World Trade
Organization

 
EC Measures concerning meat and meat products (hormones)

5. Temporal Application of the SPS Agreement

19. The European Communities states that the Panel's conclusion that the SPS Agreement applies to measures that were enacted before the entry into force of the SPS Agreement but that did not cease to exist after that date, is too sweeping. ²⁰ According to the European Communities, the SPS Agreement shows a different intention in some of its provisions, at least if these provisions are interpreted in the way proposed by the Panel. Articles 5.1 to 5.5 require that certain preparatory actions and procedures be followed before a measure is adopted and obligations of this kind are exhausted once the measures under consideration are adopted. The European Communities, therefore, concludes that the SPS Agreement does not apply to the procedure for the elaboration of the EC measures at issue in this dispute.

6. Article 3.1

20. The European Communities submits that the Panel erred in interpreting the term "based on" in stating that Article 3.2 "equates" measures "based on" international standards with measures which "conform to" such standards. ²¹ The European Communities asserts that these terms differ in their meaning.

21. It is pointed out by the European Communities that Article 3 employs the term "based on" in paragraphs 1 and 3, whereas it uses the term "conform to" in paragraph 2. Also, Article 2 distinguishes between "based on" (paragraph 2) and "conform to" (paragraph 4). This differing language in consecutive paragraphs of different articles cannot be accidental.

22. To the European Communities, a measure may deviate -- but not substantially -- from the content of a recommendation of the Codex and still be considered as "based on" that recommendation for the purposes of Article 3.1. However, what constitutes a "substantial" deviation is not defined in the SPS Agreement. The submission of the European Communities is that Article 3 of the SPS Agreement accomplishes its object of furthering international harmonization by allowing Members to choose one of three alternative options. First, a Member may opt to conform its sanitary measures to the Codex recommendations, in accordance with Article 3.2. Second, a Member may wish merely to "base [its] sanitary ... measures on international ... recommendations", in accordance with Article 3.1, instead of conforming to such recommendations. Third, a Member may decide, in accordance with Article 3.3, to establish sanitary measures which provide a "higher level of sanitary protection" than would measures "based on" the Codex recommendations. As noted above²², it is firm view of the European Communities that these three options are of equal standing and that Article 3.3 cannot be qualified as an exception to Article 3.1. The European Communities therefore objects to the Panel's interpretation of and conclusions concerning Article 3.1.

7. Article 3.3

23. The European Communities contends that the Panel's finding that whatever the difference might be between the two exceptions in Article 3.3, a sanitary measure can only be justified under this provision if it is consistent with the requirements contained in Article 5²³, in effect reduces the two alternative conditions in the first sentence of Article 3.3 to "mere surplusage". According to the European Communities, Article 3.3 defines the concept of the first condition ("scientific justification") in the footnote thereto without making a direct reference to Article 5, paragraphs 1 to 8, as it does with respect to the second condition ("as a consequence of choosing a higher level of protection"). The absence in the footnote to Article 3.3 of language referring to Articles 5.1-5.8 is in itself sufficient indication of the intention of the drafters to qualify the application of Article 5 in the case of the first condition. Thus, the European Communities asserts, the plain meaning and structure of Article 3.3 imply that the risk assessment requirements of Article 5 apply only if the second of these two alternative conditions is met.

8. Article 5.1

24. The European Communities contests the Panel's finding that Article 5.1 requires a Member imposing an SPS measure to submit evidence that it "took into account" a risk assessment when it enacted or maintained a measure²⁴, since neither the ordinary meaning of the words "based on", in context, nor the object and purpose of Article 5, suggest a "minimum procedural requirement" under Article 5.1.

25. The European Communities contends that to require concrete evidence in the preamble of the EC Directives or some other evidence that the European Communities actually considered the scientific studies in enacting or maintaining the measures at issue is unreasonable and arbitrary, and runs counter to the object and purpose of Article 5 and the SPS Agreement. There is no legal authority for the Panel's interpretation that risk assessment cannot be on-going and therefore no reason for restricting risk assessment to "old evidence". The European Communities asserts that there is a legitimate SPS goal of providing an opportunity for potentially affected Members to produce scientific evidence relevant to particular measures, and of ensuring consideration of that evidence by the Member adopting the SPS measure. Therefore, the European Communities submits that all parties and third parties should have the right to present "new" relevant evidence to the Panel.

26. With regard to the Panel's findings on the consistency of the import prohibition with the substantive requirements of Article 5.1, the European Communities claims that the Panel erred in its interpretation of Article 5.1 in six separate respects. First, the Panel was incorrect in distinguishing between studies that specifically address the hormones for growth promotion purposes, such as the 1982 Report of the EC Scientific Veterinary Committee ²⁵ (the "Lamming Report") and the JECFA Reports²⁶, and studies which relate to hormones in general, such as the 1987 IARC Monographs and articles and opinions of individual scientists referred to by the European Communities. ²⁷ The Panel's assumption that such a distinction makes a qualitative difference in terms of risk assessment is wrong, and the distinction is arbitrary. The European Communities argues that Articles 5.1 and 5.2 neither prescribe risk assessment techniques nor specify the requirements of a risk assessment.

27. Second, the Panel's view of Article 5.1 as imposing a substantive obligation on Members to conform their SPS measures to the conclusions reflected in the JECFA Reports or the reports of other scientific committees is manifestly incorrect. The "scientific basis" of SPS measures cannot be confined to the formalized conclusions of committees called upon to review or analyze the risks a substance may pose. Those conclusions are just one of the elements to be taken into account. The "available scientific evidence", referred to in Article 5.2, includes both generally held or majority scientific views as well as minority, or dissenting, scientific opinion (often first expressed by individual scientists). The European Communities also controverts the Panel's finding that the reports of the European Parliament are "non-scientific"²⁸, and contends that this finding is manifestly wrong, certainly as regards the so-called Pimenta Report. ²⁹

28. Third, the Panel's interpretation that "based on" within the meaning of Article 5.1 means "in conformity with" is mistaken. ³⁰ The European Communities states that reports of scientific committees frequently say practically nothing or very little on some of the factors indicated in Articles 5.1 and 5.2. To the European Communities, Article 5.1 is designed to compel Members to have some plausible scientific rationale as the "basis" for their sanitary measures, but not to conform their measures absolutely to the technical and scientific conclusions of the reports.

29. Fourth, the European Communities contends that the "most fundamental error of interpretation" of the Panel relates to the concept of risk and risk assessment. ³¹ "Risk" does not mean "harm" or "adverse effect". "Risk", for the purposes of the SPS Agreement, is the "potential" for the harm or adverse effects arising and, therefore, the mere possibility of risk arising suffices for the purposes of Articles 5.1 and 5.2. A risk evaluated to be one in a million is sufficient justification. If there is a potential for adverse effects (no matter how small), then there is, according to the European Communities, a risk. The concept of risk in the SPS Agreement is a qualitative, not a quantitative concept. Any identified increase in cancer (whether quantitative or qualitative) must be sufficient to constitute a risk against which WTO Members are entitled to protect their population.

30. Fifth, the European Communities disputes the Panel's finding that the problem of control is irrelevant to risk assessment³², as contrary to common sense and to the express language of Article 5.2 and Annex C of the SPS Agreement clarifies. The European Communities also points out that the condition "in accordance with good veterinary practice" is part of the content of the Codex recommendation, and that effective control is necessary to ensure that the hormones at issue are administered in accordance with good practice. Evaluation of any potential risk arising from lack of observance of good practice is an inherent part of the risk assessment exercise. Moreover, it was for the European Communities, and not for the Panel, to determine whether the control measures of an exporting Member are adequate to achieve the EC's appropriate level of sanitary protection. The Panel has disregarded the EC's arguments relating to the practical and technical difficulties that are specific to control of the hormones at issue. The European Communities also protests as an error in law the Panel's conclusion that banning the use of a substance does not necessarily offer better protection of human health than other means of merely regulating its use.

31. Finally, the European Communities submits that the Panel was manifestly wrong in finding that a risk assessment must be carried out for each individual substance. ³³ Nowhere in the SPS Agreement, and in particular in Articles 5.1 and 5.2, is there language requiring a risk assessment "for each individual substance". In the view of the European Communities, there is nothing to prevent classes or categories of substances from being assessed together if this is scientifically justified.

9. Article 5.5

32. The European Communities argues that the Panel erred in its interpretation of Article 5.5. With respect to the first element, namely, the existence of different levels of protection in different situations, the Panel erroneously interpreted Article 5.5 in holding that situations involving the same health risk or substance are comparable situations for the purposes of Article 5.5. ³⁴ The European Communities submits that it is inappropriate to compare the level of protection relating to hormones used for growth promotion purposes with the level of protection relating to naturally-occurring hormones. Science and the regulatory practices of Members do not treat man-made risks, such as the risks created by hormones used for growth promotion, and naturally-occurring risks, such as those arising from the presence of hormones in meat, milk, cabbage or broccoli, in the same way. The SPS Agreement applies only to man-made risks because the naturally-occurring hormones in meat and other foodstuffs are not "contaminants and toxins" within the meaning of the SPS Agreement. Furthermore, the European Communities submits that, contrary to what the Panel found³⁵, there is no difference, let alone a significant difference, in the EC level of protection against naturally-occurring hormones and its level of protection against added hormones. The EC measures provide for the same level of protection against naturally-occurring hormones and added hormones, namely, the risk determined by nature.

33. In respect of the second element of Article 5.5, namely, the arbitrary or unjustifiable nature of distinctions in levels of protection, the European Communities contends that the Panel has erroneously assumed that the only factors relevant to determining what is an arbitrary or unjustifiable distinction are "scientific" factors. Other factors, such as public perception of what is dangerous and of what level of risk is acceptable, and the benefit, if any, to be gained from shouldering a risk, must also be relevant. Moreover, the European Communities argues that, contrary to what the Panel found³⁶, the distinction between the level of protection adopted in respect of the hormones at issue when used for growth promotion and the level of protection adopted with respect to carbadox and olaquindox is not arbitrary or unjustifiable.

34. As to the third element of Article 5.5, namely discrimination or a disguised restriction on international trade resulting from the distinction in the levels of protection, the European Communities objects to the Panel's finding that it was sufficient to demonstrate "the significance of the difference in levels of protection combined with the arbitrariness thereof". ³⁷ Article 5.5 makes a resultant "discrimination or a disguised restriction on international trade" an additional element beyond arbitrary and unjustifiable distinctions in the levels of protection a Member considers appropriate. The European Communities does not consider the approach developed by the Appellate Body in Japan - Taxes on Alcoholic Beverages ³⁸ ("Japan - Alcoholic Beverages") and invoked by the Panel in this case as appropriate for the very different problem in determining discrimination (between countries) and a disguised restriction of trade in a regulatory regime designed to protect human health.

35. Furthermore, it is argued by the European Communities that Article 5.5 must be interpreted together with Article 2.3 of the SPS Agreement. Accordingly, "discrimination" in Article 5.5 means "discrimination between States where identical or similar conditions prevail". The Panel ignored Article 2.3 and assumed that discrimination can be between substances, risks and levels of protection. This assumption cannot be correct since otherwise the term "discrimination" would add nothing to "arbitrary and unjustifiable distinctions", in the view of the European Communities.

36. The European Communities stresses that there is no import ban for beef as such and that the restriction applies only to non-conforming products. This is the inevitable consequence of any SPS measure, and cannot be enough to establish a "disguised restriction on international trade". The European Communities continued to import the same amount of meat after the ban as before, and the prohibition of hormones for growth promotion has no effect on the surpluses of beef. The suggestion of the Panel that the reduction of beef surpluses in the European Communities might have been a secondary motive, is, in any event, not sufficient to establish the discrimination or disguised restriction on international trade contemplated in Article 5.5. Finally, the European Communities submits that the fact that 70% of the bovine meat produced in the United States and Canada is from cattle to which hormones have been administered for growth promotion is no indication of a disguised restriction on trade.

10. Procedural Issues

37. The European Communities asserts that a number of procedural decisions taken by the Panel were unfair and require review by the Appellate Body. The European Communities objects to the Panel's view that it need consider the EC's procedural objections only where the European Communities could make a "precise claim" of prejudice. ³⁹ The Panel should have asked itself whether its procedural decisions were consistent with the DSU, not whether the European Communities could make a precise claim of prejudice. It is asserted by the European Communities that the Panel committed a legal procedural error in refusing to accept the scientific assessments of the European Communities, declining to set up an expert review group, and proceeding to decide itself a scientific matter on which the Panel had no expertise. The Panel's decision to receive a range of opinions from individual experts ⁴⁰ deprived the European Communities of the procedural guarantees provided for expert review groups in the DSU. By following this procedure, the Panel put itself in a position to choose freely between different scientific opinions. The European Communities contends that the selection of scientific experts by the Panel violated Articles 11, 13.2 and Appendix 4 of the DSU as well as Article 13.2 of the SPS Agreement. The European Communities objects to the selection of two experts on the grounds that one of them was a national of a party or third party and had links with the pharmaceutical industry, while the other was a member of the Codex/JECFA group that had produced the report on the use of hormones in animal growth promotion and was the "rapporteur" of this study. Further, according to the European Communities, these two experts lacked expertise in the field.

38. The European Communities also alleges that the Panel erred in refusing to request that Canada and the United States provide the studies on which their authorities had based their decisions to authorize the use of MGA for growth promotion. In the view of the European Communities, the Panel had a duty to carry out an objective assessment of the facts, and declining to request the complainants to produce the evidence on which they based their own domestic decisions is not compatible with this duty. Moreover, Article 18.2 of the DSU provides safeguards for the protection of confidential information. Thus, the allegedly confidential nature of the information on MGA should have been no obstacle to its production and use in the proceeding. The European Communities also asserts that the Panel based the main part of its reasoning concerning Article 5.5 of the SPS Agreement on a claim that the complainants had not made, i.e. that there was a difference of treatment between artificially-added, or exogenous, natural and synthetic hormones when used for growth promotion purposes and the naturally-present endogenous hormones in untreated meat and other foods (such as milk, cabbage, broccoli or eggs). In the view of the European Communities, not only is this "claim" wrong in law and in fact, but the Panel also violated the DSU in relying on it especially since the United States expressly protested against the Panel's use of such a "claim". The European Communities asserts that panels are not entitled to make findings going beyond what has been requested by the parties.

39. The European Communities submits further that the Panel took a number of decisions granting "extended third party rights" to Canada and the United States -- and not to other third parties -- that are not justified by Article 9.3, and are contrary to Articles 7.1, 7.2, 18.2 and 10.3 of the DSU as well as the terms of reference of the Panel. These decisions were: first, to give access to all of the information submitted in the United States' proceeding to Canada; second, to give access to all the information submitted in the Canadian proceeding to the United States; third, to hold a joint meeting with the scientific experts; and fourth, to invite the United States to observe and make a statement at the second substantive meeting in the proceeding initiated by Canada.

B. Arguments by the United States - Appellee

1. Burden of Proof

40. With regard to the allocation of the burden of proof under Article 3.3 of the SPS Agreement, the United States refers to the Appellate Body Report in United States - Shirts and Blouses ⁴¹ and argues that, like Articles XX and XI:2(c)(i) of the GATT 1994, Article 3.3 of the SPS Agreement is not a positive rule establishing an obligation in itself. It is in the nature of an affirmative defence, and the Panel was therefore correct in finding that the burden of proof under Article 3.3 rests on the defending party. As to the burden of proof under Article 5.1 of the SPS Agreement, the United States contends that the European Communities, in complaining that Canada and the United States did not provide their confidential information concerning MGA, misses the point that the Panel had to determine whether the European Communities had based its import ban on a risk assessment.

2. Standard of Review

41. The United States submits that the deferential "reasonableness" standard of review advocated by the European Communities is without support in the text of either the DSU or the SPS Agreement. The United States observes that, under Article 5.1, the Panel was called upon to determine if the EC ban was "based on" an assessment, as appropriate to the circumstances, of the risks to human health. Such a determination does not require a panel to conduct its own risk assessment or substitute its own judgement regarding risks, but only to determine if the measure is "based on" a risk assessment. Under Article 2.2, the question for a panel is not whether it would have come to a different conclusion "based on" the evidence, but rather whether the scientific evidence submitted by the Member maintaining the measure is "sufficient" as a basis for that measure. The United States believes that in this sense, the European Communities is correct in asserting that a panel is not to conduct a de novo review of the scientific basis of the measure.

42. The United States argues, however, that nothing in the SPS Agreement or the WTO Agreement requires a Panel to defer to the Member maintaining the SPS measure. In examining measures under the Agreement on Textiles and Clothing (the "ATC"), which, like the SPS Agreement, does not provide for a particular standard of review, two previous panels found that it would not be appropriate either to apply a de novo standard of review or to grant undue deference to the administrative findings of national authorities. ⁴² The United States cautions that the GATT panel reports cited by the European Communities, involving anti-dumping and countervailing duty disputes, do not support the existence of a deferential standard of review in the SPS Agreement. Those GATT panel reports involved situations where national authorities had taken anti-dumping or countervailing duty measures pursuant to detailed national legislation and procedures mandated by the Tokyo Round Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade (the "Tokyo Round Anti-Dumping Code"). According to the United States, the Decision on Review of Article 17.6 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 shows that Members have yet to decide if the standard of review set out in Article 17.6 of the Anti-Dumping Agreement is capable of general application. The United States asserts that the European Communities is mistaken in arguing that this standard of review applies to the SPS Agreement.

3. The Precautionary Principle

43. In the view of the United States, the claim of the European Communities that there is a generally-accepted principle of international law which may be referred to as the "precautionary principle" is erroneous as a matter of international law. The United States does not consider that the "precautionary principle" represents a principle of customary international law; rather, it may be characterized as an "approach" -- the content of which may vary from context to context. The SPS Agreement does recognize a precautionary approach; indeed, Article 5.7 permits the provisional adoption of SPS measures even where the relevant scientific evidence is insufficient. Thus, the United States believes that there is no need to invoke a "precautionary principle" in order to be risk-averse since the SPS Agreement, by its terms, recognizes the discretion of Members to determine their own level of sanitary protection. The European Communities does not explain how "the precautionary principle" affects the requirements in the SPS Agreement that a measure be "based on" scientific principles and a risk assessment, and not maintained without sufficient scientific evidence. The EC's invocation of a "precautionary principle" cannot create a risk assessment where there is none, nor can a "principle" create "sufficient scientific evidence" where there is none.

4. Objective Assessment of the Facts

44. According to the United States, the European Communities improperly requests the Appellate Body to review the Panel's factual findings to determine whether they were either "inadequate" or "not objective", and thus inconsistent with Article 11 of the DSU. The United States submits that, according to Article 17.6 of the DSU, factual findings are clearly beyond review by the Appellate Body. Furthermore, the United States contends that the European Communities has not shown either improper influence or conflict of interest that might warrant consideration of the objectivity of the Panel.

5. Temporal Application of the SPS Agreement

45. The United States argues that the European Communities, in claiming that Articles 5.1 to 5.5 do not apply to SPS measures adopted before the SPS Agreement entered into force, has misread the SPS Agreement. There is no support for this claim in the text, context or negotiating history of the SPS Agreement. If the position of the European Communities were accepted, this would, in the view of the United States, leave a gaping exception to the disciplines of the SPS Agreement.

6. Article 3.1

46. According to the United States, since the EC measures are not "based on" the Codex standards, even under the broad test of "based on" proposed by the European Communities, there is no need for the Appellate Body to address the alleged difference between measures "based on" international standards and measures that "conform to" international standards. The United States recognizes that Article 3 of the SPS Agreement uses the two different terms in Articles 3.1 and 3.2, but suggests that whether any theoretical difference between those two terms would have any meaning in practice is a question for another case.

7. Article 3.3

47. The United States believes that the European Communities is incorrect in claiming that its ban need not be "based on" a risk assessment under Article 5.1 in order to qualify under Article 3.3 as a measure for which there is a "scientific justification" for departing from an international standard. A risk assessment provides the necessary "examination and evaluation of available scientific information" required in the footnote to Article 3.3. The European Communities provides no explanation why the "relevant provisions" of the SPS Agreement, referred to in that footnote, do not include Article 5.1. The context of the footnote to Article 3.3 includes the definition of "risk assessment" in Annex A of the SPS Agreement. According to the United States, the fact that Articles 5.1 and 5.2 relate to conducting a risk assessment make it clear that these Articles are "relevant provisions" of the SPS Agreement for purposes of the footnote, and that any doubt regarding the applicability of Article 5.1 is removed by the last sentence of Article 3.3.

8. Article 5.1

48. The United States maintains that the Panel's finding that there is a "procedural requirement" inherent in Article 5.1 is simply a common sense reading of Article 5.1. It would be difficult to see how a measure is "based on" a risk assessment if the Member did not even know of the existence of the risk assessment or never considered the risk assessment in enacting or maintaining the measure. Furthermore, the Panel Report should not be read as imposing a rigid requirement to be satisfied only by referring to the risk assessment in the preamble to the measure. Such a reference, the United States contends, is simply one means of demonstrating that a risk assessment was taken into account.

49. The Panel was correct, according to the United States, in finding that in order that a measure may be "based on" a risk assessment, the scientific principles underlying the measure must reflect the scientific conclusions reached by the scientists conducting the risk assessment. The United States submits that the European Communities did not, at any time during the panel proceedings, produce a risk assessment identifying any risk. In the case of the hormone MGA, it is even more obvious that the EC ban is not "based on" a risk assessment.

50. With regard to the problems of control of correct use of the hormones, the United States submits that the Panel correctly characterized the argument of the European Communities as being a general statement that there is no guarantee of 100 percent compliance with any system of laws. Such a generalized concern is not an adequate basis for the EC ban. Furthermore, there is no evidence that the control of the hormones at issue is more difficult than the control of other veterinary drugs (the use of which is allowed), or that control is more difficult under a regime where hormones are allowed for growth promotion under specific conditions than under a current regime where they are banned. During the oral hearing, the United States observed that the scientific studies indicated that the hormones are safe when used in accordance with good practice. According to the United States, these studies do not address the question of whether the hormones at issue are unsafe when not used in accordance with good practice.

51. As to whether a separate risk assessment is necessary for each particular substance, the United States submits that under Article 5.1, the European Communities must base its ban with respect to MGA on an "evaluation, as appropriate to the circumstances, of the potential for adverse effects on human health arising from the presence of residues of MGA in meat ...". The European Communities provided no such evaluation of MGA. The scientific studies that the European Communities referred to deal with a general class of compounds, and do not deal specifically with MGA.

9. Article 5.5

52. The United States supports the finding that the situation involving carbadox and the situation involving the six hormones at issue are different situations which can nonetheless be compared for the purposes of Article 5.5. To the United States, the Panel was correct in finding that the EC distinction in the levels of protection involving carbadox and the level of protection involving the hormones at issue was arbitrary and resulted in a disguised restriction on international trade. In coming to that conclusion, the Panel found that the hormones at issue, banned in the European Communities, were used for growth promotion purpose in the bovine meat sector where the European Communities wanted to limit supplies and was arguably less concerned with international competitiveness while carbadox, allowed in the European Communities, is used for growth promotion purposes in the pork meat sector where the European Communities has no domestic surpluses and where international competitiveness is a high priority. The United States claims that this issue relates to factual findings that are not reviewable by the Appellate Body.

Continue with EC Measures concerning meat and meat products (hormones)

²⁰ US Panel Report, paras. 8.25 and 8.26; Canada Panel Report, paras. 8.28 and 8.29.

²¹ US Panel Report, para. 8.72; Canada Panel Report, para. 8.75.

²² Para. 11 of this Report.

²³ US Panel Report, para. 8.83; Canada Panel Report, para. 8.86.

²⁴ US Panel Report, para. 8.113; Canada Panel Report, para. 8.116.

²⁵ 1982 Report of the EC Scientific Veterinary Committee, Scientific Committee for Animal Nutrition and the Scientific Committee for Food on the basis of the Report of the Scientific Group on Anabolic Agents in Animal Production.

²⁶ Evaluation of certain veterinary drug residues in food: Thirty-second Report of the Joint FAO/WHO Expert Committee on Food Additives, Technical Report Series 763 (World Health Organization, 1988); and the evaluation of certain veterinary drug residues in food: Thirty-fourth Report of the Joint FAO/WHO Expert Committee on Food Additives, Technical Report Series 788 (World Health Organization, 1989).

²⁷ US Panel Report, paras. 8.127 and 8.130; Canada Panel Report, paras. 8.130 and 8.133.

²⁸ US Panel Report, para. 8.109; Canada Panel Report, para. 8.112.

²⁹ European Parliament, Session Documents, Report drawn up on behalf of the Committee of Inquiry into the Problem of Quality in the Meat Sector, Rapporteur: Mr. Carlos Pimenta, Document A2-11/891/PARTS A-B, March 1989 ("Pimenta Report").

³⁰ US Panel Report, para. 8.117; Canada Panel Report, para. 8.120.

³¹ As reflected in para. 8.124 of the US Panel Report and para. 8.127 of the Canada Panel Report.

³² US Panel Report, para. 8.146; Canada Panel Report, para. 8.149.

³³ US Panel Report, para. 8.257; Canada Panel Report, para. 8.260.

³⁴ US Panel Report, para. 8.176; Canada Panel Report, para. 8.179.

³⁵ US Panel Report, paras. 8.191 and 8.212; Canada Panel Report, paras. 8.194 and 8.215.

³⁶ US Panel Report, para. 8.238; Canada Panel Report, para. 8.241.

³⁷ US Panel Report, para. 8.184; Canada Panel Report, para. 8.187.

³⁸ Adopted 1 November 1996, WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R.

³⁹ US Panel Report, paras. 8.14-8.15; Canada Panel Report, paras. 8.18-8.19.

⁴⁰ US Panel Report, para. 8.7; Canada Panel Report, para. 8.7.

⁴¹ Adopted 23 May 1997, WT/DS33/AB/R, pp. 14 and 16.

⁴² The United States refers to: Panel Report, United States - Underwear, adopted 25 February 1997, WT/DS24/R; and Panel Report, United States - Shirts and Blouses, adopted 23 May 1997, WT/DS33/R.