i.e. laws of central
level) can be administered by the EC member States (i.e. local level
authority) and whether such administration is in a uniform manner. The GATT panel in Canada - Gold Coins further stated that Article XXIV:12
does not change the scope of application of the provisions of the GATT.[5]
China agrees with the EC that "Article X:3(a) GATT does not prescribe the
specific way in which WTO Members should administer their customs laws"[6].
However, the obligation of uniform administration of customs laws should
not be varied.
2 The meaning of "uniform" as used in Article X:3(a) of the GATT 1994 The ordinary meaning of "uniform", as relevant here, is "of one unchanging
form, character, or kind; that is or stays the same in different places or
circumstances, or at different times"[7]. The panel in Argentina - Hides and Leather stated: "Customs laws should not
vary, that every exporter and importer should be able to expect treatment
of the same kind, in the same manner both over time and in different places
and with respect to other persons. Uniform administration requires that
Members ensure that their laws are applied consistently and predictably.
This is a requirement of uniform administration of Customs laws and
procedures between individual shippers and even with respect to the same
person at different times and different places"[8]. China considers that the interpretation clarified by the panel in Argentina
- Hides and Leather of the word "uniform" as used in Article X:3(a) is of
the same substance with this ordinary meaning of "uniform". China believes that when addressing the meaning of the word "uniform"
reference should be made to the interpretation given by the panel in
Argentina - Hides and Leather.
3 The standard of uniformity required by Article X:3(a) of the GATT 1994 The EC argues that "Article X:3(a) GATT only lays down minimum
standards"[9]. The EC referred to the Appellate Body report in US - Shrimp
to support its argument. The paragraph referred to by the EC of the
Appellate Body report in US - Shrimp reads: "It is also clear to us that Article X:3 of the GATT 1994 establishes
certain minimum standards for transparency and procedural fairness in
the administration of trade regulations which, in our view, are not
met here. ......"[10] (emphasis added by China). The minimum standards articulated by the Appellate Body are for
transparency and procedural fairness in the administration of trade
regulations, not for directly the uniformity requirement of the
administration of customs law. The EC also referred to the Panel report in Argentina - Hides and Leather
to support its argument. However, the paragraphs referred to by the EC
address the meaning of the word "uniform", and do not directly concern the
standard of the uniformity.
2 Conclusion China thanks the Panel to provide an opportunity to comment on the issues
involved in this proceedings, and hopes that its comments will prove to be
helpful.
2 third party written submission of japan
1 Introduction Japan participates in this dispute based on its systemic interests in the
correct interpretation and application of Articles X:3(a) and (b) of the
General Agreement on Tariffs and Trade 1994 ("the GATT 1994").
2 Consistency of the challenged measures with Article X:3(a) of the GATT
1 The meaning of the term "uniform" administration in Article X:3(a) of the
GATT 1994 As a premise, Japan agrees with the United States that the EC, as a
Contracting Party, is responsible for ensuring a uniform administration of
customs matters throughout its territory[11], and that the term "general
application" in Article X:1 GATT would in EC's case mean the general
application within the EC as a whole. The United States claims that the "EC's customs laws are administered by 25
different authorities, among which divergences inevitably occur, and the EC
does not provide for the systemic reconciliation of such divergences."[12]
The United States elaborates that such divergences and the lack of systemic
reconciliation of the divergences occur in customs classification, customs
valuation and customs procedures of the EC member States.[13] In determining the meaning of the term "uniform" required under
Article X:3(a) GATT, it is useful to first recall the Panel's finding in US
- Hot-Rolled Steel. The Panel held that, for a Member's measure to be
inconsistent with GATT X:3(a) GATT, it would have to have a significant
impact on the overall administration of that Member's law and not simply on
an impact on the outcome in the single case in question. The Panel found: While it is not inconceivable that a Member's actions in a single
instance might be evidence of lack of uniform, impartial, and
reasonable administration of its laws, regulations, decisions and
rulings, we consider that the actions in question would have to have a
significant impact on the overall administration of the law, and not
simply on the outcome in the single case in question. Moreover, we
consider it unlikely that such a conclusion could be reached where
actions in the single case in question were, themselves, consistent
with more specific obligations under other WTO Agreements. [14] The panel's finding in Argentina - Hides and Leather is also relevant. The
Panel found that: We are of the view that this provision should not be read as a broad
anti-discrimination provision. We do not think this provision should
be interpreted to require all products be treated identically. That
would be reading far too much into this paragraph which focuses on the
day to day application of Customs laws, rules and regulations. There
are many variations in products which might require differential
treatment and we do not think this provisions should be read as a
general invitation for a panel to make such distinctions.[15] The GATT Panel in EEC - Dessert Apples, has also made a finding regarding
Article X:3(a) of the GATT that minimal differences do not constitute a
breach thereof, as follows:[16] The Panel further noted that the EEC Commission Regulations in
question were directly applicable in all of the ten member States
conce