1、Page 229AGREEMENT ON SUBSIDIES AND COUNTERVAILING MEASURESMembers hereby agree as follows:PART I: GENERAL PROVISIONSArticle 1Definition of a Subsidy1.1 For the purpose of this Agreement, a subsidy shall be deemed to exist if:(a)(1) there is a financial contribution by a government or any public body
2、 within the territoryof a Member (referred to in this Agreement as “government“), i.e. where:(i) a government practice involves a direct transfer of funds (e.g. grants, loans,and equity infusion), potential direct transfers of funds or liabilities (e.g. loanguarantees);(ii) government revenue that i
3、s otherwise due is foregone or not collected (e.g.fiscal incentives such as tax credits)1;(iii) a government provides goods or services other than general infrastructure, orpurchases goods;(iv) a government makes payments to a funding mechanism, or entrusts or directsa private body to carry out one
4、or more of the type of functions illustrated in(i) to (iii) above which would normally be vested in the government and thepractice, in no real sense, differs from practices normally followed bygovernments;or(a)(2) there is any form of income or price support in the sense of Article XVI of GATT 1994;
5、and(b) a benefit is thereby conferred.1.2 A subsidy as defined in paragraph 1 shall be subject to the provisions of Part II or shall besubject to the provisions of Part III or V only if such a subsidy is specific in accordance with theprovisions of Article 2.1In accordance with the provisions of Art
6、icle XVI of GATT 1994 (Note to Article XVI) and the provisions of AnnexesI through III of this Agreement, the exemption of an exported product from duties or taxes borne by the like product whendestined for domestic consumption, or the remission of such duties or taxes in amounts not in excess of th
7、ose which haveaccrued, shall not be deemed to be a subsidy.Page 230Article 2Specificity2.1 In order to determine whether a subsidy, as defined in paragraph 1 of Article 1, is specific toan enterprise or industry or group of enterprises or industries (referred to in this Agreement as “certainenterpri
8、ses“) within the jurisdiction of the granting authority, the following principles shall apply:(a) Where the granting authority, or the legislation pursuant to which the granting authorityoperates, explicitly limits access to a subsidy to certain enterprises, such subsidy shallbe specific.(b) Where t
9、he granting authority, or the legislation pursuant to which the granting authorityoperates, establishes objective criteria or conditions2 governing the eligibility for, andthe amount of, a subsidy, specificity shall not exist, provided that the eligibility isautomatic and that such criteria and cond
10、itions are strictly adhered to. The criteriaor conditions must be clearly spelled out in law, regulation, or other official document,so as to be capable of verification.(c) If, notwithstanding any appearance of non-specificity resulting from the applicationof the principles laid down in subparagraph
11、s (a) and (b), there are reasons to believethat the subsidy may in fact be specific, other factors may be considered. Such factorsare: use of a subsidy programme by a limited number of certain enterprises, predominantuse by certain enterprises, the granting of disproportionately large amounts of sub
12、sidyto certain enterprises, and the manner in which discretion has been exercised by thegranting authority in the decision to grant a subsidy.3 In applying this subparagraph,account shall be taken of the extent of diversification of economic activities withinthe jurisdiction of the granting authorit
13、y, as well as of the length of time during whichthe subsidy programme has been in operation.2.2 A subsidy which is limited to certain enterprises located within a designated geographical regionwithin the jurisdiction of the granting authority shall be specific. It is understood that the setting orch
14、ange of generally applicable tax rates by all levels of government entitled to do so shall not be deemedto be a specific subsidy for the purposes of this Agreement. 2.3 Any subsidy falling under the provisions of Article 3 shall be deemed to be specific.2.4 Any determination of specificity under the
15、 provisions of this Article shall be clearly substantiatedon the basis of positive evidence.2Objective criteria or conditions, as used herein, mean criteria or conditions which are neutral, which do not favour certainenterprises over others, and which are economic in nature and horizontal in applica
16、tion, such as number of employees or sizeof enterprise.3In this regard, in particular, information on the frequency with which applications for a subsidy are refused or approvedand the reasons for such decisions shall be considered.Page 231PART II: PROHIBITED SUBSIDIESArticle 3Prohibition3.1 Except
17、as provided in the Agreement on Agriculture, the following subsidies, within the meaningof Article 1, shall be prohibited:(a) subsidies contingent, in law or in fact4, whether solely or as one of several otherconditions, upon export performance, including those illustrated in Annex I5;(b) subsidies
18、contingent, whether solely or as one of several other conditions, upon theuse of domestic over imported goods.3.2 A Member shall neither grant nor maintain subsidies referred to in paragraph 1.Article 4 Remedies4.1 Whenever a Member has reason to believe that a prohibited subsidy is being granted or
19、 maintainedby another Member, such Member may request consultations with such other Member.4.2 A request for consultations under paragraph 1 shall include a statement of available evidencewith regard to the existence and nature of the subsidy in question.4.3 Upon request for consultations under para
20、graph 1, the Member believed to be granting ormaintaining the subsidy in question shall enter into such consultations as quickly as possible. Thepurpose of the consultations shall be to clarify the facts of the situation and to arrive at a mutuallyagreed solution.4.4 If no mutually agreed solution h
21、as been reached within 30 days6 of the request for consultations,any Member party to such consultations may refer the matter to the Dispute Settlement Body (“DSB“)for the immediate establishment of a panel, unless the DSB decides by consensus not to establish apanel.4.5 Upon its establishment, the p
22、anel may request the assistance of the Permanent Group of Experts7(referred to in this Agreement as the “PGE“) with regard to whether the measure in question is aprohibited subsidy. If so requested, the PGE shall immediately review the evidence with regard to4This standard is met when the facts demo
23、nstrate that the granting of a subsidy, without having been made legally contingentupon export performance, is in fact tied to actual or anticipated exportation or export earnings. The mere fact that a subsidyis granted to enterprises which export shall not for that reason alone be considered to be
24、an export subsidy within the meaningof this provision. 5Measures referred to in Annex I as not constituting export subsidies shall not be prohibited under this or any other provisionof this Agreement.6Any time-periods mentioned in this Article may be extended by mutual agreement.7As established in A
25、rticle 24.Page 232the existence and nature of the measure in question and shall provide an opportunity for the Memberapplying or maintaining the measure to demonstrate that the measure in question is not a prohibitedsubsidy. The PGE shall report its conclusions to the panel within a time-limit deter
26、mined by the panel.The PGEs conclusions on the issue of whether or not the measure in question is a prohibited subsidyshall be accepted by the panel without modification.4.6 The panel shall submit its final report to the parties to the dispute. The report shall be circulatedto all Members within 90
27、days of the date of the composition and the establishment of the panels termsof reference.4.7 If the measure in question is found to be a prohibited subsidy, the panel shall recommend thatthe subsidizing Member withdraw the subsidy without delay. In this regard, the panel shall specifyin its recomme
28、ndation the time-period within which the measure must be withdrawn. 4.8 Within 30 days of the issuance of the panels report to all Members, the report shall be adoptedby the DSB unless one of the parties to the dispute formally notifies the DSB of its decision to appealor the DSB decides by consensu
29、s not to adopt the report.4.9 Where a panel report is appealed, the Appellate Body shall issue its decision within 30 daysfrom the date when the party to the dispute formally notifies its intention to appeal. When the AppellateBody considers that it cannot provide its report within 30 days, it shall
30、 inform the DSB in writing ofthe reasons for the delay together with an estimate of the period within which it will submit its report.In no case shall the proceedings exceed 60 days. The appellate report shall be adopted by the DSBand unconditionally accepted by the parties to the dispute unless the
31、 DSB decides by consensus notto adopt the appellate report within 20 days following its issuance to the Members.84.10 In the event the recommendation of the DSB is not followed within the time-period specifiedby the panel, which shall commence from the date of adoption of the panels report or the Ap
32、pellateBodys report, the DSB shall grant authorization to the complaining Member to take appropriate9countermeasures, unless the DSB decides by consensus to reject the request. 4.11 In the event a party to the dispute requests arbitration under paragraph 6 of Article 22 of theDispute Settlement Unde
33、rstanding (“DSU“), the arbitrator shall determine whether the countermeasuresare appropriate.104.12 For purposes of disputes conducted pursuant to this Article, except for time-periods specificallyprescribed in this Article, time-periods applicable under the DSU for the conduct of such disputes shal
34、lbe half the time prescribed therein. 8If a meeting of the DSB is not scheduled during this period, such a meeting shall be held for this purpose. 9This expression is not meant to allow countermeasures that are disproportionate in light of the fact that the subsidiesdealt with under these provisions
35、 are prohibited. 10This expression is not meant to allow countermeasures that are disproportionate in light of the fact that the subsidiesdealt with under these provisions are prohibited. Page 233PART III: ACTIONABLE SUBSIDIESArticle 5 Adverse EffectsNo Member should cause, through the use of any su
36、bsidy referred to in paragraphs 1 and 2of Article 1, adverse effects to the interests of other Members, i.e.:(a) injury to the domestic industry of another Member11;(b) nullification or impairment of benefits accruing directly or indirectly to other Membersunder GATT 1994 in particular the benefits
37、of concessions bound under Article II ofGATT 199412;(c) serious prejudice to the interests of another Member.13This Article does not apply to subsidies maintained on agricultural products as provided in Article 13of the Agreement on Agriculture.Article 6Serious Prejudice6.1 Serious prejudice in the
38、sense of paragraph (c) of Article 5 shall be deemed to exist in the caseof:(a) the total ad valorem subsidization14 of a product exceeding 5 per cent15;(b) subsidies to cover operating losses sustained by an industry;(c) subsidies to cover operating losses sustained by an enterprise, other than one-
39、timemeasures which are non-recurrent and cannot be repeated for that enterprise and whichare given merely to provide time for the development of long-term solutions and toavoid acute social problems;11The term “injury to the domestic industry“ is used here in the same sense as it is used in Part V.1
40、2The term “nullification or impairment“ is used in this Agreement in the same sense as it is used in the relevant provisionsof GATT 1994, and the existence of such nullification or impairment shall be established in accordance with the practiceof application of these provisions. 13The term “serious
41、prejudice to the interests of another Member“ is used in this Agreement in the same sense as it isused in paragraph 1 of Article XVI of GATT 1994, and includes threat of serious prejudice.14The total ad valorem subsidization shall be calculated in accordance with the provisions of Annex IV.15Since i
42、t is anticipated that civil aircraft will be subject to specific multilateral rules, the threshold in this subparagraphdoes not apply to civil aircraft.Page 234(d) direct forgiveness of debt, i.e. forgiveness of government-held debt, and grants to coverdebt repayment.166.2 Notwithstanding the provis
43、ions of paragraph 1, serious prejudice shall not be found if thesubsidizing Member demonstrates that the subsidy in question has not resulted in any of the effectsenumerated in paragraph 3. 6.3 Serious prejudice in the sense of paragraph (c) of Article 5 may arise in any case where oneor several of
44、the following apply:(a) the effect of the subsidy is to displace or impede the imports of a like product of anotherMember into the market of the subsidizing Member;(b) the effect of the subsidy is to displace or impede the exports of a like product of anotherMember from a third country market;(c) th
45、e effect of the subsidy is a significant price undercutting by the subsidized productas compared with the price of a like product of another Member in the same marketor significant price suppression, price depression or lost sales in the same market;(d) the effect of the subsidy is an increase in th
46、e world market share of the subsidizingMember in a particular subsidized primary product or commodity17 as compared tothe average share it had during the previous period of three years and this increasefollows a consistent trend over a period when subsidies have been granted.6.4 For the purpose of p
47、aragraph 3(b), the displacement or impeding of exports shall include anycase in which, subject to the provisions of paragraph 7, it has been demonstrated that there has beena change in relative shares of the market to the disadvantage of the non-subsidized like product (overan appropriately represen
48、tative period sufficient to demonstrate clear trends in the development of themarket for the product concerned, which, in normal circumstances, shall be at least one year). “Changein relative shares of the market“ shall include any of the following situations: (a) there is an increasein the market s
49、hare of the subsidized product; (b) the market share of the subsidized product remainsconstant in circumstances in which, in the absence of the subsidy, it would have declined; (c) themarket share of the subsidized product declines, but at a slower rate than would have been the casein the absence of the subsidy.6.5 For the purpose of paragraph 3(c), price undercutting shall include any case in which such priceundercutting has been demonstrated through a comparison of prices of the subsidized product with pricesof a non-subsidized like product supplied to the same market. The comparison sh
