E. The Panel erred in its interpretation of the second sentence of Article III:2 1. The Panel's analysis of the reference to Article III:I in the second sentence of Article III:2 is in error 95. The Panel concluded that tax measures applicable to "directly competitive or substitutable" products could be found inconsistent with "the principles set forth in the first paragraph [of Article III]" whenever there was a dissimilarity in the taxation of such products that was not de minimis. Thus, if the tax difference between products in such a pair is greater than de minimis, and if products produced domestically happen to fall in the lower-taxed category, then under the Panel's reasoning there is an automatic violation of Article III:2, second sentence, regardless of whether the purpose of the tax distinction has anything to do with affording "protection to domestic production." The Panel's failure to consider the purpose of such tax distinctions would lead panels to prohibit tax distinctions that clearly have no protective purpose. (…) 2. The Panel's use of cross-price elasticity as the "decisive criterion" for whether products are "directly competitive or substitutable" was in error 101. Cross-elasticity is an important concept for understanding demand relationships in the abstract, but because of its inherent limitations and difficulties in implementing its use, use of cross-elasticity as "the decisive criterion" for determining rights and obligations under Article III:2 is completely inappropriate. The most basic objection is that making the legal rights and obligations of governments dependent on the level of cross-elasticity of demand between two products makes governments legally responsible (and vulnerable to trade retaliation) for matters that are beyond their control.
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