Document jBXjxGa3OaGdOvbjR3MQvwBK5

Page 48 concerns the issue whether a "benefit" has been "nullified or impaired" by a measure restricting market access for products posing a health risk. Here, we emphasize that the European Communities does not appeal the Panel's findings relating to the "nullification or impairment" of a "benefit" through the frustration of reasonable expectations by application of the measure at issue. We do not, therefore, find it necessary to examine the European Communities' argument relating to reasonable expectations. 191. For these reasons, we dismiss the European Communities' appeal under Article XXIII:1(b) of the GATT 1994 and uphold the Panel's finding that Article XXIII:1(b) applies to measures which fall within the scope of application of other provisions of the GATT 1994 and which pursue health objectives. IX. Findings and Conclusions 192. For the reasons set out in this Report, the Appellate Body: (a) reverses the Panel's finding, in paragraph 8.72(a) of the Panel Report, that the TBT Agreement "does not apply to the part of the Decree relating to the ban on imports of asbestos and asbestos-containing products because that part does not constitute a 'technical regulation' within the meaning of Annex 1.1 to the TBT Agreement", and finds that the measure, viewed as an integrated whole, does constitute a "technical regulation" under the TBT Agreement; (b) reverses the Panel's findings, in paragraphs 8.132 and 8.149 of the Panel Report, that "it is not appropriate" to take into consideration the health risks associated with chrysotile asbestos fibres in examining the "likeness", under Article III:4 of the GATT 1994, of those fibres and PCG fibres, and, also, in examining the "likeness", under thiat provision, of cement-based products containing chrysotile asbestos fibres or PCG fibres; *54 (c) reverses the Panel's, ffinding, in paragraph 8.144 of the Panel Report, that chrysotile asbestos fibres and PCG fibres are "like products" under Article III:4 of the GATT 1994; and finds that Canada has not satisfied its burden of proving that these fibres are "likte products" under that provision; (d) reverses the Panel's findi_ng, in paragraph 8.150 of the Panel Report, that cement-based products containing chrysotile asbestos fibres and cement- based products containing PCG fibres are "like products" under Article 111:4 of the GATT 1994; and finds that Canada has not satisfied its burden of proving that these cement-based products are "like prroducts" under Article III:4 of the GATT 1994; (e) reverses, in consequence, the Panel's finding, in paragraph 8.158 of the Panel Report, that the measure is inconsistent with Article III:4 ofthe GATT 1994; (f) upholds the Panel's findiixg, in paragraphs 8.194, 8.222 and 8.223 of the Panel Report, that the measure at issue is "necessary to protect human ... life or health", within the meaning of Article XX(b) of the GATT 1994; and, finds that the Panel acted consistently with Article 11 of the DSU in reaching this conclusion; (g) upholds the Panel's findiixg, in paragraphs 8.265 and 8.274 of the Panel Report, that the measure may give rise to a cause of action under Article XXIII:1(b) Of the GATT 1994. 193. It follows from our finding's that Canada has not succeeded in establishing that the measure at issue is inconsistent with the obligations of the European Communities under the covered agreements and, accordingly, we do not make any recommendations to the DSB under A.rticle 19.1 of the DSU. Signed in the original at Geneva this 16th day of February 2001 by: Florentino P. Feliciano