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Journal of Energy & Natural Resources Law Volume 25, 2007 - Issue 1
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Original Articles

Towards a European White Certificates Scheme: Review under Current National Experiences and International Trade Law

Anne De Geeter Anne De Geeter is an associate at Lawfort law firm in Brussels, where she specialises in energy law. She also hold an LLM in energy and environmental law from the University of Leuven. She can be contacted by e-mail at [email protected].
Pages 1-57 | Published online: 09 Jun 2015

  • Commission of the European Communities, Green Paper on Energy Efficiency or Doing More with Less, COM(2005) 265 final, 22 June 2005, 5.
  • V Bruggeman, ‘Energy Efficiency in the European Community,’ in European Environmental Law Review, May 2004, 140.
  • Commission of the European Communities, Green Paper: Towards a European Strategy for the Security of Energy Supply, COM (2000) 769 final, 29 November 2000.
  • P Bertoldi et al, ‘EU Environmental Law, Energy Efficiency and Renewable Energy Sources,’ in L Werring (ed), EU Energy Law, Volume III (Claeys & Casteels, 2006), p 6.
  • Council Directive 78/170/EEC of 13 February 1978 on the Performance of Heat Generators for Space Heating and the Production of Hot Water in New or Existing Non-Industrial Buildings and on the Insulation of Heat and Domestic Hot-Water Distribution in New Non-Industrial Buildings, in force 14 February 1978, OJ 1978 L 52/32; then modified by Council Directive 82/885/EEC of 10 December 1982 Amending Directive 78/170/EEC on the Performance of Heat Generators for Space Heating and the Production of Hot Water in New or Existing Non-Industrial Buildings and on the Insulation of Heat and Domestic Hot-Water Distribution on New Non-Industrial Buildings, in force 16 December 1982, OJ 1982 L 378/19.
  • Council Directive 79/530/EEC of 14 May 1979 on the Indication by Labelling of the Energy Consumption of Household Appliances, in force 16 May 1979, OJ 1979 L 145/1.
  • Council Directive 92/75/EEC of 22 September 1992 on the Indication by Labelling and Standard Product Information of the Consumption of Energy and Other Resources by Household Appliances, in force 2 October 1992, OJ 1992 L 297/16.
  • Council Directive 79/531/EEC of 14 May 1979 Applying to Electric Ovens Directive 79/530/EEC on the Indication by Labelling of the Energy Consumption of Household Appliances, in force 16 May 1979, OJ 1979 L 145/7.
  • Commission Directive 94/2/EC of 21 January 1994 With Regard to Energy Labelling of Household Electric Refrigerators, Freezers and their Combinations, in force on February 1994, OJ 1994 L 45/1; Directive 96/57/EC of the European Parliament and of the Council of 3 September 1996 on Energy Efficiency Requirements for Households Electric Refrigerators, Freezers and Combinations Thereof, in force 8 October 1996, OJ 1996 L 236/36.
  • Commission Directive 95/12/EC of 23 May 1995 Implementing Council Directive 92/75/EEC With Regard to Energy Labelling of Household Washing Machines, in force 11 July 1995, OJ 1995 L 136/1.
  • Council Directive 92/42/EEC of 21 May 1992 on Efficiency Requirements for New Hot-Water Boilers, in force 3 June 1992, OJ 1992 L 167/17.
  • Commission Directive 95/13/EC of 23 May 1995 Implementing Council Directive 95/75/ EEC With Regard to Energy Labelling of Household Electric Tumble Driers, in force 11 July 1995, OJ 1995 L 136/28.
  • Commission Directive 96/60/EC of 19 September 1996 Implementing Council Directive 92/75/EEC With Regard to Energy Labelling of Household Combined Washer-Driers, in force 7 November 1996, OJ 1996 L 266/1.
  • Commission Directive 97/17/EC of 16 April 1997 Implementing Council Directive 92/75/EEC With Regard to Energy Labelling of Household Dishwashers, in force 27 May 1997, OJ 1997 L 118/1.
  • Commission Directive 98/11/EC of 27 January 1998 Implementing Council Directive 92/75/EEC With Regard to Energy Labelling of Household Lamps, in force 30 March 1998, OJ 1998 L 71/1.
  • Bruggeman, n 2 above, at 143.
  • Directive 96/57/EC of the European Parliament and of the Council of 3 September 1996 on Energy Efficiency Requirements for Households Electric Refrigerators, Freezers and Combinations Thereof, in force 8 October 1996, OJ 1996 L 236/36.
  • Directive 2002/91/EC of the European Parliament and of the Council of 16 December 2002 on the Energy Performance of Buildings, in force 4January 2003, OJ 2003 L 001/65.
  • Directive 2003/30/EC of the European Parliament and of the Council of 8 May 2003 on the Promotion of the Use of Biofuels or Other Renewable Fuels for Transport, in force 17 May 2003, OJ 2003 L 123/42.
  • Directive 2004/8/EC of the European Parliament and of the Council of 11 February 2004 on the Promotion of Cogeneration Based on a Useful Heat Demand in the Internal Energy Market and Amending Directive 92/42/EEC, in force 21 February 2004, OJ 2004 L 052/ 50.
  • Bruggeman, n 2 above, at 143.
  • Council Decision of 14 May 2001 Concerning the Conclusion on Behalf of the European Community of the Agreement Between the Government of the United States of America and the European Community on the Coordination of Energy Efficient Labelling Programme for Office Equipments, OJ 2001 L 172/1; Council Decision of 8 April 2003, OJ 2003 L 99/47; Regulation 2422/2001 of the European Parliament and of the Council of 6 November 2001 on a Community Energy Efficiency Labelling Programme for Office Equipment, in force 14 January 2002, OJ 2001 L 332/1.
  • Bertoldi et al, n 4 above, at 11.
  • Directive 2005/32/EC of the European Parliament and of the Council of 6 July 2005 Establishing a Framework for the Setting of Eco-Design Requirements for Energy-Using Products and Amending Council Directive 92/42/EEC and Directives 96/57/EC and 2000/55/EC of the European Parliament and of the Council, in force 11 August 2005, OJ 2005 L 191/29.
  • Directive 2006/32 of the European Parliament and of the Council of 5 April 2006 on Energy End-Use Efficiency and Energy Services and Repealing Council Directive 93/76/EEC (the ‘Energy End-Use Efficiency and Energy Services Directive’), in force 17 May 2006, OJ 2006 L 114/64.
  • WhCs are also known as ‘tradable certificates for energy savings’.
  • Proposal for a Directive of the European Parliament and of the Council on Energy End-Use and Energy Services of 10 December 2003, COM(2003) 739 final, 2 (the ‘Proposed Directive on Energy End-Use Efficiency and Energy Services’); the Directive based on this proposal was adopted in April 2006 and will be further discussed below.
  • Accordingly, the Proposed Directive covered electricity, gas and other important energy types, such as district heating, heating fuel, coal and lignite, forestry and agricultural energy products and transport fuels; ibid., 2.
  • The proposed target was mandatory and had to be equal to one per cent of the amount of energy distributed and/or sold to final customers (Art 3 of the Proposed Directive on Energy End-Use Efficiency and Energy Services). This target changed slightly during the negotiations of the Directive, and, in the Directive adopted by the European Parliament and the Council on 5 April 2006, the target became a ‘national indicative energy savings target of 9% for the ninth year of application of this Directive’ (Art 4 of the Energy End-Use Efficiency and Energy Services Directive).
  • Proposed Directive on Energy End-Use Efficiency and Energy Services, n 27 above, at 5.
  • Article 3(o) of the Proposed Directive on Energy End-Use Efficiency and Energy Services.
  • Article 4(7) of the Proposed Directive on Energy End-Use Efficiency and Energy Services. Such affirmation was, however, not supported by every European stakeholder. For instance, the European Economic and Social Committee contested during the negotiations of the Energy End-use Efficiency and Energy Services Directive the introduction of a WhCS since it refused the imposition of binding targets to Member States; Opinion of the European Economic and Social Committee of 28 October 2004 on the ‘Proposal for a Directive of the European Parliament and of the Council on Energy End-Use Efficiency and Energy Services,’ COM(2003)739 final—2003/0300(COD), OJ 2005, C 120/118.
  • White and Green, A Comparison of Market Mechanisms for Energy Efficiency, at www.iiiee.lu.se/QuickPlace/whiteandgreen/Main.nsf/h_Toc/695a3dfe0be56celcl256eba00356cbl/!OpenDocument.
  • Commission of the European Communities, Green Paper on Energy Efficiency or Doing More with Less, n 1 above, at 28.
  • Euro WhiteCert Project, at www.ewc.polimi.it.
  • Euro WhiteCert Project, Interaction and Integration of White Certificates with Other Policy Instruments: Recommendations and Guidelines for Decision Makers, April 2006, accessed on May 2006, at www.ewc.polimi.it/documents/EWC_guidelines.pdf.
  • Commission of the European Communities, Green Paper on Energy Efficiency or Doing More with Less, n 1 above, at 4.
  • Commission of the European Communities, Green Paper on Energy Efficiency or Doing More with Less, n 1 above, at 28.
  • Commission of the European Communities, Green Paper: A European Strategy for Sustainable, Competitive and Secure Energy, COM(2006) 105 final, 8 March 2006, 11 and 19.
  • Article 3(s) of the Directive on Energy End-Use Efficiency and Energy Services.
  • That is to say in 2012.
  • Article 4(5) of the Energy End-Use Efficiency and Energy Services Directive.
  • Article 6(b) of the Energy End-Use Efficiency and Energy Services Directive.
  • V Oikonomou and M Patel, White and Green Phase II—White Certificates, accessed in May 2006, at www.iiiee.lu.se/files/whiteandgreen/pdf/WG_WC.pdf, 21.
  • K Verhaegen, L Meeus and R Belmans, ‘Towards an International Certificate System—The Stimulating Example of Belgium,’ to be published, 4.
  • Commission of the European Communities, Communication from the Commission, The Support of Electricity from Renewable Energy Sources, COM(2005) 627 final, 7 December 2005, 11.
  • Euro WhiteCert Project, Interaction and Integration of White Certificates with Other Policy Instruments: Recommendations and Guidelines for Decision Makers, n 36, at 4.
  • Cap-and-trade implies a limit on the number of WhCs that can be purchased from one country to the other; ibid, 4.
  • Article 14(2) of the EC Treaty.
  • Article 28 of the EC Treaty.
  • Articles 39, 49 and 56 of the EC Treaty.
  • J Snell, Goods and Services in EC Law, A Study of the Relationship Between the Freedoms (Oxford University Press, 2002), p 4.
  • Case C-2/90 Commission v Belgium [1992] ECR I-4431, ECJ.
  • Snell, n 52 above, at 6.
  • Article 50 of the EC Treaty. Meanwhile, this Article states: ‘services shall in particular include: (a) activities of an industrial character; (b) activities of a commercial character; (c) activities of craftsmen; (d) activities of the professions.’
  • Case C-379/98 PreussenElektra v Schleswag AG [2001] ECR 1–2099, ECJ.
  • Case 8/74 Dassonville [1974] ECR 837, ECJ.
  • Proposed Directive on Energy End-Use Efficiency and Energy Services, n 27 above, at 15.
  • Proposed Directive on Energy End-Use Efficiency and Energy Services, n 27 above, at 15.
  • G van Calster, ‘Public Environmental Law in the European Union,’ in RJ G H Seerden et al (eds), Public Environmental Law in the European Union and the United States (Kluwer Law International, 2002), p 482.
  • According to Art 30 of the EC Treaty, such grounds are: ‘public morality, public policy or public security; the protection of health and life of humans, animals or plants; the protection of national treasures possessing artistic, historic or archaeological value; or the protection of industrial and commercial property.’
  • Article 30 of the EC Treaty.
  • Case 120/78 Rewe-Zentral AG v Bundesmonopolverwaltung für Branttwein [1979] ECR 649, ECJ.
  • Directive 2001/77/EC of the European Parliament and of the Council of 27 September 2001 on the Promotion of Electricity Produced From Renewable Energy Sources in the Internal Electricity Market, in force 27 October 2001, OJ 2001 L 283/33 (the ‘Renewable Energy Directive’).
  • Article 3 of the Renewable Energy Directive.
  • Article 4 of the Renewable Energy Directive.
  • Article 8 of the Renewable Energy Directive. This report was handed in by the Commission on 7 December 2005 (Commission of the European Communities, Communication from the Commission, The Support of Electricity from Renewable Energy Sources, n 46 above).
  • While tax incentives speak for themselves, the other types of scheme have to be further clarified. Tendering procedures, first, imply a series of tenders for the supply of green energy. Once the tender succeeded, a contract is concluded at the price resulting from the tender. The additional costs generated by the production of green energy are borne by the final consumers through the payment of a specific levy. Turning to feed-in tariffs, they are, with green certificates, the most used system in the European Union. They bind electricity companies to purchase green electricity from domestic producers at a specific price. The additional costs are paid by the suppliers who subsequently pass them on to their final consumers, according to a premium on the kWh end-user price; Commission of the European Communities, Communication from the Commission, The Support of Electricity from Renewable Energy Sources, ibid, 4.
  • Ibid, 4.
  • Ibid, 22.
  • Meanwhile, a federal system was also developed but cannot really qualify as a GCS since no quotas are imposed on installations subject to this scheme.
  • Verhaegen, Meeus and Belmans, n 45 above, at 5.
  • Commission of the European Communities, Communication from the Commission, The Support of Electricity from Renewable Energy Sources, n 46 above, 11 and 16.
  • Article 5 of the Renewable Energy Directive.
  • Article 5(4) of the Renewable Energy Directive.
  • Recital 10 of the Renewable Energy Directive. Meanwhile, this Recital further states: ‘However, to facilitate trade in electricity produced from renewable energy sources and to increase transparency for the consumer's choice between electricity produced from nonrenewable and electricity produced from renewable energy sources, the guarantee of origin of such electricity is necessary. Schemes for the guarantee of origin do not by themselves imply a right to benefit from national support mechanisms established in different Member States. It is important that all forms of electricity produced from renewable energy sources are covered by such guarantees of origin.’
  • N Knutsson, Dynamics of an EU System for Tradable Green Certificates, Master of Science Thesis, Linköpings Universitet, 17 June 2002, accessed in June 2006, at http://web.comhem.se/~u31437179/documents/d-uppsats.pdf, 17; according to this author, a mere national GCS in Sweden may for instance lead to a lower production of electricity from renewable sources in Denmark.
  • Indeed, and as outlined above, different schemes have been developed in the European Union, GCS and feed-in-tariffs being the two most common. Harmonisation of the RES support schemes at the EU level would potentially imply a choice between a GCS and feed-in-tariffs, and this choice is likely to launch harsh debates.
  • The reference point could be based, for instance, on either actual or predicted consumption.
  • P Bertoldi and S Rezessy, Tradable Certificates for Energy Savings (White Certificates)—Theory and Practice, 2006, accessed in May 2006, at http://energyefficiency.jrc.cec.eu.int/pdf/publications/White%20cert%20Report%20final.pdf, 48.
  • Bertoldi and Rezessy, no 80 above, at 48.
  • Ibid, 49.
  • O Langniss and B Praetorius, ‘How Much Market Do Market-Based Instruments Create? An Analysis for the Case of White Certificates,’ in Energy Policy, September 2004, 209.
  • Still, targets based on sale percentage are likely to be more acceptable in practice; P Bertoldi and S Rezessy, n 80 above, at 50.
  • Ibid, 51.
  • Ibid, 53. Indeed, a preferential treatment could lead to higher transaction costs than a market-force settlement of the environmental and social objectives. Equally, in a scheme with wider choices of projects and investments and fewer compliance limitations, the marginal costs of compliance are likely to be more diverse while the benefits of trading should be greater.
  • Bertoldi and Rezessy, n 80 above, at 54.
  • Oikonomou and Patel, n 44 above, at 8.
  • Bertoldi and Rezessy, n 80 above, at 69 to 73.
  • Ibid., 72. Indeed, if borrowing was allowed, certificates could be handed in to obliged parties before they had achieved any EE projects.
  • Ibid, 72.
  • Oikonomou and Patel, n 44 above, at 12.
  • Bertoldi and Rezessy, n 80 above, at 58.
  • Bertoldi and Rezessy, n 80 above, at 59.
  • Oikonomou and Patel, n 44 above, at 8.
  • A non-regret measure means that no additional costs are implied by the measure, because the investment was entirely covered by the energy savings. Nonetheless, the investments would not have taken place without the WhCS; Langniss and Praetorius, n 83 above, at 208.
  • Bertoldi and Rezessy, n 80 above, at 59.
  • P Bertoldi, S Rezessy, O Langniss and M Voogt, White, Green & Brown Certificates: How to Make the Most of them?, 2005, accessed in May 2006, at http://energyefficiencyjrc.cec.eu.int/pdf/publications/ECEEE%202005%20paper%207%20203%20final.pdf, 8.
  • Bertoldi and Rezessy, n 80 above, at 66.
  • The four options for M&V are: (1) Option A: partially measured retrofit insulation: the retrofit insulation could first be partially measured, savings being determined by the application of only some of the measurement criteria and the EE project being insulated from the rest of the facility. This option involves both short- and long-term verification; (2) Option B: the retrofit insulation: the retrofit insulation could also take place with application of the full measurement criteria. Both short and long term verifications are again involved; (3) Option C: whole building: measurement can also take into account the whole facility. Under this option, the monitoring takes place mainly on a long-term basis; and (4) Option D: calibrated simulation: finally, savings can be determined through a computer-based simulation of the energy use components of the whole facility; Bertoldi and Rezessy, n 80 above, at 66.
  • Ibid, 84.
  • Euro WhiteCert Project, Interaction and Integration of White Certificates with Other Policy Instruments: Recommendations and Guidelines for Decision Makers, n 36 above, at 7.
  • Ibid.
  • Bertoldi and Rezessy, n 80 above, at 56.
  • V Oikonomou and M Patel, n 44 above, at 24.
  • U Farinelli et al, ‘White and Green: Comparison of Market-Based Instruments to Promote Energy Efficiency,’ in Journal of Cleaner Production, December 2004, 1023.
  • Langniss and Praetorius, n 83 above, at 204.
  • Cogeneration certificates could also be mentioned. Such certificates are, for instance, developed in Belgium, and are incidentally promoted by the above-mentioned Directive on the Promotion of Cogeneration (n 20 above). Meanwhile, the Energy End-Use Efficiency and Energy Services Directive includes cogeneration in its indicative list of eligible EE improvement measures (see Annex III of the Energy End-Use Efficiency and Energy Services Directive). However, this article will merely focus on GC and emissions allowances.
  • Euro WhiteCert Project, Interaction and Integration of White Certificates with Other Policy Instruments: Recommendations and Guidelines for Decision Makers, n 36 above, at 9.
  • See ‘Counter-example of GCs?’ above.
  • P Bertoldi, S Rezessy, O Langniss and M Voogt, White, Green & Brown Certificates: How to Make the Most of them?, n 98 above, at 10.
  • V Oikonomou and M Patel, White and Green Phase II—Green Certificates and White Certificates, accessed in May 2006, at www.iiiee.lu.se/files/whiteandgreen/pdf/WG_GC_and_WC.pdf, 7.
  • According to Art 3(4) of the Renewable Energy Directive, this target is 12 per cent of the total energy consumption by 2010.
  • According to Art 4(1) of the Energy End-Use and Energy Services Directive, ‘Member states shall adopt and aim to achieve an overall national indicative energy savings target of 9% for the ninth year of application of this Directive’.
  • By setting its target as a share of final consumption, the Renewable Energy Directive encourages the integration of energy saving measures that reduce the overall consumption; P Bertoldi, S Rezessy, O Langniss and M Voogt, White, Green & Brown Certificates: How to Make the Most of them?, n 98 above, at 10.
  • Ibid, 10.
  • P Bertoldi, S Rezessy, O Langniss and M Voogt, White, Green & Brown Certificates: How to Make the Most of them?, n 98 above, at 10. Ibid, 10. See also V Oikonomou and M Patel, White and Green Phase II—Green Certificates and White Certificates, n 44 above, at 10.
  • P Bertoldi, S Rezessy, O Langniss and M Voogt, White, Green & Brown Certificates: How to Make the Most of them?, n 98 above, at 10.
  • See ‘Institutional obstacles’ above.
  • P Bertoldi and T Huld, ‘Tradable Certificates for Renewable Electricity and Energy Savings,’ in Energy Policy, September 2004, 216.
  • P Bertoldi and S Rezessy, n 80 above, at 93.
  • Ibid, 93. This multiplier could, for instance, imply the equivalence of two GCs with one WhC. Still, the establishment of an exact exchange could be controversial.
  • Euro WhiteCert Project, Interaction and Integration of White Certificates with Other Policy Instruments: Recommendations and Guidelines for Decision Makers, n 36, 11.
  • Ibid, 12.
  • Bertoldi and Rezessy, n 80 above, at 94.
  • Ibid, 94.
  • Annex 111(g) of the Energy End-Use Efficiency and Energy Services Directive.
  • This project is carried out by the European Commission Joint Research Centre (JRC).
  • P Bertoldi and T Huld, n 120 above, at 218.
  • Ibid, 219.
  • Besides, ‘the system will be tested through the use of several photovoltaic panels installed at the JRC. Each PV module will be allocated to a virtual generator. The electricity consumers will be individual offices in a single building at JRC, and lighting and office equipment energy consumption will be monitored in these offices…. The system will be testing by imposing monthly quotas on consumers for using PV-generated electricity or reducing consumption…. Each participant will receive a virtual budget to use in choosing efficiency and renewable-energy PV options. The budget can be used to buy additional PV power not yet in the system but available on site or to invest in energy-efficiency options’; ibid, 220.
  • Ibid, 221.
  • O Langniss and B Praetorius, ‘How Much Market Do Market-Based Instruments Create? An Analysis for the Case of White Certificates,’ n 83 above, at 210.
  • Directive 2003/87 of the European Parliament and of the Council of 13 October 2003 Establishing a Scheme for Greenhouse Gas Emission Allowance Trading within the Community and Amending Council Directive 96/61/EC, in force 25 October 2003, OJ 2003 L 275/32.
  • According to Annex I of the EU ETS Directive, the activities covered are namely: energy activities; production and processing of ferrous metals; mineral industry; pulp, paper and broad production. Accordingly, the EU emissions trading scheme covers more or less half of the industrial energy consumers.
  • Langniss and Praetorius, n 83 above, at 210.
  • Bertoldi and Rezessy, n 80 above, at 89.
  • Ibid, 95.
  • This could for instance be the case for combined heat and power facilities on biomass that may receive emission allowances, but also be eligible under the WhC scheme. Meanwhile, such an example would also be eligible under potential GCS and cogeneration certificates scheme; ibid, 95–96.
  • Ibid, 95.
  • Ibid, 96.
  • Ibid, 98.
  • Bertoldi and Rezessy, n 80 above, at 98.
  • Ibid, 98; Euro WhiteCert Project, Interaction and Integration of White Certificates with Other Policy Instruments: Recommendations and Guidelines far Decision Makers, n 36 above, at 10. Besides, this approach was recently undertaken by the European Parliament in its resolution of 1 June 2006 on Energy Efficiency or Doing More with Less—Green Paper (2005/2210(INI)). Indeed, in the recital 73 of its resolution, the European Parliament considered that ‘the system of tradable ‘white certificates’ should not be followed up at present, as it will be necessary to wait for the results of emissions trading’.
  • Article 2(b) of the Energy End-Use Efficiency and Energy Services Directive.
  • P Bertoldi, S Rezessy, O Langniss and M Voogt, White, Green & Brown Certificates: How to Make the Most of them?, n 98 above, at 11.
  • Ibid, 11.
  • Ibid, 11.
  • Indeed, because of the EE invisibility, businesses may not recognise EE as energy sources, business opportunities and ways to improve competitiveness and comfort.
  • Bertoldi and Rezessy, n 80 above, at 103.
  • Euro WhiteCert Project, Interaction and Integration of White Certificates with Other Policy Instruments: Recommendations and Guidelines for Decision Makers, n 36, at 10.
  • This expression is taken from the Euro WhiteCert Project, Interaction and Integration of White Certificates with Other Policy Instruments: Recommendations and Guidelines for Decision Makers, n 36, at 6.
  • Climate Action Network Europe, CAN Europe Response to Public Consultation on Green Paper on Energy Efficiency, January 2006, accessed in May 2006, at www.climnet.org/EUenergy/CANE_GreenPaper_EE.pdf; European Energy and Transport Forum, Green Paper on Energy Efficiency, Forum Opinion, January 2006, accessed in May 2006 at www.climnet.org/EUenergy/CANE_GreenPaper_EE.pdf; European Energy and Transport Forum, Green Paper on Energy Efficiency, Forum Opinion, January 2006, accessed in May 2006 at http://europa.eu.int/comm/dgs/energy_transport/forum/works/doc/2006_01_green_paper_energy_efficiency.pdf; European Council for an Energy-Efficient Economy, The European Commission Green Paper on Energy Efficiency or Doing More with Less, A response from ECEEE, 12 January 2006, accessed in May 2006, at http://66.249.93.104/search?q=cache:yr6ub0Olfhkj:www.eceee.org/library_links/downloads/eceeedocs/eceeeResp.EU-EEGreenPapFin.doc+eceee+european+commission+green+paper+a+response+from+eceee&hl=fr&gl=be&ct=clnk&cd=2.
  • Article 6(2) (b) of the Energy End-Use Efficiency and Energy Services Directive. See also the European Parliament Resolution on Energy Efficiency or Doing more with less, n 143 above, recital 74: ‘the effects of the white certificate system should be ascertained precisely before its possible introduction’.
  • Article 4(5) of the Energy End-Use Efficiency and Energy Services Directive.
  • Langniss and Praetorius, n 83 above, at 210.
  • Euro WhiteCert Project, Interaction and Integration of White Certificates with Other Policy Instruments: Recommendations and Guidelines for Decision Makers, n 36, at 6.
  • Ibid, 6.
  • EE Titles is the Italian name for WhCs.
  • M Pavan, Italian Energy Efficiency Obligation and White Certificates: Measurement and Evaluation, 3 March 2005, accessed in May 2006 at www.eceee.org/library_links/downloads/ESD/Bottom-up.3March05.Pavan.pdf.
  • In French: ‘Certificats d'économie d'énergie’.
  • Law no 2005–781 of 13 July 2005 to Set Up Energy Policy Directions (Loi de Programme fixant les orientations de la politique énergétique), OJ 14 July 2005.
  • Decree no 2006–600 of 23 May 2006 Related to Energy Savings Obligations in the Frame of the Energy Savings Certificates (Décret relatif aux obligations d'économie d'énergie dans le cadre du dispositif des certificats d'économie d'énergie), OJ 27 May 2006; Decree no 2006–603 of 23 May 2006 Related to Energy Savings Certificates (Décret relatif aux certificats d'économie d'énergie), OJ 27 May 2006; Decree no 2006–604 of 23 May 2006 Related to the National Registry for Energy Savings Certificates (Décret relatif à la tenue du registre national des certificats d'économie d'énergie), OJ 27 May 2006.
  • Statutory Instrument 2004 No 3392, the Electricity and Gas (Energy Efficiency Obligations) Order 2004, in force 22 December 2004. See also P Bertoldi and S Rezessy, n 80 above, at 41.
  • V Oikonomou, M Rietbergen and M Patel, ‘An ex ante Evaluation of a White Certificates Scheme in the Netherlands: A Case Study for the Household Sector,’ in Elsevier, 2006, 8; accordingly, the yearly targets are:
  • Pavan, n 160 above.
  • Bertoldi and Rezessy, n 80 above, at 39.
  • Article 1 of Decree no 2006–600 of 23 May 2006 Related to Energy Savings Obligations in the Frame of the Energy Savings Certificates. Meanwhile, according to Art 4 of the same Decree, this overall target shall be spread among the obliged parties, according to their amount of sales to individuals and enterprises.
  • Article 15 of the Law of 13 July 2005.
  • According to art 1(2) of SI 2004 No 3392, ‘fuel-standardised means, in respect of an improvement in energy efficiency, the number of kilowatt hours of improvement multiplied: (i) where the source of energy is coal, by 0.557; (ii) where the source of energy is electricity, by 0.801; (iii) where the source of energy is gas, by 0.353; where the source of energy is liquid petroleum gas, by 0.398; or where the source of energy is oil, by 0.464’.
  • According to art 1(2) of SI 2004 No 3392, ‘lifetime-discounted means, in respect of an improvement in energy efficiency, the number of kilowatt hours of improvement discounted by 3.5% a year over its lifetime’.
  • Bertoldi and Rezessy, n 80 above, at 41.
  • Ibid, 41.
  • Article 3(2) of SI 2004 No 3392.
  • V Oikonomou and M Patel, n 44 above, at 10.
  • V Oikonomou and M Patel, n 44 above, at 14 and 17.
  • Ibid, 14.
  • Bertoldi and Rezessy, n 80 above, at 41.
  • Ibid, 50.
  • Article 14(I) of the Law of 13July 2005 and art 2 of Decree no 2006–600 of 23 May 2006 Related to Energy Savings Obligations in the Frame of the Energy Savings Certificates.
  • Article 2 of Decree no 2006–600 of 23 May 2006 Related to Energy Savings Obligations in the Frame of the Energy Savings Certificates.
  • Article 2 of Decree no 2006–600 of 23 May 2006 Related to Energy Savings Obligations in the Frame of the Energy Savings Certificates.
  • P Bertoldi and S Rezessy, n 80 above, at 50.
  • P Bertoldi and S Rezessy, n 80 above, at 75.
  • Article 1 of Decree no 2006–603 of 23 May 2006 Related to Energy Savings Certificates.
  • V Oikonomou, M Rietbergen and M Patel, ‘An ex ante Evaluation of a White Certificates Scheme in the Netherlands: A Case Study for the Household Sector,’ see n 165 above, at 2, 3 and 7.
  • P Bertoldi and S Rezessy, n 80 above, at 75.
  • Accordingly, the lists provided in the appendixes of the Ministerial Decrees cover: ‘rephrasing of electric systems; electric motors and their applications; lighting systems; reduction of electricity leaking; switching from electricity to other fuels when this produces primary energy savings; reduction of electricity consumption for heating purposes; reduction of electricity consumption for air conditioning; high efficient electric appliances; high efficient office equipment; switching from other fuels to electricity when this produces primary energy savings; reduction of primary energy consumption for domestic heating, ventilation and air conditioning system; promotion of end-use technologies fuelled by renewable sources; electric and gas-fuelled vehicles’; Pavan, n 160 above.
  • In particular, some guidelines on projects’ preparation and conformity were issued; ibid.
  • In Italian: Autorità per l'energia elettrica e li gas.
  • V Oikonomou and M Patel, n 44 above, at 16.
  • Pavan, n 160 above.
  • According to art 5(1) (a) of SI 2004 No 3392, ‘the Authority shall approve an action notified under paragraph (2) (a) if it is satisfied that the action would promote an improvement in energy efficiency in relation to domestic consumers and estimate what improvement in energy efficiency would be attributable to that action’.
  • Office of Gas and Electricity Markets.
  • Those set of measures cover: ‘cavity wall insulation; boiler end-of-life replacement with condensing boiler; loft insulation top-up, fridge saver-type schemes, appliance replacement—higher efficiency models; compact fluorescent light bulbs (new and extra bulbs); hot water tank insulation—new; tank insulation—top up’; V Oikonomou and M Patel, n 44 above, at 18.
  • Ibid, 18.
  • P Bertoldi and S Rezessy, n 80 above, at 41; see also art 1 (2) of SI 2004 No 3392.
  • Article 2 of Decree no 2006–603 of 23 May 2006 Related to Energy Savings Certificates.
  • Accordingly, a list of potential actions can be outlined: ‘substitution with low energy light bulbs; loft insulation; use of double glazing; installation of heating control mechanisms; replacement of domestic appliances with more efficient equipment; replacement of boilers or water heaters by more efficient equipment or thermal renewable energy equipments; fitting of insulating jackets to water heaters; boiler maintenance; creation of wood-fired heating systems for district heating or in industry’; International Energy Agency, White Certificates: Description of the French Scheme, accessed in May 2006 at www.iea.org/textbase/work/2006/renewableheating/Session2/Paper_Description%20French%20Scheme_JURCZAC.pdf.
  • Article 15 of the Law of 13 July 2005.
  • Minister for Industry, ‘François Loos Presented this Morning to the Ministers Council the Decree Related to Energy Savings Obligations (François Loos a présenté ce matin en Conseil des Ministres le décret relatif aux obligations d'économie d'énergie),’ in Press Releases, 23 May 2006, No 269.
  • EU Energy, ‘GME Reveals White Certificate Trading Timetable,’ in EU Energy, February 2006.
  • Pavan, n 160 above.
  • Practically, ‘the total amount of energy saved is calculated by multiplying the number of installed high-efficiency appliances and devices with preset values for the energy savings per appliance and per device’; V Oikonomou and M Patel, n 44 above, at 8.
  • Pavan, n 160 above.
  • The ‘measure based evaluation’ approach is also known as the ‘Energy monitoring plans’; ibid.
  • P Bertoldi and S Rezessy, n 80 above, at 62.
  • Ibid, 41.
  • V Oikonomou, M Rietbergen and M Patel, ‘An ex ante Evaluation of a White Certificates Scheme in the Netherlands: A Case Study for the Household Sector,’ see n 165 above, at 7.
  • P Bertoldi and S Rezessy, n 80 above, at 60.
  • Ibid, 60. For instance, considering the replacement of refrigerators as an example, if the reference trend in 2005 is class A, one may assume that it should be A+ in 2007 and perhaps A++ in 2009.
  • V Oikonomou, M Rietbergen and M Patel, ‘An ex ante Evaluation of a White Certificates Scheme in the Netherlands: A Case Study for the Household Sector,’ see n 165 above, at 7.
  • Ibid, 7.
  • In Italian: Gestore Mercato Elettrico, ‘GME’.
  • Université Catholique de Louvain, Unité d'Ecologie des Prairies et des Grandes Cultures, Financing Case Studies: Italy—White Certificates, accessed in May 2006, at http://64.233.183.104/search?q=cache:XKMo3CbhbOkJ:www.ecop.ucl.ac.be/aebiom/K4RES-H/WP%25204.4%2520fmancing%2520case%2520studies%2520italy.doc++WP+4.4+Financing+-+Case+studies&hl=fr&gl=be&ct=clnk&cd=2.
  • Namely, once the AEEG has verified the exact amount energy savings, it entitles the GME to issue the corresponding amount of EE titles.
  • P Bertoldi and S Rezessy, n 80 above, at 70.
  • V Oikonomou and M Patel, n 44 above, at 14.
  • P Bertoldi and S Rezessy, n 80 above, at 72 and 75.
  • Article 5 of Decree no 2006–603 of 23 May 2006 Related to Energy Savings Certificates.
  • P Bertoldi and S Rezessy, n 80 above, at 75.
  • Article 15 of the Law of 13 July 2005.
  • P Bertoldi and S Rezessy, n 80 above, at 72.
  • P Bertoldi and S Rezessy, n 80 above, at 75.
  • Université Catholique de Louvain, Unité d'Ecologie des Prairies et des Grandes Cultures, Financing Case Studies: Italy—White Certificates, n 215 above.
  • Autorità per l'Energia Elettrica e il Gas and Gestore Mercato Elettrico, ‘White Certificates Market Ready to Go,’ in Press Releases, 2 May 2005.
  • EU Energy, ‘GME Reveals White Certificate Trading Timetable,’ n 202 above.
  • V Oikonomou and M Patel, n 44 above, at 19.
  • V Oikonomou and M Patel, n 44 above, at 19.
  • Ibid, 17.
  • P Bertoldi and S Rezessy, n 80 above, at 75.
  • Ibid, 41.
  • Ibid, 75.
  • Articles 14(III) and 16 of the Law of 13 July 2005.
  • V Oikonomou and M Patel, n 44 above, at 20.
  • Article 14(III) of the Law of 13 July 2005.
  • V Oikonomou and M Patel, n 44 above, at 11.
  • P Bertoldi and S Rezessy, n 80 above, at 57.
  • V Oikonomou and M Patel, n 44 above, at 15.
  • O Langniss and B Praetorius, ‘How Much Market Do Market-Based Instruments Create? An Analysis for the Case of White Certificates,’ n 83 above, at 203.
  • P Bertoldi and S Rezessy, n 80 above, at 57.
  • Ibid, 57.
  • Ibid, 57.
  • W Grattieri, ‘Energy Efficiency Obligations: the Italian Scheme,’ in European Energy Law Seminars, Noordwijk aan Zee, the Netherlands, 16 May 2006.
  • FederUtility, L Andrada, White Certificates—The Italian Experience, accessed in May 2006, at http://66.249.93.104/search?q=cache:Hda7PzXsg_0J:www.seea.government.bg/documents/Informacia/konferencia/00004.ppt+federutility+white+certificates&hl=fr&gl=be&ct=clnk&cd=1.
  • Bertoldi and Rezessy, n 80 above, at 76.
  • V Oikonomou, M Rietbergen and M Patel, ‘An ex ante Evaluation of a White Certificates Scheme in the Netherlands: A Case Study for the Household Sector,’ see n 165 above, at 7.
  • P Bertoldi and S Rezessy, n 80 above, at 76.
  • Article 7 of Decree no 2006–600 of 23 May 2006 Related to Energy Savings Obligations in the Frame of the Energy Savings Certificates.
  • Article 14(IV) of the Law of 13 July 2005.
  • V Oikonomou, M Rietbergen and M Patel, ‘An ex ante Evaluation of a White Certificates Scheme in the Netherlands: A Case Study for the Household Sector,’ see n 165 above, at 7. This table is inspired from the table proposed by V Oikonomou, M Rietbergen and M Patel.
  • P Bertoldi and S Rezessy, n 80 above, at 109.
  • EU Energy, ‘France Sets Out Views on Common EU Energy Policy,’ in EU Energy, February 2006.
  • H Van Houtte, The Law of International Trade (Sweet & Maxwell, 2002), n 76.
  • General Agreement on Tariffs and Trade (‘GATT’), Geneva, 1947, in force January 1948.
  • Practically, the United States did not support such idea; H Van Houtte, n 254 above, at 76.
  • The GATT was granted provisional effect from 1 January 1948 thanks to the Protocol of Provisional Application; ibid, 76.
  • H Van Houtte, n 254 agove, at 77.
  • Marrakech Agreements, Marrakech, April 1994, in force January 1995.
  • General Agreement on Trade in Services, Marrakech, April 1994, in force January 1995.
  • General Agreement on Trade-Related Aspects of Intellectual Property Rights, Marrakech, April 1994, in force January 1995.
  • The question of the qualification of WhCs as a good or service will be further explored below.
  • International Trade Centre and Commonwealth Secretariat, Business Guide to the World Trading System, International Trade Centre UNCTAD/WTO, 1999, 55.
  • Article I of the GATT.
  • Article III of the GATT.
  • Article XI of the GATT.
  • Article II of the GATS.
  • Article XVII of the GATS.
  • International Trade Centre and Commonwealth Secretariat, Business Guide to the World Trading System, n 263 above, at 12.
  • Preamble of the GATT.
  • Article I:3(b) of the GATS.
  • www.wto.org.
  • According to Article 1:2 of the GATS, ‘trade in services is defined as the supply of a service: (a) from the territory of one Member into the territory of any other Member; (b) in the territory of one Member to the service consumer of any other Member; (c) by a service supplier of one Member, through commercial presence in the territory of any other Member; or (d) by a service supplier of one Member, through presence of natural persons of a Member in the territory of any other Member’.
  • International Trade Centre and Commonwealth Secretariat, Business Guide to the World Trading System, n 263 above, at 192.
  • WTO Secretariat, Services Sectoral Classification List of 10 July 1991, MTN.GNS/W/120 (hereafter ‘W/120’).
  • WTO Secretariat, Guide to the GATS, An Overview of Issues for Further Liberalization of Trade in Services (Kluwer Law International, 2000), p 262.
  • 11 (g) (a) of W/120.
  • 1(f) (h) of W/120.
  • 1 (f) (j) ofW/120. Other energy related services are tackled by the GATS, namely: technical testing and analysis services (1(f) (e)); related scientific and consulting services (1(f) (m)) and maintenance and repair of equipment (1(f) (n)).
  • WTO Secretariat, Guide to the GATS, An Overview of Issues for Further Liberalization of Trade in Services, n 276 above, at 262.
  • For instance, obliged parties in the Italian, English and French schemes outlined above are the energy suppliers.
  • The W/120 refers continuously to the CPC codes.
  • The according code in the CPC is ′88700’.
  • That is to say outside of a vertically integrated undertaking; WTO Secretariat, Guide to the GATS, An Overview of Issues for Further Liberalization of Trade in Services, n 275 above, at 262.
  • www.wto.org.
  • Doha Ministerial Declaration of 14 November 2001, WT/MIN(01)/DEC/1.
  • Paragraph 31 (iii) of the Doha Ministerial Declaration.
  • Such a conclusion is drawn from the analysis of the proposals on energy services submitted by the United States (S/CSS/W/24 of 18 December 2000) and the European Communities (S/CSS/W/60 of 23 March 2001) and the lists of environmental goods submitted by the United States (TN/TE/W/52 of 4 July 2005) and of the European Communities (TN/TE/W/56 of 5 July 2005).
  • World Trade Organization, Committee for Trade and Environment Special Session, EC Submission on Environmental Goods of 5 July 2005, TN/TE/W/56, 13.
  • World Trade Organization, Committee for Trade and Environment, Special Session, Initial List of Environmental Goods of 4 July 2005, Submission by the United States, TN/TE/W/52, 1.
  • See ‘Advantages of harmonisation’ above.
  • See ‘Monitoring, verification and issuing of certificates’ above.
  • Agreement on Technical Barriers to Trade, Marrakech, April 1994; in force January 1995.
  • Agreement on Subsidies and Countervailing Measures, Marrakech, April 1994, in force January 1995.
  • Article XXIV:5 of the GATT.
  • International Trade Centre and Commonwealth Secretariat, Business Guide to the World Trading System, n 262 above, at 60.
  • S Dröge et al, ‘National Climate Change Policies and WTO Law: a Case Study of Germany's New Policies,’ in World Trade Review, Cambridge University Press, July 2004, 174.
  • J Wiers, Trade and Environment in the EC and the WTO, A Legal Analysis (Europa Law Publishing, 2002), p 267.
  • The OECD makes the following distinction: ‘A process or production method can affect the characteristics of a product so that the product itself may pollute or degrade the environment when it is consumed or used (product-related PPMs). Alternatively, a process or method itself can have a negative impact on the environment through, for example, the release of pollutants into the air or water during the production stage (non-product-related PPMs),’ K Wiers, n 298 above, p 267.
  • International Trade Centre and Commonwealth Secretariat, Business Guide to the World Trading System, n 264 above, at 85.
  • J Wiers, n 298 above, at 276.
  • The Panel combined the texts of Article III and Note and Article III and concluded on this basis that ‘Article III covers only measures affecting products as such’ and that ‘the Note ad Article III covers only those measures that are applied to the product as such’; Report of the Panel, United States—Restrictions on Imports of Tuna (‘Tuna/Dolphin ‘), Not Adopted, circulated on 16 August 1991, paras 5.8–5.14.
  • Article XX of the GATT is the Article providing for derogations under the GATT free trade principles. However, Art III allows for a limited derogation in case the goods do not qualify as like products or competitive or substitutable products. Such distinction will be further explained in the following part of this article.
  • Report of the Panel, United States—Restrictions on Imports of Tuna (‘Tuna/Dolphin’), Not Adopted, circulated on 16 August 1991.
  • www.wto.org.
  • Report of the Panel, United States—Restrictions on Imports of Tuna (‘Tuna/Dolphin H’), Not Adopted, circulated on 16June 1994.
  • G van Calster, International Trade and the Environment, Encyclopaedia of Life Support Systems, at www.eolss.net, accessed in October 2005, 16.
  • Report of the Appellate Body of 12 October 1998 on United States-Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R.
  • G van Calster, International Trade and the Environment, n 307 above, at 23.
  • International Trade Centre and Commonwealth Secretariat, Business Guide to the World Trading System, n 263 above, at 263.
  • Those examples were taken from the indicative list of eligible projects under the Italian scheme outlined above.
  • Articles III:2 and III:4 of the GATT.
  • Article III:1 and Interpretative note Ad III: 2 of the GATT.
  • Border Tax Adjustments, Report of the Working Party of 2 December 1970, L/3464.
  • Basically, should the GATT undertake a narrow understanding, such discriminations are unlikely to be covered.
  • P Ruttley, M Weisberger and F Mucklow, ‘Mechanisms for Regulating Environmental Barriers to Trade Within the WTO,’ in J Reuvid (ed), A Handbook of World Trade, A Strategic Guide to Trading Internationally (Kogan Page, 2004), p 134.
  • Article XX(b) and (g) of the GATT.
  • Report of the Panel of 7 November 1990, Thailand—Restrictions on Importation of and Internal Taxes on Cigarettes, DS10/R-37S/200.
  • Report of the Appellate Body of 20 May 1996, United States—Standards for Reformulated and Conventional Gasoline, WT/DS2/9.
  • Report of the Appellate Body of 12 October 1998 on United States—Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R.
  • Report of the Appellate Body of 20 May 1996, United States—Standards for Reformulated and Conventional Gasoline, WT/DS2/9.
  • Annex 1.1 of the TBT.
  • Annex 1.2 of the TBT.
  • J Wiers, n 298 above, at 202.
  • Ibid, 298.
  • See the text of the Annex of the TBT: while a technical regulation lays down product characteristics and their related PPMs, a standard provides rules, guidelines or characteristics for products or related PPMs.
  • See the Annex of the TBT: both the technical regulations and standards definitions refer to ‘terminology, symbols, packaging, marking or labelling requirements as they apply to a product, process or production method’.
  • J Wiers, n 298 above, at 299.
  • Report of the Panel, Australia—Measures Affecting the Importation of Salmon (‘Australia—Salmon’), WT/DS18/R.
  • Report of the Appellate Body of 12 March 2001, European Communities—Measures Affecting Asbestos and Asbestos-Containing Products, WT/DS135/AB/R, para 80: ‘through a specialised legal regime that applies solely to a limited class of measures. For these measures, the TBT Agreement imposes obligations on Members that seem to be different from, and additional to, the obligations imposed on Members under the GATT 1994.’
  • Report of the Appellate Body of 12 March 2001, European Communities—Measures Affecting Asbestos and Asbestos-Containing Products; J Wiers, n 298 above, at 237.
  • Article 2:2 of the TBT.
  • Article 2:2 of the TBT.
  • Article 2:2 of the TBT.
  • G van Calster, International and EU Trade Law, The Environmental Challenge (Cameron May, 2000), p 317.
  • Article 2:5 of the TBT.
  • Z Wiang Hang and L Assunção, ‘Domestic Climate Policies and the WTO,’ in The World. Economy (Blackwell Publishing, March 2004), p 370.
  • Article XVI: 1 of the GATT.
  • Accordingly, Article 1:1 of the SCM defines a subsidy: ‘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 within the territory of a Member…, ie where: (i) a government practice involves a direct transfer of funds (eg grants, loans, and equity infusion), potential direct transfers of funds or liabilities (eg loan guarantees); (ii) government revenue that is otherwise due is foregone or not collected (eg fiscal incentives such as tax credits); (iii) a government provides goods or services other than general infrastructure, or purchase good; (iv) a government makes payments to a funding mechanism, or entrusts or directs a private body to carry out one or more of the type of functions illustrated in (i) to (iii) above which would normally be vested in the government and the practice, in no real sense, differs from practices normally followed by governments; OR (a) (2) there is any form of income or price supported in the sense of Article XVI of GATT 1994; AND (b) a benefit is thereby conferred.’
  • According to Article 2.1 of the SCM, specificity is understood: ‘(a) where the granting authority, or the legislation pursuant to which the granting authority operates, explicitly limits access to a subsidy to certain enterprises; (b) where the granting authority, or the legislation pursuant to which the granting authority operates, establishes objective criteria or conditions governing the eligibility for, and the amount of, a subsidy, specificity shall not exist, provided that the eligibility is automatic and that such criteria and conditions are strictly adhered to. The criteria or 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 application of the principles laid down in subparagraphs (a) and (b), there are reasons to believe that the subsidy may in fact be specific, other factors may be considered. Such factors are: use of a subsidy programme by a limited number of certain enterprises, predominant use by certain enterprises, the granting of disproportionately large amounts of subsidy to certain enterprises, and the manner in which discretion has been exercised by the granting authority in the decision to grant a subsidy. In applying this subparagraph, account shall be taken of the extent of diversification of economic activities within the jurisdiction of the granting authority, as well as of the length of time during which the subsidy programme has been in operation.’
  • The WTO ‘jargon’ commonly refers respectively to ‘red,’ ‘amber’ and ‘green’ subsidies.
  • Article 2:3 of the SCM.
  • Article 3 of the SCM.
  • The concept of serious prejudice is clarified in Article 6:1 of the SCM and is therefore ‘deemed to exist in the case of: (a) the total ad valorem subsidization of a product exceeding 5 per cent; (b) subsidies to cover operating losses sustained by an industry; (c) subsidies to cover operating losses sustained by an enterprise, other than those one-time measures which are non-recurrent and cannot be repeated for that enterprise and which are given merely to provide time for the development of long-term solutions and to avoid acute social problems; (d) direct forgiveness of debt, i.e. forgiveness of government-held debt, and grants to cover debt repayment’.
  • Article 5 of the SCM.
  • Articles 8:1 and 8:2 of the SCM.
  • V Articles 4, 7 and 9 of the SCM.
  • Article 10 of the SCM.
  • Such investigations are based mainly on petitions from the affected industries. Articles 11, 12 and 13 of the SCM.
  • Indeed, to be exempted under Article 8:2 (c) of the SCM, a subsidy assisting existing facilities to adapt to new environmental requirements must be: ‘(i) a one-time nonrecurring measure; and (ii) is limited to 20 per cent of the cost of adaptation; and (iii) does not cover the cost of replacing and operating the assisted investment, which must be fully borne by firms; and (iv) is directly linked to and proportionate to a firm's planned reduction of nuisances and pollution, and does not cover any manufacturing cost savings which may be achieved; and (v) is available to all firms which can adopt the new equipment and/or production process.’

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