14 December 1989

1. On 19 February and 19 April 1988 the United States and the European Economic Community (the Community) held consultations pursuant to Article XXIII:1 on the Community's payments and subsidies paid to processors and producers of oilseeds and related animal-feed proteins. As these consultations did not result in a satisfactory resolution of the matter, the United States, in a communication dated 22 April 1988, requested the CONTRACTING PARTIES to establish a panel to examine the matter under Article XXIII:2 (L/6328).

2. This communication cites the following as being among the United States major concerns with regard to the matter referred to the CONTRACTING PARTIES:

3. Following discussion of the matter at its meeting on 4 May 1988 and a further round of Article XXIII:1 consultations on 6 June 1988, the Council agreed, at its meeting on 15-16 June 1988, to establish a panel and authorized the Council Chairman to draw up terms of reference and to designate the Chairman and members of the Panel in consultation with the parties concerned (C/M/222).

4. On 1 June 1989 the Council was informed that agreement had been reached on the following terms of reference and panel composition (C/166):

"To examine, in the light of the relevant GATT provisions, the matter referred to the CONTRACTING PARTIES by the United States in document L/6328 and to make such findings as will assist the CONTRACTING PARTIES in making the recommendations or in giving the rulings provided for in Article XXIII:2."

Chairman: Mr. Michael D. Cartland

Members:

Mr. Jànos Nyerges

Mr. Pierre Pescatore

5. The Panel met with the parties to the dispute on 27 June and 21 September 1989. It met on 20 September 1989 to consider submissions made by interested third parties. It submitted its report to the parties to the dispute on 30 November 1989.

6. The order in which the factual aspects are presented is intended to facilitate CONTRACTING PARTIES' understanding of the matters in dispute and is without prejudice to the arguments of the parties or to the order in which they are considered by the Panel.

7. The United States complaint relates to Community payments and subsidies paid to processors and producers of oilseeds and related animal-feed proteins. These products are defined in the United States submission as including rapeseed, sunflowerseed and soyabeans and related meals, peas, beans, lupines and skim milk powder. The main products in question are soyabeans, rapeseed, sunflowerseed and the meals derived from these oilseeds.

8. These oilseeds are extensively traded because of the high-quality oils they produce and, equally importantly, because of their protein content. The protein-rich meals derived from the crushing of these oilseeds are used in the manufacture of compound animal feeds. The growth in Community consumption of these protein-rich products has gone hand in hand with an increasing and relatively high rate of incorporation of these meals in compound animal feeds and with the expansion of intensive livestock industries within the Community.

9. The tariff treatment accorded by the Community to imports of soyabeans, rapeseed, sunflowerseed and oilcakes or meals as provided for in the current Schedule of Concessions of the Community (Schedule LXXX-EEC) are:

10. These concessions were originally negotiated as concessions of the Community (EC-6) under Article XXIV:6 in the course of the 1960-61 Geneva Tariff Conference, the Dillon Round, and were bound pursuant to Article II of the General Agreement in Part I of the Schedule of Concessions of the European Economic Community (XL) annexed to the July 1962 Protocol Embodying the Results of the 1960-61 Tariff Conference. This Protocol entered into force for the Community on 12 January 1963. These concessions have been extended and applied by the Community following its successive enlargements and related negotiations under Article XXIV:6 (see paragraphs 71 et seq. regarding the effect of the Article XXIV:6 negotiations on the status of the concessions). The United States has Initial Negotiating Rights in respect of the bindings on soyabeans and, in conjunction with Canada and Uruguay, on oilcakes.

11. The tariff treatment provided for in the Schedules of Concessions of the individual Member States of the Community prior to the establishment of the original Schedule of Concessions of the Community (XL) comprised, according to available sources, a range of bindings on the products in question, including duty-free bindings on soyabeans, except France (bound at 5 per cent); bindings on rapeseed (colza) in France (10 per cent subject to a minimum charge), Germany (duty free) and in Italy (10 per cent); bindings on sunflowerseed in France and Italy (10 per cent) and Germany (duty free); and duty-free bindings on oilcakes in the Benelux countries and Germany, and at 8 per cent in France in respect of soyacake. Other access measures included, inter alia, an import monopoly in France, quantitative restrictions and minimum import price arrangements in Italy and an import levy in the Netherlands.

12. The basic arrangements for a common organization of the Community market in oils and fats were adopted as EEC Regulation 136/66 in September 1966.

13. These arrangements were to supersede a diverse range of support measures applied by individual Member States. In summary, these measures included, inter alia, a system of maximum/minimum prices for oilseeds in France, with related intervention purchasing arrangements; in Germany, arrangements funded in part by a tax on the margarine industry under which domestic rapeseed prices were aligned with world market prices; in Italy, mixing regulations and stocking arrangements; and in the Netherlands a system under which the proceeds of a levy were used to pay a disparity allowance on certain oilseeds.

14. The following paraphrases the more important general considerations leading to the adoption of the Community oilseeds régime as recited in the preamble to Regulation 136/66:

(i) the Community market is characterized by high demand and low overall production and Member States depend to a large extent on world market supplies; this situation generally justifies the removal of the various import barriers and their replacement by the Common Customs Tariff which makes it easier for industries to obtain supplies by allowing raw materials to enter the Community duty free;

(ii) taking international commitments into account, provision must be made for appropriate measures to remedy the situation in which the removal of import barriers would leave the Community market in oilseeds without defence against seriously prejudicial disturbances caused either by imports or by disparities, resulting from the action of third countries, between prices for products derived from oilseeds and prices for these oilseeds;

(iii) because of the situation on the world market, certain sectors of agricultural and industrial production in the Community would be adversely affected if the effects of the removal of import barriers were not offset by other measures; oils and oilseeds (other than olive oil and olives) are in direct competition with oils and oilseeds imported from third countries at a reduced rate of duty or duty free;

(iv) growing oilseeds, in particular colza, rape and sunflowerseeds, contribute to the viability of farms by making it possible to improve technical and financial equilibrium and it is therefore necessary to support these activities by appropriate measures; to this end the marketing of Community crops of these products must ensure producers a fair income, the level of which may be determined by a target price in the case of oilseeds, with the difference between this price and prices acceptable to the consumer representing the subsidy which should be granted to attain the desired objective;

(v) farmers can be protected against any risks which may arise, despite the proposed system of subsidies, from the unsettled state of the market by intervention machinery involving the buying-in at intervention prices which must, because the area of production is extensive and the processing centres few, be fixed in the light of natural conditions of price formation;

(vi) the list of seeds to be covered by the system must be drawn up in such a way as to include the species which are most widely grown at the present time, with provision being made for the possibility of extending the system to other seeds where experience shows this to be necessary.

15. As explained by the Community in response to a question put by the Panel the objectives of the common organization of the market were established in order to take account of the realities of the Community situation. The first objective involved trade and was to ensure, given the Community's low overall production and high demand, access to supplies at reasonable prices by opting for opening to world markets and freedom of trade. The second objective was to support Community production and to ensure its necessary protection against market disruption by the grant of a production aid to offset the difference between the price guaranteed to producers, which itself was protected by intervention machinery, and the price acceptable to the consumer, namely, the world market price. It was explained that the system of subsidies or production aids therefore formed part of a set of measures which from the outset accompanied and permitted opening of the Community market to world supplies, and which have the effect of reconciling market opening with support of domestic production and income of the producers concerned.

16. The arrangements introduced by Regulation 136/66 in respect of rapeseed and sunflowerseed consist of a system of target and intervention prices, with a subsidy being payable on oilseeds harvested and processed within the Community equal to the difference between a calculated world market price and the target price (where the latter price is higher than the former).

17. In terms of the basic Regulation target prices are fixed at a level "which is fair to producers, account being taken of the need to keep Community production at the required level" (Article 23). The intervention price for a normal crop year is the target price less deductions to take account of market fluctuations and of forwarding oilseeds to zones where they are to be utilized (Article 24). Bonus target and intervention prices have been applicable to "double zero" rapeseed since the 1986/87 marketing year. Target and intervention prices are fixed at the wholesale marketing stage (Article 22:2). Provision is made for monthly increments in target and intervention prices from the fourth or fifth month of the marketing year onwards to enable sales to be staggered (Article 25). Data on the evolution of institutional prices for oilseeds, as submitted by the Community, are set out in Annex A.

18. The subsidy payable where the target price is higher than the calculated world market price is granted to or through the processing industry in order to compensate for the additional cost involved in purchasing Community-produced oilseeds at the target price or at prices that are higher than the intervention price. Formally, payment is made to the holder of a certificate, in most cases the processor, which confirms that the oilseed is eligible for aid and has been processed in the Community. Provision is also made for the advance fixing of the amount of the subsidy.

19. The amount of the subsidy is a matter for determination by the Commission (Article 27:4). Article 29 provides "that the world market price, calculated for a Community frontier crossing point (Rotterdam) shall be determined on the basis of the most favourable purchasing opportunities, prices being adjusted where appropriate, to take the price of competing products into account".

20. The criteria for determining the world market prices of rapeseed and sunflowerseed are laid down in Regulation 115/67 and related Regulations. Provision is made for account to be taken of offer prices on the world market as well as prices quoted on the major commodity markets, with the world market price being determined by the Commission on the basis of the most favourable real purchasing opportunities, excluding offers or prices where shipment would not be carried out within a specified period or which are not considered as representative of real market trends (Article 1). Where the available information is inadequate provision is made for the world market price to be determined or re-constructed on the basis of the value of the average quantities of oil and meal obtained within the Community from 100 kilogrammes of oilseeds after deduction of processing costs, or, if such values cannot be established, by applying the same formula on the basis of last known values for oil and meals adjusted to take account of trends in world prices for competing products (Articles 2 and 3). Provision is also made for adjustments to the calculated world market price to take account of certain price differentials, between rapeseed or sunflowerseed and other oilseeds, which could affect the normal marketing of oilseeds harvested in the Community (Article 6).

21. In practice and because of the availability or reliability of quoted prices the method used by the Commission to calculate the amount of the subsidy is based on oilseed prices reconstructed from recorded Rotterdam prices of oil and oilcake, with adjustments being made pursuant to the relevant provisions of EEC Regulation 115/67. The explanatory notes provided by the Community on the calculation of the aid for June 1989 in respect of sunflowerseed and rapeseed are reproduced in Sections I and II of Annex B. Corresponding data on an annual basis submitted by the Community at the request of the Panel are reproduced in Annexes C.1 and C.2. Data submitted by the United States on EEC and world market prices for rapeseed and sunflowerseed are reproduced in Annexes D.1 and D.2.

22. Subsidies on the production of soyabeans were first introduced by the Community in 1974. EEC Regulation 1900/74 of July 1974 established a "guide price" system under which subsidies were granted to "producers of soyabeans" based on the difference between the annually fixed guide price and a calculated "average world market price for standard quality soyabeans observed during the same marketing year for a Community crossing point and for a representative period". There were no provisions for "intervention" and the subsidy was payable, not on the volume of production as such, but on an "indicative yield".

23. This Regulation was replaced in 1979 by EEC Regulation 1614/79 which in its preamble stated that experience had shown that the system of aid introduced in 1974 was not the most appropriate for the purpose of attaining the desired objective. In both Regulations the considerations recited were that soyabean production was becoming of increasing interest or importance to the Community and that in order to promote the development of this production, which is in direct competition with soyabeans imported at zero duty from third countries, provision should be made for appropriate measures of support.

24. The main elements of the system of support introduced under Regulation 1614/79 were: (i) the establishment of a "minimum price" at a level guaranteeing sales for producers at a price as close as possible to the guide price, allowing in particular for market fluctuations and the cost of transporting the beans from the areas where they are produced to the areas where they are used; (ii) making the subsidy payable to the purchaser of soyabeans on condition that such purchaser has, inter alia, concluded with individual or associated soyabean producers a contract providing for payment to the producer of a price at least equal to the minimum price; and (iii) the determination of the world market price (Articles 2 and 3).

25. These basic arrangements have continued under subsequent amending or replacement Regulations, with a series of control measures or requirements being introduced under Regulations enacted from 1985 relating to the conditions governing the payment of aid to purchasers of soyabeans, including the advance payment of such aid: EEC Regulations (1985) Nos. 1491, 2194 (which replaced Regulation 1614/79) and 2329 refer.

26. As regards the criteria for the determination of the world market price for soyabeans, Article 1 of EEC Regulation 2194/85 provides that this price "shall be determined by the Commission with regard to beans in bulk of standard quality in respect of which the guide price has been fixed, delivered at Rotterdam". Provision is made for adjustments to offers and prices not meeting these conditions. This determination is to be made on the basis of the most favourable actual purchasing possibilities, with the exception of offers and prices which may not be considered as representative of the actual market trend, account being taken of offers made on the world market and of the prices quoted on exchanges which are important in terms of international trade. It may be noted that since the Community system is based on EEC "standard quality" soyabeans adjustments are made where appropriate to world market prices to take account of quality differences.

27. Article 1 of EEC Regulation 2329/85 provides that the world market price of soyabeans (and consequently the amount of the aid: Article 11) shall be determined twice a month on the basis of the most favourable offers and quotations for delivery within 30 days. Article 2 of the same Regulation provides for the adjustment of world market offers and quotations used in order to compensate for any differences in quality and conditions and place of delivery compared with the product for which the world price must be fixed. Under Article 8 of EEC Regulation 2329/85, which stipulates that the price payable to the producer shall not be lower than the minimum price, provision is also made for adjustments in contracts between purchasers and producers in relation to soyabeans of standard quality for which guide and minimum prices are established. Article 13 of this Regulation establishes procedures for verifying that the price paid to the producer is at least equal to the minimum price.

28. Data submitted by the Community on institutional prices for soyabeans and on the calculation of the amount of the aid are reproduced in Annexes A, B (Section III) and C.3. Corresponding data submitted by the United States on EEC and world market prices for soyabeans are reproduced in Annex D.3.

29. In 1978 the Community introduced a system of support for peas and field beans for use in the manufacture of animal feed and in 1984 the system, as amended in 1982, was extended to include sweet lupines (EEC Regulations 1119/78, 1431/82 and 1032/84). In the preambles to the 1978 and 1982 Regulations it is recorded that the production of these products is of increasing interest to the Community and that to encourage the development of this production, which is subject to direct competition from oilcake imported duty free from outside the Community, it is necessary to provide for appropriate support measures.

30. Under this system minimum prices for the products concerned are fixed at levels which, allowing for market fluctuations and the cost of transport of the product from producer to processor, enable producers to obtain a fair return. An aid is paid, inter alia, to manufacturers of animal feedingstuffs who guarantee that the producer has received not less than the minimum price. This aid is calculated on the basis of a proportion of the difference (45 per cent for peas and field beans, 60 per cent for sweet lupines) between an annually fixed "activating price" for soyacake and an average world market price for soyacake. The Regulations provide that the "activating price" shall be fixed for soyacake (having a total raw protein content of 44 per cent and a humidity content of 11 per cent: EEC Regulation 1120/78) at a level which enables peas, field beans and lupines to be used in animal feed under conditions of fair competition with oilcake and which ensures a fair return to producers. The average world market price for soyacake is determined under these Regulations on the basis of the most favourable purchasing possibilities on the world market in accordance with specified criteria.

31. In order to control production in the oils and fats sector the Community introduced a system under which prices and related aid payments are subject to adjustment if production exceeds a guaranteed maximum quantity or threshold. Threshold systems were introduced for rapeseed in the 1982/83 marketing year, for sunflowerseed in 1984/85, and for soyabeans, field peas and lupines in 1987/88. These systems were subsequently reinforced with effect from the 1988/89 marketing year as a result of decisions made by the European Council of Heads of State in February 1988. These arrangements are valid for three marketing years.

32. At the beginning of the marketing year the Commission estimates production for the current marketing year. If this estimate, adjusted as necessary by estimates of actual production in the year just ended, exceeds the "guaranteed maximum quantity" established for each category of oilseed, the amount of aid to production is reduced for all quantities marketed during the marketing year.

33. Specifically, the target or guide prices are reduced by a coefficient (0.45 per cent in 1988/89, and 0.5 per cent in the 1989/90 and 1990/91 marketing years) for each 1 per cent by which estimated production exceeds the guaranteed maximum quantities. The level of the aid is reduced by an amount in absolute terms corresponding to the percentage reduction of the target price for rapeseed and sunflowerseed and of the guide price for soyabeans. The intervention buying-in price (the minimum price in the case of soyabeans) is reduced by the same amount as the aid.

34. In the 1988/89 marketing year institutional (target/guide) prices and aids (for Member States other than Portugal and Spain for which special accession arrangements applied) were reduced under this system of stabilizers by 7.65 per cent and 3.44 ECU/100 kg. in the case of rapeseed, 19.8 per cent and 11.55 ECU/100 kg. in the case of sunflowerseed, and by 10.35 per cent and 5.78 ECU/100 kg. in the case of soyabeans. The magnitude of the reductions in national currency terms may not correspond to the reductions in terms of ECUs. The maximum guaranteed quantities and estimates of production for the 1988/89 marketing year (EUR-10) were: 4.5 and 5.3 million tonnes respectively for rapeseed; 2.0 and 2.888 million tonnes for sunflowerseed; and 1.3 and 1.6 million tonnes for soyabeans.

35. The following selected statistical data are attached as annexes hereto:

Annex E: EEC Vegetable Protein Meal Consumption, Imports and Production

Annex F: EEC Balance Sheet for Oilseeds

Annex G: Evolution of EEC Production and Area Cultivated

36. The United States complaint is that, contrary to Article III, the Community oilseeds régime accords oilseeds imported from the United States and other exporting countries less favourable treatment than that accorded to like products of Community origin. Domestic products benefit from subsidies paid only to purchasers and processors of domestically grown oilseeds. As a result, under the Community oilseed régime imported oilseeds are accorded less favourable treatment and like products of Community origin are afforded protection over imported oilseeds. The United States submitted that such treatment was in clear violation of Article III, in particular of paragraph 4 of Article III, and that it constituted prima facie nullification or impairment of benefits accruing to the United States under the General Agreement.

37. The Community argued that the aids were to be considered as production aids in terms of Article III:8(b) and that as such they could not constitute an infringement of Article III:4, or of Article III as a whole. The Community drew attention to the fact that a different interpretation of Article III:8(b) would improperly limit the rights recognized by Article XVI as regards subsidies. In the view of the Community, Article III:8(b) was just one application of the general principle that the GATT disciplines with regard to subsidies, which are concerned with the effects of subsidies and not the legal beneficiaries thereof, are entirely laid down in Article XVI. The Havana Conference Reports confirmed this view (page 66, paragraph 69) since the Sub-Committee which proposed the text of Article III:8(b) "recorded its view that nothing in this sub-paragraph or elsewhere in Article [III] would override the provisions of Article [XVI]".

38. The United States submitted that the exception in paragraph 8(b) of Article III in favour of "the payment of subsidies exclusively to producers" was not applicable in the present case because the subsidies complained of were paid to purchasers and not to producers. In support of this point the United States referred, inter alia, to the 1958 Panel on Italian Tractors (BISD 7S/60) in which special credit facilities made available under Italian law for the purchase by farmers of Italian but not imported tractors were considered in relation to paragraphs 4 and 8(b) of Article III. In that case the Panel declined to follow the reasoning of the respondent that Article III:4 extended only to laws and regulations directly concerning conditions of sale and not to a broader range of factors "affecting" the treatment of imported products once they had been cleared through customs. The Panel found that these credit facilities were granted to purchasers of agricultural machinery and could not be considered in terms of Article III:8(b) as subsidies accorded to the producers of agricultural machinery. The United States considered that the purchaser incentives in the Italian Tractor case and those in the present case were identical in terms of their effects on the market place in the sense that both incentives encouraged the purchase and consumption of domestic over imported products.

39. In the Community's view the Italian Tractor case was distinguishable from a factual point of view because: (i) the credit facilities granted to purchasers of Italian agricultural machinery were not subsidies for the production of, or for ensuring, a certain price to producers of such machines, whereas the aim of the Community subsidies was to enable the producer to be paid a price higher than the market price by offsetting the extra cost resulting from such payments; (ii) the real benefit of the subsidies paid went to the oilseed producer; and (iii) the effects on the market in each case were very different and in no way comparable.

40. The less favourable treatment complained of by the United States in relation to Article III:4 was that the Community measures provided substantial incentives to oilseed processors to purchase oilseeds of Community origin in preference to imported oilseeds and that these measures provided payments to processors in excess of their costs of purchasing higher priced domestic oilseeds. The United States contended that the cost to processors of purchasing domestic oilseeds was the difference between an administratively determined price payable to growers (which was equal or close to the intervention price for rapeseed and sunflowerseed or to the "minimum price" for soyabeans) and the price of competing oilseeds, whereas the subsidy paid to processors was equal to the difference between the relatively higher target or guide price on the one hand and an administratively determined world market price on the other.

41. The United States argued that these arrangements involved two elements of over-compensation which created incentives to purchase domestically produced oilseeds in preference to imported oilseeds. The first was the margin between the target or guide prices on the one hand and transaction prices for domestic oilseeds at or close to the minimum or intervention prices on the other. The second margin was that between the import price of competing oilseeds and the administratively calculated world market price which the United States submitted was generally lower than world market transaction prices. The price data supplied by the United States in support of this contention are reproduced in Annex D. Moreover, the United States submitted that the existence and effectiveness of these purchase incentives were borne out both by the fact that increasing levels of Community production were regularly and fully absorbed by the processing industry without the need for intervention purchasing or accumulation of stocks even in times of world surpluses of oilseeds, and by the fact that large changes in market share have occurred since the system came into effect, particularly in the 1980s.

42. The Community submitted that a basic point to be borne in mind was that Article III:4 did not provide that imported products should be accorded treatment identical to that received by domestic products. Rather what was required was that an advantage should not be granted on the domestic product when the situation of the imported and the domestic products were comparable. What had to be compared therefore was the effect of the respective treatments accorded to imported and domestic products. The Community also argued that, from a legal viewpoint, the obligations of Article III:4 could not apply to production subsidies. It was impossible to ensure equality of treatment between domestic and imported products given that the conditions under which imported products were produced, including subsidization in their country of origin, were outside the control of the importing country. Lower priced imported products would in any event not qualify for subsidies when processed in the Community since there were no extra costs to be offset. Moreover, since the United States also paid production subsidies at a later marketing stage and could be presumed to interpret Article III as permitting such subsidization, it could not dispute the right of the Community to rely on the same interpretation.

43. The Community submitted that the subsidies in question were simply aids for the production of oilseeds that were paid, in common with the practice of many contracting parties, at a later stage of marketing. The Community provided a sample list of fourteen support arrangements notified under Article XVI:I, including three by the United States, where production subsidies were granted at a later stage of marketing and not directly to producers. The Community further submitted that the aid paid to processors of domestic oilseeds was neutral and did not constitute a purchase premium to processors nor did the aid have the effect of according a preference to purchase of domestic over imported oilseeds.

44. In response to questions put by the Panel, the Community pointed out that the oilseeds régime was directed and confined to the granting of aid to production and producers which, for administrative and supervisory reasons, was paid at subsequent marketing stages. In the Community's view the explanatory and statistical information which it had provided to the Panel (Annexes B and C refer) confirmed that the system was confined to compensating for the additional costs arising for processors and feed compounders from the purchase of Community oilseeds without there being any additional bonus which constituted a financial incentive to purchase domestic products in preference to imported products. The essential point was, as explained in the notes provided to the Panel (Annex B), that the Community had in practice modified the application of its legislation, which allowed the Commission a margin of assessment, without formally amending the text thereof to ensure that there was no over-compensation or additional bonus. The Community also noted that Community aid was fixed under conditions that, within the limits of the powers available to a public authority, the necessary steps were taken to guarantee that Community aid was confined merely to compensating for the additional cost.

45. The Community also noted that provision was made under the Regulations for adjustments where the amount of the aid in respect of rapeseed and sunflowerseed could otherwise create a preference in favour of one oilseed in relation to others, whether of Community origin or imported, and that in recent crop years this provision had been applied systematically to avoid any such preference. In the case of soyabeans any difference between the prices paid to producers under annual contracts and the price used to calculate the aid was explained by the undertakings by buyers to provide costly technical assistance throughout the agricultural year and by the additional costs actually incurred in the preparation of Community products from the farmgate to the processing stage.

46. The United States considered that the calculations presented in Annex B were hypothetical and uninformative. In this regard the United States submitted that the data it had provided in Annex D, which were largely drawn from published EEC sources or from recognized trade publications, were accurate. It also noted that it had not been refuted that the Community had not taken on any significant stocks of oilseeds despite the fact that there had been significant accumulations of world stocks on a number of occasions since the Community régime was introduced. In the view of the United States the absence of significant Community stocks at any stage was further evidence of the bonus aspects of the Community system. Moreover, the United States considered that even if, contrary to the evidence it had submitted, world market prices as calculated by the Commission were not below actual world market price levels, the incentive created by paying processors on the basis of the higher target or guide prices constituted a bonus or over-subsidization.

47. In a supplementary submission to the Panel by the United States the following points were made with regard to the information provided by the Community on the calculation of its aids in Annexes B and C hereto. The United States submitted a graph illustrating these points on the basis of the data provided by the Community (attached as Annex H):

48. In response to foregoing points the Community submitted that, contrary to what was claimed by the United States, there was no inconsistency in the Community's replies to the questions put by the Panel. In this regard the Community made the following points:

49. The United States also considered that the Community oilseeds régime afforded protection to like domestic products of imported oilseeds and that on the basis of key criteria such as the products' intended end-uses, commercial interchangeability, commercial value and price, purchaser preferences and physical characteristics (including the products' properties), nature and quality, oilseeds were a single like product within the meaning of Article III. In support of this argument the United States referred to the arguments and findings in the following reports: Panel Report on "EEC Measures on Animal Feed Proteins", BISD 25S/49 (1978); Panel Report on "Australian Subsidy on Ammonium Sulphate", BISD II/188 (1950); Panel Report on "Treatment by Germany of Imports of Sardines", BISD IS/53 (1952); Panel Report on "Spain, Tariff Treatment of Unroasted Coffee", BISD 28S/102 (1981); the Report of the "Working Party on Border Tax Adjustments", BISD 18S/102, para. 18.

50. The Community considered that the United States argument that all oilseeds made up "a single like product" was not supported by the Panel cases referred to, and that the fact that products were "directly competitive or substitutable" did not make them "like products" for the purposes of Article III:4. In this regard, the Community drew attention to the following definition of "like product" in footnote 18 to Article 6 of the Code on Subsidies and Countervailing Duties: "Throughout this Agreement the term "like product" ("produit similaire") shall be interpreted to mean a product which is identical, i.e., alike in all respects to the product under consideration or in the absence of such a product, another product which, although not alike in all respects, has characteristics closely resembling those of the product under consideration". Finally, the Community observed that all production subsidies afforded protection to domestic production and that if this fact were to constitute an infringement of Article III, then Article III would effectively prohibit the use of production subsidies by all contracting parties.

51. The United States concluded by submitting that a violation of the so-called national treatment obligations of Article III constituted prima facie nullification or impairment of a benefit accruing to the United States within the meaning of Article XXIII and that it was not necessary, where there was a clear infringement of the provisions of the General Agreement, for the complaining party to demonstrate adverse effect. In this regard the United States referred to the following cases: Panel Report on "The Uruguayan Recourse to Article XXIII", BISD 11S/95, 100 (1962); Panel Report on "Italian Tractors", BISD 7S/60 (1958); Panel Report on "EEC, Measures on Animal Feed Proteins", BISD 25S/49 (1978); and Panel Report on "New Zealand, Imports of Electrical Transformers from Finland", BISD 32S/55, 70 (1985).

52. The Community submitted that while GATT practice as codified by the 1979 Understanding on Notification, Consultation, Dispute Settlement and Surveillance (BISD 26S/210) recognized that there was a presumption as to the adverse impacts of an infringement of the rules of the General Agreement, this did not dispense the party alleging such an infringement from affirmatively establishing the existence of such an infringement. The 1979 Understanding should, by virtue of the principle of the hierarchy of texts, take precedence over the conclusions of panels which mostly antedated the 1979 Understanding. In fact such allegations had been rejected in numerous cases precisely because no adequate evidence of violation had been adduced or sustained by the complainant. This principle had been followed, for example, in the report of the Panel on Exports of Sugar: BISD 27S, at p. 97. The general principle was therefore that the onus of proof lay with the complainant with respect to any violation of Article III in the present case.

53. The United States considered that the benefits accruing to it under the tariff concessions on oilseeds and oilcakes granted by the Community pursuant to Article II in the 1960-62 tariff negotiations had been nullified and impaired in the sense of Article XXIII:1(b) by the subsequent introduction of and substantial increases in producer and processor subsidies on Community oilseeds and protein animal feed components. The United States considered that in accordance with prior GATT rulings there was a presumption of nullification and impairment in such circumstances. The United States further considered that even in the absence of such a presumption there was compelling factual evidence that the 1962 concessions have been nullified and impaired.

54. The Community considered that the 1962 concessions no longer existed since they had been repeatedly withdrawn and replaced by new tariff concessions granted by the Community in the course of successive EEC enlargement negotiations under Article XXIV:6. The United States could therefore only claim possible nullification or impairment of benefits stemming from the concessions relating to the 1986-88 enlargement negotiations. The Community considered, as a matter of principle and balance with regard to overall rights and obligations under the GATT: that in the absence of any violation of specific provisions of the General Agreement there could be no presumption of nullification and impairment in relation to the impact of production subsidies on concessions bound pursuant to Article II; that such measures were permitted and governed by Article XVI which required that the adverse effects caused in terms of import displacement or impedance must be duly established by the complaining party; and that in the present case, whether in relation to the 1988 concessions or the defunct 1962 concessions, such effects as would constitute nullification or impairment in terms of Article XXIII:1(b) had not been established.

55. In support of its submission that no presumption of nullification or impairment could arise in the absence of any violation of specific provisions of the General Agreement, the Community cited the principle embodied in paragraph 5 of the Annex to the 1979 Understanding Regarding Notification, Dispute Settlement and Surveillance which provided that: "If a contracting party bringing an Article XXIII case claims that measures which do not conflict with the provisions of the General Agreement have nullified or impaired benefits accruing to it under the General Agreement, it would be called upon to provide a detailed justification" (BISD 26S/210, at 216).

56. Furthermore, the Community pointed out that the requirement that the adverse effects of subsidization on imports of bound products must be established under Article XVI stemmed from the provisions of the Code on Subsidies and in particular Articles 8.3 and 8.4 thereof. Article 8.3(b) dealt specifically with cases where a subsidy resulted in "nullification or impairment of the benefits accruing directly or indirectly to another signatory under the General Agreement", and the footnote thereto stated that such benefits "include the benefit of tariff concessions bound under Article II of the General Agreement". Article 8.4 of the Code provided that "the adverse effects to the interests of another signatory required to demonstrate nullification or impairment or serious prejudice may arise through "... the effects of the subsidy in displacing or impeding the imports of like products into the market of the subsidizing country". In the view of the Community these provisions should guide the interpretation and application of Article XVI in the case of alleged nullification through subsidies on concessions granted under Article II between contracting parties signatories to the Code. Furthermore these provisions confirmed the principle enunciated in the 1979 Understanding that the adverse effects of subsidies in such a case could not be presumed but had to be demonstrated by the complainant.

57. The United States submitted that tariff concessions such as those granted by the Community on oilseeds and oilcakes were the backbone of the GATT process of liberalizing world trade. The general purpose of the General Agreement was to facilitate this type of concession and to ensure that tariff obligations undertaken in accordance with Article II were not eroded by other measures. This principle applied to domestic subsidies which, although not prohibited under the General Agreement, operated to diminish the value of tariff concessions by expanding indigenous production and making domestic products artificially competitive with imports. Such measures had long been recognized as being capable of nullifying or impairing benefits accruing to a contracting party within the meaning of Article XXIII:1(b).

58. The United States cited two GATT Panel Reports as authority for the principle that nullification or impairment of a benefit accruing to one contracting party occurred if domestic measures taken by a second contracting party subsequent to the adoption of the tariff concession: (i) could not reasonably have been anticipated by the party bringing the complaint at the time of the negotiation of the concession; and (ii) upset the competitive position of the imported products (i.e., altered the pre-existing market relationship in the host country). In the Ammonium Sulphate case the Panel found that Australia's decision in 1949 to discontinue subsidizing the sale of one fertilizer (sodium nitrate) on which Australia had granted Chile a duty-free binding in 1947, whilst continuing to subsidize another fertilizer (ammonium sulphate), although not conflicting with Australia's obligations under the GATT, nonetheless nullified or impaired benefits accruing to Chile as a result of the tariff concessions granted by Australia on sodium nitrate. Specifically the Panel found that Chile "had reason to assume" that the subsidy would not be removed from sodium nitrate before it was removed from ammonium sulphate, that the action by Australia impaired benefits accruing to Chile because Chile could not have reasonably anticipated the action, and that the action resulted in upsetting the competitive relationship between the two fertilizers. The Panel recommended an adjustment of the subsidies "to remove any competitive inequality". In the German Sardines case a similar finding was made on facts which involved the subsequent introduction of more favourable import treatment for one species of fish in circumstances where, when the tariff concessions were negotiated, the exporting country had reason to assume that all fish in the same family would be treated similarly. The unadopted 1985 Panel Report on EEC Production Aids on Canned Fruits was also referred to by the United States in support of the principle outlined above.

59. While noting that neither of these cases involved the issue of whether the introduction of a domestic production subsidy on a particular product subsequent to the granting of a tariff concession on that product would constitute nullification or impairment, the United States submitted that this issue had been affirmatively settled by the 1955 ruling of the CONTRACTING PARTIES at the 1954-55 Review Session which provides that:

60. Furthermore, the United States submitted that a 1961 Report on Subsidies made it clear that it was the burden of the party imposing the new measures, in this case the European Community, to overcome the presumption that the value of the concession would not be nullified or impaired:

61. The United States considered that the reasons for these rulings were readily apparent: tariff concessions were negotiated with the expectation that the party granting the concession would not take new measures that would adversely affect conditions of competition for the product on which the concession was negotiated; and the subsequent introduction or increase of domestic subsidies could outweigh any advantage obtained in a tariff concession.

62. The Community stressed in its counter-argument that the rights and benefits conferred by the General Agreement were mainly protected, as in all legal systems, by the observance of all the obligations laid down by that Agreement. Non-tariff measures were the subject of a certain number of precise rules in the Agreement (for example, Articles II, III and XI) and rights and benefits accruing to a contracting party from a tariff concession were protected first and foremost by the observance of the obligations thus created. Subsidies fell within this category of measures with their own special rules as laid down in Article XVI (see also paragraphs 109 and 110 below).

63. With regard to the principle and the presumption adduced by the United States from the early reports, the Community considered that these reports needed to be put into context and into chronological order before attempts at generalization were undertaken. Moreover, in the Community's view the precedents invoked were not relevant to the present dispute.

64. The Community noted that the Ammonium Sulphate and German Sardines cases related to highly specific situations. They were delivered in the very first years of the application of Article XXIII at a time when panel reports did not have the nature of establishing interpretative principles with general authority. Both cases involved the discontinuance of "equality of treatment" between directly competitive but not "like" products. Equality of treatment in these early cases was a factor so essential that the concession was practically without economic value once such treatment ceased to exist. The Panel therefore considered that there was no longer any point to the concessions in question.

65. Furthermore the Community pointed out that the measures which resulted in the cessation of equality of treatment were measures totally outside the scope of the rules of the General Agreement. The Sardines case involved tariff treatment of an unbound product, which was sufficiently different from the bound product for that difference in treatment not to fall within the scope of Article I. The case of Ammonium Sulphate involved the discontinuation of subsidies on one of the two competing fertilizers. Thus the two Panels simply established that the tariff concessions were nullified or impaired solely where: (i) the value of a concession rests on a legitimate expectation (analysed at length in each case) of "equality of treatment" between the imported product and other imported or nationally produced products; and (ii) the cessation of such equality of treatment results in upsetting the competitive relationship. The Community considered that it would be improper to quote these highly specific decisions out of context and draw general conclusions on the granting of subsidies pursuant to Article XVI. The Ammonium Sulphate Panel explicitly stressed that: "The situation in this case is different from that which would have arisen from the granting of a new subsidy on one of two competing products owing to the freedom to impose subsidies and to select the products on which a subsidy would be granted". The Community considered that unlike these precedents, where the measures did not fall within the scope of the rules of the General Agreement, the granting of a production subsidy was covered by the obligations of Article XVI of the General Agreement. While in the two precedents cited by the United States, the absence of rules was the problem, in the present case a rule existed and applying these precedents would be tantamount to amending an existing rule.

66. As far as upsetting the competitive relationship was concerned, the Community noted that the United States considered that this occurs as a result of any alteration in the "pre-existing market relationship" whereas, in the opinion of the Community, "alter" and "upset" were not synonymous. The granting of a subsidy may alter the competitive relationship but it did not necessarily upset it to the point of substantially devaluing the concession. The proof was, in the case in point, that the granting of Community subsidies has not prevented imports from more than quadrupling since 1966. This fact showed that Community concessions on oilseeds were still as valuable as before in spite of all the subsidies granted. The United States showed, moreover, during the last renegotiations under Article XXIV:6 (1986), that it placed great value on the concessions. The fact that neither at that time nor before did the United States request an amendment to the Community support system confirmed that the United States did not consider the concessions to have been affected or devalued. The situation was therefore radically different from that in the two precedents, where the Panels considered that the measure examined upset the competitive relationship (cessation of equality of treatment) to an extent that the concession became largely worthless.

67. The Community noted that the Canned Fruit Panel was the only case involving the application of the concept of non-violation impairment to subsidies under Article XVI. The Panel's Report was not adopted precisely because of disagreements between the contracting parties on the application of the concept of impairment to subsidies and on its consequences as regards the balance of rights and obligations arising from Articles II and XVI. Accordingly, whatever value may be placed on the Report of the Canned Fruit Panel, in the view of the Community, one cannot apply it by referring to part of its findings (recognition of non-violation impairment by the granting of a subsidy subsequent to the concession) and ignoring the other part (that the concession to be considered is that last negotiated and not the first negotiated).

68. The United States noted that the report of the Canned Fruit Panel was not adopted because the matter in dispute was settled by agreement between the parties. The report was not rejected by the Council; rather, one of the terms of the agreement was that the United States would not seek adoption of the report.

69. With regard to the presumption of nullification and impairment which the United States considered as having been established by the 1955 and 1961 Reports, the Community considered that the United States argument was not supported by sound, clear precedents and that it also contradicted the text of the Understanding Regarding Notification, Consultation, Dispute Settlement and Surveillance approved by the CONTRACTING PARTIES in 1979. Paragraph 13 of the 1955 Review Session Report was confined to dispensing the party which negotiated the concession from providing proof of its expectation as to the subsequent introduction of subsidies on the product concerned and could not be interpreted as establishing a presumption as to the effect of a subsidy introduced subsequent to the granting of a concession. Moreover no such conclusion was reached in the few panels where the question of the presumption of adverse effects was raised. For example, in the 1962 Panel Report on the Uruguayan Recourse to Article XXIII it was stated that: "While it is not precluded that a prima facie case of nullification or impairment could arise even if there is no infringement of GATT provisions, it would be in such cases incumbent on the country invoking Article XXIII to demonstrate the grounds and reasons for its invocation. Detailed submissions on the part of that contracting party on these points were therefore essential for a judgment to be made under this Article". At all events in the Community's view this matter was settled by the 1979 Understanding Regarding Notification, Consultation, Dispute Settlement and Surveillance in Point 5 of the Annex thereto entitled "Agreed Description of the Customary Practice of the GATT in the Field of Dispute Settlement". This requires that in cases of non-violation, a detailed justification is necessary. This requirement also formed part of the Code on Subsidies (Articles 8(3) and (4)) and ruled out the concept of presumption and reversal of the burden of proof.

70. The United States noted that the Community argument was tantamount to converting the absence of a prohibition on domestic subsidies into an affirmative right to subsidize not limited by other GATT provisions, by interpretative precedents or by commitments under the General Agreement. The United States pointed out that the 1955 ruling occurred at the same time that the CONTRACTING PARTIES were reviewing Article XVI and adding to its provisions. In that ruling and again in the 1961 ruling, the CONTRACTING PARTIES, including countries now members of the EEC, explicitly recognized that subsidies can impair, and may be presumed to impair, tariff concessions, even though they are not prohibited by Article XVI. These rulings removed any uncertainty left open by the Ammonium Sulphate case that the subsequent introduction of subsidies could serve as a basis for nullification or impairment and it was thus clear that Article XVI was not intended to have exclusive jurisdiction over subsidies.

TO CONTINUE WITH EUROPEAN ECONOMIC COMMUNITY - PAYMENTS AND SUBSIDIES PAID TO PROCESSORS AND PRODUCERS OF OILSEEDS AND RELATED ANIMAL FEED PROTEINS