Document emm2MbZ07jd9NMKMGnnd4DMVm

Page 9 among garage and brake mechanics, or among construction workers, resulting from the manipulation of chrysotile asbestos. Canada adds that the Panel also fai_led to make an objective' assessment of the matter before it because, in its determinations on the "controlled use" of chrysotiLe, it relied extensively on the opinions of the experts consulted, who in fact di-d not possess expertise in the area of "controlled use". B. Arguments of the European Communities - Appellee 1. TBT Agreement *8 23. The European Communities urges the Appellate Body to reject Canada's appealon the TBT Agreement. The E'anel correctly concluded that the "prohibition part" of the Decree is not a technical regulation within the meaning of Annex 1.1 to the TBT Agreement. Canada's arguments with respect to the "exceptions part" of the Decree are legally irrelevant, sdLnce it would be impossible for the Appellate Body to complete the legal analysis due to the lack of sufficient and undisputed facts. The European Communities adds that the claims made by Canada under the TBT Agreement should, in any event, be denied. 24. The European Communities sees no error in the Panel's separation of the prohibitions part of the Decree from the exceptions part. The exceptions are ancillary to the prohibitions, and separating the two parts for the purpose of their legal characterization under the TBT Agreement in no way affects the internal coherence of the Decree. In this case, the issue before the Panel was whether the prohibitions laid down in the Deccree constitute a technical regulation, not whether, in the abstract, a general ban nay be a technical regulation. The European Communities also considers that the Panel correctly interpreted the term "technical regulation", and that the interpretation suggested by Canada would deprive other GATT 1994 provisions, such as Article XI, of effect. 25. The European Communities agrees with the Panel's treatment of the exceptions part of the Decree, and insists that, having made no specific violation claim regarding the narrowness of the exceptions throughout these proceedings ,, Canada cannot now argue that the exceptions violate the TBT Agreement. The European Communities argues that the Appellate Body is in any case prevented from addressing Canada's claims under the TBT Agreement because to do so would require the Appellate Body to make findings of a factual and technical nature which, in the akosence of undisputed facts and findings in the record, it cannot do on appeal. The Appellate Body could not simply use the findings of the Panel under Articles III: 4 and XX of the GATT 1994 as a basis for an analysis under the TBT Agreement. While the two sets of rules are related, they are not "part of a logical continuum", [FN22] and are not sufficiently closely related as "to allow the Appellate Body to extrapolate the findings of the Panel under Article III:4 and Article XX(b) of the GATT 1994 into the sphere of the TBT Agreement. Should the Appellate Body examine Canada's claims under the TBT Agreement, the European Communities argues that these claims should be dismissed and refers, in this regard, to its arguments with respect to Article XX(b) of the GATT 1994, and to the arguments it made before the Panel with regard to Articles 2.1, 2.2, 2.4 and 2.8 o. the TBT Agreement. 2. Article XX(b) of the GATT 199-a and Article ll of the DSU 26. The European Communities submits that the Panel's finding that the violation of Article 111:4 is justified under Article XX(b) of the GATT 1994 is legally sound