June 9, 2017: It never ends.
Airbus and Boeing each claimed wins in yet another round at the World Trade Organization.
This time, it’s over whether the EU and US complied with earlier findings about compliance is curing illegal subsidies.
Within minutes or each other, the two companies issued press releases claiming victory.
We’ve reprinted both releases in their entirety below, in alphabetical order.
WTO condemns Boeing’s non-compliance and new subsidies
· Today’s WTO compliance panel report finds Boeing subsidies causing Airbus to lose hundreds of aircraft sales with an estimated value of US$ 15-20 billion
· Illegal subsidies to Boeing have, over time, resulted in over US$100 billion in total lost sales for Airbus
· Harm to Airbus will only increase if dispute is pushed out further, in case of likely U.S. appeal
Toulouse, France, June 9th – The United States has failed to comply with WTO rulings in the more than decade-long ongoing transatlantic battle over commercial aircraft subsidies. This was reported today by the World Trade Organization’s (WTO) Compliance Panel in the DS353 dispute (EU vs U.S.), which relates to billions of dollars in subsidies granted to The Boeing Company.
In March 2012, the WTO’s Dispute Settlement Body ruled that a number of subsides provided by the U.S. to Boeing were illegal, and were to be withdrawn within six months, or alternatively that their adverse effects were to be removed. In September 2012, the U.S. claimed that it had taken all necessary steps to achieve compliance. Today, the EU prevailed in demonstrating the continuing existence of a number of illegal subsidies, including R&D support provided by NASA and the Department of Defense (DoD), and the multi-billion dollar tax breaks from Washington State. The EU has also prevailed in demonstrating continuing adverse effects caused by some of those subsidies.
For a further five years, and by failing to comply with the WTO rulings, the U.S. has continued to provide tremendous benefits to Boeing in the form of unfair and anti-competitive subsidies, resulting in an additional loss of sales of at least 300 aircraft, with an estimated value of US$ 15-20 billion.
In total, combining this with the WTO’s ruling at the end of 2016 in the DS487 dispute, addressing the illegal subsidies for the 777X, as well as prior rulings in DS353, the total impact of the subsidies is estimated to add up to US$ 100 billion in lost sales to Airbus.
Tom Enders, CEO of Airbus, stated: “The amount of money involved completely distorts trade. There is absolutely no place for these unfair and anti-competitive practices in today’s modern and dynamic global marketplace, and the WTO should make it clear that no government or company can escape from their international responsibilities”.
Enders added: “I salute the EU for what again is a great victory for fair trade in commercial aviation. The clarity provided by the WTO in continuous rulings over a decade is impressive and far reaching: First, the WTO stated that the US subsidy system provides largely for illegal grants while the European reimbursable launch investment system based on loans is principally compliant with international trade law. Today, the WTO panel has demonstrated how Boeing continues to seek the benefits from this extensive illegal support, at the great expense of a level playing field in the worldwide aviation industry.”
After the original ruling was published in 2012, the U.S. further increased their subsidies to Boeing, with measures such as the provision of incentives for the production of the 787 in South Carolina, U.S. Federal Aviation Administration funded R&D programmes, increased tax reductions from Washington State, and the award of additional NASA and DOD R&D funding and support. Today, the Panel agreed with the EU that it was correct for these additional measures to be included within the scope of the proceedings.
The Panel found that the non-withdrawn subsidies continue to cause adverse effects in the form of significant lost sales for Airbus. In particular, the Panel found that the B&O tax reductions from Washington State caused Airbus to lose at least US$ 16 billion worth of sales to Boeing. This finding could ultimately lead to the imposition of billions of dollars worth of trade sanctions against the U.S.
It is expected that today’s ruling will be appealed. However, there is no indication that U.S. arguments will be any different from the ones advanced before, despite the clear position of the WTO. With the additional time the U.S. will be buying with any such appeal, the harm to Airbus caused by subsidies will only continue to increase.
Fabrice Bregier, COO of Airbus, commented: “Over the course of this seemingly never-ending dispute with Boeing, it has become very clear that Boeing is using these cases for PR and Lobbying purposes rather than enabling a serious discussion on a level playing field in the commercial aircraft sector. That is not only regrettable but will soon be seen as a shot in their own foot in light of the current and future competitive environment in our industry.”
The first half of 2017 has seen the large commercial aircraft market move into unchartered territory. While we saw the first flights of new market entrants C919 and MC-21 took place, Boeing filed a local trade remedies petition at the US International Trade Commission against Bombardier, with the intention to exclude the C Series from the U.S. market.
“It seems to be clear that Boeing is doing all it can to maintain the status-quo from which it has illegally profited for all these years. Airbus looks forward to the day that this ridiculous dispute can be put to bed and we can focus our full attention on investing in further innovation and engaging in healthy competition,” Bregier added.
Airbus would like to take this opportunity to congratulate the European Commission and the governments of France, Germany, the UK, and Spain for their continued success at the WTO. Airbus is extremely grateful for the inordinate number of man-hours and immense effort which have been invested in this dispute so far.
Relevant References to the Report:
Quotes From the DS353 Panel Repor
Para. # |
Quote |
Subsidy Findings |
|
8.50 |
“{T}he amendments made by the United States through the Boeing Patent Licence Agreements to the terms of the pre-2007 NASA procurement contracts and DOD assistance instruments that were the subject of the DSB recommendations and rulings in the original proceeding do not constitute a withdrawal of the subsidy, within the meaning of Article 7.8 of the SCM Agreement.” |
8.131 |
“{D}espite the United States’ assertions to the contrary, advancing the competitiveness of the U.S. aviation industry remains an important objective for NASA’s aeronautics R&D activities.” |
8.151 |
“NASA essentially commissions Boeing to perform research that NASA hopes will, among other things, support and advance the competitive interests of the U.S. aeronautics industry.” |
8.157, 8.353 |
“{T}he payments and provision of access to {NASA and DOD} facilities, equipment, and employees to Boeing through {post-2006 NASA procurement contracts and post-2006 DOD assistance instruments} constitute financial contributions within the meaning of Article 1.1(a)(1) of the SCM Agreement. Specifically, the payments provided by {NASA and DOD} constitute financial contributions as a direct transfer of funds within the meaning of Article 1.1(a)(1)(i), and the provision of access to facilities, equipment, and employees qualifies as a government provision of goods or services other than general infrastructure within the meaning of Article 1.1(a)(1)(iii) of the SCM Agreement.” |
8.536-8.537 |
Similar to NASA procurement contracts and DOD assistance instruments, “the allocation of intellectual property rights under the Boeing {FAA} CLEEN Agreement is more favourable to Boeing than the corresponding allocations to commissioned parties under the private collaborative R&D agreements before the Panel.” |
8.850(b) |
“{T}he payments made by South Carolina pursuant to commitments in the Project Gemini Agreement to compensate Boeing for a portion of the costs incurred by Boeing in respect of the construction of the Gemini facilities and infrastructure through air hub bond proceeds involve a specific subsidy within the meaning of Articles 1 and 2 of the SCM Agreement, in the amount of USD 50 million.” |
8.1046 |
“{T}here is evidence to support the view that the challenged {sales and use tax} exemptions {for aircraft fuel, computer equipment, and construction materials} were tailored specifically for Boeing: the eligibility criteria for the three challenged exemptions precisely match Boeing’s South Carolina commitments; the exemptions themselves seem tailor-made to the circumstances of Boeing’s operations in South Carolina; the notification deadlines for the use of the exemptions are set to coincide with the beginning of Boeing’s Gemini operations in South Carolina; and certain statements by South Carolina authorities suggest that the exemptions were designed for Boeing.” |
9.388 |
“The combined amounts of the Washington State and City of Everett B&O tax rate reductions over the {2004-2006} three year period was USD 16 million. … {T}he amounts of the Washington State B&O tax rate reduction have increased significantly from the amounts that were found to exist in the 2004-2006 reference period in the original proceeding. We estimate the total amount of the Washington State B&O tax rate reduction to be approximately USD 325 million over the equivalent three year period 2013 – 2015”. |
Adverse Effects |
|
9.384 and footnote 3276 |
The US subsidies “contributed in a genuine and substantial way to the lowering of Boeing’s prices of narrow-body, single-aisle LCA in five LCA sales campaigns {Fly Dubai 2008, Delta 2011, Icelandair 2013, Air Canada 2013, and Fly Dubai 2014} between 2007 and 2015”. |
9.404 |
The US subsidies, “through the effects on Boeing’s pricing, contributed in a genuine and substantial way to determining the outcome of price-sensitive sales campaigns involving the 737 MAX and 737NG and the A320neo and A320ceo in the Fly Dubai 2014, Air Canada 2013 and Icelandair 2013 campaigns. Accordingly, we consider that the effects of the Washington State B&O tax rate reduction were lost sales of the A320neo and A320ceo in the Fly Dubai, Air Canada, and Icelandair sales campaigns in the 2013-2015 period”. |
9.407 |
The US subsidies are “a genuine and substantial cause of serious prejudice in the form of significant lost sales of A320neo and A320ceo families of LCA in the post-implementation period, in respect of the sales campaigns Fly Dubai 2014, Air Canada 2013, and Icelandair 2013”. |
9.438 |
The effect of the US subsidies “is a threat of impedance of imports of Airbus single-aisle LCA into the United States market”. |
9.443 |
“We conclude, based on the evidence concerning market share trends in the United Arab Emirates market and the evidence of these lost sales, that the effect of the {US subsidies} is a threat of impedance in the United Arab Emirates market in the post-implementation period.” |
9.444 |
“We find that the {US subsidies are} a genuine and substantial cause of serious prejudice to the interests of the European Union in the form of a threat of impedance of imports of the A320ceo to the United States market, within the meaning of Article 6.3(a) of the SCM Agreement, and in the form of a threat of impedance of Airbus single-aisle exports to the United Arab Emirates, within the meaning of Article 6.3(b) of the SCM Agreement, in each case, in the post implementation period.” |
Conclusions and Recommendations |
|
11.7(a) |
“{W}ith regard to pre-2007 NASA and DOD aeronautics R&D subsidies that were the subject of the DSB recommendations and rulings, the European Union has established that the modifications made by the United States through the Boeing Patent Licence Agreements to the terms of the pre-2007 NASA procurement contracts and DOD assistance instruments do not constitute a withdrawal of the subsidy within the meaning of Article 7.8 of the SCM Agreement and that the United States, having taken no action in respect of pre-2007 Space Act Agreements, has failed to withdraw the subsidy within the meaning of Article 7.8 of the SCM Agreement.” |
11.7(b) |
“{W}ith regard to the post-2006 measures of the United States challenged in this proceeding, the European Union has established that the following measures involve specific subsidies within the meaning of Articles 1 and 2 of the SCM Agreement, and that by granting or maintaining these specific subsidies after the end of the implementation period, the United States has failed to withdraw the subsidy within the meaning of Article 7.8 of the SCM Agreement: i. certain transactions between NASA and Boeing pursuant to post-2006 NASA procurement contracts, cooperative agreements, and Space Act Agreements …; ii. certain transactions between DOD and Boeing pursuant to post-2006 DOD assistance instruments …; iii. transactions pursuant to the Boeing CLEEN Agreement …; iv. Washington State B&O tax rate reduction for the aerospace industry …; v. Washington State B&O tax credits for preproduction/aerospace product development …; vi. Washington State B&O tax credit for property taxes …; vii. Washington State sales and use tax exemptions for computer software, hardware, and peripherals …; viii. City of Everett B&O tax rate reduction …; ix. payments made by South Carolina pursuant to commitments made in the Project Gemini Agreement to compensate Boeing for a portion of the costs incurred by Boeing in respect of the construction of the Gemini facilities and infrastructure through air hub bond proceeds …; x. South Carolina property tax exemption for Boeing’s large cargo freighters …; xi. South Carolina sales and use tax exemptions for aircraft fuel, computer equipment, and construction materials{.}” |
9.487(b) |
“The European Union has established that the {US subsidies} granted or maintained by the United States after the end of the implementation period and benefiting the 737 MAX and 737NG, causes serious prejudice to the interests of the European Union, within the meaning of Articles 5(c) and 6.3 of the SCM Agreement, in the form of: (i) significant lost sales of the A320neo and A320ceo families in the post implementation period in respect of the sales campaigns for Fly Dubai 2014, Air Canada 2013 and Icelandair 2013; and (ii) a threat of impedance of imports of the A320ceo to the United States market and of exports of Airbus single-aisle aircraft to the United Arab Emirates. In this respect, the United States has failed to take appropriate steps to remove the adverse effects, within the meaning of Article 7.8 of the SCM Agreement, and has failed to comply with the recommendation adopted by the DSB in the original proceeding in this dispute”. |
11.8(c) |
“{T}he European Union has established that the effects of the {US subsidies} are a genuine and substantial cause of significant lost sales within the meaning of Articles 5(c) and 6.3(c) of the SCM Agreement of A320neo and A320ceo families of LCA in the single-aisle LCA market, in respect of the sales campaigns for Fly Dubai in 2014, Air Canada in 2013, and Icelandair in 2013, in the post-implementation Period”. |
11.8(d) |
“{T}he European Union has established that the effects of the {US subsidies} are a genuine and substantial cause of a threat of impedance of imports of the A320ceo to the United States single-aisle market, and a threat of impedance of exports of Airbus single-aisle LCA in the United Arab Emirates third country market, within the meaning of Articles 5(c) and 6.3(a) and (b) of the SCM Agreement in the post-implementation period”. |
11.10 |
“In light of the foregoing, we conclude that by continuing to be in violation of Articles 5(c) and 6.3(a), (b), and (c) of the SCM Agreement, the United States has failed to comply with the DSB recommendations and rulings and, in particular, the obligation under Article 7.8 of the SCM Agreement to ‘take appropriate steps to remove the adverse effects or … withdraw the subsidy’”. |
11.11 |
“We conclude that, to the extent that the measures at issue are inconsistent with the SCM Agreement, they have nullified or impaired the benefits accruing to the European Union under that Agreement”. |
11.12 |
“We therefore conclude that the United States has failed to implement the DSB recommendations and rulings to bring its measures into conformity with its obligations under the SCM Agreement. To the extent that the United States has failed to comply with the DSB recommendations and rulings in the original dispute, those recommendations and rulings remain operative.” |
CHICAGO, June 9, 2017 /PRNewswire/ — Boeing (NYSE: BA) today commended the Office of the U.S. Trade Representative (USTR) for achieving another significant win in the long-running dispute between the United States and the European Union (EU) over aerospace subsidies.
“Today, the EU and Airbus suffered yet another resounding defeat in this decade-long dispute. It is finally time for them to comply with their global trade obligations and eliminate and remedy the $22 billion of launch aid and other illegal subsidies that are harming U.S. aerospace companies and American workers,” said Boeing General Counsel J. Michael Luttig.
The World Trade Organization (WTO) confirmed that the United States has complied with virtually all of the WTO’s decision in the counter-case the EU filed against the United States in 2006. The EU and Airbus claimed in this case that Boeing benefitted from tens of billions of dollars of subsidies and focused their arguments on research and development contracts that Boeing received from the National Aeronautics and Space Administration and the Department of Defense.
“The WTO again categorically rejected Europe’s and Airbus’ claims. The WTO originally dismissed 80 percent of the allegations the EU first made, and today stated unequivocally that the United States has complied with virtually all of the WTO’s findings on the remaining amount,” Luttig said.
In addition to holding that the U.S. had complied with its prior ruling concerning various U.S. government research and development contracts with Boeing, the WTO today also dismissed EU claims against the investment incentives Boeing received in South Carolina, other older state and local tax incentives, the FAA CLEEN program, and seven of eight tax incentives from Washington State.
“Today’s ruling on U.S. compliance stands in sharp contrast to the WTO’s finding last September that the EU had done virtually nothing to comply with the WTO’s decision against the illegal, market-distorting launch aid subsidies provided to Airbus for 40 years. On top of that, the WTO also found that the EU has continued to make even more illegal subsidies to Airbus by providing launch aid to yet another product, the A350,” Luttig continued.
“The United States and Boeing are committed to abiding by WTO rules and proving it with action. It’s time now that the EU and Airbus step up to their WTO obligations – or face significant U.S. sanctions in the year ahead,” he said.
Under WTO rules, tariffs for non-compliance are levied based upon the harm the subsidies are causing annually, which USTR in this case estimates is in the $7-10 billion range.
“Airbus and its government sponsors have come to the end of the road. The WTO has now said the EU has provided Airbus $22 billion in illegal subsidies and they have refused to eliminate or remedy those illegal subsidies, as they are required to do. The WTO has also now said that the US is virtually in full compliance with its obligations and the WTO’s rulings. It is past time for the EU and Airbus to comply with the WTO’s rulings,” Luttig said.
Luttig also stressed the vast difference in the WTO subsidy findings against the United States versus Europe. The sole remaining investment incentives found to be inconsistent with the WTO rules—a reduction in Washington state’s business and occupancy tax rate for aerospace—amount to a cut in the tax to be paid of around $100 million a year. In contrast, the WTO has found repeatedly that Airbus has benefitted from $22 billion in illegal EU subsidies
Dominic Gates of The Seattle Times has this story.
The Wall Street Journal story is here.
The full document is here.
I think it is called perspective
Yes, two different worlds 🙂
It seems clear that Boeing is in violating
I don’t get the NASA and support of aeronautics research?
That’s what NASA is setup for.
I believe Europe has a wide variety of research in those areas and for that purpose as well. ?
And its peanuts compared to the Washing State 8 billion cash back for the share holders (whee hoo, we won the lottery)
Charleston of course
But then we should mention Alabama.
I think the gripe about Nasa is that its specifically advancing Boeings commercial interests
EU has its own aeronautical research program, which is something like Eu4 bill over 4 years
http://www.cleansky.eu/
Regarding NASA subsidies, see the following quote from the Seattle Times article that Mr. Hamilton posted a link to.
“Airbus spun the new ruling against its U.S. rival as much wider than Boeing claimed. The European jetmaker said incentives from the state of South Carolina for the production of the 787, FAA research funding and additional NASA and Defense Department research money were all ruled to be subsidies.
In response, Boeing Vice President Austell dismissed the Airbus position as a deceptive legalism.
He said the panel ruled these other subsidies had not caused adverse effects on Airbus — and so they are not illegal under WTO rules.
Austell said the sole subsidy ruled to have had adverse effects and not already remedied by the U.S. was the Washington state B&O tax reduction.”
From the article at the link below.
“The U.S. International Trade Commission voted 5 to 0 in favor of a preliminary finding that says Bombardier’s trade practices are causing injury to Boeing and the domestic aircraft sector.”
http://www.politico.com/story/2017/06/09/boeing-us-canada-trade-bombadier-239355
Is it a coincidence that the WTO bureaucracy coughed up some results on the day that the ITC’s public schedule said they would be voting? Was the WTO trying to preserve some pretense that they are actually capable of reaching a final resolution in some period of time that is short compared to the human lifespan or the lifetime of a line of commercial aircraft?
Turn it around.
A feel good move from US institutions to counter the WTO release of findings. ( those just don’t come up “unexpected”.)
From the Reuters press service article at the link below.
“The U.S. International Trade Commission on Friday gave a green light to the U.S. Commerce Department to begin preparing anti-dumping and anti-subsidy duties against new jets from Canada’s Bombardier Inc based on claims by U.S. rival Boeing.
The ITC, as expected, voted to continue an investigation on Boeing Co’s (BA.N) complaint that Bombardier (BBDb.TO) dumped its CSeries jet below cost in the U.S. market while benefiting from unfair subsidies.”
“The Commerce Department must now determine any preliminary anti-subsidy duties by around July 22, with a deadline for preliminary anti-dumping duties around Oct. 3.
The ITC will have a final say on whether to reject any duties.”
“In a separate ruling, the World Trade Organization largely cleared the United States of unfairly supporting Boeing, but noted it had failed to withdraw a tax break in Washington state, where Boeing builds most of its aircraft.”
https://www.reuters.com/article/us-boeing-bombardier-idUSKBN19029C
I don’t see that.
They clearly said certain US Government subsidies continued.
They clearly said the 8 Billion dollar Washington State deal violated and had not been addressed.
They clearly said that Charleston was in violation.
Just the 8 Billion Tax Dodge swamps all other aspects in % terms.
The Reuters thing was about the US Dumping, not the WTO.
Hello TransWorld,
When I click on the Reuters link that I posted, I see a story that is mostly about the US ITC’s vote on the Boeing vs. Bombardier case today, but concludes with a paragraph on the WTO’s latest ruling in the Boeing Airbus dispute.
Hello TransWorld,
Who is the”they” that you are referring to that clearly “said the 8 billion Washington State deal violated and had not been addressed? According to the Seattle Times article that Mr. Hamilton has posted a link to, the WTO has ruled that only 1 of the 29 state and federal programs that the EU and Airbus challenged in the complaint that was the subject of the ruling that the article is primarily about, was improper under WTO rules, and the improper program was a B and O (Business and Occupations) tax reduction worth 800 million (i.e. 0.8 billion) dollars. According to the same article 22 billion dollars of Airbus launch aid has tentatively been ruled improper by the WTO. See the quotes below from the article.
“The World Trade Organization (WTO) on Friday ruled that the U.S. has suitably addressed all but one piece of the European Union’s case alleging that Boeing receives illegal subsidies.
As the years-long legal process enters its final chapters, the lingering trouble lies in the biggest slice of Washington state’s aerospace tax incentives.
“A WTO panel adjudicating U.S. compliance with previous rulings found that, while all other Boeing subsidies have been remedied, the state’s aerospace business tax rate reduction — worth about $800 million to Boeing since 2004 through last year — remains illegal and must still be fixed.”
“U.S. government and Boeing officials spun the outcome as a victory because the other 28 state and federal funding programs challenged as subsidies in the dispute, amounting to an alleged $10.4 billion in subsidies to Boeing, have been addressed and are now resolved.
“The panel found that 28 of the 29 programs were consistent with WTO rules,” the U.S. Trade Representative said in a statement.”
“Last year, Boeing saved a total of $242 million from the total package of state tax incentives, including B&O tax credits for property leases and investments in pre-production equipment and a sales and use tax exemption.
However, these other tax incentives are no longer an active part of the WTO dispute panel’s remit. It’s only the $800 million Boeing has saved from the B&O rate reduction that is still in dispute.
This compares with $22 billion in Airbus launch aid — government loans used to fund development of new airplanes — that remain in dispute following the corresponding ruling last September in the parallel WTO suit against the EU.
That case, filed more than a year before the case against Boeing, is closer to an endpoint.
Bob Novick, former general counsel to the U.S. Trade Representative and now outside counsel to Boeing, said the appeal in that case against the EU should be decided this year, after which the U.S. government can begin the process of taking retaliatory trade measures.
“The U.S. is headed for the right to retaliate,” said Novick. “It’s coming very soon.”
“Airbus spun the new ruling against its U.S. rival as much wider than Boeing claimed. The European jetmaker said incentives from the state of South Carolina for the production of the 787, FAA research funding and additional NASA and Defense Department research money were all ruled to be subsidies.
In response, Boeing Vice President Austell dismissed the Airbus position as a deceptive legalism.
He said the panel ruled these other subsidies had not caused adverse effects on Airbus — and so they are not illegal under WTO rules.
Austell said the sole subsidy ruled to have had adverse effects and not already remedied by the U.S. was the Washington state B&O tax reduction.”
Maybe the $8 billion figure you are mention refers to the following claims by the EU, which as far as I know, have yet to be ruled on be the WTO. If the WTO operates at its historical speed, definitive rulings can be expected in the next decade.
“The EU also filed a another WTO case in 2015, challenging the additional $8.7 billion in tax incentives granted in 2013 by the state of Washington to ensure Boeing built the forthcoming 777X jet in Everett.
With the original 787 tax reductions now confirmed as illegal and needing to be addressed, presumably that second EU case over the 777X tax breaks will have a similar outcome.”
If the EU’s prior 10.4 billion complaint resulted in $800 million ultimately being ruled improper by the WTO, would not a “similar outcome” for the EU’s newer $8.7 billion complaint be (.8/10.4) x 8 billion = 615 million being ruled improper?
AP-Robert, I believe you are correct about the “$8 billion” not being part of this WTO ruling because it is too “new” and is part of another dispute.
Having said that, your supposition that the new subsidy will likely (in another decade) be watered down to $800 million may not be valid. I will propose another mathematical equation for you to consider… The “new” Washington State subsidy is essentially identical in form (though larger in number) to the “old” one that was ruled as illegal, so the appropriate outcome from a legal perspective would be for the WTO to eventually rule that 100% of this amount (not the 10% you suggest) is an illegal subsidy.
“alternative facts”.
Boeing threw down the card used by U.S. Counselor to the President Kellyanne Conway.