미국ㆍ유럽연합 대형 민간항공기 보조금 분쟁

Abstract

The United States and the European Union have been engaged in a series of high-profile subsidy disputes since 2004. These disputes involve large civil aircrafts that are manufactured by Boeing of the United States and Airbus of the EU. As the competition between the two corporations in the international market intensifies,the two countries criticized each other of providing illegal subsidization in many forms to Boeing and Airbus, respectively. Ultimately both of the countries brought an action at the WTO against each other. The WTO panel in the dispute where the United States is the complainant (EC-LCA) issued a decision last June. The panel found that the subsidization program of the EU and its member states generally constitute illegal subsidies within the meaning of Articles 1 and 2 of the SCM Agreement. The decision of the panel in EC-LCA discusses a wide range of important issues. In particular, two issues attracted attention of the international community in this respect: one is the definition and scope of the general infrastructure under Article 1.1(a)(1)(iii) of the SCM Agreement and the other is the de facto export subsidy contingency determination. Regarding the first issue, the two sides presented different views regarding the definition and scope of the term “general infrastructure.” This term sets forth an important concept because the SCM Agreement carves out general infrastructure from the definition of the financial contribution by the government, hence from the scope of the SCM Agreement. The EU proposed a definition where the term “general infrastructure” carries a categorical meaning which excludes certain types of infrastructure establishment program from the SCM Agreement categorically, so that countries’ discretion to administer their social development programs are not interfered. On the other hand, the United States proposed a definition where the term “general” and “infrastructure” are separately interpreted, so that only certain infrastructure at a particular point in time can fall under the scope of the Article 1.1(a)(1)(iii). The panel mainly accepted the U.S. position on this issue. The panel’s approach,however, poses a serious concern that undermines the structure of the SCM Agreement and restricts the legitimate authority of the Members’ governments to develop their social infrastructure programs. The second issue presented was about how to confirm the de facto export contingency under Article 3.1 of the SCM Agreement. The panel ruled that a wide range of circumstantial evidence can be considered in the totality of circumstances analysis in the course of finding de facto export contingency. This is a departure from the traditional concept of “tied to,” which means that the de facto export contingency should only be found when the actual or the provision of the subsidy are directly tied to the anticipated export performance. The new standard lowers the bar in confirming the de facto export contingency. The panel’s decision raises concern on the part of many countries. This dispute raises various issues that may directly affect Korea’s trade interest in the future because Korea has been implicated in various subsidy disputes recently. A closer scrutiny of the decision from the Appellate Body in the appeal of the EC-LCA and the decision from the panel and the Appellate Body in U.S.-LCA is in necessary.