🧑‍⚖️ Australia – Tobacco Plain Packaging (P) at 153–157 paras [7.75– 7.88]

• 7.76. As observed by the Appellate Body, it is now well established that the WTO Agreement is a "Single Undertaking", such that WTO obligations are generally cumulative and Members must comply with all of them simultaneously. This is expressed in Article II:2 of the WTO Agreement, which provides that:

The agreements and associated legal instruments included in Annexes 1, 2 and 3 (hereinafter referred to as "Multilateral Trade Agreements") are integral parts of this Agreement, binding on all Members.

• 7.77. In the words of the Appellate Body, Article II:2 of the WTO Agreement

"expressly manifests the intention of the Uruguay Round negotiators that the provisions of the WTO Agreement and the Multilateral Trade Agreements included in its Annexes 1, 2 and 3 must be read as a whole".

Thus,

"an appropriate reading of this 'inseparable package of rights and disciplines' must, accordingly, be one that gives meaning to all the relevant provisions of these two equally binding agreements".

As the Appellate Body pointed out,

"[i]t is important to understand that the WTO Agreement is one treaty" and the different agreements annexed to it "are integral parts of that treaty and are equally binding on all Members pursuant to Article II:2 of the WTO Agreement".

• 7.78. This cumulative and concurrent application of the WTO covered agreements was confirmed by the Appellate Body in Canada – Periodicals in relation to the GATT 1994 (trade in goods) and the GATS (trade in services), which appear under Annexes 1A and 1B of the WTO Agreement, respectively. The Appellate Body stated, in this regard, that "[t]he entry into force of the GATS ... does not diminish the scope of application of the GATT 1994." The Appellate Body explicitly agreed with the Panel's statement that: "The ordinary meaning of the texts of GATT 1994 and GATS as well as Article II:2 of the WTO Agreement, taken together, indicates that obligations under GATT 1994 and GATS can co-exist and that one does not override the other." As expressed by the Appellate Body, the potential overlap in scope of application between the GATT and GATS depends ultimately on the measure at issue:
• Given the respective scope of application of the two agreements, they may or may not overlap, depending on the nature of the measures at issue. Certain measures could be found to fall exclusively within the scope of the GATT 1994, when they affect trade in goods as goods. Certain measures could be found to fall exclusively within the scope of the GATS, when they affect the supply of services as services. There is yet a third category of measures that could be found to fall within the scope of both the GATT 1994 and the GATS. These are measures that involve a service relating to a particular good or a service supplied in conjunction with a particular good. In all such cases in this third category, the measure in question could be scrutinized under both the GATT 1994 and the GATS. However, while the same measure could be scrutinized under both agreements, the specific aspects of that measure examined under each agreement could be different.
• 7.79. These elements make clear, in our view, that the fact that the covered agreements may overlap in scope does not imply that the scope of application of each agreement should be diminished or otherwise modified. Rather, the various covered agreements co-exist and apply cumulatively, and it is possible, therefore, for a measure to be simultaneously covered by the disciplines of one or more covered agreements. This is also consistent with the well-established tenet of treaty interpretation that, "[i]n light of the interpretive principle of effectiveness, it is the duty of any treaty interpreter to 'read all applicable provisions of a treaty in a way that gives meaning to all of them, harmoniously.'" Further, as observed by the panel in Indonesia – Autos, "in public international law there is a presumption against conflict", and "[t]his presumption is especially relevant in the WTO context since all WTO agreements ... were negotiated at the same time, by the same Members and in the same forum."
• 7.80. We therefore see no basis to assume that, as a matter of principle, measures affecting the use of IP, and thus potentially covered by the TRIPS Agreement, could not also be covered by relevant provisions of the TBT Agreement, to the extent that they would also fall within the scope of application of these provisions.