   
  
WT/DS316/43  
 
11 December 2019  
(19-8515) Page: 1/3 
  Original: English  
 
EUROPEAN COMMUNITIES AND CERT AIN MEMBER STATES  - MEASURES AFFECTING 
TRADE IN LARGE CIVIL  AIRCRAFT  
RECOURSE TO ARTICLE 21.5 OF THE DSU BY T HE EUROPEAN UNION  
NOTIFICATION OF AN A PPEAL BY THE EUROPEA N UNION1 UNDER ARTICLE 16.4 AND ARTICLE 17 
OF THE UNDERSTANDING ON RUL ES AND PROCEDURES  GOVERNING THE SETTLE MENT OF 
DISPUTES (DSU), ARTICLE 7.6 OF THE  AGREEMENT ON SUBSIDI ES AND COUNTERVAILIN G 
MEASURES (SCM AGREEM ENT) AND UNDER RULE 20(1) OF THE  
WORKING  PROCEDURE S FOR APPELLATE REVI EW 
The following communication, dated 6 December 2019 , from the delegation of the European Union , 
is being circulated to Members.  
 
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Pursuant to Article 16.4 and Article 17.1 of the DSU, and Article 7.6 of the SCM Agreem ent, the 
European Union hereby notifies to the Dispute Settlement Body its decision to appeal to the 
Appellate  Body certain issues of law covered in the Panel Report and certain legal interpretations 
developed by the Panel in the dispute European Union – Measures Affecting Trade in Large Civil 
Aircraft (Recourse to Article 21.5 of the DSU by the European Union)  (WT/DS316/RW2).  Pursuant 
to Rule  20(1) of the Working Procedures for Appellate Review , the European Union simultaneously 
files this Notice of Appeal with the Appellate Body Secretariat.  
The European Union is restricting its appeal to those errors that it believes constitute serious errors 
of law and legal interpretation that need to be corrected.  Non-appeal of an issue does not signify 
agreement  therewith.   
For the reasons to be further elaborated in its submissions to the Appellate Body, the European  Union 
appeals, and requests the Appellate Body to reverse, modify, or declare moot and of no legal effect, 
the findings, conclusions, and recommend ations of the Panel, with respect to the following errors of 
law and legal interpretations contained in the Panel Report:2 
1. The Panel erred in the interpretation and application of Articles 1.1 and 7.8 of the 
SCM Agreement  when finding that the full repayme nt of the UK A350XWB Member State Financing 
("MSF") loan failed to achieve the withdrawal of the subsidy .3 
 
1 Unless the context  otherwise requires, as a matter of WTO law, references in this document (and any 
subsequent document filed in this dispute) to the European Union include the "certain member States " 
(France,  Germany, Spain, and the United Kingdom) against which the United  States commenced this dispute.  
2 Paragraph numbers provided in footnotes to the following description of the errors of the Panel are 
intended to indicate the primary instance of the errors.  These errors have consequences throughout the report, 
and the European Union also appeals all find ings and conclusions deriving from or relying on the appealed 
errors, and in particular the relevant findings and conclusions in Sections 7 and 8 of the Panel Report.  The 
European Union also emphasises that the paragraphs listed in this Notice of Appeal co mprise only an 
"indicative list ", pursuant to Rule 20(2)(d)(iii) of the Working Procedures for Appellate Review.  
3 Panel Report, paras. 7.188 -7.190, 7.195 -7.204 , 7.259(b), 8.1(b)(ii) . WT/DS316/43  
 
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  2. The Panel erred in the interpretation and application of Articles 1.1 and 7. 8 of the 
SCM Agreement when finding that amendment of the terms of a subs idy to align it with a 
contemporaneous market benchmark does not "withdraw the subsidy ".4 
3. The Panel erred in the application of Articles 1.1 and 7.8 of the SCM Agreement , and failed to 
make an objective assessment of the matter under Article 11 of the DSU,  in finding that the 
amendment to the German A350XWB MSF loan agreement did not result in the withdrawal of the 
German A350XWB MSF subsidy.5 
4. The Panel erred in the application of Articles 1.1 and 7.8 of the SCM Agreement , and failed to 
make an objective assessment of the matter under Article 11 of the DSU, in finding that the 
restructuring of the French, German, Spanish and UK A380 MSF loans ha s not achieved the 
withdrawal of each, or any, of those four A380 MSF subsidies.6 
5. The Panel erred in the interpretation and application of Articles 1.1 and 7.8 of the 
SCM Agreement,  and failed to make an objective assessment of the matter under Article 11 of the 
DSU, in finding that the Spanish A380 MSF subsidy has not been withdrawn as a result of the 
amortisation of benefit.7 
6. The Panel erred in the interpretation of Article 7.8 of the SCM Agreement  in finding that Airbus ' 
14 February 2019 announcement to wind down the A380 programme  ("A380 wind -down 
announcement ") does not demonstrate that the European Union has achieved compliance with the 
obligation to "take appropriate steps to remove the adverse effects ".8 In the alternative, the Panel 
erred in the app lication of Articles 5, 6.3, and 7.8 of the SCM Agreement,  in finding present  adverse 
effects in the form of impedance in the Singaporean and United Arab Emirates ' markets for very 
large aircraft ( "VLA"),9 despite  the A380 wind-down announcement having con stituted an 
appropriate step to remove those adverse effects.   
7. The Panel failed to make an objective assessment of the matter under Article 11 of the DSU  
in finding that the A380 and the A350XWB would not have been launched before December 2013, 
absent A380 and A350XWB MSF subsidies.10 The European Union requests the Appellate Body to 
consider this appeal only conditionally, if it reverses, following a poss ible appeal by the United States, 
the Panel 's finding that, in the counterfactual considered by the Panel, Airbus would have launched 
the A350XWB in 2014.11 
8. The Panel failed to make an objective assessment of the matter under Article 11 of the DSU, 
and erre d in the application of Articles 5, 6.3, and 7.8 of the SCM Agreement , when finding 
(i) impedance in the VLA product market in Singapore and the United Arab Emirates;12 
(ii) impedance in the twin -aisle product markets in the European Union, China, Korea and  
Singapore;13 and, (iii)  lost sales in the global twin -aisle product market.14 
9. The Panel erred in the interpretation and application of Articles 21.5 and 22.8 of the DSU, and 
failed to make an objective assessment of the matter under Article 11 of the DSU, i n failing to 
address the implications of its finding that present adverse effects, in the form of significant lost 
sales, no longer exist in the VLA market.  In particular, the Panel failed to address the implications 
of its findings of EU compliance, in vi ew of the end of those adverse effects, for the amount of 
countermeasures, if any, that the United States continues to be authorised to impose.15 Additionally, 
 
4 Panel Report, paras. 7.142 -7.151, 7.158, 7.163 -7.164, 7.217 -7.219, 7.234, 7.259(a)(ii), 7.259(c)(i), 
8.1(b)(i), 8.1(b)(iii) . 
5 Panel Report, paras. 7.156, 7.157, 7.158 , 7.162 -7.163, 7.164 , 7.259(a), 8.1(b)(i).  
6 Panel Report, paras. 7.227 -7.229, 7.231, 7.232, 7.233, 7.234, 7.244, 7.245 , 7.259(c)(i), 7.259(c)( ii), 
8.1(b)(iii), 8.1(b)(iv).  
7 Panel Report, para s. 7.239, 7.244, 7.245 , 7.259(c)(ii), 8.1(b)(iv) . 
8 Panel Report, paras. 7.412 , 7.421 -7.427 , 7.446, 8.1(c)(iii)(1) . 
9 Panel Report, paras. 7.412, 7.421 -7.427 , 7.446, 8.1(c)(iii)(1) . 
10 Panel Report, paras. 7.279, 7.284, 7.285, 7.290, 7.291, 7.293, 7.295, 7.296, 7.297, 7.298 , 7.421 -
7.427 , 7.428 -7.430,  7.441 -7.446,  8.1(c)(i), 8.1(c)(iii)(1 ), 8.1(c)(iii)(2 ), 8.1(c)(iii)(3 ). 
11 Panel Report, paras. 7.369 , 8.1(c)(i) . 
12 Panel Report, paras. 7.421-7.427 , 7.446, 8.1(c)(iii)(1) . 
13 Panel Report, paras. 7.428 -7.430,  7.446, 8.1(c)(iii)(2) .  
14 Panel Report, paras. 7.441 -7.445,  7.446, 8.1(c)(iii)(3) .  
15 Panel Report, paras. 7.440, 8.1-8.4. WT/DS316/43  
 
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  the Panel 's errors listed in paragraphs 1 through 8, above, give rise to a consequential error in  that 
the Panel has failed to address the implications of other aspects of the European Union 's compliance 
for the amount of countermeasures, if any, the United States continues to be authorised to impose.  
 
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