Detailed Presentation of Domestic Support

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1 WTO E-LEARNING COPYRIGHT 12 Detailed Presentation of Domestic Support OBJECTIVES Present the second pillar of the Agreement on Agriculture: Domestic Support Outline the Conceptual Framework of the rules on domestic support in the Agreement on Agriculture; Explain the Green Box; Explain other exempt support: blue box, development programmes, de minimis; Describe the Domestic Support Subject to Reduction Commitments (Amber Box); Outline the Notification Obligations of WTO Members concerning Domestic Support for Agricultural Products. M y C o u r s e s e r i e s

2 I. CONCEPTUAL FRAMEWORK In the WTO, agricultural support measures are classified as belonging to two major groups: (1) domestic support; and (2) export subsidies. This Module looks at domestic support. At the end of this Module, you should be able to explain: the rules governing domestic support in the Agreement on Agriculture; the terms "Green Box", "Blue Box", and "Amber Box"; the exemptions for certain development programmes in developing country Members; the rules concerning de minimis levels of support; and the domestic support subject to reduction commitments. The GATT 1947 allowed Contracting Parties to grant subsidies. GATT 1947 Article III.8(b) stated that subsidies to producers were not prohibited by the national treatment obligation, however, the provision was subject to varying interpretation. Likewise, the rules governing price support measures were unclear; some Contracting Parties concluded that they could freely provide subsidies to encourage agricultural production, while others argued that if these subsidies nullified or impaired the value of a tariff concession they were in breach of Article XXIII of GATT. Not all subsidies distort trade to the same extent. However, in agriculture, the widespread use of production-related subsidies, for example, price support measures, led to increasing production in some countries. In some cases, the combination of the protection and subsidies increased production above demand (particularly because demand was often suppressed due to high prices) and the excess had to be stockpiled or exported. However, with world market prices usually lower than domestic prices, the exports required export subsidies. Thus, one subsidy (domestic support) led to another (export subsidies). Even in cases where the country remained a net importer, domestic supports can affect trade by reducing demand for imports. As a result of the Uruguay Round, the disciplines in the Agreement on Agriculture have fundamentally changed the way domestic support in favour of agricultural producers was treated under the GATT Domestic support commitments and rules apply to government measures, other than tariffs, that benefit the producers and are not contingent on exports. The Agreement on Agriculture covers several categories of support. To some extent, this categorisation arose from the different effect that various types of support have on production and trade. For example, research and training are generally considered as non-trade-distorting because they do not directly encourage or support production or trade in specific products. Of course, education and training programmes may lead to increased productivity but they do not require students to grow certain crops, nor do they include payments from the State that depend on the volume produced. However, many argued that subsidies that guarantee high prices, and, therefore, directly encourage high levels of production, needed to be restricted. Hence, subsidies were grouped into different categories. 2

3 THE BOXES In WTO terminology, domestic subsidies are classified in "boxes". Originally, these were meant to have the colours of traffic lights: green (permitted), amber (slow down i.e. be reduced), red (forbidden). The Agreement on Agriculture has no Red Box, although domestic support exceeding the reduction commitment levels in the Amber Box is prohibited; and there is a Blue Box for subsidies that are tied to programmes that limit production. There are also exemptions for developing-country Members (normally called "S&D Box"), which covers the provisions in Article 6.2 of the Agreement on Agriculture. And there is a Green Box for subsidies that cause no more than minimal trade distortion. GREEN BOX The Green Box is defined in Annex 2 of the Agreement on Agriculture. In order to qualify for the Green Box, a subsidy programme must not have more than a minimal trade-distorting effect or effect on production (paragraph 1 of Annex 2). In addition, such measures have to be government-funded and must not involve price support. Green Box programmes tend to be those that are not targeted at particular products, and include general services, such as research, pest and disease control or marketing and promotion services, as well as certain direct payments to producers, such as income supports for farmers that are not related to (are "decoupled" from) current production levels or prices. They also include structural adjustment assistance, payments under environmental programmes and regional assistance programmes. Green Box subsidies are therefore allowed without limits, provided they comply with the policy-specific criteria set out in Annex 2. AMBER BOX All domestic support measures considered to distort production and trade, with the exception of some measures set out in Article 6, fall into the Amber Box and are subject to limits. These include measures to support prices, input subsidies or subsidies directly related to production quantities. In fact, any domestic support that cannot be included in the categories exempt from reduction (i.e. Article 6.2, Article 6.5 or Annex 2 of the Agreement), has to be accommodated within the ceilings set by the Total Aggregate Measurement of Support (Total AMS) and/or the de minimis provisions of the Agreement set out in paragraph 4 of Article 6. The Total AMS includes all support provided on either a product-specific or non-product-specific basis and is to be reduced during the implementation period. The AMS is defined in Article 1 and Annexes 3 and 4. In the case of Members with no scheduled reduction commitments, any domestic support not covered by the exempt categories must be maintained within the relevant product-specific and non-product-specific de minimis levels. BLUE BOX This is the "amber box with conditions" for certain supports that are part of production limiting programmes (details set out in paragraph 5 of Article 6 of the Agreement on Agriculture). At present, there are no limits on spending on Blue Box subsidies. 3

4 Exemption from Reduction Commitments (1) Green Box Annex 2 No more than minimally trade or production distorting (2) Blue Box Article 6.5 Production-limiting Programmes (3) Development Programmes Article 6.2 Investment, Input, Diversification Reduction Commitments & de minimis allowance Amber Box Articles 3 & 6 Reduction Commitments, de minimis Article 7 Annex 3 Annex 4 Table 1: General Disciplines Aggregate Measurement of Support Equivalent Measurement of Support Domestic Support Structure EXERCISES: 1. If you wanted to find out the type of domestic support that can be included in the exempt categories, to what provisions of the Agreement on Agriculture would you refer? 2. What are Amber Box subsidies and can you give some examples? 4

5 II. THE GREEN BOX II.A. GENERAL REQUIREMENTS Domestic support measures with no more than minimal impact on trade or production can be used without financial limitation they are placed in a Green Box. Therefore, provided that it complies with the provisions of Annex 2 of the Agreement on Agriculture, a WTO Member has the right to: increase spending on existing measures; introduce new measures; or amend existing measures. To qualify as a Green Box measure a programme must satisfy some general and specific criteria. The general criteria are set out in paragraph 1 of Annex 2. The general criteria are that the measures must: have no, or at most minimal, trade-distorting effects or effects on production; be provided through a publicly-funded government programme (including government revenue foregone) not involving transfers from consumers; and must not have the effect of providing price support to producers. Even with these general conditions the scope of the Green Box is quite broad and it covers a fairly wide range of programmes. However, Green Box measures must also meet the relevant policy-specific criteria listed in paragraphs 2 to 13 of Annex 2. The Green Box applies to both developed and developing country Members but in the case of developing countries special treatment is provided in respect of (1) governmental stockholding programmes for food security purposes and (2) subsidized food prices for urban and rural poor. II.B. GOVERNMENT SERVICE PROGRAMMES The Green Box covers many government service programmes including general services provided by governments, expenditures in relation to the accumulation and holding of public stocks for food security purposes, and expenditures in relation to the provision of domestic food aid to sections of the population in need - as long as the general criteria and some other policy-specific conditions are met by each measure (paragraphs 2, 3 and 4). 5

6 Under the General Services category (paragraph 2 of Annex 2), the Green Box exempts from reduction commitments many types of government programmes associated with agriculture such as: research; pest and disease control; training services; extension and advisory services; inspection services; marketing and promotion services; and infrastructural services, for example, spending on capital works such as electricity reticulation, roads and other means of transport, market and port facilities, water supply facilities, dams and drainage schemes as well as infrastructural works associated with environmental programmes. II.C. DIRECT PAYMENTS TO PRODUCERS The Green Box also provides for the use of direct payments to producers, which are not linked to production decisions, that is, although the farmer receives a payment from the government, this payment does not influence the type or volume of agricultural production ("decoupling"). The conditions preclude any linkage between the amount of such payments and production, prices or factors of production in any year after a fixed base period. In addition, no production can be required in order to receive Green Box payments. Additional criteria to be met depend on the type of measure concerned, which may include: decoupled income support measures; income insurance and safety-net programmes; natural disaster relief; a range of structural adjustment assistance programmes; and certain payments under environmental programmes and under regional assistance programmes. Paragraphs 5 to 13 of Annex 2 govern direct payments to farmers. According to the general requirements in paragraph 5, to qualify under the Green Box, a direct payment must comply with the general requirements of paragraph 1 as well as the specific criteria in paragraphs 6 to 13. These are elaborated, in a summary form, below: Decoupled income support (Annex 2, paragraph 6): Although current production should not be necessary to receive income support the payments can be based on production at some fixed time in the past. However, it cannot be based on, or linked to, current prices, current production or other factors of production; Government financial participation in income insurance and income safety-net programmes (Annex 2, paragraph 7): Income protection schemes are allowed for situations where income loss is greater than 30% compared to the average for the previous three years. The protection must not exceed 70% of the income loss; Payments for relief from natural disasters (Annex 2, paragraph 8): Payment for disaster relief is possible in situations where production has declined by at least 30% compared to the average for the 6

7 previous three years and the payments must be applied only in respect of losses of income or factors of production such as land or livestock. The value of the payments should cover only the loss suffered and, where made along with income insurance payments, must not exceed 100% of the producer's total loss; Structural adjustment assistance provided through producer or resource retirement programmes (Annex 2, paragraphs 9 and 10): Assistance under structural adjustment is possible for producer (paragraph 9) and resource retirement (paragraph 10) programmes. For producer retirement programmes the producer must retire from agriculture permanently and, for resource retirement based on land withdrawal, the land must not be used for marketable agricultural production for at least three years; Structural adjustment assistance provided through investment aids (Annex 2, paragraph 11): Structural adjustment payments can also be made through investment aids aimed at overcoming structural disadvantages or for land re-privatisation. Members in transition from centrally planned economies to market-orientated economies have made use of this provision for land re-privatisation. In addition, other countries with structural problems in agriculture have also made use of this provision; Payments under environmental programmes (Annex 2, paragraph 12): Direct payments to farmers may be made to encourage them to comply with environmental rules or to join a government environmental or conservation programme. The value of payments should be limited to the extra costs or reduced income involved in complying with the environmental programme; Payments under regional assistance programmes (Annex 2, paragraph 13): Payments may be made to overcome the difficulties faced by producers in disadvantaged areas. Although the payments should be based on some historic reference period they cannot be related to current production or current prices and are limited to the extra costs or lower income associated with farming in such areas; Other (Annex 2, paragraph 5): If a Member has or introduces a new type of direct payment that does not fit under the categories above but the Member claims it is exempt from reduction commitments it must comply with the basic criteria of paragraph 1, have no link to current production, prices, factors of production and no production can be required to receive the payment. 7

8 Green Box (US$ million) Selected Members Brazil 4,883 2,600 3,458 2,420 1,568 1,487 1,462 China* 22,267 25,113 29,278 European Union (15) 24,272 26,834 19,983 21,467 21,971 19,464 18,489 Honduras Japan 32,859 25,019 21,614 23,449 24,082 23,482 20,355 Korea, Republic of 5,174 6,443 6,093 3,828 4,590 4,469 Philippines South Africa Switzerland - Liechtenstein 2,298 2,404 2,128 2,191 2,165 1,997 2,177 United States 46,041 51,825 51,252 49,820 49,749 50,057 50,672 Table 2: Green Box Source: WTO Members' notifications. Conversion to US$ prepared for training purposes only, using exchange rates from the "International Financial Statistics" of the IMF. Figures have been rounded to the nearest million. For actual figures and currencies, please consult the notifications. Please note that China became a WTO Member on 11 December The domestic support notification (G/AG/N/CHN/8) concerning the years was provided by China for transparency purposes. EXERCISES: 3. What are the general criteria set out in paragraph 1 of Annex 2 for a measure to qualify as a Green Box subsidy? 4. Can you list the measure types which could be included in the Green Box? 8

9 III. OTHER EXEMPT SUPPORT In addition to measures covered by the Green Box, other categories of domestic support do not have to be reduced (see Article 6 of the Agreement on Agriculture): Blue Box subsidies - direct payments under production-limiting programmes; Development programmes in developing country Members; and De minimis levels of support. III.A. BLUE BOX Article 6.5 exempts from reduction commitments payments made under production-limiting programmes, which are paid out directly from the government's budget to producers (Blue Box measures) provided such payments are: (i) (ii) based on fixed area and yields; or made on 85% or less of the base level of production; or (iii) based on a fixed number of animals. Note that although the Green Box covers payments that are decoupled from both prices and production, in the case of the Blue Box measures, they can be directly related to current production, provided that current production is limited. Blue Box payments are used in countries that have found that the traditional market support payments caused problems of over-production, have become too expensive to maintain, or are too inefficient compared to the objective of maintaining farm incomes or rural employment. Direct payments to producers are considered more efficient than market supports in maintaining incomes and ensuring minimum areas are planted or livestock numbers maintained. Because farmers are paid directly rather than supported through higher prices there is less scope for other people to get part of this support. For example, if agriculture prices are increased through market support schemes much of the transfer of resources is captured by retailers, wholesalers and processors. Blue Box payments are said to be less trade-distorting than market supports or other types of production related subsidies because of the restrictions on production needed to comply with the criteria of Article 6.5. However, because they are based on animal numbers, area planted or crop yields, they do affect trade. 9

10 Blue Box (US$ million) Selected Members European Union (15) 26,943 26,095 22,487 22,963 19,842 19,798 21,231 Iceland Japan Norway 1,124 1,124 1,043 1, United States 7, Table 3: Blue Box Source: WTO Members' notifications. Conversion to US$ prepared for training purposes only, using exchange rates from the "International Financial Statistics" of the IMF. Figures have been rounded to the nearest million. For actual figures and currencies, please consult the notifications. III.B. DEVELOPMENT PROGRAMMES Measures of assistance (direct and/or indirect) designed to encourage agricultural and rural development and integral to the development programmes of developing countries are exempt from reduction commitments under Article 6.2 of the Agreement on Agriculture. They include: investment subsidies which are generally available to agriculture in developing country Members; agricultural input subsidies generally available to low-income or resource-poor producers in developing country Members; and domestic support to producers in developing country Members to encourage diversification from growing illicit narcotic crops. It should be noted that these are not the only programmes developing countries can implement and that the Green Box, the Blue Box and the Amber Box are also available to these Members. 10

11 Some developing-country Members have used the provisions of Article 6.2 to notify programmes they provide to support agriculture, as showed in the table below: Development Programmes - Article 6.2 (US$ million) Selected Members Brazil Chile Honduras Korea, Republic of Mexico Morocco Philippines Thailand Table 4: Development Programmes Source: WTO Members' notifications. Conversion to US$ prepared for training purposes only, using exchange rates from the "International Financial Statistics" of the IMF. Figures have been rounded to the nearest million. For actual figures and currencies please consult the notifications. III.C. DE MINIMIS As you saw above, support within de minimis levels is also exempt from reduction commitments. The related provisions of the Agreement on Agriculture will be taken up in conjunction with the Total AMS. EXERCISES: 5. What kind of measures are covered by the Blue Box? 6. What kind of measures in developing country Members are exempt from reduction commitment under provisions of Article 6.2 of the Agreement on Agriculture? 11

12 IV. DOMESTIC SUPPORT SUBJECT TO REDUCTION COMMITMENTS Any domestic support programme that cannot be included in the Green Box, Blue Box or Development Programmes has to be accommodated within the ceilings set by the Total Aggregate Measurement of Support (Total AMS) and/or the de minimis provisions of the Agreement on Agriculture. In other words, support that is not specifically excluded from reduction commitments is presumed to be included (see Article 7.2 of the Agreement on Agriculture) and must be counted in the calculation of the Member's Current Total AMS. During the Uruguay Round, in order to establish a basis for reductions, the GATT Contracting Parties set out the support they had provided to agriculture during the base period of 1986 to When subsidies exceeded the de minimis levels, Members were required to establish a Base Total AMS which was then subject to reductions. A similar approach applies to Members that joined after the Uruguay Round or are in the process of accession. In these cases the base periods more recent and vary from one Member to another. Section I of Part IV of a Member's Schedule contains the domestic support reduction commitments which are expressed in terms of the Total AMS and Annual and Final Bound Commitment Levels (Article 6.1 of the Agreement on Agriculture). (1) Base Total AMS is the sum of all domestic support provided in favour of agricultural producers during the average base period. (2) Annual Bound Total AMS is the maximum level of support a Member can provide during any year of the implementation period. (3) Final Bound Total AMS is the maximum level of support a Member can provide in the last year of the implementation period and thereafter. Total AMS includes all product-specific support and non-product-specific support in one single figure. The calculation of the Total AMS is set out in Article 6, and Annexes 3 and 4 to the Agreement on Agriculture. Developed-country Members committed to reduce Total AMS by 20% over the six-year implementation period ( ) and developing country Members by 13.3% over the 10-year period ( ). 1 2 Least developed countries were not required to make any reductions. The Total AMS commitment relates to the global amount of Amber Box (excluding de minimis support) and not to the particular mix of products. Hence, a Member can redistribute support between different products provided it complies with the Total AMS commitment set out in its Schedule. In any year of the implementation period and thereafter, the Current Total AMS value of non-exempt measures must not exceed the scheduled Total AMS limit as specified in a Member's Schedule. In other words, the maximum levels of such support are bound in the WTO. 1 Modalities for the Establishment of Specific Binding Commitments under the Reform Programme, MTN.GNG/MA/W/24, 20 December 1993, paragraph 8. 2 Different implementation periods apply for some of the recently acceded Members. 12

13 In the case of Members with no scheduled reduction commitments, any domestic support not covered by the exempt categories must be maintained within the relevant product-specific and non-product-specific de minimis levels. Current Total AMS (US$ million) Selected Members Brazil Canada ,791 Colombia European Union (15) 64,658 61,852 55,213 52,283 48,006 38,890 35,151 Japan 36,369 29,562 25,842 5,987 6,704 6,411 5,328 Korea, Republic of 2,691 2,446 2,036 1,115 1,305 1,495 South Africa Switzerland- Lichtenstein 3,624 2,964 2,374 2,257 1,876 1,835 1,636 Thailand United States 6,214 5,898 6,238 10,392 16,862 16,803 14,413 Table 5: Current Total AMS Source: WTO Members' notifications. Conversion to US$ prepared for training purposes only, using exchange rates from the "International Financial Statistics" of the IMF. Figures have been rounded to the nearest million. For actual figures and currencies please consult the notifications. 13

14 IV.A. WHAT IS DE MINIMIS? De minimis is a concept in the Agreement on Agriculture that exempts relatively small amounts of Amber Box support from the Total AMS commitment. When commitments were established in the Uruguay Round, Members were not required to include in their Total AMS the value of support during the base period that was within the following de minimis levels: product-specific support that did not exceed 5% of the total value of production of the basic agricultural product in question; and non-product-specific support that did not exceed 5% of the value of total agricultural production. In the case of developing country Members, the de minimis threshold is 10%. Figure 1: Amber Box and de minimis: Current Total Aggregate Measurement of Support IV.B. AGGREGATE MEASUREMENT OF SUPPORT (AMS) The details for AMS calculations are specified in Annex 3 of the Agreement on Agriculture. In any year of the implementation period and thereafter, a product-specific AMS is to be calculated for each basic agricultural product receiving non-exempt domestic support. Also, non-product-specific subsidies are to be listed and totalled into one non-product-specific AMS. The following types of support are to be included in the AMS calculation: Market price support is calculated on the basis of the gap between a fixed external reference price and the applied administered price multiplied by the quantity of production eligible to receive the applied administered price; Non-exempt direct payments, which depend on a price gap are calculated by using either the gap between a fixed external reference price and the applied administered price multiplied by the quantity of production eligible to receive the administered price, or by using budgetary outlays; and, non-exempt direct payments based on factors others than price are calculated using budgetary outlays; 14

15 Other subsidies not exempted from reduction commitments (for example, input subsidies or interest rate subsidies) are calculated using budgetary outlays or the gap between the price of the subsidized good or service and a representative market price for a similar good or service multiplied by the quantity of the good or service. As has been mentioned earlier, the Current Total AMS value of non-exempt measures provided in any given year must not exceed the scheduled Total AMS limit as specified in a Member's Schedule for that year. Also, the Current Total AMS has to be calculated in accordance "... with the constituent data and methodology used in the tables of supporting material incorporated by reference in Part IV of the Member's Schedule". Even though Total AMS commitments apply to the total value of non-exempt support in favour of agricultural producers, to arrive at the total level of support in terms of the Current Total AMS, the value of support for each product has to be calculated. Hence, for each basic agricultural product: the implicit subsidy of price support measures is added to other product-specific subsidies - a product-specific fertiliser subsidy, for example to arrive at a product-specific AMS which is then evaluated against the applicable de minimis threshold; if the value of support to an individual product does not exceed the de minimis level, it is treated as zero for the purpose of the Current Total AMS calculation. Non-product-specific AMS is calculated separately, and is included in the Current Total AMS only if it exceeds the relevant de minimis level. The two basic criteria for valuing support are: (1) its effect on prices; and, (2) its cost to the government. Both budgetary outlays (the money spent by governments to support a product) and revenue foregone by governments or their agents, whether at national or sub-national level, are to be included in the AMS calculation. The example in the box below illustrates the calculation of the Current Total AMS for a developed country Member (5% de minimis threshold) in year Y. 15

16 Example: Calculation of the Current Total AMS Member X (developed country), year Y Wheat: > Intervention price for wheat = $255 per tonne > Fixed external reference price (world market price) = $110 per tonne > Domestic production of wheat = 2,000,000 tonnes > Value of wheat production = $510,000,000 > Wheat AMS (AMS 1) ($255 $110) x 2,000,000 tonnes = $290,000,000 (de minimis level = $25,500,000) Barley: > Deficiency payments for barley = $3,000,000 > Value of barley production = $100,000,000 > Barley AMS (AMS 2) = $3,000,000 (de minimis level = $5,000,000) Oilseeds: > Deficiency payments for oilseeds = $13,000,000 > Fertilizer subsidy = $1,000,000 > Value of oilseeds production = $250,000,000 > Oilseeds AMS (AMS 3) = $14,000,000 (de minimis level = $12,500,000) Non-product-specific support: > Generally available interest rate subsidy = $4,000,000 > Value of total agricultural production = $860,000,000 > Non-product-specific AMS (AMS 4) = $4,000,000 (de minimis level = $43,000,000) Current Total AMS (AMS 1 + AMS 3) = $304,000,000 16

17 IV.C. EQUIVALENT MEASUREMENT OF SUPPORT Where it is not feasible to calculate the market price support component of the AMS by using the methodology set out in Annex 3, provisions are made for an "Equivalent Measurement of Support" (EMS). This may be the case for market price support measures which cannot be calculated by applying the AMS method because no external reference price can be determined. The EMS is generally calculated on the basis of actual budgetary outlays the money spent by governments to support a product, for example, rather than market price support calculated with respect to a fixed external reference price. Once the market price support component is determined, any non-exempt direct payments and other non-exempt support need to be calculated as per corresponding AMS components specified in relevant paragraphs of Annex 3. Like the AMS, the EMS is compared to the de minimis level and, if above that level, included in the Current Total AMS. The rules for calculating the EMS are set out in Annex 4 of the Agreement on Agriculture. EXERCISES: 7. What reduction commitments in Total AMS were undertaken by Members in the Uruguay Round? 8. What is the Equivalent Measurement of Support (EMS) and where are the rules for its calculation found? 17

18 Let us look at case concerning domestic support for agriculture products. However before we do so - please read the disclaimer! Disclaimer While the case study below is based on prior WTO Panel and/or Appellate Body rulings its main purpose is not to describe and review all the arguments and conclusions in the case in detail but rather to focus on the issues and principles addressed in the course and provide you with an outline of elements that you may wish to consider when reflecting on these issues and principles. CASE STUDY 1 KOREA BEEF (WT/DS161/AB/R and WT/DS169/AB/R) Korea Measures Affecting Imports of Fresh, Chilled and Frozen Beef Parties Agreements Timeline of the dispute Complainants Australia, GATT Articles Establishment of Panel 26 May 26 July 1999 United States III:4, XX, XI:I Circulation of Panel Report 31 July 2000 Respondent Korea and XVII:I Circulation of AB Report 11 December 2000 AA Articles 3, 4, 6 and 7 Adoption of AB Report 10 January Measure and product at issue Measure at issue: (i) Korea's measures affecting the importation, distribution and sale of beef, (ii) Korea's "dual retail system" for sale of domestic imported beef), and (iii) Korea's agricultural domestic support programmes. Products at issue: Beef imports from Australia and the United States. 2. Summary of key panel/ab findings 3 AA Art. 3.2 (domestic support): While upholding the Panel's conclusion that Korea miscalculated its domestic support (AMS) for beef, the Appellate Body reversed the Panel's ultimate finding that Korea acted inconsistently with AA Art. 3.2 by exceeding its commitment levels for total support for 1997 and 1998 since the Panel had also relied on an improper methodology for its own calculations. GATT Art. III:4 (dual retail system): The Appellate Body agreed with the Panel's ultimate conclusion that Korea's dual retail system (requiring imported beef to be sold in separate stores) accorded "less 3 Other issues addressed in this case: AA Art. 6.4, 7.2(a) (de minimis levels, current AMS for beef and current total AMS); GATT Art. II and XI (grass-fed, grain fed beef distinction); certain aspects of distribution and sales system for imported beef (GATT Art. III:4); state-trading entities (GATT Art. XI and the Ad Note; AA Art. 4.2 and footnote 1 to Art. 4.2); and panel's terms of reference (panel request) (DSU, Art. 6.2). 18

19 favourable" treatment to imported beef than to like domestic beef. According to the Appellate Body, the dual retail system virtually cut off imported beef from access to the "normal" distribution outlets for beef, which modified the conditions of competition for imported beef. In this connection, the Appellate Body said that formally different treatment of imported and domestic products is not necessarily "less favourable" for imports within the meaning of Art. III:4. (GATT Art. XX) Further, the Appellate Body upheld the Panel's finding that the dual retail system was not justified as a measure necessary to secure compliance with Korea's Unfair Competition Act because the dual retail system was not "necessary" within the meaning of Art. XX(d). "Necessary" requires the weighing and balancing of factors such as the contribution made by the measure to the enforcement of the law or regulation at issue, the relative importance of the common interests or values protected and the impact of the law on trade. The Appellate Body agreed with the Panel that Korea failed to demonstrate that it could not achieve its desired level of enforcement using alternative measures. GATT Arts. XI:1 and XVII:1(a) and AA Art. 4.2 (tender-related practices by a state-trading enterprise (LPMO) for beef imports): The Panel concluded that the LPMO's failure to call, and delays in calling for, tenders, as well as its discharge practices (i.e. the LPMO's increase in its stocks of foreign beef, while failing to meet requests for that beef) led to import restrictions on beef contrary to Art. XI. This also led to the conclusion that the measures were inconsistent with AA Art. 4.2, which prohibits Members from maintaining, resorting to, or reverting to any quantitative import restrictions, including non-tariff measures maintained through state-trading enterprises, which have been required to be converted into ordinary customs duties. The Panel also found that should the LPMO be viewed as a state-trading enterprise without full control over the distribution of its import quota share, the measures violated GATT Art. XVII:1(a) (a provision governing state-trading enterprises) as well, because they were inconsistent with the general principles of non-discriminatory treatment. (Korea did not appeal this finding.) TIP If you want to know more about the Korea beef case or to read the full case, see: See also the WTO Analytical Index at: Let us look at another case concerning domestic support for agriculture products -the usual disclaimer applies! Disclaimer While the case study below is based on prior WTO Panel and/or Appellate Body rulings its main purpose is not to describe and review all the arguments and conclusions in the case in detail but rather to focus on the issues and principles addressed in the course and provide you with an outline of elements that you may wish to consider when reflecting on these issues and principles. 19

20 CASE STUDY 2 US UPLAND COTTON (DS267) United States Subsidies on Upland Cotton Parties Agreements Timeline of the dispute Complainant Brazil AA Arts. 3.3, 8. Establishment of Panel 18 March (a) and 10 Circulation of Panel Report 8 September 2004 Respondent United States ASCM Arts. 3, Circulation of AB Report 3 March (c) and 6.3(c) Adoption 21 March Measure and product at issue Measure at issue: US agricultural "domestic support" measures, export credit guarantees and other measures alleged to be export and domestic content subsidies. Product at issue: Upland cotton and other products covered by export credit guarantees. 2. Summary of key panel/ab findings 4 AA Art. 13 (peace clause): The Appellate Body upheld the Panel's finding that the "Peace Clause" in the AA did not apply to a number of US measures, including domestic support measures for upland cotton. ASCM Art. 6.3(c) (serious prejudice): The Appellate Body upheld the Panel's finding that the effect of subsidy programme at issue i.e. marketing loan programme payments, Step 2 (user marketing) payments, market loss assistance payments, and counter-cyclical payments is significant price suppression within the meaning of Art. 6.3(c), causing serious prejudice to Brazil's interests within the meaning of Art. 5(c). The Panel found that other US domestic support programmes (i.e. production flexibility contract payments, direct payments, and crop insurance payments) did not cause serious prejudice to Brazil's interests because Brazil failed to prove a necessary causal link between these programmes and significant price suppression. ASCM Art. 3.1(a) and (b), AA, Art. 9.1(a) (Step 2 Payments import substitution subsidies and export subsidies): The Appellate Body upheld the Panel's finding that Step 2 payments to domestic users of US upland cotton were subsidies contingent on the use of domestic over imported goods that are prohibited under Art. 3.1(b) and 3.2 of the ASCM. The Appellate Body also upheld the Panel's findings that Step 2 payments to exporters of US upland cotton constitute subsidies contingent upon export performance within the meaning of Art. 9.1(a) of the AA and, consequently, the United States had acted inconsistently with AA Arts. 3.3 and 8. In addition, the Appellate Body found that the Step 2 payments 4 Other issues addressed: DSU Articles 11, 12.7, 17.5; terms of reference (expired measures, consultations); burden of proof; judicial economy; Appellate Body's scope of review (fact vs. law); sufficiency of notice of appeal (Working Procedures for Appellate Review, Rule 20(2)); statement of available evidence (ASCM Art. 4.2); GATT Art. XVI; Item (j) of the illustrative list of the ASCM. 20

21 to exporters were prohibited export subsidies that were inconsistent with Art. 3.1(a) and 3.2. of the ASCM. AA Art and ASCM Art. 3.1(a) and 3.2 (Export credit guarantees export subsidies): The Appellate Body upheld the Panel's finding that US export credit guarantee programmes at issue were "export subsidies" within the terms of the ASCM, and thus, circumvented the US export subsidy commitments in violation of Art of the AA and violated Art. 3.1(a) and 3.2 of the ASCM. The Appellate Body, in a majority opinion, also upheld the Panel's finding that AA Art does not exempt export credit guarantees from the export subsidy disciplines in Art One member of the Appellate Body, however, in a separate opinion, expressed the contrary view that Art exempts export credit guarantees from the disciplines of Art until international disciplines are agreed upon. Recommendation (ASCM Arts. 4.7 and 7.8): The Panel recommended that (i) as for prohibited subsidies (export credit guarantees and step 2 payments), the United States withdraw them without delay (i.e. in this case, within six months of the date of adoption of the Panel/AB Report or 1 July 2005 (whichever was earlier)) 5 ; and (ii) as for subsidies found to cause serious prejudice, the United States should take appropriate steps to remove their adverse effects or withdraw the subsidy. TIP If you want to know more about the US Upland Cotton case or to read the full case, see the following links on the WTO Website: See also the WTO Analytical Index at: ILLUSTRATION A developed country Member A, has a Total AMS of US$200 million in the base years of Member A reduced this figure by 20% over six years starting in However, its subsidies on sugar have increased since Member B, would like to challenge Member A's use of subsidies. According to Member B, the Agreement on Agriculture prohibits increases in the use of subsidies for agricultural products. Member A is of a different view. Member A, points to the fact that it has sufficient room in its Total AMS commitment as it has decreased support to other products (grains) and therefore it can increase support for sugar. Member A argues that it can increase its domestic support on sugar so long as the Current Total AMS in any year of the implementation does not exceed the ceiling set by the Total AMS in its Schedule of Commitments. They seek your opinion - what do you think? 5 On 3 February 2006, the United States Congress approved a bill that repeals the Step 2 subsidy programme for upland cotton. The bill was signed into law on 8 February 2006, and took effect on 1 August

22 Under the Agreement on Agriculture, a Member's Total AMS commitments apply to the total value of non-exempt support in favour of agricultural producers (expressed as Current Total AMS), not to the value of support given to individual products. Members could thus increase support to a product as long as the Current Total AMS does not exceed the overall ceiling set by the Total AMS commitment level in that Member's Schedule. It should be noted however that only the provisions of the Agreement on Agriculture have been considered here. In order to provide a complete answer as to whether Member A's measures could be challenged, one would also need to bear in mind other WTO Agreements, especially the Agreement on Subsidies and Countervailing Measures and the GATT

23 V. NOTIFICATION OBLIGATIONS The levels of domestic support granted by Members vary considerably. Those Members that had high levels of support during the base period and established commitments to reduce the Total AMS have tended to continue giving high levels of support although some Members have shifted the emphasis from the Amber Box to the Blue and Green Boxes. Article 18.2 of the Agreement on Agriculture requires all Members to notify the extent of their domestic support measures to the Committee on Agriculture for its review. This requires: a listing of all measures that fit into the exempt categories (the Green Box, the development programmes, and direct payments under production-limiting programmes - the Blue Box); and calculations of Total AMS, including the de minimis claims, and a notification of the Current Total AMS for Members that have scheduled domestic support reduction commitments. Where a Member without such scheduled commitments has support measures which are not covered by the exempt categories, a notification must be made showing that such support falls within its de minimis levels. WTO Members are required to make annual notifications, except for LDC Members, which are required to notify every two years. Developing-country Members can also request the Committee to set aside the annual notification requirement for measures other than those falling into the Green Box, the development programmes or Blue Box categories. In addition to the annual notification obligations, all Members must notify any modifications of existing or any introduction of new measures in the exempt categories. The Committee on Agriculture examines these notifications regularly. Special formats have been developed by the Committee on Agriculture in order to facilitate compliance with the notification obligations. All Members with base and annual commitment levels in Section I of Part IV of their Schedule have to submit a notification no later than 90 days (or 120 days if the initial notification is provisional) after the end of the calendar (or, marketing, fiscal, etc.) year in question. Table DS:1 is a summary of the Current Total AMS calculation for the 12 month reporting period. Supporting Tables DS:1 to DS:9 contain the details of the calculation. Supporting Table DS:1 lists the Green Box measures exempt from reduction commitments. Under each of the headings in Annex 2, the Member is required to provide a brief description of each measure, the relevant paragraph of Annex 2, the value of the measure and the data source. Supporting Table DS:2: Developing country Members using the exemptions listed in Article 6.2 are required to list the measures under each of the three headings of Article 6.2 (investment subsidies, input subsidies and diversification from growing illicit narcotic crops) along with a brief description of the measures, their value and the data source. Supporting Table DS:3: Those Members availing themselves of the exemption from reduction commitments under Article 6.5 (Blue Box) for direct payments under production-limiting programmes must list, under each clause of Article 6.5, the programmes, their monetary value and the data source. 23

24 Supporting Table DS:4 contains the summary of the product-specific AMS and non-product-specific AMS with the relevant de minimis claims noted. Details of the individual elements are in other supporting tables. Supporting Table DS:5 covers data on market price support schemes for each product. This table covers for example intervention type schemes where the State buys products at certain minimum prices. The data must include the description of the basic product, the applicable year, the name of the measure, the applied administered price, the external reference price, the eligible production, any associated levies or fees and the total market price support for each product. Supporting Table DS:6 contains data on non-exempt direct payments. This normally covers deficiency payments schemes where farmers are paid the difference between the price they get on the market and the target price set by the government as well as other non-exempt direct payments that may not be related to price. Similar to Supporting Table DS:5, the data must include the basic product, the year, the name of the measure, the applied administered price, the external reference price, the eligible production, the total price related direct payments, other non-exempt direct payments, associated fees and the total value of direct payments for each product. Supporting Table DS:7: If there are any remaining product-specific subsidies they are included in this Supporting Table. This could include subsidies per hectare planted or per animal which are not related to price but are aimed at supporting production. Also included in Supporting Table DS:7 are the results from Supporting Tables DS:6 and DS:5 and the sum is called Total Product-specific AMS. Supporting Table DS:8 For market price support schemes where the price gap method of calculating the AMS is not practicable the EMS is calculated as set out in Annex 4 of the Agreement on Agriculture. This could include an intervention scheme of limited application or the cost of disposing of surpluses. The budgetary outlay associated with the scheme is usually used. Supporting Table DS:9 shows non-product-specific support provided in favour of agricultural producers in general. This includes for example credit subsidies or water subsidies. There is also a Table DS:2 for notifications under Article 18.3 of the Agreement on Agriculture. This Table is required to notify, on an ad-hoc basis, any new or modified domestic support measures exempt from reduction, i.e. measures under the Green Box, the Article 6.2 (development programmes) and the Blue Box. Table DS:2 notifications should be submitted for each new or modified measure exempt from reduction as far as practicable before such measures are adopted and in any event within 30 days of adoption. As most Members do not have domestic support measures other than those falling into the exempt categories, the annual notification requirements are in many cases not burdensome. However, they are effective in providing a basis for policy discussions within the Committee on Agriculture and serve a useful purpose in enabling governments to maintain an annual overview of support to their agricultural sectors. Caution should be exercised when examining the notifications as many Members notify in different currencies, which have been subject to varying exchange rate and inflation fluctuations. In addition, the size of the agriculture sectors varies between different Members and should be taken into account in any examination of domestic support data as should the structure of that support which is often concentrated in a few sectors. 24

25 EXERCISES: 9. How often are notifications on Domestic Support to be made and in what form? 25

26 VI. SUMMARY Members can use without limits the domestic support measures, which have no more than minimal trade distorting effects or effects on production, such measures are placed in a Green Box. They include subsidies for government services and certain direct payments to producers such as decoupled income support, disaster relief, structural adjustment assistance, payments under environmental programmes and regional assistance programmes. In addition to the Green Box policies, Members do not have to reduce: (1) direct payments under production-limiting programmes (Blue Box measures); (2) certain government assistance programmes to encourage agricultural and rural development in developing country Members (as listed in Article 6.2 of the Agreement on Agriculture); and (3) other support maintained within the de minimis levels. Domestic support measures that cannot be included in the above-mentioned exempt categories must be accommodated within the ceilings set by the Total Aggregate Measurement of Support (Total AMS) which are expressed in terms of Annual and Final Bound Commitment Levels. In the Uruguay Round, Members agreed to make the following reductions in the Total AMS as compared to the average during the base period of : developed country Members agreed to reduce the Total AMS by 20% during the six-year implementation period; developing country Members agreed to reduce the Total AMS by 13.3% over 10 years; least-developed countries were not required to make any cuts. The disciplines and commitments concerning domestic support are found in Articles 3, 6 and 7 as well as Annexes 2, 3, and 4 of the Agreement on Agriculture and, where relevant, in Section I of Part IV of a Member's Schedule. 26

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