CJEC, July 14, 1988, No 187-85

The court

1 By an application lodged at the court registry on 18 june 1985, the eec seed crushers and oil processors' federation (hereinafter referred to as "FEDIOL ") brought an action under the second paragraph of article 173 of the eec treaty for a declaration that commission decision 85-239 of 18 april 1985 terminating the anti-subsidy proceeding, initiated on the basis of a complaint submitted by the applicant, concerning imports of soya meal originating in argentina for the period from 1 october 1982 to 30 september 1983 (official journal l 108, p. 28) is void.

2 FEDIOL' s complaint was submitted by letter of 9 august 1983 in accordance with article 5 of council regulation n°2176-84 of 23 july 1984 on protection against dumped or subsidized imports from countries not members of the european economic community (official journal l 201, p. 1) and dealt with the following four practices: (a) preferential financing for exports of soya meal; (b) refunding of charges and direct and indirect taxes; (c) differential taxes on exports of soya-based products and (d) barriers to soya bean exports.

3 In its decision of 18 april 1985, cited above, the commission found that the first two practices had not occurred during the period covered by the investigation. As regards the last two practices, the commission found that they did not constitute subsidies within the meaning of article 3 of regulation n°2176-84.

4 The application contests that commission decision to the extent that it terminated the anti-subsidy proceeding in regard to the last two practices, namely differential taxes and charges on exports of soya-based products and barriers to soya bean exports.

5 Reference is made to the report for the hearing for a fuller account of the facts of the case and the submissions and arguments of the parties, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the court.

The scope of judicial review

6 Having regard to the observations of the commission and the intervener as to the possible limits of judicial review of the decision, it should be noted that the court has already held (see, in particular, the judgment of 4 october 1983 in case 191-82 FEDIOL v commission ((1983)) ecr 2913) that, even though a discretion has been conferred on the commission in the matter at issue, the court is required to verify whether or not it has observed the procedural guarantees granted to complainants by the community provisions in question, has committed manifest errors in its assessment of the facts, has omitted to take into consideration any essential matters of such a nature as to give rise to a belief in the existence of subsidization or has based the reasons for its decision on considerations amounting to a misuse of powers. It is in that context that the applicant' s submission to the effect that the commission failed to take account of essential matters of such a nature as to give rise to a belief in the existence of a subsidy within the meaning of article 3 of regulation n°2176-84 falls to be examined.

Differential taxes on exports of soya-based products

7 In the contested measure (paragraph 7), the commission states that according to FEDIOL, resolution 8 of 5 july 1982 of the argentinian ministry of foreign affairs set the level of export tax at 25% for soya beans and 10% for products intended to be crushed, including soya meal. The effect of that differential taxation is to restrict exports of beans so guaranteeing the argentinian oil-seed crushing industry supplies of the raw material at low cost. It thus has an advantage in terms of cost price when exporting soya meal to the community, to which must be added the advantage resulting from the lower rate of taxation by comparison with that on beans.

8 The commission noted in the contested measure that the abovementioned resolution 8 has indeed applied during the investigation period and that its provisions correspond to the substance of FEDIOL' s allegations. It accepts that such provisions can affect competition or trade. The commission states in that regard that it realizes that official action to impose or remove disincentives to external trade, particularly in the form of export taxes or restrictions, can affect competition or trade in the product immediately concerned as well as upstream or downstream products.

9 However, in the grounds of the contested decision it is stated on that point that "as far as international trade is concerned, the crucial characteristic of a subsidy is that it involves a financial contribution by government", that "any subsidy must involve a charge on the public account ". And that the "concept of a charge on the public account includes the waiving by the authorities of taxes or other dues owed ". In this case, however, according to the decision, no dues are owed and, in particular, the argentinian authorities have not waived any tax debt owed to them.

10 According to the applicant, the concept of subsidy in article 3 of regulation n°2176-84 does not necessarily presuppose a charge on the public account and should be construed broadly: there is a subsidy if the result of all the measures adopted is to provide an advantage to those who benefit from them.

11 It should be pointed out in the first place that the concept of subsidy in article 3 of regulation n°2176-84 is not expressly defined, either in that regulation or in other community measures. However, an "illustrative list" of export subsidies, referred to in article 3 (2) of the regulation, is annexed thereto. The last paragraph of that list defines as constituting an export subsidy in the sense of article xvi of the gatt "any other charge on the public account ". It follows both from the terms of that general provision and from the other examples mentioned in the list that in the mind of the community legislature the concept of export subsidy necessarily implied a financial burden borne directly or indirectly by public bodies. It also follows from article 3 (3) of the said regulation, which expressly excludes from the concept of subsidy the exemption of a product from certain export charges or taxes, that the concept of a charge covers not merely cases in which the state advances funds but also those in which it waives recovery of tax debts thereby introducing an exception to a generally applicable rule of taxation.

12 The concept of subsidy thus understood is not incompatible with the community' s obligations under international law, in particular under gatt and agreements concluded in the framework thereof. It should be pointed out in that regard that neither gatt nor the agreement on interpretation and application of articles vi, xvi and xxiii of the general agreement on tariffs and trade has contained or now contains an express definition of the term "subsidy" and the list mentioned above is merely a verbatim reproduction of the "illustrative list" annexed to the latter agreement.

13 It follows from the foregoing that the commission was not wrong or arbitrary in concluding that the concept of subsidy in article 3 of regulation n°2176-84 presupposes the grant of an economic advantage through a charge on the public account.

14 The applicant also goes on to maintain that if the argentinian system of differential taxation does not constitute an export subsidy, it may nevertheless be regarded as a domestic subsidy in favour of soya meal. By enabling the cost of producing soya meal to be reduced, the system allows the selling price thereof to be reduced and thereby constitutes a domestic subsidy. A domestic subsidy must however be regarded as a subsidy bestowed upon the manufacture of a product within the meaning of article 3 of regulation n°2176-84 and is therefore equivalent to an export subsidy, if the economic advantage granted has damaging effects on normal competition because it is granted in favour of an undertaking or sectorally, of a group of undertakings. Those conditions are fulfilled in this case by virtue of the fact that, through the system of differential export taxes, exports at a reduced price of soya meal to the community are ultimately encouraged.

15 The commission and the intervener maintain that, in any event, the factor of financial contribution by government is lacking in this case. Furthermore, the characteristic of sectoral specificity, inherent in any domestic subsidy, is also lacking, essentially because the system of taxation is applicable to a large number of different products falling under several different chapters of the customs tariff nomenclature.

16 The arguments of the commission and the intervener must be upheld since the applicant has not shown that in order specifically to favour soya meal the argentinian state deprived itself of revenue which it would normally have collected under the general system.

17 That submission must therefore be rejected.

Barriers to soya bean exports

18 In the contested measure (paragraph 8), it is mentioned that a possible restriction on exports of soya beans does not constitute a subsidy in favour of soya meal because there is no charge on the public account.

19 The applicant states that exports of soya beans are hindered because they are subject in argentina to a system of licences, and registration under rules providing for quotas and forfeiture of securities. That practice has effects similar to and convergent with those of the abovementioned system of differential taxation.

20 It is sufficient to note in that regard that in putting forward that submission, the applicant starts from the premiss that a subsidy may exist even where there is no charge on the public account. Since that premiss has been refuted above, this submission must fail.

21 Consequently, the application must be dismissed in its entirety.

Costs

22 Under article 69 (2) of the rules of procedure the unsuccessful party is to be ordered to pay the costs. Since the applicant has failed in its submissions, it must be ordered to pay the costs, including those of the intervener.

On those grounds,

The court

Hereby:

(1) Dismisses the application;

(2) Orders the applicant to pay the costs, including those of the intervener.