European
COMMUNITIES
AND CERTAIN MEMBER STATES - MEASURES AFFECTING TRADE IN
LARGE CIVIL AIRCRAFT
Recourse to Article 21.5 of the DSU by THE european
union
Notification of an Appeal by the European Union[1]
under Article 16.4 and Article 17 of the Understanding
on Rules and Procedures Governing
the Settlement of Disputes (DSU), Article 7.6 of the Agreement on
Subsidies and Countervailing Measures (SCM Agreement) and under Rule 20(1) of
the
Working Procedures for Appellate Review
The following communication, dated 6 December
2019, from the delegation of the European Union, is being circulated to
Members.
_______________
Pursuant to Article
16.4 and Article 17.1 of the DSU, and Article 7.6 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 European
Union – Measures Affecting Trade in Large Civil Aircraft (Recourse to Article
21.5 of the DSU by the European Union) (WT/DS316/RW2). Pursuant to
Rule 20(1) of the Working Procedures for
Appellate Review, the European Union simultaneously files this
Notice of Appeal with the Appellate Body Secretariat.
The European Union is restricting its appeal to those errors that it
believes constitute serious errors of law and legal interpretation that need to
be corrected. Non-appeal of an issue does not signify agreement therewith.
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:[2]
1. The Panel erred in the interpretation and application of Articles
1.1 and 7.8 of the SCM Agreement when finding
that the full repayment of the UK A350XWB Member State Financing ("MSF") loan
failed to achieve the withdrawal of the subsidy.[3]
2. The Panel erred in the interpretation and application of Articles
1.1 and 7.8 of the SCM Agreement when finding that amendment of the terms
of a subsidy to align it with a contemporaneous market benchmark does not "withdraw
the subsidy".[4]
[1] Unless the context
otherwise requires, as a matter of WTO law, references in this document (and
any subsequent document filed in this dispute) to the European Union include
the "certain member States" (France, Germany, Spain, and the
United Kingdom) against which the United States commenced this dispute.
[2] Paragraph numbers provided in footnotes to the following
description of the errors of the Panel are intended to indicate the primary
instance of the errors. These errors have consequences throughout the report,
and the European Union also appeals all findings and conclusions deriving from
or relying on the appealed errors, and in particular the relevant findings and
conclusions in Sections 7 and 8 of the Panel Report. The European Union also
emphasises that the paragraphs listed in this Notice of Appeal comprise only an
"indicative list", pursuant to Rule 20(2)(d)(iii) of the Working
Procedures for Appellate Review.
[3] Panel Report, paras. 7.188-7.190, 7.195-7.204, 7.259(b), 8.1(b)(ii).
[4] Panel Report, paras. 7.142-7.151, 7.158, 7.163-7.164, 7.217-7.219, 7.234,
7.259(a)(ii), 7.259(c)(i), 8.1(b)(i), 8.1(b)(iii).