Decisions of the Appellate Body of the World Trade Organization Banana III : European Communities - Regime for the Importation, Sale and Distribution of Bananas HEADNOTE Complete Text of this Survey (RTF Format) Full text of the WTO Appellate Body Report (PDF Format) * Mercedes García1 WTO Appellate Body Report: Banana III : European Communities - Regime for the Importation, Sale and Distribution of Bananas, AB-1997-3, WT/DS27/AB/R, Adopted by Dispute Settelemt Body, November 17 1997, Ecuador, European Communities,Guatemala, Honduras, Mexico and the United States, Appellants; Ecuador, European Communities,Guatemala, Honduras, Mexico and the United States, Appellees; Belize, Cameroon, Colombia, Costa Rica, Côte d'Ivoire, Dominica, Dominican Republic, Ghana, Grenada, Jamaica, Japan, Nicaragua, Saint Lucia, St. Vincent and the Grenadines, Senegal, Suriname and Venezuela, Third Participants; Division: Bacchus, Beeby and El-Naggar. HEADNOTE I. The present case raises several issues of interest for Public International Law more generally: a) locus standi of the United States: the general principle of International Law that requires a legal interest to be shown in order to be a participant in a claim is not to be applied to the WTO dispute settlement procedures. b) outside counsel advisers: contrary to previous practice of the dispute settlement mechanism of GATT 1947 and WTO, non-governmental advisers were allowed to participate in the oral hearing before the Appellate Body. c) all claims must be stated in the initial request for a panel: minimum standards are enough to fulfil the requirements of Article 6 DSU, namely, the identification of all provision concerned. The omission of a claim may not be cured at a subsequent stage of the procedure. d) retroactivity of GATS: GATS is applicable to continued situations even if their date of origin goes back to a date prior to the entry into force of the Agreement. e) burden of proof: the issues of fact are left to the panel. No reinterpretation is given to previous cases. II. Furthermore, the following points of International trade law are addressed by the AB: a) The relation between the Agreement on Agriculture and Article XIII of the GATT: Article 4.1 of the Agreement on Agriculture must be considered lex specialis with respect to Article XIII GATT. Neither of them precludes the existence of different import regimes for the same product. b) The scope of the Lomé waiver: The waiver for the Lomé Conventions only covers Article I GATT. The panel finding that the waiver exempted from the obligations laid by Article XIII is therefore reversed. c) Non-discrimination obligations under GATT: Articles I:1, III and 1.3 of the Licensing Agreement. d) legal issues under GATS: definition of services and scope of application. The EC licensing system is incompatible with non-discrimination obligations under GATS. In order to clarify the precedents of the case for those who would not be familiar with the previous litigation that the EC banana regime has provoked, an annex to this paper provides details about the banana market, the EC Regulation enacting a common banana market, the subsequent disputes under EC law and the first two panels under GATT 1947. * provided by worldtradelaw.net 1 Teaching assistant, Law Department, College of Europe, Bruges. The author wishes to thank Prof. Bourgeois and Prof. Dr. Govaere for their useful suggestions.
	© 1990-2004 European Journal of International Law All comments and suggestions should be sent to webmaster This site is part of the Academy of European Law online, a joint partnership of the Jean Monnet Center at NYU School of Law and the Academy of European Law at the European University Institute. This file was last modified: Tuesday, October 14, 2003 12:48PM