UNITED STATES – MEASURES AFFECTING TRADE IN LARGE CIVIL AIRCRAFT (SECOND COMPLAINT)
Document: AB-2011-3 Report of the Appellate Body
Date: 12 March 2012
Document codes: WT/DS353/AB/R
Complainant: EU
Respondent: U.S.
Third parties: Australia, Brazil, Canada, China, Japan, South Korea
Dispute stage: Implementation & Compliance
Agreements cited: Art. 3.1, 3.2, 5, 6.3, 1.1, 2  Subsidies and Countervailing Measures (SCM)Art. III:4  GATT 1994

UNITED STATES – MEASURES AFFECTING TRADE
IN LARGE CIVIL AIRCRAFT
(SECOND COMPLAINT)

AB-2011-3

Report of the Appellate Body

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Short Title Full case title and citation
EC – Bananas III
(Article 21.5 – Ecuador II) /
EC – Bananas III
(Article 21.5 – US)
Appellate Body Reports, European Communities – Regime for the
Importation, Sale and Distribution of Bananas – Second Recourse to
Article 21.5 of the DSU by Ecuador, , adopted
11 December 2008, and Corr.1 / European Communities – Regime for the
Importation, Sale and Distribution of Bananas – Recourse to Article 21.5 of
the DSU by the United States, and Corr.1, adopted

EC – Bed Linen Appellate Body Report, European Communities – Anti-Dumping Duties on
Imports of Cotton-Type Bed Linen from India, , adopted
12 March 2001, DSR 2001:V, 2049
EC – Bed Linen
(Article 21.5 – India)
Appellate Body Report, European Communities – Anti-Dumping Duties on
Imports of Cotton-Type Bed Linen from India – Recourse to Article 21.5 of
the DSU by India, , adopted 24 April 2003, DSR
2003:III, 965
EC – Computer Equipment Appellate Body Report, European Communities – Customs Classification of
Certain Computer Equipment, , ,
, adopted 22 June 1998, DSR 1998:V, 1851
EC – Countervailing Measures
on DRAM Chips
Panel Report, European Communities – Countervailing Measures on
Dynamic Random Access Memory Chips from Korea, , adopted
3 August 2005, DSR 2005:XVIII, 8671
EC – Fasteners (China) Appellate Body Report, European Communities – Definitive Anti-Dumping
Measures on Certain Iron or Steel Fasteners from China, WT/DS397/AB/R,
adopted 28 July 2011
EC – Hormones Appellate Body Report, EC Measures Concerning Meat and Meat Products
(Hormones), WT/DS26/AB/R, WT/DS48/AB/R, adopted 13 February 1998,
DSR 1998:I, 135
EC – Poultry Appellate Body Report, European Communities – Measures Affecting the
Importation of Certain Poultry Products, WT/DS69/AB/R, adopted 23 July
1998, DSR 1998:V, 2031
EC – Sardines Appellate Body Report, European Communities – Trade Description of
Sardines, WT/DS231/AB/R, adopted 23 October 2002, DSR 2002:VIII, 3359
EC – Selected Customs Matters Appellate Body Report, European Communities – Selected Customs Matters,
WT/DS315/AB/R, adopted 11 December 2006, DSR 2006:IX, 3791
EC – Tube or Pipe Fittings Appellate Body Report, European Communities – Anti-Dumping Duties on
Malleable Cast Iron Tube or Pipe Fittings from Brazil, WT/DS219/AB/R,
adopted 18 August 2003, DSR 2003:VI, 2613
EC and certain member States
– Large Civil Aircraft
Appellate Body Report, European Communities and Certain Member States –
Measures Affecting Trade in Large Civil Aircraft, WT/DS316/AB/R, adopted
1 June 2011
EC and certain member States
– Large Civil Aircraft
Panel Report, European Communities and Certain Member States – Measures
Affecting Trade in Large Civil Aircraft, WT/DS316/R, adopted 1 June 2011,
as modified by Appellate Body Report, WT/DS316/AB/R
Guatemala – Cement I Appellate Body Report, Guatemala – Anti-Dumping Investigation Regarding
Portland Cement from Mexico, WT/DS60/AB/R, adopted 25 November
1998, DSR 1998:IX, 3767
India – Patents (US) Appellate Body Report, India – Patent Protection for Pharmaceutical and
Agricultural Chemical Products, WT/DS50/AB/R, adopted 16 January 1998,
DSR 1998:I, 9
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Short Title Full case title and citation
US – Carbon Steel Appellate Body Report, United States – Countervailing Duties on Certain
Corrosion-Resistant Carbon Steel Flat Products from Germany,
WT/DS213/AB/R and Corr.1, adopted 19 December 2002, DSR 2002:IX,
3779
US – Continued Zeroing Appellate Body Report, United States – Continued Existence and Application
of Zeroing Methodology, WT/DS350/AB/R, adopted 19 February 2009
US – Continued Zeroing Panel Report, United States – Continued Existence and Application of
Zeroing Methodology, WT/DS350/R, adopted 19 February 2009, as modified
as Appellate Body Report WT/DS350/AB/R
US – Countervailing Duty
Investigation on DRAMS
Appellate Body Report, United States – Countervailing Duty Investigation on
Dynamic Random Access Memory Semiconductors (DRAMS) from Korea,
WT/DS296/AB/R, adopted 20 July 2005, DSR 2005:XVI, 8131
US – Countervailing Measures
on Certain EC Products
Appellate Body Report, United States – Countervailing Measures
Concerning Certain Products from the European Communities,
WT/DS212/AB/R, adopted 8 January 2003, DSR 2003:I, 5
US – Export Restraints Panel Report, United States – Measures Treating Exports Restraints as
Subsidies, WT/DS194/R and Corr.2, adopted 23 August 2001, DSR 2001:XI,
5767
US – FSC Appellate Body Report, United States – Tax Treatment for "Foreign Sales
Corporations", WT/DS108/AB/R, adopted 20 March 2000, DSR 2000:III,
1619
US – FSC Panel Report, United States – Tax Treatment for "Foreign Sales
Corporations", WT/DS108/R, adopted 20 March 2000, as modified by
Appellate Body Report WT/DS108/AB/R, DSR 2000:IV, 1675
US – FSC
(Article 21.5 – EC)
Appellate Body Report, United States – Tax Treatment for "Foreign Sales
Corporations" – Recourse to Article 21.5 of the DSU by the
European Communities, WT/DS108/AB/RW, adopted 29 January 2002, DSR
2002:I, 55
US – FSC
(Article 21.5 – EC)
Panel Report, United States – Tax Treatment for "Foreign Sales
Corporations" – Recourse to Article 21.5 of the DSU by the
European Communities, WT/DS108/RW, adopted 29 January 2002, as
modified by Appellate Body Report WT/DS108/AB/RW, DSR 2002:I, 119
US – FSC
(Article 21.5 – EC II)
Appellate Body Report, United States – Tax Treatment for "Foreign Sales
Corporations" – Second Recourse to Article 21.5 of the DSU by the
European Communities, WT/DS108/AB/RW2, adopted 14 March 2006, DSR
2006:XI, 4721
US – FSC
(Article 21.5 – EC II)
Panel Report, United States – Tax Treatment for "Foreign Sales
Corporations" – Second Recourse to Article 21.5 of the DSU by the
European Communities, WT/DS108/RW2, adopted 14 March 2006, as
upheld by Appellate Body Report WT/DS108/AB/RW2, DSR 2006:XI, 4761
US – FSC
(Article 22.6 – US)
Decision by the Arbitrator, United States – Tax Treatment for "Foreign Sales
Corporations" – Recourse to Arbitration by the United States under
Article 22.6 of the DSU and Article 4.11 of the SCM Agreement,
WT/DS108/ARB, 30 August 2002, DSR 2002:VI, 2517
US – Gambling Appellate Body Report, United States – Measures Affecting the Cross-Border
Supply of Gambling and Betting Services, WT/DS285/AB/R, adopted 20
April 2005, DSR 2005:XII, 5663 (Corr.1, DSR 2006:XII, 5475)
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Short Title Full case title and citation
US – Upland Cotton
(Article 21.5 – Brazil)
Appellate Body Report, United States – Subsidies on Upland Cotton –
Recourse to Article 21.5 of the DSU by Brazil, WT/DS267/AB/RW, adopted
20 June 2008, DSR 2008:III, 809
US – Upland Cotton
(Article 21.5 – Brazil)
Panel Report, United States – Subsidies on Upland Cotton – Recourse to
Article 21.5 of the DSU by Brazil, WT/DS267/RW and Corr.1, adopted 20
June 2008, as modified by Appellate Body Report WT/DS267/AB/RW, DSR
2008:III, 997 to DSR 2008:VI, 2013
US – Wheat Gluten Appellate Body Report, United States – Definitive Safeguard Measures on
Imports of Wheat Gluten from the European Communities, WT/DS166/AB/R,
adopted 19 January 2001, DSR 2001:II, 717
US – Wool Shirts and Blouses Appellate Body Report, United States – Measure Affecting Imports of Woven
Wool Shirts and Blouses from India, WT/DS33/AB/R, adopted 23 May 1997,
and Corr.1, DSR 1997:I, 323
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Abbreviation Description
CHRA Corporate Headquarters Relocation Act of 2001, Illinois Public
Act 92-0207 (Panel Exhibit EC-216)
DSB Dispute Settlement Body
DUS&T programme USDOD Dual Use Science and Technology Program
EDGE Economic Development for a Growing Economy
ETI extraterritorial income
ETI Act FSC Repeal and Extraterritorial Income Exclusion Act of 2000,
Public Law No. 106-519, 114 Stat. 2423 (Panel Exhibit EC-625)
FAR Federal Acquisition Regulation
FIP foreground intellectual property
FPDS Federal Procurement Data Base
FPDS-NG Federal Procurement Data Base – Next Generation
FSC Foreign Sales Corporation
House Bill 2294 Washington State House Bill 2294, 58th Legislature, 2nd Special
Session (Washington, 2003) (Panel Exhibit EC-54)
HPCC programme NASA High Performance Computing and Communications Program
HSBI highly sensitive business information
HSR programme NASA High-Speed Research Program
IDS Integrated Defense Systems
ILFC International Lease Finance Corporation
IR&D independent research and development
IRBs industrial revenue bonds
ITAR International Traffic in Arms Regulations
ITR International Trade Resources
JAL Japan Airlines
KDFA bonds Kansas Development Finance Authority B onds
LA/MSF launch aid/member State financing
LCA large civil aircraft
LCF Boeing 747 large cargo freighter
LERD Limited Exclusive Rights Data
ManTech programme USDOD Manufacturing Technology Program
MSA Project Olympus Master Site Development and Location Agreement
between the Boeing Company and the State of Washington, County of
Snohomish, City of Everett and Certain Other Governmental Units
and Authorities of or in the State of Washington, 19 December 2003
(Panel Exhibit EC-58)
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W
ORLD TRADE ORGANIZATION
APPELLATE BODY

European Union
1, Appellant/Appellee
United States, Other Appellant/Appellee

Australia, Third Participant
Brazil, Third Participant
Canada, Third Participant
China, Third Participant
Japan, Third Participant
Korea, Third Participant
 AB-2011-3

 Present:

 Bautista, Presiding Member
 Unterhalter, Member
 Zhang, Member

I. Introduction
1. The European Union and the United States each appeals certain issues of law and legal
interpretations develope d in the Panel Report,
2 (the "Panel Report"). The Pa nel was established on 17 February
2006 to consider a complaint by the European Communities regarding a number of US measures

1This dispute began before the entry into force of the Treaty of Lisbon amending the Treaty on
European Union and the Treaty establishing the European Community (done at Lisbon, 13 December 2007) on
1 December 2009. On 29 November 2009, the World Tr ade Organization received a Verbal Note (WT/L/779)
from the Council of the European Union and the Commission of the European Communities stating that, by
virtue of the Treaty of Lisbon , as of 1 December 2009, the "Europ ean Union" replaces and succeeds the
"European Community". On 13 Ju ly 2010, the World Trade Organiza tion received a second Verbal Note
(WT/Let/679) from the Council of the European Union confirming that, with effect from 1 December 2009, the
European Union replaced the European Community and assumed all the rights and obligations of the
European Community in re spect of all Agreements for which the Director-Gen eral of the World Trade
Organization is the depositary and to which the European Community is a signatory or a contracting party. We
understand the reference in the Verbal Notes to the "European Community" to be a reference to the
"European Communities". Thus, although the European Communities was a party in the Panel proceedings, and
the Panel referred to the European Communities in its Report, it is the European Union that filed a Notice of
Appeal in this dispute after the entry into force of the Treaty of Lisbon , and we will thus refer to the
European Union in this Report in its capacity as appellant and as appellee. However, when referring to events
that took place during the Panel proceedings, or quoting from the Panel Report, we refer to the
European Communities.
2WT/DS353/R, 31 March 2011.
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affecting trade in large civil aircraft ("LCA").
3 The European Communities claimed that the
United States has provided subsidies to US produ cers of LCA, namely, The Boeing Company and the
McDonnell Douglas Corporation (prior to its merger with Boeing 4), and that such subsidies are
prohibited and/or actionable under the Agreement on Subsidies and Countervailing Measures
(the "SCM Agreement").
2. The European Communities' claims before the Panel related to measures from three US States
and municipalities therein, as well as to a number of US Federal Government measures, all allegedly
providing subsidies to Boeing, as follows5:
(a) State and local measures:
(i) State of Washington and municipalities therein: the provision of tax
incentives by the State of Washington through five measures under
House Bill 22946 ("House Bill 2294"); the provision of tax reductions from
the City of Everett's business and occupation ("B&O") tax pursuant to

3Panel Report, paras. 1.1-1.3. The Panel took note of the European Communities' definition of "large
civil aircraft" (LCA) as follows:
In accordance with the 1992 Agreement between the European Communities
and the Government of the United States of America concerning the
application of the GATT Agreement on Trade in Civil Aircraft on trade in
large civil aircraft, large civil aircraft ("LCA") included all aircraft as
defined in Article 1 of the GATT Agreement on Trade in Civil Aircraft,
except engines as defined in Article 1. 1(b) thereof, that are designed for
passenger or cargo transportation and have 100 or more passenger seats or its
equivalent in cargo configuration. Boeing produces or markets the following
families of LCA: 717, 737, 747, 757, 767, 777, and 787.
(Panel Report, footnote 20 to para. 2.1 (quoting Request for the Establishment of a Panel by the
European Communities, originally circulated as WT/DS317/5 (as amended by WT/DS353/2, WT/DS317/Add.1
and corrected by WT/DS353/2/Corr.1, WT/DS317/5/Add.1/Corr.1), footnote 4))
4The Panel explained that, prior to 1997, two firms produced LCA in the United States: The Boeing
Company and McDonnell Douglas Corporation. McDonnell Douglas merged with Boeing in 1997. Following
the merger, Boeing became the sole US producer of LCA. Boeing is di vided into several different business
segments and units: Boeing Commercial Airplanes ("BCA") is the segment that produces LCA and parts;
Boeing's Integrated Defense System s ("IDS") segment focuses on defence, intelligence, communications, and
space; Boeing's Phantom Wo rks unit conducts research and development ("R&D") for both the BCA and IDS
segments of the company; and Boeing Capital Corporation ("BCC") provides asset-backed lending and leasing
to support other Boeing business units by arranging, structuring, and providing financing to assist in the sale and
delivery of Boeing LCA products. The Panel noted that, unless otherwise indicated, the references in its Report
to "Boeing" included McDonnell Douglas. (See Panel Report, paras. 2.1 and 7.1 and footnote 1004 thereto, and
footnote 1042 to para. 7.33) We follow the same approach in this Report.
5A detailed description of the measures at issue relevant to these appellate proceedings is contained in
Part IV of this Report.
6Washington State House Bill 2294, 58th Legislature, 2nd Special Session (Washington, 2003) "An Act
related to retaining and attracting the aerospace industry to Washington state " (Panel Exhibit EC-54). These
five measures are: (i) a business and occupation (" B&O") tax rate reduction; (ii) B&O tax credits for
preproduction development, computer software and hardware, and property taxes; (iii) sales and use tax
exemptions for computers, construction, and equipment; (iv) leasehold excise tax exemptions; and (v) property
tax exemptions. (Panel Report, paras. 7.41 and 7.42)
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Ordinance No. 2759-04
7; and the provision of various incentives, including
training facilities and infrastructure im provements, in connection with the
production of Boeing's 787 under the Project Olympus Master Site
Development and Location Agreement be tween the Boeing Company and the
State of Washington (the "MSA")8;
(ii) State of Kansas and municipalities therein: the provision by the City of
Wichita of property and sales tax abatements through the issuance of
industrial revenue bonds ("IRBs") 9; and the issuance by the State of Kansas
of Kansas Development Finance Authority Bonds ("KDFA bonds") to fund
the development and production of a portion of the fuselage for Boeing's 787
in Wichita, along with payments by the State of Kansas of the interest on
such bonds
10; and
(iii) State of Illinois and municipalities therein: the provision by Cook County
and the City of Chicago of four sep arate incentives in consideration for
Boeing's decision to relocate its corporate headquarters from Seattle,
Washington State to Chicago in 200111; and

7City of Everett Ordinance No. 2759-04 (2004) (Panel Exhibit EC-61); Panel Report,
paras. 7.306-7.309.
8Project Olympus Master Site Development and Location Agreement between the Boeing Company and
the State of Washington , County of Snohomish, City of Everett and Certain Other Governmental Units and
Authorities of or in the State of Washington , 19 December 2003 (Panel Exhibit EC-58). The
European Communities argued that the following eight measures referred to in the MSA constitute specific
subsidies: (i) specific road improvements for the benefit of Boeing's LCA production facilities in Everett; (ii)
the waiver of landing fees for Boeing's 747 large cargo freighters ("LCFs") at Paine Field to lower the costs of
transporting 787 components to Everett; (iii) improvement s to rail-barge transfer capabilities and expansion of
the South Terminal facility to facilita te the transportation of 787 components to Everett; (iv) the freezing of
rates for water, sanitary sewer, solid waste, and pr ocess wastewater services utilized by Boeing's LCA
production facilities in Everett; (v) the provision of co ordinators to Boeing to help start up Project Olympus;
(vi) the creation of a workforce development programme and the provision of an "Employment Resource
Center" to train Boeing's employees who will work on the assembly of the 787; (vii) the extension to 747 LCFs
of tax and other incentives provided to the 787; and (viii) the assumption of litigation costs that Boeing incurs
in relation to the MSA. (Panel Report, para. 7.357; see also para. 4.37)
9Panel Report, paras. 7.648-7.664.
10Panel Report, paras. 4.47 and 7.822-7.826.
11Panel Report, paras. 7.893-7.902. The four incentives granted by Cook County and the City of
Chicago are: (i) the reimbursement of up to 50% of the relocation expenses incurred by an "eligible business";
(ii) the granting of 15-year Economic Development for a Growing Economy ("EDGE") tax credits to an
"eligible business", instead of the normal 10-year tax cr edit available under the EDGE Tax Credit Act; (iii) the
abatement or refund of a portion of property taxes of an "eligible business" for up to 20 years; and (iv) the
payment of $1 million by the City of Chicago to retire the lease of the previous tenant of Boeing's new
headquarters building. The first three incentives are derived from the Corporate Headquarters Relocation Act of
2001 (Illinois Public Act 92-0207 (Panel Exhibit EC-216)) (the "CHRA"). (Panel Report, paras. 7.893-7.902)
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(b) Federal measures:
(i) US National Aeronautics and Space Administration ("NASA"): payments to
Boeing and the provision of access to NASA facilities, equipment, and
employees pursuant to contracts and agreements entered into under eight
aeronautics research and development ("R&D") programmes
12;
(ii) US Department of Defense ("USDOD" ): payments to Boeing and the
provision of access to USDOD facilities for aeronautics R&D relating to
"dual use" technologies, pursuant to contracts and agreements entered into
under 23 research, development, test, and evaluation ("RDT&E")
programmes
13;
(iii) NASA/USDOD: the allocation of intellectual property rights to Boeing
under contracts and agreements entered into with NASA and the USDOD 14;
and payments by NASA and the USDOD for independent research and
development ("IR&D") expenditur es and bid and proposal ("B&P")
reimbursements, notably relating to basic research, applied research,
development, and systems and other concept formulation studies
15;
(iv) US Department of Commerce ("USDOC "): payments to Boeing and the
provision of access to USDOC facilities, equipment, and employees to
perform aeronautics R&D under eigh t Advanced Technology Program
("ATP") projects, falling into three general categories16;
(v) US Department of Labor ("USDOL"): a payment of $1.5 million, made to
Edmonds Community College under the High Growth Job Training Initiative,

12Panel Report, paras. 7.942-7.947. The eight NASA R&D programmes that funded the R&D contracts
and agreements are: (i) the Advanced Composites Technology Program ("ACT programme"); (ii) the High-
Speed Research Program ("HSR prog ramme"); (iii) the Advanced S ubsonic Technology Program ("AST
programme"); (iv) the High Performance Computing and Communications Program ("HPCC programme");
(v) the Aviation Safety Program ("AS programme"); (vi) the Quiet Aircraft Technology Program ("QAT
programme"); (vii) the Vehicle Systems Program ("VS programme"); and (viii) the Research and Technology
Base Program ("R&T Base programme"). (Ibid., para. 7.944)
13Panel Report, paras. 7.1113-7.1123. The 23 USDOD RDT&E programmes identified by the
European Communities in its panel request are set out in paragraph 7.1113 of the Panel Report.
14Panel Report, paras. 7.1260-7.1265.
15Panel Report, paras. 7.1315-7.1318.
16Panel Report, paras. 7.1213-7.1223. The three categ ories into which the eight ATP projects fall are:
(i) improving the manufacturing of lightweight composite and metal structures and materials; (ii) improving
electronics components; and (iii) improving manufact uring efficiency and supply chain logistics. ( Ibid.,
para. 7.1222) The eight USDOC projects are listed in paragraph 7.1213 of the Panel Report.
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for the training of aerospace industry workers for the development and
production of Boeing's 787
17; and
(vi) Foreign Sales Corporation ("FSC") / extraterritorial income ("ETI") and
successor legislation: the provision of federal tax exemptions to Boeing
under the original provisions of the US Internal Revenue Code relating to
foreign sales corporations and successor legislative acts, including
grandfathering clauses and transitional rules.18
3. According to the European Co mmunities, all of the above measures provided Boeing's LCA
division with subsidies amounting to $19.1 billion over the period 1989-2006.19

17Panel Report, paras. 7.1355 and 7.1357.
18Panel Report, paras. 7.1378-7.1385. The FSC/ETI subsidies were provided pursuant to the following
four pieces of US legislation:
(i) Sections 921-927 of the US Internal Revenue Code enabled certain corporations in certain locations
outside the customs territory of the United States (FSCs) to obtain a tax exemption on a portion of their "foreign
trade income" (in essence, the gross receipts of an FSC attributable to the lease or sale outside of the
United States of "export property" produced within the Un ited States). In addition, dividends from exempt and
non-exempt income to the shareholder generally qualified for a full dividends-received deduction. This measure
also allowed US parent companies of FSCs to defer the payment of taxes on certain "foreign trade income" that
would normally be subject to immediate taxation and to avoid payi ng taxes on dividends received from their
FSCs related to "foreign trade income". (Panel Report, para. 7.1379)
 (ii) The FSC Repeal and Extraterritorial Income Exclusion Act of 2000 (Public Law No. 106-519, 114
Stat. 2423 (Panel Exhibit EC-625)) (the "ETI Act") was enacted on 15 November 2000 in response to the
findings made by the panel and Appellate Body in the original US – FSC dispute, and repealed the provisions in
the US Internal Revenue Code relating to the taxation of FSCs, subject to certain grandfathering clauses and
transitional rules. The ETI Act also introduced an exclusion from income taxation of ETI (gross income of a
taxpayer attributable to "foreign tradin g gross receipts", that is, gross receipt s by certain qualifying transactions
involving the sale or lease of "qualifying foreign trade property" not for use in the United States). (Panel Report,
paras. 7.1380-7.1383)
 (iii) The American Jobs Creation Act of 2004 (Pub lic Law No. 108-357, 118 Stat. 1418 (Panel Exhibit
EC-626)) (the "AJCA") was enacted on 22 October 2004 in response to the findings made by the panel and the
Appellate Body in the US – FSC (Article 21.5 – EC) compliance dispute. Section 101 of the AJCA repealed the
exclusion of ETI but included a "transitional rule for 2005 and 2006" allowing US taxpayers to claim 80% of
ETI tax benefits with respect to certain transactions in 2005 and to claim 60% of ETI tax benefits with respect to
certain transactions in 2006. The AJCA also indefinitely grandfathered the ETI Act scheme in respect of certain
transactions, and left undisturbed the FSC benefits pursuan t to certain transactions th at had been grandfathered
under the ETI Act. (Panel Report, para. 7.1384)
 (iv) The Tax Increase Prevention and Reconciliati on Act of 2005 (Public Law No. 109-222, 120 Stat.
345 (Panel Exhibit EC-627)) (the "TIPRA") was enacted on 17 May 2006 in response to the findings made by
the panel and the Appellate Body in the US – FSC (Article 21.5 – EC II) second compliance dispute.
Section 513(a) of the TIPRA repealed section 5(c)(1)(B) of the ETI Act that allowed for the continuation of FSC
benefits in respect of transactions occurring pursuant to a binding contract in effect on 30 September 2000.
Section 513(b) of the TIPRA repealed the provisions in section 101(f) of the AJCA that allowed for the
continuation of ETI tax benefits in respect of transactions occurring pursuant to a binding contract in effect on
17 September 2003. Section 513(c) of the TIPRA provides that "{t}he amendments made by this section shall
apply to taxable years beginning after the date of the enactment of this Act". (Panel Report, para. 7.1385)
19Panel Report, paras. 7.1605 and 7.1606. The European Communities further estimated that Boeing
would receive approximately $4.6 b illion in subsidies pursuant to thes e measures between 2007 and 2024.
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A. The European Communities' Claims before the Panel
4. The European Communities requested the Pa nel to find that the United States acted
inconsistently with its obligations under the SCM Agreement. First, the European Communities
submitted that the State of Washington's House Bill 2294 tax incentives and the FSC and ETI federal
taxation schemes constitute prohibited subsidies, within the meaning of Article 3.1(a) and in violation
of Article 3.2 of the SCM Agreement.
20
5. Second, the European Communities argued that , through various measures provided by the
US Federal Government and the States of Wash ington, Kansas, and Illi nois, and municipalities
therein, the United States provided actionable s ubsidies to Boeing's LCA division, which caused
serious prejudice to the interests of the European Communities, within the meaning of Articles 5(c)
and 6.3 of the SCM Agreement.21 In particular, the European Communities requested the Panel to find
that serious prejudice was caused by means of:
(a) significant price suppression, within the meaning of Article 6.3(c) of the
SCM Agreement, with respect to orders of Airbus' A330, Original A350,
A350XWB-800, A320, and A340 families of LCA, or, in the alternative, threat of
significant price suppression with respect to deliveries of Airbus' A330,
A350XWB-800, A320, and A340 families of LCA
22;
(b) significant lost sales, within the meaning of Article 6.3(c) of the SCM Agreement,
with respect to orders of Airbus' A330, Original A350, A320, and A340 families of
LCA, or, in the alternative, threat of signifi cant lost sales with respect to deliveries of
Airbus' A330, A320, and A340 families of LCA23;
(c) displacement and impedance, within the meaning of Article 6.3(a) of the
SCM Agreement, with respect to orders of Air bus' A330 and Original A350 families
of LCA, or, in the alternative, threat of displacement or impedance with respect to
deliveries of Airbus' A330 and A350XWB-800 families of LCA24;

20Panel Report, para. 3.1(a) (referring to European Communities' first written submission to the Panel,
para. 24).
21Panel Report, para. 3.1(b).
22Panel Report, para. 3.1(b)(i) (referring to Euro pean Communities' first written submission to the
Panel, paras. 1387, 1455, and 1654).
23Panel Report, para. 3.1(b)(ii) (referring to Euro pean Communities' first written submission to the
Panel, paras. 1446 and 1654).
24Panel Report, para. 3.1(b)(iii) (referring to Euro pean Communities' first written submission to the
Panel, paras. 1455 and 1654).
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(d) displacement and impedance, within th e meaning of Article 6.3(b) of the
SCM Agreement, with respect to orders of Airbus' A330, Original A350, A320, and
A340 families of LCA, or, in the alternativ e, threat of displacement or impedance
with respect to deliveries of Airbus' A330, A350XWB-800, A320, and A340 families
of LCA
25; and
(e) threat of significant price suppression with respect to future orders of Airbus' A330,
A350XWB-800, A320, and A350XWB-900/1000 families of LCA.26
6. Third, the European Communities contended that the United States acted inconsistently with
its obligations regarding support to the LCA industry, as set forth in the 1992 Agreement between the
European Economic Community and the Government of the United States of America concerning the
application of the GATT Agreement on Trade in Civil Aircraft on trade in large civil aircraft 27 (the
"1992 Agreement"), and that the United States' brea ch of that Agreement constitutes serious prejudice
to the European Communities' interests, within the meaning of Article 5(c) of the SCM Agreement.28
7. On 24 November 2006, the European Communitie s filed a request for preliminary rulings
concerning the information-gathering pr ocedure contained in Annex V to the SCM Agreement. The
European Communities submitted two alternative requests. First, it requested the Panel to rule that
the Annex V procedure had been initiated and that, consequently, the United States had an obligation
to respond to certain questions put to it by the European Communities in a communication dated
25 May 2006. In the alternative, the European Co mmunities asked the Panel to exercise its discretion
under Article 13 of the Understanding on Rules and Procedures Governing the Settlement of Disputes
(the "DSU") to put some or all of these questions to the United States.29

25Panel Report, para. 3.1(b)(iv) (referring to Euro pean Communities' first written submission to the
Panel, paras. 1455, 1640, and 1654).
26Panel Report, para. 3.1(b)(v) (referring to Euro pean Communities' first written submission to the
Panel, para. 1654).
27Done at Brussels on 17 July 1992, Official Journal of the European Union , L Series, No. 301
(17 October 1992) 32.
28Panel Report, para. 3.1(c) (referring to European Communities' first written submission to the Panel,
para. 1055).
29Panel Report, para. 7.19.
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B. The Panel's Findings
8. During the course of the Panel proceedings, th e Panel adopted additio nal procedures for the
protection of business confidentia l information ("BCI") and highl y sensitive business information
("HSBI"), and issued a number of rulings relating to these procedures and other issues.
30 On 30 July
2007, the Panel issued a Preliminary Ruling declining the requests that had been made by the
European Communities relating to the information- gathering procedure set out in Annex V to the
SCM Agreement.
31 The Panel considered that initiation of an Annex V procedure requires some form
of action on the part of the Dispute Settlement Body ("DSB"). 32 Having examined the minutes of the
various DSB meetings where the European Commun ities' request to initiate such a procedure was
considered, the Panel found it "clear" that "the DSB never took any action to initiate an Annex V
procedure", or designate a DSB repr esentative, as required by Annex V. 33 Accordingly, the Panel
denied the European Communities' request to rule th at an Annex V procedure had been initiated, as
well as various additional requests that were dependent upon that request. 34 The Panel also declined
the European Communities' alternative request, explai ning that it did not, in the circumstances of this
dispute, consider it necessary or appropriate to ex ercise its discretion under Article 13 of the DSU to
seek information from the United States before having reviewed the parties' first written
submissions.35

30BCI and HSBI procedures were adopted by the Panel on 19 February 2007, at the request of, and
following consultations with, the partie s. The procedures were modified several times over the course of the
proceedings and the Panel issued a number of rulings in connection with them. The final version of these
procedures is attached to the Panel Report as Annex D. (Panel Report, para. 1. 11) On 21 December 2006,
Brazil requested the Panel to grant it certain enhanced third party rights, and on 22 December 2006, Canada
requested the Panel to grant it any enhanced third party ri ghts granted to Brazil. Both parties to the dispute
submitted comments and opposed the requests. On 23 February 2007, the Panel informed the parties and third
parties that it had decided not to gran t enhanced third party rights to any th ird party in the proceedings. (Panel
Report, paras. 1.14, 7.14, and 7.15)
31Panel Report, paras. 7.19-7.24.
32Panel Report, para. 7.21.
33Panel Report, para. 7.20.
34Panel Report, para. 7.22. In this regard, the Pane l rejected requests that it: (i) "rule that the
United States {was} under an obligation to cooperate and answer the questions that had been put to it in the
European Communities' letter to the Facilitator dated 23 May 2006"; (ii) "rule that Mr. Mateo Diego-Fernández
was effectively designated as a facilitato r in that procedure, and in the event that the Panel {did} not make this
ruling, nevertheless to provide the relief set forth in the preceding and following points"; and (iii) "adopt such
working procedures that would allow the completion of the Annex V procedure in due time before the deadline
for the filing of the European Communities' first written submission". ( Ibid. (quoting Request for preliminary
rulings by the European Communities, 24 November 2006 ("European Communities' request for preliminary
rulings"), para. 58))
35Panel Report, para. 7.23.
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9. The Panel Report was circulated to Members of the World Trade Organization (the "WTO")
on 31 March 2011. In its Report, the Panel found the following state and local measures to constitute
specific subsidies within the meaning of Articles 1 and 2 of the SCM Agreement
36:
(a) State of Washington and municipalities therein: (i) the Washington State B&O tax
rate reduction provided for in House B ill 2294; (ii) the B&O tax credits for
preproduction development, computer soft ware and hardware, and property taxes
provided for in House Bill 2294; (iii) the sales and use tax exemptions for computer
hardware, peripherals, and softwa re provided for in House Bill 2294 37; (iv) the City
of Everett B&O tax rate reduction 38; and (v) the workforce development programme
and the Employment Resource Center provided under the MSA39;
(b) State of Kansas and municipalities therein: the state and local property and sales tax
abatements granted to Boeing through the issuance of IRBs40; and
(c) State of Illinois and municipalities therein: (i) the reimbursement of a portion of
Boeing's relocation expenses provided for in the Corporate Headquarters Relocation
Act of 200141 (the "CHRA"); (ii) the 15-year Economic Development for a Growing
Economy ("EDGE") tax credits provided for in the CHRA; (iii) the abatement or
refund of a portion of Boeing's property taxes provided for in the CHRA; and (iv) the
payment to retire the lease of the previ ous tenant of Boeing's new headquarters
building.42
10. The Panel was not satisfied, however, that the European Communities had established that the
following state measures constitute specific subsidies within the meaning of the SCM Agreement:
(i) the Washington State sales tax exemptions for construction services and equipment, the leasehold

36Panel Report, para. 7.1431(a)(i)-(iv), (b)(i), and (c)(i)-(iv), respectively.
37The Panel estimated the amounts of the subsidy provided to Boeing's LCA division through the three
House Bill 2294 tax incentives that it found to be specific subsidies to be: (i) $13.8 million (B&O tax rate
reduction); (ii) $42.4 million (B&O tax credits) (o f which, tax credit for preproduction development
($21.3 million), computer software and hardware ($20 million), and property taxes ($1.1 million)); and
(iii) $8.3 million (sales and use tax exemption for comput er hardware, peripherals and software). (Panel Report,
paras. 7.254, 7.257, 7.258, 7.300, and 7.302)
38The Panel estimated the amount of the subsidy provided to Boeing's LCA division by means of the
City of Everett B&O tax rate reduction through 2006 to be $2.2 million. (Panel Report, para. 7.354)
39The Panel estimated the amount of subsidies provided to Boeing's LCA division by means of the
workforce development programme and the Employment Resource Center over the period 1989-2006 to be
$11 million. (Panel Report, para. 7.644)
40The Panel estimated the amount of the subsidy provided to Boeing through the issuance of IRBs to be
$475.8 million. (Panel Report, para. 7.819)
41Illinois Public Act 92-0207 (Panel Exhibit EC-216).
42The Panel estimated the amount of the subsidy provided through the four incentives at issue to be
$11 million over the period 2002-2006. (Panel Report, para. 7.939)
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tax exemption, and the property tax exem ption granted pursuant to House Bill 2294
43; (ii) the
measures—other than the workforce developm ent programme and the Employment Resource
Center—granted pursuant to the MSA 44; or (iii) the State of Kansas' issuance of KDFA bonds.45
11. The Panel also found the following US Federal Government measures to constitute specific
subsidies within the meaning of Articles 1 and 2 of the SCM Agreement:
(a) NASA: (i) the payments made to Boeing pursuant to procurement contracts entered
into under the eight aeronautics R&D progr ammes at issue; and (ii) the access to
NASA facilities, equipment, and empl oyees provided to Boeing pursuant to
procurement contracts and agreements unde r the National Aeronautics and Space Act
of 1958 46 (the "Space Act") entered into under the eight aeronautics R&D
programmes at issue ("Space Act Agreements")47;
(b) USDOD: (i) the payments made to Boeing pursuant to assistance instruments entered
into under the 23 RDT&E programmes at issue; and (ii) the access to USDOD
facilities provided to Boeing pursuant to assistance instruments entered into under the
23 RDT&E programmes at issue48; and

43Panel Report, paras. 7.303 and 7.1432(a)(i)-(iii).
44The measures found not to be speci fic subsidies are: (i) the I-5 and SR 527 expansion projects, the
construction of a rail-barge transfer f acility, and the expansion of the South Terminal by the Port of Everett;
(ii) Snohomish County's waiver of 747 LCF landing fees at Paine Field; (iii) the alleged commitment made by
the City of Everett and Snohomish Co unty to freeze utility rates charged to Boeing; (iv) the provision of
coordinators to Boeing pursuant to the MSA; (v) tax an d other incentives related to the 747 LCFs; and (vi) the
assumption by Washington State of costs to Boeing for MSA-related legal proceedings. (Panel Report,
paras. 7.645 and 7.1432(a)(iv)-(ix))
45Panel Report, paras. 7.890 and 7.1432(b)(i).
46Public Law No. 85-568, as amended (Panel Exhibit EC-286).
47Panel Report, paras. 7.1041, 7.1049, and 7.1431(d)(i)-(ii). The Panel estimated the amount of the
subsidy provided to Boeing's LCA division in the form of payments under R&D contracts to be $1.05 billion
over the period 1989-2006, and the amount of the subsidy provided to Boeing's LCA division in the form of
access to NASA facilities, equipment and employees un der NASA R&D contracts and agreements to be
$1.55 billion over this same period. Thus, the Panel es timated the total amount of the subsidy provided through
the eight NASA aeronautics R&D programmes over the 1989-2006 period to be $2.6 billion. ( Ibid.,
paras. 7.1109 and 7.1110)
48Panel Report, paras. 7.1188, 7.1198, and 7.1431(e)(i)-(ii). The Panel found that it was unable to
provide an estimate of the amount of the subsidy under the 23 USDOD RDT&E programmes over the period
1991-2006 because it was "unclear". The European Communities had estimated that, out of the $45 billion in
RDT&E funding that Boeing received fr om the USDOD over the period 1 991-2005, approximately $4.3 billion
related to "dual use" R&D. For its part, the United States estimated the total amount of any USDOD subsidy to
Boeing for "dual use" R&D to be significantly less than $308 million over the period 1991-2006. ( Ibid.,
paras. 7.1203, 7.1204, 7.1209, and 7.1210)
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(c) FSC/ETI and successor legislation: the tax exemptions and tax exclusions provided
to Boeing under FSC/ETI legislation, in cluding the transition and grandfathering
provisions of the FSC Repeal and Extraterritorial Income Exclusion Act of 2000 49
(the "ETI Act") and the American Jobs Creation Act of 200450 (the "AJCA").51
12. The Panel was not persuaded that the Europ ean Communities had demonstrated that the
following federal measures constitute specific subsidies: (i) the USDOD's payments to Boeing
pursuant to procurement contracts under the 23 aeronautics RDT&E programmes at issue 52; (ii) the
USDOD's grant of access to government facilitie s pursuant to procurement contracts under the
23 aeronautics RDT&E programmes at issue 53; (iii) the USDOC's payments to joint
ventures/consortia in which Boeing participated through the ATP 54; (iv) the allocation of intellectual
property rights under NASA/USDOD R&D procurement contracts and agreements 55; (v) the
reimbursement of IR&D and B&P expenses unde r NASA/USDOD R&D procurement contracts and
agreements56; or (vi) the USDOL's payment to Edmonds Community College under the High Growth
Job Training Initiative.57
13. The Panel further found that the FSC/ETI a nd successor act subsidies constitute prohibited
export subsidies within the meaning of Articles 3.1(a) and 3.2 of the SCM Agreement.58 However, the
Panel considered that the European Communities had failed to demonstrate that the Washington State
tax measures provided for in House Bill 2294 are inc onsistent with Articles 3.1(a) and 3.2 of the
SCM Agreement.59
14. The Panel determined that the above measures provided Boeing's LCA division with
subsidies amounting to "at least $5.3 billion" over the period 1989-2006.60 The Panel declined to take
account of the estimated future subsidy amounts associated with these measures.61

49Supra, footnote 18, item (ii).
50Supra, footnote 18, item (iii).
51Panel Report, paras. 7.1406 and 7.1431(f)(i). The Panel estimated the amount of the subsidy
provided to Boeing through the FSC/ETI legislation over the period 1989-2006 to be approximately
$2.199 billion. (Ibid., para. 7.1429)
52Panel Report, paras. 7.1171 and 7.1432(c)(i).
53Panel Report, paras. 7.1171 and 7.1432(c)(ii).
54Panel Report, paras. 7.1257 and 7.1432(e)(i).
55Panel Report, paras. 7.1312 and 7.1432(d)(i).
56Panel Report, paras. 7.1354 and 7.1432(d)(ii).
57Panel Report, paras. 7.1375 and 7.1432(f)(i).
58Panel Report, paras. 7.1464 and 8.2(a).
59Panel Report, paras. 7.1590 and 8.2(b).
60Panel Report, para. 7.1433.
61Panel Report, paras. 7.153-7.158.
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15. At the outset of its analysis of the European Communities' claims of serious prejudice, the
Panel made a number of findings regarding the rele vant "markets", "subsidized products", and "like
products" for purposes of its analysis. The parties ag reed, and the Panel found, that "the LCA market
is a global market geographically".
62 The European Communities fu rther divided the global LCA
market into five market segments, or product markets, on the basis of the flight range and seating
capacity of the various LCA families.
63 Its serious prejudice claim focused on three of these product
markets: (i) the 100-200 seat LCA market; (ii) the 200-300 seat LCA market; and (iii) the 300-400
seat LCA market.64 The relevant Boeing "subsidized product( s)" and Airbus "like product(s)" in each
market are set out at Table 3 in paragraph 897 of this Report. The United States accepted the
European Communities' division of the market as the basis for evaluating the European Communities'
serious prejudice claim65, and so did the Panel. 66 The Panel further expressed the view that, provided
that the European Communities demonstrated one of the alleged forms of serious prejudice in
subparagraphs (a) through (c) of Ar ticle 6.3 in relation to a particular Boeing subsidized LCA and a
corresponding Airbus like product, it would establish serious prejudice to the European Communities'
LCA-related interests for purposes of Article 5(c) of the SCM Agreement.67
16. The Panel further noted that, in presenting its arguments, the European Communities drew a
distinction "based on the nature of the subsidies" between, on the one hand, the effects of the
subsidies benefiting Boeing's 787 family of LCA and, on the other hand, the effects of the subsidies
benefiting Boeing's 737NG and 777 families of LCA. 68 With regard to the 787, which competes in
the 200-300 seat LCA market, the European Co mmunities argued that the subsidies have two
principal effects, whereas, with respect to the 737NG and 777, which compete in the 100-200 seat and
the 300-400 seat LCA markets, respectively, the subsidies were alleged to have only one of those
effects.69 For all three product markets, the European Communities alleged that all of the subsidies
have "price effects" because they provide Boeing w ith the ability to charge lower prices either by
reducing Boeing's marginal unit costs or by increasing Boeing's non-operating cash flow. 70 For the
200-300 seat LCA market, the European Communities alle ged that, in addition to those price effects,
the aeronautics R&D subsidies have "technology effects" in that they "have helped Boeing develop,
launch and produce a technologically-advanced 200-300 seat LCA much more quickly than it could

62Panel Report, para. 7.1671.
63Panel Report, para. 7.1669.
64Panel Report, para. 7.1670.
65Panel Report, para. 7.1670.
66Panel Report, para. 7.1672.
67Panel Report, para. 7.1667.
68Panel Report, para. 7.1696.
69Panel Report, paras. 7.1697 and 7.1698.
70Panel Report, paras. 7.1697 and 7.1698.
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have on its own".
71 Thus, the Panel understood the European Communities to argue that the subsidies
cause significant price suppression, significant lost sales, and displacement and impedance (and a
threat thereof), in the 200-300 seat LCA market through both the technology effects and the price
effects that they have on Boeing's comme rcial behaviour with respect to the 787. 72 For the 100-200
seat and 300-400 seat LCA markets, the Panel understood the European Communities to argue that
the subsidies cause the same market phenomena, but only through the price effects on Boeing's
commercial behaviour with respect to the 737NG and 777.
73
17. The Panel concluded as follows with respect to the European Communities' claims
concerning the technology effects of the aeronautics R&D subsidies:
{T}he effect of the aeronautics R&D subsidies is a threat of
displacement and impedance of European Communities' exports from
third country markets within the meaning of Article 6.3(b) of the
SCM Agreement, with respect to the 200-300 seat wide-body LCA
product market, and significant lost sales and significant price
suppression, within the meaning of Article 6.3(c) of the
SCM Agreement with respect to that product market, each of which
constitute serious prejudice to the interests of the
European Communities within the meaning of Article 5(c) of the
SCM Agreement.
74
18. As regards the European Communities' claim of price effects of the FSC/ETI subsidies and
the Washington State and City of Everett B&O tax rate reductions (the "tied tax subsidies"):
... the Panel {was} satisfied that the effects of the FSC/ETI subsidies
and the Washington State B&O tax subsidies in the 100-200 seat
single aisle LCA product market were to significantly suppress
Airbus' prices in sales in which it competed against Boeing and to
cause Airbus to lose significant sales, and to displace and impede
European Communities' exports from third country markets in that
product market. {The Panel was} also satisfied that the effects of the

71Panel Report, para. 7.1697 (quoting European Communities' first written submission to the Panel,
para. 1343). The aeronautics R&D subsidies consist of : (i) the payments made to Boeing and the access to
NASA facilities, equipment, and employees provided to Boeing by NASA pursuant to procurement contracts
and Space Act Agreements entered into under the eight aeronautics R&D prog rammes at issue; and (ii) the
payments made to Boeing and the access to USDOD facilities provided to Boeing pursuant to assistance
instruments entered into under the 23 USDOD RDT&E programmes at issue. The Panel identified these as four
types of measures, namely: (i) the payments made to Boeing pursuant to procurement contracts entered into
under the eight NASA aeronautics R&D programmes at issu e; (ii) the access to NASA facilities, equipment,
and employees provided to Boeing pursuant to procurement contracts an d Space Act Agreements entered into
under the eight NASA aeronautics R&D programmes at issue; (iii) the payments made to Boeing pursuant to
assistance instruments entered into und er the 23 USDOD RDT&E programmes at issue; and (iv) the access to
USDOD facilities provided to Boeing pursuant to assist ance instruments entered into under the 23 USDOD
RDT&E programmes at issue. (See ibid., paras. 7.1110, 7.1210, 7.1431, and 7.1433)
72Panel Report, para. 7.1697.
73Panel Report, para. 7.1698.
74Panel Report, para. 7.1797.
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FSC/ETI subsidies, the Washington State B&O tax subsidies and the
City of Everett B&O tax subsidies in the 300-400 seat wide-body
LCA product market were to signifi cantly suppress Airbus' prices in
sales in which it competed against Boeing and to cause Airbus to lose
significant sales, and to displace and impede European Communities'
exports from third country markets in that product market.
75
19. In its assessment of the effects of the subsid ies in the 200-300 seat LCA market, the Panel
observed that the NASA and USDOD aeronautics R&D subsidies, on the one hand, and the State of
Washington and City of Everett B&O tax rate reductions 76, on the other hand, "operate through
entirely distinct causal mechanisms". 77 Given the different ways in which these two groups of
subsidies operate, the Panel considered that it was not "appropriate to aggregate the effects of the
B&O tax subsidies on Boeing's pricing of the 787 w ith the effects of the aeronautics R&D subsidies
on Boeing's development of technologies applied to the 787". 78 The Panel therefore evaluated the
effects of the two B&O tax rate reductions on th eir own, and found that there was "insufficient
evidence before {it} … to conclude that these subsid ies are of a magnitude that would enable them,
on their own, to have such an effect on Boeing's pr ices of the 787 as would lead to a finding that their
effects in the 200-300 seat wide-body market were significant price suppression, significant lost sales
or displacement or impedance of European Commun ities imports into the United States or exports to
third countries."79
20. With respect to the remaining eight subs idies that the Panel found to be specific 80, the Panel
was not satisfied that the European Communitie s had established that, through their effects on
Boeing's LCA pricing behaviour, these subsidies have caused serious prejudice to the
European Communities' interests in any of the three LCA product markets relevant to this dispute.81

75Panel Report, para. 7.1823.
76As explained infra, footnote 1882, the European Communities did not claim that the FSC/ETI
subsidies had adverse effects in the 200-300 seat LCA ma rket, and the Panel conducted its analysis on the basis
that these subsidies had no effects in that product market.
77Panel Report, para. 7.1824.
78Panel Report, para. 7.1824.
79Panel Report, para. 7.1824.
80The eight remaining subsidies, which the Panel found amounted to approximately $550 million,
consist of: (i) the Washington State B&O tax credits for preproduction development, computer software and
hardware, and property taxes; (ii) the Washington St ate sales and use tax exemptions for computer hardware,
peripherals and software; (iii) the Washington Stat e workforce development programme and Employment
Resource Center; (iv) the property and sales tax abatements provided to Boeing pursuant to IRBs issued by the
State of Kansas and municipalities therein; (v) the reimbursement of a portion of Boeing's relocation expenses
by the State of Illinois; (vi) the 15- year EDGE tax credits provided by the State of Illinois; (vii) the abatement
or refund of a portion of Boeing's property taxes provide d by the State of Illinois; and (viii) the payment to
retire the lease of the previous tenant of Boeing's new headquarters building in Chicago.
81Panel Report, paras. 7.1828 and 7.1834.
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21. The Panel exercised judicial economy with resp ect to the European Communities' claim that
certain of the subsidies at issue threaten to cau se significant price suppression with respect to future
orders of Airbus LCA
82, and with respect to the European Co mmunities' claim that the United States'
violation of the 1992 Agreement constitutes serious prejudice to the European Communities' interests
within the meaning of Article 5(c) of the SCM Agreement.83
C. Appellate Proceedings
22. On 1 April 2011, the European Union notified the DSB of its intention to appeal certain issues
of law covered in the Panel Report and certain legal interpretations developed by the Panel, pursuant
to Articles 16.4 and 17 of the DSU, and filed a Notice of Appeal 84 pursuant to Rule 20 of the Working
Procedures for Appellate Review85 (the "Working Procedures").
23. Also on 1 April 2011, the Appellate Body recei ved a request from the European Union that
the Appellate Body adopt additional procedures to protect BCI and HSBI in these appellate
proceedings.86 The European Union explained that the reas ons for this request were substantially the
same as the reasons given by the participants in EC and certain member States – Large Civil Aircraft ,
namely, that disclosure of confidential information (which in this dispute includes company-specific
data on productivity, costs, prices, sales campai gns, commercial agreements, and privileged advice)
could be "severely prejudicial" to the originators of the information, that is, to the manufacturers of
LCA, as well as their customers and suppliers. 87 The European Union requested the adoption of a
procedural ruling with substantially the same te rms as the one adopted by the Appellate Body in
EC and certain member States – Large Civil Aircraft . On the same day, the Appellate Body Division

82In particular, the A330, A350XW B-800, A320, and A350XWB-900/1000 families of LCA. (Panel
Report, para. 7.1851) We also note that the Panel do es not appear to have explicitly reached any finding or
conclusion regarding the European Communities' claim that the United States' use of the subsidies at issue has
caused displacement and impedance of its exports to the United States, within the meaning of Article 6.3(a) of
the SCM Agreement, with respect to orders of Airbus' A330 a nd Original A350 families of LCA, or, in the
alternative, threat of displacement or impedance with respect to deliveries of Airbus' A330 and A350XWB-800
families of LCA. Nevertheless, it seems to us that, in finding that factors other than the performance
characteristics or the timing of the availability of the 787 led to the decisions of Continental Airlines and
Northwest Airlines to purchase Boeing LCA rather than Airbus LCA, the Panel effectively found that the
European Communities had not made out this aspect of its claim. (Ibid., para. 7.1786 and footnote 3725 thereto)
In any event, the European Union has not appealed the lack of an explicit finding by the Panel in this regard.
83Panel Report, paras. 7.1893 and 8.3(b).
84WT/DS353/8 (attached as Annex I to this Report). Also on 1 April 2011, the European Union sent a
letter to the Chair of the DSB explaining, inter alia, that the reason it decided to be the first to appeal certain
findings in the Panel Report was that it could not accept further delays in this dispute. This letter was circulated
to WTO Members as document WT/DS353/9.
85WT/AB/WP/6, 16 August 2010.
86Previously, on 23 March 2011, the European Union had sent a letter to the Director of the Appellate
Body Secretariat suggesting, in the event of an appeal of the Panel Report in this dispute, the adoption of additional
procedures concerning the treatment of BCI and HSBI in the appellate proceedings.
87Appellate Body Report, EC and certain member States – Large Civil Aircraft, para. 17.
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selected to hear this appeal invited the United States and the third parties to comment in writing on the
European Union's request, and informed the particip ants and third parties of its decision to adopt
temporary precautions to protect confidential inform ation. Given that the Panel record was, in
accordance with Rule 25 of the Working Procedures, to be transmitted to the Appellate Body
immediately upon the filing of a Notice of Appeal , the Division decided to provide additional
protection to all BCI and HSBI transmitted to the A ppellate Body as part of that record, pending its
final decision on the European Union's request.
24. Written comments were received from the United States on 6 April 2011 and from Australia,
Brazil, Canada, China, and Japan on 12 April 2011. The United States shared the European Union's
view that it was necessary for the Di vision to adopt BCI/HSBI procedures in this appeal. Overall, the
United States agreed that the Appellate Body procedural ruling in EC and certain member States –
Large Civil Aircraft would serve as an appropriate basis for a procedural ruling on the protection of
sensitive information in this appeal, with certain modifications made in the light of the previous
experience. The third participants expressed their support for, or did not oppose, the request of the
European Union, and suggested certain modifications to the proposed procedures in order to ensure
that the rights of third participants to participate meaningfully in these appellate proceedings would be
fully protected. On 15 April 2011, the Division issued a Procedural Ruling adopting Additional
Procedures to Protect Sensitive Information (the "A dditional Procedures"), pursuant to Rule 16(1) of
the Working Procedures. The Procedural Ruling and Additional Procedures are attached as Annex III
to this Report.
25. On 19 April 2011, pursuant to paragraph 19(xiv) of the Additional Procedures, the
participants each provided a list of persons designated as "BCI-Approve d Persons" and persons
designated as "HSBI-Approved Persons". On the sam e day, in accordance with paragraph 19(xvi) of
the Additional Procedures, the third participants each provided a list of up to eight individuals
designated as "Third Participant BCI-Approved Pe rsons". Requests to change the BCI/HSBI
Approved Persons and Third Partic ipants BCI-Approved Persons lists were subsequently submitted
by the European Union, the United States, Australia, Brazil, Canada, and Korea.
88 The Division
provided the participants and third participants w ith the opportunity to comment on each request. No
objections were made and all of the requests were authorized by the Division.89

88Changes were submitted by the European Union on 10 August, 28 September, 10 and 11 October
2011, and 23 February 2012; by the United States on 11 August 2011; and by Australia on 6 September, Brazil
on 5 August, Canada on 28 April and 8 August, and Korea on 4 August and 12 September 2011.
89Letters from the Presiding Member to the participan ts and third participants dated 6 May, 12 August,
19 September, 7 October 2011 and at the second session of the oral hearing, and 6 March 2012.
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26. Upon receipt of the European Union's request for additional procedures for the protection of
BCI and HSBI in these proceedings, the Division decided to suspend the deadlines that would
otherwise apply under the Working Procedures for the filing of a Notice of Other Appeal and for the
filing of written submissions. On 20 April 2011, af ter issuing its Procedural Ruling, the Division
provided the participants and third participan ts the deadlines for filing written submissions, pursuant
to Rule 26 of the Working Procedures . In that communication, the Division also invited the
participants to address in their appellees' submi ssions, and the third participants in their written
submissions, the implications for the legal issues in this appeal arising from the Appellate Body report
in EC and certain member States – Large Civil Aircraft , which was subsequently circulated on
18 May 2011.
27. The European Union filed an appellant's submission on 21 April 2011.
90 On 28 April 2011,
the United States notified the DSB of its intention to appeal certain issues of law covered in the
Panel Report and certain legal interpretations developed by the Panel, pursuant to Articles 16.4 and 17
of the DSU, and filed a Notice of Other Appeal 91 pursuant to Rules 23 and 26(2) of the Working
Procedures. On the same day, the United States filed an other appellant's submission.92
28. On 19 May 2011, pursuant to Rule 30(1) of the Working Procedures , the European Union
notified the Appellate Body Division hearing this appeal, as well as the United States and the third
participants, that it was withdrawing its appeal insofar as it related to subsidies contingent upon
export, with immediate effect.
29. On 15 June 2011, the European Union and the United States each filed an appellee's
submission93 and, on 23 June 2011, Australia, Brazil, Ca nada, China, Japan, and Korea each filed a
third participant's submission.94
30. On 4 July 2011, the Chair of the Appellate Body informed the Chair of the DSB that, due to
the considerable size of the record and complexity of the appeal, the need to hold multiple sessions of
the oral hearing, and the overall workload of th e Appellate Body, the Appe llate Body would not be
able to circulate its Report by 31 May 2011—that is, by the expiration of the 60-day period provided
under Article 17.5 of the DSU. The Chair of the DSB was also informed th at the Appellate Body

90Pursuant to Rules 21 and 26(2) of the Working Procedures.
91WT/DS353/10 (attached as Annex II to this Report).
92Pursuant to Rules 23(3) and 26(2) of the Working Procedures.
93Pursuant to Rules 22, 23(4), and 26(2) of the Working Procedures.
94Pursuant to Rules 24(1) and 26(2) of the Working Procedures.
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would hold a first session of the oral hearing in August and a second session in October 2011, and
would provide thereafter an estimate for when its Report would be circulated.
95
31. By joint letter dated 11 July 2011, the participan ts requested that the oral hearing in this
appeal be opened to public observation to the extent that this would be possible given the need for
protection of sensitive information. The particip ants suggested that the Division adopt a further
procedural ruling pursuant to Rule 16(1) of the Working Procedures to regulate the conduct of the
oral hearing in the light of the request for pu blic observation and the Additional Procedures, and
proposed specific modalities for that purpose. On 12 July 2011, the Division invited the third
participants to comment on the participants' reque st and proposed modalities. On 15 July 2011,
Canada and China submitted comments on the particip ants' request to open the oral hearing to public
observation. Canada agreed with the joint proposal of the participants that the Division adopt the
same additional procedures that were adopted in EC and certain member States – Large Civil
Aircraft. China expressed its wish that the Di vision follow the same practice as in EC and certain
member States – Large Civil Aircraft to allow third participants the opportunity to request confidential
treatment of their oral statements. On 26 Ju ly 2011, the Division issued a Procedural Ruling
authorizing the participants' joint request for ope ning the hearing to public observation via closed-
circuit broadcasting and adopted Additional Procedures on the Conduct of the Oral Hearing, including
the protection of certain sensitive information duri ng the oral hearing. The Procedural Ruling is
attached as Annex IV to this Report.
32. The oral hearing in this appeal took place in two sessions: the first on 16-19 August 2011,
and the second on 11-14 October 2011. Pursuant to the Procedural Ruling of 26 July 2011, the
participants and third participants did not refer to any BCI or HSBI in their opening statements at
either session of the oral hearing. The opening stat ements of the participants and third participants,
with the exception of China and Korea, were vi deotaped at both the first and second sessions of the
oral hearing. Upon confirmation that no BCI or HSBI had been inadvertently uttered, the videotapes
of the opening statements were broadcast on 23 Au gust and 18 October 2011 to those members of the
public who had registered for the viewing. No participant or third participant made a closing
statement at either session of the oral hearing.

95WT/DS353/11.
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33. Following the first session of the hearing, th e Division invited the participants and third
participants to submit additional written memoranda, pursuant to Rule 28 of the Working Procedures.
The European Union and the United States each submitted an additional memorandum on
5 September 2011, and Brazil, Ca nada, Japan, and Korea each s ubmitted an additional memorandum
on 12 September 2011. The participants and third participants were given an opportunity at the
second session of the oral hearing to make comments on the others' additional memoranda.

34. Pursuant to paragraph 19(xiii) of the Proce dural Ruling of 15 April 2011, the Division
informed the participants and third participants, on 23 February 2012, that it had found it necessary to
include in the Appellate Body Report some references to information that was treated by the Panel as
BCI or HSBI. Also pursuant to paragraph 19(xiii) of the Procedural Ruling, an advance copy of the
Appellate Body Report was provided to the Eur opean Union and the United States on 29 February
2012. Both participants were requested to indicat e, by 5 March 2012, whether there was a continuing
need to treat all of the business sensitive informati on in the same manner as the Panel, and whether
any BCI or HSBI had been included in the Appella te Body Report without having been identified as
such. On 5 March 2012, the European Union indicated that it had not identified any BCI or HSBI that
was not designated as such in the Appellate Body Report, and that it was willing to remove BCI
protection with respect to two sentences consisting of EU BCI. On that date, the United States
identified one instance in which it considered that BCI had been inadvertently disclosed, and indicated
that the relevant text should be designated as BCI , or revised so as to avoid the need for BCI
protection. The United States also identified a number of instances, consisting of US BCI or EU BCI,
for which it suggested, or did not object to, the rem oval of BCI protection. On the same day, the
Division requested the participants to respond to each other's comments by 7 March 2012. On 6
March 2012, the European Union indicated that it had no objection to the United States' proposal to
remove BCI protection for informa tion that related to the United States' interests, but objected to
doing so with respect to such information relating to the European Union's interests. On 7 March
2012, the United States stated that it had no objection to the removal of BCI protection for the two
sentences identified by the European Union in its letter of 5 March 2012. The Division modified the
one inadvertent disclosure of BCI information, as s uggested by the United States, so as to avoid the
need for BCI protection. The Division decided to remove BCI protection in certain instances in which
the participants suggested, or did not object to, such removal.
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II. Arguments of the Participants and the Third Participants
A. Claims of Error by the European Union – Appellant
1. Annex V to the SCM Agreement
35. The European Union asserts that the Panel erre d by refusing to rule that the information-
gathering procedure under Annex V to the SCM Agreement had been initiated, and by denying a
number of related requests. The European Union s ubmits that, in proceeding in the way it did, the
Panel failed to make an objective assessment of the matter within the meaning of Article 11 of the
DSU and erred in its interpretation and application of Article 7.4 the SCM Agreement and paragraph 2
of Annex V thereto. The European Union requests th e Appellate Body to find that the Panel erred in
not ruling on whether the Annex V procedure had been initiated, and to complete the analysis and
make a finding that the Annex V procedure is initiate d by negative consensus or automatically. In
addition, and independently of these requests, th e European Union urges the Appellate Body to
"constantly bear in mind the circumstances of this case"96, in particular the withholding of information
and non-cooperation by the United States. On that basis, the Appellate Body should preclude the
United States from criticizing the Panel for its assessmen t of the facts or drawing of factual inferences
and, "{i}n case of doubt or evidentiary conflict or equipoise, the Appellate Body should rule in favour
of the European Union".97
36. In its appellant's submission, the European Un ion draws a distinction between DSB "action"
and issues that call for a "decision" by the DSB. 98 The European Union notes that, under Article 2.4
of the DSU, "decisions" require consensus, but the requirement for "actions" to occur by negative
consensus permeates the DSU. By way of example, the European Union points out that the final
sentence of Article 2.1 indicates that, "where the DSB 'administer{s}' dispute settlement rules, it
proceeds by way of 'decisions or actions'" 99; and Article 6.1 confirms that a panel is not established
by a consensus decision, but by way of DSB action by negative consensus on the one condition that a
request for the establishment of a panel is receive d, which is something different from a consensus
decision. That is why a WTO document recording the establishment of the panel "in accordance with
Article 6 of the DSU"100 is subsequently distributed. 101 Moreover, Articles 16.4, 17.14, 22.6, and the
final sentence of Article 22.7 also describe DSB actions that take place on the one condition that a

96European Union's appellant's submission, para. 53.
97European Union's appellant's submission, para. 53.
98European Union's appellant's submission, paras. 21, 24, and 25.
99European Union's appellant's submission, para. 23.
100European Union's appellant's submission, para. 27.
101European Union's appellant's submission, paras. 27 and 28.
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request is received. Like Annex V to the SCM Agreement, the second sentence of Article 22.6 of the
DSU, regarding referrals to arbitration on the leve l of suspension of concessi ons or other obligations,
does not expressly refer to negative consensus. Ye t, it must be the case that a Member can seek
review of a request for suspension of concessions without that review being blocked by the
complaining Member through a refusal to support a consensus decision.
37. The European Union submits that this "action" versus "decision" distinction likewise applies
to Annex V to the SCM Agreement. In support of its position, th e European Union refers to:
Article 7.4 of the SCM Agreement, which provides for the establishment of a panel "unless the DSB
decides by consensus not to establish a panel"; pa ragraph 1 of Annex V, which states that "{e}very
Member shall cooperate in the development of ev idence to be examined by a panel in procedures
under paragraphs 4 through 6 of Ar ticle 7"; and paragraph 2 of A nnex V, which states that, "{i}n
cases where matters are referred to the DSB under pa ragraph 4 of Article 7, the DSB shall, upon
request, initiate the procedure to obtain such information".

38. The European Union asserts that the following te n considerations relating to the text and
context of Annex V support its position that action is in itiated by negative consensus. First, the direct
cross-reference in paragraph 2 of Annex V to Article 7.4 of the SCM Agreement provides a "strong
textual basis"102 for negative consensus to initiate an Annex V procedure, particularly in the light of
the arguments made in relation to Article 22.6 of the DSU above.
39. Second, the terms used in paragraph 2 of Annex V indicate that "the provision creates
{a mandatory} obligation on the DSB to proceed according to the terms of the treaty". 103 No such
mandatory language is used in the DSU wher e decision is required by consensus. The
European Union argues that "Members would not ob lige the DSB to act, and yet at the same time
provide the defending Member in a dispute w ith the means to frustrate such action".104 Such "internal
incoherence" would make the treaty provision "wholl y ineffective", thus, an interpretation requiring a
consensus decision must be avoided.105
40. Third, paragraph 2 of Annex V uses the term "req uest", which is also used in Articles 6.1,
22.6, and 22.7 of the DSU. This provides further support for mandatory DSB initiation upon the
satisfaction of the one condition of receiving a request.

102European Union's appellant's submission, para. 21.
103European Union's appellant's submission, para. 33.
104European Union's appellant's submission, para. 33. (original underlining omitted)
105European Union's appellant's submission, para. 33.
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41. Fourth, the ordinary meaning of the word "under" in paragraph 2 of Annex V includes
"covered by", "subject to the authority".
106 The initiation of an Annex V procedure is, therefore,
subject to the negative consensus rule in Article 7.4 of the SCM Agreement. The references to "cases"
and "matters" in paragraph 2 of Annex V also provide this link to Article 7.4.
42. Fifth, Article 2.1 of the DSU provides that the DSB administer relevant "rules and
procedures". Appendix 2 to the DSU includes Annex V to the SCM Agreement as relevant rules and
procedures for DSB rulings. The use of the term "p rocedure" in Annex V thus "clearly falls within
the scope of a DSB action by negative consensus admi nistering the rules and procedures referred to in
the DSU".107
43. Sixth, the requirement in paragraph 1 of A nnex V for every Member to cooperate in the
development of evidence and comply with the procedures "informs the remainder of Annex V" 108 and
provides strong support for the inability of a Member to block initiation of an Annex V procedure and
therefore also for mandatory action by negative con sensus. Article 1.2 of the DSU requires the same
interpretation in order to avoid conflict between different provisions. The European Union argues that
the drafters of the SCM Agreement could not have intended to ma ke initiation of an Annex V
procedure mandatory ("the DSB shall … initiate") a nd at the same time enable a Member to block
such initiation.
44. Seventh, pursuant to paragraph 5 of Annex V, the information-gathering process shall be
completed within 60 days from the matter's referral to the DSB. Therefore, there is an implicit
assumption that an Annex V procedure will be estab lished contemporaneously with the panel for the
same "matter" following the same negative consensus action.
45. Eighth, paragraphs 6 to 9 of Annex V in eff ect create penalties for the non-cooperation of a
Member. Permitting a WTO Member to block initi ation of an Annex V procedure by requiring a
consensus decision would defeat the purpose of these provisions.
46. Ninth, consequences for non-cooperation in countervailing duty investigations under
Article 12.7 of the SCM Agreement are evidence that the drafters recognized the importance of
gathering information in subsidies disputes. Therefore, in the context of subsidies disputes involving
claims of serious prejudice, there is no reason why a Member should be free to prevent information-
gathering with impunity.

106European Union's appellant's submission, para. 35 (referring to Shorter Oxford English Dictionary ,
5th edn, W.R. Trumble, A. Stevenson (eds) (Oxford University Press, 2002), Vol. 2, p. 3425).
107European Union's appellant's submission, para. 37.
108European Union's appellant's submission, para. 38.
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47. Tenth, the Appellate Body report in Canada – Aircraft confirms the general principle that
Members must cooperate during information-gathering procedures, and that it may be appropriate to
draw adverse inferences when they fail to do so.
109
48. The European Union contends that the Pane l erroneously "re-state{d}" part of the
European Communities' complaint as a request for a ruling on "a narrow factual proposition", namely,
that the DSB had initiated an Annex V pr ocedure by action by negative consensus. 110 In the
European Union's view, the Panel's reasoning is "circular and unreasonable"111 because the Panel used
as a justification for rejecting the Europ ean Communities' request precisely what the
European Communities was challenging: the absence of an Annex V procedure.
49. The European Union also relies on the object and purpose to support its view that the
initiation of the Annex V procedure "is and must be by action by negative consensus". 112 It claims
that the Annex V procedure is a "corollary and integral part" 113 of panel establishment in a dispute
settlement proceeding that is launched by negative c onsensus. Finding that initiation of an Annex V
procedure requires decision by consensus, hence allowing a veto of the defending party, would
"severely limit the ability of a complaining party to successfully bring a serious prejudice case", and
the SCM Agreement "would be severely hampered". 114 The European Union adds that the
complaining party must have a tool to prepare its serious prejudice case by obtaining the necessary
information prior to its written submissions to the panel.
50. The European Union finds confirmation of its interpretation in the preparatory work of the
SCM Agreement. In this respect, the European Union r ecalls that the substantive provisions of
Annex V to the SCM Agreement first appeared in the third draft text circulated by the Chairman of the
Negotiating Group on Subsidies and Countervailing Measu res, and that "{i}t remains clear from this
and subsequent drafts that the Annex V procedure was tied-to the panel request".
115 I n t h e
European Union's view, this explains why, when the reference to negative consensus was
subsequently added to Article 7.4 of the SCM Agreement, it was well understood that the same
decision-making rule would apply to the linked Annex V procedure.

109European Union's appellant's submission, para. 42 (referring to Appellate Body Report, Canada –
Aircraft, para. 202).
110European Union's appellant's submission, para. 50. (original emphasis)
111European Union's appellant's submission, para. 50.
112European Union's appellant's submission, para. 44.
113European Union's appellant's submission, para. 44.
114European Union's appellant's submission, para. 44.
115European Union's appellant's submission, para. 45 (referring to MTN.GNG/NG10/W/38/Rev.2,
2 November 1990).
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51. The European Union characteriz es as "particularly instructive"
116 the fact that the Annex V
procedure was added to the SCM Agreement following a proposal made by the United States. The
European Union recalls that, in the Uruguay Ro und negotiations, the United States "eloquently
explained"117 the object and purpose of its proposal, the essential elements of which were agreed to by
all Members by consensus. The European Un ion summarizes the United States' proposal as a
"wish{}" for "an information gathering procedur e hand-in-hand with a panel procedure that is
mandatory (that is, by negative consensus) backed up with a threat of adverse inferences in case of
failure to co-operate".118
52. In the light of the above, th e European Union requests the A ppellate Body to reverse the
Panel's findings denying the European Communities' requests and to complete the analysis and make
the following findings: (i) that the initiation of an Annex V procedure is by action by negative
consensus; (ii) that, as a matter of law, all the conditions for the initiation of an Annex V procedure
were fulfilled in this case, and such procedure was initiated and/or is deemed to have been initiated
and/or should have been initiated; (iii) that, in refusing to cooperate in the information-gathering
process, the United States failed to comply with its obligations under the first sentence of paragraph 1
of Annex V to the SCM Agreement; and (iv) that the European Communities was entitled to present
its serious prejudice case based on th e evidence available to it, that the Panel was entitled to complete
the record as necessary relying on best informatio n otherwise available, and that the Panel was
entitled to draw adverse inferences.119
53. At the oral hearing, the European Union placed less emphasis on the alleged distinction
between DSB "actions" and "decisions". Instead, the European Union focused its arguments on the
reasons why it considers that the DSB may deci de to initiate Annex V procedures by negative
consensus. The European Union also provided ad ditional arguments to support its view that the
Appellate Body has jurisdiction to make a ruling on this matter.
2. Financial Contribution – Scope of Article 1.1(a)(1) of the SCM Agreement
54. The European Union requests reversal or modification of the Panel's finding that
Article 1.1(a)(1) excludes "purchases of servi ces" by a government from the scope of the
SCM Agreement. However, the European Union does not re quest the Appellate Body to complete the

116European Union's appellant's submission, para. 46 (referring to MTN/GNG/NG10/W/40, 5 October
1990, pp. 2-3).
117European Union's appellant's submission, para. 46.
118European Union's appellant's submission, para. 47.
119European Union's appellant's submission, paras. 51 and 52.
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analysis by examining the USDOD RDT&E progra mme measures that were found by the Panel to
constitute purchases of services.
55. The European Union argues that, in adopting an interpretation of Article 1.1(a)(1) that
excludes purchases of services by a government from the scope of the SCM Agreement— even if those
transactions included "direct transfers of funds", "provi{sion} {of} goo ds", or other activities
specifically covered by Article 1.1(a)(1)—the Panel failed to apply properly the customary rules of
treaty interpretation codified in Articles 31 to 33 of the Vienna Convention on the Law of Treaties
120
(the "Vienna Convention"). The Panel's interpretation provides "a road map for entirely avoiding the
disciplines of the SCM Agreement", and "would allow Members to massively distort international
trade in goods, by transferring enormous amounts of funding to specific industries and companies on
non-market terms, as long as those 'transfers of funds' are pursuant to transactions properly
characterised as purchases of services". 121 The European Union contends that the Panel failed to
consider, in a holistic manner and in accordance with Article 31(1) of the Vienna Convention , the
ordinary meaning of the terms of Article 1.1(a)(1), in their context, and in the light of their object and
purpose.122 In particular, the European Union objects to the Panel's evaluation of "context" and
"object and purpose".
56. The European Union recalls that the Panel de rived two conclusions from the context provided
by Article 1.1(a)(1)(iii) and Article 14(d) of the SCM Agreement, which reference the provision of
"goods or services" and the purchase of "goods", but not the purchase of services. 123 First, that the
drafters intended such an exclusion, even if the transactions could be covered by other elements of the
definition of financial contribution; and, second, that such an interpretation would render the term
"purchases {of} goods" under Article 1.1(a)(1)(iii) inutile. The European Union notes that the
Appellate Body has, in previous cases, emphasized the holistic nature of treaty interpretation and
cautioned that an interpretation that excessively na rrows the meaning of a term in a manner that
frustrates the object and purpose of the treaty cannot constitute a "holistic" interpretation. 124 I n
finding that the ordinary meaning of the term "direct transfer of funds" in its context excludes a
significant class of direct transfers of funds (that is, those that occur pursuant to transactions properly

120Done at Vienna, 23 May 1969, 1155 UNTS 331; 8 International Legal Materials 679.
121European Union's appellant's submission, para. 103. (original emphasis)
122European Union's appellant's submission, paras. 102 and 103. The European Union recalls
approvingly the Panel's finding that the "ordinary meaning" of the phrase "a government practice involves a
direct transfer of funds" in Article 1.1(a)(1)(i) is broad enough to cover fund transfers that occur as part of a
123European Union's appellant's submission, paras. 108-110 (referring to Panel Report, paras. 7.955
and 7.956).
124European Union's appellant's submission, paras. 111 and 112 (referring to Appellate Body Report,
US – Continued Zeroing, para. 268).
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characterized as "purchases of services"), the Panel di d not rely on the context and object and purpose
to "narrow the range of possible meanings of the treaty term".
125 Nor did the Panel seek to "ascertain
the common intention of the parties" 126 to the treaty, which is the goal of treaty interpretation under
Article 31 of the Vienna Convention. Instead, the Panel put aside concerns over object and purpose,
and found that there is "every reason to believe" 127 that future panels will somehow be able to deal
effectively with "the enormous loophole potentially created by the interpretation".128
57. The European Union further alleges that the Panel erred in concluding that the
European Communities' interpretation could re nder the term "purchases {of} goods" "inutile". 129
Specifically, the Panel failed to appreciate, as pointed out by the panel in Japan – DRAMs (Korea) ,
that "certain … transactions might be covered simultaneously by differe nt sub-paragraphs of
Article 1.1(a)(1)"130, and that such overlap is not unexpected . Consequently, an interpretation that
would allow purchases of goods to be covered by two different subparagraphs of Article 1.1(a)(1) is
neither unexpected nor discouraged in some way, a nd there is no need to attempt to interpret the
ordinary meaning so as to avoid that result. Moreover, the text of the SCM Agreement itself
acknowledges that overlaps between categories of fina ncial contributions are an integral feature of
Article 1.1(a)(1), and therefore do not indicate "inuti lity" of certain subparagraphs of that provision.
As an illustration, the European Union notes that an equity infusion could fall both under
Article 1.1(a)(1)(i) as a "direct transfer of f unds", as well as under Article 1.1(a)(1)(iii) as a
"purchase{} {of} goods".
58. Moreover, the European Union asserts that the Panel also erred by dismissing the
European Communities' interpretation on the ground that "the scope a nd coverage of Article 1.1(a)(1)
of the SCM Agreement would be precisely the same if those words { i.e., 'purchases goods'} had not
been added to Article 1.1(a)(1)(iii)".
131 In the European Union's view , the scope of application of

125European Union's appellant's submission, para. 113 (quoting Appellate Body Report, China –
126European Union's appellant's submission, para. 114 (quoting Appellate Body Report, US –
Anti-Dumping and Countervailing Duties (China), para. 312).
127European Union's appellant's submission, para. 114 (referring to Panel Report, para. 7.960).
128European Union's appellant's submission, para. 114.
129Panel Report, para. 7.956.
130European Union's appellant's submission, para. 115 (referring to Panel Report, Japan – DRAMs
(Korea), para. 7.439). See also Panel Report, EC – Countervailing Measures on DRAM Chips , para. 7.92,
where that panel found that the purchase of corporate bonds constitutes a "direct transfer of funds".
131Panel Report, para. 7.956.
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Article 1.1(a)(1)(iii) may serve an important purpose that is not covered under any other subparagraph
of Article 1.1(a)(1).
132
59. With respect to the Panel's evaluation of th e object and purpose, the European Union notes
that the SCM Agreement aims to "impose multilateral disciplines on subsidies which distort
international trade" in goods.133 Moreover, the Appellate Body has held that "measures that involve a
service relating to a particular good" 134 properly fall within the scope of the Multilateral Agreements
on Trade in Goods in Annex 1A of the Marrakesh Agreement Establishing the World Trade
Organization (the " WTO Agreement "). Thus, transactions properly characterized as "purchases of
services" that nonetheless relate to a particular "good" should not fall outside the scope of the
SCM Agreement. The Panel's approach would create "a considerable gap" 135 in the coverage of the
SCM Agreement as it would allow a Member to avoid entirely the SCM Agreement simply by asking
for some type of service from a goods producer in exchange for something that would otherwise be
considered an actionable or prohibite d subsidy under Parts II and III of the SCM Agreement (whether
through a transfer of funds, foregoing of government revenue otherwise due, or provision of goods or
services).
60. Furthermore, the European Union observes that, in the application of its own test to the R&D
contracts and agreements in this dispute—that is, whether the service contract was principally for the
benefit and use of the US Government (or unrelated third parties) 136—the Panel did not eliminate the
"loophole"137 created by an exclusion of purchases of services from the scope of the SCM Agreement.
In the European Union's view, the Panel's test allows Members to package together in one transaction:
(i) a transaction properly characterized as a "purchase of services" (whether or not for market value);
and (ii) an enormous direct transfer of funds in the form of a grant. 138 Even if, as the Panel noted,

132European Union's appellant's submission, para. 117. The European Union provides an example of
such a transaction, such as where the government purch ases goods from a company, and the "consideration" for
the purchase is or includes the prom ise to exercise government discretion in enforcing regulations in a certain
way, or to provide preferential treatment in competitions for future government contracts. (Ibid.)
133European Union's appellant's submission, para. 118 (referring to Panel Report, Brazil – Aircraft ,
134Appellate Body Report, EC – Bananas III, para. 221.
135European Union's appellant's submission, para. 119. In support of its argument, the European Union
refers to the Appellate Body's finding in Canada – Autos, where the Appellate Body did not treat the omission
of the term "in law or in fact" under Article 3.1(b) of the SCM Agreement (where it was expressly included in
the preceding subparagraph 3.1(a)) as excluding a refere nce from that Article's scope of coverage of de facto
contingency on the use of domestic over imported goods. The Appellate Body explained that limiting the
application to only contingency "in law" would be contrary to the object and purpose of the SCM Agreement and
encourage circumvention of its disciplines. ( Ibid., para. 120 (referring to Appellate Body Report, Canada –
Autos, paras. 142 and 143))
136European Union's appellant's submission, para. 123 (referring to Panel Report, para. 7.1137).
137European Union's appellant's submission, paras. 121 and 123.
138European Union's appellant's submission, paras. 123 and 124.
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panels and domestic inve stigating authorities could detect transac tions not properly characterized as
"purchases of services", Members could still combin e transactions properly characterized as
"purchases of services" with grants in a manner that shields the grants from the disciplines of the
SCM Agreement.
139
61. Finally, with respect to the supplementary means of interpretation provided for under
Article 32 of the Vienna Convention , the European Union believes that the negotiating history
provides "limited insight into the conclusions th at can already be drawn under the Article 31
interpretation".140 Neither the Panel nor the parties could a ttribute any significance to the elimination
of the term "purchase of services" from earlier drafts of Article 1.1(a)(1). In particular, whereas it
remains unclear why the drafters omitted an exp licit reference to "purchase of services", "it is
unambiguously clear that the drafters did not insert an exemption in the SCM Agreement according to
which a transaction that 'involves a direct transfer of funds' or 'provi{sion} {of} goods or services
other than general infrastructure'"
141 would fall outside the scope of Article 1.1(a)(1) to the extent that
it is also considered a "purchase of services".
3. Specificity – Allocation of Patent Rights
62. The European Union claims that the Panel erre d in its interpretation of the term "granting
authority" in Article 2.1 of the SCM Agreement when it found that the "granting authority" in this case
was the US Government as a whole.
63. The European Union's asserts that the Panel did not set out a systematic interpretation of the
term "granting authority" in accordance with the Vienna Convention, but rather implicitly interpreted
the term as encompassing the highest authority of the US Government instead of the particular
authority that actually granted the subsidies at issue. The ordinary meaning of "granting authority" is
the "body or persons exercising power" that "bestow {s} or confer{s}" a subsidy "as a favour, or in
answer to a request". 142 In addition, different provisions of the SCM Agreement employ different
terms to reference the actor at issue—for example, whereas Article 2.1 refers to "granting authority",
Articles 5 and 6 use the term "Member". In the European Union's view, if the drafters of the
SCM Agreement had intended Article 2.1 to focus on the activities of the government as a whole, they
would have used the term "Member" in that provisi on as well. Thus, the use of different terms in the

139European Union's appellant's submission, para. 124.
140European Union's appellant's submission, para. 125.
141European Union's appellant's submission, para. 126. (original emphasis)
142European Union's appellant's submission, para. 72 (referring to Oxford English Dictionary ,
online version as at November 2010, availa ble at <http://www.oed.com:80/Entry/80776> and
<http://www.oed.com:80/Entry/13349>, respectively).
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SCM Agreement and other WTO agreements "confirms a di stinction between a 'Member', on the one
hand, and 'authorities' comprising a Member's in ternal governmental structures, on the other"
143, and
the European Union therefore rejects the Panel's interpretation of "granting authority" as being
equivalent to "Member". The European Union fu rther asserts that the object and purpose of the
SCM Agreement could be frustrated by an interpretation of Article 2.1 "that looks to government-wide
policies of a Member, rather than the actions and le gislation of the authority that actually provides the
subsidy".144
64. The European Union notes that, acco rding to Article 2.1(a) of the SCM Agreement, either the
"granting authority" or "the legislation pursuant to which the granting authority operates" can
"explicitly limit{} access to a subsidy", and therefore specificity can be analyzed from either of these
two points of view. Moreover, under Article 2. 1(b), which was not specifically addressed by the
Panel, specificity may likewise be evaluated from the perspective of either the "granting authority" or
the "legislation pursuant to which the granting authority operates". The United States did not properly
present a developed defence under the terms of Artic le 2.1(b), and the Panel did not evaluate the
United States' arguments according to the terms of Article 2.1(b), nor did it make any findings that the
United States had met the factual requisites of that provision. If the Panel had properly considered
Article 2.1(b), "the Parties' arguments may have ultimately turned to Article 2.1(c), pursuant to which
the European Union had also presented argument and evidence".
145 The European Union lastly
contends that, by focusing its analysis exclusiv ely on Article 2.1(a), the Panel failed to interpret
Article 2.1 in a holistic manner.
65. The European Union submits that, as a conseque nce of adopting an erroneous interpretation
of the term "granting authority", the Panel also erred in its application of Article 2.1 of the
SCM Agreement. The European Union notes that it is undisputed that NASA has its own specific
legislation and regulations concerning patent waivers. NASA's statutory basis for performing
aeronautical R&D is provided by the Space Act, which specifically states that any invention made
pursuant to a NASA contract "shall be the exclusive property of the United States, and if such

143European Union's appellant's submission, para. 74. The European Union further underlines that
several provisions of the SCM Agreement repeatedly refer to "the authorities of a Member" and "the authorities
of the importing Member", that both the SCM Agreement and the Agreement on Implementation of Article VI of
the General Agreement on Tariffs and Trade 1994 (the "Anti-Dumping Agreement") frequently and consistently
use "authority" or "authorities" as signifying an investigating authority of a Member, and that other WTO
agreements also distinguish between "authority" and "Mem ber" by utilizing the term "authority" when referring
to internal government entities. (Ibid.)
144European Union's appellant's submission, para. 76.
145European Union's appellant's submission, para. 77 (referring to European Communities' first written
submission to the Panel, paras. 854-856; and European Communities' second written submission to the Panel,
paras. 578-582).
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invention is patentable a patent therefor shall be issued to the United States"
146 unless waived by
NASA. The European Union also notes that th e Panel correctly acknowledged that, pursuant to
NASA-specific regulations, NASA generally waives patent rights to contractors at their request. 147 In
the light of such a process of requesting and granti ng patent waivers, it is clear that the "granting
authority" is NASA, and not the US Government as a whole, because the request to waive the patent
right is made to NASA, and NASA is the body that bestows or confers the patent waiver.
66. As regards USDOD patent transfers, the Eur opean Union submits that, when applying its
interpretation of "granting authority", the Panel likewise erred in finding that USDOD patent transfers
are not "specific" within the meaning of Article 2.1(a) of the SCM Agreement. The European Union
recalls the uncontested fact that, as the entity that grants the R&D contracts, the USDOD need not
waive or grant rights in favour of a contractor to inventions arising from USDOD-funded contracts. 148
As with NASA, the USDOD is the "granting author ity", because it is the body that includes in its
R&D contracts the clauses providing that contract ors are generally entitled to the rights from the
inventions developed pursuant to these contracts, a nd it is also the body that chooses not to exercise
its authority to remove this entitlement. The Panel found, as an alternative basis for specificity of the
USDOD RDT&E programme as a whole, that "RDT&E funding goes 'predominantly' to firms in the
defense industry, and this is enough to establis h de facto specificity under Article 2.1(c)". 149
Consequently, it is the European Union's contention that the transfers of patent rights deriving from
the RDT&E funding likewise go predominantly to firms in the defence industry.
150
67. In its oral statement at the first session of the oral hearing, the European Union emphasized
that it had argued before the Panel that the a llocations of patent rights under NASA and USDOD
contracts and agreements are specific, based on both Articles 2.1(a) and 2.1(c) of the SCM Agreement.
The European Union explained that, under Article 2.1(a), it had focused on the explicit limitations in
the types of R&D that NASA and USDOD could fund, and consequently the enterprises that could
benefit from the patent waivers. The European Union noted that it had presented evidence to the
Panel regarding the manner in which discretion has been exercised by the granting authority in the
decision to grant a subsidy in accordance with Artic le 2.1(c). It had also argued that Boeing,

146Space Act, section 305(a)(2).
147European Union's appellant's submission, para. 80 (referring to Panel Report, para. 7.1287).
148European Union's appellant's submission, para. 88 (referring to Panel Report, para. 7.1291).
149Panel Report, para. 7.1197.
150The European Union points out that the United States did not contest the key underlying facts
regarding the RDT&E funding, for example, the aver age share of RDT&E fundin g distributed to Boeing
(12.6%) and to five aerospace companies (45.2%). (European Union's appellant's submission, para. 91 (referring
to United States' first written submission to the Panel, para. 338)) Accordingly, in the European Union's view, if
the proper "granting authority" is determined, such undisputed facts provide a strong basis for a finding of
specificity within the meaning of Article 2.1 of the SCM Agreement. (Ibid.)
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together with four other companies, received up to 45% of the total USDOD R&D funding, which
also supports a finding of disproportionality. The Panel failed to consider any of the
European Communities' evidence and arguments regard ing Article 2.1(c) and hence ignored the third
set of principles in that provision. In the European Union's view, the Panel's failure to consider the
actions of the authorities that exercise the discretion to grant a subsidy creates an important gap in the
subsidy disciplines. In the case at issue, NASA and the USDOD had some discretion in deciding
whether to waive/transfer the patent rights, and wh ether to enter into the R&D contracts in the first
place. However, although there was a claim of de facto specificity pursuant to Article 2.1(c), the
Panel came to a sudden and unexpected halt after considering the arguments under Article 2.1(a). The
European Union therefore considers that the Pane l failed to provide the holistic interpretation and
application of Article 2.1 required by the SCM Agreement.
4. Adverse Effects
68. The European Union requests the Appellate Body to: (i) reverse the Panel's finding that it
was not "appropriate to aggregate" the effects of the B&O tax rate reductions with the effects of the
aeronautics R&D subsidies in the 200-300 seat LCA market151; (ii) reverse the Panel's finding that the
remaining subsidies, on their own, do not cause adverse effects152; and (iii) reverse the Panel's finding
that the USDOD RDT&E programmes (other th an the Manufacturing Technology Program
("ManTech programme") and the Dual Use Science and Technology Program ("DUS&T
programme")) do not cause the same effects as the ot her aeronautics R&D subsidies, at least to the
extent that the remaining USDOD RDT&E progra mmes are funded through assistance instruments.153
In connection with the second of these requests, th e European Union further requests the Appellate
Body to complete the analysis and find that, wh en aggregated with the tax subsidies (or the
aeronautics R&D subsidies and the tax subsidies) that were found to cause adverse effects, the
remaining subsidies also cause adverse effects. The European Union does not seek to have the
Appellate Body complete the analysis with respect to the other two grounds of appeal.
(a) Collective assessment of the aer onautics R&D subsidies and the
B&O tax rate reductions and their effects
69. The European Union submits that the Panel e rred in its interpretati on and application of
Articles 5 and 6.3 of the SCM Agreement when it declined to assess the cumulative effects of the B&O
tax rate reductions and the aeronautics R&D subsidies in the 200-300 seat LCA market. The reason
given by the Panel for assessing the effects of these two groups of subsidies separately—that the two

151Panel Report, para. 7.1824.
152Panel Report, para. 7.1828.
153Panel Report, para. 7.1701.
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groups of subsidies operate through "entirely distinct causal mechanisms"
154—ignores the fact that
both contributed to a negative commercial impact on Airbus LCA in the 200-300 seat LCA market,
and is not a legitimate basis to refrain from assessi ng the cumulative effects of all of the subsidies.
Although panels enjoy a certain degree of discr etion in selecting an appropriate methodology for
determining the effects of a subsidy, this discre tion is not unbounded, and does not permit a panel to
isolate or compartmentalize its analysis so as to mask the contribution of any subsidy to adverse
effects. Rather, a proper interpre tation of Articles 5 and 6.3 of the SCM Agreement requires panels to
assess—quantitatively or qualitatively—the collective e ffects of all subsidies that impact competition
in the market at issue.
70. The European Union suggests that the following ap proach is the proper one to take. Initially,
a panel should examine the nature of the individual s ubsidies, in terms of their structure, design, and
operation, and aggregate in a group those specific subsidies that have a sufficient nexus to the
subsidized product and have a similar structure, d esign, and operation. Next, a panel should assess,
by individual subsidy or group of subsidies, wh ether and how each subsi dy or group of subsidies
provides a competitive advantage to the subsidized pr oducer and its products in the market. At this
stage of its analysis, as the Appellate Body has stat ed in previous disputes, a panel has a degree of
discretion to structure its approach, and to select the evidence on which to rely.155 Irrespective of how
a panel exercises that discretion, ultimately it mu st assess—quantitatively or qualitatively—whether
the collective competitive impact of the different (groups of) subsidies found to have a negative
impact on competition in the market causes one or more of the particular forms of adverse effects
listed in Article 6.3 of the SCM Agreement.
71. The European Union relies upon the text of Articles 5 and 6.3, in their context, as well as the
object and purpose of the SCM Agreement, in support of its position. The broad reference in Article 5
to "the use of any subsidy "156, coupled with the broad reference in Article 6.3 to a "subsidized
product", shows that neither provision distinguishes between different types of subsidies, and suggests
that these provisions discipline the collective impact of any and all subsidies benefiting the subsidized
product in the market at issue. These provisions make no reference to or distinction between any
particular causal mechanisms. Accordingly, in un dertaking the causation analysis required by these
provisions, a panel must consider collectively the effects of all subsidies that support the same product
and negatively impact competition in the market at issue in determining whether they amount to
adverse effects within the meaning of Article 6. 3. Articles 5 and 6.3 provide no support for an

154Panel Report, para. 7.1824.
155European Union's appellant's submission, para. 202 (referring to Appellate Body Report, US –
Upland Cotton, para. 436; and Appellate Body Report, US – Upland Cotton (Article 21.5 – Brazil), para. 370).
156Emphasis added by the European Union.
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interpretation that the effects of different subs idies cannot be assessed cumu latively simply because
those subsidies affect competition th rough "distinct causal mechanisms".
157 The now expired
Article 6.1 of the SCM Agreement also provides contextual support for a cumulative assessment of the
effects of subsidies in two ways. First, in determining whether subsidies rise to an ad valorem level
of subsidization sufficient to trigger the presumption of serious prejudice, Article 6.1(a) and Annex IV
mandated that all subsidies be included (except those that are non-actionable). Second,
Article 6.1(b), (c), and (d) indicate that, when the drafters of the SCM Agreement wished to require
isolation of the effects of particular types of s ubsidies, they did so explicitly. Those provisions
expressly identified types of subsidies that benefited the subsidized product and affected the market at
issue through a particular causal mechanism (subs idies covering operating losses for an industry or
enterprise, as well as direct forgiveness of debt) and created a presumption of serious prejudice. By
contrast, Article 6.3 makes no distinction between subsidies based on their type or causal mechanism;
instead, it focuses on the effects of subsidies.
72. Moreover, the Panel's interpretation undermines the object and purpose of the
SCM Agreement, which requires that its provisions be interpreted so as to "strengthen and improve"158
the actionable subsidy disciplines, rather than undermine them. The Panel's interpretation would
enable Members to escape a finding of serious prejudice by providing a series of small subsidies each
of which affects the recipient in a slightly differe nt way. Under the Panel's approach, because these
small subsidies work along different causal pathways, their effects may not be cumulated. Thus, such
subsidies could not be found to cause adverse effects if each, on its own, causes a degree of trade
distortion that is insufficient to amount to adver se effects. In reality, however, the respondent
Member would, "through the use of any subsidy re ferred to in paragraphs 1 and 2 of Article 1,
{cause} adverse effects".
159 The Panel's approach, therefore, undermines the object and purpose of
the SCM Agreement. In US – Upland Cotton , the Appellate Body highlighted the importance of
examining whether the non-price-contingent subsidies "contribute to price suppression" 160, which the
European Union considers to be fully consistent with an approach whereby an assessment under
Articles 5 and 6.3 would require consideration of whether each challenged specific subsidy benefiting
a common subsidized product contributes to the same adverse effects claimed.

157Panel Report, para. 7.1824.
158European Union's appellant's submission, para. 210.
159European Union's appellant's submission, para. 211 (quoting Article 5 of the SCM Agreement).
160Appellate Body Report, US – Upland Cotton, footnote 589 to para. 450. The European Union notes
that Brazil did not appeal the panel's refusal to cumulate any effects of non-price-contingent subsidies.
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73. The European Union recalls its argumen ts before the Panel that: (i) " the aeronautics R&D
subsidies ... 'have helped Boeing develop, launch a nd produce a technologically-advanced 200-300
seat LCA much more quickly than it could have on its own'"
161; and (ii) " all of the subsidies have ...
'price effects' in that they have enabled Boeing to charge lower prices for its LCA". 162 T h e
United States did not address the issue of aggregati on, because it argued that the subsidies had neither
technology effects nor price effects. Because the European Communities raised claims and presented
arguments regarding the adverse effects caused jointly by the B&O tax rate reductions and the
aeronautics R&D subsidies in the 200-300 seat LCA market, the Panel was required to assess the
effects of these subsidies cumulatively. The Europ ean Union highlights, in this regard, that, with
respect to the 100-200 seat and 300-400 seat LC A markets, the Panel found "inescapable" 163 its
conclusion that the cumulative effects of the FSC /ETI subsidies and the B&O tax rate reductions
caused significant price suppression, significant lost sales, and displacement and impedance to the
European Communities' interests. These are th e same forms of adverse effects that the
European Communities claimed the B&O tax rate reductions have caused in the 200-300 seat LCA
market.164 Given, therefore, that the evidence that was before the Panel suggests that the B&O tax
rate reductions could contribute to the adverse e ffects caused by the aeronautics R&D subsidies, both
of which benefit the 787, the Panel was requi red to assess the effe cts of these subsidies
cumulatively—even if it found that, "on their own" 165, the B&O tax rate reductions were not shown to
cause adverse effects in that market.
74. The European Union considers that the Appellate Body report in EC and certain member
States – Large Civil Aircraft supports its claim that the Panel's failure to aggregate the effects of the
B&O tax rate reductions with the effects of th e aeronautics R&D subsidies in the 200-300 seat LCA
market amounts to reversible legal error. In that dispute, the Appellate Body recognized that a panel's
discretion to structure its causation analysis is not unlimited and cannot absolve it from having to
establish a genuine and substantial relationship of cause and effect. As the United States argued in
that appeal, "isolating certain subsidies from a pa nel's causation analysis 'would permit circumvention
of the disciplines of Article 6.3 in the case of sm aller measures that individually would not have
caused adverse effects, but which collectively would affect competition in a manner inconsistent with

161Panel Report, para. 7.1597 (quoting European Co mmunities' first written submission to the Panel,
para. 1343). (emphasis added by the Panel)
162Panel Report, para. 7.1598 (quoting European Communities' first written submission to the Panel,
para. 1229). (emphasis added by the Panel)
163Panel Report, para. 7.1822.
164European Union's appellant's submission, para. 216 (referring to Panel Report, para. 7.1822).
165European Union's appellant's submission, para. 216.
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Articles 5 and 6.3'."
166 The Appellate Body clarified that, wh en individual subsidies are aggregated,
causation may be established for all of those aggregated subsidies, even if some individual subsidies
(or groups of subsidies) could not be found to be a genuine and substantial cause of adverse effects if
considered separately.
75. The European Union further notes that, in that dispute, the Appellate Body also held that
subsidies may be aggregated in some circumstan ces, even where those subsidies have important
"differences in the{ir} nature and operation", which "may suggest that these measures ha{ve} distinct
effects".167 The Appellate Body found that, as long as the discrete subsidies "all have a genuine
causal link" with the claimed market impact, th ey can be considered as "complement{ing} and
supplement{ing}" each other. 168 The Appellate Body further found that subsidies that were quite
distinct from the launch aid/member State financ ing ("LA/MSF") subsidies in form, design, and
operation (equity infusions, runway extensions, and other infrastructure subsidies) should be
aggregated with the LA/MSF subsidies. In this case, the B&O tax rate reductions complement and
supplement the effects of the aeronautics R&D subs idies, because they suppo rt Boeing's ability to
achieve a pricing advantage. Thus, according to the European Union, having found that the
aeronautics R&D subsidies allow Boeing to suppress Airbus' pricing in the 200-300 seat LCA market,
and having also found that the B&O (along with the FSC/ETI) tax subsidies had the capacity to
suppress Airbus' pricing in the 100-200 seat and 30 0-400 seat LCA markets, the Panel should have
aggregated the B&O tax rate reductions for the 200-300 seat LCA market with the aeronautics R&D
subsidies.
(b) Collective assessment of the tied tax subsidies and the remaining
subsidies and their effects
76. The European Union asserts that the Panel also erred in its interpretation and application of
Articles 5 and 6.3 of the SCM Agreement by failing to aggregate the tied tax subsidies with the
remaining subsidies. The European Union requests the Appellate Body to reverse the Panel's finding
that the remaining subsidies do not, on their own, cau se adverse effects, and to find, instead, that the
remaining subsidies also cause adverse effects when aggregated with the tied tax subsidies (or with
the aeronautics R&D subsidies coupled with the tied tax subsidies) that we re found to cause adverse
effects. Given the adverse effects finding for the tied tax subsidies alone, a proper cumulative
analysis must also result in an adverse effects finding for the remaining subsidies.

166European Union's appellant's submission, para. 726 (quoting Appellate Body Report, EC and certain
member States – Large Civil Aircraft, para. 1367).
167Appellate Body Report, EC and certain member States – Large Civil Aircraft, para. 1397.
168European Union's appellee's submission, para. 733 (quoting Appellate Body Report, EC and certain
member States – Large Civil Aircraft, para. 1397).
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77. Referring to the statement by the panel in EC and certain member States – Large Civil
Aircraft, the European Union submits that it is appropr iate to aggregate subsidies that complement
and supplement each other in circumstances where th e subsidies have a "sufficient nexus with the
subsidized product ... {and} they also have a suffici ent nexus with 'the par ticular effects-related
variable{s} under examination'".
169 It follows that the Panel in this case should not have segregated
its adverse effects analysis so that it could take account of the combined market effect of subsidies
that collectively enhance Boeing's ca sh flow and ability to price down its LCA. Both the remaining
subsidies and the tied tax subsidies contribute to pri ce effects and also satisfy the requirements set out
by the panel in US – Upland Cotton for an "integrated examination of effects of any subsidies", in that
the remaining subsidies (i) have "a sufficient nexus " with the "subsidized product" (that is, Boeing
LCA) and (ii) impact the same "effects-related variable" as the tie d tax subsidies (that is, price). 170
Furthermore, the Appellate Body in the US – Upland Cotton dispute recognized that
non-price-contingent subsidies could nevertheless contribute to price suppression, and thereby implied
that the panel could have aggregated non-price- contingent subsidies with the price-contingent
subsidies.171
78. The European Union considers that the Appellate Body report in EC and certain member
States – Large Civil Aircraft further supports its claim that the Panel's failure to aggregate the effects
of the tied tax subsidies with the effects of the remaining subsidies constitutes legal error. The
Appellate Body's findings in that case show that s ubsidies of a different nature can be aggregated
when they have a genuine causal link with the same ove rall effect claimed. In this dispute, the Panel
found that the remaining subsidies increased the am ount of cash benefitting Boeing by $550 million.
Instead of finding that subsidies "of this amount" 172 did not result in market effects rising to the level
of serious prejudice, the Panel should have combined the effects of those subsidies with the effects of
the other subsidies causing the same market effect s. The effects of these two groups of subsidies
complemented and supplemented the "perv asive and consistent pricing advantage" 173 enjoyed by
Boeing resulting from the effects of the tied tax subs idies, because Boeing had those additional funds
at its disposal to use in strategic sales campaigns . Thus, having found that the tied tax subsidies
caused, in and of themselves, serious prejudice, th e Panel should have cont inued its analysis and
found that the remaining subsidies complement a nd supplement the pricing effects of those tax
subsidies.

169Panel Report, EC and certain member States – Large Civil Aircraft, para. 7.1961.
171European Union's appellant's submission, para. 230 (referring to Appellate Body Report, US –
172Panel Report, para. 7.1828.
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79. The European Union also argues that the Pane l erred in not cumulating the effects of the
remaining subsidies with the effects of both the aer onautics R&D subsidies and the tied tax subsidies.
The Panel was tasked with assessing whether the u se of the challenged subsidies cause adverse
effects, and erred by limiting its assessment to the question of whether the remaining subsidies, on
their own, cause adverse effects. By failing to take the proper analytical steps to cumulate the effects
of the remaining subsidies with the effects of th e aeronautics R&D subsidies (and the effects of the
tied tax subsidies), the Panel failed to comply with the causation requirements under Articles 5
and 6.3 of the SCM Agreement.
5. Article 11 of the DSU
80. The European Union argues that the Panel acted inconsistently with the principle of due
process on two separate, but related, grounds when it decided to exclude all but two of the USDOD
RDT&E programmes from its adverse effects analysis. The European Union claims that the Panel's
"predominan{ce}"174 approach was articulated for the first time in the Final Report issued by the
Panel to the parties; consequently, the parties were not afforded an opportunity to comment on this
approach. The European Union argues that the appr oach the Panel took in the Final Report could not
have been anticipated by the parties, given that both parties opposed the idea of separating
procurement contracts from assistance instruments for purposes of determining the existence of a
subsidy and adverse effects. Along the same lines, the European Union contends that the Interim
Report explained that the only reason for ex cluding all but two USDOD RDT&E programmes was
that the Panel did not have sufficient evidence about whether such programmes funded assistance
instruments as opposed to procurement contracts. By contrast, the Panel then introduced in the Final
Report a different standard, namely, whether the USDOD RDT&E programmes at issue " funded
predominantly assistance instruments, as opposed to procurement contracts, or a mixture of assistance
instruments and procurement contracts".175
81. Second, the European Union contends that, although the Panel recognized the insufficiency of
evidence to ascertain the effects of assistance instruments alone, the Panel failed to seek from the
United States the necessary informati on, despite the fact that the United States consistently ignored
the European Communities' requests to produ ce information that would have permitted a
contract-by-contract analysis. To the extent that the Panel chose to apply its "unexpected"
"predominan{ce}" approach, the European Union a lleges that "it was imperative for the Panel to
request the contract information from the United St ates that the European Union had been seeking to

174European Union's appellant's submission, para. 246 (referring to Panel Report, para. 7.1701).
175European Union's appellant's submission, para. 2 46 (quoting Panel Report, para. 7.1701). (emphasis
added by the European Union)
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enable it to make the assessment it cons idered necessary to resolve the dispute".
176 However, despite
adopting the novel "predominan{ce}" approach, the Panel never directed enquiries to the
United States under Article 13 of the DSU, nor did it draw adverse inferences from instances of the
United States' non-cooperation in disclosing relevant contracts.
82. Consequently, in the European Union's view, the Panel failed to protect the due process rights
of the European Communities and th erefore acted inconsistently with its obligations under Article 11
of the DSU. In addition, the European Union argu es that the consequences of these Panel errors were
aggravated by the United States' continuing failure to disclose the RDT&E contracts and details about
the RDT&E programme elements that were exclus ively in its possession. Similar to the panel's
approach in US – Continued Zeroing , the European Union submits that the Panel "required evidence
…, but then did not take the necessary steps to elicit from the parties information that might …
'elucidate its understanding of the facts and issues in the dispute before it'." 177 In that dispute, the
Appellate Body found that the panel had violated Article 11 of the DSU.
83. While the European Union requests the Appellate Body to reverse the Panel's finding that the
USDOD RDT&E programmes—other than the Ma nTech and DUS&T programmes—do not cause the
same effects as the other aeronautics R&D subsid ies, the European Union does not request the
Appellate Body to complete the analysis.
B. Arguments of the United States – Appellee
1. Annex V to the SCM Agreement
84. The United States submits that both the initiation of an Annex V procedure and the
designation of a facilitator require a DSB decision by positive consensus. Neither can occur without
the DSB reaching a "decision", which is defined as "{t}he action of coming to a determination or
resolution with regard to any point or course of action; a resolution or conclusion arrived at". 178
Article 2.4 of the DSU and footnote 3 to Article IX:1 of the WTO Agreement establish a general rule
requiring positive consensus for DSB decisions unless otherwise expressly specified—such as in
Articles 6.1, 16.4, 17.14, 22.6, and 22.7 of the DSU, which "all provide for the DSB to take specified
procedural steps 'unless the DSB decides by co nsensus not to' take that procedural step".
179
Articles 4.4 and 7.4, Articles 4.8, 4.9, 7.6, and 7.7, and Articles 4.10 and 7.9 of the SCM Agreement

176European Union's appellant's submission, para. 251.
177European Union's appellant's submission, para. 258 (quoting Appellate Body Report, US –
Continued Zeroing, para. 347, in turn quoting Panel Report, US – Continued Zeroing, footnote 20 to para. 6.20).
178United States' appellee's submission, para. 54 (quoting The New Shorter Oxford English Dictionary ,
4th edn, L. Brown (ed.) (Clarendon Press, 1993), Vol. 1, p. 608).
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require the same. Given that Annex V prescribes no specific decision-making rule, the general rule of
positive consensus must apply. Initiation of a pro cedure and designation of a DSB representative as
facilitator are actions that fall within the ordinary meaning of "decision", and as such they require the
consensus of the DSB under Article 2.4 of the DSU and Article IX:1 of the WTO Agreement.
85. The United States notes that its position is in line with the consistent practice of the DSB,
which has in all past cases initiated Annex V pr ocedures and designated facilitators by positive
consensus. Furthermore, before subsequently reversing its position in this dispute, the
European Communities itself "vigorously advocated the view that initiation of an Annex V process is
subject to positive consensus"
180 in opposing the United States' request for initiation of an Annex V
procedure in EC and certain member States – Large Civil Aircraft . In the context of that dispute, the
European Communities expressed to the DSB its view that, "consistent with WTO jurisprudence, an
Annex V procedure could not be initiated by only one party to a dispute, but required a meeting of the
minds; an actual agreement between the parties".181
86. The United States adds that there is "no support in the 'overall framework' of the DSU for the
distinction the {European Union} seeks to draw betw een 'decisions' and 'actions' of the DSB, or the
different decision-making rules the {European Union} would assign to each". 182 The "overall
framework" of the DSU calls for the DSB to do a number of different things, but does not divide these
functions into "actions" and "decisions". The DSU uses the term "action" in connection with the DSB
only three times, in Articles 2.1, 21.7, and 21.8, and in none of these provisions does the use of the
term "action" support the existence of the action/d ecision dichotomy posited by the European Union.
Article 2.1, in particular, merely states a special rule identifying which Members may participate in
dispute settlement matters under the Plurilateral Trad e Agreements, and cannot serve as the type of
"framing principle" 183 that the European Union contends it does. Moreover, the European Union's
argument that the DSB does not take a "decision" in establishing a panel (Article 6.1), adopting panel
and Appellate Body reports (Articles 16.4 and 17. 14), or authorizing the suspension of concessions
(Articles 22.6 and 22.7) "rests on a misperception of the nature of a decision". 184 A decision is a
particular type of action.185 Whether a panel is established or there is a consensus not to establish a
panel, the DSB has taken a decision regarding the est ablishment of a panel. Furthermore, when the
DSB establishes a panel or adopts a report, it declares that it has "agreed to establish a panel" or that it

183United States' appellee's submission, para. 62. (footnote omitted)
185See United States' appellee's submission, footnote 94 to para. 62.
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"adopts" the report. This indicates that the DSB is not a "passive spectator"
186, but that it considered
an action and took a decision with regard to that action. Thus, to the extent that the overall framework
of the DSU is relevant to the initiation of an Anne x V procedure, it indicates that the DSB operates by
positive consensus except where explicit exceptions provide otherwise. The United States stresses
that no such express exception applies to the initiati on of an Annex V procedure or the designation of
a DSB representative to facilitate such procedure.
87. The United States also emphasizes that, even though the information-gathering procedure
contemplated in Annex V is related to a pane l's review of claims under Article 6 of the
SCM Agreement, Annex V calls for a collaborative procedur e independent of th e panel proceedings
and which operates under different rules. Such procedure is "completely optional"187 in the sense that
it may well be that neither party requests it in a given dispute. Only the DSB, and not the panel, has a
role in such process. Indeed, since the duration of the process is limited to 60 days, it may well be
that the panel will not have been composed for a substantial part of that period. Furthermore,
Annex V provides no detailed guidance regarding procedures thereunder, and the DSB representative,
whose "sole purpose"188 is to ensure the timely development of the necessary information, has none of
the authority of a panel. Accordingly, the United States reasons that there is no basis to transpose
procedural rules applicable to panels into the Annex V procedure.
88. With respect to the ten points raised by the Eu ropean Union in support of its argument that
initiation of an Annex V procedure is a DSB action subject to negative consensus, the United States
characterizes the first, fourth, and seventh points as no n sequiturs. The fact that there is a relationship
between an Annex V procedure and a panel's review of claims under Article 6 of the SCM Agreement
says nothing about the procedures applicable to the respective initiation or administration of each.
The DSB uses negative consensus fo r some dispute-related decisi ons, and positive consensus for
others, such as authorizing the Chair of the DSB to draft non-standard terms of reference. Moreover,
some steps—such as requesting consultations, beco ming a third party to a dispute, or referring a
matter to arbitration under Article 22.6 of the DS U—do not require any action by the DSB. This
means that it is not safe to assume, simply because a pro cedure is related to a dispute, that it is subject
to negative consensus. It also m eans that the reference in paragraph 2 of Annex V to Article 7.4 of
the SCM Agreement does not import a negative-consensus decisi on rule. Instead, this cross-reference
simply identifies establishment of a panel as a precondition for initiation of an Annex V procedure.

188United States' appellee's submission, para. 66 (quoting Annex V, para. 6). (emphasis added by the
United States)
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89. The United States also takes issue with the Euro pean Union's contentions that the references
in Annex V to "under", "cases", and "matters" mean that an Annex V procedure and a panel
establishment are not separate. The phrase "under paragraph 4 of Article 7" simply clarifies that
Annex V is not available when a panel is establis hed under another provision —such as Article 4.4 of
the SCM Agreement—and does not suggest that Article 7.4 go verns initiation of an Annex V process
or designation of a DSB representative as facilitator. Additionally, since a "matter" is a specific
measure and the legal basis of a complaint, an Anne x V procedure is not a "matter", but merely "one
procedural step that may occur in the process of addressing a matter".
189 Just because an Annex V
procedure is related to a matter does not mean th at the decision-making rules are the same. The
United States further contests the European Union' s assumption that the initiation of an information-
gathering procedure will occur upon establishment of a panel. Para graph 5 of Annex V sets a 60-day
limit from the date on which the matter has been referred to the DSB for completion of the
information-gathering process, without regard to th e actual date of initiation. Such a time-limit does
not indicate that the rules for establishing a pane l (such as the negative consensus rule) apply to
initiation of an Annex V procedure.
90. The United States also rejects the European Union' s third and fifth consid erations that textual
linkages between Annex V and provisions of the SCM Agreement indicate a negative consensus rule
for decisions related to Annex V. A Member's "r equest" can trigger a positive or negative consensus
decision under the DSU. This is best demonstrated by Article 6.1 of the DSU, pursuant to which a
"request" to establish a panel requires positive con sensus at the first DSB meeting at which the
request is presented, but then the same requ est requires negative consensus at the second DSB
meeting. Furthermore, although the word "procedur e" in paragraph 2 of Annex V is linked to the
"rules and procedures" that Article 2.1 and Appendix 2 to the DSU provide for the DSB to administer,
this does not imply a negative consensus rule, b ecause the DSB administers many procedures through
positive consensus, such as decisions establishing a single panel or modifying procedures for
particular disputes.
91. In the view of the United States, the European Union's second, sixth, eighth, ninth, and tenth
considerations all raise the spectre that a positiv e consensus approach to Annex V procedures would
render them "wholly ineffective". 190 Recalling that the DSB has used positive consensus for many

190United States' appellee's submission, para. 75 (referring to European Union's appellant's submission,
pars. 33).
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decisions relating to disputes, including for initiation of Annex V procedures, the United States
observes that the European Union's "alarmism"
191 is unwarranted.
92. For the United States, a positive consensus rule comports more with the collaborative nature
of initiating an Annex V procedure and designating a representative of the DSB as facilitator. Indeed,
the United States cautions that, given the structur e of Annex V, a negative consensus rule for the
appointment of a facilitator would be "unworkable" 192, because Annex V establishes no default
procedures except for partial supervision by a DSB representative, who has very limited authority.
The United States disagrees with the European Un ion's argument that the drafters of the
SCM Agreement could not have intended to make initiation of an Annex V procedure mandatory and,
at the same time, made it possible for a Member to block such initiation. For the United States, the
relevant provisions—including Article 2.4 of the DSU—simply reflect a balance in the system, and
are but one illustration of circumstances in which the DSB is expected to act, but it must do so by
consensus. Decision-making by consensus requires Members to work together to find solutions.
While this may be difficult, the rule ensures that the solution reached reflect s the collective interests
of all Members.
93. The United States specifically refutes the sixth point of the European Union—namely, that
the existence of the general obligation to coope rate that paragraph 1 of Annex V places on all
Members confirms that initiation must be subject to negative consensus— because it cannot be the
case that the drafters created "an obligati on to cooperate, but a right to do nothing". 193 Paragraph 1 of
Annex V creates a generalized obligation to cooperat e in developing evidence that is separate and
independent from the procedure contemplated under paragraph 2. The obligation applies even if there
is no request under paragraph 2 for an Annex V pr ocedure, and it extends beyond such a procedure
because it also covers the provision of informati on sought by the panel under Article 13 of the DSU,
the submission by parties of information in suppor t of their arguments, and any other procedure that
develops information during the course of the panel proceeding.
94. As to the eighth argument of the European Union, the United States highlights that the
consequences of non-cooperation set out in paragra phs 6 to 9 of Annex V are in fact an explicit
recognition of the possibility that the parties wi ll fail to cooperate, and highlights that such
consequences—the use of the best information av ailable or the drawing of adverse inferences—are
essentially the same as those relating to non-cooper ation in the context of panel proceedings.

193United States' appellee's submission, para. 78 (quoting European Union's appellant's submission,
para. 38).
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Therefore, blocking an Annex V procedure does not relieve a Member of its obligation to respond to a
panel's request for information or shield the Member from the consequences of failing to do so.
95. Responding specifically to the European Union's ninth argument, the United States argues
that a domestic countervailing duty proceeding is not akin to an Annex V procedure. Like
investigating authorities whose requests for informat ion are not satisfactorily answered, a panel may
rely on the best information available when a pa rty fails to provide the requested information.
Furthermore, and with respect to the European Un ion's tenth point, a panel's information-gathering
capabilities and powers to use the best available in formation and draw adverse inferences are not
affected by the presence or absence of an Annex V procedure.
96. With respect to the object and purpose of the SCM Agreement
194, the United States submits
that interpreting the relevant provisions to mean that an Annex V procedure is initiated by positive
consensus conforms to the object and purpose of the SCM Agreement by requiring a collaborative
approach that balances the needs and sensitivities of the complaining party and the responding party.
In contrast, accepting the position of the European Union would allow the complaining party to
dictate the procedural rules. This is illustrated by the fact that the European Union goes as far as to
argue that, not only does the DSB designate a re presentative by negative consensus, but the
complaining party may also unilaterally choose the candidate for the post. 195 Such a result would, in
the view of the United States, upset the "delicate balance" 196 that the SCM Agreement strikes between
the interests of complaining parties and responding parties.
97. Lastly, the United States urges the Appellate Body to attach no weight to the
European Union's reliance on the negotiating history of the SCM Agreement and the original proposal
for an information-gathering pro cedure. The United States disagre es with the European Union's
argument that the negotiating history makes "clear" that "the linked Annex V procedure would follow
the same procedure" 197 as set out in Article 7.4 of the SCM Agreement. Moreover, the United States
emphasizes that its proposal during the Uruguay Rou nd negotiations was premised on the lack of "an

194The United States recalls that the object and purpose of the SCM Agreement has been held to be
"to strengthen and improve GATT disciplines relating to the use of both subsidies and countervailing measures,
while, recognizing at the same time, the right of Memb ers to impose such measures under certain conditions".
(United States' appellee's submission, para. 83 (quoting Appellate Body Report, US – Softwood Lumber IV ,
para. 64, in turn referring to Appellate Body Report, US – Carbon Steel, paras. 73 and 74))
195United States' appellee's submission, para. 84 (referring to, inter alia , European Communities'
196United States' appellee's submission, para. 84 (quoting Appellate Body Report, US – Anti-Dumping
and Countervailing Duties (China) , para. 301; and Appellate Body Report, US – Countervailing Duty
Investigation on DRAMS , para. 115; and referring to Appellate Body Report, US – Softwood Lumber IV ,
para. 64).
197United States' appellee's submission, para. 85 (quoting European Union's appellant's submission,
para. 45).
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information-gathering mechanism or a means for assuring the co-operation of the party in possession
of information necessary to demonstrate adverse effects"
198 in the Tokyo Round Agreement on
Interpretation and Application of Articles VI, XVI and XXIII of the General Agreement on Tariffs and
Trade199 (the "Tokyo Round Subsidies Code"). The situation is different under the DSU, which, as the
Appellate Body has recognized, endows panels with the authority to draw adverse inferences from a
Member's refusal to provide information and, thereby, provides a strong incentive for cooperation.200
2. Financial Contribution – Scope of Article 1.1(a)(1) of the SCM Agreement
98. The United States agrees with the Panel that tran sactions that are properly characterized as
"purchases of services" fall outside the scope of Article 1.1(a)(1) and, consequently, of the
SCM Agreement. In the United States' view, this finding is "beyond reproach".201
99. The United States underscores that a proper interpretation of the SCM Agreement gives
meaning to all of its terms and does not in sert words and concepts that are not there. 202 Moreover, as
the Appellate Body has stated, it involves a "holistic exercise" 203 of applying relevant interpretative
rules to derive the meaning of the terms of a treat y so as to enforce the parties' intentions. The
United States argues that the object and purpose of th e treaty, which is stated at a "high level of
generality"204, cannot be elevated over other considera tions. An attempt to read "purchases of
services" into the text of Article 1.1(a)(1) "so as to advance 'holistic' goals divined from the object and
purpose" would be incompatible with the principles of treaty interpretation. 205 M o r e o v e r , t h e
United States disagrees that an interpretati on that "narrows the meaning of a term" 206 necessarily
frustrates the object and purpose of the SCM Agreement. Rather, consistent with previous

198United States' appellee's submission, para. 86 (quoting MTN.GNG/NG10/W/40, p. 2).
199BISD 26S/56, entered into force 1 January 1980.
200United States' appellee's submission, para. 86 (referring to Appellate Body Report, Canada –
Aircraft, para. 202).
202United States' appellee's submission, para. 154 (referring to Appellate Body Reports in India –
203Appellate Body Report, China – Publications and Audiovisual Products, para. 399; Appellate Body
Report, US – Continued Zeroing, paras. 268 and 273.
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Appellate Body jurisprudence, the object and purpose of the SCM Agreement reflects a "delicate
balance"
207 that lies at the heart of the Agreement.
100. For the United States, the European Union's specific criticisms of the Panel's interpretation do
not provide a basis for including purchases of services within the scope of the SCM Agreement. First,
the Panel engaged in a "careful consideration of all text and context, including how each provision
informed the scope of the others"208 in a type of holistic exercise previously endorsed by the Appellate
Body. Contrary to the European Union's arguments, the Panel applied all of the relevant rules of
treaty interpretation in a manner consistent with the Appellate Body's guidance.
101. The United States also asserts that the Panel co rrectly treated the list of categories under the
subparagraphs of Article 1.1(a)(1) as "closed" 209, and as imparting meaning to each other. Unlike
other provisions of the SCM Agreement—including those relating to "benefit" (Articles 1.1(b) and 14)
and "export contingent" subsidies (A rticle 3.1(a)), which set out a non-exhaustive list of terms that
inform the breadth of these terms—the closed list of transactions included in the definition of
"financial contribution" in Article 1.1(a)(1) is stru ctured so that a transaction that does not fall within
one of the listed categories is not covered by the Agreement. For the United States, there must be
precision with respect to which subparagraph th e specific transaction falls under, as this has
repercussions for other aspects of a subsidy analysis , such as benefit under Article 14, and specificity
under Article 2.1.
102. The United States considers "misplace{d}" 210 the European Union's reliance on a statement
by the panel in Japan – DRAMs (Korea) that certain transactions could be covered by more than one
of the subparagraphs in Article 1.1(a)(1). While the Panel did acknowledge the possibility of overlap,
it did not find this to be the case with respect to purchases of "goods". As the European Communities'
argument regarding "purchase of services" necessarily implied such an overlap, it "could not stand".211
Therefore, the example of equity infusions provi ded by the European Union to illustrate that a
transaction can fall into two categories is "simply irrelevant"212 to the case of purchases of goods. The
United States disagrees in any event that tran sactions involving equity infusions qualify as both
purchases of goods and direct transfers of funds, because it does not accept the European Union's

207See Appellate Body Report, US – Anti-Dumping and Countervailing Duties (China) , para. 301;
Appellate Body Report, US – Countervailing Duty Investigation on DRAMS , para. 115; and Appellate Body
Report, US – Softwood Lumber IV, para. 64.
209Panel Report, para. 7.955.
210United States' appellee's submission, para. 163 (referring to European Union's appellant's
submission, para. 115, in turn referring to Panel Report, Japan – DRAMs (Korea), para. 7.439).
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reading of the Appellate Body's findings in US – Softwood Lumber IV to mean that "ownership rights
can be considered 'goods'".
213 Furthermore, Articles 14(a) and 14(d), which provide two "separate
and distinct" guidelines for calculating the amount of subsidy for equity capital and purchases of
goods, respectively, "demonstrate{} that the meanings of these two terms are clearly distinct in the
context of the SCM Agreement", and that an equity infusion can fall only within a single category.214
103. The United States supports the Panel's conclusion that categorizing "direct transfers of funds"
as encompassing "purchases {of} goods" would render the explicit reference in subparagraph (iii)
"redundant and inutile" 215, an outcome not permitted by the rules of treaty interpretation. The
European Union attempts to avoid the conclusion of inutility by positing that the term "purchases {of}
goods" covers transactions that would otherwise fall outside the SCM Agreement, such as where the
government promises to exercise preferential treatment in exchange for a private company's provision
of goods. 216 In the United States' view, this does not provide a basis to ascribe an independent
meaning to the term "purchases {of} goods". 217 The United States questions whether this would be a
"purchase" at all, since the European Union provid es no evidence that such transactions occur or that
the drafters wished to cover them.
104. The United States further asserts that the Europ ean Union's interpretation ignores the object
and purpose of the SCM Agreement, which "reflects a delicate balance between the Members that
sought to impose more disciplines on the use of su bsidies and those that sought to impose more
disciplines on the application of countervailing measures". 218 The United States does not agree with
the European Union's characterizations of previous Appellate Body statements regarding the object
and purpose of the SCM Agreement, because they result in "a one-sided evaluation of disciplines on
subsidies that would disregard or minimize provisions that … 'recogniz{e} … the right of Members to
impose such measures under certain conditions'."219

213United States' appellee's submission, para. 167 (quoting European Union's appellant's submission,
para. 116, in turn referring to Appellate Body Report, US – Softwood Lumber IV, paras. 46-76).
215Panel Report, para. 7.956.
216United States' appellee's submission, para. 170 (referring to European Union's appellant's
submission, para. 117).
218United States' appellee's submission, para. 173 (quoting Appellate Body Report, US – Anti-Dumping
and Countervailing Duties (China) , para. 301, in turn quoting Appellate Body Report, US – Countervailing
219United States' appellee's submission, para. 173 (quoting Appellate Body Report, US – Anti-Dumping
and Countervailing Duties (China) , para. 301; and Appellate Body Report, US – Softwood Lumber IV ,
para. 64).
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105. The United States disagrees that the Panel's an alysis creates the "loopholes" envisaged by the
European Union. Rather, the Panel was aware of the risk that Members would characterize their
transactions as "purchases of services" in order to avoid the disciplines under the SCM Agreement,
and expressed confidence that this would be detected by WTO pane ls and investigating authorities.
220
The concerns relating to circumvention do not ari se here because the focus is only on transactions
"properly characterized " as "purchases of services". 221 The United States also notes the
European Union's argument that the Panel's analysis would allow Members to avoid the
SCM Agreement by asking for a service from a goods producer "in exchange for ... a transfer of funds,
foregoing of government reve nue otherwise due, or provi sion of goods and services". 222 T h e
United States is not convinced that these "scenarios"223 present a threat of circumvention.
106. In the case of the scenario in which the gove rnment provides a service in exchange for a
"transfer of funds", the United States denies that "circumvention" would o ccur, because the resulting
transaction would either: (i) not be a financia l contribution (because it constitutes a "purchase of
services"); (ii) be some other type of financial c ontribution (such as a grant with incidental services);
or (iii) be a net transfer of funds to the government, which is not covered by the SCM Agreement.224
Regarding the scenario involving a supply of servi ces in exchange for a government's foregoing of
revenue otherwise due, the United States notes that th is could be a transaction properly characterized
as a "purchase of services", or a financial contribut ion with an "incidental service", but that such a
determination would de pend on a detailed consideration of the facts. 225 Finally, with respect to the
scenario in which a government provides goods and services in exchange for a supply of goods by a
producer, the United States refers to the Panel's findi ngs elsewhere in its Report that such transactions
constitute "provision", rather than "purchases", of services, making the Eur opean Union's concerns
about circumvention "{un}realistic".226
107. Therefore, the United States requests the Appella te Body to uphold the Panel's finding that
transactions properly characterized as "purch ases of services" are excluded from the scope of
Article 1.1(a)(1)(i) of the SCM Agreement.

emphasis)).
222European Union's appellant's submission, para. 119.
224See United States' appellee's submission, paras. 179-182.
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3. Specificity – Allocation of Patent Rights
108. The United States notes that the European Uni on does not dispute the Panel's statement that
"the allocation of patent rights is uniform under a ll ... U.S. government departments and agencies, for
all enterprises in all sectors".227 According to the United States, that should be the end of the analysis
under Article 2.1(a) of the SCM Agreement. Contrary to what the European Union argues, nothing in
the SCM Agreement supports the notion that uniform treatme nt becomes specific when individual
government agencies, such as NASA and the USDOD, accord such tr eatment pursuant to contracts
and agreements subject to agency-specific procedural rules.228
109. The United States also observes that, although th e Panel came to its decision before the
Appellate Body issued its reports in US – Anti-Dumping and Countervailing Duties (China) and
EC and certain member States – Large Civil Aircraft , the Panel's analysis "follows the lines laid out
in those reports". 229 The Panel properly considered all of the legal instruments at all government
levels and conducted a "detailed evaluation" 230, examining each instrument individually and
considering it as part of a broader "framework". 231 It further examined whether the authorities or the
legislation imposed limitations on access to the alleged subsidy, and found that they did not. Lastly,
in the United States' view, the Panel concluded—albeit without using these precise words—that
"evidence under consideration unequivocally indicates … non-specificity by reason of law"
232 under
Article 2.1(a), rendering further analysis unnecessary.
110. The United States asserts that the European Union misinterprets Article 2.1 of the
SCM Agreement in calling for an analysis based on a subset of the US legislation related to the
challenged financial contributions. The "fundamental flaw" in the European Union's approach is its
insistence that, under Article 2.1(a), "the only 'gra nting authority' for purposes of the specificity
analysis is the entity that directly conferred the alleged financial cont ribution to the alleged
recipient."233 If multiple authorities participate in the pr ocess of granting the subsidy, nothing in the
text of Article 2.1(a) prevents a panel from consid ering all of them to be collectively "the granting
authority". The United States asserts that the Europ ean Union also errs in failing to recognize that

227Panel Report, para. 7.1276.
231Panel Report, para. 7.1293.
232United States' appellee's submission, para. 126 (quoting Appellate Body Report, US – Anti-Dumping
and Countervailing Duties (China) , para. 371; and Appellate Body Report, EC and certain member States –
Large Civil Aircraft, para. 945).
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Article 2.1(a) "does not restrict th e analysis to the granting authority or the legislation", but rather
"allows a consideration of both, as appropriate".
234
111. The United States agrees with the European Un ion on the ordinary meaning of the term
"granting authority"235, but it rejects the European Union's c onclusion that "granting authority" means
only the governmental entity that executed the document conferring the financial contribution
underlying the subsidy. The European Union fa ils to address the full definition of the word
"authority", which may entail "one or more of '{t}hose in power or control' of the alleged subsidy". 236
The context provided by Article 1.1(a)(1) of the SCM Agreement—which refers to "government or
any public body"—confirms the previ ous conclusion. Article 2.1 of the SCM Agreement frames the
specificity analysis in different terms, because it refe rs to the "granting author ity". This change in
terminology "moves the focus of the analysis to th e 'authority' responsible for granting the subsidy
and away from the mechanical act of making the contribution". 237 In response to the
European Union's contention that a Member cannot be a granting authority because the
SCM Agreement uses the term "Member" in some contexts and "authority" in others, the United States
argues that the term "authority" is "conceptually br oader"—it can cover one entity or multiple entities
at a variety of levels—whereas "Member" "refers exclusively to the Member as a whole".
238
112. The United States rejects the proposition that Artic le 2.1(a) creates a binary, one-or-the-other
choice between "the granting authority" and "the le gislation pursuant to which the granting authority
operates". Instead, the United States considers th at the term "granting authority" calls for "an
examination, as appropriate, of the authority, the legislation, or both". 239 In addition, the
United States rejects the European Union's asserti on that the Panel based its conclusion regarding
non-specificity on "an overall 'policy' related to intellectual property rights in government

234United States' appellee's submission, para. 128. (original emphasis) The United States notes that the
Appellate Body has emphasized that the use of the term "principles"—instead of, for instance, "rules"—in the
chapeau of Article 2.1 "suggests that subparagraphs (a) through (c) are to be considered within an analytical
framework that recognizes and accords ap propriate weight to each principle". ( Ibid., para. 132 (quoting
Appellate Body Report, US – Anti-Dumping and Countervailing Duties (China), para. 366; and Appellate Body
Report, EC and certain member States – Large Civil Aircraft, para. 942))
235United States' appellee's submission, para. 129 (referring to European Union's appellant's
submission, para. 72).
236United States' appellee's submission, para. 129 (quoting The New Shorter Oxford English Dictionary,
4th edn, L. Brown (ed.) (Clarendon Press, 1993), Vol. 1, p. 151). (emphasis added by the United States)
The United States also notes that the Appellate Body r eached essentially the same conclusion when it found in
US – Anti-Dumping and Countervailing Duties (China) that, in considering specificity under Article 2.1(a),
"a proper factual analysis" is "based on the totality of evidence, at all levels of government " (Ibid., para. 129
(quoting Appellate Body Report, US – Anti-Dumping and Countervailing Duties (China) , para. 400) (emphasis
added by the United States))
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contracts".
240 The Panel based its conclusion on lega l requirements and nothing in its reasoning
suggests that a WTO Member could rely, as the Eur opean Union fears, on a general policy "to defeat
specificity for differential treatment among sectors".241
113. With respect to the European Union's argume nts regarding NASA, the United States notes
that, if the European Union means to suggest that "the Space Act and its implementing regulations are
the only legislation pursuant to which NASA operates, it is wrong." 242 Instead, NASA operates
pursuant to additional measures—the Patent and Trademark Law Amendments Act of 1980 243
(the "Bayh-Dole Act"), the 1983 Presidential Memorandum 244, and the 1987 Executive Order 245—and
these instruments "form part of the 'legislation' th at can indicate specificity or non-specificity for
purposes of Article 2.1(a)". 246 The European Union identifies nothing in the SCM Agreement "that
precludes consideration of the full spectrum of measures affecting an authority's grant of a
subsidy".247 The European Union erroneously focuses on the "granting authority" as opposed to the
subsidy and limitations on access to it. The Unite d States notes that the NASA contracts and waiver
instruments do not "limit access" 248 to the alleged subsidy to Boeing or the aerospace industry. Other
enterprises in other industries can have access to the same rights through contracts with other
agencies. The United States further submits that "{ t}he mere fact that the {European Communities}
addressed two agencies {did} not preclude the Pa nel from addressing the availability of identical
treatment throughout the U.S. government."249
114. With respect to the USDOD, the United States as serts that the European Union's "attempts to
paint the allocation of patent rights … as specific ar e even more invalid than its arguments regarding
NASA, because {US}DOD does not even have its own laws and regulations in this area." 250 T h e
USDOD follows the general regulations applicable to all agencies under United States Code of
Federal Regulations , Title 48, sections 27.300-27.306. 251 The USDOD's role in entering into
contracts "does not mean that it is the sole grantin g authority, or that it limits access to the alleged

240United States' appellee's submission, para. 133 (quoting European Union's appellant's submission,
para. 70).
242United States' appellee's submission, para. 137. (original emphasis)
243Codified at United States Code, Title 35, chapter 18, sections 200-212 (Patent Rights in Inventions
Made with Federal Assistance) (Panel Exhibit EC-558).
244Memorandum to the Heads of Executive Departments and Agencies: Government Patent Policy,
Public Papers 248, 18 February 1983 (Panel Exhibit EC-560).
245Executive Order 12591, Facilitati ng Access to Science and Technol ogy, 10 April 1987 (Panel
Exhibit EC-561).
246United States' appellee's submission, para. 137. (footnote omitted)
251(Patent Rights under Government Contracts) (Panel Exhibit EC-559).
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subsidy … from other agencies in other sectors".
252 Nor does it mean that "the legislation pursuant to
which the patent rights allocation occurs is {}specific".253 The USDOD is, like all agencies, "required
to allow its contractors to 'retain' title to inventions" 254, and it may only do otherwise "in exceptional
circumstances".255 The exception, however, does not change the analysis under Article 2.1(a),
because " all agencies have the same authority". 256 The European Union's arguments "provide no
support for considering specificity in isolation for each agency" 257, and hence provide no basis for the
Appellate Body to reverse the Panel's findings on specificity.
115. At the oral hearing, the United States rejected the European Union's argument that the Panel
erred in not addressing its assertions of de facto specificity under Article 2.1(c) of the
SCM Agreement. In the United States' view, there was no re levant argument for the Panel to address.
Article 2.1(c) frames the specificity analysis in terms of whether there was "the granting of
disproportionately large amounts of subsidy to certain enterprises".258 Accordingly, disproportionality
depends on the subsidy, and not on particular granting authorities. The European Union's assertions
covered only NASA and USDOD contract s, which did not provide any information with regard to the
subsidy as granted by other entities, and hence did not contain any re levant information for purposes
of the assessment of disproportionality.
4. Adverse Effects
116. The United States contends that the European Un ion's two grounds of appeal relating to the
Panel's decision not to aggregate the effects of certain groups of subsidies "lack merit". 259 T h e
European Union's "extremely broad interpretation" 260 of Articles 5 and 6.3 of the SCM Agreement,
which amounts to requiring cumulative assessment in a ll cases, is inconsistent with the text of these
provisions, as well as with the Appellate Body's previous interpretation of these provisions.
(a) Collective assessment of the aer onautics R&D subsidies and the
B&O tax rate reductions and their effects
117. The United States submits that the Panel properly assessed the effects of the aeronautics R&D
subsidies separately from those of the B&O tax rate reductions. The Panel's approach is permissible

254United States' appellee's submission, para. 144. (original emphasis)
255United States Code, Title 35, chapter 18, section 202 (Disposition of rights) (Panel Exhibit US-137).
256United States' appellee's submission, para. 144. (original emphasis)
258United States' oral statement at the first session of the oral hearing.
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under Articles 5 and 6.3 of the SCM Agreement and consistent with the Appellate Body's
interpretation of these provisions, which affirms that panels enjoy "a certain degree of discretion in
selecting an appropriate methodology" for determining adverse effects, and that the "appropriateness
of a particular method may have to be determined on a case-specific basis".
261 The United States also
points out that, although the European Union repeatedly relies upon the report of the panel in
US – Upland Cotton , that panel declined to aggregate non-price-contingent subsidies with
price-contingent subsidies because the former were "of a different nature, and thus effect".
262
118. The United States considers that, in this disput e, given the argumentation and evidence before
it concerning the fundamentally different natures of the aeronautics R&D subsidies and the B&O tax
rate reductions, the Panel selected an appropriate methodology based on "the nature, design, and
operation of the subsidies at issue, the alleged market phenomena, and the extent to which the
subsidies are provided in relation to a particular product or products". 263 The Panel structured its
adverse effects analysis in the light of the Europ ean Communities' allegations about the nature of the
various subsidies and their effects on Boeing's commercial behaviour. Before the Panel, the
European Communities drew a "categorical distinction" 264 between subsidies alleged to reduce
Boeing's marginal unit costs and all other subsidies at issue, and neve r alleged that the B&O tax rate
reductions had any "technology" or other effect on Boeing's ability to launch the 787 in 2004. The
Panel properly assessed the effects of these two groups of subsidies separately, and properly
considered that "it is clear that the two groups of subsidies operate through entirely distinct causal
mechanisms".
265
119. The United States adds that the Panel's appro ach accords with the views of the Appellate
Body in EC and certain member States – Large Civil Aircraft . In that case, the Appellate Body
identified two methodologies that seek to account for the combined effects of multiple subsidies:
(i) an "aggregate" assessment, in which the effect s of multiple subsidies ar e assessed collectively and
simultaneously; and (ii) a "complementary" assessmen t, in which the effects of one group of very
similar subsidies are analyzed fi rst and then, if that first group of subsidies has a "genuine and
substantial" causal relationship with the allege d market phenomena, discerning whether a second
group of subsidies has a "genuine causal connection" with the same market phenomena, such that the
second group "complement{s} or supplement{s}" the first. 266 The Appellate Body endorsed the

261Appellate Body Report, EC and certain member States – Large Civil Aircraft, para. 1376.
263United States' appellee's submission, para. 196 (quoting Appellate Body Report, EC and certain
member States – Large Civil Aircraft, para. 1376).
265Panel Report, para. 7.1824.
266Appellate Body Report, EC and certain member States – Large Civil Aircraft, paras. 1378 and 1379.
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panel's application of the latter methodology, while stressing the need to establish a "genuine causal
connection" for each subsidy.
267 The United States understands the Appellate Body as having
considered that both methodologies for assessing th e effects of multiple subsidies should focus on
discerning whether the various subsidies operate through the same causal mechanism to cause adverse
effects, and recognized the importance of ensuring that subsidies with little or no causal relationship
are not found to cause adverse effects simply because they are grouped together with subsidies that do
have a genuine and substantial cau sal connection with the alleged effects. In the case at hand, the
Panel aggregated all subsidies alleged to operate through the causal mechanism of enhancing Boeing's
ability to launch the 787, namely, the aeronautics R& D subsidies. Since the Panel did not find that
the aeronautics R&D subsidies have the "price effect s" of causing Boeing to reduce the sales price of
the 787, and since the B&O tax rate reductions, by their nature, design, and operation, did not, and
were not, alleged to have affected Boeing's launch of the 787, the United States submits that the Panel
properly did not include them in its analysis of the effects of the aeronautics R&D subsidies.
120. The United States argues that there is no suppor t for the "extremely broad interpretation" of
Articles 5 and 6.3 of the SCM Agreement proposed by the European Union, which amounts to an
argument that "these provisions require a cumulative assessment in all cases ".268 Such a rule is not
supported by the text of Articles 5 and 6.3 and is in consistent with the Appellate Body's interpretation
of these provisions in prior cases. The United States poi nts out that the reference in Article 5 to "any
subsidy" and the references in each of the subparagra phs of Article 6.3 to "the effect of the subsidy"
are in the singular form. This reflects the requireme nt that a "genuine and s ubstantial relationship of
cause and effect" or a "genuine causal connection" must be established between any particular subsidy
found to exist and any adverse effect found to exist 269, rather than the Eur opean Union's suggestion
that "these provisions discipline the collective impact of any and all subsidies benefiting the
subsidised product in the market at issue". 270 Although it may be true that "{t}he text of {Articles 5
and 6.3 of the SCM Agreement} does not even refer to any 'mechan ism' or manner in which subsidies
cause adverse effects"271, it is equally true that the text of these provisions does not refer to subsidies
that complement and supplement the "product eff ect" of other subsidies. Nevertheless, in EC and
certain member States – Large Civil Aircraft, the Appellate Body found that it was permissible for the

267United States' appellee's submission, para. 200 (referring to Appellate Body Report, EC and certain
member States – Large Civil Aircraft, paras. 1378 and 1379).
268United States' appellee's submission, para. 203 (referring to European Union's appellant's
submission, paras. 205 and 206). (original emphasis)
269United States' appellee's submission, para. 204 (referring to Appellate Body Report, US – Upland
Cotton, para. 438; and Appellate Body Report, EC and certain member States – Large Civil Aircraft ,
paras. 1376 and 1378).
270European Union's appellant's submission, para. 205. (original emphasis)
271European Union's appellant's submission, para. 207.
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panel to examine whether multiple subsidies complement and supplement a particular "product effect"
in its analysis of adverse effects.
272 The United States recalls, in this regard, that "Article 6.3(c)
requires the establishment of a causal link between th e subsidies and the particular market situations
being claimed under that provision" 273, but the precise methodology to be used to establish such a
causal link is not specified in the SCM Agreement.
121. The United States adds that the European Union' s proposed interpretation is at odds with the
Appellate Body's finding in EC and certain member States – Large Civil Aircraft , and would
undermine the "methodological discretion"274 that panels enjoy in their analysis of adverse effects and
overlook the case-specific nature of the determin ation as to whether a cumulative assessment is
appropriate. Such a determinati on "depend{s} on a number of factors and factual circumstances such
as the nature, design, and operation of the subsidies at issue, the alleged market phenomena, and the
extent to which the subsidies are provided in relation to a particular product or products". 275 T h e
United States underlines in this regard that, in EC and certain member States – Large Civil Aircraft ,
the Appellate Body found that the panel "was require d to find more than simply that two or more
subsidies 'support{ed} the same subsidised produc t and negatively impact{ed} competition in the
market at issue'".276 The United States understands the Appellate Body as having found that the panel
was required to establish that the non-LA/MSF subsid ies had a "genuine causal link" with the same
causal mechanism through which the LA/MSF operated (Airbus' ability to launch its LCA models) so
as to cause the alleged adverse effects in a way similar to the LA/MSF subsidies. 277 For all of these
reasons, the United States submits that the Appe llate Body should reject the European Union's
"one-size-fits-all analytical approach"278 whereby aggregation or cumulation is required in all cases.

272United States' appellee's submission, para. 207 (referring to Appellate Body Report, EC and certain
member States – Large Civil Aircraft, paras. 1378 and 1381-1409).
273United States' appellee's submission, para. 207 (quoting Appellate Body Report, EC and certain
member States – Large Civil Aircraft, para. 1231).
275United States' appellee's submission, para. 209 (quoting Appellate Body Report, EC and certain
member States – Large Civil Aircraft, para. 1376).
276United States' appellee's submission, para. 210 (quoting European Union's appellant's submission,
para. 206; and referring to Appellate Body Report, EC and certain member States – Large Civil Aircraft ,
para. 1376).
277United States' appellee's submission, para. 210. The United States quotes the following statement of
the Appellate Body in paragraph 1379 of its report in EC and certain member States – Large Civil Aircraft :
"{T}he Panel's approach to the analysis of causation did not absolve it from establishing a genuine causal link
between the different categories of non-LA/MSF subsidies and Airbus' ability to launch and bring to market its
LCA models, thereby similarly causing the displacement and significant lost sales of Boeing LCA during the
reference period". (emphasis added by the United States)
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(b) Collective assessment of the tied tax subsidies and the remaining
subsidies and their effects
122. The United States argues that the Panel did not err in declining to aggregate the remaining
subsidies and the tied tax subsidies in its analysis of adverse effects. Accordingly, the Appellate Body
should reject the European Union's request to revers e the Panel's finding that the remaining subsidies
do not cause adverse effects, as well as its further request that the Appellate Body find that, when
aggregated with the tied tax subsidies (or the aer onautics R&D subsidies), the remaining subsidies
also cause adverse effects. The United States observ es that, implicit in this request to complete the
analysis is a request that the Appellate Body find that the remaining subsidies have led Boeing to offer
particular price reductions for particular subsid ized products, yet the European Union does not
identify any factual findings or undisputed facts that would support such a finding. Nor does the
European Union's Notice of Appeal contain a request that the Appellate Body complete the analysis
with respect to this Panel finding.
123. In the view of the United States, the European Union grounds its appeal on two flawed
arguments. The first incorrectly relies on the panel reports in US – Upland Cotton and EC and certain
member States – Large Civil Aircraft , and the second incorporates by reference the flawed
interpretation of Articles 5 and 6.3 of the SCM Agreement as requiring the collective assessment of
"any and all subsidies benefiting the subsidised product in the market at issue".
279 In response to the
latter of these arguments, the United States relie s upon its response, summarized above, to the
European Union's proposed interpretation of these provisions in the context of its appeal of the Panel's
decision not to aggregate the effects of the aerona utics R&D subsidies with the effects of the B&O
subsidies in the 200-300 seat LCA market.
124. The United States observes that the European Union cites to the panel in US – Upland Cotton,
which found that an "integrated examination of effects of any subsidies" was permitted in
circumstances where subsidies had "a sufficient nexus"' with (i) "the subsidized product" and (ii) "the
particular effects-related variable under examination"280, and asserts that "{t}he Remaining Subsidies
in this dispute fulfil these requirements". 281 The United States characterizes such an assertion as
"incorrect"282 for two main reasons. First, no sufficien t nexus between the remaining subsidies and
the subsidized products has been established. B ased on the arguments of the European Communities,
the Panel identified three separate groups of subsidized products. The Panel found that the remaining

279European Union's appellant's submission, para. 205. (original emphasis)
280European Union's appellant's submission, para. 227 (quoting Panel Report, US – Upland Cotton ,
para. 7.1192).
281European Union's appellant's submission, para. 228.
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subsidies, "unlike the {tied} tax subsidies … are not directly related to Boeing's production or sale of
LCA"
283, and the European Union itself concedes that the remaining subsidies are not tied to the
production of Boeing LCA. The mere fact that the remaining subsidies were received by Boeing's
LCA division says very little about the existence of any nexus between the subsidies and any of the
three groups of subsidized products and, as the Unit ed States argued before the Panel, "the ways in
which Boeing supposedly used the alleged subsidies is critical to its causation arguments"; "{y}et
that 'evidence' is essentially non-existent". 284 Furthermore, the Panel never agreed with the
European Communities' contention that the remaini ng subsidies confer the equivalent of additional
cash flow. Second, the remaining subsidies do no t impact the same "effects-related variable"
as the tied tax subsidies—namely, price. The Panel rejected both bases underpinning the
European Communities' causation theory for the price effects of the remaining subsidies and
other non-recurring subsidies—that is, (i) the Cabral price effects model 285 and (ii) the
European Communities' arguments that Boeing would not have been economically viable without the
subsidies.286 The United States points out that the Panel did, however, correctly take into account its
findings on the nature and magnitude of the rema ining subsidies in assessing their effects and in
reaching the conclusion that the evidence was simply insufficient to support the allegation that the
remaining subsidies have an impact on the price of any subsidized product.
125. The United States further rejects the European Union's attempt to rely upon a statement by the
panel in EC and certain member States – Large Civil Aircraft as support for the proposition that
"a panel must not segregate its adve rse effects analysis so that it ca nnot take account of the combined
market effect of subsidies that collectively enha nce Boeing's cash flow and its ability to price down
LCA."287 The United States stresses that the Panel did not find that the remaining subsidies or the tied
tax subsidies "enhance Boeing's cash flow", much l ess that they do so "collectively", and that the
Panel rejected all of the European Communities' arguments that the remaining subsidies "enhance"
Boeing's "ability to price down LCA". 288 This contrasts sharply with the situation in EC and certain
member States – Large Civil Aircraft where the Appellate Body upheld that panel's findings that the
non-LA/MSF subsidies complemented and supplemente d the effects of the LA/MSF subsidies. The
circumstances of this dispute are, in fact, mo re comparable to those where the Appellate Body

283Panel Report, para. 7.1827.
284See Panel Report, footnote 3786 to para. 7.1828 (referring to United States' comments on the
European Communities' response to Panel Question 301, paras. 601 and 602).
285Panel Report, para. 7.1832. The Cabral model is explained in detail in Appendix VII.F.2 of the
Panel Report, p. 757.
286Panel Report, para. 7.1831.
287United States' appellee's submission, para. 217 (quoting European Union's appellant's submission,
para. 226).
288United States' appellee's submission, para. 218 (quoting Panel Report, paras. 7.1829-7.1832).
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reversed the EC and certain member States – Large Civil Aircraft panel because "a general finding
that they enabled Airbus to develop 'features and aspects' of its LCA on a schedule that otherwise it
would have been unable to accomplish does not prov ide a sufficient basis to determine that {research
and technological development ("R&TD")} subsidi es 'complemented and supplemented' the 'product
effect' of LA/MSF in enabling Airbus to launch particular models of LCA."
289 Similarly, here, the
European Communities' general allegation that th e remaining subsidies "constitute the functional
equivalent of additional cash flow available to Boeing's LCA division" 290—which the Panel did not
accept—could not have provided a suff icient basis to determine that those subsidies complement and
supplement the effect of the tied tax subsidies in enabling Boeing to reduce the price of each aircraft it
manufactures and sells. Thus, submits the United States, the approach taken by the Appellate Body in
EC and certain member States – Large Civil Aircraft confirms that the Panel in this case was correct
to decline to aggregate the tied tax subsidies and the remaining subsidies.
5. Article 11 of the DSU
126. The United States further contends that the Pane l acted consistently with its obligations under
Article 11 of the DSU when it found that it was unable to determine whether certain USDOD RDT&E
subsidies cause the alleged adverse effects.
127. The United States submits that the European Un ion's allegation that the Panel should have
afforded it an opportunity to respond to the Panel' s approach or to seek n ecessary information from
the United States is without merit. As an initial matter, parties are not entitled to make comments on
the panel's revisions to its interim report because, otherwise, "the interim review stage {would turn}
into a potentially indefinite cycle of comments and changes". 291 In any event, the United States
maintains that, in this case, th e European Communities had all the opportunities it needed to make its
prima facie case, since the Panel afforded the parties the opportunity to comment on the Interim
Report, and addressed such comments in the Fina l Report, in accordance with Article 15.3 of
the DSU.

289Appellate Body Report, EC and certain member States – Large Civil Aircraft, para. 1407.
290European Union's appellant's submission, para. 228.
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128. Moreover, the United States contends that the Panel's approach was not "unexpected"
292 or
"surprising"293, because the European Comm unities had "clear notice" 294 that the USDOD RDT&E
programmes funded different categories of contracti ng instruments that could be treated differently
under Article 1 of the SCM Agreement. Several of the Panel's questions to the parties show the
Panel's concern over the different legal implications of the diverg ences among the categories of legal
instruments underlying the alleged subsidies. T hus, the Panel conducted an objective assessment of
the arguments and evidence submitted by the parties and, having found that assistance instruments,
but not procurement contracts, were "specific" subs idies, the Panel correctly concluded that it could
only make adverse effects findings on those USDOD RDT&E programmes for which it had
discernible evidence of the effects of the assistan ce instruments—namely, the ManTech and DUS&T
programmes. The European Union misunderstands th e Panel's analysis in arguing that the Panel
limited its findings to two USDOD RDT&E programm es. Rather, the Panel made it clear that its
analysis of adverse effects was in respect of all the RDT&E programmes, but that the
European Communities failed to adduce arguments or evidence with respect to the effects of the
subsidies under all but two of the USDOD RDT&E programmes at issue.
129. The United States asserts that the Panel was under no obligation under Article 13 of the DSU
"to develop information on behalf of the complaining party".
295 In addition, the United States did not
fail to cooperate with the inform ation-gathering process, because it complied with the relevant
decisions and rulings by the DSB under Annex V to the SCM Agreement, and discussed at great
length throughout the Panel proceedings individual pr ocurement contracts and assistance instruments.
Furthermore, the Panel did ask numerous ques tions about the differences between the legal
instruments funded pursuant to the USDOD RDT&E pr ogrammes at issue. The European Union,
again, misunderstands the Panel's adverse effects finding when faulting the Panel for not requesting
specific contracts from the United States. As the United States sees it, the Panel did not need "more
contracts" but, rather, more evidence from the Eu ropean Communities relating to the effects of the
assistance instruments that the United States had placed on the record "years earlier".296

292European Union's appellant's submission, para. 244.
293European Union's appellant's submission, para. 247.
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C. Claims of Error by the United States – Other Appellant
1. NASA Procurement Contracts and USDOD Assistance Instruments
(a) Financial contribution – Application of the "purchase of services"
test
(i) NASA
130. The United States requests the Appellate Body to reverse the Panel's application of its
"purchase of services" test to the procurement cont racts entered into between NASA and Boeing for
aeronautics R&D and the Panel's ultimate finding that the transactions are not "purchases of services".
The United States' appeal is twofold. First, th e United States asserts that the Panel erred in the
application of its "purchase of services" test to the facts of the case. Second, the United States argues
that, in its consideration of the evidence, the Pa nel failed to make an "objective assessment of the
matter" under Article 11 of the DSU. In the event of reversal of th e Panel's finding on one or both of
these grounds, the United States does not seek completi on of the analysis given the complexity and
disputed nature of the facts on the Panel record.
131. The United States agrees with the test laid down by the Panel for identifying a transaction
involving a government's purchase of services. The United States does not dispute that, in order to
determine whether a transaction involves a purchase of services, it must be determined whether the
object of the transaction was "principally for the benefit and use"
297 of the private entity or of the
government (or unrelated third parties). Although th e United States disagrees with the Panel's use of
"an inapposite definition for the term 'service'" 298, it does not consider that the use of such a definition
affected the Panel's overall conclusion. Noneth eless, in order "to avoid future confusion" 299, the
United States requests the Appellate Body to clarify the Panel's reasoning by using a more appropriate
definition of the word "service".
132. The United States highlights that the Panel's t est "necessitates comparative analysis", since
"{r}eaching a conclusion as to whether the government has paid for services 'principally' for the use
and benefit of the recipient, as opposed to the use and benefit to the government (or unrelated third
parties) requires a comparison of how each party to the transaction could actually use or benefit from
the research."
300

297Panel Report, para. 7.978.
299United States' other appellant's submission, para. 23.
300United States' other appellant's submission, para. 23.
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133. Absent consideration of what both parties to the research transactions received, it is
impossible to reach a reasoned conclusion as to wh ether the benefit and use of the research is
principally for one side or the other. According to the United States, the Panel looked exclusively at
the benefit and use of NASA's research to Boei ng, without addressing the benefit and use to the
government or third parties unrelated to Boeing. However, this "one-sided"
301 approach failed to
follow the legal test that the Panel correctly found to be necessary and, accordingly, failed to establish
a "financial contribution" for purposes of Article 1.1(a)(1) of the SCM Agreement, the treaty text that
the Panel sought to apply.
134. According to the United States, the NASA programmes and contracts before the Panel had the
objective of expanding foundational aeronautics knowle dge for the broader scientific community in
the United States and other countries, and not only fo r Boeing. However, the Panel erred by focusing
narrowly on two of NASA's statutory objectives, while ignoring the fact that a significant portion of
NASA's aeronautics research went to objectives of "undeniable government use". 302 Second, even
though the Panel noted that almost all of the tran sactions between NASA and Boeing took the form of
procurement contracts—as opposed to assistance in struments—it nevertheless concluded that this did
not "shed very much light on the nature of the transactions". 303 Third, the Panel did not discuss the
evidence on record showing that NASA and unrelat ed third parties benefited from the aeronautics
R&D conducted by Boeing. Fourth, the Panel likewise failed to engage in a comparative analysis of
the benefit and use of the resulting intellectual prope rty rights to the parties on either side of the
transactions. Lastly, when addressing whether the tr ansactions at issue "involve the typical elements
of a purchase of services"304, the Panel erred by focusing only on whether the contracts provided for a
fee, while never addressing " other typical elements of a purchase, such as the existence of a
value-for-value exchange".305
135. The United States further asserts that the Panel's finding that the access provided to Boeing to
NASA facilities, equipment, and employees under the R&D contracts was a financial contribution
must fail along with its finding regarding the contracts themselves. The Panel provided no
explanation for this finding. The United Stat es submits, moreover, that recognizing that the NASA
R&D contracts at issue were purchases of services leads to the conclusion that any access to NASA
facilities, equipment, and employees was "incidental"306 to that purchase.

301United States' other appellant's submission, para. 13. See, more generally, paras. 16-37.
302United States' other appellant's submission, para. 25.
303Panel Report, para. 7.984.
304Panel Report, para. 7.1026.
305United States' other appellant's submission, para. 36. (original emphasis)
306United States' other appellant's submission, para. 39.
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136. In addition to alleging an error of application, the United States asserts that the Panel failed to
make an objective assessment of the matter under Ar ticle 11 of the DSU in its evaluation of the
"benefit and use" of the research under the contracts at issue. The United States claims that the Panel
erred, first, by failing to consider evidence rega rding NASA's objectives in its assessment of the
"benefit and use" to Boeing and the government and unrelated third parties
307; and, second, by failing
to consider other objective evidence of the usef ulness of the aeronautics R&D programmes to the
government and unrelated third parties.308
137. The United States recalls the Panel's emphasis on two of the nine Space Act's stated
objectives, namely, the "preservation of the role of the United States as a leader in aeronautical and
space science and technology" and the "preservati on of the United States preeminent position in
aeronautics and space through research and tec hnology development related to associated
manufacturing processes".
309 The United States observes, however, that there are other objectives of
the Space Act to which the Panel did not give ade quate consideration—such as "{t}he expansion of
human knowledge of the Earth and of phenomena in the atmosphere and space" 310—which are critical
to understanding the use and benefit for the governme nt and the broader community. In the view of
the United States, the Panel gave "inadequate cons ideration" to the objective "{t}he improvement of
the usefulness, performance, speed, safety, and efficiency of aeronautical and space vehicles". 311 The
United States explains that NASA's activities in this area—including research undertaken by
Boeing—are for the use and benefit of the government , because they improve air travel safety, make
air traffic management more efficient, and discove r ways to reduce the environmental impact of air
travel. As several official statements demons trate, "NASA did not see these advances as specific to
Boeing".312
138. Moreover, the United States contends, "{t}he ev idence is not limited to official expressions"
of NASA's objectives, but rather there is also ev idence of the "usefulness of NASA research to the
broader scientific community in the United States and across the world". 313 The United States notes
that NASA scientists present their aeronautics re search at conferences open to the worldwide
aerospace community—including Airbus employees— and also publish in scholarly journals. In

307See United States' other appellant's submission, paras. 45-58.
308See United States' other appellant's submission, paras. 59 and 60.
309United States' other appellant's s ubmission, para. 45 (quoting Space Ac t, sections 102(d)(5) and (9)
respectively). See also Panel Report, para. 7.982.
310United States' other appellant's submission, para. 45 (quoting Space Act, section 102(d)(1)).
311United States' other appellant's submission, para. 46 (quoting Space Act, section 102(d)(2)).
312United States' other appellant's submission, para. 48 (referring to, inter alia , statements by NASA
Administrator Dan Goldin, in testimony to Congress at the 24 April 2001 Senate Hearing on Science,
Technology and Space of the Committee on Commer ce, Science and Transpor tation, FDCH Political
Transcripts (Panel Exhibit EC-292)).
313United States' other appellant's submission, para. 59.
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addition, NASA requires contractors to submit periodic reports on the progress of their work, which
are also publicly available. This evidence s hows how private entities' work under NASA research
contracts advances the Space Act's objective of "{t}h e expansion of human knowledge of the Earth
and of phenomena in the atmosphere and space".
314
139. The United States submits that, by omitting essen tially all of this evidence, and discussing
only evidence supporting the European Commun ities' allegation that NASA aeronautics R&D
programmes existed to serve Boeing, the Panel fail ed to make an objective assessment of the facts
under Article 11 of the DSU. The United States therefore requests the Appellate Body to reverse the
Panel's conclusion that NASA's R&D contracts with Boeing constitute a "direct transfer of funds"
under Article 1.1(a)(1)(i) of the SCM Agreement.
140. At the oral hearing, the United States emphasized that the Panel's test for determining whether
a measure could be properly characterized as a "p urchase of services" is not an issue before the
Appellate Body, since neither of the participants has challenged the Panel's test on appeal. In the
United States' view, because the participants have accepted the appropriateness of the "principally for
the benefit and use test" applied by the Panel, the Appellate Body has not had the benefit of a
vigorous presentation of differing points of view and arguments for and against the test.
141. Also at the oral hearing, the United States emphasized that it is not requesting the Appellate
Body to make a finding as to the consistency of the "principally for the benefit and use test" with the
SCM Agreement. However, in the event the Appellate Body were to reverse the Panel's "principally
for the benefit and use" test, the United States noted that the Panel's finding that the NASA
procurement contracts with Boeing are financial co ntributions would necessarily fail, as this finding
would then have been based on an invalid test. The United States added that, since many of the
Panel's findings were based on that test, it is di fficult to envisage how the Appellate Body could
complete the Panel's analysis based on those same findings while using a different legal test.
(ii) USDOD
142. The United States requests the Appellate Body to reverse the Panel's findings that the
assistance instruments between the USDOD and Boeing for aeronautics R&D are not properly
characterized as "purchases of services" and its consequential finding that the payments and access to
USDOD facilities provided to Boeing thereunder cons titute "financial contributions" within the
meaning of Article 1.1(a)(1) of the SCM Agreement.

314United States' other appellant's submission, para. 60 (quoting Space Act, section 102(d)(1)).
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143. First, the United States asserts that the Panel's fa ilure to consider the descriptions of the work
performed under the assistan ce instruments constituted a significant error, given that the Panel itself
stated that the nature of the work Boeing was re quired to perform was "central to understanding the
core term of the transaction".
315 The United States submits that, although the Panel found some
"benefit and use" to the government from its an alysis of the cursory descriptions of the RDT&E
programme element numbers, it would have found a "significant benefit and use to the government"316
had it reviewed the statements of work. The Unite d States recalls that the parties provided the Panel
with the work descriptions and summaries of five cooperative agreements, six technology investment
agreements ("TIAs"), and two other transaction agreements ("OTAs").317
144. The United States argues that these descriptions of the work to be performed, and in most
cases "even the titles alone" 318, illustrate that the research has m ilitary applications that clearly
constitute a significant benefit and use to the governme nt. In this regard, the United States points to
the statement of work of some TIAs, and notes, fo r instance, that structural health monitoring is
important for spotting structural damage befo re it impairs performance, which is an obvious
advantage for operators of military aircraft. Like wise, tanks used in missiles and improved materials
for turbine engines are similarly useful to th e military, whereas precision image registration has
military and intelligence applications. 319 The United States asserts that, when assessing whether the
research was principally for the benefit and use of the government or the contractor, the Panel erred in
not considering the "most compelling evidence", that is, the cooperative agreements, TIAs, and
OTAs, which contain "the most precise and, therefore, most significant indication of the nature of the
research".320
145. In addition, the United States claims that the Panel failed to take account of the limiting effect
of the International Traffic in Arms Regulations (the "ITAR") on Boeing's ability to benefit from and
use the results of the USDOD R&D. While the Panel acknowledged that the ITAR restrict Boeing's
use of certain USDOD R&D-created technology on LCA and that Boeing "complies with ITAR in
general and took steps to ensure that the 787 will be 'ITAR free'"321, the Panel rejected the proposition
that the ITAR make it "effectively impossible" 322 for Boeing to use the R&D results. The
United States argues that the Panel failed to pr ogress beyond mere observations and actually consider

315Panel Report, para. 7.1137. (original emphasis)
316United States' other appellant's submission, para. 84.
317See United States' other appellant's submission, paras. 86-88.
318United States' other appellant's submission, paras. 86 and 87.
319See United States' other appellant's submission, para. 87.
320United States' other appellant's submission, para. 89.
321Panel Report, para. 7.1160.
322Panel Report, para. 7.1160 (referring to Statement of Michael Bair (Panel Exhibit US-7)).
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the effect of ITAR restrictions. Had it done so, the Panel would have realized that ITAR-controlled
LCA are "commercially useless for Boeing"
323 for the following reasons: restrictions on each LCA
component are actively enforced; exceptions to the re strictions are rare; the ITAR limit the countries
that an ITAR-controlled LCA may fly to; and each component that is exported requires detailed
review by the US State Department before an export licence is granted. Furthermore, the
United States refers to arguments that it made be fore the Panel that show that Boeing maintains
"a rigorous and comprehensive set of internal procedures" 324 to ensure ITAR components are not
included in its products, including the Boeing 787. Mo reover, the level of benefit and use to Boeing
from the USDOD R&D assistance instruments is d ecreased when these ITAR restrictions are
considered along with other findings of the Pa nel—namely, that the US DOD R&D was aimed at
designing advanced defence systems or reducing thei r costs; most agreements involved 50-50 cost
sharing—and the European Communities' conces sion that 44% of payments under the 23 USDOD
RDT&E programmes 325, without even considering ITAR rest rictions, were directed at military
objectives. The United States argues that the Panel's failure to apply its findings regarding the ITAR
to its weighing of the civil and military utility of the USDOD research meant that it did not conduct
the comparison needed for its "principally for the benefit and use" test.
146. The Panel's second error, in the United States' vi ew, relates to the Panel's application of the
"principally for the benefit and use" test to the fi ve categories of evidence that the Panel said it would
consider.326 As regards the first two categories—the Panel's analysis of the relevant US legislation
and the types of instruments entered into be tween the USDOD and Boeing—the United States
contends that the formal regulatory categorization of the assistance instruments does not support a
legal conclusion that the research at issue was prin cipally for the use and benefit of Boeing, because,

323United States' other appellant's submission, para. 95.
324United States' other appellant's submission, para. 95.
325United States' other appellant's submission, para. 98 (referring to Panel Exhibit EC-25, table at p. 20,
containing data on USDOD RDT&E). The Panel noted that the European Communi ties challenged funding
under 13 "general aircraft" programmes—Defense Resear ch Sciences; Materials; Aerospace Flight Dynamics
and Aerospace Vehicle Technologies; Aerospace Propulsion; Aerospace Sens ors; Dual Use Applications and
Dual Use Science & Technology; Advanced Materials for Weapon Systems; Flight Vehicle Technology;
Aerospace Structures and Aerospace Technology Dev/Demo ; Aerospace Propulsion and Power Technology;
Flight Vehicle Technology Integration; RDT&E for Aging Aircraft; and Manufacturing Technology/Industrial
Preparedness—and under 10 "military aircraft" programmes—C-17; CV-22; Joint Strike Fighter; AV-8B
Aircraft; Comanche; F-22; B-2 Advanced Technology Bomber; V-22; A-6 Squadrons; and F/A-18
Squadrons. (See Panel Report, paras. 7.1114-7.1117; and European Communities' first written submission to
the Panel, paras. 676 and 677)
326The five categories of evidence considered by the Panel were: (i) the US legislation authorizing the
programmes at issue; (ii) the types of instruments en tered into between the USDOD and Boeing; (iii) whether
the USDOD had any "demonstrable use" for the R&D performed under the programmes; (iv) the allocation of
intellectual property rights under the transactions; and (v) whether the transactions at issue had "the typical
elements of a 'purchase of services'". (United States' other appellant's submission, para. 100; Panel Report,
para. 7.1138)
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while cooperative agreements, TIAs, and OTAs may a ll fall in the category of "assistance", this does
not mean that they require Boeing to perform research that is principally for the benefit and use of the
company.
327 As for the Panel's evaluation of the "demonstrable use" 328 of the R&D performed under
the programmes to the USDOD, the United States ass erts that the Panel's own findings support the
conclusion that the USDOD was the principal bene ficiary or user of the research performed by
Boeing. With respect to the allocation of intellectual property rights, the United States argues that this
did not involve the government paying a private party and getting nothing in return; rather, the
assignment of data rights is part of what the priv ate party gets in exchange for contributing to a
research project of interest to both parties. Although the Panel seemed to have reached the same
conclusion, the United States fails to see how the Pane l took this into account in its overall analysis of
the assistance instruments. Lastly, in its analysis of the "typical elements" of a purchase of services,
the Panel took "too narrow a view", considering on ly the profit to the seller and failing to address
other typical elements, such as the exchange of value for value.
329
147. In sum, the United States argues that the Pane l did not explain "how it weighed the five
factors it considered against each other".330 Moreover, the Panel's analysis of two of the factors that it
did consider—namely, the "demonstrable use" for the R&D and the allocation of intellectual property
rights—actually demonstrates that the R&D was for the benefit and use of the government. 331 The
United States does not consider that the Panel's cons ideration of the other three factors supports its
conclusion that the assistance instruments were not purchases of services, and therefore requests the
Appellate Body to reverse the Panel's conclusi on under Article 1.1(a)(1)(i) and (iii) of the
SCM Agreement.
148. As it did with respect to the NASA procurement contracts, the United States emphasized at
the oral hearing that neither party has appealed the Panel's "principally for the benefit and use" test
and, consequently, that such test is outside the sc ope of appellate review. Nevertheless, in the event
the Appellate Body were to reverse the Panel's te st, the United States noted that the Panel's finding
that the USDOD assistance instruments are financial contributions would necessarily fail, as it would
then have been based on an invalid test and it woul d be difficult for the Appellate Body to complete
the analysis based on the same finding while using a different legal test.

327United States' other appellant's submission, paras. 102 and 106.
328United States' other appellant's submission, para. 107.
329United States' other appellant's submission, para. 109.
330United States' other appellant's submission, para. 115.
331See United States' other appellant's submission, paras. 101, 107, and 115.
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(b) Benefit
(i) NASA
149. The United States appeals the Panel's finding th at the financial contributions provided to
Boeing under the NASA aeronautics R&D procurement contracts "confer a benefit" within the
meaning of Article 1.1(b) of the SCM Agreement. The United States submits that the Panel's finding
that research under the NASA R&D contracts is "pri ncipally for the benefit and use of Boeing" was
the sole basis for the finding of benefit.
332 In the United States' view, since the Panel's conclusion that
the research was principally for the benefit and use of Boeing is erroneous, the finding of existence of
a benefit is equally erroneous.
150. The United States recalls that the Panel reached its conclusion under Article 1.1(b) in three
steps. First, the Panel noted that the "core 'ter m' upon which the financial contributions are provided"
is "that Boeing use the payments and access to facilities, equipment and employees that it receives
from NASA for the purpose of conducting aeronautics R&D work that is principally for Boeing's own
benefit and use".
333 Second, the Panel stated that the "relevant market benchmark would be the terms
of a commercial transaction in which one en tity pays another entity to conduct R&D". 334 Third, the
Panel concluded that "no commercial entity, i.e. no private entity acting pursuant to commercial
considerations, would provide payments (and access to its fac ilities and personnel) to another
commercial entity on the condition that the other entity perform R&D activities principally for the
benefit and use of that other entity".335
151. The United States alleges that the third conclusion—namely, that no private entity would
provide payments and other s upport under those terms—has no support, other than the Panel's
erroneous finding that the research was principally for the benefit and use of Boeing, and therefore
cannot establish the existence of a benefit for purpo ses of Article 1.1(b). In the light of this, the
United States requests the Appellate Body to reverse the Panel's finding that the financial
contributions found by the Panel conferred a benefit on Boeing.
152. In addition, the United States submits that th e Panel erred under Article 1.1(b) when it
estimated the value of any benefit conferre d on Boeing under the NASA R&D contracts and
agreements. The Panel erred because it based its valuation of the total benefit conferred by NASA

332United States' other appellant's submission, para. 64.
333Panel Report, para. 7.1038.
334Panel Report, para. 7.1039 (referring to Europ ean Communities' response to Panel Question 21,
335Panel Report, para. 7.1039.
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"on a combination of transactions covering not only 'LCA-related research' challenged by the
{European Communities}, but also other transacti ons that the {European Communities} did not
challenge".
336
153. The United States recalls that the Europ ean Communities explicitly excluded from its
challenge any research conducted by Boeing for NASA on space, aircraft engines, hypersonic flight,
air traffic management, and other topics unrelated to Boeing's development and production of LCA.337
The United States further recalls that, when NASA set out to determine the value of the research
contracts covered by the European Communities' claims, "it first segrega ted all expenditures under
contracts between Boeing and the four NASA aeronautics research centers, which came to
$1.05 billion" and then "exc luded $280 million in expenditures for research that the
{European Communities} had not challenged, resulti ng in a total value of $775 million between 1989
and 2006".338 However, when calculating the value of the NASA research contracts, the Panel
"stopped with the $1.05 billion figure" and erred by failing to deduct NASA's payments to Boeing for
research unrelated to the European Communities' claims, "or even address the evidence that the
$1.05 billion included such research". 339 The United States characterizes this omission as an "error"
inconsistent with Article 1.1(b) of the SCM Agreement because "it treats transactions that were not
part of the financial contribution under Article 1.1(a) as conferring a benefit".340
154. The United States relies on the Appellate Body's reasoning in Canada – Aircraft341 as support
for its assertion that a benefit for purposes of Artic le 1.1(b) can be conferred only by a financial
contribution identified under Article 1.1(a). Thus, th e evaluation of the benefit "is limited to what the
government conferred through the financial cont ribution", and "government actions that are not part
of the relevant financial contribution are not part of the benefit".342
155. The United States adds that the Panel estim ated the value of the access to facilities,
equipment, and employees provided by NASA to Boeing based on the ratio of the payments under the
challenged R&D contracts to total NASA payments to all contractors. Consequently, the

336United States' other appellant's submission, para. 66.
337United States' other appellant's submission, para. 66 (referring to Panel Exhibit EC-25, containing a
compilation of charts setting out NASA/USDOD/USDOC aeronautics R& D subsidies to Boeing's LCA
division; and CRA International, "Response to U.S. Assertions in DS353 Regarding Benefits of DoD RDT&E
for Boeing's Large Civil Aircraft Division", CRA Project No. D08745-00 (November 2007) (Panel Exhibit
EC-1176)).
338United States' other appellant's submission, para. 66 (referring to United States' response to Panel
Question 188, para. 223).
339United States' other appellant's submission, para. 66.
340United States' other appellant's submission, para. 66.
341United States' other appellant's submission, para. 67 (referring to Appellate Body Report, Canada –
Aircraft, para. 157).
342United States' other appellant's submission, para. 67. (original emphasis)
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United States submits that any error in calculati ng the total value of the payments under contracts
would affect the estimated value of access to facilities, equipment, and employees.
156. Therefore, if the Appellate Body were to uphold the Panel's financial contribution finding, the
United States requests the Appellate Body to modi fy the Panel's finding concerning the value of the
benefit to Boeing resulting from the NASA aer onautics R&D programmes by deducting payments
that are not part of the financial contribution challenged by the European Communities, and adjusting,
accordingly, the associated valu e of the access to NASA facilities, equipment, and employees
provided to Boeing.
157. At the oral hearing, the United States reject ed the European Union's argument that the
United States' appeal "lacks legal foundation"
343 because its Notice of Other Appeal did not explicitly
reference the value of the benefit as an issue on app eal. In the United States' view, the amount of the
benefit derives from the same process for identi fying the existence of the benefit, and the
United States clearly referenced the issue of whethe r the financial contributions in question conferred
a benefit in its Notice of Other Appeal. The Unite d States also disagreed with the European Union's
contention that Article 1.1(b) of the SCM Agreement covers only the existence of a benefit, and not its
value. The United States asserted that the fact that the Appellate Body has found that a precise
quantification of the amount of a subsidy is not re quired in proceedings under Articles 5 and 6 of the
SCM Agreement does not mean that valuation is entirely outside the analysis of Article 1.1(b).
Furthermore, the United States argued that, even t hough the European Union contends that the Panel
"found no adequate basis" 344 to reduce the amount of the subsid y from $1.05 billion to $775 million,
the fact is that the Panel made no finding on that point. The United States contended that the four
reasons alleged by the European Union in support of the Panel's approach are either not mentioned by
the Panel, irrelevant, or both. For example, the Panel never found that the United States had
conducted a " subjective"
345 review to derive the $775 million figure. Lastly, the United States
rejected the European Union's assertion that the Panel understood the $1.05 billion figure to be an
"estimate", and that the benefit could be more than $1.05 billion in the light of the Panel's finding in
its adverse effects analysis that this type of s ubsidy "is intended to multiply the benefit from a given
expenditure".346 The United States argued that the Panel's statement about "multiply{ing} the benefit"
in the adverse effects context does not, and should no t, affect the valuation of the benefit for purposes
of Article 1.1(b) of the SCM Agreement.

343European Union's appellee's submission, p. 42, subheading II.A.4.f.ii.1.
344European Union's appellee's submission, para. 106.
345European Union's appellee's submission, para. 106. (original emphasis)
346Panel Report, para. 7.1760.
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(ii) USDOD
158. The United States challenges the Panel's finding that the financial contributions provided to
Boeing under the USDOD assistance instruments confer a benefit within the meaning of Article 1.1(b)
of the SCM Agreement. The United States submits that such a finding is in error because the Panel
failed to consider the payments and other c ontributions that Boeing makes under the assistance
instruments.
159. In the United States' view, the Panel "based its analysis of the benefit on a transaction that
never occurred"
347, that is, that the USDOD provided paym ents and access to its facilities on the
condition that Boeing perform R&D activities principally for the benefit of Boeing without some form
of royalties or repayment. The United States not es that the assistance inst ruments submitted to the
Panel generally require a contribution from Boeing, a nd it also recalls that the Panel itself found that
"under assistance instruments, the 'recipient' is required to contribute its own funds to the R&D on a
cost-shared basis". 348 Accordingly, "the exchange on whic h the Panel based its finding of benefit
—payment for research for the benefit and use of Boeing without some form of royalty or
repayment—is not what the R&D {assistance instruments did}".
349
160. The United States recalls that, in Canada – Aircraft, the Appellate Body emphasized that the
comparison between the government's financial co ntribution and the market should focus on the
"terms" offered by the government. 350 In this respect, the United States contends that, "if the
appreciation of the terms of the financial contribution is inco rrect, the comparison with the market
will also be incorrect, and any conclusion as to the existence of a benefit will be invalid". 351 In this
case, the Panel failed to address all of the relevant te rms of the assistance instruments, and it did not
consider that the terms it did address "required Boeing to perform research of benefit and use to
{US}DOD and to contribute company resources to the R&D project".352
161. The United States points out that, in making its analysis of benefit, the Panel first described
what it characterized as the "core 'term'" of the USDOD assistance instruments, namely, "that Boeing
use the payments and access to facilities it recei ved from {US}DOD for the purpose of conducting
aeronautics R&D work that is principally for Boeing's own benefit and use". 353 The Panel also noted

347United States' other appellant's submission, para. 116 (referring to Panel Report, para. 7.1184).
348Panel Report, para. 7.1149.
349United States' other appellant's submission, para. 116.
350United States' other appellant's submission, para. 117 (referring to Appellate Body Report, Canada –
Aircraft, para. 157).
351United States' other appellant's submission, para. 117. (emphasis added)
352United States' other appellant's submission, para. 118.
353Panel Report, para. 7.1183.
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that both parties agreed that the proper benchmark fo r the comparison with the market is "the terms of
a commercial transaction in which one en tity pays another to conduct R&D".
354 The United States
acknowledges that, if a panel finds that a financia l contribution is "economically irrational", it may
conclude that such a transaction confers a bene fit, even "absent evid ence to the contrary". 355
However, the United States contests the Panel's find ings in this case because "the transaction the
Panel found to be economically irrational … is not the financial transaction that actually occurred". 356
In addition to the government payments to Boei ng, Boeing contributed with its own resources to
research that was of interest to the government.
162. The United States asserts that, "when framed pr operly, the question posed by the Panel does
not allow a conclusion in the abstract as to wh ether the transaction is economically rational". 357
Instead, the answer should depend on the "aggregate te rms of the transactions" and more specifically
on "whether the actual exchange made by the pa rties was one that would have occurred on the
market".358 The United States considers that this was the case with the USDOD assistance
instruments.
163. Therefore, the United States requests the Appellate Body to reverse the Panel's finding that
the financial contribution it found to exist confer s a benefit on Boeing for purposes of Article 1.1(b)
of the SCM Agreement. The United States, however, does not request the Appellate Body to complete
the analysis on this point because the Panel record lacks sufficient factual evidence in this respect.
164. The United States also requests reversal of the Panel's statement, in paragraph 7.1205 of the
Panel Report, that it "{did} not consider it credible that less than 1 per cent of the $45 billion in
aeronautics R&D funding that {US}DOD provided to Boeing over the period 1991-2005 had any
potential relevance to LCA". The United States asserts that this statement la cks an evidentiary basis
and that, in making it, the Panel failed to make an objective assessment of the matter under Article 11
of the DSU. The United States further contends that the challenged statement is inconsistent with the
Panel's own finding that "any attempt by the Panel to go further and arrive at {its} own estimate of the
amount of the subsidy to Boeing's LCA division would be speculative". 359 Moreover, it is difficult to
reconcile with the fact that the Panel recognized di fferences as to the exact scope of the term "dual

354Panel Report, para. 7.1184 (quoting European Communities' response to Panel Question 21,
355United States' other appellant's submission, para. 121.
356United States' other appellant's submission, para. 121.
357United States' other appellant's submission, para. 122.
358United States' other appellant's submission, para. 122.
359Panel Report, para. 7.1209.
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use" and emphasized that it was "not taking a position on this definitional issue".
360 In the light of
this, the United States asserts that any finding as to the value of USDOD funding for R&D of
potential relevance to LCA "clearly lacks an evidentiary basis". 361 Accordingly, the United States
submits, the Appellate Body should "find this comme nt to be inconsistent with Article 11 of the
DSU"362 and reverse the Panel's finding in that regard.
2. Washington State B&O Tax Rate Reduction
(a) Financial contribution – Revenue foregone
165. The United States claims that the Panel erred in both the interpretation and application of the
legal standard to be applied under Article 1.1(a)(1)(ii) of the SCM Agreement to determine when there
is a financial contribution because government re venue that is otherwise due is foregone.
Accordingly, the United States requests the Appellate Body to reverse the Panel's finding that the
Washington State B&O tax rate reduction for manuf acturers of commercial airplanes or components,
enacted as part of House Bill 2294, constitutes a fi nancial contribution under Ar ticle 1.1(a)(1)(ii) of
the SCM Agreement.
(i) Interpretation of Article 1.1(a)(1)(ii) of the SCM Agreement
166. With regard to the interpretation of Article 1. 1(a)(1)(ii), the United States submits that the
Panel "departed from the standard set forth in th e text of the SCM Agreem ent and engaged in an
overly simplistic analysis that failed to take into account the complexity of the Washington {State}
B&O tax system".363 The United States adds that, despite the fact that the Panel referenced passages
from prior Appellate Body reports in US – FSC and US – FSC (Article 21.5 – EC) , including those
"warnings about the risks inherent in a simple 'but for' test" 364, the Panel incorrectly paraphrased and
interpreted the Appellate Body's guidance.365

360Panel Report, footnote 2796 to para. 7.1205.
361United States' other appellant's submission, para. 125.
362United States' other appellant's submission, para. 125.
363United States' other appellant's submission, para. 130.
364United States' other appellant's submission, para. 130 (referring to Panel Report, paras. 7.116 and
7.117; Appellate Body Report, US – FSC, para. 90; and Appellate Body Report, US – FSC (Article 21.5 – EC),
para. 91).
365United States' other appellant's submission, para. 138 (referring to Panel Report, para. 7.120, in turn
referring to Appellate Body Report, US – FSC (Article 21.5 – EC), paras. 91 and 98).
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167. The United States argues that, contrary to the Panel's understanding, the requirement to
compare the challenged tax measure with the treatment applied to comparable income for taxpayers in
comparable circumstances is not limited to "other situations"
366 where a "but for" test cannot be
applied. In US – FSC (Article 21.5 – EC) , the Appellate Body rejected the proposition that the "but
for" test, or the "general rule" and "excepti on" analysis, reflects the correct standard under
Article 1.1(a)(1)(ii). The United States understa nds the Appellate Body to have explained,
"{i}nstead", that "the challenged taxation measure should always be compared to the treatment
applied to comparable income, for taxpayers in comparable circumstances in the jurisdiction in
issue".367 As the United States sees it, this standard is "t o be applied in all cases, and a 'but for' test is
simply one methodology that may be useful for applying that standard in certain, limited
situations".
368
168. The United States considers that, while it may be possible in some situations to apply a
"but for" test to perform the comparison required by Article 1.1(a)(1)(ii), the Appellate Body noted
that "usually"369 it will be difficult to do so. According to the United States, the general rule requires
a comparison with the tax treatment of legitim ately comparable income. The Panel, however,
"erroneously elevated the 'but for' test to the stat us of {a} general rule and treated the comparison of
legitimately comparable income as an exception to that rule, only to be ap plied if no 'but for' situation
can be established".370
(ii) Application of Article 1.1(a)(1)(ii) of the SCM Agreement
169. With regard to the application of Article 1.1(a)(1)(ii), the United States challenges two
aspects of the Panel's analysis. The United States subm its that the Panel erred, first, by identifying as
the normative benchmark, not the Washington State B& O tax system as a whole, but a subset of that
tax system, namely, the tax rates applied to manufacturing, wholesaling, and retailing activities.
According to the United States, the Appellate Bo dy has clarified that the "prevailing domestic
standard"
371 reflected in a Member's tax laws provides the reference point for determining whether
"revenue … foregone" is "otherwise due", and for id entifying the fiscal treatment of the relevant
income for taxpayers in comparable situations. 372 The tax rates for manufacturing, wholesaling, and

366Panel Report, para. 7.120.
367United States' other appellant's submission, para. 141 (referring to Appellate Body Report, US – FSC
(Article 21.5 – EC), para. 91).
368United States' other appellant's submission, para. 139.
369Appellate Body Report, US – FSC (Article 21.5 – EC), para. 91.
370United States' other appellant's submission, para. 142.
372United States' other appellant's submission, para. 152 (referring to Appellate Body Report, US – FSC
(Article 21.5 – EC), para. 91).
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retailing activities do not, on their own, reflect the prevailing domestic standard. Rather, the
Washington State B&O tax system "is a multi-rate tax system that applies numerous tax rates to
numerous individually identified categories of act ivities, and the tax rate applied to aerospace
manufacturing and selling is within the range of tax rates applied to other activities".
373
170. The United States observes that the Appellate Body has explained that "there must be a
rational basis for comparing the fiscal treatment of the income subject to the contested measure and
the fiscal treatment of certain other income". 374 The Appellate Body has also stressed that "it is
important to ensure that the examination under Article 1.1(a)(1)(ii) involves a comparison of the fiscal
treatment of the relevant income for taxpayers in comparable situations". 375 The United States asserts
that there is no rational basis for the Panel to ha ve disregarded the fiscal treatment of the other
activities that are also individually identified in th e Washington State tax code. The Panel erred in
relying on the language used in House Bill 2294 an d other documents produced by Washington State,
because the terms used in those documents "do not identify whether income generated by some
activities is 'legitimately co mparable' to income generated by othe rs, or whether one rate 'foregoes'
revenue that would otherwise be due". 376 Such language is thus irrelevant to a proper analysis under
Article 1.1(a)(1)(ii), and does not justify the Panel's failure to take into account the fiscal treatment of
other relevant income for taxpayers in comparable situations.
171. The United States submits that, instead of heeding the Appellate Body's instruction to conduct
a substantive analysis of the normative benchmark, "the Panel tried to create simplicity by reducing
the analysis to two classes of income––aerospace manufacturing and manufacturing not covered by a
sector-specific rate––without regard to any other classes of income". 377 The United States contends
that such isolated consideration of a few lines from the Washington State tax code is contrary to the
Appellate Body's instruction to consider the tax rules applied through the contested measure with the
fiscal treatment of other relevant income for taxpayers in comparable situations.
172. The United States asserts that the European Communities did not explain why income from
certain categories of business activity in Washingt on State becomes not "legitimately comparable"
simply because the Washington State B&O tax system imposes multiple tax rates on different
categories of business activity. The Panel likewise failed to explain or even address why business
activities other than those in the categories of "m anufacturing", "wholesaling", and "retailing" are not
"legitimately comparable" to aircraft manufacturing a nd selling. The Panel's failure to consider this

373United States' other appellant's submission, para. 153.
374Appellate Body Report, US – FSC (Article 21.5 – EC), para. 90.
375Appellate Body Report, US – FSC (Article 21.5 – EC), para. 92.
376United States' other appellant's submission, para. 155.
377United States' other appellant's submission, para. 156.
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legal question was a result of its narrow focus on applying an oversimplified "but for" test.
378 Even
assuming, arguendo, that all business activities subject to the Washington State B&O tax are not
"legitimately comparable", the Panel's implicit finding—that "manufacturing", "wholesaling", and
"retailing" are the exclusive categories of business activity that are "legitimately comparable" to
aircraft manufacturing and selling—is legally insuffici ent. This is because the Panel failed to take
into account, for example, other separately iden tified categories of business activity, such as
manufacturing of semiconductor materials and manufact uring and selling of nuclear fuel processors.
Indeed, the Panel never addressed why the other categories of business activity separately identified in
the Washington State tax code, including a variety of other manufacturing and selling activities,
would or would not be "legitimately comparable" to aircraft manufacturing and selling. This failure
by the Panel to identify properly "legitimately comparable" income for the purpose of making the
comparison required under Article 1.1(a)(1)(ii) is fatal to the Panel's financial contribution finding.
379
173. The second error committed by the Panel in the appl ication of Article 1.1(a)(1)(ii) was that it
failed to examine properly the fiscal treatment of other taxpayers in comparable situations. The
United States explains that evidence relating to th e effective tax rate is highly relevant to an
understanding of the "fiscal treatment" of income from business activities under the Washington State
B&O tax system. 380 The United States explains that, taking into account the pyramiding inherent in
the Washington State B&O tax system, the B&O tax ra te reduction lowered the effective tax rate for
aerospace manufacturing from 2.53% to 1.578%, wh ich exceeds the average effective tax rate for
other Washington businesses of 1.53%. Th e reduced B&O tax rate, therefore, "is not a favorable
rate"381 for aerospace manufacturing. Rather, it makes the effective tax rate for this sector " less
unequal when compared to the effective tax rate ap plied to other business activities in the State". 382
For these reasons, the United States considers that the tax rate applied to aerospace manufacturing and
selling cannot be considered revenue foregone that is otherwise due under Article 1.1(a)(1)(ii) of the
SCM Agreement.
174. The United States notes that the Panel's rejecti on of its arguments regarding the effective
B&O tax rate in Washington State appears to be founded on the United States' acknowledgment that
such a rate "is not a normative benchmark by whic h to contrast the fiscal treatment afforded to

378United States' additional memorandum following the first session of the oral hearing, para. 51.
379United States' additional memorandum following the first session of the oral hearing, para. 52.
380See United States' other appellant submission, paras. 157-161; United States' oral statement at the
first session of the oral hearing; and United States' additional memorandum following the first session of the
oral hearing, para. 54.
381United States' other appellant's submission, para. 157. (original emphasis)
382United States' other appellant's submission, para. 157. (original emphasis)
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legitimately comparable income".
383 For the United States, the Panel's conclusion is a non sequitur
because it does not render evidence of the effective tax ra te irrelevant to the Panel's analysis. Instead,
"evidence of the average effective rate of taxa tion is highly relevant––both factually and legally––to
the determination of whether a financial contribution was provided as a result of lowering the nominal
tax rate for aerospace manufacturing and selling". 384 The United States considers that the Panel's
failure to take this evidence into account in its analysis undermines its finding that the tax rate applied
to aerospace manufacturing and selling constitutes a financial contribution.
(b) Specificity – Article 2.1(a) of the SCM Agreement
175. The United States submits that the Panel erred in the application of Article 2.1(a) of the
SCM Agreement by failing to consider, in its assessment of specificity, the entirety of the subsidy that
the Panel had found to exist.
176. The United States emphasizes that the evaluation under Article 2.1 of the SCM Agreement
seeks "to determine whether a subsidy, as defined in paragraph 1 of Article 1 , is specific". 385
Therefore, the analysis "must address the specificity of the subsidy that has been found to exist, not
some other subsidy, and not merely a part of the subsidy found to exist". 386 According to the
United States, once the Panel had identified the sta ndard rate of taxation in Washington State, and
found that the application of a tax rate lower than the standard rate would co nstitute a subsidy, it was
required to assess whether and how Washington St ate tax law "explicitly limits" access to such a
subsidy to "certain enterprises". The Panel failed to make such an assessment because it examined
only whether the Washington State B&O tax rate re duction for aircraft manufacturing, wholesaling,
and retailing was "specific"; however, "the exceptions or differentiated rules that the Panel found to
exist are not limited to the aircraft manufacturing industry". 387 The United States notes, for example,
the Panel's own recognition that there are other manufacturing, wholesaling, and retailing activities,
apart from those relating to selling commercial aircraft and components, that are subject to differential
rates of taxation.388

383Panel Report, para. 7.137.
384United States' other appellant's submission, para. 160.
385Emphasis added by the United States.
386United States' other appellant's submission, para. 168.
387United States' other appellant's submission, para. 172.
388United States' other appellant's submission, para. 172 (referring to Panel Report, paras. 7.202
and 7.203).
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177. The United States argues that the Panel failed to explain the relevance of evidence that "the
differential tax rates were introduced at a range of different times and for a variety of different
purposes".
389 The United States observes that the Panel' s own description identifies the "exceptions"
to the "general rates" as "all part of the same subsidy". 390 The fact that the tax rates applied to other
activities differ from the rate applied to aerospace manufacturing, wholesaling, and retailing, and the
fact that the tax rates differ among one another would, at most, be relevant to the measurement of the
benefit conferred to any particular recipient of th e financial contribution. That question is separate
from that of whether specificity exists. More over, the United States argues that nothing in
Article 2.1(a) indicates that the purpose of a subsidy is relevant to the specificity analysis. As the
Panel explained, de jure specificity must be discerned by evalua ting "the face of the legislation or …
other statements or means by which th e granting authority expresses its will". 391 The United States
further asserts that the fact that differential taxation rates were created or modified at different times is
not relevant to the specificity analysis. The rele vant subject of the analysis should have been the
Washington State tax code as it existed at the time of the Panel's specificity analysis.
178. The United States notes that, despite recognizing the need to examine the Washington State
tax code "as a whole" 392, the Panel made a de jure specificity finding that is not supported by the
evidence on the record and was based on irrelevant considerations. 393 The Panel found that section 3
of House Bill 2294 effectuates the addition of aircraft manufacturing and selling to the existing "list of
activities that are subject to a taxation rate that differs from" the "general rates". 394 The Panel was,
therefore, required to determine whether all of th e industries that had been granted preferential
taxation rates, taken together, woul d constitute "certain enterprises" for purposes of Article 2.1(a) of
the SCM Agreement. The Panel, however, did not conduct such an analysis. Instead, it found that the
taxation rates for other activities are not "part of a common subsidy programme" because they "were
introduced at a range of different times and for a variety of different purposes".
395 I n t h e
United States' view, consideration of timing a nd purpose has potentially "troubling implications" 396,
which can be avoided by properly focusing on the text of the legislation as it exists. In this regard, the
United States notes that the different taxation rates are all set forth in the same provision of the
Washington State tax code and each is described using nearly identical language.

389Panel Report, para. 7.205 (referring to Business and Occupation Tax – Differential Tax Rates,
Revised Code of Washington, section 82.04 (Panel Exhibit US-191)).
390United States' other appellant's submission, para. 175.
391Panel Report, para. 7.192.
392Panel Report, para. 7.199.
393United States' additional memorandum following the first session of the oral hearing, para. 60.
394Panel Report, para. 7.125; United States' additional memorandum following the first session of the
oral hearing, para. 61.
395Panel Report, para. 7.205.
396United States' additional memorandum following the first session of the oral hearing, para. 63.
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179. The United States submits that the relevant qu estion before the Panel was whether access to
the subsidy that it had found to exist—that is, the a pplication of a preferential tax rate lower than the
general rate—was explicitly limited to "certain ente rprises". The Panel observed that the "differential
rates" under the Washington State tax code we re explicitly limited to certain enterprises
397, but failed
to analyze whether access was limited once all of the "d ifferential rates" were considered collectively.
Because the Panel "did not even attempt to ascerta in" whether access to the subsidy was so limited,
the United States maintains that the Panel's specificity finding "is without foundation".398
180. Accordingly, the United States requests the Appella te Body to reverse the Panel's finding that
"the B&O tax reduction granted to the aerospace industry under {House Bill} 2294 is a subsidy that is
specific within the meaning of Article 2.1(a)". 399 The United States adds that it is not possible for the
Appellate Body to complete the analysis. The Pane l failed to make any factual findings as regards to
whether any collection of enterprises or industries in addition to "aerospace" would constitute "certain
enterprises", and there is insufficient evidence on the record to enable the Appellate Body to complete
the analysis and determine that the preferential taxation rates are de jure specific.
3. City of Wichita Industrial Revenue Bonds (IRBs) – Specificity
181. The United States claims that the Panel erred in finding that the City of Wichita IRBs are "in
fact … specific" within the meaning of Article 2.1(c) of the SCM Agreement on the basis that
disproportionately large amounts of the subsidy were provided to Boeing and Spirit AeroSystems
("Spirit").400 The United States maintains that th e Panel used the wrong baseline for its
disproportionality analysis, and that it failed to ta ke into account the lack of diversification of the
economy of the City of Wichita.
182. With respect to the Panel's baseline, the Un ited States criticizes the Panel for using Boeing
and Spirit company-specific employment levels relative to total manufacturing employment within the
jurisdiction of the granting authority. The United St ates argues that the Panel's approach would result
in findings of specificity even where a s ubsidy is "sufficiently broadly available" 401 and there are no
de jure or de facto limits on access to the subsidy. The United States explains that there is no reason
to assume that there is necessarily a "proportiona te" relationship between, on the one hand, the

397Panel Report, para. 7.204.
398United States' other appellant's submission, para. 178.
399Panel Report, para. 7.205.
400In its other appellant's submission, the United States asserts that the Panel erred in finding that the
IRBs issued after the date of the European Communities' request for the establishment of a panel were within
the Panel's terms of reference. However, the United States did not provide argumentation in support of this
claim. At the oral hearing, the United States confirmed that it was not pursuing this particular claim.
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number of employees of a particular company or group of companies relative to all employment in the
Wichita manufacturing sector and, on the other hand, the amount of IRB tax benefits received. It
would have made much more sense, according to the United States, to look at qualifying investments
during the relevant time period, or some other factor that bears an actual relationship to the number of
companies that qualify for IRB funding. The Panel's choice of baseline also took no account of the
fact that some industries "may employ disproportionate numbers of people for a range of perfectly
justifiable reasons".
402 Nor did the Panel account for the fact that many government programmes may
be broadly or generally available, but the number of companies that use the programmes may not be
directly proportionate to the level of overall employment that they represent, or that certain companies
may not be able to assume the administrative effo rt required to participate in the programme, or
otherwise be interested in participating in it. These examples confirm that the Panel's approach, by
focusing on a single numerical ratio and using the tota l level of manufacturing employment within the
jurisdiction of the granting authority as its ba seline, does not provide a valid benchmark for
determining proportionality. Instead, it results in a finding of de facto specificity "whenever
discrepancies exist between a company's relative le vel of employment within an economy as a whole,
and the amount of subsidy it receives".403
183. The United States contends that the Panel could have avoided these problems if it had
followed the approach, advocated by the United States, of using the group of recipients of the alleged
subsidy as the baseline for the disproportionality an alysis. This approach takes into account the
proportion of companies that actually or potent ially qualify for IRB benefits, as opposed to
determining specificity "based on a broader baselin e factor that would bear no relation to the
proportion at which recipients would be expected to use the subsidy". 404 As for the Panel's concern
that the United States' approach would be incons istent with the purpose of determining whether a
subsidy is sufficiently broadly available throughout an economy, the United States contends that the
panel in EC and certain member States – Large Civil Aircraft came to the opposite conclusion. That
panel concluded that, "where the subsidy at issue has been granted pursuant to a subsidy programme,
that programme should normally be used for the purpose of identifying the 'baseline' or 'reference
data' needed to perform a disproportionality analysis".405 The United States asserts that, had the Panel
used the actual or potential recipients of the subsidy programme as the baseline in this case, instead of
the total level of manufacturing employment within the jurisdiction of the granting authority, it would
not have found de facto specificity, "because there is no informa tion on the record to suggest that

402United States' other appellant's submission, para. 184.
403United States' other appellant's submission, para. 186.
404United States' other appellant's submission, para. 188.
405Panel Report, EC and certain member States – Large Civil Aircraft, para. 7.964.
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Boeing's and Spirit's share of the Wichita IRB benefi ts was disproportionate to their respective shares
of the overall group of actual or potential recipients of such IRBs".
406
184. The United States maintains that the Panel also erred by failing to take into account the extent
of economic diversification in the City of Wich ita. The United States observes that it provided
evidence to the Panel to support its argument that the City of Wichita economy was undiversified and
focused on aircraft production. Despite the fact that the European Communities did not submit any
rebuttal evidence, and notwithstanding the require ment in Article 2.1(c) that the extent of
diversification of an economy shall be taken in to account, the Panel rejected the United States'
argument. The Panel "simply ignored that … it w as for the {European Communities} to demonstrate
and for the Panel to find, that in addition to th e appearance of 'dispropor tionality', the subsidy was
in fact specific, even when taking into account the lack of diversification of the Wichita economy and
the evidence submitted by the United States to that effect".407
185. At the oral hearing, the United States reiterated its criticisms of the Panel's approach. First,
the United States noted that the relevance of Boeing's share of economic activity for the
disproportionality analysis is unclear, regardless of the baseline group. Where a subsidy is granted to
virtually all applicants in amounts in proportion to the construction and improvement activity for
which the subsidy is sought, the fact that a comp any receives more of the subsidy because it engages
in more eligible activity cannot amount to a finding that this company has received disproportionately
large amounts of subsidy. Second, even assuming arguendo that Boeing's share of economic activity
was relevant, Boeing's employment level says ve ry little about the company's place within the
economy, because no single indicator is capable of doing so alone. According to the United States,
the European Communities failed to present all the necessary evidence to reach a meaningful
conclusion as regards Boeing's place in the Wichita economy. Third, it is also unclear why Boeing's
share of total economic activity in the entire manuf acturing sector would be relevant for the Panel's
disproportionality analysis. In this respect, the Un ited States agreed with Australia that comparing a
recipient's portion of the subsidy against the b aseline of its relative economic importance in the
economy as a whole would always lead to disproportionality and hence specificity to be found.
186. For these reasons, the United States requests the Appellate Body to reverse the Panel's finding
that the City of Wichita IRBs are "specific" within the meaning of Article 2.1(c) of the
SCM Agreement.

406United States' other appellant's submission, para. 190.
407United States' other appellant's submission, para. 193. (original emphasis)
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4. Adverse Effects
(a) Technology effects of the aeronautics R&D subsidies
187. The United States claims that the Panel erred in finding that the aeronautics R&D subsidies
have caused adverse effects under Articles 5(c) and 6.3 of the SCM Agreement. At the outset, the
United States recalls that the Panel conducted its exam ination of the adverse effects of the aeronautics
R&D subsidies in two stages, beginning with "an analysis of the effects of the subsidies on Boeing's
pricing and product offerings, followed by an anal ysis of the effects of the subsidies … on Airbus'
prices and sales".408 The United States' arguments address both stages of the Panel's analysis.
(i) The Panel's finding that the aeronautics R&D subsidies have
improved Boeing's product offering for the 787
188. The United States raises two separate and independ ent grounds of appeal with respect to the
first stage of the Panel's analysis. First, the Un ited States asserts that the Panel erred when finding
that the aeronautics R&D subsidies have caused a dverse effects under Articles 5(c) and 6.3 of the
SCM Agreement because they have "contributed in a genuine and substan tial way to Boeing's
development of technologies for the 787". 409 Second, the United States claims that the Panel erred in
its application of Article 6.3(c) of the SCM Agreement "by failing to incorporate all of its relevant
findings into the counterfactual analysis of whether, absent the subsidies, Boeing would have
launched the 787 at the same level of technological innovation in 2004".
410
The Panel's findings on a genuine and substantial link between the aeronautics R&D
subsidies and the 787
189. The United States submits that th e facts, as found by the Panel, do not establish the existence
of a genuine and substantial rela tionship of cause and effect between the aeronautics R&D subsidies
and the development of technologies for the 787. The United States notes that the Panel made a
number of findings
411 and characterized the NASA R&D subs idies as "strategically-focused R&D
programmes with a significant and pervasive commercial dimension, undertaken in collaboration with
U.S. industry to provide competitive advantages to U.S. industry by funding research into high risk,
high pay-off research of the sort that individual companies are unlikely to fund on their own". 412
Regarding the USDOD's ManTech and DUS&T programmes, the Panel further noted that these

408Panel Report, para. 7.1660. (original emphasis)
409Panel Report, para. 7.1773.
410United States' other appellant's submission, para. 215.
411United States' other appellant's submission, para. 219 (referring to Panel Report, paras. 7.1740,
7.1742, 7.1745-7.1748, and 7.1771).
412Panel Report, para. 7.1764.
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programmes are "focused on pursuing 'dual use' te chnologies through collaborative efforts with U.S.
industry".
413 However, the Panel also made "a number of other findings" that show that the links the
Panel attempted to forge between NASA/USDOD R&D and the availability of technologies to
the development of the 787 in 2004 do not amount to "a genuine and substantial relationship of cause
and effect".414 The United States thus asserts that, "having made these findings, the Panel had to take
account of them in its analysis of causation", and th e failure to do so means that the Panel's findings
"were in error".415 The United States makes the following specific arguments in this regard.
190. First, the United States asserts that much of the NASA R&D at issue in this dispute was
neither in the causal pathway of the technologies that the Panel considered most relevant to the 787,
nor was it aimed at making Boeing more competitive. 416 Although the Panel "correctly recognized
that NASA research in particular areas of aeronautics science would have different degrees of
relevance to Boeing's ability to launch the 787 in 2004", it erred when examining "only three
programs" and then "extrapolating their eff ects" to the other NASA and USDOD programmes. 417 By
doing so, the Panel "exaggerated the effect" 418 of these remaining programmes. The United States
recalls that the Panel focused on the work on composites and composites technologies studied under
the three NASA programmes—namely, the Adva nced Composites Technology Program ("ACT
programme"), the Advanced Subsonic Technology Program ("AST programme"), and the Research
and Technology Base Program ("R&T Base programme ")—because, in the Panel's view, they were
"the most commercially and technologically significant programmes". 419 The United States therefore
contests the Panel's "broad conclusion" about the nature and magnitude of the entirety of Boeing's
participation in the aeronautics R&D programmes, wh ich was based solely on the Panel's view about
this "subset of the research" under the three programm es that the Panel considered to be "on the high
end of significance to the 787".420

413Panel Report, para. 7.1764.
414United States' other appellant's submission, para. 220 (referring to subsections VI.B.1.a and b of its
415United States' other appellant's submission, para. 221. (emphasis added) The United States "does not
agree with the picture of NA SA's work that the Panel draws. However, the Panel's errors do not, except as
indicated below, rise to the level of a failure to ma ke an objective assessment under Article 11 of the DSU".
(Ibid.)
416United States' other appellant's submission, p. 90, subheading VI.B.1.a.
417United States' other appellant's submission, para. 222.
418United States' other appellant's submission, para. 222.
419Panel Report, para. 7.1702.
420United States' other appellant's submission, para. 224.
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191. The United States recalls, in this respect, that the Panel's findings establish that most of the
NASA R&D programmes "did not relate to the identified areas of commercial advantage for the 787",
and that they "were not directed at a competitive advantage for industry in the first place".
421 As an
example, the United States points to the Aviation Safety Program ("AS programme"), which is aimed
at "saving lives", and not at conferring a "compe titive advantage" or developing technologies for
"Boeing's exclusive or predominant use". 422 It also refers to the High-Speed Research Program
("HSR programme"), which accounts for "nearly 40 per cent of the $1.05 billion in NASA contracts
with Boeing that the Panel found to be subsidies" , and notes that the research under this programme
related to supersonic flight and "was not on the causal pathway that … led to the technologies selected
for the subsonic 787". 423 In the light of this, the United States contends that the Panel's findings
indicate "little or no relationship" 424 between the AS programme or the HSR programme supersonic
research, on the one hand, and the technology used on the 787, on the other hand. Consequently, the
United States asserts that the presence of this r esearch in the larger category of aeronautics R&D
subsidies analyzed by the Panel "call{s} into question whether the remaining research related to
the 787 was sufficient to cause serious prejudice of the type the Panel found to exist".425
192. Second, the United States contends that, ev en when the NASA research was on the causal
pathway toward technologies incorporated in the 787, the Panel found that the research stopped at a
level far lower than what Boeing required in orde r to apply a technology in a commercial context. 426
The United States notes that the Panel itself recognized that "it takes a significant amount of time and
effort to mature a technology from in itial concept to commercial application". 427 Indeed, the Panel
illustrated the distance between different levels of technology maturation by reference to the
NASA technology readiness levels ("TRLs"), a scale that traces the progress of research from "Basic
scientific/engineering principles observed and reported" (TRL 1) to "operational use of actual system
tested, and benefits proven" (TRL 9). 428 The Panel further found that "NASA's research efforts focus
on the development of higher risk technologi es up to TRL 6 (prototype demonstration)". 429 T h e

421United States' other appellant's submission, para. 224. (emphases added)
422United States' other appellant's submission, para. 225.
423United States' other appellant's submission, para. 226.
424United States' other appellant's submission, para. 228.
425United States' other appellant's submission, para. 228.
426United States' other appellant's submission, p. 93, subheading VI.B.1.b.
427United States' other appellant's submission, para. 229 (referring to, inter alia , Panel Report,
para. 7.1758).
428United States' other appellant's submission, para. 230 (referring to Panel Report, para. 7.1748; and
D.J. Peisen et al., Case Studies: Time Required to Mature Aer onautic Technologies to Operational Readiness
(SAIC and GRA, Inc., November 1999) (Panel Exhibit EC-795) ("Peisen Study")).
429Panel Report, para. 7.1748.
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United States contends that any "further work n eeded to mature technologies" to reach "operational
use" (TRL 9) would have to be performed by Boeing or some other entity.
430
193. In this respect, the United States notes that the evidence cited by the Panel indicates that, for
airframe technologies, it takes 16.5 years to move from TRL 1 to TRL 9, 11.3 years of which are
devoted to moving from TRL 6 to TRL 9.
431 This means that it takes, on average, 5.2 years to move
from TRL 1 to TRL 6. The United States highlight s, however, that the Panel "did not use these
figures, apparently because it misunderstood the table it was citing". 432 The Panel stated that "the
average time from TRL 1 to TRL 6 was 11.3 years …, while the average time from TRL 1 to TRL 9
was 16.5 years".433 In the United States' view, these findings by the Panel demonstrate that "even if a
NASA technology is in the causal pathway toward a technology ready for operational use … on
the 787", it would "require{} substantial additional private development work to get there."
434
194. Third, the United States emphasizes that Boei ng devoted a substantial amount of its own
research toward developing the technologies used on the 787. 435 Specifically, the United States
recalls that the Panel itself found that "Boeing co nducted a substantial amount of research on its own
to develop and launch the 787" 436, and that NASA aeronautics research "stops at TRL 6 or lower",
whereas the major time commitment in the development process "comes in the subsequent stages of
turning technological concepts into commercial applications". 437 The Panel also found that, "even at
the earlier stages of development, {Boeing} conducted work independent of NASA". 438 Therefore,
the United States contends that NASA-funded researc h played a small role in Boeing's ability to
launch a technologically innovative 787 in 2004.
195. Fourth, the United States points to the role of Boeing's suppliers, who are responsible for a
substantial amount of the technology needed for the 787, and to Boeing's own experience, which
largely contributed to its ability to integrat e those technologies into a finished product. 439 According
to the United States, even if the Panel were correct that Boeing had NASA and USDOD to "thank{}

430United States' other appellant's submission, para. 230 (referring to Affidavit of Branko Sarh (Panel
Exhibit US-1254), para. 15).
431United States' other appellant's submission, para. 231 (referring to Peisen Study, p. 11).
432United States' other appellant's submission, para. 232.
433Panel Report, para. 7.1748. (emphasis added)
434United States' other appellant's submission, para. 235.
435United States' other appellant's submission, p. 96, subheading VI.B.1.c.
436United States' other appellant's submission, para. 236.
437United States' other appellant's submission, para. 236.
438United States' other appellant's submission, para. 236 (referring to Panel Report, para. 7.1746).
439United States' other appellant's submission, p. 96, subheading VI.B.1.d.
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… in large part"
440 for its technology integration abilities in civil aeronautics, the Panel's findings
establish that the "company's ho me-grown capabilities were also responsible for a large part" of
"Boeing's ability to accommodate the technology stream coming from suppliers". 441 Therefore, the
suppliers' contribution to Boeing's knowledge base attenuates any link between the aeronautics R&D
subsidies and the technology used on the 787.
196. The United States further considers that the Panel failed to make an objective assessment
under Article 11 of the DSU, since there was no mean ingful support in the evidence for the finding
that Boeing's ability to use other companies' comme rcially available technologies on the 787 was due
to "the knowledge and experience that Boeing obtai ned pursuant to the aeronautics R&D subsidies as
an integrator of the various technologies". 442 The Panel simply accepted the European Communities'
assertion that "NASA provides relevant learning and experience to perform the task of integrating
technologies supplied by third parties into a complete {LCA}" 443; but the European Communities
cited no evidence. The United States submits that there was, however, evidence on the Panel record
suggesting that Boeing had developed experience in the application of composites in primary and
secondary structures since the 1960s, had further developed this experience when work on the 777
began in the late 1980s, and had con tinued to develop it in the 1990s. This work involved integrating
the technologies of multiple suppliers independe nt of the NASA and USDOD R&D programmes.
Therefore, the United States asserts, the Panel's fi nding that Boeing could meet the challenge of
integrating technologies from a wide variety of s uppliers "thanks in large part to NASA and
{US}DOD funding and support"444 lacks a basis in the evidence and should be reversed.
197. The United States also alleges that the integration of a variety of supplier technologies in a
commercial programme differs greatly, in both scale and quality, from the work executed pursuant to
the NASA and USDOD R&D programmes at issue. Even the largest NASA programme (the HSR
programme) amounted to only $440 million, which, in the end, was only $307 million given that
NASA cut the programme short. 445 Furthermore, the nature of the "integration" in a NASA project is
different in three critical ways from the "integration" that Boeing performed in producing LCA:
(i) NASA-funded aeronautics R&D projects do not a dvance beyond the laboratory and do not deal
with real-world problems of applying these technolog ies; (ii) most NASA research does not involve

440Panel Report, para. 7.1772 (quoting European Communities' oral statement at the first Panel meeting
(BCI), para. 14).
441United States' other appellant's submission, para. 239.
442Panel Report, para. 7.1772.
443United States' other appellant's submission, para. 247.
444Panel Report, para. 7.1772 (quoting European Communities' oral statement at the first Panel meeting
(BCI), para. 14).
445United States' other appellant's submission, para. 242.
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making usable physical parts and components; and (iii) even in those rare cases when NASA projects
called for making a physical component, it was at most one or two Articles over a period of months or
years for laboratory test purposes.
446 The United States adds that another key difference between even
the largest NASA project (the HSR programme) an d Boeing's development of LCA relates to the
person in charge of the project. For the former, NASA gives instructions as to "what gets done and
how it gets done"447, whereas on an LCA development project, Boeing plays that role.
198. Fifth, the United States contends that NASA's public dissemination requirement lessens the
value of the aeronautics R&D subsidies to Boeing. 448 The United States recalls the Panel's finding
that "NASA publicly disseminated the reports that summarized the results of the research conducted
under the eight {NASA} programmes at issue, and that this represents a situation in which Boeing has
given up something of value in exchange for the funds and access to facilities, equipment and
employees that it receives". 449 The United States recognizes that the Panel also found that "there are
restrictions on the dissemination of certain aspect s of NASA-funded research results, and that public
dissemination does not occur immediately". 450 However, the "critical implication" of the latter
finding is that Limited Exclusive Rights Data ("LERD") clauses " only restrict dissemination of
'certain aspects' of research results for a ' limited ' time".451 Therefore, despite the fact that the Panel
declined to attach an amount to how much of the NASA funding did not confer a benefit, the point
remains that the Panel found that some portion of the $2.6 billion in funding had less value because of
NASA's dissemination policies.
199. Sixth, the United States asserts that, relative to the immense R&D expenditures of Boeing and
its suppliers, that the magnitude of the aeronautics R&D subsidies is too small to create a genuine and
substantial relationship of cause and e ffect with the technologies used on the 787.
452 T h e
United States contends that the $2.6 billion in aer onautics R&D subsidies found by the Panel, spread
over the 18 years from 1989 to 2006, "is small compared to Boeing's own {R&D} spending". 453 In
this regard, the United States notes that, when a full aircraft development programme like the 787 is
under way, Boeing's R&D costs "run to more than $2 billion per year, as opposed to the average of
$153 million per year of aeronautics R&D subsidies found by the Panel". 454 Therefore, since the
$2.6 billion total "is less significant than it appears" , and the total cost of developing an LCA is

446United States' other appellant's submission, para. 244.
447United States' other appellant's submission, para. 245.
448United States' other appellant's submission, p. 101, subheading VI.B.1.e.
449Panel Report, para. 7.1100.
450Panel Report, para. 7.1771.
451United States' other appellant's submission, para. 250. (emphasis added)
452United States' other appellant's submission, p. 102, subheading VI.B.1.f.
453United States' other appellant's submission, para. 251.
454United States' other appellant's submission, para. 251. (original emphasis)
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"greater", any link between the research and Boeing's ability to develop and launch the
technologically innovative 787 in 2004 "is that much more attenuated".
455
200. In conclusion, the United States submits that, wh en considered in their totality, the Panel's
findings do not establish a genuine and substantial relationship of cause and effect and thus do not
meet the requirement under Articles 5 and 6.3 of the SCM Agreement for the aeronautics R&D
subsidies to have caused adverse effects.
201. At the oral hearing, the United States reject ed the European Union's assertion that the
United States is disputing the Panel's findings of fact. The United States responded that it is
challenging only one finding of fact under Article 11 of the DSU (that is, that NASA research projects
are "largely responsible" 456 for Boeing's expertise as an integrator of aircraft), and that, otherwise, it
accepts the facts as laid out by the Panel. In the Un ited States' view, the issue of causation is a legal
issue involving the application of the causation standard in the SCM Agreement to the facts at issue.
202. In the light of the above, the United States requ ests the Appellate Body to reverse the Panel's
finding that the aeronautics R&D subsidies cau sed adverse effects to the interests of the
European Communities, within the meaning of Articles 5(c) and 6.3 of the SCM Agreement.
The Panel's findings regarding the counterfactual analysis
203. The United States raises a second ground of app eal, namely, that the Panel's counterfactual
analysis was insufficient to demonstrate that, but for the aeronautics R&D subsidies, Boeing would
not have been able to launch the 787 in 2004. 457 The United States describes the Panel's examination
of whether Boeing would have launched the 787 wh en it did in the absence of the subsidies as
"cursory"458, and it criticizes the Panel for failing to take into account its own findings regarding the
nature of the subsidy, Boeing's research prioriti es, its actual research activities, and its available
resources. A proper counterfactual causation anal ysis, in accordance with the Appellate Body's
reasoning in US – Upland Cotton (Article 21.5 – Brazil) , would have more rigorously examined all of
the Panel's findings and looked at all of the Pane l's findings in the context of the conditions of
competition.459 It is the United States' contention that several findings of the Panel demonstrate that
Boeing's commercial behaviour relating to the la unch of the 787 would not have changed in the
absence of the aeronautics R&D subsidies.

455United States' other appellant's submission, para. 252.
456United States' other appellant's submission, p. 96, subheading VI.B.1.d.
457United States' other appellant's submission, p. 105, heading VI.B.2.
458United States' other appellant's submission, para. 258.
459United States' other appellant's submission, para. 261 (referring to Appellate Body Report,
US – Upland Cotton (Article 21.5 – Brazil), para. 351).
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204. The United States first recalls the Panel's c onclusion that "{t}he essence of the intense
competition between Boeing and Airbus is to design and build better airplanes".
460 The United States
sees this statement as recognition that LCA manuf acturers "have strong commercial incentives to
spend the resources needed to gain a technical advantage over competitors".461 The United States also
points to the Panel's finding that under the aeronautics R&D programmes "the definition of the scope
and programme of research was arrive d at in collaboration with industry"
462 and that, as a result, the
aeronautics R&D programmes focused on crea ting a competitive advantage for Boeing. 463 Boeing
therefore "knew what research needed to be done, knew that it would result in a competitive
advantage, and could formulate a plan for the de ployment of resources to meet those objectives". 464
Boeing's expected competitive advantage would, in the United States' view, "provide a compelling
motive to do just that".465
205. In addition, the United States points to the Panel's finding that private parties can obtain
access to NASA goods and services through reimbur sable Space Act Agreements, and that, under
these instruments, "NASA requires full reimbursement , defined as 'full cost recovery' for the goods,
services or facilities provided". 466 The United States therefore submits that a private party may
engage the NASA facilities, equipment, and employees by paying the agency the cost of their use.
The United States further refers to the Panel's finding that Boeing was self-funding research on the
same topics as NASA, and was doing so at the same time.
467 The United States also underscores the
Panel's finding that Boeing had sufficient funds to achieve the same learni ng and experience as that
which may have resulted from the aeronautics R&D subsidies at issue.468
206. The United States asserts that all of these findings "point to a straightforward counterfactual
conclusion"469, namely, that, in the absence of the subsidi es, Boeing "would have funded this 'critical'
research itself, either using Boeing's own resources or by obtaining them from NASA under a
reimbursable Space Act Agreement".
470 Accordingly, a "proper counterfactual" analysis would have
determined that "the aeronautics R&D subsidies are not a genuine and substan tial cause of adverse

460Panel Report, para. 7.1765.
461United States' other appellant's submission, para. 263.
462Panel Report, para. 7.1745.
463United States' other appellant's submission, para. 264 (referring to Panel Report, para. 7.1740).
464United States' other appellant's submission, para. 264.
465United States' other appellant's submission, para. 264.
466United States' other appellant's submission, para. 266 (quoting Panel Report, footnote 2624 to
para. 7.1082).
467United States' other appellant's submission, para. 267 (referring to Panel Report, para. 7.1746).
468United States' other appellant's submission, para. 268 (referring to Panel Report, paras. 7.1759,
7.1830, and 7.1831).
469United States' other appellant's submission, para. 269.
470United States' other appellant's submission, para. 270.
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effects".
471 The Panel reached "the opp osite conclusion" and provided "no explanation reconciling
this conclusion with its other findings".472
207. The United States also argues that the Panel's rejection of the proposition that Boeing would
have performed the same research on the grounds that there are "large disincentives for private sector
investment in long term, high risk aeronautical R&D" 473 is contradicted by the Panel's finding that the
aeronautics R&D research has a greater effect than wh at its dollar value would indicate, because "it is
intended to multiply the benefit from a given expenditure". 474 The United States further notes that the
Panel rejected the "United States' invitation to compare the amounts of the aeronautics R&D subsidies
with Boeing's payments to shareholders". 475 The United States explains, however, that it "did not
'invite' this comparison", but rather a comparison of "net income and cash flow from operations over
the period"
476, which it had demonstrated "were sufficien t to support Boeing's commercial behaviour
absent the subsidies". 477 It showed that such commercia l behaviour would have taken place " even if
Boeing had made all $16 billion in shareholde r payments that it made over the period". 478 Moreover,
the Panel made a "more important error" by not accepting the proposition that "the effect of the
aeronautics R&D subsidies was essentially to benefit Boeing's shareholders"
479, which is a necessary
implication of the counterfactual analysis.
208. In conclusion, the United States submits th at the Panel failed properly to conduct its
counterfactual analysis, and thus failed to estab lish a causal link between the subsidies and the
adverse effects to the interests of the European Communities. For these reasons, the United States
requests the Appellate Body to reverse the Pa nel's finding that, "absent the aeronautics R&D
subsidies, Boeing would not have been able to launc h an aircraft incorporating all of the technologies
that are incorporated on the 787 in 2004, w ith promised deliveries commencing in 2008" 480, and also
to reverse the dependent findings that those subsidi es caused adverse effects to the interests of the
European Communities within the meaning of Articles 5(c) and 6.3 of the SCM Agreement.

471United States' other appellant's submission, para. 270. (emphasis added)
472United States' other appellant's submission, para. 271.
473Panel Report, para. 7.1759.
474Panel Report, para. 7.1760.
475Panel Report, para. 7.1760.
476United States' other appellant's submission, para. 275. (emphasis added)
477United States' other appellant's submission, para. 275.
478United States' other appellant's submission, para. 275 (referring to the United States' comment on
European Communities' response to Panel Question 78, para. 270). (original emphasis)
479United States' other appellant's submission, para. 276.
480Panel Report, para. 7.1775.
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(ii) The Panel's finding with respect to the effects of the
aeronautics R&D subsidies on Airbus' prices and sales
209. With respect to the second stage of the Panel's analysis of the technology effects
481, the
United States appeals the Panel's finding that "the effect of the subsidies was significant lost sales,
{threat of} displacement and impedance, and price suppression with regard to the A330 or Original
A350".482
Lost sales and threat of displacement or impedance
210. The United States notes, first, that the Panel erred in finding that Airbus "lost" sales of the
A330 and Original A350 in sales campaigns where "t he customer chose the 787 over the Original
A350".483 It observes that the Qantas, Ethiopian Ai rlines, Icelandair, and Kenya Airways sales
campaigns "each involved a single transaction", and "{i}n none of these transactions did the customer
consider buying both an Original A350 and an A330".484 The United States thus contends that, "to the
extent that any of these transactions resulted in a lo st sale of the {Original} A350, it {could} not also
be a lost sale of the A330", since Airbus "cannot lose the same sale twice".485
211. The United States further asserts that, in each of the lost sales found by the Panel, Airbus
either "did not bid any aircraft" 486, "removed the A330 from consideration in favour of the Original
A350"487, or "offered only the Original A350 against the 787". 488 Therefore, "{n}one of these
campaigns involved a potential order for the Original A350 and the A330".489 The United States adds
that, "even assuming arguendo that the 787 was unavailable at the time of the campaign" or "lacked
the technological features that swayed the customers", Airbus "could only have expected to obtain
additional sales of the Original A350", but not of the A330 as well. 490 Consequently, the lost sales
findings regarding the A330 do not meet the requirements of Article 6.3(c) of the SCM Agreement.
Because the Panel used these "invalid" lost sales findi ngs as the sole basis of its findings of threat of

481The United States clarifies that it makes this claim "assuming arguendo the existence of a genuine
and substantial link between the subsidies and Boeing's ability to reach the level of technological innovation
present in the 787". (United States' other appellant's submission, para. 216)
482United States' other appellant's submission, para. 216.
483United States' other appellant's submission, para. 281.
484United States' other appellant's submission, para. 281. (original emphasis)
485United States' other appellant's submission, para. 281.
486United States' other appellant's submission, para. 283 (referring to European Communities'
first written submission to the Panel, Annex D – 787 Campaign Annex (HSBI), para. 42).
487United States' other appellant's submission, para. 283 (referring to European Communities'
first written submission to the Panel, Annex D – 787 Campaign Annex (HSBI), para. 22).
488United States' other appellant's submission, para. 283 (referring to European Communities'
first written submission to the Panel, Annex D – 787 Campaign Annex (HSBI), paras. 49 and 60).
489United States' other appellant's submission, para. 283. (original emphasis)
490United States' other appellant's submission, para. 284.
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displacement and impedance of the A330 in Australia, Ethiopia, Iceland, and Kenya, the United States
asserts that the latter findings are "similarly inconsistent" with Article 6.3(b) of the
SCM Agreement.
491
212. Second, the United States argues that, in findi ng lost sales for the Original A350 and A330
involving Ethiopian Airlines, Icelandair, and Kenya Ai rways, the Panel erred because it failed to take
account of "customer-specific situa tions showing that Boeing's victory in the campaign was not the
effect of the aeronautics R&D subsidies". 492 The Panel correctly found that "Boeing's customer
relationship precluded lost sales findings at Con tinental Airlines, All Nippon Airways, and Japan
Airlines".493 Yet, the United States submits, "{s}ubstantially the same situation" existed for Ethiopian
Airlines, Icelandair, and Kenya Airways, namely, "{t}hey had all-Boeing fleets, with Ethiopian
Airlines and Kenya Airways seeking a replacement for the 767, and Icelandair looking to replace
its 757s".
494 The Panel's finding was therefore contradictory in that respect.
213. Third, the United States argues that a "similar in consistency" exists between the Panel's lost
sales finding with respect to Icelandair and the Panel' s finding of no lost sale for Royal Air Maroc, by
virtue of Airbus' "failure to submit a formal offer within the time limit specified by the airline (Royal
Air Maroc)".495 Regarding the Icelandair campaign, the United States observes that, for a sale to be
"lost" by a Member, "there must have been some competition in which the Member's producer 'might
have had' the sale". 496 If the Member's producer did not attemp t to get the sale or did not make an
offer that responded to the customer 's requirements, it could not have expected to gain the sale and,
therefore, cannot be unders tood to have "lost" it. 497 The United States thus contends that "{t}he fact
that Boeing secured an order does not necessarily mean, as the Panel appeared to presume, that Airbus

491United States' other appellant's submission, para. 281.
492United States' other appellant's submission, para. 286.
493United States' other appellant's submission, para. 288 (referring to Panel Report, footnote 3725 to
para. 7.1786).
494United States' other appellant's submission, pa ra. 288 (referring to United States' first written
submission to the Panel, U.S. Campaign Annex (BCI), footnote 2 to para. 10).
495United States' other appellant's submission, para. 289 (quoting Panel Report, footnote 3725 to
para. 7.1786).
496United States' other appellant's submission, para. 290. The United States notes that Article 6.3(c) of
the SCM Agreement provides that serious prejudice may arise where "the effect of the subsidy is … lost sales in
the same market", and that the relevant meaning of "lost" appears to be to "fail to obtain (something one might
have had)" or "{b}e deprived of (something) in a contes t or game … be defeated in (a game, battle, a lawsuit)"
(Ibid. (quoting The New Shorter Oxford English Dictionary , 4th edn, L. Brown (ed.) (Clarendon Press, 1993),
Vol. 1, p. 1632 (Panel Exhibit US-14); and referring to United States' first written submission to the Panel,
para. 892) (underlining added))
497United States' other appellant's submission, pa ra. 290 (referring to United States' first written
submission to the Panel, paras. 892 and 893).
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lost the order"
498, and notes that there is no evidence concerning the Icelandair sale to demonstrate
that, "if Boeing had not secured the order, Airbus would have actually secured it".499
214. Lastly, the United States argues that, since the Panel's erroneous finding of lost sales was "the
sole basis"500 for the Panel's finding that there was threat of displacement or impedance in Ethiopia,
Iceland, and Kenya, the latter finding lacks any supp ort. Accordingly, the United States requests the
Appellate Body to reverse these findings by th e Panel under Articles 5(c) and 6.3(b) of the
SCM Agreement.
Threat of displacement or impedance
215. The United States submits that the Panel erred in finding a threat of displacement and
impedance of Airbus 200-300 seat LCA under Article 6.3(b) of the SCM Agreement in Ethiopia,
Kenya, and Iceland. 501 First, the Panel declined to assess whether these countries constituted "third
country markets" within the meaning of Article 6.3(b). 502 Second, the Panel's finding of threat of
displacement and impedance in Ethiopia, Kenya, and Iceland, based solely on a single sales campaign
in each country, means that the Panel interpreted and applied Article 6.3(b) in a manner that "reduces
'market' to a nullity". 503 If the drafters had intended such an interpretation, Article 6.3(b) would
describe displacement or impedance "from a third c ountry" and omit any reference to "a third country
market".504 Therefore, the United States requests the Appellate Body to reverse the Panel's findings of
threat of displacement and impedance.
Price suppression
216. The United States argues that the Panel erroneous ly found that the effect of the aeronautics
R&D subsidies was significant price suppression in the worldwide market for 200-300 seat LCA.
First, with respect to the A330, the United Stat es asserts that the Pane l failed to satisfy the
requirements for a finding of significant pri ce suppression, because "it did not conduct a valid
counterfactual assessment" and "relied on a coincide nce of trends analysis that did not examine
closely enough the evolution of the trends".
505 The United States explains that the Panel relied on a
perceived coincidence between the 2004 launch of th e 787 and a decline in A330 prices, instead of

498United States' other appellant's submission, para. 291. (original emphasis)
499United States' other appellant's submission, para. 292.
500United States' other appellant's submission, para. 294.
501United States' other appellant's submission, para. 295 (referring to Panel Report, paras. 7.1791
and 7.1794).
502United States' other appellant's submission, para. 295.
503United States' other appellant's submission, paras. 295 and 296.
504United States' other appellant's submission, para. 296. (original emphasis)
505United States' other appellant's submission, para. 298.
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conducting a meaningful counterfactual analysis of A330 prices.
506 Moreover, the Panel drew the
wrong conclusion from worldwide market share data for 200-300 seat LCA. 507 Although
acknowledging that the arithmetic conclusions draw n by the Panel in comparing 2000-2003 trends
with 2004-2006 trends were correct, the United St ates nevertheless argues that the Panel erred in
"failing to look more rigorously at the evolution of these trends", which reveals that "no discernible
correlation exists between the 787's market presence and A330 prices". 508 Thus, the Panel's A330
price suppression findings are erroneous because the Panel relied on a "temporal coincidence"
between market share levels and A330 prices that "contradicts its inferences".509
217. Second, with respect to the Original A350, the United States maintains that the Panel's finding
of significant price suppression fails because, "wit h no pricing data of any kind and anecdotal
evidence covering barely 30 per cent of sales", the evidence with respect to the Original A350 "is
insufficient to support any conclusi on about overall pricing levels". 510 The United States recalls that
the Panel identified the worldwide market for 200- 300 seat LCA as the "same market" in which it
would analyze whether the effect of the subsidi es was significant price suppression for the Original
A350 and for the other Airbus aircraft in that "product market" (the A330 and A350XWB-800). 511
The United States does not appeal this aspect of th e Panel's reasoning, but contends that, "once the
Panel selected that market as the frame of refe rence", it was required to assess, in accordance with
Article 6.3(c) of the SCM Agreement, "whether prices of Airbus 200-300 seat {LCA} in that
worldwide market, were significantly suppressed".512
218. The United States further states that, althoug h it was the European Communities' burden to
present evidence in support of its assertions, the Eu ropean Communities did not provide any evidence
regarding price trend data for the Original A350. 513 Furthermore, because an "evaluation of price
suppression without prices is a non sequitur", the United States submits that any conclusion reached
by the Panel fails, "for that reason alone", to estab lish an inconsistency with Article 6.3(c) of the
SCM Agreement.514 The United States notes that, in an attempt "to plug the hole" left by the

506United States' other appellant's submission, para. 299 (referring to Panel Report,
paras. 7.1782-7.1785).
507United States' other appellant's submission, para. 300 (referring to Panel Report,
paras. 7.1783-7.1785).
508United States' other appellant's submission, para. 302.
509United States' other appellant's submission, para. 303.
510United States' other appellant's submission, para. 304.
511United States' other appellant's submission, para. 307 (referring to Panel Report, para. 7.1674; and
European Communities' first written submission to the Panel, para. 1186).
512United States' other appellant's submission, para. 307. (original emphasis)
513United States' other appellant's submission, para. 309 (referring to United States' comments on the
European Communities' response to Panel Question 381, para. 337).
514United States' other appellant's submission, para. 309.
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European Communities, the Panel referred to "anecdotal evidence on 'certain sales'".
515 However, the
"sales" in question were "three campaigns that pr ovide{d} an insufficient basis from which to draw
conclusions" on whether prices in "the same mark et" have been suppressed to a significant degree. 516
The three Original A350 sales campaigns cited by the European Communities represented 30.4% of
the total orders for that aircraft in "the same market", and hence there was "simply no way of knowing
what happened with Original A350 pricing in the majority of sales for that aircraft".517
219. Therefore, the United States submits that, absent ev idence as to actual prices or price trends
for the Original A350 in the world market, the Pane l had no way to test whether the actual evolution
of prices conformed to its theory that "the combination of the superior technology and lower operating
costs of the 787 clearly affected the comparative value of Airbus' A330 and {Original} A350, leaving
Airbus no other option but to reduce the pri ces of its aircraft in order to compete".
518 An "expectation
based on economic reasoning" 519 is not enough to justify the finding necessary to establish an
inconsistency with Article 6.3(c) of the SCM Agreement: that "the effect of the subsidy is …
significant price suppression … in the same market". 520
220. Finally, as regards Airbus's 200-300 seat LCA market as a whole, the United States submits
that, in assessing whether the effect of the aeronau tics R&D subsidies to the 787 was significant price
suppression in the same market within the meaning of Article 6.3(c), the Panel's task was to determine
whether significant price suppression existed for "the product in question, as a whole, in the relevant
market, as a whole". 521 The Panel chose to examine price suppression on a "model-by-model
basis"522, despite the fact that the pro duct in question consisted of all three of the 200-300 seat Airbus
models identified by the European Communitie s: the A330, the Original A350, and the
A350XWB-800. Furthermore, the Panel rejected th e European Communities' assertion of significant
price suppression of the A350XWB-800 523, and, moreover, that it had an insufficient basis from
which to find significant price suppression for the Original A350. This, according to the
United States, "leaves a finding of price suppressi on exclusively with respect to … the A330". 524 A
price suppression finding specific to the A330 cannot be considered as a sufficient basis for the
Panel's conclusion as to the effects "with r espect to the 200-300 seat wide-body LCA product

515United States' other appellant's submission, para. 310.
516United States' other appellant's submission, para. 310.
517United States' other appellant's submission, para. 310.
518Panel Report, para. 7.1792.
519United States' other appellant's submission, para. 311.
520United States' other appellant's submission, para. 311. (original emphasis)
521United States' other appellant's submission, para. 312 (quoting Panel Report, Korea – Commercial
Vessels, para. 7.557). (emphasis added by the United States)
522United States' other appellant's submission, para. 313.
523United States' other appellant's submission, para. 313 (referring to Panel Report, para. 7.1793).
524United States' other appellant's submission, para. 313.
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market".
525 The United States therefore requests the Appe llate Body to reverse the Panel's conclusion
that an effect of the aeronautics R&D subsidies is significant price suppression with regard to Airbus
200-300 seat LCA.
(iii) Conclusion on technology effects of the aeronautics R&D
subsidies
221. In sum, the United States claims that the Pa nel erred in finding that the aeronautics R&D
subsidies have caused adverse effect s under Articles 5(c) and 6.3 of the SCM Agreement. The
United States requests the Appellate Body to re verse the Panel's finding that the aeronautics R&D
subsidies have caused adverse effects to the inter ests of the European Union by contributing "in a
genuine and substantial way to Boeing's development of technologies for the 787". 526 In addition,
because the Panel failed to conduct a proper counte rfactual analysis, the United States requests the
Appellate Body to reverse the Pa nel's finding that, "absent the ae ronautics R&D subsidies, Boeing
would not have been able to launch an aircraft incorporating all of the technologies that are
incorporated on the 787 in 2004, with promised deliveries commencing in 2008"527, and the dependent
findings that those subsidies caused adverse effect s to the interests of th e European Communities.
Finally, the United States requests the Appellate Bo dy to reverse the Panel's findings regarding the
effects of the aeronautics R&D subsidies on the prices and sales of Airbus LCA competing in the
200-300 seat LCA market.
(b) Price effects of the tied tax subsidies
222. The United States raises a number of claims agains t the Panel's analysis of price effects under
Articles 5 and 6.3 of the SCM Agreement. Each of these claims arises from the United States' view
that the Panel "took a number of impe rmissible shortcuts in its analysis of the tax subsidies"—that is,
the FSC/ETI subsidies and the B&O tax rate re ductions—"allegedly conferred on Boeing", and
therefore "did not establish a genuine and substan tial relationship of cause and effect between the
subsidies and the adverse effects alleged by the {European Communities}".
528 The United States
requests the Appellate Body to reverse the Panel's finding that the effects of the FSC/ETI subsidies
and the B&O tax rate reductions in the 100-200 seat and 300-400 seat LCA markets were significant
price suppression, significant lost sales, and disp lacement and impedance, within the meaning of
Articles 5(c) and 6.3(b) and (c) of the SCM Agreement.

525Panel Report, para. 8.3(a)(i).
526United States' other appellant's submission, paras. 217 and 257.
527Panel Report, para. 7.1775.
528United States' other appellant's submission, para. 315.
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(i) The Panel's counterfactual analysis
223. The United States submits that the Panel erred by dispensing with considerations highlighted
by the Appellate Body as important or critical for panels when evaluating cl aims under Articles 5(c)
and 6.3 of the SCM Agreement.
224. The United States argues that the Panel's count erfactual analysis failed to address whether
Boeing's prices would have been higher in the absence of the tax subsidies. A counterfactual analysis
of the effect of subsidies on prices should evaluate whether the subsidized producer's prices "would
have been higher in the absence of the subsidies (that is, but for, the subsidies)".
529 Instead, the Panel
stated that it had "no doubt" 530 that the availability of the FSC/ETI subsidies, in combination with the
B&O tax rate reductions, enabled Boeing to lower its prices beyond the level that would otherwise
have been economically justifiable, and that, in so me cases, this led to Boeing securing sales that it
would not otherwise have made, while, in other cases , it led to Airbus being able to secure the sale
only at a reduced price. The United States contends that "{t}his brief explanation is no substitute for
a counterfactual analysis", and that the Panel "fai led to establish that, ab sent the tax subsidies,
Boeing's prices would have been at a higher, 'economically justifiable' level".531
225. According to the United States, the parties' argumentation and evidence narrowed the
counterfactual question before the Panel to whether, but for the subsidies, Boeing would have had the
resources to act in an economically rational manner. The Panel, however, rejected the
European Communities' argument that, but for the subsidies, Boeing would have been forced, as a
matter of economic necessity, to raise its prices . Accordingly, the Panel erred under Articles 5
and 6.3 of the SCM Agreement by finding that the tax subsidies caused Boeing to lower its prices
beyond an "economically justifiable" level.
Magnitude of the subsidies
226. The United States argues that the Panel failed to conduct a proper analysis of the magnitude
of the tax subsidies. The Appellate Body has stated that the magnitude of a subsidy is an important
factor in the analysis of whether the effect of the subsidy is significant price suppression. 532 In fact,
when it found that the B&O tax rate reductions were, by themselves, too small to cause serious
prejudice, the Panel implicitly recognized that the magnitude could be the decisive factor. The Panel,

529United States' other appellant's submission, para. 321 (quoting Appellate Body Report, US – Upland
Cotton (Article 21.5 – Brazil), para. 370 (original emphasis)).
530Panel Report, para. 7.1818.
532United States' other appellant's submission, para. 323 (referring to Appellate Body Report, US –
Upland Cotton, para. 461).
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however, conducted no such analysis in relation to the FSC/ETI measure. The United States
maintains that both parties put forward calculations showing that the amount of the FSC/ETI benefit
was consistently less than 1% of the value of Boeing's annual sales from 2001 to 2006. The Panel
dismissed this evidence as not "particularly informat ive or illustrative of the capacity for the FSC/ETI
subsidies to have affected Boeing's prices, and by extension, Airbus' prices and sales"
533, but failed to
recognize that this meant the complaining party had fa iled to meet its burden of proof. In respect of
its lost sales claims, the European Communities' ow n evidence shows that a counterfactual increase in
Boeing's prices by less than 1% would not have ch anged the outcome of campaigns won for the 737
and 777. As to significant price suppression, the European Communities never asserted or attempted
to demonstrate that suppression of Airbus' prices by less than 1% ad valorem would constitute
significant price suppression. Because those subsid ies were simply too small during the 2004-2006
period to have had the effect of causing Boeing to win significant sales and market share from Airbus,
or to suppress Airbus' prices by a significant de gree, the United States asserts that no causal link
exists.
Correlation between the subsidies and their effects
227. The United States contends that the Panel fa iled to address the absence of any correlation
between the amount of the tax subsidies and the alle ged lost sales, price suppression, and changes in
market share. The Appellate Body has previ ously found that a discernible correlation would be
expected between significantly suppressed prices a nd the challenged subsidy if the effect of the
subsidy is significant price suppression, and that this "is an important factor in any analysis of
whether the effect of a subsidy is significant price suppression". 534 The same reasoning applies in
evaluating whether the effect of the subsidy is signifi cant lost sales or displacement or impedance. In
this dispute, no correlation exists between the level of subsidies and the evol ution of prices and sales
for LCA in the 2001-2003 and 2004-2006 periods. The United States argues that these facts show
that no meaningful relationship exists between the tax subsidies and Boeing's prices for and sales of
LCA, and yet the Panel never made any findings on this issue.
Non-attribution factors
228. The United States argues that the Panel failed to perform an adequate non-attribution analysis,
as required under Articles 5(c) and 6.3 of the SCM Agreement. Although the Appellate Body has
observed that "it is necessary to ensure that the effects of other factors on prices are not improperly

533Panel Report, para. 7.1816.
534Appellate Body Report, US – Upland Cotton, para. 451.
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attributed to the challenged subsidies"
535, the Panel did not engage in any meaningful analysis of the
effects of other factors on the prices and sales of either Boeing or Airbus. The United States had
argued before the Panel that Airbus A320 and A340 sales and prices were not higher than they were
because: (i) Airbus undercut prices for both 100-200 seat and 300-400 seat LCA, which increased its
market share dramatically but set customer expectat ions for low prices; (ii) Boeing decided to price
the 737 and 777 more competitively following significant market share losses to Airbus; and
(iii) prices for Airbus' four-engine A340 fell (as comp ared to the more fuel-efficient 777) when fuel
prices spiked in 2005 and 2006. Ye t the Panel failed to explain inc onsistencies between its findings
and evidence on the record regarding these non-subsidy factors. In fact, the United States argues, the
Panel did not mention any non-subsidy factors in its analysis, other than to state that the United States'
arguments and evidence "do not reverse or attenuate the pervasive and consis tent pricing advantage
that Boeing had in LCA campaigns in the 2001-2003 period due to the availability of the FSC/ETI
subsidies".
536 The United States considers that the Pane l's statement simply restated the test
enunciated by the Appellate Body, but did nothing to ensure that the effects of other factors on prices
were not improperly attributed to the challenged subsidies.
(ii) Treatment of FSC/ETI as prohibited export subsidies
229. The United States submits that the Panel erred by presuming that a finding that a subsidy is
prohibited under Part II of the SCM Agreement also signifies that the subsidy causes serious prejudice
under Part III of that Agreement. In particular, the United States refers to th e Panel's statement that,
"precisely because the FSC/ETI subsidies are con tingent on Boeing making export sales, we are
entitled to determine, absent reliable evidence to the co ntrary, that by their very nature, they will have
trade distortive effects".537 Although the Panel did not use the words "presumption" or "presume", the
mechanism it described is indistinguishable fro m a rebuttable presumption. The United States
considers that the relationship that the Panel posited between findings under Parts II and III is
contrary to the terms of the SCM Agreement.
230. The United States contends that there are "many important differences" 538 between Parts II
and III of the SCM Agreement. Unlike Part III, Part II applies without a finding of specificity,
requires no finding as to the effect of the subsidy, and has no significance requirement. In addition,
Part II places an absolute prohibition on certain subsidies, whereas Part III allows a Member to
maintain a subsidy if it can remove any adverse effects. The flaw in the Panel's reasoning is that

535Appellate Body Report, US – Upland Cotton, para. 437.
536Panel Report, para. 7.1819.
537Panel Report, para. 7.1810.
538United States' other appellant's submission, para. 340.
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Part II prohibits export-contingent subsidies and import-substitution s ubsidies even if they have no
adverse effects. As a result, a finding under Part II cannot be said to "entitle"
539 a panel to assume
trade-distortive effects in other Parts of the SCM Agreement.
231. The United States argues that an examination of the context provided by various provisions of
the SCM Agreement reveals further flaws in the Panel's re asoning. When the negotiators meant to
transpose legal standards from one Part of the SCM Agreement to another, they created specific
cross-references. The absence of such a cross-reference indicates that findings under Part II do not
create presumptions for purposes of Part III. Now expired Article 6.1 in Part III provided that
"serious prejudice in the sense of subparagraph (c) of Article 5 shall be deemed to exist" in specified
circumstances, but subsidies prohibited under Part II of the SCM Agreement were not covered. Part V
further confirms the Panel is wrong because, a lthough Article 15 sets out detailed conditions under
which an investigating authority may find that subs idized imports cause material injury, it does not
contain any language entitling such an authority to determine that a prohi bited subsidy will have
trade-distortive effects. The United States considers that Article 6 requires analysis of "a number of
inherently factual issues", and that "{t}he Panel' s analytical short-cut side-steps these issues and,
therefore, does not provide the type of robust seri ous prejudice analysis the Appellate Body has found
to be necessary".
540
232. The United States also considers that the WT O dispute settlement reports relied upon by the
Panel are of limited relevance, because they di d not involve actionable subsidy claims under
Articles 5 and 6.3 of the SCM Agreement. Moreover, these reports do not support the Panel's
conclusions. Although the A ppellate Body referred, in Canada – Aircraft , to cases involving
prohibited export subsidies "for which the adverse effects are presumed" 541, there is no indication that
the Appellate Body meant to refer to adverse eff ects for purposes of Article 5. In any event, the
Appellate Body's statement was obiter dictum , and is best understood as generally describing the
situation under Part II, and not as creati ng a presumptive status for Part III of the SCM Agreement.
Moreover, although the panel in Brazil – Aircraft stated that prohibited subsidies are "specifically
designed to affect trade"542, this does not mean that they will necess arily have trade-distortive effects.
The United States adds that the SCM Agreement does not focus on the intent of the granting authority
but, rather, on the actual effects of the subsidy.

539United States' other appellant's submission, para. 341.
540United States' other appellant's submission, para. 345 (referring to Appellate Body Report, US –
Upland Cotton , paras. 434, 437, 451, 458, and 461; and Appellate Body Report, US – Upland Cotton
(Article 21.5 – Brazil), para. 351).
542Panel Report, Brazil – Aircraft, para. 7.26.
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233. The United States contends that the Panel's aggr egation of its analysis of the FSC/ETI and
B&O tax measures also "exposes a peril"
543 of the Panel's approach. The Panel found that the B&O
tax rate reductions, by themselves, were of insu fficient magnitude to cause serious prejudice with
respect to 200-300 seat LCA. However, the Panel disregarded evidence that FSC/ETI benefits were
relatively insignificant in comparison to Boeing's deli very and order values. Rather than explain why
this magnitude data was irrelevant, the Panel relie d on the FSC/ETI tax measure's status as an export
subsidy. Thus, the United States argues, the Panel's presumption as to the "trade-distortive effects" of
prohibited subsidies was "outcome-determinative"544 in the finding that the Washington State and City
of Everett B&O tax rate reductions caused ser ious prejudice in the 100-200 seat and 300-400 seat
LCA markets.
234. The United States submits that, without the Panel' s presumption of trade-distortive effects, its
entire finding that the tax subsidies caused adverse ef fects falls apart. This is because "{t}he finding
that subsidies tied to sales will have an impact on those sales is accurate, but meaningless in this
context, as it indicates nothing about whether the imp acts take the form of displacement, impedance,
price suppression, or lost sales, or whether any impact has the requisite level of significance". 545 The
observations that subsidies can have a significant im pact or can enable certain behaviour by Boeing
are also insufficient, as neither establishes that Boeing actually enga ged in the behaviour that these
subsidies would make possible. The United States concludes that, because the Panel's assessment
was "so dependent on its impr oper reference to FSC's status as an export subsidy" 546, the Panel's
finding with regard to the tax subsidies does not es tablish that they caused adverse effects in the
100-200 seat and 300-400 seat LCA markets.
(iii) Additional claims relating to the Panel's analysis of price
suppression, lost sales, and displacement and impedance
Price suppression
235. The United States submits that the Panel f ound significant suppression of prices for Airbus'
A320 and A340 without undertaking the requisite price analysis for those aircraft and Boeing's 737
and 777. The Appellate Body has observed that, under Article 6.3(c) of the SCM Agreement, an
assessment of general price trends is "clearly re levant to significant price suppression (although, as
the {p}anel itself recognized, price trends alone are not conclusive)".547 With respect to the 737/A320

543United States' other appellant's submission, para. 350.
544United States' other appellant's submission, para. 350.
545United States' other appellant's submission, para. 352.
546United States' other appellant's submission, para. 354.
547Appellate Body Report, US – Upland Cotton, para. 434.
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and 777/A340 market segments, the Panel: (i) never referred to the pricing trend data on the record
for the relevant aircraft; (ii) never examined othe r relevant factors affecting pricing, such as Airbus'
price-undercutting and high production le vels or the role of surging fuel costs to evaluate whether the
pricing data was consistent with price suppression; and (iii) never assessed the degree of price
suppression to determine whether it was "significant " within the meaning of Article 6.3(c). The
United States maintains that the Panel's finding is therefore inadequate as a matter of law under
Article 6.3(c), and that, given that price trends we re "plainly inconsistent with a price suppression
phenomenon"
548, the Panel had no rational basis for finding that the tax measures suppressed prices to
a significant degree.
Lost sales
236. The United States argues that, contrary to its own findings on the aeronautics R&D subsidies
and with the reports of other panels, the Panel did not identify the transactions that it found to have
caused significant lost sales. Accord ing to the United States, the Pane l's findings are insufficient to
establish that serious prejudice existed for purposes of Article 6.3(c). Moreover, the United States
contends that "the high degree of vagueness" 549 in these findings means that the Panel failed to satisfy
its obligation under Article 12.7 of the DSU to includ e in its report "the basic rationale behind any
findings and recommendations that it makes".
237. The United States maintains that a finding of significant lost sales under Article 6.3(c)
requires a positive finding as to each of the operative el ements: (i) significance; (ii) lost sales; and
(iii) a market in which they occur. The absence of any one of these criteria means that there is no
serious prejudice under Article 6.3(c). Furthermore, a panel must specify what facts exist to meet
each of these elements. The use of the word "sales" highlights that the "lost sales" under
Article 6.3(c) are not generalized levels of market share or volume, but individual transactions. The
United States considers that this is confirme d by the panel's examin ation and findings in EC and
certain member States – Large Civil Aircraft as to each of the transactions alleged by the
United States in that case to be a lost sale.
238. By contrast, when it came to analyzing sales of 100-200 seat and 300-400 seat LCA, the
Panel did not indicate what particular sales it conclude d had been lost. Instead, it stated simply that
the effects of the subsidies "constitute significant lost sales … within the meaning of Article 6.3(c) of
the SCM Agreement".550 The Panel's analysis neither provides the names of the campaigns nor refers

548United States' other appellant's submission, para. 369.
549United States' other appellant's submission, para. 355.
550Panel Report, para. 7.1822.
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to other materials that do. The Panel summarized th e European Communities' allegations of lost sales
of its 100-200 seat A320 to Ryanair, Japan Airlines, Singapore Airline Leasing Enterprise, Lion Air,
and DBA, and of its 300-400 seat A 340 to Singapore Airlines, Air New Zealand, and Cathay Pacific.
However, the Panel's "vague" finding that there were "significant lost sales" offers no hint as to which
transactions it considered to be lost sales.
551 The United States considers that "{t}his silence means
that the Panel's finding failed to meet the minimu m substantive requirements under Article 6.3{(c)}
for finding that the effect of {the} subsidies is significant lost sales".552
239. Finally, the United States contends that the Panel also failed to meet the procedural
requirement under Article 12.7 of the DSU that its report "set out the findings of fact, the applicability
of relevant provisions and the basic rationale behind any findings and recommendations that it
makes". In Chile – Price Band System (Article 21.5 – Argentina) , the Appellate Body explained that
the explanations and reasons provided by a panel must suffice "to disclose the essential, or
fundamental, justification for those findings and recommendations". 553 The United States contends
that the Panel acted inconsistently with this oblig ation because, in failing to identity the lost sales
transactions, the Panel failed to set out the basic ra tionale behind its finding, and therefore violated
Article 12.7 of the DSU.
Displacement and impedance
240. The United States argues that the Panel also erred by not naming the third countries in which
it found displacement or impedance, and, accordin gly, did not make findings sufficient to establish
that serious prejudice existed for purposes of Article 6. 3(b). The United States also contends that "the
high degree of vagueness" in these findings means th at the Panel has failed to satisfy its obligation
under Article 12.7 to include in its report "t he basic rationale behind any findings and
recommendations that it makes".554
241. The United States argues that a finding of displacement or impedance under Article 6.3(b)
requires a positive finding as to each of the operative el ements: (i) a subsidy; (ii) a like product;
(iii) a Member exporting that product; and (iv) a th ird-country market. The absence of any one of
these criteria means that there is no serious prejudi ce under Article 6.3(b). Moreover, a panel must
specify what facts exist to meet each of the elemen ts. The fact that Article 6.3(b) requires that
displacement or impedance exists with regard to a "market" further underscores that it requires a

551United States' other appellant's submission, para. 362.
552United States' other appellant's submission, para. 362.
553Appellate Body Report, Chile – Price Band System (Article 21.5 – Argentina) , para. 243 (quoting
Appellate Body Report, Mexico – Corn Syrup (Article 21.5 – US), para. 106).
554United States' other appellant's submission, para. 355.
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market-by-market conclusion, and not a generalized finding with regard to multiple markets. The
United States points out that, when the panel in EC and certain member States – Large Civil Aircraft
addressed claims under Article 6.3(b), it identified the third-country markets in which it found that
displacement had occurred (Australia, Brazil, China, India, Korea, Mexico, Singapore, and
Chinese Taipei).
555
242. The United States maintains that, before the Pa nel, the European Communities identified the
relevant third-country markets—that is, Singapo re, Indonesia, and Japan for 100-200 seat LCA and
Singapore, New Zealand, and Hong Kong, China for 300-400 seat LCA. The Panel addressed none of
this evidence, instead making a generalized conc lusion that the effects of the subsidies are
"displacement and impedance of exports from third country markets, within the meaning of
Article 6.3(b)".
556 The Panel referenced the third-country markets by name only in the section of its
Report summarizing the European Communities' arguments, and did not indicate which of them were
encompassed in its generalized fi nding. The United States thus c onsiders that the Panel's silence
means that it "failed to meet th e minimum substantive requirements under Article 6.3(b) for finding
that the effect of {the} subsidies is to displ ace or impede exports of a like product in a third
country".557
243. The United States raises two additional claims in respect of the Panel's analysis of
displacement and impedance. First, the United States asserts that the Panel omitted critical steps in its
analysis. The United States observ es that a necessary component of any displacement or impedance
analysis under Article 6.3(b) is an assessment of the data concerning the re lationship between exports
of the subsidized product and the like product in the third-country market at issue. Although the
record in this dispute included data on market shar e and delivery volumes in each of the third-country
markets identified by the European Communities, the Panel never referred to that data. The
United States argues that, as a result, the Panel made it "impossible to discern in which of the markets
it found displacement and impedance"
558, and consequently neglected to conduct the analysis needed
to show that displacement or impedance had occurred.
244. The United States further maintains that, to the extent the Panel made a finding of
displacement and impedance with regard to countries in which Airbus had 0% or 100% of deliveries,
a finding of displacement, impedance, or both would be inconsistent with Article 6.3(b). This is the
case for the 737 and A320 aircraft in Singapore, where Airbus retained a 100% market share

555United States' other appellant's submission, para. 357 (referring to Panel Report, EC and certain
member States – Large Civil Aircraft, paras. 7.1790 and 7.1791).
557United States' other appellant's submission, para. 359.
558United States' other appellant's submission, para. 365.
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throughout the reference period, and in Indonesia, where Boeing made no deliveries, but where
Airbus went from making no deliveries in 2004- 2005, to making two deliveries in 2006. The
United States maintains that, "{i}n any counterf actual analysis, Airbus' market share would be
unchanged".
559 For the 777 and A340 aircraft in the Hong Kong, China and New Zealand markets,
because there were no Airbus deliveries during the re ference period, "there was no basis for the Panel
to find displacement".560
245. Second, the United States argues that, because the Panel made no findings that any of the
countries in which the European Communities alleged displacement or impedance was a "market", the
Panel erred in applying its "generalized findings of displacement and impedance" 561 in third-country
markets covering Indonesia, Japan, and Singapo re for the 100-200 seat LCA, and covering
Hong Kong, China, New Zealand, and Singapore for the 300-400 seat LCA. The United States
requests reversal of any findings the Panel is consider ed to have made with regard to displacement or
impedance of these products in the indicated markets.
246. In conclusion, the United States submits that the Panel did not satisfy the requirements for
establishing that the tax subsidies have caused adverse effects to the interests of the European Union,
and therefore requests the Appellate Body to reverse the Panel's findings under Articles 5(c)
and 6.3(b) and (c) of the SCM Agreement in that regard.
D. Arguments of the European Union – Appellee
1. NASA Procurement Contracts and USDOD Assistance Instruments
(a) Financial contribution – Application of the "purchase of services"
test
(i) NASA
247. The European Union argues that the Appellate Body should reject the United States' appeal of
the Panel's findings that the payments and ot her support provided to Boeing under the NASA
procurement contracts constitute a financial contribution under Article 1.1(a)(1) of the
SCM Agreement.

559United States' other appellant's submission, para. 365.
560United States' other appellant's submission, para. 365.
561United States' other appellant's submission, para. 366.
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248. The European Union recalls its own appeal of the Panel's legal interpretation of
Article 1.1(a)(1) as excluding "purchases of services" from the scope of that provision. The
European Union asserts that, if the Appellate Body agrees with the European Union and reverses the
Panel's interpretation, the United States' appeal of the Panel's finding would be moot, because NASA's
payments to Boeing would be "indisputably"
562 financial contributions, irrespective of whether they
could be properly characterized as "purchases of ser vices". This, contends the European Union, is
because "the sole basis" 563 of the United States' appeal of the financial contribution finding is that the
Panel erred by finding that NASA-funded research is not part of a purchase of services.
249. The European Union argues that, in any event, the United States' arguments that the Panel
improperly applied Article 1.1(a )(1) without considering the evidence of what the government
received is essentially an argument that the Panel improperly weighed the facts. This type of
argument is, at best, one that implicates an analys is under Article 11 of the DSU, and not an error of
application. In support, the European Union relies on the Appellate Body report in EC and certain
member States – Large Civil Aircraft , which states that "how the {p}anel reasoned over disputed
facts"564 properly pertains to Article 11 of the DSU. As a consequence of the above, the content of the
United States' appeal should have been raised, if at all, as a violation of Article 11 of the DSU and
under the standard of review appropriate to such an allegation.
250. Even assuming arguendo that the United States can bring th is claim under Article 1.1(a)(1),
the European Union maintains that the United States ' arguments fail on their merits because they rely
entirely on an erroneous characterization of the Pa nel Report. In the European Union's view, the
Panel properly considered the totality of the evidence , and used its discretion as the trier of facts to
conclude that the NASA R&D contracts are not properly characterized as "purchases of services". Its
finding therefore stands, even though the United States came to a different conclusion as to the
principal beneficiary and user of the NASA R&D contracts.
251. The European Union does not dispute that the Panel did not fully discuss in its Report every
argument and piece of evidence that the United St ates had put forward, but notes that the Panel
specifically stated that it had in fact considered the evidence "in its totality".
565 The European Union
points out that the United States does not criticiz e the Panel for basing its decision on the five

562European Union's appellee's submission, para. 8.
563European Union's appellee's submission, para. 28.
564European Union's appellee's submission, para. 33 (quoting Appellate Body Report, EC and certain
member States – Large Civil Aircraft, para. 880).
565European Union's appellee's submission, para. 41.
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particular categories of evidence
566, but, rather, contends that the Pa nel's consideration of each of
these five categories was entirely one-sided and unba lanced. In the European Union's view, however,
"it is clear from the Panel Report" 567 that the Panel discussed the limited evidence and arguments on
the record, and the fact that the United States di sagrees with the Panel's overall weighing of the
evidence and the Panel's ultimate conclusion does not constitute an erro neous application of
Article 1.1(a)(1).
252. With respect to the Panel's alleged failure to make an "objective assessment" under Article 11
of the DSU, the European Union disagrees that th e Panel systematically failed to consider the
evidence submitted by the United States. The Euro pean Union asserts that the Panel Report shows
that the Panel did in fact assess the evidence that the United States alleges the Panel failed to consider.
Specifically, the Panel considered the evidence re garding NASA's objectives, the alleged benefit and
use to the government of NASA R&D, and the alleged usefulness of the programmes to the
government and to unrelated third parties. Howe ver, the European Union submits, nothing in the
evidence and arguments cited by the United States demonstrates that the Panel exceeded its discretion
to weigh the facts in finding that the principal bene fit and use of the NASA R&D contracts accrued to
Boeing, rather than the government.
253. At the oral hearing, the European Union recalled that neither of the participants has appealed
the Panel's "principally for the benefit and use" test for determining whether the NASA and USDOD
R&D contracts and agreements at issue were genuine "purchases of services". Rather, the
European Union argued that any such test was unn ecessary, since there is no exclusion for purchases
of services under Article 1.1(a)(1) of the SCM Agreement, and the United States appeals only the
Panel's application of the test.
254. In the European Union's view, the Appellate B ody has no basis to reconsider or reverse the
Panel's test, given that neither the United States nor the European Union has appealed the test.
Furthermore, the Appellate Body should recall th at the Panel never indicated that this was the
exclusive test for determining whether any tran saction is a genuine purchase of services. If the
Appellate Body were to reverse the test—contrary to the wishes of both participants—and formulate
its own test, the European Union submits that the Panel's underlying factual findings and the

566The Panel considered: (i) the legislation authorizing the R&D programmes at issue; (ii) the types of
instruments entered into between NASA and Boeing; (iii) whether NASA has any demonstrable use for
R&D performed under these programm es; (iv) the allocation of inte llectual property rights under these
transactions; and (v) whether the tran sactions at issue have the typical el ements of a "purchase of services".
(European Union's appellee's submission, para. 43 (referring to Panel Report, para. 7.980))
567European Union's appellee's submission, para. 51.
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uncontested facts about the NASA R&D contracts at i ssue would be more than sufficient to allow the
Appellate Body to complete the analysis under any possible test.
(ii) USDOD
255. As it did with NASA, the European Union argues, at the outset, that, if the Appellate Body
were to reverse the Panel's finding that Article 1.1(a)(1) of the SCM Agreement excludes from its
scope transactions properly characterized as "purchase of services", this reversal would render moot
the United States' appeal relating to the Panel' s conclusion that the payments and other support
provided through the USDOD assistance instruments are financial contributions.
256. The European Union submits that, in any event, the Panel's finding should be upheld. First,
the European Union considers the United States' ar guments to be in the nature of claims under
Article 11 of the DSU, because they are essentially arguments that the Panel improperly weighed the
facts. The European Union points out that the Unite d States has not raised an Article 11 claim in its
Notice of Other Appeal or other appellant's submissi on. By failing to lodge an Article 11 claim, the
United States' allegations, even if true, would not allow for a reversal of the Panel's finding.
257. Second, the European Union asserts that "the Panel properly consider ed and evaluated the
{United States'} allegations and evidence regarding the nature of the {US}DOD R&D support, ITAR,
and other factors related to the benefit to the US Government".
568 The European Union notes that
"{p}resumably", because the Panel found that the R&D conducted pursuant to procurement contracts
constitutes a purchase of services that is therefore excluded from the scope of the SCM Agreement, the
United States does not argue that the Panel's anal ysis of the nature of the USDOD R&D programmes
"is as one-sided as the Panel's NASA analysis". 569 Rather, the United States "alleges two discrete
types of evidence" that it claims the Panel failed to consider, and then "advances an amorphous catch-
all claim about the Panel's weighing of the evidence that it did consider". 570 According to the
European Union, however, neither of the United States' claims can stand.
258. With respect to the United States' allegation that the Panel elevated form over substance in its
assessment of the USDOD assistance instruments by not considering the statements of work in the
individual instruments, the European Union quotes the Panel's statement that it had "examined, in
detail, the different substantive features of these contracts and agreements, as reflected … in U.S. laws

568European Union's appellee's submission, p. 63, subheading II.B.4.c.
569European Union's appellee's submission, para. 140.
570European Union's appellee's submission, para. 140.
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and regulations and in the contracts and agreements themselves".
571 The European Union notes that a
panel has discretion to decide what is discussed in its report. The European Union further mentions
the following reasons that may e xplain the absence of a discussion of this evidence in the Panel
Report. First, the assistance instruments at issue contain HSBI, and therefore could not be reproduced
in the Panel Report. Second, the evidence before the Panel was unreliable b ecause the United States
provided only summaries of the statements of work and did not grant access to the majority of the
USDOD assistance instruments.
259. The European Union does not consider that th e Panel's discussion of evidence indicating the
military objectives of the R&D highlighted by the Un ited States would "materially contribute" to the
Panel's discussion, as the Panel acknowledged that "the purpose of these programmes was to conduct
R&D aimed at designing more advanced weapons or other defense systems or to reduce the costs of
such systems".572 The European Union further notes that the summaries of the assistance instruments
contain not only information about military objectives, but also commercial aircraft.573
260. As to the ITAR, the European Union maintain s that the Panel "considered and specifically
rejected"574 the United States' claims that the ITAR make it "effectively impossible" 575 for Boeing to
benefit from technology developed through the assistan ce instruments. The Panel specifically noted
that two of the USDOD programmes had "the explicit objective of being applied towards civil
aircraft".576 Moreover, the United States ignores ev idence that Boeing does benefit and use
technology acquired from USDOD R&D, including a statement by the United States itself that " some
{USDOD} RDT&E has applications in the civil sector" 577, and statements by the
European Communities—which were not rebutte d by the United States—that Boeing gained
knowledge about design and produc tion, which it applied to the design and production processes but
not to the physical content of the LCA, a nd thus did not breach ITAR restrictions. 578 T h e
European Union also refers to the fact that the training and experience Boeing's employees received
on USDOD programmes was transferred to the US LCA industry when these employees were

(underlining added by the European Union)
573See European Union's appellee's submission, paras. 151 and 152.
574European Union's appellee's submission, para. 153.
576Panel Report, para. 7.1160. (original emphasis)
577European Union's appellee's submission, para. 155 (quoting United States' response to Panel
578European Union's appellee's submission, para. 156 (referring to European Communities' second
written submission to the Panel, para. 437).
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transferred to the LCA programme
579, and that Boeing's LCA R&D discoveries were actually
rehashed USDOD R&D discoveries. The European Union argues that the Panel's findings on adverse
effects illustrate that it was well aware of the uses of USDOD R&D-created knowledge and
technology for Boeing LCA.
261. The European Union rejects the United States' argument that the Panel improperly weighed
the five categories of evidence it considered und er its "purchase of services" test. First, the
European Union asserts that the United States' argument is a "purely factual" 580 argument and is not
properly brought under Article 1.1(a)(1) of the SCM Agreement. Second, assuming arguendo that the
United States' allegation can be analyzed as a potential erroneous application of Article 1.1(a)(1), the
United States' arguments "must fail on their merits".581
262. Regarding the first and second categories of evidence—namely, the US legislation
authorizing the programmes and transactions at issue and the different instruments entered into by the
USDOD—the United States attempts to "divine" ho w the Panel may have weighed the evidence, and
"finds error" in what it alleges " may have been the Panel's approach". 582 In particular, the
United States adduces that the Panel based its conclu sions on "the formal distinction drawn in U.S.
law between acquisition instruments and assistance instruments". 583 However, the European Union
contends that the Panel was "entirely clear" that it did not base its conclusions on such formalities,
and hence the United States' claim is "directly contradicted by the Panel Report, itself".584
263. With respect to the third and fourth categori es of evidence—namely, the stated objectives of
the USDOD RDT&E programmes at issue and the a llocation of intellectual property rights—the
European Union notes that the United States ag rees that the Panel "may have reached the correct
conclusion".585 Regarding the objectives of the USDOD pr ogrammes, the United States does not take
issue with the Panel's finding that "at least two … ha d the explicit objective of developing 'dual use'
R&D"586, which supports the Panel's c onclusions about assistance instruments, given that these two
programmes are funded through assistance instruments. As for the allocation of intellectual property
rights, the Panel understood that Boeing retained patent rights to any invention that it conceived in the

579European Union's appellee's submission, para. 157 (referring to European Communities' second
written submission to the Panel, paras. 440-446).
580European Union's appellee's submission, para. 159.
581European Union's appellee's submission, para. 160.
582European Union's appellee's submission, para. 161 (referring to United States' other appellant's
submission, para. 102). (original emphasis)
583United States' other appellant's submission, para. 103.
584European Union's appellee's submission, para. 162 (referring to Panel Report, para. 7.1169).
585European Union's appellee's submission, para. 165 (referring to United States' other appellant's
submission, paras. 107 and 108). (original emphasis)
586Panel Report, para. 7.1148.
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course of performing the USDOD R&D procurement contracts and assistance instruments.
587 In the
European Union's view, this factor "again weighs in favour of a finding that assistance instruments are
not purchases of services".588
264. The European Union further rejects the United States' assertion that the Panel conducted too
narrow an analysis of the last category of evidence, that is, whether the transactions at issue involved
the typical elements of a purchase of services. 589 The European Union recalls the Panel's finding that,
unlike procurement contracts, assistance instrume nts do not provide for any fee or profit for the
contractor590, and that this "atypical" 591 element supports the conclusion that USDOD assistance
instruments are not purchases of services. The Un ited States alleges that the Panel should have
considered other aspects of the assistance instruments that could have explained "why the absence of
a 'profit' for Boeing did not make a differen ce in the exchange between Boeing and {US}DOD" 592;
however, in the European Union's view, this is precisely what the Panel examined throughout its
analysis of the five categories of evidence. Lastly , the European Union submits that the United States
provides no support whatsoever for its assertions a bout value-for-value exchanges between Boeing
and the USDOD, and therefore it "is not surprising"593 that the Panel did not discuss them.
265. As it did with respect to the NASA measures, the European Union argues that the Appellate
Body has no basis to reconsider or reverse the Panel' s "principally for the benefit and use" test, given
that neither the United States nor the European Union has appealed it. If the Appellate Body were to
reverse the test—contrary to the wishes of both participants—and formulate its own test, the
European Union submits that the Panel's underlying factual findings and the uncontested facts about
the USDOD assistance instruments at issue would be more than sufficient to allow the Appellate
Body to complete the analysis under any possible test.

587European Union's appellee's submission, para. 165 (referring to Panel Report, paras. 7.1149
and 7.1024).
588European Union's appellee's submission, para. 165.
589European Union's appellee's submission, para. 166 (referring to United States' other appellant's
submission, paras. 109-113).
590European Union's appellee's submission, para. 166 (referring to Panel Report, para. 7.1152).
591European Union's appellee's submission, para. 166 (referring to Panel Report, para. 7.1166).
592European Union's appellee's submission, para. 167 (referring to United States' other appellant's
submission, paras. 111-113).
593European Union's appellee's submission, para. 168.
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(b) Benefit
(i) NASA
266. The European Union notes that the sole basis of the United States' appeal of the Panel's
finding of "benefit" is the Panel's alleged "erroneous finding, under Article 1.1(a)(1), that the NASA
R&D contracts were principally for the benefit and use of Boeing".
594 The European Union
understands the United States to "implicitly incorporat e{} by reference all the arguments that it has
raised in alleging errors under Article 1.1(a)(1) of the SCM Agreement".595 The European Union
asserts that the United States has failed to identify any errors in the Panel's evaluation of the existence
of financial contributions, either with respect to the application of Article 1.1(a)(1) of the
SCM Agreement or consistency with Article 11 of the DSU. Consequently, in view of the fact that the
United States' Article 1.1(b) appeal "is en tirely based on its Article 1.1(a)(1) appeal" 596, it is the
European Union's view that the United States' Article 1.1(b) appeal must likewise fail.
267. The European Union further asserts that the United States' appeal regarding the Panel's
finding that the value of the benefit to Boei ng from payments under the NASA R&D contracts was
$1.05 billion "lacks legal foundation".597 The European adduces two reasons for its assertion.
268. First, the European Union submits that this cl aim "is not properly within the scope of this
appeal" because nowhere in the United States' Notic e of Other Appeal does the United States identify
"any alleged errors by the Pa nel under Article 1.1(b) of the SCM Agreement in valuing the benefit to
Boeing from the NASA aeronautics R&D programmes, or reference any of the relevant paragraphs of
the Panel Report, as required by Rule 23(2)(c)(ii) of the Working Procedures for Appellate
Review".598 The European Union recalls that the United States alleged only one error under
Article 1.1(b) in its Notice of Other Appeal, namely, the Panel's finding that the NASA R&D
contracts conferred a benefit. The European Union notes that the Appellate Body has emphasized that
"due process requires that a Notice of Appeal place an appellee on notice of the issues raised on
appeal"
599, and that a Notice of Appeal "serve{s} to en sure that the appellee also receives notice,
albeit brief, of the 'nature of the appeal' and the 'allegations of errors' by the panel".600 It further notes,

594European Union's appellee's submission, para. 92 (referring to United States' other appellant's
submission, paras. 64 and 65).
595European Union's appellee's submission, para. 92.
596European Union's appellee's submission, para. 93.
597European Union's appellee's submission, para. 95.
598European Union's appellee's submission, para. 96 (referring to Panel Report, paras. 7.1055-7.1109).
600Appellate Body Report, EC – Bananas III (Article 21.5 – US) , para. 281 (quoting Appellate Body
Report, US – Countervailing Measures on Certain EC Products, para. 62).
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however, that the United States has provided " no notice whatsoever of this alleged {valuation}
error".
601
269. Second, the European Union contends that th e United States' claim is not properly brought
under Article 1.1(b) of the SCM Agreement. In this respect, the European Union submits that
Article 1.1(b) "contains no obligations pertaining to the quantification of the benefit" and thus the
Panel "could not have committed a ny errors under Article 1.1(b) in valuing the amount of the
subsidy".602 The European Union agrees with the Panel that "the question of whether a challenged
measure constitutes a subsidy within the meaning of Article 1 is distinct from the question of what
amount of the subsidy is properly allocated to Boeing's LCA division". 603 Moreover, in the
European Union's view, even if Article 1.1(b) cont ained obligations pertaining to the quantification of
the benefit, the United States' clai m is "an effort to reargue the facts", and merely amounts to "an
accusation that the Panel insufficiently weighed the evidence submitted by the United States"
regarding the amount that should be deducted from the $1.05 billion to obtain "what the United States
considers to be a more appropriate valuation of the payments" at issue. 604 The European Union
considers that such a claim "may be appropria te" under Article 11 of the DSU, "but not under
Article 1.1(b) of the SCM Agreement".605
270. The European Union further asserts that, even assuming arguendo that the United States'
claim is properly within the scope of this appeal and properly brought under Article 1.1(b) of the
SCM Agreement, "it would also lack merit on the substance". 606 The European Union agrees with the
United States that when a transaction is not part of the financial contribution it should not be counted
"in any precise quantification" 607 of the benefit conferred. However, the Panel "did not perform a
precise quantification of the benefit, because th ere was no obligation for the Panel to do so". 608 The
Panel, thus, properly recognized, in accordan ce with the Appellate Body's guidance in US – Upland
Cotton, that, "in a case brought under Part III of the SCM Agreement, a pane l is under no obligation
to 'quantify precisely the amount of the subsidy'".609

601European Union's appellee's submission, para. 97. (original emphasis)
602European Union's appellee's submission, para. 98.
603Panel Report, para. 7.35. (original emphasis)
604European Union's appellee's submission, para. 101.
605European Union's appellee's submission, para. 101.
606European Union's appellee's submission, para. 102.
607European Union's appellee's submission, para. 103.
608European Union's appellee's submission, para. 103.
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271. The European Union argues that the Panel, rath er than deriving a precise quantification of the
benefit, engaged in an exercise to estimate the amou nt of the subsidy to Boeing's LCA division. In
doing so, the Panel fully recognized the United States' arguments and evidence concerning the
$1.05 billion covering all contracts between Boei ng and the four NASA research centres, and the
$280 million needed to be deducted to arrive at the value of the payments for LCA-related research.
However, the Panel weighed the ev idence, determined that it had no adequate basis to reduce the
$1.05 billion figure to $775 million, and accordingly decided that $1.05 billion was the better estimate
of the amount of the subsidy.
610
272. The European Union contends that the Panel' s factual determination was based on adequate
reasoning, which the Appellate Body should not ove rturn. It asserts that there is "ample
explanation"611 in the Panel Report showing that the Pane l fully understood and took into account the
United States' argument, and how th e Panel found "no adequate basis" 612 for reducing the
$1.05 billion figure to $775 million. According to the European Union, the Panel recognized that the
United States' derivation of the $1.05 billion figure was an objective exercise based on the search in
the Federal Procurement Data Base
613 ("FPDS"/"FPDS-NG") 614, but it properly found that the
reduction from $1.05 billion to $775 million by s ubtracting $280 million in allegedly non-LCA
related contracts by NASA's aeronautics centres was a " subjective exercise based on the 'manual{}
review' by NASA personnel of the subject matter descriptions of each contract".615
273. The European Union therefore requests the Appe llate Body not to modify the Panel's finding
as to the value of the benefit to Boeing resulting from the NASA aeronautics R&D subsidies.

610European Union's appellee's submission, para. 104.
611European Union's appellee's submission, para. 105.
612European Union's appellee's submission, para. 106.
613For the years 2004 to 2006, the relevant database was the Federal Procurement Data Base – Next
Generation (FPDS-NG), which had superseded the Federal Procurement Data Base (FPDS). (Panel Report,
para. 7.1058)
614European Union's appellee's submission, para. 106 (referring to Panel Report, para. 7.1067).
615European Union's appellee's submission, para. 106 (referring to Panel Report, para. 7.1068).
(original emphasis)
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(ii) USDOD
274. The European Union submits that the Unite d States' claim that the Panel improperly
concluded that the USDOD's financial contributions provided to Boeing confer a benefit within the
meaning of Article 1.1(b) of the SCM Agreement is without merit. The European Union highlights
that the United States "does not appeal the Panel's analytical framework, namely, that 'if a Panel finds
that a financial contribution is economically irra tional, it may, absent evidence to the contrary,
conclude that the transaction confers a benefit'".
616 Rather, the United States argues only that the
Panel incorrectly characterized the nature of the USDOD assistance instru ments as "payment for
research principally for the benefit and use of Bo eing without some form of royalty or repayment" 617,
without taking into consideration that the research carried out by Boeing was also of benefit and use
to the USDOD and that Boeing was required to contribute company resources to the R&D project.
275. The European Union asserts that the Panel's characterization was correct, and that,
accordingly, the Panel's conclusion that a benefit exists based on this characterization was also
proper.618 The European Union notes that the United States presents its benefit argument assuming
arguendo that this financial contribution finding by the Panel is correct. The European Union further
maintains that "there is no evidence on the record suggesting that anything like royalties or repayment
was provided by Boeing in exchange for paymen ts and support provided by {US}DOD under its
aeronautics R&D assistance instruments".619
276. In this regard, the European Union points out that the United States has provided no
information whatsoever, neither on the actual re sults of the R&D funded by the USDOD assistance
instruments, nor on how the income generated from those results may translate into payments from
Boeing to the USDOD for the contributions made by the USDOD towards that R&D. In addition, the
European Union submits that "it is clear that ther e is no transfer of {US}DOD's R&D funding back to
the US Government, as there was, for example, duri ng the period of time when the US Government

616European Union's appellee's submission, para. 169 (quoting United States' other appellant's
submission, para. 121 (original emphasis)).
617European Union's appellee's submission, para. 169 (quoting United States' other appellant's
submission, para. 116).
618European Union's appellee's submission, para. 172 (referring to Panel Report, paras. 7.1183-7.1185).
619European Union's appellee's submission, para. 174.
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had in effect a policy of 'recoupment'".
620 The European Union further notes that this "recoupment"
policy was cancelled by the USDOD in June 1992 "precisely to move away from a market-based
approach".621 The European Union contends that neither of the elements that the United States
suggests that the Panel failed to take into account (t hat is, the costs contributed by Boeing towards the
R&D and the benefit obtained by the government from the R&D) are akin to "royalties" or
"repayment"622, because neither of these elements entails any payments by Boeing to the USDOD.
The European Union therefore argues that both the Pa nel's characterization of the transactions at issue
"as being principally for Boeing's benefit or use without any associated royalties or repayment", and
its conclusion that "these were economically irra tional transactions that conferred a benefit upon
Boeing", were not improper.
623
277. The European Union maintains that, even exp licitly taking into consideration the cost
contributions by Boeing and the benefits retained by the USDOD from the res earch, "the record still
supports the conclusion that a benefit exists under Article 1.1(b) of the SCM Agreement".624 T h e
European Union submits that there is enough evidence on the record to conclude that the transactions
at issue were economically irrational, and that such a conclusion "follows from two important

620European Union's appellee's submission, para. 176. The European Communities explained before
the Panel that, "{u}nder this {recoupment} policy, which lasted from 1967 to 1992, the US Government
required contractors to reimburse {US}DOD for nonrecurring costs when contractors made or intended to make
commercial sales using dual-use technologies that had been funded with {US}DOD investment."
(European Communities' first written submission to the Panel, para. 669 (footnote omitted))
The European Communities quoted the following document explaining the reasons behind the
recoupment policy:
The {USDOD} recoupment policies recognize that foreign licensed
production or purchase of a U.S. defense article should not be subsidized by
the U.S. government. These policies also recognize the potential for
crossover into development and production of civilian aircraft of benefits
that may result from government support of research and development
(R&D) on military items. It is precisely because of the USG's policy
opposing government support of specific companies that the USG instituted
procedures to recoup from commercial (non-USG) sales monies which
represents costs savings {sic} accruing to civilian production from USG
investment. One of the objectives in implementing this policy is to ensure
that civil aircraft companies remain commercially competitive based on
their own investment and technology.
(U.S. Government Response to the EC-Commissioned Report "U.S. Government Support of the U.S.
Commercial Aircraft Industry" (March 1992) (Panel Exhibit EC-413), p. 13 (emphasis added by the
European Communities))
621European Union's appellee's submission, para. 176 (referring to USDOD Rules and Regulations,
"Recoupment of Nonrecurring Costs on Sales of U.S. Items", United States Code of Federal Regulations ,
Title 58, section 16497 (29 March 1993) (Panel Exhibit EC-416)).
622European Union's appellee's submission, para. 177 (referring to United States' other appellant's
submission, paras. 118 and 119).
623European Union's appellee's submission, para. 178 (referring to Panel Report, paras. 7.1183-7.1185).
624European Union's appellee's submission, para. 179. (original emphasis)
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points".
625 First, the European Union recalls that, in its financial contribution analysis, the Panel
reached the factual conclusion that "the work Boeing performed under its aeronautics R&D 'assistance
instruments' with {US}DOD was principally for the benefit and use of Boeing itself" 626, and that "the
focus by the Panel on this 'core' term of the transa ction {did} not ignore other terms, such as the cost
contributions by Boeing and any benefits retained by {US}DOD". 627 Second, the European Union
notes that the United States highlights that most (but not all) USDOD R&D agreements involved cost
sharing where "{t}he provision on the private party' s contribution generally called for the government
and the private party to split costs evenly, alt hough some R&D agreements called for the government
to pay more than half". 628 The European Union further notes that, "in instances where there was no
cost sharing, it was the government that paid the full cost, with no contribution from Boeing". 629
Therefore, it is the European Union's contention that "the government always paid at least half of the
costs under any {US}DOD aeronautics R&D assistance instrument".630
278. In the European Union's view, the two points a bove support the existence of a benefit, even
explicitly taking into account the cost sharing and benefits retained by the USDOD. Indeed, the
European Union submits, "{w}hen the R&D perform ed under an instrument is for the principal
benefit of Boeing, the fact that the government paid for at least half … of that R&D does not change
the conclusion that a non-market benefit exists".631 In other words, if the evidence indicated that
Boeing obtained more than 50% of the benefit while paying also more than 50% of the costs, then
additional benchmark evidence may be required to est ablish the existence of a benefit. However,
where the evidence indicates that Boeing obtained more than 50% of the benefit (that is, the principal
benefit) while paying only 50% or less of the costs, the benefit question can be answered affirmatively
in the abstract.
279. For these reasons, the European Union asserts that the Panel did not err in concluding that the
USDOD aeronautics R&D assistance instruments conf erred a benefit on Boeing within the meaning
of Article 1.1(b) of the SCM Agreement, and maintains that the Panel's finding in this respect should
be upheld.

625European Union's appellee's submission, para. 179.
(underlining added by the European Union)
627European Union's appellee's submission, para. 180 (referring to Panel Report, para. 7.1183).
628European Union's appellee's submission, para. 181 (quoting United States' other appellant's
submission, para. 119). (underlining added by the European Union omitted)
629European Union's appellee's submission, para. 181 (referring to United States' other appellant's
submission, footnote 220 to para. 119). (underlining omitted)
630European Union's appellee's submission, para. 182. (original underlining; footnote omitted)
631European Union's appellee's submission, para. 183. (original italics; underlining omitted)
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280. The European Union submits that, contrary to what the United States argues, the Panel's
statement, in paragraph 7.1205 of the Panel Report, that it "{did} not consider it credible that less than
1 per cent of the $45 billion in aeronautics R&D f unding that {US}DOD provided to Boeing over the
period 1991-2005 had any potential relevance to LCA" , is supported by evidence and therefore fully
consistent with Article 11 of the DSU. The Europ ean Union asserts that the Panel's statement was of
no consequence to its "legal findings and conclusions"
632 and thus should not be subject to review by
the Appellate Body. 633 The European Union notes that the Panel did not estimate the value of the
USDOD RDT&E subsidies634; rather, when considering the magnit ude of the subsidies in its adverse
effects analysis, the Panel found that th ey amounted to "at least $2.6 billion". 635 This figure would
have been the same had the Panel accepted the Un ited States' argument that less than 1% of the
$45 billion in USDOD RDT&E funding to Boeing had any potential relevance to LCA. Even if such
a statement were reviewable on appeal, the European Union considers that "there is ample evidence
on the record"636 to support it. The European Union notes that the Panel offered three reasons why it
found the $308 million figure—argued by the United States to be the maximum amount of dual-use
USDOD funding to Boeing—to be not credible: (i) it excluded funding provided under military
aircraft RDT&E programmes; (ii) the United St ates failed to provide any evidence as regards the
maximum value of the USDOD dual-use contracts and agreements, like it did for NASA; and (iii) the
United States did not account for the value of access to USDOD facilities. 637 Moreover, in the
European Union's view, there is "m uch additional evidence on the record" 638 supporting the Panel's
conclusion, including: the detailed expert report by CRA International on which the European Union
based its estimate 639; the Panel's finding—not appealed under Article 11 of the DSU or otherwise—
that the amount of the subsidy to Boeing's LCA division would not be more than $1.2 billion 640; and
the Panel's factual finding—equally not appealed unde r Article 11 of the DSU or otherwise—that the
United States "has failed to substantiate its assertion".641

632Article 17.13 of the DSU provides: "The Appellate Body may uphold, modify or reverse the legal
findings and conclusions of the panel".
633The European Union notes that the Appellate Body has previously declined to review statements by
a panel that have no bearing on a panel's legal findings or conclusions. (European Union's appellee's submission,
footnote 360 to para. 186 (referring to Appellate Body Report, US – Wool Shirts and Blouses , p. 17, DSR
1997:I, 323, at 338))
634European Union's appellee's submission, para. 186 (referring to Panel Report, para. 7.1209).
636European Union's appellee's submission, para. 187.
637European Union's appellee's submission, para. 188 (referring to Panel Report, para. 7.1205).
638European Union's appellee's submission, para. 189.
639European Union's appellee's submission, para. 189 (referring to Panel Report, para. 7.1203).
640European Union's appellee's submission, para. 189 (referring to Panel Report, footnote 2800 to
para. 7.1209).
641European Union's appellee's submission, para. 189 (referring to Panel Report, para. 7.1159).
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281. In the light of this, it is the European Un ion's contention that the Panel satisfied the
requirements under Article 11 of the DSU. In particular, the Panel "considered the evidence
presented to it, weighed and assessed its credibility, and ensured that its comment had a proper basis
in that evidence".
642
2. Washington State B&O Tax Rate Reduction
(a) Financial contribution – Revenue foregone
282. The European Union requests the Appellate Body to reject the United States' claim that the
Panel erred in the interpretation and app lication of Article 1.1(a)(1)(ii) of the SCM Agreement in
finding that the Washington State B&O tax rate reduction for manufacturers of commercial airplanes
and components constitutes a financial contribution under that provision.
(i) Interpretation of Article 1.1(a)(1)(ii) of the SCM Agreement
283. The European Union argues that the Panel di d not misinterpret the legal standard under
Article 1.1(a)(1)(ii) of the SCM Agreement, and that there is nothing in the Panel's exposition that
conflicts with the Appella te Body's findings in US – FSC and US – FSC (Article 21.5 – EC) , or with
the European Union's or the United States' understa ndings of those findings. In referring to the
Panel's summary in respect of which the United Stat es charges legal error, th e European Union notes
that the Panel made clear "that a 'but for' test can be applied, not must be applied, where it is possible
to identify a general rule of taxation; and otherwise, legitimately comparable income should be
compared".643 The European Union thus argues that the Pa nel did not elevate the "but for" test to a
general rule but, rather, understood that such a test is applicable in certain situations in order to
effectuate a comparison of legitimately comparable income.
(ii) Application of Article 1.1(a)(1)(ii) of the SCM Agreement
284. The European Union also disagrees with the Unite d States' claim that the Panel erred in the
application of Article 1.1(a)(1)(ii) of the SCM Agreement. First, the European Union rejects the
United States' argument that the Panel erred in applyi ng a "but for" test in the present dispute. The
European Union considers that the Panel conducte d a lengthy examination of the Washington State
B&O tax system and concluded that, because "it is no t difficult to identify a general rule of taxation
and exceptions to it, the guidance provided by the Appe llate Body suggests that a 'but for' test can be

642European Union's appellee's submission, para. 190 (referring to Appellate Body Report, Brazil –
Retreaded Tyres, para. 185).
643European Union's appellee's submission, para. 214. (original emphasis)
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applied".
644 In the European Union's view, the Panel appropriately applied a "but for" test in the
present dispute and, in doing so, "compare{d} the fiscal treatment of legitimately comparable
income".645
285. Second, the European Union argues that the Pane l considered and properly rejected to use the
"range" of 36 B&O tax rates submitted by the Un ited States as the "defined, normative benchmark"
for purposes of establishing whether a financial contribution exists. 646 As the European Union
observes, the Panel correctly rejected the United St ates' "range" approach because it would mean that
the lowest B&O tax rate at any given point in time becomes the general rule for purposes of an
Article 1.1(a)(1)(ii) analysis. As the Panel stated, if some category of products is tax exempt, then
"every tax rate falls within th e range and it is never possible fo r a tax reduction to constitute a
financial contribution".647 Moreover, the European Union argues, the Panel correctly recognized that
the "range" is neither "defined" nor "normative". 648 The European Union adds that the United States
has never provided a "rational basis" 649 for treating tax categories as disparate as child care, meat or
soybean processing, or stevedoring as relevant or comparable to the production and sale of
commercial aircraft. The European Union consider s that, for these reasons, the Panel would have
erred had it followed the United States' approach of selecting the "range" of 36 B&O tax rates as the
defined, normative benchmark.
286. Third, the European Union contends that the Panel properly excluded from its analysis
consideration of pyramiding and the average effective B&O tax rate in Washington State. As the
European Union observes, the United States conceded that the average effective B&O tax rate is not a
normative benchmark. It would have been inappropriate for the Panel to take the average effective
B&O tax rate into account in its Article 1.1(a)(1)(ii) analysis for the same reasons it was inappropriate
for it to do so in respect of the "range" of 36 B&O tax rates. To do so would have resulted in "the
comparison of income that is not legitimately comparable".
650 Moreover, the United States offers no
evidence or argument to support the notion that combating pyramiding and bringing effective B&O
tax rates closer to the average effective B&O tax rate is any stated norm in Washington State tax law.
Instead, the United States refers only to a study that has never been associated with the B&O tax rate
reduction except in these proceedings. Similarly, the United States has been unable to offer any

645European Union's appellee's submission, para. 218 (quoting Panel Report, para. 7.119, in turn
quoting Appellate Body Report, US – FSC (Article 21.5 – EC), para. 91).
646European Union's appellee's submission, para. 221.
647Panel Report, footnote 1224 to para. 7.135.
648European Union's appellee's submission, para. 223 (referring to Panel Report, para. 7.136).
649European Union's appellee's submission, para. 226 (quoting Appellate Body Report, US – FSC
(Article 21.5 – EC), para. 90).
650European Union's appellee's submission, para. 230.
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"rational basis" for comparing the income earned by commercial aircraft manufacturers with that
earned by other activity categories identified in the study.
651 According to the European Union, taking
the average effective B&O tax rate into acc ount in this case would constitute error under
Article 1.1(a)(1)(ii).
287. The European Union requests that, should the Ap pellate Body consider that the legitimately
comparable income standard must be applied in this case without the use of a "but for" test, there is an
adequate basis in the Panel record to conclude that the House Bill 2294 B&O tax rate reduction
constitutes the foregoing of government reve nue otherwise due within the meaning of
Article 1.1(a)(1)(ii) of the SCM Agreement. In the European Union's view, the Panel record
demonstrates that income generated by Boeing "is legitimately comparable to income generated from
manufacturing, wholesaling and retailing in general, but not legitimately comparable to any of the
other categories of income (whether on an indivi dual basis or as an average) identified by the
United States".652
(b) Specificity – Article 2.1(a) of the SCM Agreement
288. According to the European Union, the United States' argument that the Panel erred by
analyzing only the B&O tax rate reduction for aircra ft manufacturing, instead of the entirety of the
B&O tax rate exceptions under Washington State tax law, "has no merit". 653 The European Union
submits that the Panel needed to examine only House Bill 2294 to arrive at a finding of de jure
specificity. Nevertheless, the Panel proceeded to evaluate the B&O taxation system as a whole. In
doing so, the Panel "made a finding of fact that the multiple B&O tax rate exceptions do not constitute
a single 'subsidy' programme, but rather may constitu te separate and distinct measures, because there
was no evidence to justify considering all of the B& O tax rate exceptions together as a single measure
for purposes of the Article 2.1(a) analysis". 654 Indeed, the Panel noted on several occasions the lack
of evidence submitted by the United States that woul d have allowed the Panel to reach the conclusion
that the multiple B&O tax rate exceptions in Washington State constitute a single programme. On
this basis, the European Union argues that the Panel properly concluded that the B&O tax rate
reduction granted to the aerospace industry under House Bill 2294 is a subsidy that is specific within
the meaning of Article 2.1(a) of the SCM Agreement.

651European Union's appellee's submission, para. 232 (referring to Washington State Tax Structure
Study Committee Report, Tax Alternatives for Washington State: A Report to the Legislature , Vol. 2
– Appendices (November 2002) (Panel Exhibit US-183), p. 41, which refers to categories such as
"CONSTRUCTION", "MOVIES/AMUSE/REC", "MINING/QUARRY", "AG FOR FISHING", and "SVC
AUTO REPAIR").
652European Union's appellee's submission, para. 233. (original emphasis)
653European Union's appellee's submission, para. 235.
654European Union's appellee's submission, para. 237 (referring to Panel Report, paras. 7.200-7.205).
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289. The European Union asserts that the United Stat es now seeks to overturn the Panel's factual
determination that the multiple B&O tax rate ex ceptions in Washington State do not constitute a
single subsidy programme. Such a factual dete rmination is not subject to review by the
Appellate Body. Nor can the United States appropria tely ask the Appellate Body to re-examine how
the Panel weighed the evidence. The Panel examin ed the evidence provided by the United States and
found that it was "vague" and even "self-contradictory".
655 Thus, in the absence of a claim under
Article 11 of the DSU, the Appellate Body should reject the United States' appeal.
290. Even if the Appellate Body could review this determination, the European Union submits that
the United States has pointed to no evidence in support of its argument, and fails to show any error in
the Panel's analysis. The European Union observes that the Appellate Body is being asked to find that
the multiple B&O tax rate exceptions are part of the same subsidy programme based solely on the fact
that multiple B&O tax rates appeared in the Washin gton State tax code as it existed at the time of the
Panel's specificity analysis. The European Union argues, however, that "{t}he simple fact that the
unified Washington State tax code listed multiple B& O tax rate exceptions at the time of the Panel's
analysis is not sufficient evidence to demonstrate that those multiple tax breaks should in fact be
considered a single subsidy programme".656
291. The European Union considers that the Pane l rightly called for evidence of a connection
among the multiple tax breaks in order to determin e that they were part of a common subsidy
programme, and, in particular, evidence as to the timing of the different tax breaks, their purposes,
and their levels. The European Union notes the United States' position that evidence regarding factors
such as timing or purpose are not relevant to determin ing whether there is a single subsidy or multiple
subsidy programmes for purposes of a specificity analysis under Article 2.1(a). As the Panel
observed, the United States, under its own domestic law, considers similar factors in determining
whether two or more separate subsidy programmes can be treated as one programme for specificity
purposes. The European Union thus considers it "disingenuous" 657 for the United States to argue that
such factors are not relevant to the specificity analysis under Article 2.1(a), and adds that the
United States has failed to demonstrate that the multiple B&O tax rate exceptions in the Washington
State tax code should be considered a single subsidy programme.

655European Union's appellee's submission, para. 239 (referring to Panel Report, paras. 7.204
and 7.205).
656European Union's appellee's submission, para. 240.
657European Union's appellee's submission, para. 243.
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292. The European Union notes that, at the oral hearing, the United States was able to point to only
one commonality among the various reduced tax rat es (relative to the manufacturing, wholesaling, or
retailing rates). This single commonality was that, even though those rates were initially enacted in
separate pieces of legislation, they were all summarized in the same legislative act—an act that simply
repeated all of the various existing tax rates wh ile amending only those tax rates pertaining to the
manufacturing, wholesaling, or retailing of commercial aircraft and components.
658 The
European Union responds that, if this were all that was required to demonstrate that multiple measures
enacted at different times and for different reasons constitute a single subsid y or subsidy programme
for purposes of specificity, it would become very easy for a Member to avoid a specificity finding.
For these reasons, the European Uni on requests the Appellate Body to uphold the Panel's finding that
the Washington State B&O tax rate reduction for airc raft manufacturing, wholesaling, and retailing is
a specific subsidy within the meaning of Article 2.1(a) of the SCM Agreement.
3. City of Wichita Industrial Revenue Bonds (IRBs) – Specificity
293. The European Union argues that the United St ates has failed to establish any error with
respect to the baseline selected by the Panel for its disproportionality analysis. In the
European Union's view, the Panel's baseline was deri ved from a careful reading of Article 2.1 of the
SCM Agreement and is consistent with the principles of treaty interpretation. The European Union
states that, although Article 2.1(c) does not identify explicitly the baseline against which a comparison
must be made to determine whether the amounts of subsidy are "disproportionately large", guidance is
provided in the chapeau of Article 2.1, and the thir d sentence of Article 2.1(c), both of which refer to
"within the jurisdiction of the granting authority". 659 This supports the view that the
disproportionality analysis focuses on "the territory over which the granting authority can extend or
exercise its powers".660
294. The European Union considers that the Pane l's conclusions are not undermined by the
criticisms of the United States. Even though the United States argues that the Panel failed to take
several circumstances into account, the United States offered no evidence suggesting that these
circumstances apply to the evaluation of the IRBs or the Wichita manufacturing sector. The Panel
correctly noted that the United States simply failed to "provide{} a convincing rebuttal of {the
European Communities'} prima facie case" or to "p resent any statistics to indicate that Boeing and
Spirit do indeed account for approximately 69 per cent of the economic activity in Wichita and that an

658European Union's additional memorandum following the first session of the oral hearing, para. 48.
659European Union's appellee's submission, paras. 272 and 273.
660European Union's appellee's submission, para. 274.
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examination of the employment levels of Bo eing and Spirit is misleading in this regard".
661 T h e
European Union adds that "{t}he mere fact that there may be situations in which a baseline or
economic indicator, other than those used by the Panel here, would be mo re appropriate does not
undermine the utility of that baseline or the em ployment indicator on the facts presented in this
dispute".662
295. The European Union agrees with the Panel's understanding of the term "disproportionately
large" as meaning a " significant disparity between the two relevant ratios". 663 The European Union
considers that this interpretation conforms to the text, context, and the object and purpose of
Article 2.1 of the SCM Agreement. The Panel correctly understood that "the disparity between the
relevant ratios must be significant, important, and of enough relevance so as to conclude that the
subsidy is not sufficiently broadly available throughout an economy and is capable of causing
distortions and inefficiencies in international trade". 664 The European Union moreover considers that
a panel cannot be said to be adding to or dimini shing the rights and obligations of Members in
violation of Article 3.2 of the DSU if it engage s in a correct interpretation and application of
Article 2.1(c).
296. The European Union further contends that the United States' two alternative baselines provide
no basis for reversal of the Panel's findings. Before the Panel, the United States advocated a baseline
based on the ratio of Boeing's and Spirit's employ ment levels in relation to the aggregated
employment levels of the actual group of recipients of the alleged subsidy. The European Union
notes the Panel's conclusion that such a baseline was not supported by the text or context of Article 2,
and was difficult to reconcile with this provisi on's purpose of determining whether a subsidy is
sufficiently broadly available thro ughout an economy so as not to benefit only "certain enterprises".
The United States "offers no defence to this powerful critique by the Panel". 665 Moreover, although
the United States criticized the Panel for disregarding the extent of diversification of economic
activities as required by the third sentence of Article 2.1(c), the European Union considers that the
baseline proposed by the United Stat es does just that, "as it is self-contained within the realm of the
particular subsidy programme at issue".666

661Panel Report, para. 7.769.
662European Union's appellee's submission, para. 277. (original emphasis)
663Panel Report, para. 7.768. (original emphasis)
664European Union's appellee's submission, para. 279. (footnote omitted)
665European Union's appellee's submission, para. 284.
666European Union's appellee's submission, para. 284.
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297. The European Union further considers that th e merits of the United States' second proposed
baseline, which permits an exam ination of proportionality only among potential recipients of a
subsidy, does not implicate the propriety of th e baseline actually adopte d by the Panel. The
European Union observes that this baseline was proposed by Australia before the Panel, and notes
that, given the absence of evidence on the record that would allow the Panel to evaluate
disproportionality on that basis, and give n the legal and evidentiary support for the
European Communities' proposed baseline, the Panel opted for the European Communities'
approach.
667 The Panel further considered that, given that the pool of eligibility for the IRBs is very
wide, employing the Australian approach was unlikel y to alter its analysis. In this light, the
United States has not shown any legal error by th e Panel. The European Union also rejects the
United States' argument about the usef ulness of the panel's reasoning in EC and certain member
States – Large Civil Aircraft , because the panel in that case was addressing whether the subsidy
amounts provided to an enterprise or industry ought to be measured against the amounts provided to
other subsidy recipients, and was not addressing the nature of the benchmark at issue as in this appeal.
298. With respect to the United States' contention th at the Panel did not account for the extent of
diversification of economic activities in the City of Wichita, the European Union argues that the
Panel's methodology incorporates the element of dive rsification, and that the Panel considered the
United States' evidence that Wichita was focused on aircraft production. The European Union also
notes that the Panel concluded that the United Stat es had not provided a c onvincing rebuttal of the
European Communities' prima facie case, because the United States argued at a relatively high level
of generality that the degree of diversification in the Wichita economy is low, and otherwise failed to
present any statistics to indicate that Boeing and Sp irit do indeed account for approximately 69% of
the economic activity in Wichita and that an exam ination of the employment levels of Boeing and
Spirit is misleading. The United States disagrees with these conclusions, "but has offered no
reasonable basis for second-guessing them". 668 The European Union mainta ins that, to the extent the
United States objects to the manner in which the Panel weighed the evidence, this could only be
addressed as a challenge under Article 11 of the DSU, something which the United States has not
done in respect of this claim.
299. The European Union notes that, at the oral hearing, the United States suggested that the
appropriate benchmark for evaluati on of disproportionality should be th e eligible subsidy recipients
who actually applied for a subsidy. The European Union asser ts that such benchmark would put an

667European Union's appellee's submission, para. 285 (referring to Panel Report, paras. 7.767
and 7.768).
668European Union's appellee's submission, para. 295.
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"insurmountable burden"
669 on a complainant. It would require the complainant to submit a type of
data that would not generally be publicly availabl e (that is, the actual applications), "which is
particularly troubling given the {United States'} position on a Member's ability to block the initiation
of Annex V proceedings".670
4. Adverse Effects
(a) Technology effects of the aeronautics R&D subsidies
300. The European Union submits that the United St ates' appeal is, "in large part, a disguised
Article 11 appeal".671 It contends that the United States' grounds of appeal "purport to identify errors
of law" under Articles 5(c) and 6.3 of the SCM Agreement; however, by "simply labelling" its claims
as referring to the application of the law to the f acts, the United States fails to put them "within the
remit" of Articles 5(c) and 6.3. 672 According to the European Union, a close review of the
United States' appeal reveals nothing more than the United States' disagreement with the Panel's
weighing of the evidence.
301. In the European Union's view, the substance of the United States' appeal is "effectively
re-arguing factual findings" 673 by the Panel and, therefore, should be brought under Article 11 of the
DSU. The European Union stresses that the United States has failed, in this regard, to "explicitly
articulate{}"674 an Article 11 claim in its Notice of Other Appeal or in its other appellant's submission,
and thus the Appellate Body should reject the Un ited States' appeal "on the basis of that failure
alone".675
302. If, nonetheless, "the Appellate Body were to entertain that appeal", the European Union
recalls that the Appellate Body in EC and certain member States – Large Civil Aircraft reiterated that
panels "are not required to accord to factual eviden ce of the parties the same meaning and weight as
do the parties". 676 Consequently, since the United States has not demonstrated that the Panel abused
its discretion as the trier of facts, the European Union requests the Appellate Body to reject the
United States' appeal.

669European Union's additional memorandum following the first session of the oral hearing, para. 51.
670European Union's additional memorandum following the first session of the oral hearing, para. 51.
671European Union's appellee's submission, p. 144, heading III.A.2.
672European Union's appellee's submission, para. 324.
673European Union's appellee's submission, para. 330.
674European Union's appellee's submission, para. 332 (quoting Appellate Body Report, Mexico –
Anti-Dumping Measures on Rice, para. 274).
675European Union's appellee's submission, para. 332.
676European Union's appellee's submission, para. 334 (quoting Appellate Body Report, EC and certain
member States – Large Civil Aircraft , para. 1317, in turn quoting Appellate Body Report, Australia – Salmon ,
para. 267). (emphasis added by the European Union omitted)
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(i) The Panel's finding that the aeronautics R&D subsidies
improved Boeing's product offering for the 787
The Panel's finding that there is a genuine and substantial link between the aeronautics R&D
subsidies and the 787
303. The European Union submits that the United States' first group of claims is "baseless"
677, and
built on "isolated" and "out of cont ext" statements made by the Panel. 678 In the European Union's
view, a "careful review" 679 of the Panel's findings reveals no legal error in the Panel's conclusion that
"the aeronautics R&D subsidies contributed in a genuine and substantial way to Boeing's development
of technologies for the 787".680
304. The European Union first addresses the United States' argument that "{t}he Panel relied on a
subset of evidence about three of the eight NASA pr ograms, and extrapolated its conclusions to the
other programs". 681 The European Union asserts, in this rega rd, that the Panel neither erred in the
application of law, nor exceeded the bound of its discretion as the trier of fact. Rather, in the
European Union's view, the Panel recognized th at eight NASA and two USDOD programmes each
contributed, "albeit to different degrees" 682, to the development of technologies used on the 787, and
thus caused adverse effects. The Panel "specifically discussed" and "objectively assessed" each of the
programmes " individually in its analysis" 683, and eventually found that the aeronautics R&D
programmes "taken together contributed to the technologies applied on the 787".684
305. The European Union explains that the Panel "went into considerable detail" when assessing
the effects of the aeronautics R&D subsidies, and based its findings on a "careful weighing of the
evidence" submitted by both parties. 685 The Panel analyzed the structure and design of each of the
eight NASA aeronautics programmes 686 and the two USDOD programmes at issue. 687 Likewise, the

677European Union's appellee's submission, p. 149, heading III.A.3.
678European Union's appellee's submission, para. 342.
679European Union's appellee's submission, para. 342.
680Panel Report, para. 7.1773.
681United States' other appellant's submission, para. 203.
682Panel Report, para. 7.1702.
683European Union's appellee's submission, para. 348 (referring to Panel Report, paras. 7.1709-7.1740).
(original emphasis)
684European Union's appellee's submission, para. 348. (original underlining)
685European Union's appellee's submission, para. 349 (referring to Panel Report, Appendix VII.F.1 –
Parties' arguments regarding the links between the U.S. Government funded R&D and the specific technologies
applied to the 787, p. 729).
686European Union's appellee's submission, para. 350 (referring to Panel Report, paras. 7.1709-7.1737).
687European Union's appellee's submission, para. 350 (referring to Panel Report, paras. 7.1738-7.1740).
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Panel addressed the operation of the aeronautics R&D subsidies, "taking particular account of the
conditions of competition in the LCA industry".
688
306. The European Union recalls that, based on the evidence on the record, the Panel rejected the
United States' argument that the "NASA R&D subsidi es were directed to general aeronautics research
or to research of incidental importance to the development of a product" 689, and found that the
ManTech and DUS&T programmes had the explicit objective of "developing 'dual use' R&D".690 The
Panel further found that the aeronautics R&D s ubsidies "complemented Boeing's internal product
development efforts"691 and had a role "in reducing Boeing's R&D risk". 692 The European Union also
notes the Panel's finding that the effects of the aeronautics R&D subsidies cannot be assessed "based
on the face value of the financial contributions involved, which amount{s} to at least $2.6 billion".693
The Panel found, instead, that the aeronautics R&D subsidies "multiply the benefits of any given
expenditure".694
307. In addition, the European Union observes that the Panel "painstakingly" summarized, in a
27-page appendix to its Report 695, evidence submitted by both parties on the relationship between
NASA/USDOD measures and Boeing's development of 787 technologies. In the European Union's
view, rather than "extrapolat{ing}"696 its findings on the links between the ACT, AST, and R&T Base
programmes and the 787 to the other aeronautics R& D programmes, the Pane l addressed concrete
evidence of technology spin-offs from the other five NASA programmes and from the
two USDOD programmes.
697 In accordance with Article 11 of the DSU, the Panel was not required to
refer in its Report to all evidence and arguments submitted by the parties.698
308. The European Union then turns to "r espond{} to each of the factual assertions" 699 raised on
appeal by the United States. It first rejects the United States' argument that "{m}uch of the
NASA research at issue … was not in the causal pa thway of the technologies the Panel considered

688European Union's appellee's submission, para. 351 (referring to Panel Report, paras. 7.1741 7.1773).
689Panel Report, para. 7.1742.
690Panel Report, para. 7.1701.
691Panel Report, para. 7.1746.
692Panel Report, para. 7.1747.
693European Union's appellee's submission, para. 355 (referring to Panel Report, para. 7.1433).
(original emphasis)
694European Union's appellee's submission, para. 355.
695European Union's appellee's submission, para. 360 (referring to Panel Report, Appendix VII.F.1.D,
p. 740).
696European Union's appellee's submission, para. 362.
697European Union's appellee's submission, paras. 363 and 364.
698European Union's appellee's submission, para. 365 (referring to Appellate Body Report, Brazil –
Retreated Tyres, para. 202).
699European Union's appellee's submission, para. 367.
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most relevant to the 787".
700 In this respect, the European Uni on notes that it had demonstrated that
technologies and design solutions found on the 787 "are rarely 1:1 copies of developments undertaken
in one research programme". 701 Rather, Boeing "chose among the solutions which were best suited"
to the specific requirements of the 787 through "c herry-picking" from decades of government-funded
R&D.702 Since the Panel "properly" framed the question under Articles 5(c) and 6.3 of the
SCM Agreement as being "whether the subsidies contributed" to the 787 technologies, and not
"whether there was a 1:1 identity" between them, th e European Union requests the Appellate Body to
reject the United States' challenge of the Panel's findings.703
309. The European Union further submits that the United States' assertions about NASA research
being at a "far lower level … than necess ary for commercial application on the 787" 704 does not
invalidate the Panel's findings of a causal link. Th e European Union contends that the Panel's alleged
factual error in reading the evidence related to TR Ls "does not rise to a level that would alter the
Panel's findings". 705 First, even the revised numbers s how that NASA R&D subsidies (focused on
TRL1 through TRL 6) provided Boeing with a "s ignificant time{} advantage of several years in
developing the 787". 706 Second, the "reduction in risk" 707 that the subsidies provided to Boeing
continues to be important. And third, the timefram es associated with the TRLs are "merely average
development times for a broad rang e of 'airframe' technologies". 708 The European Union thus
contends that, "even if the numerical finding at i ssue were in error", the Panel's ultimate conclusion
"remains fully supported".709
310. With respect to the United States' argument that, compared to Boeing's own R&D spending,
the magnitude of the United States' aeronautics R&D subsidies is "too small to create a genuine and
substantial relationship of cause and effect with the technologies used on the 787" 710, the
European Union notes that the Panel properly recognized that these kinds of subsidies are "intended to

700United States' other appellant's submission, p. 90, subheading VI.B.1.a.
701European Union's appellee's submission, para. 373 (referring to Joint Declaration by Dominik Wacht
and Tim Sommer (2007) (Panel Exhibit EC-1336) (HSBI/BCI)).
702European Union's appellee's submission, para. 373 (referring to Joint Declaration by Dominik Wacht
and Tim Sommer (2007) (Panel Exhibit EC-1336) (HSBI/BCI)).
703European Union's appellee's submission, para. 377.
704European Union's appellee's submission, para. 379 (referring to United States' other appellant's
submission, paras. 229-235).
705European Union's appellee's submission, p. 171, subheading III.A.3.a.iv.
706European Union's appellee's submission, para. 385.
707European Union's appellee's submission, para. 386.
708European Union's appellee's submission, para. 387 (referring to Panel Report, footnote 3668 to
para. 7.1748).
709European Union's appellee's submission, para. 388.
710European Union's appellee's submission, para. 389 (quoting United States' other appellant's
submission, p. 102, subheading VI.B.1.f).
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multiply the benefit from a given expenditure".
711 The European Union further notes that the Panel
"was not required to attach particular significance to the amount of the financial contribution in
comparison to other expenditure".712
311. The European Union recalls the United States' ch allenge, under Article 11 of the DSU, of the
Panel's finding that the aeronautics R&D subsidi es enabled Boeing to meet the challenges of
integrating technologies from a wide variety of suppliers. 713 The European Union submits that the
United States' argument "fails to recognise that several … contracts were precisely focused on making
Boeing a better integrator" 714 and "overlooks the importance of the knowledge and experience that
Boeing obtained pursuant to the aeronautics R&D subsidies". 715 Simply because the Panel accorded
the evidence a different weight than does the Unite d States does not mean that the Panel failed to
conduct an objective assessment under Article 11 of the DSU. The European Union therefore
requests the Appellate Body to reject the United States' appeal in this respect.
312. Lastly, the European Union agrees with th e Panel that dissemination of NASA research
results is limited in view of restrictions that have the purpose of benefiting the United States'
LCA manufacturers.716 The technical papers published by NASA have "little value" 717 because they
do not contain "critical research results" 718 and are "general and ambiguous". 719 In addition, such
reports are often "subject to limited access ri ghts" and are therefore "published late". 720 The
European Union also notes that Boeing generally hol ds the patents to the developed technologies and

(underlining added by the European Union)
712European Union's appellee's submission, para. 394.
713European Union's appellee's submission, para. 396 (referring to United States' other appellant's
submission, paras. 214 and 238-249).
714European Union's appellee's submission, para. 397.
715European Union's appellee's submission, para. 398 (quoting Panel Report, para. 7.1772). The
European Union stresses, in this respect, the Panel's fi nding that "{t}he critical question in developing and
building LCA is not how to get the different technologies and design and manufacturing tools. The critical
question is how to use them." (Panel Report, para. 7.1772 (original emphasis))
716European Union's appellee's submission, para. 402 (referring to Panel Report, para. 7.1771 and
footnote 3699 thereto).
717European Union's appellee's submission, para. 404.
718European Union's appellee's submission, para. 404 (referring to Declaration by Ray Kingcombe
(9 November 2007) (Panel Exhibit EC-1177); and Statement by Patrick Gavin et al. (8 November 2007) (Panel
Exhibit EC-1175 (HSBI/BCI))). (emphasis omitted)
719European Union's appellee's submission, para. 404 (referring to Statement by Patrick Gavin et al.
(8 November 2007) (Panel Exhibit EC-1175 (HSBI/BCI))).
720European Union's appellee's submission, para. 404 (referring to European Communities' first written
submission to the Panel, Annex C – Linking of US Aeronautics Subsidies to the 787, paras. 122-124
and 135-151).
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processes, and hence the developed technology is "not available for use by Airbus", or "available only
at a fee".
721
The Panel's findings regarding the counterfactual analysis
313. The European Union contends that the Panel' s counterfactual analysis was "neither of a
'cursory' nature nor 'insufficien{t}'". 722 On the contrary, the Panel's entire analysis demonstrates, in
the European Union's view, that the Panel properl y completed the first step of its counterfactual
analysis "of the effects of the subsidies on Boeing's pricing and product offerings" before addressing
their effects on "Airbus' prices and sales".723
314. Turning to the specific arguments presented by the United States, the European Union notes,
first, that the United Stat es "points to no evidence" 724 substantiating the allegation that Boeing knew
what research needed to be done. The Panel prop erly found that "fundamental research constitutes
high-risk investments that private firms are reluctant to incur".725 Based on the evidence before it, the
Panel concluded that the aeronautics R&D subsidi es are "particularly valuable" to Boeing because
they contribute to research that the company wo uld not otherwise undertake, "even if it had the
financial resources to do so".726
315. The European Union also rejects the United States' assertion that Boeing could have
conducted the research using its own funds. It notes that the Panel found that the issue is not whether
Boeing "could have funded the research", but whether "it would have done so "727 in the light of "the
large disincentives for private sector investment in long term, high risk aeronautical {R&D}". 728
Regarding the United States' argument that th e distance from the final operational technology
diminishes the value of the aeronautics R&D subsidies, the European Union notes that "it is precisely
this distance" that made the research too costly a nd risky for Boeing to undertake by itself, and that
made the NASA and USDOD subsidies "more valuable".729

721European Union's appellee's submission, para. 404 (referring to European Communities' first written
submission to the Panel, Annex C – Linking of US Aeronautics Subsidies to the 787, paras. 122-134).
722European Union's appellee's submission, para. 414 (quoting United States' other appellant's
submission, paras. 258 and 215).
723European Union's appellee's submission, para. 414 (quoting Panel Report, para. 7.1660 (original
emphasis)).
724European Union's appellee's submission, para. 419 (referring to United States' other appellant's
submission, para. 264).
725European Union's appellee's submission, para. 420.
726European Union's appellee's submission, para. 422.
727European Union's appellee's submission, para. 424. (original emphases)
729European Union's appellee's submission, para. 426 (referring to United States' other appellant's
submission, para. 202).
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316. At the oral hearing, the European Union noted that Article 6.3 of the SCM Agreement requires
a panel to find a genuine and subs tantial relationship of cause and e ffect between the subsidy and the
market phenomenon in question. The Panel need not have concluded that, absent the subsidies, the
world would be in a particular defined alternative st ate. It was sufficient for the Panel to find that,
absent the subsidies, the 787 would be a different competitor, either with fewer attractive features than
actually found on the 787, or with identical featur es but launched at a later time. The Panel properly
based its counterfactual analysis on a qualitative assessment and properly explained the consequences
of its findings that the United States' aeronautics R&D subsidies contributed to the launch of the
technologically advanced 787 in 2004, in turn causing adverse effects to the European Communities.
317. The European Union further emphasized that th e Panel posed the correct counterfactual, and
properly reached the conclusion that, despite havi ng the incentive to launch a product like the 787,
and the financial resources to do so, Boeing would not have been in the sa me position in terms of
technological knowledge, experience, and confidence to launch the 787 in 2004 but for the effects of
the United States' aeronautics R&D subsidies. In making such a finding, the Panel carefully weighed
and considered the non-attribution factors raised by the United States, but eventually found that they
did not attenuate the genuine and substantial relationship the Panel had identified.
318. The European Union therefore asserts that "the extensive factual findings" support the Panel's
counterfactual analysis and conclusion that, "absent the aeronautics R&D subsidies, Boeing would not
have launched the 787 as and when it did in 2004".
730
(ii) The Panel's finding with respect to the effects of the subsidies
on Airbus' prices and sales
319. The European Union contends that the United States' assertion that the Panel double-counted
each 787 sale as two lost sales for Airbus "is devoid of any basis in the Panel's findings". 731 T h e
European Union explains that it never argued that a single sales campaign, in which both the A330
and Original A350 were offered, should count as two lost sales. 732 The Panel simply recognized that
in several of the challenged sales campaigns Airbus "offered the airline customer a mix of A330s and
Original A350s"733, and therefore lost sales of a number of both of these aircraft.

730European Union's appellee's submission, para. 428.
731European Union's appellee's submission, para. 442.
732European Union's appellee's submission, para. 443 (referring to European Communities' first written
submission to the Panel, Annex D – 787 Campaign Annex (HSBI), paras. 7-14 and 20-29, and table at para. 77).
733European Union's appellee's submission, para. 444.
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320. Furthermore, the European Union contends that the Panel "considered" and "properly
rejected" non-attribution factors.
734 The fact that the Panel found that in six of the ten challenged
sales campaigns non-attribution factors "pla yed a significant part in the Boeing sale" 735 confirms
"beyond doubt"736 that the Panel took those other factors into account. In the European Union's view,
the United States' challenge is a "challenge to the Panel's weighing of the evidence" 737, which the
United States failed properly to raise under Article 11 of the DSU.
321. The European Union additionally rejects the Un ited States' assertion that the Panel erred in
finding a threat of displacement/impedance of Airbus 200-300 seat LCA in Ethiopia, Kenya, and
Iceland because it "erroneously declined to assess whether these countries constituted 'third country
markets' within the meaning of Article 6.3(b)".
738 The European Union notes that the United States
does not challenge the Panel's finding of a threat of displacement/impedance in Australia.739
322. The European Union recalls that, in EC certain member States – Large Civil Aircraft , the
Appellate Body stated that the term "market" refers to both a geographi cal market and a product
market.740 Because Article 6.3(b) is limited in its scope of application to "third country market{s}",
there can only be discussion over "the relevant product market within third country markets". 741
However, the European Union notes that the Panel "correctly stated" that "there is no disagreement by
the Parties over the relevant product markets".742 The European Union therefore submits that, given
that neither the relevant product markets nor the relevant geographical markets (namely, Ethiopia,
Kenya, and Iceland) were disputed, the Panel was co rrect in concluding that it was "not required to
consider"743 whether the European Communities had est ablished the existence of third-country
markets for the purposes of its displacement and impedance arguments.
323. The European Union further submits that, "even if the Panel was under an obligation to make
findings on the extent of the geographic market within a third country, quod non "744, the Panel's
finding is still correct. The Panel found, with the e xplicit agreement of both parties, that there existed

734European Union's appellee's submission, para. 446.
735Panel Report, para. 7.1786.
736European Union's appellee's submission, para. 447.
737European Union's appellee's submission, para. 447.
738United States' other appellant's submission, paras. 295 and 296.
739European Union's appellee's submission, para. 462 (referring to United States' other appellant's
submission, para. 295).
740European Union's appellee's submission, para. 464 (referring to Appellate Body Report, EC and
certain member States – Large Civil Aircraft, paras. 1117-1123).
741European Union's appellee's submission, para. 464. (original emphasis)
742European Union's appellee's submission, para. 464 (referring to Panel Report, para. 7.1670).
(original emphasis)
743Panel Report, para. 7.1674.
744European Union's appellee's submission, para. 465.
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a world market for "wide-body aircraft with a capacity of approximatel y 200 to 300 passengers".
745
The European Union therefore notes that, factually , there could not be multiple geographic markets
within each third country, since "{a} wo rld market encompasses the territory of all third countries
where there is any LCA competition".746
324. The European Union submits that the Panel also properly found significant price suppression
in the world market for 200-300 seat LCA. 747 It asserts that an examination of the evidence as a
whole demonstrates that "there is a direct correlation between the 787 launch and the drop in A330
prices".748 In the European Union's view, the Unite d States attempts to reargue the facts "by
artificially analysing annual data points, rather than the clear trends over time". 749 However, even
accepting the United States' annual data point comparison, the United States' argument fails.
325. The European Union argues that the "level of detailed pricing information" 750 the
United States requests for the Original A350 and the A350XWB is not required in order to find price
suppression for the 200-300 seat LCA market. The Panel based its finding on "detailed pricing
information for the A330" and had "all necessary info rmation" to assess the impact of the 787 launch
on A330 prices.
751 Although elaborated information on pr ices for the Original A350 and A350XWB
was "much less relevant" 752, the European Union also presented some pricing information for the
Original A350.
326. In sum, the European Union rejects the three grounds of appeal presented by the United States
concerning the effects of the aeronautics R&D subsidies, and submits that: (i) the alleged errors in the
Panel's findings linking the aeronautics R&D subsid ies with technologies applied on the 787 "do not
exist"753; (ii) Boeing could not have conducted the same NASA-supported R&D with its own
funds754; and (iii) the Panel properly found that the effect of the aeronauti cs R&D subsidies causes
serious prejudice within the meaning of Articles 5(c) and 6.3 of the SCM Agreement in the 200-300
seat LCA market.755

745Panel Report, para. 7.1669.
746European Union's appellee's submission, para. 465. (original emphasis)
747European Union's appellee's submission, p. 203, subheading III.A.3.c.v.
748European Union's appellee's submission, para. 468. (original emphasis)
749European Union's appellee's submission, para. 469 (referring to United States' other appellant's
submission, para. 302).
750European Union's appellee's submission, para. 471 (referring to United States' other appellant's
submission, paras. 304 and 309-313).
751European Union's appellee's submission, para. 479.
752European Union's appellee's submission, para. 479.
753European Union's appellee's submission, para. 320.
754European Union's appellee's submission, para. 321.
755European Union's appellee's submission, para. 322.
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(b) Price effects of the tied tax subsidies
(i) The Panel's counterfactual analysis
327. The European Union submits that the United Stat es' arguments that the Panel's counterfactual
analysis failed to address whether Boeing's prices w ould have been higher in the absence of the tied
tax subsidies are without merit for three reasons. Fi rst, contrary to the United States' allegations, the
Panel engaged in a comprehensive c ounterfactual assessment of the eff ects of the tied tax subsidies at
issue on prices, taking into consideration: (i) the nature of the subsidies; (ii) the magnitude and
duration of the subsidies; and (iii) the conditions of competition between Airbus and Boeing.
328. Regarding the nature of the tied tax subsidies, the European Union maintains that the Panel
gave a detailed description of the reasons why th ese subsidies, given their direct link to LCA
production and sales, had price-suppressing effects. The Panel also noted the United States'
agreement that, as a matter of economics, "tied" subs idies have an impact on the sales they are tied to,
and that, consequently, such "product-specifi c subsidies can have a significant impact on prices and
output".
756 The Panel further found that the FSC/ETI subsidies "bear a more direct relationship to
Boeing's LCA prices"757 than other, indirect, types of subsidies. Finally, the Panel confirmed the
price-suppressing effects of the tax subs idies by giving "considerable weight" 758 to factual evidence
before it, consisting of statements by Airbus and Boeing executives and the US Trade Representative.
329. Regarding the magnitude of the subsidies, the European Union considers that the Panel did
not find the parties' attempts to measure the magnitu de of the FSC/ETI subsidies to be informative or
illustrative of the capacity for these subsidies to have affected Boeing's prices because "even relatively
small amounts of subsidies of this na ture could have significant effects". 759 With respect to the
duration of the tax subsidies, the Panel found that the FSC/ETI subsidies gave Boeing an important
advantage over Airbus in subsequent sales of aircra ft of the same family to the same customer. The
European Union argues that, in practical terms, th is meant that Airbus had to offer greater price
discounts to entice Boeing's customer base to switch to Airbus. This meant that Airbus experienced
present significant price suppression or lost sales from previous FSC/ETI subsidies that allowed
Boeing to secure the initial sale with a particular airline.

756European Union's appellee's submission, para. 533 (quoting Panel Report, para. 7.1806). (emphasis
added by the European Union)
757European Union's appellee's submission, para. 534 (quoting Panel Report, para. 7.1808). (emphasis
added by the European Union)
758European Union's appellee's submission, para. 535.
759European Union's appellee's submission, para. 539.
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330. With respect to the conditions of competition, the European Union contends that the Panel
made a series of factual findings regarding key asp ects of the LCA industry, and found that the LCA
markets at issue are competitive duopolies between Airbus and Boeing, characterized by fierce
competition over price and product quality. The Pane l also found that the "price-sensitive nature of
certain significant LCA sales campaigns"
760 meant that the tax subsidies at issue led Boeing to lower
its prices over the 2004-2006 period. In sum, the European Union argues, "the Panel properly found
that, without {the} subsidies, Boeing would not have been able to secure certain sales that it did make,
while in other cases Boeing's subsidy-induced prices fo rced Airbus to secure the sales Airbus made at
reduced prices".761
331. Second, the European Union contends that, although the United States "essentially argues that
the 'tied' FSC/ETI and B&O tax subsidies had no effects on Boeing's prices whatsoever" 762, this is
contradicted by the United States' own statements re garding the nature of the tax subsidies at issue.
The Panel noted the United States' agreement that the nature of the subsidies plays an important role
in an analysis of adverse effects, and that "tied" subsidies have a direct impact on output and prices.
Coupled with the United States' admission that the ta x subsidies at issue are "specifically designed to
affect trade"763, this demonstrates that the United States exp licitly recognized that the "tied" nature of
tax subsidies is a key factor in an assessment of price effects.
332. Third, the European Union argues that the a lternative counterfactual put forward by the
United States, in which Boeing would not have pric ed its LCA any differently had it not received the
tax subsidies, is "profoundly flawed" 764 and misrepresents and ignores im portant Panel findings. The
United States' counterfactual fails to discuss the impo rtance of the "tied" nature of the tax subsidies
for the Panel's causation analysis. The United Stat es also misrepresents findings central to that
analysis. Contrary to the United States' claim, the Panel's rejection of the European Communities'
argument that Boeing would not have been economically viable without the receipt of subsidies is not
tantamount to a finding that Boeing had unfettered access to capital and could therefore make its
pricing decisions independently of the subsidy paym ents. Moreover, there was no credible evidence
before the Panel to support the United States' as sertion that Boeing would have enjoyed unfettered
access to capital in the absence of the subsidies. To the contrary, there was considerable evidence

760Panel Report, para. 7.1820.
761European Union's appellee's submission, para. 541 (referring to Panel Report, para. 7.1822).
762European Union's appellee's submission, para. 526. (original emphasis)
763European Union's appellee's submission, para. 529 (quoting United States' other appellant's
submission, para. 327). See also United States' other appellant's submission, para. 352: "The finding that
subsidies tied to sales will have an impact on {LCA prices and} sales is accurate". (emphasis added by the
European Union)
764European Union's appellee's submission, para. 544.
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before the Panel supporting the conclusion that Boeing was unable to take pricing decisions
unconstrained by variations in its cash flow, and that Boeing sought "to use all available financial
means, including tax subsidies, to 'out-price' Airbus".
765 The European Union considers that a
company possessing unfettered access to capital would not have had to engage in such price-cutting
strategies.
333. The European Union further argues that the alternative counterfactual advanced by the
United States cannot be reconciled with the Panel's findings on the conditions of competition in the
LCA market. The European Communities had esta blished before the Panel that, for a market
characterized by duopoly competition, "economic theory predicts that there is an inherent incentive
for each duopolist to 'out-price' its rival, either by aggressive pricing or by additional R&D". 766 The
European Union maintains that the evidence before the Panel s hows that Boeing was constantly
experiencing resource constraints that prevented it from pushing Airbus out of the LCA market. If
Boeing had unfettered access to capital markets, th e European Union contends, "Boeing would have
priced its LCA such as to force Airbus out of the market".767
Magnitude of the subsidies
334. The European Union rejects the United States' efforts to "reargue the weight and significance
of the evidence before the Panel" 768 regarding the magnitude of the subsidies. Contrary to the
United States' position, the Panel did not indicat e that, because it had found the B&O tax rate
reductions to be, by themselves, too small to cau se serious prejudice, the magnitude of the subsidies
could be, or in fact was, the decisive factor fo r the Panel's causation analys is. The Panel did conduct
an analysis of the magnitude of the tax subsidi es, concluding that, based on the totality of the
evidence, these subsidies caused pri ce effects in strategic sales campaigns, even where granted in
relatively small amounts. The Panel adopted reas oning of a qualitative nature and "explained the
significance of highly-trade-distorting tax subsidies of relatively small magnitude".769 In so doing, the
Panel incorporated earlier findings, not appealed by the United States, regarding the specific nature of
the subsidies at issue, the conditions of competiti on between Airbus and Boeing, and the duration of
the subsidies. Following consider ation of the context provided by these other relevant factors, the

765European Union's appellee's submission, para. 551. (emphasis omitted)
766European Union's appellee's submission, para. 554.
767European Union's appellee's submission, para. 561.
768European Union's appellee's submission, para. 565.
769European Union's appellee's submission, para. 573.
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Panel "rightly concluded that, given the conditions of competition in the LCA markets at issue, the tax
subsidies were of a sufficient nature to cause price effects in strategic sales campaigns".
770
335. The European Union also rejects the United States' argument that the Panel applied an
incorrect legal standard. The European Union asserts that the Panel correctly identified its obligation
to establish a "genuine and substan tial relationship of cause and effect" between the subsidies at issue
and the alleged market effects, and it had a "certain degree of discretion" in choosing the appropriate
methodology to assess causation. Th e European Union considers that the Panel's decision to discuss
the magnitude of the subsidies in the context of vari ous factors that accentuated the effects of the tax
subsidies was "reasonable and appropriate"771 and "well within the bounds of its discretion as the trier
of fact".772
Correlation between the subsidies and their effects
336. The European Union considers that the United States' argument that the Panel erred because it
failed to make any findings on the issue of correlati on between the subsidies and their effects has no
merit. The European Union argues that the Panel did address the issue of correlation between market
effects, prices, and the FSC/ETI subsidies. The Panel gave considerable weight to, for example,
evidence of a strategic sales campaign between Airb us and Boeing in which Airbus' negotiation team
was asked by the potential customer to reduce its sales offer by the amount of the FSC subsidies
granted to Boeing. The Panel also indicated that it assessed questions of correlation when it explained
that it could not "ascertain the effects of the subsidies from direct observation of market share and
pricing trend data" over the 2000-2006 period b ecause the "FSC/ETI programme was in operation
prior to 2000".773
337. The European Union additionally maintains that there is no legal requirement to establish a
temporal correlation between the amount of subsid ies and price suppression. There is no requirement
to quantify precisely the amount of subsidies, and th e Appellate Body has clarified that the absence of
a temporal correlation is not a determinative factor. 774 As the European Union sees it, the
United States is effectively asking the Appellate Bo dy to re-weigh evidence and arguments that the
Panel did not consider persuasive . The Appellate Body should re ject these arguments because the
United States has not raised a challenge under Article 11 of the DSU. Even if the Panel's

770European Union's appellee's submission, para. 584.
771European Union's appellee's submission, para. 585.
772European Union's appellee's submission, para. 586.
773European Union's appellee's submission, para. 590 (quoting Panel Report, para. 7.1819). (emphasis
added by the European Union)
774European Union's appellee's submission, para. 592 (referring to Appellate Body Report, US –
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consideration of the evidence had been properly ra ised on appeal, the United States "has not shown
any reasons for the Appellate Body to interfere with the Panel's discretion as the finder of fact".
775
Non-attribution factors
338. The European Union rejects the United States' ar gument that the Panel failed to engage in a
meaningful analysis to ensure that the effects of other factors on prices were not improperly attributed
to the tax subsidies. The Panel properly consider ed that "there is no requirement for panels to
undertake a separate analytical step to evaluate potential non-attribution factors, and that it is
permissible to adopt an analysis that takes these potential non-attribution factors into account
simultaneously with the effect of the subsidies and in the context of conditions of competition
affecting the market". 776 The Panel further explained that, in applying its "unitary" 777 approach to
causation, it would assess whether other factors affected Boeing's pricing and product offerings, or
attenuated the effects of the subsidies on Airbus' prices and sales. Moreover, the Panel confirmed that
it had fully considered the United States' arguments and evidence regarding other factors contributing
to the prices and performance of Airbus LCA relative to Boeing LCA when it stated that this evidence
does not "reverse or attenuate the pervasive and cons istent pricing advantage that Boeing had in LCA
campaigns in the 2001-2003 period due to th e availability of the FSC/ETI subsidies".
778 This finding
was based on the Panel's earlier finding that Boei ng would always have a pricing advantage because
of the FSC/ETI subsidies, regardless of whether other factors may have influenced Airbus' or Boeing's
prices.
339. In respect of the non-attribution factors identif ied by the United States, the European Union
explains that the Panel found that a "per vasive and consistent pricing advantage" 779 existed regardless
of the pricing pressures these factors brought to bear on Boeing and Airbus. The Panel's non-
attribution findings must be read together with th e Panel's extensive findings that "point quite clearly
to the significance of the FSC/ETI subsidies to Boeing's ability to compete on price against
Airbus".780 The Panel thus properly found that Boeing' s pervasive and consiste nt pricing advantage
existed in strategic sales campaigns regardless of n on-attribution factors, and this finding is fully
supported by the evidence and properly explained in the Panel's reasoning. The Appellate Body
stated in EC and certain member States – Large Civil Aircraft that the panel in that case should have
indicated that it would ensure that the effects of other factors were not impr operly attributed to the

775European Union's appellee's submission, para. 596.
776Panel Report, para. 7.1660.
777European Union's appellee's submission, para. 601.
778Panel Report, para. 7.1819.
779Panel Report, para. 7.1819.
780Panel Report, para. 7.1818.
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challenged subsidies.
781 The European Union argues that this is precisely what the Panel did in this
case when it found that the non-attribution factors raised by the United States did not reverse or
attenuate the pricing advantage enjoyed by Boeing.
(ii) Treatment of FSC/ETI subsidies as prohibited export
subsidies
340. The European Union submits that the Panel did not, as the United States claims, assess the
FSC/ETI subsidies independent of their nature, magnit ude, or other characteristics. Rather, the "tied"
nature of the FSC/ETI subsidies was a central elemen t to the Panel's causation analysis. The Panel's
statement that it was entitled to determine that th e FSC/ETI subsidies have trade-distortive effects
"precisely because the FSC/ETI subsidies {were} contingent on {i.e., 'tied to'} Boeing making export
sales"782 must be read in the context of the Panel's other finding that the FSC/ETI subsidies were
realized on the delivery of every LCA that Boeing exporte d. It is this "tied", or "contingent", nature
that provides a direct link between the prohibited ex port subsidies finding and their actual effects on
the LCA markets. Where such a direct link, or "tie", exists, the effect of the subsidies is not at all
remote; rather, it is immediate, direct, and con sequential. The Panel therefore agreed with the
conclusion of the panel in Brazil – Aircraft that "subsidies contingent upon exportation … are
specifically designed to affect trade".783 The European Union considers that there is therefore no legal
or logical basis for the United States to challenge th e Panel's findings that the status of the FSC/ETI
subsidies as prohibited export subsidies was "one of a number of relevant facts in assessing the
capacity of these subsidies to cause various forms of serious prejudice". 784 The European Union adds
that "the United States itself … exp licitly agreed that the FSC/ETI export subsidies, due to their 'tied'
nature, lead to an increase in Boeing re venues after the export sale of a Boeing LCA" 785, and
acknowledged that the tax subsidies at issue were "specifically designed to affect trade".786
341. The European Union also argues that the Panel did not, as the United States claims, make its
adverse effects findings "without any other evidence or reasoning". 787 To the extent the Panel
determined that the FSC/ETI subsidies had trade-di stortive effects because of their status as export
subsidies that were directly "tied to" particular aircraft sales, it coupled that determination with

781European Union's appellee's submission, para. 610 (referring to Appellate Body Report, EC and
certain member States – Large Civil Aircraft, para. 1234).
782European Union's appellee's submission, para. 613 (quoting Panel Report, para. 7.1810). (emphasis
and bracketed language added by the European Union)
784European Union's appellee's submission, para. 616. (original emphasis)
785European Union's appellee's submission, para. 617 (referring to Panel Report, paras. 7.1806
and 7.1635).
786United States' other appellant's submission, para. 327.
787United States' other appellant's submission, para. 339.
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references to what it termed "reliable evid ence which confirms that determination".
788 According to
the European Union, the paragraphs referred to by the Panel reflect the considerable evidence it relied
on in finding that the tax subsidies "contingent upon" or "tied to" Boeing's export sales cause serious
prejudice to the interests of the European Communities.
342. The European Union contends that, in view of the extensive evidence that the Panel found to
confirm its determination that the FSC/ETI subsidies had trade-distortive effects, there is no basis for
the United States to assert that the allege d presumption was "outcome-determinative". 789 The Panel's
qualification in footnote 3763 of the Panel Report, together with the additional analysis that it
undertook, make clear that the Panel did not stop with what the United States describes as a
presumption of trade-distortive effects. Instead, the Panel confirmed its finding based on an objective
assessment of the evidence before it. By challenging the Panel's factual findings as "not enough",
"insufficient", "irrelevant", "meaningless", and "s imply inadequate to support a finding of serious
prejudice"
790, the United States' arguments "boil down to an attack on the weight that the Panel
attached to evidence in arriving at its factual finding of the effects of the tax subsidies at issue on
Boeing's … commercial behaviour, and by extension Airbus' sales and prices". 791 T h e
European Union maintains that the United States has not challenged these findings under Article 11 of
the DSU, rendering its arguments inadmissible. In any event, the European Union adds, the Panel's
findings were proper and provide no basis for a reversal under Articles 5(c) and 6.3 of the
SCM Agreement, nor do they exceed the bounds of the Panel's discretion as the trier of facts under
Article 11 of the DSU.
(iii) Additional claims relating to the Panel's analysis of price
suppression, lost sales, and displacement or impedance
Price suppression
343. The European Union rejects the United States' cl aims that the Panel: (i) failed to refer to
pricing trend data; (ii) failed to examine other fact ors affecting pricing; and (iii) failed to assess the
degree of price suppression to determine if it was "si gnificant". With regard to pricing trend data, the
European Union argues that this is an attempt by the United States to re-introduce its "correlation"
argument. There is no requirement for a panel examining price suppression to conduct an assessment
of general price trends. The European Union explai ns that the alleged relevance of price trends in
US – Upland Cotton originated from the panel's confusion of price suppression with price depression,

788Panel Report, footnote 3763 to para. 7.1810.
789United States' other appellant's submission, para. 350.
790United States' other appellant's submission, para. 352.
791European Union's appellee's submission, para. 625. (original emphasis)
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for which the Appellate Body criticized that panel, and for its bifurcated approach to first finding the
existence of price suppression by reference to pric e movements. The European Union adds that, in
US – Upland Cotton (Article 21.5 – Brazil) , the Appellate Body explained why, for a case involving
price suppression (as opposed to price depression), no speci fic analysis of pricing trends is required.
Because the Panel in this case adopted a unitary approach to assessing causation, the relevant issue
was whether, "irrespective of the particular trends in prices in the LCA markets at issue, prices would
have been higher".
792 Although the United States maintains that price trends witnessed in the
2004-2006 reference period for the A340 and 777 aircraft are incons istent with a price suppression
finding, such a finding is "not dependent" 793 upon observations about the actual pricing for these
aircraft.
344. The European Union also argues that the Panel took into consideration pricing and price trend
data, but that these considerations "were neither central nor decisive for the Panel's findings". 794 The
European Union considers that the factors selecte d by a panel in its causation analysis are highly
context-dependent, and that, "{i}n the context of the FSC/ETI and B&O tax subsidies, a closer
examination of price trends was not warranted". 795 The tax subsidies at issue were not linked to the
world market prices for LCA but, rather, tied to the production, sale, and export of LCA. Moreover,
these subsidies had affected market prices for such a long time that an assessment of price trends
would not have revealed relevant information. Th e European Union considers that this is to be
contrasted with the situation in US – Upland Cotton , where an examination of price trends was
undertaken because that case involved counter-cyclical, price-contingent subsidies, and where, in any
event, the Appellate Body did not attribute much weight to the issue of price trends. The
European Union underscores that the Appellate Body confirmed that "Article 6.3(c) does not set forth
any specific methodology for determining whether the effect of a subsidy is significant price
suppression" and that "{t}here may well be different ways to make this determination".
796
345. With respect to the Panel's treatment of non-attr ibution factors, the European Union contends
that the United States "errs fundamentally when it asser ts that the Panel did not consider non-subsidy
factors in the 'unitary' causation analysis of significant price suppression". 797 The European Union
maintains that the Panel considered the United St ates' arguments regarding various non-attribution

792European Union's appellee's submission, para. 634. (original emphasis)
793European Union's appellee's submission, para. 640.
794European Union's appellee's submission, para. 635.
795European Union's appellee's submission, para. 635.
796European Union's appellee's submission, para. 638 (quoting Appellate Body Report, US – Upland
Cotton, para. 427).
797European Union's appellee's submission, para. 641 (referring to United States' other appellant's
submission, para. 368).
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factors as part of its causation analysis, but that it did not find that these factors reversed or attenuated
the pervasive and consistent pricing advantage enjoyed by Boeing.
346. Regarding the Panel's treatment of the degr ee of price suppression, the European Union
maintains that the United States is wrong to assert th at the Panel was under an obligation to quantify
the level of price suppression to determine its si gnificance. The Panel based its "significance"
findings on various qualitative factors, including th e nature, design, and operation of the tied tax
subsidies, the particularities of the LCA markets, the duopoly competition between Airbus and
Boeing, the price-sensitive nature of certain stra tegic sales campaigns, the pervasive and consistent
pricing advantage enjoyed by Boeing, and the exis tence of buyer switching cost advantages. The
European Union maintains that these findings, as we ll as their explanation and evidentiary basis,
comply fully with the requirements of Articles 5 and 6.3(c) of the SCM Agreement.
Lost sales
347. The European Union also disagrees with the Un ited States' claims that the Panel failed to
identify which particular sales campaigns were lost by Airbus, or otherwise discuss what facts existed
to support its findings of lost sales. The European Union submits that there is no requirement for a
panel to identify, address, and discuss specifically individual sales campaigns in order to make a
finding of significant lost sales. The European Un ion refers to the Appellate Body's statement in EC
and certain member States – Large Civil Aircraft that an examination of specific sales campaigns
"may be appropriate given the particular characteristi cs of a market", but that an aggregation of such
information "is also permissible".
798 Consistent with this statem ent, the Panel conducted a unitary
counterfactual analysis and "made its significant lost sales finding on the basis of its earlier finding
regarding the existence of such LCA world markets". 799 The Panel focused its counterfactual analysis
on what it termed "strategic", "price-se nsitive", or "significant" sales campaigns. 800 The Panel thus
properly concluded that lost sales could occur wh ere the price advantage provided by the tied tax
subsidies caused Boeing to win certain strategi c and highly price-sensitive sales that it would
otherwise not have been able to secure. According to the European Union, this was a permissible and
appropriate approach to the Panel's findings of significant lost sales.
348. The European Union also argues that the United States' claim should be rejected in the light
of the manner in which the European Communities structured its claim before the Panel. If a
complaining Member structures its case based on a series of individual claims of serious prejudice

798Appellate Body Report, EC and certain member States – Large Civil Aircraft, para. 1217.
799European Union's appellee's submission, para. 650.
800European Union's appellee's submission, para. 651 (quoting Panel Report, paras. 7.1820, 7.1822,
and 7.1823).
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relating to individual significant lost sales, then it may be necessary for a panel to make findings on
each asserted lost sale. In this dispute, however , the European Communities "brought a single claim
of serious prejudice, and illustrated its claim presenting evidence of, inter alia , lost sales, by
providing details regarding various sales campaigns". 801 The Panel was within its discretion to
consider these sales campaigns as evidence within its overall assessment of the existence of
significant lost sales. The European Union main tains that, "much as panels are not required to
quantify price suppression, they may, but are not required to, precisely identify lost sales". 802 The
European Union adds that, even if the Panel were re quired to have identified individual lost sales, the
Panel cited the particular sales campaign eviden ce introduced by the European Communities, and
confirmed that its assessment of the European Co mmunities' serious prejudice claim was based on all
of the evidence before it.
349. The European Union further submits that the United States' claim under Article 12.7 of the
DSU "is entirely dependent on its claims under Article 6.3(c)" 803 of the SCM Agreement. Consistent
with guidance by the Appellate Body, the Panel set out the necessary findings of fact, the applicability
of relevant provisions, and the basic rationale behi nd its findings. Although the United States argues
that the Panel did not set out a basic rationale by failing to disclose the essential or fundamental
justification for its findings and recommendations, Articles 5 and 6.3(c) of the SCM Agreement do not
require panels to identify specifically each lost sale at issue. In the European Union's view, there is no
reason to find that the Panel failed to meet the requirements of Article 12.7 of the DSU.
Displacement and impedance
350. With respect to the United States' argument that the Panel failed to establish that any of the
countries in which the European Communities alleged displacement or impedance was a "market", the
European Union contends that the Panel properly co ncluded that it was not required to do so. The
Appellate Body has stated that the term "market" refers to both a geogra phical market and a product
market. Given that Article 6.3(b) is limited in its scope to "third country market{s}", and therefore
"indisputable"804, and that there was no disagreement by the parties over the relevant product market,
the Panel was correct that it did not need to determ ine the existence of third-country markets for the
purposes of its displacement and impedance assessment. Even if the Panel was under an obligation to
make findings on the extent of the geographic market within a third country, the Panel was still
correct in finding that there was a world market for 100-200 seat and 300-400 seat LCA because,

801European Union's appellee's submission, para. 655. (original italics and underlining)
802European Union's appellee's submission, para. 657.
803European Union's appellee's submission, para. 661.
804European Union's appellee's submission, para. 675.
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"{w}here such an integrated world market exists , it logically includes the individual sub-markets
within that world market".
805 Thus, the Panel correctly determined that it was not required to consider
whether the European Communities had established th e existence of third-country markets in the
100-200 seat and 300-400 seat LCA markets.
351. With regard to the United States' claim that the Panel failed to identify specifically the
particular third-country markets in which it had fo und displacement and impedance had occurred, the
European Union responds with similar arguments to those it makes in relation to the United States'
appeal of the Panel's finding of significant lost sales. The European Union asserts that panels are not
required to identify, address, or discuss specifically individual third-country markets in order to make
a finding of displacement or impedance. The Pane l properly framed the issue before it as "whether,
based on evidence of sales occurring in those countries , {it was} satisfied that there has been
displacement and impedance of impor ts or exports within the meani ng of Article 6.3(a) and 6.3(b),
respectively in any of the three LCA product markets in the particular country market". 806 With
respect to the 100-200 seat and 300-400 seat LC A markets, the Panel made its findings of
displacement and impedance for EC exports "fro m third country markets in that product market". 807
Accordingly, the Panel's ultimate displacement a nd impedance findings are directly linked to, and
follow from, its broader causation findings involving the effects of the FSC/ETI subsidies and the
B&O tax rate reductions.
352. The European Union moreover argues that, because it "presented its displacement or
impedance case as being linked to, a nd dependent on, Airbus' lost sales" 808, there was no need for the
Panel to take an additional step and identify the specific third-country markets where displacement or
impedance would automatically flow from the existence of a lost sale in the global market. The Panel
properly explained that its displacement and impedance findings were based on "strategic"
(or "significant") sales campaigns809, and that it was within its discretion to find that, in strategic sales
campaigns, the availability of an additional prici ng advantage from the tied tax subsidies to Boeing
resulted in lost sales and, consequently, in displace ment or impedance in third-country markets. The
Panel's displacement and impedance findings are also fully supported by that evidence. Thus, in the
European Union's view, the Panel's overall causa tion analysis was supported by a considerable
evidentiary basis and provided a logical and legally sound causation analysis linking: (i) the pricing

805European Union's appellee's submission, para. 676.
806European Union's appellee's submission, para. 682 (quoting Panel Report, para. 7.1674). (emphasis
added by the European Union)
807Panel Report, para. 7.1823.
808European Union's appellee's submission, para. 684. (footnote omitted)
809European Union's appellee's submission, para. 685 (quoting Panel Report, paras. 7.1820, 7.1822,
and 7.1823).
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advantage provided by the tax subsidies; (ii) lowe r prices being offered in strategic sales campaigns;
(iii) sales being lost by Airbus in such strategic sales campaigns as a result of price concessions; and
(iv) the resulting displacement or impedance of mark et share in the particular third-country markets
where the lost sale took place.
353. The European Union considers that the Panel' s unitary causation analysis also provided a
basis for the Panel to have refrained from making speci fic third-country market findings. In addition,
because the conditions of competition in each of the sales campaigns presented by the
European Communities involved a particular airlin e from an individual third-country market, this
meant that, when Boeing secured some sales through the pricing advantages of the tax subsidies, this
necessarily resulted in its duopoly competitor, Air bus, losing market share in the corresponding
third-country market. Given those particular c onditions of competition, a subsidized sale would
always result in displacement or impedance in the related third-country market under a unitary
analysis. The European Union considers that th e United States' arguments "ignore the logical and
necessary connection between every lost sale and the existence of displacement or impedance in the
particular third-country market linked to that sale".
810 The European Union adds that, even if the
Panel were required to identify individual lost sal es, the Panel cited the sales campaign evidence
introduced by the European Communities, a nd confirmed that its assessment of the
European Communities' serious prejudice claim was based on all of the evidence before it.
354. With regard to the United States' claim under Article 12.7 of the DSU, the European Union
refers to its arguments made in the context of the lost sales discussion. Consistent with guidance by
the Appellate Body, the Panel set out the necessary findings of fact, the a pplicability of relevant
provisions, and the basic rationale behind its findings. Articles 5 and 6.3(c) of the SCM Agreement do
not require panels to identify specifically each third-country market in which displacement or
impedance occurs. In the European Union's view, there is no reason to find that the Panel failed to
meet the requirements of Article 12.7 of the DSU.
355. The European Union further main tains that the United States' arguments regarding particular
findings of the Panel also fail. The European Union observes that, although it made no deliveries of
the 737 during the reference period, Boeing seized 100% of the market in 2007. Because the Panel
confirmed that it would not limit the temporal scope of the evidence that it co nsidered in undertaking
its serious prejudice analysis, the evidence in its totality supported a finding of displacement. In
addition, although the fact that there were no A340 deliveries during the reference period in
New Zealand may not have supported a finding of displacement, the European Union argues that it

810European Union's appellee's submission, para. 699. (original emphasis)
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still provided ample evidence in support of a finding of impedance. The European Union also argues
that Airbus had a 100% market share between 2001 and 2002 in Hong Kong, China and that the fact
that there were no Airbus deliveries between 2004 and 2006 therefore does not undermine the Panel's
findings of displacement and impedance with respect to that market. Finally, although the Boeing 737
aircraft may not have been delivered to a leasi ng company in Singapore duri ng the reference period,
the aircraft were delivered, and hence displaced or impeded sales of the A320 in other third-country
markets.
356. Accordingly, the European Union asserts that the Panel properly f ound that the FSC/ETI
subsidies and the B&O tax rate reductions caused adve rse effects within the meaning of Article 6.3(b)
and (c) of the SCM Agreement in the 100-200 seat and 300-400 seat LCA markets, and requests the
Appellate Body to uphold the Panel's finding.
E. Arguments of the Third Participants
1. Australia
(a) Financial contribution
(i) Scope of Article 1.1(a)(1) of the SCM Agreement
357. Australia disagrees with the Panel's finding th at transactions properly characterized as
"purchases of services" fall outside the scope of Article 1.1(a)(1) of the SCM Agreement. In
Australia's view, a purchase of services that relates to a particular good would fall within the scope of
Article 1.1(a)(1). Australia's interpretation is based on the facts that: (i) the term "financial
contribution" has a broad meaning; (ii) the omission of text is not necessarily dispositive; and
(iii) the SCM Agreement disciplines subsidies to goods, includ ing a range of activities related to
production of those goods (for example, the kinds of assistance for research activities covered by the
now-expired Article 8 of the SCM Agreement).811
358. First, Australia notes that the concept of "finan cial contribution" has been interpreted broadly
in previous WTO disputes. 812 The panel in US – Export Restraints stated that subparagraphs (i)
to (iii) of Article 1.1(a)(1) encompass the tran sfer of economic resources from a government to a
private entity "by directly providing something of value—either money, goods, or services—to a

811See Australia's third participant's submission, paras. 3-19.
812Australia's third participant's submission, para . 10 (referring to Appellate Body Report, US –
Softwood Lumber IV, para. 52).
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private entity".
813 In a similar vein, the panel in US – Softwood Lumber III described
subparagraphs (i) to (iv) as covering "a wide variety of circumstances" 814 in which a financial
contribution can exist, and explained that th e provision of goods and services covers "the full
spectrum of in-kind transfers the government may undertake by providing resources to an
enterprise".815 Accordingly, the term "purchase of goods " could be considered "an example of the
'multiple government actions' that fall within the 'categories of behaviour' in subparagraph (iii)" 816,
and "purchase of services" (while not expressly identif ied) could be considered to fall within this
category of behaviour. Lastly, Australia notes th at the Panel relied on the removal of the words
"purchases of services" from the final text of the SCM Agreement in support for its finding. However,
the language "purchases goods or services" was introduced in the third draft of Article 1.1(a)(1)(iii),
whereas earlier drafts contained no reference to such language. 817 Therefore, the proper question "is
not why the final version of the SCM Agreement contains no explicit reference to services in
subparagraph (iii) but rather why the 'purchase of goods' text was included".818
359. Second, Australia is of the view that mean ing should not necessarily be attributed to the
absence of text, especially when doing so woul d be contrary to the object and purpose of the
SCM Agreement and would enable Members to circumvent th eir obligations. In this regard, Australia
points to the Appellate Body's statement in Canada – Autos that "omissions in different contexts may
have different meanings, and omission, in and of itself, is not necessarily dispositive".819
360. Third, Australia submits that relevant guidan ce can be extracted from now-expired Article 8
of the SCM Agreement. When Article 8.2(a) deemed assi stance for research activities to be a
non-actionable subsidy, it was necessarily presuppos ing that government actions related to services
could constitute a financial contribu tion and could confer a benefit. Therefore, Australia argues, the
SCM Agreement is "intended to capture transac tions related to goods, which could include actions

814Panel Report, US – Softwood Lumber III, para. 7.24.
815Australia's third participant's submission, para. 12 (quoting Panel Report, US – Softwood Lumber III,
816Australia's third participant's submission, para. 13 (quoting Panel Report, US – Export Restraints ,
para. 8.54). (emphasis omitted)
817Australia's third participant's submission, para. 14 (referring to Panel Report, para. 7.962; and
GATT Documents MTN.GNG/NG10/W/38 (18 July 1990), MTN.GNG/NG10/W/38/Rev.1 (4 September 1990),
and MTN.GNG/NG10/W/38/Rev.2 (2 November 1990).
818Australia's third participant's submission, para. 14.
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related to services"
820, and Article 1 of the SCM Agreement "should not be read as necessarily
excluding government actions related to services".821
361. Australia further contends that whether a particular government action can be characterized as
a particular type of transaction is irrelevant to the question of whether it constitutes a financial
contribution under Article 1.1(a)(1). Rather, the focus should be on the "nature" 822 of the government
action. To support its view, Australia refe rs to the Appellate Body's statement in US – Softwood
Lumber IV that "{a}n evaluation of the existence of a financial contribution involves consideration of
the nature of the transaction through which so mething of economic value is transferred by a
government".823 Australia disagrees with the Panel's find ing that "properly characterised purchases of
services"824 are excluded from the scope of Article 1.1(a)(1) of the SCM Agreement.
362. Australia criticizes the Panel for importing consid erations of "benefit" into the analysis of
whether a government action constitutes a financial c ontribution. There is nothing in the text or
context of the SCM Agreement to support the view that a financial contribution must be " principally
for the benefit" 825 of the recipient. The implication of the Panel's approach is that "financial
contributions that confer a benefit on the recipient, ... but not necessarily the 'principal benefit', do not
meet the definition of a subsidy under Article 1.1 of the SCM Agreement."826 Australia further
submits that the benefit or use of the service pr ovided, although necessary, is not sufficient to
determine whether a purchase of services is "principa lly for the benefit" of the purchaser or of the
service provider. Other relevant factors—such as the amount of remunerati on provided in exchange
for the service—should be considered in order to assess which party is the "principal beneficiary". 827
Moreover, the Panel's "principally for the benefit" test did not " explicitly consider whether the benefit
conferred by a purchase of services relates to, or passes through to, the production of goods", but
rather " implicitly" touched on the question of whether the aeronautics R&D contracts relate to
Boeing's production of LCA.828 Since a "purchase of services" exclusively directed at a service per se
would not be covered by the SCM Agreement, Australia is of the view that, in evaluating whether such

820Australia's third participant's submission, para. 18. (original emphasis)
821Australia's third participant's submission, para. 19. (original emphasis)
822Australia's third participant's submission, para. 20. (underlining omitted)
823Appellate Body Report, US – Softwood Lumber IV, para. 52.
824Australia's third participant's submission, para. 22 (referring to Panel Report, para. 7.970).
825Australia's third participant's submission, para. 29. (original emphasis)
826Australia's third participant's submission, para. 31. (original emphasis)
827Australia's third participant's submission, paras. 34 and 35.
828Australia's third participant's submission, para. 37. (original emphasis)
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a purchase principally benefits a recipient, it would be important to "critically examine"
829 whether
and to what extent the benefit relates to a particular good.
363. Australia acknowledges that, having found that purchases of services are excluded from
Article 1.1(a)(1) of the SCM Agreement, the Panel needed to "limit its finding" to only those
transactions "properly characterised"830 as purchases of services so as to avoid creating loopholes in
the coverage of the Agreement. However, had th e Panel focused its analysis on the nature of the
government action involved in the aeronautics R&D contracts and whether this fell within the
meaning of "financial contribution" for purposes of Article 1.1(a)(1), it would have been able to
undertake the separate analysis of whether such an action confers a benefit under Article 1.1(b).
(ii) B&O tax rate reduction
364. With respect to the Washington State B&O tax rate reduction, Australia notes that it appears
that the United States provided no evidence that the range of tax rates for the 36 categories of business
activities, and more specifically the tax rate reducti on for aircraft manufacturing, was in fact intended
to address the effects of "pyramiding".831 Rather, the evidence that was before the Panel indicates that
the purpose of the tax rate reduction is in fact to encourage the continued presence of the aerospace
industry in Washington State. In the absence of evidence establishing a common rationale for the
different tax rates, there was no basis for the Pane l to find that the income generated by aircraft
manufacturing is "legitimately comparable" to the in come generated by the 36 categories of business
activities "taken together".
832 Likewise, the United States failed to provide any evidence of the tax
rates that apply to "business activities of a similar complexity to/stage in the production process as
aircraft manufacturing". 833 Thus, the United States did not provide a "defined, normative
benchmark"834 as an alternative to the general B&O tax rates against which the Panel could compare
the revenue raised and the revenue that would have otherwise been raised.
365. Australia is of the view that, in these circ umstances, the Panel correctly found that the
"defined, normative benchmark" was the general ra te of taxation applicable to manufacturing
activities in Washington State, and that the B&O tax rate reduction in respect of aircraft
manufacturers was a "preferential rate"835 that constituted the foregoing of revenue that was otherwise

829Australia's third participant's submission, para. 38.
830Australia's third participant's submission, para. 26. (original emphasis)
831Australia's third participant's submission, para. 51.
832Australia's third participant's submission, para. 52.
833Australia's third participant's submission, para. 53. (original emphasis)
834Australia's third participant's submission, para. 53.
835Australia's third participant's submission, para. 56.
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due. Australia thus shares the Panel's view that "it is not difficult to identify a general rule of taxation
and exceptions to it … {and} a 'but for' test can be applied".
836
(b) Specificity
(i) NASA/USDOD allocation of patent rights
366. Australia disagrees with the European Union th at the Panel erred in the interpretation and
application of Article 2.1 of the SCM Agreement by having regard to the US Government's general
policy with respect to patent rights. Australia notes that a proper interpretation of "granting authority"
is not necessarily restricted to the specific en tity that directly provides the subsidy under
consideration. Further, the context of Article 2.1( a) clearly establishes that the provision is concerned
with determining the specificity of a particul ar measure, the focus being, according to WTO
jurisprudence, on whether a subsidy is sufficiently broadly available throughout an economy so as not
to be "specific". Having regard to all relevant factors that may assist in determining whether a
subsidy is specific " fosters, rather than frustrates, the object and purpose of the SCM Agreement". 837
In the circumstances of this case, the United States' general policy of granting all contractors patent
rights over any invention they produce under federally funded R&D contracts was directly relevant to
the Panel's determination of wh ether the patent right provisions of the NASA and USDOD contracts
and agreements with Boeing are "specific".
367. In addition, Australia considers that, having reached the preliminary conclusion that the
NASA and USDOD patent waivers were not specific within the meaning of Article 2.1(a) of the
SCM Agreement, the Panel should have further considered whether the patent waivers nevertheless
fell within the scope of Article 2.1(c) of the SCM Agreement. In Australia's view, the fact that the
European Union had presented arguments under Article 2.1(c) "provided the Panel with a '{reason} to
believe that the subsidy may in fact be specific' , notwithstanding that the patent 'waivers' were
apparently widely available".838
(ii) City of Wichita IRBs
368. With respect to the City of Wichita IRBs, Aust ralia agrees with the Panel that there are two
factors that together constitute the "second ratio" 839 for determining whether a recipient of a subsidy
has received a "disproportionately large amount" of the subsidy. These are, first, the relevant

836Panel Report, para. 7.133.
837Australia's third participant's submission, para. 71. (original emphasis)
838Australia's third participant's submission, para. 79.
839Panel Report, para. 7.759.
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"baseline" group (which the Panel considered to be all other entities in the Wichita manufacturing
sector
840) and, second, the relevant "indicator" (which the Panel considered to be Boeing's proportion
of employment within the Wichita manufacturing sector 841). Australia further submits that Boeing's
and Spirit's relative shares of employment with in the Wichita manufacturing sector was not an
appropriate measure for determining whether the amount of the subsidy received by Boeing and Spirit
was disproportionate under Article 2.1(c) of the SCM Agreement. The LCA industry is capital-
intensive, and the use of employee levels alone as th e relevant indicator therefore skews the analysis
towards a finding of disproportionality. Instead of this mechanistic approach, there should be
consideration of all relevant factors that indicat e a subsidy recipient's share of economic activity
within the relevant jurisdiction, including the recipient's share of employment, output, and revenue.
In Australia's view, "such an analysis would more ac curately determine a recipient's 'place' within the
relevant economy and would therefore provide a more appropriate measure for determining
disproportionality".
842
(c) Adverse effects
(i) Causation
369. At the oral hearing, Australia expressed two concerns with respect to the United States'
argument that a proper counterfactual would have cons idered that, in the absence of the subsidies,
Boeing would have funded the research itself. Firs t, such an argument detracts from the proper focus
of adjudicating claims under Articles 5 and 6.3 of the SCM Agreement, which is on whether or not a
subsidy has caused adverse effects to the interests of another Member. In Australia's view, the
analysis does not require consideration of the effect that a hypothetical factor may have had in the
place of the subsidy, and it is incorrect to concl ude that such speculation displaces a finding that the
subsidy in fact has caused the alleged market phe nomena. Second, the United States misconstrues the
proper role and scope of a counterfactual analysis . Australia considers that the only relevant
hypothetical factor in a counterfactual analysis is the assumption that the subsidy was not granted and,
therefore, a panel should examine what the market would have looked like in the absence of the
subsidy, holding all else equal.

840Australia's third participant's submission, para. 87.
842Australia's third participant's submission, para. 95.
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(ii) Collective assessment of the subsidies and their effects
370. Australia urges the Appellate Body to consid er carefully whether, in the particular
circumstances of this dispute, the Panel was or was not required to aggregate the effects of the
aeronautics R&D subsidies with the effects of the B&O tax rate reductions, as well as whether the
effects of the remaining subsidies could be found to complement and supplement the effects of the
tied tax subsidies, notwithstanding that the Pane l was unable to establish the requisite causal link
between the remaining subsidies and Boeing's pricing of its LCA. Australia recalls that, before the
Panel, it expressed the view that, while an assessment of the cumulative effects of subsidies may be
relevant, this should be done only where appropriate for a particular adverse effects claim, ensuring
that an appropriate nexus exists between the subsidies, based on the nature of those subsidies, to
warrant their aggregation.
843
 The Aeronautics R&D subsidies and the B&O tax rate reduction
371. With respect to the Panel's decision not to aggr egate the "technology effects" of the subsidies
benefiting the 787 with the "price effects" of the subsidies benefiting that same Boeing aircraft family,
Australia does not agree with the European Union th at a proper interpretation of Articles 5 and 6.3 of
the SCM Agreement leads to the conclusion that aggregation is required in this dispute. Although
these provisions do not differentiate between different subsidies that operate through distinct causal
mechanisms, neither do they indicate that it is impe rmissible to do so. Referring to the approach of
the Appellate Body in EC and certain member States – Large Civil Aircraft and to the discretion
enjoyed by panels to determine on a case-specific b asis whether the effects of subsidies should be
aggregated, Australia contends that, for the Pane l to have erred in declining to aggregate the
technology effects and the price effects, the Euro pean Union would need to have established that,
having regard to each of the three criteria identif ied by the Appellate Body—that is: (i) the nature,
design, and operation of the subsidies at issue; (ii) the alleged market phenomena; and (iii) the extent
to which the subsidies are provided in relation to a particular product or pr oducts—the two groups of
subsidies should have been aggregated.844

843Australia's third participant's submission, para. 104 (referring to Australia's written submission to the
Panel, para. 66).
844Australia's third participant's submission, paras. 108 and 109 (referring to Appellate Body Report,
EC and certain member States – Large Civil Aircraft, para. 1376).
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372. Australia also points to the approach of the panel in US – Upland Cotton, which was endorsed
by the Appellate Body in that dispute.
845 Australia emphasizes that the panel in that case did not
suggest that subsidies should be aggregated in particular circum stances, but instead considered that a
textual interpretation of Articles 5 and 6.3(c) of the SCM Agreement permits an integrated
examination of the effects of va rious subsidies, and "a panel ' may legitimately treat them as a
"subsidy" and group them and their effects together ' … 'to the extent a sufficient nexus with these
exists among the subsidies at issue so that their effects manifest themselves collectively '".846
Accordingly, it is not only the existence of some nexus between the subsidy, the subsidized product,
and the effects-based variable under consideration th at is relevant: the panel must also consider
whether such a nexus is sufficiently close so that it can be said that the effects of the subsidies
manifest themselves collectively.
 The tied tax subsidies and the remaining subsidies
373. Australia observes that the same approach should be applied in reviewing the Panel's decision
not to aggregate the effects of the tied tax subsidies with the effects of the remaining subsidies, and in
assessing whether a sufficient nexus exists between the particular subsidy, each of the Boeing aircraft
alleged to have benefited from the subsidy, and the prices obtained for that aircraft by Boeing. The
Panel found that the remaining subsidies "are not directly related to Boeing's production or sale of
LCA".847 In this regard, Australia notes that, in orde r to show that the nexus between the tied tax
subsidies and the remaining subsidies is "sufficiently close that their effects manifest themselves
collectively"848, the Panel needed to be satisfied that the remaining subsidies, like the tied tax
subsidies, enabled Boeing to lower its prices by increasing Boeing's profits from LCA sales.
374. Australia understands that, in accordance w ith the Appellate Body's reasoning in EC and
certain member States – Large Civil Aircraft , it is appropriate to assess whether the remaining
subsidies complemented and supplemented the effects of the tied tax subsidies, as long as a genuine
causal link can be found between each of the re maining subsidies and the relevant market
phenomenon.849 Australia recalls the Appellate Body's fi nding that the panel lacked a sufficient basis

845Australia's third participant's submission, para. 111 (referring to Panel Report, US – Upland Cotton ,
846Australia's third participant's submission, paras. 111 and 112 (quoting Panel Report, US – Upland
Cotton, para. 7.1192). (emphasis added by Australia)
847Panel Report, para. 7.1827.
848Australia's third participant's submission, para. 118. (original emphasis)
849Australia's third participant's submission, para. 121 (referring to Appellate Body Report, EC and
certain member States – Large Civil Aircraft, paras. 1370 and 1378).
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to conclude that the R&D subsidies in that ca se "complemented and supplemented" the "product
effect" of the LA/MSF subsidies.
850
375. Australia asserts that it may be difficult to show that the nexus betw een these two groups of
subsidies is sufficiently close that their effects manifest themselves collectively , or that the remaining
subsidies complemented and supplemented the effect s of the tied tax subsidies so as to increase the
profitability of LCA sales and enable Boeing to price its LCA at a level that would not otherwise have
been commercially justified. For Australia, this is because the Panel was unable to find the requisite
causal link between the remaining subsidies and the serious prejudice alleged to have occurred, given
that the remaining subsidies were not linked to th e production of particular LCA, and given also the
small total amount of the remaining subsidies.
2. Brazil
(a) Annex V to the SCM Agreement
376. Brazil submits that the Panel erroneously applied a "formalistic approach"851 when concluding
that the failure of the DSB to initiate an Annex V procedure and to designate a facilitator precluded
the Panel from making any findings of violation of Annex V or from drawing adverse inferences from
an alleged refusal to cooperate in the informati on-gathering process. The text of paragraph 1 of
Annex V "clearly imposes a coope ration obligation on Members" that applies irrespective of any
action of the DSB, and thus provided an "ind ependent basis" for determining whether the
United States had complied with its obligations under the SCM Agreement.852 I n a d d i t i o n , t h e
"overarching obligation"853 under paragraph 1 of Annex V requir es cooperation in the organization of
an Annex V procedure as outlined in paragraphs 1 through 4 of Annex V.
377. In Brazil's view, paragraph 2 of Annex V to the SCM Agreement is clear and requires the
DSB to initiate the procedure upon request. By usi ng the term "shall", the drafters clearly intended
the initiation of Annex V procedures to be mandatory upon such request. Brazil highlights the "clear
textual parallel"854 between the wording of paragraph 1 of Annex V and the provisions concerning the
establishment of panels (Article 6.1 of the DSU) a nd the adoption of panel reports (Article 16.4 of the
DSU). Pursuant to these provisions, once a request has been made, a panel shall be established, a
report shall be adopted, and, under Annex V, an info rmation-gathering procedure "shall" be initiated.

850Australia's third participant's submission, para. 124 (referring to Appellate Body Report, EC and
certain member States – Large Civil Aircraft, para. 1407).
851Brazil's third participant's submission, para. 14.
852Brazil's third participant's submission, para. 15.
853Brazil's third participant's submission, para. 16.
854Brazil's third participant's submission, para. 19.
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However, the DSB may decide by consensus not to establish a panel or not to adopt a report.
Annex V does not even allow for that option. In th at sense, it is an automatic process. Interpreting
the relevant provisions as allowing the subsidizing Member to block unilaterally the initiation of an
Annex V procedure would contradict the text and undermine the ability of Members to bring
complaints under the SCM Agreement, in particular in cases where mu ch of the evidence relating to
subsidization rests with the government of the subsidizing Member.
378. Brazil considers that the Panel's conclu sion that the DSB had not initiated the
information-gathering process foreseen in paragra ph 2 of Annex V was correct; however, this does
not mean that the Panel "was impotent in the face of such a failure to cooperate".
855 In accordance
with Article 11 of the DSU, the function of a panel is "to assist the DSB in discharging its
responsibilities under the covered Agreements". As an "assistant" to the DSB, the Panel should have
interpreted the obligations of Members under Annex V so as to clarify matters for the future.
Therefore, the Panel should have issued a prelim inary ruling urging the United States to cooperate
and, given its non-cooperation, the Panel should ha ve made a finding that it would draw adverse
inferences. In this regard, Brazil points out that a panel may apply adverse inferences in the event of
lack of cooperation generally without relyi ng on paragraphs 6 and 7 of Annex V to the
SCM Agreement.
(b) Financial contribution
(i) Scope of Article 1.1(a)(1) of the SCM Agreement
379. At the oral hearing, Brazil argued that the Pa nel erred by finding that transactions properly
characterized as "purchases of services" are exclud ed from the scope of Article 1.1(a)(1) of the
SCM Agreement. The SCM Agreement applies only to subsidies for goods and goods producers, not
to subsidies for services or service providers. However, where there is a transfer of money that
directly benefits a product or a producer of goods (regardless of whether it occurs in the context of the
purchase of a service), there is no reason to ex clude it from the subsidies disciplines of the
SCM Agreement. This holds true even if the service is ge nuinely purchased by and for the benefit of
the government. Brazil cautioned that the test em ployed by the Panel does not close the large
loophole created by the exclusion of purchases of services from the scope of the SCM Agreement, and
further stated that the general category of a "direct transfer of funds" already covers payments made in
the context of a service contract that benefits a particular goods producer.

855Brazil's third participant's submission, para. 20.
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(c) Specificity
(i) City of Wichita IRBs
380. With respect to the City of Wichita IRBs, Br azil noted at the oral hearing that the Panel
correctly compared the amount of subsidy granted to Boeing and Spirit with the relevant importance
of the companies in the economy as a whole. What is "disproportionate" under Article 2.1(c) of the
SCM Agreement depends on the importance of the recipi ent companies in the economy, and not, as
argued by the United States, on the importance of these companies in comparison with other subsidy
recipients. The "predominant use" factor in Article 2.1(c) is the criterion that is concerned with
intra-subsidy comparisons. Alt hough employment is an acceptable indicator, the factors to be
considered in determining the importance of certain enterprises in a country's economy are to be
determined on a case-by-case basis. Some of the problems identified by the Panel when addressing
specificity could have been avoided had the Pa nel employed a more integrated approach to
Article 2.1. A proper specificity analysis, as th e Appellate Body has noted, must allow for the
concurrent application of the principles set out in Article 2.1 to the various legal and factual aspects of
a subsidy in a given case.
856 In Brazil's view, Article 2.1 of the SCM Agreement must be interpreted
in a holistic manner, taking account of the specific facts of each case that determine which factors
may or may not be revealing of the de facto specific nature of a subsidy.
(d) Adverse effects
(i) Technology effects of the aeronautics R&D subsidies
381. Brazil takes no view on whether the Panel's c hosen methodology for its causation analysis
was correct. Brazil's arguments relate to the n ecessity of conducting a counterfactual analysis once a
panel has made certain findings. Specifically, Brazil argues that, if a panel determines that certain
subsidies, like R&D subsidies, have created a co mpetitive advantage by significantly contributing to
the development of a new aircraft model that woul d not have been developed in the same timeframe
and for the same low cost "but for" the subsidies, "no further counterfactual analysis is required".
857
A "qualitative assessment" of the actual effect of the subsidy suffices to establish a "genuine and
substantial relationship of cause and effect". 858 Moreover, a "but for" approach does not require the
development of detailed alternative realities, but seeks to determine whethe r the same or similar
effects would also have occurred absent the subsid ies and keeping all other factors equal. Brazil
therefore agrees with the European Union that "{a} 'but for' analysis can be performed quantitatively,

856See Appellate Body Report, US – Anti-Dumping and Countervailing Duties (China), para. 371.
857Brazil's third participant's submission, para. 47.
858Brazil's third participant's submission, para. 51.
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… or conducted in a qualitative manner" and that the Panel, "within the bounds of its discretion",
chose the latter route.
859
(ii) Price effects of the tied tax subsidies
382. Brazil considers that, although counterfactuals may be useful tools to determine whether a
genuine and substantial relations hip of cause and effect exists, nothing in the text of the
SCM Agreement requires the use of economic models or th e "detailed construction of an alternative
reality".860 Once the market has been properly determin ed in assessing the price effects of subsidies,
it suffices for a panel to examine general price trends and market share trends in order to establish
whether the subsidies cause market impedance, lost sales, or price suppression. Although it refrains
from expressing a view as to whether the Panel's u ltimate conclusions are sufficiently supported by
the facts in this dispute, Brazil agrees with the Eu ropean Union that "{a} 'b ut for' analysis can be
performed quantitatively, using formal modelling techniques, or conducted in a qualitative
manner".861 The Panel chose the latter route, and this c hoice was within the bounds of its discretion.
In Brazil's view, the SCM Agreement does not, and should not, be interpreted so as to require a
complainant to use economic models or methodolog ies tracing cash flows in a company's financial
statements in order to demonstrate causation.
383. Brazil asserts that the Panel correctly concluded that the trade-distorting nature of prohibited
export subsidies is an important factor supporting a conclusion of adverse effects, absent reliable
evidence to the contrary. When subsidies are found to affect directly the price of the product and are
found to be contingent on exportati on and thus inherently trade distorti ng, it is legitimate to consider
that such subsidies have caused sales and price-re lated adverse effects. The Panel did not apply a
presumption that the export subsidies caused the ad verse effects found to exist. Instead, the Panel
first looked at the operation of the subsidies and the manner in which they were directly tied to sales
and prices of Boeing LCA. It then looked at the trade-distorting nature of the subsidies that were
found to be prohibited export subsidies. Even tho ugh the particular impact of export subsidies on
trade may depend on many factors, export subsidies are designed to affect trade and, by their nature
are likely to affect adversely competitors and thus to cause adverse effects on the market. Brazil
considers that it was therefore appropriate for the Panel to give considerable weight to the trade
distorting nature of these subsidies.

859European Union's appellee's submission, para. 492. (original emphasis; footnote omitted)
860Brazil's third participant's submission, para. 41.
861European Union's appellee's submission, para. 492. (original emphasis; footnote omitted)
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(iii) Collective assessment of the subsidies and their effects
384. Brazil submits that, in a proper serious prejudice analysis under Article 6.3 of the
SCM Agreement, the effects of subsidies can be assessed in a cumulative manner as long as they
manifest themselves collectively, in the sense that they have a sufficient nexus with the product and
the specific effects-related variable, irrespective of the "causal mechanism" through which they cause
this effect.
862
385. In Brazil's view, the Panel erroneously concl uded that it could cumulatively assess the effects
of subsidies only when the subsidies operate on th e basis of the same causal mechanism. Brazil
stresses that the SCM Agreement requires an assessment of the effects of "the subsidy" and not of each
separate subsidy measure in isolation. Accordingly, Brazil requests the Appellate Body to clarify that
there was no basis for the Panel's additional "causal mechanism" test, and that the approach of the
panel in US – Upland Cotton is an appropriate basis for conducting a cumulative assessment of the
effects of subsidies in a serious prejudice analysis . Under this approach, the effects of subsidies
should, if requested by the complainant, be asses sed in a cumulative manner as long as they manifest
themselves collectively, in the sense that they have a sufficient nexus with the product and the specific
effects-related variable. The likely effects of a subsidy are to be discerned by examining the nature,
structure, design, and operation of the subsidy. Brazil cautions that there exists a risk of
underestimating the joint effect of subsidies if th e Panel's additional "causal mechanism" test is
accepted, and shares the European Union's concern ove r the manner in which the Panel artificially
distinguished the effects of the aeronautics R&D subsidies for the Boeing 787 model from those of
the tax subsidies benefiting the 787, as both were ac knowledged to have a similar effect on prices and
sales of Airbus.
386. Brazil takes issue with the Panel's view that differences in the type of subsidies and the
allegedly different way in which they impact on the subsidized product implies that there is a
difference in the "nature" 863 of the subsidies that would prevent a cumulative assessment of their
effects. The relevant question was the particular re lationship of the subsidy with the product and with
the effects-related variable. In this dispute, bot h the aeronautics R&D subsidies and the tax subsidies
benefit a specific product model, the Boeing 787, and both types of subsidies have a direct impact on
Boeing's costs and thus on LCA prices and sales. Ev en if a sales-related tax credit may have a more
direct and immediate link with prices than an R& D subsidy, the existence of an established nexus
between both sets of the subsidies and the effects-related variable means that their cumulative

862Brazil's third participant's submission, para. 28.
863Brazil's third participant's submission, para. 34.
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assessment is permitted—in fact required, if the co mplainant so requests—in order to reflect properly
the effects of the subsidy. Brazil agrees with th e European Union that the discretion that a panel
enjoys in adopting a methodology is "not unlimited"
864, and emphasizes the case-specific nature of the
relevant analysis.
387. Brazil distinguishes, in this regard, the situa tion in this dispute from the situation in
US – Upland Cotton . In the context of that dispute, wh ere the question was whether the subsidies
impacted world market prices, it may have been appropriate to examine price-contingent and
non-price-contingent subsidies separately. But when the claim is, as in this case, a more general one
of lost sales and market displacement or im pedance through the presence of a technologically
advanced product at a low price that would not have been present in the market absent the subsidies, it
is appropriate to examine all subsidies that imp act on the production, sale, and price of the specific
product in an aggregate manner.
3. Canada
(a) Annex V to the SCM Agreement
388. At the oral hearing, Canada stated its view that the Panel was correct to limit its finding to
whether the Annex V procedure had been initiated, a nd not on how the procedure is to be initiated.
According to Canada, panel and A ppellate Body proceedings are not the proper fora to discuss how
the DSB is to initiate an Annex V procedure: this discussion should take place within the DSB itself.
(b) Financial contribution
(i) Scope of Article 1.1(a)(1) of the SCM Agreement
389. At the oral hearing, Canada agreed with th e Panel's conclusion that transactions properly
characterized as "purchases of services" are exclud ed from the scope of Article 1.1(a)(1) of the
SCM Agreement. Article 1.1(a)(1) sets out an exhaustiv e list of government practices that may
constitute a "financial contribution", and the omissi on of "purchase of services" must be given some
meaning, especially taking into account that the te rm was expressly included in earlier negotiating
drafts of this provision. The proper characterization of a transaction is a question of fact that must be
assessed on a case-by-case basis. In Canada's view, the Panel's approach in this case afforded the
flexibility required to identify transactions that take the form of services contracts, but are more
accurately characterized as one of the other cate gories of "financial contributions" listed in
Article 1.1(a)(1).

864European Union's appellee's submission, para. 725.
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(c) Specificity
(i) B&O tax rate reduction
390. At the oral hearing, Canada expressed its view that, in conducting its specificity analysis
under Article 2.1(a) of the SCM Agreement, the Panel properly examined the full context in which the
Washington State B&O tax rate reduction was provid ed in order to determine whether they formed
part of a larger programme. The requirement to co nsider the full context is found in the analytical
framework, containing a number of principles, set out in Article 2.1. With respect to Article 2.1(a), it
is only by examining the totality of the larger po licy and legal framework that a panel can properly
determine whether access to a subsidy is limited by th e granting authority, or the legislation pursuant
to which it operates. Likewise, under Article 2.1(b), the requirement to consider "objective criteria or
conditions" implies that a panel should determine whet her the subsidy at issue is provided pursuant to
a subsidy programme. As for Article 2.1(c), Canada noted that this provision expressly refers to the
subsidy programme for purposes of de facto specificity.
(ii) NASA/USDOD allocation of patent rights
391. As regards the Panel's analysis of the a llocation of patent rights under NASA/USDOD
contracts and agreements, Canada is of the view that the assessment of which government entity is the
"granting authority" for purposes of Article 2 of the SCM Agreement must begin with a correct
identification of the subsidy at issue. Under the ch apeau of Article 2.1, the "subsidy" is the "starting
point"
865 for the analysis of specificity. After fully assessing all the relevant facts surrounding the
granting of a subsidy, and hence properly identifying the subsidy in question, a panel may find that
the subsidy is provided pursuant to a broader programme. The panel must then assess the limitations
on access and use of the subsidy programme as a whol e in order to determine whether the subsidy is
"specific". In such cases, Canada submits, the result of the analysis of the limitations of the subsidy
programme should be the same irrespective of whether the "granting authority" is considered to be the
government as a whole or the particular administrative agency within that government.
(iii) City of Wichita IRBs
392. With respect to the City of Wichita IRBs, Cana da argues that the Panel erred in adopting an
approach that compares a given recipient's portion of the subsidy against the baseline of its relative
economic importance in the economy as a whole. In Canada's view, "such an approach would always

865Canada's third participant's submission, para. 40.
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allow disproportionality, and by extension, specificity to be found".
866 Instead, the Panel should have
compared Boeing's and Spirit's shares of the tota l subsidy programme with some measure of their
relative economic importance among the subsidy recipients.
393. Canada further submits that there are deficien cies resulting from the Panel's approach, which
would not arise if a baseline containing data rega rding only the subsidy recipients were adopted.
Although a focus on the subsidy recipients may no t indicate disproportionality where each recipient
receives a share of the subsidy proportionate to its economic importance relative to other recipients,
these amounts may be disproportionate under the Pane l's approach. The Panel sought to overcome
these deficiencies by requiring a "significant" disp arity between the ratios it compared. However,
Canada argues, this simply created further problems by providing no guidance about how to
determine whether a given disparity is "significant".
(d) Adverse effects
(i) Technology effects of the aeronautics R&D subsidies
394. Canada submits that the Panel did not make a proper assessment of whether Boeing:
(i) would have been willing to fund the R&D conducted through the aeronautics R&D subsidies in the
absence of the subsidies; (ii) had the financial cap acity to fund the R&D without the subsidies; and
(iii) could have conducted the R&D at issue with in the same timeframe in the absence of the
subsidies.867 In Canada's view, as a result of these analytical deficiencies in its counterfactual
analysis, the Panel improperly applied Articles 5(c) and 6.3 of the SCM Agreement and violated
Article 11 of the DSU.868
395. First, Canada recalls the Panel's statement th at "NASA's role in aeronautical research has
been explained precisely on the basis of, among other things, the large disincentives for private sector
investment in long term, high risk aeronautical R&D". 869 This statement directly contradicts the
Panel's subsequent observation that "the nature of th is kind of subsidy is that it is intended to multiply
the benefit from a given expenditure". 870 While the first statement s uggests that an investor would
receive limited direct benefits from investing its ow n funds in the type of R&D that was conducted by
Boeing using the aeronautics R&D subsidies, the s ubsequent observation implies that the investor
would capture the benefits of such an investment and that those benefits would be a multiple of the

866Canada's third participant's submission, para. 44.
867Canada's third participant's submission, para. 11.
868Canada's third participant's submission, para. 24.
869Panel Report, para. 7.1759.
870Panel Report, para. 7.1760.
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amount invested. The Panel, therefore, failed to resolve the inconsistency in its reasoning and
consequently failed to determine properly whet her Boeing would have b een willing, absent the
subsidies, to use its own resources in the R&D that it conducted using the aeronautics R&D subsidies.
396. Second, Canada contends that the Pane l improperly assessed whether Boeing had the
financial capacity to fund the R&D without the subs idies. Canada notes that the Panel "seem{ed} to
discount its own observation that the amount of the R&D subsidies is not significant as compared to
Boeing's financial resour ces and {R&D} expenditures"
871 when it stated that "this sort of numerical
comparison presupposes that the effects of the R&D s ubsidies can essentially be reduced to their cash
value, a proposition that we do not accept". 872 However, this statement concerns "the effects of the
R&D subsidies, not their amount".873 Moreover, the multiplied benefit that may result from R&D
expenditures does not increase the cost to Boeing of that R&D, and therefore "does not say anything
about Boeing's capacity to fund it itself".874
397. Third, Canada asserts that the Panel failed to provide a reasoned and adequate explanation for
its conclusion that "Boeing could not have conducted the {R&D} at issue within the same time frame
in the absence of the subsidies". 875 Such a conclusion is not apparent in the light of the following:
(i) the research conducted with R&D subsidies wa s necessary for the launch of the 787, as found by
the Panel876; (ii) it was established that Boeing wa nted to launch the 787 at the time it did 877; and
(iii) it can be assumed, as the Panel seems to ha ve done, that Boeing had the financial means to
conduct the necessary R&D.
(ii) Price effects of the tied tax subsidies
398. Canada asserts that the Panel conducted an im proper counterfactual analysis when finding
serious prejudice due to price effects. The Panel di d not appropriately consider the magnitude of the
tax subsidies and their impact, and that vitiated the Panel's entire causation analysis. The evidence put
forward by both the United States and the Europ ean Communities indicates that the amount of annual
subsidies during the reference period never exceeded 1 per cent of annual orders or sales revenue.
However, that evidence seems entirely at odds with the Panel's conclusion that the subsidies enabled
Boeing to lower its prices "beyond the level that would otherwise have been economically

871Canada's third participant's submission, para. 17.
872Panel Report, para. 7.1760.
873Canada's third participant's submission, para. 18. (original emphasis)
874Canada's third participant's submission, para. 18.
875Canada's third participant's submission, para. 21. (original emphasis)
876Canada's third participant's submission, para. 21 (referring to Panel Report, para. 7.1775).
877Canada's third participant's submission, para. 21 (referring to Panel Report, para. 7.1774 and
footnote 3704 thereto).
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justifiable".
878 The fact that the Panel was unable to determine with mathematical certitude the
precise degree to which the subsidies had affected Boeing's pricing did not excuse the Panel from its
responsibility to establish clearly a causal link before finding serious prejudice. Despite saying that it
would resort to "commonsense reasoning" and "the drawing of inferences" 879, the Panel failed, even
on a qualitative basis, to consider properly the magn itude of the tax subsidies and thus to establish a
causal link between those subsidies and Boeing's ability to lower its prices.
(iii) Collective assessment of the subsidies and their effects
399. At the oral hearing, Canada recalled that, in EC and certain member States – Large Civil
Aircraft, the Appellate Body indicated that, once a ge nuine and substantial relationship of cause and
effect has been established between one subsidy an d a listed market phenomenon, there need only be
a genuine causal link between the second subsidy and serious prejudice. It is not clear, however,
whether that link should be between the effects of the second subsidy and the effects of the first
subsidy (such as the launch of a new product), or between the second subsidy and a listed market
phenomenon (such as price suppression). In Canada's view , the first interpretation is preferred. Since
the Panel properly concluded that there was no genuine causal link between the B&O tax rate
reductions and the launch of the 787 in 2004, the Panel was justified in excluding the B&O tax rate
reductions from its serious prejudice finding as regard s the aeronautics R&D subsidies. However, in
Canada's opinion, the Panel failed to analyze pr operly whether there was a genuine causal link
between the effects of the remaining subsidies and the effects of the tied tax subsidies.
4. China
(a) Annex V to the SCM Agreement
400. China agrees with the Panel that the initia tion of an Annex V procedure does not "occur
automatically"880 upon request in the absence of any action taken by the DSB to initiate the procedure.
Paragraph 2 of Annex V makes clear that it is the DSB that must initiate the procedure and designate a
representative to facilitate the information-gather ing process. China, however, does not express a
view as to whether an Annex V procedure is initiated by the DSB by negative or positive consensus.

878Panel Report, para. 7.1818.
879Panel Report, para. 7.1820.
880China's third participant's submission, para. 4.
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(b) Specificity
(i) NASA/USDOD allocation of patent rights
401. China submits that, if multiple pieces of legisla tion are applicable to an alleged subsidy, the
broader legislation should be considered for the purpose of the de jure specificity analysis under
Article 2.1(a) of the SCM Agreement. There may well be cases where legislation provides a broadly
available measure, and agency-specific regulations implement the broader legislation. Nothing in
Article 2.1(a) precludes a panel from considering th e broader legislation since it is part of "the
legislation pursuant to which the granting authority operates".
881 China also believes that problems
may arise if a specific regulation is analyzed in isolation from the broader legislation, because
determinations of specificity will vary in respect of the same regime depending on how the legislation
is structured.
(ii) City of Wichita IRBs
402. As regards the City of Wichita IRBs, China submits that an effective disproportionality
comparison must be based on appropriate standards, which may include sales, output, investment, and
employment. China maintains that "the appropriate standards for each case may vary", and that it is
likely that "more than one standard should be considered in a single case". 882 In this case, China
disagrees with the benchmark advocated by the European Union, and considers that it "may result in a
finding of disproportionality where a subsidy is sufficiently and broadly available throughout an
economy".883 The term "disproportionately large amounts" must be read in the context of the entire
analytical framework of subparagraphs (a) through (c) of Article 2.1 of the SCM Agreement. The
European Union's approach would nullify Article 2. 1(b) by favouring a finding of specificity even
when objective criteria or conditions are applied. China asserts that the Panel's "significant
disparity"884 standard cannot resolve such a contradiction. By contrast, the approach advocated by
Australia before the Panel could properly serve as the basis for the disproportionality analysis.885
403. China considers that, irrespective of the standa rd and baseline chosen, the two circumstantial
factors identified in the third sentence of Article 2.1(c)—namely, the extent of diversification of
economic activities and the length of time duri ng which the subsidy programme has been in
operation—are critical to a disproportionality analysis, and therefore must be taken into account. In

881China's third participant's submission, para. 6.
882China's third participant's submission, para. 10.
883China's third participant's submission, para. 12.
884China's third participant's submission, para. 16.
885China's third participant's submission, paras. 13-15.
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addition to these two factors, other factors may need to be considered in certain circumstances. For
example, if the number of employees is selected as the benchmark indicator, the labour intensiveness
of the relevant industry should also be taken into account in a disproportionality analysis.
(c) Adverse effects
404. At the oral hearing, China noted that, in line with the Appellate Body's approach in US –
Upland Cotton , the Panel should have addressed the magn itude of the subsidy when evaluating
whether it caused serious prejudice. The term "significant" in Article 6.3(c) of the SCM Agreement
likewise implies an obligation for a panel to c onsider the magnitude of the subject subsidy
programme. Therefore, although China did not have a view as to whether, in this case, a subsidy of
approximately 1 per cent of the sales is enough to cause serious prejudice to Airbus, it did assert that
the magnitude of the tax subsidies needed to be addressed and considered by the Panel when
analyzing whether such subsidies have caused serious prejudice.
5. Japan
(a) Specificity
(i) NASA/USDOD allocation of patent rights
405. At the oral hearing, Japan disagreed with the European Union's contention that the Panel erred
when finding that the allocation of patent ri ghts under NASA/USDOD contracts and agreements is
not "specific" within the meaning of Article 2.1 of the SCM Agreement. Japan sees no reason why a
Member "as a whole" should be necessarily excluded from the scope of a "granting authority". Such
an approach risks limiting the scope of "granting au thority" to only the immediate entity granting the
subsidy, and runs counter to the broader objective of the SCM Agreement to identify and discipline
subsidization as it arises at each and every stage of government. Furthermore, the Panel correctly
determined that the legislation pursuant to whic h the granting authority operates extends beyond
NASA and USDOD internal regulations to the level of executive and federal laws and regulations.886
In this regard, Japan recalled that the Appellate Body in US – Anti-Dumping and Countervailing
Duties endorsed that panel's specificity analysis base d on the totality of the evidence. Japan also
noted that the European Union's concerns that the usage of "policy statements" would circumvent

886Japan's oral statement at the oral hearing (referring to Panel Report, para. 7.1293).
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disciplines of the SCM Agreement overlooks the possibility that the subsidy may still be found
de facto "specific".
887
(b) Adverse effects
(i) Technology effects of the aeronautics R&D subsidies
406. Japan first recalls that an evaluation of the nature, design, and operation of a subsidy is
"critical"888 towards establishing a "genuine and substan tial relationship of cause and effect" between
subsidization and alleged serious prejudice. Japan expresses concern in this regard about the manner
in which the Panel framed its adverse effects analys is of the aeronautics R&D subsidies—that is, by
focusing "narrowly" on the conceptu al issue of whether or not, "but for" the subsidies, Boeing would
have been able to launch the 787 with in the same timeframe that it did. 889 As a result, the Panel
ignored the "nature" of R&D subsidies, which "nor mally help recipients achieve their full potential
competitiveness" rather than "enable them to gain artificial price advantages". 890 According to Japan,
"it was by no means established in the Panel proceed ings that Boeing had in fact charged a lower
price than it would have"891 absent the aeronautics R&D subsidies.
407. Second, assuming arguendo that the aeronautics R&D subsidies can cause "serious prejudice"
to a WTO Member's trade interests, Japan submits that it is "unclear"892 what exact portion of an R&D
subsidy effectively passes thro ugh the production cycle of a Boeing LCA and causes the serious
prejudice phenomena alleged by the European Commun ities. Had the Panel meaningfully engaged in
the non-attribution arguments put forward by the United States, it would not have found a "genuine
relationship of cause and effect" between the aerona utics R&D subsidies and the alleged technology
effects.893 In Japan's view, the Panel's approach "r isks wrongfully criticizing WTO Members for the
productivity of their successful enterprises".894
408. Japan notes that the permissive wording of Article 6.3 of the SCM Agreement ("serious
prejudice … may arise") suggests that the effects of subsidies with a non-trade distortive nature,
design, and operation could be excluded from the assessment of serious prejudice. Japan urges the

887Japan's oral statement at the oral hearing (referring to European Union's appellant's submission,
para. 76).
888Japan's third participant's submission, para. 55.
889Japan's third participant's submission, para. 56.
891Japan's third participant's submission, para. 58.
892Japan's third participant's submission, para. 71.
893Japans' third participant's submission, para. 72 (referring to United States' other appellant's
submission, paras. 202, 222, 215, 229, and 236).
894Japan's third participant's submission, para. 73.
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Appellate Body to exercise caution in determining wh ether such subsidies are inconsistent with the
SCM Agreement due to their incidental price effects, partic ularly in situations where the subsidies, in
the long run, will lead to the development of safer technologies and, ultimately, the optimal use of
world resources.
(ii) Price effects of the tied tax subsidies
409. Japan maintains that the Panel failed to draw any meaningful link between the relevant tax
subsidies and their alleged price-suppressive effects. While recognizing that the particularities of this
case may have prevented the Panel from constructing a counterfactual scenario to evaluate the impact
of the subsidies, Japan considers that the Pa nel could and should have provided a convincing
indication of the degree of significant price suppression in the affected LCA markets. In addition, if
the Panel presumed that the FSC/ETI subsidies cause serious prejudice because they are prohibited
export subsidies, then Japan agrees with the United States that this was an impermissible "shortcut"
895
by the Panel that is not supported by either the text or structure of the SCM Agreement.
410. According to Japan, a proper causal relationship cannot be established on the basis of the
nature of the subsidies, the possibility of pr ice and sales fluctuations, economic assumptions, and
policy statements by public officials. Despite th e challenges involved in conducting a price effects
analysis, the Panel erred by not indicating the degree or magnitude of the price-suppressive effects, or
providing a more tangible indication of the meaning of the qualifier "significant" in this case. The
Panel relied too heavily on "commonsense" in concl uding that increased sales to Boeing translated to
lost or "significantly suppressed" sales for Airbus, without tying the "significance" of the effect of the
subsidies to any indicative numerical threshold.
896 The nature of global LCA markets does not justify
the lack of any finding on the degree of price s uppression in the markets. Japan expresses support for
the United States' argument that the tax subsidies were "too small relative to Boeing's order revenues
to have affected Boeing's pricing to a degree that would lead to it winning sales that it would not have
won"897 absent the subsidies.

895Japan's third participant's submission, para. 82 (referring to United States' other appellant's
submission, paras. 338 ff).
896Japan's third participant's submission, para. 86.
897Panel Report, para. 7.1814 (referring to United States' first written submission to the Panel,
para. 815).
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(iii) Collective assessment of the subsidies and their effects
411. Japan underscores the importance of the nature of a subsidy for the determination of whether
the effects of various types of subsidies can be aggregated in a serious prejudice analysis. Japan
expresses concern that the approach to aggregation advanced by the European Union would result in a
dilution of the "genuine and subs tantial relationship" causal standard, and to a potentially infinite
range of subsidies being too easily found to have caused "serious prejudice".
412. For Japan, the nature of a subsidy is fundament al in evaluating whether a subsidy is capable
of causing the alleged serious prejudice phenomen a and in determining whether the effects of
different subsidies should be assessed on a cumulative basi s. Prior panels have referred to the need to
establish a "sufficient nexus" between the subsidized pr oduct and the alleged effects, or to ensure that
the subsidies at issue "complemented and supplemente d" another category of subsidies found to have
caused a relevant effect when the subsidies at i ssue had a genuine causal connection with such an
effect.
898 Both standards are articulations of the sa me overarching principle, that panels must
establish a "genuine causal connection" between the particular subsidized product and the relevant
effects-related variable. Thus, the Panel in this case was under an obligation to ensure that the alleged
serious prejudice "result{ed} from a chain of cau sation that is linked to the impugned subsidy" 899 in
respect of the tied tax subsidies, the aeronautics R& D subsidies, and the remaining subsidies. Japan
considers that the Panel discharged this obligation correctly in some respects, but failed to conduct a
proper causal analysis in others.
413. Japan asserts that the Panel was correct to decide not to aggregate the effects of the
aeronautics R&D subsidies and the tax subsidies, given the Panel's finding that these subsidies operate
through entirely distinct causal mechanisms. Jap an disagrees with the European Union's argument
that a panel "must assess—quantitatively or qualita tively—whether the collective competitive impact
of the different (groups of) subsidies at issue amounts to adverse effects" 900, and is concerned that an
endorsement by the Appellate Body of this position would result in the aggregation of the effects of
subsidies that are fundamentally different in nature , and in the near-automatic inference of a causal
link between different subsidies and an alleged "serious prejudice" phenomenon.

898Respectively, Panel Report, US – Upland Cotton , para. 7.1192 and Panel Report, EC and certain
member States – Large Civil Aircraft, para. 7.1956.
899Japan's third participant's submission, para. 17 (quoting Appellate Body Report, US – Upland Cotton
(Article 21.5 – Brazil), para. 372).
900Japan's third participant's submission, para. 22 (quoting European Union's appellant's submission,
para. 202).
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414. Japan disagrees with the Eur opean Union's understanding of previous WTO rulings on the
issue of aggregation. It notes that the panel in US – Upland Cotton explicitly stated that, in the light
of the facts and circumstances of a given case, an integrated examination of the effects of any
subsidies is permissible only when there is a "su fficient nexus" between the subsidized product and
the particular effects-relate d variable under examination.
901 That panel added that it did not
understand the panel in Indonesia – Autos to have suggested that the effects of all challenged
subsidies in existence more or less contemporane ously and with any connection whatsoever with a
subsidized product must be aggregated in a serious prejudice analysis. 902 Moreover, the Appellate
Body in US – Upland Cotton did not, as the European Union claims , suggest that it was important to
aggregate the effects of the price-contingent and the non-price-contingent subsidies. Rather, the
Appellate Body merely reiterated that the particular facts and circumstances of the case determine
whether there is a "sufficient nexus" with the subsid ized product and the effects-related variable being
examined, and stressed that "the nature of the subsidy plays an important role in any analysis of
whether the effect of the subsidy is significant price suppression".903
415. Japan further notes that, in EC and certain member States – Large Civil Aircraft , the
Appellate Body allowed for the possibility of aggr egation insofar as there is a "genuine causal
connection" between the subsidies and the alle ged serious prejudice, and that the subsidies
complement and supplement the effect of other subs idies for the product. Japan also points out that
all of the subsidies that were aggregated in that dispute were considered to have the same effects—
effects that were analogous to the "technology eff ects" claimed by the Eur opean Communities in this
dispute. Indeed, before the Panel, the Eur opean Communities premised its arguments on the
differences in the nature and effect of the subsid ies, arguing that the tax subsidies provide Boeing
"with the ability to charge very low prices", wh ereas the aeronautics R&D subsidies "helped Boeing
develop, launch and produce a technologically-advanced 200-300 seat LCA much more quickly than
it could have on its own". 904 Furthermore, the Panel made factual findings that the aeronautics R&D
subsidies have "technology effects", whereas the tax subsidies have only "price effects". Given these
findings on the different nature and effects of th e aeronautics R&D subsidie s and the tax subsidies,
Japan submits that the Panel correctly determined that the effects of these two groups of subsidies
cannot be aggregated.

901Japan's third participant's submission, para. 26 (referring to Panel Report, US – Upland Cotton ,
para. 7.1192 and footnote 1308 thereto).
902Japan's third participant's submission, para. 26 (referring to Panel Report, US – Upland Cotton ,
footnote 1308 to para. 7.1192, in turn referring to Panel Report, Indonesia – Autos, para. 14.206).
903Japan's third participant's submission, para. 28 (quoting Appellate Body Report, US – Upland
Cotton, para. 450). (emphasis added by Japan)
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416. Japan observes that the issue of the aggregation of the effects of the tied tax subsidies and the
effects of the remaining subsidies is very different from the issue of the aggregation of the effects of
the aeronautics R&D subsidies with the effects of the tax subsidies. The reason for this is that the
European Communities argued that both the remaini ng subsidies and the tied tax subsidies contribute
to "price effects". Japan invites the Appellate Body to re-examine carefully, in accordance with the
approach taken in EC and certain member States – Large Civil Aircraft , whether there is a "genuine
causal connection" between the effects of the remain ing subsidies and the price effects caused by the
tied tax subsidies. In doing so, the Appellate Body should take account of the following three points.
417. First, any subsidy has, by nature, the effect of lowering the prices of the subsidized products,
indirectly or directly, to a greater or lesser extent. The Appellate Body's refusal in US – Upland
Cotton to reverse the panel's finding that the effects of the non-price-contingent subsidies could not be
aggregated with the price-contingent subsidies should be understood as a re jection of the proposition
that "price effects" alone are sufficient to satisfy the requirement of a "genuine causal connection" or a
"sufficient nexus" between the subsidy at issue and th e particular effects-related variable. Second, the
Appellate Body has repeatedly emphasized, and bo th the parties and the Panel in this dispute
recognized, the importance of the nature of the subsid ies for the analysis of causation. Third, Japan
contrasts the strict requirement for aggrega tion advocated by the European Union in the EC and
certain member States – Large Civil Aircraft dispute (only subsidies that were "necessary" to enable
the launch of a particular product could be aggregated with other subsidies enabling or facilitating
such a product launch) with the European Union's pos ition in this dispute, which "seeks to effectively
reduce the standard for aggregating the effect s of various subsidies to the lowest common
denominator, i.e. price".
905 Noting that the European Union seems to have "dramatically shifted gears
on the issue of aggregation" 906, Japan submits that neither extreme reflects the proper standard,
namely, that the effects of differe nt subsidies may be aggregated when they both involve a "genuine
and substantial relationship of cause and effect", as demonstrated through a rigorous examination of
the nature, design, and operation of the subsidies at issue in a given dispute.

905Japan's third participant's submission, para. 52 (referring to Panel Report, para. 7.1697).
906Japan's third participant's submission, para. 53.
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6. Korea
(a) Annex V to the SCM Agreement
418. Although Korea does not express a view as to how an information-gathering procedure under
Annex V to the SCM Agreement must be initiated, it makes two observations regarding the claim
presented by the European Union. First, Korea cons iders that a determination of lack of cooperation
should be made "with reality and practicality in mind". 907 Paragraph 8 of Annex V requires a panel to
consider "the reasonableness of any requests for information and the efforts made by parties to
comply with these requests in a cooperative and timely manner". In Korea's view, this means that the
determination of non-cooperation cannot be made in a "vacuum". 908 The SCM Agreement "does not
provide a carte blanche"909 to a panel whenever it encounters less than optimal information from a
responding Member. Korea also considers that it may be unrealistic for a party to pose hundreds of
questions and make hundreds of requests and ex pect the other party to respond and provide
information in due course. In sum, Korea agrees wi th the Panel's conclusion that it did not need to
rule on the question of whether the United States c ooperated with the Annex V procedure to resolve
the substantive questions before it.910
419. Second, Korea contends that the provisions in Annex V should not be interpreted to mean that
a panel or a facilitator somehow "effectively ca rries the burden of proof for the complainant". 911
Although Annex V provides an important tool for developing information concerning serious
prejudice, it is the complaining Member that must provide the legal and factual bases for the claims it
makes. Annex V should not be construed "to li ghten the burden of proof for the complainant". 912
Otherwise, Korea cautions, a panel proceeding ma y become a "fishing expedition in which the
claimant brings a case first and then develops the factual and legal bases of the case as it goes
along".
913
420. At the oral hearing, Korea expressed the view that the initiation of an Annex V procedure and
the appointment of a DSB representative as facilitator require at least some positive action on the part
of the DSB. In this vein, and setting aside the controversy between negative and positive consensus,
Korea submits that the absence of any action on the part of the DSB to initiate the Annex V procedure
would lead to the only plausible conclusion that the procedure was never initiated. Korea adds that an

907Korea's third participant's submission, para. 26.
908Korea's third participant's submission, para. 26.
909Korea's third participant's submission, para. 28.
910Korea's third participant's submission, para. 29 (referring to Panel Report, para. 7.38).
911Korea's third participant's submission, para. 32.
912Korea's third participant's submission, para. 35.
913Korea's third participant's submission, para. 36.
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Annex V procedure does not have the formalistic stat us of the panel procedure and, thus, it does not
seem proper to transfer the rules found in the panel procedure to the fact-gathering process.
(b) Specificity
(i) NASA/USDOD allocation of patent rights
421. At the oral hearing, Korea argued that the mere fact that a programme is administered by
an agency, in and of itself, does not necessarily m ean that the specificity test should be conducted
at the agency level. It is not uncommon for g overnmental programmes to have multiple agencies
implementing the governmental scheme adopted at the national level. Article 2 of the
SCM Agreement requires an inquiry into the genuine nature of the subsidy programme at issue. In
this regard, the way in which a particular progra mme actually operates in the country at issue is
perhaps a critical criterion that should guide a pane l's specificity analysis. The evidence on the record
in this case seems to support the conclusion that th e US patent allocation programme is administered
at the national level and, therefore, the Panel's fi nding is correct in the circumstances of this case.
Korea further notes that the Panel's conclusions regarding the operation of the programme arguably
constitute a factual finding that was within the bounds of the Panel's discretion.
(c) Adverse effects
(i) Technology effects of the aeronautics R&D subsidies
422. Korea shares the view of the United Stat es that the causal relationship between the
aeronautics R&D programmes at issue and the alle ged market phenomenon must be confirmed to
exist, and that the relationship should rise to "the level of a genuine and s ubstantial relationship of
cause and effect".
914 The mere existence of causal relations hip is not sufficient. The relationship
must be "direct rather than remote, and the impact should be substantial rather than incidental".915
423. Korea asserts that R&D programme s play a central role in th e economic development and/or
academic enhancement of many Members, and are therefore likely to be closely related to the pursuit
of legitimate public policies. The dividing line be tween a government's legitimate function and R&D
subsidies that may be WTO-inconsistent is often not entirely clear. In this regard, Korea points out
that the Doha Development Agenda includes the re surrection of non-actionable subsidies, including
R&D programmes. Korea recognizes that sometimes R&D programmes constitute subsidies that fall

914Korea's third participant's submission, para. 22 (quoting United States' other appellant's submission,
para. 217).
915Korea's third participant's submission, para. 22.
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within Articles 1 and 2 of the SCM Agreement. Nevertheless, it cons iders that genuine R&D
programmes deserve and require careful scrutiny by the reviewing panel and the Appellate Body.
(ii) Collective assessment of the subsidies and their effects
424. At the oral hearing, Korea stated its view th at, in an adverse effects analysis, it is not
appropriate to aggregate the effects of two subsid ies that have caused different effects and which do
not share a close nexus in terms of their effects. The Panel's decision not to aggregate the effect of the
B&O tax rate reduction and the effects of the aeronau tics R&D subsidies is consistent with its finding
that these subsidies are distinct and separate in term s of their effects, as they operate through entirely
distinct causal mechanisms.
III. Issues Raised in This Appeal
425. The following issues are raised by the European Union in its appeal:
(a) Whether the Panel erred in denying the Eu ropean Communities' request for certain
preliminary rulings with respect to the absence of an information-gathering procedure
under Annex V to the SCM Agreement in this dispute, and, if so, whether the
Appellate Body should rule on how the DSB is to initiate such procedures, and should
make findings in connection with the alle ged non-cooperation of the United States in
the information-gathering procedure, and the United States' alleged withholding of
information from the European Communities and the Panel;
(b) Whether the Panel erred in finding that tran sactions that are properly characterized as
"purchases of services" are excluded from the scope of Article 1.1(a)(1)(i) of the
SCM Agreement;
(c) Whether, on the assumption that the allocation of patent rights under NASA and
USDOD R&D procurement contracts and agre ements constitutes a subsidy, the Panel
erred in finding that such allocation is not specific within the meaning of Article 2 of
the SCM Agreement;
(d) Whether the Panel erred in its interpretati on and application of Articles 5(c) and 6.3
of the SCM Agreement by:
(i) failing to assess collectively the effects of the B&O tax rate reductions and
the effects of the NASA and USDOD aeronautics R&D subsidies in the
200-300 seat LCA market; and
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(ii) failing to assess collectively the effects of the tied tax subsidies (the FSC/ETI
subsidies and the B&O tax rate reduc tions) and the effects of the eight
remaining subsidies in the 100-200 seat and the 300-400 seat LCA markets;
and
(e) Whether, in finding that there was insufficient evidence on the record of the effects of
the USDOD assistance instruments funded by the 21 USDOD RDT&E programmes
other than the ManTech and DUS&T programme s, and in failing to take account of
the effects of those 21 programmes in its a dverse effects analysis, the Panel failed to
make an objective assessment of the matter as required under Article 11 of the DSU.
426. The following issues are raised by the United States in its other appeal:
(a) With respect to the NASA R&D measures:
(i) whether, in the application of its test for determining whether a transaction
constitutes a purchase of services, the Panel erred in finding that the
payments provided to Boeing pursuant to the NASA R&D procurement
contracts at issue constitute direct transfers of funds, and thus financial
contributions, within the meaning of Article 1.1(a)(1)(i) of the
SCM Agreement; and whether, in so proceedi ng, the Panel failed to make an
objective assessment of the matter as required under Article 11 of the DSU;
(ii) whether the Panel erred in finding that the access to facilities, equipment, and
employees provided to Boeing under th e NASA R&D procurement contracts
at issue constitutes a provision of goods or services, and thus a financial
contribution, within the meaning of Article 1.1(a)(1)(iii) of the
SCM Agreement;
(iii) whether the Panel erred in finding that the payments and access to facilities,
equipment, and employees provided to Boeing under the NASA R&D
procurement contracts at issue conferred a benefit on Boeing within the
meaning of Article 1.1(b) of the SCM Agreement; and
(iv) whether, by not excluding $280 million of payments for research that NASA
had determined was unrelated to the European Communities' claims from its
valuation of benefit, the Panel erred in its application of Article 1.1(b) of the
SCM Agreement;
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(b) With respect to the USDOD R&D measures:
(i) whether, in the application of its test for determining whether a transaction
constitutes a purchase of services, the Panel erred in finding that the
payments provided to Boeing pursuant to the USDOD RDT&E assistance
instruments at issue constitute direct transfers of funds, and thus financial
contributions, within the meaning of Article 1.1(a)(1)(i) of the
SCM Agreement;
(ii) whether the Panel erred in finding that the access to facilities provided to
Boeing under the USDOD RDT&E assistance instruments at issue constitutes
a provision of goods or services, and thus a financial contribution, within the
meaning of Article 1.1(a)(1)(iii) of the SCM Agreement;
(iii) whether the Panel erred in finding that the payments and access to facilities
provided to Boeing under the USDOD RDT&E assistance instruments
conferred a benefit on Boeing within th e meaning of Article 1.1(b) of the
SCM Agreement; and
(iv) whether the Panel failed to make an objective assessment of the matter, as
required under Article 11 of the DSU, when it stated in paragraph 7.1205 of
its Report that it did "not consider it credible that less than 1 per cent of the
$45 billion in aeronautics R&D funding that {US}DOD provided to Boeing
over the period 1991-2005 had any potential relevance to LCA";
(c) With respect to the Washington State B&O tax rate reduction:
(i) whether the Panel erred in finding that this tax rate reduction constitutes the
foregoing of government revenue othe rwise due, and t hus a financial
contribution, within the meaning of Article 1.1(a)(1)(ii) of the
SCM Agreement; and
(ii) whether the Panel erred in finding that this tax rate reduction is specific
within the meaning of Article 2.1(a) of the SCM Agreement;
(d) Whether the Panel erred in finding that ta x abatements associated with industrial
revenue bonds granted by the City of Wichita are specific within the meaning of
Article 2.1(c) of the SCM Agreement;
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(e) Whether the Panel erred in finding that the NASA and USDOD aeronautics R&D
subsidies caused, through their technology effects, serious prejudice to the interests of
the European Communities, within the meaning of Articles 5(c) and 6.3(b) and (c) of
the SCM Agreement, in the 200-300 seat LCA market in the form of significant price
suppression, significant lost sales, and a thre at of displacement and impedance of
exports of Airbus LCA in third-country markets. In particular:
(i) whether the Panel erred in its interpretation and application of these
provisions by:
- finding that the NASA and USDOD aeronautics R&D subsidies contributed
in a "genuine and substantial" way to Boeing's development of technologies
for the Boeing 787 by 2004;
- failing to conduct a proper counterfactua l analysis and finding that, absent the
NASA and USDOD subsidies, Boeing would not have developed the
technologies for the Boeing 787 by 2004 and Airbus would not have suffered
a threat of displacement and impedance, significant lost sales, and significant
price suppression;
- "double-counting" lost sales, and fa iling to conduct a proper non-attribution
analysis, with respect to its finding of significant lost sales;
- failing to establish the existence of relevant third-country markets with
respect to its finding of threat of displacement and impedance; and
- failing to conduct a proper price suppression analysis with respect to the
A330, the Original A350, and the Airbus 200-300 seat LCA market; and
(ii) whether in referring, in paragraph 7. 1772 of the Panel Report, to "the
importance of the knowledge and experience that Boeing obtained pursuant
to the aeronautics R&D subsidies as an integrator of the various
technologies", the Panel failed to make an objective assessment of the matter
as required under Article 11 of the DSU; and
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(f) Whether the Panel erred in finding that th e FSC/ETI subsidies and the B&O tax rate
reductions caused, through their price effects, serious prejudice to the interests of the
European Communities, within the meaning of Articles 5(c) and 6.3(b) and (c) of the
SCM Agreement, in the 100-200 seat and 300-400 seat LCA markets in the form of
significant price suppression, significant lost sales, and displacement and impedance
of exports of Airbus LCA in third-country markets. In particular:
(i) whether the Panel erred in its interpretation and application of Articles 5(c)
and 6.3(b) and (c) by:
- relying on a presumption that prohibited subsidies cause serious prejudice;
- failing to assess properly the magnitude of the subsidies;
- failing to conduct a proper counterfactual analysis;
- failing to assess other factors potentially causing serious prejudice;
- failing to consider price trend data with respect to its finding of significant
price suppression;
- failing to identify sales with respect to its finding of significant lost sales;
and
- failing to establish and identify relevant third-country markets with respect to
its finding of displacement and impedance; and
(ii) whether, in failing to identify either the sales campaigns in which the
FSC/ETI subsidies and B&O tax rate reductions caused significant lost sales
or the third-country markets in whic h those subsidies caused displacement
and impedance, the Panel failed to se t out the basic rationale behind its
finding as required under Article 12.7 of the DSU.
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IV. The Measures at Issue
A. Introduction
427. This dispute concerns a challenge brought by the European Communities against a broad
array of subsidies allegedly provided by the Unite d States to The Boeing Company in relation to the
manufacture of large civil aircraft ("LCA"). In particular, the European Communities challenged
subsidies allegedly provided by th e US Federal Government; the States of Washington, Kansas, and
Illinois; the counties of Snohomish (Washington) and Cook (Illinois); and the cities of Everett
(Washington), Wichita (Kansas), and Chicago (Illinois).
428. The European Communities claimed before th e Panel that each challenged measure is a
specific subsidy within the meaning of Articles 1 and 2 of the SCM Agreement, and that the
United States, through the use of these subs idies, has caused adverse effects to the
European Communities' interests within the meaning of Articles 5 and 6 of the SCM Agreement. In
addition, the European Communities claimed that some of the Washington State tax incentives and
the Foreign Sales Corporation ("FSC")/extraterritori al income ("ETI") tax exemptions are prohibited
export subsidies within the meaning of Article 3 of the SCM Agreement.
429. Because of the large number of claims made and measures challenged, and in order to provide
some background to and context for our findings in this appeal, we consider it useful to provide an
overview of the measures at issue in this appeal. For a more detailed account of the measures at issue,
direct reference should be had to the Panel Report.
B. US Federal Government Measures
430. Before the Panel, the European Communitie s challenged certain support for aeronautics
research and development ("R&D") provided to Bo eing by the US National Aeronautics and Space
Administration ("NASA"), the US Department of Defence ("USDOD"), and the US Department of
Commerce ("USDOC"), as well as certain support fo r training provided by the US Department of
Labor ("USDOL"). The Panel found that the payments provided to Boeing by the USDOC
constituted subsidies within the meaning of Article 1.1 of the SCM Agreement.
916 Nevertheless, the
Panel concluded that the European Communities had failed to demonstrate that these subsidies were
specific within the meaning of Article 2 of the SCM Agreement.917 Similarly, the Panel found that the
training funds provided by the USDOL were a subsidy, but that the European Communities had not

916Panel Report, para. 7.1230.
917Panel Report, paras. 7.1256 and 7.1257.
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established that such subsidy was specific within the meaning of Article 2 of the SCM Agreement.
918
Neither participant has appealed the Panel's findings with respect to the support provided by either the
USDOC or the USDOL, and thus the USDOC's and USDOL's programmes are not further addressed
in this Report. Before the Panel, the European Communities also challenged funds provided by both
NASA and the USDOD to reimburse Boeing for inde pendent research and development ("IR&D")
expenditures and bid and proposal ("B&P") costs. The Panel found that the European Communities
had failed to establish the existence of such measures. 919 This finding has not been appealed, and we
therefore do not further discuss these measures.
431. We describe below the NASA and USDOD measures that are at issue in this appeal. We also
address the allocation of patent rights under the NASA and USDOD measures and the tax exemptions
under the FSC and successor legislation, which are also implicated in this appeal.
1. Aeronautics R&D Measures
(a) NASA
432. The Panel understood that the measures cha llenged by the European Communities are
"payments" and "free access to NASA facilities, eq uipment and employees" that NASA provided to
Boeing through R&D contracts and agreements 920 entered into with Boeing under the following eight
aeronautics R&D programmes: (i) Advanced Com posites Technology ("ACT"); (ii) High Speed
Research ("HSR"); (iii) A dvanced Subsonic Technology ("AST"); (iv) High Performance
Computing and Communications ("HPCC"); (v) Av iation Safety ("AS"); (vi) Quiet Aircraft
Technology ("QAT"); (vii) Vehicle Systems ("VS "); and (viii) Research and Technology Base
("R&T Base").921

918Panel Report, paras. 7.1374 and 7.1375.
919Panel Report, paras. 7.1352 and 7.1353.
920With respect to payments, the European Communities noted that "NASA … generally provide{s}
funding for LCA-related R&D through what {it} call{s} ' contracts,' but what are in reality grants to
Boeing/{McDonnell Douglas} for LCA-related R&D expenses". With respect to access to facilities, equipment,
and employees, the European Communities submitted th at "NASA provides these 'goods and services' in
conjunction with the various contractual instruments (i.e. Space Act Agreements and other contracts) it enters
into with Boeing under the eight NASA aeronautics R&D programs challenged in this dispute". (Panel Report,
footnote 2406 to para. 7.944 (quoting European Communitie s' first written submission to the Panel, para. 457;
and European Communities' response to Panel Question 148, para. 171, respectively) (emphasis added))
921Panel Report, para. 7.944 (referring to European Communities' first written submission to the Panel,
para. 476).
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433. The Panel further observed that the R&D cont racts and agreements entered into between
NASA and Boeing under these eight programmes fall in to two categories. The first category is
"procurement contracts"
922, which, under US law and regulations, are used "only where the 'principal
purpose' of the activity is the 'acquisition of goods or services' for the 'direct benefit or use' of the
U.S. Government".923 The second category is instruments undertaken by NASA pursuant to its
authority under the National Ae ronautics and Space Act of 1958 924 (the "Space Act"), which
authorizes NASA "to enter into and perform such contracts, leases, and cooperative agreements or
other transactions as may be necessary in the conduct of its work". 925 The Panel referred to
agreements between NASA and Boeing undertaken pursuant to this authority as "Space Act
Agreements".926
434. The Panel concluded that the payments and access to facilities, equipment, and employees
that NASA provided to Boeing through the eight aeronautics R&D programmes at issue constitute
specific subsidies within the meaning of Articles 1 and 2 of the SCM Agreement.927 The Panel
estimated the total amount of the subsidies over the 1989-2006 period to be $2.6 billion, of which
$1.05 billion corresponds to payments under R&D c ontracts, and $1.55 billion corresponds to access
to facilities, equipment, and employees under R&D contracts and agreements.928

922The Panel noted that the majority of the trans actions between NASA and Boeing under the eight
aeronautics R&D programmes at issue are "procurement cont racts". However, in a few cases, the transactions
between NASA and Boeing under these programmes have been in the form of wh at are termed "assistance
instruments" under US law, and more specifically "cooperative agreements". (Panel Report, footnote 2408 to
para. 7.945 (referring to Panel Exhibit US-1245, containing a list of NASA contracts with Boeing))
923Panel Report, para. 7.945.
924Supra, footnote 46.
925The NASA policy regarding the Space Act Agreements is set out in NASA Policy Directive 1050.1H
(Panel Exhibit US-108). The Space Act authorizes NASA "to enter into an d perform such contracts, leases,
cooperative agreements, or other transactions as may be necessary in the conduct of its work and on such terms
as it may deem appropriate, with any agency or instrumentality of the United States, or with any State, territory,
or possession, or with any political subdivision thereof, or with any person, firm, association, corporation, or
educational institution". The term "Space Act Agreemen ts" refers to agreements that NASA enters into
pursuant to the "other transactions " authority provided by the Space Ac t. NASA's policy directive governing
Space Act Agreements explains:
Under its Space Act authority, NASA has entered into a great number of
agreements with diverse groups of people and organizations, both in the
private and public sector, in order to meet wide-ranging NASA mission and
program requirements and objectives . It is NASA's policy to utilize the
broad authority granted to the Agen cy in the Space Act to further the
Agency's missions.
(Panel Report, footnote 2410 to para. 7.945 (emphasis added by the Panel))
926Panel Report, para. 7.976. The European Commun ities did not challenge the supply of goods and
services under the Space Act Agreements to the extent that Boeing paid ca sh in exchange for those goods and
927Panel Report, para. 7.1110.
928Panel Report, para. 7.1109.
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(b) USDOD
435. The European Communities also challenged funding and ac cess to facilities provided by the
USDOD to Boeing to perform R&D related to "dual-use" technologies—that is, research applicable to
both military and commercial airc raft—through contracts and other instruments under the USDOD
Research, Development, Test, and Evaluation Program (the "RDT&E programme").
436. The Panel explained that the scope of the Eu ropean Communities' challenge was "relatively
narrow in several respects".
929 First, it noted that the European Communities did not challenge the
RDT&E programme "as a whole", but rather cha llenged "only certain funding" provided to Boeing
under the 23 USDOD RDT&E programmes 930 at issue and, within these programmes, only the subset
of funding that was, in the European Communities' view, related to dual-use technologies. 931 Second,
the Panel observed that the European Co mmunities' challenge was limited to the payments that the
USDOD provided to Boeing for the purpose of pe rforming R&D and did not include the USDOD's
purchase of military aircraft from Boeing. 932 Finally, the Panel pointed out that, as with the NASA
aeronautics R&D measures, the European Comm unities challenged both USDOD payments and
access to facilities under the 23 USDOD RDT&E progra mmes. However, the Panel observed that,
whereas the European Communities' panel request refers, in the case of NASA, to access to "facilities,
equipment and employees", in the case of the USDOD, it refers only to access to "facilities".933

929Panel Report, para. 7.1116.
930In particular, the European Communities challenged funding pursuant to 13 "general aircraft"
programmes and 10 "military aircraft" programmes. (Panel Report, footnote 2660 to para. 7.1114)
931Panel Report, para. 7.1117.
932Panel Report, para. 7.1118. The Panel stated that "the European Communities' claim {was} clearly
limited to payments … provided to Boeing—as distinguished from a broader challenge to the {US}DOD
{RDT&E} programmes per se, and as distinguished from a challenge to a subsidy provided to a broader
industry, e.g. the U.S. military aircraft industry." (Ibid., para. 7.1119 (original underlining))
933Panel Report, para. 7.1120.
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437. The Panel distinguished two types of arrangements between the USDOD and Boeing.
934 Like
NASA, the USDOD entered into "pro curement contracts" with Boeing. 935 The other category of
instruments was referred to by the Panel as "assistance instruments"936, which comprised "cooperative
agreements"937, "technology investment agreements"938, and "certain other transactions".939 The Panel
noted that, under US law, "assistance" is defined as "{ t}he transfer of a thing of value to a recipient to
carry out a public purpose of support or stimulation authorized by a law of the United States".940
438. The Panel concluded that payments and access to USDOD facilities provided to Boeing under
USDOD procurement contracts are not financial contri butions within the meaning of Article 1.1(a)(1)
of the SCM Agreement.941 However, the Panel found that the payments and access to USDOD
facilities provided to Boeing under USDOD assist ance instruments through the 23 aeronautics

934Panel Report, para. 7.1140. The general statutory authority for all R&D activities engaged by the
USDOD by "contract", "grant", or "c ooperative agreement" is found in United States Code , Title 10,
section 2358(a) (Panel Exhibit US-1205), which provides:
The Secretary of Defense or the Secr etary of a military department may
engage in basic research, applied research, advanced research, and
development projects that--
(1) are necessary to the responsibilities of such Secretary's department in the
field of research and development; and
(2) either--
 (A) relate to weapon systems and other military needs; or
 (B) are of potential interest to the Department of Defense.
935Panel Report, para. 7.1142. See United States Code of Federal Regulations, Title 32, section 21.605
(Acquisition): "The acquiring (by purchase, lease, or barter) of property or services for the direct benefit or use
of the United States Government … In accordance with 31 U.S.C. 6303, procurement contracts are the
appropriate legal instruments for acquiring such property or services." (emphasis added by the Panel)
See also United States Code of Federal Regulations , Title 32, section 21.670 (Procurement contract) (Panel
Exhibit US-22).
936Panel Report, para. 7.1142. See United States Code of Federal Regulations, Title 32, section 21.615
(Assistance) (Panel Exhibit US-22): "The transfer of a thing of value to a recipient to carry out a public purpose
of support or stimulation authorized by a law of the United States … Grants, cooperative agreements, and
technology investment agreements are examples of legal instruments us ed to provide assistance." (emphasis
added by the Panel)
937Panel Report, para. 7.1142. See United States Code of Federal Regulations, Title 32, section 21.640
(Cooperative agreement) (Panel Exhibit US-22): "A legal instrument which, consistent with 31 U.S.C. 6305, is
used to enter into the same kind of relationship as a grant …, except that substantial involvement is expected
between the Department of Defense and the recipient when carrying out the activity contemplated by the
cooperative agreement." (emphasis added by the Panel)
938United States Code of Federal Regulations , Title 32, part 37 is entitled "Technology investment
agreements". Section 37.205 provides that a technology investment agreement may be used where the "grants
officer" concludes: "… that the principal purpose of the project is stimulati on or support of research ( i.e.,
assistance), rather than acquiring goods or services for the benefit of the Government (i.e., acquisition)". (Panel
Report, para. 7.1143 (emphasis added by the Panel))
939The Panel noted the United States' explanation that United States Code, Title 10, section 2371 is the
authority for R&D projects using "other transactions", th at is, transactions other than contracts, cooperative
agreements, and grants. (Panel Report, footnote 2698 to para. 7.1140)
940Panel Report, para. 7.1142 (quoting United States Code of Federal Regulations , Title 32,
section 21.615 (Panel Exhibit US-22)).
941Panel Report, para. 7.1171.
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RDT&E programmes constitute specific subsidies w ithin the meaning of Articles 1 and 2 of the
SCM Agreement.
942
439. The European Communities estimated that the am ount of subsidy provided by the USDOD to
Boeing's LCA division was $2.4 billion. 943 The Panel did not accept the European Communities'
estimate because it was based on a methodology and an alysis that did not distinguish payments and
access to facilities provided to Boeing under proc urement contracts from payments and access to
facilities provided to Boeing through assistance instruments. 944 Nor did the Panel accept the
United States' estimate that the total amount of any USDOD subsidy to Boeing for dual-use R&D was
significantly less than $308 million.945 Ultimately, however, the Panel was unable to arrive at its own
estimate of the amount of the subsidy provided to Boeing under the relevant USDOD assistance
instruments.946
2. Allocation of Patent Rights
440. The European Communities also challenged th e allocation of intellectual property rights
under procurement contracts and agreements en tered into between NASA/USDOD and Boeing for
aeronautics R&D.947
441. US patent rights generally authorize the patent holder, during the term of the patent, to
prevent all other entities from exploiting the technologi es covered by the patent, and allow the patent
holder to license the technology to others in excha nge for compensation. Specifically, a US patent
accords the right to "exclude others from making, usi ng, offering for sale, or selling" the invention in
the United States or from "importing" the invention into the United States, for a specific period of
time (a minimum of 20 years from the date of application).948
442. Prior to 1980, the US Government had a gene ral policy of assuming all rights to patents over
inventions developed by contractors under fede rally funded R&D contracts (and then granting
non-exclusive licenses to any applicant, including the contractor, who wished to use the subject

942Panel Report, paras. 7.1196-7.1198.
943Panel Report, para. 7.1199.
944Panel Report, para. 7.1206.
945Panel Report, paras. 7.1200, 7.1205, 7.1209, and 7.1210.
946Panel Report, para. 7.1210.
947The European Communities additionally challenged the allocation of data rights and trade secrets.
However, this appeal concerns only the allocation of patent rights.
948Panel Report, para. 7.1285 (referring to European Communities' first written submission to the
Panel, para. 812, in turn quoting United States Code, Title 35, section 154(a)(2) (Panel Exhibit EC-562) and
section 271(a) (Panel Exhibit EC-563)).
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invention).
949 In 1980, the US Government changed its policy so that government contractors
obtained ownership of patents ove r any invention that they deve loped with federal funding under
R&D contracts (with the government receiving a limite d "government use" license to use the subject
invention without having to pay the contractor ro yalties). Originally, the new policy applied only to
non-profit organizations and small business firms. The policy was subsequently extended to all
government contractors, regardless of size and profit/non-profit status 950, and implemented through a
number of different legal instruments.
443. The Panel identified the following five US legal instruments as relevant951:
(i) the Patent and Trademark Law Amendments Act of 1980952 (the "Bayh-Dole Act");
(ii) a 1983 Presidential Memorandum to the heads of Executive departments and agencies
(entitled "Government Patent Policy") that extended the scope of the policy enacted
under the Bayh-Dole Act to encompass all govern ment contractors, regardless of size
and profit/non-profit status953 (the "1983 Presidential Memorandum");
(iii) a 1987 Executive Order (entitled "Facilitating Access to Science and Technology")
into which the terms of the 1983 Presi dential Memorandum were eventually
incorporated954 (the "1987 Executive Order");
(iv) the corresponding general fede ral regulations implementing the Bayh-Dole Act, the
1983 Presidential Memorandum, and the 1987 Executive Order (Title 48,
Subpart 27.3, entitled "Patent Rights Under Government Contracts")
955; and
(v) the NASA-specific federal regulations (e ntitled "Patents and Other Intellectual
Property Rights", with Subpart 1 entitled "Patent Waiver Regulations").956

949Panel Report, para. 7.1277 (referring to European Communities' first written submission to the
Panel, para. 806; and United States' first written submission to the Panel, para. 314).
950Panel Report, para. 7.1277.
951Panel Report, para. 7.1278.
952Supra, footnote 243.
953Supra, footnote 244.
954Supra, footnote 245.
955United States Code of Federal Regulations , Title 48, sections 27.300-27.306 (Panel Exhibit
EC-559).
956United States Code of Federal Regulations, Title 14, Part 1245 (Panel Exhibit EC-572).
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444. Under this policy, the US Government receiv es "a nonexclusive, nontransferable, irrevocable
paid-up license to practice or have practiced fo r or on behalf of the United States any subject
invention throughout the world".
957 The US Government also obtains certain "march-in" rights, which
empower the relevant federal agency to compel th e contractor, in certain limited circumstances, to
grant a license to applicants on reasonable terms, or to grant the license itself. No US Government
department or agency has ever exercised these march-in rights for any patent under any contract.958
445. The Space Act provides that any invention de veloped pursuant to a contract with NASA
"shall be the exclusive property of the United States , and if such invention is patentable a patent
therefore shall be issued to the United States", unless waived by NASA. 959 To comply with the 1983
Presidential Memorandum, NASA formulated regulati ons under which it generally waives its patent
rights to large companies, such as Boeing, fo r inventions developed pursuant to NASA-funded
research.960 NASA waives such rights in order to, in part, "promote early utilization, expeditious
development and contin ued availability of the new technology for commercial purposes". 961 The
NASA patent waiver regulations permit requests for wa ivers at two points in time: (i) in advance of
the invention, as to any and all inventions made under a contract; and (ii) after reporting an invention,
subsequent to the invention being developed.962
446. Unlike NASA, the USDOD does not have its ow n detailed regulations regarding patent
allocation. Instead, the USDOD generally relies on the relevant portion of the Bayh-Dole Act and
the 1983 Presidential Memorandum 963, as well as the correspondi ng general federal regulations

957Panel Report, para. 7.1286 (referring to European Communities' first written submission to the
Panel, para. 813, in turn quoting United States Code, Title 35, section 202(c)(4) (Panel Exhibit EC-558) and
United States Code of Federal Regulations, Title 48, section 27.302(c) (Panel Exhibit EC-559)).
958Panel Report, para. 7.1286.
959Panel Report, para. 7.1287 (referring to United States Code, Title 42, section 2457(a) (Panel Exhibit
EC-571)).
960Panel Report, para. 7.1287 (referring to United States Code of Federal Regulations , Title 14,
sections 1245.100-1245.103 (Panel Exhibit EC-572)). The regulations do not apply to small business firms or
non-profit organizations, which are governed by the US patent law provisions. ( Ibid., footnote 2913 to
para. 7.1287 (referring to United States Code , Title 35, sections 200-212 (Panel Exhibit EC-558)) See also,
United States Code of Federal Regulations, Title 14, section 1245.101 (Panel Exhibit EC-572).
961Panel Report, para. 7.1287 (referring to United States Code of Federal Regulations , Title 14,
section 1245.103(a) (Panel Exhibit EC-572)). The patent rights waived by NASA pursuant to their regulations
are not unlimited, as NASA retains the right to use the patented technology for itself, or to issue compulsory
licenses through "march-in" rights. (Ibid., footnote 2914 to para. 7.1287)
962Panel Report, para. 7.1287 (referring to United States Code of Federal Regulations , Title 14,
sections 1245.104 and 1245.105 (Panel Exhibit EC-572)).
963See Panel Report, para. 7.1291. The US patent law provisions regarding "patent rights in inventions
made with federal assistance", codified at United States Code, Title 35, sections 200-212, apply to any "Federal
agency". (United States Code, Title 35, section 201(a) (Panel Exhibit EC -558)) "Federal agency" is defined as
"any executive agency as defined in section 105 of title 5, and the military departments as defined by
section 102 of title 5". (Ibid.) In turn, section 102 of Title 5 provides that the military departments consist of the
Army, Navy, and Air Force. (United States Code, Title 5, section 102 (Panel Exhibit EC-581))
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implementing these instruments.
964 This aspect of US law, along with the terms of the
1983 Presidential Memorandum, is generally implem ented by the USDOD by incorporating certain
clauses into R&D contracts.965
3. FSC/ETI and Successor Legislation
447. The European Communities challenged the tax ex emption enjoyed by Boeing in relation to
certain income under the FSC legislation and under successor legislation, namely: the FSC Repeal
and Extraterritorial Income Exclusion Act of 2000 966 (the "ETI Act"); the American Jobs Creation
Act of 2004967 (the "AJCA"); and the Tax Increase Prevention and Reconciliation Act of 2005 968 (the
"TIPRA").969 These tax exemptions were the subject of a previous WTO dispute between the
European Communities and the United States, which included two compliance proceedings. 970 T h e
tax exemption under the FSC legislation, and the exclusion of certain income under the ETI Act,
which replaced the FSC regime, were found to be export subsidies prohibited under Articles 3.1(a)
and 3.2 of the SCM Agreement.971

964See Panel Report, para. 7.1291 (referring to United States Code of Federal Regulations , Title 48,
sections 27.300-27.306 (Panel Exhibit EC-559)). Thes e provisions, which are part of the Federal Acquisition
Regulation ("FAR") System, apply to "all executive agencies", which is defined to include the USDOD.
(United States Code of Federal Regulations , Title 48, section 1.101 (purpose of FAR) (Panel Exhibit EC-582);
United States Code of Federal Regulations , Title 48 , section 2.101 (defining "executive agency") (Panel
Exhibit EC-583))
965Panel Report, para. 7.1292. The Panel noted that, in R&D contracts with medium or large
businesses, the USDOD uses the standard clause provided in section 52.227-12 of the FAR. (Ibid.)
966Supra, footnote 18, item (ii).
967Supra, footnote 18, item (iii).
968Supra, footnote 18, item (iv). Although its title refers to 2005, the legislation was enacted on
17 May 2006.
969See Request for the Establishment of a Panel by th e European Communities, originally circulated as
document WT/DS317/5 (amended by WT/DS353/2/Corr.1, WT/DS317/5/Add.1/Corr.1), para. 6.
970The Panel recalled the findings made by the panels and the Appellate Body in US – FSC, US – FSC
(Article 21.5 – EC), and US – FSC (Article 21.5 – EC II) with respect to, for instance, the existence of a subsidy
under Article 1 of the SCM Agreement. (Panel Report, para. 7.1401)
971The Panel in this case referred to the previous WTO dispute settlement proceedings and also found
that the FSC/ETI subsidies constituted export subsidies. (Panel Report, paras. 7.1452 and 7.1463) However, the
Panel refrained from making recommendations that the US Government "withdraw" these export subsidies,
pursuant to Article 4.7 of SCM Agreement, on the ground that "the FSC/ETI m easure in force at the time of the
Panel's establishment ha{d} been substantially changed during the course of the {Panel} proceedings and indeed
it appear{ed} that the measure {was} no longer in force with respect to Bo eing". The Panel considered it "well
established in WTO dispute settlement practice that when a measure has expired, it is appropriate for a panel to
refrain from making a recommendation with respect to such a measure". In any event, the Panel reasoned that
"to the extent that FSC/ETI tax benefits remained applicable to Boeing at the time of the establishment of this
Panel … the panel and Appellate Body reports in US – FSC (Article 21.5 – EC II) concluded that the
recommendation made by the panel in US – FSC remained operative". (Ibid., para. 8.6; see also para. 8.7)
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448. The United States did not dispute that the FSC/ ETI tax exemptions were specific subsidies.
972
Moreover, the United States accepted the European Communities' estimate that the amount of the
subsidy to Boeing's LCA division from 1989 through 2006 in the form of FSC/ETI tax breaks was
$2.199 billion.973 The issue in contention was whether Bo eing would continue to receive FSC/ETI
benefits after 2006. 974 The Panel considered the evidence su bmitted by the parties to determine
whether Boeing would continue to r eceive FSC/ETI benefits after 2006. 975 Ultimately, the Panel did
not consider it necessary to make a finding on this issue because the European Communities "ha{d}
not adequately explained how such a finding {was} relevant to the Panel's evaluation of the
European Communities' claims of present serious pr ejudice and threat of serious prejudice or to its
claim of the existence of prohibited subsidies".976
449. The following paragraphs provide an overview of the four pieces of US legislation at issue.
(a) Provisions of the US Internal Revenue Code relating to FSCs977
450. An FSC was a corporation created, organized, and maintained in a qualified foreign country
or country under US possession outside the customs territory of the United States under the specific
requirements of sections 921-927 of the US Internal Revenue Code (the "IRC").
978 An FSC obtained
a US tax exemption on a portion of its "foreign trade income". In addition to this exemption, the FSC
measure also allowed the US parent companies of FSCs to defer paying taxes on certain "foreign trade
income" that would normally be subject to immedi ate taxation and to avoid paying taxes on dividends
received from their FSCs related to "foreign trade income". 979 The FSC measure was found by the
panel and the Appellate Body in US – FSC to be an export subsidy inconsistent with the United States'
obligations under Articles 3.1(a) and 3.2 of the SCM Agreement, and under Articles 8 and 10.1 of the
Agreement on Agriculture.980

972Panel Report, para. 7.1392 (referring to United States' first written submission to the Panel,
para. 422).
973Panel Report, paras. 7.1412 and 7.1418.
974Panel Report, para. 7.1413.
975Panel Report, paras. 7.1421-7.1426.
976Panel Report, para. 7.1427.
977The European Communities submitted that "the 'primary' legal provisions constituting the FSC
measure are sections 245(c), 921 through 927, and 951 (e) of the United States Internal Revenue Code".
(European Communities' first written submission to the Panel, footnote 1615 to para. 923) A detailed
description of the FSC provisions is contained in Panel Report, US – FSC , paras. 2.1-2.8 and 7.95-7.97, and
Appellate Body Report, US – FSC, paras. 11-18.
978Panel Report, para. 7.1379 (referring to United States Code , Title 26 (Internal Revenue Code),
sections 921-927 (Panel Exhibit EC-623)).
979Panel Report, para. 7.1379.
980Panel Report, US – FSC , para. 8.1(a) and (b); Appellate Body Report, US – FSC , paras. 177(a)
and 178.
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(b) FSC Repeal and Extraterritorial Income Exclusion Act of 2000
451. On 15 November 2000, the United States enacted the ETI Act
981 in response to the findings
made with respect to the FSC provisions by the panel and the Appellate Body in US – FSC.982 First,
the ETI Act specified that, in general, the amendm ents made by the Act "shall apply to transactions
after September 30, 2000".983 In addition, no new FSCs could be cr eated after that date. However, in
the case of an FSC in existence on 30 September 2000, section 5(c)(1) of the ETI Act provided that
the amendments made by the Act did not apply to certain transactions. 984 Second, the ETI Act
allowed for the exclusion from taxation of income involving "qualifying foreign trade property".985
452. The compliance panel in US – FSC (Article 21.5 – EC) found that the ETI Act was
inconsistent with the United States' WTO obliga tions and that the United States had not fully
withdrawn the subsidies found, in the original proc eedings, to be prohibited export subsidies. The
panel concluded that the United States, therefore, had failed to implement fully the recommendations
and rulings of the DSB made pursuant to Article 4.7 of the SCM Agreement.986 The Appellate Body
upheld the panel's findings.987
(c) American Jobs Creation Act of 2004
453. On 22 October 2004, the United States enacted th e AJCA in response to the findings made by
the compliance panel and the Appellate Body in US – FSC (Article 21.5 – EC) . Section 101 of the
AJCA repealed the provisions in section 114 of the IRC relating to the exclusion from income
taxation of ETI. However, a "transitional rule for 2005 and 2006" in section 101(d) of the AJCA
allowed US taxpayers to claim 80% of ETI tax bene fits with respect to certain transactions in 2005
and to claim 60% of ETI tax benefits with respect to certain transactions in 2006. In addition to this

981Panel Report, para. 7.1380 and footnote 3035 thereto. See ETI Act, supra, footnote 18, item (ii).
A detailed description of the provisions of this Act is contained in Panel Report, US – FSC (Article 21.5 – EC) ,
paras. 2.1-2.8 and Appellate Body Report, US – FSC (Article 21.5 – EC), paras. 15-25.
982Panel Report, US – FSC , para. 8.1(a) and (b); Appellate Body Report, US – FSC , paras. 177(a)
and 178.
983Panel Report, para. 7.1381.
984Any transaction in the ordinary course of trade or business involving an FSC that occurred:
(i) before 1 January 2002; or (ii) after 31 December 2001, pursuant to a binding contract between the FSC
(or any related person) and any unrelated person that was in effect on 30 September 2000. (Panel Report,
para. 7.1381)
985At least two requirements, under the ETI Act, had to be satisfied in order for a taxpayer to qualify for
the exclusion from taxation: (i) that a good produced within or outside the United States be held primarily for
sale, lease, or rental, in the ordinary course of trade or business for direct use, consumption, or disposition
outside the United States; and (ii) that no more than 50% of the fair market va lue of such property be
attributable to articles manufactured, produced, grown, or extracted outside the United States, and direct costs
for labour performed outside the United States. (Panel Report, para. 7.1383)
986Panel Report, US – FSC (Article 21.5 – EC), para. 9.1.
987Appellate Body Report, US – FSC (Article 21.5 – EC), para. 257.
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time-limited transitional rule, the AJCA indefinite ly grandfathered the ETI scheme in respect of
certain transactions.
454. The second compliance panel in US – FSC (Article 21.5 – EC II) determined that
Article 101(d) and (f) of the AJCA maintained ETI benefits throughout 2 005 and 2006 (albeit at
reduced percentages), and indefinitely (in the case of certain transactions). The panel further noted
the indefinite grandfathering of the original FSC subsidies for certain transactions through the
continued operation of section 5 of the ETI Act.
988 The panel concluded that the United States
continued to fail to implement fully the operative DSB recommendations and rulings to withdraw the
prohibited subsidies and to bring its measures into conformity with its obligations under the relevant
covered agreements.989 The panel's findings were also upheld on appeal.990
(d) Tax Increase Prevention and Reconciliation Act of 2005
455. On 17 May 2006, the United States enacted the TIPRA in response to the findings of the
second compliance panel and the Appellate Body in US – FSC (Article 21.5 – EC II) . Section 513 of
the TIPRA is entitled "Repeal of FSC/ETI Binding C ontract Relief". Section 513(a) of the TIPRA
(FSC provisions) repealed section 5(c)(1)(B) of the ETI Act, which allowed for the continuation of
FSC benefits in respect of transactions occurring pursuant to a binding contract in effect on
30 September 2000. Section 513(b) of the TIPRA (ETI provisions) repealed section 101(f) of the
AJCA, which allowed for the continuation of ETI ta x benefits in respect of transactions occurring
pursuant to a binding contract in effect on 17 September 2003. Section 513(c) of the TIPRA provides
that "{t}he amendments made by this section shall apply to taxable years beginning after the date of
the enactment of this Act".
991

988Panel Report, US – FSC (Article 21.5 – EC II), paras. 7.60 and 7.61.
989Panel Report, US – FSC (Article 21.5 – EC II), para. 8.1.
990Appellate Body Report, US – FSC (Article 21.5 – EC II), para. 100.
991Panel Report, para. 7.1385.
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C. State and Local Measures
1. State of Washington
(a) Measures under House Bill 2294
456. In 2003, the State of Washington legislature approved a package of tax incentives pursuant to
Washington State House Bill 2294, entitled "An Ac t Related to Retaining and Attracting the
Aerospace Industry to Washington State"992 ("House Bill 2294").993 House Bill 2294 includes five tax
measures that the European Communities challenged before the Panel as subsidies to Boeing's LCA
division that cause adverse effects and are also prohibited under the SCM Agreement.994 T h e f i v e
measures are:
(i) a business and occupation ("B&O") tax rate reduction;
(ii) B&O tax credits for preproduction developm ent, computer software and hardware,
and property taxes;
(iii) sales and use tax exemptions for computers, and construction services and equipment;
(iv) leasehold excise tax exemptions; and
(v) property tax exemptions.
457. The Panel observed that Boeing had never clai med the sales and use tax exemptions for
construction services and equipment. In addition, it noted that Boeing had not claimed the leasehold
excise tax exemptions and the property tax exempti ons, and, in fact, Boeing had taken steps that
suggested it would not claim these exemptions. 995 In these circumstances, the Panel found that there
was no financial contribution to Boeing in relation to these three measures. 996 This finding has not
been appealed and, consequently, the descripti on below focuses on the Washington State B&O tax
rate reduction; the B&O tax credits for preproduction development, computer software and hardware,
and property taxes; and the sales and use tax exemptions for computers.

992Supra, footnote 6.
993Panel Report, para. 7.41 (referring to House Bill 2294, preamble).
994Panel Report, para. 7.42 (referring to European Communities' first written submission to the Panel,
para. 69).
995Panel Report, para. 7.151.
996Panel Report, para. 7.151.
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(i) Washington State B&O tax rate reduction
458. The B&O tax is Washington St ate's primary business tax.
997 It is a tax on the "gross receipts
of all businesses operating in Washington State, as a measure of the privilege of engaging in
business".998 The Panel noted that "gross receipts" refe rs to the gross proceeds of sales, the gross
income of a business, or the value of products, depe nding upon which is applicable. It further noted
that taxpayers are taxed based on the activities in wh ich they engage in the State of Washington, such
as manufacturing, wholesaling, retailing, or the provision of services.999
459. House Bill 2294 includes a reduction in the B&O tax rate for manufacturers of commercial
airplanes or components for such airplanes. The bill provides for such reduction to occur in two
stages: from a tax rate of 0.484% (or 0.471% in the case of retail sales) to 0.4235% as of 1 October
20051000; and then to 0.2904% as of 1 July 2007 or as of the commencement of final assembly 1001 of a
"super-efficient" airplane, whichever is later. 1002 The taxation reduction applies until 2024 unless the
final assembly of a super-efficient aircraft had not commenced by 31 December 2007, in which case
the tax rate reverts to 0.484% for manufacturing and wholesaling activities, and 0.471% for retailing
activities.1003 Given that final assembly of the Boeing 787, which was agreed by the
European Communities and the United States to meet the definition of a "super-efficient airplane",
commenced in Washington in the first half of 2007, the reduced taxation rate will continue
until 2024.1004
460. The Panel concluded that the Washington St ate B&O tax reduction is a specific subsidy
within the meaning of Articles 1 and 2 of the SCM Agreement, and estimated the amount of this
subsidy to Boeing's LCA division to be $13.8 million.1005

997Panel Report, para. 7.47 (referring to Final Bill Report, House B ill 2294, C1L03E2, undated (Panel
Exhibit EC-90)).
998Panel Report, para. 7.47 (quoting Business and Occupation Tax, Revised Code of Washington ,
section 82.04 (Panel Exhibit US-179)).
999Panel Report, para. 7.47 (referring to United States' first written submission to the Panel, para. 429).
1000Panel Report, para. 7.48.
1001"Final assembly" is defined to mean the activity of assembling an airplane from component parts
necessary for its mechanical operation such that the finished commercial airplane is ready to be delivered to the
1002Panel Report, para. 7.48 (referring to Hous e Bill 2294, sections 3(13) and 4(13));
European Communities' first written submission to the Panel, para. 106; and United States' first written
1003Panel Report, para. 7.48 (referring to Hous e Bill 2294, sections 3(13) and 4(13));
European Communities' first written submission to the Panel, para. 106; and United States' first written
1004Panel Report, para. 7.48.
1005Panel Report, para. 7.302.
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(ii) Washington State B&O tax credits for preproduction
development, computer software and hardware, and property
taxes
461. House Bill 2294 also includes three B&O tax cr edits relating to certain preproduction
development expenditures, computer software and hardware, and property taxes.
1006 First, it provides
for a B&O tax credit for preproduction development to any "manufacturer or processor for hire of
commercial airplanes, or components of such airplanes" for its expenditure on certain
aeronautics-related research, design, and engineer ing activities performed in the development of a
product.1007
462. Second, a B&O tax credit is granted for computer software and hardware to any
"manufacturer of commercial airplanes" for its expenditures, between 1 July 1995 and 1 July 2003, on
design and preproduction development computer softwa re and hardware used primarily for the digital
design and development of commercial airplanes.1008
463. Third, House Bill 2294 grants a B&O tax credit for property taxes where the tax credit is
equal to the state and local property taxes paid on certain property used in the manufacture of
commercial airplanes or components for such airplanes.1009
464. The Panel concluded that the B&O tax credits for preproduction development, computer
software and hardware, and property taxes are specific subsidies within the meaning of
Articles 1 and 2 of the SCM Agreement, and estimated the amount of these subsidies to Boeing's LCA
division to be collectively $42.4 million.
1010
(iii) Washington State sales and use tax exemptions for computer
software, hardware, and peripherals
465. In addition to the B&O tax, the State of Washi ngton has a retail sales tax and a use tax. The
retail sales tax is a tax on the sale of tangible personal property and certain services. The use tax is
due on the value of tangible personal property and certain services on which the retail sales tax has

1006Panel Report, para. 7.50.
1007Panel Report, para. 7.51. The credit is equal to 1.5% of qualifying preproduction development
expenditure. It can be claimed after 1 July 2005, although credits earned prior to th is date can be accrued and
carried forward. The credit expires on 1 July 2024. (Ibid.)
1008The credit is equal to 8.44% of the purchase price of the property. (Panel Report, para. 7.53)
1009The three types of qualifying property taxes are: (i) taxes on new buildings, and the land upon
which the buildings are located, used in manufacturing airplanes and components; (ii) taxes on increases in the
assessed value of a building, used in manufacturing aircraft or components, due to renovation or expansion of
the building; and (iii) taxes on certain machinery and equipment used in manufacturing commercial airplanes or
1010Panel Report, para. 7.302.
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not been paid.
1011 House Bill 2294 introduced two exemptions to these taxes, na mely, an exemption
relating to computer hardware, software, and peripherals and an exemption relating to certain
construction services and equipment.1012
466. The Panel concluded that the sales and use tax exemptions for computer hardware, software,
and peripherals are a specific subsidy with in the meaning of Articles 1 and 2 of the SCM Agreement,
and estimated the amount of this subsidy to Boeing's LCA division to be $8.3 million.1013
(b) City of Everett local B&O tax rate reduction
467. The City of Everett imposes a B&O tax similar in nature to the one imposed at the state level.
It is a tax on gross revenues, which in the case of manufacturing is generally treated as the value of
products manufactured, and in the case of retailing or wholesaling as the gross proceeds of sales. It
applies to all business activities occurring within the limits of the City of Everett.
1014
468. The Panel found that Boeing was the only company in the City of Everett that could qualify
under the threshold required to receive the B&O tax rate reduction.1015 Thus, the Panel concluded that
the City of Everett B&O tax rate reduction is a specific subsidy within the meaning of Articles 1 and 2
of the SCM Agreement, and estimated the amount of the subsidy to Boeing's LCA division
through 2006 to be $2.2 million.1016

1011Panel Report, para. 7.57.
1012Panel Report, para. 7.58.
1013Panel Report, para. 7.302.
1014Panel Report, para. 7.306.
1015See Everett Municipal Code (2004), chapter 3.24 (Panel Exhibit EC-104). Prior to 2004, the City of
Everett B&O tax was imposed at a rate of 0.1%. In 2 004, the City of Everett passed Ordinance 2759-04. The
Ordinance amends chapter 3.24 of the Everett Municipal Code . The result of the amendment is that the 0.1%
B&O tax rate "upon every person engaging within the city in business as a manufacturer" is reduced to 0.025%
for manufacturers exceeding a minimum thre shold of value of production in the City of Everett. Only Boeing
met the $6 billion threshold required to benefit from the tax reduction. After Boeing, the second largest
manufacturer in the City generated $1.12 billion in re venue and no other manufacturer surpassed $1 billion.
(Panel Report, paras. 7.342 and 7.344)
1016Panel Report, paras. 7.346 and 7.354.
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(c) Project Olympus Master Site Agreement
469. The Project Olympus Master Site Development and Location Agreement between the Boeing
Company and the State of Washington
1017 (the "MSA") was concluded on 19 December 2003. 1018 The
Panel observed that "Project Olympus" means "a fully operational state-of-the art facility for, initially,
the assembly of the 7E7 Aircraft, together with all related utilities and tr ansportation improvements
and facilities necessary and appurtenant thereto to be located on or connected to the Facilities Site,
including any off-site improvements and facilities". 1019 The European Communities challenged eight
measures referred to in the MSA. 1020 Only one of these measures—the job training incentives—was
found to be a specific subsidy by the Panel.1021
470. The job training incentives consisted of a workforce development programme and an
Employment Resource Center provided for in th e MSA. The Panel noted that approximately
$14 million was allocated by the State of Washington, under the MSA, for the workforce development
programme from 1 July 2003 through 30 June 2007. 1022 As for the Employment Resource Center, the
State decided not to construct a new facility, but ra ther leased the facility at a cost of $956,400 per
year.1023 The Employment Resource Center became operational on 1 August 2006.1024

1017Supra, footnote 8.
1018Panel Report, para. 7.355. Article 1.2 of the MSA provides:
This Agreement is intended to legally bind the parties, subject only to the
granting, adoption or enactment of the respective resolutions, ordinances,
legislative amendments and similar authorizations that may be required to
provide any Commitments. This Agreement sets forth the terms and
conditions under which Boeing intends to locate the Facilities and
operations related to Project Olympus in the State and the covenants,
representations and warranties in connection therewith.
(Panel Report, para. 7.355 (quoting MSA, Article 1.2))
1020The eight measures are listed in paragraph 7.357 of the Panel Report.
1021Panel Report, paras. 7.644 and 7.645.
1022Panel Report, para. 7.584 (referring to exhibits to the MSA (Panel Exhibit EC-59), Exhibit D-2).
From these funds, $4.4 million were provided to Accenture LLP to develop the workforce development
programme that would operate out of the Employment Resource Center by 30 June 2006. (Ibid., para. 7.570)
1023Panel Report, para. 7.587 (referring to Employment Resource Center Lease (August 2005) (Panel
Exhibit US-239), p. 3).
1024Panel Report, para. 7.571. The MSA provides for Boeing to enjoy exclusive use of the facilities for
a period of five years. (Ibid., para. 7.592)
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471. The Panel found that the workforce developm ent programme and the Employment Resource
Center are specific subsidies within the meaning of Articles 1 and 2 of the SCM Agreement.
1025 I t
estimated the amount of these subsidies to Boeing' s LCA division during the period 1989-2006 to be
$11 million.1026
2. Wichita (Kansas) Industrial Revenue Bonds1027
472. Industrial revenue bonds ("IRBs") are issued by cities and counties in Kansas State, on behalf
of private entities, in order to assist in raisi ng revenue to fund the purchase, construction, or
improvement of various types of industrial a nd commercial property (the "project property"). 1028
IRBs are generally issued in the following steps. The city or county acts as the issuer of the bonds.
The issuer sells the bonds to the general public, or bondholders, through an underwriter or private
placement, in exchange for proceeds that will be used to acquire or enhance the project property. The
issuer serves as a passive conduit whose role is simply to lend its status as a municipal corporation to
the transaction. The private entity, on behalf of which the IRBs are issued, acts as the lessee or tenant.
The lessee conveys the project property to the issuer for the term of the IRBs, and the issuer leases the
project property back to the lessee for the length of that term. The lessee makes rent payments that

1025Panel Report, para. 7.594.
1026Panel Report, para. 7.597. This amount corresponds to $10.5 million for the workforce
development programme and $478,200 reflecting the cost of the lease of the Empl oyment Resource Center for
the second half of 2006. (Ibid., para. 7.595)
1027Before the Panel, the European Communities also challenged a tranche of bonds issued by the
Kansas Development Finance Authority to fund the development by Spirit of parts for the Boeing 787. The
Panel found that the European Communities had failed to demonstrate that the benefit of subsidies to be
received by Spirit passed through to Boei ng at the time of sale of Boeing Wichita. (Panel Report, paras. 7.889
and 7.890) This finding has not been appealed and thus we do not further discuss this measure.
1028Panel Report, para. 7.651. Cities in Kansas issue IRBs pursuant to the Kansas Statutes Annotated,
sections 12-1740 ff. Section 12-1741 of the Kansas Statutes Annotated provides:
{A}ny city shall have the power to issue bonds, the proceeds of which shall
be used for the purpose of paying all or part of the cost of purchasing,
acquiring, constructing, reconstructing, improving, equipping, furnishing,
repairing, enlarging or remodeling f acilities for agricultural, commercial,
hospital, industrial, natural resources, recreational development and
manufacturing purposes. Any city shall also have the power to enter into
leases or lease purchase agreements by ordinance with any person, firm or
corporation for the facilities.
(Ibid., para. 7.652 (referring to and quoting Kansas Statutes Annotated , sections 12-1740 ff (2001) (Panel
Exhibit EC-167))
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are sufficient to pay the principal and interest on the IRBs to the bondholders.
1029 Finally, a bank acts
as the trustee on behalf of the bondholders.1030
473. The European Communities alleged that the a dvantages for a private entity of having IRBs
issued on its behalf include: (i) the ability to borro w funds at lower than market interest rates, due to
tax-exempt interest; (ii) property tax abatements for up to 10 years on project property; and (iii) sales
tax exemptions on project property and services acquired with the proceeds of IRBs.1031
474. Boeing Commercial Airplanes, Wichita Divisi on, produced commercial airplanes and their
components in Wichita, Kansas, for over 70 years. On 16 June 2005, Boeing sold its Wichita
facilities to another company, now Spirit AeroSystems ("Spirit").
 For these two companies, the IRB
scheme operated in a different manner. Most notably , rather than being purchased by the public, the
IRBs issued on behalf of Boeing or Spirit were purchased by these companies themselves 1032,
resulting in a cash flow, from Boeing (or Spirit) to th e City of Wichita to purchase the IRBs, and from
the City of Wichita back to Boeing (or Spirit) to fund the development of project property. 1033 As
Boeing or Spirit owns the IRBs, any principal or inte rest payments are payments that are ultimately
transferred to themselves. Boeing and Spirit do no t use the IRBs to fina nce the development of
property, but rather, to take advantage of the pr operty and the sales tax exemptions referred to
above.1034 According to the European Communities, the City of Wichita issued IRBs on behalf of
Boeing every year since 1979.1035
475. The Panel found the tax benefits to Boeing arisi ng from the issuance of IRBs to be a specific
subsidy within the meaning of Articles 1 and 2 of the SCM Agreement. The value of this subsidy for
Boeing's LCA division was estimated by the Panel to be $475.8 million.1036

1029City of Wichita IRB Overview: "Industrial Revenu e Bond Issuance in the State of Kansas" (Panel
Exhibit EC-741).
1030The trustee: (i) holds and disburses the bond proceeds to the lessee to pay for the project property
being acquired or enhanced; (ii) receives rent payments from the lessee; (iii) disb urses principal and interest
payments to the bondholders; and (iv) acts on behalf of bondholders to exercise remedies in the event of
defaults. (City of Wichita IRB Overview: "Industrial Re venue Bond Issuance in the State of Kansas" (Panel
Exhibit EC-741))
1031Panel Report, para. 7.656 (referring to European Communities' first written submission to the Panel,
para. 298).
1032Panel Report, para. 7.658 (referring to European Communities' first written submission to the Panel,
Annex A (Background on Wichita Industrial Revenue Bonds), para. 19).
1033Panel Report, para. 7.658 (referring to European Communities' first written submission to the Panel,
Annex A (Background on Wichita Industrial Revenue Bonds), para. 22).
1034Panel Report, para. 7.658 (referring to European Communities' first written submission to the Panel,
para. 312). The European Communities did not challenge any other aspects of the IRB transactions. ( Ibid.
(referring to European Communities' first written submission to the Panel, para. 318))
1035Panel Report, para. 7.660.
1036Panel Report, para. 7.819.
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3. State of Illinois
476. Finally, the European Communities challenged four separate incentives that the State of
Illinois, Cook County, and the City of Chicago provided to Boeing in consideration for Boeing's
decision to relocate its corporate headquarters fro m Seattle to Chicago in 2001. The first three
incentives are derived from the Corporat e Headquarters Relocation Act of 2001 1037 (the "CHRA").
The CHRA was adopted by the Illinois State legi slature on 1 August 2001, approximately one month
before Boeing relocated its headquarters to Chicago. It granted both the City of Chicago and Cook
County, as taxing districts, the authority to abate or refund certain property taxes, as long as such
property tax abatements/refunds were approved by 1 August 2006. 1038 The CHRA indicates that its
purpose is to encourage the relocation of the in ternational headquarters of large, multinational
corporations to a location within Illinois "through the use of incentives … that would otherwise not be
available through existing incentives programs". 1039 Boeing made use of all of these incentives under
the CHRA.1040
477. In addition to the three incentives provided under the CHRA, the City of Chicago also agreed
to pay $1 million to retire the lease of the previous tenant of Boeing's new corporate headquarters
building. The City made the payment in order to enable Boeing to move into its new office space by
September 2001. On 10 May 2001, immediately after the City of Chicago agreed to the $1 million
payment, the landlord and Boeing executed a 15-year lease agreement.
1041
478. The Panel found that the four incentives provide d to Boeing in consideration for Boeing's
decision to relocate its corporate headquarters to Chicago constitute a specific subsidy within the
meaning of Articles 1 and 2 of the SCM Agreement, and estimated the amount of the subsidy provided
to Boeing's LCA division to be approximately $11 million over the 2002-2006 period.

1037Supra, footnote 41.
1038See Illinois Compiled Statutes Annotated , chapter 35, section 200/18-165(a)(8) (Panel Exhibit
EC-225).
1040Panel Report, para. 7.898.
1041Panel Report, para. 7.902. The City of Chicago made the actual payment on 15 January 2003
pursuant to the Lease Termination Compensation Agreement between 100 North Riverside, LLC, and the City
of Chicago (Panel Exhibit EC-217). This Agreement notes that the City of Chicago made the payment in order
to "induce the Landlord to consent to the termination of Morton's {the previous tenant's} long-term, above
market lease". This served to "make floors 25-28 available to Boeing and finalize the Boeing relocation". (Panel
Report, para. 7.902 (quoting Panel Exhibit EC-217, p. 2))
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479. All the measures found by the Panel to constitute specific subsidies within the meaning of
Articles 1 and 2 of the SCM Agreement, as well as their estimated amounts, are set out in Table 1.
Table 1. Amount of subsidies to Boeing's LCA division over the period 1989-2006
Government or
government agency
Measures found to constitute specific subsidies within the
meaning of Articles 1 and 2 of the SCM Agreement Amount of subsidy
NASA
- payments made to Boeing pursuant to procurement contracts
entered into under the eight aeronautics R&D programmes at
issue
- access to government facilities, equipment, and employees
provided to Boeing pursuant to procurement contracts and Space
Act Agreements entered into under the eight aeronautics R&D
programmes at issue
$2.6 billion
USDOD
- payments made to Boeing pursuant to assistance instruments
entered into under the RDT&E programmes at issue
- access to government facilities provided to Boeing pursuant to
assistance instruments entered into under the RDT&E
programmes at issue
unclear1042
FSC/ETI
- the tax exemptions and tax exclusions provided to Boeing under
FSC/ETI legislation, including the transition and grandfather
provisions of the ETI Act and the AJCA
$2.2 billion1043
State of Washington and
municipalities therein
- B&O tax rate reduction provided for in House Bill 2294
- B&O tax credits for preproduction development, computer
software and hardware, and property taxes provided for in House
Bill 2294
- sales and use tax exemptions for computer hardware, peripherals,
and software provided for in House Bill 2294
- City of Everett B&O tax rate reduction
- workforce development programme and Employment Resource
Center
$77.7 million
City of Wichita, Kansas - property and sales tax abatements provided to Boeing pursuant to
IRBs issued by the State of Kansas and municipalities therein $476 million
State of Illinois and
municipalities therein
- reimbursement of a portion of Boeing's relocation expenses
provided for in the CHRA
- 15-year Economic Development for a Growing Economy
("EDGE") tax credits provided for in the CHRA
- abatement or refund of a portion of Boeing's property taxes
provided for in the CHRA
- payment to retire the lease of the previous tenant of Boeing's new
corporate headquarters building
$11 million
Total at least $5.3 billion
Source: Table at Panel Report, para. 7.1433.

1042As noted supra, para. 439, the Panel rejected the estimates submitted by both the
European Communities ($2.4 billion) and the United States (less than $308 million), but was unable to arrive at
its own estimate.
 1043The European Communities submitted the following data on the amount of FSC/ETI subsidies
provided to Boeing's LCA division during the period 1989 to 2006: 1989–$58 million; 1990–$96 million; 1991–
$77 million; 1992–$94 million; 1993–$64 million; 1994–$68 million; 1995–$74 million; 1996–$95 million;
1997–$68 million; 1998–$115 million; 1999–$206 million; 2000–$266 million; 2001–$197 million; 2002–
$179 million; 2003–$107 million; 2004–$153 million; 2005–$142 million; and 2006–$140 million (estimated).
(International Trade Resources LLC, "FSC/ETI Tax Benefits Provided to U.S. Large Civil Aircraft Producers"
(December 2006) (Panel Exhibit EC-12)) The Panel noted that the United States had "indicated that it {was}
not disput{ing} the estimate by the European Communities of FSC/ETI benefits related to large civil aircraft
during the period 1989-2006". (Panel Report, para. 7.1418)
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V. Procedures under Annex V to the SCM Agreement
A. Introduction
480. On appeal, the European Union challenges a preliminary ruling made by the Panel
1044 with
respect to the absence, in this dispute 1045, of a procedure pursuant to Annex V to the SCM Agreement.
Annex V, entitled "Procedures for Developing Info rmation Concerning Serious Prejudice", provides
for an information-gathering procedure to be conduc ted in disputes where it is claimed that a Member
has, through subsidization, caused adverse effects in the form of serious prejudice to the interests of
another Member. Such process is to be initiated by the DSB and facilitated by a representative of the
DSB. It is to be carried out within 60 days of establishment of the panel a nd is intended to facilitate
the panel's subsequent review of the dispute.
481. We begin in section B by outlining the prel iminary procedural issue raised by the
European Communities at the outset of the Panel pr oceedings, and the Panel's disposition of it. We
then set out in section C an overview of the claims and arguments on appeal. Our analysis is set out
in section D, and is divided into two main parts: (i) the European Union's request for reversal of
certain statements and findings by the Panel set fort h in paragraph 7.22 of its Report; and (ii) the
European Union's request for completion of the anal ysis, including its request that we make four
specific findings, as well as two additional requests re lating to the alleged w ithholding of information
by the United States and its alleged non-cooperation in the Annex V procedure. Our conclusions are
set out in section E.
B. The Panel's Preliminary Ruling
482. The Panel in this dispute was established on 17 February 2006. In its request for the
establishment of a panel, the European Communities requested that the DSB initiate a procedure for
developing information concerning serious prejudice under Annex V to the SCM Agreement and
designate Mr. Mateo Diego-Fernández as its repr esentative for the purpose of facilitating such
procedure.
1046 At the DSB meeting at which the Panel was established, as well as at four subsequent
DSB meetings in March, April, and May of that year, the European Communities sought initiation of

1044The Panel's preliminary rulings are reproduced in paragraphs 7.19-7.24 of the Panel Report. On
appeal, the European Union's challenge relates to the ruling set out in paragraphs 7.20-7.23.
1045When referring to "this dispute", we are referring to DS353. However, as explained further below,
the DS number 353 was not initially attributed to this dispute. Rather, the DS353 number was assigned only on
4 December 2006, that is, several months after the establishment and composition of the Panel. At the time of
establishment and composition of the Panel, the dispute bo re the DS number 317. The evolution of DS317 and
DS353 is discussed infra, paras. 537-539.
1046Panel Report, para. 1.7.
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an Annex V procedure.
1047 At those meetings, the United Stat es made statements indicating that it
could not agree to the proposed initiation of an Annex V procedure, and the European Communities
made statements expressing the view that the DSB must initiate such a procedure upon request, unless
there is a consensus not to do so. 1048 At each meeting, the DSB "took note" of the statements
made.1049 No Annex V procedure ensued.
483. On 24 November 2006, two days after the Panel had been composed 1050, the
European Communities submitted a request for prel iminary rulings concerning the gathering of
information in connection with its claims of serious prejudice. 1051 The European Communities
requested, inter alia , that the Panel rule that an Annex V procedure had been initiated, that a
facilitator had been effectively designated, and that the United States was under an obligation to
cooperate and answer the questions that had been put to it in a letter from the European Communities
to the facilitator dated 23 May 2006. 1052 The European Communities' request included extensive
argumentation in support of several propositions, including that "the initiation of a procedure within
the meaning of Annex V, paragraph 2 SCM Agreement is not a DSB 'decision' to be adopted by
consensus, but rather a DSB 'action' that is auto matically taken upon request, or at least taken unless
there is a negative consensus not to take the action". 1053 The European Co mmunities requested,
alternatively, that the Panel exercise its pow ers under Article 13 of the DSU and request the
United States to provide certain information.1054

1047WT/DSB/M/205, paras. 69 and 72; WT/DSB/M/206, paras. 11-13 and 19-20; WT/DSB/M/207,
paras. 92 and 93; WT/DSB/M/210, para. 99-101; WT/DSB/M/212, paras. 64-67.
1048See infra, para. 538.
1050The Panel was composed on 22 November 2006. (Panel Report, para. 1.5)
1051Request for preliminary rulings by the European Communities, 24 November 2006
("European Communities' request for preliminary rulings").
1052European Communities' request for preliminary rulings, para. 58. As explained infra,
footnote 1142, after failing to obtain a DSB decision to initiate an Annex V procedure, the
European Communities sought to have the Annex V facilitator in the DS316 ( EC and certain member States –
Large Civil Aircraft) and DS317 disputes conduct an Annex V procedure in this dispute.
1053European Communities' request for preliminary rulings, para. 29.
1054European Communities' request for preliminary rulings, para. 58.
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484. On 22 March 2007, the United States submitted its response to the European Communities'
request for preliminary rulings.
1055 The United States argued that the Panel lacked the authority to
rule on the conduct, duties, and procedures of th e DSB, that the European Communities' negative
consensus arguments were not supported by the cove red agreements, and that an exhaustive Annex V
procedure had already been undertaken. 1056 Further, the United States argued that it would be
inappropriate at that juncture for the Panel to seek information, and also that it is for a panel and not
the requesting party to determine if seeking information is necessary and appropriate.1057
485. On 30 July 2007, the Panel issued a Preliminary Ruling denying all of the requests that had
been made by the European Communities. The Panel observed that "it may well be" that the initiation
of an Annex V procedure does not require a decision by positive consensus.1058 However, based on its
understanding of the phrase "the DSB shall, upon requ est, initiate the procedure" in paragraph 2 of
Annex V, the Panel opined that "some form of action is required on the part of the DSB". 1059
Because the Panel found it "clear from the minutes of the DSB meetings where this matter was
discussed that the DSB never took any action to initiate an Annex V procedure, or to designate a DSB
representative pursuant to paragraph 4 of Annex V", th e Panel considered that it was "unable to rule
that an Annex V procedure was initiated in this dispute".
1060 Accordingly, the Panel denied the
European Communities' request that it rule that an Annex V procedure had been initiated, as well as
several additional requests that the Panel considered to be dependent on a ruling that such initiation
had occurred.1061 The Panel also denied the alternative request made by the European Communities to

1055United States' response dated 22 March 2007 to the European Communities' request for preliminary
rulings. 22 March 2007 was also the due date for the European Communities' first written submission to the
Panel. The Panel also received letters from Cana da and Brazil commenting on the European Communities'
request. Both third parties took the position that the initiation of an Annex V procedure is automatic and that the
DSB must launch such a procedure at th e request of the complaining party. Brazil acknowledged that, at that
stage in the proceedings, no Annex V procedure could o ccur "{a}bsent subsequent developments before the
DSB or agreement of the parties to initiate a full Annex V procedure for DS353", but at the same time
emphasized the unlimited nature of a panel's authority under Article 13 of the DSU to seek and obtain
information from the parties to a dispute, as well as a panel's discretion to draw adverse inferences. (Comments
of Brazil dated 21 December 2006 on the European Co mmunities' request for pre liminary rulings, paras. 6
and 7) Canada stressed that "the appropriate forum to judge the actions or inactions of the DSB is the DSB
itself", and that "the Panel ha{d} no jurisdiction to do so". Canada also considered it "premature" for the Panel
to exercise its authority under Article 13 of the DSU prior to the exchange of the first written submissions of the
parties. (Comments of Canada dated 1 December 2006 on the European Communities' request for preliminary
rulings, p. 2)
1056The United States was referring to the Annex V procedure conducted in DS317, US – Large Civil
Aircraft. The relationship between DS317 and this dispute (DS353) is discussed infra, paras. 537-539.
1057Panel Report, footnote 1026 to para. 7.22.
1058Panel Report, para. 7.21.
1059Panel Report, para. 7.21.
1060Panel Report, para. 7.20.
1061See Panel Report, para. 7.22 (quoting European Communities' request for preliminary rulings,
para. 58). The relevant portion of this paragraph is set out, infra, para. 487.
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"exercise its discretion under Article 13 of the DSU to seek information from the United States prior
to having carefully reviewed the parties' first written submissions".
1062
486. Two days after the Panel issued its Prelim inary Ruling, the European Communities sent
another letter to the Panel highligh ting that, in its Ruling, the Panel had twice stated that "it may well
be" that the initiation of an Annex V procedure is not a "decision" that is subject to positive consensus
within the meaning of Article 2.4 of the DSU 1063, and requesting the Panel to clarify how such a
decision is to be taken. On 30 August 2007, the Panel declined this request based on its view that it
was being asked "to offer guidance on an issue that would not affect the resolution of this dispute".1064
The Panel noted that Article IX of the WTO Agreement provides that the Ministerial Conference and
the General Council have the exclusive authority to adopt interpretations of the covered agreements.
C. Overview of the Claims and Arguments on Appeal
487. In its appeal of this preliminary issue, the European Union makes a number of requests. First,
the European Union requests that we reverse the first and last sentences in paragraph 7.22 of the Panel
Report, which reproduces paragraph 4 of the Panel' s Preliminary Ruling. Paragraph 7.22 reads as
follows:
We therefore deny the European Communities' request that the Panel
"rule that the Annex V procedure requested by the
European Communities at the DSB meeting of 21 April 2006 and
confirmed at the DSB meeting of 17 May 2006 has been initiated".
The European Communities further requested that the Panel: (i)
"rule that the United States is unde r an obligation to cooperate and
answer the questions that have been put to it in the
European Communities' letter to th e Facilitator dated 23 May 2006";
(ii) "rule that Mr. Mateo Diego-Fernández was effectively designated
as a facilitator in that procedure, a nd in the event that the Panel does
not make this ruling, nevertheless to provide the relief set forth in the
preceding and following points"; an d (iii) "adopt such working
procedures that would allow the completion of the Annex V

1062Panel Report, para. 7.23. The Panel was of the view that "a panel will usually not be in the position
to determine what information is 'necessary and appropri ate', and will therefore usually not be in a position to
exercise its authority under Article 13 of the DSU to request information 'the panel considers necessary and
appropriate', prior to having carefully review ed the parties' first written submissions." ( Ibid.) The Panel also
referred to "the particular circumstances and procedural history of this dispute", and added that it did "not
consider it necessary or appropriate to use its discretio n under Article 13 of the DSU to remedy the parties'
inability to reach agreement on the initiation of an Annex V procedure, or to remedy the parties' inability to
reach agreement on a means for tran sferring the information obtained duri ng the DS317 Annex V procedure to
the present Panel".
 (Ibid.)
1063Letter from the European Communities to the Panel dated 2 August 2007 (quoting Panel's
1064Letter from the Panel to the parties dated 30 August 2007 responding to the European Communities'
request of 2 August 2007.
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procedure in due time before the deadline for the filing of the
European Communities' first written submission". These additional
requests are necessarily dependant upon the Panel ruling that the
Annex V procedure was initiated. We therefore deny these requests
as well. (footnotes omitted; emphasis added)
488. The European Union further requests us to comp lete the analysis and make the following four
findings
1065:
(i) that the initiation of an Annex V procedure is an action by negative consensus or is
automatic;
(ii) that, as a matter of law, all of the c onditions for the initiation of an Annex V
procedure were fulfilled in this dispute a nd such procedure was initiated and/or is
deemed to have been initiated and/or should have been initiated;
(iii) that, in refusing to cooperate in the info rmation-gathering process, the United States
failed to comply with its obligation under the first sentence of paragraph 1 of
Annex V to the SCM Agreement; and
(iv) that, pursuant to paragraphs 6 to 9 of Annex V to the SCM Agreement, the
European Union was entitled to present its serious prejudice case based on the
evidence available to it; the Panel was en titled to complete the record as necessary
relying on best information otherwise availa ble; and the Panel was entitled to draw
adverse inferences.
489. In addition, and "independently" from these re quests, the European Union requests us to
"constantly bear in mind the circumstances of this c ase", notably that "the United States has chosen to
withhold information from the European Union and the Panel" and that the United States' "refusal to
co-operate in the Annex V procedure colours the entire dispute".
1066 This means, according to the
European Union, that: (i) with respect to the United States' appeal, "the United States cannot now
reasonably criticise the Panel for its assessment of the facts or for the reasonable drawing of factual
inferences where the United States itself is responsib le for depriving the Panel of information"; and
(ii) with respect to the European Union's appe al, "{i}n case of doubt or evidentiary conflict or
equipoise, the Appellate Body should rule in favour of the European Union".1067

1065European Union's appellant's submission, para. 52.
1066European Union's appellant's submission, para. 53.
1067European Union's appellant's submission, para. 53.
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490. The United States requests that we reject this ground of the European Union's appeal.
According to the United States, the Panel corr ectly found that "initiation of an Annex V
information-gathering procedure requires an affirma tive act or decision by the DSB, irrespective of
whether by positive or negative consensus" , and that "the DSB took no such step".
1068 Should we
uphold these findings then, submits the United States, we need proceed no further with our analysis.
In the event that we nonetheless decide to address the additional issues raised and requests made by
the European Union, the United St ates submits that: (i) both the initiation of an Annex V procedure
and the designation of a facilitator require a positive consensus of the DSB; (ii) the Panel did not
have the authority to rule that an Annex V proce dure had been initiated, that the DSB had appointed a
facilitator, or that the United States had an obliga tion to answer the European Union's questions;
(iii) there is no legal authority for the Appellate Body to take adverse inferences against the
United States in the circumstances of this disp ute; and (iv) the findings requested by the
European Union are improper.
491. The United States asserts that the requests and ar guments made by the European Union fail to
identify many relevant facts. The United States highlights, for example, the Annex V process that
was conducted in 2005, during which its officials "spent thousands of hours collecting and assembling
more than 40,000 pages of documents".1069 The United States adds that the DSB representative in that
Annex V procedure made no finding that the Un ited States had failed to cooperate in those
proceedings.1070 Furthermore, in this dispute, "the Panel vigorously exercised its right to request
further information from the parties" 1071, and the United States "responded fully and completely to
every request for information made by the Panel" 1072, including by providing "voluminous responses"
to the three sets of questions that the Panel posed to the parties. 1073 The United States adds that,
throughout the proceedings, it relied in good faith on: the lack of a decision by the DSB to initiate an
Annex V procedure; Mr. Diego-Fernández' conclusion that he could not agree to the
European Communities' request that he serve as DSB representative 1074; and the Panel's preliminary
ruling and ultimate finding that no such procedure had been initiated.

1070For an explanation of the Annex V procedure conducted in 2005 in US – Large Civil Aircraft
(DS317), see infra, paras. 537-539.
1074See infra, footnote 1142.
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D. Evaluation of the European Union's Claim of Error on Appeal
1. The European Union's Request for Reversal of the Panel's Findings in
Paragraph 7.22 of the Panel Report
492. The European Union seeks to have us reverse the statements in the first and last sentences of
paragraph 7.22 of the Panel Report on the gro unds that the Panel failed to make an objective
assessment of the matter within the meaning of Ar ticle 11 of the DSU, and/or falsely exercised
judicial economy, and/or erred in the interpreta tion and application of Ar ticle 7.4 and Annex V,
paragraph 2, first sentence, to the SCM Agreement.1075
493. We understand the European Union to challenge th e analytical approach adopted by the Panel
and, in particular, its determination that all of the requests made by the European Communities had to
be rejected because, as a factual matter, there was an absence of any action by the DSB with respect to
an Annex V procedure. The European Union assert s that the Panel "simply avoided ruling on the
legal question at the root of the dispute".1076 Although "the Panel appears to have accepted, at least by
implication, that it had an implied or inherent po wer, and in fact an obligation, to rule on the
matter"1077, instead of doing so, it "erroneously re-state{d} part of the EU complaint as a request for a
ruling on a narrow factual proposition: that the DSB has initiated an Annex V procedure by action by
negative consensus"1078, and then rejected that factual proposition. Such reasoning is, in the view of
the European Union, "circular and unreasonable", since it "is exactly the absence of an Annex V
procedure about which the European Union was comp laining; and yet for the Panel that absence
becomes the very justification for rejecting the EU request".1079
494. In response, the United States observes that th e European Union's arguments do not address
the substance of the Panel's findi ngs, and submits that the Panel co rrectly understood the request for
preliminary rulings as a "request to 'rule' on the 'f actual proposition' that a particular event occurred at
two DSB meetings". 1080 The Panel found, based on a proper understanding of the DSU, that the
initiation of an Annex V procedure requires an affirmative act or decision by the DSB. Whether such
initiation is by negative or positive consensus is "beside the point". 1081 This is because the Panel
found that no formal step to initiate an Annex V procedure had been taken by the DSB.

1075European Union's appellant's submission, para. 51.
1076European Union's appellant's submission, para. 48.
1077European Union's appellant's submission, para. 49.
1078European Union's appellant's submission, para. 50. (original emphasis)
1079European Union's appellant's submission, para. 50.
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495. We begin by observing that, as the Panel reflected , in its request for preliminary rulings the
European Communities asked the Panel:
… to rule that the Annex V procedure requested by the EC at the
DSB meeting of 21 April 2006 and confirmed at the DSB meeting of
17 May 2006 has been initiated{.}
1082 (emphasis added)
496. This request was, however, but one part of a lengthy communication from the
European Communities. At the outset of its request for preliminary rulings, the
European Communities underscored the "key legal issu e hereby put before this Panel", namely, "the
procedure to be followed when 'the DSB shall, upon request, initiate the procedure'" 1083 provided for
in Annex V, paragraph 2, first sentence, to the SCM Agreement. The European Communities then set
out, over several pages, its arguments, including its interpretation of various provisions of the DSU
and the SCM Agreement, in support of its view that "the initiation of a procedure within the meaning
of Annex V, paragraph 2 SCM Agreement is not a DSB 'decision' to be adopted by consensus, but
rather a DSB 'action' that is automatically taken upon request, or at least taken unless there is negative
consensus not to take the action". 1084 This analysis was further buttressed by considerations of object
and purpose, including the following arguments:
The Annex V process is a necessary corollary and integral part of the
establishment of a Panel in a dispute settlement proceeding which,
through the establishment of a pane l, is launched by a negative
consensus. Any attempt to make this fact-finding procedure
specifically designed for serious prejudice cases subject to a veto of
the defending party would severely limit the ability of a complaining
party to successfully bring a serious prejudice case. The overall
balance and effectiveness of the SCM Agreement would be severely
hampered with far-reaching systemic implications. The complainants
must have a tool to prepare their serious prejudice case by obtaining
the necessary information before their submissions have to be made
to a panel.
1085
497. The Panel, however, did not engage with these arguments. Rather, the Panel's disposition of
the issue put before it by the European Communitie s rested entirely upon its perfunctory examination
of a single phrase within paragraph 2 of Annex V to the SCM Agreement, together with its factual
finding that the DSB had taken no action in connection with Annex V in this dispute.

1082European Communities' request for preliminary rulings, para. 58 (reproduced at Panel Report,
1083European Communities' request for preliminary rulings, para. 9.
1084European Communities' request for preliminary rulings, para. 29.
1085European Communities' request for preliminary rulings, para. 34.
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498. In its brief appraisal of paragraph 2 of Anne x V, the Panel focused solely on the phrase "the
DSB shall, upon request, initiate the procedure" a nd, in particular, on the meaning of the verb
"initiate".
1086 The Panel did not consider the significance of the other language set out in that
provision, including the explicit cross-reference to Article 7.4 of the SCM Agreement. Nor did the
Panel identify or analyze any relevant context. Although the Panel asserted that accepting the
interpretation of paragraph 2 of Annex V put forward by the European Communities "would
effectively remove the DSB from having any role in the initiation of an Annex V procedure" and
"could have far-reaching and potentiall y surprising systemic consequences that would be inconsistent
with the object and purpose of providing 'security and predictability' to the multilateral trading
system", the Panel did not identify what those syst emic consequences might be or why they would be
inconsistent with the objectives of the WTO dispute settlement system. 1087 The only other step in the
Panel's reasoning consisted of its review of the minut es of the relevant DSB meetings, en route to its
determination that it was "clear" from such minutes th at the DSB did not take any action to initiate an
information-gathering procedure.1088
499. We consider that, in seeking to reduce the issue put before it by the European Communities to
the factual issue of whether the DSB had taken acti on to initiate an Annex V procedure, the Panel
effectively refused to tackle the i ssue of law raised. The Panel's partial interpretation of one of the
provisions at issue did not address the key legal submissions advanced by the European Communities.
For example, in explaining why it was "not convinced" 1089 by the European Communities' argument,
the Panel twice made the rather cryptic observati on that "it may well be that the initiation of an
Annex V procedure is not … subject to consensus." 1090 In so stating, the Panel appears to have
considered that the issue of how an Annex V pro cedure is initiated by the DSB was not germane to
the issue that it had to decide. We have some di fficulty accepting that this was the case. The Panel
also made the rather sweeping observation that accepting the position of the European Communities
would "effectively remove the DSB from having any role in the initiation of an Annex V

1086The Panel observed that the verb "initiate" means " begin, introduce, set goin g, originate" (Panel
Report, para. 7.21 (quoting Shorter Oxford English Dictionary , 5th edn, W.R. Trumble, A. Stevenson (eds)
(Oxford University Press, 2002), Vol. 1, p. 1377) and considered that "{t}he ordinary meaning of the term
'initiate', used in the immediate c ontext of a positive duty formulated in the active voice ('the DSB shall ...
initiate'), implies that some form of action is required on the part of the DSB." (Ibid., para. 7.21)
1087Panel Report, para. 7.21.
1088Panel Report, para. 7.20.
1089Panel Report, para. 7.21. The European Communitie s contended that "the initiation of a procedure
within the meaning of Annex V, paragraph 2 SCM Agreement is … a DSB 'action' that is automatically taken
upon request, or at least taken unless there is negative consensus not to take the action."
(European Communities' request for preliminary rulings, para. 29)
1090Panel Report, para. 7.21, third and final sentences.
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procedure"
1091, even though the European Communities' ar guments clearly did envisage a role for the
DSB in such initiation.
500. Taken as a whole, the Panel's findings and stat ements in paragraphs 7.21 and 7.22 of its
Report do not adequately resolve the legal issues pr esented. The question before the Panel was not
limited to whether an Annex V procedure had been initiated; rather, the Panel was asked to rule on
how the relevant provisions of the covered agreem ents provide for an Annex V procedure to be
initiated. The Panel did not provide an answer to th at question in its truncated analysis of paragraph 2
of Annex V. By refusing to undertake a more comp rehensive analysis of the legal issue of how the
DSB is to initiate an Annex V procedure, the Pane l deprived Members of the benefit of a "a clear
enunciation of the relevant WTO law" and faile d to advance a key objective of WTO dispute
settlement, namely, the resolution of disputes "in a ma nner that preserves the rights and obligations of
WTO Members and clarifies existing provisions of the covered agreements in accordance with the
customary rules of interpretation of public international law". 1092 We also recall that, when a panel's
findings provide "only a partial resolution of the matter at issue", this amounts to "false judicial
economy" and an error of law.1093
501. For these reasons, we find that the Panel erred, in the first and last sentences of
paragraph 7.22 of the Panel Report, reproducing paragraph 4 of its Pr eliminary Ruling, in denying the
various requests made by the European Communities with respect to an Annex V procedure.
502. In so ruling, we are not asked to, and we do not, disturb the Panel's factual finding, in
paragraph 7.20 of the Panel Report, that "the DSB never took any action to initiate an Annex V
procedure" in this dispute. We are also mindful that it is not for panels, or the Appellate Body, to
review DSB actions in a particular dispute or to di rect that specific actions be taken. At the same
time, however, the DSU stipulates that panels a nd the Appellate Body are to clarify relevant
provisions of the covered agreements in accordance with the customary rules of interpretation of
public international law in such a way as to pr eserve the rights and obligations of Members and
contribute to the security and predictability of the multilateral trading system, consistently with the
objective of securing a positive solution to individual disputes. The DSU does not identify specific
provisions of the covered agreements , or particular obligations thereunder, that are exempt from or
not susceptible of interpretation by panels or the Appe llate Body. To the extent that they are at issue
in a specific dispute, even provisions relating to the functioning of the DSB or the dispute settlement

1091Panel Report, para. 7.21.
1092Appellate Body Report, China – Publications and Audiovisual Products , para. 213 (referring to
Article 3.2 of the DSU).
1093Appellate Body Report, Australia – Salmon, para. 223; see also paras. 224-226.
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process itself are properly the subject of interpre tation by panels and the Appellate Body, as the
content of such provisions also affects the rights and obligations of WTO Members. Moreover, and
as explained further below, the conduct of an Annex V information-gathering procedure bears a direct
relationship to a panel's discharge of its adjudica tive function in a dispute involving allegations of
serious prejudice.
2. The European Union's Request for Completion of the Analysis
503. Having found that the Panel erred in deny ing the European Communities' request for
preliminary rulings in connection with an Annex V procedure, we turn to the European Union's
request for completion of the analysis. We recall th at the European Union requests us to make four
specific findings1094, each of which is "a separate and inde pendent matter" and not dependent on any
other requested finding.1095 We address these in turn below.
(a) Interpretation of relevant provisions of the SCM Agreement and
the DSU
504. The first issue that the European Union seeks to have us decide is how an Annex V procedure
is initiated. According to the European Union, this is "a pure question of legal interpretation",
namely, whether an information-gathering procedure under Annex V to the SCM Agreement is
initiated, upon request, by negative consensus and/or automatically (as the European Union submits),
or through a DSB decision by consensus (as the United States submits).1096
505. The European Union submits that , when the terms of the treaty are properly interpreted, in
accordance with the Vienna Convention , and all relevant interpreta tive elements are taken into
account, it is clear that the initiation of an inform ation-gathering procedure within the meaning of
Annex V, paragraph 2 to the SCM Agreement is not a DSB decision to be adopted by positive
consensus, but a DSB action that is take n by negative consensus or automatically. 1097 T h e
European Union emphasizes the mandatory language "the DSB shall" in the first sentence of
paragraph 2 of Annex V, as well as the significance of the express cross-reference to Article 7.4 of the
SCM Agreement in that sentence. These considerations, t ogether with various other elements of the
text, context, and object and purpose, do not suppor t a conclusion that the treaty negotiators would
have obliged the DSB to act, and yet at the same time provided the defending Member in a dispute

1094See supra, para. 488.
1095European Union's appellant's submission, footnote 65 to para. 52.
1096European Union's appellant's submission, para. 9. In footnote 11 to paragraph 9, the
European Union clarifies that, when it says "by negative consensus", it means "in effe ct and/or alternatively,
automatically".
1097European Union's appellant's submission, paras. 9, 10, and 43.
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with the means to frustrate such action. Rather, initiation of an information-gathering procedure is
closely bound to the establishment of a panel in a serious prejudice dispute, and conditional only on a
request being made by the interested Member.
1098 The European Union adds that the overall balance
and effectiveness of the SCM Agreement would be compromised if the conduct of an Annex V
fact-finding procedure, specifically designed for serious prejudice cases, were to be subject to a veto
of a responding party. In addition, the European Union further submits that its interpretation is
confirmed by the preparatory work and/or the circumstances of conclusion of the treaty.
506. The United States, in contrast, submits that both the initiation of an Annex V procedure and
the designation of a facilitator require a positive consensus of the DSB. Neither can occur without the
DSB reaching a "decision", which is defined as "the action of coming to a determination or resolution
with regard to any point or course of acti on; a resolution or conclusion arrived at".
1099 Article 2.4 of
the DSU and footnote 3 to Article IX:1 of the WTO Agreement establish a general rule requiring
positive consensus for DSB decisions. According to the United States, there can be no deviation from
this general rule in the absence of an express indica tion, in the very text of a provision assigning a
responsibility to the DSB, that a di fferent decision-making rule applies. 1100 Because paragraph 2 of
Annex V does not expressly provide otherwise, the United States asserts, the initiation of an Annex V
procedure must be a decision subject to the general rule of consensus.1101
507. Several of the third participants also express view s on this issue. For Brazil, paragraph 2 of
Annex V to the SCM Agreement establishes an automatic process that requires the DSB to initiate the
procedure whenever it is so requested, and does not permit the DSB to decide not to do so even
through negative consensus. According to Brazil, the DSB has no choice to make in respect of the
functions assigned to it and hence no new decision or approval by consensus is required. Rather, the
WTO membership already consented to the perfo rmance of these functions by the DSB by accepting
an agreement that assigns an obligation to the DS B. Brazil adds that interpreting the relevant
provisions as allowing the subsidizing Member to block unilaterally the initiation of an Annex V
procedure would contradict the text of those pr ovisions and undermine the ability of Members to
bring complaints under the SCM Agreement, particularly in cases where much of the evidence relating
to subsidization rests with the government of the subsidizing Member. In Canada's view, the Panel

1098European Union's appellant's submission, para. 34.
1099United States' appellee's submission, para. 54 (quoting The New Shorter Oxford English Dictionary,
4th edn, L. Brown (ed.) (Clarendon Press, 1993), Vol. 1, p. 608).
1100The United States points out that this is the case in Articles 6.1, 16.4, 17.14, 22.6, and 22.7 of the
DSU, and the corresponding provisions of the SCM Agreement, which identify circumstances in which the DSB
is to operate pursuant to a rule of "negative consensus", namely, when it establishes panels, adopts panel and
Appellate Body reports, and authorizes countermeasures or the suspension of concessions. (United States'
appellee's submission, para. 55)
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was correct to limit its finding to whether the Anne x V procedure had been initiated and not to make
findings on how the procedure is to be initiated. Canada does not consider that panel and Appellate
Body proceedings are the proper fora to discuss how the DSB is to initiate an Annex V procedure.
Rather, such discussions should take place within the DS B itself. China agrees with the Panel that it
is the DSB that must initiate an Annex V proce dure, and that this does not "occur automatically"
1102
upon request, in the absence of any action by the DSB. Korea also supports the Panel's view that the
relevant provisions of Annex V and the DSU mean that the init iation of the Annex V proceeding
requires some positive action by the DSB.
508. Before turning to the specific interpretative i ssue raised, we wish to identify briefly the
broader scheme within which it is situated. Part III of the SCM Agreement defines the circumstances
in which a Member's use of subsidies is actiona ble, including when such subsidies cause adverse
effects in the form of serious prejudice to another Member's interests. Article 7 sets out the remedies
that may be obtained in such circumstances, including, in paragraph 4, the right to obtain the
establishment of a panel by the DSB by negative consensus in the event that consultations do not yield
a positive solution to the dispute.
1103 Article 6 of the SCM Agreement defines "serious prejudice" and
refers, on two occasions, to Annex V. 1104 Annex V to the SCM Agreement is entitled "Procedures for
Developing Information Concerning Serious Prejudice" , and contains nine pa ragraphs outlining an
information-gathering procedure to be used in WTO disputes where the complaining party alleges that

1102China's third participant's submission, para. 4.
1103Article 7.4 of the SCM Agreement provides:
If consultations do not result in a mutually agreed solution within 60 days,
any Member party to such consultations may refer the matter to the DSB for
the establishment of a panel, unless the DSB decides by consensus not to
establish a panel. The composition of the panel and its terms of reference
shall be established within 15 days from the date when it is established.
(footnote omitted)
1104Paragraphs 6 and 8 of Article 6 of the SCM Agreement provide:
6. Each Member in the market of which serious prejudice is alleged to have
arisen shall, subject to the provisions of paragraph 3 of Annex V, make
available to the parties to a dispute arising under Article 7, and to the panel
established pursuant to paragraph 4 of Article 7, all relevant information that
can be obtained as to the changes in market shares of the parties to the
dispute as well as concerning prices of the products involved.
8. In the absence of circumstances refe rred to in paragraph 7, the existence
of serious prejudice should be determined on the basis of the information
submitted to or obtained by the panel, including information submitted in
accordance with the provisions of Annex V.
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another Member's subsidization has caused serious prejudice to its interests. The provisions of
Annex V refer three times to Article 7.4 of the SCM Agreement.
1105
509. All of Annex V, together with, inter alia , Articles 6.6, 7.4, 7.5, and 7.6 of the
SCM Agreement, are listed as special or additional rul es and procedures under Appendix 2 to the
DSU. We recall in this connection that, pursuant to Article 1.2 of the DSU, the provisions of both the
SCM Agreement and the DSU apply in the context of a di spute involving allegations of actionable
subsidies causing serious prejudice, except that, to the extent that there is a conflict, those provisions
of the SCM Agreement identified in Appendix 2 to the DSU prevail, including over Article 2.4 of
the DSU.1106
510. Returning to the specific question raised by th e European Union on appeal, we observe that
the only direct reference to the initiation of an Annex V procedure is found in the second paragraph of
Annex V. The first sentence of that provision uses mandatory language to charge the DSB with
responsibility for initiating an information-gathering procedure, in the following terms:
In cases where matters are referred to the DSB under paragraph 4 of
Article 7, the DSB shall, upon re quest, initiate the procedure to
obtain such information from the government of the subsidizing
Member as necessary to establish the existence and amount of
subsidization, the value of total sales of the subsidized firms, as well
as information necessary to analyze the adverse effects caused by the
subsidized product.
66
66 In cases where the existence of serious prejudice has to be demonstrated.

1105Paragraph 1 of Annex V provides:
Every Member shall coop erate in the developmen t of evidence to be
examined by a panel in procedures under paragraphs 4 through 6 of
Article 7. The parties to the di spute and any third-country Member
concerned shall notify to the DSB, as soon as the provisions of paragraph 4
of Article 7 have been invoked, the organization responsible for
administration of this provision within its territory and the procedures to be
used to comply with requests for information.
In addition to the reference to establishment of a panel in the first sentence of the second paragraph of
Annex V (reproduced infra, para. 510), the first sentence of paragraph 5 of Annex V stipulates that "{t}he
information-gathering process … shall be completed within 60 days of the date on which the matter has been
referred to the DSB under paragraph 4 of Article 7."
1106See Appellate Body Report, Guatemala – Cement I , para. 65; and Appellate Body Report, US –
FSC, para. 159. Article 30 of the SCM Agreement reinforces this overall structure by providing that:
{t}he provisions of Articles XXII and XXIII of GATT 1994 as elaborated
and applied by the Dispute Settlement Understanding shall apply to
consultations and the settlement of disputes under this Agreement, except as
otherwise specifically provided herein.
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511. The DSB's obligation to initiate under paragra ph 2 of Annex V is expressly subject to two
conditions. First, there must be a request by a WTO Member for initiation of an Annex V
procedure.
1107 Second, the relevant matter must be "referred to the DSB under paragraph 4 of
Article 7". Article 7.4 of the SCM Agreement supplies the legal basis for the DSB's establishment of a
panel in disputes involving claims brought under Part III of the SCM Agreement. In other words, the
text of the first sentence of pa ragraph 2 of Annex V itself makes the DSB's establishment of a panel
the second condition for initiation of an Annex V proce dure. Accordingly, we read the first sentence
of paragraph 2 of Annex V to mean that, when a request by a Member for an Annex V procedure is
made and a panel established, the DSB is required to discharge a specific function, namely, to initiate
that Annex V procedure. This straightforward and specific administrative action is a procedural
incident of the DSB's decision to establish a pane l when the initiation of an Annex V procedure has
been requested. As such, this function that the DSB is required to carry out contrasts with other
responsibilities assigned to the DSB that have a more deliberative nature, a nd which require the DSB
to discuss and to make a choice among multiple courses of action.
512. Other provisions of Annex V also reinforce the importance of the establishment of the panel
to an Annex V procedure. For example, the dut y of Members to cooperate in the gathering of
information is, under paragraph 1 of Annex V, activated as soon as a complainant has invoked
Article 7.4 and sought establishment of a panel. The time-limit within which an information-
gathering procedure must be completed is, as set out in paragraph 5 of Annex V, fixed by reference to
the date of establishment of the panel. These provisions, too, affirm the link between establishment of
a panel and the initiation of an Annex V procedure, underline the primacy of Article 7.4, and suggest
that the mandatory functions assigned to the DSB unde r paragraph 2 of Annex V are executory, in the
sense that the obligation is both triggered by and discharged upon establishment of a panel, provided
that a request for initiation of an Annex V procedure has been made by a Member.
513. Both the title of Annex V ("Procedures for Developing Information Concerning Serious
Prejudice") and Articles 6.6 and 6.8 of the SCM Agreement make clear that Annex V is a procedure to
be used when a complainant alleges that another Member's subsidization has caused serious prejudice
to its commercial interests. Disputes involving claims of serious prejudice are characterized by the
need for a complainant to adduce extensive evidence of the market effects of the challenged subsidies,
including in third-country markets, as well as by the fact that much of the information relating to the

1107We note in this regard that complaining Members that have sought initiation of an Annex V
procedure have always included that request in their requests for establishment of a panel. In addition to the
request for establishment of a panel in this dispute, see the panel requests in Indonesia – Autos (WT/DS54/6,
complaint by the European Communities; WT/DS59/6, complaint by the United States); US – Upland Cotton
(WT/DS267/7); Korea – Commercial Vessels (WT/DS273/2; WT/DS273/3); EC and certain member States –
Large Civil Aircraft (WT/DS316/2); and US – Large Civil Aircraft (WT/DS317/2).
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subsidization in question will be within the sole c ontrol of the government of the responding Member
or found only in the territories of third-country ma rkets in which the subsidized products are sold.
Recognition of the challenges that such types of di sputes present for a complainant is evident in the
design and structure of Articles 6 and 7 of the SCM Agreement, as well as the entirety of Annex V.
514. Annex V and Article 6.6 of the SCM Agreement prominently and unambiguously require
cooperation from all WTO Members that may be invol ved in a serious prejudice dispute. The first
paragraph of Annex V imposes mandatory duties of cooperation on the parties to such dispute, as well
as upon all WTO Members whose markets may be relevant to the issues in dispute.
1108 Article 6.6 of
the SCM Agreement likewise mandates cooperation with respect to a specific type of information by
providing that each Member in whose market serious prejudice is alleged to have occurred shall make
available to the parties to the dispute and to the pa nel "all relevant information" relating to prices and
changes in market share.
515. The provisions of Annex V also convey the importance of the time at which and within which
an Annex V procedure is to be conducted. Para graph 5 stipulates that the information-gathering
procedure should be completed within 60 days of the date of establishment of the panel, and
paragraph 4 of Annex V refers to "the timely de velopment of the information necessary". The latter
paragraph also refers to the " subsequent multilateral review of the dispute", thereby making clear that
the information-gathering is meant to be completed prior to the panel's substantive consideration of
the matter.1109
516. Modalities for the information-gathering process, as well as how the results of the process are
to be used in the panel proceedings, are also pr ovided for. Paragraphs 5 through 9 prescribe a time
period for completion of this process and address the transfer of information by the DSB
representative to the panel, the use by the panel of su ch information, and the steps to be taken by the
panel and the complainant in the event of non-cooperation in the information-gathering process by the
responding Member. Article 6.8 of the SCM Agreement specifies that the existence of serious

1108Specifically, "{e}very Member shall cooperate in the development of evidence to be examined by a
panel in procedures under paragraphs 4 through 6 of Article 7". Paragraph 1 of Annex V also imposes a
concrete obligation on each party to the dispute and any third-country Member concerned to notify the DSB of
the organization within its territory that will handle requests for information upon establishment of a panel.
1109Emphasis added. Paragraph 4 of Annex V provides:
The DSB shall designate a representative to serve the function of facilitating
the information-gathering process. The sole purpose of the representative
shall be to ensure the timely development of the information necessary to
facilitate expeditious subsequent multilateral review of the dispute. In
particular, the representative may suggest ways to most efficiently solicit
necessary information as well as encourage the cooperation of the parties.
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prejudice should be determined by a panel on the basis of the information submitted to or obtained by
it, "including information submitted in accordance with the provisions of Annex V".
517. In this way, Annex V sets out a comprehens ive scheme designed to collect the kind of
information that will need to be relied upon by the parties involved in a serious prejudice dispute.
This scheme aims to foster the cooperative exch ange of information at the earliest possible
opportunity, and thereby to contribute to the pr ompt resolution of these particularly complex
disputes.
1110 A cornerstone of the scheme is the obligati on to cooperate that the first paragraph of
Annex V and Article 6.6 of the SCM Agreement place on all Members. This obligation is given teeth
through paragraphs 6 through 9 of Annex V, which put responding parties on notice of the potential
consequences that may flow from non-cooperation. The provisions of Annex V, together with
Articles 6.6, 6.8, and 7.4 of the SCM Agreement, reflect Members' recognition of the practical realities
of serious prejudice disputes, and their intention to create a process to flow into, supplement, and
largely precede a panel's substantive adjudication of such disputes, without materially delaying or
impinging upon the substance of their adjudication.1111
518. By imposing an obligation to cooperate in th e gathering of information, together with
sanctions for non-cooperation, Annex V seeks to ensure that a complaining party is afforded access to
information critical to its claims, and that such Member is not hampered, in the subsequent panel
proceedings, in the event of a responding party's no n-cooperation in an Annex V procedure. Thus,
paragraph 6 enables a complaining party to pr esent its case based on the evidence available to it
(together with evidence of non-cooperation in th e Annex V procedure), and enables a panel to
complete the record by relying on the best informat ion otherwise available. Paragraph 7 of Annex V
affirmatively directs a panel to draw adverse in ferences from "instances of non-cooperation" by a
party, and paragraph 8 makes clear that whether a party has been uncooperative is to be determined by
the panel, taking into account the advice of the facili tator "as to the reasonableness of any requests for
information and the efforts made by parties to co mply with these requests in a cooperative and timely
manner". Paragraph 9 explicitly confirms that a pa nel's right to seek additional information is not
curtailed by the fact that an Annex V procedure was conducted, while at the same time cautioning
panels not to give a party that engaged in "unreasonable non-cooperation" in the Annex V procedure a

1110In our view, the conduct of an Annex V procedure not only contributes to better adjudication of a
dispute, it also enhances the scope for settlement of the dispute without adjudication, consistent with Members'
preference, as expressed in Article 3.7 of the DSU, for mutually agreed solu tions to disputes. This is because
the full and early exchange of information provides parties with a better understanding of the complexities of the
dispute and of the merits of their respective claims and defences.
1111Paragraph 9 of Annex V makes clear that the completion of an Annex V procedure does not
circumscribe a panel's fact-finding authority in the related panel proceedings, and that a panel remains able to
seek information "which was not adequately sought or developed during that process" when it deems such
information "essential to a proper resolution to the dispute".
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fresh opportunity to adduce information favourable to its position when that information was not
provided in the Annex V procedure.
519. At the same time, Annex V limits the scope for a complainant to abuse an information-
gathering procedure or transform it into an open- ended and unduly burdensom e fishing expedition.
Several aspects of the design of the Annex V proced ure indicate that a complaining party is required
to be disciplined and focused in th e information that it seeks. In particular: (i) the process is to be
completed within a maximum of 60 days (paragraph 5); (ii) the information to be sought from the
subsidizing Member is not any information, but rather "such information … as necessary to establish
the existence and amount of subsidization, the value of total sales of the subsidized firms, as well as
information necessary to analyze the adverse effects caused by the subsidized product"
(paragraph 2)
1112; and (iii) the reference in paragraph 8 of Annex V to the facilitator's advice as to
"the reasonableness of any requests for information" suggests that requests for information made by a
party in an Annex V procedure must be reasonable. Furthermore, footnote 67 to paragraph 2 of
Annex V stipulates that the process "shall take into account the need to protect information which is
by nature confidential or which is provided on a confidential basis by any Member involved in this
process".1113 Finally, Annex V does not relieve a complain ing party of its burden of proof. Whether
or not an Annex V procedure has taken place, every complaining Member must identify specific
evidence and put forward legal arguments sufficient to demonstrate the alle ged inconsistency of a
measure with a relevant obligation.
1114 Annex V seeks, rather, to ensure that a Member is not
prevented from gaining access to the information that it considers necessary to its prima facie case.

1112Emphasis added.
1113Annex V also imposes limits on the information to be supplied by third country Members. For
example, the information to be supplied is information "which is not otherwise r easonably available from the
complaining Member or the subsidizing Member", and th e procedure should be "administered in such a way as
not to impose an unreasonable burden on the third-country Member" (paragraph 3). Paragraph 5 of Annex V
also sets out an illustrative list of the type of information that is to be collected in the course of the procedure
and transmitted to the panel (see, in particular, third and fourth sentences).
1114Appellate Body Report, US – Wool Shirts and Blouses , p. 16, DSR 1997:I, 323, at 335. As the
Appellate Body stated in US – Gambling:
A complaining party may not simply s ubmit evidence and expect the panel
to divine from it a claim of WTO-inconsistency. Nor may a complaining
party simply allege facts without relating them to its legal arguments.
(Appellate Body Report, US – Gambling , para. 140 (footnote omitted)) The same holds true with respect to
information and evidence that has entered the panel record via transmission by a facilitator following an
Annex V procedure. It is for the parties, not the panel, to make out their respective claims and defences,
including through reliance upon, as they see fit, the info rmation collected in an Anne x V procedure. See also
Appellate Body Report, Japan – Agricultural Products II , para. 129; Appellate Body Report, Canada –
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520. Overall, the structure of the information- gathering mechanism set out in Annex V and
Articles 6.6 and 6.8 of the SCM Agreement seems to us to reinforce the vital role that the
information-gathering procedure plays in the contex t of a dispute involving an allegation of serious
prejudice. An interpretation of paragraph 2 of Annex V that would enable a responding Member to
frustrate that role by preventing the DSB from initiating such a procedure would be at odds with WTO
Members' manifest intention to promote the early a nd targeted collection of information pertinent to
the parties' subsequent presentation of their cases to the panel, as well as with the duty of cooperation
to which such a responding Member is subject.
521. We note that the role of the DSB in connection with Annex V procedures is set out not only in
paragraph 2, but also in paragr aph 4 of Annex V. Paragraph 4 requires the DSB to designate a
representative (commonly referred to as a "facilitato r") in connection with the information-gathering
process.
1115 The United States relies upon this provision in support of its position that the initiation by
the DSB of an Annex V procedure is by positive con sensus. For the United States, the similarity in
the language used in these two provisions shows that th e DSB is to take both actions in the same way,
and that can only be through consensus. The Unite d States argues that, when both of these provisions
are considered together with the overall structure of Annex V, it is clear that the European Union's
interpretation of paragraph 2 of Annex V would be "unworkable". 1116 Nonetheless, we are not
persuaded that this is so. It is true that the la nguage of paragraph 2 of Annex V ("the DSB shall, upon
request, initiate the procedure") is similar to th at of paragraph 4 ("{t}he DSB shall designate a
representative") in that both impose mandatory obligations on the DSB. We are not asked to and need
not, in this dispute, rule on the process to be followed by the DSB in appointing an Annex V
facilitator. The DSB is the body responsible fo r administering the dispute settlement rules and
procedures, and the Chairman of the DSB serves as th e representative of the DSB within the WTO. It
seems to us that, as the representative of the DSB, the Chairman is in principle responsible for
discharging the function of facilitating an Annex V procedure until such time as that function is
delegated through the DSB's designation of another individual as a facilitator pursuant to paragraph 4
of Annex V.
522. Additional relevant context, in our view, is f ound in Article 1.2 of the DSU, which deals with
the special or additional dispute settlement rules found in other agreements (including Annex V and
Article 7.4 of the SCM Agreement). The last sentence of Article 1.2 stipulates that, in the event of a
conflict between the DSU and the special or addition al rules and procedures listed in Appendix 2 to
the DSU:

1115Paragraph 4 of Annex V is set out supra, footnote 1109.
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{t}he Chairman shall be guided by the principle that special or
additional rules and procedures should be used where possible , and
the rules and procedures set out in this Understanding should be used
to the extent necessary to avoid conflict. (emphasis added)
This provision expresses Members' preference for the use of the special or additional rules and
procedures. Such preference is logical given that the special or additional rules listed in Appendix 2
were crafted by the negotiators of each indivi dual agreement with a view to the particular
characteristics of disputes that might arise unde r such agreement and, in the case of the
SCM Agreement, under each Part of that Agreement.
523. In contrast, if a positive consensus rule were to apply to the initiation of an Annex V
procedure, as the United States contends, this w ould mean that an Annex V procedure cannot be
initiated whenever there is a formal objection by a single WTO Member. This would enable
individual Members to prevent the use of this de tailed, carefully tailored mechanism for gathering
necessary information, even though the DSB's initiation of such information-gathering procedures and
Members' duty to cooperate in them are both ex pressed as mandatory. Furthermore, if initiation
required positive consensus, two consequences could flow for which there may be no remedy in the
panel proceedings. First, the parties to the disput e could be denied access to critical information from
third-country Members if those Members choose not to become third parties in the dispute. Second, if
the objection to the initiation of the Annex V pro cedure comes from a WTO Member other than the
responding party or a concerned third-country Memb er, there may be no basis upon which the Panel
could, pursuant to paragraphs 6 a nd 7 of Annex V, allow the complainant to rely upon best available
evidence and/or draw adverse inferences based on the conduct of the respondent.
1117
524. We are of the view that, taken together, the a bove considerations make clear that the first
sentence of paragraph 2 of Annex V to the SCM Agreement must be understood as requiring the DSB
to take action, and that such action occurs automatic ally when there is a requ est for initiation of an
Annex V procedure and the DSB establishes a panel. 1118 This provision does not conflict with
Article 2.4 of the DSU; rather, it establishes the conditions which, when satisfied, necessarily result
in the initiation of an Annex V procedure by the DSB.

1117Of course, irrespective of whether an Annex V pr ocedure was initiated or conducted, a panel would
always have the authority, during the panel proceedings, to seek additional information pursuant to Article 13 of
the DSU, and to draw adverse inferences from a party's failure to produce requested information.
1118One Member of the Division wishes to qualify this understanding of paragraph 2 of Annex V to the
SCM Agreement. In the opinion of this Member, to initiate an Annex V procedure, an act of the DSB is
required. The DSB's initiation of an Annex V procedure in the manner described above can occur only when
the complaining Member's request for an Annex V procedure forms an integral part of that Member's request for
the establishment of a panel.
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(i) Additional considerations purs uant to Article 32 of the
Vienna Convention
525. The European Union also relies on the negotiating history of the SCM Agreement as
additional confirmation for its understanding of th e Annex V procedure, as well as relevant context
found elsewhere in the SCM Agreement. The European Union emphasizes that Annex V originated in
a proposal made by the United States, and asserts that, from the first time this proposal was
incorporated in the draft text of the Agreement, it was "clear" that "the Annex V procedure was tied-to
the panel request, in the sense that the same proce dures would apply", and that "when the reference to
negative consensus was subsequently added to Article 7.4 of the SCM Agreement it was well
understood that the linked Annex V procedure would follow the same procedure".
1119
526. We recall that, under Article 32 of the Vienna Convention , preparatory work and the
circumstances of a treaty's conclusion are releva nt to confirm the interpretation reached under
Article 31. In our view, while the negotiating history of the SCM Agreement supplies little concrete
insight as to how Members intended the Annex V procedure to be initiated, it does confirm our
understanding of the reasons why Members considered such a procedure to be a key part of serious
prejudice disputes.
527. The first two Chairman's drafts of the SCM Agreement did not contain any precursor to
Annex V. On 5 October 1990, the United Stat es submitted a "Proposal for Improvement in
Procedures for Dealing with Adverse Effects in the Home Market of the Subsidizing Country and in
Third-Country Markets".1120 This proposal referred to a provision in the existing draft text imposing
an obligation on all Members in whose market adver se effects are alleged to arise, to provide "all
relevant information that can be obtained as to the ch anges in market shares of the disputing parties as
well as concerning prices of the products involved" 1121, and expressed concern about the absence of
"an information-gathering mechanism or a mean s for assuring the co-operation of the party in
possession of information necessary to demonstrate adverse effects". 1122 The United States
emphasized the challenges facing a complainant trying to prepare an adequate case given its
dependence upon the cooperation of the subsidizing c ountry or third countries, and stressed that the
"problem of developing a proper case is especially acute where third-countries are involved because
the information necessary to show adverse effects caused by subsidized products is not necessarily

1119European Union's appellant's submission, para. 45.
1120MTN.GNG/NG10/W/40.
1121MTN.GNG/NG10/W/38/Rev.1. This provision eventually became, with some modifications, the
current Article 6.6 of the SCM Agreement.
1122MTN.GNG/NG10/W/40, p. 2.
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within the reach of the complaining party".
1123 The United States explained that it was proposing an
information-gathering procedure "in order to im prove the multilateral rules and procedures for
demonstrating adverse effects required to show seri ous prejudice, and for enhancing the credibility of
the remedies in this area", and added that its proposal "should especially enhance the ability of
countries with the most limited national resources in preparing cases to bring to multilateral dispute
settlement".1124 The next draft text circulated by the Chairman, on 2 November 1990, contained
several modifications that appeared to be b ased on the United States' proposal, including a first
version of Annex V.1125
528. With respect to the remedies for actionable subs idies, all of the drafts circulated by the
Chairman contained the same provisions—namely, Articles 7.4 and 7.5. 1126 These were the
predecessors of the provisions of the SCM Agreement bearing the same Article number, but differed
from them in two main respects. First, Articles 7.4 and 7.5 of the drafts provided for the matter to be
referred to, and reviewed by, the Committee on Subsidies and Countervailing Measures (the
"Subsidies Committee"), rather than the DSB. Second, Articles 7.4 and 7.5 of the drafts did not
mention establishment or composition of a panel or th e establishment of its terms of reference and, in
particular, did not refer to the establishment of a panel by negative consensus.
529. The negotiations on dispute settlement were c onducted simultaneously with the negotiations
on subsidies and countervailing duties, but by a separate negotiating group. In his 21 September 1990
draft text, the Chairman of the Negotiating Group on Dispute Settlement incorporated a "negative
consensus" approach in two of four possible decision-making options for adopting panel reports.
1127
The Chairman's revised draft of 19 October 1990 still contained options, but came closer to endorsing
a negative consensus rule1128, and also introduced the same options with respect to other aspects of the
panel process, such as the establishment of panels. Subsequently, the negative consensus rule for the
establishment of panels, the adop tion of panel/Appellate Body repor ts, and the authorization of
suspension of concessions formed part of the agreem ent on dispute settlement included as part of the

1123MTN.GNG/NG10/W/40, p. 2.
1124MTN.GNG/NG10/W/40, p. 3.
1125MTN.GNG/NG10/W/38/Rev.2. The provision that would eventually become Article 6.8 of the
SCM Agreement was also added to this draft text for the first time.
1126The four Chairman's draft texts contained the following:
7.4 If a mutually acceptable solution ha s not been reached within sixty
days of the request for consultations, any signatory party to such
consultations may refer the matter to the Committee.
7.5 The Committee shall, upon request, review the matter referred to it
and shall present its conclusions within 120 days.
(MTN.GNG/NG10/W/38, and Rev.1, Rev.2, and Rev.3)
1127Draft Text on Dispute Settlement, 21 September 1990, MTN.GNG/NG13/W/45, p. 2.
1128Chairman's Text on Dispute Settlement, 19 October 1990, p. 9.
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"Draft Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations" at
the Brussels 1990 Ministerial Conference.
1129
530. Thus, the negotiating history of the SCM Agreement reveals that, at the time that Annex V
was introduced into the text of what would become the SCM Agreement, the draft provided that the
Subsidies Committee was to have responsibility both fo r adjudicating allegations of serious prejudice,
as well as for the initiation of an Annex V procedure. No express provision was made as to how such
initiation was to occur. At that time, the concu rrent negotiations on disput e settlement were moving
towards acceptance of a negative con sensus rule for the establishment of panels, adoption of reports,
and authorization of suspension of concessions. The draft SCM Agreement was subsequently
modified as part of the process of harmonizing all of the Uruguay Round agreements to bring them
into line with the single undertaking and the unifie d system of dispute settlement, and the express
reference to the establishment of a panel by negative consensus was added to Article 7.4.
(ii) Summary of interpretative considerations
531. We have considered the meaning of the oblig ation that paragraph 2 of Annex V imposes on
the DSB, namely, that "the DSB shall, upon request , initiate" an information-gathering procedure in
disputes involving claims of serious prejudice. Fo r the reasons set out above, we have reached the
view that the text and context of paragraph 2 of Annex V, together with the object and purpose of the
WTO dispute settlement system as reflected in the DSU and the SCM Agreement, support an
understanding of this provision as imposing an obligation on the DSB to initiate an Annex V
procedure upon request, and that such DSB action occu rs automatically when there is a request for
initiation of an Annex V procedure and the DSB establishes a panel.
1130
532. The first sentence of paragraph 2 of Annex V, along with other provisions of Annex V, refers
directly to the establishment of a panel pursuant to Article 7.4 of the SCM Agreement. Provided that a
request for initiation of an Annex V procedure has been made, the DSB's initiation of such a
procedure is a procedural incident of the estab lishment of a panel in serious prejudice cases. The
function assigned to the DSB under paragraph 2 of Annex V is executory in nature, and is
automatically discharged by it once the two speci fied conditions precedent are satisfied. This
interpretation of paragraph 2 of Annex V also fi nds support in the structure of the information-

1129MTN.TNC/W/35/Rev.1/3.
1130One Member of the Division wishes to qualify this understanding of paragraph 2 of Annex V to the
SCM Agreement. In the opinion of this Member, to initiate an Annex V procedure, an act of the DSB is
required. The DSB's initiation of an Annex V procedure in the manner described above can occur only when
the complaining Member's request for an Annex V procedure forms an integral part of that Member's request for
the establishment of a panel.
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gathering mechanism set out in Annex V and Articles 6.6 and 6.8 of the SCM Agreement, and in
Members' expressed preference, as set out in Article 1.2 of the DSU, for the use of the special or
additional dispute settlement rules set out in the SCM Agreement and listed in Appendix 2 to the DSU.
533. In contrast, an interpretation of paragraph 2 of Annex V that would enable a single WTO
Member to frustrate the important role that an information-gathering procedure plays in serious
prejudice disputes by preventing the DSB from initiating such a procedure would be at odds with
WTO Members' clear intention to promote the early and targeted collection of information pertinent
to the parties' subsequent presentation of their cases to the panel, and with th e obligation to cooperate
in the collection of information in serious prejudice disputes imposed on all Members under
paragraph 1 of Annex V and Article 6.6 of the SCM Agreement. Such an interpretation would also
hamper the collection of information from third- country WTO Members and delay until the stage of
panel proceedings the collection of necessary information. The initiation and cond uct of Annex V
procedures have important consequences for the abilit y of parties to a dispute to present their case,
and for panels and the Appellate Body to fulfil their respective roles in complex serious prejudice
disputes under the SCM Agreement. Annex V procedures are key to affording parties early access to
critical information, which may in turn serve as the foundation upon which those parties will construct
their arguments and seek to satisfy their evidentia ry burden. Moreover, the initiation and conduct of
such procedures are key to the ability of panels to make findings of fact that have a sufficient
evidentiary basis or to draw negative inferences from instances of non-cooperation.
(b) The European Union's remaining requests for completion of the
analysis
534. We turn now to the European Union's remaining three requests for completion of the analysis,
namely, that we find that: (i) as a matter of law, a ll of the conditions for the initiation of an Annex V
procedure were fulfilled in this dispute and such pr ocedure was initiated, and/or is deemed to have
been initiated, and/or should have been initiated; (ii) in refusing to cooperate in the information-
gathering process, the United States failed to comply with its obligations under the first sentence of
paragraph 1 of Annex V to the SCM Agreement; and (iii) the European Communities was entitled to
present its serious prejudice case ba sed on the evidence available to it, the Panel was entitled to
complete the record as necessary relying on best in formation otherwise available, and the Panel was
entitled to draw adverse inferences.
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535. With respect to the first of these requests by the European Union, we recall that, in our
interpretation of paragraph 2 of Annex V above, we identified th e two conditions that must be
satisfied in order to trigger the initiation of an A nnex V procedure, namely, a request for initiation by
a Member, and the DSB's establishment of a panel. In this dispute, the Panel made an explicit finding
that no Annex V procedure had been initiated by the DSB.
1131 Even if this finding rested upon a
mistaken and incomplete interpretation of paragra ph 2 of Annex V, it is uncontested that no Annex V
procedure was carried out as a consequence of the requests made by the European Communities
in 2007 and the establishment of the Panel in that sa me year. More than five years later, we do not
see how the findings that the European Union seeks to have us make, on appeal, would contribute to
resolving the dispute at this stage. Accordingl y, it is unnecessary for us to make a ruling on whether
the conditions for the initiation of an Annex V procedure were fulfilled.
536. Turning to the European Union's other request s, we consider that these raise a number of
associated issues that flow from the sui generis circumstances of this dispute and that have been
largely unexplored by the participants. To illustrate why this is so, it is necessary to outline briefly
the procedural history of this dispute as well as the dispute that carries the DS number 317.
537. This dispute, which carries the DS number 353, is at least to some extent the progeny of an
earlier dispute that bore the DS number 317: US – Large Civil Aircraft .
1132 In 2005, an Annex V
procedure was initiated and completed in that DS317 proceeding 1133, but both at the time of
establishment of that panel and throughout the A nnex V procedure the United States took the position
that the European Communities' panel request improperly included 13 measures that had not been
included in its original consultations request. For this reason, during the Annex V procedure, the
United States refused to respond to questions rela ting to those 13 measures. It is nevertheless
uncontested that the United States did respond to ot her questions, and that a voluminous record was
transmitted from the facilitator to the DS317 panel. Due to the inability of the participants to agree on

1131Panel Report, para. 7.20.
1133Simultaneous Annex V procedures were initiated by the DSB and conducted by the same facilitator
for DS317 and for DS316 (EC and certain member States – Large Civil Aircraft).
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the modalities for the transfer of that record
1134, however, the information gathered in the DS317
Annex V procedure does not form part of the record in this dispute, and we have no way of knowing
what it contains.
538. In the light of the position adopted by the Un ited States in the DS317 Annex V procedure, the
European Communities submitted an expanded sec ond request for consultations just before
establishment of the panel 1135, as well as an expanded second request for establishment of a panel in
DS317 just as the Annex V procedure was coming to a close. 1136 A second panel was established by
the DSB shortly thereafter, on 17 February 2006. 1137 At that time, the dispute still bore the DS
number 317. The European Communities' second requ est for establishment of a panel contained a
request that the DSB initiate an Annex V proce dure, and the European Communities sought initiation
of an Annex V procedure at the DSB meeting at which the second panel was established, as well as at
four subsequent DSB meetings during the spring of 2006. 1138 Each time, the United States opposed
initiation. The main reasons given by the United States for its inability to agree to an Annex V
procedure were: that an Annex V procedure had already been completed in DS317; that the
United States had cooperated extensively in th at first Annex V procedure; and that the
European Communities was unilaterally seeking to re-open that burdensome procedure or obtain a

1134Panel Report, paras. 7.19 and 7.23. We note that, on 14 January 2007, at the Panel's prompting, the
United States submitted in writing a proposal to make available to the Panel the materials submitted during the
DS317 Annex V procedure, via a DSB decision requesting the facilitator to transmit the materials to the Panel.
In responding to this proposal, by letter dated 17 Ja nuary 2007, the European Communities contended that the
proposal represented "only a partial solution to its requ est", given the United States' refusal to answer certain
questions in that procedure as well as the fact that "the information produced in case DS317 has become to a
significant extent outdated by lapse of time." The European Communities added that it saw "no legal or
practical necessity to make the transfer of documents dependent on a decision of the DSB" since the parties
"do not need permission from the DSB to allow their own documents and submissions to be communicated to
the Panel in this case." In a subsequent letter, dated 7 February 2007, the European Communities stated that
"it does accept the US proposal as a pa rtial solution to its pre liminary ruling request", but added that it had
not reached any agreement with the United States on the implementation of the proposal. The
European Communities reiterated that there was no legal or practical necessity for a DSB decision, in particular
because the European Communities was not seeking to use the info rmation submitted by third-country WTO
Members to the facilitator. The United States reacted to the European Communities in a subsequent letter to the
Panel, dated 20 February 2007, in which it characterized the European Communities "alternative proposal" as a
proposal "for an unbalanced process that would deprive the Panel of access to information from third-country
Members or the work of the Facilitator" and summarized the benefits of its own proposal. The United States
added that "the EC proposal is to grant the EC an unwarranted new Annex V process" and that, since "the EC
made this request even before presenting a single ar gument or piece of evidence, it cannot possibly have
established a prima facie case. Therefore, it is difficult to conceive of the EC's proposal as anything but an
effort to have the Panel make the EC's case for it".
1135Originally circulated as document WT/D S317/1/Add.1, and amended by WT/DS353/1,
WT/DS317/1/Add.2. See Panel Report, para. 1.1 and footnote 2 thereto, and Annex A.
1136Originally circulated as document WT/DS317/ 5, amended by WT/DS353/2, WT/DS317/5/Add.1,
and corrected by WT/DS353/2/Corr.1, WT/DS317/5/Add.1/Corr.1. See Panel Report, para. 1.2 and footnote 3
thereto, and Annex B (Request for the Establishment of a Panel by the European Communities).
1137WT/DSB/M/205, para. 73.
1138WT/DSB/M/205, paras. 69 and 72; WT/DSB/M/206, paras. 11-13 and 19-20; WT/DSB/M/207,
paras. 92 and 93; WT/DSB/M/210, para. 99-101; WT/DSB/M/212, paras. 64-67.
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second procedure because it was diss atisfied with the results.
1139 The United States further expressed
the view that, while the SCM Agreement and the DSU do not require a procedural agreement between
the parties to commence Annex V procedures for the first time, such an agreement is necessary "when
the Annex V request cover{s} measures that ha{ve} already been subject to a completed Annex V
process" and that a responding party cannot "be subject to an endless cycle of burdensome Annex V
processes" simply because a complainant has added "some new measures to a panel request".
1140
Although the European Communities argued that initia tion should occur by ne gative consensus, this
view does not appear to have been shared by the DSB Chairman at that time. Accordingly, at the first
four meetings where the DSB considered the Eur opean Communities' request, the DSB "took note" of
the statements made, but took no decision. 1141 At the DSB meeting of 17 May 2006, the Chairman
proposed, and the DSB agreed, to take note of the st atements made and to su spend consideration of
this item pending consultations on a way forward.1142
539. At all of the DSB meetings where the Eur opean Communities requested initiation of an
Annex V procedure, the request was made in respect of the dispute that carried the DS317 number.
Only subsequently—and retroactively—was the DS353 number attributed to this dispute, and the
words "Second Complaint" added to the title of DS353. 1143 On 4 December 2006, the DS353 number
was added to the previously circulated second re quest for consultations and second request for the
establishment of a panel, which had originally been circulated bearing the DS317 number alone. 1144
There is no explanation in the record as to why th is occurred, and the participants were unable to
provide us with one at the oral hearing.

1139See, for example, WT/DSB/M/206, paras. 14-18; and WT/DSB/M/207, paras. 94-97.
1140See WT/DSB/M/206, paras. 15 and 18.
1141WT/DSB/M/205, paras. 75 and 76; WT/DSB/M/206, para. 26; WT/DSB/M/207, para. 101;
WT/DSB/M/210, para. 104.
1142WT/DSB/M/212, paras. 70 and 71. The minutes of that meeting record that, on 23 May 2006, the
Chairman sent a fax to delegations informing them that, "following consultations between the parties to the
dispute, an agreement had been reached that it was no t necessary to revert to this matter and that the
consideration of this agenda item did not need to be suspended". ( Ibid., footnote 2 to para. 70) The same day,
the European Communities sent a letter to the facilitator in the completed DS316 and DS317 Annex V
procedures and asked him to pose 343 questions to the United States. (Letter from the European Communities to
Mr. Mateo Diego-Fernández, dated 23 May 2006, attaching questions for the United States (Panel
Exhibit EC-1)) By letter of 6 June 2006, Mr. Diego- Fernández declined to serv e as a DSB representative
pursuant to Annex V or to pose these questions to the United States, noting that there had been no DSB
consensus to initiate a new Annex V procedure. (Letter from Mr. Mateo Diego-Fernández to the
European Communities, dated 6 June 2006 (Panel Exhibit EC-2))
1143See WT/DS353/1, WT/DS317/1/Add.2; and WT/DS353/2, WT/DS317/5/Add.1, corrected by
WT/DS353/2/Corr.1, WT/DS317/5/Add.1/Corr.1.
1144See WT/DS353/2, WT/DS317/5/Add.1, corrected by WT/DS353/2/Corr.1,

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540. Taking account of this procedural history, it seems to us that any assessment of the
European Union's allegations that the United Stat es failed to comply with its obligations under the
first sentence of paragraph 1 of Annex V to SCM Agreement, or of the consequences that should,
according to paragraphs 6 to 9 of Annex V to the SCM Agreement, flow from any such failure, would
likely require consideration of a number of thorny is sues. These include: (i) the relationship between
the proceedings in DS317 and the proceedings in this dispute; (ii) the relationship, if any, between the
Annex V procedure in DS317 and the absence of an Anne x V procedure in this dispute; (iii) the facts
concerning the extent of the United States' particip ation in the Annex V procedure in DS317 and the
relevance and role, if any, of information collect ed in that information- gathering process in this
dispute; (iv) the relevance, in assessing the United States' cooperation, of the fact that both the DSB
Chairman and the individual who the European Communities sought to have facilitate the Annex V
procedure considered that positive consensus was requi red to initiate such a procedure; and (v) the
relevance, if any, of the fact that, ultimately, the European Communities' request for initiation of an
Annex V procedure appears to have been removed from the agenda of the DSB through a consensus
joined in by the European Communities itself.
541. In the particular circumstances of this proceeding, it is not evident to us that the relevant facts
are sufficiently clear or uncontested, or that the co mplex legal issues have been sufficiently explored
by the participants to permit us to accede to the European Union's requests. Indeed, the facts and
circumstances of this dispute and of DS317 are complicated, highly case-specific, and decidedly
unclear. Neither participant has provided us with a full accounting of its understanding of the facts,
and, in any event, these facts appear to be contested. Moreover, each participant appears to us to have
adopted positions over the course of these two dispute settlement proceedings that are, at least to some
degree, internally contradictory in the way that they approach the issue of the relationship between the
two disputes. The United States, for example, indi cated at the oral hearing that it accepts that DS317
and DS353 are separate disputes. At the time that the European Communities sought initiation of an
Annex V procedure in this dispute, however, th e United States objected mainly on the basis that
Annex V provides no right to "resume", "re-open", or to "seek a second Annex V process".
1145 Such
arguments suggest that, at least at that time, the United States held the view that there was but a single

1145See WT/DSB/M/207, paras. 94, 95, and 97; WT/DSB/M/206, paras. 18 and 25; and
WT/DSB/M/205, para. 71.
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dispute.
1146 Furthermore, we have difficulty understanding why, if the United States accepts that these
disputes are to be treated as separate, it considers that its participation in the Annex V procedure in
DS317 is relevant to assessing whether it complied wi th its obligations under paragraph 1 of Annex V
in this dispute.
542. We also fail to see how we can answer questions relating to the extent of the United States'
cooperation in the abstract or for the entire dispute. Whether there has been a failure to cooperate or a
refusal to submit essential information, and whet her there is a resulting need to use adverse
inferences, are questions that usually refer to speci fic claims, measures, or pieces of evidence. Yet,
the European Union has not provided us with such details in connection with its requests that we find
that the United States failed to comply with its ob ligations under the first sentence of paragraph 1 of
Annex V to the SCM Agreement, and that the Panel was entitled to re ly on best information otherwise
available, and to draw adverse inferences in accord ance with the provisions of paragraphs 6 and 7 of
Annex V. We also note the United States' argum ent that it cannot be deemed to have been
uncooperative when both the DSB and the facilitator in the DS317 Annex V procedure appear to have
shared its view that the initiation of an Annex V procedure occurs by positive consensus.
543. In this dispute, the Panel made no specific fi ndings of "non-cooperation" on the part of the
United States, and the uncertain nature of the f acts surrounding the alleged non-cooperation on the
part of the United States means that we have no basis for making any such finding on appeal. The
only thing that can be said with some degree of c onfidence is that there a ppears to have been little
cooperation between the parties before the Panel on an y of the issues relating to Annex V. This is
regrettable, particularly in the light of the coope rative attitude that is cal led for both under Annex V
and, more generally, pursuant to Article 3.10 of the DSU.
544. For these reasons, we make no finding as to whether the United States failed to comply with
its obligation under the first sentence of paragraph 1 of Annex V to the SCM Agreement, or whether
the European Communities was en titled to present its serious prej udice case based on the evidence

1146We also note that the United States has, including in its submissions on appeal, invoked its
participation in the Annex V procedures in DS317 as a justification for not agreeing to any Annex V procedure
in this dispute. The United States acknowledges, however, that in the DS317 Annex V procedure, it refused to
answer any questions with respect to measures that it unilaterally deemed to be outside that panel's terms of
reference. At least some of those measures were within the terms of reference of this Panel, but the absence of
an Annex V procedure in this dispute meant that no information relating to them could be gathered in such a
procedure. For its part, the European Union insists that the United States' non-cooperation in this dispute
prevented any Annex V procedure from being initiated, and in doing so fails to acknowledge any degree of
cooperation during the Annex V procedure in DS317. Moreover, the European Communities appears to have
resisted efforts by the Panel and the proposal by the United States to enter the (apparently sizeable) record from
the DS317 Annex V procedure into the Panel record in this dispute.
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available to it, or whether the Panel was entitled to rely on best information available or to draw
adverse inferences.
(c) The European Union's additional requests
545. In addition, and "independently" from the a bove requests to complete the analysis, the
European Union requests us to "constantly bear in mind the circumstances of this case", notably "that
the United States has chosen to withhold informa tion from the European Union and the Panel" and
that the United States' "refusal to co-operate in the Annex V procedure colours the entire dispute".
1147
This means, according to the European Union, that: (i) with respect to the United States' appeal, "the
United States cannot now reasonably criticise the Pa nel for its assessment of the facts or for the
reasonable drawing of factual inferences where the United States itself is responsible for depriving the
Panel of information"; and (ii) with respect to the European Union's appeal, "{i}n case of doubt or
evidentiary conflict or equipoise, the Appe llate Body should rule in favour of the
European Union".1148
546. The United States asserts that there is no legal authority for us to draw adverse inferences
against the United States in the circumstances of this dispute, and that the rulings requested by the
European Union are improper.
547. We begin by noting that we have some difficulty understanding precisely what the
European Union's additional requests seek to have us do, and how they square with our mandate
under Article 17.6 of the DSU. Starting with the first request, we understand the European Union's
contention that the United States should be precluded, on appeal, from challenging the Panel's
assessment of the facts to amount to an argument that the United States should be barred in these
appellate proceedings from raising a claim under Artic le 11 of the DSU with respect to the Panel's
assessment of the facts in this dispute. Whether or not such an approach would be appropriate is a
moot point since, in any event, we reject the tw o claims of error that the United States has raised
under this provision.
1149
548. With respect to the European Union's second additional request, we have some doubts as to
whether it is appropriate given that it is not the ma ndate of the Appellate Body to resolve instances of
"evidentiary conflict or equipoise". In any event, we do not see that this request is sufficiently
supported to allow us to make the requested finding. To the extent that the European Union is asking
us to draw adverse inferences, we would have exp ected it to have provided us with a more precise

1147European Union's appellant's submission, para. 53.
1148European Union's appellant's submission, para. 53.
1149See infra, paras. 723 and 996.
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indication of the areas in which the factual record is incomplete, how the lack of information relates to
the United States' alleged non-cooperation, and the speci fic inferences that it is requesting us to draw.
This is because, as a general matter, the need to and justification for drawing adverse inferences
relates to particular instances of non-coope ration or withholding of evidence and is
context-specific.
1150 We are not convinced that the provisions of Annex V, and, in particular its
paragraph 7, means, as the European Union's broa d request implies, that any non-cooperation in an
Annex V procedure requires the drawing of adver se inferences against the non-cooperative party on
all factual issues. Rather, the drawing of such in ferences should at least to some extent involve
consideration of the connection between the non-cooperation and the relevant issue, as well as of
other evidence available on the record. Although the European Union has not, in its appeal related to
Annex V to the SCM Agreement, provided us with sufficiently specific arguments or information
regarding the precise rulings or findings it seeks from us, we note that it has in other sections of its
arguments raised instances of alleged non-coopera tion relating to the evidentiary basis for specific
Panel findings challenged on appeal, and we address those elsewhere in this Report.1151
E. Conclusion
549. In the reasoning set out above, we have found th at the Panel erred, in the first and last
sentences of paragraph 7.22 of the Panel Report, reproducing paragraph 4 of its Preliminary Ruling, in
denying the various requests made by the Eur opean Communities with respect to an Annex V
procedure, because the Panel's denial of those requests rested upon an inadequate legal foundation and
an incomplete interpretation of the relevant legal provision. 1152 In our consideration of the
European Union's various requests for completion of the analysis and for additional findings, we have
interpreted paragraph 2 of Annex V to the SCM Agreement to mean that the DSB's initiation of an
information-gathering procedure in a serious prej udice dispute occurs automatically provided that a
request for such a procedure has been made and a panel established. 1153 We have declined to find that
all of the conditions for the initiation of an Annex V procedure were fulfilled in this dispute, and have
made no finding as to whether the United States failed to comply with its obligations under the first
sentence of paragraph 1 of Annex V to the SCM Agreement; whether the European Communities was
entitled to present its serious prejudice case based on the evidence available to it; whether the Panel

1150See, albeit outside the context of Annex V of the SCM Agreement, Appellate Body Report,
US – Wheat Gluten, para. 174.
1151See section X.C of this Report.
1152Supra, para. 501.
1153One Member of the Division wishes to qualify this understanding of paragraph 2 of Annex V to the
SCM Agreement. In the opinion of this Member, to initiate an Annex V procedure, an act of the DSB is
required. The DSB's initiation of an Annex V procedure in the manner described above can occur only when
the complaining Member's request for an Annex V procedure forms an integral part of that Member's request for
the establishment of a panel.
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was entitled to complete the record as necessary rely ing on best information ot herwise available; or
whether the Panel was entitled to draw adverse inferences.
VI. NASA Procurement Contracts and USDOD Assistance Instruments
A. Financial Contribution
1. Introduction
550. The issues raised in this part of the app eal concern both the Panel's interpretation and
application of Article 1.1(a)(1) of the SCM Agreement. We note that, in its analysis of whether the
NASA and USDOD measures challenged by the European Communities constitute financial
contributions within the meaning of Article 1.1(a)(1) of the SCM Agreement, the Panel began by
focusing on the interpretative issue of whether meas ures that are properly characterized as "purchases
of services" are excluded from the scope of Article 1.1(a)(1)(i) of the SCM Agreement and, therefore,
do not qualify as financial contributions by means of a "direct transfer of funds".1154
551. After determining that Article 1.1(a)(1)(i) does not include within its scope measures that are
"properly characterized "1155 as purchases of services, the Panel proceeded to consider whether the
NASA and USDOD measures at issue qualify as such. For this purpose, th e Panel developed and
applied a test that it derived from Article 1.1(a)(1). 1156 According to the Panel, whether or not the
NASA and USDOD measures could be properly characterized as purchases of services depends on
the nature of the work that Boeing was required to perform pursuant to them and, more specifically,
whether that research was "principally for {Boe ing's} own benefit and use, or whether it was
principally for the benefit and use of the U.S. Government (or unrelated third parties)".1157
552. Having applied its purchase of services test to five categories of evidence 1158, the Panel
concluded that the NASA procurement contracts and USDOD assistance instruments could not be
properly characterized as such. By contrast, it found that the USDOD procurement contracts did
qualify as purchases of services. For measures th at qualified as purchases of services under its test
—that is, the USDOD procurement contracts
1159—the Panel excluded them from further consideration
based on its interpretation of Article 1.1(a)(1), wher eby such measures are not financial contributions.
By contrast, where the measures did not qualif y as purchases of services under the test—the NASA

1154Panel Report, para. 7.953.
1155Panel Report, para. 7.970. (original emphasis)
1156Panel Report, paras. 7.977, 7.978, 7.1136, and 7.1137.
1157Panel Report, paras. 7.978 and 7.1137.
1158See infra, para. 567.
1159Panel Report, para. 7.1171.
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procurement contracts and USDOD assistance instru ments—the Panel treated the payments made by
NASA and the USDOD to Boeing pursuant to those c ontracts and instruments as direct transfers of
funds within the meaning of Article 1.1(a)(1)(i).
1160 Furthermore, it determined that the access to
NASA facilities, equipment, and employees provided to Boeing pursuant to the NASA contracts, and
the access to USDOD facilities pursuant to the USDO D assistance instruments, constitute the
provision of goods and services under Article 1.1(a)(1)(iii). 1161 Having found these measures to be
financial contributions, the Panel then proceeded with the remaining analysis under the relevant
provisions of the SCM Agreement.
553. The participants appeal the Panel's interpretation of Article 1.1(a)(1) and its application to the
facts of this dispute. The European Union seeks re versal or modification of the Panel's interpretation
that measures properly characterized as purchases of services are excluded from the scope of
Article 1.1(a)(1) of the SCM Agreement.1162 The United States does not appeal the Panel's
interpretation; rather, it challenges various findings of the Panel that derive from the application of its
purchases of services test to the NASA and USDOD measures at issue. In particular, the
United States requests reversal of the Panel's finding that the NASA procurement contracts and
USDOD assistance instruments do not constitute purch ases of services and, consequently, its finding
that these measures involve payments that are dir ect transfers of funds within the meaning of
Article 1.1(a)(1)(i), as well as the Panel's finding that the other support
1163 provided to Boeing
constitutes the provision of goods and services within the meaning of Article 1.1(a)(1)(iii).
554. We begin by providing an overview of the rele vant findings of the Panel, after which we
assess the merits of the arguments of the participants on appeal.
2. The Panel's Findings
555. In its first written submission to the Panel, th e European Communities asserted that the direct
funding accruing to Boeing and the other s upport provided under the NASA and USDOD
R&D programmes constitute a financial contributi on through a direct transfer of funds under

1160Panel Report, paras. 7.1027 and 7.1171.
1161Panel Report, paras. 7.1027 and 7.1171.
1162European Union's appellant's submission, para. 127. The European Union does not seek reversal of
the Panel's application of its interpretation to the NASA and USDOD measures at issue. Rather, the
European Union argues that, if the Appellate Body were to reverse the Panel's legal interpretation of
Article 1.1(a)(1), as it requests on appeal, that reversal would render moot the United States' appeal related to
the Panel's findings that the payments and access to NA SA facilities, equipment, and employees and access to
USDOD facilities, provided through the NASA and USDOD aeronautics R&D programmes, are financial
contributions. (European Union's appellee's submission, paras. 28 and 112)
1163We use the term "other support" as shorthan d for access to NASA facilities, equipment, and
employees and access to USDOD facilities.
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Article 1.1(a)(1)(i) and the provision of goods and services under Article 1.1(a)(1)(iii) of the
SCM Agreement.
1164 In response, the United States argued that the funding and other support were
provided pursuant to transactions that qualify as purchases of services. 1165 According to the
United States, purchases of services do not qualify as fi nancial contributions within the meaning
of Article 1.1(a)(1). 1166 The United States supported its argument by reference to the context
of Article 1.1(a)(1)(i) and the negotiating history of the SCM Agreement.1167 The
European Communities countered th at an analysis of Article 1.1(a)(1) provides no basis for an
exclusion of a category of transactions referred to as "purchases of services" that otherwise fit into any
of the other categories of financial contributions li sted in that provision, an d that the interpretation
advanced by the United States creates an enormous "loophole" 1168 in the SCM Agreement that would
allow Members to frustrate its object and purpose.
(a) The Panel's interpretation of Article 1.1(a)(1)(i) of the
SCM Agreement
556. In addressing the parties' arguments, the Panel not ed that the legal issue raised was "whether
transactions properly characterized as purch ases of services are excluded from the scope of
Article 1.1(a)(1)(i) of the SCM Agreement". 1169 For purposes of answering this question, the Panel
explained that it would engage the rules of inte rpretation provided in Articles 31 and 32 of the
Vienna Convention.1170
557. Beginning with the ordinary meaning of the phrase "a government practice involves a direct
transfer of funds" in Article 1.1(a)(1)(i) of the SCM Agreement, the Panel remarked that this phrase,
"read in isolation", might be "broad enough" to cover purchases of services. 1171 The Panel reached
this conclusion for four reasons. First, nothing in th e dictionary definitions of the terms in this phrase
suggests that transactions properly characterized as purchases of services fall outside their scope,
because "the definition of 'transfer' is a 'conveyan ce from one person to another', and the definition of

1164Panel Report, paras. 7.971, 7.972, 7.1125, and 7.1126.
 1165Panel Report, paras. 7.975 and 7.1130-7.1133.
1166Panel Report, para. 7.950.
1167Panel Report, para. 7.950 (referring to United Stat es' first written submission to the Panel, paras. 48
and 218; and United States' responses and/or comments on the European Communities' responses to Panel
Questions 15, 17, and 113-120).
1168Panel Report, para. 7.949 (refer ring to European Communities' second written submission to the
Panel, paras. 349-364; and European Communities' responses to Panel Questions 15, 17, and 113-120).
1169Panel Report, para. 7.953.
1170Panel Report, para. 7.953. The Panel noted that no prior panel or Appellate Body report has dealt
with this issue. Nor is there a "subsequent agreement" or "subsequent practice" within the meaning of
Article 31(3)(a) or (b) of the Vienna Convention that could provide guidance on the interpretative questions
raised. (Ibid.)
1171Panel Report, para. 7.954.
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'funds' is 'a stock or sum of money, esp. one set apart for a particular purpose' or 'financial
resources'".
1172 Second, there is "no qua lifying or limiting language" 1173 in the text of
Article 1.1(a)(1)(i). Third, one example of a direct transfer of funds given in Article 1.1(a)(1)(i) is an
equity infusion, which refers to "a situation in which the government 'purchases' something (i.e.
shares in a company)". 1174 Fourth, previous panels and th e Appellate Body have not given a
restrictive interpretation to these terms.1175
558. The Panel thereafter turned to the immediate context provided by Articles 1.1(a)(1)(iii)
and 14(d) of the SCM Agreement. Both provisions refer to a government's provision of goods or
services (other than general infrastructure), or purchase of goods. In the light of the "glaring
difference"1176 between the first and second sub-clauses of Article 1.1(a)(1)(iii), the Panel considered
that the drafters intended to exclude purchases of services from the definition of Article 1.1(a)(1) of
the SCM Agreement. Since Article 1.1(a)(1) sets out an "exhaustive, closed list" of the types of
transactions that constitute fina ncial contributions under the SCM Agreement, the omission of the
words "or services" in connection with a government 's purchase reinforced the implication of an
intention by Members to exclude purchases of servic es from the definition of "financial contribution"
in Article 1.1(a)(1).1177 The Panel was concerned that the Eu ropean Communities' attempt to include
purchases of services, whether under Article 1.1(a)(1)(i) or another subparagraph of
Article 1.1(a)(1), would "necessarily mean that tr ansactions involving purchases of goods must also
be covered by those same othe r sub-paragraphs and elements". 1178 For the Panel, this would render
the term "purchases goods" in Article 1.1(a)(1)(iii) "redundant and inutile", because the scope and

1172Panel Report, para. 7.954 and footnotes 2421 and 2422 thereto (quoting Shorter Oxford English
Dictionary, L. Brown (ed.) (Clarendon Press, 2002), Vol. 2, p. 3367 and Vol. 1, p. 1042, respectively). The
Panel also referred to Webster's Online Dictionary , which defines "transfer" to mean the conveyance of right,
title, or property, either real or personal, from one person to another, whether by sale, by gift, or otherwise; and
defines "funds" to mean, among other things, "{a}ssets in the form of money" and "{a} reserve of money set
aside for some purpose". (Ibid.)
1173Panel Report, para. 7.954.
1174Panel Report, para. 7.954. Here, the Panel quoted a finding of the panel in EC – Countervailing
Measures on DRAM Chips that:
Article 1.1(a)(1)(i) of the SCM Agreement provides that there is a financial
contribution where a government practice involves a direct transfer of funds,
such as in the case of a grant, loan and equity infusion for example. The
purchase of corporate bonds is such a direct transfer of funds, and therefore
constitutes a financial contribution.
(Panel Report, footnote 2423 to para. 7.954 (quoting Panel Report, EC – Countervailing Measures on DRAM
Chips, para. 7.92 (emphasis added by the Panel))
1175Panel Report, para. 7.954 (referring to Appellate Body Report, Japan – DRAMs (Korea), para. 250).
1176Panel Report, para. 7.955.
1177Panel Report, para. 7.955. The Panel also explained that the omission of purchases of "services"
from Article 14(d) meant that "there is no standard for determining whether purchases of 'services' provide a
'benefit' under Article 1.1(b)". (See ibid., footnote 2428 thereto)
1178Panel Report, para. 7.956.
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coverage of Article 1.1(a)(1) would be "precisely the same" as if "purchases {of} goods" had not been
expressly provided for under Article 1.1(a)(1)(iii).
1179
559. Next, the Panel considered the context provide d by (now lapsed) Article 8.2(a) of the
SCM Agreement, which stated that "the following subs idies shall be non-actionable" and then
proceeded to list, as the first of such non-actiona ble subsidies, "assistance for research activities
conducted by firms or by higher education or researc h establishments on a contract basis with firms if
certain conditions are met ". For the Panel, the terms of Article 8.2(a) did not give rise to a
"necessary implication" that government purchases of R&D services were subsidies within the
meaning of the SCM Agreement. Moreover, a government could provide "assistance" for research
activities conducted by firms through means other than the purchase of R&D services.1180
560. In its consideration of the object and purpose of the SCM Agreement, the Panel addressed a
circumvention argument by the European Commun ities, Brazil, and Australia according to which
"excluding purchases of services from the scope of Ar ticle 1.1(a)(1) 'would run counter to the overall
object and purpose of the SCM Agreement' by creating 'an enormous loophole in the coverage of the
SCM Agreement and provide WTO Members with a roadmap for distorting trade in goods through
"service contracts" with their goods producers'." 1181 The Panel remarked that, if a finding that
purchases of services are excluded from the scope of the SCM Agreement necessarily led to the
manifestly absurd result that a Member could tu rn a grant into an excluded purchase of services
simply by "labelling" 1182 the transaction a "contract" or "purchase of services", then such an
interpretation would indeed run counter to the object and purpose of the SCM Agreement. However,
the Panel was of the view that WTO panels and nati onal investigating authorities are in a position to
"detect"1183 transactions that are not properly characterized as purchases of services.
561. In order "{t}o confirm the meaning that ari ses from the application of Article 31 of the
Vienna Convention"1184, the Panel turned to supplementary means of interpretation under Article 32
of the Vienna Convention . For the Panel, the preparatory work of Article 1.1(a)(1)(iii) and
Article 14(d) of the SCM Agreement reveals that a reference to gove rnmental "purchases of services"
originally appeared in, and was subsequently removed from, the text of both of these provisions in the

1179Panel Report, para. 7.956.
1180Panel Report, para. 7.958.
1181Panel Report, para. 7.960 (referring to European Communities' response to Panel Question 15(a),
para. 51; Brazil's third party submission to the Panel, para. 10; and Australia's oral statement at the Panel
meeting with the third parties, para. 6).
1182Panel Report, para. 7.960 (quoting European Communities' second written submission to the Panel,
para. 358).
1183Panel Report, para. 7.960.
1184Panel Report, para. 7.961.
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final draft of the Agreement. This confirms that Members purposely excluded purchases of services
from the scope of Article 1.1(a)(1).
1185 Moreover, the arguments of the European Communities did
not provide a "plausible explanation" 1186 as to why purchases of services had been removed from
Article 1.1(a)(1)(iii) and Article 14(d) of the SCM Agreement.
562. Finally, the "circumstances of the conclusion"1187 of the SCM Agreement suggest that the
drafters of Article 1 of the SCM Agreement would have understood the consequences of removing the
reference to "purchases of services" in Article 1. Such circumstances included both pre-existing
GATT disciplines regarding government procurement, relevant dispute settlement proceedings that
were decided under those disciplines 1188, as well as negotiations that were underway to establish new
disciplines regarding government procurement, in cluding government procurement in respect of
services.1189 The Panel also referred to parallel ne gotiations that were taking place under the General
Agreement on Trade in Services .1190 For the Panel, rather than illustrating that the drafters excluded
purchases of services because such a reference would be "superfluous" or that such transactions would
be understood to be implicitly covered, the histor ical background reveals a "deliberate choice" by
Members to exclude purchases of services from Article 1.1(a)(1).1191
563. On the basis of the foregoing, the Panel conc luded that transactions properly characterized as
purchases of services are excluded from the scope of Article 1.1(a)(1)(i) of the SCM Agreement.1192
(b) The Panel's assessment of the NASA measures
564. Having concluded that purchases of services are excluded from the scope of
Article 1.1(a)(1)(i) of the SCM Agreement, the Panel turned to consid er whether the payments and
access provided to Boeing under the NASA contracts c ould be properly characterized as purchases of
services.
565. The Panel commenced its analysis by referri ng to the Appellate Body's statement in
US – Softwood Lumber IV that " an evaluation of the existence of a financial contribution involves

1185Panel Report, para. 7.962.
1186Panel Report, para. 7.963.
1187Panel Report, footnote 2444 to para. 7.964 (referring to Appellate Body Report, EC – Computer
Equipment, para. 86). In accordance with that Appellate Body report, the Panel understood this to include an
examination into the historical background against which the treaty was negotiated.
1188The Panel referred to two such GATT cases: US – Sonar Mapping and Norway – Trondheim Toll
Ring. (Panel Report, para. 7.966)
1189Panel Report, paras. 7.964-7.968.
1190Panel Report, para. 7.968 (referring to Articles XIII:2 and XV of the General Agreement on Trade
in Services).
1191Panel Report, para. 7.969.
 1192Panel Report, para. 7.970.
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consideration of the nature of the transaction through which something of economic value is
transferred by a government".
1193 The Panel found that a determination of whether a transaction is a
purchase of services depends on:
… the nature of the work that Boeing was required to perform under
the contracts, and more specifically, whether the R&D that Boeing
was required to conduct was principa lly for its own benefit and use,
or whether it was principally for the benefit and use of the U.S.
Government (or unrelated third parties).
1194 (emphasis omitted)
566. The Panel explained the basis for its test as fo llows. First, the R&D contracts with Boeing
should be characterized based on their terms (and the core term of these contracts is the work that
Boeing was required to perform). Second, inherent in the ordinary meaning of the concept of a
"service" is that the work performed be for the benefit and use of the entity funding the R&D (or
unrelated third parties). 1195 Third, the Panel's test was "broadly consistent" 1196 with the arguments of
the parties and third parties in this case. Fina lly, the test was consistent with prior GATT panel
reports that examined the question of whethe r a transaction was properly characterized as
"government procurement".1197

1193Panel Report, para. 7.977 (quoting Appellate Body Report, US – Softwood Lumber IV , para. 52).
(emphasis added by the Panel)
1194Panel Report, para. 7.978.
1195The Panel defined "service" to mean: "An act of helping or benefiting another … The action of
serving, helping, or benefiting another; behaviour conducive to the welfare or advantage of another". (Panel
Report, footnote 2469 to para. 7.978 (quoting Shorter Oxford English Dictionary , 5th edn, W.R. Trumble,
A. Stevenson (eds) (Oxford University Press, 2002), Vol. 2, p. 2768) (emphasis added by the Panel))
1196Panel Report, para. 7.978. The Panel noted definitions of "service" provided by the
European Communities and Canada. In particular, the European Communities had argued that whether or not a
transaction is properly characterized as a purchase of services depends on, inter alia , whether "the ultimate
purpose of the transaction would need to be the acquisitio n of a service for the direct benefit and own use of the
government". Canada had noted that, in general terms, "a service is the performance of duties or work for
someone else", such that the relevant question is whether the government has "procured the performance of
duties or work for itself or anyone else (other th an the service seller)". ( Ibid., footnote 2470 to para. 7.978
(referring to European Communities' response to Panel Question 15(b), para. 55; and Canada's response to
Panel Question 5(c) to the third parties, paras. 4-7))
1197Panel Report, para. 7.978 (referring to GATT Panel Report, US – Sonar Mapping , paras. 4.7
and 4.10; and GATT Panel Report, Norway – Trondheim Toll Ring , paras. 4.8-4.13). The Panel noted that, in
US – Sonar Mapping , the panel had stated that, " while not intending to offer a definition of government
procurement within the meaning of Article I:1(a) of the Tokyo Round Agreement on Government
Procurement, the Panel felt that in considering the facts of any particular case the following characteristics,
none of which alone could be decisive, provide guidance as to whether a transaction should be regarded as
government procurement within the meaning of Article I:1(a): payment by government, governmental use of or
benefit from the product , government possession and government control over the obtaining of the product"
(para. 4.7). The panel concluded that, in that case, the government agency would " enjoy the benefits of the
system's purchase—Antarctic research and the pr eparation of seabed maps—which were clearly for government
purposes, and the Government can thus be regarded as the ultimate beneficiary of the system" (para. 4.10).
(Panel Report, footnote 2471 to para. 7.978 (emphasis added by the Panel))
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567. The Panel thereafter turned to the kinds of ev idence it considered would "shed light" on the
nature of the R&D activities required of Boeing under th e contracts, and in turn the issue of whether a
transaction was a purchase of services.
1198 In particular, it explained that it would consider the
following five categories of evidence: (i) the legi slation authorizing the R&D programmes at issue;
(ii) the types of instruments entered into betw een NASA and Boeing; (iii) whether NASA has any
demonstrable use for the R&D performed under the pr ogrammes; (iv) the allocation of intellectual
property rights under the transactions at issue; an d (v) whether the transactions have the typical
elements of a purchase of services.1199
568. The Panel turned first to NASA's statutory b asis for performing aeronautical research. The
Panel noted all of the objectives set out in NASA's statute, but highlighted the following ones:
(i) "improvement of the usefulness, performance, speed, safety, and efficiency of aeronautical and
space vehicles"; (ii) "{t}he preservation of the ro le of the United States as a leader in aeronautical
and space science and technology"; and (iii) "{t} he preservation of the United States preeminent
position in aeronautics and space through research an d technology development related to associated
manufacturing processes".
1200 Second, the Panel considered the type of instruments entered into
between NASA and Boeing. The Panel observed that attaching the label "procurement contracts"
rather than "assistance instruments" to the instruments did not "shed very much light on the nature of
the transactions".1201
569. Third, the Panel considered whether "NAS A has any demonstrable use for the R&D
performed under the eight aeronautics programmes at issue". 1202 The Panel considered a variety of
evidence including statements by NASA and Boeing officials and staff 1203, as well as NASA
documents1204 and budgetary and other doc umentation detailing the objectives for each of the eight
NASA R&D programmes at issue. 1205 The Panel determined that the principle purpose of NASA's

1198Panel Report, para. 7.979. The Panel explained that it would review "all of the evidence" regarding
the terms and surrounding context of NASA's aeronau tics R&D contracts with Boeing. This would not
preclude, for example, the "formal" features of the transa ctions or evidence of the "purpose and motives" of the
programmes. The Panel did not consider these elements "extraneous" features divorced from the "terms" of the
transactions; rather, they could be central to understanding the core term of the transaction. ( Ibid. (emphasis
omitted))
1199Panel Report, para. 7.980.
1200Panel Report, para. 7.982 (quoting National Aero nautics and Space Act of 1958, Public Law
No. 85-568, as amended (Panel Exhibit EC-286), pp. 2-3). (emphasis omitted) The Panel also noted that NASA
must, in order to carry out the objectives of the Sp ace Act, "provide for th e widest practicable and appropriate
dissemination of information concerning its activities and the results thereof". (Panel Report, para. 7.983
(quoting Space Act, section 203(a)) (emphasis added by the Panel))
1201Panel Report, para. 7.984.
1202Panel Report, para. 7.985.
1203Panel Report, paras. 7.986-7.992.
1204Panel Report, paras. 7.993 and 7.998.
1205Panel Report, paras. 7.999-7.1023.
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aeronautics R&D in general, and the eight programmes in particular, was "to transfer technology to
U.S. industry with a view to improving U.S. competitiveness vis-à-vis foreign competitors".
1206
Fourth, the Panel considered the allocation of intellectual property rights in the NASA R&D
contracts. It found that Boeing was not obligat ed to pay royalties to NASA for any commercial
rewards resulting from the exploitation of patents rights over inventions conceived in the course of the
research.1207 Moreover, the Panel noted that some of the NASA contracts included limitations 1208 on
the government's rights over data developed as part of the research efforts.
570. Finally, the Panel considered whether the NASA R&D contracts "involve the typical elements
of a purchase of services". 1209 The Panel noted that "a number" of NASA R&D contracts did not
provide any fee or profit to Boeing for performi ng the work "because of NASA's determination that
Boeing stood to benefit commercially from the R&D that it performed under the contract".1210
571. The Panel ultimately held that:
{t}he evidence relating to NASA ae ronautics R&D … leads to the
conclusion that the work that Boeing performed under its aeronautics
R&D contracts with NASA was prin cipally for its own benefit or
use, rather than for the benefit or use of the U.S. Government (or
unrelated third parties). While NASA's aeronautics R&D contracts
take the form of a governmental procurement of services, the totality
of the evidence before the Panel leads to the conclusion that the
substance of these transactions cannot properly be characterized as a
"purchase of services" for the purpose of Article 1.1(a)(1) of the
SCM Agreement.
1211 (footnotes omitted)
572. Accordingly, the Panel concluded that:
… the payments made to Boeing under these contracts are covered
by Article 1.1(a)(1)(i) of the SCM Agreement as a direct transfer of
funds. The Panel further {found} th at the access to NASA facilities,
equipment and employees provided to Boeing through the R&D
contracts and agreements at issue constitutes a provision of goods or
services within the meaning of Article 1.1(a)(1)(iii) of the
SCM Agreement.
1212 (footnote omitted)

1206Panel Report, para. 7.985.
1207Panel Report, para. 7.1024.
1208Panel Report, para. 7.1024. The limitations are known as "Limited Exclusive Rights Data"
("LERD") clauses.
1209Panel Report, para. 7.1026.
1210Panel Report, para. 7.1026.
1211Panel Report, para. 7.1027.
1212Panel Report, para. 7.1027. The Panel did not accept that the payments to Boeing are outright
"grants". (Ibid., footnote 2552 thereto)
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(c) The Panel's assessment of the USDOD measures
573. In evaluating the payments and access to facilities provided to Boeing under the USDOD
contracts and assistance instruments, the Panel once again first considered the evidence based on the
five categories it had identified w ith respect to the NASA measures.
1213 The Panel began by
considering the legislation authorizing the programmes and transactions at issue. The Panel noted that
the USDOD is given authority to fund certain kinds of R&D through "contracts", "cooperative
agreements", "grants", and "other transactions". The Panel also highlighted that, in accordance with
specific legislation, any R&D funded must be of "p otential interest" to the USDOD, and that special
and additional rules apply to funding provided th rough "cooperative agreements", as distinct from
"contracts".1214
574. Second, with respect to the types of inst ruments entered into between Boeing and the
USDOD, the Panel referred to the USDOD Grant and Agreement Regulations ( United States Code of
Federal Regulations, Title 32, Sub-chapter C (Parts 21 to 37)). The Panel noted that these regulations
made a distinction between, on the one hand, "pro curement contracts" and, on the other hand,
"assistance" and "other nonprocurement instrument s" (which comprise "grants", "cooperative
agreements", "technology investment agreements", and "other transactions"). Whereas "procurement
contracts" are appropriate where the "principal pu rpose" of the instrument is the acquisition of
property or services for the direct benefit or use of the federal government, under the "assistance
instruments" the principal purpose is "assistance", defined as the "transfer of a thing of value to a
recipient to carry out a public purpose of support or stimulation".1215

1213See supra, para. 567.
1214Panel Report, paras. 7.1140 and 7.1141 (referring to United States Code, Title 10 (Armed Forces),
Sub-Part A (General Military Law), Part IV (Service, Supply and Proc urement), chapter 139 (Research and
Development), section 2358(a)-(d) (Panel Exhibit US-1205)).
1215United States Code of Federal Regulations , Title 35, section 21.615. See Panel Report,
paras. 7.1141-7.1146. The Panel referred to some of th e cooperative agreements that had been submitted to it
by the European Communities, which provided: "the principal purpose of this agreement is for the government
to support and stimulate the recipient to provide reasonable efforts in advanced research and technology
development and not for the acquisition of property or serv ices for the direct benefit or use of the government".
(Ibid., para. 7.1145 (referring to Cooperative Ag reement between the U.S. Air Force et al. and McDonnell
Douglas Corporation, No. F33615-95-2-5019, 1 February 1995 (Panel Exhibit EC-512); and Cooperative
Agreement between the U.S. Air Force et al. and Mc Donnell Douglas Corporation, No. F33615-96-2-5051,
16 November 1995 (Panel Exhibit EC-513)) The Panel also noted that all of th e "assistance instruments"
submitted by the European Communities in this dispute used the terminology of "Grants Officer" and "Grants
Administration Office", and refer to the other party as the "recipient", and not as a "contractor". ( Ibid.,
para. 7.1146)
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575. Third, the Panel examined whether the US DOD had any "demonstrable use" for R&D
performed under the 23 USDOD RDT&E programmes at issue.
1216 The Panel noted that
"{g}enerally, the purpose of these programmes was to conduct R&D aimed at designing more
advanced weapons or other defense systems or to reduce the cost of such systems". 1217 Nonetheless,
the Panel observed that two of the USDOD progra mmes at issue (Dual Use Science and Technology
("DUS&T") and Manufacturing Technology ("ManTech")) "had the explicit objective of developing
'dual use' R&D", and that those two programmes were funded through assistance instruments.1218
576. Fourth, the Panel considered how intellect ual property rights are allocated under USDOD
contracts and assistance instruments. The Panel no ted that, "{w}hile the allocation of patents is
uniform across all U.S. government R&D contracts and agreements, the allocation of 'data rights'
differs (depending on the extent to which there is cost-sharing.)" 1219 The Panel explained that,
whereas any data delivered under an R&D procuremen t contract funded solely by the government is
"unlimited rights data", in the case of assistance instruments, the government acquires only "limited
rights" data, meaning that it can release or disclose the data outside the government only for
government purposes.
1220
577. Finally, the Panel examined whether the tran sactions "involve the typical elements of a
purchase of services". 1221 In this regard, the Panel pointed out that the R&D procurement contracts
differ from the R&D assistance instruments with regard to the payment of a fee or profit. While the
USDOD R&D assistance instruments do not provide for any fee or profit, all of the procurement
contracts submitted to the Panel appear to provide for the payment of a fee.1222
578. On the basis of the foregoing, the Panel concluded that the USDOD assistance instruments are
not properly characterized as purchases of servic es, but that the USDOD procurement contracts
are.1223 The Panel noted that the distinction between the procurement contracts and assistance

1216Panel Report, paras. 7.1147 and 7.1148. The Pane l referred in particular to the purpose of the
programmes as reflected in the "Mi ssion Description" statement contained in the RDT&E programme budgets.
(Ibid., para. 7.1147)
1217Panel Report, para. 7.1147.
1218Panel Report, para. 7.1148.
1219Panel Report, para. 7.1149.
1220Panel Report, paras. 7.1149 and 7.1150. (emphasis omitted) The Panel added that the government
"may, however, 'use, modify, release, reproduce, perform, display, or disclose' such jointly-funded data 'within
the government without restriction'". ( Ibid., footnote 2723 to para. 7.1150 (referring to United States Code of
Federal Regulations, Title 48, section 227.7103-4(a)(1) (Panel Exhibit EC-590)))
1221Panel Report, para. 7.1151.
1222Panel Report, para. 7.1151.
1223Panel Report, para. 7.1153.
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instruments "is not one of the Panel's own making"
1224 but, rather, had been drawn to the Panel's
attention by the United States.1225
579. In closing, the Panel addressed some of the sp ecific arguments advanced by the parties with
respect to the characterization of the USDOD measures.1226 The Panel rejected various arguments put
forward by the United States in support of its proposition that the assistance instruments are properly
characterized as purchases of services.
1227 The Panel stated that it was not persuaded by the
United States' arguments that the technologi es developed under the USDOD R&D programmes are
neither "technologically applicable" to commercial ai rcraft (because of the different missions and
cost-sensitivities of military and commercial aircraft), nor "legally applicable" to commercial aircraft
(because of Boeing's decision to ensure that the 787 is International Traffic in Arms Regulations
("ITAR")-free).1228 The Panel also rejected the United States' assertion that the ITAR make it
"effectively impossible" for Boeing to utili ze any of the R&D performed under USDOD R&D
procurement contracts and assistance instruments towards LCA.1229
580. The Panel then turned to arguments by th e European Communities that the USDOD R&D
procurement contracts are not purchases of services. The Panel rejected a number of the
European Communities' arguments, namely: th at USDOD R&D contracts are not purchases of
services because they "relate to {US}DOD's purchase of goods" (that is, the military aircraft and other
defence systems that the USDOD ultimately procures 1230); that there is a "degree of artificiality" in
how the USDOD finances R&D because, instead of paying one purchase price for its goods, the
USDOD pays for R&D through its RDT&E budget a nd then pays for acquisition costs through its
procurement budget1231; that USDOD R&D contracts are not properly characterized as purchases of

1224Panel Report, para. 7.1153.
1225Panel Report, para. 7.1153 (referring to United States' first written submission to the Panel,
footnote 75 to para. 90). The Panel noted that, while the European Communities had argued that consideration
of the types of instrument is "too formalistic" to guide the analysis, the United States had asserted that, under
US law, the type of instrument will determ ine which contract clauses are available. ( Ibid. (referring to
United States' comments on the European Communities' response to Panel Question 19, para. 75))
1226Panel Report, paras. 7.1154-7.1170.
1227Panel Report, para. 7.1157 (referring to United States' first written submission to the Panel,
para. 92). In particular, the United States highlighted that assistance instruments: (i) typically committed
Boeing to a coordinated research and development programme in accordance with a detailed statement of work;
(ii) set a schedule for performance of research, and tie d payments to completion of the requisite tasks; and
(iii) specified that costs would be governed by the same rules applicable to contracts, and that Boeing would
provide a final report, as well as quarterly reports and reports upon the achievement of certain milestones. (Ibid.,
para. 7.1155)
1228Panel Report, para. 7.1158.
1229Panel Report, para. 7.1160.
1230Panel Report, para. 7.1162 (quoting and referr ing to European Communities' second written
1231Panel Report, para. 7.1163 (referring to European Communities' second written submission to the
Panel, paras. 475 and 476).
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services because the USDOD conveys monetary resources to Boeing for the purpose of conducting
dual-use R&D
1232; that the USDOD R&D contracts at issue do not contain the "typical elements of a
purchase"1233; that the contracts are not purchases of services because Boeing does not offer such
R&D services to anyone else but NASA and the USDOD 1234; that the USDOD contracts are not
purchases of services because they do not exclusively affect trade in services1235; and, finally, that the
USDOD procurement contracts are not purchases of services because they help Boeing develop
technology that it utilizes towards its LCA.1236
581. On the basis of the above, the Panel concluded with respect to the USDOD R&D procurement
contracts as follows:
The evidence relating to {US}DOD aeronautics R&D … leads to the
conclusion that the work that Boeing performed under its aeronautics
R&D contracts with {US}DOD was principally for the benefit and
use of {US}DOD, and is therefore properly characterized as a
"purchase of services". Therefore, the Panel finds that the payments
and access to facilities provide d to Boeing under {US}DOD
contracts are not financial contributions within the meaning of
Article 1.1(a)(1).
1237
582. However, with respect to the USDOD R&D assistance instruments, the Panel concluded that:
… the evidence demonstrates that th e work Boeing performed under
its aeronautics R&D "assistance in struments" with {US}DOD was
principally for the benefit and use of Boeing itself. Accordingly, the
Panel concludes that {US}DOD's R&D agreements (i.e. "assistance
instruments") with Boeing are not properly characterized as
"purchases of services". Therefore, the Panel finds that the payments
made to Boeing under these agreements are covered by
Article 1.1(a)(1)(i) of the SCM Agreement as a direct transfer of
funds. The Panel further finds that the access to {US}DOD facilities
provided to Boeing under these agre ements constitutes a provision of
goods or services within the meaning of Article 1.1(a)(1)(iii) of the
SCM Agreement.
1238 (footnote omitted)

1232Panel Report, para. 7.1165 (referring to European Communities' second written submission to the
Panel, para. 453).
1233Panel Report, para. 7.1166 (referring to European Communities' response to Panel Question 15(c);
and European Communities' comments on the United States' response to Panel Question 20(a), para. 75).
1234Panel Report, para. 7.1167.
1235Panel Report, para. 7.1168 (referring to European Communities' response to Panel Question 15(c),
para. 66).
1236Panel Report, para. 7.1170.
1237Panel Report, para. 7.1171.
1238Panel Report, para. 7.1171.
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3. The Panel's General Approach
583. The European Union and the United States frame their respective appeals on the basis of the
inquiry entered into by the Panel, namely, whet her purchases of services are excluded from the scope
of Article 1.1(a)(1)(i) of the SCM Agreement and, if so, whether the challenged measures can be
properly characterized as purchases of services. On appeal, therefore, both participants take as a
given the terms upon which the Panel engaged in the analysis of the matter before it.
584. We note that the characterization of the measures challenged by the European Communities
was heavily contested from the outset of this dispute. In its first written submission to the Panel, the
European Communities characterized the payments made to Boeing under the challenged NASA and
USDOD measures as direct transfers of funds falling within the scope of Article 1.1(a)(1)(i) of the
SCM Agreement.
1239 The European Communities also claimed that the other support provided under
the measures constitutes the provision of goods and services under Article 1.1(a)(1)(iii). 1240 T h e
United States responded that the measures pursuant to which these payments and other support were
provided are properly characterized as purchases of services, a category of transactions that the
United States claimed to be excluded from the scope of Article 1.1(a)(1)(i).
1241
585. The Panel was therefore confronted with contrasting characterizations of the NASA and
USDOD measures before it. However, instead of first resolving the dispute over the proper
characterization of the measures, the Panel emba rked on an interpretative exercise based on the
assumption that the measures are purchases of services. Only after it had completed its interpretative
exercise on the basis of that assumption did the Pane l return to the question of what was the proper
characterization of the measures at issue. This seems an odd approach. It would seem more logical to
determine first the issue of the proper characterization of the measures at issue and, once the measures

1239See, for instance, European Communities' first wr itten submission to the Panel, paras. 524, 650,
and 762; and European Communities' second written submission to the Panel, paras. 332-334 and 362.
1240See European Communities' first written submission to the Panel, paras. 524-650 and 762; and
European Communities' second written submission to the Panel, paras. 335 and 398.
1241See, for instance, United States' first written submission to the Panel, paras. 41-48.
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have been properly determined, to examine the question of whether such types of measures fall within
the scope of Article 1.1(a)(1) of the SCM Agreement.
1242
586. The Appellate Body has said that a "panel must thoroughly scrutinize the measure before it,
both in its design and in its operation, and identify its principal characteristics" 1243, and that, "{i}n
making its objective assessment of the applicability of specific provisions of the covered agreements
to a measure properly before it, a panel must identify all relevant characteristics of the measure, and
recognize which features are the most central to that measure itself, and which are to be accorded the
most significance for purposes of characterizing th e relevant {measure} and, thereby, properly
determining the discipline(s) to which it is subject under the covered agreements". 1244 The Appellate
Body has therefore clarified that a proper determ ination of which provision of the WTO agreements
applies to a given measure must be grounded in a proper understanding of the measure's relevant
characteristics. In this regard, we note that the classification of a transaction under municipal law is
not "determinative"1245 of whether that measure can be characterized as a financial contribution under
Article 1.1(a)(1) of the SCM Agreement. Moreover, the Appellate Body has "reviewed the meaning
of a Member's municipal law, on its face, to determine whether the legal characterization by the panel
was in error, in particular when the claim before the panel concerned whether a specific instrument of
municipal law was, as such, inconsistent with a Member's obligations".1246

 1242In their arguments to the Panel, the parties seemed to accept that, in its assessment of the type of
financial contribution, the Panel was required to determine the nature of the measures before it. The
European Communities stated that:
{w}ith regard to financial contribution, the European Communities and the
United States both agree that "the substance of the transaction must guide
the analysis of whether it provides a financial contribution and, if so, what
kind". The European Communities has explained that a substantive
examination of the NASA and {US}DOD contracts at issue shows that they
result in direct transfers of funds and provisions of goods and services, since
they convey economic resources to Boeing.
(European Communities' oral statement at the second Panel meeting, para. 46 (quoting United States' comments
on the European Communities' response to Panel Question 20, para. 76) (footnotes omitted))
1243Appellate Body Reports, China – Auto Parts, para. 171.
1244Appellate Body Reports, China – Auto Parts, para. 171. (original emphasis)
1245See Appellate Body Report, US – Softwood Lumber IV, para. 56.
1246Appellate Body Reports, China – Auto Parts , para. 225 (referring to Appellate Body Report, US –
Section 211 Appropriations Act, para. 106).
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587. We note that the Panel in this dispute did not ultimately arrive at a definitive characterization
of the NASA procurement contracts and USDOD assist ance instruments. According to the Panel,
these measures are not purchases of services, nor grants.
1247 However, having rejected the
characterization advocated by each party, the Panel never provided a definitive view on what it
considered to be the correct characterization of these measures. Instead, the Panel arrived at the
conclusion that the payments and other support are financial contributions by exclusion. This
conclusion seems to have proceeded mechanical ly from the Panel's conclusion that the NASA
procurement contracts and USDOD assistance instruments are not purchases of services. The reason
why one conclusion—that the relevant measures are direct transfers of funds—follows mechanically
from the other—that the same measures are not purchases of services—is not explained by the Panel.
588. The other curious feature about the Panel's approach is that it framed its inquiry as one
seeking to determine whether a category of measures not expressly mentioned (purchases of services)
is "excluded" from the scope of Article 1.1(a)(1) of the SCM Agreement. It is not clear to us why, in
the face of arguments by the European Commun ities that the payments under the contracts fall within
the scope of Article 1.1(a)(1)(i) because they ar e grants—a category of financial contributions
expressly mentioned in that provision—the Panel started from the premise that it was required to
determine whether purchases of services—a category that is not mentioned in that provision—are
excluded from its scope.
589. We consider that the Panel should first have examined the measure s to determine their
relevant characteristics, and then considered whet her, in the light of a proper interpretation of
Article 1.1(a)(1), these measures, properly character ized, fall within the scope of that provision.
Given that the Panel failed to undertake a proper anal ysis of the characterizat ion of the measures at
issue, we begin, in subsection 4, with an examination of the measures before us on appeal—that is, the
NASA procurement contracts and the USDOD assistance instruments—in order to determine what are
their relevant characteristics. Next, in sub section 5, we consider the terms and scope of
Article 1.1(a)(1) of the SCM Agreement. Finally, in subsection 6, we determine whether, in the light
of their relevant characteristics, the NASA proc urement contracts and USDOD assistance instruments
fall within any of the four categories of financial contributions covered by Article 1.1(a)(1) of the
SCM Agreement.

1247See, respectively, Panel Report, paras. 7.1027 and 7.1171; and para. 7.1100, footnote 2552 to
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590. We note that the conclusion as to the proper characterization of the measures may have
consequences for the scope of our inquiry. For instan ce, if we were to find that the measures are of a
type that fall within the scope of Article 1.1, there would be no reason for us to examine whether
purchases of services fall within the scope of Article 1.1(a)(1) of the SCM Agreement. Whether or not
purchases of services are covered by Article 1.1(a)(1) would be irrelevant to the question of whether
the measures before us—the NASA procurement contracts and USDOD assistance instruments—
constitute financial contributions. This would render moot the European Union's appeal of the Panel's
interpretation that purchases of services are excluded fro m the scope of Article 1.1(a)(1)(i). It would
also render moot the United States' appeal of the Panel's application of the test it developed for
determining whether the measures could be properly characterized as purchases of services.
591. Before proceeding further, we wish to make a general remark about the Panel's test for
determining whether the measures could properly be characterized as purchases of services. As it
turns out, the Panel's test is of li mited relevance to us given the an alytical approach that we have
adopted. We also recognize that neither participan t directly challenged on appeal the test developed
by the Panel to determine whether the measur es could properly be characterized as purchases of
services. Nevertheless, we wish to note some concerns that we have with the Panel's test. We have
difficulty understanding the legal basis of the test, wh ich does not appear to us to be grounded in the
terms of Article 1.1(a)(1) of the SCM Agreement. Moreover, formulated as it is, requiring an inquiry
into the degree to which either party (Boeing, or the government/unrelated third parties) derives a
disproportionate "benefit" from the transaction, we f ear that the test risks conflating the financial
contribution and benefit elemen ts of a subsidy analysis.
1248 Finally, the Panel's use of the term
"benefit" in its "principally for th e benefit and use" test is somewhat misleading, as this term has a
particular legal meaning under Article 1.1(b) of the SCM Agreement.

1248We are cognizant of prior findings of the Appellate Body that these two inquiries should be kept
distinct. (See Appellate Body Report, Brazil – Aircraft, para. 157)
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4. What is the Proper Characterization of the NASA/USDOD Measures at
Issue?
592. We turn to the measures before us on appeal , namely, the NASA procurement contracts and
USDOD assistance instruments.
(a) NASA procurement contracts
593. The US legislative and regulatory framework indicates that procurement contracts are the
instruments used when the US Gove rnment intends to make a purchase. 1249 The label given to an
instrument under municipal law, however, is not di spositive and cannot be the end of our analysis, as
the United States acknowledged before the Panel.1250 Thus, we continue our assessment by looking at
the other characteristics of the measures.
594. The United States argued that, under the procurement contracts, NASA paid Boeing to
conduct research services. 1251 There is no dispute that NASA made payments to Boeing under the
procurement contracts; however, NASA did more than pay Boeing to conduct R&D. The
transactions are composite in the sense that they involve a combination of elements. Some of the
transactions also involved NASA providing Boeing with access to its equipment, facilities, and
employees to undertake the research project. For example, pursuant to contract NAS1-20546, NASA
was required to make available to McDonnell D ouglas a single-needle computer-controlled stitching
machine and a multi-needle stitching machine. 1252 Under contract NAS1-20553, NASA was required

 1249Under US law, "procurement contracts are the appropriate legal instruments for acquiring …
property or services". United States Code of Federal Regulations , Title 48, section 21.605 defines "acquisition"
as:
{t}he acquiring (by purchase, lease, or barter) of property or services for the
direct benefit or use of the United States Government (see more detailed
definition at 48 CFR 2.101). In accordance with 31 USC, 6303, procurement
contracts are the appropriate legal instruments for acquiring such property or
services.
 Title 48, section 35.003 (Panel Exhibit US-23) el aborates on the requirement that a contract be used
for acquisitions:
(a) Use of contracts . Contracts shall be used only when the principal
purpose is the acquisition of supplies or services for the direct benefit or use
of the Federal Government. Grants or cooperative agreements should be
used when the principal purpose of the transaction is to stimulate or support
research and development for another public purpose.
1250Panel Report, para. 7.1131.
1251Panel Report, para. 7.975.
1252Award contract between NASA and McDonnell Douglas Corporation, No. NAS1-20546,
18 September 1995 (Panel Exhibit EC-324). The United States did not contest that the two machines were
provided by NASA. Instead, the United States argued th at "the machines were not provided as distinct
government action, but rather as an integral element of the terms of the contract for purchases of services
between NASA and McDonnell Douglas". (United States' first written submission to the Panel, footnote 333 to
para. 231)
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to provide Boeing with a resin transfer moulding ("RTM") tool, a winding mandrel tool, a large cure
tool, and an RTM and braiding tool, among others.
1253 Contract NAS1-97040 commits NASA to
supply Boeing with phased array hardware, fan rig test hardware, transducers, instrumentation
adaptors, anemometry sensors, and additional fan rig hardware. 1254 The Panel record also indicates
that some of the contracts awarded to Boeing unde r the ACT programme provided for research teams
that included NASA employees.1255
595. The Panel attributed considerable importance to the access to facilities, equipment, and
employees provided by NASA and concluded that the value of such access was significantly higher
than the value of the payments. The Panel estimat ed the value of the payments to be $1.05 billion,
while the access to equipment, facilities, and employees was estimated to have a value of
$1.55 billion.1256 Thus, under the measures at issue, NASA provides Boeing with funding and also
with access to its facilities, equipment, and employe es, while Boeing contributes the labour of its own
employees as well as the use of its own facilities. Th erefore, in addition to the funding provided by
NASA, the transactions involve NASA and Boeing pooling non-monetary resources and employees.
Another relevant feature is that the subjects to be researched are often determined in a collaborative
arrangement between NASA and the US aeronautics indus try. As noted in more detail below, this
was an aspect of the measures highlighted by the Panel in its analysis of serious prejudice.1257
596. It is clear from the NASA procurement contracts and the arguments put forward by the
United States that scientific and technical informa tion, discoveries, and data are among the expected
outcomes of the research jointly undertaken by Boeing and NASA. The scientific and technical
information may be gathered in reports, the discove ries may be patentable, and the data may also be
subject to certain intellectual property protection and to non-disclosure requirements. Boeing and
NASA have different rights over the use of the results of the research. Both Boeing and NASA
receive access to the scientific info rmation gathered as part of the r esearch. Title to any invention

1253Award contract between NASA and Boeing Commercial Airplane Group, No. NAS1-20553,
25 September 1995 (Panel Exhibit EC-334).
1254Award contract between NASA and Boeing Commercial Airplane Group, No. NAS1-97040,
10 January 1997 (Panel Exhibit US-421).
1255See Panel Report, para. 7.1711 and footnotes 3602-3605 thereto.
1256Panel Report, para. 7.1109. The United States has appealed the Panel's finding as to the total value
of the access to facilities, equipment, and employees provided by NASA to Boeing. The United States' appeal is
directed at the Panel's estimate of the payments made by NASA to Boeing, which was then used to estimate the
value of the access to facilities, equipment, and employees. As the Panel noted, even using the United States'
estimate of the payments provided by NASA to Boei ng ($775 million), the value of the access to facilities,
equipment, and employees would be $1.17 billion. ( Ibid., para. 7.1099) We recognize that this figure may
include access to facilities, equipment, and employ ees provided under Space Act Agreements and not
procurement contracts. Nevertheless, the United States se emed to indicate before the Panel that the value of
goods and services provided und er the Space Act Agreements was approximately $88 million. ( Ibid.,
para. 7.1092)
1257See infra, para. 610.
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discovered as part of the research will bel ong to Boeing under NASA's waiver provisions.
1258 T h e
US Government (of which NASA is a part) receives a royalty-free, government use/purpose license to
use the subject invention. 1259 Under this arrangement, Boeing is not required to pay any royalties to
NASA for any resulting commercial rewards.1260 Boeing obtains rights over the data developed in the
course of performing research, while the US Govern ment receives a royalty-free, "unlimited rights"
license to use, for government purposes, any data produced by the contractor in the course of
performing research funded by NASA. 1261 Some of the contracts contain "Limited Exclusive Rights
Data " ("LERD") clauses, which limit the otherwise "unlimited rights" that the US Government would
normally have in the data developed in the course of the contracted research. As the Panel explained,
these LERD clauses grant Boeing exclusive rights to exploit critical technologies developed under
certain NASA contracts for at least five years from the date the data is reported. The Panel further
explained that "{t}he NASA R&D contracts that contained LERD clauses involved 'joint funding
situations', i.e. contractors were 'contributing a significant amount of their own resources to contract
research efforts'".
1262 Hence, looking at the output side of the transactions, we do not see a
straightforward exchange of monetary resources fo r some kind of non-mone tary consideration.
Instead, the fruits of the research are shared between Boeing and NASA. The fact that the results of
the research may be shared asymmetrically does not alter the conclusion that the research is a
collaborative arrangement.
597. In summary, we see these transactions as involving the provision of funds from NASA and a
pooling of non-monetary resources (such as access to equipment, facilities, and employees) on the
input side.1263 As explained above, they also involve some sharing of the fruits of the research on the
output side. The transactions are collaborative arrangeme nts that are composite in nature in that they
involve various elements that are interlinked. The arrangements are akin to a species of joint venture.
598. Several of the statements by NASA officials quoted by the Panel emphasize the partnership
between NASA and the US aerospace industry.1264 While we do not think that it would be appropriate
to place too much emphasis on these statements—given that NASA officials would have had an
incentive to overstate the cooperation in order to justify obtaining funding for NASA—they

1258See Panel Report, paras. 7.1288-7.1290; see also para. 7.1024.
1259Panel Report, para. 7.1024.
1260Panel Report, para. 7.1024.
1261Panel Report, para. 7.1024.
1262Panel Report, para. 7.1024.
1263As noted supra, para. 596, it would appear that Boeing contributed its own funds to some of the
research projects.
1264See infra, para. 610.
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nevertheless lend further support to the conclusion that the transactions between Boeing and NASA
are comprised of a number of elements and are collaborative in nature.
599. For example, the Panel quotes the response of NASA's Administrator to a question from the
US Senate Committee on Commerce, Science and Transportation, in which he states:
NASA generally performs its research in cooperation with the
aeronautics industry, thereby providing some direct mechanisms for
technology transfer. However, we are stepping up our efforts to
increase and improve industry invo lvement both in planning and
implementing our programs. Additi onally, much of the Aeronautics
investment, beginning in FY 1994, is aimed at developing
technologies to a more advanced stage, reducing the risks sufficiently
for industry commercialization. I ndustry's partnership in the NASA
program should allow manufacturers to easily continue the
technology development through commercialization, as desired.
Furthermore, the natural advantage U.S. industry is afforded through
direct partnership in the NASA technology development program
will be supported by NASA contr acts and cooperative agreements

1265
We note that, in the statement quoted above, NA SA's Administrator asser ts that the "direct
partnership" between NASA and the US aerospace industry is supported by both NASA contracts and
cooperative agreements.
600. In another statement quoted by the Panel, the NASA Administrator downplays the importance
of the funding provided by NASA and instead highlights the importance of the partnership:
If the Europeans are going to make small, marginal improvements
with what we're saying here, we'll whip them. Money is not the
magic ingredient. The partnership is. It is absolutely clear.1266
601. Having reviewed the NASA procurement contract s, we turn next to the USDOD assistance
instruments.

1265Panel Report, para. 7.988 (quoting Competitiveness of the Aerospace Industry Hearing on S. 419
before the US Senate Committee on Commerce, Scien ce, and Transportation, 103rd Congress, first session
(19 May 1993) (Panel Exhibit EC-273), p. 81).
1266Panel Report, para. 7.987 (quoting statement by NASA Administrator Dan Goldin in testimony to
Congress at the 24 April 2001 Senate Hearing on Science, Technology and Space of the Committee on
Commerce, Science and Transportation, FDCH Political Transcripts (Panel Exhibit EC-292), p. 13).
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(b) USDOD assistance instruments
602. The USDOD assistance instruments before us include cooperative agreements and technology
investment agreements, both of which are consider ed instruments used to provide "assistance" under
the US federal regulations. They also include certain "other transactions" entered into by the USDOD
under section 2371 of Title 10 of the United States Code. These are transactions other than contracts,
cooperative agreements, and grants th at may be entered into to carry out basic, applied, and advanced
research projects.
603. The Panel noted that US law draws a distinction between "assistance" and "acquisition".
"Assistance" is defined as follows:
§ 21.615 Assistance
The transfer of a thing of value to a recipient to carry out a public
purpose of support or stimulation authorized by a law of the
United States (see 31 USC 6101(3)). Grants, cooperative agreements,
and technology investment agre ements are examples of legal
instruments used to provide assistance.
By contrast, "acquisition" is defined as:
{t}he acquiring (by purchase, lease, or barter) of property or services
for the direct benefit or use of the United States Government (see
more detailed definition at 48 CFR 2.101). In accordance with
31 USC 6303, procurement contracts are the appropriate legal
instruments for acquiring such property or services.
1267
604. The first thing that strikes us as we review th e USDOD transactions is that the definition of
"assistance" in the federal regulations has language that is similar to that in Article 1.1(a)(1)(i) of the
SCM Agreement. Like Article 1.1(a)(1)(i), the definition of "assistance" refers to a "transfer" from the
government to an enterprise. It also brings to mind the Appellate Body's statement that the
"evaluation of the existence of a financial contri bution involves consideration of the nature of the
transaction through which something of econom ic value is transferred by a government". 1268
Nevertheless, as we have stated above, the particular label that a transaction receives under municipal
law is not determinative, and we must thus exam ine the principal characteristics of the measures
before us. As we did with the NASA procurement contracts, we will look at the input and output
sides of the transactions under the USDOD assistance instruments.

1267United States Code of Federal Regulations, Title 32, section 21.605.
1268Appellate Body Report, US – Softwood Lumber IV, para. 52.
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605. A second feature about the assistance instruments that stands out is that both the USDOD and
Boeing contribute financial resources to the research pr oject. This is a feature that the United States
has emphasized in its appeal of the Panel's findings of benefit.
1269 Our review of the assistance
instruments on record confirms that they commit Boeing to contribute financial resources to the
project, although, in all cases, the USDOD funds at least 50% of the costs. In other words, the
assistance instruments provide for the joint funding of the research projects.
606. A further feature to note is the degree of USDOD involvement that is called for under the
cooperative agreements, one of the instrument s that the Panel included among the assistance
instruments. The United States itself distinguished the cooperative agreements from grants by noting
that "the government will have 'substantial involvement' in the work done under a cooperative
agreement, including collaboration, participation, or intervention".1270
607. Moreover, as with the NASA procurement contracts, the USDOD provides more than funding
for the projects. The USDOD al so provides Boeing with access to its facilities under some of the
assistance instruments. 1271 In addition, as the Panel noted in its analysis of serious prejudice, the
subjects to be researched are often decide d in collaboration between the USDOD and Boeing. 1272
Thus, from the funding perspective, the measures i nvolve a pooling of monetary and non-monetary
resources.
608. Turning to the outputs expected from the transactions, we note that the situation is similar to
that under the NASA procurement contracts. Scientif ic information is shared between the parties.
Boeing obtains title to any invent ions and the US Government receives a royalty-free government
use/purpose licence to use the invention. 1273 Boeing also obtains rights over the data. 1274 For its part,
the US Government obtains only " limited rights" over the data. These rights are more limited in the
case of the assistance instruments than the NASA procurement contracts because Boeing co-funds the
research under the USDOD assistance instruments. The Panel explained that, in such cases, the
government generally "may release or disclose the data outside the government only for government

1269United States' other appellant's submission, para. 119.
1270United States' response to Panel Question 20(a), para. 45 (quoting United States Code of Federal
Regulations, Title 32, section 22.215(a)(2) (Panel Exhibit US-1214)).
1271Panel Report, para. 7.1171.
1272See infra, para. 610.
1273Panel Report, para. 7.1149.
1274The Panel noted that, "{a}s a general rule, contractors own all technical data (i.e. data rights)
produced with U.S. government funding, and may use these for their own commercial purposes". (Panel Report,
para. 7.1296)
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purposes (government purpose rights)".
1275 It further noted that "the term for these 'government
purpose rights' is negotiable, with five years bein g the baseline, subject to negotiation between the
parties".1276 Therefore, from the perspective of the out puts, these measures involve a sharing of the
fruits of the research.
609. Accordingly, the transactions under the USDOD assistance instruments are composite in that
they involve a combination of funding and access to facilities. They are collaborative in nature, as
they involve the USDOD and Boeing pooling moneta ry and non-monetary resources on the input side
and some sharing of the fruits of the research on the output side. Indeed, before the Panel, the
United States described the assistance instruments as transactions in which the "{US}DOD and the
contractor both put forward resources to achieve a common goal for the benefit of both".
1277 As we
have noted earlier, these are not the usual characte ristics of a purchase transaction. Rather, these
features resemble a joint venture arrangement.
(c) The Panel's description of the transactions in its analysis of serious
prejudice
610. Although the Panel did not focus in its assessment of financial contribution on the composite
nature of the measures and the collaborative relationship between NASA/USDOD and Boeing, the
Panel did highlight these features in the section of its Report that addresses the
European Communities' claims of serious prejudi ce. The Panel stated that the aeronautics R&D
subsidies operated as "collaborative research projects".
1278 This collaboration was evident, according
to the Panel, in how the research priorities were de termined. For example, the Panel found that "the
evidence shows that the R&D was often undertaken at the behest of and in close collaboration with
the U.S. industry". 1279 It further found that "the focus of the research under the aeronautics R&D
programmes on areas of primary strategic importance to the U.S. civil aircraft industry is hardly
surprising given that the definition of the scope and programme of research was arrived at in
collaboration with industry." 1280 The Panel also referred to "B oeing's collaboration with NASA in

1275Panel Report, para. 7.1150 (quoting United States Code of Federal Regulations , Title 48, section
227.7103-4(a)(1) (Panel Exhibit EC-590)). (emphasis added by the Panel) The Panel clarified, however, that the
government may "use, modify, release, reproduce, perform, display or disclose" such jointly-funded data
"within the Government without restriction". ( Ibid., footnote 2723 to para. 7.1150 (quoting United States Code
of Federal Regulations, Title 48, section 227.7103-4(a)(1)))
1276Panel Report, para. 7.1150 (quoting United States Code of Federal Regulations , Title 48, section
227.7103-5(b)(2) (Panel Exhibit EC-590)).
1277United States' first written submission to the Panel, para. 97. (original emphasis)
1278Panel Report, para. 7.1746.
1279Panel Report, para. 7.1709.
1280Panel Report, para. 7.1745.
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specifying and planning the research t asks that it would undertake for NASA".
1281 As regards the
USDOD's ManTech and DUS&T programmes, the Panel observed that these programmes "envisage
collaboration with industry in developing tec hnologies, including cost reduction processes and
practices that have application in the civil sector". 1282 Furthermore, the Panel made findings as to the
various components and collaborativ e nature of the learning process. The Panel found that "the
evidence before {it was} consistent with a pattern whereby the technology concepts studied under the
NASA R&D subsidies and the technologies applied to the 787 are essentially part of the same process
in which solutions to technological problems are developed (through a collective exercise of
progressive learning through trial and error invol ving largely the same teams of people over an
extended period of time)."1283 The Panel again pointed to the collaborative nature of the arrangements
between Boeing and NASA/USDOD in the conclusi on of its analysis of the operation of the
aeronautics R&D subsidies:
For the reasons set forth above, we would characterize the NASA
R&D subsidies as strategically-focused R&D programmes with a
significant and pervasive commercial dimension, undertaken in
collaboration with U.S. industry to provide competitive advantages
to U.S. industry by funding research into high risk, high pay-off
research of the sort that individual companies are unlikely to fund on
their own. The {US}DOD R&D s ubsidies funded through the
ManTech and DUS&T programmes under {US}DOD's RDT&E
Program are focused on pursuing "dual use" technologies through
collaborative efforts with U.S. industry.
1284 (emphasis added)
Hence, the Panel's discussion of the collaborativ e relationship between Boeing, on the one hand, and
NASA/USDOD, on the other hand, is consistent with our assessment of the principal characteristics
and the composite nature of the transactions unde rtaken pursuant to the NASA procurement contracts
and pursuant to the USDOD assistance instruments.
(d) Summary of the main characteristics of the measures
611. We have carefully scrutinized the transacti ons under the NASA procurement contracts and
under the USDOD assistance instruments and have been able to identify their principal characteristics.
The transactions are composed of the following elements. The NASA procurement contracts and
USDOD assistance instruments involve the commitment of resources from both parties. In the case of
the NASA procurement contracts, NASA commits to provide financial resources and contributes the
use of its facilities, equipment, and employees, while Boeing contributes the work of its scientists and

1281Panel Report, para. 7.1746.
1282Panel Report, para. 7.1740.
1283Panel Report, para. 7.1750.
1284Panel Report, para. 7.1764.
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engineers.
1285 Under the USDOD assistance instruments, the USDOD commits to provide financial
resources and access to its facilities, and Boeing contri butes the work of its scientists and engineers,
as well as its own financial resources. Thus, both types of instruments involve monetary and non-
monetary contributions. Moreover, the subjects to be researched are often determined collaboratively
between NASA/USDOD and Boeing. The fruits of the research are shared between Boeing and
NASA or Boeing and the USDOD. Boeing obtains title to inventions and rights to the data that allow
use for commercial purposes, while the US Governme nt obtains a royalty-free licence to use the
technology or data for government purposes only. Accordingly, the transactions under the NASA
procurement contracts and under the USDOD assistance instruments are akin to a species of joint
venture.
5. The Types of Financial Contributions Covered by Article 1.1(a)(1) of the
SCM Agreement
612. We turn now to Article 1.1(a)(1) of the SCM Agreement, which provides:
Definition of a Subsidy
1.1 For the purpose of this Ag reement, a subsidy shall be
deemed to exist if:
(a)(1) there is a financial contribution by a government or any
public body within the territory of a Member (referred to in this
Agreement as "government"), i.e. where:
(i) a government practice involves a direct transfer of funds (e.g.
grants, loans, and equity infusion), potential direct transfers of funds
or liabilities (e.g. loan guarantees);
(ii) government revenue that is otherwise due is foregone or not
collected (e.g. fiscal incentives such as tax credits);
(iii) a government provides goods or services other than general
infrastructure, or purchases goods;
(iv) a government makes payments to a funding mechanism, or
entrusts or directs a private body to carry out one or more of the type
of functions illustrated in (i) to (iii) above which would normally be
vested in the government and the pr actice, in no real sense, differs
from practices normally followed by governments{.}

1285As noted supra, para. 596, it would appear that Boeing contributed financial resources to some of
the research projects.
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613. Beginning with the general architecture and structure of the provision, we note that
Article 1.1(a)(1) defines and identifies the government conduct that constitutes a financial
contribution for purposes of the SCM Agreement. Subparagraphs (i)-(iv) exhaust the types of
government conduct deemed to constitu te a financial contribution. This is because the introductory
chapeau to the subparagraphs states that "there is a financial contribution by a government …,
i.e. where:".
1286 Some of the categories of conduct—for in stance those specified in subparagraphs (i)
and (ii)—are described in general terms with illust rative examples that provide an indication of the
common features that characterize the conduct referred to more generally. Article 1.1(a)(1), however,
does not explicitly spell out the intended rela tionship between the c onstituent subparagraphs. 1287
Finally, the subparagraphs focus primarily on the action taken by the government or a public body.
614. Subparagraph (i) of Article 1.1(a)(1) identifi es, as one type of financial contribution, a
government practice involving "a direct transfer of funds". It indicates action involving the
conveyance of funds from the government to the r ecipient. The Appellate Body has endorsed a
meaning of "funds" that includes not only money, but also financial resources and other financial
claims more generally.1288 The direct transfer of funds in subparagraph (i) therefore captures conduct
on the part of the government by which money, fina ncial resources, and/or financial claims are made
available to a recipient.
615. Article 1.1(a)(1)(i) lists in brackets examples of di rect transfers of funds ("e.g. grants, loans,
and equity infusion"). As the Appellate Body has c onfirmed, the fact that the words "grants, loans,
and equity infusion" are preceded by the abbreviation "e.g.", indicates that they are cited as examples
of transactions falling within the scope of Article 1.1(a)(1)(i). 1289 These examples, which are
illustrative, do not exhaust the class of conduct capt ured by subparagraph (i). The inclusion of
specific examples nevertheless provides an indication of the types of transactions intended to be
covered by the more general reference to "direct transfer of funds". 1290 Indeed, in Japan – DRAMs
(Korea), the Appellate Body found that transactions that are similar to those expressly listed in

1286Emphasis added. Neither participant disputed this interpretation of Article 1.1(a)(1) at the oral
hearing.
1287The structure of that provision does not expressly preclude that a transaction could be covered by
more than one subparagraph. There is, for example, no "or" included between the subparagraphs.
1288See Appellate Body Report, Japan – DRAMs (Korea), para. 250.
1289Appellate Body Report, Japan – DRAMs (Korea), para. 251.
1290At the oral hearing, the United States referred to the Latin canon of construction, "ejusdem generis",
which provides that, when a general word or phrase follows a list of specific persons or things, the general word
or phrase will be interpreted to include only person s or things of the same type as those listed. ( Black's Law
Dictionary, 7th edn (West Group, 1999), p. 535) In our view, the doctrine would equally apply to situations
where the general word or phrase precedes the specified list.
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subparagraph (i)—in that case, debt forgiveness, the extension of a loan maturity, and debt-to-equity
swaps—are also covered by that provision.
1291
616. Turning to the first example—a "grant"—we not e that, in such a transaction, money or
money's worth is given to a recipient, normally without an obligation or expectation that anything will
be provided to the grantor in return. 1292 "Loans" and "equity infusions" are characterized by
reciprocity. With a loan, the lender lends money or money's worth on the basis that the principal,
along with interest as may be agreed, is repaid. Under a loan, the lender will usually earn a return on
the amount borrowed. In the case of an equity infusion, a government's provision of capital to a
recipient is made in return for the acquisition of shares. The provider of the capital thereby makes an
investment in the recipient enterprise
1293 and will be entitled to the dividends or any capital gains
attributable to that investment. The return s on the investment will depend on the success of the
recipient enterprise. At the time the governme nt provides the capital, it does not know how the
recipient enterprise will perform. Th e equity investor enjoys a return on its capital to the extent the
enterprise succeeds, and suffers losses in capital to the extent it fails.
617. It is clear from the examples in subparagraph (i) that a direct transfer of funds will normally
involve financing by the government to the recipient. In some instances, as in the case of grants, the
conveyance of funds will not involve a reciprocal ob ligation on the part of the recipient. In other
cases, such as loans and equity infusions, the r ecipient assumes obligations to the government in
exchange for the funds provided.1294 Thus, the provision of funding may amount to a donation or may
involve reciprocal rights and obligations.
618. We turn now to subparagraph (iii) of Article 1.1(a)(1), which identifies another type of
financial contribution. That subpa ragraph contemplates two distinct types of transaction: the first is
where a government "provides goods or services other than general infrastructure"; and the second
relates to situations in which a government "purch ases goods" from an enterprise. In the case of the
provision of goods or services, subparagraph (iii) does not specify whether the goods or services are

1291Appellate Body Report, Japan – DRAMs (Korea), paras. 251 and 252.
1292Grants can take many forms. Some conditional gran ts, for example, require the recipient to use the
funds for a specific purpose. Other conditional grants ma y require a recipient to itself raise part of the funds
needed for a project.
1293This notion of an investment through an equity infusion is reinforced by Article 14(a) of the
SCM Agreement, which expressly provides that the determination of whether an equity infusion confers a
benefit must be made based on whether the "investment decision" is inconsistent with the "usual investment
practice" of private investors in the territory of the Member.
1294The fact that there is an element of reciprocity in some of th e transactions listed as examples in
subparagraph (i) does not mean that what is provided to the government by the recipient in return for the funds
must be equivalent to the value of the funds. That issue becomes relevant in the subsequent assessment of
benefit under Article 1.1(b) of the SCM Agreement.
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provided gratuitously or in exchange for money or other goods or services. Thus, the provision of
goods or services may include transactions in which the recipient is not required to make any form of
payment, as well as transactions in which the reci pient pays for the goods or services. Therefore,
what is captured in the first sub-clause of subpara graph (iii), as well as in subparagraph (i), is a
government's provision or goods or services, or of funds, irrespective of whether this is done
gratuitously or in exchange for consideration. The difference between the two types of government
conduct, however, lies in what is being transferre d by the government. Under subparagraph (i), the
government transfers financial resources, while under subparagraph (iii) (first sub-clause), the
government provides a good or service.
619. With respect to the second sub-clause of subparagraph (iii)—where a government "purchases
goods"—we note that the goods are provided to the government by the recipient, in contrast to the
first sub-clause of that paragraph, where the goods are provided by the government. There are two
additional differences between the first and sec ond sub-clauses of subparagraph (iii). The second
sub-clause uses the term "purchase", which is usually understood to mean that the person or entity
providing the goods will receive some consideration in return. The other difference is that, in contrast
to the first sub-clause that addresses the provision of goods and services, the second sub-clause refers
only to purchases of "goods", and not of "services".
1295
620. The Panel in this dispute interpreted the om ission of the term "services" from the second
sub-clause of subparagraph (iii) as an indication that the drafters of the SCM Agreement did not intend
measures constituting government purchases of services to be covered as financial contributions under
Article 1.1(a)(1)(i).1296 This interpretative issue does not need to be resolved by us because it is not
relevant for purposes of resolving the dispute be fore us, that is, whether the NASA procurement
contracts and USDOD assistance instruments, whic h we have found to resemble joint ventures,
constitute financial contribu tions within the meaning of Article 1.1(a)(1) of the SCM Agreement.1297
We therefore declare the Panel's interpretation that "tran sactions properly characterized as purchases

1295"Goods" are tangible items. They are often contra sted against "services", which are intangible.
There are a number of distinctions usually drawn between services and goods. As opposed to goods, typical
features of services include their immaterial, invisible, intangible, non-storable, and transitory nature. Services
are usually produced and consumed simultaneously, while goods are not. However, it may be difficult to
separate goods from services, for inst ance where services are an input or processing step in the production of
goods.
1296See Panel Report, paras. 7.955, 7.969, and 7.970.
1297The Appellate Body proceeded in a similar manner in US – Upland Cotton with respect to the
interpretation of Article 6.3(d) of the SCM Agreement.
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of services are excluded from the scope of Article 1.1(a)(1)(i) of the SCM Agreement"
1298 to be moot
and of no legal effect.
6. Do the NASA and USDOD Measures Raised on Appeal Constitute
Financial Contributions within the M eaning of Article 1.1(a)(1) of the
SCM Agreement?
621. Having identified the principal characteristics of the measures before us and interpreted the
relevant provisions of Article 1.1(a)(1), we mu st now determine whether the measures fall under one
of the subparagraphs of Article 1.1(a)(1) of the SCM Agreement. We begin with subparagraph (i),
which we recall refers to "a government practice {that} involves a direct transfer of funds (e.g. grants,
loans, and equity infusion), potential direct transfer s of funds or liabilities (e.g. loan guarantees)". As
we have noted above, the examples listed in subparagraph (i) provide an indication of the types of
transactions intended to be covered by the more general reference to "direct transfer of funds".
622. With respect to the examples in Article 1.1(a )(1)(i), we observe several similarities between
the collaborative undertakings that are the NASA/US DOD measures before us a nd equity infusions.
We recall that, in the case of an equity infusion, a government's provision of capital to a recipient is
made in return for the acquisition of shares. The provider of the capital ther eby makes an investment
in the recipient enterprise, and will be entitled to the dividends or any capital gains attributable to that
investment. The return of the investment will de pend on the success of the recipient enterprise. At
the time the government provides the capital, it do es not know how the recipient enterprise will
perform. The equity investor enjoys a return on its capital to the extent the enterprise succeeds, and
suffers losses in capital to the exte nt it fails. This type of transact ion can be replicated through other
arrangements, such as by means of a joint venture.
623. Like equity investors, NASA and the USDOD pr ovide funding. This funding is provided in
the expectation of some kind of return. In the case of NASA and USDOD funding to Boeing, the
return is not financial, but rather takes the form of scientific and technical information, discoveries,
and data expected to result from the research perform ed. Again, like equity investors, NASA and the
USDOD have no certainty at the time they commit the funding that the research will be successful.
Success will depend on whether any inventions ar e discovered and the usefulness of the data

1298Panel Report, para. 7.970. (emphasis omitted) Our findings of financial contributions regarding the
payments and other support provided under the NA SA procurement contracts and USDOD assistance
instruments are based on the particular characteristics of those measures. We also declare moot the Panel's
finding, in paragraph 7.1171 of its Report, that the US DOD procurement contracts are properly characterized as
"purchases of services" and thus are not financial contributions under Article 1.1(a)(1). However, as neither
participant has requested us to do so, we do not co mplete the analysis regarding the USDOD procurement
contracts at issue in this dispute.
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collected, as well as the scientific and technical information produced. NASA's and the USDOD's
risks are limited to the amount of money they contri bute and the opportunity cost of the other support
they provide to the project, much like an equity in vestor. And like some equity investors, NASA and
the USDOD contribute to the project by providing access to facilities, equipment, and employees.
624. In sum, the particular characteristics of the NASA procurement contracts and USDOD
assistance instruments before us are such that, in our view, they are most appropriately characterized
as being akin to a species of joint venture. Fu rthermore, these joint venture arrangements between
NASA/USDOD and Boeing have characteristics analogous to equity infusions, one of the examples of
financial contributions included in Article 1.1(a)(1)(i) of the SCM Agreement. We recall that, under
subparagraph (i), there is a financial contributi on where "a government practice involves a direct
transfer of funds". Several examples of direct transfers of funds are provided. These examples are
not exhaustive. Where, as here, there are measure s that have sufficient characteristics in common
with one of the examples in subparagraph (i), this commonality indicates to us that the measures fall
within the concept of "direct tran sfers of funds" in Article 1.1(a )(1)(i). We have identified two
contributions by NASA and the USDOD under the r espective joint ventures. Both NASA and the
USDOD provided payments to Boeing to undertake the research. These payments constitute a direct
transfer of funds within the meaning of Article 1. 1(a)(1)(i). In addition, Boeing was given access to
NASA facilities, equipment, and employees and to USDOD facilities, which constitute the provision
of goods or services within the meaning of Article 1.1(a)(1)(iii) of the SCM Agreement.
625. For these reasons, we find that the payments and access to facilities, equipment, and
employees provided to Boeing under the NASA procurem ent contracts at issue constitute financial
contributions within the meaning of Article 1.1(a)(1) of the SCM Agreement. We similarly find that
the payments and access to facilities provided to Boeing under the USDOD assistance instruments at
issue also constitute financial contributions w ithin the meaning of Article 1.1(a)(1) of the
SCM Agreement.
1299 We further recall that we have declared the Panel's interpretation that

1299We note that the United States raised a claim under Article 11 of the DSU concerning the Panel's
assessment of whether the NASA procurement contracts we re purchases of services. As explained above, the
Panel undertook this assessment on the basis of its "principal beneficiary and user" test. In its appellant's
submission, the United States also suggests that the Panel's finding of financial contribution relating to the
access to facilities, equipment, and employees under the NASA procurement contracts did not comply with the
requirements of Article 12.7 of the DSU because it "would appear" that the Panel failed to set out its findings of
fact or the basic rationale behind its finding. (United States' other appellant's submission, para. 38) However,
the only argument that the United States makes in support of its Article 12.7 allegation is that the Panel's finding
as to the access to facilities, equipment, and employees is dependent on the finding that the NASA procurement
contracts were not purchases of services. Because we have not adopted the Panel's "principal beneficiary and
user" test, nor its conclusions as to whether the NASA pr ocurement contracts are purchases of services, there is
no basis to address the claim of the United States under Article 11 or its fleeting allegation under Article 12.7 of
the DSU.
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transactions properly characterized as purch ases of services are excluded from the scope of
Article 1.1(a)(1)(i) of the SCM Agreement to be moot and of no legal effect.
B. Benefit
626. We turn to the United States' appeal of the Panel's findings that the NASA and USDOD
measures found to be financial contributions confer red a benefit on Boeing within the meaning of
Article 1.1(b) of the SCM Agreement.
1300 The Panel's findings are su mmarized in subsection 1.
We review the Panel's assessment of benefit in subsection 2.
1. The Panel's Findings
(a) NASA
627. The Panel began its analysis by recalling that, w ithin the meaning of Article 1.1(b) of the
SCM Agreement, a financial contribution confers a benefit if the terms of the financial contribution
are more favourable than the terms available to the recipient in the market.1301 Accordingly, the Panel
stated that it was necessary to compare the terms of NASA's financial contributions with the terms of
a market transaction in order to determine whether a benefit was conferred on Boeing.
628. The Panel also recalled that, in its analysis of the existence of a financial contribution, it had
already concluded that NASA had made paymen ts to Boeing and granted Boeing access to NASA
facilities, equipment, and employees " on the condition that Boeing perform aeronautics R&D work
that is principally for Boeing's own benefit and use, rather than principally for the benefit or use of the
U.S. Government (or unrelated third parties)". 1302 This was, according to the Panel, "the core 'term'"
upon which the financial contributions were provided. 1303 The Panel additionally noted that, with

1300In its Notice of Other Appeal, the United States indicated that it appeals the Panel's finding of
benefit concerning both the NASA procurement contracts and Space Act Agreements. However, the United
States' appeal of the finding of benefit with respect to the NASA measures is merely consequential to its appeal
of the Panel's finding of financial contribution and that appeal is limited to the NASA procurement contracts.
The United States does not appeal the Panel's finding of financial contribution concerning the Space Act
Agreements challenged by the European Communities. In fact, the Panel noted that during the Panel
proceedings the United States had "accept{ed} that th e provision of (access to) facilities, equipment and
employees provided to Boei ng through the Space Act Agre ements at issue constitutes a provision of goods or
services within the meaning of Article 1.1(a)(1)(iii) of the SCM Agreement". (Panel Report, para. 7.976) In the
light of the above, we limit our review of the Panel's finding of benefit relating to the NASA measures to the
NASA procurement contracts and do not further address the NASA Space Act Agreements in this section of
our Report.
1301Panel Report, para. 7.1037 (referring to paras. 7.30 and 7.31).
1302Panel Report, para. 7.1038. (original emphasis)
1303Panel Report, para. 7.1038. In this regard, the Panel referred to its previous conclusion that
"a transaction in which the work performed is principally for the benefit and use of the 'seller' cannot properly
be characterized as a 'purchase of services'." (Ibid.)
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respect to the financial contributions receive d by Boeing under the NASA R&D programmes, both
parties agreed that "the relevant market benchmar k would be the terms of a commercial transaction in
which one entity pays another entity to conduct R&D".
1304
629. Taking this into consideration, the Panel be lieved that no private entity acting pursuant to
commercial considerations would provide paymen ts and access to its facilities and personnel to
another commercial entity on the condition that th e other entity perform R&D activities principally
for the benefit and use of that other entity. 1305 The Panel considered that, "{a}t a minimum, it would
be expected that some form of royalties or repaym ent would be required in the event that financial
contributions were provided on such terms." 1306 Accordingly, the Panel found that the
European Communities did not need to present ev idence of the terms and conditions of specific
market-based R&D financing "in order to establish, at least on a prima facie basis, that these NASA
transactions conferred a benefit upon Boeing". 1307 In the Panel's view, it was for the United States to
rebut this prima facie case by means of identifying examples of transactions in which commercial
entities have paid other commercial entities to perfo rm R&D principally for the latter's benefit and
use. The Panel observed that the United States failed to provide any evidence in this regard.
630. The Panel therefore concluded that the financ ial contributions provided to Boeing under the
aeronautics R&D contracts and agreements with NAS A conferred a benefit within the meaning of
Article 1.1(b) of the SCM Agreement.1308
(b) USDOD
631. The Panel's reasoning with respect to the paym ents and other support provided to Boeing
under the USDOD assistance instruments was very similar to that for the NASA measures. The Panel
recalled that it is well established that, within the meaning of Article 1.1(b) of the SCM Agreement, a
financial contribution confers a benefit if the terms of the financial contribution are more favourable
than the terms available to the recipient in the market. 1309 Accordingly, the Panel said that it was
necessary to compare the terms of the USDOD's financial contributions with the terms of a market
transaction in order to determine whether a benefit was conferred on Boeing.

1304Panel Report, para. 7.1039 (quoting European Communities' response to Panel Question 21,
para. 76; and referring to United States' response to Panel Question 136, para. 85).
1305Panel Report, para. 7.1039.
1306Panel Report, para. 7.1039.
1307Panel Report, para. 7.1039.
1308Panel Report, para. 7.1040.
1309Panel Report, para. 7.1182 (referring to paras. 7.30 and 7.31, in turn referring to Appellate Body
Report, Canada – Aircraft, para. 157; and Panel Report, US – Upland Cotton, para. 7.1142).
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632. The Panel further recalled that, in its analysis of the existence of a financial contribution, it
had already concluded that the USDOD had made payments to Boeing and granted Boeing access to
USDOD facilities "on the condition that Boeing perform aeronautics R&D work that is principally for
Boeing's own benefit and use, rather than principally for the benefit or use of the U.S. Government (or
unrelated third parties)".
1310 This was, in the Panel's view, "t he core 'term'" upon which the financial
contributions were provided.1311 The Panel noted that both parties agreed that, regarding the financial
contributions that Boeing received under the USDOD R&D programmes, "the relevant market
benchmark would be the terms of a commercial trans action in which one entity pays another entity to
conduct R&D".1312
633. Taking this into consideration, the Panel be lieved that no private entity acting pursuant to
commercial considerations would provide payments and access to its facilities to another commercial
entity on the condition that the other entity perform R&D activities principally for the benefit and use
of that other entity. 1313 The Panel again considered that, "{a}t a minimum, it is to be expected that
some form of royalties or repayment would be require d in the event that financial contributions were
provided on such terms." 1314 In the light of this, the Panel found that the European Communities did
not have to present evidence of the terms and condi tions of specific market-based R&D financing "in
order to establish, at least on a prima facie basis, that these {US}DOD transactions conferred a benefit
upon Boeing".1315 In the Panel's view, it was rather for the United States to rebut this prima facie case
by means of identifying examples of transactions in which commercial entities have paid other
commercial entities to perform R&D principally for the latter's benefit and use. However, the
United States failed to provide any evidence in this respect.
634. Accordingly, the Panel found that the financia l contributions provided to Boeing under the
USDOD aeronautics R&D assistance instruments conferred a benefit within the meaning of
Article 1.1(b) of the SCM Agreement.1316

1310Panel Report, para. 7.1183. (original emphasis)
1311Panel Report, para. 7.1183. In this respect, the Panel referred to its previous conclusion that
"a transaction in which the work performed is principally for the benefit and use of the 'seller' cannot properly
be characterized as a 'purchase of services'." (Ibid.)
1312Panel Report, para. 7.1184 (quoting European Communities' response to Panel Question 21,
para. 76; and referring to United States' response to Panel Question 136, para. 85).
1313Panel Report, para. 7.1184.
1314Panel Report, para. 7.1184.
1315Panel Report, para. 7.1184.
1316Panel Report, para. 7.1185.
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2. Did the Panel Err in Determining Benefit?
635. In order to constitute a subsidy for purposes of the SCM Agreement, a financial contribution
must confer a benefit within the meaning of Article 1.1(b). The Appellate Body has explained that:
… the word "benefit", as used in Article 1.1(b), implies some kind of
comparison. This must be so, for there can be no "benefit" to the
recipient unless the "financial c ontribution" makes the recipient
"better off" than it would otherwise have been, absent that
contribution. In our view, the ma rketplace provides an appropriate
basis for comparison in determini ng whether a "benefit" has been
"conferred", because the trade-distorting potential of a "financial
contribution" can be identified by determining whether the recipient
has received a "financial contribution" on terms more favourable than
those available to the recipient in the market.
1317
636. The Appellate Body provided further clarifi cation of the concept of "benefit" in
EC and certain member States – Large Civil Aircraft . In that appeal, the Appellate Body approached
the enquiry of benefit as one that is financial in na ture and in which the behaviour of the grantor and
recipient of the alleged subsidy at issue are assessed against the behaviour of commercial actors in the
market.1318 The Appellate Body also explained that th e assessment of benefit must examine the terms
and conditions of the challenged transaction at the ti me it is made and compare them to the terms and
conditions that would have been offered in the market at that time.1319
637. The United States appeals the Panel's finding of benefit with respect to both the NASA and
USDOD measures. As regards the NASA measures, the United States submits that the Panel's finding
that research under the NASA R&D contracts was "principally for Boeing's own benefit and use" 1320
was the sole justification for the finding that the NASA aeronautics R&D programmes conferred a
benefit.1321 In the United States' view, since the former finding is erroneous, the latter finding of
existence of a benefit is equally erroneous. With respect to the USDOD measures, the United States
argues that the Panel erred because it failed to cons ider that Boeing funded part of the costs of the
research undertaken pursuant to the assistance instruments.1322

1318Appellate Body Report, EC and certain member States – Large Civil Aircraft, paras. 706 and 836.
1319Appellate Body Report, EC and certain member States – Large Civil Aircraft , para. 838. This
means that "the determination of benefit under Article 1.1(b) of the SCM Agreement is an ex ante analysis that
does not depend on how the particular financial contribution actually performed after it was granted." ( Ibid.,
para. 706)
1320Panel Report, para. 7.1038. (emphasis omitted)
1321United States' other appellant's submission, paras. 64 and 65 (referring to Panel Report,
paras. 7.1038 and 7.1039).
1322United States' other appellant's submission, para. 116.
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638. The European Union asserts that the United States fails to identify any errors in the Panel's
evaluation of the existence of financial contributi ons, either with respect to the application of
Article 1.1(a)(1) of the SCM Agreement or the consistency of the Pane l's assessment with Article 11
of the DSU. Consequently, in view of the fact that "the US Article 1.1(b) appeal is entirely based on
its Article 1.1(a)(1) appeal"
1323, it is the European Union's view th at the United States' appeal under
Article 1.1(b) must likewise fail. In addition, the European Union states that, in its financial
contribution analysis, the Panel properly character ized the USDOD's R&D assistance instruments as
transactions "principally for Boeing's own benef it and use" without "some form of royalties or
repayment", and, accordingly, the Panel's conc lusion that a benefit exists based on this
characterization was also proper. 1324 The European Union points out that the United States has
provided no information as to the actual results of the R&D funded by the USDOD assistance
instruments, or on how the income generated fro m those results may translate into payments from
Boeing to the USDOD for the contributions made by the USDOD towards that R&D.1325
639. At the outset of its analysis, the Panel observe d that "{a} financial contribution confers a
benefit within the meaning of Article 1.1(b) of the SCM Agreement if the terms of the financial
contribution are more favourable than the term s available to the recipient in the market." 1326
According to the Panel, this meant that:
... in order to determine whet her NASA's {and the USDOD's}
financial contributions to Boeing confer a benefit upon Boeing within
the meaning of Article 1.1(b), the Panel must begin by recalling what
the terms of those financial contributions are. Only then can the
Panel proceed to compare those terms with the terms of a market
transaction.
1327 (original emphasis)
640. After recalling some of its findings concerning th e terms of the transactions, the Panel further
elaborated on what it considered to be the relevant legal question. The Panel described the question
as follows:
In this case, both parties agree that , with regard to the financial
contributions that Boeing receives under the NASA R&D
programmes {and under the USDOD programmes}, "the relevant
market benchmark would be the terms of a commercial transaction in
which one entity pays another entity to conduct R&D". The
question, then, is whether, in a commercial transaction, one entity

1323European Union's appellee's submission, para. 93.
1324European Union's appellee's submission, para. 172 (quoting Panel Report, paras. 7.1183 and 7.1184,
and referring to para. 7.1185).
1325European Union's appellee's submission, para. 175.
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would pay another entity to conduct R&D on these same terms, i.e.
on the term that the entity recei ving the financial contributions
conducts R&D that is principally for the benefit and use of the entity
receiving the payment.
1328 (footnote omitted)
641. The Panel's benefit test is closely related to the test that the Panel had developed in its
assessment of financial contribution to determin e whether the NASA and USDOD measures could be
characterized as purchases of services. 1329 Both the test for purchases of services and for benefit
revolve around the question of which party to the tr ansaction derives the "principal benefit and use"
from the research. We see several problems with the Panel's approach. First, as we have noted
earlier, it risks conflating what are two separate elemen ts of the definition of "subsidy" in Article 1.1
of the SCM Agreement. Under the approach adopted by the Panel, a determination that a transaction
is not a purchase of services—because the R&D is principally for the benefit of the commissioned
party rather than the commissioning government—m akes the determination of benefit almost a
foregone conclusion. 1330 A further problem with the Panel's test is that the identification of the
principal user or beneficiary of the research, on the basis of the five factors relied on by the Panel,
does not capture the relevant inquiry under Article 1.1(b), which involves a consideration as to
whether the measure is consistent with a market benchmark.
1331 Where a panel is confronted with a
measure in which both the government and the co mmissioned firm have provided funding or made
other contributions, and the results of their invest ments are shared between them, it may consider the
relationship between what they have contributed and how the results thereof are shared. But the
distribution of the returns under particular NAS A procurement contracts and USDOD assistance
instruments does not indicate by itself what the distribution of those returns would be in the market.

1329Panel Report, para. 7.978. In its analysis of whether the NASA and USDOD measures constituted
financial contributions, the Panel said that whether a tran saction could properly be ch aracterized as a purchase
of service turned on " whether the R&D that Boeing was required to conduct was principally for its own benefit
and use, or whether it was principally for the bene fit and use of the U.S. Government (or unrelated third
parties)." (Ibid. (original emphasis))
1330It would appear that when the Panel referred to the "principal benefit and use" of the research, in the
context of its purchases of services test, it was using the term "benefit" in the generic sense, that is, generally
connoting value received. Given that th e term "benefit" is used as a legal concept with a distinct meaning in
Article 1.1(b) of the SCM Agreement, the Panel should have avoided using the term generically in its test.
1331We note that the thrust of the United States' appeal is that the Panel's findings relating to the NASA
procurement contracts is focused exclusively on the finding that the research conducted by Boeing under those
contracts was principally for the benefit of Boeing. (United States' other appellant's submission, para. 65) We
have reversed the Panel's finding of financial contribu tion, but nevertheless found that the payments and other
support provided under the NASA procurement contracts constitute financial contributions within the meaning
of Article 1.1(a)(1) of the SCM Agreement. Our finding that the NASA pr ocurement contracts conferred a
benefit is not based on the Panel's financial contribution finding, or on the Panel's conclusion that Boeing was
the principal beneficiary and user of the research conducted under the NASA procurement contracts.
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642. Second, we have difficulties with the Panel's reasoning about the market benchmark. With
respect to both the NASA procurement contracts a nd the USDOD assistance instruments, the Panel
stated its view that "no commercial entity, i. e. no private entity acting pursuant to commercial
considerations, would provide payments (and access to its fac ilities and personnel) to another
commercial entity on the condition that the other entity perform R&D activities principally for the
benefit and use of that other entity."
1332 The Panel added that "{a}t a minimum, it is to be expected
that some form of royalties or repayment would be required in the event that financial contributions
were provided on such terms."1333 The Panel's finding as to the behaviour of a market actor was based
exclusively on the Panel's own view of how a comme rcial actor would behave and its inferences as to
what a rational investor would do. The Panel did not indicate what evidence there was on the record
to sustain its view that a private entity acting pursuant to commercial considerations would not
provide payments (and access to its facilities and/or personnel) to another commercial entity where
this other entity performs R&D activities principall y for its own benefit and use, and that, at a
minimum, it would be expected that some form of royalties or repayment would be required.1334
643. It is possible that the Panel believed that its view represented common sense, or its own
conception of economic rationality. If this were i ndeed the case, we would nevertheless consider the
Panel's approach unsatisfactory. We do not believe that panels can base determinations as to what
would occur in the marketplace only on their own intuition of what rational economic actors would
do. We recognize that a panel confronted with a measure of the kind at issue here may have intuitions
as to the consistency of the measure wi th the market, based on economic theory.
1335 However, we
would expect that in such circumstances the pane l would at least explain the economic rationale or
theory that supports its intuition. The Panel in th is case did not do so. More importantly, we are of
the view that a panel should test its intuitions em pirically, especially where the parties have submitted
evidence as to how market actors behave. Indeed , in this case, both the European Communities and
the United States submitted evidence as to how research transactions between two market actors are
structured.1336 Yet, while the Panel referenced some of that evidence in its summary of the parties'
arguments, it did not discuss this evidence in its reasoning.

1332Panel Report, paras. 7.1039 (NASA) and 7.1184 (USDOD).
1333Panel Report, paras. 7.1039 (NASA) and 7.1184 (USDOD).
1334In paragraph 41 of its additional memorandum follo wing the first session of the oral hearing, the
United States argues that the Panel er red by "providing no support for its assertion that no market actor would
enter into the theoretical transaction".
1335The United States observes that, "if a Panel finds that a financial contribution is economically
irrational, it may, absent evidence to the contrary, conclude that the transaction confers a benefit."
(United States' other appellant's submission, para. 121)
1336This evidence is discussed infra, paras. 650-660.
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644. During the interim review stage, the European Communities went so far as to urge the Panel
to address this evidence, and the Panel still refused to do so. The Europ ean Communities requested
that the Panel note that the European Commun ities "did, in fact, present such benchmark
evidence".
1337 The European Communities suggested that the Panel add a footnote to its Report that
would read: "Although it was not necessary for the European Communities to present benchmark
evidence, it did supply such evidence to the Pa nel (e.g. The Declaration of Regina Dieu
(Exhibit EC-1178))".1338 The Panel declined the request because it considered the change
"unnecessary", given that the European Communities' arguments regarding the Regina Dieu
Declaration were already reflected in the summa ry of its arguments (current paragraph 7.1030).
1339
We do not see the basis upon which the Panel considered that it could arrive at a finding as to what
would occur in the market based merely on its ow n views, while failing to engage with the evidence
about the market that was submitted by the European Communities and the United States. We believe
that, to the contrary, the Panel could not have arrived at a conclusion as to whether a benefit was
conferred within the meaning of Ar ticle 1.1(b) without empirically t esting the views that it had about
the market on the basis of the evidence submitted by the parties pertinent to relevant market
benchmarks.
1340
645. Linked to the above discussion, we have furthe r difficulties with the Panel's treatment of the
evidence. As noted in the excerpt quoted above, the Panel stated that "it was not necessary for the
European Communities to present benchmark evid ence of the terms and conditions of specific
market-based R&D financing in order to establish, at least on a prima facie basis, that these NASA
transactions conferred a benefit upon Boeing." 1341 The Panel did not explain how it reached the
conclusion that the European Communities had established a prima facie case that the transaction
would not take place in the market (for example, by referring to evidence on record of what was the
prevailing commercial practice or otherwise reflects a market behaviour). Furthermore, as noted

1337Panel Report, para. 6.53.
1338Panel Report, para. 6.53.
1339Panel Report, para. 6.55. The United States ob jected to the European Communities' request,
arguing:
The United States submits that the In terim Report already reflects the full
argument and evidence submitted by the European Communities, including
a reference to the Declaration of Regina Dieu, in paragraph 7.1029. As this
evidence played no role in the Panel's findings, the United States does not
consider that an additional referen ce to Ms. Dieu, as requested by the
European Communities, is either necessary or appropriate. Moreover, the
particular text proposed by the European Communities would suggest that
the Panel had found that the evidence submitted by the
European Communities constituted a "benchmark". The United States
submits that the Panel made no such finding.
(Ibid., para. 6.54 (footnote omitted))
1340See Appellate Body Report, Canada – Aircraft, para. 157.
1341Panel Report, paras. 7.1039 and 7.1184.
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above, the Panel explained that "it would fall upon the United States, if it wished to rebut this
prima facie case, to identify examples of transactio ns in which commercial entities have paid other
commercial entities to perform R&D on these terms, i. e. to perform R&D that is principally for the
benefit or use of the entity receiving the funding."
1342 The Panel added that "{t}he United States has
not provided any evidence or examples of commercia l transactions in which one entity pays another
entity to conduct R&D that is principally for the benefit and use of the entity receiving the
funding."1343 However, like the European Communities, the United States had provided evidence of
market transactions. The United States certainly had the burden of demonstrating any factual
assertions that it had made and to rebut a prima facie case. Yet, the Panel's reasoning does not reveal
that the Panel engaged with the evidence submit ted by the parties, and does not spell out the
evidentiary basis for its conclusion that a benefit had been conferred.
646. In addition to the concerns we have expressed above about the Panel's approach, we are not
persuaded that, a priori, it can be excluded that two market actors would enter into a transaction with
each other in circumstances where the returns are unequally distributed between them. Transactions
between market actors may take place even when th e returns earned by each party are asymmetric, as
long as both parties earn a reasonable return on the investment. 1344 Thus, it may not always be the
case that a market actor would refuse to enter into a R&D project if the fruits of the research (which
provide a reasonable return on the investment) are not distributed between the parties in an exact
proportion to their contributions to the project. In general, how the costs and revenues are divided
between the parties to a transaction will depend on, among other things, the bargaining strength of the
parties and the alternatives available to the partie s in the event that the transaction were not to
proceed. A market actor could accept a situation where it contributes half of the cost but obtains less
than half of the returns, because the altern atives available to that actor would be worse.
1345 In sum,
there is no presumption as to whether the returns on an investment in the market are evenly
distributed.
647. We have explained earlier that the assessment of benefit requires a comparison with a market
benchmark. Our discussion above has identified sever al flaws in the Panel's approach and in its
reasoning concerning the market benchmark. These flaws mean that the Panel did not make a proper
comparison of the terms of the NASA procurement contracts and the USDOD assistance instruments

1342Panel Report, paras. 7.1039 and 7.1184.
1343Panel Report, paras. 7.1039 and 7.1184.
1344See J. Watson, Strategy, 2nd edn (W.W. Norton & Company, 2007), pp. 203-228; and R. Serrano,
"Bargaining", in The New Palgrave Dictionary of Economics , 2nd edn, S.N. Durlauf and L.E. Blume (eds)
(Palgrave Macmillan, 2008).
1345In some circumstances, the alternative could be that the project is not pursued at all and thus there
would be no fruits from the collaboration to share.
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with the terms of a market transac tion as required under Article 1.1(b).
1346 In the light of this, the
Panel's reasoning as to whether the payments and support provided to Boeing under the NASA
procurement contracts and the USDOD assistance instru ments conferred a benefit within the meaning
of Article 1.1(b) of the SCM Agreement cannot be sustained.
648. The European Union requests that, if we find that we must "identify a market benchmark", we
do so based on the uncontested evidence on record. 1347 It submits that, on the basis of this evidence,
"the Appellate Body can easily find that the NASA R&D contracts and {US}DOD assistance
instruments confer benefits on Boeing, as tho se NASA and {US}DOD transactions (unlike the
EU benchmarks) are for the principal benefit and u se of the recipient of the funds (i.e., Boeing), and
do not require transferring the proceeds of this benefit back to NASA and {US}DOD through, e.g.,
royalties or repayment."1348
649. We have found above that the Panel's appr oach and reasoning were not based on a proper
market benchmark. Before the Panel, the European Communities and the United States had submitted
evidence and exchanged arguments on the proper market benchmark. 1349 In the past, the Appellate
Body has been able to complete the analysis where there were suffi cient factual findings by the panel
or undisputed facts on the record to enable it to do so.1350
650. The European Communities argued before the Pa nel that, in a commercial transaction, one
entity will pay another entity to conduct R&D only if it can obtain the full rights to the resulting
technology.
1351 In support of this argument, the Euro pean Communities submitte d a declaration by
one of Airbus' attorneys, which states:
When Airbus fully funds R&D, or purchases engineering product
design work from a supplier, Airbus exclusively and solely owns all
foreground intellectual property ("FI P"). FIP is defined in our
agreements as "any and all Inte llectual Property generated or
acquired by a Party in connection with and during the performance of
any Order under (the) Agreement".1352

1346See Appellate Body Report, Canada – Aircraft, para. 157.
1347European Union's additional memorandum following the first session of the oral hearing, para. 42.
1348European Union's additional memorandum following the first session of the oral hearing, para. 42.
1349See Panel Report, paras. 7.1030, 7.1031, 7.1036, and 7.1176.
1350See Appellate Body Report, US – Section 211 Appropriations Act, para. 352.
1351Panel Report, paras. 7.1030 and 7.1176.
1352Declaration of Regina Dieu, 8 November 2007 (Panel Exhibit EC-1178), para. 4.
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651. In addition, the European Communities submitte d a contract concluded by Boeing with the
National Institute for Aviation Resear ch at Wichita State University.
1353 This contract includes the
following clauses concerning ownership rights over tec hnical work product, inventions and patents,
and works of authorship and copyrights:
Note Number 009 (Ownership of Intellectual Property)
A. Technical Work Product. All technical work product,
including, but not limited to ideas, information, data, documents,
drawings, software, designs, specifications, and processes produced
by or for Seller, either alone or with others, in the course of or as a
result of any work performed by or for Seller which is covered by
this contract will be the exclusive property of Boeing and be
delivered to Boeing promptly upon request.
B. Inventions and Patents. All inventions conceived,
developed, or first reduced to practice by or for Seller, either alone or
with others, in the course of or as a result of any work performed by
or for Seller which is covered by th is contract, and any patents based
upon such inventions (both dome stic and foreign), will be the
exclusive property of Boeing. ...
C. Works of Authorship and Copyrights. All works of
authorship (including, but not limited to, documents, drawings,
software, photographs, video tapes, sound recordings and images)
created by or for Seller, either alone or with others, in the course of
or as a result of any work performed by or for Seller which is covered
by the contract, together with all copyrights subsisting therein, will
be the sole property of Boeing. …
1354
652. The European Communities also referred to an article on intellectual property rights and stem
cell research 1355, an Article on collaborative research 1356, and a training course of the World
Intellectual Property Organization ("WIPO"). 1357 Referring to the article on stem cell research, the

1353The European Communities subsequently submitted four contracts between "commercial for-profit
entities" and entities other than Airbus and Boeing. According to the European Communities, in these contracts,
title to the intellectual property was allocated to the firm commissioning the research. (See
European Communities' response to Pa nel Question 323; and the followin g four Panel Exhibits: Contract
Number SHB 98001 of 31 January 1998 between SPACEHAB, Inc. and RSC-Energia (Panel Exhibit EC-1415);
Development and Supply Agreement of 1 October 1997 between Thermage, Inc. and Stellartech Research
Corporation (Panel Exhibit EC-1416); Development Agreement of 27 July 1998 between Cox Interactive
Media, Inc. and LookSmart, Ltd. (Panel Exhibit EC-417); and Development Agreement of 25 April 1994
between Applied Analytical Industries, Inc., and GenerEst, Inc. (Panel Exhibit EC-1418))
1354Contract between Boeing Commercial Airplane Group Wichita Division and Wichita State
University, Contract No. 000051728, 4 November 2002 (Panel Exhibit EC-1231).
1355S.M. O'Connor, "Intellectual Property Rights and Stem Cell Research: Who Owns the Medical
Breakthroughs?" (2005) 39 New England Law Review 665 (Panel Exhibit EC-1212), p. 669.
1356R. Cooper Dreyfuss, "Collaborative Research : Conflicts on Authorship, Ownership and
Accountability" (2000) 53 Vanderbilt Law Review 1161 (Panel Exhibit EC-1228), p. 1212.
1357WIPO-MOST, "Intermediate Training Course on Practical Intellectual Property Issues in Business",
13 November 2003 (Panel Exhibit EC-1229), pp. 42-43.
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European Communities noted that, "in a commercial transaction, one entity will pay another entity to
conduct {R&D} only if it intends to actually utilize the r esearch to some end, i.e. if it can obtain the
full rights to the resulting technology".
1358 The article on collaborative research states that
"exclusivity {of ownership over i nventions} is so important, invest ors often want it assured before
significant costs are incurred".1359
653. In response to the evidence submitted by th e European Communities, the United States did
not contest that this evidence indicates that th ere were market transactions in which the entity
commissioning the R&D obtained ownership of all intellectual property rights. 1360 The United States,
however, argued that the "market does not dictate a single outcome in the negotiation of intellectual
property rights", and introduced evidence of allege d market transactions showing more "diversity in
the disposition of rights". 1361 This evidence is summarized belo w. For purposes of completing the
analysis, we proceed below as if the Panel had tr eated the evidence submitted by the United States as
accurate and probative. 1362 Thus, we will seek to determine whether the evidence submitted by the
United States shows that the disposition of intellectual property rights under the NASA/USDOD
measures at issue is consistent with what occurs in transactions between two market actors. In other
words, we consider whether the Panel, even if it had treated the evidence submitted by the
United States as accurate and probative, would have concluded that the NASA/USDOD measures at
issue are not consistent with transactions between two market actors.
654. The United States initially submitted four contracts between Boeing and "major research
universities"1363 in which the former pays the latter to co nduct R&D. We discuss these four contracts
in more detail below. Because the contents of the contracts are BCI, some of the text in our
discussion has been deleted, as indicated by [***].

1358Panel Report, para. 7.1030 (referring to European Communities' second written submission to the
Panel, para. 376, in turn referring to O'Connor, supra, footnote 1355, p. 669).
1359Cooper Dreyfuss, supra, footnote 1356, p. 1212. As for the WIPO training course, one PowerPoint
slide advises that special care must be taken when outsour cing R&D, particularly by ensuring that "all persons
involved {in the R&D activities} sign an agreement whereby they give the company sufficient rights to the
results of their works". Another slide recommends that companies ensure that when persons that are not
employees of the company participate in an R&D project, those persons "transfer any and all rights to the results
of the project to the company". (WIPO-MOST, supra, footnote 1357, slides 42 and 43, respectively)
1360United States' comments on the European Communities' response to Panel Question 323, para. 45.
1361United States' comments on the European Communities' response to Panel Question 323, para. 45.
1362This approach is analogous to the approach adopted by the Appellate Body in EC and certain
member States – Large Civil Aircraft. (See Appellate Body Report, EC and certain member States – Large Civil
Aircraft, paras. 925-929, 1175, 1178, and 1180-1202)
1363Panel Report, para. 7.1036.
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655. [

1364 (underlining added)

1365
(underlining added)
[ 1366
 * * * 1367
 ] . 1368
656. Under US law and the NASA procurement contracts and USDOD assistance instruments, the
commissioning party (NASA or the USDOD) does not obtain ownership rights over the intellectual
property developed as part of the work conducted unde r those contracts and assi stance instruments.
Instead, the Panel found that "Boeing, as the contractor , retained rights to any inventions (i.e. patent
rights) that it conceived of in the course of performing research funded by NASA". 1369 A similar
finding was made by the Panel with respect to the USDOD assistance instruments.1370 [

1364Contract A–Sponsored Research Agreement #2001-ME-SSG betw een {name of counterparty
deleted from exhibit} and The Boeing Company, 1 July 2001 (Panel Exhibit US-1208 (BCI)), section 5.1.
1365Contract B–General Terms Agreement between The Boeing Company and {name of counterparty
deleted from exhibit}, 5 December 2003 (Panel Exhibit US-1209 (BCI)), section 8.1.
1366Contract C–General Terms Agreement between Boei ng and {name of counterparty deleted from
exhibit}, 30 June 2004 (Panel Exhibit US-1210 (BCI)).
1367Contract D–Framework Agreement between {name of counterparty deleted from exhibit} and The
Boeing Company, 1 December 2003 (Panel Exhibit US-1211 (BCI)), section 6.2: "[ ***
 *** ]".
1368Contract B–General Terms Agreement between The Boeing Company and {name of counterparty
deleted from exhibit}, 5 December 2003 (Panel Exhibit US-1209 (BCI)), section 8.1.
1369Panel Report, para. 7.1024.
1370See Panel Report, para. 7.1149.
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657. [

1371

1372 ] :

1373 (footnotes omitted)

1371Contract D, supra, footnote 1367 (Panel Exhibit US-1211 (BCI)), section 6.3.1.
1372Panel Report, paras. 7.1024 and 7.1276; see also para. 7.1149.
1373Panel Report, para. 7.1286 (referring to Europ ean Communities' first written submission to the
Panel, para. 813 (referring to United States Code , Title 35, section 202(c)(4) (Panel Exhibit EC-558); and
United States Code of Federal Regulations, Title 48, section 27.302(c) (Panel Exhibit EC-559)).
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658. In response to the Panel's third set of qu estions, the United States submitted two other
contracts, identified as contracts E and F.
1374 The United States asserted that these two contracts were
between Boeing and for-profit entities.1375 [

1376
 1377

1378]
659. [

1379

1380

1374Panel Exhibits US-1342 (BCI) (Contract E) and US-1343 (BCI) (Contract F).
1375As with the other contracts, the names of Boeing's counterparties have been deleted.
1376Panel Exhibit US-1342 (BCI) (Contract E), para. 1.
1377Panel Exhibit US-1342 (BCI) (Contract E), para. 8.2.
1378Panel Exhibit US-1342 (BCI) (Contract E), para. 8.5.
1379Panel Exhibit US-1343 (BCI) (Contract F), section 4.3.
1380Panel Exhibit US-1343 (BCI) (Contract F), section 4.3.
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1381

1382

660. In sum, even assuming that the Panel had treated the contracts submitted by the United States
as evidence of transactions that o ccur on the market as accurate and probative, they show several
important differences compared to the NASA procurement contracts and USDOD assistance
instruments. [

1381Panel Exhibit US-1343 (BCI) (Contract F), section 4.3.
1382Panel Exhibit US-1343 (BCI) (Contract F), sections 4.3.1.3(c) and 4.3.2.3(c).
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661. Indeed, US law constrains NASA's and the US DOD's ability to negotiate ownership over any
intellectual property developed under the relevant c ontracts and agreements. We explain in Part VII
that, pursuant to the Bayh-Dole Act of 1980, th e 1983 Presidential Memorandum, the 1987 Executive
Order, and the relevant general and NASA-speci fic federal regulations, neither the USDOD nor
NASA will seek to obtain title to any inventions discovered as part of the work conducted under the
NASA procurement contracts and USDOD assistance inst ruments. Rather, it is expected that the
contractor (Boeing) will obtain ownership over the in tellectual property rights. The contractor also
owns "all technical data (i.e. data rights) produced with U.S. government funding, and may use these
for {its} own commercial purposes".
1383 Thus, in effect, the allocation of intellectual property rights
is pre-determined under the US legal framework. 1384 Put differently, there is no bargaining over the
ownership of the intellectual property. 1385 Whereas, in a transaction between two market actors, the
party undertaking the research would have to bargai n to obtain ownership of any intellectual property,
firms that enter into contracts or agreements w ith NASA and the USDOD need not bargain at all over
intellectual property rights because they can expect to obtain ownership under the prevailing US legal
framework.1386 NASA and the USDOD are thus constrained by US law as to the gains that they can
extract from the transaction. Meanwhile, the part y undertaking research commissioned by NASA or
the USDOD—in this case, Boeing—obtains ownership ri ghts over intellectual property that it would
otherwise have had to bargain for if the counterparty were a market actor.
662. We recall that the determination of "benefit" under Article 1.1(b) of the SCM Agreement
seeks to identify whether the financial contribution has made "the recipient 'better off' than it would
otherwise have been, absent that contribution". 1387 Moreover, the Appellate Body has said that "the
marketplace provides an appropriate basis for compar ison in determining whether a 'benefit' has been

1383Panel Report, para. 7.1296.
1384In response to a question from the Panel, the United States asserted that the USDOD "does not
decide who will own the patent to an invention made under a {USDOD} contract. The policy set out in the
1983 Presidential Memorandum and effectuated through {USDOD's} regulations decides that question, and
provides that the rights are split between the government and the contractor in accordance with chapter 38 of
title 35 of the U.S. Code—the Bayh-Dole rule". (United States' response to Panel Question 22(b), para. 69
(footnote omitted))
1385As we explain infra, para. 664, there may be bargaining over the scope of the government licence in
the sense that the government may accept a more limited licence to use the data produced as part of the research
if the contractor co-funds the project.
1386To the extent that NASA and the USDOD obtain a licence for governmental use, they are required
by US law to ensure that such government use does not interfere with Boeing's commercial use of the R&D.
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'conferred', because the trade-distorting potential of a 'financial contribution' can be identified by
determining whether the recipient has received a 'financial contribution' on terms more favourable
than those available to th e recipient in the market."
1388 As we have discussed above, even assuming
that the evidence submitted by the United States is accurate and uncontested, the allocation of
intellectual property rights in the examples of market transactions on record has been more favourable
to the commissioning party and less favourable to the commissioned party than under the NASA
procurement contracts and USDOD assistance instrume nts before us. This evidence thus indicates
that transactions in the market r esult in an equilibrium that is mo re favourable to the commissioning
party than in the measures before us. In ot her words, Boeing obtained more and NASA and the
USDOD obtained less than they would have obtained in the market. In our view, this conclusion is
sufficient to establish that the provision by NASA and by the USDOD of funding and other support to
Boeing on the terms of the joint venture arrangements that are before us conferred a benefit on Boeing
within the meaning of Article 1.1(b) of the SCM Agreement.
663. We note that one of the salient features of the assistance instruments is that the USDOD and
Boeing jointly fund the research projects and share, to some extent, the results of the research. 1389 In
its appeal, the United States emphasizes that the fund s provided by Boeing to this research must be
considered in the determination of benefit.1390 These are features of the USDOD measures that should
be taken into account in identifying a market benchmark against which to compare those measures for
purposes of determining whether a benefit has been conferred. 1391 Moreover, we note that any
monetary contribution made by the recipient to a joint research project affects the net value obtained
by the firm from the project. If the contribution of the recipient firm to the project is neglected, there
is a risk of overestimating the value obtained by the firm from the project and, hence, a finding of
benefit could be made where a benefit did not in fact exist.
664. The Panel Report does not indicate that the Pane l considered Boeing's monetary contribution
in its assessment of whether the USDOD assistance in struments conferred a benefit. The Panel,
however, made other findings th at do not support the proposition that Boeing's contribution to the
project meant that no benefit was conferred. As part of its analysis of financial contribution, the Panel
found that the scope of the government licence ove r data rights varied when both Boeing and the

1389The European Union does not dispute that Boeing provided part of the funding of the projects
undertaken pursuant to the USDOD assistance instruments. (European Union's response to questioning at the
oral hearing)
1390The United States recognized before the Panel th at "under some circumstances … cost sharing
arrangements can and do confer a benefit to the private party". (United States' response to Panel Question 194,
para. 240)
1391We have explained in section VI.A that, under the USDOD assistance instruments, the USDOD and
Boeing both make monetary contributions and share the outcomes of the research.
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USDOD contributed funding to the project.
1392 More specifically, the Panel found that the
government received only "limited rights" to the data under the assistance instruments (which were
cost-sharing transactions), as opposed to the "unlim ited rights" to the data that the government
receives under USDOD procurement contracts (where there was no cost-sharing). 1393 Thus, according
to the Panel's description, Boeing' s monetary contribution to the r esearch project is not tied to the
ownership rights over any inventions and data, which results from the operation of US law. Rather,
Boeing's monetary contribution is consideration for the enhanced data rights that it obtains under the
assistance instruments, which grant more limited right s to the government over the data. In the light
of the Panel's finding, it is therefore clear that Boeing's monetary contribution under the assistance
instruments does not change the bargain over the ownership of the invent ions and data, it only
changes the bargain as to the government's licence over the data rights.
665. The United States also argues that the USDOD opened each of the assistance instruments to
competitive bidding and that, if Boeing had been seeki ng non-market terms for its participation in the
research, one of the USDOD's other suppliers of aeronautics research would have bid less. 1394 This
argument, however, fails to recognize the fact that ownership of any intellectual property is not open
to bidding; it is determined by US law. Becau se each bidder knows in advance that this particular
aspect of the transaction will not be altered with r espect to its competitors, ownership of any resulting
intellectual property will not be a determinative element in how each bidder structures its proposals.
666. For these reasons, we find that the funding and other support provided under the NASA
procurement contracts and the USDOD assistance in struments conferred a benefit on Boeing within
the meaning of Article 1.1(b) of the SCM Agreement.
C. Scope of the Panel's Benefit Findings as regards the NASA Measures
667. We move to the United States' claim that the Pa nel erred "by basing its valuation of the total
benefit conferred by NASA research contracts on a combination of transactions covering not only
'LCA-related research' challenged by the {European Communities}, but also other transactions that
the {European Communities} did not challenge". 1395 In particular, the United States complains that
the Panel did not exclude $280 million in expenditu res for research that NASA had determined was
"unrelated"1396 to the European Communities' claims. Th e United States characterizes this "omission"

1392Panel Report, para. 7.1149.
1393Panel Report, paras. 7.1149 and 7.1150.
1394United States' oral statement at the first session of the oral hearing.
1395United States' other appellant's submission, para. 66.
1396United States' other appellant's submission, para. 66.
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as an "error inconsistent with Article 1.1(b) becau se it treats transactions that were not part of the
financial contribution under Article 1.1(a) as conferring a benefit".
1397
668. The Panel's findings are summarized in subsec tion 1. In subsection 2, we address the
European Union's contention that the United States' claim is outside the scope of this appeal because it
was not properly identified in the United States' Notice of Other Appeal. We then examine the
United States' allegation of error in subsection 3.
1. The Panel's Findings
669. The Panel began its analysis of this claim by reviewing the United States' evidence regarding
the maximum amount of payments made to Boei ng for aeronautics R&D over the period 1989-2006.
The Panel noted that the United States had explai ned that NASA had taken the following steps to
arrive at its estimate of the amount of disburse ments it had made to Boeing: (i) identifying the
relevant contracts with Boeing that were awarde d under the eight R&D programmes at issue between
1989 and 2006 through a search of the Federa l Procurement Data Base ("FPDS"/"FPDS-NG") 1398 of
all awards made to Boeing for the relevant period; (ii) eliminating awards that "clearly did not pertain
to any NASA Aeronautics programs, such as those related to manned space flight, the International
Space Station or space science" 1399; and (iii) calculating the amounts disbursed to Boeing for each
such contract from disbursement information obtai ned from NASA's internal financial databases that,
prior to 2004, accumulated data, performed checks, and then fed the information into the FPDS.1400
670. The Panel observed that "{t}he first, and most important, step in the elimination process was
to identify awards issued by NASA research centers that perform aeronautics research". 1401 In thi s
regard, the United States explained that NASA conducts all of its research activities at nine research
centres, and that four of those centres (Langl ey Research Center, Glenn Research Center, Ames
Research Center, and Dryden Research Center) ar e responsible for all aeronautics research conducted
by NASA. These four research centres administer the eight R&D programmes at issue in this dispute
and perform all aeronautics research requir ed in support of NASA's other programmes. 1402 The Panel
took note of the United States' argument that, "{b}ecause the FPDS record for each award contains a
code that indicates the center that awarded the in strument in question, NASA was able to filter the

1397United States' other appellant's submission, para. 66.
1398For the years 2004 to 2006, the relevant database was the Federal Procurement Data Base – Next
Generation (FPDS-NG), which had superseded the Federal Procurement Data Base (FPDS). (Panel Report,
para. 7.1058)
1399United States' response to Panel Question 7, para. 14.
1400Panel Report, para. 7.1058.
1401Panel Report, para. 7.1062.
1402Panel Report, para. 7.1062.
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FPDS list of Boeing contracts to remove all contracts awarded by the five NASA research centers that
do not perform aeronautics research."
1403 The Panel further noted that the second part of the
elimination process involved eliminating contracts th at, "although awarded by one of the four NASA
research centers that perform aeronautics resear ch, nevertheless pertained to non-aeronautics
research".1404
671. The Panel noted that it had sought an explan ation from the United States as to how the Panel
could be satisfied that "the information subm itted ... as to the universe of R&D contracts and
agreements between NASA and Boeing {was} accurat e and complete", and that the United States
responded that NASA had conducted a "verification exercise". 1405 The value of the contracts
identified in the verification exercise was "appr oximately $116 million higher than the value of
contracts reported by the United States at paragrap h 212 of its first written submission"; a difference
that the United States considered was "not significant".1406
672. The Panel then turned to certain criticisms by the European Communities concerning the
scope of transactions included in the United States' estimate. 1407 In particular, the
European Communities criticized that the estimate (i) excluded payments made to Boeing as a
subcontractor, and (ii) did not include the value of goods and services provided to Boeing through the
Space Act Agreements. The Panel considered that both criticisms were "without foundation".1408 The
Panel also addressed the European Communities' ar guments as to the completeness of the relevant
contract data set and its allegation that "the FPDS/FPDS-NG database is a flawed and unreliable
source for identifying the contracts between NASA and Boeing". 1409 The Panel, however, was not
persuaded that the evidence supported the European Communities' contentions in this regard. Next,
the Panel addressed the European Communities' allega tion that the United States had failed to include
four relevant contracts between NASA and Boeing in the list of contracts that formed the basis for the
United States' disbursement estimate. The Panel noted the United States' explanation that one of the
contracts in question was included in the list but w as "mislabelled as a different contract", and that,
although "the other three contracts were 'apparently missed in the initial analys is', they were captured

1403Panel Report, para. 7.1062.
1404Panel Report, para. 7.1063.
1405Panel Report, para. 7.1065.
1406Panel Report, para. 7.1069. (footnote omitted)
1407Panel Report, para. 7.1070.
1408Panel Report, para. 7.1070.
1409Panel Report, para. 7.1072 (referring to European Communities' response to Panel Question 173(b),
para. 301).
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in the calculation of the 'maximum value' of Bo eing contracts" in the United States' verification
exercise.
1410
673. At this point, the Panel recalled that the Un ited States had explained that, once contracts
issued by NASA facilities that conduct no aeronautics research were filtered out of the "all Boeing
contracts" data set, there were only $1.05 billion in contracts remaining for the 1989-2006 period that
were potentially related to the European Comm unities' claims regarding aeronautics research. 1411 The
Panel noted that the European Communities had not criticized this aspect of the United States'
methodology for identifying the relevant contracts. 1412 It also took note of the United States'
confirmation that, as a factual matter, "all contracts that are related to the European Communities'
challenges … must have been awarded by the f our NASA centers … that are responsible for all
aeronautics research conducted by NASA and cannot have been awarded by any other NASA center
or unit".
1413
674. Lastly, as regards the accuracy of the disbursement information relating to each of the
identified contracts, the Panel noted that the Eu ropean Communities had not challenged the use of
"disbursements" data as a close approximation of the amount of "payments" made to Boeing under the
research contracts.1414 The Panel observed, however, that the European Communities had challenged
the "reliability of NASA's 'financial databases', which presumably included the {NASA Procurement
Management System} and the SAP/BW{ 1415} systems that were the source of the disbursements
data".1416 Nonetheless, the Panel was not persuade d that "the European Communities ha{d}
adequately supported its allegations that NASA's fi nancial databases {were} unreliable for purposes
of estimating the value of NASA's R&D subsidies to Boeing".1417
675. The Panel concluded that, although it was clear that "NASA ha{d} made mistakes in
compiling the relevant information, and that NASA's records are not perfect" 1418, the
European Communities had not demonstrated th at the United States' estimate involved any
methodological errors. The Panel therefore estimated that the total amount of payments to Boeing

1411Panel Report, para. 7.1076 (referring to United St ates' responses to Panel Question 179, para. 180
and Panel Question 188, para. 219).
1412Panel Report, para. 7.1076 (referring to Europe an Communities' comments on the United States'
responses to Panel Questions 179 and 188).
1413Panel Report, para. 7.1076 (referring to United States' response to Panel Question 339, para. 82).
1414Panel Report, para. 7.1080.
1415SAP Business Information Warehouse (BW).
1416Panel Report, para. 7.1080.
1417Panel Report, para. 7.1080.
1418Panel Report, para. 7.1081.
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through R&D contracts under the eight NASA R&D programmes over the period 1989-2006 was
$1.05 billion.
1419
676. As regards the value of the access to NASA fa cilities, equipment, and employees provided to
Boeing, the Panel noted that the United States had in itially tried to estimate this value by tabulating
the information in certain Space Act Agreements entered into between NASA and Boeing. The Panel,
however, identified two limitations in this informati on. First, the United States had only been able to
tabulate information from 21 of the 38 known Sp ace Act Agreements between NASA and Boeing. 1420
Second, the United States had not accounted for the value of the access to facilities, equipment, and
employees provided by NASA to Boeing "in conjunction with" the procurement contracts.1421
677. In the light of these "limitations in the inform ation available", the United States advanced an
"alternative" methodology.1422 The United States proposed that th e Panel use Boeing's share of total
payments made to all of NASA's R&D contractors, partners, and grantees to estimate the maximum
value of the facilities, equipment, and employees provided by NASA to Boeing. 1423 The Panel
accepted the United States' argument that, "if Boeing received only 10.4 per cent of payments made to
all programme participants, there is no basis for a llocating to Boeing more than 10.4 per cent of the
total costs incurred by NASA in maintaining and providing facilities, equipment and employees for
aeronautics R&D."
1424
678. Even though the Panel accepted the United Stat es' general approach, it disagreed with the
value of the payments from NASA to Boeing that the United States used to derive the share of
Boeing's payments. The United States used the figure $775 million, which resulted in Boeing having
received 10.4% of NASA's overall payment under the eight R&D programmes. The Panel, however,
pointed out that it had estimated that the total amount of payments to Boeing to be $1.05 billion. The
Panel further explained that using the $1.05 billi on figure "{led} to the conclusion that Boeing
received 14 per cent, not 10.4 per cent, of payments made to programme participants". 1425 Based on
this share, the Panel then estimated "the valu e of the free access to facilities, equipment and
employees under the eight R&D programmes at issue {to be} $1.55 billion".1426

1419Panel Report, para. 7.1081.
1420Panel Report, para. 7.1093.
1421Panel Report, para. 7.1093.
1422Panel Report, para. 7.1094.
1423Panel Report, paras. 7.1094 and 7.1095.
1424Panel Report, para. 7.1096. The Panel noted that "the European Communities itself sought to
estimate the value of NASA 'facilities, equipment and employees' to Boeing based on Boeing's share of NASA
funding." (Ibid.)
1425Panel Report, para. 7.1099.
1426Panel Report, para. 7.1099.
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2. Is the United States' Claim Properly within the Scope of This Appeal?
679. We begin with the European Union's contention th at the United States' claim is not within the
scope of this appeal because the United States fail ed to identify in its Notice of Other Appeal "any
alleged errors by the Panel under Article 1.1(b) of the SCM Agreement in valuing the benefit to
Boeing from the NASA aeronautics R&D programmes, or reference any of the relevant paragraphs of
the Panel Report"1427, in accordance with Rule 23(2) of the Working Procedures.
680. Pursuant to Rule 23(2) of the Working Procedures, a Notice of Other Appeal shall include,
inter alia, the following information:
(i) a statement of the issues raised on appeal by another
participant with which the party joins; or
(ii) a brief statement of the nature of the other appeal, including:
(A) identification of the alle ged errors in the issues of
law covered in the pa nel report and legal
interpretations developed by the panel;
(B) a list of the legal provision(s) of the covered
agreements that the panel is alleged to have erred in
interpreting or applying; and
(C) without prejudice to the ability of the other appellant
to refer to other paragraphs of the panel report in the
context of its appeal, an indicative list of the
paragraphs of the panel re port containing the alleged
errors.
681. The Appellate Body has explained that Notices of Appeal and Other Appeal do not only serve
the purpose of initiating an appeal. The additional requirements under Rule 20(2), and similarly those
under Rule 23(2), of the Working Procedures "serve to ensure that the appellee also receives notice,
albeit brief, of the 'nature of the appeal' and the 'allegations of errors' by the panel". 1428 The Appellate
Body has elaborated on the requirements of a Notice of Appeal as follows:
The Working Procedures for Appellate Review enjoin the appellant to
be brief in its notice of appeal in setting out "the nature of the appeal,
including the allegations of errors". We believe that, in principle, the
"nature of the appeal" and "the alle gations of errors" are sufficiently
set out where the notice of appeal adequately identifies the findings
or legal interpretations of the Pa nel which are being appealed as
erroneous. The notice of appeal is not expected to contain the reasons
why the appellant regards those findings or interpretations as

1427European Union's appellee's submission, para. 96. (original emphasis; footnote omitted)
1428Appellate Body Report, US – Countervailing Measures on Certain EC Products, para. 62.
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erroneous. The notice of appeal is not designed to be a summary or
outline of the arguments to be made by the appellant. The legal
arguments in support of the allegations of error are, of course, to be
set out and developed in the appellant's submission.
1429 (original
emphasis)
682. In previous appeals, the Appellate Body has also cautioned that, "{i}f an appellee is not
notified of the claims raised by the appellant or other appellant in the Notice of Appeal or Other
Appeal, those claims are not properly within the sc ope of the appeal, and the Appellate Body will not
make findings thereon."1430
683. In paragraph 3 of its Notice of Other Appeal, the United States included the following claim:
The United States seeks review by the Appellate Body of the Panel's
finding that payments made by NASA to Boeing under contracts for
the performance of aeronautics research and facilities, equipment,
and employees provided to Boeing through research contracts and
agreements at issue conferred a benefit. This finding is in error and
is based on erroneous findings on issues of law and related legal
interpretations, including an incorrect interpretation of Article 1.1(b)
of the SCM Agreement.
5
5Panel Report, paras. 7.1037-7.1040 and 8.3.
684. In its other appellant's submission, the Unite d States frames its claim as one involving an
error, under Article 1.1(b) of the SCM Agreement, in the "valuation of the total benefit conferred by
NASA research contracts". 1431 At the oral hearing and in its additional memorandum, the
United States clarified that its claim is that the Pa nel's finding of benefit is overbroad in that it
includes contracts for research into topics that were not part of the European Communities' claim.1432
685. As the European Union points out, the Unite d States' Notice of Other Appeal does not
expressly refer to the "alleged errors … in valuin g the benefit to Boeing from the NASA aeronautics
R&D programmes".1433 Nevertheless, the United States' Notice of Other Appeal refers specifically to
the Panel's finding of benefit with respect to the payments and other support provided under the
NASA contracts and agreements at issue. The Unite d States' allegation to which the European Union
objects is that the Panel's finding of benefit is overbroad because it encompasses NASA R&D

1430Appellate Body Report, EC – Fasteners (China), para. 582 (referring to Appellate Body Report, US
– Countervailing Measures on Certain EC Products , para. 72; Appellate Body Reports, EC – Bananas III
(Article 21.5 – Ecuador II)/EC – Bananas III (Article 21.5 – US), para. 285; and Appellate Body Report, Japan
– Apples, paras. 124-128).
1431United States' other appellant's submission, para. 66.
1432United States' oral statement and responses to ques tioning at the first session of the oral hearing;
United States' additional memorandum following the first session of the oral hearing, para. 35.
1433European Union's appellee's submission, para. 96. (emphasis omitted)
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contracts and agreements not challenged by the Eu ropean Communities before the Panel. In other
words, it is an allegation that the Panel's fi nding of benefit covers NASA R&D contracts and
agreements that were not at issue in the di spute, because the European Communities had not
challenged them. Therefore, we are of the view that paragraph 3 of the Notice of Other Appeal,
particularly the reference to the "contracts and agreem ents at issue", can be read to indicate that the
United States intended to challenge not only the finding of benefit, but also the breadth of that finding.
686. Nonetheless, we must caution that paragraph 3 of the Notice of Other Appeal is drafted at a
level of vagueness and imprecision that makes it c onsiderably difficult for the appellee, the third
participants, and the Appellate B ody to understand easily the full scope of the United States' claim.
Understanding the full scope of an appellant's clai m should not require such effort. Drafting the
Notice of Appeal or Notice of Other Appeal with greater precision reduces the risk of procedural
objections and possible dismissal of a claim because it does not comply with the requirements of
Rule 20 or 23 of the Working Procedures.
687. We also recognize that the paragraphs of the Panel Report cited in the United States' Notice of
Other Appeal do not correspond to the sections of the Panel Report where the Panel made the error
alleged by the United States. The Notice of Othe r Appeal refers to paragraphs 7.1037-7.1040
and 8.3. Paragraphs 7.1037-7.1040 concern the Panel's an alysis of whether the NASA measures
conferred a benefit. Paragraph 8.3 is where the Panel set out its conclusions concerning the
European Communities' claims of adverse effects. The United States' allegations of over-breadth are
directed at the Panel's analysis set out in para graphs 7.1055 through 7.1110 of the Panel Report.
Nevertheless, we recall that Rule 23(2)(c)(ii)(C) of the Working Procedures requires an other
appellant to provide an "indicative list" of the pa ragraph numbers of the panel report containing the
alleged error(s) and that this list is "without prejud ice to the ability of the other appellant to refer to
other paragraphs of the panel report in the context of its appeal". The failure to provide a complete
and accurate list of paragraph numbers covered by the allegation of error is not by itself a basis to
reject a claim.
1434
688. Therefore, we find that the United States' Notice of Ot her Appeal sufficiently identifies the
allegation of error and, consequently, we reject the European Union's argument that the United States'
claim is not properly within the scope of this appeal.

1434See Appellate Body Reports, EC – Bananas III (Article 21.5 – Ecuador II) / EC – Bananas III
(Article 21.5 – US) , paras. 279 and 283, where the Appellate Body refused to dismiss a claim of the
European Communities, even though the Notice of Appeal did not provide a list of the legal provisions of the
covered agreements that the panel was alleged to have erred in interpreting or applying, or an indicative list of
the paragraphs of the panel report containing the alleged errors.
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3. Did the Panel Err under Article 1.1(b) of the SCM Agreement?
689. We recall that the United States' claim is that the Panel did not properly apply Article 1.1(b)
of the SCM Agreement, because the Panel did not exclude from its estimate of the amount of the
subsidy the $280 million in expenditures for research that NASA had determined was "unrelated" to
the European Communities' claims.1435
690. The conferral of a benefit is one of the two elements of the definition of a subsidy in
Article 1.1 of the SCM Agreement. The Appellate Body has explained that "the word 'benefit', as used
in Article 1.1(b), implies some kind of comparison", and that "the marketplace provides an
appropriate basis for comparison in determining wh ether a 'benefit' has been 'conferred', because the
trade-distorting potential of a 'financial contribut ion' can be identified by determining whether the
recipient has received a 'financial contribution' on terms more favourable than those available to the
recipient in the market." 1436 In section VI.B, we reviewed the Pa nel's determination of benefit with
respect to the NASA measures at issue. We ob serve that, having found that the NASA measures
conferred a benefit on Boeing, the Panel did not pr oceed further to estimate the magnitude or amount
of the benefit.1437
691. The Panel then proceeded, in a separate section of its Report, to estimate the "amount of the
subsidy to Boeing's LCA division".1438 The Panel did not explain what exactly was meant by "amount
of the subsidy". It would appear that the estima tion exercise undertaken by the Panel is more closely
related to the concept of financial contribution 1439 under Article 1.1(a)(1) than to the concept of
benefit under Article 1.1(b) of the SCM Agreement. This is because the Panel was seeking to identify
the amount of funds transferred by NASA to Boeing unde r the relevant contracts, as well as the value
of Boeing's access to NASA facilitie s, equipment, and employees. Had the Panel sought to estimate
the amount of the benefit, it would have had to focus on the advantage conferred on Boeing as
compared to what it would have obtained in a market transaction. 1440 We further note that, in

1435United States' oral statement and responses to questioning at the first session of the oral hearing.
1437Panel Report, para. 7.1039.
1438Panel Report, p. 468, subsection VII.D.5(e).
1439This comes out explicitly in paragraph 7.1101 of the Panel Report when, in rebutting an argument
of the European Communities, the Panel stated: "{T}here are two reasons why we shall treat the full amount of
the financial contributions provided to Boeing as a subsidy to Boeing's LCA division". (emphasis added)
1440See section VI.B.2 of this Report.
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explaining its approach, the Panel stated that its an alysis of the amount of the subsidy was "properly
characterized as one part of the serious prejudice analysis".
1441
692. Having reviewed the Panel's analysis that is the focus of the United States' allegations, it
appears to us that the United States' appeal is mi sdirected. Even assuming, for the sake of argument,
that the Panel erred in its calculation of the "amount of the subsidy", it is unclear that this would have
been an error of interpretation or applicati on of "benefit" under Article 1.1(b) of the SCM Agreement.
The specific allegation made by the United States is that the Panel failed to exclude from the amount
of the subsidy certain transactions that NASA ha d determined did not involve research that was
relevant to LCA.1442
693. The United States asserted before the Panel th at NASA disbursements to Boeing under the
challenged programmes amounted to less than $750 million. 1443 The methodology used by the
United States to arrive at this figure was as follo ws. First, the United States identified all of the
contracts that were awarded by NASA to Boeing under the eight R&D programmes at issue during
the period 1989-2006.1444 For this purpose, the United States ran a search in the FPDS/FPDS-NG data
base.1445 Second, from this broad pool of Boeing contr acts, the United States eliminated all contracts
that did not relate to aeronautics research. This was done by identifying the awards issued by the
NASA research centres that perform aeronautics res earch. The United States explained that NASA
conducts all of its research activities at nine research centres, but that only four of those centres
—Langley Research Center, Glenn Research Center, Ames Research Center, and Dryden Research
Center—are responsible for all the aeronautics research conducted by NASA. These four research
centres administer the eight R&D programmes and perform all the aeronautics research required in
support of NASA's other programmes.
1446 This second step yielded a figure of $1.05 billion. 1447 In
the third step, the United States eliminated contracts that, although awarded by one of the four NASA
research centres that perform aeronautics research, nevertheless pertained to non-aeronautics research
(for example, contracts whose subject matter pertained to space, atmospheric science, airspace

1441Panel Report, para. 7.213. Moreover, the Panel considered that the calculation of the amount of the
subsidy was not necessary under Article 1 of the SCM Agreement. The Panel made these remarks in relation to
certain subsidy measures under Washington State House Bill 2294. However, we understand the Panel to have
intended this explanation to apply also with respect to its analysis of the amount of the other subsidies. (Ibid.)
 1442The United States alleges that these expenditures re lated to R&D for space, procurement of goods,
wind turbines and aeroprops, air traffic management, hypersonic flight, vertical take-off and landing/short
take-off and landing, and aircraft support (maintenance and upkeep of NASA's aircraft). (United States' other
appellant's submission, para. 71)
1443Panel Report, para. 7.1057.
1444Panel Report, para. 7.1058.
1445For the period 2004-2006, the United States used the FPDS-NG data base, which superseded
the FPDS.
1446Panel Report, para. 7.1062.
1447Panel Report, para. 7.1076.
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hypersonics, vertical take-off and landing/short take-off and landing, and aircraft support related to
the maintenance and upkeep of NASA's aircraft).
1448 Under this third step, the United States excluded
$280 million in expenditures, resulting in a total value of $775 million between 1989 and 2006.1449
694. The Panel sought further information from the Un ited States to confirm the results of this
exercise and also addressed some of the specific criticisms levelled by the European Communities
against the United States' proposed approach.1450 After reviewing the evidence, the Panel concluded:
It is clear to the Panel that NASA has made mistakes in compiling
the relevant information, and that NASA's records are not perfect
(and as we discuss below, in relation to Space Act Agreements, far
from perfect). However, the European Communities has not
demonstrated that the United States' estimate involved any
"methodological" errors. The Panel therefore estimates that the total
amount of payments to Boeing through R&D contracts under the
eight R&D programmes over the period 1989-2006 was
$1.05 billion.
1451 (original boldface)
695. Thus, the Panel decided to rely on the methodology proposed by the United States and
ultimately accepted the results of the second step of the United States' methodology, that is, the results
of segregating the contracts awarded to Boeing by the four NASA research centres that conduct
aeronautics research. The Panel did not address the third step of the methodology that had been
proposed by the United States, which involved elimin ating the contracts that, despite being awarded
by one of these four NASA research centres that perform aeronautics research, NASA had identified
as not pertaining to aeronautics research. In our vi ew, once the Panel had decided to engage with the
methodological approach and the data provided by the United States, it should not simply have
stopped at the second step without explaining the r easons for not engaging with the third step. The
Panel should have explained why it di sagreed with the third step or why it did not find it probative:
for instance, because the results of the manual revi ew, by NASA personnel, of the descriptions of the
research conducted under each Boeing contract awarde d by the four research centres could not be
verified.
1452
696. Having said that, we note that the Panel's cons ideration of the amount of the subsidy was
eminently a factual exercise that involved scrutin izing factual evidence submitted by the parties and
focused on what was the most appropriate methodol ogy to segregate the contracts that involved

1448Panel Report, para. 7.1063 (referring to United States' response to Panel Question 179, para. 181).
1449Panel Report, para. 7.1068; United States' response to Panel Question 188, para. 223. Some of
these figures have been rounded off, thus the discrepancy when the figures are added up.
1450See Panel Report, paras. 7.1064-7.1080.
1451Panel Report, para. 7.1081.
1452Panel Report, para. 7.1068.
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aeronautics R&D from the other transactions entered into between NASA and Boeing. This kind of
factual assessment falls within a panel's authority as the initial trier of facts and should be reviewed by
the Appellate Body only under Article 11 of the DS U, a claim the United States has not raised with
respect to the Panel's estimate of the amount of the subsidy provided by NASA to Boeing.
697. We note that there is no obligation in the SCM Agreement to quantify the precise amount of
the subsidy for purposes of an adverse effects claim, and the Panel's finding of benefit under
Article 1.1(b) in this case does not depend on the Pa nel's quantification of the amount of the subsidy
provided by NASA. The Appellate Body has previous ly stated that, while the magnitude of a subsidy
may be relevant to the assessment of a claim of ser ious prejudice, a "precise, definitive quantification
of the subsidy is not required" for purposes of a serious prejudice analysis.
1453 In the absence of such
an obligation, it is not clear on what basis the Pane l's reluctance to go further in its calculations could
constitute legal error. Furthermor e, the Panel never purported that its calculations would be precise,
since it indicated that the amount is an estimate.1454
698. The United States additionally submits that th e Panel's error in estimating the amount of
payments made by NASA to Boeing also affected th e value estimated by the Panel for the free access
to facilities, equipment, and employees provided by NASA to Boeing. 1455 The Panel estimated the
amount of the subsidy provided to Boeing's LCA di vision in the form of such free access to be
$1.55 billion over the period 1989-2006. 1456 The Panel's estimation of the value of this access was
based on a methodology proposed by the United States that used Boeing's share of overall payments
made to the eight R&D programme participants to estimate the maximum value of the access to
facilities, equipment, and employees provided by NASA to Boeing. 1457 Although the Panel accepted
the United States' general approach, it disagreed with the value of the payments from NASA to
Boeing that the United States used to derive Boeing's share of the overall payments. The
United States used the figure $775 million, whic h resulted in Boeing having received 10.4% of
NASA's overall payment under the eight R&D programmes at issue. The Panel, however, pointed out
that it had estimated the total amount of payments to Boeing through R&D contracts to be
$1.05 billion. The Panel further explained that usin g the $1.05 billion figure "{led} to the conclusion
that Boeing received 14 per cent, not 10.4 per cent, of payments made to programme participants".
1458

1453Appellate Body Report, US – Upland Cotton, para. 467.
1454See Panel Report, paras. 7.1081, 7.1109, and 7.1110.
1455United States' other appellant's submission, para. 76.
1456Panel Report, para. 7.1109.
1457Panel Report, paras. 7.1094 and 7.1095.
1458Panel Report, para. 7.1099.
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Based on this share, the Panel then estimated "the value of the free access to facilities, equipment and
employees under the eight R&D programmes at issue {to be} $1.55 billion".
1459
699. We agree with the United States that the amount of the subsidy provided through the access to
NASA facilities, equipment, and employees was estimat ed as a function of the value of the payments
that had been estimated by the Panel. The amount of the payments provided by NASA to Boeing
estimated by the Panel ($1.05 billion) was used to derive Boeing's share of the overall payments
(14%). We have declined above to disturb th e Panel's finding as to the estimated amount of the
subsidy provided through the payments made by NA SA to Boeing. As a consequence, there is no
basis for us to interfere with the Panel's estimat e of the value of Boeing's access to NASA facilities,
equipment, and employees.
700. We recall that the United States' claim on appeal is that the Panel erred in the application of
the concept of benefit under Article 1.1(b) of the SCM Agreement because the Panel did not exclude
from its estimate of the amount of the subsidy the $280 million in expenditures for research that
NASA had determined was unrelated to the European Communities' claims.
1460 We have found that
the Panel's consideration of the amount of the subs idy was a factual assessment that fell within the
Panel's authority as the initial trier of facts. The United States, however, did not raise a claim under
Article 11 with respect to the Panel's considerati on of the amount of the subsidy provided under the
NASA measures at issue. We have additionally e xplained above that the United States' appeal is
misdirected, because the Panel did not attempt to estimate the value of the benefit conferred to Boeing
under the NASA measures at issue. Accordingly, we reject the United States' claim that the Panel
erred in estimating the amount of the subsidy pr ovided to Boeing's LCA division pursuant to the
NASA contracts and agreements under the eight R&D programmes at issue to be $2.6 billion over the
period 1989-2006.1461 We emphasize that this figure is only an estimate and should be treated as such.
D. Article 11 of the DSU – Amount of USDOD R&D Funding Potentially Relevant
to LCA
701. We now address the United States' claim that the Panel acted inconsistently with Article 11 of
the DSU by stating, in paragraph 7.1205 of the Pane l Report, that it "{did} not consider it credible
that less than 1 per cent of the $45 billion in aeronautics R&D funding that {US}DOD provided to
Boeing over the period 1991-2005 had any potential re levance to LCA". The United States submits
that the Panel acted inconsistently with Article 11 of the DSU because the Panel's statement lacks an

1459Panel Report, para. 7.1099.
1460United States' oral statement and responses to questioning at the first session of the oral hearing.
1461Panel Report, paras. 7.1081, 7.1109, and 7.1110.
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evidentiary basis.
1462 The Panel's findings are summarized in subsection 1. We assess the
United States' claim in subsection 2.
1. The Panel's Findings
702. Having determined that the payments and access to facilities provided by the USDOD to
Boeing under the assistance instruments constitute specific subsidies, the Panel then sought to
determine the total amount of the subsidy to Boeing's LCA division.
703. The European Communities estimated that the USDOD had provided Boeing with
$4.3 billion in funding and support for "dual-use" R&D over the period 19 91-2006, and argued that
$2.4 billion of that total should be treated as a subsidy to Boeing's LCA division. 1463 T h e
United States responded that the European Commu nities had overestimated the amount of dual-use
research conducted under the R&D programmes at issue. According to the United States, the total
amount of any subsidy to Boeing's LCA division under USDOD R&D contracts and agreements "is
significantly less than $308 million over the period 1991-2006".1464
704. The Panel noted that the parties did not dispute that the USDOD had provided Boeing
$45 billion in total RDT&E funding between 1991 and 2005. 1465 However, the Panel explained that
the "European Communities {did} not assert that the entirety of this funding constitutes a subsidy to
Boeing", but rather "the European Communities' claim relate{d} to {US}DOD R&D funding and
support to Boeing for 'dual use' R&D".
1466
705. The Panel then observed that "there is no pub licly available information setting forth the
amount of {US}DOD 'dual use' R&D funding to Boeing" 1467 and noted, therefore, that the
European Communities' subsidy amount was onl y an estimate based upon a "detailed expert
report".1468 Taking account of the European Communities' argument that its estimate should be
adopted unless the United States provided evidence of the actual value of the payments and access to
USDOD facilities, the Panel decided that, if the United States provided the "actual information and

1462United States' other appellant's submission, paras. 123-125.
1463Panel Report, para. 7.1199 (referring to Panel Exhibit EC-25, containing a compilation of charts
setting out NASA/USDOD/USDOC aeronautics R&D subsidie s to Boeing's LCA division, table at p. 20,
containing data on USDOD RDT&E).
1464Panel Report, para. 7.1200.
1465Panel Report, para. 7.1202 (referring to European Communities' second written submission to the
Panel, para. 471; and Top Contractors' Share of DOD RDT&E, FY 1991-FY 2005 (Panel Exhibit EC-29), p. 1).
1466Panel Report, para. 7.1202.
1467Panel Report, para. 7.1203.
1468Panel Report, para. 7.1203 (referring to CRA International, "U.S. Department of Defense (DoD)
Research, Development, Test and Evaluation (RDT&E) Funding Support to The Boeing Company for Dual-Use
Aircraft R&D", CRA Project No. D08745-00 (November 2006) (Panel Exhibit EC-7)).
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figures" relating to the USDOD subsidy, then its amount would "prevail over the
European Communities' estimate".
1469
706. The Panel thus turned to the United States' subsidy calculations and noted that the
United States claimed that the "maximum am ount" of the subsidy was "only $308 million". 1470 The
Panel observed that the United States had redu ced the amount during the proceedings from the
$529 million it had initially indicated due to "several mistakes" in Exhibit US-41 that contained a list
of 43 USDOD R&D contracts and agreements. 1471 The Panel further observed that the United States
had indicated that its estimate concerned the total amount of the subsidy to Boeing "as a whole". 1472
The Panel noted that, in the end, the United States claimed that the subsidy to Boeing's LCA division
"would be significantly less than $308 million, and, it seems, significantly less than $100 million over
the period 1991-2006".1473
707. The Panel rejected the United States' "estimate" of the total amount of the subsidy to Boeing
on four grounds.1474 First, the United States' calculations excluded funding under the military aircraft
RDT&E programmes, which made up $3.1 billion of the European Communities' $4.3 billion
estimate. Second, the United States did not provide similar "argument or evidence" 1475 for a
maximum subsidy amount as it did with the NASA aer onautics R&D subsidy calculations. Third, the
United States did not include the value of Boeing's access to USDOD facilities. Fourth, the Panel did
not find it "credible that less than 1 per cen t of the $45 billion in aeronautics R&D funding" 1476 to
Boeing "had any potential relevance to LCA". 1477 Without taking a definitional position itself, the
Panel noted that the United States applied a broad de finition of "dual-use" that included "'theoretical'
or 'potential' civil applications" of R&D, and not one limited to tangible technologies actually applied
on civil aircraft.1478

1469Panel Report, para. 7.1203.
1470Panel Report, para. 7.1204 (referring to United States' response to questions regarding US Panel
exhibits (10 January 2008), p. 2).
1471Panel Report, para. 7.1204.
1472Panel Report, para. 7.1204.
1473Panel Report, para. 7.1204.
1474Panel Report, para. 7.1205.
1475Panel Report, para. 7.1205.
1476Panel Report, para. 7.1205.
1477Panel Report, para. 7.1205. (footnote omitted)
1478Panel Report, footnote 2796 to para. 7.1205.
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708. At the same time, the Panel said it could not accept the European Communities' estimate of
the subsidy provided to Boeing's LCA division, as its "methodology and analysis"
1479 did not
distinguish payments and access to USDOD fac ilities provided under procurement contracts from
those made under assistance instruments. In the light of the conflicting estimates of the parties and its
own analysis, the Panel held that it was not po ssible to isolate payments and access to facilities
provided under procurement contracts from th e payments and access provided under assistance
instruments.
1480
709. The Panel next stated that the Appellate Body report in US – Upland Cotton stood for the
proposition that, "while a panel shoul d endeavour to arrive at an estimate of the order of the
'magnitude' of the subsid(ies) alleged to cause pri ce suppression within the meaning of Article 6.3(c)
of the SCM Agreement, a 'precise, definitive quantification … is not required'". 1481 The Panel
considered that this principle also applied to other forms of serious prejudice in Article 6.3.
710. The Panel concluded:
In this case, where we have determ ined that a measure constitutes a
specific subsidy within the meaning of Articles 1 and 2 of the
SCM Agreement, we have attempte d to determine the amount of the
subsidy that is properly allocated to Boeing's "LCA division".
However, in the case of {US}DOD R&D subsidies to Boeing, while
we do not accept the United States' estimate that the total amount of
any {US}DOD subsidy to Boeing for "dual use" R&D is
significantly less than $308 million over the period 1991-2006, we
also cannot accept the European Communities' estimate, and any
attempt by the Panel to go further and arrive at our own estimate of
the amount of the subsidy to Boeing's LCA division would be
speculative.
1482 (footnote omitted)
2. Did the Panel Make an Objective Asse ssment of the Matter under Article 11
of the DSU in Making the Challenged Statement?
711. The United States claims that the Panel acted in consistently with Article 11 of the DSU in
stating that it "{did} not consider it credible that less than 1 per cent of the $45 billion in aeronautics
R&D funding that {US}DOD provided to Boeing over the period 1991-2005 had any potential
relevance to LCA".1483 According to the United States, the Pa nel acted inconsistently with Article 11

1479Panel Report, para. 7.1206.
1480Panel Report, para. 7.1207.
1482Panel Report, para. 7.1209.
1483Panel Report, para. 7.1205. (footnote omitted)
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of the DSU because the Panel's fi nding lacks an evidentiary basis.
1484 The United States explains that
"{t}he Panel cited no evidence in support of its comment about the amount of {USDOD} R&D of
'potential relevance to LCA'." 1485 Furthermore, the United States submits that the Panel's statement
"is inconsistent with the Panel's ultimate finding that 'any attempt by the Panel to go further and arrive
at {its} own estimate of the amount of the subsidy to Boeing's LCA division would be
speculative'."1486 The United States also refers to the Panel's statement that it would not take a
position on whether "dual-use" shoul d be understood narrowly or broadly. 1487 The United States
therefore requests the Appellate Body to reverse the Panel's finding.
712. The European Union rejects the allegations that the Panel acted inconsistently with Article 11
of the DSU in making the statement challenged by the United States. 1488 First, the European Union
argues that this statement should not be subject to appellate review, as it is not a legal finding or
conclusion within the meaning of Article 17.13 of the DSU and had no effect on the Panel's ultimate
conclusions that the aeronautics R&D subsidies prov ided to Boeing amounted to at least $2.6 billion
and caused adverse effects to the Eu ropean Communities' LCA industry. 1489 Second, the
European Union asserts that, if this statement is subject to appellate review, it is really in the nature of
a conclusion as to the Panel's evid ence-based rejection of the United States' claim that dual-use R&D
funding to Boeing was no greater than $308 million.1490
713. Article 11 of the DSU requires a panel to "make an objective assessment of the matter before
it, including an objective assessment of the facts of the case". The Appellate Body has previously
explained that, as the initial triers of facts, panels have discretion in the appreciation of the evidence,
and the Appellate Body has said it "will not interfe re lightly" with a panel's exercise of this
discretion.1491 The Appellate Body has noted that it w ill not "base a finding of inconsistency under
Article 11 simply on the conclusion that {it} migh t have reached a different factual finding". 1492
Instead, for a claim under Article 11 to succeed, the A ppellate Body must be satisfied that the panel

1484United States' other appellant's submission, paras. 123-125 (referring to Appellate Body Report,
US – Carbon Steel, para. 142).
1485United States' other appellant's submission, para. 125.
1487United States' other appellant's submission, para. 125 (referring to Panel Report, footnote 2796 to
para. 7.1205).
1488European Union's appellee's submission, para. 185.
1489European Union's appellee's submission, para. 186 (referring to Appellate Body Report, US – Wool
Shirts and Blouses, p. 17, DSR 1997:I, 323, at 338).
1490European Union's appellee's submission, para. 187.
1491Appellate Body Report, US – Wheat Gluten , para. 151; see also Appellate Body Report, US –
Carbon Steel, para. 142.
1492Appellate Body Report, US – Wheat Gluten, para. 151.
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has exceeded its authority as trier of facts.
1493 As initial trier of facts, a panel must provide "reasoned
and adequate explanations and coherent reasoning" 1494, base its finding on a sufficient evidentiary
basis1495, and treat evidence with "even-handedness".1496
714. The United States' challenge involves a remark made by the Panel in attempting to estimate
the amount of the subsidy provided by the USDOD to Boeing. As it did when it estimated NASA's
subsidies, the Panel looked first at the evidence provided by the United States, because it considered
that, "if the United States were able to provide the Panel with the actual information and figures
regarding the amount of {US}DOD R&D subsidi es to Boeing, or information from which the
maximum amount of those subsidies could be deri ved, then such information would necessarily
prevail over the European Communities' estimate."
1497 It is in the context of reviewing the evidence
presented by the United States that the Panel made th e challenged statement. We therefore focus
below on this part of the Panel's analysis.
715. The United States presented the Panel with an exhibit 1498 that had a list of 43 USDOD R&D
contracts and agreements and indicated that $ 308 million was the maximum possible amount of the
USDOD's subsidy to Boeing. 1499 In addition, the United States argued that the $308 million
concerned the funding provided to Boeing "as a whol e", that is, both to Boeing's military and LCA
divisions.1500 The United States proposed that the amount of $308 million be divided in half to arrive
at the subsidy provided to Boeing's LCA division, in line with the methodology employed by the
European Communities.
1501 Thus, the Panel observed that, "while the United States has never
provided an exact figure regarding the actual am ount of any {US}DOD subsidy to Boeing's LCA

1493Appellate Body Report, US – Wheat Gluten, para. 151.
1494Appellate Body Report, US – Upland Cotton (Article 21.5 – Brazil), footnote 618 to para. 293.
1495Appellate Body Report, US – Carbon Steel, para. 142.
1496Appellate Body Report, US – Upland Cotton (Article 21.5 – Brazil), para. 292.
1497Panel Report, para. 7.1203.
1498Panel Exhibit US-41 contains a list of 43 US DOD R&D contracts and ag reements that total
$529 million. However, the United States subsequently indicated that the list in Panel Exhibit US-41 contains
several mistakes, and that the actual maximum amount is only $308 million. (See Panel Report, para. 7.1204)
1499The United States asserted that many of the R& D contracts and agreemen ts that composed the
$308 million estimate did not, in fact, involve any dual-use R&D. Furthermore, the United States argued that
some of the contracts and agreements on the list had "e lements" with "no civil applicability". (Panel Report,
para. 7.1204 (referring to United States' first written submission to the Panel, paras. 161 and 162; United States'
response to Panel Question 208, para. 290; United States' comments on the European Communities' response to
Panel Question 190(b), para. 326; and United States' response to Panel Question 208(b), para. 290 and footnote
376 thereto))
1500Panel Report, para. 7.1204.
1501Panel Report, para. 7.1204.
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division, it is clear that any such estimate would be significantly less than $308 million, and, it seems,
significantly less than $100 million over the period 1991-2006."
1502
716. The Panel said that it could not accept the Unite d States' estimate and gave the following
reasons for its position. First, the Panel explai ned that the United States' estimate only included
funding provided by the USDOD to Boeing under th e 13 "general aircraft" RDT&E programmes and
"completely exclude{d}" all funding provided to Boeing under the 10 "military aircraft" RDT&E
programmes at issue. 1503 The Panel noted that funding under the military aircraft RDT&E
programmes accounted for $3.1 billion out of the $4 .3 billion that the European Communities had
estimated was the total amount of the subsidy prov ided by the USDOD to Bo eing for dual-use R&D.
The second reason given by the Panel concerned the quality of the evidence provided by the
United States. It appears that the Panel attribut ed less probative weight to the evidence put forward
by the United States in relation to USDOD funding than to the evidence it submitted in connection
with NASA funding. In particular, the Panel cr iticized the United States for failing to provide
arguments or evidence with respect to the maximum amount of USDOD R&D dual-use funding
provided to Boeing.
1504 Third, the Panel pointed out that the United States' estimate of the total
amount of USDOD aeronautics R&D subsidy to Boeing did not account for the value of any access to
USDOD facilities granted to Boeing. We recall that the Panel had found that access to USDOD
facilities provided to Boeing was also a subsidy w ithin the meaning of Article 1.1(a)(1) of the
SCM Agreement.1505 Finally, the Panel made the statement challenged by the United States that it
"{did} not consider it credible that less than 1 per cent of the $45 billion in aeronautics R&D funding
that {US}DOD provided to Boeing over the pe riod 1991-2005 had any potential relevance to
LCA".1506
717. It is true that the Panel, in making the statem ent challenged by the United States, did not cite
specific evidence in support of its position. As we have explained above , Article 11 of the DSU
requires panels not to make findings without a sufficient evidentiary basis.1507 Certainly it would have
been preferable for the Panel to have cited to ev idence or referred to earlier factual findings when it
made the challenged statement. Yet, other parts of the Panel's analysis lend support to the Panel's
statement. We recall that the Panel examined the 23 USDOD RDT&E programmes at issue in its

1502Panel Report, para. 7.1204.
1503Panel Report, para. 7.1205.
1504Panel Report, para. 7.1205. The Panel noted that, by contrast, the United States had provided
evidence demonstrating that the maximum amount of the NASA payments to Boeing for aeronautics R&D
could not be more than $1.05 billion.
1505See Panel Report, para. 7.1171.
1506Panel Report, para. 7.1205. (footnote omitted)
1507See Appellate Body Report, US – Carbon Steel, para. 142.
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assessment of whether the measures constituted purchases of services. In the context of that analysis,
the Panel looked at the benefits to be derived from the research by the USDOD and Boeing, which
would have been germane to the issue of the " potential relevance to LCA" of the funding provided
under the RDT&E programmes. The Panel made severa l findings that seem to question the view that
the research had limited appli cability to LCA development and production. The Panel found that,
while the R&D performed by Boeing was of "some be nefit and use" to the USDOD, it noted that of
the 13 different "general aircraft" programmes at issue, "it would appear that at least two had the
explicit objective of developing 'dual use' R&D."
1508
718. More importantly, in this analysis, the Panel sp ecifically rejected the United States' argument
that "technologies developed under the {US}DO D R&D programmes are {not} 'technologically
applicable' to commercial aircraft (because of the different missions and cost-sensitivities of military
and commercial aircraft)".1509 Further, the United States explained that " there are some small areas
of overlap, which produce 'dual-use' technologies, but in these areas, {US}DOD generally tries to use
the potential civil application to motivate commercial companies to contribute their resources to
lessen {US}DOD's cost of reaching its military objective". 1510 Moreover, the Panel noted that the
United States elsewhere explained that "where a {USDOD} contracting agency sees additional direct
applications for purchased technology, it seeks to obtain private sector contribution for the
development of the technology". 1511 The United States also stated that "the incentive for private
participation is the opportunity to share the cost of developing some technology of mutual interest to
both the contractor and the government". 1512 For these reasons, the Panel found that the United States
had failed to substantiate "its assertion that only a miniscule amount of the R&D conducted by Boeing
under the {US}DOD R&D programmes at issue w as 'technologically applicable' to commercial

1508Panel Report, para. 7.1148.
1509Panel Report, para. 7.1158. The Panel provided two reasons for rejecting this argument. First, the
Panel said that the United States' argument "overlooks the fact that at least some of the {US}DOD programmes,
for example, the ManTech Composite s Affordability Initiative related to Advanced Fibre Placement, had the
explicit objective of funding R&D to be applied towards both military and civil aircraft and emphasized the
development of lower cost technologies." ( Ibid., para. 7.1159 (original emphasis)) Second, the Panel recalled
the United States' explanation that "there exists a link between 'assistance instruments' and 'dual use'
technologies: according to the United St ates, the reason that Boeing and ot her firms agree to enter into cost-
sharing cooperative agreements with {US}DOD is because of the benefit (or poten tial benefit) of the R&D for
their commercial operations." (Ibid. (original emphasis))
(emphasis added by the Panel)
1511Panel Report, para. 7.1159 (quoting United States' first written submission to the Panel, para. 132).
(emphasis added by the Panel)
1512Panel Report, para. 7.1159 (referring to United States' first written submission to the Panel, footnote
119 to para. 104). See also United States' first written submission to the Panel, para. 112.
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aircraft."
1513 This finding is consiste nt and supportive of the Panel's refusal to accept the
United States' proposition that less than 1% of the total aeronautics R&D funding that the USDOD
provided to Boeing over the period 1991-2005 had any potential relevance to LCA.
719. We additionally note that the Panel had other ev idence before it that supported the view that
more than 1% of the total funding provided to Boeing over the period 1991-2005 had potential
relevance to LCA. The European Communities had provided the Panel with its own estimate of the
subsidy provided by the USDOD, which was b ased on calculations made by a firm called CRA
International.
1514 The amount of the subsidy to Boeing's LCA division was estimated by the
European Communities to be $2.4 billion. This is approximately 5% of the total R&D funding
provided by the USDOD to Boeing. The Panel di d not accept the European Communities' estimate
because it did not distinguish between payments and access to USDOD facilities provided to Boeing
under assistance instruments, on the one hand, and procurement contracts, on the other. 1515 However,
in the statement challenged by the United States, the Panel did not appear to be distinguishing
between funding provided under procurement c ontracts and that provided under assistance
instruments. Instead, the Panel seemed to be re ferring to all aeronautics R&D funding provided to
Boeing that had any potential relevance to LCA. T hus, the Panel's statement is coherent with the
general estimate provided by the European Communiti es and is not undermined by the fact that the
European Communities' estimate may have incl uded funding under both assistance instruments and
procurement contracts.
720. In addition, we note that the statement challe nged by the United States was the final remark
made by the Panel in explaining why it was not persuaded by the estimate provided by the
United States. When it made the challenged statem ent, the Panel had already provided three reasons
why it could not accept the United States' estimate. Therefore, had the Panel refrained from making
the challenged statement, it would have made little di fference to the outcome of the Panel's analysis,
nor would it have made much difference in terms of the underlying support for the Panel's decision to
reject the United States' estimate. The United States has not appealed the three other reasons given by
the Panel, nor the Panel's decision to reject the estimate put forward by the United States.

1513Panel Report, para. 7.1159. The Panel also found that the United States had failed to substantiate its
assertion that the ITAR make it effectively impossible for Boeing to utilize any of the R&D performed under
USDOD R&D contracts and agreements towards LCA. (Ibid., para. 7.1160)
1514Panel Exhibit EC-7, supra, footnote 1468.
1515Panel Report, para. 7.1206.
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721. We further recall that the Panel ultimately declin ed to provide a figure for its estimate of the
total subsidy amount because the evidence on record did not allow it to segregate the payments and
access to USDOD facilities provided under the assist ance instruments from payments and access
provided under the procurement contracts.
1516 The Panel's rejection of the estimate proposed by the
United States, as well as the one proposed by the European Communities, could be understood to
constitute a finding by the Panel as to the range within which the amount of the subsidy would fall.1517
However, this range does not depe nd for support on the statement challenged by the United States.
As noted above, the Panel's conclusion that it c ould "not accept the United St ates' estimate that the
total amount of any {US}DOD subsidy to Boeing for 'dual use' R&D is significantly less than
$308 million over the period 1991-2006"
1518 is supported by three other reasons, none of which has
been challenged by the United States on appeal. In any event, the precise amount of the subsidy, or
the range between the United States' and the Europe an Communities' estimates, was not critical for
the Panel's subsequent analysis of the European Communities' claims of serious prejudice. In its
analysis of serious prejudice, the Panel stated that the aeronautics R&D subsidies amounted to at least
$2.6 billion.1519 The figure of $2.6 billion was the amount of the subsidy that the Panel had estimated
for the payments and the access to facilities, equipment, and employees provided under the NASA
contracts and agreements. In other words, th e precise amount of subsidy provided under the USDOD
assistance instruments did not play a determinative role in the Panel's assessment of the
European Communities' serious prejudice claims.
722. Finally, the Appellate Body recently clarified in EC – Fasteners (China) that "not every error
allegedly committed by a panel amount s to a violation of Article 11 of the DSU" but, rather, "{i}t is
incumbent on a participant raising a cl aim under Article 11 on appeal to explain why the alleged error
meets the standard of review under that provision."
1520 In particular, the Appellate Body referred to a
situation where an appellant alleges that a panel ignor ed a piece of evidence, and stated that "the mere

1516Panel Report, para. 7.1207.
1517The Panel concluded:
In this case, where we have determined that a measure constitutes a specific
subsidy within the meaning of Article s 1 and 2 of the SCM Agreement, we
have attempted to determine the amount of the subsidy that is properly
allocated to Boeing's "L CA division". However, in the case of {US}DOD
R&D subsidies to Boeing, while we do not accept the United States'
estimate that the total amount of any {US}DOD subsidy to Boeing for "dual
use" R&D is significantly less than $308 million over the period 1991-2006,
we also cannot accept the European Communities' estimate, and any attempt
by the Panel to go further and arrive at our own estimate of the amount of
the subsidy to Boeing's LCA division would be speculative.
1519Panel Report, para. 7.1760.
1520Appellate Body Report, EC – Fasteners (China), para. 442. (original emphasis)
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fact that a panel did not explicitly refer to that evidence in its reasoning is insufficient to support a
claim of violation under Article 11."
1521 Instead, the appellant "must explain why such evidence is so
material to its case that the panel's failure e xplicitly to address and rely upon the evidence has a
bearing on the objectivity of the panel's factual assessment". 1522 We believe that this rationale applies
equally to the case before us, where the United States is challenging the evidentiary basis of a
statement by the Panel under Article 11 of the DS U but has not demonstrated or explained how the
error vitiates the Panel's substantive findings. In our view, it is insufficient for an appellant simply to
disagree with a statement or to assert that it is not supported by evidence. To succeed in its challenge
under Article 11, an appellant must show that th e statement was material to the panel's legal
conclusion. In this case, the United States has not demonstrated that the challenged statement was
material to the Panel's conclusion as to the total amount of the subsidy provided to Boeing through the
USDOD measures. This is because, as explained a bove, other elements of the Panel's analysis do
support that conclusion.
723. In the light of the above, we reject the United States' claim that the Panel acted inconsistently
with Article 11 of the DSU when it stated, in paragr aph 7.1205 of the Panel Report, that it "{did} not
consider it credible that less than 1 per cent of the $45 billion in aeronautics R&D funding that
{US}DOD provided to Boeing over the period 1991-2005 had any potential relevance to LCA".
VII. NASA/USDOD Allocation of Patent Rights – Specificity
A. Introduction
724. We turn now to the European Union's claim concerning the Panel's finding that, on the
assumption that the allocation of patent rights under the contracts and agreements between
NASA/USDOD and Boeing constitutes a s ubsidy under Article 1.1 of the SCM Agreement, it would
not be specific within the meaning of Article 2.1 of that Agreement. We provide a summary of the
Panel's findings in section B. Next, we discuss the Panel's arguendo approach in section C. The
European Union's claims on appeal are assessed in sections D, E, and F.
725. Before proceeding, we wish to clarify three aspects about the scope of the appeal that is
before us. First, we note that, before the Pane l, the European Communities challenged: (i) the
allocation of patent rights under NASA/USDOD contracts and agreem ents; and (ii) the allocation of
rights over the data produced under the relevant NASA /USDOD contracts and agreements.
1523 The

1521Appellate Body Report, EC – Fasteners (China), para. 442.
1522Appellate Body Report, EC – Fasteners (China), para. 442.
1523See Panel Report, paras. 7.1258-7.1265. The Panel noted that trade secrets are a subset of data
rights. (Ibid., para. 7.1265)
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Panel rejected both claims.
1524 The European Union's appeal is directed only at the Panel's finding
concerning the patent rights and does not include the Panel's finding on the data rights. This was
confirmed by the European Union during the oral hearing.
726. Second, we observe that the European Comm unities challenged the patent rights allocation
under NASA/USDOD contracts and agreements independently from its challenge to the payments and
other support provided to Boeing unde r certain NASA/USDOD contract s and agreements. However,
as discussed in Part VI, the allocation of patent rights was one of the features of the NASA/USDOD
contracts and agreements on which the European Communities focused its argumentation that these
transactions are not purchases of services. It was also one of the five evidentiary elements on which
the Panel relied in concludi ng that the transactions are not purchases of services. 1525 Thus, the
allocation of patent rights played a central role in the characterization of the contracts and agreements
between NASA/USDOD and Boeing and this, in turn, was determinative for the conclusion that the
payments and other support provide d under the contracts and agreemen ts constitute subsidies. The
allocation of patent rights was also a central aspect of the European Communities' arguments on
benefit, as well as the Panel's analysis of the issue. 1526 It is also an important element in our analyses
of financial contribution and benefit.1527
727. This gives rise to the following question: Was there an overlap between the
European Communities' claims and, if so, does this have any legal consequences? The Panel resolved
this question in relation to the European Communiti es' claim concerning the allocation of data rights
(which the Panel dismissed because it consider ed that the claim "involve{d} double-counting" 1528).
By contrast, the Panel dismissed the European Communities' claim concerning the allocation of patent
rights on the basis that the allocation of patent rights under NASA/USDOD contracts and agreements
is not specific. Nevertheless, during the interim re view, the Panel suggested that its reasoning on the
data rights claims "is applicable to any kind of intellectual property".1529
728. We had a brief exchange with the participants during the oral hearing about the issue of
potential overlap. The European Union explained th at its claims do not overlap completely because
its challenge to the allocation of patent rights concerned a broader set of NASA/USDOD contracts

1524See Panel Report paras. 7.1294 and 7.1311, respectively.
1525See section VI.A of this Report.
1526The Panel observed that, "{a}t a minimum, it would be expected that some form of royalties or
repayment would be required in the event that financial contributions were provided" on the terms reflected in
the NASA procurement contracts an d USDOD assistance instruments awarded to Boeing. (Panel Report,
paras. 7.1039 and 7.1184)
1527See sections VI.A and VI.B of this Report.
1528Panel Report, para. 7.1309.
1529Panel Report, para. 6.101.
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and agreements with Boeing than its claim relating to the payments and other support.
1530 The
United States, for its part, expressed the view that so mething that allegedly is the product of a subsidy
cannot itself constitute a subsidy.
729. Neither participant, however, has appealed th e Panel's approach to the potential overlap
between the European Communities' claims. We do not need to resolve the differences between the
participants' views, because the Panel proceeded on the assumption that the allocation of patent rights
is in some respects a self-standing subsidy that is separate from the payments and other support
provided under the NASA/USDOD contracts and agreements. 1531 To the extent that such a
self-standing subsidy could exist, we will assess the Pa nel's finding of specificity on the basis of the
Panel's assumption.
730. Third, we recall that the Panel found that th e payments and other support provided under the
NASA/USDOD contracts and agreements at issue cons titute specific subsidies within the meaning of
Article 2.1 of the SCM Agreement. In the case of the NASA payments and other support, the
United States "d{id} not dispute that each of the eight aeronautics R&D programmes at issue would,
if found to provide subsidies within the meaning of Article 1, be specific under Article 2.1(a) of the
SCM Agreement".1532 The Panel found that the payments and other support provided by the USDOD
under the assistance instruments are specific subsid ies under Article 2.1(a) because of "the fairly
narrow focus of R&D performed under the 23 indi vidual programmes (i.e. {programme elements})

1530Before the Panel, the European Communities explained that it was challenging "all patents
transferred/waived to Boeing under any and all R&D cont racts and agreements that Boeing entered into with
NASA and {US}DOD, including but not limited to thos e entered into under the specific NASA and {US}DOD
R&D programmes listed in the European Communities' pa nel request". (Panel Report, para. 7.1263) The
European Communities stated:
{F}rom the outset of this dispute, the European Communities has been
challenging as a specific subsidy the provision of all patents to Boeing by
NASA and {US}DOD pursuant to all NASA and {US}DOD contracts, even
if they derive from programmes that are not being specifically challenged.
(Ibid. (quoting European Communities' response to Panel Question 216, para. 386 (original italics)) (emphasis
added by the Panel underlined))
1531We are aware that there is some contradicti on between the Panel's assumption concerning the
allocation of patent rights and its remarks on the European Communities' data rights claim, which the Panel
suggested during the interim review would also be relevant to other intellectual property.
1532Panel Report, para. 7.1045. The only argument put forward by the United States was that NASA's
wind tunnel services are "used by a wide range of industries across the U.S. economic spectrum". ( Ibid.,
para. 7.1046 (quoting United States' first written submission to the Panel, para. 251)) The Panel rejected this
argument because it did not consider that it was supported by the evidence submitted by the United States.
(Ibid., para. 7.1047)
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challenged by the European Communities".
1533 Therefore, any findings we make in connection to the
specificity of the allocation of patent rights do not traverse the Panel's findings of specificity relating
to the payments and other support provided under the NASA/USDOD contracts and agreements.1534
B. The Panel's Findings
731. The Panel found that it was not necessary to reso lve the issue of whether the allocation of
patent rights under NASA and USDOD R&D contr acts and agreements constitutes a financial
contribution that conferred a benefit with in the meaning of Article 1.1 of the SCM Agreement.1535 In
the Panel's view, it was clear that the allocation of patent rights under NASA and USDOD contracts
and agreements is not specific to a "group of enterprises or industries" within the meaning of Article 2
of the SCM Agreement. This is because the Panel considered that the allocation of patent rights is
"uniform under all U.S. government R&D contracts, agreements, and grants, in respect of all U.S.
government departments and agencies, for all enterprises in all sectors". 1536 Indeed, the Panel noted
that, in all cases, the contractor owns any invent ions—and the patent rights—that it conceives in the
course of performing research funded by the US G overnment, whereas the US Government receives a
royalty-free, "government use/purpose" licence to use the subject invention.1537
732. The Panel took note that, prior to 1980, the US Government had a general policy of taking all
rights to patents over inventions produced by cont ractors under federally funded R&D contracts. The
US Government would then grant non-exclusive lic ences to any applicant, including the contractor,
that wished to use the subject invention.1538 In 1980, however, the US Government changed its policy
regarding the allocation of patent rights, and st arted granting ownership of patents to government
contractors over any invention that they produ ced with federal funding under R&D contracts. 1539 In
accordance with this new policy, the US Governme nt would receive a limited "government use"

1533Panel Report, para. 7.1196. The Panel made an a lternative finding in the event "it {was} necessary
to examine specificity at the level of the 'RDT&E Program' as a whole". ( Ibid., para. 7.1197) The Panel found
that the European Communities had demonstrated de facto specificity under Article 2.1(c) of the
SCM Agreement, because it had substantiated its assertion that Boeing, Lockheed Martin, Northrop Grumman,
Raytheon, and United Technologies had received on average 45.2% of total USDOD RDT&E funding over the
period 1991 through 2005. According to the Panel, this evidence demonstrates that almost half of all RDT&E
funding went to five enterprises, all of which form part of the same industry. In the Panel's view, "this is more
than enough to confirm that RDT&E funding goes 'predominantly' to firms in the defense industry, and this is
enough to establish de facto specificity under Article 2.1(c)." (Ibid. (footnote omitted))
1534We further note that the United States has not appealed the Panel's findings of specificity
concerning the NASA/USDOD payments and other support.
1535Panel Report, para. 7.1276.
1536Panel Report, para. 7.1276.
1537Panel Report, para. 7.1276.
1538Panel Report, para. 7.1277.
1539Panel Report, para. 7.1277.
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licence to use the subject invention without having to pay the contractor any royalties.
1540 The Panel
also acknowledged that this new policy originally applied only to non-profit organizations and small
business firms, and that subsequently it was exte nded so as to accord the same treatment to all
government contractors, regardless of size and profit/non-profit status.1541
733. The Panel noted that this new government polic y concerning allocation of patent rights was
implemented through a number of different legal in struments. The following five instruments were
highlighted as the "relevant" ones 1542: (i) the Bayh-Dole Act, which implemented this new
government policy in 1980; (ii) the 1983 Presi dential Memorandum to the heads of Executive
departments and agencies that extended the scope of the policy to include all government contractors,
regardless of size and profit/non-profit status; (iii) the 1987 Executive Order into which the terms of
the aforementioned Memorandum were eventually incorporated; (iv) the corresponding general
federal regulations implementing the Bayh-Dole Act, the 1983 Presidential Memorandum, and the
1987 Executive Order
1543; and (v) the NASA-specific regulations. 1544 The Panel observed that the
rules governing the allocation of patent rights under US Government-funded R&D contracts and
agreements have remained essentially unchanged since the passage of the Bayh-Dole Act in 1980.1545
734. The Panel turned next to examine how these US laws and regulations actually operate, and
noted that they grant government contractors the opti on to retain patent rights, with some limitations,
to inventions that arise from a funding agreement with the US Government. 1546 These patent rights
authorize contractors to prevent all other entiti es from exploiting the technologies claimed by the
patent and allow companies to grant commercial lice nces for the technology to others in exchange for
compensation.1547 The Panel noted that the government receives a "nonexclusive, nontransferable,
irrevocable, paid-up licence to practice … for or on behalf of the United States any subject invention
throughout the world". 1548 Notably, this licence does not extend to any right to develop patented

1540Panel Report, para. 7.1277.
1541Panel Report, para. 7.1277.
1542Panel Report, para. 7.1278.
1543United States Code of Federal Regulations , Title 48, sections 27.300-27.306 (Patent Rights under
Government Contracts) (Panel Exhibit EC-559).
1544United States Code of Federal Regulations , Title 14, section 1245 (Patents and Other Intellectual
Property Rights, Subpart 1: Patent Waiver Regulations) (Panel Exhibit EC-572).
1545Panel Report, para. 7.1283.
1546Panel Report, para. 7.1284.
1547Panel Report, para. 7.1285.
1548United States Code , Title 35, section 202(c)(4) (Panel Exhibit EC-558); United States Code of
Federal Regulations, Title 48, section 27.302(c) (Panel Exhibit EC-559).
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technology for commercial sale but, ra ther, is limited to the use of the invention for any "government
use".
1549
735. When addressing the Space Act, the Panel first observed that it provides that any invention
made pursuant to a contract with NASA "shall be th e exclusive property of the United States, and if
such invention is patentable a patent therefore shall be issued to the United States" 1550 unless waived
by NASA. The Panel noted, however, that, pursuan t to NASA-specific regulations, NASA generally
waives its patent rights to large co mpanies, such as Boeing, for inventions developed in the course of
NASA-funded research in order to comply with the 1983 Presidential Memorandum. 1551 The Panel
acknowledged that, unlike NASA, the USDOD does not have its own detailed regulations regarding
patent transfers to large companies. Instead, the USDOD generally relies on the relevant portion of
the Bayh-Dole Act and the 1983 Presidential Me morandum expanding the policy to large business
firms, as well as the corresponding general regulations implementing these instruments.1552
736. The Panel rejected the Europ ean Communities' argument that whether other US Government
agencies follow the same practices as NASA and the USDOD with regard to the allocation of
intellectual property rights is not relevant for the purpose of a specificity analysis. In the Panel's
view, NASA's agency-specific regulations for impl ementing this US Government-wide policy cannot,
for purposes of Article 2 of the SCM Agreement, be analyzed in isolation from the broader policy and
legal framework that they implement. 1553 The Panel found that the specificity analysis cannot be
dependent upon how the complaining party chooses to define the measure that it is challenging,
because accepting such an approach would lead to anomalous results.1554
737. The Panel therefore found that, assuming arguendo that the allocation of patent rights under
NASA and USDOD R&D contracts and agreements with Boeing involves a subsidy within the
meaning of Article 1.1 of the SCM Agreement—that is, a financial contribution that confers a
benefit—the European Communities had failed to demons trate that any such subsidy is specific within
the meaning of Article 2 of the SCM Agreement.1555

1549Panel Report, para. 7.1286.
1550Panel Report, para. 7.1287 (quoting United States Code , Title 42, section 2457(a) (Panel Exhibit
EC-571)).
1551Panel Report, para. 7.1287.
1552Panel Report, para. 7.1291.
1553Panel Report, para. 7.1293.
1554Panel Report, para. 7.1293.
1555Panel Report, para. 7.1294.
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C. The Panel's Arguendo Approach
738. The Panel used an arguendo assumption to avoid having to address whether the allocation of
patent rights to Boeing is a financial contributio n that confers a benefit within the meaning of
Article 1.1 of the SCM Agreement.
1556
739. The chapeau of Article 2.1 of the SCM Agreement states that the analysis of specificity is
directed at "a subsidy, as defined in paragraph 1 of Article 1". We understand that this is a reference
to the measure that has been determined to be a subsidy under Article 1.1 because the measure is a
financial contribution that confers a benefit. This suggests that the "subsidy, as defined in paragraph 1
of Article 1" is the starting point of the assessment of specificity. The analysis of specificity called
for in Article 2.1 presupposes that the subsidy has already been found to exist. No such finding was
made here given that the Panel ne ver performed an analysis under Article 1 but, rather, chose to start
its assessment with the issue of specificity. The Panel thought that its adoption of an arguendo
approach was consistent with the Appellate Body's guidance in China – Publications and Audiovisual
Products.1557 However, in that case, the Appellate Bo dy identified precisely the same problem that
arises here when it said that recourse to an arguendo approach "may also be problematic for certain
types of legal issues, for example, issues that go to the jurisdiction of a panel or preliminary questions
on which the substance of a s ubsequent analysis depends."1558 As we have explained, the assessment
of specificity under Article 2.1 depends on how the subsidy was defined under Article 1.1, leaving
little, if any, room for the adoption of an arguendo approach.
740. The Panel's failure to make an assessment under Article 1.1 of the SCM Agreement is
problematic in this case because there may be some overlap in the claims put forward by the
European Communities.1559 This potential overlap added to the importance of clearly identifying the
subsidy that would be the subject of the assessm ent of specificity under Article 2.1 of the
SCM Agreement. As noted above, neither participant h as requested on appeal that we address the
potential overlap between the Eu ropean Communities' claims.1560 However, the open question as to
the precise relationship between the claims of th e European Communities illustrates the problems that
may arise when a panel does not conduct a thorough examination of the subsidy at issue under
Article 1.1 before turning to the assessment of specificity pursuant to Article 2.1 of the
SCM Agreement. Indeed, at the oral hearing, the Europ ean Union and the United States had different

1556Neither participant has challenged the Panel's arguendo approach on appeal.
1557Panel Report, footnote 2933 to para. 7.1294 (referring to Appellate Body Report, China –
1558Appellate Body Report, China – Publications and Audiovisual Products, para. 213.
1559See supra, paras. 726-729.
1560See supra, para. 729.
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views as to what precisely the Panel "assumed" to be a self-standing subsidy for purposes of its
assessment of specificity. The European Union argue d that the measure consisted of the allocation of
patent rights under the NASA/USDOD R&D contr acts and agreements with Boeing. The
United States responded that, in its view, the Pa nel's assumption was broader and included the Bayh-
Dole Act, the 1983 Presidential Memorandum, and the 1987 Executive Order.
741. Another problem with the arguendo approach adopted by the Pane l in this case is that, were
the Appellate Body to disagree with the Panel's finding, it could lead to the claim remaining
unresolved. If in this case we were to reverse the Panel and find instead that the allocation of patent
rights under NASA/USDOD contracts and agreements is specific within the meaning of Article 2.1 of
the SCM Agreement, there would be no Panel findings as to whether or not the allocation of patent
rights under those contracts and agreements cons titutes a subsidy. In order to resolve the
European Communities' claim, we would have to be in a position to complete the analysis
ourselves.
1561 Article 3.3 of the DSU provides that one of the purposes of the WTO dispute settlement
system is the "prompt settlement of situations in which a Member considers that any benefits accruing
to it directly or indirectly under the covered agre ements are being impaired by measures taken by
another Member". This purpose is frustrated wh en, upon completion of the adjudication, a Member's
claim is left unresolved because the Appellate Body was unable to complete the analysis of aspects of
the claim with respect to which the panel had adopted an arguendo approach. An arguendo approach
may initially appear to be more efficient, but ultimately may result in inefficient outcomes.1562
742. With these reservations about the Panel's arguendo approach in mind, we turn to the Panel's
assessment of specificity and the claims raised agai nst it by the European Union. We examine, in
sections D and E, the European Union's claim that the Panel erred in the interpretation and application
of Article 2.1(a) of the SCM Agreement. We then turn to the European Union's allegation that the
Panel failed to address its claim of de facto specificity under Article 2.1(c) in section F.

1561The European Union has not requested that we comple te the analysis with respect to Article 1.1 of
the SCM Agreement if we reverse the Panel and find that the allocation of patent rights under the NASA and
USDOD measures at issue is specific w ithin the meaning of Article 2.1. In the past, the Appellate Body has
completed the analysis where there were sufficient undisp uted facts or factual findings by the panel to enable it
to do so. (See Appellate Body Report, US – Section 211 Appropriations Act , para. 343) In doing so in a recent
case, the Appellate Body was able to complete the analysis by considering evidence put forward by the
responding Member, that is, by examining the claim of the complaining Member on the assumption that the
evidence proffered by the responding Member was accurate and uncontested. (See Appellate Body Report,
EC and certain member States – Large Civil Aircraft, para. 925) See also Part VI of this Report.
1562In justifying its use of the arguendo approach, the Panel also note d that, having found that the
alleged subsidies are not specific under Article 2 of the SCM Agreement, its reliance upon the arguendo
assumption created no issues or difficulties from the point of view of the implementation of DSB
recommendations and rulings. (Panel Report, footnote 2933 to para. 7.1294) This holds true only once a finding
of non-specificity has been made, which cannot be known at the outset of the analysis. The Panel's reasoning
seems to have been based on an anticipated result, whether or not such a result would have been arrived at on
the basis of its analysis. The Panel therefore seems to have gotten its logic backwards.
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D. Did the Panel Err in the Interpretation of Article 2.1(a) of the SCM Agreement?
743. The European Union alleges that the Panel e rred by considering that the US Government
"as a whole" can be a "granting authority" for purposes of Article 2.1 of the SCM Agreement. The
European Union asserts that, in this case, the granting authorities are NASA and the USDOD.
744. The United States responds that the European Union misinterprets Article 2.1 in calling for an
analysis based on a subset of the US legislati on relating to the challenge d financial contributions.
1563
The United States submits that, if multiple author ities participate in the process of granting the
subsidy, nothing in the text of Article 2.1(a) preven ts a panel from considering all of them to be part
of "the granting authority". Before the Panel, the United States argued that the granting authority with
respect to the allocation of patent rights under both the NASA and USDOD me asures is the President
of the United States.1564
745. The issue before us concerns the scope of the assessment of specificity under Article 2.1(a) of
the SCM Agreement and, in particular, the scope of the inquiry where a subsidy is provided by
different granting authorities pursuant to an overall scheme set out by a higher domestic authority.
The position of the European Union is that the inquiry must limit itself to the granting authority that
actually provides the subsidy being challenged by the complaining Member. The United States, for
its part, submits that the inquiry must look at the broader legal framework.
746. Article 2.1 of the SCM Agreement provides:
In order to determine whether a subs idy, as defined in paragraph 1 of
Article 1, is specific to an enterprise or industry or group of
enterprises or industries (referred to in this Agreement as "certain
enterprises") within the jurisdicti on of the granting authority, the
following principles shall apply:
(a) Where the granting authority, or the legislation pursuant to
which the granting authority opera tes, explicitly limits access to a
subsidy to certain enterprises, such subsidy shall be specific.
(b) Where the granting authority, or the legislation pursuant to
which the granting authority operates, establishes objective criteria or
conditions
2 governing the eligibility for, and the amount of, a
subsidy, specificity shall not exist, provided that the eligibility is
automatic and that such criteria and conditions are strictly adhered to.
The criteria or conditions must be clearly spelled out in law,
regulation, or other official document, so as to be capable of
verification.

1563United States' appellee's submission, p. 45, heading III.D.1.
1564United States' response to Panel Question 144(k), para. 127, which included Panel Exhibit US-1268.
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(c) If, notwithstanding any appearance of non-specificity
resulting from the application of the principles laid down in
subparagraphs (a) and (b), there are reasons to believe that the
subsidy may in fact be specific, other factors may be considered.
Such factors are: use of a subsidy programme by a limited number of
certain enterprises, predominant use by certain enterprises, the
granting of disproportionately large amounts of subsidy to certain
enterprises, and the manner in which discretion has been exercised by
the granting authority in the decision to grant a subsidy. In applying
this subparagraph, account shall be taken of the extent of
diversification of economic activiti es within the jurisdiction of the
granting authority, as well as of the length of time during which the
subsidy programme has been in operation.
2Objective criteria or conditions, as used herein, mean criteria or conditions
which are neutral, which do not favour certain enterprises over others, and
which are economic in nature and horizontal in application, such as number
of employees or size of enterprise.
747. The chapeau of Article 2.1 refers to "a subsidy, as defined in paragraph 1 of Article 1". As
we have noted above, we understand th at this is a reference to the me asure that has been determined
to be a subsidy under Article 1.1 because the measure is a financial contribution that confers a benefit.
This confirms that the starting point of the analys is of specificity is the measure that has been
determined to constitute a subsidy under Article 1.1 of the SCM Agreement.
748. Subparagraph (a) of Article 2.1 calls for a dete rmination of whether access to a subsidy is
limited to "certain enterprises". Th e focus of this inquiry is thus on the class of subsidy recipients,
and the manner in which access to that subsidy is lim ited to that class. These limitations must be
"explicit", which the Appellate Body has previously explained means that they must be "express,
unambiguous, or clear from the content of the rele vant instrument, and not merely 'implied' or
'suggested'".1565 Moreover, the Appellate Body has observe d that the reference in subparagraphs (a)
and (b) of Article 2.1 to "the granting authority, or the legislation pursuant to which the granting
authority operates", is critical because it situat es the analysis for assessing any limitations on
eligibility in the particular legal instrument or government conduct e ffecting such limitations. 1566 In
other words, the source of any limitation is the legislation pursuant to which the granting authority
operates, or the granting authority itself.
749. Article 2.1(a) refers to limitations on access to "a subsidy". Although the use of this term in
the singular might suggest a limited conception, we note that, if construed too narrowly, any
individual subsidy transaction would be, by definition, specific to the recipient. Other context in

1565Appellate Body Report, US – Anti-Dumping and Countervailing Duties (China), para. 372.
1566Appellate Body Report, US – Anti-Dumping and Countervailing Duties (China) , para. 368;
Appellate Body Report, EC and certain member States – Large Civil Aircraft, para. 943.
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Article 2.1 suggests a potentially broader framework within which to examine specificity. As we
have noted, subparagraphs (a) and (b ) of Article 2.1 refer to "the granting authority, or the legislation
pursuant to which the granting authority operates". The second sentence of subparagraph (c) refers
both to "a subsidy" and to "a s ubsidy programme". Similarly, exam ining economic diversification or
the duration of a subsidy programme under the last sentence of Article 2.1(c) also entails
consideration of the broader framework pursuant to which a particular challenged subsidy has been
issued. We do not consider that the use of the te rm "granting authority" in the singular limits the
inquiry. The use of the term "granting authority", in our view, does not preclude there being multiple
granting authorities. Rather, this is likely where a subsidy is part of a broader scheme.
750. The foregoing indicates that the scope of the inquiry called for under Article 2.1(a) is not
necessarily limited to the subsidy as defined in Ar ticle 1.1. Although th e subsidy as defined in
Article 1.1 is the starting point of the analysis under Article 2.1(a), the scope of the inquiry is broader
in the sense that it must examine the legislation pur suant to which the granting authority operates, or
the express acts of the granting authority. We note that a granting authority will normally administer
subsidies pursuant to legislation. Thus, we woul d expect that most claims of specificity under
Article 2.1(a) would focus on limitations set out in the legislation pursuant to which the granting
authority operates. Members may design the legal framework for the distribution of subsidies in
many ways. However, the choice of the legal fra mework by the respondent cannot predetermine the
outcome of the specificity analysis. For instance, a Member may choose to authorize the distribution
of subsidies to eligible enterprises or industries in the same legal instrume nt. In such cases, the
inquiry may focus solely on that legal instrument. In other circumstances, a Member may set up a
more complex regime by which the same subsidy is provided to different recipients through different
legal instruments. It may also be that a Member may administer the distribution of subsidies through
multiple granting authorities. In these cases, the in quiry may have to take into account this legal
framework. This framework may be set out in laws , regulations, or other official documents, all of
which may be part of the "legislation" pursuant to which the granting authority operates. We find
support for this reading of "legislation" in Article 2.1(b), which provides that, "{w}here the granting
authority, or the legislation pursuant to which the granting authority operates, establishes objective
criteria or conditions governing the elig ibility for, and the amount of, a subsidy"
1567, these criteria or
conditions "must be clearly spelled out in law, regul ation, or other official document, so as to be
capable of verification".

1567Footnote omitted.
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751. Having said that, the chapeau of Article 2.1 makes it clear that the assessment of specificity is
framed by the particular subsidy f ound to exist under Article 1.1. This means that the assessment of
specificity under Article 2.1 should not examine subs idies that are different from those challenged by
the complaining Member. A subsidy, access to wh ich is limited to "certain enterprises", does not
become non-specific merely because there are other subsidies that are provided to other enterprises
pursuant to the same legislation.
1568
752. Determining whether multiple subsidies are part of the same subsidy is not always a clear-cut
exercise. As we have explained, it requires careful scrutiny of the relevant legislation
—whether set out in one or several instruments—or the pronouncements of the granting authority(ies)
to determine whether the subsidies are provided pursu ant to the same subsidy scheme. Another factor
that may be considered is whether there is an overarching purpose behind the subsidies. Of course,
this overarching purpose must be something more concrete than a vague policy of providing
assistance or promoting economic growth.
753. Once the proper subsidy scheme is identified, th en the question is whether that subsidy is
explicitly limited to "certain ente rprises", defined in the chapeau of Article 2.1 as "an enterprise or
industry or group of enterprises or industries". To be clear, such examination must seek to discern
from the legislation and/or the express acts of the granting authority(ies) which enterprises are eligible
to receive the subsidy and which are not. This inquiry focuses not only on whether the subsidy was
provided to the particular recipients identified in th e complaint, but focuses also on all enterprises or
industries eligible to receive that same subsidy. Thus, even where a complaining Member has focused
its complaint on the grant of a subsidy to one or mo re enterprises or industries, the inquiry may have
to extend beyond the complaint to determine what othe r enterprises or industries also have access to
that same subsidy under that subsidy scheme.
754. We further recall that an assessment of specificity may not end with a consideration of
Article 2.1(a). The Appellate Body has cautioned against examining specificity on the basis of the
application of a particular subpa ragraph of Article 2.1 "when the potential for application of other
subparagraphs is warranted in the light of the nature and content of measures challenged in a

1568In EC and certain member Stat es – Large Civil Aircraft , the Appellate Body was faced with the
question of whether the panel's specificity analysis should have focused on the challenged research and
technological development ("R&TD") grants to the aeronautics sector, or on the broader European-wide R&TD
programme pursuant to which these grants were issued. The Appellate Body stated that it did not consider that
explicit limitations on access to a subsidy to entities active in one sector of the economy will necessarily yield a
finding of non-specificity under Article 2.1(a) simply because separate groupings of entities have access to other
pools of funding under that programm e. The Appellate Body added that, "if access to the same subsidy is
limited to some grouping of enterprises or industries, an investigating authority or panel would be required to
assess whether the eligible recipients can be collectively defined as 'certain enterprises'." (Appellate Body
Report, EC and certain member States – Large Civil Aircraft, para. 949)
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particular case".
1569 Thus, following an assessment under Article 2.1(a), a panel must also consider
whether Article 2.1(b) and/or Article 2.1(c) are applicable.
755. The European Union's claim on appeal centr es on the proposition that the term "granting
authority" in Article 2.1 can refer to only the authority that provides the challenged subsidy.
756. As we have explained, the analysis under Article 2.1 focuses on ascertaining whether access
to the subsidy in question is limited to a particular class of eligible recipients. While the scope and
operation of the granting authorit y is relevant to the question of whether such an access limitation
with respect to a particular class of recipients exis ts, it is important to keep in mind that it is not the
purpose of a specificity analysis to determine whether the authorities involved in granting the
subsidies constitute a single subsidy grantor or several grantors.1570
757. A limitation on the access to the subsidy (o r the absence of one) may result from the
legislation pursuant to which the granting author ity operates or from pronouncements or other actions
of the granting authority. There may be a broad le gislative framework and several authorities that are
involved in its implementation; it is also conceiva ble that one granting authority administers several
specific programs. Thus, regardless of how a co mplainant frames the subsidy measure it seeks to
challenge, a panel must examine the broader legal framework pursuant to which the particular subsidy
is granted and the relevant granting authorities opera te. In this way, a panel can determine how a
challenged measure operates, and whether one or mo re instruments or authorities individually or
collectively limit access to a subsidy to particular recipients within the meaning of Article 2.1.
758. The European Union also asserts that the scope of the inquiry is constrained by the distinction
drawn in Article 2.1(a) between the granting author ity and the legislation pursuant to which that
granting authority operates. The European Union emphasizes that specificity under Article 2.1 may
be assessed either from the perspective of "the gran ting authority" or from the perspective of "the
legislation pursuant to which the granting authority operates".1571

1569Appellate Body Report, US – Anti-Dumping and Countervailing Duties (China) , para. 371;
Appellate Body Report, EC and certain member States – Large Civil Aircraft, para. 945.
1570Whether the entire US Government, the President, or each agency or department involved should be
deemed a "granting authority" within the meaning of Artic le 2.1(a) is not dispositive of the question of whether
access to patent rights are expressly limited to specific groups of subsidy recipients. We note, in this respect,
that the Panel itself ultimately decided the question of whether the allocation of patent rights is specific based on
the relevant legislative acts and regulations; its views on whether NASA, the USDOD, the US President, or the
US Government were a single or several granting authorities were not determinative for its finding of non-
specificity.
1571European Union's appellant's submission, para. 77.
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759. We do not see such a mutually exclusive choice established in Article 2.1. Nor do we think
that the use of the word "or" in Article 2.1(a) wa rrants such a reading. In the majority of cases
involving an allegation of an express limitation, the alleged limitation will be reflected in the
legislation pursuant to which the granting authority ope rates. It is difficult to conceive of many
situations in which an express limitation can be identified from the decisions or actions of the granting
authority where it is not explicit in the corresponding legislation. Furthermore, even where the focus
is on the pronouncements or actions of the granting authority, these pronouncements or actions would
have to be examined in the light of the corresponding legislation. For this reason, it is our view that
the assessment of specificity under Article 2.1 s hould not proceed on the basis of a binary choice
between looking at the granting authority or looking at the legislation pursuant to which that granting
authority operates. Rather, the assessment should norma lly look at both. At the same time, we agree
that, once a panel has analyzed both elements, it ma y consider, in the circumstances of a given case,
that the question of specificity or non-specificity can be more appropriately resolved on the basis of
the pronouncements or actions of the granting auth ority or the legislation pursuant to which the
authority operates.
760. In sum, the granting authority (which may amount to a number of such authorities) and the
legislation pursuant to which such granting authority( ies) operate(s) must be assessed within the legal
framework of the WTO Member concerned at va rious levels of government, legislation, and
regulation. Thus, we do not believe that the Panel erred in the inte rpretation of Article 2.1 of the
SCM Agreement by assessing the alleged subsidies provided by NASA and the USDOD against the
legal framework that exists in the United States fo r the allocation of patent rights under government
R&D contracts and agreements and pursuant to which these granting authorities operate.
Accordingly, we reject this aspect of the European Union's appeal.
E. Did the Panel Err in the Application of Article 2.1(a) of the SCM Agreement?
761. The European Union also alleges that the Panel erred in the application of Article 2.1(a) of the
SCM Agreement to the relevant NASA and USDOD measures. The arguments put forward by the
European Union in this part of its appeal are di rected at demonstrating that the Panel should have
considered NASA and the USDOD to be the granti ng authorities for purposes of the analysis of
specificity. We have explained above that, in our view, the question of whether one or more granting
authorities exist is not dispositive of and does not exhaust the analysis of whether a subsidy is
specific. In the analysis that follows, we examine whether, assuming the allocation of patent rights
under NASA/USDOD contracts and agreements is in some respects a self-standing subsidy, access to
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such subsidy is explicitly limited to certain en terprises in the light of the interpretation of
Article 2.1(a) of the SCM Agreement that we have set out above.
762. The United States has explained that, under its pa tent regime, the inventor is the initial owner
of any rights to his/her inventions.
1572 A person that obtains a patent is authorized "to prevent all
other entities from exploiting the technologies claimed by the patent", and the patent holder is
"allow{ed} … to license the technology to others in exchange for compensation". 1573 M o r e
specifically, the US patent regime accords the patent holder the right to "exclude others from making,
using, offering for sale, or selling" the invention in the United States, or "importing" the invention into
the United States, for a limited period of time (cur rently, a minimum of 20 years from the date of
application).
1574 In addition, a patent holder has the right to assign, or transfer by succession, the
patent and to conclude licensing contracts with third parties.1575
763. The European Union's claims on appeal concern a particular aspect of the US patent regime,
namely, the allocation of patent rights when an i nvention is discovered in the course of R&D work
being performed by an enterprise under a contract or agreement with the US Government, and more
particularly with NASA and the USDOD.
764. As regards this aspect of the US patent regime , the Panel explained that, prior to 1980, the
US Government had a general policy of taking all rights to patents over inventions produced by
contractors under federally funded R&D contracts (a nd then granting non-exclusive licences to any
applicant, including the contractor, that wished to use the subject invention). 1576 In 1980, the
government changed its policy, and started allowing government contr actors to retain ownership of
patents over any invention that they produced w ith federal funding under R&D contracts (with the
government receiving a "government use" licence to use the subject invention without having to pay
the contractor any royalties).1577 This new government policy was implemented through the following
legal instruments, which are discussed in more detail below1578:

1572United States' response to questioning at the oral hearing.
1573Panel Report, para. 7.1285.
1574Panel Report, para. 7.1285 (quoting European Communities' first written submission to the Panel,
para. 812 (referring to United States Code , Title 35, section 154(a)(2) (Panel Exhibit EC-562), and
section 271(a) (Panel Exhibit EC-563)).
1575Panel Report, para. 7.1285.
1576Panel Report, para. 7.1277 (referring to Europ ean Communities' first written submission to the
Panel, para. 806; and United States' first written submission to the Panel, para. 314).
1577Panel Report, para. 7.1277.
1578See Panel Report, para. 7.1278.
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(a) the Bayh-Dole Act, which was adopted in 1980 and which is codified at Title 35 of
the United States Code, sections 200-212 (entitled "Paten t Rights in Inventions Made
with Federal Assistance")
1579;
(b) the 1983 Presidential Memorandum to the heads of Executive departments and
agencies (entitled "Government Patent Polic y") that extended the scope of the policy
to all government contractors, regardless of size and profit/non-profit status1580;
(c) the 1987 Executive Order (entitled "Facilitating access to science and technology")
into which the terms of the 1983 Presi dential Memorandum were eventually
incorporated1581;
(d) the corresponding general federal regulations implementing the Bayh-Dole Act, the
1983 Presidential Memorandum, and the 1987 Executive Order, which are codified at
Title 48 of the United States Code of Federal Regulations , sections 27.300-27.306
(entitled "Patent Rights Under Government Contracts")1582; and
(e) the NASA-specific regulations (entitled "Patents and Other Intellectual Property
Rights", with subpart 1 entitled "Patent Waiver Regulations") codified at Title 14 of
the United States Code of Federal Regulations, section 1245.1583
765. Under the Bayh-Dole Act, the new policy initially applied only to non-profit organizations
and small business firms . The objectives pursued by the Bayh-Dole Act are described in the
legislation as follows:
Policy and objective.
It is the policy and objective of the Congress to use the patent system
to promote the utilization of inventions arising from federally
supported research or development; to encourage maximum
participation of small business firm s in federally supported research
and development efforts; to promote collaboration between
commercial concerns and nonpro fit organizations, including
universities; to ensure that inventions made by nonprofit
organizations and small business firms are used in a manner to
promote free competition and enterprise without unduly encumbering
future research and discovery; to promote the commercialization and
public availability of inventions made in the United States by

1579Supra, footnote 243.
1580Supra, footnote 244.
1581Supra, footnote 245.
1582Panel Exhibit EC-559.
1583Panel Exhibit EC-572.
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United States industry and labor; to ensure that the Government
obtains sufficient rights in federally supported inventions to meet the
needs of the Government and protect the public against nonuse or
unreasonable use of inventions; and to minimize the costs of
administering policies in this area.
1584
766. As for the allocation of patent rights, the Bayh-Dole Act provides, in relevant part:
Disposition of rights.
(a) Each nonprofit organization or small business firm may, within
a reasonable time after disclosure as required by paragraph (c)(1) of
this section, elect to retain title to any subject invention … { 1585}
…
(c)(4) With respect to any inve ntion in which the contractor elects
rights, the Federal agency shall have a nonexclusive, nontransferable,
irrevocable, paid-up license to practice or have practiced for or on
behalf of the United States any subject invention throughout the
world: Provided, That the funding agreement may provide for such
additional rights, including the right to assign or have assigned
foreign patent rights in the subject invention, as are determined by
the agency as necessary for m eeting the obligations of the
United States under any treaty, international agreement, arrangement
of cooperation, memorandum of understanding, or similar
arrangement, including military ag reements relating to weapons
development and production.
1586

1584United States Code, Title 35, section 200 (Panel Exhibit EC-558).
1585United States Code, Title 35, section 202(a). This disposition of rights is subject to the following:
That a funding agreement may provide ot herwise (i) when the contractor is
not located in the United States or does not have a place of business located
in the United States or is subject to the control of a foreign government, (ii)
in exceptional circumstances when it is determined by the agency that
restriction or elimination of the right to retain title to any subject invention
will better promote the policy and objectives of this chapter, (iii) when it is
determined by a Government authority which is authorized by statute or
Executive order to conduct foreign intelligence or counterintelligence
activities that the restriction or elimination of the right to retain title to any
subject invention is necessary to protect the security of such activities, or
(iv) when the funding agreement includes the operation of a Government-
owned, contractor-operated facility of the Department of Energy primarily
dedicated to that Department's naval nuclear propulsion or weapons related
programs and all funding agreement limitations under this subparagraph on
the contractor's right to elect title to a subject invention are limited to
inventions occurring under the above two programs of the Department of
Energy. The rights of the nonprofit organization or small business firm shall
be subject to the provisions of paragraph (c) of this section and the other
provisions of this chapter.
(Ibid.)
1586United States Code, Title 35, section 202(a) and (c)(4) (Panel Exhibit EC-558).
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767. The policy concerning allocation of patent rights introduced in the Bayh-Dole Act was
subsequently expanded by President Ronald Reagan to all government contractors. The expansion of
the policy's coverage was effected through the 1983 Presidential Memorandum and the 1987
Executive Order. The 1983 Presidential Memorandum reads as follows:
THE WHITE HOUSE
WASHINGTON
February 18, 1983
MEMORANDUM TO THE HEADS OF EXECUTIVE
DEPARTMENTS AND AGENCIES
SUBJECT: GOVERNMENT PATENT POLICY
To the extent permitted by law, agency policy with respect to the
disposition of any invention made in the performance of a federally-
funded research and development contract, grant or cooperative
agreement award shall be the same or substantially the same as
applied to small business firm s and nonprofit organizations under
Chapter 38 of Title 35 of the United States Code.
In awards not subject to Chapter 38 of Title 35 of the United States
Code, any of the rights of the Government or obligations of the
performer described in 35 U.S.C. 202-204 may be waived or omitted
if the agency determines (1) that the interests of the United States and
the general public will be better served thereby as, for example,
where this is necessary to obtain a uniquely or highly qualified
performer; or (2) that the award i nvolves co-sponsored, cost sharing,
or joint venture research and development, and the performer, co-
sponsor or joint venturer is making substantial contribution of funds,
facilities or equipment to the work performed under the award.
In addition, agencies should protect the confidentiality of invention
disclosure, patent applications a nd utilization reports required in
performance or in consequence of aw ards to the extent permitted by
35 U.S.C. 205 or other applicable laws.
1587
768. The objectives pursued by the 1983 Presidentia l Memorandum are described in a Fact Sheet
attached to the Memorandum, which states, in relevant part:
FACT SHEET
Inventions developed under G overnment support constitute a
valuable national resource. With appropriate incentives, many of
these inventions will be further developed commercially by the
private sector. The new products and processes that result will
improve the productivity of the U.S. economy, create new jobs, and

1587Supra, footnote 244.
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improve the position of the U.S. in world trade. The policy
established by the Memorandum is designed to provide such
incentives.
Experience has shown that, in most instances, allowing inventing
organizations to retain title to i nventions made w ith Federal support
is the best incentive to obtain the risk capital necessary to develop
technological innovations. The new policy provides that, with limited
exceptions, the inventing organizations may retain title to the
invention, subject to license right s in the Government which will
enable the Government to use the invention in its own programs. ...
To the extent permitted by law, this Memorandum is applicable to all
statutory programs including those that provide that inventions be
made available to the public. Those agencies, such as National
Aeronautics and Space Administration and the Department of
Energy, which continue to operate under statutes which are
inconsistent in respects with the Memorandum, are expected to make
maximum use of the flexibility available to them to comply with the
provisions and spirit of the Memorandum.
1588 (emphasis added)
769. The Executive Order of 1987 instructs the heads of each Executive department and agency to:
... promote the commercialization, in accord with {the 1983
Presidential} Memorandum to the He ads of Executive Departments
and Agencies of February 18, 1983, of patentable results of federally
funded research by granting to all contractors, regardless of size, the
title to patents made in whole or in part with Federal funds, in
exchange for royalty-free use by or on behalf of the
government{.}
1589
770. The general regulations, which apply to the USDOD, and the NASA-specific regulations are
described in turn below.
771. The allocation of rights over inventions disc overed during the course of work performed for
the USDOD is determined by sections 27.300-27.306 of Title 48 of the United States Code of Federal
Regulations, which give effect to the 1983 Presidentia l Memorandum and the 1987 Executive Order.
Section 27.302(b) of Title 48 of the United States Code of Federal Regulations provides:
Under the policy set for in {the Bayh-Dole Act, the 1983 Presidential
Memorandum, and 1987 Executive Order}, each contractor may,
after disclosure to the Government as required by the patent rights
clause included in the contract, elect to retain title to any invention
made in the performance of work under the contract.
1590

1588Supra, footnote 244.
1589Supra, footnote 245, section 1(b)(4).
1590Panel Exhibit EC-559.
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772. This means that the contractor may file a patent application over the invention and exercise all
rights that this entails. The regulations, however, provide that the US Government shall receive at
least a non-exclusive, non-transferable, irrevocable, paid-up license to practice, or have practiced for
or on behalf of the United States, any subject invention throughout the world.
1591 The government
also obtains "march-in" rights, which empower th e federal department or agency to compel the
contractor, in certain limited circumstances, to grant a license to applicants on terms that are
reasonable under the circumstances, or to grant the license itself. 1592 The Panel, however, observed
that "{n}o U.S. government department or agency has ever exercised these march-in rights for any
patent under any contract."1593
773. The same regulations that apply to the USDOD apply to all other US Government
departments and agencies, with the exception of NASA, which has its own regulations.1594
774. Under the Space Act, the legislation that creat ed NASA, the rights over inventions discovered
in the course of work performed under a contract with NASA belong to the United States. The Space
Act is codified in Title 42 of the United States Code. Section 2457(a) of Title 42 provides:
(a) Exclusive property of United States; issuance of patent
Whenever any invention is made in the performance of any work
under any contract of the Administration, and the Administrator
determines that—
(1) the person who made the invention was employed or
assigned to perform research, devel opment, or exploration work and
the invention is related to the work he was employed or assigned to
perform, or that it was within the scope of his employment duties,
whether or not it was made during working hours, or with a
contribution by the Government of the use of Government facilities,
equipment, materials, allocated f unds, information proprietary to the
Government, or services of Government employees during working
hours; or

1591The US Government may require additional rights in order to comply with treaties or other
international agreements. In such cases, these rights shall be made a part of the contract. ( United States Code of
Federal Regulations, Title 48, section 27.302(c) (Panel Exhibit EC-559))
1592Panel Report, para. 7.1286 (referring to Europ ean Communities' first written submission to the
Panel, para. 814, in turn referring to United States Code, Title 35, section 203(a) (Panel Exhibit EC-558)).
1593Panel Report, para. 7.1286 (referring to Europ ean Communities' first written submission to the
Panel, para. 814).
1594We explain below why, despite the formal differences, we consider NASA's regulations to be
functionally equivalent to those applicable to other government departments and agencies.
At the oral hearing, the United St ates noted that there are specific re gulations that apply to research
funded by the US Department of Energy. Nonetheless, it has not been claimed before the Panel or in this appeal
that those regulations provide a basis for a finding of specificity with respect to the allocation of patent rights
under the NASA or USDOD measures.
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(2) the person who made the invention was not employed or
assigned to perform research, devel opment, or exploration work, but
the invention is nevertheless related to the contract, or to the work or
duties he was employed or assigned to perform, and was made during
working hours, or with a contribution from the Government of the
sort referred to in clause (1),
such invention shall be the exclus ive property of the United States,
and if such invention is patentable a patent therefor shall be issued to
the United States upon application made by the Administrator, unless
the Administrator waives all or any part of the rights of the
United States to such invention in conformity with the provisions of
subsection (f) of this section.
1595
775. The waiver of patent rights is addressed in subsection 2457(f) of Title 42 of the United States
Code, which reads:
(f) Waiver of rights to inventi ons; Inventions and Contributions
Board
Under such regulations in conform ity with this subsection as the
Administrator shall prescribe, he may waive all or any part of the
rights of the United States under this section with respect to any
invention or class of inventions ma de or which may be made by any
person or class of persons in the performance of any work required
by any contract of the Administration if the Administrator determines
that the interests of the United St ates will be served thereby. Any
such waiver may be made upon such terms and under such conditions
as the Administrator shall determine to be required for the protection
of the interests of the United Stat es. Each such waiver made with
respect to any invention shall be subject to the reservation by the
Administrator of an irrevocable , nonexclusive, nontransferable,
royalty-free license for the practice of such invention throughout the
world by or on behalf of the United States or any foreign government
pursuant to any treaty or agreemen t with the United States. Each
proposal for any waiver under this subsection shall be referred to an
Inventions and Contributions Board which shall be established by the
Administrator within the Administra tion. Such Board shall accord to
each interested party an opportunity for hearing, and shall transmit to
the Administrator its findings of fact with respect to such proposal
and its recommendations for action to be taken with respect
thereto.
1596

1595Panel Exhibit EC-571.
1596Panel Exhibit EC-571.
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776. The procedures for the waiver of patent rights are further elaborated in NASA's regulations.
These regulations describe the policy objectives of the waiver as follows:
Policy.
(a) In implementing the provisions of section 305(f) of the
National Aeronautics and Space Act of 1958, as amended (42 U.S.C.
2457(f)), and in determining when th e interests of the United States
would be served by waiver of all or any part of the rights of the
United States in inventions made in the performance of work under
NASA contracts, the Administrator will be guided by the objectives
set forth in the National Aerona utics and Space Act of 1958, as
amended (42 U.S.C. 2451-2477) and by the basic policy of the
Presidential Memorandum and Stat ement of Government Patent
Policy to the Heads of the Executiv e Departments and agencies dated
February 18, 1983. Among the most important goals are to provide
incentives to foster inventiveness and encourage the reporting of
inventions made under NASA contracts, to provide for the widest
practicable dissemination of new technology resulting from NASA
programs, and to promote early utilization, expeditious development,
and continued availability of this new technology for commercial
purposes and the public benefit. In applying this regulation, both the
need for incentives to draw forth private initiatives and the need to
promote healthy competition in industry must be weighed.
1597
777. NASA regulations allow for requests for waivers to be made at two points in time: "(i) in
advance of the invention, as to any and all of the inventions that may be made under a contract; and
(ii) after the reporting of an invention, subsequent to the invention being made". 1598 Requests for
waivers are examined by the NASA Inventions a nd Contributions Board (the "Board"). The
regulations provide that the Board will "norma lly" recommend that the request for waiver be
granted.1599 Under a waiver, NASA "waives the propert y rights of the United States government" in
the United States and other countries and "conveys to the waiver recipient the entire right, title, and

1597United States Code of Federal Regulations, Title 14, section 1245.103(a) (Panel Exhibit EC-572).
1598Panel Report, para. 7.1287 (referring to United States Code of Federal Regulations , Title 14,
sections 1245.104 and 1245.105 (Panel Exhibit EC-572)).
1599See United States Code of Federal Regulations , Title 14, sections 1245.104(b) and 1245.105(b)(1)
(Panel Exhibit EC-572). NASA's regulations provide that, in certain situations, the Board may reject the waiver
request because it "finds that the interests of the United St ates will be better served by restricting or eliminating
all or part of the rights of the contractor". (Panel Report, para. 7.1289 (quoting United States Code of Federal
Regulations, Title 14, section 1245.104(b) (Panel Exhibit EC- 572))) The regulations then list situations where
this could be the case, namely: (i) when the contractor is not located in the United States or does not have a
place of business in the United States or is subject to the co ntrol of a foreign gove rnment; (ii) when a
determination has been made by the government authority that is authorized by statute or Executive order to
conduct foreign intelligence or counterintelligence activities that the restriction or elimination of the right to
retain title to any inventions made in the performance of work under the co ntract is necessary to protect the
security of such activities; or (iii) where the Board finds that exceptional circumstances exist, such that
restriction or elimination of the right to retain title will better promote certain objectives. ( United States Code of
Federal Regulations, Title 14, section 1245.104(b) (Panel Exhibit EC-572)) See also, section 1245.105(b)(1)
(Panel Exhibit EC-572).
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interest in and to each invention".
1600 There is evidence on record indicating that NASA routinely
grants waivers when requested.1601
778. It is undisputed that, within the framework of the US patent regime, NASA's patent waiver
regulations are formally different and separat e from the regulations that apply to other
US Government departments or agencies. While on e set of regulations concerning the allocation of
patent rights applies to other government departme nts and agencies, the regulations described above
are specific to NASA. There are also differenc es in how the regulati ons operate. Under the
legislation and general regulations that apply to other departments and agencies, a contractor may
"elect to retain title" in the invention. 1602 By contrast, NASA's statutory framework provides that title
to any invention initially rests on the government, but NASA can waive title upon request.
779. However, the waiver provisions of the NASA regul ations are linked to the broader legislative
and regulatory framework established under the Bayh-Dole Act, the 1983 Presidential Memorandum,
and the 1987 Executive Order. More specifically, th e record indicates that the flexibility provided
under the waiver provisions has been used to gi ve effect to the 1983 Presidential Memorandum and
the 1987 Executive Order. For example, as noted above, the Fact Sheet explaining the 1983
Presidential Memorandum states that "agencie s, such as National Aeronautics and Space
Administration ... are expected to make maximum u se of the flexibility available to them to comply
with the provisions and spirit of the Memorandum". 1603 NASA's regulations provide that, in making
waiver determinations, NASA's Administrator will be guided by the objectives of the Space Act of
1958 and "by the basic policy of the Presidential Memorandum and Statement of Government Patent
Policy to the Heads of the Executive Departments and agencies dated February 18, 1983".1604
780. Moreover, the result of a waiver of patent ri ghts by NASA would appear to be the same as
where a contractor elects to retain title under the ge neral regulations. Whether a contractor requests a
waiver under the NASA regulations, or the contr actor elects to retain title under the general

1600NASA, Instrument of Waiver (Domestic and Foreign Rights), Structures and Materials Technology
for Aerospace Vehicles (Panel Exhibit EC-1 227), para. 1. This language is us ed where it is an advance waiver.
The standard contract clauses used by NASA in relation to the issue of patent rights are contained in
United States Code of Federal Regulations , Title 48, section 52.227-12 (Patent Rights – Retention by the
Contractor), and section 1852.227-70 (New Technology).
1601The Panel noted that the study, which was conducted by the National Bureau of Economic
Research, stated that, by the early 1980s, patent "waivers were essentia lly automatically granted" by NASA.
(Panel Report, para. 7.1289 (referring to National Bureau of Economic Research, "Evidence from Patents and
Patent Citations on the Impact of NASA and other Federal Labs on Commercial Innovation" (May 1997) (Panel
Exhibit EC-574), p. 8))
1602Panel Report, para. 7.1291 (quoting United States Code, Title 35, sections 200-212 (Patent Rights in
Inventions Made with Federal Assistance) and section 202(a) (Panel Exhibit EC-558)).
1603See supra, para. 768.
1604See supra, para. 776.
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regulations applicable to the USDOD, the contr actor in both instances will obtain title to the
invention, that is, will be able to claim sole owne rship over it. As the titleholder, the contractor can
exploit the invention commercially, for instance, by licensing the technology or incorporating it into
its own products, without having to pay any royalties to the government. The contractor may also file
for a patent that will give it the right to prev ent others from using the technology without its
permission.
1605 The government, for its part, obtains the ri ght to use the invention free of charge for
government use. The key point is that, both und er the general regulations, which apply to the
USDOD and other departments, and under a NASA waiver, ownership rights (title) over the invention
will belong solely to the contractor through the allocation of patents under NASA and USDOD
contracts and agreements, even though the mechanis m for the initial allocation of patent rights is
formally somewhat different.
781. At the oral hearing, the European Union explaine d that its claim of specificity is "the explicit
limitations in the types of R&D that NASA a nd {US}DOD could fund, and consequently the
enterprises that could benefit from the patent waiv ers and transfers for inventions deriving from the
R&D".1606
782. The thrust of the European Union's argumen t is that, because aerospace companies are the
only ones eligible to receive NASA and USDOD f unding, the patents that may result under the
NASA/USDOD R&D contracts and agre ements must also be specific. We have explained above,
however, that the allocation of patent rights under NASA/USDOD contracts and agreements is a
reflection of the broader legislative and regulatory fra mework that applies to the allocation of patent
rights in US Government R&D contracts and agreem ents. This legislative and regulatory framework
is set out in the Bayh-Dole Act and then extended to large and medium businesses by the 1983
Presidential Memorandum, the 1987 Executive Or der, and the general and NASA-specific
regulations. Once the legal framework for the allo cation of patent rights under R&D contracts and
agreements with the government is taken into account , it becomes clear that the eligibility to receive
the alleged subsidy is not limited to the class of enterprises that conducts aerospace R&D.
783. The European Union also argues that the patent rights allocated in this case are a feature of
the R&D contracts and agreements entered into between NASA/USDOD and Boeing.
1607 T h e
European Union explains that, in the same way th at it is not the US Government as a whole that
provides the R&D funding and support for NASA/USDOD R&D, it is also not the US Government as

1605See Panel Report, para. 7.1285.
1606European Union's oral statement at the first session of the oral hearing.
1607European Union's appellant's submission, paras. 82 and 90.
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a whole that waives/transfers the patent rights resulting from those same contracts.
1608 We have
rejected above the European Union's argument that th e analysis of specificity must be limited to the
authority actually granting the alleged subsidy—in this case, NASA or the USDOD—in isolation
from the legislative and regulatory framework within which it operates. The retention of title by
contractors, under the USDOD regulations, and th e waiver of patent rights, under the NASA
regulations, are based on a broader US legisla tive and regulatory framework pursuant to which
enterprises that perform R&D work for the US G overnment get to enjoy the patent rights over
inventions discovered.
784. As regards NASA, the European Union emphasiz es that "the Panel specifically found that
NASA has its own specific legislation and regulations related to patent waivers". 1609 T h e
European Union asserts that the Space Act and its im plementing regulations constitute "the legislation
pursuant to which the granting authority operates", within the meaning of Article 2.1(a) of the
SCM Agreement1610, and adds that the Space Act explicitly limits the scope of NASA's aeronautics
R&D activities to aeronautics and space. We have explained above that the Space Act and NASA's
regulations cannot be viewed in isolation but, rath er, should be viewed against the broader framework
of legislation and regulations setting out the po licy for the allocation of patent rights under
government R&D contracts. Even if only certain enterprises perform aerospace research, and thus
would enter into contracts or agreements with NASA, this has to be analyzed in the broader context,
in which patent rights are also allocated to cont ractors under all R&D contr acts and agreements with
other government departments and agencies.1611
785. The European Union additionally points out that, "when NASA waives patent rights, it does
so in response to a request". 1612 As noted in the previous paragraph, the waiver cannot be considered
in isolation from the general US legislative and re gulatory framework that ap plies to all enterprises
that perform work for all departments and agencies of the federal government. The fact that NASA
patent waivers are granted only upon request does not change our assessment.

1608European Union's appellant's submission, paras. 82 and 90.
1609European Union's appellant's submission, para. 80 (referring to Panel Report, paras. 7.1287-7.1289).
1610European Union's appellant's submission, para. 81.
1611We recall that the Panel found that:
... the allocation of patent rights is uniform under all U.S. government R&D
contracts, agreements, and grants, in respect of all U.S. government
departments and agencies, for all enterpri ses in all sectors. In all cases, the
contractor/partner/recipient owns any inventions (i.e. patent rights) that it
conceives in the course of performing research funded by the U.S.
Government; however the U.S. Go vernment receives a royalty-free,
"government use/purpose" license to use the subject invention.
(Panel Report, para. 7.1276)
1612European Union's appellant's submission, para. 83 (referring to Panel Report, para. 7.1287). See
also Panel Report, para. 7.1288.
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786. Turning to the USDOD, the European Union st ates that, "as the entity that grants the R&D
contracts, {US}DOD need not waive or grant rights in favour of a contractor to inventions arising
from {US}DOD-funded contracts."
1613 There are three shortcomings in the European Union's
argument. First, the authority of the USDOD to "r emove" a contractor's ability to keep title to any
inventions would appear to be more limited than sugg ested by the European Union. This authority is
to be exercised only in "exceptional circumstances". 1614 Second, this authority applies to all
US Government departments and agencies. 1615 Third, the European Union has not asserted that the
USDOD exercised this authority in a manner that re sulted in limiting the alleged subsidy to certain
enterprises.1616
787. During the oral hearing, the participants referre d to the findings of the Appellate Body in
US – Anti-Dumping and Countervailing Duties (China) and in EC and certain member States – Large
Civil Aircraft.1617 In US – Anti-Dumping and Countervailing Duties (China), China argued that it was
undisputed that State-owned commercial banks al so provided loans to the industries under the
"permitted" category that encompassed "the entire ra nge of economic activity in China that {did} not
fall within the {encouraged, restricted and eliminated} categories". 1618 The Appellate Body, however,
observed that the panel had not found that the pr ojects/industries under the "permitted" category were
eligible to receive the same loans as the "encouraged" projects/industries.1619 By contrast, in this case,
the Panel has made an explicit finding that "the allocation of patent rights is uniform under all
U.S. government R&D contracts, agreements, an d grants, in respect of all U.S. government
departments and agencies, for all enterprises in all sectors". 1620 In EC and certain member States –
Large Civil Aircraft, the basis for the finding of specificity was that the funding under the
EC Framework Programmes was divided into separate compartments, and each compartment targeted

1613European Union's appellant's submission, para. 88 (referring to Panel Report, para. 7.1291).
1614Panel Report, para. 7.1291 (referring to United States Code , Title 35, section 202(a)(ii) (Panel
Exhibit EC-558)). See also United States' appellee's submission, para. 144.
1615See Panel Report, paras. 7.1291 and 7.1292. See also United States' appellee's submission,
para. 144.
1616European Union's responses to questioning at the oral hearing.
1617Neither participant has asserted that the factual ci rcumstances of this case are similar to those in US
– Anti-Dumping and Countervailing Duties (China) or EC and certain member States – Large Civil Aircraft.
1618Appellate Body Report, US – Anti-Dumping and Countervailing Duties (China), para. 382 (quoting
China's appellant's submission in that appeal, para. 241).
1619Appellate Body Report, US – Anti-Dumping and Countervailing Duties (China), para. 385. In that
case, the Appellate Body also noted that the United St ates had expressed disagreement with China's assertion
that it was an "undisputed fact" that the industries falling under the "permitted" category received loans from
State-owned commercial banks, arguin g that, according to Article 13 of the Implementing Regulation of the
11th Five-Year Plan (2006-2010), the "permitted" category was expressly excluded from the Guiding Catalogue
of the Industrial Restructuring (2005) and, therefore, from the Government of China's policy priorities for
lending. (Ibid., footnote 326 thereto (referring to United States' responses to questioning at the oral hearing in
that appeal))
1620Panel Report, para. 7.1276.
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certain enterprises. In the case before us, the allocation of patent rights or waivers under the
NASA/USDOD contracts and agreements operates w ithin the legislative and regulatory framework
that applies to R&D activities performed by all enterprises for US Government departments and
agencies. Thus, the patent rights alloca tion in this case does not present the same
"compartmentalization" of funding to aeronau tics R&D as under the EC Framework Programmes at
issue in EC and certain member States – Large Civil Aircraft.
1621
788. An additional argument of the European Union is that "an interpretation of Article 2.1 that
looks to government-wide policies of a Member, ra ther than the actions and legislation of the
authority that actually provides the subsidy, could frustrate the object and purpose of the
SCM Agreement, i.e. 'to impose multilateral disciplines on subsid ies which distort international trade'
in goods".
1622 As explained above, our analysis is not based on "a government-wide policy" but,
rather, it is focused on the legislative and regulat ory framework regulating the allocation of patent
rights arising from R&D funded by the US Government. The European Union's contention also
ignores the fact that a general legislative framewo rk may be administered by a number of granting
authorities and that authority-specific regulations may merely be measures implementing the broader
legislation pursuant to which those authorities operate. The SCM Agreement imposes disciplines on
subsidies that are specific to a particular class (t hat is, certain enterprises). Where a legislative
framework exists that does not explicitly limit the eligibility of the subsidy to a certain class of
enterprises or industries, as is the case here, it is not the type of subsidy that the drafters intended to
make "specific" under Article 2.1(a) of the SCM Agreement. Thus, we cannot see how the object and
purpose of the SCM Agreement would be frustrated.
789. In sum, proceeding on the Panel's assumption that the allocation of patent rights is in some
respects a self-standing subsidy that is separate from the payments and other support provided under
the NASA/USDOD contracts and agreements to the extent that such self-standing subsidy could exist,
we do not see a basis to find that such subsidy is explicitly limited to certain enterprises, and therefore
specific within the meaning of Article 2.1(a) of the SCM Agreement.

1621Appellate Body Report, EC and certain member States – Large Civil Aircraft , para. 948. In that
dispute, "each of the EC Framework Programmes appear{ed} to divide up funding into those research areas that
are sector-specific—such as the allo cations to 'aeronautics' and 'aeronau tics and space'—and those that {were}
'of a general horizontal nature, potentially cutting across a variety of business segments'. Thus, each
EC Framework Programme target{ed} funding to economic activities "at both horizontal and sector specific
levels". ( Ibid. (quoting and referring to Panel Report, EC and certain member States – Large Civil Aircraft ,
paras. 7.1517, 7.1526, 7.1536, 7.1546, and 7.1557))
1622European Union's appellant's submission, para. 76 (quoting, inter alia , Panel Report, Brazil –
Aircraft, para. 7.26).
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F. Did the Panel Err by Failing to Address the European Communities' Allegation of
De Facto Specificity under Article 2.1(c)?
790. The European Union argues that the Pane l erred by failing to adjudicate the
European Communities' arguments of de facto specificity under Article 2.1(c) of the
SCM Agreement.
1623 The European Union explains that NASA and the USDOD have some discretion
in deciding to allocate patent rights to contractors, and whether to enter into the R&D contracts in the
first place. This means, according to the Eu ropean Union, that, "even if there is no de jure specificity
under Article 2.1(a) of the SCM Agreement, there is, at a minimum, the considerable potential for
Article 2.1(c) de facto specificity based on how those authorities actually implement the legislation or
policy".1624
791. Before the Panel, the European Communities argued that the allocation of intellectual
property rights under the NASA and US DOD contracts and agreements is de jure specific within the
meaning of Article 2.1(a). 1625 The European Communities also put forward arguments of de facto
specificity under Article 2.1(c) "{s}hould th e Panel consider NASA and {US}DOD intellectual
property right waivers/transfers not to be specific under Article 2.1(a)". 1626 T h e
European Communities based its claim of spec ificity under Article 2.1(c) on the alleged
"disproportionate" amount of NASA contracts ente red into and USDOD funding received by Boeing.
More specifically, the European Communities argued as follows:
Boeing has received a disproportionate amount of all contracts
awarded by NASA, including R&D contracts. In particular, from FY
1991 through FY 2004, Boeing has r eceived on average 23.4% of all
NASA contracts awarded, and as much as 31.4% of all such contracts
in FY 1998. Further, Boeing's active participation at the highest
levels of the NASA Advisory C ouncil and its subcommittees reveals
that NASA exercises discretion in granting subsidies in a manner that
takes full account of Boeing's views and needs.
Boeing has also received a disproportionate amount of {US}DOD
RDT&E funding over the years. In particular, from FY 1991 through
FY 2005, Boeing has received on average 12.6% of all {US}DOD
RDT&E awards, and as much as 17.7% of all such funding in FY
2001. Moreover, the European Co mmunities estimates that five top
US aerospace companies—Boeing, Lockheed Martin, Northrop
Grumman, Raytheon, and United Technologies—have received, on
average, 45.2% of total {US}DOD RDT&E funding over this same
period.

1623European Union's oral statement at the first session of the oral hearing.
1624European Union's oral statement at the first session of the oral hearing.
1625European Communities' first written submission to the Panel, para. 852.
1626European Communities' first written submission to the Panel, para. 854.
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In other words, the number of enterprises receiving NASA and
{US}DOD contracts, and the resultant intellectual property right
waivers/transfers, is extremely sm all in relation to the number of
enterprises that enter into contractual relations with the
US Government. Thus, NASA a nd {US}DOD intellectual property
right waivers/transfers are specific within the meaning of
Article 2.1(c) of the SCM Agreement.
1627 (footnotes omitted)
792. In US – Anti-Dumping and Countervailing Duties (China) , the Appellate Body stated that
"{t}he reference in Article 2.1(c) to 'any appear ance of non-specificity' resulting from the application
of Article 2.1(a) and (b) supports the view that th e conduct or instruments of a granting authority may
not clearly satisfy the eligibility requirements of Arti cle 2.1(a) or (b), but may nevertheless give rise
to specificity in fact." 1628 The Appellate Body added that, "{i}n such circumstances, application of
the factors under Article 2.1(c) to factual features of a challenged subsidy is warranted. Since an
'appearance of non-specificity' under Article 2.1(a) and (b) may still result in specificity in fact under
Article 2.1(c) of the SCM Agreement, this reinforces our view that the principles in Article 2.1 are to
be interpreted together." 1629 Based on this, the Appellate Bo dy concluded that "a proper
understanding of specificity under Article 2.1 must allow for the concurrent application of these
principles to the various legal and factual aspects of a subsidy in any given case."1630
793. In this case, the Panel included the European Communities' arguments on de facto specificity
in its summary of the parties' arguments. 1631 However, the Panel did not refer to Article 2.1(c) in its
analysis of the European Communities' claim of specificity. Nor did the Panel provide any
explanation as to why it chose not to address the Eu ropean Communities' claim under Article 2.1(c).
The Panel's analysis is incomplete and cannot be su stained. The principles of Article 2.1 must be
applied concurrently. By its very terms, subparagraph (c) recogni zes that a subsidy may be specific
even where there is an "appearan ce of non-specificity resulting from th e application of the principles
laid down in subparagraphs (a) and (b)". A finding of non-specificity under subparagraphs (a) and (b)
does not provide license to a panel to refrain from examining claims made under subparagraph (c).
The Panel in this case should have at the very least explained the reasons why it rejected the
European Communities' arguments under Article 2.1(c) of the SCM Agreement.
794. The Panel's ultimate conclusion of non-specifi city under Article 2.1 therefore rests on an
incomplete analysis. Thus, while we agree with the Panel that the allocation of patent rights under the
legislative and regulatory framework of the Bayh-Dole Act, the 1983 Presidential Memorandum,

1627European Communities' first written submission to the Panel, paras. 854-856.
1628Appellate Body Report, US – Anti-Dumping and Countervailing Duties (China), para. 370.
1629Appellate Body Report, US – Anti-Dumping and Countervailing Duties (China), para. 370.
1630Appellate Body Report, US – Anti-Dumping and Countervailing Duties (China), para. 371.
1631Panel Report, para. 7.1270.
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the 1987 Executive Order, and general and NASA-speci fic federal regulations, to the extent it could
constitute a self-standing subsidy, is not, in itself, specific under Article 2.1(a) of the SCM Agreement,
we cannot sustain the Panel's overall finding under Article 2.1. We turn to consider ourselves whether
the alleged subsidy is specific under subparagraph (c).
795. We recall that Article 2.1(c) of the SCM Agreement provides:
If, notwithstanding any appearance of non-specificity resulting from
the application of the principles laid down in subparagraphs (a)
and (b), there are reasons to believe that the subsidy may in fact be
specific, other factors may be consider ed. Such factors are: use of a
subsidy programme by a limited number of certain enterprises,
predominant use by certain enterprises, the granting of
disproportionately large amounts of subsidy to certain enterprises,
and the manner in which discretion has been exercised by the
granting authority in the decision to grant a subsidy.
3 In applying
this subparagraph, account sha ll be taken of the extent of
diversification of economic activiti es within the jurisdiction of the
granting authority, as well as of the length of time during which the
subsidy programme has been in operation.
3In this regard, in particular, information on the frequency with which
applications for a subsidy are refused or approved and the reasons for such
decisions shall be considered.
796. The language of Article 2.1(c)—particularly the initial clause "notwithstanding any
appearance of non-specificity resulting from the application of the principles laid down in
subparagraphs (a) and (b)"—indicates that the applic ation of this provision will normally follow the
application of the other two subpa ragraphs of Article 2.1. We recall that the subparagraphs of
Article 2.1 are "principles", and that the Appe llate Body has previously said that a proper
understanding of specificity under Article 2.1 must allow for their concurrent application.1632 Yet, the
structure of Article 2.1 suggests a sequence for their application in which application of the principles
in subparagraphs (a) and (b) precedes the application of the principle in subparagraph (c). In other
words, one will normally reach subparagraph (c) after it has been determined that there are no explicit
limitations as to which enterprises or industries have access to the subsidy.
797. The analysis under Article 2.1(c) proceeds wh ere there are "reasons to believe that the
subsidy may in fact be specific". While a conclusi on that there is "an appearance of non-specificity"
under Article 2.1(a)-(b) does not provide a panel license to refrain from examining claims under
Article 2.1(c), a panel must consider whether, in th e light of the arguments made by the parties, there

1632Appellate Body Report, US – Anti-Dumping and Countervailing Duties (China) , para. 371;
Appellate Body Report, EC and certain member States – Large Civil Aircraft, para. 945.
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are "reasons" for it to believe that an assessmen t under Article 2.1(c) is warranted. These "reasons"
would have to relate to the factors mentioned in subparagraph (c). The panel, in turn, would be
expected to assess objectively the reasons and argume nts provided by the parties. Where the panel
finds that the arguments and evidence submitted by the parties do not sufficiently demonstrate reasons
to indicate specificity under Article 2.1(c), a more exhaustive analysis of the specificity factors set out
in that provision may not be warranted.
798. In this appeal, the European Union has describ ed what it considers to be the discretionary
authority that NASA and the USDOD have with resp ect to the allocation of patent rights. For
example, the European Union has referred to the authority that NASA has to deny a request for a
waiver and to the USDOD's authority to preclude a contractor from electing to retain patent rights
over an invention. Yet, the European Union has not presented or pointed to the evidence on the Panel
record showing that NASA or the USDOD have exercised their discretionary authority in such a
manner. The Panel referred to a study by the Na tional Bureau of Economic Research, according to
which, "by the early 1980s patent 'waivers were essentially automatically granted' by NASA."
1633 At
the oral hearing, the European Union did not dis pute that the USDOD had not exercised its discretion
to preclude a particular contractor from electing to retain title, nor did it assert that NASA had denied
a request for a waiver.
799. Instead, the European Union has sought to sup port its claim under Article 2.1(c) by referring
to the share of NASA contracts and USDOD funding received by Boeing. We recall that the Panel
proceeded on the assumption that the allocation of patent rights is in some respects a self-standing
subsidy that is separate from the payments and other support provided under the NASA/USDOD
contracts and agreements. In the light of this assu mption, any findings that the Panel made as to the
specificity of the payments and other support provided under the NASA/USDOD contracts and
agreements cannot speak to the specificity of the a llocation of patent rights to the extent it constitutes
a self-standing subsidy. Therefore, we are not persuaded that the arguments presented by the
European Union demonstrate that, on the assumpti on that the allocation of patent rights is a
self-standing subsidy, it is, "in fact", specific within the meaning of Article 2.1(c).
800. We recall that we have proceeded on the Pane l's assumption that the allocation of patent
rights is in some respects a self-standing subsidy that is separate from the payments and other support
provided under the NASA/USDOD contracts and ag reements. Proceeding as we have on that
assumption, we have found that, to the extent that such self-standing subsidy exists, such subsidy is

1633Panel Report, para. 7.1289 (quoting National Bureau of Economic Research, "Evidence from
Patents and Patent Citations on the Impact of NASA and other Federal Labs on Commercial Innovation"
(May 1997) (Panel Exhibit EC-574), p. 8).
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not explicitly limited to certain enterprises w ithin the meaning of Article 2.1(a) of the
SCM Agreement. Nevertheless, we have found that th e Panel erred by failing to examine the
European Communities' arguments under Article 2.1( c) and therefore concluded that the Panel's
overall finding under Article 2.1 co uld not be sustained. However, on the basis of these arguments,
we are not persuaded that, on the assumption that the allocation of patent rights is a self-standing
subsidy, it is, "in fact", specific within the meaning of Article 2.1(c) of the SCM Agreement, and thus
decline to make such a finding.
VIII. Washington State Business and Occupation (B&O) Tax Rate Reduction
A. Financial Contribution – Revenue Foregone
801. We next turn to the United States' appeal of the Panel's finding that the reduction in the
Washington State B&O tax rate applicable to commercial aircraft and component manufacturers
1634
under Washington State House Bill 2294 c onstitutes a financial contribution under
Article 1.1(a)(1)(ii) of the SCM Agreement. In subsection 1, we set out a summary of the Panel's
findings. In subsection 2, we consider the circ umstances in which government revenue otherwise due
is foregone within the meaning of Article 1.1(a)(1 )(ii). Finally, in subsection 3, we assess the
United States' claim on appeal.1635
1. The Panel's Findings
802. The Panel reviewed the Appellate Body's reasoning in US – FSC and US – FSC
(Article 21.5 – EC) concerning the administration of tax and the foregoing of government revenue that
is otherwise due within the meani ng of Article 1.1(a)(1)(ii) of the SCM Agreement. The test applied
by the panel in US – FSC involved "examining the situation th at would have existed but for the
measure in question and determining whether there would have been a higher tax liability in the
absence of the measure". 1636 The Panel observed that the Appellate Body in that dispute expressed
some reservations about whether the "but for" test is an appropriate general test that should apply in

1634The Panel referred in its analysis to the tax rate applicable under House Bill 2294 to "manufacturers
of commercial aircraft and components for such aircraft". (Panel Report, para. 7.126) Under section 13(b), this
tax rate applies to businesses engaged in "making sales, at retail or wholesale, of commercial airplanes, or
components of such airplanes, manufactured by that person ". (emphasis added) The tax rate under House Bill
2294 therefore applies to commercial aircraft and component manufacturers, whether they engage in
manufacturing, wholesaling, or retailing activities.
1635Although relevant details concerning the B&O ta x rate reduction for co mmercial aircraft and
component manufacturers set out in House Bill 2294 are described in this section of our Report, Part IV contains
a more detailed description of the challenged measure.
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all situations.
1637 As the Panel further noted, the Appellate Body clarified in US – FSC (Article 21.5 –
EC) that there may be situations where it is possibl e to apply a "but for" test, namely, where the
measure at issue is an "exception" to a "general" rule of taxation. 1638 The Appellate Body noted,
however, that a panel is not always required to iden tify the general rule of taxation, and that, in many
situations, it may be difficult to do so. 1639 On the basis of its review, the Panel summarized its
understanding of the Appellate Body's analysis as s uggesting that, "where it is possible to identify a
general rule of taxation applied by the Member in question, a 'b ut for' test can be applied". 1640 The
Panel added that, "{i}n other situations, the cha llenged taxation measure should be compared to the
treatment applied to comparable income, for taxpayers in comparable circumstances in the jurisdiction
in issue".1641
803. Turning to the B&O tax rate reduction for co mmercial aircraft manufacturing activities, the
Panel concluded that "there is indeed a general ra te of taxation applicable to manufacturing activities
in the State of Washington and that the tax re duction provided to aircraft manufacturing activities
constitutes an exception to this rule".1642 The Panel considered that the Washington State statutory tax
provisions establish a general rule applying a tax rate of 0.484% to "every person engaging … in
business as a manufacturer"1643, as well as certain exceptions from this general rate as set out in other
provisions of the tax code. The Panel furthe r considered that House Bill 2294 provides that
commercial aircraft manufacturing, and the manufactur ing of components for such aircraft, would be
subject to an exceptional tax rate that differed from the general rate of 0.484%. 1644 In particular, the
Panel noted that House Bill 2294 refers to the ta x rate applicable to aircraft and component
manufacturing—0.4235% between 1 October 2005 and 30 June 2007, and 0.2904% thereafter 1645—as
a "preferential tax rate".1646 House Bill 2294 also provides that, if a manufacturer availing itself of the
preferential tax rate fails to submit an annua l report detailing certain employment and wage
information, the Washington State Department of Revenue "shall declare the amount of taxes …
reduced in the case of the preferential {B&O} tax ra te, for that year to be immediately due and

1638Panel Report, para. 7.119 (referring to Appellate Body Report, US – FSC (Article 21.5 – EC) ,
para. 91).
1639Panel Report, para. 7.119 (referring to Appellate Body Report, US – FSC (Article 21.5 – EC) ,
para. 91).
1640Panel Report, para. 7.120.
1641Panel Report, para. 7.120.
1642Panel Report, para. 7.121.
1643Revised Code of Washington , section 82.04.240 (2004) (Panel Exhibit EC-83). The Panel found
that "{s}imilar provisions apply in relation to taxes on wholesaling and retailing activities". (Panel Report,
para. 7.124)
1644Panel Report, paras. 7.125 and 7.126.
1645Panel Report, paras. 7.48 and 7.49.
1646Panel Report, para. 7.126 (quoting House Bill 2294, section 16(2)(a)). Section 16(2)(b) of House
Bill 2294 refers to the rate as a "preferential business and occupation tax rate".
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payable".
1647 The Panel considered that this supported its conclusion that "the reduced rate is an
exceptional rate, and if certain requirements are not met, the amount by which the taxes were reduced
must be repaid".1648
804. The Panel also noted that the United States' written submissions and a number of documents
produced by Washington State refer to four major tax classifications based on the following activities:
manufacturing, wholesaling, retailing, and services. 1649 These four tax classifications "account for
90 percent of total B&O tax liability". 1650 Moreover, the Panel cited a study prepared by the
Washington State Revenue Department that described a "preferential tax rate" for commercial aircraft
and component manufacturers, as compared to the "general tax rate for manufacturing" of 0.484%. 1651
The Panel added that, in other parts of the study, the Washington State Revenue Department refers to
the "normal" or the "general" manufacturing tax rate of 0.484%. 1652 The Panel concluded, therefore,
that the evidence confirmed that there are "gener al" or "normal" B&O tax rates of 0.484% for
manufacturing and wholesaling activities and 0.471% for retailing activities, and that deviations from
these rates are an "exception" or a "preferential rate".1653
805. Having concluded that the challenged tax rate reduction reflects an exception to a general rule
of taxation, the Panel considered it appropriate to determine whether, "but for" the tax rate reduction,
a higher B&O tax rate would otherwise apply to co mmercial aircraft and component manufacturers.
The Panel concluded that, were it not for the "p referential rate" introdu ced by House Bill 2294,
commercial aircraft and component manufacturers would be subject to the rates of 0.484% for
manufacturing and wholesaling activities and 0.471% fo r retailing activities. Accordingly, the Panel

1647House Bill 2294, section 16(2)(b).
1648Panel Report, para. 7.127. The Panel observed that the Final Bill Report concerning House
Bill 2294 stated that, if the reporting requirements were not met, "full taxes" would be immediately due and
payable. (Ibid. (quoting Final Bill Report, House Bill 2294, C1L03E2, undated (Panel Exhibit EC-90), p. 3))
The Panel also cited other documents produced by Washington State that referred to the reduced rate as a
"special" or "preferential" tax rate. ( Ibid., para. 7.128 (referring, respectively, to the Washington Administrative
Code, section 458.20.136 (2000) (Panel Exhibit EC-80) and Washington State's response to Project Olympus
Legal Questionnaire (Schedule 2 of the Project Olympus Master Site Agreement), 3 October 2003 (Panel
Exhibit EC-91)))
1649Panel Report, para. 7.129 (referring to United States' first written submission to the Panel,
para. 430; and Business and Occupation Tax, Revised Code of Washington , section 82.04 (Panel Exhibit
US-179), pp. 97-98). These tax classifications consist of the following: (i) manufacturing (0.484%);
(ii) wholesaling (0.484%); (iii) retailing (0.471%); and (iv) services (1.5%).
1650Panel Report, para. 7.129 (quoting Business and Occupation Tax, Revised Code of Washington ,
section 82.04 (Panel Exhibit US-179), p. 98).
1651Business and Occupation Tax – Differential Tax Rates, Revised Code of Washington, section 82.04
(Panel Exhibit US-191), description of section 82.04.260(13).
1652Panel Report, para. 7.131 (referring to Busine ss and Occupation Tax – Differential Tax Rates,
Revised Code of Washington, section 82.04 (Panel Exhibit US-191)).
1653Panel Report, para. 7.132.
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found that the B&O tax rate reduction results in th e foregoing of revenue otherwise due, and therefore
constitutes a financial contribution under Article 1.1(a)(1)(ii) of the SCM Agreement.
1654
2. When Does a Government Forego Revenue Otherwise Due?
806. We begin our analysis by recalling the core aspects of the Appellate Body's reasoning in
US – FSC and US – FSC (Article 21.5 – EC) as they relate to the interpretation of Article 1.1(a)(1)(ii)
of the SCM Agreement. The Appellate Body observed that the foregoing of revenue otherwise due
implies that less revenue has been raised by the government than would have been raised in a different
situation, and that the word "foregone" suggests that the government has given up an entitlement to
raise revenue that it could "otherwise" have rai sed. This purported entitlement, however, cannot exist
in the abstract. There must be "some defined, normative benchmark against which a comparison can
be made between the revenue actually raised a nd the revenue that would have been raised
'otherwise'".1655 Moreover, the basis of comparison mu st be the "prevailing domestic standard"
established by the tax rules applied by the Member in question, because "{w}hat is 'otherwise due' …
depends on the rules of taxation that each Member, by its own choice, establishes for itself".1656
807. In the compliance proceedings in US – FSC (Article 21.5 – EC) , the Appellate Body further
elaborated its understanding of the standard set ou t in Article 1.1(a)(1)(ii). The Appellate Body
underscored that a financial contribution does not ar ise under Article 1.1(a)(1)(ii) simply because a
government does not raise revenue that it could have raised. Although a government might be said to
"forego" revenue when it chooses not to tax certain in come, this alone is not determinative of whether
the revenue foregone is "otherwise due". In other wo rds, the Appellate Body stated that "the mere
fact that revenues are not 'due' from a fiscal persp ective does not determine that the revenues are or
are not 'otherwise due' within the meaning of Article 1.1(a)(1)(ii)".1657
808. The Appellate Body again emphasized that th e term "otherwise due" implies a comparison
between the challenged measure and a "defined, normative benchmark". 1658 The Appellate Body
remarked that, because Members, in principle, have the sovereign authority to determine their own
rules of taxation, the comparison under Article 1.1(a )(1)(ii) must necessarily be between the rules of
taxation contained in the challenge d measure and other rules of taxa tion of the Member concerned.

1654Panel Report, para. 7.133.
1657Appellate Body Report, US – FSC (Article 21.5 – EC), para. 88.
1658Appellate Body Report, US – FSC (Article 21.5 – EC) , para. 89 (referring to Appellate Body
Report, US – FSC, para. 90).
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As the Appellate Body explained, such a comparison enables panels and the Appellate Body "to reach
an objective conclusion, on the basis of the rules of taxation established by a Member".
1659
809. The Appellate Body further recognized that it may be difficult to identify the appropriate
benchmark for comparison under Article 1.1(a)(1)(ii) , because domestic rules of taxation are varied
and complex. The Appellate Body stated that, "{i}n identifying the appropriate benchmark for
comparison, panels must obviously ensure that they identify and examine fiscal situations which it is
legitimate to compare"1660, and that this will be the case when there is "a rational basis for comparing
the fiscal treatment of the income subject to the contested measure and the fiscal treatment of certain
other income". 1661 The Appellate Body added that, in gene ral terms, "like will be compared with
like"1662, and that it is important to ensure that the ex amination under Article 1.1(a)(1)(ii) "involves a
comparison of the fiscal treatment of the relevant income for taxpayers in comparable situations".1663
810. In both US – FSC and US – FSC (Article 21.5 – EC) , the Appellate Body considered that
there may be situations where the measure at issue might be described as an "exception" to a general
rule of taxation. In such cases, the Appellate Body said that it may be possible to apply a "but for"
test to examine the fiscal treatment of income in the absence of the challenged measure. At the same
time, the Appellate Body expressed concerns about the application of such an approach. In US –
FSC, the Appellate Body stated that it had certain "abiding reservations" 1664 about applying any legal
standard, such as a "but for" standard, in the pl ace of actual treaty language, and expressed its concern
that the application of a single standard would give rise to problems of circumvention. In US – FSC
(Article 21.5 – EC), the Appellate Body added that, "{g}iven the variety and complexity of domestic
tax systems, it will usually be very difficult to isol ate a 'general' rule of taxation, and 'exceptions' to
that 'general' rule", and that an examination under Article 1.1(a)(1)(ii) "must be sufficiently flexible to
adjust to the complexities of a Memb er's domestic rules of taxation". 1665 The Appellate Body
affirmed that "panels should seek to compare the fi scal treatment of legitimately comparable income

1659Appellate Body Report, US – FSC (Article 21.5 – EC), para. 89.
1660Appellate Body Report, US – FSC (Article 21.5 – EC), para. 90.
1661Appellate Body Report, US – FSC (Article 21.5 – EC), para. 90.
1662Appellate Body Report, US – FSC (Article 21.5 – EC), para. 90. By way of example, the Appellate
Body indicated that, if the measure at issue involves income earned in sales transactions, it might not be
appropriate to compare the treatment of this income with employment income.
1663Appellate Body Report, US – FSC (Article 21.5 – EC) , para. 92. By way of further example, the
Appellate Body stated that, if the measure at issue is concerned with the taxation of foreign-source income in the
hands of a domestic corporation, it might not be appropri ate to compare the measure with the fiscal treatment of
such income in the hands of a foreign corporation.
1665Appellate Body Report, US – FSC (Article 21.5 – EC), footnote 66 to para. 91.
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to determine whether the contested measure involv es the foregoing of revenue which is 'otherwise
due', in relation to the income in question".
1666
811. In sum, the SCM Agreement recognizes that WTO Members ar e sovereign in determining the
structure and rates of their domestic tax regimes. Also, because tax systems are not static, Members
must have some flexibility to make adjustment s to their systems. At the same time, the
SCM Agreement recognizes that tax regimes may be used to achieve outcomes equivalent to the
results that are achieved where a government provid es a direct payment. This explains why the
Agreement includes the foregoing of government revenue otherwise due among the measures that
constitute financial contributions under Article 1.1(a)(1).
812. The identification of circumstances in which government revenue that is otherwise due is
foregone requires a comparison between the tax tr eatment that applies to the alleged subsidy
recipients and the tax treatment of comparable income of comparably situated taxpayers.
Accordingly, a panel examining a claim under Article 1.1(a)(1)(ii) of the SCM Agreement should first
identify the tax treatment that applies to the income of the alleged recipients. Identifying such tax
treatment will entail consideration of the objective reasons behind that treatment and, where it
involves a change in a Member's tax rules, an assessment of the reasons underlying that change.
813. As a second step, the panel should identify a benchmark for comparison—that is, the tax
treatment of comparable income of comparably situated taxpayers.
1667 We recognize that this is not
always a straightforward exercise, and may in some circumstances be exceedingly difficult.
Identifying a benchmark involves an examination of the structure of the domestic tax regime and its
organizing principles. In some cases, the principles will be ones well recognized in the tax regimes of
Members; in other cases, they will be unique to the particular domestic regime. It may be that
disparate tax measures, implemented over time, do not easily offer up coherent principles serving as a
benchmark. In any event, the task of the panel is to develop an understanding of the tax structure and
principles that best explains that Member's tax re gime, and to provide a reasoned basis for identifying
what constitutes comparable income of comparably situated taxpayers. Evidence relied upon in such
an analysis must be located in the "rules of taxation that each Member, by its own choice, establishes

1666Appellate Body Report, US – FSC (Article 21.5 – EC), para. 91.
1667Although the Appellate Body has previously referred to the tax treatment of "comparable income",
we understand that the same approach would apply to identifying any comparable taxable activity, transaction,
or property of comparably situated taxpayers. (See Revenue Statistics, 1965-2010, Annex A, The OECD
Classification of Taxes and Interpretative Guide (OECD, 2011) (referring to the following categories of
taxation: taxes on income, profits, and capital gains; social security contributions; taxes on payroll and
workforce; taxes on property; taxes on goods and services; and other taxes))
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for itself".
1668 In doing so, a Member will be held to account for the tax structure and principles that it
itself employs. This is akin to the approach undertak en in the field of public finance for purposes of
estimating what are known as "tax expenditures".1669
814. Finally, as a third step, the panel should compar e the reasons for the challenged tax treatment
with the benchmark tax treatment it has identified af ter scrutinizing a Member's tax regime. Such a
comparison will enable a panel to determine whether, in the light of the treatment of the comparable
income of comparably situated taxpayers, the govern ment is foregoing revenue that is otherwise due
in relation to the income of the alleged recipients.
815. In the light of the demands of this inquiry , we recall the reservations expressed by the
Appellate Body about the limitations inherent in id entifying a general rule and exception relationship.
In doing so, a panel might artificially create a rule and an exception where no such distinction exists.
In addition, an approach that focuses too narrowl y on the change effected by a tax measure could
result in a finding that government revenue otherw ise due has been foregone anytime the tax rate
applicable to a recipient is lowered. This under scores the risk in identifying a benchmark solely by
reference to historical rates, the very departur e from which may reflect evidence of shifting norms
within that regime. Moreover, we note that a domest ic tax system may be so replete with exceptions
that the rate applicable to the general category of income in fact no longer represents the "general
rule" but, rather, the "exception". The Appe llate Body identified a similar concern in US – FSC when
it expressed misgivings that a "but for" test coul d lead to circumvention "by designing a tax regime
under which there would be no general rule that applied formally to the revenues in question, absent
the contested measures".1670 For these reasons, while there may be circumstances in which scrutiny of
a tax regime indicates the presence of a general rule and an exception, we would expect that such an
indication will not ordinarily end the analysis. Ra ther, we would expect a panel to further examine
the structure of the domestic tax regime and its organizing principles.

1669The Organisation for Economic Co-operation and Development ("OECD") describes tax
expenditures as tax laws, regulations, or practices th at reduce or postpone revenue for a comparatively
narrow population of taxpayers relative to a benchmark tax. ( Tax Expenditures in OECD Countries
(OECD, 2010), p. 12 (referring to B. Anderson, PowerPoint presentation at the 5th Annual Meeting of
OECD-Asia Senior Budget Officials held on 10-11 January 2008 in Bangkok, available at
<www.oecd.org/dataoecd/40/6/39944419.pdf>))
1670Appellate Body Report, US – FSC, para. 91. (original emphasis)
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3. Assessment of the Panel's Analysis under Article 1.1(a)(1)(ii) of the
SCM Agreement
816. The first claim of the United States is that the Panel misconceived the proper standard under
Article 1.1(a)(1)(ii) of the SCM Agreement by elevating the "but for" test "to the status of {a} general
rule".1671 According to the United States, contrary to the Panel's approach, the Appellate Body has
rejected the proposition that the "but for" test refl ects the correct standard under Article 1.1(a)(1)(ii),
instead, viewing it as "simply one methodology" that ma y be useful for applying the general standard
"in certain, limited situations". 1672 The European Union maintains that the Panel did not misinterpret
the legal standard, and that the Panel made clear "that a 'but for' test can be applied, not must be
applied, where it is possible to identify a general rule of taxation". 1673 The European Union therefore
does not consider that the Panel elevated the "but for" test to a general rule but, rather, understood that
such a test is applicable in certain situations in order to effectuate a comparison of legitimately
comparable income.
817. The Panel summarized the Appellate Body's analysis in the US – FSC cases as follows:
{T}he Appellate Body's analysis suggests that where it is possible to
identify a general rule of taxation applied by the Member in question,
a "but for" test can be applied. In other situations, the challenged
taxation measure should be compared to the treatment applied to
comparable income, for taxpayers in comparable circumstances in
the jurisdiction in issue.
1674
818. The Panel apparently viewed Article 1.1(a)(1 )(ii) as requiring a comparison of the fiscal
treatment under a challenged measure with that in resp ect of either (i) a general rule of taxation, or
(ii) comparable income of comparably situated taxpayers. This is supported by the Panel's subsequent
statement that it could apply the former test becau se, in the circumstances of this case, "it is not
difficult to identify a general rule of taxation and exceptions to it".1675 Viewed in this light, the Panel's
approach suggests that, as long as a general rule of ta xation is identified, it is sufficient to conduct an
analysis limited to the determination that, but for the challenged measure, higher tax liability would
have attached by virtue of the general rule. Fo r the reasons we have expr essed above, we consider
that this approach may lead to an overly narrow conception of which rules are relevant in identifying a
benchmark. We also do not believe that panels have a binary choi ce to make between a simplified,
and a relatively more complex, inquiry. At the same tim e, we note that, by stating that a "but for" test

1671United States' other appellant's submission, para. 142.
1672United States' other appellant's submission, para. 139.
1673European Union's appellee's submission, para. 214. (original emphasis)
1674Panel Report, para. 7.120.
1675Panel Report, para. 7.133.
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can be applied, the Panel indicated its awareness that the identification of a general rule does not lead
invariably to the exclusive application of such a test. Therefore, subject to our observations above
concerning the Panel's articulation of the legal standa rd, we do not consider that articulation to be
inconsistent with Article 1.1(a)(1)(ii) of the SCM Agreement.
819. The United States also alleges two "specific errors of law"
1676 regarding the Panel's
application of Article 1.1(a)(1)(ii). First, the United States submits that the Panel erred in its
identification of the proper benchmark by failing to examine the Washington State B&O tax system as
a whole, consisting of 36 activity classifications subject to B&O tax. 1677 Second, the United States
asserts that the Panel erred in failing to account for the fact that, due to the "pyramiding" 1678 inherent
in the Washington State B&O tax system, the effective tax rate for aerospace manufacturing exceeds
the average effective tax rate for businesses in Washington State.
1679 The European Union argues that
the Panel properly rejected using the range of 36 B&O tax rates in Washington State as the normative
benchmark for purposes of establishing whet her a financial contribution exists. 1680 The
European Union also contends that the Panel prop erly excluded from its analysis consideration of
pyramiding and the average effective B&O tax rate in Washington State. 1681 The European Union
points out that the United States conceded that the average effective B&O tax rate is not a normative
benchmark, and offered no evidence or argument to support the notion that combating pyramiding and
bringing effective B&O tax rates closer to the aver age effective B&O tax rate is any stated norm in
Washington State tax law.1682
820. We recall that House Bill 2294 lowered, in two stages, the B&O tax rate applicable to the
gross income of commercial aircraft and component manufacturers. First, the bill provided for a
reduction in the applicable tax rate from 0.484% or 0.471% to 0.4235% on 1 October 2005. Second,
upon the later of 1 July 2007 or the commencem ent of final assembly of a "superefficient
airplane"1683, the bill provided for a further tax rate reduc tion to 0.2904%. Because final assembly of
the Boeing 787 aircraft, meeting the definition of a "superefficient airplane", commenced in the first
half of 2007, commercial aircraft and component ma nufacturers are subject to the rate of 0.2904%

1676United States' other appellant's submission, para. 145.
1677United States' other appellant's submission, para. 153.
1678As explained infra, para. 829, "pyramiding" describes the process by which businesses, because
they are taxed at each stage of production, pay higher rates in later stages of production due to the accumulation
of taxes paid on prior inputs in the production process.
1679United States' other appellant's submission, para. 157.
1680European Union's appellee's submission, para. 221.
1681European Union's appellee's submission, para. 228.
1682European Union's appellee's submission, paras. 228 and 231.
1683"Superefficient airplane" is described in section 17 of House Bill 2294.
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until 2024.
1684 House Bill 2294 also provides that, if a commercial aircraft manufacturer fails to
submit an annual report detailing certain employment and wage information, the amount of the tax
rate reduction will immediately become due.1685
821. As explained above, the Panel c oncluded that there is a genera l or normal B&O tax rate of
0.484% for manufacturing and wholesaling activities and 0.471% for retailing activities, and that
deviations from these rates constitute exceptions. Th e Panel thus considered that there are taxation
rates that apply to general categories of business income generated from manufacturing, wholesaling,
and retailing activities, and a lower, exceptional taxati on rate that applies to a subset of that business
income, consisting of income generated from comme rcial aircraft and com ponent manufacturing,
wholesaling, and retailing activities.1686
822. Both before the Panel, and again on appeal , the United States has maintained that the
Washington State B&O regime consists of 36 activ ity classifications, but recognizes four "major" or
"principal" activity classifications subject to the following taxation rates: (i) manufacturing (0.484%);
(ii) wholesaling (0.484%); (iii) retailing (0.471%); and (iv) services (1.5%).1687 The Panel also noted
that these four classifications "account for 90 per cent of total B&O tax liability". 1688 This indicates
that Washington State itself classifies income fro m business activities into broad categories that, for
purposes of the commercial aircraft sector, cons ist of manufacturing, wholesaling, and retailing
activities.
823. We have explained above that a panel must be aware of the lim itations inherent in identifying
and comparing a general rule of taxation, and an ex ception from that rule. For instance, we noted that
it could be misleading to identify a benchmark within a domestic tax regime solely by reference to
historical tax rates. By that measure, the fact that commercial aircraft and component manufacturers
were previously subject to higher tax rates would not in it self be determinative of what the benchmark
is at the time of the challenge. In the circumstance s of this case, however, we do not consider that the
Panel was conducting a purely historical compar ison. In particular, we note the Panel's
acknowledgement that House Bill 2294 provide d for a reversion to the "full taxes"
1689 associated with
the general categories of activities in the event that certain reporting requirements were not met. This

1684Panel Report, para. 7.48.
1685Panel Report, para. 7.127.
1686Panel Report, paras. 7.122 to 7.125.
1687Panel Report, para. 7.129 (referring to Business and Occupation Tax, Revised Code of Washington,
section 82.04 (Panel Exhibit US-179); and United States ' first written submission to the Panel, para. 430). See
also United States' other appellant's submission, para. 147.
1688Panel Report, para. 7.129 (quoting Business and Occupation Tax, Revised Code of Washington ,
section 82.04 (Panel Exhibit US-179), p. 98).
1689Panel Report, para. 7.127 (quoting Final Bill Repor t, HB 2294, C1L03E2, undated (Panel Exhibit
EC-90), p. 3).
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supports the Panel's view that the benchmark co nsisted of the generalized tax rates of 0.484%
(manufacturing and wholesaling) and 0.471% (retailing), not because those rates reflected what
previously applied to commercial aircraft manufacturing activities, but rather because they reflected
what would currently apply to these activities if the conditions for the lower rates were not met.
824. We have also noted that it could be misleadi ng to compare rates applicable to a general
category of income with rates applicable to a subcategory of that income, without considering whether
the scope of the "exceptions" undermines the existence of a "general rule". In this dispute, we note
that the Panel analyzed what portion of income wa s entitled to a rate of taxation different from that
applicable to income from general manufacturing activities. The United States had argued before the
Panel that 60% of total taxable income in Washi ngton State was subject to an adjusted rate of
taxation.
1690 The European Communities responded that , once the aerospace industry was excluded,
only 20% of manufacturing income was subject to an adjusted B&O tax rate.1691 The Panel concluded
that, "if {House Bill} 2294 had not adjusted the rate for aerospace manufacturing, approximately
80 per cent of manufacturing activities in Washington State would be subject to the 0.484 per cent tax
rate".
1692 This reflects consideration by the Panel as to the relative tax treatment of other taxpayers
engaged in the same broad category of business activities as commercial aircraft manufacturers.
825. In sum, the Panel identified broad categories of tax treatment under the Washington State tax
code that apply to general manufacturing, wholesalin g, and retailing activities in Washington State.
The Panel also determined that commercial aircra ft and component manufacturers are subject to a
lower tax rate, which would in certain circumstances re vert to the higher, general tax rates. The Panel
moreover considered that the scope of the general ta x rates in relation to that of various lower tax
rates did not alter its conclusion that the general rates reflected what would have been applied to
commercial aircraft and component manufacturers in the absence of the B&O tax reduction. Thus, we
are satisfied that the Panel had a proper basis for selecting as the benchmark the tax treatment
generally applicable in Washington State to businesses engaged in manufacturing (0.484%),
wholesaling (0.484%), and retailing (0.471%) activities. In addition, we consider that the Panel
properly concluded that a comparison of these general tax rates to the lower tax rate of 0.2904% that
was applied to the gross income of commerc ial aircraft and com ponent manufacturers under
House Bill 2294 indicates the foregoing of government revenue otherwise due within the meaning of
Article 1.1(a)(1)(ii) of the SCM Agreement.

1690Panel Report, para. 7.138.
1691Panel Report, para. 7.138 (referring to European Communities' comments on the United States'
1692Panel Report, para. 7.138.
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826. In its appeal, the United States challenges the basis for the Panel's reliance on a benchmark
consisting of general manufacturing, wholesaling, and retailing tax rates by arguing that the Panel
failed to take account of other important featur es of the Washington State B&O tax system. The
United States asserts, for instance, that the Panel fa iled to consider that there are 36 categories of
business activities individually identified in the W ashington State tax code that, "taken together,
reflect 'the fiscal treatment of … relevant inco me for taxpayers in comparable situations'".
1693 T h e
United States thus contends that, because Washi ngton State establishes various tax rates for various
activity categories, the appropriate benchmark consists of the entire B&O tax regime. The
United States adds that, in failing to examine all of the tax rates of that regime, the Panel failed to
consider the fiscal treatment of other relevant income for comparably situated taxpayers.
827. As we have explained, we consider that th e Panel took into account both the tax treatment
provided pursuant to House Bill 2294 and that app lied to other categories of business activity under
the Washington State tax code. 1694 We also do not understand how the B&O tax system as a whole
could, in any event, operate as a benchmark. Because the Washington State B&O tax system is
composed of various tax rates for various activity categories, they cannot all simultaneously serve as
the basis for a comparison with the challenged rate. To contend that all of the B&O tax rates together
constitute the benchmark would amount to the contenti on that there is, in effect, no benchmark within
that system. Such an assertion, however, prematurel y abdicates, rather than engages, the inquiry as to
an appropriate benchmark for purposes of an analysis under Article 1.1(a)(1)(ii). In our view, that
inquiry should seek to identify a benchmark within a taxation system even in circumstances where
there may be several, perhaps competing, principles operating within a taxation system, or where the
existence of any coherent principle or principles is difficult to discern.
828. The United States also maintains that the Washington State B&O tax system "is a multi-rate
tax system that applies numerous tax rates to nume rous individually identified categories of activities,
and the tax rate applied to aerospace manufacturing a nd selling is within the range of tax rates applied
to other activities".
1695 We understand this argument to posit that whether a challenged tax rate
constitutes the foregoing of government revenue othe rwise due is to be resolved by assessing whether

1693United States' other appellant's submission, para. 153 (quoting Appellate Body Report, US – FSC
(Article 21.5 – EC), para. 92).
1694See supra, paras. 821 and 822 (referring to Panel Report, paras. 7.122-7.125 and 7.129). See also
Panel Report, paras. 7.202 and 7.203.
1695United States' other appellant's submission, para. 153.
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it approximates the average of the range represented by all rates under that regime.
1696 In our view,
employing such a benchmark would lead to potent ially indiscriminate outcomes whereby rates at or
above an average rate would appear permissible, whereas rates below that benchmark would be
deemed a financial contribution. We do not consid er it plausible to maintain that a government
foregoes revenue that is otherwise due in respect of particular taxpayers, irrespective of their type of
income or business activity, simply because the tax rate that applies to those taxpayers' income falls
below the average of a range of taxation rates.
829. The United States further contends that the Panel erred in its identification of the appropriate
benchmark by failing to take account of effective B&O tax rates in Washington State. The
United States argues that the aerospace industry is subj ect to particularly high effective tax rates due
to "pyramiding", a process by which businesses, be cause they are taxed at each stage of production,
pay higher rates in respect of later stages of pr oduction due to the accumulation of taxes paid on prior
inputs in the production process. According to th e United States, once adju sted for the phenomenon
of pyramiding, the effective tax rate for aerospace manufacturing was reduced from 2.53% to 1.578%,
which exceeds the average effective tax rate for other Washington State businesses of 1.53%. 1697 We
see no indication in the Panel record that adjusting tax rates to approximate the average effective tax
rate reflects a principle under the Washington State B&O tax regime. Rather, it appears to be more in
the nature of an ex post explanation regarding the relationship of these rates to one another. We note,
moreover, that the United States itself conceded th at the average effective B&O tax rate does not
constitute a benchmark for the purposes of this case under Article 1.1(a)(1)(ii).1698
830. In addition, the Panel record does not su pport the contention that Washington State
implemented House Bill 2294 alone, or as part of a broader regulatory scheme, to counteract the
effects of pyramiding. House Bill 2294 was implemen ted in order to provide certain tax incentives to

1696Before the Panel, the United States argued that, as long as the challenged rate falls within the range
of B&O tax rates, "it cannot be considered revenue fore gone that is otherwise due". (United States' first written
submission to the Panel, para. 452) As the Panel correctly noted, the problem with employing this as a
benchmark is that, "by definition, every rate in any multi-ra te tax system falls within the range of rates in that
tax system". (Panel Report, para. 7.135) The Panel added that, where "the lower bound of the range of nominal
B&O tax rates is 0 per cent … every tax rate falls within the range and it is never possible for a tax reduction to
constitute a financial contribution". (Ibid., footnote 1224 thereto)
1697United States' other appellant's submission, para. 149.
1698Panel Report, para. 7.137. The United States confirmed this position in response to questioning at
the oral hearing.
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the aerospace industry.
1699 The fact that House Bill 2294 provided for a reversion to "full taxes" in the
event that certain reporting requirements were not met would seem contrary to alleviating the burden
on the commercial aircraft sector caused by higher effective tax rates. 1700 We further observe that the
report of the Washington State Tax Structure Study Committee, which the United States relied upon
to highlight concerns with pyramiding in the Washington State tax system, recommended replacing
the B&O tax system altogether, instead of adjus ting tax rates throughout the B&O taxation system to
remove the effects of pyramiding.
1701 Finally, we note the Panel's conclusion elsewhere in its Report
that none of the evidence submitted by the United States indicates that the B&O tax rate reduction
was introduced in order to combat pyramiding. 1702 We therefore do not consider that the average
effective tax rate in the Washington State B&O tax system serves as an appropriate benchmark
against which to compare the tax rate reduction set out in House Bill 2294.
831. For the foregoing reasons, we uphold the Panel's finding, in pa ragraph 7.133 of the Panel
Report, that the reduction in the Washington State B&O tax rate applicable to commercial aircraft and
component manufacturers constitutes the foregoing of revenue otherwise due, and therefore a
financial contribution within the meaning of Article 1.1(a)(1)(ii) of the SCM Agreement.
B. Specificity
832. We next turn to the United States' appeal of the Panel's finding that the Washington State
B&O tax rate reduction under House Bill 2294 is a subsidy that is specific within the meaning of
Article 2.1(a) of the SCM Agreement. We first provide a summary, in subsection 1, of the Panel's
findings before assessing, in subsection 2, the United States' claim on appeal.

1699House Bill 2294, entitled "Aerospace Industry – Tax Incentives", states in section 1 as follows:
The legislature finds that the people of the state have benefited from the
presence of the aerospace industry in Washington state. The aerospace
industry provides good wages and benefits for the thousands of engineers,
mechanics, and support staff working directly in the industry throughout the
state. The suppliers and vendors that support the aerospace industry in turn
provide a range of jobs. The legislatur e declares that it is in the public
interest to encourage the continued presence of this industry through the
provision of tax incentives. The comprehensive tax incentives in this act
address the cost of doing business in Washington state compared to
locations in other states.
1700Panel Report, para. 7.127.
1701The report of the Washington State Tax Structure Study Committee recommended, inter alia:
Replacing the B&O tax with a value added tax eliminates the "pyramiding"
effect as goods move through the production chain, thereby addressing the
Committee's concerns with economic neutrality and competitiveness.
A majority of the Committee members recommend this alternative.
("Tax Alternatives for Washington State: A Report to the Legislature" (November 2002), Vol. 1 (Panel Exhibit
US-180), p. v)
1702Panel Report, para. 7.205.
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1. The Panel's Findings
833. The Panel began its analysis by setting out an interpretation of Article 2.1(a) of the
SCM Agreement. The Panel considered that the ordinary me aning of the term "explicit" indicates that
the limitation on access to a subsidy must "distinctly express all that is meant; leaving nothing merely
implied or suggested", and must be "unambiguous" and "clear". 1703 The Panel added that, given that
Article 2.1(a) provides that ,"{w}here the granting au thority, or the legislation pursuant to which the
granting authority operates, explicitly limits access to a subsidy", it is clear that the express limitation
can be found either in the legislation by which the granting authority operates, or in other statements
or means by which the granting authority expresses its will. 1704 The Panel also considered guidance
from the panel in US – Upland Cotton suggesting that "there is some tipping point, which varies on a
case-by-case basis, at which access to the subsidy in issue is no longer considered to be limited to
'certain enterprises' but rather is 'sufficiently broadly available' throughout an economy as to be non-
specific".1705 On the basis of these considerations, the Panel concluded that a finding of specificity
under Article 2.1(a) requires a limitation that, on the face of the legislation or in other statements or
means by which the granting authority expresses its will, "expressly and unambiguously restricts the
availability of a subsidy to 'certain enterprises' a nd as a result does not make the subsidy 'sufficiently
broadly available throughout an economy'".
1706
834. In applying this standard to its analysis of sp ecificity, the Panel first examined the terms of
House Bill 2294. The Panel considered that "{ a}n inspection of {House Bill} 2294 lends credence to
the European Communities' view that those tax measures under {House Bill} 2294 that we have
found to be subsidies are specific". 1707 The Panel noted, in particular, that House Bill 2294 is entitled
"Aerospace Industry – Tax Incentives", and that the language and operation of the bill limits the tax
measures to the aerospace industry or to certain ente rprises within the aerospace industry. The Panel
therefore concluded that, "on the face of {House Bill} 2294, the taxation subsidies are expressly and
unambiguously limited to enterprises manufacturing commercial airplanes or components for such
airplanes", and that this constitutes a limitation either to an "industry" or to a "group of enterprises"
within the meaning of Article 2 of the SCM Agreement.
1708

1703Panel Report, para. 7.190 (quoting Shorter Oxford English Dictionary, L. Brown (ed.) (Clarendon
Press, 1993), Vol. 1, p. 888).
1704Panel Report, para. 7.190.
1706Panel Report, para. 7.192.
1707Panel Report, para. 7.194.
1708Panel Report, para. 7.196.
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835. The Panel did not consider it appropriate, howev er, to confine its analysis to a review of
House Bill 2294. The Panel observed that, by limiti ng the specificity analysis to House Bill 2294,
rather than considering the Washington State B&O taxation system as a whole, it might otherwise
overlook "valuable information which may shed light on whether or not a subsidy is properly
characterized as specific".
1709 Noting the possibility that the relevant B&O tax rate reduction is part
of a wider subsidy extended to other industries thr ough separate amendments to the Washington State
tax code, the Panel stated that "it is necessary to examine the B&O taxation system as a whole, in
particular the legislation and documents produced by the granting authority, in order to determine
whether the subsidy in issue is explicitly limited to certain enterprises or is broadly available".1710
836. Although the Panel considered it "possible" that the B&O tax rate reducti on applicable to the
aerospace industry is one part of a wider subsidy to a variety of industries, the Panel found that "the
United States has provided little information on which the Panel would be able to draw the conclusion
the United States seeks".1711 The Panel acknowledged that the Washington State tax code establishes
some variation in the B&O taxation rates applie d to the manufacturing, wholesaling, and retailing
sectors. The Panel also noted its prior conclusions that, while there are general B&O tax rates that
apply to these broad categories of activity, there are also certain, more specific activities subject to
"exceptions" to the general rates.1712 Although this information supported the United States' argument
that the aerospace industry is not alone in receiving an exception to the general rates of taxation for
manufacturing, wholesaling, and retailing activities, th e Panel was not persuaded that this led to a
finding of non-specificity under Article 2.1(a).
837. In particular, the Panel found that, "{i}f the differential B&O tax rates were truly
implemented as part of a common subsidy programme , it would be reasonable to expect some links
between the individual tax reductions, for example, in the timing of their introduction, in their purpose
or in their levels". 1713 The Panel found, however, that the United States had not provided "any
evidence to suggest that the reductions to separate i ndustries are part of a wider, generally available
and explicit programme of tax reductions".1714 The Panel added that, "{i}n fact, some of the evidence
submitted by the United States runs counter to this argument." 1715 The Panel thus found that the B&O
tax rate reduction granted to the aerospace industry u nder House Bill 2294 is a subsidy that is specific
within the meaning of Article 2.1(a) of the SCM Agreement.

1709Panel Report, para. 7.198.
1710Panel Report, para. 7.199.
1711Panel Report, para. 7.201 (referring to United States' response to Panel Question 233, para. 385).
1712Panel Report, paras. 7.202 and 7.203.
1713Panel Report, para. 7.205. (footnote omitted)
1714Panel Report, para. 7.205.
1715Panel Report, para. 7.205 (referring to Panel Exhibits US-191 and US-180).
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2. Assessment of the Panel's Analysis under Article 2.1(a) of the
SCM Agreement
838. The United States does not challenge the Pane l's interpretation of specificity under
Article 2.1(a) of the SCM Agreement.1716 Rather, the United States claims that the Panel failed, in the
application of Article 2.1(a), to consider the en tirety of the subsidy that the Panel had found to
exist.1717 In the United States' view, the Panel failed to analyze whether, taking all of the differential
tax rates in the Washington State tax system together, access to the subsidy was limited to certain
enterprises, or whether access was sufficiently broa dly available throughout the economy so as to
indicate that the subsidy was not specific to certa in enterprises. The United States maintains that,
because the Panel "did not even attempt to ascertain"
1718 whether access to this subsidy was limited to
certain enterprises, as required by Article 2.1, the Panel's finding should be reversed.
839. The European Union contends that the Pane l needed to examine only House Bill 2294 to
arrive at a finding of de jure specificity, but that the Panel nevertheless proceeded to evaluate the
B&O taxation system as a whole. In doing so, the Panel "made a finding of fact that the multiple
B&O tax rate exceptions do not constitute a singl e 'subsidy' programme, but rather may constitute
separate and distinct measures, because there was no evidence to justify considering all of the B&O
tax rate exceptions together as a single measure for purposes of the Article 2.1(a) analysis". 1719
According to the European Union, the Panel ri ghtly called for evidence of a connection among the
multiple tax breaks in order to determine that th ey were part of a common subsidy programme, and
noted the lack of any such evidence on the Panel record.
840. In Part VII, we have set out our views on the scope of the inquiry under Article 2.1(a) of the
SCM Agreement. We have explained that the focus of the inquiry under Article 2.1(a) is on the class
of recipients, and the manner in which access to the subsidy is limited to the class. These limitations
must be "explicit", which means that they must be "express, unambiguous, or clear from the content
of the relevant instrument, and not merely 'implied' or 'suggested'". 1720 Moreover, the source of any
limitations under Article 2.1(a) is the legislation pursuant to which the granting authority operates, or
the granting authority itself.

1716United States' other appellant's submission, para. 167.
1717United States' other appellant's submission, para. 172.
1718United States' other appellant's submission, para. 178.
1719European Union's appellee's submission, para. 237 (referring to Panel Report, paras. 7.200-7.205).
1720Appellate Body Report, US – Anti-Dumping and Countervailing Duties (China), para. 372.
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841. The scope of the inquiry called for under Artic le 2.1(a) is not necessarily limited to the
subsidy as defined in Article 1.1. Although the subs idy as defined in Article 1.1 is the starting point
of the analysis under Article 2.1(a), the scope of the inquiry is broader in the sense that it must
examine the legislation pursuant to which the gr anting authority operates, or express acts of the
granting authority. The outcome of that inquiry can not be predetermined by the legal framework that
a WTO Member chooses to establish and distribute the subsidies. At the same time, Article 2.1
makes it clear that the assessment of specificity is framed by the particular subsidy found to exist
under Article 1.1. This means that the inquiry unde r Article 2.1 should not examine subsidies that are
different from those challenged by the complaining Member. That inquiry requires careful scrutiny of
the relevant legislation—whether set out in one or several instruments—to determine whether the
subsidies are provided pursuant to the same subs idy scheme. Once a subsidy scheme is identified,
then the question is whether that subsidy is explic itly limited to "certain enterprises", defined in the
chapeau to Article 2.1 as "an enterprise or industry or group of enterprises or industries".
842. Following its assessment under Article 1.1 of the SCM Agreement, the Panel found that the
"Washington B&O tax reduction"
1721 is a subsidy to Boeing within the meaning of Article 1 of the
SCM Agreement. By "Washington B&O tax reduction", the Panel was referring to the B&O tax rate
reduction enacted under House Bill 2294. This is evident from the Panel's earlier discussion of
financial contribution, where the Panel stated as follows:
The standard rate for manufacturing and wholesaling activities is
0.484 per cent and for retailing activities is 0.471 per cent. Were it not
for the "preferential rate" introdu ced by {House Bill} 2294, aircraft
manufacturers would be subject to the rates of 0.484 per cent for
manufacturing and wholesaling and 0.471 per cent for retail sales.
For these reasons, the Panel finds th at the reductions in the B&O tax
rates constitute the foregoing of reve nue otherwise due and, as a result,
are a financial contribution under Article 1.1(a)(1)(ii) of the
SCM Agreement.
1722
843. Despite the somewhat generic reference to "r eductions in the B&O tax rates", the preceding
context indicates that this finding applied only to the B&O tax rate reduction applicable to the
activities of commercial aircraft and component manufacturers under House Bill 2294. This
understanding is confirmed by the Panel's subsequent reference to "the B&O tax {rate} reduction for
aircraft manufacturing", which it had found "constitutes a subsidy".1723 Therefore, for purposes of the
assessment under Article 2.1, the subsidy "as define d in paragraph 1 of Article 1" was the B&O tax

1721Panel Report, para. 7.179.
1722Panel Report, para. 7.133.
1723Panel Report, para. 7.199. (italics omitted)
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rate reduction contained in House Bill 2294 that applied to activities of commercial aircraft and
component manufacturers.
844. At the outset of its assessment of specificity, the Panel explained that, "{a}s a starting point
for the analysis of de jure specificity"
1724, it would examine the terms of House Bill 2294. The Panel
considered that House Bill 2294 is the legislative instrument pursuant to which the subsidy found by
the Panel—that is, the B&O tax rate reduction that applied to activities of commercial aircraft and
component manufacturers—was enacted. Accordingly, the Panel's decision to begin its analysis with
House Bill 2294 is consistent with the chapeau of Article 2.1, and with our understanding of the scope
of the assessment under that provision.
845. The Panel, however, did not limit the scope of its analysis to the B&O tax rate reduction
enacted under House Bill 2294. Indeed, the Panel rej ected the European Communities' request that it
do so, instead, opting to examine the Washington State B&O taxation system as a whole. The Panel
explained the basis for its approach as follows:
{W}e cannot accept the European Communities' submission that the
specificity analysis must be lim ited to amending legislation through
which the subsidy is enacted. … By limiting the specificity analysis
to the amending legislation, rather than considering the Washington
taxation legislation as a whole, valu able information which may shed
light on whether or not a subsidy is properly characterized as specific
may be ignored. Further, the approach advocated by the
European Communities means that the specificity analysis is
dependent upon how the complaini ng party chooses to define the
measure it is challenging.
1725
846. The Panel added the following specific reas ons concerning the challenged B&O tax rate
reduction applicable to commercial aircraft and component manufacturers:
{A}lthough we have found {that th e B&O tax rate reduction for
commercial aircraft and components manufacturers} constitutes a
subsidy, it is possible that it is one part of a wider subsidy extended
to other industries through separat e amendments to the Washington
tax code. In our view, it is necessary to examine the B&O taxation
system as a whole, in particul ar the legislation and documents
produced by the granting authority, in order to determine whether the
subsidy in issue is explicitly lim ited to certain enterprises or is
broadly available. Therefore, we judge it appropriate to consider the
Revised Code of Washington as a whole, rather than merely the
amending legislation, {House Bill} 2294, in analyzing whether the

1724Panel Report, para. 7.194.
1725Panel Report, para. 7.198.
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B&O tax rate reduction is specific within the meaning of
Article 2.1(a).
1726
847. The Panel correctly recognized that the B&O tax rate reduction applicable to commercial
aircraft and component manufacturers, enacted under House Bill 2294, could be part of a wider
subsidy scheme. Hence, it correctly broadened the scope of its analysis to the Washington State B&O
tax regime and sought to verify whether under th is broader legal framework the same subsidy was
being made available to other enterprises or industri es. Ultimately, the Panel concluded that the same
subsidy was not made available to other enterpri ses under the Washington State B&O tax regime. In
arriving at this conclusion, the Panel was not persuaded that other di fferential B&O tax rates
contained in the Washington State tax code were part of the same subsidy scheme as the challenged
B&O tax rate reduction.
848. The United States advances two main arguments on appeal. First, the United States suggests
there is incoherence in the Panel's approach. Acco rding to the United States, the Panel was required
by Article 2.1 to "address the specificity of the subs idy that has been found to exist, not some other
subsidy, and not merely a part of the subsidy found to exist".1727 Because the Panel had found that the
application of a tax rate lower than the standard ra te constitutes a subsidy, the United States maintains
that the Panel was required to make an assessment of whether access to that subsidy is explicitly
limited to certain enterprises.1728
849. As we have set out above, the Panel' s conclusion under Article 1.1 of the SCM Agreement
was not that all differential tax rates under Washingt on State's B&O tax regime constitute a subsidy.
Rather, the Panel's finding under Article 1.1 w as that the B&O tax rate reduction enacted under
House Bill 2294 for commercial aircraft and compone nt manufacturers was the subsidy. Having
correctly started its analysis with the subsidy that it had determined to exist under Article 1.1, the
Panel then expanded the scope of its inquiry by turn ing to the Washington State tax code as a whole.
As we have explained, the Panel did not consider that the other differential tax rates formed part of the
same subsidy scheme as the B&O tax rate reduction a pplicable to commercial aircraft and component
manufacturers. We do not consider that the approach undertaken by the Panel was incoherent. On the
contrary, if the Panel concluded that the other differe ntial tax rates were not part of the same subsidy
scheme as the reduced B&O tax rate for commercial aircraft and component manufacturers, then it
was correct for the Panel not to have considered th em collectively. We therefore consider that the
Panel's approach is consistent with the scope of the inquiry under Article 2.1(a).

1726Panel Report, para. 7.199.
1727United States' other appellant's submission, para. 168.
1728United States' other appellant's submission, para. 171.
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850. Second, the United States questions the basi s for the Panel's conclusion that it was not
appropriate to consider the various B&O differential tax rates as part of the same subsidy programme.
The United States asserts that none of the factors on which the Panel based its conclusion—namely,
timing, level, and purpose—is relevant to the analysis.
1729
851. We share the Panel's view 1730 that, where multiple subsidies are part of the same subsidy
scheme, one would expect to find links or co mmonalities between those subsidies. The Panel
observed that the Washington State B&O tax regime applies certain rates to taxpayers based on the
business activity in which they engage. In respec t of manufacturing activities, the Washington State
tax code applies a rate of 0.484% on all businesses engaged in manufacturing, unless they qualify for
lower rates applicable to particular manufacturing activities. Apart from the taxation rate of 0.2904%
applied to commercial aircraft a nd component manufacturing activities, the Panel also identified the
following manufacturing activities that are subject to differential rates:
(a) manufacturing wheat into flour, barley into pearl barley, soybeans into soybean oil,
canola into canola oil or sunflower se eds into sunflower oil, raw seafood,
biodiesel/alcohol fuel, processing or splitting dried peas, and processing perishable
meat products (0.138%);
(b) manufacturing semi-conductor materials and nuclear fuel assemblies (0.275%);
(c) manufacturing aluminium and solar energy systems (0.2904%);
(d) manufacturing associated with fresh fruit, vegetables, and dairy products (exempt);
and
(e) manufacturing of timber and timber produc ts (0.4235% until 30 June 2007 and
0.2904% until 30 June 2024).1731

1729United States' other appellant's submission, paras. 174-178.
1730See Panel Report, para. 7.205.
1731Panel Report, para. 7.202 (referring to Revised Code of Washington , section 82.04.260 (Panel
Exhibit US-181); House Bill 2294, section 3; Business and Occupation Tax, Revised Code of Washington ,
section 82.04 (Panel Exhibit US-179); Revised Code of Washington, section 82.04.294 (Panel Exhibit US-188);
Revised Code of Washington , section 82.04.2909 (Panel Exhibit US-189); and United States' first written
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852. The Washington State tax code also appli es rates of 0.484% and 0.471% on businesses
engaged in wholesaling and retailing activities, r espectively, unless they qualify for lower rates
applicable to particular such activities. Apart from the taxation rates of 0.484% and 0.471% applied
to the wholesaling and retailing activities of commerc ial aircraft and component manufacturers, the
Panel also identified the following activities subject to differential rates:
(a) wholesaling and reselling prescription drugs, wholesaling of perishable meat products
(0.138%);
(b) wholesaling of solar energy systems and of aluminium, where manufactured by the
seller (0.2904%);
(c) wholesaling or retailing of nuclear fuel assemblies, where manufactured by the seller
(0.275%);
(d) retailing of interstate transport equipment (0.484%); and
(e) wholesaling of dairy products, fresh fruit, and vegetables, where manufactured by the
seller and where the purchaser transports the goods out of the state (exempt).
1732
853. The B&O tax rate reduction applicable to co mmercial aircraft and component manufacturers
was enacted under House Bill 2294 as an amendment to the tax code, known as the Revised Code of
Washington. At the oral hearing, the United States argue d that this tax rate, together with the other
differential tax rates, should have been considered collectively as a subsidy, because they are all
contained in the Washington State tax code and e xpressed as exceptional rates to the general rates set
out in that code. We note that the Revised Code of Washington reflects an accretion of tax rate
adjustments over time, each implemented through separat e pieces of legislation. The fact that a series
of differential tax rates are locat ed in the same section of the tax code, while relevant, cannot be
dispositive as to whether they constitute part of th e same subsidy scheme for purposes of a specificity
analysis under Article 2.1(a).

1732Panel Report, para. 7.203 (referring to Revised Code of Washington , section 82.04.260 (Panel
Exhibit US-181); House Bill 2294, section 3; Business and Occupation Tax, Revised Code of Washington ,
section 82.04 (Panel Exhibit US-179); Revised Code of Washington, section 82.04.294 (Panel Exhibit US-188);
Revised Code of Washington , section 82.04.2909 (Panel Exhibit US -189); and United States' first written
submission to the Panel, para. 431 and footnote 588 thereto).
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854. We further note that the amendment does not in dicate that it was enacted as part of a broader
subsidy scheme. On the contrary, House Bill 2294 cl early indicates that the legislation is aimed at
"retaining and attracting the aerospace industry to Washington State" and includes "comprehensive
tax incentives" directed at achieving this aim.
1733 The details of the differential tax rates examined by
the Panel are set out in Panel Exhibit US-191, a study that the Washington State Department of
Revenue is required by law to prepare.
1734 We see support in this document for the Panel's statement
that "the differential tax rates were introduced at a range of different times and for a variety of
different purposes". 1735 In particular, while some of the differential tax rates were, like the rate
applicable to commercial aircraft and component manufacturers, designed to retain certain business
activities in Washington State, others appear to have been adopted for entirely different purposes. We
note, for instance, that the reduced tax rate for manufacturers of dairy products was enacted to support
the dairy industry and provide a tax rate equivale nt to producers of certain other agricultural
commodities, whereas other reduced tax rates—for example, for flour and oil, seafood, and fruit and
vegetable producers—were provided to address the low profit margins experienced by firms in those
industries, in some instances because they were una ble to pass the total cost of a gross receipts tax on
to the consumers due to a highly competitive market structure.
1736
855. The Panel also noted that exhibits submitted by the United States include statements that
"pyramiding"1737 is a problem associated with the B&O tax. Nevertheless, the Panel found that these
exhibits do not indicate that any tax rate reduc tions were introduced in order to combat this
problem.1738 Moreover, we have already considered th at the evidence on the Panel record does not
support the conclusion that the B&O tax rate re duction for commercial ai rcraft and component
manufacturers was introduced to counteract the e ffects of pyramiding. Thus, the concept of
pyramiding would not serve as a proper basis to find that the challenged B&O tax rate reduction
belongs to the same subsidy scheme as other differen tial tax rates that allegedly redress the effects of
pyramiding. Finally, we note that, apart from observing that all of the differential tax rates are
contained within the Revised Code of Washington , the United States has not referred to any evidence
on the Panel record to support the proposition that the B&O tax rate reduction applicable to

1733House Bill 2294, preamble and section 1; see Panel Report, para. 7.41.
1735Panel Report, para. 7.205.
1736Business and Occupation Tax – Differential Tax Rates, Revised Code of Washington, section 82.04
(Panel Exhibit US-191).
1737Panel Report, para. 7.205 (referring to Business and Occupation Tax, Revised Code of Washington,
section 82.04 (Panel Exhibit US-179); and Washington State Tax Structure Study, "Tax Alternatives for
Washington State: A Report to the Legislature" (November 2002), Vol. 1 (Panel Exhibit US-180).
1738Panel Report, para. 7.205
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commercial aircraft and component manufacturers and th e other differential tax rates form part of the
same subsidy scheme.
856. We therefore consider that the Panel had a prope r basis to conclude that the differential B&O
tax rates set out in the Revised Code of Washington do not form part of a common subsidy
programme.
857. As the Appellate Body has explained, it may be that a provisional indication in respect of
specificity within the meaning of Article 2.1(a) will require further analysis under Article 2.1(b).
1739
We note that neither party has advanced argume nts in this case concerning the applicability of
Article 2.1(b) to the B&O tax rate reduction for commercial aircraft and component manufacturers.
Moreover, as we have explained above, the only criterion for attracting the reduced tax rate under
House Bill 2294 is that the subject business is engaged in activities of commercial aircraft or
component manufacturers. We do not consider that th is satisfies the requirement in footnote 2 to the
SCM Agreement that "{o}bjective criteria or conditions" be neutral, not favour certain enterprises
over others, and be economic in natu re and horizontal in application. Indeed, this measure appears
expressly targeted so as to limit the application of a particular tax rate reduction to a discrete category
of business activity carried out by certain enterprises within a particular industry. Thus, we do not see
that application of Article 2.1(b) to the challe nged measures alters the analysis in respect of
specificity. Finally, because the foregoing analysis indicates that there is an explicit limitation on
access to a subsidy to certain enterprises, we do not c onsider that further analysis under Article 2.1(c)
is warranted.
858. For the foregoing reasons, we uphold the Panel's finding, in pa ragraph 7.205 of the Panel
Report, that the Washington State B&O tax rate reduction granted under House Bill 2294 is a subsidy
that is specific within the meaning of Article 2.1(a) of the SCM Agreement.

1739Appellate Body Report, EC and certain member States – Large Civil Aircraft , para. 950. See also
Appellate Body Report, US – Anti-Dumping and Countervailing Duties (China), para. 369: "We can conceive, for
example, of situations in which an initial indication of specificity under Article 2.1(a) may need to be considered
further if additional evidence demonstrates that the subs idy in question is available on the basis of objective
criteria or conditions within the meaning of Article 2.1(b)."
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IX. City of Wichita Industrial Revenue Bonds (IRBs) – Specificity
859. We next turn to the United States' appeal of the Panel's finding that the IRB subsidies
provided by the City of Wichita are a specific subs idy within the meaning of Article 2.1(c) of the
SCM Agreement. We begin, in section A, with a brief background on the IRBs issued to Boeing and
Spirit, followed by a summary, in section B, of the Pa nel's findings in respect of this measure. In
section C, we assess the United States' claim on appeal.
A. Background
860. As a general matter, IRBs are issued by the City of Wichita to the general public on behalf of
a qualifying private entity, the proceeds of whic h are used to purchase, construct, or improve
commercial or industrial property for that entity.
1740 The City of Wichita holds title to the property
during the term of the IRB, and leases the property to the private entity in exchange for rent payments
sufficient to cover the payment of principal and interest on the IRB to the public bondholders. During
the term of the IRB, the private entity benefits fro m exemptions from certain interest rate, property,
and sales taxes. At the conclusion of the IRB term, title to the property transfers to the private entity
involved. The IRB scheme operated somewhat differently for Boeing, and subsequently Spirit (which
acquired Boeing's Wichita division in June 2005), because the IRBs at issue, rather than being
purchased by the public, were purchas ed by Boeing and Spirit themselves. This meant that Boeing
and Spirit funded their own property development th rough the IRBs. Boeing and Spirit thus used
IRBs, not for the purpose of financing property develo pment, but rather to take advantage of property
and sales tax exemptions associated with the IRBs. The City of Wichita has issued IRBs to Boeing
and Spirit every year since 1979.
B. The Panel's Findings
861. The Panel first considered the challenge d measure under Article 2.1(a) of the
SCM Agreement. Noting that the European Communities had not submitted arguments in respect of
that provision, the Panel considered that the releva nt Kansas State statutory provisions authorizing the
issuance of IRBs by Kansas cities and counties did not expressly limit the availability of the subsidy
within the meaning of Article 2.1(a). 1741 The Panel therefore turned to consider the
European Communities' claim of specif icity under Article 2.1(c) of the SCM Agreement. Although
the Panel assessed each of the factors under Article 2.1(c), its ultimate finding of specificity relied on

1740This description is drawn from paragraphs 7.648 to 7.664 of the Panel Report. Although relevant
details concerning the IRBs are set out in this section of our Report, we note that Part IV contains a more
detailed description of the challenged measure.
1741Panel Report, para. 7.743.
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its consideration of the European Communities' arguments that Boeing and Spirit were granted
disproportionately large amounts of IRB subsidies. The Panel considered that there were two issues it
needed to examine. First, the Panel sought to establish "the correct interpretation of
'disproportionality', including what ratios need{ed} to be compared in this analysis".
1742 Second, the
Panel sought to determine whether the European Communities "ha{d} adequately substantiated its
argument that the City of Wichita granted Boeing a nd Spirit IRB tax abatements in a disproportionate
amount".1743
862. The Panel considered that, in assessing whether a subsidy granted to certain enterprises is
"disproportionately large", it was "necessary to conv ert the amount of the subsidy into a ratio by
comparing it to something else that is 'whole'", and then to assess that ratio "to determine whether it is
lacking proportion". 1744 The Panel agreed with the parties that, when a subsidy has been granted
under a subsidy programme, that programme should or dinarily serve as the "whole" against which the
subsidies to "certain enterprises" can be compared. The Panel considered that this approach finds
support in the text of the final sentence of Artic le 2.1(c), which provides that, when applying the
subparagraph, it is necessary to take into account the length of time during which "the subsidy
programme" has been in operation.1745
863. The Panel noted that there is no explicit guidan ce in the text of Article 2.1(c) regarding
against what the relative amount of subsidy receive d by Boeing and Spirit should be compared. The
European Communities contended that a second ratio should be used consisting of information about
Boeing, such as employment levels, relative to co mparable information relating to the entire economy
in the jurisdiction of the granting authority. By contrast, the United States argued that the second ratio
should compare the information about Boeing, su ch as employment levels, with comparable
information about the group of recipients of the alleged subsidy.1746
864. The Panel found problematic both ratios advocated by the parties. 1747 The Panel considered
that there was some textual support for the Euro pean Communities' approach found in the last
sentence of Article 2.1(c), which requires that "the extent of diversifica tion of economic activities
within the jurisdiction of the granting authority" be taken into account in applying the subparagraph.
In determining whether the amount of subsidy grante d to certain enterprises is lacking proportion, the
Panel observed that comparing the percentage of s ubsidy received by the "certain enterprises" with

1742Panel Report, para. 7.753.
1743Panel Report, para. 7.753.
1744Panel Report, para. 7.754.
1745Panel Report, para. 7.755.
1746Panel Report, para. 7.759.
1747Panel Report, para. 7.760.
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their position within the entire economy is one way in which the diversification of the economy in the
jurisdiction of the granting authority can be taken into account.
865. The Panel considered, however, that there we re problems with the European Communities'
approach. First, assuming that disproportionalit y is established by means of any discrepancy,
however small, between two ratios under consider ation, the Panel observed that any limit on the
availability of a subsidy would result in dispropor tionate distribution of that subsidy. The Panel
explained that, for instance, "{i}n circumstan ces where a subsidy may be broadly available
throughout an economy, with 90 per cent of enterp rises receiving it, a comparison of the ratio of the
amount of subsidy received by each enterprise, or set of 'certain enterprises', with their contribution to
the wider economy (including the 10 per cent of ente rprises that did not receive the subsidy) will
necessarily result in at least one enterprise or set of 'certain enterprises' receiving an amount of
subsidy in disproportion to its contribution to the economy."
1748 In the Panel's view, the
European Communities' approach to the specificity analysis contradicts the approach taken by prior
panels, such as the panel in US – Upland Cotton, which held that there is a tipping point, which is not
subject to rigid quantitative definition, at whic h a subsidy becomes sufficiently broadly available
throughout an economy as to become non-specific. According to the Panel, in US – Upland Cotton ,
"{t}he panel indicated that something less than universal availability can lead to a finding of
non-specificity."1749
866. The Panel thus observed that Article 2 of the SCM Agreement does not expressly indicate the
level of strictness associated with the limit on access to the subsidy for it to be specific. As a result, it
may have been possible to find a subsidy to be specific whenever there was any limit on its
availability. The Panel added, however, that th is is not the way in which Article 2 has been
interpreted in prior disputes. The Panel mainta ined, therefore, that the European Communities'
approach leads to "a finding that a subsidy has b een granted in disproportionately large amounts by
reason of the existence of a restriction on its ava ilability but where otherwise the subsidy would be
considered to be broadly available throughout the economy and therefore non-specific."1750
867. The Panel considered that the United States' a pproach to the disproportionality analysis was
also problematic. The Panel stated that, while it is difficult to find support in the text or context of
Article 2 of the SCM Agreement for limiting the benchmark to th e group of subsidy recipients, the
United States' approach is more mathematically logical than that of the European Communities. 1751

1748Panel Report, para. 7.762.
1749Panel Report, para. 7.762.
1750Panel Report, para. 7.763.
1751Panel Report, para. 7.764.
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The reason for this is that, in comparing the ratio of the amount of subsidy that Boeing and Spirit
received in relation to the entire group of recipients of the subsidy with the ratio of Boeing's and
Spirit's employment levels in relation to the aggregat ed employments levels of the group of recipients
of the subsidy, like is compared with like, as both ratios have the same denominator. The Panel
considered that, under the United States' approach, "it is always at least possible to find that a subsidy
has not been granted to 'certain enterprises' in a disproportionate amount in circumstances where there
is some limit on the subsidy's availability."
1752
868. The Panel explained, however, that the United St ates' approach was also difficult to reconcile
with the purpose of Article 2 of the SCM Agreement, which is to determine whether a subsidy is
sufficiently broadly available throughout an economy so as not to benefit "certain enterprises". Under
the United States' approach, the Panel reasoned, a subsidy may be granted to only two or three
enterprises, "and as long as these two or three enterp rises receive the subsidy in proportion to their
relative economic contributions as compared to each other, the disproportionality analysis does not
point to any problem of specificity."1753 The Panel added that, where one enterprise receives 100% of
the subsidy, this will never lead to a finding th at the enterprise receives a disproportionately large
amount of subsidy, because the enterprise also makes up 100% of the economic activity of the subsidy
recipients.
869. Although the Panel considered that neither of the approaches suggested by the parties was
completely satisfactory, it noted that the European Communities had at least some support for its
approach in the text of Article 2.1(c). Further, the Panel observed, "the problem that any limit on the
availability of the subsidy leads to a finding of disproportionality may be overcome somewhat if
disproportion is interpreted to mean a significant disparity between the two relevant ratios, rather than
any discrepancy, however small."1754 The Panel considered that this was not an unreasonable reading
of Article 2.1(c) "because, in any event, it woul d seem unduly strict to require exact correspondence
between the proportion of subsidy granted to ce rtain enterprises with the enterprises' relative
economic importance, as judged by an unspecified economic indicator".1755

1752Panel Report, para. 7.764.
1753Panel Report, para. 7.765. (original emphasis)
1754Panel Report, para. 7.768. (original emphasis)
1755Panel Report, para. 7.768. The Panel also considered the approach advocated by Australia, in which
the baseline group against which the economic position of th e "certain enterprises" is compared is the group of
entities that are potentially able to make use of the subsidy. The Panel concluded that, given the broad
eligibility for the IRBs in this case, employing Australia's approach would unlikely differ significantly from the
European Communities' approach of examining the position of Boeing and Spirit in the overall economy.
(See ibid., paras. 7.767 and 7.768)
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870. Turning to the facts of the case, the Panel noted the European Communities' assertion that
Boeing and Spirit received 69% of the IRBs that included tax abatements issued between 1979 and
2005, but that Spirit, after it had acquired Boeing' s LCA operations in Wichita, accounted for 3.5% of
total employment or 16% of manufacturing employment in Wichita.
1756 The Panel further noted that
the European Communities was prep ared to accept the United States' argument that Boeing's
employment levels during most of the period over which the IRBs were issued were double those of
Spirit, but that 32% of manufacturing employment w as still disproportionate to a ratio of 69%. The
Panel concluded that "there is a significant disp arity between the proportion of IRBs received by
Boeing and Spirit and their place within the goods sector of the economy, as indicated by the
proportion of the sector they employ."
1757 The Panel acknowledged the United States' argument that
comparing the proportion of subsidy received by Boeing and Spirit with the proportion of the
economy they employed is not the fact-specific inquiry required for a specificity analysis, but
considered that, "given the significance of the disparity between the figures, it constitutes a prima
facie case of disproportionality", and that "{t}he United States has not provided a convincing rebuttal
of this prima facie case." 1758 Accordingly, the Panel found that the IRB tax abatements granted to
Boeing and Spirit were disproportionately large, and th erefore specific to "certain enterprises" within
the meaning of Article 2.1(c) of the SCM Agreement.
C. Assessment of the Panel's Analysis under Article 2.1(c) of the SCM Agreement
871. The United States challenges the Panel's finding that the IRB subsidies were granted in
disproportionately large amounts within the meaning of Article 2.1(c) of the SCM Agreement and, in
particular, the Panel's decision to use company-sp ecific employment levels of Boeing and Spirit,
relative to total manufacturing employment in the City of Wichita, as the benchmark for its
disproportionality analysis. The United States consid ers that "the Panel's approach, by focusing on a
single numerical ratio, and using the total level of manufacturing employment within the jurisdiction
of the granting authority as its baseline, does not provide a valid benchmark for what a subsidy like
the IRBs would be proportional to."
1759 The United States further main tains that the Panel erred by

1756Panel Report, para. 7.769.
1757Panel Report, para. 7.769.
1758Panel Report, para. 7.769. The Panel remarked that the United States had argued "at a relatively
high level of generality" that the degree of diversification in the Wichita economy was low, but had not
presented any statistics to indicate that Boeing and Spirit accounted for anything approximating 69% of the
economic activity in Wichita. (Ibid.)
1759United States' other appellant's submission, para. 186. (emphasis omitted)
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failing to take into account the extent of divers ification of economic activities in the City of
Wichita.
1760
872. The European Union argues that the United States has failed to establish that the Panel erred
in its disproportionality analysis. In the European Union's view, the Panel correctly concluded that
the United States had not provided a convincin g rebuttal of the European Communities' prima facie
case.1761 In particular, the European Union argues, th e United States failed to present any evidence to
demonstrate that the share of IRB benefits recei ved by Boeing and Spirit indeed reflected its
participation in the Wichita economy, or that reliance on employment levels as a measure of
economic participation was misleading. 1762 The European Union furt her argues that the Panel
considered economic diversification when it ev aluated Boeing's and Spirit's relative share of
employment in the manufacturing sector in the City of Wichita.1763
873. In considering this claim on appeal, we must bear in mind the overall framework set out in
Article 2.1 of the SCM Agreement. As we have explained in Part VII, subparagraphs (a) through (c)
of Article 2.1 are to be considered within an analytical framework that recognizes and accords
appropriate weight to each principle, and which allows for their concurrent application. We have also
noted that the structure of Article 2.1 suggests that the specificity analysis will ordinarily proceed in a
sequential order by which s ubparagraph (c) is examined following an assessment under
subparagraphs (a) and (b).
874. In this dispute, although the European Communities did not present a claim of specificity with
reference to subparagraphs (a) or (b), the Panel nevertheless proceede d to examine specificity within
the meaning of Article 2.1(a). According to th at provision, specificity exists where a granting
authority, or the legislation pursuant to which th e granting authority operates, explicitly limits access
to a subsidy to "certain enterprises", defined in th e chapeau to Article 2.1 as "an enterprise or industry
or group of enterprises or industries". The Panel noted that the European Communities had not
attempted to argue that the tax abatements provi ded through the issuance of IRBs are specific under
Article 2.1(a), and added that "it is clear that this is not the case." 1764 The Panel considered that the
relevant Kansas State statutory provisions "do not e xpressly limit the availability of the subsidy such
that it is not broadly available throughout the ec onomy", and that this is in accordance with the
legislation's broad purpose, which, the Panel found, "does not include any suggestion of an intent to

1760United States' other appellant's submission, para. 191.
1761European Union's appellee's submission, para. 277 (referring to Panel Report, para. 7.769).
1762European Union's appellee's submission, para. 277 (referring to Panel Report, para. 7.769).
1763European Union's appellee's submission, para. 292.
1764Panel Report, para. 7.743.
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limit the issuance of IRBs to 'certain enterp rises' within the meaning of Article 2.1(a)".
1765 The Panel
then set out a provision of the Kansas State statute, which provides as follows:
It is the purpose of this act to promote, stimulate and develop the
general welfare and economic prosperity of the state of Kansas
through the promotion and advanc ement of physical and mental
health, industrial, commercial and agricultural, natural resources and
of recreational development in the state; to encourage and assist in
the location of new business and in dustry in this state and the
expansion, relocation or retenti on of existing business, industry and
health development; and to prom ote the economic stability of the
state by providing greater employment opportunities, diversification
of industry and improved physical a nd mental health, thus promoting
the general welfare of the citizens of this state by authorizing all
cities and counties of the state to issue revenue bonds.
1766
875. The Panel's conclusion that the IRB subsidi es are not specific within the meaning of
Article 2.1(a) has not been raised on appeal. The authorizing statute expresses eligibility for IRB
benefits in very broad terms, noting no limitations on access to a particular enterprise or industry or
group of enterprises or industries. The statute also indicates that its purpose is to encourage new
business to locate in Kansas State, to assist in the retention of existing business, and to promote
economic stability through the diversification of in dustry. These and other indicators point to broad
access to IRB benefits without any apparent limitation to a particular enterprise or industry, or group
thereof.
876. The Panel then proceeded to an alyze whether there was a basis for finding specificity in fact
under Article 2.1(c) of the SCM Agreement.
1767 Article 2.1(c) provides that, "{i}f, notwithstanding
any appearance of non-specificity resulting from th e application of the principles laid down in
subparagraphs (a) and (b), there are reasons to believe that the subsidy may in fact be specific, other
factors may be considered." This sentence makes cl ear that the application of Article 2.1(c) proceeds
on the basis of the conclusions reached as a result of the application of the preceding subparagraphs of
Article 2.1. We therefore consider that it was correct for the Panel to assess whether the legislation
pursuant to which the IRBs were granted explicitly limited access to certain enterprises within the
meaning of Article 2.1(a), even though it was not claimed by the European Communities. Having
found that the IRB subsidies are not specific within the meaning of Article 2.1(a), analysis by the
Panel under Article 2.1(b) was not necessary.

1765Panel Report, para. 7.743 (referring to Kansas Annotated Statute, sections 12-1740 ff (2001) (Panel
Exhibit EC-167).
1766Kansas Annotated Statute, section 12-1740 (2001) (Panel Exhibit EC-167).
1767Panel Report, para. 7.744.
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877. We have explained that Article 2.1(c) proceeds where "there are reasons to believe that the
subsidy may in fact be specific". This means th at, having reached the conclusion that there is an
"appearance of non-specificity" following the applicati on of the principles set out in Article 2.1(a)
and (b), a panel must consider whether, in the light of the arguments and evidence submitted by the
parties, there are "reasons" for it to consider that an assessment under Article 2.1(c) is warranted. The
inquiry under Article 2.1(c) thus focuses on whethe r a subsidy, although no t apparently limited to
certain enterprises from a review of the relevant legi slation or express acts of a granting authority, is
nevertheless allocated in a manner that belies the a pparent neutrality of the measure. This inquiry
requires a panel to examine the reasons as to why the actual allocation of "amounts of subsidy" differs
from an allocation that would be expected to resu lt if the subsidy were administered in accordance
with the conditions for eligibility for that subsidy.
878. We have also explained that the "reasons to belie ve that the subsidy may in fact be specific"
relate to the factors set out in subparagraph (c). The second sentence of Article 2.1(c) prescribes the
following factors for consideration: (i) use of a subsidy programme by a limited number of certain
enterprises; (ii) predominant use by certain enterpri ses; (iii) the granting of disproportionately large
amounts of subsidy to certain enterprises; and (iv) the manner in which discr etion has been exercised
by the granting authority in th e decision to grant a subsidy.
1768 The third sentence of Article 2.1(c)
adds that, in applying this provision, account shall be taken of the extent of diversification of
economic activities within the jurisdiction of the gr anting authority, as well as of the length of time
during which the subsidy programme has been in op eration. These elements define the terrain for
assessing whether subsidies, which may have app eared non-specific following the application of
Article 2.1(a) and (b), are nevertheless specific in fact . Which elements are relevant to the analysis of
specificity under Article 2.1(c) will be a function of what reasons there are to believe that the subsidy
may in fact be specific. We would expect a pane l to remain open to the applicability of each of the
elements set out in Article 2.1(c), and to the possibi lity that a conclusion in respect of specificity in
fact may, depending on the circumstances of the case, rely on an assessment of one, several, or all of
those elements.
879. In this dispute, the Panel conducted an analysis of the IRBs under each of the factors set out
in Article 2.1(c). However, the factor on which th e Panel based its specificity finding, and which is
directly at issue on appeal, concerns "the granting of disproportionately large amounts of subsidy to
certain enterprises". Article 2.1(c) does not offer clear guidance as to how to measure whether certain
enterprises are "grant{ed} disproportionately large amounts of subsidy". The language of

1768Footnote 3 to Article 2.1(c) specifies that, "in pa rticular, information on the frequency with which
applications for a subsidy are refused or approved and the reasons for such decisions shall be considered."
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Article 2.1(c) indicates that the first task is to id entify the "amounts of subsidy" granted. Second, an
assessment must be made as to whether the amounts of subsidy are "disproporti onately large". This
term suggests that disproportionality is a relationa l concept that requires an assessment as to whether
the amounts of subsidy are out of proportion, or relatively too large.
1769 When viewed against the
analytical framework set out above regarding Article 2.1(c), this factor requires a panel to determine
whether the actual allocation of the "amounts of subs idy" to certain enterprises is too large relative to
what the allocation would have been if the su bsidy were administered in accordance with the
conditions for eligibility for that subsidy as assessed unde r Article 2.1(a) and (b). In our view, where
the granting of the subsidy indicates a disparity between the expected distribution of that subsidy, as
determined by the conditions of eligibility, and its actual distribution, a panel will be required to
examine the reasons for that disparity so as ultimate ly to determine whether there has been a granting
of disproportionately large amounts of subsidy to certain enterprises.
880. On this basis, we turn to examine the alloca tion of IRB subsidies granted to Boeing and Spirit
by the City of Wichita, and the reasons why such amounts of subsidy may or may not be
disproportionately large.
881. The European Communities claimed in its first written submission that Boeing and Spirit
received a disproportionately large amount of IRB s ubsidies issued by the City of Wichita between
1979 and 2005, because these companies were granted 61% of all IRBs, and 69% of all IRBs that
included property tax abatements.
1770 The United States sought to rebut this claim by arguing that the
fact that Boeing and Spirit received a significant sh are of IRBs was "unremarkable", because Boeing
was "the largest private sector employer for the entire State of Kansas" and "aircraft production has
historically been the core industry of Wichita". 1771 The United States added that, "{i}n the 1990s,
Boeing's employment levels in Wichita exceeded 20,000 in some years with a payroll of
approximately $1 billion".1772
882. In its second written submission, the European Communities argued that "{o}ne way to assess
the relative importance of a company within a local economy is to consider the company's
employment as a percentage of local employment."
1773 In support of its argument, the

1769The term "disproportionate" signifies "{l}acking proportion; poorly proportioned; out of
proportion (to); relatively too large or too small"; and the term "proportion" refers to "{a} portion, a part, a
share, esp. in relation to a whole; a relative amount or number". ( Shorter Oxford English Dictionary , 6th edn,
A. Stevenson (ed.) (Oxford University Press, 2007), Vol. 1, p. 713 and Vol. 2, p. 2372, respectively)
1770Panel Report, para. 7.714 (referring to European Communities' first written submission to the Panel,
paras. 336 and 337).
1771United States' first written submission to the Panel, para. 613. (emphasis and footnote omitted)
1772United States' first written submission to the Panel, para. 613. (footnote omitted)
1773European Communities' second written submission to the Panel, para. 249.
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European Communities noted that, in 2006, Spirit 's employment levels amounted to 16% of
manufacturing employment in Wichita.
1774 The United States responded that this analysis failed to
account for the diversification of economic activit ies within the City of Wichita, as required by
Article 2.1(c), and that the European Communities' reliance on the employment metric in isolation
reflected an insufficient inquiry under Article 2.1( c) and was, in any event, misleading, because
Boeing's employment was more than double that of Spirit's during the relevant period. 1775 T h e
European Communities countered that it had taken account of diversificati on of economic activities
within Wichita by showing that "Boeing's share of Wichita IRBs is disproportionate, even taking into
account Boeing's significance in the local economy" 1776 as measured by employment data. The
European Communities also noted that, even accepting the contention that Boeing's employment
levels were double those of Spirit, the resulting figure of 32% of overall local manufacturing
employment still supports its argument that Boeing and Spirit were granted disproportionately large
amounts of IRB subsidies.1777
883. As we understand it, IRBs are potentially ava ilable to enterprises that seek to purchase,
construct, or improve various types of commercial or industrial property. 1778 Thus, enterprises that
would seek to have the City of Wichita issue IRBs on their behalf are those that intend to invest in
property development. In any given year, not a ll enterprises in Wichita will be undertaking such
property development, and, even if they were, th ey may not be inclined to fund such development
through the IRB scheme. We therefore consider it likely that, although the legal basis for the
allocation of IRBs may seemingly be broadly availa ble to enterprises in Wich ita, the enterprises that
are actually in a position to avail themselves of IRB benefits at any given time represent only a subset
of all enterprises in Wichita. Nevertheless, even if the benefits of IRBs are limited to those
enterprises actually in a position to seek them, we would expect, on the basis of the conditions
established for eligibility for IRBs, a wide distributi on of those benefits across various sectors of the
Wichita economy.
1779 Where the actual distribution of a subsidy deviates materially from the
expected distribution of that subsidy, a panel w ould need to examine the reasons provided by the
parties to explain that outcome.

1774Panel Report, para. 7.769; European Commun ities' second written submission to the Panel,
para. 249.
1775United States' response to Panel Question 46, paras. 124 and 125.
1776European Communities' comments on the United States' response to Panel Question 46, para. 152.
1777Panel Report, para. 7.769; European Communities' comments on the United States' response to
Panel Question 46, para. 153.
1778Panel Report, para. 7.651.
1779At the oral hearing, the United States referred to an exhibit that indicates that potential IRB
recipients must, among other qualifications, engage in one of the following activities: manufacturing, service
sector, research and development, warehousing and distribution, corporate headquarters, transportation,
commercial redevelopment, tourism, affordable housing, and medical services. (See City of Wichita/Sedgwick
County Economic Development Incentives Policy (Panel Exhibit EC-190))
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884. In this dispute, the European Communities submitted to the Panel that Boeing and its
successor, Spirit, received approximately 69% of a ll IRBs granted by the City of Wichita between
1979 and 2005. The Panel noted no objection by the Un ited States to this ratio, and considered that it
was reasonable to rely on it in assessing Boeing's and Sp irit's share of property tax abatements with
the total amount of property tax abatements received by all IRB holders.
1780 Even taking into account
the fact that not all enterprises in Wichita would, at any given time, wish to enjoy the benefits of IRBs
in respect of property development, we would noneth eless expect that the allocation of such benefits
over the 25-year period between 1979 and 2005 would have produced a wider distribution of those
benefits across different sectors of the Wichita economy. The fact that Boeing and its successor
received over two thirds of all I RB property tax abatements from the City of Wichita over a 25-year
period, in our view, provides a reason to belie ve that the IRB subsidies were granted in
disproportionately large amounts to certain enterprises.
1781
885. In this dispute, the European Communities a nd the United States engaged in considerable
debate over the proper scope of a second ratio m easuring the economic participation of Boeing and
Spirit that, when compared against the 69% figu re, could demonstrate whether the amounts of
IRB subsidies provided to Boeing and Spirit were disproportionately large. 1782 T h e
European Communities had argued before the Pa nel that the second ratio should consist of
information about Boeing and Spirit relative to comparable information relating to the entire economy
in the jurisdiction of the granting authority; whereas the United States had argued that the second
ratio should compare such information about Boeing and Spirit with comparable information relating
to the group of recipients of the alleged subsidy. 1783 In addition, the European Communities and the
United States disagreed over whether employment da ta was the appropriate me tric to rely upon in
measuring the economic participation of Boeing and Spirit. 1784 It was on the basis of this debate that
the Panel accepted the European Communities' argument that the 69% figure demonstrated

1780Panel Report, paras. 7.755 and 7.756.
1781We also note the Panel's conclusion that, together with another aircraft manufacturer (Cessna
Aircraft Company), these entities receive d more than 78% of relevant IRBs during this period. (Panel Report,
para. 7.751)
1782Panel Report, para. 7.759.
1783Panel Report, para. 7.759. The Panel recognized limitations in both benchmarks advanced by the
parties, noting that each produced a nomalous results. If the scope of the benchmark is economic participation
within the entire economy, the use of that benchmark is likely to produce disparities in the comparison between
the subsidy allocations and economic participation that reflects some disproportionality. (See ibid., paras. 7.761
and 7.762) If the scope of the benchmark is limited to subsidy recipients, a subsidy distributed to an entity or
group of entities constituting certain en terprises will likely indicate some di sproportionality, because that entity
or group of entities will also constitute 100% of the economic activity of subsidy recipients. (See ibid.,
para. 7.765)
1784European Communities' second written submission, para s. 249 and 250; United States' response to
Panel Question 46, para. 124.
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disproportionality when measured against evidence th at Boeing and Spirit amounted to no more than
32% of manufacturing employment in Wichita.
1785
886. We do not consider that the focus by the par ties and the Panel on determining what share of
employment Boeing and Spirit had within the Wichita economy is particularly relevant to the inquiry
of whether the IRB subsidies granted to Boeing and Sp irit were disproportionately large. As we have
explained, a panel's inquiry under Article 2.1(c) should focus on the reasons that explain any disparity
between the actual and expected distributions of a subsidy. On appeal, the United States seeks to
explain why the fact that Boeing and Spirit were granted 69% of IRB benefits does not indicate the
granting of disproportionately large amounts of subsidy. The United States argues that IRBs are not
available to the entire economy of Wichita, and that, as a result, calculating Boeing's and Spirit's share
of economic participation as a ratio of employment levels of the entire Wichita manufacturing sector
is not informative. As the United States argues, "only those companies that fund, construct or
improve industrial and/or commercial property durin g the relevant time period actually had access to
the IRB program", and there is therefore no reason to assume "that there is necessarily a logical and
'proportionate' relationship betwee n the number of employees of a particular company or group of
companies as compared to all employment in the Wichita manufacturing sector, and the amount of
IRB tax benefits received".
1786 It would have made much more sense, the United States argues, to
take a look at "qualifying investments" during the relevant period of time—that is, "those companies
that actually made investments in industrial or commercial property".1787
887. We agree that examining qualifying investments would have been a reasonable basis on
which to show why the 69% figure does not indicate that IRB subsidies were granted in
disproportionately large amounts. In particular, such a showing may have explained why, for IRB
benefits seemingly broadly ava ilable over a 25-year period to enterprises seeking to develop
commercial or industrial property, one company a nd its successor received over two thirds of those
benefits. However, we do not see on the Panel re cord that the United States provided evidence in
support of such an explanation.

1785Panel Report, para. 7.769.
1786United States' other appellant's submission, para. 184. (footnote omitted)
1787United States' other appellant's submission, para. 184.
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888. Instead, the United States advanced the generalized arguments that the Wichita economy is
undiversified, that the "core industry of Wichita h as focused on aircraft production", and that Wichita
is sometimes known as the "Air Capital of the World".
1788 We do not see, however, that the
United States put forward evidence to demonstrate th at, even taking into account the particular focus
in Wichita on aircraft manufacturing, Boeing and Sp irit would be expected to receive over two thirds
of IRB subsidies. On this basis, we agree w ith the Panel's assessment that the United States'
arguments regarding the diversification of the Wich ita economy were made only at "a relatively high
level of generality". 1789 In sum, we do not see that the United States provided sufficient reasons
supported by evidence to undermine the assessment th at the granting to Boeing and Spirit of 69% of
the amounts of IRB subsidy represents an allocation at variance from what would have been expected
from the allocation of IRBs in accordance with their conditions for eligibility.
889. For the foregoing reasons, we uphold, albeit for different reasons, the Panel's finding, in
paragraph 7.779 of the Panel Report, that the IRB subsidies provided by the City of Wichita to Boeing
and Spirit are specific within the meaning of Article 2.1(c) of the SCM Agreement.
X. Adverse Effects
A. Introduction
890. After finding 15 measures to constitute specific subsidies in the collective amount of "at least
$5.3 billion"1790, the Panel proceeded to evaluate the Eu ropean Communities' claims that it had
suffered adverse effects to its commercial interest s in the form of serious prejudice within the
meaning of Articles 5(c) and 6.3(a), (b), and (c) of the SCM Agreement. In its analysis, the Panel
separated these subsidy measures into three groups, identified three relevant product markets, and
considered two mechanisms 1791 (by affecting Boeing's prices, and by affecting the development of
technologies for use on a new Boeing LCA model) through wh ich the subsidies were alleged to cause
serious prejudice. This taxonomy, along with the Pane l's ultimate findings, are set out in Table 2, and
then explained in more detail in the next part of this section.

1788United States' other appellant's submission, para. 191 (referring to Panel Report, para. 7.752; and
quoting United States' first written submission to the Pa nel, para. 607; and Greater Wichita Convention and
Visitors Bureau, "Aviation and Wichita" (Panel Exhibit US-250), respectively).
1789Panel Report, para. 7.769.
1790Panel Report, paras. 7.1433 and 7.1700.
1791Panel Report, para. 7.1596.
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Table 2. Structure and summary of the European Communities' claim and the Panel's finding on adverse
effects
Product market
(Boeing and Airbus LCA
in that market)
Serious prejudice alleged Serious prejudice found
100-200 seat
LCA market

(737NG and A320)
All of the subsidies had price
effects which caused:
 significant price suppression of the
A320, or threat thereof
 significant lost sales of the A320, or
threat thereof
 displacement and impedance of
EC exports of the A320 from various
third-country markets, or threat
thereof
The FSC/ETI subsidies and the
Washington State B&O tax rate
reduction affected Boeing's pricing
of the 737NG, and this caused:
 significant price suppression of the
A320
 significant lost sales of the A320
 displacement and impedance of
EC exports of the A320 from third-
country markets
200-300 seat
LCA market

(767, 787, A330,
Original A350, and
A350XWB-800)
All of the subsidies had price
effects, and the aeronautics R&D
subsidies also had technology
effects, and both types of effects
caused:
 significant price suppression of the
A330, Original A350, and
A350XWB-800, or threat thereof
 significant lost sales of the A330 and
Original A350, or threat thereof
 displacement and impedance of
EC exports of the A330 and Original
A350 from various third-country
markets, or threat thereof
 displacement and impedance of
EC imports of the A330 and Original
A350 into the United States, or threat
thereof
The aeronautics R&D subsidies
affected Boeing's development of
technologies for the 787, and this
caused:
 significant price suppression of the
A330 and Original A350
 significant lost sales of the A330 and
Original A350
 threat of displacement and
impedance of EC exports of the
A330 and Original A350 from
third-country markets
300-400 seat
LCA market

(777, A340, and
A350XWB-900/ -1000)
All of the subsidies had price
effects which caused:
 significant price suppression of the
A340, or threat thereof
 significant lost sales of the A340, or
threat thereof
 displacement and impedance of
EC exports of the A340 from various
third-country markets, or threat
thereof
The FSC/ETI subsidies and the
Washington State and City of
Everett B&O tax rate reductions
affected Boeing's pricing of the
777, and this caused:
 significant price suppression of the
A340
 significant lost sales of the A340
 displacement and impedance of
EC exports of the A340 from
third-country markets
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891. Before the Panel, the European Communities argued that 31 subsidy measures, alleged to
amount to a total of $19.1 billion
1792, had caused serious prejudice in the form of significant price
suppression and significant lost sales, and a threat ther eof, in the world market within the meaning of
Articles 5(c) and 6.3(c) of the SCM Agreement, as well as displacement and impedance of imports and
exports, respectively, of Airbus LCA in the Unite d States and third-country markets, and a threat
thereof, within the meaning of Articles 5(c) and 6.3(a) and (b) of the SCM Agreement.1793 According
to the European Communities, " all of the subsidies ha{d} … 'price effects' in that they … enabled
Boeing to charge lower prices for its LCA". 1794 Furthermore, the European Communities argued that
one group of subsidies—the aeronautics R&D subsid ies—also had "technology effects" in one of
three relevant product markets, in that such subs idies enabled Boeing to research, design, develop,
launch, produce, and sell its technologically innova tive 787 family of LCA years earlier than would
otherwise have been possible. 1795 These price and technology effects in turn adversely affected sales,
market share, and prices of the competing Airbus LCA in the relevant product markets, according to
the European Communities.1796
892. The number of measures that the Panel found to be specific subsidies (15 measures) and their
total amount ("at least $5.3 billion" 1797) were both less than had been alleged by the
European Communities. For purposes of its analysis of serious prejudice, the Panel separated these
subsidies into three groups, which we refer to as the "aeronautics R&D subsidies"; the "tied tax
subsidies"; and the "remaining subsidies".1798

1792Panel Report, para. 7.1606. The European Comm unities further estimated that Boeing would
receive an additional $4.6 billion in subsidies from 2007-2024. (Ibid.)
1793Panel Report, para. 7.1592 (referring to Europ ean Communities' first written submission to the
Panel, para. 1000); see also para. 7.1594. The Euro pean Communities alleged that certain of these subsidies
were also prohibited subsidies ( ibid., para. 3.1), and the Panel found that one group of subsidy measures,
namely, the FSC/ETI subsidies, were prohibited subsidies (ibid., para. 8.2(a)).
1794European Union's appellant's submission, para. 194 (quoting Panel Report, para. 7.1598 (original
emphasis), in turn referring to European Communities' first written submission to the Panel, para. 1229).
1795Panel Report, paras. 7.1596 and 7.1597 (referri ng to European Communities' first written
submission to the Panel, paras. 1335, 1343, and 1345).
1796Panel Report, para. 7.1596.
1797Panel Report, para. 7.1700.
1798Except with respect to the aeronautics R&D subsid ies, the Panel did not use the same nomenclature
in referring to these three groups. We note that we use th e term "tied" to refer to subsidies that are directly
related to Boeing's production or sale of LCA in the se nse that the receipt of the subsidy is contingent on
production or sale of a particular product. Although it di d not use this term to refer to the FSC/ETI subsidies or
the B&O tax rate reductions, the Panel appears to have accep ted that it could be used to describe them. (Panel
Report, footnote 3783 to para. 7.1827)
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893. The aeronautics R&D subsidies, which the Pane l found to amount to at least $2.6 billion,
consist of: (i) the payments made to Boeing and the access to NASA facilities, equipment, and
employees provided to Boeing by NASA pursuant to procurement contracts and Space Act
Agreements entered into under the eight aeronautics R&D programmes at issue; and (ii) the payments
made to Boeing and the access to USDOD faciliti es provided to Boeing pursuant to assistance
instruments entered into under the 23 USDOD RDT&E programmes at issue.1799
894. The three tied tax subsidies, which the Panel fo und to amount to approximately $2.2 billion,
consist of: (i) the tax exemptions and tax exclusions provided to Boeing under FSC/ETI
legislation1800; (ii) the Washington State B&O tax rate reduction 1801; and (iii) the City of Everett,
Washington, B&O tax rate reduction.1802
895. The eight remaining subsidies, which th e Panel found to amount to approximately
$550 million, consist of1803: (i) the property and sales tax abatements provided to Boeing pursuant to
IRBs issued by the City of Wi chita, Kansas; (ii) the Washi ngton State B&O tax credits for
preproduction development, computer software and hardware, and property taxes; (iii) the
Washington State sales and use tax exemptions for computer hardware, peripherals, and software;
(iv) the Washington State workforce developmen t programme and Employment Resource Center;
(v) the reimbursement of a portion of Boeing's reloca tion expenses by the State of Illinois; (vi) the
15-year Economic Development for a Growing Eco nomy ("EDGE") tax credits provided by the State
of Illinois; (vii) the abatement or refund of a portion of Boeing's property taxes provided by the State
of Illinois; and (viii) the payment to retire the lease of the previous tenant of Boeing's new
headquarters building in Chicago, Illinois.

1799See Panel Report, paras. 7.1110, 7.1210, 7.1431, and 7.1433. The Panel identified these as four
types of measures, namely: (i) the payments made to Boeing pursuant to procurement contracts entered into
under the eight NASA aeronautics R&D programmes at i ssue; (ii) the access to NA SA facilities, equipment,
and employees provided to Boeing pursuant to procurement contracts an d Space Act Agreements entered into
under the eight NASA aeronautics R&D programmes at issu e; (iii) the payments made to Boeing pursuant to
assistance instruments entered into under the 23 USDOD RDT&E programmes at issue; and (iv) the access to
USDOD facilities provided to Boeing pursuant to assist ance instruments entered into under the 23 USDOD
RDT&E programmes at issue. However, we recall that, for the reasons expl ained in section VI.A, we view the
aeronautics R&D subsidies as joint venture-type transactions that are composite in nature.
1800Panel Report, para. 7.1429. As explained infra, footnote 1882, the European Communities did not
claim that the FSC/ETI subsidies had adverse effects in the 200-300 seat LCA mark et, and the Panel conducted
its analysis on the basis that these subsidies had no effects in that product market.
1801Panel Report, para. 7.302.
1802Panel Report, para. 7.354. As explained infra, footnote 1879, the City of Everett B&O tax rate
reduction applies only in respect of two of the three relevant product markets, and not in respect of the 100-200
seat LCA market.
1803Panel Report, paras. 7.1431 and 7.1825-7.1827.
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896. The Panel analyzed the effects of each group of subsidies separately, beginning with the
largest one in terms of the total amount of th e subsidies (the aeronautics R&D subsidies).
1804 A s
explained further below, the Panel analyzed the alleged "technology effects" of the aeronautics R&D
subsidies, then assessed the alleged "price effects" of the tied tax subsidies and, finally, considered the
alleged "price effects" of the remaining subsidies.
1. Background Information
(a) Relevant markets, the reference period, and the temporal assessment
of relevant market phenomena
897. The Panel made a number of findings regard ing the relevant "markets", "subsidized
products", and "like products" for purposes of its an alysis. The parties agreed, and the Panel found,
that "the LCA market is a global market geographically". 1805 The European Communities divided the
global LCA market into five market segments, or pr oduct markets, on the basis of the flight range and
seating capacity of LCA. Table 3 sets out the three product markets relevant to the
European Communities' claim.

1804Panel Report, para. 7.1700. As explained in section X.C below, in analyzing the effects of the
aeronautics R&D subsidies provided by the USDOD, although the Panel recognized that, to the extent that they
were funded by assistance instruments, all of the RDT&E programmes could have had relevant effects, it
considered that there was "insuffici ent evidence on the record" of the eff ects of 21 of the 23 USDOD RDT&E
programmes. ( Ibid., para. 7.1701) Accordingly, the Panel assessed the effects of just two of those
programmes—ManTech and DUS&T—in its serious prejudice analysis.
1805Panel Report, para. 7.1671. The Panel based its finding on a number of factors, namely: (i) Airbus
and Boeing compete for the business of airlines and leasing companies throughout the world, and receive orders
from, and make deliveries to, customers based in almost all geographic areas of the world; (ii) both companies
display and market their aircraft at air shows that are held around the world and which are attended by a
worldwide audience; (iii) Airbus and Boeing production and support facilities are situated around the world;
and (iv) aircraft financing occurs on a global level. (Ibid.)
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Table 3. Relevant product markets
Product market Alleged Boeing
"subsidized product"
Competing Airbus
"like product"
The 100-200 seat LCA market:
Single-aisle LCA with a capacity of
100-200 passengers in a 2-class configuration
(or the respective cargo equivalent)
and a short to medium range
737NG A320
The 200-300 seat LCA market:
Wide-body LCA with a capacity of
200-300 passengers in a 3-class configuration
(or the respective cargo equivalent)
and a medium to long or ultra-long range
787
 7671806
A330,
Original A350 and
A350XWB-800
The 300-400 seat LCA market:
Wide-body LCA with a capacity of
300-400 passengers in a 3-class configuration
(or the respective cargo equivalent)
and a long or ultra-long range
777 A340 and
A350XWB-900/-1000
Source: Panel Report, paras. 7.1669-7.1672.

898. The United States accepted the European Communities' division of the market as the basis for
evaluating the European Communities' serious prejudice claim1807, and so did the Panel.1808 The Panel
further expressed the view that, provided that the European Communities demonstrated one of the
alleged forms of serious prejudice in subparagraphs (a) through (c) of Article 6.3 in relation to a
particular Boeing subsidized LCA and a correspondi ng Airbus like product, it would establish serious
prejudice for purposes of Article 5(c) of the SCM Agreement.1809
899. With respect to the relevant geographical sc ope for its analysis, the Panel distinguished
between: (i) the European Commun ities' claims under Artic le 6.3(c) of significant lost sales and
significant price suppression; and (ii) its claims under Article 6.3(a) and (b) of displacement or
impedance of imports or exports. For the first category of claims, the Panel stated that it would
conduct its analysis on the basis of its understanding that the geographic scope of each product market

1806Although the European Communities did not make any claims relating to the subsidization of, or
Boeing's commercial behaviour in respect of, the 767, it appears to have been accepted by both parties as well as
by the Panel that Boeing's 767 competed in the same 200-300 seat LCA market as the 787 and Airbus' A330,
Original A350, and A350XWB-800. (See, for example, Panel Report, paras. 7.1774, 7.1775, and 7.1783)
1807Panel Report, para. 7.1670. The United States cons idered that, because a co mplaining party enjoys
considerable latitude in framing its arguments, as long as the complainant identifies markets or products that are
reasonable and coherent, a panel should accept that defini tion. While the United States believed that there were
"serious flaws" in the European Co mmunities' five-way segmentation of the LCA market, it accepted that the
subsidized products identified were sufficiently coherent to permit a market analysis. (Ibid.)
1808Panel Report, para. 7.1672. The Panel considered it "reasonable" to examine the
European Communities' arguments on the basis of its identification of these product markets, and clarified that it
was not suggesting that this is the only, or most appropriate, way in which to divide the LCA market or to
identify the relevant subsidized products and corresponding like products. (Ibid.)
1809Panel Report, para. 7.1667.
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was worldwide.
1810 With respect to the second category, how ever, the Panel noted that Article 6.3(a)
and (b) "expressly direct us to conduct our examination of displacement and impedance on the basis
of national markets".1811 Thus, the Panel explained, it would examine whether there was displacement
and impedance of imports or exports based on th e evidence of sales occurring in the three product
markets in each relevant country.
900. The Panel accepted, as an appropriate reference period for purposes of its serious prejudice
analysis, the three-year period proposed by the European Communities—namely, 2004-2006. 1812 The
Panel stated that it would nevertheless, in assessi ng the existence of serious prejudice within that
reference period, take account of "e vidence pertaining to periods prior to 2004, giving due weight to
that evidence in terms of its contex t, relevance, and probative value". 1813 In contrast, the Panel
rejected arguments by the European Communities that the full amount of certain subsidies received
(or anticipated to be received) in 2007-2009 should be allocated, three years back in time, to the
2004-2006 reference period.1814
901. The parties' arguments also raised certain issu es with respect to the moment in time at which
price suppression, lost sales, and displacement or impe dance occur, and, in this connection, regarding
the probative value of evidence of orders for aircraft versus evidence of (actual) deliveries of aircraft.
The Panel considered that the specific modalities of how LCA are produced and sold means that price
suppression and lost sales for such products "should be understood to begin at the time at which an
LCA order is obtained (or an order is lost), and to continue up to and including the time at which that
aircraft is delivered (or not delivered)". 1815 This is because the terms and conditions of purchase are
set at the time of order, but only a fraction of the payment is made at that time. Complete payment
does not occur until delivery of the aircraft, years later. 1816 In contrast, the Panel considered that the
terms "imports" and "exports" in Article 6.3(a) and (b) of the SCM Agreement indicate that
displacement and impedance are forms of serious pr ejudice that arise only on delivery of the aircraft
to the customer. 1817 In other words, because displacement or impedance occurs only at the time of

1810Panel Report, para. 7.1674.
1811Panel Report, para. 7.1674.
1812Panel Report, para. 7.1679. This finding has not been appealed. In reaching this finding, the Panel
rejected the United States' argument that such a reference period was too short in the light of the lengthy product
development cycles in the LCA industry, and the fact that the European Communities had challenged subsidies
granted over a long period of time, between 1989 and 2006. (Ibid., para. 7.1678)
1813Panel Report, para. 7.1679.
1814See, for example, Panel Report, paras. 7.252, 7.1812, and 7.1813.
1816Panel Report, para. 7.1685 (referring to C. Sche rer, Airbus SAS, "Commercial Aspects of the
Aircraft Business from the Perspective of a Manufacturer" (March 2007) (Panel Exhibit EC-11 (BCI), para. 49).
1817Panel Report, para. 7.1685.
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imports or exports, these phenomena arise only when LCA deliveries occur.
1818 The consequence of
this understanding of how the relevant provisions are to be applied in the context of the market for
LCA was, according to the Panel, that, in examining claims of significant price suppression and
significant lost sales under Article 6.3(c), data pertaining to both LCA orders and LCA deliveries
were relevant. In contrast, only delivery data can definitively establish claims of actual displacement
and/or impedance of imports or exports under Article 6.3(a) and/or (b).1819 The Panel added that, with
respect to displacement or impedance, since an orde r for an aircraft can be considered to represent a
future delivery, it may constitute evidence of a fu ture import or export that will be displaced or
impeded, that is, evidence of the existence of a threat of serious prejudice.1820
(b) Key aspects of the LCA industry
902. Several of the issues relating to serious prej udice implicate the structure of the LCA industry
as well as the nature of competition between LCA manuf acturers. Accordingly, in order to facilitate
an understanding of the Panel's findings and provide some context for our evaluation of the issues on
appeal, we begin by identifying key characteristics of the LCA industry. We do so on the basis of the
findings made by the Panel1821, as well as matters of common ground between the parties.
903. The LCA market is a duopoly. 1822 Airbus and Boeing each holds a significant share of the
market and possesses a degree of market power. E ach manufacturer's decision regarding the supply
and pricing of its products has the ability to influenc e the pricing of the other and, more generally, the
market price. 1823 Both the type and quantity of new LCA to be produced are determined by each
manufacturer in consultation with major airlines a nd leasing companies, who are the main purchasers
of LCA.1824 The characteristics sought by these customers have led to the development of broadly

1818Panel Report, para. 7.1686.
1819Panel Report, para. 7.1686.
1820Panel Report, para. 7.1686.
1821Before turning to its evaluation of the European Communities' claim of serious prejudice, the Panel
set out an overview of key aspects of the LCA industry "in order to provide relevant factual background to {its}
evaluation of the effects of the subsidies". (Panel Report, para. 7.1687)
1822Panel Report, para. 7.1688 and footnote 3550 thereto. The Panel cited evidence that, as of
31 December 2006, Boeing and Airb us LCA accounted for 90.9% of LCA in operation, and that other
producers, such as the Russian manufacturer Tupolev, did not account for a significant volume of supply and
operated only in certain regions and certain specific product categories. ( Ibid., footnote 3550 to para. 7.1688
(referring to R.P. Muddle, Airlines Capital Associates , Inc., "The Dynamics of the Large Civil Aircraft
Industry" (2 March 2007) (Panel Exhibit EC-10), para. 16))
1823Panel Report, para. 7.1688.
1824Leasing companies accounted for approximately 17% of LCA orders and approximately 25% of
LCA deliveries between 2000 and 2006. (Panel Report, paras. 7.1688 and 7.1689)
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similar LCA models by Airbus and Boeing. Airbus and Boeing each offers a full line of LCA, and
both manufacturers source material and technology worldwide, often from the same suppliers.
1825
904. LCA are sold to customers thro ugh long-term contracts, often involving staggered deliveries
of aircraft over several years. The terms and conditions of each purchase contract are set at the time
the order is made, and include many different elem ents, such as aircraft specification, net price,
discounts, non-price concessions, and financing a rrangements. A non-refundable deposit is paid at
the time of signature of the order contract, and ma nufacturers generally use the cash flow generated
by such non-refundable deposits to finance production.
1826 Complete payment does not occur until
delivery of the aircraft. 1827 LCA purchase contracts provide both the basic airframe price, as well as
for the "escalation"1828 of that price to account for the time that elapses between the negotiation of the
price at the time of order and the delivery of the aircraft.
905. LCA production involves substantial upfront de velopment costs over a period of several
years, with a return over a considerably longe r period—18 years, on average. LCA production is
generally characterized by steep learning curves. 1829 The production costs of initial units of a new
LCA model are much higher than the production cost s of subsequent units once the manufacturer has
begun to realize learning curve efficiencies. Becau se such efficiencies are factored into an LCA
manufacturer's projected costs at the time of the la unch of the new aircraft programme, manufacturers
price initial units of LCA as though they were already at the bottom of the learning curve. 1830 At the
time of launch, the manufacturer sets pricing targets for the new aircraft that, over its projected life,
must exceed the manufacturer's fu lly loaded average production costs by an amount sufficient to
justify the investment. 1831 Technological innovation is a key element of competition in this industry,
and the period over which a particular aircraft model can be sold is largely determined by the life of
the technology that defines that model. As such technology becomes outdated, the LCA manufacturer

1825Panel Report, paras. 7.1688 and 7.1692.
1826Panel Report, para. 7.1685 (referring to C. Sche rer, Airbus SAS, "Commercial Aspects of the
Aircraft Business from the Perspective of a Manufacturer" (March 2007) (Panel Exhibit EC-11 (BCI), para. 49).
1827Panel Report, para. 7.1685 (referring to C. Sche rer, Airbus SAS, "Commercial Aspects of the
Aircraft Business from the Perspective of a Manufacturer" (March 2007) (Panel Exhibit EC-11 (BCI), para. 49).
1828Panel Report, para. 7.1685.
1829Panel Report, para. 7.1691. The Panel explained th at "{t}he learning curve refers to the negative
correlation between cumulative output and unit cost: the more aircraft of a given type of LCA produced by a
firm, the less it costs to produce the next unit of that aircraft". ( Ibid., footnote 3561 to para. 7.1691 (referring to
Professor L.M.B. Cabral, "Impact of Development Subs idies Granted to Boeing" (New York University and
CEPR, March 2007) (Panel Exhibit EC-4), para. 53))
1830Panel Report, para. 7.1691 (referring to Dr. J. Jord an and Dr. G. Dorman, "Reply to the Report of
Professor Cabral" (NERA Economic Consulting, 2007) (Panel Exhibit US-3), p. 15).
1831Panel Report, para. 7.1691.
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will need to make major capital investments in ne w technologies to maintain a competitive product
offering and to continue making sales.
1832
906. Because of the importance of aircraft acquis itions to customers' businesses, every sales
campaign involves a focus on the unique needs of the particular customer. Differences in price,
capacity, and direct operating cost are the most significant factors that determine the outcome of LCA
sales campaigns.
1833 Customers are sophisticated, and they make extensive technical and economic
evaluations of LCA manufacturers' proposals. 1834 This involves estimating the present value of costs
associated with the acquisition of a new fleet of aircra ft (for example, price, maintenance costs, direct
and indirect operating costs, financing, training co sts, costs associated with the introduction of new
LCA) against the present value of the revenue stream expected to be generated by the proposed fleet.
The resultant calculation is the net present value to the customer of the proposal. 1835 Both parties
agreed before the Panel that the best overall ne t present value is typically determinative of the
outcome of a sales campaign and that, because the performance characteristics of the competing LCA
are fixed at the time of a sales campaign, the only variables that can be m odified during such a
campaign are the price and price-related concessions.
1836 Price concessions can sometimes offset
disadvantages associated with non-price factors. 1837 According to the Panel, leasing companies tend
to be more focused on price than airline customers. 1838 Prices obtained by leasing companies can
serve as a form of benchmarking on prices for new LCA.1839

1832Panel Report, para. 7.1691.
1833Panel Report, para. 7.1694.
1834Although engines account for between 20% and 30% of the total cost of LCA, LCA customers
typically negotiate concessions on the engine purchase with engine manufacturers separately from their LCA
purchase negotiations with airframe manufacturers. (Panel Report, para. 7.1690)
1835Panel Report, para. 7.1694.
1836European Communities' response to Panel Questio n 81, para. 321: "{A}lthough a multitude of
factors are involved during the course of a sales campaign, in the end, the only element that can still be
negotiated is the final price, or some price-related other concession"; United States' comments on the
European Communities' response to Panel Question 81, para. 275: "{T}he United States agrees {with the
European Communities} that the performance characteristics of the competing Boeing and Airbus large civil
aircraft are set at the time of the sales campaign and that the variable in the campaig ns is price and price/non-
price concessions".
1837Panel Report, para. 7.1694.
1838Panel Report, footnote 3567 to para. 7.1694 (referring to C. Scherer, Airbus SAS, "Commercial
Aspects of the Aircraft Business from the Perspective of a Manufacturer" (March 2 007) (Panel Exhibit EC-11
(BCI), para. 36), and footnote 3557 to para. 7.1689 (referring to R.P. Muddle, Airline Capital Associates, Inc.,
"The Dynamics of the Large Civil Aircraft Industry" (March 2007) (Panel Exhibit EC-10), para. 26).
1839Panel Report, para. 7.1689. The Panel also observed that, during the 2000-2006 period, sales to
leasing companies accounted for a rela tively higher proportion of Airbus sales (20%) as compared to Boeing
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907. LCA producers set prices in relation to, inter alia, the development costs for a particular LCA
programme and the prices of competing LCA.
1840 At the time an LCA order is placed, the negotiated
price1841 is typically lower than the airframe prices liste d in publicly available materials, due to price
concessions and credits offered by the manufacturer. 1842 The Panel "accept{ed} evidence that Boeing
changed its pricing policy in late 2004/2005 and became much more 'aggressive' on price".1843
908. During the course of its evaluation of the European Communities' claim of serious prejudice,
the Panel referred to certain additional dynamics w ithin the LCA industry. First, a subsidy that
enhances an LCA manufacturer's ability to develo p innovative technologies for application to its
aircraft will potentially give rise to a significant competitive advantage to that manufacturer. 1844
Second, in at least some instances, competition between rival LCA manufacturers is affected by
so-called "switching costs".
1845 Switching costs refer to the costs that buyers who operate one
particular family of aircraft must incur to switc h to a new supplier. Such costs result from, for
example, the need for additional training for pilots or in respect of aircraft maintenance when different

1840Panel Report, Appendix VII.F.2 – The Cabral Model, p. 779, para. 74. The Panel took account of
evidence to the effect that, "at the time of the decision to launch an LCA programme, Boeing bases its pricing
on (i) the price it believes the LCA will command over its lifetime, and (ii) the projected volume of sales for that
LCA, against (iii) the costs of the LCA programme (inc luding non-recurring investments and recurring costs
such as anticipated learning curve ef ficiencies)" and that, "once the launch decision is made, pricing is 'market
driven' in the sense that Boeing aims to achieve the highest market value for its products in light of market
conditions". ( Ibid., footnote 4262 to para. 74 (quoting Statement of Clay Richmond (Panel Exhibit US-275
(HSBI)); and referring to C. Scherer, Airbus SAS, "Commercial Aspects of the Aircraft Business from the
Perspective of a Manufacturer" (March 2007) (Panel Exhibit EC-11 (BCI), para. 105)) In response to a question
from the Panel, the United States explained that:
Boeing's pricing decisions, which look for the optimal or profit-maximizing
price, take a number of factors into account, including: (1) the pricing of its
competitor, Airbus, (2) the strength and elasticity of demand, (3) its
expectations regarding future market co nditions, (4) its strategic interests in
particular sales campaigns, (5) the implications of a price reduction for
futures sales and for the residual values of aircraft previously sold, and
(6) changes in its product-specific fixed and variable costs, as well as in its
general costs.
(United States' response to Panel Question 298, para. 522 (original emphasis))

1841The Panel explained that, fr om the perspective of a customer, "the 'net flyaway price' of an aircraft
consists of the 'total aircraft price' less credits and price concessions offered by the LCA manufacturer"; as well
as discounts offered by the engine manufacturer and by suppliers of buyer furnished equipment. (Panel Report,
para. 7.1693) The total aircraft price, in turn, consists of the airframe basic list price, plus charges for:
(i) changes to standard aircraft specifications; ( ii) buyer furnished equipment; (iii) supplier furnished
equipment; and (iv) the engine basic list price. (Ibid.)
1842Depending upon the number of years between the order and delivery of aircraft and the escalation
terms agreed at the time the order is placed, price escala tion factors can significantly impact the purchase price
ultimately paid upon delivery. (See Panel Report, para. 7.1685 (referring to C. Scherer, Airbus SAS,
"Commercial Aspects of the Aircraft Business from the Perspective of a Manufactur er" (March 2007) (Panel
Exhibit EC-11 (BCI), para. 49))
1843Panel Report, Appendix VII.F.2 – The Cabral Model, p. 777, para. 68.
1844Panel Report, para. 7.1769.
1845Panel Report, para. 7.1818.
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aircraft are introduced to a customer's fleet.
1846 The existence of switching costs implies that an
incumbent supplier has an advantage in a particular sales campaign that the rival supplier will need to
overcome in its overall offer. 1847 Third, certain LCA sales campaigns are more price-sensitive and
more competitive than others. 1848 The Panel noted that the signifi cance of each of the three factors
that tend to determine the outcome of LCA sales campaigns—price, capacity, and direct operating
cost—varies from campaign to campaign depending on buyers' fleets and business plans, as well as
whether the buyer is an airline or a leasing compan y, and whether a leasing company is purchasing to
satisfy known demand or on a speculative basis. 1849 The Panel also noted that the
European Communities distinguished between co mpetitive and non-competitive sales campaigns. 1850
Fourth, although demand for LCA slumped following the 11 September 2001 attacks on the World
Trade Center and the 2003 severe acute respiratory syndrome (SARS) epidemic, this contraction was
short-lived and the 2004-2006 period saw an unprecedented growth in demand for LCA.
1851
2. The Panel's Approach to Causation
909. The Panel began its analysis of serious prejudi ce by outlining the approach that it intended to
take in analyzing the European Communities' claim. The Panel indicated that these provisions require
the establishment of a causal link between the subs idies at issue and the form of serious prejudice

1846Panel Report, footnote 3776 to para. 7.1818.
1847While both the European Communities and the United States acknowledged the existence of
switching costs and the fact that they could induce an LCA manufacturer to offer price concessions to overcome
such costs, they disagreed as to the extent of their si gnificance, as well as with resp ect to the circumstances in
which they would play a role. For example, the European Communities argued that switching costs also imply
that a supplier's strategic incentives to compete aggressively to win a ne w customer include the incentive to
become the incumbent supplier and th ereby to gain an advantage in futu re sales campaigns to that same
customer. The European Communities suggested that sw itching cost considerations are relevant whenever a
buyer considers purchasing other aircraft within the same family as aircraft that it already owns, and that, on this
basis, 37.4% of Boeing's sales would involve switching cost considerations. (Panel Report, Appendix VII.F.2 –
The Cabral Model, pp. 768 and 773, paras. 37-38 and 55, respectively) The United States, in contrast, disputed
the existence of any link between current price discount s and the probability of future switching costs. The
United States also argued that switching costs could arise in campaigns only where a customer is considering the
purchase of aircraft that are the same variant, of the same generation, as its existing fleet, and that only 4.5% of
Boeing deliveries between 2000 and 2006 involved the type of switching costs that could have led Boeing to
make switching cost price concessions. (Ibid., pp. 772-773, paras. 49-54)
1848Panel Report, paras. 7.1694 and 7.1820.
1849Panel Report, footnote 3568 to para. 7.1694.
1850Panel Report, footnote 3393 to para. 7.1615 (re ferring to European Communities' first written
1851Panel Report, paras. 4.297 and 7.1782. The European Communities noted that, in their responses to
Panel Question 299, both parties agreed on the reasons for the strong demand in 2004-2006, namely: (i) strong
demand for air travel in emerging mark ets such as China; (ii) market lib eralization and the consequent opening
of new routes and growth of low-cost carriers; and (iii) increases in fuel costs that spurred airlines to replace
aging fleets. (See European Communities' response to Panel Question 299, paras. 712-714; United States'
response to Panel Question 299, para. 527; and European Communities' comments on the United States'
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alleged.
1852 The Panel considered nonetheless that, gi ven the absence of the precise type of
"causation" and "non-attribution" language found in Part V of the SCM Agreement, these provisions
afford panels a certain degree of discretion in selecting an appropriate methodology for analyzing
whether subsidies have caused the specific mark et phenomena listed in the subparagraphs of
Article 6.3.1853
910. The Panel remarked that the parties agreed that "determining whether the effect of the
subsidies at issue in the dispute is serious prej udice necessitates an economic analysis of how the
subsidies affected Boeing's commercial behaviour with respect to the pricing and product
development of particular LCA". 1854 The Panel resolved to adopt a "unitary" approach to causation,
under which it would not assess the indicia of comp etitive harm such as prices, sales, and market
share in isolation but, rather, as part of an integrated analysis of causation.1855
911. The Panel stated that it would adopt a counte rfactual approach in examining whether the
effects of the subsidies at issue were displacement or impedance, significant lost sales, or significant
price suppression. The Panel further explained that this counterfactual analysis would take place in
two stages. 1856 First, the Panel would examine the effects of the subsidies on Boeing's prices and
product offerings in the relevant product markets. Second, the Panel would ex amine the effects that
the subsidies had, through those effects on Boeing, on Airbus' prices and sales in the same product

1852Panel Report, para. 7.1656.
1853Panel Report, para. 7.1656 (referring to Appellate Body Report, US – Upland Cotton, para. 436).
1854Panel Report, para. 7.1657. (original emphasis) The Panel also noted that the
European Communities agreed with the United States that, "in order to cause adverse effects within the meaning
of Articles 5 and 6.3, subsidies must cause a change in the commercial behaviour of their beneficiaries to an
extent that results in adverse effects". ( Ibid., footnote 3493 to para. 7.1657 (quoting European Communities'
second written submission to the Panel, para. 646)) The European Communities asserted that Boeing's
commercial behaviour with respect to the pricing and product development of certain LCA would necessarily
have been different absent the challenged subsidies, whereas the United States contended that Boeing's
commercial behaviour would have been the same. (Ibid., para. 7.1657)
1855Panel Report, para. 7.1658. As explained by the Appellate Body in EC and certain member States –
Large Civil Aircraft , panels may undertake an analysis of serious prejudice under either a unitary or two-step
approach. Under a two-step approach, the analysis first seeks to identify the existence of the particular effects
listed in Article 6.3 of the SCM Agreement—such as displacement or signifi cant price suppression—and then, as
a second step, examines whether there is a causal relatio nship between such effects and the subsidies. Under a
unitary approach, the panel conducts a single, integrated analysis of both the existence of the market phenomena
and the issue of whether they have been caused by the subsidies at issue. Although the Appellate Body has said
that either approach is acceptable, it has expressed a preference for a unitary approach, because "it is difficult to
understand the market phenomena described in the various subparagraphs of Article 6.3 in isolation from the
challenged subsidies". (Appellate Body Report, EC and certain member States – Large Civil Aircraft ,
para. 1109) See also See Appellate Body Report, US – Upland Cotton, para. 431; and Appellate Body Report,
US – Upland Cotton (Article 21.5 – Brazil), para. 354.
1856Panel Report, para. 7.1659. We emphasize that this "two-stage" approach of the Panel was not the
same as the "two-step" approach adopted by the panels in EC and certain member States – Large Civil Aircraft
and US – Upland Cotton , as explained in the preceding footnote 1855. This Panel explained that it would
conduct a unitary analysis of causation, but that, in doing so, it would consider the two stages through which the
alleged subsidy effects operated: first, the effects on Boeing, and, second, the consequent effects on Airbus.
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markets.
1857 The Panel added that it would undertake an evaluation of possible non-attribution factors
at both stages of its integrated analysis of causation.1858 The Panel expressed the view that proceeding
through the approach that it had outlined would enable it to determine whether "there is a genuine and
substantial relationship of cause and effect between the subsidy in question and the displacement or
impedance, significant lost sales, or significant price suppression".1859
912. In setting out the above approach, the Panel did not extensively elaborate its understanding of
the requisite causal link pursuant to Articles 5(c) and 6.3 of the SCM Agreement. Although neither
participant has appealed the Panel's articulation of its intended approach, we nevertheless consider it
useful to recall briefly the main elements of a causation analysis under Part III of the SCM Agreement
because of the centrality of the issue of causation to many of the claims of error raised in this appeal.
913. A plain reading of the language of Article 5 ("No Member should cause, through the use of
any {specific subsidy} … (c) serious prejudice to the interests of another Member" 1860); of Article 6.2
("serious prejudice shall not be found if the subsid izing Member demonstrates that the subsidy in
question has not resulted in any of the effects enumerated in {Article 6.3}" 1861); and of Article 6.3
(which provides that serious prejudice may arise when "the effect of the subsidy"1862 is one or more of
the market phenomena listed in that provision) mak es clear that, in disputes involving claims under
Part III of the SCM Agreement, a complainant must demonstrate not only the existence of the relevant
subsidies and the adverse effects to its interest s, but also that the subsidies at issue have caused such
effects.1863 The Appellate Body has consistently articul ated the causal link required as "a genuine and
substantial relationship of cause and effect". 1864 In other words, the subsidies must contribute, in a

1857Panel Report, para. 7.1659.
1858Panel Report, para. 7.1660. The Panel explained that, "in conducting our analysis of whether the
subsidies affected Boeing's pricing and product offerings, we will also analyze the e ffects of other factors that
are alleged to have affected that behaviour" and that, "i n analyzing the effects of the subsidies on Airbus' prices
and sales, we will consider the effect of factors other than Boeing's pricing and product offerings on Airbus'
prices and sales in each of the three product markets". (Ibid.)
1859Panel Report, para. 7.1662.
1860Emphasis added.
1861Emphasis added.
1862Emphasis added.
1863This fundamental precept was reco gnized by the first panel to assess a claim under Part III of the
SCM Agreement. (Panel Report, Indonesia – Autos, para. 14.154)
1864See, for example, Appellate Body Report, US – Upland Cotton, para. 438; Appellate Body Report,
US – Upland Cotton (Article 21.5 – Brazil) , para. 374; and Appellate Body Report, EC and certain member
States – Large Civil Aircraft , para. 1232. In identifying the nexus that must be established between the
subsidies at issue and the relevant market effects, the Appellate Body has drawn to some extent on jurisprudence
with respect to the causation requirements in trade re medy cases, while at the same time cautioning that the
explicit causation requirements that the covered agreements prescribe in connection with anti-dumping,
countervailing duty, and safeguards investigations "apply in different contexts and with different purposes" and,
therefore, "must not be automatically transposed into Part III of the SCM Agreement". (Appellate Body Report,
US – Upland Cotton, para. 438)
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"genuine"
1865 and "substantial" 1866 way, to producing or bringing about one or more of the effects, or
market phenomena, enumerated in Article 6.3.
914. When tasked with determining whether the causal link in question meets the requisite
standard of a "genuine and substantial" causal re lationship, a panel will often be confronted with
multiple factors that may have contributed, to vary ing degrees, to that effect. Indeed, in some
circumstances, it may transpire that factors other th an the subsidy at issue have caused a particular
market effect. Yet the mere presence of other causes that contribute to a particular market effect does
not, in itself, preclude the subsidy from being found to be a "genuine and substantial" cause of that
effect. Thus, as part of its assessment of the causal nexus between the subsidy at issue and the
effect(s) that it is alleged to ha ve had, a panel must seek to unde rstand the interactions between the
subsidy at issue and the various other causal factor s, and make an assessment of their connections to,
as well as the relative importance of the subsidy a nd of the other factors in bringing about, the
relevant effects. In order to find that the subsidy is a genuine and substantia l cause, a panel need not
determine it to be the sole cause of that effect, or even that it is the only substantial cause of that
effect. A panel must, however, take care to ensure that it does not attribute the effects of those other
causal factors to the subsidies at issue
1867, and that the other causal factors do not dilute the causal link
between those subsidies and the alleged adverse effect s such that it is not possible to characterize that
link as a genuine and substantial relationship of cause and effect. 1868 The subsidy at issue may be
found to exhibit the requisite causal link notwithstan ding the existence of other causes that contribute
to producing the relevant market phenomena if, having given proper consideration to all other relevant
contributing factors and their effects, the panel is satisfied that the contribution of the subsidy has
been demonstrated to rise to that of a genuine and substantial cause.
915. Finally, we note that a demonstration that subs idies are a genuine and substantial cause of the
alleged serious prejudice is a fact-intensive exerci se, and one that inevitabl y involves extensive, case-
specific evidence. The manner in which a complain ant may seek to demonstrate the existence of the

1865The "genuine" nature of the causal link requires a complainant to show that the nexus between
cause and effect is "real" or "true". Dictionary definitions of "genuine" include "{h}aving the character claimed
for it: real, true, not counterfeit", and "{n}atural or proper to a person or thing". ( Shorter Oxford English
Dictionary, 6th edn, A. Stevenson (ed.) (Oxford University Press, 2007), Vol. 1, p. 1094)
1866As for the "substantial" component of the causal relationship, this concerns the relative importance
of the causal agent (the subsidies at issue) in bringing about the adverse effect(s) in question. Dictionary
definitions of "substantial" include "{h}aving solid wort h or value, of real significance; solid; weighty;
 important, worthwhile" and "{o}f ample or consider able amount or size; sizeable, fairly large". ( Shorter
Oxford English Dictionary, 6th edn, A. Stevenson (ed.) (Oxford University Press, 2007), Vol. 2, p. 3088)
1867Appellate Body Report, US – Upland Cotton , para. 437; Appellate Body Report, EC and certain
member States – Large Civil Aircraft, para. 1232.
1868Appellate Body Report, US – Upland Cotton (Article 21.5 – Brazil) , para. 375; Appellate Body
Report, EC and certain member States – Large Civil Aircraft, para. 1376.
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effects and the links between the subsidies at i ssue and those effects, and the type of supporting
evidence that may be adduced, are likely to vary co nsiderably. Even though each panel's assessment
will turn very much on the particular facts and circum stances of the case, it must not deviate from the
requirements outlined above.
3. The Panel's Analysis of "Technology Effects" and "Price Effects"
916. The Panel observed that, in its submissions, the European Communities had distinguished,
"based on the nature of the subsidies" 1869 between, on the one hand, the effects of the subsidies
benefiting Boeing's 787 family of LCA and, on the ot her hand, the effects of the subsidies benefiting
Boeing's 737NG and 777 families of LCA. The European Communities alleged that all of the
subsidies had "price effects" on all three of these Boeing LCA families in all three relevant product
markets, because the subsidies provided Boeing with the ability to charge lower prices either by
reducing Boeing's marginal unit costs or by increasing Boeing's non-operating cash flow. In addition,
the European Communities contended that the aeronautics R&D subsidies had "technology effects" in
one of those product markets in that they "helped Boeing develop, launch and produce a
technologically-advanced 200-300 seat LCA {the 787} much more quickly than it could have on its
own".
1870 Based on this understanding, the Panel deci ded to begin its analysis by examining the
alleged "technology effects"—the effects of the aeronautics R&D subsidies on Boeing's development
of technologies for the 787—before subsequently c onsidering whether, with respect to all three
allegedly subsidized Boeing LCA (the 737NG, the 787, and the 777), all of the subsidies at issue had
effects on Boeing's pricing of those models of LC A and, thereby, caused serious prejudice to the
interests of the European Communities.1871
(a) The Panel's analysis of the "technology effects" of the aeronautics
R&D subsidies
917. The Panel understood the European Commun ities to argue that the aeronautics R&D
subsidies: (i) accelerated Boeing's development of new and advanced LCA technologies, as well as
design and manufacturing processes, thereby enabling Boeing to bring the 787 to the market much
sooner than it could have on its own; (ii) limit ed and delayed Airbus' ac cess to innovative R&D
technologies; (iii) increased the marketability of the 787; and (iv) allowed a rapid ramp-up of 787
deliveries.1872 The European Communities sought to dem onstrate that the aeronautics R&D subsidies

1869Panel Report, para. 7.1696.
1870Panel Report, para. 7.1697 (quoting European Communities' first written submission to the Panel,
para. 1343).
1871Panel Report, para. 7.1699.
1872Panel Report, para. 7.1601.
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have provided Boeing with technologies capable of commercial exploitation in key areas—notably,
composites technologies—as well as with knowledge, experience, and confidence relevant to the
development of successful commercial technologies and processes.
1873 Such knowledge, experience,
and confidence were alleged to have enabled Bo eing to assess the validity of different design,
manufacturing, and assembly solutions even when the technologies applied to the 787 were not the
same as those studied pursuant to the NASA a nd USDOD programmes, and to leverage the
knowledge effects gained from its participation in those programmes in Boeing's own related R&D
activity.1874
918. In examining the alleged effects of the subs idies in the 200-300 seat LCA market, the Panel
examined: (i) the objectives of the aeronautics R&D subsidies; (ii) their structure and design;
(iii) their operation; and (iv) the conditions of co mpetition in that market. Having done so, the Panel
found, as a first step, that "the aeronautics R&D s ubsidies contributed in a genuine and substantial
way to Boeing's development of technologies for the 787" and, thereby, "conferred a competitive
advantage on Boeing". 1875 According to the Panel, it was "clear" that, "absent the aeronautics R&D
subsidies, Boeing would not have been able to launc h an aircraft incorporating all of the technologies
that are incorporated on the 787 in 2004, with promised deliveries commencing in 2008".1876
919. The Panel next considered the evidence rela ting to the effects of the aeronautics R&D
subsidies on Airbus' prices and sales in the 200-300 seat LCA market and found that, in the
2004-2006 reference period, the effect of those subsid ies was serious prejudice in the form of a threat
of displacement and impedance of EC exports in third-country markets within the meaning of
Article 6.3(b) of the SCM Agreement, and significant lost sales and significant price suppression,
within the meaning of Article 6.3(c) of the SCM Agreement.
1877

1873Panel Report, para. 7.1601 (referring to Europ ean Communities' first written submission to the
Panel, para. 1352).
1874Panel Report, para. 7.1604.
1875Panel Report, para. 7.1773.
1876Panel Report, para. 7.1775.
1877Panel Report, para. 7.1797. According to the Panel, but for the aeronautics R&D subsidies:
(i) Airbus would have obtained additional orders and the European Communities would not have suffered the
threat of displacement or impedance of exports from third-country markets; (ii) Airbus would have made
additional sales and would not have suffe red significant lost sales; and (iii) prices for the relevant Airbus LCA
would have been significantly higher and Airbus would not have suffered significant price suppression. ( Ibid.,
para. 7.1794)
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(b) The Panel's analysis of the "price effects" of the subsidies
920. The Panel's analysis of the "price effects" of th e subsidies was divided into two parts. First,
the Panel examined the effects of the tied tax subsid ies, that is, the tax subsidies directly tied to the
production and sale of individual aircraft.
1878 To the extent that they applied to Boeing products in
each market 1879, the Panel found that these tied tax subs idies had the effect of significantly
suppressing Airbus' prices and of causing Airbus to lose significant sales, and of displacing and
impeding EC exports in third-country mark ets in the 100-200 seat and the 300-400 seat LCA
markets.
1880 With respect to the 200-300 seat LCA market, the Panel considered that it would not be
appropriate to conduct an aggregated analysis of the "technology effects" of the aeronautics R&D
subsidies and the "price effects" of the tied tax s ubsidies because the two grou ps of subsidies operate
"through entirely distinct causal mechanisms". 1881 Only two of the tied tax subsidies (the B&O tax
rate reductions1882) applied in that product market and, with respect to their effects, the Panel found
that there was "insufficient evidence … to conclude that these subsidies are of a magnitude that would
enable them, on their own, to have such an effect on Boeing's prices of the 787 as would lead to a
finding that their effects in the 200-300 seat wide-body market were significant price suppression,
significant lost sales or displacement or impe dance of European Communities imports into the
United States or exports to third countries".
1883
921. Second, the Panel considered the effects of subs idies that were not linked to the production of
individual LCA and were instead alleged to have increased Boeing's non-operating cash flow and,
thereby, enhanced Boeing's alleged abilit y to engage in "aggressive pricing". 1884 Although the
European Communities had included the aeronautics R&D subsidies within this category, the Panel
decided not to include the effects of these subsidies in this part of its analysis on the grounds that,
having already found that the aeronautics R&D subsidies, through their technology effects, caused
serious prejudice to the European Communities in the 200-300 seat LCA market, "it would be

1878Panel Report, paras. 7.1801 and 7.1806.
1879One of the tied tax subsidies—the City of Everett B&O tax rate reduction—did not apply in respect
of the manufacture and sale of the 737NG and thus did not form part of the Panel's analysis of the effects of the
subsidies alleged to reduce marginal unit costs in the 100-200 seat LCA market. (Panel Report, para. 7.1803)
1880Panel Report, para. 7.1823.
1881Panel Report, para. 7.1824.
1882The Panel's analysis of the FSC/ETI subsidies pr oceeded on the basis that these subsidies could
have had effects only in the 100-200 seat and 300-400 seat LCA markets, and not in the 200-300 seat LCA
market. The Panel explained that this was due to the fact that the United States had repealed certain aspects of
the grandfathering of FSC and ETI tax breaks for tax years beginning after 2006, and that no 787s would be
delivered before that date, as well as the fact that the European Communities itself did not claim that the
FSC/ETI subsidies affected the prices of the 787 and did not allocate the FSC/ETI subsidies to the 787 for
purposes of its serious prejudice arguments. (Panel Report, para. 7.1802)
1883Panel Report, para. 7.1824.
1884Panel Report, para. 7.1825.
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over-counting to additionally analyze their eff ects based on a different understanding of their
operation, namely, as freeing up additional cash for Bo eing to use to lower the prices of its LCA".
1885
Accordingly, the Panel analyzed th e effects of the other subsidies alleged to have increased Boeing's
non-operating cash flow—the remaining subsidi es—which totalled some US$550 million between
1989 and 2006. The Panel was "not pe rsuaded that subsidies of this nature and of this amount have
affected Boeing's prices in a manner that could be said to give rise to serious prejudice to the
European Communities' interests".1886
4. Order of Analysis of the Issues on Appeal Relating to the Panel's Serious
Prejudice Findings
922. In section B, we analyze the United States' appeal of the Panel's findings with respect to the
"technology effects" of the aeronautics R&D s ubsidies. In section C, we consider the
European Union's appeal, under Article 11 of th e DSU, of the Panel's finding that there was
insufficient evidence on the reco rd to enable it to assess the effects of the USDOD RDT&E
programmes (other than the ManTech and DUS&T pr ogrammes). In section D, we deal with the
United States' appeal of the Panel's findings regardin g the "price effects" of the tied tax subsidies at
issue. Finally, in section E, we address the European Union's appeal of the Panel's decisions not to
undertake a collective assessment of certain groups of subsidies and their effects for purposes of its
serious prejudice analysis.
B. Technology Effects
1. Introduction
923. The Panel structured its analysis of the alle ged "technology effects" of the aeronautics R&D
subsidies in two stages, beginning with an analysis of the effect of the subsidies on Boeing's offering
of the 787, and followed by an analysis of the effect of the subsidies on Airbus' prices and sales. 1887
The Panel explained that, at each stage of its analysis, it would address possible relevant
non-attribution factors.1888 The Panel also clarified that its overall approach to the analysis of whether
the effects of the aeronautics R&D subsidies were any of the forms of serious prejudice alleged by the
European Communities would be counterfactual in nature.1889

1885Panel Report, para. 7.1826.
1886Panel Report, para. 7.1828.
1887Panel Report, paras. 7.1659 and 7.1660; see also paras. 7.1701-7.1797.
1888Panel Report, para. 7.1660.
1889Panel Report, paras. 7.1661 and 7.1662; see also paras. 7.1774 and 7.1775.
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924. At the conclusion of the first stage of its analysis, in which it considered the effect of the
aeronautics R&D subsidies on Boeing's offering of the 787, the Panel stated that:
… the aeronautics R&D subsidies contributed in a genuine and
substantial way to Boeing's development of technologies for the 787
and that, in the light of the conditions of competition in the LCA
industry, these subsidies conferred a competitive advantage on
Boeing.
1890
925. Moreover, the Panel found that:
… absent the aeronautics R&D subsidies, Boeing would not have
been able to launch an aircraft in corporating all of the technologies
that are incorporated on the 787 in 2004, with promised deliveries
commencing in 2008.1891
926. At the conclusion of the second stage of its analysis, in which it considered the effect of the
aeronautics R&D subsidies on Airbus' prices and sales, the Panel found that:
… but for the effects of {the aeronautics R&D subsidies} (i) Airbus
would have obtained additional orde rs for its A330 and Original
A350 LCA from customers in third country markets Australia,
Ethiopia, Kenya and Iceland in 2005 and 2006, and the
European Communities would not have suffered the threat of
displacement or impedance of exports from third country markets
within the meaning of Article 6.3(b) of the SCM Agreement; (ii)
Airbus would have made additional sales of the A330 and Original
A350 over the same period, and to that extent, would not have
suffered significant lost sales in the 200-300 seat wide-body LCA
product market, within the meaning of Article 6.3(c) of the
SCM Agreement; and (iii) prices of the A330 and the Original A350
in the 2004 to 2006 period would have been significantly higher, and
to that extent, Airbus would not have suffered significant price
suppression in the 200-300 seat wide-body LCA product market,
within the meaning of Article 6.3(c) of the SCM Agreement.
1892
(original emphasis)
927. On the basis of these two intermediate conclusions, the Panel found overall that:
… the effect of the aeronautics R&D subsidies is a threat of
displacement and impedance of European Communities' exports from
third country markets within the meaning of Article 6.3(b) of the
SCM Agreement, with respect to the 200-300 seat wide-body LCA
product market, and significant lost sales and significant price
suppression, within the meaning of Article 6.3(c) of the
SCM Agreement with respect to that product market, each of which

1890Panel Report, para. 7.1773.
1891Panel Report, para. 7.1775.
1892Panel Report, para. 7.1794.
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constitute serious prejudice to the interests of the
European Communities within the meaning of Article 5(c) of the
SCM Agreement.
1893
928. The United States seeks reversal of this overall finding by the Panel, as well as a number of
intermediate conclusions leading up to it made by the Panel at the first and second stages of its
causation analysis. In subsection 2, we provide relevant background in formation regarding the
Boeing 787. In subsections 3 and 4, we assess the Un ited States' appeal of the Panel's conclusion, at
the first stage of its analysis, that the aeronautics R& D subsidies contributed in a genuine and
substantial way to the developmen t of the 787 and its launch in 2004. In subsection 5, we consider
the United States' appeal of the Panel's use of the counterfactual analysis as it relates to both stages.
Finally, in subsection 6, we consider the United St ates' challenge to the Panel's conclusion, at the
second stage of its analysis, regarding the effects of the aeronautics R&D subsidies on Airbus through
Boeing's product offering.
2. Background Information regarding the Boeing 787
929. In order to provide context for consideration of the United States' claims on appeal, we find it
useful to provide a brief background of the Boeing 787, including its technological features, the
reasons for its introduction into the 200-300 seat LC A market and the competition it faced in that
market, as well as relevant market share and pricing data for the models in that market. We do so on
the basis of the factual findings of the Panel and th e facts of the case that were not contested between
the parties.
930. During the relevant period— 2004 to 2006—the LCA within the 200-300 seat LCA market
comprised Boeing's 767
1894 and 787 and Airbus' A330, Original A350, and A350XWB-800.1895
931. In the late 1990s, Boeing's assessment of the market led it to form the view that "route
fragmentation would lead to a larger number of lower-volume routes, best served by a mid-sized,
extended range aircraft"
1896, and it determined to develop a ne w LCA product incorporating advanced
technologies to meet these market needs. 1897 This led to the development of the 787, which was

1893Panel Report, para. 7.1797. See also paras. 7.1854(a) and 8.3(a)(i).
1894Panel Report, paras. 7.1774 and 7.1783.
1895Panel Report, paras. 7.1670 and 7.1672.
1896Panel Report, para. 7.1774.
1897See "The new-technology Boeing 787 Dreamliner, which makes extensive use of composite
materials, promises to revolu tionize commercial air travel," Aviation Week & Space Technology Market
Supplement, 14 March 2005 (Panel Exhibit EC-701).
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launched in 2004 with deliveries to customers promised as from 2008.
1898 The Panel identified and
described six technologies that the European Comm unities alleged to be incorporated in the 787. 1899
The most notable of these technologies is the use of all composite fuselage and wings 1900 and the
manufacturing processes related thereto. 1901 The other five technologies 1902 relate to "more-electric"
architecture; open systems architecture; enhanced aerodynamics and structural design; noise
reduction; and health management systems.
1903
932. In the years preceding the launch of the 787 in 2004, the 767 and the A330 were the main
aircraft products available in the 200-300 seat LCA market. 1904 Between 2000 and 2003, the A330's
share of the market was consistently greater than that of the 767 and, in 2003, stood at 82%.
Although demand for aircraft had fallen in 2002 following the 11 September 2001 attacks on the
World Trade Center and the SARS epidemic
1905, demand for all LCA rebounded in subsequent years
due to the demand for air travel in emerging markets 1906, market liberalization 1907, and because
increases in the cost of fuel led airlin es to replace older inefficient aircraft. 1908 There was, in
particular, substantial growth in the size of th e 200-300 seat LCA market during the reference period,
that is, 2004-2006.1909 Both Airbus and Boeing increased the volume of their sales within this product
market during the reference period, as compared to the immediately preceding period, that is, 2002
and 2003.1910 With respect to market share, Airbus' share (comprising the A330 and A350) of the
market declined by 36% between 2003 and 20041911, while, from 2004 to 2006, Boeing's market share

1898The Panel noted that, even though it ultimately turned out that Boeing was unable to deliver the 787
in 2008, the relevant fact was that, "in 2004, Boeing believed that it would be able to make its first deliveries
in 2008 (and made contractual promises to its customers to this effect)". (Panel Report, footnote 3712 to
para. 7.1777)
1899Panel Report, Appendix VII.F.1.A, p. 729, para. 1 (referring to European Communities' first written
submission to the Panel, para. 1350). The Panel described these technologies, as well as how they relate to the
technologies featured on the 787, in Appendix VII.F.1.B, p. 729.
1900Panel Report, Appendix VII.F.1.B, pp. 729-733 , paras. 3-10 and VII.F.1.C, pp. 738-739,
paras. 20-25. The Panel defined a "composite" as a co mposition of two or more materials on a macroscopic
scale, working together to produce material properties that are different from the properties of those elements on
1901Panel Report, Appendix VII.F.1.C, pp. 738-739, provides some background information concerning
the design and manufacture of the composite fuselage.
1902Panel Report, Appendix VII.F.1.A, p. 729, para. 1.
1903Panel Report, Appendix VII.F.1.B, pp. 733-737, paras. 12-19.
1904Panel Report, paras. 7.1774, 7.1775, 7.1777, and 7.1783.
1905Panel Report, para. 7.1782.
1906United States' response to Panel Question 299, para. 527; European Communities' response to
Panel Question 299, para. 712.
1907United States' response to Panel Question 299, para. 527; European Communities' response to
Panel Question 299, para. 712.
1908United States' response to Panel Question 299, para. 527; European Communities' response to
Panel Question 299, para. 712.
1909Panel Report, tables at paras. 7.1782 and 7.1783.
1910Panel Report, para. 7.1783.
1911Panel Report, para. 7.1785.
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(comprising the 767 and 787) was more than Airbus ', ranging in these years between 54% and 66% of
the 200-300 seat LCA market.
1912
933. While list prices are higher than the actual pr ices paid for LCA, we note that Boeing's list
prices for the 767 ranged between $118 million an d $160.5 million, and between $138 million and
$188 million for the 787. 1913 For Airbus, sample list prices were $160 million and $178 million for
the A330 and $162 million and $179 million for the Original A350.1914
3. The Panel's Analysis of the Effects of the Aeronautics R&D Subsidies on
Boeing
934. The first set of arguments by the United States relates to the Panel's conclusion, at the close of
the first stage of its analysis, that the aeronau tics R&D subsidies "contributed in a genuine and
substantial way to Boeing's development of tec hnologies for the 787 and that, in the light of the
conditions of competition in the LCA industry, th ese subsidies conferred a competitive advantage on
Boeing".1915 The Panel reached this conclusion after its consideration of four main analytical
elements: (i) the objectives of the aeronautics R&D subsidies; (ii) the structure and design of the
aeronautics R&D subsidies; (iii) the operation of the aeronautics R&D subsidies; and (iv) the
conditions of competition in the LCA industry. The Panel s upplemented its analysis of these four
pillars with a 27-page appendix to its Report—Appendix VII.F.1—in which it: (i) identified the six
technology areas alleged by the European Communities to be "key" features of the 787 1916;
(ii) explained the process of the "design, manufacture and assembly of the 787" 1917; and
(iii) summarized the arguments advanced by the parties regarding the relationship between the
aeronautics R&D subsidies and Boeing's development of the six technologies for the 787.1918
935. At the start of its analysis, the Panel explained that it would "focus primarily on the material
pertaining to research conducted by Boeing a nd McDonnell Douglas under the aeronautics R&D
programmes in the field of composites, and the composites technologies applied on the 787,

1912Panel Report, table at para. 7.1783.
1913These ranges of list prices are drawn from Panel Exhibit EC-664 ("2006 Boeing Jet Prices, as of
2 October 2006").
1914European Communities' first written submission to the Panel, Figure 11 at para. 1176.
1915Panel Report, para. 7.1773.
1916As we have noted above, these six technology areas were: (i) composites technologies, primarily
the design, development, and manufacturing of 787 composite fuselages and wings; (ii) more-electric
architecture; (iii) open systems arch itecture; (iv) enhanced aerodynamic s and structural design; (v) noise
reduction technologies; and (vi) health management systems. (Panel Report, Appendix VII.F.1.A, p. 729,
para. 1 (referring to European Communities' first written submission to the Panel, para. 1350))
1917Panel Report, Appendix VII.F.1.C, pp. 738-739, paras. 20-25.
1918Panel Report, Appendix VII.F.1.D, pp. 740-756, paras. 26-78.
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particularly under the ACT, AST and R&T Base pr ogrammes, which appear from the evidence to be
the most commercially and technologically significant programmes in this regard".
1919
936. The Panel then turned to consider the first pillar of its analysis, namely, the objectives of the
aeronautics R&D subsidies. The Panel referred to statements by NASA officials, as well as a NASA
report and US Congressional Budget Office documents
1920 confirming that the key objective of the
aeronautics R&D subsidies at issue was "the enhan cement of the competitiven ess and increase of the
market share of the U.S. industry, and Boeing in particular, vis-à-vis its international competitors".1921
937. Second, in its review of the structure and design of the eight NASA research programmes 1922
and the two USDOD research programmes 1923 at issue, the Panel delineated the objectives and
research priorities under each of these programmes. With respect to the NASA programmes, the
Panel summarized overall that:
… NASA consistently and pervasively expresses the objectives of,
and motivations behind, its aeronautics R&D programmes in terms of
promoting the competitiveness of the U.S. aeronautics industry
through technology development lead ing to superior and lower cost
products. The particular areas covered by these R&D programmes
appear to have been selected on the basis of their likely contribution
toward the commercial development of technologies that were
viewed as being of particular strategic importance to the
enhancement of the competitiveness of the U.S. industry. Closely
related to this, the evidence shows that the R&D was often
undertaken at the behest of and in close collaboration with the U.S.
industry. While the research performed by Boeing under the NASA
R&D programmes was not undertaken di rectly in the context of the
development and production of par ticular civil aircraft, the NASA
R&D programmes aimed at enhancing Boeing's ability to develop
technology for commercial purposes.
1924
938. As for the two USDOD RDT&E programmes, the Panel concluded that:
The objectives of {US}DOD's ManTech and DUS&T programmes
are not specifically expressed as being to provide a competitive
advantage to the U.S. aeronautics industry. Rather, these
programmes have the explicit objec tive of developing "dual-use"
R&D. To that end, they envisag e collaboration with industry in
developing technologies, including cost reduction processes and

1919Panel Report, para. 7.1702.
1920Panel Report, paras. 7.1705-7.1708.
1921Panel Report, para. 7.1704.
1922The ACT, AST, R&T Base, HSR, Computational Aerosciences project of the HPCC, QAT, VS, and
AS programmes. (Panel Report, paras. 7.1709-7.1737)
1923The ManTech and DUS&T programmes. (Panel Report, paras. 7.1738 and 7.1739)
1924Panel Report, para. 7.1709.
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practices that have application in the civil sector. In our view, the
objectives of these {US}DOD RDT&E programmes suggest that
subsidies funded under those programmes contribute to providing
Boeing with competitive advantages.
1925
939. The Panel then proceeded to the third pillar, and conducted a lengthy examination of the
operation of the aeronautics R&D subsidies. It began by recalling the strategic focus of the
aeronautics R&D subsidies, noting that the NASA subsidies "are precisely focused on those areas
which, from a commercial perspective, are considered to be the most crucial to the LCA industry in
the sense that they carry the greatest prospect of creating significant competitive advantage." 1926 The
Panel then noted that the aeronautics R&D subsid ies operated as collaborative research projects with
and for Boeing, and "complemented Boeing's internal product development efforts".1927 In the Panel's
view, this complementarity between NASA's and Boeing's own research efforts was apparent from
"the length of the research and development cycl e in the LCA industry and the timing of Boeing's
product development"; the "extensive breadth and depth of technologies" required to produce a
superior aircraft; and Boeing's collaboration w ith NASA in identifying and planning the research
tasks for NASA and the technical performance goals of the particular aeronautics R&D subsidies.1928
940. For the Panel, "{a}nother important aspect of the operation of the aeronautics R&D subsidies
is their role in reducing Boeing's R&D risk." 1929 Based on evidence from budget estimates for
NASA's R&T Base programme, as well as a NASA publica tion, the Panel found that "there are large
disincentives for private sector investment in long-term, high risk aeronautical {R&D}". 1930
According to the Panel, these "large disincen tives" stemmed from the "inability of individual
companies to fully capture the benefits of these rese arch efforts, as well as the length of the aircraft
research and development cycle and investment re coupment period, and the extensive breadth and
depth of technologies required to produce a superior aircraft."1931 The Panel noted that:

1925Panel Report, para. 7.1740.
1926Panel Report, para. 7.1742.
1927Panel Report, para. 7.1746.
1928Panel Report, para. 7.1746. In support of this finding, the Panel cited a Boeing conference paper
that discussed the path to development of a composite fuselage. The author of that paper explained that the
three phases of the NASA ACT programme, which had been originally envisaged to run from 1989-2002, "if
combined with Boeing internally funded efforts ... wo uld prepare {Boeing} for commitment to a composite
fuselage application" by 2002-2003. ( Ibid. (referring to L.B. Ilcewicz, "Advanced Composite Fuselage
Technology", Third NASA Advanced Composites Technology Conferences , NASA Conference Publication
3178, Part 1, Vol. 1 (1992) (Panel Exhibit EC-1338), excerpt, p. 110))
1929Panel Report, para. 7.1747.
1930Panel Report, para. 7.1747. In support, the Pane l referred to NASA R&T Base Budget Estimates,
at FY 1997, SAT 4.5; and at FY 1999, SAT 4.1.3 (Panel Exhibit EC-398)). See also NASA publication,
"Airborne Trailblazer", chap. 1 (Panel Exhibit EC-288), p. 2.
1931Panel Report, para. 7.1747 (referring to NASA R&T Base Budget Estimates, at FY 1997, SAT 4.5;
and at FY 1999, SAT 4.1.3 (Panel Exhibit EC-398)).
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… research conducted under th e NASA R&D subsidies occurs
through a gradual, iterative process in which failures and
abandonment of further development of particular technologies serve
as building blocks for newer technologies. In other words, even
unsuccessful research generates important knowledge and experience
that is applied to subsequent technology developments.
1932
941. The Panel therefore contemplated that research reduces risk, because, through a process of
"trial and error, development efforts are progressively focused on the most promising
technologies".1933
942. Finally, relying on a 1999 independent study provided by the European Communities—the
"Peisen Study" 1934—which sets out NASA's system of categorizing research according to its
"technology readiness level", or "TRL", the Panel ob served that NASA's role in the development of
higher-risk technologies resulted in "an accelerati on of the overall technology development process
for an airframe manufacturer like Boeing and would th erefore facilitate an earlier product launch than
would otherwise have been possible."1935
943. The Panel registered the disagreement between th e parties as to the relationship between the
technology concepts that Boeing and McDonnell Douglas studied pursuant to the NASA and USDOD
aeronautics R&D subsidies, on the one hand, and th e technologies actually applied to the 787, on the
other hand. It noted that, whereas the United Stat es had sought to emphasize the differences between
the two, the European Commun ities emphasized the continuities. 1936 The Panel, for its part,
considered that to focus on the differences between various technologies that may exist at particular
points in time would "artificially and inaccurately obscure the important links that exist between
them".1937 The Panel explained that such links lay, for example, in the fact th at the evidence before
the Panel was "consistent with the technologies prope rly being viewed essentially as efforts directed
to solving enduring technological problems", as well as with a "pattern whereby the technology
concepts studied under the NASA R&D subsidi es and the technologies applied to the 787 are
essentially part of the same process in which so lutions to technological problems are developed
(through a collective exercise of progressive learning through trial and error involving largely the
same teams of people over an extended period of time)."
1938 The Panel concluded that "technologies

1932Panel Report, para. 7.7148.
1933Panel Report, para. 7.1748.
 1934D.J. Peisen et al., Case Studies: Time Required to Mature Aeronautic Technologies to Operational
Readiness, Draft report (SAIC and GRA, Inc., November 1999) (Panel Exhibit EC-795). We provide further
details of the Peisen Study infra, para. 974.
1935Panel Report, para. 7.1748.
1936Panel Report, para. 7.1749 (referring to Affidavit of Alan Miller (Panel Exhibit US-1258)).
1937Panel Report, para. 7.1750.
1938Panel Report, para. 7.1750.
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that may, at any given moment, be portrayed as discrete and unrelated, are in fact more appropriately
regarded as being part of a single process of ite rative learning and advancement in pursuit of a
common technological goal."
1939
944. The Panel rejected arguments by the United States attributing the success of the technologies
developed for the 787 to factors other than the aeronautics R&D subsidies, including the efforts of
Boeing and its suppliers. In response to an ar gument that the 787 was the product of Boeing's own
past commercial experience and its significant in ternal R&D efforts, the Panel emphasized the
important contributions made by the aeronautics R&D subsidies to the early research efforts, as well
as the "complementarity and interdependence" 1940 between the work that Boeing and McDonnell
Douglas performed for NASA and Boeing's own aeronautics R&D efforts. Therefore, while the Panel
recognized Boeing's and its suppliers' "significant investments" 1941 towards the development of the
787, it found that, by 2004, these contributions ha d not outweighed the contribution made by the
aeronautics R&D subsidies to the development of the technologies used on the 787.1942
945. The Panel also held that the effects of th e aeronautics R&D subsidies could not be assessed
simply on the basis of the face value of the fina ncial contributions involved, which amounted to "at
least $2.6 billion".1943 Rather, the Panel found that, by their nature, the aeronautics R&D subsidies
"multiply the benefit from a given expenditure". 1944 In this regard, the Pa nel rejected the proposition
that "the effects of the aeronautics R&D subsidies can essentially be reduced to their cash value".1945
946. On the basis of the foregoing observations, the Pa nel concluded, with respect to the operation
of the aeronautics R&D subsidies, that they "are designed to develop and va lidate new technologies
for Boeing to commercialize", and that "it would be artificial to treat their contribution as having been
exhausted or so diminished as to no longer be making a genuine and substantial contribution to
Boeing's development of technologies for the 787."1946

1939Panel Report, para. 7.1750.
1940Panel Report, para. 7.1756.
1941Panel Report, para. 7.1757.
1942Panel Report, para. 7.1758.
1943Panel Report, para. 7.1760. This estimate was based on the Panel's earlier calculation of the value
of the NASA aeronautics R&D subsidies. The Panel did not quantify the value of the USDOD aeronautics
R&D subsidies. (See ibid., para. 7.1433)
1944Panel Report, para. 7.1760.
1945Panel Report, para. 7.1760.
1946Panel Report, para. 7.1764.
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947. Fourth, the Panel turned to the conditions of competition between Airbus and Boeing. It
noted the "intense competition"
1947 that characterizes the LCA industry, and opined that "a subsidy
that enhances an LCA manufacturer's ability to de velop innovative technologies for application to its
aircraft will potentially give rise to a significant competitive advantage to that manufacturer".1948
948. In this section, the Panel also responded to, and dismissed, arguments of the United States
that NASA aeronautics R&D subsidies do not conf er a competitive advantage on Boeing vis-à-vis
Airbus, because NASA-funded research is generally a pplicable conceptual research, the results of
which are publicly disseminated a nd equally available to Airbus. 1949 It similarly dismissed an
argument that many of the technologies that the European Communities attempted to link to the
research that Boeing and McDonnell Douglas perform ed for NASA and the USDOD pursuant to the
aeronautics R&D subsidies are supplied by third parties and are commercially available to Airbus.1950
949. Based on its assessment of these four pillars, th e Panel concluded that "the aeronautics R&D
subsidies contributed in a genuine and substantia l way to Boeing's development of technologies for
the 787 and that, in the light of the conditions of competition in the LCA industry, these subsidies
conferred a competitive advantage on Boeing."1951
4. The United States' Appeal
950. The United States argues that the Panel erred in finding that the aeronautics R&D subsidies
caused adverse effects to the in terests of the European Communities within the meaning of
Articles 5(c) and 6.3 of the SCM Agreement because they "contributed in a genuine and substantial
way to Boeing's development of technologies for the 787." 1952 The United States contends that the
Panel's conclusion that a "genuine and substantial" link exists is in error, because the Panel failed
properly to take into account its own findings that:
(a) much of the work that NASA funded bore a weak relationship to the 787 as it was not
directed toward the six critical 787 technologies identified by the Panel;
(b) even the NASA research most directly on the development pathway toward the 787 is
far removed from the ultimate technologies used on that aircraft;

1947Panel Report, para. 7.1765 (quoting Dr. J. Jordan and Dr. G. Dorman, "Reply to the Report of
Professor Cabral" (NERA Economic Consulting, 2007) (Panel Exhibit US-3), p. 18).
1948Panel Report, para. 7.1769.
1949Panel Report, paras. 7.1770 and 7.1771.
1950Panel Report, paras. 7.1771 and 7.1772.
1951Panel Report, para. 7.1773.
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(c) NASA funding was only one of many sources available to Boeing for technology
development and was unavailable for later stages of the research;
(d) non-subsidy sources were responsible for most of the technology eventually used to
make the 787 and for Boeing's ability to apply that technology to the 787; and
(e) the magnitude of the subsidies was small in relation to the cost of developing
the 787.
1953
951. According to the United States, "when consid ered in their totality", the above findings
demonstrate that the Panel could not properly ha ve determined that a genuine and substantial
relationship of cause and effect existed between the aeronautics R&D subsidies and the adverse
effects to the interests of the European Communities. 1954 The United States does not, however,
indicate whether we would have to reverse the Pane l's conclusion regarding the effects caused by the
aeronautics R&D subsidies if we were to accept that the Panel indeed made one or more of the above
findings, but not that it made all of them. Nor does the United States explain whether it considers that
we would have to reverse the Panel's ultimate conclu sion if we considered only some subset of these
findings to be inconsistent with that conclusion.
952. We note that the arguments of the United Stat es listed above at subpara graphs (a)-(e) appear
to relate primarily to the Panel's analysis of the operation of the aeronautics R&D subsidies, which
was the third of the four pillars considered by the Panel in its overall assessmen t of the nature of the
subsidies. The United States' arguments require us to make a determination as to whether, taken
individually or cumulatively, the United States' gr ounds of appeal invalidate the Panel's finding that
the aeronautics R&D subsidies "contributed in a genuine and substantial way to Boeing’s
development of technologies for the 787" and that a genuine and substantial causal link exists.
1955
953. One of the main points of contention between the participants lies in the proper
characterization of the United States' claims and, in particular, whether its arguments relate to the
Panel's application of the legal standard to the fact s of this dispute, or, rather, exclusively to the
Panel's appreciation of the facts. In this dispute, the relevant legal standa rd is the one provided for
under Articles 5(c) and 6.3 of the SCM Agreement, which require that the adverse effects be shown to
be the effects of, or caused by, the subsidies at issue. As we have explained above, the

1953United States' other appellant's submission, para. 257. Although the United States sets out its
arguments on appeal under six subheadings, it also appears to categorize them thematically under the five
headings listed at subparagraphs (a)-(e) above.
1954United States' other appellant's submission, para. 257.
1955Panel Report, para. 7.1773.
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Appellate Body has consistently articulated the causal link required under Article 6.3 as one involving
"a genuine and substantial relationship of cause and effect".
1956 The United States has clarified that, in
its arguments on appeal, it does not seek to challe nge the overall analytical legal framework adopted
by the Panel 1957; nor is it alleging that the Panel's errors "r ise to the level" of a failure to make an
objective assessment under Article 11 of the DSU 1958 (save for one claim that it specifically brings
under that provision). Rather, the United States has st yled its claims as relating to the Panel's failure
to establish properly a "genuine and substantial" causal link within the meaning of Articles 5(c)
and 6.3 of the SCM Agreement. The United States posits that, ha ving appropriately identified the
legal requirements of Articles 5(c) and 6.3, the Pa nel took a number of "impermissible short-cuts in
applying the law." 1959 According to the United States, the Pa nel's own findings regarding the nature
and magnitude of the aeronautics R&D subsidies show that any link between the NASA and USDOD
aeronautics R&D subsidies and Boeing's ability to launch a technologically innovative 787 "is so
attenuated" that it does not rise to the level of a genuine and substantial relationship of cause and
effect.1960
954. The European Union asserts that all of the argume nts of the United States in this part of its
appeal relate solely to the weighing of the evid ence and, therefore, should have been brought under
Article 11 of the DSU as challenges to the Pane l's objectivity in reviewing and appreciating the
evidence. For the European Union, many of th e United States' arguments on appeal have been
repeated from the Panel stage, and reflect no more than mere disagreement with the Panel's factual
findings.1961 The European Union highlights that simi lar kinds of arguments were raised in EC and
certain member States – Large Civil Aircraft, and that the Appellate Body in that dispute treated them
as arguments relating exclusively to factual findings.1962
955. We recall that the Appellate Body has recognized the difficulty of distinguishing "clearly
between issues that are purely legal or purely factual, or are mixed issues of law and fact", and has
stated that "{i}n most cases … an issue will either be one of application of the law to the facts or an
issue of the objective assessment of facts, and not both." 1963 The Appellate Body has found that

1956See supra, para. 913.
1957United States' other appellant's submission, para. 196. The United States here explains that the
Panel "correctly laid out the analytical framework, relied on the appropriate authorities to guide its analysis, and
set out the proper legal tests." (Ibid.)
1958United States' other appellant's submission, para. 221.
1960United States' other appellant's submission, para. 217.
1961European Union's appellee's submission, paras. 326 and 327.
1962European Union's appellee's submission, para. 329 (referring to Appellate Body Report, EC and
certain member States – Large Civil Aircraft, para. 1316).
 1963Appellate Body Report, EC and certain member States – Large Civil Aircraft , para. 872. (original
emphasis)
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allegations implicating a panel's assessment of th e facts and evidence fall under Article 11 of the
DSU.
1964 By contrast, "{t}he consistency or inconsiste ncy of a given fact or set of facts with the
requirements of a given treaty provision is … a legal characterization issue" and therefore a legal
question.1965 The Appellate Body has further stated that whether a panel properly interpreted a
provision of the WTO agreements and properly applied that interpretation to the facts of the case is a
legal question.1966
956. A party is free to frame its claim on appeal as it sees fit. 1967 However, important
consequences flow from that choice, including the st andard of review that will apply in adjudicating
that claim. When the Appellate Body considers th at a claim consists solely of a challenge to the
objectivity of the panel's assessmen t of the evidence, the Appellate Body has declined to consider
such allegations in circumstances where the partic ipant making them failed to raise an Article 11
claim in its Notice of Appeal or to substantiate such a claim in its submissions.1968
957. In this dispute, the Panel found that the "aeronautics R&D subsidies contributed in a genuine
and substantial way to Boeing's development of technologies for the 787". 1969 The Panel used similar
language to summarize the intermediate conclusions that it drew from its review of the four pillars
that it considered.1970 The language used by the Panel to describe how the aeronautics R&D subsidies

1964This includes claims that a pane l: exceeded its authority as a trie r of facts (Appellate Body Report,
US – Wheat Gluten, para. 151); disregarded evidence or did not have a sufficient evidentiary basis on the record
for its finding (Appellate Body Report, US – Continued Zeroing , para. 338); lacked even-handedness in the
treatment of evidence (Appellate Body Report, US – Upland Cotton (Article 21.5 – Brazil), para. 292); failed to
provide reasoned and adequate explanations for its findings (Appellate Body Report, US – Softwood Lumber VI
(Article 21.5 – Canada) , para. 97); or failed to provide coherent reasoning (Appellate Body Report, US –
1966Appellate Body Report, US – Upland Cotton, para. 399.
1967Appellate Body Report, EC and certain member States – Large Civil Aircraft , para. 872; Appellate
Body Report, Canada – Wheat Exports and Grain Imports, para. 177; Appellate Body Report, Japan – Apples,
para. 136.
1968Appellate Body Report, Mexico – Anti-Dumping Measures on Rice, para. 274.
1969Panel Report, para. 7.1773. (emphasis added)
1970For instance, the Panel found that:
 it was not very realistic to believe that the US Government "would have provided aeronautics R&D
subsidies of the magnitude recei ved by Boeing (and McDonnell Douglas) between 1989 and 2006
without those subsidies contributing in a genuine and substantial way to improving Boeing's
competitiveness";
 the aeronautics R&D subsidies "are designed to develop and validate new technologies for Boeing to
commercialize, and we consider that it would be ar tificial to treat their contribution as having been
exhausted or so diminished as to no longer be making a genuine and substantial contribution to
Boeing's development of technologies for the 787"; and
 the aeronautics R&D subsidies "contributed in a genuine and substantial way to Boeing's development
of technologies for the 787 and that, in the light of the conditions of competition in the LCA industry,
these subsidies conferred a competitive advantage on Boeing."
(Panel Report, paras. 7.1740, 7.1764, and 7.1773, respectively (emphasis added); see also paras. 7.1752,
7.1754, and 7.1758)
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contributed to the development of the 787—that is, in a "genuine and substantial" way—is
reminiscent of the legal standard articulated by the Appellate Body for determining the existence of
the requisite causal link between subsidies and the a dverse effects identified in Article 6.3(a)-(c) of
the SCM Agreement. Nonetheless, the Panel's repeated use of the phrase "genuine and substantial"
does not, alone, establish that the Panel was in each instance reaching a legal, rather than a factual,
conclusion.
958. The intermediate findings of a panel may be eith er legal or factual, or entail both factual and
legal elements. In reviewing a panel's findings, it is often difficult to disentangle legal conclusions or
legal reasoning from factual findings. Where there is ambiguity, it will fall on the Appellate Body to
determine whether a finding—and a related challenge to it on appeal—is properly characterized as
legal or factual, in the circumstances of a specifi c case. The United States brings its appeal on the
basis that the Panel erred in applying the legal standa rd to the facts, and we will proceed to evaluate
the United States' claims on that basis, save where we determine th at the Panel's finding, and the
United States' challenge to it, relate exclusivel y to the Panel's factual assessment. In such
circumstances, we will be unable to conduct our revi ew in the absence of a claim by the United States
under Article 11 of the DSU.
959. With these considerations in mind, we turn to the specific arguments of the United States on
appeal.
5. Specific Grounds of Appeal Raised by the United States
(a) Whether the Panel erred by "extrapolating findings" with respect to
three NASA composites programmes to all of the R&D programmes
960. The United States alleges that the Panel erred because it examined in detail only three NASA
programmes—the ACT, AST, and the R&T Base programmes—and then "e xtrapolat{ed} their
effects" to the remaining NASA and USDOD R&D programmes at issue. 1971 The United States
acknowledges that the ACT, AST, and R&T Base programmes, under which composites are
researched, are the "most commercially and technologically" important 1972, but contends that, by
extrapolating their effects to the remaining NASA and USDOD programmes, the Panel "exaggerated
the effect" of these remaining programmes, which, in the Panel's own estimation, were less relevant
and bore little relation to the technologies used on the 787.1973

1971United States' other appellant's submission, para. 222.
1972United States' other appellant's submission, para. 222 (referring to Panel Report, para. 7.1702).
1973United States' other appellant's submission, para. 222.
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961. The United States highlights in particular th e Panel's treatment of two NASA programmes
—the HSR and the AS programmes—which accordi ng to the United States were not on the "causal
pathway"
1974 to the development of the technologies used on the 787. With respect to the
HSR programme, the United States refers to the Panel's explanation that this programme was aimed at
developing high-speed supersonic civil transport and addressing environmental problems caused by
atmospheric effects and community noise. 1975 According to the United States, these technological
objectives were obviously different from those identified by the Panel (or by the
European Communities) as critical for the 787. 1976 Moreover, the United States refers to the Panel's
acknowledgement that the supersonic research unde r the HSR programme ended in failure since
Boeing eventually abandoned the idea of launching a supersonic civil aircraft. 1977 With respect to the
AS programme, the United States notes the Panel's finding that the objectives of that programme
included: "(i) foundational science and discipline-cen tric research; (ii) multidisciplinary, coupled
effects, and component-based research; (iii) sub- system or multidisciplinary integration; and
(iv) system level design." 1978 Moreover, argues the United States, the AS programme was aimed at
"saving lives" and not at the development of competitive technologies for Boeing's exclusive or
predominant use.1979 For the United States, the presence of su bsidized research that was unrelated to
the 787 technologies, within the larger category of aeronautics R&D subsidies analyzed by the Panel,
calls into question whether the research conduc ted under programmes that did relate to the
technologies used on the 787 was sufficient to cause the serious prejudice found by the Panel.1980
962. The European Union disagrees with the "extrapolation" arguments of the United States. In its
view, the Panel assessed the evidence before it a nd properly concluded that all of the research
programmes contributed, to different degrees, to the technologies used on the 787. 1981 T h e
European Union notes that, in addition to eviden ce relating to the three composites-related NASA
programmes, the Panel had before it concrete evid ence of "technology spin-offs" from the other five
(non-composites-related) NASA pr ogrammes that Boeing applied to the 787, and that such evidence
is reflected in Appendix VII.F.1 of the Panel Report.1982 In any event, the European Union argues that
the United States' focus on a 1:1 application to the 787 of the technologies studied under the R&D

1974United States' other appellant's submission, para. 226.
1975United States' other appellant's submission, para. 226 (referring to Panel Report, para. 7.1728).
Moreover, the United States observes that the HSR programme accounted for 40% of the $1.05 billion in NASA
contracts found to be subsidies. (Ibid.)
1976United States' other appellant's submission, para. 226.
1977United States' other appellant's submission, para. 226 (referring to Panel Report, para. 7.1730).
1979United States' other appellant's submission, para. 225.
1980United States' other appellant's submission, para. 228.
1981European Union's appellee's submission, para. 366 (referring to Panel Report, para. 7.1702).
1982European Union's appellee's submission, para. 363.
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programmes ignores the cumulative effect of the subsidies in allowing Boeing to identify an
optimized solution for the design of the 787 at the optimal time.
1983
963. We take as our starting point the Panel's own description of the way in which the research
conducted by Boeing pursuant to the NASA and USDOD programmes contributed to the technologies
used on the 787. The Panel embarked on its analys is by drawing attention to the assertion of the
European Communities that "the most important of the technical characteristics of the 787" that are
derived from the aeronautics R&D subsidies "are its composite fuselage, composite wing, and
composite manufacturing tools and processes". 1984 The Panel clarified that NASA's AST, ACT, and
R&T Base programmes, pursuant to which r esearch was conducted by Boeing and McDonnell
Douglas in the field of composites and composites technologies, were the "most commercially and
technologically significant programmes", and explai ned that, for this reason, it would "focus
primarily" on the research under these programmes.
1985 The participants were in agreement at the oral
hearing that the Panel did not err in selecti ng these three programmes as the most important
"commercially and technologically", because of the composites research conducted under them.
964. The importance ascribed by the Panel to com posites technologies—and the ACT, AST, and
R&T Base programmes under which such technologies were studied—is reflected in its analysis. The
Panel took note of the preponderance of composites structures used on the 787 1986, and explained how
NASA's research objectives relating to composit es evolved from 1989 through to the 2000s under the

1983European Union's appellee's submission, paras. 372 and 373.
1984Panel Report, para. 7.1702.
1985Panel Report, para. 7.1702.
1986The Panel noted, for example, that: the fuselage of the 787—composed of frames, stringers, and
skin—is constructed from composite materials using a variety of innovative technologies (Panel Report,
Appendix VII.F.1.C, p. 738, paras. 22 and 23); th e use of composites was innovative because, previously,
aircraft were constructed by bolting panels together, wh ich added weight and required seams and joints that
were expensive to maintain (p. 738, paras. 21 and 22); and there were contributions made by suppliers in
manufacturing composite wings for the 787 (p. 739, para. 25). In Appendix VII.F.1.B, pp. 729-733, paras. 3-10
and Appendix VII.F.1.C, pp. 738-739 of the Panel Report, the Panel described the development of the use of
composites on a number of predecessor Airbus and Boeing models, through to the 787 aircraft.
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successive ACT, AST, and R&T Base programmes.
1987 The Panel highlighted a specific example of
the research conducted by Boeing engineers pursuan t to a contract funded by the ACT programme—
the Advanced Composite Technology Fuselage Program ("ATCAS")—that led to the development of
the 360º single barrel composite fuselage, a hallmark feature of the 787.1988 The Panel also referred to
the substantial knowledge and experience gained by Boeing engineers working under the NASA
composites programmes, and delineated how their immersion in composites manufacture and design
over a number of years enabled them to "lev erage the substantial accumulated knowledge and
experience in any future composite-related R&D activity". 1989 That experience led to tangible
benefits—for example, the Panel noted that "the most important benefit that the ACT program
provided to Boeing was the ability for its engin eers to gain experience and work under real
development program restrictions with clear cost targets."1990
965. We recall that the United States' argument on a ppeal is that the Panel "extrapolated" the
findings made with respect to the three composit es-related programmes to the remaining five NASA
and two USDOD programmes considered by the Panel. The United States draws our attention to two

1987For instance, the Panel noted that NASA la unched the ACT programme as a "major new
programme" for composite wing and fuselage primary structures in 1988. (Panel Report, para. 7.1710)
It described how, between 1988 and 1995, the composites research proceeded in phases under the
ACT programme, which was succeeded by the AST and R&T Base programmes, which themselves ran from the
late 1990s through to the 2000s. (Ibid., paras. 7.1710-7.1727) The Panel explained how the composites research
conducted under these successive NASA programmes was geared towards the reduction of the weight of
transport as well as of the costs of producing aircraft composites, which would eventually lead to increased
aircraft performance and lower operating costs. For instance, in describing the objectives of the
AST programme, the Panel highlighted the following statement in a NASA AST Budget Estimate document:
While the current demonstrated level of composites technology can promise
improved aircraft performance and lo wer operating costs through reduced
structural weight, it does so with in creased manufacturing costs, currently
twice the cost of aluminium. The go als of the composites element are to
reduce the weight of civil transports by 30-50% and their cost by 20-25%
compared to today's metallic transports. This translates into a potential 16%
direct operating cost-savings to the airlines a nd increases the
competitiveness of the U.S. built transp orts. In cooperation with industry
and the {Federal Aviatio n Administration}, research is performed to
validate the technology for the application of new composites
manufacturing techniques, such as through-the-thickness stitching and resin
transfer moulding, tex tile preforms and advanced fiber placement, on
transport wings.
(Panel Report, para. 7.1716 (quoting NASA AST Budget Estimates, FY 1992-FY 2001 (Panel Exhibit EC-357),
at FY 1996, SAT 4-38))
1988Panel Report, para. 7.1751. The Panel agreed with the European Communities that the work
conducted by Boeing pursuant to the ATCAS, involving the preparation of a four quadrant, panelized fuselage
section, served as a "roadmap" for Boeing to arrive at the composite fuselage 360º barrel solution that it later
used on the 787. (Ibid.)
1989Panel Report, footnote 3684 to para. 7.1756 (referring to Statement by Patrick Gavin et al.
(8 November 2007) (Panel Exhibit EC-1175 (HSBI/BCI))), para. 27)
1990Panel Report, footnote 3684 to para. 7.1756 (quoting D. Wacht, "An Analysis of Selected NASA
Research Programs and Their Impact on Boeing's Civil Aircraft Progra ms" (November 2006) (Panel Exhibit
EC-15 (BCI)), p. 67).
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NASA programmes in particular—the HSR and AS programmes—and asserts that the Panel's
findings with respect to these programmes disclose little or no relation to the technologies that the
Panel found (and the European Communities had ar gued) were responsible for making the 787 the
success that it was in 2004.
966. We recall that the Panel discussed the technical objectives of the HSR and AS programmes as
part of its consideration of the structure and design of the subsidies, under the second pillar of its
analysis. With respect to the HSR programme, the Panel noted that research was geared towards the
development of a high-speed supersonic civil transp ort. Under Phase I, the objective was to define
the "environmental compatibility requirements in the areas of atmospheric effects and community
noise and sonic boom" and to establish "technology foundation to meet these requirements".
1991
Under Phase II, the programme would address "essen tial technologies needed by the U.S. aeronautics
industry in order to make informed decisions rega rding future {high-speed supersonic civil transport}
development and production." 1992 With respect to the AS programme, the Panel noted that research
under that programme would contribute to a reduction in aviation and accident fatality rates and
would encompass research in "foundational science and discipline-centric research; multidisciplinary,
coupled effects, and component-based research; s ub-system or multidisciplinary integration; and
system level design".
1993
967. It is clear from the above descriptions of the technical objectives of the HSR programme and
the AS programme that the Panel did not explicitly link any of the six technologies used on the 787 to
the research conducted under the two programmes. 1994 However, this alone does not validate the
United States' argument that, by failing to do so, the Panel thereby improperly "extrapolated" findings
with respect to the ACT, AST, and R&T Base progra mmes. This is because the Panel's finding of a
causal pathway was not predicated upon the exis tence of a direct relationship between the
technologies seen on the 787 and the research c onducted under the NASA and USDOD programmes.
Rather, as the Panel explained, the technologies used on the 787 must be understood as the product of
an incremental process of research that progressed in gradual stages. The Panel further explained that
the "technology concepts studied under the NASA R&D subsidies and the technologies applied to

1991Panel Report, para. 7.1728 (quoting NASA HSR Budget Estimates, FY 1991-FY 2001 (Panel
Exhibit EC-343), at FY 1994, RD 9-31).
1992Panel Report, para. 7.1729 (referring to NASA HSR Budget Estimates, FY 1991-FY 2001 (Panel
Exhibit EC-343), at FY 1994, RD 9-33).
1993Panel Report, para. 7.1737 (referring to NASA Aviation Safety Budget Estimates, FY 2000-FY
2007 (Panel Exhibit EC-382), at FY 2007, SAE ARMD 2-7).
1994We recall that the European Communities had identified a total of six technologies that were used
on the 787. Apart from the composites technologies, th ese included technologies related to "more-electric"
architecture; open systems architecture; enhanced aerodynamics and structural design; noise reduction; and
health management systems.
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the 787 are essentially part of the same process in which solutions to technological problems are
developed (through a collective exercise of progres sive learning through trial and error involving
largely the same teams of people over an extended period of time)".
1995 Moreover, the Panel
highlighted that "technologies that may, at any given moment, be portrayed as discrete and unrelated,
are in fact more appropriately regarded as bei ng part of a single process of iterative learning and
advancement in pursuit of a common technological goal." 1996 For the Panel, therefore, "even
unsuccessful research generates important knowledge a nd experience that is applied to subsequent
technology developments."1997
968. The Panel therefore perceived the causal li nk as encompassing not only research conducted
pursuant to the NASA and USDOD programmes that can be traced directly to the 787 technologies,
but also research that was less directly related, and ev en resulted in failure. Framed at such a level of
generality, this causal connection might be taken to mean that any programme, irrespective of how
closely the research conducted pursuant to it might be to the eventual 787 technologies, would be
included. However, the Panel illustrated, throu gh a number of specific examples, how the research
conducted under the programmes at issue contributed to the eventual 787 technologies. As we have
noted above, the Panel highlighted how Boeing' s work under the ATCAS contract led to the
development of the 360º single barrel composite fuselage. 1998 With respect to the "more-electric
systems" technology, the Panel explained that, although the technologies developed pursuant to the
AST-funded "Power-by-Wire" contract between NASA and McDonnell Douglas 1999 were developed
on different aircraft and using different criteria, th e objective of the contract was the development and
demonstration of a "more-electric secondary power system" that would provide enough confidence
through testing that industry could transfer the technology to their civil fleet.2000

1995Panel Report, para. 7.1750.
1996Panel Report, para. 7.1750. (emphasis added)
1997Panel Report, para. 7.1748.
1999Panel Report, para. 7.1752 (referring to Europ ean Communities' first written submission to the
Panel, Annex C, para. 71, in turn referring to NASA Contract NAS3-27018 with McDonnell Douglas Aerospace
regarding Power-By-Wire Development and Demonstration for Subsonic Civil Transport, 29 September 1993
(Panel Exhibit EC-826), at C-5).
2000See Panel Report, para. 7.1752. For this reason, the Panel considered it "artificial to suggest that the
research into more-electric systems architecture that Boeing and McDonnell Douglas conducted under the
aeronautics R&D programmes did not contribute in a genuine and substantial way to Boeing's development of
more-electric systems for the 787 beca use, for example, the flight cont rols for the 787 are not the same
electronic actuation technology studied by McDonnell Douglas under the {Power-By-Wire} contract." (Ibid.)
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969. Turning to the specific examples of the HSR and AS programmes, we note first that the
European Communities explained before the Pane l how they each contributed to the eventual
development of key technologies used on the 787.
2001 Second, as regards the HSR programme, the
United States highlights on appeal that this progra mme resulted in failure and had to be abandoned.
However, as the Panel itself explained, programmes that do not lead to successful technologies are not
necessarily outside the causal pathway because "even unsuccessful research generates important
knowledge and experience that is applied to subsequent technology developments." 2002 In any event,
we can identify one way in which the faile d HSR programme, which focused on supersonic
technologies, contributed to advancing the research into the 787 technologies. The Panel noted that,
prior to 2000, Boeing was working on a high-speed aircraft—the Sonic Cruiser. 2003 However, that
project gained little support from airlines because cust omers were more interested in aircraft with
lower operating costs than in aircraft flying at s upersonic speed. In line with this feedback, Boeing
decided to build a more efficient airplane that w as capable of flying at the same speed as existing
aircraft but at a lower cost. 2004 It appears, therefore, that th e research into the high-speed Sonic
Cruiser, even if it ultimately resulted in failure, helped Boeing to eliminate those technologies that
were not commercially attractive, and to concentrat e Boeing's engineers' efforts instead on research
into technologies—in particular, composites—that were of more interest to customers and were
actually used on the 787.
970. In the light of the above, we do not agree with the United States that the Panel improperly
"extrapolated" the effects of the three composites programmes to the other NASA and USDOD
programmes. The causal link found to exist between all of the R&D programmes at issue and the 787
technologies did not rest on extrapolation. Reasoning from "extrapolation" would imply an
assumption that, because certain programmes gave ri se to technologies that are used on the aircraft,
other programmes automatically do the same. That was not the Panel's reasoning. Rather, it was the
Panel's view that all of the programmes, to differing degrees, contributed to the process of

2001For instance, as regards the HSR programme, the European Communities argued that this
programme helped Boeing develop and enhance CFD (computer design software) codes, which allowed the
company to improve the aerodynamics and structural design of its LCA in less time and at lower cost than
would otherwise have been possible, particularly as they reduce the need for extensive and expensive wind
tunnel tests. (See Panel Report, Appendix VII.F.1.D, p. 749, paras. 55-60) The European Communities argued
that Boeing conducted research on health management technologies under th e AS programme. (See ibid.,
p. 755, para. 75)
2002Panel Report, para. 7.1748.
2003Panel Report, para. 7.1746. In its arguments before the Panel, the United States itself noted that
Boeing had initially sought to meet the demand for the new fragmented market it had foreseen with a fast,
extended-range aircraft because it would not only be faster and lighter, due to the use of composites, but it
would also travel just under the speed of sound. (United States' first written submission to the Panel, paras. 921
and 922)
2004United States' first written submission to the Panel, paras. 921 and 922.
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technological development that eventually led to the commercialization of the 787 technologies. The
Panel was clearly of the view that the three composites programmes that contributed to the
development of the composites technologies were on the "causal pathway" to Boeing's offering of
the 787. However, this did not exhaust the Panel' s understanding of the relevant causal link. That
causal connection encompassed even research conduc ted pursuant to programmes that resulted in
failure, or were not directly related to the 787 t echnologies. Far from attenuating or diluting any link
that might exist between the three composites progr ammes and the 787, the Panel's assessment of the
role of the remaining R&D progra mmes buttresses its overall finding that all of the aeronautics R&D
subsidies contributed, albeit to differing degrees, to the development of the technologies used on
the 787.
971. Accordingly, we reject the United States' argument on appeal that, in its analysis of the three
composites programmes, the Panel "extrapolated" findings to the remaining NASA and USDOD
programmes at issue, and that the Panel's assessm ent thereby attenuates the genuine and substantial
link found by the Panel to exist between the aerona utics R&D subsidies and Boeing's development of
the technologies used on the 787.
(b) Whether the Panel erred by not finding that the NASA research was
too far removed from the commercial technologies used on the 787
972. In its second argument on appeal, the United States alleges that, by misreading a table in the
Peisen Study
2005, the Panel miscalculated the amount of time by which the NASA research accelerated
the development of the technologies used on the 787 and thereby understate d the time and resources
that Boeing itself was required to invest to br ing the NASA research to commercial viability.
Therefore, posits the United States, even if th e research conducted by NASA were on the "causal
pathway" towards a technology ready for operatio nal use on the 787, the Panel underestimated how
far removed that research was from the technol ogies actually used on the 787, and therefore
misjudged the amount of additional private sector development time required to develop them. 2006
This, argues the United States, further attenuates the genuine and substantial causal link found by the
Panel.
973. The European Union counters that the arguments of the United States relate to a factual error
by the Panel and, in the absence of a claim under Article 11 of the DSU, are outside the scope of
appellate review. In any event, contends the Euro pean Union, even if the United States' arguments

2005We provide further details of the Peisen Study infra, para. 974.
2006See United States' other appellant's submission, paras. 229-235.
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were to be accepted on appeal, they do not i nvalidate the Panel's finding of a causal link
2007 because,
even if the Panel's reading of the table in the Pe isen Study were erroneous, and were revised, this
correction would not affect the Pa nel's ultimate legal conclusions. 2008 The European Union argues
that even the revised numbers show that: the NASA-funded research gave Boeing a significant timing
advantage of several years in developing the 787 technologies; the NASA research reduced the risk
faced by Boeing; and the Peisen Study provides average timeframes for a broad range of "airframe"
technologies that are not the specific technologies used on the 787, which might in any event require a
longer time to develop.
2009
974. We note first that the Panel referred to the Pe isen Study in support of its finding that NASA
research reduces the risk that the private sector would otherwise have to bear in financing early and
potentially unsuccessful research.
2010 That study explains NASA's system of categorizing research
according to its level of maturity or TRL (technological readiness level), ranging from the highest risk
and lowest maturity technology at TRL 1 ("b asic scientific/engineering principles observed and
reported") to the lowest risk and highest maturity technology at TRL 9 ("operational use of actual
system tested, and benefits proven"). 2011 According to the Peisen St udy, "NASA typically works on
technologies from a TRL of 1 to a TRL of 6" and, at TRL 6, "industry often takes the technology and
develops it to the state of operational readiness, TRL 9". 2012 The Peisen Study, which examined 18
civil aeronautics products, notes that there is cons iderable variability in the time it takes for
technologies to mature, with average maturation times varying by technology type, by the
technology's primary benefit or goal, and, to a les ser extent, by the need for additional technologies or
NASA testing for the successful maturation of the technology.2013
975. Based on evidence in the Peisen Study indi cating the average time taken by NASA to
progress from TRL 1 to TRL 6, th e Panel concluded that NASA's development of "higher risk
technologies up to TRL 6 results in an acceleration of the overall technology development process for
an airframe manufacturer like Boeing and would ther efore facilitate an earlie r product launch than
would otherwise have been possible". 2014 The Panel based this consideration on its assessment that
the average time to progress from TRL 1 to TRL 6 is 11.3 years. The Panel derived this estimate

2007European Union's appellee's submission, para. 379.
2008European Union's appellee's submission, para. 383 (referring to Appellate Body Report, EC and
certain member States – Large Civil Aircraft, para. 1335).
2009European Union's appellee's submission, paras. 385-387.
2010Panel Report, paras. 7.1747 and 7.1748.
2011Peisen Study, Table 1.2-1, p. 2.
 2012Peisen Study, p. 1. A TRL of 6 typically mean s that the prototype of the system concept is
demonstrated in a relevant environment. (Ibid., Table 1.2-1, p. 2)
2013Panel Report, footnote 3668 to para. 7.1748.
2014Panel Report, para. 7.1748.
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from its reading of a table in the Peisen Study relating to the average time taken by airframe
technologies to progress to TRL 9 from TRL 1, which included the following data:
Table 4. Sample statistics of twelve NASA technologies from TRL 1 to TRL 9,
by type of aeronautics technology-airframe
Years to TRL 9
from TRL:
Airframe Technologies (2)
Average St Dev
1 16.5 4.2
2 15.5 3.5
3 14.8 3.2
4 14.0 2.8
5 12.0 4.2
6 11.3 3.9
7 10.0 4.2
8 2.5 2.1
9 0 0
Source: Peisen Study, p. 11, Table 3.3-1.

976. As the heading on the left-most column indi cates, each row sets out the average number of
years (and the relative standard deviation) that a technology takes to mature from the TRL indicated in
the left column to TRL 9. Accordingly, row 6 reports the number of years from TRL 6 to TRL 9, and
shows the average as being 11.3 years. Having reviewed the table, however, the Panel stated that "the
average time from TRL 1 to TRL 6 was 11.3 years …, while the average time from TRL 1 to TRL 9
was 16.5 years".2015 Therefore, according to the Panel' s calculation, the time necessary for an
airframe technology to mature from TRL 6 to TRL 9 is only 5.2 years.
977. The United States asserts that the Panel misunders tood the first column of the table and, as a
result, wrongly read it to state that it takes 11.3 years from TRL 1 to TRL 6. Read properly, the table
shows that it takes 5.2 years from TRL 1 to TRL 6, and 11.3 years from TRL 6 to TRL 9.
2016 The
European Union does not defend the 11.3-year period refe rred to by the Panel. Both participants thus
appear to accept, and it seems inc ontrovertible to us, that the Panel misread the table in the Peisen
Study.
978. The United States contends that the consequen ce of the Panel's error in overestimating the
duration of the NASA-funded high-risk/low-matur ity research—and therefore underestimating the
time and resources invested by Boeing and its suppliers in the later stages of the research process—is
that the Panel's ultimate finding that a causal link exists is weakened.

2015Panel Report, para. 7.1748. (emphasis added)
 2016United States' other appellant's submission, para. 233.
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979. In addressing the United States' claim, we can distinguish two steps taken by the Panel in its
consideration of the table in the Peisen Study. Firs t, the Panel's appreciation of the contents of that
table; and second, its application of the legal causa tion standard to the evidence. The first step is
factual since it concerns the Panel's treatment of factual evidence; the second step, however, is legal
since it involves the characterization of the fact s according to the legal standard. Although a
misreading of the evidence under the first step mi ght have had consequences for the Panel's ultimate
legal conclusion under the second step, it is an error in the appreciation of the facts, and not an error
in the application of the legal standard. Conseque ntly, in the absence of a claim under Article 11 of
the DSU, we are unable to consider further this ground of the United States' appeal.
980. Even if we were able to correct the Panel's err oneous reading of the table in the Peisen Study,
the United States has not explained why or how th e Panel's numerical error necessarily vitiates its
finding that the aeronautics R&D subsidies facilita ted an earlier launch of the 787 than would have
otherwise been possible. In this regard, we note first that, having (erroneously) stated that the average
amount of time to progress from TRL 1 to TRL 6 was 11.3 years, the Panel tempered the import of
this finding by stating that it did not thereby "mean to suggest that it would have taken Boeing as
much as 11 years longer to develop the 787 in the absence of the aeronautics R&D subsidies".
2017
Such a caveat was, in our view, reasonable given th at the estimates in the Peisen Study were based
only on average timeframes, and do not necessarily reflect the precise time that was required to
develop and launch the technologies used on the 7 87. The Panel's finding must be understood to
mean that the NASA aeronautics R&D subsidies accelerated the t echnology development process by
some amount of time, and, therefore gave Boeing an advantage in bringing its technologies to market.
The exact amount of time was not critical: that the NASA research enabled Boeing to accelerate the
research process was. Second, the Panel found elsew here that the aeronautics R&D subsidies reduced
the large disincentives for the private sector to invest in early stage aeronautics R&D. 2018 F o r t h e
Panel, because of the importance of the aerona utics R&D subsidies in overcoming these significant
disincentives, it was "not reasonable" to believe that, absent the aeronautics R&D subsidies, Boeing
could have achieved the gains that it did "within the time-frame" that it did. 2019 In the Panel's view,
therefore, without the aeronautics R&D subsidies, Boeing would not have been willing to invest as
much, and as soon, in early stage R&D, and it would have taken Boeing longer to bring the 787
technologies to commercial readiness without the aeronautics R&D subsidies.

2017Panel Report, para. 7.1748.
2018Panel Report, para. 7.1747. The Panel found that there were large disincen tives for private sector
investment in long-term, high-risk R&D due to the inability of individual companies to capture fully the benefits
of research efforts, the length of the aircraft research and development cycle and investment recoupment cycle,
and the extensive breadth and depth of technologies to produce superior aircraft. ( Ibid., para. 7.1747) This
finding has not been appealed by the United States.
2019Panel Report, para. 7.1759.
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981. For the above reasons, we reject the argument of the United States that the Panel's misreading
of the table in the Peisen Study attenuates its fi nding that the aeronautics R&D subsidies contributed
in a genuine and substantial way to the development of the 787.
(c) Whether the Panel erred in its appr eciation of the role of Boeing and
its suppliers in the development of the technologies used on the 787
982. The United States also challenges the Panel's ass essment of the role played by Boeing and its
suppliers in the commercial and technological su ccess of the 787. The United States highlights that
the Panel itself acknowledged that Boeing co nducted a substantial amount of research on its own to
develop and launch the 787, including at the early stages of the research effort.
2020 According to the
United States, the NASA-funded research was, "by any measure" 2021, small in comparison, and the
additional research and independent technological developments by Boeing attenuate any link
between the aeronautics R&D subsidies and the technologies used on the 787. 2022 Further, the
United States argues that the Panel failed to take proper account of the knowledge and experience that
Boeing acquired from non-NASA sources, including thr ough its work with its suppliers. It was
through this collaboration that Boeing gained the skills to integrate technologies on LCA, and not, as
the Panel found, because of the aeronautics R&D subsidies. 2023 The United States argues, in parallel,
that, by finding that Boeing gained "integrati on skills" through NASA research, the Panel acted
inconsistently with its obliga tions under Article 11 of the DSU. 2024 The United States contends that,
although the Panel accepted that many of the t echnologies used on the 787 were commercially
available or otherwise sourced from Boeing's suppliers 2025, it underestimated their contribution to
Boeing's knowledge base and to the technologies used on the 787.2026
983. The European Union repeats its argument that all of these claims of the United States should
have been brought under Article 11 of the DSU. W ith respect to the specific claim brought by the
United States under Article 11 of the DSU, the Eur opean Union recalls the Panel's finding that the
aeronautics R&D subsidies enabled Boeing to meet the challenges of integrating technologies from a
wide variety of suppliers. 2027 The European Union submits that th e United States' argument "fails to

2020United States' other appellant's submission, para. 236 (referring to Panel Report, para. 7.1746).
2021United States' other appellant's submission, para. 237.
2022United States' other appellant's submission, para. 236.
2023United States' other appellant's submission, paras. 238 and 240 (referring to Panel Report,
para. 7.1757).
2024United States' other appellant's submission, paras. 238 and 239.
2025United States' other appellant's submission, para. 238 (referring to Panel Report, para. 7.1757).
2026United States' other appellant's submission, para. 238.
2027European Union's appellee's submission, para. 396 (referring to United States' other appellant's
submission, paras. 214 and 238-249).
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recognise that several … contracts were precisel y focused on making Boeing a better integrator"
2028
and refers to the Panel's finding that the United States' argument "overlooks the importance of the
knowledge and experience that Boeing obtained pursuant to the aeronautics R&D subsidies". 2029 The
European Union asserts that, simply because the Pane l accorded the evidence a different weight than
the United States does not mean that the Panel failed to conduct an objective assessment under
Article 11 of the DSU.2030
984. We begin with the United States' argument th at the Panel erred in its application of
Articles 5(c) and 6.3 in failing to take proper account of the contribution of Boeing and its suppliers
vis-à-vis the role of the aeronautics R&D subsidies in the timely development of the 787 technologies,
and that this alleged failure vitiates the Panel's determination that a genui ne and substantial causal
relationship existed between the aeronautics R&D subsidies and the 2004 launch of the
technologically advanced 787. As we have noted above 2031, a panel that is tasked with determining
whether the causal link in question meets the requisite standard of a "genuine and substantial" causal
relationship will often be confronted with multiple factors that may have contributed, to varying
degrees, to that effect. As part of its assessment of the causal nexus between the subsidy at issue and
the effect(s) that it is alleged to have had, a pa nel must seek to understand the interactions between
that subsidy and the various other causal factors, a nd make an assessment of their connections to, as
well as the relative importance of the subsidy, and of the other factors, in bringing about, the relevant
effect(s). In order to find that the subsidy is a genuine and substantial cause, a panel need not
determine it to be the sole cause of that effect, or even that it is the only substantial cause of that
effect. A panel must, however, take care to ensure that it does not attribute the effects of those other
causal factors to the subsidy at issue, and that th e other causal factors do not dilute the causal link
between that subsidy and the alleged adverse effects such that it is not possi ble to characterize that
link as a genuine and substantial relationship of cause and effect. We have also noted that a
demonstration that subsidies are a genuine and subs tantial cause of the alleged serious prejudice is a
fact-intensive and case-specific exercise.
985. We consider first the Panel's discussion of the contribution made by Boeing to the overall
development of the technologies used on the 787. The Panel noted that NASA research
complemented and was conducted in collaboration with Boeing's own internally funded research

2028European Union's appellee's submission, para. 397.
2029European Union's appellee's submission, para. 398 (referring to Panel Report, para. 7.1772). The
European Union highlights, in this respect, the Panel's finding that "{t}he critical question in developing and
building LCA is not how to get the different technologies and design and manufacturing tools. The critical
question is how to use them." (Ibid., para. 399 (quoting Panel Report, para. 7.1772 (original emphasis)))
2030European Union's appellee's submission, para. 400.
2031Supra, paras. 913 and 914.
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efforts
2032, illustrating by way of example that, while Boeing conducted research on one fuselage
segment under the NASA-funded ATCAS, it used internal funds to conduct research on other fuselage
segments, material and process standards, and structural allowables. 2033 The Panel further stated that,
from 2000 onwards, Boeing—together with its supp liers—had made "significant investments in
R&D" in the "respective technology areas", first with respect to the Sonic Cruiser and then with
respect to the 787, and had developed expertise in the application of composites in secondary
structures, as well as in primary structures such as the 777 empennage. 2034 The Panel also took into
account Boeing's own financial resources and registered that, between 1986 and 2006, Boeing
repurchased $16 billion worth of its own stock.2035
986. The above statements by the Panel illustrate that it appreciated the extent of Boeing's
contribution to the research into the technologies for the 787, and was aware of its ability to finance
such research. However, the Panel demonstrat ed through its reasoning why those substantial
contributions on Boeing's part were not inconsistent with the genuin e and substantial link that it had
found to exist between the aeronautics R&D subsidies and the timely development of the 787
technologies. What was crucial to that link was not merely the fact that Boeing also conducted
research, and that it used its own resources to do so, but, rather, it was "the length of time over which
{the aeronautics R&D subsidies} operated, the colla boration with Boeing and complementarity with
Boeing's own internal R&D efforts and the nature of the technological problems that were the focus of
the research".
2036 In the course of its analysis, the Panel highlighted the joint efforts between Boeing
and NASA in conducting research. It noted that "Boeing gain{ed} a significant advantage from
performing the R&D work itself , in collaboration with NASA, as well as from conducting research
under the R&D subsidies in tandem with its own related R&D efforts ."2037 Moreover, the Panel noted
that the effects of the subsid ies were measured by the " cumulative effect of Boeing's decades-long
participation" in NASA and USDOD pr ogrammes, taking into account "the complementarity and
interdependence between the work that Boeing and Mc Donnell Douglas performed for NASA and
Boeing's own internal R&D efforts." 2038 The Panel also underscored the boost that the NASA
subsidies provided to the development of technologi es at the earliest, most fundamental, stages of
research. For the Panel, to focus too narrowly on Boeing's experience and its significant internal
R&D efforts alone would "sever artificially the contribution of earlier significant research efforts

2032Panel Report, para. 7.1746.
2033Panel Report, para. 7.1746.
2034Panel Report, para. 7.1757.
2035Panel Report, para. 7.1760.
2036Panel Report, para. 7.1754.
2037Panel Report, para. 7.1771. (emphasis added)
2038Panel Report, para. 7.1756. (emphasis added)
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which are … an inherent part of the technology development process."
2039 As we have explained
above, NASA's role, especially in those early stages, lay precisely in the fact that it shouldered the
initial burden for the private sector when technology was at its lowest stage of maturity and where risk
was highest. It was the aeronautics R&D subsidies that enabled Boeing to overcome the disincentives
in investing in aeronautics R&D, and which theref ore accelerated Boeing's launch of the 787 with all
of its technological advancements in 2004.
987. While recognizing NASA's contribution, particularly at the early stages, the Panel also
appreciated that, at "some point in time", the co ntribution of that research could reasonably be
expected to diminish in relation to other, "more recent or revolutionary technological
developments"2040 attributable to other factors. At that stage, it would not be possible to characterize
the research conducted by NASA in the 1990s as having contributed in a "genuine and substantial"
way to new technologies applied to future Boeing LCA. 2041 However, the Panel found that this point
had not been reached in 2004, when the 787 entered the market. 2042 While we could conceive of
different ways in which an advantage provided by subsidies might dissipate over time or might be
severed, through, for instance, the intervention of other, more important causal factors, the
United States does not indicate or explain why the mere fact that Boeing contributed at various stages,
including at early stages, to the research effort means that the important role played by the aeronautics
R&D subsidies is attenuated. Indeed, consistent with our previously stated views regarding a genuine
and substantial link 2043, the fact that Boeing's contribution of resources, time, and financing might be
substantial does not mean that the timing advantage pr ovided by the subsidies, as well as their role in
allowing Boeing to overcome risks and disincentives, is diminished.
988. The United States also argues that the Panel un derestimated the role played by Boeing's
suppliers in developing the 787 technologies. As was the case with Boeing, the Panel recognized that
these suppliers made "significant investments" in R&D 2044 and noted further that, during the 1990s,
suppliers such as Kawasaki Heavy Industries and Fu ji Heavy Industries were developing expertise in
the use of composites in primary aircraft struct ures contemporaneously with Boeing's development
efforts.2045 The above statements illustrate that the Pa nel did take into account the contribution made
by suppliers, but that it nonetheless concluded that such contribution did not attenuate the genuine and

2039Panel Report, para. 7.1756. (emphasis added)
2040Panel Report, para. 7.1758.
2041Panel Report, para. 7.1758.
2042Panel Report, para. 7.1758.
2043Supra, para. 984.
2044Panel Report, para. 7.1757.
2045Panel Report, para. 7.1757.
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substantial link that it had found to exist between the aeronautics R&D subsidies and Boeing's launch
of the 787 in 2004.
989. The United States does not contest that the aerona utics R&D subsidies were important at the
early stages of the research effort. We also note that, in its arguments, the United States fails to
explain how the contribution of Boeing and its supp liers attenuates that role. In the light of the
Panel's view of the important role played by the aer onautics R&D subsidies, in particular at the early
stages of the research effort, we reject the United St ates' argument on appeal that the Panel failed to
appreciate the efforts of Boeing and its suppliers, and therefore erred in applying the legal standard of
causation to the facts of this dispute.
990. In addition to its claims that the Panel erred in its application of Articles 5(c) and 6.3(b)
and (c) of the SCM Agreement, the United States also asserts that the Panel violated Article 11 of the
DSU. Specifically, the United States contends th at there was no evidentiary basis for the Panel's
statement in paragraph 7.1772 of its Report th at "Boeing's ability to use other companies'
commercially available technologies on the 787 w as due to 'the knowledge and experience that
Boeing obtained pursuant to th e aeronautics R&D subsidies as an integrator of the various
technologies'".
2046 In fact, argues the United States, there is evidence on the Panel record suggesting
the contrary, namely, that Boeing had developed experience in the application of composites in
primary and secondary structures since the 1960s.2047 This work involved integrating the technologies
of multiple suppliers, independent of NASA and USDOD research programmes. 2048 T h e
United States also alleges that the integration of a variety of supplier technologies on a commercial
programme differs greatly, in both scale 2049 and quality 2050, from the work executed pursuant to the
aeronautics R&D programmes at issue. The United States therefore requests the Appellate Body to

2047United States' other appellant's submission, para. 241 (referring to Panel Report, Appendix VII.F.1,
p. 731, para. 7)
2048United States' other appellant's submission, para. 241.
2049To illustrate the differences in scale, the Un ited States argues that even the largest NASA
programme, the HSR programme, amount ed only to $440 million (which, in fact, was only $307 million given
that NASA cut short this programme), with $26 million for the main ATCAS programme and $74.4 million for
the AST programme contract on composite wing structures. These figures represent a minor portion of what it
costs an LCA producer to develop new aircraft. (United States' other appellant's submission, para. 242)
2050With respect to the quality of work, the United States asserts that the nature of the "integration" of a
NASA project differs from the "integration" that Boeing performed in producing LCA for three reasons. First,
regarding the maturity of the technology, NASA-funded aeronautics R&D projects do not advance beyond the
laboratory and do not deal with real-world problems of applying these technologies. Second, with respect to the
complexity of the system, most of NASA research does not involve making usable physical parts and
components and, where necessary, it was at most a component to a wing box, fuselage section, or wing. Third,
as regards the scale of production, even in those rare cases when NASA projects called for making a physical
component, it was at most one or two over a period of months or years for laboratory test purposes.
(United States' other appellant's submission, paras. 243 and 244)
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reverse the relevant part of paragraph 7.1772 of the Panel Report, which it characterizes as a finding
that the aeronautics R&D programmes were "par tially responsible for Boeing's integration
capabilities".
2051
991. The European Union responds that many of the aeronautics R&D cont racts were precisely
focused on making Boeing a better integrator and that , given the substantial evidence before it, the
Panel acted within the bounds of its discretion in re jecting the United States' argument that "many of
the technologies applied to the 787 are commerc ially available to Airbus from third party
suppliers".2052 The European Union emphasizes that pa nels are not required to ascribe the same
weight to evidence as the parties do, and expresses th e view that the United States' appeal amounts to
no more than mere disagreement with the weight the Panel accorded to the evidence.2053
992. We commence by recalling that Article 11 of the DSU requires a panel to "consider all the
evidence presented to it, assess its credibility, determine its weight, and ensure that its factual findings
have a proper basis in that evidence" 2054, and that "panels {may not} make affirmative findings that
lack a basis in the evidence contained in the panel record". 2055 Within these parameters, "it is
generally within the discretion of the Panel to d ecide which evidence it chooses to utilize in making
findings".2056 In this regard, the Appellate Body has stat ed that it will not "interfere lightly" with a
panel's fact-finding authority 2057 but, rather, for a claim under Article 11 to succeed, "the Appellate
Body must be satisfied that the panel has ex ceeded its authority as the trier of facts". 2058 I n o t h e r
words, "not every error allegedly committed by a panel amounts to a violation of Article 11 of the
DSU"2059, but only those that are so material that, "t aken together or singly", they undermine the

2051United States' other appellant's submission, para. 249.
2052European Union's appellee's submission, paras. 397-399.
2053European Union's appellee's submission, para. 400 (referring to Appellate Body Report, Australia –
Salmon, para. 267).
2054Appellate Body Report, Brazil – Retreaded Tyres , para. 185 (referring to Appellate Body Report,
EC – Hormones , paras. 132 and 133). See also Appellate Body Reports in Australia – Salmon , para. 266;
EC – Asbestos, para. 161; EC – Bed Linen (Article 21.5 – India) , paras. 170, 177, and 181; EC – Sardines,
paras. 141 and 142; Korea – Alcoholic Beverages, paras. 161 and 162; Korea – Dairy, para. 138; US – Carbon
2055Appellate Body Report, US – Carbon Steel, para. 142.
2056Appellate Body Report, EC – Hormones , para. 135. The Appellate Body has also stated that:
a panel has to base its findings on a sufficient evidentiary basis on the record (Appellate Body Report, EC –
Fasteners (China), para. 441); may not apply a double standard of proof (Appellate Body Report, US – Upland
Cotton (Article 21.5 – Brazil) , para. 293); and its treatment of the evidence must not "lack even-handedness"
(Appellate Body Report, US – Upland Cotton (Article 21.5 – Brazil), para. 292).
2057Appellate Body Report, EC – Sardines , para. 299; Appellate Body Report, US – Carbon Steel ,
2058Appellate Body Report, US – Wheat Gluten, para. 151.
2059Appellate Body Report, EC – Fasteners (China), para. 442.
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objectivity of the panel's assessment of the matter before it.
2060 Accordingly, it is insufficient for an
appellant simply to disagree with a statement or to assert that it is not supported by evidence.
993. As we see it, in para graph 7.1772 of its Report, the Panel accepted the
European Communities' submission that the aer onautics R&D subsidies provided Boeing with
knowledge and experience as an integrator of the various technologies. That submission was made
in, and the Panel quoted from, the European Commun ities' confidential oral statement at the first
substantive meeting of the Panel. The relevant paragraph of that oral statement, which the Panel
quoted in its entirety, does not refer to any supporting evidence.2061
994. The statement in paragraph 7.1772 challenged by the United States forms part of the Panel's
analysis of the conditions of competition in the LCA industry, which was the fourth pillar in its
assessment of the effect of the aeronautics R&D subsidies on Boeing. In that part of its Report, the
Panel weighed various pieces of evidence before fi nding that "the conditions of competition in the
LCA industry are such that a subsidy that e nhances an LCA manufacturer's ability to develop
innovative technologies for application to its airc raft will potentially give rise to a significant
competitive advantage to that manufacturer". 2062 The Panel addressed, in paragraphs 7.1770
and 7.1771 of its Report, two arguments by the Unit ed States that sought to rebut the proposition that
the aeronautics R&D subsidies conferred a competitive advantage on Boeing relative to Airbus. First,
the Panel rejected the argument that the results of NASA-funded research are equally available to
Airbus because they are "publicly disseminated". The Panel recalled its earlier finding that there are
"restrictions on the dissemination of certain aspect s of NASA-funded research results, and that public

2060Appellate Body Report, EC – Fasteners (China) , para. 499; Appellate Body Report, EC and
certain member States – Large Civil Aircraft, para. 1318.
2061Panel Report, para. 7.1772 (quoting European Communities' oral statement at the first Panel
meeting (BCI), para. 14). Even though the Panel did not refer to any item of evidence to support its statement in
paragraph 7.1772, we have doubts about whether the issue of Boeing gaining knowledge and experience as an
integrator of the various technologies as a result of the aeronautics R&D subsidies is unsupported by evidence
on the Panel record as the United States suggests. In particular, we note that paragraphs 15-18 of Panel Exhibit
EC-1175 (HSBI/BCI) (Statement by Patrick Gavin et al. (8 November 2007)) contain an extensive explanation
of how LCA manufacturers remain responsible for the integration of the various technologies and components
from internal and external sources, and how Boeing has gained "integration" experience and knowledge from
participating in the aeronautics R&D subsidies. This exhibit was referred to by the Panel in paragraph 7.1771 of
its Report, that is, the paragraph preceding the one in which the Panel referred to Boeing obtaining knowledge
and experience as an integrator of the various technologies and on which the United States bases its claim under
Article 11 of the DSU.
2062Panel Report, para. 7.1769.
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dissemination does not occur immediately".
2063 Second, the Panel addressed, in the last two sentences
of paragraph 7.1771, the United States' argument that crucial technologies used on the 787 from
third-party suppliers were equally available to Ai rbus. The Panel found that the United States had
failed to rebut a "critical assertion" made by th e European Communities in HSBI submissions, and
supported by evidence 2064, that technologies from third-party suppliers used on the 787 are not
commercially available.2065 Only then did the Panel state, in paragraph 7.1772, that the United States'
argument that critical technologies from third-part y suppliers are equally available to Airbus
overlooked the importance of Boeing gaining expe rience and knowledge as an integrator of the
various technologies on account of the aeronautics R&D subsidies.
995. In our view, paragraph 7.1772 contains a mere passing observation by the Panel that, even if
Airbus had access to technologies provided by thir d-party suppliers on a commercial basis, it would
not have had the ability to use such technologies th e way Boeing did due to the experience the latter
had gained, through the aeronautics R&D subsidies, as an integrator of the various technologies. 2066
Thus, we do not consider that the statement in paragraph 7.1772 was material to the Panel's
disposition of the argument that critical technologi es from third-party suppliers were commercially

2063Panel Report, para. 7.1771 and footnote 3699 thereto. We also recall that, in its analysis of financial
contribution with respect to the NASA R&D programmes, the Panel found that certain contracts between NASA
and Boeing under the ACT programme contained a "For Early Domestic Dissemination" clause, whereby a
contractor would not be able to grant permission to pub lish data resulting from R&D or release such data to
foreign parties without prior concurrence of the "Contracting Officer". The intention of these clauses was to
provide for early dissemination of significantly commercial data in the US Government and the domestic
industry prior to general publication. ( Ibid., para. 7.1001) Along similar lines, the Panel found that the
"Technology Transfer" Handbook for the HSR programme states that the LERD clauses aim at restricting access
to sensitive information generated in the HSR programme, and that these clauses serve the purpose of
controlling the transfer of such sensitive information to foreign competitors. (Ibid., para. 7.1007)
2064The Panel referred to Statement by Patrick Gavin et al. (8 November 2007) (Panel Exhibit EC-1175
(HSBI/BCI)), but did not discuss its content or the reasons why it was persuaded by it. However, we note that
the United States does not challenge, under Article 11 of the DSU, the Panel's reliance on Panel Exhibit
EC-1175 in the last two sentences of paragraph 7.1771. In any event, having verified its content, we consider
that this item of evidence was pertinent to the Panel's analysis.
2065Panel Report, para. 7.1771. We also observe that, subsequent to the filing of the
European Communities' second written submission and Stat ement by Patrick Gavin et al. (8 November 2007)
(Panel Exhibit EC-1175 (HSBI/BCI)), the United States ma de certain statements that various technologies used
on the 787 were developed by third-party suppliers and that such technologies were also available to Airbus.
(See, for instance, United States' response to Panel Question 208(a), para. 287; and United States' comments on
the European Communities' response to Panel Question 150(b), para. 187) However, despite making certain
assertions, the United States did not produce any supporting evidence of its own.
2066We observe, in this respect, that the Panel had previously found that:
… the real value of the aeronautics R&D subsidies was in having dozens of
Boeing engineers immersed in composite design and manufacturing for
several years, thus enabling Boeing to leverage the substantial accumulated
knowledge and experience in any future composite-related R&D activity.
(Panel Report, footnote 3684 to para. 7.1756 (referring to Statement by Patrick Gavin et al. (8 November 2007)
(Panel Exhibit EC-1175 (HSBI/BCI)), para. 27; and D. Wacht, "An Analysis of Selected NASA Research
Programs and Their Impact on Boeing's Civil Aircraft Programs" (November 2006) (Panel Exhibit EC-15
(BCI)), p. 67))
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available to Airbus, since this argument had alre ady been rejected by the Panel in the last two
sentences of the preceding paragraph. Therefor e, even in the absence of the statement in
paragraph 7.1772, the Panel's rejection of the United States' argument that critical technologies used
on the 787 from third-party suppliers are equally commercially available to Airbus would nevertheless
stand.
996. Thus, we find that the Panel did not act inconsis tently with Article 11 of the DSU, or lack a
factual basis for its statement, in paragraph 7.1772 of the Panel Report, that "{t}he "ability to define
and manage the complex interaction of design pro cesses, organization and tools so as to enable the
robust development and manufacturing of an aircraft at minimum time and cost … is a challenge that
Boeing can meet thanks in large part to NASA a nd {USDOD} funding". It follows that we cannot
accept the United States' request that we reverse the Pa nel's finding, in paragraph 7.1772 of the Panel
Report, that the aeronautics R&D subsidies at issu e afforded Boeing knowledge and experience as an
"integrator of the various technologies".
(d) Whether the Panel erred in its a ppreciation of the relevance of
NASA's public dissemination of the results of the NASA R&D
997. The United States argues that the Panel failed pr operly to take into account the fact that
"NASA's public dissemination requirement"
2067 lessens the value of the aeronautics R&D subsidies to
Boeing. The United States highlights the Panel's finding that NASA restricts the public dissemination
of "certain aspects" 2068 of its research. According to the Unite d States, the "critical implication" of
this finding was that the data restriction clau ses, including LERD clauses, contained in NASA
contracts with Boeing restrict dissemination of " certain aspects" of research results only for a limited
time.2069 With respect to all of the other aspects—that is, those that are disseminated—the
United States contends that the Panel should have taken into account that some portion of the NASA
aeronautics R&D subsidies valued at $2.6 billion is of less value in both a competitive and monetary
sense.2070 The Panel, however, declined to discount the value of the aeronautics R&D subsidies in
this way.

2067United States' other appellant's submission, p. 101, subheading VI.B.1.e. By "NASA's public
dissemination requirement", the United States appears to refer to its argument that the NASA research results
are "publicly disseminated and therefore widely known and well understood within the global community of
engineers and scientists working in a particular area". (Panel Report, para. 7.1770 (referring to Statement of
Michael Bair (Panel Exhibit US-7), pa ras. 33 and 34; and Affidavit of Branko Sarh (Panel Exhibit US-1254),
para. 5))
2068Panel Report, para. 7.1771.
2069United States' other appellant's submission, para. 250.
2070United States' other appellant's submission, para. 250.
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998. In response, the European Union argues that th e Panel correctly found, within the bounds of
its discretion, that the dissemination by NASA of its research results is limited because of contractual
restrictions designed to favour US LCA manufacturers.
2071 Moreover, the European Union highlights
that the Panel's finding was based on its acceptanc e of the European Comm unities' argument that
NASA does not generally publicly disclose or dissem inate anything that is commercially useful or
important.2072
999. We recall that the Panel estimated the value of the NASA subsidies at $2.6 billion, but was
unable to quantify the value of the USDOD subsidies. 2073 As we have noted above, the Panel
considered the effect of NASA dissemination policies in the fourth pillar of its analysis relating to the
conditions of competition in the US LCA industry. There, the Panel addressed an argument of the
United States that NASA aeronautics R&D subsidi es did not confer a "competitive advantage" on
Boeing vis-à-vis Airbus because the results of NASA-funded research are widely disseminated and
therefore widely known and well understood within the global community of engineers and scientists
working in a particular area. 2074 As we have also noted above, the Panel ultimately rejected this
argument because it considered that there are rest rictions on the dissemination of the NASA results
and because dissemination does not occur immediately. In support, the Panel referred to the data
restriction clauses in NASA and USDOD contracts—that is, the "(i) limited exclusive data rights
{sic} {LERD}, (ii) for early domestic dissemination, and (iii) requirements for prior written approval
before the release of certain technical information."
2075 The Panel noted that, "{a}lthough differing in
their nature and scope, each of these limited access rights seek to delay the foreign transfer of
commercially sensitive information or prevent its public release without prior written approval of
NASA or {US}DOD."2076

2071European Union's appellee's submission, para. 402 (referring to Panel Report, footnote 3699 to
para. 7.1771).
2072European Union's appellee's submission, para. 403 (referring to European Communities' oral
statement at the first Panel meeting (BCI), para. 22; European Communities' second written submission to the
Panel, paras. 793 and 829-833; European Communities' oral statement at the second Panel meeting (BCI),
paras. 15-21; Statement by Patrick Gavin et al. (8 November 2007) (Panel Exhibit EC-1175 (HSBI/BCI)),
paras. 34-40; and Declaration by Ray Kingcombe (9 November 2007) (Panel Exhibit EC-1177).
2073Panel Report, paras. 7.1433 and 7.1760.
2074Panel Report, para. 7.1770 (referring to Statement of Michael Bair (Panel Exhibit US-7), paras. 33
and 34; and Affidavit of Branko Sarh (Panel Exhibit US-1254), para. 5).
2075Panel Report, footnote 3699 to para. 7.1771.
2076Panel Report, footnote 3699 to para. 7.1771. These statements of the Panel are consistent with
earlier findings made in the course of its subsidy an alysis. For instance, the Panel referred to "For Early
Domestic Dissemination" clauses (para. 7.1001), and LERD clauses (para. 7.1024). As we have noted
previously, the diminution of benefits, due to dissemination, is limited by the fact that Boeing held patent or
exclusive data rights and, therefore, disseminated information was often not put to commercial use by others.
Therefore, the benefit flowing from aeronautics R&D subsidies to Boeing was not necessarily reduced by the
dissemination of R&D results.
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1000. The Panel's findings indicate that research results subject to data restriction clauses were the
most commercially sensitive information and, ther efore, of the most value to Boeing and its
competitors. The United States does not advance arguments as to how the competitive position of
Airbus was improved—or how Airbus suffered lesser adverse effects—because "certain aspects" of
the results of the NASA research programmes were di sseminated. Nor does the United States explain
what the impact of any reduction in the $2.6 b illion amount of the NASA subsidies would be on the
Panel's findings with respect to the effects of those subsidies, especially given the fact that the Panel
did not equate the effects of the aeronau tics R&D subsidies with their cash value.
2077 Finally, if the
United States is seeking to have us step into the sh oes of the Panel and, ourselves, find that the value
of the NASA aeronautics R&D subsidies was someth ing less than $2.6 billion, we do not see how we
could do so given the limits on the scope of appellate review.
1001. In any event, the United States does not request that we disturb the other bases on which the
Panel rejected the United States' arguments that Boeing was less competitive due either to the
dissemination of the NASA results or to the availab ility of the same research to Airbus. As we have
noted previously, the Panel made additional findings that:
… it is {not} very realistic to believe that NASA would so
consistently and prominently state that the objectives of the
aeronautics R&D programmes were to provide a competitive
advantage to U.S. subsonic transport by accelerating the development
of key, high payoff technologies if all of the NASA-funded R&D
were in fact research that was publicly disseminated and equally
available to Airbus. Nor is the Panel persuaded that the critical
technologies that Boeing developed in collaboration with its
suppliers are equally available to Airbus. The Panel notes that the
United States has failed to rebut a critical assertion made by the
European Communities in its HSBI submissions and evidence in this
regard.
2078 (footnote omitted)
1002. For these reasons, we dismiss the United States' argument that the Panel's findings concerning
the dissemination of certain NASA research lessen the value of the aeronautics R&D subsidies, and
thereby undermine the Panel's finding that the aer onautics R&D subsidies contribute in a genuine and
substantial way to the 787 technologies.

2077Panel Report, para. 7.1760. We discuss this in subsection (e) below.
2078Panel Report, para. 7.1771.
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(e) Whether the Panel erred in its assessment of the magnitude of the
NASA aeronautics R&D subsidies
1003. Finally, the United States asserts that the $2.6 billion worth of aer onautics R&D subsidies
found to have been provided to Boeing from 1989 to 2006 "is small compared to Boeing's own
research and development spending"
2079, and that, therefore, any link between the research and
Boeing's ability to develop and launch the technologica lly innovative 787 in 2004 "is that much more
attenuated".2080
1004. In response, the European Union highlights th at the Panel properly recognized that the
aeronautics R&D subsidies were "intended to multiply the benefit from a given expenditure" 2081 and
argues that the Panel "was not required to attach pa rticular significance to the amount of the financial
contribution in comparison to other expenditure".2082
1005. We recall that the Panel dealt with the magnitude of the subsidies, as compared with Boeing's
own revenues and R&D expenditures, in response to an argument by the United States that Boeing's
capacity and ability to conduct R&D would have a llowed it to conduct the sa me R&D with the same
results, even in the absence of the NASA and USDOD funding.2083 In dismissing the relevance of the
comparative insignificance of the known value of aeronautics R&D subsidies, the Panel made the
following finding:
The Panel is aware, however, that this amount {of at least
$2.6 billion} perhaps may not appear significant when compared to
Boeing's consolidated revenues or R&D expenditures over
1989-2006. Indeed, as the United States points out, Boeing
repurchased over $16 billion in stock between 1986 and 2006.
However, this sort of numerical comparison presupposes that the
effects of the aeronautics R&D subsidies can essentially be reduced
to their cash value, a proposition that we do not accept. ...
{T}he value to Boeing of the particular aeronautics R&D
programmes in question is essentially a function of the technological
advancements that those programmes provide. Precisely because the
nature of this kind of subsidy is that it is intended to multiply the
benefit from a given expenditure, the Panel considers it unlikely that

2079United States' other appellant's submission, para. 251.
2080United States' other appellant's submission, para. 252.
2082European Union's appellee's submission, para. 394.
2083Panel Report, para. 7.1759. The Panel never pl aced a value on the amount spent by Boeing on
R&D. In its other appellant's submission, the United States argues that costs for a full aircraft development
programme like the 787 are around $2 billion per year. (United States' other appellant's submission, para. 251
(referring to The Boeing Company Annual Report (2006) (Panel Exhibit US-126), p. 26 ($2,390 million in R&D
for Boeing Commercial Aircraft in 2006))) The United States argues that, even in 2000, the slowest year
covered by the information before the Panel, Boeing's R&D spending ran at $574 million. ( Ibid., footnote 399
thereto (referring to Statement of Michael Bair (Panel Exhibit US-7), para. 42))
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the effects of such expenditure (to the extent that it was successfully
deployed) would be reducible to its face amount. … As we have
noted above …, there are large disincentives for private sector
investment in research of the kind that was conducted under the
aeronautics R&D subsidies, and any suggestion that a firm such as
Boeing would have conducted such re search is subject to the same
fundamental objection here.
2084 (footnote omitted)
1006. The Appellate Body has stated previously that, while the magnitude of subsidies is important,
precise quantification is not an indispensable part of a serious prejudice analysis. 2085 Moreover, the
absolute value or size of a subsidy may not corresp ond directly to the impact that the subsidy may
have in causing adverse effects. Subsidies of a relatively small magnitude may nevertheless have
substantial effects in a particular case or market. We understand the Panel to have found this to be the
case as regards the effects of the aeronautics R&D subsidies.
1007. As the above finding of the Panel demonstrat es, the Panel itself recognized that the amount
spent by NASA on the aeronautics R&D subsidies wa s not large as compared to Boeing's revenues
and its own R&D expenditures. However, the Panel stressed that the aeronautics R&D subsidies
allowed Boeing to overcome the disincentives in inv esting in risky aeronautics R&D. For the Panel,
the relative magnitude of the amounts spent by NAS A and Boeing did nothing to reduce or diminish
that important contribution. We see no reason to disagree.
1008. The United States makes two additional arguments regarding the Panel's consideration of the
magnitude of the subsidies. First, it emphasizes th e Panel's statement that, "because the nature of this
kind of subsidy is that it is intended to multiply the benefit from a given expenditure, {it was} unlikely
that the effects of such expend iture (to the extent that it was successfully deployed ) would be
reducible to its face amount."
2086 For the United States, any "multiplying" of the benefit of a given
expenditure would equally apply to Boeing's internal R&D expenditure.2087 Second, the United States

2084Panel Report, para. 7.1760.
2085Appellate Body Report, US – Upland Cotton, para. 467. We recall that the panel in EC and certain
member States – Large Civil Aircraft stated that "the relevant question is not the precise amount of subsidy
attached to each unit of th e subsidized product, but rather whether th e subsidies in question are of sufficient
magnitude, in light of their nature and effect, to have caused the serious prejudice alleged". (Panel Report, EC
and certain member States – Large Civil Aircraft , para. 7.1968) That issue was not appealed in that dispute.
We also note that, in that same dispute, the Appellate Body treated Airbus' "financial viability" and,
consequently its ability to self-fund R&D, as a factual ma tter that was not reviewable in the absence of a claim
under Article 11 of the DSU. (Appellate Body Report, EC and certain member States – Large Civil Aircraft ,
para. 1316)
2086Panel Report, para. 7.1760. (emphasis added)
2087United States' other appellant's submission, para. 254.
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asserts that the Panel failed to take into account that many of the NASA payments found by the Panel
to constitute subsidies were not "successfully deployed".
2088
1009. As regards the United States' first argument, it is not clear to us that the Panel excluded the
possibility of a "multiplier" effect for Boeing's ow n R&D expenditures. Neither is it clear to us
whether the Panel's reference to a "multiplier" effect was based on a qualitative or quantitative
assessment of the value of R&D expenditures. More over, even if the value of Boeing's expenditures
were multiplied, we do not see how this reduces the important contribution made by the NASA
subsidies that, as explained above, were indispensable in allowing Boeing to overcome the
disincentives it faced in investing in risky aeronautics R&D.
1010. With respect to the second argument, the Un ited States reads the Panel's parenthetical
reference to "successfully deployed"
2089 expenditures to imply that the aeronautics R&D subsidies that
funded research that was ultimately unsuccessful made no contribution to the development of the 787
technologies. As we have already explained 2090, however, the causal link found by the Panel
incorporated within its scope even those research programmes that were not directly related to
technologies used on the 787, including research conducted under research programmes that resulted
in failed technologies. We therefore do not read the Panel's statement that the benefits were
multiplied to the extent that they were "successfully deployed" 2091 as excluding altogether those
programmes that resulted in failures, because, by the Panel's own account, these failed research efforts
also contributed, albeit to a lesser extent, to the success of the 787.
1011. Accordingly, we do not accept that the differe nce in the magnitude of the aeronautics R&D
subsidies and Boeing's own R&D spending attenuat es the Panel's intermediate finding that the
subsidies contributed in a genuine and substantial way to the development of the technologies used on
the 787 in 2004.
(f) Conclusion
1012. We recall that, in this part of its appeal, th e United States seeks reversal of the Panel's legal
finding that the aeronautics R&D subsidies cau sed adverse effects to the interests of the
European Communities on the ground that a number of the Panel's findings, "when considered in their
totality", do not establish a genuine and substantia l relationship of cause and effect, as required under

2088United States' other appellant's submission, para. 255.
2089Panel Report, para. 7.1760.
2090See supra, subsection X.B.4.a.
2091Panel Report, para. 7.1760.
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Articles 5 and 6.3 of the SCM Agreement.
2092 The United States raised five main arguments in
support of its claims that the Panel failed properly to apply the legal standard to the facts, and one
argument that the Panel failed to make an objectiv e assessment of the matter under Article 11 of the
DSU. We have dismissed all five of the United St ates' arguments, either because the United States'
arguments relate solely to factual matters not s ubject to a DSU Article 11 challenge, or because, on
the merits, the United States has not succeeded in dem onstrating that the Panel failed properly to find
the existence of a genuine and substantial causal link. We have also rejected the United States' claim
under Article 11 of the DSU. Accordingly, we reject the United States' request that we reverse the
Panel's finding at the first stage of its analysis, in paragraph 7.1773 of the Panel Report, as well as its
request for consequential reversal of the Panel' s finding that the aeronautics R&D subsidies caused
adverse effects to the interests of th e European Communities. Instead, we find that the Panel did not
err by finding, in paragraph 7.1773 of the Pa nel Report, that "the aeronautics R&D subsidies
contributed in a genuine and substantial way to Boeing's development of technologies for the 787"
in 2004.
6. The Panel's Counterfactual Analysis
(a) Introduction
1013. In its second set of arguments on appeal, the United States seeks reversal of the Panel's
finding that, "absent the aeronautics R&D subsidies, Boeing would not have been able to launch an
aircraft incorporating all of the technologies that ar e incorporated on the 787 in 2004, with promised
deliveries commencing in 2008" 2093, as well as its "dependent" finding that the aeronautics R&D
subsidies caused adverse effect s to the European Communities. 2094 The United States alleges that
these findings are in error because, in both the fi rst and second stages of its assessment of the
technology effects, the Panel's counterfactual analysis was insufficient. We reca ll, in this regard, that
the first stage entailed an analysis of the effect of the aeronautics R&D subsidies on Boeing, whereas
the second stage was concerned with the effect of the aeronautics R&D subsidies on Airbus.

2092United States' other appellant's submission, para. 257. As we have noted, it is not clear whether the
United States contends that our acceptance of any one of its arguments would call into question the Panel's
overall conclusion or whether its argument is rather that, taken together, the various claims of deficiency require
reversal of the Panel's ultimate finding on causation. We have also explained that, while an appellant is free to
frame its appeal as it sees fit, it must bear the conseque nces of that decision. Wher e there is disagreement or
ambiguity as to the nature of the appeal, the Appellate Body will act as the final arbiter in determining whether
the claim is one that can be properly the subject of appellate review.
2093Panel Report, para. 7.1775.
2094United States' other appellant's submission, para. 278.
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1014. With respect to the first stag e, the United States asserts that, although the Panel posed the
right counterfactual question—namely whether Boei ng would have launched the 787 when it did, and
as it did, in the absence of the aeronautics R&D subs idies—it erred in applying Articles 5 and 6.3 of
the SCM Agreement through its "cursory" and "insuffi cient" counterfactual analysis.
2095 According to
the United States, the Panel failed to take into account all of the findings that it had made at the first
stage of its analysis, including those made with respect to the nature of the aeronautics R&D
subsidies; Boeing's research priorities and activiti es, as well as its available resources; and the
conditions of competition in the LCA industry. The United States argues that, when properly
considered, these findings should have led the Panel to conclude that, even without the aeronautics
R&D subsidies, Boeing would ha ve launched the 787 when it did and with the same level of
technological innovation.2096
1015. The United States also challenges the adequacy of the Panel's counterfactual analysis as it
relates to the second stage of its analysis. These ar guments are set out in the United States' appellee's
submission, which it submitted after the circulation of the Appellate Body report in EC and certain
member States – Large Civil Aircraft . Relying largely on the findings of the Appellate Body in that
dispute, the United States asserts that, in assessing the European Co mmunities' claims of significant
lost sales, significant price suppression, and a threat of displacement and impedance, the Panel should
have explored further a counterfactual scenario invol ving Boeing aircraft that the Panel had deemed
"most likely"2097 to have occurred in the absence of subsidies.
1016. The finding that the United States would like reversed—namely that, absent the aeronautics
R&D subsidies, Boeing would not have been able to launch an aircraft incorporating all of the
technologies that are incorporated in the 787 in 2004, with promised deliveries commencing in
2008—is found at the beginning of the second stage of the Panel's analysis, immediately following the
Panel's in-depth analysis at the fi rst stage. At that midway point of its overall analysis of the
technology effects of the aeronautics R&D subsidi es, the Panel recalled the main counterfactual
argument of European Communities, namely that:

2095United States' other appellant's submission, para. 258.
2096United States' other appellant's submission, paras. 258 and 261.
2097Panel Report, para. 7.1775.
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… but for the aeronautics R&D subsidies, (i) Boeing could not have
launched, in April 2004, a 787 family of LCA offering the many
operating cost savings and enhancements in passenger comfort that
have made it such a commercial success relative to the A330 and
Original A350; and (ii) Boeing c ould not have contractually bound
itself to make significant deliveries of the 787 starting in 2008.
2098
(footnotes omitted)
1017. The Panel noted that the evidence before it dem onstrated that Boeing needed to develop an
LCA to replace the 767 in the 200-300 seat LCA market , and that it would have done so in the early-
to mid-2000s. 2099 The Panel considered that the only ques tion before it was "what sort of aircraft
Boeing could have developed, and when that aircraft could have been launche d and first entered into
service, in the absence of th e aeronautics R&D subsidies." 2100 The Panel found that, had Boeing not
received the aeronautics R&D subsidies:
… two scenarios {were} most likely: Boeing would have developed
a 767-replacement that incorporated all of the technologies that are
incorporated on the 787, but its launch would have been significantly
later than 2004 and it would not have been able to promise first
deliveries for 2008, or Boei ng would have launched a
767-replacement in 2004 that was technologically superior to
the 767, but did not offer the degree of technological innovation of
the 787. We do not have to reach any definitive view on which of
these outcomes would have occurred. What is clear to us is that,
absent the aeronautics R&D subsidies, Boeing would not have been
able to launch an aircraft incorporating all of the technologies that are
incorporated on the 787 in 2004, with promised deliveries
commencing in 2008.
2101
1018. The Panel's reasoning demonstrates that it engage d in a counterfactual analysis of causation,
as had been proposed by the Europ ean Communities. The United States did not object to the use of
the counterfactual analysis in the Panel proceedings 2102, nor does it raise any objection to such an
analysis on appeal.
1019. The provisions of Part III of the SCM Agreement that deal with causation—that is, Articles 5
and 6.3—require a demonstration that the market phenomena specified in Article 6.3(a)-(d) be
"caused" by, or be the "effect of", the subsidy. Beyond this, these provisions do not prescribe the

2098Panel Report, para. 7.1774. The Panel noted that, rather, according to the European Communities, it
would have taken Boeing "years longer" as well as much more of its own money to do so. ( Ibid., footnote 3702
thereto (referring to European Communities' first written submission to the Panel, Annex C, para. 199))
2099This finding was based on the evidence before the Panel that Boeing had concluded in the late
1990s that route fragmentation would lead to a larger number of lower-volume routes, best served by a
mid-sized, extended range aircraft (a commercial assessment unrelated to the subsidies), and that such an
aircraft was needed due to the age of the 767. (Panel Report, para. 7.1774)
2100Panel Report, para. 7.1774. (footnotes omitted)
2101Panel Report, para. 7.1775.
2102Panel Report, para. 7.1657.
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manner in which a panel must conduct its analysis of causation. A counterfactual analysis is a form of
analysis that a panel may find useful in resolving questions of causation.
2103 The precise way in
which counterfactual reasoning is deployed will va ry depending on how the causal problem presents
itself in a particular dispute. A counterfactual an alysis may be highly quantitative, or predominantly
qualitative in nature, or it may involve both quantitative and qualitative elements.
1020. In seeking to discharge its burden of demonstr ating the effects of relevant subsidies, a
complaining party may elect to employ a counterfactual analysis. Indeed, a complaining party may
well find it difficult to establish causation of certain Article 6.3 phenomena (for example, impedance
and price suppression) without counterfactual argum entation. A panel evaluating the respective
claims and defences of the parties will also have to give due consideration to the use of a
counterfactual analysis, especially when such an an alysis forms part of the arguments submitted by
the parties. The panel might decide to accept the counterfactual scenario(s) proposed by one party as
to the market situation that would have preva iled absent the subsidies, but it is not bound to do
so.2104 Rather, as part of its objective assessment of the matter, a panel will have to form its own view
as to what a market unaffected by subsidies would have looked like and may find it appropriate to
construct its own counterfactual scenario(s). A pane l is not required to identify and explore every
possible hypothetical market scenario, especially wh ere the parties themselves have not elaborated
upon, or substantiated the likelihood of, such possible scenarios. The extent to which a panel may or
must elaborate upon the specific details of its cons tructed alternative will vary by case, but, having
selected a reasonable scenario, a panel should pursue its counterfactual analysis in a coherent and
consistent fashion.
1021. Turning to the United States' criti cism of the Panel's counterfactua l analysis in this case, we
note first that the United States identifies the "count erfactual portion" of the Panel's analysis as
comprising the following "two findings":

2103The Appellate Body has found that a counterfactual analysis:
… provides an adjudicator with a useful analytical framework to isolate and
properly identify the effect s of the challenged subsidies. ... As with other
factual assessments, panels clearly have a margin of discretion in
conducting the counterfactual analysis.
(Appellate Body Report, EC and certain member States – Large Civil Aircraft , para. 1110 (footnote omitted))
In some contexts, including in assessing claims of price suppression, the Appellate Body has explained that a
counterfactual analysis is an "i nescapable" part of a causation analysis. (Appellate Body Report, US – Upland
Cotton (Article 21.5 – Brazil) , para. 351) See also Appellate Body Report, EC and certain member States –
Large Civil Aircraft, footnote 2549 to para. 1162.
2104In this regard, the Appellate Body in US – Upland Cotton (Article 21.5 – Brazil) , in discussing the
approach to causation and non-attribution taken by the compliance panel in that dispute (in the context of a
claim of significant price s uppression), noted that "a panel has a certa in degree of discretion in selecting an
appropriate methodology for determining whether the 'e ffect' of a subsidy is significant price suppression".
(Appellate Body Report, US – Upland Cotton (Article 21.5 – Brazil), para. 370 (quoting Appellate Body Report,
US – Upland Cotton, para. 436))
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(i) "Boeing needed to develop an LCA to replace the 767 in the 200-300 seat wide-body
product market, and … it would have done so in the early- to mid-2000s"; and
(ii) "{A}bsent the aeronautics R&D subsidies, Boeing would not have been able to
launch an aircraft incorporating all of the technologies that are incorporated on
the 787 in 2004, with promised deliveries commencing in 2008."
2105
1022. Contrary to the argument of the United St ates, we do not understand the counterfactual
enquiry engaged in by the Panel to be limited to simply the two pa ragraphs in which these findings
are contained. The Panel explained that it would adopt a counterfactual approach to causation for
both stages of its causation analysis. 2106 That counterfactual analysis appears to us to have been
underpinned by its consideration of: (i) the counterfactual scenario presented by the
European Communities that, without the subsidies, Boeing would not have launched the 787 in 2004,
but rather would have done so later 2107; and (ii) the counterfactual scenario presented by the
United States, namely that, without the subsidies, Boeing would have launche d the same 787 aircraft
with the same technologies at the same time that it did because it had the financial capacity to do so,
and because it was engaged in the same R&D research as NASA.2108
1023. The Panel based its analysis at the first stage on these respective counterfactual scenarios
presented by the parties. For instance, in finding that the aeronautics R&D s ubsidies accelerated the
time at which Boeing was able to bring the tec hnologies on the 787 to commercial application, the
Panel accepted the European Communities' contenti on that it was the aeronautics R&D subsidies that
allowed Boeing to deliver the 787 earlier th an would have otherwise been possible. 2109 Equally, in
finding that, notwithstanding Boeing's financial capacity, as well as its own investment and
participation in R&D, the aeronautics R&D subsidies contributed in a genuine and substantial way to
the 787, the Panel rejected the counterfactua l scenario that had been advanced by the
United States.
2110
1024. Having rejected the United States' counterfactual scenario at the first stage, the Panel appears
to have conducted its analysis at the second st age on the basis of the European Communities'
counterfactual scenario of a 787 that would not have been present in the market until "years later"

2105United States' other appellant's submission, para. 260 (referring to Panel Report, paras. 7.1774
and 7.1775).
2106Panel Report, para. 7.1659.
2107We have already noted the argument of the European Communities to the Panel that it would have
taken Boeing "years longer" as well as much more of its own money to do so. (Panel Report, footnote 3702 to
para. 7.1774 (referring to European Communities' first written submission to the Panel, Annex C, para. 199))
2108See, for instance, United States' oral statement at the second Panel meeting, paras. 144 and 145.
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(that is, not available to customers until well after 2004). Under the European Communities' scenario,
the market during the reference period would most likely have consisted of the A330 and the 767,
which were the two models available before 20 04. The Panel found that the A330 was the
"undisputed market leader" in the 200-300 seat LCA market
2111, with an 82% share of the market
in 2003.2112 Without the subsidies, therefore, it is likel y that most sales would continue to have gone
to that aircraft, and that increased demand 2113 would have enabled the market leader to maintain or
even raise prices.
1025. This is the basis upon which we understand the Pa nel to have proceeded in its counterfactual
causation analysis and to have determined that, but for the aeronautics R&D subsidies, Airbus would
not have suffered significant lost sales and price suppression, and a threat of displacement and
impedance of its LCA exports. Yet, when it ar ticulated the counterfactual scenarios, the Panel
appears, at least in part, to have deviated from th e arguments of the parties as well as from the basis
upon which it conducted its own analys is. As we have noted above, th e Panel considered that, in the
absence of the aeronautics R&D subsidies, two scenar ios were "most likely". The first involved the
launch of a 767-replacement, which incorporated a ll of the technologies that are incorporated in
the 787, but with a launch that would have been significantly later than 2004, and in which Boeing
would not have been able to promise first deliver ies by 2008 (which we refer to as the "787-later"
scenario). This scenario is in essence the one pr esented by the European Communities. The Panel
also found it likely that Boeing would have launched a 767-replacement in 2004 that was
technologically superior to the 767, but did not offer the degree of technological innovation of the 787
(which we refer to as the "767-plus" scenario). This latter scenario of a 767-plus, however, had not
been specifically advanced by either of the parties, is not referred to in the evidence on record, and is
not reflected in the content of the Panel's counterfactual reasoning. For this reason, we find it difficult
to sustain the arguments of the United States that are predicated on the counterfactual scenario
involving a 767-plus aircraft.
(b) The Panel's counterfactual analysis: the first stage
1026. In its other appeal, the United States contends that the Panel erred in its application of
Articles 5 and 6.3 of the SCM Agreement because of its "cursory" and "insufficient" counterfactual
analysis.
2114 According to the United States, a proper c ounterfactual analysis required the Panel to
consider the nature of the subsidies; Boeing' s research priorities and activities, and available

2111Panel Report, para. 7.1777.
2113We have noted above the Panel's finding that ther e was an increase in demand in the 200-300 seat
LCA market during the reference period. (Supra, para. 932)
2114United States' other appellant's submission, para. 258.
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resources; and the conditions of competition in the LCA industry.
2115 The United States argues that
these factors indicate that, in the absence of th e aeronautics R&D subsidies, Boeing would have
followed the same course as it did with the subsidies: investigating the same areas, at the same pace,
and aiming for the same goal, namely, a technologica lly advanced aircraft commercially competitive
with the A330. 2116 Therefore, the Panel's analysis failed to establish the requisite causal link.
Consequently, the United States requests us to reve rse the Panel's finding that, "absent the aeronautics
R&D subsidies, Boeing would not have been able to launch an aircraft incorporating all of the
technologies that are incorporated on the 787 in 2004, with promised deliveries commencing
in 2008"
2117, and its "dependent" finding that those subs idies have caused adverse effects to the
interests of the European Communities.2118
1027. The European Union responds that the United States' arguments relate exclusively to facts and
should have been brought under Article 11 of the DSU. In any event, the European Union argues that
the Panel's counterfactual analysis was sufficient a nd demonstrates that it properly completed the first
step of its counterfactual analysis regarding how Boeing's commercial behaviour in the 200-300 seat
LCA market would have been different absent the aeronautics R&D subsidies.2119
1028. As a preliminary matter, we note that a panel' s counterfactual analysis will usually involve
both factual and legal elements, which may not be easily distinguishable. Here, the United States
appears to accept the Panel's factual findings. Acco rdingly, we will entertain the United States'
arguments on appeal only to the extent they imp licate the Panel's ultimate legal finding that the
aeronautics R&D subsidies were a genuine and substantial cause of the serious prejudice.
1029. Turning to the specific allegations, the United States refers to six findings of the Panel that, in
its view, should have led the Panel to conclude th at, even without the subsidies, Boeing would have
launched an LCA in 2004 with all of the technologi cal innovations of the 787, capable of competing
with the A330.2120 These findings are that: (i) Boeing and Airbus "have strong commercial incentives
to spend the resources needed to gain a technical advantage over competitors" 2121; (ii) Boeing knew
what research needed to be done since the scope and programme of research was arrived at in

2115United States' other appellant's submission, paras. 258 and 261.
2116United States' other appellant's submission, para. 278.
2117United States' other appellant's submission, para. 278 (referring to Panel Report, para. 7.1775).
2118United States' other appellant's submission, para. 278.
2119European Union's appellee's submission, para. 414.
2120See United States' other appellant's submission, para. 278.
2121United States' other appellant's submission, para. 263 (referring to Panel Report, paras. 7.1765
and 7.1768).
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collaboration with industry
2122; (iii) NASA funded and conducted its research the same way that
Boeing did, that is, by paying scientists to cond uct the research and obtain the use of facilities and
equipment needed to perform the work 2123; (iv) any private party could engage the NASA facilities,
equipment, and employees through reimbursable Sp ace Act Agreements and Boeing paid cash in
exchange for those goods and services 2124; (v) Boeing was self-funding research on the same topics
and at the same time as NASA 2125; and (vi) Boeing had sufficient funds to achieve the same learning
and experience as that provided by the government's aeronautics R&D expenditures at issue.2126
1030. Many of these findings have been challenged by the United States in the first part of its appeal
and are already dealt with in the previous part of this Report. By labelling these arguments as
pertaining to the Panel's "counterfactual analysis", the United States appears to be repackaging several
arguments that we have already considered and dism issed above. The Panel's causation analysis must
be understood holistically as incorporating a counterf actual approach to causation. In that analysis,
the Panel assessed whether, but fo r the subsidies, Boeing could have developed the 787 by 2004. In
doing so, it expressly considered and engaged with arguments relating to Boeing's own involvement
in research alongside NASA, its access to research facilities, as well as its substantial financial
capabilities. As we have noted above, while it took account of these factors and acknowledged their
significance, the Panel still considered that the aerona utics R&D subsidies played an important role in
accelerating the development of the 787 techno logies, and allowing Boeing to overcome the
significant disincentives it faced in investing in long-term, high-risk aeronautics R&D. The
United States' attempt to frame its arguments as on es relating to the Panel's counterfactual analysis
does not undermine these key findings of the Pane l, which were indispensable to its finding that,
absent the aeronautics R&D subsidies, Boeing would not have developed the 787 by 2004, with all of
the technologies on it, and with promised deliveries for 2008.
1031. The United States raises one observation of the Panel—made in the context of its
consideration of the conditions of competition —with which we did not deal in the previous section,
namely that the "{t}he essence of the intense competition between Boeing and Airbus is to design and
build better airplanes". 2127 According to the United States, this statement suggests that LCA

2122United States' other appellant's submission, para. 264 (referring to Panel Report,
paras. 7.1740-7.1745).
2123United States' other appellant's submission, para. 265.
2124United States' other appellant's submission, para. 266 (referring to Panel Report, footnote 2624 to
para. 7.1082).
2125United States' other appellant's submission, para. 267 (referring to Panel Report, para. 7.1746).
2126United States' other appellant's submission, para. 268 (referring to Panel Report, paras. 7.1759,
7.1830, and 7.1831).
2127Panel Report, para. 7.1765 (quoting Dr. J. Jordan and Dr. G. Dorman, "Reply to the Report of
Professor Cabral" (NERA Economic Consulting, 2007) (Panel Exhibit US-3), p. 11).
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manufacturers have "strong incentives" to invest in R&D, and thereby "gain a technical advantage
over competitors".
2128 We understand the United States to ar gue that the Panel's reference to the
intense competition between Boeing and Airbus over the design and development of aircraft cannot
be reconciled with its finding that Boeing faced large disincentives to invest in early-stage/high-risk
R&D.
1032. We see no inherent contradiction between th ese two statements or between the Panel's
statement regarding the "essence of the inten se competition between Boeing and Airbus" and its
conclusion that, absent the subsidies, Boeing would not have been able to launch the 787 in 2004.
This is because the incentives created by the fi erce competition between Airbus and Boeing do not
exclude a finding that the investment required fo r aeronautics R&D was not warranted because of the
inherent risk. While the intensity of the comp etition provides an incentiv e for these companies to
invest in R&D, that incentive does not mean th at the investment would necessarily have been
undertaken by Boeing without the aeronautics R&D subsidies. In any event, the Panel found
otherwise.
1033. Finally, the United States makes a separate argu ment with respect to a response by the Panel
to its argument that, compared to the $16 billion spent by Boeing on repurchasing stock between 1986
and 2006
2129, the magnitude of the aeronautics R&D subsidies over a similar period was
inconsequential. Specifically, the Panel found that:
{t}he United States' invitation to compare the amounts of the
aeronautics R&D subsidies with Boei ng's payments to shareholders
may be taken also to imply that the ultimate effect of the aeronautics
R&D subsidies was merely to increase payments to Boeing's
shareholders. The Panel does not accept the proposition that the
effect of the aeronautics R&D subsidies was essentially to benefit
Boeing's shareholders by replacing funds that Boeing would
otherwise have spent on R&D.
2130
1034. The United States argues that the proposition rejected by the Panel—namely, that the effect of
the subsidies was essentially to benefit Boeing's shareholders—is a necessary implication of the
counterfactual analysis. In the United States' view , if the characterization that the effect of the
subsidies is "to increase payments" to shareholders prevents a conclusion that, in the absence of
subsidies, the relevant competitive situation would have remained the same, a counterfactual analysis

2128United States' other appellant's submission, para. 263.
2129Panel Report, para. 7.1760 (referring to Unite d States' comments on the European Communities'
2130Panel Report, para. 7.1760.
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becomes "meaningless" because it is always possibl e to say that the receipt of subsidies made
someone better off.
2131
1035. Unlike the United States, we understand the Pa nel in the above-quoted passage to reiterate
that the value of the aeronautics R&D subsidies to Boeing was not directly comparable to the cash
amounts paid to shareholders, and that the effects of the subsidies were not reducible to their cash
value. Rather, as the Panel found, the aeronautics R&D subsidies were intende d to have "multiplier"
effects.2132 They also allowed Boeing to overcome th e significant disincentives that it otherwise
faced.2133 Therefore, the Panel considered that a comparison of dollar amounts of the aeronautics
R&D subsidies with Boeing's available financial resources over the same period would not be an
appropriate metric by which to predict Boeing's likely commercial behaviour in the absence of the
subsidies.
1036. In the light of the above, we do not agr ee with the United States that the Panel's
counterfactual analysis, as applied in the first stage of its analysis, was insufficient or undermines the
genuine and substantial causal link th at the Panel found to exist. Accordingly, we are unable to agree
with the United States that the Panel erred in conc luding, in paragraph 7.1775 of the Panel Report,
that, "absent the aeronautics R&D subsidies, Boeing w ould not have been able to launch an aircraft
incorporating all of the technologies that are incorporated on the 787 in 2004, with promised
deliveries commencing in 2008".2134 Therefore, we reject the United States' request for reversal of the
above finding and for consequential reversal of the Panel's finding that the aeronautics R&D subsidies
caused adverse effects to the interests of the European Communities.2135
(c) The Panel's counterfactual analysis: the second stage
1037. The United States asserts that the Panel's count erfactual analysis is deficient because, in
assessing the effect of the aeronautics R&D subsidies on Airbus' sales and prices at the second stage,
the Panel failed to explore "what the market woul d look like" under the counterfactual scenario of a

2131United States' other appellant's submission, para. 276.
2132Panel Report, para. 7.1760.
2133Immediately following the above-quoted section, the Panel stated:
As we have noted above … we have no reason to doubt the evidence that
there are large disincentives for private sector investment in research of the
kind that was conducted under the aeronautics R&D subsidies, and any
suggestion that a firm such as Boeing would have conducted such research
is subject to the same fundamental ob jection here. Moreover, we consider
that it is implausible that such speci fically earmarked and scrutinized R&D
funds disbursed over such a period of time were effectively nothing more
than a transfer to shareholders.
(Panel Report, para. 7.1760)
2134Panel Report, para. 7.1775.
2135United States' other appellant's submission, para. 278.
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767-plus.
2136 Relying in particular on findings of the Appellate Body in EC and certain member States
– Large Civil Aircraft , the United States distinguishes the 767-plus scenario in this dispute from two
of the four scenarios considered by the Appellate Bo dy in that dispute involving the complete absence
of the recipient's aircraft in the ma rket in the absence of the subsidies 2137, and for which the
Appellate Body found that no further counterfactual analysis was necessary. The United States argues
that the 767-plus scenario is more analogous to the two other scenarios considered by the Appellate
Body in EC and certain member States – Large Civil Aircraft involving a weaker, unsubsidized
recipient entering the market in the absence of the subsidies 2138, for which the Appellate Body found
that a more detailed counterfactual analysis was required.2139
1038. Based on its understanding of the Appellate Body report in EC and certain member States –
Large Civil Aircraft, the United States argues that the Panel in this dispute could not have established
the existence of a genuine and substantial causal relationship between the aeronautics R&D subsidies
and the alleged serious prejudice without analyzing the 767-plus counterfactual scenario that it itself
had identified.
2140 Specifically, the United States asserts th at the Panel should have made findings as
to how a Boeing 767-plus would have competed against the older Airbus A330 or whether the
Original A350 would have been launched at all, given that it was a response to the 787.2141 Moreover,
in its examination of price suppression, the Panel looked only at the 787's impact on A330 and
Original A350 prices, not at what price impact would have resulted from a 767-plus. Likewise, adds
the United States, in its assessment of lost sales and threat of displacement or impedance, the Panel
failed to consider whether those airlines in resp ect of which it found lost sales would necessarily have
ordered from Airbus if the 787 had not been ava ilable, or what would have happened had Boeing
offered them a 767-plus.
2142
1039. In sum, the United States argues th at, when viewed in the light of EC and certain member
States – Large Civil Aircraft , the Panel's analysis in this case reveals shortcomings in its use of a
counterfactual analysis. As we have explained abov e, the adequacy of a counterfactual analysis must

2136We recall that this scenario of a "767-plus" involved a 767-replacement in 2004 that was
technologically superior to the 767, but did not offer the degree of technological innovation of the 787. (Panel
Report, para. 7.1775)
2137United States' appellee's submission, para. 284 (referring to Appellate Body Report, EC and certain
member States – Large Civil Aircraft, para. 1264).
2138United States' appellee's submission, para. 281 (referring to Panel Report, EC and certain member
2139Appellate Body Report, EC and certain member States – Large Civil Aircraft, para. 1264.
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be determined according to, inter alia , the scenarios, arguments, and evidence on the record of a
particular dispute.
2143
1040. On appeal, the United States' arguments that th e Panel's counterfactual analysis at the second
stage was inadequate are all based on the 767-plus scenario posited by the Panel. As we observed
above, however, this scenario was not based on an y counterfactual arguments of the parties.
Moreover, it was a scenario adverted to in passing by the Panel in the introduction to the second stage
of its analysis, even though there are no indications in the Panel's reasoning or factual findings to
support the statement that Boeing might have in troduced a new LCA model before all of the
technologies found on the 787 were ready for commercial application. Accordingly, we are unable to
agree with the United States' argume nt that the Panel's failure to pursue the counterfactual involving
a 767-plus was in error, and calls into question the genuine and substantial link found by the Panel to
exist between the aeronautics R&D subsidies and the relevant adverse effects. Accordingly, we
consider that the Panel did not err in its use of a counterfactual analysis or in finding, in
paragraph 7.1794 of the Panel Report, that " but for " the effects of the aeronautics R&D subsidies,
Airbus would not have suffered serious prejudice. We therefore also reject the United States' request
for consequential reversal of the Panel's finding that the aeronautics R&D subsidies caused adverse
effects to the interests of the European Communities.
7. The Panel's Analysis of the Effects of the Aeronautics R&D Subsidies on
Airbus
1041. The United States also separately appeals findi ngs of the Panel at the second stage of its
analysis in which it examined the effects of th e aeronautics R&D subsidies on Airbus' prices and
sales. We begin by recounting the relevant findings of the Panel.
1042. Having reached the conclusion that, absent the subs idies, Boeing would not have been able to
launch an aircraft with all of the technologies of the 787 in 2004, with projected deliveries in 20082144,
the Panel proceeded with its analysis of the Euro pean Communities' claims of serious prejudice.
Specifically, the European Communities had allege d that the aeronautics R&D subsidies adversely
affected Airbus' interests through:

2143See supra, paras. 1019 and 1020. We recall that the Appellate Body in EC and certain member
States – Large Civil Aircraft did not find a further counterfactual anal ysis necessary in two scenarios for which
it found it likely that, absent the subsidies, it would not have been possible for Airbus to have entered the market
at all. (Appellate Body Report, EC and certain member States – Large Civil Aircraft, para. 1264)
2144Panel Report, para. 7.1775.
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(i) significant price suppression of the A330, Original A350, and
A350XWB-800;
(ii) significant lost sales of the A330 and Original A350;
(iii) displacement and impedance of imports of the A330 and Original A350 into
the United States
2145;
(iv) displacement and impedance of exports of the A330 and Original A350 in
various third-country markets; and
(v) a threat of significant price suppression with respect to future orders of the
A330 and A350XWB-800 2146; or, in the alternative, a threat of significant
price suppression, a threat of significant lost sales, and a threat of
displacement and impedance of imports and exports with respect to future
deliveries of Airbus LCA.
2147
1043. The Panel began by examining the European Communities' allegations of significant lost
sales. It determined that the "performance characte ristics of the 787 and/or its scheduled entry into
service in 2008 appear to have been the decisi ve factors in the outcomes of the Qantas,
Ethiopian Airlines, and Icelandair campaigns in 2005 and the Kenya Airways campaign in 2006". 2148
For this reason, the Panel found that, "but for the effects of certain aeronautics R&D subsidies, Airbus
… would not have suffered significant lost sales within the meaning of Article 6.3(c) of the
SCM Agreement."2149
1044. Based on market share data for the relevant third-country markets in which the Panel had
found lost sales (that is, Australia, Ethiopia, Kenya, and Iceland), the Panel also concluded that there
was a threat of displacement and impedance of EC exports in those third-country markets, within the

2145As is evident from this list, the European Comm unities did claim that the effect of the aeronautics
R&D subsidies was displacement and impedance of imports of Airbus LCA into the US market within the
meaning of Article 6.3(a) of the SCM Agreement. Although the Panel did not explicitly make a finding on this
allegation, it appears that the Panel considered that it had disposed of this claim in finding that, with respect to
the sales campaigns involving US airlines—Continenta l and Northwest Airlines—factors other than the
aeronautics R&D subsidies were responsible for Boei ng's success. (Panel Report, para. 7.1786 and
footnote 3725 thereto) In any even t, the European Union does not raise th e absence of a ruling with respect to
its Article 6.3(a) claim as an issue on appeal.
2146Panel Report, para. 7.1776.
2147Panel Report, footnote 3705 to para. 7.1776 (re ferring to European Communities' first written
submission to the Panel, para. 1342). This alternative claim was conditional upon the Panel disagreeing with the
European Communities' contention that the Panel should assess serious prejudice on the basis of orders rather
than deliveries.
2148Panel Report, para. 7.1786.
2149Panel Report, para. 7.1788. (original emphasis)
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meaning of Article 6.3(b) of the SCM Agreement.
2150 These findings were based on actual delivery
data (for the years up to and including 2006) and projected future deliveries (for the years 2007
onwards) for sales campaigns involving Qantas, Ethiopian Airlines, Kenya Airways, and
Icelandair.2151 Having considered these data, the Panel was satisfied that, " but for the effects of
certain of the aeronautics R&D subs idies, Airbus would have obtaine d additional orders for its A330
or Original A350 LCA from customers in third-c ountry markets in Australia, Ethiopia, Kenya, and
Iceland, and thus would not have suffered the threat of displacement or impedance of its exports from
third country markets within the meaning of Article 6.3(b) of the SCM Agreement".2152
1045. Finally, the Panel turned to the European Communities' allegations of significant price
suppression suffered by Airbus in the 200-300 seat LCA market. The Panel considered pricing
information and market share data with respect to the A330. The Panel accepted "the proposition that
with the launch of a technologically-advanced aircraft {that is, the 787}, the price of the competing,
older technology aircraft can be expected to decline (along with its residual values)." 2153 The Panel
was "satisfied that this is what happened to th e A330 when the 787 was launched in 2004", which
"left Airbus in a position in which it had to lower th e price of the A330 in order to try to mitigate its
loss of market share to the 787." 2154 The Panel noted that "demand for 200-300 seat wide-body LCA
fell in 2002 (largely due to the events of {the 11 September 2001 attacks on the World Trade Center}
and the SARS epidemic)"
2155 and saw "in the data submitted … an indication that price trends for the
A330 declined after 2004 and that, from its former pos ition as market leader in this product market, it
lost market share to Boeing." 2156 The Panel considered that the ma rket share figures "show the rather
dramatic erosion of Airbus' market share in the 2004 to 2006 period, compared with the 2000-2003
period", which "coincides with the introduction of the 787 in 2004." 2157 In conclusion, the Panel
noted that "{t}he evidence concerning the pricing tr ends for the A330, combined with the market
share data, are consistent with what we woul d expect to occur from the introduction of a
technologically-superior aircraft, offering operati ng cost advantages over older-technology aircraft,
for around the same price."2158

2150Panel Report, paras. 7.1790 and 7.1791.
2151Panel Report, para. 7.1790 (referring to "Airbus and Boeing LCA Deliveries and Projected
Deliveries in the Challenged Markets – Projected deliveries as of 31 December 2006" (Panel Exhibit EC-1173)).
2152Panel Report, para. 7.1791. (original emphasis)
2153Panel Report, para. 7.1781.
2154Panel Report, para. 7.1781.
2155Panel Report, para. 7.1782.
2156Panel Report, para. 7.1781.
2157Panel Report, para. 7.1785.
2158Panel Report, para. 7.1785.
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1046. The Panel also referred to BCI evidence su bmitted by the European Communities that
demonstrated that Airbus was able to secure sales by offering [ *** ] in order to offset
the technological advantages and opera ting cost savings offered by the 787.
2159 The Panel concluded
that the "evidence concerning the degree of price co ncessions that Airbus offered in order to secure
sales of its A330 and Original A350 indicates that a further effect of the aeronautics R&D subsidies
was significant price suppression with respect to the A330 and Original A350."2160
1047. The Panel referred to, but rejected, the European Communities' claims that a further effect of
the aeronautics R&D subsidies was significant price suppression of the A350XWB-800, on the
grounds that the European Communities had not pre sented evidence of price trends or actual pricing
for this Airbus model.2161
1048. On the basis of the evidence it had reviewed , the Panel found that "the aeronautics R&D
subsidies contributed in a genuine and substantia l way to Boeing's development of technologies for
the 787 and that, as a result, but for the effects of these subsidies":
- Airbus would have obtained add itional orders for its A330 and
Original A350 LCA from customers in third country markets
Australia, Ethiopia, Kenya and Iceland in 2005 and 2006, and the
European Communities would not have suffered the threat of
displacement or impedance of exports from third country markets
within the meaning of Article 6.3(b) of the SCM Agreement;
- Airbus would have made add itional sales of the A330 and
Original A350 over the same period, and to that extent Airbus
would not have suffered significant lost sales in the 200-300 seat
wide-body LCA product market, within the meaning of
Article 6.3(c) of the SCM Agreement; and
- prices of the A330 and the Original A350 in the 2004 to 2006
period would have been significantly higher, and to that extent,
Airbus would not have suffered significant price suppression in
the 200-300 seat wide-body LCA product market, within the
meaning of Article 6.3(c) of the SCM Agreement.
2162

2159Panel Report, para. 7.1792 (referring to Europ ean Communities' first written submission to the
Panel, para. 1393; and European Communities' second written submission to the Panel, Full HSBI Appendix,
para. 10).
2160Panel Report, para. 7.1792.
2161Panel Report, para. 7.1793.
2162Panel Report, para. 7.1794.
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1049. The Panel therefore concluded overall that:
… the effect of the aeronautics R&D subsidies is a threat of
displacement and impedance of European Communities' exports from
third country markets within the meaning of Article 6.3(b) of the
SCM Agreement, with respect to the 200-300 seat wide-body LCA
product market, and significant lost sales and significant price
suppression, within the meaning of Article 6.3(c) of the
SCM Agreement with respect to that product market, each of which
constitute serious prejudice to the interests of the
European Communities within the meaning of Article 5(c) of the
SCM Agreement.
2163
8. The United States' Appeal relating to the Second Stage of the Panel's
Analysis of the Technology Effects of the Aeronautics R&D Subsidies
1050. Before addressing the specific grounds of the United States' appeal, we note the pertinent
provisions of the SCM Agreement, that is, Articles 5(c) and 6.3(b) and (c), which provide, in relevant
part:
5. No Member should cause, through the use of any subsidy
referred to in paragraphs 1 and 2 of Article 1, adverse effects to the
interests of other Members, i.e.:

(c) serious prejudice to the interests of another Member.
(footnote omitted)
6.3 Serious prejudice in the sense of paragraph (c) of Article 5
may arise in any case where one or several of the following apply:
…
(b) the effect of the subsidy is to displace or impede the exports
of a like product of another Member from a third country market;
(c) the effect of the subsidy is a significant price undercutting by
the subsidized product as compared with the price of a like product of
another Member in the same market or significant price suppression,
price depression or lost sales in the same market{.}

2163Panel Report, paras. 7.1797; see also paras. 7.1854(a) and 8.3(a)(i).
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(a) Significant lost sales
1051. We begin with the United States' challenge to the Panel's finding that the effect of the
aeronautics R&D subsidies was significant lost sal es to Airbus in the same market, within the
meaning of Article 6.3(c) of the SCM Agreement.
1052. The Appellate Body has defined a "lost sale" as one that a supplier "failed to obtain".
2164 The
Appellate Body has understood that concept as "rela tional", entailing consideration of "the behaviour
of both the subsidized firm(s), which must have won the sales, and the competing firm(s), which
allegedly lost the sales", due to the effect of the subsidy. 2165 Sales can be lost "in the same market",
within the meaning of Article 6.3(c), only if the subsidized product and the like product compete in
the same product market. With respect to the meani ng of "significant", the Appellate Body has noted
that this term means "importa nt, notable or consequential" 2166, and has both quantitative and
qualitative dimensions.2167
1053. In this dispute, the European Communiti es relied on evidence from ten sales campaigns 2168
to substantiate its claims of significant lost sales. This evidence was discussed in the
European Communities' first written submission to the Panel, and the details of the relevant
campaigns within the 200-300 seat LCA market were se t out in an HSBI Annex to that submission
—Annex D. According to the European Communities, customers chose the 787 due to some or all of
the following subsidy-induced characteristics: its technological innovation; early availability; and
low prices.2169 The United States responded that reasons ot her than the R&D subsidies explained the
failure of Airbus to secure sales in the rele vant sales campaigns. For instance, although the
United States agreed that the A330 and Original A350 lost sales to the 787 because of the latter's
advanced technological features, it argued that these features were not the result of the subsidies, but
were the product of work and invest ment by Boeing and its suppliers. 2170 The United States agreed
that the Original A350 lost sales because of the earlie r availability of the 787; however, it attributed
that fact, not to the aeronautics R&D subsidies, but to the different strategies employed by Airbus and

2164Appellate Body Report, EC and certain member States – Large Civil Aircraft, para. 1214.
2165Appellate Body Report, EC and certain member States – Large Civil Aircraft, para. 1214.
2166Appellate Body Report, US – Upland Cotton , para. 426 (referring to Panel Report, US – Upland
Cotton, para. 7.1326).
2167Appellate Body Report, EC and certain member States – Large Civil Aircraft, para. 1218.
2168See Panel Report, footnote 3724 to para. 7.1786. The sales campaigns relied on by the
European Communities were: All Nippon Airways (2004) ; Japan Airlines (2004); Continental Airlines
(2004-2006); Icelandair (2005); Northwest (2005); Air Canada (2005); Qantas (2005); Kenya Airways
(2006); Ethiopian Airlines (2005); and Royal Air Maroc (2005).
2169European Communities' first written submission to the Panel, Annex D (BCI version), paras. 5-77.
2170United States' first written submission to the Panel, para. 997.
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Boeing.
2171 Finally, the United States referred to sal es campaign evidence submitted as an HSBI
Annex to its first written submission, which it alleged proved that the European Communities'
arguments were unfounded and demonstrated that cu stomers chose the 787 for reasons other than its
low price.2172
1054. The Panel agreed with the European Communitie s that in four of the 10 sales campaigns
referred to by the European Communities—that is, the sales campaigns involving Qantas (2005),
Ethiopian Airlines (2005), Icelandair (2005), and Kenya Airways (2006)—the effect of the
aeronautics R&D subsidies was significant lost sales in the same market, within the meaning of
Article 6.3(c) of the SCM Agreement. In the Panel's view, the "performance characteristics of the 787,
and/or its scheduled entry into service in 2008" were "decisive factors" in Boeing's ability to secure
these sales.2173 By contrast, for the other six sales ca mpaigns—that is, those involving All Nippon
Airways (2004), Japan Airlines (2004), Continental Airlines (2004-2006), Northwest (2005),
Air Canada (2005), and Royal Air Maroc (2005)— the Panel did not find the aeronautics R&D
subsidies to be the cause of the lost sales, citing factors "other than the performance characteristics of
the 787 over the A330 or Original A350, and the 2008 delivery date for the 787" that played a
"significant part" in the loss of these particular sales to Boeing. 2174 These other factors included
Boeing's relationship with the airline in question; the particular routes to be serviced and range of
aircraft; the effect of the competition between the A340 and Boeing's 777 and the airline's preference
for a mixed fleet; and Airbus' failure to submit a formal offer.2175
1055. In the course of its brief analysis, the Panel discussed the Qantas sale, which involved an
order of 45 Boeing 787s, plus 20 options and a further 50 purchase rights. The Panel noted the
"extremely competitive" nature of that sale, and c oncluded, based on the size of the order and various
factors that singled out that campaign as being of strategic importance to Boeing and Airbus, that
Airbus' loss of this sale alone was "significant".
2176 The Panel was therefore satisfied that, but for the
effect of the subsidies, Airbus would have made additional sales of the Original A350 and would not
have suffered significant lost sales within the meaning of Article 6.3(c).

2171United States' first written submission to the Panel, para. 998.
2172United States' first written submission to the Pane l, para. 999, referring to US Campaign Annex
(HSBI).
2173Panel Report, para. 7.1786. The Panel also referred to evidence that, for customers, the "extremely
low pricing offered by Boeing" informed their choice of the 787. (Ibid.)
2174Panel Report, para. 7.1786.
2175Panel Report, footnote 3725 to para. 7.1786.
2176Panel Report, para. 7.1788.
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(i) Whether the Panel erred by "double-counting" each 787 sale
as two lost sales for Airbus
1056. The United States asserts that the Panel's finding of significant lost sales is in error because it
implies that sales of both the A330 and the Original A350 were lost in the Qantas, Ethiopia Airlines,
Icelandair, and Kenya Airways sales campaigns. The United States argues that the Panel "double
counted" lost sales when it treated each sale won by the 787 as two lost sales—namely, one for the
Original A350 and one for the A330—even though no customer intended to buy both airplanes and
Airbus could only lose each sale once.
2177 The United States contends that, for the lost sales found by
the Panel, Airbus either made no bid at all, rem oved the A330 from consideration in favour of the
Original A350, or offered only the Original A350 against the 787. 2178 Therefore, the Panel's finding
that Airbus lost sales for the A330 does not meet the requirements of Article 6.3(c) of the
SCM Agreement and, in the United States' view, must be reversed. Since the finding of a threat of
displacement and impedance of the A330 is based "exclusively" on the "invalid" lost sales finding, the
United States asserts that it must also be reversed.2179
1057. The European Union responds that it had never alleged before the Panel that a single sales
campaign in which Airbus offered the A330 and Or iginal A350 should count as two sales. Moreover,
the Panel's finding only reflects that, in several of the sale campaigns, Airbus offered a mix of A330s
and Original A350s, and, hence, lost sales of both these aircraft.2180
1058. Through this argument on appeal, the United St ates raises an issue of how properly to
construe the Panel's finding of lost sales. We not e that, in arguing that the Panel "double-counted"
lost sales, the United States appears to focus on the Panel's statement at the end of its analysis that, but
for the effects of the R&D subsidies, Airbus "would have made additional sales of the A330 and
Original A350 over the same period, and to that ex tent, would not have suffered significant lost sales
in the 200-300 seat wide-body LCA product market, w ithin the meaning of Article 6.3(c) of the
SCM Agreement".2181
1059. That finding must, however, be read together with the prior reasoning contained in the body
of the Panel's analysis. The Panel began its cons ideration of the European Communities' claims of
lost sales by discussing the evidence fro m the sales campaigns presented by the
European Communities. The Panel found that the evidence regarding specific sales campaigns that

2177United States' other appellant's submission, para. 279.
2178United States' other appellant's submission, para. 283.
2179United States' other appellant's submission, para. 281.
2180European Union's appellee's submission, paras. 443 and 444.
2181Panel Report, para. 7.1794. (emphasis added)
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occurred in the 200-300 seat LCA market betwee n 2004 and 2006 demonstr ated that customers
decided to purchase Boeing's 787 either because th ey "perceived that Airbus' A330 family and
Original A350 family LCA were not as capable as Boeing's 787 family LCA in fulfilling {their}
technical or delivery schedule requirements"; or because they "considered Airbus' A330 family and
Original A350 family LCA to be capable of meeting {their} technical and delivery schedule
requirements, but {were} 'swayed by the extremely low pricing offered by Boeing'."
2182 The Panel
concluded that, in the specific sales campaigns invo lving Qantas, Ethiopian Airlines, Icelandair, and
Kenya Airways, sales were lost to the 787 due to the "advanced technological features of the 787, the
availability of which at that time was a ccelerated by the aeronautics R&D subsidies".
2183 The Panel
then proceeded to discuss in fu rther detail the sales campaign involving Qantas and, at the close of
that discussion, found that the evidence before it supported a conclusion that, but for the subsidies,
Airbus would have made additional sales of the Original A350. 2184 The Panel neither stated nor
implied that it considered that two sales had been lost by Airbus for each 787 ordered.
1060. We understand the reasoning of the Panel to be contained in its explanation that customers
chose the 787 because of their perception that it was more technologically advanced than either the
A330 or the Original A350, as well as on account of its low price. We know from the evidence
presented to the Panel, and referred to by the Unit ed States, that, in at least one sales campaign,
Airbus did not offer either of these two aircraft 2185 and, in another, both the A330 and Original A350
were offered.2186 Since the Panel found that customers considered the 787 to be the more advanced
aircraft, it appears that, for at least two sales camp aigns, the customers either considered neither the
A330 nor the Original A350, or considered both the A330 and the Original A350, but rejected them in
favour of the 787.
1061. We also note that, in concluding that there was a threat of displacement and impedance, the
Panel explicitly stated that, but for the aeronau tics R&D subsidies, "Airbus would have obtained
additional orders for its A330 or Original A350" from customers in third-country markets in
Australia, Ethiopia, Kenya, and Iceland.2187 The Panel's threat of displacement and impedance finding
was a consequence of its lost sales finding and was based on the same sales campaigns that Boeing

2182Panel Report, para. 7.1786.
2183Panel Report, para. 7.1787.
2184Panel Report, para. 7.1788.
2185United States' other appellant's submission, para. 283.
2186The participants appear to accept that, with respect to at least one sales campaign, Airbus initially
offered both the A330 and the Original A350. Although the United States argues that "Airbus … removed the
A330 from consideration in favour of the Original A350" in that specific sales campaign, there is no evidence of
such withdrawal and the Panel made no finding in this regard. (United States' other appellant's submission,
para. 283) The European Union argues that, in a number of sales campaigns, Airbus offered the airline
customer a mix of A330s and Original A350s. (European Union's appellee's submission, para. 444)
2187Panel Report, para. 7.1791. (emphasis added)
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won and Airbus lost. Thus, the Panel's use of "or", rather than "and", in its finding regarding a threat
of displacement and impedance suggests to us th at, far from "double-counting" lost sales for each
specific campaign, the Panel treated each lost sale to Boeing as being a loss of either the A330 or the
Original A350.
2188
1062. Finally, we also note that the Panel's u ltimate finding of significant lost sales, in
paragraphs 7.1797 and 8.3(a)(i) of the Panel Report, is, in any event, made with respect to the
200-300 seat LCA market generally, rather than with respect to either or both specific Airbus LCA
models.2189
1063. For the above reasons, we do not read the Pane l's finding as suggesting that for each sale of
the 787 gained by Boeing, two were lost by Airbus. Nor do we consider that the Panel's finding of
significant lost sales in the same market is justifie d only with respect to the Original A350, and not
the A330. Accordingly, we reject the United States' request for reversal of the Panel's finding of lost
sales of the A330 because of "double-counting". For that same reason, we also reject the
United States' request for consequential reversal of the Panel's finding of a threat of displacement and
impedance with respect to the A330.
(ii) Whether the Panel erred by failing properly to consider
other factors
1064. Second, the United States argues that, in concl uding that the Ethiopian Airlines, Icelandair,
and Kenya Airways sales campaigns resulted in lost sales for the A330 and Original A350, the Panel
failed to take into account "customer-specific s ituations" showing that Boeing's victory in these
campaigns was not the effect of the aeronautics R&D subsidies. 2190 These "customer-specific
situations" include "'Boeing's relationship with th e airline (Continental Airlines, All Nippon Airways,
Japan Airlines)' and Airbus' 'failure to submit a fo rmal offer within the time limit specified by the
airline (Royal Air Maroc)'". 2191 The United States highlights that the Panel recognized that such
factors could be critical when it rejected allegations of lost sales in these other sales campaigns on the

2188We recall the European Union's assertion that it ha d never presented arguments that two sales were
lost to Airbus for each sale of the Boeing 787. (Supra, para. 1057)
2189The Panel found that:
… the effect of the aeronautics R&D subsidies is … significant lost sales …
within the meaning of Article 6.3(c) of the SCM Agreement with respect to
{the 200-300 seat LCA} market, … which constitute{s} serious prejudice to
the interests of the European Communities within the meaning of
Article 5(c) of the SCM Agreement.
(Panel Report, para. 7.1797)
2190United States' other appellant's submission, para. 286.
2191United States' other appellant's submission, para. 286 (quoting Panel Report, footnote 3725 to
para. 7.1786).
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basis that these factors, rather th an the aeronautics R&D subsidies, explained the customer's choice.
Yet the Panel neglected to consider similar factor s for the campaigns involving Ethiopian Airlines,
Icelandair, and Kenya Airways. Accordingly, argue s the United States, the Panel's lost sales finding
under Article 6.3(c) of the SCM Agreement is in error.
2192 Moreover, since the Panel's finding of lost
sales formed the "sole" basis for the Panel's conclu sion that there was a threat of displacement and
impedance, the United States requests the Appellate Body to reverse the threat of displacement and
impedance finding of the Panel.2193
1065. In response, the European Union asserts that the Panel considered, and properly rejected,
relevant other factors. The European Union explai ns that the Panel could not explain its finding in
more detail due to the HSBI nature of the sales campaign evidence. Moreover, the European Union
posits that the arguments of the United States implicate the Panel's weighing of evidence and should
have been raised under Article 11 of the DSU.2194
1066. We begin with the United States' argument th at the Panel failed to ascribe sufficient
importance to Boeing's pre-existing customer rela tionships in its treatment of the Icelandair,
Kenya Airways, and Ethiopian Airlines sales campaigns as compared with its treatment of that same
factor with respect to the sales campaigns involv ing Continental Airlines, All Nippon Airways, and
Japan Airlines. The evidence on the Panel record suggests that, as with Continental Airlines,
All Nippon Airways, and Japan Airlines, three of the airlines for which the Panel concluded there
were lost sales—namely Ethiopian Airlines, Icel andair, and Kenya Airways—also had all-Boeing or
predominantly Boeing fleets.
2195 We have no reason to doubt that the Panel assessed this factor in
considering these sales campaigns, and weighed it differently in considering the sales campaigns
involving Continental Airlines, All Nippon Airways, and Japan Airlines. Yet the reason for this
difference in treatment is not evident from the Panel's reasoning.
2196 We have concerns about the
scarcity of the Panel's analysis. However, the claims brought by the United States can only be
properly dealt with if brought under Article 11 of the DSU 2197 since they challenge the objectivity of
the Panel's assessment of the facts and seek to have us attribute a different weight to a specific factor

2192United States' other appellant's submission, para. 286.
2193United States' other appellant's submission, para. 294.
2194European Union's appellee's submission, paras. 446 and 447.
2195In this respect, we observe that, before the Panel, the United States noted that the following airlines,
including those referred to here on appeal, either had all-Boeing LCA fleets or operated only Boeing 767s as
their mid-size LCA. (United States' other appellant's submission, para. 288 (referring to United States' first
written submission to the Panel, Full HSBI Appendix, footnote 2 to para. 10))
2196The European Union's counterargumen t that the evidence that was before the Panel is HSBI in
nature is not entirely convincing, given that the Panel wa s able to articulate reasons for the Qantas sales, even
though the evidence from that campaign was also HSBI-designated. (See Panel Report, para. 7.1788)
2197See, for example, Appellate Body Report, US – Upland Cotton (Article 21.5 – Brazil) , paras. 292,
293 and footnote 618 thereto, 294, and 295.
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than did the Panel. In the absen ce of such a claim, we see no basi s to interfere with the Panel's
exercise of its fact-finding authority solely on the ground that it came to different conclusions in
circumstances where the facts surrounding these campaigns illustra ted that they shared one
characteristic with other campaigns for which the Panel did not find lost sales.
1067. The United States also argues that the Icelanda ir sales campaign shared features with the
Royal Air Maroc sales campaign for which the Panel rejected the European Communities' claim of
lost sales because of Airbus' "failure to submit a fo rmal offer within the time limit specified" by that
airline.
2198 According to the United States, the situation arising in the Icelandair sales campaign is as
compelling a reason to find that no causal link exists as a late bid. 2199 For the same reasons given
above, we do not entertain this claim of the United States in the absence of a claim under Article 11 of
the DSU.
1068. In the light of the above, and even accepting that the Panel could have provided a fuller
explanation as to how the evidence from the three sales campaigns supports a finding of significant
lost sales in the same market, we are not persuaded that the Panel erred in applying Article 6.3(c) of
the SCM Agreement in its consideration of the sales campaigns involving Ethiopian Airlines,
Icelandair, and Kenya Airways, and therefore reject the United States' request for reversal of the lost
sales finding. For that same reason, we reject the United States' request for reversal of the Panel's
consequential finding of a threat of displacement and impedance.
(b) Threat of displacement and impedance
1069. In addition to its requests for consequential reve rsal (deriving from the alleged flaws in the
finding of lost sales) of the Panel's finding that the aeronautics R&D subsidies caused a threat of
displacement and impedance of exports of Airbus ai rcraft in the "third-country markets" of Ethiopia,
Kenya, and Iceland, the United States al so independently appeals that finding. 2200 The United States
alleges that the Panel failed to establish that Ethi opia, Kenya, and Iceland constitute "third-country
markets" within the meaning of Article 6.3(b) 2201, and that this failure constitutes legal error because,
as the Appellate Body has previously found, panels considering a claim of displacement or impedance
have an "obligation to assess the re levant market" under Article 6.3(b). 2202 M o r e o v e r , t h e

2198United States' other appellant's submission, para. 289 (quoting Panel Report, footnote 3725 to
para. 7.1786).
2199United States' other appellant's submission, para. 289.
2200We note that the United States has not appealed the Panel's finding of a threat of displacement and
impedance of the European Union's exports in Australia.
2201United States' other appellant's submission, para. 295.
2202United States' appellee's submission, para. 295 (quoting Appellate Body Report, EC and certain
member States – Large Civil Aircraft, para. 1131).
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United States asserts that the Panel's threat of displacement and impedance finding for those countries
contradicts its legal finding elsewhere that treating a single sales campaign as a "market" nullifies the
meaning of that term.
2203 The United States also argues that the low volume of orders involved in the
sales campaigns involving Ethiopia, Iceland, and Kenya demonstrates that there was no "trend" of
Airbus exports being threatened with displacement and impedance.2204
1070. The European Union supports the Panel's finding that it did not need to "consider whether the
European Communities ha{d} established th e existence of such country markets" 2205 because, in this
dispute, both parties accepted that the relevant product market was 200-300 seat LCA market, and the
relevant geographic markets of Ethiopia, Kenya, and Iceland were "indisputable".2206 Moreover, even
if the Panel were under an obligation to make find ings on the extent of the market within a third
country, the European Union maintains that the Pa nel was still correct since the unappealed finding
that there was a world market for 200-300 seat LC A means there could not be multiple geographic
markets within each country.2207
1071. Before addressing the specific arguments on appeal , we recall the meaning of the concepts of
displacement and impedance as previously stated by the Appellate Body. In EC and certain member
States – Large Civil Aircraft, the Appellate Body explained that "displacement" refers to an economic
mechanism in which exports of a like product are replaced by the sales of the subsidized product. 2208
Specifically, it found that "displacement" connotes that there is "a substitution effect between the
subsidized product and the like product of the complaining Member" and, in the context of
Article 6.3(b), "displacement arises where exports of the like product of the complaining Member are
substituted in a third country market by exports of the subsidized product." 2209 The existence of
displacement depends upon there being a competitiv e relationship between these two sets of products
in that market and, when this is the case, certa in behaviour such as "{a}ggressive pricing" may "lead
to displacement of exports … in {that} particular market". 2210 An analysis of displacement should
assess whether this phenomenon is discernible by examin ing trends in data relating to export volumes
and market shares over an appropriately representative period. 2211 With respect to "impedance", the
Appellate Body expressed the view that this concep t may involve a broader range of situations than

2203United States' other appellant's submission, para. 295 (referring to Panel Report, para. 7.1675).
2204See United States' appellee's submission, paras. 299-301.
2205Panel Report, para. 7.1674.
2206European Union's appellee's submission, para. 464.
2207European Union's appellee's submission, para. 465.
2208Appellate Body Report, EC and certain member States – Large Civil Aircraft, para. 1119.
2209Appellate Body Report, EC and certain member States – Large Civil Aircraft, para. 1160.
2210Appellate Body Report, EC and certain member States – Large Civil Aircraft, para. 1119.
2211See Appellate Body Report, EC and certain member States – Large Civil Aircraft , paras. 1165,
1166, and 1170.
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displacement and arises both in "situations where th e exports or imports of the like product of the
complaining Member would have expanded had they not been 'obstructed' or 'hindered' by the
subsidized product", as well as when such exports or imports "did not materialize at all because
production was held back by the subsidized product".
2212 While there may be some overlap between
the concepts, "displacement" and "impedance" are therefore not interchangeable concepts.
1072. In this dispute, the Panel's finding of a thr eat of displacement and impedance was based on
delivery data for the four countries where the sales campaigns on which its lost sales finding was
based took place. 2213 The Panel had found earlier in its analysis that the existence of the serious
prejudice phenomena of displacement and impedance of imports or exports could only be definitely
established by relevant delivery data , and that orders for LCA represent, by and large, deliveries that
will occur some years subsequently. 2214 For the Panel, evidence concerning orders obtained in
2004-2006 was capable of showing that future imports or exports would be displaced or impeded and,
therefore, of establishing the existence of a threat of serious prejudice.2215
1073. The evidence on which the Panel relied for its finding of a threat of displacement and
impedance in the 200-300 seat LCA market included actual delivery data (up to and including 2006)
and projected future deliveries (for 2007 onwar ds), which were based on actual order data. 2216 The
Panel explained that, given the delay between the order of aircraft and their delivery, the impact of the
aeronautics R&D subsidies would not be reflected in delivery data until the 787 was delivered some
years after 2006.2217

2212Appellate Body Report, EC and certain member States – Large Civil Aircraft , para. 1161. The
Appellate Body noted that it was not required to consider the meaning of impedance in that appeal.
Nevertheless, the Appellate Body considered that this co ncept, which is found within the same provision of the
SCM Agreement, serves as relevant context for "a better understanding of displacement". (Ibid.)
2213Having concluded that the orders obtained by Boeing in the Qantas, Icelandair, Kenya Airways, and
Ethiopian Airlines sales campaigns demonstrated significant lost sales, the Panel noted the
European Communities' argument that, to the extent that it had identified orders as the cause of displacement or
impedance, but such orders had not yet resulted in deliveries, those orders constituted evidence of a threat of
displacement and impedance. (Panel Report, para. 7. 1789 (referring to European Communities' first written
submission to the Panel, paras. 1455-1458, 1466-1468, 1552-1555, 1562, 1640-1643, 1650, and 1651; and
European Communities' oral statement at the first Panel meeting (BCI), para. 90))
2214The Panel's focus on evidence of future deliveries of aircraft was consistent with an earlier finding
that, for purposes of its displ acement and impedance findings under Article 6.3(a) and (b) of the
SCM Agreement, the reference to "imports" and "exports" in th ese provisions suggested that these forms of
serious prejudice could arise only on delivery of the aircraft to customers. (See Panel Report, para. 7.1685)
2215Panel Report, para. 7.1686. Although the word "threat" is not expressly included in the text of
Article 6.3(b), the Appellate Body in EC and certain member States – Large Civil Aircraft explained that a
finding under that provision could include situations in which displacement was only threatened. (Appellate
Body Report, EC and certain member States – Large Civil Aircraft, para. 1171)
2216Panel Report, para. 7.1790 (referring to "Airbus and Boeing LCA Deliveries and Projected
Deliveries in the Challenged Markets – Projected deliveries as of 31 December 2006" (Panel Exhibit EC-1173)).
2217Panel Report, para. 7.1791.
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Table 5. Actual and projected future deliveries of Airbus and Boeing LCA
 Airbus Boeing
Australia
2002 2 100% -- --
2003 4 100% -- --
2004 5 100% -- --
2005 3 100% -- --
2006 1 100% -- --
2007 4 100% -- --
2008 4 50% 4 50%
2009 3 27% 8 73%
2010 1 10% 9 90%
2011 -- -- 7 100%
2012 -- -- 14 100%
2013 -- -- 3 100%
Ethiopia
2003 -- -- 1 100%
2004 -- -- 1 100%
2005 -- -- 1 100%
2006 -- -- -- --
2008 -- -- 1 100%
2009 -- -- 1 100%
2010 -- -- 3 100%
2011 -- -- 2 100%
2012 -- -- 3 100%
Kenya
2001 -- -- 3 100%
2010 -- -- 2 100%
2011 -- -- 4 100%
2012 -- -- 3 100%
Iceland 2010 -- -- 2 100%
2012 -- -- 2 100%
Source: Panel Report, Table at para. 7.1790; Panel Exhibit EC-1173, Figure 1.

1074. Having set out the above table, the Panel considered it "clear" that, after 2006, the
European Communities would "suffer serious prejudice in the form of displacement and impedance of
its exports from these third country markets".2218
1075. The first argument of the United States in this part of its appeal concerns the proper meaning
to be attributed to the term "market" in Article 6.3(b) of the SCM Agreement. That provision requires
a demonstration that the effect of the subsidy is to "displace or impede" the exports of a like product
of another Member from a "third country market".
1076. In EC and certain member States – Large Civil Aircraft , the Appellate Body clarified that a
"market", within the meaning of Article 6.3(a) and (b) of the SCM Agreement, is a particular set of
products that are in actual or potential competition with each other within a particular geographical
area. An assessment of the competitive relationshi p between products in the market is required in

2218Panel Report, para. 7.1791.
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order to determine "whether and to what extent one product may displace another".
2219 There is "both
a geographic and product market compone nt to the assessment of displacement" 2220 and, by
implication, impedance.2221 In principle, the manner in which the geographic dimension of a market
is determined will depend on a number of factors: in some cases, the geographic market may extend
to cover the entire country concerned; in others, an analysis of the conditions of competition for sales
of the product in question may provide an appr opriate foundation for a finding that a geographic
market exists within that area, for example, a region. Th ere may also be cases where the geographic
dimension of a particular market exceeds na tional boundaries or could be the world market. 2222 A
plain reading of Article 6.3(b), however, reveals that a finding of displacement or impedance under
that provision is to be limited to the territory of th e third country at issue. Accordingly, findings of
displacement and impedance are to be made only w ith respect to the territory of the third country
involved, even though, from an economic perspectiv e, the geographic market may not be national in
scope. Thus, the Appellate Body explained that, even in cases where the geographic dimension of a
particular market exceeds national boundaries or is worldwide, a panel faced with a claim under
Article 6.3(b) should "focus the analysis of di splacement and impedance on the territory of the …
third countries involved."2223
1077. In this dispute, the Panel found that the LC A market is a global market geographically and
that competition in each of the three LCA produc t markets that it had identified takes place on a
worldwide basis.2224 The Panel also recognized that Articl e 6.3(b) expressly requires the examination
of displacement and impedance on the basis of "a th ird country market". Thus, the Panel considered
that, in assessing the European Co mmunities' claim of displacement and impedance, it was "not
required to consider whether the European Commu nities ha{d} established the existence of such
country markets". 2225 Rather, the Panel considered the i ssue before it as being whether, "based on
evidence of sales occurring in those countries, {it was} satisfied that there ha{d} been displacement
and impedance … in the particular country market." 2226

2219Appellate Body Report, EC and certain member States – Large Civil Aircraft, para. 1119.
2220Appellate Body Report, EC and certain member States – Large Civil Aircraft, para. 1168.
2221Appellate Body Report, EC and certain member States – Large Civil Aircraft , footnote 2466 to
para. 1119.
2222Appellate Body Report, EC and certain member States – Large Civil Aircraft , para. 1117. Where
the geographic dimension of the market is smaller in scop e than the entire territory of the third-country Member
concerned, the wording of Article 6.3(b) suggests that a panel will nonetheless have to ensure that any finding
reached relates to that territory as a whole, and explain why this is so.
2223Appellate Body Report, EC and certain member States – Large Civil Aircraft, para. 1117.
2224Panel Report, paras. 7.1671 and 7.1674.
2225Panel Report, para. 7.1674.
2226Panel Report, para. 7.1674.
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1078. We see no error in this approach of the Panel. As we have noted, the Panel found that
competition between Boeing and Airbus for sales in the 200-300 seat LCA market takes place on a
global basis. Both parties accepted the Panel's identification of the 200-300 seat LCA market and did
not dispute that it is a global market.
2227 The United States did not suggest to the Panel, and has not
argued before us, that Kenya, Iceland, and Ethiopi a do not form part of such a global market, or
pointed to any reason why the conditions of compe tition within the territory of any of these Members
would differ from the conditions of competition on the worldwide market. The sales campaign
evidence relied upon by the European Communities to support its claim related to, inter alia, sales in
Ethiopia, Iceland, and Kenya, and both Boeing an d Airbus competed in these sales campaigns. The
Panel was clearly aware that Article 6.3(b) requir es an analysis of displacement and impedance to
focus on a particular country market and deemed it unnecessary to establish separately the existence
of a third-country market. Such an appro ach accords with Article 6.3(b) and with the
Appellate Body's understanding of that provision as set out in EC and certain member States – Large
Civil Aircraft. For these reasons, we do not accept the conten tion of the United States that, in its
analysis of displacement and impedance, the Pane l erred in assuming the existence of third-country
markets, and failed to establish that they existed.
1079. We also reject the argument of the United States that, by relying on individual sales
campaigns for its displacement and impedance finding with respect to Ethiopia, Kenya, and Iceland,
the Panel contradicted its own legal conclusion that treating a single sales campaign as a "market"
nullifies the meaning of that term. 2228 This argument by the United States appears to us to
misconstrue the Panel's finding and to conflate distinct issues. While it is true that the Panel declined
to accept an argument by the European Communiti es that a single LCA sales campaign could be
considered a relevant market, in doing so it was considering the definition of "market" under
Article 6.3(c), and not under Article 6.3(b), of the SCM Agreement. Under Article 6.3(b), the Panel
was required to focus its analysis on sales occurring w ithin the territory of each relevant third-country
Member, irrespective of how many sales campaigns took place in that territory during the reference
period.

2227Panel Report, paras. 7.1670 and 7.1671.
2228See Panel Report, para. 7.1675.
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1080. A second argument by the United States relates to the evidentiary basis for the Panel's finding
of a threat of displacement and impedance in Et hiopia, Kenya, and Iceland. The United States
contends that the volume of orders involved in these third-country market campaigns was too low to
be capable of demonstrating a threat of displaceme nt and impedance, and that there were insufficient
"trends" of Airbus exports.
2229
1081. We begin with the Panel's finding of displace ment. We recall the guidance provided by the
Appellate Body in EC and certain member States – Large Civil Aircraft as to the meaning of
"displacement" in Article 6.3(a) and (b). Referring to Article 6.4 of the SCM Agreement, which
provides, inter alia, that, for purposes of Article 6.3(a) and (b), changes in relative market shares shall
be demonstrated "over an appropriately representativ e period sufficient to demonstrate clear trends in
the development of the market for the product concer ned", the Appellate Body considered that this
suggests that the effect of a subsidy must be examin ed "'over a sufficiently long period of time and is
not limited to the year in which it was paid' b ecause consideration of developments over a longer
period 'provides a more robust basis for a serious prejudice evaluation'." 2230 The Appellate Body also
noted that a panel assessing a claim of displacement would have to look at whether trends are
discernible.2231 The Appellate Body explained that the iden tification of a trend will be more accurate
the larger the data set used in the analysis.2232
1082. The Appellate Body's analysis in EC and certain member States – Large Civil Aircraft
suggests that the following characteristics will normally be necessary before a panel can reach a
finding of displacement under Article 6.3(b): first, that at least a portion of the market share of the
exports of the like product of the complaining Memb er must have been taken over or substituted by

2229See United States' appellee's submission, paras. 299-301.
2230Appellate Body Report, EC and certain member States – Large Civil Aircraft , para. 1166 (quoting
Appellate Body Report, US – Upland Cotton, para. 478).
2231Appellate Body Report, EC and certain member States – Large Civil Aircraft, para. 1166.
2232Appellate Body Report, EC and certain member States – Large Civil Aircraft, para. 1167.
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the subsidized product; and second, it must be possible to discern trends in volume and market
share.
2233
1083. Although the Panel engaged in no analysis of the data before it, when we consider the data for
the four markets for which the Panel found a threat of displacement, we find evidence of Boeing
taking over Airbus' market share only in Australia. The data relied on by the Panel for Australia
demonstrate that, after 2006, Boeing progressed from having no deliveries in Australia to having 50%
of deliveries by 2008, and 100% of deliveries by 201 1, thus supplanting Airbus in Australia. Airbus'
market share progressively declined from 2002 to 2010 , with deliveries projected to cease in 2011.
The Panel's analysis of the Qantas sales campaign, of the Australian market, and its finding of a threat
of displacement and impedance in Australia have not been appealed by the United States.
1084. The data further show that, in the other three third-country markets at issue, Boeing was the
sole supplier in all years for which data was provided. In contrast to Australia, there is no evidence
that Airbus made or was projected to make deliver ies in any of these third-country markets prior to,
during, or after the reference period. This mean s that there was no taking over or substituting by
Boeing of Airbus' market share for 200-300 seat LCA in those third-country markets. Rather, while
the number of deliveries fluctuated, Boeing held 100% of the market share in every year considered
by the Panel. On this basis alone, we cannot sustain the Panel's finding of a threat of displacement in
these third-country markets.
1085. In its discussion of displacement and impedance, the Panel did not distinguish between these
concepts, even though the Appellate Body in EC and certain member States – Large Civil Aircraft
stated that the principle of effective treaty interp retation suggests that there is a distinction between

2233The Appellate Body in EC and certain member States – Large Civil Aircraft reasoned that:
... displacement arises under Article 6.3(a) of the SCM Agreement where
imports of a like product of the comp laining Member are declining in the
market of the subsidizing Member, and are being substituted by the
subsidized product. Similarly, unde r Article 6.3(b), displacement arises
where exports from the like product of the complaining Member are
declining in the third country market concerned, and are being substituted
by exports of the subsidized product. As noted above, displacement must be
discernible. The identification of di splacement under this approach should
focus on trends in the markets, looking at both volumes and market shares.
The trend has to be clearly identifiabl e and an assessment based on a static
comparison of the situation of the subsidized product and the like product at
the beginning and at the end of the reference period would be inadequate.
(Appellate Body Report, EC and certain member States – Large Civil Aircraft , para. 1170) In that dispute, the
Appellate Body explained how it would apply the test of displacement and stated that there could be no
displacement either where sale s of Boeing aircraft (the competitor of th e subsidized product in that dispute)
increased during the reference period in a particular product market, where Boeing made no sales in a product
market throughout the reference period, or where Boeing was the sole supplier in a product market. ( Ibid.,
para. 1179)
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them.
2234 We also observe that, when making findings, the Panel always referred to both
displacement and impedance. For this reason, we wi ll proceed on the basis th at the Panel meant that,
in each of the countries it considered, there was a threat of both displacement and impedance. We
therefore proceed to consider the Panel's finding of a threat of impedance.
1086. As we have noted above, in EC and certain member States – Large Civil Aircraft , the
Appellate Body explained that impedance refers to a situation where the exports or imports of the like
product of the complaining Member would have expa nded more had they not been "obstructed" or
"hindered" by the subsidized product, or wher e exports or imports of the like product did not
materialize at all becaus e production was "held back" by the subsidized product. 2235 We observe that
Article 6.4 of the SCM Agreement, which applies to both phenomena re ferred to in Article 6.3(a)
and (b), requires that, as with displacement, a findi ng of impedance should be supported by evidence
of changes in the relative market share in favour of the subsidized product, over a sufficiently
representative period, to demonstrate "clear trends " in the development of the market concerned.
Since, unlike with displacement, however, impeda nce may not be a visible phenomenon, evidence of
trends may not be dispositive, or may hold less probative value, for a finding of impedance.
1087. In this dispute, the Panel considered that th ere was evidence of a threat of impedance in
Ethiopia, Kenya, and Iceland on the basis of th e data provided in Table 5 above. Although no
supporting reasons were provided, the Panel's findi ng appears to have followed from its perception
that the data concerning actual and projected deliv eries of Boeing LCA were sufficient to supply a
basis for that finding. We observe, however, that , in each of these third-country markets, Boeing's
market share remained at 100% over all the periods considered by the Panel, even though the number
of annual deliveries fluctuated. The data for I celand cover only the years 2010 and 2011, and Boeing
deliveries remained stable at two per year, which, by any measure, cannot constitute a trend. The data
for Kenya relate to the years 2001, 2010, 2011, and 2012. There were three deliveries in 2001, two
projected for 2010, four projected for 2011, and three projected for 2012. We do not consider that this
represents a clear trend either.
1088. The picture for Ethiopia is more mixed. There was one delivery per year from 2003 through
2009 (with the exception of 2006, when there were none). Projected deliveries rose to three for 2010,
two for 2011, and three for 2012. Although there was an increase in the number of deliveries in
Ethiopia from 2009 to 2010, and this increase was proj ected to be sustained in the following years,

2234Appellate Body Report, EC and certain member States – Large Civil Aircraft , footnote 2548 to
para. 1161 (referring to Appellate Body Report, US – Gasoline , p. 23, DSR 1996:I, 3, at 21; and Appellate
Body Report, Japan – Alcoholic Beverages II, p. 12, DSR 1997:I, 97, at 106).
2235Appellate Body Report, EC and certain member States – Large Civil Aircraft, para. 1161.
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deliveries were projected to fluctuate between tw o and three for 2011 and 2012. We are not entirely
convinced that this is a clear trend.
1089. Consequently, we consider that the data are in sufficient to demonstrate "clear trends" in any
of the third-country markets concerned, as required by Article 6.4 of the SCM Agreement. Moreover,
the Panel did not provide a specific explanation or reasoning as to how it reached its finding of a
threat of impedance. For these reasons, we are unabl e to sustain the Panel's finding of a threat of
displacement and impedance of exports of Airbus LCA with respect to the three relevant third-country
markets.
1090. Based on the above analysis, we reject the United States' appeal that the Panel erred by failing
to identify and establish third-country "markets" in Iceland, Kenya, and Ethiopia within the meaning
of Article 6.3(b) of the SCM Agreement. However, we reverse the Panel's finding that there was a
threat of displacement and impedance in those same third-country markets.
2236
(c) Significant price suppression
1091. The United States advances three separate arguments as to why the Panel's finding of price
suppression should be reversed. Before turning to these arguments, we recall that the Appellate Body
has provided the following definition of price suppression:
"{P}rice suppression" refers to the situation where "prices" ... either are
prevented or inhibited from rising (i.e. they do not increase when they
otherwise would have) or they do actually increase, but the increase is
less than it otherwise would have been. Price depression refers to the
situation where "prices" are pressed down, or reduced.
2237 (original
emphasis)
1092. Price suppression is therefore concerned with "whether prices are less than they would
otherwise have been in con sequence of … the subsidies". 2238 For this reason, a counterfactual
analysis is likely to be of particular utility for pa nels faced with claims that subsidies have caused
price suppression.

2236We recall that the United States has not appealed th e Panel's finding of a threat of displacement and
impedance of Airbus LCA in Australia.
2237Appellate Body Report, US – Upland Cotton, para. 423 (quoting Panel Report, US – Upland Cotton
para. 7.1277). Like the panel in US – Upland Cotton , we use the term "price suppression" to refer both to an
actual decline (which otherwise would not have declined , or would have done so to a lesser degree) and an
increase in prices (which otherwise would have increas ed to a greater degree). (Appellate Body Report, US –
Upland Cotton, para. 423; Panel Report, US – Upland Cotton, footnote 1388 to para. 7.1277)
2238Appellate Body Report, US – Upland Cotton (Article 21.5 – Brazil), para. 351.
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1093. Turning to this dispute, we recall briefly th e claims made by the European Communities to
the Panel. In its first written submission, the European Communities set out its arguments with
respect to the alleged significant price suppression of the A330 family separately from its arguments
with respect to the alleged significant price suppression of the A350 family (including both the
Original A350 and the A350XWB-800), and explaine d that the aeronautics R&D subsidies affected
these two LCA families "somewhat differently".
2239
1094. The main difference between the evidence that the Europ ean Communities submitted with
respect to the A330 family and to the A350 fa mily was that, for the A330 family alone, the
European Communities submitted a chart reflecting actual data on annual A330 orders and indexed
prices-per-seat for that aircraft from 2000 through 2006. 2240 Another difference was that, because the
Original A350 was not launched until 2005, th e European Communities used a two-year
(2005-2006)2241 rather than a three-year (2004-2006) refe rence period for the A350 family. Overall,
however, there were many common elements in the arguments and evidence submitted by the
European Communities to prove that the prices of the A330 and A350 families had been suppressed.
First, the European Communities based both of its price suppression arguments on the alleged effects
of all of the subsidies at issue, rather than on th e effects of the aeronautics R&D subsidies alone.
Second, the European Communities adduced, as ev idence of price suppression for both the A330 and
the A350 families, evidence relating to: (i) the natu re of the subsidies; (ii) the magnitude of the
subsidies (as calculated by the International Trade Resources LLC (the "ITR")); (iii) the estimated
price effects of the subsidies (as calculated in part in the report by Professor Luís Cabral 2242 (the
"Cabral Report")); (iv) the conditions of comp etition in the 200-300 seat LCA market; and (v) the
results of a number of specific sales campaigns ( as set out in Annex D to the European Communities'
first written submission to the Panel).2243
1095. The evidence and arguments relating to each of these five elements were broadly similar or
even identical (in particular the conditions of competition in the 200-300 seat LCA market for both
the A330 and A350 families). The European Commun ities provided additional empirical information
with respect to the A330 family in the form of charts mapping the counterfactual A330 prices that
would have prevailed absent the subsidies: assu ming that the full per-aircraft subsidy magnitude

2239European Communities' first written submission to the Panel, para. 1387.
2240European Communities' first written submission to the Panel, para. 1389 and graph provided at
Figure 30 (BCI) to para. 1389. The European Communities also submitted a graph (BCI) reflecting actual data
on 200-300 seat LCA orders and in dexed prices-per-seat from 2000 through 2006. (European Communities'
response to Panel Question 306, para. 784, Figure 3)
2241See European Communities' first written submission to the Panel, para. 1409.
2242Professor L.M.B. Cabral, "Impact of Development Subsidies Granted to Boeing" (New York
University and CEPR, March 2007) (Panel Exhibit EC-4).
2243European Communities' first written submission to the Panel, para. 1409.
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calculated by the ITR was used by Boeing to lower its 787 pricing; and absent the price effects of the
subsidies, as calculated in part in the Cabral Re port. Although no such information was provided for
the Original A350, the European Communities' argume nts under the fifth factor, relating to the results
of specific sales campaigns, were more elaborated for the A350 family than for the A330 family.
1096. In support of its claims of price suppression with respect to both the A330 and A350 families,
the European Communities set out the details of th ree LCA sales campaigns in Annex D. The sales
campaigns in question, which were all concluded in 2005, involved the International Lease Finance
Corporation ("ILFC"), CIT Group, and Air Europa.
2244 The European Communities relied on two of
these campaigns as evidence of price suppression of both the A330 and the A350 families; and on
one of them as evidence of price suppression of the A350 family alone. More specifically:
- [ * * *

 2245

2246]
- [ * * *

2247

 . 2248

2249]
- [

 2250]

2244Panel Report, footnote 3411 to para. 7.1622.
2245European Communities' first written submission to the Panel, Annex D (BCI version), para. 99.
(footnote omitted)
2246European Communities' first written submission to the Panel, Annex D (BCI version), para. 101.
2247European Communities' first written submission to the Panel, Annex D (BCI version), para. 83.
2248European Communities' first written submission to the Panel, Annex D (BCI version), para. 84.
2249European Communities' first written submission to the Panel, Annex D (BCI version), para. 92.
2250European Communities' first written submission to the Panel, Annex D (BCI version), para. 93.
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The total number of sales arising from these three sales campaigns during the reference period is 31
Original A350s and four A330s.
1097. The vast majority of the arguments and ev idence submitted by the European Communities
pertaining to the A350 family related only to the Or iginal A350. With respect to price suppression of
the A350XWB-800—which was not launched until December 2006—the European Communities'
claim was that the price suppression of the Origin al A350 in turn affected the pricing of the
A350XWB-800 as [ ***
 *** ], and therefore the prices of the A350XWB-800 were also suppressed.
2251
1098. In its analysis of the European Communities' price suppression claim, the Panel appears to
have segmented its analysis between the various Ai rbus LCA models. The evidentiary basis for the
Panel's finding of price suppression differed for th e A330 and the Original A350. As regards the
A350XWB-800, the Panel made no findings as it c onsidered that the European Communities had
presented no evidence as to the price trends for th at model, and no evidence concerning the actual
pricing of that model in the context of specific LCA sales campaigns.2252
1099. As regards the A330, the Panel relied on da ta provided by the European Communities
showing, inter alia, the evolution in the indexed prices-per-seat of the A330 for the period 2000-2006.
Orders for 200-300 seat LCA vs. price per seat of A330 family LCA in constant dollars: 2000-2006

Source: Graph provided at Panel Report, para. 7.1782 (based on European Communities' response to
Panel Question 306, para. 784, Figure 3 (BCI)). The Panel noted that the pricing information here is
based on Airbus proprietary data. Order information is based on Airclaims CASE Database, query as of
19 January 2007 (Panel Exhibit EC-3). (Panel Report, footnote 3719 to para. 7.1782)

2251European Communities' first written submission to the Panel, paras. 1408, 1409, and 1424. In
support if its argument, the European Communities relied on a statement by C. Scherer, Airbus SAS,
"Commercial Aspects of the Aircraft Business from the Perspective of a Manufactur er" (March 2007) (Panel
Exhibit EC-11 (BCI), para. 114.
2252Panel Report, para. 7.1793.
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The Panel also compiled and presented order data with respect to the A330 and Original A350
(combined) and the 767 and 787 (combined) to illustrate the global market share for these LCA orders
in the period 2000-2006.
Table 6. Market share in the 200-300 seat wide-body LCA market (based on order data): 2000-2006
Year
Airbus
A330 and
Original A350
Airbus
market share
Boeing
767 and 787
Boeing
market share
2000 95 91% 9 9%
2001 52 57% 40 43%
2002 24 75% 8 25%
2003 49 82% 11 18%
2004 51 46% 59 54%
2005 129 34% 251 66%
2006 117 40% 173 60%
Source: Table provided at Panel Report, pa ra. 7.1783 (referring to data compiled from Airclaims CASE Database, query as
of 19 January 2007, 2004-2006 Orders (Panel Exhibit EC-1287) and Airclaims CASE Database, query as of 19 January 2007
(Panel Exhibit EC-3)).

1100. Based on this evidence, the Panel noted that:
{the} erosion of the dominance of the A330 in {the 200-300 seat
LCA} product market coincides with the introduction of the 787 in
2004. The evidence concerning the pricing trends for the A330,
combined with the market share data, are consistent with what we
would expect to occur from the introduction of a technologically-
superior aircraft, offering opera ting cost advantages over older-
technology aircraft, for around the same price. Clearly, one would
expect that prices of the A330 would fall, and that it would lose
market share, even in the face of significantly increased demand in
that product market.
2253 (footnote omitted)
1101. In concluding that there was significant price suppression in the 200-300 seat LCA market,
the Panel also relied on evidence from the three sales campaigns detailed in Annex D. 2254 The Panel
noted that, for "certain sales campaigns", Airbus had been able to secure sales by offering [ ***
 *** ] in order to offset the technological advantages and operating cost savings offered by
the 787.2255 The Panel was therefore "satisfied" that th e technologies applied to the 787 resulted in an
aircraft that offered substantial operating cost reductions to customers, and that the combination of the
superior technology and lower operating costs of th e 787 "clearly affected the comparative value of

2253Panel Report, para. 7.1785.
2255Panel Report, para. 7.1792.
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Airbus' A330 and Original A350, leaving Airbus no other option but to reduce the prices of its aircraft
in order to compete".
2256 The Panel also highlighted that the evidence concerning the degree of price
concessions that Airbus offered in order to secure sales of its A330 and Original A350 indicated that a
further effect of the aeronautics R&D subsidies was "significant" price suppression with respect to the
A330 and Original A350.2257
(i) The United States' Appeal
1102. The United States seeks reversal of what it characterizes as "three findings" made by the
Panel with respect to significant price suppression, na mely: (i) that an effect of the aeronautics R&D
subsidies is significant price suppression with regard to the A330 in the world market; (ii) that an
effect of the aeronautics R&D subsidies is signifi cant price suppression with regard to the Original
A350 in the world market; and (iii) that an eff ect of the aeronautics R&D subsidies is significant
price suppression with regard to Airbus 200-300 seat LCA.2258
1103. As a preliminary matter, we are not persuaded that the United States is correct by referring to
"three" Panel findings. The ultimate conclusion that the Panel reached was that "the effect of the
aeronautics R&D subsidies is … significant price suppr ession, within the meaning of Article 6.3(c) of
the SCM Agreement with respect to" the 200-300 seat LCA market.
2259 This finding was in turn
based on the Panel's conclusion th at the evidence before it showed that "the aeronautics R&D
subsidies contributed in a genuine and substantia l way to Boeing's development of technologies for
the 787 and that, as a result, but for the effects of these subsidies … prices of the A330 and the
Original A350 in the 2004 to 2006 period would have been significantly higher, and to that extent,
Airbus would not have suffered significant pr ice suppression in the 200-300 seat wide-body LCA
product market, within the meaning of Article 6.3(c) of the SCM Agreement."
2260 Although, as
described above, the evidence that the Panel relied upon with respect to A330 prices was not entirely
coextensive with the evidence reli ed upon with respect to the Original A350 prices, we do not see
that, as the United States seems to suggest, the Pa nel made separate findings with respect to A330
prices, on the one hand, and Original A350 prices, on the other hand. In any event, we consider each
of the three arguments presented by the United States on this ground of appeal.

2256Panel Report, para. 7.1792. (footnote omitted)
2257Panel Report, para. 7.1792. The Panel noted that Airbus sold the Original A350 to one customer for
significantly less than it had sold the A330 to that same customer several years earlier. ( Ibid., footnote 3733
thereto (referring to European Comm unities' second written submission to the Panel, Full Version HSBI
Appendix, para. 71))
2258United States' other appellant's submission, para. 314.
2260Panel Report, para. 7.1794.
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(ii) Whether the Panel improperly relied on a perceived
coincidence between the 2004 launch of the 787 and a
decline of prices for the A330
1104. The United States argues that, in its analysis of price suppression, the Panel improperly relied
on a perceived coincidence between the launch of the 787 in 2004, and a decline in A330 prices
during the reference period. The United States asserts that there is no such correlation. Although its
arithmetic is correct, the Panel failed to look "more rigorously" at the evolution of these trends, which
reveals "no discernible correlation" between the 787's presence in the market and the A330 prices.
2261
Relying on the A330 pricing and market share data set out by the Panel 2262, the United States argues,
for instance, that:
- the A330's share of the market for 200-300 seat LCA in 2004 declined by 36% from 2003 as
the 787 attained a significant market presence upon its introduction. Yet, A330 order prices

- Airbus' market share declined to a far lesser extent in 2005 from 2004, yet A330 prices
[ *** ]. The difference in 2005 that explains these developments is that
Airbus marketed the Original A350 [ *** ]; and
- Airbus' market share in 2006 increased by 6% from 2005, yet A330 prices [ *** ].
Considering that the 787's market share had decreas ed to within 6% of its 2004 level, this can
be explained on the basis that Airbus was offering [ *** ] the Original
A350.
2263
1105. The European Union responds on appeal that th e United States seeks to reargue the facts by
focusing on discrete data points rather than clear trends over time. The European Union argues that
an examination of the evidence as a whole demons trates that there is a direct correlation between
the 787 launch and the drop in A330 prices. 2264 The European Union a dds that, even accepting the
United States' focus on isolated data points, its arguments cannot succeed. 2265 In this regard, the
European Union explains that the launch of the 787 in April 2004 had no [ *** ] impact
on A330 prices in 2004, because the 787 first needed to gain the confidence of the market and

2261United States' other appellant's submission, para. 302.
2262See supra, para. 1099.
2263United States' other appellant's submission, para. 302 (referring to Panel Report, paras. 7.1782
and 7.1783; and C. Scherer, Airbus SAS, "Commercial Aspects of the Aircraft Business from the Perspective of
a Manufacturer" (March 2007) (Panel Exhibit EC-11 (BCI)), paras. 101-104 and 106).
2264European Union's appellee's submission, para. 468.
2265European Union's appellee's submission, para. 470.
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potential buyers that the 787's composite structure was indeed as good as advertised by Boeing.
2266
Once Boeing had successfully convinced customers of the significant operating cost advantages of the
composite 787, A330 prices in 2005 and 2006 [ *** ]. According to the
European Union, the launches of the Original A350 and the A350XWB-800 were responses to that
fundamental cause of the price effects, not independent causes of [***] A330 prices.2267
1106. We understand the United States to suggest that , in order to draw conclusions about the
existence of price suppression, the Panel was require d to establish a direct and continuous correlation
between the 787's share of the market in the refe rence period and the A330 prices during these years.
In this regard, the United States refers to specifi c figures relating to the 787's market share and A330
prices during the reference period, which it explains on the basis of reasons other than those given by
the Panel in reaching its conclusion.
1107. We note that the Panel drew its conclusions about the effects of the 787 on A330 prices on the
basis of the overall trends demonstrating erosion of Airbus' market share as compared with the
preceding four years, together with decreases in the (indexed) A330 prices during the reference
period. According to the Panel:
{t}he … market share figures show the rather dramatic erosion of
Airbus' market share in the 2004 to 2006 period, compared with the
2000 – 2003 period. This erosion of the dominance of the A330 in
this product market coincides with the introduction of the 787 in
2004. The evidence concerning the pricing trends for the A330,
combined with the market share data, are consistent with what we
would expect to occur from the introduction of a technologically-
superior aircraft, offering opera ting cost advantages over older-
technology aircraft, for around the same price. Clearly, one would
expect that prices of the A330 would fall, and that it would lose
market share, even in the face of significantly increased demand in
that product market.
2268 (footnote omitted; emphasis added)
1108. From the above quote, it is clear that the Panel considered the relevance of the trends in the
light of its economic logic, which dictated that the introduction of a superior product at comparable
prices would normally be accompanied by decreases in prices of the incumbent competing product.
1109. Elsewhere in its analysis, the Panel explained why the A330 prices could be expected to, and
did, fall upon the introduction of the 787, namely, th at "the combination of the superior technology
and lower operating costs of the 787 clearly aff ected the comparative value of Airbus' A330 …,

2266European Union's appellee's submission, para. 470 (referring to European Communities' first written
submission to the Panel, Annex C, paras. 22-25).
2267European Union's appellee's submission, para. 470.
2268Panel Report, para. 7.1785.
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leaving Airbus no other option but to reduce the prices of its aircraft in order to compete".
2269 The
United States does not dispute this economic logic and line of reasoning employed by the Panel. We
consider that the Panel's explanation of the inferences and conclusions that it drew from the
movements in A330 prices over the reference period, following the launch of the 787, in the light of
the strong surge in demand and Boeing's increasing market share, are consistent with and find a basis
in the evidence.
1110. Furthermore, we do not see any basis for the United States' assertion that the Panel was
required to attach decisive weight to specific data points in particular years of the reference period
that, when viewed in isolation, appear to be at odds with the Panel's economic reasoning and with the
data taken as a whole. The Panel set out its theo ry as to how the entry of the 787 into the market
affected competing LCA, which the United States does not contest on appeal. The Panel tested its
theory against the evidence before it. As we see it, the Panel provided a coherent and reasoned
explanation of how the evidence of market share a nd price trends, both within the reference period,
and as compared to the preceding period, supporte d and confirmed its theory of causation. The
United States argues that there is no "discernible correlation" 2270 between the 787's market presence
and the A330 prices by comparing A330's 36% decrease in market share from 2003-2004 with the
much [ *** ] in A330 prices during those years. Yet, the fact that the A330 prices were
not affected immediately by the launch of the 787, or did not drop to the same degree as Airbus'
market share declined, may well reflect the fact th at Airbus did not change its pricing strategy
immediately upon the introduction of the 787, but did so with a time-lag, and only after appreciating
the extent of the market share acquired by Boeing. The United States also argues that Airbus' market
share declined to a far less extent in 2005 from 2004 than in the previous year, yet A330 prices
[ *** ]. Similarly, the United States argues that in 2006 A330 prices [ *** ] even
though Airbus' overall share of the 200-300 seat LCA market increased by 6% from 2005, and the
share of that market held by the 787 decreased by 6% from what it had been in 2004. As we see it,
the [ *** ] in th e A330 prices between 2005 and 2 006 may explain why Airbus was
able to recover some market share. Moreover, the United States does not explain why the temporary
loss of market share within an overall trend of si gnificantly increasing market share or the extent of
the decrease in A330 prices means that the Panel coul d not properly have concluded that the effect of
the aeronautics R&D subsidies was significant price suppression.

2269Panel Report, para. 7.1792.
2270United States' other appellant's submission, para. 302.
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1111. Even accepting that the eviden ce of market share and price trends referred to by the
United States do not support the Panel's reasoni ng—which we do not necessarily agree is so—we do
not consider that the points of criticism raised by the United States undermine the Panel's theory or
analysis of the evidence in its totality, or estab lish that the Panel coul d not have reached the
conclusion that it did. Moreover, the arguments ma de by the United States on appeal take no account
of the broader data set or of the clear and steep decline in Airbus market share [ *** ]
during the reference period, as compared to the 2000-2003 period.

1112. Finally, and in any event, we note that these ar guments of the United States seek to have us
draw different inferences from the data than the Pane l did. The reasons offered by the United States
for the movements in A330 prices may not be unreasonable inferences to be drawn from the data; yet,
we cannot, for this reason alone, substitute them fo r the Panel's own appreciation of the evidence and
reasoning over the facts before it. Accordingly, we see no basis upon which to interfere with the
Panel's finding. We also note that no claim by the United States has been raised under Article 11 of
the DSU.
1113. For these reasons, we do not consider that the conclusions drawn by the Panel from the data
concerning the 787 market share and the A330 prices during the reference period are in error or
indicate that the Panel erred in concluding that the effect of the aeronautics R&D subsidies was
significant price suppression in the 200-300 seat LCA market.
(iii) Whether the Panel's findings are insufficient to support
conclusions about overall pricing levels for the
Original A350
1114. Second, the United States asser ts that the Panel's finding of price suppression for the
Original A350 must be reversed because, with "no pricing data of any kind" and "anecdotal evidence"
that covered "barely 30%" of sales of the Or iginal A350 in the 200-300 seat LCA market, the
evidence is insufficient to support any conclusion about overa ll pricing levels.
2271 I n t h e
United States' view, the absence of "critical pieces of information" reflects, in the first place, a failure
by the European Communities to establish a prima facie case.2272 The United States also argues that
the information relied upon by the Panel does not e xplain what happened with Original A350 pricing
in the majority of sales of that aircraft, and that it is therefore impossible to infer that Original A350
prices were suppressed or that the degree of price suppression was "significant".2273

2271United States' other appellant's submission, para. 304.
2272United States' other appellant's submission, para. 304.
2273United States' other appellant's submission, para. 310.
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1115. The European Union responds that, in order to establish a prima facie case, it was not
required to present the level of detailed prici ng information for the Original A350 that the
United States demands. In any event, the European Union asserts that it did present evidence of total
Original A350 prices in the context of its lost sales and price suppression sales campaign evidence.
2274
In addition, the European Union argues that, wherea s the Panel's detailed analysis of A330 prices was
important—because it confirmed the [ *** ] impact of the 787 launch on those prices—for other
Airbus models (the Original A350 and A350XWB -800), such evidence was less important, because
the effect of the aeronautics R&D subsidies, through the launch of the 787, would not be as visible
given that those Airbus models were launched only after the 787.2275 As prices for these two types of
aircraft were never unaffected by the existence of the 787, precise pricing information would not have
revealed the price effects of the aeronautics R&D subsidies.
1116. Here, we understand the United States to argue th at the Panel did not have a sufficient basis
on which to base a finding of price suppression with r espect to the Original A350, and to suggest that
the Panel was required to rely on price trend data for the Original A350 to reach such a finding. We
disagree. We recall that, in contrast to its reasoni ng with respect to the A330, the Panel did not refer
to pricing trend data in its reasoning with respect to the Original A350. Rather, the Panel noted that
the European Communities had identified "certain sa les that Airbus was able to secure by offering
[ *** ] in order to offset the technological advantages and operating cost savings
offered by the 787".
2276 It appears from the evidence submitte d by the European Communities to the
Panel that the Panel was referring to the three sal es campaigns involving the ILFC, CIT Group, and
Air Europa.2277 As we noted above, the total number of orders of the Original A350 resulting from
these sales campaigns was 31. The United States notes that these sales account for 30.4% of the total
number of Original A350 sales during the reference period (given that the total number of sales of
Original A350s during that time was 102).
2278 In our view, evidence from sales campaigns accounting
for about one third of Original A350 sales dur ing the reference period constitutes direct and
sufficiently representative evidence of what was happening to the prices of the Original A350 during
the reference period. We see no reason why evidence relating to such sales could not, in this market,
supply a sufficient basis upon which the Panel coul d conclude that there was price suppression with
respect to the Original A350.

2274European Union's appellee's submission, paras. 471 and 477.
2275The European Union notes that Airbus started offering the Original A350 in December 2004 and the
A350XWB in July 2006. (European Union's appellee's submission, para. 476 and footnote 933 thereto (referring
to Panel Report, paras. 4.279 and 4.280))
2276Panel Report, para. 7.1792.
2277See supra, para. 1096.
2278See United States' other appellant's submission, para. 310.
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1117. Turning to the United States' assertion that the Panel was required to have before it price trend
data in order to conclude that there was price suppression for the Original A350, we note that the
United States relies upon a statement by the Appellate Body in US – Upland Cotton that "{a}n
assessment of 'general price trends' is clearly relevant to significant price suppression (although, as the
{p}anel itself recognized, price trends alone are not conclusive)."
2279 Yet this statement itself shows
that, while the Appellate Body has found price trend data relevant, it has also declined to deem such
evidence conclusive of the existence of pri ce suppression. Moreover, we agree with the
European Union that the Appellate Body's statement in US – Upland Cotton that general price trends
are "clearly relevant" was a function of the particul ar counter-cyclical and pric e-contingent nature of
the subsidies at issue in that dispute. 2280 Finally, we see some merit in the argument of the
European Union that pricing trends for the Origin al A350 would not have been particularly probative
in this dispute given that prices for the Original A350 were never unaffected by the existence of
the 787. Since the Original A350 was launched in a market where the effects of the subsidies
—through the presence of the 787—were already being felt, any subsequent price trends would not
have been particularly probative as to the effects on Airbus prices of the aeronautics R&D
subsidies.2281
1118. The United States further argues that the eviden ce relied on by the Panel with respect to the
Original A350 fails to demonstrate that any price suppression was "significant". 2282 W e n o t e t h e
Panel's explanation that the "degree of price concessi ons" that Airbus had to offer to secure sales of
the A330 and Original A350 meant that a furthe r effect of the aeronautics R&D subsidies was
significant price suppression.2283 The United States does not appeal this aspect of the Panel's finding,
and we find no error in this finding of the Panel, which was based on the sales campaign evidence set
out in Annex D to the European Communities' first written submission.

2279United States other appellant's submission, para. 306 (quoting Appellate Body Report, US – Upland
Cotton, para. 434).
2280Because the amount of the cotton subsidies increased with falling world prices, tracking price trends
was of particular relevance in understanding the pric e suppressive effects of subsidization granted to the
US cotton industry. (See European Union's appellee's submission, paras. 472-474)
2281European Union's appellee's submission, para. 476.
2282United States' other appellant's submission, para. 310. We have noted above that the Appellate
Body has understood "significant" to mean "important, notable or consequential", and that an assessment of that
term has both quantitative and qualitative dimensions. (Supra, para. 1052)
2283Panel Report, para. 7.1792. In an accompanying footno te to its finding, the Panel noted that Airbus
sold the Original A350 to one customer for significantly less than it had sold the A330 to that same customer
several years earlier. ( Ibid., footnote 3733 thereto (referring to European Communities' second written
submission to the Panel, Full HSBI Appendix, para. 71))
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1119. For these reasons, we reject the United States' re quest to reverse the Panel's finding that the
aeronautics R&D subsidies caused significant pr ice suppression in the 200-300 seat LCA market
because of the alleged insufficiency of pricing data concerning the Original A350.
(iv) Whether the Panel was required, but failed, to determine the
existence of significant price suppression for the product as a
whole
1120. The final argument of the United States is that the Panel was required, but failed, to determine
the existence of significant price suppression for the product "as a whole".
2284 In support, the
United States recalls that the panel in Korea – Commercial Vessels observed that Article 6.3(c) of the
SCM Agreement does not require a panel to assess price suppression by examining each model
comprising the complaining Member's product but it do es require that the ultimate conclusion relate
to the complaining Member's product as a whole. 2285 The United States argues that the "product in
question" consists of all three of the 200-300 seat Airbus models identified by the
European Communities: the A330, Original A350, and A350XWB-800. Accordingly, "a finding in
favour of the {European Union} … would be valid only if the effect of the subsidy is significant price
suppression generally for Airbus 200-300 seat aircraft."2286 The United States observes, however, that
the Panel chose to examine prices on a model basis and made findings that were based on actual
prices for only one model (that is, the A330), which acc ounted for about two thirds of Airbus' sales in
the 200-300 seat LCA market.
1121. The European Union responds that the Pa nel properly found price suppression based on
detailed pricing information for the A330, and some pricing information for the Original A350. With
respect to the A350XWB-800, the European Union poi nts out that, since that aircraft was launched
only in 2006, the Panel would have been able to assess only a single data point, which would have
been of limited relevance.2287
1122. First, we observe that, in support of its argum ent, the United States relies on a finding of the
panel in Korea – Commercial Vessels.2288 In particular, it refers to a statement by the panel that, in an
assessment of the existence of a causal relationship between the subsidy and the movements in prices
of products of concern to the complaining party, a "main focus of the analysis would be levels and
trends in the price for the product in question, as a whole, in the relevant market (i.e., 'the same

2284United States' other appellant's submission, paras. 312 and 313.
2285United States' other appellant's submission, para. 312 (referring to Panel Report, Korea –
Commercial Vessels, para. 7.557).
2286United States' other appellant's submission, para. 313.
2287European Union's appellee's submission, para. 478.
2288United States' other appellant's submission, para. 312.
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market'), as a whole, and th e various reasons behind them."
2289 We are not entirely persuaded of the
United States' interpretation of the panel's reasoning in Korea – Commercial Vessels , nor, for that
matter, of whether that panel's reasoning should be applied outside the particular facts of that
dispute.2290
1123. Even assuming, however, that a finding of price suppression should have been made for
Airbus' "product as a whole" in the 200-300 seat LC A market, we do not see any error in the Panel's
approach in this dispute. It is true that the Panel's ultimate finding of price suppression was based
upon its analysis of the A330 and the Original A350 , and not upon evidence as to price effects on the
A350XWB-800. However, the United States does not point to any evidence on the Panel record
suggesting that the sales or the price levels of the A350XWB-800 during the reference period were so
significant that, had they been taken into account, they would have prevented the Panel from reaching
the finding that it did on the basis of its examinati on of A330 and Original A350 prices. Indeed, the
Panel noted that the A350XWB-800 was not launched until the very end of the reference period, in
December 20062291, and thus was not present in the relevant market for virtually the entirety of the
reference period.2292 We fail to see, and the United States do es not explain, how consideration of the
A350XWB-800 could have altered the Panel's analysis of, or findings regarding, price suppression in
the 200-300 seat LCA market.
1124. Second, the European Communities submitted price trend data in respect of all sales of the
A330 during the reference period. According to th e United States' own estimates, sales of the A330
accounted for 65.7% of total sales of Airbus aircraft during that time. 2293 Moreover, as we have
explained above, the Panel's ultimate finding was not based exclusively on sales data for the A330,
but also on data relating to certain sales involving th e Original A350. We have already determined the
data relied on by the Panel for the Original A350 to be sufficient. Thos e data comprised sales
campaign evidence with respect to the Original A350, accounting for 30.4% of total Original A350
sales, or 10.4% of overall Airbus orders for 200-300 seat LCA during the reference period. 2294 Taken

2290We note, for example, that in US – Upland Cotton the Appellate Body found that the panel had not
erred in examining only world cotton prices in general, and in not separately examining the prices of the
complainant in the world market. (Appellate Body Report, US – Upland Cotton, paras. 416-418)
2291Panel Report, para. 7.1777.
2292The Panel noted that, in December 2006, Airb us announced the launch of the redesigned
A350XWB programme, first deliveries of which were scheduled to be made in 2013. (Panel Report,
para. 7.1777)
2293United States' other appellant's submission, para. 313 (referring to Panel Report, para. 7.1783 and
Airclaims CASE Database, query as of 19 January 2007 (Panel Exhibit EC-3)). The United States asserts that,
of the 297 total sales of the A330 and Original A350 in the reference period, there were 195 orders for the A330.
2294The 31 orders for the Original A350 accounted for 10.4% of the total 297 Airbus orders during the
reference period. (See United States' other appellant's submission, para. 310 and footnote 486 to para. 313)
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cumulatively, the pricing data for the A330 and Original A350 considered by the Panel would account
for roughly three quarters of Airbus' sales in th e 200-300 seat LCA market during the reference
period.
2295 We therefore cannot accept the United States' argument that the Panel failed to undertake a
price suppression analysis in the 200-300 seat LCA market that related to Airbus' "product as a
whole".
1125. For the above reasons, we do not agree with th e United States that the Panel erred in its
treatment of the evidence concerning the prices of Airbus LCA in the 200-300 seat LCA market, and
in concluding overall that the effect of the aerona utics R&D subsidies is significant price suppression
with respect to the 200-300 seat LCA product market.2296
(d) Conclusion
1126. We have found that, in its analysis of the technology effects of the aeronautics R&D subsidies
in the 200-300 seat LCA market, the Panel did no t err in its interpreta tion and application of
Articles 5(c) and 6.3 of the SCM Agreement by finding that the aeronautics R&D subsidies
contributed in a genuine and substantial way to Boeing's development of technologies for the 787.
We have further found that the United States has not established that th e Panel erred in its
counterfactual analysis of the effects of the aeronautics R&D subsidies on Boeing's or on Airbus'
prices and sales. We have found no reason to disturb the Panel's findings that the effects of the
aeronautics R&D subsidies are significant lost sales and significant price suppression within the
meaning of Article 6.3(c) of the SCM Agreement. With respect to the Panel's finding of a threat of
displacement and impedance within th e meaning of Article 6.3(b) of the SCM Agreement, we have
found that the Panel did not err in failing to est ablish separately the existence of "third-country
markets" with respect to Kenya, Iceland, and Ethiopia, and did not, in reaching that finding, contradict
its own articulation of the meaning of an LCA "mar ket". We have neverthe less reversed the Panel's
finding that the aeronautics R&D subsidies caused a threat of displacement and impedance of
EC exports, to the extent that such finding relates to the third-country markets of Kenya, Iceland, and
Ethiopia (but not insofar as it relates to Australia ), because the Panel did not identify clear trends
demonstrating such a threat.
1127. For these reasons, we modify and uphold the Panel's overall conclusion, in paragraphs 7.1797,
7.1854(a), and 8.3(a)(i) of the Panel Report, th at the aeronautics R&D subsidies, through their
technology effects, caused serious prejudice to the interests of the European Communities within the

2295As the European Union points out, given that the A350XWB-800 was launched only in December
2006 (the end of the reference period), the Panel would ha ve been able to assess only one single data point for
that model. (See European Union's appellee's submission, para. 478)
2296Panel Report, para. 8.3(a)(i).
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meaning of Article 5(c) and Article 6.3(b) and (c) of the SCM Agreement with respect to the 200-300
seat LCA market.
C. Article 11 of the DSU
1128. We now turn to the European Union's claim that the Panel failed to conduct an objective
assessment of the matter as required under Article 11 of the DSU. In particular, the European Union
contends that the Panel failed to ensure due process in finding, in paragraph 7.1701 of its Report, that,
save for the ManTech and DUS&T programmes, there was insufficient evidence to determine whether
the USDOD RDT&E programmes funded "predominan tly" assistance instruments, as opposed to
procurement contracts, or a mixture of assistance instruments and procurement contracts.
1129. Before proceeding to our analysis of the European Union's arguments, we lay out the
background against which the Panel reached this findi ng in paragraph 7.1701 of its Report. In its
analysis of financial contribution regarding the USDOD RDT&E programmes, the Panel found that
payments and access to facilities pursuant to USDOD procurement contracts did not constitute
financial contributions within the meaning of Article 1.1(a)(1) of the SCM Agreement, whereas
payments and access to facilities through USDOD assistance instruments did constitute direct
transfers of funds and provisions of goods or services under Article 1.1(a)(1)(i) and (iii),
respectively.
2297 The Panel further found that at least two of the 23 USDOD RDT&E programmes at
issue—namely, ManTech and DUS&T—were funded "primarily if not exclusively" through
assistance instruments.2298 The Panel recalled these findings later in its analysis, in paragraph 7.1701,
when it turned to assess whether the NASA and USDOD aeronautics R&D subsidies caused serious
prejudice to the interests of the European Communities.
1130. In paragraph 7.1701 of its Interim Report, th e Panel recalled its findings that only assistance
instruments, and not procurement contracts, were specific subsidies, and that two of the 23 USDOD
RDT&E programmes—ManTech and DUS&T—"were f unded through cooperative agreements or
other cost shared arrangements".
2299 As regards the other 21 USDOD RDT&E programmes, the Panel
found that, given the absence of evidence necessary to determine which transactions between the
USDOD and Boeing were made under assistance instru ments, as opposed to procurement contracts, it
would not consider the assistance instrument s funded through these other 21 USDOD RDT&E
programmes as part of its serious prejudice analysis . Accordingly, the Pa nel conducted its adverse

2297Panel Report, para. 7.1171. See Part VI of this Report.
2298Panel Report, para. 7.1165. The Panel also found that the ManTech and DUS&T programmes had
the explicit objective of developing "dual-use" R&D, that is, technology that could be used both in military and
in commercial aircraft. (Ibid., paras. 7.1148 and 7.1740)
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effects analysis relating to the USDOD RDT&E pr ogrammes only with respect to the ManTech and
DUS&T programmes.
2300
1131. In its comments on the Interim Report, the Eu ropean Communities requested the Panel to
expand its adverse effects analysis to all assist ance instruments funded through any of the USDOD
RDT&E programmes at issue—and not only ManTech and DUS&T—because there was evidence on
the record indicating which transactions under such programmes were funded pursuant to assistance
instruments.
2301 The European Communities therefore request ed the Panel to include in its adverse
effects analysis "any of the challenged RDT&E {programmes} to the extent that the {programme} has
funded assistance instruments with Boeing".2302
1132. In its Final Report, the Panel addressed th e comments that the European Communities had
made at the interim review stage on the Panel's a pproach, and on its exclusion of all but two USDOD
RDT&E programmes for purposes of its adverse effect s analysis. In particular, the Panel recognized
that the record included certain assistance instruments funded through the other USDOD programmes,
and stated that it would reformulate paragraph 7.1701 of its Report to clarify "that its serious
prejudice evaluation includes assistance instruments funded under the ManTech and DUS&T
programmes as well as under the 21 other programmes under the RDT&E Program". 2303 In the final
version of that paragraph, the Panel identified "the need to ensure that it consider{ed} the effects only
of those {USDOD} measures that it ha{d} found cons titute specific subsidies", notwithstanding that
the European Communities had presented its serious prejudice arguments "without distinguishing
between effects which are attributable to procurement contracts under {the USDOD} programmes and
those which are attributable to assistance instruments". 2304 Although the Panel acknowledged that
there was some evidence on the record of specific assistance instrume nts used to provide funding, it
considered that, generally, there was insuffici ent evidence of the effects of those assistance
instruments as distinct from the overall effects of the RDT&E programmes. The Panel recalled,
however, that it had found in paragraph 7.1 148 of its Report that the ManTech and DUS&T
programmes "were predominantly funded through cooperative agreements or other assistance

2300Panel Interim Report, para. 7.1701.
2301The European Communities submitted that there was sufficient evidence on the record to enable the
Panel to determine which transactions were USDOD procurement contracts and which were USDOD assistance
instruments. The European Communities further identified a large number of discrete assistance instruments on
the record, and attached a chart setting out several of th ese USDOD assistance instrument s. On this basis, the
European Communities affirmed that "{a}ll of this information on the record makes clear that several
{US}DOD RDT&E {programme} other than the ManTech and DUS&T programmes funded assistance
instruments with Boeing". (European Communities' comments on the Interim Report, p. 22 (original emphasis))
2302Panel Report, para. 6.117 (quoting European Communities' request for interim review, p. 24).
(emphasis added by the Panel)
2303Panel Report, para. 6.124.
2304Panel Report, para. 7.1701.
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instruments", and considered that, for this reason, it was "highly likely that the effects of {those two}
programmes pertain to the effects of assistance instruments funded through those programmes".
2305
The Panel, here, added the adverb "predominantly ", which had not appeared in the corresponding
sentence of its Interim Report.
1133. The Panel, however, found itself unable to take the same approach for the other 21 USDOD
RDT&E programmes, that is, to assume that the effects of those programmes pertained to the effects
of assistance instruments, as opposed to procurement contracts. Rather, the Panel considered that
there was "insufficient eviden ce on the record that those other RDT&E programmes funded
predominantly assistance instruments". 2306 Therefore, the Panel explained, the "end result is that the
European Communities has not advanced sufficient argument or evidence regarding the effects of
assistance instruments funded through RTD&E progra mmes other than in relation to the ManTech
and DUS&T programmes". 2307 In its subsequent analysis of the adverse effects of the USDOD
DUS&T programmes, the Panel took account only of the ManTech and DUS&T programmes.
1134. On appeal, the European Union contends that, in setting out its "predominance" approach in
paragraph 7.1701 of the Final Repor t, the Panel failed to ensure due process on two grounds. First,
the Panel's "predominance" approach, set out for the first time in the Final Report, could not have
been anticipated and, conse quently, the European Communities did not have a "meaningful
opportunity to respond to" this approach. 2308 Second, the European Union argues that, despite
recognizing that it had insufficient evidence to ascer tain the effects of assistance instruments alone,
the Panel failed to seek the necessary information from the United States, even though the Panel was
aware that the United States had consistently ignor ed the European Communities' requests to produce
information that would have permitte d a contract-by-contract analysis. 2309 For the European Union,
the Panel was required, but failed, to direct inquiries to the United States under Article 13 of the DSU,

2305Panel Report, para. 7.1701.
2306Panel Report, para. 7.1701.
2307Panel Report, para. 7.1701.
2308European Union's appellant's submission, para. 244 (quoting Appellate Body Report, US –
Gambling, para. 273). The European Union argues that, in the Interim Report, the Panel explained that the only
reason for excluding all but two USDOD RDT&E programmes was the insufficient evidence about whether they
funded assistance instruments or procurement contracts. In the Final Report, however, the Panel introduced a
different approach, namely, that its analysis was co nfined to the ManTech and DUS&T programmes as those
were the only programmes that " funded predominantly assistance instruments". (Ibid., para. 246 (quoting Panel
Report, para. 7.1701) (emphasis added by the European Union))
2309European Union's appellant's submission, paras. 251 and 255.
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and to draw adverse inferences from instances of the United States' non-cooperation in disclosing
relevant contracts.
2310
1135. In response, the United States argues that pa rties are not entitled to comment on a panel's
revision to its interim report because, otherwise, the interim review stage would turn into
"a potentially indefinite cycle of comments and changes". 2311 Moreover, the Panel's approach in
paragraph 7.1701 was not "unexpected" 2312 or "surprising" 2313, because the European Communities
had "early and clear notice", including through cer tain of the Panel's questions, that the USDOD
RDT&E programmes funded different categories of c ontracting instruments and that such categories
could be treated differently under Article 1 of the SCM Agreement.2314 The United States emphasizes
that the Panel was not obliged, under Article 13 of th e DSU, to "develop information on behalf of the
complaining party". 2315 The United States further asserts that it did not fail to cooperate with the
information-gathering process2316 and the Panel did not fail to request necessary information from the
United States.2317 Finally, the United States considers that the European Union "misunderstands" the
Panel's adverse effects finding, in that the Panel did not imply that it needed more contracts to be
placed on the record in order to permit it to make findings with respect to more programmes, but,
rather, that it lacked arguments and evidence from the European Communities "relating to the effects
of the assistance instruments that the United States had placed on the record years earlier".
2318

2310European Union's appellant's submission, paras. 256 and 257. While the European Union requests
the Appellate Body to reverse the Panel's finding that the USDOD RDT&E programmes—other than ManTech
and DUS&T—do not cause the same effects as the other R&D subsidies, the European Union states that it does
not request the Appellate Body to complete the analysis. (Ibid., para. 259)
2311United States' appellee's submission, para. 223. The United States further argues that, in any event,
the European Communities had every opportunity to present arguments and evidence to support its prima facie
case. (Ibid., para. 226)
2312United States' appellee's submission, para. 227 (quoting European Union's appellant's submission,
para. 244).
2313United States' appellee's submission, para. 227 (quoting European Union's appellant's submission,
para. 247).
2314United States' appellee's submission, para. 227 (quoting European Union's appellant's submission,
paras. 244 and 247).
2316The United States contends that it "complied with the relevant decisions and rulings of the DSB, the
representative of the DSB in the information-gathering process under Annex V of the SCM Agreement in US –
Large Civil Aircraft … and the Panel in US – Large Civil Aircraft (Second Complaint)." The United States adds
that it went to "great lengths to identify, assemble, and provide as many responsive documents as possible", and
that it "discussed individual contracts and assistance instruments at length". (United States' appellee's
submission, para. 240 (footnote omitted))
2317The United States contends that the Panel "ask ed numerous questions about the contracts and
assistance instruments submitted by the United States". (United States' appellee's submission, para. 241
(referring to Panel Questions 131, 190-192, 194, 195, 205, 210, 212, 213, 321, and 360))
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1136. At the outset of our analysis, we observe th at the European Union styles its claim under
Article 11 of the DSU as a "due process" claim.
2319 In this respect, the Appellate Body has recognized
the central role of due process in WTO dispute settlement, noting that:
… {due process} informs and finds reflection in the provisions of the
DSU. In conducting an objective assessment of a matter, a panel is
"bound to ensure that due process is respected". Due process is
intrinsically connected to notions of fairness, impartiality, and the
rights of parties to be heard and to be afforded an adequate
opportunity to pursue their claims, make out their defences, and
establish the facts in the context of proceedings conducted in a
balanced and orderly manner, according to established rules. The
protection of due process is thus a crucial means of guaranteeing the
legitimacy and efficacy of a rules-based system of adjudication.
2320
(footnotes omitted)
1137. The first of the European Union's arguments in support of its due process claim is that the
Panel introduced the "predominance" approach for th e first time in paragraph 7.1701 of its Final
Report, thereby depriving the European Communities of any meaningful opportunity to comment on
such a "novel theory".2321 We understand that, on this ground of appeal, the European Union does not
take issue with the Panel's use of the predominance test per se but, rather, with the fact that it
appeared for the first time in the Final Report. We observe, in this respect that the predominance test
appears to have emerged from repeated exchanges between the parties and the Panel over the course
of the Panel proceedings. Even if the word "predo minantly" was not used in the Interim Report, the
essence of this test could be discerned from ea rlier parts of the Interim Report, notably
paragraphs 7.1148 and 7.1165.2322 We therefore do not accept the European Union's assertion that the
Panel's predominance approach was unexpected because it appeared only in the Final Report. In any

2319European Union's appellant's submission, paras. 235 and 258. The European Union confirmed at
the oral hearing that it is presenting a single due process claim consisting of two arguments.
2320Appellate Body Report, Thailand – Cigarettes (Philippines), para. 147.
2321European Union's appellant's submission, para. 258. The European Union clarified at the oral
hearing that its claim concerning the Panel's finding in paragraph 7.1701 of the Final Report relates exclusively
to whether the Panel violated due process, and not whethe r the Panel acted inconsistently with Article 15 of the
DSU.
2322In the Interim Report, the Panel had set out that it would take into account only two USDOD
RDT&E programmes—namely, the ManTech and DUS& T programmes—since they "were funded through
{assistance instruments}". (Interim Report, para. 7.1701) In the Final Report, the Panel confirmed this approach
but clarified that the reason for considering only th e ManTech and DUS&T programmes in its analysis was
because they "funded predominantly assistance instruments". (Panel Report , para. 7.1701 (emphasis added)) It
is true that the Panel added the word "predominantly" to qualify its statement in the Interim Report that the
ManTech and DUS&T programmes funded assistance instruments. Yet the Panel had previously found in
paragraph 7.1165—a paragraph that was identical in both the Interim and the Final Report—that the ManTech
and DUS&T programmes were "funded primarily if not exclusively through cooperative agreements or other
cost-shared 'assistance instruments'". (emphasis added) Thus, even at the interim review stage, the
European Communities would have been aware of the Pa nel's view that these two programmes "primarily"
funded assistance instruments, as opposed to procurement contracts.
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event, although a panel must fully explore with the pa rties all pertinent issues arising in the dispute
over the course of the proceedings, th is does not imply that it is requi red to engage with the parties
upon the findings and conclusions that it intends to adopt in resolving the dispute.
2323 Indeed, it would
be impossible to do so, in particular since the panel's views may evolve over the course of the
proceedings. Accordingly, we do not agree with th e European Union that the mere inclusion of new
language in paragraph 7.1701 of th e Final Report means that the Panel acted inconsistently with
Article 11 of the DSU by failing to provide the parti es with an opportunity to comment on the alleged
"novel" approach in paragraph 7.1701 of the Final Report.
1138. The European Union further contends that th e Panel failed to comply with its duties under
Article 11 of the DSU by not seeking out factual information from the United States that would have
enabled it to "consider the evidence necessary to reach a conclusion based on {the predominance}
theory".
2324 We observe that, under Article 13 of the DSU, panels are endowed with the authority to
request information from relevant sources, including from WTO Members. 2325 We recall, moreover,
that the exercise of this authority may prove "i ndispensably necessary" to enable a panel to
objectively assess the matter before it. 2326 Furthermore, a panel ma y need to seek information
"'in order to evaluate evidence already before it' so as to make an objective assessment of whether the
complaining party has established a prima facie case".2327
1139. In our view, the extent to which Article 11 of the DSU may require a panel to exercise its
authority to seek out further information is a function of the particular facts and circumstances of each
dispute. It is of course indisputable that par ties carry the burden of adducing evidence in support of
their claims or defences.2328 Indeed, it is because the parties have such a burden that we can conceive
of circumstances in which a party cannot reasonably be expected to meet that burden by adducing all
relevant evidence required to make out its case, most notably when that information is in the exclusive
possession of the opposing or a third party. In such circumstances, a panel may be unable to make an
objective assessment of the matter without exercising its authority under Article 13 of the DSU to

2323We note that, even if a panel is not required to ventilate its intended analysis in advance of
rendering its decision, a panel should not, in adopting an approach that departs radically from the cases put
forward by the parties, "leave it to the parties to gue ss what proof it will require". (Appellate Body Report,
US – Continued Zeroing, para. 347)
2324European Union's appellant's submission, para. 258.
2326Appellate Body Report, Japan – Agricultural Products II , para. 127 (quoting Appellate Body
Report, US – Shrimp, paras. 104 and 106).
2327Appellate Body Report, US – Continued Zeroing , para. 347 (quoting Appellate Body Report,
Canada – Aircraft, para. 192).
2328Appellate Body Report, EC – Hormones, para. 109 (referring to Appellate Body Report, US – Wool
Shirts and Blouses, pp. 14-16, DSR 1997:I, 323, at 335-338).
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seek out that information, in particular if the pa rty that needs this evidence can show that it has
diligently exhausted all means to acquire it, to the extent such means exist.
1140. We note, in this regard, that one aspect of en suring that the proceedings are fairly conducted
is that each party must be entitled to know the case that it has to make or to answer and must be
afforded a fair and reasonable opportunity to do so. In general, panels are best situated to determine
how this should be accomplished in the particular circumstances of each case
2329, including through
the exercise of their authority to seek informati on. The use of this authority, however, is not
untrammelled. In considering whether to exerci se its authority under Article 13 of the DSU—in
particular when a party has made an explicit requ est that it do so—a panel should have regard to
considerations such as what information is need ed to complete the record, whose possession it lies
within, what other reasonable means might be u sed to procure it, why it has not been produced,
whether it is fair to request the party in possession of the information to submit it, and whether the
information or evidence in question is likely to be necessary to ensure due process and a proper
adjudication of the relevant claim(s).
1141. The issue before us is whether, in the circumst ances of this dispute, the Panel was required to
request certain information from the United States be fore applying the predominance test articulated
in paragraph 7.1701 of the Final Report. As noted above, the Panel decided not to include the effects
of the USDOD RDT&E programmes—save for ManTech and DUS&T—in its analysis of adverse
effects on the basis that there was insufficient evidence establishing that these programmes funded
predominantly assistance instruments, as opposed to procurement contracts. This was the
consequence of the Panel's earlier decision to cond uct an analysis based on the type of contract
used—that is, to distinguish between the ch aracterization under Article 1.1(a)(1) of the
SCM Agreement of procurement contracts and that of assi stance instruments—ra ther than conducting
a programme-based analysis of the USDOD RDT&E pr ogrammes. Although it decided to pursue an
analysis based on contract type, the Panel did not exercise its authority under Article 13 of the DSU to
request information and evidence from the parties re garding the extent to which different contract
types were used under each programme.
2330
1142. We also note certain other circumstances of this dispute that we consider relevant to the issue
before us. We recall, for example, the Panel's Pr eliminary Ruling of 30 July 2007, in which the Panel
rejected requests by the European Communities to find that an Annex V procedure had been initiated

2329Appellate Body Report, Thailand – Cigarettes (Philippines), para. 150.
2330Although the Panel appears to have posed certain questions regarding the differences between
assistance instruments and procurement contracts, these enquiries related to the issue of financial contribution
and benefit under Article 1 of the SCM Agreement. (See, for instance, Panel Ques tions 19, 20, 154, 191, 192,
195, and 321)
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or, in the alternative, to exercise its authorit y under Article 13 of the DSU to seek out certain
information from the United States.
2331 The European Communities had attached to its request for
preliminary rulings questions that it had sought to pose to the United States in an Annex V procedure.
In its alternative request, the Eu ropean Communities sought to have the Panel pose these questions to
the United States. The European Communities explicitly asked for a "list of all contracts … involving
Boeing or {McDonnell Douglas} from FY 1991 thr ough present" related to the USDOD RDT&E
programmes at issue including an indication of "t he nature or subject" of each such contract. 2332 The
European Communities further requ ested the contracts themselves. 2333 M o r e o v e r , t h e
European Communities repeatedly argued before the Panel that there was information in the
United States' exclusive possession that was central to its subsidy and adverse effects claims regarding
the USDOD RTD&E programmes. 2334 The Panel, however, did not advert to any of these
circumstances in finding that "the European Commu nities ha{d} not advanced sufficient argument or
evidence regarding the effects of assistance in struments funded through RTD&E programmes other
than in relation to the ManTech and DUS&T programmes".2335 Nor did the Panel acknowledge in any
way that the "insufficien t evidence on the record" 2336 was at least in part the consequence of its own
passivity.
1143. In short, the Panel's use of a contract-type analys is meant that information as to the extent to
which assistance instruments were used under each of the USDOD programmes was critical to enable
application of the test that it had articulated. Information regarding the extent to which different kinds
of contracts were used under each of the USDOD programmes was within the exclusive possession of
the United States. The European Communities had sought to obtain this information and, when it was
unable to do so, had explicitly requested the Panel to do so. In such circumstances, the only way in

2331See Part V of this Report.
2332European Communities' questions for the United States pursuant to Annex V of the SCM Agreement
(Panel Exhibit EC-1), questions 127 and 128.
2333See, for example, European Communities' questions for the United States pursuant to Annex V of
the SCM Agreement (Panel Exhibit EC-1), questions 130, 131, and 138. In response to the
European Communities' request for the Panel to pose, under Article 13 of the DSU, all or some of the questions
originally intended under Annex V to the United States, the Panel declined to do so on the grounds that:
... the Panel does not consider it necessary or appropriate to use its discretion under
Article 13 of the DSU to remedy the par ties' inability to reach agreement on the
initiation of an Annex V procedure, or to remedy the parties' inability to reach
agreement on a means for transferring the information obtained during the DS317
Annex V procedure to the present Panel.
(Panel Report, para. 7.23)
2334We observe that, on numerous occasions before the Panel, the European Communities voiced its
concern that critical evidence in relation to, inter alia, the USDOD RDT&E programmes was exclusively in the
United States' possession. See, for instance, Panel Report, paras. 7.1056, 7.1103, and 7.1203, where the
European Communities maintained that information be fore the Panel regarding the NASA and USDOD R&D
measures was insufficient to make out its claims "unless the United States disclose{d} evidence".
2335Panel Report, para. 7.1701.
2336Panel Report, para. 7.1701.
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which the Panel could have afforded the European Communities a fair opportunity to produce
evidence necessary to make out its prima facie case was through the exercise of its authority under
Article 13 of the DSU by requesting the United States to submit the information that would have
enabled the Panel to assess the claim of serious prejudice before it using its chosen approach.
1144. Overall, we consider that the particular circum stances of this dispute demanded that the Panel
assume an active role in pursuing a train of inquiry that would enable it to apply its predominance
approach. In failing to seek additional informa tion regarding the use of assistance instruments under
all of the USDOD programmes, the Panel compro mised its ability to assess properly whether the
effects of all 23 RDT&E programmes, and not only ManTech & DUS&T, caused adverse effects to
the interests of the European Communities. Had th e Panel sought information from the United States
regarding the extent to which each USDOD RD T&E programme was funded by assistance
instruments, as opposed to procurement contracts, then it would have been able to determine the
extent to which those programmes funded assist ance instruments, as opposed to procurement
contracts. The Panel could have done so either on the basis of information provided by the
United States or, perhaps, in the event that such information was not forthcoming, on the basis of
adverse inferences.
1145. In the light of the above, we find that, by failing to exercise its authority to seek out relevant
information to satisfy its predominance approach in assessing the claim before it, the Panel acted
inconsistently with its obligation under Article 11 of the DSU to ma ke an objective assessment of the
matter before it in finding, in paragraph 7.1701 of the Panel Report, that there was "insufficient
evidence on the record that {the USDOD RDT&E programmes other than ManTech and DUS&T}
funded predominantly assistance inst ruments, as opposed to procurement contracts, or a mixture of
assistance instruments and procurement contracts". Th e European Union requests that, if we find that
the Panel acted inconsistently with Article 11 of the DSU, we reverse the Panel's finding, in
paragraph 7.1701 of the Panel Report, that "the {US}DOD RDT&E programmes (other than
ManTech and DUS&T) do not cause the same effects as the other aeronautics R&D subsidies" at least
to the extent that those remaining USDOD RDT&E programmes are funded through assistance
instruments.
2337 We do not, however, see that the Panel made any such finding in that paragraph. To
the contrary, we read the Panel as having r ecognized that the other 21 USDOD RDT&E programmes
may well also have had adverse effects to the extent that they were funded through assistance
instruments. Accordingly, there is no finding for us to reverse, and the European Union does not, in
any event, seek to have us complete the analysis.

2337European Union's appellant's submission, para. 259.
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D. Price Effects
1146. The United States also appeals the Panel's findings, in paragraph 8.3(a)(ii) and (iii) of its
Report
2338, that:
(ii) the effects of the FSC/ETI subsidies and the B&O tax
subsidies provided by the State of Washington under {House Bill}
2294 are significant price suppression, significant lost sales and
displacement and impedance of exports from third country markets,
with respect to the 100-200 seat single-aisle LCA product market;
{and}
(iii) the effects of the FSC/ETI subsidies and the B&O tax
subsidies provided by the State of Washington under {House Bill}
2294 and by the City of Everett are significant price suppression,
significant lost sales and displacement and impedance of exports
from third country markets, with respect to the 300-400 seat wide-
body LCA product market{.}
1147. The United States requests us to reverse these fi ndings on the grounds that, in reaching them,
the Panel erred in its interpretation and applica tion of Articles 5(c) and 6.3(b) and (c) of the
SCM Agreement.
2339 According to the United States, the Panel failed to undertake a proper analysis of
these subsidies, and therefore did not establish a genuine and substantial relationship of cause and
effect between the subsidies and the adverse eff ects alleged by the European Communities. The
United States also argues that the Panel committe d specific errors in reaching its findings of
significant price suppression, significant lost sales, and displacement and impedance.
1148. The European Union responds that each of these al legations by the United States is baseless.
In the view of the European Union, the United Stat es is improperly using its appeal to repeat its
arguments before the Panel, including with respect to the evidence that it advanced unsuccessfully.
The European Union also maintains that the United States' appeal presents an incomplete account of
the Panel's analysis and findings. The European Union considers that, contrary to what the
United States claims, the Panel reached findings th at complied with the relevant requirements of
Articles 5(c) and 6.3(b) and (c) of the SCM Agreement.

2338See also Panel Report, paras. 7.1823, 7.1833, and 7.1854(b) and (c).
2339These provisions are set out in full in section X.B.7 of this Report.
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1149. The United States' appeal thus concerns the Panel's analysis of the price effects
2340 of the tied
tax subsidies—namely, the FSC/ETI subsidies and th e Washington State and the City of Everett B&O
tax rate reductions. The Panel's finding that the price effects of these subsidies led to serious
prejudice within the meaning of Articles 5(c) and 6.3(b) and (c) of the SCM Agreement2341, and the
United States' appeal, are limited to the 100-200 seat and 300-400 seat LCA markets. Our analysis of
the issues relating to the price effects of the tied tax subsidies likewise focuses only on these two
product markets.
1150. In order to evaluate the United States' claims of error, we consider it useful, first, to set out, in
subsection 1, certain backgr ound on the 100-200 seat and 300-400 seat LCA markets. In
subsection 2, we outline the structure of the Euro pean Communities' claim before the Panel. In
subsection 3, we recount the Panel's analysis and find ings regarding the tied tax subsidies. Finally, in
subsection 4, we address the United States' appeal.
1. Background on the 100-200 Seat and 300-400 Seat LCA Markets
1151. We set out below certain basic features rega rding the two relevant LCA product markets on
the basis of common cause facts on the Panel record.

2340We note that the concept of "price effects", as used in this dispute, should be distinguished from the
concept of "price suppression" under Article 6.3(c) of the SCM Agreement. When the European Communities
referred to the "price effects" of subsidies before the Pa nel, it was referring to the effects of the subsidies on
Boeing's LCA prices. (Panel Report, paras. 4.305, 7.1598, 7. 1697, and 7.1699; see also footnote 3388 to
para. 7.1613 and footnote 4139 to para. 6 of Appendix VII.F.2 – The Cabral Model, p. 758) The
European Communities further argued that, "through th e mechanism of price effects", the subsidies caused
various of the market phenomena set out in Article 6.3 of the SCM Agreement, including significant price
suppression within the meaning of Article 6.3(c). ( Ibid., para. 4.314) As did the Panel, we use the term "price
effects" to refer to the effects of the subsidies on Boeing's LCA prices.
2341Although the European Communities had argued that these subsidies caused serious prejudice by
reason of their price effects in all three of the relevant LCA pro duct markets, the Panel was not satisfied that
these subsidies caused significant price suppression, significant lost sales, or displacement or impedance in the
200-300 seat LCA market. As explained supra, footnote 1882, the European Communities did not claim that
the FSC/ETI subsidies had adverse effects in the 200-300 seat LCA market, and the Panel conducted its analysis
on the basis that these subsidies had no effects in that pr oduct market. Therefore, in assessing the effects of the
tied tax subsidies in the 200-300 seat LCA market, the Pa nel considered the price effects of only the B&O tax
rate reductions, and not of the FSC/ETI subsidies. The Panel found that there was "insufficient evidence … to
conclude that {the B&O tax rate reductions} are of a magnitude that would enable them, on their own, to have
such an effect on Boeing's prices of the 787 as would lead to a finding {of serious prejudice} in the 200-300 seat
wide-body market". (Ibid., para. 7.1824) The European Union has appealed this finding, and contends that the
Panel erred in failing to undertake an assessment of the collective effects of the aeronautics R&D subsidies and
the B&O tax rate reductions in the 200-300 seat LCA mark et. Our evaluation of this claim of error on appeal is
set out in section X.E of this Report.
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(a) 100-200 seat LCA market
1152. This product market consists of single-aisle ai rcraft with a capacity of 100 to 200 passengers
in a two-class configuration (or the respective car go equivalent), and flown on routes with a short to
medium range.
2342 The relevant aircraft families meeting these specifications include the
Boeing 737NG and the Airbus A320.2343
1153. The parties accepted that the 737NG and A320 are in direct competition. 2344 They further
acknowledged that price was a major factor infl uencing sales campaign outcomes in this product
market, although in some campaigns, differences in capacity, operating costs, or delivery dates may
have been decisive. 2345 In late 2004 or early 2005, Boeing a ltered its pricing strategy and became
more "aggressive" on price.2346
1154. In 2006, the list prices of the A320 family ranged from $50,200,000 to $79,400,000, while
those of the 737NG family ranged from $47,000,000 to $70,000,000. 2347 Based on data supplied by
the parties, the overall size of the market for 100- 200 seat LCA, as well as Boeing's share of that
market in terms of orders, increased over the reference period.2348

2342Panel Report, para. 7.1669.
2343Panel Report, para. 7.1670.
2344The European Communities stated that the 737NG and A320 families "closely resemble{d}" one
another and competed on the basis of their "size, number of seats, range, and other characteristics"
(European Communities' first written submission to the Panel, para. 1167); "competed equally on technical and
performance characteristics" (European Communities' re sponse to Panel Question 81, para. 324); and are
characterized by "very close substitutability" (Europea n Communities' first written submission to the Panel,
para. 1506) and "close inter-changeability" (European Communities' comments on the United States' response to
Panel Question 282, para. 433). The United States also recognized the close competition between the A320 and
737NG. (See, for example, United States' first written submission to the Panel, paras. 1027-1038)
2345Panel Report, para. 7.1694; European Communitie s' response to Panel Question 81, paras. 323
and 324; United States' first written submission to the Panel, paras. 1027-1038; United States' comments on the
European Communities' responses to Panel Question 287, para. 532 and Panel Question 288, para. 535.
2346Panel Report, Appendix VII.F.2 – The Cabral Model, p. 777, para. 68 and footnote 4250 thereto.
2347List Price, Airclaims CASE database, query as of 23 November 2006 (Panel Exhibit EC-663).
These price ranges reflect the fact that the A320 and 7 37NG families were composed of differentiated models.
As explained supra, para. 907, due to credits and price concessions offered to customers by LCA manufacturers,
the airframe prices negotiated at the time LCA are ordered are typically lower than list prices.
2348According to the United States, the total number of LCA ordered in the 100-200 seat LCA market
during the reference period was as follows: 457 in 2004; 1,410 in 2005; and 1,558 in 2006. Boeing's share of
these orders was: 32% in 2004; 40% in 2005; and 47% in 2006. (United States' first written submission to the
Panel, para. 1095) The European Communities, however, a sserted that Boeing's world market share of orders
increased between 2005 and 2006 from 47% to 52%. (E uropean Communities' comments on the United States'
response to Panel Question 299, para. 551) The United St ates additionally claimed that, in terms of deliveries,
Boeing's market share was: 46% in 2004; 42% in 2005; and 47% in 2006. (United States' first written
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(b) 300-400 seat LCA market
1155. This product market consists of twin-aisle aircra ft with a capacity of 300 to 400 passengers in
a three-class configuration (or th e respective cargo equivalent), a nd flown on routes with a long to
ultra-long range.
2349 The relevant aircraft families meeting these specifications include the
Boeing 777 and the Airbus A340.2350
1156. Despite the similarities of the 777 and A340 airc raft in terms of seating, range, and other
characteristics2351, the two-engine 777 is more fuel efficient than the four-engine A340. 2352 T h i s
advantage was accentuated when fuel prices increased during the 2004-2006 period.2353
1157. In 2006, the list prices of the A340 family ranged from $192,800,000 to $222,400,000, while
those of the 777 family ranged from $190,000,000 to $237,000,000.2354 Based on data supplied by the
parties, the overall size of the market for 300-400 seat LCA, as well as Boeing's share of that market
in terms of orders, increased over the reference period from 2004 to 2006, peaking in 2005.2355
2. The European Communities' Price Effects Claim before the Panel
1158. Before we turn to the Panel's findings and the United States' appeal, we consider it useful to
outline the structure of the European Communities' price effects claim before the Panel.

2349Panel Report, para. 7.1669.
2350Panel Report, para. 7.1670. The European Comm unities also advanced a claim of threat of
significant price suppression in the 300-400 seat LCA market with respect to future orders of the
A350XWB-900/1000 aircraft. ( Ibid., para. 7.1595) The Panel exercised ju dicial economy with respect to this
claim. (Ibid., para. 7.1851)
2351European Communities' first written submission to the Panel, para. 1180.
2352European Communities' response to Panel Question 81, paras. 330 and 331; United States' first
written submission to the Panel, paras. 1117 and 1139, referring to estimates that the 777 is 24% more fuel
efficient than the A340.
2353European Communities' response to Panel Question 81, paras. 331 and 334; United States' first
written submission to the Panel, paras. 715, 1139, and 11 40, and para. 1113, referring to estimates that fuel
prices increased by 125% between 2004 and 2006.
2354List Price, Airclaims CASE database, query as of 23 November 2006 (Panel Exhibit EC-663).
These price ranges reflect the fact that the A340 and 77 7 families were composed of differentiated models. As
noted earlier, however, actual airframe prices are often lower than the base list price. (See supra, para. 907)
2355According to the United States, the total number of LCA ordered in the 300-400 seat LCA market
during the reference period was as follows: 70 in 2004; 169 in 2005; and 92 in 2006. Boeing's share of these
orders was: 60% in 2004; 92% in 2005; and 84% in 2006. (Panel Exhibit US-364, containing order statistics
for the 777 and A340, 1990-2006) A graphical depiction of world market share supplied by the
European Communities appears consistent with this da ta. (European Communities' first written submission to
the Panel, para. 1626) The United States additionally claimed that, in terms of deliveries, Boeing's market share
was: 56% in 2004; 63% in 2005; and 73% in 2006. (United States' first written submission to the Panel,
para. 1171)
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1159. In presenting its claim of serious prejudice to the Panel in respect of the 100-200 seat and
300-400 seat LCA markets, the European Communiti es argued that all of the subsidies benefiting
Boeing's 737NG and 777 families "have one principal effect: they allow Boeing to lower the prices at
which it offers {these aircraft} (the 'price effects')".
2356 According to the European Communities, "the
evidence shows that since 2004, Boei ng has focused its US subsidy benefits on offering exceptionally
low prices". 2357 As a result of these price effects, the European Communities asserted, Airbus has
experienced displacement and impedance within th e meaning of Article 6.3(b), and significant price
suppression and significant lost sales within the meaning of Article 6.3(c) of the SCM Agreement.
1160. The European Communities structured its claim by addressing: (i) the nature of the subsidies;
(ii) the magnitude of the subsidies; (iii) the pri ce effects of the subsidies; and (iv) evidence from
specific sales campaigns.
1161. With regard to the nature of the subsidi es, the European Communities argued that the
"structure, design, and operation" 2358 of the subsidies operate through one of two price mechanisms.
One group of subsidies—the tied tax subsidies—has the effect of lowering the taxes and fees paid by
Boeing with respect to the production and sale of LCA, rendering receipt of these subsidies contingent
on the production and sale of individual LCA. The European Communities thus claimed that the tied
tax subsidies directly reduce Boeing's marginal unit costs for the production and sale of individual
LCA.
2359 The European Communities maintained that the tied tax subsidies "have particularly strong
price effects, allowing Boeing to lower its LCA pr ices by $1 for each dollar of subsidies received".2360
The European Communities further maintained that, because the tie d tax subsidies are prohibited
subsidies, they are "particularly pernicious in causing adverse effects to EC interests given their
promotion of Boeing LCA exports outside the United States". 2361 The other subsidies—that is, those
other than the tied tax subsidies 2362—are not triggered by the produc tion and sale of individual LCA.

2356European Communities' first written submission to the Panel, paras. 1471 and 1565.
2357European Communities' first written submission to the Panel, paras. 1471 and 1565.
2358European Communities' first written submission to the Panel, paras. 1474 and 1568.
2359European Communities' first written submission to the Panel, para. 1234.
2360European Communities' first written submission to the Panel, paras. 1477 and 1571.
2361European Communities' first written submission to the Panel, paras. 1477 and 1571.
2362These subsidies consist of the following: (i) the ae ronautics R&D subsidies; (ii) the property and
sales tax abatements provided to Boeing pursuant to I RBs issued by the City of Wichita, Kansas; (iii) the
Washington State B&O tax credits fo r preproduction development, computer software and hardware, and
property taxes; (iv) the Washington State sales and use tax exemptions for computer hardware, peripherals, and
software; (v) the Washington State workforce development programme and Employment Resource Center; (vi)
the reimbursement of a portion of Boeing's relocation expenses by the State of Illinois; (vii) the 15-year EDGE
tax credits provided by the State of Illinois; (viii) th e abatement or refund of a portion of Boeing's property
taxes provided by the State of Illinois; and (ix) the payment to retire the lease of the previous tenant of Boeing's
new headquarters building in Chicago.
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Rather, these subsidies are considered "fungible"
2363 resources that provide Boeing with additional
cash flow "that Boeing can invest in lower prices and additional R&D so as to lower its costs of
research, development, production, and sale of {} LCA".2364
1162. The European Communities also submitted that the magnitude of the subsidies was "large
enough to have adversely impacted Airbus"2365, and that this was so whether magnitude was viewed in
terms of all LCA orders within a particular product market, or only LCA orders from competitive
campaigns. The European Communities distinguish ed between "competitive" and "non-competitive"
sales campaigns, defining a competitive campai gn as one in which both Airbus and Boeing are
actively involved.2366 The European Communities argued that Boeing's incentive to price down LCA
is "far greater in competitive campai gns than in non-competitive campaigns". 2367 T h e
European Communities thus calculated the magnit ude of per-LCA subsidies on the basis of all
orders2368, as well as on the basis of only competitive orders. 2369 The European Communities
considered that "these represent two extremes, wi th the likely reality being that Boeing uses its
subsidy benefits to price down its LCA in bot h competitive and non-competitive campaigns, but does
so to a greater extent in competitive campaigns".2370

2363European Communities' first written submission to the Panel, para. 1279.
2364European Communities' first written submission to the Panel, paras. 1480 and 1574.
2365European Communities' first written submission to the Panel, paras. 1485 and 1583.
2366European Communities' first written submission to the Panel, para. 1222: "the
European Communities uses the term 'competitive campaign' to mean a campaign in which both Airbus and
Boeing were actively involved, and where Airbus [ *** ]."
2367European Communities' first written submission to the Panel, para. 1224: "{G}iven the economies
of scale that result from a high order volume, and the price-sensitive nature of campaigns involving substitutable
Airbus and Boeing LCA in a highly-competitive duopolis tic market, Boeing has every incentive to lower its
prices to try to win sales at Airbus' expense in competitive campaigns."
2368Attributing the total amount of subsidies to all campai gns, the European Communities calculated a
per-LCA magnitude during the reference period of $[***] million (approximately [***]% of aircraft price) in
the 100-200 seat LCA market, and $[***] million (approxima tely [***]% of aircraft price) in the 300-400 seat
LCA market. (European Communities' first written submission to the Panel, paras. 1486 and 1590 (referring to
International Trade Resources LLC, "Calculating on a Per-Aircraft Basis the Magnitude of the Subsidies
Provided to US Large Civil Aircraft" (20 February 2007) (Panel Exhibit EC-13)); see also ibid., Annex E –
737NG Campaign Annex (HSBI), paras. 58 and 133; and Annex F – 777 Campaign Annex (HSBI), paras. 32
and 51)
2369Attributing the total amount of subsidies to only competitive campaigns, the European Communities
calculated the per-LCA magnitude during the reference period at $[***] million (approximately [***]% of
aircraft price) in the 100-200 seat LCA market, and $[***] million (approximately [***]% of aircraft price) in
the 300-400 seat LCA market. (European Communities' fi rst written submission to the Panel, paras. 1486 and
1590 (referring to International Trade Resources LLC, "Calculating on a Per-Aircraft Basis the Magnitude of the
Subsidies Provided to US Large Civil Aircraft" (20 February 2007) (Panel Exhibit EC-13)); see also ibid.,
Annex E – 737NG Campaign Annex (HSBI), paras. 60 and 134; and Annex F – 777 Campaign Annex (HSBI),
paras. 33 and 53)
2370European Communities' first written submission to the Panel, paras. 1485 and 1583.
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1163. The European Communities argued that, whether vi ewed in terms of all campaigns or only
competitive campaigns, the magnitude of the United St ates' subsidies shows "the extent to which the
full use of these subsidies {has} the potential to cause significant price suppression of Airbus' A320
family LCA".
2371 Likewise, for the Airbus A340, the European Communities made arguments based
on the assumption that Boeing "uses all of its subsidy benefits to reduce prices for all ordered 777
family LCA by an identical amount".2372
1164. The European Communities then presented its ar guments regarding the price effects of the
various US subsidies, taken together. In doing so, the European Communities distinguished between,
on the one hand, the price effects of the tied tax subs idies and, on the other hand, the price effects of
the subsidies alleged to increase Boeing's non-ope rating cash flow. As the European Communities
explained, the tied tax subsidies "have a price eff ect commensurate with their amount" such that each
subsidy dollar "has the effect of reducing the price of a Boeing {} LCA by exactly $1". 2373 As for the
subsidies alleged to increase Boeing's cash fl ow, the European Commu nities introduced the
Cabral Report, which relied on an economic model to quantify the extent to which Boeing was able to
reduce its LCA prices in 2004-2006 as a result of these subsidies.2374
1165. Finally, the European Communities set out evid ence of individual sales campaigns in HSBI
annexes to its first written submission. The ev idence set out in these annexes was intended to
illustrate and support the claim that Boeing's s ubsidy-enabled low prices have caused serious
prejudice. Annex E identifies 11 sales campaigns in the 100-200 seat LCA market—five of which

2371European Communities' first written submission to the Panel, para. 1503. On the basis of its
calculations of the per-LCA subsidy magnitudes, the European Communities depicted in several graphs what it
considered to be the counterfactual prices for the A3 20 in the absence of subsidies by adding the per-LCA
subsidy amount to indexed prices for those LCA. (Ibid., paras. 1501-1505)
2372European Communities' first written submission to the Panel, para. 1597. The European
Communities also depicted in several graphs what it considered to be the counterfactual prices for the A340 in
the absence of subsidies by adding the per-LCA subsidy amount to indexed prices for those LCA. ( Ibid.,
paras. 1597-1601)
2373European Communities' first written submission to the Panel, paras. 1490 and 1588.
2374According to the Cabral Report, of every subsidy dollar that increases Boeing's cash flow: 15 cents
would be allocated to increased dividends; 12 cents towards more aggressive pricing to advance down the
learning curve; 47 cents towards more aggressive pricing to overcome switching costs; and 26 cents towards
R&D. (European Communities' first written submission to the Panel, paras. 1315 and 1321) The Cabral Report
calculated that the price effect generated by the $19.1 billion of subsidies, taken together, both across-the-board,
as well as when those price effects were concentrated in competitive sales campaigns. According to those
calculations, during the reference period, the across- the-board price effects amounted to approximately
$1 million per 737, and just over $2 million per 777. The Cabral Report further estimated that, if the price
effects were applied only in compe titive sales campaigns, they would amount to roughly $2.5 million per 737,
and $5.5-6 million per 777. (European Communities' first written submission to the Panel, figures 22 and 23,
referred to in Panel Report, Appendix VII.F.2 – The Cabral Model, p. 758, footnote 4139 to para. 6; Cabral
Report, supra, footnote 2242)
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were offered in support of the European Communities' claim of significant lost sales
2375; and six that
were advanced in support of its claim of significant price suppression. 2376 Annex F identifies four
sales campaigns in the 300-400 seat LCA market—thr ee of which were offered in support of the
European Communities' claim of significant lost sales2377; and one that was advanced in support of its
claim of significant price suppression.2378
3. The Panel's Analysis and Findings
1166. We now set out the Panel's analysis and findings with regard to whether the price effects of
the challenged subsidies have caused serious prejudice.
1167. We recall aspects of the Panel's overall approach to its adverse effects analysis. First, we note
that the Panel indicated that it would conduct a "unitary" approach to establishing causation, in which
the effects of the subsidies are not assessed in isolati on, but rather as part of an integrated analysis of
causation.
2379 Second, the Panel stated that it would c onduct a counterfactual analysis, and that it
would do so in two stages by examining the effect s of the subsidies on Boeing's prices, and, as a
consequence, on Airbus' prices and sales in the specific product markets. 2380 Third, the Panel added
that it would undertake an evaluation of possible non-attribution factors at both stages of its causation
analysis.
2381 The Panel considered that proceeding with the approach outlined above would enable it
to determine whether "there is a genuine and substantial relationship of cause and effect between the
subsidy in question and the displacement or impeda nce, significant lost sales, or significant price
suppression".2382

2375Panel Report, para. 7.1622 and footnote 3412 thereto. The lost sales evidence in the 100-200 seat
LCA market consisted of the following sales campaigns: Ryanair (2000-2002); Japan Airlines (2005);
Singapore Airline Leasing Enterprise (2005); Lion Air (2005); and DBA (2005). The European Communities
also explained that these campaigns were evidence of displacement and impedance of A320 exports in the
third-country markets of Japan, Singapore, and Indonesia.
2376Panel Report, para. 7.1622 and footnote 3410 thereto. The price suppression evidence in the
100-200 seat LCA market consisted of the following sales campaigns: easyJet (2002); Air Berlin (2004);
Iberia (2005); Aegean (2005); Air Asia (2005); and Hamburg International (2005).
2377Panel Report, para. 7.1622 and footnote 3414 thereto. The lost sales evidence in the 300-400 seat
LCA market consisted of the following sales campaigns: Singapore Airlines (2004); Air New Zealand (2004);
and Cathay Pacific (2005). The European Communities al so explained that these campaigns were evidence of
displacement and impedance of A340 exports in the th ird-country markets of Singapore, New Zealand, and
Hong Kong, China.
2378Panel Report, para. 7.1622. The price suppression evidence in the 300- 400 seat LCA market
consisted of a single sales campaign involving Lufthansa (2004).
2379Panel Report, para. 7.1658.
2381Panel Report, para. 7.1660.
2382Panel Report, para. 7.1662.
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1168. The Panel explained that the European Commun ities' analytical framework for evaluating the
effects of the subsidies on Boeing' s pricing behaviour, and conseque ntly on Airbus' prices and sales,
focused on several key factors, namely:
(i) the nature of the subsidies, in terms of their structure, design and
operation; (ii) an economic m odel developed by Professor Luís
Cabral concerning the effect of what he refers to as "development
subsidies", which purports to quantify the degree to which Boeing
was able to reduce its LCA prices in 2004-2006; (iii) the subsidy
amounts and "magnitudes"; (iv) th e conditions of competition in the
LCA markets; (v) the financial condition, or "economic viability" of
Boeing's LCA division in the absence of the subsidy amounts; and
(vi) selected individual LCA sales campaigns in each of the three
LCA product markets, which are alleged to demonstrate the serious
prejudice in terms of Airbus' prices and sales.
2383
1169. The Panel noted that, although the European Co mmunities had challenged all of the subsidies
by reason of their price effects, it would analyze th e price effects of the tied tax subsidies separately
from the price effects of the other subsidies. 2384 The Panel did not accept the arguments and evidence
of the European Communities with respect to items (ii) 2385 and (v) 2386 quoted above. Thus, in its
analysis of the tied tax subsidies, the Panel was le ft to consider the European Communities' evidence

2383Panel Report, para. 7.1611.
2384Panel Report, para. 7.1800. The Panel later concluded that, in the light of its findings as to the
technology effects of the aeronautics R&D subsidies, it would not analyze the price effects of that group of
subsidies because to do so would amount to "over-counting". (Ibid., para. 7.1826)
2385With respect to the Cabral Report, the Panel concluded as follows:
... Professor Cabral's model does not su pport the existence of a causal link
between the receipt by Boeing of "development subsidies", and lower
Boeing LCA pricing. The Panel is not convinced that the assumptions
underlying Professor Cabral's model are an appropriate representation of
Boeing's actual commercial behaviour . As we are unable to accept the
assumptions on which the model is based, we do not consider the model to
provide evidentiary support for the European Communities' argument that
Boeing's receipt of the subsidies enables it to lower the prices of its LCA.
(Panel Report, Appendix VII.F.2 – The Cabral Model, p. 780, para. 76)
2386With respect to the European Communities' argument and evidence that, without the subsidies,
Boeing would have not been economically viable unless it altered its prices or product development behaviour,
the Panel stated that it was "not persuaded that the European Communities has demonstrated that Boeing
inherently lacked the financial means to price and develop its LCA in the manner in which it did". (Panel
Report, para. 7.1759; see also paras. 7.1829-7.1831) The Panel explained that the parties had each presented
"complex financial information" on the issue of "whether the Boeing LCA division's pricing and product
development behaviour would have be en possible had it not received an alleged $19.1 billion in subsidies
between 1989 and 2006". (Ibid., para. 7.1830) The Panel considered that, in the light of its finding that the total
amount of subsidies received by Boeing over this period was not the $19.1 billion amou nt alleged, but a much
smaller amount, "the argument that Boeing's LCA division would not have been 'economically viable' in the
absence of the subsidies unless it altered its prices or product development behaviour becomes untenable,
whichever basis for assessing economic viability is used." (Ibid., para. 7.1831)
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as it related to the nature and the amount
2387 of the tied tax subsidies, the conditions of competition in
the LCA market, and the evidence of individual sales campaigns as set out in Annexes E and F to the
European Communities' first written submission.
1170. The Panel examined the two categories of tied ta x subsidies. The Panel noted that FSC/ETI
exemptions and exclusions are realized on the deliv ery of every LCA that Boeing exports, as well as
on LCA that Boeing produces and sells to domes tic carriers and leasing companies for use
predominantly on foreign routes. 2388 The FSC/ETI subsidies thus rela te directly to revenue realized
from export LCA sales and operate to reduce the reve nues that were subject to taxation, thereby
lowering Boeing's taxes and increasing its after-tax profits. 2389 The Panel further noted that the B&O
tax rate reductions consis t of tax incentives designed to reduce Boeing's cost structure and improve
Boeing's competitiveness, and that they apply to the production and sale of each LCA manufactured
in Washington State.2390
1171. The Panel considered that it was appropriate to aggregate the FSC/ETI subsidies and the
B&O tax rate reductions for purposes of its analysis , and that, in doing so, "it should be possible to
discern from their structure, design and operation that they affect Boeing's behaviour in a similar
way."2391 The Panel noted that the parties disagreed about the precise mechanism by which the tied
tax subsidies could affect pricing decisions. 2392 Nevertheless, both parties appeared to accept, and the
Panel found, that the subsidies in question are "directly tied to sales of individual LCA" 2393 and that

2387The Panel found that the total FSC/ETI subsid ies received by Boeing between 1989 and 2006
amounted to approximately $2.2 billion, and that the amounts allocated to the reference period years from 2004
to 2006 consisted of $153 million, $142 million, and $140 million, respectively. The Panel also found that the
B&O tax rate reductions granted through 2006 by the State of Washington and the City of Everett amounted to
$13.8 and $2.2 million, respectively. (Panel Report, para. 7.1811) However, with respect to the calculations of
the per-LCA magnitudes performed by ITR, the Panel stated: "ITR's per-LCA subsidy 'magnitude' estimates
play no part in the Panel's analysis of the effects of the subsidies." (Ibid., para. 7.1813)
2388Panel Report, para. 7.1802.
2389As explained supra, footnote 1882, the European Communities did not claim that the FSC/ETI
subsidies had adverse effects in the 200-300 seat LCA ma rket, and the Panel conducted its analysis on the basis
that these subsidies had no effects in that product ma rket. The Panel thus examined the effects of these
subsidies only with respect to Boeing's pricing of its LCA within the 100-200 seat and 300-400 seat LCA
markets. (Panel Report, para. 7.1802)
2390Panel Report, para. 7.1803. The Panel noted that the Washington State B&O tax rate reduction
applies to the production and sale of LCA manufactured in Washington State, and th erefore potentially affects
the 737NG, 777, and 787. The City of Everett B&O tax rate reduction affects the production and sale of LCA
manufactured in Everett, and therefore applies to the 777 and 787, but not to the 737NG. (Ibid.)
2391Panel Report, para. 7.1805.
2392The European Communities argued that the subsidies are realized on the production and delivery of
individual LCA, and thereby reduce Boeing's marginal unit costs for each individual LCA. The United States
considered it inaccurate to describe th e subsidies as reducing Boeing's margin al unit costs, but agreed that the
subsidies lead to an increase in revenues arising in respect of the sale of each LCA. (Panel Report, para. 7.1806)
2393Panel Report, para. 7.1806.
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they operate to "lower taxes that Boeing pays and thereby increase Boeing's after-tax profits".
2394 The
Panel further considered that the tied tax subsidies lower taxes that Boeing pays and thereby increase
the profitability of LCA sales "in a way that enables Boeing to price its LCA at a level that would not
otherwise be commercially justified". 2395 In this respect, the Panel concluded that the tied tax
subsidies "clearly have a far more direct and imme diate relationship to aircraft prices and sales than
other subsidies at issue in this dispute, such as the aeronautics R&D subsidies".2396
1172. In respect of the FSC/ETI subsidies in particul ar, the Panel made a few further observations.
First, the Panel stated that, "by virtue of their ve ry nature as export subsidies", the FSC/ETI subsidies
are "more likely to cause adverse trade effects". 2397 The Panel then proceeded to note statements in
prior WTO disputes addressing the effects-related im plications of prohibited subsidies. The Panel
noted that the Appellate Body in Canada – Aircraft referred to prohibited export subsidies as ones
"for which the adverse effects are presumed" 2398, and that the panel in Brazil – Aircraft stated that
prohibited subsidies "are specifically designed to affect trade". 2399 The Panel concluded that,
"precisely because the FSC/ETI subsidies are contingent on Boeing making export sales, {it was}
entitled to determine, absent reliable evidence to the co ntrary, that by their very nature, they will have
trade distortive effects".
2400
1173. The Panel recalled its prior calculations th at the amount received from FSC/ETI tax
exemptions and exclusions from 1989 through 2006 was approximately $2.2 billion, and that the
European Communities had estimated that Boeing received FSC/ETI subsidies of approximately
$153 million, $142 million, and $140 million, respectiv ely, in the years 2004, 2005, and 2006. The
Panel also recalled its calculations that, throug h 2006, Boeing received $13.8 million and $2.2 million
in B&O tax rate reductions from the State of Washi ngton and the City of Everett, respectively. The
Panel further recalled its view that, "given the pa rticularities of LCA production and sale, the effects
of the subsidies should be understood to begin at the time at which an LCA order is obtained (or an
order is lost) and to continue up to and including th e time at which that aircraft is delivered (or not

2394Panel Report, para. 7.1807.
2395Panel Report, para. 7.1807.
2396Panel Report, para. 7.1807.
2397Panel Report, para. 7.1808.
2399Panel Report, para. 7.1809 (quoting Panel Report, Brazil – Aircraft , para. 7.26). The Panel also
referred to the following statement of the arbitrator in US – FSC (Article 22.6 – US): "Export subsidies do, after
all, have 'adverse effects' on third parties. Systemica lly speaking they are, as a category of subsidy, more
inherently prone to do so than any other". (Decision by the Arbitrator, US – FSC (Article 22.6 – US), para. 5.35)
2400Panel Report, para. 7.1810. The Panel added that, in any event, there was in this case "reliable
evidence which confirms that determination". ( Ibid., footnote 3763 to para. 7.1810, referring to paras. 7.1806,
7.1807, 7.1811, and 7.1817-7.1823)
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delivered)."
2401 The Panel affirmed that it would consider the existence of serious prejudice within the
reference period from 2004 to 2006 as identified by th e European Communities, but would "not limit
the temporal scope of the evidence that it considers in undertaking that assessment".2402
1174. The Panel proceeded to analyze "whether the availability of FSC/ETI subsidies and B&O tax
subsidies enabled Boeing to compete on price in individual sales, and secure sales that it would not
otherwise have made, and where it did not win those sales, led to Airbus securing those sales at lower
prices than it would otherwise have obtained". 2403 The Panel set out evidence introduced by the
parties concerning the magnitude of subsidization in relation to Boeing's revenues. The Panel noted
the United States' contention that the FSC/ETI subsidies received by Boeing were too small relative to
Boeing's order revenues to have affected Boeing's pricing in a manner causing adverse effects. The
Panel also noted the European Communities' argument that, when based on the more relevant measure
of Boeing's delivery revenues, the ad valorem rates of subsidization are significant. The Panel did not
consider, however, that "either measure is particul arly informative or illustrative of the capacity for
the FSC/ETI subsidies to have affected Boeing' s prices, and by extension, Airbus' prices and
sales."2404
1175. The Panel considered it "important to bear in mind that the FSC/ETI subsidies are export
subsidies that are designed to increase Boeing's competitiveness through its pricing of LCA for
export".2405 The Panel referred to: (i) evidence fro m a 1996 sales campaign, in which an Airbus
negotiator stated that a customer requested a furthe r price reduction of $4 million per aircraft due to
Boeing's receipt of FSC subsidies; (ii) a stat ement by the US Trade Representative describing the
purpose of the FSC/ETI provisions as enhancing the international competitiveness of US companies;
(iii) a 2003 report on FSC/ETI beneficiaries indica ting that, over the six-year period ending in 2002,
Boeing was the largest FSC/ETI beneficiary; and (i v) evidence that a Boeing official regarded the
FSC/ETI measures as important to Boeing's ability to compete. 2406 The Panel found that these
considerations "point quite clearly to the signifi cance of the FSC/ETI subsidies to Boeing's ability to
compete on price against Airbus".2407

2401Panel Report, para. 7.1812.
2402Panel Report, para. 7.1679.
2403Panel Report, para. 7.1814.
2404Panel Report, para. 7.1816.
2405Panel Report, para. 7.1817.
2406Panel Report, para. 7.1817.
2407Panel Report, para. 7.1818.
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1176. The Panel then explained that it had:
… no doubt that the availability of the FSC/ETI subsidies, in
combination with the B&O tax subsidies, enabled Boeing to lower its
prices beyond the level that would otherwise have been economically
justifiable, and that in some cases, this led to it securing sales that it
would not otherwise have made, while in other cases, it led to Airbus
being able to secure the sale only at a reduced price.
2408
1177. The Panel added that the subsidies have also "served to entrench Boeing as the incumbent
supplier, thereby putting it at an important switchi ng cost advantage over Airbus in future sales of
aircraft of the same family to that same customer".2409
1178. The Panel stated that, because the FSC/ETI progr amme had already been in operation prior to
2000, it was not possible for the Panel to ascertain th e effects of the subsidies from direct observation
of market share and pricing trend data over the 200 0-2006 period. The Panel further considered that
factors other than the FSC/ETI subsidies that, in the United States' view, explained the prices and
performance of Airbus LCA in the 2004-2006 period "do not reverse or attenuate the pervasive and
consistent pricing advantage that Boeing had in LCA campaigns in the 2001-2003 period due to the
availability of the FSC/ETI subsidies". 2410 The Panel acknowledged that, in such circumstances, one
potential option would be for it to decline to make a serious prejudice finding due to the difficulty of
precisely calculating the degree to which Boeing's pr icing of the 737NG and the 777 was affected by
the tied tax subsidies. The Panel was, however, of the view that such an approach would be
inconsistent with its obligations to make an objective assessment of the matter as required by
Article 11 of the DSU, "as well as contrary to considerations of basic commonsense and reason". 2411
Instead, the Panel considered it "necessary and appr opriate to deduce the effects of the FSC/ETI
subsidies and the B&O tax subsidies on Airbus' sales and prices over the 2004-2006 period based on
commonsense reasoning and the drawing of inferences" from its conclusions regarding the nature of
the subsidies, the duration of the FSC/ETI subsid ies, and the nature of the competition between
Boeing and Airbus.2412

2408Panel Report, para. 7.1818.
2409Panel Report, para. 7.1818.
2410Panel Report, para. 7.1819 (referring to the Un ited States' first written submission to the Panel,
paras. 1064-1080 and 1138-1155).
2411Panel Report, para. 7.1821.
2412Panel Report, para. 7.1820.
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1179. In applying this approach, the Panel reasoned as follows:
The Panel considers that it is reasonable to infer, based on the fact
that the effects of the subsidies on Airbus' prices would be most
acutely felt in particular sales cam paigns of strategic importance to
Boeing and/or Airbus, that the effects of the subsidies are therefore
significant in the sense that Boeing' s success in such sales campaigns
necessarily constitutes a significant lost sale to Airbus, and that such
sales secured by Airbus in the face of Boeing's reduced prices
necessarily constitute sales secured at significantly suppressed prices.
It is thus inescapable to also arrive at the conclusion that in law the
effects of the subsidies on Airbus' prices and sales constitute
significant lost sales and significant price suppression, within the
meaning of Article 6.3(c) of the SCM Agreement, as well as
displacement and impedance of e xports from third-country markets,
within the meaning of Article 6.3(b).
2413
1180. On this basis, the Panel concluded that the effects of the FSC/ETI subsidies and the
Washington State B&O tax rate reduction in the 100-200 seat LCA market 2414, and the effects of the
FSC/ETI subsidies and the Washington State and C ity of Everett B&O tax rate reductions in the
300-400 seat LCA market, were: (i) to significantly suppress Airbus' prices in sales in which it
competed against Boeing; (ii) to cause Airbus to lose significant sales; and (iii) to displace and
impede EC exports in third-country markets.2415
1181. The Panel did not, in its analysis of the price effects of the tied tax subsidies in the 200-300
seat LCA market, take account of the FSC/ETI subsidies. 2416 For the 200-300 seat LCA market, the
Panel therefore considered the price effects of only the Washington State and the City of Everett B&O
tax rate reductions, and found that there was insuffi cient evidence to conclude that these subsidies
were of a magnitude that would enable them, on their own, to have such an effect on Boeing's prices
of the 787 so as to cause Airbus to suffer serious prejudice.
2417

2413Panel Report, para. 7.1822.
2414The Panel determined that the City of Everett B&O tax rate reduction applies to the 777 and 787
families, but not to the 737NG family. (Panel Report, para. 7.1803)
2415Panel Report, para. 7.1823.
2416As explained supra, footnote 1882, the European Communities did not claim that the FSC/ETI
subsidies had adverse effects in the 200-300 seat LCA ma rket, and the Panel conducted its analysis on the basis
that these subsidies had no effects in that product market.
2417Panel Report, para. 7.1824. The European Union has appealed this finding, and contends that the
Panel erred in failing to undertake an assessment of the collective effects of the aeronautics R&D subsidies and
the B&O tax rate reductions in the 200-300 seat LCA mark et. Our evaluation of this claim of error on appeal is
set out in section X.E of this Report.
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4. Assessment of the Panel's Causation An alysis under Articles 5(c) and 6.3(b)
and (c) of the SCM Agreement
1182. We now turn to the United States' appeal. Fi rst, we address general aspects of the Panel's
causation analysis by focusing on the United St ates' allegation that the Panel relied on an
"impermissible presumption"2418 that subsidies prohibited under Part II of the SCM Agreement cause
serious prejudice for purposes of Part III, as well as on the United States' arguments relating to the
Panel's treatment of the magnitude of the tied ta x subsidies, its counterfactual analysis, and its
consideration of the other factors advanced by the Un ited States to explain the alleged market effects.
Second, we address the United States' contention that the Panel committed specific errors in reaching
its findings of significant price suppression, significa nt lost sales, and displacement and impedance.
We note that the various elements of the United Stat es' claim relate to different aspects of the Panel's
"unitary" analysis of the price effects of the tied ta x subsidies. Therefore, we analyze independently
each of these elements below and, once we have considered them all, we provide an overall
assessment of the Panel's causation analysis.
(a) Whether the Panel conducted a proper causation analysis
(i) Nature of the tied tax subsidies
1183. As part of its causation analysis, the Panel consid ered several aspects of the nature of the tied
tax subsidies. As we have noted, the Panel f ound that, because both the FSC/ETI subsidies and B&O
tax rate reductions were tied to sales of individual LCA, they increase the profitability of LCA
sales.2419 The Panel also examined the amount and duration of the FSC/ETI subsidies, totalling
$2.2 billion over the period from 1989 to 2006, a nd $435 million during the reference period from
2004 to 2006.2420 Furthermore, the Panel referred to evidence consisting of statements by Airbus and
Boeing executives and the US Trade Representative i ndicating that FSC/ETI subsidies were essential
to enhancing the international competitiven ess of Boeing versus its foreign competitors. 2421 None of
these aspects of the Panel's analysis is challenged on appeal by the United States.
1184. In addition, we noted the Pa nel's conclusion that, "precisely because the FSC/ETI subsidies
are contingent on Boeing making export sales, {it was} entitled to determine, absent reliable evidence
to the contrary, that by their very nature , they will have trade distortive effects". 2422 In respect of this
analysis, the United States contends that the Pane l erred in relying on a presumption that subsidies

2418United States' other appellant's submission, heading VI.C.2, p. 134.
2419Panel Report, paras. 7.1806 and 7.1807.
2420Panel Report, para. 7.1811.
2421Panel Report, para. 7.1817.
2422Panel Report, para. 7.1810.
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found to be prohibited under Part II of the SCM Agreement cause adverse effects within the meaning
of Part III. According to the United States, by relying on its finding that FSC/ETI subsidies are
prohibited export subsidies under Article 3.1(a) to r each its finding that the tied tax subsidies caused
serious prejudice under Article 6.3, the Panel established a presumption that is not permitted under the
SCM Agreement. The European Union does not address th e issue of whether such a presumption
exists, but rather argues that the Panel did not rely on any such presumption. In the European Union's
view, the Panel referred to the FSC/ETI subs idies as export subsidies only to support its
characterization of the nature of those subsidi es, and ultimately relied on other findings and
conclusions to reach its finding of serious prejudice.
1185. In our view, the Panel's reasoning, considered in its totality, does not show that it applied a
presumption of the sort claimed by the United States. The Panel referred to its findings, as well as the
findings of previous panels, that the FSC/ETI s ubsidies are prohibited export subsidies within the
meaning of Article 3.1(a) of the SCM Agreement.
2423 The Panel did not, however, express the view
that the legal status of subsidies under Article 3.1(a) of the SCM Agreement is determinative of the
characterization of the effects of such subsidies for purposes of Article 6.3 of that Agreement. Rather,
the Panel stated that the FSC/ETI subsidies are, "by virtue of their very nature as export subsidies,
more likely to cause adverse trade effects". 2424 This general proposition is in itself unobjectionable.
The Panel further indicated that it was the fact that the FSC/ETI subsidies are "contingent on Boeing
making export sales" that "entitled" the Panel to dete rmine, "absent reliable evidence to the contrary",
that those subsidies, "by their very nature", will have trade distortive effects. 2425 Notwithstanding
certain ambiguities in this statement, we do not un derstand the Panel's reference to "trade distortive
effects" as equating the existence of such eff ects to establishing "serious prejudice" or "adverse
effects" within the meaning of Articles 5(c) and 6.3 of the SCM Agreement. Rather, the Panel seems
to have been elaborating upon its view that the nature of the FSC/ETI subsidies increases the
likelihood that they will produce adverse effects, a nd indicating that it would, for that reason, accord
this factor considerable weight in its analysis of such effects and of whether they demonstrated serious
prejudice. The Panel's statement also follows l ogically from the reasoning that immediately preceded
it, in which the Panel referred to both "the inhere ntly trade-distorting nature of export subsidies" 2426
and to the fact that the FSC/ETI subsidies have a "d irect and immediate relationship to aircraft prices
and sales".2427 To the extent that the arguments raised by the United States on appeal suggest that the

2423Panel Report, para. 7.1808, referring to paras. 7.1452-7.1455 (in turn referring to the panel and
Appellate Body reports in US – FSC, US – FSC (Article 21.5 – EC), and US – FSC (Article 21.5 – EC II)).
2424Panel Report, para. 7.1808. (emphasis added)
2425Panel Report, para. 7.1810.
2426Panel Report, para. 7.1809.
2427Panel Report, para. 7.1807.
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Panel was not "entitled" to attach significance to the export-contingent nature of the FSC/ETI
subsidies, we disagree. We recall, in that conn ection, that the Panel found, and both parties accepted,
that the nature of a challenged subsidy is a relevant factor to take into c onsideration in determining
whether it has caused adverse effects. Indeed, we consider that an analysis of the export-contingent
nature of a subsidy may reveal elements that are highl y pertinent to an assessment of its trade effects;
at the same time, a finding of export-contingency would not, by itself, establish the existence of
adverse effects phenomena such as those at issue in this appeal.
1186. In sum, we do not view the Panel as having made a legal finding that, for purposes of
analyzing a claim of serious prejudice under Part III of the SCM Agreement, subsidies that have been
found to be export-contingent within the meaning of Part II of that Agreement must be presumed to
cause adverse effects.
2428 Furthermore, we note that the Panel itself, in a footnote to the Panel's
reasoning that is challenged by the United States, refe rred to various other factors, in addition to the
export-contingent nature of the FSC/ETI subsidies, that supported its findings regarding the effects of
the tied tax subsidies. 2429 This, too, demonstrates that the Panel did not reach its ultimate finding
solely as a consequence of its finding, in a previous section of its Report, that the FSC/ETI subsidies
"are export-contingent subsidies to Boeing's LCA division prohibited under Articles 3.1(a) and 3.2 of
the SCM Agreement." 2430
(ii) Magnitude of the tied tax subsidies
1187. The United States also contends that the Panel er red in its consideration of the magnitude of
the FSC/ETI subsidies in relation to LCA values and, in particular, that it failed to take proper account
of the small magnitude of those subsidies. The United States challenges the Panel's conclusion that,
although both parties submitted evidence demonstrati ng that FSC/ETI benefits amounted to less than

2428The Panel referred to a statement by the Appellate Body in Canada – Aircraft contrasting actionable
subsidies, which "may be illegal if they have certain trade effects", with "prohibited export subsidies for which
the adverse effects are presumed ". (Appellate Body Report, Canada – Aircraft , para. 202 (quoted in Panel
Report, para. 7.1808)) This statement, which was made in the course of an analys is of how a panel should
adjudicate a claim under Article 3.1(a) of the SCM Agreement, refers to the fact that a complainant bringing a
claim under Article 3.1(a) of the SCM Agreement is entitled to a finding of inconsistency if it can establish that
the challenged subsidy is contingent upon export performance. Unlike a complainant seeking to establish a
claim of adverse effects under Part III of the SCM Agreement, a complainant raising an Article 3.1(a) claim is
not required in addition to establish the effects of that subsidy.
2429Panel Report, footnote 3763 to para. 7.1810 (referring to its reasoning in paras. 7.1806, 7.1807,
7.1811, and 7.1817-7.1823).
2430Panel Report, para. 7.1464; see also para. 8.2(a). We recall that this finding of the Panel has not
been appealed.
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1% of the value of Boeing's sales, that evidence wa s not "particularly informative or illustrative" of
the capacity for the FSC/ETI subsidies to have affected LCA prices and sales.
2431
1188. The European Union contends that the Pane l conducted a thorough assessment of magnitude,
taking into account important contextual factors relating to the nature and duration of the subsidies, as
well as the conditions of competition. In doing so, the Panel "explained the significance of highly-
trade-distorting tax subsidies of relatively small magnitude".
2432 The European Union argues that the
Panel's approach reflected a qualitative assessment of the magnitude of the subsidies, which was
within its discretion in reaching its findings of causation.
1189. As explained above, the Panel's assessment of magnitude comprised several elements. The
Panel quantified the absolute amounts of the tied tax subsidies, and allocated amounts to the reference
period.2433 The Panel considered that, given the par ticularities of LCA production and sale, "the
effects of the subsidies should be understood to begi n at the time at which an LCA order is obtained
(or an order is lost) and to continue up to and incl uding the time at which that aircraft is delivered (or
not delivered)."2434 The Panel rejected certain aspects of the allocation methodology proposed by the
European Communities.2435 The Panel then noted the United States' argument that the FSC/ETI
amounts were too small relative to LCA order revenues to have affect ed Boeing's pricing to a degree
that would lead it to win sales that it would not otherwise have won, or to force Airbus to win sales
only at lower prices than it would otherwise have obtained. The Panel also referred to the
European Communities' response, notably its cont ention that the significance of the size of the
FSC/ETI subsidies should be measured by ad valorem rates of subsidization based, not on order
values but, rather, on the sales revenue from LCA deliveries against which the subsidies accrued. The
Panel reproduced the tables submitted by each party in this regard, which contained the following
data:

2432European Union's appellee's submission, para. 573.
2433Panel Report, para. 7.1811.
2434Panel Report, para. 7.1812.
2435Panel Report, paras. 7.1812 and 7.1813.
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Table 7. Relative amounts of FSC/ETI subsidies
Year
Amount of
FSC/ETI
subsidies
($m)
United States European Communities
Value of orders
($m)
FSC/ETI
subsidies as %
of order value
Delivery
revenue
($m)
FSC/ETI
subsidies as %
of delivery
revenue
2000 266 32,591 0.82 24,792 1.07
2001 197 16,588 1.19 27,251 0.72
2002 179 12,585 1.42 22,100 0.81
2003 107 9,771 1.10 16,637 0.64
2004 153 16,650 0.92 15,905 0.96
2005 142 67,193 0.21 14,777 0.96
2006 140 61,579 0.23 21,562 0.65
Source: Panel Report, paras. 7.1814 (re ferring to United States' first written submission to the Panel, para. 815) and 7.1815
(referring to International Trade Res ources LLC, "Response to US Criticisms of ITR Subsidy Magnitude Report"

1190. Having referred to this data, the Panel e xpressed the view that neither data set was
"particularly informative or illust rative of the capacity for the FSC/ETI subsidies to have affected
Boeing's prices, and by extension, Airbus' prices and sales." 2436 The Panel then went on to examine
evidence that it considered "point{s} quite clearly to the significance of the FSC/ETI subsidies to
Boeing's ability to compete on price against Airbus". 2437 The Panel thus appears to have considered
that the tied tax subsidies were capable of produc ing price effects notwithstanding the United States'
contention that they were too small to have had such effects.
1191. On appeal, the United States does not cha llenge the Panel's fi ndings regarding the absolute
amounts of the FSC/ETI subsidies, constituting $2.2 billion between 1989 and 2006, and $435 million
during the reference period. Rather, the United St ates asserts that the Panel failed to take proper
account of the relative size of the FSC/ETI subsidies in re lation to LCA values over the reference
period. We understand the United States' argument to be that the Panel could not, in the light of the
relatively small magnitude of these subsidies, have made the findings that it did regarding the clear
"significance of the FSC/ETI subsidies to Boeing's ability to compete on price against Airbus".2438
1192. We recall that the Appellate Body addressed i ssues relating to the amounts of the subsidies at
issue in US – Upland Cotton. In that dispute, the Appellate Body rejected the United States'
contention that Article 6.3(c) requires a panel to quantify precisely the amount of the challenged
subsidy benefiting the product at issue in every case. The Appellate Body nevertheless stressed that,
in analyzing a claim of significant price suppression, "a panel will need to consider the effects of the
subsidy on prices" and that, in doing so, "it may be di fficult to decide" whether the effect of a subsidy

2436Panel Report, para. 7.1816.
2437Panel Report, para. 7.1818.
2438Panel Report, para. 7.1818.
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is significant price suppression without having regard to "the magnitude of the challenged subsidy and
its relationship to prices of the product in the relevant market."
 2439 Moreover, although "{t}he
magnitude of the subsidy is an important factor" 2440, a panel needs to take into account "all relevant
factors"2441 in determining the effects of subsidies on prices.
1193. In our view, both the absolute and the relativ e magnitudes of subsidies are likely to be
relevant to a panel's analysis of the effects of subs idies on prices. Both considerations may shed light
on the impact that those subsidies have on pric e, although the extent to which either or both
considerations shed light on this relationship will depend on the particular subsidies, products, and
markets at issue. Through scrutinizing magnitude in the light of and as part of an analysis of the
particular subsidies, the particular products, and th e particular characteristics of the market within
which those products compete, a panel can gain an understanding of the effects that the subsidies have
on prices, and of the relevance of the subsidies' magn itude to such effects. In other words, what it
means to take account of considerations of "m agnitude" will also depend upon the circumstances of
each case and the market phenomenon at issue. 2442 Depending on the circumstances of each case, an
assessment of whether subsidy amounts are signifi cant should not necessarily be limited to a mere
inquiry into what those amounts are, either in absolute or pe r-unit terms. Rather, such an analysis
may be situated within a larger inquiry that c ould, for instance, entail viewing these amounts against
considerations such as the size of the market as a wh ole, the size of the subsidy recipient, the per-unit
price of the subsidized product, the price elasticity of demand, and, depending on the market structure,
the extent to which a subsidy recipient is able to set its own prices in the market, and the extent to
which rivals are able or prompted to react to each other's pricing within that market structure.
Considerations of some of these elements formed part of the Appellate Body's analysis of the
magnitude of price-contingent subsidies in US – Upland Cotton (Article 21.5 – Brazil) 2443, and of the
submissions that each of the parties made before the Panel in this dispute regarding the amount of the
FSC/ETI subsidies relative to Boeing's delivery and order revenues.

2439Appellate Body Report, US – Upland Cotton, paras. 461 and 467.
2440Appellate Body Report, US – Upland Cotton , para. 461. Moreover, the Appellate Body noted:
"A large subsidy that is closely linked to prices of the relevant product is likely to have a greater impact on
prices than a small subsidy that is less closely linked to prices." (Ibid.)
2441Appellate Body Report, US – Upland Cotton, para. 461.
2442Like the Panel, we use the term "magnitude" he re in its broad sense ("{t}he 'magnitude' of
something is generally understood as a reference to its size, extent, degree, or numerical quantity or value") and
not in the specialized sense that it was at times used by the European Communities before the Panel, meaning a
per-LCA aircraft amount calculated by allocating the total amounts of subsidies over time and across aircraft
2443The Appellate Body explained that the panel in that case had found that the "magnitude of the
marketing loan and counter-cyclical payments {was} signifi cant not only in absolute terms, but also as a share
of United States producers' total revenues". (Appellate Body Report, US – Upland Cotton (Article 21.5 –
Brazil), para. 362 (referring to Panel Report, US – Upland Cotton (Article 21.5 – Brazil), para. 10.111))
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1194. Like that of the panel in US – Upland Cotton
2444, the reasoning of the Panel in this dispute
with respect to the magnitude of the subsidies is somewhat opaque, and could have been more clearly
elaborated. It may well be that, in considering magnitude, the Panel relied primarily on its findings
regarding the absolute amounts of the tied tax subsidies. In this case, however, the parties also
presented arguments and evidence regarding the relative significance of the subsidies and, in
particular, on the issue of whether those subsidies we re of a size that, when considered in relation to
product values or prices, could produce market effects amounting to serious prejudice. We do not
exclude that subsidies of a relatively small magnit ude in relation to product values or prices could
have such effects, or that the Panel could have reasoned to that conclusion in the circumstances of this
case. Instead, however, the Panel dismissed the eviden ce advanced by the parties as not "particularly
informative or illustrative" of the capacity of these subsidies to affect Boeing's prices, without
explaining why it considered this to be so. Given that a comparison of the magnitude of the FSC/ETI
subsidies in relation to LCA values was a relevant matter clearly put before the Panel, we consider
that the Panel should have offered more of an expl anation as to why it rejected the relevance of such
data for its analysis.
1195. At the same time, however, we note that, after dismissing the parties' submissions regarding
the relative magnitude of the FSC/ETI subsidies as compared to order values and revenues, the Panel
did provide other reasons, arguably relating to the magnitude of these subsidies, for its finding in
paragraph 7.1818 regarding the clear "significance of the FSC/ETI subsidies to Boeing's ability to
compete on price against Airbus". Among the other considerations that the Panel identified, at least
one concerned the relative amount of the FSC/ETI subsidies for individual LCA. 2445 Furthermore,
earlier in its analysis, the Panel had identified elem ents other than magnitude and, notably, stressed
the nature of the FSC/ETI subsidies as export subs idies, which are "more likely to cause adverse trade
effects" and which have a "more direct relations hip to Boeing's LCA prices than the aeronautics R&D
subsidies".2446

2444Although the Appellate Body accepted that panel' s characterization of the magnitude of the
subsidies as "very large amounts", it nonetheless observed that the panel "could have been more explicit and
specified what it meant" in that regard. (Appellate Body Report, US – Upland Cotton, para. 468)
2445The Panel referred to, and appears to have accepte d, evidence of comments made by an Airbus
customer during a 1996 sales campaign suggesting that Ai rbus needed to lower its prices by as much as
$4 million per aircraft to match the pri ces that Boeing was able to offer as a result of the FSC subsidies. (Panel
Report, para. 7.1817 (referring to C. Scherer, Airbus SAS, "Commercial Aspects of the Aircraft Business from
the Perspective of a Manufacturer" (March 2007) (Panel Exhibit EC-11 (BCI)), para. 56))
2446Panel Report, para. 7.1808. The Panel explained that they are, by their "very nature as export
subsidies, more likely to cause adverse trade effects". (Ibid.; see also para. 7.1817)
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(iii) The Panel's counterfactual analysis
1196. The United States further argues that the Panel did not apply a proper counterfactual analysis,
because it failed to establish that, absent the tied ta x subsidies, Boeing's LCA prices would have been
higher. In response to the United States' argument before the Panel that Boeing's pricing decisions
were commercially rational and profit-maximizing, the European Communities contended that Boeing
would not have had the resources to act on its co mmercial incentives without subsidies. In the
United States' view, the parties' argumentati on and evidence thus narrowed the counterfactual
question "to whether, but for the subsidies, Boeing would have had the resources to act in an
economically rational manner".
2447 The United States considers that, because the Panel rejected the
European Communities' argument that Boeing lacked the financial means to price and develop its
LCA in the manner in which it did, the Panel's findings and the undisputed facts on the record lead to
the conclusion that Boeing's prices would not have been different without subsidies.
1197. The European Union contends that the Pane l "engaged in a comprehensive counterfactual
analysis".2448 That analysis, the European Union mainta ins, consisted of the nature, magnitude, and
duration of the tied tax subsidies, as well as the conditions of competition in the LCA industry. The
European Union also points to the Panel's finding th at the United States agreed that tied tax subsidies
have an impact on output and prices2449, and argues that the Panel's findings and the facts on the Panel
record do not support the contention that Boeing had the ability to lower its LCA prices in the absence
of subsidies.
1198. The Panel stated at the outset of its adve rse effects analysis that it would conduct a
counterfactual analysis.2450 In its analysis of the price effects of the tied tax subsidies, however, the
Panel did not expressly refer to a counterfactual an alysis, or provide a discussion of what market
situation would have existed in the absence of the challenged subsidies.2451 As we have set out above,
the Panel explained that the nature of the tied ta x subsidies, in particular, the export-contingent
FSC/ETI subsidies, was more likely to produce trade- distortive effects. We also noted the Panel's
consideration of arguments and evidence con cerning the amount and duration of the tied tax
subsidies—including the total amount of FSC/ETI subsidies granted to Boeing between 1989 and

2447United States' other appellant's submission, para. 109, p. 129. (original emphasis) We note that the
United States' other appellant's submission contains two paragraphs numbered 109; our reference is to the
second of those paragraphs.
2448European Union's appellee's submission, para. 530.
2449Panel Report, para. 7.1806.
2450Panel Report, para. 7.1659.
2451As we have noted, the European Communities had estimated, on the basis of its calculations of
per-LCA subsidy magnitudes, counterfactual prices for the A320 and A340 in the absence of subsidies by
adding the per-LCA subsidy amounts to indexed prices for those LCA. (See supra, footnotes 2371 and 2372)
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2006, and during each year of the reference peri od from 2004 to 2006—as well as anecdotal evidence
consisting of statements by Airbus and Boeing executives and the US Trade Representative indicating
that FSC/ETI subsidies were essential to enha ncing the international competitiveness of Boeing
versus its foreign competitors.
1199. On this basis, the Panel concluded, in paragraph 7.1818 of its Report, as follows:
We have no doubt that the availability of the FSC/ETI subsidies, in
combination with the B&O tax subsidies, enabled Boeing to lower its
prices beyond the level that would otherwise have been economically
justifiable, and that in some cases, this led to it securing sales that it
would not otherwise have made, while in other cases, it led to Airbus
being able to secure the sale only at a reduced price.
1200. We recall that a core element of the Europ ean Communities' causation theory was that,
although the tied tax subsidies gave Boeing the poten tial to use those benefits to lower LCA prices by
up to the amount of the subsidy, Boeing was more likely to do so in what the European Communities
referred to as competitive sales campaigns. Thus, al though the tied tax subsidies have the potential to
produce trade-distortive effects, this does not establis h under what circumstances, or to what extent,
they will do so in particular sales campaigns. On that basis we understand that, when the Panel
concluded that the tied tax subsidies "enabled Boei ng to lower its prices beyond the level that would
otherwise have been economically justifiable", the Panel considered that these subsidies only
established the possibility or likelihood that Boeing would do so in particular sales campaigns. In
addition, although the Panel concluded that this possibility would lead "in some cases" to lost sales,
and "in other cases" to price suppression, the Panel did not explain the circumstances in which, or the
extent to which, it considered that such phenomena would occur.
1201. For these reasons, we are unable to discern the precise meaning or scope of the Panel's
statement that the tied tax subsidies enabled Boei ng to lower its prices "beyond a level that would
otherwise have been economically justifiable". Th e Panel did not, in so finding, discuss LCA prices
for Boeing or Airbus, or explain what would have constituted "economically justifiable" behaviour for
Boeing in the absence of subsidies, and compare th at with Boeing's actual pricing behaviour. The
Panel referred to evidence attesting to the si gnificance of the FSC/ETI subsidies in increasing
Boeing's competitiveness, but the only evidence that re lates to pricing was a statement by an Airbus
negotiator regarding a sales campaign in 1996, eight years prior to the reference period in this dispute,
in which Airbus was asked by a customer to reduce its price by $4 million per aircraft due to Boeing's
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receipt of FSC subsidies.
2452 We therefore consider that, becau se the Panel did not provide reasoning
or discuss under what circumstances the tied tax s ubsidies led Boeing to lower its prices beyond the
level that would otherwise have been economically justifiable in LCA sales campaigns, it could not
conclude on a generalized basis that these subsidies led Boeing to lower its prices in a manner causing
Airbus to lose sales or to secure sales only at reduced prices.
1202. The United States argues that the Panel was unc onvinced that Boeing lacked the financial
means without subsidies to price the LCA in the manner in which it did. 2453 Before the Panel, the
United States had maintained that the subsidi es had no such effect, because Boeing was able to
engage in the pricing and product development behaviour it did without the need for subsidies. The
European Communities argued that Boeing would have had insufficient resources in the absence of
subsidies to sustain its pricing levels. The pa rties submitted extensive information concerning the
appropriate basis on which to conduct a counterfactua l analysis of whether the Boeing LCA division's
pricing and product development be haviour would have been possibl e had it not received an alleged
$19.1 billion in subsidies between 1989 and 2006. 2454 The Panel concluded that, because the total
subsidies found by the Panel amounted to at least $5.3 billion, rather than the $19.1 billion amount
claimed, the argument that Boeing could not have engaged in the pricing and product development
behaviour it did without subsidies was "untenable". 2455 On that basis, the Panel concluded that it was
"not persuaded that the European Communities has demonstrated that Boeing inherently lacked the
financial means to price and develop its LCA in the manner in which it did".2456
1203. The European Union argues that, on appeal, the United States now posits an "alternative
counterfactual"2457, and that the Panel's rejection of the European Communities' argument concerning
the ability of Boeing absent the subsidies to price and develop its LCA in the manner in which it did
"is not tantamount to a finding that Boeing had 'unfe ttered access' to capital, which would have
allowed Boeing to make its pricing decisions independently of US subsidy payments". 2458 T h e
European Union further contends that the Panel' s findings and the facts on the record do not support
the United States' position that Boeing could have financed actual LCA price levels without subsidies.
According to the European Union, "there is cons iderable evidence before the Panel supporting the

2452Panel Report, para. 7.1817 (referring to C. Sche rer, Airbus SAS, "Commercial Aspects of the
Aircraft Business from the Perspective of a Manufact urer" (March 2007) (Panel Exhibit EC-11 (BCI)),
para. 56).
2453See, for example, Panel Report, paras. 7.1759, 7.1830, and 7.1831.
2454Panel Report, footnote 3787 to para. 7.1830.
2455Panel Report, para. 7.1831.
2456Panel Report, para. 7.1759.
2457European Union's appellee's submission, para. 543.
2458European Union's appellee's submission, para. 547. (original emphasis)
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conclusion that Boeing is unable to take pricing decisions unconstrained by variations in its cash flow,
thus preventing the company from pricing its LCA in a manner independent of US subsidies".
2459
1204. In our view, the United States is not advanci ng an alternative counterfactual scenario, but
rather is asserting that the Panel's own counterfactua l analysis is internally inconsistent. If the Panel
was unpersuaded that Boeing lacked the financial m eans without subsidies to price its LCA in the
manner in which it did, that finding would appear to be in tension with the Panel's conclusion that the
tied tax subsidies caused serious prejudice by a ltering Boeing's pricing behaviour. Moreover,
although there was ample evidence before the Pa nel addressing the issue of whether Boeing could
price LCA as it did in the absence of subsidies, we do not see that the Panel considered or discussed
that evidence in its reasoning. These observations underscore our concern that the Panel did not
adequately reason or explain the basis for its genera lized finding that the tied tax subsidies led Boeing
to lower its prices in a manner causing Airbus to lose sales or to secure sales only at reduced prices.
(iv) The effects of other factors
1205. Finally, the United States argues that the Panel fa iled to engage in a meaningful analysis of
the effects of other factors on prices and sales of Boeing and Airbus LCA. The European Union
maintains that the Panel considered other factors re levant to its unitary causation analysis and that it
explicitly rejected the United States' arguments that these factors reverse or attenuate Boeing's pricing
advantage due to its receipt of FSC/ETI subsidies.
1206. We have set out in section X.A our understanding of how a panel should proceed in the
consideration of the effects of other factors. Ther e we explained that, when confronted with multiple
factors that may have contributed to the alleged adverse effects, a panel must seek to understand the
interactions between the subsidies at issue and the various other factors, and make some assessment of
their connection to, as well as the relative contribu tion of the subsidies and the other factors in
bringing about, the relevant effect. Although a pane l need not determine that a subsidy is the sole or
the only substantial cause of that effect, it must ensu re that the other factors do not dilute the causal
link between those subsidies and the alleged adverse e ffects such that it is not possible to characterize
that link as a genuine and substantial relationship of cause and effect.
1207. In setting out certain preliminary considera tions relevant to its evaluation of the
European Communities' claim of serious prejudice, th e Panel in this case explained that it would take
"potential non-attribution factors into account simultan eously with the effect of the subsidies and in

2459European Union's appellee's submission, para. 550. (footnote omitted)
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the context of conditions of competition affecting the market".
2460 In its subsequent analysis of the
price effects of the tied tax subsidies, the Panel refe rred only briefly to the fact that the United States
had identified other factors:
The FSC/ETI programme was in operation prior to 2000, and it is
therefore not possible for the Pane l to ascertain the effects of the
subsidies from direct observation of market share and pricing trend
data over the 2000-2006 period. The United States' explanations of
factors that it considers explain the prices and performance of Airbus
LCA relative to Boeing LCA in the 100-200 seat single aisle, and
300-400 seat wide-body product ma rkets in the 2004-2006 period
similarly do not reverse or attenua te the pervasive and consistent
pricing advantage that Boeing had in LCA campaigns in the
2001-2003 period due to the availability of the FSC/ETI
subsidies.{*}
2461
{*original footnote 3777} E.g. United States' first written submission,
paras. 1064-1080, 1138-1155.
1208. The Panel thus reasoned that, because the FSC /ETI programme was in effect before the
reference period, this made it impossible for it to de termine the effects of the subsidies through direct
observation of market share and price trend data. This reasoning would suggest that any observations
that could be made about LCA prices before and during the reference period would not have assisted
the Panel in ascertaining the price effects of the su bsidies since any such effects would have always
been present during this period of sustained subsidiza tion. For this reason, the Panel considered that
the United States' evidence of other causal factor s does not "reverse or attenuate the pervasive and
consistent pricing advantage that Boeing had in LCA campaigns", a conclu sion that would seem to
apply not only to the period from 2001-2003, but al so, under the Panel's logic, to the subsequent
reference period from 2004-2006, as well as to periods prior to 2000.
1209. We do not agree with the suggestion of the Pane l that considerations of market share and
price trends during a period of sustained subsidizati on, and of "other factors" potentially contributing
to such shares or trends, were of no assistance or rele vance in analyzing the eff ects of the subsidies.
As the Appellate Body has explained in the c ontext of price suppression, although mere correlation
between the payment of subsidies and significantl y suppressed prices would be insufficient, without

2460Panel Report, para. 7.1660. (footnote omitted) There, the Panel explained that:
{i}n other words, in conducting our analysis of whether the subsidies
affected Boeing's pricing and product offerings, we will also analyze the
effects of other factors that are allege d to have affected that behaviour.
Similarly, in analyzing the effects of the subsidies on Airbus' prices and
sales, we will consider the effect of factors other than Boeing's pricing and
product offerings on Airbus' prices and sales in each of the three product
markets.
2461Panel Report, para. 7.1819.
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more, to prove the effects of the subsidies, " one would normally expect a discernible correlation
between significantly suppressed prices and the challenged subsidies."
2462 In this dispute, the
United States asserts that there is no correlation betw een subsidy levels and LCA price trends before
and during the reference period, and that this is ev idence of the lack of a causal relationship between
the tied tax subsidies and Boeing's prices. 2463 We consider that, even if the FSC/ETI subsidies were
provided over a long period, the question as to whether there was a discernible correlation between
subsidy levels and price trends was still a relevant one. Moreover, the lack of such a correlation
would seem to have called for some explanation as to why this did not detract from or preclude the
Panel from reaching a finding of a genuine and substa ntial causal relationship in this dispute. The
Panel, however, did not discuss these considerations in its analysis.
1210. We further note that the Panel did not, in its reasoning, mention any specific other factors
raised by the United States, or engage in any discussion of whether or to what extent such factors may
have had an effect on Boeing's pric ing of its LCA or on Airbus' prices and sales. In a footnote to its
Report, the Panel cited to certain paragraphs of the United States' first written submission.2464 In those
paragraphs, the United States had advanced other factor s that, in its view, explained the pricing levels
of Airbus and Boeing LCA. The United States points to those same factors on appeal. First, the
United States claims that, in the years prior to and during the reference period, Airbus undercut
Boeing prices in both the 100-200 seat and 300-400 seat LCA markets, which increased Airbus'
market share and set customer expectations for low prices in subsequent campaigns. Second, the
United States asserts that Boeing changed its LCA pricing policy in 2004 and 2005 to respond to low
Airbus prices. Third, the United States argues that, with respect to the 300-400 seat LCA market,
prices for Airbus' "four-engine A340 [ ***
 * * * ] " .
2465
1211. The European Union argues that each of the ot her factors identified by the United States is
unavailing. The European Union maintains that it was Boeing, not Airbus, that undercut prices in the
100-200 seat LCA market, and that, even if Boeing ma y have changed its pricing strategy, the tied tax

2462Appellate Body Report, US – Upland Cotton, para. 451.
2463The United States argues that LCA prices were [ *** ] during a period of relatively higher
subsidization from 2001-2003 than they were during a period of relatively lower subsidization from 2004-2006.
(United States' other appellant's submission, para. 330)
2464Panel Report, footnote 3777 to para. 7.1819 (referr ing to, for example, United States' first written
submission to the Panel, paras. 1064-1080 and 1138-1155).
2465United States' other appellant's submission (BCI), para. 332 (referring to United States' second
written submission to the Panel, HSBI Appendix, Annex A – Additional Comments on Arguments Raised in the
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subsidies nevertheless " always allowed Boeing to have an additional pricing advantage".
2466
Regarding Boeing's fuel efficiency advantage in the 300-400 seat LCA market, the European Union
argues that the tied tax subsidies still enabled Boei ng to suppress 777 prices, even if the absolute
prices for the 777 were higher than those for the A340. Again, the European Union argues, the
provision of the tied tax subsidies meant that Boeing "would always have a pricing advantage because
of the guaranteed FSC/ETI and B&O tax subsidies".2467
1212. Because the Panel did not discuss any of th e specific other factors advanced by the
United States, it did not consider whether any of the other factors were capable of attenuating a
genuine and substantial rela tionship between the tied tax subsidies a nd the market effects. We recall
that the theory of causation advanced by the Eu ropean Communities and accepted by the Panel was
that the tied tax subsidies led Boeing to lower its LC A prices, and that such price effects led to lost
LCA sales and suppressed LCA prices for Airbus. 2468 In evaluating such a claim in the context of a
duopolistic market, it seems to us that the question is not why Boeing lowered its LCA prices in the
context of particular sales campaigns but, rather, whether Boeing lowered its prices by using the tied
tax subsidies.
1213. In our view, two of the general factors men tioned by the United States—that is, that it was
Airbus that initiated the downwar d pricing trend, and that Boeing simply responded by becoming
more competitive on price—merely reflect the competitive conditions in a duopolistic market
whereby price changes by one firm affect the pricing behaviour of its competitor. 2469 I n s a l e s
campaigns that are waged and won principally on the basis of price, Boeing and Airbus typically set
LCA prices through a series of successively lower offe rs until a final price is accepted by a customer.
In this respect, whether it was Airbus or Boeing th at first engaged in the lowering of prices would
seem to have little bearing on the proper inquiry in respect of the end result of a competitive
campaign, namely, whether the subsidies were used to effect additional price reductions of Boeing
LCA, resulting in lost sales and price suppression for Airbus. In answering this latter question against
the backdrop of the Panel's account of the nature, duration, and magnitude of the tied tax subsidies,
and the duopolistic conditions in the LCA industry, we do not consider that, in sales campaigns that
are more sensitive to price competition, an inquiry as to which LCA manufacturer initiated the first

2466European Union's appellee's submission, para. 606. (original emphasis) The European Union adds,
"even assuming, arguendo, that Boeing decided to offer more competitive pricing, the FSC/ETI and B&O tax
subsidies, independently, gave it an additional and persistent advantage and capability of lowering its prices
further than would otherwise have been possible, in pa rticular in strategic sales campaigns against Airbus."
(Ibid., para. 607 (original emphasis))
2467European Union's appellee's submission, para. 608. (original emphasis)
2468Panel Report, para. 7.1818.
2469Panel Report, para. 7.1688.
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move in lowering prices, and which responded, w ould be determinative. We therefore are not
persuaded that such observations constitute "other f actors" that need to be assessed in relation to the
causal work of the tied tax subsidies.
1214. Conversely, we consider that pertinent other f actors for consideration could include those that
explain the effects of lost sales or s uppressed prices on Airbus through a mechanism other than the
lowering of LCA prices by Boeing. Factors that suggest the existence of competitive dynamics that
advantaged Boeing or disadvantaged Airbus in LCA sales campaigns, apart from a downward
pressure on Boeing's LCA prices, would be important considerations to factor into the causal analysis.
For example, the fact that Boeing's 777 benefits from a fuel burn efficiency would be an important
factor to have taken into account in assessing whethe r Boeing used the subsidies to lower its prices
and thereby to cause serious prejudice in the 300-400 seat LCA market. This operating cost
advantage might suggest that Boeing was not subject to the same sort of pricing pressure in this
product market as it was in other product markets where there was a less ma rked disparity between
the performance characteristics of the competing LC A. Likewise, if Boeing were the incumbent
supplier in a particular sales campaign, this might also constitute an advantage for Boeing indicating
that it would not have been under the same pressure to lower prices as it would have been in a more
competitive campaign. Since these factors suggest th at the effects on Airbus' sales and prices did not
result from the lowering of Boeing's prices, they each represent an "other factor" that potentially
contributes to those effects. The Panel should ha ve examined the role these other factors had in
causing Airbus to lose sales or to reduce prices.
1215. In the light of the above, we consider that the Panel should have addressed these specific
other factors raised by the United States and assessed whether they were capable of contributing to
effects on Airbus' sales and prices and, if so, what their relative causal significance was in relation to
that of the tied tax subsidies. As we have expl ained above, even when subsidies are provided over a
long period, this does not excuse a panel from provi ding an examination and reasoned explanation as
to what contribution, if any, other relevant factors may be making to the same effects.
1216. The Panel's failure to address th e relative significance of the other causal factors to Boeing's
price effects contrasts sharply with the Panel's consideration of such factors in respect of the effects of
the aeronautics R&D subsidies in the 200-300 seat LCA market. There, the Panel considered the
sales campaign evidence presented by the European Communities as set out in Annex D to its first
written submission to the Panel. Having reviewed th at evidence, the Panel concluded that, in several
of the sales campaigns, factors other than the subs idy-enabled performance characteristics and the
timing of launch and delivery of the 787 played a significant part in Boeing obtaining the sale. The
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Panel expressly referred to such other causal factor s, including: Boeing's relationship with the
purchasing airline; the particular routes to be service d and range of the aircraft; and the effect of the
competition between the A340 and the 777 and the pr eference of the airline for a mixed fleet.
2470 The
Panel went on to find, however, that the performan ce characteristics of the 787 and/or its scheduled
entry into service in 2008 were the decisive factor s in the outcomes in four sales campaigns for which
it concluded that the aeronautics R&D subsidies caused significant lost sales. 2471 We consider that, as
the Panel did in respect of the 200-300 seat LCA market, the Panel should also have conducted an
analysis of the other causal factors advanced by th e United States in examining the effects of the tied
tax subsidies in the 100-200 seat and 300-400 seat LCA markets.
(b) Whether the Panel conducted a proper analysis of significant price
suppression, significant lost sales, and displacement and impedance
1217. We now address the United States' appeal as it relates to the Panel's specific findings of
significant price suppression, significant lost sales, and displacement and impedance within the
meaning of Article 6.3(b) and (c) of the SCM Agreement.
1218. As we have noted, having concluded that the tied tax subsidies enabled Boeing to lower its
prices below what would otherwise have been " economically justifiable", the Panel nevertheless
found that it was impossible to ascertain the effect s of the FSC/ETI subsidies from direct observation
of market share and pricing trend data during th e 2000-2006 period because the FSC/ETI programme
was in operation prior to 2000.2472
1219. The Panel then considered that it had to proceed in one of two ways. It could "decline to
make a serious prejudice finding because of the diffi culty of calculating with mathematical certitude
the precise degree to which Boeing's pricing of th e 737NG and 777 families of aircraft was affected"
by the tied tax subsidies. 2473 Alternatively, the Panel explained, it could "deduce" the effects of those
subsidies on Airbus' sales and prices during the reference period "based on commonsense reasoning
and the drawing of inferences" from its conclusions re garding the nature of the subsidies, the duration
of the FSC/ETI subsidies, and the nature of competition between Airbus and Boeing.2474
1220. We are puzzled by the Panel's apparent view that the particular circumstances of this dispute
somehow forced upon it a choice between two diamet rically opposed alternatives. Although such
circumstances may have rendered the Panel's task of assessing the European Communities' claim of

2471Panel Report, paras. 7.1786 and 7.1787.
2472Panel Report, para. 7.1819.
2473Panel Report, para. 7.1821.
2474Panel Report, paras. 7.1820 and 7.1822.
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serious prejudice difficult, the Panel still could ha ve assessed whether it had arguments and evidence
before it that would have allowed it to estimate th e effects of the subsidies on Boeing's prices with
something less than "mathematical certitude".
2475 Even if it considered that further efforts to assess
the effects of the subsidies in quantitative terms would not be fruitful, this would not have excused the
Panel from evaluating whether the remainder of the extensive argumentation and evidence adduced by
the European Communities could, to the extent th at it was not rebutted by the competing arguments
and evidence of the United States, have sufficed to support a finding of serious prejudice.2476
1221. Nor do we see that the use of common sense and inferences in the course of adjudicating a
claim can be characterized as somehow exceptional. The adjudication of a claim of serious prejudice
must, like a panel's adjudication of any other matter, be grounded in the application of the relevant
provisions of the covered agreements, properly interp reted, to the relevant facts, properly identified

2475We recall, in this regard, the approach of the panel in US – Upland Cotton (Article 21.5 – Brazil).
That panel did not quantify the precise price effects of the subsidies, but it did refer to, and rely upon, a range of
estimates of those price effects resulting from simulations submitted by both parties to that dispute. (See
Appellate Body Report, US – Upland Cotton (Article 21.5 – Brazil) , para. 365) According to the
European Communities, a somewhat similar approach, rely ing on a range of estimated price effects, was taken
by the arbitrator in the DSU Article 22.6 arbitration in US – FSC : "The arbitrator found that, in light of the
close competition in the market, the pass-through effect of the US subsidies, and, therefore, the trade effects of
the FSC/ETI scheme on the European Communities, lay at the upper end of a range between 75 percent and
100 percent." (European Communities' response to Panel Question 289, footnote 720 to para. 619 (referring to
Decision by th e Arbitrator, US – FSC (Article 22.6 – US), paras. 6.53 and 6.54)) In this dispute, the
European Communities consistently argued that the tied tax subsidies had "dollar-for-dollar" price effects. The
European Communities further argued that, "even if—against all the available evidence—the Panel were to
consider that the{se} subsidies … did not have exactly a one-for-one price effect on Boeing's (and Airbus')
prices, the evidence demonstrates that they have, at the very least, a very close to one-for-one price effect."
(Ibid., para. 624) The United States did not submit its own estimates of the price effects of the FSC/ETI
subsidies. Rather, it acknowledged that, "{a}s a matter of economics, … subsidies that are tied to sales have an
impact on those sales … and, therefore, {on} pricing" while, at the same time, contesting the
European Communities' "dollar-for-dollar" pass-through argument. (United States' comments on the
European Communities' response to Panel Question 289, para. 540; see also paras. 538 and 539) The
United States argued that, because the European Communities' own evidence showed that only "a portion of tax
rebates are passed on to the consumer", this evidence did not "support the EC assertion that all tax benefits are
100 percent passed through". ( Ibid., para. 539 (original emphasis)) We do not see that the Panel engaged with
these arguments or with the evidence submitted by th e European Communities, or that it sought itself to
estimate the extent to which the tied tax subsidies affected prices.
2476The Panel itself seems to have recognized its obligations in this regard with its statement that
"{declining to make a serious prejudice finding because of the difficulty of calculating the price effects with
mathematical certitude} would be inconsistent with our obligations under Article 11 of the DSU, as well as
contrary to considerations of basic commonsense and re ason". (Panel Report, para. 7.1821) Furthermore, the
Panel had specifically asked the European Communities, on two occasions, whether its claim of serious
prejudice depended upon its magnitude calculations, and the European Communities had responded that it did
not. In its responses, the European Communities observed that "the Panel is free to adopt some other
methodology for assessing the amount an d magnitude of the US subsidies" an d that "the degree of the resulting
price effect will vary with the amount and magnitude of the US subsidies". (European Communities' response to
Panel Question 376, paras. 329, 335, and 338) The European Communities further submitted that "a number of
non-magnitude-related factors support a finding of causation in this dispute", and that "a level of price
suppression as low as one percent ad valorem" would nevertheless constitute serious prejudice.
(European Communities' response to Panel Question 279, paras. 545 and 551; see also European Communities'
response to Panel Question 376, para. 330 and footnote 81 thereto)
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and objectively assessed. To the extent that the Panel's ultimate findings of displacement and
impedance, significant price suppression, and signif icant lost sales were based on inferences drawn
from conclusions it had reached on the nature of the subsidies, the duration of the FSC/ETI subsidies,
and the nature of competition between Airbus a nd Boeing, it was incumbent on the Panel not only to
state that it was drawing inferences and using co mmonsense reasoning, but to identify clearly the
relevant conclusions upon which it was relying, what factual or legal inferences it drew on the basis of
those conclusions, why it considered such inferenc es to be reasonable or necessary, and how those
inferences supported its ultimate findings. Thus, al though it is not uncommon for a panel to draw
inferences and conclusions from the evidence, it has to provide reasoning engaging with the evidence
to support those inferences and conc lusions. The various claims of e rror raised by the United States
call into question the extent to which the Panel did so, as discussed further below.
1222. The Panel inferred from the fact that the subsid ies' effects "would be most acutely felt in
particular sales campaigns of strategic importance", that the results of such sales campaigns
necessarily resulted in either significant lost sales (when Boeing obtained the order) or significant
price suppression (when Airbus obtained the order).
2477 This finding indicates that the tied tax
subsidies caused serious prejudice only "in particular sales campaigns of strategic importance". As
we have noted, before the Panel, the European Communities drew a distinction between competitive
and non-competitive sales campaigns, and set out in Annexes E and F to its first written submission
evidence of individual sales campaigns in whic h the challenged subsidies produced effects of
significant price suppression, significant lost sales, or displacement and impedance. 2478 T h e P a n e l ,
however, did not make findings as to whether thes e sales campaigns were "strategic", and did not
refer in its analysis to the evidence in Annexes E and F in which the European Communities identified
particular sales campaigns where such price competiti on is alleged to have occurred. It is therefore
not clear whether the Panel, in referring to "partic ular sales campaigns of strategic importance", was
referring to some or all of the individua l sales campaigns evidence offered by the
European Communities in Annexes E and F, more broadly to all competitive sales campaigns to
which the European Communities referred, or perhap s to some other conception of what constituted
"strategic" sales campaigns. We are also uncertain whether the Panel was referring to orders, or to
deliveries, or whether it was referring to such orde rs or deliveries occurring inside or outside the

2477Panel Report, para. 7.1822.
2478European Communities' first written submission to the Panel, paras. 1507-1533 and 1603-1622.
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reference period.
2479 Whatever campaigns the Panel had in mind, the Panel did not indicate when they
occurred, whether its findings were limited to tho se campaigns, or whether, based on the effects in
those campaigns, the Panel was extrapolating from them to reach global findings in respect of the
worldwide market for 100-200 seat and 300-400 seat LCA. These ambiguities make it difficult to
discern the scope of, and the evidentiary basis for, the Panel's ultimate findings of serious prejudice.
(i) Significant price suppression
1223. The United States claims that the Panel erred in its analysis of significant price suppression
because it undertook no analysis of prices in the 100-200 seat and 300-400 seat LCA markets. In
failing to conduct such an analysis, the United States asserts, the Panel disregarded the effects of other
relevant factors on LCA prices, and did not assess the degree of price suppression to determine
whether it constituted significant price suppression.
1224. The European Union argues that a panel need not examine price trend data, particularly since
such information is not probative as to whether there has been actual price suppression. In the
European Union's view, the Panel focused its analysis on "various qualitative factors"
2480 that allowed
the Panel properly to reach a finding of significan t price suppression. The European Union maintains
that, in any event, the Panel did in fact take pric ing and price trend data into consideration when it
referred to such information in its summary of the European Communities' arguments, and in its
analysis of pricing information in its examination of the technology effects of the aeronautics R&D
subsidies in the 200-300 seat LCA market.2481
1225. In our evaluation of the United States' appeal relating to the Panel's analysis of the technology
effects of the aeronautics R&D subsidies, we iden tified certain considerations relevant to the
evaluation of a price suppression claim, including the utility of a counterfactual analysis. We also
consider that it will ordinarily be useful for a pa nel to take into account evidence relating to price
trends in a price suppression analysis. At the same time, there may be circumstances in which such
evidence is unavailable, unreliable, or unpersuasive. We do not exclude that, in such circumstances, it
may nevertheless be possible to conduct an analys is and to reach a finding of significant price

2479We note that, in the section of its Report dealing with financial contribution, the Panel suggested
that, in its serious prejudice analysis, it would consider th e effects of the tied tax subsidies only with respect to
LCA deliveries during the reference period from 2004-2006. (Panel Report, para. 7.157) Yet the Panel did not
subsequently indicate what impact this had for its analysis of the effects of the tied tax subsidies. If anything,
the comments made by the Panel in paragraphs 7.1685 and 7.1812 suggest that the Panel considered that both
orders and deliveries were relevant for an analysis of lost sales and of price suppression, and that deliveries were
critical to any finding of displacement or impedance.
2480European Union's appellee's submission, para. 644.
2481European Union's appellee's submission, para. 635 and footnote 1247 thereto (referring to Panel
Report, paras. 7.1618 and 7.1782).
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suppression, provided that such a finding is properly supported by other evidence on the record. The
United States' appeal calls for us to consider whet her such circumstances prevailed in the context of
the tied tax subsidies, where it is clear that the Panel did not rely on evidence of price trends in
reaching its finding of significant price suppression.
1226. We have already expressed our disagreement w ith the Panel's view that, because Boeing had
received benefits under the FSC/ETI programme over a long period of time, direct observation of
market share and price trend data during the re levant period was of no assistance or relevance.
2482
While we recognize that the fact that Boeing r eceived FSC/ETI benefits over a long period might
have made the Panel's task more difficult because there was no prior, subsidy-free period against
which to compare market share and price trend da ta occurring during the reference period, this does
not mean that there is nothing to be gained from ex amining such data in a price suppression analysis.
As we have noted, for example, the fact that prices of a subsidized product were lower during a period
of lower subsidization might require further consid eration or explanation in order to demonstrate a
genuine and substantial relationshi p between the subsidies and any a lleged price effects. In this
dispute, the Panel made no reference to, and its reasoning contains no analysis of, any pricing
information or market share data in the 100-200 seat and 300-400 seat LCA markets.
1227. We also do not consider that the fact that th e Panel referred to such evidence in its summary
of one party's arguments makes up for the lack of discussion of the pricing data in the Panel's
reasoning on price effects. 2483 Moreover, we do not see how the fact that the Panel took pricing
information into account in its analysis of the t echnology effects of the aeronautics R&D subsidies
demonstrates that it also did so in respect of the price effects of the tied tax subsidies. 2484 To the
contrary, we consider that the difference in the appr oach used by the Panel in these two sections of its
Report only underscores the absence of any assessment of market share and price trend data in the
Panel's analysis of the price effects of the tied tax subsidies. 2485 We would have expected that, as the
Panel did in respect of the technology effects of the aeronautics R&D subsidies in the 200-300 seat

2482Panel Report, para. 7.1819.
2483Panel Report, para. 7.1618.
2484Panel Report, para. 7.1782.
2485We further observe that, where the Panel noted that certain evidence wa s lacking—for example,
with respect to global market share in the 200-300 seat LCA market over the 2000-2006 period—the Panel
calculated those data on the basis of other data supplied by the European Communities. (Panel Report,
para. 7.1783 (referring to Panel Exhibits EC-3 and EC-1287, consisting of data from the Airclaims CASE
Database))
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LCA market, the Panel would also have examined av ailable market share and price trend data for the
100-200 seat and 300-400 seat LCA markets.
2486
(ii) Significant lost sales
1228. The United States also submits that lost sales w ithin the meaning of Article 6.3(c) of the
SCM Agreement requires the identification of individual transactions in which sales were purportedly
lost. The United States argues that, as oppo sed to the approach of the panel in EC and certain
member States – Large Civil Aircraft , and the Panel in this case when it considered the 200-300 seat
LCA market, the Panel did not identify the sales in the 100-200 seat and 300-400 seat LCA markets
that it found to constitute significant lost sales. Accordingly, the United States considers that the
Panel failed to meet the requirements of Article 6.3(c) for a finding of significant lost sales.
1229. The European Union responds that there is no legal requirement that panels specify and assess
individual sales campaigns. The European Communities considers that the Panel examined lost sales
on a "global basis" 2487, and that this was consistent w ith the Appellate Body report in EC and certain
member States – Large Civil Aircraft . The European Communities moreover contends that the
Panel's approach was consistent with the manner in which the European Communities structured its
claim, and that the Panel therefore properly establishe d a global finding of significant lost sales taking
into account all of the evidence before it.
1230. In considering this ground of appeal, we are called upon to address the question of what level
of specification is required of a panel in identifying and analyzing evidence supporting a finding of
significant lost sales under Article 6.3(c). We have outlined in section X.B prior jurisprudence
regarding the analysis of lost sales. We further note that, in EC and certain member States – Large
Civil Aircraft , the Appellate Body stated that "an examination of specific sales campaigns may be
appropriate given the particular characteristics of a market".
2488 At the same time, the Appellate Body
considered that the reference in Article 6.3(c) to lost sales "in the same market" means that it may be
necessary to look beyond individual sales campaigns to understand the competitive dynamics at play
in a particular market. The Appellate Body thus concluded that "an appr oach in which sales are
aggregated by supplier or by customer, or on a country-wide or global basis … is also

2486Although we consider that the Panel should have undertaken some examination of available price
trend data in its price effects analysis, we do not agre e with the United States' assertion that such data was
"plainly inconsistent with a price suppression phenomenon". (United States' other appellant's submission (BCI),
para. 369, pointing to the fact, for instance, that "[ ***
 *** ]" during the reference period.) Observations about the direction in which prices moved do not by
themselves establish that, in the absence of the subsidie s, the prices of Boeing and Airbus aircraft would not
have been higher than they were.
2487European Union's appellee's submission, para. 649.
2488Appellate Body Report, EC and certain member States – Large Civil Aircraft, para. 1217.
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permissible".
2489 Thus, a lost sales claim may be supported with evidence of lost sales taking place
throughout a geographical and product market, or with evidence of particular sales campaigns
occurring within that market. A panel's approach to the analysis of lost sales must therefore be keyed
to the nature of the claim and evidence presented by a complainant, and the particular conditions of
the market under scrutiny.
1231. In this dispute, the participants have dive rgent views regarding the scope of the Panel's
finding, and whether the Panel ought to have identif ied and examined individual lost sales in the
circumstances of this case. The Un ited States asserts on appeal that it simply does not know to which
lost sales the Panel's finding pertains. 2490 The European Union contends that the Panel was acting
within its discretion in making an overall assessme nt of significant lost sales without reference to
particular sales campaigns. According to the Euro pean Union, "much as panels are not required to
quantify price suppression, they may, but are not required to, precisely identify lost sales".2491
1232. As we have explained, we find the scope of th e Panel's lost sales finding to be unclear. In
particular, we do not know whether the Panel, in referring to "particular sal es campaigns of strategic
importance", was referring to the individua l sales campaigns evidence offered by the
European Communities in Annexes E and F to its first written submission, more broadly to the
"competitive sales campaigns" to which the European Communities referred in its submissions, or
perhaps to some other conception of what the Panel considered to be "strategic" sales campaigns. We
therefore do not see that the Panel's finding clearly evinces, as the European Communities claims, that
it made a "global" finding of significant lost sales.
1233. Moreover, we are concerned by the fact that, irrespective of whether the Panel made a finding
of significant lost sales on a global basis, or on the basis of individual sales campaigns, it did so
without referring to, or discussing in its reasoning, any of the evidence relating to lost sales advanced
by the European Communities in support of its lost sales claim.
1234. On appeal, the European Union explains that , because it brought a single claim of serious
prejudice that was merely "illustrated" by evidence of lost sales in particular sales campaigns, the
Panel acted within its discretion in making an ove rall assessment of significant lost sales without
reference to particular sales campaigns.
2492 However, we do not consider the fact that a claim of
serious prejudice may seek to rely on specific evidence to support a glob al finding of lost sales means
that a panel is free to conduct its reasoning without an y reference to, or analysis of, that evidence.

2489Appellate Body Report, EC and certain member States – Large Civil Aircraft, para. 1217.
2490United States' other appellant's submission, para. 362.
2491European Union's appellee's submission, para. 657.
2492European Union's appellee's submission, para. 655.
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Indeed, where certain evidence forms the foundation fo r a claim, we would consider it all the more
necessary for a panel to contend with that evidence and to explain wh y such evidence of a subset of
sales supports a broader finding of lost sales. We note, moreover, that the European Communities
argued before the Panel that the price effects of the subsidies depended on the extent of price
competition in particular sales campaigns. Given th e structure of the Europ ean Communities' claim,
we consider that the manner in which th e sales campaign evidence advanced by the
European Communities "illustrated" under what circumstances, and to what extent, lost sales occurred
is a matter that should have been addressed by the Panel.
1235. The European Union also argues that, althoug h the sales campaign evid ence was not referred
to in the Panel's analysis, the Panel did rely on it. The European Union maintains that the Panel
recognized that it was required by Article 11 of the DSU to evaluate the European Communities'
serious prejudice claim on the basis of all of the evidence presented to it, and that the Panel referenced
the lost sales evidence in its summa ry of the European Communities' submissions regarding the sales
campaigns described in Annexes E and F.
2493 We do not consider the fact that the Panel identified
that it had a duty to consider all of the evidence before it 2494, or that it acknowledged the existence of
the European Communities' sales campaign evidence in its summary of the parties' arguments 2495, is
sufficient to demonstrate that it properly engaged with the evidence in its reasoning regarding lost
sales. At no point in its analysis of the price effect s of the tied tax subsidies did the Panel refer to the
evidence of the European Communiti es, or the rebuttal of the United States, regarding lost sales
allegations in respect of specific sales campaigns.
1236. The Panel's failure to engage in its reasoning w ith the lost sales evidence is particularly
surprising given the different approach it took in analyzing the technology effects of aeronautics R&D
subsidies in the 200-300 seat LCA market. In that analysis, the Panel's scrutiny of the relevant sales
campaigns identified in Annex D to the European Communities' first written submission yielded a
finding that evidence relating to six of those campai gns did not constitute evidence of significant lost
sales caused by the relevant subsidies. 2496 In contrast, the Panel concluded that there was sufficient
evidence relating to the remaining four sales campai gns to support a conclusion of significant lost

2493European Union's appellee's submission, para. 658.
2494Panel Report, para. 7.1679.
2495Panel Report, para. 7.1622.
2496For six of the ten lost sales campaigns identified by the European Communities in Annex D to its
first written submission to the Panel, the Panel concluded that "factors other than the performance characteristics
of the 787 over the A330 or Original A350, and the 2008 delivery date for the 787, played a significant part in
the Boeing sale". (Panel Report, para. 7.1786)
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sales within the meaning of Article 6.3(c) of the SCM Agreement.
2497 E v e n i f w e w e r e t o a c c e p t ,
which we do not, that the Panel's lack of any explicit reference to the lost sales evidence in Annexes E
and F in its price effects analysis could be taken to mean that it considered all of that information to
support a finding of significant lost sales, the absence of any reference to, or analysis of, lost sales in
its reasoning stands in striking contrast to the Pa nel's explicit discussion of the reasons why particular
sales campaigns amounted to significant lost sales arising from the technology effects of the
aeronautics R&D subsidies in the 200-300 seat LCA market, whereas others did not.
(iii) Displacement and impedance
1237. The United States further submits that the Panel' s findings of displacement and impedance of
Airbus' LCA exports in third-country markets in the 100-200 seat and 300-400 seat LCA markets
failed to meet the requirements of Article 6.3(b) of the SCM Agreement. The United States contends
that the Panel failed to determine whether any of the countries in which the European Communities
alleged displacement or impedance occurred cons tituted a "market". The United States also argues
that, unlike the Panel's approach in consideri ng the 200-300 seat LCA market, the Panel failed to
identify the third countries in which displacement or impedance occurred.
1238. The European Union considers that the Panel co rrectly concluded that it was not required to
determine whether the European Communities had estab lished the existence of third-country markets,
nor was it required to identify or address individual third-country markets in order to reach a finding
of displacement or impedance.
1239. We recall the Panel's conclusion at the outset of its adverse effects analysis that, given the
global nature of competition in each of the three LCA product markets, it was not required to consider
whether the European Communities had established the existence of particular third-country
markets.
2498 The Panel also recognized, however, that it was nevertheless required to determine,
"based on evidence of sales occurring in those countr ies", whether there has been displacement and
impedance "in the particular country market".2499
1240. The Panel's entire assessment of the European Communities' displacement and impedance
claim is limited to paragraph 7.1822 of its Report. Having found it reasonable to infer that the effects
of the subsidies are significant in terms of lost sales and price suppression, the Panel concluded that

2497Panel Report, para. 7.1788. The Panel expressed the view that "the Qantas, Ethiopian Airlines and
Icelandair campaigns in 2005 and the Kenya Airways campaign in 2006, are ev idence of sales that Airbus did
not secure due to the advanced technological features of the 787, the availability of which at that time was
accelerated by the aeronautics R&D subsidies". (Ibid., para. 7.1787)
2498Panel Report, para. 7.1674.
2499Panel Report, para. 7.1674.
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such effects constitute significant lost sales and si gnificant price suppression within the meaning of
Article 6.3(c) of the SCM Agreement, "as well as displacement and impedance of exports from
third-country markets, within the meaning of Article 6.3(b)".
2500 We recall that, before the Panel, the
European Communities had argued that, given the nature of the competition in the 100-200 seat and
300-400 seat LCA markets, every lost sale to Airbus in a particular country "necessarily resulted in
the displacement or impedance of Airbus' mark et share in that third-country LCA market". 2501
Although the Panel did not address how the Europ ean Communities' claim of displacement and
impedance relates to its claim of lost sales, its finding also appears premised on the dependent
relationship between the two phenomena as asserted by the European Communities.
1241. We do not agree with the implication of the Panel's reasoning that the phenomena of
displacement and impedance necessarily follow from a finding of significant lost sales. In EC and
certain member States – Large Civil Aircraft, the Appellate Body acknowledged the potential overlap
of lost sales, and displacement and impedance, in that both phenomena relate to a firm's sales. The
Appellate Body, however, also identified distinc tions between these concepts. For example, the
Appellate Body observed that the assessment of displacement or impedance "has a well-defined
geographic focus"2502, whereas the relevant geographic market for assessing lost sales is not similarly
confined, and may even extend to the world market. The Appellate Body also noted that the fact that
lost sales must be "significant" implies that the assessment must have both quantitative and qualitative
dimensions, whereas the assessment of displaceme nt and impedance is primarily quantitative in
nature.2503 We are similarly troubled by the Panel's fail ure to distinguish in its analysis between the
phenomena of displacement and impedance. As we have explained in section X.B, these market
phenomena may overlap, but they are not interchangeable concepts.
1242. In addition, we are concerned by the absence of any analysis by the Panel regarding the
existence of displacement and impedance in partic ular third-country markets. Although we have
already rejected the United States ' argument that the Panel erred in failing to determine whether any
of the countries in which the European Communities alleged displacement or impedance constituted a
"market", we consider that the Panel erred in not identifying or discussing the third countries in which
displacement or impedance occurred. We reca ll that the European Communities identified six
specific sales campaigns that it alleged resulted in displacement and impedance in Singapore,
Indonesia, and Japan with respect to the 100-200 seat LCA market; and in Singapore, New Zealand,

2500Panel Report, para. 7.1822.
2501European Union's appellee's submission, para. 684.
2502Appellate Body Report, EC and certain member States – Large Civil Aircraft, para. 1218.
2503Appellate Body Report, EC and certain member States – Large Civil Aircraft, para. 1218.
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and Hong Kong, China with respect to the 300-400 seat LCA market.
2504 In its analysis of the price
effects of the tied tax subsidies in the 100-2 00 seat and 300-400 seat LCA markets, however, the
Panel neither referred to nor addressed any of the evidence regarding the specific sales campaigns set
out in Annexes E and F to the European Commun ities' first written submission, or the relevant
third-country markets in which those sales occurred. Thus, although the Panel properly recognized at
the outset of its serious prejudice analysis that it was required to determine, "based on evidence of
sales occurring in those countries", whether there had been displacement and impedance "in the
particular country market"2505, it subsequently referred only generally to "displacement and impedance
of exports from third country markets" without specifying to which sales occurring in which markets
its findings apply.
2506 Given the "well-defined geographic focus" 2507 of Article 6.3(b), a panel's
analysis of displacement and impedance must engage with the evidence of the particular third-country
market or markets in which such market phenomena are alleged. Accordingly, we do not consider
that it was appropriate for the Panel to conduct an analysis of displacement and impedance without
any reference to or discussion of the specific c ountries or sales campaign evidence advanced by the
European Communities in support of its claim.
1243. We further note that, although the Panel stated that its findings of displacement and
impedance during the reference period "can only be definitely established by relevant delivery
data"2508, the Panel did not refer to, or assess, any such data in its price effects analysis. Indeed,
because the sales campaign evidence of the European Communities related to orders that were made
during the reference period from 2004 to 2006, deliveries of certain LCA at issue would not have
taken place until after the reference period. This may have b een pertinent information in respect of a
finding of threat of displacement and impedance, a finding the Panel did not make in connection with
the effects of the tied tax subsidies in the 100-200 seat and 300-400 seat LCA markets.
1244. The Panel's failure to engage in its reasoning with evidence of individual sales campaigns in
which the European Communities alleged displaceme nt and impedance is particularly surprising
given the different approach that it took in its an alysis of the technology effects of the aeronautics
R&D subsidies in the 200-300 seat LCA market. We recall that, having concluded that four of the
sales campaigns constituted lost sales, the Panel proceeded to an alyze order and delivery data
regarding A330, Original A350, and 787 sales ove r a period from 2001 to 2013 in the third-country

2504Panel Report, para. 7.1622.
2505Panel Report, para. 7.1674.
2506Panel Report, paras. 7.1822, 7.1823, and 7.1833.
2507Appellate Body Report, EC and certain member States – Large Civil Aircraft, para. 1218.
2508Panel Report, para. 7.1686.
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markets of Australia, Ethiopia, Iceland, and Kenya.
2509 Even if we were to accept, which we do not,
that the Panel's lack of any explicit reference to campaign-specific evidence in Annexes E and F
meant that it considered all of that information to support its findings of displacement and impedance,
the absence of any reference to, or analysis of, specific countries or sales campaign evidence stands in
striking contrast to the Panel's explicit discussion of the third country markets to which its findings
pertain in its analysis of the technology effects of aeronautics R&D subsidies in the 200-300 seat LCA
market.
(c) Overall assessment of the Panel's analysis of the price effects of the
tied tax subsidies
1245. In the foregoing analysis, we examined various aspects of the Panel's assessment of the price
effects of the tied tax subsidies.
1246. We reviewed features of the Panel's assessment of the effects of the tied tax subsidies on
Boeing's and Airbus' LCA prices. In respect of the nature of the subsidies, we noted that it was
accepted by the parties that the subsidies were tied to sales of LCA, and that the FSC/ETI subsidies
amounted to $2.2 billion over the period from 1989 to 2006, and $435 milli on during the reference
period from 2004 to 2006. We further noted that th e Panel, in observing that subsidies contingent on
export sales have trade-distortive effects, was indicati ng only that the nature of the FSC/ETI subsidies
increased the likelihood that such effects will occur. Accordingly, we did not consider that the Panel
was relying on a presumption that export subsidie s cause adverse effects within the meaning of
Part III of the SCM Agreement. We also considered that, alt hough the Panel should have explained
why it rejected the relevance of data showing the relative magnitude of the FSC/ETI subsidies in
relation to LCA values, it nevertheless took into account other considerations concerning the
magnitude of these subsidies in relation to the market effects.
1247. We further found that, although the Panel conc luded that the tied tax subsidies established
only the possibility or likelihood that Boeing would "lower its prices beyond the level that would
otherwise have been economically justifiable", th e Panel did not establish under what circumstances,
or to what extent, this would occur in particular sales campaigns. Accordingly, the Panel did not
provide a reasoned basis for its generalized finding th at the tied tax subsidies led Boeing to lower its

2509Panel Report, para. 7.1790. The Panel set out delivery data for the years up to and including 2006,
and projected future deliveries on the basis of order data for the years from 2007 onwards. ( Ibid.) The Panel
then assessed the implications of this evidence for the European Communities' claims of displacement and
impedance, and threat of di splacement and impedance. ( Ibid., para. 7.1791) The Panel concluded that, but for
the aeronautics R&D subsidies, Airbus would have obtained additional LCA orders from customers in these
sales campaigns, and thus would not have suffered the threat of displacement or impedance of its exports in
third-country markets within the meaning of Article 6.3(b). (Ibid., paras. 7.1791 and 7.1794)
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prices in a manner causing Airbus to lose sales or to secure sales only at reduced prices. Moreover,
we found that the Panel did not properly identify or discuss in its analysis any of the specific
considerations and factors identified by the Unite d States as other factors that explain the market
effects on Airbus' sales and prices.
1248. We also addressed issues regarding the Panel' s basis for establishing the existence of the
discrete market effects under Article 6.3(b) and (c). We explained that the Panel reached its serious
prejudice findings with respect to the 100-200 seat and 300-400 seat LCA markets without identifying
or assessing: (i) any pricing or market share info rmation supporting the existence of significant price
suppression; (ii) any LCA sales or sales campaigns constituting significant lost sales; or (iii) any of
the third-country markets in which the displacement or impedance of Airbus' LCA exports occurred.
In our view, the Panel's failure to address these el ements in its causation analysis undermined the
basis for its conclusions that the tied tax subsidies caused significant price suppression, significant lost
sales, and displacement and impedance within the meaning of Article 6.3(b) and (c).
2510
1249. Taken together, the deficiencies we have iden tified in the Panel's reasoning amount to legal
error in the Panel's analysis of serious prejudi ce in the 100-200 seat and 300-400 seat LCA markets.
In our view, the Panel did not provide a proper legal basis for its generalized findings that significant
price suppression, significant lost sales, and disp lacement and impedance, within the meaning of
Article 6.3(b) and (c) of the SCM Agreement, were the effects of: (i) the FSC/ETI subsidies and the
Washington State B&O tax rate reduction in the 1 00-200 seat LCA market; and (ii) the FSC/ETI
subsidies and the Washington State and the City of Everett B&O tax rate reductions in the 300-400
seat LCA market. We therefore reverse the Panel's findings, under Articles 5(c) and 6.3(b) and (c) of
the SCM Agreement, in paragraphs 7.1823, 7.1833, 7.1854(b) and (c), and 8.3(a)(ii) and (iii) of the
Panel Report.
(d) Completion of the analysis
1250. We now turn to consider whether we can complete the analysis and rule on the
European Union's claim that the tied tax subsidi es caused serious prejudice within the meaning of
Articles 5(c) and 6.3(b) and (c) of the SCM Agreement. In previous disputes, the Appellate Body has

2510We note the United States' contention that the Panel, by failing to specify the third-country markets
and lost sales in support of its findings under Article 6.3(b) and (c), respectively, did not comply with the
requirements set out in Article 12.7 of the DSU. (United States' other appellant's submission, para. 363)
Because we consider that the Panel's failure to specify lost sales and third-countr y markets in its reasoning
undermined the basis for its findings of significant lost sales and displacement and impedance, we find it
unnecessary to rule on this claim of the United States on appeal.
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emphasized that it can complete the analysis "onl y if the factual findings of the panel, or the
undisputed facts in the panel record" provide a sufficient basis for the Appellate Body to do so.
2511
1251. We recall below findings and uncontested facts on the Panel record as they relate to the nature
of the tied tax subsidies, their magnitude, the cond itions of competition in the LCA industry, and the
particular sales campaign evidence supplied by the European Communities.
1252. Regarding the nature of the tied tax subsidi es, because the FSC/ETI subsidies and the B&O
tax rate reductions lowered the taxes that Boeing pa id in respect of revenue obtained on each LCA
sale, they are directly tied to those sales. 2512 The United States agreed that subsidies that are tied to
sales have an impact on those sales.2513 The Panel also pointed out that the United States had supplied
an exhibit endorsing the view that subsidies tied to production can have a significant impact on prices
and output. 2514 Because these subsidies lower the taxes incurred in connection with sales of LCA,
they increase Boeing's after-tax revenue and profita bility, and therefore have a more direct and
immediate relationship to aircraft prices and sales than other subsidies at issue in this dispute, such as
the aeronautics R&D subsidies.
2515
1253. We have, moreover, agreed with the Panel's ass essment that the FSC/ETI subsidies are more
likely to produce adverse trade effects in the market. 2516 Generally speaking, subsidies contingent on
export modify the incentives faced by a domestic producer, reward discrimination in favour of
production for export markets over the domestic market , and thereby reduce export prices. We also
note the duration of the FSC/ETI subsidies, which the Panel believed to be a relevant

2511Appellate Body Report, US – Hot-Rolled Steel , para. 235. See also Appellate Body Reports in
EC – Hormones , paras. 222 ff; EC – Poultry , paras. 156 ff; Australia – Salmon , paras. 117 ff and 193 ff;
US – Shrimp, paras. 123 ff; Japan – Agricultural Products II, paras. 112 ff; and EC – Asbestos, paras. 133 ff.
Where this has not been the case, the Appellate Body ha s declined to complete the analysis. See Appellate
Body Reports in Australia – Salmon , paras. 209 ff, 241 ff, and 255; Korea – Dairy , paras. 91 ff and 102 ff;
Canada – Autos , paras. 133 ff and 144 ff; Korea – Various Measures on Beef , paras. 128 ff; EC – Asbestos ,
paras. 78 ff; and Canada – Dairy (Article 21.5 – New Zealand and US), paras. 98 ff.
2512Panel Report, paras. 7.1806 and 7.1807.
2513Panel Report, para. 7.1806 (referring to Unite d States' comments on the European Communities'
2514Panel Report, para. 7.1806 (referring to United States' response to Panel Question 298, para. 522;
and J.E. Stiglitz and B.C. Greenwald, "On the Question of the Impact of Subsidies on Supply and Prices in the
LCA Market" (Panel Exhibit US-1309), p. 4). The Un ited States also stated that "subsidies tied to the
development, production and/or sale of particular aircraft are supply-creating in nature and, thus, have a direct,
significant and lasting impact on competition". (United States' response to Panel Question 286, para. 501)
2515Panel Report, para. 7.1807.
2516See supra, para. 1185.
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consideration.
2517 The initial FSC regime was enacted prior to the creation of the WTO, and the
Panel's reasoning shows that Boeing had been a beneficiary of these subsidies for many years.2518
1254. With respect to the magnitude of the tied tax subsidies, we recall that they amounted to
$2.2 billion over the period from 1989 to 2006. 2519 By far the majority of this amount was accounted
for by the FSC/ETI subsidies, not ably because Boeing began to receive the B&O tax rate reductions
only during the reference period. 2520 Boeing was the largest beneficiary of FSC/ETI subsidies for a
six-year period through 2002. 2521 During the reference period, Boeing received $435 million in
FSC/ETI subsidies, $13.8 million from the B&O tax ra te reduction in the State of Washington, and
$2.2 million from the B&O tax rate reduction in the City of Everett. 2522 Particularly when taken
together, these subsidy amounts appear substantial in absolute terms. At th e same time, as we have
already observed, the relative magnitude of subsidies may also be relevant to an analysis of the effects
of subsidies on prices.2523 In this dispute, however, there is little on the Panel record that can assist us
in determining, on a generalized basis, the rela tive significance of the magnitude of these subsidies
when compared to, for example, prices in the relevant markets 2524, Boeing's production costs, or the
overall size of the relevant markets or of Boeing's sales in each such market. 2525 While it is possible
to observe, at a high level of generalization, that th e annual value of Boeing's sales is many orders of
magnitude greater than the annual value of the subs idies, this alone does not tell us much about the
significance of these amounts, as the Panel also observed. 2526 This is because even relatively small
subsidies may have significant effects, depe nding on the nature of the subsidies, and the
circumstances in which those subsidies are receive d, including the relevant market structure and
conditions of competition in that market. In the circumstances of this dispute, for example,
considerations that would appear to bear on the issue of the significance of these amounts include the
nature of the subsidies as tied tax subsidies, th e dynamics of price competition between Boeing and
Airbus in a duopolistic market, and whether the bene fits of the tied tax subsidies received by Boeing

2517Panel Report, paras. 7.1811 and 7.1820.
2518Panel Report, paras. 7.1811 and 7.1817.
2519Panel Report, para. 7.1811.
2520The Washington State B&O tax rate reduction came in to effect in 2003 (Panel Report, para. 7.43)
and the City of Everett B&O tax rate reduction was passed in 2004 (ibid., para. 7.308).
2521Panel Report, para. 7.1817.
2522Panel Report, para. 7.1811.
2523See supra, para. 1193.
2524Generally speaking, the price information that is contained in the Panel record is not evidence of
actual prices to specific customers in particular campai gns. While there is eviden ce of each manufacturer's list
prices for its basic airframes, such catalogue prices are acknowledged to be higher than the prices actually
negotiated with customers at the time that orders are placed, especially in competitive sales campaigns.
2525Various comparators were put before the Panel by the parties in order to demonstrate the relative
significance (European Communities) or insignificance (U nited States) of the tied tax subsidies. The Panel,
however, did not accept the European Communities' cal culation of per-aircraft su bsidy magnitudes (Panel
Report, para. 7.1813), or attempt to make such a calculation itself.
2526Panel Report, para. 7.1816.
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were applied to its prices across the board in all sales, or whether they were disproportionately applied
to lower prices only in respect of certain sales.
1255. Although it might have been relevant for th e Panel to compare the per-unit subsidy
magnitudes to per-unit prices or production costs, th e Panel does not appear to have pursued such an
analysis. It did, however, cite to certain anecdotal evidence that it found to "point quite clearly to the
significance of the FSC/ETI subsidies to Boeing' s ability to compete on price against Airbus".
2527
Certain elements of this evidence bear on the issue of the magnitude of those subsidies. The Panel
pointed to evidence showing that, "over the six-year period end{ing} in 2002, Boeing was the largest
FSC/ETI beneficiary". 2528 In addition, the Panel referred to statements by Airbus and Boeing
executives and the US Trade Representative suggesting that the purpose of the scheme was to enhance
Boeing's competitiveness and that, without the FSC/ETI subsidies, Boeing would lose market
share.2529 In other words, the Panel explained, this was evidence that Boeing itself "regarded the
FSC/ETI measures {as} an important aspect of its ability to compete." 2530 Taken together, these
considerations persuaded the Panel that the tied tax subsidies "enabl ed Boeing to lower its prices
beyond the level that would otherwise have been economically justifiable". 2531 On this basis, we
consider that the record supports the view that the absolute amount of the tied tax subsidies was
significant, and provides some support for the proposition that these amounts also had relative
significance in that, when deployed strategically, the benefits were of a sufficient magnitude to
contribute to Boeing's ability to win sales from, or suppress prices of, Airbus in particular campaigns.
1256. As the Panel recognized in its evaluation of the technology effects of the aeronautics R&D
subsidies, "the particular conditions of competition in the LCA industry" are also a relevant factor in
evaluating whether subsidies have caused serious prejudice in a particular market.
2532 Before the
Panel, the European Communities contended that th e conditions of competition in the relevant LCA
industry provided Boeing with the incentive to "use th e subsidies to lower its LCA prices in the three
LCA product markets, most particularly in so-called 'competitive' sales campaigns."2533

2527Panel Report, para. 7.1818.
2528Panel Report, para. 7.1817.
2529Panel Report, para. 7.1817.
2530Panel Report, para. 7.1817.
2531Panel Report, para. 7.1818.
2532Panel Report, para. 7.1765.
2533Panel Report, para. 7.1619. The European Communities identified the following key characteristics
of the LCA market which it argued give rise to this pricing incentive: "duopoly structure characterized by heavy
price and quality competition, increasing returns to scal e, a steep learning curve, switching costs for customers,
heterogeneous products, customer specific configurations, high order volumes and small batch outputs and the
need for a continuous delivery stream." ( Ibid. (referring to European Communities' comments on the
United States' response to Panel Question 391, para. 334))
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1257. Many characteristics of the LCA industry were th e subject of findings by the Panel or are
uncontested. We recall that each of the relevant LCA product markets operates as a duopoly, and that
Airbus and Boeing each possess market power.
2534 In addition, the Panel observed that each
manufacturer may, through its supply and pricing decisions, influence the pricing of the other.2535 We
understand this to mean that, although an LCA manufacturer will enjoy greater autonomy in its
pricing decisions in sales campaigns that are less sens itive with respect to price, such flexibility will
be constrained and influenced in more price-sens itive campaigns by the pricing behaviour of the rival
LCA manufacturer. In this duopolistic market, th e effects of one firm's commercial behaviour
—including any price effects resulting from subsid ies—will necessarily impact the rival firm. 2536
1258. Differences in the price, capacity, and direct operating cost of competing LCA are the most
significant factors that determine the outcome of LCA sales campaigns. 2537 The relative importance
of each of these factors, and the extent to which it may be determinative in a specific campaign, varies
considerably.2538 Certain LCA sales campaigns are accordingly more competitive and more price-
sensitive than others. 2539 Both parties agreed that, because th e performance characteristics of the
competing LCA are fixed at the time of a sales campai gn, the principal variables that can be modified
during such a campaign are the price and price-related concessions. 2540 Price concessions can offset
disadvantages associated with non-price factors, a lthough in some sales campaigns the amount of the
price concession required to do so may be significant.2541
1259. With regard to the level of price competition in particular sales campaigns, the Panel appears
to have acknowledged that price competition is more intense in some campaigns than in others. 2542
The Panel, moreover, identified certain circumstances in which price considerations are more likely to

2534Panel Report, para. 7.1688.
2535Panel Report, para. 7.1688.
2536As opposed to a market structure in which the lo sses associated with the strategic behaviour of a
particular firm can be spread among many suppliers, the effects of commercial action by a duopolist to, inter
alia, lower price, expand production, or increase exports, will be borne solely by that firm's rival.
2537Panel Report, para. 7.1694. Customers calculate the net present value of LCA offers by comparing
the present value of costs associated with aircraft acquisition against the present value of the revenue stream
expected to be generated by the proposed fleet. (Panel Report, para. 7.1694 (referring to C. Scherer, Airbus
SAS, "Commercial Aspects of the Aircraft Business from the Perspective of a Manufacturer" (March 2007)
(Panel Exhibit EC-11 (BCI)), paras. 76-78))
2538Panel Report, para. 7.1694 and footnote 3568 thereto (referring to R.P. Muddle, Airline Capital
Associates, Inc., "The Dynamics of the Large Civil Ai rcraft Industry" (March 2007) (Panel Exhibit EC-10),
para. 49).
2539Panel Report, paras. 7.1694 and 7.1820.
2540European Communities' response to Panel Question 81, para. 321; United States' comments on the
European Communities' response to Panel Question 81, para. 275.
2541Panel Report, para. 7.1694 (referring to R.P. Muddle, Airline Capital Associates, Inc., "The
Dynamics of the Large Civil Aircraft Industry" (March 2007) (Panel Exhibit EC-10), paras. 98-102).
2542Thus, for example, the Panel referred to "the pri ce-sensitive nature of certain significant LCA sales
campaigns". (Panel Report, para. 7.1820)
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influence a customer's purchase decision, including when the buyer is a leasing company rather than
an airline.
2543 Moreover, we note that Boeing altered its overall pricing strategy in late 2004/2005 and
became more "aggressive" on price. 2544 Furthermore, price appears to have been a particularly
important consideration in the 100-200 seat LCA market due to the relatively high degree of
substitutability between the A320 and the 737NG 2545, and the fact that many customers within this
product market are low-cost carriers, which are particularly price-sensitive. 2546 We also note that, in
at least some instances, competition between rival LCA manufacturers is affected by "switching
costs"—that is, the costs that buyers who operate one family of aircraft must incur to switch to a new
supplier.2547 The existence of switching costs in a particular sales campaign implies that an incumbent
supplier has a pricing advantage that the rival supplier will need to overcome in its overall offer.
1260. Generally speaking, a profit-maximizing firm will price its product at a level that ensures that
it can cover its average cost of production plus a margin of profit, the magnitude of which will depend
on the conditions of market competition. 2548 All other things being e qual, a firm provided with a
subsidy that is tied to production or sale enjoys the ability to lower its price while nevertheless
achieving the same profit margin. In effect, the subs idy enhances the firm's ability to lower its prices
in order to obtain a sale, notwithstanding that the outcome of any given sale, and the importance of
price to that outcome, will still be dictated by the prevailing competitive conditions, including the
market power and the pricing strategies of the participan ts, in a particular market. In this dispute, we
consider that, given the nature of the tied tax subsidies, their operation over time, their magnitude, and
the competitive conditions in the LCA market, Bo eing had both the ability and incentive to use the
tied tax subsidies to lower prices, and that there was a substantial likelihood that this occurred in sales
campaigns that were particularly competitive and sens itive in terms of price. On that basis, where it
can be established that Boeing was under particular pressure to reduce its prices in order to secure
LCA sales in particular sales campaigns, and there are no other non-price factors that explain Boeing's

2543Panel Report, footnote 3567 to para. 7.1694 (referring to C. Scherer, Airbus SAS, "Commercial
Aspects of the Aircraft Business from the Perspective of a Manufacturer" (March 2 007) (Panel Exhibit EC-11
(BCI)), para. 36), and footnote 3557 to para. 7.1689 (referring to R.P. Muddle, Airline Capital Associates, Inc.,
"The Dynamics of the Large Civil Aircraft Industry" (March 2007) (Panel Exhibit EC-10), para. 26).
2544Panel Report, Appendix VII.F.2 – The Cabral Model, p. 777, para. 68 and footnote 4250 thereto.
2545See supra, footnote 2344. Although airframe prices negotiated at the time LCA are ordered are
typically lower than list prices, we note that there is a similar range of list prices for the 737NG and A320. (See
supra, para. 1154)
2546European Communities' second written submission to the Panel, para. 889; United States' first
written submission to the Panel, para. 1027.
2547Panel Report, footnote 3776 to para. 7.1818 (referring to R.P. Muddle, "The Dynamics of the Large
Civil Aircraft Industry" (March 2007) (Panel Exhibit EC -10), para. 97; C. Scherer, Airbus SAS, "Commercial
Aspects of the Aircraft Business From the Perspective of a Manufacturer" (March 2007) (Panel Exhibit EC-11
(BCI)), para. 53; and Dr. J. Jordan and Dr. G. Dorman, "Reply to the Report of Professor Cabral" (NERA
Economic Consulting, 2007) (Panel Exhibit US-3), p. 15).
2548In principle, a profit margin is expected in conditions of imperfect competition, such as a duopoly.
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success in obtaining the sale or suppressing Airbus' pricing, we can conclude that the subsidies
contributed in a genuine and substantial way to the lowering of Boeing's prices. We are moreover
satisfied that the effect of such price reductions in the markets at issue was that Boeing either won the
sale from Airbus, or that Airbus was forced to su ppress its own price in order to secure the sale.
Notwithstanding that we consider that this dynami c clearly manifested itself in LCA sales campaigns
where price competition between LCA manufacturers w as particularly intense, we are not persuaded
that it can be assumed that this was so in each and every sales campaign in the relevant LCA markets.
1261. It follows from the above that we do not consid er that the factual findings and uncontested
facts drawn from the Panel record that relate to the nature and magnitude of the subsidies, and the
conditions of competition in the relevant markets, themselves suffice to estab lish the requisite causal
connection between the tied tax subsidies and the effects on Airbus' LCA sales and prices on a
generalized basis. Instead, we can only reach a finding of serious prejudice based on the above if we
can also identify uncontested facts on the Panel r ecord that satisfy us that the pricing dynamic
described above occurred in particular LCA sales campaigns.
2549 Accordingly, we continue our
examination of the relevant factual findings and unc ontested facts and scrutinize, in particular, the
Panel record as it relates to particular LCA sal es campaigns during the reference period in the
100-200 seat and 300-400 seat LCA markets.2550
1262. We have examined the sales campaign evidence set out in HSBI Annexes E and F to the
European Communities' first written submission to th e Panel. These annexes set out individual sales
campaigns which, the European Communities asserted, illustrate and support the claim that Boeing's
subsidy-enabled low prices caused serious prejudice. Annex E identifies 11 sales campaigns in the
100-200 seat LCA market—five of which were offe red in support of the European Communities'
allegation of significant lost sales
2551; and six that were advanced in support of its allegation of
significant price suppression. 2552 Annex F identifies four sales campaigns in the 300-400 seat LCA

2549See section VI.B.2 of this Report. This approach is analogous to the approach adopted by the
Appellate Body in EC and certain member States – Large Civil Aircraft . (See Appellate Body Report, EC and
certain member States – Large Civil Aircraft, paras. 924-929, 1175, 1178, and 1180-1202)
2550We do not exclude the possibility that serious prejudice could have been established in these LCA
product markets on some other basis, perhaps without relying on the circumstances of particular sales
campaigns. However, based on the Panel record before us, we do not consider that we can complete the
analysis and reach any finding of serious prejudice in the absence of such an examination.
2551Panel Report, para. 7.1622. The lost sales evidence in the 100-200 seat LCA market consisted of
the following sales campaigns: Ryanair (2000-2002); JAL (2005); Singapore Airline Leasing Enterprise
(2005); Lion Air (2005); and DBA (2005). The European Communities also explained that these campaigns
were evidence of displacement and impedance of Airbus A320 exports in the third- country markets of Japan,
Singapore, and Indonesia.
2552Panel Report, para. 7.1622. The price suppression evidence in the 100- 200 seat LCA market
consisted of the following sales campaigns: easyJet (2002); Air Berlin (2004); Iberia (2005); Aegean (2005);
Air Asia (2005); and Hamburg International (2005).
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market—three of which were offered in suppor t of the European Communities' allegation of
significant lost sales
2553; and one that was advanced in suppor t of its allegation of significant price
suppression.2554 We have also examined the subsequent submissions of the United States and the
European Communities containing arguments and evidence relating to these various sales
campaigns.2555 In its submissions, the European Co mmunities recounted a competitive pricing
dynamic for each of these campaigns in which Boeing and Airbus presented a series of progressively
lower offers and counteroffers to customers. The United States did not contest the
European Communities' factual description of the negotiation for each of these campaigns, in
particular, the identity of the customer, when th e campaign took place, the number of LCA orders
obtained, or which manufacturer was successful in obt aining the orders. Nor did the United States
dispute that, in each sales campaign, Boeing and Ai rbus both responded to the request for proposals
from an airline or leasing company, and that they each presented more than one offer over the course
of the negotiation.
1263. The parties, however, disagreed over the extent to which the tied tax subsidies contributed to
the market effects experienced by Airbus in the 100-200 seat and 300-400 seat LCA markets. The
European Communities maintained that price was a key element in the negotiations with customers,
and that, in all of the sales campaigns, [ ***

2556 In respect of the sales
campaigns submitted as evidence of lost sales and displacement and impedance, the European
Communities argued that Boeing offered its LCA at a net price that was lower than what Airbus was
reasonably able to offer for its product, and that th e magnitude of the subsidies at issue was enough to
cover the margin of victory between th e final net prices of Boeing and Airbus. 2557 With regard to the
sales campaigns submitted as evidence of price supp ression, the European Communities argued that

2553Panel Report, para. 7.1622. The lost sales evidence in the 300-400 seat LCA market consisted of
the following sales campaigns: Singapore Airlines (2004); Air New Zealand (2004); and Cathay Pacific
(2005). The European Communities also explained that these campaigns were evidence of displacement and
impedance of Airbus A340 exports in the third-country markets of Singapore, New Zealand, and Hong Kong,
China.
2554Panel Report, para. 7.1622. The price suppression evidence in the 300- 400 seat LCA market
consisted of a single sales campaign involving Lufthansa (2004).
2555See European Communities' first written submission to the Panel, Annex E – 737NG Campaign
Annex (HSBI) and Annex F – 777 Campaign Annex) (HSBI); United States' first written submission to the
Panel, US Campaign Annex (HSBI); European Comm unities' second written submission to the Panel, Full
HSBI Appendix; United States' second written submission to the Panel, Full HSBI Appendix.
2556European Communities' first written submission to the Panel, Annex E – 737NG Campaign Annex
(HSBI), paras. 3-7 and 64-67; and Annex F – 777 Campaign Annex (HSBI), paras. 2-5 and 39-40.
2557See European Communities' first written submission to the Panel, Annex E – 737NG Campaign
Annex (HSBI), paras. 14, 27, 36, 44, 56, and 57. See also, ibid., Annex F – 777 Campaign Annex (HSBI),
paras. 11, 21, 29, and 31.
BCI deleted, as indicated [***] WT/DS353/AB/R
 HSBI omitted, as indicated [[HSBI]] Page 527

Boeing was able to use its subsidy-enhanced financ ial strength in order to sustain downward pricing
pressure on Airbus.
2558
1264. In its rebuttal of the European Communities' sales campaign evidence, the United States
identified a number of "other factors" that, in its view, undermined a causal link between the tied tax
subsidies and the market effects on Airbus' LCA sales and prices. We explained that the Panel should
have discussed whether the considerations and factors identified by the United States constitute "other
factors" and, if so, how they, in relation to the tie d tax subsidies, contributed to the effects on Airbus'
LCA sales and prices. The Panel, however, did not do so. Where the United States advanced other
factors in respect of particular sales campaigns that were capable of explaining the effects on Airbus'
LCA sales and prices, we must treat as disputed whether or not the other factor or factors sufficed to
attenuate a genuine and substantia l relationship between the tied tax subsidies and those effects.
Accordingly, in such circumstances, we will not be able to complete the analysis in respect of these
sales campaigns.
1265. Other factors alleged by the United States include d that: (i) customers with existing Boeing
fleets factored switching costs into their decisions su ch that Airbus was required to lower its prices in
order to offset the costs associated with converting to the operation of Airbus fleets
2559; (ii) the
technological inferiority of Airbus LCA played out in Airbus' need to reduce prices in order to remain
competitive, particularly in the 300-400 seat LCA market
2560; (iii) Airbus itself was responsible for
customers' low price expectations due to the low prices that Airbus had offered to other customers in
previous sales campaigns 2561; and (iv) some customers intended to acquire aircraft for various LCA
markets, including the 200-300 seat LCA market, as part of the same order, and such customers
ultimately chose Boeing's overall offer because of their preference for the 787.2562

2558See European Communities' first written submission to the Panel, Annex E – 737NG Campaign
Annex (HSBI), paras. 80, 92, 101, 113, 123, 131, and 132. See also, ibid., Annex F – 777 Campaign Annex
(HSBI), para. 55.
2559See, for example, United States' first written submission to the Panel, US Campaign Annex (HSBI),
paras. 82, 92, 105, 110, 127, 131, 135, and 139.
2560See, for example, United States' first written submission to the Panel, US Campaign Annex (HSBI),
paras. 115, 129, 148, 156, 159, and 167.
2561See, for example, United States' first written submission to the Panel, US Campaign Annex (HSBI),
paras. 112 and 116.
2562See, for example, United States' first written submission to the Panel, US Campaign Annex (HSBI),
para. 148. This relates to the Air New Zealand cam paign for which the United States also identified a
potentially valid "other factor" relating to the fuel burn efficiency of the 777 versus the A340. See infra,
para. 1268.
WT/DS353/AB/R BCI deleted, as indicated [***]
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1266. In our view, certain other factors identified by the United States were clearly capable of
attenuating a genuine and substantial relationship between the tied tax subsidies and effects on Airbus'
LCA sales and prices, especially where they al lowed Boeing to avoid ma king additional price
concessions in particular sales campaigns.
2563 For instance, the United States argued that, where
Boeing was the incumbent supplier in certain sal es campaigns, it benefited from a switching cost
advantage. Similarly, the United States maintained that, for certain sales campaigns, Boeing benefited
from other non-price advantages due to superior featur es of its aircraft, such as the higher fuel burn
efficiency of the 777 versus the A340. As we have explained above, in cases where these conditions
are present, it suggests that Boeing could have ha d an advantage that did not place it under the same
pressure to lower LCA prices. 2564 In those circumstances, we could not conclude that there was a
genuine and substantial re lationship between the tied tax subsidi es and the market effects through the
lowering of Boeing's prices, given that Airbus may have lost the sale or suppressed its prices for
reasons other than Boeing's low prices.
1267. We have also explained that certain "other factors" may not be capable of attenuating a
genuine and substantial re lationship between the tied tax subsidies and the market effects if they
reflect part of the competitive pricing dynamic in a duopolistic market.2565 In these circumstances, the
sequence in which prices were reduced by Boeing and Airbus in particular sales campaigns or over
time has little bearing on whether the subsidies were used to effect price reductions of Boeing LCA
and lost sales and price suppression for Airbus. Ra ther, based on the Panel's account of the nature,
duration, and magnitude of the tied tax subsidies, and the competitive conditions in the LCA industry,
the fact that Boeing reduced prices under intense pr ice competition in a duopoly market is paramount.
Accordingly, we do not consider that such ob servations about the sequence of price reductions
constitute "other factors" to be assessed in relation to the causal work of the tied tax subsidies.

2563See Panel Report, footnote 3569 to para. 7.1694 (referring to C. Scherer, Airbus SAS, "Commercial
Aspects of the Aircraft Business from the Perspective of a Manufacturer" (March 2 007) (Panel Exhibit EC-11
(BCI)), paras. 76-78). There, the Panel stated:
According to Scherer, most disadvantages compared with the proposal of
the competing LCA manufacturer can be compensated for by providing
additional concessions, subject to profitability constraints. Conversely,
every advantage over the competitor's proposal can be used to avoid making
additional concessions{.}
2564See supra, para. 1214.
2565See supra, para. 1213.
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1268. For the four sales campaigns in the 300-400 seat LCA market, the United States maintained
that Boeing benefited from a technological advantage sought by customers, consisting of the fuel burn
efficiency enjoyed by the two-engi ne 777 versus the four-engine A340.
2566 We consider this a
potentially valid "other factor" contributing to th e effects on Airbus' LCA sales and prices, but note
that the causal significance of this factor is disput ed between the parties, and that the Panel made no
findings as to the relevance of this factor in particular sales campaigns. We therefore cannot complete
the analysis with respect to these sales campaigns.
1269. For nine of 11 sales campaigns in the 100-200 seat LCA market, the United States maintained
that Boeing benefited from a technological advantage sought by customers 2567, or from a switching
cost advantage.2568 These two contentions are also valid "oth er factors" potentially contributing to the
effects on Airbus' LCA sales and prices. Because th e causal significance of these factors is disputed
between the parties, and given that the Panel made no findings as to their relevance in particular sales
campaigns, we also cannot complete the analysis with respect to these campaigns.
1270. For two remaining sales campaigns in the 100-2 00 seat LCA market, both relating to alleged
lost sales in the 100-200 seat LCA market, the Un ited States did not specifically identify the above
non-price advantages as "other factors" contributing to the effects on Airbus' sales and prices.
1271. With respect to the remaining two sales campaigns, we note that, in February 2005, Japan
Airlines ("JAL") concluded an agreement with Bo eing resulting in 30 firm orders, and 10 options,
for 737NGs2569; and that Singapore Aircraft Leasing En terprise ("SALE") concluded an agreement
with Boeing in May 2005, resulting in 20 fi rm orders, and 20 purchase rights, for 737NGs. 2570 With
respect to both campaigns, the parties agreed that Boeing and Airbus were engaged in a negotiating

2566This relates to the following sales campaigns: Singapore Airlines (2004); Air New Zealand (2004);
Lufthansa (2004); and Cathay Pacific (2005).
2567This relates to the following sales campaigns: Iberia (2005); and Lion Air (2005).
2568This relates to the following sales campaigns: easyJet (2002); Ryanair (2002); Air Berlin (2004);
DBA (2005); Aegean (2005); Air Asia (2005); Lion Air (2005); and Hamburg International (2005).
2569European Communities' first written submission to the Panel, Annex E – 737NG Campaign Annex
(HSBI), para. 37; United States' first written submission to the Panel, US Campaign Annex (HSBI), para. 120
(referring to JAL Press Release, Japan Airlines Decided on Boeing 737 Next Generation Series (4 February
2005) (Panel Exhibit US-1064 (HSBI))).
2570European Communities' first written submission to the Panel, Annex E – 737NG Campaign Annex
(HSBI), para. 8; United States' first written submissi on to the Panel, US Campaign Annex (HSBI), para. 122
(referring to SALE Press Release, SALE to order up to 40 Boeing Next-Generation 737 Aircraft (26 May 2005)
(Panel Exhibit US-1068 (HSBI))).
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process that involved multiple offers.
2571 We further note BCI and HSBI statements on the Panel
record, uncontested by the parties, that demonstrat e the particularly price-sensitive nature of these
campaigns, and the fact that both Boeing and Airbus had similar strategic incentives leading them to
engage in intense competition in terms of price in order to win the sale. 2572 Moreover, the
United States did not specifically identify other f actors, such as switching costs, that could have
demonstrated that Boeing had an advantage in these campaigns that would have led it to win the sale

2571With regard to the JAL campaign, JAL accepte d offers from both Boeing and Airbus.
(United States' first written submission to the Panel, US Campaign Annex (HSBI), paras. 120-121; and
European Communities' first written submission to th e Panel, Annex E – 737NG Campaign Annex (HSBI),
p a r a s . 3 7 - 4 4 ) [ [ [ H S B I ] ]

 [[HSBI]] [[HSBI]]].
(European Communities' first written submission to th e Panel, Annex E – 737NG Campaign Annex (HSBI),
p a r a s . 3 8 , 4 0 , a n d 4 2 ) [ [ [ H S B I ] ]
 * * * [ [ H S B I ] ]
 [[HSBI]]]. ( Ibid., paras. 38-42) With regard
to the SALE campaign, [

(United States' first written submission to the Panel, US Campaign Annex (HSBI), paras. 122-125;
European Communities' first written submission to th e Panel, Annex E – 737NG Campaign Annex (HSBI),
paras. 8-14) [ *** [[HSBI]]].
(European Communities' first written submission to th e Panel, Annex E – 737NG Campaign Annex (HSBI),
para. 9) [ *** [[HSBI]]]. (United States' first written submission to the
Panel, US Campaign Annex (HSBI), para. 124) [ [[HSBI]]
 *** [[HSBI]]].
(European Communities' first written submission to th e Panel, Annex E – 737NG Campaign Annex (HSBI),
para. 12)
2572With regard to the JAL campaign, the United States maintained that JAL sought to order
replacement aircraft for its aging 737s, MD-80s, and MD-90s. [
 [ [ H S B I ] ] * * * ] .
(United States' first written submission to the Panel, US Campaign Annex (HSBI), para. 121) Given the
implications of an Airbus win in this campaign, th e United States argued, Bo eing had every incentive to
compete vigorously to retain JAL's business. (Ibid.) [

 ]. (European Communities' second written submission to the Panel, HSBI
Annex, para. 125) [ *** [[HSBI]]
 ]. (European Communities' first written submission to the Panel, Annex E – 737NG
Campaign Annex (HSBI), para. 41) With regard to the SALE campaign, [
 *** [[HSBI]]]. (United States' first written
submission to the Panel, US Campaign Annex (HSBI), para. 124) [
 [ [ H S B I ] ]

 ]. ( Ibid., para. 125) [
 *** [[HSBI]] ]. (European Communities' first
written submission to the Panel, Annex E – 737NG Campaign Annex (HSBI), para. 9) [
 *** [[HSBI]]]. (European Communities' second written submission to the
Panel, HSBI Annex, para. 129)
BCI deleted, as indicated [***] WT/DS353/AB/R
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by reason other than price.
2573 We have explained that, due to th e nature of the tied tax subsidies,
their operation over time, their magnitude, and the competitive conditions in the LCA market, Boeing
had both the ability and incentive to use the tied tax subsidies to lower prices, and that there was a
substantial likelihood that this occurred in sales ca mpaigns that were particularly competitive and
sensitive in terms of price. We have also explai ned that, where it can be established that Boeing was
under particular pressure to reduce its prices in or der to win an LCA sale in a particular sales
campaign, and there were no other non-price factors that explain Boeing's success in obtaining the
sale, we can conclude that the subsidies contributed in a genuine and substantial way to the lowering
of Boeing's prices. The uncontroverted facts on th e Panel record substantiate that Boeing was under
particular pressure to reduce its prices in order to secure the sales in these two campaigns.
Accordingly, we conclude that, through their co ntribution to the lowering of Boeing's prices, the
FSC/ETI subsidies and the Washington State B&O ta x rate reduction were a genuine and substantial
cause of Airbus' loss of these sales to Boeing.
1272. In addition, we must assess whether the sales th at Airbus lost in those two campaigns can be
considered "significant".
2574 The term "significant" has been understood by the Appellate Body as
"something that can be characterized as important, notable or consequential".2575 The Appellate Body
has also expressed the view that an assessment of whether a lost sale is significant can have both
quantitative and qualitative dimensions.2576 We note that the SALE campaign involved 20 firm orders

2573With regard to the JAL campaign, we have noted supra, footnote 2572, the United States'
contention that JAL sought to order replacement aircraft for its aging Boeing fleet, and that [
 * * * ] . ( U n i t e d
States' first written submission to the Panel, US Campaign Annex (HSBI), para. 121) We do not believe this
reflects a factor capable of attenuating the causal contribution of the tied tax subsidies in the circumstances of
this campaign. The United States' recognition that both Boeing and Airbus were operating under similar
strategic incentives to capture the sale reinforces the importance of price competition in this campaign. In
addition, even accepting the argument that LCA manufacturers generally have a switching cost advantage in
respect of incumbent customers, the Un ited States argued that switching cost s do not factor into sales of newer
generation aircraft. (Panel Report, Appendix VII.F.2 – The Cabral Model, p. 772, para. 49 (referring to
United States' first written submission to the Panel, para. 855)) With regard to the SALE campaign, the
United States argued that [ ***
 ]. (United States' first written submission to the Panel, US Campaign Annex (HSBI), para. 122) We
also do not consider that this reflects a factor capable of attenuating the causal contribution of the tied tax
subsidies in the circumstances of this campaign. Th e Panel recognized that leasing companies, like SALE,
typically purchase aircraft from both manufacturers. (See Panel Report, para. 7.1688) Moreover, we note that
the United States asserted that leasi ng companies are not affected by switchi ng costs, presumably because it is
airlines, not leasing companies, that bear the operating cost s of leased aircraft. (United States' response to Panel
2574Appellate Body Report, EC and certain Member States – Large Civil Aircraft, para. 1215.
2575Appellate Body Report, US – Upland Cotton , para. 426 (referring to Panel Report, US – Upland
Cotton, para. 7.1326).
2576Appellate Body Report, EC and certain Member States – Large Civil Aircraft, para. 1218.
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Page 532 HSBI omitted, as indicated [[HSBI]]

and 20 purchase rights
2577, whereas the JAL campaign involved 30 firm orders and 10 options. 2578

 . 2579

2580] In addition, as we have noted above, th ese campaigns were highly price-competitive,
not only because of the direct consequence for LCA manufacturers in terms of revenue and
production effects associated with the sale of mu ltiple LCA, but also because of the strategic
importance of securing a sale from a particular customer.2581 For these reasons, we consider that these
lost sales campaigns are significant within the meaning of Article 6.3(c) of the SCM Agreement.
1273. In these circumstances, we consider that there is a sufficient basis for us to complete the
analysis and conclude that there is a genuine an d substantial causal relationship between the FSC/ETI
subsidies and the Washington State B&O tax rate re duction, through their effects on Boeing's prices,
and the significant lost sales experienced by Airbus in these two sales campaigns.

2577European Communities' first written submission to the Panel, Annex E – 737NG Campaign Annex
(HSBI), para. 8; United States' first written submissi on to the Panel, US Campaign Annex (HSBI), para. 122
(referring to SALE Press Release, SALE to order up to 40 Boeing Next-Generation 737 Aircraft (26 May 2005)
(Panel Exhibit US-1068 (HSBI))).
2578European Communities' first written submission to the Panel, Annex E – 737NG Campaign Annex
(HSBI), para. 37; United States' first written submission to the Panel, US Campaign Annex (HSBI), para. 120
(referring to JAL Press Release, Japan Airlines Decided on Boeing 737 Next Generation Series (4 February
2005) (Panel Exhibit US-1064 (HSBI))).
2579European Communities' first written submission to the Panel, Annex E – 737NG Campaign Annex
(HSBI), para. 62. [ ***

2580[

 ]. (European Communities' first written submission to the
Panel, Annex E – 737NG Campaign Annex (HSBI), para. 62)
2581In EC and certain Member States – Large Civil Aircraft, the Appellate Body took note of the panel's
view that, apart from losing direct revenue effects, lost sales are si gnificant because th ey can deprive a
manufacturer of the "ability to benefit from the importa nt learning effects and economies of scale in this
industry", and "the advantages {of} being the incumbent supplier with a given customer with respect to
subsequent purchases". (Appellate Body Report, EC and certain Member States – Large Civil Aircraft ,
para. 1219 (quoting Panel Report, EC and certain Member States – Large Civil Aircraft, para. 7.1845))
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5. Conclusion
1274. We have reversed the Panel's findings that the FSC/ETI subsidies and the B&O tax rate
reductions caused significant price suppression, significant lost sales, and displacement and
impedance in the 100-200 seat and 300-400 seat LCA markets, and therefore serious prejudice to the
interests of the European Communiti es, within the meaning of Articles 5(c) and 6.3(b) and (c) of the
SCM Agreement. In completing the analysis, we have found that, in two sales campaigns, the
FSC/ETI subsidies and the Washington State B&O ta x rate reduction caused, through their effects on
Boeing's prices for the 737NG, signifi cant lost sales to Airbus within the meaning of Article 6.3(c) of
the SCM Agreement. We therefore find that the FSC/ETI subsidies and the Washington State B&O
tax rate reduction caused serious prejudice in the 100-200 seat LCA market within the meaning of
Articles 5(c) and 6.3(c) of the SCM Agreement.
E. Collective Assessment of the Subsidies and Their Effects
1. Introduction
1275. The European Union challenges two decisions taken by the Panel to assess separately the
alleged effects of different groups of subsidies. With respect to each, the European Union asserts that,
in refusing to conduct an integrated assessment of th e effects of the relevant subsidies, the Panel erred
in its interpretation and application of Articles 5(c) and 6.3 of the SCM Agreement. The specific
errors alleged consist of: (i) the Panel's refusal to assess collectively the effects of the B&O tax rate
reductions and the effects of the aeronautics R&D subsidies 2582; and (ii) the Panel's failure to assess
collectively the effects of the tied tax subsidies (the FSC/ETI subsidies and the B&O tax rate
reductions) and the effects of eight other subsidy measures (the "remaining subsidies").
1276. With respect to the first alleged error, which relates only to the Panel's analysis of the 200-300
seat LCA market, the European Union requests us on ly to reverse the Panel's finding that it was not
"appropriate to aggregate the effects of the B&O ta x {rate reductions} on Boeing's pricing of the 787
with the effects of the aeronautics R&D subsidi es on Boeing's development of technologies applied to
the 787". 2583 With respect to the second alleged error, which relates to the 100-200 seat and the

2582Panel Report, para. 7.1824.
2583Panel Report, para. 7.1824.
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Page 534 HSBI omitted, as indicated [[HSBI]]

300-400 seat LCA markets
2584, the European Union requests us to reverse the reasoning 2585 that led
the Panel to assess the effects of the remaining subs idies in isolation from the tied tax subsidies, as
well as the Panel's ultimate conclusion that the re maining subsidies did not "give rise to serious
prejudice to the European Communities' interests." 2586 In addition, and as a consequence of this
second alleged error, the European Union requests us to find that the Panel should have assessed the
collective effects of these two groups of subsidies, and to complete the analysis and find that the tied
tax subsidies and the remaining subsidies collectiv ely cause adverse effects in the product markets at
issue.2587
1277. Before turning to these grounds of appeal, we c onsider it useful to identify the Panel's overall
approach to analyzing the large number of subsidy measures that were relevant to its analysis of
serious prejudice. Specifically, the Panel analyzed the collective effects of several subsidy measures
within each of the following three groups of subsidies.
1278. First, the Panel analyzed collectively th e technology effects of the aeronautics R&D
subsidies, which the Panel found to amount to at l east $2.6 billion and to consist of: (i) the payments
made to Boeing and the access to NASA facilities, equipment, and employees provided to Boeing by
NASA pursuant to procurement contracts and Spac e Act Agreements entered into under the eight
aeronautics R&D programmes at issue; and (ii) the payments made to Boeing and the access to

2584Although the European Union did not, in its appellant's submission, expressly indicate whether this
ground of appeal relates to all three LCA product markets, or only to those two LCA product markets in which
the Panel found that the tied tax subsidies caused adverse effects, we consider that this ground of appeal
ultimately relates only to the latter two LCA product markets and not to the 200-300 seat LCA market. Our
understanding is based on: (i) the fact that, as discussed infra paras. 1313 and 1327, the European Union has not
appealed the Panel's decision not to ex amine the effects of the aeronautics R&D subsidies on Boeing's prices;
and (ii) the European Union's clarification, at the oral hearing, that it does not seek completion of the analysis
with respect to the issue of the causal relationship betw een the B&O tax rate reductions and Boeing's prices and
the related issue of whether the effects of those subsidie s could be cumulated with the effects of the aeronautics
R&D subsidies within the 200-300 seat LCA market. It follows that, because there is no finding that the tied tax
subsidies that applied in the 200-300 seat LCA market (the B&O tax rate reductions) had a genuine and
substantial causal relationship with the adverse effects in that product market, and because the European Union
has not argued that the effects of the remaining subsidies should be cumulated with the effects of the aeronautics
R&D subsidies within the 200-300 seat LCA market, this ground of appeal does not pertain to the 200-300 seat
LCA market.
2585Panel Report, paras. 7.1827 and 7.1828.
2586Panel Report, para. 7.1828.
2587European Union's appellant's submission, para. 192.
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USDOD facilities provided to Boeing by the USDOD pur suant to assistance in struments entered into
under the 23 RDT&E programmes at issue.
2588
1279. Second, the Panel analyzed collectively the price effects of the tied tax subsidies, which the
Panel found to amount to approximately $2.2 billion a nd to consist of: (i) the tax exemptions and tax
exclusions provided to Boeing under FSC/ETI legislation 2589; (ii) the Washington State B&O tax rate
reduction2590; and (iii) the City of Everett B&O tax rate reduction.2591
1280. Third, to the extent that it analyzed the pri ce effects of the remaining subsidies, the Panel
appears to have conducted a single analysis of their collective effects. Tho se eight subsidies, which
the Panel found to amount to $55 0 million in total, consist of 2592: (i) the property and sales tax
abatements provided to Boeing pursuant to IRBs issu ed by the City of Wichita, Kansas; (ii) the
Washington State B&O tax credits for preproduction development, computer software and hardware,
and property taxes; (iii) the Washington State sales and use tax exemptions for computer hardware,
peripherals, and software; (iv) the Washingt on State workforce development programme and
Employment Resource Center; (v) the reimbursement of a portion of Boeing's relocation expenses by
the State of Illinois; (vi) the 15-year EDGE tax credits provided by the State of Illinois; (vii) the
abatement or refund of a portion of Boeing's property taxes provided by the State of Illinois; and
(viii) the payment to retire the lease of the previous tenant of Boeing's new headquarters building in
Chicago.
1281. In contrast, the Panel decided not to conduct a collective assessment of the effects of certain
groups of the subsidies at issue . In its analysis of the "price effect s" of subsidies within the 200-300
seat LCA market, the Panel did not collectively assess the effects of the relevant tied tax subsidies

2588See Panel Report, paras. 7.1110, 7.1210, 7.1431, and 7.1433. The Panel identified these as four
types of measures, namely: (i) payments made to Boeing pursuant to procurement contracts entered into under
the eight NASA aeronautics R&D programmes at issue; (ii) access to NASA facilities, equipment, and
employees provided to Boeing pursuant to procurement contracts and Space Act Agreements entered into under
the eight aeronautics R&D programmes at issue; (iii) payments made to Boeing pursuant to assistance
instruments entered into under th e 23 USDOD RDT&E programmes at issue; and (iv) access to USDOD
facilities provided to Boeing pursuant to assistance instruments entered into under the 23 RDT&E programmes
at issue. However, we recall that , for the reasons explained in sectio n VI.A, we view the aeronautics R&D
subsidies as joint venture-type transactions that are composite in nature.
2589Panel Report, para. 7.1429. As explained supra, footnote 1882, the European Communities did not
claim that the FSC/ETI subsidies had adverse effects in the 200-300 seat LCA mark et, and the Panel conducted
its analysis on the basis that these subsidies had no effects in that product market.
2590Panel Report, para. 7.302.
2591Panel Report, para. 7.354. As explained supra, footnote 1879, the City of Everett B&O tax rate
reduction applies only in respect of two of the three relevant product markets, and not in respect of the 100-200
seat LCA market.
2592Panel Report, paras. 7.1431-7.1433 and 7.1825-7.1827.
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(the two B&O tax rate reductions
2593) on Boeing's pricing of the 787 together with the effects of the
aeronautics R&D subsidies on Boeing's develo pment of technologies applied to the 787. 2594 I n i t s
analyses of the "price effects" of subsidies within the 100-200 seat and 300-400 seat LCA markets,
the Panel did not collectively assess the effects of the remaining subsidies together with the effects of
the tied tax subsidies. The European Union appeals both of these decisions by the Panel.
2. Assessment of the European Union's Claims of Error on Appeal
(a) Introduction
1282. Over the course of these appellate proceedings, th e submissions made by the participants and
third participants with respect to the collective ass essment of the effects of multiple subsidy measures
have focused heavily on the approaches employed in the US – Upland Cotton and EC and certain
member States – Large Civil Aircraft disputes. Moreover, following circulation of the Appellate
Body report in the latter dispute, the core disagre ement between the particip ants shifted from their
different understandings of what was done by the panel in US – Upland Cotton to their different
understandings of the Appellate Body's findings in EC and certain member States – Large Civil
Aircraft. For these reasons, we consider it useful to outline key elements of the approaches taken by
the panels in these two disputes. As explained belo w, and accepted by the participants, two distinct
means of undertaking a collective assessment of th e effects of multiple subsidies have been used,
namely: (i) an ex ante decision taken by a panel to undertake a single analysis of the effects of
multiple subsidies whose structure, design, and operation are similar and thereby to assess in an
integrated causation analysis the coll ective effects of such subsidy measures 2595; and (ii) an
examination undertaken by a panel after it has found that at least one subsidy has caused adverse
effects as to whether the effects of other subsidies complement and supplement those adverse effects.
The former type of approach was employed by the panel in US – Upland Cotton , and the latter
approach was employed by the panel in EC and certain member States – Large Civil Aircraft. For the
sake of convenience, we will refer to the first ty pe of approach as a decision to "aggregate" the
subsidies, or "aggregation", and to the second type of approach as a decision to "cumulate" the effects
of the subsidies, or "cumulation".

2593As explained supra, footnote 1882, the European Communities did not claim that the FSC/ETI
subsidies had adverse effects in the 200-300 seat LCA ma rket, and the Panel conducted its analysis on the basis
that these subsidies had no effects in that product market.
2594Panel Report, para. 7.1826.
2595Such a combined analysis may al so encompass a summing up of the amounts of different subsidies
or groups of subsidies (or of the amounts of the benefits of such subsidies) for purposes of the assessment of the
effects of all the subsidies whose effects are assessed in this manner.
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1283. Before turning to the European Union's two gr ounds of appeal, we outline, in subsection (b),
the different approaches that have been and that may be taken to a collective assessment of the effects
of multiple subsidies. In subsection (c), we identify the approach taken by the Panel in this dispute.
In subsection (d), we consider whether the Panel erred in declining to assess collectively the effects of
the aeronautics R&D subsidies and the effects of the B&O tax rate reductions. Finally, in
subsection (e), we evaluate whether the Panel erre d in declining to assess collectively the effects of
the tied tax subsidies and the effects of the remainin g subsidies and, if so, whether we can complete
the analysis and ourselves undertake a collective assessment of the effects of these subsidies.
(b) Different approaches to collective assessment
1284. Articles 5(c) and 6.3 of the SCM Agreement do not require that a serious prejudice analysis
"clinically isolate each individual subsidy and its effects".
2596 Rather, the way in which a panel
structures its evaluation of a claim that multiple subsidies have caused serious prejudice will
necessarily vary from case to case. Relevant circum stances that will bear upon the appropriateness of
a panel's approach include the design, structure, a nd operation of the subsidies at issue, the alleged
market phenomena, and the extent to which the su bsidies are provided in relation to a particular
product or products.2597 A panel must also take account of the manner in which the claimant presents
its case, and the extent to which it claims that mu ltiple subsidies have similar effects on the same
product, or that the effects of multiple subsidies manifest themselves collec tively in the relevant
market. A panel enjoys a degree of methodological la titude in selecting its approach to analyzing the
collective effects of multiple subsidies for purposes of assessing causation. However, a panel is never
absolved from having to establish a "genuine a nd substantial relationship of cause and effect" 2598
between the impugned subsidies a nd the alleged market phenomena under Article 6.3, or from
assessing whether such causal link is diluted by the effects of other factors. 2599 Moreover, a panel
must take care not to segment unduly its analysis su ch that, when confronted with multiple subsidy
measures, it considers the effects of each on an individual basis only and, as a result of such an
atomized approach, finds that no subsidy is a substa ntial cause of the relevant adverse effects. At
least two ways of conducting a collective causation analysis may be pursued by panels.

2596Panel Report, US – Upland Cotton , para. 7.1192. See also Panel Report, Indonesia – Autos ,
2597Appellate Body Report, EC and certain member States – Large Civil Aircraft , para. 1376 (referring
to Panel Report, US – Upland Cotton , para. 7.1194; and Panel Report, Korea – Commercial Vessels ,
para. 7.560).
2598Appellate Body Report, US – Upland Cotton (Article 21.5 – Brazil) , para. 368 (quoting Appellate
Body Report, US – Upland Cotton, para. 438).
2599See Appellate Body Report, US – Upland Cotton (Article 21.5 – Brazil), para. 375.
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1285. First, a panel may group together subsidy me asures that are sufficiently similar in their
design, structure, and operation in order to ascertain their aggregated effects in an integrated causation
analysis and determine whether there is a genuine and substantial causal re lationship between these
multiple subsidies, taken together, and the relevant market phenomena identified in Article 6.3 of the
SCM Agreement (such as significant price suppression, lost sales, displacement or impedance). In
such circumstances, the panel is not required to find that each subsidy meas ure is, individually, a
genuine and substantial cause of the relevant phenomenon. Nor is it required to assess the relative
contribution of each subsidy within the group to the resulting effects. When such an analysis is
appropriate in the light of the design, structure, and operation of multiple subsidies, a panel may also
add together the amounts of the subsidies as part of its analysis of the collective effects of that group
of subsidies. Whether such an analysis is appr opriate will depend upon the particular features of the
subsidies at issue and the case pr esented by the complainant. Th e causal mechanism through which a
subsidy produces effects is one criterion that will be relevant to the issue of whether aggregation is
appropriate in any given instance.
1286. The approach of the panel in US – Upland Cotton illustrates this first method of collectively
assessing the effects of multiple subsidies (aggrega tion). That panel noted that the question of
whether the effects of the various subsidies should be considered on an aggregated basis was linked to
the issue of possible interrelationships among them
2600, and explained that, in analyzing Brazil's claim
of significant price suppression, it would conduct its analysis as follows:
To the extent a sufficient nexus with these exists among the subsidies
at issue so that their effects ma nifest themselves collectively, we
believe that we may legitimately treat them as a "subsidy" and group
them and their effects together.
2601
In applying this test to the US subsidies challenged by Brazil 2602, the panel divided the subsidies at
issue into two general groups: "those that are di rectly price-contingent, and those that are not". 2603

2600Panel Report, US – Upland Cotton, footnote 1308 to para. 7.1192.
2601Panel Report, US – Upland Cotton , para. 7.1192. The panel also made clear that it did not accept
the broad proposition that "the effects of all challenged subsidies in existen ce more or less contemporaneously
and to any connection whatsoever with a subsidized product must be aggregated in a serious prejudice analysis."
(Ibid., footnote 1308 thereto (original emphasis))
2602See Panel Report, US – Upland Cotton, paras. 7.204-7.244.
2603Panel Report, US – Upland Cotton , para. 7.1289. The panel considered the distinction between
price-contingent and non-price-contingent subsidies to be "critical for the purposes of {its} price suppression
analysis in terms of the nexus which the subsidies {had} to any price suppression and to the subsidized product
at issue." (Ibid.)
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The panel identified certain characteristics shared by the price-contingent subsidies
2604 and found that
they had "a nexus with the subsidized product and the single effects-related variable—world price", so
as to warrant consideration of their effects in the ag gregate, given that such effects are "manifest in
the movements in upland cotton prices in the same world market during the reference period." 2605 In
contrast, the panel identified certain characterist ics of the non-price-contingent subsidies that
suggested a much more attenuated nexus between those subsidies and the world price for cotton 2606
and, therefore, declined to aggregate the non-pri ce-contingent subsidies with the price-contingent
subsidies in its price suppression analysis.2607
1287. Second, a panel may begin by analyzing the effects of a single subsidy, or an aggregated
group of subsidies, in order to determine whether it constitutes a genuine a nd substantial cause of
adverse effects. Having reached that conclusion, a panel may then assess whether other subsidies
—either individually or in aggregated groups—have a genuine causal connection to the same effects,
and complement and supplement the effects of the first subsidy (or group of subsidies) that was found,
alone, to be a genuine and substantial cause of the alleged market phenomena. The other subsidies
have to be a "genuine" cause, but they need not, in themselves, amount to a "substantial" cause in
order for their effects to be combined with those of the first subsidy or group of subsidies that, alone,
has been found to be a genuine and substantial cause of the adverse effects.
1288. This second way of collectively assessing the eff ects of multiple subsidies (cumulation) was
adopted by the panel in EC and certain member States – Large Civil Aircraft , a dispute that involved
challenges to a large number of subsidy measures. Tho se that were relevant to the panel's analysis of
adverse effects fell into four main categories: (i) "launch aid" or "member State financing"

2604The panel explained that the price-contingent subsidy programmes were all similarly linked to the
behaviour of world market prices, were countercyclical in nature, and operated similarly to "stimulate
production and exports and result in lower world market prices than would prevail in their absence." (Panel
Report, US – Upland Cotton, paras. 7.1291 and 7.1299)
2606The panel explained that the non-price-contingent subsidies did not "expressly depend upon current
production of upland cotton and {were} not directly tied to market prices". This suggested that such subsidies
were more directed at income support than at price support and, therefore, that their pr ice effects were "not as
easily discernible as those of certain ot her subsidy programmes". (Panel Report, US – Upland Cotton ,
para. 7.1305)
2607Panel Report, US – Upland Cotton , para. 7.1307. In its subsequent causation analysis, the panel
found that the price-contingent subsidies, as a group, had caused price suppression. Having found that it was
not appropriate to aggregate the non- price-contingent subsidies and their effects with those of the price-
contingent subsidies, the panel found that no causal link had been established between the non-price-contingent
subsidies and the significant price suppression. ( Ibid., para. 7.1350) Neither the panel's approach to the
aggregation of the effects of the two groups of subsidies, nor its finding that causation had not been established
in respect of the non-price-contingent subsidies, was appealed. The Appellate Body ultimately upheld the
panel's causation finding with respect to the price-contingent subsidies, which had been appealed on other
grounds and, in so doing so, expressly stated that it did not "exclude the possibility that challenged subsidies that
are not 'price-contingent' … could have some effect on production and exports and contribute to price
suppression." (Appellate Body Report, US – Upland Cotton, footnote 589 to para. 450)
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("LA/MSF") for the development of various Airbus LCA models; (ii) research and technological
development ("R&TD") funding granted to Air bus companies by the European Communities and
member State governments at central and regional levels; (iii) infrastructure and infrastructure-related
grants by the member State governments; and (iv) equity infusions and corporate restructuring
measures undertaken by the French and German Gove rnments. In its adverse effects analysis, the
panel first assessed the effects of one of the categories of subsidies—namely, LA/MSF subsidies—
that the United States had contended were the primary subsidies affecting Airbus' commercial
behaviour. The panel determined that through th eir "product effect"—namely, enabling Airbus to
launch each of its LCA models at the time that it did
2608—the LA/MSF caused displacement of
imports within the meaning of Article 6.3(a), di splacement of exports within the meaning of
Article 6.3(b), and significant lost sales within the meaning of Article 6.3(c) of the SCM Agreement.
The panel then turned to assess the effects of non-LA/MSF subsidies, and considered whether the
"product" effect of LA/MSF was "complemented and supplemented" by the remaining three types of
subsidies.2609 The panel also referred to the test for aggr egation of the effects of subsidies set out by
the panel in US – Upland Cotton in expressing its view that it was "appropriate to undertake {its}
analysis of the effects of the subsidies on an aggregated basis".2610
1289. In reviewing the panel's approach on app eal, the Appellate Body first observed that,
notwithstanding that the panel had stated that, like the US – Upland Cotton panel, it would undertake
an aggregated analysis of the effects of all of the relevant subsidies, that was not in fact what the panel
had done.2611 The Appellate Body nevertheless considered that the approach that the panel had taken
was in principle permissible provided that, in its analysis, the panel had established a genuine causal
link between each group of non-LA/MSF subsidies and th e relevant adverse effects. Accordingly, the
Appellate Body reviewed the panel's individual assessment of each group of non-LA/MSF subsidies
in order to determine whether the panel's analysis revealed that it had determined that each such group
had a genuine causal connection with the relevant market effects and had thereby identified a

2608Panel Report, EC and certain member States – Large Civil Aircraft, para. 7.1956.
2609Panel Report, EC and certain member States – Large Civil Aircraft , para. 7.1956. For each group
of subsidies, the panel stated that those subsidies supported the development and production of Airbus LCA or
enabled Airbus to develop features and aspects of its LCA on a schedule that it would otherwise not have been
able to accomplish. (Ibid., paras. 7.1957-7.1959)
2610Panel Report, EC and certain member States – Large Civil Aircraft, para. 7.1961.
2611Appellate Body Report, EC and certain member States – Large Civil Aircraft , para. 1372. Rather,
the Appellate Body explained, the panel had separately analyzed the product effects of the LA/MSF subsidies,
and then sought to determine whether each group of non-LA/MSF subsidies had a sufficient nexus with the
product at issue, in particular, similar effects on Airb us' ability to launch and bring to the market particular
models of LCA, by means of "a separate—and more abbreviated—assessment of the collective effect of
measures comprised under each group of non-LA/MSF subsidies". (Ibid., para. 1373) Having done so, the panel
had reached the conclusion that the "'product' effect of LA/MSF {was} ... complemented and supplemented by
the other specific subsidies {it had} found to exist in {that} dispute". ( Ibid. (quoting Panel Report, EC and
certain member States – Large Civil Aircraft, para. 7.1956))
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sufficient basis for its finding that the effects of each such group "complemented and supplemented"
the product effects of the LA/MSF "in that they similarly contributed to Airbus' ability to bring to the
market its models of LCA, thereby causing displacement ... and significant lost sales".
2612 T h e
Appellate Body found the panel's a pproach to have been satisfactory with respect to two of the three
groups of non-LA/MSF subsidies2613, but that the panel had erred in cumulating the effects of the third
group of non-LA/MSF subsidies (the R&TD subsidies) with the e ffects of the LA/MSF subsidies,
because it had not established a genuine causal link between those subsidies and Airbus' ability to
launch and bring to the market its models of LCA.2614
1290. Thus, at least two approaches to a collective a ssessment of the effects of multiple subsidy
measures may be used, namely, aggregation and cumula tion. Whether either, or both, or neither of
these approaches is appropriate in a particular case will be a function of the specific subsidy measures
at issue and their effects on prices and sales in the relevant market, as well as upon the manner in
which a complainant presents its claim and the panel decides to structure its causation analysis. In
deciding how to undertake its analysis of serious prejudice, however, a panel is subject to the
constraint that it must employ an approach that will enable it to take due account of all of the
subsidies that provide a relevant and identifiabl e competitive advantage to the recipient and its
products in the market and that relate to alleged adverse effects phenomena. Only by doing so can a
panel ensure a full appreciation of all of the ch allenged subsidies that may be contributing, or
conducing, to the serious prejudice. At the same time, a panel must be careful not to combine
multiple measures in such a way as to absolve a co mplainant of its burden of proving that each
challenged measure is a genuine cause of, or genuinely contributes to producing, the market
phenomena identified in Article 6.3 and that the ch allenged subsidies, taken together, are a genuine
and substantial cause of such adverse effects.

2612Appellate Body Report, EC and certain member States – Large Civil Aircraft, para. 1380.
2613Appellate Body Report, EC and certain member States – Large Civil Aircraft , paras. 1391 (equity
infusions) and 1400 (infrastructure measures).
2614Appellate Body Report, EC and certain member States – Large Civil Aircraft , para. 1408. The
Appellate Body reasoned that such subsidies "will not have any impact on Airbus' (and consequently on
Boeing's) sales unless they provide Airbus LCA with a competitive advantage in relation to Boeing LCA", and
that such a competitive advantage "must be reflected either in technologies incorporated in models of LCA
actually launched by Airbus, or in technologies that make the production process of those LCA more efficient."
Because the panel had made no findings that the deve lopment of specific technolog y or production processes
funded by R&TD subsidies contributed to Airbus' ability to launch and bring to market specific LCA models,
the Appellate Body found that the panel "did not have a sufficient basis to conclude that those subsidies
'complemented and supplemented' the 'product effect' of LA/MSF" and thus had not established a genuine
causal link.
 (Ibid., para. 1407)
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1291. A decision to aggregate subsidies that share a similar design, structure, and operation is both a
useful tool that a panel can use to avoid having to repeat the same analysis for each and every measure
and a substantive recognition that the measures in qu estion are of such kind that they are likely to
conduce to the same result. Indeed, an aggregate analysis of such a group of subsidies may establish a
genuine and substantial causal link in circumstan ces where no such link could have been established
for each subsidy measure, analyzed in isolation. A decision by a panel to aggregate multiple subsidy
measures represents an exercise of judgement by th e panel to the effect that, given the degree of
similarity among the subsidy measures, there is a reasonable likelihood that the examination of the
causal relationship between each such subsidy and the a lleged effects will be largely similar, and that
it can be anticipated that the effects of the s ubsidy measures and their causal relationship to the
serious prejudice alleged will be largely the same.
2615 In adopting such an approach, a panel must
explain why it considers such similarity to exist. Such explanation should be grounded in the
characteristics of the particular subsidies at issue, particularly the nature and design of those subsidy
measures, the implications of that nature and design for the operation of the subsidies, their
relationship to the subsidized product, and the structure of the market in which that product competes.
1292. In contrast, a decision as to whether the effects of different subsidies can be cumulated can be
taken only after there has been a determination, for at l east one subsidy or group of aggregated
subsidies, that it has a genuine and substantial li nk to the alleged market phenomena. Once such a
causal link has been established, then a panel w ill have to address the question of whether other
subsidies have a genuine connection to such phenomena. Considerations that may bear upon a panel's
assessment of whether a genuine causal connection ex ists include the design, structure, magnitude,
and operation of the subsidy, as well as the nexus betw een the subsidy and the subsidized product. In
our view, a genuine causal connection may be esta blished in different ways. One way is to
demonstrate that the subsidy or subsidies cause effects that follow the same causal pathway as a
subsidy that has already been found to be a genui ne and substantial cause of the alleged market
phenomena under Article 6.3 of the SCM Agreement. We do not, however, consider that this is the
only way in which the requisite genuine causal c onnection can be established. A genuine causal
connection may also be found when a complainant succeeds in demonstrating that, even though other
subsidies do not operate along the same causal pathway, those subsidies nevertheless, either singly or
in combination, meaningfully contribute to, a nd thereby complement and supplement, the adverse
effects, within the meaning of Article 6.3, caused by the first subsidy. In other words, the effects of

2615We understand this to have been the approach adopted by the panel in US – Upland Cotton, which it
explained as, "{t}o the extent a sufficient nexus with these exists among the subsidies at issue so that their
effects manifest themselves collectively, we believe that we may legitimately treat them as a 'subsidy' and group
them and their effects together." (Panel Report, US – Upland Cotton, para. 7.1192)
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such other subsidy or group of subsidies must be shown to be non-trivial in order to be found to
supplement or complement effects for which a genui ne and substantial conne ction has already been
established.
1293. We further observe that the characteristics of the market within which the subsidized products
compete may affect the analysis of whether the effects of different subsidies complement and
supplement each other, and that pa nels should give consideration to whether the specific market at
issue enhances the scope for complementarity among subsidies—even those subsidies that differ in
nature. For example, when a subsidy recipient ex ercises market power, it may be more likely to be
able to take advantage of potential interaction betw een different subsidies, and to exploit these effects
to the disadvantage of its competitors, than would be the case in a perfectly competitive market.
(c) The approach taken by the Panel to a collective assessment of the
effects of the subsidies at issue
1294. We recall that, in advancing its claim that th e United States' subsidies at issue had caused
serious prejudice to its commercial interest s, the European Communities alleged that all of the
subsidies at issue had "price effect s" in all three relevant product markets, and that certain of these
measures—the aeronautics R&D subsidies—also ha d "technology effects" within the 200-300 seat
LCA market. In considering how to conduct its an alysis of the effects of the various subsidy
measures, the Panel quoted the test set out by the panel in US – Upland Cotton
2616 and explained that
it would use such an approach, which it explained as follows:
{I}n order to conduct an aggregat ed analysis of the effects of
subsidies in the context of this dispute, it should be possible to
discern from their structure, design and operation that they affect
Boeing's behaviour in a similar way.2617
1295. As explained above, this approach led the Panel to undertake an aggregated analysis within
each of the following three groups of subsidies: (i) the tied tax subsidies 2618; (ii) the aeronautics
R&D subsidies; and (iii) the remaining subsidies. It also led the Panel not to undertake an aggregated
analysis of the tied tax subsidies and the aeronautics R&D subsidies, or of the tied tax subsidies and
the remaining subsidies.

2617Panel Report, para. 7.1805.
2618Panel Report, para. 7.1805. Pursuant to this approach, the Panel conducted an integrated analysis of
the effects of the FSC/ETI subsidies and the B&O tax rate reductions within the 100-200 seat and 300-400 seat
LCA markets, and an integrated analysis of the price e ffects of the B&O tax rate reductions in the 200-300 seat
market.
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1296. The Panel appears to have decided that it was a ppropriate to conduct an aggregated analysis
within each of these groups of subsidies by virtue of their design, structure, and operation. With
respect to the tied tax subsidies, for example, th e Panel observed that both the European Communities
and the United States accepted that these subsidie s were sufficiently similar as to warrant an
aggregated analysis of their effects.
2619 The Panel itself explained that the "FSC/ETI subsidies reduce
the revenues from certain sales of aircraft on which Boeing is taxed" and that "the B&O tax {rate
reductions} directly reduce the rate at which Boei ng's gross revenues from the manufacture of aircraft
are taxed." 2620 Thus, the Panel explained, all of these subsidies increase "the profitability of LCA
sales in a way that enables Boeing to price its LCA at a level that would not otherwise be
commercially justified."2621 The Panel concluded that, "by lowe ring the taxes incu rred in connection
with sales of LCA", the FSC/ETI subsidies and the B&O tax rate reductions have a much more "direct
and immediate relationship to aircraft prices and sales " than other subsidies at issue in this dispute. 2622
The Panel also undertook an aggregated analysis of the effects of all of the aeronautics R&D subsidies
based on their nature and the fact that they were designed to have effects on Boeing's product
offering.2623
1297. The Panel also appears to have undertaken an aggr egated analysis of the remaining subsidies.
Although the Panel did not expressly indicate that it was proceeding in this manner 2624, the Panel did,
in its reasoning, identify several characteristics that these measures had in common. For instance, the
Panel noted that all of these measures fell with in the category of subsidies identified by the
European Communities as operating to increase Boeing's non-operating cash flow 2625, and that none
of these subsidies was directly related to Boeing's production or sale of LCA. 2626 The Panel reasoned
that, even if the conditions of competition are such that subsidies of this nature allow Boeing to
market its LCA at lower prices than would otherw ise be the case, the remaining subsidies are not

2619Panel Report, para. 7.1805 (referring to United States' first written submission to the Panel,
paras. 767 and 768). Although the parties did not agree on the precise nature of the FSC/ETI subsidies and
B&O tax rate reductions—the European Communities alleged that they operate to reduce Boeing's marginal unit
costs, whereas the United States cont ested this characterization of the nature of these measures—both accepted
that the measures share sufficient similarities in structure and operation such that it was appropriate for the Panel
to conduct an aggregated analysis of their effects.
2620Panel Report, para. 7.1807.
2621Panel Report, para. 7.1807.
2622Panel Report, para. 7.1807.
2623In these appellate proceedings, bo th participants accepted, in respon se to questioning at the oral
hearing, that it was appropriate for the Panel to have condu cted an aggregated analysis of the tied tax subsidies,
and an aggregated analysis of the aeronautics R&D subsidies.
2624Similarly, the Panel did not explicitly identify th e reasons why it consider ed that an aggregate
assessment of the effects of the aeronautics R&D subsidies was warranted.
2625Panel Report, para. 7.1825.
2626Panel Report, para. 7.1827.
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"explicitly targeted to lowering Boeing's co sts of production of specific LCA models".
2627 The Panel
also noted that both parties appeared to accept "t he proposition that where a subsidy is not tied to
production of a particular product, the subsidy may still affect the behaviour of the recipient of the
subsidy in a manner that causes serious prejudice, depending upon the context in which it is used."2628
1298. In contrast, the Panel gave the following reas ons for deciding not to conduct a collective
assessment of the price effects of the B&O tax rate reductions and the technology effects of the
aeronautics R&D subsidies within the 200-300 seat LCA market:
{W}e have previously found that the aeronautics R&D subsidies,
through their effects on Boeing's development of technologies for
the 787, gave rise to serious prejudice in that product market.
However, owing to the very different way in which the aeronautics
R&D subsidies operate, we do not cons ider that it is appropriate to
aggregate the effects of the B&O tax subsidies on Boeing's pricing of
the 787 with the effects of th e aeronautics R&D subsidies on
Boeing's development of technologies applied to the 787, as it is
clear that the two groups of subsidies operate through entirely
distinct causal mechanisms.
2629 (emphasis added; footnote omitted)
1299. The Panel did not address explicitly the question of whether it would have been appropriate to
undertake a collective assessment of the effects of the remaining subsid ies together with the effects of
the tied tax subsidies. In any event, the Panel did not do so.
1300. In accordance with the above approach, the Pane l examined the effects of the B&O tax rate
reductions, alone, within the 200-300 seat LCA market. The Panel found that:
… there is insufficient evidence befo re us that would enable us to
conclude that these subsidies are of a magnitude that would enable
them, on their own, to have such an effect on Boeing's prices of
the 787 as would lead to a finding that their effects in the 200-300
seat wide-body market were significant price suppression, significant

2627Panel Report, para. 7.1827 (quoting European Communities' first written submission to the Panel,
para. 1303).
2628Panel Report, para. 7.1828. As explained further below, although the Panel recognized that the
aeronautics R&D subsidies also shared such characteristics, the Panel did not cumulate the price effects of those
subsidies with those of the remaining subsidies.
2629Panel Report, para. 7.1824. Furthermore, in the section of its Report dealing with the "{e}ffects on
Boeing's pricing of subsidies alleged to increase Boeing's non-operating cash flow" ( ibid., p. 707, subheading
VII.F.2(c)(ii)), the Panel took the vi ew that it would not be appropriate to analyze the price effects of the
aeronautics R&D subsidies, and explained:
Having analyzed the effects of the ae ronautics R&D subsidies on the basis
of their contribution to Boeing's development of technologies for the 787,
we consider that it would be over-counting to additionally analyze their
effects based on a different understanding of their operation, namely, as
freeing up additional cash for Boeing to use to lower the prices of its LCA.
(Ibid., para. 7.1826)
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lost sales or displacement or im pedance of European Communities
imports into the United States or exports to third countries.
2630
1301. The Panel also examined the effects of the remaining subsidies alone, as follows:
As we have explained, the Panel is assessing the effects on Boeing's
LCA pricing of approximately $550 million in subsidies, the receipt
of which is not directly tied to the production or sale of particular
LCA. We are not persuaded that subs idies of this nature and of this
amount have affected Boeing's prices in a manner that could be said
to give rise to serious prejudice to the European Communities'
interests.
2631
(d) Whether the Panel erred in declini ng to assess collectively the effects
of the aeronautics R&D subsidies and the effects of the B&O tax rate
reductions
1302. We recall that, in examining the price effect s of the subsidies within the 200-300 seat LCA
market, the Panel declined to cons ider the effects of the R&D subsid ies together with the effects of
the B&O tax rate reductions on the grounds that "the two groups of subsidies operate through entirely
distinct causal mechanisms". 2632 We set out below the arguments of the parties as to whether or not
this finding by the Panel amounted to legal error, before turning to assess the issue ourselves.
(i) Arguments of the parties
1303. The European Union contends that the Panel erre d in so finding and challenges, in particular,
the "distinct causal mechanism" test relied upon by th e Panel in deciding that it was not appropriate to
undertake a collective assessment of the effects of these two groups of subsidies within the 200-300
seat LCA market. The arguments made by the Eur opean Union in support of this claim of error
shifted somewhat following circulation of the Appellate Body report in EC and certain member States
– Large Civil Aircraft. In its appellant's submission in this appeal, the European Union sought to
demonstrate, through its interpretation of the text of Articles 5(c) and 6.3 of the SCM Agreement, read
in the light of their context and the object and purpo se of that Agreement, that the Panel's test of
whether groups of subsidies operate through the same or "distinct causal mechanisms" has no basis in
that Agreement, is overly restrictive, and woul d enable Members to escape subsidy disciplines by
providing a series of small subsidies that each a ffects the recipient slightly differently. The
European Union argued that a panel may not clinically isolate or compartmentalize its analysis so as
to mask the contribution of any subsidy or group of subsidies to adverse effects. Rather, a panel must

2630Panel Report, para. 7.1824.
2631Panel Report, para. 7.1828.
2632Panel Report, para. 7.1824.
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always assess—quantitatively or qualitatively—whethe r the collective competitive impact of the
different subsidies causes one or more of the forms of adverse effects listed in Article 6.3.
1304. In its appellee's submission, submitted following circulation of the Appellate Body report in
EC and certain member States – Large Civil Aircraft , the European Union contended that, having
found that the aeronautics R&D subsidies allowed Boeing to suppress Airbus' pricing in the 200-300
seat LCA market, and having also found that the B&O tax rate reductions had the capacity to suppress
Airbus' pricing (in the 100-200 seat and 300-400 seat LC A markets), the Panel failed to take the next
step and combine the effects of the B&O tax ra te reductions with those of the aeronautics R&D
subsidies within the 200-300 seat LCA market. In response to questioning at the oral hearing, the
European Union further clarified its position with resp ect to this claim of error, and, in so doing,
stressed the similarity between this dispute and the approach endorsed by the Appellate Body in
EC and certain member States – Large Civil Aircraft . The European Union explained that, in this
dispute, the Panel found that the aeronautics R&D su bsidies were a genuine and substantial cause of
significant price suppression in the 200-300 seat LCA ma rket. The Panel in effect also found that the
tied tax subsidies that apply in the 200-300 seat LCA market—the B&O tax rate reductions—have a
genuine, albeit non-substantial, causal relati onship with the same kind of adverse effect.
2633 In such
circumstances, the European Union submitted, the Panel was required to consider the possibility that
the effects of the B&O tax rate reductions comple mented and supplemented those of the aeronautics
R&D subsidies.
1305. Also at the oral hearing, the European Union rejected assertions by the United States that in
EC and certain member States – Large Civil Aircraft the Appellate Body found that the effects of
different groups of subsidies can be cumulated only when they affect the behaviour of the subsidy
recipient in the same way. While it is true that the facts in EC and certain member States – Large
Civil Aircraft were such that each group of subsidies was alleged to have "product" effects on Airbus,
nothing in the Appellate Body's reasoning suggests that the same approach should not have been
followed if some of the subsidies had been alleged to have "price" effects on Airbus. In this dispute,
the Panel considered the possibility of cumulation only at the first stage of its analysis (the effects of
the subsidies on Boeing), and failed to consider whether cumulation would be appropriate at the
second stage of its analysis (the effects of the s ubsidies on Airbus), even though both the aeronautics
R&D subsidies and the B&O ta x rate reductions had been alleged to have effects on Airbus' pricing
and sales. Instead, the Panel considered that it was precluded from cumulating these effects solely

2633Such a finding is, according to the European Union, implicit in the Panel's findings, with respect to
the 100-200 seat and 300-400 seat LCA markets, that the tied tax subsidies (the B&O tax rate reductions
together with the FSC/ETI subsidies) were a genuine and substantial cause of significant price suppression.
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because they were produced pursuant to different causal mechanisms. The European Union claims
that such reasoning constitutes legal error and mu st be reversed. The European Union further
clarified at the oral hearing that it is not seeking to have us complete the analysis and determine,
ourselves, whether the effects of the B&O tax ra te reductions complement ed and supplemented the
adverse effects that the Panel found were cause d by the aeronautics R&D subsidies within the
200-300 seat LCA market.
1306. The United States submits that the Panel's decisi on to consider the effects of the aeronautics
R&D subsidies separately from those of the B&O tax rate reductions was permissible under Articles 5
and 6.3 of the SCM Agreement, based on the European Communities' own arguments about the
differing nature of these two groups of subsidies and their differe nt effects on Boeing's commercial
behaviour, and consistent with the Appellate Body's affirmation that panels enjoy "a certain degree of
discretion in selecting an appropriate methodology" for determining adverse effects, and that the
"appropriateness of a particular method may have to be determined on a case-specific basis".
2634
1307. The United States adds that the Panel's appro ach accords with the views of the Appellate
Body in EC and certain member States – Large Civil Aircraft. According to the United States, the
Appellate Body's analysis in that dispute show s that, even when using a cumulation methodology,
panels should focus on discerning whether the vari ous subsidies operate through the same causal
mechanism to cause adverse effects. This ensures that subsidies with little or no causal relationship
are not found to cause adverse effects simply because they are grouped together with subsidies that do
have a genuine and substantial causal connection with the alleged effects. In response to questioning
at the oral hearing, the United States emphasized that, in EC and certain member States – Large Civil
Aircraft, the Appellate Body found that the panel was entitle d to cumulate the effects of subsidies that
had a genuine causal link with the product effect s of the LA/MSF subsidies, but had erred in
cumulating the effects of the R&TD subsidies with the effects of the LA/MSF subsidies, because the
R&TD subsidies had no genuine causal link to Air bus' ability to launch the relevant models as and
when it did. Similarly, in the case at hand, the Panel aggregated all subs idies alleged to operate
through the causal mechanism of enhancing Bo eing's ability to launch the 787, namely, the
aeronautics R&D subsidies. In contrast, the B&O ta x rate reductions did not, and were not alleged to,
affect Boeing's launch of the 787. Rather, the B&O tax rate reductions were alleged to affect Boeing's
prices. Since the Panel did not find that the aeronautics R&D subsidies had the effect of causing
Boeing to reduce the sales price of the 787, it foll ows, according to the United States, that the Panel

2634United States' appellee's submission, para. 194 (quoting Appellate Body Report, EC and certain
member States – Large Civil Aircraft , para. 1376, in turn referring to Appellate Body Report, US – Upland
Cotton, para. 436).
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was not required to include the effects of the B&O tax rate reductions in its analysis of the effects of
the aeronautics R&D subsidies.
1308. The United States adds that the European Un ion's "extremely broad interpretation of
Articles 5 and 6.3" of the SCM Agreement finds no support in these provisions and amounts to an
argument "that these provisions require a cumulative assessment in all cases ".
2635 The United States
submits that the Appellate Body should reject th e European Union's "one-size-fits-all analytical
approach in which aggregation or cumulation is required in all cases" 2636 and, instead, confirm that a
"genuine and substantial relationship of cause and effect" or a "genuine causal connection" must be
established between any particular subsidy found to exist and any adverse effect found to exist.2637
(ii) Analysis
1309. We begin with two preliminary observations. First, we note that the Panel declined to
"aggregate" the effects of these two groups of subsidies owing to their "distinct causal
mechanisms".2638 Although the Panel's reasoning suggests that it was declining to combine the two
groups of subsidies for the purpose of carrying out an aggregated analysis of their collective effects,
we also consider below whether the reason given by the Panel would have justified a refusal to
cumulate the effects of the B&O tax rate reductions with the effects of the aeronautics R&D subsidies.
1310. Second, we recall that, before the Panel, the European Communities presented separate
arguments as to how the aeronautics R&D subsidi es cause technology effects, and how all of the
subsidies (including the aeronautics R&D subsidies) cause price effects. The European Communities
argued that the aeronautics R&D subsidies have "two simultaneous effects" on prices, namely:
(1) direct price effects by allowing Boeing to price more aggressively
than would otherwise be possible; and (2) indirect price effects
through the earlier availability of technologically innovative products
like the 787 that require Airbus to lower, for example, its A330
prices to be able to compete. The second, indirect price effect results
from the "technology" or "product" effects of the US R&D
subsidies.2639 (original emphasis)

2635United States' appellee's submission, para. 203 (referring to European Union's appellant's
submission, paras. 205 and 206). (original emphasis)
2637United States' appellee's submission, para. 204 (referring to Appellate Body Report, US – Upland
Cotton, para. 438; and Appellate Body Report, EC and certain member States – Large Civil Aircraft ,
paras. 1376 and 1378).
2638Panel Report, para. 7.1824.
2639European Communities' response to Panel Question 285, para. 570.
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Thus, the European Communities' arguments with respect to direct price effects related to alleged
effects on Boeing's pricing, whereas its arguments with respect to indirect price effects focused on the
alleged effects on Airbus' pricing resulting from the technology effects of the subsidies on Boeing's
product offering.
1311. Ultimately, the Panel found that the R&D subsidies cause, inter alia, significant price
suppression of the A330 and the Original A350 in the 200-300 seat LCA market. The Panel's
reasoning suggests that it accepted the European Comm unities' theory regarding "indirect" effects on
Airbus' prices caused through the technology effects of the aeronautics R&D subsidies on Boeing's
product offering.
2640 Although the Panel did make one observation relating to Boeing's prices 2641, the
Panel does not appear to have found that the aeronautics R&D subsidies led directly to a reduction of
Boeing's 787 prices, for example through lowered manufacturing costs. 2642 Rather, the Panel's
principal finding was that Airbus was obliged to lo wer its prices due to the 2004 entry into the market
of Boeing's technologically superior 787.2643
1312. The section of the Panel Report dealing with the a lleged price effects of all of the subsidies is
separate from and subsequent to the section of its Report dealing with the technology effects of the
aeronautics R&D subsidies. In its analysis of the alle ged price effects of all of the subsidies at issue,
the Panel posed the question of whether it shou ld "analyze the effects of the aeronautics R&D
subsidies again, this time on the basis that they freed up additional cash which Boeing was able to use
to engage in aggressive pricing of its three families of LCA".2644 The Panel decided not to do so. The
Panel recalled that, in its analysis of the technolog y effects of this group of subsidies, it had expressed

2640The Panel explained why the A330 prices could be expected to, and did, fall upon the introduction
of the 787, namely, that "the combination of the superior technology and lower operating costs of the 787
clearly affected the comparative valu e of Airbus' A330 …, leaving Airbus no other option but to reduce the
prices of its aircraft in order to compete". (Panel Report, para. 7.1792)
2641The Panel considered that the ev idence of the results of specifi c sales campaigns showed that
Boeing won the sales with its 787 e ither because the customer perceive d competing Airbus products to be
technologically inferior, or because, ev en if the Airbus offering could m eet its requirements, it was "swayed by
the extremely low pricing offered by Boeing". (Panel Report, para. 7.1786)
2642Although the Panel acknowledged, and stated, that it had "no reason to doubt" the United States'
argument that "Boeing's 787 manufacturing costs have been lowered significantly by using commercially
available product life cycle management and design so ftware, sourcing common materials across suppliers, and
standardizing customer-selected options", the Panel emphasized that "one of the major focuses of the
aeronautics R&D subsidies was the development of innovative technologies that result in lower direct operating
costs to airlines." (Panel Report, footnote 3732 to para. 7.1792)
2643At the oral hearing, both participants accepted that the Panel had not made any findings with respect
to the effects of the aeronautics R&D subsidies on Boeing's prices.
2644Panel Report, para. 7.1826.
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the view that it was not "appropriate to reduce the ef fects of the aeronautics R&D subsidies at issue in
this dispute to their cash value."
2645 The Panel considered that:
{h}aving analyzed the effects of the aeronautics R&D subsidies on
the basis of their contribution to Boeing's development of
technologies for the 787, ... it would be over-counting to additionally
analyze their effects based on a different understanding of their
operation, namely, as freeing up additional cash for Boeing to use to
lower the prices of its LCA.
2646
1313. The European Union has not appealed this finding. In other words, the European Union is not
contending on appeal, as it did before the Panel, that the aeronautics R&D subsidies directly affected
Boeing's prices, in addition to the effects that they had on Boeing's development of technologies used
on the 787. Rather, the European Union's contention is that, in reaching its finding that the subsidies
at issue caused a threat of displacement and impeda nce of EC exports in third-country markets, and
significant lost sales and significant price suppression in the 200-300 seat LCA market, the Panel
should have added together the price effects of the B&O tax rate reductions and the technology effects
that the Panel found had been caused by the aeronautics R&D subsidies.
1314. Turning to the substance of this ground of th e European Union's appeal, we first recall that,
although the Panel found that there were three tied tax subsidies, only two of these—the B&O tax rate
reductions—were available to Boeing in connection with its manufacturing and sale of the 787 in the
200-300 seat LCA market.2647
1315. Like the European Union, we consider that the Panel's reasoning, in its analysis of the effects
of the tied tax subsidies within the 100-200 seat and 300-400 seat LCA markets, suggests that the
Panel considered that the B&O ta x rate reductions have a genuine causal connection with Boeing's
prices and, therefore, with Airbus' prices. The Panel underlined the direct connection between the
three subsidy measures in this group and Boeing's prices
2648, which stems from the fact that each of
these subsidies is directly tied to Boeing's sales of individual LCA. 2649 In deciding to aggregate these

2646Panel Report, para. 7.1826.
2647As explained supra, footnote 1882, the European Communities did not claim that the FSC/ETI
subsidies had adverse effects in the 200-300 seat LCA ma rket, and the Panel conducted its analysis on the basis
that these subsidies had no effects in that product market
2648Panel Report, para. 7.1807.
2649Panel Report, para. 7.1806.
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subsidies, the Panel expressed the view that "their structure, design and operation {is such} that they
affect Boeing's behaviour in a similar way."
2650 The Panel explained that:
… the FSC/ETI subsidies and the B&O tax subsidies, by lowering
the taxes incurred in connection with sales of LCA, clearly have a far
more direct and immediate relationship to aircraft prices and sales
than other subsidies at issue in th is dispute, such as the aeronautics
R&D subsidies.2651
1316. The Panel went on to find that the FSC/ETI subs idies, in combination with the B&O tax rate
reductions, "enabled Boeing to lower its prices be yond the level that would otherwise have been
economically justifiable, and that in some case s, this led to it securing sales that it would not
otherwise have made, while in other cases, it led to Airbus being able to secure the sale only at a
reduced price."2652 This in turn provided key support for th e Panel's ultimate finding that "the effects
of {the tied tax subsidies, including FSC/ETI} on Ai rbus' prices and sales constitute significant lost
sales and significant price suppression, … as well as displacement and impedance of exports from
third country markets" in the 100-200 seat and 300-400 seat LCA markets. 2653 It is true that the Panel
provided somewhat more reasoning with respect to the contribution of the FSC/ETI subsidies, as
opposed to the B&O tax reductions, to the effects on Boeing's prices, for example singling out the
export-contingent nature of those subsidies
2654 and their strategic importance to Boeing's
competitiveness in export markets. 2655 In our view, however, this reasoning simply reveals that the
Panel considered that the FSC/ETI subsidies made re latively more of a contribution to the effects and
market phenomena that it found to exist. We see no indication that the Panel's evaluation of the
directness of the link between the tied tax subsid ies and Boeing's pricing would have been any
different if it had analyzed only the B&O tax rate reductions.
1317. The Panel held that the aeronautics R&D subsid ies were a genuine and substantial cause of a
threat of displacement and impedance, significan t lost sales, and significant price suppression in the
200-300 seat LCA market, and we have uphe ld much of that finding on appeal. 2656 As explained, we
understand the Panel to have also found, albeit implicitly, that th e B&O tax rate reductions had a
genuine causal connection with Boeing's prices and, ther efore, with Airbus' prices. At first blush, it

2650Panel Report, para. 7.1805, setting out the relevant standard, which the Panel went on to apply in its
consideration, in paras. 7.1806 and 7.1807, of the stru cture, design, and operation of the FSC/ETI subsidies and
the B&O tax rate reductions.
2651Panel Report, para. 7.1807.
2652Panel Report, para. 7.1818.
2653Panel Report, para. 7.1822.
2654Panel Report, paras. 7.1808-7.1810.
2655Panel Report, para. 7.1817.
2656We recall that we have reversed the Panel's finding of a threat of displacement and impedance with
respect to three of the four third-country markets concerned. (Supra, para. 1090)
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seems to us that the next step for the Panel to ha ve taken would have been to consider whether the
effects of the B&O tax rate reductions complemented or supplemented the effects of the aeronautics
R&D subsidies within the 200-300 seat LCA market.
1318. At the oral hearing, the participants and the third participants engaged in a lengthy discussion
of the approach to cumulation endorsed by the Appellate Body in EC and certain member States –
Large Civil Aircraft . The United States suggested that the a pproach of the Appellate Body in that
dispute made clear that the effects of subsidies may be cumulated only when they manifest themselves
in the same way. Thus, in that dispute, cumulation was possible for those two groups of non-LA/MSF
subsidies that, like the LA/MSF subsidies, had "product" effects, in that they contributed to the launch
of specific models of Airbus LCA. According to the United States and Japan, the same approach is
not possible when, as in this dispute, some subsidies affect the recipient's products and other subsidies
affect its prices. The European Union, supported by Brazil, c ontended that the Appellate Body did
not suggest any such limitations in EC and certain member States – Large Civil Aircraft but, rather,
that cumulation should be undertaken whenever one group of challenged subsidies have been found to
constitute a genuine and substantia l cause of adverse effects, and other subsidies have been found to
have a direct nexus with the same subsidized product, irrespective of how the effects of those
subsidies have been found to manifest themselves. Canada suggested that this issue was not fully
resolved by the Appellate Body in that dispute.
1319. In our view, the issue of whether cumulation of the effects of different types of subsidies is
possible or appropriate is a question that must be answered in the light of the particular facts and
circumstances of a given case, including the subsidi es at issue and their nexus with the subsidized
products, the effects produced, and their relationshi p to the alleged Article 6.3 market phenomena.
2657
We do not see any a priori reason—such as, that different subsid ies operate through distinct causal
mechanisms—why cumulation would be precluded outright . We are particularly hesitant to set out a
rigid benchmark against which panels should test whether or not cumulation is appropriate based on
the facts of this dispute or of EC and certain member States – Large Civil Aircraft . Each of these
disputes involved very particular duopolistic markets, in which the market pa rticipants enjoyed some
degree of market power in their product and pricing decisions. In such markets, it may be that the
"product" or "technology" effects of subsidies can be examined separately from their "price" effects.
We nevertheless question whether such a segmented analysis is capable of fully reflecting market
dynamics and taking account of the scope for subsidies and their effects to interact in these types of
markets. Moreover, in many other markets, the structure of competition will be such that it will

2657Appellate Body Report, EC and certain member States – Large Civil Aircraft, para. 1376.
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simply be impossible meaningfully to conduct a separate analysis of, or distinguish between,
"product" effects and "price" effects.
1320. We are of the view that the Panel should have, in this dispute, considered whether the effects
of the B&O tax rate reductions complemented and supplemented th e effects of the aeronautics R&D
subsidies within the 200-300 seat LCA market, or, in other words, whether it would have been
appropriate to cumulate their effects. We do not consider the mere fact that the two groups of
subsidies operated through distinct causal mechanisms could, alone, have resolved the questions of
whether each group had effects relevant to the ser ious prejudice alleged and whether those effects
were capable of being combined in the Panel's an alysis of serious prejudice because they contributed
similarly to the relevant market phenomena. This is since, as we have explained, for purposes of
cumulating, the requisite genuine causal connection ca n be established even when the other subsidies
do not operate along the same causal pathway as the subsidy found to be a genuine and substantial
cause of Article 6.3 market phenomena, provided that those subsidies meaningfully contribute to the
same market phenomena caused by the first subsidy. When that is so, the e ffects of such subsidies
complement and supplement, and should be cumula ted with, the effects of the subsidy that is a
genuine and substantial cause of such phenomena.
1321. By closing its mind to such an approach, "owing to the very different way" in which the two
groups of subsidies operate and their "entirely distinct causal mechanisms"
2658, the Panel failed to give
full consideration to the possibility of cumulating th e effects of these two groups of subsidies. We
therefore find that the Panel erred in failing to consider whether the price effects of the B&O tax rate
reductions complement and supplement the technology effects of the aeronautics R&D subsidies in
causing significant lost sales and significant price suppression, and a threat of displacement and
impedance, in the 200-300 seat LCA market. The European Union does not request us to complete
the analysis on this issue.

2658Panel Report, para. 7.1824.
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(e) Whether the Panel erred in declini ng to assess collectively the effects
of the tied tax subsidies and the effects of the remaining subsidies
(i) Whether the Panel should have aggregated the remaining
subsidies with the tied tax subsidies or cumulated the effects
of these two groups of subsidies
1322. The European Union also requests us to reverse the Panel's finding that:
… {in} assessing the effects on Boeing's LCA pricing of
approximately $550 million in subsidi es, the receipt of which is not
directly tied to the production or sale of particular LCA ... {the Panel
was} not persuaded that subsidies of this nature and of this amount
have affected Boeing's prices in a manner that could be said to give
rise to serious prejudice to the European Communities' interests.
2659
1323. According to the European Union, the Panel e rred in reaching this finding because it assessed
the remaining subsidies in isolation, rather than aggregating them with the tied tax subsidies, or
cumulating their effects with those of the tied tax s ubsidies. Since, like the tied tax subsidies, the
remaining subsidies had a nexus with the subs idized LCA and with Boeing's pricing, the
European Union asserts that, either the Panel shoul d have conducted an a ggregated assessment of
their effects, or, after determining that the tied ta x subsidies caused serious prejudice, it should have
cumulated the effects of these two groups of subsidies. The European Union st resses, in this regard,
that the Appellate Body recognized, in US – Upland Cotton , that untied (non-price-contingent)
subsidies can have price effects.
1324. The United States considers that the Panel did not err in declining to undertake a collective
assessment of the remaining subsidies and the tied subsid ies in its analysis of adverse effects. In the
view of the United States, this ground of the European Union's appeal relies on an incorrect
understanding of the panel reports in US – Upland Cotton and EC and certain member States – Large
Civil Aircraft, and a flawed interpretation of Articles 5 and 6.3 of the SCM Agreement as requiring the
collective assessment of " any and all subsidies benefiting the subsidised product in the market at
issue."2660 The United States emphasizes that no suffi cient nexus between the remaining subsidies
and the subsidized products was established. The United States argues that there was virtually no
evidence before the Panel as to how the remaining subsidies were used2661, and the Panel never agreed
with the European Communities' contention that th e remaining subsidies confer the equivalent of

2659Panel Report, para. 7.1828.
2660United States' appellee's submission, para. 219 (quoting European Union's appellant's submission,
para. 205 (original emphasis)).
2661United States' appellee's submission, para. 214 (quoting Panel Report, footnote 3786 to
para. 7.1828, in turn referring to United States' comm ents on the European Communities' response to Panel
Question 301, paras. 601 and 602).
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additional cash flow or found that the remaining subs idies impact the same "effects-related variable"
as the tied tax subsidies—namely, price. For the Un ited States, the circumstances of this dispute are
comparable to those in EC and certain member States – Large Civil Aircraft , where the Appellate
Body found that the panel had erred in cumulating th e effects of the R&TD subsidies with the effects
of the LA/MSF subsidies because "a general finding th at they enabled Airbus to develop 'features and
aspects' of its LCA on a schedule that otherwise it would have been unable to accomplish does not
provide a sufficient basis to determine that R& TD subsidies 'complemented and supplemented' the
'product effect' of LA/MSF in enabling Airbus to launch particular models of LCA."
2662 Thus,
submits the United States, the approach taken by the Appellate Body in EC and certain member States
– Large Civil Aircraft affirms that the Panel in this dispute was correct to decline to undertake any
collective assessment of the tied tax subsidies and the remaining subsidies, or their effects.
1325. As indicated above, the Panel did not explicitly address the question of whether it should have
collectively assessed these two groups of subsidies and th eir effects. This is surprising given that the
European Communities had consistently argued that all of the subsidies had effects on Boeing's
pricing, and that the Panel should have collectively assessed such effects. Accordingly, we simply do
not know whether the Panel did not collectively assess these two groups of subsidies or their effects
because, as with the aeronautics R&D subsidies and the B&O tax rate reductions, it considered that
the two groups of subsidies operated through "distinct causal mechanisms", or for some other reason.
1326. Although the absence of any reasoning by the Panel is problematic, we consider that there is
support on the record for the view that the Panel did not act outside the scope of its discretion by not
conducting an aggregated analysis of these two groups of subsid ies. Most importantly, the Panel's
explanations of the operation of th e tied tax subsidies, on the one ha nd, and the remaining subsidies,
on the other hand, strongly suggest that the Panel considered them to be different in nature. The Panel
explicitly drew a contrast between the two groups, explaining that the remaining subsidies, "unlike the
FSC/ETI subsidies and B&O tax {r ate reductions} ..., are not directly related to Boeing's production
or sale of LCA." 2663 Furthermore, in its submissions to the Panel, the European Communities itself
accepted that these subsidies were, at least to some extent, different in nature. 2664 I n a d d i t i o n , i n
seeking to quantify the price effects of these two groups of subsidies, the European Communities
drew a distinction between the extent of the effects on Boeing's prices that would flow from the tied

2662United States' appellee's submission, para. 218 (quoting Appellate Body Report, EC and certain
member States – Large Civil Aircraft, para. 1407).
2663Panel Report, para. 7.1827.
2664The European Communities emphasized that, because they were contingent on the production and
sale of LCA units, the tied tax subsidies reduced Boeing's marginal unit costs. (Panel Report, para. 7.1608) In
contrast, the European Communities accep ted that the remaining subsidies we re not tied to per-unit sales or
production, but alleged that they increased Boeing's non-operating cash flow. (Ibid., paras. 7.1609 and 7.1827)
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tax subsidies (which the European Communities cl aimed would be a dollar-for-dollar reduction per
LCA produced or sold) as compared to the rema ining subsidies (which the European Communities
claimed, based on the Cabral Report, would be some what less than that). For these reasons, we are
unable to accept the European Union's contentio n that the Panel erred in failing to conduct ex ante an
aggregated analysis of these two groups of subsidies and their effects.
1327. We find more persuasive force in the European Union's alternative argument, namely, that the
Panel erred in failing to make a cumulative assessment of whether the remaining subsidies affected
Boeing's prices in a way similar to the tied tax subsidies, such that they complemented and
supplemented the effects of the tied tax subsidi es that the Panel had found to be a genuine and
substantial cause of displacement and impedance, significant lost sales, and significant price
suppression in the 100-200 seat and 300-400 seat LCA markets. The European Communities
consistently maintained before the Panel that all of the subsidies—the tied tax subsidies, the
remaining subsidies, and the aeronautics R&D subs idies—contributed to Boeing's ability to reduce,
and to the actual reduction of, its LCA prices and th e consequent adverse effects on Airbus in the
market. As explained above, the Panel identified—albeit briefly—the reason why it did not assess the
effects on Boeing's 787 prices alleged to have resulted from the aeronautics R&D subsidies
2665, and
this aspect of the Panel's approach has not been appealed.
1328. The Panel undertook only a cursory analysis of the alleged effects of the remaining subsidies.
The Panel acknowledged that a subsidy of the nature of the remaining subsidies could "affect the
behaviour of the recipient of the subsidy in a manner that causes serious prejudice , depending upon
the context in which it is used" even though the recei pt of such subsidy "is not directly tied to the
production or sale of particular LCA".2666 After referring to the $550 million amount of the subsidies,
however, the Panel stated that it was "not persuaded that subsidies of this nature and of this amount
have affected Boeing's prices in a manner that could be said to give rise to serious prejudice to the
European Communities' interests".2667 The Panel, however, should not ha ve limited its analysis to the
question of whether these subsidies constitute a ge nuine and substantial cause of serious prejudice on
their own . Instead, the Panel should have inquired as to whether the remaining subsidies had a
genuine causal relationship with, that is, made a real or meaningful contribution to, the effects that it
had found the tied tax subsidies to have on Boeing's LCA pricing, such that the remaining subsidies
could be said to complement and supplement those effects and, thereby, the serious prejudice caused

2665The Panel considered that, "{h}av ing analyzed the effects of the aeronautics R&D subsidies on the
basis of their contribution to Boeing's development of technologies for the 787", "it would be over-counting to
additionally analyze their effects based on a different unde rstanding of their operation, namely, as freeing up
additional cash for Boeing to use to lower the prices of its LCA". (Panel Report, para. 7.1826)
2666Panel Report, para. 7.1828. (emphasis added)
2667Panel Report, para. 7.1828. (emphasis added)
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to the interests of the European Communities. Instead, having found that the tied tax subsidies were a
genuine and substantial cause of Article 6.3 phe nomena, the Panel failed to ascertain whether a
genuine causal relationship existed between these ph enomena and the remaining subsidies, and failed
to consider whether the effects of the tied tax subs idies and those of the remaining subsidies could or
should be cumulated.
1329. For these reasons, we find that the Panel erred in concluding, in paragraphs 7.1828 and 7.1855
of the Panel Report, that the remaining subsidies had not been shown to have affected Boeing's prices
in a manner giving rise to serious prejudice, without having considered whether those subsidies had a
genuine relationship to, and effects on, such prices. Accordingly, we reverse that finding, which was
reached without having given full consideration to the claim as presented by the
European Communities.
1330. We emphasize that, in reaching this conclusion, we are not suggesting that the mere fact that
the Panel had found the tied tax subsidies affected Boeing's prices and were a genuine and substantial
cause of adverse effects means that the remain ing subsidies necessarily had similar effects.
2668
Rather, we fault the Panel for failing to address this question at all, particularly given the
European Communities' consistent position that both groups of subsidies had similar effects on
Boeing's pricing and contributed to the same market phenomena.
(ii) The European Union's request for completion of the analysis
1331. The European Union requests us to complete the an alysis and find that, together with the tied
tax subsidies, the remaining subsidies cause adverse effects. The European Union requests that we
conduct an aggregated assessment of these two groups of subsidies and find that they both provided
Boeing with pricing advantages and caused the sa me market effects. Alternatively, the
European Union requests that we cumulate the effe cts of these two groups of subsidies or, in other

2668Similarly, in EC and certain member States – Large Civil Aircraft , the Appellate Body cautioned
that "{t}he fact that LA/MSF measures enabled certai n product launches, and therefore were a genuine and
substantial cause of displacement and lost sales during the reference period, does not in and of itself establish
that non-LA/MSF subsidies had similar effects." (Appellate Body Report, EC and certain member States –
Large Civil Aircraft, para. 1379)
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words, find that the effects of the remaining s ubsidies complemented and supplemented the price
effects that the Panel found to have been caused by the tied tax subsidies.
2669
1332. In response, the United States emphasizes the differences between the facts of this dispute and
those in EC and certain member States – Large Civil Aircraft . The United States argues that the
European Union does not identify relevant factual findings or undisputed facts that would enable us to
complete the analysis, and asserts that there are no such findings or undisputed facts on the record.
1333. We begin by considering whether we can or s hould seek to aggregate the remaining subsidies
with the tied tax subsidies. We recall the differenc es between these two groups of subsidies that were
identified by the Panel2670 and, indeed, by the European Communities itself. 2671 We further recall that
we have already found that the Panel did not err in failing to undertake an aggregated analysis of these
two groups of subsidies.2672 Accordingly, we do not consider that it would be appropriate to ourselves
consider the same question again.
1334. We thus turn to the European Union's alternativ e request that we find that the effects of the
remaining subsidies complemented and supplemented the effects of the tied tax subsidies on Boeing's
prices, and the consequent adverse effects that the Panel found to have been caused. We have

2669As with its arguments with respect to the Panel' s alleged error, the European Union's arguments
shifted somewhat between its appellant's submission (submit ted before circulation of the Appellate Body report
in EC and certain member States – Large Civil Aircraft ) and the arguments put forward in its appellee's
submission and at the oral hearing. In its appellant's submission, the European Union seeks completion of the
analysis through application of the approach used in US – Upland Cotton, and focuses on the nexus between the
subsidies and the product and between the subsidie s and the relevant market effect. Although the
European Union has not abandoned these arguments, its subsequent submissions focus more on the approach
used in EC and certain member States – Large Civil Aircraft . Relying upon the Appellate Body report in that
dispute, the European Union requests that we find that, because the remaining subsidies have a genuine causal
link with the same claimed effect (on prices), and because the Panel found that the tied tax subsidies caused, in
and of themselves, serious prejudice, the remaining subsidies complemented and supplemented the price effects
of those tied tax subsidies.
2670Supra, para. 1326.
2671We recall that, before the Panel, the European Communities distinguished between the way in
which each group of subsidies affected Boeing’s prices, and the extent to which each group of subsidies was
used by Boeing to reduce the prices of its LCA. Although the European Communities argued that all of the
subsidies, in both categories, led to Boeing pricing its LCA at a lower level than it otherwise would have, it
characterized the tied tax subsidies as subsidies that dir ectly reduced Boeing's marginal costs of production, and
the remaining subsidies as subsidies that increased Boeing's non-operating cash flow. With respect to the
subsidies alleged directly to reduce Boeing's marginal unit costs, the European Communities considered that
these had "particularly strong price e ffects", namely, the effect of reduci ng Boeing's LCA prices on a "dollar-
for-dollar" basis. In order to calculate the price-reduc ing effects of the subsidies alleged to increase Boeing's
non-operating cash flow, the European Communities relied upon a model prepared by its economic expert, Luís
Cabral, which estimated the price effects of such subsidies. (See European Communities' first written
submission to the Panel, paras. 1302, 1370, 1477, and 1571; Panel Report, Appendix VII.F.2 – The Cabral
Model; and Cabral Report).
2672Supra, para. 1326.
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reversed the Panel's findings regarding the effects of the tied tax subsidies.
2673 Furthermore, in
completing the analysis of the European Union's claim, we have found that the FSC/ETI subsidies and
the State of Washington B&O tax rate reduction we re, through their effects on Boeing's prices for
its 737NG, a genuine and substantial cause of significant lost sales in the 100-200 seat LCA
market.
2674 Accordingly, the question that we must a ddress is whether the effects of the remaining
subsidies complemented and supplemented these effects.
1335. We recall that, in EC and certain member States – Large Civil Aircraft , the Appellate Body
accepted that the effects of one group of subsidies ma y only be found to complement and supplement
the effects of a second group of subsidies when that first group of subsidi es is shown to have a
genuine causal connection with the relevant effect s and market phenomena caused by the second
group of subsidies. 2675 This is because the fact that the first group of subsidies is not, in itself, a
substantial cause of adverse effects does not exclude that it had effects similar to those of another
group of subsidies that was both a genuine and a substantial cause of those effects. Cumulation of this
sort does, however, require an affirmative showi ng that there is a genuine causal nexus between the
first group of subsidies and the effects and mark et phenomena to which they are alleged to be
contributing.
1336. It is undisputed that none of the remaini ng subsidies was contingent upon the production or
sale of particular LCA. 2676 The Panel noted that both parties ac cepted the proposition that the receipt
of such subsidies "may still affect the behaviour of the recipient of the subsidy in a manner that causes
serious prejudice, depending upon the context in which it is used."2677 The Panel further observed that
the European Communities had identified a number of elements as demonstrating that, in the context
of this dispute, the remaining subsidies did affect Boeing's pricing including: "LCA market factors",
"dynamics of production", and the "intense duopol y competition existing in the LCA markets". 2678
We considered several of these factors in completing the analysis of the Eur opean Union's claim that,
through their price effects, the tied tax subsidies caused serious prejudice. 2679 We accepted that the

2673Supra, paras. 1249 and 1274.
2674Supra, para. 1274.
2675Appellate Body Report, EC and certain member States – Large Civil Aircraft , paras. 1378
and 1379.
2676Panel Report, paras. 7.1827 and 7.1828.
2677Panel Report, para. 7.1828. The United States, however, considered it "unlikely" that subsidies that
are not tied to production of a particular product would affect production. ( Ibid., paras. 7.1827 and 7.1828) We
also recall that, with respect to the capability of an untied subsidy to affect price and output decisions, the
Appellate Body stated in US – Upland Cotton that it did not "not exclude the possibility that challenged
subsidies that are not 'price-contingent' … could have some effect on production and exports and contribute to
price suppression." (Appellate Body Report, US – Upland Cotton, footnote 589 to para. 450)
2678Panel Report, para. 7.1827.
2679See section X.D.4(d) of this Report.
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100-200 seat LCA market operates as a duopoly, in which Airbus and Boeing each possesses the
ability, through its supply and pricing decisions, to influence the pricing of the other. We further
observed that price appears to have been a partic ularly important consideration in the 100-200 seat
LCA market due to the relatively high degree of substitutability between the A320 and the 737NG,
and the fact that many customers within this product market are low-cost carriers, which are
particularly price-sensitive. We noted the Panel' s finding that, in late 2004 or early 2005, Boeing
altered its overall pricing strategy and became more "aggressive" on price.
2680 Furthermore, we
referred to the Panel's finding that certain LCA sales campaigns are more competitive and more price-
sensitive than others. 2681 Finally, based on our examination of the uncontested facts relating to the
evidence of specific sales campaigns, we determined that Boeing was under particular pressure to
reduce its prices in order to secure 737NG sales in the 2005 JAL and SALE campaigns, and we
concluded that it used the FSC/ETI subsidies and th e State of Washington B&O tax rate reduction to
do so.2682
1337. These findings are equally relevant to our analys is of whether the remaining subsidies had a
genuine causal link to Boeing's pricing of its 7 37NG in those two campaigns because they establish
Boeing's strong incentives to employ available means to lower its 737NG prices and secure those
sales. Accordingly, we consider that, in th e circumstances of those two sales campaigns, the
necessary causal link will be established if there are uncontested facts or factual findings by the Panel
linking the remaining subsidies, or any of them, to the 737NG. This will su ffice to establish that the
benefits of such subsidies were among the mean s available to Boeing in those campaigns and,
thereby, to demonstrate a genuine nexus between such remaining subsidies and the 737NG.
1338. The remaining subsidies comprised eight measures provided in several different jurisdictions,
at both the local and state level, and pursuant to sev eral different subsidy programmes. Several of the
financial contributions were in the form of tax credits or tax reductions 2683, some were direct transfers

2680Panel Report, Appendix VII.F.2 – The Cabral Model, p. 777, para. 68 and footnote 4250 thereto.
2681Panel Report, paras. 7.1694 and 7.1820.
2682See supra, para. 1271.
2683With respect to the Washington State tax meas ures, the subsidies are the B&O tax credits for
preproduction development, computer software and hardwa re, and property taxes, as well as the sales and use
tax exemptions for computer hardware, peripherals, and software. As regards the Kansas State tax-related
measures, the subsidy is the property and sales tax abatem ents arising from IRBs. As for the Illinois State tax
measures, the subsidies are a reduced income tax liabilit y due to certain tax credits and partial property tax
abatements.
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of funds
2684, and still others were found to involve the provision of both goods and services. 2685 The
amount of the different subsidies ra nged from $0.5 million to $475.8 million. 2686 As for the time
periods over which they were received, most of the measures involved financial contributions
available on an annual basis over a defined period of time and were found to have been received
annually for periods of up to 17 years 2687, although one subsidy involved a one-off payment to retire a
lease.2688
1339. The Panel observed that the amount of the remaining subsidies was "comparatively small,
being approximately $550 million" a nd that none of the remaining subsidies was "directly related to
Boeing's production or sale of LCA". 2689 While we agree with these statements to some extent, we
consider that they are overbroad. For instance, as indicated above, the size of each subsidy varied
considerably, from $0.5 million to $475.8 million. Fu rthermore, the magnitude of the subsidy, while
still a relevant consideration, is of somewhat less consequence when the issue is whether the effects of
the subsidy can be cumulated with the effects of another group of subsidies that have been found to be
a genuine and substantial cause of serious prejudice, rather than whether the subsidy itself caused the
serious prejudice. In addition, the uncontested fact that the subsidies are not "tied" does not
necessarily imply that none of them are "directly related to Boeing's production or sale of LCA". 2690
It is true, as the Panel appears to have recognized 2691, that none of the remaining subsidies was "tied"
to the production or sale of specific LCA, in the sense th at we have used that term in this Report. In
other words, receipt of the subsidy was not contingent on the production or sale of a particular product

2684These subsidies are Illinois State's reimbursement of up to 50% of Boeing's relocation expenses, and
the payment of $1 million to retire the lease of the previous tenant of Boeing's headquarters building. (Panel
Report, para. 7.907)
2685These subsidies are Washington State's Employment Resource Center and workforce development
programme. (Panel Report, para. 7.588)
2686The Panel determined that the benefit to Boeing's LCA division from the property tax abatements
provided to Boeing pursuant to the IRBs issued by the State of Kansas and municipalities therein was the
amount directly received by Boeing over the period 1989-2006, namely, $475.8 million. (Panel Report,
para. 7.818) The Panel also determined that the City of Chicago had paid $1 million to retire the lease of the
previous tenant of Boeing's new headquarters building, and allocated 50% of that $1 million amount to Boeing's
LCA division. (Ibid., paras. 7.902 and 7.932)
2687The Panel found that the property and sales tax abatements provided pursuant to the IRBs issued by
the State of Kansas and municipalitie s therein were received by Boeing 's LCA division over the period
1989-2006. (Panel Report, para. 7.818)
2688Panel Report, para. 7.902.
2689Panel Report, para. 7.1827. The Panel furt her referred to the European Communities'
acknowledgement that the subsidies were not "explicitly targeted at lowering Boeing's costs of production of
specific LCA models". (Ibid., quoting European Communities' first written submission to the Panel, para. 1303)
2690Panel Report, para. 7.1827.
2691The Panel stated that the receipt of the remaining subsidies "is not directly tied to the production or
sale of particular LCA". (Panel Report, para. 7.1828)
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on a per-unit basis.
2692 Yet all of the remaining subsidies are subsidies intended to cover some portion
of the fixed costs that Boeing incurs, for ex ample, its costs for purchasing or improving
manufacturing facilities for components, for purchasi ng computer hardware and software, for training
workers, or for obtaining early access to its ne w corporate headquarters building in Chicago.
Moreover, as explained further below, some of thes e subsidies are more directly related to Boeing's
production of LCA and in particular to its production of the 737NG, than others.
1340. Indeed, before the Panel, the European Comm unities itself argued that certain of these
subsidies were more closely linked to LCA produc tion than others, and in some instances to the
production of particular LCA models. The Eur opean Communities distinguished among subsidies
that benefited the 787 only (category A); subsidies that benefited multiple aircraft families, including
the 737NG (category C); and subsidies that benefited Boeing's LCA business in general
(category E).2693
1341. Importantly, the European Communities cla ssified the Washington State workforce
development programme and Employ ment Resource Center as category A subsidies, that is, as
subsidies benefitting only the 787. Thus, the European Communities did not, in its first written
submission to the Panel, contend that the Wash ington State workforce development programme and
Employment Resource Center benefited Boeing's 737NG or affected the pricing of this Boeing
model.2694 In addition, although the European Co mmunities initially asserted that all of the
Washington State B&O tax credits were category C s ubsidies that benefited several aircraft families
including the 737NG, in subsequently quantifying the amount of the B&O tax credit for property

2692The Panel further noted that the European Communities did not use the word "tied" in this way.
Rather, the European Communities used the concept "to denote the allocation of a subsidy amount to particular
products, rather than to denote that a subsidy is 'tied' to a product in the sense that its receipt is in some way
contingent on production or sale of a particular product". (Panel Report, footnote 3783 to para. 7.1827; see also
European Communities' response to Panel Question 374, paras. 297 and 298 and f ootnote 392 thereto) The
European Communities explained that it considered a subsidy to be "tied"" when it is "directed at specific
products, such that the benefit of the subsidy may reasonably be deemed to flow to those products", and that, in
the context of this dispute, it consider ed a subsidy to be "tied" when "it benefits one or more particular aircraft
families – e.g., the City of Everett B&O tax reduction that benefits Boeing's 777 and 787, as well as its 747 and
767, but not Boeing's 717, 737, or 757". (European Communities' respons e to Panel Question 374, para. 298
(original emphasis))
2693European Communities' response to Panel Question 374, footnote 396 to para. 298; International
Trade Resources LLC, "Calculating on a Per-Aircraft Ba sis the Magnitude of the Subsidies Provided to US
Large Civil Aircraft" (20 February 2007) (Panel Exhibit EC-13), para. 32 and Tables 7 and 10. See also
European Communities' first written submission to the Pa nel, paras. 1226-1278. The European Communities
referred to subsidies that benefited: the 787 only (cat egory A); all Boeing aircra ft families except the 787
(Category B); all aircraft families except the 717 (categ ory C); all aircraft families except the 717, 737NG and
757 (Category D); and all aircraft families (category E). (International Trade Resources LLC, "Calculating on a
Per-Aircraft Basis the Magnitude of the Subsidies Provided to US Large Civil Aircraft" (20 February 2007)
(Panel Exhibit EC-13), Table 10)
2694See European Communities' first written submission to the Panel, Figure 41 – US Subsidies
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taxes, the European Communities stated that the entire amount related to "new construction related to
the 7E7 plane" at Boeing's Everett facility—that is, to production facilities for the 787.
2695 In other
words, the European Communities' own submissions reveal that this B&O tax credit benefited only
the 787. For these reasons, we cannot now in quire whether the Washington State workforce
development programme, the Employment Resource Center, or the Washington State B&O tax credit
for property taxes benefited the production of the 737NG, or whether the effects of these three
subsidies can be cumulated with those of the tied tax subsidies in the 100-200 seat LCA market.
1342. The European Communities also categorized as category E subsidies, benefiting Boeing's
LCA business generally, the four subsidies that we re granted in connection with Boeing's relocation
of its corporate headquarters to the State of Illinois. 2696 The European Comm unities recognized that
subsidies of this nature are "not directed at a pa rticular product, but rather at the entire company or
business unit at issue", but contended that such su bsidies "may reasonably be deemed to benefit
all of the company or business unit's products". 2697 In our view, these arguments by the
European Communities do not suffice to link clearly these four measures with Boeing's production of
the 737NG. We also note that these subsidies we re received by The Boeing Company, and that the
Panel allocated a percentage of the overall amount received to Boeing's LCA division. 2698 For these
reasons, we are not persuaded that these subsidies ha ve been shown to have meaningfully contributed
to any lowering of Boeing's prices for its 737NG, or, in other words, that there is a genuine causal link
between these subsidies and the relevant market ef fects. For this reason, we cannot cumulate the
effects of these subsidies with those of the tied tax subsidies in the 100-200 seat LCA market.
1343. The European Communities contended that the ot her remaining subsidies benefited particular
families of aircraft, including the 737NG family. Th ese subsidies, and their amounts, are as follows:
(i) the Washington State B&O tax credits for prepro duction development, and for computer software

2695Panel Report, para. 7.217.
2696These subsidies consisted of: (i) the reimbursement of a portion of Boeing's relocation expenses by
the State of Illinois; (ii) the 15-year EDGE tax credits provided by the State of Illinois; (iii) the abatement or
refund of a portion of Boeing's property taxes provided by the State of Illinois; and (iv) the payment to retire
the lease of the previous tenant of Boeing's new headquarters building in Chicago.
2697European Communities' response to Panel Question 374, para. 298.
2698The Panel accepted a 50% allocation to Boeing's LCA division of the total amounts paid. (Panel
Report, para. 7.932) The European Communities explained in its first written submission that it had allocated
50% to Boeing's LCA division "because, over time, approximately 50% of Boeing's total sales have, on average,
related to LCA". (European Communities first written submission to the Panel, para. 384) The United States
responded that, "{a}lthough the EC's fifty percent allocation to large civil aircraft is not necessarily accurate, the
United States accepts it only for the pu rposes of the Illinois State measures because the monetary values
involved are small and a more accurate allocation, such as one based on revenue, would thus not necessarily
result in a meaningful change in the figures." (United States first written submission to the Panel, footnote 852
to para. 663)
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and hardware ($41.3 million
2699); (ii) the Washington State sales and use tax exemptions for
computer hardware, peripherals , and software ($8.3 million 2700); and (iii) the property and sales tax
abatements provided to Boeing pursuant to IRBs issued by the City of Wichita ($475.8 million2701).
1344. Boeing obtained Washington State B&O tax credits for certain preproduction development
expenditures, that is, for expenditures on aeronau tics-related research, design, and engineering
activities2702, as well as for certain expenditures on design and preproduction development computer
software and hardware for the digital desi gn and development of commercial airplanes. 2703 These tax
credits were applied against Boeing's liability for B&O taxes which, as we have indicated, accrued in
connection with the manufacture and sale of all Bo eing LCA produced in the State of Washington,
including the 737NG. However, we see no indicati on on the record that the B&O tax credits were
received in connection with expenditures related to the 737NG. Indeed, the limited information that
there is on the record suggests that, if anything, th e expenditures generating the tax credits related to
Boeing aircraft families other than the 737NG.2704
1345. Turning to the Washington State sales and use tax exemptions, we note that Boeing received
sales and use tax exemptions in connection with its purchases of computer hardware, peripherals, and
software, when these were purchased for or used in the development of commercial airplanes or their

2699Specifically, the Panel found that, through 2006, the amount of the B&O tax credit for
preproduction development was $21.3 million, and the amount of the B&O tax credit for computer software and
hardware was $20 million. (Panel Report, para. 7.257)
2700Panel Report, paras. 7.258.
2701Panel Report, para. 7.818.
2702Panel Report, paras. 7.51 and 7.52, summarizing a nd reproducing relevant parts of section 7 of
House Bill 2294.
2703Panel Report, paras. 7.53 and 7.54, summarizing a nd reproducing relevant parts of section 8 of
House Bill 2294.
2704In calculating the amount of these two tax credits, the Panel relied mainly on a Fiscal Note from the
Washington State Department of Revenue. (Panel Report, paras. 7.255-7.257 (referring to Washington State
Department of Revenue, "Final HB 2294 Fiscal Note – 20-Year Spreadsheet: Commercial Airplane/Component
Industry Tax Incentives" (Panel Exhib it US-184)) That spreadsheet refers to "Everett" and thus appears to
suggest that the estimated amounts of Washington State B&O tax credits received for expenditures on
preproduction development computer software and hard ware related to Boeing's facilities in Everett,
Washington. The City of Everett houses Boeing's facilities for the final assembly of its twin-aisle LCA families
(during the reference period, Everett was the future site of the 787 assembly facilities, and the actual site of the
facilities where final assembly of Boeing's 747, 767, and 777 families occurred). In contrast, final assembly of
Boeing's single-aisle 737NG takes place in Renton, Wa shington. (See European Communities' first written
submission to the Panel, para. 46; and United States' fi rst written submission to the Pa nel, para. 852) We also
note that, on their face, Sections 7 an d 8 of House Bill 2294 suggest that both of these tax credits relate to
"preproduction" expenditures and that, during the reference period, the 737NG was already in production,
whereas the 787 was still in the "preproduction" phase. Section 7 allows a B&O tax credit "for preproduction
development spending", and defines "preproduction development" as "research, design, and engineering
activities performed in relation to the development of a pr oduct", while Section 8 refers to " a credit … for the
investment related to design and preproduction devel opment computer software and hardware acquired … and
used by an eligible person primarily for the digital design and development of commercial airplanes". (See
Panel Report, paras. 7.52 and 7.54)
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components.
2705 Like the B&O tax credits discussed above, these tax exemptions formed part of the
package of measures contained in House Bill 2294. Although this package of measures was intended
to provide incentives to Boeing to locate its 787 pro duction facilities in the City of Everett, the tax
measures that it contained were, in principle, availa ble in respect of all Boeing aircraft manufactured
in Washington State, and not only in respect of the 787. 2706 Again, however, we see no indication on
the record that the sales and use tax exemptions were received or expected to be received in
connection with expenditures related to the 73 7NG, and the limited information on the record
suggests that, if anything, the sales and use tax exemptions were granted in connection with
expenditures related to Boeing aircraft families other than the 737NG.2707
1346. For these reasons, we consider that neither th e Panel's findings nor the uncontested facts on
the record demonstrate a genuine link between Bo eing's 737NG and the B&O tax credits for certain
preproduction development expenditures and for co mputer software and hardware, or between
the 737NG and the sales and use tax exemptions for computer hardware, software, and peripherals.
1347. Finally, we consider whether the City of Wich ita IRBs have a genuine connection to Boeing's
737NG. The Panel found that the IRB scheme was desi gned to assist in raising revenue to fund the
purchase, construction, or improvement of i ndustrial property used for manufacturing purposes 2708,
including real property as well as commercial and industrial machinery and equipment. 2709 The IRBs
issued to Boeing were specifically aimed at, and were used for the purpose of, enhancing Boeing's

2705Panel Report, paras. 7.59 and 7.60, summarizing an d reproducing sections 9(1) and 10(1) of House
Bill 2294.
2707In calculating the amount of this subsidy, the Panel relied on a PowerPoint presentation submitted
by the European Communities. The amounts that th e Panel estimated Boeing would receive during the
reference period ($8.3 million from 2004-2006) were derived from a chart projecting that, through 2024, Boeing
would receive a net benefit of $56 million. The sa me figure—$56 million—was listed earlier in the same
presentation as the "Everett value" of the sales tax exemp tion for computer hardware, peripherals, and software.
Given that, as we have indicated, Boei ng's assembly of the 737NG occurs in Renton, rather than in Everett,
Washington, this could suggest that this sales and use tax exemption was linked to the production of Boeing
models other than the 737NG. (See "Washington State and the Boeing Company: Working Together for the
Boeing 7E7 Dreamliner, Continuing Support and Collaborative Actions", PowerPoint presentation,
Greenville, SC (September 2003) (Panel Exhibit EC-65), p. 55 and Appendix thereto entitled "HB 2294
(through FY2024) Superefficient Commercial Airplane Production in Washington State – Sales Tax Exemption
for Computers") Furthermore, the Panel observed that th e estimates contained in the presentation were "based
upon an indication from Boeing of site needs for a 787 assembly facility ." (Panel Report, para. 7.142 (emphasis
added)) Thus, we see no indication in that Panel Exhibit or in the Panel Report of any connection between
Boeing's production of the 737NG and the benefits exp ected to accrue to Boeing from the sales and use tax
exemption.
2708Panel Report, paras. 7.651 and 7.652.
2709Panel Report, para. 7.708.
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manufacturing facilities in Wichita.
2710 Those manufacturing facilities produced parts for Boeing
LCA including, notably, the 737NG.2711 Indeed, in June 2005, Boeing's website identified its Wichita
facilities as producing "75 percent of the airframe of th e 737, the best-selling jetliner in history. For
the Next-Generation 737-600/ -700/ -800/-900 and Boeing Business Jet models, Wichita joins the
forward and aft fuselage assemblies into one unit prior to shipment by rail to its sister division in
Renton, Wash., where final assembly and delivery takes place".
2712 In our view, these considerations
reveal a close connection between the IRBs and Boeing's production of the 737NG.
1348. Like the Panel and, indeed, the participan ts, we have no difficulty accepting the general
proposition that subsidies that are not di rectly contingent upon production or sale can nevertheless
affect pricing decisions in some circumstances. 2713 We have also explained above the basis for our
view that the circumstances of the JAL and SALE ca mpaigns were such that we are satisfied that
Boeing used the FSC/ETI subsidies and the State of Washington B&O tax rate reduction to lower
its 737NG prices.2714 Within this product market and in the circumstances of those campaigns, we are
further satisfied that Boeing would have used all available means to reduce its prices to the extent
necessary to secure those sales, including subsidy benefits directly linked to production of the 737NG.
The IRBs cannot be considered trivial in terms of their overall magnitude or duration, and they have a
genuine link to Boeing's production of the 737NG. For these reasons, we consider that Boeing's IRB
benefits enhanced the pricing flexibility that it en joyed by reason of the tied tax subsidies in the
circumstances of those two sales campaigns. Accordingly, we find that the effects of the City of
Wichita IRBs complemented and supplemented the price effects of the FSC/ETI subsidies and the
State of Washington B&O tax rate reduction, ther eby causing serious prejudice, in the form of
significant lost sales, within the meaning of Articles 5(c) and 6.3(c) of the SCM Agreement, in the
100-200 seat LCA market.

2710The Panel found that IRBs were "for the purpose of providing funds for the acquisition,
construction, reconstruction and improvement of certain industrial and manufacturing facilities of Boeing
Commercial Airplanes, Wichita Division". (Panel Report, para. 7.815)
2711The Panel explained that, over a period of 70 years, Boeing's manufacturing facility in Wichita
produced parts for every Boeing LCA except the 717. (Panel Report, para. 7.857)
2712Wichita Overview, "Boeing Commercial Airplanes, Wichita Division", printout dated 1 June 2005,
from <http://www.boeing.com/commercial/wichita/commercial.htm> (Panel Exhibit EC-157).
2713The Panel noted that both partie s appeared to accept the propositio n that, "where a subsidy is not
tied to production of a particular product, the subsidy may still affect the behaviour of the recipient of the
subsidy in a manner that causes serious prejudice, depending upon the context in which it is used." (Panel
Report, para. 7.1828)
2714See supra, para. 1271.
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3. Conclusion
1349. In our consideration of the European Union's appeal, we have found that the Panel erred in
failing to consider whether the price effects of the B&O tax rate reductions complemented and
supplemented the technology effects of the aeronautics R&D subsidies in causing significant lost sales
and significant price suppression, and a threat of displacement and impedance in the 200-300 seat
LCA market.2715 We have further reversed the Panel's finding, in paragraphs 7.1828 and 7.1855 of the
Panel Report, that the remaining subsidies had not been shown to have affected Boeing's prices in a
manner giving rise to serious prejudice, because the Panel reached that finding without having
considered whether those subsidies had a genuine re lationship to, and effects on, those prices, such
that they could be said to complement and supplement the price effects of the tied tax subsidies in the
100-200 seat and 300-400 seat LCA markets. Lastly, we completed the analysis and found that the
effects of the City of Wichita IRBs complemented and supplemented the price effects of the FSC/ETI
subsidies and the State of Washington B&O tax rate reduction, thereby causing serious prejudice, in
the form of significant lost sales, within the meaning of Articles 5(c) and 6.3(c) of the
SCM Agreement, in the 100-200 seat LCA market.

2715The European Union does not request that we complete the analysis and cumulate the technology
effects of the aeronautics R&D subsidie s with the price effects of the B&O tax rate reductions in the 200-300
seat LCA market.
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XI. Findings and Conclusions
1350. For the reasons set out in this Report, the Appellate Body:
(a) with respect to the Panel's prelimin ary ruling regarding the absence of an
information-gathering procedure under Annex V to the SCM Agreement in this
dispute:
(i) finds that the Panel erred, and failed to resolve adequately the legal
issues presented, in denying the various requests made by the
European Communities with respect to an Annex V procedure;
(ii) finds that, in accordance with paragraph 2 of Annex V to the
SCM Agreement, the DSB's initiation of an information-gathering procedure
in a serious prejudice dispute occurs automatically when there is a request for
initiation of such a procedure and the DSB establishes a panel; and
(iii) declines to find that all of the cond itions for the initiation of an Annex V
procedure were fulfilled in this disput e, and makes no finding as to whether
the United States failed to comply with its obligations under the first sentence
of paragraph 1 of Annex V to the SCM Agreement, whether the
European Communities was entitled to present its serious prejudice case
based on the evidence available to it, whether the Panel was entitled to
complete the record as necessary rely ing on best information otherwise
available, or whether the Panel was entitled to draw adverse inferences;
(b) with respect to the Panel's findings regarding financial contribution and benefit:
(i) declares moot and of no legal eff ect the Panel's interpretation of
Article 1.1(a)(1)(i) of the SCM Agreement and its finding, in paragraph 7.970
of the Panel Report, that "transactions properly characterized as purchases of
services" are excluded from the scope of that provision;
(ii) in relation to the measures under the eight NASA R&D programmes at issue:
(A) finds that the payments and access to facilities, equipment, and
employees provided to Boeing pursuant to NASA procurement
contracts constitute direct transfer s of funds and the provision of
goods or services, and therefore financial contributions within the
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meaning of Article 1.1(a)(1)(i) and (iii) of the SCM Agreement, and
finds that there is no basis to address the related claim of the
United States under Article 11 of the DSU;
(B) upholds, albeit for different re asons, the Panel's finding, in
paragraph 7.1040 of the Panel Repor t, that the payments and access
to facilities, equipment, and employees provided under the NASA
procurement contracts conferred a benefit on Boeing within the
meaning of Article 1.1(b) of the SCM Agreement; and
(C) rejects the United States' claim that the Panel erred in estimating the
amount of the subsidy provided to Boeing pursuant to the NASA
contracts and agreements under the eight R&D programmes at issue
and, consequently, upholds the Panel's findings, in paragraphs 7.1081
and 7.1109 of the Panel Report, that the estimated amount of
payments to Boeing through the NASA procurement contracts was
$1.05 billion; and upholds the Pane l's finding, in pa ragraphs 7.1099
and 7.1109 of the Panel Report, that the estimated value of the free
access to facilities, equipment, and employees provided to Boeing
through NASA procurement cont racts and agreements was
$1.55 billion;
(iii) in relation to the measures under the 23 USDOD RDT&E programmes at
issue:
(A) finds that the payments and access to facilities provided to Boeing
pursuant to USDOD assistance instrume nts constitute direct transfers
of funds and the provision of go ods or services, and therefore
financial contributions within th e meaning of Article 1.1(a)(1)(i)
and (iii) of the SCM Agreement;
(B) upholds, albeit for different reasons , the Panel's finding, in the first
sentence of paragraph 7.1187 of the Panel Report, that payments and
access to facilities provided under the USDOD assistance
instruments conferred a benefit on Boeing within the meaning of
Article 1.1(b) of the SCM Agreement; and
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(C) finds that the Panel did not act in consistently with Article 11 of the
DSU when it stated, in paragraph 7. 1205 of the Panel Report, that it
"{did} not consider it credible that less than 1 per cent of the
$45 billion in aeronautics R&D funding that {US}DOD provided to
Boeing over the period 1991-2005 ha d any potential relevance to
LCA"; and
(iv) in relation to the Washington State B&O tax rate reduction:
(A) upholds the Panel's finding, in pa ragraph 7.133 of the Panel Report,
that the reduction in the Washington State B&O tax rate applicable to
commercial aircraft and component manufacturers constitutes the
foregoing of revenue otherwise due, and therefore a financial
contribution, within the meaning of Article 1.1(a)(1)(ii) of the
SCM Agreement;
(c) with respect to the Panel's findings regarding specificity:
(i) in relation to the allocation of patent rights under contracts and agreements
between NASA/USDOD and Boeing, a nd on the assumption that such
allocation is a self-standing subsidy:
(A) finds that such subsidy is not e xplicitly limited to certain enterprises
within the meaning of Article 2.1(a) of the SCM Agreement;
(B) finds that the Panel erred by failing to examine the
European Communities' arguments th at such allocation is "in fact"
specific under Article 2.1(c) of the SCM Agreement and, therefore,
finds that the Panel's overall fi nding under Article 2.1 cannot be
sustained; and
(C) declines to find that such allocati on is specific within the meaning of
Article 2.1(c) of the SCM Agreement; and
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(ii) in relation to the Washington State B&O tax rate reduction and the IRB
subsidies provided by the City of Wichita, Kansas:
(A) upholds the Panel's finding, in pa ragraph 7.205 of the Panel Report,
that the Washington State B&O tax ra te reduction is a subsidy that is
specific within the meaning of Article 2.1(a) of the SCM Agreement;
and
(B) upholds, albeit for different re asons, the Panel's finding, in
paragraph 7.779 of the Panel Report, that the IRB subsidies provided
by the City of Wichita to Boeing and Spirit are specific within the
meaning of Article 2.1(c) of the SCM Agreement; and
(d) with respect to the Panel's findings regarding adverse effects:
(i) in relation to technology effects:
(A) modifies and upholds the Panel's overall conclusion, in
paragraphs 7.1797, 7.1854(a), and 8. 3(a)(i) of the Panel Report, that
the aeronautics R&D subsidies caused serious prejudice to the
interests of the European Comm unities within the meaning of
Article 5(c) and Article 6.3(b) and (c) of the SCM Agreement with
respect to the 200-300 seat LCA market; and in particular:
(1) finds that the Panel did not err by finding, in paragraph
7.1773 of the Panel Report, that "the aeronautics R&D
subsidies contributed in a ge nuine and substantial way to
Boeing's development of technologies for the 787" in 2004;
(2) finds that the Panel did not act inconsistently with Article 11
of the DSU in making, or lack a factual basis for, its
statement in paragraph 7.1772 of the Panel Report that the
"ability to define and manage the complex interaction of
design processes, organization and tools so as to enable the
robust development and manufact uring of an aircraft at
minimum time and cost … is a challenge that Boeing can
meet thanks in large part to NASA and {USDOD} funding";
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(3) finds that the Panel did not e rr in its counterfactual analysis;
(4) upholds the Panel's finding, in paragraphs 7.1797, 7.1854(a),
and 8.3(a)(i) of the Panel Report, that the effect of the
aeronautics R&D subsidies is significant lost sales within the
meaning of Article 6.3(c) of the SCM Agreement with respect
to the 200-300 seat LCA market;
(5) reverses the Panel's finding, in paragraphs 7.1797, 7.1854(a),
and 8.3(a)(i) of the Panel Report, to the extent that it relates
to Kenya, Iceland, and Ethiopia (but not with respect to
Australia), that the effect of the aeronautics R&D subsidies is
a threat of displacement and impedance of EC exports in
third-country markets within the meaning of Article 6.3(b) of
the SCM Agreement with respect to the 200-300 seat LCA
market; and
(6) upholds the Panel's finding, in paragraphs 7.1797, 7.1854(a),
and 8.3(a)(i) of the Panel Report, that the effect of the
aeronautics R&D subsidies is significant price suppression
within the meaning of Article 6.3(c) of the SCM Agreement
with respect to the 200-300 seat LCA market;
(ii) finds, with respect to the Panel's treatment of the effects of the USDOD
RDT&E programmes, that the Panel acte d inconsistently with its obligation
under Article 11 of the DSU to make an objective assessment of the matter
before it in finding, in paragraph 7.170 1 of the Panel Report, that there was
"insufficient evidence on the r ecord that {the 21 USDOD RDT&E
programmes other than ManTech and DUS&T} funded predominantly
assistance instruments, as opposed to proc urement contracts, or a mixture of
assistance instruments and procurement contracts" without having exercised
its authority to seek out relevant info rmation regarding the use of assistance
instruments under all of the USDOD programmes;
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(iii) in relation to price effects:
(A) reverses the Panel's findings, in paragraphs 7.1823, 7.1833,
7.1854(b) and (c), and 8.3(a)(ii) and (iii) of the Panel Report, that the
FSC/ETI subsidies and the B&O ta x rate reductions caused serious
prejudice to the interests of the European Communities within the
meaning of Article 5(c) and Article 6.3(b) and (c) of the
SCM Agreement with respect to the 100-200 seat and 300-400 seat
LCA markets, and finds it unnecessary to rule on the United States'
additional claim under Article 12.7 of the DSU; and
(B) completes the analysis and finds that the FSC/ETI subsidies and the
Washington State B&O tax rate reduction caused serious prejudice
within the meaning of Article 5(c) and Article 6.3(c) of the
SCM Agreement with respect to the 100-200 seat LCA market; and
in particular, finds that, in two sales campaigns, the FSC/ETI
subsidies and the Washington State B&O tax rate reduction caused,
through their effects on Boeing's prices for the 737NG, significant
lost sales within the meaning of Article 6.3(c) of the
SCM Agreement; and
(iv) in relation to the collective assessment of the subsidies and their effects:
(A) finds that the Panel erred in fa iling to consider whether the price
effects of the B&O tax rate reduc tions complement and supplement
the technology effects of the aeronautics R&D subsidies in causing
significant lost sales and significant price suppression, and a threat of
displacement and impedance, in the 200-300 seat LCA market;
(B) reverses the Panel's finding, in paragraphs 7.1828 and 7.1855 of the
Panel Report, that the remaining subsidies had not been shown to
have affected Boeing's prices in a manner giving rise to serious
prejudice with respect to the 100-200 seat and 300-400 seat LCA
markets; and
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(C) completes the analysis and finds that the effects of the City of
Wichita IRBs complemented and s upplemented the price effects of
the FSC/ETI subsidies and the State of Washington B&O tax rate
reduction, thereby causing serious prejudice, in the form of
significant lost sales, within the meaning of Article 5(c) and
Article 6.3(c) of the SCM Agreement, in the 100-200 seat LCA
market.
1351. We realize that, after more than five years of panel proceedings and eleven months of
appellate review, a number of issues remain unresolved in this dispute. Some may consider that this
is not an entirely satisfactory outcome. Our ma ndate under Article 17 of the DSU does not permit us
to engage in fact-finding. However, wherever we ha ve found that there are sufficient factual findings
by the Panel or undisputed facts to complete the an alysis, we have done so with a view to fostering
the prompt settlement of this dispute in accordance with Article 3.3 of the DSU.
1352. The Appellate Body recommends that the DSB request the United States to bring its
measures, found in this Report, and in the Panel Repor t as modified by this Report, to be inconsistent
with the SCM Agreement, into conformity with its obligations under that Agreement. More
specifically, having regard to the recommendation made by the Panel in para graph 8.9 of its Report
and the provisions of Article 7.8 of the SCM Agreement, the Appellate Body recommends that the
United States take appropriate steps to remove th e adverse effects found to have been caused by its
use of subsidies, or to withdraw those subsidies.2716

2716The Appellate Body notes the Panel's finding that, to the extent that the United States has not
already withdrawn the FSC/ETI export subsidies to Boeing, the recommendation made by the panel in
US – FSC under Article 4.7 of the SCM Agreement continues to be "operative". (Panel Report, para. 8.7
(referring to Panel Report, US – FSC (Article 21.5 – EC II), para. 8.2; and to Appellate Body Report, US – FSC
(Article 21.5 – EC II)))
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ANNEX I

4 April 2011
 (11-1662)
 Original: English

Notification of an 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 notification, dated 1 April 2011, from the Delegation of the European Union, is
being circulated to Members.

 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 cer tain legal interpretations devel oped by the Panel in the dispute
 (WT/DS353).
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.
 For the reasons to be further elaborated in its submissions to the Appellate Body, the
European Union appeals, and requests the Appellate Bo dy to reverse, modify or declare moot and of
no legal effect the findings, conclusions and reco mmendations of the Panel, with respect to the
following errors of law and legal interpretations contained in the Panel Report, and where indicated to
complete the analysis
1:
I. Preliminary Issue: SCM Agreement Annex V Procedure

1. The Panel erred in its interp retation and application of the SCM Agreement, Article 7.4 and
Annex V, paragraphs 1, 2 and/or 6 to 9, and/or failed to make an objective assessment pursuant to
Article 11 of the DSU, and/or falsely exercised judicial economy, when it rejected the EU claims and
arguments to the effect that an Annex V proce dure is initiated by negative consensus, that the
conditions for such a procedure were fulfilled in this case, and that non-cooperation by the
United States entailed the consequences in paragraphs 6 to 9 of Annex V of the SCM Agreement.2
The European Union requests the Appellate Body to complete the analysis.

1Pursuant to Rule 20(2)(d)(iii) of the Working Procedures for Appellate Review this Notice of 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.
2Panel Report, paras. 7.19-7.22, particularly 7.22, first and final sentences.
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II. Subsidies

2. The Panel erred in its interpretation and application of Article 2.1 of the SCM Agreement
when it found that the European Union had not de monstrated that any subsidy involved in the
allocation of patent rights under NASA and DOD R& D contracts and agreements with Boeing is
specific within the meaning of Article 2 of the SCM Agreement.
3

3. The Panel erred in its interpre tation of Article 1.1(a)(1) of the SCM Agreement when it found
that transactions properly characterized as purchases of services are excluded from the scope of
Article 1.1(a)(1) of the SCM Agreement.
4

III. Subsidies Contingent/Conditional in Fact upon Export

4. The Panel erred in its interp retation and application of Article 3.1(a) and footnote 4 of the
SCM Agreement, and/or failed to make an objective assessment, including an objective assessment of
the facts, pursuant to Article 11 of the DSU, when it found that the European Union had not
demonstrated that HB 2994 and the B&O tax rate reductions and instances of application are subsidies
contingent/conditional in fact upon export. 5 The European Union requ ests the Appellate Body to
complete the analysis.

IV. Adverse Effects

5. The Panel erred in its interpretation a nd application of Articles 5 and 6.3 of the
SCM Agreement when it found that it was not appropriate to aggregate the effects of the B&O tax
subsidies and the effects of the aeronautics R&D s ubsidies in assessing whether serious prejudice was
caused to the European Union in the 200-300 seat LCA market.
6

6. The Panel erred in its interpretation a nd application of Articles 5 and 6.3 of the
SCM Agreement when it failed to analyse the effects of the US aeronautics R&D subsidies, the
FSC/ETI subsidies, the B&O tax subsidies and the remaining subsidies on an aggregate basis, but
rather assessed the remaining subsidies separately, concluding that they have not affected Boeing's
market behaviour and/or prices in a manner giving rise to serious prejudice to the interests of the
European Union.7

7. The Panel acted inconsistently with the princi ple of due process, the principle that reasonable
inferences can and should be drawn from inst ances of non-cooperation, Article 11 of the DSU and
paragraphs 6 to 9 of Annex V of the SCM Agreement when, without providing the Parties with a
further opportunity to comment, without putting further questions to the United States pursuant to
Article 13 of the DSU or otherwise, and without drawing appropriate inferences from US
non-cooperation, it excluded fro m its assessment of adverse effects the effects of assistance
instruments funded through the RDT&E programmes other than in relation to the ManTech and
DUS&T programmes.
8

3Panel Report, paras. 7.1276-7.1294, particularly para. 7.1294.
5Panel Report, paras. 7.1513-7.1590, particularly paras. 7.1543, 7.1583, 7.1589, 7.1590, and 8.2(b).
6Panel Report, para. 7.1824, final sentence.
7Panel Report, paras. 7.1825-7.1828, particularly para. 7.1828, penultimate and final sentences.
8Panel Report, para. 7.1701, particularly sixth and ninth to eleventh sentences.
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ANNEX II

29 April 2011
 (11-2233)
 Original: English

Notification of an Other Appeal by the United States
under Article 16.4 and Article 17 of the Understanding on Rules
and Procedures Governing the Settlement of Disputes (DSU),
and under Rule 23(1) of the Working Procedures for Appellate Review

 The following notification, dated 28 April 2011, from the Delegation of the United States, is
being circulated to Members.

 Pursuant to Rule 23(1) of the Working Procedures for Appellate Review , the United States
hereby notifies its decision to appeal to the Appella te Body certain issues of law covered in the report
of the Panel in
(WT/DS353/R) ("Panel Report") and certain legal in terpretations developed by the Panel in this
dispute.
1. The United States seeks review by the Appella te Body of the Panel's finding that payments
made by the U.S. National Aeronautics and Space Administration ("NASA") to The Boeing Company
("Boeing") under contracts for the performance of ae ronautics research were a financial contribution.
1
This finding is in error and is based on erroneous findings on issues of law and related legal
interpretations, including an incorrect inte rpretation of Article 1.1(a)(1)(i) of the Agreement on
Subsidies and Countervailing Measures ("SCM Agreement"). The United States also requests the
Appellate Body to find that the Panel failed to ma ke "an objective assessment of the matter before it,
including an objective assessment of the facts of th e case and the applicability of and conformity with
the relevant covered agreements" as required by Article 11 of the Understanding on Rules and
Procedures Governing the Settlement of Disputes ("DSU") by disregarding evidence that research
under the NASA-Boeing contracts was of benefit and use to the U.S. government and unrelated third
parties.2 The United States also requests the Appella te Body to modify the Panel's erroneous
approach to the legal issue of the scope of the term "services".3
2. The United States seeks review by the Appella te Body of the Panel's finding that access to
NASA facilities, equipment, and employees provided to Boeing through research contracts and
agreements at issue constituted a provision of goods and services. This finding is in error and is based
on erroneous findings on issues of law and relate d legal interpretations, including an incorrect

1Panel Report, para. 7.981.
2Panel Report, paras. 7.1027 and 8.3.
3Panel Report, para. 7.978.
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interpretation of Article 1.1(a)(1)(iii) of the SC M Agreement. The United States also requests the
Appellate Body to find that the Panel failed to "set out the findings of fact, the applicability of
relevant provisions and the basic rationale behind any findings and recommendations that it makes" as
required by Article 12.7 of the DSU by providing no explanation for the findings referenced in this
paragraph.
4
3. The United States seeks review by the Appella te Body of the Panel's finding that payments
made by NASA to Boeing under contracts for the performance of aeronautics research and facilities,
equipment, and employees provided to Boeing through research contracts and agreements at issue
conferred a benefit. This finding is in error and is based on err oneous findings on issues of law and
related legal interpretations, in cluding an incorrect interpretation of Article 1.1(b) of the
SCM Agreement.
5
4. The United States seeks review by the Appella te Body of the Panel's finding that payments
made by the U.S. Department of Defense ("Do D") under certain agreemen ts were a financial
contribution. This finding is in error and is b ased on erroneous findings on issues of law and related
legal interpretations, including an incorrect interpretation of Article 1.1(a)(1)(i) of the
SCM Agreement.6
5. The United States seeks review by the Appella te Body of the Panel's finding that access to
DoD facilities provided to Boeing under certain ag reements constitutes a provision of goods or
services. This finding is in error and is based on e rroneous findings on issues of law and related legal
interpretations, including an incorrect interpretation of Article 1.1(a)(1)(iii) of the SCM Agreement.7
6. The United States seeks review by the Appella te Body of the Panel's finding that payments
and access to facilities under certain ag reements provided a benefit. Th is finding is in error and is
based on erroneous findings on issues of law and re lated legal interpretations, including an incorrect
interpretation of Article 1.1(b) of the SCM Agreement.8 The United States also requests the Appellate
Body to find that the Panel failed to make "an obj ective assessment of the matter before it, including
an objective assessment of the f acts of the case and the applicability of and conformity with the
relevant covered agreements" as re quired by Article 11 of the DSU by concluding, without a basis in
the evidence contained in the panel record, it "does not consider it cred ible that less than 1 per cent of
the $45 billion in aeronautics R&D funding that DOD provided to Boeing over the period 1991-2005
had any potential relevance to LCA."
9
7. The United States seeks review by the Appellate Body of the Panel's finding that reductions
by the state of Washington in the rates of busin ess and occupancy tax ("B&O tax") applicable to the
manufacture or making of sales, at retail or wholesale, of commercial aircraft were a financial
contribution. This finding is in error and is b ased on erroneous findings on issues of law and related
legal interpretations, including an incorrect in terpretation of Article 1.1(a)(1)(ii) of the
SCM Agreement.10

4Panel Report, paras. 7.1027 and 8.3.
5Panel Report, paras. 7.1037-7.1040 and 8.3.
6Panel Report, paras. 7.1171 and 8.3.
7Panel Report, paras. 7.1171 and 8.3.
8Panel Report, paras. 7.1185, 7.1187, and 8.3.
9Panel Report, para. 7.1205.
10Panel Report, paras. 7.133, 7.138, and 8.3.
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8. The United States seeks review by the Appellate Body of the Panel's finding that the B&O tax
reductions granted to the aerospace industry by the stat e of Washington was specific. This finding is
in error and is based on erroneous findings on issues of law and related legal interpretations, including
an incorrect interpretation of Article 2.1(a) of the SCM Agreement.
11
9. The United States seeks review by the Appellate Body of the Panel's finding that Boeing and
Spirit Aero Systems were granted a disproportion ately large amount of tax abatements available
through industrial revenue bonds issued by the City of Wichita. This finding is in error and is based
on erroneous findings on issues of law and relate d legal interpretations, including an incorrect
interpretation of Article 2.1(c) of the SCM Agreement.12
10. The United States seeks review by the Appellate Body of the Panel's finding that the effect of
the aeronautics research and development subsidies conferred by NASA and DoD, as described in the
Panel Report, is a threat of displacement or impedance of exports of the European Union ("EU") 13
from third country markets, significant lost sales , and price suppression with respect to the 200-300
seat wide-body large civil aircraft product market.14 In particular, the Panel erroneously found that an
effect of the aeronautics research and development subsidies is:
(a) significant lost sales within the meaning of Article 6.3(c) of the A330 at Qantas,
Ethiopian Airlines, Icelandair, and Kenya Airways15;
(b) displacement or impedance within the m eaning of Article 6.3(b) of the A330 from the
markets of Australia, Ethiopia, Iceland, and Kenya16;
(c) significant lost sales within the meaning of Article 6.3(c) of the Original A350 at
Ethiopian Airlines, Icelandair, and Kenya Airways17;
(d) displacement or impedance within the mean ing of Article 6.3(b) of the Original A350
from the markets of Ethiopia, Iceland, and Kenya18;
(e) significant price suppression with regard to the A330 in the world market 19;
(f) significant price suppression with regard to the Original A350 in the world market 20;
and
(g) significant price suppression with regard to Airbus 200-300 seat large civil aircraft in
the world market.21

11Panel Report, para. 7.205 and 8.3.
12Panel Report, paras. 7.770, 7.779, and 8.3.
13In this proceeding, the United States treats the term "European Union" as synonymous with the term
"European Communities".
14Panel Report, para. 7.1797.
15Panel Report, paras. 7.1787 and 7.1794.
16Panel Report, para. 7.1791.
17Panel Report, paras. 7.1787-7.1788.
18Panel Report, para. 7.1791.
19Panel Report, para. 7.1792.
20Panel Report, para. 7.1792.
21Panel Report, para. 7.1797 and 7.1799.
WT/DS353/AB/R BCI deleted, as indicated [***]
Page 582 HSBI omitted, as indicated [[HSBI]]

These findings are in error and is based on errone ous findings on issues of law and related legal
interpretations, including an incorrect interpreta tion of Articles 5(c) and 6.3(b) and (c) of the
SCM Agreement.
22 The United States also requests the Appellate Body to find that the Panel failed to
make "an objective assessment of the matter before it, including an objective assessment of the facts
of the case and the applicability of and conformity with the relevant covere d agreements" as required
by Article 11 of the DSU by concluding, without a basis in the evidence contained in the panel record,
that"{t}he ability to define and manage the comple x interaction of design processes, organization and
tools so as to enable the robust development and manufacturing of an aircraft at minimum time and
cost … is a challenge that Boeing can meet th anks in large part to NASA and DOD funding and
support".23
11. The United States seeks review by the Appellate Body of the Panel's findings:
(a) that the effect of the Foreign Sales Cor poration/Extraterritorial Income subsidies and
the Washington state B&O tax subsidies in the 100-200 seat large civil aircraft
product market were (i) to significantly suppress Airbus' prices and to cause Airbus to
lose significant sales; and (ii) to displa ce and impede EU exports from third country
markets;
(b) that the effect of the Foreign Sales Corpor ation/Extraterritorial Income subsidies, the
Washington state B&O tax subsidies, and the City of Everett B&O tax subsidies in
the 300-400 seat large civil aircraft product ma rket were (i) to significantly suppress
Airbus' prices and to cause Airbus to lose significant sales; and (ii) to displace and
impede EU exports from third country markets.
These findings are in error and are based on errone ous findings on issues of law and related legal
interpretations, including an incorrect interpreta tion of Articles 5(c) and 6.3(b) and (c) of the
SCM Agreement.
24 The United States also requests the Appellate Body to find that the Panel failed to
"set out the findings of fact, the applicability of re levant provisions and the basic rationale behind any
findings and recommendations that it makes" as required by Article 12.7 of the DSU by issuing
generic findings of displacement or impedance "f rom third country markets" and "significant lost
sales", without stating which country markets or which sales.25

22Panel Report, paras. 7.1773, 7.1780, 7.1785-7.1788, 7.1791-7.1797, and 8.3.
23Panel Report, para. 7.1772.
24Panel Report, paras. 7.1823, 7.1854(b)-(c), and 8.3.
25Panel Report, paras. 7.1817-7.1818 and 7.1822-7.1823.
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ANNEX III

15 April 2011

AB-2011-3

Procedural Ruling

1. On 1 April 2011, the Director of the Appellate Body Secretariat received a letter from the
European Union requesting that the Appellate Body Division hearing this appeal adopt a procedural
ruling on confidentiality and inte rim additional protection for sens itive business information in the
appeal in
(WT/DS353) ("US – Large Civil Aircraft (2
nd complaint)"). In its letter, the European Union referred
to the additional procedures adopt ed by the Appellate Body in European Communities and certain
member States – Measures Affecting Trade in Large Civil Aircraft (WT/DS316) (" EC and certain
member States – Large Civil Aircraft "). The European Union noted that the circumstances of the
present case are very similar to those in EC and certain member Stat es – Large Civil Aircraft , and
requested a procedural ruling in substantially the same terms and for the same reasons. The
European Union argued that, inter alia, disclosure of certain sensitive information on the record of the
Panel proceedings could be "severely prejudicial" to th e originators of the information, that is, to the
large civil aircraft manufacturers, and possibly to the manufacturers' customers and suppliers.

2. On the same day, the Division hearing this appeal invited the United States and the third
participants to comment in writing on the European Union's request; in particular, to comment on the
specific arrangements proposed by the European Union.

3. Pending a final decision on the European Union's request, the Division decided to provide
interim additional protection to all BCI and HSBI tr ansmitted to the Appellate Body in this dispute on
the terms set out below:

(a) Only Appellate Body Members and Appellate Body Secretariat staff assigned to work
on this appeal may have access to the BCI and HSBI contained in the Panel record
pending a final decision on the European Union's request. Appellate Body Members
and Appellate Body Secretariat staff shall not disclose BCI or HSBI, or allow either
to be disclosed, to any person other than those identified in the preceding sentence.
(b) BCI shall be stored in locked cabinets when not in use. When in use by Appellate
Body Members and Appellate Body Secretaria t staff assigned to work on this appeal
all necessary precautions will be taken to protect the confidentiality of the BCI.
(c) All HSBI shall be stored in a combinati on safe in a designated secure location in the
offices of the Appellate Body Secretariat. Appellate Body Members and Appellate
Body Secretariat staff assigned to work on this appeal may view HSBI only in the
designated secure location in the offices of the Appellate Body Secretariat. HSBI
shall not be removed from this location.
(d) Neither BCI nor HSBI shall be transmitted electronically, whether by e-mail,
facsimile, or any other means.
WT/DS353/AB/R BCI deleted, as indicated [***]
Page 584 HSBI omitted, as indicated [[HSBI]]

4. On Wednesday, 6 April 2011, we received written comments from the United States. The
United States expressed its general support for the re quest of the European Union and said it shared
the European Union's view that the Procedural Ruling of the Appellate Body in EC and certain
member States – Large Civil Aircraft would serve as an appropriate basis for a procedural ruling on
additional protection of sensitive information in this appeal, with certain modifications made in the
light of experience under the operation of the procedural ruling in that dispute.

5. On the same day, the European Union i ndicated via e-mail communication that it did not
disagree with the United States' comments regardi ng the modifications that could be made to the
Procedural Ruling adopted by the Appellate Body in EC and certain member States – Large Civil
Aircraft. On Tuesday, 12 April 2011, Australia, Br azil, Canada, China, and Japan submitted
comments in response to the request of the European Union and the comments of the United States.
Australia, Brazil, Canada, China, and Japan generally agreed that the Appellate Body should adopt
BCI/HSBI procedures based on those adopted in EC and certain member States – Large Civil
Aircraft, given the similarities between both appeals. Australia, Brazil, Canada, and Japan also agreed
with the proposal to add a provision concerning amen dments to the lists of persons authorized to
access sensitive information. More particularly , Australia submitted that a specific provision on
amendments to the list of authorized persons will provide additional certainty and clarity. For its part,
Brazil requested that each third participant be able to designate up to eight individuals as "Third
Participant BCI-Approved Persons" instead of the six provided for in the procedures adopted in the
EC and certain member States – Large Civil Aircraft appeal. However, should there be concerns as to
the number of persons attending the oral hearing, Brazil proposed to limit the number of persons
allowed to be present at the hearing to six at one time for each third participant. Canada requested
that any additional procedures for the amendment of the lists of Third Participant BCI-Approved
Persons do not affect third participants' ability to make amendments as long as each third participant
be allowed no more than six individuals on their li st at any given time. Japan requested that the
number of individuals that each third participan t may designate as a Third Participant BCI-Approved
Person be increased from six to seven . In addition, Japan submitted th at the designation of persons in
the initial lists, as well as in amended lists, should be subject to the same standard when it comes to
objections. Thus, it proposed changes to the United States' proposal for the sake of greater clarity
regarding objections to a new d esignation in a third participant's amended list. China expressed no
views with respect to the issues raised in the European Union's request, but requested that the
Appellate Body ensure that China's third participant rights are fully protected.

6. We consider it necessary that a ruling is made by us on the request of the European Union
without delay. Accordingly, we make the followi ng ruling having carefully considered the arguments
made by the European Union in support of its request, and the comments received from the
United States and the third participants. These reasons may be further elaborated in the report of the
Appellate Body in this appeal.

7. We recall that the Appellate Body adopted additional procedures to protect the confidentiality
of sensitive information in the appellate proceedings in EC and certain member States – Large Civil
Aircraft. In this appeal, the participants agree that th e circumstances of the case are very similar, and
the European Union has requested a procedural ru ling in substantially the same terms and for the
same reasons. We further note that the participants and the third participants involved in this case are
the same as those involved in EC and certain member States – Large Civil Aircraft. In the Procedural
Ruling adopted in EC and certain member States – Large Civil Aircraft , the Appellate Body
explained the considerations relevant to a deci sion on whether to provide additional protection to
certain sensitive information. We believe that tho se considerations are also relevant to our evaluation
of the request of the European Union in this app eal and we briefly recall them before addressing the
specific points raised in the request and in the comments of the United States and the third
participants.
BCI deleted, as indicated [***] WT/DS353/AB/R
 HSBI omitted, as indicated [[HSBI]] Page 585

8. The confidentiality requirements set out in the Understanding on Rules and Procedures
Governing the Settlement of Disputes (the "DSU") and in the Rules of Conduct for the Understanding
on Rules and Procedures Governing the Settlement of Disputes
 (the "Rules of Conduct")1 are stated at
a high level of generality that may need to be partic ularized in situations in which the nature of the
information provided requires more detailed arrangements to protect ad equately the confidentiality of
that information. The adoption of such arrangement s falls within the authority of the Appellate Body
to hear the appeal and to regulate its procedures in a manner that ensures that the proceedings are
conducted with fairness and in an orderly manner. To the extent that the arrangements elaborate on
the confidentiality requirements of the DSU, the ad option of such arrangements in an "appropriate
procedure" needs to conform to the requirement in Rule 16(1) of the Working Procedures, that any
additional "appropriate procedure" not be inconsistent with the DS U, the other covered agreements,
and the Working Procedures themselves.

9. The determination of whether particular arrangements are appropriate in a given case
essentially involves a balancing exercise: the risks associated with the disclosure of the information
sought to be protected must be weighed against the degree to which the particular arrangements affect
the rights and duties established in the DSU, the other covered agreements, or the Working
Procedures. Furthermore, a relationshi p of proportionality must exist between the risks associated
with disclosure and the measures adopted. Particip ants requesting particular ized arrangements have
the burden of justifying that such arrangements are necessary in a given case adequately to protect
certain information, taking into account the rights and duties recognized in the DSU, the other covered
agreements, and the Working Procedures . This burden of justification will increase the more the
proposed arrangements affect the exercise by the Appellate Body of its adjudicative duties, the
exercise by the participants of their rights to due process and to have the dispute adjudicated, the
exercise by the third participants of their particip atory rights, and the rights and systemic interests of
the WTO membership at large.

10. Additional confidentiality protection implicates the authority of the Appellate Body, and the
rights and duties of the participants, third par ticipants, and the membership at large. In EC and
certain member States – Large Civil Aircraft , the Appellate Body adopted additional procedures that
it considered struck an appropriate balance between the risks of disclosure of sensitive information, on
the one hand, and the adjudicative authority of th e Appellate Body and the rights and duties of the
participants, third participants and the WTO membership at large. We believe that the balance struck
by the Appellate Body in EC and certain member States – Large Civil Aircraft is also appropriate in
this case. The European Union, the United States, and the third participants concur that the additional
procedures adopted in EC and certain member States – Large Civil Aircraft provide an appropriate
framework and ask that we apply the same practices in this case, with minor modifications.

11. It is not for the parties to determine whether additional protection is calle d for. It is for the
panel, and now the Appellate Body, to do so. Indeed , it is for the adjudicator to decide whether the
information concerned calls for add itional protection. Likewise, it is for the adjudicator to decide
whether and to what extent specific arrangements are necessary, while safeguarding the various rights
and duties that are implicated in any decisi on to adopt additional protection. As in EC and certain
member States – Large Civil Aircraft , we are concerned about the manner in which the parties
designated and the Panel treated the sensitive inform ation. There does not appear to have been a
meaningful effort during the Panel process to set out objective criteria as to the attributes of the
information that may require additional protection so as to guide the determination of whether the
particular information that was submitted deserved additional protection and th e particular degree of
such protection. However, neither participant has appealed the Panel's decisions on the protection of

1The Rules of Conduct, as adopted by the DSB on 3 December 1996 (WT/DSB/RC/1), are incorporated
into the Working Procedures for Appellate Review (WT/AB/WP/5), as Annex II thereto. (See WT/DSB/RC/2,
WT/AB/WP/W/2)
WT/DS353/AB/R BCI deleted, as indicated [***]
Page 586 HSBI omitted, as indicated [[HSBI]]

this information and there are also issues of practi cality to consider. We will therefore proceed on the
basis of how the information was treated before the Panel. Nevertheless, we do not exclude revisiting
whether a particular piece of information meets the objective criteria justifying additional protection,
or the particular degree thereof, should a dispute on the classification of that information arise before
us, or should we consider that we need to refer to that information in our report if this is necessary to
give a sufficient exposition of our reasoning and findings.

12. We further note that there appear to be certain arrangements that the participants have jointly
imposed on themselves and that do not appear to aff ect the Appellate Body's ability to adjudicate the
dispute, the rights of the third participants, or the rights and interests of the WTO membership at
large.
2 This includes, for example, the arrangements allowing each participant to have access to the
most sensitive information provided by the other partic ipant. Such arrangements, in principle, are not
exempt from our scrutiny to verify that they do not impair our adjudicative function and the rights and
interests of third participants and other Members. Nevertheless, at this stage of the proceedings, we
are disinclined to make an exhaustive review of these arrangements given that on their face they do
not seem to have adverse implications for the rights or interests of others that we identified earlier.
Furthermore, none of the third participants has raised concerns in relation to this aspect of the matter.

13. Having reaffirmed the relevant considerations that guide our decision, we turn to the specific
modifications requested by the participants and third participants.

14. The European Union suggests that provision shoul d be made in any procedural ruling in this
dispute for the amendment of lists of persons that are BCI-Approved Persons and HSBI-Approved
Persons. The United States agrees. The United States argues that, in EC and certain member States –
Large Civil Aircraft , the absence of any provision for amendi ng BCI/HSBI lists in the procedural
ruling left unclear whether amendment of BCI/HSB I lists was permissible and, if so, what the
procedures were for amending such lists. Accordi ng to the United States, "additional certainty and
clarity would be of benefit to the participants and th ird participants in this appeal". We have made
certain changes to the additional procedures in order to allow amendments to the lists of
BCI-Approved Persons, HSBI-Approve d Persons, and Third Particip ant BCI-Approved Persons in
this appeal. As with the initial lists, objections will be permitted where the amendment refers to the
designation of outside advisors.

15. The European Union points out that the Procedural Ruling of the Appellate Body in EC and
certain member States – Large Civil Aircraft provides for participants to comment on the inclusion of
BCI and HSBI in the Appellate Body report and states that comments are to be allowed "within a time
period to be specified by the Division". The European Union argues that the appropriate time period
should be a function of the length and content of th e report, and therefore that no further precision is
required at this stage. The European Union adds that it is content to leave this matter to the discretion
of the Appellate Body. The European Union consid ers that a short period of review would suffice,
but indicates that it would be more effec tive if review were conducted in capital. The United States
says it appreciates the Appellate Body's willingness in EC and certain member States – Large Civil
Aircraft to permit the participants to review the Appe llate Body report for inadvertent inclusion of
BCI/HSBI prior to circulation and public release, and requests the Appellate Body to permit such
review in the US – Large Civil Aircraft (2
nd complaint) appeal as well, as it believes "that additional
clarity and certainty with respect to the procedur es for such review would be of benefit to the
participants in terms of planning and allocating resources for the review". The United States further
agrees with the European Union that "the length of time necessary for review will depend on the
length and content of the Appellate Body report, and that review in capital would be preferable if the

2See Additional Working Procedures for DS353 – Procedures for the Protection of Business
Confidential Information and Highly Sensitive Business Information, Panel Report in US – Large Civil Aircraft
(2nd complaint), Annex D.
BCI deleted, as indicated [***] WT/DS353/AB/R
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period for review is short." While recognizing that it may not be possible at this point to foresee the
time that will be required for such review, the United States requests the Appellate Body to indicate in
its procedural ruling that further guidance will be pr ovided to the participants later in the proceedings
in order to allow them time to plan and allocate resources.

16. As in EC and certain member States , we will make every effort to draft our report without
including sensitive information. The additional pr ocedures that we adopt below foresee that the
participants will be provided in advance with a copy of the Appellate Body report intended for
circulation to WTO Members and will have an oppor tunity to request the removal of any sensitive
information that is inadvertently included in the repor t. If we were to consider it necessary to include
sensitive information in the reasoning in our report, the participants will be given an opportunity to
comment. We reiterate that the participants will have a timely opportunity to comment as to the
inclusion of any sensitive information in the report; we will provide further guidance at a later point
of these proceedings as to the details of such a procedure.

17. The European Union and the United States recal l that the Appellate Body provided in its
Procedural Ruling in EC and certain member States – Large Civil Aircraft that it would "indefinitely"
retain BCI and HSBI on the record of the appeal. Although the participants opposed such measures in
that case, they consider that the Appellate B ody should treat information in the two disputes
identically. We have taken note of this comment by the participants but consider that retaining one
hard copy and one electronic version of all docum ents containing BCI and HSBI as part of the
appellate record is useful in the eventuality of a compliance proceeding under Article 21.5 of the
DSU. The Appellate Body is an adjudicative body of record and thus it is imperative that a copy of
the record be kept as part of the adjudication.

18. Brazil and Japan have requested a small increase in the maximum number of Third
Participant BCI-Approved Persons that may be designa ted by each third participant. We recognize
that the limitation on the number of representatives that may have access to sensitive information can
make it difficult for third participants to partic ipate fully in these proceed ings. Thus, we have
increased the maximum number of persons that may be designated by each third participant to eight,
and we do not believe that this small adjustment wi ll increase the risk of unauthorized disclosure of
sensitive information.

19. For the reasons set out above, we have decided to provide additional confidentiality
protection on the terms set out below. Accordingl y, we adopt the following additional procedures for
the purposes of this appeal:

Additional Procedures to Protect Sensitive Information

General

(i) These additional procedures shall apply to information that was treated as business
confidential information ("BCI") or as highly sensitive business information ("HSBI") in the
Panel proceedings and that is contained in docum ents or electronic media that are part of the
Panel record. The additional procedures apply to written and oral submissions made in the
appellate proceedings only to the extent that th ey incorporate information that was treated as
BCI or HSBI in the Panel proceedings.
(ii) To the extent that information on the record is submitted to the Appellate Body in a form that
differs from the way in which it was presented to the Panel, and there is a disagreement
between the participants on the proper treatment of this information, the Appellate Body shall
decide after hearing their views.
WT/DS353/AB/R BCI deleted, as indicated [***]
Page 588 HSBI omitted, as indicated [[HSBI]]

(iii) Each participant may at any time request that information that it has submitted and that was
previously treated as BCI or HSBI no longer be treated as such.
(iv) The participants and third participants shall f ile their written submissions with the Appellate
Body Secretariat in accordance with the Working Schedule drawn up by the Division for this
appeal. Where a written submission contains BCI or HSBI, a redacted version of the
submission (that is, a version w ithout BCI and HSBI) shall be filed simultaneously with the
Appellate Body Secretariat. The redacted vers ion shall be sufficient to permit a reasonable
understanding of its substance. The Division may take appropriate action to ensure that this
obligation is satisfied. The participants and thir d participants shall also provide the Appellate
Body Secretariat with an electronic version of all submissions, including the redacted
versions. The transmittal of participants' submissions to each other and to the third
participants, and the transmittal of third participants' submissions to the participants and to the
other third participants, are further regulated below.
Appellate Body Members and Appellate Body Secretariat Staff

(v) Only Appellate Body Members, and staff of th e Appellate Body Secretariat who have been
assigned by the Appellate Body to work on this appeal, may have access to the BCI and HSBI
on the Panel record and in the written and oral submissions made in these appellate
proceedings. Appellate Body Members and assigned Appellate Body Secretariat staff shall
not disclose BCI or HSBI, or allow either to be disclosed, to any person other than those
identified in the preceding sentence or to appr oved persons of the pa rticipants and third
participants in the context of the oral h earings. Appellate Body Members and assigned
Appellate Body Secretariat staff are covered by the Rules of Conduct. As provided for in the
Rules of Conduct, evidence of breach of these Rules may be submitted to the Appellate Body,
which will take appropriate action.
(vi) BCI shall be stored in locked cabinets when not in use.
(vii) Appellate Body Members who are serving on the Division hearing this appeal may maintain a
copy of all relevant documents containing BCI at their places of residence outside Geneva.
Appellate Body Members who are not serving on the Division may maintain at their places of
residence outside Geneva a copy of the BCI ve rsion of the Panel Report, a copy of the BCI
version of the written submissions made in thes e appellate proceedings, a BCI version of the
transcripts of any oral hearings, any inte rnal documents containing BCI, and, where
necessary, selected BCI exhibits from the Pa nel record. The documents and materials
containing BCI kept by Appellate Body Members at their places of residence outside of
Geneva shall be stored in locked cabinets when not in use. Documents and materials
containing BCI shall only be sent to Appellate Body Members by secure e-mail or courier.
(viii) Participants shall provide printed copies of th eir submissions and other documents containing
BCI that are intended for use by Appellate Body Members or assigned Appellate Body
Secretariat staff on coloured paper and indivi dually watermarked with "Appellate Body" and
numbered consecutively ("Appellate Body No. 1", "Appellate Body No. 2", etc.).
(ix) All HSBI shall be stored in a combination safe in a designated secure location on the premises
of the Appellate Body Secretariat. Any com puter in that room shall be a stand-alone
computer, that is, not connected to a netw ork. Appellate Body Members and assigned
Appellate Body Secretariat staff may view HSBI only in the designated secure location
referred to above. HSBI shall not be remove d from this location, except as provided for in
paragraph (x), or in the form of handwritten notes that may be used only on the Appellate
Body Secretariat's premises and shall be destroyed once no longer in use.
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(x) Subject to appropriate precautions, BCI and HSBI may be taken outside of the premises of the
Appellate Body Secretariat, in hard copy and electronic form, for purposes of any oral
hearings that may be held in connection with this appeal.
(xi) Except as provided for in paragraph (xii), all doc uments and electronic files containing BCI
and HSBI shall be destroyed or deleted when the Appellate Body report in this dispute has
been adopted by the DSB.
(xii) The Appellate Body shall retain one hard copy and one electronic version of all documents
containing BCI and HSBI as part of the appella te record. Documents and electronic media
containing BCI shall be kept in sealed boxes within locked cabinets on the Appellate Body
Secretariat's premises. Documents and electronic media containing HSBI shall be placed in a
sealed container that will be kept in a combination safe on the premises referred to above.
Appellate Body Report

(xiii) The Division will make every effort to draft an Appellate Body report that does not disclose
BCI or HSBI by limiting itself to making statements or drawing conclusions that are based on
BCI and HSBI. A copy of the Appellate Body report intended for circulation to WTO
Members will be provided in advance to the par ticipants, at a date to be specified by the
Division. Participants will be provided with an opportunity to request the removal of any BCI
or HSBI that is inadvertently included in the report. The Division will also indicate to the
participants if it has found it necessary to incl ude in the Appellate Body report information
that was treated by the Panel as BCI or HS BI and will provide participants with an
opportunity to comment. Comments on the inclusion of information previously treated as
BCI or HSBI and requests for removal of BCI or HSBI inadvertently included in the report
shall be filed with the Appellate Body Secretar iat within a time period to be specified by the
Division. No other comments or submissions sh all be accepted. In coming to a decision on
the need to include BCI or HSBI to ensure that the final report is understandable, the Division
will strike an appropriate balance between th e rights of the WTO membership at large to
obtain a report that gives a sufficient expos ition of its reasoning and findings, on the one
hand, and the legitimate concerns of the partic ipants to protect sensitive information, on the
other.
Participants

(xiv) The participants shall provide a list of persons that are "BCI-Approved Persons" and that are
"HSBI-Approved Persons". These lists shall be provided to the Appellate Body Secretariat by
12 noon on Tuesday, 19 April 2011, and shall be ser ved on the other participant and the third
participants. Any objections to the designation of an outside advisor as a BCI-Approved
Person or HSBI-Approved Person mu st be filed with the Appellate Body Secretariat and
served on the other participant by Wednesday, 20 April 2011, 5 p.m. Participants may submit
amendments to their lists of BCI-Approved Pers ons or HSBI-Approved Persons by filing an
amended list with the Appellate Body Secretar iat and serving it on the other participant and
the third participants. A participant may object to the designation on the amended list of an
outside advisor by another participant. Any obj ections must be filed with the Appellate Body
Secretariat within two days and simultaneously served on the other participant and the third
participants. The Division will reject a request for designation of an outside advisor as a BCI-
Approved Person or an HSBI-A pproved Person only upon a show ing of compelling reasons,
having regard to, inter alia, the relevant principles reflected in the Rules of Conduct and the
illustrative list in Annex 2 thereto. BCI-Approved Persons and HSBI-Approved Persons shall
not disclose BCI or HSBI, or allow either to be disclosed, except to the Appellate Body,
WT/DS353/AB/R BCI deleted, as indicated [***]
Page 590 HSBI omitted, as indicated [[HSBI]]

assigned Appellate Body Secretariat staff, other BCI-Approved Persons and HSBI-Approved
Persons, and Third Participant BCI-Approved Persons.
(xv) Any participant referring in its written submissions to any BCI or HSBI shall clearly identify
the information as such in those submissions . Submissions containing BCI shall be
transmitted only to BCI-Approved Persons. If th e submissions contain HSBI, the HSBI shall
be included in an appendix. In that case, the version of the submission that includes the HSBI
appendix shall be transmitted only to HSBI-A pproved Persons. The HSBI appendix shall not
be transmitted via e-mail. Each participant shall simultaneously provide a redacted version of
its submissions to the other participant, which shall have two days to object to the inclusion of
any BCI. If there are objections, the Division shall resolve the matter, and transmit the
correctly redacted version to the other par ticipant and the third participants, unless the
participant making the submission agrees to rem ove the information that was subject to the
objection. If there are no objections, the redact ed version shall be transmitted the following
day to the third participants.
Third Participants

(xvi) Third participants may designate up to eight individuals as "Third Participant BCI-Approved
Persons". For this purpose, each third partic ipant shall provide a list of Third Participant
BCI-Approved Persons to the Appellate Body S ecretariat by 12 noon, on Tuesday, 19 April
2011. A copy of the list of Third Participan t BCI-Approved Persons shall be served on each
participant and on each other third participant. The participants may object to the designation
of an outside advisor as a Third Participant BC I-Approved Person. Objections must be filed
with the Appellate Body Secretariat by Wednesd ay, 20 April 2011, 5 p.m. Third participants
may submit amendments to their lists of BCI-Approved Persons or HSBI-Approved Persons
by filing an amended list to the Appellate Body Secretariat and serving it on the participants
and the other third participants. A participan t may object to the designation in an amended
list of an outside advisor by a third particip ant. Any objections must be filed with the
Appellate Body Secretariat within two da ys and simultaneously served on the other
participant and the third participants. The Division will reject the designation of an outside
advisor as a Third Participant BCI-Approved Person only upon a showing of compelling
reasons, having regard to, inter alia, the relevant principles in the Rules of Conduct and the
illustrative list in Annex 2 thereto. Third Participants BCI-Approved Persons shall not
disclose BCI, or allow it to be disclosed, except to the Appellate Body, assigned Appellate
Body Secretariat staff, BCI-Approved Persons , and other Third Participant BCI-Approved
Persons.
(xvii) The BCI version of all participants' submissions shall be transmitted to the third participants
by providing a copy to the Appellate Body Secretariat for placement in the designated reading
room located on the premises of the WTO. Th ird Participant BCI-Approved Persons shall be
allowed to view in the designated reading room the BCI version of the Panel Report and the
BCI version of the submissions filed in these appellate proceedings. Third Participant BCI-
Approved Persons shall not bring into that room any electronic recording or transmitting
devices, nor shall they remove copies of the BCI version of the Panel Report or the BCI
version of the submissions from that room. Upon request, each third participant shall be
provided with one copy of the Panel Report as circulated to WTO Members and of the
redacted version of the submissions for use in the reading room. Third Participant BCI-
Approved Persons may take handw ritten notes on the provided copies of the circulated Panel
Report and redacted version of the submissions and they may take these copies with them.
These documents shall be printed on coloured wa termarked paper; shall bear the names of
the Third Participant BCI-Approved Persons; state that "This document is not to be copied";
and the cover page of each of the documents sh all state that any handwritten BCI added to the
BCI deleted, as indicated [***] WT/DS353/AB/R
 HSBI omitted, as indicated [[HSBI]] Page 591

document shall only be discussed or shared with other Third Participant BCI-Approved
Persons. The content of any handwritten notes sha ll not be incorporated, electronically or in
handwritten form, into any other copy of the Panel Report or of the submissions. These
documents and any other handwritten notes ta ken by the Third Participant BCI-Approved
Persons in the reading room shall be locked in a secure container when not in use. These
documents and handwritten notes must be returned to the Appellate Body Secretariat after the
final oral hearing held in this appeal.
(xviii) Each Third Participant BCI-Approved Person vi ewing the BCI version of the Panel Report
and submissions in the designated reading room shall complete and sign a log. The Appellate
Body Secretariat shall keep such log as part of the record of the appeal.
(xix) If a third participant wishes to refer in its th ird participant's submission to any BCI, it shall
clearly identify such information, and the subm ission shall be transmitted to the participants,
and to the other third participants by providing a copy to the Appellate Body Secretariat for
placement in the designated reading room referre d to in paragraph (xvii) above. The third
participant shall also simultaneously provide the participants with a redacted version of their
submissions. The participants shall have two days to object to the inclusion of any BCI in the
redacted version of the third participant's su bmission. If there are objections, the Division
shall resolve the matter, and transmit the correctly redacted version to the participants and the
other third participants, unless the third par ticipant making the submission agrees to remove
the information that was subject to the objecti on. If there are no objections, the redacted
submission shall be transmitted the following da y to the participants and the other third
participants.
Oral Hearing

(xx) Appropriate procedures shall be adopted to protect BCI and HSBI from unauthorized
disclosure at any oral hearing held in this appeal.
WT/DS353/AB/R BCI deleted, as indicated [***]
Page 592 HSBI omitted, as indicated [[HSBI]]

ANNEX IV

26 July 2011

AB-2011-3

Procedural Ruling

Introduction

1. On 1 April 2011, the Director of the Appellate Body Secretariat received a letter from the
European Union requesting that the Appellate Body Division hearing this appeal adopt a procedural
ruling on confidentiality and inte rim additional protection for sens itive business information in the
above appeal. After receiving comments on the Eu ropean Union's request from the United States and
the third participants, the Division issued a Pro cedural Ruling on 15 Apr il 2011 adopting additional
procedures to protect sensitive information on the r ecord of this appeal. Paragraph 19(xx) of the
Procedural Ruling states that appropriate procedures shall be adopted to protect sensitive information
from unauthorized disclosure during any oral hearing in this appeal.

2. On 11 July 2011, the Division received a jo int request from the European Union and the
United States proposing additional procedures to protect Business Confidential Information (BCI) and
Highly Sensitive Business Information (HSBI) during the two sessions of the oral hearing in this
appeal and to open both sessions of the oral hearing to the public.

3. Specifically, the participants propose that, w ith respect to the oral hearing, the Appellate
Body adopt the same additional procedures that it adopted in European Communities and Certain
Member States – Measures Affecting Trade in Large Civil Aircraft ("EC and certain member States –
Large Civil Aircraft")
1, pursuant to the Procedural Ruling date d 27 October 2010 in that appeal. The
participants stated that their reasons for this re quest and proposal are substantially the same as the
reasons that were given in their joint letter of 5 October 2010 requesting such additional procedures in
the appeal in EC and certain member States – Large Civil Aircraft, which are summarized as follows.

 Only BCI-Approved Persons are authorized to access BCI, and both participants and third
participants have designated a limited number of persons as BCI-approved. Only
HSBI-Approved Persons are authorized to access HS BI, and the participants have designated
a limited number of persons as HSBI-approved. Third participants may not designate
HSBI-approved persons.
 As regards BCI that might be uttered during a hearing, the participants recall that each of
them is precluded from disclosing informa tion designated as BCI by the other to
non-BCI-approved persons. Similarly, as rega rds HSBI that might be uttered during a
hearing, the participants recall that each of them is precluded from disclosing information
designated as HSBI by the other to non-HSBI-a pproved persons. Third participants are
precluded from disclosing BCI to non-BCI-approved persons.
 Accordingly, the participants consider that, as provided for in the Procedural Ruling dated
15 April 2011, the Division can and should adopt a further Procedural Ruling pursuant to

1WT/DS316/AB/R, adopted 1 June 2011. The Additiona l Procedures with respect to the oral hearing
are set out in Annex IV to that report.
BCI deleted, as indicated [***] WT/DS353/AB/R
 HSBI omitted, as indicated [[HSBI]] Page 593

Rule 16(1) of the Working Procedures for Appellate Review (the " Working Procedures ")
2
regulating these matters for both sessions of the or al hearing. This will involve striking a
balance between the systemic interest in pr otecting sensitive information and the systemic
interest in transparency similar to that struck in the Procedural Ruling dated 15 April 2011 in
this case and the Procedural Ruling dated 27 October 2010 in EC and certain member States
– Large Civil Aircraft. The participants recall, in this regard, that the Procedural Ruling dated
15 April 2011 records the fact that the third pa rticipants are content with the access provided
to them, and have not objected to not being given access to HSBI.
 According to the participants, there appear to be two options with respect to HSBI. The first
option is that if, during the hearing, one of the participants or a Member of the Division
wishes to refer to HSBI, the hearing would be temporarily suspended and third participants,
as well as members of the participants' delega tions who are not HSBI-approved, would be
asked to leave the room temporarily. The second option is that the hearing be divided into
two parts. The first part would deal with a ll matters to the greatest extent possible, and
without uttering HSBI. The second part would complete the discussion, to the extent
necessary, by addressing HSBI. While acknowledging that neither of these options is ideal in
all respects, the participants, on balance, propo se the second option. The participants believe
that this would limit unnecessary disruption during th e hearing. The participants also believe
that careful conduct of the first part of the hearing (such as only participants and the Members
of the Division having a document before them and discussing it without uttering HSBI)
could obviate the need for a second HSBI part of the hearing. In the event that a second
closed part of the hearing would be necessary, it could be organized at the end of each day.
The participants note that the Appellate Body followed this second approach during the
proceedings in EC and certain member States – Large Civil Aircraft , and that it appears to
have been effective.
 The participants further suggest that the A ppellate Body establish rules regarding a public
segment of the hearing. The participants r ecall that, to date, a participant's or third
participant's oral statements and oral answers to questions have been made in public segment
only if the participant or third participant so ag reed. In the absence of such agreement, it has
proved operationally possible and effective to divide the hearing into an open segment
(for Members who wish to make their statements public) and a closed segment (for Members
who do not wish to make their statements public). The European Union and the United States
are of the view that as much of the hearing as possible should be open to the public.
However, they recognize that, in the light of the volume of BCI in this dispute, and its
centrality to many of the issues, it may not be feasible to separate the Appellate Body
questions and participant answers into public and BCI segments in the same way as the oral
statements. For this reason, the European Un ion and the United States propose that the same
approach be adopted in this appeal as was adopted in the appeal in EC and certain member
States – Large Civil Aircraft.
 Thus, with regard to the public segment of th e hearing, the participants propose that the
participants and third participants (subject to th eir agreement) deliver opening statements that
do not contain BCI or HSBI. These would be videotaped, reviewed if necessary by the
participants for confirmation that neither BCI nor HSBI has been uttered (with any
disagreements to be settled by the Appellate B ody), and then transmitted to the public at a
later date. The participants also propose that su ch an approach could be used for the closing
statements, or at least that part of them that does not refer to BCI or HSBI.

2WT/AB/WP/6, 16 August 2010.
WT/DS353/AB/R BCI deleted, as indicated [***]
Page 594 HSBI omitted, as indicated [[HSBI]]

4. On 12 July 2011, the Division invited the third participants to comment, if they so wished, on
the European Union's and the United States' request for public observation of the oral hearing and on
the specific modalities proposed.

5. Canada and China submitted comments on the participants' request. Canada expresses its
agreement with the joint proposal by the European Union and the United States th at the Appellate
Body adopt the same additional procedure s that it adopted in EC and certain member States – Large
Civil Aircraft. China also expresses general agreement with this proposal, and states its view that,
under Article 17.10 of the DSU, participants and third participants in an appeal each have the right to
determine whether or not to allow their statements at the oral hearing to be open to public observation.
China encourages the Appellate Body to follow the practice in EC and certain member States – Large
Civil Aircraft that allowed each third participant to re quest confidential treatment for its oral
statement. No comments were received from Australia, Brazil, Japan, or Korea.

6. The request of the European Union and the United States raises issues similar to those that
were before the Appellate Body in EC and certain member States – Large Civil Aircraft . In this
appeal, we have already adopted additional proce dures for the protection of sensitive information.
Given the amount of information that was treated as BCI or HSBI during the Panel proceedings, we
believe that it would be difficult to conduct the oral hearing in these appellate proceedings without
referring to sensitive information. In carrying out our adjudicative function, it will be necessary to
conduct the oral hearing in a manner that allows us to explore issues that involve sensitive
information, while ensuring that this sensitive info rmation is not improperly disclosed. Accordingly,
and for reasons similar to those espoused by the Appellate Body in EC and certain member States –
Large Civil Aircraft , we have decided to provide additiona l confidentiality protection for certain
sensitive information during the oral hearing to be held in this appeal on the terms set out below. We
also authorize the public observation of certain se gments of the oral hearing as further indicated
below.

Request for Additional Procedures to Protect Sensitive Information during the Oral Hearing

7. We are of the view that the Additional Procedures adopted in EC and certain member States –
Large Civil Aircraft provided adequate protection for sens itive information, while allowing the
Appellate Body to perform its adjudicative function and the third participants to exercise their rights
under the DSU and the Working Procedures. The participants share this view and expressly request
us to adopt similar procedures in this appeal. This is also the view of those third participants who
submitted comments on the participants' request. Thus, as in EC and certain member States – Large
Civil Aircraft , we consider it appropriate to adopt the following arrangements to protect sensitive
information during the oral hearing:

 The participants have indicated that they intend to abstain from mentioning BCI or HSBI in
their opening statements, and suggest that thir d participants may also agree not to mention
BCI in their opening statements. No third par ticipant has indicated an intention to refer to
BCI in its opening statement. In such circum stances, it is unlikely that sensitive information
will be uttered in this segment of the oral hearing.
 Accordingly, all members of the participants' and third participants' delegations may attend
this initial segment of the oral hearing.
 Similarly, to the extent that it is confirmed by the participants—and also the third participants
indicate—that no sensitive information will be referred to in the closing statements, all
members of the participants' and third particip ants' delegations may attend this final segment
of the oral hearing.
BCI deleted, as indicated [***] WT/DS353/AB/R
 HSBI omitted, as indicated [[HSBI]] Page 595

 In accordance with paragraphs 19(xiv) and 19(xvi) of our Procedural Ruling of 15 April 2011,
the participants and the third participants have each designated BCI-Approved Persons, and
the participants have designated HSBI-Approved Persons.
 Only members of the participants' and thir d participants' delega tions who have been
authorized to have access to BCI are invited to attend the segments of the oral hearing in
which BCI may be discussed.
 Only HSBI-Approved Persons of the participants are invited to attend segments of the oral
hearing in which HSBI will be discussed.
 Third participants will have access to the BCI vers ion of the submissions filed in this appeal
and the BCI version of the Panel Report in the hearing room during the BCI segments. Third
participants will be provided with a single copy of these documents, individually
watermarked. Access to these documents will be limited to Third Participant BCI-Approved
Persons. These documents may not be removed from the hearing room.
8. The participants have propo sed two options for addressing HSBI during the oral hearings.
The first involves interrupting the BCI segments of th e oral hearing each time reference will be made
to HSBI, the second option involves having dedicated segments to discuss HSBI. We believe it is
important that any additional procedures to protect sensitive information shoul d interfere as little as
possible with the regular conduct of the oral hearing and allow the Division to structure its
questioning by topic. Therefore, to the extent possible, we prefer to focus on HSBI in dedicated
segments in order to avoid interrupting the regular flow of the oral hearing. It may be, however, that
the full exploration of an issue will not allow fo r deferral of the discussion of HSBI. If such
circumstances arise, we may decide to interrupt th e BCI segment of the oral hearing to discuss HSBI
with the persons approved to have access to it.

Request for Public Observation of the Oral Hearing

9. Turning to the participants' request to authorize observation by the public of the opening
segment of the oral hearing, we recall that request s to allow public observation of the oral hearing
have been made, and have been author ized, in seven appellate proceedings. 3 In its rulings, the
Appellate Body has held that it has the power to au thorize such requests by the participants, provided
that this does not affect the confidentiality in the relationship between the third participants and the
Appellate Body, or impair the integrity of the appellate process.

10. The Appellate Body has also noted that public observation in previous cases operated
smoothly, and that the rights of third participants w ho did not wish to have their oral statements made
subject to public observation were fully protected.

3These proceedings are: United States – Continued Suspension of Obligations in the EC – Hormones
Dispute (WT/DS320AB/R) and Canada – Continued Suspension of Obligations in the EC – Hormones Dispute
(WT/DS321/AB/R); European Communities – Regime for the Importation, Sale and Distribution of Bananas –
Second Recourse to Article 21.5 of the DSU by Ecuador (WT/DS27/AB/RW2/ECU) and
European Communities – Regime for the Importation, Sale and Distribution of Bananas – Recourse to
Article 21.5 of the DSU by the United States (WT/DS27/AB/RW/USA); United States – Continued Existence
and Application of Zeroing Methodology (WT/DS350/AB/R); United States – Laws, Regulations and
Methodology for Calculating Dumping Margins ("Zeroing") – Recourse to Article 21.5 of the DSU by the
European Communities (WT/DS294/AB/RW); United States – Measures Relating to Zeroing and Sunset
Reviews – Recourse to Article 21.5 of the DSU by Japan (WT/DS322/AB/RW); Australia – Measures Affecting
the Importation of Apples from New Zealand (WT/DS367/AB/R); and European Communities and Certain
Member States – Measures Affecting Trade in Large Civil Aircraft (WT/DS316/AB/R).
WT/DS353/AB/R BCI deleted, as indicated [***]
Page 596 HSBI omitted, as indicated [[HSBI]]

11. Particular issues arise in this appeal, as they did in EC and certain member States – Large
Civil Aircraft, in relation to the public observation of the or al hearing because of the need to avoid the
disclosure of BCI and HSBI. We believe that th e Additional Procedures adopted by the Appellate
Body in EC and certain member States – Large Civil Aircraft provide an appropriate means to allow
public observation of the oral hearing, while pr otecting sensitive information and safeguarding the
Appellate Body's adjudicative function and the interests of the third participants.

12. Therefore, and subject to the qualificati on in paragraph 13 below, we authorize public
observation of only the opening statements. We will authorize public observation of the closing
statements upon indication from the participants and third participants that their closing statements
will not include any reference to sensitive information.

13. We authorize observation by the public of the opening statements of only those third
participants who have not indicat ed any objection to such observation. The confidentiality of the
closing statements by third participants who do no t wish to make their statements public will be
preserved.

14. In this appeal, the participants have proposed that public observation take place by making a
videotape of the relevant segments of the oral hearing and showing it to the public after the
participants have had an opportunity to review th e videotape for any inadvertent utterance of sensitive
information. A similar procedure was used in EC and certain member States – Large Civil Aircraft .
We agree with the participants that deferred transm ission to the public by videotape will minimize the
risk of inadvertent disclosure of sensitive information and we will give the participants an opportunity
to request review of the videotape for this purpos e before it is shown to the public. In case of
disagreement between the participants regarding the sensitive nature of certain information referred to
during the opening or closing statements, such information will not be subject to public observation.

15. For the reasons set out above, we adopt th e following additional procedures for the purposes
of this appeal:

Additional Procedures on the Conduct of the Oral Hearing

Protection of Sensitive Information during the Oral Hearing

(i) These additional procedures shall apply to all sessions of the oral hearing to be held in this
appeal and, in particular, to any information that is referred to in the oral hearing that was
treated as business confidential information ("BCI") or as highly sensitive business
information ("HSBI") in the Panel proceedings and that is contained in documents or
electronic media that are part of the Panel r ecord. These additional procedures complement
the additional procedures for the protection of sensitive information that we adopted in our
Procedural Ruling of 15 April 2011.
(ii) To the extent that information on the record is presented at the oral hearing in a form that
differs from the way in which it was presented to the Panel, and there is a disagreement
between the participants on the proper treatment of the degree of confidentiality of this
information, the Appellate Body shall decide the matter after hearing the views of the
participants.
(iii) Appellate Body Members, Secretariat staff assi gned by the Appellate Body to work on this
appeal, and interpreters and court reporters reta ined for this appeal may be present throughout
the oral hearing, including segments dedicated to the discussion of BCI and HSBI.
BCI deleted, as indicated [***] WT/DS353/AB/R
 HSBI omitted, as indicated [[HSBI]] Page 597

(iv) In addition to the persons indicated in subpara graph (iii) above, BCI shall be disclosed during
the oral hearing only to BCI-Approved Persons of the participants and Third Participant
BCI-Approved Persons.
4
(v) In addition to the persons indicated in subpara graph (iii) above, HSBI shall be disclosed
during the oral hearing only to HSBI-Approved Persons of the participants.5
(vi) The oral hearing segment dedicated to the openi ng statements of the participants and third
participants shall be open to all members of the delegations of participants and third
participants. The participants and third par ticipants shall abstain from referring to BCI or
HSBI in their opening statements.
(vii) In order to protect BCI from unauthorized disclosure, only BCI-Approved Persons of the
participants and Third Participant BCI-Approved Persons are invited to attend the segments
dedicated to questions and answers.
(viii) Segments of the oral hearing may be reser ved for questioning on issues that may
require reference to HSBI. In order to pr otect HSBI from unauthorized disclosure, only
HSBI-Approved Persons of the participants are invited to attend these segments.
(ix) To the extent that any participant or third pa rticipant indicates that it will make reference to
BCI in its closing statement, only BCI-Approve d Persons of the participants and Third
Participant BCI-Approved Persons w ill be invited to attend the closing segment of the oral
hearing.
(x) If necessary, the Division hearing this appeal may interrupt a BCI segment and hold a
segment dedicated to HSBI.
(xi) During the segments of the oral hearing that address BCI, the BCI version of the Panel Report
and the BCI version of the submissions filed in this appeal, which have been printed and
individually watermarked pursuant to paragr aph 19(xvii) of our Procedural Ruling of
15 April 2011, shall be made available to each third participant. Only Third Participant
BCI-Approved Persons shall be allowed to consult these documents. The documents shall not
be removed from the hearing room and shall be returned to the Appellate Body Secretariat at
the end of each segment addressing BCI.
(xii) The parts of the transcript of the oral hearing containing BCI and HSBI shall become part of
the appellate record and shall be kept in accordance with the additional procedures for the
protection of sensitive information set out in s ubparagraphs 19(vi), (vii), and (ix)-(xii) of our
Procedural Ruling of 15 April 2011.
Public Observation of the Oral Hearing

(xiii) The first segment of the oral hearing, which will consist of the opening statements by the
participants and third participants, shall be open to public observation, subject to
subparagraph (xv) below. The fi nal segment of the oral hearing, which will be reserved for
closing statements, shall be open to public obser vation to the extent that the participants and

4BCI-Approved Persons and Third Participant BCI-Approved Persons are those persons designated as
such under paragraphs 19(xiv) and 19(xvi) of our Procedural Ruling of 15 April 2011.
5HSBI-Approved Persons are those persons designated as such under paragraph 19(xiv) of our
Procedural Ruling of 15 April 2011.
WT/DS353/AB/R BCI deleted, as indicated [***]
Page 598 HSBI omitted, as indicated [[HSBI]]

third participants indicate that their closi ng statements will not refer to any sensitive
information and subject to subparagraph (xv) below.
(xiv) The segments open to public observation shall be videotaped. Within two days of the
completion of each session of the oral hearing, either participant may request to review the
videotapes to verify that BCI or HSBI has not been included inadvertently or otherwise.
Upon such request, staff of the Appellate B ody Secretariat shall be present while the
participants review the videotape. If the vide otape contains BCI or HSBI, a redacted version
of the videotape shall be produced in which the BCI or HSBI has been deleted. In case of
disagreement between the participants regardi ng the sensitive nature of certain information
referred to during the opening or closing statements, the relevant segment(s) will not be
subject to public observation.
(xv) The opening and closing statements of thir d participants wishing to maintain the
confidentiality of their submissions will not be subject to public observation. Any third
participant that has not already done so ma y request that its oral statements remain
confidential and not be subject to public observati on. Such requests must be received by the
Appellate Body Secretariat no later than 5 p.m. Geneva time on Wednesday, 10 August 2011.
(xvi) Notice of the oral hearing will be provided to the general public through the WTO website.
Members of the general public wishing to ob serve the oral hearing will be required to
register in advance with the WTO Secretariat. The videotape, or if applicable the redacted
version of the videotape, shall be screened to WTO delegates and members of the public who
have registered to observe the oral hear ing once the review process referred to in
subparagraph (xiv) above has, if requested, been completed. The time and location of the
videotape screening shall be announced in due c ourse. WTO delegates are invited to indicate
to the Appellate Body Secretariat, no later than 5 p.m. Geneva time on Wednesday,
10 August 2011, whether they wish to have a reserved seat in the room where the videotape
will be screened.
BCI deleted, as indicated [***] WT/DS353/AB/R
 HSBI omitted, as indicated [[HSBI]] Page 599

ANNEX V

HSBI Annex

[[HSBI]]