On 15 May the WTO's Appellate Body issued its report in the case "European Communities and Certain Member States - Measures Affecting Trade in Large Civil Aircraft - Recourse to Article 21.5 of the DSU" (DS316)
European Communities and Certain Member States - Measures Affecting Trade in Large Civil Aircraft - Recourse to article 21.5 of the DSU by the United States - Communication from the Appellate Body
EC AND CERTAIN MEMBER STATES - LARGE CIVIL AIRCRAFT1 - (DS316)
WTO Dispute Settlement: One-Page Case Summaries
1. MEASURE AND PRODUCT AT ISSUE
. Measure at issue: Subsidies allegedly granted by the European Communities and certain EC member States to
Airbus large civil aircraft, including (i) "Launch Aid"/"Member State Financing" (LA/MSF) contracts; (ii) European Investment Bank loans; (iii) infrastructure-related measures; (iv) corporate restructuring measures (debt forgiveness, equity infusions and grants); and (v) research and development funding.
. Product at issue: Large civil aircraft developed, produced and sold by Airbus.
2. SUMMARY OF KEY PANEL/AB FINDINGS
ASCM Art. 3.1(a) (prohibited subsidies - export subsidies): The Appellate Body found that a subsidy is de facto export contingent within the meaning of Art. 3.1(a) and footnote 4 if the granting of the subsidy "is geared to induce the promotion of future export performance by the recipient". This standard cannot be met simply by showing that anticipated exportation is the reason for granting the subsidy. Rather, the satisfaction of the standard must be assessed by examining the measure granting the subsidy and the facts surrounding the granting of the subsidy, including the design, structure, and modalities of operation of the measure. The Appellate Body, having reversed the Panel's legal standard, was unable to complete the analysis as to whether the challenged LA/MSF measures were de facto export contingent.
ASCM Arts. 5(c) and 6.3 (adverse effects - serious prejudice (displacement and lost sales): The Appellate Body upheld, although narrower in scope, the Panel's finding that the LA/MSF measures and certain non-LA/MSF measures, found to constitute specific subsidies caused serious prejudice to the interests of the United States within the meaning of Art. 5(c). In reaching this conclusion, the Appellate Body clarified that a panel was not permitted to simply rely on the complaining Member's identification of a product, but was required under Art. 6.3 to make an independent product market determination to ascertain the specific products that compete in the same market.
ASCM Art. 5(a) (injury/threat of injury): The Panel found that the United States had failed to demonstrate material injury or threat of material injury to the United States LCA industry, and therefore rejected a claim under Art. 5(a).
ACSM Art. 7.8 (remedies - "to remove adverse effects or withdraw the subsidy"): The Appellate Body stated that to the extent it upheld the Panel's findings with respect to actionable subsidies that caused adverse effects or such findings were not been appealed, the Panel's recommendation pursuant to Art. 7.8 stands. Art. 7.8 provides in relevant part that "the Member granting each subsidy found to have resulted in such adverse effects, 'take appropriate steps to remove the adverse effects or ... withdraw the subsidy'".
3. OTHER ISSUES2
. Additional procedures to protect confidential information: At the joint request of the parties, the Appellate Body, for the first time in an appellate proceeding, adopted additional procedures to protect the business confidential information and highly sensitive business information submitted in the proceedings. In submitting the request, the parties argued that disclosure of such information could be "severely prejudicial" to the originators of the information, that is, to the LCA manufacturers at the heart of the dispute and possibly to the manufacturers' customers and suppliers.
1 European Communities - Measures Affecting Trade in Large Civil Aircraft
2 Other issues addressed: temporal scope of the ASCM; extinguishment of past subsidies through partial privatizations and other transactions; withdrawal of past subsidies through cash extractions; pass-through of past subsidies to current producer; information-gathering procedure and adverse inferences (ASCM Annex V); existence of a financial contribution (ASCM Art. 1.1(a)(1)); existence of a benefit (ASCM Art. 1.1(b)); specificity of subsidies (ASCM Art. 2); enhanced third party rights (DSU Art. 10); open Panel meetings and Appellate Body hearings; measures allegedly not subject to consultations; measure not yet in existence at time of panel establishment; failure to identify measures in the panel request (DSU Art. 6.2); non retroactivity of treaties (VCLT Art. 28); relevance of other rules of international law to the interpretation and application of the WTO Agreement (VCLT Art. 31(3)(c)); status of EC member States as respondents; appeals on issues involving application of the law to the facts; Member's freedom to formulate its complaint; objective assessment of the matter (DSU Art. 11).
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