4.355 Canada argued that market price support (“SPM”) was a term chosen as one of the elements to be used in the calculation of a comprehensive measure of domestic support by the AMS in the Agreement on Agriculture. The AmS should be a broad measure of state support to agricultural producers in order to develop reduction commitments. As such, it was and was a very one-off measure, not a rigorous measure of “subsidies” as they could otherwise be understood or defined. Thus, the MPS was a negotiated measurement instrument adopted for a specific purpose in the context of the negotiations on the Agreement on Agriculture. It was neither related nor related to any other concept of “price support” and, in particular, differed significantly from the term “price or income support within the meaning of Article XVI of the GATT 1994” as used in the SCM Agreement. By contrast, the use of the term “price or income support within the meaning of Article XVI of the GATT 1994” in the SCM Agreement was intended to include certain price support systems within the scope of the SCM Disciplines on Export Subsidies. This was based on similar objectives set out in the wording of Article XVI of the GATT 1994 itself. In this case, the term was limited to the specific circumstances set out in Interpretative Note 2 and Article XVI(3) and discussed in the 1960 Report of the Panel on Subsidies. Therefore, unlike MSPs, this term should be directly related to the term “grants”.

2.2 A subsidy limited to certain companies located in a specific geographical area under the jurisdiction of the granting authority must be specific. For greater certainty, the establishment or modification of tax rates of general application by all eligible levels of government will not be considered a specific subsidy within the meaning of this Agreement. 20.6. In critical circumstances where the authorities find, in the case of the subsidised product concerned, that injury that is difficult to repair is caused by massive imports of a product for which subsidies are granted or granted in accordance with the provisions of GATT 1994 and this Agreement within a relatively short period of time and where deemed necessary: In order to avoid the recurrence of such injury and to fix retroactively the countervailing duties on such imports, the definitive countervailing duties may be fixed on imports released for consumption at least 90 days before the date of application of the provisional measures. FN 36 – The term “countervailing duty” means a special duty levied to offset a subsidy granted directly or indirectly to the manufacture, manufacture or export of goods under Article VI(3) of the GATT 1994. 4.362 Canada noted that paragraph 3 of Article XVI states that “Parties should endeavour to avoid the use of subsidies for the export of primary products”. The second sentence then provided for stricter orders regarding the use of “such subsidies” in certain circumstances. Thus, both paragraphs 1 and 3 concerned “subsidies”, paragraph 3 concerned certain types of “subsidies”, i.e. subsidies for the export of primary products.

The fundamental principle of interpretation applicable in these circumstances was that the same term (e.B. “subsidy”) was to be interpreted uniformly when used in the same agreement. If the same term was used in a single article, the presumption in favour of a uniform interpretation was all the stronger. In the absence of instructions to the contrary, there was no reason to derogate from the meaning of the term “subsidy” in paragraph 1 of the use of the term “subsidy” in paragraph 3. Paragraph 1 referred to all “subsidies” and paragraph 3 referred to only some of those “subsidies”; these “subsidies”, which were export subsidies for primary products. However, any “subsidy” falling within the parameters of paragraph 3 was also a “subsidy” within the meaning of paragraph 1. 4.350 New Zealand also stated that Canada disputes that the special regime applicable to dairy classes constitutes a form of income or price support within the meaning of Article XVI of the GATT 1994. Article XVI:1, according to Canada, provides for a system whereby exports would be encouraged independently of market forces (paragraph 4.344). Here, too, Canada`s argument was largely based on its argument that milk exporters were responding to market signals rather than the incentives offered by the special regime for milk classes. The reality was different from a New Zealand perspective. The distribution of milk on the domestic or export market was not the decision of the producer (as explained in paragraphs 4.93 et seq.).

The milk was sold for export and not domestically, not in response to market signals, but in response to the determination of federal and provincial officials operating through CMSMC. Incidentally, this is not the incentive for the manufacturer. It was the exporter who received the support. Exporters were encouraged to export because they were protected from domestic prices, specifically the incentive to export regardless of the market conditions that Canada claimed were provided for in Article XVI. Members shall take all necessary measures to ensure that the imposition of countervailing duty 36/ on a product from the territory of one Member imported into the territory of another Member complies with Article VI of GATT 1994 and the provisions of this Agreement. Countervailing duties may be imposed only in the context of investigations initiated on 37 June and conducted in accordance with this Agreement and the Agreement on Agriculture. 26.1 The Committee shall consider new and complete notifications submitted in accordance with Article XVI,paragraph 1, of the GATT 1994 and Article 25(1) of this Agreement at extraordinary meetings held every three years. Applications filed in the meantime (notice of update) are considered at each regular meeting of the Committee. 251 Canada pointed out that Article XVI:B of the GATT 1994 stated in part that “a `primary product` within the meaning of Section B means any agricultural, forestry or fishery product or a mineral in its natural form or a mineral that has undergone processing normally necessary to prepare it for large-scale commercialization in international trade.” The Member State of importation or an association of traders and undertakings whose members produce the like product mainly in the territory of the importing Member. 27.6 Export competitiveness of a product exists when exports of that product by a developing country have reached a share of at least 3.25 per cent of world trade in that product for two consecutive calendar years.

Export competitiveness will be achieved either (a) on the basis of the communication of the developing country Member that has achieved export competitiveness, or (b) on the basis of a calculation made by the Secretariat at the request of a Member. For the purposes of this paragraph, a product shall be defined as a section title of the Nomenclature of the Harmonised System. The Committee shall review the application of this provision five years after the entry into force of the WTO Agreement. .

gepubliceerd op 28 januari 2022