Backgroud to this dispute
Why did the dispute start?
In 1992, the United States (“US”) and the European Communities (now the European Union, “EU”) concluded a bilateral agreement (“1992 Agreement”) in which the parties recognised a formula for balancing US financial grants to its aircraft industry with repayable loans to the European aircraft industry. While the EU, in good faith, met its commitments under this agreement, the US repeatedly disregarded the established limitations, both in terms of amounts and types of subsidies. One blatant example was the unprecedented package of subsidies granted by Washington State for the 787 and other Boeing commercial aircraft, which amounted to more than USD 3 billion. The State of Washington made it very clear at the time that the incentive package was designed to help “Boeing to beat Airbus.” Independent commentators noted that the Boeing Incentive Package was an “unprecedented” deal that has “never been done for any company by any state.”
On 6 October 2004, Boeing prompted the United States to unilaterally and unexpectedly withdraw from the 1992 Agreement and to immediately file a complaint at the WTO over all EU support ever granted to Airbus, including the support that was previously agreed to by the US in the 1992 Agreement.
The EU was left with little choice but to respond with a parallel WTO challenge to US government support of the US aerospace industry (i.e., Boeing) by federal, state and local authorities. This included benefits to Boeing under the so-called US Foreign Sales Corporation Scheme, which the US government had continued to provide to Boeing, despite these subsidies having repeatedly been found to violate WTO rules.
These two parallel WTO challenges, the "Airbus case" (DS316: the US challenge of EU support for Airbus) and the "Boeing case" (DS353: the EU challenge of US support to Boeing), have followed different timetables due to a number of delays at the WTO.
In December 2014, the EU challenged in a separate dispute (DS487) the additional support provided to Boeing by Washington State in exchange for locating the 777X wing and fuselage production, as well as final assembly of the 777X, in the State. The support was designed in the form of tax breaks, lasting through the year 2040, which Washington State has valued at USD 8.7 billion. This is the largest ever state-level subsidy package in the history of the United States. Industry specialists consider that these amounts could be sufficient to cover the entire cost of design and development of the 777X, essentially giving Boeing a “free ride” by offsetting completely its costs of developing and bringing the aircraft to market.
Who is conducting the case at the WTO?
Cases before the WTO are brought by governments. The European Commission on behalf of four EU Member States (France, Germany, UK and Spain, together “Member States”) is leading the EU case, while the US Trade Representative (“USTR”) is heading the US case. Airbus is fully supporting the European Commission in its preparation for and prosecution of its legal cases. Boeing is providing similar support to the USTR.
The US Case against the EU - DS316
The US claims that Airbus receives billions of Euros in subsidies that are prohibited or otherwise inconsistent with WTO rules. This claim is a myth, and has been largely rejected by the WTO. The reality is that the financing Airbus received from the Member States is repayable with interest, as agreed to by the US in the 1992 Agreement.
In the original proceedings, the WTO panel found that financing by the Member States in the form of repayable launch investment (“RLI”) does not constitute a subsidy per se, in contrast to grants or industry-specific tax breaks. Instead, specific instances of RLI involved subsidies only to the limited extent that the interest due fell short of market rates. Moreover, the WTO confirmed that RLI does not constitute a prohibited subsidy.
Ultimately, however, the WTO found that individual instances of RLI, historic capital contributions to Airbus made in the 1980s and early 1990s, and a small number of infrastructure support measures, constitute subsidies that cause competitive harm in the market place. Specifically, the WTO attributed a small number of sales that Airbus won and Boeing lost, as well as market share losses by Boeing in a small number of markets, to the EU support. The WTO directed the EU to remove these adverse effects of the subsidies, or to withdraw the subsidies.
In response, in December 2011, the EU presented a comprehensive set of actions taken in order to address the WTO findings and recommendations. The US asserted that these steps were insufficient and decided to launch WTO proceedings to review the EU’s compliance measures.
In the resulting compliance proceedings, the EU established that most of the subsidies at issue had expired, such that their withdrawal had been procured. The EU further demonstrated that, because of the passage of time, non-subsidised investments by Airbus in the competitiveness of its products, and other market developments, there were no longer any adverse effects attributable to the subsidies.
A WTO compliance panel confirmed that all pre-A380 RLI, along with historic capital contributions to Airbus and certain infrastructure support, had expired. Yet, for the panel, expiry of a subsidy did not achieve its withdrawal.
It is difficult to imagine, however, what other action the EU could be required to take in a system that provides for prospective remedies and where subsidies no longer exist. The EU is currently appealing the panel’s finding.
The WTO compliance panel also found that RLI provided by the Member States for the A350XWB constituted a subsidy. It used a benchmark developed for A380 financing, disregarding all relevant differences in the riskiness of the projects and their financing. The EU is currently appealing this finding, as well.
Moreover, the compliance panel once more rejected US claims that RLI for the A380 and A350XWB were prohibited. And the panel rejected US claims that RLI for the A380 and A350XWB enabled Airbus to bring to market aircraft that it could not otherwise have launched and developed. Instead, the panel found adverse effects only because it considered that, absent all subsidies ever granted, Airbus and its products, in their entirety, would not have existed. These findings are based on the effects of subsidies that have expired, and for which the EU has, therefore, achieved compliance because the subsidies are withdrawn. In addition, the panel adopted an erroneous causation standard and committed further errors.
These findings are all currently on appeal. On 2nd May 2017, a substantive hearing was held where both parties had the opportunity to challenge the findings and interpretations used by the compliance panel. The final report on the EU’s compliance with the WTO’s findings is expected to be published in Q4 2017.
Essential facts about the "Airbus case"
Consistent with the 1992 Agreement, financing by the Member States of Airbus aircraft through RLI is limited and repayable with interest. The WTO confirmed that RLI does not per se constitute subsidies; instead, individual instances of RLI have involved subsidization in the form of interest rate shortfalls from market benchmarks for RLI. This distinguishes RLI from most US support to Boeing in the form of grants and tax breaks, which do per se constitute subsidies and are never repayable.
The WTO confirmed that RLI does not involve export or local content contingencies, and therefore does not involve prohibited subsidies.
While the compliance panel found that RLI continued to cause adverse effects in the market, those findings rest entirely on alleged present effects in the market, from subsidies that have long since expired (and for which the EU has procured compliance through their withdrawal).
The WTO also confirmed in the original proceedings that all R&D programmes in the EU (European, national and regional) are fully compatible with WTO rules. This finding is especially relevant when compared to the WTO findings in the Boeing case that NASA and Department of Defense R&D subsidies caused adverse effects in the market.
The WTO also rejected the US challenge to support for the A380 production site (Aéroconstellation) in Toulouse, France.
While the WTO previously found that support for the A380 production site in the Mühlenberger Loch facility in Hamburg, Germany, was a subsidy that contributed to adverse effects, Airbus has since agreed to increase rental payments, and the United States therefore abandoned its challenge.
The additional EU Case against the US – DS487
In November 2013, Washington State, as part of its efforts to induce Boeing to manufacture its new 777X model in the State, vastly expanded and amended its existing aerospace tax incentives, thereby providing billions of dollars in additional subsidies to Boeing. The estimated value of these tax breaks, according to the Washington State government itself, amounts to USD 8.7 billion.
The law adopted by Washington State at the end of 2013 specifically links the provision of fiscal tax breaks to Boeing’s decisions to manufacture key 777X components (i.e., wings and fuselage) and to perform the final assembly of the aircraft in the State. In other words, the measures condition billions of dollars in subsidies upon the use of aircraft components manufactured in Washington State. These conditions requiring the use of domestic over imported goods render the subsidies “prohibited” under WTO law and per se illegal, with no compliance option available other than their immediate withdrawal.
In December 2014 the EU launched a fast-track challenge of these multi-billion dollar subsidies before the WTO. This case, DS487, runs in parallel to the DS353 challenge.
On 28 November 2016, the WTO Panel ruled that the Washington State tax incentives to Boeing include “prohibited subsidies”. These findings relate to subsidies that extend all the way through the year 2040. The Panel explained that these Washington State subsidies belong to “a special category of subsidies, which Members have deemed to create such trade distortions that they are proscribed without the need for a complaining Member to show any adverse effects.” The Panel further confirmed that such subsidies are “specifically designed to affect trade.” The US has appealed this finding, but it is expected that the WTO AB will uphold or even expand the findings against these subsidies. At that point, the US will be under an obligation to withdraw the subsidy without delay, and in any event within 90 days, in order to comply with this historic ruling.
The EU, Member States, and Airbus have always publicly and vocally favoured resolution of the conflict through negotiation rather than litigation. The European side has made several concrete offers to the USTR and Boeing to this end.
The US position, on the other hand, has always been that European government support must be withdrawn entirely as a pre-condition to negotiation. A demand for unilateral surrender is obviously an unacceptable basis for discussions.
Whatever happens, Europe and the US will almost certainly be compelled to negotiate a new civil aircraft agreement of some description, eventually. The question is simply how long the US will drag out the dispute.