WTO Dispute Settlement Mechanism(2)/刘成伟(44)
The European Communities appeals the Panel's findings and conclusions relating to the first preliminary objections. And this is the first occasion for the Appellate Body to examine Article XXIII:1(b) of the GATT 1994.
When the Appellate Body turns to the European Communities' argument that Art. XXIII:1(b) does not apply to measures falling within the scope of application of other provisions of the GATT 1994, they rule that: “[…] The text of Article XXIII:1(b) stipulates that a claim under that provision arises when a ‘benefit’ is being ‘nullified or impaired’ through the ‘application … of any measure, whether or not it conflicts with the provisions of this Agreement’. The wording of the provision, therefore, clearly states that a claim may succeed, under Article XXIII:1(b), even if the measure ‘conflicts’ with some substantive provisions of the GATT 1994. It follows that a measure may, at one and the same time, be inconsistent with, or in breach of, a provision of the GATT 1994 and, nonetheless, give rise to a cause of action under Article XXIII:1(b). Of course, if a measure ‘conflicts’ with a provision of the GATT 1994, that measure must actually fall within the scope of application of that provision of the GATT 1994. We agree with the Panel that this reading of Article XXIII:1(b) is consistent with the panel reports in Japan - Film and EEC - Oilseeds, which both support the view that Article XXIII:1(b) applies to measures which simultaneously fall within the scope of application of other provisions of the GATT 1994. Accordingly, we decline the European Communities' first ground of appeal under Article XXIII:1(b) of the GATT 1994. ” 8
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