Consistency of the Measures at Issue with Article III of the GATT 1994

Consistency of the Measures at Issue with Article III of the GATT 1994

1. Article III:2 of the GATT 1994

   1. 
      Having resolved the threshold issue and found that the charge imposed under the measures is an internal charge falling within the scope of Article III:2 of the GATT 1994, the Panel went on to examine the consistency of the measures at issue with that provision. The Panel determined that: (i) "auto parts of domestic and foreign origin are like products within the meaning of Article III:2 of the GATT 1994"¹; and (ii) "imported auto parts are subject to an internal charge in excess of those applied to domestic products within the meaning of Article III:2 of [the] GATT 1994".² As a result, the Panel concluded that:
      

2. 
   On appeal, China does not contend that the Panel erred in finding that the products upon which the measures impose a charge are "like" domestic products, or in finding that the charge is "in excess" of that applied to like domestic products. Instead, China's claim of error is dependent upon its claim that the Panel erred in finding the charge imposed under the measures to be an internal charge rather than an ordinary customs duty. In this connection, China expresses agreement with the Panel that a charge cannot be at the same time an ordinary customs duty and an internal charge.⁴ China acknowledged at the oral hearing in this appeal that, if we uphold the Panel's finding that the charge imposed under the measures is an internal charge falling within the scope of Article III:2, we must also uphold the Panel's finding that the charge is inconsistent with China's obligations under the first sentence of Article III:2 of the GATT 1994.
   
3. 
   The appellees point out that the "sole basis"⁵ of China's appeal regarding the consistency of its measures with Article III:2 is that the Panel erred in finding that the charge imposed under the measures at issue is an internal charge rather than an ordinary customs duty, and that China has not appealed the Panel's findings regarding the "actual features of the measures".⁶ They contend that China's appeal on this ground should be rejected for the same reasons that its appeal of the Panel's resolution of the threshold issue should be rejected.
   
4. 
   In view of the above, since we have upheld the Panel's finding that the charge imposed under the measures at issue is an internal charge falling within the scope of Article III:2 of the GATT, we also uphold the Panel's finding that:
   

2. Article III:4 of the GATT 1994

   1. 
      In its analysis of the claims raised by the complainants under Article III:4 of the GATT 1994, the Panel found that: (i) "auto parts of domestic and foreign origin are like within the meaning of Article III:4"⁸; (ii) the measures at issue are laws, regulations and requirements within the meaning of Article III:4⁹; (iii) "the measures affect 'the internal sale, offering for sale, purchase, transportation, distribution or use' of imported auto parts, within the meaning of Article III:4"¹⁰; and (iv) the measures accord less favourable treatment to imported auto parts than to domestic auto parts.¹¹ Based on these findings, the Panel concluded that:
      

2. 
   On appeal, China contends that the Panel's finding that the measures fall within the scope of Article III:4 was "premised upon"¹³ its finding that the charge imposed under the measures is an internal charge. Because, in China's view, the latter finding is in error, the Panel's findings under Article III:4 must also be reversed. China adds that, because the measures impose ordinary customs duties, the administrative procedures associated with those duties under the measures should be viewed as "customs measures that implement a valid method of classification under the rules of the Harmonized System"¹⁴ and that these procedures do not, therefore, fall within the scope of Article III:4 of the GATT 1994.
   
3. 
   The first part of China's appeal under Article III:4 is linked to and dependent upon its appeal relating to the Panel's determination that the charge imposed under the measures is not an ordinary customs duty, but is instead an internal charge falling within the scope of Article III:2 of the GATT 1994. In paragraph 2 above, we upheld the Panel's resolution of this threshold issue. Accordingly, we must reject China's appeal of the Panel's finding under Article III:4 to the extent that it is premised upon China's appeal of the threshold issue.
   
4. 
   However, China also makes another argument in support of its appeal of the Panel's finding under Article III:4. Specifically, China contests the Panel's finding that the measures at issue "influence[] an automobile manufacturer's choice between domestic and imported auto parts and thus affect[] the internal use of imported auto parts."¹⁵ China contends that the Panel erred in making this finding because, according to China, any "influence" that the measures may have on an automobile manufacturer's decision to use domestic over imported auto parts is attributable to the structure of the tariff rates bound in China's Schedule of Concessions, which are 10 per cent for auto parts and 25 per cent for complete vehicles. Thus, according to China, any incentives created are "inherent in China's permissible duty rates".¹⁶ This means, in China's view, that the Panel erred in using the incentives created by the differential rates in China's Schedule to find a violation of Article III:4 when the Panel itself recognized that "the discrimination inherent in a customs duty that a Member validly imposes is not a form of discrimination that is prohibited under Article III".¹⁷
   
5. 
   Both the United States and the European Communities point out that the difference in bound rates for auto parts and motor vehicles in China's Schedule of Concessions is not the "discrimination" relied upon by the Panel in finding that the measures at issue are inconsistent with Article III:4 of the GATT 1994. In their view, the Panel relied instead upon its finding that the measures at issue, including the administrative requirements that they impose upon manufacturers of vehicles meeting the criteria under the measures, influence a manufacturer to choose domestic auto parts over imported auto parts.
   
6. 
   With respect to this issue, we observe, first, that China made an argument before the Panel very similar to the one it raises on appeal. The Panel stated that China appeared to "misunderstand" the claim made by the complainants with respect to this element of Article III:4:
   

7. 
   In examining this "alleged incentive", the Panel reasoned that, in order to avoid the charge imposed under the measures at issue, automobile manufacturers must ensure that imported auto parts used in the assembly of a given vehicle model do not meet any of the criteria set out in the measures. Producing vehicles that meet the criteria in the measures implies not only attracting the charge, which is imposed subsequent to assembly, but also the tracking and reporting of auto parts imported in multiple shipments. The Panel considered that these aspects of the measures "inevitably influence[]"¹⁹ an automobile manufacturer's choice between domestic and imported auto parts and thus affect the internal use of imported auto parts.
   
8. 
   In its reasoning on this issue, the Panel referred to certain other disputes, including US – FSC (Article 21.5 – EC). We recall that the Appellate Body determined that a 50 per cent "fair market value" rule under the measure at issue in that case "affected" the internal use of imported products because it created an incentive for a manufacturer not to use imported input products.²⁰ Similarly, the Panel in India – Autos found that "indigenization requirements" (requirements to use a minimum amount of domestically produced parts) and "trade balancing requirements" (requirements to export products of an equivalent value to the imported products) created incentives for automobile manufacturers to purchase Indian parts and components rather than imported parts and components and, thereby, "affected" the internal sale, offering for sale, purchase and use of imported parts and components in the Indian market within the meaning of Article III:4 of the GATT 1994.²¹ That panel also observed that "[t]he fact that a provision is not necessarily primarily aimed at regulating the offering for sale or use of the product on the domestic market is ... not an obstacle to its 'affecting' them."²²
   
9. 
   Returning to the circumstances of this case, we note that the measures at issue set out specific thresholds for determining when imported auto parts will be characterized as complete vehicles. The use by an automobile manufacturer, in a given vehicle model, of certain key assemblies or combinations of assemblies that are imported means that a higher (25 per cent) charge will be payable on all imported parts than would be the case if those combinations of imported assemblies were not used and the thresholds were not met, in which case any imported parts used in the vehicle model would be subject to only a 10 per cent duty. This creates an incentive for manufacturers to limit their
   
10. 
    use of imported parts relative to domestic parts.²³ In addition, the measures at issue in this dispute impose administrative procedures, and associated delays, on automobile manufacturers using imported parts, which could be avoided entirely if a manufacturer were to use exclusively domestic auto parts. These incentives "affect" the conditions of competition for imported auto parts on the Chinese internal market.
    
11. 
    On the basis of these elements of the measures at issue, and with reference to previous panel and Appellate Body decisions, the Panel found that "the administrative procedures imposed on any auto manufacturer using imported auto parts as well as the criteria set out in the measures, combined with the assessment of the charge which is based on the final assembly internally, create an incentive for auto manufacturers to use domestic auto parts instead of imported auto parts."²⁴ We see no error in this finding, which also served as the basis for the Panel's finding that the measures at issue "affect 'the internal sale, offering for sale, purchase, transportation, distribution or use' of imported auto parts, within the meaning of Article III:4 of the GATT 1994."²⁵ Furthermore, China has presented no challenge to, and we see no error in, the Panel's other findings under Article III:4, namely that imported auto parts are "like" domestic auto parts²⁶; that the measures at issue are laws, regulations and requirements within the meaning of Article III:4²⁷; and that the measures accord less favourable treatment to imported auto parts than to domestic auto parts.²⁸
    
12. 
    Accordingly, we uphold the Panel's finding that:
    

7. 
   
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