122. The representative of the European Communities said that it was the understanding of his delegation that, pursuant to Article 64.3 of the TRIPS Agreement, the provisions of Article XXIII:1(b) and (c) of GATT 1994 would automatically apply to disputes under the TRIPS Agreement as from 1 January 2000, unless a consensus was reached beforehand that established otherwise. However, Article 64.3 also invited the Council to determine the scope and modalities for such types of complaints by that date. He thanked the Secretariat for its background note, which provided relevant information on the history of Article 64.2 and 64.3 and gave examples of non-violation cases. It had to be underlined that these examples showed the specificity of these types of complaints, which did not require any violation of an obligation but, instead, could be based on nullification or impairment of a benefit afforded by an agreement to a Member of that agreement without a violation of that agreement. Although the TRIPS Agreement was set up as part of the results of the Uruguay Round, his delegation believed that it was not the result of negotiations on market access or tariffs on goods or services, but had established minimum standards of protection of intellectual property rights and procedures and remedies allowing right holders to enforce these rights in all Members. Everybody knew that the area of intellectual property rights was very different from other WTO areas, which was an important aspect to be taken into account during the Council's debates. One of the specific aspects of non-violation disputes was the applicable remedy; as there was no violation, there was no obligation to withdraw or modify the disputed measure. Any measure taken by a Member which was consistent with its TRIPS obligations did not need to be withdrawn. However, if the measure had the effect of nullifying or impairing benefits, a remedy should be found under the DSU rules through a mutually satisfactory adjustment. In its background note, the Secretariat had indicated that under a number of regional free trade agreements, that had similar non-violation dispute settlement provisions, not many cases had been reported of this type of dispute in respect of intellectual property. Therefore, the Council needed to look very carefully at the notion of benefits or objectives in this context. His delegation had taken note of the first comments on this concept in the debate at the present meeting and in the paper tabled by the delegations of Cuba, the Dominican Republic, Egypt, Indonesia, Malaysia and Pakistan. It had also studied carefully the paper submitted by Canada in which it was argued that the non-violation remedy was not suitable in the context of the TRIPS Agreement, as the Agreement was not principally concerned with questions of market access and did not include a commitment to a certain level of market access. However, in the view of his delegation, he wished to make clear that well-developed intellectual property legislation, and strong protection of intellectual property rights, as provided by the TRIPS Agreement, was a means of ensuring market access. In the light of this remark, the introduction of non-violation to disputes under the TRIPS Agreement was a matter that deserved very careful consideration, because it would allow any Member to lodge a complaint against any other Member whom it considered as nullifying or impairing a benefit afforded by the TRIPS Agreement without actually violating the Agreement. However, it was important to avoid any abuse of such a possibility by Members using it in circumstances substantially different from those seen on the tariff side. His delegation had taken note of the concerns raised that the development of non-violation cases might be used to extend the law under the WTO regime. The Council should not allow this to happen. Although non-violation complaints had arisen in other areas of the WTO, careful consideration should be given to their applicability under the TRIPS Agreement, as long as it was not clear how the provisions of Article XXIII:1(b) and (c) would apply in this context. Therefore, the European Communities and their member States were ready to examine in the Council in much greater detail the scope and modalities of complaints of this type, as required by Article 64.3.
