DS: United States — Conditional Tax Incentives for Large Civil Aircraft

This dispute concerns legislation enacted in the state of Washington in the United States in November 2013 through Engrossed Substitute Senate Bill 5952 (ESSB 5952), which amended and extended various tax incentives for the aerospace industry. The European Union identified seven separate tax incentives, including a reduced business and occupation tax rate, credits against business taxation, and exemptions from various other taxes in the state of Washington.

The European Union claimed that those tax incentives are prohibited under Articles 3.1(b) and 3.2 of the SCM Agreement as subsidies that are contingent on the use of domestic over imported goods. According to the European Union, the contingency results from two siting provisions contained in ESSB 5952, namely a First Siting Provision and a Second Siting Provision. In the European Union's view, the challenged aerospace tax measures are de jure contingent upon the use of domestic over imported goods inasmuch as the text of the relevant legislation sets out the prohibited contingency. The European Union also made a secondary claim that the aerospace tax measures are de facto contingent upon the use of domestic over imported goods.

The Panel found that, under each of the aerospace tax measures at issue, there is a financial contribution by the Washington State government and a benefit is thereby conferred. The Panel concluded therefore that each of the aerospace tax measures at issue constitutes a subsidy within the meaning of Article 1 of the SCM Agreement.

With respect to the European Union's de jure claim against the aerospace tax measures at issue, the Panel looked separately at the First Siting Provision and the Second Siting Provision contained in ESSB 5952, to assess whether the European Union had successfully demonstrated the existence of the prohibited contingency in either of the provisions. In this regard, the Panel concluded that the European Union had not demonstrated that, on their own, and based on their express terms, the First Siting Provision or the Second Siting Provision make the challenged aerospace tax measures de jure contingent upon the use of domestic over imported goods.

The Panel subsequently considered the two siting provisions acting jointly and concluded that the European Union had not demonstrated that, acting together, the First Siting Provision and the Second Siting Provision make the challenged aerospace tax measures de jure contingent upon the use of domestic over imported goods.

With respect to the European Union's de facto claim against the aerospace tax measures at issue, the Panel considered the joint operation of the First Siting Provision and the Second Siting Provision contained in ESSB 5952, to assess whether the European Union had successfully demonstrated the existence of the prohibited contingency. The Panel concluded that the siting provisions in ESSB 5952, and in particular the prospective modalities of operation of Washington State Department of Revenue's discretion under the Second Siting Provision, make one of the challenged aerospace tax measures (namely, the reduced business and occupation tax rate for the manufacturing or sale of commercial airplanes under the 777X programme) de facto contingent upon the use of domestic over imported goods within the meaning of Article 3.1(b) of the SCM Agreement.

Having found that the reduced business and occupation tax rate for the manufacturing or sale of commercial airplanes under the 777X programme is inconsistent with Article 3.1(b) of the SCM Agreement, the Panel also found that the United States has acted inconsistently with Article 3.2 of the SCM Agreement.

The United States appealed the Panel's finding that, with respect to the First and Second Siting Provisions, considered jointly, the business and occupation (B&O) aerospace tax rate is a subsidy de facto contingent upon the use of domestic over imported goods under Article 3.1(b) of the SCM Agreement. For its part, the European Union appealed the Panel's findings that the European Union did not demonstrate that the First and Second Siting Provisions, considered separately or jointly, make the United States' aerospace tax measures de jure contingent, or that the First Siting Provision makes such measures de facto contingent, upon the use of domestic over imported goods under Article 3.1(b) of the SCM Agreement.

In addressing the European Union's interpretation claims, the Appellate Body ruled that the Panel, in its de jure contingency analyses of the First and Second Siting Provisions, did not articulate a legal standard under Article 3.1(b) of the SCM Agreement requiring the use of domestic goods to the complete exclusion of imported goods. Neither did the Panel articulate such a legal standard in assessing the de facto contingency of the First Siting Provision. The Appellate Body therefore rejected the European Union's claims that the Panel erred in its interpretation of Article 3.1(b) in the context of its de jure contingency analyses of the First and Second Siting Provisions, as well as its de facto contingency analysis of the First Siting Provision.

The Appellate Body rejected the European Union's claim that the Panel erred in its application of Article 3.1(b) of the SCM Agreement in finding that the First Siting Provision does not make the aerospace tax measures de jure contingent upon the use of domestic over imported goods. The Appellate Body also rejected the European Union's claim that the Panel erred in its application of Article 3.1(b) by unduly restricting the scope of the evidence from which it assessed de jure contingency with respect to the Second Siting Provision. In addition, the Appellate Body did not consider that the Panel committed error under Article 11 of the DSU in setting out the scope of application of the Second Siting Provision.

In addressing the appeal by the United States, the Appellate Body considered that the Panel did not properly establish that the Second Siting Provision entails a de facto condition requiring the use of domestic over imported goods. The Appellate Body did not consider that the Panel's analysis and reasoning provided a sufficient basis for its finding that the Second Siting Provision makes the B&O aerospace tax rate de facto contingent upon the use of domestic over imported goods. Therefore, the Appellate Body reversed the Panel's finding that the B&O aerospace tax rate is a prohibited subsidy under Article 3.1(b) of the SCM Agreement.

Having reversed the Panel's sole finding of inconsistency under Article 3.1(b) of the SCM Agreement, the Appellate Body made no recommendation in this dispute.