Decisions of the Appellate Body of the World Trade Organization United States - Countervailing Measures Concerning Certain Products from the European Communities Download the Complete Survey (PDF Format) * WTO Appellate Body Report: United States - Countervailing Measures Concerning Certain Products from the European Communities, WT/DS212/AB/R, adopted 8 January 2003. United States, Appellant; European Communities, Appellee; Brazil, India and Mexico, Third Participants. Division: Lockhart, Abi-Saab and Bacchus. Major Topics Addressed by the Appellate Body: definition of `subsidy'; continued subsidy or benefit to recipient after privatization; mandatory versus discretionary legislation and challenge of an administrative practice as such. 1. Abstract It seems clear in WTO law that only a continuing, or existing, subsidy may give rise to countervailing duties. The main question in this case relates to the type of investigation that is necessary in order to determine the continued existence of a subsidy, after the subsidized entity is privatized. The Appellate Body found a rebuttable presumption that privatization at arm's length and for fair market value extinguishes the benefit of a subsidy. The Appellate Body reversed the panel's finding that a finding of arm's length privatization at fair market value requires a finding that no benefit continues. The Appellate Body also found that an administrative practice, in this case the U.S. method for determining the effect of privatization on a prior subsidy, as such, can be a violation of WTO law. * The free viewer (Acrobat Reader) for PDF file is available at the Adobe Systems
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