한-EU 자유무역협정 상 보조금 규정의 검토

The distinct feature of the Korea-EU Free Trade Agreement (hereinafter, “FTA”) is that it places both provisions of competition and subsidies under the same Chapter. This structural distinction seems to be greatly influenced by the EU’s competition policy, which affects the substantial content of the Agreement. The provision of subsidies under the FTA Agreement is a set of rules that simply identify the rights and obligations of the parties. Under the Korea-EU FTA, it treats the issue of subsidies in both Chapters on trade remedy and competition. The definition and nature of subsidies under the Korea-EU FTA are in accordance with the ones provided under the WTO Agreement on Subsidies and Countervailing Measures. The competition policy focuses on the “fairness of competition,” whereas trade remedy focuses on the “remedy.”Such a difference originates from the view of the EU that the distortion of competition under the common market could be found in the conduct of either private entities or member states. As a consequence of reflecting the EU’s policy on subsidies in the Korea-EU FTA, the duty of notification seems to be more intensified, compared to the WTO Agreement on Subsidies and Countervailing Measures. Under the Chapter on trade remedy, it reads that the disputes on subsidies may not be brought before the dispute settlement system provided under the FTA. Rather, it may be brought before the WTO dispute settlement system. Thus, it is the WTO that still has to handle the disputes on subsidies between Korea and the EU. Moreover, there is a conceptual difference between the two types of subsidies that are prohibited under the WTO and the provisions of state-aid and subsidies under the EU law. Under the Chapter on competition, “[t]he Parties agree to use their best endeavours to remedy or remove through the application of their competition laws or otherwise, distorition of competition caused by subsidies in so far as they affect international trade.” In interpreting the term “distortion of competition caused by subsidies in so far as they affect international trade,” the provision of subsidies under the EU law should be put into consideration. Distortion of competition within the EU is found when a member state government selectively provides the state aid. However, such selectivity of the provision of state aid seems to be not all that different to the nature of “specificity” under the WTO Agreement on Subsidies and Countervailing Measures. In sum, the EU’s competition policy is well reflected in the provision of subsidies under the Korea-EU FTA in the sense that it is treated under the Chapter on competition. It is important to understand the characteristics of the provision of subsidies under the Korea-EU FTA in order to operate effectively.