最惠国待遇原则案例

最惠国待遇原则
INDONESIA - CERTAIN MEASURESAFFECTING THE AUTOMOBILE INDUSTRY1
REPORT OF THE PANEL
7.1 Japan claims that the National Car Programme of February 1996 (See Section III.A) violates Article I:1 of GATT 1994. The following are Japan's arguments in support of this claim:
(a) Article I:1 of GATT 1994 requires immediate and unconditional MFN treatment forimported parts and components
7.2 The National Car Programme introduced in February 1996 accords a special advantage including exemption from customs duty to automotive parts and components imported or to be imported from Korea for use in assembling National Cars. This advantage constitutes a violation of Article I:1 of GATT 1994 which requires the "immediate and unconditional" extension of general most-favoured-nation treatment to imports from member countries relative to the treatment of imports of like products from any other country.
7.3 As the 12 December 1995 letter from the President Director of TPN to the State Minister forthe Mobilization of Investment Coordinating Board shows clearly, TPN, which is currently the only National Car producer, has expressed its intention to rely on Kia Motors, Korea. In particular, the President Director of TPN stated plainly that the company applied to obtain approval to "(1)[m]anufacture four-wheeled motor vehicles with the 'TIMOR' brand name at the KIA Motors Corp. ,South Korea factory which are then to be delivered to Indonesia in SKD form with a local production of 65,000 units from 1996, 1997, and 1998; [and] (2) [m]anufacture four-wheeled motor vehicles with the 'TIMOR' brand name at third party's/parties' licensed assembly plant(s) in Indonesia with its primary material imported from overseas (KIA Motors Corp.) starting from full-CKD and gradually decreasing by the use of local components/parts with a total production from 1997, 1998, and 1999 of 125,000 units." (Italics added.) The correspondence between the President Director and the State Minister shows that both of them understood that most of the parts and components for assembling national cars in Indonesia would be imported from Korea at least in the initial stages and that they intended to effectuate this understanding. Accordingly, TPN is expected to import many of the parts and components for the purpose of assembling National Cars only from Kia. The preferential treatment for National Cars, including the duty-free treatment of imported parts and components in particular, is likely to lead to benefits for imports of parts and components from Korea, compared with those from other countries.
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F. Claims of MFN Discrimination
14.125 Japan and the European Communities claim that the customs duty exemptions on parts 1WT/DS54/R
WT/DS55/R
WT/DS59/R
WT/DS64/R
and components of the February 1996 car program violate Article I:1 of GATT because they confer advantages of the type covered by Article I:1 which are conditional (only if used in National Cars)and available de facto only to imports of parts and components from Korea since the only National Car assembled in Indonesia is a replica of the Kia Sephia from Korea, and this, to the detriment of imports of “like” parts and components from other Members.
2. Criteria for an Article I of GATT violation
14.137 Article I of GATT requires that any privileges granted to imports of any country be accorded immediately and unconditionally to the like products originating in or destined for the territories of all other Members.
“1. With respect to customs duties and charges of any kind imposed on or in connection with importation or exportation or imposed on the international transfer of payments for imports or exports, and with respect to the method of levying such duties and charges, and with respect to all rules and formalities in connection with importation and exportation, and with respect to all matters referred to in paragraphs 2 and 4 of Article III, any advantage, favors, privilege or immunity granted by any contracting party to any product originating in or destined for any other country shall be accorded immediately and unconditionally to the like product originating in or destined for the territories of all other contracting parties.”
(ii) “unconditional advantages”
14.143 We now examine whether the advantages accorded to National Cars and parts and components thereof from Korea are unconditionally accorded to the products of other Members, as required by Article I. The GATT case law is clear to the effect that any such advantage (here tax and customs duty benefits) cannot be made conditional on any criteria that is not related to the imported product itself.
14.145 Indeed, it appears that the design and structure of the June 1996 car programme is such as to allow situations where another Member’s like product to a National Car imported by PT PTN from orea will be subject to much higher duties and sales taxes than those imposed on such National Cars. For example, customs duties as high as 200% can be imposed on finished motor vehicles while an imported National Car benefits from a 0% customs duty. No taxes are imposed on a National Car while an imported like motor vehicle from another Member would be subject to a 35% sales tax. The distinction as to whether one product is subject to 0 % duty and the other one is subject to 200% duty or whether one product is subject to 0% sales tax and the other one is subject to a 35% sales tax, depends on whether or not PT TPN had made a “deal” with that exporting company to produce that National Car, and is covered by the authorization of June 1996 with specifications that correspond to those of the Kia car produced only in Korea. In the GA TT/WTO, the right of Members cannot be made dependent upon, conditional on or even affected by, any private contractual obligations in place. The existence of these conditions is inconsistent with the provisions of Article I:1 which provides that tax and customs duty benefits accorded to products of one Member (here on Korean products) be accorded to imported like
products from other Members “immediately and unc onditionally”.
14.146 We note also that under the February 1996 car programme the granting of customs duty benefits to parts and components is conditional to their being used in the assembly in Indonesia of a National Car. The granting of tax benefits is conditional and limited to the only Pioneer company producing National Cars. And there is also a third condition for these benefits: the meeting of certain local content targets. Indeed under all these car programmes, customs duty and tax benefits are conditional on achieving a certain local content value for the finished car. The existence of these conditions is inconsistent with the provisions of Article I:1 which provides that tax and customs duty advantages accorded to products of one Member (here on Korean products) be accorded to imported like products from other Members “immediately and unconditionally”.
14.147 For the reasons discussed above, we consider that the June 1996 car programme which introduced discrimination between imports in the allocation of tax and customs duty benefits based on various conditions and other criteria not related to the imports themselves and the February 1996 car programme which also introduce discrimination between imports in the allocation of customs duty benefits based on various conditions and other criteria not related to the imports themselves, are inconsistent with the provisions of Article I of GATT.。