哥伦比亚诉欧盟香蕉案

WORLD TRADEORGANIZATIONWT/DS361/1G/L/81826 March 2007(07-1254)Original: EnglishEUROPEAN COMMUNITIES – REGIME FOR THE IMPORTATION OF BANANASRequest for Consultations by ColombiaThe following communication, dated 21 March 2007, from the delegation of Colombia to the delegation of the European Communities and to the Chairman of the Dispute Settlement Body, is circulated in accordance with Article 4.4 of the DSU._______________My authorities have instructed me to request the European Communities ("EC") to consult with Colombia pursuant to Article 4 of the Understanding on Rules and Procedures Governing the Settlement of Disputes ("DSU"), Article XXIII:1 of the General Agreement on Tariffs and Trade 1994 ("GATT 1994"), and Paragraph 3 of the Understanding in Respect of Waivers of Obligations under the General Agreement on Tariffs and Trade 1994 on the regime for the importation of bananas that the EC has applied since 1 January 2006.Background to the consultations requested by ColombiaIn the dispute EC – Bananas III, certain aspects of the EC's previous banana import regime were found to be inconsistent with WTO law.1The EC reached Understandings with Ecuador 2and the United States3identifying means for the resolution of that dispute. According to these Understandings, the EC was to "introduce a Tariff Only regime for imports of bananas no later than 1 January 2006",4to rebind its import tariff on bananas, and to initiate "GATT Article XXVIII negotiations ... in good time t o that effect …"5Both Understandings provided for the application of three tariff-rate quotas until 31 December 2005, including a zero duty tariff-rate quota for bananas originating in ACP States("ACP bananas") up to an annual quantity of 750,000 tonnes.6To enable the EC to accord this tariff-rate quota, the EC was granted a waiver from Articles XIII:1 and XIII:2 of the GATT 1994 until 31 December 2005 (the "Article XIII Doha Waiver") .7Furthermore, to enable the EC to provide preferential tariff treatment to products of ACP origin, as required by Article 36.3, Annex V and its Protocols of the ACP-EC Partnership Agreement, the EC was granted a waiver from Article I of the GATT 1994 until 31 December 2007 (the "Article I Doha Waiver") .8In respect of bananas, the application of the Article I Doha Waiver beyond 31 December 2005 was made subject to a number of terms and conditions. The waiver specified that the EC shall rebind its import tariff on bananas at a level that "would result in at least maintaining total market access for MFN banana suppliers".9It further provided for "multilateral control on the implementation of this commitment"10through a two-stage arbitration procedure and specified that both the "Article XXVIII negotiations and the arbitration procedures shall be concluded before the entry into force of the new EC tariff only regime on 1 January 2006."11In a communication dated 31 January 2005, the EC stated that it envisaged rebinding its import tariff for bana nas at the level of 230€/tonne.12Following the receipt of this communication, Colombia and other MFN banana suppliers (the "Interested Parties") initiated the arbitration procedure contemplated in the Article I Doha Waiver. The Arbitrator determined that the EC's "envisaged rebinding [of 230€/tonne] would not result in at least maintaining total market access for MFN banana suppliers, taking into account all EC WTO market-access commitments relating to bananas".13The Article I Doha Waiver required the EC to "rectify the matter" if the Arbitrator were to find that the rebinding initially proposed would not result in at least maintaining total market access for MFN banana suppliers.14On 13 September 2005, the EC notified the Interested Parties that it intended to rectify the matter by setting its import tariff for bananas at the level of 187€/tonne an d establishing a zero duty tariff-rate quota of 775,000 tonnes per year for ACP bananas. Subsequently, the EC initiated the second stage of the arbitration procedure to determine whether its proposal would at least maintain total market access for MFN banana suppliers. Once again, the Arbitrator determined that the EC proposal failed that standard and that, consequently, the EC had "failed to rectify the matter, in accordance with the fifth tiret of the Annex to the Doha Waiver."15On 1 January 2006, the EC implemented a new regime for the importation of bananas under which the tariff levied on bananas of MFN origin ("MFN bananas") was set at 176€/tonne, and ACP bananas may be imported at zero duty up to an annual quantity of 775,000 tonnes (the "ACP TRQ") .Measure at issue and legal basis of Colombia's complaintThe measure at issue is the EC's the new import regime for bananas set out in (i) Council Regulation (EC) No 1964/2005 of 29 November 2005 on the tariff rates for bananas and (ii) Commission Regulation (EC) No 2014/2005 of 9 December 2005, as amended by Commission Regulation (EC) No 566/2006 of 6 April 2006, on licences under thearrangements for importing bananas into the Community in respect of bananas released into free circulation at the common customs tariff rate of duty, and (iii) all other legal instruments implementing, relating to, or amending any of the foregoing.Colombia considers that the new import regime for bananas is inconsistent with the GATT 1994 for the following reasons:1. The application of a t ariff of 176€/tonne to imports of MFN bananas is inconsistentwith Article II:1 of the GATT 1994 because it is in excess of the duties set forthunder heading 0803001916of the EC's Schedule of Concessions. That scheduleprovides for an in-quota duty of 75€/tonne within a tariff-rate quota of 2.2 milliontonnes. The levying of import tariffs in excess of 75€/tonne for all imports ofMFN bananas is inconsistent with this concession. For this reason, beforeapplying to MFN bananas a tariff higher than 75€/tonne, the EC should haverenegotiated its tariff concession on bananas in accordance with the procedures setout in Article XXVIII of the GATT 1994, as agreed to in its Understandings withEcuador and the United States, and as contemplated under the Article I DohaWaiver.2. Only ACP bananas benefit from the application of a zero tariff. The denial of thisadvantage to MFN bananas is inconsistent with Article I:1 of the GATT 1994.This inconsistency cannot be justified under the Article I Doha Waiver becausethat waiver ceased to apply to bananas as of 1 January 2006, given the Arbitrator'sdetermination that the EC had failed to rectify the matter. In any case, the ECcannot invoke this waiver to justify the inconsistency with Article I:1 of theGATT 1994 because it does not observe the terms and conditions of the waiver. Inparticular, it has failed to rebind its import tariff on bananas and at a level thatresults in at least maintaining total market access for MFN banana suppliers,taking into account all EC WTO market-access commitments.3. The application of the ACP TRQ entails discrimination between ACP bananas andMFN bananas inconsistent with Articles XIII:1, XIII:2, and XIII:5 of the GATT1994. This inconsistency cannot be justified under the Article XIII Doha Waiverbecause that waiver expired on 31 December 2005 and has not been extended.17Procedural AspectsThe Understanding between the EC and Ecuador, the EC and the United States, and the Article I Doha Waiver envisaged a final resolution of a long-standing dispute by 1 January 2006. Regrettably, the EC has once again taken measures inconsistent with WTO law that seriously harm an important sector of Colombia's economy. As a developing country heavily dependent on its exports of bananas, Colombia can ill-afford yet another lengthy dispute settlement proceeding conducted according to standard time frames. Accordingly, Colombia requests the EC to hold consultations within the time frame set out in Article 4.8 of the DSUfor cases of urgency, that is within 10 days after the date of receipt of this request. Should these consultations not lead to a satisfactory settlement, Colombia will consider referring the matter to the Director General pursuant to Article 3.12 of the DSU and the Decision of 5 April 1966 (BISD 14S/18) in the hope that his good offices will facilitate a rapid solution to this dispute and, if necessary, request the establishment of a panel in accordance with applicable accelerated procedures.I look forward to receiving your reply to this request for consultations. I suggest that the precise date of the consultations be discussed between our missions.__________WORLD TRADEORGANIZATIONWT/DS361/2WT/DS364/222 December 2009(09-6682)EC1– REGIME FOR THE IMPORTATION OF BANANAS (DS361) INITIATEDBY COLOMBIAEC1– REGIME FOR THE IMPORTATION OF BANANAS (DS364) INITIATEDBY PANAMAReport by the Director-General on the Use of His Good Officesin the Above-Mentioned Disputes(pursuant to Article 3.12 of the DSU)The following communication, dated 21 December 2009, from the Director-General of the WTO to the Chairman of the Dispute Settlement Body, is circulated to Members for their information._______________1. This is my report to the Dispute Settlement Body (DSB) concerning the use of the good offices of the WTO Director-General in the above-mentioned disputes pursuant to Article 3.12 of the DSU and the Procedures under Article XXIII – Decision of 5 April 1966. As the parties have recently agreed on a way to settle these disputes, the use of my good offices as WTO Director-General in these disputes is no longer needed and resort to such good offices for this purpose is therefore deemed to have ended.Introduction2. In the dispute EC-Bananas III2, certain aspects of the European Communities banana import regime in force at the time the dispute was initiated in 1996 were found to be inconsistent with WTO law. A number of proposals by the EC to modify its regime to bring it into compliance with the recommendations and rulings of the Dispute Settlement Body in this dispute were rejected by complaining countries. In April 2001, an agreement was reached between the EC, Ecuador and the United States that entailed, inter alia, the establishment by no later than 1 January 2006 by the EC of a tariff-only import regime for bananas as well as an interim arrangement consisting of: (1) a tariff rate quota scheme for MFN suppliers providing for an in quota tariff rate of 75 euros per tonne up to 2.2 million tons and an out of quota tariff rate of 680 euros per tonne thereafter; and (2) duty-free preferential tariff treatment to bananas for up to 750,000 tonnes originating in ACP countries. This interim arrangement would be made legally permissible under WTO rules through the adoption of several waivers agreed at the Doha Ministerial, as explained further below.3. A waiver from the application of Article I of the GATT was granted in Doha in November 2001 (the "Doha waiver") for the Cotonou Agreement trade preference, with a duration commensurate with these trade preferences, i.e., until 31 December 2007. This waiver also covered the trade preference for bananas. The waiver specified that the European Communities would rebind its WTO-bound import tariff of 680 euros per tonne on bananas at a level that "would result in at least maintaining total market access for MFN banana suppliers" comparable to that provided for under the interim arrangement. The waiver further provided for multilateral control over the implementation of this commitment through a two-stage arbitration procedure and specified that both the Article XXVIII negotiations and the arbitration procedures would have to be concluded before the entry into force of the new EC tariff-only regime. At the same time, a second waiver to cover the temporary duty-free allocation of 750,000 tonnes to ACP countries was granted until 31 December 2005.4. During the course of 2005, the European Communities and interested MFN countries attempted but failed to reach agreement on the level of a new EC tariff rate that would maintain the MFN countries' "total market access" as set forth in the Doha waiver. Two arbitrations were held in accordance with the provisions of this waiver. These arbitrations concluded that the tariff levels proposed by the European Communities would not result in at least maintaining total market access for MFN banana suppliers comparable to that under the interim arrangement, taking into account all EC WTO market access commitments relating to bananas. The EC was therefore required to rectify the matter.5. In response to the second arbitration award and without the prior agreement of MFN suppliers, the EC implemented a new banana import regime on 1 January 2006 (through Council Regulation 1964/2005) . This was the EC banana regime in force when there was a subsequent request by several of the MFN suppliers for the DG to provide his good offices in this dispute as explained further below. Under this new EC regime, the MFN tariff applied to all bananas regardless of their origin was € 176 per ton and there were no quantitative restrictions. In addition, the European Communities offered until the end of 2007 a preference to bananas imported from countries that had signed the "Cotonou Agreement"3. This preference took the form of an annual quota of 775,000 tonnes of bananas free of duty from Cotonou participating countries (the "Cotonou Preference") . All bananas imported from Cotonou countries beyond this amount were also subject to the tariff of € 176 per ton.6. In the meantime, at the Hong Kong Ministerial in December 2005, several Latin American countries had expressed serious concern over what they considered to be the EU's non-implementation of the earlier WTO's legal rulings and recommendations from the late 1990s in the banana dispute, particularly in the aftermath of the two arbitrations carried out earlier in 2005 under the Doha Waiver. To address these concerns, I nominated Mr Jonas Store, the Norwegian Foreign Minister, to act as a "Facilitator" to assist the parties in trying to find a solution and asked him to report to the General Council in due course. Minister Store conducted regular meetings for the next 18 months, assisting the parties and reporting periodically to the General Council on his efforts. During this process, the participants collected and shared data on imports/exports of bananas in the EU with a view to advancing the search for what should be the appropriate new EC tariff level within the framework of the agreements that had been reached in 2001.7. Concurrently, implementation of the EC's new import regime for bananas on 1 January 2006 also triggered a number of legal complaints in the WTO by various MFN suppliers in late 2006, including legal proceedings initiated by Ecuador and the United States under the compliance panel procedures of Article 21.5 (c) of the DSU. The reports of the two compliance panels and the Appellate Body in these two proceedings, which were adopted by the DSB in late 20084, confirmed that the new EC regime on banana introduced on 1 January 2006 was still inconsistent with the EU's WTO obligations.Use of the Good Offices of the WTO Director-General8. On 21 March and 22 June 2007, Colombia and Panama, respectively, requested new consultations under the DSU with the EC regarding its new banana regime of 1 January 2006 as set out in EC Council regulation (EC) No. 1964/20055. When these consultations failed to lead to a satisfactory settlement, pursuant to Article 3.12 of the DSU and the Procedures under Article XXIII – Decision of 5 April 1966, Colombia and Panama, referred the matter to me on 2 November and 14 December 2007, respectively, with the request that, acting in my ex-officio capacity, I use my good offices with a view to facilitating a solution to their dispute with the EC.9. Initially, Colombia and the EC had requested that their good offices process not include any third parties. They foresaw, however, that if they were to make progress, subsequent phases of the process could then involve other principal suppliers and parties in the dispute. In the meantime, however, Panama requested me to carry out a separate good offices procedure for its dispute with the EC. Colombia, Panama, and the EC then agreed that the two good offices procedures should run in parallel, although it was envisaged that at a later stage the two processes could be merged if there were sufficient progress toward a solution in both processes.10. As this was the first time that the provisions of Article 3.12 of the DSU and the Procedures under Article XXIII – Decision of 5 April 1966 were used since the inception of the WTO, I initially sought from the parties their expectations as to what should result from the good offices process. In this regard and in accordance with paragraph 2 of the 1966 procedures, parties were requested to furnish me with all relevant information relating to the matter, including written explanations. I also requested the parties' views on which other Members or inter-governmental organisations they believed appropriate for me to consult with a view to promoting a mutually acceptable solution.11. The parties stated their preference for a negotiated settlement as opposed to a purely legal process. The parties also agreed in both good offices processes to adhere to confidentiality with respect to the content of the proceedings. It was in this spirit that the two good offices processes were conducted.12. I held four formal meetings in the Colombia-EC good offices process. There were also several informal bilateral/plurilateral meetings and contacts between the parties and the parties and myself. I also held two formal meetings in the Panama-EC process, with several informal bilateral/plurilateral contacts and meetings between the parties and the parties and myself.6During these two processes, with a view to assisting the parties in recording in text their apparent points of agreement and possible agreement, I put forward a series of written options as to what might be considered by the parties as an acceptable EC import tariff for bananas and under what conditions.13. In parallel to these two formal good offices processes, and in the interest of transparency - which could contribute to an agreement among the parties that would be acceptable to all WTO Members – I also held a number of formal7and informal meetings with other WTO Members, including other MFN suppliers, ACP banana producers, other banana producers and importers.814. The good offices processes intensified in the first part of July 2008. In attempting to reflect the evolving positions of the parties and in an effort to lead them towards a balanced result, I then put forward in writing the elements of a draft comprehensive banana agreement on 12 July 2009. I informed the parties that these elements were my best effort at helping them find a solution to their disputes. I reiterated that I remained available should the parties need my assistance.15. Consultations then continued directly between the parties during the latter half of July 2008 and through 2009. These direct consultations finally resulted in two agreements between the EC and its MFN bananas suppliers – one with all Latin MFN suppliers and the other with the United States. These two agreements were initialled by the parties on 15 December 2009. The text of the agreement between the EC and its Latin MFN suppliers - the "Geneva Agreement on Trade in Bananas" was then circulated to the General Council for its information ( WT/L/784 ) . At its meeting of 17-18 December 2009, the General Council took note of this agreement.__________WORLD TRADEORGANIZATIONWT/DS361/3G/L/818/Add.112 November 2012(12-6214)Original: English[WT/DS27, WT/DS361, WT/DS364, WT/DS16,WT/DS105, WT/DS158, WT/L/616 and WT/L/625 ]8 November 2012European Communities – Regime for the Importation, Sale and Distribution of Bananas (Guatemala; Honduras; Mexico; United States) (DS16) European Communities – Regime for the Importation, Sale and Distribution of Bananas (Ecuador; Guatemala; Honduras; Mexico; United States) (DS27) European Communities – Regime for the Importation, Sale and Distribution ofBananas (Panama) (DS105)European Communities – Regime for the Importation, Sale and Distribution of Bananas (Guatemala; Honduras; Mexico, Panama; United States) (DS158) European Communities – Regime for the Importation of Bananas (Colombia) (DS361) European Communities – Regime for the Importation of Bananas (Panama) (DS364) European Communities – The ACP-EC Partnership Agreement – Recourse to Arbitration pursuant to the Decision of 14 November 2001 (Brazil; Colombia; Costa Rica; Ecuador; Guatemala; Honduras; Nicaragua; Panama and Venezuela)( WT/L/616 )European Communities – The ACP-EC Partnership Agreement – Second Recourse to Arbitration pursuant to the Decision of 14 November 2001 (Brazil; Colombia; Costa Rica; Ecuador; Guatemala; Honduras; Nicaragua and Panama) ( WT/L/625 )1Notification of a Mutually Agreed SolutionThe following communication, dated 8 November 2012, from the delegation of the European Union and the delegations of Brazil, Colombia, Costa Rica, Ecuador, Guatemala, Honduras, Mexico, Nicaragua, Panama and Venezuela to the Chairman of the Dispute Settlement Body, is circulated pursuant to Article 3.6 of the DSU._______________The European Union and the Governments of Brazil, Colombia, Costa Rica, Ecuador, Guatemala, Honduras, Mexico, Nicaragua, Panama and Venezuela (hereinafter "the Latin American MFN banana suppliers") notify the DSB that they have reached a mutually agreed solution with respect to the disputes WT/DS16; WT/DS27; WT/DS105; WT/DS158; WT/DS361; WT/DS364; WT/L/616 and WT/L/625 on the terms set out in the attached Geneva Agreement on Trade in Bananas. Having regard to that Agreement, and to the Certification of the EU tariff line on bananas on 27 October 2012 (document reference WT/Let/868 ), the aforementioned disputes are settled as of 27 October 2012.This letter is without prejudice to the WTO rights and obligations of the EU and the Latin American MFN banana suppliers2.For the European UnionFor the Government of BrazilFor the Government of ColombiaFor the Government of Costa RicaFor the Government of EcuadorFor the Government of GuatemalaFor the Government of HondurasFor the Government of MexicoFor the Government of NicaraguaFor the Government of PanamaFor the Government of Venezuela__________。