The following notification, dated 13 June 2005, from the
Delegation of the European Commission, is being circulated to Members.
1) The Panel�s conclusion that �Frozen boneless chicken
cuts that have been impregnated with salt, with a salt content of 1.2% ‑ 3%
(the product at issue) are covered by the concession contained in heading
02.10 of the EC Schedule� (para. 8.1(a) of the Panel Reports) and that, as a
consequence, EC Regulation No. 1223/2002 and EC Decision 2003/97/EC result
in the EC imposing customs duties in excess of those provided for in the
EC�s Schedule in respect of products falling under heading 02.10 (para.
8.1(b) of the Panel Reports) such that the EC has acted inconsistently with
the requirements of Articles II:1(a) and II:1(b) of the GATT 1994 (para.
8.1(c) of the Panel Reports).
2) The Panel�s conclusion is based on several elements of
erroneous legal reasoning. Its ultimate erroneous conclusion is that the
term �salted� in heading 02.10 is not based on the notion of preservation
(para. 7.424). It reaches this erroneous conclusion by failing properly to
examine the term �salted� in heading 02.10 in light of the applicable rules
of treaty interpretation. The EC seeks review of all elements of this
incorrect examination.
The Panel erroneously applies Article 31 of the Vienna
Convention of the Law of Treaties. In particular, but not necessarily
exclusively, the Panel fails properly to apply the notions of:
a) Ordinary meaning (paras. 7.105; 7.114-7.115;
7.117; 7.140-7.151), in particular, by taking into consideration what
the Panel referred to as �the factual context for the consideration of
the ordinary meaning�;
b) Context (paras. 7.161-7.163; 7.171-7.173;
7.179-7.180; 7.189; 7.199-7.202; 7.205; 7.241; 7.245 ), in particular by
failing to properly examine the immediate context of the term �salted�
in heading 02.10 and the relevant aspects of the Harmonised System;
c) Subsequent practice (paras. 7.251; 7.253-7.256;
7.265-7.276; 7.284; 7.288-7.290; 7.298-7.299; 7.302-7.303), in
particular, by misinterpreting the notion of �subsequent practice� and
by considering that the unilateral �practice�1 of one party could have a
bearing on a multilaterally agreed text and by wrongly analysing the
existence of �practice� at the EC and multilateral level.
d) Object and purpose of the treaty (paras. 7.316 to
7.328), in particular, the Panel�s reliance on �security and
predictability�.
e) To the extent that the Panel's conclusions are
premised on an erroneous assessment of the facts, the EC seeks review of
that assessment pursuant to Article 11 of the DSU.
3) The Panel erroneously applies Article 32 of the Vienna Convention (paras. 7.336 - 7.423). In particular, but not
necessarily exclusively, the Panel fails to examine properly the
circumstances of conclusion (paras. 7.340 et seq.) with a view to
establishing the common intention of the parties to the treaty in the sense
that it:
a) wrongly limits its analysis to �the prevailing
situation in the European Communities� ignoring the prevailing situation
internationally (that is the multilateral context) and the practice of
other Members (para. 7.340; 7.421);
b) develops and applies an erroneous notion of
constructive knowledge (para. 7.346);
c) wrongly analyses prior practice of the Community,
relying exclusively on or giving undue probative value to and
misinterpreting, EC Commission Regulation 535/94, classification between
1996-2002 and other irrelevant post-1994 acts as part of the
circumstances of conclusion (paras. 7.359-7.364 7.365-7.370), thereby
failing to give proper consideration to prevailing EC law and practice
throughout the Uruguay Round, in particular in respect of case-law of
the European Court of Justice interpreting heading 02.10 of the Council Regulation establishing the Combined Nomenclature (paras.
7.390-7.405), EC Explanatory Notes (7.411-7.413) and ignoring the legal
relationship between the different elements of EC law and practice;
d) To the extent that the Panel's conclusions are
premised on an erroneous assessment of the facts, the EC seeks review of
that assessment pursuant to Article 11 of the DSU.
The provisions of the covered agreements which the European
Communities consider to have been erroneously interpreted or applied by the
Panel include:
The EC also considers that the Panel erroneously interpreted
and applied Article 3.2 of the DSU read in conjunction with the customary rules
of interpretation of public international law, in particular Article 31 (3)(b)
and Article 32 of the Vienna Convention and misapplied Article 11 of the
DSU.