European Communities - Measures Affecting Asbestos and Asbestos-Containing Products (WT/DS135): Report of the Panel

Summary

INTRODUCTION

In a communication dated 28 May 1998, Canada requested consultations with the European Communities (EC) pursuant to Article XXII of the General Agreement on Tariffs and Trade (GATT), Article 11 of the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement) and Article 14 of the Agreement on Technical Barriers to Trade (TBT Agreement), concerning certain measures taken by France for the prohibition of asbestos and products containing asbestos (WT/DS135/1 - G/SPS/GEN/72 - G/TBT/D/15). Canada's request states that these measures include, but are not limited to, Decree No. 96-1133 of 24 December 1996 (the “Decree”) banning asbestos, issued pursuant to the Labour Code and the Consumer Code, as amended. On 12 June 1998, Brazil asked to take part in the consultations because of its substantial trade interest (WT/DS/135/2).

In a communication dated 8 October 1998, Canada informed the Dispute Settlement Body (DSB) that the consultations held with the EC had failed to resolve the dispute satisfactorily. Consequently, Canada requested the DSB to establish a panel to examine the French measure concerning the prohibition of asbestos and products containing asbestos. In its communication, Canada claimed that the Decree, as well as any other measure which Canada might indicate, were inconsistent with Articles 2 and 5 of the SPS Agreement, Article 2 of the TBT Agreement, Articles III and XI of the GATT 1994, and, under Article XXIII:1(b) of the GATT 1994, nullified or impaired one or several advantages accruing to Canada directly or indirectly under the WTO Agreement or impeded the attainment of an objective of the Agreement owing to the fact that the banning of asbestos by France was applied whether or not it conflicted with the Agreement (WT/DS/135/3).

At its meeting held on 25 November 1998, the DSB established a panel pursuant to Canada's request. At that meeting, the parties to the dispute agreed that the Panel should have the following terms of reference:

“To examine, in the light of the relevant provisions of the covered agreements cited by Canada in document WT/DS135/3, the matter referred to the DSB by Canada in that document and to make such findings as will assist the DSB in making the recommendations or in giving the rulings provided for in those agreements”.