Document kmnkEL0eL0OYJ1VYQXg067DJb

Page "7 15. Canada argues that the Decree is inconsistent with Article 2.1 of the TBT Agreement. Since the principle of national treatment in Article 2.1 is a specific, particular expression of Article III:4 of the GATT 1994, the interpretation of tlie words "like products" in Article 2.1 must be identical to the interpretation of the same words in Article 111:4. The meaning of "like products" in Article 111:4 is relevant context and, in the view of Canada, both Article lll:4 of the GATT 1994 and Article 2.1 of the TBT Agreement have the same object and purpose, namely to avoid protectionism and to provide equality of competitive conditions for imported products in relation to domestic products. Thus, Canada maintains, the findings cf "likeness", and of less favourable treatment, made by the Panel pursuant to Article III:4 of the GATT 1994 must be extended to Article 2.1 of the TBT Agreement. 16. In Canada's view, the Decree is inconsistent with Article 2.2 of the TBT Agreement. Canada insists, first, that there is no rational connection between tlie Decree and France's objective of protecting human health since: (i) it is friable materials containing amphiboles which pose a risk to human health; (ii) the manipulation of chrysotile-cement products and other high-density products containing chrysotile asbestos fibres does not pose a danger to human health; an<i (iii) the Decree exposes the French public to substitute fibres, the health riskas of which are still poorly understood. Canada adds, second, that the Decree has effects that are more trade-restrictive than necessary to achieve its objective, in particular, because: (i) the manipulation of chrysotile- cement products and other high-density products containing chrysotile asbestos fibres does not create a ri sk to human health; and (ii) there is a less trade- restrictive alternative that protects human health, namely the "controlled use" of chrysotile-cement products and other high-density products containing chrysotile asbestos fibres. What must be demonstrated under Article 2.2 of the TBT Agreement is the same as what must be demonstrated under Article XX(b) of the GATT 1994. In this regard, according to Canada, the reports of the panel and the Appellate Body in United States - Stand-ards for Reformulated and Conventional Gasoline ("United States - Gasoline ") establi sh that a less trade-restrictive alternative can only be ruled out if it is shown t o be impossible to implement. [FN15] However, France did not demonstrate, and the Panel did not find, that it is impossible to implement "controlled use". Furthermore, Canada contends, it would be less trade-restrictive to ban products containing chrysotile asbestos fibres on the basis of a product-by- product demonstration o f the ineffectiveness and unfeasibility of "controlled use", rather than on the basis of the existence of substitute products. *6 17. Canada also argues that the Decree is inconsistent with" Article 2.4 of the TBT Agreement, because there are relevant international standards on the "contro lied use" of chrysotile, which constitute an effective and appropriate means to achieve France's objective of protecting human health. In any event, the French government acted inconsistently with Article 2.4 because it did not use international standards as a basis for the Decree. Lastly, Canada considers that the Decree is inconsistent with Article 2.8 of the TBT Agreement because it institutes a prohibition based on. the descriptive characteristics of products, rather than on requirements in terms of performance. 2. Article XX(b) of the GATT 1994 and Article 11 of the DSU 18. Canada requests that the Appellate Body reverse the Panel's findings and conclusions under Article XX(b) of the GATT 1994 and find that the Decree is not justified under that provision. Canada also asks the Appellate Body to find that the Panel did not make an "objective assessment of the matter", as required under Article 11 of the DSU, because it failed to assess the scientific data in accordance with the principle of the balance of probabilities, and failed to assess the fac ts objectively.