European Communities - Measures Affecting Asbestos and Asbestos-Containing Products (WT/DS135/AB/R): Report of the Appellate Body

Summary

INTRODUCTION

Canada appeals certain issues of law and legal interpretations developed in the Panel Report in European Communities - Measures Affecting Asbestos and Asbestos- Containing Products (the “Panel Report”). The Panel was established to consider claims made by Canada regarding French Decree No. 96-1133 concerning asbestos and products containing asbestos (décret no. 96-1133 relatif à l'interdiction de l'amiante, pris en application du code de travail et du code de la consommation) (“the Decree”), which entered into force on 1 January 1997.

Articles 1 and 2 of the Decree set forth prohibitions on asbestos and on products containing asbestos fibres, followed by certain limited and temporary exceptions from those prohibitions:

Article 1

For the purpose of protecting workers, and pursuant to Article L. 231-7 of the Labour Code, the manufacture, processing, sale, import, placing on the domestic market and transfer under any title whatsoever of all varieties of asbestos fibres shall be prohibited, regardless of whether these substances have been incorporated into materials, products or devices.

For the purpose of protecting consumers, and pursuant to Article L. 221.3 of the Consumer Code, the manufacture, import, domestic marketing, exportation, possession for sale, offer, sale andtran sfer under any title whatsoever of all varieties of asbestos fibres or any product containing asbestos fibres shall be prohibited.

The bans instituted under Articles I and II shall not prevent fulfilment of the obligations arising from legislation on the elimination of wastes.

Article 2

On an exceptional and temporary basis, the bans instituted under Article 1 shall not apply to certain existing materials, products or devices containing chrysotile fibre when, to perform an equivalent function, no substitute for that fibre is available which:

- On the one hand, in the present state of scientific knowledge, poses a lesser occupational health risk than chrysotile fibre to workers handling those materials, products or devices;

- on the other, provides all technical guarantees of safety corresponding to the ultimate purpose of the use thereof.

The scope of application of paragraph I of this Article shall cover only the materials, products or devices falling within the categories shown in an exhaustive list decreed by the Ministers for Labour, Consumption, the Environment, Industry, Agriculture and Transport.