The Trade Remedies (Dumping and Subsidisation) (EU Exit) Regulations 2019

Specificity

22.—(1) The TRA must determine whether a subsidy is specific for the purpose of paragraph 3 of Schedule 4 to the Act in accordance with this regulation.

(2) In order to determine whether or not a subsidy is specific, the TRA must consider whether—

(a) the subsidy is explicitly—

(i) in terms of access, limited to certain enterprises or industries;

(ii) contingent on export performance;

(iii) contingent on the use of domestic over imported goods;

(iv) limited to a specific geographical region within the jurisdiction of the granting authority; or

(b) the subsidy is in fact applied in a specific manner.

(3) For the purpose of paragraph (2)(b), the circumstances in which a subsidy is in fact applied in a specific manner include—

(a) where it is or has been used or granted disproportionately to certain enterprises or industries or regions;

(b) where there is discretion as to its granting, such discretion has been exercised in favour of specific enterprises or industries or regions.

(4) When determining whether or not a subsidy is specific, in addition to the matters referred to in paragraph (2), the TRA must consider—

(a) whether the foreign authority establishes objective criteria or conditions governing the eligibility for and the amount of the subsidy;

(b) whether the criteria or conditions are clear and verifiable;

(c) whether the terms of the subsidy are strictly adhered to;

(d) whether eligibility for the subsidy is automatic; and

(e) any other factors it considers relevant.

(5) For the purpose of this regulation—

(a) the setting or changing of generally applicable tax rates by all levels of government entitled to do so shall not be deemed to be a specific subsidy;

(b) “objective criteria or conditions” means criteria or conditions that are neutral, do not favour certain industries or enterprises over others, and which are economic in nature and horizontal in application, such as the number of employees or size of enterprises;

(c) a subsidy is contingent on export performance where, in law or in fact and whether solely or as one of several conditions, it is tied to actual or anticipated exportation or export earnings, but the mere fact that a subsidy is granted to enterprises which export does not for that reason alone mean the subsidy is contingent on export performance;

(d) a subsidy is contingent on the use of domestic over imported goods where, in law or in fact, and whether solely or as one of several conditions, it is tied to the use of domestic over imported goods.

(6) When determining whether a subsidy is a subsidy that is contingent on export performance the TRA must, in particular, have regard to footnote 1 and Annexes I to III to the Agreement on Subsidies and Countervailing Measures (being part of Annex 1A to the WTO Agreement).