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Banana III : European Communities - Regime for the Importation, Sale and Distribution of Bananas
Introduction
On 9 September 1997, the WTO Appellate Body (the "AB") issued its report
on the case European Communities- Regime for the Importation, Sale and
Distribution of Bananas2. This is
only the last episode of a long battle and the practical result is still to
come3. The EC insisted on separate panel
reports for each complaining party. The panel accepted, but made identical
sections for factual aspects and party's arguments. Only the findings were
different to the extent that the respective submissions differed4. The four panel reports appealed were circulated
on 22 May 1997. In those reports, the Panel concluded that the EC import regime
for bananas was inconsistent with obligations under Articles I:1, III: 4, and
XIII GATT, Articles II and XVII GATS and some provisions of the Licensing
Agreement. Both the complaining parties and the EC presented their claims on
appeal. Numerous other Members filed their submissions as third participants,
belonging to the ACP group5 or to the
Members of the Framework Agreement6, as well
as Japan.
The number of participants and the length of the procedure and of the
reports7 are an indication of the importance
of the case. Several issues of both General and Trade International Law were
examined and given innovative solutions. The AB is building on the WTO
provisions to play its institutional role. The rulings of this initial period
furnish the fundamental orientation and principles for the future functioning
of the dispute settlement of the Organisation. The analysis is therefore
separated in two parts, one relating to the issues of importance for
International Law and the second one dealing with International Trade rules.
2
WT/DS27/AB/R. The three members of the AB serving on this case are Mr. J.
Bacchus (US) as president, Mr. C. Beeby (New Zealand) and Professor Said
El-Nagar (Egypt). It is interesting to note that the president is a national of
the US, a Member that has a great interest in the case. This will not be
possible at the panel procedure, according to Article 8 DSU, unless the parties
agreed.
3 The
EC has been granted a period to implement the ruling of the DSB ending on 1
January 1999.
4
Therefore, the claims of Guatemala and Honduras were treated together, since
those parties filed a joint first submission. This report does not discuss GATS
issues, since their initial submission did not allege infringements of
GATS.
5 ACP
States are those African Caribbean and Pacific States which are parties to the
Fourth ACP-EC Convention of Lomé (Lomé IV Convention) signed in
Lomé, 15 December 1989, as revised by the Agreement signed in Mauritius
on 4 November 1995.
6 This
Agreement was signed as a result of the second GATT panel initiated by
Colombia, Costa Rica, Guatemala, Nicaragua and Venezuela against the EC banana
regime. Guatemala was not a member of the Agreement and therefore appears as a
complainant in the present case.
7
Normally, the AB procedure takes one month. In exceptionally complicated cases,
this period may be extended to three months. This period was respected, since
the notice of appeal was filed by the EC on 11 June 1997. Each report counts
around 400 pages, while the AB report is more than 100.
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This file was last modified:
Tuesday, October 14, 2003 12:45PM