Conflicts in International Trade Law

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1 EUROPEAN MONOGRAPHS Regulation of Subsidies and State Aids in WTO and EC Law Conflicts in International Trade Law Gustavo E. Luengo Hernandez de Madrid KLUWER LAW INTERNATIONAL

2 Preface Acknowledgements About the Author Abbreviations xj x xxi xxiii xxv Part I: Introduction 1 Chapter 1: Preliminary Remarks 3 I. Subsidies in the International Context 3 A. What is a Subsidy? 5 B. Types of Subsidies 8 1. Export Subsidies 8 2. Domestic Subsidies 9 C. Conclusion 9 II. Scope of this Work: Subsidies in the WTO and the EC 10 Chapter 2: Economic Analysis of Subsidies 13 I. II. Introduction Analysis of International Trade A. Theory of Comparative Advantage B. Theory of Proportion in Factors of Production C. Economies of Scale D. Imperfect Competition E. Conclusion vii

3 viii Table of Contents III. Effects of Subsidies on International Trade 20 A. Effects of Export Subsidies 22 B. Effects of Domestic Subsidies 26 C. Conclusion 27 IV. Effects of the Adoption of Countervailing Duties 28 V. Concluding Remarks 30 Part II: The Regulation of Subsidies in the WTO 31 Introduction to Part II 33 Chapter 3: Evolution of the Regulation of Subsidies in International Trade: From the GATT to the WTO 35 I. Introduction 35 II. Subsidies in the Havana Charter 36 A. Negotiations for the Creation of the ITO: Origins of the GATT 37 B. Regulation of Subsidies in the HC 39 C. Conclusions 41 III. Subsidies in the GATT ( ) 41 A. The GATT of GATT Negotiations Obligations on Subsidies in the GATT The Definition of 'Subsidy' in the GATT of Conclusion 47 B. The Reforms of Export Subsidies 47 a) Non-Primary Products 48 b) Primary Products Revision Clause Conclusion 51 C. The Situation after the Reform of Notification of Subsidies Export Subsidies for Primary Products Export Subsidies for Non-Primary Products The Definition of Subsidy after the Reform of a) Price Support Systems 59 b) Subsidies Financed by a Non-Governmental Levy 60 c) Multiple Exchange Rates 60 d) Purpose of the Subsidy 61 e) Other Cases Conclusions 62

4 ix IV. The Subsidies Code from the Tokyo Round of A. Negotiations During the Tokyo Round ( ) 63 B. The Tokyo Round Subsidies Code of Track I Countervailing Duties Track II Obligations on Subsidies 68 C. The Situation after the Reform of The Definition of'subsidy' after the Tokyo Round of Situation after the Tokyo Round Relevant Cases after the Reform of a) Export Subsidies for Primary Products 79 b) Export Subsidies for Non-Primary Products 81 c) Countervailing Duties 82 D. Conclusions 83 V. Negotiations in the Uruguay Round ( ) 84 A. The Negotiations on Subsidies in the Uruguay Round Definition of'subsidy' 85 a) The Position of the US 86 b) The Position of the EC The 'Traffic Light Approach' Other Important Issues: Trade Remedies, Sub-National Entities and Developing Countries Negotiations on Primary Products 88 B. Proposals Made during the Negotiations The Cartland Draft The Dunkel Draft The De Zeeuw Draft 92 C. Conclusions 92 VI. The Final Result: Agreements on Subsidies in the WTO 93 VII. Concluding Remarks 95 Chapter 4: The Regulation of Subsidies in the Agreement on Subsidies and Countervailing Measures 97 I. Introduction 97 II. Definition of'subsidy': Article 1 ASCM 102 A. 1st Element: 1st Alternative Financial Contribution Government or Other Public Body Territoriality of the Measure Exhaustive List of Cases Considered to be Financial Contributions 107 a) Direct Transfer of Funds or Potential Transfers of Funds or Liabilities 108 b) Foregoing of Government Revenue That Would Be Collected Otherwise 108 c) Provision of Goods or Services 110

5 d) Payments to a Funding Mechanism or Entrustment/Direction of Private Bodies 111 B. 1st Element: 2nd Alternative Income or Price Support 119 C. 2nd Element: Benefit 123 D. Conclusions 128 III. Specificity of the Measure: Article 2 of the ASCM 129 A. The Specificity Test 'De Jure' Specificity 'De Facto' Contingency 138 B. Specificity of Regional Subsidies 139 C. Specificity per se 140 D. Burden of Proof of Specificity 140 E. Conclusions 141 IV. Prohibited Subsidies: Article 3 of the ASCM 142 A. Export Subsidies 'De Jure' Contingency 'De Facto' Contingency 145 B. The Illustrative List of Export Subsidies 148 C. Domestic Content Subsidies 154 D. Conclusions 157 V. Non-Actionable Subsidies: Article 8 of the ASCM 158 A. Assistance for R&D Activities 159 B. Assistance to Disadvantaged Regions 160 C. Assistance for Adapting Infrastructures to New Environmental Requirements 161 D. Notification and the Opportunity for Appeal 162 E. Other Non-Actionable Subsidies 163 F. Conclusions 165 VI. Actionable Subsidies: Articles 5 and 6 of the ASCM 166 A. Injury to the Domestic Industry of Another Member 166 B. Nullification or Impairment of GATT Benefits 168 C. Serious Prejudice Cases Where a Serious Prejudice is Presumed (Subsidies Prohibited Prima Faciej Cases Where Serious Prejudice May Exist (Prohibited Subsidies) 172 a) Displacement or Impediment of Imports 172 b) Displacement or Impediment of Exports 173 c) Price Undercutting by the Subsidized Product 174 d) Increase in the World Market Share of the Subsidized Primary Product 177 D. Conclusions 177 VII. Remedies: Disputes and Countervailing Duties 178 A. Multilateral Forum: Disputes before the DSB Procedures for the Different Categories of Subsidies 180

6 xi a) Red Category: Prohibited Subsidies (Article 4 of the ASCM) 181 b) Amber Category: Actionable Subsidies (Article 7 of the ASCM) 182 c) Green Category: Non-Actionable Subsidies (Article 9 of the ASCM) Results of These Procedures: Withdrawal, Repayment or Removal of the Effects Conclusion 187 B. National Forum: Countervailing Duties Substantive Requirements 189 a) Existence of a Specific Subsidy 189 b) Material Injury to a Domestic Industry 191 c) Causal Link Procedural Requirements 193 a) Initiation and Consultation 193 b) Calculating the Amount of Countervailing Duties 194 c) Duration and Termination of Countervailing Duties 197 d) Possibilities for Judicial Review of the Countervailing Duties 197 C. Conclusions 198 VIII. Notification and Monitoring of Subsidies: The Role of the SCM Committee 199 IX. Exceptions for Developing Countries: Article 27 of the ASCM 201 A. Prohibited Subsidies 202 B. Actionable Subsidies 202 C. Countervailing Duties 204 D. Conclusions 204 X. Concluding Remarks 204 Chapter 5: The Regulation of Subsidies in the Agreement on Agriculture 207 I. Introduction 207 II. The Agreement on Agriculture 208 A. Commitments on Domestic Support Amber Basket Blue Basket Green Basket 214 a) General Services 215 b) Food Security Industry 215 c) Domestic Food Aid 215 d) Direct Payments to Producers Conclusion 216

7 xii Table of Contents III. B. Commitments on Export Subsidies Export Subsidies for Products Subject to Reduction Commitments 218 a) List of Export Subsidies (Article 9.1. of the AoA) Direct Subsidies Export Sales under the Domestic Market Price Export Payments for Agricultural Products Subsidies to Reduce Costs of Marketing or Transporting Exports Upstream Subsidies 225 b) Other Export Subsidies (Article 10.1 of the AoA) 225 c) Conclusion Export Subsidies for Products Not Subject to Reduction Commitments Conclusion 230 C. Conclusions 230 The Application of the ASCM to Basic Agricultural Products: The Relationship Between the ASCM and the AoA 231 A. Definition of 'Subsidy' in the AoA 231 B. Specificity in the AoA 234 C. Conclusions 235 IV. Trade Remedies: The Expiration of the Peace Clause 235 A. The Peace Clause: Exceptions to Article 13 of the AoA Exceptions for Domestic Support Exceptions for Export Subsidies Expiration of the Peace Clause: Application of the ASCM 239 B. Lack of Conformity of a Measure With the AoA: Withdrawal of the Subsidy (Article 4.7 of the ASCM) 240 C. Conclusions 242 V. Concluding Remarks 242 Chapter 6: Subsidies in the WTO: The 'Foreign Sales Corporations' Case 245 I. Introduction 245 II. The DISC Case 249 A. Group of Experts in DISC 251 B. Group of Experts in the European Cases 252 C. The Aftermath of These Cases 254 D. Conclusions 255 III. The US-FSC Case 256 A. The FSC-First Panel and AB Reports Measures in Relation to the FSCs 257

8 xiii 2. First Panel Report 260 a) EC Arguments 261 b) US Arguments 262 c) Conclusions of the Panel First AB Report Conclusions 270 B. The ETI-Second Panel and AB Reports Measures Introduced by the ETI Second Panel Report Second AB Report Conclusions 277 C. Developments of the FSCIETI Case 277 IV. Conclusions from the FSC Case 280 Part III: EC Rules on State Aids 283 Introduction to Part III 285 Chapter 7: Evolution of the State Aid Rules in the EC 287 I. Introduction 287 II. State Aids in the History of the EC 291 A. Rules on State Aids: From ECSC to EEC 282 B. Evolution of the Rules on State Aids After the EEC Treaty 293 C. Conclusions 296 III. State Aids Nowadays: Statistics 296 IV. Concluding Remarks 303 Chapter 8: The Notion of 'State Aid': Article 87.1 of the EC Treaty 305 I. Introduction 305 II. The Notion of 'Aid in Any Form' 307 A. Examples of Advantages Granted by the State Participation in the Capital of Enterprises Loans Government Guarantees Sale of Public Goods Acquisition of Products or Services by the State Provision of Public Services by the State Conclusions 314 B. Intention of the Government When Granting the Measure 314 C. Indirect Advantages 315 D. Form of the Aid 315

9 xiv Table of Contents III. Granted by a Member State or through State Resources 315 A. The Meaning of'state' 316 B. Notion of 'State Resources' 318 C. Aids 'Granted by the Member States or through State Resources' 321 D. Conclusions 327 IV. Distortion in Competition: Selectivity 327 A. Distortion in Competition 328 B. Selectivity of the Measure 330 C. Conclusions 336 V. Effect on Trade between Member States 336 VI. Concluding Remarks 338 Chapter 9: State Aids Compatible with the Common Market 341 I. Introduction 341 II. State Aids per se Compatible with the Common Market 342 A. Aids with Social Character 343 B. Aids to Repair Damages Caused by Natural Disasters 344 C. Aids to Certain Regions of the Federal Republic of Germany 344 D. Conclusions 345 III. State Aids Which May be Compatible with the Common Market 346 A. Aids to Improve the Development of Certain Regions Where the Standards of Living are Abnormally Low or Where There is a Serious Unemployment Situation 350 B. Aids for Projects of Common European Interest or to Remedy a Serious Disturbance in the Economy of a Member State 353 C. Aids to Promote the Development of Certain Activities or Regions: Sectoral, Horizontal and Regional Aids Regional Aids in Article 87.3(c) of the EC Treaty Sectoral Aids 359 a) Transport 361 b) Motor Vehicles 363 c) Steel and Coal Horizontal Aids 365 a) Aids for the Protection of the Environment 365 b) Aids for R&D 366 c) Aids for Employment and Training 368 d) Aid for SMEs 370 e) Aids for Rescuing and Restructuring Companies in Crisis 371

10 xv D. Aids to Promote Culture 374 E. Aids Authorized by the Council 375 IV. Conclusions 377 Chapter 10: Procedural Issues: Control of State Aids in the EC and Recovery of State Aids 379 I. Introduction 379 II. Procedures to Control State Aids in the EC 380 A. State Aid Control by the European Commission Notified Aids Non-Notified (Unlawful) Aids Control of Existing Aids 389 B. Appeals before the CFI/ECJ on State Aids Commission Decisions Subject to Appeal Types of Actions and Locus Standi Review by the ECJ Consequences of the Review 396 C. Role of National Courts in the Control of State Aids 396 D. Conclusions 400 III. Remedies Recovery of State Aids 401 A. Powers of the European Commission in State Aids: Suspension, Modification or Recovery 401 B. Exceptions on the Recovery of State Aids 403 C. Calculation of the Amount of Aid to be Recovered 404 D. Subjects Obliged to Return the Aid 406 E. Conclusions 406 IV. Concluding Remarks 407 Chapter 11: Agricultural Subsidies in the EC 409 I. Introduction 409 II. State Aids to Agricultural Products 410 III. The CAP: Agricultural Subsidies in the EC 413 A. The CAP in the EC Treaty: Objectives 414 B. CMOs: Types of Subsidies for Agricultural Goods in the EC Price Support through Regulation of the Markets Income Support: Production Subsidies Storage Systems and Compensation for Remnants Common Mechanisms for the Stabilization of Imports and Exports CAP Funding: EAGGF 418 C. The Reform of the CAP 420 IV. Concluding Remarks 423

11 xvi Table of Contents Part IV: Comparative Analysis of the Regulation of Subsidies in the WTO and the EC: Consequences 425 Introduction to Part IV 427 Chapter 12: Comparison of the WTO and EC Rules on Subsidies and State Aids 429 I. Introduction 429 II. Systemic Approach to Disciplining Subsidies 430 A. Analysis of National Measures in the WTO Framework of the ASCM Framework of the AoA 433 B. Analysis of Government Measures in the EC 435 C. Notification and Control of Subsidies and State Aids 437 D. Conclusions 439 III. Definition of 'Subsidy' versus Notion of 'State Aid' 440 A. Origin of the Measure: Government versus State 440 B. Benefit versus Aid 442 C. Nature of the Resources Used FSC versus Sloman Neptun Canada Aircraft and US Export Restraints versus PreussenElektra Price Fixing Systems 449 D. Conclusions 449 IV. Specificity versus Selectivity 450 A. The Term 'Certain' 451 B. Undertakings and Industries/Productions 452 C. Measures Granted by Sub-National Entities 454 D. Conclusions 455 V. Prohibitions and Exceptions in the WTO and the EC 455 A. Red Category Prohibited Subsidies and Aids Incompatible with the Common Market Export Subsidies Import Substitution/Domestic Content Subsidies Conclusion 463 B. Green Category Permitted Subsidies and Aids Compatible with the Common Market Aid for R&D Aid for Underdeveloped Regions Aid for the Adaptation of Existing Facilities to New Environmental Requirements Conclusion 469 C. Amber Category Actionable Subsidies and Aids Which May be Compatible with the Common Market The Adverse Effects Standard 470

12 xvii VI. 2. The Compensatory Justification Standard (Community Interest) Comparison of Both Standards 473 D. Conclusions 474 Remedies: Withdrawal of the Subsidy versus Recovery of the Aid 475 A. Remedies at the Multilateral Level: Withdrawal of Prohibited Subsidies versus Recovery of Unlawful Aid 476 B. Coercive Means of Enforcement 478 C. Remedies at the National Level: The Role of Individuals 480 D. Conclusions 481 VII. Reasons for the Differences between the WTO and the EC 482 A. Scope and Systemic Approach 483 B. Definitions of 'Subsidy' and 'State Aid' 484 C. Prohibited and Permitted Government Measures 486 D. Control and Remedies 487 E. Conclusions 489 VIII. Concluding Remarks 490 Chapter 13: Conformity of the EC State Aid Rules With the WTO: Suggestions 493 I. Introduction 493 II. Conformity of State Aids With the WTO Rules on Subsidies: Conflicts 495 A. Scope of the Regulation: Subsidy versus State Aid 495 B. Objectives of the Regulation: Adverse Effects on Trade versus Community Objectives 496 III. C. Conclusion: Lack of Conformity 499 A Different Case: Conformity of Agricultural Subsidies in the EC with the AoA 499 A. Domestic Support 500 B. Export Subsidies 501 C. Other Issues: Expiration of the Peace Clause 502 D. The AoA in the EC Legal System 502 E. Negotiations on Agriculture in the Doha Round 502 F. Conclusions 503 IV. Consequences of the Lack of Conformity 504 A. Consequences for the EC and the Member State Government Measure = Subsidy * State Aid 505 a) Multilateral Level WTO 506 (i) Distribution of Competences with Respect to the WTO Agreements 506 (ii) The Dispute Settlement System in Practice: Representation on Behalf of the EC 509

13 xviii Table of Contents (iii) Retaliatory Actions: The Requirement of Uniformity in the Action 511 (iv) Conclusions: Joint Responsibility of the EC and the Member State 512 (v) Consequences for the EC and the Member State Derived from the ASCM 513 b) Community Level EC 513 c) Conclusions Government Measure = Subsidy = Authorized State Aid 516 a) Multilateral Level WTO 516 b) Community Level EC 519 c) Conclusions 520 B. Consequences for Individuals Government Measure = Subsidy = Authorized State Aid Government Measure = Subsidy * State Aid Conclusion 527 C. Conclusions 527 V. Suggestions: Ways to Improve the Conformity of the EC Rules on State Aids with the WTO 528 A. Modification of the Notion of 'State Aid' 529 B. The Community Interest 'Plus' Standard 531 C. Indirect Effect of the Provisions of the ASCM 532 D. Conclusions 532 VI. Concluding Remarks 533 Chapter 14: Final Remarks 535 I. Introduction 535 II. Main Conclusions of This Work 536 III. Subsidies in an International Context: Reflections and Room for Improvement 548 IV. Conclusion: A Look into the Future 555 Table of Cases 559 I. GATT/WTO 559 A. GATT 559 B. WTO 560 II. EC 563 A. ECJ 563 B. CFI 567 Bibliography 569 Index 581

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