WT/DS618/2  
 
13 October  2023 
(23-6931) Page: 1/5 
  Original: English  
 
EUROPEAN UNION – COUNTERVAILING DUTIES ON IMPORTS OF BIODIESEL FROM 
INDONESIA  
REQUEST FOR THE ESTABLISHMENT OF A PANEL  BY INDONESIA  
The following communication, dated 13 October  2023, from the delegation of Indonesia  to the 
Chairperson of the Dispute Settlement Body, is circulated pursuant to Article 6.2 of the DSU.  
 
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On 11 August 2023, Indonesia requested consultations with the European Union ("EU") pursuant to 
Articles 1 and 4 of the Understanding o n Rules and Procedures Governing the Settlement of Disputes 
("DSU"), Article 30 of the Agreement on Subsidies and Countervailing Measures ("SCM Agreement"), 
and Article XXIII of the General Agreement on Tariffs and Trade 1994 ("GATT 1994"), concerning 
the imposition of countervailing duties on imports of biodiesel from Indonesia.  
The consultations took place in Geneva on 4 October 2023 and failed to resolve the dispute. Hence, 
Indonesia is requesting the establishment of a Panel pursuant to Article 4.7 and 6 of the DSU.  
The measures at issue are the definitive countervailing duties on imports of biodiesel from Indonesia 
as well as the underlying investigation that led to the imposition of these measures (hereafter 
"countervailing measures"), which include, a mongst others, the actions taken or omitted by the 
European Commission ("Commission") during the course of – or in relation to – the investigations.  
The countervailing measures are evidenced by the Commission Implementing Regulation (EU) 
2019/2092 of 28 No vember 2019 imposing a definitive countervailing duty on imports of biodiesel 
originating in Indonesia1 ("the Biodiesel Definitive CVD Regulation") as well as the Commission 
Implementing Regulation (EU) 2019/1344 of 12 August 2019 imposing a provisional countervailing 
duty on imports of biodiesel originating in Indonesia ("the Biodiesel Provisional CVD Regu lation").2 
The legality of countervailing measures should also be reviewed in light of the findings and 
determination reached by the EU in the regulations imposing anti -subsidy measures on imports of 
biodiesel from Argentina.3  
Indonesia is concerned that the Biodiesel Definitive CVD Regulation, the Biodiesel Provisional 
CVD Regulation and the investigation leading to the imposition of the countervailing measures are 
inconsistent with the following provisions of the SCM Agreement and the GATT  1994:  
 
1 Commission Implementing Regulation (EU) 2019/2092 of 28 November 2019 imposing a definitive 
countervailing duty on imports of biodiesel originating in Indonesia, Official Journal of the European Union, 
L 317, p. 42 -95, dated 9 December 2019.  
2 Commission Implementing Regulation (EU) 2019/1344 of 12 August 2019 imposing a provisional 
countervailing duty on imports of biodiesel originating in Indonesia, Official Journal of the European Union, 
L 212, p. 1 -52, dated 13 August 2019.  
3 Commission Implementing Decision (EU) 2019/245 of 11 February 2019 accepting undertaking offers 
following the imposition of definitive countervailing duties on  imports of biodiesel originating in Argentina. 
Official Journal of the European Union, L 40, p. 71 -77, dated 12 February 2019; Commission Implementing 
Regulation (EU) 2019/244 of 11 February 2019 imposing a definitive countervailin g duty on imports of 
biodiesel originating in Argentina, Official Journal of the European Union, L 40, p. 1 -70, dated 
12 February  2019. WT/DS618/2  
 
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  1. DETERMINATIONS CONCERNING THE OIL PALM PLANTATION FUND ("OPPF")  
(a) Article 1.1(a)(1)(i) of the SCM Agreement because the EU determined that OPPF 
payments constituted a financial contribution by a public body;  
(b) Article 1.1(a)(1)(i) of the SCM Agr eement because the EU determined that OPPF 
payments constituted grants and not purchases of biodiesel by the Government of 
Indonesia;  
(c) Article 1.1(b) of the SCM Agreement because the EU determined that  OPPF 
payments conferred a benefit on biodiesel prod ucers and in particular because the 
EU selected a wrong counterfactual to analyse the situation of the recipient on the 
marketplace, absent the financial contribution; wrongly concluded that absent the 
OPPF payments, the biodiesel reference price would be lower; failed to consider the 
export levies paid by biodiesel producers; and failed to consider that the benefit, if 
any, was passed through to biodiesel blenders;  
(d) Articles 19.1, 19.4 and 21.1 of the SCM Agreement, Article VI:3 and Article XVI:1 of 
the GATT 1994 because the EU failed to properly allocate the alleged subsidy 
amounts resulting from OPPF payments and thus failed  to accurately determine the 
per unit subsidy amount and to impose countervailing duties at the level not 
exceeding that amount;  
(e) Articles 1.1(a)(1)(ii), 14, 19.3, 19.4 and 32.1 of the SCM Agreement and Article VI:3 
of the GATT 1994 because the EU failed to adjust the amount of the alleged subsidy 
to account for discounts granted as well as export levies, transport and credit cos ts 
and thus failed to adequately explain its benefit calculation method,  to ascertain as 
accurately as possible the amount of subsidization bestowed on the investigated 
products and to levy countervailing duties in the appropriate amounts;  
(f) Articles 1.2 , 2.1 and 2.4 of the SCM Agreement because the EU determined that 
through a set of measures the Government of Indonesia provided support to the 
biodiesel industry including through direct transfer of funds via the 'Biodiesel Subsidy 
Fund' conferring a bene fit to the recipients which is de jure  and de facto  specific;  
(g) Articles 22.3, 22.4 and 22.5 of the SCM Agreement because on multiple occasions 
throughout its analysis of OPPF payments the EU failed to adequately state the 
reasons on which its conclusion s are based and failed to provide sufficient 
explanations why certain claims made by interested parties were rejected.  
2. DETERMINATIONS CONCERNING THE ALLEGED GOVERNMENT SUPPORT FOR THE 
PROVISION OF CRUDE PALM OIL ("CPO")  
(a) Article 1.1(a)(1)(iv) of the SCM  Agreement because the EU determined that the 
provision of CPO located on Indonesian soil to the Indonesian biodiesel industry is a 
function which is normally vested in the government;  
(b) Article 1.1(a)(1)(iv) of the SCM Agreement because the EU determine d that through 
a set of measures, including the export taxes and levy, and by de facto  acting as a 
price setter on the market the Government of Indonesia 'induced' the domestic CPO 
producers to sell CPO locally and 'entrusted' or 'directed' them to provide  CPO to 
biodiesel producers in Indonesia for less than adequate remuneration;   
(c) Article 1.1(b) and Article 14(d) of the SCM Agreement because the EU disregarded, 
without a reasoned and adequate explanation, domestic prices for CPO in Indonesia; 
selected  a benchmark that neither reflects the prevailing market conditions in 
Indonesia, nor the conditions pursuant to which the goods or services at issue would, 
under market conditions, be exchanged in Indonesia; and thus determined that CPO 
suppliers and prod ucers provided CPO for less than adequate remuneration resulting 
in a benefit being conferred;  WT/DS618/2  
 
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  (d) Articles 12.7 and 12.11 of the SCM  Agreement because the EU decided to resort to 
facts available with regard to PT Perkebunan Nusantara ("PTPN") as well as with 
regard to all producers and distributors of CPO based, in particular, on PTPN 's alleged 
non-cooperation and because the EU establ ished facts available in a way that did 
not reasonably replace the allegedly missing information;  
(e) Articles 1.1(a)(2) and 32.1 of the SCM Agreement and Article XVI:1 of the GATT 
1994 because the EU determined that the Government of Indonesia put in plac e a 
set of measures, including direct subsidies to CPO producers, in order to intervene 
in the market ensuring a particular result, i.e. that the biodiesel producers benefit 
from artificially low prices for CPO and that through that set of measures, the 
Government of Indonesia provides income or price support to the biodiesel industry;  
(f) Articles 1.2, 2.1 and 2.4 of the SCM Agreement because the EU determined that the 
provision of CPO and provision of income or price support to the biodiesel industry 
are specific.  
(g) Articles 22.3, 22.4 and 22.5 of the SCM Agreement because on multiple occasions 
throughout its analysis of alleged provision of CPO and income or price support to 
the biodiesel industry the EU failed to adequately state the reasons on which i ts 
conclusions are based and by failing to provide sufficient explanations why certain 
claims made by interested parties were rejected.  
3. DETERMINATIONS CONCERNING THE EXISTENCE OF A THREAT OF MATERIAL 
INJURY AND A CAUSAL LINK  
(a) Articles 15.1 and 15.2 of t he SCM Agreement because the EU failed to ensure price 
comparability when examining the effect of imports from Indonesia on the prices of 
domestic like products, failed to establish price undercutting for the product as a 
whole and thus failed to establish  the existence of significant price undercutting by 
means of Indonesian imports;  
(b) Articles 15.1 and 15.2 of the SCM Agreement because the EU failed to make an 
objective examination, on the basis of positive evidence, of the effect of the allegedly 
subsidized imports on prices of EU producers, and thus improperly found significant 
price undercutting and price depression;  
(c) Articles 15.1, 15.4, 15.7 and 15.8 of the SCM Agreement because the EU failed to 
make an objective examination, on the basis of pos itive evidence, of a threat of 
injury and of a fragile economic condition of its domestic industry, in particular by 
failing to make an objective examination, on the basis of positive evidence, of the 
factors having a bearing on the state of the domestic i ndustry, including those listed 
in Articles 15.4 and 15.7 of the SCM Agreement;  
(d) Articles 15.1, 15.4, 15.7 and 15.8  of the SCM  Agreement because the EU failed to 
make an objective examination, on the basis of positive evidence, of the nature of 
the subsidies in question and the trade effects likely to arise therefrom;  
(e) Articles 15.1, 15.4, 15.7 and 15.8 of the SCM Agreement be cause the EU failed to 
make an objective examination, on the basis of positive evidence, of whether 
Indonesian imports were entering the EU at prices that will have a significant 
depressing or suppressing effect on domestic prices, and would likely increas e 
demand for further imports;  
(f) Articles 15.1, 15.4, 15.7 and 15.8 of the SCM Agreement because the EU failed to 
make an objective examination, on the basis of positive evidence, of a rate of 
increase of Indonesian imports into the EU market indicating t he likelihood of 
substantially increased importation;  WT/DS618/2  
 
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  (g) Articles 15.1, 15.4, 15.7 and 15.8 of the SCM Agreement because the EU failed to 
make an objective examination, on the basis of positive evidence, of freely 
disposable production capacity in Indones ia and because the EU improperly 
determined that Indonesian producers are likely to direct their spare capacities to 
the Union market, causing further injury to the Union industry;  
(h) Articles 15.1, 15.2, 15.5 and 15.7 of the SCM Agreement because the EU failed to 
make an objective examination, on the basis of positive evidence, of the volume of 
allegedly subsidized imports from Indonesia, in particular, by disregarding the fact 
that there was no correlation between the evolution of Indonesian imports and the 
evolution of the Union industry's market shares or profitability, either during or after 
the period under consideration;  
(i) Articles 15.1, 15.5, 15.7 and 15.8 of the SCM Agreement because the EU failed to 
make an objective examination, on the basis of  positive evidence, that allegedly 
subsidized imports are, through the effects of subsidization, threatening to cause 
injury to the domestic industry; and because the EU failed to ensure that the threat 
of injury caused to the domestic industry by other fa ctors, such as imports from 
Argentina, was not attributed to allegedly subsidized imports;  
(j) Articles 12.1, 12.3 and 15.1 of the SCM Agreement because the EU failed to provide 
the necessary information to interested parties, including necessary informati on to 
propose alternative methodologies to determine the existence of price undercutting 
and because the EU provided a late disclosure of essential information concerning, 
among others, price elasticity and changes in the Union market;  
(k) Articles 12.1, 1 2.3, 12.4 and 12.4.1 of the SCM Agreement because the EU failed to 
provide a meaningful non -confidential summary of the EU producers' responses to 
the post -investigation period questionnaire;  
(l) Articles 15.1, 15.8, 22.3, 22.4 and 22.5 of the SCM Agreemen t because the EU based 
its threat of injury determination on information provided by one interested party, 
the European Biodiesel Board ("EBB"), while disregarding contradictory information 
provided by the Government of Indonesia and Indonesian exporters;  
(m) Articles 12.3, 22.3, 22.4 and 22.5 of the SCM Agreement because in its threat of 
injury determination the EU provided explanations for some trends concerning the 
Union industry's profitability, when they supported its conclusion of a threat of injury 
while ignoring other trends that did not support this conclusion and because the EU 
failed to explain why arguments made by interested parties in this regard were 
rejected.  
4. REJECTION OF A PRICE UNDERTAKING OFFER  
(a) Articles 15.8, 18.3, and 19.3 of the SCM Agreement and Articles I:1 and VI of the 
GATT 1994 because the EU considered that the monitoring of the undertaking 
offered by an Indonesian exporting producer to be impracticable and unworkable 
and because the EU rejected such offer while accepting it fro m Argentinean exporting 
producers, thus treating imports of the same product from different WTO Members 
differently.  
As a result of these inconsistencies, the EU's measures also appear to nullify or impair the benefits 
accruing to Indonesia, directly or in directly, under the covered agreements.  
Accordingly, Indonesia respectfully requests the Dispute Settlement Body to establish a panel to 
examine this matter, with standards terms of reference as set out in Article 7.1 of the DSU.  
The Government of Indonesi a reserves the right to raise additional factual and legal issues during 
the course of the consultations and in any request for the establishment of a Panel, in light of the 
information the European Union may provide.  WT/DS618/2  
 
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  This panel request relates to the meas ures at issue and any amendments, supplements, extensions, 
replacement measures, renewal measures, implementing measures, and any future action or other 
measures the EU may take in connection with the measures at issue.  
Indonesia asks that this request be placed on the agenda for the meeting of the Dispute Settlement 
Body to be held on 26 October 2023.  
 
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