CANADA – MEASURES RELATING TO THE FEED-IN TARIFF PROGRAM NOTIFICATION OF AN OTHER APPEAL BY THE EUROPEAN UNION UNDER ARTICLE 16.4 AND ARTICLE 17 OF THE UNDERSTANDING ON RULES AND PROCEDURES GOVERNING THE SETTLEMENT OF DISPUTES (DSU), AND UNDER RULE 23(1) OF THE WORKING PROCEDURES FOR APPELLATE REVIEW
Document: AND UNDER RULE 23(1) OF THE WORKING PROCEDURES FOR APPELLATE REVIEW
Date: 15 February 2013
Document codes: WT/DS426/10
Complainant: EU
Respondent: Canada
Third parties: U.S., Japan, Australia, China, Taiwan, India, Saudi Arabia, Brazil, South Korea, Mexico, Norway, Turkey, El Salvador
Dispute stage: Appellate Body
Agreements cited: Art. 3.1(b), 3.2, 1.1  Subsidies and Countervailing Measures (SCM)Art. III:4  GATT 1994Art. 2.1  Trade-Related Investment Measures (TRIMs)

CANADA – MEASURES RELATING TO THE FEED-IN TARIFF PROGRAM
NOTIFICATION OF AN OTHER APPEAL BY THE EUROPEAN UNION
UNDER ARTICLE 16.4 AND ARTICLE 17 OF THE UNDERSTANDING ON RULES
AND PROCEDURES GOVERNING THE SETTLEMENT OF DISPUTES (DSU),
AND UNDER RULE 23(1) OF THE WORKING PROCEDURES FOR APPELLATE REVIEW
 The following notification, dated 11 Fe bruary 2013, from the Delegation of the
European Union, is being circulated to Members.

Pursuant to Article 16.4 and Article 17.1 of the DSU the European Union hereby notifies to
the Dispute Settlement Body its decision to appeal to the Appellate Body certain issues of law
covered in the Panel Report and certain legal interpretations developed by the Panel in the dispute
Canada – Measures Relating to the Feed-In Tariff Program (WT/DS426). Pursuant to Rule 23(1) of
the Working Procedures for Appellate Review , the European Union simultaneously files this Notice
of Other Appeal with the Appellate Body Secretariat.
For the reasons to be further elaborated in its submissions to the Appellate Body, the
European Union appeals, and requests the Appellate Body to modify, reverse and/or declare moot
and with no legal effect the findings and conclusi ons of the Panel and complete the analysis with
respect to the following errors of law and legal interpretations contained in the Panel Report.1
 The European Union submits that the Panel erred in the interpretation and application of
Articles 2.1 and 2.2 of the TRIMs Agreement read in conjunction with Paragraph 1(a) of the
Illustrative List in the Annex to the TRIMs Agreement when finding that they do not preclude
the application of Article III:8(a) of the GATT 1994 to the challenged measures.2
 The European Union requests the Appellate Body to reverse the Panel's finding in
paragraph 7.121, complete the analysis and fi nd that Article III:8(a) of the GATT 1994 was
not applicable in the present case. As a consequence, the European Union requests the
Appellate Body to uphold, although modifying the reasoning, the Panel's ultimate finding in
paragraph 7.166 that the challenged measures are TRIMs falling within the scope of
Paragraph 1(a) of the Illustrative List, and that in the light of Article 2.2 and the chapeau to
Paragraph 1(a) of the Illustrative List, they are inconsistent with Article III:4 of the
GATT 1994, and thereby also inconsistent with Article 2.1 of the TRIMs Agreement.
 The Panel erred in its interpretation and a pplication of Article III:8(a) of the GATT 1994
when finding that that the "Minimum Required Domestic Content Level" contained in the FIT
Programme should be properly characterised as one of the "requirements governing" the
alleged procurement of electricity for the purpose of Article III:8(a) of the GATT 1994.3

1 Pursuant to Rule 23(2)(c)(ii)(C) of the Working Procedures for Appellate Review this Notice of Other
Appeal includes an indicative list of the paragraphs of the Panel Report containing the alleged errors, without
prejudice to the ability of the European Union to refer to other paragraphs of the Panel Report in the context of
its appeal.
2 Panel Report, paras. 7.114-7.121, and in particular, paras. 7.119 and 7.120.
3 Panel Report, paras. 7.126-7.128, and 7.152.

 The European Union requests the Appellate Body to reverse such finding, complete the
analysis and find instead that the "Minimum Required Domestic Content Level" are not
"requirements governing the procurement … of the products purchased" in the present case.
As a consequence of the Appellate Body's reversal of the Panel's finding in paragraph 7.128,
the European Union requests the Appellate Body to reverse the Panel's finding in
paragraph 7.152 that "(ii) the "Minimum Required Domestic Content Level" prescribed under
the FIT Programme, and effected through the FIT and microFIT Contracts, is one of the
"requirements governing" the Government of Ontario's "procurement" of electricity", and
find instead that the "Minimum Required Domestic Content Level" does not constitute
"requirements governing the procurement … of the products purchased" in the present case.
 The Panel erred in its interpretation of Arti cle III:8(a) of the GATT 1994 when stating that
the ordinary meaning of the terms "governmental purposes" is relatively broad and may
encompass the meaning proposed by Canada, i.e., that a purchase for "governmental
purposes" may exist whenever a government purchases a product for a stated aim of the
government.4 The European Union requests the Appellate Body to reverse this statement or,
at the very least, to declare it moot and with no legal effect. In addition, should the
Appellate Body reverse the Panel's finding that the Government of Ontario's procurement of
electricity under the FIT Programme is undertaken "with a view to commercial resale",5 the
European Union requests the Appellate Body to modify and/or reverse the Panel's
reasoning6 as to the meaning of "governmenta l purposes" in view of the arguments raised
by the European Union as to the proper interpretation of those terms, complete the analysis
and find that the Government of Ontario's procurement of electricity under the FIT
Programme is not undertaken for "governmental purposes". As a consequence, the Panel's
findings in paragraph 7.152 should also be amended accordingly to reflect another reason
why Canada could not rely on Article III:8(a) of the GATT 1994 to exclude the application of
Article III:4 of the GATT 1994 to the "Minimum Required Domestic Content Level".
 The Panel erred in its application of Article 1. 1(b) of the SCM Agreement as well as did not
make an objective assessment of the matter in accordance with Article 11 of the DSU when
finding that the European Union had failed to established that the FIT Programme and its
related contracts confer a "benefit" under Article 1.1(b) of the SCM Agreement.7 In
particular:
(a) the Panel erred in the application of Arti cle 1.1(b) of the SCM Agreement to the
facts of this case.
8 The "prevailing market conditions" in Ontario, as evidenced by
the purpose of the FIT Programme, showed that the FIT generators would not be
able to obtain the necessary remuneration to be present in such marketplace;
(b) the Panel did not make an objective assessment of the matter in accordance with
Article 11 of the DSU by failing to consider the totality of the evidence, by
providing incoherent reasoning and exercising false judicial economy, when finding
that, even on the basis of a hypothetic al "market" counterfactual as the one
suggested in its observations, the European Union had failed to establish the
existence of "benefit".
9
In view of these errors, the European Union requests the Appellate Body to reverse the
Panel's finding in paragraph 7.328(ii) that the European Union failed to establish the existence of
benefit in the present case, that the challenged measures conferred a "benefit" under Article
1.1(b) of the SCM Agreement, complete the analysis on the basis of the Panel's findings and
uncontested facts on the record, and find that the challenged measures conferred a "benefit"
under Article 1.1(b) of the SCM Agreement. As a consequence, the Panel's ultimate conclusion that
the European Union had failed to establish that the FIT Programme and its related contracts
constitute subsidies or envisage the granting of su bsidies inconsistent with Articles 3.1(b) and 3.2

4 Panel Report, para. 7.139, first sentence (and the follow-up statement in para. 7.140, second
sentence).
5 Panel Report, para. 7.151.
6 Panel Report, paras. 7.138-7.145.
7 Panel Report, para. 7.328(ii).
8 Panel Report, paras. 7.276-7.327.
9 Panel Report, paras. 7.322-7.328(ii).

of the SCM Agreement is also in error. 10 The European Union requests the Appellate Body to also
reverse such a conclusion, complete the analysis on the basis of the Panel's findings and
uncontested facts on the record, and find that the challenged measures amount to subsidies
prohibited under Articles 3.1(b) and 3.2. Accordingly, the European Union requests the Appellate
Body to recommend that Canada withdraws its prohibited subsidies without delay (and, in no case,
n o m o r e t h a n w i t h i n 9 0 d a y s ) , a s r e q u i r e d b y Article 4.7 of the SCM Agreement. Should the
Appellate Body be unable to complete the analysis under any of the requests made by the
European Union, the European Union requests the Appellate Body to declare moot and with no
legal effect the Panel's findings and conclusions in paragraphs 7.328(ii) and 8.7.11
Certain Measures Affecting the Renewable Energy Generation Sector (WT/DS412) . That report contains
identical findings and conclusions as those contained in para. 7.328(ii) and para. 8.7 in the Panel Report in
DS426. The European Union incorporates hereto Japan's Notice of Other Appeal dated 11 February 2013 with
respect to the errors of law and lega l interpretations, including any request for completing the analysis, made
in connection with para. 7.328(ii) of the panel report in DS412.