WT/DS426/10  
 
15 February 2013  
(13-0866)  Page: 1/3  
  Original: English  
 
 CANADA – MEASURES RELATING TO THE FEED-IN TARIFF PROGRAM 
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 SE TTLEMENT OF DISPUTES (DSU),  
AND UNDER RULE 23(1) OF THE WORKING PROCEDURES FOR APPELLATE REVIEW 
 The following notification, dated 11 Fe bruary 2013, from the Delegation of the 
European Union, is being circulated to Members. 
 
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Pursuant to Article 16.4 and Article 17.1 of the DSU 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 
Canada – Measures Relating to the Feed-In Tariff Program  (WT/DS426). 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 modify, reverse and/or declare moot 
and with no legal effect the findings and conclusi ons of the Panel and complete the analysis with 
respect to the following errors of law and legal interpretations contained in the Panel Report.1 
 The European Union submits that the Panel erred in the interpretation and application of 
Articles 2.1 and 2.2 of the TRIMs Agreement read in conjunction with Paragraph 1(a) of the 
Illustrative List in the Annex to the TRIMs Agr eement when finding that they do not preclude 
the application of Article III:8(a) of the GATT 1994 to the challenged measures.2 
 The European Union requests the Appellate Body to reverse the Panel's finding in 
paragraph 7.121, complete the analysis and fi nd that Article III:8(a) of the GATT 1994 was 
not applicable in the present case. As a consequence, the European Union requests the Appellate Body to uphold, although modifying the reasoning, the Panel's ultimate finding in paragraph 7.166 that the challenged measures are TRIMs falling within the scope of 
Paragraph 1(a) of the Illustrative List, and that in the light of Article 2.2 and the chapeau to 
Paragraph 1(a) of the Illustrative List, they are inconsistent with Article III:4 of the GATT 1994, and thereby also inconsistent with Article 2.1 of the TRIMs Agreement. 
 The Panel erred in its interpretation and a pplication of Article III:8(a) of the GATT 1994 
when finding that that the "Minimum Required Domestic Content Level" contained in the FIT Programme should be properly characterised as one of the "requirements governing" the 
alleged procurement of electricity for the pu rpose of Article III:8(a) of the GATT 1994.3  
                                               
1 Pursuant to Rule 23(2)(c)(ii)(C) of the Working Procedures for Appellate Review this Notice of Other 
Appeal includes an indicative list of the paragraphs of the Panel Report containing the alleged errors, without prejudice to the ability of the European Union to refer to other paragraphs of the Panel Report in the context of 
its appeal. 
2 Panel Report, paras. 7.114-7.121, and in  particular, paras. 7.119 and 7.120.  
3 Panel Report, paras. 7.126-7.128, and 7.152. WT/DS426/10 
 
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   The European Union requests the Appellate Body to reverse such finding, complete the 
analysis and find instead that the "Minimum Required Domestic Content Level" are not "requirements governing the procurement … of the products purchased" in the present case. As a consequence of the Appellate Body's reversal of the Panel's finding in paragraph 7.128, 
the European Union requests the Appellate Body to reverse the Panel's finding in 
paragraph 7.152 that "(ii) the "Minimum Required Domestic Content Level" prescribed under the FIT Programme, and effected through the FIT and microFIT Contracts, is one of the 
"requirements governing" the Government of Ontario's "procurement" of electricity", and 
find instead that the "Minimum Required Domestic Content Level" does not constitute "requirements governing the procurement … of the products purchased" in the present case.  
 The Panel erred in its interpretation of Arti cle III:8(a) of the GATT 1994 when stating that 
the ordinary meaning of the terms "governmental purposes" is relatively broad and may 
encompass the meaning proposed by Canada, i.e., that a purchase for "governmental purposes" may exist whenever a government purchases a product for a stated aim of the 
government.4 The European Union requests the Appellate Body to reverse this statement or, 
at the very least, to declare it moot and with no legal effect. In addition, should the Appellate Body reverse the Panel's finding that the Government of Ontario's procurement of 
electricity under the FIT Programme is undertaken "with a view to commercial resale",5 the 
European Union requests the Appellate Body to modify and/or reverse the Panel's reasoning6 as to the meaning of "governmenta l purposes" in view of the arguments raised 
by the European Union as to the proper interpretation of those terms, complete the analysis 
and find that the Government of Ontario's procurement of electricity under the FIT 
Programme is not undertaken for "governmental purposes". As a consequence, the Panel's findings in paragraph 7.152 should also be amended accordingly to reflect another reason 
why Canada could not rely on Article III:8(a) of the GATT 1994 to exclude the application of 
Article III:4 of the GATT 1994 to the "Minimum Required Domestic Content Level". 
 The Panel erred in its application of Article 1. 1(b) of the SCM Agreement as well as did not 
make an objective assessment of the matter in accordance with Article 11 of the DSU when 
finding that the European Union had failed to established that the FIT Programme and its related contracts confer a "benefit" under Article 1.1(b) of the SCM Agreement.7 In 
particular: 
(a) the Panel erred in the application of Arti cle 1.1(b) of the SCM Agreement to the 
facts of this case.
8 The "prevailing market conditions" in Ontario, as evidenced by 
the purpose of the FIT Programme, showed that the FIT generators would not be 
able to obtain the necessary remuneration to be present in such marketplace;  
(b) the Panel did not make an objective assessment of the matter in accordance with 
Article 11 of the DSU by failing to consider the totality of the evidence, by 
providing incoherent reasoning and exercising false judicial economy, when finding 
that, even on the basis of a hypothetic al "market" counterfactual as the one 
suggested in its observations, the European Union had failed to establish the existence of "benefit".
9 
In view of these errors, the European Union requests the Appellate Body to reverse  the 
Panel's finding in paragraph 7.328(ii) that the European Union failed to establish the existence of benefit in the present case, that the challenged measures conferred a "benefit" under Article 
1.1(b) of the SCM Agreement, complete the analysis  on the basis of the Panel's findings and 
uncontested facts on the record, and find that the challenged measures conferred a "benefit" 
under Article 1.1(b) of the SCM Agreement. As a consequence, the Panel's ultimate conclusion that 
the European Union had failed to establish that the FIT Programme and its related contracts 
constitute subsidies or envisage the granting of su bsidies inconsistent with Articles 3.1(b) and 3.2 
                                               
4 Panel Report, para. 7.139, first sentence (and the follow-up statement in para. 7.140, second 
sentence). 
5 Panel Report, para. 7.151. 
6 Panel Report, paras. 7.138-7.145. 
7 Panel Report, para. 7.328(ii). 
8 Panel Report, paras. 7.276-7.327. 
9 Panel Report, paras. 7.322-7.328(ii). WT/DS426/10 
 
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  of the SCM Agreement is also in error.10 The European Union requests the Appellate Body to also 
reverse  such a conclusion, complete the analysis  on the basis of the Panel's findings and 
uncontested facts on the record, and find that the challenged measures amount to subsidies 
prohibited under Articles 3.1(b) and 3.2. Accordingly, the European Union requests the Appellate 
Body to recommend  that Canada withdraws its prohibited subsidies without delay (and, in no case, 
n o  m o r e  t h a n  w i t h i n  9 0  d a y s ) ,  a s  r e q u i r e d  b y  Article 4.7 of the SCM Agreement. Should the 
Appellate Body be unable to complete the analysis under any of the requests made by the 
European Union, the European Union requests the Appellate Body to declare moot and with no 
legal effect  the Panel's findings and conclusions in paragraphs 7.328(ii) and 8.7.11   
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10 Panel Report, para. 8.7. 
11 The European Union observes that on 11 February 2013 Japan appealed the panel report in Canada – 
Certain Measures Affecting the Renewable Energy Generation Sector (WT/DS412) . That report contains 
identical findings and conclusions as those contained in  para. 7.328(ii) and para. 8.7 in the Panel Report in 
DS426. The European Union incorporates hereto Japan's Notice of Other Appeal dated 11 February 2013 with 
respect to the errors of law and lega l interpretations, including any request for completing the analysis, made 
in connection with para. 7.328(ii) of the panel report in DS412.