Document nqp1NDB6OReJBpMZKn7GBEpw

Page 34 to tra<de or to competition." [FN106] We, therefore, do not accept Canada's conten tion that, in markets where normal conditions of competition have been disturbed by regulatory or fiscal barriers, consumers' tastes and habits cease to be relevant. In such situations, a Member may submit evidence of latent, or suppressed, consumer demand in that market, or it may smbmit evidence of substitutability from some relevant third market. In making this point, we do not wish to be taken to sugges-t that there is latent demand for chrysotile asbestos fibres. Our point is simply that the existence of the measure does not render consumers' tastes and habits irrelevant, as Canada contends. 124. We observe also that the Panel did not regard as decisive the different tariff classifications of the chrysotile ast>estos, PVA, cellulose and glass fibres, each o which is classified under a different tariff heading. [FN107] In the absence of a full analysis, by the Panel, of the oth.er three criteria addressed, we cannot determine what importance should be attached, to the different tariff classifications of the fibres. 125. In sum, in our view, the Panel reached the conclusion that chrysotile asbestos and PCG fibres are "like products" under Article 111:4 of the GATT 1994 on the foUlowing basis: the Panel disregarded t. he quite different "properties, nature and quelity" of chrysotile asbestos and PCG fibres, as well as the different tariff classification of these fibres; it considere d no evidence on consumers' tastes and habits ; and it found that, for a "small number" of the many applications of these fibres , they are substitutable, but it did n.ct consider the many other end-uses for the filores that are different. Thus, the only evidence supporting the Panel's finding of "likeness" is the "small number" of shared end-uses of the fibres. 126. For the reasons we have given, we fin.d this insufficient to justify the conclusion that the chrysotile asbestos and PCG fibres are "like products" and we, therefore, reverse the Panel's conclusion, i n paragraph 8.144 of the Panel Report, "that chrysotile fibres, on the one hand, an.d PVA, cellulose and glass fibres, on the otlner, are 'like products' within the meaning of Article 111:4 of the GATT 1994." 3. Cement-based products containing chrysoti le and PCG fibres *37 3.27. Having reversed the Panel's finding on the "likeness" of the fibres, we now exemine the Panel's findings regarding tlie "likeness" of cement- based products containing chrysotile asbestos fibres and cement-based products containing PCG fibres . In examining the "likeness" of these cement-based products, the Panel stated that, physically, the only difference between these products is the incorporation of a different fibre. [FN108] In this respect, the Panel indicated that "many of the arguments put forward in relation to chrysot lie asbestos, PVA, cellulose and glass fibres are applicable mutatis mutandis to products containing those fibres." [FN109] The Panel noted that, for any given cement-based product, the tariff classification is the same, irrespective of the fibre incorporated into the product. [FN110] The Panel declined to examine the "risk" criterion advanced by the European Communities, and also considered it unnecessary to analyze consumers' tastes and habits. [FN111] On this basis, the Panel concluded that "chr^sotile-fibre products and fibro-cement products are like products within the meaning of Article 111:4 of the GATT 1994." [FN1121 128. As the Panel said, the primary physical difference between cement-based products containing chrysotile asbestos fibres and cement-based products containing PCG fifcores lies in the particular fibre incorporated into the product. This difference is important because, as we have said in our examination of fibres, we believe that the health risks associated witli a product may be relevant to the