Judecata Airbus - Boeing

WORLD TRADE

ORGANIZATION

WT/DS353/AB/R 12 March 2012

(12-1313)

Original: English

UNITED STATES MEASURES AFFECTING TRADE IN LARGE CIVIL AIRCRAFT

(SECOND COMPLAINT)

AB-2011-3

Report of the Appellate Body

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I. Introduction ................................................................................................................................. 1 A. The European Communities' Claims before the Panel .................................................. 6 B. The Panel's Findings ..................................................................................................... 8 C. Appellate Proceedings ................................................................................................. 15

II. Arguments of the Participants and the Third Participants ........................................................ 20 A. Claims of Error by the European Union Appellant .................................................. 20

1. Annex V to the SCM Agreement ..................................................................... 20 2. Financial Contribution Scope of Article 1.1(a)(1) of the

SCM Agreement .............................................................................................. 24 3. Specificity Allocation of Patent Rights ........................................................ 28 4. Adverse Effects ............................................................................................... 31

(a) Collective assessment of the aeronautics R&D subsidies and the B&O tax rate reductions and their effects .................................... 31

(b) Collective assessment of the tied tax subsidies and the remaining subsidies and their effects ................................................. 35

5. Article 11 of the DSU ..................................................................................... 37 B. Arguments of the United States Appellee .................................................................. 38

1. Annex V to the SCM Agreement ..................................................................... 38 2. Financial Contribution Scope of Article 1.1(a)(1) of the

SCM Agreement .............................................................................................. 44 3. Specificity Allocation of Patent Rights ........................................................ 48 4. Adverse Effects ............................................................................................... 51

(a) Collective assessment of the aeronautics R&D subsidies and the B&O tax rate reductions and their effects .................................... 51

(b) Collective assessment of the tied tax subsidies and the remaining subsidies and their effects ................................................. 55

5. Article 11 of the DSU ..................................................................................... 57 C. Claims of Error by the United States Other Appellant ............................................. 59

1. NASA Procurement Contracts and USDOD Assistance Instruments ............ 59 (a) Financial contribution Application of the "purchase of

services" test ...................................................................................... 59 (b) Benefit................................................................................................ 66

2. Washington State B&O Tax Rate Reduction .................................................. 71 (a) Financial contribution Revenue foregone ....................................... 71 (b) Specificity Article 2.1(a) of the SCM Agreement ........................... 75

3. City of Wichita Industrial Revenue Bonds (IRBs) Specificity .................... 77 4. Adverse Effects ............................................................................................... 80

(a) Technology effects of the aeronautics R&D subsidies ...................... 80 (b) Price effects of the tied tax subsidies ................................................. 94

D. Arguments of the European Union Appellee .......................................................... 103 1. NASA Procurement Contracts and USDOD Assistance Instruments .......... 103

(a) Financial contribution Application of the "purchase of services" test .................................................................................... 103

(b) Benefit.............................................................................................. 110

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2. Washington State B&O Tax Rate Reduction ................................................ 117 (a) Financial contribution Revenue foregone ..................................... 117 (b) Specificity Article 2.1(a) of the SCM Agreement ......................... 119

3. City of Wichita Industrial Revenue Bonds (IRBs) Specificity .................. 121 4. Adverse Effects ............................................................................................. 124

(a) Technology effects of the aeronautics R&D subsidies .................... 124 (b) Price effects of the tied tax subsidies ............................................... 133

E. Arguments of the Third Participants .......................................................................... 145 1. Australia ........................................................................................................ 145

(a) Financial contribution ...................................................................... 145 (b) Specificity ........................................................................................ 149 (c) Adverse effects ................................................................................ 150

2. Brazil ............................................................................................................. 153 (a) Annex V to the SCM Agreement ...................................................... 153 (b) Financial contribution ...................................................................... 154 (c) Specificity ........................................................................................ 155 (d) Adverse effects ................................................................................ 155

3. Canada .......................................................................................................... 158 (a) Annex V to the SCM Agreement ...................................................... 158 (b) Financial contribution ...................................................................... 158 (c) Specificity ........................................................................................ 159 (d) Adverse effects ................................................................................ 160

4. China ............................................................................................................. 162 (a) Annex V to the SCM Agreement ...................................................... 162 (b) Specificity ........................................................................................ 163 (c) Adverse effects ................................................................................ 164

5. Japan ............................................................................................................. 164 (a) Specificity ........................................................................................ 164 (b) Adverse effects ................................................................................ 165

6. Korea ............................................................................................................. 170 (a) Annex V to the SCM Agreement ...................................................... 170 (b) Specificity ........................................................................................ 171 (c) Adverse effects ................................................................................ 171

III. Issues Raised in This Appeal .................................................................................................. 172 IV. The Measures at Issue ............................................................................................................. 177

A. Introduction ............................................................................................................... 177 B. US Federal Government Measures ............................................................................ 177

1. Aeronautics R&D Measures ......................................................................... 178 (a) NASA .............................................................................................. 178 (b) USDOD............................................................................................ 180

2. Allocation of Patent Rights ........................................................................... 182 3. FSC/ETI and Successor Legislation ............................................................. 185

(a) Provisions of the US Internal Revenue Code relating to FSCs ....... 186

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(b) FSC Repeal and Extraterritorial Income Exclusion Act of 2000 ..... 187 (c) American Jobs Creation Act of 2004 ............................................... 187 (d) Tax Increase Prevention and Reconciliation Act of 2005................ 188

C. State and Local Measures .......................................................................................... 189 1. State of Washington ...................................................................................... 189

(a) Measures under House Bill 2294 ..................................................... 189 (b) City of Everett local B&O tax rate reduction .................................. 192 (c) Project Olympus Master Site Agreement ........................................ 193

2. Wichita (Kansas) Industrial Revenue Bonds ................................................ 194 3. State of Illinois .............................................................................................. 196

V. Procedures under Annex V to the SCM Agreement ................................................................ 198 A. Introduction ............................................................................................................... 198 B. The Panel's Preliminary Ruling ................................................................................. 198 C. Overview of the Claims and Arguments on Appeal ................................................... 201 D. Evaluation of the European Union's Claim of Error on Appeal ................................ 204

1. The European Union's Request for Reversal of the Panel's Findings in Paragraph 7.22 of the Panel Report .............................................................. 204

2. The European Union's Request for Completion of the Analysis .................. 208 (a) Interpretation of relevant provisions of the SCM Agreement

and the DSU ..................................................................................... 208 (b) The European Union's remaining requests for completion of

the analysis ....................................................................................... 221 (c) The European Union's additional requests ....................................... 227

E. Conclusion ................................................................................................................. 228 VI. NASA Procurement Contracts and USDOD Assistance Instruments ..................................... 229

A. Financial Contribution .............................................................................................. 229 1. Introduction ................................................................................................... 229 2. The Panel's Findings ..................................................................................... 230

(a) The Panel's interpretation of Article 1.1(a)(1)(i) of the SCM Agreement ............................................................................... 231

(b) The Panel's assessment of the NASA measures .............................. 234 (c) The Panel's assessment of the USDOD measures ........................... 238

3. The Panel's General Approach ...................................................................... 242 4. What is the Proper Characterization of the NASA/USDOD Measures at

Issue? ............................................................................................................ 246 (a) NASA procurement contracts .......................................................... 246 (b) USDOD assistance instruments ....................................................... 250 (c) The Panel's description of the transactions in its analysis of

serious prejudice .............................................................................. 252 (d) Summary of the main characteristics of the measures ..................... 253

5. The Types of Financial Contributions Covered by Article 1.1(a)(1) of the SCM Agreement ...................................................................................... 254

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6. Do the NASA and USDOD Measures Raised on Appeal Constitute Financial Contributions within the Meaning of Article 1.1(a)(1) of the SCM Agreement? .......................................................................................... 258

B. Benefit ........................................................................................................................ 260 1. The Panel's Findings ..................................................................................... 260

(a) NASA .............................................................................................. 260 (b) USDOD............................................................................................ 261

2. Did the Panel Err in Determining Benefit? ................................................... 263 C. Scope of the Panel's Benefit Findings as regards the NASA Measures ..................... 278

1. The Panel's Findings ..................................................................................... 279 2. Is the United States' Claim Properly within the Scope of This Appeal? ....... 283 3. Did the Panel Err under Article 1.1(b) of the SCM Agreement? ................... 286

D. Article 11 of the DSU Amount of USDOD R&D Funding Potentially Relevant to LCA ......................................................................................................... 290 1. The Panel's Findings ..................................................................................... 291 2. Did the Panel Make an Objective Assessment of the Matter under

Article 11 of the DSU in Making the Challenged Statement? ...................... 293 VII. NASA/USDOD Allocation of Patent Rights Specificity ..................................................... 300

A. Introduction ............................................................................................................... 300 B. The Panel's Findings ................................................................................................. 303 C. The Panel's Arguendo Approach ............................................................................... 306 D. Did the Panel Err in the Interpretation of Article 2.1(a) of the

SCM Agreement? ....................................................................................................... 308 E. Did the Panel Err in the Application of Article 2.1(a) of the

SCM Agreement? ....................................................................................................... 313 F. Did the Panel Err by Failing to Address the European Communities'

Allegation of De Facto Specificity under Article 2.1(c)? ........................................... 327 VIII. Washington State Business and Occupation (B&O) Tax Rate Reduction .............................. 331

A. Financial Contribution Revenue Foregone ............................................................ 331 1. The Panel's Findings ..................................................................................... 331 2. When Does a Government Forego Revenue Otherwise Due? ...................... 334 3. Assessment of the Panel's Analysis under Article 1.1(a)(1)(ii) of the

SCM Agreement ............................................................................................ 338 B. Specificity ................................................................................................................... 344

1. The Panel's Findings ..................................................................................... 345 2. Assessment of the Panel's Analysis under Article 2.1(a) of the

SCM Agreement ............................................................................................ 347 IX. City of Wichita Industrial Revenue Bonds (IRBs) Specificity ............................................ 355

A. Background ................................................................................................................ 355 B. The Panel's Findings ................................................................................................. 355 C. Assessment of the Panel's Analysis under Article 2.1(c) of the

SCM Agreement ......................................................................................................... 359 X. Adverse Effects ....................................................................................................................... 367

A. Introduction ............................................................................................................... 367

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1. Background Information ............................................................................... 371 (a) Relevant markets, the reference period, and the temporal

assessment of relevant market phenomena ...................................... 371 (b) Key aspects of the LCA industry ..................................................... 374

2. The Panel's Approach to Causation .............................................................. 378 3. The Panel's Analysis of "Technology Effects" and "Price Effects" .............. 382

(a) The Panel's analysis of the "technology effects" of the aeronautics R&D subsidies .............................................................. 382

(b) The Panel's analysis of the "price effects" of the subsidies ............. 384 4. Order of Analysis of the Issues on Appeal Relating to the Panel's

Serious Prejudice Findings ........................................................................... 385 B. Technology Effects ..................................................................................................... 385

1. Introduction ................................................................................................... 385 2. Background Information regarding the Boeing 787 ..................................... 387 3. The Panel's Analysis of the Effects of the Aeronautics R&D Subsidies

on Boeing ...................................................................................................... 389 4. The United States' Appeal............................................................................. 394 5. Specific Grounds of Appeal Raised by the United States ............................. 398

(a) Whether the Panel erred by "extrapolating findings" with respect to three NASA composites programmes to all of the R&D programmes ............................................................................ 398

(b) Whether the Panel erred by not finding that the NASA research was too far removed from the commercial technologies used on the 787 ........................................................... 405

(c) Whether the Panel erred in its appreciation of the role of Boeing and its suppliers in the development of the technologies used on the 787 ........................................................... 409

(d) Whether the Panel erred in its appreciation of the relevance of NASA's public dissemination of the results of the NASA R&D ..... 417

(e) Whether the Panel erred in its assessment of the magnitude of the NASA aeronautics R&D subsidies ............................................ 420

(f) Conclusion ....................................................................................... 422 6. The Panel's Counterfactual Analysis ............................................................ 423

(a) Introduction ...................................................................................... 423 (b) The Panel's counterfactual analysis: the first stage ......................... 428 (c) The Panel's counterfactual analysis: the second stage .................... 432

7. The Panel's Analysis of the Effects of the Aeronautics R&D Subsidies on Airbus ...................................................................................................... 434

8. The United States' Appeal relating to the Second Stage of the Panel's Analysis of the Technology Effects of the Aeronautics R&D Subsidies...... 438 (a) Significant lost sales ........................................................................ 439 (b) Threat of displacement and impedance............................................ 445 (c) Significant price suppression ........................................................... 454 (d) Conclusion ....................................................................................... 468

C. Article 11 of the DSU ................................................................................................. 469

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D. Price Effects ............................................................................................................... 478 1. Background on the 100-200 Seat and 300-400 Seat LCA Markets .............. 479

(a) 100-200 seat LCA market ................................................................ 480 (b) 300-400 seat LCA market ................................................................ 481

2. The European Communities' Price Effects Claim before the Panel.............. 481 3. The Panel's Analysis and Findings ............................................................... 485 4. Assessment of the Panel's Causation Analysis under Articles 5(c)

and 6.3(b) and (c) of the SCM Agreement .................................................... 492 (a) Whether the Panel conducted a proper causation analysis .............. 492 (b) Whether the Panel conducted a proper analysis of significant

price suppression, significant lost sales, and displacement and impedance ........................................................................................ 507

(c) Overall assessment of the Panel's analysis of the price effects of the tied tax subsidies .................................................................... 518

(d) Completion of the analysis .............................................................. 519 5. Conclusion .................................................................................................... 533

E. Collective Assessment of the Subsidies and Their Effects .......................................... 533 1. Introduction ................................................................................................... 533 2. Assessment of the European Union's Claims of Error on Appeal ................ 536

(a) Introduction ...................................................................................... 536 (b) Different approaches to collective assessment ................................ 537 (c) The approach taken by the Panel to a collective assessment of

the effects of the subsidies at issue .................................................. 543 (d) Whether the Panel erred in declining to assess collectively the

effects of the aeronautics R&D subsidies and the effects of the B&O tax rate reductions .................................................................. 546

(e) Whether the Panel erred in declining to assess collectively the effects of the tied tax subsidies and the effects of the remaining subsidies ........................................................................................... 555

3. Conclusion .................................................................................................... 568 XI. Findings and Conclusions ....................................................................................................... 569

ANNEX I Notification of an Appeal by the European Union

ANNEX II Notification of an Other Appeal by the United States

ANNEX III Procedural Ruling and Additional Procedures to Protect Sensitive Information

ANNEX IV Procedural Ruling and Additional Procedures on the Conduct of the Oral Hearing

ANNEX V HSBI Annex

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CASES CITED IN THIS REPORT

Short Title Full case title and citation

Australia Salmon Appellate Body Report, Australia Measures Affecting Importation of Salmon, WT/DS18/AB/R, adopted 6 November 1998, DSR 1998:VIII, 3327

Brazil Aircraft Appellate Body Report, Brazil Export Financing Programme for Aircraft, WT/DS46/AB/R, adopted 20 August 1999, DSR 1999:III, 1161

Brazil Aircraft Panel Report, Brazil Export Financing Programme for Aircraft, WT/DS46/R, adopted 20 August 1999, as modified by Appellate Body Report WT/DS46/AB/R, DSR 1999:III, 1221

Brazil Aircraft (Article 21.5 Canada)

Panel Report, Brazil Export Financing Programme for Aircraft Recourse by Canada to Article 21.5 of the DSU, WT/DS46/RW, adopted 4 August 2000, as modified by Appellate Body Report WT/DS46/AB/RW, DSR 2000:IX, 4093

Brazil Aircraft (Article 21.5 Canada II)

Panel Report, Brazil Export Financing Programme for Aircraft Second Recourse by Canada to Article 21.5 of the DSU, WT/DS46/RW/2, adopted 23 August 2001, DSR 2001:X, 5481

Brazil Retreaded Tyres Appellate Body Report, Brazil Measures Affecting Imports of Retreaded Tyres, WT/DS332/AB/R, adopted 17 December 2007, DSR 2007:IV, 1527

Canada Aircraft Appellate Body Report, Canada Measures Affecting the Export of Civilian Aircraft, WT/DS70/AB/R, adopted 20 August 1999, DSR 1999:III, 1377

Canada Autos Appellate Body Report, Canada Certain Measures Affecting the Automotive Industry, WT/DS139/AB/R, WT/DS142/AB/R, adopted 19 June 2000, DSR 2000:VI, 2985

Canada Dairy (Article 21.5 New Zealand and US)

Appellate Body Report, Canada Measures Affecting the Importation of Milk and the Exportation of Dairy Products Recourse to Article 21.5 of the DSU by New Zealand and the United States, WT/DS103/AB/RW, WT/DS113/AB/RW, adopted 18 December 2001, DSR 2001:XIII, 6829

Canada Wheat Exports and Grain Imports

Appellate Body Report, Canada Measures Relating to Exports of Wheat and Treatment of Imported Grain, WT/DS276/AB/R, adopted 27 September 2004, DSR 2004:VI, 2739

Chile Price Band System Appellate Body Report, Chile Price Band System and Safeguard Measures Relating to Certain Agricultural Products, WT/DS207/AB/R, adopted 23 October 2002, DSR 2002:VIII, 3045 (Corr.1, DSR 2006:XII, 5473)

Chile Price Band System (Article 21.5 Argentina)

Appellate Body Report, Chile Price Band System and Safeguard Measures Relating to Certain Agricultural Products Recourse to Article 21.5 of the DSU by Argentina, WT/DS207/AB/RW, adopted 22 May 2007, DSR 2007:II, 513

China Publications and Audiovisual Products

Appellate Body Report, China Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products, WT/DS363/AB/R, adopted 19 January 2010

EC Asbestos Appellate Body Report, European Communities Measures Affecting Asbestos and Asbestos-Containing Products, WT/DS135/AB/R, adopted 5 April 2001, DSR 2001:VII, 3243

EC Bananas III Appellate Body Report, European Communities Regime for the Importation, Sale and Distribution of Bananas, WT/DS27/AB/R, adopted 25 September 1997, DSR 1997:II, 591

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EC Bananas III (Article 21.5 Ecuador II) / EC Bananas III (Article 21.5 US)

Appellate Body Reports, European Communities Regime for the Importation, Sale and Distribution of Bananas Second Recourse to Article 21.5 of the DSU by Ecuador, WT/DS27/AB/RW2/ECU, adopted 11 December 2008, and Corr.1 / European Communities Regime for the Importation, Sale and Distribution of Bananas Recourse to Article 21.5 of the DSU by the United States, WT/DS27/AB/RW/USA and Corr.1, adopted 22 December 2008

EC Bed Linen Appellate Body Report, European Communities Anti-Dumping Duties on Imports of Cotton-Type Bed Linen from India, WT/DS141/AB/R, adopted 12 March 2001, DSR 2001:V, 2049

EC Bed Linen (Article 21.5 India)

Appellate Body Report, European Communities Anti-Dumping Duties on Imports of Cotton-Type Bed Linen from India Recourse to Article 21.5 of the DSU by India, WT/DS141/AB/RW, adopted 24 April 2003, DSR 2003:III, 965

EC Computer Equipment Appellate Body Report, European Communities Customs Classification of Certain Computer Equipment, WT/DS62/AB/R, WT/DS67/AB/R, WT/DS68/AB/R, adopted 22 June 1998, DSR 1998:V, 1851

EC Countervailing Measures on DRAM Chips

Panel Report, European Communities Countervailing Measures on Dynamic Random Access Memory Chips from Korea, WT/DS299/R, adopted 3 August 2005, DSR 2005:XVIII, 8671

EC Fasteners (China) Appellate Body Report, European Communities Definitive Anti-Dumping Measures on Certain Iron or Steel Fasteners from China, WT/DS397/AB/R, adopted 28 July 2011

EC Hormones Appellate Body Report, EC Measures Concerning Meat and Meat Products (Hormones), WT/DS26/AB/R, WT/DS48/AB/R, adopted 13 February 1998, DSR 1998:I, 135

EC Poultry Appellate Body Report, European Communities Measures Affecting the Importation of Certain Poultry Products, WT/DS69/AB/R, adopted 23 July 1998, DSR 1998:V, 2031

EC Sardines Appellate Body Report, European Communities Trade Description of Sardines, WT/DS231/AB/R, adopted 23 October 2002, DSR 2002:VIII, 3359

EC Selected Customs Matters Appellate Body Report, European Communities Selected Customs Matters, WT/DS315/AB/R, adopted 11 December 2006, DSR 2006:IX, 3791

EC Tube or Pipe Fittings Appellate Body Report, European Communities Anti-Dumping Duties on Malleable Cast Iron Tube or Pipe Fittings from Brazil, WT/DS219/AB/R, adopted 18 August 2003, DSR 2003:VI, 2613

EC and certain member States Large Civil Aircraft

Appellate Body Report, European Communities and Certain Member States Measures Affecting Trade in Large Civil Aircraft, WT/DS316/AB/R, adopted 1 June 2011

EC and certain member States Large Civil Aircraft

Panel Report, European Communities and Certain Member States Measures Affecting Trade in Large Civil Aircraft, WT/DS316/R, adopted 1 June 2011, as modified by Appellate Body Report, WT/DS316/AB/R

Guatemala Cement I Appellate Body Report, Guatemala Anti-Dumping Investigation Regarding Portland Cement from Mexico, WT/DS60/AB/R, adopted 25 November 1998, DSR 1998:IX, 3767

India Patents (US) Appellate Body Report, India Patent Protection for Pharmaceutical and Agricultural Chemical Products, WT/DS50/AB/R, adopted 16 January 1998, DSR 1998:I, 9

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India Quantitative Restrictions

Appellate Body Report, India Quantitative Restrictions on Imports of Agricultural, Textile and Industrial Products, WT/DS90/AB/R, adopted 22 September 1999, DSR 1999:IV, 1763

Indonesia Autos Panel Report, Indonesia Certain Measures Affecting the Automobile Industry, WT/DS54/R, WT/DS55/R, WT/DS59/R, WT/DS64/R and Corr.1 and 2, adopted 23 July 1998, and Corr. 3 and 4, DSR 1998:VI, 2201

Japan Agricultural Products II

Appellate Body Report, Japan Measures Affecting Agricultural Products, WT/DS76/AB/R, adopted 19 March 1999, DSR 1999:I, 277

Japan Alcoholic Beverages II

Appellate Body Report, Japan Taxes on Alcoholic Beverages, WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R, adopted 1 November 1996, DSR 1996:I, 97

Japan Apples Appellate Body Report, Japan Measures Affecting the Importation of Apples, WT/DS245/AB/R, adopted 10 December 2003, DSR 2003:IX, 4391

Japan DRAMs (Korea) Appellate Body Report, Japan Countervailing Duties on Dynamic Random Access Memories from Korea, WT/DS336/AB/R and Corr.1, adopted 17 December 2007, DSR 2007:VII, 2703

Japan DRAMs (Korea) Panel Report, Japan Countervailing Duties on Dynamic Random Access Memories from Korea, WT/DS336/R, adopted 17 December 2007, as modified by Appellate Body Report WT/DS336/AB/R, DSR 2007:VII, 2805

Korea Alcoholic Beverages Appellate Body Report, Korea Taxes on Alcoholic Beverages, WT/DS75/AB/R, WT/DS84/AB/R, adopted 17 February 1999, DSR 1999:I, 3

Korea Commercial Vessels Panel Report, Korea Measures Affecting Trade in Commercial Vessels, WT/DS273/R, adopted 11 April 2005, DSR 2005:VII, 2749

Korea Dairy Appellate Body Report, Korea Definitive Safeguard Measure on Imports of Certain Dairy Products, WT/DS98/AB/R, adopted 12 January 2000, DSR 2000:I, 3

Korea Various Measures on Beef

Appellate Body Report, Korea Measures Affecting Imports of Fresh, Chilled and Frozen Beef, WT/DS161/AB/R, WT/DS169/AB/R, adopted 10 January 2001, DSR 2001:I, 5

Mexico Anti-Dumping Measures on Rice

Appellate Body Report, Mexico Definitive Anti-Dumping Measures on Beef and Rice, Complaint with Respect to Rice, WT/DS295/AB/R, adopted 20 December 2005, DSR 2005:XXII, 10853

Mexico Corn Syrup (Article 21.5 US)

Appellate Body Report, Mexico Anti-Dumping Investigation of High Fructose Corn Syrup (HFCS) from the United States Recourse to Article 21.5 of the DSU by the United States, WT/DS132/AB/RW, adopted 21 November 2001, DSR 2001:XIII, 6675

Norway Trondheim Toll Ring GATT Panel Report, Panel on Norwegian Procurement of Toll Collection Equipment for the City of Trondheim, GPR.DS2/R, adopted 13 May 1992, BISD 40S/319

Thailand Cigarettes (Philippines)

Appellate Body Report, Thailand Customs and Fiscal Measures on Cigarettes from the Philippines, WT/DS371/AB/R, adopted 15 July 2011

US Anti-Dumping and Countervailing Duties (China)

Appellate Body Report, United States Definitive Anti-Dumping and Countervailing Duties on Certain Products from China, WT/DS379/AB/R, adopted 25 March 2011

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US Carbon Steel Appellate Body Report, United States Countervailing Duties on Certain Corrosion-Resistant Carbon Steel Flat Products from Germany, WT/DS213/AB/R and Corr.1, adopted 19 December 2002, DSR 2002:IX, 3779

US Continued Zeroing Appellate Body Report, United States Continued Existence and Application of Zeroing Methodology, WT/DS350/AB/R, adopted 19 February 2009

US Continued Zeroing Panel Report, United States Continued Existence and Application of Zeroing Methodology, WT/DS350/R, adopted 19 February 2009, as modified as Appellate Body Report WT/DS350/AB/R

US Countervailing Duty Investigation on DRAMS

Appellate Body Report, United States Countervailing Duty Investigation on Dynamic Random Access Memory Semiconductors (DRAMS) from Korea, WT/DS296/AB/R, adopted 20 July 2005, DSR 2005:XVI, 8131

US Countervailing Measures on Certain EC Products

Appellate Body Report, United States Countervailing Measures Concerning Certain Products from the European Communities, WT/DS212/AB/R, adopted 8 January 2003, DSR 2003:I, 5

US Export Restraints Panel Report, United States Measures Treating Exports Restraints as Subsidies, WT/DS194/R and Corr.2, adopted 23 August 2001, DSR 2001:XI, 5767

US FSC Appellate Body Report, United States Tax Treatment for "Foreign Sales Corporations", WT/DS108/AB/R, adopted 20 March 2000, DSR 2000:III, 1619

US FSC Panel Report, United States Tax Treatment for "Foreign Sales Corporations", WT/DS108/R, adopted 20 March 2000, as modified by Appellate Body Report WT/DS108/AB/R, DSR 2000:IV, 1675

US FSC (Article 21.5 EC)

Appellate Body Report, United States Tax Treatment for "Foreign Sales Corporations" Recourse to Article 21.5 of the DSU by the European Communities, WT/DS108/AB/RW, adopted 29 January 2002, DSR 2002:I, 55

US FSC (Article 21.5 EC)

Panel Report, United States Tax Treatment for "Foreign Sales Corporations" Recourse to Article 21.5 of the DSU by the European Communities, WT/DS108/RW, adopted 29 January 2002, as modified by Appellate Body Report WT/DS108/AB/RW, DSR 2002:I, 119

US FSC (Article 21.5 EC II)

Appellate Body Report, United States Tax Treatment for "Foreign Sales Corporations" Second Recourse to Article 21.5 of the DSU by the European Communities, WT/DS108/AB/RW2, adopted 14 March 2006, DSR 2006:XI, 4721

US FSC (Article 21.5 EC II)

Panel Report, United States Tax Treatment for "Foreign Sales Corporations" Second Recourse to Article 21.5 of the DSU by the European Communities, WT/DS108/RW2, adopted 14 March 2006, as upheld by Appellate Body Report WT/DS108/AB/RW2, DSR 2006:XI, 4761

US FSC (Article 22.6 US)

Decision by the Arbitrator, United States Tax Treatment for "Foreign Sales Corporations" Recourse to Arbitration by the United States under Article 22.6 of the DSU and Article 4.11 of the SCM Agreement, WT/DS108/ARB, 30 August 2002, DSR 2002:VI, 2517

US Gambling Appellate Body Report, United States Measures Affecting the Cross-Border Supply of Gambling and Betting Services, WT/DS285/AB/R, adopted 20 April 2005, DSR 2005:XII, 5663 (Corr.1, DSR 2006:XII, 5475)

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US Gasoline Appellate Body Report, United States Standards for Reformulated and Conventional Gasoline, WT/DS2/AB/R, adopted 20 May 1996, DSR 1996:I, 3

US Hot-Rolled Steel Appellate Body Report, United States Anti-Dumping Measures on Certain Hot-Rolled Steel Products from Japan, WT/DS184/AB/R, adopted 23 August 2001, DSR 2001:X, 4697

US Large Civil Aircraft United States Measures Affecting Trade in Large Civil Aircraft, WT/DS317

US Large Civil Aircraft (2nd complaint)

Panel Report, United States Measures Affecting Trade in Large Civil Aircraft (Second Complaint), WT/DS353/R, circulated to WTO Members 31 March 2011

US Line Pipe Appellate Body Report, United States Definitive Safeguard Measures on Imports of Circular Welded Carbon Quality Line Pipe from Korea, WT/DS202/AB/R, adopted 8 March 2002, DSR 2002:IV, 1403

US Oil Country Tubular Goods Sunset Reviews

Appellate Body Report, United States Sunset Reviews of Anti-Dumping Measures on Oil Country Tubular Goods from Argentina, WT/DS268/AB/R, adopted 17 December 2004, DSR 2004:VII, 3257

US Section 211 Appropriations Act

Appellate Body Report, United States Section 211 Omnibus Appropriations Act of 1998, WT/DS176/AB/R, adopted 1 February 2002, DSR 2002:II, 589

US Shrimp Appellate Body Report, United States Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R, adopted 6 November 1998, DSR 1998:VII, 2755

US Softwood Lumber III Panel Report, United States Preliminary Determinations with Respect to Certain Softwood Lumber from Canada, WT/DS236/R, adopted 1 November 2002, DSR 2002:IX, 3597

US Softwood Lumber IV Appellate Body Report, United States Final Countervailing Duty Determination with Respect to Certain Softwood Lumber from Canada, WT/DS257/AB/R, adopted 17 February 2004, DSR 2004:II, 571

US Softwood Lumber VI (Article 21.5 Canada)

Appellate Body Report, United States Investigation of the International Trade Commission in Softwood Lumber from Canada Recourse to Article 21.5 of the DSU by Canada, WT/DS277/AB/RW, adopted 9 May 2006, and Corr.1, DSR 2006:XI, 4865

US Sonar Mapping GATT Panel Report, United States Procurement of a Sonar Mapping System, GPR.DS1/R, 23 April 1992, unadopted

US Steel Safeguards Appellate Body Report, United States Definitive Safeguard Measures on Imports of Certain Steel Products, WT/DS248/AB/R, WT/DS249/AB/R, WT/DS251/AB/R, WT/DS252/AB/R, WT/DS253/AB/R, WT/DS254/AB/R, WT/DS258/AB/R, WT/DS259/AB/R, adopted 10 December 2003, DSR 2003:VII, 3117

US Upland Cotton Appellate Body Report, United States Subsidies on Upland Cotton, WT/DS267/AB/R, adopted 21 March 2005, DSR 2005:I, 3

US Upland Cotton Panel Report, United States Subsidies on Upland Cotton, WT/DS267/R, Corr.1, and Add.1 to Add.3, adopted 21 March 2005, as modified by Appellate Body Report WT/DS267/AB/R, DSR 2005:II, 299

WT/DS353/AB/R BCI deleted, as indicated [***] Page xii HSBI omitted, as indicated [[HSBI]]


US Upland Cotton (Article 21.5 Brazil)

Appellate Body Report, United States Subsidies on Upland Cotton Recourse to Article 21.5 of the DSU by Brazil, WT/DS267/AB/RW, adopted 20 June 2008, DSR 2008:III, 809

US Upland Cotton (Article 21.5 Brazil)

Panel Report, United States Subsidies on Upland Cotton Recourse to Article 21.5 of the DSU by Brazil, WT/DS267/RW and Corr.1, adopted 20 June 2008, as modified by Appellate Body Report WT/DS267/AB/RW, DSR 2008:III, 997 to DSR 2008:VI, 2013

US Wheat Gluten Appellate Body Report, United States Definitive Safeguard Measures on Imports of Wheat Gluten from the European Communities, WT/DS166/AB/R, adopted 19 January 2001, DSR 2001:II, 717

US Wool Shirts and Blouses Appellate Body Report, United States Measure Affecting Imports of Woven Wool Shirts and Blouses from India, WT/DS33/AB/R, adopted 23 May 1997, and Corr.1, DSR 1997:I, 323

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ABBREVIATIONS USED IN THIS REPORT

Abbreviation Description

1983 Presidential Memorandum

Memorandum to the Heads of Executive Departments and Agencies: Government Patent Policy, Public Papers 248, 18 February 1983 (Panel Exhibit EC-560)

1987 Executive Order Executive Order 12591, Facilitating Access to Science and Technology, 10 April 1987 (Panel Exhibit EC-561)

1992 Agreement Agreement between the European Economic Community and the Government of the United States of America concerning the application of the GATT Agreement on Trade in Civil Aircraft on trade in large civil aircraft, done at Brussels on 17 July 1992, Official Journal of the European Union, L Series, No. 301 (17 October 1992) 32

ACT programme NASA Advanced Composites Technology Program

Additional Procedures Additional Procedures to Protect Sensitive Information adopted by the Appellate Body Division in its Procedural Ruling dated 15 April 2011 (contained in Annex III to this Report)

AJCA American Jobs Creation Act of 2004, Public Law No. 108-357, 118 Stat. 1418 (Panel Exhibit EC-626)

Anti-Dumping Agreement Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994

AS programme NASA Aviation Safety Program

AST programme NASA Advanced Subsonic Technology Program

ATCAS Advanced Composite Technology Fuselage Program

ATP USDOC Advanced Technology Program

B&O business and occupation

B&P bid and proposal

Bayh-Dole Act Patent and Trademark Law Amendments Act of 1980, codified at United States Code, Title 35, chapter 18, sections 200-212 (Patent Rights in Inventions Made with Federal Assistance) (Panel Exhibit EC-558)

BCA Boeing Commercial Airplanes

BCI business confidential information

Board NASA Inventions and Contributions Board

Cabral model Economic model developed by Luis M.B. Cabral, Professor of Economics at New York University's Stern School of Business, in the Cabral Report

Cabral Report Professor L.M.B. Cabral, "Impact of Development Subsidies Granted to Boeing" (New York University and CEPR, March 2007) (Panel Exhibit EC-4)

WT/DS353/AB/R BCI deleted, as indicated [***] Page xiv HSBI omitted, as indicated [[HSBI]]


CHRA Corporate Headquarters Relocation Act of 2001, Illinois Public Act 92-0207 (Panel Exhibit EC-216)

DSB Dispute Settlement Body

DUS&T programme USDOD Dual Use Science and Technology Program

EDGE Economic Development for a Growing Economy

ETI extraterritorial income

ETI Act FSC Repeal and Extraterritorial Income Exclusion Act of 2000, Public Law No. 106-519, 114 Stat. 2423 (Panel Exhibit EC-625)

FAR Federal Acquisition Regulation

FIP foreground intellectual property

FPDS Federal Procurement Data Base

FPDS-NG Federal Procurement Data Base Next Generation

FSC Foreign Sales Corporation

House Bill 2294 Washington State House Bill 2294, 58th Legislature, 2nd Special Session (Washington, 2003) (Panel Exhibit EC-54)

HPCC programme NASA High Performance Computing and Communications Program

HSBI highly sensitive business information

HSR programme NASA High-Speed Research Program

IDS Integrated Defense Systems

ILFC International Lease Finance Corporation

IR&D independent research and development

IRBs industrial revenue bonds

ITAR International Traffic in Arms Regulations

ITR International Trade Resources

JAL Japan Airlines

KDFA bonds Kansas Development Finance Authority Bonds

LA/MSF launch aid/member State financing

LCA large civil aircraft

LCF Boeing 747 large cargo freighter

LERD Limited Exclusive Rights Data

ManTech programme USDOD Manufacturing Technology Program

MSA Project Olympus Master Site Development and Location Agreement between the Boeing Company and the State of Washington, County of Snohomish, City of Everett and Certain Other Governmental Units and Authorities of or in the State of Washington, 19 December 2003 (Panel Exhibit EC-58)

BCI deleted, as indicated [***] WT/DS353/AB/R HSBI omitted, as indicated [[HSBI]] Page xv


NASA United States National Aeronautics and Space Administration

OTAs other transaction agreements

Panel Report Panel Report, United States Measures Affecting Trade in Large Civil Aircraft (Second Complaint), WT/DS353/R

Peisen Study Peisen et al., Case Studies: Time Required to Mature Aeronautic Technologies to Operational Readiness (SAIC and GRA, Inc., November 1999) (Panel Exhibit EC-795)

QAT programme NASA Quiet Aircraft Technology Program

R&D research and development

R&T Base programme NASA Research and Technology Base Program

R&TD research and technological development

RDT&E research, development, test, and evaluation

RTM resin transfer moulding

SALE Singapore Aircraft Leasing Enterprise

SCM Agreement Agreement on Subsidies and Countervailing Measures

Space Act National Aeronautics and Space Act of 1958, Public Law No. 85-568, as amended (Panel Exhibit EC-286)

Space Act Agreements agreements between NASA and Boeing undertaken pursuant to NASA's authority under the Space Act

Spirit Spirit AeroSystems

Subsidies Committee Committee on Subsidies and Countervailing Measures

TIPRA Tax Increase Prevention and Reconciliation Act of 2005, Public Law No. 109-222, 120 Stat. 345 (Panel Exhibit EC-627)

Tokyo Round Subsidies Code Tokyo Round Agreement on Interpretation and Application of Articles VI, XVI and XXIII of the General Agreement on Tariffs and Trade, BISD 26S/56, entered into force 1 January 1980

TRL technology readiness level

USDOC United States Department of Commerce

USDOD United States Department of Defense

USDOL United States Department of Labor

Vienna Convention Vienna Convention on the Law of Treaties, done at Vienna, 23 May 1969, 1155 UNTS 331; 8 International Legal Materials 679

VS programme NASA Vehicle Systems Program

Working Procedures Working Procedures for Appellate Review, WT/AB/WP/6, 16 August 2010

WTO World Trade Organization

WTO Agreement Marrakesh Agreement Establishing the World Trade Organization

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WORLD TRADE ORGANIZATION APPELLATE BODY

United States Measures Affecting Trade in Large Civil Aircraft (Second Complaint) European Union1, Appellant/Appellee United States, Other Appellant/Appellee Australia, Third Participant Brazil, Third Participant Canada, Third Participant China, Third Participant Japan, Third Participant Korea, Third Participant

AB-2011-3 Present: Bautista, Presiding Member Unterhalter, Member Zhang, Member

I. Introduction

1. The European Union and the United States each appeals certain issues of law and legal

interpretations developed in the Panel Report, United States Measures Affecting Trade in Large

Civil Aircraft (Second Complaint)2 (the "Panel Report"). The Panel was established on 17 February

2006 to consider a complaint by the European Communities regarding a number of US measures

1This dispute began before the entry into force of the Treaty of Lisbon amending the Treaty on

European Union and the Treaty establishing the European Community (done at Lisbon, 13 December 2007) on 1 December 2009. On 29 November 2009, the World Trade Organization received a Verbal Note (WT/L/779) from the Council of the European Union and the Commission of the European Communities stating that, by virtue of the Treaty of Lisbon, as of 1 December 2009, the "European Union" replaces and succeeds the "European Community". On 13 July 2010, the World Trade Organization received a second Verbal Note (WT/Let/679) from the Council of the European Union confirming that, with effect from 1 December 2009, the European Union replaced the European Community and assumed all the rights and obligations of the European Community in respect of all Agreements for which the Director-General of the World Trade Organization is the depositary and to which the European Community is a signatory or a contracting party. We understand the reference in the Verbal Notes to the "European Community" to be a reference to the "European Communities". Thus, although the European Communities was a party in the Panel proceedings, and the Panel referred to the European Communities in its Report, it is the European Union that filed a Notice of Appeal in this dispute after the entry into force of the Treaty of Lisbon, and we will thus refer to the European Union in this Report in its capacity as appellant and as appellee. However, when referring to events that took place during the Panel proceedings, or quoting from the Panel Report, we refer to the European Communities.

2WT/DS353/R, 31 March 2011.

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affecting trade in large civil aircraft ("LCA").3 The European Communities claimed that the

United States has provided subsidies to US producers of LCA, namely, The Boeing Company and the

McDonnell Douglas Corporation (prior to its merger with Boeing4), and that such subsidies are

prohibited and/or actionable under the Agreement on Subsidies and Countervailing Measures

(the "SCM Agreement").

2. The European Communities' claims before the Panel related to measures from three US States

and municipalities therein, as well as to a number of US Federal Government measures, all allegedly

providing subsidies to Boeing, as follows5:

(a) State and local measures:

(i) State of Washington and municipalities therein: the provision of tax

incentives by the State of Washington through five measures under

House Bill 22946 ("House Bill 2294"); the provision of tax reductions from

the City of Everett's business and occupation ("B&O") tax pursuant to

3Panel Report, paras. 1.1-1.3. The Panel took note of the European Communities' definition of "large civil aircraft" (LCA) as follows:

In accordance with the 1992 Agreement between the European Communities and the Government of the United States of America concerning the application of the GATT Agreement on Trade in Civil Aircraft on trade in large civil aircraft, large civil aircraft ("LCA") included all aircraft as defined in Article 1 of the GATT Agreement on Trade in Civil Aircraft, except engines as defined in Article 1.1(b) thereof, that are designed for passenger or cargo transportation and have 100 or more passenger seats or its equivalent in cargo configuration. Boeing produces or markets the following families of LCA: 717, 737, 747, 757, 767, 777, and 787.

(Panel Report, footnote 20 to para. 2.1 (quoting Request for the Establishment of a Panel by the European Communities, originally circulated as WT/DS317/5 (as amended by WT/DS353/2, WT/DS317/Add.1 and corrected by WT/DS353/2/Corr.1, WT/DS317/5/Add.1/Corr.1), footnote 4))

4The Panel explained that, prior to 1997, two firms produced LCA in the United States: The Boeing Company and McDonnell Douglas Corporation. McDonnell Douglas merged with Boeing in 1997. Following the merger, Boeing became the sole US producer of LCA. Boeing is divided into several different business segments and units: Boeing Commercial Airplanes ("BCA") is the segment that produces LCA and parts; Boeing's Integrated Defense Systems ("IDS") segment focuses on defence, intelligence, communications, and space; Boeing's Phantom Works unit conducts research and development ("R&D") for both the BCA and IDS segments of the company; and Boeing Capital Corporation ("BCC") provides asset-backed lending and leasing to support other Boeing business units by arranging, structuring, and providing financing to assist in the sale and delivery of Boeing LCA products. The Panel noted that, unless otherwise indicated, the references in its Report to "Boeing" included McDonnell Douglas. (See Panel Report, paras. 2.1 and 7.1 and footnote 1004 thereto, and footnote 1042 to para. 7.33) We follow the same approach in this Report.

5A detailed description of the measures at issue relevant to these appellate proceedings is contained in Part IV of this Report.

6Washington State House Bill 2294, 58th Legislature, 2nd Special Session (Washington, 2003) "An Act related to retaining and attracting the aerospace industry to Washington state" (Panel Exhibit EC-54). These five measures are: (i) a business and occupation ("B&O") tax rate reduction; (ii) B&O tax credits for preproduction development, computer software and hardware, and property taxes; (iii) sales and use tax exemptions for computers, construction, and equipment; (iv) leasehold excise tax exemptions; and (v) property tax exemptions. (Panel Report, paras. 7.41 and 7.42)


Ordinance No. 2759-047; and the provision of various incentives, including

training facilities and infrastructure improvements, in connection with the

production of Boeing's 787 under the Project Olympus Master Site

Development and Location Agreement between the Boeing Company and the

State of Washington (the "MSA")8;

(ii) State of Kansas and municipalities therein: the provision by the City of

Wichita of property and sales tax abatements through the issuance of

industrial revenue bonds ("IRBs")9; and the issuance by the State of Kansas

of Kansas Development Finance Authority Bonds ("KDFA bonds") to fund

the development and production of a portion of the fuselage for Boeing's 787

in Wichita, along with payments by the State of Kansas of the interest on

such bonds10; and

(iii) State of Illinois and municipalities therein: the provision by Cook County

and the City of Chicago of four separate incentives in consideration for

Boeing's decision to relocate its corporate headquarters from Seattle,

Washington State to Chicago in 200111; and

7City of Everett Ordinance No. 2759-04 (2004) (Panel Exhibit EC-61); Panel Report,

paras. 7.306-7.309. 8Project Olympus Master Site Development and Location Agreement between the Boeing Company and

the State of Washington, County of Snohomish, City of Everett and Certain Other Governmental Units and Authorities of or in the State of Washington, 19 December 2003 (Panel Exhibit EC-58). The European Communities argued that the following eight measures referred to in the MSA constitute specific subsidies: (i) specific road improvements for the benefit of Boeing's LCA production facilities in Everett; (ii) the waiver of landing fees for Boeing's 747 large cargo freighters ("LCFs") at Paine Field to lower the costs of transporting 787 components to Everett; (iii) improvements to rail-barge transfer capabilities and expansion of the South Terminal facility to facilitate the transportation of 787 components to Everett; (iv) the freezing of rates for water, sanitary sewer, solid waste, and process wastewater services utilized by Boeing's LCA production facilities in Everett; (v) the provision of coordinators to Boeing to help start up Project Olympus; (vi) the creation of a workforce development programme and the provision of an "Employment Resource Center" to train Boeing's employees who will work on the assembly of the 787; (vii) the extension to 747 LCFs of tax and other incentives provided to the 787; and (viii) the assumption of litigation costs that Boeing incurs in relation to the MSA. (Panel Report, para. 7.357; see also para. 4.37)

9Panel Report, paras. 7.648-7.664. 10Panel Report, paras. 4.47 and 7.822-7.826. 11Panel Report, paras. 7.893-7.902. The four incentives granted by Cook County and the City of

Chicago are: (i) the reimbursement of up to 50% of the relocation expenses incurred by an "eligible business"; (ii) the granting of 15-year Economic Development for a Growing Economy ("EDGE") tax credits to an "eligible business", instead of the normal 10-year tax credit available under the EDGE Tax Credit Act; (iii) the abatement or refund of a portion of property taxes of an "eligible business" for up to 20 years; and (iv) the payment of $1 million by the City of Chicago to retire the lease of the previous tenant of Boeing's new headquarters building. The first three incentives are derived from the Corporate Headquarters Relocation Act of 2001 (Illinois Public Act 92-0207 (Panel Exhibit EC-216)) (the "CHRA"). (Panel Report, paras. 7.893-7.902)


(b) Federal measures:

(i) US National Aeronautics and Space Administration ("NASA"): payments to

Boeing and the provision of access to NASA facilities, equipment, and

employees pursuant to contracts and agreements entered into under eight

aeronautics research and development ("R&D") programmes12;

(ii) US Department of Defense ("USDOD"): payments to Boeing and the

provision of access to USDOD facilities for aeronautics R&D relating to

"dual use" technologies, pursuant to contracts and agreements entered into

under 23 research, development, test, and evaluation ("RDT&E")

programmes13;

(iii) NASA/USDOD: the allocation of intellectual property rights to Boeing

under contracts and agreements entered into with NASA and the USDOD14;

and payments by NASA and the USDOD for independent research and

development ("IR&D") expenditures and bid and proposal ("B&P")

reimbursements, notably relating to basic research, applied research,

development, and systems and other concept formulation studies15;

(iv) US Department of Commerce ("USDOC"): payments to Boeing and the

provision of access to USDOC facilities, equipment, and employees to

perform aeronautics R&D under eight Advanced Technology Program

("ATP") projects, falling into three general categories16;

(v) US Department of Labor ("USDOL"): a payment of $1.5 million, made to

Edmonds Community College under the High Growth Job Training Initiative,

12Panel Report, paras. 7.942-7.947. The eight NASA R&D programmes that funded the R&D contracts

and agreements are: (i) the Advanced Composites Technology Program ("ACT programme"); (ii) the High-Speed Research Program ("HSR programme"); (iii) the Advanced Subsonic Technology Program ("AST programme"); (iv) the High Performance Computing and Communications Program ("HPCC programme"); (v) the Aviation Safety Program ("AS programme"); (vi) the Quiet Aircraft Technology Program ("QAT programme"); (vii) the Vehicle Systems Program ("VS programme"); and (viii) the Research and Technology Base Program ("R&T Base programme"). (Ibid., para. 7.944)

13Panel Report, paras. 7.1113-7.1123. The 23 USDOD RDT&E programmes identified by the European Communities in its panel request are set out in paragraph 7.1113 of the Panel Report.

14Panel Report, paras. 7.1260-7.1265. 15Panel Report, paras. 7.1315-7.1318. 16Panel Report, paras. 7.1213-7.1223. The three categories into which the eight ATP projects fall are:

(i) improving the manufacturing of lightweight composite and metal structures and materials; (ii) improving electronics components; and (iii) improving manufacturing efficiency and supply chain logistics. (Ibid., para. 7.1222) The eight USDOC projects are listed in paragraph 7.1213 of the Panel Report.


for the training of aerospace industry workers for the development and

production of Boeing's 78717; and

(vi) Foreign Sales Corporation ("FSC") / extraterritorial income ("ETI") and

successor legislation: the provision of federal tax exemptions to Boeing

under the original provisions of the US Internal Revenue Code relating to

foreign sales corporations and successor legislative acts, including

grandfathering clauses and transitional rules.18

3. According to the European Communities, all of the above measures provided Boeing's LCA

division with subsidies amounting to $19.1 billion over the period 1989-2006.19

17Panel Report, paras. 7.1355 and 7.1357. 18Panel Report, paras. 7.1378-7.1385. The FSC/ETI subsidies were provided pursuant to the following

four pieces of US legislation: (i) Sections 921-927 of the US Internal Revenue Code enabled certain corporations in certain locations

outside the customs territory of the United States (FSCs) to obtain a tax exemption on a portion of their "foreign trade income" (in essence, the gross receipts of an FSC attributable to the lease or sale outside of the United States of "export property" produced within the United States). In addition, dividends from exempt and non-exempt income to the shareholder generally qualified for a full dividends-received deduction. This measure also allowed US parent companies of FSCs to defer the payment of taxes on certain "foreign trade income" that would normally be subject to immediate taxation and to avoid paying taxes on dividends received from their FSCs related to "foreign trade income". (Panel Report, para. 7.1379) (ii) The FSC Repeal and Extraterritorial Income Exclusion Act of 2000 (Public Law No. 106-519, 114 Stat. 2423 (Panel Exhibit EC-625)) (the "ETI Act") was enacted on 15 November 2000 in response to the findings made by the panel and Appellate Body in the original US FSC dispute, and repealed the provisions in the US Internal Revenue Code relating to the taxation of FSCs, subject to certain grandfathering clauses and transitional rules. The ETI Act also introduced an exclusion from income taxation of ETI (gross income of a taxpayer attributable to "foreign trading gross receipts", that is, gross receipts by certain qualifying transactions involving the sale or lease of "qualifying foreign trade property" not for use in the United States). (Panel Report, paras. 7.1380-7.1383) (iii) The American Jobs Creation Act of 2004 (Public Law No. 108-357, 118 Stat. 1418 (Panel Exhibit EC-626)) (the "AJCA") was enacted on 22 October 2004 in response to the findings made by the panel and the Appellate Body in the US FSC (Article 21.5 EC) compliance dispute. Section 101 of the AJCA repealed the exclusion of ETI but included a "transitional rule for 2005 and 2006" allowing US taxpayers to claim 80% of ETI tax benefits with respect to certain transactions in 2005 and to claim 60% of ETI tax benefits with respect to certain transactions in 2006. The AJCA also indefinitely grandfathered the ETI Act scheme in respect of certain transactions, and left undisturbed the FSC benefits pursuant to certain transactions that had been grandfathered under the ETI Act. (Panel Report, para. 7.1384) (iv) The Tax Increase Prevention and Reconciliation Act of 2005 (Public Law No. 109-222, 120 Stat. 345 (Panel Exhibit EC-627)) (the "TIPRA") was enacted on 17 May 2006 in response to the findings made by the panel and the Appellate Body in the US FSC (Article 21.5 EC II) second compliance dispute. Section 513(a) of the TIPRA repealed section 5(c)(1)(B) of the ETI Act that allowed for the continuation of FSC benefits in respect of transactions occurring pursuant to a binding contract in effect on 30 September 2000. Section 513(b) of the TIPRA repealed the provisions in section 101(f) of the AJCA that allowed for the continuation of ETI tax benefits in respect of transactions occurring pursuant to a binding contract in effect on 17 September 2003. Section 513(c) of the TIPRA provides that "{t}he amendments made by this section shall apply to taxable years beginning after the date of the enactment of this Act". (Panel Report, para. 7.1385)

19Panel Report, paras. 7.1605 and 7.1606. The European Communities further estimated that Boeing would receive approximately $4.6 billion in subsidies pursuant to these measures between 2007 and 2024. (Ibid., para. 7.1606 and footnote 3371 thereto)


A. The European Communities' Claims before the Panel

4. The European Communities requested the Panel to find that the United States acted

inconsistently with its obligations under the SCM Agreement. First, the European Communities

submitted that the State of Washington's House Bill 2294 tax incentives and the FSC and ETI federal

taxation schemes constitute prohibited subsidies, within the meaning of Article 3.1(a) and in violation

of Article 3.2 of the SCM Agreement.20

5. Second, the European Communities argued that, through various measures provided by the

US Federal Government and the States of Washington, Kansas, and Illinois, and municipalities

therein, the United States provided actionable subsidies to Boeing's LCA division, which caused

serious prejudice to the interests of the European Communities, within the meaning of Articles 5(c)

and 6.3 of the SCM Agreement.21 In particular, the European Communities requested the Panel to find

that serious prejudice was caused by means of:

(a) significant price suppression, within the meaning of Article 6.3(c) of the

SCM Agreement, with respect to orders of Airbus' A330, Original A350,

A350XWB-800, A320, and A340 families of LCA, or, in the alternative, threat of

significant price suppression with respect to deliveries of Airbus' A330,

A350XWB-800, A320, and A340 families of LCA22;

(b) significant lost sales, within the meaning of Article 6.3(c) of the SCM Agreement,

with respect to orders of Airbus' A330, Original A350, A320, and A340 families of

LCA, or, in the alternative, threat of significant lost sales with respect to deliveries of

Airbus' A330, A320, and A340 families of LCA23;

(c) displacement and impedance, within the meaning of Article 6.3(a) of the

SCM Agreement, with respect to orders of Airbus' A330 and Original A350 families

of LCA, or, in the alternative, threat of displacement or impedance with respect to

deliveries of Airbus' A330 and A350XWB-800 families of LCA24;

20Panel Report, para. 3.1(a) (referring to European Communities' first written submission to the Panel,

para. 24). 21Panel Report, para. 3.1(b). 22Panel Report, para. 3.1(b)(i) (referring to European Communities' first written submission to the

Panel, paras. 1387, 1455, and 1654). 23Panel Report, para. 3.1(b)(ii) (referring to European Communities' first written submission to the

Panel, paras. 1446 and 1654). 24Panel Report, para. 3.1(b)(iii) (referring to European Communities' first written submission to the

Panel, paras. 1455 and 1654).


(d) displacement and impedance, within the meaning of Article 6.3(b) of the

SCM Agreement, with respect to orders of Airbus' A330, Original A350, A320, and

A340 families of LCA, or, in the alternative, threat of displacement or impedance

with respect to deliveries of Airbus' A330, A350XWB-800, A320, and A340 families

of LCA25; and

(e) threat of significant price suppression with respect to future orders of Airbus' A330,

A350XWB-800, A320, and A350XWB-900/1000 families of LCA.26

6. Third, the European Communities contended that the United States acted inconsistently with

its obligations regarding support to the LCA industry, as set forth in the 1992 Agreement between the

European Economic Community and the Government of the United States of America concerning the

application of the GATT Agreement on Trade in Civil Aircraft on trade in large civil aircraft 27 (the

"1992 Agreement"), and that the United States' breach of that Agreement constitutes serious prejudice

to the European Communities' interests, within the meaning of Article 5(c) of the SCM Agreement.28

7. On 24 November 2006, the European Communities filed a request for preliminary rulings

concerning the information-gathering procedure contained in Annex V to the SCM Agreement. The

European Communities submitted two alternative requests. First, it requested the Panel to rule that

the Annex V procedure had been initiated and that, consequently, the United States had an obligation

to respond to certain questions put to it by the European Communities in a communication dated

25 May 2006. In the alternative, the European Communities asked the Panel to exercise its discretion

under Article 13 of the Understanding on Rules and Procedures Governing the Settlement of Disputes

(the "DSU") to put some or all of these questions to the United States.29

25Panel Report, para. 3.1(b)(iv) (referring to European Communities' first written submission to the

Panel, paras. 1455, 1640, and 1654). 26Panel Report, para. 3.1(b)(v) (referring to European Communities' first written submission to the

Panel, para. 1654). 27Done at Brussels on 17 July 1992, Official Journal of the European Union, L Series, No. 301

(17 October 1992) 32. 28Panel Report, para. 3.1(c) (referring to European Communities' first written submission to the Panel,

para. 1055). 29Panel Report, para. 7.19.


B. The Panel's Findings

8. During the course of the Panel proceedings, the Panel adopted additional procedures for the

protection of business confidential information ("BCI") and highly sensitive business information

("HSBI"), and issued a number of rulings relating to these procedures and other issues.30 On 30 July

2007, the Panel issued a Preliminary Ruling declining the requests that had been made by the

European Communities relating to the information-gathering procedure set out in Annex V to the

SCM Agreement.31 The Panel considered that initiation of an Annex V procedure requires some form

of action on the part of the Dispute Settlement Body ("DSB").32 Having examined the minutes of the

various DSB meetings where the European Communities' request to initiate such a procedure was

considered, the Panel found it "clear" that "the DSB never took any action to initiate an Annex V

procedure", or designate a DSB representative, as required by Annex V.33 Accordingly, the Panel

denied the European Communities' request to rule that an Annex V procedure had been initiated, as

well as various additional requests that were dependent upon that request.34 The Panel also declined

the European Communities' alternative request, explaining that it did not, in the circumstances of this

dispute, consider it necessary or appropriate to exercise its discretion under Article 13 of the DSU to

seek information from the United States before having reviewed the parties' first written

submissions.35

30BCI and HSBI procedures were adopted by the Panel on 19 February 2007, at the request of, and

following consultations with, the parties. The procedures were modified several times over the course of the proceedings and the Panel issued a number of rulings in connection with them. The final version of these procedures is attached to the Panel Report as Annex D. (Panel Report, para. 1.11) On 21 December 2006, Brazil requested the Panel to grant it certain enhanced third party rights, and on 22 December 2006, Canada requested the Panel to grant it any enhanced third party rights granted to Brazil. Both parties to the dispute submitted comments and opposed the requests. On 23 February 2007, the Panel informed the parties and third parties that it had decided not to grant enhanced third party rights to any third party in the proceedings. (Panel Report, paras. 1.14, 7.14, and 7.15)

31Panel Report, paras. 7.19-7.24. 32Panel Report, para. 7.21. 33Panel Report, para. 7.20. 34Panel Report, para. 7.22. In this regard, the Panel rejected requests that it: (i) "rule that the

United States {was} under an obligation to cooperate and answer the questions that had been put to it in the European Communities' letter to the Facilitator dated 23 May 2006"; (ii) "rule that Mr. Mateo Diego-Fernndez was effectively designated as a facilitator in that procedure, and in the event that the Panel {did} not make this ruling, nevertheless to provide the relief set forth in the preceding and following points"; and (iii) "adopt such working procedures that would allow the completion of the Annex V procedure in due time before the deadline for the filing of the European Communities' first written submission". (Ibid. (quoting Request for preliminary rulings by the European Communities, 24 November 2006 ("European Communities' request for preliminary rulings"), para. 58))

35Panel Report, para. 7.23.


9. The Panel Report was circulated to Members of the World Trade Organization (the "WTO")

on 31 March 2011. In its Report, the Panel found the following state and local measures to constitute

specific subsidies within the meaning of Articles 1 and 2 of the SCM Agreement36:

(a) State of Washington and municipalities therein: (i) the Washington State B&O tax

rate reduction provided for in House Bill 2294; (ii) the B&O tax credits for

preproduction development, computer software and hardware, and property taxes

provided for in House Bill 2294; (iii) the sales and use tax exemptions for computer

hardware, peripherals, and software provided for in House Bill 229437; (iv) the City

of Everett B&O tax rate reduction38; and (v) the workforce development programme

and the Employment Resource Center provided under the MSA39;

(b) State of Kansas and municipalities therein: the state and local property and sales tax

abatements granted to Boeing through the issuance of IRBs40; and

(c) State of Illinois and municipalities therein: (i) the reimbursement of a portion of

Boeing's relocation expenses provided for in the Corporate Headquarters Relocation

Act of 200141 (the "CHRA"); (ii) the 15-year Economic Development for a Growing

Economy ("EDGE") tax credits provided for in the CHRA; (iii) the abatement or

refund of a portion of Boeing's property taxes provided for in the CHRA; and (iv) the

payment to retire the lease of the previous tenant of Boeing's new headquarters

building.42

10. The Panel was not satisfied, however, that the European Communities had established that the

following state measures constitute specific subsidies within the meaning of the SCM Agreement:

(i) the Washington State sales tax exemptions for construction services and equipment, the leasehold

36Panel Report, para. 7.1431(a)(i)-(iv), (b)(i), and (c)(i)-(iv), respectively. 37The Panel estimated the amounts of the subsidy provided to Boeing's LCA division through the three

House Bill 2294 tax incentives that it found to be specific subsidies to be: (i) $13.8 million (B&O tax rate reduction); (ii) $42.4 million (B&O tax credits) (of which, tax credit for preproduction development ($21.3 million), computer software and hardware ($20 million), and property taxes ($1.1 million)); and (iii) $8.3 million (sales and use tax exemption for computer hardware, peripherals and software). (Panel Report, paras. 7.254, 7.257, 7.258, 7.300, and 7.302)

38The Panel estimated the amount of the subsidy provided to Boeing's LCA division by means of the City of Everett B&O tax rate reduction through 2006 to be $2.2 million. (Panel Report, para. 7.354)

39The Panel estimated the amount of subsidies provided to Boeing's LCA division by means of the workforce development programme and the Employment Resource Center over the period 1989-2006 to be $11 million. (Panel Report, para. 7.644)

40The Panel estimated the amount of the subsidy provided to Boeing through the issuance of IRBs to be $475.8 million. (Panel Report, para. 7.819)

41Illinois Public Act 92-0207 (Panel Exhibit EC-216). 42The Panel estimated the amount of the subsidy provided through the four incentives at issue to be

$11 million over the period 2002-2006. (Panel Report, para. 7.939)


tax exemption, and the property tax exemption granted pursuant to House Bill 229443; (ii) the

measuresother than the workforce development programme and the Employment Resource

Centergranted pursuant to the MSA44; or (iii) the State of Kansas' issuance of KDFA bonds.45

11. The Panel also found the following US Federal Government measures to constitute specific

subsidies within the meaning of Articles 1 and 2 of the SCM Agreement:

(a) NASA: (i) the payments made to Boeing pursuant to procurement contracts entered

into under the eight aeronautics R&D programmes at issue; and (ii) the access to

NASA facilities, equipment, and employees provided to Boeing pursuant to

procurement contracts and agreements under the National Aeronautics and Space Act

of 195846 (the "Space Act") entered into under the eight aeronautics R&D

programmes at issue ("Space Act Agreements")47;

(b) USDOD: (i) the payments made to Boeing pursuant to assistance instruments entered

into under the 23 RDT&E programmes at issue; and (ii) the access to USDOD

facilities provided to Boeing pursuant to assistance instruments entered into under the

23 RDT&E programmes at issue48; and

43Panel Report, paras. 7.303 and 7.1432(a)(i)-(iii). 44The measures found not to be specific subsidies are: (i) the I-5 and SR 527 expansion projects, the

construction of a rail-barge transfer facility, and the expansion of the South Terminal by the Port of Everett; (ii) Snohomish County's waiver of 747 LCF landing fees at Paine Field; (iii) the alleged commitment made by the City of Everett and Snohomish County to freeze utility rates charged to Boeing; (iv) the provision of coordinators to Boeing pursuant to the MSA; (v) tax and other incentives related to the 747 LCFs; and (vi) the assumption by Washington State of costs to Boeing for MSA-related legal proceedings. (Panel Report, paras. 7.645 and 7.1432(a)(iv)-(ix))

45Panel Report, paras. 7.890 and 7.1432(b)(i). 46Public Law No. 85-568, as amended (Panel Exhibit EC-286). 47Panel Report, paras. 7.1041, 7.1049, and 7.1431(d)(i)-(ii). The Panel estimated the amount of the

subsidy provided to Boeing's LCA division in the form of payments under R&D contracts to be $1.05 billion over the period 1989-2006, and the amount of the subsidy provided to Boeing's LCA division in the form of access to NASA facilities, equipment and employees under NASA R&D contracts and agreements to be $1.55 billion over this same period. Thus, the Panel estimated the total amount of the subsidy provided through the eight NASA aeronautics R&D programmes over the 1989-2006 period to be $2.6 billion. (Ibid., paras. 7.1109 and 7.1110)

48Panel Report, paras. 7.1188, 7.1198, and 7.1431(e)(i)-(ii). The Panel found that it was unable to provide an estimate of the amount of the subsidy under the 23 USDOD RDT&E programmes over the period 1991-2006 because it was "unclear". The European Communities had estimated that, out of the $45 billion in RDT&E funding that Boeing received from the USDOD over the period 1991-2005, approximately $4.3 billion related to "dual use" R&D. For its part, the United States estimated the total amount of any USDOD subsidy to Boeing for "dual use" R&D to be significantly less than $308 million over the period 1991-2006. (Ibid., paras. 7.1203, 7.1204, 7.1209, and 7.1210)


(c) FSC/ETI and successor legislation: the tax exemptions and tax exclusions provided

to Boeing under FSC/ETI legislation, including the transition and grandfathering

provisions of the FSC Repeal and Extraterritorial Income Exclusion Act of 200049

(the "ETI Act") and the American Jobs Creation Act of 200450 (the "AJCA").51

12. The Panel was not persuaded that the European Communities had demonstrated that the

following federal measures constitute specific subsidies: (i) the USDOD's payments to Boeing

pursuant to procurement contracts under the 23 aeronautics RDT&E programmes at issue52; (ii) the

USDOD's grant of access to government facilities pursuant to procurement contracts under the

23 aeronautics RDT&E programmes at issue53; (iii) the USDOC's payments to joint

ventures/consortia in which Boeing participated through the ATP54; (iv) the allocation of intellectual

property rights under NASA/USDOD R&D procurement contracts and agreements55; (v) the

reimbursement of IR&D and B&P expenses under NASA/USDOD R&D procurement contracts and

agreements56; or (vi) the USDOL's payment to Edmonds Community College under the High Growth

Job Training Initiative.57

13. The Panel further found that the FSC/ETI and successor act subsidies constitute prohibited

export subsidies within the meaning of Articles 3.1(a) and 3.2 of the SCM Agreement.58 However, the

Panel considered that the European Communities had failed to demonstrate that the Washington State

tax measures provided for in House Bill 2294 are inconsistent with Articles 3.1(a) and 3.2 of the

SCM Agreement.59

14. The Panel determined that the above measures provided Boeing's LCA division with

subsidies amounting to "at least $5.3 billion" over the period 1989-2006.60 The Panel declined to take

account of the estimated future subsidy amounts associated with these measures.61

49Supra, footnote 18, item (ii). 50Supra, footnote 18, item (iii). 51Panel Report, paras. 7.1406 and 7.1431(f)(i). The Panel estimated the amount of the subsidy

provided to Boeing through the FSC/ETI legislation over the period 1989-2006 to be approximately $2.199 billion. (Ibid., para. 7.1429)

52Panel Report, paras. 7.1171 and 7.1432(c)(i). 53Panel Report, paras. 7.1171 and 7.1432(c)(ii). 54Panel Report, paras. 7.1257 and 7.1432(e)(i). 55Panel Report, paras. 7.1312 and 7.1432(d)(i). 56Panel Report, paras. 7.1354 and 7.1432(d)(ii). 57Panel Report, paras. 7.1375 and 7.1432(f)(i). 58Panel Report, paras. 7.1464 and 8.2(a). 59Panel Report, paras. 7.1590 and 8.2(b). 60Panel Report, para. 7.1433. 61Panel Report, paras. 7.153-7.158.


15. At the outset of its analysis of the European Communities' claims of serious prejudice, the

Panel made a number of findings regarding the relevant "markets", "subsidized products", and "like

products" for purposes of its analysis. The parties agreed, and the Panel found, that "the LCA market

is a global market geographically".62 The European Communities further divided the global LCA

market into five market segments, or product markets, on the basis of the flight range and seating

capacity of the various LCA families.63 Its serious prejudice claim focused on three of these product

markets: (i) the 100-200 seat LCA market

Documents

Judecata Airbus - Boeing