Document: WT/DS316/R Page C-1 BCI deleted, as indicated [***] ANNEX C REPORT OF THE DESIGNATED REPRESENTATIVE, INCLUDING ATTACHMENTS 1 AND 2 (WORKING PROCEDURES FOR DEVELOPING INFORMATION UNDER ANNEX V OF THE AGREEMENT ON SUBSIDIES AND COUNTERVAILING MEASURES;  AND PROCEDURES FOR THE PROTECTION OF BUSINESS CONFIDENTIAL INFORMATION AND HIGHLY SENSITIVE
Document codes: WT/DS316/R
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

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ANNEX C

REPORT OF THE DESIGNATED REPRESENTATIVE, INCLUDING
ATTACHMENTS 1 AND 2 (WORKING PROCEDURES FOR DEVELOPING
INFORMATION UNDER ANNEX V OF THE AGREEMENT ON SUBSIDIES AND
COUNTERVAILING MEASURES; AND PROCEDURES FOR THE PROTECTION
OF BUSINESS CONFIDENTIAL INFORMATION AND HIGHLY SENSITIVE
BUSINESS INFORMATION)

Contents Page
Annex C-1 Procedure under Annex V of the Agreement on Subsidies and
Countervailing Measures – Report to the Panel from the Facilitator
C-2
Attachment 1 Working Procedures for De veloping Information under Annex V of
the Agreement on Subsidies and Countervailing Measures
C-10
Attachment 2 Procedures for the Protection of Business Confidential Information
and Highly Sensitive Business Information in the Procedure under
Annex V of the SCM Agreement
C-13

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ANNEX C

EUROPEAN COMMUNITIES AND CERTAIN MEMBER STATES – MEASURES
AFFECTING TRADE IN LARGE CIVIL AIRCRAFT (WT/DS316)

PROCEDURE UNDER ANNEX V OF THE AGREEMENT
ON SUBSIDIES AND COUNTERVAILING MEASURES

Report to the Panel from the Facilitator

(24 February 2006)

A. B
ACKGROUND

1. On 20 July 2005, the Dispute Settlement Body ("DSB") established a Panel at the request of
the United States with respect to the above matter. In its request for establishment of a panel, the
United States invoked, inter alia, paragraph 4 of Article 7 of the SCM Agreement and requested that,
upon establishment of a panel in this matter, the DSB initiate the procedures provided for in Annex V
of the SCM Agreement, pursuant to paragraph 2 of that Annex.1

2. On 23 September 2005, the DSB initiated th e procedures for developing information
concerning serious prejudice under Annex V of the SCM Agreement , pursuant to paragraph 2 of
Annex V of the SCM Agreement, and designated Mr. Mateo Diego-Fernández as a representative to
serve the function of facilitating the information- gathering process, pursuant to paragraph 4 of
Annex V of the SCM Agreement.2

B. W
ORKING PROCEDURES

3. Annex V does not describe all aspects of the procedures for developing information
concerning serious prejudice. On 30 Septem ber 2005, Mr. Diego-Fernández (the "Facilitator")
adopted Working Procedures for the Annex V procedure
3 (the "Working Procedures") after consulting
upon them with the United States and the European Communities.

4. The Working Procedures provided for a round of questions and responses, and then a round
of follow-up questions and responses. In e ach round, the United States and the European
Communities would submit draft questions, comment on each other's draft questions and then pose
final versions of the draft questions. Upon review of the questions submitted by the parties, the
Facilitator would transmit questions that he cons idered necessary "to ensure the timely development
of the information necessary to facilitate expeditious subsequent multilateral review of the dispute" as
set out in paragraph 4 of Annex V. Questions c ould be addressed to third-country Members in the
initial round of questions. Each party and third-co untry Member would respond to each question, or
specify the reason why it did not respond, by a particular date.

1 Document WT/DS316/2. See also the minutes of the meetings of the DSB held on 13 June 2005
2 See the minutes of the meeting of the DSB held on 23 September 2005 (WT/DSB/M/197, paras. 6
and 9).
3 The Working Procedures, as modified, are contained in Attachment 1 to this report.

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5. Third-country Members were identified by the parties in their draft questions.4
6. The Working Procedures were transmitted to the parties upon adoption and to third-country
Members at the time of transmission of questions to such Members.

7. The Working Procedures were modified on va rious occasions after c onsultations with the
parties, in accordance with paragraph 16. On 4 N ovember 2005, at the request of the parties, the
Facilitator modified the date for submission of responses to initial questions in paragraph 6 by
postponing it one week. On 15 November 2005, at the request of the parties, the Facilitator modified
the method of delivery of responses in paragraph 12 to allow submissions to be made exclusively in
electronic form. On 24 November 2005, the Facilita tor modified the date for submission of draft
follow-up questions in paragraph 7 by postponi ng it one week, with additional time for those
questions which followed up on certain responses submitte d after the deadline. At the same time, the
Facilitator also eliminated the procedures for submission of comments on follow-up questions and
finalized versions in paragraphs 7 and 8, in order to avoid undue delays in the process. Modifications
to the Working Procedures were notified to the parties and to third-country Members upon adoption.

C. B
USINESS CONFIDENTIAL INFORMATION AND HIGHLY SENSITIVE BUSINESS INFORMATION

8. The Annex V process shall – pursuant to footnot e 67 of Annex V – take into account the need
to protect information which is by nature confiden tial or which is provided on a confidential basis by
any Member involved in this process. In this connection, and in light of the particularities of the large
civil aircraft ("LCA") industry, the need to estab lish rules for the enhanced protection of certain
information was recognized. Accordingly, paragra ph 17 of the Working Procedures provided for the
possibility of procedures for the protection of business confidential information. On 10 October 2005,
the European Communities requested that the F acilitator adopt additional procedures for the
protection of business confidential information and highly sensitive business information, and
submitted a set of draft procedures. At the inv itation of the Facilitator, the United States submitted
comments to this draft on 13 October 2005.

9. The Facilitator responded by suggesting ways to most efficiently solicit necessary information
as well as encourage the co-operation of the parties, consistent with paragr aph 4 of Annex V of the
SCM Agreement . Throughout the development of the pro cedures, the parties underlined that they
should be specifically tailored to the particular nature of the market for LCA. As this market has only
two producers and a limited number of major purchasers, the parties asserted that certain (e.g. price
and cost) data of the LCA producers in these disput es was extraordinarily and uniquely sensitive. It
was for this reason that, at the request of the parties, the F acilitator undertook to establish procedures
to protect this information that substantially ex ceeded the protections that prior WTO panels had
provided for certain kinds of information. On 19 October 2005, the Facilitator met the United States
and the European Communities, and on 21 October 2005, he posed a series of questions to both of
them. On 25 October 2005, the United Stat es and the European Communities responded to the
Facilitator's questions and, on 28 October 2005 , commented on each other's responses. On

4 The European Communities, in its draft questions (and in document WT/DS317/2), identified the
following 49 Members as third country Members: Arge ntina; Australia; Bahrain; Brazil; Brunei; Cameroon;
Canada; Chile; China; Colombia; Egypt; El Salvador; Fiji; Hong Kong, China; Iceland; India; Indonesia; Israel;
Japan; Jordan; Kenya; Kuwait; Madagascar; Malaysia; Mauritania; Mexico; Mongolia; Morocco; Namibia;
New Zealand; Norway; Oman; Pakistan; Panama; Peru; Philippines; Romania; Senegal; Singapore;
South Africa; Republic of Korea; Switzerland; Separate Customs Terr itory of Taiwan, Penghu, Kinmen
and Matsu; Thailand; Trinidad and Tobago; Tunisia; Turkey; United Arab Emirates and Venezuela.
The Facilitator sent the questions to all these 49 Members.

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1 November 2005, the Facilitator transmitted to the parties a set of draft procedures, on which the
parties commented on 3 November 2005.
10. On 4 November 2005, the Facilitator adopted the Procedures for the protection of business
confidential information and highly sensitive business information for the Annex V procedure 5 (the
"BCI/HSBI Procedures") in accordance with para graph 17 of the Working Procedures. The
Procedures were transmitted to the parties and third-country Members.

11. Briefly, the BCI/HSBI Procedures accord enha nced protection to information designated by a
Party or Third Country Member as "Business Confid ential Information" ("BCI") or "Highly Sensitive
Business Information" ("HSBI"). In respect of BCI, only "Approved Persons", designated under the
Procedures, may have access to such information, under specific conditions, and they must use such
information only for the purposes of the Annex V process. No Approved Person shall disclose BCI,
or allow it to be disclosed, to any person except another Approved Person. The Procedures also
restrict copying, transmission and storage of BCI. In respect of HSBI, the Procedures stipulate, in
addition, that HSBI shall be submitted to the WTO in electronic form, using locked CDs or two sealed
laptop computers, and stored at the special HSBI location at the WTO Secretariat. No HSBI
Approved Person shall disclose HSBI to any person except another HSBI Approved Person, and then
only for the purpose of the specific dispute in which it is being used. Except as otherwise provided,
HSBI shall not be stored, transmitted or copied e ither in written or electronic form. HSBI Approved
Persons of a Party may view HSBI on the Sealed laptop computer submitted by the other Party or, in
the case of HSBI submitted on Locked CDs on a Sta nd-alone computer, only in a designated room at
one of the HSBI locations, subject to certain conditions. All HSBI must be stored in a safe at the
relevant HSBI location.

D. P
ROCEDURAL ISSUES

1. Approved Persons

12. On 11 November 2005, pursuant to paragraph 23 of the BCI/HSBI Procedures, the
United States and the European Communities each submitted to the Facilitator a list of
Representatives and Outside Advisors who needed access to BCI and HSBI submitted by the other
party. On the same day, the designee of the Dir ector-General of the WTO submitted to the Facilitator
a list of Secretariat employees who needed access to BCI and HSBI in this dispute. On
18 November 2005 the United States revised its lis t by reducing the number of Representatives and
Outside Advisors who needed access to HSBI.
6

13. On 18 November 2005, in accordance with paragraph 26 of the BCI/HSBI Procedures, the
Facilitator designated as Approved Persons t hose persons included on the list submitted on
11 November 2005 by the United States, as confirmed on 18 November 2005; those persons included
on the list submitted on 11 November 2005 by the European Communities; and those persons
included on the relevant list submitted on 11 Novemb er 2005 by the designee of the Director-General
of the WTO. He indicated that HSBI Approved Persons were those Approved Persons specifically
designated as such on the list submitted by the United States on 18 November 2005
(16 Representatives and 12 Outside Advisors), on the list submitted by the European Communities on

5 The Procedures for the Protection of Busine ss Confidential Information and Highly Sensitive
Business Information for the Annex V Procedure are contained in Attachment 2 to this report.
6 The United States reduced its list in reaction to a comment from the European Communities received
on 18 November 2005, pointing out that the United States had proposed the maximum number of persons
possible under the BCI/HSBI Procedures, and that parties could not, in the future, give access to more persons
by withdrawing some of the currently approved persons.

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11 November 2005 (14 Representatives and 8 Outside Advisors) or by the designee of the
Director-General of the WTO on the list submitted on 11 November 2005, as well as himself.

14. On 5 January 2006, the European Communities notified the designation of two of its existing
Approved Persons as HSBI Approved Persons and the addition of three new persons to its list of
Approved Persons. On 9 January 2006, the United States expressly indicated that it did not object to
the designation of the two existing persons. On 27 January 2006, as no objection was received, one
additional person, who had been notified by the S ecretariat on 25 January, was added to its list of
Approved Persons.
2. Designation of information

15. On 10 January 2006, the United States form ally objected to the European Communities'
designation of certain information in 17 documents as highly sensitive business information. On
16 January 2006, the European Communities comment ed on the objections, at the invitation of the
Facilitator. On 3 and 13 February 2006, the Fac ilitator posed questions to the European Communities
concerning certain documents, without prejudice to th e status of any other documents. On 8 and
14 February 2006, the European Communities responded to the Facilitator's questions.

16. On 15 February 2006 the Facilitator communicat ed to the parties his view that, while he
rejected many of the US objections, he accepted the US objection that four documents or parts thereof
designated as HSBI by the European Communities may not be designated as HSBI and that the
European Communities should communicate in writi ng any action taken in lig ht of the Facilitator's
views and the BCI/HSBI Procedures by 20 February 200 6. On that date, the European Communities
requested the Facilitator to reconsider certain of his views, and the United States sent a related
communication on 21 February 2006. On 21 and 22 February, the Facilitator took note of the parties'
communications, confirmed his 15 February views and recalled his 15 February request that the
European Communities submit written confirmation of an y actions taken in light of those views. The
European Communities was also reque sted to inform him whether it had decided to redesignate or
withdraw the information concerned, so that he could act accordingly. On 22 February 2006, the
European Communities indicated, among other things, that, due to the sensitivity of the documents
concerned, "...the originators ha[d] indicated that th ey need a reasonable time to consider and discuss
internally how to best proceed. On the basis of th is, the EC s[aw] no other immediate solution than to
exclude the four documents concerned ... from th e batch of translations due [that] day."
The European Communities indicated that it was "working closely with the parties concerned to reach
a decision before the end of th[e] week", and requested the Facilitator to "hold off" on issuing his final
report until the classification issue was settled a nd all the translations had been submitted.
On 23 February, the Facilitator took note of the EC communication and indicated that he intended to
issue his report by 24 February 2006, and unless he heard otherwise from the European Communities
by a certain time on that day, he intended to de em the European Communities to have withdrawn the
information concerned. On 24 February, the European Communities designated two of the documents
concerned as BCI and withdrew the other two documents.

3. Other procedural issues

17. On 16 November 2005, pursuant to paragr aph 17(d) of the BCI/HSBI Procedures, the
European Communities designated the Brussels of fice of Sidley Austin Brown Wood LLP as an
additional Secure site for BCI. On 17 November 2005, pursuant to paragraph 17(d) of the BCI/HSBI
Procedures, the United States designated the Washingt on D.C. and Berlin offices of Wilmer Hale as
two additional Secure sites for BCI.

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18. On 18 November 2005, at the time of deliver y of responses, the Facilitator met with the
United States and the European Communities to discuss certain practical matters concerning the
smooth functioning of the Annex V process, includ ing the parties' proposed modification of the
timetable under the Working Procedures, as well as th e operation of the HSBI location at the WTO in
accordance with the BCI/HSBI Procedures.
19. On 25 November 2005, pursuant to paragraph 14 of the Working Procedures, the
United States requested that the European Communi ties provide English-language translations of all
the German language documents that it had provide d in its responses to questions and of all the
German language documents identified in Section VIII of the questions to the European Communities
(Questions Nos. 340-352). On 30 November 2005, the European Communities objected to the request
insofar as it related to publicly available official documents or websites to which the United States
allegedly already had at its di sposal before the Annex V process. After consulting with the
United States and the European Communities, on 5 December 2005 the Facilitator fixed a staggered
time-limit for the European Communities to provide the requested translations into English of
documents provided in response to questions as follows: 6 January 2006 (750 pages);
31 January 2006 (750 pages); and 22 February 2006 (remaining pages).

20. Over the course of the Annex V process, the United States and th e European Communities
each made a series of comments regarding alleged deficiencies in the responses submitted by the
other. The Facilitator took note of these comments.

E. EC
 MEMBER STATES

21. Four EC member States (France, Germany, Spain and the United Kingdom) are named as
respondents in the request for consultations and th e request for establishment of a panel in this
dispute. Much of the information developed in this procedure under Annex V may concern measures
of these four EC member States. However, wh ilst the European Communities spoke during the DSB
meetings which led to the initiation of this procedure under Annex V of the SCM Agreement and
communicated directly with the Facilitator during this procedure, the EC member States did not.

22. On 5 October 2005, in light of certain comments by the United States and the
European Communities on draft questions
7, the Facilitator wrote to the European Communities stating
that it was his understanding that in this pro cedure under Annex V, the European Communities
represented all five respondents in this dispute, namely itself, France, Germany, Spain and the
United Kingdom. Accordingly, he intended to tr ansmit questions to the European Communities on
behalf of all five respondents and expected that the European Communities would respond on behalf
of all five respondents.

23. On 6 October 2005, the European Communities replied that it was the proper respondent in
this case. It advised that it had never said that it "represent[ed]" its member States but took full
responsibility in these proceedings for the actions of its member States and would to the best of its
ability provide documents that were properly request ed wherever they might be located and trusted
that the United States would do the same. It al so considered that the term "and certain member
States" could be deleted from the title of the dispute.

24. On 5 December 2005, the United States a lleged that several responses submitted by the
European Communities were ambiguous because they referred to the "European Commission". The

7 The European Communities and the United States exchanged views about whom the questions should
be addressed to. (For example, the European Communities opined on this matter in its 29 September 2005
comments, and the United States, in turn, submitted its views in its 3 October 2005 comments).

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United States stated that it was seeking information in the possession of EC institutions as well as the
member States, all of which, in its view, were res pondents in the dispute in their own right. It asked
the Facilitator to send the questions directly to the member States themselves to ensure full and
adequate responses.

25. On 7 December 2005, the European Communities reiterated its view that it was the sole
respondent. It stated that it had internally closely cooperated with the member States and other bodies
concerned to ensure the timely development of in formation and would continue to do so throughout
the case. It recalled that the European Commission represented the European Communities before the
WTO but, for clarity, references to the "European Commission" should be read as
"European Communities". It asked the Facilitator to dismiss the United States' request.

26. In light of the above statements, the Facilitato r did not transmit any questions directly to the
EC member States but included several follow-up questions requesting docum ents and information
that could be expected to be in the possession of a particular EC member State but which had not been
provided by the European Communities in its responses to the original questions.

27. The Facilitator submits this report without pr ejudice to the issue whether France, Germany,
Spain and the United Kingdom are separate responde nts in this dispute represented by the
European Communities, or whether they are inco rporated within the Eu ropean Communities as the
sole respondent.

F. I
NFORMATION GATHERED

28. On 7 October 2005, in accordance with pa ragraph 5 of the Working Procedures, the
Facilitator transmitted 352 questions (many including sub-questions) to the European Communities,
115 questions (some including sub-questions) to the United States, and eight questions to
49 third-country Members identified by the parties.

29. The Facilitator did not transmit certain draft questions that he did not consider "necessary to
facilitate the expeditious subsequent multilatera l review of the dispute" in accordance with
paragraph 4 of Annex V of the SCM Agreement and paragraph 5 of the Working Procedures. Certain
of these draft questions were submitted by the European Communities, in particular 216 draft
questions addressed to the United States concerning the existence and amount of subsid ization of
Boeing by the United States and 54 draft questions addressed to Japan concerning the existence and
amount of subsidization of Boeing's component ma nufacturers by Japan. Certain draft questions
submitted by the United States were also excluded. The Facilitator also modified certain draft
questions in order to ensure "the timely developm ent of information" in accordance with paragraph 4
of Annex V of the SCM Agreement and paragraph 5 of the Working Procedures.

30. On 17 November 2005, the United States and the European Communities jointly informed the
Facilitator that they had agreed that neither of them would respond, in the Annex V process, to a
number of cost-related questions. As such, they provided a list of 24 questions or sub-questions posed
to the European Communities and 27 questions posed to the United States. They indicated that this
agreement did not affect the rights and obligatio ns of the parties to request and disclose any
information at a later stage in the dispute settlement proceeding.

31. On 18 November 2005, the European Communities and the United States provided responses
to questions and specified the reason why they did not respond to certain other questions. The
following third-country Members responded to questions posed to them – albeit with widely ranging
degrees of comprehensiveness – or specified the reason why they did not respond to some or all of the

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questions8: Argentina; Australia; Brazil; Canada; Chile; China; Colombia; El Salvador; Hong Kong,
China; Iceland; India; Indonesia; Israel; Japan; Jordan; Korea; Madagascar; Malaysia; New Zealand;
Norway; Panama; Peru; the Philippines; Romania; Singapore; Switzerland; the Separate Customs
Territory of Taiwan, Penghu, Kinmen and Matsu; Thailand; and Turkey.

32. On 9 December 2005, in accordance with pa ragraph 9 of the Working Procedures, the
Facilitator transmitted 280 follow-up questions (many including sub-questions) to the
European Communities and 31 follow-up questions to the United States.

33. The Facilitator did not transmit certain draft follow-up questions that he considered did not
ask for clarification or elaboration of responses pr ovided to the original questions, in accordance with
paragraph 7 of the Working Procedures.
34. On 22 December 2005, in accordance with paragraph 10 of the Working Procedures, the
European Communities and the United States provided responses to follow-up questions and specified
the reason why they did not respond to certain other follow-up questions.

35. On 6 and 31 January and 22 February 2006, the European Communities provided translations
into English of documents provided in response to questions, in accordance with the staggered
time-limits fixed by the Facilitator on 5 December 2005.
9

36. The questionnaires, replies to questionnaires, follow-up ques tions and replies to follow-up
questions constitute Annexes I – III to this report. However, the annexes omit information designated
as Business Confidential Information ("BCI") and Hi ghly Sensitive Business Information ("HSBI").
In accordance with paragraphs 30 and 40 of the Pr ocedures for the protection of business confidential
information and highly sensitive business information for the Annex V procedure, the Facilitator will
submit BCI and HSBI to the Panel once the Panel has adopted its own BCI and HSBI procedures.

ATTACHMENT 1

[Working Procedures, as modified]

ATTACHMENT 2

[BCI/HSBI Procedures]

ANNEX 1: INFORMATION SUBMITTED BY THE EUROPEAN COMMUNITIES
10

[Non BCI/HSBI CD-ROMs]

ANNEX 2: INFORMATION SUBMITTED BY THE UNITED STATES

8 The following 20 Members did not respond: Bahrain; Brunei; Cameroon; Egypt; Fiji; Kenya; Kuwait;
Mauritania; Mexico; Mongolia; Morocco; Namibia; Oman; Pakistan; Senegal; South Africa;
Trinidad and Tobago; Tunisia; United Arab Emirates and Venezuela.
9 See supra, para. 19.
10 {Footnote added for the Panel report.} Annexes 1-3 are not reproduced in the Panel report.

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[Non BCI/HSBI CD-ROMs]

ANNEX 3: INFORMATION SUBMITTED BY THIRD-COUNTRY MEMBERS

[Non BCI/HSBI CD-ROM produced by the Secretariat]

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ATTACHMENT 1

EUROPEAN COMMUNITIES AND CERTAIN MEMBER STATES –
MEASURES AFFECTING TRADE IN LARGE CIVIL AIRCRAFT
(DS316)

and

UNITED STATES – MEASURES AFFECTING TRADE IN
LARGE CIVIL AIRCRAFT
(DS317)

WORKING PROCEDURES FOR DEVELOPING INFORMATION
UNDER ANNEX V OF THE AGREEMENT ON SUBSIDIES
AND COUNTERVAILING MEASURES

(24 November 2005)

I. SCOPE OF THE PROCEDURES

1. These procedures apply to the development of information between the parties pursuant to
Annex V in disputes DS316 and DS317. These proce dures provide for the application of identical
rules and schedules for the separate Annex V processes that will develop the factual records in the
two disputes. It shall be without prejudice to the rights and obligations of the parties under the
SCM Agreement and the DSU, unless explicitly otherwise provided herein.

II. STEPS IN THE PROCEDURE

2. On 23 September 2005, each party submitted to th e other party and to the facilitator a draft of
the questions the party proposes be asked of the ot her party and of third-country Members. On
29 September 2005, each party submitted to the ot her party and to the facilitator comments on the
draft questions submitted by the other party on 23 September 2005.

3. At the request of a party, the facilitator may direct a question equivalent to one directed to
that party in the Annex V process in one dispute to the other party in the Annex V process in the other
dispute.

4. At the latest on 3 October 2005, each party will transmit to the other party and to the
facilitator a final version of its questions, which may incorporate revisions to reflect the other party's
comments and additional questions only in accordance with paragraphs 2 and 3.

5. Upon review of the questions submitted by the parties, and any comments submitted under
paragraph 2, the facilitator will transmit to the pa rties and to third-country Members any questions
that he considers necessary to ensure the timely de velopment of the information necessary to facilitate
expeditious subsequent multilateral review of the dispute, at the latest on 7 October 2005.

6. Each party / third-country Member will r espond to each question transmitted to it by the
facilitator pursuant to paragraph 5 or specify th e reason why it does not respond, at the latest on
18 November 2005.

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7. The parties may submit draft follow-up questions to each other at the latest on
5 December 2005, except as provided in paragraph 8. "Follow-up questions" are exclusively those
questions that ask for clarification or elaboration of responses provided under paragraph 6.
8. The European Communities may submit draft follo w-up questions that ask for clarification or
elaboration of responses provided by the Unite d States on 23 November 2005 at the latest on
7 December 2005.

9. Upon review of the follow-up questions s ubmitted by the parties, the facilitator will
endeavour to transmit to the parties the follow-up que stions that he considers necessary to ensure the
timely development of the information necessary to facilitate expeditious subsequent multilateral
review of the dispute at the latest on 9 December 2005.

10. Each party will respond to each follow-up ques tion transmitted to it by the facilitator, or
specify the reason why it does not respond, at the latest on 22 December 2005.

11. For ease of reference, when submitting docum ents annexed to responses to questions and
follow-up questions, parties and third-country Memb ers will number exhibits sequentially, with US
exhibit numbers prefixed with "US-" and EC exhibi t numbers prefixed with "EC-" (and third-country
Members using a suitable prefix).

12. Each party / third-country Member will file the submissions envisaged in these procedures
with the Secretariat (Mr. Ferdinand Ferranco (Office 3154)), by 5pm on the deadlines established by
the facilitator. In addition, each party must serve a single copy of the submissions envisaged in these
procedures on the other party, and third-country Members must serve single copies of their responses
on both of the parties.

13. The parties and third-country Members may file submissions with the Secretariat in hard copy
or electronic format. They will provide electronic copies of any hard copy submissions to the
Secretariat at the time they provide any such subm issions. Submissions in electronic format should,
if possible, be in a format compatible with that us ed by the Secretariat. If the electronic version is
provided by e-mail, it should be addressed to DSRe gistry@wto.org, and cc'd to guy.evans@wto.org,
hiromi.yano@wto.org and matthew.kennedy@wto.org . If a diskette or CD-ROM is provided, it
should be delivered to Mr. Ferdinand Ferranco. Each party will also provide electronic copies of their
submissions to the other party, and third-country Members will provide electronic copies of their
submissions to both parties.

14. A party / third-country Member submitting doc uments in response to a question or follow-up
question will provide a copy in the original language, it being understood that the party / third-country
Member will also submit an English version if one is available. Each party may request translations
into English of any document or information provide d in response to a question that is not submitted
in a WTO language as of 25 November 2005. Each pa rty may also request translations into English
of any document or information provided in response to a follow-up question that is not submitted in a
WTO language as of 9 January 2006. Any such tr anslations will be provided by the party /
third-country Member submitting the relevant documen t or information. The time limit for providing
these translations will be fixed by the facilitator.

15. The facilitator will transmit any responses su bmitted by parties and third-country Members,
as well as the requested documents and any translati ons thereof, taking account of the time that he
considers to be necessary for the translation of documents as set out in paragraph 14 above. The
facilitator will submit this information to each of the panels separately, but on the same day.

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III. FINAL CLAUSES

16. The facilitator may at any time modify these working procedures, including the timetable,
after consulting with the parties.

17. The parties may propose to the facilita tor procedures for the protection of business
confidential information during the present Annex V procedure. If the parties do so, the facilitator
will adopt procedures for the protection of business c onfidential information during the course of the
present Annex V procedure. The facilitator will be considered a "covered person" for purposes of
paragraphs II:1, III:1, III:2, VI:2, VI:5, VII:1, V II:2, VIII:1, VIII:2, and VIII:5 of the Rules of
Conduct, and will be subject to the same obligations as a panellist under paragraphs IV:1, VI:1(a);
VI:4(a), VIII:5, and VIII:7.

BCI deleted, as indicated [***]

ATTACHMENT 2

EUROPEAN COMMUNITIES AND CERTAIN MEMBER STATES –
MEASURES AFFECTING TRADE IN LARGE CIVIL AIRCRAFT
(WT/DS316)

and

UNITED STATES – MEASURES AFFECTING TRADE IN
LARGE CIVIL AIRCRAFT
(WT/DS317)

PROCEDURES FOR THE PROTECTION OF BUSINESS CONFIDENTIAL
INFORMATION AND HIGHLY SENSITIVE BUSINESS INFORMATION
IN THE PROCEDURE UNDER ANNEX V OF THE SCM AGREEMENT

(4 November 2005)

I. GENERAL

 These procedures do not diminish the rights and obligations of the parties to request and
disclose any information within the scope of A nnex V of the SCM Agreement and Article 13 of
the DSU.

II. DEFINITIONS

1. "Approved Persons" means:

(a) Representatives or Outside Advisors of a Party, or Employees of the Secretariat,
when designated in accordance with Section IV of these procedures; and

(b) the Facilitator.

2. "Business Confidential Information" or " BCI" means any business information that a
Party or a Third-country Member has "Designated as BCI" regardless of whether contained in a
document provided by a public or private body because it is not otherwise available in the public
domain. Each Party and Third-country Member shall act in good faith and exercise restraint in
designating information as BCI, and will endeavor to designate information as BCI only if its
disclosure would cause harm to the originators of the information.

3. "Conclusion of the Panel Process" means the earliest to occur of the following events:

(a) pursuant to Article 16.4 of the DSU, the Panel report is adopted by the DSB, or the
DSB decides by consensus not to adopt the report;

(b) pursuant to Articles 16.4 and 17.14 of the DSU, the Appellate Body report is adopted
and the Panel report is adopted as modified, if at all, by the Appellate Body report;

 (c) pursuant to Article 12.12 of the DSU, the authority for establishment of the Panel
lapses; and

BCI deleted, as indicated [***]

 (d) pursuant to Article 3.6 of the DSU, a mutually satisfactory solution is notified to
the DSB.
4. "Designated as BCI" means:

(a) for printed information, text that is set off with bold square brackets in a document
clearly marked with the notation 'BUSINESS CONFIDENTIAL INFORMATION'
and with the name of the Party or Th ird-country Member that submitted the
information; and

 (b) for electronic information, characters that are set off with bolded square brackets (or
with a heading with bolded square bracket s on each page) in an electronic file that
contains the notation 'BUSINESS CONFID ENTIAL INFORMATION', has a file
name that contains the letters "BCI", and is stored on a storage medium with a label
marked 'BUSINESS CONFIDENTIAL INFORM ATION' and indicating the name of
the Party or Third-country Member that submitted the information.

5. "Designated as HSBI" means electronic information in characters that are set off with
double bolded square brackets (or a heading with do uble bolded square brackets on each page) in an
electronic file that contains the notation 'H IGHLY SENSITIVE BUSINESS INFORMATION', has a
file name that contains the letters "HSBI", and is stored on a storage medium with a label marked
'HIGHLY SENSITIVE BUSINESS INFORMATION' a nd indicating the name of the Party or
Third-country Member that submitted the information.

6. "Electronic information" means any information stored in an electronic form (including but
not limited to binary-encoded information).

7. "Employee of the Secretariat" means a person employed or appointed by the Secretariat
who has been authorized by the Secretariat to work on the dispute.

8. "Facilitator" means the person designated by the DSB in accordance with paragraph 4 of
Annex V of the SCM Agreement.

9. "Highly Sensitive Business Information" or "HSBI" means any business information
regardless of whether contained in a document provi ded by a public or private body that a Party or
Third-country Member has "Designated as HSBI" becau se it is not otherwise available in the public
domain and its disclosure could, in the Party's or Third-country Member's view, cause exceptional
harm to its originators. Each Party and Third-country Member shall act in good faith and exercise the
utmost restraint in designating information as HSBI. Each Party and Third-country Member may at
any time designate as non-BCI/HSBI or as BCI informa tion designated by that Party or Third-country
Member as HSBI.

 (a) The following categories of information may be Designated as HSBI:

(i) information indicating the actual selling or offered price of any large civil
aircraft (LCA) manufacturer's products or services
1, and, except as provided

1 This category includes (but is not limited to) information on individual LCA prices, prices per seat, or
information allowing the operating cost per seat of an LCA to be determined, calculated or reflected; the
negotiated or offered prices for the airframe; all concessions offered or agreed to by an LCA manufacturer
including financing, spare parts, maintenance, pilot training, asset value and other guarantees, buy back options,
remarketing arrangements or other forms of credit support . This category shall also include the actual pricing

BCI deleted, as indicated [***]

in subparagraph (d)(i) below, any gra phs or other use of the data which
reflect the movement of prices, prici ng trends or actual prices of an LCA
model or a family of LCA;
(ii) information gathered or produced in the context of LCA sales campaigns;

(iii) information concerning market fo recasts, analyses, business plans and
share/business valuations generate d by LCA producers, consultants,
investment banks or the European In vestment Bank, with regard to LCA
products; or

(iv) information concerning an LCA manufact urer's costs of production, including
but not limited to data regarding pricing by suppliers.

(b) Each Party may also designate as HSBI other categories of business information that
is not otherwise available in the public dom ain and the disclosure of which could, in
the Party's view, cause exceptional harm to its originators. In case the other Party
objects to the designation of such informati on as HSBI, the dispute shall be resolved
by the Facilitator. If the Facilitator disag rees with designation of information as
HSBI, the submitting Party may either designate it as BCI, as non-BCI/HSBI or
withdraw the information. The Facilitator shall either destroy such information or
return it to the submitting Party. Each Party may at any time designate as
non-BCI/HSBI or as BCI information previously designated by that Party as HSBI.

(c) Each Party shall Designate as HSBI an y information described in subparagraph (a)
that pertains to LCA produced by an LCA manufacturer headquartered within the
territorial jurisdiction of the other Party.

 (d) The following categories of information may not be Designated as HSBI:

(i) aggregated pricing data for a particul ar LCA model or family of LCA within
a particular market that is indexed ( i.e., does not reflect actual prices but
rather movements in prices off a base of 100 for a particular year). Such data
shall be treated as BCI;

(ii) general legal conclusions based on HS BI (e.g., that HSBI demonstrates that a
producer engaged in price undercutting). Such conclusions shall be treated as
neither BCI nor HSBI;

(iii) contracts on the granting of launch aid or reimbursable launch investment and
project appraisal documents relating thereto, other than information described
in subparagraph (a);

(iv) the terms and conditions of loans, other than information described in
subparagraph (a); and

(v) intergovernmental agreements a nd government decisions, other than
information described in subparagraph (a).

information relating to any number of individual LCA offers and prices (including concessions) aggregated by
model or other category.

BCI deleted, as indicated [***]

(e) Information may not be Designated as HSBI simply because it is subject to bank
secrecy or banker-client confidentiality.

10. "HSBI Approved Person" means Approved Persons specifically designated by the Parties
and the Director-General of the WTO or his designee as having the right to access HSBI (according to
the procedures laid down in Section IV), as well as the Facilitator.

11. "HSBI location" means a room to be kept locked when not occupied and the access to which
shall be possible only for HSBI Approved Persons, located:
(a) for the HSBI submitted by the United St ates, the European Communities and any
Third-country Members, on the premises of the WTO (Centre William Rappard,
Rue de Lausanne 154, Geneva, Switzerland);

(b) for HSBI submitted by the United States, on the premises of the United States
Mission to the European Union in Brussels;

(c) for HSBI submitted by the European Comm unities, on the premises of the Delegation
of the European Commission to the United States in Washington;

(d) for HSBI submitted by a Third-country Member, on the premises of its Geneva
Mission to the WTO, should that Third-country Member so wish.

12. "Locked CD" means a CD-ROM that is not rewritable.

13. "Outside Advisor" means a legal counsel or other advisor of a Party, who:

 (a) advises a Party in the course of the dispute;

(b) is not an employee, officer or agent of an entity or an affiliate of an entity engaged in
the manufacture of LCA, the provision of supplies to an entity engaged in the
manufacture of LCA, or the supply of air transportation services; and

(c) is subject to an enforceable code of professional conduct that includes an obligation
to protect confidential information, or has been retained by another outside advisor
who assumes responsibility for compliance with these procedures and is subject to
such a code of professional conduct.

For purposes of this paragraph, outside le gal counsel representing an LCA producer
headquartered in the territory of one of the Parties in connection with these proceedings or
outside consultants who have been retained by such counsel to provide advice with regard to
these proceedings are not considered agents of an entity listed in subparagraph (b).

14. "Party" means the European Communities or the United States.

15. "Representative" means an employee of a Party.

16. "Sealed laptop computer" means a laptop computer having (software and hardware)
characteristics considered necessary by the submitting Party for protection of that HSBI, provided that
it has software installed that permits such HSBI to be searched and printed in accordance with
paragraph 37. However, HSBI may not be edited on the sealed laptop computer.

BCI deleted, as indicated [***]

17. "Secure site" means a facility to be kept locked wh en not occupied and the access to which
shall be possible only for Approved Persons, located:

(a) in the case of the Facilitator and the Secretariat, on the premises of the WTO
(Centre William Rappard, Rue de Lausanne 154, Geneva, Switzerland);

(b) in the case of the European Communities, th e offices of External Relations Team of
the Legal Service of the European Commission (Rue de la Loi 200, Brussels,
Belgium), the offices of Directorate Gene ral for Trade of the European Commission
(Rue de la Loi 170, Brussels, Belgium), the offices of the Permanent Delegation of
the European Communities to the International Organisations in Geneva (Rue du
Grand-Pré 66, 1202 Geneva, Switzerland), and one additional site specified in
accordance with subparagraph (d);

(c) in the case of the United States, the offi ces of the General Counsel of the Office of
the United States Trade Representative (600 17
th Street, NW, Washington, DC,
USA), the offices of the United States International Trade Commission (500 E Street,
S.W., Washington, DC, USA) the Mission of the United States to the World Trade
Organization (11, route de Pregny, 1292 Chambésy, Switzerland), and one additional
site specified in accordance with subparagraph (d); and

(d) two sites other than a government office that are designated by each Party for use by
its Outside Advisors; provided that the iden tity of those sites has been submitted to
the other Party, the Facilitator, and the othe r Party has not objected to the designation
of that site within ten days of such submission.

 Any objections raised under subparagraph (d) may be resolved by the Facilitator.

18. "Stand-alone computer" means a computer that is not connected to a network.

19. "Stand-alone printer" means a printer that is not connected to a network.

20. "Third-country Member" means Members to whom questi ons have been submitted by the
Facilitator in accordance with paragraph 3 of Annex V of the SCM Agreement.

III. SCOPE

21. These procedures apply to all BCI and HSBI received by an Approved Person as a result of
the Annex V procedures. Unless this Understanding specifically provides otherwise, these procedures
do not apply to a Party's treatment of its own BCI and HSBI.

22. The Facilitator is aware that, in order to respond fully to all questions, the United States may
need to submit information pertaining to United States Special Access Programs, and/or information
that it internally classifies as "Top Secret", "S ecret", or "Confidential". Similarly, the
European Communities may need to submit info rmation that it internally classifies as
"EU Top Secret", "EU Secret" or "EU Confidentia l". The Facilitator will to the extent possible
implement procedures for the protection of such classi fied information in the event that either Party
informs the Secretariat that it will be submitting such classified information in the context of the
present Annex V procedure and has not already designated it as BCI or HSBI. In such cases, the
submitting Party shall propose appropriate procedures for the protection of such classified
information.

BCI deleted, as indicated [***]

IV. DESIGNATION OF APPROVED PERSONS

23. At the latest on 11 November 2005, each Part y shall submit to the other Party, and to the
Facilitator a list of the names and titles of its Re presentatives and Outside A dvisors who need access
to BCI and HSBI submitted by the other Party an d whom it wishes to have designated as Approved
Persons for either DS316 and/or DS317, along with any clerical or support staff that would have
access to the BCI and HSBI.

24. Each Party shall keep the number of Approve d Persons as limited as possible. Each Party
may designate no more than a combined total of 20 Representatives and 15 Outside Advisors as
"HSBI Approved Persons" for both disputes.

25. The Facilitator shall have access to BCI and HSBI . The Director-General of the WTO, or his
designee, shall submit to the Parties, and the Facilita tor, a list of the employees of the Secretariat who
need access to BCI and/or HSBI for each dispute.

26. Unless a Party objects to the designation of an Outside Advisor of the other Party or an
Employee of the Secretariat, the Facilitator sha ll designate those persons as Approved Persons. A
Party also may object within ten days of becoming aware of information that was not available to the
Party at the time of the filing of a list under paragraphs 23 or 25 that would suggest that designation of
an individual is not appropriate. If a Party object s, the Facilitator shall decide on the objection within
ten days.

27. An objection may be based on the failure to sa tisfy the definition of "Outside Advisor" or on
any other compelling basis, including conflicts of interest.

28. The Parties or the Director-General of the WTO, or his designee, may submit amendments to
their lists at any time, subject to objections for the addition of new Approved Persons in accordance
with paragraph 27.

V. BCI

29. To the extent possible, BCI should be submitte d in an exhibit or annex to a response to an
Annex V question or to a submission. An entir e response to an Annex V question or an entire
submission, or significant parts thereof, may be designated as BCI only when necessary.

30. Only Approved Persons may have access to BCI submitted in each of these proceedings.
Approved Persons shall use BCI only for the purposes of the Annex V process. No Approved Person
shall disclose BCI, or allow it to be disclosed, to any person except another Approved Person. The
Facilitator is entitled to disclose BCI information to the members of each Panel, once these have
adopted their own procedures on BCI.

31. A Party shall make no more than one copy of any BCI submitted by the other Party and any
Third-country Member for each Secure site provided for that Party in paragraph 17.

32. BCI submitted pursuant to these procedures shall not be copied, distributed, or removed from
the Secure site, except as necessary for submission to the Panel in accordance with paragraph 5 of
Annex V of the SCM Agreement.

33. Parties may incorporate BCI in internal memoranda for the exclusive use of Approved
Persons. Any memorandum and the BCI it contains shall be marked in accordance with paragraph 4.

BCI deleted, as indicated [***]

34. Any document or annex referenced in para graph 33 shall not be copied in excess of the
number of copies required by the Approved Persons. All copies of such documents or annexes shall
be consecutively numbered. The making of electronic copies shall be avoided whenever possible.
Such documents may be transmitted electronically only by using secure e-mail. Unless the submitting
Party agrees otherwise, original documents containi ng the information designated as BCI shall not be
transmitted electronically, and shall be viewed only on a Stand-alone computer and printed on a
Stand-alone printer. If a Party submits to the Facilitator an original document that cannot be
transmitted electronically, it shall on the day of submission deliver a copy of that document to the first
secure site listed for the other Party in paragraph 17.

35. Approved Persons shall store BCI only in lo cked security containers. BCI shall be
appropriately protected against improper inspection and eavesdropping when being consulted and will
be transmitted in sealed heavy duty double envelopes only. All work papers (e.g., draft submissions,
worksheets, etc.) containing BCI shall, when no long er needed, be shredded or burned consistent with
normal government practice for destroying sensitive documents.

VI. HSBI

36. Unless otherwise provided below, HSBI shall be subject to all the restrictions in Section V
applicable to BCI.

37. HSBI shall be submitted to the WTO in electronic form, using locked CDs or two Sealed
laptop computers connectable to 19" - 21" monitors.
2 HSBI shall be stored at the HSBI location
indicated in paragraph 11a) and shall be made available for viewing and use by HSBI Approved
Persons pursuant to paragraph 39 belo w. Each Party shall maintain an additional copy (electronic or
hard) of the HSBI it submits to the WTO for access by HSBI Approved Persons acting on behalf of
the other Party in the HSBI location listed in paragr aph 11 located within its territory. A Stand-alone
printer may be used to make hard copies of any HSBI. Such hard copies shall be made on
distinctively colored paper and marked in accordance with paragraph 5. Such hard copies shall either
be stored in a safe at the relevant HSBI location, or destroyed at the end of the relevant working
session.

38. Except as otherwise provided in these procedur es, HSBI shall not be stored, transmitted or
copied either in written or electronic form.

39. HSBI Approved Persons of a Party may view HSBI on the Sealed laptop computer submitted
by the other Party or, in the case of HSBI subm itted on Locked CDs on a Stand-alone computer, only
in a designated room at one of the HSBI loca tions indicated in paragraph 11, unless otherwise
mutually agreed by the Parties. The designated r oom shall be available to HSBI Approved Persons
from 9:00 a.m. to 5:00 p.m. during official working days at the respective HSBI location, except at the
location indicated in paragraph 11a) where the room will also be available during weekends to the
Facilitator and HSBI Approved Persons designated by the Director-General of the WTO or his
designee. HSBI Approved Persons may not bring into that room any electronic recording or
transmitting devices. HSBI Approved Persons may not remove HSBI from that room, except in the
form of handwritten notes or aggregated information generated on a Stand-alone computer. In either
case, such notes or information shall be used exclusiv ely for the individual dispute in connection with
which the HSBI has been submitted. Each pers on viewing the HSBI in the HSBI location shall
complete and sign a log identifying the HSBI that the person reviewed or, alternatively, such a log can
be generated automatically. Each Party shall, for th e HSBI location within its territory referenced in
paragraph 11, maintain such log until one year af ter the Conclusion of the Panel Process. Before

2 Only Locked CDs may be used for HSBI submitted by a Third-country Member.

BCI deleted, as indicated [***]

entering and when leaving the room, Outside A dvisors who are HSBI Approved Persons may be
subject to appropriate controls. Viewing of HSBI at the location indicated in paragraph 11(a) by
HSBI Approved Persons designated by the Parties shall be conducted under the observation of a WTO
security guard or employee.

40. No Approved Person shall disclose HSBI to any person except another HSBI Approved
Person, and then only for the purpose of the specific dispute in which it is being used. The Facilitator
is entitled to submit HSBI to each Panel pursuant to paragraph 5 of Annex V of the SCM Agreement,
once that Panel has adopted its own HSBI procedures.

41. HSBI may be processed only on Stand-alone co mputers. Any memorandum or appendix to a
submission containing HSBI shall not be transmitted electronically, whether by e-mail, facsimile, or
otherwise.

42. All HSBI shall be stored in a safe at the relevant HSBI location.
VII. RESPONSIBILITY FOR COMPLIANCE

43. Each Party is responsible for ensuri ng that its Approved Persons and designated
Representatives comply with these procedures to prot ect BCI and HSBI submitted by each Party, as
well as with enforceable codes of professional conduct to which its approved persons or other outside
advisors are subject. The Secretariat is responsible for ensuring that its employees comply with these
procedures to protect BCI and HSBI submitted by a Party or Third-country Member and for adhering
to the requirements to provide access in the WTO to Approved Persons and to control the use by
HSBI Approved Persons when reviewing the materi al in the WTO premises. The Facilitator shall
comply with these procedures to protect BCI and HSBI submitted by a Party or Third-country
Member.

VIII. ADDITIONAL PROCEDURES

44. After consulting with the Parties, the Fac ilitator may apply any other additional procedures
that he considers necessary to provide additional pr otections to the confidentiality of BCI or HSBI or
other types of information not explicitly covered by these Procedures. In the event that the Facilitator
applies additional procedures or modifies these proce dures as applied in that dispute, the Parties will
endeavour to obtain adoption of the same procedures in the other dispute.

45. The Facilitator may, with the consent of both Parties, waive any part of these procedures.
Such "waiver" shall be specifically set forth in writing and signed by a representative of both Parties.

IX. RETURN AND DESTRUCTION

46. After the Conclusion of the Panel Process, within a period fixed by the Facilitator,
the Facilitator, the Secretariat and the Parties (a long with all Approved Pe rsons) shall return all
documents (including electronic material) or othe r recordings containing BCI to the Party or
Third-country Member that submitted such docum ents or other recordings. The Facilitator,
Secretariat, and the Parties shall destroy and/or re turn any electronic material submitted by a Party or
Third-country Member that contains HSBI.

47. The hard drive of all Stand-alone computers and all media used to b ack up such computers
shall be destroyed at the Conclusion of the Panel Process.