WORLD TRADE
ORGANIZATIONWT/DS103/RW2
WT/DS113/RW2
26 July 2002
(02-4090)
Original:  English
CANADA – MEASURES AFFECTING
THE IMPORTATION OF MILK
AND THE EXPORTATION OF DAIRY PRODUCTS
Second Recourse to Article 21.5 of the DSU by
New Zealand and the United States
Report of the Panel
The report of the Panel on Canada - Measures Affecting the Importation of Milk and the Exportation
of Dairy Products, Second Recourse to Article 21.5  of the DSU by New Zealand and the United States
is being circulated to all Members, pursuant to  the DSU.  The report is being circulated as an
unrestricted document pursuant to the Procedures for the Circulation and De-restriction of WTO
Documents (WT/L/452).WT/DS103/RW2
WT/DS113/RW2
Page i
TABLE OF CONTENTS
I. INTRODUCTION ................................................................................................................. ..................1
(i) Terms of reference .......................................................................................................... ..............................2
(ii) Composition of Panel....................................................................................................... .............................2
II. FACTUAL ASPECTS............................................................................................................. ................4
(i) Previous system ............................................................................................................. ...............................4
(ii) Canada's implementation measures........................................................................................... ....................4
(iii) Previous panel and A ppellate Body judgements.............................................................................. .............5
III. MAIN ARG UMEN TS ............................................................................................................. ................7
A. B URDEN OF PROOF ............................................................................................................................... ......7
B. A RTICLE 9(1)( C) OF THE AGREEMENT ON AGRICULTURE ...........................................................................7
1. "Payments"................................................................................................................... .........................7
(i) Average total costs of production-proper value .............................................................................. ..............8
(ii) The Canadian Dairy Commission .............................................................................................. ...................9
(iii) Administered domestic price ............................................................................................... .......................10
(iv) Imputed costs.............................................................................................................. ................................12
(v) Quota as an intangible asset................................................................................................ ........................15
(vi) Cost of capital............................................................................................................ .................................16
(vii) Cost of Marketing Milk.................................................................................................... ......................17
(viii) Calculation of average total cost of production (single producer versus industry-wide average) ..........18
(ix) Definition of "export subsidies"........................................................................................... .......................24
2. "financed by virtue of governmental action".................................................................................. .....26
C. A RTICLE 10.1 OF THE AGREEMENT ON AGRICULTURE . ............................................................................35
(i) Illustrative List of Export Subsidies....................................................................................... .....................35
(ii) SCM Agreement and Article XVI of GATT...................................................................................... .........41
(iii) Circumvention of Export Subsidy Commitments ............................................................................... ........43
(iv) "Non-commercial transactions" .............................................................................................. ....................45
D. A RTICLES 1.1 AND 3 OF THE SCM A GREEMENT ......................................................................................46
IV. THIRD PARTIES' ARGUMENTS.................................................................................................... ..50
A. A RGENTINA ............................................................................................................................... ...............50
1. Article 9.1 of the Agreement on Agriculture .................................................................................. .....50
(i) "payments".................................................................................................................. ................................50
(ii) "by virtue of governmental action"......................................................................................... ....................50
2. Article 10.1 of the Agreement on Agriculture ................................................................................. ....51
B. A USTRALIA ............................................................................................................................... ...............52
1. Article 9.1 of the Agreement on Agriculture .................................................................................. .....52
(i) "payments".................................................................................................................. ................................52
C. E UROPEAN COMMUNITIES ........................................................................................................................55
1. Article 9.1 of the Agreement on Agriculture .................................................................................. .....55
(i) "payments".................................................................................................................. ................................55
(ii) "by virtue of governmental action"......................................................................................... ....................57
V. FINDINGS ..................................................................................................................... ........................59
A. CLAIMS OF THE PARTIES ...........................................................................................................................59
1. The Complainants' claims ..................................................................................................... ..............59
2. Respondent's  claims .......................................................................................................... ..................59
B. CONTEXT OF THIS CASE ............................................................................................................................59
C. BURDEN OF PROOF ............................................................................................................................... .....60
D. WHETHER EXPORT SUBSIDIES EXIST WITHIN THE MEANING OF ARTICLE  9.1( C) OF THE AGREEMENT ON
AGRICULTURE ............................................................................................................................... ....................62
1. Introduc tion................................................................................................................. ........................62
2. Whether there are "payments" ................................................................................................. ...........62
(a) Whether the Complainants make a prima facie case of the existence of "payments"......................................63
(b) Examination of Canada's cas e on the issue of  "payments" ..................................................................... .........64WT/DS103/RW2
WT/DS113/RW2
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(i) Canada's position on its implementa tion of the DSB's recommenda tions...................................................64
(ii) Canada's rejection of an industry- wide application of  the benchmark ........................................................ 65
(iii) Applicable benchmark in this case......................................................................................... .....................65
(iv) Appellate Body's guidance on the nature  of its newly enunc iated benc hmark............................................66
(v) Panel's analysis of the nature of th e benchmark............................................................................. .............67
(vi) Canada's critique of the Complainants' reliance on the CDC data and its arguments in favour of individualproducer data.................................................................................................................. ......................................68
(vii) Panel's assessment of Canada's arguments and data on individual producers' costs...............................70
(viii) Canada's proposed exclusion of certain cost elements ..................................................................... ......73
(ix) Panel's analysis of cost el ements to be in cluded/excluded.................................................................. ........74
(c) Conclusion on the issue of " payments "............................................................................................................75
3. Whether payments are "financed by virtue of governmental action"..................................................75
(a) Basis for Panel's renewed examination of whether payments are "financed by virtue of
governmental action"........................................................................................................... ......................................75
(b) Whether the Complainants make a prima facie  case .......................................................................................76
(c) Examination of Canada's case on "financed  by virtue of governmental action" ..............................................77
(i) Canada's position regarding the lack of governmental involvement in the export market ..........................77(ii) Appellate Body guidance on "financing by virtue of governmental action" ...............................................78
(iii) Panel's examination of "financed by virtue of governmental action" in light of the Appellate Body
guidance ....................................................................................................................... ........................................79
(iv) The SCM Agreement as contextual guidance for Article 9.1 of the Agreement on Agriculture.................84
(d) Conclusion as to whether payments are "fin anced by virtue of g overnmental action" ....................................84
4. Conclusion on Article 9.1(c) of the Agreement on Agriculture...........................................................85
E. ARTICLE  3.3 OF THE AGREEMENT ON AGRICULTURE .................................................................................85
F. WHETHER EXPORT SUBSIDIES EXIST WITHIN THE MEANING OF ARTICLE  10.1 OF THE AGREEMENT ON
AGRICULTURE ............................................................................................................................... ....................85
1. Introduc tion................................................................................................................. ........................85
2. Whether "export subsidies" exist............................................................................................. ............86
(a) Whether the Complainants make a prima facie case .......................................................................................86
(b) Canada's case on whether "export subsidies" exist ........................................................................... ...............87
(c) Panel's examination of whether "export subsidies" exist ..................................................................... ............88
(d) Conclusion as to whether "export subsidies" exist........................................................................... ................90
3. Whether there is circumvention of export s ubsidy commitments or a threat thereof ..........................90
(a) Whether the Complainants make a prima facie case on circumvention...........................................................90
(b) Canada's case on circumvention .............................................................................................. ........................91
(c) Panel's examination of the issue of circumvention ........................................................................... ...............91
(d) Conclusion on the i ssue of circumvention .................................................................................... ...................91
4. Conclusion on Article 10.1................................................................................................... ...............91
G. WHETHER OR NOT EXPORT SUBSIDIES NOT IN CONFORMITY WITH THE AGREEMENT ON AGRICULTURE AND
THE COMMITMENTS SPECIFIED IN CANADA 'S SCHEDULE ARE PROVIDED , WITHIN THE MEANING OF ARTICLE 8 OF
THE AGREEMENT ON AGRICULTURE ..................................................................................................................92
H. WHETHER OR NOT CANADA PROVIDES PROHIBITED EXPORT SUBSIDIES WITHIN THE MEANING OF
ARTICLE  3.1 OF THE SCM AGREEMENT ..............................................................................................................92
VI. CONCLUSIONS A ND RECOMMENDATIONS...............................................................................93
VII. ANNEX...................................................................................................................... .............................94
1. Abbreviations used for dispute settlement case s referred to in  the report ..........................................94WT/DS103/RW2
WT/DS113/RW2
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I. INTRODUCTION
1.1 On 23 December 1999, pursuant to Article 21.3(b) of the DSU, Canada, New Zealand and the
United States agreed (WT/DS103/10-WT/DS113/10) on the reasonable period of time for
implementation of the recommendations and rulings of the Dispute Settlement Body (the DSB) in thematter of "Canada - Measures Affecting the Importation of Milk and the Exportation of Dairy
Products".  According to the terms of the 23 December 1999 agreement, as amended on
11 December 2000 (WT/DS103/13-WT/DS113/13), the staged implementation process, including any
new measures for the export of dairy products ,  was to be completed by 31 January  2001.
1.2 On 19 January 2001, Canada circulated to all Members of the DSB (WT/DS103/12/Add.6-
WT/DS/113/12/Add.6) its "final status report", pursu ant to Article 21.6 of the Understanding on Rules
and Procedures Governing the Settlement of Disputes (the DSU).  In that report Canada affirmed "thatit will be in full compliance with the rulings and recommendations of the DSB by the conclusion of
the implementation period" on 31 January 2001.
1.3 New Zealand and the United States consider that Canada has failed to comply with the above-
mentioned recommendations and rulings of the DSB by 31 January 2001.
1.4 Without prejudice to their rights under the WTO, and in accordance with paragraph 1 of the
21 December 2000 "Agreed Procedures between Canada, New Zealand and the United States under
Articles 21 and 22 of the Dispute Settlement Unde rstanding in the follow-up to the dispute in Canada
– Measures Affecting the Importation of Milk and the Exportation of Dairy Products " (WT/DS113/14
and WT/DS103/14, respectively) ("Agreed Procedures"), New Zealand and the United States
requested consultations with Canada on 2 February 2001.  Consultations were held on9 February 2001, but failed to resolve the dispute.
1.5 On 16 February 2001, pursuant to Article 21.5, and as envisaged in the Agreed Procedures,
New Zealand and the United States accordingly requested the establishment of a panel in this matter
and requested that the DSB refer the matter to the original panel, if possible (WT/DS113/16 and
WT/DS103/16, respectively.)
1.6 On 16 February 2001, New Zealand and the United States also requested authorization from
the DSB, pursuant to Article 22.2 of the DSU, to suspend the application to Canada of tariff
concessions and other obligations under the General Agreement on Tariffs and Trade 1994 (GATT
1994) covering trade in the amount of US$35 million for each complainant. On 28 February 2001,
pursuant to Article 22.6 of the Understanding on Rules and Procedures Governing the Settlement of
Disputes (DSU), Canada objected to the level of suspension of tariff concessions and other obligations
under the GATT 1994 proposed by New Zealand and the United States (WT/DS113/17 andWT/DS103/17, respectively).  In accordance with the provisions of Article 22.6 of the DSU and as
envisaged in the Agreed Procedures, Canada therefore requested that this matter be referred to
arbitration.
1.7 In accordance with the "Agreed Procedures", the Complainants did not object to the referral
of the level of suspension of concessions or other obligations to arbitration pursuant to Article 22.6 ofthe DSU.  In this case, New Zealand and the United States agreed to request the arbitrator to suspend
its work until either (a) the adoption of the Article 21.5 compliance panel report; or (b) if there were
an appeal, the adoption of the Appellate Body report.
1.8 At its meeting on 1 March 2001, the DSB decided, in accordance with Article 21.5 of the
DSU, to refer to the original panel, if possible, the matter raised by New Zealand and the UnitedStates in documents WT/DS113/ 16 and WT/DS103/16, respectively.WT/DS103/RW2
WT/DS113/RW2
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1.9 The report of the Article 21.5 panel was circulated to Members on 11 July 2001.  On
4 September 2001, Canada notified the DSB of its intention to appeal certain issues of law covered in
the Panel Report on  Canada  – Measures Affecting the Importation of Milk and the Exportation of
Dairy Products  (Recourse to Article 21.5 by New Zealand and the United States) and certain legal
interpretations developed by the panel.  The Appellate Body rendered its report on 3 December 2001.
1.10  On 6 December 2001, New Zealand (WT/DS113/23) and the United States (WT/DS103/23)
requested the establishment of a second Article 21.5 panel as they considered that there continued to
be "a disagreement as to the existence or consistency with a covered agreement of measures taken to
comply with the recommendations and rulings of the DSB" between Canada and New Zealand and
Canada and the United States, respectively, within the terms of Article 21.5 of the DSU.  New
Zealand and the United States therefore requested, pursuant to Article 21.5 of the DSU, that thismatter be referred to the original panel.
1.11 On 18 December 2001 Canada, New Zealand and the United States agreed to an amendment
of the "Agreed Procedures" which provides that the arbitration requested by Canada under
Article 22.6 will remain suspended until the DSB finds that  Canada has failed to comply with the
recommendations and rulings of the DSB or that the  measures taken by Canada to comply with the
recommendations and rulings of the DSB  are inconsistent with the covered agreements as referred to
in the second Article 21.5 compliance panel request.  Alternatively, if the DSB were to find that
Canada has complied with the recommendations and rulings of the DSB, the Complainants will
withdraw their request under Article 22.2 of the DSU.   Further, the amendment stated that following
establishment of the second compliance panel in accordance with paragraph 2 of the Understanding,the Complainants will request that, with the exception of all matters relating to Panel composition, the
work of the Panel be suspended pursuant to Article 12.12 of the DSU until 18 February 2002.
1.12 At its meeting on 18 December 2001, the Dispute Settlement Body (DSB) decided, in
accordance with Article 21.5 of the DSU, to refer to the original panel the matter raised by
New Zealand and the United States in docume nts WT/DS113/23 and WT/DS103/23, respectively.
(i) Terms of reference
1.13 At that DSB meeting, it was also agreed that the Panel should have standard terms of
reference as follows:
"To examine, in the light of the relevant provisions of the covered agreements cited
by the United States in document WT/DS103/16 and by New Zealand in document
WT/DS113/16, the matter referred to the DSB by the United States and New Zealand
in those documents and to make such findings as will assist the DSB in making therecommendations or in giving the rulings provided for in those agreements."
(ii) Composition of Panel
1.14 The Panel was composed on 17 January 2002 as follows:
Chairperson: Mr Ernst-Ulrich Petersmann
Members: Mr Guillermo Aguilar Alvarez
Mr Peter Pale čka
1.15 Argentina, Australia and the European Communities reserved their third party rights.WT/DS103/RW2
WT/DS113/RW2
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1.16 The Panel held a meeting with the Parties on 22-23 April 2002 and with the Third Parties on
23 April 2002.  The report of the Panel was submitted to the Parties on 24 June 2002.WT/DS103/RW2
WT/DS113/RW2
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II. FACTUAL ASPECTS
(i) Previous system
2.1 Under the Canadian supply management system, introduced on 1 August 1995, a processor
who wished to export had to obtain a permit from  the Canadian Dairy Commission (CDC), allowing it
to buy milk under Special Milk Class 5(d) and (e).  Class 5(e), referred to as "surplus removal", was
made up of both in-quota and over-quota milk.  Class 5(d) referred to specific negotiated exports
including cheese under quota destined for the markets of the United States and the United Kingdom,
as well as evaporated milk, whole milk powder and niche markets.  The permit also specified the
dairy products to be exported.  The CDC only issued Special Milk Class 5(e) permits when all
demand for milk in the domestic market was met.  Once the processor had obtained the CDC permit,
it approached the local marketing board, which made milk available to the processor at the regulatedprice and with a guaranteed margin.  Prices for Classes 5(d) and (e) were negotiated and established
on a case-by-case basis with the processors/exporters.  The CDC conducted these negotiations in
accordance with the criteria agreed upon in the Canadian Milk Supply Management Committee
(CMSMC).
(ii) Canada's implementation measures
2.2 Canada's implementation of the rulings and recommendations of the DSB left in place the
domestic price support mechanism and production quota but eliminated Special Milk Class 5(e) and
restricted exports of dairy products under Special Milk Class 5(d) to Canada's export subsidy
commitment levels.
1  Canada also created a new class of domestic milk, Class 4(m), under which any
over-quota milk can be sold as animal feed at a regulated price on the domestic market.2  In addition,
Canada deregulated milk for export processing (other than milk exported under Special Milk
Class 5(d)) by introducing a new category of "commercial export milk" (CEM), by definition exempt
from the pricing regulations applicable to milk de stined for the domestic market and destined for
export.  There are no volume, pricing or timing restrictions on such exports.
2.3 The diversion of CEM or of products made therefrom onto the domestic market is prohibited
and subject to penalties.  Under pre-commitment contracts, producers decide in advance of production
how much milk to sell as CEM which is then delivered first out of the tank to processors.3  Price and
volume of CEM are negotiated directly between the processor and the producer.4  The governments in
Ontario and Quebec require that all export participants operate through a single commercial export
exchange.5  These "bulletin boards" are part of the operational framework within which commercial
export transactions take place.6
                                                     
1 Appellate Body Report, Canada - Dairy  (Article 21.5 – New Zealand and US)  WT/DS103/AB/RW and
WT/DS113/AB/RW, paras. 4 and 79.
The full titles of the relevant panel and Appellate Body reports are provided in the Annex on page 94.
2 Ibid., para. 4.
3 Ibid.  The panel in Canada - Dairy (Article 21.5 – New Zealand and US) noted that DFO General Milk
Regulation 09/00 defines CEM as milk that is pre-committed and first out of a producer's tank.
4 Ibid., paras. 4 and. 79.
5 Panel Report, Canada – Dairy (Article 21.5 – New Zealand and US) , para. 3.8.
6 Ibid.WT/DS103/RW2
WT/DS113/RW2
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2.4 Pursuant to the  Canadian Dairy Commission Act7, the Dairy Products Marketing
Regulations8 have been modified to exclude CEM and cream from federal licensing9, quota10 and levy
requirements11 and from the requirement to market this m ilk through the provincial marketing boards.
Furthermore, the milk delegation orders issued to provinces pursuant to the Agricultural Products
Marketing Act , R.S.C. 1985, c. A-6, have been amended to remove provincial authority regarding
CEM or cream.12  As a consequence of the changes made under the Dairy Products Marketing
Regulations  and the Ministerial Direction13, the regional pooling agreements (the P-9, P-6 and P-4
Agreements) do not apply to CEM.  The national pooling agreement, the P-9, provides for a domestic
surplus management Class, Class 4(m).
(iii) Previous panel and Appellate Body judgements
2.5 In its report of 17 May 1999, the original panel in  Canada - Dairy concluded that Canada
"through Special Milk Classes 5(d) and (e) … has acted inconsistently with its obligations under
Article 3.3 and Article 8 of the Agreement on Agriculture  by providing export subsidies as listed in
Article 9.1(a) and Article 9.1(c) of that Agreement in excess of the quantity commitment levels
specified in Canada's Schedule; … "14  In its report of 23 September 1999 the Appellate Body upheld
the findings in the original panel report with respect to Articles 3.3, 8 and 9.1(c) of the Agreement on
Agriculture .15  In respect of Article 9.1(a), the Appellate Body did not uphold the reasoning of the
panel, but it reserved its judgement on the question of whether Classes 5(d) and 5(e) conferred export
subsidies within the meaning of Article 9.1(a).16  The Appellate Body recommended that Canada
bring those measures found to be inconsistent with its obligations under the Agreement on Agriculture
into conformity with that agreement.17  Canada's implementation of the Appellate Body ruling has
resulted in the elimination of Special Milk Class 5(e) and the restriction of Class 5(d) to the export of
dairy products within Canada's export subsidy commitment levels.18
2.6 Considering that Canada had failed to comp ly with the above-mentioned recommendations
and rulings of the DSB by 31 January 2001 or since the expiry of that period, New Zealand and the
United States requested consultations with Canada on 2 February 2001 (WT/DS103/15-WT/DS113/15) and subsequently the establishment of a panel pursuant to Article 21.5 of the DSU
(WT/DS103/16-WT/DS113/16).
2.7 The Article 21.5 panel submitted its report to the parties on 5 July 2001 (WT/DS103/RW).
The panel concluded that Canada had continued to act inconsistently with its obligations under
Articles 3.3 and 8 of the Agreement on Agriculture , by providing export subsidies within the meaning
                                                     
7 R.S.C. 1985, c. C-15 (Panel Report, Canada – Dairy (Article 21.5 – New Zealand and US) , para. 3.6).
8 SOR/94-466 (Exhibit CDA-1B).  The Dairy Products Marketing Regulations were amended by  the Regulations
Amending the Dairy Products Marketing Regulations , C. Gaz. 2001.II.57 (Panel Report, Canada – Dairy (Article 21.5 –
New Zealand and US) , para. 3.6).
9 Supra , note 31, s. 3(3) and s. 7 (Panel Report, Canada – Dairy (Article 21.5 – New Zealand and US) , para. 3.6).
10 Ibid., s. 4, 5 and 6.
11 Ibid., s. 3(3).
12 See Order Amending Milk Orders Under the Agricultural Products Marketing Act , SOR/2001-16, C. Gaz.
2001.II.67 (Panel Report, Canada – Dairy (Article 21.5 – New Zealand and US) , para. 3.6).
13 Published in Canada Gazette, 3 January 2001.
14 Para. 8.1(a).
15 Appellate Body Report, Canada – Dairy , DSR 1999:V, 2057, para. 144(b).
16 Ibid., para. 144(a).
17 Ibid., para. 145.
18 Canada Gazette Part II, Vol.135, No.1: Regulatory Impact Analysis Statement for the Regulations under the
Canadian Dairy Commission Act amending the Dairy Products  Marketing Regulations.  The amendment to section 7.1
"provides that export subsidies for Canadian dairy products  will be provided only by a program established under
para. 9(1)(i) of the CDC Act (Special Milk Class 5(d))."  (New Zealand's Exhibit NZ-6)WT/DS103/RW2
WT/DS113/RW2
Page 6
of Article 9.1(c) of the Agreement on Agriculture  in excess of its quantity commitment levels
specified in its Schedule for exports of cheese, for the marketing year 2000/2001.
2.8 On 4 September 2001, Canada appealed certain issues of law covered in the Article 21.5
panel report, pursuant to Article 16.4 of the DSU.  The Appellate Body rendered its report on3 December 2001.
19  In reversing the panel's finding on th e correct benchmark for the determination
of the existence of "payments" within the meaning of Article 9.1(c) of the Agreement on Agriculture
and in consequently reversing the panel's findings that the provision of CEM constitutes "payments"
and export subsidies under that provision, the Appellate Body also reversed the panel's finding that
Canada has acted inconsistently with its obligations under Articles 3.3 and 8 of that Agreement.
Because the Appellate Body considered that in light of the factual findings by the panel in Canada –
Dairy (Article 21.5 – New Zealand and US)  it was unable to determine whether or not the measure at
issue was an export subsidy within the meaning of Article 9.1(c) and consequently whether or not
Canada's measures were consistent with its WTO obligations, it could not complete the analysis of the
parties' claims under Article 10.1 of the Agreement on Agriculture and declined to examine the
consistency of the measure at issue with Article 3.1 of the Agreement on Subsidies and
Countervailing Measures ( SCM Agreement ).20
                                                     
19 Appellate Body Report, Canada - Dairy  (Article 21.5 – New Zealand and US) .
20 Ibid., paras. 121, 125, 126 and 127.WT/DS103/RW2
WT/DS113/RW2
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III. MAIN ARGUMENTS
3.1 New Zealand  requests that the Panel find that Canada has breached Articles 3.3, 8 and 9.1(c)
of the Agreement on Agriculture .  In the alternative to its argument on Article 9.1(c), New Zealand
requests the Panel to find that Canada has breached Article 10.1 of the Agreement on Agriculture .
New Zealand therefore requests the Panel to recommend to the DSB that Canada bring its export
measures into conformity with its obligations under the Agreement on Agriculture .
3.2 The United States  requests that the Panel find that Canada has breached Articles 3.3, 8, and
9.1(c), or alternatively, Article 10.1, of the Agreement on Agriculture .  In addition, the United States
requests that the Panel find that Canada has breached Article 3 of the SCM Agreement.  The
United States requests that the Panel direct Canada to bring its export measures for dairy products into
conformity with its WTO obligations.
3.3 Canada  requests the Panel to reject the claims of New Zealand and the United States and find
that Canada's measures, including federal measures and the provincial measures of British Columbia,
Alberta, Saskatchewan, Manitoba, Ontario, Quebec,  Nova Scotia, New Brunswick and Prince Edward
Island, fully implement the recommendations and rulings of the DSB and are consistent with Canada's
WTO obligations.
A. BURDEN OF PROOF
3.4 Referring to Article 10.3 of the Agreement on Agriculture,  New Zealand  and the
United States  submitted that Canada bears the burden of establishing that its dairy management
measures, including those taken to comply with the DSB's recommendations, have not subsidized
dairy exports in excess of its commitment levels under that Agreement .
3.5 Canada does not contest its burden of proof under Article 10.3 of the Agreement on
Agriculture .
B. ARTICLE 9(1)( C) OF THE AGREEMENT ON AGRICULTURE
3.6 The Complainants  submitted that there are two key questions to be resolved in determining
whether Canada's CEM scheme provides export subsidies within the meaning of Article 9.1(c) of theAgreement on Agriculture .  First, whether there have been "payments" on the export of an agricultural
product and, second, whether any such payments have been "financed by virtue of governmental
action."  According to the complainants, the CEM scheme fulfils both of these conditions and thus
constitutes an Article 9.1(c) export subsidy.
1. "Payments"
3.7 The Complainants noted that in the original Canada - Dairy proceeding
21, the Appellate
Body accepted that the concept of "payments" in Article 9.1(c) of the Agreement on Agriculture
includes the notion of "payments-in-kind", and this was not contested in Canada - Dairy
Article 21.5 ."22  Furthermore, it is uncontested that the provision of a product at a discount constitutes
such an in-kind payment because it is equivalent to  the provision of a portion of the product free of
charge.
                                                     
21 Appellate Body Report, Canada - Dairy  (Article 21.5 – New Zealand and US) , para. 112.
22 Ibid., para. 71.WT/DS103/RW2
WT/DS113/RW2
Page 8
3.8 Canada  submitted that for a measure to fall within Article 9.1(c) of the Agreement on
Agriculture , there must be "payments on the export of an  agricultural product that are financed by
virtue of governmental action."
(i) Average total costs of production-proper value
3.9 The Complainants  noted that in Canada - Dairy Article 21.5  the Appellate Body gave
content to its statement in Canada - Dairy  that discounts amounting to "payments" arose because the
Special Milk Class milk for export was sold to processors at "reduced rates (that is at below market-
rates)."23 At issue was the question of the benchmark against which any such "discount" should be
measured.  The Appellate Body stated that the existence of a "reduced rate" and hence a "payment"
should be determined by comparing the CEM price to the " proper value " of the milk to the
producer.24  If the CEM price proved to be lower than the milk's value to the producer, the producer's
sale of that milk at the CEM price would constitute a transfer of resources - a "payment" - to the
export processor.
3.10 This led the Appellate Body to conclude, the Complainants continued, that the "proper value"
of milk to producers, should be measured in terms of the producers' "average total costs of
production".  If the export prices obtained by producers were sufficient to recover their average fixedand variable costs of production, they would not suffer a loss (i.e. a transfer of resources) in the long
run.  In that circumstance, under the Appellate Body's standard, no "payments" would take place
within the meaning of Article 9.1(c) of the Agreement on Agriculture .  It concluded that the "average
total cost of production" must be determined "by dividing the fixed and variable costs of producing
all milk, whether destined for domestic or export markets, by the total number of units of milk
produced for both these markets."
25
3.11 The Complainants submitted that there is no universal criterion or standard for determining
"cost of production". However, for the purposes of determining whether there has been a "payment"
within the meaning of Article 9.1(c) of the Agreement on Agriculture , the Appellate Body has set out
what has to be taken into account in this case in an "average total cost of production" determination.It noted that milk production "requires an investment in fixed assets, such as land, cattle and milking
facilities, and an outlay to meet variable costs, such as labour, animal feed and health-care, power and
administration."
26  These "fixed and variable costs", it concluded, would have to be recouped in the
long-term in order for producers to be profitable.27
3.12 Referring to paragraph 87 of the Appellate Body  report  in Canada - Dairy Article 21.5
concerning fixed and variable costs and to paragraph 92 with respect to the correct benchmark in this
case, Canada  submitted that the method adopted by the Appellate Body is to determine what it costs
a producer to produce milk, so that this number can be fairly compared to prices of CEM.
Furthermore, the use of the words "investment" and "outlay" is indicative of what the Appellate Body
considered as cost of production in the context of costs actually incurred and expended by the
producer.  Canada considered that these words, al ong with the idea expressed by the Appellate Body
that "fixed and variable costs are the total amount which the producer must spend in order to producethe milk and the total amount it must recoup in the long-term to avoid making losses", do not allow
for the consideration of imputed amounts.
                                                     
23 Appellate Body Report, Canada - Dairy  (Article 21.5 – New Zealand and US) , para. 113.
24 Ibid., para. 74.
25 Ibid, para. 96.
26 Ibid., para. 87
27 Ibid.WT/DS103/RW2
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3.13 Canada submitted that the approach adopted by the Appellate Body is consistent with the
arguments put forward by Canada before the first Canada - Dairy Article 21.5 panel.  This method
also provides a relevant standard for assessing an individual producer's cost of production for
purposes of these proceedings, as it is based on values to which producers actually respond whendeciding whether to enter the export market, and not on government intervention.  This method of
measuring cost of production is also consistent with the Generally Accepted Accounting Principles
(GAAP).  In the context of GAAP, "cost" is "[t]he amount of the expenditure to obtain goods or
services"
28 and "expenditure" is "[a] disbursement, a liability incurred … for the purpose of obtaining
goods."29  Therefore, Canada submitted, the costs to be included in the measurement of cost of
production are those that result from actual expenditures and would exclude imputed costs and
returns.
(ii) The Canadian Dairy Commission
3.14 The Complainants  noted that the Canadian Dairy Commission (CDC) makes an annual cost
of production determination as the basis for setting the target price for industrial milk.  Thus, the
Complainants considered it appropriate to look at that determination to see whether it provides an
assessment of the "average total cost of production" that conforms with the test set out by theAppellate Body.
3.15 The Complainants further noted that the gu idelines for the CDC's cost of production
determination are set out in the CDC publication National Cost of Production Input to the Pricing of
Industrial Milk, Handbook of COP Pr inciples and Practices (CDC Handbook ).
30  The stated policy
objective of the CDC's cost of production exerci se is to provide "efficient producers with the
opportunity for a fair return for their labour and investment."31  The cost of production determined by
the CDC has traditionally been based on a consolidation of the results of provincial cost of production
surveys.  The provincial surveys cover a sample of dairy operations designed to represent "an efficient
segment of the dairy industry."32  Each province calculates the cost of production for a hectolitre of
milk "on a standardised basis, for each producer in each provincial sample."33  The data is "collected
for the provincial study by trained technicians" and "accounting concepts are based on generally
accepted accounting principles (GAAP) and that "[e]ach provincial study is subject to audit by the
CDC."34  The most recent survey was completed by the CDC itself using a uniform approach across
Canadian provinces.35  Thus, the national cost of production measurement that results from the CDC's
calculation represents the cost of production of a standardised, efficient producer.
3.16 The Complainants submitted that although the CDC's methodology understates the actual
costs of milk production, it appears to conform in large measure with the requirements fordetermining the average total cost of production set out by the Appellate Body in Canada - Dairy
Article 21.5 .  The four major components utilised by the CDC for determining the cost of production
are cash costs, government rebates and other reve nues, capital costs, and family labour.  The CDC
accounts for both the fixed and the variable costs incurred in the production of milk.  It identifies
labour as a cost and includes paid labour, family labour and management. It includes a return oninvestment in fixed assets, thus, according to the Complainants, addressing capital costs.  The
Complainants considered that it is essential that the CDC do all of this in order to ensure that the
                                                     
28 Terminology for Accountants , page 58 ("cost").  (Canada's Exhibit CDA-1).
29 Ibid., page 88 ("expenditure").
30 Exhibit NZ-4 and Exhibit US-22.
31 CDC Handbook , section 2.1.
32 Ibid.
33 Ibid., section 4.3.
34 Ibid.
35 See Exhibit NZ-5, CDC Executive Summary of 2000 COP Determination.WT/DS103/RW2
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efficient producer does not suffer a loss over the long term.  The CDC's cost of production
determination is part of the process leading to the setting of the target price for industrial milk.  That
target price has to allow efficient milk producers "to recover their cash costs, labour and investment
related to the production of industrial milk."36  The Complainants considered, however, that although
the CDC's determination of the cost of production represents a reasonable guide to the "average total
cost of production" test set by the Appellate Body, it is a conservative determination of the cost of
production of milk in Canada.
3.17 The United States  recalled that every year the CDC surveys Canadian dairy farms in order to
calculate their cost of production.  The CDC then us es this information to set the domestic price for
milk (see paragraph 3.14 above).  The United States was of the view that the methodology used by the
CDC corresponds to the standard set forth by the Appellate Body in this case.
3.18 Recalling the statement by the Appellate Body that the average total cost of production
calculation had to be made on the basis of "all" milk37, the Complainants  noted that the CDC's
determination of cost of production excludes certain producers from its calculation.  First, producers
whose production is less than 60 per cent of the average provincial yearly production are excluded.38
This is essentially an exclusion of small, inefficient farms and thus of farms with higher production
costs.  Second, the CDC Handbook explains that the calculation does not include the 30 per cent of
farms with the highest costs of production.39  These exclusions are designed to meet the CDC's
objective of focusing on efficient producers.  However, since those excluded are producers with a
higher cost of production, the cost of production measurement reached by the CDC underestimates the
average total cost of production of milk in Canada as a whole and thus lowers the reported averagetotal cost of production.
3.19 Canada submitted that contrary to the position adopted by the Complainants (see
paragraphs 3.14-3.18 above) the CDC methodology does not correspond to the requirements for
determining the average total cost of production set out by the Appellate Body.  The CDC
methodology is prepared for a different purpose than  the one put forward by the Appellate Body.  The
CDC methodology, which reflects government economic and social policy objectives (i.e.,  the
government's intervention in the marketplace), embodies not only actual monetary costs incurred in
milk production, but also imputed returns to dairy farm resources that do not involve actual outlays.
3.20 With respect to the claim by the Complainants in paragraph 3.18 above concerning the
exclusion of small producers from the sample, Canada explained that only the province of Ontario
collects cost of production data from a sample representative of all dairy farms, regardless of
production levels.  Data from this province show that the cost of production for all dairy farms is notsignificantly higher than the cost of production for those with production of at least 60 per cent of the
provincial average.  Since Ontario is one of the largest milk-producing provinces, it is not
unreasonable to assume that these results are representative of the entire country.  Canada submitted
in conclusion that the data do not support a finding  that a "payment" within the meaning given to that
term by the Appellate Body under Article 9.1(c) for purposes of these proceedings is being made byindependent milk producers to dairy processors on the production and sale of CEM.
(iii) Administered domestic price
3.21 Referring to Canada's arguments with respect to the inappropriateness of the CDC's
calculations in relation to the Appellate Body's standard (see paragraph 3.19 above), the
                                                     
36 CDC Handbook,  section 2.2.
37 Appellate Body Report, Canada - Dairy  (Article 21.5 – New Zealand and US), para. 96.
38 CDC Handbook , section 4.1.
39 Handbook of COP Principles and Practices, page 7.WT/DS103/RW2
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United States  submitted that it is the actual economic cost of production which is being measured in
both instances.  That the ultimate price set by the Canadian government reflects "government
economic and social policy objectives" does not affect the accuracy or relevance of the underlying
cost data.  The Appellate Body recognized that it is the administered price  that is based "not only on
economic considerations but also on other social objectives," not the underlying cost data.40  Indeed,
fundamental economic theory holds (as well as just basic common sense) that the absence of a cash
outlay does not mean that a cost was not actually incurred.
3.22 Thus, the inclusion of costs for family labour, management services and capital is consistent
with the Appellate Body standard and grounded in ec onomic theory.  These are costs that are incurred
by the producer and if not recovered will result in losses in the long run.  This is precisely what the
Appellate Body's standard seeks to measure.  In economic terms, the United States continued, these
costs represent opportunity costs or the costs associated with opportunities that are foregone by not
putting the producers' resources to their best use.41  These resources include family labour, its
managerial services and its capital.  There is a cost associated with using all of these resources.
3.23 Canada  submitted that the CDC cost calculation is used as the major element in setting the
administered domestic price.  Accordingly, the CDC cost calculation together with the administeredprice ensures that the statutory objective of the CDC, which is to "provide efficient producers of milk
and cream with the opportunity of obtaining a fair return for their labour and investment"
42, is met.
To guarantee that the calculation of target returns provides a fair return to "efficient producers", the
CDC methodology eliminates 30 per cent of the producers in each provincial sample with the highest
cost of production.
3.24 New Zealand  submitted that there are two distinct aspects to the determination of the
administered price for milk.  The first is the computation of the cost of production of milk on the basis
of surveys, and the second is the setting of the target or administered price in the light of that
computation and of other factors.  The former, as described in the CDC Handbook, is an objective
process.  Costs are based on the results of provincial surveys, and there is no suggestion that the datain these surveys are anything other than objective.  Nor is there a suggestion that the figures used are
not actual figures resulting from those surveys.  They are not figures that have been inflated or
discounted on the basis of economic and social objectives.
3.25 It is the second part of the process, the fixing of the administered price, New Zealand
continued, in which governmental economic and social objectives come into play.  The price can be
set above or below the amount determined by the cost of production calculation.  That is a matter of
social choice.  As well as taking the cost of production survey into account, the CDC sets the targetprice after giving consideration to "consultations with major dairy industry stakeholder
representatives from the farm, processing, further processing, restaurant and consumer sectors, as well
as other economic indicators".
43  That a choice exists here does not taint the CDC's methodology for
determining the cost of production and turn it into one that is based on social choice rather than on the
objective collection and computation of data.
                                                     
40 Appellate Body Report, Canada - Dairy (Article 21.5- New Zealand and US ), para. 81.
41  Mansfield, Edwin, Microeconomics:  Theory and Applications (Fourth Edition, New York:  W.W. Norton and
Company, 1982), p.178. Exhibit US-35.
42 Canadian Dairy Commission Act , R.S.C. 1985, c. C-7, section 8.  (Exhibit CDA-3)
43 See Exhibit NZ-7, "Increases to Support Prices for Butter and Skim Milk Powder", CDC News Release,
14 December 2001.WT/DS103/RW2
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(iv) Imputed costs
3.26 New Zealand  submitted that even if the government chooses an administered price which is
the same as the result of the CDC's cost of production analysis, this does not make that analysis any
less relevant to the Appellate Body's average total cost of production test.  Furthermore, both debt andequity represent alternative means of financing an investment in fixed assets.
3.27 Canada  explained that to meet the statutory objective described above (see paragraph 3.23
above), the CDC is required to include imputed or assigned returns to unpaid labour, management,
and owner's equity (i.e.,  residual amounts resulting from the operation of an enterprise) in its
calculation of cost of production.  However, such amounts are not actual outlays expended on the
production of milk, nor do they represent an investment in fixed assets and, according to Canada, it is
these that the Appellate Body sought to include in the total cost of production.  Accordingly, suchamounts should not be included in the cost of production calculated on the basis of the approach put
forward by the Appellate Body.
3.28 Returns on labour and equity are essentially the profits of the enterprise; Canada continued,
they are not costs of production.  The profit of an enterprise is the residual amount that is available
after the cost of production and other expenses are deducted from the revenues of the enterprise.
44
This profit is the amount that is available to remunerate those who have a stake in the enterprise for
their investment of capital and labour, and to reinve st in the enterprise.  In its report, the Appellate
Body did not consider profit as an amount that th e producer must spend to produce the milk or that
must be recovered in the long-term to avoid making losses.  Canada considered that there is therefore
strong support in the Appellate Body's reasoning that such  profit is distinct from and should not be
included in the calculation of cost of production.45
3.29 Referring to Canada's arguments above and to Article 31 of the Vienna Convention on the
Law of Treaties , New Zealand  considered that the context in  which the words "investment" and
"outlay" appear makes very clear that the Appellate Body refers to the production of goods and
services involving an "investment in economic resources"46, i.e. far from the "actual expenditures"
limitation that Canada wishes to place on the term investment.  Further, after identifying the
"investment" and "outlay" that will represent the producer's fixed and variable costs, the Appellate
Body said, "[t]hese fixed and variable costs ar e the total amount which the producer must spend in
order to produce the milk and the total amount it must recoup in the long-term to avoid making
losses."47  Canada focuses on the notion of "spending", which accords with its view that only actual
expenditures are to be included, and ignores the notion of "recouping" in order to avoid losses.
New Zealand considered that a producer that sells its product at a price that does not allow it torecover imputed costs is absorbing those costs to the benefit of the purchaser.  This is nothing more
than a transfer of economic resources from the producer to the purchaser.  In the opinion of
New Zealand, the reasoning of the Appellate Body with respect to marginal costs also applies to
imputed costs.
                                                     
44 CICA Handbook – Accounting , vol. I (Toronto:  The Canadian Institute of Chartered Accountants, 1998),
Section 1000, para. 27 [hereinafter " CICA Handbook "].  (Exhibit CDA-4)
45 In the paragraphs of the Appellate Body report Canada - Dairy (Article 21.5 - New Zealand and US)  in which
the Appellate Body explained the meaning of total cost of production (particularly para. 87), profit is not mentioned. Para. 95contains a direct reference to profit, but the structure of this phrase "not only to recover the total cost of production, but also
in the hope of making profits" strongly suggests that, in the view of the Appellate Body, profit is distinct from average total
cost of production and, by extension, not part of the standard reflecting proper value.
46 Appellate Body Report, Canada - Dairy  (Article 21.5 – New Zealand and US) , para.  87.
47 Ibid.WT/DS103/RW2
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3.30 New Zealand submitted that generic definitions of terms without reference to the context in
which they appear or the purpose for which they are used are misleading.  GAAP does not provide a
universal definition of the words "cost" and "expenditure" applicable in all circumstances, and thus it
provides no guidance to the particular circumstances of determining whether payments within themeaning of Article 9.1(c) of the Agreement on Agriculture  have been made.  In short, it is not possible
to achieve the objective the Appellate Body was seeking to achieve by narrow definitions of the terms
"investment", "outlay", "cost" and "expenditure" that result in costs that producers incur being left out.
3.31 The United States  noted that according to the Appellate Body, analysis under Article 9.1(c)
must be based on a "standard that focuses upon the motivations of the independent economic
operator".
48  Consistent with this line of reasoning, the Appellate Body explained that "[f]or any
economic  operator, the production of goods or services involves an investment of economic
resources."49 The Appellate Body then offered some examples of the types of fixed and variable costs
that should be taken into account in calculating the cost of production for milk producers.  It is clear
from the Appellate Body's statements and reasoning that the production of milk involves an
"investment of economic resources," and that all economic costs should be taken into account, not just
actual cash outlays as argued by Canada.  If an economic operator recuperates only its actual cashoutlays, it will incur losses in the long run and eventually fail.  Canada's selective reliance upon the
use of the words "investment" and "outlay" is inconsistent with the context in which they were used
by the Appellate Body.
3.32 With respect to the arguments in paragraph 3.28 above concerning returns on labour and
equity, New Zealand  considered that Canada's use of the term "profit" is highly ambiguous.
New Zealand submitted, and as the CDC's cost of  production methodology recognises, that labour,
management and owner's equity are costs that are incurred by the producer.  Producers who do not
cover those costs in selling milk are not recouping their losses over the long term as the Appellate
Body contemplated.  Failure to include a return on family labour or on investment in the price that a
producer charges a processor involves a transfer of economic resources from the producer to theprocessor – precisely what the Appellate Body's test is seeking to discover.  Although, as pointed out
in paragraph 3.16 above, the CDC's methodology is a conservative one and underestimates the true
cost of production, it provides a reasonable guide to the application of the average total cost of
production test.
3.33 The cost of labour and equity capital represent an "opportunity cost", i.e., the income that
these resources could generate if put to an alternative use and this opportunity cost must be recovered
in the long run if a business is to continue.  It makes no economic sense to say that a producer whoemploys family labour has a lower cost of production than a producer who uses hired labour.  Nor
does averaging across producers produce a meaningful average total cost of production if the costs of
some producers (those who hire labour) are taken into account and the costs of other producers (those
who use family labour) are not.
3.34 The United States  considered that Canada’s suggestion (see paragraph 3.28 above) that the
farm which hires labour and management services is incurring a cost, while the farm that uses family
labour and management is making a profit is absurd.  It further submits that it is equally absurd to
suggest that the farm that finances its operations with debt incurs a cost (i.e. interest expense), but that
the farm that finances its operations with equity is making a profit.  Any economic operator, including
the Canadian dairy farmer, will take these non-cash costs into account in calculating its cost ofproduction to determine whether it is going to be able to stay in business in the long run.
                                                     
48 Appellate Body Report, Canada - Dairy  (Article 21.5 – New Zealand and US) , para. 92.
49 Ibid.,  para. 87.WT/DS103/RW2
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3.35 The United States noted that Canada does not dispute the accuracy of the CDC's calculation
of the cost of family labour, management and capital, which is relied upon by the Complainants.
Rather, Canada argues that, as a conceptual matter, those costs should not be included. According to
the United States, Canada's proposed standard does not represent the true economic cost of producingmilk and is not consistent with the Appellate Body report in this case.
3.36 Canada  considered that there are essentially four main points of contention between the
Parties in determining how to apply the standard put forward by the Appellate Body: (i) whether an
amount for imputed returns to family labour, management and owner's equity should be included in
the calculation of "average total cost of production"; (ii) how to treat marketing costs and quota;
(iii) whether the "average total cost of production" should be calculated on the basis of the total costs
of production of individual producers or the total costs rolled into a single industry-wide average; and(iv) Canada's presentation of its data on cost of production and CEM returns.
3.37 According to Canada, there are a number of reasons to reject the Complainants' position with
respect to imputed returns.  First, had the Appellate Body intended imputed returns or opportunity
costs to be included in the calculation of cost of production, it could have said so since it was aware of
their inclusion by the CDC in its calculation of a cost of production figure, as referred to inparagraph 100 of its report.  Instead, the Appellate Body described the cost of production standard to
be applied in these proceedings in terms of "investment"
50 and "outlay"51.  The words "opportunity
costs" or "imputed returns" do not appear in the language used by the Appellate Body.
3.38 Secondly, Canada continued, the inclusion of imputed returns in the calculation of cost of
production reflects the government's intervention in the domestic marketplace.  Imputed returns areincluded in the CDC methodology for calculating cost of production because the purpose of that
methodology is to set prices that provide dairy farmers "with the opportunity of obtaining a fair return
for their labour and investment."  The Appellate B ody was quite clear that, in determining whether a
"payment" exists under Article 9.1(c), a distinction had to be drawn between circumstances where
government intervenes in a marketplace and circumstances, as in this case, where a producer acts inthe ordinary course of business.  To accept the argument of the Complainants would be to substitute
the determination of an acceptable profit by private parties in commercial transactions with a
government assessment of what this profit should be, and, thus, to effectively draw the government
back in where it does not belong.
3.39 Further, returns on family labour, management and owner's equity are derived from the profits
of the dairy enterprise.  According to Canada, the Appellate Body did not intend to include any
measure of "profit" in its definition of total cost of production.  Its explanation of total cost ofproduction (particularly paragraph 87) does not include profit.  Paragraph 95 contains a direct
reference to "profit" and the structure of the se ntence "… not only to recover the total cost of
production, but also in the hope of making profits" in dicates in the view of Canada that the Appellate
Body considers that "profit" is distinct from "average total cost of production".  This is not surprising,
as independent milk producers do not need to recover "profits".  To avoid making a loss, producersneed to recoup their costs.
3.40 Canada considered that a determination of what constitutes an appropriate amount for
imputed returns to family labour, management and owner's equity is highly speculative and
subjective.  In commercial export transactions, profit margins are a function of individual decisions
made by each independent economic operator.   Thus, subjecting a determination of profitability toWTO scrutiny would be contrary to the requirement of the Appellate Body for an "objective
                                                     
50 Appellate Body Report, Canada - Dairy  (Article 21.5 – New Zealand and US), para. 87.
51 Ibid.WT/DS103/RW2
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standard".  To do so would also introduce uncertainty and unpredictability into export subsidy
disciplines under the Agreement on Agriculture .  Accepting the cost of production figure calculated by
the CDC would lead to these results because it includes a policy-driven determination of profitability.
The CDC methodology is appropriate for the purposes for which it is used.  However, this purpose isdifferent from the one put fo rward by the Appellate Body.
3.41 Finally, Canada reiterated that arguing that th e cost of production calculated by the CDC is
the appropriate benchmark is another way to reintroduce the same benchmark specifically rejected by
the Appellate Body.  The CDC calculation of cost of production is the major element in setting the
administered domestic price, and both are established through government intervention.  Comparing
the CDC cost of production to prices of CEM is, therefore, no different than comparing these prices to
Canada's administered domestic price.  Indeed, the cost of production calculated by the CDC varieslittle from the administered domestic price.
(v) Quota as an intangible asset
3.42 Another limitation on the CDC's cost of production determination, the Complainants
submitted, is the exclusion from the calculation of the cost of holding production quota.  There
appears to be no justification for this exclusion.  In Canada - Dairy Article 21.5 , the Appellate Body
stated that the cost of production calculation must  include the fixed costs of producing all milk.
52  The
cost of holding production quota is a fixed cost53 which would increase the CDC's total average cost
of production.
3.43 The Complainants submitted further that a quota is an intangible asset and a resource defined
by the International Accounting Standards Committee (IASC), as "(a) controlled by an enterprise as aresult of past events; and (b) from which future economic benefits are expected to flow to the
enterprise."
54  As such, the standard set for intangible assets by the IASC, (IAS 38) requires that it be
"amortised on a systematic basis over the best estimate of its useful life."55  New Zealand  added that
the IFCN includes quota in its list of factors to be incorporated in any dairy cost of production
calculation.56  Since quota represents a considerable expenditure by a producer,57 failure by the CDC
to include quota within its cost of production calculation again understates the true cost of production.
3.44 Canada  replied that there are several reasons why quota costs should not be included in such
a calculation.  First, quota is an entitlement to  sell milk onto the regulated domestic market at a
higher price; it is not a restriction on  production58 and there is no requirement in Canada for
producers to hold quota in order to produce and sell milk.  Furthermore, it does not make sense to
treat costs associated with the acquisition of quota as a cost of production of all milk, since producers
can and do produce and sell CEM without quota.  Arguing that quota represents a cost of productionis adding to the finding of the Appellate Body wo rds that are not there.  The Appellate Body has
called for an examination of costs that the producer spends in producing the milk.  Also, since any
quota costs are marketing expenses associated with sa les in the domestic market, it follows that these
                                                     
52 Appellate Body Report, Canada - Dairy  (Article 21.5 – New Zealand and US ), para. 96.
53 Panel Report, Canada - Dairy  (Article 21.5 – New Zealand and US) , para. 6.53 and footnote 147.
54 See Exhibit NZ-18, International Accounting Standards Committee, "International Accounting Standard:
Intangible Assets", September 1998, page 3.
55 Ibid, page 5.
56 See Exhibit NZ-6.
57 Panel Report, Canada - Dairy  (Article 21.5 – New Zealand and US) , para. 6.53 and footnote 147.
58 Quota only limits a producer's right to obtain the domestic administered price (specifically Classes 1 through
5(d) excluding 4(m)), not his or her overall production level.  However, a producer who pre-commits can also sell CEM
under contract.  Milk production in excess of domestic quota can be marketed under Class 4(m), albeit at a low price.  Also,the Panel will recall from the previous Article 21.5 proceedings that there are producers in Canada who do nothing otherthan produce commercial export milk and these producers do not hold any quota.WT/DS103/RW2
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costs should be recovered from returns obtained from that market.  Furthermore, Canada continued, as
concerns the argument with respect to amortisation of a quota due to its nature as an "intangible asset"
in paragraph 3.43 above59, no such amortisation is appropriate.  North American accounting standards
do not require the cost of acquisition of assets such as quota to be amortised at all.  The useful life ofquota is indefinite.
60  According to CICA, "…[w]hen an inta ngible asset is determined to have an
indefinite useful life, it should not be amortised until its life is determined to be no longer
indefinite."61  The Financial Accounting Standards Board of the United States also states that
intangible assets with indefinite useful lives do not need to be amortised.62  However, an annual test of
the value of the asset compared to its purchase cost is required.  In the case of Canadian dairy quota,
no impairment of value would be detected by such a test and therefore no current year cost in 2000 or
2001 would be recorded for quota in the financial statements of Canadian dairy farms preparedaccording to GAAP.  Accordingly, there are no quota costs that need to be considered.
3.45 With respect to Canada's argument that quota is not a restriction on production (see
paragraph 3.44 above) New Zealand  submitted that this argument is a continuation of Canada's
distinction between costs related to production and costs related to selling.  New Zealand reiterated
that a producer has to recover all of these costs if it is to remain in business, regardless of whetherthose costs are listed in the same column on a balance sheet.  Thus, quota costs cannot be dismissed
by treating them as relating to sale rather than to production.  As concerns Canada's argument with
respect to the indefinite life of a quota, New Z ealand submitted that regardless of whether intangible
assets should or should not be amortised, quota represents an investment that has to be recovered if
the producer is to avoid losses over the long term.  Hence, quota also has to be included indetermining the average total cost of production if the result is to provide a meaningful test of whether
there is a transfer of economic resources from producers to processors for export.
3.46 The United States  considered that regardless of how quota is treated under accounting
principles, it represents an economic cost to farmers that produce for the domestic market - a cost that
is usually quite high.
63  In accordance with the Appellate Body's determination, the cost of production
should be based on all milk production, regardless of the milk's ultimate destination.  Accordingly,
any and all costs associated with the domestic market, such as quota, should be included in the
benchmark.  Even Canada admits that this is a cost that producers will seek to recover from the
returns of milk sold in the domestic market.
(vi) Cost of capital
3.47 The United States  considered that the CDC's calculation is understated also because the cost
of capital is calculated based upon the acquisition cost or book value of assets, such as land, asopposed to the market value of the assets.
64  The real cost of production for a producer is dependent
                                                     
59 The IASC is an advisory body to national standards setters;  however all the regulatory and compliance force is
at the national level.  Canada notes that on the IASC web site  (http://www.iasc.org.uk/), the IASC itself says that it "has no
authority to require compliance with its accounting standards".
60 CICA Handbook – Accounting , Section 3062, para. 15 states that "[w]hen no legal, regulatory, contractual,
competitive, economic or other factors limit the useful life of an intangible asset to the enterprise, the useful life of the a sset
is considered to be indefinite."  (Exhibit CDA-6)
61 Ibid.,  para. 10.
62 Goodwill and Other Intangible Assets , Summary of Statement No. 142 (Financial Accounting Standards Board),
June 2001.  (Exhibit CDA-7)
63 Indeed, Canada itself has emphasised that "there is an active commercial market in the trading of quota at
privately negotiated rates."(See para. 54 of the second submission of Canada in the proceedings in the first recourse to
Article 21.5 of the DSU.)  For example, for butter fat, quota can cost as much as CDN $25,000 per kilogram in Quebec andCDN $20,000 per kilogram in Ontario.
64 Exhibit US-22, page 3.WT/DS103/RW2
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upon the current market value of the property, not what that particular producer happened to pay for
the asset any number of years ago.
3.48 With respect to the argument by the United States in paragraph 3.47 above concerning capital
costs, Canada  explained that GAAP requires assets to be recorded at their historical cost.  Financial
statements are prepared primarily using the historical cost basis of measurement whereby transactions
and events are recognized in financial statements at the amount of cash or cash equivalents paid or
received or the fair value ascribed to them when they took place.65  Other bases of measurement are
also used but only in limited circumstances.66
3.49 The United States  responded that, regardless of how capital is recorded according to
accounting principles, its economic cost is measured by its market value.  Thus, the fact that the CDC
uses book value to estimate the cost of capital results in an understatement of the cost of production.However, the fact that the CDC methodology understates the cost of milk production does not mean
that the CDC methodology cannot be used in this proceeding.  As explained, for instance, in
paragraphs 3.53 - 3.54 above, even with this understated cost estimate, the average CEM price is
below the average total cost of production for dairy farmers in Canada.
(vii) Cost of Marketing Milk
3.50 Canada  was also of the view that, in accordance with the approach put forward by the
Appellate Body, costs of marketing  milk (i.e. , transportation, administration and marketing fees)
should not be included in the calculation of cost of production of milk, as these are not outlays that
the producer must incur in the physical production of milk to the point of the farm gate.  This is
consistent with GAAP, which holds that production costs are classified separately from sales andmarketing expenses.
67  Canada submitted that while marketing expenses are not costs of production, a
producer would normally seek to recover those expenses from the returns obtained from the market in
which the goods are sold.
3.51 Canada submitted that, contrary to what the Complainants assert, Canada did take marketing
costs into account.  However, marketing costs are not production costs.  Including these in cost ofproduction would therefore not be consistent with the Appellate Body's approach based on the cost of
producing milk, not marketing milk.  In Canada's view, the Complainants make an assertion, which is
not supported by the words of the Appellate Body.  As mentioned above, while marketing costs are
not production costs, they are costs that must be recovered if a producer hopes to make a profit.
Although Canada did not include marketing costs in its calculation of cost of production, Canada did
deduct marketing costs attributable to sales in the export market from the prices of CEM to reflect
actual returns from sales in that market (see also paragraphs 3.50 above and 3.65 below).  Havingdone this, Canada considered that it has provided a fair and consistent comparison between the cost of
producing milk and the net returns from selling it.
3.52 The Complainants  considered that the farm gate is only relevant if the sale takes place there.
In short, the exclusion of marketing costs from the calculation of the average total cost of production
undermines the value of that test for determining whether producers are transferring economicresources to processors.  The Complainants submitted that the Appellate Body set a standard which
included all costs an economic operator must recover in order to avoid incurring losses in the long
run.  Indeed, Canada even acknowledges that the producer will attempt to recover marketing costs
                                                     
65 CICA Handbook – Accounting , Section 1000, para. 53.  (Exhibit CDA-4)
66 Ibid., para. 54.
67 CICA Handbook – Accounting , Section 3030, para. .06.  (Exhibit CDA-5)WT/DS103/RW2
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from the sale of milk. As a matter of fact, the Complainants added, there is no other revenue stream
from which to recover these costs or to which these costs should be allocated.
(viii) Calculation of average total cost of production (single producer versus industry-wide
average)
3.53 The Complainants  noted that in Canada - Dairy Article 21.5 , the Appellate Body took the
view that there would be "payments" within the meaning of Article 9.1(c) of the Agreement on
Agriculture  if the price paid for milk by processors for export was lower than the "average total cost
of production."  They considered that in the pres ent case, even the CDC's own calculation of cost of
production shows that test is easily met.  The Complainants further noted that based on this data, the
CDC estimated that the average total cost of production per hectolitre of milk in Canada was
CDN $57.51 in 1998, CDN $56.43 in 1999, CDN $57.27 in 2000 and CDN $58.12 in 2001.  This dataalone is sufficient to establish that Canada's average total cost of production exceeds CEM prices by a
substantial margin.  Public information posted by Ontario and Quebec show that the weighted average
price of CEM in the 12-month period between August 2000 and July 2001 was CDN $29.
68   
3.54 Thus, the United States submitted, the average total cost of production exceeded the average
price for that period by CDN $28.27.69  Further, inasmuch as it is extremely unlikely that costs of
production could have dropped more than CDN $20 since July 2001 (the last dairy year for which
CDC data is presently available), it is a virtual certainty that the average total costs of production (as
estimated by the CDC) have exceeded CEM prices since that time.  Adjusting for the CDC's
exclusions as described above would show that the difference between CEM prices and producers'
costs of production (and hence the size of the "payments" for Article 9.1(c) purposes) is much greaterthan the CDN $20 plus margin that the basic comp arison of CEM prices and CDC data above would
suggest.  Thus, producers have failed to recover their fixed and variable costs by a substantial margin
making the so-called "market" transactions for CEM demonstrably uneconomic in the long run.  The
Appellate Body's test for the existence of "payments" under the CEM scheme is easily met.
3.55 The Complainants  concluded that, applying the test set out by the Appellate Body in Canada
- Dairy Article 21.5 , processors have access to milk at a price that is less than the "average total cost
of production" of that milk.  In the words of the Appellate Body, "the price charged by the producer is
less than the milk's proper value to the producer."
70  Accordingly, Article 9.1(c) "payments" from
producers to export processors have occurred under the CEM scheme.
3.56 Canada  submitted that, when applying the approa ch put forward by the Appellate Body to
calculate a producer's on-farm average total cost of production for all milk, the result would be a
figure that would include the following costs:  costs associated with fixed costs (i.e., interestpayments, depreciation of buildings and equipment, and net heifer replacement cost) and an outlay to
meet variable costs (i.e.,  costs for materials such as feed, seed, fertilizer, and water; costs for hired
labour; costs of farm administration; and costs for property taxes and insurance).  The complete list of
elements in the calculation appears in "Explanation of COP Calculation".
71
3.57 Based on the above, Canada explained that it calculated producers' average total cost of
production, relying on the most recent and comprehensive data on milk production costs from annual
provincial surveys based on a statistically valid national sample of milk producers, thus obtaining a
representative sample of 274 dairy farms (broke n down into "deciles") whose costs are surveyed.
These data were for the year 2000.  Canada noted that the CDC uses the same data in establishing its
                                                     
68 Exhibit US-3.
69 Ibid.
70 Appellate Body Report, Canada - Dairy  (Article 21.5 – New Zealand and US) , para. 73.
71 Exhibit CDA-8WT/DS103/RW2
WT/DS113/RW2
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cost of production figure.  The validity of using these data in making the cost computations for
purposes of these proceedings is not in dispute.
3.58 The number of producers in the sample from which the data are gathered is considered
representative of the population of producers in Canada.72  To be consistent with the approach put
forward by the Appellate Body, Canada included the production outlays of the 30 per cent high cost
producers that are excluded by the CDC in its methodology.  In other words, the cost of production
figures presented by Canada are based on the entire population in the sample, and not just the most
efficient 70 per cent.  Although the Complainants ha ve criticised that aspect of the CDC methodology,
Canada was of the view that its method of calculating cost of production resolves the Complainants
complaint.
3.59 There is a significant variation of average to tal cost of production among individual producers
given that in Canada there are in excess of 19,000 dairy production enterprises.  Applying the
Appellate Body's approach as detailed above sh ows total cost of production figures ranging from
CDN $18.53/hl for the lowest decile73 to CDN $46.60/hl for the highest decile.  Given the Appellate
Body's focus on the cost of production of individu al producers and not an industry-wide average,
Canada was of the opinion that it is more relevant for the purposes of these proceedings to examine arange of total costs of production and not a single average total cost.
74  The results of Canada's cost of
production computations are presented in Exhibit CDA-9.75
3.60 With respect to Canada's examination of "a range of total costs of production and not a single
average total cost." (see paragraph 3.56 above), the Complainants  were of the view that this is not
consistent with the Appellate Body's requirement that the "payment" is to be measured by the averagetotal cost of production for all milk.  New Zealand  considered that, as a matter of principle, the
determination of whether subsidization exists on the basis of deciles of producers – groups that may
be constantly changing – does not provide any sort of predictability either in terms of making WTO
commitments or in terms of applying them.
76   Nor can the question of subsidization depend upon
whether a particular individual producer sells abov e or below the cost of production.  Contrary to the
express words of the Appellate Body and to the pract ice of the CDC, Canada seeks to reinterpret the
requirement that all milk be considered in determining the average total cost of production as a "focus
on the cost of production of individual producers and not an industry-wide average".  Canada cites no
authority for this proposition.
3.61 The United States  submitted that the Appellate Body did not find that the existence of a
"payment" under Article 9.1(c) does depend upon whet her any given individual producer may or may
not happen to recoup its total cost of production.  The United States further submitted that, Canada'sstatement that the Appellate Body "focus[ed] on the cost of production of individual producers and
                                                     
72 The data used do not include producers whose milk production is less than 60 per cent of the annual average in
their province.  Thus, Canada is unable to include those producers in its calculations.  However, those small farms provide
18 per cent of Canada's total milk production.  Since the average production costs are weighted by production, the omission
of this small sub-population should not lead to a dissimilar result.
73 All producers in the data sample were ranked according to their cost of production and then divided into ten
equal groups (deciles).  The lowest decile is the one with the lowest average cost.  Exhibit CDA-9 presents the results for alldeciles.  Commercial export milk prices and returns are also presented by deciles.
74 For any given statistical average, some farms will necessa rily be above and some below, especially where costs
vary widely (as dairy production costs do).  That a producer may fall above an industry average production cost does notaffect that farmer's production and sales decisions, or determine whether he or she may make money in a particular market ata given time and price.  What matters is the producer's cost structure and other individual circumstances, not industry cost
averages.
75 Cost of Production Results.  (Exhibit CDA-9)
76 The European Communities also  raises concerns about the predictability  of individual-based producer cost of
production determinations.  European Comm unities' Third-Party Submission, para. 13.WT/DS103/RW2
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not an industry-wide average" (see paragraph 3.56 above) is contradicted by the Appellate Body's
explanation of the calculation of the new standard.  Referring to paragraph 96 of the Appellate Body's
report with respect to  all milk, the United States submitted that the Appellate Body was focused on
an industry-wide average, and not on individual producers.  For this reason, and other reasonsexplained below, Canada's exhibits, including exhibit 14 in particular, should be disregarded because
they are only based upon the cash outlays of individual producers (broken down into "deciles") and
therefore are inconsistent with the Appellate Body's standard.
3.62 Canada  submitted, with reference to Complainants' arguments for an industry-wide "average
total cost of production", that the Appellate Body's reference to "all milk" in paragraph 96 of its report
refers to the need to include the production costs of all milk, domestic and export.  It nowhere says or
suggests that the cost of production analysis requires the averaging of all producers into a singleindustry-wide cost.  As concerns "the milk produc ers" in paragraph 104, the Appellate Body stated
that the standard for these proceedings is "the average total cost of production of the milk producers".
"Milk producers" cannot automatically be interprete d as meaning the "industry".  Rather, a review of
the Appellate Body's report and the words used in the finding on "payment" supports Canada's
position that "average total cost of production" be calculated on an individual producer basis ratherthan on an industry-wide basis.
3.63 With respect to the number of instances in the Appellate Body report where it referred to
producer in the singular, Canada submitted that the focus should be on the costs associated with the
actual producer, not the costs associated with the industry as a whole.  Consistent with the approach of
the Appellate Body, Canada recorded all actual production costs for a representative sample ofindividual producers in the industry and presented these figures in deciles and ranges.  Presentation on
a basis of ranges is, according to Canada, the best available measure of individual producers' costs and
decisions.
3.64 The next step in the analysis of whether a "payment" exists under Article 9.1(c), Canada
submitted, is to compare the total average cost of production of individual producers against thereturns realised on sales of CEM.  Accordingly, Cana da has identified the prices of CEM to which the
cost of production ranges of individual producers should be compared.
3.65 The only prices of CEM publicly available in Canada are from the three provinces that have
electronic commercial exchanges (i.e.,  bulletin boards), namely Quebec, Ontario, and Manitoba which
account for approximately 80 per cent of all production of CEM.
 77  CEM prices are not readily
available from the other provinces as this informati on is proprietary and confidential in nature.  The
information obtained from these commercial exchanges reveals that from August 2000 (i.e.,  the date
when commercial export transactions began) to January 2002,  CEM prices ranged from a low of
CDN $23.79/hl to a high of CDN $40.12/hl.78  It should be noted, Canada continued, that prices on
the commercial exchanges overstate the actual returns to producers because they include marketing
expenses.79  As a result, Canada deducted these amounts from the prices referred to above.80  With
these deductions, the CEM returns range from a low of CDN $20.69/hl to a high of CDN $37.02/hl.
3.66 According to Canada, comparing average total costs of production of individual producers to
CEM returns demonstrates how producers are able to sell CEM at prices that cover their average total
cost of production.81   Indeed, the costs of production of over three-quarters of milk producers (fully
77 per cent), accounting for three-quarters of milk production, fall within the range of CEM returns.
                                                     
77 CEM Producers & Volumes.  (Exhibit CDA-10)
78 CEM Bulletin Board Prices and Volumes (Ranges).  (Exhibit CDA-11)
79 See Explanation of CEM Returns in Exhibit CDA-12.
80 See CEM Returns and Volumes (Ranges) in Exhibit CDA-13.
81 Comparisons of Production Costs and CEM Returns.  (Exhibit CDA-14)WT/DS103/RW2
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The results provide strong support for Canada's position that payments are not being provided by
producers to processors through CEM transactions.
3.67 New Zealand  submitted that the results which Canada achieves with its cost of production
analysis are questionable as it has not included producers whose milk production is less than 60 percent of the annual average in their province (see footnote 72 above).  Thus, Canada still excludes a
significant category of producers whose costs are li kely to be higher.  Furthermore, although Canada
states that "CEM returns range from a low of CDN $20.69/hl to a high of CDN $37.02/hl" (see
paragraph 3.65 above), an analysis of the data provided by Canada shows that only 28 per cent of
CEM milk has been sold for prices greater than CDN $29.90/hl.  By contrast, approximately 60 per
cent of producers have average costs in excess of that figure even using costs of production as defined
by Canada.
82  New Zealand submitted that this gives quite a different impression than that found in
paragraph 3.66 above where Canada states that 77 per cent of producers have average costs less than
the highest CEM price.  By failing to account for the low proportion of CEM sales at prices in excess
of CDN $29.90/hl, Canada's statement is misleading.  If the costs of production were as calculated by
the CDC (which itself is an underestimation of the average total costs of production as detailed
above), Canada's decile approach would show that no Canadian producer has costs of production less
than the average CEM price.83
3.68 Referring to Canada's arguments in paragraphs 3.65 and 3.66 above, the United States
replied that exhibit CDA-14 is misleading and distorti ve since it suggests that the producers with the
higher cost of production are obtaining the higher CEM return.  Yet, there is no evidence to suggest
that the farms in decile 10 of production costs in CDA-9 are obtaining the CEM returns in decile 10 inCDA-13.  The United States was of the view that Canada implicitly recognizes this in footnote 85
above.  In other words, even though CDA-14 insinuates that the high cost producers are matched with
the high CEM returns, Canada acknowledges that its conclusion is really based on the fact that there
must be individual producers represented within the range somewhere that are recovering their total
cost of production in the CEM "market." As expl ained above, however, the Appellate Body's standard
requires a comparison of the "average total cost of production."  Obviously, in crafting this standard,
the Appellate Body realised that some producers would recover their cost of production and some
would not.
                                                     
82 See New Zealand Analysis of Canadian Exhibits CDA-9 and CDA-13 set out in Exhibit NZ-24.
83 Canada does not provide a single figure representing the average cost of production using its methodology.
Nevertheless, from Exhibit CDA-9 it is clear that the average is around CDN $31/hl, some CDN $26/hl less than the CDCfigure set out in para. 3.53 above.  This margin, when applied to each decile in Exhibit CDA-9, indicates that when CDC
costs of production are used no Canadian producer has costs of production less than the average CEM price of around
CDN $29/hl.WT/DS103/RW2
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3.69 Even using Canada's cost of production calculati on (which excludes several of the actual costs
described above),84 the United States continued, Canada's exhibit 14 shows that roughly 60 per cent of
Canadian producers could not cover their costs of production at CDN $30.  Furthermore, a review of
the information presented on CDA-13 shows that approximately 70 per cent of milk sold on the CEM"market" obtains a return of CDN $30 or less.
3.70 There is only a minority of high-cost producers, Canada  replied, whose costs would not be
covered by the prices of CEM.
85  However, as noted by the Appellate Body, the majority of Canadian
dairy farmers choose not to participate in the CEM market.86  Such a situation is likely to continue
unless, and until, individual producers perceive that it is in their economic interests to participate.  As
of December 2001, less than 40 per cent of producers (approximately 8,000) in Canada had
participated in such a transaction and many of these (34 per cent) did so for only a short time.87
Furthermore, as held by the Appellate Body, even if the average total cost of production of an
individual producer who participates in CEM sales happens to be above the prices of CEM, that does
not ipso facto  mean that a payment is provided by that producer.  The Appellate Body held that to the
extent a producer is able to recoup his or her total cost of production in the long-term, there would be
no "payments".88
3.71 As concerns the Complainants' arguments with respect to Canada's presentation of its data on
cost of production, Canada explained that the average cost to produce one hectolitre of milk ranges
from a low of CDN $7.01 to a high of CDN $66.80 while CEM returns, i.e. the price minus the
marketing costs, range from CDN $20.69 to CDN $37.02.  The exhibits and narrative explain the
calculations.  A comparison of the costs and revenues in Exhibit CDA-14 shows that since CEMtransactions commenced in August 2000, the costs of production of over three-quarters of milk
producers fall within the range of CEM returns.
3.72 Canada submitted that the data available for the short period since CEM sales began
(August 2000) do not allow for a realistic consideration of whether producers who may sell CEM at a
price that does not cover their average total cost of production would recover such costs in the long-term.  As with any new market, this first year of operation represents a period of adjustment.
Producers are testing out the market, determining whether to become regular producers of CEM; to
revert to domestic sales only; or to strike some balance between the two.  Whatever they do depends
upon the producer's individual economic situation.  In short, Canada considers that the data provide
no support for the position of the Complainants that CEM transactions are uneconomic in the long run
(see for instance paragraph 3.54 above, and paragraphs 3.78 and 3.132 - 3.133 below).
3.73 Commenting on Canada's arguments in paragraphs 3.70 and 3.72 above, New Zealand
considered those arguments faulty.  Whether transactions are economic in the long-term is not a
matter of trial and error.  It is a matter of simple economics.  Products that are sold at a price that does
not allow the producer to recover all costs of production are going to be uneconomic.  There is no
need to wait to see if this will happen.  By eliminating imputed costs from any cost of production
                                                     
84 Canada also claims that it has resolved the downward bias in the CDC calculation complained of by the
Complainants by including in its calculations the 30 per cent of high-cost producers excluded by the CDC.  However, infootnote 72 above Canada admits that it has not included the producers whose milk production is less than 60 per cent of theannual average in their province, which accounts for 18 per cent, or almost one-fifth, of Canada's total milk pr oduction.
Because small farms tend to have higher costs of production, the exclusion of these producers further understates the true
average total cost of production.
85 The production of producers who can cover their cost of production by commercial export milk sales is more
than enough to account for total commercial export milk pr oduction.  Commercial export milk production accounts for
3.6 per cent of Canada's total milk production.  (Exhibit CDA-10)
86 Appellate Body Report, Canada - Dairy  (Article 21.5 – New Zealand and US), paras. 79 and 117.
87 Frequency of Producers Participating in CEM.  (Exhibit CDA-15)
88 Appellate Body Report, Canada - Dairy  (Article 21.5 – New Zealand and US) , para. 87.WT/DS103/RW2
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determination, Canada is obscuring the issue of whether sales of CEM involve a transfer of economic
resources from producers to processors for export.
3.74 Canada  was of the view that there is nothing misleading about the data.  Indeed, Canada's
presentation of costs and returns was clear enough for both the United States and New Zealand todetermine that about 40 per cent of Canadian producers are able to cover their costs of production
with CEM returns of CDN $29.90, which they claim to be close to the average price of CEM (see also
paragraph 3.70 above).  Indeed, Canada continued, had the Complainants picked the lower end of the
spectrum of returns, they would have found that a substantial number of Canadian producers could
participate in CEM transactions and cover their costs of production.  For example, only 10 per cent of
returns on CEM have been below CDN $25.25; yet the average total production costs of nearly 25 per
cent of Canadian milk producers are below this amount.  Regardless of what average CEM return theComplainants choose as a basis for their argument, the data presented by Canada demonstrates that
producers are clearly able to sell CEM at prices that cover their "average total cost of production."
3.75 Commenting on Canada's arguments in paragraph 3.72 above with respect to "the too short
period since commercial export sales began", the United States  considered that in referring to the
long run, the Appellate Body was describing the types of costs that must be recovered in order toavoid losses.  The point is that if the average total cost of production exceeds the average CEM price,
the producer will incur losses in the long run.  The comparison is accomplished now, not at some
point in the indefinite future.  In order to remain  faithful to the Appellate Body's standard and avoid
comparing apples to oranges, the United States continued, the average total cost of production must be
compared to the average CEM price.  As explained in paragraph 3.53 above, the average CEM pricefor Quebec and Ontario for the dairy year 2000 was approximately CDN $29.
89  For the same time
period, the CDC calculated the average total cost of production as CDN $57.27.  Even with this
understated cost, the average total cost of production exceeded the CEM price by a substantial margin.
Hence, applying the test set forth by the Appell ate Body, "payments" from producers to processors
have occurred under the CEM scheme.
3.76 Canada considered that, if a producer's participation in the CEM market were to be examined
on the basis of the producer's most relevant consideration, whether the transaction covers all of his or
her incremental costs of production for the additional milk required for that transaction (fixed and
variable), one would conclude that an even greater proportion of producers could successfully
participate in the CEM market.  Canada submitted that for the reasons stated above, "payments"
within the meaning of Article 9.1(c) are not being pr ovided by Canadian producers to processors with
respect to CEM transactions.
3.77 With reference to Canada's arguments that it has met the test set forth by the Appellate Body
with respect to producers average total cost of production, New Zealand  replied that Canada's
calculation of the cost of production of milk does not include all of the costs of producing milk.  If
producers sell milk to processors at prices which do not cover the average total cost of producing milk
they are, in effect, making a transfer of economic resources to the processor.  The result is the same asmaking a monetary payment to the processor.  It is a payment-in-kind and hence a "payment" within
the meaning of Article 9.1(c) of the Agreement on Agriculture .  The determination of whether there
has been a transfer of economic resources, New Zealand continued, must be based on a real
measurement of the cost of production, covering both what a producer spends and what he/she must
recover over the long term in order to avoid making losses.
90  If the test for determining the average
total cost of production fails to do this, then it is ineffective in measuring whether economic resources
have been transferred from producer to processor for export.
                                                     
89 Exhibit US-3.
90 Appellate Body Report, Canada - Dairy  (Article 21.5 – New Zealand and US), para. 87.WT/DS103/RW2
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3.78 New Zealand considered that what Canada has shown is that when producers sell milk on the
CEM market, they do not recover an amount that is sufficient to avoid making losses.  They are
foregoing a portion of the "proper value" of milk, thus transferring economic resources to processors
for export.  They are making "payments" within the meaning of Article 9.1(c) of the Agreement on
Agriculture .
3.79 New Zealand submitted in conclusion that Canada has misinterpreted the Appellate Body's
average total cost of production test and constructs instead a cost of production calculation that does
not measure the costs that producers must spend and recover in order to avoid making losses. A
proper application of the test set out by the Appellate Body in Canada - Dairy Article 21.5  shows that
producers make "payments" to processors for export by selling milk at a price that is less than the
average total cost of production.
3.80 Canada  replied that the "payment" issue is not about whether "average total cost of
production" should be calculated on a "cash-basis accounting" or on an "economic costs" basis.  It is
well recognized that there is no standardised method for measuring production costs in the
agricultural sector, in Canada or internationally.  The issue is about interpreting the findings and the
particular words of the Appellate Body in establishing "average total cost of production", adetermination which must be consistent with the A ppellate Body's finding that prices of CEM must be
compared against "some objective standard or benchmark".  The debate is over what costs an
independent milk producer acting by itself without government interference must spend in order to
produce the milk and the total amount it must recover in the long-term, in order to avoid making a
loss.
3.81 The cost methodology employed by Canada in this case is based on fixed and variable costs
representing the amount the producer must spend to produce milk and that he or she must recoup in
the long-term to avoid making a loss.  Canada considered that its use of actual outlays for fixed and
variable costs is consistent with the findings of the Appellate Body.  By contrast, the CDC
methodology is not the right benchmark in these proceedings since it has been developed to servedomestic policy objectives and to that end includes certain imputed amounts that are not actual costs
that the producer must spend to produce milk and recoup to avoid making a loss.  However, Canada is
not challenging the validity of the cost survey data  included in the CDC calculation or the purpose for
which the CDC calculation is used.
(ix) Definition of "export subsidies"
3.82 The Complainants  submitted that in determining the meaning of "export subsidies" under
Article 10.1, it was noted by the panel in Canada - Dairy  that Article 1(e) of the Agreement on
Agriculture  defines export subsidies, unless the context requires otherwise, as "subsidies contingent
upon export performance, including the export subsidies listed in Article 9 of this Agreement"
91, an
approach confirmed by the Appellate Body in US–FSC .
3.83 Canada  noted that the Agreement on Agriculture  does not define the term "subsidy".
However, as the Appellate Body has indicated, the definition of "subsidy" in Article 1.1 of theSCM Agreement provides important contextual guidance in defining an "export subsidy" under
Article 1(e) of the Agreement on Agriculture.
92  The definition of "subsidy" under the
SCM Agreement  consists of two discrete elements:  (i) a "financial contribution" or "income or price
                                                     
91 Panel Report, Canada – Dairy , DSR 1999:VI, 2097, para. 7.124. This approach has been confirmed by the
Appellate Body in US–FSC , paras. 190-196.
92 Appellate Body Report, US–FSC , para. 136.WT/DS103/RW2
WT/DS113/RW2
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support" by a government; (ii) which confers a benefit.93  Canada considered that the claims above
ignore the very basis of this dispute.  The report of the Appellate Body in the original proceedings
found that government was indispensable to enable the supply of milk for export purposes since
government agencies stood completely between producers of the milk and the processors orexporters.
94  In response to this finding, Canada has removed those governmental agencies and
permitted producers and processors to enter into export transactions free of governmental control.
Canada has thus deregulated the CEM market, meaning that the government has no hand in setting the
time, amount, or price of export sales.  The only design in Canada's implementation of CEM is to
remove government influence from the export business.
3.84 Canada submitted that as "integral parts"95 of a "single undertaking"96, sharing numerous
cross linkages97 the two Agreements should, to the extent permitted by the wording, be interpreted
consistently.  Extremely helpful in this regard are the insights into Article 9.1(c) provided by the
government "financial contribution" concept, which, as suggested by the Appellate Body in Canada -
Aircraft98 and by the panel in US - Export Restraints99, is, according to Canada, a cornerstone to the
meaning of a "subsidy" in the SCM Agreement.  In particular, US - Export Restraints  holds that
government entrusting or directing a private body to carry out certain functions contains the notions ofgovernment delegation  or command .
100
3.85 US - Export Restraints  expressly rejects the proposition that the focus should be on the effects
or results  of government action, Canada continued, suggesting instead that the focus should be on the
nature  of that action:  "the existence of a financial contribution by a government must be proven by
reference to the action of the government".101  In the words of the panel in US - Export Restraints :
"we do not see how the reaction of private entities to a given governmental measure can be the basis
on which the Member's compliance with its treaty obligations under the WTO is established."  This
finding is fully consistent with the Appellate Body's statement in this case that governmental action
that merely enables a private person to make and finance a payment is too tenuous a linkage to
support a finding of an export subsidy under Article 9.1(c).  Thus, the perceived effects of governmentaction on private behaviour or, to put it another way, on the presumed reaction of private entities to
governmental intervention in the domestic market cannot be the basis for assessing WTO consistency.
Canada submitted that the test proposed by the Complainants is substantially broader than the test
applied under the subsidy definition in the SCM Agreement  and attempts to impose a construction on
the language of Article 9.1(c) it cannot reasonably bear.
3.86 New Zealand  replied that Canada seeks to limit the scope of the definition of export subsidy
in the Agreement on Agriculture  by the words used in the SCM Agreement .  Canada's arguments
ignore the language of Article 9.1(c) and seek to undermine the ordinary meaning of the provision by
asking the Panel to refer to unrelated provisions (and language) in the SCM Agreement .  In so doing,
Canada refers to jurisprudence which has taken note of the linkages between, and shared heritage of,
                                                     
93 Panel Report, US - Export Restraints , para. 8.20;  Panel Report, Canada – Export Credits , para. 7.64;  and
Appellate Body Report, Brazil –Aircraft , DSR 1999:III, 1161, para. 157.
94 Appellate Body Report, Canada - Dairy  (Article 21.5 – New Zealand and US) , para. 120.
95 Marrakesh Agreement Establishing the World Trade Organization, Article II.2.
96 Appellate Body Report, Brazil – Desiccated Coconut , DSR 1997:I, 167, at 177.
97 For example, both the SCM Agreement  and the Agreement on Agriculture  share a common core definition that
refers to "subsidies contingent … upon export performance."  See US–FSC , para. 121.
98 Appellate Body Report, Canada –Aircraft , DSR 1999:III, 1377, para. 156.
99 Panel Report, US–Export Restraints , para. 8.20.
100 Ibid., para. 8.29.
101 Ibid., para. 8.34.WT/DS103/RW2
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Page 26
the Agreement on Agriculture  and the SCM Agreement ,102 but then, in the opinion of New Zealand,
over-states that linkage and heritage.
3.87 Canada  retorted that the term "subsidy" is used by New Zealand throughout its argument on
"financed by virtue of governmental action", which is the core term of the very same SCM Agreement .
Canada's case is focused on the words of Article 9.1(c) as interpreted by the Appellate Body.  The
SCM Agreement  is part of the context that must be taken into account in interpreting those words.
There is support for this argument in the preamble of Article 9.1(c), which provides that "[t]he
following export subsidies are subject to reduc tion commitments under this Agreement" and in the
finding of the Appellate Body in US–FSC  and the original Appellate Body finding in this case.
3.88 The Complainants  replied that US - Export Restraints  was brought under
Article 1.1(a)(1)(iv) of the SCM Agreement, not the Agreement on Agriculture , and therefore the
report in that dispute provides no support for Canada's position.  As concerns the concept of "financial
contribution", the SCM Agreement  has no relevance to Article 9.1(c) of the Agreement on Agriculture ,
which is concerned with "payments" and not with a "financial contribution".  Moreover,
Article 1.1(a)(1)(iv) of the SCM Agreement  links the concept of "financial contribution" to an
"entrustment" or "direction" by government.103  The words "entrust" and "direct" are nowhere to be
found in Article 9.1(c) of the Agreement on Agriculture  and therefore offer no contextual guidance to
its interpretation.
2. "financed by virtue of governmental action"
3.89 The Complainants, referring to the second element of Article 9.1(c) of the Agreement on
Agriculture,  noted that in Canada - Dairy  the Appellate Body stated that "payments" were to be
regarded as "financed by virtue of governmental action" if "governmental action" was "indispensable"
to the transfer of economic resources.104  In Canada - Dairy Article 21.5 , the panel took the view that
governmental action would be indispensable to the provision of lower-priced milk to processors for
export if governmental action, de jure  or de facto  prevents Canadian milk producers from selling
more milk on the regulated domestic market, at a higher price, than to the extent of the quota allocatedto them; and obliges Canadian milk processors to export all milk contracted as lower priced CEM,
and, accordingly, penalises the diversion by processors of milk contracted as CEM to the domestic
market.
105
3.90 The panel considered that these two conditi ons were met, stating that "the payment is
"financed by virtue of governmental action" in that lower priced CEM would not be available to
Canadian processors but for  the above federal and provincial actions (i) restricting supply on the
domestic milk market, obliging producers, at least de facto , to sell outside-quota milk for export, and
(ii) obliging processors to export all milk contracted as CEM, and penalising diversion by processors
of CEM into the domestic market." 106
3.91 The United States  added that in its recent report in this dispute, the Appellate Body
concluded that, because it could not complete the analysis of the "payment" prong of Article 9.1(c)
due to the lack of data on costs of production, it need not decide whether the panel was correct that thealleged payments had been "financed by virtue of government action."  Thus the Appellate Body
neither reversed nor affirmed the panel's conclusion on this point.
                                                     
102 See, for example, Appellate Body Report, Brazil - Desiccated Coconut , DSR 1997:I, 167, at 169-170;  and
Appellate Body Report, US–FSC , para. 136.
103 Panel Report, US–Export Restraints , paras. 8.26-8.44.
104 Appellate Body Report, Canada - Dairy  (Article 21.5 – New Zealand and US), para. 120.
105 Panel Report, Canada - Dairy  (Article 21.5 – New Zealand and US) , para. 6.42.
106 Ibid., para. 6.77. Emphasis in original.WT/DS103/RW2
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3.92 The Complainants  noted that the Appellate Body in Canada - Dairy Article 21.5 analysed
the meaning of the phrase "financed by virtue of  governmental action" and observed that "Mere
governmental action" is not enough.  "The words "by virtue of" indicate that there must be a
demonstrable link between the governmental action  at issue and the financing  of the payments".107
The payments have to be financed in some way "as a consequence of the governmental action."108
Although the Appellate Body recognised  the difficulty of defining in the abstract the precise link that
is necessary between governmental action and the financing of payments, the Complainants
continued, it noted that governmental action which establishes a regulatory framework "merely
enabling a third person freely to make and finance 'payments'" is insufficient.109  However, the
Appellate Body recognized that "the existence of such a demonstrable link must be identified on a
case-by-case basis, taking account of the particular governmental action at issue and its effects on
'payments' made by a third person."110
3.93 The Complainants recalled the Appellate Body's acknowledgement that, taken as a whole, the
panel's reasoning was "directed towards establishing the demonstrable link between governmental
action and the financing of the payments."111   However, the Appellate Body said, "even though
Canadian governmental action prevents further domestic sales, we do not see how producers areobliged or driven to produce additional milk for export sale.  As we have said above, each producer is
free to decide whether or not to produce additional milk for sale as CEM."
112  Thus, the Appellate
Body disagreed with the panel's characterisation of the CEM measures as, "obliging producers, at
least de facto , to sell outside-quota milk for export."113
3.94 In the present case, the Complainants continued, the "payment" is financed by the producer
accepting a price for export milk that does not cover the "average total cost of production" of milk
(i.e., a payment-in-kind).  These payments have to be "financed by virtue of governmental action" for
the requirements of Article 9.1(c) of the Agreement on Agriculture  to be fully met.  The term
"financed" as it appears in Article 9.1(c) covers both "the financing of monetary payments and
payments-in-kind."114  The question, then, is whether this financing by producers of "payments" to
processors can, in the words of the Appellate Body, be demonstrably linked to, or seen to be a
consequence of, governmental action.115  There has to be, as the Appellate Body said, a "tighter nexus
between the mechanism or process by which the payments are financed, even if by a third person, and
governmental action."116
3.95 Canada  submitted that the Appellate Body held that "the link between governmental action
and the financing of payments will be more difficul t to establish, as an evidentiary matter, when the
payment is in the form of a payment-in-kind rather  than in monetary form, and all the more so when
the payment-in-kind is made, not by the government, but by an independent economic operator."117
Thus, Canada continued, in this case, which involves an alleged payment-in-kind made not by agovernment but by independent operators, the Appellate Body standard would require a particularly
clear and convincing showing of the required linkage.  Canada considered that the facts of this case do
not permit such a finding.  The Appellate Body also held that "[i]t is extremely difficult … to definein the abstract the precise character of the re quired link between the governmental action and the
                                                     
107 Appellate Body Report, Canada - Dairy  (Article 21.5 – New Zealand and US),  para.  113. Emphasis in original.
108 Ibid.
109 Ibid., para. 115.
110 Ibid., para. 115.
111 Ibid., para. 116.
112 Ibid., para. 117.
113 Ibid.
114 Ibid.,  para. 114.
115 Ibid., para. 113.
116 Ibid.
117 Ibid.WT/DS103/RW2
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financing of the payments, particularly where payments-in-kind are at issue."118  However, that is
what the Complainants are asking the Panel to do.
3.96 The governmental action by virtue of which payments are financed in the present case, the
Complainants  submitted, is the very construction of the CEM scheme itself.  This has two
components; (i) a prohibition on producers selling non-quota milk into the domestic market, with
appropriate sanctions to support this prohibition, and (ii) the exemption of processors for export from
the requirement to purchase only from milk supplied under Classes 1 to 5(d).119 In Canada - Dairy
Article 21.5 , the Appellate Body distinguished between "a regulatory framework simply enabling a
third person freely to make and finance" those "payments"120 and circumstances where there was a
demonstrable link between the financing of "payments" and governmental action.121
3.97 Referring to the arguments with respect to the measures described in paragraph 3.96 above,
Canada  responded that it does not deny that the governmental actions referred to by the
Complainants establish a framework under which processors have access to milk for export without
those processors having to pay the administered price.  As Canada has repeatedly explained, and the
Appellate Body has accepted, processors and producers freely negotiate the prices of CEM.  However,
even if a sale of CEM by a producer to a processor at less than the administered domestic price or"average total cost of production" calculated by the CDC were to constitute a "payment", which
Canada denies, that "payment" would not be "financed by virtue of governmental action" by the mere
fact that it has occurred.  As already stated, the Appellate Body rejected this as being sufficient to
meet the "financing" element of Article 9.1(c), because such a conclusion would not give meaning to
the word "finance".
3.98 With respect to the arguments concerning "the very construction of the CEM scheme",
Canada considered that this fails to consider the Appellate Body statement that "[g]overnments are
constantly engaged in regulation of different kinds in pursuit of a variety of objectives."
122  I n
particular, the Appellate Body envisaged that "governmental action might establish a regulatory
framework merely enabling a third person freely to make and finance "payments".  In this situation,the link between the governmental action and the fi nancing of the payments is too tenuous for the
"payments" to be regarded as " financed  by virtue of governmental action" (emphasis added) within
the meaning of Article 9.1(c).  Rather, there must be a tighter nexus between the mechanism or
process by which the payments are financed , even if by a third person, and governmental action."
123
3.99 Canada submitted further that the Complainants' arguments in paragraph 3.96 above with
respect in particular to the "two components" ar e without merit.  Even though these governmental
actions may exist, it does not mean they "finance" any "payments".  The fact that processors do nothave to pay the higher regulated price is not proof that "payments" to processors are "financed by
virtue of governmental action".  On the contrary, Canada explained, the measures identified by the
Complainants as the governmental action that finances "payments" protect a producer's entitlement to
the higher domestic price.  They have no relation or "link" to any alleged sale by a producer of milk to
a processor at below his or her cost of production.  These "measures" also include restrictions on salesinto the domestic market.  It is these measures taken in combination which protect a producer's
entitlement to the higher domestic price (supply management).
                                                     
118 Appellate Body Report, Canada - Dairy  (Article 21.5 – New Zealand and US),  para. 115.
119 Like the CEM Scheme, Class 5(d) provides discounted milk to processors for export, but unlike CEM,
Class 5(d) is recognised by Canada as providing export subsidies.
120 Appellate Body Report, Canada - Dairy  (Article 21.5 – New Zealand and US) , para. 115.
121 Panel Report, Canada - Dairy  (Article 21.5 – New Zealand and US), , paras. 6.50-6.54.
122 Appellate Body Report, Canada - Dairy  (Article 21.5 – New Zealand and US) , para. 115.
123 Ibid.WT/DS103/RW2
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3.100  The Complainants  submitted that even if the producers are freely choosing to produce non-
quota milk, as the Appellate Body observed, once they do so, governmental action prohibits them
from selling this milk onto the higher priced domestic market, i.e. they have no choice but to sell it in
the export market.  If the producer were making the decision, the choice would obviously be to sell inthe higher-priced domestic market and recover its fixed and variable costs.  From the producer's
perspective, the governmental action is the prohibition against the selling of non-quota milk into the
higher-priced domestic market.  The  Complainants  were of the view that it is easy to see the
"demonstrable link" between the government's prohibition on selling milk in the domestic market
without quota and the "payment" made by the producer's sale of non-quota milk in the CEM market.
It is also easy to see that the financing of the "payments" made by producers to processors – the
selling of milk at a price that is less than the average total cost of production – is "a consequenceof"
124 governmental action, and that the governmental action is "indispensable" to the financing of the
"payments".125  Producers are not forced to produce extra milk.  But when they do, they have no
option but to sell in the CEM market and thereby make a "payment" to processors.126
3.101  Referring to Canada's arguments in paragraph 3.99 above, the United States  submitted that
Canada does not explain how exempting export milk from the high domestic price protects aproducer's entitlement to that high price.  The United States reiterated that Canada could manage and
control its domestic supply of milk without exempting export milk from the high price.  It may mean
that Canada's dairy processors would no longer be able to export because they cannot compete
without subsidization, but the right to maintain and subsidize domestic production does not also
provide a right to subsidize export production beyond the applicable reduction commitments.
3.102  Since the arguments made by the Complainants are the same arguments as those they made
before the first Article 21.5 panel and Appellate Body, Canada  considered that the language used by
the Appellate Body in addressing the "financed" element of Article 9.1(c) is therefore of the utmost
relevance.  A careful review and a proper application of this language, provides, according to Canada,
a strong indication that the Appellate Body considered the arguments of the Complainants and did notfind them convincing.  It is not unreasonable to argue that the Appellate Body contemplated and
rejected anticipated arguments by the Complainants.  Indeed, the Appellate Body appeared to suggest
that unless the Complainants can come up with someth ing better than a simple assertion that "access
equals financing", their claims should be rejected.
3.103  Canada further submitted that the Appellate Body standard with respect to a "demonstrable
link" requires a particularly clear and convincing showing of the required linkage.  The facts of this
case do not permit such a finding.  For a "demonstrable link" to exist between governmental actionand the financing of payments, the former must be focused or directed towards the latter.  There must
be a clear and evident connection between the two.  Government obliging or directing producers to
produce and sell CEM would be but one example of such a link.  Other examples are found under
Canada's Special Class system.  The Panel is well aware that under the former Class 5(e), Canada
controlled the volume of milk for export, set the price, pooled producer revenues, paid the producers,and issued permits to processors.  Canada exercised similar controls under the earlier producer-levy
system.
3.104  By removing governmental action at every stage of the export transaction, which Canada did
based on the decision of the Appellate Body in the original dispute, such transactions, when they
occur, are not "financed by virtue of governmental action".  When individual producers and
                                                     
124 Appellate Body Report, Canada - Dairy  (Article 21.5 – New Zealand and US , para. 113.
125 Panel Report, Canada - Dairy  (Article 21.5 – New Zealand and US ), para . 6.41.
126 The only other permitted avenue for disposal of over-quota  milk (other than destruction) is for use in animal
feed under Class 4(m) – a use which obtains substantially lower prices than the export market.WT/DS103/RW2
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Page 30
processors, not government, decide to produce, purchase and sell milk for export and determine the
price, volume and timing of the transactions, Canada considered that there is a complete absence of
governmental action on which the "demonstrable link" of which the Appellate Body spoke can be
established.  In contrast to the former Special Class 5(e) and the levy example in Article 9.1(c), themeasures identified by the Complainants are not fo cused or directed towards the financing of export
transactions.
3.105  The Complainants  considered that focusing on the producer, shows only part of the picture.
It is the processor for export who receives the "pay ment" and thus can export.  For the processor, the
link between access to lower-priced milk and governmental action is clearly "demonstrable".  If there
were no prohibition on the sale of non-quota milk into the domestic market, producers would not
make low-priced sales of milk to processors for export.  Processors would have to access their milkfrom that domestic market at the higher prices that pertain there.  It is governmental action that makes
it possible for processors to receive these "payments" from producers.  Furthermore, the
"governmental action" by virtue of which "payments" are financed goes beyond the prohibition on the
sale of non-quota milk into the domestic market.  Without the governmental exemption of processors
from purchasing milk at the higher regulated prices for export purposes there would be no CEMmarket and this exemption which is made explicit in provincial marketing regulations
127
(i.e. governmental action) is available only to processors for products that are exported.
3.106  The Complainants noted that milk qualifying as "CEM" is exempt from most domestic
regulations, including the domestic price regulations that cover milk for the domestic market.
Without this exemption, the CEM scheme could not function as prices for processors then would betoo expensive and therefore un-competitive on world markets, i.e., milk is available in the CEM
market only because the economically rational choice of selling it at above the "average total cost of
production" has been denied by governmental action.  In other words, the Complainants continued,
producers are selling in the export market, not because there is no demand in the higher-priced
domestic market and the producers are therefore making a commercial choice to sell in the lower-priced export market, but because they cannot sell non-quota milk in the domestic market due to the
government prohibition.  As a result, the producer is foregoing revenue not based upon "commercial"
reasons but as a direct consequence of governmental action.  This situation described and relied upon
by the panel has not changed under the substituted provincial export programmes.
3.107  The Complainants submitted that even if Canada considers the prohibition of non-quota milk
in the domestic market as necessary to maintaining the integrity of its supply management system, it
does not mean that the CEM scheme is a logical consequence or necessary feature of a supplymanagement system.  Other countries operate dair y supply management systems without this feature.
The Complainants referred in particular to the sy stem maintained by the European Communities.  The
Complainants considered that the government-created CEM scheme is not an unintended consequence
of Canada's domestic supply management system.  Nor is it a "spill-over" benefit of that system (see
also paragraph 3.115 below).  It represents a deliberate choice of the Canadian government to makelower-priced milk available for processors for expo rt.  Without the exemption from the cost of the
higher-priced domestic milk, Canadian processors could not compete on the world markets for dairy
products.
3.108  Canada,  referring to paragraph 113 of the Appellate Body report in Canada - Dairy
Article 21.5  with respect to "a demonstrable link", submitte d that contrary to what is suggested by the
Complainants, any alleged "payments" made by an independent private party would not be "financed
by virtue of governmental action" by the mere fact that the government, somehow, regulates some
                                                     
127 Exhibits NZ-9 to NZ-17.  Examples of the relevant provincial exemptions are set out in footnote 22.  See also
Exhibit US-26.WT/DS103/RW2
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aspects of the industry within which that private party operates.  Export transactions occurring outside
of Special Class 5(d) take place without government interference or control of any kind, and as such,
do not benefit from export subsidies.  The facts of this dispute establish without question that even if
"payments" were made by certain independent producers, which Canada denies, any such paymentswould not be financed as a consequence of any go vernmental action.  Accordingly, Canada has fully
implemented the recommendations and rulings of the Dispute Settlement Body (DSB), reflecting the
findings and conclusions of the original panel, as modified by the Appellate Body in Canada–
Dairy .
128
3.109  Canada submitted that the Appellate Body contemplated and rejected the position of the
Complainants.  Accordingly, even if it can be said  that a "CEM scheme" exists, such a "scheme" is
one into which producers and processors voluntarily decide to enter without government compulsion,direction, or control.  The mere fact that such a "scheme" exists would not be sufficient to establish a
clear and convincing linkage to the financing of any "payments".
3.110  The Complainants  responded with respect to Canada's arguments in paragraph 3.98 (tighter
nexus) and 3.108 (demonstrable link) above that Canada seeks to read into the Appellate Body's
report words which are not there and to mis-characterise the position taken by the Complainants.They do not argue, as Canada alleges (see paragraph 3.108 above), that payments made by an
independent party would be financed by virtue of  governmental action "by the mere fact that the
government, somehow, regulates some aspects of the industry within which that private party
operates."  Similarly, Canada mis-characterises the Appellate Body's findings as the Appellate Body
made no findings with respect to the question of "financed by virtue of governmental action" andcould therefore not have "contemplated and rejected" the position of the Complainants, as Canada
claims (see paragraphs 3.102 and 3.109 above).  Furthermore, although the Appellate Body disagreed
with the panel's characterisation of the CEM scheme as "obliging producers, at least de facto , to sell
outside-quota milk for export", it also noted that "the Panel's reasoning, taken as a whole, was directed
towards establishing the demonstrable link between governmental action and the financing of thepayments".
129 (See also paragraph 3.93 above.)
3.111  Contrary to assertions made by the Complainants, Canada argued, producers do not take
surplus production or "non-quota milk" and sell it as CEM.  Rather, producers pre-plan and pre-
commit their milk production, including the production of CEM.  Governments are not involved in
this independent decision-making process.  Pre-commitment and first milk out of the tank do not
provide processors with a predictable supply of milk.  These practices merely provide the framework
under which processors can enter into enforceable private contracts with individual producers for milksupplies.
3.112  Canada, noting the Appellate Body's reversal of the panel's finding with respect to "driven or
obliged"
130 and further noting that the Appellate Body did not directly address the second measure
identified by the panel as governmental action that finances payments (i.e., the sanction for diversion
of export milk into the domestic market), submitted that the reasoning of the Appellate Body mustalso apply in rejecting the panel's finding regarding the effects of this measure.  There is no link
between this measure and the financing of any alleged payments.  A penalty provision on  processors
for diversion of dairy products manufactured with CEM after production does not, in any way, oblige
or drive producers  to produce and sell this milk.  It does not alter the basic conclusion reached by the
                                                     
128 Appellate Body Report, Canada - Dairy  (Article 21.5 – New Zealand and US) , and Panel Report Canada -
Dairy  (Article 21.5 – New Zealand and US).
129 Appellate Body Report, Canada - Dairy  (Article 21.5 – New Zealand and US) , para. 116.  In footnote 90 of its
report, the Appellate Body outlined in detail the approach take n by the panel in establishing the demonstrable link between
the governmental action and the financing of the payments.
130 Ibid., para. 117.WT/DS103/RW2
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Appellate Body that each producer is free to decide  whether or not to produce additional milk for sale
as CEM.
3.113  Without a government "mechanism or process" that either makes unprofitable sales on behalf
of producers or obliges or drives them to do so, Canada considered that there is an absence ofevidence based on which to find the demonstrable link.  For Article 9.1(c) to apply, there must be
governmental action focused or directed towards the financing of the alleged "payments" (e.g., setting
prices, controlling volume, managing producer returns, as under Special Class or producer levy
systems).  A regulatory framework that merely enables a third person freely to make and finance
"payments" is, according to Canada, insufficient to  engage Article 9.1(c).  Accordingly, any alleged
"payments" that may be made by independent producers are not, "financed by virtue of governmental
action".
3.114  Replying to the arguments by Canada above, the Complainants considered that they clearly
identify, in paragraph 3.94 above, the elements of governmental action by virtue of which payments
are financed in the present case.  They considered that the governmental action that finances the
payments in this case is manifest.  The Complainants noted that in addressing the issue of "financed
by virtue of governmental action", Canada focuses on the producer, ignoring the fact that the recipientof the subsidy is the processor, i.e. the focus in this case must be on the dairy processor .  Thus, the
question is whether the processor for export receives a subsidy which is financed by virtue of
governmental action, a question the Complainants believed should be answered in the affirmative.
3.115  The Complainants reiterated  that it is the enforced segregation of the market that permits
exporters to purchase milk for export at discounted prices.  By exempting milk for export from thehigh domestic administered price, Canada has created a separate pool of milk that would not
otherwise exist and which is available exclusively for dairy processors for export.  It is the
government exemption of export milk from the high domestic price which finances the payment to
processors.  This is not a case where there are "spill-over benefits" from the domestic supply
management system, as mentioned earlier (see paragraph 3.107 above).  Canada has made thedeliberate choice to exempt export milk from the higher domestic price so that its processors can
compete in the world market.  This exemption is not necessary to maintain the Canadian domestic
supply system, a fact that Canada itself has recognised.
131  Rather, the government has chosen to
subsidize its processors in this way in order to help them increase their exports.  Without this
government exemption, there would be no low-priced milk for export.  It constitutes government
action which is indispensable to the transfer of resources from the producers to the processors.
3.116  Referring to the Complainants arguments in paragraph 3.115 above with respect to the focus
on the processor confuses, according to Canada ,  the concept of "financed by virtue of governmental
action" with the concept of "benefit".  The issue is whether the alleged "payments" by independent
producers are "financed by virtue of governmental action".  This determination is made by
considering the relationship between the governmental actions identified by the Complainants and the
"financing" of the alleged "payments".  As concerns the exemption from the high domesticadministered price, Canada replied that it does not dispute that, as a consequence of these deregulation
measures, processors are not required to pay the administered domestic price for commercial export
milk.  This can be characterized as an "exemption".  An "exemption" from the requirement to pay the
administered domestic price is not necessary to the protection of entitlement to the domestic
administered price.  However, the fact that processors have access to milk for export without payingthe administered domestic price and, thereby, having no limits on their ability to export, is not per se
WTO inconsistent.  There is no obligation under the Agreement on Agriculture  to limit exports.  The
obligation rather is to limit exports that benefit from export subsidies.  Not having to pay the
                                                     
131 Canada's Response to Question No. 14.WT/DS103/RW2
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administered domestic price does not ensure processors access to milk for export at any particular
price.  Prices are whatever processors and producers agree they will be.  Canada was of the view that
the fact that processors have access to milk without paying the administered domestic price does not
amount to governmental action by virtue of whic h payments are financed within the meaning of
Article 9.1(c).  There is no tight nexus or "demonstr able link" between this governmental action and
the financing of any alleged "payments".
3.117  The United States , referring to the Appellate Body's observation concerning the
"demonstrable link" test as set out in paragraph 3.92 above132, and to what it considered as Canada's
misinterpretation of that report (see paragraph 3 .113 above), submitted that if the fact that producers
are not obliged to sell into the export market were determinative of the second prong of Article 9.1(c),
the Appellate Body would have found that the seco nd prong was not satisfied as it would not have
needed additional facts to complete that analysis.  Referring to paragraph 116 of the Appellate Body's
report in Canada - Dairy Article 21.5, the United States noted that it did not so find.  The
United States considered that the fact that producer s are not obliged to sell into the export market is
irrelevant.  There is no basis in the text of Article 9.1(c) for the conclusion that the governmental
action prong requires that the government force producers to participate in the subsidy programme, oreven that the governmental action be "focused or directed towards the financing of the alleged
payments," as claimed by Canada (see paragraph 3.113 above).  The point is that once farmers do
produce over-quota milk, they are compelled by government action to transfer economic resources to
the processors.
3.118  New Zealand  submitted with reference to Canada's position (shared by the European
Communities
133) regarding the "demonstrable link", that th ere is nothing in the WTO disciplines on
export subsidies to suggest that government compulsion to participate in a subsidy scheme is a
necessary precondition to the establishment of an export subsidy.  As the Appellate Body pointed out,
"each producer is free to decide whether or not to produce additional milk for sale as CEM", and they
are not "obliged or driven" to produce such milk.134  The decision to participate in a subsidy
programme will depend on a number of factors.  For example, the cross-subsidization resulting from
sales at the higher administered domestic price135 may make it "rational" for a producer to produce
CEM milk.  The motivations of producers may, as the Appellate Body pointed out, be relevant to
determining the existence of a "payment"136, but they are not relevant to the determination of whether
payments have been financed by virtue of governmental action.
3.119  To meet the requirements of Article 9.1(c) there must be, as the Appellate Body has said, a
"demonstrable link" between the receipt of that su bsidy by the processor and the governmental action
in question which has to show that the governmental action is indispensable to the receipt of the
subsidy.  Producers choose whether to produce CEM milk.  What is relevant is that the CEM scheme,
established and maintained by governmental action, provides processors for export with access to
milk at prices below the average total cost of production.
3.120  The Appellate Body137 made clear, New Zealand continued, that where governmental action
merely establishes a regulatory framework that enables a third person freely to make and finance
"payments", this does not constitute the necessary  "demonstrable link".  The CEM scheme, however,
is constructed so that processors for export are exempted from the requirement to pay the higher
                                                     
132 See also Appellate Body Report, Canada - Dairy  (Article 21.5 – New Zealand and US), para. 115.
133 Paras. 4.36 and 4.37 below.
134 Appellate Body Report, Canada - Dairy  (Article 21.5 – New Zealand and US), para. 117.
135 This possibility was noted by the Appellate Body at para. 94 of Canada - Dairy  (Article 21.5 – New Zealand
and US).
136 Appellate Body Report, Canada - Dairy  (Article 21.5 – New Zealand and US),  para. 92.
137 Ibid., para. 115.WT/DS103/RW2
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domestic administered price that is applicable to all other milk.  As a result, any producer entering
into a sale and purchase transaction with a processor necessarily makes a "payment" to the processor.
A payment is financed as a matter of course whenever a producer sells milk on to the CEM market.
3.121  New Zealand considered that it is irrelevant that producers decide whether or not to enter the
CEM market.  Under SMC, producers had the same choice as to whether or not to produce over-quota
milk.138  Furthermore, Canada has not addressed the elements of governmental action that the
Complainants have identified.  Since the burden of proof in this case rests with Canada, it has not
discharged that burden.  Indeed, on the key question of whether governmental measures underpin the
operation of the CEM scheme, Canada appears to concede the point.  Canada explains the measures
that the Complainants identify as the governmental  action which finances the payments in this case as
measures that "protect a producer's entitlement to the higher domestic price"(see paragraph 3.99above).  If this is true, then it is also true that the same governmental action ensures that processors for
export remain shielded from these higher domestic prices, ensuring that Canadian milk products are
able to compete on the lower-priced world markets.
3.122  The United States  reiterated that whether or not producers are freely choosing to produce
milk for export
139, producers are not freely choosing to finance the payment.  The government has
made this choice by ensuring that the sale of that milk from the producer to the processor includes a
transfer of economic resources to the processors.  The transfer is guaranteed by the exemption from
the higher administered price for domestic milk which the United States considered has nothing to do
with maintaining the domestic supply system.  In Canada's terms, it is governmental action "focused
and directed"(paragraph 3.113 above) to the financing of payments to processors.  The "demonstrablelink" between the government action and the financ ing of the payment is, according to the United
States, crystal clear.
3.123  New Zealand  added that Canada's attempt to import the idea that governmental action must
be "directed" towards the financing of a payment in order to show a "demonstrable link" (see
paragraph 3.113 above) is unsubstantiated and un-co mpelling.  New Zealand was of the opinion that
what Canada is really trying to do is have the Panel distance itself from the language of Article 9.1(c)
of the Agreement on Agriculture .  This would not only turn the interpretative rules of the Vienna
Convention  on their head, but would render Article 9.1(c) meaningless.
3.124  New Zealand considered that Canada's proposed test for determining whether "payments"
have been "financed by virtue of governmental action" is inconsistent with the Appellate Body's
requirement that there be a demonstrable link between the payment and the governmental action.  As
has been shown, the demonstrable link resulting from the governmental action in respect of bothproducers and processors for export is clear.  The action of government is indispensable to the transfer
of economic resources from producers to processors for export.
3.125  The United States was of the view that  Canada's arguments mis-characterize the United
States position and misstate the Appellate Body report.  It has been demonstrated that Canada has
failed to meet its burden of showing that the "payments" are not financed by virtue of governmentalaction.  The evidence is quite clear that only th rough the exercise of governmental powers do
processors receive "payments" when they purchase milk for export production.  There is
unquestionably a demonstrable link between governmental action and the financing of the payment.
                                                     
138 See, for example, Panel Report, Canada - Dairy,  DSR 1999:VI, 2097, paras. 2.39-2.58.
139 See para. 117 of the Appellate Body Report, Canada - Dairy  (Article 21.5 – New Zealand and US), and for
example para. 12 of the United States second submission to the panel in the pro ceedings on the first recourse by the
United States to Article 21.5 of the DSU.WT/DS103/RW2
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3.126   New Zealand submitted that from the perspective of export subsidies, Canada's deregulation
involves replacing one form of regulation with another form of regulation. While it is a fact that
export subsidies on agricultural products are yet to be eliminated, this provides no justification for
Canada's claim that the definition of subsidies under the Agreement on Agriculture  is somehow
narrower than the one that applies under the SCM Agreement .140  The definition in Article 9.1(c) of the
Agreement on Agriculture  must be applied in accordance with its terms.
C. ARTICLE 10.1 OF THE AGREEMENT ON AGRICULTURE .
3.127  The Complainants  submitted that even if Canada's CEM scheme would be found not to
satisfy the requirements of Article 9.1(c),  it  would nevertheless violate Article 10.1 of the Agreement
on Agriculture  by providing export subsidies that circumvent (or threaten to circumvent) Canada's
export subsidy commitments.
3.128  New Zealand  referred to Canada - Dairy , in which case the panel said that the application of
the first part of this provision requires two elements to be established.  First, there must be "export
subsidies not listed in paragraph 1 of Article 9".  And second, those export subsidies must be "applied
in a manner which results in, or which threatens to lead to, circumvention of export subsidy
commitments."141  Alternatively, if it can be shown that  "non-commercial transactions" have been
used to circumvent export subsidy commitments, this too will constitute a violation of Article 10.1.
The United States  added that in US - FSC , the Appellate Body stated that the obligations under
Article 10.1 come into play when three factors are present: the two factors mentioned above plus that
the subsidy is contingent on export.142
3.129  The Complainants  reiterated that in determining the meaning of "export subsidies" under
Article 10.1, it was noted by the panel in Canada - Dairy  that Article 1(e) of the Agreement on
Agriculture  defines export subsidies, unless the context requires otherwise, as "subsidies contingent
upon export performance, including the export subsidies listed in Article 9 of this Agreement"143, an
approach confirmed by the Appellate Body in US - FSC .144  Referring to the panel report in Canada -
Dairy145, the Complainants submitted that since Article 10 applies to export subsidies other than those
listed in Article 9, it therefore applies to any subsidy contingent upon export performance that is not
included in the export subsidies listed in Article 9.1.
3.130  Canada  noted that the Parties agree that the SCM Agreement  provides the appropriate context
for identifying any export subsidy under Article 10.1.
(i) Illustrative List of Export Subsidies
3.131  The Complainants  considered that specific guidance can be obtained from the practices
considered in the SCM Agreement  to be export subsidies, focusing in particular on paragraph (d) of
the Illustrative List of Export Subsidies in Annex I to the SCM Agreement .146  Paragraph (d)
specifically addresses the situation where a government provides inputs, indirectly through a
government-mandated scheme, to exporters "on terms or conditions more favourable than for
                                                     
140 See para. 117 of the Appellate Body Report, Canada - Dairy  (Article 21.5 – New Zealand and US), and for
example para. 12 of the United States second submission to the panel in the pro ceedings on the first recourse by the United
States to Article 21.5 of the DSU.
141 Panel Report, Canada - Dairy (Article 21.5 – New Zealand and US) , para. 7.120.
142 Appellate Body Report,  US - FSC,  paras. 135-154.
143 Panel Report, Canada - Dairy,  DSR 1999:VI, 2097, para. 7.124. This approach was confirmed by the Appellate
Body in US - FSC , paras. 190-196.
144 Ibid., paras. 190-196.
145 Para. 7.125
146 Panel Report, Canada - Dairy  (Article 21.5 – New Zealand and US), paras. 7.126 - 7.132.WT/DS103/RW2
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provision of like or directly competitive products or services for use in the production of goods for
domestic consumption."  A footnote to paragraph (d) provides: "The term 'commercially available'
means that the choice between domestic and imported products is unrestricted and depends only on
commercial considerations."
3.132  The Complainants further considered that the CEM scheme, like the Special Milk classes
scheme, fulfils all of the elements of paragraph (d) for the provision of an export subsidy which were
identified in Canada - Dairy.147  First, dairy processors continue to have access to milk for dairy
products for export which is priced on more favourable terms than would be available to such
processors when producing for domestic consumption, and on terms that are uneconomic to
producers.  The "terms or conditions … for the provision of like or directly competitive products
… for use in the production of goods for domestic consumption," in paragraph (d), are indisputably
less favourable than those for the provision of CEM for export processing:  milk used for dairy
products for domestic consumption must be quota milk under the domestic supply management
system, for which processors must pay the high domestic price.
3.133  Second, the Complainants continued, the product - milk at below domestic rates - has been
provided "by governments or their agencies directly or indirectly through government-mandated
schemes." Milk is made available for processors for export through a government-mandated
exemption of such milk from the higher regulated price and the enforced exclusion of such milk from
the domestic market.  Producers' only other options are to destroy such milk, or to sell it for animalfeed at the even more uneconomic government-set Class 4(m) price.  Government action creates the
CEM market, including by exempting export processors from the requirement to purchase high-price
in-quota milk;  government action ensures a steady and predictable supply of CEM by requiring that
producers pre-commit to CEM sales and deliver CEM first out of the tank; and the government
polices the market, preventing the diversion of CEM milk and products into the higher-returndomestic market (which would have the effect of driving up CEM prices and destroying the scheme's
economic benefit - deep discounts on milk - to export processors).
3.134  Third, the Complainants submitted, the terms and conditions on which milk is made available
to processors for export are more favourable than those available to them on world markets.  The facts
underlying the original panel's finding on this point have not changed.  For all practical purposes,commercial imports of fluid milk for processing cannot enter Canada due to import restrictions.
148
Thus, if processors want to export dairy products, their only choice is to use domestically-producedmilk.  The Complainants were of the view that this is not a choice which is "unrestricted and depends
only on commercial considerations" in the sense of the footnote to paragraph (d).
3.135  Referring to Canada's argument that imported milk is available to processors for export under
its Import for Re-Export Program (IREP), the Complainants submitted, as was noted in the panel
reports in both Canada - Dairy  and Canada - Dairy Article 21.5 , that access to milk under the IREP
depended on the discretionary issue of a permit by the Minister as well as on the payment of the in -
quota tariff rate
149, not on commercial considerations.150  Both panels concluded that the terms and
conditions for accessing imported milk under that Program were not commercially attractive in
comparison with milk available under Special Milk Classes 5(d) and 5(e).151  With respect to IREP,
the Appellate Body in Canada - Dairy Article 21.5  observed that "[i]n assessing whether alternative
sources of supply are available on more favourable terms, we consider that panels should take account
of all the factors which affect the relative "attractiveness" in the marketplace of the different goods or
                                                     
147 Ibid., para. 7.128.
148 Panel Report, Canada – Dairy (Article 21.5 – New Zealand and US),  paras. 7.53-7.55, 7.131.
149 Ibid., paras. 4.71 and 4.78.
150 Ibid., paras. 6.25-6.26 and 7.53.
151 Ibid.WT/DS103/RW2
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services."152  The Appellate Body went on to emphasise that if an import permit was "granted to
importers as a matter of course, in the context of straightforward import procedures, and if import fees
were only administrative charges to cover expenses, these formalities would be unlikely, on their own,
to mean that imports were available on less favourable terms and conditions."153  If the terms and
conditions on which IREP was made available were more favourable, the Complainants were of the
view that the amount of milk obtainable th rough IREP would be significantly larger.154 Thus,
Canada's CEM scheme constitutes the provision of export subsidies within the meaning of
paragraph (d) of the Illustrative List of Export Subsidies in Annex I of the SCM Agreement .
3.136  Canada  submitted that the alleged export subsidy under Article 10.1 of the Agreement on
Agriculture  is not an export subsidy of the type identified under Item (d) of the Illustrative List of
Export Subsidies in Annex I of the SCM Agreement  as alleged by the Complainants.  Referring to the
text of Item (d), Canada submitted that the term "commercially available" means that the choice
between domestic and imported products is unrestricted and depends only on commercial
considerations.  Three requirements must all be found to exist for a measure to fall within the
definition of an export subsidy in Item (d) of the Illu strative List:  (i)  the raw materials for use in the
production of exported goods must be provided by government or their agencies either directly orindirectly through a government-mandated scheme;  (ii)  the raw materials must be provided on terms
and conditions more favourable than those that apply to raw materials for use in the production of
goods for the domestic market; and  (iii)  those terms and conditions must be more favourable than
those commercially available on world markets to processors.
155
3.137  A threshold issue relating to the first requirem ent, Canada continued, is the meaning of the
provision of goods by governments "directly or indirectly through government-mandated schemes."
In that regard every export subsidy illustrated in Annex I of the SCM Agreement  is by definition an
Article 1.1 "subsidy" that is contingent on export performance.  The words "indirectly through a
government-mandated scheme" in Item (d) must therefore have a meaning consistent with
Article 1.1(a)(1)(iv).  To hold otherwise would impermissibly graft a new type of "financial
contribution" onto the definition of "subsidy" in the SCM Agreement .  As the Appellate Body has
held, "… principles of interpretation neither require nor condone the imputation into a treaty of words
that are not there or the importation into a treaty of concepts that were not intended."156
3.138  With respect to Canada's arguments in paragraph 3.137 above, New Zealand  submitted that
Article 3.1 of the SCM Agreement  makes it clear that the subsidies listed in the Illustrative List are
export subsidies for the purposes of the SCM Agreement .  Once it is determined that a particular
practice falls within the description contained within one of the paragraphs of Annex I, then thatpractice is deemed to be an export subsidy, without further reference to Article 3.1 or Article 1.1 of
the SCM Agreement .  As has been recognised in a number of rulings
157 there is therefore no need for
paragraph (d) practices to be then examined through the spectrum of Article 1.1 of the
SCM Agreement .  As concerns Canada's reference to the Appellate Body's ruling on India - Patents ,
New Zealand submitted that this case appears to contradict Canada's position.  By arguing thatparagraph (d) has to be limited by reference to Article 1.1 of the SCM Agreement and, more
specifically, has to be read in the context of Article 1.1(a)(1)(iv) of the SCM Agreement, Canada is
                                                     
152 Appellate Body Report, Canada Dairy (Article 21.5 – New Zealand and US),  footnote 55.
153 Ibid.
154 In addition, it should be noted that because government action has foreclosed the option to sell additional milk
on the domestic market, processors for export are in a position to negotiate a price that is below the price they would have topay through IREP even if it were available on commercial terms.  Producers have no option if they produce non-quota milkother than to sell it to processors for export.
155 Panel Report, Canada - Dairy  (Article 21.5 – New Zealand and US) , para. 7.128.
156 Appellate Body Report,  India – Patents,  DSR 1998:I, 9, para. 45.
157 See for instance Panel Report, Canada - Autos , para. 10.197 and Panel Report, Brazil - Aircraft Article 21.5,
para. 6.42.WT/DS103/RW2
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indeed trying to introduce the terms "entrust" and "direct" into paragraph (d)158 - terms that are only
found in Article 1.1(a)(1)(iv).
3.139  Canada reiterated that the Canadian governments do not directly themselves provide CEM to
processors, nor do they "entrust or direct" producers to do so through an authoritative instruction orcommand.  Thus, the first of the three requirements of Item (d) is not met.  The issue of whether the
other two conditions of Item (d) are met is, theref ore, moot.  However, it is undisputed that CEM
itself is sold at prices set by the world market.
159  When the panel in Canada - Dairy Article 21.5
addressed Item (d), the point of contention was whether the world market terms were "available" to
processors through Canada's IREP.  The panel's decision in that prior proceeding that world market
terms are not available to processors through IREP was based on its findings with respect to IREP's
requirement that imports are subject to securing a permit from the Department of Foreign Affairs andInternational Trade.  The Appellate Body addre ssed this finding in its discussion of possible
benchmarks for determining the existence of "payments" under Article 9.1(c) of the Agreement on
Agriculture .
3.140  Referring to the situation described by the Appellate Body in its report in Canada - Dairy
Article 21.5
160 concerning the terms and conditions on which IREP is available, Canada  submitted
that of the 2,317 IREP permit requests from August 2000 (when commercial export sales
commenced) to February 2002, no request was denied.  Further, the fees involved are minuscule, less
than one tenth of one per cent (0.025 per cent) of the IREP import values.  Nor, contrary to the
Complainants' suggestions (see paragraph 3.135 above), do the in-quota tariff duties assessed on IREP
imports affect processor decisions.  Dairy pro ducts are imported under IREP duty-free (including
imports from the United States and significant levels of imports of certain dairy products from
New Zealand), or at rates of 7.5 per cent or less.  Where tariffs are assessed, duty drawback permits
the importer to recover these low tariffs.161  In short, Canada asserted, the permitting requirement,
fees, and any applicable in-quota tariff rates associated with IREP are not formalities that make IREP
a commercially non-viable alternative to CEM.
3.141  New Zealand , referring to the arguments in paragraphs 3.131-3.135 above, and to Canada's
response in paragraph 3.140 with respect, in particular, to Canada's duty drawback scheme, submitted
that, as acknowledged by Canada, processors for export face an additional administrative hurdle in
having to lodge an application in relation to a duty drawback scheme as well.  As the Appellate Body
in Canada - Dairy Article 21. 5 observed, New Zealand continued, "panels should take account of all
the factors which affect the relative 'attractiveness' in the marketplace of the different goods or
services" when assessing whether alternative sources of supply are available on more favourableterms.
162  New Zealand reiterated that IREP milk would not be an attractive proposition for processors
for export when they are faced with the in-quota tariff rate and permit fees on top of the discretionary
issuance of the permit itself and other regulatory requirements.
3.142  The other relevant element, Canada  submitted, is to determine whether CEM prices are
available to exporters through IREP.  As the Appe llate Body has stated, a finding under this element
requires, in the context of the current dispute, an examination of the competitive relationship between
CEM and imports under IREP.163  The Appellate Body also noted that "[i]mports under IREP,
                                                     
158 See para. 3.139 below.
159 Appellate Body Report, Canada - Dairy  (Article 21.5 – New Zealand and US) , para. 83.
160 Footnote 55, page 23
161 Drawback is limited on exports to the United States an d Mexico under separate and unrelated requirements of
the North American Free Trade Agreement.
162 Appellate Body Report, Canada - Dairy  (Article 21.5 – New Zealand and US) , footnote 55.
163 Ibid., para. 67.WT/DS103/RW2
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generally, involve whole milk powde r, while CEM involves fluid milk."164  Canada has already
presented data demonstrating the comparability of prices for whole milk powder imported under IREP
and prices for CEM165, and current data show that the milk equivalent price of whole milk powder
continues to be competitive with the price of CEM.166  For the above reasons, therefore, neither the
first nor the third prerequisites for an Item (d) violation have been met.
3.143  In response to Canada's arguments in paragraph 3.142 (and footnote 166) above, the
United States  submitted that it does not agree that a discretionary permit requirement, no matter how
routine its issuance, and an administrative fee constitute "formalities" which do not affect the
commercial attractiveness of the IREP option.  Such "formalities" are at a minimum an administrative
burden that will make IREP purchases less attractive then CEM purchases which require no such
steps.  Indeed, as mentioned elsewhere, the fact that the IREP is so infrequently accessed constitutespersuasive evidence that its terms and conditions are less favourable than those available under
Canada's export schemes.
3.144  Second, Canada relies upon imports of whole milk powder which must be re-hydrated for
most end-uses requiring additional time and expense.  Third, Canada admits that a tariff rate of 7.5 per
cent applies to many imports under the IREP
167, an additional cost which renders the terms of IREP
imports less favourable than CEM milk which does not incur that cost.   Further, the IREP would
require obtaining duty drawback, an additional factor that renders the conditions of IREP less
favourable.  Fourth, and perhaps most important, the United States continued, the prices of IREP
whole milk powder are less favourable than the pric es of CEM fluid milk, using the conversion factor
that the Dairy Farmers of Canada recommends (7.78 litres of milk from one kilogram of whole milkpowder) provides a milk equivalent price of CDN $37.70/hl at the port, which is more than the
average price of CEM milk.
168  Moreover, to be properly compared with CEM milk prices,
transportation and re-hydration charges must be added to the already non-competitive IREP price.
3.145  Finally, whole milk powder is not used in the production of cheese or "other milk products,"
the two categories of exports at issue here.  Rather, whole milk powder is predominately used in theproduction of confectionery products (i.e. candy) in Canada.  Thus, the evidence does not support
Canada's assertion that Canadian manufacturers of cheese and "other milk products" are accessing
whole milk powder imports under the IREP or, even if  they were, that the terms are as favourable as
under the CEM scheme.  Thus, because the CEM scheme satisfies each of the criteria identified in
Paragraph (d) of the Illustrative List, the CEM scheme provides export subsidies for purposes of the
SCM Agreement.  As the SCM Agreement is part of the context of the Agreement on Agriculture, the
fact that the CEM scheme provides subsidies identified in the Illustrative List supports a finding thatthe CEM scheme constitutes an export subsidy under Article 10.1 of the Agreement on Agriculture.
3.146  With respect to Canada's arguments concerning paragraph (d) of the Illustrative List, the
United States considered that Canada's arguments are without legal support.  Because the question in
this case is one of export subsidies, as this panel stated in its original report, it is more appropriate "to
                                                     
164 Appellate Body Report, Canada - Dairy  (Article 21.5 – New Zealand and US , footnote 37.
165 See Canada's response to Panel Question No. 10 in Canada - Dairy Article 21.5  proceedings.
166 In 2001, Canada imported 15,737,202 kgs. of whole milk powder under IREP, which represents a value of
CDN $46,387,255.  Therefore, the average price of whole milk powder per kilogram was CDN $2.95.  As Canada explained
in answer to question no. 10 from the previous Canada - Dairy Article 21.5  panel, there is no standard conversion factor for
whole milk powder. However, using a conversion factor of 11 kg., the standard used by the CDC and commonly used in theCanadian dairy industry and by Canadian dairy research ins titutes, the price of whole milk powder would be CDN $32.42/hl,
or as argued by the United States using a conversion factor of 12.04 kg., the price would be CDN $35.49/hl, both of which
fall within the range of commercial export milk prices, i.e., CDN $23.79-CDN $40.13/hl.
167 Imports from the United States are exempt from these tariffs as a result of the North American Free Trade
Agreement.
168 See Exhibit US-34.WT/DS103/RW2
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examine what practices are considered under the SCM Agreement to be 'export subsidies', rather than
to examine how that Agreement defines the more general concept of a "subsidy" in its Article 1."  In
doing so, the panel considered paragraph (d) of the Illustrative List of Export Subsidies contained in
Annex I to the SCM Agreement to be the most rele vant paragraph.  Referring to the conditions to be
fulfilled to satisfy the requirements of paragraph (d) of the Illustrative List, the United States
reiterated that for the reasons discussed above in paragraphs 3.131-3.135, Canada's CEM scheme
satisfies each of these elements.  Contrary to Canada's suggestion, the United States continued, it is
not necessary first to conduct a separate analysis to demonstrate that the specific terms of
Article 1.1(a)(1)(iv) are satisfied in order to fulfil the requirements of paragraph (d).  Indeed, Canada
itself agrees with this approach.  In Brazil - Aircraft , Canada argued, and the panel agreed, that if a
measure satisfies the Illustrative List, it is not necessary to consider whether it satisfies the broaderdefinition of a "subsidy" in Article 1 of the SCM Agreement .
169  The United States considered finally
that it has established under the fourth element of paragraph (d) that the terms and conditions on
which milk is made available to processors for export are more favourable than those available to
them from other sources.
3.147  Canada  submitted, in response to the Complainants arguments with respect to Item (d) of the
Illustrative List (see paragraphs 3.145 - 3.146, above) that in US–FSC , the Appellate Body held that
all export subsidies prohibited by the SCM Agreement must meet the general definition of subsidy set
out in Article 1.1 and in Canada – Autos , the panel noted that, "all [of the] practices identified in the
Illustrative List are subsidies contingent on export performance."  In Brazil – Aircraft , the panel held
that once it is shown that a measure falls under the Illustrative List, it is per se  an export subsidy, and
it is not necessary to have regard to Article 1.  Here, in contrast, there is an issue as to the meaning of
what is meant by "indirectly through a government mandated scheme."  It is, therefore, necessary to
have regard to Article 1 of the SCM Agreement.
3.148  Further, in US–Export Restraints , Canada continued, the panel held that under the SCM
Agreement Article 1 "subsidy" definition, a transfer of economic resources can be effected eitherdirectly under subparagraphs (i) to (iii) or indirectly through private bodies under subparagraph (iv).
The panel held that a provision of goods only leads to a finding of a financial contribution under
Article 1.1(a)(1)(iv), that is, the government only provides goods indirectly through a private body, if
government entrusts or directs a private body to provide goods through delegation or an authoritative
instruction or command. Canada submitted that it has demonstrated that government, in this case, has
not delegated or given any instruction or command to individual producers to provide CEM to
processors.  Rather, individual producers and proces sors enter into commercial export transactions of
their own volition.
3.149  Canada considered that there is no valid legal basis for not adopting an interpretation of
"indirect" in Item (d) that is consistent with a meaning of that concept in Article 1.  Accordingly,
Canada does not provide goods "indirectly through a government mandated scheme" within the
meaning of Item (d). It is also clear that neither the government nor their agencies provide CEM to
processors directly.  The first element of Item (d) not having been met, there is no export subsidy
within the meaning of that provision.
3.150  New Zealand  submitted, with respect to the arguments in paragraphs 3.147 - 3.149 above that
no authority is cited, and of course none could be, for limiting the meaning of "indirectly" in
paragraph (d) by reference to a specific provision of Article 1.1 - a provision that Canada, not thetreaty, describes as "indirect" subsidization.  New Zealand considered that Canada's arguments have
no foundation in the text of paragraph (d).
                                                     
169 Panel Report,  Brazil - Aircraft Article 21.5 para. 6.42.  This is co nsistent with the text of Article 3.1(a) of the
SCM Agreement which provides that subsidies illustrated in Annex I shall be prohibited.WT/DS103/RW2
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3.151  As concerns the arguments above with respect to administrative formalities, Canada
submitted that these arguments have already been rejected by the Appellate Body.  Nor does Canada
agree that a tariff makes imports under IREP less attractive.  Canada considered in particular that a
tariff subject to drawback, falls into the same category of "administrative formalities" as permits andfees.  They are widely used throughout the world and cannot be considered a meaningful impediment
to importation, in particular, when as in this case, 95 per cent of all dairy products imported under
IREP come in at or very close to duty free.
3.152  Finally, Canada considered that it is not true that prices under IREP are less favourable to
processors than prices of CEM.  Canada presented evidence on pricing under IREP before the first
Article 21.5 panel and in its first written submission in this proceeding.  For all of these reasons,
Canada submitted that it does not provide export subsidies on the production and sale of CEM toprocessors within the meaning of Item (d) of the Illustrative List of Export Subsidies.
(ii) SCM Agreement and Article XVI of GATT
3.153  The Complainants  submitted that Article 1.1 of the SCM Agreement  is also relevant,
providing further guidance in interpreting the meanin g of the term "export subsidy" in Article 10.1 of
the Agreement on Agriculture . This provision provides further context to Article 1(e) of the
Agreement on Agriculture , which states that the term "export subsidies" "refers to subsidies
contingent upon export performance".
170  Article 1.1 includes within the definition of a subsidy "any
form of income or price support in the sense of Article XVI of GATT 1994".  Article XVI describes
supports which "operate directly or indirectly to increase exports of any product" (section A.1).
Furthermore, section B.4 of Article XVI proscribes subsidies that "result[] in the sale of [thesubsidized] product for export at a price lower than the comparable price charged for the like product
in the domestic market".  This includes Canada's CEM scheme whereby the federal and provincial
governments and agencies have created a system which makes milk available to processors for export
at below both its domestic price and its average total cost of production, milk which would not be
available without the CEM scheme.  The CEM scheme is thus a subsidy within the meaning ofArticle 1.1 of the SCM Agreement , as elaborated in Article XVI of GATT 1994.
3.154  Furthermore, New Zealand  added, in both instances, the CEM scheme constitutes a "subsidy"
within the meaning of Article 1.1(a)(2) of the SCM Agreement, and the fact that a "benefit" pursuant
to Article 1.1(b) is conferred is self-evident, as milk priced below its proper value is made available to
processors for export, thereby reducing processor costs.
171
3.155  Canada cannot deny, the United States  continued, that dairy products produced for export
using CEM are priced lower than the same dairy products produced for domestic consumption.Finally, Canada does not dispute that there are no restraints on the availability of the export subsidies
created by the CEM scheme.  Consequently, the export schemes have already resulted in or threaten
to lead to the circumvention of Canada's reduction commitment within the meaning of Article 10.1.
3.156  Thus, the Complainants  concluded, the CEM scheme is a subsidy within the meaning of the
SCM Agreement , and hence is an "export subsidy" within the meaning of Article 10.1 of the
Agreement on Agriculture .  It is a subsidy "contingent upon export performance".  Only processors for
export are granted access to milk that is priced below both its domestic price and its average total cost
of production and the products must be sold on the export market.
                                                     
170 Appellate Body Report, US - FSC , para. 136;  Appellate Body Report, US - FSC Article 21.5 , paras. 193-195;
and Panel Report, Canada - Dairy  (Article 21.5 – New Zealand and US) , para. 7.126.
171 Appellate Body Report, US - FSC Article 21.5 , para. 191.WT/DS103/RW2
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3.157  Canada  submitted that there is no basis upon which to classify commercial milk transactions
as "income or price support" (see paragraph 3.153 above). Canada considered that the Complainants'
position lacks legal analysis and factual support.  First, the arguments of both Complainants regarding
Article 1.1(a)(2) of the SCM Agreement  focus on the perceived effects of commercial export
transactions.  Such casual treatment of this element confuses the alleged measure with its effect, both
of which are required to be shown. Canada referred to the panel in US - Export Restraints  which noted
that the definition of "subsidy" in Article 1 reflects the Members' agreement not only as to the types of
government action subject to the SCM Agreement , but also that not all government actions that may
affect the market come within the ambit of the SCM Agreement .
3.158  Second, Canada continued, both Complainants refer to Article XVI:4 of GATT 1994  (see
paragraph 3.153 above) in support of their pure "effects" based analysis.  However, the AppellateBody has already indicated that the reference to "income or price support" in Article 1.1(a)(2) of the
SCM Agreement  is to Article XVI:1 of GATT 1994 only.  In the opinion of Canada, the allegations of
the Complainants do not demonstrate any element of "support" of any kind in the sense of
Article 1.1(a)(2) of the SCM Agreement .  There is no evidence, since no such evidence exists, that the
government establishes either a support or target price for CEM transactions or any manner ofgovernment-set income target measures for the benefit of dairy processors.  CEM prices are
determined based on the independent decisions of processors as to what price they are willing to pay
and the independent decision of producers as to whether or not they are willing to accept that price.
172
There is no "income support" programme for processors.
3.159  The United States  reiterated that an analysis of Article 1.1(a)(2) of the SCM Agreement  also
supports a finding under Article 10.1 of the Agreement on Agriculture .  The United States considered,
however, that there is no support in the language of  that provision for requiring that the government
set a "target" price or income level.  Article 1.1(a)(2) points instead to " any form  of income or price
support in the sense of Article XVI of GATT 1994."  Nor is there any requirement in Article XVI that
the government set a "target" price or income level.  Canada provides income and price support to itsexporters by exempting milk used in the production of export products from the high domestic price.
It is undisputed that Canadian processors could not compete in the export market without the low-
price inputs (CEM milk) available to them as a result  of this exemption.  Thus, although the individual
prices of the export contracts are negotiated by the producers and processors themselves, this
government exemption from the high domestic price necessarily operates to increase the exports of
dairy products from Canada.  Without it, the processor would have to purchase its milk for export at
the higher domestic price.  This is not the "perceived effects of commercial export transactions" asargued by Canada.
173  This is the guaranteed result of the government-mandated price exemption.
3.160  Referring to New Zealand's arguments concerning "benefit" in paragraph 3.146 above,
Canada replied that the US–FSC  was a case involving the foregoing of government  revenue through a
taxation regime.  The United States does not attempt to establish the required conferral of a "benefit"
for purposes of establishing a subsidy through Article 1.1(a)(2) of the SCM Agreement .  In any event,
Canada has already shown that producers who are sell ing milk to processors in CEM transactions are
able to recover their average cost of production over  time.  Accordingly, they are not providing goods
at less than adequate remuneration, and no benefit therefore exists.174
3.161  Referring to the Complainants’ arguments in paragraph 3.153 above and Canada's response in
paragraph 3.157 above, New Zealand  replied that the panel in US - Export Restraints  made it clear
                                                     
172 Appellate Body Report, Canada - Dairy  (Article 21.5 – New Zealand and US) , para. 79.
173 In any event, the US - Export Restraints  case cited by Canada is inapposite.  That case was brought under
Article 1.1(a)(1)(iv), not Article 1.1(a)(2).  Furthermore, the language relied upon by Canada is obiter dictum .
174 Appellate Body Report, US–FSC , para. 136.WT/DS103/RW2
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that its decision was focused solely upon the specific language of Article 1.1(a)(1)(iv).175  With
respect to "benefit", New Zealand submitted that the Appellate Body in US - FSC  indicated that where
costs have been reduced, a "benefit" has been conferred.  This clearly applies to the present case
where processors for export are being provided with milk that is priced below its proper value.  NewZealand considered that to make a distinction between government revenue foregone and a "benefit"
was misplaced because a "benefit" would exist whether costs are reduced by revenue foregone by
government or foregone by an  independent economic operator.
3.162  With respect to the Complainants’ arguments concerning income or price support (see for
instance paragraph 3.153 et sequitur above) Canada  considered that there is no support in the text of
Article 1 of the SCM Agreement for the Complainants' theory that Canada is providing a form of
"income or price support" within the meaning of Article XVI of GATT 1994.  Contrary to theComplainants' assertions, there are no guarantees that any income will be generated unless it is in the
economic interests of producers and processors that sales occur.  The conclusion that because Canada
does not prevent sales of CEM from occurring at prices mutually agreed to between buyer and seller,
Canada is "supporting" the income generated by these sales is, according to Canada, inconsistent with
the concept of "support".  Such a conclusion would mean that any measure that enables income to begenerated by milk producers could likewise be considered to be income support.
3.163  Canada submitted that there is no authority in GATT jurisprudence for such a wide
interpretation of "income or price support".  While this expression has never been explicitly defined
under GATT law or practice, the 1960 Panel  Review Pursuant to Article XVI:5 provides some
context.  The panel noted that measures had to be analysed on a case-by-case basis but, in consideringsuch matters, spoke of cases such as where a government maintains domestic prices above the world
price by purchases and resales at a loss.  This is far from, in the words of the Appellate Body,
"…establish[ing] a regulatory framework merely enabling a third person freely to make and finance
'payments'".  Canada reiterated that for these reasons, it does not provide export subsidies on the
production and sale of CEM to processors within the meaning of Article 1.1(a)(2) of the SCM
Agreement and Article XVI of GATT 1994.
(iii) Circumvention of Export Subsidy Commitments
3.164  The Complainants  submitted that through the combined exercise of federal and provincial
authority, Canada has established mechanisms in the various provinces to provide processors for
export with milk that is below its domestic price and its average total cost of production, the very
export subsidy that was concluded in the Canada - Dairy Appellate Body report to be contrary to
Canada's obligations under the Agreement on Agriculture .  The Complainants, referring to the
Appellate Body report in US - FSC
176 noted that "to circumvent" meant to "find a way round, evade..."
i.e. a Member would have found a way around or evaded its obligations if it could transfer by another
means the very same economic resources or benefits that it would be prohibited from providing in
another form under Article 3.3 and Article 9.1 of the Agreement on Agriculture .177
3.165  New Zealand , referring to Article 10.3 (burden of proof) of the Agreement on Agriculture
and to the panel in Canada - Dairy178, noted that the effect of Article 10.3 is that exporting in excess
of reduction commitments raises a presumption that there has been circumvention of those
commitments, and thus there is a burden on the Member to establish that the quantities in question are
not subsidized.  Equally, where a Member has taken measures which will enable the export of
subsidized products in excess of reduction commitments, those measures threaten to lead to
                                                     
175 See, for example  Panel Report, US - Export Restraints , para. 8.75.
176 Appellate Body Report, US - FSC , para. 148.
177 Ibid., para. 150.
178 Panel Report, Canada - Dairy  (Article 21.5 – New Zealand and US), para. 7.122.WT/DS103/RW2
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circumvention, even though no quantities in excess of reduction commitments have yet been exported.
Thus, New Zealand continued, in the context of the present case, to the extent that Canada's CEM
scheme enables the export of subsidized dairy products in excess of Canada's reduction commitment
levels, it threatens to lead to circumvention of those commitments.  To the extent that dairy productshave been exported in excess of Canada's reduction commitments, there has been actual
circumvention of Canada's reduction commitments.  In either circumstance, there has been a violation
of Article 10.1 of the Agreement on Agriculture .
3.166  The United States  considered that the export subsidy conferred by the CEM scheme "results
in, or threatens to lead to, circumvention of export subsidy commitments."
179  Canada has thus evaded
its export subsidy commitments by finding a new means (the CEM scheme) to transfer to export
processors the very same economic benefits (i.e. discounted milk) that it was prohibited fromtransferring under the SMC scheme condemned by the DSB under Article 9.1(c) of the Agreement on
Agriculture.  In US - FSC , the Appellate Body concluded that: " ... under Article 10.1 it is not
necessary to demonstrate actual 'circumvention' of 'export subsidy commitments'.  It suffices that
'export subsidies' are applied in a manner ... which  threatens to lead to circumvention  of export
subsidy commitments."
180   In determining whether circumven tion of export subsidy commitments is
likely to result, the Appellate Body concluded that the structure and other characteristics of the
measure are pertinent.181
3.167  Under the CEM scheme, the United States con tinued, the Canadian government requires that
non-quota milk be excluded from consumption in the domestic market. The direct consequence of that
exclusion is that such milk must be used to produce either products for export or animal feed.  Theavailability of discounted milk for export is confined only by the export opportunities available to
Canada's dairy product processors.  The revised export schemes lack any internal limit or control on
the volume of discounted milk going to processors for export.
3.168  As in US - FSC , the absence of any constraints on the use of the CEM export subsidy
confirms, according to the United States, that it is  likely to threaten to lead to circumvention of
Canada's dairy export subsidy commitments.  Moreover, in this case there is not only threatened, but
actual circumvention of Canada's export commitments.  Indeed, Canada's exports of cheese and "other
milk" products in the dairy year 2000-2001 exceeded (or for purposes of Article 10.1, circumvented)
the limitations to which Canada committed itself in the Agreement on Agriculture .
182   Thus, the threat
of additional, unchecked circumvention of Canada's dairy export subsidy commitments is no mere
possibility—it is underway.
3.169  Canada  responded that there has been no circumvention of Canada’s export subsidy
commitments within the meaning of Article 10.1 of the Agriculture Agreement since, as Canada has
demonstrated, there is no export subsidy involved in commercial export milk transactions.
Accordingly, the issue of circumvention is moot.
3.170  New Zealand  submitted that Article 10.1 of the Agreement on Agriculture  is essentially
focused on ensuring that the export subsidy disciplines of the Agreement on Agriculture  are not
circumvented.  But, this is clearly what Canada is attempting to do with the CEM scheme.  New
Zealand considered that the CEM scheme is simply a replacement for Special Milk Class 5(e).  CEM
is achieving precisely what was achieved under Special Milk Classes until the scheme was ruled to be
                                                     
179 Article 10.1 of the Agreement on Agriculture.
180 Appellate Body Report, US - FSC,  para. 148.
181 Ibid., para. 149.
182 See Exhibit US-1; Panel Report, Canada - Dairy  (Article 21.5 – New Zealand and US) , para. 6.8.  Canada is
also on track to exceed its commitments for cheese and "other milk" pr oducts for the dairy year 2001-2002.WT/DS103/RW2
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contrary to Canada's obligations under the Agreement on Agriculture .  New Zealand considered that a
clearer case of circumvention could not be found.
3.171  The Canada - Dairy  panel's observation in paragraph 7.125 of its report acknowledges that
the drafters of Article 10 were trying to capture those export subsidies that did not technically meetthe strict letter of Article 9.1, but nevertheless produced the same subsidization consequences.  This
idea was referred to as well by the Appellate Body in US - FSC , New Zealand continued (see also
paragraph 3.146 above).
(iv) "Non-commercial transactions"
3.172  New Zealand submitted that even if it is not accepted that Canada has applied export
subsidies not listed under Article 9.1 of the Agreement on Agriculture  in a manner which results in, or
threatens to lead to, circumvention of export subs idy commitments in the sense of the first part of
Article 10.1 of the Agreement on Agriculture , it has provided for "non-commercial transactions" in
the sense of the second part of the same article.  New Zealand considered that a non-commercial
transaction is one in which private profit-maximi sing individuals would not , from choice, engage.
They involve transactions on terms that have not been freely negotiated in an open market.
3.173  In the present case, New Zealand continued, the "market" in which these transactions take
place is completely constructed.  The processors for export are being provided with milk that is priced
at below domestic prices and below the average total cost of production.  This is achieved by
prohibiting the sale of such milk in the regulated domestic market and by exempting processors for
export from the obligation to purchase milk at the regulated domestic prices.  Transactions that take
place in such a "market" are not commercial transactions resulting from the normal operation ofmarkets.  Indeed, they are "non-commercial transa ctions" within the meaning of Article 10.1 of the
Agreement on Agriculture .
3.174  The United States  submitted that Canada's revised export scheme is in contravention of the
second clause of Article 10.1 of the Agreement on Agriculture .   Despite the "market" trappings of the
contractual arrangements between producers and processors in the sale of CEM, the United Statesconsidered that those transactions are demonstrably "non-commercial" as CEM sales are uneconomic
for milk producers, who do not come close to reco vering their costs of producing the milk.  CEM
prices have regularly fallen short of producers' fixed and variable costs of production by more than
CDN $20 per hectolitre.  Producers engage in these uneconomic CEM transactions, the United States
continued, because the only other alternatives legally available to them - disposal, or Class 4(m) sales
for animal feed - offer even less of a return on their investment.  The Canadian government thus
leaves them no choice but to engage in "non-commercial" sales of their non-quota milk.  Those salesto export processors, in turn, have resulted in the circumvention (and threaten further, unlimited
circumvention) of Canada's export subsidy reduction commitments.
3.175  The next factor in the analytical framework suggested by the Appellate Body is to consider
whether the availability of discounted milk pursuant to the CEM scheme is "contingent on export
performance."
183  As explained above, under the CEM scheme, the availability of discounted milk is
dependent on use of the milk in the manufacture of dairy exports.  Severe financial penalties prevent
the sale of the discounted milk or its products for any purpose other than export.  In sum, the
United States submitted, Canada's CEM scheme comprises "export subsidies" or "non-commercial
transactions" within the meaning of Article 10.1 of the Agreement on Agriculture , even if the CEM
scheme is found not to meet strictly the definitional requirements of Article 9.1(c) of the Agreement .
CEM subsidies or transactions have already resulted in the circumvention of Canada's export subsidy
                                                     
183 Appellate Body Report,  US - FSC , para. 141.WT/DS103/RW2
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reduction commitments, and they threaten continued, indeed unlimited, circumvention of those
commitments.  As such, the CEM scheme violates Article 10.1 of the Agreement .
3.176  Canada  submitted that there is nothing non-commercial about the CEM market. Nothing in
the context of the Agreement on Agriculture  detracts from or expands the ordinary meaning.184
Producers when they decide to sell CEM, are acting in a purely commercial manner with a view to
making a profit.  They are engaged in an arm's-length business transaction with processors.  Unlike,
for example, buffer stocks of commodities that governments compile and then dispose of by any
means possible such as donations or food aid, such transactions cannot be dismissed as "non-
commercial."  Both buyer and seller are entering into a commercial contract and assuming
commercial risks.  These choices are theirs, not those of the government.  Canada concluded that there
has been no circumvention of Canada's export subsidy commitments within the meaning ofArticle 10.1 of the Agriculture Agreement since there is no export subsidy involved in CEM
transactions.  Accordingly, the issue of circumvention is moot.
3.177  New Zealand  rejected Canada's view with regard  to "non-commercial" (see paragraph 3.168
above) submitting that since it has been established that sales on the CEM market take place at prices
that are lower than the average total cost of production, they are by definition non-commercialtransactions.  Hence, there is circumvention within the meaning of Article 10.1 of the Agreement on
Agriculture .
3.178  Replying to the arguments in paragraph 3.168 above with respect to non-commercial
transactions, the United States  submitted that the export market is a wholly contrived market.  It is
created by the Canadian government.  As noted by the panel in the first Article 21.5 proceedings,there is no difference between the "domestic" market and "export" market in terms of the buyers,
sellers and products they trade.
185  The only difference is the price of milk, which is a result of
government intervention.  The United States reiterated that it has demonstrated that the average price
of CEM milk does not allow producers to recoup their total average cost of production in the long run.
Producers engage in these uneconomic CEM transactions because the only other alternatives legallyavailable to them - disposal, or Class 4(m) sales for animal feed - offer even less of a return on their
investment.  If they produce milk without quota, th e Canadian government leaves them no choice but
to engage in "non-commercial" sales of this milk in the CEM market.  Those sales to export
processors, in turn, have resulted in the circumvention (and threaten further, unlimited circumvention)
of Canada's export subsidy reduction commitments.
3.179  Canada reiterated that it has not created or contrived a market for CEM.  Canada has simply
removed governments from decisions related to the purchase and sale of CEM.  Private parties decidewhether and on what terms they wish to participate in the global market for dairy products.  Canada
certainly did not "contrive" or "create" this global market.  The transactions in which producers and
processors enter are, therefore, commercial.  In addition, the context of other provisions under the
Agreement on Agriculture  suggests a far narrower meaning.  Articles 9.1(b) and 10.4(a) refer to "non-
commercial" in the sense of transactions occurring outside of the normal market of private buyers and
sellers, such as governmental sales or other disposals of food stocks for international food aid.
Commercial export sales clearly do not fit within that context.
D. A
RTICLES 1.1 AND 3 OF THE SCM A GREEMENT
3.180  The United States  submitted that in addition to constituting violations of Articles 9.1(c), or in
the alternative, Article 10 of the Agreement on Agriculture , Canada's measures affecting the
                                                     
184 See Exhibit CDA-19.
185 Panel Report, Canada - Dairy  (Article 21.5 – New Zealand and US) , para. 6.16WT/DS103/RW2
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exportation of dairy products constitute prohibited export subsidies pursuant to Articles 1.1 and 3.1 of
the SCM Agreement .  Notwithstanding the change that Canada imposed on the form of its
programmes, Canada's measures continue to meet  the Appellate Body's definition of a "subsidy"
under Article 1.1 of the SCM Agreement. 186  Canadian governmental authorities continue to provide
milk for export products at a reduced rate.  Under Canada's new scheme, the CDC, CMSMC, the
provincial governments, the milk marketing boards and the new provincial programmes - with their
penalties for milk that is not properly channelled - all work to ensure that this is the case.  The
Appellate Body found that, in such circumstances, "the recipient is paid in the form of goods or
services."187  This, in the opinion of the United States, constitutes a financial contribution under
Article 1.1(a)(1)(iii) of the SCM Agreement .
3.181  The United States, referring to the Appellate Body report in Canada - Aircraft188 with respect
to the term "benefit", submitted that because of the incentive to sell milk at lower prices for export,
the dairy processors who export are the beneficiaries of the CEM scheme in Canada.  Without this
scheme, milk at such discounted prices would not be available through any other channel to
processors for export.  Since those processors have no other source for such low-priced milk and they
could not sell their dairy products into world markets if they were compelled to pay the much higherdomestic prices in Canada for milk, the processors clearly receive a competitive advantage that they
would otherwise lack.  Since the milk for export is provided on lower terms than would otherwise be
available on the market, absent the provincial pricing systems, the financial contribution provides a
benefit within the meaning of Article 1.1(b) of the SCM Agreement .
1.182  The United States submitted furthermore that Canada's CEM scheme requires that milk
purchased at the exempted CEM price must be exported.  As such, these subsidies are "contingent on
export performance" and therefore prohibited under Article 3.1 of the SCM Agreement .  Under the
CEM scheme, when a milk dealer is unable to show  that all the quantities of components of the
volume of milk have been exported, the milk dealer must pay a penalty.  Canada's CEM scheme is,
therefore, "contingent … upon export performance" and, as such, provides prohibited subsidies under
Article 3.1 of the SCM Agreement .
3.183  In conclusion, the United States submitted that Canada's introduction of the CEM scheme to
replace Special Milk Class 5(e) cannot conceal the fact that dairy processors continue to receive milk
for use in the production of exported goods at prices substantially below the proper value of the milk
to the producers.  This price benefit is conferred through export mechanisms authorised, administered,and enforced through governmental action.  Thus, there can be no doubt that Canada's current export
regime for dairy products, consisting of both Sp ecial Milk Class 5(d), and the CEM scheme, provides
an export subsidy within the meaning of the Agreement on Agriculture .
3.184  Canada, referring to the Appellate Body in Canada - Aircraft
189, replied that  the nature of the
government action is determinative as to whether a "financial contribution" exists underArticle 1.1(a)(1).  If a government has not acted in a manner enumerated in Article 1.1(a)(1), then a
"financial contribution" does not exist and there can be no "subsidy".  "Financial contribution" under
Article 1.1(a)(1)(iii) contemplates a direct provis ion of goods by government.  Canada already has
demonstrated that governments do not provide milk to processors.  Producers have the option to
allocate some, none, or all of their production to the commercial export market.  Governments do notmake this decision on behalf of the producers.  Accordingly, Canada's measures do not meet the
definition of "financial contribution" under Article 1.1(a)(1)(iii).  A provision of goods can still be
                                                     
186 Appellate Body Report, Canada - Dairy  (Article 21.5 – New Zealand and US) , para. 87.
187 Ibid., para. 113.
188 Para. 157.
189 Para. 156WT/DS103/RW2
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captured under the definition of "financial contribution" in Article 1.1, Canada continued, if
governments or their agencies "indirectly" provide these goods to processors in the manner set out in
Article 1.1(a)(1)(iv) of the SCM Agreement .
3.185  For there to be a "financial contribution" within the meaning of Article 1.1(a)(1)(iv) of the
SCM Agreement , Canada continued, the government must "entrust or direct" a "private body" to
"carry out one or more of the type of functions illustrated in (i) to (iii)."  That provision was recently
considered in  US–Export Restraints .  In that case the panel found that "the act of entrusting and that
of directing therefore necessarily carry with them the following three elements:  (i) an explicit and
affirmative action, be it delegation [in the case of entrusting] or command [in the case of directing];
(ii) addressed to a particular party;  and (iii) the object of which action is a particular task or duty."190
Something must necessarily be delegated to someone, Canada submitted, or alternatively, someone
must necessarily be commanded to do something.  Further in that case the panel rejected the notion
that the requirements of Article 1.1(a)(1)(iv) are met if there is an effect or a proximate causal
relationship between some government action and a benefit.  The panel concluded that such an
interpretation would read the financial contribution element out of the text of Article 1.191
3.186  Canada has not entrusted or directed producers to provide CEM to processors.  Rather,
producers provide CEM to processors of their own volition.  Canada's measures deregulated the
commercial export market and have nothing to do  with the decision to produce, sell, or purchase
CEM.  None of these measures, or the measures which remain in place to regulate the domestic
market, contains any notion of delegation or comma nd addressed to any private party to provide CEM
to processors.  No government laws or regulations direct or command producers to produce or sellCEM.  Likewise, no government laws or regulations force processors to purchase this milk.  Rather,
these decisions are left entirely to individual producers and processors.  Accordingly, Canada is not
"indirectly" providing goods to processors within the meaning of Article 1.1(a)(iv) of the SCM
Agreement .
3.187  With respect to the issue of "benefit", Canada considered that it has already demonstrated that
producers who are selling milk to processors in CEM transactions are able to recover their average
cost of production over time and thus processors are not receiving any "advantage" or "benefit" within
the meaning of Article 1.1(b) of the SCM Agreement.  Thus, since there is no "subsidy" conferred on
processors within the meaning of Article 1.1(a)(1)(iii) or (iv) of the SCM Agreement , there can be no
"export subsidy" under Article 3.1 of the SCM Agreement .
3.188  The United States  submitted that it has demonstrated that Canada's CEM scheme as well as
the maintenance of Special Milk Class 5(d) constitute prohibited export subsidies under Article 3 ofthe SCM Agreement.
192  The United States considered that Canada has not rebutted this showing.
3.189  In addition to satisfying the particular terms of Article 1.1 of the SCM Agreement, the CEM
scheme also satisfies Paragraph (d) of the Illustrative List, as further discussed above.  With respect to
the federal level of Canada's system, the original panel and the Appellate Body's findings are more
than sufficient to demonstrate that the maintenance of Special Class 5(d) is a prohibited exportsubsidy inconsistent with Article 3 of the SCM Agreement.  At paragraph 7.132 of the original panel
report, the panel found that Special Class 5(d) constituted "an export subsidy as listed in Paragraph (d)
of the Illustrative List of Export Subsidies annexed to the SCM Agreement."  It went on, in the next
                                                     
190 Panel Report, US–Export Restraints , para. 8.29.
191 Ibid. , para. 8.44.
192 As demonstrated in the United States first written submission, Canada has exceeded its commitment levels and
thus failed to conform to its obligations under the Agreement on Agriculture .  As such, its measures are thus subject to
scrutiny under the SCM Agreement  (that is, Canada may not lay claim to the immunity conferred on conforming agricultural
subsidies under SCM Agreement  Article 3 and the Agreement on Agriculture  Article 13(c)(ii)).WT/DS103/RW2
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sentence, to note the "fact" that the scheme involves an export subsidy under the SCM Agreement.
Indeed, this Panel need not analyse the particular requirements of Article 1.1 because the CEM
scheme falls within the scope of the Illustrative List of Export Subsidies.  Canada itself championed
this same approach successfully in another case invo lving export subsidies, i.e. in the original panel.
The panel in the Article 21.5 proceedings in that dispute agreed.
3.190  Just as in the Brazil - Aircraft  dispute, this Panel is confronted with a per se  violation of
Article 3 of the SCM Agreement , namely subsidy schemes that are described in the Illustrative List -
here, in paragraph (d).  The government of Canada, at both the federal and provincial level, provides
milk to dairy processors for export "on terms and conditions more favourable than for provision of
like or directly competitive products or services for use in the production of goods for domestic
consumption."  Canada's measures are, in Canada's own words, ipso facto  an export subsidy and
therefore prohibited.
3.191  Canada  replied that since there is no "subsidy" conferred on processors within the meaning
of Article 1.1(a)(1) or (2), including within the m eaning of Item (d) of the Illustrative List, there can
be no "export subsidy" under Article 3.1 of the SCM Agreement .  When the findings of the Appellate
Body are properly applied to the facts of the present case, it is clear that Canada does not provideexport subsidies on the production and sale of CEM by independent milk producers within the
meaning of the Agreement on Agriculture  or the SCM Agreement .  The evidence shows that producers
are able to sell CEM at prices that cover their "average total cost of production".WT/DS103/RW2
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IV. THIRD PARTIES' ARGUMENTS
A. ARGENTINA
1. Article 9.1 of the Agreement on Agriculture
(i) "payments"
4.1 Argentina  submitted that in this case, the supply of CEM (CEM) by Canadian producers
amounts to a benefit for the processors that might be qualified as a "payment" under Article 9.1(c) of
the Agreement on Agriculture .  In the context of this case, the Appellate Body established, as a criterion
for defining the existence of a payment, that the price charged by the producer of the milk must be less
than the milk's  "proper value"  to the producer.   On this basis, the Appellate Body established that the
benchmark for comparison of prices charged by Canadian producers and determining whether they
were less than the milk's "proper value" to the producer was the "average total cost of production".
4.2 The evidence contributed by the Parties to this proceeding would seem to indicate clearly that
this is the case, particularly if we take as a basis the handbook of the CDC.  Furthermore, the price
agreed between the producer and the processor for expo rt milk cannot simply be seen as a market price.
In a market where the Government of Canada artificially distinguishes between the domestic market,
which benefits from domestic support, and  the export market, it is difficult to conclude that the priceagreed among the producers and processors is a market price.  How much freedom can there be in this
export milk market if the producer does not have alternatives?  Producers are under an obligation to sell
over-quota milk for export.  They end up with a surplus that they cannot limit.  They do not have any
economically more attractive alternative.  Argentina submitted further that the benefit conferred for the
sale of CEM is clearly contingent upon exportation.  Indeed, financial penalties are even envisaged forcases where milk for export is used for the processing of products for domestic consumption.  These
facts have not been challenged during these proceedings.
(ii) "by virtue of governmental action"
4.3 Having identified the existence of a payment,  it must be established that the payment is
"financed by virtue of governmental action".  As determined by the Appellate Body, this relationshipmust be identified case-by-case on the basis of the effect of the governmental action on the payment
made by a third party.  According to the Appe llate Body, "governmental action" embraces a broad
range of activities, "including governmental action regulating the supply and price of milk in the
domestic market".
193  Moreover, it is clear from the text of the provision that the action  does not
require a charge on the public account  to be considered a subsidy under Article 9.1(c) of the Agreement
on Agriculture .  Although the words 'by virtue of' render governmental action essential, Article 9.1(c)
contemplates that payments may be financed by virtue of governmental action even though significantaspects of the financing might not involve government".
194
4.4 According to the criterion established by the original panel, it should be demonstrated that the
Canadian system drives milk producers to make these payments.  The Appellate Body links this
situation with the degree of obligation or conditi oning imposed on producers by the governmental
system to produce additional milk for export.  In the case at issue, it has not been disputed that by virtueof the action of the Canadian Government:  (i) the milk produced over the quota for sale in the
Canadian domestic market cannot be sold in the domestic market (except under class 4m), and (ii) there
is a penalty for diverting this over-quota producti on to the Canadian domestic market.  Producers have
                                                     
193 Appellate Body Report, Canada - Dairy  (Article 21.5 – New Zealand and US) , para. 112.
194 Ibid., para. 114.WT/DS103/RW2
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no economically attractive alternative to selling it for export (CEM) under the conditions laid down by
the system.  Producers are thus under an "obligation" to sell over-quota milk for export.  If the domestic
quota did not exist, milk processors would buy the milk for export at the same price as the milk for
domestic consumption, a price that would undoubtedly be higher.
4.5 Argentina considered that Article 9.1(c) of the Agreement on Agriculture , covers hypotheses
such as the case at issue, in which the processors purchase at a price which amounts to a benefit and do
so "by virtue of governmental action", even if not  directly financed by the Government.  Any other
interpretation would deprive the words "by virtue of" of their meaning.  For reasons set out above,
Argentina submitted that the Canadian regime for the supply of CEM by Canadian producers can be
qualified as an export subsidy under Article 9.1(c) of the Agreement on Agriculture.
2. Article 10.1 of the Agreement on Agriculture
4.6 Argentina submitted that where it is not possible to demonstrate that a measure constitutes an
export subsidy among those listed in Article 9.1, it must be examined to see if it constitutes a
circumvention of export subsidy commitments under Article 10.1.  Article 1(e) of the Agreement on
Agriculture  contains a definition of "export subsidies", which can be further clarified, if necessary, by
reference to the SCM Agreement .  In Canada – Aircraft , the Appellate Body established that a subsidy
under Article 1.1 is a financial contribution which confers a benefit on the recipient in terms more
favourable than those that would otherwise have been available to the recipient in the market.195  It is
clear from this definition that under the SCM Agreement , it is necessary to demonstrate a financial
contribution and a benefit to prove that there is a subsidy.
4.7 For the purposes of determining the existence of a financial contribution, account must be taken
of the original panel's finding that paragraph (d) of the Illustrative List of Export Subsidies was a
"relevant" provision for the purposes of determining the existence of an export subsidy.  Argentina
submitted that, under the Agreement on Agriculture , government action by virtue of which the provision
described in paragraph (d) of the Illustrative List takes place for use in the production of exported goods
constitutes an export subsidy within the meaning of Article 10.1, even if there is no "charge on thepublic account".  The rest of the Agreement on Agriculture  itself also forms part of the "context" of
Article 10.1.  Indeed, it is the most relevant context, since it is the same Agreement.
4.8 Argentina considered that the measure challenged in these proceedings is also a form of income
or price support which operates directly or indirectly to increase exports of dairy products.  These
exports would not be competitive in international markets if the processors were to pay the price
required for milk intended for products sold on the domestic market.
4.9 Processors purchase milk on "terms or conditions … more favourable than those commercially
available on world markets to their exporters" (Illustrative List of Export Subsidies, paragraph (d))
given the restrictions imposed by Canada on imports through their tariff level.  As stated by the
Appellate Body in Canada - Dairy Article 21.5 with respect to the absence of an express standard for
determining which measures involve "payments", "even within Article 9.1 itself, subparagraphs (d) and
(c) expressly provide that the domestic market constitutes the appropriate basis for comparison".
196
Furthermore, various paragraphs of the Illustrative List of the SCM Agreement  contain references linked
to the domestic market.  Similarly, in  Canada - Aircraft , the Appellate Body defined the benefit
conferred under Article 1.1 of the SCM Agreement  by comparing it to the market:  "the marketplace
provides an appropriate basis for comparison in determining whether a 'benefit' has been 'conferred',
because the trade-distorting potential of a 'financial contribution' can be identified by determining
                                                     
195 Appellate Body Report, Canada – Aircraft,  DSR 1999:III, 1377, para. 157.
196 Appellate Body Report, Canada – Dairy (Article 21.5 – New Zealand and US) , para. 75.WT/DS103/RW2
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whether the recipient has received a 'financial contribution' on terms more favourable than those
available to the recipient in the market" (paragraph 157 of the Appellate Body report).  Given that what
is being done here is to determine the existence of a "benefit", Argentina considered that in this case,
comparison with the market price is appropriate.
4.10 It is Argentina's understanding that the "bench mark" fixed by the Appellate Body, the "total
average cost of production", is limited to the determination of the concept of "payment"197 in
Article 9.1(c) of the Agreement on Agriculture , and should not be applied to the concept of "benefit" in
the framework of the export subsidies mentioned in Article 10.1.  Similarly, it should be borne in mind
that the Appellate Body fixed this benchmark as the most appropriate to this case, without suggesting
that it be extended to other WTO disputes.  For the reasons given above, it is obvious that this type of
benefit is contingent on exportation.  The financial penalties for the use of export milk in thepreparation of products intended for domestic consumption are proof enough.
4.11 Furthermore, Argentina considered that the challenged system at least "threatens to lead to
circumvention" of export subsidy commitments assu med by Canada.  According to the Appellate Body
in US - FSC , the absence of limitations to an export subsidy "threatens to lead to circumvention of
export subsidy commitments".  Here, there is no fixed quota for export milk or limitation of any otherkind.  In any case, what counts here is Article 10.3 of the Agreement on Agriculture , according to which
any Member which claims that any quantity exported in excess of a reduction commitment level is not
subsidized must establish that no export subsidy has been granted in respect of the quantity of exports in
question.  In Argentina's view, the characteristics of the system at issue in these proceedings are such
that if it does not qualify as an export subsidy under Article 9.1(c) of the Agreement on Agriculture , it
constitutes an export subsidy which is inconsistent with Article 10.1, since it at least "threatens to
circumvent" the export subsidy commitments of the granting Member.
B. A
USTRALIA
1. Article 9.1 of the Agreement on Agriculture
(i) "payments"
4.12 Australia  submitted that Canada's new category of milk for export processing known as CEM
provides milk to dairy processors/exporters for the export of manufactured dairy products below the
value of the milk to the producer. There is no limit on the sales of CEM to processors/exporters.
Processors are prohibited from selling milk on the domestic market; CEM must be exported.  Processors
are also exempted from purchasing milk for export at regulated domestic prices.  The only way that
producers can sell above-quota or non-quota milk is if it is exported or used as animal feed.
4.13 In using the standard of the average total cost of production for determining whether sales of
CEM involve "payments" within the meaning of Article 9.1(c) of the Agreement on Agriculture ,
Australia considers that sales below the average total cost of production involve "payments" which are
financed by virtue of governmental action.  To th e extent that Canada has exported dairy products in
excess of its scheduled export subsidy quantity reduction commitments, it has therefore breached
Articles 3.3 and 8 of the Agreement on Agriculture .
4.14 Article 9.1(c) of the Agreement on Agriculture  relates to payments on the export of an
agricultural product which are financed by virtue of governmental action.  In the original proceedings, it
was held that "payments" can include payments-i n-kind.  The Appellate Body, in its decision of
                                                     
197 Appellate Body Report, Canada – Dairy (Article 21.5 – New Zealand and US) , para. 92.  "In our view, by relying
upon the total cost of production in this dispute, to determine whether there are 'payments', the integrity of the two discipli nes
[domestic support and export subsidies] is best respected."WT/DS103/RW2
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3 December 2001, noted that Article 9.1(c) of the Agreement on Agriculture  does not expressly identify
a standard or benchmark for determining when a measure involves "payments" in the form of payments-
in-kind.  It reversed the panel's finding that the "right benchmark" is the domestic market price.  It also
rejected the world market price as a valid basis for determining whether the CEM scheme involves"payments".
4.15 Referring to the Appellate Body statement that "the total cost of production includes  all fixed
and variable costs incurred in the production of all the units in question"
198, Australia considered that
this raises two issues:  what components constitute the fixed and variable costs of producing milk;  and
whether nationally determined cost of production data based on farm sampling represents an adequate
measurement for the average total cost of production.  As concerns the Appellate Body statement in
paragraph 87 (fixed and valuable costs) of its report and in paragraph 96 (average total cost ofproduction), Australia considered that the Appellate Body clearly was cognisant that "over time"
producers will make investments determining both their farming capacity and costs with a view to
maximising profits over time.
4.16 Australia noted that there is no agreed international standard/definition which is applied either
across the board or on a sector-specific basis of what reflects the cost of production.  While there maybe existing generally-accepted accounting principles and practices and efforts to develop criteria or
guidelines, these vary from jurisdiction to jurisdiction.  Each WTO Member therefore adopts different
approaches on the methodology on the determination of the average total cost of production.  As the
Appellate Body notes in the context of the lack of an express standard for determining whether a
measure involves "payments", "'payments' need to be  scrutinised carefully in the context of the facts
and circumstances relating to a particular measure and particular case".
199  However, Australia recalls
that the purpose of seeking a benchmark or standard is to "isolate" the subsidy element, or as the
Appellate Body notes, "whether Canadian export production has been given an advantage".200
4.17 As outlined in the CDC's handbook, there are inherent inaccuracies in using the average total
cost of production on all milk produced in Canada.  For example, Canada's approach does not fullyreflect the most inefficient producers with each provincial sample reflecting 70 per cent of producers
and not all costs are reflected in the cost of production, for example, the cost of production quota.  The
exclusion of these producers and the lack of inclusion of the cost of production quota mean that the
CDC's data underestimates the cost of production.  Nevertheless, Australia considers that if this CDC
methodology constitutes the basis on which Canada sets its target price for industrial milk, and the
system of pooling and production quotas, then it serves as a reasonable measure in the context of
determining the average total cost of production in re lation to the CEM scheme and in the context of the
facts and circumstances relating to the CEM scheme.
4.18 Australia considered that the very purpose of  the CDC methodology sugg ests that it would
represent a reasonable methodology for determining th e average total cost of production.  Further, the
fact that the methodology also includes imputed returns to dairy farm resources including unpaid
labour, management and owner's equity and that this is noted in the CDC Handbook as one of the keycost of production factor, cannot then be rejected by Canada as not constituting actual outlays expended
on the production of milk.
4.19 With reference to Canada's argument that the Appellate Body considered that investment and
outlays were to be considered in determining the cost of production, Australia submitted that a full
accounting of the costs of production at any time would include annual rental value of land,
                                                     
198 Appellate Body Report, Canada – Dairy (Article 21.5- New Zealand and US) , para. 94.
199 Ibid., para. 76.
200 Ibid., para. 84.WT/DS103/RW2
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depreciation of capital (including replacement costs of animals), the annualised values of assets such as
quota production rights, the value of owner operator and other family labour as well as paid labour and
current production inputs such as feed, seed, chem icals and fertilisers used in feed production and
veterinary and other animal husbandry costs.
4.20 Australia concluded that the CEM scheme provides Canadian processors/exporters with milk at
a price which is less than the average total cost of production of that milk.  Accordingly, there are
"payments" within the meaning of Article 9.1(c) of the Agreement on Agriculture.  These "payments"
are financed by virtue of governmental action.  To th e extent that Canada has exported dairy products in
excess of its scheduled export subsidy quantity reduction commitments, it has therefore breached
Articles 3.3 and 8 of the Agreement on Agriculture .
4.21 Referring to the comments in paragraph 4.2 above, Canada  submitted that as it has
demonstrated throughout the entire Article 21.5 process, there is no governmental process that provides
CEM to processors.  Rather, it is producers who independently elect whether or not to produce and sell
their product to processors.  If the producer considers that the price being offered is not adequate, the
producer will not produce and sell such milk.  Ind eed, only a minority of Canadian dairy producers (less
than 40 per cent as of December 2001) have participated in CEM transactions and many of these havedone so for only a short time.
201
4.22 As concerns the lack of limit on the sales of commercial export milk and, therefore, export milk
to processor/exporters, Canada explained that as it has deregulated sales of CEM, no limit on the export
of dairy products, other than the limit the market itself sets through the process of supply and demand,
is either necessary or appropriate.  Deregulation removes the need, and indeed the ability, ofgovernments to impose limitations on volume or price.
4.23 Like other participants in this dispute, Australia recognizes that there is no agreed international
standard or definition that is applied either across the board or on a sector-specific basis of what reflects
the cost of production (see paragraph 4.16 above).  The reason for this is that the standard will vary
based upon the purpose of the exercise.  The method used in these proceedings must accord with thefinding of the Appellate Body in the context of Article 9.1(c) of the Agreement on Agriculture .
4.24 The purpose of the CDC methodology for the cost calculation is to establish target returns for
milk sold in the domestic market.
202  In advocating the adoption of the CDC methodology Australia is,
therefore, suggesting the adoption of a benchmark which has already been rejected by the Appellate
Body (i.e., the domestic administered price).  While  Australia is correct that the CDC methodology is
used as part of the basis for managing the domestic milk market, this very fact demonstrates how
inappropriate it is to use this methodology for the purposes of these proceedings.  The Appellate Body
considered that the appropriate standard for these types of payments should be determined by the
motivation of the independent economic operator involved203 and not government regulation.
4.25 With respect to the arguments in paragraph 4.17 above, Canada replied that as is clear from
Canada's first Submission, among the adjustments made by Canada to reflect the findings of the
Appellate Body is to base its calculations on 100 per cent of the sample by adding back the 30 per centexcluded.  Further, Canada does not agree with Australia that inclusion of imputed returns or annualised
value of dairy quota is consistent with the standard set out by the Appellate Body for the determination
of whether or not a payment exists.  Estimating values which do not represent monetary costs incurred
by producers cannot be reconciled with the Appellate Body's requirement for an objective cost of
                                                     
201 Frequency of Producers Participating in CEM.  (Exhibit CDA-15)
202 See para. 3.23 above.
203 Appellate Body Report, Canada - Dairy (Article 21.5- New Zealand and US) , para. 92.WT/DS103/RW2
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production methodology focused on actual outlays.  In addition, while Australia appears to support the
use of generally accepted accounting principles (GAAP), it also attempts to claim that the cost of
production of Canadian producers should include the imputed value of owner-operator and other family
labour, land, and quota rights, which clearly is not an approach consistent with GAAP.
C. EUROPEAN COMMUNITIES
1. Article 9.1 of the Agreement on Agriculture
(i) "payments"
4.26 Referring to the Appellate Body's understandin g with respect to "payments-in-kind", the
European Communities (EC) submitted that it continues to believe that the term "payments" in
Article 9.1(c) of the  Agreement on Agriculture  is confined to transfers of money and referred to all its
arguments made before the Appellate Body on that issue.204  Only because the Appellate Body did not
reverse the panel's finding that this term also cove rs "payments-in-kind", was it then faced with the
problem of determining the correct benchmark price.  Recalling the new average cost of production
standard developed by the Appellate Body as the "appropriate standard for these proceedings"205 and the
statement, that the "existence of payments is de termined by reference to […] motivations of the
independent economic operator who is making the alleged payments"206, the "below average cost of
production standard" focusing on producer motivations has at least three fundamental flaws.
4.27 First, there is no legal foundation for such a standard in the Agreement on Agriculture .  None of
its provisions allow the conclusion that the costs of production of a private party can be the benchmark
for the existence of an export subsidy.  As the United States have pointed out, "cost of production is
such a specific, detailed standard, that normally the negotiators of an agreement would have spent along and difficult negotiation in reaching agreement on that particular standard, and they certainly
would be expected to have agreed to reflect it in the text itself".
207  Second, a cost of production test
determining the existence of a payment by reference to producer  motivations contradicts the notion of
"payment" in Article 9.1(c) of the Agreement on Agriculture , which is recipient -oriented.  The
Appellate Body itself stated this clearly where it explained why the term payments could includepayments-in-kind:
Instead of receiving a monetary payment equal to the revenue foregone, the recipient is
paid in the form of goods or services.  But, as far as the recipient is concerned, the
economic value of the transfer is precisely the same.
208
4.28 The underlying justification for a recipient-oriented approach to the element "payment", the EC
continued, is that it equals the basic concept of "benefit" which is one of the two essential elements of
the notion of subsidy.209   The decisive criterion for whether the recipient has received a benefit is the
market place.  In Canada – Aircraft , the Appellate Body held that the comparison should be made upon
whether the value of what the recipient received is "on terms more favourable than those available  to
the recipient in the market".210
                                                     
204 European Communities' Third-Party Submission to the Appellate Body, para. 16.
205 Appellate Body Report, Canada - Dairy (Article 21.5- New Zealand and US), paras . 96 and 98.
206 Ibid., para. 92.
207 Statement by the United States in the meeting of the DSB on 18 December 2001, page 2.
208 Appellate Body Report, Canada - Dairy (Article 21.5- New Zealand and US) ,  para. 113.
209 Ibid., paras. 87, 90 and 91.
210 Appellate Body Report, Canada Aircraft,  DSR 1999:III, 1377, para. 157 (emphasis added).WT/DS103/RW2
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4.29 The EC considers that, if anything, the appropr iate standard for determining whether payments
have occurred under Article 9.1(c) of the Agreement on Agriculture  would be what is otherwise
available on the market, in particular the world market.  The market place criterion can at least be
derived from the other examples for export subsidies in Article 9.1 of the Agreement on Agriculture  as
well as Article 14 of the SCM Agreement  and item d) of the Illustrative List of export subsidies in
Annex I of the SCM Agreement .  By contrast, items (j) and (k) of the Illustrative List, to which the
Appellate Body referred, concern governmental export credits or related guarantee or insurance
programmes but have not been established to measure whether an indirect subsidy through the provision
of goods by private entities exists.
4.30 Third, the EC is seriously concerned that a produc er-oriented cost of production test makes the
existence of an export subsidy dependent on actions of private entities and sales data to whichgovernments do not have access.  The EC would ra ise the question how WTO Members should be able
to calculate and notify their export subsidies and count them against their reduction commitments?  The
EC considers that the Panel should carefully consider whether to apply the new below-average cost of
production standard.
4.31 The EC strongly disagrees with the industry-average approach, because it not only violates the
general principle whereby production costs have to be analysed on a producer-by-producer basis, but it
also appears to include cost information of farmer s who do not produce for the export market.  The
Appellate Body itself has highlighted that only "about 30 per cent of Canadian producers had
participated in CEM transactions".
211
4.32 If the Panel wanted to determine whether Canadian producers sold milk at below-cost, it would
need to analyse the production costs of those who actually sold CEM.  Only that approach could be
squared with the wording of Article 9.1(c) of the Agreement on Agriculture  whereby there must be a
"payment on the export ", i.e., only payments are relevant which actually occur by exporting.  Moreover,
the EC does not consider it possible to deduce the existence of "payments" simply from the fact that
there is a differential between average total costs of production of CDN $57 as determined by theCanadian Dairy Commission for all dair y farmers and a CEM price of CDN $29.
212  The alleged
average cost of production of CDN $57 even exceeds the administered domestic  market price, which, as
the EC understands it, averages CDN $52,92 per hectolitre.213
4.33 The Appellate Body already found that the clear di fferential between the prices of CEM and the
domestic market price  suggests "the possibility that the prices of CEM might be below the average total
cost of production and, thus, might involve "payments under Article 9.1(c)"214, but evidently did not
consider such differential enough to complete the legal analysis.215  The underlying reason for this is
that the Appellate Body had already found that the Canadian target price as  "administered prices in
general, […] expresses a government policy choice based, not only on economic considerations, but
also on other social objectives" and that "there can be little doubt […] that the administered price is a
price that is favourable to the domestic producers."216  The Appellate Body had clarified that the sale of
CEM by the producer at less than the administered  price does not necessarily imply that the producer
has foregone a portion of the proper value of the milk to it.217
                                                     
211 Appellate Body Report, Canada - Dairy (Article 21.5- New Zealand and US) , footnote 96.
212 See for instance paras. 3.53 and 3.75 above.
213 Appellate Body Report, Canada - Dairy (Article 21.5- New Zealand and US) , para. 101 .
214 Ibid.
215 Ibid., paras. 101-103.
216 Ibid., para. 81.
217 Ibid.WT/DS103/RW2
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4.34 Thus, the very differential between the average price for CEM and the average cost of
production determination by the Canadian Dairy Commission is obviously not capable of substantiating
the existence of payments under Article 9.1(c) of the Agreement on Agriculture .  The EC expects to be
able to comment further on the methodology to be applied by the Panel to measure the existence ofpayments after receipt of the rebuttal submissions and reserves its position on this issue.
(ii) "by virtue of governmental action"
4.35 The EC recalled that that the existence of payments alone is not sufficient to establish an export
subsidy under Article 9.1(c) of the Agreement on Agriculture .  Such "payments" must be "financed by
virtue of governmental action".  The EC noted that  the Appellate Body has essentially replaced the "but
for" test applied by the panel by a more elaborate "demonstrable link" approach that reflects the
wording of Article 9.1(c) of the Agreement on Agriculture .
4.36 Referring to the Appellate Body's considerations, with respect to "demonstrable link" and
"financed by virtue of government action" in para graphs 113 and 115-117 of its report, the EC agreed,
for all the reasons it has set out in the appellate proceedings, that the nature and extent of governmental
involvement in cases of indirect subsidies must amount to a legal requirement to provide a certain
amount of goods at a certain price.
218  Only this standard gives meaning to the terms "financed" and
imposed" as used in Article 9.1(c) of the Agreement on Agriculture  and read contextually with the terms
to describe a financial contribution under Article 1.1(a)(1)(iv) of the SCM Agreement  ("directs") and
item (d) of the Illustrative List of export subsidies in Annex I of the SCM Agreement  ("government-
mandated ").
4.37 The EC considered that the Appellate Body has given full guidance to the Panel on how it
would apply that standard to the facts at hand when emphasising:  "we disagree with the Panel's
characterization of the measure as "obliging producers, at least de facto , to sell outside-quota milk for
export".219  Although the Appellate Body agrees that th e Canadian governmental action establishes a
regulatory regime whereby some milk producers can make additional profits only if they choose to sell
milk, the Appellate Body distinguished this from what  could be the decisive governmental action: the
imposition of an obligation to  produce  additional milk for sale.  Thus, the EC continued, the Appellate
Body considers that only where there is an obligati on to actually produce additional resources at below-
costs there would be a sufficient nexus between governmental action and the provision of milk at
below-cost prices and suggested that this nexus is missing in the Canadian system.  In short, the EC
takes the view that in applying the "demonstrable link" test as elaborated by the Appellate Body, the
Panel can only reach the conclusion that even if payments have been made, these cannot have been
financed by virtue of governmental action.
4.38 With respect to the payment "on the export", the EC noted that the Appellate Body did not
address this element, because it was not appealed, but implicitly declared the panel's approach moot by
reversing the findings of the panel on all elements of Article 9.1(c) of the Agreement on Agriculture .220
The EC is concerned that the panel in its original  report lightly equated this element with the term
"contingent on the export".  If this Panel addresses this third element of Article 9.1(c) of the Agreement
on Agriculture  in the course of this proceeding, because it finds that the two other conditions are met, it
should carefully consider the meaning of the preposition "on" which contains a temporal element and
suggests a closer nexus between the payment and actual exportation than export contingency.
                                                     
218 European Communities' Third-Party Submission to the Appellate Body, paras. 21-25.
219 Appellate Body Report, Canada - Dairy (Article 21.5- New Zealand and US) , para. 117.
220 Ibid., para. 126 reversing all findings in para. 6.79 of the panel report.WT/DS103/RW2
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4.39 In sum, the EC considered that the Panel is faced with the difficult task of carrying out a
remand analysis of whether the Canadian compliance measure is a producer-financed export subsidy
within the meaning of Article 9.1(c) of the Agreement on Agriculture  on the basis of a new below cost
of production standard that is not rooted in the Agreement on Agriculture  and where no methodological
guidance exists.  The EC is seriously concerned about this new standard because it determines the
existence of "payments" by reference to producer motivations and not to what is commercially available
to the recipient  on the market, in particular the world market .
4.40 Canada  submitted that it concurred with the obser vation of the EC that a gap between the CDC
calculated target price and CEM prices cannot be assumed to constitute a payment, since "the Canadian
target price as 'administered prices in general, […] expresses a government policy choice based, not
only on economic considerations, but also on other social objectives'" (see paragraph 4.33 above).  Asthe EC observed, "[T]he Appellate Body had clarified that the sale of CEM by the producer at less than
the administered price does not necessarily imply that the producer has foregone a portion of the proper
value of the milk to it
".221
4.41 Canada also concurred with the observations made by the EC with respect to the nature of the
demonstrable link that is required in this case.  Government action that merely enables producers to dosomething does not meet the test.  Given the particular language of Article 9.1(c) of the Agreement on
Agriculture  as well as the difficulty of which the Appellate Body spoke where the alleged "payment" is
a payment-in-kind
222, there must be a much clearer and tighter linkage between governmental action
and the decisions of private producers to enter into export contracts to satisfy the "financed by virtue of"
element of that Article.  The nexus of which the Appellate Body speaks between any payment made byindependent economic operators and the nature of the governmental action on the part of Canadian
governments does not exist in this case.  In addition, without a tight nexus governments could not be
expected to report and notify "payments" over which they had no control.  Thus, as the EC correctly
observes, even if payments have been made, which Canada denies, these cannot have been financed by
virtue of governmental action.
                                                     
221 Appellate Body Report, Canada - Dairy (Article 21.5- New Zealand and US)
222 Ibid.,  para. 115.WT/DS103/RW2
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V. FINDINGS
A. CLAIMS OF THE PARTIES
1. The Complainants' claims
5.1 New Zealand and the United States claim that Canada's commercial export milk ("CEM")
system provides export subsidies within the meaning of Article 9.1(c) of the Agreement on Agriculture .
5.2 New Zealand and the United States claim, in the alternative, that Canada's CEM system
provides export subsidies or involves non-commercial transactions that are inconsistent with
Article 10.1 of the Agreement on Agriculture .
5.3 New Zealand and the United States claim that Canada continues to export subsidized dairy
products that exceed or threaten to exceed its export subsidy reduction commitment levels in violation
of Articles 3.3 and 8 of the Agreement on Agriculture .
5.4 The United States claims that Canada's CEM system provides prohibited export subsidies
within the meaning of Article 3.1(a) of the SCM Agreement.
5.5 New Zealand and the United States claim that Canada bears the burden of proof, pursuant to
Article 10.3 of the Agreement on Agriculture , to establish that no export subsidy has been granted in
respect of those quantities of dairy products exported in excess of its export subsidy reductioncommitment levels.
2. Respondent's claims
5.6 Canada claims that it does not provide export subsidies within the meaning of Article 9.1(c) of
the Agreement on Agriculture  in respect of CEM.
5.7 Canada claims that it does not provide export subsidies within the meaning of Article 10.1 of
the Agreement on Agriculture .
5.8 Canada claims that it does not provide export subsidies in excess of its export reduction
commitment levels contrary to Articles 3.3 and 8 of the Agreement on Agriculture .
5.9 Canada claims that it does not provide prohibited export subsides in respect of CEM within the
meaning of Article 3.1(a) of the SCM Agreement .
B. 
CONTEXT OF THIS CASE
5.10 The claims of the Parties in this case concern Canada's measures taken to comply with the
recommendations and rulings of the DSB to the effect that Canada had acted inconsistently with its
obligations under Articles 3.3 and 8 of the Agreement on Agriculture , through its scheme of Special
Milk Classes 5(d) and 5(e), by providing "export subsidies" within the meaning of Article 9.1(c) of that
Agreement, in excess of the quantity commitment le vels specified in Part IV, Section II of Canada's
WTO Schedule.
5.11 The Panel recalls that under its previous system, Canada set a support price for domestic milk
tied to a production quota and established Special Milk Class 5(e) for the removal of surplus milk andWT/DS103/RW2
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Special Milk Class 5(d) for milk and dairy products produced under quota for the export market.223
Prices for Classes 5(d) and (e) were negotiated and established on a case-by-case basis between the
Canadian Dairy Commission ("CDC" ) and the processors/exporters.224  The original panel in Canada –
Dairy  found that milk under Classes 5(d) and (e) was made available to processors for export at a
significantly lower price than the price of milk for domestic use .225  In those proceedings, the United
States submitted factual evidence showing that the price for cheese was CDN $27.28 in Special Milk
Class 5(d) and CDN $26.87 in Special Milk Class 5(e) between January to June 1997.226  All Parties
also agreed that Canada's exports of butter, cheese and "other milk products" exceeded Canada's
reduction commitment levels for both marketing years at issue (1995-1996 and 1996-1997).227
5.12 This Panel recalls that the measures taken by Canada to implement the DSB rulings and
recommendations, at issue again in this second recourse to Article 21.5 of the DSU , left in place the
domestic price support mechanism tied to a production quota but eliminated Special Milk Class 5(e)
and restricted exports of dairy products under Special Milk Class 5(d) to Canada's export subsidy
commitment levels.228  Canada also created a new class of domestic milk, Class 4(m), under which any
non-quota milk can be sold only as animal feed at a regulated price.229  In addition, Canada introduced a
new category of milk for export processing known as "commercial export milk" ("CEM"), the price andvolume of which are negotiated directly between the processor and the producer.
230 Under pre-
commitment contracts, producers decide in advance of production how much milk to sell as CEM that
is delivered "first-out-of-the-tank" to processors.231  Milk that is contracted as CEM is exempt from
paying the domestic in-quota price and the diversion of CEM and dairy products made from CEM into
the domestic market is subject to financial and other penalties.232
C. BURDEN OF PROOF
5.13 As noted in the previous section, New Zealand a nd the United States claim that Canada bears
the burden of proof, pursuant to Article 10.3 of the Agreement on Agriculture , to demonstrate that no
export subsidy has been granted in respect of those quantities of dairy products exported in excess of
Canada's export subsidy reduction commitment levels.233  Canada does not dispute the application of
Article 10.3 in this case.234
                                                     
223 Panel Report, Canada - Dairy  (Article 21.5 – New Zealand and US) WT/DS103/RW and WT/DS113/RW,
para. 3.1.
224 Ibid.
225 Panel Report, Canada – Dairy  WT/DS103/R and WT/DS113/R, DSR 1999:VI, 2097, para. 7.50.
226 Ibid., para. 2.51, reproducing US Exhibit 22
227 Ibid., para. 7.34.
228 Appellate Body Report, Canada - Dairy  (Article 21.5 – New Zealand and US)  WT/DS103/AB/RW and
WT/DS103/AB/RW, paras. 4 and 79.
229 Ibid., para. 4.
230 Ibid., paras. 4 and. 79.
231 Ibid., para. 4.
232 Panel Report, Canada - Dairy  (Article 21.5 – New Zealand and US) , para. 6.77  and Appellate Body Report,
Canada - Dairy  (Article 21.5 – New Zealand and US) , para. 4.
233 Para. 3.4 above.
234 Para. 3.5 above.WT/DS103/RW2
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5.14 Article 10.3 provides:
"Any Member which claims that any quantity exported in excess of a reduction
commitment level is not subsidized must establish that no export subsidy, whether
listed in Article 9 or not, has been granted in respect of the quantity of exports inquestion."
5.15 The Panel considers, therefore, that with respect to claims made under the Agreement on
Agriculture , if the Complainants demonstrate that Cana da has exceeded its export subsidy reduction
commitment levels on certain dairy products, and Canada claims it is not providing export subsidies in
relation to those exports, it is then for Canada to establish, pursuant to Article 10.3 of the Agreement on
Agriculture , that no export subsidy, whether listed in Article 9 or not, has been granted in respect of the
quantity of exports exceeding Canada's export subsidy reduction commitment levels.
5.16 On the question of whether Canada has exceeded its reduction commitment levels,
New Zealand and the United States have put forward evidence demonstrating that Canadian exports of
cheese and "other milk products" in marketing year (August-July) 2000-2001 exceeded those quantities
for which Canada has committed to limit its export s ubsidies.  The Complainants also demonstrate that
Canada is likely to exceed these quantities in marketing year 2001-2002.
235  The Panel further notes that
Canada does not dispute that its exports exceeded the quantity in respect of which it could grant export
subsidies for cheese and "other milk products" in 2000-2001 and that they are likely to do the same in
2001-2002.
5.17 Accordingly, the Panel finds  that the Complainants have established that Canadian exports of
cheese and "other milk products" in 2000-2001 have exceeded those quantities in respect of whichCanada has committed to limit export subsidies and that they are likely to exceed those quantities again
in 2001-2002.
5.18 Having found that Canadian exports of cheese and "other milk products" exceed Canada's
reduction commitment levels, and recalling the considerations on the burden of proof as set out in
paragraph 5.15 above, the Panel is of the view that an operational interpretation of Article 10.3 requiresthat the Complainants make a prima facie  showing that the elements of the claimed export subsidies are
present.
5.19 Once the Panel has examined the Complainants claims and arguments, and provided that the
Complainants make out a prima facie  case that certain elements of the Canadian regulation of its dairy
industry constitute export subsidies under either Article 9.1(c) or Article 10.1, it will then be for
Canada, pursuant to Article 10.3 of the Agreement on Agriculture , since it claims that its exports in
excess of its commitment levels are not subsidized, to establish that Canadian exports of cheese and"other milk products" do not benefit from these particular types of export subsidies.
                                                     
235 New Zealand's Exhibits NZ-1 and NZ-2;  United States' Exhibits US-1.  Specifically, the evidence put forward by
New Zealand shows  exports in excess of commitment levels of 9,692 tonnes for cheese and 16,823 tonnes for "other milk
products" for 2000-2001 and an estimated excess for cheese of 8,778 tonnes and 32,600 tonnes for "other milk products" for
the year 2001-2002. The evidence put forward by the United States shows an excess of exports of 8,748 tonnes for cheese andof 33,488 tonnes for "other milk products" for 2000-2001 and estimated excess of 9,608 tonnes for cheese in 2001-2002.  ThePanel notes that the Complainants' figures are provided by marketing year.WT/DS103/RW2
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D. WHETHER EXPORT SUBSIDIES EXIST WITHIN THE MEANING OF ARTICLE  9.1( C) OF THE
AGREEMENT ON AGRICULTURE
1. Introduction
5.20 The Complainants claim that Canada's CEM system provides export subsidies within the
meaning of Article 9.1(c) of the Agreement on Agriculture .
5.21 The relevant text of Article 9.1(c) reads as follows:
"The following export subsidies are subject to reduction commitments under this
Agreement:  … (c) payments on the export of an agricultural product that are financed
by virtue of governmental action … ".
5.22 The Panel notes that the Complainants have focused their arguments under Article 9.1(c) on:
(1) whether there are " payments ";  and (2) if so, whether such payments are "financed by virtue of
governmental action".
5.23 As for the third element under Article 9.1(c), i.e., whether payments are made " on the export "
of an agricultural product, the Panel recalls the finding by the panel in the first Article 21.5 Canada –
Dairy  case that since Canadian federal regulations define CEM as milk that must be exported, any
payment in relation to CEM is a payment " on the export ".236  We further recall that Canada neither
disputed nor appealed this earlier finding.237  We shall therefore not examine this issue further in this
proceeding.
5.24 Accordingly, the Panel shall restrict its analysis of whether the Complainants make out a prima
facie  case of the existence of an export subsidy, within the meaning of Article 9.1(c), to the two
elements actually contested, i.e., whether there are " payments " and, if so, whether such payments are
"financed by virtue of  governmental action".
5.25 Provided we find that the Complainants make a prima facie  case with respect to the existence of
"payments", it will then be for Canada to attempt to discharge its burden of establishing that no
"payments" are being made.  Similarly, provided we find that the Complainants make a prima facie  case
that any such payments are "financed by virtue of governmental action", it will then be for Canada to
attempt to discharge its burden of establishing that it is not by virtue of governmental action that any
such payments are financed.
2. Whether there are "payments"
5.26 The Panel recalls that, as found by the panel and confirmed by the Appellate Body in the
original Canada – Dairy  case, a payment includes a "payment-in-kind".238  This was reaffirmed by the
panel and the Appellate Body in the first Canada – Dairy  case under Article 21.5 of the DSU239 and has
not been re-argued by the Parties in this second examination under Article 21.5.
5.27 At issue before the panel and the Appellate Body in the first Article 21.5 case was the
appropriate benchmark to measure whether or not "payments" were being made under Canada's
                                                     
236 Panel Report, Canada – Dairy (Article 21.5 – New Zealand and US),  para. 6.78.
237 Appellate Body Report, Canada – Dairy (Article 21.5 – New Zealand and US), paras. 62-63.
238 Panel Report, Canada – Dairy , DSR 1999:VI, 2097, para. 7.101;  Appellate Body Report, Canada – Dairy ,
DSR 1999:V, 2057, para. 112.
239 Panel Report, Canada – Dairy (Article 21.5 – New Zealand and US),  para 6.12; Appellate Body Report, Canada –
Dairy (Article 21.5 – New Zealand and US), paras. 71 and 76.WT/DS103/RW2
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implementation measures.240  The Appellate Body rejected the Article 21.5 panel's reliance on the
regulated domestic price and on world market prices, finding that neither represents an appropriate
benchmark for determining whether sales of CEM by producers involve payments.241  The Appellate
Body stated that the existence of a payment requires a comparison between the prices of CEM and"some objective standard reflect[ing] the proper value" of milk to the producer
242, in this case, "the
average total cost of production".243
5.28 The Panel recalls the Appellate Body's reasoning equating "payments" with the transfer of
economic resources244 and, on this basis, focusing on whether CEM prices are sufficient to recover
average fixed and variable costs of production, and thus on whether producers are able to avoid making
losses in the long run.245
5.29 The Panel notes that the Complainants and Canada disagree on how this newly enunciated
benchmark of average total cost of production should be interpreted and applied.  The Panel, in
recalling its analysis in paragraphs 5.18-5.19 and 5.25 above, will first examine whether the
Complainants make a prima facie showing of the existence of "payments".  Provided the Complainants
make such a showing, it will then be for Canada, pursuant to Article 10.3 to establish that no
"payments" within the meaning of Article 9.1(c) are being made.
(a) Whether the Complainants make a prima facie case of the existence of "payments"
5.30 The Complainants ask the Panel to apply the "average total cost of production" benchmark, as
enunciated by the Appellate Body, to the determination of whether there are payments in this case.246
Specifically, the Complainants request us to consider that the Appellate Body's cost of productionbenchmark should be construed as referring to an industry-wide average.
247
5.31 For the purposes of applying the Appellate Body's benchmark, the Complainants ask the Panel
to rely on survey data collected annually in accordance with the CDC Handbook of COP Principles and
Practices ("CDC Guidelines") and used to set the domestic in-quota price ensuring a fair return to
efficient dairy producers in the domestic market.248  Complainants contend that the CDC survey data
represents a reasonable, albeit conservative, reflection of the cost of production of the Canadian dairyindustry.
249  They further contend that while the survey data excludes cost of production data for the
30 per cent least efficient producers and for producers with less than 60 per cent of the average annual
output in each province250, as well as the cost of domestic quota251, the CDC data and Guidelines
otherwise account for all the relevant cost elements, i.e., all the fixed and variable costs, of producing a
unit of milk.252
5.32 On the question of which cost elements to incl ude, the Complainants argue that because the
Appellate Body referred to all fixed and variable costs, imputed costs should be included in such
                                                     
240 Appellate Body Report, Canada – Dairy (Article 21.5 – New Zealand and US), paras. 74-75, 96, 104.
241 Ibid., paras. 82, 85 and 104.
242 Ibid., para. 74.
243 Ibid., para. 96.
244 Ibid., para. 76.
245 Ibid., para. 87.
246 Paras. 3.11 and 3.55 above.
247 Paras. 3.60-3.61 above.
248 Para. 3.16 above.
249 Ibid.
250 Para. 3.18 above.
251 Para. 3.42 above.
252 Para. 3.16 above.WT/DS103/RW2
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calculation.253  An accurate calculation of the cost of production, they contend, cannot be limited only to
cash outlays because the Appellate Body spoke in terms of the investment of economic resources
required in the production of goods and the amount a producer must recoup in order to avoid making
losses. 254  Thus, the Complainants assert a farmer would have to recoup the costs of family labour,
return to management and equity, quota and costs for the marketing of milk in order to stay in
business.255  It would be inconsistent, they submit, to co nsider that a farmer using family labour and
management makes a profit to the extent that this labour is not remunerated.256  F u r t h e r ,  t h e
Complainants point out that equity financing represents  just an alternative to debt financing that gives
rise to costs.257  On the question of including quota, the Complainants argue that quota is an investment
related to the production of milk and thus a cost, regardless of whether or not generally accepted
accounting principles ("GAAP") require its amortization.258  As to marketing, transport and
administrative costs, the Complainants maintain th eir exclusion would amount to drawing an artificial
distinction between costs of production and costs associated with sale because there would not be any
point in a farmer producing milk if that farmer could not afford to sell the milk.259
5.33 The CDC data, the Complainants point out, show  an industry-wide average cost of production
of CDN $58.12 per hectolitre in 2001 and of CDN $57.27 per hectolitre in 2000.260  In contrast, they
assert, the average price for CEM was CDN $29 in 2000 and continued to be close to that level in
2001.261  Comparing these figures, they ask the Panel to conclude that sales of CEM are made well
below the average total cost of production and that, hence, "payments" within the meaning of
Article 9.1(c) are being made.262
5.34 Recalling the considerations set out in paragraphs 5.18-5.19 above, we find that the
Complainants' case, as described in paragraphs 5.30-5.33 above, constitutes a prima facie  showing that
"payments" within the meaning of Article 9.1(c) are being made, such that Canada can reasonably
attempt to discharge its burden under Article 10.3 of the Agreement on Agriculture  of establishing why
CEM sales do not involve "payments"
(b) Examination of Canada's case on the issue of "payments"
(i) Canada's position on its implementation of the DSB's recommendations
5.35 Canada claims that it has fully implemented the rulings and recommendations of the DSB
following adoption of the panel and Appell ate Body reports in the original case on Canada – Dairy .263
In this connection, Canada states that export trans actions outside of Special Class 5(d) occur without
government interference of any kind, and as such, do not benefit from export subsidies.264
                                                     
253 Para. 3.29 above.
254 Paras. 3.11, 3.29 and 3.77 above citing Appellate Body Report, Canada – Dairy (Article 21.5 – New Zealand and
US), para. 87.
255 Para. 3.32 above.
256 Paras. 3.32 and 3.34 above.
257 Paras. 3.26 and 3.34 above.
258 Paras. 3.42 – 3.43 and 3.46 above.
259 Para. 3.52 above.
260 Para. 3.53 above, based on Canadian Dairy Commission: Estimated Cost of Producing Milk.
261 Para. 3.53 above.
262 Paras. 3.54–3.55 and 3.75 above.
263 Para. 3.108 above.
264 Ibid.WT/DS103/RW2
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(ii) Canada's rejection of an industry-wide application of the benchmark
5.36 The Panel notes that Canada disagrees with the Complainants' contention that the Appellate
Body intended an industry-wide calculation of the average total cost of production as the relevant
benchmark for determining the existence of pa yments, within the meaning of Article 9.1(c).265  I n so
arguing, Canada refers to the Appellate Body's stat ement that a payment is determined "by reference to
a standard that focuses upon the motivations of th e independent economic operator who is making the
alleged 'payments' – here the producer – and not upon any government intervention in the
marketplace."266  Canada asserts that the Appellate Body therefore intended that an appropriate
calculation of the average total cost of production should be based on the average costs of individual
producers and not the entire dairy industry.267  Additionally, Canada refers to the statement by the
Appellate Body to the effect that "[t]he average total cost of production [should be determined] … bydividing the fixed and variable costs of producing all milk, whether destined for domestic or export
markets, by the total number of units of milk produced for both these markets."
268  Rather than speaking
here in terms of an industry-wide calculation of the average total production cost, Canada contends that
the Appellate Body was merely indicating that both domestic and export production of the individual
producer should be taken into account when calculating that average.269
5.37 Canada also draws the Panel's attention to the repeated usage of the singular form of
terminology by the Appellate Body in connection with its description of the benchmark.270  T h e s e
references, Canada maintains, are indicative of th e Appellate Body's focus on the cost of production of
the individual  producer.271  Moreover, Canada suggests the reference to "milk producers" cannot
automatically be interpreted as meaning the "industry".272
5.38 Canada further argues against using an industr y-wide average cost of production benchmark
because the application of "a single industry-wide average would prevent efficient producers from being
able to participate in legitimate commercial transa ctions without being deemed to confer a 'payment'
merely because of the cost of production of higher cost producers."273  Canada argues that the
application of an industry-wide average is particularly inappropriate because of the large variation ofcosts of production within the Canadian dairy industry.
274
5.39 Moreover, Canada asserts that it would be very difficult for any government under an industry-
wide application of the benchmark to monitor and notify its export subsidies, as costs of production
within an industry may change from year to year.275
(iii) Applicable benchmark in this case
5.40 In view of the fact that the DSB has adopted the Appellate Body Report setting forth the
"average total cost of production" as the relevant benchmark to determine the existence of "payments"under Article 9.1(c), and given that all Parties in this Second Recourse to Article 21.5 of the DSU are in
                                                     
265 Paras. 3.59, 3.62-3.63 above.
266 Appellate Body Report, Canada – Dairy (Article 21.5 – New Zealand and US), para. 92.
267 Para. 3.62 above.
268 Appellate Body Report, Canada – Dairy (Article 21.5 – New Zealand and US), para. 96.
269 Para. 3.62 above.
270 Para. 3.63 above referring to statements by the Appellate Body Report in Canada – Dairy (Article 21.5 –
New Zealand and US) , paras. 81, 86, 87, 92, 94 and 96.
271 Para. 3.63 above.
272 Para. 3.62 above.
273 Canada's Response to Question No. 63.
274 Para. 3.59 above.
275 Canada's Comments on the Responses of New Zealand and the United States, para. 52.WT/DS103/RW2
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agreement that this is the benchmark the Panel should apply276, none of them having endorsed the
criticisms set forth in the European Communities' Third-Party Submission277, the Panel shall
accordingly apply this newly enunciated benchmark in this case.
(iv) Appellate Body's guidance on the nature of its newly enunciated benchmark
5.41 In order to assess Canada's proposed interpretation of the Appellate Body's benchmark, the
Panel considers it useful to first review the guidan ce provided by the Appellate Body on this issue.
5.42 The Panel notes in this connection the Appellate Body's statement that "it is significant that
Article 9.1(c) of the  Agreement on Agriculture   does not expressly identify a standard or benchmark for
determining whether a measure involves 'payments'."278  As general guidance, the Appellate Body said
"that there are 'payments' under Article 9.1(c) when the price charged by the producer of the milk is less
than the milk's proper value  to the producer".279  But it went on to explain that "it is necessary to
scrutinize carefully the facts and circumstances of a disputed measure, including the regulatory
framework surrounding that measure, to determine th e appropriate basis for comparison in assessing
whether the measure involves 'payments' under Article 9.1(c)."280  Hence, the Panel understands that the
standard proposed by the Appellate Body may need to change according to the particular factual and
regulatory context.
5.43 In fashioning what it considered to be the appropriate benchmark, the Appellate Body
emphasized that "the standard must be objective and based on the value of the milk to the producer."281
It then posited that:
"for any economic operator, the production of goods … involves an investment of
economic resources, … an investment in fixed assets … and an outlay to meet variablecosts … .  These fixed and variable costs are the total amount which the producer must
spend in order to produce the milk and the total amount it must recoup, in the long-
term, to avoid making losses.  To the extent that the producer charges prices that do not
recoup the total cost of production, over time, it sustains a loss which must be financed
from some other source, possibly 'by virtue of governmental action'."
282
5.44 In recognizing that Members' domestic subsidies may in some instances provide spillover
benefits to exports, the Appellate Body considered  that such a situation should not automatically be
characterized as an export subsidy, but that domestic support should not be used without limit.283  The
Appellate Body thus opined that an appropriate benchmark should respect the separation between the
disciplines on domestic and export subsidies.284  It accordingly declared that the average total cost of
                                                     
276 Paras. 3.9 and 3.12 above.
277 We recall that only the European Communities, as a Thir d Party, argues against the use of the Appellate Body's
"average total cost of production" benchmark, noting that this benchmark has no legal foundation in the Agreement on
Agriculture , that it inappropriately focuses on the provider, rather than the recipient, of a payment and that it is impractical to
apply.  The European Communities also observes that othe r WTO Members, including the United States, critiqued this
benchmark in the DSB meeting at which the Appellate Body Report was adopted.  (paras. 4.27 – 4.33)
278 Appellate Body Report, Canada – Dairy (Article 21.5 – New Zealand and US), para. 76.
279 Ibid., para. 73.
280 Ibid., para. 76.
281 Ibid., para. 86.
282 Ibid., para. 87.
283 Ibid., paras. 89-91.
284 Ibid., paras. 91-92.WT/DS103/RW2
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production is the appropriate benchmark for determining, in the circumstances of this case, whether
there are "payments" within the meaning of Article 9.1(c).285
5.45 The Appellate Body also indicated that it favoured reliance on the average of all fixed and
variable costs  incurred in the production of a unit of milk, rather than on the marginal (variable) costs
incurred in producing an additional unit of milk, noting that:
"[a]lthough a producer may very well decide to sell goods … if the sales price covers
its marginal costs, the producer will make losses on such sales unless all of the
remaining costs associated with making these sales, essentially the fixed costs, are
financed through some other source, such as through highly profitable sales of the
product in another market. … In the ordinary course of business, an economic operator
chooses to invest, produce and sell, not only to recover the total cost of production, butalso in the hope of making profits."
286
5.46 With the above as background, the Appellate Body concluded that:
"in the circumstances of these proceedings, … we believe that the average total cost of
production represents the appropriate standard for determining whether sales of CEM
involve 'payments' under Article 9.1(c) of the  Agreement on Agriculture .  The average
total cost of production would be determined by dividing the fixed and variable costs of
producing  all  milk, whether destined for domestic or export markets, by the total
number of units of milk produced for both these markets."287
(v) Panel's analysis of the nature of the benchmark
5.47 The Panel notes that the Appellate Body did not specifically address whether this new
benchmark – the average total cost of production of all milk – should be assessed as an industry-wide
average or on some other basis more accurately reflecting the actual costs of individual producers and
their participation in the CEM market.  On the one hand, the Appellate Body's enunciation of the
standard seems to be consistent with an industry-wide approach, where it speaks in terms of
determining "[t]he average total cost of production … by dividing the fixed and variable costs ofproducing all milk, whether destined for domestic or export markets, by the total number of units of
milk produced for both [domestic and export] markets."
288  In a similar vein, the Appellate Body, in
recalling the Article 21.5 panel's observation that there is a clear differential between the prices of CEM
and the domestic market price, stated that "[t]his suggests the possibility that the prices of CEM might
be below the average total cost of production and, thus, might involve 'payments' under
Article 9.1(c)."289 On the other hand, the Appellate Body also made references to "[e]ach producer
decid[ing] for itself whether, and when, to produce and sell milk as CEM"290 and to the need to focus on
the choices and "motivations of the independent economic operator".291
5.48 We note some additional textual support in the Appellate Body's analysis for the use of the
industry-wide approach.  Specifically, the Appellate Body considered that the cost of producing  all
milk should be divided by the total number of units  of milk.292  Had the Appellate Body wanted us to
                                                     
285 Appellate Body Report, Canada – Dairy (Article 21.5 – New Zealand and US), paras. 88 and 92.
286 Ibid., paras. 94-95.
287 Ibid., para. 96.
288 Ibid., para. 96.
289 Ibid., para. 101.
290 Ibid., para. 79.
291 Ibid., paras. 92 and 96.
292 Ibid., para. 96.WT/DS103/RW2
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divide the cost of production of the individual pr oducer by the total number of units of milk produced
by that producer, it surely would have so instructed.  The Appellate Body confirmed that it "adopted as
a standard, for these proceedings, the average total cost of production of the milk producers ".293
(emphasis added)  This would suggest that the Appellate Body was not focusing on individual producer
costs, as Canada contends.
5.49 In response to the Complainants' arguments, Canada proposes an interpretation of the Appellate
Body's use of the phrase "costs of producing all milk" as merely referring to all the units of milk,
whether produced for the domestic or export market, of each individual producer.294  Given the context
in which the Appellate Body referred to " all milk", i.e., in setting forth the very method of calculating
the average total cost of production, and the absence of express textual directive to that effect, the Panel
is not persuaded by Canada's suggestion that we should imply that the Appellate Body intended acalculation for each individual  producer.
5.50 In our understanding, the Appellate Body reference to "a standard that focuses upon the
motivations of the independent economic operator who is making the alleged 'payments' – here the
producer – and not upon any government intervention in the marketplace"
295, was made in the context
of its concern that automatically characterizing any governmental intervention in the form of domesticprice support that benefits exports as an export subsidy would collapse the distinction in the Agreement
on Agriculture  between domestic and export disciplines.
296  Accordingly, we have some doubts as to
Canada's conclusion that the Appellate Body's benc hmark should be each individual producer's average
cost of production rather than an i ndustry-wide average cost of production.
5.51 At this stage, the Panel is not persuaded that Canada is correct in its proffered interpretation of
the benchmark enunciated by the Appellate Body.  Nonetheless, in recalling that it is Canada's burden to
establish that no payments are being made, we shall examine whether Canada, in relying on the costs to
individual producers to determine the average total cost of production, provides a convincing defence
that no payments are being made.
(vi) Canada's critique of the Complainants' relian ce on the CDC data and its arguments in favour
of individual producer data
5.52 The Panel notes that Canada, following on from its criticisms of the application of an industry-
wide benchmark, proceeds to reject reliance on the CDC Guidelines and survey data as a valid basis for
determining the average total cost of production.297  While not contesting the validity of the data
collected by the CDC, Canada argues that this data is collected for a different purpose and does not
provide relevant information for this case.298  Notably, Canada contends that the CDC Guidelines and
the data collected in accordance with these Guidelines serve the economic and social objective of givinga fair return to efficient dairy producers, and that this is different from data on the actual costs of
production.
299
5.53 Because the CDC Guidelines and the data collected serve economic and social objectives,
Canada maintains they do not provide a standard for assessing "payments" that is objective, as required
by the Appellate Body.300  Further, because the Appellate Body stated that the relevant standard should
                                                     
293 Appellate Body Report, Canada – Dairy (Article 21.5 – New Zealand and US) , para. 104.
294 Para. 3.62 above.
295 Appellate Body Report, Canada – Dairy (Article 21.5 – New Zealand and US) , para. 92.
296 Ibid., paras. 88-92.
297 Para. 3.19 above.
298 Paras. 3.57 and 3.19 above.
299 Para. 3.19 above.
300 Paras. 3.80 – 3.81 above.WT/DS103/RW2
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focus on the motivations of the independent economic operator and not any government intervention in
the marketplace, it is inappropriate, in Canada's view, to rely on the CDC Guidelines, which are
reflective of Canadian governmental policy towards the dairy industry.301  Moreover, Canada asserts
that in proposing reliance on the CDC survey data, the Complainants seek to reintroduce the domesticadministered price as the relevant benchmark.
302  Canada notes that this benchmark was explicitly
rejected by the Appellate Body.303
5.54 Canada also argues that the CDC survey data is an inappropriate basis for determining the
average total cost of production in that it excludes the 30 per cent least efficient farmers, as well as
those farmers with less than 60 per cent of the average production/output in each province.304  Canada
has indicated that those small farms account for approximately 18 per cent of all milk production in
Canada.305
5.55 However, Canada does not reject the cost of production survey data in its entirety.306  Rather, it
proposes certain adjustments to the CDC calculations.307  First, Canada proposes including, in principle,
the 30 per cent less efficient farms.308 To the eligible pool of more than 19,000 dairy farms in the nine
provinces with farms participating in the CEM market, Canada applies a "statistically valid sampling
method" to obtain a representative sample of 274 dairy farms whose costs of production are surveyed.309
The costs for each farm are computed on a per unit basis (dollars per hectolitre) and each farm is then
ranked from lowest to highest according to its individual cost of production.310  Then Canada divides
the 274 farms by 10 to create 10 groupings (deciles) of producers.311  The individual farms are then
weighted according to their production and an average weighted cost is calculated for each decile.312
5.56 In order to provide information on the price of CEM contracts, Canada takes price and volume
data from 785 CEM contracts, as reflected on the bulletin boards of Quebec, Ontario and Manitoba, and
divides this number of contracts into deciles.313  It then calculates an average CEM price, weighted
according to volume, for each decile.314  To calculate the weighted average return, Canada deducts
transport, marketing and certain administrative fees from the price of CEM contracts.315
5.57 Comparing the CEM returns of the 785 contracts with the cost of production of 274 dairy
farms, Canada purports to show that more than three-quarters (about 77 per cent) of dairy producers can
cover their average costs of production through CEM sales.316  On the same basis, Canada does not
contest the fact that approximately 23 per cent of dairy producers in the sample cannot cover their
average costs of production in the CEM market.317  Nonetheless, Canada argues it is reasonable to
                                                     
301 Paras. 3.13 and 3.19 above.
302 Para. 3.41 above.
303 Ibid.
304 Paras. 3.19 – 3.20 and 3.23 above.
305 Footnote 72 above.
306 Para. 3.57 above.
307 Paras. 3.56 – 3.58 above and Canada's Exhibit CDA-8.
308 Para. 3.58 above and Canada's Exhibit CDA-8.
309 Para. 3.57 above and Canada's Exhibit CDA-8.
310 Canada's Exhibit CDA-8.
311 Para. 3.57 above.
312 Canada's Exhibit CDA-8.  While the Panel understands from CDA-8 that the cost of production within each decile
is weighted according to output, we note Canada's Res ponse to Question No. 39 to the effect that the cost of production within
each decile is not weighted.
313 Canada's Responses to Question Nos. 41-44.
314 Canada's Exhibit CDA-11.
315 Paras. 3.51 – 3.52 and 3.65 above.  The Panel notes that Canada has also deducted these transport and
administrative fees from the cost of production calculations.
316 Para. 3.66 above.
317 Paras 3.66 and 3.70 above.WT/DS103/RW2
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assume that a rational producer would participate in the CEM market only if he or she could cover his
or her production costs.318  Therefore, Canada maintains, there is no reason to assume that the 23 per
cent of producers who cannot cover their production costs would participate in this market.319
(vii) Panel's assessment of Canada's arguments  and data on individual producers' costs
5.58 We recall Canada's argument that an individual producer's average total cost of production
should be the relevant yardstick for determining whether payments are being made.320  If Canada can
convincingly show that the individual producers' costs of production allow the producers to participate
in the CEM market without making losses, then, in our assessment, no payments are actually being
made.
5.59 Looking at the data Canada adduces, we register concerns as to the objectivity of this evidence:
while Canada includes the 30 per cent of producers excluded from the CDC survey data, it does notinclude cost data from the small farms with less than 60 per cent average output in each province.
321
5.60 We further note that, in the data presented by Canada,  the unweighted cost of production of the
individual producers, in Canada's sample, is  as low as CDN $7.01 and as high as CDN $66.80322, while
the weighted average cost ranges from CDN $18.53 to CDN $46.60.323  At the same time, we note that
the weighted CEM returns amongst the 785 contracts in the three provinces sampled, range fromCDN $24.15 to CDN $33.61.
324  We recall the statement by the Complainants, uncontested by Canada,
that the simple average of CEM prices in 2000 was approximately CDN $29.325
5.61 Thus, in comparing the non-weighted data on the individual producers' costs with the simple
average CEM price, we observe that the average cost of production of some producers significantly
exceeds the average CEM price.  Further, if we are to accept Canada's argument that cost data and CEMreturns should be weighted according to output
326, a still significant proportion of producers clearly
cannot cover their costs through CEM sales.  We recall that Canada does not contest – in fact admits –
that approximately 23 per cent of dairy producers in the sample cannot cover their average costs of
production in the CEM market.327
5.62 We also note that, according to Canada's evidence, approximately 8,000 producers, or 40 per
cent of all producers (in the nine provinces), have participated, at least on occasion, in the CEM
market.328  Also according to Canada's evidence, CEM production represents approximately 3.6 per cent
of all milk production in Canada.329  Canada has also indicated that participation in the CEM market is
usually only short term and that only a minority of CEM producers (12.5 per cent) participate for more
than one year.330  This may suggest that even if there are producers who can cover their
                                                     
318 Canada's Response to Question No. 4(a).
319 Ibid.
320 See paras. 5.36-5.37 above.
321 We recall our exposition of Canada's argument at para. 5.54 above as well as at para. 3.58 and footnote 72 above.
322 Canada's Exhibit CDA-9; Canada's Response to Question No. 41.
323 Canada's Exhibit CDA-9.
324 Canada's Exhibit CDA-13.
325 Paras. 3.66 and 3.70 above.
326 Footnote 72 above.
327 Paras. 3.66 and 3.70 above.
328 Para. 3.70 above.
329 Footnote 85 above.
330 Para. 3.70 above and Canada's Exhibit CDA-15.WT/DS103/RW2
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marginal costs in the CEM market, CEM sales are not viable for most producers who thus may only
participate in the CEM market to the extent necessary to dispose of non-quota surplus milk.331
5.63 Given that Canada accepts that 23 per cent of producers have production costs exceeding CEM
returns, and recalling that Canada has invited us to focus on the costs of production of individualproducers
332, we consider that Canada in essence asks us to extrapolate from its information that, in fact,
no individual producer with costs exceeding CEM return s, sells milk into the CEM market.  However,
in asking the Panel to assume that only the more efficient producers participate in CEM sales, Canada,
it would seem to us, is calling for an assumption that would obviate any examination pursuant to the
Appellate Body's benchmark of whether sales below the average total cost of production are being
made.  We note, however, that the Appellate Body clearly did not exclude the possibility that a producer
with total costs of production in excess of CEM retu rns, might make CEM sales, stating that "[t]o the
extent that the producer charges prices that do not recoup the total cost of production, over time, it
sustains a loss which must be financed from some other source, possibly 'by virtue of governmental
action'."333
5.64 Having carefully considered Canada's case for focusing on the individual producer in applying
the cost of production benchmark, the Panel finds  that Canada has neither sought to correlate its data on
costs of production of individual producers with any information on participation in the CEM market,
nor with that on the returns they might obtain in this market.  While speaking of the costs to individual
producers, not industry-wide average costs, Canada has only provided the Panel with average costs,
albeit averages within ten groupings of producers.  The Panel finds , moreover, that Canada has not
presented any data - indeed, admits it has no data – on the basis of which the Panel could exclude thatthe 23 per cent of producers with costs of production in excess of the CEM price participate in the CEM
market.
5.65 Accordingly, the Panel finds  that Canada has not been able to demonstrate, pursuant to its
proposed reliance on an individual average as the re levant total average cost of production benchmark,
that no payments, within the meaning of Article 9.1(c), are being made.
5.66 We recall that at least one of Canada's rationales for having the Panel focus on the costs of
individual producers rather than industry-wide averages is the wide variation in the cost-of-production
efficiency of dairy farmers in Canada.
334  In pursuit of this factual claim, Canada has presented evidence
that merely confirms what Canada initially posited, i.e., that some farmers indeed have costs of
production below CEM returns, while others do not.  In our view, Canada's approach raises the two
following additional problems.
5.67 First, we consider that Canada's proposed focus on the cost of production of individual
producers would require a government to have access to, and make available, information on the cost of
production of each producer and on whether or not the individual producer participates in the CEM
market.  It seems to us that only on rare occasion would a government have record-keeping of this
magnitude.  Quite apart from the administrative cost and unworkability of this approach, we note that
even Canada has expressed doubts that the Appellate Body could have intended a benchmark for
                                                     
331 In this regard, we note that industrial milk production has exceeded Canadian requirements, defined as "domestic
consumer demand and planned exports for industrial dairy products", both before and after the introduction of the CEMmarket.  Canada's Exhibit CDA-27, reproducing CDC Annual Report 2000-2001, pages 13-14.  We further note that as part ofits claimed implementation of the recommendations in the original Canada – Dairy  case, Canada asserts it has restricted its
export subsidies to the quantity commitment levels for subsidized exports as set out in its Schedule.  Para. 2.2 above.
332 See paras. 5.36-5.37 above.
333 Appellate Body Report, Canada – Dairy (Article 21.5 – New Zealand and US), para. 87.
334 Para. 3.59 above.WT/DS103/RW2
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determining the existence of payments that entails a standard of proof akin to the "beyond a reasonable
doubt" standard under criminal law.335
5.68 Second, the extensive amount of information required under Canada's proposed approach would
make it very difficult for WTO Members to ensure that they are respecting their obligations under theAgreement on Agriculture  in exercising their rights thereunder to grant domestic and export subsidies.
In view of the unworkability of Canada's approa ch, such a Member whose exports also exceed its
reduction commitment levels would have great difficulty in establishing that such exports have not
benefited from export subsidies.
5.69 We recall that Canada has criticized the Complainants' proposed reliance on an industry-wide
average for the cost of production benchmark, arguing that it would be very difficult for any
government under an industry-wide application of the benchmark to monitor and notify its exportsubsidies, as costs of production within an industry may change from year to year.
336  While this may
indeed be the case, the Panel considers that monitoring and notification would be even more difficult
under Canada's proposed application of the benchmark.
5.70 Nevertheless, we do see some merit in a number of the criticisms Canada expresses in relation
to an industry-wide average of cost of production as the relevant benchmark.  Specifically, we note
Canada's argument that producers who can participate profitably in the CEM market may be deemed to
confer payments if the industry-wide average cost of production exceeds CEM prices.337  In our view, in
a market exhibiting great variation in production effi ciency, the application of an industry-wide cost of
production benchmark could result in producers being deemed to make payments even where not one
producer with costs above the industry-wide average would be selling into the export market.  Inaddition to not telling us much – if anything – about whether or not payments to dairy processors are in
fact being made, it would be odd, in the Panel's view, if an interpretation of the Agreement on
Agriculture  should result in discouraging exports by efficient farmers, and yet this is what this industry-
wide average cost of production be nchmark would seem to entail.
5.71 Despite the merits of these critiques, however, the Panel rejects Canada's criticism that reliance
on the CDC data would amount to reintroducing the regulated domestic price as the relevant
benchmark.
338  The Complainants' proposed reliance on the data collected pursuant to the CDC
Guidelines is grounded in their argument, in which we concur, that this data represents a reasonably
accurate and objective measure of costs of production of Canadian dairy producers.  We agree with the
Complainants that the fact that Canada uses this data to set the in-quota  price in pursuit of social and
economic objectives does not detract from the validity of the data because such objectives may become
relevant in setting the in-quota price but not in calculating costs.
5.72 Moreover, we also disagree with Canada that we would in essence be reintroducing the
domestic in-quota price as the relevant benchmark because it seems to us that a more accurate reflection
of the average total cost of production of all of the Canadian dairy industry, i.e., one that also includes
cost data from the 30 per cent least efficient farmers, as well as the small producers, would at any rate
be substantially higher than the CDC cost figures and the domestic in-quota price.
                                                     
335 Canada's Comments on the Responses of New Zealand and the United States, para. 56.
336 See para. 5.39 above.
337 We recall in this connection the exposition of Canada's argument at para. 5.38 above.
338 We recall, in this regard, that Canada does not contest the accuracy of the underlying CDC data.WT/DS103/RW2
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5.73 In this connection, we take note of the CDC cost of production data, as provided by the
Complainants,  showing that the average cost of production of the Canadian dairy industry was
CDN $57.27 in 2000 and estimated to be CDN $58.12 in 2001.339
5.74 The Panel notes that the Parties agree that the average CEM price in 2001 was approximately
CDN $31.50340 and in 2000 was approximately CDN $29.341  With the average cost of production, as
reflected in the CDC survey data, exceeding the average CEM price by a factor of almost two, we
consider that this constitutes a strong indication that, on average, payments are being made.342
(viii) Canada's proposed exclusion of certain cost elements
5.75 The parties, however, disagree as to the cost elements to be included in the calculation of the
average total cost of production.  Accordingly, it is necessary for us to examine whether Canada
convincingly shows that certain elements for whic h the CDC Guidelines make allocation, should not be
included in the calculation of average total cost of production in this case.
5.76 Canada argues that only actual costs, and not imputed costs, should be included in the cost
calculation.343  It proposes an interpretation of the term "costs" as being limited to cash outlays.344
Canada therefore seeks to adjust the CDC survey data by excluding from such calculation the costs offamily labour, return to management and return to equity.
345  Canada also posits that the cost calculation
should be limited to production costs only, to the exclusion of production quota, marketing, transport
and certain administrative costs.346
5.77 In arguing that the cost calculation should also exclude profits347, Canada refers the Panel to a
statement by the Appellate Body to the effect that "an economic operator chooses to invest, produce and
sell, not only to recover the total cost of production, but also in the hope of making profits".348
According to Canada's view, the A ppellate Body draws a clear distinc tion between costs to be recouped,
on the one hand, and hoped for profits on the other.349  Canada in this context argues that family labour
and return to equity are not costs to an enterprise but rather profits, and thus should not be included in
calculating the cost of production.350
5.78 Canada also submits, in responding to the Complainants' proposed inclusion of the cost of
quota, which we note is not accounted for under the CDC Guidelines, that quota should not be viewed
as a restriction on production but rather as an entitlement to sell.351  Canada further argues that the cost
of quota is to be recouped in a different market, namely, the domestic market.352  In support of its
position, Canada points to GAAP that "do not require" the amortization of intangible assets with an
                                                     
339 Para. 3.53 above.
340 Canada's Response to Question Nos. 61-62.  New Zealand's Response to Question No. 62 and United States'
Response to Question No. 62.
341 Para. 3.53 above and Canada's Response to Question No. 62.
342 The Panel notes that the data submitted by the various parties on costs of production and CEM prices are
comparable with respect to the inclusion of transport, administrative and marketing fees.  Canada's Exhibits CDA-11, CDA-12and CDA-13;  New Zealand's First Submission, para. 5.29;  United States' First Submission, para. 29.
343 Paras. 3.37 – 3.38 above.
344 Para. 3.27 above.
345 Paras. 3.28 – 3.40 above.
346 Paras. 3.44 and 3.50-3.51 above.
347 Paras. 3.39 – 3.40 above.
348 Appellate Body Report, Canada – Dairy (Article 21.5 – New Zealand and US) , para. 95.
349 Paras. 3.39 – 3.40 above.
350 Ibid.
351 Para. 3.44 above.
352 Ibid.WT/DS103/RW2
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indefinite useful life353, which, in Canada's view, includes production quota.  According to Canada, only
the impairment in the value of the quota in a given year , if any, as compared to that in a prior year, is to
be included as a cost element.354
5.79 As for the exclusion of marketing, transport and certain administrative costs, Canada argues
that these are costs arising in connection with sales , not production, which occur beyond the farm
gate.355
(ix) Panel's analysis of cost elements to be included/excluded
5.80 The Panel, in examining which cost elements should be included, recalls the Appellate Body
guidance that all fixed and variable costs should be included356, thus suggesting that there is no reason a
priori  to use only cash-based accounting methods.  The Panel also takes note of the observation by the
Appellate Body that the production of goods and services involves an investment of economicresources.
357  We therefore consider that we must first determine the ordinary meaning of the words
"cost" and "investment" in accordance with Article 3.2 of the DSU and Article 31 of the Vienna
Convention on the Law of Treaties ("Vienna Convention") .  The word "cost" is defined as an
"[e]xpenditure of time or labour; what is borne, lost, or suffered in accomplishing or gaining something
… ".358  The word "investment" is defined as "… inve sting of money (now also time or effort)…".359
Having thus examined the ordinary meaning of the words "costs" and "investment", we do not see any
basis that would require us to exclude non-monetary costs ab initio .
5.81 Mindful of the argument of Canada, inviting us to have recourse to GAAP in interpreting the
meaning to be given to the term "cost of production", we first note that the CDC Guidelines themselves
state that they are based on GAAP.360  Second, we consider it useful to turn to the Anti-Dumping
Agreement  for contextual guidance, in line with Article 31 of the Vienna Convention  and Article 3.2 of
the DSU .  Specifically, we turn to such contextual guid ance to discern the relative weight to be given to
GAAP in the proper calculation of cost s of production.  Article 2.2.1.1 of the Anti-Dumping Agreement
tells us to calculate costs based upon "records kept by … the producer, provided that such records are in
accordance with ge nerally accepted accounting principles of the exporting country and reasonably
reflect the costs associated with the production and sale of the product … [and] provided that such
allocations have been historically utilized  by … the producer … ." (emphasis added)
5.82 Since Article 2.2.1.1 of the Anti-Dumping Agreement  instructs that production costs are to be
calculated using the allocations historically utilized so long as doing so is in accordance with GAAP,
and since the CDC Guidelines purport to be in accordance with GAAP, we see no reason why family
labour, return to management and return to equity should not be included in the definition of the cost of
production in the present case.
5.83 In this context, the Panel notes the inconsistency between Canada's compensating producers for
the elements of family labour, return to manageme nt and return to equity, in the domestic market, as
borne out by the CDC Guidelines, while proposing to exclude these " historically utilized " allocations in
applying the Appellate Body's cost of production be nchmark.  Similarly, we note the inconsistency of
                                                     
353 Para. 3.44 above.
354 Ibid.
355 Paras. 3.50-3.51 above.  Canada also proposes subtracting such costs to obtain the net CEM return.
356 See para. 5.45 above.
357 See para. 5.43 above.
358 The New Shorter Oxford English Dictionary , L. Brown (ed.) (Clarendon Press, 1993), Vol. I.
359 Ibid.
360 New Zealand's Exhibit NZ – 4 and United States' Exhibit US – 22 reproducing CDC Guidelines.WT/DS103/RW2
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Canada's including marketing, transport and administrative expenses as costs when setting the domestic
target price, while arguing for their exclusion in the calculation of the overall cost of production.
5.84 On whether or not to include the cost of obtaining quota in calculating the overall cost of
production, we agree with the Complainants' explanation that this cost represents a real cost – even acash outlay – that a producer will incur in the production of milk, regardless of which market the
producer recoups that cost in.  In our understanding, the GAAP, while possibly not requiring the
amortization of quota, do not exclude such amortizati on.  Since the Appellate Body, in referring to the
total cost of production as including all fixed and variable costs, appears to have endorsed a broad
interpretation of the term "cost", we doubt that quota should be excluded from such calculation.
5.85  Having examined what elements to include in the overall cost of production calculation, the
Panel finds  that Canada has not demonstrated why family labour, return to management, return to
equity, quota and transport, marketing and administ rative costs should not be included as costs of
production and that, as a corollary, those deductions need to be made to the CDC survey data.  In sum,
we agree with the Complainants that the elements here mentioned are real costs to the producer who, if
not able to recoup them, incurs losses and cannot stay in business over time.  The Panel accordingly
finds  that the CDC data represent a sufficient, albeit conservative, approximation of the average total
cost of production of the Canadian dairy industry.  If  anything, additions reflecting the cost of quota, not
deductions, should be made to the cost elements reflected in the CDC survey data.
(c) Conclusion on the issue of " payments "
5.86 The Panel recalls its finding at paragraph 5.34 above that the Complainants have presented a
prima facie  case that payments are being made.
5.87 The Panel also recalls its finding at paragraphs 5.64-5.65 above that Canada's proposed
approach focused on the costs of production of individual producers, but absent any data reflecting
individual producers' costs, their participation or their returns in the CEM market, fails to demonstrate
that no payments are being made, within the meaning of Article 9.1(c).
5.88 The Panel further recalls its finding at paragraph 5.85 above to the effect that Canada has not
demonstrated why family labour, return to management, return to equity, quota and transport, marketing
and administrative costs should not be included as costs of production.
5.89 In light of the Complainants prima facie  case as to the existence of payments and Canada's
failure to establish, pursuant to Article 10.3, that no payments are being made, the Panel finds  that
"payments" within the meaning of Article 9.1(c) of the Agreement on Agriculture  are being made.
5.90 The Panel notes that we have made findings of the existence of "payments" based on both the
Complainants' and Canada's interpretation of how to apply the Appellate Body's benchmark, thusmaking it unnecessary to decide in this case  which of these two interpretations is the correct one.
3. Whether payments are "financed by virtue of  governmental action"
(a) Basis for Panel's renewed examination of whether payments are "financed by virtue of
governmental action"
5.91 The Panel notes that while the Appellate Body re versed the Panel's finding as to the appropriate
benchmark for determining the existence of "payment s" under the first element of Article 9.1(c), it
neither made a finding as to whether or not payments exist in the current case nor any findings withWT/DS103/RW2
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respect to the issue of "financ[ing] by virtue of governmental action".361  Nevertheless, the Appellate
Body, as dicta , provided certain indications as to the nature of the governmental action required and as
to the causal link to the financing of payments.
5.92 Specifically, the Appellate Body opined that the presence of a " demonstrable link " between the
governmental action and the financing of the payments is necessary to a showing that payments are
financed "by virtue of"  governmental action.362  The Appellate Body equated this "demonstrable link"
with a situation where there is a " tighter nexus " between the governmental action and the financing of
payments than in a situation where there is a regulatory framework merely enabling a third person
freely to make and finance payments.363
5.93 Thus, we deem it necessary to revisit, with th e benefit of the Appellate Body's guidance, the
issue of whether payments are "financed by virtue of governmental action".
5.94 At this stage, the Panel recalls its analysis in paragraphs 5.18-5.19 and 5.25 above as to the
operational interpretation of Article 10.3.  We shall therefore first examine whether the Complainants
make a prima facie  showing of a demonstrable link between governmental action and the financing of
payments.  Provided that the Complainants make such a prima facie  case, it will then be for Canada to
establish, pursuant to Article 10.3, that any payments are not "financed by virtue of governmentalaction" within the meaning of Article 9.1(c).
(b) Whether the Complainants make a prima facie  case
5.95 The Complainants allege that, because a producer supplies CEM at a price which does not
cover average production costs, i.e., makes a payment, and because the milk thus sold must be exported
pursuant to government mandate, Canada's CEM market cannot be described as a deregulated one inwhich private individuals freely make and accept payments.
364  Specifically, they argue that the
prohibition on selling non-quota milk at the higher domestic in-quota price and on diverting CEM back
into the domestic market, together with the exempti on of the dairy processors from paying this higher
price for CEM, constitute the governmental action by virtue of which payments are financed.365
5.96 The Complainants also argue that the Panel should focus its examination on the recipient of the
subsidy (here, the processor), not on the provider thereof (the dairy producer).366  In this context, the
Complainants observe that under the CEM scheme, it is ensured that whenever producers make a sale
they will also be making a payment.367  Arguing that the issue of why producers choose to produce milk
for the CEM market is irrelevant, the Complainants contend that what matters is that the choice of
where to sell non-quota milk, once produced, is essentially a government-mandated choice.368  The only
other "options", in their view, are to destroy the milk  or to sell it in the much less attractive market for
animal feed.369  Moreover, New Zealand points out, the cross-subsidization resulting from sales at the
higher administered domestic price may make it rational for a producer to produce CEM.370
5.97 The Complainants assert that the exemption fr om the higher domestic regulated price is not
necessary to Canada's supply management scheme because the Government need not enable processors
                                                     
361 Appellate Body Report, Canada – Dairy (Article 21.5 – New Zealand and US) , paras. 104; 105 and 118.
362 Ibid., para. 113.
363 Ibid., para. 115
364 See paras. 3.94, 3.96 and 3.120 above.
365 Para. 3.96 above.
366 Para. 3.114 above.
367 Para. 3.120 above.
368 Paras. 3.117 – 3.119 and 3.121 above.
369 New Zealand's First Submission, para. 5.38, United States' First Submission, para. 44.
370 Para. 3.118 above.WT/DS103/RW2
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to obtain milk below production cost.371  Only the prohibition on diversion of non-quota milk back into
the domestic regulated market, and not the exemption of processors from paying the higher domestic
price, they argue, may be a significant element in Canada's price support scheme.372  Canada's scheme,
they argue, functions as a deliberate export subsidy, in the absence of which Canada would not be ableto export dairy products.
373
5.98 Recalling our statement in paragraph 5.94 above, the Panel finds  that the Complainants' case, as
described in paragraphs 5.95-5.97 above, provides a prima facie  showing that payments are being
"financed by virtue of governmental action", such that Canada can reasonably attempt to discharge its
burden under Article 10.3 of demonstrating why CEM sales are not being financed by virtue of
governmental action.  We shall therefore turn to an examination of Canada's case on this issue.
(c) Examination of Canada's case on "financed by virtue of governmental action"
(i) Canada's position regarding the lack of gover nmental involvement in the export market
5.99 In recalling a statement of the Appellate Body, to the effect that the causal link would be more
difficult to establish when a payment-in-kind is made by an independent economic operator, Canada
argues that, on the facts of this case, the Appellate Body standard calls for a "particularly clear and
convincing showing of the required linkage".374  Canada then argues that, in the context of the
deregulated CEM market, the combination of the prohibition on selling non-quota milk on the domestic
regulated market and the exemption of processors from paying the higher regulated domestic price is
insufficient to meet the "rigorous sta ndard" put forward by the Appellate Body.375 Specifically, Canada
argues that the exemption of the processors from paying the higher domestic price does not ensure
processors' access to milk for export at any particular price and that there is thus no tight nexus betweenthe financing of payments and governmental action.
376
5.100  Referring to the Appellate Body's distinction between a regulatory framework merely enabling
a third person freely to make and accept payments and one for which a tight nexus between
governmental action and financing of payments is present, Canada describes its "deregulated" export
market as one in which private economic operators engage in transactions at arms length and on apurely commercial basis.
377
5.101  Moreover, Canada maintains that the Complainants' argument to the effect that access to CEM
without having to pay the domestic administered price equals financing, fails to give meaning to the
word "financed".378  The mere fact that processors have access to CEM without paying the domestic
administered price and that there are no limits placed on their ability to export is not per se  WTO-
inconsistent, according to Canada.379
5.102  Canada contends that the Government is not involved in the decision to sell non-quota milk as
CEM milk because, "for Article 9.1(c) to apply there must be governmental action focussed or directed
towards the financing of the alleged 'payment'".380  Canada then gives examples of what type of
governmental action it considers would satisfy the test established by the Appellate Body, namely,
                                                     
371 Paras. 3.101 and 3.115 above.
372 Paras. 3.107, 3.101 and 3.115 above.
373 Para. 3.107 above.
374 Para. 3.95 above.
375 Ibid.
376 Para. 3.116 above.
377 See paras. 3.97; 3.104; 3.108-3.109 and 3.113 above.
378 Para. 3.97 above.
379 Para. 3.116 above.
380 Para. 3.103 above.WT/DS103/RW2
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setting prices, controlling volume or managing producer returns.381  In addition, Canada asserts that if
there was governmental action "obliging or driving"  producers to produce CEM, the demonstrable link
would be present.382
5.103  Canada also contends that to focus on the processor, as the Complainants argue, confuses the
concept of "financed by virtue of governmental action" with the concept of "benefit".383  In its view, the
issue is whether the alleged payments by independent producers are financed by virtue of governmental
action.384
5.104  Canada maintains, in addition, that under the Agreement on Agriculture , WTO Members may
provide domestic support to agricultural producers and that the prohibition on diversion of non-quota
milk into the domestic market in Canada is necessa ry to protect the producers' entitlement to the higher
domestic support price.385
5.105  In invoking the SCM Agreement  and the case on US – Export Restraints as important contextual
guidance, Canada argues that Article 9.1(c) of the Agreement on Agriculture  should be construed in
accordance with Article 1.1(a)(1) of the SCM Agreement , and specifically Article 1.1(a)(1)(iv), pursuant
to which "a government entrusts  or directs  a private body to carry out … functions … which would
normally be vested in government … ", such as making direct transfers of funds, forgoing revenue orproviding goods and services.
386
(ii) Appellate Body guidance on "financing by virtue of governmental action"
5.106  Before embarking on a detailed examination of Canada's case regarding "financed by virtue of
governmental action", we consider that we should first review the  guidance by the Appellate Body  on
this subject.  The Appellate Body observed that the text of Article 9.1(c) does not qualify the relevanttypes of governmental action, but includes governme ntal action "regulating the supply and price of milk
in the domestic market".
387  While stating that "mere governmental action" is not enough for there to be
export subsidies, it opined that the presence of a "demonstrable link" between the governmental action
and the financing of the payments means that payments are financed " by virtue of ".388
5.107  The Appellate Body did not exclude that "payments may be financed by virtue of governmental
action even though significant aspects of the financing might not involve government".389  At the same
time, the Appellate Body was careful to distinguish a "regulatory framework merely enabling a third
person freely to make and finance 'payments' [for which] … the link between the governmental action
and the financing of the payments is too tenuous" from a situation where there is "a tighter nexus
between the mechanism or process by which the payments are financed , even if by a third person, and
governmental action".390
5.108  Similarly, the Appellate Body distinguished a situation where a payment occurs  as a
consequence of governmental action from the situation where a payment is financed  as a consequence
                                                     
381 Para. 3.103 above.
382 Ibid.
383 Canada's Oral Statement, para. 56.
384 Canada's Executive Summary, para. 27.
385 At an early stage in the proceedings, Canada also argued that the exemption of the processors from paying the
higher domestic price was also necessary to the domestic price s upport system.  Canada's Submission. para. 66.  However,
Canada later admitted that this exemption was not necessa ry to this price support system.  Para 3.116 above.
386 Paras. 3.147 - 3.148 above.
387 Appellate Body Report, Canada – Dairy (Article 21.5 – New Zealand and US) , para. 112.
388 Ibid., para. 113.
389 Ibid., para. 114.
390 Ibid., para. 115.WT/DS103/RW2
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of governmental action and for which a demonstrable link is thus present.391  In the former situation, no
such demonstrable link is present, according to th e Appellate Body, "because the word 'financed', in
Article 9.1(c), must also be given meaning".392
5.109  The Panel recalls that the Appellate Body noted that "[a]lthough the Panel addressed this issue
in different ways, … the Panel's reasoning, taken as a whole, was directed towards establishing the
demonstrable link between governmental action and the financing of the payments."393  A t  t h e  s a m e
time, however, the Appellate Body "disagree[d] with the Panel's characterization of the measure as
'obliging producers, at least  de facto ,  to sell outside-quota milk for export'."394  The Appellate Body
also noted that it did "not see how producers are oblig ed or driven to produce additional milk for export
sale."395
(iii) Panel's examination of "financed by virtue of governmental action" in light of the Appellate
Body guidance
5.110  The Panel recalls that in the first Article 21.5 compliance case, for the purpose of determining
the link between governmental action and the fina ncing of payments, that panel focused on the
prohibition against selling non-quota milk at the domestic in-quota price and the anti-diversion
measures, as a result of which CEM, by definition exempt from the domestic pricing regulations, wasleft as the only viable option to transact outside the regulatory framework of price floors and quota
ceilings.
396  In this earlier case, the panel spoke in terms of governmental action being "indispensable"
to the financing of payments, in other  words "establish[ing] the conditions which ensure that the
payment takes place."397  The panel also there found that in order to meet the "by virtue of" test in
Article 9.1(c), it would have to find that financ ing does not occur "but for" governmental action.398
5.111  In light of the fact that there has not been an y change in the nature or the regulation of the
Canadian dairy markets since the first Article  21.5 panel examined this matter, and in light of the
Appellate Body's apparent support for the reasoning employed by the first Article 21.5 panel399, this
Panel considers that it should initially focus on the same elements of governmental action as in the
previous case, but applying a new test directed at determining whether governmental action isdemonstrably linked to the financing of payments.  In proceeding with our analysis, we are mindful of
the distinction, rightly emphasized by the Appella te Body, between a situation where a payment is
merely incidental to governmental action, and one where there is a tighter nexus between the
governmental action and the effecting of a transfer of economic resources.
400
5.112  The Panel recalls that under the previous supply management system, the Canadian government
regulated price and marketing for all categories of milk.401 Under Canada's implementation measures,
the Canadian Government no longer negotiates or sets a price for its new category of export milk, calledCEM, but still maintains a target price for domestic milk under quota, as well as for another new,
domestic market category of milk, Class 4(m), used as animal feed.
402  Processors are exempt, by law,
                                                     
391 Appellate Body Report, Canada – Dairy (Article 21.5 – New Zealand and US) , para. 113.
392 Ibid.
393 Ibid., para. 116.
394 Ibid., para. 117.
395 Ibid.
396 Panel Report, Canada – Dairy (Article 21.5 – New Zealand and US) , paras. 6.77 and 6.78.
397 Ibid., paras. 6.38, 6.40 and 6.44.
398 Ibid., para. 6.41.
399 Appellate Body Report, Canada – Dairy (Article 21.5 – New Zealand and US) , para. 116.
400 We recall in this connection the statement in the Appellate Body Report, Canada – Dairy (Article 21.5 – New
Zealand and US, para. 115) .
401 Para. 2.1 above.
402 Ibid.WT/DS103/RW2
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from paying the higher in-quota price.403  Producers pre-commit to sell any quantity of non-quota milk
as CEM and once pre-committed, such milk must be "first-out-of-the-tank", and may not be diverted
back into the domestic market.404  Processors must account for the destination of all milk contracted as
CEM milk and diversion into the domestic market is subject to financial and other penalties.405  A s
under the previous system, Canada places no restrictions on the quantity of milk that may be sold into
the export market.406
5.113  In relation to Canada's argument that the prohibition on diversion is necessary to the protection
of the producer's entitlement to the higher in-quota  price, we have doubts that, even assuming a
measure may be necessary to a particular supply management system of a WTO Member, such
"necessity" can be equated with WTO consistency.  Moreover, we have doubts that the exemption of
processors from paying the higher domestic in-quota price for CEM, either on its own or together withthe prohibition on diversion, is necessary to the protection of the producer's entitlement to that higher
price.  Indeed, Canada has admitted that this exemption is not necessary to protect the producer's
entitlement.
407
5.114  Looking at the implementation measures in dispute, the Panel notes that the parties have
presented arguments on the nexus, or lack thereof, both from the perspective of the processor and fromthat of the producer.  We will begin our examination by considering this matter from the perspective of
the processor.
5.115  Looking from the perspective of the dairy processor , it is clear that the exemption of processors
from paying the higher domestic in-quota  price is demonstrably linked to exports of dairy products
made with Canadian produced milk because if processors had to pay the in-quota  price for CEM,
exports of CEM would most likely dry up.  As the record undisputedly confirms, the domestic regulated
price is well above the world market price for milk.
408  With milk being a principal ingredient of
processed dairy products, Canadian processed dairy products using milk at the in-quota price could not
be competitive on world markets.  Indeed, we recall Canada's concurring statement to the effect that the
exemption was adopted in order to allow for the functioning of a deregulated CEM market.409
5.116  Moreover, we consider that a rational, profit-maximizing processor, exempt by law from paying
the in-quota  price for CEM, will seek to transact for CEM at the lowest possible price.  Because the
processor has a legal right not to pay the in-quota  price, ranging from approximately CDN $50 to
CDN $56410, a rational, profit-seeking processor, in our view , will be in a strong position to transact for
CEM at a price below the domestic administered price, and thus, below the average total cost of
production of Canadian dairy producers.  Moreover, we consider that the unattractiveness of the other
marketing option for non-quota milk, i.e., Class 4(m) milk, would put processors in a position to drivedown the price of CEM still further.  Finally, to  the extent that milk sourced through IREP is
substitutable and competitive with CEM, this would be  yet another factor enabling processors to offer to
                                                     
403 Paras. 3.99 and 3.116 above.
404 Para. 2.3 above.
405 Para. 2.2 above.
406 Para. 2.2 above.
407 Para. 3.116 above.
408 We recall that the domestic in-quota price in the previous pro ceedings was shown to range from CDN $50 to
CDN $ 56.  Panel Report, Canada – Dairy (Article 21.5 – New Zealand and US) , para 6.10.
409 Canada's Response to Question No. 14.
410 Panel Report, Canada – Dairy (Article 21.5 – New Zealand and US) , para. 6.10.  In that report, New Zealand
submitted that domestic market milk in the various classes sells for between CDN $49.48 and CDN $56.06 while the UnitedStates gave an average of CDN $52.92 per hectolitre.  Canada did not contest these figures.WT/DS103/RW2
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transact for CEM at prices even below those for IREP-sourced milk. In this connection, we observe that
the prices for CEM are on average lower than those for IREP-sourced milk.411
5.117  By virtue of the prohibition on diversion of CEM back into the domestic market, coupled with
penalties, we consider that the Canadian government not only prevents the processor from seeking thehighest return available for milk in the domestic market, but also ensures that the only option for a dairy
processor producing a particular dairy product and wishing to sell beyond the amount manufactured
through the supply of quota milk, is to produce for the export market.
5.118  Looking now from the perspective of the dairy producer , we note that the earlier Article 21.5
panel focused its inquiry primarily on the governmental action linked to the  sales  of CEM, not to the
decision by the producer whether or not to produce  milk for sale as CEM, and made findings only with
respect to the link between governmental action and the decision to sell. 
412
5.119  We recall in this connection that Canada stresses that there is no governmental action obliging
or driving producers to produce milk for the CEM market, invoking a statement by the Appellate Body
to the same effect.413  We also recall the Complainants' argument that the reason for why producers
decide to produce milk for the CEM market is irrelevant, given that the Government does not provide
any real choice as to where producers may sell non-quota milk once produced.414
5.120  From an economic perspective, it is clear to us that no meaningful distinction can be made
between a producer's decision to produce  non-quota milk and the decision where to sell that milk.
These two decisions are in fact part and parcel of one integrated decision by any rational economic
operator.  Clearly, the decision to produce will be taken in light of the producer's costs and the sales
options available, such that a producer will decide to produce only if in doing so that producer will beable to make profits or, at least, avoid making losse s.  In this sense, we agree with the Complainants
that it may not be relevant to focus on the reasons why a producer may decide to produce.  We consider
that the question of whether governmental action "drives" producers to produce only becomes relevant
where making sales would result in losses.
5.121  The Panel sees support for the above position in the Appellate Body's statement that
governmental action can include "regulating the supply and price of milk in the domestic market"
415,
and that "the existence of a demonstrable link [has to take account] of the particular governmental
action … and its effects on payments made by a third person".416  In this sense, all that is required is that
there be governmental action, such as that regula ting the supply and price of milk in the domestic
market, the effect of which is that producers make payments to dairy processors.  Thus, if governmental
action makes possible sales into the CEM market which would otherwise be made at a loss, i.e., not
allowing for recovery of fixed and variable costs, we consider, in line with the Appellate Body'sstatement, that there would then be a demonstrable link between governmental action and the financing
of payments.
5.122  In respect of the case before us, the record confirms Canada's regulation of both the domestic
in-quota price and volume of milk, as well as the prices for Class 5(d)  and Class 4(m) milk.
417  As we
                                                     
411 We note that the price for IREP whole-milk powder is around CDN $32.45 per hectolitre, whereas the unweighted
CEM price is around CDN $29 per hectolitre.  cf. paras. 3.53, 3.54, 3.67, 3.74, 3.75 and footnotes 83 and 166 above.
412 Panel Report, Canada – Dairy (Article 21.5 – New Zealand and US) , paras. 6.43-6.48 and 6.77.
413 Para. 3.112 above.
414 Paras. 3.121 – 3.122 above.
415 Appellate Body Report, Canada – Dairy (Article 21.5 – New Zealand and US) , para. 112.
416 Ibid., para. 115.
417 Para. 2.2 above.WT/DS103/RW2
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understand it, the only sales option available to milk producers, not directly regulated by Canada, is that
of the CEM market.
5.123  Due to the prohibition on selling non-quota milk at the in-quota price on the domestic market,
the Canadian Government has foreclosed what would otherwise be the first-best option available todairy producers, that of selling milk at the higher in-quota administered price.  As a result of this
prohibition, the only remaining options available are to produce and sell milk as CEM or as Class 4(m)
animal feed, the latter yielding much lower returns. We note that the price of Class 4(m) animal feed is
set by the Canadian Government at around CDN $10 per hectolitre.
418
5.124  In our view, given the rational, profit-seeking motivations of private economic operators, and
the regulation of the price for Class 4(m) by Canada, the Canadian Government ensures that the bulk of
non-quota milk will be channelled into the CEM market;  only a small fraction of non-quota milk – thatwhich has not previously been pre-committed – will likely be sold as Class 4(m) animal feed.
5.125  In our assessment, the rational, profit-maximizing milk producer, in deciding whether to
participate in the CEM market, will take into account the extent to which the income derived from
selling milk at the in-quota price allows that producer to sell into the CEM market while at least
recovering his or her marginal costs for that additional production.  To the extent that the governmentalsupport price for in-quota milk enables producers to cover their fixed and variable costs through
production for sales at the in-quota price and make additional sales into the CEM market at marginal
cost, we consider that a strong nexus exists.
5.126  With reference to the case before us, we recall Canada's acknowledgement that, pursuant to its
proposed method for calculating average total cost of production, approximately 23 per cent of milkproducers would be unable to cover their fi xed and variable costs in the CEM market.
419  We further
recall that, in this connection, Canada's proposed method would exclude imputed costs of family labour,
return to management, return to equity and production quota, as well as transport, marketing and
administrative costs.420  Nevertheless, we also recall that, in our view, all these costs are properly to be
included in a calculation of the average total cost of production.421
5.127  If account is taken of these costs, it appears that, absent governmental support through the in-
quota price, the percentage of Canadian dairy produc ers who would be unable to cover their fixed and
variable costs through sales into the CEM market would be much higher than the 23 per cent posited by
Canada.  Indeed, as recalculated by New Zealand, and absent the Canadian support price for in-quota
milk, fully 100 per cent of Canadian dairy producers would not be able to cover their fixed and variable
                                                     
418 Panel Report, Canada – Dairy (Article 21.5 – New Zealand and US) , para. 6.52.
419 Paras. 3.66 and 3.70 above.
420 See para. 5.76 above.
421 See para. 5.85 above.WT/DS103/RW2
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costs in the CEM market.422  Thus, in the circumstances of this case, the Panel considers that
governmental action in the form of regulating the supply and price of in-quota milk produces significant
effects on payments made by third persons, in that this governmental action cross-subsidizes many sales
that otherwise would not be made or would at least constitute sales at a loss.
5.128  In addition, we recall that the support price for in-quota milk is set in accordance with the CDC
Guidelines at a level that rewards only the 70 per cent more efficient dairy farmers.423  The Panel notes
that other sources of information from the Canadi an news media, put forward by the Complainants,
suggest that a substantially smaller percentage, between 25 and 39 per cent, of dairy farmers cover their
costs under the in-quota  price set in accordance with the CDC Guidelines.424  In these circumstances,
the Panel considers it likely that for a significant percentage of Canadian dairy farmers who are just
barely able to cover both their fixed and variable production costs through in-quota domestic sales, thelevel of the in-quota price creates a strong inducement – to the extent these farmers can cover their
marginal costs – to produce additional milk for sale into the CEM market.
5.129  Even though we consider that the governmental action of regulating the supply and price of
milk in the domestic market produces effects on and is demonstrably linked to the financing of
payments by producers, our analysis here should not be read to suggest that Article 9.1(c) requires thatthe governmental action directly  finance payments made by independent economic operators.  On the
contrary, the Panel considers that the ordinary meaning of Article 9.1(c), and in particular the phrase "
… whether or not a charge on the public account is involved … ", makes clear that governmental action
need not directly finance payments.  This reading has been expressly endorsed by the Appellate
Body.
425
5.130  In addition to the impact of cross-subsidization on the financing of payments by third parties,
we also consider that the regulatory policy of "pre-commitment" may also have a similar impact.  In our
view, a rational, profit-maximizing producer who has purchased an entitlement to sell at the high in-
quota price will clearly want to fill the amount of qu ota he or she holds and will therefore be likely to
err on the side of slight overproduction426, thus ensuring full use of the entitlement.  The rational
                                                     
422 New Zealand's Response to Question No. 33
A.  Deciles of costs
of productionB.  Estimated imputed
and marketing costsC.  Total costs of
productionPercentage of
producersCumulative
percentage of
producers
From CDA-9
CDN $ /hlNZ rebuttal submission
footnote 59
CDN $ /hlC.=A.+B.
CDN $ /hl%%
41.55-66.80 26 67.55-92.80 10 100
37.77-41.41 26 63.77-67.41 10 90
35.32-37.43 26 61.32-63.43 10 8033.36-35.25 26 59.36-61.25 10 7031.74-33.35 26 57.74-59.35 10 60
29.40-31.72 26 55.40-57.72 10 50
27.05-29.33 26 53.05-55.33 10 4024.84-26.96 26 50.84-52.96 10 3022.37-24.71 26 48.37-50.71 10 20
7.01-22.07 26 33.01-48.07 10 10
423 Para. 3.23 above.
424 New Zealand's Exhibit NZ-7, citing press releases from the Dairy Farmers of Canada Board of Directors and the
Dairy Farmers of Ontario;  United States' Response to Question No. 33, citing US Exhibit 22 from the first Article 21.5
proceeding.
425 Appellate Body Report, Canada – Dairy (Article 21.5 – New Zealand and US) , para. 115;  Appellate Body
Report, Canada – Dairy , DSR 1999:V, 2057, para. 108.
426 See footnote 85.WT/DS103/RW2
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producer in these circumstances will opt for pre-committing milk production as CEM rather than face
having to dispose of the milk as Class 4(m) animal feed.427  Because of the relative unattractiveness of
the price for Class 4(m) milk and because a producer cannot channel any non-quota milk that has not
been pre-committed into the CEM market, the Panel considers that the policy of pre-commitment, in
those provinces where it is required by law428, provides an additional incentive to pre-commit a larger
quantity of milk than the producer would market as CEM if able to allocate to that market ex post .
(iv) The SCM Agreement as contextual guidance for Article 9.1 of the Agreement on Agriculture
5.131  We recall Canada's argument that the concept of export subsidies found in Article 9.1 should be
interpreted with reference to Article 1.1(a)(1), and particularly Article 1.1(a)(1)(iv), of the SCM
Agreement  as context.429  On this point, the Complainants argue that Canada is improperly seeking to
narrow the scope of the Agreement on Agriculture .430  Specifically, they assert that the concept of
"financial contribution" in Article 1.1(a)(1) of the SCM Agreement  has no relevance to Article 9.1(c) of
the Agreement on Agriculture  which is concerned with "payments".431  Similarly, they state, the words
"entrust[ing] or direct[ing]" in Article 1.1(a)(1)(iv) of the SCM Agreement  has no bearing on the
interpretation of Article 9.1(c) of the Agreement on Agriculture .432
5.132  In the present case, because we consider that there is a demonstrable link between
governmental action and the financing of payments within the meaning of Article 9.1(c) of the
Agreement on Agriculture , we do not see any need to consider whether Article 1.1(a)(1) or
Article 1.1(a)(1)(iv) of the SCM Agreement  may provide relevant context.  In addition, we again take
note of the Appellate Body's statement  that "payment" within the meaning of Article 9.1(c) of the
Agreement on Agriculture  may include a payment made by third parties.433  In this sense, we agree with
the Complainants' arguments that Article 1.1(a)(1) of the SCM Agreement  has a narrower meaning than
Article 9.1(c) of the Agreement on Agriculture  as interpreted by the Appellate Body.   For this same
reason, we see no justification for looking to the specific example of "financial contribution by a
government " found in Article 1.1(a)(1)(iv), invoked by Canada.  Again, "payments" within the meaning
of Article 9.1(c) of the Agreement on Agriculture  may be made by third parties.  Moreover, no Party has
ever suggested that the notion of government entrus ting or directing private bodies to make financial
contributions normally made by a government, within the meaning of Article 1.1(a)(1), has any
relevance to this case.
(d) Conclusion as to whether payments are "fin anced by virtue of governmental action"
5.133  The Panel recalls its finding in paragraph 5.98 above that the Complainants make a prima facie
case of a demonstrable link between governmental action and the financing of payments.
5.134  In light of our analysis above, the Panel finds  that Canada, pursuant to Article 10.3, has failed to
establish that governmental action – in the form of the exemption of CEM processors from paying the
                                                     
427 The Panel recognizes that producers who have pre-committed milk as CEM, but who are unable to meet their pre-
commitment obligation, may be penalized through the operation of the governmental "first-out-of-the-tank" policy whereby thegovernment reallocates milk produced under quota to make up for any shortfall in CEM pre-commitments.   Canada's Exhibit
CDA-13D in Panel Report, Canada – Dairy,(Article 21.5 – New Zealand and US) .  However, in our view, this policy does not
remove the producer incentives to pre-commit.
428 Para. 3.65 above, citing Canada's Exhibit CDA-10.  We note that the three provinces concerned, Ontario, Quebec
and Manitoba, account for the bulk of all Canadian milk production, i.e.,  approximately 80  per cent.
429 See para. 5.78 above.
430 Para. 3.86 above.
431 Para 3.88 above.
432 Ibid.
433 Appellate Body Report, Canada – Dairy , DSR 1999:V, 2057, para. 113; Appellate Body Report, Canada – Dairy
(Article 21.5 – New Zealand and US) , paras. 96 and 115.WT/DS103/RW2
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higher in-quota price, the prohibition on the diversio n of CEM back into the domestic regulated market,
the cross-subsidization provided through the in-quota price and the mandated pre-commitment policy –
is not demonstrably linked to the financing of payments.
5.135  The Panel therefore finds  that payments are "financed by virtue of governmental action" within
the meaning of Article 9.1(c).
4. Conclusion on Article 9.1(c) of the Agreement on Agriculture
5.136  Having found in paragraph 5.89 above that "payments" are being made, and in paragraph 5.135
above that payments are "financed by virtue of governmental action", and because the Parties have not
contested the finding of the first Article 21.5 panel that any payments are made "on the export" of
processed dairy products, the Panel finds  that Canada provides export subsidies within the meaning of
Article 9.1(c) of the Agreement on Agriculture .
E. ARTICLE  3.3 OF THE AGREEMENT ON AGRICULTURE
5.137  Having found that CEM exports are being subsidized within the meaning of Article 9.1(c), the
Panel recalls the original panel's434 and the Appellate Body's435 findings that, as acknowledged by
Canada436, Class 5(d) exports are also subsidized within the meaning of Article 9.1(c).  Since it is
uncontested that Canada's exports of cheese and "other milk products" exceed Canada's export subsidyreduction commitment levels, the Panel finds that Canada has provided export subsidies in respect of
cheese and "other milk products" in excess of its quantity commitment levels specified in its Schedule,
and is therefore in breach of Article 3.3 of the Agreement on Agriculture .
F. 
WHETHER EXPORT SUBSIDIES EXIST WITHIN THE MEANING OF ARTICLE  10.1 OF THE
AGREEMENT ON AGRICULTURE
1. Introduction
5.138  In the alternative to their claims under Article 9.1(c), the Complainants have made claims under
Article 10.1 of the Agreement on Agriculture .  Canada claims that it does not provide export subsidies
within the meaning of Article 10.1.
5.139  Article 10.1 provides as follows:
"Export subsidies not listed in paragraph 1 of Article 9 shall not be applied in a manner
which results in, or which threatens to lead to, circumvention of export subsidy
commitments;  nor shall non-commercial transactions be used to circumvent such
commitments."
5.140  The Panel recalls that the original panel in Canada – Dairy , in its finding under that Article,
considered that the elements of an Article 10.1 subsidy are whether there are: (1) export subsidies not
listed in paragraph 1 of Article 9;  and whether any such export subsidies are (2) applied in a mannerresulting in or threatening to lead to ci rcumvention of export subsidy commitments.
437  We note that, as
                                                     
434 Panel Report, Canada – Dairy , DSR 1999:VI, 2097, para. 7.113.
435 Appellate Body Report, Canada – Dairy , DSR 1999:V, 2057, para. 124.
436 Para. 2.2 above;  Panel Report, Canada – Dairy , DSR 1999:VI, 2097, para. 8.1 and Appellate Body Report,
Canada – Dairy , DSR 1999:V, 2057, para 144.
437 We note that the panel did not address the second phrase of Article 10.1 and considered that the first sentence
comprised two elements.  Panel Report, Canada – Dairy , DSR 1999:VI, 2097, paras. 7.118 and 7.120.  We recall that the
Appellate Body, in discerning the meaning of "to circumvent", not ed the dictionary definition of the term as meaning "to find a
way round, evade … ".  Appellate Body Report, US – FSC , para. 148.WT/DS103/RW2
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the Appellate Body has stated, because Article 10.1 is residual in character to Article 9.1, a measure
listed as an export subsidy in Article 9.1 cannot simultaneously be an export subsidy under
Article 10.1.438  We also recall that, as the original panel in Canada – Dairy  stated, "measures which
meet some but not all the definitional elements of the individual export subsidy practices listed inArticle 9.1 would be covered by Article 10.1, provided that they meet the basic requirement of
Article 1(e) that they are 'subsidies contingent upon export performance'."
439
5.141  We have earlier examined whether or not there is an export subsidy within the meaning of
Article 9.1(c), and found that an export subsidy within  the meaning of Article 9.1(c) exists.  However,
should our finding under Article 9.1(c) be reversed on appeal, this would mean that at least one of the
definitional elements of this provision would not be pr esent.  Accordingly, in order to resolve the matter
in dispute, we consider it advisable to proceed to examine the Parties' claims and arguments underArticle 10.1.
5.142  In recalling our consideration on the operational interpretation of Article 10.3 in
paragraphs 5.18-5.19 above and in accordance with our analysis under Article 9.1(c), the Panel will first
determine whether the Complainants make a prima facie case that certain elements of the Canadian
regulation of its dairy industry constitute export subsidies within the meaning of Article 10.1 of theAgreement on Agriculture.   Provided we find that the Complainants make a prima facie case that export
subsidies within the meaning of Article 10.1 exist, it will then be for Canada to attempt to discharge its
burden, pursuant to Article 10.3, of establishing that no such export subsidies exist.  Similarly,
assuming the Panel finds that the Complainants provide a prima facie showing that the manner of
application of such export subsidies results in or threatens to result in circumvention of export subsidycommitments, it will be for Canada, pursuant to Article 10.3, to establish that the manner of application
does not result in or threaten to lead to circumvention of these commitments.  In the same vein, should
the Panel find that the Complainants make out a prima facie  case that non-commercial transactions are
being used by Canada to circumvent its export subsidy reduction commitment levels, it will then be for
Canada to establish the contrary.
2. Whether "export subsidies" exist
5.143  The first issue to be addressed under Article 10.1 is whether or not one or more of the
definitional elements of an Article 9.1 subsidy is absent.  Here, since the Complainants have only
alleged one specific type of Article 9 export subsidy, that found under Article 9.1(c), we need only
exclude the simultaneous applicability of Article 9.1(c) and Article 10.1, and not that of the other sub-
paragraphs of Article 9.1 setting forth other types of export subsidies.
440  Although we have found all
definitional elements of an Article 9.1(c) export subsidy to be present, we shall assume for the purposeof our analysis under Article 10.1 that one or more of the definitional elements of an Article 9.1(c)
export subsidy is not present.
(a) Whether the Complainants make a prima facie case
5.144  The Complainants argue that the SCM Agreement  and especially paragraph (d) of the
Illustrative List of Export Subsidies  in Annex I
441, as well as Article 1.1(a)(2) of the SCM Agreement442,
provide useful interpretative guidance under Article 10.1 of the Agreement on Agriculture  on whether
                                                     
438 Appellate Body Report, Canada – Dairy (Article 21.5 – New Zealand and US) , para. 121.
439 Panel Report, Canada – Dairy , DSR 1999:VI, 2097, para. 7.125.
440 Even if it could be argued that the Panel, on its own initiative and despite the lack of any argumentation on the
issue, would need to exclude all types of export subsidies listed in Article 9.1, a cursory review of that provision suggests t o us
that all those types listed invo lve direct forms of subsidies.
441 Para. 3.131 above.
442 Para. 3.153 above.WT/DS103/RW2
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subsidies contingent on export performance exist.  The United States argues that because the question in
this dispute is one of export subsidies, it is more appropriate, as stated by the panel in the original
Canada – Dairy  case, "to examine what practices are considered under the SCM Agreement  to be
'export subsidies', rather than to examine how that  agreement defines the more general concept of a
'subsidy' in its Article 1."443
5.145  The Complainants state that the CEM scheme fulfils the elements of paragraph (d) of the
Illustrative List  because:  (1) the goods are provided on terms more favourable than those for like goods
for domestic consumption, since CEM prices are lower than those for domestic milk444;  (2) the
provision of goods is made or mandated by governments for export as a result of the governmentally
created and enforced prohibition on sale in the domestic market and because the lower prices are
available only for export445;  (3) the goods are available on terms more favourable than those
commercially available on world export markets because of the relative unattractiveness of IREP, i.e.,
the in-quota tariff, the discretionary issuance of the permit and payment of the permit fee, in comparison
to CEM, and the processor's choice thus does not depend on commercial considerations.446
5.146  The United States also argues that IREP whole- milk powder is not fully substitutable with fluid
milk and that additional costs arise in connection with rehydration.447
5.147  The Complainants further contend that Article 1.1(a)(2) of the SCM Agreement  provides
relevant context to the interpretation of "export subsidy" in Article 10.1 of the Agreement on
Agriculture .448  They allege that the CEM system is one providing "income or price support … which
operates directly or indirectly to increase exports" because the government has created a system which
makes milk available to processors for export at below both its domestic price and its average total costof production.
449
5.148  Recalling our statement in paragraph 5.142 above, the Panel finds that the Complainants' case,
as described in paragraphs 5.144-5.147 above, provides a prima facie  showing that export subsidies
within the meaning of Article 10.1 exist, such that  Canada can reasonably attempt to discharge its
burden, under Article 10.3 of the Agreement on Agriculture , of establishing that no export subsidies
exist.
(b) Canada's case on whether "export subsidies" exist
5.149  Canada argues that because there is an issue as to the meaning of "indirectly through
government-mandated schemes", as set forth in paragraph (d) of Annex I of the SCM Agreement , it is
necessary to have recourse to the general definition of "subsidy" set out in Article 1.1 of the SCM
Agreement .450  In this context, Canada specifically references the definition provided in
Article 1.1(a)(1)(iv), according to which a government "entrusts or directs a private body" to providegoods through delegation or an authoritative instruction or command.
451  Canada maintains that the
government has not instructed individual producers to provide CEM to processors but rather that they
enter into commercial transactions on their own volition.452
                                                     
443 Para. 3.146 above.
444 Para. 3.132 above.
445 Para. 3.133 above.
446 Paras. 3.134 - 3.135 above.
447 Para. 3.144 above.
448 Para 3.153 above.
449 Ibid.
450 Para. 3.147 above.
451 Para. 3.148 above.
452 Ibid.WT/DS103/RW2
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5.150  Moreover, Canada contends that Canada's regulation of its dairy industry does not meet the
definitional requirements of paragraph (d) of the Illustrative List .453  In this connection, Canada asserts
that the meaning of "indirect" in paragraph (d) shou ld be interpreted consistently with the meaning of
that term as it appears in Article 1.1 of the SCM Agreement .454  Specifically, Canada maintains that
there is no provision of products through a government mandated scheme because the government does
not command or direct producers to produce CEM.455  Canada also disputes that the prices under IREP
are less favourable than prices for CEM because, in its view, the Appellate Body has already rejected
that the existence of administrative formalities mean that imports are available on terms and conditions
that are less favourable.456  Tariffs, in Canada's view, fall into the same category as administrative
formalities.457  Finally, Canada submits that there is no independent requirement that a subsidy
illustrated in paragraph (d) be shown to be contingent on export performance because "every subsidyillustrated in Annex I of the SCM Agreement  is by definition an Article 1.1 'subsidy' that is contingent
on export performance".
458
5.151  In reference to Article 1.1(a)(2), Canada asserts that to conclude that because Canada does not
prevent sales of CEM from occurring at prices mutually agreed to between buyer and seller Canada is
thereby "supporting" the income generated by these sales is inconsistent with the concept of"support".
459
(c) Panel's examination of whether "export subsidies" exist
5.152  On the issue of how to give definition to the term "export subsidies" in Article  10.1, the Panel
recalls that the Parties disagree as to whether reference to the Illustrative List  found in Annex I of the
SCM Agreement  should be made in this case for contextual guidance.460
5.153  We note that Article 1(e) of the Agreement on Agriculture  defines "export subsidies" as
"subsidies contingent upon export performance", which is essentially identical to the definition of
prohibited export subsidies found in Article 3.1(a) of the SCM Agreement .  Moreover, Article 3.1(a)
includes within the concept of "subsidies contin gent upon export performance", those subsidies
illustrated in Annex I.  Accordingly, and in line with the approach adopted by the original panel onCanada – Dairy , we consider it appropriate to turn first to Article 3.1(a) of the SCM Agreement  and the
Illustrative List  in Annex I to that Agreement as contextual guidance for the term "export subsidies" as
contained in Article 10.1 of the Agreement on Agriculture .
5.154  WTO jurisprudence confirms that all of the practices identified in the Illustrative List  of the
SCM Agreement  are subsidies contingent upon export performance, within the meaning of
Article 3.1(a).
461  We note that the panel in Brazil – Aircraft (Article 21.5 (I))  analogized the Illustrative
List to a list of per se  violations.462  This reasoning was implicitly endorsed by the Appellate Body in
reviewing that panel's decision.463  We therefore consider that we need not first turn to Article 1.1(a)(1),
and particularly not Article 1.1(a)(1)(iv).  In this connection, we note that in the first Article 21.5
compliance case in Brazil – Aircraft , Canada actually argued to the panel that the Illustrative List
                                                     
453 Para. 3.139 above.
454 Para. 3.137 above.
455 Paras. 3.139 and 3.142 above.
456 Canada's Executive Summary, para. 41.
457 Canada's Executive Summary, para. 42.
458 Para. 3.137 above.
459 Para. 3.162 above.
460 See paras. 5.144 and 5.149 above.
461 Panel Report, Canada – Autos , para. 10.197;  Panel Report, Brazil – Aircraft (Article 21.5 (I)) , para. 6.42.
462 Panel Report, Brazil – Aircraft (Article 21.5 (I)) , para. 6.42.
463 Appellate Body Report, Brazil – Aircraft (Article 21.5 (I)) , para. 61.WT/DS103/RW2
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should be considered a per se  list of prohibited export subsidies.464  Neither do we think it necessary to
have recourse to Article 1.1(a)(2), which the Complainants suggest also provides interpretative
guidance for the meaning of "export subsidies" within the meaning of Article 10.1 of the Agreement on
Agriculture .
5.155  We shall accordingly examine the Parties' claims in relation to paragraph (d) of the Illustrative
List, as interpretative guidance, to determine whether Canada provides a valid defence to the claim that
export subsidies, within the meaning of Article 10.1 of the Agreement on Agriculture , exist.
5.156  Paragraph (d) of the Illustrative List  provides in relevant part as follows:
"The provision by governments or their agencies either directly or indirectly through
government-mandated schemes, of imported or domestic products … for use in the
production of exported goods, on terms or conditions more favourable than forprovision of like or directly competitive products … for use in the production of goods
for domestic consumption, if … such terms or conditions are more favourable than
those commercially available
57 on world markets to their exporters.
57 (footnote original) The term 'commercially available' means that the choice between domestic
and imported products is unrestricted and depends only on commercial considerations".
5.157  We understand that, as stated by the original panel in Canada - Dairy465, paragraph (d) requires
the presence of three elements:  (1) the provision of products for use in export production on terms more
favourable than for provision of like products for use in domestic production;  (2)  by governments
either directly or indirectly through government mandated schemes;  and (3) on terms more favourablethan those commercially available on world markets.
5.158  As for the first element, the Panel notes it is un contested that CEM prices are lower than the in-
quota price of milk on the domestic market.  As Canada considers it unnecessary to contest this first
element
466, the Panel need not examine this issue further.
5.159  With respect to the second element, the Panel recalls Canada's contention that the regulation of
its dairy industry does not meet some of the definitional requirements of paragraph (d) of the Illustrative
List.467  First, we note that Canada asks us to interpret the meaning of "indirect" in paragraph (d) in
accordance with the meaning of that term as it appears in Article 1.1 of the SCM Agreement  and,
accordingly, to find that there is no provision of products through a government mandated scheme
because the government does not command or direct producers to produce CEM.468  We also note the
Complainants' response to the effect that the provision of goods is made or mandated by government for
export as a result of the governmentally created and enforced prohibition on diversion of CEM into thedomestic regulated market and because the lower prices for CEM are available only for export.
469
5.160  On the interpretation of the term "indirect", we do not consider Canada's proposed reference to
the terms "entrust[ing] or direct[ing] a private body … ", as contained in Article 1.1(a)(1)(iv), to be
relevant to the type of governmental involvement at issue in this case.  Moreover, we recall our analysis
under Article 9.1(c) of the Agreement on Agriculture , in which we found a demonstrable link between
payments and the financing by virtue of governmental action without such a degree of directness as that
                                                     
464 Panel Report, Brazil – Aircraft (Article 21.5 (I)) , Annex 1-2: Canada's Rebuttal Submission, para. 26.
465 Panel Report, Canada – Dairy , DSR 1999:VI, 2097, para. 7.128.
466 Canada's First Submission, para. 102.
467 See para. 5.150 above.
468 Ibid.
469 See para. 5.145 above.WT/DS103/RW2
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being called for by Canada under Article 10.1.470  We observe that given the residual character of
Article 10.1, which comes into operation only if one of the elements of an Article 9.1 export subsidy is
not present, for us to rely on Canada's proposed interpretation would unduly narrow Article 10.1, thus
depriving it of meaning.  Rather, as the Complainants argue, we consider that the provision of goods ismade or mandated by government for export as a result of the prohibition on diversion of CEM back
into the domestic regulated market and the exemption which gives processors for export access to the
lower CEM prices.
5.161  As for the third element, we recall our earlier observation that IREP prices are on average
higher than CEM prices.
471  Based on the arguments and evidence before this Panel, we consider that
the combination of the discretionary nature of the IREP permit, the permit fee itself, the in-quota tariff
on IREP milk, the formalities associated with obtaining duty drawback, the limited substitutability ofIREP imports and the costs of rehydration of IREP dried milk, not only make IREP milk products more
expensive than CEM but generally make it a less favourable option.
472
5.162  Finally, since Canada considers that there is no independent requirement that a subsidy
illustrated in paragraph (d) be shown to be contingent on export performance because "every subsidy
illustrated in Annex I of the SCM Agreement  is by definition an Article 1.1 'subsidy' that is contingent
on export performance", we decline to independently examine whether Canada's CEM system is
contingent on export performance, within the meaning of paragraph (d) of the Illustrative List .
(d) Conclusion as to whether "export subsidies" exist
5.163  The Panel recalls its finding in paragraph 5.148 above that the Complainants make a prima
facie case that export subsidies within the meaning of Article 10.1 exist.
5.164  In light of our analysis in paragraphs 5.152-5.162 above the Panel finds  that Canada has failed
to establish that any of the three required elements of an export subsidy illustrated in paragraph (d) of
the Illustrative List  is not present and that it has therefore also failed to establish that no export subsidies
within the meaning of Article 10.1 exist.
5.165  Accordingly, we find that Canada provides export subsidies within the meaning of Article 10.1
of the Agreement on Agriculture .
3. Whether there is circumvention of export subsidy commitments or a threat thereof
5.166  Recalling our considerations set out in paragraphs 5.18-5.19 and in paragraph 5.142 above, the
Panel will first examine whether the Complainants make out a prima facie case that export subsidies are
applied in a manner leading to or threatening to lead to circumvention of export subsidy reduction
commitment levels.
(a) Whether the Complainants make a prima facie case on circumvention
5.167  The Complainants contend that exporting or adopting measures enabling the export of
subsidized products in excess of reduction commitment levels raises a presumption of circumvention or
threat thereof.473  The Complainants both argue that because of this presumption, to the extent that dairy
products have been exported in excess of Canada's reduction commitment levels, there has been actual
                                                     
470 See paras. 5.134-5.135 above.
471 See para. 5.116 and footnote 411 above.
472 See paras. 5.145-5.146 above.
473 The Panel notes that while only New Zealand explicitly  makes this argument, the United States also implicitly
makes the same point.  See para. 3.165 above.WT/DS103/RW2
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circumvention.474  Because there is no government imposed limit on the amounts of dairy products that
may be exported, and because Canada enables subsidization of exports, the Complainants argue, there is
a threat of circumvention.475
5.168  The Panel, in recalling its finding in paragraph 5.148 and its statement in paragraph 5.166
above, finds that the exposition of the Complainants' case in paragraph 5.167 constitutes a prima facie
case of circumvention or threat thereof such that Canada can reasonably attempt to discharge its burden
under Article 10.3 of establishing that the manner of application of export subsidies does not result in or
threaten to lead to circumvention of export subsidy reduction commitment levels.
(b) Canada's case on circumvention
5.169  Canada claims that because it does not provide an export subsidy, it is not circumventing its
export subsidy commitments. 476  For this reason, Canada argues that the issue of circumvention is
moot.477
(c) Panel's examination of the issue of circumvention
5.170  The Panel recalls that it is for Canada, pursuant to Article 10.3, to establish that export
subsidies are not being applied so as to circumvent or threaten to circumvent Canada's export subsidy
commitments.  We take note of Canada's argument that the issue of circumvention becomes mootbecause it is not providing either a subsidy or an export subsidy.
478  H o w e v e r ,  a s  w e  h a v e  f o u n d  a t
paragraph 5.165 above that Canada is providing export subsidies of a type other than those listed in
Article 9.1, we do not consider that the issue of circumvention is moot.
(d) Conclusion on the issue of circumvention
5.171  The Panel recalls its finding in paragraph 5.168 above that the Complainants make a prima
facie showing of circumvention or threat of circum vention of export subsidy reduction commitment
levels.
5.172  In light of our consideration in paragraph 5.170 above and because Canada does not make any
further arguments on this issue, the Panel finds  that Canada has failed to establish that export subsidies
are not being applied so as to circumvent or threaten to circumvent Canada's export subsidycommitments.
5.173  We therefore also find that the manner of application of export subsidies circumvents or
threatens to circumvent Canada's export subsidy commitments, within the meaning of Article 10.1.
4. Conclusion on Article 10.1
5.174  Recalling our findings at paragraphs 5.165 and 5.173 above, we find that Canada is applying
export subsidies of a type not listed in Article 9.1 in a manner which results in, or which threatens to
lead to, circumvention of export subsidy commitm ents, inconsistently with Article 10.1 of the
Agreement on Agriculture .  We emphasize that this finding is made in the alternative, in the event that
our finding in paragraph 5.136 above with respect to Article 9.1(c) would be overturned on appeal.
                                                     
474 Paras. 3.165 and 3.168 above.
475 Paras. 3.165 and 3.167 – 3.168 above.
476 Para. 3.169 above.
477 Ibid.
478 See para. 5.169 above.WT/DS103/RW2
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5.175  Because we have already found in the previous paragraph that Canada has acted inconsistently
with its obligations under Article 10.1, we consider it appropriate to exercise judicial economy with
respect to the Parties' additional claims on whether "non-commercial transactions" are used to
circumvent export subsidy commitments.
G. WHETHER OR NOT EXPORT SUBSIDIES NOT IN CONFORMITY WITH THE AGREEMENT ON
AGRICULTURE AND THE COMMITMENTS SPECIFIED IN CANADA 'S SCHEDULE ARE PROVIDED ,
WITHIN THE MEANING OF ARTICLE 8 OF THE AGREEMENT ON AGRICULTURE
5.176  Recalling that Article 8 of the Agreement on Agriculture  provides that "[e]ach Member
undertakes not to provide export subsidies otherwise than in conformity with this Agreement", we also
find that as a consequence of the violations of either Article 3.3 (through Article 9.1(c)) or Article 10.1,
Canada has acted inconsistently with its obligations under Article 8.
H. WHETHER OR NOT CANADA PROVIDES PROHIBITED EXPORT SUBSIDIES WITHIN THE MEANING OF
ARTICLE  3.1 OF THE SCM AGREEMENT
5.177  The United States claims, in addition, that Canada's measure is an export subsidy within the
meaning of Article 3.1 of the SCM Agreement .  Canada, in contrast, disputes this claim.
5.178  Because the Panel has found that export subsidies ex ist, within the meaning of Article 9.1(c) or,
in the alternative, Article 10.1 of the Agreement on Agriculture , we consider we have made findings
sufficient to resolve the matter in dispute.  Sh ould the Appellate Body, however, not uphold our finding
under Article 9.1(c) and our alternate finding under Article 10.1, we deem the factual record to be
complete with respect to making a finding under Article 3.1 of the SCM Agreement .WT/DS103/RW2
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VI. CONCLUSIONS AND RECOMMENDATIONS
6.1 In light of the findings contained in Section V above, the Panel concludes  that Canada, through
the CEM scheme and the continued operation of Special Milk Class 5(d), has acted inconsistently with
its obligations under Articles 3.3 and 8 of the Agreement on Agriculture , by providing export subsidies
within the meaning of Article 9.1(c) of the Agreement on Agriculture  in excess of its quantity
commitment levels specified in its Schedule for exports of cheese and "other dairy products".  In light
of our alternative finding in Section V that Canada has acted inconsistently with its obligations under
Article 10.1 of the Agreement on Agriculture , we conclude that Canada has acted inconsistently with its
obligations under Article 8 of the Agreement on Agriculture .
6.2 Since Article 3.8 of the DSU provides that "[i]n cases where there is an infringement of the
obligations assumed under a covered agreement, the action is considered prima facie  to constitute a case
of nullification or impairment", the Panel concludes  that – to the extent Canada has acted inconsistently
with its obligations under the Agreement on Agriculture  – it has nullified or impaired benefits accruing
to New Zealand and the United States under this Agreement.
6.3 The Panel recommends  that the Dispute Settlement Body request Canada to bring its dairy
products marketing regime into conformity with its obligations in respect of export subsidies under the
Agreement on Agriculture .WT/DS103/RW2
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VII. ANNEX
1. Abbreviations used for dispute settle ment cases referred to in the report
Short title Full Title
Brazil – Desiccated Coconut Report of the panel  Brazil – Measures Affecting Desiccated Coconut ,
WT/DS22/R, adopted 20 March 1997
Brazil – Aircraft Report of the Appellate Body  Brazil – Export Financing
Programme for Aircraft , WT/DS46/AB/R, adopted
20 August 1999
Brazil – Aircraft Article 21.5 (I) Report of the panel  Brazil - Export Financing Programme for Aircraft –
Recourse by Canada to Article 21.5 of the DSU , WT/DS46/RW,
9 May 2000
Canada – Aircraft Report of the Appellate Body  Canada – Measures Affecting the Export of
Civilian Aircraft , WT/DS70/AB/R, adopted 20 August 1999
Canada – Autos Canada – Certain Measures Affecting the Automotive Industry,
WT/DS139-WT/DS142
Canada – Dairy Report of the panel  Canada Dairy – Measures Affecting the Importation of
Milk and the Exportation of Dairy Products , WT/DS103/R, WT/DS113/R,
adopted 27 October 1999
Canada – Dairy Report of the Appellate Body  Canada Dairy – Measures Affecting the
Importation of Milk and the Exportation of Dairy Products ,
WT/DS103/AB/R, WT/DS113/AB/R, adopted 27 October 1999
Canada – Dairy (Article 21.5 - New Zealandand US)Report of the panel  Canada Dairy – Measures Affecting the Importation of
Milk and the Exportation of Dairy Products , recourse to Article 21.5 of the
DSU by New Zealand and the United States, WT/DS103/RW,WT/DS113/RW, adopted 18 D ecember 2001
Canada – Dairy (Article 21.5 - New Zealand
and US)Report of the Appellate Body  Canada Dairy – Measures Affecting the
Importation of Milk and the Exportation of Dairy Products , recourse to
Article 21.5 of the DSU by New Zealand and the United States,WT/DS103/AB/RW, WT/DS113/AB/RW, adopted 18 D ecember 2001
Canada – Export Credits Report of the panel  Canada – Export Credits and Loan Guarantees for
Regional Aircraft , WT/DS222/R, adopted 19 February 2002
India – Patents Report of the Appellate Body  India – Patent Protection for
Pharmaceutical and Agricultural Chemical Products , WT/DS50/AB/R,
adopted 16 January 1998
US – Export Restraints Report of the panel  United States – Measures Treating Export Restraints
as Subsidies , WT/DS194/R, adopted 23 August 2001
US – FSC Report of the Appellate Body  United States - Tax Treatment of Foreign
Sales Corporations,  WT/DS108/AB/R, adopted 20 March 2000
United States – FSC Article 21.5 Report of the Appellate Body  United States - Tax Treatment for ‘Foreign
Sales Corporations recourse to Article 21.5 of the DSU,WT/DS108/AB/RW, adopted 29 January 2002
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