EUROPEAN COMMUNITIES � CUSTOMS CLASSIFICATION
OF FROZEN BONELESS CHICKEN CUTS
Notification of an Other Appeal by Thailand
under Article 16.4 and Article 17 of the Understanding on
Rules
and Procedures Governing the Settlement of Disputes (DSU),
and under Rule 23(1) of the Working Procedures for
Appellate Review
The following notification, dated 27 June 2005, from the
Delegation of Thailand, is being circulated to Members.
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Pursuant to Article 17.4 of the Understanding on Rules and
Procedures Governing the Settlement of Disputes (the "DSU") and Rule 23 of the
Appellate Body's Working Procedures for Appellate Review, Thailand hereby
notifies its decision to appeal to the Appellate Body certain issues of law
covered in the Panel Report European Communities � Customs Classification of
Chicken Cuts, WT/DS286/R, (the "Panel Report") and certain legal
interpretations developed by the Panel in that Report.
Thailand seeks appellate review of:
(a) the Panel's findings and conclusion set out in
paragraphs 7.25�7.32, that EC Regulation No. 1871/2003 and EC Regulation
No. 2344/2003 are outside its terms of reference;
(b) the Panel's findings and conclusion, set out in
paragraphs 6.17, 6.18, 7.36 and 7.37, that the products included in the
Panel�s terms of reference are limited to frozen boneless chicken cuts
impregnated with salt, with a salt content of 1.2%- 3%;
(c) the Panel's findings and conclusion, set out in
paragraph 7.223, that all the "Explanatory Notes" of the Harmonized
System cited by Thailand are "non-binding" and do not further clarify
the interpretation of the concession in heading 02.10 of the EC
Schedule; and,
(d) the Panel's findings and conclusion, set out in
paragraph 7.238, that General Rule for the Interpretation of the
Harmonised System 3 ("General Rule 3") is not applicable.
The above findings and conclusions are based on the following
legal errors:
- the Panel's error in determining the scope of
its terms of reference with respect to the measures at issue based
on its interpretation, inter alia, that Thailand's panel
request was not broad enough in its formulation to include EC
Regulation No. 1871/2003 and EC Regulation No. 2344/2003. (paras.
7.16�7.32 of the Panel Report);
- the Panel's error in determining the scope of
its terms of reference with respect to the products at issue by
interpreting that the product at issue is determined by the measures
the Panel considered to be within its terms of reference and not by
the product described by Thailand in its request for the
establishment of a panel. (paras. 7.36 and 7.37 of the Panel
Report);
- the Panel�s error in applying Article 31 of the
Vienna Convention on the Law of Treaties with respect to its
analysis of relevant aspects of the Harmonized System for the
interpretation of the concession in heading 0210 of the EC Schedule.
In particular, Thailand considers that the Panel erred in finding
that the HS Explanatory Notes to heading 02.10 and Chapter 2 and the
Note to Chapter 16 are not helpful to clarify the ordinary meaning
of the term "salted" in the concession contained in heading 02.10 of
the EC Schedule. Thailand also considers that the Panel incorrectly
characterised the Note to Chapter 16 as an Explanatory Note when it
is in fact a Chapter Note that forms part of the Harmonized System
and is therefore binding. (paras. 7.206�7.223 of the Panel Report);
and
- the Panel's error in deciding not to apply
General Rule 3. The Panel improperly relied on the parties' position
that � in their view � the product at issue does not fall prima
facie under two or more headings and consequently erred in
failing to provide its own analysis of whether the product at issue
prima facie falls under two or more headings. (paras.
7.224�7.241.)
Thailand requests the Appellate Body to review the above
findings or conclusions of the Panel. The provisions of the Marrakesh Agreement
Establishing the WTO that Thailand considers the Panel to have erroneously
interpreted or applied are heading 0210 of the EC Schedule read in conjunction
with Article II:1(a) and II:1(b) of the GATT 1994, as well as Article 3.7, 6.2
and Article 7 of the DSU.
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