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王 衡
西南政法大学
国际法学院教授
西南政法大学研究生导师,法学博士、国际投资与金融法律研究中心副主任。兼任(以时间为序)(世界)国际经济法协会常务理事、亚洲国际经济法网络常务理事、中国国际经济法学会理事、中国法学会国际经济法学研究会理事、西班牙马德里仲裁院仲裁员、国际可持续发展研究院董事等职。(更多
 
 
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欧共体香蕉案III选读
 

阅读前提示1:案件简称(Short title)“EC — Bananas III”,全文下载http://www.wto.org/english/tratop_e/dispu_e/cases_e/ds27_e.htm

阅读前提示2:《维也纳条约法公约》(Vienna Convention)下载,着重看第31条、第32条http://untreaty.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf 中文版http://www.fmprc.gov.cn/chn/gxh/zlb/tyfg/t83909.htm

阅读前提示3:GATS和其他WTO协定下载http://www.wto.org/english/docs_e/legal_e/legal_e.htm

      

EUROPEAN COMMUNITIES - REGIME FOR THE IMPORTATION, SALE AND DISTRIBUTION OF BANANAS
WT/DS27/AB/R
AB-1997-3
9 September 1997

Report of the Appellate Body (Excerpt and footnotes omitted)

 

C. General Agreement on Trade in Services

1. Application of the GATS

(注:争议问题之一,GATS适用范围)

217. There are two issues.(两项争议点) to consider in this context The first is whether the GATS applies to the EC import licensing procedures.(第一项争议点是GATS是否适用于EC进口许可程序。注:该程序适用于香蕉的进口、销售与分销) The second is whether the GATS overlaps with the GATT 1994, or whether the two agreements are mutually exclusive(注:第二项争议点是GATS是否与GATT1994重叠,或者这两项协定是否相互排斥). With respect to the first issue, the Panel found that:
... no measures are excluded a priori (先验地)from the scope of the GATS as defined by its provisions. The scope of the GATS encompasses any measure of a Member to the extent it affects the supply of a service regardless of whether such measure directly governs the supply of a service or whether it regulates other matters but nevertheless affects trade in services.
For these reasons, the Panel concluded:
We therefore find that there is no legal basis for an a priori exclusion of measures within the EC banana import licensing regime from the scope of the GATS.

218. The European Communities (注:欧共体是应诉方)argues that the GATS does not apply to the EC import licensing procedures because they are not measures "affecting trade in services" within the meaning of Article I:1 of the GATS (不属于GATS第1条第1款意义上“影响服务贸易”的措施). In the view of the European Communities, Regulation 404/93 and the other related regulations deal with the importation, sale and distribution of bananas. As such, the European Communities asserts, these measures are subject to the GATT 1994, and not to the GATS (受到GATT1994而非GATS调整).

219. In contrast, the Complaining Parties (申诉方)argue that the scope of the GATS, by its terms, is sufficiently broad to encompass (涵盖) Regulation 404/93 (第“404/93“号条例)and the other related regulations as measures affecting the competitive relations between domestic and foreign services and service suppliers. This conclusion, they argue, is not affected by the fact that the same measures are also subject to scrutiny under the GATT 1994, as the two agreements are not mutually exclusive.

220. In addressing this issue, we (注:上诉机构) note that Article I:1 of the GATS provides that "[t]his Agreement applies to measures by Members affecting trade in services". In our view, the use of the term "affecting" reflects the intent of the drafters to give a broad reach to the GATS. The ordinary meaning (通常含义) of the word "affecting" (影响)implies a measure that has "an effect on" (产生作用), which indicates a broad scope of application. This interpretation is further reinforced by the conclusions of previous panels that the term "affecting" in the context of Article III of the GATT is wider in scope than such terms as "regulating" or "governing" (注:"affecting"的范围广于"监管"或"调整"). We also note that Article I:3(b) of the GATS provides that "‘services’ includes any service in any sector except services supplied in the exercise of governmental authority" (emphasis added)(注:此处"emphasis added"是指上诉机构加上了着重号,而非原文本来的着重点。任何服务部门的任何服务), and that Article XXVIII(b) of the GATS provides that the "‘supply of a service’ includes the production, distribution, marketing, sale and delivery of a service". There is nothing at all in these provisions to suggest a limited scope of application for the GATS. (…) (这些条款中没有标明GATS的适用范围有限)For these reasons, we uphold the Panel's finding that there is no legal basis (法律依据) for an a priori exclusion of measures within the EC banana import licensing regime from the scope of the GATS.(没有法律依据支持将欧共体香蕉进口许可措施事先排除在GATS适用范围之外)

221. The second issue is whether the GATS and the GATT 1994 are mutually exclusive agreements(第二项争议点:GATS与GATT1994是否相互排斥). The GATS was not intended to deal with the same subject matter as the GATT 1994. The GATS was intended to deal with a subject matter not covered by the GATT 1994, that is, with trade in services. Thus, the GATS applies to the supply of services. It provides, inter alia, for both MFN treatment and national treatment for services and service suppliers. Given the respective scope of application of the two agreements, they may or may not overlap, depending on the nature of the measures at issue (注:GATS与GATT这两项协定可能重叠也可能不重叠,这取决于争议措施的性质). Certain measures could be found to fall exclusively within the scope of the GATT 1994, when they affect trade in goods as goods. Certain measures could be found to fall exclusively within the scope of the GATS, when they affect the supply of services as services. There is yet a third category of measures that could be found to fall within the scope of both the GATT 1994 and the GATS(存在第三类措施,该措施可能属于GATS和GATT1994的适用范围). These are measures that involve a service relating to a particular good or a service supplied in conjunction with a particular good. In all such cases in this third category, the measure in question could be scrutinized under both the GATT 1994 and the GATS. However, while the same measure could be scrutinized under both agreements, the specific aspects of that measure examined under each agreement could be different. Under the GATT 1994, the focus is on how the measure affects the goods involved. Under the GATS, the focus is on how the measure affects the supply of the service or the service suppliers involved. Whether a certain measure affecting the supply of a service related to a particular good is scrutinized under the GATT 1994 or the GATS, or both, is a matter that can only be determined on a case-by-case basis. This was also our conclusion in the Appellate Body Report in Canada - Periodicals (加拿大期刊案).

222. For these reasons, we agree with the Panel that the EC banana import licensing procedures are subject to both the GATT 1994 and the GATS, and that the GATT 1994 and the GATS may overlap in application to a particular measure. (注:此处结论是GATT1994和GATS可能重叠适用于一项具体措施)

2. Whether Operators (运营商) are Service Suppliers Engaged in Wholesale Trade Services (批发贸易服务提供商)
223. The European Communities raises two issues concerning the definition of wholesale trade services and the application of that definition. Both these issues relate to the Panel's finding that:
... operators in the meaning of Article 19 of Regulation 404/93 and operators performing the activities defined in Article 5 of Regulation 1442/93 are service suppliers in the meaning of Article I:2(c) of GATS provided that they are owned or controlled by natural persons or juridical persons of other Members (由其他成员的法人或自然人所拥有或控制)and supply wholesale services. When operators provide wholesale services with respect to bananas which they have imported or acquired for marketing(为营销而进口或获得的香蕉), cleared in customs or ripened (已海关清关或催熟), they are actual wholesale service suppliers. Where operators form part of vertically integrated companies(垂直整合公司), they have the capability and opportunity to enter the wholesale service market. They could at any time decide to re-sell bananas which they have imported or acquired from EC producers, or cleared in customs, or ripened instead of further transferring or processing bananas within an integrated company. Since Article XVII of GATS is concerned with conditions of competition, it is appropriate for us to consider these vertically integrated companies as service suppliers for the purposes of analysing the claims made in this case.


224. First, the European Communities questions whether the operators within the meaning of the relevant EC regulations are, in fact, service suppliers in the sense of the GATS, in that what they actually do is buy and import bananas (注:欧共体主张运营商之负责购买和进口香蕉). The European Communities argues that "when buying or importing, a wholesale trade services supplier is a buyer or importer and not covered by the GATS at all, because he is not providing any reselling services".…(没有提供转售服务)

225. On the first of these two issues, we agree with the Panel that the operators as defined under the relevant regulations of the European Communities are, indeed, suppliers of "wholesale trade services" within the definition set out in the Headnote to Section 6 of the CPC ( 注:CPC是联合国《产品集中临时分类》,即Provisional Central Product Classification。新版本名为Central Product Classification). We note further that the European Communities has made a full commitment for wholesale trade services (CPC 622), with no conditions or qualifications, in its Schedule of Specific Commitments under the GATS(GATS服务承诺减让表). ….

    226. The Headnote to Section 6 of the CPC defines "distributive trade services" in relevant part as follows:
... the principal services rendered by wholesalers and retailers may be characterized as reselling merchandise, accompanied by a variety of related, subordinated services ... (emphasis added)
We note that the CPC Headnote characterizes the "principal services" rendered by wholesalers as "reselling merchandise". This means that "reselling merchandise" is not necessarily the only service provided by wholesalers. The CPC Headnote also refers to "a variety of related, subordinated services" that may accompany the "principal service" of "reselling merchandise".…(注:并非只提供"转售服务",还可提供“各类相关、从属服务”)

227. The second issue relates to "integrated companies". In our view, even if a company is vertically-integrated, and even if it performs other functions related to the production, importation, distribution and processing of a product, to the extent that it is also engaged in providing "wholesale trade services" and is therefore affected in that capacity by a particular measure of a Member in its supply of those "wholesale trade services", that company is a service supplier within the scope of the GATS.

228. For these reasons, we uphold the Panel's findings on both these issues.


3. Article II of the GATS
(注:GATS第2条最惠国待遇问题)
229. The European Communities appeals the Panel's finding:
... that the obligation contained in Article II:1 of GATS to extend "treatment no less favorable" (“不低于待遇”)should be interpreted in casu (在这种情况下) to require providing no less favorable conditions of competition.
The critical issue here is whether Article II:1 of the GATS applies only to de jure(法理上), or formal, discrimination or whether it applies also to de facto (事实上) discrimination.

230. The Panel's approach to this question was to interpret the words "treatment no less favorable" in Article II:1 of the GATS by reference to paragraphs 2 and 3 of Article XVII of the GATS. The Panel said:
... we note that the standard of "no less favorable treatment" in paragraph 1 of Article XVII is meant to provide for no less favorable conditions of competition regardless of (无论,不考虑) whether that is achieved through the application of formally identical or formally different measures (形式上相同或不同的措施). Paragraphs 2 and 3 of Article XVII serve the purpose of codifying this interpretation, and in our view, do not impose new obligations on Members additional to those contained in paragraph 1. In essence, the "treatment no less favorable" standard of Article XVII:1 is clarified and reinforced in the language of paragraphs 2 and 3. The absence of similar language in Article II is not, in our view, a justification for giving a different ordinary meaning in terms of Article 31(1) of the Vienna Convention (《维也纳条约法公约》) to the words "treatment no less favorable", which are identical in both Articles II:1 and XVII:1.
 
231. We find the Panel's reasoning on this issue to be less than fully satisfactory. The Panel interpreted Article II of the GATS in the light of panel reports interpreting the national treatment obligation of Article III of the GATT. The Panel also referred to (援引)Article XVII of the GATS, which is also a national treatment obligation. But Article II of the GATS relates to MFN treatment, not to national treatment. Therefore, provisions elsewhere in the GATS relating to national treatment obligations, and previous GATT practice relating to the interpretation of the national treatment obligation of Article III of the GATT 1994 are not necessarily relevant to the interpretation of Article II of the GATS. The Panel would have been on safer ground had it compared the MFN obligation in Article II of the GATS with the MFN and MFN-type obligations in the GATT 1994.

232. Articles I and II of the GATT 1994 have been applied, in past practice, to measures involving de facto discrimination. We refer, in particular, to the panel report in European Economic Community - Imports of Beef from Canada, which examined the consistency of EEC regulations implementing a levy-free tariff quota for high quality grain-fed beef with Article I of the GATT 1947. Those regulations made suspension of the import levy for such beef conditional on production of a certificate of authenticity. The only certifying agency authorized to produce a certificate of authenticity was a United States agency. The panel, therefore, found that the EEC regulations were inconsistent with the MFN principle in Article I of the GATT 1947 as they had the effect of denying access to the EEC market to exports of products of any origin other than that of the United States (原产地不是来自美国).

233. The GATS negotiators chose to use different language in Article II and Article XVII of the GATS in expressing the obligation to provide "treatment no less favorable". The question naturally arises: if the GATS negotiators intended that "treatment no less favorable" should have exactly the same meaning in Articles II and XVII of the GATS, why did they not repeat paragraphs 2 and 3 of Article XVII in Article II? But that is not the question here. The question here is the meaning of "treatment no less favorable" with respect to the MFN obligation in Article II of the GATS. There is more than one way of writing a de facto non-discrimination provision. Article XVII of the GATS is merely one of many provisions in the WTO Agreement that require the obligation of providing "treatment no less favorable". The possibility that the two Articles may not have exactly the same meaning does not imply that the intention of the drafters of the GATS was that a de jure, or formal, standard should apply in Article II of the GATS. If that were the intention, why does Article II not say as much? The obligation imposed by Article II is unqualified (未设置限制). The ordinary meaning of this provision does not exclude de facto discrimination. Moreover, if Article II was not applicable to de facto discrimination, it would not be difficult -- and, indeed, it would be a good deal easier in the case of trade in services, than in the case of trade in goods -- to devise discriminatory measures aimed at circumventing the basic purpose of that Article. (此处讨论“treatment no less favorable”是否包含事实和法定这两种歧视)

234. For these reasons, we conclude that "treatment no less favorable" in Article II:1 of the GATS should be interpreted to include de facto, as well as de jure, discrimination. We should make it clear that we do not limit our conclusion to this case. We have some difficulty in understanding why the Panel stated that its interpretation of Article II of the GATS applied "in casu"…

6. Whether the EC Licensing Procedures are Discriminatory Under Articles II  (最惠国待遇)and XVII (国民待遇)of the GATS
240. The European Communities argues that the EC licensing system for bananas is not discriminatory under Articles II and XVII of the GATS, because the various aspects of the system, including the operator category rules, the activity function rules and the special hurricane licence rules (特别飓风许可规则), "pursue entirely legitimate policies" and "are not inherently discriminatory in design or effect".

241. We see no specific authority (法律依据)either in Article II or in Article XVII of the GATS for the proposition that the "aims and effects" of a measure are in any way relevant in determining whether that measure is inconsistent with those provisions. In the GATT context, the "aims and effects" theory (目的与效果理论) had its origins in the principle of Article III:1 that internal taxes or charges or other regulations "should not be applied to imported or domestic products so as to afford protection to domestic production". There is no comparable provision in the GATS. Furthermore, in our Report in Japan - Alcoholic Beverages, the Appellate Body rejected the "aims and effects" theory with respect to Article III:2 of the GATT 1994. The European Communities cites an unadopted panel report (注:未通过的GATT期间(1947-1994)专家组报告)dealing with Article III of the GATT 1947, United States - Taxes on Automobiles, as authority for its proposition, despite our recent ruling. (注:此处指出“目的和效果”理论不适用于GATS第2条和第17条)

(a) Operator Category Rules

242. The European Communities argues that the aim of the operator category system, in view of the objective of integrating the various national markets, and of the differing situations of banana traders in the various Member States, was not discriminatory but rather was to establish machinery for dividing the tariff quota among the different categories of traders concerned (注:旨在分配关税配额). …The effect of the operator category rules, the European Communities argues, is to leave a commercial choice in the hands of the operators.

243. We do not agree with the European Communities that the aims and effects of the operator category system are relevant in determining whether or not that system modifies the conditions of competition (改变了竞争关系)between service suppliers of EC origin and service suppliers of third-country origin (原产于第三国的服务提供商。注:扩展阅读建议 王衡,《服务原产地规则研究》,法律出版社2010年版;王衡,"WTO Origin Rules for Services and the Defects: Substantial Input Test as One Way Out?", Journal of World Trade, Vol. 44(5), http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=578571). Based on the evidence before it, the Panel concluded "that most of the suppliers of Complainants' origin are classified in Category A for the vast majority of their past marketing of bananas, and that most of the suppliers of EC (or ACP) origin are classified in Category B for the vast majority of their past marketing of bananas". We see no reason to go behind these factual conclusions of the Panel (注:原产于申诉方的服务提供商被归类为A类,大多数来自EC或ACP的服务商被归类为B类。另:此处ACP是指African, Caribbean and Pacific countries,即非洲、加勒比海与太平洋国家).

244. We concur, therefore, with the Panel's conclusion that "the allocation to Category B operators of 30 per cent of the licences allowing for the importation of third-country and nontraditional ACP bananas at in-quota tariff rates (配额类关税税率,注:该税率通常较低)creates less favorable conditions of competition for like service suppliers of Complainants' origin and is therefore inconsistent with the requirement of Article XVII of GATS". We also concur with the Panel's conclusion that the allocation to Category B operators of 30 per cent of the licences for importing third-country and non-traditional ACP bananas at in-quota tariff rates is inconsistent with the requirements of Article II of the GATS.

(b) Activity Function Rules

245. The European Communities maintains that the aim of the activity function rules is to protect the banana ripeners (香蕉催熟商) against the concentration of economic bargaining power in the hands of the primary importers as a result of the tariff quota (关税配额). The European Communities contends that the policy objective is to correct the position of all ripeners vis-à-vis all suppliers of bananas, without distinction as to nationality. …

246. As indicated earlier, we do not accept the argument by the European Communities that the aims or effects of the activity function rules are relevant in determining whether they provide less favorable conditions of competition to services and service suppliers of foreign origin. In this respect, we note the Panel's factual conclusions that:
... even the EC statistics suggest that 74 to 80 per cent of ripeners are EC controlled. Thus, we conclude that the vast majority of the ripening capacity in the EC is owned or controlled by natural or juridical persons of the EC and that most of the bananas produced in or imported to the EC are ripened in EC owned or controlled ripening facilities. …

Given these factual findings, we see no reason to reverse the Panel's legal conclusion that the allocation to ripeners of a certain proportion of the Category A and B licences allowing the importation of third-country and non-traditional ACP bananas at in-quota tariff rates creates less favorable conditions of competition for like service suppliers of Complainants' origin, and is therefore inconsistent with the requirements of Article XVII of GATS.

(c) Hurricane Licences (飓风许可)

247. The European Communities asserts that the purpose of the hurricane licences is to compensate those that suffer damage caused by tropical storms. With respect to Article XVII of the GATS, the European Communities maintains that the hurricane licence provisions do not modify competitive conditions between EC operators and operators of Complaining Parties' origin. With respect to Article II of the GATS, the European Communities argues that there is no de facto discrimination since there is no indication in the hurricane licence rules that operators that are not ACP-owned or -controlled cannot own or represent ACP producers on the same basis as ACP or EC-owned or -controlled operators.

248. Once again, we do not accept the argument by the European Communities that the aims and effects of a measure are relevant in determining its consistency with Articles II or XVII of the GATS. We note that under the EC hurricane licence rules, only operators who include or directly represent EC or ACP producers or producer organizations affected by a tropical storm are eligible for allocation of hurricane licences. The Panel made a conclusion of fact that "the vast majority of operators who ‘include or directly represent’ EC or ACP producers are service suppliers of EC (or ACP) origin". Given this factual finding, we do not reverse the Panel's conclusions in paragraphs 7.393 and 7.397 of the Panel Reports. …

 

 



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