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Complaint by the United States - Report of the Panel

TABLE OF CASES CITED IN THIS REPORT

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
Australia – Salmon Appellate Body Report, Australia – Measures Affecting Importation of Salmon, WT/DS18/AB/R, adopted 6 November 1998, DSR 1998:VIII, 3327
Belgium – Family Allowances GATT Panel Report, Income Tax Practices Maintained by Belgium, adopted 7 December 1981, BISD 23S/127 and 28S/114
Brazil – Aircraft Appellate Body Report, Brazil – Export Financing Programme for Aircraft, WT/DS46/AB/R, adopted 20 August 1999, DSR 1999:III, 1161
Canada – Patent Term Appellate Body Report, Canada – Term of Patent Protection, WT/DS170/AB/R, adopted 12 October 2000, DSR 2000:X, 5093
Canada – Periodicals Appellate Body Report, Canada – Certain Measures Concerning Periodicals, WT/DS31/AB/R, adopted 30 July 1997, DSR 1997:I, 449
Canada – Pharmaceutical Patents Panel Report, Canada – Patent Protection of Pharmaceutical Products, WT/DS114/R, adopted 7 April 2000, DSR 2000:V, 2289
EC – Asbestos Appellate Body Report, European Communities – Measures Affecting Asbestos and Asbestos-Containing Products, WT/DS135/AB/R, adopted 5 April 2001, DSR 2001:VII, 3243
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 the Appellate Body Report, WT/DS27/AB/R, DSR 1997:II, 943
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 – Sardines Appellate Body Report, European Communities – Trade Description of Sardines, WT/DS231/AB/R, adopted 23 October 2002
EC – Tariff Preferences Appellate Body Report, European Communities – Conditions for the Granting of Tariff Preferences to Developing Countries, WT/DS246/AB/R, adopted 20 April 2004.
EEC – Parts and Components GATT Panel Report, European Economic Community – Regulation on Imports of Parts and Components, adopted 16 May 1990, BISD 37S/132
India – Patents (US) Appellate Body Report, India – Patent Protection for Pharmaceutical and Agricultural Chemical Products, WT/DS50/AB/R, adopted 16 January 1998, 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 the Appellate Body Report, WT/DS50/AB/R, DSR 1998:I, 41
India – Patents (EC) Panel Report, India – Patent Protection for Pharmaceutical and Agricultural Chemical Products – Complaint by the European Communities, WT/DS79/R, adopted 22 September 1998, DSR 1998:VI, 2661
Indonesia – Autos Panel Report, Indonesia – Certain Measures Affecting the Automobile Industry, WT/DS54/R, WT/DS55/R, WT/DS59/R, WT/DS64/R and Corr.1, 2, 3, and 4, adopted 23 July 1998, DSR 1998:VI, 2201
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 November 1996, DSR 1996:I, 97
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 – 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 January 2001, as modified by the Appellate Body Report, WT/DS161/AB/R, WT/DS169/AB/R, DSR 2001:I, 59
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
Turkey – Textiles Panel Report, Turkey – Restrictions on Imports of Textile and Clothing Products, WT/DS34/R, adopted 19 November 1999, as modified by the Appellate Body Report, WT/DS34/AB/R, DSR 1999:VI, 2363
US – 1916 Act Appellate Body Report, United States – Anti-Dumping Act of 1916, WT/DS136/AB/R, WT/DS162/AB/R, adopted 26 September 2000, DSR 2000:X, 4793
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
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 – 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
US – FSC (Article 21.5 – EC) Appellate Body Report, United States – Tax Treatment for "Foreign Sales Corporations" – Recourse to Article 21.5 of the DSU by the European Communities, WT/DS108/AB/RW, adopted 29 January 2002
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 – Section 110(5) Copyright Act Panel Report, United States – Section 110(5) of the US Copyright Act, WT/DS160/R, adopted 27 July 2000, DSR 2000:VIII, 3769
US – Section 211 Appropriations Act Appellate Body Report, United States – Section 211 Omnibus Appropriations Act of 1998, WT/DS176/AB/R, adopted 1 February 2002
US – Section 301 Trade Act Panel Report, United States – Sections 301-310 of the Trade Act of 1974, WT/DS152/R, adopted 27 January 2000, DSR 2000:II, 815
US – Section 337 GATT Panel Report, United States Section 337 of the Tariff Act of 1930, adopted 7 November 1989, BISD 36S/345
US – Tobacco GATT Panel Report, United States Measures Affecting the Importation, Internal Sale and Use of Tobacco, adopted 4 October 1994, BISD 41S/I/131

I. INTRODUCTION

1.1.
On 1 June 1999, the United States requested consultations1 with the European Communities pursuant to Article 4 of the Understanding on Rules and Procedures Governing the Settlement of Disputes ("DSU") and Article 64 of the Agreement on Trade-Related Aspects of Intellectual Property Rights ("TRIPS Agreement") (to the extent that it incorporates by reference Article XXIII of the General Agreement on Tariffs and Trade 1994 ("GATT 1994") regarding EC Council Regulation (EEC) No. 2081/92 of 14 July 1992 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs, as amended. The United States and the European Communities held consultations on 9 July 1999, and thereafter, but these consultations failed to resolve the dispute.
1.2.
On 4 April 2003, the United States supplemented its earlier request with a request for additional consultations2 with the European Communities pursuant to Article 4 of the DSU, Article 64 of the TRIPS Agreement and Article XXII of the GATT 1994, regarding the protection of trademarks and geographical indications for agricultural products and foodstuffs in the European Communities pursuant to Regulation 2081/92, as amended, and its related implementing and enforcement measures ("Regulation 2081/92"). The United States and the European Communities held consultations pursuant to this supplemental request on 27 May 2003, but these consultations also failed to resolve the dispute.
1.3.
On 18 August 2003, the United States requested the Dispute Settlement Body ("DSB") to establish a panel with standard terms of reference as set out in Article 7.1 of the DSU.3 At its meeting on 2 October 2003, the DSB established a single Panel pursuant to the requests of the United States in document WT/DS174/20 and Australia in document WT/DS290/18, in accordance with Article 9 of the DSU (WT/DSB/M/156)4. At that meeting, the parties to the dispute also agreed that the Panel should have standard terms of reference. The terms of reference are, therefore, the following:

"To examine, in the light of the relevant provisions of the covered agreements cited by the United States in document WT/DS174/20 and Australia in document WT/DS290/18, the matter referred to the DSB by the United States and Australia in those documents, and to make such findings as will assist the DSB in making the recommendations or in giving the rulings provided for in those agreements."

1.4.
On 13 February 2004, the United States and Australia requested the Director-General to determine the composition of the Panel, pursuant to paragraph 7 of Article 8 of the DSU.
1.5.
On 23 February 2004, the Director-General accordingly composed the Panel as follows:

Chair: Mr Miguel Rodríguez Mendoza

Members: Prof. Seung Wha Chang

Mr Peter Kam-fai Cheung

1.6.
Argentina, Australia (in respect of the United States' complaint), Brazil, Canada, China, Colombia, Guatemala, India, Mexico, New Zealand, the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu (hereinafter referred to as "Chinese Taipei"), Turkey and the United States (in respect of Australia's complaint) reserved their rights to participate in the Panel proceedings as third parties.
1.7.
The Panel met with the parties on 23-24 June 2004 and on 11-12 August 2004. It met with the third parties on 24 June 2004.
1.8.
The Panel submitted its interim report to the parties on 16 November 2004. The Panel submitted its final report to the parties on 21 December 2004.

II. FACTUAL ASPECTS

A. MEASURES AT ISSUE

2.1.
The measures at issue in this dispute are identified in the United States' request for establishment of a panel as Council Regulation (EEC) No. 2081/92 of 14 July 1992 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs, as amended, and its related implementing and enforcement measures.

B. PROCEDURAL HISTORY

1. Preliminary ruling prior to the first written submissions

2.2.
On 24 February 2004, the day after the Panel was composed and prior to the organizational meeting, the European Communities requested that the Panel issue a preliminary ruling that the United States' and Australia's respective requests for establishment of a panel were inconsistent with the requirements of Article 6.2 of the DSU. The European Communities considered it appropriate that the Panel issue a preliminary ruling before the first written submissions of the parties were due.
2.3.
At the organizational meeting, the Panel sought the parties' views on appropriate procedures to deal with this request. The complainants did not object to filing written responses to the request for a preliminary ruling prior to their first written submissions but requested additional time for the filing of their first written submissions.
2.4.
On 8 March 2004, the Panel adopted its working procedures and timetable, which indicated a date for the United States and Australia to file written responses to the European Communities' request for a preliminary ruling. They submitted their responses accordingly.
2.5.
On 5 April 2004, the Panel issued a preliminary ruling, which is set out in full in Section VII:A of this report.
2.6.
On 20 April 2004, the European Communities sent a letter to the Panel expressing its regret at the Panel's ruling and "reserving its right to raise issues of law regarding the interpretation of Article 6.2 of the DSU before the Appellate Body". In its letter, the European Communities asked the Panel to clarify the status of its preliminary ruling of 5 April 2004, in particular whether such ruling would be incorporated into the Panel's final reports and whether the findings contained in the ruling would be an integral part of the final reports.
2.7.
On 23 April 2004, the Panel responded to the European Communities, advising that its preliminary ruling would be reflected in the Panel's final reports, as appropriate.
2.8.
On 26 April 2004, the European Communities sent a second letter to the Panel indicating that it had understood from the Panel's previous response that the findings contained in the preliminary ruling of 5 April 2004 would be incorporated into the Panel's final reports and could, therefore, be appealed in the same way as any legal interpretation contained in these reports.
2.9.
On 28 April 2004, the Panel responded again to the European Communities, advising that it had taken note of the European Communities' letter of 26 April 2004 and reiterating that its preliminary ruling would be reflected in its final reports, as appropriate.

2. Request for extension of time

2.10.
On 9 March 2004, the European Communities requested that the Panel extend the period for it to submit its first written submission in view of the circumstances that (a) there were two cases brought by two complainants; (b) these cases did not appear to contain identical claims; and (c) these cases raised new and complex issues and involved a large number of claims. It also alleged that the timetable was unbalanced in favour of the complainants.
2.11.
On 16 March 2004, the United States and Australia each responded to the European Communities' request, disagreeing with its assertions but not objecting to an extension of the period for the European Communities to submit its first written submission, provided that such extension would not affect the timeframe structure of the remainder of the timetable.
2.12.
On 22 March 2004, the Panel revised its timetable, extending the time for the submission of the respondent's first written submission, without affecting the time between any of the subsequent steps as established in the original timetable.

3. Request for separate reports

2.13.
On 3 March 2004, after the conclusion of the Panel's organizational meeting, the European Communities filed a request pursuant to Article 9.2 of the DSU that the Panel submit separate reports on the present dispute. On 8 March 2004 the Panel acknowledged receipt of such request. The complainants did not comment on this request.
2.14.
On 23 April 2004, the Panel informed the parties that it would submit separate reports on this dispute, as requested by the European Communities.
2.15.
At the second substantive meeting with the parties on 11-12 August 2004, the Panel invited the parties to comment on the way in which the Panel should submit separate reports. The Panel took note of the parties' views and confirmed the following facts: (a) the complainants have made similar, but not identical claims in this dispute; (b) the complainants have made separate written submissions and separate oral statements and submitted separate responses to questions, although they did submit 16 common exhibits with their respective first written submissions; (c) the complainants have not collectively endorsed the arguments made in one another's submissions although Australia, in its first oral statement, expressly endorsed certain comments made by the United States5, and the United States, on occasions, cited information and arguments submitted by Australia in support of its arguments; and (d) although each complainant reserved its right to participate in the Panel proceedings as a third party in respect of the other's complaint, they did not exercise these rights. They both declined the opportunity given to them by the Panel to make a statement as a third party during the session with the third parties.

4. Request for factual information from the International Bureau of WIPO

2.16.
On 9 July 2004, the Panel sent a letter to the International Bureau of WIPO requesting its assistance in the form of any factual information available to it relevant to the interpretation of certain provisions of the Paris Convention for the Protection of Industrial Property.6 The parties were given the opportunity to comment.
2.17.
The International Bureau's reply was received by the Panel and the WTO Secretariat on 14 September 2004. The Panel gave the parties an opportunity to submit comments on the reply by 28 September 2004. The parties submitted their comments accordingly.7
2.18.
The factual information provided by the International Bureau consists of a note it prepared and five annexes containing excerpts from the Official Records of the various Diplomatic Conferences which adopted, amended or revised the provisions currently contained in Articles 2 and 3 of the Paris Convention (Stockholm Act of 1967)8.

III. PARTIES' REQUESTS FOR FINDINGS AND RECOMMENDATIONS

A. UNITED STATES

3.1.
The United States requests that the Panel find that the measures at issue are inconsistent with the European Communities' obligations under:

(a) Articles 1.1, 3.1, 4, 16.1, 22.2, 41.1, 41.2, 41.4, 42, 44.1 and 65.1 of the TRIPS Agreement and, through its incorporation by Article 2.1 of the TRIPS Agreement, Article 2 of the Paris Convention (1967); and

(b) Articles I:1 and III:4 of GATT 1994.

3.2.
The United States requests that the Panel recommend that the European Communities bring its measures into conformity with its obligations under the TRIPS Agreement and GATT 1994.

B. EUROPEAN COMMUNITIES

3.3.
The European Communities requests that the Panel:

(a) find that certain measures not yet adopted at the time the Panel was established, and the United States' claim under Article 2(2) of the Paris Convention (incorporated by Article 2.1 of the TRIPS Agreement), are outside the Panel's terms of reference; and

(b) reject all claims within the Panel's terms of reference.

IV. ARGUMENTS OF THE PARTIES

4.1.
The arguments of the European Communities and the United States, as set out in their respective submissions (European Communities' request for a preliminary ruling, United States response to the European Communities' request for a preliminary ruling, first written submissions, written rebuttals, oral statements, responses to questions; comments on each other's responses; and comments on the factual information from the International Bureau of WIPO), are attached as Annexes A and B.

V. ARGUMENTS OF THE THIRD PARTIES

5.1.
The arguments of those third parties that made submissions to the Panel (first written submissions, oral statements and/or responses to questions) are summarized and attached as Annex C.

VI. INTERIM REVIEW

6.1.
On 16 November 2004, the Panel submitted its interim report to the parties. On 30 November 2004, the United States and the European Communities submitted written requests for review of precise aspects of the interim report. On 7 December 2004, the United States and the European Communities submitted written comments on each other's request for interim review.
6.2.
The Panel has modified aspects of its report in light of the parties' comments where it considered appropriate, as explained below. The Panel has also made certain revisions and technical corrections for the purposes of clarity and accuracy. References to paragraph numbers and footnotes in this Section VI refer to those in the interim report, except as otherwise noted.

Incorporation of arguments by co-complainant

6.3.
The United Statesrequests that the interim report reflect the fact that the United States incorporated information and arguments put forward by Australia with respect to the issue whether the conditions of equivalence and reciprocity apply to WTO Members, citing two references in its submissions and paragraph 2.15.
6.4.
The Panel has noted these two particular references in footnote 73 and also corrected paragraph 2.15 of the final report.

Further comments on preliminary ruling

6.5.
The European Communities requests the deletion of paragraphs 7.3 to 7.8 as the conformity of a panel request with Article 6.2 of the DSU must be evaluated on the face of the panel request. In its view, references to discussions that take place in other fora, like those in the Council for TRIPS, are irrelevant for this purpose. The same reasoning applies to the letter from Commissioner Lamy to the USTR, which was only provided by the United States at the second substantive meeting. If it were of any relevance to Article 6.2, it could have been expected that the United States would have referred to it in its response to the request for a preliminary ruling, but it did not. Moreover, the letter is irrelevant for this question as it did not form part of the dispute settlement process.
6.6.
The United Statesopposes this request. It believes that the preliminary ruling of 5 April 2004 stands on its own merits. But it also fails to see on what basis the European Communities objects to the Panel's description of facts confirming that, at the time of the panel request, the European Communities was aware of the legal basis for the panel request and that the summary of the legal basis of the compliant in that request was sufficient to present the problem clearly.
6.7.
The Panel recalls that the European Communities made a request for a preliminary ruling the day after the Panel was composed in which it alleged defects in the panel request and submitted that it was appropriate that the Panel issue a preliminary ruling before the first written submissions of the parties were due. The Panel issued a preliminary ruling accordingly, in which it found that those allegations were unfounded on the face of the panel request and on the basis of the facts available to it at that time. That preliminary ruling sets out part of the basic rationale for the Panel's findings and recommendation in this dispute. Accordingly, in the course of making an objective assessment of the facts, the Panel does not disregard probative evidence relevant to that ruling submitted later in the course of the proceeding, other than the references to what took place during the consultations, which were without prejudice to the rights of the European Communities and other parties in these proceedings, in accordance with Article 4.6 of the DSU. The Panel has modified the relevant paragraphs, numbered 7.3 to 7.13 of the final report, to elaborate on the reasons for their inclusion. The relevance of the letter from Commissioner Lamy is discussed below.

Letter from Commissioner Lamy

6.8.
The European Communities requests the deletion of paragraph 7.79 as the letter from Commissioner Lamy to the USTR was provided only at the second substantive meeting and "the European Communities has had very little occasion so far to comment on this letter". Moreover, it was written in the context of the Doha Round negotiations and largely addresses questions relating to those negotiations. Even to the extent that it pronounces itself on certain aspects of the Regulation, it does not constitute an authoritative explanation of EC law and therefore does not form a sufficient basis for the Panel's findings regarding the content of the Regulation.
6.9.
The United Statesopposes this request. Part of the issue before the Panel was the Commission's interpretation of whether the Regulation imposes equivalence and reciprocity conditions on WTO Members. A direct communication that it does, sent from the EC Trade Commissioner to the US Trade Representative, is plainly relevant. This is particularly true given that the European Communities had denied that its position on the issue had changed from that which it held prior to the dispute. In addition, the Panel cites the letter in a single sentence as further corroboration of a thorough Panel analysis. The United States recalls the European Communities' response to Panel question No. 15 that its own statements to the Panel regarding EC law are not authoritative explanations either so, under the European Communities' reasoning in its request for interim review, the Panel should also consider such statements to be irrelevant.
6.10.
The Panel observes that the European Communities has taken the opportunity to comment on the letter in its request for interim review, and the Panel takes note of those comments. A full copy of the letter and its attachment was provided at the second substantive meeting. The European Communities had an opportunity to comment on the letter at that meeting and in its response to question No. 95, which specifically related to "any official statement by the Commission" as well as in its responses to six other questions relevant to the applicability of the equivalence and reciprocity conditions.
6.11.
The Panel has already noted in the relevant paragraph that the letter provides further corroboration of the Panel's interpretation, so that it does not form the basis of any findings on its own. The letter is relevant for the following reasons: (a) it is from a member of the European Commission responsible for trade matters to the United States Trade Representative; (b) it states that the attachment contains a detailed analysis that covers certification marks vis-à-vis Doha Round issues "as well as a reply to [the USTR's] comments on EC Regulation 2081/92"; (c) the attachment specifically responds to the national treatment claim that is the subject of the Panel's examination in Section VII:B.1 of this report; and (d) it is recent. Therefore, the Panel has retained the paragraph, numbered 7.82 in the final report.
6.12.
The Panel has also referred to Commissioner Lamy's letter in paragraph 7,733, as evidence in support of the European Communities' position under Article 22.2 of the TRIPS Agreement. The European Communities did not request review of that paragraph, which is numbered 7,750 in the final report, and the Panel has retained it also.

The phrase "[w]ithout prejudice to international agreements"

6.13.
The European Communities requests the deletion of paragraphs 7.85 to 7.90 because it did not argue that the application of Article 12 of the Regulation would prejudice "the EC's obligations under the TRIPS Agreement". It quotes paragraph 66 of its first written submission and paragraph 43 of its first oral statement and asserts that "[t]hese statements do not contain any indication that the EC consider that its obligations under the TRIPS Agreement would be prejudiced by the application of Article 12 of Regulation 2081/92. Rather, the reference to the obligation to provide protection for geographical indications was clearly intended as a reference to the obligation of other WTO Members to provide protection. This is also what the EC explained in response to the Panel's Question No. 94(b)." The European Communities agrees that it is true that it did not provide an explicit response to Panel question No. 20 but it asserts that it did, however, address this point in response to Panel question No. 94, in which it clarified that whereas the application of these conditions would not prejudice the European Communities' national treatment obligations under the TRIPS Agreement, it would prejudice its national treatment obligations under the GATT. Given this context, it comments that the Panel is wrong to read into the European Communities' submission a statement which the European Communities clearly did not make, and which contradicts the entire logic of the European Communities' submissions. In its view, by attempting to read admissions into the European Communities' submissions, the Panel effectively distorts these submissions. This is not compatible with the task of the Panel under Article 11 of the DSU, which is to make an objective assessment of the facts. The European Communities also requests the deletion of paragraph 7,200 for the same reason and because it is unnecessary to the legal analysis which precedes it.
6.14.
The United Statesexpresses surprise and disappointment that the European Communities would suggest that the Panel's assessment of the facts is non-objective, simply because the Panel has noted accurately the inconsistencies in the positions taken by the European Communities over the course of this dispute. The European Communities' sole basis for the deletion of six full paragraphs of Panel analysis is its disagreement with one part of one sentence in paragraph 7.86. The Panel's summary on this point is accurate, objective and fair and therefore the paragraphs should be retained. The United States notes that the European Communities admits that it avoided answering Panel question No. 20 but apparently seeks credit for answering Panel question No. 94. The United States recalls that the Panel has already made note of this response in paragraph 7.88.
6.15.
The Panel takes note of the parties' comments and has carefully reviewed the European Communities' submissions, statements and responses to questions in this dispute, and confirms the following facts: (a) the interim report is consistent with the European Communities' own detailed analysis of the phrase "[w]ithout prejudice to international agreements" in its rebuttal submission; and (b) the European Communities repeatedly emphasized the importance of its own obligations in the interpretation of the equivalence and reciprocity conditions but there is no clear explanation on the record of this dispute as to how the obligations of other WTO Members would render the equivalence and reciprocity conditions under the European Communities' own Regulation inapplicable and the Panel declines to speculate. Therefore, the Panel has expanded and revised, rather than deleted, the relevant paragraphs, numbered 7.89 to 7.96 in the final report, and deleted paragraph 7,200 without affecting the preceding legal analysis.
6.16.
The Panel takes note that, although the European Communities has now requested the deletion of most consideration of its own arguments concerning the phrase "[w]ithout prejudice to international agreements", this point is important to its defence and those arguments have not been withdrawn. Therefore, the Panel considers it important to address them as part of its objective assessment of the matter before it, in accordance with its function under Article 11 of the DSU.

Examination of applications for registration

6.17.
The European Communities requests the amendment of paragraph 7,262(b) to take account of the requirement in Article 12a(2)(a) of the Regulation that a third country must also transmit "a description of the legal provisions and the usage on the basis of which the designation of origin or the geographical indication is protected or established in the country", which is a question of the law of the third country, not Community law. It also comments that paragraph 7,272 should explain how the European Communities can implement Article 24.9 of the TRIPS Agreement with respect to such questions of foreign law, taking into account that the complainants have stated that such questions can be of high complexity and have indicated their unwillingness or inability to cooperate on such issues.
6.18.
The United Statesconsiders that paragraph 7,262 should not be amended. The requirement that the European Communities wants to add is already described in the third step in that paragraph, which sets out the different requirements for third countries. The United States considers that the Panel's logical description would become "muddied" and confusing if part of the third step were collapsed into the second step. The United States also considers that the Panel should decline to offer further recommendations as to how the European Communities should implement Article 24.9 of the TRIPS Agreement as the Panel's task is not to recommend how to implement provisions not part of its terms of reference. The United States also disagrees that it has indicated its unwillingness or inability to cooperate: it has challenged mandatory unilateral requirements, which is not a request for co-operation.
6.19.
The Panel takes note of the European Communities' request and notes that the description of protection in the country of origin is already included in paragraph 7,262, numbered 7,268 in the final report, which is the logical place for it. The Panel considers it inappropriate to make further findings in this paragraph. The Panel's findings on transmission of applications already apply to all accompanying documents, including the description of protection in the country of origin. Further, this is an "as such" claim but Article 12a(2)(a) of the Regulation does not specify what form of description of protection in the country of origin would be acceptable, nor is there conclusive evidence on this point. In any event, Article 62 of the TRIPS Agreement would appear to be important in framing any recommendation on implementation, but it lies outside the Panel's terms of reference, as explained in paragraph 7,279 of the final report.
6.20.
The Panel has also replaced the word "verification" in relation to applications for registration later in the report in order to be consistent with the use of the word "examination" used in the description of the application procedures and the consideration of the national treatment claim under the TRIPS Agreement. This does not imply that verification in the course of examination of applications is not covered by the Panel's conclusions with respect to examination.

Article XX(d) of GATT 1994

6.21.
The United Statessuggested amendments to paragraphs 7,289 and 7,431 for clarity and accuracy concerning the alleged "laws and regulations not inconsistent with this Agreement" within the meaning of Article XX(d) of GATT 1994.
6.22.
The European Communities responds that part of the drafting suggestion does not correctly represent its arguments and refers to its response to question No. 135(c) from the Panel. It requests that this argument be fully reflected in paragraph 7,289.
6.23.
The Panel partly modified the paragraphs, numbered 7,297 and 7,446 in the final report, and reflected the arguments in the European Communities' responses to Panel questions Nos. 135(a), (b), (c) and (d) and addressed those arguments.

Standard for private inspection bodies

6.24.
The United States suggests the deletion from paragraph 7,405 of the phrase "the standard specified in the Regulation is based on an international standard" because this is a legal conclusion that must be based on a thorough analysis and which can have significant legal consequences, for instance, under Article 2.4 of the TBT Agreement and Article 3.1 of the SPS Agreement.
6.25.
The European Communities opposes this suggestion because it was entirely appropriate for the Panel to consider whether the Regulation's requirements were based on an international standard, the United States did not make any claim under the TBT Agreement, and the United States never indicated prior to interim review that the ISO/IEC Guide at issue was not a relevant international standard, or that it saw any problems of substance with the content of this Guide.
6.26.
The Panel does not take any view on whether the relevant ISO/IEC Guide is an international standard for the purposes of the TBT Agreement or the SPS Agreement and, for the avoidance of doubt, has amended paragraph 7,417 of the final report, based on its factual observations earlier in that sub-section.

Marks of origin

6.27.
The European Communities requests the deletion of point (b) of paragraph 7,496, with which it does not agree. The use of the words "made in" is not a specific requirement for a mark of origin in Article IX:1 of GATT 1994. It comments that it does not understand what is meant by indication in a pictorial manner nor by indication alongside the GI nor how this is relevant. Given the Panel's findings, it considers it unnecessary to reach a conclusion on this issue.
6.28.
The United States suggests that paragraph 7,496(b) be retained as it is helpful to the resolution of the dispute for the Panel to summarize why, as a factual matter, an analysis of Article III:4, not Article IX, of GATT 1994 was appropriate.
6.29.
The Panel has retained the paragraph, numbered 7,510 in the final report, because it is appropriate to explain why the European Communities' defence concerning marks of origin appears to be irrelevant to the preceding legal analysis. However, it has modified the point.

Right to prevent the use of translations of registered GIs

6.30.
The European Communities considers that it would be useful to recall in paragraph 7,504, for the sake of completeness, that under Article 13(1)(b) of the Regulation, GI holders do have a negative right to prevent the use of the registered name or names in translation.
6.31.
The United Statesopposes this suggestion because paragraph 7,504 addresses the scope of the positive right of the GI holder under the Regulation, not what the GI holder can stop others from doing. Further, the negative right may cover a broad range of activities and is not limited to the use of so-called translations of GIs. With respect to the trademark claim in this dispute, the scope of the third party uses that the GI holder can prevent was never at issue because the European Communities concedes that, under Article 14(2) of the Regulation, the GI holder cannot stop trademark owners from using their valid trademarks in commerce.
6.32.
The Panel has added a footnote to the paragraph, numbered 7,518 to clarify the scope of the positive right to use a GI with respect to translations and has also clarified the importance of the fact that a trademark may continue to be used under Article 14(2) of the Regulation. However, the Panel declines to amend the referenced paragraph as requested because the protection granted by Article 13 of the Regulation is already addressed elsewhere and it has not been shown to what extent Article 13(1)(b) covers translations.

Exceptions in trademark legislation with respect to the use of GIs

6.33.
The European Communities comments that the assertion in paragraph 7,545 to the effect that its trademark legislation provides no exceptions with respect to the use of geographical indications is factually incorrect, and refers to its response to Panel question No. 153 and, specifically, to Article 6.1(b) of the First Trademark Directive and Article 12(b) of the Community Trademark Regulation. Therefore, even where a trademark owner is allowed under the GI Regulation to enforce his rights under the First Trademark Directive or the Community Trademark Regulation with respect to the confusing use of a registered GI, he cannot prevent such use if it is "in accordance with honest practices in industrial or commercial matters".
6.34.
The United Statesresponds that the Panel's point is that the exception in the trademark legislation may be narrower than that in the GI Regulation. It considers that the Panel's meaning is clear and that any possible ambiguity might be removed by adding the word "unqualified" before exception. It also comments that the European Communities asserted before the Panel that the trademark owners cannot prevent GI holders from using a registered GI on the grounds that the use of the name is confusing per se.
6.35.
The Panel takes note of the factual correction and has deleted the paragraph.

Scope of a limited exception for GIs in translation

6.36.
The European Communities suggests a redraft of paragraph 7,645 for the following reasons: (a) lest it imply that the European Communities agrees with the last sentence of paragraph 7,643; (b) in order to include all the relevant limitations to the exception in Article 14(2) of the Regulation relied upon by the Panel including "what is undoubtedly the most crucial one, namely that the trademark owner maintains the right to prevent any confusing uses by all parties except the GI holders"; and (c) because a registration under the Regulation may specify more than one linguistic version of the geographical indication and the last part of the second sentence of paragraph 7,645 may suggest otherwise.
6.37.
The United Statesopposes the suggestion which it considers a significant redrafting of the Panel's factual conclusions as to the meaning of Article 14(2) of the Regulation. In its view, the European Communities' arguments are baseless and appear to represent an attempt to back away from factual findings that the European Communities itself repeatedly encouraged the Panel to make, as it asks the Panel to purge all references from paragraph 7,645 regarding translations of registered GIs. The United States provides some illustrative references of the European Communities' representations during the panel proceeding and suggests that the Panel consider repeating citations to them to avoid any misunderstandings. The United States considers that (a) paragraph 7,645 does not imply that the European Communities agrees with paragraph 7,643; (b) there is no legitimate purpose served by replacing a summary of the issue of curtailment of the right against all signs (removing references to translations) with a summary of the issue of curtailment of the right against all third parties, which has already been summarized at paragraph 7,642; and (c) it is clear that paragraph 7,645 addresses names "rendered differently in another language" from the name registered, and not names in other languages that are registered.
6.38.
The Panel has taken careful note of the parties' comments and has amended the paragraph, numbered 7,659 in the final report, to track more closely the wording of the explanations in the European Communities' own submissions, and then made a finding on the basis of the terms of the legislation and those explanations. It has also added references in the succeeding paragraph and elsewhere to the limitation provided by certain directives which the European Communities explained during the proceeding.

Conclusions

6.39.
The European Communities requests that the Panel reflect in its conclusions its rejection of the US claim that the requirement of inspection structures as such constitutes a violation of national treatment obligations under the TRIPS Agreement and GATT 1994.
6.40.
The United Statesopposes this request as the report does not contain a separate finding rejecting any claim that an inspection structure requirement "as such" violates national treatment obligations. No purpose is served by repeating reasoning that the Panel did not find persuasive.
6.41.
The Panel has clarified that its findings that the United States did not make a prima facie case with respect to certain aspects of the inspection structures and has reflected this in its conclusions in paragraph 8.1. The Panel has also explained its reasons for exercising judicial economy in relation to Article 2(1) of the Paris Convention (1967), as incorporated by Article 2.1 of the TRIPS Agreement, reflected this in its conclusions in paragraph 8.1, and reflected all conclusions under that provision. The Panel has also added its conclusions from Section A of the findings to paragraph 8.1.

Suggestion by the Panel on a way to implement its recommendation

6.42.
The United States suggests that the Panel refrain from making a suggestion in paragraph 8.5 as to a way to implement the recommendation because (a) the European Communities is in a better position than either the Panel or the United States to determine the most appropriate way to implement the recommendations in the report; and (b) the simple clarification suggested by the Panel is not enough because, as the Panel correctly found (at paragraphs numbered 7.84 to 7.86 in the final report), the Regulation does not appear to have any procedures for the registration of GIs from WTO Members that do not satisfy the equivalence and reciprocity conditions.
6.43.
The European Communities is surprised by the United States' suggestion as the United States had informed the Panel that it "would welcome any objective clarification" that these conditions do not apply, (as noted at paragraph 7.39 in the final report). The European Communities remarks that if the Regulation is clarified in the sense suggested by the Panel, this would necessarily also include a clarification that the appropriate procedures are available for the registration of geographical indications from other WTO Members. For these reasons, the European Communities requests that paragraph 8.5 not be deleted.
6.44.
The Panel has modified its suggestion in paragraph 8.5 but, on the basis of the European Communities' remarks on interim review, considers it helpful to retain it.

Other requests for review

6.45.
The United Statesalso requests modifications to paragraphs 7.28, 7.71, 7.72, 7,125, 7,400, 7,559 and 7,596 and footnotes 100 and 479 and makes some clerical observations. It suggests the addition of a general statement that where a party elaborates on a statement in later submission or answers to questions that citations to a submission are meant to be illustrative and not exhaustive. The Panel has modified its report accordingly.
6.46.
The European Communities also requests the modification of paragraphs 7,407, 7,712 and 8.1. The Panel has modified those paragraphs and paragraphs 7,696 and 7,697 accordingly.

VII. FINDINGS

A. PRELIMINARY ISSUES

1. Consistency of panel requests with Article 6.2 of the DSU

7.1.
On 24 February 2004, the day after the Panel was composed and prior to the organizational meeting, the European Communities submitted a detailed request that the Panel issue a preliminary ruling that the United States' and Australia's respective requests for establishment of a panel were inconsistent with the requirements of Article 6.2 of the DSU. In accordance with the Panel's timetable, the United States and Australia submitted responses to the European Communities' request for a preliminary ruling.
7.2.
On 5 April 2004, the Panel issued the following preliminary ruling.9

(a) Introduction

1. The European Communities is of the view that the requests for establishment of a panel in this matter do not meet the requirements of Article 6.2 of the DSU. It has requested that the Panel issue a preliminary ruling regarding this question.10

2. The United States is of the view that the European Communities' arguments in support of its request for a preliminary ruling that the United States' panel request does not meet the requirements of Article 6.2 of the DSU are without merit. It submits that the Panel should reject that request.11

(...)12

4. Article 6.2 of the DSU provides as follows:

"2. The request for the establishment of a panel shall be made in writing. It shall indicate whether consultations were held, identify the specific measures at issue and provide a brief summary of the legal basis of the complaint sufficient to present the problem clearly. In case the applicant requests the establishment of a panel with other than standard terms of reference, the written request shall include the proposed text of special terms of reference."

5. The European Communities alleges that the requests for establishment of a panel are inconsistent with the following requirements in Article 6.2:

(a) they fail to identify the specific measure at issue; and

(b) they do not provide a brief summary of the legal basis of the complaint sufficient to present the problem clearly.

6. The Panel will examine each of the requests for establishment of a panel as a whole on its face in the light of the parties' respective communications to the Panel to date and the relevant provisions of the covered agreements to assess its compliance with each of these requirements in the sections below.13

(b) United States' request for establishment of a panel14

(i). Identification of the specific measure at issue

7. The United States' request, in its first paragraph, refers to the following measure:

"EC Council Regulation (EEC) No 2081/92 of 14 July 1992 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs, as amended".

8. The United States' request, in its second paragraph, identifies the following measures at issue:

"Regulation 2081/92, as amended, and its related implementing and enforcement measures ('Regulation 2081/92')".

Council Regulation (EEC) No. 2081/92, as amended

9. The United States' request identifies a particular regulation by the name of the authority which adopted it, by its number, by its date of adoption and by its full title. It includes amendments of this regulation. This is a specific measure,15 and the request has identified it. There is no doubt as to which specific measure is in issue, as the European Communities has itself demonstrated by annexing a consolidated text of the regulation to the request for a preliminary ruling.16

10. The European Communities argues that:

"The unspecific reference to Regulation 2081/92 made in the Panel requests does not permit the EC to understand which specific aspects among those covered by Regulation 2081/92 the complainants intend to raise in the context of the present proceedings." (italics added)

11. The Panel considers the ordinary meaning of the terms of the text in Article 6.2 of the DSU, read in their context and in the light of the object and purpose of the provision, to be quite clear. They require that a request for establishment of a panel "identify the specific measures at issue". They do not require the identification of the "specific aspects" of these "specific measures."

"its related implementing and enforcement measures"

12. The United States' request identifies, in addition to the regulation as amended, "its related implementing and enforcement measures". The European Communities asserts that this phrase does not appear in the United States' request.17 The Panel draws the European Communities' attention to the definition of "Regulation 2081/92" in the second paragraph of the request.18 This phrase, as used in the United States' request, expressly refers to measures which implement and enforce Regulation (EEC) No. 2081/92, as amended. The word "related" is not used in isolation in the request.

13. The Regulation as amended itself expressly provides for the taking of particular types of decisions and actions and the adoption of rules of procedure for applying the Regulation. For example, Article 6 provides for the Commission to verify that registration applications include all the requisite particulars and, if it concludes that the name qualifies for protection, to publish certain details and, if no objection is notified, the name is entered in a register or, if the Commission concludes that the name does not qualify for protection, to decide not to proceed with the publication. Article 11a provides that the Commission may cancel the registration of a name. Article 12 provides for decisions by the Commission as to whether a third country satisfies the equivalence conditions and offers the requisite guarantees. Article 12b provides for the Commission, if it concludes that a name the subject of a registration request sent by a third country satisfies the conditions for protection, to publish certain details or, if it concludes that the name does not satisfy the conditions for protection, to decide not to proceed with publication. Article 16 provides for detailed rules for applying the Regulation to be adopted.19 Those decisions, actions and rules, among others, implement the Regulation. The European Communities has indicated that the competent judicial and executive authorities enforce the Regulation.20 In the Panel's view, this does not imply that there is any uncertainty as to which measures taken by those authorities implement and enforce the Regulation and which do not. All of the Regulation's implementing and enforcement measures form a group of specific measures which, although they may be a large group, are identified by the United States' request for establishment of a panel.21

14. For these reasons, on the basis of the facts available to us, the Panel rules that the United States' request for establishment of a panel did not fail to identify the specific measures at issue in accordance with Article 6.2 of the DSU.

(ii) A brief summary of the legal basis of the complaint sufficient to present the problem clearly

Preliminary remarks

15. The United States' request, in its third paragraph, sets out in narrative form alleged inconsistencies with the covered agreements, by quoting or paraphrasing the text of certain provisions of the covered agreements. The fourth paragraph begins with the words "Regulation 2081/92 appears to be inconsistent with:" and then sets out provisions of the covered agreements by number with which the United States alleges that the measures at issue are inconsistent.

16. It is clear on a plain reading of the request that the series of numbered provisions is not to be limited to what appears in the narrative text. The narrative text quotes or paraphrases some of these provisions which, in the Panel's view, illustrates and clarifies the alleged violations. In this regard, the Panel notes that the European Communities has conceded that it recognizes in the narrative text the treaty language of Articles 3 and 4 of the TRIPS Agreement and Articles I:1 and III:4 of the GATT 1994.22

17. The series of numbered provisions identifies every article of every covered agreement at issue and, where there are paragraphs within an article, it identifies every paragraph by number (with the exception of Article 2 of the Paris Convention, as incorporated by Article 2.1 of the TRIPS Agreement, and Article I of the GATT 1994).

Individual analyses

18. The Panel considers that the mere listing of provisions of the relevant covered agreements may not satisfy the standard of Article 6.2 of the DSU, for instance, where the listed provisions establish multiple obligations rather than one single, distinct obligation.23 However, where the multiple obligations are closely related and interlinked, a reference to a common obligation in the specific listed provisions should be sufficient to meet the standard of Article 6.2 of the DSU under certain circumstances in a particular case.24

19. With these considerations in mind, the Panel now examines individual claims related to each provision listed by the United States in its request for establishment of a panel. The Panel notes that Articles 1.1, 2.1 (incorporating by reference Article 2 of the Paris Convention (1967)), 3.1, 4, 16.1, 20, 24.5, 41.4, 44.1, 63.1, 63.3 and 65.1 of the TRIPS Agreement and Article III:4 of the GATT 1994, which were enumerated in the United States' request, each contains either a single obligation or very closely related obligations. In addition, the Panel notes the following:

(a) Article 22.1 of the TRIPS Agreement does not set out an obligation but rather a definition of a term which is used in other provisions set out in the United States' request. The reference to Article 22.1 and the corresponding narrative text in the request actually presents the problem more, rather than less, clearly because they explain that the United States will challenge the measures at issue under the relevant obligations on the basis of an alleged inconsistency with this definition;

(b) Article 22.2 of the TRIPS Agreement contains an obligation regarding the use of a geographical indication in two circumstances, but the narrative text paraphrases the first one from Article 22.2(a). This clarifies that the obligation in this circumstance is the subject of a claim;

(c) Article 41.1 of the TRIPS Agreement contains a general obligation which relates, on its face, to "enforcement procedures as specified in [Part III]". Several of those enforcement procedures are raised in the United States' request, namely those under Articles 41.2, 41.4, 42 and 44.1. This clarifies that the general obligation is the subject of a claim in relation to these procedures. The narrative text also states that the regulation at issue "does not provide adequate enforcement procedures";

(d) Article 41.2 of the TRIPS Agreement contains general obligations which relate to the operation of procedures concerning the enforcement of intellectual property rights. The requirements of each sentence of Article 41.2 are distinct but they are all closely related;

(e) Article 42 of the TRIPS Agreement contains closely related obligations concerning fair and equitable procedures. The requirements of each sentence in Article 42 are distinct but they all set out specific features of fair and equitable civil judicial procedures concerning the enforcement of intellectual property rights;

(f) the focus of the claims under Articles 41.1, 41.2 and 42 of the TRIPS Agreement is further clarified by the fact that the measures at issue deal with the subject of the protection of geographical indications and designations of origin, which does not impact all intellectual property rights covered by the Agreement, and the narrative text also refers to the protection of trademarks and geographical indications; and

(g) Article I of the GATT 1994 contains four paragraphs, but the narrative text quotes only the first paragraph. This clarifies that the obligation in Article I:1 is the subject of a claim. The European Communities recognizes this treaty text.25

20. The European Communities further contends that it is entitled to know which provision or aspect of Regulation No. 2081/92 is supposed to violate certain obligations and in which way such a violation is deemed to occur. In the Panel's view, the European Communities is seeking the arguments, rather than just the claims, of the United States.26 That being said, the Panel wishes to assure the European Communities that it is fully entitled to know the arguments of the United States during the course of the proceedings. Those arguments must be set out and may be clarified in the United States' submissions.27 However, Article 6.2 of the DSU does not require those arguments to be set out in the request for establishment of a panel.28

21. The Panel notes that Article 6.2 of the DSU calls for sufficient clarity with respect to the legal basis of the complaint so as to enable a defending party to begin preparing its defence.29 Our examination of the United States' request for establishment of a panel as a whole, in the light of the United States' and the European Communities' respective communications to the Panel to date and the relevant provisions of the covered agreements, leads us to believe that the request for establishment of a panel was sufficiently clear for the European Communities to begin preparing its defence.

22. For these reasons, on the basis of the facts available to us, the Panel rules that the United States' request for establishment of a panel did not fail to provide a brief summary of the legal basis of the complaint sufficient to present the problem clearly in accordance with Article 6.2 of the DSU.

(...)30

(d) Due process

43. The European Communities is also of the view that the "deficiencies" of the requests for establishment of a panel seriously prejudice its due process rights as a defending party, notably, to know the case it has to answer.31

44. The Panel recalls once again that Article 6.2 of the DSU calls for sufficient clarity with respect to the legal basis of the complaint so as to enable a defending party to begin preparing its defence.32 In this respect, the Panel has found that the complainants' requests for establishment of a panel were sufficiently clear for the European Communities to begin preparing its defence.33 Therefore, the Panel considers that it is not necessary to make a separate ruling on this issue, as presented by the European Communities in its request.34

45. The Panel is mindful of the due process rights of all parties in this proceeding. In this regard, it notes that the European Communities had a period of over four months after the establishment of the Panel prior to its constitution plus a period of over seven weeks prior to receipt of the complainants' first written submissions to begin preparing its case, and will have an additional period of four and a half weeks from receipt of the complainants' first written submissions to continue preparation of its own first written submission, which is in excess of the maximum period proposed in Appendix 3 to the DSU.

(e) Timeliness

46. The European Communities submitted its request for a preliminary ruling two days after the composition of the Panel. It also raised its concerns at the DSB meetings at which the requests for establishment of a panel were considered.35

47. The Panel therefore considers that the European Communities has raised its concerns in a timely manner.36

(f) Conclusion

48. In light of the foregoing, on the basis of the facts available to us, the Panel rules that the measures and claims in Australia's and the United States' respective requests for establishment of a panel did not fail to meet the requirements of Article 6.2 of the DSU that they identify the specific measures at issue and provide a brief summary of the legal basis of the complaint sufficient to present the problem clearly. [End of 5 April 2004 ruling]

7.3.
The Panel stated expressly that its 5 April 2004 preliminary ruling was based on the facts available to it at that time.37 In this final report, the Panel makes further findings on the sufficiency of the panel request, in light of submissions made later during the course of the panel proceeding. These submissions confirm the Panel's ruling as to the meaning of the words used in the panel request and the Panel's assessment that the ability of the respondent to defend itself was not prejudiced.38
7.4.
First, the Panel recalls that the European Communities argued, in its request for a preliminary ruling, that:

"The unspecific reference to Regulation 2081/92 made in the Panel requests does not permit the EC to understand which specific aspects among those covered by Regulation 2081/92 the complainants intend to raise in the context of the present proceedings."39

7.5.
The Panel ruled that Article 6.2 did not require the identification of the "specific aspects" of the specific measures at issue.40 In any event, after consulting the parties' first written submissions, it is clear that the reference to "Regulation No. 2081/92, as amended" in the request for establishment of a panel did identify certain specific aspects among those covered by the Regulation that the complainant later raised, as follows:

(a) the United States' claims concerning national treatment (considered in Section VII:B of this report) are based on the differences between the two sets of registration and objection procedures set out in Regulation (EEC) No. 2081/92 (the "Regulation") in Articles 5 through 7 and 12 through 12d, respectively.41 This is one of the principal features of the Regulation. It was clear from the request for establishment of a panel that the complainant intended to raise these aspects of the Regulation; and

(b) the United States' claim concerning the legal protection for trademarks (considered in Section VII:C of this report) is based on Article 14 of the Regulation. This provision is specifically devoted to that issue. It was clear from the request for establishment of a panel that the complainant intended to raise this article of the Regulation, as the European Communities itself confirmed in its request for a preliminary ruling42.

7.6.
Second, the Panel recalls that the European Communities submitted in its February 2004 request for a preliminary ruling that:

"In the present case, the ambiguity of the Panel request is such that the EC is, to this date, not sure of the case which the United States and Australia are bringing before the Panel. As a consequence, the EC has been seriously hampered in its efforts to prepare its defence."43

7.7.
Specifically, with respect to the national treatment claims, it submitted as follows:

"[T]he US claim is limited to a paraphrasing of the treaty language of [Article 3 TRIPS and Article III:4 GATT]. The US claim does not permit to understand which provision or aspect of Regulation 2081/92 is supposed to violate the national treatment principle, and in which way such a violation is deemed to occur."44

7.8.
The Panel's assessment was that the request for establishment of a panel was sufficiently clear for the European Communities to begin preparing its defence.45 After consulting the European Communities' first written submission, and information submitted by the United States, the Panel is now aware that the European Communities had already presented in the Council for TRIPS in September 2002 a statement that responded specifically to the United States' argument that national treatment under the TRIPS Agreement applied to geographical indications. In that statement, the European Communities quoted the texts of Article 3 of the TRIPS Agreement and Article III:4 of GATT 1994 and argued that "[t]hose entitled to rights under TRIPS are nationals".
7.9.
Further, in an attachment to a letter sent in January 2003 by Commissioner Lamy to the United States Trade Representative, under the heading "national treatment", the Commissioner referred inter alia to the equivalence and reciprocity conditions, the notion of "nationals" under the TRIPS Agreement, and the availability to U.S. nationals of protection for GIs located in the European Communities.46 These arguments are also an important defence set out in the European Communities' first written submission, in which it is argued that "[t]he conditions for the registration of geographical indications do not depend on nationality".47
7.10.
With respect to the claim concerning minimum standards of GI protection, the European Communities had submitted in its request for a preliminary ruling that:

"The United States alleges that Regulation 2081/92 'does not provide legal means for interested parties to prevent the misleading use of a geographical indication'. This claim is not comprehensible to the EC. In its Article 13, Regulation 2081/92 contains detailed provisions regarding the protection of geographical indications. These provisions provide interested parties with the legal means to prevent the misleading use of a geographical indication. In the absence of further explanations, the EC fails to comprehend what is the claim that the United States is intending to establish."48

7.11.
The Panel is now aware that, in the same letter, Commissioner Lamy had earlier confirmed to the United States Trade Representative that "US GIs cannot be registered in the EU" but argued that alternative measures besides the Regulation provided protection for U.S. GIs.49 In light of these attendant circumstances, the allegation that "Regulation 2081/92 'does not provide legal means for interested parties to prevent the misleading use of a geographical indication'" should have been readily comprehensible to the European Communities.

2. Measures adopted after the date of establishment of the Panel

(a) Main arguments of the parties

(b) Main arguments of third parties

7.18.
Chinaargues that the wording of the request for establishment of a panel specified amendments to the Regulation and that, therefore, they are properly included in the Panel's terms of reference. The respondent received notice of the inclusion of amendments and had enough opportunity to respond to the complainant's case. It is irrelevant whether the amendments came into effect before or after the Panel was established.58

(c) Consideration by the Panel

7.19.
The Panel begins by noting that Council Regulation (EEC) No. 2081/92 (referred to in this report as the "Regulation") has not been amended in any relevant respects during this panel proceeding. It was last amended in April 2003, prior to the date of the request for establishment of a panel. However, certain individual registrations were effected under the Regulation after the date of establishment of the Panel and prior to the date of the complainant's first written submission, and registrations continue to be made after that date.

3. Claims under Article 2(2) of the Paris Convention (1967), as incorporated by Article 2.1 of the TRIPS Agreement

(a) Main arguments of the parties

7.21.
The United Statesclaims that the Regulation imposes a requirement as to domicile or establishment in the European Communities on the availability of registration and the right to object to registrations contrary to Article 2(2) of the Paris Convention (1967) as incorporated by Article 2.1 of the TRIPS Agreement.61 In its view, the requirement of commercial establishment in the European Union under the Regulation at issue is simply another aspect of the alleged denial of national treatment and the requirement in Article 2(2) of the Paris Convention (1967) is connected to and part of the obligation in Article 2(1). Its request for establishment of a panel referred to "national treatment" and "Article 2" of the Paris Convention (1967), which include both paragraphs 1 and 2.62
7.22.
The European Communities responds that these claims are outside the Panel's terms of reference because they relate to Article 2(2) of the Paris Convention (1967) which was not explicitly mentioned in the request for establishment of a panel. Article 2(2) prohibits the imposition of requirements as to domicile or establishment and is therefore different from, and additional to, the obligations resulting from the national treatment provision of Article 2(1).63

(b) Consideration by the Panel

7.23.
The Panel notes that the United States' request for establishment of a panel refers in narrative form to the treatment of other nationals and products originating outside the European Communities and that provided to the European Communities' own nationals and products, and cites by number Article 2.1 of the TRIPS Agreement "incorporating by reference Article 2 of the Paris Convention" (1967). In its submissions to the Panel, the United States claims that certain aspects of the Regulation are inconsistent with both Article 2(1) and 2(2) of the Paris Convention (1967) as incorporated by Article 2.1 of the TRIPS Agreement.
7.24.
The issue for the Panel is whether the reference to national treatment and to Article 2 of the Paris Convention (1967) is sufficient to present the legal basis of the complaint under Articles 2(1) and 2(2), or only Article 2(1).
7.25.
The Panel considers that the mere listing of provisions of the relevant covered agreements may not satisfy the standard of Article 6.2 of the DSU, for instance, where the listed provisions establish multiple obligations rather than one single, distinct obligation.64 However, where the multiple obligations are closely related and interlinked, a reference to a common obligation in the specific listed provisions should be sufficient to meet the standard of Article 6.2 of the DSU under certain circumstances in a particular case.65
7.26.
Paragraph 1 of Article 2 of the Paris Convention (1967) expresses a national treatment obligation. Paragraph 2 prohibits local domicile or establishment requirements as a condition for the enjoyment of any industrial property rights. The texts of paragraphs 1 and 2 are linked by the use of the conjunction "[h]owever" which indicates that paragraph 2 restricts the rule of paragraph 1. Paragraph 2 in effect provides that certain conditions may not be imposed on foreign nationals, even if they are imposed on a country's own nationals.66 Paragraph 3 also reserves or excepts certain conditions from the national treatment obligation, but by stating certain conditions which may be imposed on foreign nationals, even if they are not imposed on a country's own nationals. Read in context, all three paragraphs either establish a single obligation or are very closely related: paragraph 1 sets out an obligation to provide national treatment and paragraphs 2 and 3 limit that obligation.
7.27.
Therefore, in the Panel's view, the references in the request for establishment of a panel to national treatment and to Article 2 of the Paris Convention (1967), which does not specify particular paragraphs, as incorporated by Article 2.1 of the TRIPS Agreement, is sufficient to explain the legal basis of the complaints under both paragraphs 1 and 2 of Article 2. Accordingly, the Panel rules that the claims under Article 2(2) of the Paris Convention (1967), as incorporated by Article 2.1 of the TRIPS Agreement, are within the Panel's terms of reference.

4. Claim regarding objection procedures under GATT 1994

7.28.
The European Communities indicates in its responses to questions after the second substantive meeting that, in its view, the United States has made a claim in relation to the objection procedures under the TRIPS Agreement but not under GATT 1994.67 It does not indicate the reasons for its view.
7.29.
The United Statesreplies that it makes its claim in relation to the objection procedures under GATT 1994 as well, and refers to passages in its rebuttal submission.68
7.30.
The parties do not dispute that the United States' claim with respect to objection procedures under GATT 1994 is within the Panel's terms of reference. Nor do they dispute that the United States' rebuttal submission clearly raises a claim in respect of the objection procedures under "the national treatment obligations of GATT 1994". However, the presentation of this claim after the first substantive meeting raises an issue of due process. The United States chose not to pursue this claim in its first written submission but later expected the European Communities to defend itself against an additional claim.
7.31.
Normally, this would prejudice a respondent's ability to defend itself. However, the overlapping nature of the United States' claims with respect to different aspects of the same measure and the same type of obligation under different covered agreements is a feature of this dispute. The facts and arguments submitted in support of this claim in respect of the objection procedures under the national treatment obligations of GATT 1994 completely overlap with those in support of claims in respect of the objection procedures under the national treatment obligations in the TRIPS Agreement, and the application procedures under the national treatment obligation in Article III:4 of GATT 1994. This also serves to clarify that this claim is made under Article III:4.
7.32.
The requirements of due process have been observed. The European Communities has responded to all the relevant facts and arguments in detail, as well as a question from the Panel concerning the justification of the objection procedures under Article XX(d) of GATT 1994, although it did not otherwise respond to this claim.
7.33.
For all these reasons, the Panel will consider this claim.69

5. Request by a third party for a suggestion on ways to implement a recommendation

7.34.
Mexicoconsiders that "cochineal" should be removed from the list of products covered by the Regulation set out in its Annex II. As a third party, Mexico does not submit this as a claim, but requests that the Panel make a suggestion to this effect pursuant to the second sentence of Article 19.1 of the DSU. Mexico argues that there is no requirement that a request for such a suggestion must be forwarded by one of the parties and, if the Panel does not deem it appropriate to make such a specific suggestion, the same result would be achieved by a suggestion that the European Communities withdraw the Regulation.70
7.35.
The Panel takes note of Mexico's request. The issue of the product coverage of the Regulation is not challenged by the claims in this dispute and is therefore outside the Panel's terms of reference. However, Mexico's attention is drawn to Article 10.4 of the DSU.

6. Order of analysis of claims

7.36.
The claims in this dispute are made under the TRIPS Agreement and GATT 1994 and certain claims under each agreement relate to the same aspects of the measure at issue. There is no hierarchy between these two agreements which appear in separate annexes to the WTO Agreement. The parties have addressed claims under the TRIPS Agreement first in their submissions, which appears logical. Therefore, the Panel will follow that order of analysis in this report.
7.37.
The Panel will consider the claims relevant to each aspect of the measure in turn. The following sections of the findings are organized as follows:

– Section B National treatment claims

– Section C Trademark claim

– Section D Other claims

B. NATIONAL TREATMENT CLAIMS

1. Availability of protection

(a) Do the conditions in Article 12(1) of the Regulation apply to WTO Members?

(i) Main arguments of the parties71

7.38.
The United States claims that GIs located in the territory of a WTO Member outside the European Union can only be registered under the Regulation if that Member satisfies the conditions in Article 12(1), which require it to adopt a system for GI protection that is equivalent to that in the European Communities and provide reciprocal protection to products from the European Communities.72
7.39.
The United States argues that these conditions are clearly set out as requirements for registration of GIs in all third countries, including WTO Members, in Articles 12 and 12a of the Regulation. Article 12(1) does not suggest that WTO Members are excluded from its conditions and Article 12a sets out the sole process under the Regulation for the registration of non-EC GIs. If the conditions in Article 12(1) do not apply to WTO Members, then they may not be recognized under Article 12(3) and the Article 12a procedure is still not available for them. It argues that the European Communities had maintained in its public statements up until the time of its first written submission that the conditions did apply to WTO Members. It did not amend the conditions so that they would not apply to WTO Members when it amended the Regulation in April 2003. The United States would welcome any objective clarification that the conditions do not apply, but the clear language of the Regulation shows that they do. The introductory phrase "[w]ithout prejudice to international agreements" reserves flexibility to protect specific non-EC GIs through bilateral agreements.73
7.40.
The United States argues that the Panel is not bound by the European Communities' interpretation of its own measure. It is not based on any published official notice, it runs counter to the terms of the Regulation and it does not appear to be authoritative or binding as a matter of EC law. It is a statement by the European Commission which does not prevent the European Council, the EC member States or individuals from contesting that interpretation before the Community courts.74
7.41.
The European Communities responds that the conditions in Article 12(1) of the Regulation do not apply to geographical areas located in WTO Members. The introductory phrase of Article 12(1) provides that it applies "[w]ithout prejudice to international agreements" – which include the WTO agreements. This is made clear by the eighth recital of the April 2003 amending Regulation which took specific account of the provision of the TRIPS Agreement. WTO Members are obliged to provide protection to geographical indications in accordance with Section 3 of Part II and the general provisions and basic principles of the TRIPS Agreement. For this reason, Article 12(1) and 12(3) do not apply to WTO Members. Accordingly, the registration of GIs from other WTO Members is subject to exactly the same conditions as the registration of GIs from the European Communities.75
7.42.
The European Communities argues that the procedure under Article 12a of the Regulation is not limited to the cases covered by Article 12(3). The term "third country" in Articles 12 through 12d does or does not include WTO Members depending on the wording, context and objectives of each specific provision. The evidence of prior statements by Community officials does not contradict the EC's interpretation in this Panel proceeding and more recent statements support it. The statements made by the agents of the European Commission before the Panel commit and engage the European Communities but their intention is not to create new legal obligations in public international or in Community law. They are made on behalf of the European Communities as a whole and not only the Commission. Community legislation must, so far as possible, be interpreted in a manner that is consistent with international law, in particular where its provisions are intended specifically to give effect to an international agreement concluded by the Community, as indicated by the phrase "[w]ithout prejudice to international agreements". An interpretation that limited that phrase to bilateral agreements would largely deprive it of its useful value.76
7.43.
The European Communities does not consider that the Panel is "bound" by the EC's interpretation of its own measure. However, it submits that the Panel must take due account of the fact that the Regulation is a measure of EC domestic law and establish its meaning as a factual element. This means that: (1) the burden of proof is on the complainant to establish the meaning of the measure. Given that the claim in the present dispute is based on the measure per se and not as applied, the complainant must establish "beyond doubt" that the measure entails a violation; (2) in making an objective assessment of the facts and the interpretation of the measure, the Panel should be guided by the rules of interpretation customary in the EC's domestic legal order; and (3) it is the EC's authorities who must interpret and apply the measure and therefore its explanations must be given considerable deference.77

(ii) Main arguments of third parties

7.44.
Argentinaasserts that the conditions of equivalence and reciprocity apply to GIs located in all third countries. It is unconvinced by the European Communities' explanation of its measure. If its intention had been to distinguish between WTO Members and other third countries, it could have done so more explicitly.78
7.45.
Brazilasserts that the conditions of equivalence and reciprocity apply to GIs located in all third countries. It considers that the European Commission's interpretation of the phrase "without prejudice to international agreements" would not necessarily withstand scrutiny by a judicial body and is unlikely given that the provisions that refer to "third countries" would have been drafted with only a handful of non-WTO Members in mind. The reference in Article 12(2) indicates that third countries means all third countries outside the European Communities, although in Articles 12a(2) and 12d(1) it could mean non-WTO Members. The EC's interpretation could a contrario indicate a recognition that the equivalence and reciprocity conditions violate national treatment obligations in GATT 1994 and TRIPS.79
7.46.
Canadaconsiders that Article 12 of the Regulation, read in context with Articles 12a, 12b and 12d, cannot support the interpretation advanced by the European Communities. The ambiguous reference to "international agreements" is insufficient to counter their clear wording. There would not appear to be an alternative legal basis for filing applications for countries outside the European Communities besides Article 12 due to the wording of Article 12a(1). Articles 12b and 12d refer to "WTO Members" and "third countries" which suggests no differential application to "third countries" in Articles 12 and 12a. The European Communities indicated that Article 12 applied to all WTO Members in a statement in September 2002 to the Council for TRIPS.80
7.47.
Chinaargues that the European Communities' interpretation is not accompanied by any supporting evidence and that there is no regulatory language in the provisions to exclude expressly the application of these provisions to WTO Members. The preamble to the April 2003 amending Regulation refers specifically to WTO Members in relation to the right of objection, but does not exclude WTO Members from the equivalence and reciprocity conditions. Had the drafters intended that it should not apply, they would have inserted a clause to that effect in the preamble. The European Communities appears to have admitted that portions of Article 12, regarding product specifications and inspection, do apply to WTO Members.81
7.48.
Colombiasubmits that, if the European Communities' interpretation of "without prejudice to international agreements" is correct, the Panel should recommend that it modify its legislation in such a way that that phrase acquires the scope and meaning that are assigned to it in the EC's first written submission.82
7.49.
Mexicosubmits that the language of Article 12(1) of the Regulation is precise and unequivocal. Third countries must satisfy conditions of equivalence and reciprocity in order to receive the same protection as EC member States.83
7.50.
New Zealandsubmits that the European Communities' interpretation of Article 12(1) and (3) and the phrase "without prejudice to international agreements" is novel and does not withstand close scrutiny. It runs counter to the usual meaning of that phrase and effectively admits that requiring nationals of WTO Members to satisfy the procedures in Article 12(1) and (3) would be contrary to WTO obligations. It is inconsistent with the wording of the Regulation itself and, if Article 12(3) does not apply to WTO Members, then the application procedure in Article 12a would not either. This is the first time that this interpretation has been raised by the European Communities. The alternative interpretation adopted by the complainant is consistent with the wording of the Regulation.84
7.51.
Chinese Taipei asserts that the conditions of equivalence and reciprocity apply to GIs located in all third countries.85

(iii) Consideration by the Panel

7.52.
The first issue in this claim concerns the conditions for registration of GIs under the Regulation. It is not disputed that a GI located outside the European Communities has never been registered nor the subject of an application made under the Regulation.86 Therefore, the provisions concerning the protection of such GIs have never been applied in a particular instance. However, the United States challenges this aspect of the Regulation "as such".
7.53.
The parties agree that the conditions set out in Article 12(1) of the Regulation do not apply to the protection of GIs located within the territory of the European Communities. They disagree as to whether they apply to the protection of GIs located in other WTO Members. The United States claims that they do so apply, and it is not disputed that the European Communities never made a clear statement that these conditions did not so apply prior to this panel proceeding. However, the European Communities responds in its submissions to the Panel that the conditions only apply to third countries that are not WTO Members.
7.54.
The European Communities' position, as expressed in its submissions to the Panel, has been welcomed in principle by the complainants and by two third parties87. If the United States were satisfied with this position, it would provide a positive solution to many of the national treatment claims in this dispute. However, the United States is not persuaded that the European Communities would be able to implement the position that it has presented to the Panel in light of the terms of the Regulation on its face, allegedly prior inconsistent statements by the European Communities to the Council for TRIPS, the Commission's Guide to the Regulation and elsewhere, and inconsistent statements made during this Panel proceeding by the European Communities.88 Therefore, although the European Communities submits that the Regulation already is in conformity with its obligations, the Panel is obliged to proceed with its assessment of the national treatment claims based on Article 12(1) of the Regulation.
7.56.
Turning to the Regulation, the Panel notes that it applies to the registration of "designations of origin" and "geographical indications", as defined.91 For ease of reference, and without prejudice to their consistency with the definition of a geographical indication in Article 22.1 of the TRIPS Agreement, we shall refer to them both as "GIs" in this report, except where the context requires otherwise.
7.57.
Certain facts are agreed. The parties agree that the Regulation contains two sets of detailed procedures for the registration of GIs for agricultural products and foodstuffs. The first procedure, in Articles 5 through 7, applies to the names of geographical areas located in the European Communities.92 It has been part of the Regulation since its adoption in 1992, although it has been amended subsequently in certain respects. The second procedure, principally found in Articles 12a and 12b, applies to the names of geographical areas located in third countries outside the European Communities.93 It was inserted in the Regulation in April 2003. A third procedure for registration of GIs protected under the national law of EC member States was formerly available under Article 17, but was deleted in April 2003. A fourth possibility is registration by means of an international agreement, discussed below.
7.58.
The parties disagree as to whether the second of these procedures is subject to additional conditions found in Article 12(1) of the Regulation that do not apply to the first procedure. Article 12(1) provides as follows:

"1. Without prejudice to international agreements, this Regulation may apply to an agricultural product or foodstuff from a third country provided that:

- the third country is able to give guarantees identical or equivalent to those referred to in Article 4,

- the third country concerned has inspection arrangements and a right to objection equivalent to those laid down in this Regulation,

- the third country concerned is prepared to provide protection equivalent to that available in the Community to corresponding agricultural products or foodstuffs coming from the Community."

7.59.
Article 12 has been part of the Regulation since its adoption in 1992, although it was amended in April 2003 by the insertion of the requirement of a right of objection equivalent to those laid down in the Regulation, when Article 12(3) and Articles 12a through 12d, including the second procedure described above, among other provisions, were inserted. It is not in dispute that many WTO Members, including the United States, do not satisfy the conditions set out in Article 12(1).
7.60.
The factual issue for the Panel to decide is whether the conditions set out in Article 12(1) apply to the availability of protection for GIs located in WTO Members. In other words, the factual issue is whether the registration procedure in Articles 12a and 12b is available for GIs located in WTO Members that do not satisfy the conditions in Article 12(1).
7.61.
The United States presents two types of evidence. The first is the text of the Regulation and the second consists of the European Communities' own statements concerning the Regulation prior to, and during, this Panel proceeding.
7.62.
The Panel begins its analysis by reviewing the measure on its face.94 The procedure in Articles 12a and 12b of the Regulation begins with the filing of an application under paragraph 1 of Article 12a and continues with its initial examination under paragraph 2. The text of paragraph 1 begins "[i]n the case provided for in Article 12(3)", which immediately limits the availability of the procedure according to the terms of Article 12(3). The text of paragraph 2 of Article 12a begins "[i]f the third country referred to in paragraph 1 deems..." which confirms that this aspect of the procedure is limited in the same way as paragraph 1. Paragraph 1 of Article 12b sets out the next step in the same procedure and refers to the registration request sent by "the third country", which is the third country described in Article 12b(2).
7.63.
Article 12(3) of the Regulation provides as follows:

"3. The Commission shall examine, at the request of the country concerned, and in accordance with the procedure laid down in Article 15 whether a third country satisfies the equivalence conditions and offers guarantees within the meaning of paragraph 1 as a result of its national legislation. Where the Commission decision is in the affirmative, the procedure set out in Article 12a shall apply."

7.64.
The case provided for in this paragraph is clear: it refers to a third country which satisfies the conditions in Article 12(1). The initial clause of Article 12a, as confirmed by the chain of cross-references in Articles 12a(2) and 12b(1), therefore limits the procedure in Articles 12a and 12b to such third countries. No other provision in Article 12a or 12b indicates that that procedure is available for the registration of GIs located in a third country which does not satisfy the conditions in Article 12(1), even if it is a WTO Member. This is consistent with Article 12b(2), which provides for objections in the same procedure, and expressly distinguishes between a "Member State of the European Union or a WTO member" and "a third country meeting the equivalence conditions of Article 12(3)". The implication is that a WTO Member is not necessarily a third country meeting those conditions.95
7.65.
The only other provision in the Regulation which could indicate the possibility of registration of GIs located in a third country which does not satisfy the conditions in Article 12(1) is the introductory phrase of Article 12(1) itself, which prefaces the conditions with the clause "[w]ithout prejudice to international agreements". The European Communities concedes that the application of the conditions in Article 12(1) of the Regulation would prejudice its obligations under Article III:4 of GATT 1994 and submits to the Panel that, as a consequence, it would not apply those conditions to GIs located in WTO Members. Nevertheless, it does not follow that the procedure in Articles 12a and 12b is available for the registration of GIs located in WTO Members. That procedure is limited to third countries which satisfy the conditions in Article 12(1) and there is no other procedure in the Regulation available for WTO Members that do not satisfy those conditions. There is the possibility of protection pursuant to an international agreement, but no existing international agreement either incorporates the procedure under Articles 12a and 12b of the Regulation or contains an application and registration procedure for GIs located in all WTO Members. In particular, neither GATT 1994 nor the TRIPS Agreement contains any such procedure.
7.66.
Other provisions in the Regulation may also shed light on this issue. Article 12d(1), which provides a right of objection to registration of GIs located in the European Communities, distinguishes twice between persons from "a WTO Member country or a third country recognized under the procedure provided for in Article 12(3)".96 This expressly grants a right of objection to persons from WTO Members and is a further indication that where the Regulation refers to "a third country recognized under the procedure provided for in Article 12(3)" it does not include a WTO Member unless it has been recognized under that procedure.
7.67.
Four other provisions also refer to "a third country recognized under the procedure provided for in Article 12(3)" (or analogous terms) without referring to a WTO Member: Article 5(5) on registration of GIs that straddle the external border of the European Communities, Article 6(6) on homonymous GIs, Article 10(3) on inspection structures and Article 13(5) on the coexistence of registered and unregistered GIs. The European Communities' view of Article 10(3) is that it includes WTO Members97, and there seems to be no reason why the other three provisions should exclude WTO Members. These provisions seem to confirm that WTO Members are included in the term "third countries" and therefore require recognition under the procedure provided for in Article 12(3).
7.68.
The preamble of the Regulation, which has contained the conditions in Article 12(1) more or less in their current form since the original version was adopted in 1992, sets out its justification. The 19th recital reads as follows:

"Whereas provision should be made for trade with third countries offering equivalent guarantees for the issue and inspection of geographical indications or designations of origin granted on their territory;"98

7.69.
The phrase "equivalent guarantees for the issue and inspection" of GIs is a clear reference to the conditions in Article 12(1). There is no recital referring to the possibility of GIs located in any other third countries which do not satisfy these conditions.
7.70.
The preamble to the April 2003 amending Regulation, which modified Article 12 and inserted a detailed procedure for applications and objections from third countries in Articles 12a through 12d, sets out the justification for the amendments as follows:

"(8) The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement 1994, contained in Annex 1C to the Agreement establishing the World Trade Organisation contains detailed provisions on the existence, acquisition, scope, maintenance and enforcement of intellectual property rights.

(9) The protection provided by registration under Regulation (EEC) No 2081/92 is open to third countries' names by reciprocity and under equivalence conditions as provided for in Article 12 of that Regulation. That Article should be supplemented so as to guarantee that the Community registration procedure is available to the countries meeting those conditions.

(10) Article 7 of Regulation (EEC) No 2081/92 specifies how objections are to be made and dealt with. To satisfy the obligation resulting from Article 22 of the TRIPS Agreement it should be made clear that in this matter nationals of WTO member countries are covered by these arrangements and that the provisions in question apply without prejudice to international agreements, as provided for in Article 12 of the said Regulation. (...)"99

7.71.
Paragraph 8 recalls the subject-matter of the TRIPS Agreement without elaborating on its relevance to the Regulation. This clarifies the reference to Article 22 of the TRIPS Agreement in paragraph 10 but it is not clear whether it also relates to paragraph 9. In any event, on the European Communities' later interpretation, the TRIPS Agreement is not relevant to the WTO-consistency of the conditions provided for in Article 12, as referred to in paragraph 9. Rather, the European Communities submits that GATT 1994 ensures their WTO-consistency. GATT 1994 is not recited in the preamble.
7.72.
Paragraph 9 contains no qualifier referring to WTO Members, which appears to confirm the position that the conditions in Article 12(1) apply to the availability of protection of GIs located in all third countries and that the registration procedure in Articles 12a and 12b is not available for GIs located in WTO Members that do not satisfy those conditions.
7.73.
Paragraph 10 includes the phrase "without prejudice to international agreements, as provided for in Article 12", but it only relates to the right of objection granted to WTO Members' nationals. This is a clear reference to Articles 12b(2) and 12d(1), which were inserted by the amending Regulation. It can be noted that they are the only two provisions in the current version of the Regulation that expressly refer to a "WTO Member", where they also distinguish a WTO Member from a third country recognized under Article 12(3).
7.74.
In the Panel's view, the meaning and content of these aspects of the Regulation, together with the amending Regulation, are sufficiently clear on their face for the United States to have discharged its burden of proof of establishing that, under the Regulation "as such", the availability of protection for GIs located in WTO Members is contingent upon satisfaction of the conditions set out in Article 12(1) and recognition by the Commission under Article 12(3).100
7.75.
There is no supporting evidence of the meaning of these aspects of the Regulation in the form of an interpretation of the relevant provisions by the European Court of Justice or any other domestic court.101 This is partly explained by the facts that no requests for registration of foreign GIs have been made under the Regulation and that Articles 12a through 12d were inserted only recently, in April 2003.
7.76.
The United States also presents evidence consisting of various statements by executive authorities of the European Communities which contain interpretations of the Regulation. The Panel considers that such statements can be useful as, objectively, a WTO Member is normally well placed to explain the meaning of its own domestic law.102 However, the usefulness of any particular statement will depend on its contents and the circumstances in which it was made. The Panel has weighed the evidence and considers that one statement in particular, in light of the clarity of its contents and the official capacity in which it was delivered, is highly relevant to the issue at hand.
7.77.
In a lengthy statement to the Council for TRIPS in September 2002 (prior to the insertion of Articles 12a through 12d), the European Communities specifically responded to the following view expressed by a group of Members, including the United States:

"[U]nder the current EC regulations, the EC does not appear to provide protection for non‑EC geographical indications (i.e., place names of other WTO Members), except on the basis of bilateral agreements, or if the EC has determined that a country has a system for geographical indications that is equivalent to the detailed system of the EC."103

7.78.
The European Communities introduced the relevant part of its response as follows:

"(...) I would like to address one issue that is raised regarding the fact that the EU register for GIs on foodstuffs does not allow the registration of foreign GI unless it is determined that a third country has an equivalent or reciprocal system of GI protection."104

7.79.
The Panel notes that the European Communities was emphatic at that time that registration systems should primarily be aimed at domestic GIs and it quoted the legislation of several other WTO Members which allegedly do not register foreign GIs without an international agreement.105 This statement by the European Communities in September 2002 to the Council for TRIPS therefore appears to support the United States' interpretation of the Regulation on its face.
7.80.
The European Communities argues that the interpretation set forth in its September 2002 statement to the Council for TRIPS "is not incompatible with the text of Regulation 2081/92 as in force at the time it was made or with the statements of the EC in the present case". In its view, its intention at that time was not primarily to explain the EC system for the protection of geographical indications and its statement did not take account of amendments made in April 2003.
7.81.
In the Panel's view, the European Communities' September 2002 statement was very clear in its interpretation of the relevant point of the Regulation. Further, nothing in the April 2003 amending Regulation appears to render that statement incompatible with the current version of the Regulation. In fact, the Panel's examination of the insertion of Article 12(3) and Articles 12a through 12d confirms that the conditions in Article 12(1) remain applicable on the same terms.
7.82.
The United States also refers to the explanation of the amendments given by the European Commission at the time it proposed them, in March 2002. The Panel considers that this evidence corroborates the previous statement because of the clarity of its contents and the capacity in which it was made. In a press release, the Commission explained that, in order to comply with the TRIPS Agreement, it proposed to extend the right of objection to certain other WTO Member country nationals and further stated:

"Beyond mere TRIPS consistency, the Commission proposes important amendments designed to promote the EU system of denominations of origin as a model to the rest of the world. The driving idea behind is the wish to improve protection of European quality products also outside the EU. As the EU cannot force non-EU countries to do so, they would be invited to do so on a 'reciprocal basis'. If a non-EU country introduced an 'equivalent system' including the right of objection for the EU and the commitment to protect EU names on their territory, the EU would offer a specific protection to register their products for the EU market."106

The references to a reciprocal basis and an equivalent system are clear references to the conditions in Article 12(1) of the Regulation.107

7.83.
The Panel notes that this interpretation is further corroborated by a letter from Commissioner Lamy to the United States Trade Representative in January 2003, as follows:

"While it is true that US GIs cannot be registered in the EU, this does not mean that they are not protected! Any US GI can:

(1) be registered as a certification trademark (...)

(2) get protection without registration by invoking before any tribunal in the EU Article 2(1) of Directive 2000/13 on labelling (...)

(3) invoke the unfair competition rules of the Member States (...)"108

7.84.
In its submissions to the Panel, the European Communities rejects that interpretation and submits that, due to the introductory phrase of Article 12(1) of the Regulation, "[w]ithout prejudice to international agreements", the conditions in Article 12(1) do not apply to the availability of protection for GIs located in WTO Members. It refers to a statement it made to the Council for TRIPS in June 2004 in the days before the first substantive meeting of this Panel109 and a second edition of the Commission's Guide to the Regulation published in August 2004 in the days prior to the second substantive meeting of this Panel.110 It advises that "[t]he guide was not prepared in connection with the Panel proceedings".111
7.85.
The Panel recalls its reasoning in paragraph 7.65 above, and reiterates its view that, even if the phrase "[w]ithout prejudice to international agreements" had the effect of subjecting the conditions in Article 12(1) to the terms of GATT 1994 or the TRIPS Agreement, those agreements do not contain a procedure for applications and registration for GIs located in all WTO Members. WTO Members would still have to satisfy the conditions in Article 12(1) in order for their GIs to gain access to the procedure in Articles 12a and 12b.
7.86.
The European Communities admits that this would be a "nonsensical result".112 However, it is unable to provide a satisfactory explanation as to how this result could be avoided in light of the wording of Article 12a, which begins "[i]n the case provided for in Article 12(3)". The European Communities points out that Article 12(3) refers to the conditions in Article 12(1) and since, in its view, those conditions do not apply to WTO Members, the procedure in Article 12(3) and the reference in Article 12a do not apply to them either.113
7.87.
The Panel agrees that Article 12(3) provides for a Commission decision on whether a third country satisfies the conditions in Article 12(1) and accepts that, if those conditions do not apply to a third country, there would be no relevant decision under Article 12(3). Yet this does not alter the text of Article 12a which applies "[i]n the case provided for in Article 12(3)". Article 12a does not appear, on its face, to apply to the registration of a GI located in a third country, including a WTO Member, which is not recognized under Article 12(3). For these reasons, the Panel is not persuaded that the European Communities' interpretation is correct.
7.88.
It is not necessary for the purposes of this dispute to determine which are the precise international agreements covered by the phrase "[w]ithout prejudice to international agreements". It suffices to note that there is a plausible alternative interpretation that it refers to bilateral agreements under which the European Communities would protect specific GIs.114 The European Communities does not exclude this, but argues that there is no reason why only such specific agreements should be covered.115 There are currently no such bilateral agreements for agricultural products and foodstuffs, although one has been foreshadowed in a joint declaration with Switzerland.116
7.89.
In any event, the Panel is not persuaded by the European Communities' explanations during this Panel proceeding of the phrase "[w]ithout prejudice to international agreements" as used in Article 12(1) of the Regulation. At the first substantive meeting, in support of its first defence, it provided the following explanation of that phrase:

"(...) Such international agreements include the WTO Agreements. This is made clear by the 8th recital of Regulation 692/2003, which amended the procedures for the registration of non-EC geographical indications, and in this context took specific account of the provisions of the TRIPS.

"WTO Members are obliged to provide protection to geographical indications in accordance with Section 3 of Part II and the general provisions and basic principles of the TRIPS Agreement. For this reason, Article 12 (1) and (3) of Regulation 2081/92 do not apply to WTO Members. (...)"117

7.90.
This explanation was also reflected in a June 2004 statement that the European Communities made to the Council for TRIPS118 and the August 2004 edition of the Commission's Guide to the Regulation119.
7.91.
At the same time, the European Communities' second defence was that the conditions in Article 12(1) of the Regulation were not inconsistent with the national treatment obligations in the TRIPS Agreement, essentially because they discriminate according to the location of GIs and not according to the nationality of persons with rights in relation to GIs.120
7.92.
It was not clear how these two defences could be reconciled. If the first defence implied that the conditions did not apply because they would prejudice the European Communities' national treatment obligations under the TRIPS Agreement, it would have contradicted the second defence that these conditions were not inconsistent with the national treatment obligations in the TRIPS Agreement. The Panel sought clarification from the European Communities by posing the question "does the EC contest that equivalence and reciprocity conditions such as those under Article 12(1) and (3) of Regulation (EC) No. 2081/92, if applied to other WTO Members, would be inconsistent with the national treatment obligations in the TRIPS Agreement and/or Article III:4 of the GATT 1994?". The European Communities declined to give a specific answer to the Panel's question and concluded as follows:

"As regards the specific conditions contained in Article 12 (1) of Regulation 2081/92, the EC has already confirmed that it does not apply these to WTO Members. For this reason, the EC considers that the question whether these conditions are inconsistent with the national treatment obligations of the TRIPS Agreement and the GATT does not arise."121

7.93.
The United States then submitted that the European Communities had decided not to defend the conditions in Article 12(1) of the Regulation and that it had apparently conceded that any such requirement was contrary to national treatment and MFN obligations.122
7.94.
The Panel again sought clarification at the second substantive meeting, by asking which precise obligations under an international agreement would be prejudiced by the application of the specific conditions in Article 12(1) of the Regulation to WTO Members. The European Communities responded that it was its obligations under Article III:4 of GATT 1994, but not Article 3.1 of the TRIPS Agreement, because the Regulation did not involve any discrimination between nationals. It later confirmed this in writing.123 Therefore, to the extent that the European Communities' explanation of the phrase "[w]ithout prejudice to international agreements" as used in Article 12(1) of the Regulation relies on the TRIPS Agreement, the European Communities has expressly denied that the phrase refers to its own obligations and the Panel does not consider that possible explanation further.124
7.95.
At this time, the European Communities' explanation of the phrase "[w]ithout prejudice to international agreements" as used in Article 12(1) of the Regulation relies on GATT 1994. In light of the European Communities' analysis that this phrase ensures that "should a conflict between the two acts or provisions occur, then the act or provision to which the 'without prejudice' reference is made prevails"125, it is clear that this explanation depends on the view that the equivalence and reciprocity conditions are inconsistent with the European Communities' obligations under Article III:4 of GATT 1994. However, this is difficult to reconcile with the European Communities' earlier view that the question whether these conditions are inconsistent with the national treatment obligations of GATT does not arise, quoted at paragraph 7.92 above. It was also omitted from the earlier explanation that the conditions did not apply because of obligations under the TRIPS Agreement, quoted at paragraph 7.89 above. Further, the evidence submitted by the European Communities provides no additional support for this explanation, as the amending Regulation recites the TRIPS Agreement but not GATT 1994, and the evidence identified at paragraph 7.90 above also reflects the explanation quoted at paragraph 7.89 above.126
7.97.
The Panel takes note that there are various executive authorities involved in the implementation of the Regulation, including representatives of EC member States. Article 15 of the Regulation provides for a regulatory procedure under which the Commission shall be assisted by a regulatory committee composed of the representatives of the EC member States and chaired by the representative of the Commission, who does not vote. The representative of the Commission shall submit to the committee a draft of the measures to be taken. The committee shall deliver its opinion on the draft within a time-limit by qualified majority voting. The Commission shall adopt the measures envisaged if they are in accordance with the opinion of the committee. If the measures are not in accordance with the opinion of the committee, or if no opinion is delivered, the Commission shall, without delay, submit to the Council a proposal relating to the measures to be taken and shall inform the European Parliament. The Council may act by qualified majority on the proposal within three months. If the Council indicates by qualified majority that it opposes the proposal, the Commission shall re-examine it. If the Council neither adopts the proposed measure nor indicates its opposition within three months, the Commission shall adopt the proposed measure.127
7.99.
The parties have presented evidence with respect to the approach that would be taken by the European Court of Justice if the executive authorities registered a GI that was not the subject of an international agreement and that was located in a third country that did not satisfy the conditions in Article 12(1) of the Regulation. The European Communities submits that, according to the settled case law of the European Court of Justice:

"Community legislation must, so far as possible, be interpreted in a manner that is consistent with international law, in particular where its provisions are intended specifically to give effect to an international agreement concluded by the Community."131

7.100.
The Panel is not persuaded that it is possible to interpret the relevant aspects of the Regulation in the manner advanced by the European Communities in these proceedings, for the reasons already given. The Panel also notes that the basic Regulation does not indicate that its provisions are intended specifically to give effect to an international agreement concluded by the Community. Whilst the April 2003 amending Regulation recites the TRIPS Agreement, it would only seem to do so to justify extending the right of objection to nationals of WTO Members. In any case, the European Communities' later explanation is that the interpretation must take account of GATT 1994, which is not mentioned at all.
7.101.
Article 11 of the DSU requires that "a panel should make an objective assessment of the matter before it, including an objective assessment of the facts of the case...". In our view, our duty to make an objective assessment prohibits us from accepting the interpretation of the applicability of the conditions in Article 12(1) of the Regulation presented by the European Communities in this proceeding, for the reasons set out above.
7.102.
Therefore, the Panel concludes that the United States has made a prima facie case that the equivalence and reciprocity conditions in Article 12(1) of the Regulation apply to the availability of protection for GIs located in third countries, including WTO Members. In other words, the registration procedure in Articles 12a and 12b is not available for GIs located in third countries, including WTO Members, that do not satisfy the conditions in Article 12(1). The European Communities has not succeeded in rebutting that case.
7.103.
The Panel has evaluated the European Communities' interpretation of the applicability of the equivalence and reciprocity conditions and not found it reflected in the text of the Regulation. Had this interpretation been reflected in the text of the Regulation, the Panel could have reached a different conclusion which would have rendered it unnecessary to continue with an examination of the consistency of those conditions with the provisions of the covered agreements.

(b) National treatment under the TRIPS Agreement

(i) Main arguments of the parties

7.104.
The United Statesclaims that the Regulation is inconsistent with Article 3.1 of the TRIPS Agreement and Article 2(1) of the Paris Convention (1967), as incorporated by Article 2.1 of the TRIPS Agreement, because it imposes conditions of reciprocity and equivalence on the availability of protection. National treatment requires protection of the intellectual property of other Members' nationals regardless of how those other Members treat their own nationals. National treatment does not allow a Member to require that other Members adopt particular standards or procedural rules as a condition for protecting their nationals' intellectual property. This is underscored by Article 1.1 of the TRIPS Agreement which provides that Members are not obligated to select any particular means of implementation over another. There is a wide variety of mechanisms used to implement the GI obligations and one Member cannot require a particular method of implementation as a condition for protecting the GI rights of other Members' nationals.132
7.105.
The United States argues that the conditions in Article 12(1) of the Regulation apply to nationals because EC nationals are permitted to register their home-based EC GIs but U.S. nationals (and nationals of most other WTO Members) are currently not able to register their home-based U.S. GIs.133 The distinction between the location of a geographical area and the nationality of the right holder is not meaningful as right holders are overwhelmingly nationals of the place where their respective GIs are located. There is an obvious link and close relationship between the nationality of the persons who would seek GI protection for agricultural products and foodstuffs and the territory of the Member in which they are growing or producing such products, which is supported by data on the applicants for certification marks in the United States.134 The European Communities is a "separate customs territory" within the meaning of footnote 1 to the TRIPS Agreement and, as such, its "nationals" are persons domiciled in its territory or legal persons who have a real and effective industrial and commercial establishment in its territory.135 As a practical matter, any commercial entity growing agricultural products or processing foodstuffs in an EC member State will set up a legal entity under the laws of that EC member State for that purpose.136 The Regulation protects indications of source, for which the relevant persons are "interested parties" defined in Article 10 of the Paris Convention (1967) to include any locally established producer, regardless of nationality.137 The April 2003 amending Regulation itself equates nationals with persons resident and established in a Member with respect to the right of objection.138
7.106.
The United States argues that the conditions in Article 12(1) of the Regulation accord neither the same protection nor no less favourable treatment to non-EC nationals because they are currently unable to register their home-based GIs. The only way that they might be able to register home-based GIs in the European Communities is for their countries to grant reciprocal GI protection for agricultural products and foodstuffs from the European Communities and adopt an equivalent system of GI protection. The explicit purpose of the Regulation is to bestow significant commercial and competitive advantages through the registration of GIs, including higher profits, the right to use a label, rights to prevent uses by third parties, enforcement and guarantees against the GI becoming generic.139 This amounts to a denial of "effective equality of opportunities" with respect to the protection of GIs.140
7.107.
The United States argues that jurisprudence on Article III:4 of GATT 1994 offers useful guidance in the interpretation of Article 3.1 of the TRIPS Agreement. The broad and fundamental purpose of Article III is to avoid protectionism in the application of tax and regulatory measures. This is easily extrapolated to the TRIPS Agreement in which the national treatment obligation is intended to avoid protectionism with respect to the protection of intellectual property rights. Like the measures considered in previous disputes under Article III, the Regulation at issue in this dispute has a plain protective structure in that it systematically denies advantages to nationals producing in their country of nationality where that country does not satisfy the conditions of reciprocity and equivalence.141
7.108.
The United States argues that the obligations in Article III:4 of GATT 1994 are separate from those in Article 3.1 of the TRIPS Agreement and Article 2 of the Paris Convention (1967) and that the European Communities must satisfy both sets of obligations.142 The lack of a general exception like Article XX of GATT 1994 is not relevant to whether there is de facto discrimination under the TRIPS Agreement or to the interpretation of Article 3 of the TRIPS Agreement.143
7.109.
The United States also claims that the Regulation imposes a requirement of establishment in the European Communities which is inconsistent with Article 2(2) of the Paris Convention (1967) because a foreign national can only register a GI for a product if he is producing or processing it in the European Communities.144
7.110.
The European Communities responds that this claim must fail. Its first defence is that it does not, in fact, apply the conditions in Article 12(1) of the Regulation to geographical areas located in WTO Members. That defence has been considered in the previous sub-section.
7.111.
The European Communities does not contest that national treatment under the TRIPS Agreement applies to more extensive protection granted in respect of intellectual property rights addressed in the TRIPS Agreement.145
7.112.
The European Communities argues that the conditions in Article 12(1) of the Regulation do not depend on nationality. The Regulation sets out two procedures for registration: one for geographical areas located within the European Communities and one for those located outside the European Communities. Whether the geographical area is located within or outside the European Communities is in no way linked to the question of the nationality of the producers concerned.146 This may concern the origin of the product but has nothing to do with the nationality of the producer, which is simply of no relevance for the registration of the GI.147 There are no legal requirements which ensure that applicants for GIs for geographical areas located in the European Communities are always, or usually, EC nationals.148 There is no reason why a foreign national cannot produce products in accordance with a product specification in a GI registration located in the European Communities, and there are examples of foreign companies which have invested in the European Communities in this way.149 If an applicant or user sets up a legal entity in the geographical area, that is simply a practical consequence of the fact that products must be produced in accordance with product specifications.150 Nationality is determined by the laws of each State and is not simply a matter of domicile or establishment, which is highlighted by the specific rules in Article 3 of the Paris Convention (1967) and footnote 1 to the TRIPS Agreement which would otherwise be unnecessary.151 The European Communities is not a "separate customs territory" within the meaning of footnote 1 to the TRIPS Agreement.152 The meaning of "interested parties" in Article 10(2) of the Paris Convention (1967) is inapplicable in Article 22 of the TRIPS Agreement.153 Nationality is not linked to the points of attachment but must be given a uniform meaning for all intellectual property rights.154 The Regulation does not require any comparison of nationals because it does not contain any discrimination on the basis of nationality.155
7.113.
The European Communities argues that the existence of different procedures which apply according to location of geographical areas is not sufficient to show less favourable treatment but rather there must be a substantive difference between those provisions which entails less favourable treatment. A measure would have to modify the conditions regarding the protection of intellectual property rights within the meaning of the TRIPS Agreement to the detriment of foreign nationals.156
7.114.
The European Communities argues that the jurisprudence on Article III:2 of GATT 1994 is not relevant to the present dispute because of differences between paragraphs 2 and 4 of Article III and between Article III and Article 3.1 of the TRIPS Agreement. There is no general concept of discrimination common to all WTO agreements. There has never been a de facto application of Article 3.1 and the concept of conditions of competition is not easily transposable to the TRIPS Agreement. Whilst it may be possible under certain circumstances that measures which are neutral on their face accord less favourable treatment to nationals, the Panel should take account of the following: (1) the present case relates primarily to the origin of goods which is already dealt with more appropriately in the context of Article III:4 of GATT 1994, not the TRIPS Agreement; (2) de facto discrimination is a notion closely related to preventing circumvention of national treatment obligations, which does not exist when the specific issue is dealt with in other national treatment provisions, such as those of GATT; and (3) the national treatment provisions of GATT and the TRIPS Agreement should not systematically overlap. In addition, the TRIPS Agreement does not contain any provision corresponding to Article XX of GATT 1994 and it would not seem appropriate for a measure justified on the basis of Article XX to be found incompatible with the covered agreements on the basis of a de facto application of TRIPS national treatment.157

(ii) Main arguments of third parties

7.115.
Brazilsubmits that the equivalence and reciprocity conditions in the Regulation are inconsistent with national treatment under Article 3.1 of the TRIPS Agreement. In most cases under the Regulation, discrimination according to geographical areas is discrimination between nationals.158
7.116.
Canadasubmits that the equivalence and reciprocity conditions in the Regulation are inconsistent with national treatment under Articles 2.1 and 3.1 of the TRIPS Agreement. Discrimination on the basis of geographical area discriminates on the basis of nationality because of the "simple and incontestable" reality that EC nationals are likely to register for protection of GIs located in the European Communities and non-EC nationals are likely to register for protection of GIs located outside the European Communities. The explicit requirement that the physical production of a good that qualifies for a GI take place in the area indicated by the GI, means that an applicant for a GI located in the European Communities will, in all probability be a national of an EC member State. The treatment of "nationals" under the TRIPS Agreement extends de jure to geographical area.159
7.117.
China considers that "nationals" within the meaning of the TRIPS Agreement includes natural persons who are domiciled, or legal persons who have a real and effective industrial and commercial establishment, in that Member.160
7.118.
Colombiaconsiders that any distinction that in any way identifies the GIs of the European Communities clearly entails a violation of national treatment obligations.161
7.119.
India considers that the only valid interpretation of "treatment with regard to the protection " in Article 3.1 of the TRIPS Agreement is that no less favourable treatment to nationals of other WTO Members cannot be provided unless no less favourable treatment is also provided to the GIs for which they apply, whether located in the European Communities or in other WTO Members. The only available exceptions are found in Article 3.2.162
7.120.
Mexicoconsiders that the equivalence and reciprocity conditions prevent nationals of other WTO Members enjoying the protection afforded by the Regulation, which is contrary to the national treatment principle in Article 3.1 of the TRIPS Agreement.163
7.121.
New Zealandsubmits that the term "nationals" clearly has a geographical connotation in the context of the TRIPS Agreement. Article 3 of the Paris Convention (1967) sets out a criterion for eligibility for protection to which the definition of "nationals" in Article 1.3 of the TRIPS Agreement refers. Footnote 1 to Article 1.3 of the TRIPS Agreement provides further support. The definition of an applicant in the Regulation includes persons according to their location. The most favourable treatment accorded to EC nationals should be compared with that received by WTO Member nationals. "Less favourable treatment" requires not only a difference in applicable laws but some disadvantage as a result of that difference. At worst, the difference means that the benefits of registration are entirely unavailable. At best, it means that other WTO Member nationals are subject to "extra hurdles" and disadvantaged. As a result, they do not have the same opportunities to protect their GIs through registration as do EC nationals. The individual's right to apply for protection is conditioned on factors over which the applicant has no control. The advantages granted by registration include those under Article 13 and, according to the preamble, higher incomes.164
7.122.
Chinese Taipei submits that the equivalence and reciprocity conditions violate the national treatment obligation in Article 3.1 of the TRIPS Agreement and Article 2(1) of the Paris Convention (1967). It recalls that national treatment under the TRIPS Agreement applies to "nationals" and that the European Communities compares EC nationals and non-EC nationals with GIs located in the European Communities. It treats them completely independently of EC nationals and non-EC nationals with GIs located outside the European Communities. This essentially is an argument that the European Communities can establish a separate set of rules for, and discriminate against, non-EC GIs as it wishes. Chinese Taipei submits that the Panel should examine whether any person, whether an European Communities or a non-EC national, with a GI, whether located in the European Communities or outside the European Communities, receives treatment less favourable than that accorded to an EC national with a GI located in the European Communities. Footnote 1 to the TRIPS Agreement applies to the European Communities as a separate customs territory.165

(iii) Consideration by the Panel

National treatment obligations in the TRIPS Agreement
7.123.
These claims are made under two national treatment obligations: one found in Article 3 of the TRIPS Agreement, which forms part of the text of that agreement, and the other found in Article 2 of the Paris Convention (1967) as incorporated by Article 2.1 of the TRIPS Agreement. The Panel will first consider the claim under Article 3.1 of the TRIPS Agreement.
7.124.
Article 3.1 of the TRIPS Agreement provides as follows:

"1. Each Member shall accord to the nationals of other Members treatment no less favourable than that it accords to its own nationals with regard to the protection of intellectual property, subject to the exceptions already provided in, respectively, the Paris Convention (1967), the Berne Convention (1971), the Rome Convention or the Treaty on Intellectual Property in Respect of Integrated Circuits...." [footnote 3 omitted]

7.125.
Two elements must be satisfied to establish an inconsistency with this obligation: (1) the measure at issue must apply with regard to the protection of intellectual property; and (2) the nationals of other Members must be accorded "less favourable" treatment than the Member's own nationals. The Panel will address each of these elements in turn. The parties do not agree on the meaning of "nationals" for the purposes of this claim. The Panel will therefore address that issue in the course of its consideration of the second element of this claim.

Protection of intellectual property

7.126.
The national treatment obligation in Article 3 of the TRIPS Agreement applies "with regard to the protection of intellectual property". Footnote 3 provides an inclusive definition of the term "protection" as used in Articles 3 and 4. It reads as follows:

"For the purposes of Articles 3 and 4, 'protection' shall include matters affecting the availability, acquisition, scope, maintenance and enforcement of intellectual property rights as well as those matters affecting the use of intellectual property rights specifically addressed in this Agreement."

7.127.
Article 1.2 explains the term "intellectual property":

"2. For the purposes of this Agreement, the term 'intellectual property' refers to all categories of intellectual property that are the subject of Sections 1 through 7 of Part II."

7.128.
Turning to the Regulation, Article 12(1) refers to how the Regulation "may apply", which is a reference to the availability of intellectual property rights in relation to "designations of origin" and "geographical indications", as defined in the Regulation. It is not disputed that "designations of origin" and "geographical indications", as defined in the Regulation, fall within the category of "geographical indications", the subject of Section 3 of Part II, and therefore part of a category of intellectual property within the meaning of Article 1.2 of the TRIPS Agreement.
7.129.
Therefore, this claim concerns the "protection" of intellectual property, as clarified in footnote 3 to the TRIPS Agreement, within the scope of the national treatment obligation in Article 3 of that Agreement.
7.130.
It is not necessary to show that the Regulation implements the minimum standards in Part II of the TRIPS Agreement for the purposes of these claims. National treatment is required with regard to the protection of intellectual property, even where measures provide a higher level of protection.

Less favourable treatment accorded to the nationals of other Members

Less favourable treatment

7.131.
The Panel now examines the second element of this claim which is whether the nationals of other Members are accorded less favourable treatment than the European Communities' own nationals. It is useful to recall that Article 3.1 of the TRIPS Agreement combines elements of national treatment both from pre-existing intellectual property agreements and GATT 1994.166 Like the pre-existing intellectual property conventions, Article 3.1 applies to "nationals", not products. Like GATT 1994, Article 3.1 refers to "no less favourable" treatment, not the advantages or rights that laws now grant or may hereafter grant, but it does not refer to likeness. This combination of elements is reflected in the preamble to the TRIPS Agreement which explains the purpose of the "basic principles" in Articles 3 and 4 (a term highlighted in the title of Part I) as follows:

"Recognizing, to this end, the need for new rules and disciplines concerning:

(a) the applicability of the basic principles of GATT 1994 and of relevant international intellectual property agreements or conventions;"

7.132.
The "no less favourable" treatment standard set out in the first sentence of Article 3.1 of the TRIPS Agreement is subject to certain specific exceptions, some of them found in the pre-existing intellectual property conventions. None of the exceptions in Article 3.1 and 3.2 are relevant to this dispute.167 Where these exceptions and limitations do not apply, the language of the basic obligation in the first sentence of Article 3.1 is very broad, referring to treatment that is "no less favourable".
7.133.
We recall that the Panel in US – Section 211 Appropriations Act, in a finding with which the Appellate Body agreed168, found that the appropriate standard of examination under Article 3.1 of the TRIPS Agreement is that enunciated by the GATT Panel in US – Section 337. That GATT Panel made the following findings on the "no less favourable" treatment standard under Article III:4 of GATT 1947:

"The words 'treatment no less favourable' in paragraph 4 call for effective equality of opportunities for imported products in respect of the application of laws, regulations and requirements affecting the internal sale, offering for sale, purchase, transportation, distribution or use of products. This clearly sets a minimum permissible standard as a basis."169

7.134.
Therefore, the Panel will examine whether the difference in treatment affects the "effective equality of opportunities" between the nationals of other Members and the European Communities' own nationals with regard to the "protection" of intellectual property rights, to the detriment of nationals of other Members.
7.135.
The interpretation of the "no less favourable" treatment standard under other covered agreements may be relevant in interpreting Article 3.1 of the TRIPS Agreement, taking account of its context in each agreement including, in particular, any differences arising from its application to like products or like services and service suppliers, rather than to nationals.170
7.136.
Under Article III:4 of GATT 1994, the Appellate Body in US – FSC (Article 21.5 – EC) has explained its approach to the examination of whether measures affecting the internal sale of products accord "treatment no less favourable" as follows:

"The examination of whether a measure involves 'less favourable treatment' of imported products within the meaning of Article III:4 of the GATT 1994 must be grounded in close scrutiny of the 'fundamental thrust and effect of the measure itself'. This examination cannot rest on simple assertion, but must be founded on a careful analysis of the contested measure and of its implications in the marketplace. At the same time, however, the examination need not be based on the actualeffects of the contested measure in the marketplace."171

7.137.
Similarly, in the present dispute, the Panel considers it appropriate to base its examination under Article 3.1 of the TRIPS Agreement on the fundamental thrust and effect of the Regulation, including an analysis of its terms and its practical implications. However, as far as the TRIPS Agreement is concerned, the relevant practical implications are those on opportunities with regard to the protection of intellectual property. The implications in the marketplace for the agricultural products and foodstuffs in respect of which GIs may be protected are relevant to the examination under Article III:4 of GATT 1994, considered later in this report.
7.138.
The parties disagree on whether the equivalence and reciprocity conditions in Article 12(1) of the Regulation apply to GIs located in other WTO Members outside the European Communities. The Panel recalls its finding at paragraph 7,102 that they do so apply.
7.139.
Although the parties disagree on whether the equivalence and reciprocity conditions in Article 12(1) of the Regulation discriminate in a manner inconsistent with the covered agreements, it is not disputed that those conditions accord less favourable treatment to persons with interests in the GIs to which those conditions apply.172 The Panel considers that those conditions modify the effective equality of opportunities to obtain protection with respect to intellectual property in two ways. First, GI protection is not available under the Regulation in respect of geographical areas located in third countries which the Commission has not recognized under Article 12(3). The European Communities confirms that the Commission has not recognized any third countries. Second, GI protection under the Regulation may become available if the third country in which the GI is located enters into an international agreement or satisfies the conditions in Article 12(1). Both of those requirements represent a significant "extra hurdle" in obtaining GI protection that does not apply to geographical areas located in the European Communities.173 The significance of the hurdle is reflected in the fact that currently no third country has entered into such an agreement or satisfied those conditions.
7.140.
Accordingly, the Panel finds that the equivalence and reciprocity conditions modify the effective equality of opportunities with respect to the availability of protection to persons who wish to obtain GI protection under the Regulation, to the detriment of those who wish to obtain protection in respect of geographical areas located in third countries, including WTO Members. This is less favourable treatment.

Nationals of other Members

7.141.
The issue for the Panel is how the less favourable treatment accorded under the Regulation with respect to the availability of protection affects the treatment accorded to the nationals of other Members and that accorded to the European Communities' own nationals for the purposes of Article 3.1 of the TRIPS Agreement. Article 1.3 defines "nationals of other Members" in order to determine the persons to whom Members shall accord treatment, which includes national treatment.174 It provides as follows:

"3. Members shall accord the treatment provided for in this Agreement to the nationals of other Members. In respect of the relevant intellectual property right, the nationals of other Members shall be understood as those natural or legal persons that would meet the criteria for eligibility for protection provided for in the Paris Convention (1967), the Berne Convention (1971), the Rome Convention and the Treaty on Intellectual Property in Respect of Integrated Circuits, were all Members of the WTO members of those conventions. (...)" [footnote 1 omitted]

7.142.
In respect of the intellectual property rights relevant to this dispute, it is not disputed that the criteria for eligibility for protection that apply are those found in the Paris Convention (1967). Articles 2 and 3 of the Paris Convention (1967) provide how nationals and persons assimilated to nationals are to be treated. In the Panel's view, these are "criteria for eligibility for protection" for the purposes of the TRIPS Agreement.175
7.143.
Articles 2 and 3 of the Paris Convention (1967) refer to "nationals" without defining that term. Article 3 of the Paris Convention (1967) provides for the assimilation of certain persons to nationals as follows:

"Nationals of countries outside the Union who are domiciled or who have real and effective industrial or commercial establishments in the territory of one of the countries of the Union shall be treated in the same manner as nationals of the countries of the Union."176

7.144.
The rule in Article 3 of the Paris Convention (1967) only applies to nationals of countries outside the Paris Union. According to Article 1.3 of the TRIPS Agreement, these criteria shall be understood as if "all Members of the WTO" were members of that Convention. Therefore, for the purposes of the TRIPS Agreement, that rule of assimilation only applies to persons that are nationals of a country that is not a WTO Member. It does not apply to nationals of other WTO Members, such as the United States. Therefore, it does not mean that all persons who have a domicile or a real and effective industrial and commercial establishment in a WTO Member are necessarily nationals of that WTO Member for the purposes of the TRIPS Agreement.
7.145.
Otherwise, the Paris Convention (1967) contains no common rules on the meaning of "nationals". It can be noted that the original Paris Convention of 1883 appeared to use the term "subjects and citizens" and "nationals" interchangeably. The phrase "subjects and citizens" was replaced with "nationals" in Articles 2 and 3 in the Hague Act of 1925 without, apparently, changing the scope of the Convention.177
7.146.
A leading commentator on the Paris Convention (1967) explains the practice under that Convention as follows:

"With respect to natural persons, nationality is a quality accorded or withdrawn by the legislation of the State whose nationality is claimed. Therefore, it is only the legislation of that State which can define the said nationality and which must be applied also in other countries where it is invoked.

"With respect to legal persons, the question is more complicated because generally no 'nationality' as such is granted to legal persons by existing legislations. Where these legal persons are the State themselves, or State enterprises, or other bodies of public status, it would be logical to accord to them the nationality of their country. With regard to corporate bodies of private status, such as companies and associations, the authorities of the countries where application of the Convention is sought will have to decide on the criterion of 'nationality' which they will employ. This 'nationality' can be made dependent upon the law according to which these legal persons have been constituted, or upon the law of their actual headquarters, or even on other criteria. Such law will also decide whether a legal person or entity really exists." [original footnote omitted]178

7.147.
This is consistent with the position under public international law.179 With respect to the meaning of "nationals of other Members" for the purposes of the TRIPS Agreement, WTO Members have, through Article 1.3 of the TRIPS Agreement, incorporated the meaning of "nationals" as it was understood in the Paris Convention (1967) and under public international law. With respect to natural persons, they refer first to the law of the Member of which nationality is claimed.180 With respect to legal persons, each Member first applies its own criteria to determine nationality.
7.148.
The meaning of "nationals" under public international law is also relevant to the meaning of a Member's "own nationals". Whilst the TRIPS Agreement does not create obligations for a Member to accord treatment to its own nationals, it does refer to the treatment that each Member accords to its own nationals as the benchmark for its obligation to accord national treatment under Article 3.1, as well as under the other national treatment obligations incorporated by reference, including Article 2 of the Paris Convention (1967). To that extent, the way in which a Member defines its own nationals can also be subject to review for the purposes of determining conformity with its national treatment obligations under the TRIPS Agreement.
7.149.
The European Communities has explained to the Panel that, with respect to natural persons, under the domestic law of the European Communities, any person who is a national of an EC member State is a citizen of the European Union and, accordingly, an EC national.181 It has explained that, with respect to legal persons, the domestic law of the European Communities does not contain a specific definition of nationality, but nor does the domestic law of many other WTO Members.182 However, the European Communities informs the Panel that any legal person considered a national under the laws of an EC member State would also be an EC national. The criteria used by the EC member States to determine the nationality of a legal person may vary and include criteria such as the place of incorporation and the place of the seat of the company or a combination of such criteria.183
7.150.
The United States has not challenged the criteria used by the European Communities to determine nationality. The Panel notes that these criteria appear to be the same as those used in public international law.184 Therefore, the Panel can use them to determine which persons are "nationals" under Article 3.1 of the TRIPS Agreement.
7.151.
Turning to the Regulation, it is agreed that it does not, on its face, refer to "nationals". It refers to the location of geographical areas, or GIs. In theory, there may be foreign citizens or corporations who are entitled to use GIs located in the European Communities and obtain protection under the Regulation. The issue for the Panel is to determine the treatment accorded to the nationals of other Members and that accorded to the European Communities' own nationals, when such treatment depends on the location of GIs.

Specific definitions of "nationals"

7.152.
The United States argues that there are specific definitions of "nationals" applicable in this dispute, either of which would identify the nationality of persons with the location of GIs. The first specific definition would apply to the European Communities and the other would apply to GIs. The Panel finds that the following graphic, based on one set out in Chinese Taipei's third party submission, provides a useful framework for its analysis of this issue.

1. 3.
EC national with GI located in the EC EC national with GI located outside the EC
2. 4.
Non-EC national with GI located in the EC Non-EC national with GI located outside the EC

Graphic 1

7.153.
The graphic depicts the four relevant possible combinations of nationality of persons and the location of a GI, each in a separate numbered quadrant. In terms of this graphic, the Panel's conclusion at paragraph 7,102 is that the conditions of reciprocity and equivalence in Article 12(1) of the Regulation apply to the persons in quadrants 3 and 4 only. There is therefore discrimination between the persons in quadrants 1 and 2, on the one hand, and those in quadrants 3 and 4, on the other hand.
7.154.
The United States argues that a special regime to determine nationals applies to the European Communities as a separate customs territory Member of the WTO within the meaning of footnote 1 to Article 1.3 of the TRIPS Agreement. Footnote 1 provides as follows:

"Footnote 1: When 'nationals' are referred to in this Agreement, they shall be deemed, in the case of a separate customs territory Member of the WTO, to mean persons, natural or legal, who are domiciled or who have a real and effective industrial or commercial establishment in that customs territory."185

7.155.
If the European Communities is a "separate customs territory Member of the WTO" within the meaning of footnote 1, references to its "nationals" in the TRIPS Agreement mean all persons, natural or legal, who are domiciled or who have a real and effective industrial or commercial establishment in the European Communities, irrespective of the citizenship of an individual or the nationality of a corporation under public international law. Persons who are entitled to a GI in a particular geographical area within the territory of the European Communities, may correspond to this definition of nationals, even if they are foreign citizens or corporations. This would conflate quadrants 1 and 2, to which conditions of reciprocity and equivalence do not apply, and require any comparison of treatment for the purposes of the national treatment obligation to be made with persons in either or both of quadrants 3 and 4, to whom those additional conditions do apply.
7.156.
The European Communities submits that it is not a separate customs territory Member of the WTO.
7.157.
The Panel notes that the term "separate customs territory" in the text of footnote 1 is qualified by the term "Member of the WTO". The parties refer us to certain interpretative guidance in the WTO Agreement as to the meaning of these terms.
7.158.
The original Members of the WTO are described in Article XI:1 of the WTO Agreement as "[t]he contracting parties to GATT 1947 as of [1 January 1995], and the European Communities". This simply reflects the fact that the European Communities is the only original Member that was not a Contracting Party to GATT 1947, but does not address the issue whether or not it is a separate customs territory Member of the WTO. The voting rules in Article IX:1 of the WTO Agreement reflect the sui generis character of the European Communities among the Members of the WTO.
7.159.
Accession of new Members to the WTO is possible under Article XII of the WTO Agreement, paragraph 1 of which refers to "[a]ny State or separate customs territory possessing full autonomy in the conduct of its external commercial relations and of the other matters provided for in this Agreement and the Multilateral Trade Agreements". It is not disputed that the European Communities is not a State, but it did not accede to the WTO under the terms of Article XII and the terms of that Article are therefore inapplicable to it.
7.160.
The first explanatory note to the WTO Agreement only refers to countries and separate customs territories Members of the WTO.186 The European Communities is not a country, but this note might not be relevant if all references to a "country" in the relevant agreements can be adequately understood in relation to the European Communities.187
7.161.
The second explanatory note to the WTO Agreement provides guidance where an expression in that agreement and the multilateral trade agreements is qualified by the term "national" in the case of a "separate customs territory Member of the WTO".188 Footnote 1 to the TRIPS Agreement is not within the scope of this explanatory note because it uses the word "national" as a noun and not as a qualifying expression. In any case, the explanatory note does not indicate if the European Communities is a separate customs territory Member of the WTO.
7.162.
The Panel considers these provisions inconclusive as regards the question before it and must therefore interpret the term "separate customs territory Member of the WTO" according to the general rule of treaty interpretation. It is not disputed that the European Communities is a customs territory.189 The key word appears to be "separate", which can be defined as follows:

"Put apart, disunite, part, (two or more persons or things, or one from another); detach, disconnect, treat as distinct, (one thing); make a division between (two things)." [emphasis added]190

7.163.
We highlight the definition "treat as distinct, (one thing)", given that a "separate customs territory Member of the WTO" is one thing, and the word "distinct" corresponds to the term used in that phrase in the French and Spanish versions, which are equally authentic.191 It is not disputed that all Members of the WTO are separate, or distinct, from one another. Most Members that are not part of a customs union are a customs territory separate from other customs territories. The word "separate" would be redundant if this is all it meant. Logically, it must indicate a customs territory that is separate from another Member in some other way.
7.164.
The context elsewhere in the WTO Agreement bears this out. The term "separate customs territory" is used in Article XXVI:5 of GATT 1994192, which treats a separate customs territory as a territory for which a GATT Contracting Party, now a WTO Member193, has international responsibility, and is distinguished from a metropolitan territory. It is also found in Article XXXIII of GATT 1994.194
7.165.
The object and purpose of the TRIPS Agreement includes the conferral of intellectual property protection on the nationals of WTO Members. Footnote 1 is a deeming provision for the purposes of nationality. This confirms that the reason for the inclusion of footnote 1 was that separate customs territories do not confer nationality and, hence, a supplementary definition was required.
7.166.
The European Communities does not form a separate part of the territory of a country. Rather, the territory of the European Communities is made up primarily of the territories in Europe, that is, where relevant, the metropolitan territories, of a group of countries, the number of which increased to 25 during this Panel proceeding.195 It is neither a territory part of another country, nor a separate territory for which other WTO Members have international responsibility. The European Communities has informed the Panel that it has a citizenship for natural persons, and, generally speaking, treats legal persons organized under the laws of an EC member State as EC nationals under its domestic law, as described above.196
7.167.
Therefore, the Panel accepts the European Communities' submission that it is not a "separate customs territory Member of the WTO" within the meaning of footnote 1 to the TRIPS Agreement, and finds that its nationals, for the purposes of the TRIPS Agreement, are not defined by that footnote. The Panel would like to stress that its finding is limited solely to footnote 1 of the TRIPS Agreement and is not intended to be a finding of general application for other covered agreements.
7.168.
The United States also argues that the criteria for eligibility for protection in the Paris Convention (1967), as incorporated by Article 1.3 of the TRIPS Agreement, include Article 10(2) of the Paris Convention (1967). It argues that Article 10(2) sets out a specific criterion of eligibility of protection in respect of designations of origin and geographical indications, which defines the "nationals of other Members" in respect of those industrial property rights for the purposes of the TRIPS Agreement. Persons entitled to use a GI in a geographical area in a WTO Member outside the territory of the European Communities may correspond to this definition of nationals of other Members. This argument would conflate quadrants 3 and 4 in the graphic set out earlier, to which the conditions of reciprocity and equivalence apply, and require any comparison of treatment for the purposes of the national treatment obligation to be made with persons in either or both of quadrants 1 and 2, to whom those additional conditions do not apply.
7.169.
The United States observes that the GI obligations in Articles 22 and 23 of the TRIPS Agreement refer to the persons entitled to protection as "interested parties" and that Article 10(2) of the Paris Convention (1967) sets out persons who shall be deemed an "interested party" for the purposes of an obligation related to certain false indications. Article 10(2) refers inter alia to establishment in the locality or country falsely indicated. The United States argues that this provides guidance as to the persons who shall be deemed an "interested party" for the purposes of Articles 22 and 23 of the TRIPS Agreement and, hence, the national treatment obligation in Article 3.1.
7.170.
The Panel accepts that an "interested party" is a person who is entitled to receive protection under Articles 22 and 23 of the TRIPS Agreement. However, in the Panel's view, Article 10(2) of the Paris Convention (1967) does not set out a criterion for eligibility for protection. Article 10(2) is a deeming provision for the term "interested party" used in Article 9(3) of the Paris Convention (1967), as made applicable under Article 10(1). Once a person has qualified as a national, Article 10(2) may provide guidance on whether that person may be treated as an interested party for the purposes of Articles 22 and 23 of the TRIPS Agreement. However, Article 10(2) does not set out a criterion for eligibility for protection under the Paris Convention (1967) for the purposes of Article 1.3 of the TRIPS Agreement.
7.171.
Therefore, the Panel rejects the specific definitions of "nationals" advanced by the United States and confirms its finding at paragraph 7,150 as to the criteria that can be used to determine which persons are "nationals" for the purposes of Article 3.1 of the TRIPS Agreement, for the purposes of this dispute.

Formally identical provisions

7.172.
The issue for the Panel remains that of determining the treatment accorded to the nationals of other Members and to the European Communities' own nationals. On its face, the Regulation contains formally identical provisions vis-à-vis the nationals of different Members, with respect to the availability of GI protection.
7.173.
It is well recognized that the concept of "no less favourable" treatment under Article III:4 of GATT 1994 is sufficiently broad to include situations where the application of formally identical legal provisions would in practice accord less favourable treatment. The GATT Panel in US – Section 337, which considered an intellectual property enforcement measure prior to the conclusion of the TRIPS Agreement, interpreted the "no less favourable" standard under Article III:4 as follows:

"On the one hand, contracting parties may apply to imported products different formal legal requirements if doing so would accord imported products more favourable treatment. On the other hand, it also has to be recognised that there may be cases where application of formally identical legal provisions would in practice accord less favourable treatment to imported products and a contracting party might thus have to apply different legal provisions to imported products to ensure that the treatment accorded them is in fact no less favourable."197

7.174.
The Appellate Body in Korea – Various Measures on Beef, in a dispute concerning formally different treatment, quoted this passage and drew the conclusion that "[a] formal difference in treatment between imported and like domestic products is thus neither necessary, nor sufficient, to show a violation of Article III:4".198 It then proceeded to apply the relevant standard of examination.
7.175.
The Panel in Canada – Pharmaceutical Patents also considered that claims against both formal and practical discrimination are possible under the TRIPS Agreement, although that dispute concerned minimum standards of protection in Part II and not the basic principles in Part I.199
7.176.
We consider that this reasoning applies with equal force to the no less favourable treatment standard in Article 3.1 of the TRIPS Agreement. In our view, even if the provisions of the Regulation are formally identical in the treatment that they accord to the nationals of other Members and to the European Communities' own nationals, this is not sufficient to demonstrate that there is no violation of Article 3.1 of the TRIPS Agreement. Whether or not the Regulation accords less favourable treatment to the nationals of other Members than it accords to the European Communities' own nationals should be examined instead according to the standard we set out at paragraph 7,134, namely, the "effective equality of opportunities" with regard to the protection of intellectual property rights. In this examination, we will follow the approach that we set out at paragraph 7,137, which focuses on the "fundamental thrust and effect" of the Regulation.

Which nationals to compare?

7.177.
The text of Article 3.1 expressly calls for a comparison when it provides that "[e]ach Member shall accord to the nationals of other Members treatment no less favourable than that it accords to its own nationals" (emphasis added). The question arises as to which nationalsit is appropriate to compare.
7.178.
The United States submits that the Panel should compare the treatment of a hypothetical EC national with a GI located in the European Communities, and the treatment of a hypothetical U.S. national with a GI located in the United States. This is a comparison of a person in quadrant 1 with a person in quadrant 4 in the graphic set out earlier.
7.179.
The Panel recalls that the Regulation contains formally identical provisions vis-à-vis the nationals of different Members. In the absence of less favourable treatment based on a formal criterion of nationality, or a criterion that fully corresponds with nationality, the Panel is reluctant to compare a hypothetical national of one Member with a national of another Member simply because they both claim rights to the same category of intellectual property. This is a very low threshold with possibly unforeseen systemic implications for all intellectual property rights covered by the TRIPS Agreement.
7.180.
The United States also submits that there is discrimination according to nationality on the basis of a comparison of the group of the European Communities' own nationals who wish to obtain GI protection under the Regulation, with the group of nationals of other WTO Members who wish to obtain GI protection under the Regulation. This is a comparison of the persons in both quadrants 1 and 3 with the persons in both quadrants 2 and 4 in the graphic set out earlier.
7.181.
The Panel recalls that the standard of examination is based on "effective equality of opportunities". It follows that the nationals that are relevant to an examination under Article 3.1 of the TRIPS Agreement should be those who seek opportunities with respect to the same type of intellectual property in comparable situations.200 On the one hand, this excludes a comparison of opportunities for nationals with respect to different categories of intellectual property, such as GIs and copyright. On the other hand, no reason has been advanced as to why the equality of opportunities should be limited a priori to rights with a territorial link to a particular Member.201
7.182.
The Panel therefore considers it appropriate for the purposes of this claim to compare the effective equality of opportunities for the group of nationals of other Members who may wish to seek GI protection under the Regulation and the group of the European Communities' own nationals who may wish to seek GI protection under the Regulation. On this approach, there is no need to make a factual assumption that every person who wishes to obtain protection for a GI in a particular Member is a national of that Member.202
7.183.
The European Communities disagrees with this approach. It argues that the concept of de facto discrimination should be limited to cases of circumvention of obligations, which is unnecessary in this dispute because of the applicability of the national treatment obligation under GATT 1994.203
7.184.
The Panel is mindful of the need to ensure a harmonious interpretation of the national treatment obligation within the TRIPS Agreement itself as applied to different intellectual property rights. The fact that circumvention of that obligation may be prevented, uniquely, under GATT 1994 in certain cases concerning geographical indications, does not justify a different interpretation of Article 3.1 of the TRIPS Agreement from that which would be applicable to all other intellectual property rights, which do not have an inherent link to the territorial origin of a product. The Panel's interpretation preserves internal coherence in the interpretation of national treatment under the TRIPS Agreement.

Comparison of treatment accorded to the nationals of other Members and that accorded to the European Communities' own nationals

7.185.
Articles 5 through 7 of the Regulation set out a registration procedure for GIs that refer to a geographical area located within the territory of the European Communities.204 Articles 12a and 12b set out a registration procedure for GIs that refers to geographical areas located in third countries, including WTO Members. The conditions in Article 12(1) only apply to the latter procedures and, hence, only to GIs that refer to geographical areas located in third countries.
7.186.
There is a link between the location of a geographical area to which a GI refers and certain persons. Article 5(1) and 5(2) provides that the following persons may apply for registration of a GI:

1. Only a group or, subject to certain conditions to be laid down in accordance with the procedure provided for in Article 15205, a natural or legal person, shall be entitled to apply for registration.

For the purposes of this Article, 'Group' means any association, irrespective of its legal form or composition, of producers and/or processors working with the same agricultural product or foodstuff. Other interested parties may participate in the group.

2. A group or a natural or legal person may apply for registration only in respect of agricultural products or foodstuffs which it produces or obtains within the meaning of Article 2(2)(a) or (b).

7.187.
These definitions of applicants cross-refer to the definitions of designations of origin and geographical indications in the Regulation in Article 2(2)(a) and (b), which provide as follows:

"2. For the purposes of this Regulation:

(a) designation of origin: means the name of a region, a specific place or, in exceptional cases, a country, used to describe an agricultural product or a foodstuff:

– originating in that region, specific place or country, and

– the quality or characteristics of which are essentially or exclusively due to a particular geographical environment with its inherent natural and human factors, and the production, processing and preparation of which take place in the defined geographical area;

(b) geographical indication: means the name of a region, a specific place or, in exceptional cases, a country, used to describe an agricultural product or a foodstuff:

– originating in that region, specific place or country, and

– which possesses a specific quality, reputation or other characteristics attributable to that geographical origin and the production and/or processing and/or preparation of which take place in the defined geographical area."

7.188.
Registration confers certain protection, but only agricultural products or foodstuffs that comply with a specification are eligible to "use" a registered GI. Article 4(2) sets out the minimum requirements which must be included in a product specification, which include inter alia "evidence that the agricultural product or the foodstuff originates in the geographical area", "a description of the method of obtaining the agricultural product or foodstuff and, if appropriate, the authentic and unvarying local methods" and "the details bearing out the link with the geographical environment or the geographical origin" (from items (d), (e) and (f), respectively). Any person, and not merely the applicant, that produces or obtains the products in accordance with the specification in the registration is entitled to use the GI.
7.189.
These provisions create a link between persons, the territory of a particular Member, and the availability of protection. The definition of a "designation of origin" requires that the applicant and users must produce, process and prepare the products covered by a registration in the relevant geographical area, whilst the definition of a "geographical indication" requires that the applicant and users must carry out at least one, or some combination, of these three activities in the geographical area, and must do so in accordance with a specification.
7.190.
Accordingly, insofar as the Regulation discriminates with respect to the availability of protection between GIs located in the European Communities, on the one hand, and those located in third countries, including WTO Members, on the other hand, it formally discriminates between those persons who produce, process and/or prepare a product in accordance with a specification, in the European Communities, on the one hand, and those persons who produce, process and/or prepare a product in accordance with a specification, in third countries, including WTO Members, on the other hand.
7.191.
The Panel recalls its finding in paragraph 7,182 that it is appropriate for the purposes of this dispute to compare the treatment accorded to the group of nationals of other Members who may wish to seek GI protection under the Regulation and the group of the European Communities' own nationals, who may wish to seek GI protection under the Regulation.
7.192.
The United States argues that there is an extremely close fit between a distinction based on where a legal person is established and producing agricultural products and foodstuffs, and a distinction based on nationality.206
7.193.
The European Communities does not deny this. It relies on the fact that the Regulation itself contains no legal obstacle to foreign nationals taking advantage of EC geographical indications and disputes that any person who is producing a product must necessarily have the nationality of the place where the product is produced.207 However, in the Panel's view, that is not dispositive of the issue.
7.194.
The Panel agrees that the vast majority of natural and legal persons who produce, process and/or prepare products according to a GI specification within the territory of a WTO Member party to this dispute will be nationals of that Member. The fact that there may be cases where such a person does not qualify as a national – and none has been brought to its attention – does not alter the fact that the distinction made by the Regulation on the basis of the location of a GI will operate in practice to discriminate between the group of nationals of other Members who wish to obtain GI protection, and the group of the European Communities' own nationals who wish to obtain GI protection, to the detriment of the nationals of other Members. This will not occur as a random outcome in a particular case but as a feature of the design and structure of the system. This design is evident in the Regulation's objective characteristics, in particular, the definitions of "designation of origin" and "geographical indication" and the requirements of the product specifications. The structure is evident in the different registration procedures.
7.195.
Complete data on the persons who have actually availed themselves of protection under the Regulation is not available. Any person who produces, processes and/or prepares a product according to the specification in a GI registration is entitled to use the GI. Data on the persons who have applied for, and obtained, protection under the Regulation and their respective addresses is available but their nationality is not recorded. However, there is no clear evidence that even a single person who has applied for or is entitled to use a registered GI is not one of the European Communities' own nationals.
7.196.
Whilst certain of the European Communities' own nationals may wish to obtain protection for GIs located outside the European Communities as well, it cannot seriously be contested that the GIs for which nationals of other WTO Members would wish to obtain protection are overwhelmingly located outside the European Communities. This is supported by evidence presented by the United States showing that the nationality of certain French, German, Italian, Spanish and U.S. holders of certification marks for principally place names registered in the United States is that of the country in which the relevant geographical area is located.208
7.197.
The European Communities presented evidence intended to show that certain foreign nationals have actually obtained protection under the Regulation. The Panel notes that all its examples consist of a foreign national, or a corporation incorporated under the laws of an EC member State, that acquired another corporation incorporated under the laws of an EC member State, which produces products entitled to GI protection.209 Those subsidiary corporations obtaining the benefit of protection appear to be the European Communities' own nationals, according to a place of incorporation test. Evidence is not available on the place of their company seat but such cases appear to be rare. This evidence confirms, rather than contradicts, the link between the treatment accorded to GIs located in the European Communities and EC nationality.
7.198.
The text of the TRIPS Agreement contains a recognition that discrimination according to residence and establishment will be a close substitute for nationality. The criteria set out in footnote 1 to the TRIPS Agreement are clearly intended to provide close substitute criteria to determine nationality where criteria to determine nationality as such are not available in a Member's domestic law. These criteria are "domicile" and "real and effective industrial or commercial establishment". They are taken from the criteria used for the assimilation of nationals in Article 3 of the Paris Convention (1967). It is clear that, in using these terms, the drafters of footnote 1 of the TRIPS Agreement chose terms that were already understood in this pre-existing intellectual property convention. Under Article 3 of the Paris Convention (1967), "domicile" is not generally understood to indicate a legal situation, but rather a more or less permanent residence of a natural person, and an actual headquarters of a legal person. A "real and effective industrial and commercial establishment" is intended to refer to all but a sham or ephemeral establishment.210
7.199.
The object and purpose of the TRIPS Agreement depends on the obligation in Article 1.3 to accord the treatment provided for in the Agreement to the nationals of other Members, including national treatment under Article 3.1. That object and purpose would be severely undermined if a Member could avoid its obligations by simply according treatment to its own nationals on the basis of close substitute criteria, such as place of production, or establishment, and denying treatment to the nationals of other WTO Members who produce or are established in their own countries.
7.200.
Further, the Panel recalls its finding at paragraph 7,182 and considers that Article 3.1 calls for a comparison of the effective equality of opportunities for the group of nationals of other Members who may wish to seek GI protection under the Regulation and the group of the European Communities' own nationals who may wish to seek GI protection under the Regulation. An objective assessment of that comparison cannot ignore the difference in treatment between quadrants 1 and 2 and quadrants 3 and 4 in the graphic set out earlier.
7.201.
The Panel also notes that the close link between nationality, on the one hand, and residence and establishment, on the other, appears to be recognized in the Regulation itself. Article 12d of the Regulation accords a right of objection to persons, which the European Communities confirms is a reference to persons resident or established outside the European Communities, regardless of their nationality.211 Yet the April 2003 amending Regulation, which inserted Article 12d, explained that it granted the right of objection to the nationals of other WTO Members.212
7.202.
The European Communities argues that any difference in treatment of the nationals of other Members is not attributable to the Regulation. In its view, if a person sets up a legal entity in the area where the GI is located, "[i]t is simply a practical consequence of the fact that products have to be produced in accordance with the product specification, which may require that an important part of the production process takes place in the geographical area concerned." It argues that if, for practical considerations related for instance to taxation or labour law, a person producing in conformity with a product specification chooses to set up a legal entity in the area where the geographical area is located, this is not related to the Regulation.213
7.203.
The Panel considers that this constitutes part of the fundamental thrust and effect of the Regulation, including its practical implications, and that therefore it must be taken into account in assessing whether the Regulation accords less favourable treatment. Whilst the Regulation does not prevent a foreign national from producing goods within the territory of the European Communities which would be entitled to use a GI, the implications of its design and structure on the opportunities for protection are such that its different procedures will operate to accord different treatment to the European Communities' own nationals and to the nationals of other Members, to the detriment of the nationals of other Members.214
7.204.
Accordingly, the Panel's preliminary conclusion is that, with respect to the availability of protection, the treatment accorded to the group of nationals of other Members is different from, and less favourable than, that accorded to the European Communities' own nationals.

Defences based on systemic considerations

7.205.
The European Communities argues that the interpretation of the national treatment obligations in the TRIPS Agreement and GATT 1994 should not lead to "systematic overlap" between them.
7.206.
The Panel notes that the demonstration of less favourable treatment under each agreement remains a distinct exercise since national treatment under Article 3.1 of the TRIPS Agreement ensures effective equality of opportunities for nationals with regard to the protection of intellectual property rights, whereas national treatment under GATT 1994 ensures equality of conditions of competition between products.215
7.207.
The European Communities also argues that one must take account of the absence in the TRIPS Agreement of a general exceptions provision analogous to Article XX of GATT 1994.
7.208.
The Panel notes that there is no hierarchy between the TRIPS Agreement and GATT 1994, which appear in separate annexes to the WTO Agreement. The ordinary meaning of the texts of the TRIPS Agreement and GATT 1994, as well as Article II:2 of the WTO Agreement, taken together, indicates that obligations under the TRIPS Agreement and GATT 1994 can co-exist and that one does not override the other. This is analogous to the finding of the Panel in Canada – Periodicals, with which the Appellate Body agreed, concerning the respective scopes of GATS and GATT 1994.216 Further, a "harmonious interpretation" does not require an interpretation of one that shadows the contours of the other. It is well established that the covered agreements apply cumulatively and that consistency with one does not necessarily imply consistency with them all.217
7.209.
More specifically, the Panel notes that Article 8 of the TRIPS Agreement sets out the principles of that agreement. Article 8.1 provides as follows:

"1. Members may, in formulating or amending their laws and regulations, adopt measures necessary to protect public health and nutrition, and to promote the public interest in sectors of vital importance to their socio-economic and technological development, provided that such measures are consistent with the provisions of this Agreement."

7.210.
These principles reflect the fact that the TRIPS Agreement does not generally provide for the grant of positive rights to exploit or use certain subject matter, but rather provides for the grant of negative rights to prevent certain acts. This fundamental feature of intellectual property protection inherently grants Members freedom to pursue legitimate public policy objectives since many measures to attain those public policy objectives lie outside the scope of intellectual property rights and do not require an exception under the TRIPS Agreement.
7.211.
The scope of the national treatment obligation in Article 3.1 of the TRIPS Agreement also differs from that of the national treatment obligation in Article III:4 of GATT 1994, as it is subject to certain exceptions in Articles 3.1, 3.2 and 5, one of which is inspired by the language of Article XX of GATT 1994.218 There is also a series of specific exceptions in the provisions relating to the minimum standards in Part II of the TRIPS Agreement and Part VII contains a provision on security exceptions analogous to Article XXI of GATT 1994, but none on general exceptions.
7.212.
For all these reasons, in the Panel's view, the fact that a general exceptions provision analogous to Article XX of GATT 1994 was not included in the TRIPS Agreement has no impact on its analysis of Article 3.1.

Conclusion with respect to Article 3.1 of the TRIPS Agreement

7.213.
Therefore, the Panel concludes that, with respect to the equivalence and reciprocity conditions, as applicable to the availability of GI protection, the Regulation accords treatment to the nationals of other Members less favourable than that it accords to the European Communities' own nationals, inconsistently with Article 3.1 of the TRIPS Agreement.

Article 2 of the Paris Convention (1967)

7.214.
The United States also makes claims under the national treatment obligation set out in Article 2 of the Paris Convention (1967). These claims are made under paragraphs 1 and 2 of that article, which provide as follows:

(1) Nationals of any country of the Union shall, as regards the protection of industrial property, enjoy in all the other countries of the Union the advantages that their respective laws now grant, or may hereafter grant, to nationals; all without prejudice to the rights specially provided for by this Convention. Consequently, they shall have the same protection as the latter, and the same legal remedy against any infringement of their rights, provided that the conditions and formalities imposed upon nationals are complied with.

(2) However, no requirement as to domicile or establishment in the country where protection is claimed may be imposed upon nationals of countries of the Union for the enjoyment of any industrial property rights.

7.215.
The text refers to the "countries of the Union" for the purposes of identifying States which bear the obligation to accord national treatment under that provision. However, Article 2.1 of the TRIPS Agreement obliges WTO Members to comply with Articles 1 through 12, and Article 19, of that Convention.219 Therefore, as a WTO Member, the European Communities owes obligations under Article 2 of the Paris Convention (1967), as incorporated by Article 2.1 of the TRIPS Agreement.
7.216.
With respect to the claim under paragraph 1 of Article 2 of the Paris Convention (1967), as incorporated by Article 2.1 of the TRIPS Agreement, the Panel observes that, unlike Article 3.1 of the TRIPS Agreement, Article 2(1) of the Paris Convention (1967) refers to "the advantages that... laws now grant, or may hereafter grant" and not to "no less favourable" treatment. Therefore, the Panel has not actually reached a conclusion on this claim. However, further findings on this claim would not provide any additional contribution to a positive solution to this dispute and are therefore unnecessary.
7.217.
With respect to the claim under paragraph 2 of Article 2 of the Paris Convention (1967), as incorporated by Article 2.1 of the TRIPS Agreement, the Panel does not consider that the Regulation contains a requirement of domicile or establishment.220 We have found that the design and structure of the Regulation will operate to ensure that persons who use a protected GI, located in the European Communities, will have a domicile or establishment within the territory of the European Communities. We have also found that the availability of protection for GIs located in third countries, including WTO Members, is dependent on whether the third country in which the GI is located satisfies the conditions of equivalence or reciprocity or enters into an international agreement with the European Communities. It is irrelevant to the protection of a GI located in a third country whether or not the person who seeks protection has a domicile or establishment in the European Communities.
7.218.
Therefore, the Panel concludes that, with respect to the availability of protection, the Regulation does not impose a requirement as to domicile or establishment inconsistently with Article 2(2) of the Paris Convention (1967), as incorporated by Article 2.1 of the TRIPS Agreement.

(c) National treatment under GATT 1994

(i) Main arguments of the parties

7.219.
The United Statesclaims that the Regulation is inconsistent with Article III:4 of GATT 1994 because it imposes conditions of reciprocity and equivalence on the benefits of registration. It argues that the Regulation applies to products from the European Communities and third countries which are like products because the only difference between products that do, and do not, benefit from registration without conditions of reciprocity and equivalence, is their origin in the European Communities or a third country.221 It argues that the Regulation is a measure affecting the internal sale, offering for sale, purchase, distribution or use of the imported product because it governs the manner in which registered names can be used on products which are sold, offered for sale, purchased, distributed or used, it governs use of the logo which allegedly provides competitive advantages and it provides protection for products that qualify for registered GIs broad protections against competitive and disparaging uses and against their names becoming generic.222
7.220.
The United States argues that the Regulation accords less favourable treatment to imported products because it does not permit registration of GIs on the same conditions as those for products from the European Communities but imposes substantial and often insurmountable additional conditions.223 The Regulation is motivated by the European Communities' belief that producers of products with GI protection fare much better in the marketplace than those whose products do not have such protection.224 Registration permits use of the GI and the logo and provides broad protection against competing and disparaging uses and against their names becoming generic.225 The effects of registration, listed in Article 13(1) of the Regulation, authorize judicial and administrative authorities to issue orders preventing all other products from being promoted or sold accompanied by names or labels that fall within the scope of the registration. These include removal of terms that evoke the protected GI, which may be an important selling point for the imported product. Another effect of registration, mentioned in Article 13(3) of the Regulation, prevents names becoming generic and thereby losing their status as an identifier of source.226 The Regulation itself indicates that both the intent and the effect of the Regulation is to provide competitive benefits to products that satisfy the registration criteria.227
7.221.
The European Communities responds that the Regulation is fully compatible with Article III:4 of GATT 1994. It does not contest that products from the European Communities and from third countries falling under the scope of the Regulation may be like products, although it stresses that this alone does not preclude the European Communities from applying the conditions for registration to individual GIs.228 It does not contest that the Regulation is a measure affecting the internal sale of products.229
7.222.
The European Communities argues that the Regulation does not accord less favourable treatment to imported products because it does not apply the conditions in Article 12(1) to the registration of GIs from other WTO Members.230 It concedes that the application of those conditions would prejudice its obligations under Article III:4 of GATT 1994.231

(ii) Main arguments of third parties

7.223.
Brazilargues the GATT­– and WTO– underlying principle of national treatment would be completely voided of any meaning if it were made conditional on requirements of reciprocity and adoption of equivalent legislation.232
7.224.
Chinaargues that the different treatment accorded to GIs by the Regulation will amount to less favourable treatment if it is found to modify the conditions of competition under which like imported and EC products compete in the EC market to the disadvantage of imported products.233
7.225.
New Zealand considers that the complainants have demonstrated all three elements constituting a violation of Article III:4 of GATT 1994. The only issue under debate is whether the Regulation confers "less favourable treatment" on imported products. As the same phrase is used in Article 3.1 of the TRIPS Agreement, all arguments raised under that claim apply equally here.234

(iii) Consideration by the Panel

7.226.
The Panel notes that the European Communities concedes that the conditions of equivalence and reciprocity in Article 12(1) of the Regulation, if applied to WTO Members, are inconsistent with Article III:4 of GATT 1994.235 Given that the Panel has found that the Regulation "as such" imposes those conditions on the registration of GIs located in other WTO Members, there is no longer any defence before the Panel to the claim that, in this respect, the Regulation is inconsistent with Article III:4 of GATT 1994. It suffices to recall below that the essential elements of an inconsistency with Article III:4 are all met in this claim. These elements are the following: that the imported and domestic products at issue are "like products"; that the measure at issue is a "law, regulation, or requirement affecting their internal sale, offering for sale, purchase, transportation, distribution, or use"; and that the imported products are accorded "less favourable" treatment than that accorded to like domestic products.236
7.227.
The Regulation sets down requirements concerning the use of certain names in the presentation for sale of agricultural products and foodstuffs.237 It is therefore a law or regulation affecting the internal sale and offering for sale of products within the meaning of Article III:4 of GATT 1994. This is not altered by the fact that the Regulation is also an intellectual property measure covered by the TRIPS Agreement since GATT 1994 and the TRIPS Agreement apply cumulatively.238
7.228.
The Regulation links the protection of the name of a product to the territory of a particular country.239 In the case of "designations of origin", as defined in Article 2 of the Regulation, this is the place of production, processing and preparation of the product and, in the case of "geographical indications", as defined in Article 2 of the Regulation, this is the place of production, processing and/or preparation. It is not disputed that in most cases these criteria are sufficient to confer origin on the products. Given that the Panel has found that the protection of names of products from other WTO Members is contingent on satisfaction of certain conditions of equivalence and reciprocity that do not apply to the names of products from the European Communities, the Regulation formally discriminates between imported products and products of European Communities origin within the meaning of Article III:4 of GATT 1994.
7.229.
The Regulation applies to the names of a wide class of products described in Article 1(1), which refers to the large number of agricultural products intended for human consumption referred to in Annex 1 to the EC Treaty as well as 13 additional types of agricultural products and foodstuffs listed in the annexes to the Regulation. The European Communities does not contest that there are, among this group, "like products" among the imported products and products of European Communities origin. The European Communities and other WTO Members produce the same types of covered agricultural products and foodstuffs with GIs that may be eligible for protection. Article 13(1)(a) of the Regulation provides that protection is provided against use of a name in respect of products "comparable to the products registered under that name". It is axiomatic that one must compare apples with apples and oranges with oranges. In this dispute, it is not contested that Tasmanian apples may be like pommes de Savoie240 and Florida citrus may be like cítricos valencianos241 for the purposes of Article III:4 of GATT 1994.
7.230.
In our analysis of the question of "less favourable treatment", we follow the approach of the Appellate Body in Korea – Various Measures on Beef and US – FSC (Article 21.5 – EC) that this standard should be assessed under Article III:4 of GATT 1994 by examining whether the measures at issue modify the conditions of competition between domestic and imported products in the relevant market to the detriment of imported products. This examination must closely scrutinize the "fundamental thrust and effect of the measure itself" founded on a careful analysis of the contested measure and of its implications in the marketplace.242
7.231.
The Regulation provides in Article 13 that registered GIs shall be protected against certain commercial uses and other practices. Registration provides the legal means to prevent the sale and offering for sale of products, including competitive products, where they use, imitate or evoke a registered GI, which is a substantive advantage conferred on products that comply with the GI registration. Registration does not grant a right to exclude competition, or deny the possibility of sale without a registered GI but, where products, including competitive products, bear an indication that falls within the protection granted by registration, they may be removed from sale. This is a substantive advantage that affects the conditions of competition of the relevant products.
7.232.
The declared purposes of the Regulation set out in its preamble include the following, which links GIs to demand for products:

"Whereas, moreover, it has been observed in recent years that consumers are tending to attach greater importance to the quality of foodstuffs rather than to quantity; whereas this quest for specific products generates a growing demand for agricultural products or foodstuffs with an identifiable geographical origin;"

7.233.
Agricultural products and foodstuffs from the European Communities may obtain this advantage where they satisfy the eligibility criteria in the Regulation. Like products imported from WTO Members that the Commission has not decided meet the equivalence and reciprocity conditions in Article 12(1) of the Regulation – which is all of them – are not able to obtain that advantage and, hence, are accorded less favourable treatment. Products from WTO Members which can satisfy the equivalence and reciprocity conditions in Article 12(1) still face an "extra hurdle" in obtaining the advantage of registration since the Commission must decide that their country of origin meets those conditions – a step which is not required of like products from the European Communities. This is also less favourable treatment.