(1)

On 11 April 2019, the Dispute Settlement Body of the World Trade Organization (‘WTO’) adopted its recommendations and rulings in the dispute DS353 United States – Measures Affecting Trade in Large Civil Aircraft (Second complaint) – Recourse to Article 21.5 of the DSU by the European Union, confirming that the United States has failed to bring its measures, found to be inconsistent with the Agreement on Subsidies and Countervailing Measures (‘SCM Agreement’), into conformity with its obligations under that Agreement. With respect to the FSC/ETI tax concessions, the Appellate Body confirmed that the United States has not withdrawn the subsidies and that the original recommendations and rulings remain operative (2).

(2)

With respect to the other relevant measures, in accordance with paragraph 8 of the ‘Agreed Procedures under Articles 21 and 22 of the Dispute Settlement Understanding (“DSU”) and Article 7 of the SCM Agreement’ (3) between the European Union and the United States with respect to this dispute, the European Union requested the DSU Article 22.6 arbitrator to resume its work. The arbitrator issued its decision on 13 October 2020 (4).

(3)

The arbitrator’s decision states that the European Union may request authorisation from the WTO Dispute Settlement Body to take countermeasures with respect to the United States of America (‘United States’), at a level not exceeding USD 3 993 212 564 annually. These countermeasures may take the form of (a) suspension of tariff concessions and other related obligations under the GATT 1994; (b) suspension of concessions and other obligations under the SCM Agreement; and (c) suspension of horizontal or sectoral commitments contained in the consolidated European Union’s services schedule with regard to all principal sectors identified in the Services Sectoral Classification List.

(4)

In line with Article 22.7 of the DSU, the parties shall accept the arbitrator’s decision as final. On 26 October 2020 the European Union has been authorised by the WTO Dispute Settlement Body to take countermeasures against the United States consistent with the arbitrator’s decision. The countermeasures will consist of the suspension of tariff concessions and the imposition of new or increased customs duties.

(5)

In designing and selecting appropriate measures, the Commission has taken into consideration and applied all of the objective criteria in accordance with Article 4(2)(a) and Article 4(3) of Regulation (EU) No 654/2014. In line with Article 9 of Regulation (EU) No 654/2014, the Commission has provided an opportunity for stakeholders to express their views and submit information regarding the relevant Union’s economic interests (5).

(6)

The Commission has ensured that the additional customs duties do not exceed the level authorised by the WTO Dispute Settlement Body. At present, the amount is considered appropriate to effectively induce compliance and provide relief to EU economic operators because, in the current economic climate, it permits measures to be imposed on US large civil aircraft and other products that are considered sufficiently similar to the countermeasures imposed by the United States.

(7)

These measures concern imports of products originating in the United States on which the European Union is not substantially dependent for its supply. This approach avoids as much as possible a negative impact on the various actors on the Union market, including consumers.

(8)

The commercial policy measures in the form of additional ad valorem duties on the products listed in Annex I and Annex II should be applied as follows:

(9)

Negotiations between the European Union and the United States aiming at a balanced settlement of the WTO disputes on large civil aircraft have so far not yielded results. At the same time, the United States continues to apply countermeasures in the amount of USD 7,5 bn on imports of products from the European Union. The Commission intends to amend this Regulation, to take into account relevant developments, including with respect to US compliance or lack thereof. In particular, the Commission intends to suspend the application of the implementing Regulation, if the United States suspends its countermeasures against imports from the European Union, or change the level of customs duties, as necessary, to mirror the countermeasures applied by the United States.

(10)

This act should enter into force on the day following the day on which it is published in the Official Journal of the European Union.

(11)

The measures provided for in this Regulation are in accordance with the opinion of the Trade Barriers Committee, established by Regulation (EU) 2015/1843 of the European Parliament and of the Council (6),