Document jyJdJrg9yM2n0EwyeOJBv9ObR

Page 15 interpretation unduly excludes from the scope of the TBT Agreement- a wide range of measures affecting products that could potentially represent barri_ers to trade. Brazil also contests the Paixel's finding that a technical regulati_on must include specifications to be met in order for a product to be authorized ffor marketing. Brazil adds that, in its view, both France and the European Commura-ities conceded, when they notified the Decree under the TBT Agreement, that the measure is a technical regulation. 2. United States (a) TBT Agreement 46. The United States argn.es that the Panel erred in its interpretation of the phrase "technical regulation" in Annex 1 to the TBT Agreement, anci., in consequence, improperly excluded from the: scope of the TBT Agreement technical regulations that apply generally to products. Specifically, the United States contends that the Panel erred in finding that the phrrase "product characteristics" in the definition of "technical regulation" refers to characteristics of "one or more griven products", rather than characteristics of products generally. 47. Should the Appellate Body find that the TBT Agreement applies to the Decree and decide to complete the a.nalysis of Canada's claims under that Agreement, the United States submits that t-he Appellate Body should find that the Decree is consistent with the TBT Agreement. Asbestos and asbestos- containing products, on the one hand, and substitute fibres and asbestos-free products, or*, the other, are not "like products" within the meaning of Article 2.1 of the TBT Agreement for the same reasons that they are rxot "like products" for the purposes o Article 111:4 of the GATT 1994. The test to te applied under Article 2.2 of the TBT" Agreement is very similar to the test to be ap>plied under Article XX(b) and the intr-oductory clause to Article XX. However, unlike Article XX of the GATT 1994, where the burden was on the European Communities to present a prima facie case that the Deeres was justified, under Article 2.2 of the TBT` Agreement, it is for Canada to make a. prima facie case that the Decree creates an unnecessary barrier to trade, and it has not done so. The Decree is also consistent wi_th Article 2.4 of the TBT Agreement, since the international standards identified by Canada are neither relevant to, nor an effective or appropriate means of achieving, France's public healfc.h objective. Lastly, the United States ar-gues that the Decree is consistent with Article 2.8 of the TBT Agreement, since it would be inappropriate to express the technical regulation in any way other than as a prohibition on the use of asbestos. (b) "Like Products" in Article 111:4 of the GATT 1994 *15 48. The United States submits that the Panel erred in concluding that asbestos fibres and substitute fibres are "like products" under Article IIE A of the GATT 1994. The Panel erred in law/' in concluding that, in examining the properties, nature and quality of asbestos, it could not take into account the fact t-hat asbestos differs from other fibres because it splits longitudinally into narrow, or thin, fibres, and has a high poterxtial to release particles that possess certain characteristics, and in concluding that, in examining consumer tastes and habits, it could not take account of tfxe proven carcinogenic nature of asbest-os. In so proceeding, the Panel ignored the single most important distinguishing feature between asbestos and its substitutes. The Panel also wrongly infla-ted the significance of another factor - the end uses of products concerned. In the view of the United States, the appli_cation of a proper "like product" anal_ysis should lead