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And in 1987, a panel on the US-Superfund summarized the legal situation regarding the presumption of nullification or impairment as follows: “The Panel examined how the CONTRATING PARTIES have reacted in previous cases to claims that a measure inconsistent with the General Agreement had no adverse impact and therefore did not nullify or impair benefits accruing under the General Agreement to the contracting party that had brought the complaint. The Panel noted that such claims had been made in a number of cases but that there was no case in the history of the GATT in which a contracting party had successfully rebutted the presumption
. The Panel concluded
that, while the CONTRACTING PARTIES had not explicitly decided whether the presumption that illegal measures cause nullification or impairment could be rebutted, the presumption had in practice operated as an irrefutable presumption.”3
As noted above, panels under the GATT cast doubt on the idea that the presumption of nullification or impairment might be rebuttable on the ground that the failure to observe the obligation had no impact on trade flows. Because once the benefits accruing under the basic GATT provisions governing import controls have been defined in terms of conditions of competition rather than trade flows, the idea that a measure might be inconsistent with a provision of the GATT prescribing certain conditions of competition but nevertheless not impair benefits accruing under it for lack of any trade effects is no longer tenable.
(iii) Rulings under the WTO Jurisprudence
In practice, various panels or the standing Appellate Body in most cases make a presumption of nullification or impairment under the WTO directly from the establishment of a violation. For example, in EC-Computer Equipment (DS62/DS67/DS68), the Panel rules in its report that, “
n view of our finding that the tariff treatment of LAN equipment by customs authorities in the European Communities violated Article II:1 of GATT 1994, we find that it is not necessary to examine this additional claim with respect to LAN equipment, except to note that the infringement of GATT rules is considered prima facie to constitute a case of nullification or impairment under Article 3.8 of the DSU”.4
And in US-1916 Act (DS136), the Panel rules as: “We have found that the 1916 Act as such violates Article VI:1 and VI:2 of the GATT 1994, as well as Articles 1, 4 and 5.5 of the Anti-dumping Agreement. We also concluded that, by not ensuring the conformity of the 1916 Act with its obligations as provided under the above-mentioned provisions, the United States violates Article XVI:4 of the Agreement Establishing the WTO. Since Article 3.8 of the DSU provides that ‘
n cases where there is an infringement of the obligations assumed under a covered agreement, the action is considered prima facie to constitute a case of nullification or impairment’ and as the United States has adduced no evidence to the contrary, we conclude that the 1916 Act nullifies or impairs benefits accruing to the European Communities under the WTO Agreement”.5
Nevertheless, some panels and the Appellate Body have also systematically rejected as insufficient the demonstration of an absence of trade impact in some cases. For example, in EC- Bananas (DS27) 6, EC attempts to rebut the presumption of nullification or impairment with respect to the Panel''s findings of violations of the GATT 1994 on the basis that US have never exported a single banana to the European Community, and therefore, could not possibly have suffered any trade damage.
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