World Trade
Organization

 
EC Measures concerning meat and meat products (hormones)

10. Procedural Issues

53. The United States asks the Appellate Body to dismiss each of the procedural claims raised by the European Communities. The appeal by the European Communities on these issues, the United States claims, raises a threshold question as to whether, and if so, under what circumstances, the procedures employed by the Panel during the proceeding could be considered to be issues of law covered in the Panel Report or legal interpretations developed by the Panel within the meaning of Article 17.6 of the DSU. The United States asserts that the European Communities has not pointed to any textual basis for its arguments, nor to any past practice under the GATT 1947 or the WTO Agreement. The United States submits that, to sustain a claim that a panel's handling of procedural issues was inconsistent with the DSU, a party to a dispute must have raised objections in a timely manner during the panel proceeding, if feasible. In the view of the United States, any other response to procedural objections will weaken the authority of panels and destabilize the dispute settlement system. It would also be fundamentally unfair to permit a party to wait and see what the outcome of a panel proceeding is and make its procedural objections only when it is too late for the panel to address them. The United States urges that the objections raised by the European Communities should be rejected to the extent that they were not first made to the Panel.

54. With respect to the EC's objection concerning the Panel's selection of experts, the United States observes that during the panel proceeding, the European Communities did not object to the participation of two experts who are not only nationals of the Member States of the European Union, but are also employed by institutions of such Member States. As to the EC's objection to the alleged links of one of the experts to the pharmaceutical industry, the United States asserts that the European Communities did not question these links at the time this expert's name was raised by the Panel, even though the European Communities expressed similar concerns at that time with regard to two other scientists proposed by the Panel.

55. Turning to the issue of whether a procedural objection should be based on a "precise claim" of prejudice, the United States believes that while a Panel clearly has the duty of following the relevant rules of the DSU and the covered agreements, a party seeking the reversal or a modification of a procedural ruling should assume the responsibility of providing concrete reasons and legal arguments justifying its objection. Otherwise, every procedural ruling of a Panel could be subject to objections posed for unspecified reasons.

56. The United States asserts that the Panel's decision to consult individual experts, instead of convening an expert review group, was consistent with the DSU and the SPS Agreement. The European Communities itself concedes that Article 13 of the DSU and Article 11.2 of the SPS Agreement are permissive, and not mandatory, provisions. The United States contends that the Panel was not required to convene an expert review group, either under the terms of Article 13 of the DSU or Article 11.2 of the SPS Agreement. If the Panel had convened an expert review group, the rules and procedures of Appendix 4 of the DSU would have been applicable. Since the Panel did not convene such a group, the Panel's decision not to follow the rules and procedures of Appendix 4 was completely consistent with the DSU and was within the discretion accorded to panels in their procedural decisions.

57. The United States contends that the Panel's harmonization of the two panel proceedings did not impair the rights of defence of the European Communities. The use of the same panelists for both proceedings accorded a procedural advantage to the European Communities. According to the United States, rather than having two meetings with each of the two separate Panels, the European Communities was able to have four sessions with the same Panel. The European Communities willingly agreed to have the same panelists in both proceedings.

58. With respect to the issue of extended third party rights, the United States submits that the European Communities failed to make to the Panel the detailed objections it made for the first time in its appellant's submission. There is no reason why, if one panel may grant such rights in one dispute, another panel may not also grant such rights in another dispute. ⁴³ The United States believes that there were strong reasons to provide it with extended third party rights in the Canadian panel proceeding. The United States asserts that the European Communities is mistaken in asserting that the Panel's grant of extended third party rights gave the complainants access to documents. Both the United States and the European Communities made public their submissions and statements to the Panel in the United States' panel proceeding, and therefore Canada already had access to all these documents.

C. Arguments by Canada - Appellee

1. Burden of Proof

59. On the matter of allocation of the burden of proof under the SPS Agreement in general, Canada contends that the Panel adopted the reasoning provided by the Appellate Body in United States - Shirts and Blouses. ⁴⁴ As to the allocation of the burden of proof under Article 3.3 of the SPS Agreement, Canada insists that the Panel's findings are correct, although it would be more accurate to hold that "... the burden of proof under Article 3.1 shifts to the defending party to show either that the measure in dispute is consistent with the obligation in Article 3.1, or to invoke the exception under 3.1 and show that it meets the conditions of that exception". ⁴⁵ Should the Appellate Body reverse or modify the Panel's findings on the burden of proof, Canada submits that in any event, Canada has established a prima facie case of violation. With regard to the burden of proof under Article 5.1 of the SPS Agreement, Canada believes that it had provided sufficient evidence concerning the import ban on meat treated with MGA to establish a prima facie case.

2. The Precautionary Principle

60. The Panel did not take a position on whether the "precautionary principle" constituted part of the body of international law. Rather, in Canada's view, the Panel acknowledged that the "precautionary principle" was reflected in Article 5.7 of the SPS Agreement, and correctly held that the "precautionary principle" could not override Articles 5.1 and 5.2, or any other provision of the SPS Agreement. Canada also regards the issue of whether the "precautionary principle" is "built into" other provisions of the SPS Agreement as irrelevant in this appeal. Moreover, the European Communities has not explained what is meant by the "precautionary principle" having been "built into" other provisions of the SPS Agreement, and how this could in any way affect the conclusions of the Panel. The "precautionary principle" should be characterized as the "precautionary approach" because it has not yet become part of public international law. Canada considers the precautionary approach or concept as an emerging principle of international law, which may in the future crystallize into one of the "general principles of law recognized by civilized nations", within the meaning of Article 38(1)(c) of the Statute of the International Court of Justice.

3. Objective Assessment of the Facts

61. Canada submits that many of the claims made by the European Communities in its appellant's submission purport to be claims relating to errors of law but are in reality claims alleging errors of fact. The Appellate Body made it clear in its Report in European Communities - Bananas⁴⁶, that factual findings are, pursuant to Article 17.6 of the DSU, beyond review by the Appellate Body.

4. Temporal Application of the SPS Agreement

62. Canada argues that the distinction drawn by the European Communities between provisions of the SPS Agreement that include the terms "maintain" or "apply", and others that do not, is not sustainable. This dichotomy presented by the European Communities would mean that measures in existence on 1 January 1995 are indefinitely exempt from the disciplines of Articles 5.1 and 5.5, but it is hardly credible that the Members intended to exempt them. Other covered agreements contain specific provisions dealing with temporal issues, therefore, non-application of provisions of the SPS Agreement, such as Articles 5.1 and 5.5, would have been dealt with expressly in the text of the SPS Agreement. In any event, the EC measures at issue in this dispute include EC Directives 96/22/EC and 96/23/EC, which were adopted after the WTO Agreement entered into force.

5. Article 3.1

63. Canada maintains that the EC's argument that Article 3.1 does not constitute a "general obligation", but is one of three options available to Members when Codex recommendations exist, is incorrect. Article 3.1 sets out a positive obligation for Members to base their SPS measures on international standards, guidelines or recommendations. The words of Article 3.1 do not describe three "options". If the drafters of the agreement had intended such a meaning, they would have said so. Canada supports the Panel's conclusion that the terms "conform to" and "based on" are "co-extensive". Even if the Appellate Body accepts the view that "conforms to" is narrower in scope than "based on", Article 3.1 does not present a second "option", as argued by the European Communities. A measure that "conforms to" an international standard would also be "based on" that standard.

6. Article 3.3

64. The key element of the footnote to Article 3.3 is that it requires an examination and evaluation of available scientific information. Since the SPS Agreement defines a risk assessment as: "the evaluation of the potential for adverse effects on human ... health ...", the "examination and evaluation of scientific information" in the footnote to Article 3.3 refers to a risk assessment. A Member cannot, in Canada's view, determine that the relevant international standards are not sufficient to achieve its appropriate level of sanitary protection unless the Member does an evaluation of that risk (i.e. a risk assessment), taking into account available scientific evidence.

7. Article 5.1

65. Canada considers that the Panel's interpretation of Article 5.1 accords with the ordinary meaning of the words in their context. If a measure is "founded on" a risk assessment then there must be some evidence that the measure was built upon that foundation. Such a requirement would not amount to "freezing the scientific record", since the Panel made clear that it was looking for evidence that a risk assessment was taken into account when the EC measures were established or at any later point in time. In Canada's view, the Panel's reading of Article 5.1 is sound, and accords with the basic obligations set out in Article 2.2 that a measure must not be maintained without sufficient scientific evidence. If the scientific conclusions reflected in the EC measures do not conform with any of those reached in the risk assessments, then the scientific foundation for the measure clearly does not come from those risk assessments.

66. Canada submits that in defining what is a risk assessment, the European Communities focuses on the word "potential" to the exclusion of "evaluation". In doing so, the European Communities has stopped the process at identifying an adverse effect without carrying out the evaluation of the risk, i.e. performing a risk assessment.

67. At the oral hearing, when asked about the need for a separate risk assessment of each individual substance, Canada opined that one can use characteristics of chemical families as a starting point for exploring whether something might pose a hazard, but it is then necessary to go on and do a full evaluation of that chemical in order to determine whether it in fact poses a hazard.

8. Article 5.5

68. According to Canada, the scope of "different situations" referred to in Article 5.5 is at least as broad as the Panel found. The limited scope suggested by the European Communities conflicts with the ordinary meaning of "different situations". Canada also submits that in the light of the object and purpose of the SPS Agreement and the context of Article 5.5, there is no reason to limit the scope of comparison between levels of protection for human health. In Canada's view, the Panel correctly found that the European Communities had not justified the distinctions in its purported levels of protection. The Panel did not "confine" the range of factors to be taken into consideration; the Panel considered all the arguments the European Communities had provided, but found them wanting. Canada contests the argument of the European Communities that the significance of the difference in levels of protection is no guide to the significance of trade effects. No measure could be more trade restrictive than an import ban.

9. Procedural Issues

69. Canada submits that all of the procedural rulings made by the Panel were fair to all the parties, did not result in any prejudice or injustice, and were within the Panel's jurisdiction and discretion. In particular, Canada believes that the Panel acted within its jurisdiction in making comparisons and findings with respect to the levels of protection for endogenous natural hormones, even if those precise arguments on Article 5.5 of the SPS Agreement were not made by Canada or the United States. Article 11 of the DSU does not limit the mandate of the Panel by compelling it to use only the arguments made by the parties. A panel is not prevented from making an objective finding that does not correspond to either party's argument.

70. Concerning the Panel's decision to consult experts in their individual capacities, rather than as an expert review group, Canada submits that the process chosen by the Panel ensured that all the views of the experts advising the Panel were brought to the Panel's attention. Far from prejudicing the European Communities, this process gave the European Communities an opportunity to elicit evidence to support its arguments from any of the Panel's experts. While Article 11.2 of the SPS Agreement provides that in disputes involving scientific or technical issues, a Panel should seek advice from experts chosen by the Panel in consultation with the parties to the dispute, this provision does not require the Panel to accept all expert advice without scrutiny. Canada submits that, to the contrary, the Panel had no authority to delegate its fact-finding duty to the experts in such a manner.

71. It is also submitted by Canada that the objection of the European Communities to the nationality of the experts selected to assist the Panel is without merit. Canada is unaware that the European Communities raised any such objection during the Panel's selection of experts. In Canada's view, by suggesting an expert who was a national of one of its Member States, the European Communities waived its right to object to the other scientists on the basis of their nationality. The Panel's decisions on "extended third party rights" were proper exercises of the Panel's discretion, and are not inconsistent with the DSU. The European Communities made references to materials that it had placed before the US Panel, but did not provide those materials in the Canada Panel proceeding. Thus, according to Canada, rather than prejudice the EC case, the Panel allowed all the submissions by the European Communities before the US Panel to be considered by the Canada Panel. Canada maintains that the decision of the Panel to convene a joint meeting of the experts was also within the discretion of the Panel. The European Communities has failed to demonstrate that it suffered any substantive prejudice as a result of this decision. In Canada's view, pursuant to Article 11 of the SPS Agreement, the Panel was entitled to seek advice from experts chosen by the Panel in consultation with the parties, but was under no obligation to convene a meeting with the experts, either severally or jointly.

D. Claims of Error by the United States - Appellant

1. Article 2.2

72. In its capacity as appellant, the United States submits that the Panel erred because, having made all of the findings necessary to find that the EC measure was inconsistent with Article 2.2, it did not take the final step and declare the import ban to be inconsistent with Article 2.2. ⁴⁷ Article 2.2 requires the European Communities to have sufficient scientific evidence to support its measure. Since the Panel methodically listed and reviewed all of the scientific evidence presented by the European Communities, and in respect of each piece of evidence made a factual finding that the evidence did not support the EC measure, the United States submits that the Panel should have come to the legal conclusion that the EC import prohibition is maintained without sufficient scientific evidence. In the view of the United States, there was no need for the Panel to determine exactly how much scientific evidence is "sufficient" for purposes of Article 2.2. The Panel found that the European Communities had presented no evidence to support its ban; "no evidence" cannot be considered to meet the threshold of "sufficient evidence".

73. In justifying why it made no finding under Article 2.2, the Panel stated that Articles 3 and 5 provide for more specific obligations than the "basic rights and obligations" set out in Article 2. According to the United States, Articles 3 and 5 of the SPS Agreement do not necessarily provide for more specific rights and obligations than all of the "basic rights and obligations" set out in Article 2. Neither Article 3 nor Article 5 says how much evidence is necessary to support an SPS measure. Article 2.2 establishes that quantum of evidence in requiring that measures not be maintained "without sufficient scientific evidence". The United States submits, therefore, that nothing in the text of Articles 2, 3 or 5 indicate that all of the obligations in Article 2 are subsumed under the provisions of Articles 3 and 5.

2. Article 5.6

74. It is urged by the United States that the Panel erred ⁴⁸ in failing to make a finding under Article 5.6 of the SPS Agreement, and that the Panel's findings on Article 5.5 are sufficient to establish that the EC ban is inconsistent with Article 5.6 of the SPS Agreement. The United States notes that the European Communities prohibits the use of the natural hormones to promote growth, while having no limits on the residues of these exact same substances either naturally-present or used for therapeutic or zootechnical purposes. Since the European Communities accepts the residues of these naturally-occurring hormones in meat as safe, then the EC ban is, in the view of the United States, more trade restrictive than required.

75. The United States also notes that the European Communities prohibits the use of the three synthetic hormones at issue, while permitting the use of similar hormones (the three natural hormones) for therapeutic and zootechnical purposes as well as the use of carbadox, another synthetic compound, for growth promotion purposes. In the view of the United States, the European Communities has, in each instance, chosen the most trade restrictive approach (a ban on trade) with respect to the six hormones for growth promotion purposes. The United States argues that the European Communities could permit residues of these hormones used for growth promotion purposes at the same levels that it permits for other purposes and still achieve its level of protection. The fact that the European Communities permits these levels for these other purposes demonstrates that similarly treating residues from growth promotion would be reasonably available to the European Communities and would be technically and economically feasible. Permitting these levels for growth promotion purposes would also be significantly less trade restrictive than the current EC ban.

76. The Panel found that "no scientific evidence is available which concludes that an identifiable risk arises from the use of any of the hormones at issue for growth promotion purposes in accordance with good practice." ⁴⁹ In the view of the United States, this finding is sufficient in itself to establish that the EC ban is inconsistent with Article 5.6. If there is no identifiable risk from the use of these hormones for growth promotion in accordance with good practice, then the EC ban cannot be necessary to achieve a level of protection from an identified risk. The ban is then, by definition, more trade restrictive than required to achieve the appropriate level of sanitary protection by the European Communities.

E. Claims of Error by Canada - Appellant

1. Article 5.6

77. Canada states that its appeal is designed to safeguard its right to rely on its arguments presented to the Panel with respect to Article 5.6, in the event that the Appellate Body decides to modify or reverse the Panel's findings with respect to Articles 3.1, 5.1 or 5.5 of the SPS Agreement. Canada asserts that the EC measures are inconsistent with Article 5.6 of the SPS Agreement. Canada submits that according to the wording of paragraph 5 of Annex A, Article 5.5 and the object and purpose of the SPS Agreement, if there is no scientific evidence of an identifiable risk, there is no basis on which to adopt a measure to achieve a level of sanitary protection under the SPS Agreement, except as provided in Article 5.7.

78. In Canada's view, if a Member could adopt a level of protection and implement a sanitary measure even if it did not provide scientific evidence of an identifiable risk, no effect could be given to the obligation contained in Article 5 to base measures on an assessment of risks. This approach would undermine the wording and object and purpose of the SPS Agreement. Canada notes that the Panel found that the European Communities had not provided any scientific evidence of an identifiable risk related to the hormones at issue when used for growth promotion purposes in accordance with good practice. ⁵⁰ If there is no scientific evidence of an identifiable risk, and therefore no basis on which to adopt a measure to achieve a level of sanitary protection under the SPS Agreement, except for Article 5.7, then by definition, no SPS measure could be adopted that would not be more trade restrictive than required. In Canada's conclusion, applying the Panel's findings with respect to the six hormones at issue to the requirements of Article 5.6, the EC measures are more trade restrictive than required, and inconsistent with Article 5.6.

F. Arguments by the European Communities - Appellee

1. Article 2.2

79. The European Communities questions whether the statement of the Panel regarding Article 2.2 amounts to an issue of law covered in the Panel Report or a legal interpretation developed by the Panel in the sense of Article 17.6 of the DSU. Although the Panel declined to rule on Article 2.2 because of a legal interpretation reached by the Panel regarding the relationship between Articles 2 and 5 of the SPS Agreement, the refusal by the Panel to rule on Article 2.2 places this statement outside the scope of appellate review. The Panel did not address the substantive requirements of Article 2.2, and has not made the necessary findings on whether the scientific evidence submitted by the European Communities is sufficient. The European Communities agrees with the United States that nothing in the text of Articles 2, 3 and 5 of the SPS Agreement indicates that all of the obligations set out in Article 2 are subsumed under the provisions of Articles 3 and 5. From the factual, procedural and substantive points of view, the questions that need to be considered under Article 2.2 are different from those examined by the Panel under Articles 3.1, 5.1, 5.2 and 5.5 of the SPS Agreement. It appears to the European Communities that there is no "sufficient basis" in the Panel Report for the Appellate Body to rule on the claims of the United States in respect of Article 2.2. Moreover, the United States bases its claims on certain paragraphs of the Panel Report that are founded on a manifest misunderstanding or clear distortion of the facts, or inadequate reasoning by the Panel, as explained by the European Communities in its own appeal.

80. The European Communities submits that, should the Appellate Body examine the applicability of Article 2.2 of the SPS Agreement, it should also examine the applicability of Article 5.7, which is expressly referred to in Article 2.2. The European Communities believes that its measures are consistent with Article 2.2 of the SPS Agreement.

81. The European Communities observes that in its appeal, the United States does not discuss what constitutes "sufficient" scientific evidence. Since the concepts of "risk" and "risk assessment" in the SPS Agreement are not quantitative, but qualitative concepts, the word "sufficient" also cannot be taken to refer to the quantitative, but rather to the qualitative, aspects of the scientific evidence used by the regulatory authorities of a Member. The use of the words "scientific principles" in the same Article reinforces the view that Article 2.2 and the SPS Agreement in general do not require sanitary measures to be "based on" the "best" scientific evidence or the "weight" of available scientific evidence. The European Communities submits, therefore, that the real question is not whether the sanitary measure is "based on" the "best" science or the "preponderance" of science or whether there is conflicting science. Rather, the question is only whether the government maintaining a measure has a scientific basis for that measure.

2. Article 5.6

82. The European Communities also questions whether the statements of the Panel regarding Article 5.6 amount to an issue of law covered in the Panel Report or a legal interpretation developed by the Panel, for purposes of Article 17.6 of the DSU. Although the Panel's refusal to rule on Article 5.6 rests on a certain view of the Panel regarding the relationship between Articles 2 and 5 of the SPS Agreement, such a refusal places the matter outside the scope of appellate review. The European Communities submits that the Panel did not apply the substantive requirements of Article 5.6, and did not make the necessary factual findings that: first, the EC measures are more trade restrictive than required to achieve the EC's level of protection; secondly, there is another measure reasonably available taking into account technical and economic feasibility; and thirdly, this other measure both achieves the EC's level of sanitary protection and is significantly less trade restrictive. Finally, the European Communities argues that Canada and the United States base their claims on certain paragraphs of the Panel Report that are founded on a manifest misunderstanding or clear distortion of the facts or inadequate reasoning by the Panel, as the European Communities has explained in its appeal.

83. The European Communities is convinced that the EC measures are consistent with Article 5.6 of the SPS Agreement. According to the European Communities, the objective is to ensure that consumers are not exposed to any residues of hormones used for growth promotion purposes. The European Communities acknowledges that some hormones are present naturally and cannot be avoided. It also acknowledges that some hormones are administered to cattle for therapeutic and zootechnical purposes, purposes which are unavoidable and beneficial. However, the European Communities has decided that the exposure of its population to hormones above this level should be avoided, and that in particular, there should be a zero level of tolerance for hormones used for growth promotion purposes.

84. The European Communities has considered some possible alternatives to the prohibition of imports of bovine meat containing residues of hormones administered for growth promotion: first, the application of Maximum Residue Limits ("MRLs") to such meat; second, the application of some kind of control to all imports of meat to determine whether hormones had been administered for growth promotion purposes; and third, reliance on the exporters labelling their meat to indicate whether hormones had been administered for growth promotion purposes. According to the European Communities, however, none of the above alternative measures would achieve the specified level of protection.

G. Arguments by the Third Participants

1. Australia

85. Australia considers that the Panel erred in law in its general interpretations concerning the burden of proof under the SPS Agreement⁵¹, and supports the arguments put forward by the European Communities. However, it is also contended by Australia that paragraphs 8.54 and 8.58 of the Canada Panel Report and paragraphs 8.51 and 8.55 of the US Panel Report present correct interpretations of the burden of proof and that the Panel has, in general, followed these correct interpretations in its legal reasoning and findings.

86. The conclusion reached by the Panel with regard to the temporal application of the SPS Agreement is also supported by Australia. However, Australia also recognizes the concerns raised by the European Communities and agrees that there is nothing in the SPS Agreement that could be interpreted to mean that measures already in place at the time the SPS Agreement came into force are necessarily inconsistent simply because the "preparatory and procedural obligations" provided in Article 5 may not have been met. On the other hand, Australia admits that nothing in the SPS Agreement suggests that such measures can escape application of key provisions, such as Articles 5.1 and 5.2.

87. The Panel's interpretation that the SPS Agreement "equates" the terms "conform to" and "based on" ignores, in Australia's view, the ordinary meaning of these terms in their context and fails to give effect to all the terms of the SPS Agreement. The Panel has ignored the significant fact that the SPS Agreement uses the expression "conform to" in both Article 3.2 and Article 2.4, i.e. in the two situations where rebuttable presumptions are established that certain measures are consistent with the SPS Agreement and/or the GATT 1994. Australia believes that the issue of whether a particular measure is "based on" an international standard, or "conforms to" such a standard, is something which can only be determined on a case-by-case basis.

88. The Panel failed to give effect to all the terms of the SPS Agreement by its treatment of the two options provided in Article 3.3. According to Australia, the Panel has ignored the differences in the wording of the two options, and their explicit identification as alternatives by the use of the word "or" in Article 3.3. This interpretation has resulted in the Panel concluding that both alternatives mean that a measure can only be justified under Article 3.3 if it meets the requirements of Article 5. In Australia's view, while a Member's determination under the first of these options must be "based on" an examination and evaluation of available scientific information "in conformity with" the relevant provisions of the SPS Agreement, there remains an important distinction between the two options which the Panel failed to recognize.

89. Australia also considers as erroneous the Panel's interpretation of "risk", specifically its use of the term "identifiable risk", which has no basis in the text of the SPS Agreement. What the Panel is required to examine under Articles 5.1 and 5.2 is whether the EC measure is "based on" a risk assessment, and not whether there was an "identifiable risk".

90. In discussing whether there is a need for a separate risk assessment for each individual substance, Australia draws particular attention to the wording of Article 5.1 providing for a risk assessment "as appropriate to the circumstances". This wording expressly recognizes that what constitutes an appropriate risk assessment may differ from case to case. In the view of Australia, the determination of whether a risk assessment is required for a particular individual substance should therefore be made on a case-by-case basis. The Panel recognized that in order to find an SPS measure inconsistent with Article 5.5 all elements of this provision need to be present ⁵² but the Panel, nevertheless, gave undue weight, in the view of Australia, to the significance of the distinction in the levels of protection. The Panel's reference to the Appellate Body Report in Japan - Alcoholic Beverages ⁵³ concerning the requirements of Article III:2 of the GATT 1994 was misleading and inappropriate.

91. Although Australia supports the view of the United States that the EC measures are inconsistent with Article 2.2 of the SPS Agreement, Australia does not believe there was any need for the Panel to make such a finding.

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

⁴³ The United States refers to Panel Report, European Communities - Regime for the Importation, Sale and Distribution of Bananas, adopted 25 September 1997, WT/DS27/R/USA ("European Communities - Bananas").

⁴⁴ Adopted 23 May 1997, WT/DS33/AB/R.

⁴⁵ Canada's appellee's submission, para. 59.

⁴⁶ Adopted 25 September 1997, WT/DS27/AB/R.

⁴⁷ US Panel Report, para. 8.271.

⁴⁸ US Panel Report, para. 8.247.

⁴⁹ US Panel Report, para. 8.134.

⁵⁰ Canada Panel Report, paras. 8.165 and 8.264.

⁵¹ US Panel Report, paras. 8.52-8.54; Canada Panel Report, paras. 8.55-8.57.

⁵² US Panel Report, para. 8.174; Canada Panel Report, para. 8.177.

⁵³ Adopted 1 November 1996, WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R.