EUROPEAN COMMUNITIES AND CERTAIN MEMBER STATES – MEASURES AFFECTING TRADE IN LARGE CIVIL AIRCRAFT
Document: Understanding between the European Union and the United States Regarding Procedures under Articles 21 and 22 of the DSU
Date: 17 January 2012
Document codes: WT/DS316/21
Complainant: U.S.
Respondent: EU, France, Germany, Spain, United Kingdom
Third parties: Australia, Brazil, Canada, China, Japan, South Korea
Dispute stage: Retaliation & Arbitration
Agreements cited: Art. 3.1, 3.2, 5, 6.3  Subsidies and Countervailing Measures (SCM)Art. XVI:1  GATT 1994Art. 1, 2  Subsidies and Countervailing Measures (SCM)Art. III:4  GATT 1994

EUROPEAN COMMUNITIES AND CERTAIN MEMBER STATES –
MEASURES AFFECTING TRADE IN LARGE CIVIL AIRCRAFT

Understanding between the European Union and the United States
Regarding Procedures under Articles 21 and 22 of the DSU

 The following communication, dated 12 January 2012, from the delegation of the European
Union and the delegation of the United States to th e Chairperson of the Dispute Settlement Body, is
circulated at the request of these delegations.

The European Union and the United States would like to inform the Dispute Settlement Body
of the attached "Agreed Procedures under Articles 21 and 22 of the Dispute Settlement Understanding
and Article 7 of the SCM Agreement" between the European Union and the United States with respect
to the dispute European Communities and Certain Member St ates – Measures Affecting Trade in
Large Civil Aircraft (WT/DS316).

We request that you please circulate the attached agreement to the Members of the Dispute
Settlement Body.

(WT/DS316)

Agreed Procedures under Articles 21 and 22 of the Dispute Settlement Understanding
and Article 7 of the SCM Agreement

At its meeting on 1 June 2011, the Dis pute Settlement Body ("DSB") adopted its
recommendations and rulings in the dispute .1

At the meeting of the DSB on 17 June 2011, pursuant to Article 21.3 of the Understanding on
Rules and Procedures Governing the Settlement of Disputes ("DSU"), the European Union informed
the DSB that it intended to implement the DSB recommendations and rulings in a manner that
respected its WTO obligations within the tim e period indicated in Article 7.9 of the Agreement on
Subsidies and Countervailing Measures ("SCM Agreement"), that is, within six months from
1 June 2011, expiring on 1 December 2011.
2

On 9 December 2011, the United States requested consultations with the European Union
pursuant to Article 4 of the DSU and Articles 4, 7, and 30 of the SCM Agreement. On the same day,
the United States also requested that a meeting of the DSB be held on 22 December 2011 to consider
recourse by the United States to Article 22 of the DSU and Article 7.9 of the SCM Agreement.

The United States and the European Union ("th e parties") have agreed on the following
procedures for the exclusive purposes of this dispute. They are designed to facilitate the resolution of
the dispute and reduce the scope for procedural di sputes and are without prejudice to either party's
views on the correct interpretation of the DSU and the SCM Agreement.

1. The parties note that the United States cons iders that the situation described in
Article 21.5 of the DSU exists and has requ ested that the Europ ean Union enter into
consultations with the United States. The parties agree to hold such consultations
within 15 days from the date of receipt of the request unless the parties otherwise
agree. After this 15-day period has el apsed, the United States may request the
establishment of a panel pursuant to Article 21.5 of the DSU at any time.
2. At the first DSB meeting at which the US request for the establishment of an
Article 21.5 panel appears on the agenda, the European Union shall accept the
establishment of that panel.
3. The parties shall cooperate to enable the Article 21.5 panel to circulate its report
within 90 days of the panel’s establishment, excluding such time during which the
panel’s work may be suspended pursuant to Article 12.12 of the DSU.
4. Either party may request the DSB to adopt the report of the Article 21.5 panel at a
DSB meeting held at least 20 days after the circulation of the report to the Members
unless either party appeals the report.

1 WT/DS316/16 of 6 June 2011, Action by the Dispute Settlement Body.
2 WT/DSB/M/298 of 29 July 2011, paras. 51 to 54.

5. In the event of an appeal of the Article 21.5 panel report, the parties shall cooperate to
enable the Appellate Body to circulate its report to the Members within 90 days from
the date of notification of the appeal to th e DSB. Further, either party may request
the DSB to adopt the report of the Article 21.5 panel and the report of the Appellate
Body at a DSB meeting held within 20 days of the circulation of the Appellate Body
report to the Members.
6. The United States has requested the DSB to authorize countermeasures pursuant to
Article 22.2 of the DSU and Article 7.9 of the SCM Agreement. As the matter has
been referred to arbitration, the United Stat es and the EU shall request the arbitrator
to suspend that proceeding. In the ev ent that the DSB following a proceeding under
Article 21.5 of the DSU rules that a measure taken to comply does not exist or is
inconsistent with a covered agreement, either party may request the Article 22.6
arbitrator to resume its work.
7. The parties will cooperate to enable the arbitrator under Article 22.6 of the DSU to
circulate its decision within 60 days of the date on which the suspension of its
proceedings ends under paragraph 6.
8. If any of the original panelists is not available for either the Article 21.5 compliance
panel or the Article 22.6 arbitration (o r both), or any person serving in such
proceeding becomes unavailable to serve, the parties will promptly consult on a
replacement, and either party may request the Director-General of the WTO to
appoint, within ten days of being so requested, a replacement for the proceeding or
proceedings in which a replacement is require d. If an original panelist is unavailable
to serve in either of the proceedings, or a person serving in such proceeding becomes
unavailable to serve, the parties will further request that, in making this appointment,
the Director-General seek a person who will be available to act in both proceedings.
9. The parties to this dispute will continue to cooperate in all matters related to these
agreed procedures and shall not raise any procedural objection to any of the steps set
out herein. If, during the application of these procedures, the parties consider that a
procedural aspect has not been properly addressed in these procedures, they will
endeavor to find a solution within the shortest time possible that will not affect the
other aspects and steps agreed herein.
10. On or before the date on which the Article 21.5 compliance panel or the Article 22.6
arbitrator is composed, the parties sh all propose the adoption for purposes of each
proceeding of procedures for the protection of confidential information based on the
Additional Working Procedures for DS316 – Procedures for the Protection of
Business Confidential Information and Hi ghly Sensitive Business Information used
by the Panel in EC – Large Civil Aircraft , along with any modifications to those
procedures that the parties agree to propose.
3

3 WT/DS316/R, Annex E.

Signed in Geneva, 12 January 2012

For the United States

Mr. David P. Shark
Chargé d’affaires a.i.

For the European Union

Mr. Detlev Brauns
Chargé d’affaires a.i.