In EC. Commercial Vessels, the Panel examined a bilateral agreement between the European Communities and Korea, referred to as the "Agreed Minutes". The Panel noted the Agreed Minutes are not a "covered agreement" within the meaning of Articles 1 and 2 of the DSU. Citing the passage from the Appellate Body Report in EC – Poultry reproduced above, the Panel emphasized that: "[I]ts review of the text of the Agreed Minutes only serves the purpose of enabling it to decide a factual issue on which the parties disagree and that it is not interpreting the Agreed Minutes in order to determine the rights and obligations of the parties under that bilateral agreement."6

In EC. Asbestos, the Panel decided to seek the opinion of individual scientific experts, rather than establishing an expert review group. The European Communities objected, arguing among other things that if the measure in question should be considered as coming under the TBT Agreement, Article 14.2 of the TBT Agreement would mean that a technical expert group would have to be consulted for any scientific or technical question. The European Communities argued that, pursuant to Article 1.2 of the Understanding, Article 14.2 of the TBT Agreement would prevail over the provisions in Article 13 of the DSU. The Panel responded that:

In EC. Poultry, Brazil argued on appeal that the Panel had erred in restricting Brazil's "comprehensive claim in relation to a violation of the general principle of transparency underlying the Licensing Agreement" to an analysis of Article 3.5(a) of the Licensing Agreement. Brazil's argument was that "the administration of import licences in such a way that the exporter does not know what trade rules apply is a breach of the fundamental objective of the Licensing Agreement." The Appellate Body, however, upheld the Panel's approach and the Panel's finding that the European Communities measure was not inconsistent with Article 3.5(a) of the Agreement: "Brazil's notice of appeal contained no reference to a general issue of transparency in relation to the Licensing Agreement. However, Brazil argued in its appellant's submission that the Panel erred in restricting Brazil's 'comprehensive claim in relation to a violation of the general principle of transparency underlying the Licensing Agreement' to an analysis of Article 3.5(a) of the Licensing Agreement. The contention of Brazil is that 'the administration of import licenses in such a way that the exporter does not know what trade rules apply is a breach of the fundamental objective of the Licensing Agreement'. Brazil argued before the Panel that 'underlying the Licensing Agreement was the principle of transparency.' Brazil submitted, in particular, that the European Communities was obliged under either Article 3.5(a)(iii) or (iv) of the Licensing Agreement to provide complete and relevant information on the distribution of licences among supplying countries and statistics on volumes and values. According to Brazil, the European Communities failed to fulfil this obligation. The Panel found that Brazil had not demonstrated that the European Communities had violated either 10 Appellate Body Report, Argentina – Import Measures, fn 598. 11 Appellate Body Report, Argentina – Import Measures, fn 711. 12 Panel Report, EC – Poultry, para. 264. 13 Panel Report, EC – Poultry, para. 265.

In EC. Approval and Marketing of Biotech Products, the Panel decided to consult with individual scientific experts to obtain their advice on certain scientific and/or technical issues raised by the Parties' submissions and for which the Panel might benefit from expert advice.3 Current as of: June 2020 1 (footnote original) Appellate Body Report on Guatemala – Cement, paras. 65-66. 2 Panel Report, EC – Asbestos, paras. 5.18-5.19.

In EC. Fasteners (China), the Panel further considered the principle regarding non- consideration of injury caused by non-dumped imports, in relation to imports of producers/exporters not included in the sample used for the dumping determination and not separately granted individual examination. In the investigation at issue, the EU determined that all sampled producers were dumping and calculated a dumping margin for these non- sampled/unexamined producers on the basis of the dumping margins determined for the sampled producers. The two producers found not to be dumping were not included in the sample; because all producers in the sample were found to be dumping, the Panel considered that the EU authorities were entitled to rely on that evidence and treat all imports from non- sampled/unexamined producers as dumped for purposes of its injury determination; the Panel rejected China's claim under Articles 3.1 and 3.2.99 The Panel found: "[T]he conclusion of the investigating authority with respect to the sampled producers, that they were dumping, is not undermined by the fact that two producers not included in the sample were found not to be dumping upon being individually examined. The purpose of sampling foreign producers/exporters in an anti-dumping investigation is to allow an investigating authority to extrapolate from the sample to draw conclusions about dumping for all non-sampled/unexamined foreign producers/exporters on the basis of a detailed examination of fewer than all of them. Article 9.4 of the AD Agreement makes clear that, if the sample for the dumping determination is selected consistently with the AD Agreement, a matter China has not challenged in this dispute, then the investigating authority may treat the findings of dumping made with respect to that sample of companies as establishing the existence of dumping by all non-sampled/unexamined companies for purposes of the imposition of anti-dumping duties. In our view, a similar result should follow with respect to the treatment of imports as dumped for purposes of the injury determination. That is, if the sample for the dumping determination is selected consistently with the AD Agreement, a matter China has not challenged in this dispute, then the investigating authority may treat the findings of dumping made with respect to that sample of companies as evidence that imports from the non-sampled/unexamined companies are dumped. To do otherwise would limit the utility of Article 6.10 of the AD Agr...

In EC. Export Subsidies on Sugar, the EC argued that the terms of a footnote to the EC Schedule excluded certain exports from the scope of the EC reduction commitments. The Appellate Body disagreed, and found arguendo that the commitment in question was inconsistent with Articles 3.3 and 9.1 of the Agreement on Agriculture. The Appellate Body then examined and rejected a further EC argument that this claimed commitment limiting subsidization could prevail over the provisions of the Agreement on Agriculture: "[W]e find no provision under the Agreement on Agriculture that authorizes Members to depart, in their Schedules, from their obligations under that Agreement. Indeed … Article 8 requires that, in providing export subsidies, Members must comply with the provisions of both the Agreement on Agriculture and the export subsidy commitments specified in their Schedules. This is possible only if the commitments in the Schedules are in conformity with the provisions of the Agreement on Agriculture. Thus, we see no basis for the European Communities' assertion that it could depart from the obligations under the Agreement on Agriculture through the claimed commitment provided in Footnote 1. In any event, we note that Article 21 of the Agreement on Agriculture provides that: '[t]he provisions of [the] GATT 1994 and of other Multilateral Trade Agreements in Annex 1A to the WTO Agreement shall apply subject to the provisions of this Agreement.' In other words, Members explicitly recognized that there may be conflicts between the Agreement on Agriculture and the GATT 1994, and explicitly provided, through Article 21, that the Agreement on Agriculture would prevail to the extent of such conflicts. Similarly, the General interpretative note to Annex 1A to the WTO Agreement states that, '[i]n the event of conflict between a provision of the [GATT 1994] and a provision of another agreement in Annex 1A ..., the provision of the other agreement shall prevail to the extent of the conflict.' The Agreement on Agriculture is contained in Annex 1A to the WTO Agreement. As we noted above, Footnote 1, being part of the European Communities' Schedule, is an integral part of the GATT 1994 by virtue of Article 3.1 of the Agreement on Agriculture. Therefore, pursuant to Article 21 of the Agreement on Agriculture, the provisions of the Agreement on Agriculture prevail over Footnote 1. We, therefore, do not agree with the European Communities that 'there is no hierarchy between the export subs...

In EC. Chicken Cuts, the Appellate Body referred to Annex 1 in the context of examining the link between the Harmonized System and the WTO Agreements: 1 Panel Report, Canada – Dairy, para. 7.18. 2 Panel Report, Chile – Price Band System, para. 7.13. 3 Panel Report, US – Upland Cotton, para. 6.37. 4 Panel Report, US – Upland Cotton, para. 7.199. 5 Panel Report, US – Upland Cotton, para. 7.480. 6 Panel Report, US – Upland Cotton, para. 7.970. "This close link to the Harmonized System is particularly true for agricultural products.7 Annex 1 to the Agreement on Agriculture, which forms an integral part of that Agreement , defines the product coverage of that Agreement by reference to headings of the Harmonized System, both at the level of whole chapters and at the four-digit level in respect of specific products. Moreover, it is undisputed that the Uruguay Round tariff negotiations for agricultural products were held on the basis of the Harmonized System and that all WTO Members have followed the Harmonized System in their Schedules to the GATT 1994 with respect to agricultural products."8 Current as of: June 2020 7 (footnote original) In response to questioning at the oral hearing, the participants noted that the so- called Modalities Paper provides that market access commitments relating to agricultural products had to be based on the Harmonized System. (Articles 3(3)(i) and 3(3)(ii) of the Modalities for the Establishment of Specific Binding Commitments Under the Reform Programme, MTN.GNG/MA/W/24, 20 December 1993)

In EC. Trademarks and Geographical Indications (US), the Panel found that the European Communities was not obliged to ensure that one particular measure implemented Article 22.2: "In accordance with Article 1.1, the European Communities is free to determine the appropriate method of implementing the provisions of the Agreement within its own legal system and practice. It is not obliged to ensure that this particular Regulation implements Article 22.2 where it has other measures that do so."6

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