(iii) Issues of "Actual Importer" and of de facto discrimination

61. Ecuador submitted that the de facto discrimination in the EC's old licensing system persisted in the new system because of the EC's choice of criteria. By allocating licences on the basis of "actual importer", the European Communities had ensured that the predominantly EC and ACP services suppliers, to whom Category B, ripener, and hurricane licences were granted for importing Latin American bananas in the old system, would retain rights to most of those licences in the new one. Ecuador considered that the entire EC analysis of the GATS issues focused not on whether its amended system was in conformity with its GATS obligations, but on particular modifications that it claimed were responsive to the panel and AB findings. ¹¹¹
62. In the opinion of Ecuador, the heart of the EC's argument was that - as a matter of law - there could be no de facto discrimination in the amended system because the European Communities had changed the facts. There is no de facto discrimination did not follow from (i) the Panel found the prior system to discriminate de facto; and (ii) the European Communities had abolished aspects of the old system found to discriminate. Ecuador did not claim that nothing had changed in the EC licensing system. The question in this Article 21.5 proceeding, however, was not whether the prior system had changed, but whether the system that replaced it was de iure or de facto discriminatory against Ecuadorian and other third-country services suppliers, and thus inconsistent with the EC's GATS obligations. Ecuador submitted that the persistence of the discrimination in the old system in the new system was not an "assumption" by Ecuador, but was inherent in the architecture of the new system, in particular in its reliance on the EC's definition of "actual importer" to determine who qualified for licences. That is, the logic of the prior system was that rational operators would generally have ensured that their licences were used in their names rather than traded. In defining "actual importer" by that behaviour, the European Communities had ensured that operators who were in the "abolished" categories would retain licence allocations in the amended system, but as "actual importers."
63. Ecuador also argued that the amended system went further to tilt this system toward EC and ACP service suppliers. The pass-through effect of the "actual importer" criterion combined in the new system with a unified licence system to mean that those who had traditionally imported EC and ACP bananas would have an even higher proportion of total licences, which they, like other importers, would use to import Latin American bananas first. Ecuador claimed that the previous importers of ACP bananas were largely EC and ACP service suppliers. They were granted rights to import Latin American bananas through the operator categories. Through the revised system, they not only "inherited" licences derived from the operator categories, but could freely use the licences they "earned" as importers of ACP bananas to try instead to import high-quota-rent Latin American bananas. All this was to the competitive detriment of Ecuadorian services suppliers to whom the European Communities owed GATS-consistent treatment.
64. The European Communities submitted that the notion of "actual imports" in the definition of traditional operators (Article 5 of Regulation 2362) ensured that the true and real importers during the representative period kept their traditional rights without losing the attached quota rent. Since the operators' categories had been eliminated there was no effect on the conditions of competition which were contrary to Article XVII.2 of GATS of the kind that the original panel had found as a matter of fact ¹¹² in the previous regime. The less favourable conditions of competition that were found in the "opportunity to benefit from tariff quota rents equivalent to that which accrues to an initial licence holder, given that licence transferees are usually Category A operators who are most often service suppliers of foreign origin and since licence sellers are usually Category B operators who are most often service suppliers of EC (or ACP) origin" ¹¹³ were no longer existent. In particular, it was no longer possible to assert that the new regime "is intended to 'cross-subsidize' the latter category of operators with tariff quota rents in order to offset the higher costs of production, to strengthen their competitive position and to encourage them to continue marketing bananas of EC and traditional ACP origin". ¹¹⁴ The abolition of operator categories therefore put the new EC regime into compliance with Article XVII of GATS. In its original findings in paragraph 244, based on a de facto discrimination analysis , ¹¹⁵ the AB ruled that "the allocation to Category B operators of 30 per cent of the licences for importing third-country and non-traditional ACP banana at in-quota tariff rates is inconsistent with the requirements of Article II of the GATS". The abolition of operator categories therefore put the new EC regime into compliance also with Article II of GATS.
65. Since, as mentioned above, the activity function rules had also been abolished, there was no longer any effect on the conditions of competition contrary to Article XVII.2 of GATS of the kind that the original panel had found as a matter of fact ¹¹⁶ in the previous regime. The less favourable conditions of competition that were found in the fact that "� service suppliers of EC as well as third-country origin do have comparable opportunities to file claims as to primary and secondary importation activities performed with the EC authorities, whereas service suppliers of complainants' origin do not enjoy equal competitive opportunities to make claims for the performance of ripening activities as service suppliers of EC origin" ¹¹⁷ was no longer present. Moreover, it could no longer be affirmed that "allowing third-country and non-traditional ACP imports at in-quota tariff rates to ripeners regardless of whether they have previously imported bananas is intended to strengthen their bargaining position in the supply chain towards primary importers". ¹¹⁸ The abolition of activity function rules therefore put the new EC regime into compliance with Article XVII of GATS.
66. A new set of rules, the European Communities continued, was now also in operation with respect to "exceptional circumstances affecting production or importation" which, in turn, "affect supply to the Community market" (Article 18.8 of Regulation 1637). The original panel had noted that "� our findings are limited to the present factual situation where hurricane licences are issued to operators who exclusively include or represent EC (or ACP) producers". The European Communities submitted that this was no longer the case under the new rules, given the abolition of operator categories. Moreover, Article 18.8, second sentence, of Regulation 1637 explicitly indicated that any specific measure taken in order to counter the exceptional circumstances in Article 18.8, "must not discriminate between supply origin". This new provision therefore put the European Communities into compliance with Article XVII of GATS. For the same reasons, it also complied with Article II of GATS.

(iv) Issues concerning customs clearance

67. Ecuador noted that the EC's amended system no longer had operator categories and activity functions, but in the opinion of Ecuador their effect on distribution of licences was still present in the new system. Under Regulation 2362, licences were allocated to only two categories of operators: i.e. to "traditional operators", who would normally obtain 92 per cent of the in-quota import licences, and to "newcomers", who would obtain 8 per cent. The new Regulation, however, adopted a criterion for licence eligibility for traditional operators that, according to Ecuador, largely replicated the effect of the old operator categories and activity functions, resulting in service suppliers of EC and ACP origin being allocated nearly the same volume of licences under the new regime as under the old.
68. Referring to Article 4 of Regulation 2362, Ecuador noted that import licences were allocated to each "traditional operator" based on its "reference quantity," which was determined by "the quantities of bananas actually imported during the reference period." ¹¹⁹ For 1999, the reference period was 1994-1996, the same as for 1998. ¹²⁰ Under Article 5, the "actual importer" was the operator in whose name customs duties were paid. ¹²¹ In other words, an operator which was credited under the amended system with being the "actual importer" had, during the reference period, either itself cleared a shipment through customs (and therefore paid any customs duties due) or was named on the customs documentation as the owner on whose behalf the customs duties were paid by someone else, and as a result, would be allocated import licences. Ecuador considered that codifying a pattern of treatment that was developed based on discriminatory criteria was itself discriminatory. The European Communities had thus produced the same result by relying on the technicality of who paid the customs duties.
69. Ecuador argued that by the very nature of the previous system's licence allocations, a substantial proportion of the imports of in-quota third-country and non-traditional ACP bananas were physically imported by Ecuadorian and other third-country service suppliers, but were customs cleared into the European Communities by or on behalf of a holder of a Category B, ripener, or hurricane licence. Under the amended system, those former holders of Category B, ripener, and hurricane licences consequently were in a position to prove payment of duties for those imports and be deemed to be the "actual importers" entitled to import licences, even though they were not, in the opinion of Ecuador, the true importers in a commercial sense or would not have been but for the artificial distortions created by the prior system.
70. Thus, Ecuador argued, in order to import their bananas into the European Communities, Ecuadorian importers, had to enter into unfavourable contractual arrangements with the holders of Category B, ripener, or hurricane licences. In practice, four different types of arrangements were used:

1. Licence transfers, in which the service provider who purchased the licence became the officially recognized transferee pursuant to Article 9 of Commission Regulation (EEC) No 3719/88. Licence transfers were rare.
2. Licence "leases" in which the Ecuadorian service supplier imported bananas and fulfilled customs formalities, but used a licence in the name of the original licence holder. These arrangements were also relatively uncommon.
3. Buy-back arrangements. These were paper transactions in which third-country bananas were imported by an Ecuadorian service supplier but another service supplier was credited with entry of the goods. ¹²²
4. T1-sales, i.e. sales in the European Communities before customs clearance. ¹²³
71. Ecuador argued that the Ecuadorian service supplier was the real importer in a commercial sense in all four cases, but only in the first two cases did the new EC regulations give the Ecuadorian service supplier recognition as the "actual importer" and it was only in those two cases that the true importer would be able to prove payment of customs duties. In the two other cases, the holder of the Category B, ripener, or hurricane licence (under the old system) was considered as the "actual importer" under the new system.
72. Buy-back and particularly T1 sales covered a very large volume of bananas landed in the European Communities by Ecuadorian suppliers. Buy-back arrangements, Ecuador argued, were designed to keep reference quantities and licence entitlements in the hands of ripeners and other beneficiaries of the former allocation scheme. T1 sales were by definition what a primary importer was intended to do under the previous regime, but reflected also the unfavourable conditions of competition for Ecuadorian service providers under the old licence allocation rules.
73. Referring to the contractual arrangements in (a) and (b) of paragraph 4.70 above (licence transfer and licence lease) which included the payment of duties by the licence transferee or the licences leaser, the European Communities said that under the new EC regime the licence transferee or leaser was covered by the definition of traditional importer in Regulation 2362 and was also the legal holder of the bananas. In the contractual arrangement described under (c) in paragraph 4.70 (buy-back), there were two separate operations of selling and purchasing bananas. The first took place before the customs clearance (an export activity), the second after the customs clearance, a wholesale trade activity disconnected from any import activity which could include bananas of any origin already in free circulation in the European Communities and thus indistinguishable.
74. The European Communities submitted that there was no evidence that: (i) these contracts existed; (ii) that they existed in a relevant number so that they could be of any importance in these proceedings; (iii) that a legally relevant link was established between the two separate contracts of selling and purchasing. The simple affirmation ex post by a party to that effect could not be a reliable source of evidence in these matters and certainly did not reach the minimum standard of evidence under the principle on the burden of proof elaborated by the AB in the "Blouses and Shirt" ¹²⁴ report. Referring to (d) of paragraph 4.70 above, the European Communities submitted that the contractual arrangement described therein (T1-sales) fit perfectly into the definition of an exporter. Ecuador itself admitted that there was no activity of importation involved. If the existence of a so-called T1-sales were able to qualify any exporter as a 'traditional importer' in the sense of Regulation 2362, this would be tantamount to the elimination of the definition all together. Given that the market access to the wholesale trade services in the European Communities was not limited but that the present level of the tariff represented an implicit limit on the number of bananas that could be imported into the European Communities, the possible number of bananas that could be exported (and of operators willing to export them) would always outnumber the bananas that were really imported (and the operators established in the European Communities). The activity of exporting bananas had, therefore in the opinion of the European Communities, no relevance when determining the "traditional" rights to import under Regulation 2362. No violation of the GATS could therefore be retained against the new EC licensing system.
75. Ecuador argued that since Ecuadorian service providers did not get a sufficient number of licences, they were effectively forced to make contractual arrangements with licence holders to stay in business. Only the European Commission, which managed the licensing system, had access to records documenting the volume of bananas that, for a given year, was physically imported into the European Communities by an Ecuadorian service supplier but customs cleared by another service supplier with a Category B, ripener or hurricane licence. In Ecuador's opinion, however, it followed from the nature of the system that holders of Category B, ripener or hurricane licences were the likely participants in arrangements with third-country importers, for two reasons.
76. First, they held the greatest volume of potentially available licences. ¹²⁵ Secondly, Ecuador argued, most EC or ACP service suppliers with Category B, ripener or hurricane licences were not themselves equipped to import Latin American bananas and thus use their licences for their own imports. Importing bananas into the European Communities from Latin America required a sophisticated organization in both producing countries and the European Communities and an integrated transport chain involving specialized refrigerated cargo ships. Most holders of Category B, ripener and hurricane licences therefore chose an easier way to realize the economic value of licences to import Latin American bananas: in return for significant payments, they used them in buyback or T1 arrangements with the true importers - Ecuadorian or other third-country service suppliers. As a result of the way the prior system worked, Ecuador said, the EC's choice of customs clearance as the basis for allotting licences under the amended system had the effect of allocating licences to those who had them under the system found to be inconsistent with the GATS.
77. Ecuador submitted, as an example, the 1998 and 1999 licence allocation experience of the Antwerp-based company nv Firma Léon Van Parys (LVP) owned by Noboa, and therefore for GATS purposes had been found to be an Ecuadorian service supplier. ¹²⁶ The following table shows, for 1994-1996, LVP's imports of bananas into the European Communities, and the import licences LVP was allocated: ¹²⁷

Year	LVP imports (tonnes) 128	Licences allocated (tonnes)
1994	97,620	32,631
1995	95,512	33,045
1996	90,403	36,285

During those years, Ecuador claimed, LVP was compelled for most of its imports to seek access to import licences that had been allocated to other operators. It did so through the various types of contractual arrangements discussed above.

78. The years 1994-1996 were the reference period both for 1998 under the prior system, and for 1999 under the amended system. Consequently, the change in LVP's licence allocation from 1998 to 1999 demonstrated the degree to which the amended system departed from or merely perpetuated the prior system. For these years LVP was allocated import licences for the following volumes:

1998: 39,828 tonnes

1999: 41,055 tonnes

Thus, the new licensing regime had improved LVP's licence allocation by only three per cent, while the licences that LVP paid for to cover most of its 1998 imports remained allocated to the original holders of Category B, ripener and hurricane licences, because they could show duty payment. Since its volume of physical imports to the European Communities had not dropped, LVP would be obliged to continue to seek access to other operators' licences for most of its imports in 1999. Indeed, in 1999 LVP was making the same contractual arrangements with the same licence holders as it did under the previous system.

79. Ecuador recalled that the original panel found that service suppliers of complainants' origin would "possibly" be able to claim reference quantities for customs clearance, and that it had been presented with insufficient information to determine whether companies carrying out customs clearance activities were predominantly in European Communities or third-country ownership or control. ¹²⁹ The panel had therefore concluded that "service suppliers of European Communities as well as third-country origin do have comparable opportunities to file claims as to primary and secondary importation activities performed with the EC authorities. �" ¹³⁰ In the opinion of Ecuador, these findings should not comfort the European Communities since the panel had been addressing customs clearance as one, relatively minor, aspect of banana marketing, not as practically the entire basis for future licence allocations. Also, the European Communities itself had acknowledged that using customs formalities as the criterion for allocating import licences would freeze licence allocations. ¹³¹ The European Communities had done in its amended system precisely what the Commission warned would occur: by basing licence allocations on licence usage (i.e. customs clearance) in the 1994-1996 reference period, it had "fossilized" licence allocations that discriminated against Ecuadorian and other third-country service suppliers.
80. The European Communities was of the view that the new EC measures could not be compared with the old regime. Therefore, any allegation by Ecuador that a "drag-on effect" of the old inconsistencies of the GATS existed under the new regime should be rejected by the Panel. Ecuador's assumption was erroneous in law and in fact. As a matter of law, the European Communities argued, it was not easily understandable how the effects of a discrimination de facto that the panel had found with respect to certain aspects of the old EC licensing regime could continue at present when these aspects had been abolished all together. The inconsistencies with the GATS found by the original panel were caused by transfers of quota rent from certain, mainly third-country, wholesale trade service suppliers to certain EC/ACP wholesale trade service suppliers as a de facto consequence of the previous EC licensing regime. The panel had considered those transfers as discriminatory under Article XVII of GATS (and in certain more limited circumstances under Article II of GATS).
81. In the EC's view, its licensing system in its new modalities ensured full neutrality with respect to the wholesale service suppliers in the banana trade. Therefore, any transaction of licences between operators was now only justified by trade-related or economic considerations over which the European Communities had no control. According to the original panel, the old EC regime was judged discriminatory on the basis of Article XVII.2 of GATS not because the system per se created modifications in the conditions of competition but because it forced a transfer of quota rent from the mainly third country Category A operators to the mainly EC/ACP Category B operators. This latter aspect prevented the modification of conditions of competition from being "cured" by the transferability of licences. However, there was no comparison between the new system and the old system. No forced transfer of quota rent could now be claimed, as it was in the previous panel procedure on the basis of the 1992 figures presented by the original complainants.
82. Moreover, data shown in the EC rebuttal submission demonstrated that the factual situation that was available to the original panel when it took its decisions, did not appropriately reflect the reality as it developed already under the old regime in the period 1994 to 1996. These figures showed beyond any possible doubt that the very assumption of de facto discrimination in favour of EC or ACP wholesale service suppliers to the detriment of third-country wholesale service suppliers was no longer justified. To affirm that discrimination "lives on" in the new EC regime was contrary to the facts as had been demonstrated by the European Communities.
83. The European Communities recalled the original panel's affirmation: "Therefore, service suppliers of EC as well as third-country origin do have comparable opportunities to file claims as to primary and secondary importation activities performed with the EC authorities". ¹³² The European Communities considered therefore that the accomplishment of primary or secondary importation activities was not discriminatory under the old EC regime and did not breach Articles XVII or II of GATS. A fortiori, the new EC regime that had eliminated all distinction between activity functions had to be in line with the EC GATS' obligations in this respect. The European Communities noted that the fact that ripeners were entitled to import bananas was not per se contrary to any provision in any covered agreement, including the GATS. The original panel did not find any formal or de facto discrimination in the access to the activity of ripener in the European Communities. Any operator, irrespective of its origin, was entitled to act as a ripener provided it met the conditions under the old EC Regulation 1442. What was considered contrary to the GATS was de facto discrimination that the original panel found, based mainly on 1992 data submitted by the complainants. ¹³³
84. The discrimination was therefore due to the fact, the European Communities continued, that ripeners sold licences and thus reaped quota rent from mainly primary importers. According to the data available to the panel at that time, the "vast majority" of ripeners were EC owned and the majority of primary importers were third-country owned. Ripeners who had sold licences under the old EC regime could no longer import under the new EC regime, since they had not paid the duties at the moment of the customs clearance of the bananas. Ripeners who had not sold licences under the old EC regime but had acted as importers, did not reap quota rent from primary importers. Thus, any traditional importer, including a ripener, if it met the conditions under the new EC licensing regime, was entitled to import within the strict (non-discriminatory) new limits set out in Regulation 2362. The European Communities recalled that, at the moment when the new EC licensing system entered into force, the majority of ripeners were of third-country origin and not of EC or ACP origin.
85. The European Communities further submitted that Ecuador confused export and import activity. It was erroneous to suggest that the volumes of exports of Ecuadorian bananas should be compared to the volumes that Ecuadorian wholesale service suppliers with a commercial presence in the European Communities imported into the Community. Traditionally, Ecuador was a producing and an exporting country. Wholesale service suppliers of Ecuadorian origin appeared on the import market in the European Communities quite late, coinciding with the entry into force of the old EC regime. The activity of the Ecuadorian companies involved in the importation of bananas into the European Communities had grown steadily and substantially during all the years of application of the old EC regime. It had increased even more as from the entry into force of the new EC regime.
86. The import licensing regime of the EC was concerned with the importation of bananas and not with the activity connected with the export of bananas from the places of production. Under the conditions stipulated in Regulation 2362, in order to be an importer it was necessary to be registered in one of the member States of the EC. Ecuador enjoyed a very favourable situation among the producing countries since it was the only producing country which had a major group established in the European Communities (Noboa group) performing import activities. By contrast and in comparison, Costa Rica, Colombia and Panama had no significant presence in the supplying of services connected to the importation of bananas into the European Communities (apart from a very small company for Costa Rica, Banatico, and a middle-sized company for Colombia, Banana Marketing). Moreover, another company from Ecuador, UBESA, traded mainly bananas for the Dole group (thus acting as a pure exporter) and Chiquita also exported from Ecuador (and imported into the European Communities). At the same time, a very limited producer and non-exporter like the United States had companies which had developed a major export activity from Latin American producing countries and an important activity of import into the European Communities.
87. Ecuador submitted that the European Communities should modify its import licensing system to allocate licences to the true importers who were the primary service providers and who took most of the commercial risk in marketing bananas in the European Communities. This could be done by basing reference quantities on submission by importers of evidence of their activities, in the form of: (i) invoices for purchase of bananas in the country of origin; (ii) shipping documents (bills of lading); and (iii) commercial invoices proving a first sale on EC territory. In the past, similar documentation was required by the European Communities to demonstrate reference quantities. ¹³⁴ Ecuador argued that such a licensing system would not give an advantage to service providers of non-EC origin, but would create, for both non-EC and EC service suppliers, the fair opportunities required by Articles II and XVII of GATS. Ecuador asked that the Panel accompany its findings with these specific recommendations to ensure that action by the European Communities to bring its import licensing system into conformity with the GATS would be forthcoming in the immediate future.
88. The European Communities contended that no WTO right could be derived from vague notions like "true importer in a commercial sense", "records documenting the volume of bananas that, for a given year, was physically imported in the European Communities", "true importer, i.e. the service supplier who in fact was in a position to and did undertake the critical steps in moving bananas from producing origins into the EC's market", etc. As the AB had indicated in its original report, ¹³⁵ it was the definition which could be found in the relevant EC regulations that determined the scope of the analysis on whether the European Communities had complied with its commitments and its obligations under the GATS. There was no definition of operator in the GATS, nor in the EC's Schedules of commitments; there was an EC commitment on wholesale trade services that was relevant insofar as it included activities covered in the definition of operator under the relevant EC regulations.
89. In Ecuador's view, the European Communities had not demonstrated why, in late 1998, it did not choose the more recent 1995-1997 period as the 1999 reference period since, in principle, any licensing system based on traditional trade flows should reflect the most recent trade flows. Ecuador stressed, however, that in its opinion, the reference period per se was not the source of the new system's inconsistency. It was, rather, the EC's decision to use the technicality of payment of customs duties to determine the "actual importer", instead of using commercial evidence to identify the true importer, i.e. the service supplier who was in a position to and did undertake the critical steps in moving bananas from producing countries into the EC market.
90. The reality of trade showed, the European Communities responded, that there was no factual or logical connection, let alone any legal necessity, between being a producer and exporter of bananas, on the one hand, and an importer in the European Communities, on the other hand.
91. The European Communities responded that the payment of customs duties was the only objective criterion that allowed the European Communities to verify which operator was entitled to the quality of traditional importer since it concerned the crucial moment for importation i.e. the customs clearance. The suggestions that Ecuador had put forward in paragraph 4.87 above (internal documents of private companies should provide evidence in order to be granted the traditional operator status) was the best recipe to engulf the European Communities and the operators into endless litigation in front of jurisdictions all over the world. In the opinion of the European Communities, no administrative power, including the EC internal offices, could decide on the validity of these documents without immediately raising a concern for other operators disposing of different concurring documents.

To continue with Newcomers

¹¹¹ For example: First EC Submission, heading preceding paragraph 55; First EC Submission at paragraph 56; First EC Submission at paragraph 56(b).

¹¹² See findings in paragraph 239 of AB report.

¹¹³ Paragraph 7.336, Secretariat remark.

¹¹⁴ Paragraph 7.339, Secretariat remark.

¹¹⁵ Which was again subject to the findings in paragraph 239. See also footnote 153 of the same AB report.

¹¹⁶ See paragraph 239 of the AB report.

¹¹⁷ Paragraph 7.362, Secretariat remark.

¹¹⁸ Paragraph 7.367, Secretariat remark.

¹¹⁹ Regulation 2362, Article 4.1.

¹²⁰ Idem. Article 4.2.

¹²¹ For details, see Factual Aspects above (Secretariat remark).

¹²² The Ecuadorian service supplier bought or produced bananas in Ecuador, shipped them to the European Communities, and unloaded the goods at an EC port. The Ecuadorian importer then "sold" the bananas to a holder of a Category B, ripener or hurricane licence, who presented the licence and paid customs duties and immediately "sold" the bananas back to the Ecuadorian service supplier. The price of the second "sale" was the price of the first "sale" plus the customs duties and a payment (the quota rent) for use of the import licence. The Ecuadorian service supplier retained custody of the goods throughout, and resold or distributed them in the European Communities.

¹²³ In these transactions, an Ecuadorian service supplier bought or produced bananas in Ecuador, shipped them to the European Communities, and unloaded the goods at an EC port. In order to enter the bananas, the Ecuadorian service supplier sold them to another operator who was the holder of a Category B, ripener or hurricane licence. The licence holder fulfilled customs formalities and resold or distributed the bananas in the European Communities. As in the buy-back arrangement, the importer in fact paid the duties, because the sale price to the competing service supplier was discounted by both the amount of the duty and the quota rent.

¹²⁴ WT/DS33/AB/R, page 14.

¹²⁵ (a) Category A "primary importer" licences accounted for 37.905 per cent (57 per cent of 66.5 per cent of the total import licences for in-quota third-country and non-traditional ACP bananas; (b) Category C or newcomer licences accounted for only 3.5 per cent of the total volume of licences for in-quota third-country and non-traditional ACP imports. Newcomer licences were normally for small volumes; (c) Category A "secondary importer or customs clearer" licences gradually "migrated" to holders of other types of Category A licences. That is, the prior system encouraged holders of Category A "primary importer" or "ripener" licences to ensure that bananas imported under those licences were customs cleared in their own names, both to be registered as the official licence user to ensure against losing reference quantities and to gain access to future "secondary importer" licences reference quantities; (d) Category B and ripener licences accounted for 48.62 per cent (30 per cent and 28 per cent of 66.5 per cent, or 18.62 per cent) of the available licences for in-quota third-country and non-traditional ACP imports. Hurricane licences and the secondary importer licences that came into the hands of ripeners increased this volume.

¹²⁶ See panel report at paragraphs 7.330�7.331; AB report at paragraphs 225 and 239.

¹²⁷ For reasons of confidentiality the figures have been changed but the proportions have been maintained. The actual data were available to the European Commission. While there could be minor differences between these figures and data retained by the Commission, any such minor differences would not affect the validity of the example.

¹²⁸ The figures used were based upon the volumes of bananas that were physically imported by LVP and customs cleared in the European Communities by LVP or another company. The figures exclude imports that were re-exported to non-EC countries. For clarity, also excluded were volumes subject to dispute between LVP and the European Commission concerning whether they were customs cleared in the European Communities or re-exported; their exclusion here was without prejudice to LVP's position in the dispute.

¹²⁹ Panel report at paragraph 7.362.

¹³⁰ Idem.

¹³¹ European Commission, "Working Document on Determination of Reference Quantities from 1995 Onwards", 6 October 1993, at paragraph 5, attached as Exhibit 15 to Ecuador's first submission to the panel of 9 July 1996.

¹³² Paragraph 7.362 of the panel report.

¹³³ Paragraph 7.363 of Panel report.

¹³⁴ See Article 7 of Regulation 1442; panel report at paragraph 7.192.

¹³⁵ Paragraph 225.