WT/DS316/30  
 
24 November 2016  
(16-6462) Page: 1/1 
  Original: Englis h 
 
 EUROPEAN COMMUNITIES  AND CERTAIN MEMBER S TATES – MEASURES AFFECTING 
TRADE IN LARGE CIVIL  AIRCRAFT  
RECOURSE TO ARTICLE 21.5 OF THE DSU BY T HE UNITED STATES  
NOTIFICATION OF AN OTHER APPEAL BY THE UNITED STATES  
UNDER ARTICLE 16.4 A ND ARTICLE 17 OF THE  UNDERST ANDING ON RULES  
AND PROCEDURES GOVER NING THE SETTLEMENT OF DISPUTES (DSU),  
AND UNDER RULE 2 3(1) OF THE WORKING P ROCEDURES FOR APPELL ATE REVIEW  
The following communication, dated 10 November  2016, from the delegation of the United States , 
is being circulat ed to Members.  
 
_______________  
 
 
Pursuant to Rule 23(1) of the Working Procedures for Appellate Review, the United States hereby 
notifies the Appellate Body of its decision to appeal certain issues of law covered in the Report of 
the Panel in European Com munities and Certain Member States – Measures Affecting Trade in 
Large Civil Aircraft: Recourse to Article 21.5 of the DSU by t he United States 
(WT/DS316/RW  & Add.1) ( "Panel Report ") and certain legal i nterpretations developed by 
the Panel.  
 
1. The United States seeks review by the Appellate Body of the Panel's finding that the 
United  States failed to establish that the French, German, Spanish, and UK LA/MSF subsidies for 
Airbus's A350 XWB constituted prohibited import substitution subsidies, within the mea ning of 
Article 3.1(b) of the Agreement on Subsidies and Countervailing Measures ( "SCM Agreement ").1  
While the United States agrees with the Panel's interpretation of Article 3.1(b), a competing 
interpretation is under consideration in another dispute, US  – Conditional Tax Incentives for 
Large  Civil Aircraft (DS487). If the Appellate Body were to determine that this competing 
interpretation of Article 3.1(b) is correct, then the Panel here erred in its interpretation and 
application of Article  3.1(b) and i ts finding that the French, German, Spanish, and UK LA/MSF for 
the A350 XWB do not constitute import substitution subsidies prohibited by Article 3.1(b). 
The paragraphs relating to these errors include paragraphs 6.745 -6.791 of the Panel Report.  
 
2. In addition, the United States conditionally appeals the Panel's findings that the ex ante lives 
of the French, German, Spanish, and UK LA/MSF subsidies for the A320, A330/A340 Basic, and 
A330-200 had passively "expired " before December 1, 2011, as a result of the amortization of 
benefit.2  These conclusions are in error and are based on erroneous findings of law and related 
legal interpretations, including an erroneous interpretation and application of Article 1.1(b) of the 
SCM Agreement. The paragraphs relatin g to these errors include paragraphs 6.872 -6.879 of the 
Panel Report. However, the United States only requests the Appellate Body to address this issue if 
it modifies or reverses the Panel's finding that the passive "expiry " events cited by the 
European  Union did not satisfy its obligation to "withdraw the subsidy " for purposes of Article 7.8 
of the SCM Agreement.3  
 
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1 See Panel Report, paras. 6.790, 7.1(c)(ii).  
2 See Panel Report, paras. 6.879, 7.1(d)(ii) and (iii).  
3 See Panel Report, paras. 6. 1094, 7.1(d)(viii).