(e) The Parties' Arguments

(i) Ecuador

107. Ecuador argues that the de facto discrimination in the EC's previous licensing regime persists because of the EC's choice of criteria for allocating licences. By basing licence allocation on the "actual importer" criterion, the European Communities ensures that the predominantly EC/ACP services suppliers to whom Category B, ripener and hurricane licences were issued in the previous regime will retain rights to most of those licences in the new regime. Overall, Ecuador argues that under the new regime, non-EC/ACP operators can be expected to receive only 44.6 per cent of the licences they should receive. ²¹⁴
108. Ecuador submits statistics on exports and licence allocations to individual companies under the previous and under the revised regime. In essence, these statistics show that Noboa, the principal Ecuadorian service supplier, is able to claim reference quantities for licence allocations in 1999 of approximately only half of its actual exports to the EC in the past.
109. Ecuador's position is that these statistics demonstrate that its wholesale service suppliers face less favourable conditions of competition than EC/ACP suppliers because they cannot obtain licences to import their bananas on terms as favourable as those EC/ACP suppliers who continue to benefit under the revised regime from the carry-on of GATS-inconsistent licence allocation criteria under the previous regime. In particular, we note in this regard Ecuador's view that this is to be expected because Ecuadorian service suppliers were forced to enter into unfavourable contractual arrangements with initial licence holders under the previous regime. Under many of those arrangements, according to Ecuador, original licence holders, whether or not they physically imported, may prove payment of customs duties which makes them "actual importers" for purposes of licence allocations under the revised regime. Such contractual arrangements continue under the revised regime. Therefore, Ecuador alleges that its suppliers of wholesale services are subject to less favourable treatment than suppliers of such services of EC/ACP origin.

(ii) European Communities

110. The European Communities argues at the outset that the facts on which the original panel had based its conclusions had so changed by 1994-1996 that the panel would not have made the same findings had it disposed of the 1994-1996 facts.
111. With respect to the major third-country operators (i.e. Chiquita, Dole, Del Monte and Noboa), the European Communities contends that the allocations of licences for the importation of third-country and non-traditional ACP bananas to these operators increased by 35 per cent between 1994 under the previous regime and 1999 under the revised regime. ²¹⁵ According to the European Communities, this occurred because of two reasons: investments and licence transfers.
112. First, there were investments by third-country operators in EC/ACP operators. The European Communities mention investments in Compagnie Fruitière and CDB/Durand by Dole and Chiquita, respectively, and concludes that reference quantities based on EC/ACP operations for major third-country operators doubled between 1993 and 1996. ²¹⁶ The European Communities further point out that the original panel found that there was no de iure discrimination, based on an operator's origin, with respect to the access to the activity of ripening which entitled operators to licence allocations and thus to reap quota rents under the previous regime. However, the original panel had found that de facto less favourable conditions of competition existed for third-country suppliers of wholesale services because ripeners in the European Communities were predominantly EC owned or controlled ²¹⁷ and thus licence allocations and quota rents accrued largely to service suppliers of EC origin. Before this Panel, the European Communities emphasizes that, based on 1994 to 1996 statistics, three out of the four biggest ripeners are now non-EC owned and that these alone represent around 20 per cent of the total ripening capacity of the European Communities.
113. The second reason why licence allocations to third-country operators have increased is that there have been licence transfers under conditions that allow these operators to claim reference quantities under the revised regime. In the EC's view, this could explain why there has been a decline in the number of operators receiving licences. According to the European Communities, under the previous regime 1568 Category A and B operators were registered, whereas under the revised regime the number of traditional operators has decreased to 629 operators. For the European Communities, this shows that the mainly EC-owned operators that received licences in the past without being engaged in actual importation were ipso facto excluded from the allocation of licences by the introduction of the revised regime, i.e. mainly ripeners and EC producer organizations.
114. In response to Ecuador's argument that the new regime carries forward the old regime's allocation of licences in that the non-EC operators receive an amount of only 44.6 per cent of the licences they should, the European Communities argues that the correct "base" figure is 50.35 per cent if certain adjustments are made. ²¹⁸ The European Communities then increases the "base" figure by 35 per cent (see paragraph 6.111) to conclude that non-EC operators are now getting some 68 per cent of licence allocations. Since 8 per cent of allocations go to newcomers, only 24 per cent go to EC/ACP service suppliers. The European Communities suggests that the licences have been legitimately allocated to EC/ACP service suppliers under the revised regime since these operators actually imported Latin American bananas under the previous regime.
115. The European Communities also makes three more general arguments. In the first instance, the European Communities insists that GATS does not guarantee any particular market shares over time, i.e. there are no provisions for grandfather rights. Second, the European Communities argues that it has a right to choose "actual imports" as a basis for licence allocation. In particular, the European Communities refers to Article 3.5(j) of the Import Licensing Agreement, ²¹⁹ pursuant to which consideration should be given to "full utilisation of licenses" as a criterion for future allocations. In the EC's view, the only objective and indisputable way of proving the "effective" importation is the payment of duties, either directly or through a customs agent on a fee or contract basis, i.e. the system chosen by Regulation 2362/98. Third, the European Communities argues that the fact that Noboa exports to the European Communities more than it imports to the European Communities means that it is primarily an exporter and not an importer and that the two businesses are different.

(f) The Panel's Analysis of the Claim

116. In analyzing whether the new EC regime is de facto discriminatory, we will first consider the three general EC arguments set out in the preceding paragraph and thereafter evaluate the evidence presented by the parties on actual licence allocations and consider its relevance to Ecuador's claim. We will then consider the regime's structure and the extent to which it is based on or related to the previous regime found to be inconsistent with Articles XVII and II in Bananas III.

(i) General EC arguments

117. As to the EC argument that there are no grandfather rights in the GATS or guarantees of market shares, we agree, but note that this does not rule out the possibility that de facto less favourable conditions of competition may be found and prolonged in violation of GATS rules.
118. As to the EC's claimed right to choose "actual imports" as a basis for licence allocation, here again, we agree that the European Communities is not precluded from basing licence allocation on past usage. However, we note that the Import Licensing Agreement's provision that "consideration should be given" to full utilisation of licences does not rule out the possibility that the choice of how to assure that may be limited where de facto discrimination has been found in the past, and where reliance on licence usage may result in a prolongation of the results of a violation of GATS rules. The availability of the past performance allocation method, which is an option and not required by the Import Licensing Agreement, would not justify such a violation. In other words, even if Members are normally free to base licence allocation on past usage, that does not mean they are free to do so without regard to their GATS obligations. Moreover, we note that proof of payment of customs duties, directly or through a representative or customs agent, does not necessarily prove licence usage by a particular operator.
119. As to the EC's argument that Noboa is principally an exporter and not an importer, we note that Noboa is an Ecuadorian service supplier commercially present in the European Communities that provides wholesale services in respect of bananas. Therefore, it is irrelevant for purposes of this case whether Noboa is primarily an exporter or importer. In our view, what matters for purposes of Articles XVII and II, is whether Noboa is adversely affected in its conditions of competition as a wholesale service supplier under the revised regime because import licences are allocated based on the 1994-1996 reference period when the GATS-inconsistent allocation criteria were in force.

(ii) Licence allocations under the revised regime

120. In examining the evidence on licence allocations under the revised regime, we note that we based our original findings on the facts available at the time. Our findings explicitly foresaw that one of the effects of the previous regime would be to encourage service suppliers of non EC/ACP origin to invest in EC/ACP banana production and marketing and to acquire licences from EC/ACP service suppliers. Although these effects were anticipated, our findings were based on the fact that the previous EC regime modified the conditions of competition in violation of Articles XVII and II. ²²⁰
121. As to Noboa, we note that the parties generally agree on the evidence concerning the level of Noboa's exports and licence allocations. The European Communities challenges Ecuador's arguments that its service suppliers had to enter into unfavourable contractual arrangements. It notes, for instance, that an example of such a contract cited by Ecuador was a proposed contract, not an actual one. We are not generally persuaded by this EC argument, however, as there is evidence of such arrangements even if the extent of their use is unclear. The licence allocation data for 1999 support Ecuador's claim that in general Noboa did not obtain licences for imports in a manner that would allow it to claim reference quantities under the revised regime for its export interest.
122. As to the evidence presented by the European Communities concerning the increase in licence allocations to non-EC suppliers as a result of their investments in ACP operators, we note that there is evidence from third parties that raises some questions as to whether at least one of these investments was sufficient to make these firms non-EC controlled for purposes of GATS. ²²¹ According to Cameroon and Côte d'Ivoire, 60 per cent of Compagnie Fruitière, the principal exporter in each country, remains in the control of a French family. In this regard, we recall that, according to Article XXVIII(n) of GATS, a service supplier in the form of a legal person has the origin of a WTO Member if it is owned by more than 50 per cent by natural or juridical persons of that Member, or if it is controlled by those persons in the sense that they have the power to name the majority of directors. Moreover, in respect of investments in ripeners and licence transfers, we note that the EC's evidence was not comprehensive, which means that we are not in a position to ascertain the extent to which these factors have led to a change in licence allocations compared to the previous regime.
123. As to the EC argument that there were 1568 Category A and B operators registered under the previous regime, but that there are only 629 traditional operators under the revised regime, we note that the European Communities did not include information on ownership or control of these remaining traditional operators. Therefore, we are not in a position to ascertain whether the decline in the number of registered operators had an impact on the competitive conditions of non-ACP third-country service suppliers.
124. Even if the precise extent is uncertain, however, it is clear to us that an increase in licence allocations to non-EC/ACP operators has occurred. Indeed, such an increase would be in line with our considerations in the original dispute, that increases in licence allocations to non-ACP third-country suppliers during the period when the previous regime was in force could be the result of the "cross-subsidization" effect that induced such service suppliers who were previously engaged in the non-ACP third-country market segment into entering the EC/ACP market segment, or to engage in the ripening and customs clearance activities in order to qualify for licence allocations in the future.
125. In our view, it is not particularly relevant for purposes of this case to what extent precisely licence allocations to Noboa or other third-country suppliers of wholesale services increased under the revised regime in comparison to the previous low level. An increase only indicates that the carry-on effect of the revised regime is less than 100 per cent. The evidence submitted by Ecuador shows that in Noboa's attempts to supply wholesale trade services in the European Communities, in respect of part of its business it must purchase or lease licences from or otherwise enter into contractual arrangements with those who have access to licences but who do not wish to distribute bananas in the European Communities under the revised regime. Given the structure of the previous regime, those licence holders would be in the group of service suppliers in favour of which the previous EC regime altered competitive conditions. Thus, Noboa and other third-country service suppliers are faced with a competitive disadvantage that is not equally inflicted on service suppliers of EC/ACP origin. While we cannot ascertain the precise extent of this carry-on effect, it appears to be not unsubstantial, particularly in respect of Noboa. Therefore, an increase, even if it is within the order of the EC estimates, may not be considered as evidence that conditions of competition for non-ACP third-country suppliers are not less favourable than for like EC/ACP suppliers under the revised regime.
126. Therefore, we conclude that the ACP/EC operators who continue to get licences on the basis of the revised regime, remain in a competitively advantaged position compared to non-EC operators and that advantage comes from the "carry on" effects of the GATS-inconsistent aspects of the previous regime. Even if such ACP/EC operators do deal in Latin American bananas and do not simply sell or lease their licences, they are able to compete on more favourable conditions in the market for distribution of bananas than their non-EC competitors because of the licence allocations that are derived from the previous discriminatory regime. In this way, the revised regime carries forward the de facto discrimination of the previous regime.

(iii) The structure of the revised regime

127. We also examine the structure of the revised regime because the Appellate Body has noted in the past, in Japan - Alcoholic Beverages, ²²² that a measure's "protective application can most often be discerned from the design, the architecture and the revealing structure of a measure". Although the dispute on Japan - Alcoholic Beverages concerned claims under the GATT, we believe that this approach may also give some guidance in analyzing whether there is de facto discrimination under the GATS.
128. In our examination of the structure of Regulation 2362/98, we start from the proposition that if, in its new licensing regime, the European Communities had simply provided that licences would be issued to those to whom licences had been issued in the 1994-1996 period when those aspects of the previous licence allocation procedures which were found to be WTO-inconsistent in the original dispute by the panel and the Appellate Body, were in force, we would find that such a revised regime did not remove the GATS inconsistencies of the old regime, even if technically different rules for licence allocation had been implemented. This would be so because the less favourable conditions of competition for Ecuadorian (and other) service suppliers would continue to exist. The revised regime is not, however, based on license issuance during the 1994-1996 period, but rather on licence usage and payment of customs duties during that period. According to Article 4 of Regulation 2362/98, the reference quantities for 1999 of "traditional operators" under the revised regime are calculated on the basis of the average quantity of bananas actually imported during the 1994-1996 period.
129. The choice of the years from 1994 to 1996 as the reference period is explained in Recital 3 of Regulation 2362/98 as follows:

"[W]hereas, for the purpose of implementing the new arrangements in 1999, it is advisable, in the light of available knowledge on the de facto patterns of importation, to determine the rights of traditional operators in accordance with their actual imports during the three-year period 1994 � 1996". (emphasis added).

In this context, we also note that the Commission Working Document "Determination of Reference Quantities from 1995 Onwards" ²²³ acknowledges that licence allocation on the basis of the "licence usage method" would "maintain the same pattern of licence allocation between different types of operators as is seen at present" and "fossilize licence allocation in its current form. Traders could not obtain more quota by expanding their business; the only way to do so would be by buying licences from another operator, or by taking over another company".²²⁴

130. We acknowledge, however, that where Ecuadorian service suppliers entered into contractual arrangements with initial licence holders under conditions where they are able to present proof of actual payment of customs duties and of licence usage, there is no carry-on effect. However, in cases where the contractual arrangements between initial licence holders and Ecuadorian service suppliers do not allow them to prove actual payment of customs duties and licence usage during the 1994-1996 reference period (e.g. licence buy-back arrangements or licence "pooling"), they cannot claim reference quantities as "traditional operators" for licence allocations from 1999 onwards.
131. In the latter case, the revised licensing regime facilitates the continuance of past patterns of licence allocation based on WTO-inconsistent elements of the previous allocation. In particular e.g. where former Category B operators and/or ripeners are able to prove licence usage and payment of customs duties for imports made with such licences during the 1994-1996 period, such operators are able to claim reference quantities for 1999 regardless of whether they imported in fact.
132. In conclusion of our examination of the structure of the revised regime, we note that licence allocations under the revised regime are based on licence usage (and payment of customs duties), which according to the cited Commission Document is likely to "fossilize" or "maintain the same pattern of" past licence allocations. We further note that the base period (1994-1996) is one in which the rules for licence allocation had been in certain aspects found to be WTO-inconsistent in Bananas III. On its face, the choice of the 1994-1996 reference period in combination with the licence usage/actual tariff payment criteria would seem likely to continue at least in part the less favourable conditions of competition for foreign service suppliers found under the previous licensing regime. Consequently, in our view, the EC's revised licence allocation system, which reflects licence usage during the 1994-1996 period, displays de facto discriminatory structure. While this is not in itself sufficient to find the new regime to be inconsistent with Articles XVII and II, it usefully informs our analysis.

(iv) Overall evaluation

133. In light of all these considerations, we conclude that Ecuador has established a presumption ²²⁵ that the revised licence allocation system prolongs - at least in part - less favourable treatment in the meanings of Articles II and XVII for wholesale service suppliers of Ecuadorian origin. Ecuador has also shown that its service suppliers do not have opportunities to obtain access to import licences on terms equal to those enjoyed by service suppliers of EC/ACP origin under the revised regime and carried on from the previous regime. Accordingly, it was for the EC to adduce sufficient evidence to rebut this presumption. In light of our evaluation of the factual and legal arguments presented, we conclude that the European Communities has not succeeded in doing so. This result is consistent with our conclusion that the revised licence allocation system reflecting licence usage and payment of customs duties during the 1994-1996 period displays de facto discriminatory structure.
134. Accordingly, we find that under the revised regime Ecuador's suppliers of wholesale services are accorded de facto less favourable treatment than EC/ACP suppliers of those services in violation of Articles II and XVII of GATS.

(g) The "Single Pot" Licence Allocation

135. Regulation 1637/98 introduced a so-called "single pot" licence allocation system under which reference quantities claimed under the tariff quota of 2,553,000 tonnes are pooled with those claimed under the quantity of 857,700 tonnes reserved for traditional ACP imports. Thus, under the revised regime, a traditional operator may use its reference quantities based on past imports of traditional ACP bananas to apply for licences to import third-country bananas and vice versa.
136. Ecuador alleges that this "single pot" solution for calculating reference quantities aggravates the carry-on de facto discrimination from the previous regime and further erodes the licence allocations to Ecuadorian service suppliers. Specifically, Ecuador submits that less than 60 per cent of licence applications by Noboa and its subsidiaries granted in the quarterly licence allocation procedures due to oversubscription and the application of reduction coefficients with respect to Ecuador's country allocation. In Ecuador's view, these results are due to the "single pot" licence allocation under the revised regime.
137. The European Communities contends that, in compliance with the DSB rulings, it has abolished the different licensing procedures of the previous regime for traditional ACP imports, on the one hand, and for third-country and non-traditional ACP imports, on the other. It has introduced a single licensing regime for banana imports from all sources of supply and has created a "single pot" or "pool" for purposes of calculating reference quantities under the revised regime. The European Communities emphasizes that there cannot be a protection of "grandfather" rights as to licence entitlements, especially not in the transition from the previous to the revised regime.
138. We note the results of the quarterly two-round licence allocation procedures for the first and the second quarter of 1999. Due to the oversubscription of available licence quantities during the first round of the licence allocation procedures for the first quarter of 1999, ²²⁶ reduction coefficients of 0.5793, 0.6740 and 0.7080 were applied to applications for licences for imports from Colombia, Costa Rica and Ecuador, respectively. While licence quantities of 77,536.711 tonnes and 41,473.846 tonnes for imports from Panama and "other" (i.e. non-substantial third-country and non-traditional ACP supplier countries) were transferred to the second round, these quantities were exhausted in the second round, when reduction coefficients of 0.9701 and 0.7198 were applied to applications for licences allowing imports from Panama and "other", respectively. ²²⁷ Licence quantities for 148,128.046 tonnes of traditional ACP imports were not applied for in the first round, and apparently also not exhausted in the second round. In the first round of the allocation procedure for the second quarter of 1999, ²²⁸ reduction coefficients of 0.5403, 0.6743 and 0.5934 were applied to applications for licences allowing imports from Colombia, Costa Rica and Ecuador, respectively. However, licence quantities for 120,626.234 tonnes and 7,934.461 tonnes of imports from Panama and from other third-country and non-traditional ACP sources, respectively, were transferred to the second round of the allocation procedure for the second quarter of 1999.
139. The parties agree that the so-called "single pot" solution is not de iure discriminatory. We agree also. The pooling of reference quantities claimed under the tariff quota of 2,553,000 tonnes with those under the quantity of 857,700 tonnes reserved for traditional ACP imports in a single licensing regime can be expected to intensify competition between the operators who apply for licences in the quarterly allocation procedures. Given that it is more profitable to market Latin American bananas than ACP bananas, it is evident that profit-maximizing operators have an incentive to apply in the two-round quarterly licence allocation procedures first for low-cost Latin American sources of supply. This obvious effect is confirmed by the fact that in the first two quarterly licence allocation procedures under the revised regime, available licences for most Latin American sources were oversubscribed in the first round (i.e. country-allocations for the substantial suppliers Ecuador, Colombia and Costa Rica), and the remaining licences for imports from Latin America (i.e. Panama and "other" non-substantial suppliers) were exhausted in the second round. However, licence applications for imports within the quantity of 857,700 tonnes reserved for traditional ACP suppliers were generally made in the second round and this quantity was not exhausted.
140. We next examine whether the alleged de facto discriminatory effects of pooling third-country and traditional ACP licences in a "single pot" derive from the fact that under the revised regime reference quantities are calculated based on the 1994-1996 period when those allocation criteria that were found to be GATS-inconsistent were in force. We recall that the previous regime provided for two separate sets of licensing procedures for traditional ACP imports, on the one hand, and for third-country and non-traditional ACP imports, on the other. Under the latter licensing system, Category B operators, based on reference quantities for marketing traditional ACP or EC bananas, were allocated 30 per cent of the licences required for the importation of third-country and non-traditional ACP bananas reserved for those B operators in addition to the right to continue importing traditional ACP bananas. Likewise, ripeners were allocated 28 per cent of the third-country import licences. Under the revised, single licensing regime, there is no comparable reservation of licence quantities for former Category B operators or for ripeners.
141. However, to the extent that former Category B operators and ripeners may prove licence usage and payment of customs duties with respect to imports carried out during the 1994-1996 reference period with licences obtained from the GATS-inconsistent quantities reserved for those operators under the previous regime, these operators are able to claim reference quantities under the revised regime for licence allocations from 1999 onwards. Therefore, former Category A service suppliers of Ecuadorian origin who have not benefited from licence allocations based on GATS-inconsistent criteria under the previous regime enjoy de facto less favourable opportunities to obtain access to import licences under the revised regime than those EC/ACP service suppliers who, as former Category B operators or ripeners, may prove payment of customs duties and licence usage for licences obtained on the basis of GATS-inconsistent allocation rules.
142. We note that the so-called single pot solution does not in itself raise problems of WTO inconsistency. On the contrary, it would seem at least in theory to provide for equal conditions of competition between wholesale service suppliers, against a background of varying degrees of economic incentive to import bananas from varying sources. However, it may well be that, when a single pot solution relies on a skewed reference period (i.e. 1994-1996), combined with certain criteria for licence allocation (such as actual importer/payment of customs duties), the de facto less favourable conditions of competition for Ecuadorian service suppliers are aggravated through the carry-on effects of the previous regime.

To continue with The Rules for "Newcomer" Licences

²¹⁴ In calculating estimates for third-country service suppliers in their entirety, Ecuador submits that under the previous regime, Category A primary importers obtained 37.905 per cent of the reference quantities under the previous regime (i.e. 57 per cent of 66.5 per cent). With respect to customs clearers, Ecuador assumes that two-thirds of the customs clearers were of non-ACP third-country origin, whereas one-third was of EC/ACP origin. Accordingly, 6.65 per cent of customs clearance reference quantities (i.e. 10 per cent of 66.5 per cent) went to third-country operators. This results in an overall licence entitlement of 44.6 per cent of the quantities physically imported for non-ACP third-country operators under the previous regime.

²¹⁵ The European Communities also submits that licence allocations to these major third-country operators were as follows: 1994: 598,857; 1995: 651,266; 1996: 726,782; changes: 1994-1995: 8.8 per cent; 1995-1996: 11.6 per cent; 1994-1996: 21.4 per cent.

²¹⁶ EC figures: 1989: 21,305 (reference quantities in tonnes); 1990: 30,514; 1991: 45,532; 1992: 72,592; 1993: 132,614; 1994: 267,511; 1995: 276, 804; 1996: 272,822.

²¹⁷ In the original dispute, the panel drew this conclusion on the basis that the average estimated volume ripened by EC-owned ripeners was, according to the complainants, 83.7 per cent of the overall ripening volume in the European Communities. The European Communities stated that between 20 and 26 per cent of the ripening capacity in the European Communities were foreign-owned, i.e. mainly by Chiquita, Dole and Del Monte. Panel reports on Bananas III, footnote 514.

²¹⁸ The EC accepts Ecuador's figures for primary importation and customs clearance, but recalculates Ecuador's figures concerning the distribution of reference quantities for ripening activities as follows. For purposes of breaking down ripening activities by third-country and EC/ACP origin, the ripening activities of both Category A and B operators were subdivided using a ratio of 78.5 per cent for EC/ACP operators and 21.5 per cent for non-ACP third-country operators. This results for Category A operators in 4 per cent for third-country operators and in 14.6 per cent for EC/ACP operators of the 18.6 per cent which represent the licence allocation for Category A ripening activities (i.e. 28 per cent of 66.5 per cent). For Category B operators this results in 1.8 per cent for third-country operators and in 6.6 per cent for EC/ACP operators of the 8.4 per cent which represent the licence allocation for Category B ripening activities (i.e. 28 per cent of 30 per cent). Consequently, in calculating the total share of reference quantities for non-ACP third-country wholesalers, the European Communities adds 4 per cent and 1.8 per cent for ripening activities effectuated by Category A and B operators of non-ACP third-country origin to Ecuador's estimate of 37.9 and 6.65 per cent so that the overall estimate for the share of licence entitlements of non-ACP third-country operators increases from Ecuador's estimate of 44.6 per cent to the EC's estimate of 50.35 per cent.

²¹⁹ Article 3.5(j) of the Agreement on Import Licensing Procedures provides that: "� consideration should be given as to whether licences issued to applicants in the past have been fully utilised during a recent representative period".

²²⁰ Panel reports on Bananas III, paragraphs 7.341, 7.353, 7.368, 7.393, 7.397.

²²¹ According to Article XXVIII(n) of GATS, a juridical person is:

²²² Appellate Body report on Japan - Taxes on Alcoholic Beverages, WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R, adopted on 1 November 1996, page 29.

²²³ Exhibit 15 to Ecuador's First Submission of the panel in the original dispute of 9 July 1996, referred to again in Ecuador's First Submission to the reconvened Panel of 2 February 1999.

²²⁴ Commission Working Document "Determination of Reference Quantities from 1995 Onwards" of 6 October 1993". The document further notes "� Obviously the licence usage method can only be used for the years when the common market organization was in place. Thus if it is decided to adopt this method there would be three years (1995-97) when both methods [i.e. licence usage and operator categories/activity functions] would have to be applied." (emphasis added).

²²⁵ "� [T]he burden of proof rests upon the party, whether complaining or defending, who asserts the affirmative of a particular claim or defense. If that party adduces evidence sufficient to raise a presumption that what is claimed is true, the burden then shifts to the other party, who will fail unless it adduces sufficient evidence to rebut the presumption." Appellate Body report on United States - Measures Affecting Imports of Woven Wool Shirts and Blouses from India, adopted on 23 May 1997, WT/DS33/AB/R, page 14.

²²⁷ Regulation (EC) No. 102/99 of 15 January 1999, O.J. L 11/16 of 16 January 1999.

²²⁸ Regulation (EC) No. 608/99 of 19 March 1999, O.J. L 75/18 of 20 March 1999.