| Industrial policies have been widely used by countries to achieve specific economic or social goals,and subsidies are an important tool of industrial policies.Nowadays,more and more state-dominated economies are integrated into the international trade system,and state-owned enterprises have become important participants in the trade market.The subsidy operation of state-owned enterprises in international trade has become the focus of international trade rules.State-owned enterprises can be both recipients and providers of subsidies: On the one hand,state-owned enterprises can accept government subsidies to develop industries and form competitive advantages;On the other hand,state-owned enterprises can also be a tool for the country to achieve its policy goals by providing subsidies for downstream industries to promote development.It is common for the governments of WTO members to choose to provide subsidies for downstream industries through state-owned enterprises instead of directly providing subsidies.It is often out of the need to circumvent international subsidy rules,secretly forming an unfair competitive advantage and affecting the fairness of market competition.In the face of this situation,whether state-owned enterprises can constitute eligible subsidy subjects has become a source of international concern.The Agreement on Subsidies and Countervailing Measures(hereinafter SCM Agreement)under the WTO system stipulates that “public bodies” are one of the subjects of subsidies.The judgment on the eligibility of state-owned enterprises as the subject of subsidies is mainly based on the identification of “public bodies”.If a state-owned enterprise is identified as a “public body”,it can directly constitute an eligible subject of subsidies.If state-owned enterprise cannot be identified as a“public body”,it must be proven that it is a private body instructed or entrusted by the government or a public body in order to be qualified as a subsidy subject.However,the SCM Agreement does not clearly define “public body”.The interpretation of the“Government Control Test” and the “Government Function Test” have serious jurisprudential defects,and the subsidies provided by WTO members through state-owned enterprises in a non-transparent manner cannot be effectively regulated.The “Government Ownership Test” appropriately explains the “public body” and identifies it as a government-owned entity,which expands the scope of regulation.State-owned enterprises can be easily identified as “public body”,thus constituting eligible subsidy subjects,subject to strict substantive and procedural obligations.Developed countries led by the United States have also explored the eligibility of state-owned enterprises as subsidies in regional trade agreements.The Trans-Pacific Partnership Agreement(hereinafter TPP)innovatively introduced the concept of subsidy-like “non-commercial assistance”,which was inherited by the Comprehensive and Progressive Agreement for Trans-Pacific Partnership(hereinafter CPTPP)and the U.S.-Mexico-Canada Agreement(hereinafter USMCA).The non-commercial assistance rule discusses state-owned enterprises,which stipulates that the government or state-owned enterprises shall not provide illegal subsidies by virtue of government ownership or control.State-owned enterprises are directly recognized as qualified subsidy subjects.This provision is essentially consistent with the “Government Ownership Test” and fully reflects the development trend of international trade and economic rules,which helps to regulate the implicit subsidies through state-owned enterprises.Although the non-commercial assistance rules of the new regional trade agreements are binding only between the parties,their importance cannot be ignored in view of their spillover effects.It is a general trend that state-owned enterprises can be recognized as qualified subsidy subjects.China has formally applied to join the CPTPP in September 2021.However,China’s state-owned enterprises are huge and will inevitably be restricted in the international trade market.China cannot always insist on the “Government Function Test” and should try to accept the “Government Ownership Test”.More importantly,China should improve the domestic competition law system,actively implement the reform of state-owned enterprises,and adapt to the new changes in international subsidy rules as soon as possible. |
