United States – Conditional Tax Incentives
for Large Civil Aircraft

NOTIFICATION OF AN OTHER APPEAL BY the EUROPEAN UNION
UNDER ARTICLE 16.4 AND ARTICLE 17 OF THE UNDERSTANDING ON RULES
AND PROCEDURES GOVERNING THE SETTLEMENT OF DISPUTES (DSU),
AND UNDER RULE 20(1) OF THE WORKING PROCEDURES FOR APPELLATE REVIEW

The following communication, dated 17 January 2017, from the delegation of the European Union, is being circulated to Members.

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Pursuant to Articles 16.4 and 17.1 of the DSU and Article 4.8 of the SCM Agreement, the European Union hereby notifies to the Dispute Settlement Body its decision to appeal to the Appellate Body certain issues of law covered in the Panel Report and certain legal interpretations developed by the Panel in the dispute United States – Conditional Tax Incentives for Large Civil Aircraft (WT/DS487). Pursuant to Rule 23(1) of the Working Procedures for Appellate Review, the European Union simultaneously files this Notice of Other Appeal with the Appellate Body Secretariat.

For the reasons to be further elaborated in its submissions to the Appellate Body, the European Union appeals, and requests the Appellate Body to reverse, modify or declare moot and of no legal effect, the findings, conclusions and recommendations of the Panel, with respect to the following errors of law and legal interpretations contained in the Panel Report^[1]:

1.    The Panel erred in the interpretation of Article 3.1(b) of the SCM Agreement by requiring the complaining Member to demonstrate that the measure at issue "per se and necessarily exclude{s}" the use of imported goods, and on that basis, finding that the First Siting Provision,^[2] set out in Section 2 of Washington State Engrossed Substitute Senate Bill 5952 ("ESSB 5952"), does not make the subsidies subject to that condition de jure contingent on the use of domestic over imported goods.^[3]

2.    The Panel erred in the application of Article 3.1(b) of the SCM Agreement in finding that the First Siting Provision does not make the subsidies subject to that condition^[4] de jure contingent on the use of domestic over imported goods.^[5]

3.    The Panel erred in the interpretation of Article 3.1(b) of the SCM Agreement by requiring the complaining Member to demonstrate that the measure at issue "per se and necessarily exclude{s}" the use of imported goods, and on that basis, finding that the First Siting Provision, considered alone, does not make the subsidies subject to that condition^[6] de facto contingent on the use of domestic over imported goods.^[7] The European Union requests the Appellate Body to consider this appeal only if it does not find (in accordance with the appeals described in paragraph 1 or 2, above) that the First Siting Provision, considered alone, makes the subsidies subject to it de jure contingent on the use of domestic over imported goods in violation of Article 3.1(b).

4.    The Panel failed to make an objective assessment under Article 11 of the DSU in finding that the First Siting Provision, considered alone, does not make the subsidies subject to that condition^[8] de facto contingent on the use of domestic over imported goods, within the meaning of Article 3.1(b) of the SCM Agreement.^[9] The European Union requests the Appellate Body to consider this appeal only if it does not find (in accordance with the appeals described in paragraph 1 or 2, above) that the First Siting Provision, considered alone, makes the subsidies subject to it de jure contingent on the use of domestic over imported goods in violation of Article 3.1(b).

5.    The Panel erred in the interpretation of Article 3.1(b) of the SCM Agreement by requiring the complaining Member to demonstrate that the measure at issue "per se and necessarily exclude{s}" the use of imported goods, and on that basis, finding that the Second Siting Provision,^[10] set out in Sections 5 and 6 of ESSB 5952, considered alone or together with the First Siting Provision, does not make the B&O tax rate reduction (in respect of the 777X) de jure contingent on the use of domestic over imported goods.^[11]

6.    The Panel erred in the application of Article 3.1(b) of the SCM Agreement in finding that the Second Siting Provision, considered alone or together with the First Siting Provision, does not make the B&O tax rate reduction (in respect of the 777X) de jure contingent on the use of domestic over imported goods.^[12]

7.    The Panel failed to make an objective assessment under Article 11 of the DSU, in finding that the Second Siting Provision, considered alone or together with the First Siting Provision, does not make the B&O tax rate reduction (in respect of the 777X) de jure contingent on the use of domestic over imported goods, within the meaning of Article 3.1(b) of the SCM Agreement.^[13] In particular, the Panel's findings lacked a sufficient evidentiary basis.

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