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Consequently, the Panel rules that they should be open to a broad definition of the term measure for purposes of Art. XXIII:1(b). That is to say, it is necessary for them to examine each alleged “measure”, whether a binding government action or a non-binding government action with an effect similar to a binding one, to see whether it has the particular attributes required of a measure for Art. XXIII:1(b) purposes. The Panel reaches this conclusion in considering the purpose of Art. XXIII:1(b), which is to protect the balance of concessions under GATT by providing a means to redress government actions not otherwise regulated by GATT rules that nonetheless nullify or impair a Member''s legitimate expectations of benefits from tariff negotiations. To achieve this purpose, as observed by the Panel, it is important that the kinds of government actions considered to be measures covered by Art. XXIII:1(b) should not be defined in an unduly restrictive manner. Otherwise, there is the risk of cases, in which governments have been involved one way or another in the nullification or impairment of benefits, which will not be redressable under Art. XXIII:1(b), thereby preventing the achievement of its purpose. In fact, it is difficult to establish bright-line rules in this regard.
However, as stressed by the Panel, giving a broad definition to measure does not expand the scope of the Art. XXIII:1(b) remedy because it remains incumbent on the complaining Member to clearly demonstrate how the measure at issue results in or causes nullification or impairment of benefits. At the same time, it may also be true that not every utterance by a government official or study prepared by a non-governmental body at the request of the government or with some degree of government support can be viewed as a measure of a Member government. At all events the responding Member''s government is only responsible for what it has itself caused. Thus, that possibility will need to be examined on a case-by-case basis.
（ii）Measures Falling under Other Provisions of the GATT 1994
In EC–Asbestos (DS135), before the Panel, Canada claims that, under Art. XXIII:1(b) of the GATT 1994, the application of the measure at issue nullified or impaired benefits accruing to Canada. The European Communities raises preliminary objections, arguing on two grounds that the measure fall outside the scope of application of Art. XXIII:1(b). First, the European Communities contends that Art. XXIII:1(b) applies only to measures which does not otherwise fall under other provisions of the GATT 1994. Second, the European Communities argues that, while it may be possible to have “legitimate expectations” in connection with a purely “commercial” measure, it is not possible to claim “legitimate expectations” with respect to a measure taken to protect human life or health, which can be justified under Art. XX(b) of the GATT 1994.6
As to the first preliminary objection, the Panel finds as follows:7
“The EC seem to believe that the fact that a measure is ‘justified’ on the basis of Article XX creates a legal situation different, on the one hand, from the situation in which the measure violates a provision of the GATT 1994 and, on the other, from the situation in which the measure does not fall under the provisions of the GATT 1994. In support of their position, the EC cite a passage from the Panel Report in Japan - Film which mentions that Article XXIII:1(b) provides ‘the means to redress government actions not otherwise regulated by GATT rules …’. The Communities also refer to the introductory clause of Article XX which states that ‘nothing in this Agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures’ necessary to protect human life or health.
The Panel recalls, first of all, that both the preamble to Article 26.1 of the Understanding and Article XXIII:1(b) use the words ‘measure, whether or not it conflicts with the provisions
’. To begin with, it should be noted that the wording of Article XXIII:1(b) shows unequivocally that this provision applies both in situations in which a measure conflicts and in situations in which it does not conflict with the provisions of the GATT 1994. Above, we found that the treatment accorded by the Decree to chrysotile asbestos fibres violated Article III:4 of the GATT 1994 as such, in as much as these products were like the substitute fibres mentioned by the parties and the treatment of products containing chrysotile asbestos and products containing the substitute fibres mentioned by the parties was discriminatory. Accordingly, the Decree conflicts with the provisions of Article III:4, in the sense in which that word is used in Article XXIII:1(b). However, we note that the introductory clause of Article XX states that ‘nothing in this Agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures’ necessary to protect human life or health, which might suggest that a provision consistent with the requirements of Article XX no longer conflicts with Article III:4, because Article III:4 cannot be construed as preventing this kind of measure. However, whether a measure justified on the basis of Article XX of the GATT 1994 is considered still to be in conflict with Article III:4 or is considered no longer to conflict with Article III:4 because justified under Article XX, under the terms of Article XXIII:1(b) the latter continues to be applicable to it.
We also note, firstly, that the introductory clause to Article XX, to which the EC refer, concerns the adoption or enforcement of measures necessary to protect health. The application of Article XXIII:1(b) does not prevent either the adoption or the enforcement of the Decree concerned. Article 26:1(b) stipulates that even where a measure has been found to nullify or impair benefits under, or impede the attainment of objectives, of the GATT 1994 without violation thereof, there is no obligation to withdraw the measure. Accordingly, there is no contradiction between the invocation of Article XX and the application of Article XXIII:1(b). However, that Article must be applied in such a way as to protect the balance of rights and duties negotiated. Accordingly, we do not consider that the text of Article XXIII:1(b) or that of Article XX or, finally, that of Article 26.1 of the Understanding supports the EC''s interpretation.
Secondly, we do not consider that the passage from the Japan - Film report cited by the EC supports its interpretation either. Admittedly, the words used by the panel, taken in isolation, might at first glance appear to confirm the EC''s position, insofar as it refers to ‘government actions not otherwise regulated by GATT rules’. The use of the word ‘regulated’ could signify that the field of application of Article XXIII:1(b) covered only situations in which no provision of the GATT was applicable. First of all, it is our opinion that the fact that a measure does not violate Article III:4 does not necessarily mean that the latter is not applicable to it. Article III:4 applies to any law, regulation or requirement affecting the internal sale, offering for sale, purchase, transportation, distribution or use of imported products and like products of national origin. Consequently, even if the EC''s interpretation were correct, it would not apply in the present case insofar as Article III:4 continues to be applicable to the Decree. Next, it should be noted that the panel in Japan - Film refers, in the footnote at the end of the sentence cited by the EEC, to the EEC - Oilseeds report which states, in particular, that:
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