WTO Dispute Settlement Mechanism(2)/刘成伟(42)
We also note, firstly, that the introductory clause to Article XX, to which the EC refer, concerns the adoption or enforcement of measures necessary to protect health. The application of Article XXIII:1(b) does not prevent either the adoption or the enforcement of the Decree concerned. Article 26:1(b) stipulates that even where a measure has been found to nullify or impair benefits under, or impede the attainment of objectives, of the GATT 1994 without violation thereof, there is no obligation to withdraw the measure. Accordingly, there is no contradiction between the invocation of Article XX and the application of Article XXIII:1(b). However, that Article must be applied in such a way as to protect the balance of rights and duties negotiated. Accordingly, we do not consider that the text of Article XXIII:1(b) or that of Article XX or, finally, that of Article 26.1 of the Understanding supports the EC's interpretation.
Secondly, we do not consider that the passage from the Japan - Film report cited by the EC supports its interpretation either. Admittedly, the words used by the panel, taken in isolation, might at first glance appear to confirm the EC's position, insofar as it refers to ‘government actions not otherwise regulated by GATT rules’. The use of the word ‘regulated’ could signify that the field of application of Article XXIII:1(b) covered only situations in which no provision of the GATT was applicable. First of all, it is our opinion that the fact that a measure does not violate Article III:4 does not necessarily mean that the latter is not applicable to it. Article III:4 applies to any law, regulation or requirement affecting the internal sale, offering for sale, purchase, transportation, distribution or use of imported products and like products of national origin. Consequently, even if the EC's interpretation were correct, it would not apply in the present case insofar as Article III:4 continues to be applicable to the Decree. Next, it should be noted that the panel in Japan - Film refers, in the footnote at the end of the sentence cited by the EEC, to the EEC - Oilseeds report which states, in particular, that:
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