EUROPEAN UNION AND CERTAIN MEMBER STATES – CERTAIN MEASURES ON THE IMPORTATION AND MARKETING OF BIODIESEL AND MEASURES SUPPORTING THE BIODIESEL INDUSTRY REQUEST FOR CONSULTATIONS BY ARGENTINA
Document: REQUEST FOR CONSULTATIONS BY
Date: 23 May 2013
Document codes: WT/DS459/1; G/L/1027; G/SCM/D97/1; G/TRIMS/D/36; G/TBT/D/44
Complainant: Argentina
Respondent: EU
Dispute stage: Consultation
Agreements cited: Art. I:1, III, III:1, III:2, III:4, III:5  GATT 1994Art. 2.1, 2.2, 5.1, 5.2  Technical Barriers to Trade (TBT)Art. XVI:4  Agreement Establishing the World Trade OrganizationArt. 2.1, 2.2  Trade-Related Investment Measures (TRIMs)Art. 3.1(b), 3.2, 5(b), 5(c), 2.3, 1.1, 6.3(a)  Subsidies and Countervailing Measures (SCM)

EUROPEAN UNION AND CERTAIN MEMBER STATES – CERTAIN MEASURES ON THE
IMPORTATION AND MARKETING OF BIODIESEL AND MEASURES
SUPPORTING THE BIODIESEL INDUSTRY
REQUEST FOR CONSULTATIONS BY ARGENTINA
 The following communication, dated 15 May 2013, from the delegation of Argentina to the
delegation of the European Union and to the Chairperson of the Dispute Settlement Body,
is circulated in accordance with Article 4.4 of the DSU.

My authorities have instructed me to request consultations with the European Union (EU)
and its Member States pursuant to Articles 1 and 4 of the WTO Understanding on Rules and
Procedures Governing the Settlement of Disputes (DSU), Article XXIII of the General Agreement
on Tariffs and Trade 1994 (GATT 1994), Article 4.1, Article 7.1 and Article 30 of the
Agreement on Subsidies and Countervailing Measures (SCM Agreement), Article 8 of the
Agreement on Trade-Related Investment Measures (TRIMs Agreement) and Article 14 of the
Agreement on Technical Barriers to Trade (TBT Agreement), regarding certain measures imposed
by the EU and/or its Member States that affect the importation and marketing of biodiesel and
implementing measures, as well as measures supporting the biodiesel sector (hereinafter
"the measures").
This request for consultations is divided in two parts. Part (A) refers to measures imposed
by the EU for the promotion of the use of ener gy from renewable sources and the introduction
of a mechanism to control and reduce greenhouse gas emissions, as well as certain measures
for their implementation at the level of the Member States of the EU.
Part (B) refers to the measures adopted by some Member States relating to the
implementation of the EU measures and th e establishment of support schemes for the
biodiesel sector.
PART A
European Union
Argentina has identified the following measures in relation to the contested measures in
this Part:
(1) Directive 2009/28/EC of the European Parl iament and of the Council of 23 April 2009
on the promotion of the use of energy from renewable sources and amending and
subsequently repealing Directives 2001/77/EC and 2003/30/EC, published
in the Official Journal of the European Communities of 5 June 2009.
(2) Directive 2009/30/EC of the European Parl iament and of the Council of 23 April 2009
amending Directive 98/70/EC as regards the specification of petrol, diesel and gas-oil
and introducing a mechanism to monitor and reduce greenhouse gas emissions and
amending Council Directive 1999/32/EC as regards the specification of fuel used
WT/DS459/1 • G/L/1027 • G/SCM/D97/1 • G/TRIMS/D/36 • G/TBT/D/44

by inland waterway vessels and repealing Directive 93/12/EEC, published
in the Official Journal of the European Communities of 5 June 2009;
Member States of the European Union
(3) Royal Decree of 26 November 2011 establishing product standards for biofuels,
published in the Moniteur Belge of 7 December 20111;
(4) Articles L. 661-1 to L. 661-9 of the French Energy Code, amended by Ordinance
No. 2011-1105 of 14 September 2011: transposition of Directives 2009/28/EC
and 2009/30/EC of the European Parliame nt and of the Council of 23 April 2009,
published in the Journal Officiel de la République française of 17 September 20112;
(5) Ordinance No. 2011-1105 of 14 September 2011 transposing Directives 2009/28/EC
and 2009/30/EC of the European Parliament and of the Council of 23 April 2009 in the
field of renewable energy and biofuels, published in the Journal Officiel de
(6) Decree No. 2011-1468 of 9 November 2011 adopted pursuant to the Ordinance
transposing Directives 2009/28/EC and 2009/30/EC of the European Parliament and
of the Council of 23 April 2009 in the field of renewable energy and biofuels, published
in the Journal Officiel de la République française of 10 November 20114;
(7) Order of 23 November 2011 adopted pursuant to Ordinance No. 2011-1105
of 14 September 2011 and to Decree No. 2011-1468 of 9 November 2011 and related
to the sustainability of biofuels and bioliquids, published in the Journal Officiel de la
République française of 26 November 2011
5;
(8) Order of 25 October 2007 on the Renewable Transport Fuel Obligations 6, amended by
the Order of 7 December 2011 on the Renewable Fuel Obligations7 (United Kingdom);
(9) Legislative Decree No. 66/2005 of 21 March 2005 published in the Gazzetta Ufficiale
della Repubblica Italiana No. 96 of 27 April 20058, amended by Article 1 of Legislative
Decree No. 55/2011 of 31 March 2011, which transposes Directive 2009/30/EC,
published in the Gazzetta Ufficiale della Repubblica Italiana No. 97 of 28 April 2011
9;
(10) Interministerial Decree of 23 January 2012, published in the Gazzetta Ufficiale della
Repubblica Italiana No. 31 of 7 February 2012 10, amended by the Interministerial
Decree of 11 June 2012 published in the Gazzetta Ufficiale della Repubblica Italiana
No. 141 of 19 June 201211, and by the Interministerial Decree of 12 November 2012,

2 Articles L. 661-3 à L. 661-6 du Code de l'énergie.
biocarburants.
4 Décret n° 2011-1468 du 9 novembre 2011 pris en application de l'ordonnance portant transposition
5 Arrêté du 23 novembre 2011 pris en application de l'ordonnance n° 2011-1105 du 14 septembre 2011
6 The Renewable Transport Fuel Obligations Order 2007, SI 2007/3072.
7 The Renewable Transport Fuel Obligations (Amendment) Order 2011, SI 2011/2937.
8 Decreto Legislativo 21 marzo 2005, n. 66, di attuazione della direttiva 2003/17/CE relativa alla qualità
della benzina e del combustibile diesel.
9 Decreto Legislativo 31 marzo 2011, n. 55, di attuazione della direttiva 2009/30/CE, che modifica la
direttiva 98/70/CE, per quanto riguarda le specifiche relative a benzina, combustibile diesel e gasolio, nonché
l'introduzione di un meccanismo inteso a controllare e ridurre le emissioni di gas a effetto serra, modifica la
direttiva 1999/32/CE per quanto concerne le specifiche relative al combustibile utilizzato dalle navi adibite alla
navigazione interna e abroga la direttiva 93/12/CEE.
10 Decreto 23 gennaio 2012, recante il "Sistema nazionale di certificazione per biocarburanti
e bioliquidi".
11 Decreto 11 giugno 2012, recante "Modifiche al decreto 23 gennaio 2012, recante il Sistema nazionale
di certificazione per i biocarburanti e i bioliquidi".
WT/DS459/1 • G/L/1027 • G/SCM/D97/1 • G/TRIMS/D/36 • G/TBT/D/44

published in the Gazzetta Ufficiale della Repubblica Italiana No. 271
of 20 November 201212;
(11) Royal Decree No. 1597/2011 of 4 November 20 11 regulating the sustainability criteria
of biofuels and bioliquids, the National System of Verification of Sustainability and
double counting of certain biofuels, published in the Boletín Oficial del Estado No. 267
of 5 November 2011 (Spain);
and all amendments, revisions, replacements, implementing measures, and measures related
to those identified above; as well as all other implementing measures of Directives 2009/28/EC
and 2009/30/EC of the European Parliament and of the Council adopted by the EU Member States
that have not been identified in this section and for the identification of which Argentina requests
the assistance of the European Commission during the consultations.
The measures referred to in this Part establish sustainability criteria with which biofuels
13
and bioliquids must comply in order to be taken into account when measuring compliance with
the targets of the EU Member States in the fiel d of renewable energy and in order that these
biofuels and bioliquids may benefit from the incentives for their use.
In order to be considered sustainable, biofue ls and bioliquids must, among other criteria,
result in the saving of at least 35% of greenhouse gas emissions with respect to fossil fuels.
14
Argentina does not object either to the use of sustainability criteria or to a methodology
by which greenhouse gas emissions savings are calculated. In fact, the biodiesel sector
of Argentina stands out due to its environmental and social sustainability. The efficiency
of its integrated production facilities, their proximity to areas where the feedstock is grown and
to deepwater ports results in significant greenhouse gas savings. However, Argentina considers
that the above-mentioned threshold of 35% is arbitrary, and appears neither to be scientifically
justified nor to be based on a recognized international norm or standard.
The default value assigned by these measures to soybean biodiesel is 31%. This implies that
soybean biodiesel produced in Argentina cannot comply with the criteria for the reduction of the
greenhouse gas emissions to be considered sustainable on the basis of the default value.
As a result, there are only two available alternatives for biodiesel originating in Argentina to
qualify for the above-mentioned treatment:
(1) either the economic operators calculate the greenhouse gas emissions savings each
time they export their product to the EU; or
(2) they can show compliance with the sustainability criteria through a voluntary scheme
which the European Commission may decide to recognize for that purpose.
The first alternative represents an additional requirement that must be fulfilled by the
biodiesel producers for each transaction. With respect to the second alternative, the
Cámara Argentina de Biocombustibles (CARBIO, an entity comprised of the exporters of biofuels
in Argentina) presented a voluntary scheme to the Commission and applied for its recognition
in December 2010. However, until now the scheme has not yet been approved by
the European Commission.

12 Decreto 12 novembre 2012, recante "Ulteriori modifiche ed integrazioni al decreto 23 gennaio 2012,
recante il Sistema nazionale di certificazione per biocarburanti e bioliquidi".
13 For the purposes of this request for consultations, Argentina will indistinctly use the terms
"biocarburantes" and "biocombustibles" in Spanish.
14 Article 17 of Directive 2009/28/EC and Article 7b of Directive 98/70/EC as modified by
Directive 2009/30/EC.
WT/DS459/1 • G/L/1027 • G/SCM/D97/1 • G/TRIMS/D/36 • G/TBT/D/44

Argentina considers that these measures are inconsistent with, inter alia , the
following obligations:
- Article I:1 of the GATT 1994 as they appear to grant an advantage, favour,
privilege or immunity to products originating in other Members without according
them immediately and unconditionally to the like product originating in the
territory of Argentina.
- Article III:1 of the GATT 1994 because the application of the measures in question
appears to affect the offering for sale or the use of the product in
the EU internal market so as to afford protection to domestic production in the EU.
- Article III:4 of the GATT 1994 because the measures appear to be laws,
regulations or requirements affecting the internal sale, offering for sale, purchase,
transportation, distribution and use of these products, and because they result
in a less favourable treatment accorded to biodiesel from Argentina than that
accorded to biodiesel of national origin.
- Article 2.1 of the TBT Agreement because these measures appear to be technical
regulations that accord to products imported from Argentina less favourable
treatment than that accorded to like produc ts of national origin and like products
originating in other countries.
- Article 2.2 of the TBT Agreement because these measures appear to be technical
regulations the object or effect of which is to create unnecessary obstacles
to international trade and they appear to be more trade-restrictive than necessary
to fulfil a legitimate objective.
- Article 5.1 and 5.2 of the TBT Agreement, because the application of the measures
invoked, and in particular the conformity assessment procedures, to CARBIO's
request for the recognition of its voluntary scheme appears, among other effects,
to grant access to suppliers of biodiesel originating in Argentina under conditions
less favourable than those accorded to suppliers of like products of national origin
or originating in any other country, to create unnecessary obstacles to international
trade, and not to be undertaken and completed as expeditiously as possible and
in such a way as to ensure a no less favourable order for products originating
in Argentina than for the like domestic products.
- Article XVI:4 of the Marrakesh Agreement Establishing the World Trade
Organization because the measures do not appear to conform to the obligation of
the European Union to ensure the conformity of its laws, regulations and
administrative procedures with the obligations incumbent upon it under the
annexed Agreements.
PART B
Argentina has identified the following measures in relation to the contested measures in
this Part:
Belgium
(1) Programme Law of 27 December 2004, published in the Moniteur Belge
of 31 December 200415, amended by the Law of 24 December 2012 amending
Article 419 of the Programme Law of 27 December 2004 and Article 4 of the Law
of 10 June 2006, published in the Moniteur Belge of 28 December 2012;

15 Loi programme du 27 décembre 2004.
WT/DS459/1 • G/L/1027 • G/SCM/D97/1 • G/TRIMS/D/36 • G/TBT/D/44

(2) Law of 22 July 2009 on the incorporation obligation of biofuels into fossil fuels
released for consumption, published in the Moniteur Belge of 3 August of 200916;
(3) Royal Decree of 10 August 2009 concerning the information and management
obligations, the control of the obligations and the administrative fines of the Law
of 22 July 2009 concerning the incorporation obligation biofuels into fossil fuels
released for consumption and other provisions, published in the Moniteur Belge
of 17 August 200917;
(4) Royal Decree of 23 June 2011 on the ex tension of the application of the Law
of 22 July 2009 concerning the incorporation obligation of biofuels into fossil fuels
released for consumption, published in the Moniteur Belge of 30 June 2011
18;
(5) Law of 10 June 2006 concerning biofuels, published in the Moniteur Belge
of 16 June 200619, amended by the Law of 24 December 2012 amending Article 419
of the Programme Law of 27 December 2004 and Article 4 of the Law
of 10 June 2006, published in the Moniteur Belge of 28 December 2012
20;
(6) Royal Decree of 9 February 2011 concerning biofuels, published in the Moniteur Belge
of 23 February 201121;
and all amendments, revisions, replacements, implementing measures and related measures.
Some or all of these measures appear to be aimed at implementing or transposing:
- Council Directive 2003/96/EC of 27 October 2003 restructuring the Community
regime for the taxation of energy products and electricity;
- Directive 2009/28/EC of the European Parliament and of the Council of
23 April 2009 on the promotion of the use of energy from renewable sources and
amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC;
and/or
- Directive 2009/30/EC of the European Parliament and of the Council
of 23 April 2009 amending Directive 98/70/EC as regards the specification of
petrol, diesel and gas-oil and introducing a mechanism to monitor and reduce
greenhouse gas emissions and amending Council Directive 1999/32/EC as regards
the specification of fuel used by inland waterway vessels and repealing
Directive 93/12/EEC.
According to these measures, any petroleum company that releases fuels and/or diesel
products for consumption also has to release for consumption certain amounts of sustainable
biofuels. These measures establish that only biofuels produced in the EU can be considered
as "sustainable biofuels". However, since biodiesel produced in Argentina is not considered
as "sustainable biofuel", it can neither be considered for the purposes of the incorporation
obligation laid down in these measures, nor can it benefit from the excise duty reduction provided
for therein.
These measures also provide that a reduced excise duty rate is applied to diesel which
contains a certain percentage of fatty acid methyl ester falling within CN code 3824 90 99 (FAME)

17 Arrêté Royal du 10 août 2009 relatif aux obligations en matière d'information et d'administration, au
20 Loi du 24 décembre 2012 portant modification de l'article 419 de la loi-programme
WT/DS459/1 • G/L/1027 • G/SCM/D97/1 • G/TRIMS/D/36 • G/TBT/D/44

produced in production units which have been approved by the customs and excise duty
administration. According to these measures, only production units that are located in the territory
of an EU Member State can receive such approval.
Argentina considers that these measures are inconsistent with, inter alia , the
following obligations:
- Article III:2 of the GATT 1994 because biodiesel imported from Argentina to the EU
is subject, directly or indirectly, to internal taxes or other internal charges of any
kind in excess of those applied, directly or indirectly, to like domestic products and
internal taxes or other internal charges are applied to biodiesel imported from
Argentina contrary to the principles set out in Article III:1.
- Article III:4 of the GATT 1994 because the measures appear to be laws,
regulations or requirements affecting the internal sale, offering for sale, purchase,
transportation, distribution and use of these products, and because they result
in a less favourable treatment accorded to biodiesel from Argentina than that
accorded to biodiesel of national origin.
- Article III:5 of the GATT 1994 because the measures appear to be an internal
quantitative regulation relating to the mixture, processing or use of certain
products in specified amounts or proportions which requires that any specified
amount or proportion of any product which is the subject of these measures must
be supplied from domestic sources.
- Article 2.1 and 2.2 of the TRIMs Agreemen t, read alone or in conjunction with
Article 1(a) of the Illustrative List annexed to the Agreement because the measures
appear to be investment measures related to trade in goods which are inconsistent
with Article III of the GATT 1994.
- Article 3.1(b) and 3.2 of the SCM Agreement because it appears that a subsidy
is granted within the meaning of Articl e 1.1 of the SCM Agreement, there being
a financial contribution that confers a benefit. The subsidy appears to be a
prohibited subsidy because it is granted on the condition that biodiesel which is
produced in the EU is used. Since the subsidy is covered by the provisions of
Article 3 of the SCM Agreement, it would also be considered to be specific pursuant
to Article 2.3 of the SCM Agreement; or alternatively
- Article 5(b) and/or 5(c) of the SCM Agreement because it appears that an adverse
effect is caused to the interests of Argentina through the use of subsidies within
the meaning of Article 1.1 of the SCM Agr eement. These subsidies appear to cause
adverse effects because they cause a serious prejudice to the interests of another
Member within the meaning of Article 6.3(a).
Articles 4.2 and 7.2 of the SCM Agreement require that a request for consultations made
pursuant to paragraph 1 of those Articles shall include a statement of available evidence with
regard to the existence and nature of the su bsidy in question and the serious prejudice.
The evidence is listed in the Annex to this request.
France
(1) Article 265 bis A of the Customs Code: Implementation of a tax exemption scheme for
certain biofuels, amended by Ordinance No. 2011-1105 of 14 September 2011
transposing Directives 2009/28/EC and 2009/30/EC of the European Parliament and
of the Council of 23 April 2009, published in the Journal Officiel de la
République française of 16 September 2011
22;

WT/DS459/1 • G/L/1027 • G/SCM/D97/1 • G/TRIMS/D/36 • G/TBT/D/44

(2) Ordinance No. 2011-1105 of 14 September 2011 implementing Directives 2009/28/EC
and 2009/30/EC of the European Parliame nt and of the Council of 23 April 2009,
published in the Journal Officiel de la République française of 16 September 201123;
(3) Decree No. 2004-506 of 7 June 2004 on the application procedure of Article 265 bis A
of the Customs Code, published in the Journal Officiel de la République française
of 10 June 200424;
(4) Order of 27 October 2003 concerning the conditions required to participate in the call
for applications for release for consumption of biofuels in France resulting
in an internal consumption tax reduction on petroleum products, published
in the Journal Officiel de la République française of 8 November 2003
25;
and all amendments, revisions, replacements, implementing measures and related measures.
Some or all of these measures appear to be aimed at implementing or transposing:
- Council Directive 2003/96/EC of 27 October 2003 restructuring the Community
regime for the taxation of energy products and electricity;
- Directive 2009/28/EC of the European Parliament and of the Council
of 23 April 2009 on the promotion of the use of energy from renewable sources
and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC;
and/or
- Directive 2009/30/EC of the European Parliament and of the Council
of 23 April 2009 amending Directive 98/70/EC as regards the specification of
petrol, diesel and gas-oil and introducing a mechanism to monitor and reduce
greenhouse gas emissions and amending Council Directive 1999/32/EC as regards
the specification of fuel used by inland waterway vessels and repealing
Directive 93/12/EEC.
These measures grant a reduction of the internal consumption tax to certain biofuels,
including biodiesel, within the limit of the amount set in the licence and subject to
certain conditions.
Argentina considers that these measures are inconsistent with, inter alia , the
following obligations:
- Article 3.1(b) and 3.2 of the SCM Agreement because it appears that a subsidy
is granted within the meaning of Articl e 1.1 of the SCM Agreement, there being
a financial contribution that confers a benefit. The subsidy appears to be a
prohibited subsidy because it appears to be contingent on the use of biodiesel
produced in the EU. Since the subsidy is co vered by the provisions of Article 3 of
the SCM Agreement, it would also be considered to be specific pursuant to
Article 2.3 of the SCM Agreement; or alternatively
- Article 5(b) and/or 5(c) of the SCM Agreement because it appears that an adverse
effect is caused to the interests of Argentina through the use of subsidies within
the meaning of Article 1.1 of the SCM Agr eement. These subsidies appear to cause
adverse effects because they cause a serious prejudice to the interests of another
Member within the meaning of Article 6.3(a) of the SCM Agreement.

renouvelables et des biocarburants.
24 Décret n° 2004-506 du 7 juin 2004 relatif aux modalités d'application de l'article 265 bis A du code
des douanes.
WT/DS459/1 • G/L/1027 • G/SCM/D97/1 • G/TRIMS/D/36 • G/TBT/D/44

Articles 4.2 and 7.2 of the SCM Agreement require that a request for consultations made
pursuant to paragraph 1 of those Articles shall include a statement of available evidence with
regard to the existence and nature of the su bsidy in question and the serious prejudice.
The evidence is listed in the Annex to this request.
Italy
(1) Legislative Decree No. 66/2005 of 21 March 2005 published in the Gazzetta Ufficiale
della Repubblica Italiana No. 96 of 27 April 200526 amended by Article 1 of Legislative
Decree No. 55/2011 of 31 March 2011, which implements Directive 2009/30/EC,
published in the Gazzetta Ufficiale della Repubblica Italiana No. 97 of 28 April 201127;
(2) Legislative Decree No. 128/2005 of 30 May 2005 published in the Gazzetta Ufficiale
della Repubblica Italiana No. 160 of 7 December 2005, amended by Article 1,
paragraph 367, of Law No. 296 of 27 December 2006, published in the
Gazzetta Ufficiale della Repubblica Italiana No. 299 of 27 December 200628;
(3) Decree Law No. 2/2006 of 10 January 2006, published in the Gazzetta Ufficiale della
Repubblica Italiana No. 8 of 11 January 2006 29, converted into Law with amendments
by Law No. 81 of 11 March 2006 30 published in the Gazzetta Ufficiale della Repubblica
Italiana No. 54 of 11 March 2006, amended by Article 1, paragraph 368,
of Law No. 296/2006 of 27 December 2006, published in the Gazzetta Ufficiale della
Repubblica I taliana No. 299 of 27 December 2006 31, and by Article 33 of
Legislative Decree 28/2011 of 3 March 2011, published in the Gazzetta Ufficiale della
Repubblica Italiana No. 71 of 28 March 201132;
(4) Interministerial Decree No. 100 of 23 April 2008, published in the Gazzetta Ufficiale
della Repubblica Italiana No. 131 of 6 June 200833;
(5) Interministerial Decree No. 110 of 29 April 2008, published in the Gazzetta Ufficiale
della Repubblica Italiana No. 142 of 19 June 2008 34, amended by the Interministerial
Decree of 13 February 2013, published in the Gazzetta Ufficiale della Repubblica
Italiana No. 54 of 5 March 201335;

26 Decreto Legislativo 21 marzo 2005, n. 66, di attuazione della direttiva 2003/17/CE relativa alla
qualità della benzina e del combustibile diesel.
27 Decreto Legislativo 31 marzo 2011, n. 55, di attuazione della direttiva 2009/30/CE, che modifica la
direttiva 98/70/CE, per quanto riguarda le specifiche relative a benzina, combustibile diesel e gasolio, nonché
l'introduzione di un meccanismo inteso a controllare e ridurre le emissioni di gas a effetto serra, modifica la
direttiva 1999/32/CE per quanto concerne le specifiche relative al combustibile utilizzato dalle navi adibite alla
navigazione interna e abroga la direttiva 93/12/CEE.
28 Legge 27 dicembre 2006, n. 296, recante "Disposizioni per la formazione del bilancio annuale e
pluriennale dello Stato (legge finanziaria 2007)".
29 Decreto-Legge 10 gennaio 2006, n. 2, recante "Interventi urgenti per i settori dell'agricoltura,
dell'agroindustria, della pesca, nonché in materia di fiscalità d'impresa".
30 Legge 11 marzo 2006, n. 81, di conversione in legge, con modificazioni, del decreto-legge
10 gennaio 2006, n. 2, recante interventi urgenti per i settori dell'agricoltura, dell'agroindustria, della pesca,
nonché in materia di fiscalità d'impresa.
31 Legge 27 dicembre 2006, n. 296, recante "Disposizioni per la formazione del bilancio annuale e
pluriennale dello Stato (legge finanziaria 2007)".
32 Decreto legislativo 3 marzo 2011, n. 28, di attuazione della direttiva 2009/28/CE sulla promozione
dell'uso dell'energia da fonti rinnovabili, recante modifica e successiva abrogazione delle direttive 2001/77/CE
e 2003/30/CE.
33 Decreto 23 aprile 2008, n. 100, "Regolamento recante le sanzioni amministrative per il mancato
raggiungimento dell'obbligo di immissione in consumo di una quota minima di biocarburanti, ai sensi
dell'articolo 2-quater, comma 2, della legge 11 marzo 2006, n. 81, così come sostituito dall'articolo 1, comma
368, della legge 27 dicembre 2006, n. 296".
34 Decreto 29 aprile 2008, n. 110, "Regolamento recante criteri, condizioni e modalità per l'attuazione
dell'obbligo di immissione in consumo nel territorio nazionale di una quota minima di biocarburanti, ai sensi
dell'articolo 1, comma 368, punto 3, della legge n. 296/2006".
35 Decreto 13 febbraio 2013, "Specifiche convenzionali di carburanti e biocarburanti".
WT/DS459/1 • G/L/1027 • G/SCM/D97/1 • G/TRIMS/D/36 • G/TBT/D/44

(6) Interministerial Decree of 25 January 2010, published in the Gazzetta Ufficiale della
Repubblica Italiana No. 42 of 20 February 201036;
(7) Legislative Decree No. 28/2011 of 3 March 2011, published in the Gazzetta Ufficiale
della Repubblica Italiana No. 71 of 28 March 2011 37, amended and supplemented
by Decree Law No. 83/2012 of 22 June 2012, published in the Gazzetta Ufficiale della
Repubblica Italiana No. 147 of 26 June 201238, converted into Law, with amendments,
by Law No. 134/2012 of 7 August 2012, published in the Gazzetta Ufficiale della
Repubblica Italiana No. 187 of 11 August 201239;
(8) Interministerial Decree of 23 January 2012, published in the Gazzetta Ufficiale della
Repubblica Italiana No. 31 of 7 February 2012 40, amended by the Interministerial
Decree of 11 June 2012 published in the Gazzetta Ufficiale della Repubblica Italiana
No. 141 of 19 June 201241, and by the Interministerial Decree of 12 November 2012,
published in Gazzetta Ufficiale della Repubblica Italiana No. 271
of 20 November 201242;
(9) Interministerial Decree of 14 February 2013, published in the Gazzetta Ufficiale della
Repubblica Italiana No. 54 of 5 March 201343;
and all amendments, revisions, replacements, implementing measures and related measures.
Some or all of these measures appear to be aimed at implementing or transposing:
- Directive 2009/28/EC of the European Parliament and of the Council
of 23 April 2009 on the promotion of the use of energy from renewable sources
and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC;
and/or
- Directive 2009/30/EC of the European Parliament and of the Council
of 23 April 2009 amending Directive 98/70/EC as regards the specification of
petrol, diesel and gas-oil and introducing a mechanism to monitor and reduce
greenhouse gas emissions and amending Council Directive 1999/32/EC as regards
the specification of fuel used by inland waterway vessels and repealing
Directive 93/12/EEC.
These measures establish an incorporation obligation of a minimum quota of biofuels into
fossil fuels used for land transportation. The percentage of biofuels that have to be mandatorily
incorporated into fossil fuels is calculated annually on the basis of the total calorific value of the
fuels released for consumption in the course of the preceding year. Only biofuels that comply with
the sustainability requirements provided for in these measures can be taken into consideration.
Compliance with the incorporation obligation is monitored by means of certificates of release
for consumption of biofuels that are issued by the Ministry of Agriculture, Food and Forestry.
Each certificate corresponds to the release for consumption of 10 gigacalories. Those parties that

36 Decreto 25 gennaio 2010, recante "Modifica della quota minima di immissione in consumo di
biocarburanti ed altri carburanti rinnovabili".
37 Decreto legislativo 3 marzo 2011, n. 28, di attuazione della direttiva 2009/28/CE sulla promozione
dell'uso dell'energia da fonti rinnovabili, recante modifica e successiva abrogazione delle direttive 2001/77/CE e
2003/30/CE.
38 Decreto-legge 22 giugno 2012, n. 83, recante "Misure urgenti per la crescita del Paese".
39 Legge 7 agosto 2012, n. 134, di conversione in legge, con modificazioni, del decreto-legge
40 Decreto 23 gennaio 2012, recante il "Sistema nazionale di certificazione per biocarburanti
e bioliquidi".
41 Decreto 11 giugno 2012, recante "Modifiche al decreto 23 gennaio 2012, recante il Sistema nazionale
di certificazione per i biocarburanti e i bioliquidi".
42 Decreto 12 novembre 2012, recante "Ulteriori modifiche ed integrazioni al decreto 23 gennaio 2012,
recante il Sistema nazionale di certificazione per biocarburanti e bioliquidi".
43 Decreto 14 febbraio 2013, recante il "Sistema nazionale di premialità in materia di obbligo di
immissione in consumo di biocarburanti".
WT/DS459/1 • G/L/1027 • G/SCM/D97/1 • G/TRIMS/D/36 • G/TBT/D/44

are bound by the obligation of incorporation must have a sufficient number of certificates to show
compliance with this obligation.
Biofuels produced in the EU and obtained from raw materials cultivated in the territory
of the EU or from waste or byproducts produced in the EU, enjoy a fictitious increase of 20% of
their energy contribution. This means that, in comparison with other biofuels, an amount
corresponding to only 80% of the calorific value otherwise required is sufficient to obtain the same
amount of certificates.
Furthermore, biofuels produced outside of the EU can be considered for compliance with the
incorporation obligation only if there is an import licence for each shipment. The granting of the
licence is contingent upon the presentation of a number of documents. This causes additional
administrative burdens making the use of these biofuels less favourable.
Argentina considers that these measures are inconsistent with, inter alia , the
following obligations:
- Article III:4 of the GATT 1994 because the measures appear to be laws,
regulations or requirements affecting the internal sale, offering for sale, purchase,
transportation, distribution and use of these products, and because they appear
to result in a less favourable treatment accorded to biodiesel from Argentina than
that accorded to biodiesel of national origin.
- Article III:5 of the GATT 1994 because the measures appear to be an internal
quantitative regulation relating to the mixture, processing or use of certain
products in specified amounts or proportions which requires that any specified
amount or proportion of any product which is the subject of these measures must
be supplied from domestic sources.
- Article 2.1 and 2.2 of the TRIMs Agreemen t, read alone or in conjunction with
Article 1(a) of the Illustrative List annexed to the Agreement because the measures
appear to be investment measures related to trade in goods which are inconsistent
with Article III of the GATT 1994.
Poland
(1) Law of 25 August 2006, published in the Dziennik Urzędowy Rzeczypospolitej Polskiej
No. 169 of 25 September 200644;
(2) Regulation of the Council of Ministers of 15 June 2007 on national objectives for
years 2008 - 2013, published in the Dziennik Urz ędowy Rzeczypospolitej Polskiej
No. 110 of 25 June 200745;
(3) Law of 27 May 2011 which amends the law on monitoring and control of the quality of
fuels of 27 May 2011, published in the Dziennik Urz ędowy Rzeczypospolitej Polskiej
No. 153 of 26 July 201146;
and all amendments, revisions, replacements, implementing measures and related measures.
According to these rules, companies or individuals that market fuels for land transportation
are required to incorporate a minimum percentage of biofuels in the total volume of marketed
fuels. This minimum percentage is known as the "national indicative target" and is currently set
at 7.10%. The percentage is calculated on the basis of the calorific value of the fuels.

44 Ustawa z dnia 25 sierpnia 2006 r. o biokomponentach i biopaliwach ciekłych.
45 Rozporządzenie Rady Ministrów z dnia 15 czerwca 2007 r. w sprawie Narodowych Celów
Wskaźnikowych na lata 2008-2013.
46 Ustawa z dnia 27 maja 2011 r. o zmianie ustawy o systemie monitorowania i kontrolowania jakości
paliw oraz niektórych innych ustaw.
WT/DS459/1 • G/L/1027 • G/SCM/D97/1 • G/TRIMS/D/36 • G/TBT/D/44

The rules provide that the aforementioned percentage is reduced by a factor, which
is currently 15%, when persons subject to th e requirement provide evidence of the use
of at least 70% of biodiesel obtained from raw materials grown in the territory of the
Member States of the EU or of the European Free Trade Association (EFTA).
Argentina considers that these measures are inconsistent with, inter alia , the
following obligations:
- Article I:1 of the GATT 1994 as they appear to grant an advantage, favour,
privilege or immunity to products originating in other Members without according
them immediately and unconditionally to the like product originating in the
territory of Argentina;
- Article III:4 of the GATT 1994 because the measures appear to be laws,
regulations or requirements affecting the internal sale, offering for sale, purchase,
transportation, distribution and use of these products, and because they result
in a less favourable treatment accorded to biodiesel from Argentina than that
accorded to biodiesel of national origin;
- Article 2.1 and 2.2 of the TRIMs Agreemen t, read alone or in conjunction with
Article 1(a) of the Illustrative List annexed to the Agreement because the measures
appear to be investment measures related to trade in goods which are inconsistent
with Article III of the GATT 1994.
Argentina reserves the right to include rule s related to, amending or expanding those
referred to in both Part A and Part B of the present request for consultations, as well as to increase
the claims relating thereto, in the course of the consultations.

Argentina awaits the response of the European Union and its Member States to this request
and expresses its readiness to coordinate a mutually convenient date and place for
the consultations.

WT/DS459/1 • G/L/1027 • G/SCM/D97/1 • G/TRIMS/D/36 • G/TBT/D/44

ANNEX
Statement of available evidence
Belgium
(1) Decisión de la Comisión Europea de 23 de diciembre de 2005, N 334 / 2005 - Taux d'accise
réduit en faveur des biocarburants (published in the Official Journal of the European
Communities of 10 February 2006).
(2) Senado de Bélgica, Bulletin des questions et réponses, 3-87, Session 2006-2007,
Question n°3-7207 posée par M. Cornil le 21 février 2007 au Vice-premier ministre et
ministre des Finances.
(4) Center for Renewable Energy Sources and Savi ng, Biodiesel Chains - "Promoting favourable
conditions to establish biodiesel market actions"; Fact sheet - The biodiesel market in
Belgium.
(5) National Action Plan for Renewable Energy, November 2010.
(6) Press release of the Council of Ministers, Validation annuelle des agréments accordés aux
unités de production de biocarburants, 3 May 2013.
(7) Law of 10 June 2006 concerning biofuels 47, published in the Moniteur Belge of 16 June 2006,
amended by the Law of 24 December 2012 amending Article 419 of the Programme Law
of 27 December 2004 and Article 4 of the Law of 10 June 2006
48, published in the
Moniteur Belge of 28 December 2012.
(8) Programme Law of 27 December 2004 49, published in the Moniteur Belge
of 31 December 2004, amended by the Law of 24 December 2012 amending Article 419
of the Programme Law of 27 December 2004 and Article 4 of the Law of 10 June 2006,
published in the Moniteur Belge of 28 December 2012.
France
(1) Public report of the Court of Auditors on biofuel support policy, published in January 2012.
(4) Table of licensed biofuel production units pursuant to Article 265 bis A of the Customs Code.
(5) Reuters, French producer sees price threat to EU biodiesel, 14 January 2008.
(6) F.O. Licht's World Ethanol and Biofuels Report, Y/y decline in France’s biodiesel imports ,
22 May 2012.

49 Loi programme du 27 décembre 2004.
WT/DS459/1 • G/L/1027 • G/SCM/D97/1 • G/TRIMS/D/36 • G/TBT/D/44

(7) Article 265 bis A of the Customs Code: Implementa tion of a tax exemption scheme for
certain biofuels, amended by Ordinance No . 2011-1105 of 14 September 2011 transposing
Directives 2009/28/EC and 2009/30/EC of the European Parliament and of the Council
of 23 April 2009, in the Journal Officiel de la République française of 16 September 2011.50
(8) Ordinance No. 2011-1105 of 14 September 2 011 implementing Directives 2009/28/EC and
2009/30/EC of the European Parliament and of the Council of 23 April 2009, published in the
Journal Officiel de la République française of 16 September 2011.51
(9) Decree No. 2004-506 of 7 June 2004 on the application procedure of Article 265 bis A of the
Customs Code, published in the Journal Officiel de la République française
of 10 June 2004.52
(10) Order of 27 October 2003 concerning the conditions required to participate in the call for
applications for release for consumption of biofuels in France resulting in an internal
consumption tax reduction on petroleum products, published in the Journal Officiel de la
République française of 8 November 2003.53