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Reports of the Panel

TABLE OF WTO CASES CITED IN THESE REPORTS

Short TitleFull Case Title and Citation
Argentina – Footwear (EC) Appellate Body Report, Argentina – Safeguard Measures on Imports of Footwear, WT/DS121/AB/R, adopted 12 January 2000, DSR 2000:I, 515
Argentina – Footwear (EC) Panel Report, Argentina – Safeguard Measures on Imports of Footwear, WT/DS121/R, adopted 12 Jan uary 2000, as modified by Appellate Body Report WT/DS121/AB/R, DSR 2000:II, 575
Argentina – Textiles and Apparel Appellate Body Report, Argentina – Measures Affecting Imports of Footwear, Textiles, Apparel and Other Items, WT/DS56/AB/R and Corr.1, adopted 22 April 1998, DSR 1998:III, 1003
Argentina – Textiles and Apparel Panel Report, Argentina – Measures Affecting Imports of Footwear, Textiles, Apparel and Other Items, WT/DS56/R, adopted 22 April 1998, as modified by Appellate Body Report WT/DS56/AB/R, DSR 1998:III, 1033
Brazil – Desiccated Coconut Appellate Body Report, Brazil – Measures Affecting Desiccated Coconut, WT/DS22/AB/R, adopted 20 March 1997, DSR 1997:I, 167
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 27 October 1999, DSR 1999:V, 2057
Canada – Dairy Panel Report, Canada – Measures Affecting the Importation of Milk and the Exportation of Dairy Products, WT/DS103/R, WT/DS113/R, adopted 27 October 1999, as modified by Appellate Body Report WT/DS103/AB/R, WT/DS113/AB/R, DSR 1999:VI, 2097
Canada – Dairy
(Article 21.5 – New Zealand and US)
Appellate Body Report, Canada – Measures Affecting the Importation of Milk and the Exportation of Dairy Products – Recourse to Article 21.5 of the DSU by New Zealand and the United States, WT/DS103/AB/RW, WT/DS113/AB/RW, adopted 18 December 2001, DSR 2001:XIII, 6829
Canada – Dairy
(Article 21.5 – New Zealand and US)
Panel Report, Canada – Measures Affecting the Importation of Milk and the Exportation of Dairy Products – Recourse to Article 21.5 of the DSU by New Zealand and the United States, WT/DS103/RW, WT/DS113/RW, adopted 18 December 2001, reversed by Appellate Body Report WT/DS103/AB/RW, WT/DS113/AB/RW, DSR 2001:XIII, 6865
Chile – Price Band System Appellate Body Report, Chile – Price Band System and Safeguard Measures Relating to Certain Agricultural Products, WT/DS207/AB/R, adopted 23 October 2002, DSR 2002:VIII, 3045 (Corr.1, DSR 2006:XII, 5473)
China – Auto Parts Appellate Body Reports, China – Measures Affecting Imports of Automobile Parts, WT/DS339/AB/R, WT/DS340/AB/R, WT/DS342/AB/R, adopted 12 January2009
China – Auto Parts Panel Reports, China – Measures Affecting Imports of Automobile Parts, WT/DS339/R, WT/DS340/R, WT/DS342/R and Add.1 and Add.2, adopted 12 January 2009, as upheld (WT/DS339/R), and as modified (WT/DS340/R, WT/DS342/R) by Appellate Body Reports WT/DS339/AB/R, WT/DS340/AB/R, WT/DS342/AB/R
China – Publications and Audiovisual Products Appellate Body Report, China –Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products, WT/DS363/AB/R, adopted 19 January 2010
China – Publications and Audiovisual Products Panel Report, China –Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products, WT/DS363/R and Corr.1, adopted 19 January 2010, as modified by Appellate Body Report WT/DS363/AB/R
Dominican Republic – Import and Sale of Cigarettes Panel Report, Dominican Republic – Measures Affecting the Importation and Internal Sale of Cigarettes, WT/DS302/R, adopted 19 May 2005, as modified by Appellate Body Report WT/DS302/AB/R, DSR 2005:XV, 7425
EC – Approval and Marketing of Biotech Products Panel Report, European Communities – Measures Affecting the Approval and Marketing of Biotech Products, WT/DS291/R, WT/DS292/R, WT/DS293/R, Add.1 to Add.9, and Corr.1, adopted 21 November 2006, DSR 2006:III‑VIII, 847
EC – Bananas III Appellate Body Report, European Communities – Regime for the Importation, Sale and Distribution of Bananas, WT/DS27/AB/R, adopted 25 September 1997, DSR 1997:II, 591
EC – Bananas III (US) Panel Report, European Communities – Regime for the Importation, Sale and Distribution of Bananas, Complaint by the United States, WT/DS27/R/USA, adopted 25 September 1997, as modified by Appellate Body Report WT/DS27/AB/R, DSR 1997:II, 943
EC – Bananas III
(Article 21.5 – Ecuador II)
Appellate Body Reports, European Communities – Regime for the Importation, Sale and Distribution of Bananas – Second Recourse to Article 21.5 of the DSU by Ecuador,WT/DS27/AB/RW2/ECU, adopted 11 December 2008, and Corr.1
EC – Bed Linen Appellate Body Report, European Communities – Anti-Dumping Duties on Imports of Cotton-Type Bed Linen from India, WT/DS141/AB/R, adopted 12 March 2001, DSR 2001:V, 2049
EC – Chicken Cuts Appellate Body Report, EuropeanCommunities – Customs Classification of Frozen Boneless Chicken Cuts, WT/DS269/AB/R, WT/DS286/AB/R, adopted 27 September 2005, and Corr.1, DSR 2005:XIX, 9157
EC – Chicken Cuts (Brazil) Panel Report, EuropeanCommunities – Customs Classification of Frozen Boneless Chicken Cuts, Complaint by Brazil, WT/DS269/R, adopted 27 September 2005, as modified by Appellate Body Report WT/DS269/AB/R, WT/DS286/AB/R, DSR 2005:XIX, 9295
EC – Chicken Cuts (Thailand) Panel Report, EuropeanCommunities – Customs Classification of Frozen Boneless Chicken Cuts, Complaint by Thailand, WT/DS286/R, adopted 27 September 2005, as modified by Appellate Body Report WT/DS269/AB/R, WT/DS286/AB/R, DSR 2005:XX, 9721
EC – Computer Equipment Appellate Body Report, European Communities – Customs Classification of Certain Computer Equipment, WT/DS62/AB/R, WT/DS67/AB/R, WT/DS68/AB/R, adopted 22 June1998, DSR 1998:V, 1851
EC – Computer Equipment Panel Report, European Communities – Customs Classification of Certain Computer Equipment, WT/DS62/R, WT/DS67/R, WT/DS68/R, adopted 22 June 1998, as modified by Appellate Body Report WT/DS62/AB/R, WT/DS67/AB/R, WT/DS68/AB/R, DSR 1998:V, 1891
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 19 May2005, DSR 2005:XIII, 6365
EC – Export Subsidies on Sugar (Australia) Panel Report, European Communities – Export Subsidies on Sugar, Complaint by Australia, WT/DS265/R, adopted 19 May 2005, as modified by Appellate Body Report WT/DS265/AB/R, WT/DS266/AB/R, WT/DS283/AB/R, DSR 2005:XIII, 6499
EC – Hormones Appellate Body Report, EC Measures Concerning Meat and Meat Products (Hormones) , WT/DS26/AB/R, WT/DS48/AB/R, adopted 13 February 1998, DSR 1998:I, 135
EC – Poultry Appellate Body Report, European Communities – Measures Affecting the Importation of Certain Poultry Products, WT/DS69/AB/R, adopted 23 July 1998, DSR 1998:V, 2031
EC – Selected Customs Matters Appellate Body Report, European Communities – Selected Customs Matters, WT/DS315/AB/R, adopted 11 December 2006, DSR 2006:IX, 3791
EC – Selected Customs Matters Panel Report, European Communities – Selected Customs Matters, WT/DS315/R, adopted 11 December 2006, as modified by Appellate Body Report WT/DS315/AB/R, DSR 2006:IX-X, 3915
EC – Trademarks and Geographical Indications (Australia) Panel Report, European Communities – Protection of Trademarks and Geographical Indications for Agricultural Products and Foodstuffs, Complaint by Australia, WT/DS290/R, adopted 20 April 2005, DSR 2005:X, 4603
EC – Trademarks and Geographical Indications (US) Panel Report, European Communities – Protection of Trademarks and Geographical Indications for Agricultural Products and Foodstuffs, Complaint by the United States, WT/DS174/R, adopted 20 April 2005, DSR 2005:VIII, 3499
Egypt – Steel Rebar Panel Report, Egypt – Definitive Anti-Dumping Measures on Steel Rebar from Turkey, WT/DS211/R, adopted 1 October 2002, DSR 2002:VII, 2667
Guatemala – Cement I Appellate Body Report, Guatemala – Anti‑Dumping Investigation Regarding Portland Cement from Mexico, WT/DS60/AB/R, adopted 25 November 1998, DSR 1998:IX, 3767
India – Additional Import Duties Appellate Body Report, India – Additional and Extra‑Additional Duties on Imports from the United States, WT/DS360/AB/R, adopted 17 November 2008
India – Additional Import Duties Panel Report, India – Additional and Extra‑Additional Duties on Imports from the United States, WT/DS360/R, adopted 17 November 2008, reversed by Appellate Body Report WT/DS360/AB/R
India – Patents (US) Appellate Body Report, India – Patent Protection for Pharmaceutical and Agricultural Chemical Products, WT/DS50/AB/R, adopted 16 January1998, DSR 1998:I, 9
India – Patents (US) Panel Report,India – Patent Protection for Pharmaceutical and Agricultural Chemical Products, Complaint by the United States, WT/DS50/R, adopted 16 January 1998, as modified by Appellate Body Report WT/DS50/AB/R, DSR 1998:I, 41
Japan – Alcoholic Beverages II Appellate Body Report, Japan – Taxes on Alcoholic Beverages, WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R, adopted 1 November1996, DSR 1996:I, 97
Japan – Alcoholic Beverages II Panel Report, Japan – Taxes on Alcoholic Beverages, WT/DS8/R, WT/DS10/R, WT/DS11/R, adopted 1 November1996, as modified by Appellate Body Report WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R, DSR 1996:I, 125
Japan – Apples Appellate Body Report, Japan – Measures Affecting the Importation of Apples, WT/DS245/AB/R, adopted 10 December 2003, DSR 2003:IX, 4391
Japan – Film Panel Report, Japan – Measures Affecting Consumer Photographic Film and Paper, WT/DS44/R, adopted 22 April 1998, DSR 1998:IV, 1179
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 10 January 2001, DSR 2001: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 10 January2001, as modified by Appellate Body Report WT/DS161/AB/R, WT/DS169/AB/R, DSR 2001:I, 59
Korea – Dairy Appellate Body Report, Korea – Definitive Safeguard Measure on Imports
of Certain Dairy Products
, WT/DS98/AB/R, adopted 12 January 2000, DSR 2000:I, 3
Korea – Dairy Panel Report, Korea – Definitive Safeguard Measure on Imports of Certain Dairy Products, WT/DS98/R and Corr.1, adopted 12 January 2000, as modified by Appellate Body Report WT/DS98/AB/R, DSR 2000:I, 49
Mexico – Anti‑Dumping Measures on Rice Panel Report, Mexico – Definitive Anti‑Dumping Measures on Beef and Rice, Complaint with Respect to Rice, WT/DS295/R, adopted 20 December 2005, as modified by Appellate Body Report WT/DS295/AB/R, DSR 2005:XXIII, 11007
Mexico – Corn Syrup
(Article 21.5 – US)
Appellate Body Report, Mexico – Anti‑Dumping Investigation of High Fructose Corn Syrup (HFCS) from the United States – Recourse to Article 21.5 of the DSUby the United States, WT/DS132/AB/RW, adopted 21 November 2001, DSR 2001:XIII, 6675
Mexico – Telecoms Panel Report, Mexico – Measures Affecting Telecommunications Services, WT/DS204/R, adopted 1 June2004, DSR 2004:IV, 1537
Thailand – H-Beams Appellate Body Report, Thailand – Anti-Dumping Duties on Angles, Shapes and Sections of Iron or Non-Alloy Steel and H-Beams from Poland, WT/DS122/AB/R, adopted 5 April 2001, DSR 2001:VII, 2701
Thailand – H-Beams Panel Report, Thailand – Anti-Dumping Duties on Angles, Shapes and Sections
of Iron or Non-Alloy Steel and H-Beams from Poland
, WT/DS122/R, adopted 5 April 2001, as modified by Appellate Body Report WT/DS122/AB/R, DSR 2001:VII, 2741
Turkey – Rice Panel Report, Turkey – Measures Affecting the Importation of Rice, WT/DS334/R, adopted 22 October 2007, DSR 2007:VI, 2151
US – Anti-Dumping Measures on Oil Country Tubular Goods Appellate Body Report, United States – Anti-Dumping Measures on Oil Country Tubular Goods (OCTG) from Mexico, WT/DS282/AB/R, adopted 28 November 2005, DSR 2005:XX, 10127
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 19 December 2002, DSR 2002:IX, 3779
US – Carbon Steel Panel Report, United States – Countervailing Duties on Certain Corrosion-Resistant Carbon Steel Flat Products from Germany, WT/DS213/R and Corr.1, adopted 19 December2002, as modified by Appellate Body Report WT/DS213/AB/R, DSR 2002:IX, 3833
US – Certain EC Products Appellate Body Report, United States – Import Measures on Certain Products from the European Communities, WT/DS165/AB/R, adopted 10 January 2001, DSR 2001:I, 373
US – Continued Zeroing Appellate Body Report, United States – Continued Existence and Application
of Zeroing Methodology
, WT/DS350/AB/R, adopted 19 February2009
US – Continued Zeroing Panel Report, United States – Continued Existence and Application of Zeroing Methodology, WT/DS350/R, adopted 19 February 2009, as modified as Appellate Body Report WT/DS350/AB/R
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 9 January 2004, DSR 2004:I, 3
US – FSC Appellate Body Report, United States – Tax Treatment for Foreign Sales Corporations, WT/DS108/AB/R, adopted 20 March 2000, DSR 2000:III, 1619
US – FSC Panel Report, United States – Tax Treatment for Foreign Sales Corporations, WT/DS108/R, adopted 20 March2000, as modified by Appellate Body Report WT/DS108/AB/R, DSR 2000:IV, 1675
US – Gambling Appellate Body Report, United States – Measures Affecting the Cross-Border Supply of Gambling and Betting Services, WT/DS285/AB/R, adopted 20 April 2005, DSR 2005:XII, 5663 (Corr.1, DSR 2006:XII, 5475)
US – Gambling Panel Report, United States – Measures Affecting the Cross-Border Supply of Gambling and Betting Services, WT/DS285/R, adopted 20 April 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 20 May 1996, DSR 1996:I, 3
US – Lead and Bismuth II Panel Report, United States – Imposition of Countervailing Duties on Certain Hot-Rolled Lead and Bismuth Carbon Steel Products Originating in the United Kingdom, WT/DS138/R and Corr.2, adopted 7 June 2000, as upheld by Appellate Body Report WT/DS138/AB/R, DSR 2000:VI, 2623
US – Offset Act
(Byrd Amendment)
Appellate Body Report, United States – Continued Dumping and Subsidy Offset Act of 2000, WT/DS217/AB/R, WT/DS234/AB/R, adopted 27 January2003, DSR 2003:I, 375
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 17 December2004, DSR 2004:VII, 3257
US – Oil Country Tubular Goods Sunset Reviews Panel Report, United States – Sunset Reviews of Anti-Dumping Measures on Oil Country Tubular Goods from Argentina, WT/DS268/R and Corr.1, adopted 17 December 2004, as modified by Appellate Body Report W/DS/268/AB/R, DSR 2004:VIII, 3421
US – Shrimp Appellate Body Report, United States – Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R, adopted 6 November 1998, DSR 1998:VII, 2755
US – Shrimp Panel Report, United States – Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/R and Corr.1, adopted 6 November1998, as modified by Appellate Body Report WT/DS58/AB/R, DSR 1998:VII, 2821
US – Softwood Lumber IV Appellate Body Report, United States – Final Countervailing Duty Determination with Respect to Certain Softwood Lumber from Canada, WT/DS257/AB/R, adopted 17 February 2004, DSR 2004:II, 571
US – Underwear Appellate Body Report, United States – Restrictions on Imports of Cotton and Man‑made Fibre Underwear, WT/DS24/AB/R, adopted 25 February1997, DSR 1997:I, 11
US – Underwear Panel Report,United States – Restrictions on Imports of Cotton and Man‑made Fibre Underwear, WT/DS24/R, adopted 25 February1997, as modified by Appellate Body Report WT/DS24/AB/R, DSR 1997:I, 31
US – Upland Cotton Appellate Body Report, United States – Subsidies on Upland Cotton, WT/DS267/AB/R, adopted 21 March2005, DSR 2005:I, 3
US – Upland Cotton Panel Report,United States – Subsidies on Upland Cotton, WT/DS267/R, Corr.1, and Add.1 to Add.3, adopted 21 March2005, as modified by Appellate Body Report WT/DS267/AB/R, DSR 2005:II, 299
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 19 January 2001, DSR 2001: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, adopted 23 May1997, and Corr.1, DSR 1997:I, 323
US – Wool Shirts and Blouses Panel Report, United States – Measure Affecting Imports of Woven Wool Shirts and Blouses from India, WT/DS33/R, adopted 23 May1997, upheld by Appellate Body Report WT/DS33/AB/R, DSR 1997:I, 343
US – Zeroing (EC) Appellate Body Report, United States – Laws, Regulations and Methodology for Calculating Dumping Margins (Zeroing) , WT/DS294/AB/R, adopted 9 May 2006, and Corr.1, DSR 2006:II, 417
US – Zeroing (Japan) (Article 21.5 – Japan) Appellate Body Report, United States – Measures Relating to Zeroing and Sunset Reviews – Recourse to Article 21.5 of the DSU by Japan, WT/DS322/AB/RW, adopted 31 August 2009

TABLE OF GATT CASES CITED IN THESE REPORTS

Short TitleFull Case Title and Citation
Canada – FIRA GATT Panel Report, Canada – Administration of the Foreign Investment Review Act, L/5504, adopted 7 February 1984, BISD 30S/140
EEC – Apples (US) GATT Panel Report, European Economic Community – Restrictions on Imports of Apples – Complaint by the United States, L/6513, adopted 22 June 1989, BISD 36S/135
EEC – Newsprint GATT Panel Report, Panel on Newsprint, L/5680, adopted 20 November 1984, BISD 31S/114
Greece – Phonograph Records Group of Experts Report, Greek Increase in Bound Duty, 9 November 1956, unadopted, L/580

TABLE OF ABBREVIATIONS USED IN THESE REPORTS

Short title Full title
Commission Regulation No. 517/1999 Commission Regulation (EC) No. 517/1999 of 9 March 1999, concerning the classification of certain goods in the Combined Nomenclature, OJ L 61/23, 10 March 1999.
Commission Regulation No. 400/2006 Commission Regulation (EC) No. 400/2006 of 8 March 2006, concerning the classification of certain goods in the Combined Nomenclature, OJ L 70/9, 9 March 2006.
ADP machines Automatic data-processing machines
BTI Binding Tariff Information
BTI Guidelines BTI Guidelines, Administrative Guidelines on the European Binding Tariff Information (EBTI) System and Its Operation, 28 October 2004.
CCT Community Customs Tariff
CN Council Regulation (EEC) No. 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, OJ L 256/1, 7 September 1987, as amended.
CN1997 Commission Regulation (EEC) No. 1734/96 of 9 September 1996, amending Annex I to Council Regulation (EEC) No. 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, OJ L 238/1, 19 September 1996, as amended.
CN2006 Commission Regulation (EC) No. 1719/2005 of 27 October 2005 amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff, OJ L 286/1, 28 October 2005, as amended.
CN2007 Commission Regulation (EC) No. 1549/2006 of 17 October 2006 of amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff, OJ L 301/1, 31 October 2006, as amended.
CN2008 Commission Regulation (EC) No. 1214/2007 of 20 September 2007 amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff, OJ L 286/1, 31 October 2007, as amended.
CN2009 Commission Regulation (EC) No. 1031/2008 of 19 September 2008, amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff, OJ L 291/1, 31 October 2008, as amended.
CN2010 Commission Regulation (EC) No. 948/2009 of 30 September 2009, amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff, OJ L 287, 31 October 2009, as amended.
CNEN Explanatory Notes to the CN.
CNEN 2008/C 112/03 Explanatory Notes to the Combined Nomenclature of the European Communities, 2008/C 112/03, OJ C 112/8, 7 May2008.
CNEN 2008/C 133/01 Explanatory Notes to the Combined Nomenclature of the European Communities: Publication Made in accordance with Article 9(1) of Council Regulation (EEC) No. 2658/87 of 23 July 1987 on the Tariff and Statistical Nomenclature and on the Common Customs Tariff, OJ C 133/1, 30 May 2008.
CNEN 2006/C 332/05 Uniform Application of the CN (Classification of goods), OJ C 332/05, 30 December 2006.
Comitology Decision Council Decision 1999/468/EC of 28 June 1999, establishing the procedures for the exercise of implementing powers conferred on the Commission, OJ L 184/23, 17 July 1999, as amended by Decision 2006/512/EC, OJ L 200/11, 22 July 2006.
Commission European Commission
Commission Regulation No. 1165/95 Commission Regulation (EC) No. 1165/95 of 23 May 1995 concerning the classification of certain goods in the combined nomenclature, OJ L 117/15, 24 May 1995.
Commission Regulation No. 2171/2005 Commission Regulation (EC) No. 2171/2005 of 23 December 2005 concerning the classification of certain goods in the Combined Nomenclature, OJ L 346/7, 29 December 2005.
Commission Regulation No. 2184/97 Commission Regulation (EC) No. 2184/97 of 3 November 1997, concerning the classification of certain goods in the Combined Nomenclature, OJ L 299/6, 4 November1997.
Commission Regulation No. 634/2005 Commission Regulation (EC) No. 634/2005 of 26 April 2005 concerning the classification of certain goods in the Combined Nomenclature, OJ L 106/7, 27 April 2005.
Community Customs Code or CCC Council Regulation (EEC) No. 2913/92 of 12 October 1992 establishing the Community Customs Code, OJ L 302/1, 19 October 1992, as amended.
Council Regulation No. 179/2009 Council Regulation (EC) No. 179/2009 of 5 March 2009 amending Annex I to Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs tariff, OJ L 63/1, 7 March 2009.
Council Regulation No. 2658/87 or CN Council Regulation (EEC) No. 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, OJ L 256/1, 7 September 1987, as amended.
Council Regulation No. 301/2007 Council Regulation (EC) No. 301/2007 of 19 March 2007 amending Annex I to Regulation (EEC) No. 2658/87 on the tariff and statistical nomenclature and on the Common Customs tariff, OJ L 81/11, 22 March 2007.
Council Regulation No. 493/2005 Council Regulation (EC) No. 493/2005 of 16 March 2005, amending Annex I to Regulation (EEC) No. 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff, OJ L 82/1, 31 March 2005.
2005 Statement Customs Code Committee – Tariff and Statistical Nomenclature Section, Report of the Conclusions of the 360th meeting of the Committee (26-28 January 2005), Annex VII, 3 March 2005.
Customs Code Committee (407th meeting) Customs Code Committee – Tariff and Statistical Nomenclatures Section (Mechanical/Miscellaneous Sector), Conclusions of the 407th Meeting of the Committee (18-20 October 2006), Draft CNEN on "Satellite receivers with built-in modem", Annex VI, 8 January 2007.
Customs Code Committee (413th meeting) Customs Code Committee – Tariff and Statistical Nomenclature Section (Mechanical/Miscellaneous Sector), Conclusions of the 413th meeting of the Committee (10-12 January 2007), point 5, 7 March 2007.
Customs Code Committee (420th meeting) Customs Code Committee – Tariff and Statistical Nomenclature Section (Mechanical/Miscellaneous Sector), Conclusions of the 420th Meeting of the Committee (18-20 April 2007), Draft CNEN on "Set-top boxes incorporating a hard disk", point 3.3. and Annex IV, 31 May 2007.
Customs Code Committee (432nd meeting) Customs Code Committee – Tariff and Statistical Nomenclature Section Mechanical/Miscellaneous Sector), Conclusions of the 432nd meeting of the Committee (19 October 2007), point 6, 15 November 2007.
Customs Code Committee (433rd meeting) Customs Code Committee – Tariff and Statistical Nomenclature Section (Heads of Tariff), Summary Report of the 433rd meeting of the Committee (22 October 2007), point 5, 23 November 2007.
EC member States member States of the European Communities
European Court of Justice (Clees) European Court of Justice 3 December 1998 (Clees v Hauptzollamt Wuppertal, C-259/97),[1998] ECR I‑08127.
European Court of Justice (Develop Dr. Eisbein) European Court of Justice 16 June 1994 (Develop Dr. Eisbein, C-35/93) [1994] ECR I-2655.
European Court of Justice (DFDS BV) European Court of Justice 16 September 2004 (DFDS BV v. Inspecteur der Belastingdienst, C-396/02), [2004] ECR I-8439.
European Court of Justice (Dittmeyer) European Court of Justice 15 February 1977 (Dittmeyer, C-69/76 and 70/76), [1977] ECR 231.
European Court of Justice (Gebr. Vismans Nederland BV) European Court of Justice 18 September 1990 (Gebr. Vismans Nederland BV v Inspecteur der Invoerrechten en Accijnzen, C-265/89), [1990] ECR I-3411.
European Court of Justice (GoldStar Europe) European Court of Justice 13 December 1994 (GoldStar Europe GmbH v Hauptzollamt Ludwigshafen, C-401/93), [1994] ECR I-5587.
European Court of Justice (Hewlett Packard) European Court of Justice 17 May 2001 (Hewlett Packard BV v Directeur général des douanes et droits indirects, C-119/99), [2001] ECR I-03981.
European Court of Justice (Kamino) European Court of Justice 19 February 2009 (Staatssecretaris van Financiën v Kamino International Logistics BV, C-376/07).
European Court of Justice (Rank Xerox) European Court of Justice 9 October 1997 (Rank Xerox Manufacturing Nederland BV, C-67/95), [1997] ECR I-5401.
European Court of Justice (Sunshine Deutschland Handelsgesellschaft) European Court of Justice 19 April 2007 (Sunshine Deutschland Handelsgesellschaft, C-229/06), [2007] ECR I-3251.
European Court of Justice (Kip and Hewlett Packard) European Court of Justice 11 December 2008 (Kip Europe and Others; and Hewlett Packard, C-363/07 v. Administration des douanes - Direction générale des douanes et droits indirects, C-362/07 and 363/07).
ECR European Court Reports
FPDs Flat Panel Displays
GIRs General Rules for the Interpretation of the HS or General Rules for the Interpretation of the CN
HS Harmonized Commodity Description and Coding System
HS Convention International Convention on the Harmonized Commodity Description and Coding System
HSEN Explanatory Notes to the HS
ITA Ministerial Declaration on Trade in Information Technology Products, 13 December 1996 (WT/MIN(96) /16)
MFMs Multifunctional digital machines
McGraw-Hill Dictionary McGraw-Hill Dictionary of Scientific and Technical Terms, 1994 (fifth edition).
Rules of Procedure of the Customs Code Committee Rules of procedure of the Customs Code Committee adopted by the Section for General Customs Rules of the Customs Code Committee on 5 December 2001 (TAXUD/741/2001).
STB set top box
STBCs set top boxes which have a communication function
The Shorter OxfordDictionary (1993) New Shorter Oxford English Dictionary, 1993 (4th edition), Volumes I and II.
The Shorter OxfordDictionary (2002) New Shorter Oxford English Dictionary, fifth edition, 2002, Volume I (A-M).
The Shorter Oxford Dictionary (2003) New Shorter Oxford English Dictionary, fifth edition,2003, Volume II (N-Z).
Vienna Convention Vienna Convention on the Law of Treaties 1969, done at Vienna on 23 May 1969. Entered into force on 27 January1980, United Nations, Treaty Series, vol. 1155, p. 331.

I. INTRODUCTION

A. Complaints of the united states, japan and chinese taipei

1.1.
On 28 May 2008, the United States and Japan, and on 12 June 2008, the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu ("Chinese Taipei"), independently requested consultations with the European Communities1 and its member States("European Communities")2 pursuant to Article 4 of the DSU and Article XXII:1 of the GATT 1994 regarding the tariff treatment that the European Communities accords to certain information technology products.3
1.2.
The United States, Japan and Chinese Taipei requested, pursuant to paragraph 11 of Article 4 of the DSU, to join in each other's consultations.4China, the Philippines, Singapore and Thailand requested to join in the consultations requested by the United States and Japan, and China also requested to join in the consultations requested by Chinese Taipei.5 The European Communities did not accept these requests, with the exception of the request of China to join in the consultations requested by Chinese Taipei.6
1.3.
Separate consultations were held in Geneva between each complaining party and the European Communities. The European Communities and the United States held their consultations on 25 and 26 June 2008 and 14 and 15 July 2008. The European Communities and Japan held their consultations on 26 June 2008 and 16 and 17 July 2008. The European Communities and Chinese Taipei held their consultations on 3, 18 and 25 July 2008. None of these consultations led to a mutually satisfactory resolution of the dispute.
1.4.
On 18 August 2008, the United States, Japan and Chinese Taipei, jointly and severally, requested the establishment of a panel pursuant to Article 6 of the DSU, with standard terms of reference.7 At its meeting on 29 August 2008, the Dispute Settlement Body ("DSB") deferred the establishment of a panel following opposition by the European Communities.8

B. establishment and composition of the Panel

1.5.
At its meeting on 23 September 2008, the DSB established a single Panel pursuant to the joint panel request of the United States, Japan and Chinese Taipei in document WT/DS375/8, WT/DS376/8 and WT/DS377/6 in accordance with Article 6 of the DSU.9
1.6.
At that meeting, the parties to the dispute agreed that the Panel should have standard terms of reference. The Panel's terms of reference are, therefore, as follows:

"To examine, in the light of the relevant provisions in the covered agreements cited by the parties to the dispute, the matter referred to the DSB by the United States, Japan and the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu in document WT/DS375/8, WT/DS376/8 and WT/DS377/6, and to make such findings as will assist the DSB in making the recommendations or in giving the rulings provided for in those agreements."

1.7.
On 12 January 2009, the United States, Japan and Chinese Taipei requested the Director-General to determine the composition of the Panel, pursuant to paragraph 7 of Article 8 of the DSU.
1.8.
On 22 January 2009, the Director-General accordingly composed the Panel as follows:10

Chairman:Mr Wilhelm Meier

Members: Mr David Evans

Ms Valerie Hughes

1.9.
Australia; Brazil; China; Costa Rica; Hong Kong, China; India; Japan (in respect of the United States' and Chinese Taipei's complaints); Korea; the Philippines; Singapore; Chinese Taipei (in respect of the United States' and Japan's complaints); Thailand; Turkey; the United States (in respect of Japan's and Chinese Taipei's complaints); and Viet Nam reserved their rights to participate in the Panel proceedings as third parties.11

C. Panel proceedings

1.10.
On 4 February 2009, the parties and the Panel held their organizational meeting. In that meeting, as well as in oral and written communications thereafter, the European Communities raised concerns on the status of the complaining parties as third parties to this dispute and also objected to the inclusion of its member States as responding parties of this dispute. The Panel will address these matters below, as appropriate, in the Findings Section of these Reports.
1.11.
The Panel held its first substantive meeting with the parties on 12 and 14 May 2009. The session with the third parties took place on 13 May 2009. The Panel held its second substantive meeting with the parties on 9 July 2009. Upon request by the complaining parties, and in accordance with the procedures adopted by the Panel after consulting with the parties, both the first and the second meetings were opened to the public.12 A real time closed-circuit television broadcast of the Panel's open sessions was presented in a separate room of the WTO building in Geneva to allow the public to observe the proceedings.
1.12.
On 25 August 2009, the Panel issued the draft descriptive part of its Panel Reports. On 8 September 2009, the Panel received comments from the parties on the draft descriptive part. The Panel issued its Interim Reports to the parties on 11 June 2010. The Panel issued its Final Reports to the parties on 23 July 2010.

II. FACTUAL ASPECTS

A. Measures at issue

2.1.
The complaining parties claim that the European Communities is required to accord duty-free tariff treatment to certain information technology products. These products13 are described by the complaining parties as certain "flat panel display devices" ("FPDs"), "set-top boxes which have a communication function" ("STBCs") and "multifunctional digital machines" ("MFMs")14. The complaining parties claim that the European Communities is obliged to grant such duty-free treatment under the European Communities Schedule of Concessions to the GATT 1994 ("the EC Schedule") pursuant to modifications therein to reflect the commitments it has made under the Ministerial Declaration on Trade in Information Technology Products ("Information Technology Agreement" or "ITA").15
2.2.
The complaining parties have identified the following as the measures at issue in this dispute:

1. FPDs

(a) Council Regulation (EC) No. 493/2005 of 16 March 2005;

(b) Commission Regulation (EC) No. 634/2005 of 26 April 2005;

(c) Commission Regulation (EC) No. 2171/2005 of 23 December 2005;

(d) Council Regulation (EEC) No. 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, including all annexes thereto, as amended;

(e) Explanatory Notes to the Combined Nomenclature of the European Communities, 2008/C 133/01 (May 30 2008), alone or in combination with Council Regulation (EEC) No. 2658/87 of 23 July 1987; and

(f) Any amendments or extensions and any related or implementing measures.

2. STBCs

(a) Council Regulation (EEC) No. 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, including all annexes thereto, as amended;

(b) Explanatory Notes to the Combined Nomenclature of the European Communities, 2008/C 112/03 (7 May 2008)16, alone or in combination with Council Regulation (EEC) No. 2658/87 of 23 July 1987; and

(c) Any amendments or extensions and any related or implementing measures.

3. MFMs

(a) Commission Regulation (EC) No. 517/1999 of 9 March 1999;

(b) Report of the Conclusions of the 360th meeting of the Customs Code Committee, Tariff and Statistical Nomenclature Section, TAXUD/555/2005-EN (March 2005);

(c) Commission Regulation (EC) No. 400/2006 of 8 March 2006;

(d) Council Regulation (EEC) No. 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, including all annexes thereto, as amended (including amendments adopted pursuant to Commission Regulation No. 1214/2007 of 20 September 2007); and

(e) Any amendments or extensions and any related or implementing measures.

B. Request For Information From The World Customs Organization

2.3.
On 8 September 2009, the Panel, pursuant to Article 13.1 of the DSU, sent a letter to the World Customs Organization ("WCO") Secretariat requesting its assistance in certain issues relating to the Harmonized System ("HS"). The WCO replied to the Panel's letter on 29 September 2009. On 14 October 2009, the parties submitted their comments on the WCO's reply.

C. Request for Separate Reports

2.4.
At the organizational meeting of 4 February 2009, the European Communities requested the Panel to issue separate Panel Reports. The complaining parties did not object to such request at that meeting. In their comments to the draft descriptive part of these Reports, the complaining parties requested that, if the Reports are issued as a single document, the conclusions and recommendations for each of the disputes be set out on separate pages, with each page bearing only the Report symbol relating to that dispute. The Panel findings are therefore issued in the form of a single document containing three separate Reports. The Panel's conclusions and recommendations for each of the disputes will be set out on separate pages, with each page bearing only the Report symbol relating to that dispute.17

III. PARTIES' REQUESTS FOR FINDINGS AND RECOMMENDATIONS

A. UNITED STATES, JAPAN AND CHINESE TAIPEI

3.1.
In light of the measures cited above, the complaining parties request the Panel to find as follows:

1. FPDs

3.2.
As a result of the measures cited above, the United States, Japan and Chinese Taipei request the Panel to find that the European Communities has acted inconsistently with Articles II:1(a) and II:1(b) of the GATT 1994 by according certain FPDs treatment less favourable than that provided in the EC Schedule, and by imposing on these products ordinary customs duties, or other duties and charges, in excess of those set forth in the EC Schedule.

2. STBCs

3.3.
As a result of the measures cited above, the United States, Japan and Chinese Taipei request the Panel to find that the European Communities has acted inconsistently with Articles II:1(a) and II:1(b) of the GATT 1994 by according STBCs treatment less favourable than that provided in the EC Schedule, and by imposing on these products ordinary customs duties, or other duties and charges, in excess of those set forth in the EC Schedule.
3.4.
The United States and Chinese Taipei further request the Panel to find that the European Communities, with respect to STBCs, has acted inconsistently with Articles X:1 and X:2 of the GATT 1994 by not promptly publishing the Explanatory Notes identified above in respect to these products and by applying duties to these products using the approach specified in these Explanatory Notes prior to the date of their publication.

3. MFMs

3.5.
As a result of the measures cited above, the United States, Japan and Chinese Taipei request the Panel to find that the European Communities has acted inconsistently with Articles II:1(a) and II:1(b) of the GATT 1994 by according certain MFMs treatment less favourable than that provided in the EC Schedule, and by imposing on these products ordinary customs duties, or other duties and charges, in excess of those set forth in the EC Schedule.

B. European Communities

3.6.
The European Communities requests that the Panel reject all the claims raised by the United States, Japan and Chinese Taipei.

IV. ARGUMENTS OF THE PARTIES

4.1.
The arguments of the parties, as set forth in their executive summaries of their written submissions and oral statements to the Panel, are attached to these Reports as Annexes A, B, C and D (see List of Annexes, pages ii and iii). The replies of the parties to questions and the parties' comments on each other's replies to questions are not attached to these Reports as annexes. They are, however, reflected in the findings section of these Reports where relevant.18

V. ARGUMENTS OF THE third parties

5.1.
The arguments of the third parties, as set forth in their executive summaries of their written submissions and oral statements to the Panel, are attached to these Reports as Annexe E (see List of Annexes, page iii).19 The replies of the third parties to questions are not attached to these Reports as annexes. They are however reflected in the findings section of these Reports where relevant.20

VI. interim review

6.1.
Pursuant to Article 15.3 of the DSU, the findings of the final panel report must include a discussion of the arguments made by the parties at the interim review stage. This Section of the Panel Report provides such a discussion. As Article 15.3 makes clear, this Section forms part of the Panel's findings.

A. Background

6.2.
The United States, Japan, Chinese Taipei and the European Communities separately requested an interim review by the Panel of certain aspects of the Interim Report issued to the parties on 11 June 2010.21 None of the parties requested an interim review meeting. However, the parties made use of the opportunity to submit further written comments on each others' requests.22 On 23 July 2010, the Panel issued its Final Report to the parties on a confidential basis.

B. Parties' requests for changes to the interim reports

6.3.
Below, the Panel will address the parties' requests for changes to the Interim Report. Unless otherwise indicated, the references below are to paragraph or footnote numbers appearing in the Interim Report.

1. General Comments

(a) Comments by the Complainants

6.4.
Japan requests the Panel to modify paragraph 7.91 to reflect its request that the Panel refrain from exercising judicial economy with respect to its claims regarding Attachments A and B of the ITA, and not just those pertaining to Attachment A.
6.5.
None of the parties have commented on Japan's request.
6.6.
The Panel has modified paragraph 7.91 to reflect Japan's request to refrain from exercising judicial economy with respect to its claims concerning Attachments A and B of the ITA.
6.7.
The complainants request the Panel to modify paragraphs 7.94, 7,119, 7,291, 7,599, 7,603 and other relevant paragraphs throughout the report to use the term "tariff item numbers" rather than "CN codes", where the terms are used to refer to eight-digit numbers appearing in the EC Schedule.
6.8.
The European Communities has not commented on the complainants' request.
6.9.
The Panel has replaced the term "CN code" with the term "tariff item number" where appropriate.
6.10.
The complainants ask that the panel modify paragraphs 7.82 - 7.90 7,290, 7,817 and 8.2 to reflect that EC member States have acted inconsistently with their obligations through the application of duties to products. They assert that the Panel has declined to consider certain applications by EC member States customs officials on grounds that the complainants limited their claims to "as such" challenges, and by asserting that reaching findings with respect to member States would not be necessary to secure a positive resolution to the dispute in view of "certain assurances" made by the European Communities. Japan and the United States argue, however, that failing to consider applications by member States may fail to provide a positive resolution to the dispute. This would result, they argue, if member States were to continue to impose duties on the products at issue. The United States and Japan argue that the claims are within the Panel's terms of reference. Moreover, they note that EC member States are WTO Members in their own right with individual obligations, and that the internal relationship between the European Communities and its member States cannot diminish the rights of other WTO Members to exercise their rights under the WTO Agreements.
6.11.
The European Communities requests the Panel to reject the complainants' request. It argues that the complainants may not challenge the "application" of duties by EC member States to the products at issue, in particular, in light of their statements to the Panel during the proceedings that the complainants have not challenged the measures on an "as applied" basis. The European Communities submits that it is "exclusively competent to decide the duty applicable to each product at issue", whereas the "application" of such duty is the sole responsibility of the EC member State customs authorities. In its view, the application of duties to products at issue is the same as the "application" of the EC measures at issue. The European Communities asserts that the complainants have not provided evidence of the application of duties to all products concerned by each of the 27 EC member States sufficient to support their claim regarding the application of duties, nor does it consider that the complainants may make their claim by referring solely to the legal effects of the EC measures.23 Finally, the European Communities challenges the view of the complainants that the Panel's failure to reach findings with respect to EC member States would compromise the ability of the complainants to achieve a positive resolution to the dispute. The European Communities contends that the complainants' position assumes that EC member State customs authorities would disregard EC law if the European Communities modified through amendment or repeal the measures at issue in order to implement the Panel report. As it argued in its submissions, the European Communities submits that it has exclusive competence to determine the applicable duty rate for the products at issue, and that member States are bound to apply any new applicable duty rate.
6.12.
The Panel observes that, despite the complainants' identification in their joint Panel request of all EC member States as respondents in this dispute, the complainants have directed their claims against a set of EC measures. While the complainants have submitted evidence of the application of duties by certain EC member State customs authorities in particular instances, we recall that the complainants have confirmed to the Panel that they did not seek to challenge these particular applications, but rather submitted such evidence in support of their "as such" claims against the EC measures. The Panel also observes that the evidence provided by the complainants does not reflect all customs determinations by all EC member States. For these reasons, the Panel considers that it has made the appropriate findings in this regard and hence, we have not made the requested changes. We have nevertheless adjusted paragraph 8.2 to clarify our position in this regard.
6.13.
The complainants request the Panel to designate the argument set forth in the penultimate sentence in paragraph 7.95 regarding whether or not the complainants have made a "prima facie" case as that advanced by the European Communities. They contend that the Panel has not necessarily adopted the European Communities' characterization in its reports and the paragraph should be clearer to that effect.
6.14.
The European Communities has not commented on the complainants' request.
6.15.
The Panel has inserted the terms "according to the European Communities", in the penultimate sentence, for purposes of clarification, specifying that the arguments pertain exclusively to the European Communities.
6.16.
The complainants request that the final clause in the last sentence of paragraph 7,114 be deleted, arguing that the Report considers the complainants' characterization of the measures for each of the claims, and not only certain claims "in particular".
6.17.
The European Communities has not commented on the complainants' request.
6.18.
The Panel has deleted the clause; it does not consider that this change affects the substance of the Reports.
6.19.
The complainants request the Panel to refer in paragraphs 7,119 and 7,315 to refer to a separate section of the Reports to reflect that the complainants have presented different views on whether the concessions based on Attachment B of the ITA are located exclusively in the Annex to the EC Schedule or whether they are incorporated by reference. In particular, the complainants request the Panel to include the following footnotes: "Regarding the complainants' views on the location of the concession, see paras. 7,213-7.220".
6.20.
The European Communities has not commented on the complainants' request.
6.21.
The Panel has inserted the footnote to clarify that the parties hold different views on the location of the concessions.
6.22.
The complainants request the Panel to reconsider the relevant analysis in paragraph 7,137 in determining whether the 2009 CN is within its terms of reference. In particular, the complainants argue that the approach set forth in paragraphs 7,169-1.170 that was used to evaluate whether the 2007 and 2009 regulations are within its terms of reference should also be relevant for evaluating the 2009 CN. The latter approach was discussed in the Appellate Body Report on Chile – Price Band System.
6.23.
The European Communities has not commented on the complainants' request.
6.24.
The Panel has revised paragraph 7,137 to reflect the decision of the Appellate Body in Chile – Price Band System, as discussed in paragraphs 7,175-7.176 of the Report, for purposes of completeness. The Panel has additionally harmonized the section with the approach taken in paragraphs 7,171-7.191.
6.25.
The complainants request the Panel to revise the final sentence in paragraph 7,183 to read "...we consider that a ruling that takes into consideration Council Regulation No. 179/2009 would aid in the settlement of this dispute". They argue, in paragraphs 7,168-7.190, that the Panel does not need to evaluate whether amendments to the duty suspensions (in particular Council Regulations Nos. 301/2007 and 179/2009) are within the Panel's terms of reference, or whether it may rule on the measures in the present dispute. The complainants argue that they included Council Regulation 493/2005 within the their joint Panel request due to the reference that certain flat panel displays using LCD technology that are "capable of reproducing video images from a source other than an automatic data-processing machine" are not covered by the ITA. The complainants do not contest that the Panel may consider whether it will address the arguments made by the European Communities and the complainants in connection with these measures. In particular, the complainants recognize that the Panel may consider whether the duty suspensions "cure" the breach of Articles II:1(a) and II:1(b) resulting from the imposition of duties on certain displays. However, the complainants contend that the does not raise a question of the Panel's terms of reference. The complainants argue that the duty suspension elements of the measures in question were not part of the complainants' claims, and thus do not give rise to a terms of reference question.
6.26.
The European Communities has not commented on the complainants' request.
6.27.
The Panel notes that it has considered the duty suspension as set forth under Council Regulation 493/2005, and subsequently modified and extended under Council Regulations Nos. 301/2007 and 179/2009, not only due to the complainants' initial identification of Council Regulation 493/2005 as a measure at issue, but also in light of subsequent arguments made by both the European Communities and the complainants in connection with these regulations. Moreover, we note that Chinese Taipei and the European Communities have acknowledged the more recent modification, Council Regulation No. 179/2009, in the context of their arguments.24 Chinese Taipei noted that it considered that Council Regulations Nos. 301/2007 and 179/2009 have not changed the essential nature of the original measure in dispute.25 The Panel considers these measures to be relevant to its analysis of the measures as issue, particularly in light of argumentation advanced by the parties to this dispute. Having regard to the complainants' concern with the Panel's characterization of its analysis, however, the Panel has revised language in the section heading and paragraphs 7,167-7.171 and 7,183 accordingly.
6.28.
The complainants request the Panel to revise paragraph 7,198 to provide as follows: "means that the complainants have failed to satisfy the provisions of Article 6.2...".
6.29.
The European Communities argues that this change is one of substance and should be rejected.
6.30.
The Panel disagrees with the European Communities that this change affects the substance of the paragraph and agrees to make the change requested by the complainants.
6.31.
The complainants request the Panel to revise paragraph 7,229 to provide as follows: "The European Communities argues that CN codes 8528 51 00 and 8528 41 00 in the current CN are the relevant provisions implementing obligations pursuant to the ITA...".
6.32.
The European Communities argues that this change is one of substance and should be rejected. The European Communities submits generally that the paragraph misrepresents the arguments of the European Union, the last sentence of the paragraph having been taken out of context. Accordingly, the European Communities requests that the Panel review the paragraph in its entirety.
6.33.
The Panel has reviewed the paragraph in its entirety, which summarizes arguments appearing in paragraphs 44-47 of the European Communities' second written submission. The Panel has made minor editorial changes to paragraph 7,229 and sees no need for additional changes.
6.34.
The complainants request the Panel to modify the first sentence of paragraph 7,234 as follows, to reflect their arguments: "Based on the terms of the descriptions for these CN codes, it appears evident that under the CN 'monitors of a kind solely or principally used in an automatic data-processing system of heading 8471' are classifiable under duty free CN codes 8528 41 00 and 8528 51 00".
6.35.
The European Communities has not commented on the complainants' request.
6.36.
The Panel has made this editorial change, which does not alter the substance of the paragraph.

(b) Comments by the European Communities

6.37.
The European Communities requests the Panel to use the term "EC member States customs authorities" in place of "EC member States" in paragraphs 7,141, 7,147 and 7,150 for accuracy.
6.38.
The United States submits that the Panel uses the term "EC member States" correctly in the context in which these terms appear, to refer to the entities that have undertaken obligations pursuant to the EC legal regime under discussion. The United States asserts that the European Communities has not explained why the references are incorrect other than to state that EC member State customs authorities apply EC law. The United States argues that the European Communities does not contend that EC member State customs authorities are in fact authorities of the member State rather than of the European Communities.
6.39.
The Panel does not perceive a substantive distinction between one term or the other in the context of its Reports. We note, in addition, that the Panel used the term "EC member States" in discussing their identification as respondents in the dispute in paragraphs 7.82 - 7.90 of the report. For these reasons, and for consistency, the Panel does not consider it necessary to adopt the proposed changes of the European Communities.
6.40.
The European Communities requests the Panel to refrain, in paragraphs 7,161, 7,267, 7,757, 7.1153, 8.4, 8.5, 8.14, 8.16, 8.17, 8.25, 8.27, 8.28 and 8.37, from making recommendations with respect to point 4 in the annex to Commission Regulation No. 634/2005 and all of Commission Regulation No. 2171/2005. The European Communities argues that these provisions have been repealed by Commission Regulation No. 1179/2009 of 26 November 2009 (Articles 2 and 3 and Annex II, point 46 and Annex III, point 28). Furthermore, it requests the Panel to refrain from making recommendations with respect to CNEN 2008/C 133/01, because aspects thereof relevant to this dispute have been deleted. In addition, the European Communities requests the Panel to refrain from making recommendations with respect to Commission Regulation No. 517/99 in its entirety and point 4 of the Annex to commission Regulation No. 400/2006, arguing that these provisions have been repealed by Commission Regulation No. 1179/2009 of 26 November 2009. The European Communities refers to Attachments 1 and 2 to its Comments on the Interim Reports in these respects.
6.41.
The European Communities additionally requests that the following text be added at the end of each of paragraphs 8.14, 8.25 and 8.37: "Since the European Union has confirmed that point 4 of Commission Regulation No. 634/2005 has been deleted, Commission Regulation No. 2171/2005 has been repealed and the relevant parts of CNEN 2008/C 133/01 have been deleted, the Panel does not make any recommendations on these measures."
6.42.
Additionally, in commenting on paragraph 7.1153 of the Interim Reports, the European Communities informs the Panel of the attachments to its comments on the Interim Reports. However, Unlike with its comments with respect to other paragraphs of the Interim Reports, the European Communities does not request any specific changes to paragraph 7.1153, or to the findings on the consistency of the relevant measures with respect to the treatment of MFMs.
6.43.
The complainants ask the Panel to decline the request by the European Communities to modify its recommendations in the cited paragraphs and request the Panel to delete paragraph 7,161, the final sentence of paragraph 7,267, paragraph 7.1156 and paragraphs 8.14, 8.25 and 8.37. In this last respect, the United States argues that paragraph 8.14 as written may make resolution of the dispute more difficult by conditioning the recommendation and providing no mechanism for determining which measures will be in force on the date of adoption of the reports. It asserts that the scope of recommendations would be unclear.
6.44.
The United States submits that the Interim Reports propose to make a conditional recommendation on the basis of statements by the European Communities that certain measures would be repealed. The complainants argue that the European Communities did not provide evidence confirming the repeal of these measures during the Panel proceedings, and that introduction of evidence at this stage of the proceedings is inappropriate.26 Accordingly, they argue that there is not a permissible basis for failing to make recommendations. They argue that a Panel is required to make recommendations on measures that are within its terms of reference once it has determined any WTO inconsistency, finding support for this in Article 19.1 of the DSU and various Panel and Appellate Body Reports, in particular in cases where the measure expired only after the panel was established. As a factual matter, the United States and Chinese Taipei further argue that the introduction of evidence of the repeal of the measures does not establish that the measures do not continue to have legal effect, or that EC member States do not continue to apply duties to products subject to the Panel's findings in contravention of their own WTO obligations and the repeal of the measures.
6.45.
Moreover, the United States and Chinese Taipei recall their concern that, by declining to make findings regarding EC member States, the Panel may have increased the risk that a positive resolution to the dispute will not be achieved. Specifically, the United States is concerned that the European Communities may not take steps beyond repeal of certain measures, and thus fail to deal with member States that continue to apply duties to the products despite such repeal.
6.46.
Japan questions why the matter of the repeal was not reported to the Panel earlier and, like the United States, observes that the interim review stage is not the appropriate stage to introduce new evidence.
6.49.
The Panel now turns to the issue raised by the complainants in response to the European Communities' request, namely whether the Panel may decline to make recommendations on those measures once it has concluded that they are inconsistent with the respondents' WTO obligations. The complainants refer to Article 19.1 of the DSU, which provides that "[w]here a panel or the Appellate Body concludes that a measure is inconsistent with a covered agreement, it shall recommend that the Member concerned bring the measure into conformity with that agreement" (emphasis added by the complainants in their comments). The complainants additionally refer to a series of Appellate Body and Panel reports in which panels and the Appellate Body have proceeded to make recommendations on measures within their terms of reference that were modified or expired after the panel was established.28 The United States contends that panels have declined to make recommendations only where measures had expired before the Panel was established.29
6.50.
The Panel has decided to adjust certain paragraphs of its Reports, including its recommendation pursuant to Article 19.1 of the DSU, in order to reflect more clearly the fact that, at the time of writing the Interim Reports, there was no evidence properly before the Panel that the measures in question had in fact been repealed. Accordingly, the Panel has made adjustments to paragraphs 7,161, 7,267, 7.1156, 8.14, 8.25 and 8.37, in this respect.
6.51.
The European Communities requests the Panel to review paragraph 7,191 of the Reports in their entirety and reflect differences in the scope of the complainants' claims. It submits that Japan's claims with respect to flat panel display devices are narrower than those advanced by the United States and Chinese Taipei on the basis of language appearing in paragraphs 216 of Japan's first written submission, which refers to "flat panel display devices 'for' ADP machines", as well as "LCD monitors with DVI", and those referred to in arguments of the United States and Chinese Taipei, namely in this last respect, "those devices that can display information only from an ADP machine".
6.52.
The United States submits that it is not necessary for the Panel to make changes to these sections, noting that Japan expressly stated that the scope of its claims concerning flat panel display devices was the same as that of the other parties. Japan argues that the European Communities has mischaracterized the scope of its claim concerning flat panel display devices, as it had equally done in its second written submission. Accordingly, the United States and Japan request the Panel to reject the proposal by the European Communities to modify paragraph 7,191.
6.53.
The Panel sees no distinction in the scope of Japan's claim in relation to those of the other complainants, in particular in light of statements by Japan that it considers products at issue to be those it has described and those referred to by other parties. Similar to the other complainants, Japan has referred to the language of the FPDs narrative description, as well as to language in tariff item number 8471 60 90 in the EC Schedule. In addition, similar to the other complainants, Japan has discussed certain technology in display devices, such as LCD monitors with DVI interfaces. In addition, all three complainants submitted a joint Panel request discussing identical claims and the matter before the Panel. For these reasons, the Panel sees no basis to make revisions to the Reports as requested by the European Communities.

2. Flat Panel Display Devices (FPDs)

(a) Comments by the Complainants

6.54.
The complainants request the Panel to revise paragraph 7,246 to provide as follows: "The Panel considers that, under the CN, read in conjunction with the CNEN, a display based on LCD, OLED or plasma technology... cannot be capable of connecting to other sources".
6.55.
The European Communities argues that this change is one of substance and should be rejected.
6.56.
The Panel disagrees that this change is one of substance and has made this change as it better reflects the intention of the Panel.
6.57.
The complainants request that the final sentence of paragraph 7,477 be revised for consistency, as follows: "Rather, we consider our task to be to determine whether the concession covers those products at issue, namely those that are designed for use with automatic data-processing machines (which, undisputedly, fall within the ITA)...".
6.58.
The European Communities has not commented on the complainants' request.
6.59.
The Panel has made this editorial correction for consistency.
6.60.
The complainants request the Panel to revise the concluding sentence of paragraph 7,502 as follows: "Nor do we understand them to argue that all "televisions" necessarily qualify as flat panel display devices under the concession." The complainants acknowledge that they do not claim that all display devices or monitors, such as televisions using LCD or other non-CRT technologies, necessarily fall within the meaning of the FPDs narrative description. However, they request the Panel to clarify a statement in paragraph 7,502 regarding whether televisions may qualify as flat panel display devices under the concession. The complainants argue that they have not excluded the possibility that some "televisions" might fall under the concessions, depending on the definition given to a "television".
6.61.
The European Communities submits that the complainants' request amounts to an attempt to enlarge the findings of the panel ex-post of the actual proceedings. It argues that the complainants never argued that flat panel televisions would be within the scope of the claims.
6.62.
The Panel notes that the complainants have not provided any citation to arguments that support the broader formulation requested. The complainants point out that the meaning of the term "television" was not discussed in this dispute. Accordingly, the Panel declines to modify the text.
6.63.
The complainants request the Panel to clarify its statement regarding the duty suspension in paragraph 7,744 with the following modifications: "However, Council Regulation No. 179/2009 suspends those duties for some products, and hence there is no inconsistency with Article II:1(b) to the extent the duty suspension is applied to a product covered by either concession."
6.64.
The European Communities submits that it does not understand the changes in light of the language appearing in paragraphs 7,745 of the Interim Report.
6.65.
The Panel has modified the text to clarify the distinction between when the suspension is applied (as in para. 7,744) and when it is not (as in para. 7,745).

(b) Comments by the European Communities

6.66.
The European Communities requests the Panel to review the citations in paragraphs 7,269, 7,270 et seq., and footnotes 359, 360 and 363, which it argues concern exclusively MFMs. The European Communities expresses concern that the analysis in this section is based on the existence of evidence that pertains to MFMs.
6.67.
The United States argues that the evidence relied on by the Panel is not inapplicable simply because the BTI pertains to a product other than LCD monitors. It argues that the evidence demonstrates that EC member States rely on regulations that use earlier CN numbers to classify goods under the most recent CN, supporting the conclusion that a mere change in CN numbers does not result in prior regulations losing their relevance for purposes of customs classification in the European Communities. For purposes of accuracy, the United States proposes that the Panel modify the penultimate sentence to eliminate a reference to LCD monitors, as follows: "Moreover, there is some evidence that at least in some instances national authorities continue to support their classification decisions with reference to classification measures using older CN codes".
6.68.
The Panel has taken the approach described by the United States in the proposed Interim Report. Namely, despite the fact that the BTI pertains to a product different than an LCD monitor, the Panel considers the method applied demonstrates that EC member States rely on regulations using older CN numbers despite changes in the current CN. As suggested by the United States, the Panel has modified the penultimate sentence to remove the reference to LCD monitors.
6.69.
The European Communities requests the Panel revise paragraph 7,475. The European Communities submits that it did not argue that the terms "mainly" and "only" in paragraph 7,475 should be "added" to the narrative description, but are "interpretative tools".
6.70.
The United States responds that it does not understand the Panel to have asserted in this paragraph that the European Communities argued that words should be added to the text of the concession. Rather, the United States submits that it understands the Panel to find that the position of the European Communities would require one to reads words into the text that do not appear. Therefore, it submits that the paragraph need not be revised.
6.71.
For purposes of clarity, the Panel has chaged the word "add" to read "read in", as the Panel did not mean to suggest the literal addition of terms.
6.72.
The European Communities submits that, in paragraphs 7,560 et seq., including 7,587 to 7,596, the Panel has not considered the state of technology at the time of the ITA negotiations in the context of the ordinary meaning of the relevant concessions, despite what it asserts are very clear arguments in its submissions. The European Communities requests the Panel to address these arguments.
6.73.
The United States submits that the Panel has not omitted considering arguments regarding the state of technology at the time of ITA negotiations, but instead considers and rejects the argument, in particular in paragraphs 7,589 – 7,594. It thus considers revisions unnecessary.
6.74.
The Panel has addressed what it understood to be arguments by the European Communities concerning the state of technology in the section of the report entitled "Other arguments". We note that in their submissions on flat panel display devices, unlike in their submissions for set top boxes, the European Communities did not clearly designate arguments concerning the state of technology as necessarily relating to "surrounding circumstances" or "ordinary meaning". In any event, in light of the broad nature of the terms of the concessions, the Panel concluded that the state of technology does not inform its interpretation. Accordingly, the Panel considers it has addressed the arguments of the European Communities in paragraphs 7,560 et seq.
6.75.
The European Communities requests the Panel to revise paragraph 7,614 to reflect its arguments appearing in paragraphs 100-101 and footnote 812 of its first written submission. It argues that these paragraphs do not state that "genuine ADP monitors" do not equate to "those solely used with ADPs".
6.76.
The Panel notes that the paragraphs cited by the European Communities state that the question of whether "a given multifunctional LCD monitor falls within the scope of [tariff heading 8471 60 90]" is "wholly different" from whether a "genuine ADP monitor would fall within the scope of the ordinary meaning of the heading". It continues, stating that "ADP monitors undoubtedly fall within this heading, but this says very little about whether the different kinds of multifunctional LCD monitors subject to this dispute fall within the ordinary meaning of the heading". It then states that these multifunctional monitors may be classified as video monitors or as reception apparatus for television under different headings.
6.77.
Based on this language in these paragraphs, the Panel understands the European Communities to distinguish between what it considers are "multifunctional" monitors from "genuine ADP monitors". The Panel understands the principal differentiator in the terms used by the European Communities is whether a product is multifunctional or not. A product that is not multifunctional is one that does not have multiple uses or one that is only capable of being used in one respect. As the European Communities refers to ADP machines in this context, the Panel understands the European Communities to refer to products that are not multifunctional, but those capable of being used exclusively with ADP machines.
6.78.
Nevertheless, the Panel has revised the text to paraphrase the views of the European Communities expressed in paragraphs 100-101 and footnote 812 of its first written submission.
6.79.
The European Communities requests the Panel to reflect arguments in paragraph 7,698 from paragraphs 160 to 169 in its first written submission. The European Communities submits that it has not conceded that "it would in all cases have 'placed relatively too much weight on criteria in CNEN 2008/C 133/01 in classifying these products'", referring to paragraphs 160 to 169 in its first written submission.
6.80.
The complainants have not commented on the European Communities' request.
6.81.
The Panel has revised the text to paraphrase the views of the European Communities expressed in paragraphs 167-169 of its first written submission.
6.82.
The European Communities considers that paragraph 7,710 misrepresents its position. The European Communities submits that it has not argued that LCD technology would fall outside the coverage of ITA products.
6.83.
The complainants have not commented on the European Communities' request.
6.84.
The Panel has revised the text to paraphrase the views of the European Communities expressed in paragraphs 71-76, 87, 90 of the European Communities' first written submission.
6.85.
The European Communities requests the Panel to delete the final sentence of paragraph 7,711, submitting that it misrepresents the position of the European Communities.
6.86.
The complainants have not commented on the European Communities' request.
6.87.
The Panel has revised the text to reflect the European Communities' arguments as reflected in its Response to Panel question No. 50.
6.88.
The European Communities submits that findings of violation of Article II:1(a) in paragraphs 7,757, 8.4(e), 8.5(e), 8.16(e), 8.17 (e), 8.27 (e) and 8.28(e), should be confined to the scope of the findings under Article II:1(b) of the GATT 1994 absent the duty suspension.
6.89.
The complainants observe that the Panel's findings under Article II:1(a) apply both to products subject to the duty suspension as well as to products that are not subject to the duty suspension. They accordingly reject these proposed changes.
6.90.
The Panel determined in paragraph 7,757 that a violation of Article II:1(a) results regardless of whether the duty suspension is applied. Accordingly, the Panel declines to make the proposed changes.

3. Set Top Boxes Which Have a Communication Function (STBCs)

(a) Comments by the Complainants

6.91.
The complainants request the Panel to modify language in paragraphs 7,854, 7,855, 7,882, 7,937, 7,948, 7,952, 7,977 and 7,981, discussing the features and additional characteristics of a "set top bo"x, by removing the term essential character. Specifically, the complainants request the Panel to refrain from using the term "essential character" in explaining a set top box, because this terminology is also used in the HS GIR 3(b). The complainants point to a finding by the Panel that the HS is not relevant in the context of Attachment B concessions.
6.92.
The European Communities has not commented on the complainants' request.
6.93.
The Panel has modified paragraphs 7,854, 7,855, 7,882, 7,937, 7,948, 7,952, 7,977 and 7,981 in the interim report to remove the use of the term "essential character" without changing the substance of the paragraphs.
6.94.
The complainants request the Panel to include a footnote in paragraph 7,823, citing the complainants' response to Panel question Nos. 85, 88 and 146.
6.95.
The European Communities has not commented on the complainants' request.
6.96.
The Panel has included the suggested footnote.
6.97.
The United States requests the Panel to reconsider its conclusion in paragraph 7,957 with respect to tariff line number 8528 12 91, in light of its view that it provided an adequate explanation of each of the terms in the concession for tariff line number 8528 12 91. It notes that the terms are "materially identical" to the terms used for the concession contained in Attachment B of the ITA. It further argues that the Panel's conclusions regarding the terms of Attachment B are "equally applicable" to those elements of the concession in the subheading. The United States acknowledges that this subheading refers to devices "capable of receiving televisions signals", unlike the description in Attachment B. The United States additionally contends that it has explained why the terms of heading 8528 support its interpretation of the concession for tariff line number 8528 12 91. To the extent the Panel were not to modify its conclusions, the United States requests the Panel to, at a minimum, delete the sentence stating that the United States has not addressed the interpretative issue by taking into consideration the location of the concession in the EC Schedule.
6.98.
The European Communities argues that the changes proposed by the United States would not be appropriate in light of its arguments presented throughout the proceedings.
6.99.
The Panel does not consider it appropriate to modify its conclusions that the United States has failed to meet its burden to establish a prima facie case of violation, in light of its initial consideration of arguments by the United States. The Panel has incorporated a number of textual changes to clarify its conclusions in paragraph 7,957.
6.100.
The complainants request the Panel to modify paragraph 7,990 to reflect their argument against the statement in the HSEN that ISDN, WLAN and Ethernet modems "perform a similar function but... do not modulate or demodulate signals". The complainants suggest the use of the phrase "the presence of a modem, but not including devices that it states perform a similar function but do not...".
6.101.
The European Communities has not commented on the complainants' request.
6.102.
The Panel has made this editorial change.
6.103.
Chinese Taipei notes that paragraphs 7,998 and 7,999 correctly reflect its erroneous reference to " May 2007" instead of " April 2007" and to a "favourable" opinion instead of "no opinion" in its Joint Panel Request. Chinese Taipei underlines that it did, however, correctly refer to " April 2007" and to the "no opinion" since its first written submission and that the European Communities acknowledged this in its comments on the United States' and Chinese Taipei's response to Panel question No. 154.
6.104.
The European Communities has not commented on this matter.
6.105.
The Panel confirms that Chinese Taipei is correct.

(b) Comments by the European Communities

6.106.
The European Communities requests the Panel to reconsider its summary of arguments in paragraphs 7,782-7.786, and paragraphs 7,774 to 7,778; and 7,779 to 7,780, concerning the complainants' citation of "with" and "which" in the context of discussing the STBCs narrative description. It considers the Panel's summary does not reflect the exchange between the parties. In particular, the European Communities states that a principal point it was making in its discussion was that a correct interpretation of a commitment or concession requires consideration of the correct text of the concession. It argues that the complainants' decision to replace the language "which" at times with the term "with", caused a lack of clarity with respect to what was the correct description at issue, where it was located and the meaning of the two terms. The European Communities asserts that this lack of clarity affected "the procedural situation that the [European Communities] was facing". In its view, the Panel's approach to addressing the issue obscures the real exchange between parties.
6.107.
The United States submits that it has not taken the position that terms other than those used in the text of the concession should be the basis for an analysis, in particular, as explained in paragraphs 7,783 and 7,784. It therefore request the Panel to reject the European Communities' proposal.
6.108.
The Panel understands the European Communities to assert that the manner in which the complainants described the concession for "set top boxes", including their reference to both the terms "with" and "which", as well as their discussion of the role of the EC headnote, created a due process issue. However, the Panel notes its conclusion in paragraph 7,780 that the language in the STBCs narrative description in Attachment B and that appearing in the Annex to the EC Schedule is identical, thus giving rise to identical scope (as concerns that language). In addition, in paragraph 7,787, we determined that the parties have sufficiently identified the concession in setting forth their claim pursuant to the STBCs narrative descriptions. Accordingly, the Panel does not consider that paragraphs 7,782-7.786; 7,774 to 7,778; and 7,779 to 7,780 should be adjusted.
6.109.
The European Communities argues that the Panel's summary of arguments in paragraph 7,829 and footnote 1037 seems to relate, in part, to arguments that concern flat panel display devices and not set top boxes which have a communication function.
6.110.
The United States submits that the arguments cited by the Panel pertain to the view on interpretation of the EC headnote, and are equally relevant to the STBCs narrative description under discussion. It therefore considers changes unnecessary and inappropriate.
6.111.
The Panel recognizes that the cited arguments relate, in part to arguments that concern flat panel display devices. However, as indicated by the United States, these arguments apply to the European Communities' interpretation of the EC headnote. The Panel considers these relevant to its analysis of the concession based on the STBCs narrative description, and had therefore referenced them in this paragraph. For purposes of clarity, the Panel has made editorial revisions to the language in the footnote.
6.112.
The European Communities submits that the Panel has not considered evidence in paragraph 7,872 that was presented in Exhibit EC-107 in a manner "optimal for WTO proceedings". The European Communities argues that the exhibit, which is 19 pages long, establishes that a terminal adapter used with ISDN service is not a modem, and is sometimes incorrectly considered a modem.
6.113.
The complainants have not commented on the European Communities' request.
6.114.
In the course of its deliberations in this case, the Panel considered the exhibit referred to by the European Communities. This is reflected by reference to Exhibit EC-107 in paragraph 7,872. The Panel therefore declines to make any changes.
6.115.
The European Communities submits that the Panel has not adequately considered evidence presented in paragraph 7,943 (as found in Exhibits EC-39, 40, 41 and 42) in a manner "optimal for WTO proceedings".
6.116.
The United Statesargues that the European Communities is attempting to reargue points that were already addressed by the Panel.
6.117.
The Panel has reviewed the evidence discussed by the European Communities (including each of the exhibits, which provide lists of proposed products and headings to be considered, many of which are not relevant), as reflected in paragraph 7,943. The Panel notes that this evidence was considered by the Panel in the course of its deliberations. In particular, the Panel noted the list of products referred to in the 18 October 1996 paper refer to a set top box product broadly, thereby supporting a broad interpretation. In addition, we noted no reference was made to language that was not included in the final text, and that no discussion centred on hard drive or recording features, or additional functionality. On the basis of this consideration, the Panel concluded that the European Communities did not demonstrate how or why the documents it referred to should lead to any different interpretation of the concession. The European Communities has not indicated any specific changes it wishes to be included. In light of the foregoing, the Panel declines to make any changes.
6.118.
The European Communities requests the Panel to give a more thorough assessment in paragraph 7,951 to Exhibit EC-41, a fax from Japan's MITI dated 23 October 1996. The European Communities argues that this document is actual and contemporaneous, available to ITA drafters, specifically refers to the narrative description, and refers to the products the European Communities considers to be covered by the terms of the concession based on the STBCs narrative description. It emphasizes further that this document was communicated to others. For these reasons, the European Communities asserts it is not clear why this document should not inform or influence interpretation of the concession at issue. At a minimum, the European Communities suggests that a more thorough consideration is appropriate given the importance attributed to the document by the European Communities.
6.119.
The Panel has reviewed and incorporated the referenced fax from Japan's Ministry of International Trade, dated 23 October 1996, which itself attaches a "Web TV Networks" press release, in paragraph 7,951. The Panel observes that this document confirms what was included in Exhibit EC‑38. In addition, the Panel took the evidence presented by the European Communities into consideration, weighing it against what was provided by the complainants (e.g. Exhibit US-114).
6.120.
The European Communities requests the Panel to reconsider its analysis and conclusions regarding paragraphs 7.1017 – 7.1025 and paragraph 7.1092. The European Communities rejects the analysis and conclusions in paragraphs 7.1017-7.1032 and 7.1092, arguing that the Panel did not sufficiently consider the "draft" character of the CNENs at issue. In particular, the European Communities argues that the Panel only considered the attributes of duly adopted CNENs, and not those of the draft or preparatory versions, when determining whether the "draft CNENs" are "laws, regulations, judicial decisions or administrative rulings of general application" and "measures of general application..." under Articles X:1 and X:2 of the GATT 1994. By doing so, the European Communities considers the Panel's analysis to be flawed. In its view, the Panel should have considered the draft character at all points in the analysis, and not solely in its assessment of whether the CNEN amendments were "made effective", under Article X:1, or whether the CNEN amendments were "enforced" within the meaning of Article X:2.
6.121.
The European Communities does not reject the possibility that preparatory acts which were enforced may fall within the disciplines of Articles X:1 and X:2. However, it presupposes that one would analyze such draft measures together with any relevant administrative instructions that were given, or other measures giving effect to the preparatory act. Such an approach, it argues, would allow a panel to properly consider the new attributes of the draft measures, which, in fact, would no longer be draft measures, but would be given a certain effect beyond that of a mere draft. In this case, the European Communities argues that the Panel should have taken into account the second Chairman's Statement together with the draft CNEN, in considering whether the draft constituted a "law, regulation, judicial decision [or] administrative ruling" or "measure of general application taken by any contracting party".
6.122.
The European Communities further notes that the Panel's approach contradicts the way the Panel itself refers to its findings. According to the European Communities, the Panel refers interchangeably to CNENs and to the "draft" CNEN amendments, which highlights the conceptual difficulty with the Panel's approach to the interpretation. The European Communities refers to paragraphs 7.1026, 7.1032 and 7.1092.
6.123.
The United States and Chinese Taipei request the Panel to reject the comments by the European Communities. The United Statessubmits that the European Communities is attempting to reargue points about the legal effect of the "draft" CNENs that were rejected by the Panel in paragraphs 7.1038-7.1063. For reasons described in those paragraphs, it does not consider the so-called "draft" character of the CNENs to alter its views on whether the measures in question are "laws, regulations, judicial decisions and administrative rulings." The United States suggests that the Panel insert a footnote in paragraph 7.1024 that cross-refers to paragraphs 7.1037-7.1062, noting that the issues are relevant to the matters discussed in this section. Chinese Taipeiconsiders that the Panel correctly examined whether the draft CNENs qualify as "laws, regulations, judicial decisions or administrative rulings" and "measures of general application". In its view, the draft character of the said measures does not alter the analysis. If the interpretation of the European Communities were accepted, such an approach would render Articles X:1 and X:2 of the GATT 1994 "inutile".
6.124.
The Panel considers that its analysis and findings in paragraphs 7.1017-7.1032 and paragraph 7.1092 are correct and that there is no basis for agreeing with the European Communities' request. The Panel has not concluded that all draft measures or preparatory acts would necessarily be covered by Articles X:1 and/or X:2. Instead, the Panel concluded that an analysis of the coverage of Articles X:1 and X:2 must be based primarily on the content and substance of the instrument at issue, and not merely on its form or nomenclature, such as, for example, the alleged "preparatory" character of the CNENs at issue. Put differently, the mere fact that a measure is labelled as a "draft" is not enough to preclude it from coverage under Articles X:1 and X:2. In order to assess whether the CNENs at issue are indeed "preparatory acts" – as opposed to only being labelled as "preparatory acts" – the Panel considered whether the CNENs at issue had any effect in practice, i.e., were "made effective", before their formal adoption by the Commission and publication in the EU Official Journal. Because Article X:1 also explicitly requires considering whether the "law, regulation, judicial decision or administrative ruling" at issue was made effective, the Panel considered that the alleged "preparatory" character of the CNENs at issue should be addressed separately when considering the "made effective" requirement. Had the Panel concluded that the draft CNENs at issue were true preparatory acts, with no effect until their official adoption by the Commission and publication in the EU Official Journal, the Panel would have concluded that the CNENs at issue were not covered by Article X:1. However, the Panel found that in this dispute, the CNENs at issue were made effective, even though they were labelled "draft CNEN", such that they were in fact not mere "preparatory acts". Similarly, the Panel did not consider the alleged "preparatory" nature of the CNENs at issue when considering whether the CNENs at issue are a "measure", but instead, did so when considering the requirement of "enforcement". Again, had the Panel concluded that the draft CNENs at issue were not being enforced, the Panel could not have established an Article X:2 violation.
6.125.
In addition, the Panel would note that it in fact analyzed the draft measures together with the particular constellation of facts, including relevant statements that were given by the Chairman of the Customs Code Committee, the votes on the measures taken by the Customs Code Committee, and also in light of BTIs that were issued by certain EC member States. In this respect, the Panel recalls its finding in paragraph 7.1061.
6.126.
Accordingly, the Panel declines the European Communities' request to revise its analysis or conclusions. For clarity, the Panel will include the footnote proposed by the United States in paragraph 7.1023. Finally, the Panel notes that it referred to CNENs when dealing with CNENs in general, while it referred to "CNEN amendments" when addressing the specific CNENs at issue.

4. Multifunctional Digital Machines (MFMs)

(a) Comments by the complainants

6.127.
The complainants ask the Panel to modify pargraph 7.1234 to clarify that the type of apparatus referred to in subparagraph (a) is one which can connect to an ADP.
6.128.
The European Communities has not commented on the complainants' request.
6.129.
The Panel has made the requested clarification.
6.130.
The complainants suggest that the Panel add the following language after the penultimate sentence in paragraph 7.1303:

"As we indicate in pargraph 7.1392 et seq., no MFM may properly be classified under HS 9009.12, and no other argument has been made by the EC to the effect that any MFM can be classifiable outside Chapters 84 and 85"

The complainants believe that this clarification will avoid any confusion over the way in which the Panel is using Note 3 to Section XVI as context in its discussion.

6.131.
The European Communities has not commented on the complainants' request.
6.132.
The Panel does not consider that the way the Panel is using Note 3 to Section XVI as context in its discussion of subheading 8471 60 is confusing, and indeed does not relate to its separate findings later about the scope of subheading 9009 12. However, to avoid the possibility of confusion, the Panel has added the following footnote to the penultimate sentence of that paragraph:

"We note that the only argument the European Communities has made with respect to the possible classification of MFMs outside Chapters 84 and 85 is with respect to their classification in subheading 9009 12. The Panel has dealt with whether MFMs can be classified in subheading 9009 12 in paragraphs 7.1392 et seq. below."

6.133.
The complainants suggest adding the following text at the end of paragraph 7.1392:

"In this connection, the Panel notes that in pargraph 7.1476 it finds that "the ADP MFMs at issue... cannot fall within the scope of the concession in subheading 9009 12 of the EC Schedule, regardless of the primary, secondary, or equivalent nature of the copying function vis-à-vis these machines' other functions" such as printing and scanning."

The complainants believe this will clarify the Panel's findings and avoid any confusion about what the Panel has found about the proper scope of subheading 9009 12 of the EC Schedule.

6.134.
The European Communities has not commented on the complainants' request.
6.135.
The Panel does not see any need to add clarification on this point as the Panel indicates in the immediately following paragraph that it is turning to the issue of the scope of subheading 9009 12. Given that the Panel had not yet made findings on the scope of subheading 9009 12 at that point in the Interim Reports, there can be no need to "clarify" them at that point.
6.136.
The complainants request the Panel to edit paragraph 7.1495 to clarify that the 12 pages per minute criterion in subheading 8443 31 is only relevant for determining whether an MFM with a facsimile function is subject to the complainants' request.
6.137.
The European Communities has not commented on the complainants' request.
6.138.
The Panel has made the suggested change.
6.139.
The United States also made specific requests for additional citations in particular footnotes to reflect the United States argumentation on the points referred to in those paragraphs.
6.140.
The European Communities has not commented on the United States' request.
6.141.
The Panel has inserted the additional citations.

(b) Comments by the European Communities

6.142.
The European Communities asks the Panel to delete the first sentence of paragraph 7.1299 because it argues, the Panel is incorrectly attributing to the European Communities the view that a determination pursuant to Chapter Note 5(B) should be based on actual use.
6.143.
The complainants have not commented on the European Communities' request.
6.144.
The Panel did not intend the paragraph to serve as a summary of the European Communities' arguments, but rather to reflect its own understanding of the implications of the European Communities' position. The Panel has changed the first sentence of paragraph 7.1299 to clarify that the paragraph reflects the Panel's understanding of the logical consequence of the European Communities' arguments. To further clarify, the Panel has also removed the term "actual use" from the second sentence of paragraph 7.1299.
6.145.
The European Communities notes that paragraph 7.1386 restates the Panel's conclusion set out in the first sentence of paragraph 7.1363. For "reasons of consistency" the European Communities feels it would be appropriate to restate the conclusion set out in the second sentence of paragraph 7.1363 in paragraph 7.1386 as well.
6.146.
The United States does not consider this change necessary; however, if the Panel opts to make the change requested by the European Communities, the United States requests that it insert a footnote at the end of the second sentence referencing paragraph 7.1476, as follows. "However, with regard to subheading 9009 12, see paragraph 7.1476, infra."
6.147.
The Panel has made both of the suggested changes with minor modifications. The footnote as modified reads: "However, with regard to whether MFMs fall within the scope of subheading 9009 12, see paragraph 7.1476, below."
6.148.
The European Communities asks the Panel to amend paragraph 7.1389 to reflect accurately the EC position. In particular the European Communities argues that it has never "conceded" that the "print module" is the largest component of an MFM and that it has never agreed that the way copying is achieved is through the combined use of the printer and scanner modules.
6.149.
Additionally, the European Communities states that it did not argue that

"the combination of the [printing and scanning] functions together, with the addition of the copying function, somehow creates a machine that necessarily is not of a kind principally used with an ADP machine if the copying function is equivalent or primary over the other functions."

According to the European Communities, its position is that if the copying function of an ADP MFM is equivalent to its ADP functions then it is prima facie classifiable under both headings 8471 60 and 9009 12 with the consequence that classification must be determined under GIR 3. With respect to an ADP MFM whose principal function is copying "such machine cannot be considered to be of a kind principally used with an ADP machine for the purposes of Chapter Note 5(B)."

6.150.
The complainants have not commented on the European Communities' request.
6.151.
The Panel has modified the paragraph to more precisely reflect what the European Communities' argued during the course of the proceedings.
6.152.
The European Communities requests that the Panel amend paragraph 7.1390 to accurately reflect its arguments. In particular, the European Communities recalls that it has repeatedly explained that the function of the principal component or the value of the various components in the MFM may not be dispositive for classification purposes when such components are themselves multifunctional.
6.153.
The complainants have not commented on the European Communities' request.
6.154.
The Panel first notes that although the European Communities asserts that it has repeatedly explained its position, the European Communities did not provide the Panel with any citations to its arguments on this point during the course of the proceedings. The Panel is aware that the European Communities did state in paragraphs 438-440 of its first written submission that classification of an MFM based on the classification of the component which imparts the product's essential character, pursuant to GIR 3(b), is not possible if that component is a print engine, which is itself multifunctional. However, the Panel did not say in paragraph 7.1390 that the European Communities had not explained why the function of the principal component or the value of the various components should not be dispositive for classification purposes, but rather that the European Communities had not explained why pages per minute or the other criteria listed by the ECJ in the Kip judgment were more relevant than those two factors or why the factors listed by the ECJ should be dispositive. However, to avoid any perception that the Panel has misunderstood the European Communities' arguments, we are modifying the paragraph as well as adding an additional sentence to footnote 1774 to paragraph 7.1390, which will now read:

"A focus on the function of the principal component seems more in line with Note 3 to Section XVI. We note that the European Communities has argued that if the principal component, in this case the print engine, is itself multifunctional then classification of the MFM, pursuant to GIR 3(b) based on the classification of the component which imparts the products essential character is not possible. (see European Communities' first written submission, paras. 438-440). However, the Panel is not persuaded by this argument."

6.155.
The European Communities requests that the Panel amend paragraph 7.1451 to clarify that the European Communities was not invoking the classification practice of Members as "subsequent practice" in the sense of Article 31(3) (b) of the Vienna Convention, but that pursuant to the Appellate Body rulings in EC – Computer Equipment and EC – Chicken Cuts, classification practice of Members may still be relevant under Article 32 of the Vienna Convention. Additionally, the European Communities would like the Panel to clarify that it also referred to the judgment of the ECJ in the Rank Xerox case in its arguments as well as to the classification practice of Chinese Taipei and some third countries.
6.156.
The complainants have not commented on the European Communities' request.
6.157.
The European Communities renews its position that it did not refer to the classification practice of individual Members for the purpose of establishing "subsequent practice demonstrating a common, consistent and concordant practice of members" with respect to paragraph 7.1454 as well.
6.158.
The complainants have not commented on the European Communities' request.
6.159.
The Panel notes that in section VII.G.3(a) (iv) entitled "subsequent practice" the Panel dealt extensively with the European Communities' arguments with respect to the classification practice of itself and other Members with respect to the interpretation of the ordinary meaning of subheading 8471 60, the relevant concession in this dispute. This discussion contained references to the European Communities' arguments pertaining to the Rank Xerox case and to the practice of Chinese Taipei. The Panel notes that the European Communities did not object to our referring to these types of arguments relating to the classification of the products at issue as dealing with "subsequent practice" in our interpretation of subheading 8471 60 or anywhere else in the Interim Report. Given that the European Communities referred to the classification practice of Members which was subsequent to the relevant subheadings being inscribed in the HS as support for its understanding of the scope of the subheadings, we consider that we appropriately dealt with these arguments under Article 31(3) (b) of the Vienna Convention. The Panel did make minor clarifications to paragraph 7.1451 of the Interim Report, to more precisely reflect the European Communities' arguments.
6.160.
The European Communities argues that, because it referred to the lack of agreement within the WCO as indirect evidence of the classification practice of individual Members, the discussion of the disagreement in the WCO contained in paragraph 7.1456 is best considered with the other materials on the classification practice of Members, rather than as an independent supplementary means of interpretation.
6.161.
The complainants have not commented on the European Communities' request.
6.162.
The Panel has moved the reference to the citation of discussions in the WCO from paragraph 7.1456 of the Interim Report as well as the Panel's consideration of this discussion in paragraph 7.1459, with some minor modifications, to the immediately preceding section on subsequent practice.
6.163.
The European Communities argues that the first sentence of paragraph 7.1459 suggests that there is a contradiction between the references made by the European Communities to the discussions within the WCO and the "admission" by the European Communities that there was significant disagreement among Members within the WCO. The European Communities does not propose any specific alterations in the language of the first sentence of paragraph 7.1459.
6.164.
The complainants have not commented.
6.165.
The Panel has deleted the phrase "that even the European Communities' admits" from the first sentence of paragraph 7.1459 which, as noted above, has been moved to the immediately preceding section on subsequent practice.
6.166.
The European Communities points out that the cross-reference to paragraph 7.1478 made in the first sentence of paragraph 7.1496 appears to be erroneous. Additionally, the European Communities requests that the word "certain" be inserted before the term ADP MFMs in the first sentence of the same paragraph.
6.167.
The complainants have not commented on the European Communities' request.
6.168.
The Panel has corrected the cross reference and inserted the word "certain" before ADP MFMs.

5. Other changes to the Interim Reports

6.169.
The complainants further identified a variety of typographical errors and editorial suggestions in the following paragraphs. The Panel has reviewed all of these errors and amended the text accordingly.30 The Panel has also made a number of stylistic changes that do not affect the substance of the Reports.

VII. Findings

A. Summary of the main issues for the panel's determination

7.1.
The fundamental issue for the Panel's determination in these disputes is whether a series of EC measures are inconsistent with Articles II:1(a) and (b) of the GATT 1994 because they result in less favourable treatment to imports of flat panel display devices, set top boxes which have a communication function and multifunctional digital machines ("MFMs") than that provided for these products under the European Communities' WTO Schedule (the "EC Schedule"), and because the tariff treatment provided is in excess of that provided for these products under the EC Schedule.
7.2.
The complainants argue that, pursuant to commitments made in the ITA, the European Communities is obligated to provide duty-free treatment to each of these products. Specifically, the complainants allege that certain flat panel display devices are covered by two duty-free concessions in the EC Schedule: one that is set forth in a narrative description (the "FPDs narrative description") in an Annex attached to the EC Schedule, and a second arising under tariff item number 8471 60 90 of the EC Schedule. The complainants jointly allege that certain set-top boxes which have a communication function are covered by a narrative description (the "STBCs narrative description") in the Annex to the EC Schedule, while separately, the United States alleges that certain set top boxes which have a communication function are also covered by duty-free concessions arising under tariff item numbers 8517 50 90, 8517 80 90, 8525 20 99 and 8528 12 91 of the EC Schedule. Finally, the complainants argue that certain MFMs are covered under either HS1996 subheading 8471 60 or heading 8517 21 of the EC Schedule. According to the complainants, despite these duty-free concessions, the challenged measures require that particular products that satisfy the terms of those concessions be classified under dutiable headings. The complainants argue that the application of duties to those products which they believe should be afforded duty-free treatment results in a violation of Articles II:1(a) and (b) of the GATT 1994.
7.3.
In addition to claims under Article II of the GATT 1994, the United States and Chinese Taipei, further allege that the European Communities has acted inconsistently with Articles X:1 and X:2 of the GATT 1994 by failing to publish and enforce certain EC measures related to the classification of STBCs in accordance with the requirements of those provisions.31
7.4.
The European Communities requests the Panel to reject all claims raised by the complainants. The European Communities argues that the specified measures do not require the assessment of duties in a manner inconsistent with any of the particular concessions identified by the complainants in its Schedule of concessions. The European Communities further rejects that the actions cited by the United States and Chinese Taipei are inconsistent with Articles X:1 and X:2 of the GATT 1994.

B. Background

1. The Information Technology Agreement (ITA)

7.5.
Two years following the conclusion of the Uruguay Round negotiations, during the WTO Ministerial Conference held in Singapore between 9-13 December 1996, 29 WTO Members32 and States or separate customs territories in the process of acceding to the WTO adopted the "Ministerial Declaration on Trade in Information Technology Products" ("the ITA").33
7.6.
The ITA preamble expresses the desire to "achieve maximum freedom of world trade in information technology products" and to "encourage the continued technological development of the information technology industry on a world-wide basis". Paragraph 1 of the ITA "declares" that "[e]ach party's trade regime should evolve in a manner that enhances market access opportunities for information technology products".
7.7.
In accordance with paragraph 2 of the ITA, participants to the ITA ("ITA participants") agreed to "bind and eliminate" customs duties and other duties and charges within the meaning of Article II:1(b) of the General Agreement on Tariffs and Trade 1994, through equal duty rate reductions, on "(a) all products classified (or classifiable) with Harmonized System (1996) ('HS') headings listed in Attachment A to the Annex to this Declaration"; and "(b) all products specified in Attachment B to the Annex to this Declaration, whether or not they are included in Attachment A".
7.8.
Further to paragraph 2 of the ITA, the ITA in its Annex (the "ITA Anne"x), sets forth "Modalities and Product Coverage". Specifically, paragraph1 of the ITA Annex states that:

"[E]ach participant shall incorporate the measures described in paragraph 2 of the [ITA] into its schedule to the General Agreement on Tariffs and Trade 1994, and, in addition, at either its own tariff line level or the Harmonized System (1996) ("HS") 6‑digit level in either its official tariff or any other published versions of the tariff schedule, whichever is ordinarily used by importers and exporters."

7.9.
Paragraph 2 of the ITA Annex, in its chapeau, instructs ITA participants to incorporate "the measures described in paragraph 2 of the [ITA]" in the following manner:

"[...] each participant shall provide all other participants a document containing (a) the details concerning how the appropriate duty treatment will be provided in its WTO schedule of concessions, and (b) a list of the detailed HS headings involved for products specified in Attachment B."

7.10.
Paragraph 2(b) of the ITA Annex specifies the manner in which ITA participants should modify their respective Schedules to implement the ITA, as follows:

"The modifications to its Schedule to be proposed by a participant in order to implement its binding and elimination of customs duties on information technology products shall achieve this result:

(i) in the case of the HS headings listed in Attachment A, by creating, where appropriate, sub-divisions in its Schedule at the national tariff line level; and

(ii) in the case of the products specified in Attachment B, by attaching an annex to its Schedule including all products in Attachment B, which is to specify the detailed HS headings for those products at either the national tariff line level or the HS 6-digit level.

Each participant shall promptly modify its national tariff schedule to reflect the modifications it has proposed, as soon as they have entered into effect."

7.11.
As reflected above, paragraph 2 of the ITA Annex refers to two attachments – Attachment A and Attachment B – that set forth product coverage under the ITA. A chapeau paragraph preceding these Attachments indicates that Attachment A "lists the HS headings or parts thereof to be covered", whereas Attachment B "lists specific products to be covered by an ITA wherever they are classified in the HS".34 Attachment Ais divided in two sections.Attachment A, Section 1 includes a table listing HS1996 headings (four digits) and subheadings (six digits) with their corresponding "HS descriptions", including the following HS1996 subheading at issue in this dispute:

HS96 HS description
8471 60 Input or output units, whether or not containing storage units in the same housing

7.12.
Certain headings and subheadings in Attachment A, Section 1 are "ex-outs", identified with the term "e"x, which indicates partial coverage of the corresponding HS1996 heading, i.e. only a subset of products falling within the description of the specific heading are bound to the specified duty. Attachment A, Section 2, entitled "Semiconductor manufacturing and testing equipment and parts thereof", includes a second table containing HS1996 subheadings, with corresponding "descriptions" of the covered products. Certain headings listed in this section are designated "[f]or Attachment B" in the comments column.35 Attachment B is preceded by a chapeau paragraph, which states:

"Positive list of specific products to be covered by this agreement wherever they are classified in the HS.

Where parts are specified, they are to be covered in accordance with HS Notes 2(b) to Section XVI and Chapter 90, respectively."

7.13.
Following the chapeau, Attachment B lists 13 products, including the following descriptions at issue in this dispute:

"Flat panel displays (including LCD, Electro Luminescence, Plasma and other technologies) for products falling within this agreement, and parts thereof."

"Set top boxes which have a communication function: a microprocessor-based device incorporating a modem for gaining access to the Internet, and having a function of interactive information exchange".

7.14.
In addition to modalities and product coverage, paragraph 5 of the ITA Annex directs ITA participants to consider any divergence among them in classifying information technology products, beginning with the products specified in Attachment B, in furtherance of the "common objective of achieving, where appropriate, a common classification for these products within existing HS nomenclature".36 Further, the ITA contemplates that ITA participants meet "periodically" to "review product coverage" and determine whether "Attachments should be modified to incorporate additional products".37 At the time of implementation, discussed in paragraphs 7.16-7.20 below, participants agreed to establish a Committee of Participants on the Expansion of Trade in Information Technology Products ("CITA"). Among other responsibilities, CITA is responsible for conducting consultation and review concerning the expansion of ITA product coverage as provided for in paragraph 3 of the ITA Annex and the elimination of classification divergences provided for in paragraph 5 of the ITA Annex.38
7.15.
ITA participants agreed to review participation in the ITA "no later than 1 April 1997".39 Following the review and approval, the ITA participants agreed to modify their respective schedules of concessions, including agreement to bind all tariffs on items listed in the Attachments no later than 1 July 1997 and "phase in" customs duty rate reductions beginning in 1 July 1997 and concluding "no later than 1 January 2000".40

2. Implementation of the ITA

7.16.
WTO Members commit to bind duty levels on a variety of goods. In other words, Members commit not to levy duties in excess of their bound levels on products originating from other WTO Members. Members' tariff bindings are recorded in their Schedules of concessions on goods, which are annexed to the GATT 1994 and are an integral part thereof in accordance with Article II:7 of that Agreement. The Appellate Body clarified in EC – Computer Equipment that concessions provided for in Members' Schedules are part of the terms of the treaty, in this case the GATT 1994.41 Article II:2 of the WTO Agreement further provides that the Agreements contained in the Annexes to the WTO Agreement, which includes the GATT 1994, are integral parts of the WTO Agreement.42
7.17.
In accordance with paragraph 3 of the ITA, ITA participants met in January 1997 in an effort to complete work on implementation of their ITA commitments within their particular WTO Schedules.43 Participants agreed to submit their proposed schedules of concessions no later than 1 March 1997, to be reviewed and approved by ITA participants on a consensus basis no later than 1 April 1997.44 On 26 March 1997, the ITA participants informed the Chairman of the Council for Trade in Goods of their decision to implement the ITA in their WTO Schedules.45 ITA participants then agreed to implementation following review and approval, on a consensus basis, of 25 Schedules of the original ITA participants (including the 15 EC member States separately) and a determination by the WTO Secretariat that participants to the ITA represented more than 92 per cent of world trade on information technology products.46 In the review and approval process, ITA participants agreed to amend certain narrative product descriptions in Attachment B, including the product description for FPDs at issue in this dispute.47
7.18.
In accordance with paragraph 2 of the ITA Annex and the Decision of 26 March 1980 on Procedures for Modification and Rectification of Schedules of Tariff Concessions (the "1980 Procedures"), each ITA participant submitted a proposed modification to its own Schedule for review by all WTO Members.48 Each participant's schedule was certified following a three‑month review period for that particular schedule.49
7.19.
With minor variations, most of the original ITA participants incorporated the ITA-related concessions into their WTO Schedules by: (i) consolidating in a single section of their WTO Schedules the HS1996 tariff item numbers listed under both sections of Attachment A50; (ii) listing those product descriptions from Attachment A, Section 2 that were described as "[f]or Attachment B", and all product descriptions from Attachment B in a unified, separate section or annex to their schedules51; and (iii) attaching a "staging matri"x to their respective WTO Schedules, indicating the duty reductions that would be applicable each year for each of the relevant tariff lines.52 The majority of ITA participants53 included a "headnote" in advance of listing those product descriptions from Attachment A, Section 2 that were described as "[f]or Attachment B", and product descriptions from Attachment B. As relevant to this dispute, the headnote in the EC Schedule (hereinafter the "EC headnote") provides as follows:

"With respect to any product described in or for Attachment B to the Annex to the Ministerial Declaration on Trade in Information Technology Products (WT/MIN(96) /16), to the extent not specifically provided for in this Schedule, the customs duties on such product, as well as any other duties and charges of any kind (within the meaning of Article II:1(b) of the General Agreement on Tariffs and Trade 1994) shall be bound and eliminated as set forth in paragraph 2(a) of the Annex to the Declaration, wherever the product is classified".54

7.20.
Due to the informal nature of the plurilateral technical discussions that took place during the negotiation and implementation of the ITA, there is no formal record of ITA participants' discussions on how modifications would be incorporated into Members' WTO Schedules. Almost all ITA participants included an identical or similarly worded headnote in their WTO Schedules but there is no express requirement in the ITA itself or elsewhere to do so. The origin of the idea for including a headnote as an aspect of the implementation of the ITA is not clear.

3. The EC Schedule of concessions

7.21.
The European Communities sets forth its tariff bindings in EC Schedule LXXX following the conclusion of the Uruguay Round.55 On 28 February 1996, the European Communities submitted Schedule CXL to update its tariff concessions and other commitments following enlargement of the European Communities.56 Approximately one year later, on 1 April 1997, the European Communities submitted WTO document G/MA/TAR/RS/16 proposing to implement its ITA commitments via modifications to its Schedule.57 EC Schedule CXL was not certified until 19 March 201058; however, the proposed modifications in G/MA/TAR/RS/16 were certified by the WTO Director General in WTO Document WT/Let/156 and became effective on 2 July 1997.59
7.22.
The ITA-related commitments implemented in the EC Schedule follow the format used by many ITA participants, as discussed in paragraph 7.19 above. In particular, the European Communities consolidated in a single section all the HS1996 codes appearing in both sections of Attachment A. In many cases, the European Communities introduced further sub‑divisions of its domestic nomenclature (the "Combined Nomenclature" or "CN") at the eight‑digit level.60 In addition, the European Communities attached an annex to its Schedule (the "Annex to the EC Schedule") that includes aheadnote (the "EC headnote") and a consolidated list of product descriptions from Attachment A, Section 2, labelled "[f]or Attachment B", and those descriptions from Attachment Bitself.
7.23.
The EC headnoteappears at the beginning of the first page of the Annex to the EC Schedule, as follows:

EC
26 March1997 With respect to any product described in or for Attachment B to the Annex to the Ministerial Declaration on Trade in Information Technology Products (WT/MIN(96) /16), to the extent not specifically provided for in this Schedule, the customs duties on such product, as well as any other duties and charges of any kind (within the meaning of Article II:1(b) of the General Agreement on Tariffs and Trade 1994) shall be bound and eliminated as set forth in paragraph 2(a) of the Annex to the Declaration, wherever the product is classified.

7.24.
Following the EC headnote, the Annex to the EC Schedule lists 55 product descriptions. As explained in footnote 51 above, these comprise 42 product descriptions from Attachment A, Section 2that are described with the comment "[f]or Attachment B" and 13 products descriptions listed in Attachment B. The product descriptions appear in a left-hand column, labelled "Description". A right‑hand column, labelled "HS", includes tariff item numbers at the eight-digit level next to each product description. The following is an excerpt showing the first two entries in the Annex to the EC Schedule:

Description HS
Quartz reactor tubes and holders designed for insertion into diffusion and oxidation furnaces for production ofsemiconductor wafers 70200005
Chemical vapour deposition apparatus for semiconductor production 84198920

7.25.
Of the 55 product descriptions in the Annex to the EC Schedule, 30 have only one code listed next to them, while 25 have two or more codes listed next to them. All the codes that appear in the Annex to the EC Schedule also appear in the separate, consolidated section of the EC Schedule that lists the HS1996 codes from Sections 1 and 2 of Attachment A. All these codes also appear in the "staging matri"x that appears in the EC Schedule.61 The following is an excerpt showing the first entry in the Staging Matrix to the EC Schedule:

EC
26 March 1997
ex HSBase rate July 199719981999200020012002200320042005
38180010 6.9 5.2 3.5 1.7 0.0

7.26.
The European Communities has made several modifications to its ITA-related concessions since the modifications in document WT/Let/156 became effective on 2 July 1997. For example, on 4 February 1998, the European Communities replaced all references to codes 8471 30 00, 8471 41 90, 8471 49 90, 8471 50, 8528 12 10, 8528 13 10 and 8543 89 17 with codes 8471 30 91, 8471 41 91, 8471 49 91, 8471 50 91, 8471 30 10, 8471 41 30, 8471 49 30, 8471 50 30, 8471 30 99, 8471 41 99, 8471 49 99 and 8471 50 99. The European Communities explained in WTO Document G/MA/TAR/RS/47, that "[t]he World Customs Organisation has debated the classification of multimedia personal computers and the general view, which prevailed, was that such products no matter what their principal function are to be classified within 8471". WTO document G/MA/TAR/RS/47 indicates further that "[t]he European Communities has implemented this classification opinion by transferring the products concerned, together with their accompanying rates of duty, from 8528 and 8543 to 8471".62 Each of the new headings was specified with a final duty rate of zero. References to the new codes were included in the Annex to the EC Schedulenext to the product descriptions for "Computers, etc." and "Network equipment".63 These modifications were certified by the WTO Director General in WTO Document WT/Let/261 and became effective on 10 May 1998.64
7.27.
On 22 February 2000, the European Communities circulated an amendment to its then-proposed Schedule CXL, explaining that ITA-related modifications in document G/MA/TAR/RS/16 and G/MA/TAR/RS/47 (that were certified in documents WT/Let/156 and WT/Let/261, as discussed in paragraphs 7.21 and 7.26 above, respectively) had "overtaken" those commitments proposed in Schedule CXL.65
7.28.
On 29 November 2000, the European Communities notified that it would add a reference to a new code (tariff item number 8528 12 91) next to the product description for "set-top boxes which have a communication function" as it appears in the Annex to the EC Schedule.66 The European Communities explained in WTO document G/MA/TAR/RS/74 that "the European Communities have decided to join some other ITA participants in classifying certain types of ITA set-top boxes under HS Sub-heading 8528 12".
7.29.
When EC Schedule CXL was certified on 19 March 2010 in WTO document WT/Let/66667, the WTO Director General expressly noted that certification of EC Schedule CXL was "without prejudice" to ITA-related concessions that were previously certified in documents WT/Let/156 and WT/Let/261.68 At this time, the WTO Director-General additionally certified the amendment pertaining to set-top boxes proposed in G/MA/TAR/RS/74 (discussed in paragraph 7.28) in WTO document WT/Let/667.69
7.30.
The parties to this dispute agree that the concessions contained in WTO documents WT/Let/156, WT/Let/261 and G/MA/TAR/RS/74 (now certified as document WT/Let/667) comprise those relevant to this dispute.70

4. The Harmonized System (HS)

(a) The Harmonized System

7.31.
The "Harmonized Commodity Description and Coding System" (the "HS") was established under the "International Convention on the Harmonized Commodity Description and Coding System" ("HS Convention")71, and entered into force on 1 January 1988.72
7.32.
The preamble of the HS Convention sets out the objectives of the HS including "to facilitate international trade", "to facilitate the collection, comparison and analysis of statistics", "to reduce the expense incurred by re-describing, reclassifying and recoding goods as they move from one classification system to another in the course of international trade", and "to facilitate the standardisation of trade documentation and the transmission of data".73 The HS Convention aims to achieve these objectives through the HS, which establishes an international standard for product nomenclature for more than 5,000 commodity groups, and includes approximately 1,200 headings that are grouped into 21 sections comprising 99 chapters.74 Product groups are organized systematically and each group is identified by a "heading", represented as a four-digit code. The first two digits indicate the chapter to which they correspond, while the two subsequent digits indicate the position within the heading of a particular chapter. HS headings are sometimes further divided into subheadings, which are identified by a six-digit code, which is the maximum level of disaggregation permitted by the HS. The last two digits then indicate the relevant HS subheading.75
7.33.
The HS Convention requires contracting parties to the HS to ensure that their laws are in conformity with the HS. Article 3.1(a) (i) of the HS Convention provides in particular that HS contracting parties shall use, in respect of their customs tariff and statistical nomenclatures, all the HS headings and subheadings "without addition or modification, together with their related numerical codes". Article 3.3 of the HS Convention permits HS contracting parties to create sub-divisions classifying goods beyond the six-digit level (for example, at the eight-digit level or more), provided that any such subdivision is added and coded at a level beyond that of the six-digit numerical code as it appears in the HS. The European Communities' domestic nomenclature (i.e., the CN) is an example thereof.76

(b) The HS General Rules for Interpretation ("GIRs")

7.34.
Pursuant to Article 3.1(a) (ii) of the HS Convention, each contracting party also undertakes to apply the "General Rules for the Interpretation of the Harmonized System and all the Section, Chapter and Subheading Notes, and that it shall not modify the scope of the Sections, Chapters, headings or subheadings of the HS".77 The Annex to the HS Convention sets out six general rules for the interpretation and uniform application of the HS ("GIRs"). The first five rules relate to the four-digit headings, while rule six relates to the classification in the five- or six-digit subheading. The GIRs must be applied in an hierarchical order. In other words, a contracting party should begin with the first GIR and proceed to subsequent GIRs only if necessary.78

(c) HS Explanatory Notes (HSEN) and opinions by the WCO Council

7.35.
Article 3(1) (a) (i) of the HS Convention stipulates that HS contracting parties must use all the headings and subheadings of the HS without addition or modification, together with their related numerical codes and that each contracting party must follow the numerical order of the HS. Article 6 of the HS Convention establishes the HS Committee composed of representatives from each of the Contracting Parties that meets at least twice annually. Under Article 7(1) (b) of the HS Convention, the HS Committee prepares HS Explanatory Notes (HSEN), classification opinions and other advice as guidance to secure uniformity in the interpretation of the HS. The HSEN provide guidance for interpreting the terms of a specific HS heading. Classification opinions are opinions of the HS Committee regarding the customs classification of a specific product.

(d) Amendments to the HS

7.36.
The preamble of the HS Convention recognizes as an important objective that of "ensuring that the HS is kept up-to-date in the light of changes in technology or in patterns of international trade".79 In this respect, Article 7.1(a) of the HS Convention provides that one of the functions of the HS Committee is "to propose such amendments to this Convention as may be considered desirable, having regard, in particular, to the needs of users and changes in technology or in patterns of international trade". Since its entry into force on 1 January 1988, the HS has been partially amended every four to six years. Such amendments have come into force on 1 January 1992 (HS1992), 1 January 1996 (HS1996), 1 January 2002 (HS2002) and 1 January 2007 (HS2007).80
7.37.
Amendments to the HS must be approved by the HS Committee and subsequently by the Council, the highest governing body of the World Customs Organization (WCO)81. Each of these amendments included several changes to product codes or descriptions. When a recommendation to amend the HS is approved, HS contracting parties are obliged to implement these changes in their national tariff nomenclature.82 Modifications have been partial in nature, leaving various HS headings and subheadings unchanged from one version to the next.

5. Tariff classification in the European Communities

7.38.
The following summary is intended only to aid the general understanding of the tariff classification system of the European Communities. Aspects of this system will be discussed in greater detail in sections where such discussion has relevance.

(a) The Combined Nomenclature

7.39.
The European Communities applies a common customs tariff vis-à-vis third countries. Article 20(3) of the Community Customs Code ("CCC")83 clarifies that the Customs Tariff of the European Communities comprises, inter alia, a "Combined Nomenclature" of goods (CN) and conventional duties.84 The Common Customs Tariff provides for the applicable duties.85
7.40.
The CN, which is set forth in Annex I to Council Regulation No. 2658/87, is established by the European Commission (the "Commission") and comprises: (i) the HS nomenclature; (ii) Community subdivisions to that nomenclature, referred to as "CN subheadings" and (iii) preliminary provisions, additional section or chapter notes and footnotes relating to CN headings".86 These additional section and chapter notes and footnotes are intended to further define the scope of the CN. Products are grouped in chapters, divided over sections.87 Both section and chapter notes assist in determining the customs classification of goods.88 When notes are intended to be relevant for the entire section, they are set out as section notes. When they relate only to a specific chapter, it is a chapter note. The section notes and chapter notes, if any, can be found at the beginning of each section and chapter, respectively. Annex I to Council Regulation No. 2658/87 is divided into three parts, entitled: "Part one – Preliminary provisions"; "Part two – Schedule of customs duties" and "Part three – Tariff annexes".
7.41.
"Part one — Preliminary provisions", contains two sections. Section I, entitled "General rules", includes inter alia, the General Rules for the Interpretation of the CN (CN GIRs), which are identical to those of the HS.89 Section II, entitled "Special provisions", deals with specific issues relating to goods for certain categories of ships, boats and other vessels and for drilling or production platforms; civil aircraft and goods for use in civil aircraft; pharmaceutical products; containers and packing materials; or signs, abbreviations and symbols.
7.42.
"Part two — Schedule of customs duties",contains the CN codes and conventional duties. Each CN code is an eight-digit number, reproducing the headings and subheadings of the HS up to the six-digit level, with the seventh and eighth digits being CN-specific.90 As a national nomenclature of a contracting party to the HS, the CN has the same Sections and chapters as the HS.91 The CN also reproduces all the HS Section, Chapter, and Subheading Notes without modifying their scope, with additional notes particular to the CN.92 Each CN chapter comprises a table with four columns, labelled from left to right as "CN code"; "Description"; "Conventional rate of duty (%) ", and "Supplementary unit".
7.43.
"Part three — tariff annexes" contains agricultural annexes, lists of pharmaceutical substances which qualify for duty-free treatment, information on quotas, and information on "favourable tariff treatment by reason of the nature of the goods".
7.44.
In accordance with Article 2 of Council Regulation No. 2658/87, as amended, the Commission has also established the integrated tariff of the European Communities, known as the "Taric".93 The Taric is based on the CN, with further subdivisions at the ninth- and tenth-digit levels, referred as the "Taric subheadings". These additional tariff subheadings are utilized for the implementation of specific policies, such as, for example, tariff suspensions; tariff quotas; tariff preferences (including tariff quotas and ceilings); the generalized system of tariff preferences applicable to developing countries; anti-dumping and countervailing duties; countervailing charges; agricultural components and others. The Taric is part of the Common Customs Tariff.94
7.45.
Pursuant to Article 12 of Council Regulation No. 2658/87, as amended, the Commission must publish each year, before 31 October, a consolidated version of the CN, incorporating the amendments of the past year. The consolidated version of the CN – as a Commission Regulation amending Annex I to Regulation No. 2658/87 – is published in the Official Journal of the European Union (the "EU Official Journal").95 It applies as of 1 January of the year following its official publication. To avoid confusion, the year of application is indicated. The CN2007, for example, indicates that this was the CN version applicable in 2007. The CN currently applicable as of the date of the issuance of these Reports is the CN2010.

(b) The Customs Code Committee and the EC Comitology procedure

7.46.
According to Council Regulation No. 2658/87, as amended, the Commission establishes and manages the CN and Taric.96 Article 9 of Council Regulation No. 2658/87, as amended, authorizes the Commission to adopt measures relating to the application of the CN, such as classification regulations (these are Commission Regulations) and explanatory notes to the CN ("CNEN"), in accordance with the procedure set out in Article 10 of that Regulation. Article 10 states that the Commission may adopt such measures with the assistance of the "Customs Code Committee" as per the "management procedure" in Article 4 of Council Decision 1999/468/EC (the "Comitology Decision").97
7.47.
The Customs Code Committee consists of a representative of the Commission service (as chairperson) and representatives of the governments of each EC member State. Under the "management procedure", the Commission service submits draft implementing measures related to classification to the "Comitology committee", which delivers an opinion in favour or against (or reaches "no opinion") on these draft measures by means of a vote by EC member State representatives prior to adoption by the Commission.98 The Comitology committee opinion is handled through voting by member States representatives. Article 4(2) of the Comitology Decision explains that the opinion "shall be delivered by a qualified majority of members, excluding a vote by the chairperson".99 A vote can result in three possible outcomes: (i) a qualified majority vote in favour of the proposal, i.e., a favourable opinion is reached; (ii) a qualified majority vote against the proposal, i.e., a non-favourable opinion is reached; or (iii) there is a lack of a qualified majority either in favour or against the proposal, i.e., a no-opinion result. Where either a favourable opinion or no opinion is reached, the Commission may adopt a proposed measure.100 But, if a non‑favourable opinion is rendered, the Commission must defer to the European Council, which can itself reach a different decision by a qualified majority, within three months.101 If the European Council takes no decision within this time limit, the Commission adopts the proposed measure.102
7.48.
In addition to the CNEN and Classification Regulations, Article 8 of Council Regulation No. 2658/87, as amended, also provides that "customs items" can be submitted by the Chairman of the Customs Code Committee for examination, either on his or her own initiative or at the request of a representative of an EC member State. Under this "Article 8 procedure", the Customs Code Committee functions as a "discussion forum" between the Commission and the EC member States, and not as the "Comitology Committee".103 The result of such discussion is reflected in the minutes of the meeting as an "Article 8" topic.
7.49.
Prior to each Customs Code Committee meeting, the agenda of items on which the Comitology Committee is requested to give its opinion is circulated.104 After each meeting, the minutes of the meeting are drawn up and circulated amongst the EC member States' representatives.105

(c) Interpretation of the CN

7.50.
In addition to the GIRs, the HS Section and Chapter Notes and CN additional notes discussed in paragraphs 7.40 and 7.41 above, the Commission has at its disposal a variety of tools to ensure uniform classification practice throughout the Community. These tools include (i) HSEN and Opinions; (ii) EC classification regulations; (iii) CNEN; (iv) Opinions of the Customs Code Committee in the framework of Article 8 of Council Regulation No. 2658/87; and (v) Binding Tariff Information decisions ("BTIs"). These instruments are described in more detail below.

(i) HS Explanatory Notes (HSEN) and Opinions by the HS Committee

7.51.
HSEN and Opinions by the WCO Council may also inform interpretation of the CN at the six-digit level. These are discussed in paragraph 7.35 above.

(ii) Classification Regulations

7.52.
Pursuant to Article 9(1) (a) of Council Regulation No. 2658/87, as amended, the Commission may adopt regulations on the classification of goods. Such classification regulations are adopted by the Commission in accordance with the "management procedure" discussed in paragraph 7.47 above. The Commission may in practice first submit its proposed measure as an "item submitted to the Customs Code Committee for examination under Article 8 of Regulation No. 2658/87", which may lead to amendments to the original proposal. Once the Commission considers that its proposal is finalized, it may again submit it to the Customs Code Committee for an opinion.
7.53.
Classification regulations that are published in the EU Official Journal are binding throughout the European Communities.106 In general, the preamble of a classification regulation explains that the regulation is necessary "in order to ensure uniform application of the Combined Nomenclature annexed to the said Regulation".107 In their main text, classification regulations contain a detailed description of one or several goods, provide for the applicable CN code, and give the reasons for such classification.108 However, classification regulations do not "amend" the CN.109

(iii) Explanatory Notes to the Combined Nomenclature (CNEN)

7.54.
The Commission may also issue CNEN in accordance with Article 9(1) (a) of Council Regulation No. 2658/87, as amended, for interpretation of the CN. The Court of Justice of the European Union ("European Court of Justice") has concluded that CNEN are not "legally binding", but provide "an important aid in the interpretation of the CN".110 As with classification regulations, CNEN are adopted by the Commission in accordance with the "management procedure" of the Comitology Committee discussed in paragraph 7.47 above. However, CNEN are distinct from the CN Section and Chapter notes.111

(iv) Statements of the Customs Code Committee in the framework of Article 8 of Regulation No. 2658/87

7.55.
The Statements of the Customs Code Committee in the framework of Article 8 of Regulation No. 2658/87, which are discussed in paragraph 7.48 above, may also be considered when interpreting the CN. Article 8 states that the Customs Code Committee may examine any matter referred to it by its Chairman, either on his or her own initiative or at the request of a representative of a EC member State (a) concerning the CN; (b) concerning the Taric nomenclature and any other nomenclature which is wholly or partly based on the CN or which adds any subdivisions to it, and which is established by specific Community provisions with a view to the application of tariff or other measures relating to trade in goods. In practice, the Customs Code Committee thus examines questions concerning the interpretation of Community Customs law such as, for example, tariff classification issues. The Customs Code Committee operates as a specific forum for cooperation between the EC member States and the Commission. The Customs Code Committee's opinions on questions relative to the application and interpretation of the CN are not legally binding. However, the European Court of Justice has held that such opinions constitute an important means of ensuring the uniform application of the common customs tariff by the authorities of the member States and as such can be considered as a valid aid to the interpretation of the tariff.112
7.56.
Through an online "Comitology register"113, one can access the agendas of the Customs Code Committee meetings; certain draft implementing measures; summary records of meetings and summaries of voting results. Other documents are considered confidential and access must be requested. Access, however, can be denied on certain grounds.114

(v) Binding Tariff Information (BTI)

7.57.
The European Communities also has an advance ruling system in tariff classification matters, known as the Binding Tariff Information ("BTI"). BTIs are issued by the customs authorities of the EC member States upon request by importers, in writing and free of charge, except for special costs incurred by the customs authorities for certain procedures, such as necessary laboratory analysis of the products.115 The customs authority specifies the customs classification code of the product in a BTI. BTIs are valid throughout the European Communities, regardless of their location of issuance116, and are generally valid for a period of six years.117 Article 12(5) (a) of the CCC explains, however, that BTI shall cease to be valid: (i) where a regulation is adopted and the BTI no longer conforms to this regulation118; or (ii) where a BTI is no longer compatible with the interpretation of the CN by reason of amendments to the CNEN. In both cases, BTIs can still remain valid for a three-month grace period.119
7.58.
Issued BTIs are maintained in a database (the EBTI database) that is managed by the Commission, in particular, the Directorate General for Taxation and Customs Union (DG TAXUD).120 The Commission has issued "administrative guidelines" on the EBTI and its operation in order to contribute to the harmonization of national practices in the area of Binding Tariff Information.121 The content of the EBTI database largely depends on the information transmitted by the national customs authorities. A limited version of the database is accessible to the public via the internet. This version of the EBTI lists the following information: the BTI's reference (each BTI has a unique reference that includes the International Organization for Standardization (ISO) country code, followed by a series of numbers to represent the year of issue and/or an administrative code); the issuing country; the start and end dates of validity; the nomenclature code; the classification justification (most often limited to a reference to the applicable GIR of the CN); the language of issuance; the place and date of issuance with identification of the issuing authority; a brief description of the goods; some national and/or Commission keywords; and any applicable images or illustrations.122 A more complete version of the EBTI-database is exclusively available to the Commission and issuing authorities of the member States. This version contains additional information of a confidential nature, such as the name and address of the applicant/holder, the composition of the product and its trade name and any additional information that the applicant considers confidential.123 Most BTIs submitted in this dispute were extracted from the public EBTI database.

C. General issues

1. Burden of proof

7.59.
The Panel recalls the general principles applicable to burden of proof in WTO dispute settlement, i.e., that parties claiming a violation of a provision of a covered agreement by another Member must assert and prove its claim.124 In US – Wool Shirts and Blouses the Appellate Body stated that:

"the party who asserts a fact, whether the claimant or the respondent, is responsible for providing proof thereof. Also, it is a generally-accepted canon of evidence in civil law, common law, and, in fact, in most jurisdictions, that the burden of proof rests upon the party, whether complaining or defending, who asserts the affirmative of a particular claim or defence. If that party adduces evidence sufficient to raise a presumption that what is claimed is true, the burden then shifts to the other party, who will fail unless it adduces sufficient evidence to rebut the presumption" (original footnote omitted).125

7.60.
Furthermore, in Canada – Dairy (Article 21.5 New Zealand and US II) the Appellate Body stated explicitly that:

"as a general matter, the burden of proof rests upon the complaining Member. That Member must make out a prima facie case by presenting sufficient evidence to raise a presumption in favour of its claim. If the complaining Member succeeds, the responding Member may then seek to rebut this presumption. Therefore, under the usual allocation of the burden of proof, a responding Member's measure will be treated as WTO-consistent, until sufficient evidence is presented to prove the contrary."126

7.61.
The Appellate Body has also stated that "[i]t is also well to remember that a prima facie case is one which, in the absence of effective refutation by the defending party, requires a panel, as a matter of law, to rule in favour of the complaining party presenting the prima facie case."127 The Appellate Body has said that "[a] prima faciecase must be based on 'evidence and legal argument' put forward by the complaining party in relation to each of the elements of the claim. Complaining parties may not simply submit evidence and expect the panel to divine from it a claim of WTO-inconsistency. Nor may complaining parties simply allege facts without relating them to its legal arguments."128
7.62.
The Appellate Body has also explained that "[i]n the context of the GATT 1994 and the WTO Agreement, precisely how much and precisely what kind of evidence will be required to establish such a presumption will necessarily vary from measure to measure, provision to provision, and case to case."129
7.63.
In addition, the Appellate Body in EC – Hormones established that"when that prima facie case is made, the burden of proof moves to the defending party, which must in turn counter or refute the claimed inconsistency."130 As the Appellate Body explained in Japan – Apples, the complaining party is not responsible for providing proof of all facts raised in relation to the issue of determining whether a measure is consistent with a given provision of a covered agreement. Although the complaining party bears the burden of proving its case, the responding party must prove the case it seeks to make in response.131
7.64.
In this dispute, the United States, Japan and Chinese Taipei have jointly claimed that the European Communities acted inconsistently with provisions of Articles II:1(a) and (b), and Articles X:1 and X:2 of the GATT 1994.132 The complainants thus bear the burden to demonstrate that the European Communities acted inconsistently with these provisions.

2. Treaty interpretation

7.65.
Article 3.2 of the DSU directs panels to clarify the existing provisions of the covered agreements "in accordance with customary rules of interpretation of public international law". It is well settled in WTO case law that the principles codified in Articles 31 and 32 of the Vienna Convention on the Law of Treaties ("Vienna Convention") are such customary rules.133 These provisions read as follows:

"Article 31: General rule of interpretation

1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:

any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty;

any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.

3. There shall be taken into account, together with the context:

any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;

any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;

any relevant rules of international law applicable in the relations between the parties.

4. A special meaning shall be given to a term if it is established that the parties so intended.

Article 32: Supplementary means of interpretation

Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31:

leaves the meaning ambiguous or obscure; or

leads to a result which is manifestly absurd or unreasonable."134

7.66.
We recall that the Appellate Body in EC – Computer Equipment explained that tariff concessions provided for in a Member's Schedule are part of the terms of the treaty, and, "[a]s such, the only rules which may be applied in interpreting the meaning of a concession are the general rules of treaty interpretation set out in the Vienna Convention."135
7.67.
Accordingly, the Panel shall apply these principles in interpreting the relevant provisions of the covered agreements.

D. Preliminary horizontal issues

1. The status of the complainants as third parties in this dispute

7.68.
On 23 January 2009, more than three months following the establishment of this Panel, on 23 September 2008, and one day after the composition of the Panel, on 22 January 2009, the United States, Japan and Chinese Taipei notified their interest to participate as third parties to each others' complaints.136 On 4 February 2009, at the Panel's organizational meeting, the European Communities commented on such requests and raised the issue of whether the complainants' participation as third parties to each of the other two disputes for which they are not the main party serves any "legitimate purpose", since the complainants had submitted a joint Panel request.
7.69.
On 13 February 2009, the European Communities sent an email to the Panel stating that it expected the Panel to make a ruling on the matter. On 17 February 2009, the Panel responded via a fax to the parties, asking whether the European Communities was formally requesting a preliminary ruling on the matter in accordance with paragraph 14 of the Panel's Working Procedures. In a letter dated 20 February 2009, the European Communities informed the Panel that it did not intend to request a formal ruling on the matter, but requested the Panel to "take appropriate organizational measures in the course of the proceedings in order to preserve a fair balance of procedural rights between defendant and the complainants and, more generally, to ensure due process." The European Communities expressed its particular concern that participation of the main parties as third parties could "disadvantage [it] by giving each [c]omplainant additional opportunities for arguing their own claims before the Panel, beyond those already provided" under the DSU and the Panel's Working Procedures.
7.70.
At the "open session" of the first substantive meeting with the third parties, which took place on Wednesday, 13 May 2009, the Panel reminded the complainants of the due process concerns raised by the European Communities in its 20 February 2009 letter. In that meeting, the Panel noted that the European Communities had not requested any ruling on the matter and that, according to paragraph 14 of the Working Procedures, the deadline for such a request had already passed. The Panel then gave the complainants, as third parties to each others' complaints, the opportunity to make third party statements, but reminded them that any such statements should be made bearing in mind the due process concerns raised by the European Communities in its 20 February 2009 letter. None of the complainants made any oral statements at this meeting. Subsequently, only Japan made a submission responding to Panel questions to third parties in its role as a third party; however, the European Communities has not raised any specific due process concern with Japan's responses made as a third-party.137
7.71.
The Panel will briefly consider below concerns raised by the European Communities on the participation of the main parties as third parties, as well as the complainants' notifications of their interest to participate as third parties more than ten days after the date of the establishment of the Panel. We recall, however, that the European Communities did not formally request a formal ruling by the Panel on this matter when given the opportunity to do so.

(a) The notification of interest to participate as third parties

7.72.
Article 10 of the DSU provides in relevant part:

"1.The interests of the parties to a dispute and those of other Members under a covered agreement at issue in the dispute shall be fully taken into account during the panel process.

2. Any Member having a substantial interest in a matter before a panel and having notified its interest to the DSB (referred to in this Understanding as a "third party") shall have an opportunity to be heard by the panel and to make written submissions to the panel. These submissions shall also be given to the parties to the dispute and shall be reflected in the panel report."

7.73.
Although Article 10 is silent on the period of time Members have to notify their interest to participate as third parties in a given dispute, we note the following GATT Council Chairman's Statement of June 1994 discussed notification within a ten-day period following the establishment of a panel:

"Delegations in a position to do so, should indicate their intention to participate as third party in a panel proceeding at the Council session which establishes the panel. Others who wish to indicate a third party interest should do so within the next ten days."138

7.74.
We are aware that WTO Members have on previous occasions notified their interest to participate as third parties in disputes beyond the ten days following the establishment of the panel. For example, two third-party notification requests in EC – Export Subsidies on Sugar (Australia) were submitted after that period but prior to composition of the panel pursuant to Article 8.7 of the DSU.139 The panel in that dispute recalled the Appellate Body's decision in EC – Hormones that "the DSU leaves panels a margin of discretion to deal, always in accordance with due process, with specific situations that may arise in a particular case and that are not explicitly regulated."140 That panel allowed third party participation on the basis that the notification did not adversely affect the selection and composition of the panel, nor otherwise hamper the panel process.141 In Turkey – Rice, a third party request was notified more than ten days after the establishment of the Panel, and after the panel had been composed.142 This panel allowed participation, stating:

"[S]imilarly to the relevant third party requests in EC – Export Subsidies on Sugar (Australia) , as a result of Pakistan's request, the Panel process has not been hampered. In addition, although the Panel had already been composed when Pakistan formulated its third party request, we see no reason to believe that accepting Pakistan's request would affect the "independence of the members" of this Panel, as stipulated by Article 8.2 of the DSU, nor does it seem to prejudice in any way the manner in which this Panel fulfil (sic) its functions specified in Article 11 of the DSU: '[T]o assist the DSB in discharging its responsibilities under this Understanding and the covered agreements. Accordingly, a panel should make an objective assessment of the matter before it, including an objective assessment of the facts of the case and the applicability of and conformity with the relevant covered agreements, and make such other findings as will assist the DSB in making the recommendations or in giving the rulings provided for in the covered agreements...'".143

7.75.
In the present dispute, the complainants notified their interest to participate as third parties more than three months following the establishment of this Panel, i.e., on 23 September 2008, and one day after the composition of this Panel, i.e., on 22 January 2009. Despite the length of delay and the fact that this Panel had already been composed, we see no reason why accepting the complainants' requests would affect the "independence of the members" of this Panel or otherwise hamper the Panel process. The members of this Panel had been selected taking into consideration the participation of the complainants as main parties. We do not see how the additional participation of the complainants as third parties would have compromised the initial selection of these panellists; nor has the European Communities made any such allegation. Given the foregoing, we confirm our acceptance of the complainants' request to participate as third parties to this dispute.144

(b) Multiple complainants and the joint panel request

7.76.
Article 9 of the DSU provides in relevant part:

"1.Where more than one Member requests the establishment of a panel related to the same matter, a single panel may be established to examine these complaints taking into account the rights of all Members concerned. A single panel should be established to examine such complaints whenever feasible.

2. The single panel shall organize its examination and present its findings to the DSB in such a manner that the rights which the parties to the dispute would have enjoyed had separate panels examined the complaints are in no way impaired. If one of the parties to the dispute so requests, the panel shall submit separate reports on the dispute concerned. The written submissions by each of the complainants shall be made available to the other complainants, and each complainant shall have the right to be present when any one of the other complainants presents its views to the panel."

7.77.
We additionally recall the cited provisions of Article 10 of the DSU, presented in paragraph 7.72 above.
7.78.
In the present dispute, we do not consider the fact that multiple complainants have presented a joint panel request should per se prevent parties from seeking to participate as third parties, or that the complainants' participation as third parties would not serve a "legitimate purpose". Nothing in the language of Articles 9 or 10 of the DSU limits or regulates the participation of complainants as third parties in disputes where multiple complainants present a panel request jointly.145 In fact, such participation may prove desirable for a complainant. For instance, a co-complainant that presented a joint panel request may decide to pursue, in subsequent phases of the panel proceedings, only certain claims that it had jointly included in the panel request. It is possible that a co-complainant under these circumstances would have a legitimate interest in commenting, as a third party, on the claim(s) it had decided not to pursue as a joint complainant. We consider; however, that in cases where multiple complainants present a joint panel request, and simultaneously request to participate as third parties, care should be taken to ensure protection of the due process rights of the parties. In this dispute, we have reminded the complainants of the European Communities' due process concerns, and received no specific complaint from the European Communities.

(c) Conclusions

7.79.
For all the foregoing reasons, the Panel does not consider that the co-complainants' participation as third parties to each of the two others' disputes for which they are not the main party in any way adversely affected or hampered the panel process, or otherwise impaired the due process rights of any of the parties to this dispute. The Panel therefore confirms the status of the complainants as third parties to each other's complaints.

2. The status of the EC member States as respondents in this dispute

(a) Arguments of the parties

7.80.
At the Panel's organizational meeting and in a 4 February 2009 letter addressed to the Panel, the European Communities notified the Panel that it would participate as the sole respondent in proceedings before the Panel. To the extent the Panel were to find that any of the measures specified in the joint panel request breach WTO obligations, the European Communities stated it will bear full responsibility for such breach of its Schedule.146 The European Communities submits that it has had exclusive competence with respect to all tariff matters since 1968, pursuant to Article 133 of the Treaty establishing the European Community ("EC Treaty"). It argues that the role of customs authorities of the EC member States is limited to applying measures previously enacted by the European Communities.147 Further, it argues that EC member States are required under EC law to apply the implementing measures taken by the European Communities, and are prevented from taking any remedial action on their own until the European Communities has adopted the required implementing measures to comply with any recommendation by the Panel.148 Because the complainants have only brought "as such" claims against measures enacted by the European Communities149, the European Communities argues that there is no basis to direct findings against EC member States for measures that EC member States have no power to repeal or amend.150 Therefore, the European Communities argues that addressing any recommendation to each EC member State would serve no useful purpose.
7.81.
The complainants argue for the inclusion of EC member States as respondents for several reasons. They note that EC member States are WTO Members in their own right, with their own obligations, including under Article II of the GATT 1994. In addition, they argue that both the European Communities and its member States play a role in the application of duties, generally. Therefore, both play a role in the application of duties to the products in question in this dispute. While noting that the European Communities administers the CN and has issued the regulations and CNENs at issue, the complainants argue that national customs authorities in EC member States issue BTIs, interpreting and applying those regulations and CNENs, and apply duties to the products in accordance with the relevant EC regulations and CNENs. As a systemic matter, as reflected in rulings by prior panels, such as EC – Computer Equipment151, the complainants argue that the internal legal relationship between the European Communities and its member States cannot diminish the rights of other WTO Members to exercise their rights under the WTO Agreement (including rights under the DSU). Therefore, the complainants submit, they have exercised their rights under the DSU to bring claims against the European Communities as well as the EC member States, and the terms of reference of this Panel reflect this.152

(b) Consideration by the Panel

7.82.
The issue is whether the Panel should make findings with respect to the actions of the EC member States and address recommendations to EC member States in this dispute, to the extent it finds that any of the measures at issue breach WTO obligations.
7.83.
Article 3.3 of the DSU contemplates instances "in which a Member considers that any benefits accruing to it directly or indirectly under the covered agreements are being impaired by measures taken by another Member" (emphasis added). Article 3.7 of the DSU in turn provides that "[t]he aim of the dispute settlement mechanism is to secure a positive solution to a dispute". Article 11 of the DSU provides that "a panel should make an objective assessment of the matter before it, including an objective assessment of the facts of the case and the applicability of and conformity with the relevant covered agreements, and make such other findings as will assist the DSB in making the recommendations or in giving the rulings provided for in the covered agreements".
7.84.
The Panel notes that the complainants' joint panel request is addressed to the European Communities and its member States.153 In their request, the complainants claim that both the European Communities, and its member States accord tariff treatment to certain information technology products at issue in this dispute that is inconsistent with Articles II:1(a) and II:1(b) of the GATT 1994.
7.85.
The complainants acknowledge that they have not challenged any specific prior application of duties by particular EC member States.154 However, they argue it is appropriate to directly challenge EC member States because the customs authorities of individual member States apply duties to the products in accordance with the relevant EC regulations and CNENs.
7.86.
It is not in dispute that EC member States are Members of the WTO, either as original Members or as Members that acceded to the WTO following the conclusion of the Uruguay Round.155 The European Communities does not exclude the possibility that claims of WTO inconsistency may be brought against individual EC member States. However, the European Communities argues that it should be treated as the sole respondent, and not individual member States, in this dispute. The European Communities focuses both on the fact that the complainants have limited their claims to an "as such" challenge156, and their view that the role of customs authorities of EC member States is limited to applying measures previously enacted by the European Communities. The European Communities submits that the complainants' claim addressed against these EC member States does not concern the "application" or "practice" of the EC measures at issue.157 To the extent a violation were determined, upon implementation of the Panel's recommendation by the European Communities, the European Communities attests that EC member States would be required under EC law to apply the implementing measures taken by the European Communities.158
7.87.
In accordance with Article 3.7 of the DSU, our primary objective is to secure a positive solution to the dispute. To this end, our terms of reference as set forth in paragraph 1.6above direct us "[t]o examine, in the light of the relevant provisions in the covered agreements cited by the parties to the dispute, the matter referred to the DSB by the United States, Japan and the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu in document WT/DS375/8, WT/DS376/8 and WT/DS377/6, and to make such findings as will assist the DSB in making the recommendations or in giving the rulings provided for in those agreements".
7.88.
At the outset, our focus concerns the tariff treatment provided for under the measures at issue. As noted by the complainants, the same issue arose before in EC – Computer Equipment.159 That Panel ultimately found it unnecessary to rule on claims directed against EC member States, in light of findings of inconsistency determined with respect to the measures of the European Communities.160
7.89.
In the circumstances of this case, we do not consider it necessary to determine at the outset whether to rule on the claims directed against EC member States. We note the matter in this dispute is directed towards a number of measures promulgated by the European Communities. The complainants have clarified that they are not challenging particular applications of the measures. The European Communities sought to assure the Panel that the role of customs authorities of the EC member States is limited to applying measures previously enacted by the European Communities. In the context of the claims before us, our analysis of the complainants' claims with respect to the FPDs and STBCs narrative descriptions and the alleged concession pertaining to MFMs, we will consider the extent to which the European Communities and its member States have failed to comply with obligations in the context of EC commitments set forth in the EC Schedule. To the extent the EC member States apply WTO inconsistent measures enacted by the European Communities, we consider there is a reasonable basis to conclude that they have acted inconsistently.
7.90.
Accordingly, we refrain on ruling at the outset whether findings against particular EC member States would be necessary to secure a positive solution to the dispute.

3. Order of analysis for the complainants' claims under Articles II and X of the GATT 1994

(a) Arguments of the parties

7.91.
The United States requests the Panel to begin its analysis with those claims concerning the concessions that appear in the Annex to the EC Schedule. The United States considers it practical and logical to begin with these concessions as they originate from Attachment B of the ITA, which uses general terminology that "often span multiple tariff subheadings"161. Furthermore, it submits that the language in the EC headnote162or the ITA does not specify a particular order of analysis. Chinese Taipei similarly requests the Panel to begin with an analysis of the claims made in connection with the Annex to the EC Schedule, arguing that, if a product falls within the concessions made pursuant to Attachment B, it is no longer necessary to look at specific Attachment A concessions.163Japansubmits that the two claims are legally independent and has not requested the Panel to follow a particular order of analysis.164 However, Japan requests the Panel to refrain from practising judicial economy with respect to its claims in relation to headings/subheadings listed in Attachment A and B, as reflected in the EC Schedule.165 The complainants have not requested the Panel to follow a particular order of analysis with respect to their claims in connection with MFMs, under Articles II:1(a) and (b) of the GATT 1994, or any order of analysis as concerns Articles X:1 and X:2 of the GATT 1994166.
7.92.
The European Communities argues that it does not see any "added value" in the complainants claims concerning the FPDs narrative description that appears in the Annex to the EC Schedule, in light of the complainants' separate claims under tariff subheading 8471 60 90, which is one of the codes listed next to the narrative description in the Annex to the EC Schedule.167 While responding to the complainants' arguments concerning the STBCs narrative description, the European Communities submits that it does not understand what the United States means through its identification of "the commitment to provide duty-free treatment for set top boxes meeting the description contained in the four individual tariff linesin the EC Schedule..., HS96 8528 12 91 in particular".168 Further, it notes that the other complainants have not identified the tariff lines as a separate concession.169 The European Communities does not address whether a particular order of analysis should be followed with respect to the complainants' MFM claims. It also does not consider that there is a legal requirement in Article X to adopt a particular order of analysis for Articles X:1 and X:2 of the GATT 1994.170

(b) Consideration by the Panel

7.93.
The Panel notes the parties' views regarding the correct order of analysis that the Panel should follow, as set forth in the summary of their views above.