"To examine, in the light of the relevant provisions of the covered agreements cited by the European Communities in document WT/DS212/4, the matter referred to the DSB by the European Communities in that document, and to make such findings as will assist the DSB in making the recommendations or in giving the rulings provided for in those agreements."4
"If there is no agreement on the panelists within 20 days after the date of the establishment of a panel, at the request of either party, the Director-General, in consultation with the Chairman of the DSB and the Chairman of the relevant Council or Committee, shall determine the composition of the panel by appointing the panelists whom the Director-General considers most appropriate in accordance with any relevant special or additional rules or procedures of the covered agreement or covered agreements which are at issue in the dispute, after consulting with the parties to the dispute. The Chairman of the DSB shall inform the Members of the composition of the panel thus formed no later than 10 days after the date the Chairman receives such a request."
"a change in ownership of all or part of a foreign enterprise or the productive assets of a foreign enterprise does not by itself require a determination by the administering authority that a past countervailable subsidy received by the enterprise no longer continues to be countervailable, even if the change in ownership is accomplished through an arm's-length transaction."89
– Articles 1.1, 10, 14(d) of the SCM Agreement insofar as these Articles require an authority to establish the existence of a financial contribution and benefit (and hence a countervailable subsidy);
– Footnote 36 to Article 10 of the SCM Agreement which provides that countervailing duties may only be imposed in order to offset a subsidy bestowed upon the manufacture, production or export of any merchandise, as provided for in Article VI:3 of GATT 1994;
– Article 19.1 of the SCM Agreement which in particular provides that a countervailing duty may only be imposed if the existence of a subsidy has first been determined ;
– Article 19.3 of the SCM Agreement which in particular requires investigating authorities promptly to establish an individual countervailing duty rate for new exporters who were not subject to the original investigation;90
– Article 19.4 of the SCM Agreement, which provides that no countervailing duty shall be levied on any imported product in excess of the amount of the subsidy found to exist calculated in terms of subsidization per unit of the subsidized and exported product;
– Article 21.1 of the SCM Agreement, which provides that a countervailing duty shall remain in force only as long as and to the extent necessary to counteract subsidization;
– Article 21.2 of the SCM Agreement, which in particular requires investigating authorities to determine whether there is a continuing need for the application of countervailing duties in the light of the information before it;
– Article 21.3 of the SCM Agreement, which in particular provides that countervailing duties are to expire after five years unless it is determined that the expiry of the duty would lead to continuation or recurrence of subsidization and injury;
– Article 32.5 of the SCM Agreement which requires Members to ensure the conformity of their laws, regulations and administrative procedures with the provisions of the SCM Agreement; and
– Article XVI.4 of the WTO Agreement, which requires Members to ensure the conformity of their laws, regulations and administrative procedures with their obligations as provided in the annexed Agreements.91.
– The United States should bring Section 1677(5)(F) into conformity with its WTO obligations;
– The United States should immediately revoke the sunset determinations in Cut-to-Length Carbon Steel Plate from United Kingdom (C-412-815) (Case No. 8) and Cut-to-Length Carbon Steel Plate from Germany (C-428-817) (Case No.10); and,
– The United States should immediately review or amend the remaining determinations brought before the Panel in the present dispute. In doing so, it should apply in good faith the findings of the Panel. If the privatization transactions which are the subject of this dispute have taken place for fair market value and at arm's length, then no more countervailing duties should be levied. In the event that the United States should find that the privatization transactions are not at fair market value and arm's length, the United States should determine that the subsidy amount is the difference between the price actually paid and the fair market value.94
"The Panel suggests that the US abandon its "same-person methodology" and replace it with another that involves (1) an examination of whether an exporter is in fact benefiting from a financial contribution and (2) provides that a sale of a state-owned company for fair market value and at arm's length means that the privatized company cannot be considered to benefit from any prior financial contribution to the State‑owned company."
– by not self-initiating reviews to reconsider change in ownership situations in light of the Appellate Body's report in US – Lead and Bismuth II, the United States has not acted inconsistently with its obligations under the SCM Agreement;
– the seven US Department of Commerce determinations (six investigations and one administrative review (Case Nos. 1-7) are inconsistent with the United States' obligations under the SCM Agreement only to the extent that US Department of Commerce did not fully examine whether the pre- and post-change in ownership entities involved were the same legal persons;
– the four US Department of Commerce sunset determinations (Case Nos. 8-11) are not inconsistent with the United States' obligations under the SCM Agreement;
– the GOES from Italy administrative review (Case No. 12) is not inconsistent with the United States' obligations under the SCM Agreement;
– the US change in ownership provision, Section 1677(5)(F) is not inconsistent with the United States' obligations under the SCM Agreement and the WTO Agreement; and
– the European Communities' claims regarding the expedited sunset review of the countervailing duty order on cut-to-length steel plate from Sweden are not within the Panel's terms of reference.98
"fair market value for all the productive assets, goodwill, etc., they acquired from BSC and subsequently used in the production of leaded bars imported into the United States in 1994, 1995, and 1996. We, therefore see no error in the panel's conclusion that, in the specific circumstances of this case, the "financial contribution" bestowed on BSC between 1977 and 1986 could not be deemed to confer a "benefit" on UES and BS plc/BSES."109
"the changes in ownership leading to the creation of UES and BS plc/BSES should have caused the US Department of Commerce to examine whether the production of leaded bars by UES and BS plc/BSES respectively, and not BSC, was subsidized."123 (emphasis added)
"The flaw in the lower court's analysis, plainly stated, is that the CVD law is not based upon principles of corporate law or property law. [T]he CVD law imposes two requirements before Commerce may countervail subsidies: (1) provision of a subsidy with respect to the manufacture, production, or exportation of a class or kind of merchandise; and (2) injury to the relevant US industry by imports of that class or kind of merchandise".148
"a sunset review is not the appropriate proceeding in which to examine a complicated privatization transaction and to consider new privatization methodology. In light of the complexity and fact-intensive nature of this issue, it is imperative that the issues be fully developed on the record."211
"The statute, however, does not charge any interested party with the ultimate burden of persuasion, or otherwise create a presumption that a countervailable subsidy is or is not likely to continue or recur if the order is revoked. …. Because there is no presumption as to the likelihood of continuation or recurrence it follows that there is no presumption that the countervailable subsidies will continue at the specific rate determined in the original investigation."219
"Section 771(5)(F) only acts to preserve the ability of the Department to exercise its discretion, and it accomplishes this goal by overturning the approach ordered in Saarstahl I, which had mandated that the Department find that an arm's-length transaction, in and of itself, precludes any pass-through to the purchaser."222
"… On 4 June 2002, the CIT ruled on AST's challenge to the US Department of Commerce's final determination of the administrative review. The Court remanded the case to the US Department of Commerce to 'further explain whether post-sale AST or KAI [the purchaser] become legally responsible for all of pre-sale AST's assets and liabilities.'259 The Court upheld the same person methodology as being consistent with Section 1677(5)(F), in particular with the US Court of Appeals for the Federal Circuit's decision in Delverde III."
"a change in ownership of all or part of a foreign enterprise or the productive assets of a foreign enterprise does not by itself require a determination by the administering authority that a past countervailable subsidy received by the enterprise no longer continues to be countervailable, even if the change in ownership is accomplished through an arm's-length transaction."294
"The term 'countervailing duty' shall be understood to mean a special duty levied for the purpose of offsetting any bounty or subsidy bestowed, directly or indirectly, upon the manufacture, production or export of any merchandise."
"A 'benefit' does not exist in the abstract, but must be received and enjoyed by a beneficiary or a recipient. Logically, a 'benefit' can be said to arise only if a person, natural or legal, or a group of persons, has in fact received something. The term "benefit", therefore, implies that there must be a recipient."316
"The United States argues, on the basis of footnote 36 to Article 10 of the SCM Agreement and Article VI:3 of the GATT 1994, that the relevant "benefit" is a benefit to a company's productive operations, rather than, as the Panel held, a benefit to legal or natural persons. It is true, as the United States emphasizes, that footnote 36 to Article 10 of the SCMAgreement and Article VI:3 of the GATT 1994 both refer to subsidies bestowed or granted directly or indirectly "upon the manufacture, production or export of any merchandise". In our view, however, it does not necessarily follow from this wording that the "benefit" referred to in Article 1.1(b) of the SCM Agreement is a benefit to productive operations."318