WT/DS219/R
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ANNEX E
Questions and Answers
Contents Page
Annex E-1 Replies of Brazil to Questions of the Panel – First Meeting E-2
Annex E-2 Replies of Brazil to Questions of the European Communities – First
MeetingE-56
Annex E-3 Replies of the European Communities to Questions of the Panel -
First MeetingE-59
Annex E-4 Replies of the European Communities to Questions of Brazil E-102
Annex E-5 Response of the United States to Questions of the Panel to the third
partiesE-107
Annex E-6 Comments of Brazil on the Responses of the European Communities
to Questions from the Panel to the PartiesE-110
Annex E-7 Replies of Brazil to Questions of the Panel – Second Meeting E-121
Annex E-8 Replies of  the European Communities to Questions of the Panel –
Second MeetingE-136
Annex E-9 Comments of Brazil on the Responses of the European Communities
to the Panel's Questions – Second MeetingE-146
Annex E-10 Comments of the European Communities on Responses of Brazil –
Second MeetingE-152WT/DS219/R
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ANNEX E-1
REPLIES FROM BRAZIL TO QUESTIONS FROM THE PANEL
FIRST SUBSTANTIVE MEETING
ISSUE 1:  "NO SPECIAL REGARD TO BR AZIL AS A DEVELOPING COUNTRY",
"NO CONSTRUCTIVE REMEDIES EXPLORED"
To the EC:
1. With respect to Brazil's allegations under Article 15 AD, would the European
Communities have conducted itself in the same manner in an anti-dumping investigation
involving a developed country Member?  Is this relevant here?  If not, what is the meaning and
legal significance of the phrase "special regard" in the first sentence of Article 15.
To Brazil
:
2. Could Brazil comment on the European Communities statements in paragraphs 38-41 of
its first written submission -- and supporting documents submitted by the European
Communities -- that the European Communities raised the possibility of a price undertaking,
but that Tupy/Brazil did not appear to be interested in pursuing this as a possibility?  How do
these statements relate to Brazil's assertion on p. 21 of its first written submission that  "…at no
time has the EC suggested or tried to engage in any negotiations or discussions whatsoever with
regard to any proposition or initiative to prefer an y sort of constructive remedies other than the
imposition of the anti-dumping measures concerned"?
Brazil  points out that:
(a) as the EC’s reports themselves recognise, it was the Brazilian authorities who put the
matter on the agenda of those meetings; and
(b) at that time, the EC’s authorities made nothing but to suggest to the Brazilian
authorities that Tupy could offer a price undertaking.
The EC’s approach does not cope with the requirement established by the EC – Bed Linen
Panel whereby “the ‘exploration’ of possibilities [of constructive remedies] must be actively
undertaken by the developed country with a willingness to reach a positive outcome”.1
In any event, the EC’s authorities could not have complied with its obligations under the
second sentence of Article 15 unless they had given the Brazilian exporting producer notice or
information concerning the possibility of an undertaking.  By the very nature of a price undertaking,
the possibility of such a constructive remedy cannot be properly explored unless the authorities
suggest this option to the exporter.
However, the EC has never ‘suggested or tried to engage in any negotiations or discussions’
concerning a possible undertaking with Tupy.
This conclusion is further supported by the fact that, no public notice was issued detailing any
examination by the EC of the  ‘possibilities of constructive remedies’ with regard to Tupy, as required
                                                     
1 EC – Anti-Dumping Duties on Imports of Cotton-type Bed Linen from India , Panel Report,
WT/DS141/R, ‘EC – Bed Linen’ , para. 6.233.WT/DS219/R
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by Article 12.2 of the AD Agreement.  By implication this means that the EC did not consider the
exploration of ‘possibilities of constructive remedies ’ as ‘material’ within the meaning of Article 12.2.
In addition, the fact that the EC did not mention in either the Definitive or the Provisional Regulation
(or other related documents) that the possibility of an undertaking had been explored with regard to
the Brazilian exporter (whereas this was mentioned in relation to the Czech and Japanese exporters inthe same case) clearly demonstrates that the EC itself did not consider that it had made any effort in
this respect with regard to the Brazilian exporter.
3. In the course of the investigation, did Tupy/Brazil actively communicate to the
European Communities a desire to offer undertakings or to pursue any other kind of
"constructive remedy"?  If so, submit supporting documentation or indicate the relevant parts
of the record.
No.  However, Brazil recalls that the burden of actively undertaking the exploration of
constructive remedies lies on the developed country Member.  In this context, Brazil notes that the EC
has never mentioned to the Brazilian government that it considered a concrete price undertaking or
any other kind of constructive remedy.  Furthermore,  the EC investigators have never raised this issue
in any way with Tupy.  Consequently, the EC has never indicated to Tupy that a constructive remedy
was a concrete possibility that could be discussed with the EC.
4. Does Brazil believe that the European Communities explored the possibility of imposing
a "lesser duty"?  If so, on what basis?  In Br azil's view, what else could/should the European
Communities have done to fulfill its obligation under Article 15 in this context?  Did Brazil
suggest any alternative to a price undertaking at any time in the proceedings?  If so, indicate the
relevant part of the record.
Brazil admits that the EC did consider the possibility of imposing a lesser duty. However, this
is not something that they would have done as a direct consequence of Brazil’s status as a developing
country.  Indeed, as a matter of general practice and as legally required by the Basic Regulation, the
EC will always impose a lesser duty in an anti-dumping investigation, regardless of whether the
country under consideration is developed or developing.
Brazil notes that the EC – Bed Linen  Panel did not come to any conclusion as to what actions
other than “lesser duty” and “price undertaking” might be considered to constitute “constructiveremedies” under Article 15.
2  The Panel’s statement implies that there might be other constructive
remedies under Article 15 to be explored by the developed country Member. Brazil is of the opinion
that in this respect the notion of ‘constructive remedi es’ is similar to that of ‘undertakings’.  In this
context, Brazil points out that, in practice, the EC accepts undertakings other than price undertakings.
For example, the EC has on several occasions considered it more appropriate to accept an undertakingthat limits the quantities to be exported to the Community.
3  Brazil therefore contends that the EC also
                                                     
2 Idem , para 6.229.
3 See, e.g.,  Commission Decision N° 93/521/EEC  of 3 September 1993 accepting undertakings given in
connection with the anti-dumping review in respect of imports of binder and baler twine originating in Brazil,terminating the anti- subsidy review proceeding with re gard to these imports and terminating the anti-dumping
and anti-subsidy review in respect of imports of binder and baler twine originating in Mexico,
 OJ L 221, 1993,
p.28; Commission Decision No 303/96/ECSC of 19 February 1996 imposing a definitive anti-dumping duty onimports into the Community of certain grain oriented  electrical sheets originating in Russia, collecting
definitively the provisional duty imposed and accepting an undertaking offered in connection with such imports,
OJ L 42, 1996, p. 7; Commission Decision No 790/97/ EC of 24 October 1997 accepting an undertaking  in
connection with the anti-dumping proceedings concerning imports of certain seamless pipes and tubes of iron ornon-alloy steel originating  in Hungary, Poland, the Czech Republic, Romania and the Slovak Republic, OJ L322, 1997 p. 63.WT/DS219/R
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failed to explore all the possibilities of constructive remedies by not considering undertakings other
than price commitments.  Brazil did not suggest any alternative to a price undertaking at any time in
the proceedings.
5. Would Brazil elaborate upon the specific rele vance of its statement on page 21 of its first
written submission that "…the EC has even fo und it appropriate to increase significantly the
level of the anti-dumping duty that it has impo sed on the Brazilian imports from the provisional
stage (duty imposed at the level of 26.1 per cent) to the definitive stage (where the definitive
duty was imposed at the level of 34.8 per cent)"? Explain the relevance of this to Brazil's
allegations under Article 15 AD.
Brazil made this statement in order to illustrate the way that the EC did not take account of
the special situation of Brazil as a developing country, where the system of indirect taxation is more
cumbersome than in developing countries.  Brazil expected the EC to be more considerate and
understanding in this respect.  The reversal of the EC’s approach at the definitive stage demonstrates,
in Brazil’s view, that the EC showed no such deference or ‘special regard’ to the special situation of
Brazil as a developing country.
To both parties:
6. What legal obligations does Article 15 AD impose? Could Brazil comment on the
European Communities statement in paragraph 31 of its first written submission that "…thefirst sentence [of Article 15] imposes no legal ob ligation"?  If there is more than one obligation
in Article 15, what is the relationship, if any, be tween these obligations i.e.  are they separate,
independent obligations, or are they interrelated and dependent?  Explain your response, with
reference to the customary rules of interpretati on of public international law and any relevant
material.
The first sentence of Article 15 obliges the developed country Members to give special regard
to the special situation of developing country Members when considering the application of anti-
dumping measures, while the second sentence of this  provision lays down an obligation of exploring
constructive remedies before applying anti-dumping duties where they would affect the essential
interests of developing country Members.
Brazil disagrees with the EC statement that the first sentence of Article 15 “imposes no legal
obligation”.  Brazil is aware of the passage in the EC – Cotton Yarn  panel report
4 quoted by the EC5
that “assuming (…) arguendo that an obligation was imposed by the first sentence of Article 13
[GATT Anti-Dumping Code], its wording contained no operative language delineating the extent of
the obligation” (emphasis added).  However, Brazil cannot accept the EC’s interpretation of this
quotation, namely that the first sentence imposes no legal obligation.  This excerpt in fact confirms
that there is an obligation.  It is the extent of  this obligation that is not determined by ‘operative
language’.  Brazil further points out that6, if an obligation did not arise from the first sentence of
Article 15, it would be dead letter.  It would therefore be difficult to understand why such a sentence
was included in the AD Agreement at all.  Moreover, it is a basic rule of interpretation that a treatymust be construed in the light of its object and purpose.
7  The preamble to the Agreement establishing
the World Trade Organisation reads: “recognising further that there is need for positive efforts to
ensure that developing countries, and especially the least developed among them, secure a share in the
                                                     
4 EC – Imposition of Anti-Dumping Duties on Imports of Cotton Yarn from Brazil , Panel Report,
ADP/137, of 30 October 1995, ‘EC – Cotton Yarn’, para.  582.
5 ECFS, para 31, footnote 14.
6 The passages below largely parallel the discussion in Brazil’s Second Submission, particularly in
paras.3 to 12.
7 Vienna Convention on the Law of Treaties, 1969, Article 31(1).WT/DS219/R
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growth in international trade commensurate with the needs of their economic development”.  As the
WTO Agreements form a package, when taking actions under the different Agreements Members
must respect this principle.  Therefore, the first sentence of Article 15 of the AD Agreement must be
interpreted in the light of this statement. Brazil in fers from the foregoing that the first sentence of
Article 15 of the Anti-Dumping cannot be interpreted in a way that renders it meaningless.
Brazil contends that the first sentence of Article 15 sets out an obligation of a general nature,
while the second sentence lays down one possible way of fulfilling this obligation.
7. Is our understanding correct that the European Communities found that the level of
dumping margins were in all cases lower than th e injury threshold and that the level of duty
was thus set at the level of the dumping ma rgins found?  Comment, with reference to the
obligation(s) in Article 15 AD and the relevant portions of the record.
Yes, the Panel’s understanding is correct. According to Articles 7(2) and 9(4) of the Basic
Regulation, the EC is bound to impose a duty at a level equal either to the margin of dumping or to
the amount necessary to remove injury sustained by the Community industry, whichever is lower.8
The EC applies this rule whatever the status - developing or developed - of the Member in which the
exporter is located.  In conclusion, the choice by the EC to impose a duty at the level of dumping
margins is not a consequence of the obligations set out in Article 15 of the AD Agreement.
8. Under Article 15 AD, is it for the Member imposing the measure to " propose "
constructive remedies"? Provide the basis for your re sponse.  How, if at all, does this relate to
the obligations in Article 8 (and any other provisions) of the AD Agreement ?  How, by whom
and when should a price undertaking be sought/accepted for the purposes of Article 15 AD?
The obligation arising out of the second sentence of Article 15 of the AD Agreement is an
obligation to ‘explore’ possibilities of constructive remedies rather than an obligation to enter into
constructive remedies as stated in the EC – Bed Linen panel report which reads in the relevant part:
“[t]aken in its context, …, and in light of the object  and purpose of Article 15, we do consider that the
“exploration” of possibilities must be actively undertaken by the developed country authorities with a
willingness to reach a positive outcome”.9  Thus, Brazil submits that an actively undertaken
exploration (investigation, examination, scrutiny)10 should involve the proposition of possibilities of
constructive remedies.
Brazil is of the view that Article 15 does constitute an exception to Article 8 of the AD
Agreement in the sense that, under Article 15, authorities have to propose constructive remedies
whereas this is not the case under Article 8 of the AD Agreement.11
9. Do the parties agree that the obligation(s) in Article 15 AD arise(s) only with reference
to the imposition of definitive anti-dumping measures at the end of the investigative process?
Refer to any relevant material in responding.
Brazil contends that the obligation to ‘explore’ possibilities of constructive remedies can arise
before the imposition of Provisional measures.  Indeed, it is noted that this happened in the present
case with regard to the Czech exporter.12  Brazil submits that the imposition of a provisional measure,
irrespective of the form of it takes, adversely affects the interests of the developing country Member
concerned, for it restricts, since its very beginning, the access to the developed country market for the
                                                     
8 See Articles 7.2, 8.1 and 9.4 of the Basic Regulation (BRL-24).
9 ‘EC – Bed Linen’ , para 6.233
10 Ibid.
11 Article 8.5 of the AD Agreement reads: ‘Price undertakings may be suggested by the authorities of
the importing country (…)’.
12 See recital 195 of the Provisional Regulation (BRL-12).WT/DS219/R
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product concerned.  For instance, importers will likely to replace the investigated supplier by another
one in view of the uncertainties introduced by the provisional measures.
Brazil is aware of the Panel’s statement in the EC – Bed Linen report that “the AD Agreement
clearly distinguishes between provisional measures and anti-dumping duties, which term consistentlyrefers to definitive measures”.
13  Brazil cannot agree with this interpretation.  Were the Panel’s
reasoning prevail, there would be no need to qualify the term “duty” in the AD Agreement.  However,
that is not what happens in the Agreement. Brazil draws the Panel’s attention to Articles 12.2 and
12.2.2, which representatively read in the relevant part “…and of the termination of a definitive anti-
dumping duty” and “…the imposition of a definitive anti-dumping duty ” (emphasis added).  On the
other hand, if the intention of the draftsmen of the AD Agreement were to give a uniform meaning to
the term “duty” throughout the text, they would have used, for instance, a footnote, as in the case ofthe term “injury” (footnote 9 to Article 3).
10. What do the parties understand to constitute "constructive remedies" within the
meaning of Article 15 of the AD Agreement ?  Please refer to any relevant material.
Brazil notes that the EC – Bed Linen  Panel did not come to any conclusion as to what actions
other than “lesser duty” and “price undertaking” might be considered to constitute “constructive
remedies” under Article 15.
14  The Panel’s statement implies that there might be other constructive
remedies under Article 15 to be explored by the developed country Member.  In this context, Brazil
points out that, in practice, the EC accepts undertakings other than price undertakings.  For example,the EC has, in particular circumstances, considered  it more appropriate to accept an undertaking that
limits the quantities to be exported to the Community.
15
11. Is there an obligation under Article 15 AD to "communicate" to developing country
Members that an investigating authority is expl oring possibilities of constructive remedies?
No, there is not.  However, Brazil recalls that, in the present case, the EC failed to abide by its
obligations under the second sentence of Article 15 since no notice nor information regarding the
exploration, if any, of the possibility of a price undertaking was given by the EC to the Brazilian
exporting producer.  By the very nature of a price undertaking, the possibility of such a constructive
remedy cannot be properly explored unless the authorities suggest this option to the exporter.
In addition, Brazil submits that the exploration of possibilities of constructive remedies by
virtue of Article 15 of the AD Agreement is a ‘material’ issue within the meaning of Article 12.2 of
the AD Agreement.  Indeed it is essential for a developing country to have the possibility of measures
other than anti-dumping duties examined by the inve stigating authorities.  A public notice therefore
should be issued disclosing the investigating authorities’ findings and conclusions with regard to theexploration of possibilities of constructive remedies.
                                                     
13 ‘EC – Bed Linen’ , para 6.231.
14 Idem , para 6.229.
15 See, e.g.,  Commission Decision N° 93/521/EEC  of 3 September 1993 accepti ng undertakings given
in connection with the anti-dumping review in respect of imports of binder and baler twine originating in Brazil,terminating the anti- subsidy review proceeding with re gard to these imports and terminating the anti-dumping
and anti-subsidy review in respect of imports of binder and baler twine originating in Mexico,
 OJ L 221, 1993,
p.28; Commission Decision No 303/96/ECSC of 19 February 1996 imposing a definitive anti-dumping duty onimports into the Community of certain grain oriented  electrical sheets originating in Russia, collecting
definitively the provisional duty imposed and accepting an undertaking offered in connection with such imports,
OJ L 42, 1996, p. 7; Commission Decision No 790/ 97/EC of 24 October 1997 accepting an undertaking  in
connection with the anti-dumping proceedings concerning imports of certain seamless pipes and tubes of iron ornon-alloy steel originating  in Hungary, Poland, the Czech Republic, Romania and the Slovak Republic, OJ L322, 1997 p. 63.WT/DS219/R
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12. What factors should guide a panel’s consider ation as to whether the imposition of anti-
dumping measures would affect Brazil’s “essential interests” within the meaning of Article 15
AD?  Do the parties agree with the statement of the United States in its third party written
submission (para. 14) that the term “essential” implies a very high standard for the level of
national interest which the developing country must demonstrate would be affected by anti-dumping duties?
In Brazil’s view, it is for the developing country Member to assess whether its essential
interests are being affected.  As regards the statement by the United States, Brazil believes that this
too is an issue for the developing country Member to address.  Therefore, from Brazil’s point of view
the factors to be taken into account in determining whether Brazil’s essential interests have been
affected include the following:
(a) Tupy is the largest foundry in South America;(b) Tupy is one of the largest companies in the Brazilian metal industry, employing a
workforce of more than 4500 people;
(c) Brazilian authorities put the matter concerning the EC’s anti-dumping investigation
on Tupy’s exports of malleable cast iron tubes and pipe fittings on the agenda of
high-level bilateral meetings;  and
(d) Importance of exports in view of the external financial commitments of Brazil.
13. We note the section on "Undertakings" in the Definitive Regulation does not refer to
Tupy/Brazil.  Comment.
Brazil reiterates that the possibility of an undertaking has not been raised by the EC
investigators with Tupy.  Moreover, Brazil recalls the fact that the EC did not mention in the
Provisional and/or the Definitive Regulations that the possibility of an undertaking had been explored
with regard to the Brazilian exporter, although this was mentioned in relation to the Czech, the
Korean, the Thai and the Japanese exporters, i.e. all the other exporters other than the Chinese.
16  This
clearly demonstrates that the EC itself did not consider that (i) it had made any effort in this respect
with regard to the Brazilian exporter, and (ii) th at it viewed this issue as “material” within the
meaning of Article 12.2 of the AD Agreement.
                                                     
16 See the Provisional Duty Regulation (BRL-12 at pa ra 195) with regard to the undertaking accepted
by the Czech exporter and see the Definitive Duty Regulation (BRL-19, at paras 124 and 125) in relation to the
Czech, the Korean, the Thai and Japanese exporters.  It should be noted in this respect that the EC authorities
have not, as a matter of policy at the relevant time, been accepting undertakings from Chinese exporters.  TheChinese and the Brazilian exporters are the only exporters in this case in relation to which the EC makes nomention of an undertaking.WT/DS219/R
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14. Could Brazil elaborate upon its assertion on p. 32 of its first written submission that:
"…the Application did not contain a description of the volume and value of
production of the like product accounted for by the Applicants" and that "[t]he
Applicants provided information in respect of which the volume and value ofproduction of the like product accounted for by them only insofar as the same
could be broadly and rather inaccurately deduced from figures provided in
respect of total consumption, price undercutting calculations and the volume of
imports as a whole entering the EC."
Brazil made this assertion on the basis of the non-confidential information it had in its
possession in this respect. Brazil now withdraws its related claim.
15. Could the European Communities comment on this argument as it currently stands?
ISSUE 2:  "INAPPROPRIATE APPLICATION"
To the EC:
16. Brazil states:  "…the evidence provided by the Applicant did not comply with the
requirements of Article 5.3" (Brazil's oral statement at the first Panel meeting, para.  31).
Comment.
To both parties
17. What is the relationship between: (i) Articl es 5.2 and 5.3; (ii) Articles 5.2 and 5.8; (iii)
Articles 5.2 and 6.2 -- would a violation of one ne cessarily constitute a violation of the other?
Explain with reference to any relevant material.
Given that Brazil’s claims were based on the non-confidential version of the Application,
Brazil withdraws its claims regarding the Application under Issue 2.
18. What is the relationship between: (i) Arti cles 5.3 and 5.8; (ii) 5.3 and 6.2 -- would a
violation of one necessarily constitute a violation of the other? Explain with reference to anyrelevant material.
As stated in answer to question 17, Brazil w ithdraws its claims regarding the Application
under Issue 2.
19. Issue 3:  "No need to impose measures"
To the EC:
20. According to Brazil, the first "explicit co nsideration" by the European Communities of
the currency devaluation was on 20 July 2000 in the Disclosure Preceding the Definitive
Regulation.  Does the European Communities agree?  Is this relevant?  Why or why not?
To Brazil:
21. How, if at all, does the alleged non-disclosure of "detailed information" "showing
dumping margins after the devaluation took place" -- "ECSALUR file on the CD-ROM" that
the EC Commission states that it supplied to Tupy (but Tupy states that it received 10 pages out
of the 97) relate to a violation of Article VI of the GATT 1994  and Article 1 AD?WT/DS219/R
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Brazil referred to this matter under Issue 3 as in  Brazil’s view the circumstances described in
the Panel’s question must relate to the EC’s failure to attribute adequate importance to the massive
devaluation of the Brazilian currency.  The implications of this structural change in the Brazilian
economy, which the EC recorded, verified and adm itted, should have demonstrated to the EC that
circumstances had changed to such an extent that there was no need to impose measures to counteractdumping, as it no longer existed.  The first alternative claim made by Brazil under Issue 3 concerned
the EC’s attitude to this.   This attitude resulted in an inappropriate imposition of anti-dumping
measures where dumping did not exist in the market. Brazil claims that this constitutes a violation by
the EC of Article VI of the GATT 1994  and Article 1 of the AD Agreement .
22. In precisely what way (if at all) did the European Communities "fail… adequately to
evaluate the full impact of [the] devaluation" during the IP. (see p. 43, Brazil's first written
submission)?  Does Brazil agree that the da ta examined by the European Communities
pertaining to the IP established that dumping o ccurred during the IP?  Do Brazil's allegations
pertain exclusively to the period following the end  of the IP, including the period between the
end of the IP and the imposition of the measures?
The above statement (BFS para 191) relates to two main considerations dealt with by Brazil
in its First Submission.  The first concerned Brazil’s contention whereby following the devaluation of
the Brazilian currency the EC’s findings and determinations for the investigation period became
obsolete.  (As we are not contesting the findings with regard to the POI, this issue is dealt with here).
Secondly, as the devaluation took place towards the end of the investigation period and, as verified bythe EC, had a lasting effect for a period of more than two months, there were clear consequences, with
regard to the need to impose anti-dumping measures where no dumping had taken place, which
needed to be counteracted or offset.  This relates to the same claim as referred to in Brazil’s answer to
question 21 above.
As stated above and in Brazil’s First Submission (para 158), and also further elaborated on in
Brazil’s Second Submission (para 26 et seq .), Brazil does not deny that the general rule under
Article VI of the GATT 1994 and the AD Agreement is that the investigating authority acts in
compliance with these principles where the basis for its findings and determination relates to the IP.
Nonetheless, Brazil confirms its position whereby, even where the authorities of an importing
Member conclude, following a proper anti-dumping investigation, that the formal conditions of the
AD Agreement have been met so that anti-dumping measures may properly be imposed, theauthorities concerned must still consider whether the circumstances at the time prior to the imposition
make that imposition necessary.  As stated, it is Brazil’s view that in this case, the results of the EC’s
investigation during the IP became obsolete as a result of the Brazilian devaluation so that measures
should not have been adopted on that basis.
With regard to the timing considerations in the Panel’s question, Brazil’s dividing line is the
date of the devaluation.  As of that date and in view of the lasting effect of that devaluation, any
proper imposition of anti-dumping measures, or a decision to maintain such measures had to be
assessed, as the case may be, against the need to offset or counteract dumping.
23. What is the basis for Brazil's argument that the European Communities had an
obligation to examine data after th e end of the investigation period?
As further elaborated under Issue 3 in Brazil’s Second Submission (paras 24 et seq .), the
obligation to examine such post-IP data arises as a result of the need to assess the situation given twobasic requirements that Brazil identifies in this respect.  Firstly, in line with Brazil’s answer to
question 22 above, as there was no need to impose any anti-dumping measures to counteract injurious
dumping as this was non-existent after the IP, the EC was under a general obligation not to impose, or
at least to withhold measures, in this case.  Secondly, as Brazil has observed, the EC has developed its
own methodology to deal with situations where exceptional circumstances call for a reconsiderationWT/DS219/R
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of measures that could have otherwise been adopted in view of the general findings for the IP (see
also BFS paras 165 to 168 and see also Brazil’s answer to the Panel’s question 35).  Thus, in line with
the EC’s own methodology, in order to assess a post-IP situation, related post-IP data must be
examined.  The EC failed to apply this met hodology with regard to the Brazilian exporter.
24. What is the supporting documentation for the statement that "…the devaluation has
made the normal value of the product concerned significantly lower than the export price" (and
your statement that dumping had ceased by the end of the IP) in Brazil's first written
submission, p. 44.  To what time-period does this statement refer?
This statement (BFS 193) is supported by the electronic version of the Brazilian exporter’s
reply to the EC’s Questionnaire ("ECSALUR file on the CD-ROM") which Brazil submitted to the
EC and which the EC then used for its subsequent calculations, as also referred to in the Panel’s
question 21 above.
As has been mentioned, the Brazilian exporter received only 10 pages of the paper version of
the EC’s treated electronic file, which reportedly contains 97 pages.  Neither the Brazilian exporternor Brazil could therefore verify the EC’s full conclusions regarding possible occurrences of dumping
after the devaluation on 15 January 1999.  Furthermore, Brazil does not know whether these EC
findings concerned the full last quarter of the IP i.e. 1 January to 31 March 1999, which would then
also cover about two weeks of transactions at pre- devaluation terms, or whether they related to the
two and a half months of the post-devaluation period only.
However, an effort to simulate the EC’s methodology, as reflected in the 10 available pages
of that file (without zeroing dumping margins) and then applying it to the original electronic file
which Brazil had kept, has resulted in the conclusions which allowed for the statements referred to in
the Panel’s Question.  The two statements relate to the post-devaluation period i.e. from
15 January 1999 to the end of the IP.
By way of general indication, and as the EC calculated the dumping margin in the exporting
country’s currency, Brazil notes that the average exchange rate established on the basis of EC data for
the entire IP, including two and half weeks post-devaluation in the last quarter of the IP, was 1.5,
whilst it was 1.3 for 1998, which covered the first three quarters of the IP (see monthly data BFS
173).  However, the average exchange rate for the last three months of the IP was 2.1.
17  Official
exchange rate data communicated by the Brazilian Central Bank shows a rate of 1.9 by the end of
1999, 1.8 by the end of 2000 and 2.1 by the end of 2001.  The devaluation of 41.99 per cent has more
than entirely absorbed the dumping margin of 34.8 per cent that the EC established for Brazil.
25. When did Tupy first raise the issue of the devaluation in the course of the investigation -- was
it before the verification in September 1999?  Cite the relevant portions of the record of the
investigation and your submission.
The massive devaluation of the Brazilian currency was at the forefront of the anti-dumping
investigation from the very beginning. Indeed, it was the EC who first dealt with the issue.  Thesignificance of the Brazilian devaluation was clearly reflected in the detailed exchange rates listing
which the EC had sent to Tupy together with its Questionnaire at the time of initiation on
29 May 1999 (BRL-3). Tupy’s reply to the Questionnaire, which was delivered to the EC on
8 July 1999 (BRL-4), provided information based on daily exchange rates (which differed from the
EC’s monthly averages) to mirror the concerns relating to the devaluation.  The differences betweenthe EC and Tupy’s respective positions were finally settled during the verification visit.  This has been
confirmed by the EC, for example in its Disclosure Preceding the Definitive Regulation (BRL-16).
                                                     
17 See Annex II of the Questionnaire (BRL-3).WT/DS219/R
Page E-11
ARTICLES 11.1 AND 11.2 AD
To the EC:
26. Does the European Communities believ e that the price comparison at the end of the IP
revealed no, or declining, differences between export price and normal value at the end of the
period?  Explain the significance this has for th e establishment of the margin of dumping in the
IP as a whole.  Provide the legal basis for your response, citing any relevant material.
To Brazil:
27. Is Brazil arguing that the circumstances it  describes in its first submission qualify as
circumstances where a self-initiated review by  the European Communities was "warranted"
within the meaning of Article 11.2 AD?  For what reason(s)?
Yes.  Brazil considers that the data, which the EC collected for the Brazilian exporter in
relation to more than two months following the massive devaluation of the Brazilian currency, was of
a nature which “warranted” such a self-initiated review.
The rationale of the Appellate Body ruling in US-Carbon Steel18 which concerned similar
circumstances to those discussed here but with regard to a review of countervailing duties under the
SCM Agreement (Articles 21.1 and 21.2), can be transposed, mutatis mutandis , to this case.  The
requirements for a review of countervailing dutie s are defined in these SCM provisions in similar
terms to those which are stipulated in the parallel provisions in the anti-dumping context
(Articles 11.1 and 11.2 of the AD Agreement).
According to the Appellate Body (in para 53 ), “[p]ursuant to [Article 21.1 SCM which
parallels Article 11.1 of the AD Agreement], the authorities of a Member applying a … duty must,
where warranted, ‘review the need for the continued imposition of the duty’.  In carrying out such a
review the authorities must ‘examine whether the continued imposition of the duty is necessary to
offset subsidization’ and/or ‘whether the injury would be likely to continue or recur if the duty were
removed or varied’.  Article 21.2 provides a revi ew mechanism to ensure that Members comply with
the rule set out in Article 21.1.”
As held by the Appellate Body (in para 61), “[o]n the basis of its assessment of the
information presented to it by interested parties, as well as of other evidence before it …, the
investigating authority must determine whether there is continuing need for the application ofcountervailing duties.  The investigating authority is not free to ignore such information.  If it were
free to ignore this information, the review mechanism under Article 21.2 would have no purpose.”  In
other words, a review is “warranted” where the in formation before the investigating authority would
suggest, as in this case, that the continuing need for the application of the duty should be re-assessed.
This “triggering” information should be of a “positive” nature, of the kind so as to
“substant[iate] the need for a review” (in the sense of Article 11.2 AD) and it should constitute more
than a “mere assertion” (in the sense of Article 5.2 AD) so that it would have a similar persuasive
value to that required from an “application” under Article 5.2.  The information which the EC had
before it, given its findings for the two and a half months after the devaluation, was certainly of such anature.
                                                     
18 US-Carbon Steel Products Originating in the UK, Appellate Body Report,  WT/DS138/AB/R of
10 May 2000, ‘US – Carbon Steel AB Report.’WT/DS219/R
Page E-12
In Brazil’s view the EC “was not free to ignore such information” and has therefore been put
under a clear obligation to self-initiate a review.  In other words, that information certainly
“warranted” a self-initiated review.  Moreover, particularly in the circumstances of this case, there
was no need for the Brazilian exporter to provide any additional information to the EC to trigger that
review.
28. Does Brazil argue that the continued effects of the devaluation upon the European
Communities calculations establishing the margin of dumping would be similar or identical
after the end of the IP?  On what basis?
Brazil confirms that in it’s view, the continued effects of the devaluation upon the European
Community’s calculations establishing the margin of  dumping would have been similar after the end
of the IP, at least substantially different from the IP.  As stated and elaborated in Brazil’s reply to the
Panel’s question 24, and in view of the data collected and verified by the EC for the last 2.5 months of
the IP, the effect of the devaluation which more th an absorbed the dumping margin which the EC had
established for Brazil, continued in practice after the imposition of the definitive duties.
29. Even if the price comparison at the end of the IP revealed no, or declining, differences
between export price and normal value at the end of the period, what significance does this have
for the establishment of the margin of dumping in the IP as a whole?  Provide the legal basis for
your response, citing any relevant GATT/WTO panel or Appellate Body reports.  How does
your view reconcile, for example, with the requirement in Article 2.4.2 AD to perform a
weighted average to weighted average comparison?
As stated in Brazil’s First Submission (para 158) and also further elaborated in Brazil’s
Second Submission (para 26 et seq. ), Brazil does not deny that the general rule under Article VI of
GATT the 1994 and of the AD Agreement is that the investigating authority is acting in conformitywith the methodologies set out in the AD Agreemen t.  Nonetheless, as further elaborated under
Issue 3 in Brazil’s Second Submission, the imposit ion of anti-dumping measures must not be the
result of a mechanical action as these may only be imposed in order to counteract and offset dumping
in the market.
30. Comment on the EC assertion that there wa s no certainty whether and how Tupy would
reflect the devaluation in its export price.
Brazil does not believe that that statement is well founded.  As further elaborated in Brazil’s
Second Submission (para 34), Brazil would have in fact expected the EC to make an opposite
statement.  The EC has had before it concrete data provided by the Brazilian exporter in relation to the
two and a half months following the devaluation.  The EC verified that information, which clearlydemonstrates that the Brazilian exporter has not changed its pricing policies as a result of the
devaluation.
31. Can Brazil clarify its statement that Tupy requested a “review” after the devaluation
and did not get any response from the Commission?  Was this request made after  the imposition
of the definitive anti-dumping duties?  If the request was made before  imposition of the
definitive anti-dumping duties, does Brazil believe that this would constitute a “review” under
Article 11 of the AD Agreement ?
Tupy has never requested a review.  Brazil asked the EC not to impose anti-dumping duties
with regard to Brazil as there had been no dumping following the Brazilian currency’s devaluation.
As further elaborated in its Second Submission (para 36 et seq. ), Tupy was not in a position to request
a review at that stage as the EC’s anti-dumping rules do not give exporters a legal right to request
such a review.  Brazil recalls that that right is available to exporters in the EC only where “aWT/DS219/R
Page E-13
reasonable period of time of at least one year has elapsed since the imposition of the definitive
measure…” (see Article 11.3 of the Basic Regulation, BRL-24).
32. Has Tupy requested a “refund” of the anti-dumping duties following their imposition in
light of the alleged impact of the devaluation?  If not, why not?
No.  Tupy has not imported the product concerned into the EC and may therefore not request
a refund of anti-dumping duties.  Tupy is not aware whether any of its EC importers requested a
refund.
To both parties:
33. What is the meaning of the phrase " where warranted " in Article 11.2 AD?  Provide the
legal basis for your answer.  Assuming arguendo  that initiation of a review is “warranted”, is
there a legal obligation  to self-initiate a review?
In Brazil’s view, the phrase “where warranted” in Article 11.2 of the AD Agreement refers to
a situation where the investigating authority has in its possession sufficient information to justify and
to give it authority19 to order the initiation of a review “of the need for the continued imposition of the
duty…”  Under Article 11.2 such a review is a matter of obligation on the Member concerned
(according to Article 11.2, “[t]he authorities shall review…”; emphasis added) where such
information is presented to the Member in support of a request for a review or is otherwise availableto it.  In the present case, such information was made available to the EC through the data which Tupy
provided to the EC in the course of the investigati on and in view of the EC’s verification of that data.
34. Is there any relevant material the Panel might be guided by in its examination of the EC
allegations under Article 11.2 AD?
Brazil believes that the EC has such relevant material in its possession.  This will be the result
of its examination of the information that Tupy provided in the course of the investigation, possibly
also including the data to which the Panel refers in Question 21 (“ECSALUR file on the CD-ROM”).
35. What, if any, is the relevance and role in these proceedings of the EC case-law and
practice concerning "changed circumstances" cited by Brazil on pp. 38 et seq .  of its first
written submission?
Brazil believes that the EC case-law and practice concerning “changed circumstances” cited
by Brazil in its First Submission (BFS 166-169) is of particular relevance and importance to these
proceedings as these demonstrate what the EC can do in such circumstances but chose not do in thiscase.
                                                     
19 The Concise Oxford Dictionary defines “warrant” as “justification or authority”, “justify or
necessitate.”WT/DS219/R
Page E-14
ISSUES 4 AND 5: "IMPROPER NORMAL VAL UE" - "INAPPROPRIATE PRODUCT TYPES";
"INAPPROPRIATE PRODUCT CODES"
To the EC:
36. Could the European Communities thorough ly outline the precise steps it took in
calculating normal value, including constructed no rmal value, in this investigation, citing the
relevant parts of the record of the investig ation.  In responding, could the European
Communities clarify what is the "representativ eness" test referred to in para. 27 of the
Provisional Regulation?  Does it correspond to the test foreseen in Article 2.2 and footnote 2 ofthe AD Agreement ?  If not, where is the basis in the AD Agreement ?
37. Did the European Communities include data from sales not permitting a proper
comparison to calculate SG&A costs?  To what extent, if at all, would this be a relevant
consideration under Articles 2.2 and 2.2.2 AD?
38. Were there any sales to related parties?  If so, how were they treated in the application
of the methodology under Article 2.2.2 chapeau?
39. Is the Panel correct in understanding that the European Communities constructed the
normal value of products with Tupy internal product code "18" by using the methodology set
out in the chapeau of Article 2.2.2 (i.e.  actual data  from sales in the ordinary course of trade for
SG&A and profit of types within internal product codes 12, 68 and 69)?  If so, how does this
relate to the following European Communities statement: "the normal value was constructed
based on the cost of manufacture of the exported types so that also for those types no further
physical differences existed and therefore no fu rther adjustment was warranted." (Definitive
Regulation, para. 43)
40. Comment on Brazil’s allegation of the inconsistency between your statement in the
Disclosure Preceding the Provisional Regulation:
"- On the domestic market, products starting with a 12, 68, 69 and 79 code were sold.  Products
starting with 68 and 69 had a different thread (NPT instead of BSP), while 79 products were not
threaded.  Products with code 68 were also made for higher pressure than other products.  The costs of
manufacturing of these products appeared to be different, and most of these products had also market
values which were very different.
- On the EC market, Tupy sold products starting with a 12 code (own brand) and products
starting with an 18 code (Nefit brand).  Again, these products appeared to have sometimes very
different costs of manufacturing .” (footnotes omitted, emphasis added)
and the position taken in the investigation not to grant adjustments as envisaged by Article 2.4
41. Comment on Brazil's statements on page 60 of its first written submission:
“Consequently, the words “throughout this Agreement” in Article 2.6 when read together
with the wording of Article 2.2.2 obliges the invest igating authorities to use the actual amounts for
SG&A and for profits pertaining to production and sales in the ordinary course of trade of products
which are identical, i.e.  alike in all respects, to the product under consideration.  Only in the absence
of such identical products can the actual amounts for SG&A and for profits pertaining to production
and sales in the ordinary course of trade of products, which are, although not alike in all respects,
having characteristics closely resembling those of the product under consideration.  However, in thelatter case the investigative authority is obliged to make due allowances in each case, on its merits, for
differences in physical characteristics affecting price comparability…..”WT/DS219/R
Page E-15
To Brazil:
42. Comment on the statement by the European Communities at para.  129 of its first
written submission that the onus for proposing adjustments falls on the exporter and that since
Tupy did not, in the investigation, request an adjustments  under Article 2.4 concerning the
exclusion of unrepresentative sales in the calculat ion of the profit margin, the claim is therefore
inadmissible.
Brazil disagrees with the EC’s interpretation. Article VI:1 of the GATT 1994 and Article 2.4
of the AD Agreement oblige an investigating authority  to ensure that a fair comparison between the
normal value and the export price of the product concerned is undertaken.  This obligation is borneout by the unqualified word ‘shall’ in Article VI:1 of the GATT 1994 and Article 2.4 of the AD
Agreement. Indeed, the Appellate Body emphasised in United States – Hot Rolled Steel  that “under
Article 2.4, the obligation to ensure a "fair comparis on" lies on the investigating authorities, and not
the exporters”20 (emphasis added).  Consequently, the question, whether an interested party has
identified a difference affecting price comparabilit y or whether an investigating authority has made it,
is of no importance as the investigating authority ha s in any case a positive obligation to ensure that
the price comparison fulfils the requirement of fairness.  Brazil submits that the EC’s claim of
inadmissibility should fail.
43. Could Brazil comment on the European Communities statement in para. 141 of its first
written submission that Brazil provides no support for its contention that the products in
question are not "like", and is indeed prevented from submitting such evidence by Article
17.5(ii)?  Did Tupy challenge the findings in the Provisional Regulation, paras.  14-16?  Cite to
the relevant parts of the record of the investigation.
Brazil submits that Articles 2.6 and 2.2.2 must be given mutually consistent interpretation,
particularly in the light of the opening clause of Article 2.6 (“[t]hroughout this Agreement…”).  Brazil
submits that the exact wording of Article 2.2.2 read together with Article 2.6 makes it clear that where
an identical product exists, data relating to its SG&A costs and profits shall be used.  Only ‘in the
absence of such a product’ an interpretation that is supported by the word ‘ or’’ in Article 2.6, may
data relating to SG&A costs and profits of a product with closely resembling characteristics be used.
The above interpretation applies also in cases where the investigating authority subdivides  the product
concerned into product types, as the EC made in this case.  Accordingly Article 2.2.2 oblige the
investigating authority to use the actual data  for SG&A and for profits pertaining to identical product
types .  Only in the absence of such identical produc t types, the investigating authority has a right to
use the actual data pertaining to non-identical product types with closely resembling characteristics .
Given that the product types under internal product code ‘12’ were not identical to those
under ‘68’ and ‘69’, Brazil notes that the Brazilian exporter had requested an allowance for the
differences in costs and market values.21  Moreover, due to the significant differences in physical
characteristics and in market values between sales of ‘12’, on the one hand, and sales of ‘68’ and ‘69’
on the other, the Brazilian exporter has also requested that the latter codes should be excluded fromthe data used in the construction. 
22 Finally, Brazil recalls that the Brazilian exporter stated that “such
product types [‘68’ and ‘69’] may constitute”, and not that they constitute, the “like product”.23
                                                     
20 See United States– Anti-dumping measures on certain hot-rolled steel products from Japan ,
WT/DS184/AB/R of 24 July 2001, ‘United States – Hot-Rolled Steel AB Report’, para 178.
21 See Tupy’s Questionnaire Response (BRL-4); see also Tupy’s Reply to the Deficiency Letter (BRL-
7). Brazil recalls that the Brazilian exporter sold product types starting with internal product codes ‘12’, ‘68’ and
‘69’ on the domestic market and exported to the EC products with codes ‘12’ and ‘18’.
22 See the Fourth Submission of Tupy (BRL-13), pages 34-35.
23 See the Fifth Submission of Tupy (BRL-17), page 4.WT/DS219/R
Page E-16
44. Could Brazil comment on the EC statement in  para.  141 of its first written submission
that "Article 2.4 presupposes that two like products may not be sufficiently similar to be
comparable"? Refer to any relevant material in your response.
Brazil disagrees.  The term “like product” in Article 2.6, a concept that applies “[t]hroughout
this Agreement”, refers to either identical products or, in the absence of such a product, another
product which has characteristics closely resembling those of the product under consideration.  The
EC seems to indicate that two different products, which are not even “alike” under Article 2.6, may be
used for the purpose of a dumping determinati on.  Brazil, however, submits that the issue of
“comparability” under Article 2.4 does not arise in this kind of situation, i.e. if two products are
neither identical nor have characteristics closely resembling and, thus, as there are two distinct “like”products, there should be two different proceedings under the AD Agreement.
45. Does Brazil believe that the European Communities took cost-based physical differences
between the product types in issue into account in constructing normal value?  If so, what would
the legal basis be for the European Communities to grant additional adjustments for suchphysical differences under Article 2.4?
Regarding the first sentence of the Panel’s question, Brazil does not totally believe so.
Although Brazil believes that the constructed normal values for certain product types were based on
the cost of production per each product type, Braz il submits that the amounts for SG&A costs and for
profits used by the EC in the construction relate  not only to the non-identical product types (i.e. the
product types starting with internal codes 68 and 69) but also to the product types, which domestic
sales were unrepresentative ( i.e. below 5 per cent of the export sales of the same product type).
Consequently, Brazil’s claims as developed below (see answers to the questions 46 to 50 and 52) are
not related to adjustments for physical differences under Article 2.4 but to the amounts for SG&A
costs and for profits added to the cost of manufacturing under Article 2.2.2.
Regarding the second sentence of the Panel’s question, please see answer to question 42.
46. Could Brazil comment on the EC statement in  para.  144 of its first written submission
that Brazil has proposed no basis for adjustment  other than one that contradicts Article 2.2.2
AD by removing data that have been properly included?
Brazil disagrees with the EC’s basic logic. Brazil submits that the only domestically sold
product types that the EC should refer to when  identifying the amounts for SG&A costs and for
profits under Article 2.2.2 for the exported product types ‘12’ and ‘18’ are 566 product types starting
with internal product codes ‘12’, which domestic sales were both representative and profitable.24
Consequently, Brazil disagrees with the EC that the removal of domestic sales of unrepresentative
product types from the data used in the construction contradicts Article 2.2.2.
To both parties:
47. What is the relationship between Article 2.2 and the chapeau of Article 2.2.2 AD?
                                                     
24 For clarification, Brazil recalls that the Brazilia n exporter sold product types starting with internal
product codes ‘12’, ‘68’ and ‘69’ on the domestic market and exported to the EC products with codes ‘12’ and
‘18’. The Brazilian exporter had repeatedly claimed the exclusion of data related to product unrepresentativeproduct codes from the construction: see the Fourth Submission of Tupy (BRL-13), pages 34-35; in particularsee the Post Hearing Document (BRL-15); and the Fifth Submission of Tupy (BRL-17) page 4.WT/DS219/R
Page E-17
Article 2.2 permits the calculation of normal values on the basis of, inter alia , constructed
normal values if the domestic selling prices have been found to be unreliable ( i.e. “do not permit a
proper comparison”).  Brazil submits that Article 2.2 is an overarching provision  informing the more
detailed obligations in succeeding paragraphs concerning construction.  Therefore, the finding of
‘unreliability’ under Article 2.2 restricts the investigating authority’s subsequent identification of theamounts for SG&A and for profit to product types for which domestic sales do permit a proper
comparison.  Indeed, Brazil recalls the Panel’s findings in EC-Cotton Yarn  t h a t  “ t h e r e  m u s t  b e
something intrinsic to the nature of the sales th emselves that dictates they cannot permit a proper
comparison”
25 and submits that low volume affects  the domestic sales themselves in such a way that
they would not permit a proper comparison in succeeding paragraphs concerning constructed normal
values.
Brazil notes that the AD Agreement does not define the term “in the ordinary course of
trade”26.  Consequently the chapeau of Article 2.2.2 pr oviding that the amounts for SG&A costs and
for profits are to be determined on the basis of “actual data pertaining to production and sales in the
ordinary course of trade of the like product by the exporter or producer under investigation” is open to
interpretation.  Brazil also notes that Article 2.2.2 makes no explicit reference to any notion of‘representativity’ within the meaning of Article 2.2 and footnote 2 thereto.  However, Brazil submits
that in case the investigating authority excludes the data under Article 2.2, it follows as a matter of
construction that the same data should be excluded under Article 2.2.2.
Indeed, the intention of the drafters of the AD Agreement cannot have been to allow a
situation where the investigating authority decides to construct the normal values in respect of sales of
product types, which do no permit a proper comparison, and to use data, which do not permit a proper
comparison, to construct the normal values for sales of the same product types.  Therefore, to avoid
unnecessary, inconsistent and incoherent situation wh ereby the data relating to sales not permitting a
proper comparison are used to construct a normal value permitting a proper comparison, Article 2.2.2(when read together with Article 2.2) requires th at the amounts for SG&A and for profits should be
based on the data of representative  and profitable  domestic sales.  Brazil observes that also the EC
accepts this interpretation.
27
The above interpretation is also supported by the rationale underlying “construction”.  The
constructed normal value is to serve, as a substitute  for the use of domestic prices, in other words,
what it would be if the product under investigation or a type of such a product  had been sold  in the
domestic market in the ordinary course of trade.  Given that the profit margins associated with low
volume domestic sales for which product types are normally produced on the basis of atypical
specifications are unrepresentatively high, the inclusi on of these margins in the data to be used in the
construction would be against the idea of construction or “substitution”.
Therefore, Brazil submits that the EC violated Article 2.2.2 by including to the amounts for
SG&A and for profits used in the determination of constructed normal values actual data pertaining to
production and sales of product types, for which domestic sales were not representative within the
meaning of Article 2.2 and footnote 2 thereto.  Indeed, the only domestically sold product types that
                                                     
25 ‘EC – Cotton Yarn’ , para 478.
26 See ‘US-Hot-Rolled Steel AB Report’ , para 139 where the Appellate Body explicitly stated that the
AD Agreement “does not define the term “in the ordinary course of trade””.
27 See the EC’s statement in ‘ EC – Bed Linen ’ that “India assumes … that the EC authorities, when
requiring that the data used in applying Article 2.2.2(ii)  should be subject to the "ordinary course of trade"
principle, is relying on the chapeau to Article 2.2.2. It is true that the chapeau reflects this principle, but thebasic principle is expressed in Article 2.2. In fact, it is a two-part principle: data associated with sales that are
unprofitable , or are unrepresentative , are not reliable. For reasons of consistency, this principle applies to all
the provisions coming within Article 2.2, including Article 2.2.2(ii)”; see the First Submission and Request forPreliminary Rulings of The European Communities (27 March 2000), para 152; see also the Panel report in ‘ EC
– Bed Linen ’, para 6.79.WT/DS219/R
Page E-18
the EC should refer to when properly constructing normal values under Article 2.2.2 for the exported
product types ‘12’ and ‘18’, are 566 product types starting with internal product codes ‘12’, for which
domestic sales were both representative and profitable.
48. Is the meaning of "proper comparison" in Article 2.2 AD the same as "fair comparison"
in Article 2.4 AD?  Provide the legal basis and substantiation for your response, with reference
to all relevant provisions in the AD (and, if necessary, other) Agreement.
No, they are two different c oncepts. While “proper” relates to the “quality” of the data to be
gathered in order to compose the set of comparable elements, “fair” regards the necessary equity on
the part of the investigating authorities to comp are the elements once they are properly gathered.
49. What is the nature of the reference in Article 2.2 AD concerning "sales [that] do not
permit a proper comparison"?  Is it merely a threshold to guide the decision whether or not to
proceed to constructed normal value, or is it also a consideration to be taken into account in
constructing normal value?  What is the basi s for your response, using the customary rules of
interpretation of public international law?
Looking first at the text, Brazil notes that Article 2.2 allows the investigating authorities to
use either constructed normal value or third country sales as the basis of the normal value where
normal value cannot be established on the basis of domestic selling prices.  The latter situation would
arise where the available domestic sales had taken place in the ordinary course of trade but do notpermit a proper comparison. In view of the Panel’s findings in EC-Cotton Yarn  that “there must be
something intrinsic to the nature of the sales th emselves that dictates they cannot permit a proper
comparison”
28, Brazil submits that low volume affects  the domestic sales themselves in such a way
that they would not permit a proper comparison.  Consequently, Brazil submits that Article 2.2 is not
just a threshold  to guide the decision whether or not to proceed to construct normal values but an
overarching provision  informing the more detailed obligations in succeeding paragraphs concerning
constructed normal values.  Indeed, Article 2.2 obliges the investigating authority not to use data
denoting to unrepresentative domestic sales under Article 2.2.2.
50. Would the removal of sales of such a low vo lume as to not permit a proper comparison
within the meaning of Article 2.2 AD contradict Article 2.2.2 AD by removing a category that
should properly have been included in the calculation?
Yes.  As stated in answer 47 above, Brazil submits that Article 2.2.2 (in light of Article 2.2)
requires the investigating authority to base the amounts for SG&A and for profits in the construction
of normal values on the data of representative  and profitable  domestic sales of the identical product
types, if available.  Indeed, Brazil submits that Article 2.2 precludes  the use under Article 2.2.2 of
data denoting to the domestic sales not permitting a proper comparison.  Consequently, if the
investigating authority excludes the data under Article 2.2, it follows as a matter of construction that
the same data should be excluded under Article 2.2.2.
51. Does the definition of "like product" appl y among types falling within the scope of the
like product? Provide the basis for your reasoning.
Yes.  Looking first at the text, Brazil notes that “the like product” in Article 2.6, a concept
which applies “[t]hroughout this Agreement”, refers to “a product which is identical, …or in the
absence of such a product, another product which,… has characteristics closely resembling those of
the product under consideration” (emphasis added).  Brazil disagrees with the EC, which suggests that
two different products, which are neither identical nor have even characteristics closely resembling,
                                                     
28 See ‘ EC – Cotton Yarn’, para 478.WT/DS219/R
Page E-19
may still be sufficiently similar to be comparable for the purpose of a dumping determination.  Brazil
submits that in that case there should also be two different proceedings under the AD Agreement.
Conversely, in cases where the investigating authority sub-divides the like product into
product types for dumping determination purposes, a practice which is not contested by Brazil, theAD Agreement provides only one concept for “the like product”.  As stated in answer to question 43,
the wording in Article 2.2.2, when read together with the wording in Article 2.6, implies that a
hierarchy exists between the type of data that can be used to construct normal values for different
product types.  Accordingly Articles 2.2.2 and 2.6 oblig e the investigating authority to use the actual
data for SG&A and for profits pertaining to identical product types .  Only in the absence of such
identical product types, the investigating authority has a right to use the actual data pertaining to non-
identical product types with closely resembling characteristics .
52. How do the parties respond to the US statement in its written third party submission
that an improper calculation of constructed normal value cannot constitute a breach of Article
2.4 AD, and that a putative breach of Article 2.4 AD cannot be used to bolster a claim under
Articles 2.2 and 2.2.2 AD?
Brazil does not agree with the US statement.  As stated in answer to question 47 above, Brazil
submits that the EC violated Article 2.2.2 by including to the amounts for SG&A and for profits used
in the determination of constructed normal values actual data pertaining to production and sales of
product types, which domestic sales were not representative within the meaning of Article 2.2 and
footnote 2 thereto.  However, in case the amounts for SG&A costs and profits under Article 2.2.2
pertain to production and sales of non-representative product types then Brazil cannot see how the
investigating authority could make a fair comparison using data considered not to permit a proper
comparison.
53. Comment on the statement by the European Communities at para.  127 of its first
written submission that "…both SG&A and pr ofit were based on the 1260 types of the like
product sold on the domestic market".
This statement confirms that the EC violated Article 2.2.2 as the EC recognises that, in the
construction of normal values, it used profit margins and SG&A costs associated with not only
product types, which were not identical, but also product types found by the EC’s investigatingauthorities not to permit a proper comparison.
ISSUES 6 & 10:  "NO PROPER CONSIDERAT ION OF TAX NEUTRALISATION"; "NO PROPER
BASIS TO ASSESS PIS/COFINS INDIRECT TAXES"
To the EC:
54. Does the European Communities believe that the IPI Premium rates applicable to
exported products were established by Resolution no.  2 of 17 January 1979 of the Exportation
Incentive Commission (‘Resolution no.  2’)  attached to the Ministry of the Inland Revenue and
that Resolution no. 2 established an IPI Premiu m Credit of 20 per cent for fittings under which
the definition of the like product in this investigation falls? (Brazil first written submission, p.
78).
[To both parties]:
Was this legislation on the record of the underlying AD investigation?WT/DS219/R
Page E-20
Resolution No 2 of 17 January 1979 was not part of the record.  However, the Brazilian law-
edict No 491 dated 5 March 1969, translated into English, was provided to the EC in Tupy’s
Questionnaire Response.29
Brazil recalls the EC’s statement that it would “further investigate this issue in order to
establish the exact amount of indirect taxes which was actually refunded on export sales made to the
Community and at the same time borne by the like product concerned when consumed in Brazil".30
In view of the above, the Brazilian exporter presumed that the EC would “further investigate”
the issue of internal taxes and presumed that it would have an opportunity to provide moreinformation regarding the Brazilian legislation, if needed. Brazil recalls that the definition given in the
Concise Oxford Dictionary for “investigate” is “to make a careful study of (a thing) in order todiscover the facts about it”.  However, in the Disclosure Preceding the Definitive Regulation, without
making any further investigation, the EC confirmed the rejection of the IPI Premium Credit.31
To the EC :
55. With reference to the record of the in vestigation, can the European Communities
substantiate its statement in para.  153 of its first written submission that the normal value
calculated was net of the IPI Premium Cred it and thus no adjustment was necessary?
56. How does the European Communities reconcile the statements in paras. 153-156 of the
EC's first written submission that the normal  value calculated was net of the IPI Premium
Credit and thus no adjustment was necessary, but  that the EC investigating authorities denied
an allowance in respect of the IPI Premium Cred it as Tupy did not demonstrate that this credit
"compensated" for internal taxes "borne by the like product "when destined for consumption"
on the Brazilian market within the meaning of Article VI:4 of the GATT 1994.
57. On what basis does the European Communities justify the use of data relating to the 20
"most exported types" of the product con cerned in calculating the adjustment for
PIS/COFINS?
58. Can the EC direct the Panel to where in its first written submission it describes the
methodology used to calculate the PIS/COFINS adjustment?  Is this methodology outlined in
paras.  237-239 of its first submission?  Is th e relevant Deficiency Letter sent to Tupy during
investigation in Exhibits BRL-6 and 7?
To Brazil :
59. Why does Brazil / Tupy believe that the method used by the European Communities
(the use of data relating to the 20 "most expo rted types" of the product concerned) was
unreasonable or inconsistent with the AD Agreement ? Is it because it was only pertaining to
approximately 33 per cent of total quantity exported, or to the 20 most exported types, or…?
Brazil submits that the EC’s approach was inconsistent with the AD Agreement. Brazil recalls
that the Brazilian exporter had provided in the Questionnaire Response listings of all sales
transactions of the product concerned on the domestic market and to the EC in the IP.  Thus, theinformation needed for a full and complete analysis  was available to the EC but the examination was
                                                     
29 See Tupy’s Questionnaire Response (BRL-4), Section G 2.2.
30 Disclosure Preceding the Provisional Regulatio n (BRL-11), pages 7-8; see also Provisional
Regulation (BRL-12), recital 47.
31 Disclosure Preceding the Definitive Regulation ( BRL-16), page 7, the Definitive Regulation (BRL-
19), recital 46 and the Transparency Letter (BRL-18), pages 4-5.WT/DS219/R
Page E-21
limited to the 20 “most exported types”.  Brazil subm its that this limitation is inconsistent with the
AD Agreement and effectively amounts to a punitive  methodology.
Brazil claims that the EC’s approach lacks any legal support in the AD Agreement.  Firstly, it
is within the rights of an investigating authority under Article 6.8 to disregard the informationprovided by an interested party and base its calculations “on the facts available”.  However, Brazil
recalls the EC’s statement that “[a]lthough it could be argued that a claim of 20 per cent compared to
a justified claims of 0.88 per cent is misleading in the sense of Article 18(1) of the Basic Regulation
[Article 6.8 of the AD Agreement] and could ther efore be totally rejected, the Commission services
have decided, given the complexity of the issue, to grant nevertheless an adjustment corresponding to
0.88 per cent of the domestic sales prices”.
32 Consequently, Article 6.8 is for all intents and purposes
irrelevant as the EC itself expressly held that that the ‘facts available’ method has not been applied.
Secondly, Brazil notes that Article 6.10 contains specific provisions that explicitly address the
use of sampling techniques in anti-dumping investigat ions, that is, where the investigating authorities
have limited their investigation to a selective group of, inter alia , types of products.  Brazil, however,
submits that that the EC has never invoked Article 6.10 as a legal basis for its approach.
With regard to “allocation”, Brazil notes that the ordinary meaning of “allocation” is “to
allot”: inter alia  “to distribute officially”.  Given that all of the determinations should be based on the
relevant substantive provisions of the AD Agreement, the only Article, which might provide the legal
basis for the EC’s approach “to distribute officially”, is Article 2.2.1.1.  In general, Brazil notes thatthe issue of “allocation” only normally arises in a situation where it is not possible to identify “a
discrete item of cost with a cost centre and it is necessary to split a cost over several cost centres on
some agreed basis”.33  However, although Article 2.2.1.1 provides rules for the allocation of costs,
where the issue of allocation might be relevant, Brazil submits that Article 2.2.1.1 does not provide
any legal base for the allocation of prices.
Consequently, Brazil submits that the investigating authorities might deviate from the data
submitted on the basis of Articles 6.8 and/or 6.10.  However, given that the EC’s methodology is not
based on these provisions and, irrespective of the fact of whether the data used pertains “to
approximately 33 per cent of total quantity exported, or to the 20 most exported types”, the EC’s
approach of quantifying the price difference and of limiting the allowance of PIS/COFINS to 0.88 per
cent lacks any legal support in the AD Agreement.
60. Could Brazil comment on the EC statements in para.  148 (and 162) of its first writtensubmission that "…Article VI and the Agreement form an inseparable package of rights and
obligations" and consequently "the rules laid down in Article 2.4, notably those regarding
burden of proof also extend to Article VI?
Brazil agrees. Article VI:1 of the GATT 1994 and Article 2.4 of the AD Agreement oblige an
investigating authority to ensure that a fair comp arison between the normal value and the export price
of the product under investigation is undertaken.  This obligation is borne out by the unqualified word
‘shall’ in Article VI:1 of the GATT 1994 and Article 2.4 of the AD Agreement.
The chapeau of Article 2.4 states that “[a] fair comparison shall be made between the export
price and the normal value”.  Brazil recalls the Appellate Body’s dictum in United States – Hot Rolled
Steel  that “[w]e would … emphasize that, under Article 2.4, the obligation to ensure a "fair
comparison" lies on the investigating authorities , and not the exporters”.
34  Moreover, Brazil recalls
                                                     
32 See the Disclosure Preceding the Definitive Regulation (BRL-16), page 7
33 See Lucey, Costing, 5th edition, 1996, page 12.
34 ‘United States – Hot-Rolled Steel’ , para 178.WT/DS219/R
Page E-22
the Panel’s findings in ‘ Argentina – Tiles ’ that the obligation of fairness “means at a minimum that
the authority has to evaluate identified differences in … to see whether an adjustment is required to
maintain price comparability and to ensure a fair comparison between normal value and export price
under Article 2.4 of the AD Agreement”.35  Consequently, the question, whether an interested party
has identified a difference affecting price comparability or whether an investigating authority hasmade it, is of no importance as the investigating authority has in any case a positive obligation to
ensure that the price comparison fulfils the requirement of fairness.
Given that the first sentence of Article 2.4 creates a fair comparison obligation independent of
the other requirements in Article 2.4, Brazil submits that the last sentence of Article 2.4 (“burden of
proof”) must be read against the backdrop of this basic principle.  Moreover, the issue of whether
specific allowances should be made depends in any case very much on the factual circumstancessurrounding the case.  However, as the non-neutralised differences in taxation would automatically
create a distorted dumping margin, Brazil submits that it was fundamentally unfair to penalise the
Brazilian exporter for an event that is beyond its control, such as taxation.
61. Could Brazil comment on the statement in para. 175 of the EC first written submission
concerning the difference of 8,721,250 real being booked as a reserve for losses?
With regard to the issue of the difference in booking of the amounts of R$31.812.500 and
R$23.541.250, the EC claims that the difference of R$8.271.250 was “booked as a reserve for
losses”.
36  This is a mistake made by the EC. Brazil stated in its First Submission that the said
difference is to be understood “in the context of the delays incurred by the inspection of the fiscal
authorities and also with regard to expenses involved with those proceedings”.37  Indeed, the
difference of R$8.271.250, which was related to the expenses of tax proceedings, was transferred to
the reserve.  These expenses occurred but were not formally reported in 1998 and were expected to be
reported after the close of 1998.
62. Could Brazil comment on the EC statemen t in para. 232 of the EC first written
submission that "…Brazil is assuming that insofar as investigating authorities infringe Article 6
in regard to the process of comparing export pric es and normal value they will have failed to
make a proper comparison between the two and will therefore have acted inconsistently with
Article 2.4."  What is Brazil's view of the legal relationship between the cited provisions of
Article 6 and Article 2.4?
Brazil submits that an infringement of a procedural rule does not necessarily constitute an
infringement of a substantive rule, and vice versa .
63. Did Law 9363 and the formula referred to by Brazil at p. 83 of its first written
submission form part of the record of the underlying AD investigation?  Cite to the relevant
parts of the record.  Comment on the statement in para. 238 of the EC's first written submission
that they are therefore "inadmissible in accordance with Article 17.5(ii)" of the AD Agreement .
Cite any relevant material in your response.
Law 9363 and the said formula, which relate to the quantification of PIS/COFINS, were not
provided to the EC during the course of the invest igation.  However, the issue is without relevance as
the EC identified that the amount of PIS/COFINS  refunded to the Brazilian exporter was R$2,491,000
in the IP. 38
                                                     
35 See Argentina – Definitive Anti-Dumping Measures on Imports of Ceramic Floor Tiles from Italy ,
WT/DS189/R of 28 September 2001, ‘Argentina – Tiles’, para 6.113
36 ECFS, para 175.
37 BFS, para 316.
38 See the Disclosure Preceding the Provisional Regulation, Annex II, page 7 (BRL-11), the DisclosureWT/DS219/R
Page E-23
64. Could Brazil comment on the statement in EC' s first written submission para.  244:
"…there is no reason to believe that the result was less favourable than one resulting from the
use of complete data."
Brazil disagrees. Brazil submits that the EC’s approach effectively amounts to a punitive
methodology.  Brazil recalls that the EC’s findings that the Brazilian exporter “received on a total
amount of 159.335.000 real exported 2.491.000 real re turned PIS/COFINS taxes paid on materials
used for the production of exported goods”.39  The EC also found that this amount “represents
1.56 per cent of the value of total export sales”.  However, referring to the price difference between
the domestic and export prices, the EC decided that “the amount of the PIS/COFINS tax refund would
be limited to 0.88% of the domestic sales values”.40  The price difference was a result of the EC’s
calculation that “the export prices to the Community were on average 43.5 per cent lower than the
domestic sales prices (based on the 20 most exported types, see annex 7)”.41
By following the EC’s methodology exactly, Brazil calculated that the price difference
between the domestic prices and the export prices based on the 40 most exported types is not 43.5 per
cent, but 41.4 per cent.  Consequently, there are indications that the EC’s statement that "…there is no
reason to believe that the result was less favourable than one resulting from the use of complete data”
is factually incorrect.  Moreover, Brazil submits that all of the methods used by the investigating
authority in its determinations should be reasonable, logical and not be based on chance.  Indeed, the
method used by the EC was inherently unfair as it created fundamental uncertainty andunpredictability.
65. Could Brazil explain how and on what basis Tupy arrived at the estimated credit
PIS/COFINS of 5.35 per cent?
Brazil submits that the Brazilian exporter received under the Brazilian legislation a refund of
PIS/COFINS amounting to 5.37 per cent over input, i.e. raw materials, packaging and other process
materials, of the exported final product.  This refund is based on Law no. 9363, edited on
13 December 1996 which in the relevant part provides that “[t]he fiscal credit will be the result of the
application of the percentage of 5.37 per cent to the calculation basis defined in this article ”.  This
refund was also indicated by the Brazilian exporter in its Reply to the Deficiency Letter.42
To both parties :
66. What considerations could guide a panel's examination of type by type analysis under
the AD Agreement  and the EC's use of the 20 "most exported types" in calculating the
adjustment for the PIS/COFINS credit?  Refer also to any other relevant material.  Address thelegal relevance, if any, of footnote 1 to the SCM Agreement  to this issue.
In general Brazil is not opposed to a “type-by-type” analysis.  Indeed, depending very much
on the facts surrounding the case, such an analysis might be appropriate.  However, Brazil submits
that following the definition of the product, an investigating authority is bound to treat that productconsistently thereafter, in accordance with that definition.
                                                                                                                                                                    
Preceding the Definitive Regulation, Annex II, page 7 (BRL-16) and the Transparency Letter, pages 4-5 (BRL-
18).
39 See the Disclosure Preceding the Provisional Regulation (BRL-11), page 7.
40 See the Disclosure Preceding the Definitive Regulation (BRL-16), page 7.
41 See the Disclosure Preceding the Provisional Regulation (BRL-11), page 7.
42 BFS, para 328.WT/DS219/R
Page E-24
Secondly, as stated in answer to question 59 above, the EC’s method of using the 20 "most
exported types" in calculating the adjustment for th e PIS/COFINS credit lacks any legal basis in the
AD Agreement.  Brazil recalls that the Brazilian exporter had provided in the Questionnaire Response
listings of all sales transactions of the product conc erned on the domestic market and to the EC in the
IP.  The EC disregarded this data. Regarding the legal basis of this approach, Brazil submits thatArticle 6.8 is irrelevant as the EC itself expressly held that that the facts available have not being
applied.  Moreover, the EC has never invoked Article 6.10 as a legal basis for its approach.  Finally,
Brazil denies that Article 2.2.1.1 provides any legal base for the allocation of prices .
With regard to footnote 1 to Article 1 of th e SCM Agreement, Brazil agrees with the EC that
indirect taxes compensated “in excess of those, which have been accrued” may be a subsidy.
However, Brazil denies the relevance of footnote 1 to the SCM Agreement under the AD Agreement.Firstly, Article VI:4 of the GATT 1994 and Article 2.4 of the AD Agreement contain a requirement
that the comparison between the normal value and the export price is tax neutral.  Secondly, although
the SCM Agreement and the AD Agreement are part of an “inseparable package of rights and
obligations” of the WTO, the AD Agreement should not be reduced to the SCM Agreement in a way
that would deprive either Article VI or the AD Ag reement of their own meaning.  Thirdly, although
both of the aforementioned Agreements are part of the WTO package, the obligations under these
Agreements are distinct.  Had the Members intended to merge these Agreements, they would have
done so.  Consequently, the EC’s argumentum e silentio  – type  suggestion that if something is “only
briefly mentioned in the AD Agreement” but “receives considerable attention in the SCM
Agreement”43, obligations in the former should be interpreted or even replaced by the latter, is without
any legal basis and should be rejected.
67. In respect of Issues 6 & 10, to what extent does the EC method of calculating
adjustments relate to the concept of "sampling"?  Is this more an issue of "allocation"?  Please
explain, referring to any relevant provisions of the AD Agreement .
Brazil’s answer is the same as to question 59 above.  In essence, Brazil recalls that the EC had
at its disposal the full sales data provided by the Brazilian exporter.44  Neither did the EC invoke
Article 6.8 (the “best information available”) or Article 6.10 (“sampling”) as a legal basis for its
approach.  Furthermore, Article 2.2.1.1 does not provide any legal basis for the allocation of prices .
Consequently, Brazil submits that the EC’s approach to quantify the difference between the
domestic and the export prices on the basis of the 20 most exported types and to limit the allowance of
PIS/COFIN to 0.88 per cent, lacks any legal basis in the AD Agreement.
68. Comment on the statement in the disclosure preceeding the provisional regulation
(Annex II , pp(7&8) that " … only 23.541.250 Real was booked , because the credit will not be
used in the next few years due to the fact that  the company is still entitled to tax credits foe
losses carried forward."
As stated in answer to question 61, with regard to the issue of the difference in booking of the
amounts of R$ 31.812.500 Real and R$ 23.541.250, the EC claims that the difference of R$ 8.271.250
was “booked as a reserve for losses”.45  This is a mistake made by the EC. Brazil stated in its First
Submission that the said difference is to be understood “in the context of the delays incurred by the
inspection of the fiscal authorities and also with regard to expenses involved with those
                                                     
43 ECFS, para 164.
44 See the Disclosure Preceding the Provisional Regulation (BRL-11), page 7.
45 ECFS, para 175.WT/DS219/R
Page E-25
proceedings”.46  Indeed, the difference of R$ 8.271.250, which was related to the expenses of tax-
related proceedings,  was transferred to the reserve.  These expenses occurred but were not formally
reported in 1998 and were expected to be reported after the close of 1998.
ISSUE 7: "NO PROPER ADJUSTMENT FOR ADVERTISING AND SALES PROMOTING EXPENSES"
To the EC:
69. What supporting documentation underlies the statement:  "Similar commissions were
paid for similar purposes to Tupy Europe for export transactions with other clients" (in the
Disclosure Preceding Definitive Regulation)?
70. Did the advertising expenses at issue relate to export transactions of Tupy specifically
involving pipe fittings?
71. Does the European Communities agree that advertising expenses might form the basis
for an adjustment under Article 2.4 AD? Refer to any relevant material .
To Brazil:
72. Could Brazil comment on the EC statem ent that "Tupy Brazil paid 15 per cent
commission to Tupy Europe on invoice NR 11113 for sales to JANNONE Italy."  (Disclosure
Preceding Definitive Regulation) Does Brazil believe that certain commissions were paid to
Tupy Europe in relation to sales to unrelated clients and that these included costs relating to
advertizing and promotion of Tupy on the EC  market?  Were Tupy's export sales of pipe
fittings to the European Communities affected by these advertising expenses?  How, if at all, didTupy demonstrate this to the European Communities in the course of the investigation?
Given the information that the EC has now provided, that the domestic price level used to
determine normal values does not include advertising expenses, Brazil withdraws its claims regarding
advertisement and promotional expenses (Issue 7) under Article 2.4.
73. On pp. 88-89 of Brazil' s first written submission, Brazil state that "advertising and
sales promoting costs were reflected in the domest ic sales price while they were not in practice
reflected in the EC sales price….".  What is Br azil's basis for this statement, and how was this
brought to the attention of the European Communities in the course of the investigation?  Cite
to the relevant portions of the record and submit, if necessary, any additional relevant
information on the record of the investigat ion that is not currently before the Panel.
As stated in answer to question 72, Brazil with draws its claims regarding advertisement and
promotional expenses (Issue 7) under Article 2.4.
74. In Tupy's questionnaire response, does the phrase "calculation for adjustment in the
transaction by transaction was done by the ratio total expenses/total quantity" refer specifically
to expenses and quantity associated with sales of pipe fittings  or with all products produced by
the company?
As stated in answer to question 72, Brazil with draws its claims regarding advertisement and
promotional expenses (Issue 7) under Article 2.4.
75. Could Brazil comment on the EC statements in para. 190 of its first written submission
that:
                                                     
46 BFS, para 316.WT/DS219/R
Page E-26
"although Tupy acknowledged that part of the payments to Tupy Europe were for
promotional and advertizing activities, it implied that the EC investigators should
calculate the extent of those payments.  This is to reverse the responsibilities that are
established in the AD Agreement…"?
and (at para.  208 of the EC first written submission):  "the burden of proof in the
application of Article 2.4 lies on the party requesting the allowance".
As stated in answer to question 72, Brazil with draws its claims regarding advertisement and
promotional expenses (Issue 7) under Article 2.4.
76. Could Brazil comment on the EC argument in para.  193 of its first written submission
that even if Tupy had properly claimed and justified an allowance for advertising expenses,such an adjustment would not have been permitted under Article 2.4, as it would have
effectively duplicated the adjustment granted for level-of-trade differences?
As stated in answer to question 72, Brazil with draws its claims regarding advertisement and
promotional expenses (Issue 7) under Article 2.4.
ISSUE 8:  "NO PROPER ADJUSTMENT FOR PACKING COSTS"
To the EC :
77. In the Disclosure Preceding the Definitive Regulation, the European Communities stated
"…the estimation of labour costs was not supported by evidence, although evidence was asked
during the on-the-spot verification…"  Can the European Communities provide evidence of this
request for evidence during verification ?  Cite to the relevant portions of the record of the
investigation.
To Brazil :
78. How does Tupy determine and handle which products will go to domestic sales as
opposed to export sales before  a sale is made?  Is there any differentiation in handling or
treatment (i.e.  for a product that is sold on bo th the domestic and foreign markets (i.e.  "12"))?
Regarding the domestic market, the Brazilian exporter’s production is driven by production
schedules and is not based on orders.47  Packaging of domestically sold products takes place in two
stages. Firstly, the product concerned is placed loosely in open boxes and stored in a warehouse.
When an order is received, the amount of fittings (of each type) that are required are picked from the
warehouse and re-packaged for the customer (the second stage).  Given that export sales to the EC
were driven by individual orders and no stocks were kept48, the only packing stage that is relevant is
the second stage. Consequently, the costs (materials, labelling and labour etc.) of the first packing
stage do not apply to the exported product.
                                                     
47 See Tupy’s Questionnaire Response (BRL-4), Section D-E, subsection 5 where the Brazilian
exporter states that “[p]roduction starts pursuant to a normal production schedule of the company, based uponinformation received from the market”; see also Section G- 2, subsection 10.2 where it states that “[t]he sales for
the DM [domestic market] is based on available stock”.
48 See Tupy’s Questionnaire Response (BRL-4), Section D-1 where the Brazilian exporter states that
“4th step – when customer confirm the proforma we star t the production”; see also Section G-1, subsection 8.2
where it states that “[t]he sales for the EC countries is against order confirmation” and that “[t]his means there isno stock kept for the foreign orders registered for production” and Section D-1.5.WT/DS219/R
Page E-27
79. Does Brazil believe that what it describes as the "first packaging stage" on p. 89 of its
first written submission occurs prior to the sale of (or "receipt of an order for") the product?
Does Tupy only maintain an in-warehouse "i nventory" for domestic sales? If there is a
difference in this respect in the way that Tupy tr eats its domestic and foreign sales, why is the
same procedure not followed for foreign sales?
As stated in answer to question 78, packagin g of domestically sold products covered two
stages.  Firstly, the product concerned is placed loosely in open boxes and stored in a warehouse.
When an order is received, the amount of fittings (of each type) that are required are picked from the
warehouse and re-packaged for the customer (the second stage).
Given that export sales to the EC were driven by individual orders and no stocks were kept49,
the only packing stage that is relevant is the second stage.  Consequently, the costs (materials,
labelling and labour etc.) of the first packing stage do not apply to the exported product.
Consequently, the “first packaging stage” described on p. 89 of BFS occurs prior to the sale of the
product.  Given that domestic sales are not order driven and that production was driven by production
schedules, the Brazilian exporter kept stocks of the product concerned for its domestic sales. 50
With regard to the second part of the question, the answer is yes.  As domestic sales are not
order but schedules driven, the Brazilian exporter maintained stocks of the product concerned for its
domestic sales.
As for the third part of the question, exports sales to the EC were driven by individual orders
and no stocks were kept.  Thus, the only packaging stage which is relevant is the second and the costs,
like materials, labelling and labour of the first packaging stage do not concern the exported product.51
80. To what does the phrase "other important cost data" refer in the "Fifth Submission ofTupy"?
Brazil recalls that in the EC refused to allow for differences in packaging costs.  This is
because it claimed that the Brazilian exporter did not have evidence (or “any evidence”) to support its
assertions as to how packing costs were allocated
 ,52 i.e. the Brazilian exporter asserted that it used an
“allocation key” whereby 75 per cent of total packing costs were apportioned for domestic sales and
25 per cent for export sales.53
Importantly, companies like the Brazilian exporter rarely allocate their costs directly on the
basis of the market on which the products have been sold and thus indirect costs should be allocated
to the product concerned through the use of a proper allocation key.  Cost allocation, even in
accounting in general, is a convention.  The choice of an appropriate basis for making the allocation isa matter of judgement.  The basis that is chosen should ensure that the costs are apportioned fairly and
equitably. Indeed, given the ad hoc  nature of anti-dumping proceedings, in order to respond to the
anti-dumping questionnaire, the parties must apportion the costs reasonably, but this will inevitably be
done in ad hoc  –way.
                                                     
49 Ibid.
50 Supra , note 47.
51 Supra , note 48.
52 See the Disclosure Preceding the Provisional Regulation (BRL-11), Annex II, page 5; recital 44 of
the Provisional Regulation (BRL-12); the Disclosure Preceding the Definitive Regulation (BRL-11), Annex II,
page 6; and the Transparency Letter (BRL-18), page 5.
53 The Brazilian exporter explained its packing expenses on domestic sales in Tupy’s Questionnaire
Response (BRL-4), section G.1; the First Submission ( BRL-5), paragraph 1.3.4, page 5; the Fourth Submission
(BRL-13), page 38; and the Fifth Submission (BRL-17), page 6.WT/DS219/R
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In view of the above, it is important to note  that the supporting evidence that the Brazilian
exporter had of the use of the allocation key came from the visual inspection of the working activities
and practices in the packaging area at the company’s premises and the related company documents
showing the number of employees in the packaging department.  The visual inspection would have
made it clear to the EC officials that the packaging process for domestic sales was and is considerablydifferent and more involved than it is for export sales.  It would then have been able to judge for itself
whether the admittedly estimated 75/25 per cent allocation key had a proper factual basis.
81. Comment on the EC statement in para.  201 of  its first written submission that  "no data
were available either for packing materials, or  for working time, that distinguished between
foreign and domestic sales."  Do Tupy's accounting data permit the separate identification of
the cost of labour used for packing export (as opposed to domestic) sales?  If so, in what way,and how was this communicated to the European Communities?
Brazil submits that the EC imposed unrealistic pre-conditions for the granting of a relevant
allowance.  Brazil recalls that the Brazilian exporter had provided in the Questionnaire Response
explanations concerning its general accounting system and policy.
54  Moreover, regarding general
production processes and costs of production the Brazilian exporter explained that costs relating to
“direct manpower” were “apportioned due to the standard “time/man”, through cost centre, valued by
the timetable rate for each cost centre”.55  However, the Brazilian exporter’s accounting data did not
permit the separate identification of the cost of labour used for packing.  The Brazilian exporter did
not allocate its costs directly  on the basis of the market on which the product concerned was sold and
thus indirect costs were allocated for the product concerned by the use of a proper allocation key.  In
general and as stated in answer to question 80 above, the choice of an appropriate allocation basis is a
matter of judgement.  The allocation key should ensure that the costs are apportioned fairly and
equitably.  Indeed, given the ad hoc  nature of anti-dumping proceedings, in order to respond to the
anti-dumping questionnaire, the parties must apportion the costs reasonably but this will inevitably bedone in ad hoc  way.  The Brazilian exporter provided the EC with its general accounting principles
and also evidence in support of its allocation key in its Questionnaire Response.
82. Brazil also appears on pp. 90-91 of its first written submission to allege that, contrary to
Article 12.2 AD, the European Communities failed to make any reasoning clear concerning its
unwillingness to accept the 75 per cent/25 per cen t allocation for packing costs, but then does
not appear to refer to this allegation subsequently under "Issue 19".  Does Brazil maintain thisallegation?
Brazil withdraws this claim.
To both parties:
83. Would an adjustment under Article 2.4 AD be justified for general costs incurred by a
company in maintain ing inventory?  Does Article 2.4 AD relate  to indirect (i.e.  "pre-sale") and
direct (i.e.  "post-sale") packing expenses?  Why does Brazil/Tupy believe this method used by
the European Communities was unreasonable or inconsistent with Article 2.4 ?
Brazil believes that all of the costs relating to the commercialisation of the product concerned
are covered i.e.  Article 2.4 does not make a distinct ion between indirect and direct costs.  With regard
to the second part of the question, Brazil submits that, the ordinary meaning of the term “any other
differences which are also demonstrated to affect price comparability” in . Article 2.4 does not make a
distinction between indirect and direct costs.  Indeed, Article 2.4 implies that all differences, whether
direct or indirect, could affect the price comparability.
                                                     
54 See Tupy’s Questionnaire Response (BRL-4), Section F.1.
55 See Tupy’s Questionnaire Response (BRL-4), Section F.2, subsection 4a).WT/DS219/R
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The Brazilian exporter did not allocate its costs directly on the basis of the market on which
the products were sold and, thus, indirect costs were allocated for the product concerned by the use of
a proper allocation key.  The choice of an allocation basis is a matter of judgement.  The allocation
key should ensure that the costs are apportioned fairly and equitably.  Indeed, given the ad hoc  nature
of anti-dumping proceedings, in order to respond to the anti-dumping questionnaire, the parties must
apply apportion the costs reasonably but this will inevitably be done in ad hoc  –way.  Consequently,
Brazil submits that the EC’s threshold of “the direct allocation” does not comply with the obligation
under Article 2.4 “not to impose an unreasonable burden of proof” on the Brazilian exporter.Moreover, Brazil submits that the EC, by failing to indicate to the Brazilian exporter what information
was necessary to ensure a fair comparison, failed to ensure that the price comparability fulfilled the
requirement of fairness under Article 2.4.
84. Was the verification visit in this investigation "essentially documentary"?  Is an
"essentially documentary" verification consistent with the AD Agreement ?  Why or why not?
Brazil, submits that the verification visit in this investigation was exclusively “essentially
documentary”.  From a general point of view, Brazil submits that to respond to an anti-dumping
questionnaire is not within companies’ normal activity.  Given the ad hoc  nature of anti-dumping
proceedings, reasonable ad hoc  – costing must be applied in order to respond to the anti-dumping
questionnaire.  There are numerous instances where companies are not able to “demonstrate” or
provide “documentation”. It might be normal for a company producing many products not to allocatetheir full costs with regard to, for example, product  types.  Consequently, Brazil submits that the EC’s
refusal to accept an “allocation key” ensuring a fair and equitable apportionment of costs was
unreasonable.  Moreover, Brazil submits that the EC, by failing to indicate to the Brazilian exporter
what information was necessary to ensure a fair comparison, failed to ensure that the price
comparability fulfilled the requirement of fairness under Article 2.4.
ISSUE 9:  "NO PROPER CURRENCY CONVERSIONS"
To the EC :
85. Can the European Communities clarify the meaning of each of the headings of the
columns referred to by Brazil in its first written submission (p.96)?
86. Does converting the transport cost figure s from the European currency reported by
Tupy to Brazilian Reals on the same monthly rate basis as Tupy converted those amounts from
Reals to the European currency make any di fference to the result of the calculation?
87. Is it the usual practice of the EC to compare the prices used to compare the dumping
margin on the basis of the exporter’s currency?
88. Was the conversion of the amounts reported by Tupy from the European currency to
Reals done only in the case of transport costs?
To Brazil :
89. Why did Tupy convert the amounts reported for transport cost to European currencies?
The Brazilian exporter’s export sales of the product under investigation were made and
expressed in a currency as agreed between it and the customer concerned.  Therefore, normally all of
the sales to Italy were made in ITL, to Finland, Sweden, Belgium and the Netherlands in DEM, to the
United Kingdom in GPB, to Spain in PTA and to France in FRF.  Given that the agreed terms ofWT/DS219/R
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delivery with regard to the Brazilian exporter’s export sales were ‘CIF’56, all of the items (“cost,
insurance and freight”) between ex-factory  (the Brazilian exporter) and the agreed port in the EC were
indicated in the currency of the purchase agreement.  Consequently, Brazil disagrees with the EC that
the Brazilian exporter made unnecessary currency conversions.  Brazil also notes that the EC’s
deficiency letter contains no reference to the alleged unnecessary currency conversions.57
90. Does Brazil believe that the amounts resulting from the currency conversion performedby the EC are the same as those that were reported by Tupy before it performed its own
conversion?
Brazil’s claim with regard to the issue of currency conversions is related to the fact that
although the export turnover of each transaction is converted on the basis of the daily conversion
rates, as stated by the EC, the allowances reported by the Brazilian exporter in the Questionnaire
Response and deducted from export transaction values were not converted on the same basis.  Brazil
recalls the EC’s explicit statement that “daily rates were used for the definitive dumpingcalculations”.
58  However, the EC’s conversion of currencies with regard to the allowances (i.e.
transport, freight, insurance, charges, credit, warranty, commission) were not based on the table of thedaily exchange rates that was collected during the on-the-spot verification.  Given that the Brazilian
exporter used the exchange rates that prevailed on the day the foreign exchange transaction was
settled, on the basis of the Brazilian Central Bank’s rates, the currency conversions made by the
Brazilian exporter and the EC could not lead to the same amounts.
91. Does Brazil object to the ultimate use by  the European Communities of daily exchange
rates using the date of the invoice?  If so, where is this specific objectio n evident in the record of
the investigation?  Can Brazil clarify the meaning of "the date of settlement of the foreign
exchange transaction", used by T upy in its Questionnaire Response?
Brazil is not objecting to the EC’s decision to convert currencies into Brazilian Reais by using
the daily rates.  Regarding the phrase “the date of settlement of the foreign exchange transaction”
Brazil recalls that the Brazilian exporter used the exchange rates that prevailed on the day the foreign
exchange transaction was settled, on the basis of the Brazilian Central Bank’s rates.
59  Given that the
Brazilian accountancy rules take the day of settlement as the date for calculating the amount received
by the company and the high currency movements during the period considered, the Brazilian
exporter reported its export transactions accordingly.60
92. Under "Issue 9", is Brazil's objection th e allegedly inadequate disclosure by the
European Communities of the basis of its currency conversion calculations?  If so, on what basis
does Brazil believe that this claim involves Article 2.4.1?
Brazil clarifies as follows. Given that the currency conversions were required in order to
make a fair comparison between the export price and the normal value under Article 2.4, Brazil is not
objecting to the EC’s decision to convert currencies  into Brazilian Reais but to the manner in which
the conversion was carried out for the Brazilian exporter’s export transactions. Article 2.4.1 sets forth
rules with respect to the conversion of currencies to be applied "[w]hen the comparison underparagraph 4 requires a conversion of currencies” and that “such conversion should be made using the
rate of exchange of the date of sale”.  However, the EC’s conversion of currencies with regard to the
                                                     
56 This information is part of the record of the investigation; see Tupy’s Questionnaire Response (BRL-
4), Section H-3.1.
57 See the Deficiency Letter (BRL-6).
58 See recital 52 of the Definitive Regulation (BRL-19).
59 See Tupy’s Questionnaire Response (BRL-4), Section G.1.7; see also the First Submission of Tupy
(BRL-5), Section 1.3.6.
60 See the Fourth Submission of Tupy (BRL-13), page 36, para 13.WT/DS219/R
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allowances ( i.e. transport, freight, insurance, charges, credit, warranty, commission) was not based on
the tables of the daily exchange rates that were collected during the on-the-spot verification as stated
by the EC.  Consequently, as the EC’s benchmark to convert currencies related to the invoice values
and to the export expenses was not the same, the selective use of the exchange rates cannot be in
accordance with Article 2.4.1.  In any case the comparison between the adjusted export prices and theadjusted normal values under Article 2.4 was not fair.
93. Did Brazil receive a comprehensive copy of the table it refers to on p. 96 of its first
written submission?  Comment on the EC stat ement in the Transparen cy Letter that the
exchange rate could be calculated by dividing th e "turnover in real" by the "net invoice value"?
Can the relevant date for the exchange rate used  be deduced by referring to the exchange rate
of the date of the invoice referred to in the third column of the table?
The Brazilian exporter did receive a copy of the tables of the daily exchange rates allegedly
used by the EC.
61  Brazil submits that the EC’s response to the Brazilian exporter’s question was
improper. Brazil agrees with the EC that a simple division of the column ‘Turnover in real’ by the
column ‘Net invoice value’, as instructed by the EC , gives an exchange rate used in the conversion of
invoice values of the export sales.  However, the said response was not proper given that the Brazilian
exporter had requested a disclosure of the exchange rates used in conversion by the EC.  As stated in
answer to question 90 above, this question related to the allowances, which the EC, depending on itsfindings, deducted from the export transaction prices of the Brazilian exporter and where the currency
conversion is not in line with the table of daily rates provided.
94. Could Brazil comment on the EC explanation concerning the exchange rate on a certain
date in the EC's first written submission, para.  222?
Brazil agrees with the EC that the turnover of each transaction was converted on the basis of
the tables of exchange rates disclosed.  However, Brazil submits under Issue 9 that the currency
conversions of allowances granted by the EC were not based on the tables disclosed. Brazil observes
that the EC tries to downplay Brazil’s argument by lengthy explanations.  However, Brazil submits
that the claim under Issue 9 is not related to one date of exchange rate or one transaction, but the
problem underlying the claim which is generic in nature.
ISSUE 11:  "NO PROPER DUMPING MARGIN FINDINGS"("ZEROING")
To Brazil:
95. The European Communities calculates the impact of the application of zeroing in this
investigation to be 2.73 per cent ( i.e.  a dumping margin of 34.82 per cent as opposed to 32.09
per cent).  Does Brazil believe that this is a "relatively limited impact"? (see EC first written
submission, para. 250)
The EC tries to down play the infringement of Ar ticle 2.4.2 by alleging that the impact of the
zeroing methodology in the present case is not sign ificant.  Brazil disagrees with this assessment
given that the EC’s methodology increases not only the likelihood of a determination of dumping but
also the magnitude of the dumping margin that wi ll be concluded.  Brazil also points out that the
practice of zeroing and the infringement of Article 2.4.2 are inherently unfair and do not allow a fair
comparison to be made within the meaning of Article 2.4.
In view of the difference between 32.09 per cent and 34.82 per cent and assuming that the
volume and the price of imports from the Brazilian exporter would have remained the same as during
                                                     
61 These tables were annexed to the Disclosure Preceding the Definitive Regulation (BRL-16).WT/DS219/R
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the IP and unchanged after the imposition of the definitive anti-dumping duties, the EC importers
would have paid 25.154 Euro more each year.
To both parties:
How would this consideration be relevant here?
As the EC has failed to show that the zero ing methodology ensures a fair comparison between
the normal value and export price, Brazil believes that the EC’s statement of “relatively limited
impact” is not relevant here.
ISSUE 12: "NO PROPER CONSIDERAT ION OF IMPORT VOLUME TRENDS"
To Brazil:
96. Could Brazil comment on the EC statemen t in paragraph 252 of its first written
submission concerning Article 3.1?  Does Article 3.1 impose obligations that are additional to
those imposed by paragraphs 3.2-3.5 AD?  If so, what are those obligations?  Would a violation
of any of paragraphs 3.2-3.5 ipso facto  lead to a violation of Article 3.1, or vice versa?  Cite any
relevant material in your response.
With regard to the EC’s argument, Brazil refers to the Appellate Body’s findings in Thailand
– H-Beams  that Article 3.1 is “an overarching provision that sets forth a Member's fundamental,
substantive obligation" with respect to the injury determination and that this general obligation
"informs the more detailed obligations" in the remainder of Article 3.62  Brazil also recalls that the
panel in Mexico – HFCS  described the relationship between Article 3.1 and Articles 3.2-3.5 by stating
that “Article 3.1 is a general provision” and that “[t]he succeeding sections of Article 3.1 provide
more specific guidance in the determination of injury”.  The Panel also stated that “Article 3.2 sets
forth factors to be considered with regard to the volume and price effects of imports which Article 3.1
requires to be examined …Article 3.3 establishes the requirements for cumulative analysis…
Article 3.4 sets forth factors to be considered in examining the impact of dumped imports on the
domestic industry, as required by Article 3.1…Article 3.5 establishes requirements for the analysis of
the causal link.” (emphasis added).63
Brazil understands that Article 3.1 requires the investigating authority’s determination to be
based on “positive evidence” and involve an “objective examination”, which obligation covers also
the investigating authorities’ examinations under the subsequent sections of Article 3.
Regarding “positive evidence”, the Appellate Body in the United States – Hot-Rolled Steel
case identified that the term relates to “the quality of the evidence that authorities may rely upon in
making a determination” where “positive” means that “the evidence must be of an affirmative,
objective and verifiable character, and that it must be credible”.  Consequently, the focus for “positive
evidence” is on the facts underpinning and justifying the injury determination.64  With regard to
“objective examination” the same Appellate Body de fined that the word "examination" relates “to the
way in which the evidence is gathered, inquired into and, subsequently, evaluated” and that the word
"objective" indicates essentially that the process of  examining “must conform to the dictates of the
basic principles of good faith and fundamental fairness”.  In particular, the Appellate Body specified
that an objective examination "requires that the domestic industry, and the effects of dumped imports,
                                                     
62 Thailand – Anti-Dumping Duties on Angles, Shapes and Sections of Iron or Non-Alloy Steel and H-
Beams from Poland , WT/DS122/AB/R, ‘Thailand – H-Beams AB Report’, paras 90 and 106.
63 Mexico – Anti-Dumping Investigation of High Fructose Corn Syrup (HFCS) from the United States ,
WT/DS132/R, paras 7.118-7.119.
64 ‘United States – Hot-Rolled Steel AB Report’ , para 192.WT/DS219/R
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be investigated in an unbiased manner, without favouring the interests of any interested party, or
group of interested parties, in the investigation”65 and that “investigating authorities are not entitled to
conduct their investigation in such a way that it becomes more likely that, as a result of the fact-
finding or evaluation process, they will determine that the domestic industry is injured”.66
In the present case, for example, the EC has zeroed the “negative” undercutting margins when
calculating an average margin of undercutting.  Regarding this EC’s practice of zeroing, Brazil
submits that the EC’s price effect determination under Article 3.2 was not based on “positive
evidence” as obliged by Article 3.1.  The EC’s practice of zeroing the “negative” undercutting
margins effectively means that the EC reduces th e prices of the exported product types in those
comparisons.  Specifically, when zeroing, the weighted average price for exported product types is
counted as being equal  to the weighted average price for the EC product types, irrespective of the fact
that, in reality, the former is higher  than the latter.  Consequently, the EC’s methodology means that it
is manipulating the prices of Brazilian exported product types.
Moreover, Article 3.2 directs an investigative authority to consider whether there has been “a
significant price undercutting by the dumped imports”, i.e. whether the actual import prices of the
dumped imports have been significantly lower than the actual prices of the domestic industry.  As the
EC, however, has not used actual but artificial import prices fixed at the level of the domestic
industry, the EC’s consideration under Article 3.2 was not based on “positive evidence”.
Furthermore, the EC’s methodology for price ef fect determination leads to an unacceptable
situation, in which an exported product type, wh ich matches the EC product type, will always be
equal to the EC industry’s prices.  Given that this methodology, which increases not only the
likelihood of a determination of price undercutting but also the magnitude of the price undercutting,
always works to the prejudice of the exporter.  Th erefore, the EC’s methodology is inherently unfair,
as condemned by the Appellate Body in United States – Hot-Rolled Steel,  and does not constitute an
“objective examination” under Article 3.1.
As the EC’s methodology leads inevitably to the affirmative final determination of price
undercutting, the consideration of the effect of the dumped imports on prices in the EC market under
Article 3.2 was not based on “positive evidence” and did not involve an “objective examination” as
obliged by Article 3.1.  Therefore, Brazil opines that the EC has acted inconsistently with both
Articles 3.1 and 3.2.
To both parties:
97. How, if at all, do the obligations in Articles 3.2 and 3.3 AD interrelate?  Could Brazil
comment on the EC statement in paragraph 263 of  its first written submission that "…Brazil
denies … that cumulation applies in the operation of Article 3.2"?
Article 3.2 requires the investigating authorities to “consider” two factors on a country per
country basis while determining injury, i.e., the volume trend of the dumped imports and the effect of
the dumped imports on prices (whether there has been a significant price undercutting, pricedepression or price suppression).
Article 3.3, however, concerns an exceptional case where the investigating authorities may
cumulatively assess the effects of the dumped imports “only if” they could satisfy three criteria:, (i)
the margin of dumping from each country is more than de minimis ; (ii) the volume of imports from
each country is not negligible; and (iii) a cumulative assessment of such effects is appropriate in light
of the “conditions of competition”.
                                                     
65 ‘United States – Hot-Rolled Steel AB Report’ , para 193.
66 Ibid, para 196.WT/DS219/R
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Firstly, Brazil would like to point out that Article 3.3 (b) refers to “the conditions of
competition” and not to “competition”, as the EC seems to advocate.67  The ordinary meaning of
“conditions of competition” is “something essential to the appearance or occurrence of the act or
process of competing”.68  Brazil thus submits that Article 3.3 directs the investigative authorities to
evaluate all relevant economic factors that are specific to the market concerned, such as
substitutability, price and non-price factors as well as channels of distribution among which the
volume trend of the dumped imports from each country subject to the investigation is, as a function of
other determinants of demand, one of the most important factors.
Brazil submits that considerations under Article 3.2, in particular the volume trend of the
dumped imports, are essential to inform an investigating authority of the manner in which the dumped
imports are competing with each other and with the domestic like product and, although indirectly, of
the underlying conditions of competition.  In case the volume trends of various imports as considered
by an investigative authority under Article 3.2 are pointing in different directions, these dissimilarities
are also indications that the conditions of competition for these imports are not the same or similar.
In this respect, given that Article 3.3 obliged the EC not only “to consider” but also “to
determine”, the EC’s statement that it “has demonstrated that it did, in fact, consider the issue of
significant volume increase for exports from Brazil considered in isolation”69 is indicative of the EC’s
lightweight approach.  With regard to the term “determination” (and not “consideration”) in
Article 3.3, instead of citing the Latin tag expressio unius est exclusio alterius  the EC should have
cited another Latin tag ut res magis valeat quam prereat  whereby “all provisions of a treaty must be,
to the extent possible, given their full meaning so th at parties to such a treaty can enforce their rights
and obligations effectively”.70
Indeed, Brazil claims that “if exports from one country are significantly increasing while
those from another country are stable or decreasing then they are “competing to different extents and
in different ways” and cumulation would not be just ified” as quoted by the EC.  In view of Brazil’s
overall position as stated above, dissimilarities in the import volumes are inevitable indications that
the conditions of competition of those imports are not the same or similar.
In this context, Brazil disagrees with the United States that “it is not necessary for an
authority to consider the significance of the volume and price effects of imports from each individualsubject country before it may cumulate imports under Article 3.3”.
71  Brazil opines that although
Article 3.3 does not explicitly include Article 3.2 as a prerequisite for cumulation, the “conditions of
competition” criterion under Article 3.3 (b), which is a prerequisite for cumulation, does cover a
broad range of elements to be determined before the cumulative assessment, including the factors that
are mentioned under Article 3.2.
Therefore, by failing to determine the volume trend of the dumped imports on a country by
country basis, the EC did not satisfy the “conditions of competition” requirement under Article 3.3(b).
Consequently, the EC should not apply cumulation to the Brazilian imports.
                                                     
67 ECFS, para 305.
68 The ordinary meaning of the word “competition” implies the notion of “the act or process of
competing” and the word “condition” is “something essential to the appearance or occurrence of somethingelse”; see the Concise Oxford Dictionary.
69 ECFS, para 301 which is cress referring to para 264.
70 ‘Turkey – Restrictions on Imports of Textile and Clothing Products , WT/DS34/R of 31 May 1999;
para 9.96 and footnote 327 where the Panel stated that “[t] he principle of effective interpretation or "l'effet utile"
or in Latin ut res magis valeat quam pereat reflects the general rule of interpretation which requires that a treaty
be interpreted to give meaning and effect to all the terms of the treaty. For instance one provision should not begiven an interpretation that will result in nullifying the effect of another provision of the same treaty”.
71 Oral Statement of the United States, para, 12.WT/DS219/R
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98. Does the data before an investigating author ity have to demonstrate that a significant
increase in imports from a particular source ha s occurred during the IP in order to satisfy
Article 3.2?  What is the significance – if any -- of the term “whether” (rather than “that”) in
the phrase "consider whether there has been a significant increase in  dumped imports" in
Article 3.2 AD?
With regard to the first part of the question, Brazil agrees that in order to satisfy Article 3.2,
an investigating authority does not need to “demonstrate”, but has the obligation to “consider”,
whether a significant increase in imports from a particular source has occurred during the
investigating period.
In its First Submission the EC argued that “Article 3.2 has procedural and substantive
aspects” and, as regards procedure, that Article 3.2 “requires the investigating authorities to ‘consider’
the volume and price factors”.72  In other words, the EC argued that Article 3.2 only requires the
investigating authority to consider the volume of  the dumped imports and not to consider “whether
there has been a significant increase in dumped imports”.73  It seems that the EC is confused between
Articles 3.2 (“the investigating authorities shall cons ider whether there has been a significant increase
in dumped imports”) and 3.1 (“shall be based on positive evidence and involve an objective
examination…the volume of the dumped imports…”).
Brazil understands that Article 3.1 requires the investigating authorities to examine both
volume and price factors which determination should be based on “positive evidence” and involve an
“objective examination.” With regard to the volume factor under 3.2, the element that the
investigating authority should consider is “whether  there has been a significant increase in dumped
imports, either in absolute terms or relative to production or consumption in the importing Member”.
Therefore, the fact that the investigating authorities have considered just the volume of the
dumped imports is not enough to satisfy the requirements under Article 3.2.  They should consider
whether there has been a significant increase in the import volume, where Brazil interprets the term
“significantly” to refer to the amount of increase in dumped imports.  This interpretation is supported,
for example, by the findings in the Thailand – H-Beams  where the Panel stated that “our task is to
examine whether the Thai authorities properly established the facts concerning the existence of an
increase in dumped imports and evaluated those facts in an unbiased and objective manner”74
(emphasis added).  Brazil submits that the EC did not consider at all whether the dumped importsfrom Brazil had significantly increased, but assumed that this was unnecessary because imports from
Brazil had always been significant.
75
With regard to the question as to what type of record could show that the investigating
authorities have considered whether there has been a significant increase in dumped imports, in
absolute or relative terms, the panel in the Thailand – H-Beams  case has given some examples.  This
includes the statement made by the Thai authorities in the final determination that the volume of the
dumped imports from Poland has “continuously increased” and the non-confidential disclosure tables
which show a 10 per cent increase in volume from 1995 to the investigation period as well as otherexamples.
76
                                                     
72 ECFS, para 256.
73 See also Brazilian Oral Statement para 23.
74 See Thailand – Anti-Dumping Duties on Angles, Shapes and Sections of Iron or Non-Alloy Steel and
H-Beams from Poland , WT/DS122/R, ‘Thailand – H-Beams’ , para. 7.157.
75 See recital 140 of the Provisional Regulation (BRL -12) and recital 71 of the Definitive Regulation
(BRL-19); see also BFS Part VIII and Brazilian Oral Statement para 22.
76 See ‘Thailand – H-Beams’  paras 7.164 - 7.170.WT/DS219/R
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However, in the present case, the EC’s statement that the Brazilian imports “were always
significant” and “far from being negligible” ca n only show that the EC has considered the volume  of
imports from Brazil.  It cannot demonstrate that the EC has considered whether there has been a
significant increase in dumped imports, in absolute or relative terms.  Therefore, the EC’s practice has
violated Article 3.2.
As for the second part of the question, concerning the significance of the term “whether”
(rather than “that”) in Article 3.2, Brazil notes that there is a difference between the ordinary
meanings of the terms “whether” and “that”. Accord ing to the Concise Oxford Dictionary, “whether”
introduces an alternative possibility, whereas “that” gives a more affirmative sense which does not
introduce such an alternative possibility.  In the context of Article 3.2, the sentence “whether there has
been a significant increase in dumped imports” can be translated into “ either  there has been a
significant increase in dumped imports or there has not been a significant increase in dumped
imports”.  If “whether” is replaced by “that” in Article 3.2, the sentence “consider that there has been
a significant increase in dumped imports” would seem to require the investigating authority to
establish that a significant increase in imports has occurred.
However, Brazil believes that the term “whether” further enhances the word “consider” in the
context of Article 3.2.  Namely, the investigating authorities are obliged to “take into account” or “pay
attention to” the matter in question.  The result of their consideration may be positive or negative.
However, in the current case, the key issue is not whether the EC has the obligation to find that there
has been a significant increase in dumped imports.  The key issue instead is whether the EC has theobligation to give consideration to the question of whether there has been a significant increase in
dumped imports.
99. For the purposes of an injury analysis under Articles 3.2 and 3.3 AD, is it necessary for a
Member to establish that a significant increase in the volume of dumped imports has occurred
with respect to imports from exporting countries  individually before and/or after proceeding to
a cumulative analysis?  Why or why not?  Comment, including with reference to paragraph 12
of the US oral statement.
As stated in answer to question 97 above, Brazil submits that Article 3.2 requires the
investigating authority to “consider” the volume and the price effects on a country by country basis.
Article 3.3, however, raises an exceptional case where the investigating authorities may
cumulatively assess the effects of the dumped imports “only if” they could satisfy the dumping,
volume and conditions of competition thresholds.
Brazil points out that Article 3.3 (b) refers to “the conditions of competition” and not to
“competition”.
77  The ordinary meaning of “conditions of competition” is “something essential to the
appearance or occurrence of the act or process of competing”.78  Brazil, thus, submits that Article 3.3
directs the investigating authorities to evaluate all relevant economic factors that are specific to the
market concerned, such as substitutability, price and non-price factors as well as channels ofdistribution among which the volume trend of the dumped imports from each country subject to the
investigation is as a function of other determinants of demand one of the most important indicators.
Brazil recalls that the Appellate Body’s defined in ‘ Korea – Alcoholic Beverages ’ that the
phrase “conditions of competition” describes “a particular type of relationship between two products,one imported and the other domestic” and that “[t]he context of the competitive relationship is
                                                     
77 ECFS, para 305.
78 Supra  note 58.WT/DS219/R
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necessarily the marketplace since this is the forum where consumers choose between different
products” and that competition in the market place is “a dynamic, evolving process”.79
Brazil submits that considerations under Article 3.2, in particular the volume trend of the
dumped imports, are essential to inform an investigating authority of the manner in which the dumped
imports are competing with each other and with the domestic like product, if any, and, indirectly, of
the underlying conditions of competition.  Indeed, differing volume trends indicates that the
conditions of competition for these imports could not be the same or even similar.
Indeed, Brazil claims that “if exports from one country are significantly increasing while
those from another country are stable or decreasing then they are “competing to different extents and
in different ways” and cumulation would not be just ified”, i.e. dissimilarities in the import volumes
are inevitable indications that the conditions of competition of those imports are not the same or
similar.
Thus, Brazil disagrees with the United States that “it is not necessary for an authority to
consider the significance of the volume and price effects of imports from each individual subjectcountry before it may cumulate imports under Article 3.3”.
80  Brazil opines that, the “conditions of
competition” criterion under Article 3.3 (b), which is a prerequisite for cumulation, does cover a
broad range of elements to be determined before the cumulative assessment, including the factors that
are mentioned under Article 3.2.
ISSUE 13:  "NO PROPER CONSIDERATION OF ALLEGED UNDERCUTTING"
To both parties :
100. What is the significance, if any, of the reference in Article 3.2 AD to “a” (rather than
“the”) like product?  And to domestic “p rices” (in the plural rather than singular)?
An investigating authority might find that the “product under investigation” corresponds to
more than one like products produced by the domestic industry.  For example, it may define imports
subject to an investigation as “black heart malleable cast iron tube and pipe fittings” which correspond
to two like products produced by the domestic industry: “black” and “white” heart malleable cast irontube and pipe fittings.  In such cases, the term “like product” refers to a
 like product of “white heart”
and a like product of “black heart” malleable cast iron tube and pipe fittings.
In the context of the price effect examination, Article 3.1 refers to “the effect of the dumped
imports on price s in the domestic market for like product s”.  In this respect Article 3.2 specifies that
the investigative authorities shall consider whether there has been significant price undercutting of the
dumped imports (“black heart”) in comparison with the price of a like product of “black” heart fitting
or a like product of “white” heart fitting or, under certain conditions, both.
However, Brazil submits that the wording “throughout this Agreement” in Article 2.6, when
read in conjunction with the wording in Article 3.2, obliges the investigating authorities to compare
products which are identical, i.e. alike in all respects to the product under investigation.  Only in the
absence of such identical products can the investig ating authorities resort to a comparison between
products, which have, although not alike in all respects, characteristics closely resembling those of the
product under investigation.  Consequently, an investigating authority has an obligation to compare
“black with black” and only in the absence of such identical products  to compare “black with white”.
                                                     
79 See ‘ Korea – Beverages AB Report ’, para 114.
80 Paragraph 12 of the Oral Statement of the United States.WT/DS219/R
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In the latter case the investigating authority has an obligation to ensure that the prices of the products
are comparable, i.e. to neutralise the differences affecting price comparability.
101. What is the significance, if any, of the referen ce to " the dumped imports" in Article 3.2
AD?
The wording in Articles 3.1 and 3.2 indicates that a price undercutting must be established for
the dumped imports, i.e. for the totality of the imports concerned .  Firstly, Brazil notes the Panel’s
finding in ‘ EC – Audio Cassettes ’ that “[t]he number of sales at undercutting prices was particularly
important, because it would provide an indicator of the likely number of sales lost by the domestic
industry”.81  However, this ‘transaction-to-transaction’ approach is principally the same as that
advocated by India in ‘ EC – Bed-Linen ’ that the volume effect, price effect and consequent impact
considerations under Article 3 were related only to those transactions for which a positive dumping
margin was calculated.82  However, the panel disapproved and stated that “investigating authorities
may treat all imports from producers/exporters for which an affirmative determination of dumping is
made as "dumped imports" for purposes of injury analysis under Article 3”.83  Consequently, Brazil
submits that the phrase “dumped imports” comprises all imports of the product from an exporting
producer about whom an investigative authority has made an affirmative determination of dumping.
102. What is the significance, if any, of the EC assertion that the practical result of “zeroing”
in the consideration of whether there was sign ificant price undercutting in this case was de
minimis  (0.01 per cent)?
Neither the Brazilian exporter or Brazil are able to verify the accuracy and the adequacy of
the EC’s calculation.  This is because the EC did not disclose any information with regard to the EC
producer’s prices per product type in cases where the undercutting margin was negative , i.e. where the
Brazilian import price per matching product type was equal to or higher  than the weighted average
price of the comparable EC product type.  Indeed, Brazil notes that the EC’s price undercutting and
underselling calculation, as disclosed, consists of 775 lines corresponding to the same number of
matching PCN-codes (product types).  Indeed, Brazil notes that out of these 775 types the
undercutting margin was “negative” for 247 product types, which represents 32 per cent of the total
product types used in the comparison.  Finally, Brazil notes that the EC used only “matching types”
leaving 40 per cent (in terms of volume) or 30 per cent (in terms of value) of Brazilian exports out of
the calculations, but is unable to comment what the numbers would be had the EC used all the typesin its calculations.
103. Unlike Article 2 of the AD Agreement  in relation to dumping, Article 3 contains no
specific guidance as to the methodology an investigator may use to consider price undercutting.
Comment.
Brazil agrees.  However, Brazil submits that all of the particular methodologies applied by the
investigating authorities which operate against the basic principles of good faith and fairness are in
violation of Article 3.1.  The requirement in Article 3. 1 to conduct an “objective investigation” on the
basis of “positive evidence” obliges the investigating authority, inter alia , to conduct a fair
comparison between the product under investigation an d the like product.  It follows that, although
Article 3 does not contain an explicit provision for adjustments or allowances, such adjustments or
allowances should be made if they are necessary to ensure price comparability.  For example, the
product concerned may be defined by an investigating authority as a ‘passenger car’. Brazil does not
believe that a comparison between the actual import price of a four door passenger car (the only
                                                     
81 See EC - Anti-Dumping Duties on Audio Tapes in Cassettes Originating in Japan , ADP/136, not
adopted, ‘EC – Audio Cassettes’, para 437; quotes in the EC’s First Submission, para 269.
82 See EC – Bed Linen , para 6.121-6.123.
83 See EC – Bed Linen , para 6.139.WT/DS219/R
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imported model) and the actual domestic industry’s price of a two doors passenger car (the only
domestically produced model) without any adjustments or allowances would constitute an “objective
examination”.  Moreover, irrespective of the fact that Article 3.2 does not explicitly prescribe a
particular methodology for a price comparison between the imported product and the domestic
product, it is clear that such a comparison, for example at a different level of trade, would not
constitute an “objective examination”.
ISSUE 14:  "NO PROPER CALCULATION OF ALLEGED UNDERCUTTING MARGINS"
To Brazil:
104. Under Issue 14, it seems that Brazil is allegi ng that by not granting an adjustment under
Article 2.4 for the alleged differences in the cost of production of "black heart" and "white
heart" fittings, the European Communities consequently necessarily violated Article 3.2 AD?  If
not, could Brazil explain its allegation?
Brazil regrets the misunderstanding and clarifies that its claim is not related to Article 2.4 but
to Article 3.2.  As stated in answer to question 103, Brazil submits that, although Article 3 does not
contain explicit provision for adjustment or allowances, the basic principles of good faith and
fundamental fairness mean that adjustments or allowances should be made if they are necessary to
ensure price comparability.  Brazil recalls that Article 3.2, when read in conjunction with the wordingin Article 2.6, obliges the investigating authorities to compare products which are identical.  Only in
the absence of such identical products should the authorities resort to a comparison between products,which have characteristics closely resembling those of the product under investigation.  Consequently,
the EC had a positive obligation to compare “black with black” and only in the absence of suchidentical products to compare “black with white”.  However, in the latter case the EC was obliged toaccount for differences in the quality of the products, which were reflected on the market and affected
price comparability, as an adjustment in the price effect examinations.  Brazil does not believe that a
comparison between the actual import price of a black  heart fitting and the actual domestic industry’s
price of a white  heart fitting without any adjustments or allowances, would constitute an “objective
examination”.
To both parties :
105. Is there a requirement under the AD Agreement,  whether in Article 3.2 or elsewhere, to
adjust prices before comparison  in the context of injury?
Yes.  As stated in answer to question 103, Brazil submits that all of the particular methods
applied by the investigating authorities under Article 3.2 operating against the basic principles of good
faith and fairness are in violation of Article 3.1.  The requirement in Article 3.1 to conduct anobjective investigation on the basis of positive evidence obliges the investigating authority, inter alia ,
to conduct a fair comparison between the product unde r investigation and the like product.  It follows
that, although Article 3 does not contain an explicit provision for adjustment or allowances, suchadjustments or allowances should be made if they are necessary to ensure price comparability.
Assume that the investigating authority defined the product concerned as a ‘passenger car’.  Brazil
does not believe that a comparison between the actual import price of a four door passenger car (the
only imported model) and the actual domestic industry’s price of a two door passenger car (the onlydomestic produced model) without any adjustments or allowances, would constitute an “objectiveexamination”.  Consequently, irrespective of the fact that Article 3.2 does not explicitly prescribe a
particular methodology for a price comparison between the imported product and the domestic
product, such a comparison, for example at a different level of trade, would not constitute an
“objective examination”.WT/DS219/R
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106. Article 3.1 AD refers to "prices on the domestic ma rket".  Comment, in relation to the
nature of the consideration required under Article 3.2 AD.
As stated in answer to question 100, an inve stigating authority might find that the “product
under investigation” corresponds to more than one like products produced by the domestic industries.For example, it may define imports subject to an investigation as “black heart malleable cast iron tube
and pipe fittings” which correspond to two like products produced by the domestic industry: “black”
and “white” heart malleable cast iron tube and pipe fittings.  In such cases, the term “like product”
refers to a like product of “white heart” and a  like product of “black heart” malleable cast iron tube
and pipe fittings.  In the context of the price effect examination, Article 3.1 refers to “the effect of the
dumped imports on price s in the domestic market for like product s”.  In this respect Article 3.2
specifies that the investigating authorities shall consider whether there has been significant price
undercutting of the dumped imports (“black heart”) in comparison with the price of a like product
(either “black” or “white” or, in certain conditions, both) of the importing Member.
However, as stated in answer to question 104, Brazil submits that the wording “throughout
this Agreement” in Article 2.6, when read in conjunction with the wording in Article 3.2, obliges theinvestigating authorities to compare products which are identical, i.e. alike in all respects to the
product under investigation.  Only in the absence of such identical products can the investigating
authorities resort to a comparison between products, which, although not alike in all respects, have
characteristics closely resembling those of the product under investigation.  Consequently, an
investigating authority has an obligation to compare “black with black” and only in the absence of
such identical products to compare “black with white ”.  In the latter case the investigating authority
has an obligation to ensure that the prices of the products are comparable, i.e. to neutralise the
differences affecting price comparability.
ISSUE 15:  "NO PROPER CUMULATION OF IMPORTS"
To both parties:
107. What is the meaning of cumulatively assessing the "effects" under Article 3.3 of the AD
Agreement?  What are the "effects" that can be  cumulated and where are these referred to in
the other provisions of Article 3?  Comment including with reference to para. 14 of the US  oralstatement (to the extent it is relevant).
Brazil submits that Article 3.3 clearly requires a two stage approach: first, the investigating
authority should identify the effects of the dumped imports; only after this identification can the
authority proceed to a cumulative assessment.  In the first phase the investigating authority should
identify the effects of the dumped imports from each country, and it is only after this identification
that the cumulative assessment takes place.  Cumula tion as such means that the investigating authority
may depart, under strict conditions, from the normal procedures to conduct the injury and causation
determination on a country by country basis.
It must be noted that Article 3.3 relates to the situation where the investigating authorities
“may cumulatively assess the effects  of [the] imports” (emphasis added) rather than the imports, or
import volumes, as such.  A similar approach is also taken in Article 3.1, which makes a distinction
between the examination of “the volume of the dumped imports” and “the effect of the dumped
imports” on domestic prices (Article 3.1a)), as well as the “consequent impact of these imports on”the domestic producers (Article 3.1b)).  Similarly, Article 3.2 separates between the “increase in
dumped imports” and the “effect of the dumped imports on prices.”  On its part, Article 3.4 merely
concentrates on the effects of the dumped imports as it outlines the fifteen injury factors that should
be examined in this regard.  Thus, the cumulative  assessment authorised by Article 3.3 must indeed
refer to the cumulative assessment of these fifteen injury factors, which should give a completeWT/DS219/R
Page E-41
picture of the injury caused by the dumped imports.  On the other hand, a cumulative assessment of
the volumes of the dumped imports would serve no purpose in this respect.
Moreover it also follows, in view of the wo rding of Article 3.2, that the preliminary injury
indicators of “significant increase in dumped imports” and/or “significant price effect” must bepresent in order to justify a cumulative assessment of the effects of these dumped imports.  Thus, only
where injury seems to have been caused (i.e. satisfying the preliminary conditions of Article 3.2) the
concrete scope of the injurious effects, as defined in Article 3.4 and their causal link to those effects,
as measured under Article 3.5 may be cumulatively assessed, subject to the conditions of Article 3.3.
108. With reference to paragraph 341 of the EC first written submission, would a breach of
Article 6.2 AD be possible where no breach of Articles 3.2 or 3.3 AD was found?
This may be the case if the investigating authority did not disclose material information under
Articles 3.2 and 3.3 during the normal course of the proceeding, for example not until a dispute
settlement proceeding .  This practice may preclude an interested party from having the full
opportunity to defend its interests, in violation of Article 6.2.
ISSUE 16:  "INAPPROPRIATE CONSID ERATION OF INJURY INDICATORS"
To the EC:
109. Is the European Communities arguing that its evaluation of "growth" is implicitly
apparent in the final determination?  If so, on what basis?
To Brazil:
110. Could Brazil comment on the EC statemen t in paragraph 356 of its first written
submission that many of Brazil's claims "are based on a misapprehension of the structure of
Article 3 as regards the respective roles of paragraphs 4 and 5?  In particular, what is Brazil's
view of the relationship between the factors e numerated and referred to in Article 3.4 and those
enumerated and referred to in Article 3.5?
Articles 3.4 and 3.5 have a different focus. Article 3.4 focuses on an evaluation of the state of
the industry concerned.  This means that an evaluation of “all relevant factors and indices having a
bearing on the state of the industry” should provide a description, (a picture) based on positive
evidence of the economic situation of the domestic industry.  Only after this examination takes placemight an investigating authority conclude that the do mestic industry has suffered injury as defined in
footnote 9 to Article 3.  However, in case there is an affirmative determination of injury, the focus of
the determination of causation under Article 3.5 is to demonstrate why the domestic industry has
suffered injury, i.e. what caused the injury.  However, Brazil does note the “combined” concepts of
“factors affecting domestic prices”, “the magnitude of the margin of dumping” and “negative effects
on cash flow” listed in Article 3.4.  An examination of these factors not only relates to whether thedomestic industry might be injured (“a static analysis”) but also to a more dynamic, causal-like
examination, i.e. why the domestic industry might be injured.  Finally, Brazil submits that the EC’s
approach is hypocritical as it is normal for inves tigating authorities, like the EC, to explain why the
domestic industry has suffered injury when examining the injury indicators.84
                                                     
84 See, for example, recital 150 (“[t]he decrease of the production was particularly strong from 1995 to
1996 for two main reasons: firstly, a plant manufacturing malleable fittings in Germany had to be closed and,
secondly, a contraction of consumption had taken pl ace on the Community market”), recital 153 (“that the
Community industry's sales decreased in a time period du ring which the market contracted, while the countries
concerned were able to expand their sales volume”, recital 156 (“[t]he rise of the stock volume has beenparticularly strong as from 1996, in line with the increase of the Community industry's production andWT/DS219/R
Page E-42
111. Comment on the EC arguments concern ing the examination of potential and actual
decline under Article 3.4 (see EC first written submission, paras.  362-363).
Brazil disagrees with the EC and regrets the tone of the EC’s approach.  Firstly, although
Article 3.4 does not prescribe any specific methodo logy for examination, the in vestigating authority is
obliged to evaluate certain injury factors not only from “actual” but also from “potential” perspective.
Secondly, in line with the A ppellate Body’s finding in ‘ United States – Hot Rolled Steel ’ Brazil
submits that Articles 3.1 and 3.4 require that the investigating authorities  “must determine,
objectively, and on the basis of positive evidence, the importance to be attached to each potentially
relevant factor and the weight to be attached to it”.85  Consequently, the obligations in Article 3.4 lie
on the investigating authorities, and not on the Brazilian exporter or, in the course of the disputesettlement, on Brazil to instruct the EC with regard to the methods and approaches it might choose to
carry out the process of examination under Article 3.4.  However, Brazil notes, for example, that the
issue of “potential growth” may be related to planned and/or made R&D expenses and investments.
112. Comment on the EC statement in paragraph 3 49 of its first written submission that has
also fulfilled the Article 3.4 obligation with respect to "growth".
Brazil recalls the Appellate Body’s finding in ‘ United States – Hot Rolled Steel ’ that
“Articles 3.1 and 3.4 indicate that the investigating authorities must determine, objectively, and on the
basis of positive evidence, the importance to be attached to each potentially relevant factor and the
weight to be attached to it” and that in every in vestigation “this determination turns on the "bearing"
that the relevant factors have "on the state of the [domestic] industry".
86  Consequently, Brazil denies
that the EC’s alleged examination of growth, which is only implicitly (if at all) inferred from its
consideration of the other injury factors examined under Article 3.4, can be considered as a well-reasoned and meaningful analysis of the said factor.
113. How, if at all, does the alleged non-disclosure by the European Communities of data
concerning export performance -- also allegedly leading to inconsistencies with Articles 12.2.2
and 6.2 AD -- constitute a "failure to evaluate" under Article 3.4?
Brazil submits that the said non-disclosure does not per se  constitute a breach of Article 3.4,
but the EC’s non-examination does.
To the EC:
114. Indicate in the record of the investigation the sources of information and the
methodology on which the statements and in formation in Exhibit EC-12 are based.  In
particular:
• How was the statement in Exhibit EC-12 on "ability to raise capital" derived from the
information given in "questionnaires and annual accounts"?
• How was the statement in Exhibit EC-12 on "wages" derived from the information given
in " annual accounts"? Explain the meaning of "allocation on the basis of turn over"?
• How was the statement in Exhibit EC-12 on "productivity" derived from the information
given in "questionnaires"?
                                                                                                                                                                    
decreasing sales volume”) and recital 157 (“the year 1995 and the negative profitability level found on average
for the Community industry reflect costs associated with the plant closure which occurred in 1995”) of the
Provisional Regulation (BRL-12).
85 ‘United States – Hot-Rolled Steel AB Report’ , para 197.
86 Ibid, para 197.WT/DS219/R
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• How was the statement in Exhibit EC-12 on "return on investments" derived from the
information given in "questionnaires and annual accounts"?
• How was the statement in Exhibit EC-12 on "cash flow" derived from the information
given in "questionnaires and annual accounts"?
• How and on what basis was the statement in Exhibit EC-12 on "magnitude of margin of
dumping" derived?
115. We note the questionnaire to domestic producers (Exhibit BRL-37 ff.) requests
information in section D2 concerning quantities and values of purchases/ imports of the product
concerned.  Does this pertain only to the produc t originating in the countries listed on the first
page of the questionnaire, or to all imports of the product concerned from all sources?
116. Does each questionnaire response by the domestic industry provide information on each
of the factors identified in the questionnaire? Provide a detailed response with reference to the
relevant provisions of the record of the investigation.
To both parties:
117. Would a breach of Article 3.4 AD necessarily also lead to a breach of Article VI of the
GATT 1994?
Yes.  Article VI of the GATT 1994 condemns  dumping and authorises Members to apply
duties only if “it [dumping] causes or threatens material injury… or materially retards the
establishment of a domestic industry”.  With regard to the AD Agreement, Article 1 provides that “an
anti-dumping measure shall be applied only under the circumstances provided for in Article VI of theGATT 1994 and pursuant to investigations initiated and conducted in accordance with the provisions
of this Agreement”.  The substantive elements of the examination of the impact of the dumped
imports on the domestic industry are provided in Article 3.4.  Given that Article VI of the GATT 1994
does not condemn dumping as such but only injurious dumping, Brazil submits that defected injury
determination under Article 3.4 of the AD Agreement infringes also Article VI, i.e. the measures
imposed would be based on circumstances other th an provided for in Article VI of the GATT.
118. Does Brazil's allegation concerning cumula tion and injury on page 205 of its first
written submission relate to the obligations under Article 3.4 or 3.5?  Substantiate your
response.
Article 3.3 provides an essential substantive requirement governing the cumulative
assessment of the effects of the dumped imports. Brazil submits that a breach of Article 3.3 is
irreparable and, thus,  both the subsequent determinations of injury under Article 3.4 and causation
under Article 3.5 would inevitably be defective.  In other words, the requirements of Article 3.3 could
not be “cured” through the subsequent determinat ions.  Moreover, any anti-dumping duty imposed on
the basis of an investigation not conducted in accordance with the provisions of the AD Agreementwould also infringe Article 1 of the AD Agreem ent and the measures imposed would be based on
circumstances other than those provided for in Article VI of the GATT.
119. Could information requested by the European Communities in the questionnaires to
domestic producers relating to the "effect of continued imports" support an investigatingauthority's evaluation of the magnitude of the margin of dumping within the meaning of
Article 3.4 AD ? Did it in this case?
No.  Brazil denies any interrelation between these concepts.  The concept of “the margin of
dumping” relates, in general, to exporters’ quantified price differentiation between domestic and
export markets.  Thus, “the magnitude of the margin of dumping” relates to the size (‘magnitude’) ofWT/DS219/R
Page E-44
that price difference.  However, the margin of dumping (or the size of that margin) is in no way
indicative of foreign suppliers’ competitive position in the market of the importing  Member.  For
example, irrespective of the dumping margin or its magnitude, an actual price level applied by an
exporter on the importing market may be higher than that of the domestic industry.  Thus, the
domestic producers’ forward looking guess relating to the “effect of continued imports” (on theimporting  Member’s market) could not form a positive basis for the investigating authority’s
evaluation of the issue of the magnitude of the dumping margin.
120. How can the Panel verify whether and to what extent the European Communities
investigating authorities examined  the issue of outsourcing and ownership links of the domestic
industry with producers located in countries not subject to the investigation?  Please indicate
the relevant parts of the record of the investigation.
Brazil cannot see how it would be possible to prove the negative.  What counts is the record
of the investigation, which in this case does not give any detail of such an examination, if any.
Brazil recalls that the Brazilian exporter had repeatedly requested the EC to take account of
the ownership of the sole Bulgarian fittings producer Berg Montana by Accesorios Tuberia SA(Atusa).  Moreover, Brazil further recalls that the Brazilian exporter had also provided information
regarding the two other Applicants, namely R.Woeste Co GmbH&Co and Georg Fischer Fittings
GmbH, and their relations with Egyptian and Turkish producers respectively.
87  Given that the EC did
not elaborate on the examination it claims it had unde rtaken, other than admitting rather flatly that it
could not find anything except that “one Community producer did import the product concerned fromone third country”
88,  Brazil is obviously unable to comment on the factual basis of that seemingly
hollow statement.
Nonetheless, Brazil submits that the EC’s statement does not seem to reflect any real effort by
the EC genuinely to examine the concrete information provided to it by the Brazilian exporter and byothers.
89  In any event, bearing in mind the concrete and detailed nature of the information that the
Brazilian exporter made available to the EC throug hout the original investigation, as well as the
information supporting the Brazilian exporter’s claims which was made available to the EC by other
interested parties90, Brazil cannot help but infer from this and from the EC’s blank assertion that it
could find “no evidence to support Brazil’s allegations”91 that the EC’s examination, was clearly
fundamentally insufficient and inadequate.  Moreover, Brazil submits that its Exhibits 47 to 52
support its conviction that the EC failed to properly investigate the Brazilian exporter’s repeatedsubmissions.  Brazil is of the view that in th e present context, it is incumbent on the EC to
demonstrate and to convince the Panel, and Brazil, that its authorities had in fact properly examined
these submissions.  However, nothing on the record of these proceedings, other than the EC’s mere
unsubstantiated assertions, can show that the EC conducted itself, in this instance, as any responsible
authority would have been expected to conducted itself.
121. Indicate the relevant parts of the record of the investigation dealing with sales outside
the European Communities.
Brazil recalls that the Brazilian exporter had raised the issue of export performance as a factor
contributing to the EC producers’ increased stocks.
92  However, the EC responded to this submission
                                                     
87 See the First Submission of Tupy (BRL-5), page 9; the Second Submission of Tupy (BRL-9), page 2;
the Third Submission of Tupy (BRL-10), pages 10-11; and the Fourth Submission of Tupy (BRL-13), para 14.
88 See recitals 127 and 174 of the Provisional Regulation (BRL-11).
89 See also answers to questions 145 to 147 below.
90 As also admitted by the EC in recital 174 of the Provisional Regulation.
91 ECFS, para 18.
92 See the Fifth Submission of Tupy, BRL-17, para 3.8.2.WT/DS219/R
Page E-45
only indirectly in the Transparency Letter by stating that “it cannot be concluded that the decrease in
sales outside the Community significantly contri buted to the increase of the stock level”.93
ISSUE 17:  "INAPPROPRIATE ESTABLISHMENT OF CAUSATION"
To Brazil:
122. Could Brazil comment on the EC statemen t in paragraph 433 of its first written
submission that:  "The reasons why Tupy is able to charge such prices … have no significance
in a dumping investigation"?
Brazil disagrees with this statement.  Indeed, an anti-dumping analysis focuses on the extent
to which dumping causes injury to the competing domestic industry in the importing market.  As
regards the injury determination, the underlying conditions in the exporter’s domestic market are not
considered.  However, the non-attribution obligation in Article 3.5 requires the investigating authority
to examine any known factors other than the dumped  imports causing injury at the same time to the
domestic industry.  In this case the EC calculated  the following margins for the Brazilian exporter:
dumping 34.80 per cent, undercutting 39.78 per cent and underselling 82.06 per cent.94  Given that the
quantified injury was higher  than the dumping margin, the EC knew  that the injury suffered by the EC
industry was also caused by factors other than the dumped imports.  In essence, even after neutralising
the dumping margin of 34.8 per cent, the Brazilian exporter was still able to charge prices lower by
4.98 per cent than the EC industry and make a prof it.  In other words, the Brazilian producer was
more competitive (cost effective) than the EC industry.  Therefore, Tupy’s competitive advantage
over the EC industry did have an important significance in the investigation, which the EC failed to
recognise.  Moreover, by failing to separate and distinguish the injurious effects of this known factor
(i.e. the injury caused to the EC industry by the Br azilian exporter’s relative competitiveness) the EC
infringed its non-attribution obligation under Article 3.5.
123. How, if at all, does the alleged non-disclosure by the European Communities of data
concerning export performance -- also allegedly leading to inconsistencies with Articles 12.2.2
and 6.2 AD -- constitute a breach of Article 3.5?
Brazil submits that the said non-disclosure does not per se  constitute a breach of Article 3.5,
but the EC’s non-examination does.
124. Differentiate between the references to the different cost of production between "white
heart" and "black heart" fittings in points b) and h) of your analysis under Article 3.5 in your
first written submission.
The margin analysis under point b) relates to the relative competitiveness (cost efficiency) of
the Brazilian exporter over the EC producers.  In particular, it refers to the fact that out of the injury
suffered by the EC producers, as quantified by the EC, the figure of 4.98 percentage points (an injury
margin of 39.78 per cent minus  a dumping margin of 34.8 per cent = 4.98 per cent) is the quantified
injury caused by factors other than the dumped imports.
The analysis under point h), on the other hand, relates directly to the cost difference between
the Brazilian exporter and the EC industry.  As a part of its injury quantification, the EC calculated
the target price  as that at which the EC industry is able to cover its full costs and make a profit of 7
per cent.  By comparing the Brazilian exporter’s price with the target price, the EC found a difference
of 82.06 per cent.  Consequently, th e EC industry’s break-even point ( i.e. the point where price
                                                     
93 See the Transparency Letter, BRL-18.
94 See the Disclosure Preceding the Provisional Re gulation, Annex III (BRL-11) and the Disclosure
Preceding the Definitive Regulation, Annex III (BRL-16).WT/DS219/R
Page E-46
equates to costs) is 75.06 per cent (82.06 per cent-7.0 per cent).  Given that the Brazilian exporters’
sales in the EC were not made at a loss, the cost difference between the Brazilian exporter and the EC
industry was at least 75.06 per cent.
125. Could Brazil indicate the relevant portions of the record of the investigation where itraised -- in the context of causation -- each fa ctor it now refers to in relation to Issue 17.
Brazil’s arguments focus on seven other factors known by the EC:
(i) margin analysis (the EC producers’ competitive disadvantage) - the First Submission
of Tupy (BRL-5), para 2.1.7; the Third Submission of Tupy (BRL-10), para 4.5; the
Fourth Submission of Tupy (BRL-13), para 6 and 7 );
(ii) poor export performance ( the Fifth Submission of Tupy (BRL-17), para 3.8.3 );
(iii) imports from the countries not subject to this investigation  (the First Submission of
Tupy (BRL-5), page 20; the Third Submission of Tupy (BRL-10), para 2.5; the Fourth
Submission of Tupy (BRL-13), pages 23-25; the Fifth Submission of Tupy (BRL-17),pages 15-16 );
(iv) outsourcing ( the First Submission of Tupy (BRL-5), page 9; the Second Submission of
Tupy (BRL-9), page 2; the Third Submission of Tupy (BRL-10), pages 10-11; the
Fourth Submission of Tupy (BRL-13), para 14 );
(v) rationalisation efforts (the Fourth Submission of Tupy (BRL-13), para 30; the Fifth
Submission of Tupy (BRL-17), page 14);
(vi) substitution of the product concerned ( the First Submission of Tupy (BRL-5), pages
19-20; the Third Submission of Tupy (BRL-10), page 8; the Fourth Submission of
Tupy (BRL-13), pages 26-27); and
(vii) the difference in the cost of production and the market perception between the two
variants of the product concerned (the First Submission of Tupy (BRL-5), para 2.1.7;
the Third Submission of Tupy (BRL-10), para 4.5; the Fourth Submission of Tupy
(BRL-13), para 6).
To both parties :
126. What relevant material may guide a pane l's consideration concerning the issue of
"attribution" under Article 3.5 AD?
Firstly, Brazil recalls the Appellate Body’s findings in ‘ United States – Hot Rolled Steel’
where it stated that the non-attribution language in Article 3.5 requires an investigating authority
appropriately to assess the injurious effects of the other injurious factors than the dumped imports.
The said “appropriate assessment” must involve separating and distinguishing the injurious effects ofthe other factors from the injurious effects of the dumped imports as in the absence of such separation
and distinction the investigating authorities would have no rational basis to conclude that the dumped
imports are indeed causing injury justifying the imposition of anti-dumping duties.
95  I n  t h e  s a m e
appeal the Appellate Body also specified that Articl e 3.5 requires an identification of “the nature and
extent of the injurious effects of the other known factors” as well as “a satisfactory explanation of the
                                                     
95 ‘United States – Hot Rolled Steel AB Report’ , paras 222 and 223.WT/DS219/R
Page E-47
nature and extent of the injurious effects of the other factors, as distinguished from the injurious
effects of the dumped imports”.96
Brazil recalls also that the Appellate Body instructed that “adopted panel and Appellate Body
reports relating to the non-attribution language in the Agreement on Safeguards can provide guidance
in interpreting the non-attribution language in Article 3.5 of the AD Agreement” .97
Consequently, the Panel might be inspired by the Appellate Body’s findings in United States -
Lamb Safeguards where it clarified that “the effects of the increased imports, as separated and
distinguished from the effects of other factors, must  be examined to determine whether the effects of
those imports establish a ‘genuine and substantial relationship of cause and effect’ between the
increased imports and serious injury” and that an investigating authority “assess appropriately theinjurious effects of the other factors, so that those effects may be disentangled from the injurious
effects of the increased imports”.
98  Brazil also recalls the Appellate Body’s findings in United States
– Line Pipes  where it specified that the investigating authority must “establish explicitly, through a
reasoned and adequate explanation, that injury caused by factors other than increased [dumped]
imports is not attributed to increased [dumped] impor ts” and that “[t]his explanation must be clear and
unambiguous”, it “must not merely imply or suggest an explanation” and that it “must be a
straightforward explanation in express terms”.99
127. What type of economic analysis would an  investigating authority actually need to
perform to "separate" and "distinguish" between each distinct causal factor?
Brazil submits that all of the particular methodologies applied by the investigating authorities,
which operate against the basic principles of good faith and fairness, are in violation of Article 3.1 (an
“objective examination”) and, thus, also in breach of Article 3.5.  With regard to economic analysis,the obligation in Article 3.1 is that the causality determination must be based on “positive evidence”and involve an “objective examination”.  Given the strict non-attribution obligation under Article 3.5,
(i.e. the requirements to “separate” and “distinguish” in order to establish a ‘genuine and substantial
relationship of cause and effect’), Brazil submits that the non-attribution should, as far as possible, be
based on quantifiable methods.
128. If a product is "dumped" does the reason for that dumping (e.g. a possible comparative
advantage) matter?
No.  However, as stated in answer to question 122, Brazil submits that the Brazilian
exporter’s relative competitiveness over the EC producers was a factor other  than the dumped imports
causing injury to the EC industry and known by the EC.  By failing to separate and distinguish the
injurious effects of this known “other” factor, the EC infringed its non-attribution obligation underArticle 3.5.
129. How, if at all, do the standards of "signifi cant contribution" (e.g.  Definitive Regulation,
para.  113) and "not such to have broken the causal link" (e.g.  Definitive Regulation, para.
111) relate to a genuine and substantial relationship of cause and effect?
The EC’s standards are not related to “a genuine and substantial relationship of cause and
effect”.
                                                     
96 Ibid, para 227.
97 Ibid, para 230.
98 United States – Safeguard Measure on Imports of Fresh, Chilled or Frozen Lamb from New Zealand
and Australia , WT/DS177/AB/R and WT/DS178/AB/R, paras 168 and 179.
99 United States - Definitive safeguard measures on impor ts of circular welded carbon quality line pipe
from Korea , WT/DS202/AB/R, para 217.WT/DS219/R
Page E-48
Brazil observes the EC’s recognition that the other factors, like decline in consumption and
exports, the EC producers’ own imports, imports from the other third countries and substitution, were
having injurious effects on the EC industry.100  Brazil names this approach as the test of “significant
contribution”.
However, it is not apparent from the EC’s analysis how, if at all, it separated and
distinguished the injurious effects of these other factors from the injurious effects of the dumped
imports.  Moreover, the EC’s “significant contribution” test provides no insight into the nature and
extent of the injury caused by these other known factors. Brazil contests that the EC’s
characterisations do not establish any clear, unambiguous and straightforward explanation.  Instead,
Brazil submits that the EC, by just stating that there was “no significant contribution”, effectivelyassumed that those factors did not cause the injury attributed to the dumped imports, which
assumption is not consistent with Article 3.5.
130. What does it mean for a factor to be "known" in the sense of Article 3.5 AD? Comment
on the phrase "all relevant evidence before the authorities" in the sense of Article 3.5 AD.
In view of the Panel’s findings in Thailand – H-Beams , Brazil submits that known factors
other than dumped imports in Article 3.5 include not only factors raised before the investigating
authority but also other factors of which the investigating authority was aware.101  Consequently the
phrase “all relevant evidence before the authorities” refers to the totality of such evidence, namely all
of the known factors that are simultaneously causing injury to the domestic industry.
131. The European Communities has relied on info rmation that differs from Eurostat data.
How could an interested party verify the accura cy of the information relied on? Comment, with
reference to paras. 434-446 and 447-464 of the EC's first written submission.
Brazil submits that, in general an interested party is not able to verify the correctness of the
data used by the investigating authority if an administrative system such as that applied by the EC is
used.  The EC’s confidentiality system precludes interested parties from having access to factual
information classified as confidential, affecting the fundamental rules of due process.  In particular,
Brazil notes that, for example, the apparent consumption as well as the import volumes and values
from countries other than those under the investigation were based on the EC’s official importstatistics (Eurostat).  However, it is still unclear to what extent and why for example, the information
about export volume provided by the EC producers in their questionnaire responses, as verified by the
EC, should have deviated from Eurostat.  Moreover, as the export data has now been provided, Brazilsubmits that even a conservative estimate of consistency of the data used by the EC ( i.e. a stock
reconciliation) demonstrates that it was manifestly inaccurate.  Furthermore, Brazil is of the view that
                                                     
100 The EC concluded that the decline in consumption  “is not such as to have contributed in any
significant way to the material injury suffered by the Community industry”; see recital 176 of the ProvisionalRegulation (BRL-12). Similar statements are also found regarding the EC producers export performance  (“it
cannot be concluded that the decrease of the sales outside the Community significantly contributed to theincrease of the stock levels”; see the Transparency Letter, BRL-18) and own imports of the product concerned
(“one Community producer did import the product concerned from one third country” and “no significant
influence on the situation of that Community producer could have resulted from these imports”; see recital 174
of the Provisional Regulation, BRL-12), imports from the countries not subject to the investigation (“even if
imports from other third countries may have contributed to the material injury suffered by the Communityindustry, it is hereby confirmed that they are not such to have broken the causal link between the dumping andthe injury found”, see recital 111 of the Definitive Regulation, BRL-19) and substitution  (“any substitution
effect cannot have significantly contributed to the injury suffered by the Community industry”, see recital 113 of
the Definitive Regulation, BRL-19.). In general, the EC concludes that the factors other than the dumped
imports were “"not such to have broken the causal link" (see recital 177 of the Provisional Regulation, BRL-12).
101 See Thailand – H-Beams , para 7.273.WT/DS219/R
Page E-49
the EC authorities’ reliance on data (e.g. the EC producers’ export performance), which the Brazilian
exporter could not see and verify, constituted a serious violation of the exporter’s basic right to defend
its interests, such as that covered by the first sentence of Article 6.2, Article 6.4 and Article 12, in
particular Article 12.2 of the AD Agreement.  Although the EC has now provided information
regarding the EC industry’s export figures102, this can in no way compensate for the EC’s failure to
provide such information at the time of the investigation.
ISSUE 18:  "NO TIMELY OPPORTUNITIES TO SEE ALL RELEVANT INFORMATION"
To Brazil :
132. Regarding Brazil’s claim of not being given timely opportunities to see the information
on currency conversions used in the Provisional  Regulation, does Brazil consider that it is
making a claim concerning the provisional measure applied by the European Communities?
Although the information on currency conversi ons used by the EC relates to both the
Provisional and the Definitive Regulation, Brazil’s claim concerns the EC’s definitive measures only.
133. On page 235 of its first submission, Brazil re fers to certain currency conversion tables
provided by the European Communities in the Transparency Letter.  However, the copy of the
Transparency Letter that has been provided to  the Panel (Exhibit BRL-18) contains no such
table.  Is Brazil’s reference to this document correct?
Brazil apologises: the correct reference to the currency conversion table is Exhibit BRL-16
134. On page 238, Brazil states that “the exchange  rate tables disclosed by the EC are not
providing a conversion rate for the precise date .  Moreover, the currency conversion rates used
by the EC insofar as they concerned conversions on certain pertinent dates as disclosed to Tupy
did not enable Tupy to determine the method ology applied by the EC as on those dates no
currency conversion rates were stated”.  Could Brazil clarify which tables and which precise
dates it is referring to in its statement?
The EC disclosed to the Brazilian exporter export sales included in the dumping
calculations.103  The EC also stated that it had used daily rates for the definitive calculations104, these
rates provided by the Brazilian exporter during the on-spot verification.105
The reference to ‘tables’ is to the EC’s Table “Export sales included in the dumping
calculations”.106  These figures come from the Brazilian exporter’s Tables “the Brazilian exporter's
sales to the EC to independent customers” named “ECSALUR”107 and “the Brazilian exporter's
allowances on sales to the EC to independent customers” named “ECALLUR”.108  For the example
                                                     
102 ECFS para 440.
103 See the Disclosure Preceding the Definitive Re gulation (BRL-16), the company specific findings
concerning dumping (Annex II), sub-annex 1).
104 See the Definitive Regulation (BRL-19), recital 52.
105 See the Transparency Letter (BRL-18), page 4; with regard to the daily rates see the Disclosure
Preceding the Definitive Regulation (BRL-16).
106 See the Disclosure Preceding the Provisional Regulation; Annex II, sub-annex 5 (BRL-11), page 1
of 400, 1st transaction from above; it is to be noted that the figures regarding allowances granted by the EC are
the same also in the Disclosure Preceding the Definitive Regulation (BRL-16).
107 See Tupy’s Questionnaire Response (BRL-4), Table H.3.1; page number as indicated 1, 1st
transaction from above.
108 See Tupy’s Questionnaire Response (BRL-4); page number as indicated 1, 1st transaction from
above.WT/DS219/R
Page E-50
provided in the First Submission of Brazil the date of invoice was 9 April 1998.  Finally, the exchange
rates allegedly used by the EC are enclosed in the Disclosure Preceding the Definitive Regulation.109
Brazil notes that the full paper versions of the EC’s Table “Export sales included in the
dumping calculations” and the Brazilian exporter’s Tables “ECSALUR” and “ECALLUR” are part ofthe records (in electronic format) of the case.  It is  to be noted that the EC’s inconsistent methodology
is not related to specific dates or transactions because it is horizontal in nature and covers all of the
allowances granted by the EC to the Brazilian exporter. As a practical solution, Brazil provides three
examples, which are related to transactions reflected in Brazil’s Exhibits
110.
135. Could Brazil comment on the statements in pa ra. 510 of the EC first written submission.
Was the table of daily exchange rates provided by Tupy during the verification?  Does Brazil
believe that the information provided by Tupy in  the currency exchange rate tables was used by
the investigating authorities in their currency conversions?  If  this information was the same
that was provided by Tupy, should that information have been disclosed to Tupy under
Article 6.4?  What other information regarding currency conversions does Brazil believe should
have been disclosed under Article 6.4?
Yes, the table of daily exchange rates was used by the Brazilian exporter and was provided to
the EC during the on-spot verification.  As the EC calculated the dumping margin in the exporting
country’s currency, Brazil believes that the EC’s conversion of each transaction’s turnover into
Brazilian Real was based on the currency exchange rate tables.  However, Brazil submits that theconversion of currencies with regard to allowances was not based on the said tables.  Consequently,
this information was only partially the same as provided by the Brazilian exporter to the EC.  The
missing part should have been disclosed to the Brazilian exporter under Article 6.4.
To both parties :
136. How, if at all, might Article 17.4 AD be relevant here?  Provide reasoning.
Given that the specific measure at issue in this dispute is the definitive  anti-dumping measures
imposed and applied by the EC, Article 17.4, second sentence, is not relevant.
ISSUE 19:  "NO PROPER INFORMATION ON MATTERS OF FACT AND LAW"
To Brazil :
137. Does Brazil agree that the information it  asserts should have been published under
Article 12.2 and 12.2.2 regarding Issues 3 and 9 is information regarded as confidential to
Tupy?
Brazil submits that if the information was confidential, a non-confidential summary should
have been published, and if it is not confidential, it should have been published.
To both parties :
138. What is the relationship between the substa ntive provisions regarding the determination
on dumping, injury and causation (Articles 2 and 3) and the transparency obligations under
Article 12?  Would a violation of the substantive provisions automatically constitute a violation
of the Article 12?
                                                     
109 See the Disclosure Preceding the Provisional Regulation (BRL-16).
110 See BRL-53WT/DS219/R
Page E-51
Brazil contends that the substantive provisions, regarding the determination of dumping,
injury and causation, and the more procedural ones, concerning the transparency obligation in
Article 12 of the AD Agreement, are independent provisions.  This means that there can be a violation
of Article 12 without any infringement of a substa ntive provision.  Similarly, a violation of the
substantive provisions does not automatically constitutes a violation of Article 12.  On the contrary, aviolation of a substantive provision would render recourse to Article 12 pointless.  Indeed, as the
Panel in the EC – Bed Linen report puts it: ‘a notice may adequately explain the determination that
was made, but if the determination was substantively inconsistent with the relevant legal obligations,
the adequacy of the notice is meaningless’.
111
139. What is the scope of Article 12.2 and 12.2.2?  Do these provisions cover only the public
notices preliminary and final determinations, or do they also cover other documents in theinvestigation, i.e. disclosure documents and transparency letters?  Can the disclosure documents
and transparency letters be considered as a "separate report" under Article 12.2 and 12.2.2?
Brazil is of the view that Articles 12.2 and 12.2.2 of the AD Agreement only cover the public
notices of preliminary and final determinations.  However, it is conceivable that these public noticesrefer to other documents in the investigation that can be considered ‘separate reports’ within the
meaning of Article 12.  Nevertheless, footnote 23 is clear on a document that can be described as a
‘separate report’.  A separate report has to be ‘readily available to the public’.  Both disclosure
documents and transparency letters are documents submitted to parties only.  They are not available to
the public. In conclusion, disclosure documents and transparency letters cannot be considered‘separate reports’.
140. Do the parties believe that clerical errors in the public notices of preliminary or final
determinations may constitute grounds for a violation of Article 12.2 and 12.2.2?
Generally, Brazil does not believe that clerical errors in themselves constitute adequate
grounds for a violation of Articles 12.2 and 12.2.2 of the AD Agreement.  However, where such
errors prevent interested parties from properly being able to defend their rights, a violation of
Articles 12.2 and/or 12.2.2 should be recognised.
141. What is the relationship between Articles 12.2 and 12.2.2 and the provisions concerning
the protection of confidential information in Article 6.5?
According to Article 6.5 of the AD Agreement, confidential information ‘shall not be
disclosed without permission of the party submitting it’.  Considering that Article 6 applies to
evidence submitted throughout the whole investigation process, Brazil considers that Article 6 also
applies to information used by the investigating authorities to reach a provisional or finaldetermination.  Consequently, when issuing a public notice of final determination or making a
separate report available to the public under Article 12.2 of the AD Agreement, investigating
authorities have to respect requests for confidentia lity made by the defending party in conformity with
Article 6.5 of the AD Agreement.  This is confirmed by the Argentina – Floor Tiles report in which
the Panel stated: ‘the transparency requirement which obligates the authority to explain itsdetermination in a public notice is subject to the need to have regard to the requirement for the
protection of confidential information of Article 6.5 of the AD Agreement.  Confidentiality of the
information submitted therefore limits the manner in which the authority explains its decision and
supports its determination in a public notice’.
112
                                                     
111 See ‘ EC –Bed Linen , para 6.259.
112 ‘Argentina – Tiles , para 6.36.WT/DS219/R
Page E-52
142. What criteria may be relevant in deciding which issues of fact and law can be considered
“material by the investigating authorities” under Article 12.2?
Brazil believes that, in order to determine the criteria relevant in deciding which issues of fact
and law can be considered ‘material’, the dictionary definition should serve as a starting point.‘Material’ is defined by the Concise Oxford Dictionary as ‘important, essential, relevant’.
Consequently, ‘material’ issues are, at the very le ast, issues important for the other party and for the
public to understand how the investigating authorit ies made the preliminary or final determination.
OTHER
To the EC:
143. Cold the EC clarify the me aning of the Article 11.3 of the EC Basic Regulation on
whether the exporter has the right to have a review or has the right to request  a review?
144. Can the EC confirm that if Tupy has reque sted a review within the year following the
imposition of the anti-dumping duties the Commission would have exercised discretion on the
granting of such a request?  Also, if the reque st had been made after the year following the
imposition of the anti-dumping duty would the Commission have automatically granted the
request?
To Brazil:
145. Could Brazil comment on whether the Panel would be creating a “precedent” by
admitting Exhibits BRL-47-52 containing information that the EC alleges was not in the recordof the underlying AD investigation?
Brazil understands this question in the context of Article 17.5(ii) of the AD Agreement, which
requires a panel to examine the matter before it upon “the facts made available in conformity with
appropriate domestic procedures to the authorities of the importing Member”.  Brazil comments that
the Panel would certainly not be creating a “precedent” by admitting Exhibits BRL-47 to 52. Brazil
observes that although these Exhibits have not been presented as such to the EC at the time of theanti-dumping investigation (Brazil does not even know whether such Internet information was
available in that form at all at the time), nonetheless, the facts contained in these Exhibits have clearly
been made available by the Brazilian exporter and by others, on several occasions, to the EC during
the investigation.
Brazil recalls the Bed linen Panel Report and the confirmation made there whereby “the form
of the document … does not preclude [the Panel] from considering its substance, which comprises
facts made available to the investigating authority during the investigation.”
113
Brazil observes that it is not asking the Panel to conduct a de novo  review of the EC’s own
investigation.  Rather, the primary purpose of the new Exhibits in this respect is to support Brazil’s
request that the Panel assesses whether the EC has properly examined all the relevant facts which the
EC had before it at the time of the anti-dumping investigation, and whether the EC had provided an
adequate explanation as to how the facts as a whole support the determination it had made.  It would
then be for the Panel to further establish whether that determination was consistent with theobligations on the EC
114, primarily those which result from Article VI of the GATT 1994 and the AD
Agreement (Brazil refers in particular to the EC’s obligations under Articles 3.1, 3.4 and 3.5).
                                                     
113 See ‘EC – Bed Linen’ , para 6.43.
114 In line with United States - Restrictions on Imports of Cotton and Man-made Fibre Underwear ,
WT/DS24/R of 8 November 1996, para.7.WT/DS219/R
Page E-53
Brazil confirms that this Panel is not requested to consider the new Exhibits for any purpose
other than in order to determine whether, on the basis of the facts made available to it during the
investigation, the EC has properly discharged its obligations under the above-mentioned provisions of
the GATT 1994 and the AD Agreement. How can the Panel properly assess whether the facts madeavailable to (and ignored by) the EC at the time of the anti-dumping investigation were indeed correct
and have truly reflected the description made by the Brazilian exporter without being able to see other
sources of information regarding the same facts which prove (or disprove) it?  Brazil notes that “the
Panel’s function should be to assess objectively the review conducted by the national investigating
authority…”
115  The Panel’s role is “to review the consistency of a determination by the national
investigating authority imposing a restriction under the relevant provision of the relevant WTO legal
instrument.”116  The Panel should therefore allow Exhibits 47 to 52 to be considered in order to make
that assessment.
146. If the information in Brazil Exhibits BRL-47-52 had been before the investigating
authority, would it have had the effect of alte ring the determination of the EC authorities?
Brazil cannot see how the new Exhibits, which are mere Web Page printouts, would have
altered the EC authorities’ relevant determinations, whereas the concrete evidence and other solid
leads (i.e. the facts) which Tupy made available to the EC during the investigation117 have not yielded
such results.  Brazil’s view in this regard is that the EC authorities were most probably uninterested in
considering any kind of information, notwithstanding its source, nature or probative value, whichcould have made them change their predetermined position.
147. If Brazil is of the view that the information submitted by Tupy in the course of the
investigation concerning outsourcing and links the EC industry may have with producers located in
countries not subject to the investigation was “sufficient”, why does Brazil consider that it isnecessary to submit Exhibits BRL-47-52 in these Panel proceedings?
Brazil recalls the answer it gave to the Panel’s question 145 above.  Brazil notes that by
presenting the new Exhibits it was not seeking to add any facts to that which the EC already had
before it.  The Panel is not requested to consider the new Exhibits for any purpose other than in order
to inform itself of those facts provided to the EC in the course of the investigation.  This should allow
the Panel to determine whether, on the basis of the facts made available to the EC during theinvestigation, the EC had properly discharged its obligations under Article VI of the GATT 1994 and
the AD Agreement, particularly under Articles 3.1, 3.4 and 3.5 so as to make its injury determination
on the basis of “positive evidence” and following “an objective examination” of the relevant facts.
Moreover, this should also allow the Panel to determine whether the EC’s establishment of the facts
was proper and its evaluation of these facts was unbiased and objective as required by Article 17.6(i).
Brazil observes that the factual information contained in the new Exhibits confirm that the EC
could have easily verified the factual information that Tupy (and others) made available to it at the
time.
118  For example, how could the EC not find in the accounts of the EC producers concerned
                                                     
115 See ‘ US – Anti-Dumping Measures on Certain Hot-Rolled Steel Products from Japan, Panel
Report’ , WT/DS184/R of 28 February 2001, para. 7.6 (unchanged by ‘US-Hot-Rolled Steel AB Report’, on the
relation between Article 11 DSU and Article 17.6 AD see paras 50 to 62 in the Appellate Body Report).
116 Ibid.
117 For a description of and references to statements and documents made available by Tupy to the EC
during the investigation see BFS, inter alia , under ‘ d) Imports from other Third Countries ’ and ‘ e)
Outsourcing’ , at paras 765 to 801. Brazil recalls, for example, that these documents also included concrete
evidence in the form of copies of official circular le tters by which Atusa offered the product concerned for sale
to customers in the EC while explicitly stating that it was produced by its own plant (Berg Montana) in Bulgaria(see these copies in Annex II and Annex III to Tupy’s Fourth Submission, BRL-13).
118 See BFS para 68 and more generally also paras 61 to 67 and 69 to 71.WT/DS219/R
Page E-54
(Atusa, Woeste and Georg Fischer), which it was under a duty to verify in the investigation, any link
to their investments in and/or preferred purchases from the foreign producers specifically named by
Tupy?  Why did the EC authorities not require these producers to answer the kind of questions put to
the EC by the Brazilian exporter?  Have the EC authorities for example, sought to obtain sworn
statements from these EC producers to refute Tupy’s contentions?  Did the EC seek to obtaininformation from the Bulgarian authorities
119 on possible investments by Atusa in Bulgaria?  Did the
EC try to obtain information from its own Services  dealing with investment promotion in Bulgaria
(e.g. under the EU’s ‘Phare’ programme) or in Egypt (e.g. under the EU’s ‘Meda’ programme)
regarding the investments by EC producers in the pipe-fittings sectors in these two non-EC
countries?120  Brazil recalls that none of these simple steps have been mentioned on the record before
the Panel as steps taken by the EC.
148. With respect to Issues 6, 7, 8 and 10, which adjustments were clearly requested by Tupy
in its Questionnaire Response?  Which adjustments were identified first by the EC investigating
authorities? Indicate the relevant part s of the record of the investigation.
With regard to export sales, the Brazilian exporter requested allowances for differences in
transportation, insurance, handling, loading and ancill ary costs; in the cost of any credit granted for
the sales; in the direct costs of providing warranties and guarantees; and in commissions paid.121
Regarding domestic sales it requested allowances for the differences in physical characteristics; in
import charges or indirect taxes (i.e. the IPI Premium Credit); in the level of trade; in packaging costs;
in the direct costs of providing warranties, guarantees, technical assistance and services (after-salescosts); in commissions paid; and other factors (promotion and advertising as well as financial costs for
keeping stock).
122  Moreover, the Brazilian exporter, although not claiming a separate adjustment,
identified in its Reply to the Deficiency Letter the issue of “PIS/COFINS of 5.37 per cent over
input”.123
To both parties:
149. Are WTO dispute settlement consultations relevant in determining whether or not a
claim falls within a panel’s terms of reference?  Why or why not?  In general, is there any kind
of verifiable record kept of WTO dispute settle ment consultations?  Is there any such record of
the consultations in this dispute? Please  cite any relevant material in responding.
Brazil emphasises the importance of consultations as part of the WTO dispute settlement
system under Article 4 of the DSU and believes that consultations are relevant in determining whether
or not a claim falls within a panel’s terms of reference.  Brazil recalls the findings in ‘ Korea –
Alcoholic Beverages’  where the Panel stated that “it would seriously hamper the dispute settlement
process if the information acquired during the consultations could not subsequently be used by anyparty in the ensuing proceedings”.
124
                                                     
119 For example, from the Bulgarian investment and/or  privatisation agencies, from which websites the
information in Exhibits BRL 49 and 50 was taken.
120 It is worth noting that Exhibits 47 and 48 which provide that information for Bulgaria emanate from
a semi-official Website (Bulgarian Economic Forum) with close links to the Phare Programme. Exhibit 52which provides that information with regard to Egypt,  states that the project is promoted by the ‘Euro-
Mediterranean Partnership,’ which is sponsored by the EC and of which the EC is a party).
121 See Tupy’s Questionnaire Response (BRL-4), Section G-1.
122 See Tupy’s Questionnaire Response (BRL-4), Section G-2; see also the First Submission of Tupy
(BRL-5), para 1.3.
123 See Tupy’s Reply to the Deficiency Letter (BRL-7).
124 Korea – Taxes on Alcoholic Beverages , Panel Report, WT/DS75/R, WT/DS84/R, , ‘Korea –
Alcoholic Beverages’, para 10.23.WT/DS219/R
Page E-55
As stated by the Appellate Body in ‘ EC – Bananas’125, the panel’s terms of reference are
important for two reasons.  Firstly, the terms of reference establish the jurisdiction of the panel.
Secondly, they fulfil an important due process objective. It is precisely this second reason which
enables Brazil to claim that consultations are relevant in the determination of the scope of the panel’s
terms of reference.  Brazil notes that what matters in this respect is that the defending party receivesadequate notice of claims made by the complainant.  This interpretation is also supported by the
Appellate Body’s findings in Korea – Dairy Safeguards  with regard to “attendant circumstances”.
126
However, Brazil admits that, in general, there is  indeed no formal requirement for an official
record of dispute settlement consultations.  There is no such record in the present dispute, although
Brazil does have its own record of the consultation meeting with the EC in the present case and has
offered to disclose it if the Panel deems necessary.
150. In this case, was the information relating to  the examination by the EC authorities of the
issue of outsourcing and links the EC industry may have with producers located in countries not
subject to the investigation “confidential” for the purposes of the EC investigation?
No. Although contract terms and prices/quantities may have been deemed confidential, there
is no reason why the links themselves should be characterised as such.  Brazil wonders why such
factual information, which was widely known in the market and also made available to the EC during
the anti-dumping investigation could be viewed as “c onfidential”.  In any event, Brazil notes that it is
unaware of any non-confidential summary of that information which was made available to otherparties in the original investigation or at any time thereafter.
151. Assume that the comp laining party points to informat ion that it submitted in the
investigation and that is on the record of the inve stigation.  The complaining party alleges that it
does not have access to any additional informatio n on the issue, nor to any indication that the
investigating authority examined this informatio n or sought additional information.  How can
the complaining party (and the Panel) assess whether and to what extent the investigating
authority examined the information?
It is difficult for Brazil to assess whether and if so to what extent the investigating authority
really examined the issue of outsourcing and the links EC producers have with producers in other
countries.  However, as Brazil stated during the first oral hearing, the EC files contained all the basicfactual information on issues relating to outsourcing and those links which Tupy and other parties
made available to the EC during the investigation.  Moreover, Brazil managed to find extra
information on the Internet very easily which also confirms that the EC could have had easy access to
sources, including EC’s own sources and sources linked to the EC
127, had the EC really wanted
properly to examine the above-mentioned factual information which had been made available to it.  Inspite of this information, Brazil does not see anything in the records
128 that shows that the EC has
made any meaningful inquiry concerning these issues.
                                                     
125 EC – Regime for the Importation, Sale and Distribution of Bananas , Appellate Body Report,
WT/DS27/AB/R, para. 142.
126 See Korea – Definitive Safeguard Measure on Imports of Certain Dairy Products , WT/DS98/AB/R,
paras 123-124.
127 See Brazil’s answer to the Panel’s question 147 including footnotes 119, 120 and 120 there.
128 Not even in a summarised form if the in formation is to be considered confidential.WT/DS219/R
Page E-56
ANNEX E-2
REPLIES OF BRAZIL TO QUESTIONS OF THE
EUROPEAN COMMUNITIES – FIRST MEETING
Issue 1
1. Could Brazil confirm whether EC officials raised the possibility of an undertaking
during the meetings with Brazilian trade representatives described in paragraphs 38 and 39 ofthe EC’s First Submission?
The possibility of a price undertaking was raised in the course of a meeting between Mr Lamy
and a Brazilian governmental delegation.  However, Brazil observes that this case was a matter which
the Brazilian side had put on the agenda for the meeting.
2. In particular, could Brazil confirm that at the meeting of 23 March 2000 Commissioner
Lamy indicated that the best solution would be a price undertaking?
This possibility was never discussed in concrete terms.  In particular, had the EC been ready
to effectively examine the possibility of an undertaking, it would have addressed the Brazilian
exporter directly.  Indeed, Brazil is of the view that the obligation to ‘explore the possibilities ofconstructive remedies’ is an obligation relating to a conduct which should be directed towards
exporters rather than towards WTO Members, especially with regard to price undertaking.
3. What was the response of the Brazilian au thorities to the suggestions regarding the
possibility of an undertaking made by Commissioner Lamy and other EC officials during theabove mentioned meetings?
Brazil has no detailed reports of the conversations on this matter.
4. Was Tupy interested in an undertaking? If so, why did Tupy not offer an undertaking?
The EC would have known had it contacted Tupy on a possibility of a price undertaking.
Brazil refers to its answer to the Panel’s question Nº 8, where it submitted that Article 15
basically reverses the general order in Article 8 so that, where the exporting country is a developingcountry it is for the authorities in the importing country to take the initiative and approach the
exporter.  Brazil further recalls that in any event, Article 8.5 of the AD Agreement makes clear that
“the fact that exporters do not offer such undertakings, or do not accept an invitation to do so, shall in
no way prejudice the consideration of the case”.  Anyhow, Brazil recalls that the EC has never made
such an invitation to Tupy.
Issue 2
1
5. Assume that on January 1999 the Real had depreciated vis-à-vis the Euro by 42 per
cent,
                                                     
1 To avoid any doubt, Brazil assumes that the EC’s questions 5 to 7 in fact relate to matters covered by
Issue 3  in Brazil’s First Written Submission.WT/DS219/R
Page E-57
(a) would the EC authorities have been entitled to calculate Tupy’s dumping margin
on the basis of data for the portion of the period-of-investigation (POI) after the
re-evaluation?
Brazil notes the hypothetical nature of the EC’s question and observes that such situations
should be examined on a case-by-case basis in view of the prevailing facts and circumstances.
(b) quid if the re-evaluation had taken place after the end of the POI but before the
imposition of measures? Could the EC have lowered the weighted average
export price in Reals for the POI by 42  per cent in order to calculate Tupy’s
dumping margin?
Brazil refers the EC to Brazil’s answer to the previous question.
6. How did the Brazilian anti-dumping authorit ies address the effects of the January 1999
devaluation in its own investigations? Specifically,
(a) in the case of investigations where the POI included January 1999, were the
effects of the dumped imports on  the prices of the domestic industry assessed
exclusively on the basis of data for the period after the devaluation?
(b) in the case of ongoing investigations where the POI ended before January 1999,
but the measures were imposed after that date, was the injury determination
based on data not included in the POI?
(c) have the Brazilian authorities reviewed ex officio all anti-dumping measures
imposed prior to January 1999 in order to establish whether imports are stillcausing injury?
With regard to all the EC’s questions above, Brazil reminds the EC of the fundamental
difference between the Brazilian law’s approaches to reviews, as foreseen by Article 11 of the AD
Agreement, and that of the EC’s, which differs from that of Article 11.  Unlike the position under the
EC’s Basic Regulation, the Brazilian rules do not impose any time limit to bar interested parties from
requesting the authorities to initiate a review and to examine whether the continued imposition of theduty is necessary to offset dumping and/or whether the injury would be likely to continue or recur if
the duty were removed or varied.
Unlike the EC, Brazil will always review the need for the continued imposition of the duty
where warranted, i.e. where positive information substantiating the need for a review is being broughtto the Brazilian authorities’ attention.  Whether such information is presented to the Brazilian
authorities by an interested party or is otherwise made available, the Brazilian authorities will always
initiate a review as long as it is warranted.  Unlike the legal position in the EC, no other condition
regarding timing or otherwise will be put by the Brazilian authorities to allow for such a review.
Finally, Brazil draws the EC’s attention to the fact that no interested party has so far requested
the Brazilian authorities to initiate a review on the ground of changed circumstances (Article 11.2
AD) in relation to the devaluation of the Brazilian currency.
7. Is Tupy interested in a review? If so, why has Tupy not asked for a review?
Brazil understands that Tupy would have indeed been very keen on having a review of the
need for the continued imposition of the duty imposed  by the EC, as a ‘second-best’ solution to its
main argument against the duty as such, in line with the third alternative option that should have been
used by the EC as stated in Brazil’s First Submission under Issue 3.WT/DS219/R
Page E-58
In any event, however, Brazil understands that should a review been an option open to it
under EC law, Brazil assumes that Tupy would ha ve welcomed an EC review which would have
looked into all the aspects of the original investigation, i.e. dumping, injury and causality.  Brazil
understands that, Tupy’s position even during the EC  investigation has been that the EC industry has
suffered no injury at all and obviously not as a result of Tupy’s imports.
With regard to the second part of the EC’s question, Brazil respectfully refers the EC further
to Brazil’s Second Submission, where it reiterated th at Tupy has not asked for a review as it was
legally time-barred from doing that.  Brazil recalls Article 11.3 of the EC’s Basic Regulation, which
does not give exporters the right to request a review unless “a reasonable period of time of at least one
year has elapsed since the imposition of the definitive measure”.WT/DS219/R
Page E-59
ANNEX E-3
REPLIES OF THE EUROPEAN COMMUNITIES TO
QUESTIONS OF THE PANEL - FIRST MEETING
14 May 2002
Issue 1: "No special regard to Brazil as a developing country", "no constructive remedies
explored"
Question 1
With respect to Brazil's allegations under Article 15 AD, would the European
Communities have conducted itself in the same manner in an anti-dumping investigation
involving a developed country Member?  Is this re levant here? If not, what is the meaning and
legal significance of the phrase "special regard" in the first sentence of Article 15?
1. As a general rule, the EC authorities would not act in the same manner in the application of
anti-dumping measures involving a developed country Member.  Indeed, no similar steps were taken
in regard to Japan, the sole undeniably-developed country concerned by the same proceedings.
2. The Panel will be aware of the argument that the first sentence of Article 15 imposes no legal
obligation on Members (see paragraph 31 of the EC’s First Submission).  The EC is of the view that,even if there was a legal obligation, it would be sa tisfied by complying with the obligation in the
second sentence.  Firstly, the period envisaged by the phrase ‘ before  applying anti-dumping duties’
falls within that covered by the phrase ‘when considering the application of anti-dumping duties’.
Secondly, exploring possibilities of ‘constructive remedies’ is a way of giving ‘special regard’ to the
special situation of developing country Members.  Both these interpretations accord with the ordinarymeaning of the terms of the Anti-Dumping Agreement.  Nor is there anything in the context of these
provisions, or of the Agreement’s object and purpose (as far as that can be ascertained), to indicate
any other meaning.  The EC believes that this limited statement of the ‘meaning and legal significance
of the phrase “special regard” is all that is required to decide the present case, and is reluctant to
venture a more general definition.
Question 6
What legal obligations does Article 15 AD impose? Could Brazil comment on the
European Communities statement in paragraph 31 of its first written submission that "…the
first sentence [of Article 15] imposes no legal ob ligation"?  If there is more than one obligation
in Article 15, what is the relationship, if any, be tween these obligations-- i.e. are they separate,
independent obligations, or are they interrelated and dependent?  Explain your response, with
reference to the customary rules of interpretati on of public international law and any relevant
material.
3. In its answer to Question 1 the EC has argued that in complying with the obligation in the
second sentence of Article 15 a Member will also comply with any obligation that arises from the
first.  This interpretation was justified in accordan ce with the rules stated in the Vienna Convention.WT/DS219/R
Page E-60
Question 7
Is our understanding correct that the European Communities found that the level of
dumping margins were in all cases lower than th e injury threshold and that the level of duty
was thus set at the level of the dumping ma rgins found?  Comment, with reference to the
obligation(s) in Article 15 AD and the relevant portions of the record.
4. The EC applies the ‘lesser duty’ rule whereby anti-dumping duties are set at whichever is
lower of the levels of the dumping margin and the injury margin.
5. Applying this principle, the duties that were imposed in the malleable fittings proceedings
were set on the basis of the dumping margin in the case of all exporting countries except Japan.
Question 8
Under Article 15 AD, is it for the Member imposing the measure to "propose"
constructive remedies"? Provide the basis for your re sponse.  How, if at all, does this relate to
the obligations in Article 8 (and any other provisions) of the AD Agreement?  How, by whom
and when should a price undertaking be sought/accepted for the purposes of Article 15 AD?
6. The EC has examined the obligations in Article 15 at paragraph 34 of its First Submission.
The second sentence of Article 15 says that ‘Possibilities of constructive remedies provided for by thisAgreement shall be explored before applying anti-dumping duties …’.  Brazil has said that this
imposes an obligation to ‘propose’ constructive remedies.  However, this word is not used in the Anti-
Dumping Agreement, and the ordinary meanings of the terms ‘propose’ and ‘explore the possibilities
of’ constructive remedies are certainly not identical.  Whereas a proposal of an undertaking, for
example, might amount to ‘exploring the possibilities etc., one can envisage various ways in which aMember might do the latter without making a proposal.  The panel in the Bed Linen  case said that
‘"exploration" of possibilities must be actively undertaken by the developed country authorities with a
willingness to reach a positive outcome’, but th at ‘Article 15 imposes no obligation to actually
provide or accept any constructive remedy that may be identified and/or offered.’
1 emphasised the
need for positive action, but never suggested that the Member must propose an undertaking or any
other particular course of action.
7. Moreover, Article 8.2 of the Anti-Dumping Agreement speaks of undertakings being ‘sought
or accepted from exporters’, which is language that envisages that proposals of undertakings are made
by exporters rather than by importing Members.  On the other hand, this provision also envisages that
Members may seek undertakings.  Article 8 places no obligation on them to do so, but to seek an
undertaking would, in the ordinary meaning of the words, constitute a way of exploring thepossibilities of constructive remedies.  In the present case the EC on several occasions indicated that it
saw an undertaking as the best outcome of the proceedings. Its actions can reasonably be described as
seeking an undertaking.
Question 9
Do the parties agree that the obligation(s) in  Article 15 AD arise(s) only with reference
to the imposition of definitive anti-dumping measures at the end of the investigative process?
Refer to any relevant material in responding.
                                                     
1 Panel Report, European Communities – Anti-Dumping Duties on Imports of Cotton-type Bedlinen
from India (“European Communities – Bedlinen”), WT/DS141/R, adopted 12 March 2001, as modified by theAppellate Body Report, WT/DS141/AB/R, para. 6.233.WT/DS219/R
Page E-61
8. The EC endorses the following vi ews expressed by the panel in the Bed Linen  case2 on this
issue:
6.231 In this regard, we note Article 1 of the AD Agreement, which provides that:
"An anti-dumping measure shall be applied only under the circumstances provided for
in Article VI of GATT 1994 and pursuant to investigations initiated and conducted in
accordance with the provisions of this Agreement." (footnote omitted).
In our view, this implies that the phrase "before applying anti-dumping duties" in
Article 15  means before the application of definitive anti-dumping measures.
Looking at the whole of the AD Agreement, we consider that the term "provisional
measures" is consistently used where the intention is to refer to measures imposed
before the end of the investigative process.  Indeed, in our view, the AD Agreementclearly distinguishes between provisional measures and anti-dumping duties, which
term consistently refers to definitive measures.  We find no instance in the Agreement
where the term "anti-dumping duties" is used in a context in which it can reasonably
be understood to refer to provisional measures.  Thus, in our view, the ordinary
meaning of the term "anti-dumping duties" in Article 15 is clear - it refers to the
imposition of definitive anti-dumping measures at the end of the investigative
process.
6.232 Consideration of practical elements reinforces this conclusion.  Provisional
measures are based on a preliminary determination of dumping, injury, and causal
link.  While it is certainly permitted, and may be in a foreign producer's or exporter'sinterest to offer or enter into an undertaking at this stage of the proceeding, we do not
consider that Article 15 can be understood to require  developed country Members to
explore the possibilities of price undertakings prior to imposition of provisional
measures.  In addition to the fact that such exploration may result in delay or
distraction from the continuation of the investigation, in some cases, a priceundertaking based on the preliminary determination of dumping could be subject to
revision in light of the final determination of dumping.  However, unlike a
provisional duty or security, which must, under Article 10.3, be refunded or released
in the event the final dumping margin is lower than the preliminarily calculated
margin (as is frequently the case), a "provisional" price undertaking could not be
retroactively revised.  We do not consider that an interpretation of Article 15 which
could, in some cases, have negative effects on the very parties it is intended tobenefit, producers and exporters in developing countries, is required.
Question 10
What do the parties understand to constitute "constructive remedies" within the
meaning of Article 15 of the AD Agreement?  Please refer to any relevant material.
9. The Bed Linen  panel came to the conclusion that ‘constructive remedies’ include price
undertakings and reductions in duty levels3 The EC agrees with that conclusion.  The EC authorities
complied with the requirements of Article 15 by exploring the possibilities of a price undertaking.  In
view of that, this Panel need not reach the issue of whether there may be other constructive remedies
in addition to those identified by the Bed Linen  panel
                                                     
2 Ibid.
3 Ibid. paras. 6.228 and 6.229.WT/DS219/R
Page E-62
Question 11
Is there an obligation under Article 15 AD to "communicate" to developing country
Members that an investigating authority is expl oring possibilities of constructive remedies?
10. The EC sees no reason in theory why Article 15 requires that fact to be communicated to
developing country Members.  However, when th e remedy being contemplated is an undertaking
communicating the fact to the Member would be a highly practical means of exploring it.
Question 12
What factors should guide a panel’s considerat ion as to whether the imposition of anti-
dumping measures would affect Brazil’s “essential interests” within the meaning of Article 15
AD?  Do the parties agree with the statement of the United States in its third party written
submission (para. 14) that the term “essential” implies a very high standard for the level of
national interest which the developing country must demonstrate would be affected by anti-
dumping duties?
11. An ‘ essential interest’ is one that is considerably more important than a mere ‘interest’.  The
EC does not find that the notion of a ‘high standard’ adds significantly to the term ‘essential’ (except
perhaps by emphasising where the burden of proof lies) .  It is unlikely that a country would have more
than a handful of essential interests.  The measurement of the importance of the interest would beprimarily economic.  The size of the industry relative  to the whole economy of the country would be a
major criterion.  However, it is possible that a small industry might be essential if other industries
depended upon it.  In the present case, where the industry comprises a small part of a single large
company, Brazil would have to show firstly that th e company was an essential interest of the country,
and secondly that the company’s viability was put in doubt by the action against the part of itsactivities that comprised the industry.
12. Since Article 15 is an exception to the rules of the Anti-Dumping Agreement the onus lies on
the developing Member concerned to prove that its invocation of the exception is justified.
Question 13
We note the section on "Undertakings" in th e Definitive Regulation does not refer to
Tupy/Brazil. Comment.
13. It is the practice of the EC to refer to undertakings in its anti-dumping regulations only in
regard to those companies that have offered one (whether or not it has been accepted).
Question 15
Could Brazil elaborate upon its assertion on p. 32 of its first written submission that:
"…the Application did not contain a description of the volume and value of
production of the like product accounted for by the Applicants" and that "[t]he
Applicants provided information in respect of which the volume and value of
production of the like product accounted for by them only insofar as the same
could be broadly and rather inaccurately deduced from figures provided inrespect of total consumption, price undercutting calculations and the volume of
imports as a whole entering the EC."
Could the European Communities comment on this argument as it currently stands?WT/DS219/R
Page E-63
14. In so far as the EC understands Brazil’s argume nt, the EC believes that an answer is given in
its First Submission.4
Issue 2: "Inappropriate application"
Question 16
Brazil states:  "…the evidence provided by the Applicant did not comply with the
requirements of Article 5.3" (Brazil's oral statement at the first Panel meeting, para. 31).
Comment.
15. In this part of its Oral Statement Brazil adopts the view (presented by the EC at paragraph 48
of its First Submission) that a failure of the applicant to meet the criteria of Article 5.2 can only be
challenged by alleging a breach of Article 5.3 arising from a failure of a Member’s authorities to
properly check whether the criteria have been met.  However, the basis for Brazil’s claim remains the
assertion that the criteria were not met.  As the EC observed in paragraph 49 of its First Submission,
even if this were true, it would not follow necessarily that the EC had infringed Article 5.3.  In anyevent, the EC demonstrates in its First Submission that the criteria were met.
Question 17
What is the relationship between: (i) Articl es 5.2 and 5.3; (ii) Articles 5.2 and 5.8; (iii)
Articles 5.2 and 6.2 -- would a violation of one ne cessarily constitute a violation of the other?
Explain with reference to any relevant material.
16. The EC has addressed the first issue in its answ er to the previous question and in parts of its
First Submission there referred to.
17. Article 5.8 refers to the existence of sufficient evidence.  This phrase is also found in
Article 5.3.  This level of evidence it is to be distinguished from that defined in Article 5.2, which is
to be presented by the Applicant.  Consequently, there is no direct link between Article 5.2 and
Article 5.8.  In any event, as the EC explains in paragraph 46 of its First Submission, the notion of
‘violation’ should not be applied to Article 5.2 in the same way that it is applied to other provisions of
the Anti-Dumping Agreement.
18. Assuming that the obligation in the first sentence of Article 6.2 is a general one rather than
one limited to the subject matter of the rest of the paragraph,5 its scope is nevertheless restricted to
procedural rights associated with the notions of ‘fair hearing’ and ‘due process’.  Article 5.2
effectively confers certain rights on the domestic indus try, which have consequent implications for the
rights referred to in Article 6.2.  How these rights would be enforced is problematic since other
Members are unlikely to pursue them through the WTO dispute-settlement process.  Fortunately, this
issue is academic in the present context, when only the rights of exporters are relevant.  Since at the
initiation stage of proceedings exporters have no role, and even no right to know, of the investigation,
there can be no scope for the application of Article 6.2 in their regard.
                                                     
4 At paras. 51 and 58.
5 One panel has taken this view: Panel Report, Guatemala – Definitive Anti-Dumping Measures on
Portland Cement from Mexico (“Guatemala – Cement II”) , WT/DS156/R, adopted 17 November 2000, para.
8.162, and footnote 849.WT/DS219/R
Page E-64
Question 18
What is the relationship between: (i) Articles 5.3 and 5.8; (ii) 5.3 and 6.2 -- -- would a
violation of one necessarily constitute a violation of the other? Explain with reference to any
relevant material.
19. If the determination referred to in Article 5.3 results in the authorities concluding that there is
insufficient evidence of either dumping or of injury to justify initiation this would also amount to their
being ‘satisfied that there is not sufficient evidence of either dumping or of injury to justify
proceeding with the case’ in terms of Article 5.8.  They should therefore reject the application.
Consequently, if they initiated the investigation despite reading such a negative conclusion they
would not only be infringing Article 5.3 but would also be failing to reject the application as requiredby Article 5.8.
20. The position of Article 5.3 in regard to Article 6.2 is the same as that of Article 5.2 described
in the previous answer.
Issue 3: "No need to impose measures"
Question 20
According to Brazil, the first "explicit consideration" by the European Communities of
the currency devaluation was on 20 July 2000 in the Disclosure Preceding the Definitive
Regulation.  Does the European Communities agree?  Is this relevant?  Why or why not?
21. The first explicit reference by the EC authorities to the currency devaluation was in its letter
of 30 May 2000,6 which was as a reaction to Tupy’s letter of 30 March 2000,7 where Tupy referred
for the first time during the proceeding to the devaluation.  Tupy said that ‘had the Commission
considered this fundamental change, it would not have found a dumping margin’ .  This imprecise
argument was not supported by any evidence.
22. Tupy raised the same argument during the hearing of 29 May 2000.8  The argument was again
vague and not supported by any evidence.  The EC Commission requested Tupy to clarify itsargument.  In its letter of 30 May 2000,
9 Tupy said ‘ it is clear that the normal value had fallen
dramatically to the point that no dumping could reasonably be established’ .  Again, this argument
was not supported by any evidence.
23. The EC’s explicit consideration of devaluation had begun well before these dates.  Already in
its pre-verification letter of 7 September 1999,10 the EC has requested Tupy to prepare a table giving
the official exchange rates of a number of currencies used by Tupy against the Real.  This is not the
EC’s normal practice, but was done in this case because the pre-verification preparation had shown
the use by Tupy of strongly varying exchange rates.  During the on-the-spot verification, Tupy was
asked to explain in detail how its foreign currencies were converted into Real.
24. The timing of the EC’s consideration of devaluation is significant only in regard to whether
that consideration satisfied the requirements of th e Agreement.  In this case the facts relating to
                                                     
6 Annex I, page 14, ‘g. currency conversions’ and the same document Annex II, page 6, first paragraph,
BRL-16.
7 BRL-13, page 37, paragraph 16.
8 BRL-14, point 8.
9 BRL-15.
10 BRL-8, page 3.WT/DS219/R
Page E-65
devaluation were properly established and evaluated.  The references to devaluation in
correspondence with Tupy at a late stage in the investigation arose in response to comments made at
that time by Tupy.
Articles 11.1 and 11.2 AD
Question 26
Does the European Communities believe that the price comparison at the end of the IP
revealed no, or declining, differences between export price and normal value at the end of the
period? Explain the significance this has for the establishment of the margin of dumping in the
IP as a whole.  Provide the legal basis for your response, citing any relevant material.
25. Because the EC has data for Tupy’s individual export sales during the IP it can say that,
measured in Real, export prices  declined following devaluation.  However, it is not possible to
identify normal values  for particular parts of the IP because the EC’s methodology is based on a
consideration of the whole of that period.  To calculate normal values for particular parts of the IPwould require reprocessing the basic data.  Furthermore, a recalculation of this kind would conflict
with the basic rationale of the EC’s calculation of the dumping margin, which itself reflects the
obligations of Article 2.4.2 AD.  In this respect the EC agrees with the view expressed by the Panel in
United States – Steel Plate, Sheet and Strip
11 that the normal time period for comparison is the whole
of the IP.
26. It should also be remembered that Tupy’s prices at the end of the IP, immediately following
devaluation, are no reliable indicator of its prices in the medium term.
Question 33
What is the meaning of the phrase "where  warranted" in Article 11.2 AD? Provide the
legal basis for your answer.  Assuming arguendo that initiation of a review is “warranted”, is
there a legal obligation to self-initiate a review?
27. The phrase ‘where warranted’ in the first sentence of Article 11.2 qualifies the statement that
the ‘authorities shall review … on their own initiative’.  Thus it states the condition giving rise to thisobligation, but the condition contains no explicit criteria.  To identify any implicit criteria it is
necessary to look at the context.  Part of this is provided by the statement in Article 11.1 that ‘An
anti-dumping duty shall remain in force only as long as and to the extent necessary to counteract
dumping which is causing injury.’ However, the Agreement provides explicit circumstances in which
reviews are to be commenced (on request, or by means of an expiry review) which largely securerespect for this principle.  Self-initiation therefore remains a residual category, appropriate for unusual
or extreme circumstances.  In such circumstances the existence of a legal obligation to self-initiate
cannot be entirely excluded.
Question 34
Is there any relevant material the Panel might be  guided by in its examination of the EC
allegations under Article 11.2 AD?
28. The EC assumes that the panel is referring to the statement in paragraph 107 of the EC’s First
Submission that ‘Brazil’s account of what happened following devaluation is all hypothetical, and no
                                                     
11 Panel Report, United States – Anti-Dumping Measures  on Stainless Steel Plate in Coils and Stainless
Steel Sheet and Strip from Korea, WT/DS179/R, adopted 1 February 2001, para. 6.120 et seq.WT/DS219/R
Page E-66
evidence of changes has been presented, merely assertions.’ Brazil makes these assertions under
Issue 3 of its First Submission, and the relevant material is referred to there.
Question 35
What, if any, is the relevance and role in these proceedings of the EC case-law and
practice concerning "changed circumstances" cited by Brazil on pp. 38 et seq. of its first written
submission?
29. The EC addresses this point, and the arguments of Brazil, at paragraph 101 of its First
Submission.  The EC’s practice regarding changes th at occur following the investigation period has
been expressed in a recent decision as follow: “Developments occurring after the IP can be taken intoaccount exceptionally provided that the imposition of anti-dumping duty based on the IP would be
manifestly unsuitable.  Indeed, these developments could only be used if their effects are manifest,
undisputed, lasting, not open to manipulation and did not stem from a deliberate action by interested
parties”.
12 It is very rare for the EC authorities to conclude that these conditions have been met.  (It
should be noted that, as a term of art, the phrase ‘changed circumstances’ is used in EC practice torefer not to the situation described here, but to factors taken into account in the course of a review to
justify modification of a measure).
30. As the EC pointed out in its First Submission, the devaluation took place during the
investigation period and such effects as it had on export prices were taken into account in thecalculation of the dumping margin.  However, even if the practice described above were one that was
applied to events occurring during the investigation period, the EC would not regard the
circumstances of the present investigations as ones that met its conditions.  In particular, even
assuming that the dumping margin had declined in the period immediately following devaluation
there would have been no basis for concluding that such a change would be lasting.
31. In any event, there is no obligation in the Anti-Dumping Agreement for the EC to modify its
procedures in the way described here.
Issues 4 and 5: "Improper normal value" - "inappropriate product types"; "inappropriate
product codes"
Question 36
Could the European Communities thoroughly  outline the precise steps it took in
calculating normal value, including constructed no rmal value, in this investigation, citing the
relevant parts of the record of the investig ation.  In responding, could the European
Communities clarify what is the "representativ eness" test referred to in para. 27 of the
Provisional Regulation?  Does it correspond to the test foreseen in Article 2.2 and footnote 2 of
the AD Agreement?  If not, where is the basis in the AD Agreement?
I.  Definition of the product under consideration and the like product
32. The ‘product under consideration’ was defined as threaded malleable cast iron tube or pipe
fittings.  The product types exported by  Tupy falling within this category were product types of
which the internal codes start with 12 or 18.13
                                                     
12 Iron and steel ropes and cables originating in Czech Republic, Russia, Thailand and Turkey, EC
Official Journal L 211, 4.8.2001, page 1, recital 32.
13 Provisional Regulation: recitals. 9 to 12.WT/DS219/R
Page E-67
33. The ‘like product’ was defined as threaded malleable cast iron tube or pipe fittings.  The
product types sold by Tupy in Brazil falling within  this category were those with internal codes
starting with 12, 68 and 69.14
II. Determination of whether actual sale prices could be used in calculating the normal value.
34 Actual sales prices were used provided that the ‘representativeness’ and ‘ordinary course oftrade’ tests were satisfied.  These tests were app lied to the data of each exporting/producing company.
A) Representativeness test35. This test corresponds to the test foreseen in Article 2.2 and footnote 2 of the Anti-Dumping
Agreement.
36. Firstly, the EC determined whether the total domestic sales volume of the like product
constituted at least 5 per cent of the total export sales volume to the EC of the product concerned.  The
criterion was met in this case: the volume of domestic sales of the like product by Tupy was 22.8million units, compared to 22.3 million units exported to the EC
15 (Had the criterion not been met the
domestic prices of the company would not have been used in the calculation of normal value).
37. Secondly, the EC determined whether, for each of the product types exported, the quantity
sold on the domestic market was at least 5 per cent of the identical type exported to the EC.16 The
results of these calculations were disclosed to the company.17 For product types that did not satisfy
this test the normal value was constructed (see below).
B) Sales in the ordinary course of trade.
38. The EC first looked to see whether, considered as a whole, the product was being sold ‘in the
ordinary course of trade’.  Then, for each product type sold on the domestic market, it checked
whether the sales could be regarded as being made in the ordinary course of trade, by establishing the
proportion of profitable sales to independent customer s of the type in question.  If 80 per cent or more
of the sales were profitable, normal value was based on all sales of that product type, if less than
80 per cent but at least 10 per cent were profitable, normal value was based on profitable sales only.
If less than 10 per cent of sales of the product type were profitable the normal value was constructed.The profitability test was done on a transaction by transaction basis, and the result for each
transaction,
18 and for each type,19 were disclosed to the company, as was the methodol ogy.20
Reference was also made to this test in the Provisional Regulation.21
                                                     
14 Provisional Regulation: recitals. 13 to 19.
15 Definitive Disclosure, Annex II, page 8, point 2.1.1, BRL-16; Provisional Disclosure, Annex II,
page 1, point 1.1, BRL-11; and Provisional Regulation, recital 20.
16 Provisional Disclosure, Annex II, page 1, point 1.1, BRL-11; Provisional Regulation, recitals 21 and
22.
17 Provisional Disclosure Annex II, Annex 4 ‘Normal values used’, column ‘% of quantity exported
sold on the domestic market’, BRL-11; Definitive disclosure, Annex II, Annex 4 ‘Normal values used’, column‘% of quantity exported sold on the domestic market’, BRL-16.
18 Provisional Disclosure, Annex II, Annex 2 ‘Domestic  sales on a transaction by transaction basis’,
BRL-11; Definitive disclosure, ditto, BRL-16.
19 Provisional Disclosure, Annex II, Annex 3 ‘normal value based on domestic sales’, column ‘% of
domestic sales which are profitable’, BRL-11; Definitive disclosure, ditto, BRL-16.
20 Provisional Disclosure, Annex II, page 3, last four paragraphs.
21 Recitals 23 and 24.WT/DS219/R
Page E-68
III. Calculation of the normal value
39. For those product types that satisfied both the ‘representativeness’ test and the ‘ordinary
course of trade’ test the normal value was based on the sale prices on the domestic market.  A
weighted average price was determined for each product type.
40. For those product types that failed either or both of the above tests the EC constructed a
normal value.22
41. The EC first calculated the manufacturing costs of the product types.  To these were added an
amount for SG&A expenses and for profit in accordan ce with the rules set out in Article 2.2 and the
chapeau of Article 2.2.2 of the Agreement.  SG&A expenses were based on sales in the ordinarycourse of trade only, although, since these expenses were allocated on the basis of turnover, the point
was not significant.  Details of the calculation were disclosed to the company,
23 and reported in the
Provisional Regulation.24 The amount for profit was derived from the sales of the like product in the
ordinary course of trade.25
42. The EC disclosed to the company the normal value used for each product type, and the basis(sale price or construction) for each such value.
26
Question 37
Did the European Communities include data from sales not permitting a proper
comparison to calculate SG&A costs?  To what extent, if at all, would this be a relevant
consideration under Articles 2.2 and 2.2.2 AD?
43. As mentioned in the answer to Question 36, the EC made its calculation of SG&A costs on
the basis of sales in the ordinary course of trade only.  The panel refers to ‘sales not permitting a
proper comparison’ which is a broader category than sales ‘not in the ordinary course of trade’
(mentioned in Article 2.2) because it includes, e.g.,  ‘unrepresentative’ (i.e. low volume) sales.  The
latter category were included in the data from which the EC calculated SG&A costs because this is
what is required by Article 2.2.2 of the AD.
44. As the SG&A expenses were allocated to the different product types on the basis of
turnover,27 the exclusion of certain categories of products or certain types from the calculation of
these expenses actually had no consequences in this case.
Question 38
Were there any sales to related parties?  If so, how were they treated in the application
of the methodology under Article 2.2.2 chapeau?
                                                     
22 Since Tupy was the sole Brazilian exporter the option of using data of other exporters was not
available.
23 Provisional disclosure, Annex II, page 4 point 1.2, second paragraph, BRL-11.
24 Recital 27.
25 Provisional disclosure, Annex II, page 4 point 1. 2, third paragraph, BRL-11. Provisional Regulation
recital 27.
26 Provisional and Definitive disclosures, Annex II, Annex 4 – final column: the figure is taken from
that in the ‘adjusted domestic normal value’ column or in the ‘adjusted constructed normal value per unit’
column.
27 Provisional Regulation, recital 37; Provisional disclosure, Annex  II, page 3, second paragraph, BRL-
11.WT/DS219/R
Page E-69
45. There were no domestic sales to related parties.  The only sales made by Tupy to related
parties were export sales via Tupy Europe.  These sales in no way affected the application of the
methodology under Article 2.2.2. chapeau.
Question 39
Is the Panel correct in understanding that the European Communities constructed the
normal value of products with Tupy internal product code "18" by using the methodology set
out in the chapeau of Article 2.2.2 (i.e. actual data from sales in the ordinary course of trade for
SG&A and profit of types within internal product codes 12, 68 and 69)?  If so, how does this
relate to the following European Communities statement: "the normal value was constructed
based on the cost of manufacture of the exported types so that also for those types no further
physical differences existed and therefore no fu rther adjustment was warranted." (Definitive
Regulation, para. 43)
46. It is correct that the EC constructed normal va lues for products starting with code 18 by using
the methodology set out in the chapeau of Article 2.2.2.  Of course, this provision provides only apartial guide because it concerns only two elements in the construction of normal values: SG&A and
profits.  The other main element, the ‘cost of manufacture’ (or ‘cost of production’ in terms of
Article 2.2) is calculated using actual costs of the exported product types.
47. The EC determined normal value for in total 1375 product types exported.  For 566 types (all
code 12 types), normal value was based on domestic sales.  For the remaining 809 types, normal value
was constructed.  These 809 types can be divided in two categories: product types with code 12 (526
types) and product types with code 18 (283 types).  For each of the normal values constructed, the EC
took the cost of manufacturing of the type exported, and added SG&A expenses and profit by using
the actual data from sales of the like product in the ordinary course of trade.  Recital 43 has to do withthe repeated and strongly varying claims for an adjustment for physical difference that were made by
Tupy during the proceeding.  It should be read in conjunction with recitals 30 and 31 of the same
Regulation.  Together these recitals cover and justify the rejection of the not very specific claims
made by Brazil to make adjustments to the construc ted normal values.  These claims were as follows:
48. Tupy had during the investigation made a claim for an adjustment for physical differences to
the normal value.  This claim was made in the reply to the Questionnaire:
28 ‘This refers to point f on
the “DMALLUR” table where it is shown NPT and BSP range as NPT is sold to the domestic market
and other external market but not to the EC countries.  Since there are significant technical
differences between NPT and BSP and due to the fact that the EC standard code for the concerned
product do not made any differences between them we could not exclude NPT and we had to adjust
the domestic price  (bold added)  to those differences in physical characteristics’ .
49. At provisional measures stage, the EC Commi ssion decided to use the internal product codes
of Tupy rather than the product code numbers proposed in the questionnaire, so that normal values
based on domestic sales were based only on product types 12 in order to compare with the export
prices of the identical exported product types 12.  As a consequence, no adjustments for physicaldifferences to these domestic normal values were warranted as the types compared on both domestic
and export side were completely identical.
50. Tupy argued in its comments to the provisional disclosure
29 that ‘Where the Commission has
constructed the normal value based on the profitable sales of product types starting with a ‘68’, ‘69’or ‘79’, it must grant Tupy an adjustment to take account of the differences in their physical
characteristics.  If it does not, then it will not have recognised, as it properly should, that these
                                                     
28 BRL-4, section G-2.1.
29 BRL-13, page 39, points 21 to 24WT/DS219/R
Page E-70
products attract higher prices and profits and that they are not even sold on the Community market.
…’.  It should be noted that this claim is already fundamentally different from the original one,
because the adjustment now claimed was an adjustment to the profit margin  used to construct normal
value.  Tupy also argued30 that ‘Where the Commission chooses to analyse the product types using
Tupy’s internal coding, this does not constitute a reason to deny a validly claimed adjustment forphysical differences as the physical difference in this case causes the constructed profit margin to be
inflated, thus increasing unfairly the normal value.  It is therefore submitted that the Commission must
grant the claim for an adjustment as claimed. …’
51. The EC refuted these arguments in the Definitive disclosure letter:
31
‘Tupy also considers it inappropriate that the calculation of the profit margin includes
domestic sales of product types that are not sold at all for export to the EC.  Again,
Article 2(6) of the basic Regulation says “sales of the like product” and does not put
any condition of whether like product types are exported to the EC or not.  Tupy
further argues that sales of products with different threading (NPT threaded) should
be excluded.  As these products are like products to the products exported, there is noreason to exclude them.  It also argues that if these products are not excluded, an
adjustment for physical difference should be made to the profit margin, based on
Tupy’s claim for an adjustment for physical differences.  Adjustments for physical
differences are foreseen in Article 2(10)(a) of the Basic Regulation and are intended
to make a fair comparison between normal value and export price.  No adjustmentsare foreseen when calculating the profit margin for constructing the normal values.  It
is clear that, as both costs of manufacturing and sales prices of NPT threaded like
products are claimed to be higher than costs and sales prices of BSP threaded like
products, any hypothetical adjustment should be made on both the cost of production
and the sales prices and would as such not affect the profit margin.’
Question 37
Comment on Brazil’s allegation of the in consistency between your statement in the
Disclosure Preceding the Provisional Regulation:
"- On the domestic market, products st arting with a 12, 68, 69 and 79 code were
sold.  Products starting with 68 and 69 had a different thread (NPT instead of BSP),while 79 products were not threaded.  Products with code 68 were also made for higherpressure than other products.  The costs of manufacturing of these products appearedto be different, and most of these products had also market values which were verydifferent.
- On the EC market, Tupy sold products st arting with a 12 code (own brand) and
products starting with an 18 code (Nefit brand). Again, these products appeared to havesometimes very different costs of manufacturing.” (footnotes omitted, emphasis added)
and the position taken in the investigatio n not to grant adjustments as envisaged by
Article 2.4
                                                     
30 Ibid., page 24, point 24.
31 Provisional disclosure, Annex II, page 4, last paragraph, BRL-16.WT/DS219/R
Page E-71
A. Description of the product categories and differences in cost of manufacturing and market
value
52. Tupy reported in its reply to the Questionnaire that it sold on the domestic market four
different categories (according to Tupy’s internal product classification) of malleable cast iron tube orpipe fittings: product types starting with code 12, code 68, code 69 and code 79.  All these categories
seemed to correspond to the definition of the product as given in the Notice of Initiation: ‘malleable
cast iron tube or pipe fittings’ .
53. However, at the provisional stage, the EC authorities decided to exclude unthreaded fittings.
The reasons for this exclusion were given in the Provisional Regulation.
32  They were not contested
by Tupy during the investigation.
54. As a consequence, the product types starting with internal product code 79 were excluded
from the scope of the investigation because they were  not threaded.  Types in this category were all
sold to one and the same customer, Meikon, on an OEM basis.  In fact, these product types were not
fittings but were reported as such by Tupy because they were produced on the same production lineand fall under the same CN code as fittings.  These products were not used as a fitting but as a tooling
for making threads in plastic tubes.  These products were furthermore re-exported by Meikon in
South-American markets.  It should be noted that the EC omitted to exclude this category from the
calculations at provisional stage, but corrected this at definitive stage.
33
55. Within each remaining category (12, 68 and 69), many types were sold on the domesticmarket.  The differences between the types within each category mainly concern the shape, size,
weight and surface finishing, resulting in different costs and market values.  All these types have,
despite these differences, the same basic physical and technical characteristics as well as the same
uses, and were therefore considered as a single product.
34
56. It should be noted that there were also general differences between the three remainingcategories.  The main differences were:
• Code 12: BSP or cylindrical (parallel) threading, pressure resistance from 290 to 360 psi.
• Code 68: NPT or conical threading, pressure resistance from 230 to 2000 psi.
• Code 69: NPT or conical threading, pressure resistance from 75 to 300 psi.
57. These differences in threading and pressure resistance also led to differences in weight, in
cost of manufacturing and in market value (sales prices) for fittings types for which all other physical
characteristics (shape, dimension, surface, etc) were the same.
58. Two different categories were exported to the EC (code 12 and 18).  Although Tupy argued
that these types were identical, apart from the bran ding, it was found that the types within these two
categories had different costs of manufacturing.  Apart from the use of a different mould, this was also
caused by differences in weight and differences in testing.
59. The paragraphs of the Provisional disclosure quoted in the Question refer to the comparison
method used by the EC Commission, i.e. to use the internal product codes of Tupy rather than the
product control numbers as defined by the EC in the Questionnaire.  A practical example will
demonstrate why it was necessary to use Tupy’s internal product codes:
                                                     
32 Recitals 10 and 11.
33 Definitive disclosure, Annex II, page 8, point 2.1.1, BRL-16.
34 Provisional Regulation, recital 12.WT/DS219/R
Page E-72
Product control
number ECInternal
product
number TupyProduct description Cost of
manufacturing
during the POI
per unitAverage
domestic sales
price during the
POI
A400DD00BB 121100431 M/F Elbow, ½ inch,
BSP thread, black, Tupy
brand, pressure 150 lb0.192 0.5488
A400DD00BB 681100441 M/F Elbow, ½ inch,
NPT thread, black, Tupy
brand, pressure 300 lb0.921 1.3070
A400DD00BB 691100441 M/F Elbow, ½ inch,
NPT thread, black, Tupy
brand, pressure 150 lb0.219 0.7291
A400DD00BB 181100431 M/F Elbow, ½ inch,
BSP thread, black,
NEFIT brand, pressure150 lb0.182 Not sold in
Brazil, only
exported
60. This example shows that fittings with differ ent threading or brand name although being for
the rest quasi-identical have a strongly varying market value and that it would be unreasonable to
combine domestic sales of 12, 68 and 69 types to determine a normal value combined for 12 and 18
types which have in their turn a strongly varying cost and market value.
B. Position taken not to grant adjustments under Article 2.4
61. For product types with code 12 exported to the EC for which identical types were sold on the
domestic market, the domestic prices of those types only were used to determine the normal value (if
sales were made in sufficient quantities and in the ordinary course of trade).
62. For product types with code 12 for which no identical types were sold on the domestic market
and for product types 18 (which were exported only to the Community) the normal value wasconstructed (as described in the answer to Question 36).
63. The comparison of normal value and export price of identical types make by definition a
claim under Article 2.4 for physical differences unfounded.  A claim to make an adjustment for
physical differences to the profit used for constructing normal value runs counter to the logic implicitin Article 2.2.2 which requires the profit level to be based on a data for a range of products.  There is
no logical basis on which an adjustment could be made to provide for different profit levels for the
various product types.
64. Article 2.4 requires the authorities to make due allowance for differences between the normal
value and the export price.  The adjustment claimed by Brazil is not based on any such difference.  In
reality, Brazil’s claim amounts to requesting an adjustment for the alleged difference between the
profit margin included in the constructed normal value in accordance with Article 2.2.2 and the
theoretical profit margin which the exported type woul d have obtained if it had been sold Brazil in the
ordinary course of trade and in sufficient quantity.  However, Article 2.4 is not concerned with thattype of difference.  Moreover, the profit margin which the exported types would have obtained in
Brazil is unknown, which is precisely why it becomes necessary to calculate a “reasonable” amount
for profit in accordance with Article 2.2.2.WT/DS219/R
Page E-73
Question 41
Comment on Brazil's statements on page 60 of its first written submission:
“Consequently, the words “t hroughout this Agreement” in Article 2.6 when read
together with the wording of Article 2.2.2 obliges the investigating authorities to
use the actual amounts for SG&A and for profits pertaining to production and
sales in the ordinary course of trade of products which are identical, i.e. alike in
all respects, to the product under consideration. Only in the absence of such
identical products can the actual amounts for SG&A and for profits pertaining
to production and sales in the ordinary course of trade of products, which are,
although not alike in all respects, having  characteristics closely resembling those
of the product under consideration. However, in the latter case the investigative
authority is obliged to make due allowances in each case, on its merits, for
differences in physical characteristics affecting price comparability…..”
65. Brazil’s proposal is based on a misunderstanding of the notion of like product.  The base point
for applying this notion is not the particular selection of products for which a relationship with otherproducts is sought.  Rather it is the ‘product under consideration’ as defined for the investigation
(normally in the notice of initiation).  Where the Agreement intends the kind of relationship proposed
by Brazil it uses the notion of comparable products, and allows for adjustments where there are
differences.  The chapeau of Article 2.2.2 explicitly directs the use of production and sales data
pertaining to the like product and not a comparable product.
66. The kind of interpretation proposed by Brazil would lead to arbitrary if not chaotic results,
which are clearly not the intention of the Agreement.  The SG&A and profits used for constructing
prices would depend on the particular distribution of similarities and differences in the exporter’s
product range.  On the other hand, the method actually intended by the Agreement results in anaveraging of data, which ensures a much fairer solution.  Furthermore, taken literally, Brazil’s
methodology would lead to the use of data pertaining  exclusively to the sales of the very product type
whose sales price had been rejected, e.g. because sales were not in the ordinary course of trade, so that
the constructed price would be the same as the (rejected) sale price.  It was in order to avoid such a
contradictory result that the chapeau of Article 2.2.2 specified the use of data pertaining to production
and sales of the ‘like product’.
67. Furthermore, Brazil’s comments appear to contradict its own view, expressed on the same
page, that ‘the AD Agreement does not allow for separate like products to be defined for the various
product types, this is borne out by the use of the word ‘the’ in Article 2.6.  Whatever like product is
defined will apply to the construction of all the relevant normal values’.
Question 47
What is the relationship between Article 2.2 and the chapeau of Article 2.2.2 AD?
68. The chapeau of Article 2.2.2 provides the basic rule for determining the amounts for SG&A
costs and for profit for the purposes of Article 2.2.  Whenever those amounts have been determined in
conformity with the chapeau of Article 2.2.2, they must be deemed in conformity also with
Article 2.235.
                                                     
35 See the Panel Report on Thailand – Anti-Dumping Duties on Angles, Shapes and Sections of Iron or
Non-Alloy Steel and H-Beams from Poland , WT/DS122/R, where the Panel concluded that “AD Article 2.2.2
(i), when applied correctly, necessarily yields reasonable amounts for profits” and that Article 2.2 imposes noWT/DS219/R
Page E-74
Question 48
Is the meaning of "proper comparison" in Ar ticle 2.2 AD the same as "fair comparison"
in Article 2.4 AD? Provide the legal basis and substantiation for your response, with referenceto all relevant provisions in the AD (and, if necessary, other) Agreement.
69. No.  The circumstances mentioned in Article 2.2 (“the particular market situation or the low
volume of the sales in the domestic market of the exporting country”) suggest that domestic prices are
deemed not to allow a “proper comparison” when they are not reliable.  On the other hand, Article 2.4
comes into play where a reliable normal value has already been established  - whether it is based on
domestic prices or constructed-  but there are differences between that normal value and the exportprice for which it is necessary to make an allowance in order to ensure that the comparison is fair.
Question 49
What is the nature of the reference in Article 2.2 AD concerning "sales [that] do not
permit a proper comparison"?  Is it merely a threshold to guide the decision whether or not to
proceed to constructed normal value, or is it also a consideration to be taken into account in
constructing normal value?  What is the basi s for your response, using the customary rules of
interpretation of public international law?
70. The reference in Article 2.2 concerning “sales that do not permit a proper comparison” is a
threshold to guide the decision whether or not to construct normal value and not a rule for
constructing the normal value.  The rules for constructing the normal value are contained elsewhere in
the Agreement, namely in the last phrase of Article 2.2 and in Article 2.2.2, as  regards the amount for
SG&A expenses and profits.  If the drafters had intended to exclude the sales that “do not permit aproper comparison” from the chapeau of Article 2.2.2, they would have indicated so expressly, as they
did with respect to the category of sales “not in the ordinary course of trade”, which is also mentioned
in Article 2.2.
Question 50
Would the removal of sales of such a low vo lume as to not permit a proper comparison
within the meaning of Article 2.2 AD contradict Article 2.2.2 AD by removing a category that
should properly have been included in the calculation?
71. Article 2.2.2 does not provide for the discarding of low-volume sales as part of the data
employed in constructing a normal value.  The approach adopted by the Appellate Body in the Bed
Linen  case in regard to Article 2.2.2(ii)36 suggests that panels should be reluctant to abandon the literal
interpretation of a provision because of what might seem to be its perverse consequences.
Question 51
Does the definition of "like product" apply among types falling within the scope of the
like product? Provide the basis for your reasoning.
72. The meaning of this question is unclear to the EC.
                                                                                                                                                                    
“separate reasonability test” (at para 7.128). The Panel implied that the same is true also of the chapeau of
Article 2.2.2 (ibid., at para. 7.125)
36 Appellate Body Report, European Communities – Anti-Dumping Duties on Imports of Cotton-type
Bedlinen from India (“European Communities – Bed linen”), WT/DS141/R, adopted  12 March 2001, para. 80.WT/DS219/R
Page E-75
Question 52
How do the parties respond to the US statement in its written third party submission
that an improper calculation of constructed normal value cannot constitute a breach of
Article 2.4 AD, and that a putative breach of Article 2.4 AD cannot be used to bolster a claim
under Articles 2.2 and 2.2.2 AD?
73. Article 2.4, and Articles 2.2 and 2.2.2, are distinct elements of a complex structure.  In
principle, claims of a breach of one provision do not automatically constitute breaches of the other.
On the other hand, the EC does not argue that the way that a normal value is constructed can never
have an influence on the way in which the price comparison should be carried out.  What it rejects is
Brazil’s argument that an adjustment should be made for the way in which the profit level has beencalculated.
74. The EC is not clear what the US means by the expression ‘bolster a claim’.  The US itself
refers to the use of ‘context’ in interpreting provisions of the Agreement.  Article 2.4 is obviously part
of the context of Articles 2.2 and 2.2.2, and is therefore in principle to be considered in interpretingthose provisions.  Whether it actually contributed to that interpretation would depend on the particular
aspect of those provisions that was being examined.
Question 53
Comment on the statement by the European Communities at para. 127 of its first
written submission that "…both SG&A and pr ofit were based on the 1260 types of the like
product sold on the domestic market".
75. The EC considered the domestic sales of all types of the like product sold on the domestic
market in order to determine SG&A costs and profit for the purpose of constructing the normal value.
On reviewing the data the EC has discovered that th e total number of types of the like product sold of
the domestic market was 1261 rather than 1260 (the figure given in the EC’s First Submission).
76. While all types of the like product sold on the domestic market were taken into consideration,
SG&A costs and profit were based solely on those types sold on the domestic market in the ordinary
course of trade.  Out of the 1261 types sold on the Brazilian domestic market, 68 types were not soldin the ordinary course of trade.  SG&A costs and profit were thus based on the 1193 types sold on the
domestic market in the ordinary course of trade.  This can clearly be seen in the Definitive
disclosure.
37 These data were also provided to Tupy during the proceeding on a CD-ROM.
77. The approach followed by the EC is fully in line with Article 2.2.2 which says: ‘the amounts
for administrative selling and any other costs and for profits shall be based on actual data pertaining to
production and sales in the ordinary course of trade of the like product by the exporter or producer
under investigation’.
Issues 6 & 10: "No proper consideration of tax neutralisation"; "no proper basis to assess
PIS/COFINS indirect taxes"
Question 54
Does the European Communities believe th at the IPI Premium rates applicable to
exported products were established by Resolution no. 2 of 17 January 1979 of the Exportation
Incentive Commission (‘Resolution no. 2’) attach ed to the Ministry of the Inland Revenue and
                                                     
37 Annex II ‘Company specific findings concerning dumping’, Annex 3 ‘Normal value based on
domestic sales’, BRL-16.WT/DS219/R
Page E-76
that Resolution no. 2 established an IPI Premiu m Credit of 20 per cent for fittings under which
the definition of the like product in this investigation falls? (Brazil first written submission,
p. 78). Was this legislation on the reco rd of the underlying AD investigation?
78. The only legal document referred to by Tupy during the investigation in respect of the IPI
Premium Credit was the ‘Brazilian law-edict nr 491-dated March 5th, 1969.  A four-page translation of
that edict was part of Tupy’s reply to the Questionnaire.  Although this subject was examined at
length during the on-the-spot verification and additional evidence was requested by the EC
investigators, no such evidence in the form of an y law was presented.  Nor was additional evidence of
this kind submitted later in the investigation.
79. The legislation referred to in the question was thus not on the record of the investigation.
More particularly, in terms of Article 17.5(ii), it was not a ‘fact made available in conformity with
appropriate domestic procedures to the authorities’, and is therefore not a matter to be considered by
the Panel.  Under Article 2.4 (the relevant context here) the burden lay on Tupy to present the
evidence in support of the adjustments that it claimed.
80. The EC is therefore not in a position to make a judgement on the relationship of this
legislation and the IPI Premium rates.
81. The EC notes that whether or not this legislation provides the basis for the IPI Premium
Credit, the arguments presented in EC’s Submission38 remain valid.
Question 55
With reference to the record of the inve stigation, can the European Communities
substantiate its statement in para. 153 of its first written submission that the normal valuecalculated was net of the IPI Premium Cred it and thus no adjustment was necessary?
82. The Panel’s question suggests some confusion between the so-called ‘IPI Premium Credit’
and the IPI tax .
83. The IPI tax is a “value added tax”.  It is collected on the domestic sales of fittings by Tupy but
not on the exports of fittings.  The IPI tax is levied also on the purchases of inputs by Tupy.   Sincethe IPI is a VAT-type tax, the IPI paid by Tupy on its purchases of inputs can be credited against the
IPI collected on the sales of fittings.  This means that the IPI imposes no net cost on Tupy and,
therefore, does not increase the price of the fittings sold in Brazil
84. The so-called ‘IPI Premium Credit’ is a tax credit equal to a certain percentage of the
beneficiary’s export turnover.  That tax credit can be deducted from the beneficiary’s IPI liability or,
where this is not possible, from other taxes.  The IPI Premium Credit is granted as “compensation” for
some unspecified internal taxes allegedly borne by the exported products.  Neither Tupy nor Brazil
have identified which are those internal taxes.  Thus, the Panel should not assume that the  internal tax
purportedly “compensated” by the IPI Premium Credit is the IPI.
85. In support of the statement that the domestic prices used by the EC in order to calculate the
normal value did not include the IPI on the sales of fittings the EC presents the following three
documents :
1. A table of data on a CD-ROM that formed part of the Definitive disclosure to Tupy,
file dmsalur241043 (Exhibit EC-18), ‘Domesti c sales transaction per transaction’.  It
gives the net domestic sales invoices values on a per product type basis for invoice nr
                                                     
38 Paragraphs 149 et seq.WT/DS219/R
Page E-77
203886, one of the invoices checked during the verification.  The totals have been
added.
2. A copy of the invoice (‘Nota Fiscal Fatura’) number 203886 (exhibit 25 on spot
verification – Exhibit EC-19)
3. An explanation requested by the case-handlers and provided by Tupy of how
domestic sales invoices are booked in its accounting records.  (page 13 hand-written
notes on spot – Exhibit EC-20)
86. The first document shows that the net invoice value reported by Tupy to the EC and taken
into account in the dumping calculations was 31.416,52 Real for a quantity of 89202 units.
87. The second document, the invoice, shows a total invoice amount of 39.753,77 Real.  This
amount is composed of the following two amounts: ‘baso de calculo do ICMS’ (36.809,05 Real) and
‘valor total do IPI’ (2.944,72 Real).  In the first amount are included: the freight charged to the
customer (valor do frete 1.653,02 Real), the amount  of ICMS tax (4.417,09 Real).  Also included in
the same amount, but not visible on the invoice, are the amounts for the PIS and COFINS tax.  Note
that the invoice also shows in the column ‘Quandidade’ the same quantities
(3050+3000+39960+43192) as reported by Tupy to the EC.
88. The third document shows the accounts used and the amounts booked on the different
accounts to record the invoice.  In fact, the accountant was requested to demonstrate and wrote down
how domestic invoices were booked.  35.156,03 Real is booked as gross sales receipts (credit of
account ‘Receita Bruta de Vendas’), 2.944,72 as IPI payable (credit of account ‘IPI a Recolter’), and
1.653,02 Real as receipts of freight (‘Receita de Frete’).  The total of these three amounts, which
corresponds to the total invoice value, is booked as a receivable (39.753,77 Real).  Three additionalbookings were made for the taxes included in the gross sales receipts.  The amounts debited were in
each case debited on accounts (8501, 8601 and 8701) as a ‘reduction of sales’.  The amounts booked
were 4.417,09 Real for ICMS tax, 239,26 Real for PIS tax, 1.104,27 Real for COFINS tax.
89. In conclusion, the total net value booked in the accounts is 35.156.03 Real gross sales, already
excluding the IPI tax, and then further reducing this gross sales by 4417,09 + 239,26 + 1.104,27 other
taxes, or a net turnover of 29.395,41 Real.  The net invoice value reported to the EC is 31.416,52 Realand includes 1.653,02 Real inland freight (net value of goods is 29.763,50 Real).  The inland freight
was claimed and granted as an adjustment to the normal value.  There was a slight difference between
the net amount of goods as explained by Tupy and the net amount of goods reported to the EC.  Tupy
has looked this up during the investigation and the explanation was accepted by the case-handlers.
However, there is no detailed record of this explanation.
90. Thus the domestic prices for fittings on the basis of which the normal value was calculated
were not only net of IPI tax on those sales , but also net of ICMS, PIS and COFINS.
91. Moreover, as mentioned above, since the IPI is VAT-type tax, the IPI paid by Tupy on its
purchases of inputs can be credited against the IPI collected on the domestic sale of fittings.  Thus, the
IPI on those inputs is not “borne” by the domestic sales of fittings and no adjustment is required.  The
same is true of the ICMS, which is also a VAT-type tax.
92. In contrast, PIS and COFINS are cumulative ta xes.  This means that the PIS and COFINS on
inputs are included in the cost of production of the fittings sold in Brazil by Tupy and, presumably,
have been reflected in the domestic prices.  Thus, to the extent that the PIS and COFINS on inputs
were refunded in respect of the exported fittings, it was appropriate to grant an adjustment to the
normal value, which the EC authorities did.WT/DS219/R
Page E-78
Question 56
How does the European Communities reconcile the statements in paras. 153-156 of the
EC's first written submission that the normal  value calculated was net of the IPI Premium
Credit and thus no adjustment was necessary, but  that the EC investigating authorities denied
an allowance in respect of the IPI Premium Cred it as Tupy did not demonstrate that this credit
"compensated" for internal taxes "borne by the like product "when destined for consumption"
on the Brazilian market within the meaning of Article VI:4 of the GATT 1994.
93. An IPI tax was applicable to domestic sales of fittings.  However, as explained in the reply to
the previous question Tupy had reported its domestic sales net of this tax.  As also explained, the IPI
on the inputs used by Tupy can be credited against the IPI on Tupys sales of fittings.  Consequently,in the context of GATT Article VI:4, no IPI tax was ‘borne by the like product’ or by materials
physically incorporated therein ‘when destined fo r consumption’ in the Brazilian domestic market.
Question 57
On what basis does the European Communities justify the use of data relating to the 20
"most exported types" of the product con cerned in calculating the adjustment for
PIS/COFINS?
94. The EC based its calculation on data relating to these types because they were representative
of the products sold.  The EC investigators knew th ey could safely proceed on this basis because the
outcome of this calculation would have only a minor effect on the level of the dumping margin.
Question 58
Can the EC direct the Panel to where in its first written submission it describes the
methodology used to calculate the PIS/COFINS adjustment?  Is this methodology outlined in
paras. 237-239 of its first submission?  Is the relevant Deficiency Letter sent to Tupy during
investigation in Exhibits BRL-6 and 7?
95. The methodology used by the EC to calculate the PIS/COFINS adjustment is, as the Panel
suggests, described in paragraphs 237-239 of its First Submission.
96. The Deficiency Letter is the EC’s letter of 9 August 1999 (BRL-6).  Tupy’s description (in its
list of annexes) of the Letter as ‘ requesting additional information’  is not entirely correct.  The Letter
says ‘ a preliminary scan of the information provided indicates the following deficiencies and points,
which need clarification :’
97. Tupy’s reply to the letter is Exhibit BRL-7.Question 66
What considerations could guide a panel's examination of type by type analysis under
the AD Agreement and the EC's use of the 20 "most exported types" in calculating the
adjustment for the PIS/COFINS credit? Refer also to any other relevant material. Address the
legal relevance, if any, of footnote 1 to the SCM Agreement to this issue.
98. The EC does not understand this question.WT/DS219/R
Page E-79
Question 67
In respect of Issues 6 & 10, to what extent does the EC method of calculating
adjustments relate to the concept of "sampling"?  Is this more an issue of "allocation"?  Please
explain, referring to any releva nt provisions of the AD Agreement.
99. The method used by the EC authorities does not constitute “sampling”, at least in  the
ordinary sense in which that term is used in Article 6.10.  The EC authorities did not limit their
examination of the existence of dumping to a “sample” of types or transactions.  Rather, the method
challenged by Brazil was used in order to allocate the total amount of the PIS/COFINs refund among
the different types of fittings with a view to adjust the normal value for each type.
100. As explained in paragraphs 231-248 of the EC’s First Submission, in the course of
investigation, the EC authorities found that Tupy had received a certain amount by way of refund of
the PIS/COFINs taxes previously levied on the inputs incorporated into the exported fittings.  Since
the actual amount refunded in respect of each type of fittings was not provided by Tupy, it was
necessary to device a method to allocate the total amount of the refund among the different types offittings.  An allocation of the basis of the export turnover (i.e. by expressing the total amount of the
refund as a percentage of the total export turnover and then deducting that percentage from the normal
value for each type) would have resulted in an excessive adjustment, because the unit export price for
each type was, as a general rule, much lower than the domestic unit price for the same type, while the
unit cost of the incorporated inputs for which the refund was granted was the same, irrespective ofwhether the fittings were sold in Brazil or for export.  In order to avoid this result, the investigators
adjusted first the export turnover by using an estimated ratio between the domestic and export prices.
That ratio was derived from data for the twenty-mos t exported types sold in Brazil.  The EC believes
that this was a reasonable method to allocate the refund, given the practical constraints under which
investigators act.  Indeed, Brazil has not shown that using a larger number of types to calculate theratio would have yielded a significantly different result, let alone one which was more favourable to
Tupy.
Question 68
Comment on the statement in the disclosure preceding the provisional regulation
(Annex II , pp(7&8) that " … only 23.541.250 Real was booked, because the credit will not beused in the next few years due to the fact that  the company is still entitled to tax credits foe
losses carried forward."
101. The EC listed a number of factors which demonstrated, apart from the fact that the taxes were
not born by the fittings when consumed in Brazil, that the claim was also incorrect.
102. Apart from the fact that the adjustment claimed was calculated on domestic prices instead of
on the much lower export prices and that it was not consistently booked over the previous years
(although the legislation had not changed in this respect during those years), it was also confirmed
during the on-the-spot verification that out of the total tax credit of 31.812.500.49 Real relating toexports of all products by Tupy during the year 1998, only 23.541.250.36 Real was booked in the
gross sales revenue in 1998.  The explanation given was that, as Tupy was still entitled to tax credits
for losses carried over, the tax credit would therefore not be used in the next few years, and as a
consequence only an ‘actualisation value’ was booked and not the full amount.
103. As evidence for this statement, a detailed listing of all exports, allowing for tax credit, during
1998 is added (collected on spot, – Exhibit EC-21).  At the bottom the ‘total general’ amount of
31.812.500,49 Real is shown, the net amount ‘liquido’ 23.541.250.36 Real, and the difference
between both of 8.271.250,13 Real, called ‘Honorarios A’ which was explained by the company to be
‘booked as a reserve for losses’.WT/DS219/R
Page E-80
104. This conclusion was not seriously contested by Tupy during the investigation.39 The statement
in the Brazil’s first Submission40 that ‘ the difference between the credit received 31.812.500 Real and
the one booked 23.541.250 Real is to be understood mainly in the context of the delays incurred by
the inspection of the fiscal authorities and also with regard to expenses involved with thoseproceedings’  was never raised during the investigation, is in contradiction with the explanation given
on spot, and does not conform to the listing given during the on-the-spot verification.
Issue 7: "No proper adjustment for advertising and sales promoting expenses"
Question 69
What supporting documentation underlies the statement:  "Similar commissions were
paid for similar purposes to Tupy Europe for export transactions with other clients" (in the
Disclosure Preceding Definitive Regulation)?
105. The EC presents documents, obtained during the on-the-spot verification, relating to three
payments of commissions to Tupy Europe (Exhibit EC-22).
106. It became apparent during the verification that commissions were paid to Tupy Europe and
that these commissions were partly used by Tupy Europe for promotion and advertising of the product
concerned.  When checking the payment of these commissions, the EC discovered that each of thepayments referred to several invoices.  The three payments for commissions paid by Tupy Brazil to
Tupy Europe refer to the following invoices (it must be made clear that these are not all the payments
of commission by Tupy Brazil to Tupy Europe, but only the ones relating to a limited selection of
verified export invoices):
Payment no 1  was done in Italian lira (amount not readable, but should be
according to our notes 15% of invoice values) and refers to the following
invoices
InvoicenoNumber of
export linesClient Invoice
currencyTotal invoice
value
10720 Invoice before IP, details not available
10798 61 Jannone – Italy LIT 50.390.535
10964 185 Jannone – Italy LIT 389.637.313
11026 135 Jannone – Italy LIT 362.031.915
11028 227 Jannone – Italy LIT 360.040.035
11113 7 l Jannone – Italy LIT 103.298.580
Payment no 2  was done in pesetas (amount : 217.528, 5% of invoice values,
does not match entirely) and refers to the following invoices
12025 150 Thisa – Spain PTA 2.494.399
12026 153 Thisa – Spain PTA 2.227.204
Payment no 3  was done in Italian lira (amount : 15.440.221, 5% of invoice
values, does not match entirely) and refers to the following invoices
11463 28 Jannone Ferro Tubi –
ItalyLIT 73.588.014
11511 43 Jannone Ferro Tubi –
ItalyLIT 76.659.705
11565 27 Jannone Ferro Tubi –
ItalyLIT 167.179.613
                                                     
39 See Tupy’s ‘Fourth Submission’, quoted in Brazil’s Submission at page 73.
40 Page 80.WT/DS219/R
Page E-81
Question 70
Did the advertising expenses at issue relate to export transactions of Tupy specifically
involving pipe fittings?
107. Yes (see answer to Question 69 above).  The EC presents a copy of one invoice (number
11113) out of the ones listed in the reply to Question 69 (Exhibit EC-23, obtained during the on-the-
spot verification).  All the other invoices for which the above commissions were paid are listed in the
information provided by Tupy (on CD-ROM) on export sales of fittings to the Community.
Question 71
Does the European Communities agree that ad vertising expenses might form the basis
for an adjustment under Article 2.4 AD? Refer to any relevant material.
108. Differences in advertising expenses might form the basis for an adjustment under Article 2.4
if they qualify as ‘ any other differences which are also demonstrated to affect price comparability’ .
The EC has rejected the claim made by Tupy because, by not reporting all its expenses incurred for
advertisement and promotion on the exports of fittings  to the EC, it did not allow the EC authorities to
establish the existence of such a difference between domestic and export sales.
Issue 8: "No proper adjustment for packing costs"
Question 77
In the Disclosure Preceding the Definitive Re gulation, the European Communities stated
"…the estimation of labour costs was not supported by evidence, although evidence was asked
during the on-the-spot verification…"  Can the European Communities provide evidence of this
request for evidence during verification ? Cite to  the relevant portions of the record of the
investigation.
109. The request was made orally during the on-the-spot verification, but this was merely an
application of the general requirement for supporting evidence that is established by Article 2.4 of theAgreement, and was emphasised in the EC’s Questionnaire and in its letter (BRL-8) notifying Tupy of
the visit.  The EC does not understand that Brazil denies that requests for supporting evidence were
made, or at least that the need for such evidence was apparent to Tupy.
Question 83
Would an adjustment under Article 2.4 AD be ju stified for general costs incurred by a
company in maintain ing inventory?  Does Article 2.4 AD relate  to indirect (i.e. "pre-sale") and
direct (i.e. "post-sale") packing expenses? Why does  Brazil / Tupy believe this method used by
the European Communities was unreasonable or inconsistent with Article 2.4?
110. The EC authorities would make an adjustment under Article 2.4 for maintaining inventory if a
company demonstrates that differences in costs exist for domestic and export markets and if such
difference affects price comparability.
111. The question whether Article 2.4 relates to indirect and direct packing expenses cannot be
answered by a simple yes or no.  Differences in pre-sale expenses between export and domestic
market will normally be taken into account by a company when setting its prices and thus affect the
price comparability.  If this is demonstrated an adjustment is warranted.WT/DS219/R
Page E-82
112. Post-sale expenses known at the moment of sale will also affect price comparability and an
adjustment will be warranted.  Post-sales expenses  for packing not known at the moment of sale will
not affect price comparability and no adjustment can therefore be granted.
113. It should be noted that in the present case the issue of pre- or post-sale expenses did not
present any difficulty.  A problem arose because the allocation key used by Tupy was not supported
by any evidence, and was completely at odds with any figure that could be derived from the volumes
of sales on the domestic and export markets.
Question 84
Was the verification visit in this investigation "essentially documentary"? Is an
"essentially documentary" verification consistent with the AD Agreement?  Why or why not?
114. The basis for verification is to be found in Article 6.6 AD:
Except in circumstances provided for in para graph 8, the authorities shall during the
course of an investigation satisfy themselves as to the accuracy of the information
supplied by interested parties upon which their findings are based.
115. All anti-dumping verifications are essentially documentary.  One simple reason for this is that
on-spot verifications take place after the investigation period, and there is no guarantee that the factual
situation has not changed, be it unwittingly or wittingly, since the investigation period.
116. Whereas documentary evidence is readily available, other kinds of evidence are not.  The
information that forms the basis of anti-dumping investigations is as a matter of course recorded in
documents.  The relationships that a company has with shareholders, governmental (especially tax)
authorities, and purchasers/sellers and other contractors, all depend on the maintenance of satisfactoryrecords.  Although investigators will often put questions to company officials and their
representatives, they have no authority to examine or cross-examine them in the manner that might be
adopted in a court of law, still less to take evidence on oath.
Issue 9: "No proper currency conversions"
Question 85
Can the European Communities clarify the me aning of each of the headings of the
columns referred to by Brazil in its first written submission (p.96)?
117. The meanings of the column headings is the following :
SN: Sequential number of all transaction lines reported (i.e. the first transaction is
“1”, the second is “2”, and so on).
Sales code: The code used for the product type in Tupy’s records (Tupy’s products
code).
Invoice number: Tupy’s export invoice number.
Quantity: the quantity invoiced to Tupy’s customer in units.
Net invoice value: The net invoice value, net of taxes and after discount deducted on
the invoice, in the currency of saleWT/DS219/R
Page E-83
Currency: the currency of the sale.
Turnover in Real: The net invoice value in Real, using the daily exchange rate at the
date of the export invoice.
CIF Community frontier value in Real: the CIF value of the goods at the Community
border in Real.
Transport Real: The amount of the adjustment made to the export price for inland
transport costs incurred in Brazil from Tupy’s premises to the port.
Question 86
Does converting the transport cost figure s from the European currency reported by
Tupy to Brazilian Reals on the same monthly rate basis as Tupy converted those amounts from
Reals to the European currency make any di fference to the result of the calculation?
118. The EC presents (Exhibit EC-24) the final page of a table listing details of all export sales that
were included in the dumping calculations.  This document was contained in the Definitive
disclosure41 (and was also provided on a CD-Rom).  The only information added is the totals.  The
total for ‘Transport Real’ is 50.200,00 Real.  This amount corresponds exactly to the amount whichTupy converted into foreign currency.
42 It is clear that the currency conversion had no influence to the
result of the calculation.
Question 87
Is it the usual practice of the EC to compare the prices used to compare the dumping
margin on the basis of the exporter’s currency?
119. It is the EC’s consistent practice to calculate the dumping margin in the exporter’s currency
for companies located in market economy countries.  For non-market economy countries, the ECmight deviate from this practise and calculate the dumping margin either in the currency most used
for exports, or in the currency of the analogue country.
Question 88
Was the conversion of the amounts reported by Tupy from the European currency to
Reals done only in the case of transport costs?
120. No, a conversion from foreign currencies into Real was also necessary for all other
adjustments made to the export price, as Tupy had reported all these adjustments in the currency of
the export invoices, despite instructions to report in Real.
121. For most allowances to the export price, the EC used the exchange rates used by Tupy to
convert the BRL into foreign currency.  This was the case for the allowances for inland transport,
freight, insurance, charges, packing and other (publicity expenses).  There should as a result be no
difference between the amounts in BRL from which Tupy converted into foreign currency and the
amounts reached by the EC.  Note that no adjustments to the export price were made for packing andother expenses.
                                                     
41 Annex II, Annex 5, BRL-16.
42 Annex BRL 7, ECALLUR, TRANS.WT/DS219/R
Page E-84
122. For three other allowances, the EC used the monthly rates as mentioned in the Questionnaire
and not the exchange rates as used by Tupy.  This was the case for credit costs, warranty and
commission.
123. The justification for this is the following:
– the adjustment for credit costs is not based on real costs as found in the exporter's
accounts but is a notional cost based on the agreed payment terms.  As the EC
reconverted the export prices at the rates at the date of invoice the allowance for
credit cost should be based on the new export invoice values.  The EC therefore used
the monthly rates corresponding to the months in which the invoices were issued.
– for warranties a rate of 0.00031243 was used and for commissions a percentage of the
export value rather than the distribution of absolute amounts in order to calculate the
adjustments made.  Therefore it was considered also more appropriate to use monthly
rates of the months during which invoices were issued because any other method
would have distorted the rate or percentage.  In any event these two allowances wereminimal in absolute amounts and in relation to the total export value.
124. It should be noted that the use of the monthly EC conversion rates for the latter three
adjustments led to smaller adjustments to the export price than the conversion at Tupy’s exchange
rates.  As a result, the adjusted export price used to compare with the normal values was higher and
the dumping margin was lower, so that Tupy benefited from the use of the EC’s monthly exchange
rates.  The EC has prepared a document to illustra te the differences (Exhibit EC-25).  This listing
shows amongst others :
– the monthly exchange rates used by Tupy– the monthly exchange rates used by the EC– the amounts for respectively credit, warranty and commission in foreign currency as
reported by Tupy.
– the amounts for credit, warranty and commission converted in Real by using
respectively Tupy’s exchange rate and the EC’s exchange rate.
125. The totals on the final page show that:
– for credit the adjustment at Tupy’s exchange rate would have been 454.447,8 Real,
while the EC only made an adjustment for 398.900,0 Real.
– for warranty the adjustment at Tupy’s exchange rate would have been 4.658,00 Real,
while the EC only made an adjustment for 4.046,3 Real.
– for commission the adjustment at Tupy’s exchange rate would have been 70.987,4
Real, while the EC only made an adjustment for 58.427,4 Real.
                                                     
43 File ECALLUR, Tupy’s letter of 5 October 1999, EC-5.WT/DS219/R
Page E-85
Issue 11:"No proper dumping margin findings"("zeroing")
Question 95
The European Communities calculates the impact of the application of zeroing in this
investigation to be 2.73 per cent ( i.e. a dumping margin of 34.82 per cent as opposed to
32.09 per cent). Does Brazil believe that this is a "relatively limited impact"? (see EC first
written submission, para. 250) How would this consideration be relevant here?
126. The EC provides this information by way background to the case.
Issue 12: "No proper consideration of import volume trends"
Question 97
How, if at all, do the obligations in Articles 3.2 and 3.3 AD interrelate? Could Brazil
comment on the EC statement in paragraph 263 of  its first written submission that "…Brazil
denies … that cumulation applies in the operation of Article 3.2"?
127. The EC examined the relationship of Articles 3.2 and 3.3 at paragraphs 300 to 307 of its First
Submission.  The key question appears to be whether the consideration of volume and of price effects
that is required by Article 3.2 has always to be carried out on a country-by-country basis, or whetherthe authorities may consider cumulated data (assuming the requirements of Article 3.3 have been
fulfilled).
128. Article 3.3 says that, if its requirements are fulfilled, the authorities ‘may cumulatively assess
the effects of such imports’, that is the imports that are subject to simultaneous anti-dumpinginvestigation.
129. The question which arises is whether the steps required by Article 3.2 constitute an
assessment of the ‘effects’ of the allegedly dumped imports.  Article 3.2 speaks of ‘the effect of the
dumped imports on prices’, but does not use the word ‘effects’ in regard to volume.  However,
Article 3.5 refers to ‘the effects of dumping, as set forth in paragraph 2 and 4’.  It does not seem
plausible that this reference is merely to the issue of prices in paragraph 2.  For one thing, an increasein imports can quite reasonably be described as an ‘effect of dumping’.  Secondly, such an increase is
likely to be of particular relevance to the examination of causation which is the subject matter of
Article 3.5.  Consequently, since both the steps required by Article 3.2 constitute consideration of the
effects of dumped imports both are capable of qualifying under Article 3.3 for cumulative assessment.
130. Finally, as was observed in the EC’s First Submission, Article 3.3 has a specific condition
relating to the volume of imports from each country (it must not be negligible).  It seems improbable
that the drafters intended that the authorities should consider whether there had been a significant
increase  in imports from the individual countries when the only finding that they had to make was
that such imports should not be negligible .
Question 98
Does the data before an investigating author ity have to demonstrate that a significant
increase in imports from a particular source ha s occurred during the IP in order to satisfy
Article 3.2?  What is the significance – if any -- of the term “whether” (rather than “that”) in
the phrase "consider whether there has been a significant increase in  dumped imports" in
Article 3.2 AD?WT/DS219/R
Page E-86
131. The EC has addressed the first of these issues  in its answer to Question 97.  The meaning of
‘consider’ in Article 3.2 is examined at paragraph 256 of the EC’s first Submission.
132. The significance of the word ‘whether’ rather than ‘that’ in Article 3.2 is straightforward.  To
‘consider that’ there has been a significant volume increase, etc., is to hold the view that such anincrease has occurred.  To ‘consider whether’ there has been such an increase is to engage in an
examination of the issue.
Question 99
For the purposes of an injury analysis under Articles 3.2 and 3.3 AD, is it necessary for
a Member to establish that a significant increas e in the volume of dumped imports has occurred
with respect to imports from exporting countries  individually before and/or after proceeding to
a cumulative analysis? Why or why not? Commen t, including with reference to paragraph 12 of
the US oral statement.
133. The EC argues in paragraphs 302 to 307 of its First Submission that such a country-by-
country consideration of significant volume increase is not required by Article 3.2 if the conditions for
cumulation under Article 3.3 are satisfied.
134. The US argument in question seems broadly the same as that made at paragraph 304 of the
EC’s First  Submission.
Issue 13: "No proper consideration of alleged undercutting"
Question 100
What is the significance, if any, of the reference in Article 3.2 AD to “a” (rather than
“the”) like product?  And to domestic “p rices” (in the plural rather than singular)?
135. The reference to “prices” in the plural suggests that, as argued by the EC,44 Article 3.2 does
not require to calculate an overall margin of undercutting for the product under consideration, let
alone to use any specific methodology when calculatin g such margin (such as, for example, averaging
without “zeroing” the “overcutting” margins).  It supports the view that the existence of “significantundercutting” can also be considered by comparing the prices for individual sales or the average
prices for types or models of the product under consideration.
136. The reference to a like product (rather than the like product) has similar implications.
Furthermore, it suggests that the comparison does not have to include all domestic like products, butcan be limited to a representative selection of transactions or of models/types.
137. It is significant that Article 6.3(c) of the Agreement on Subsidies and Countervailing
Measures in dealing with the same issue uses the same wording as Article 3.2:
6.3 Serious prejudice in the sense of paragraph (c) of Article 5 may arise in any
case where one or several of the following apply:
…
(c) the effect of the subsidy is a significant price undercutting by the subsidized
product as compared with the price of a like product of another Member in the same
                                                     
44 EC first Submission, para. 268.WT/DS219/R
Page E-87
market or significant price suppression, price depression or lost sales in the same
market;
138. Unlike the Anti-Dumping Agreement, an explanation is provided:
6.5 For the purpose of paragraph 3(c), price undercutting shall include any case
in which such price undercutting has been demonstrated through a comparison of
prices of the subsidized product with prices of a non-subsidized like product supplied
to the same market.  The comparison shall be made at the same level of trade and at
comparable times, due account being taken of any other factor affecting price
comparability.  However, if such a direct comparison is not possible, the existence of
price undercutting may be demonstrated on the basis of export unit values.
139. This provision also suggests that a comprehensive calculation of prices of all sales is not
required.
Question 101
What is the significance, if any, of the referen ce to " the dumped imports" in Article 3.2
AD?
140. The panel in European Communities – Bed Linen45 found that the investigating authorities
can consider, for the purposes of the injury analysis, that all the imports made by a producer/exporter
found to be dumping are “dumped imports”.  This means that, in considering whether, “dumpedimports” undercut the prices of the Community producers, the EC authorities were not required to
distinguish between “dumped” and “non-dumped” imports of Tupy’s products.  The EC notes that, in
any event, Brazil has not made any claim to that effect.
Question 102
What is the significance, if any, of the EC assertion that the practical result of “zeroing”
in the consideration of whether there was sign ificant price undercutting in this case was de
minimis (0.01 per cent)?
141. It must be recalled that Brazil’s claim is concerned exclusively with the use of zeroing in this
investigation and not with the EC’s  practice of zero ing as such.  Accordingly, in order to substantiate
this claim Brazil must show that the use of zeroin g in this investigation was incompatible with the
obligation of the EC authorities to consider whether price undercutting was significant.  It is not
enough for Brazil to show that zeroing may be inconsistent with that obligation in other
investigations.
142.  Brazil seems to be arguing that by resorting to  “zeroing” the EC authorities failed to make an
objective examination of this issue.  The point made by the EC was that the objectivity of the
methodology used by the EC authorities in this case must be assessed in light of its results in this
investigation and not of the consequences that it might have in other circumstances.  The averaging
methodology used by the EC in this investigation yi elds a result which is virtually identical to the
result of another methodology which Brazil appears to consider as objective.  Whether the
undercutting margin is 39.77 per cent or 39.78 per cent is immaterial for the purposes of deciding
whether undercutting was significant.  The use of a methodology which did not affect the outcome of
the examination required by Article 3.2 in this investigation cannot be considered incompatible with
                                                     
45 Panel Report, European Communities – Anti-Dumping Duties on Imports of Cotton-type Bedlinen
from India (“European Communities – Bedlinen”) , WT/DS141/R, adopted 12 March 2001, as modified by the
Appellate Body Report, WT/DS141/AB/R, paras. 6.132 et seq..WT/DS219/R
Page E-88
that provision simply because the use of that methodology might affect that outcome in other
investigations.
Question 103
Unlike Article 2 of the AD Agreement in re lation to dumping, Article 3 contains no
specific guidance as to the methodology an investigator may use to consider price undercutting.
Comment.
143. The EC has commented on this issue in paragraph 268 of its Submission.
Issue 14: "No proper calculation of alleged undercutting margins"
Question 105
Is there a requirement under the AD Agreement, whether in Article 3.2 or elsewhere, to
adjust prices before comparison  in the context of injury?
144. Article 3.2 refers to “undercutting by the dumped imports as compared with the price of a like
product of the importing Member”.  As defined in Article 2.6, the concept of ‘like product’, which
sets the outer limits of comparison, is broad enough to include models that differ greatly in the
characteristics that affect purchasers’ choices.  Unless adjustments are made to take account of thedifferences, price comparisons between models that do not share the same characteristics will produce
arbitrary results.  An interpretation of the Agreement that permitted such comparisons would be
perverse.  These are not complex notions, but ones that are familiar to every shopper.
145. Consequently, the price comparison must take account of the various characteristics, etc., of
the product.  The Agreement does not state how this is to be done.  Price adjustment to take account
of differences between product models is one option, but the differences may be such that rational
criteria of adjustment are difficult to identify.  The alternative is to confine the comparison to those
imported models that are identical to ones sold by the domestic industry.  However, these may
constitute only a small proportion of the dumped imports .  In practice the EC authorities often apply a
combination of the two approaches.
146. The silence of the Agreement on this subject indicates that investigating authorities have
considerable discretion in deciding on the appropriate methodology.  This discretion is not compatible
with a requirement to adjust prices in every case.  There will undoubtedly be instances where there are
sufficient sales of identical models, or where there are no rational criteria for price adjustment.  On the
other hand, cases will also arise where there are few sales of identical models, but whenstraightforward criteria exist for adjusting prices  in order to make comparisons for the remaining
sales.  In these cases a complete refusal to base the comparison on appropriately adjusted prices would
constitute a breach of the obligation in Article 3.2 to consider the issue of significant price
undercutting.
Question 106
Article 3.1 AD refers to "prices on the domestic market".  Comment, in relation to the
nature of the consideration required under Article 3.2 AD.
147. The reference to the impact “on price s in the domestic market for like product s” rather than to
the impact “on the price in the domestic market for the like product” is a further indication that the
Agreement does not require the calculation of an overall undercutting margin for the product under
consideration based on the comparison of the price for the dumped imports with the price of the
domestic like product.WT/DS219/R
Page E-89
Issue 15: "No proper cumulation of imports"
Question 107
What is the meaning of cumulatively assessing the "effects" under Article 3.3 of the AD
Agreement?  What are the "effects" that can be  cumulated and where are these referred to in
the other provisions of Article 3?  Comment including with reference to para. 14 of the US oral
statement (to the extent it is relevant).
148. In paragraph 304 and footnote 97 of its First Submission the EC examined the various uses of
the words ‘effects’ and ‘impact’ in Article 3.  It foll ows from this examination that the EC agrees with
the analysis presented by the US.
149. Article 3.2 does not use the word ‘effects’ in relation to the volume factor.  However, it would
be contrary to common sense to deny that increased volume could be an ‘effect’ of dumped imports,
in the ordinary meaning of that word, and this is explicitly envisaged by the terms of Article 3.5(‘through the effects of dumping, as set forth in paragraphs 2 and 4’).  See also the response to
Question 97.
Question 108
With reference to paragraph 341 of the EC first written submission, would a breach of
Article 6.2 AD be possible where no breach of Articles 3.2 or 3.3 AD was found?
150. The reference to Article 6.2 in paragraph 341 of the EC Submission was an error.  No claim
of breach of Article 6.2 was made by Brazil in the context of Issue 15.
151. The EC intended to refer to Article 3.1.  It maintains that, since Brazil’s claim under
Article 3.1 was dependent on its claims under Article 3.2 and 3.3, and since the EC has refuted the
latter, the claim under Article 3.1 fails.
Issue 16: "Inappropriate consideration of injury indicators"
Question 109
Is the European Communities arguing that its evaluation of "growth" is implicitly
apparent in the final determination?  If so, on what basis?
152. In this context the EC is arguing that the exam ination of sales, profits, output, market share,
productivity, return on investments, and utilisation of capacity, all necessarily involved the question
of whether or not they were increasing, and the extent of such increases (or decreases), and that as a
consequence, at least in the circumstances of this investigation, it was examining the factor ‘growth’.
153. The EC is not aware of any significant elemen t of this factor which was not included in the
factors to which explicit attention was given by the investigators and recorded in the Provisional and
Definitive Regulations.
Question 110
Indicate in the record of the investigation the sources of information and the
methodology on which the statements and in formation in Exhibit EC-12 are based. In
particular:WT/DS219/R
Page E-90
• How was the statement in Exhibit EC-12 on "a bility to raise capital" derived from the
information given in "questionnaires and annual accounts"?
154. The assessment of ‘ability to raise capital’ was derived from the fact (confirmed by the annual
accounts) that the EC industry continued to invest in the product.
• How was the statement in Exhibit EC-12 on "wages" derived from the information
given in " annual accounts"? Explain the meaning of "allocation on the basis of turn
over"?
155. In the annual accounts are found entries for ‘salaries, wages, social security’ (they may
occupy one or more lines).  The sum of these lines was converted from local currency into EURO
with the annual conversion rate at the time.  The next step was to calculate the ratio of the (smaller)
turnover of the product concerned by comparison to the total turnover of the respective companies.
For example, if the turnover of the product concerned is 90 and the total turnover of the company is100, the ratio would be 90 per cent.  This ratio was applied to the overall salaries (calculated as
explained above).  In the given example, the wages taken into account for the proceeding would be
90 per cent of the total wages.  This was done first by company, and then a total was established by
adding up the figures of all six complainants.
• How was the statement in Exhibit EC-12 on "productivity" derived from the
information given in "questionnaires"?
156. Productivity was established as follows: annual production of the product concerned in tonnes
(derived from the verified questionnaire responses), divided by the number of personnel directly orindirectly dealing with the product concerned, as per year.  In order to establish the number of
personnel dealing with the product concerned as compared to other personnel, this derived from the
verified questionnaire responses.
• How was the statement in Exhibit EC-12 on "return on investments" derived from the
information given in "questionnaires and annual accounts"?
157. This was established according to the following formula: profit or loss for the product
concerned divided by the tangible fixed assets for the product concerned.  The actual profit or loss
came from the verified questionnaire replies.  The tangible fixed assets can be found in the annual
accounts.  They were converted into EURO and allocated on the basis of turnover as explained above.
This was done first by company, and then a total was established by adding up all six complainants'
figures.
• How was the statement in Exhibit EC-12 on "cash flow" derived from the information given
in "questionnaires and annual accounts"?
158. This statement was derived from the figures for profit or loss plus the differences between
opening stock and closing stock, with depreciation added.  These data can be found in the annual
accounts.  The results per individual company were converted into EURO and the ratio for turnover of
the product concerned was applied as explained above.  All the figures for the individual companieswere totalled.
• How and on what basis was the statement in Exhibit EC-12 on "magnitude of margin of
dumping" derived?
159. The EC takes it as a statement of the obvious that the price pressure on the products of the
domestic industry would have been lower if the margin of dumping had been lower.WT/DS219/R
Page E-91
Question 115
We note the questionnaire to domestic producers (Exhibit BRL-37 ff.) requests
information in section D2 concerning quantities and values of purchases/ imports of the productconcerned.  Does this pertain only to the produc t originating in the countries listed on the first
page of the questionnaire, or to all imports of the product concerned from all sources?
160 The producer questionnaire contains the following text: in section D2 ‘Purchases/imports of
the products from other sources’: If you purchase the product from independent parties, either
originating in the Community or in non-EC countries , for sale in the Community, please fill in the
following table …. .  It is therefore clear that all countries and not just the ‘countries concerned’ arecovered.  This information is necessary in orde r to assess any impact on the evaluation of the
company’s capacity as an EC producer.  (See for inst ance also section F22 relating to resale prices of
purchased products.)
Question 116
Does each questionnaire response by the domestic industry provide information on each
of the factors identified in the questionnaire? Provide a detailed response with reference to the
relevant provisions of the record of the investigation.
161. The information requested in the Questionnaires addressed to the domestic producers and
provided by each of them is summarised in the table below
Main information requested Confidential replies
Companies*
123456
A) General information on the company
Corporate information yes yes yes yes yes yes
Principal shareholders yes yes yes yes yes yes
Corporate structure of the company (including links
with other companies)yes yes yes yes yes yes
Financial accounts yes yes yes yes yes yes
B) Product concerned
Product specification: creation of Product Control
Numbersyes yes yes yes yes yes
Product comparability yes yes yes yes yes yes
C) Total sales
Total turnover yes yes yes yes yes yes
Main customers no yes yes yes yes yes
D) Production, Purchases and Stocks
Production and production capacity yes yes yes yes yes yesWT/DS219/R
Page E-92
Purchases/imports from other sources (in volume and
value)yes
**yes yes yes
**yes yes
Development of stocks (in volume and value) yes yes yes yes yes yes
E) Sales
Sales in volume and value (net of all rebates, discounts
and free of taxes)yes yes yes yes yes yes
F) Distribution system and selling prices
Distribution system and channels of sales yes yes yes yes yes yes
Price setting yes yes yes yes yes yes
Sales transactions in the EC during the investigation
period to unrelated customersyes yes yes yes yes yes
Sales transactions in the EC during the investigation
period to related customersyes yes yes yes yes yes
Credit notes yes yes yes yes yes yes
G) Cost of production
Manufacture of the product concerned yes yes yes yes yes yes
Costs of the product manufactured by the company
(allocation of costs, standard costs and variances, cost
of production per Product Control Number)yes yes yes yes yes yes
Related suppliers yes yes yes yes yes yes
H) Profitability
Profitability of EC sales to unrelated customers yes yes yes yes yes yes
Minimum profit required yes yes yes yes yes yes
Investments yes yes yes yes yes yes
I) Employment
Employment of the total company and attributed to the
product concernedyes yes yes yes yes yes
* Legenda:
1 = Atusa Accesorios de Tuberìa S.A. (Spain)
2 = Crane Fluid Systems (United Kingdom)
3 = Ferriere e Fonderie Di Dongo S.p.A. (Italy)
4 = Georg Fischer Fittings GmbH (Austria)
5 = Raccordi Pozzi Spoleto (Italy)
6 = R. Woeste & Co. GmbH & Co. Kg (Germany)
yes = a reply has been provided by the company
no = no reply has been provided by the company
yes**  = the information has been provided during the investigationWT/DS219/R
Page E-93
Question 117
Would a breach of Article 3.4 AD necessarily also lead to a breach of Article VI of the
GATT 1994?
162. The EC believes that this would normally be the case because of the link established by
Article 3.1.
Question 118
Does Brazil's allegation concerning cumulation and injury on page 205 of its first written
submission relate to the obligations under Article 3.4 or 3.5? Substantiate your response.
163. The EC does not understand this question.Question 119
Could information requested by the European Communities in the questionnaires to
domestic producers relating to the "effect of continued imports" support an investigating
authority's evaluation of the magnitude of the margin of dumping within the meaning of
Article 3.4 AD ? Did it in this case?
164. The information collected under this rubric is intended to assist the investigating authorities in
determining the ‘Community interest’, albeit that th is topic is covered elsewhere in the Questionnaire
(under heading K).  The information would be relevant were the investigating authorities addressing
the issue of ‘threat of injury’, which was not the case here.
Question 120
How can the Panel verify whether and to what extent the European Communities
investigating authorities examined  the issue of outsourcing and ownership links of the domestic
industry with producers located in countries not subject to the investigation? Please indicate the
relevant parts of the record of the investigation.
165. Information regarding ownership links and outsourcing was contained in the Questionnaire
answers on company structure and imports, and information on investments was contained in the
annual accounts of the companies.  The figures found during verification in the companies’ accounts
books confirmed this information.  The books would have recorded and explained any majorinvestments in other companies.
166. The results of the investigation are reported in recitals 134 and 174 of the Provisional
Regulation, and recitals 65 et seq., and 106 et seq., of the Definitive Regulation.  The EC authorities
also addressed the issue in the ‘Transparency Le tter’ of 20 July 2000 (Exhibit BRL-18, point 7.1).
167. It should be said that, with the exception of Bulgaria, and (to some extent) Turkey, the
allegations of outsourcing, etc., were never substantiated.
Question 121
Indicate the relevant parts of the record of the investigation dealing with sales outside
the European Communities.WT/DS219/R
Page E-94
168. Data on exports of the Community industry were contained in the companies’ answers to the
Questionnaires.  These figures were confirmed by the EC authorities during the on-the-spot
verification.  The results of this examination are recorded in the ‘Transparency Letter’ (point 6.4).
They are reflected in the comments on stocks in the Provisional and Definitive Regulations.
Issue 17: "Inappropriate establishment of causation"
Question 126
What relevant material may guide a pane l's consideration concerning the issue of
"attribution" under Article 3.5 AD?
169. The EC reaffirms that the Panel’s task is not to attempt a de novo  determination of the issue
of causation and attribution, or even to determine what an ideal consideration would have consisted
of, but to determine whether the EC authorities have correctly applied the law, have established the
facts properly, and have evaluated those facts in an unbiased and objective manner.
170. Consequently, the material that guides the Panel’s consideration should be that considered by
the investigating authorities.
Question 127
What type of economic analysis would an  investigating authority actually need to
perform to "separate" and "distinguish" between each distinct causal factor?
171. For the same reasons that the EC has given in its previous answer, the EC’s view is that the
proper function of the Panel is to review the analys is carried out by the investigating authority.  The
process of separating and distinguishing between causal factors is an aspect of the evaluation of facts
in terms of Article 17.6(i).
172. This analysis (which was reported in recitals 166 to 176 of the Provisional Regulation, and
recitals 106 to 113 of the Definitive Regulation) satisfies the requirements of Article 3.5
Question 128
If a product is "dumped" does the reason for that dumping (e.g. a possible comparative
advantage) matter?
173. The EC assumes that this question is raised in the context of the issue of causation.  That
being the case it is not aware of any way in which the ‘reason’ for the dumping could be relevant, if
by ‘reason’ the Panel means a factor that facilitates or encourages dumping by an exporter.
174. The EC does not accept that comparative advantage could be a ‘reason’ for dumping, rather it
is a reason why an exporter might be able to undercut domestic producers without dumping.  Thebenefits of comparative advantage can be enjoyed by domestic customers as well as those in export
markets.  The ‘reason’ for dumping is more likely to derive from the degree of protection enjoyed by
the exporter in its home market.
Question 129
How, if at all, do the standards of "signifi cant contribution" (e.g. Definitive Regulation,
para. 113) and "not such to have broken the causal link" (e.g. Definitive Regulation, para. 111)
relate to a genuine and substantial relationship of cause and effect?WT/DS219/R
Page E-95
175. The EC notes that the Appellate Body has employed the phrase ‘genuine and substantial
relationship of cause and effect’ to describe the causal link that must be established for the purposes
Article 4 of the Safeguards Agreement.46
176. The EC has no difficulty in agreeing that the causal link to be established in accordance withArticle 3.5 must be both genuine and substantial.  In fact, the exclusion of links that were not genuine
or were insubstantial would hardly be controversial.
177. In recital 113 of the Definitive Regulation the EC said ‘any substitution effect cannot have
significantly contributed to the injury suffered by the Community industry’. It should not be assumed
that, had there been a significant contribution from the ‘substitution effect’, the necessary causal
connection between dumped imports and injury would have ceased to exist.  However, in the absenceof any significant contribution the question did not even arise.  In other words, the process of
allocating causes to injuries need not be embarked upon in the case of a factor which made no
significant contribution to injury.  Although the notion of ‘significant contribution’ is here applied to
other causes, it is in essence no different from the notion of ‘substantial cause’ that the Panel by its
question implies should be applied to the dumped imports.
178. In recital 111 the EC said that ‘even if imports from other third countries may have
contributed to the material injury suffered by the Community industry, it is hereby confirmed that
they are not such to have broken the causal link between the dumping and the injury found.’ This
statement was made as a summing-up of an examination of the effects of imports from a number ofthird countries.  As stated above, the phrase used by the Appellate Body reflected the conclusion of an
analysis which distinguished between the different causes of injury.  In recital 111 the EC was
summing up just such an analysis.  If the consequences of third-country imports had been sufficiently
great they would have broken the causal link between the dumping and the injury found.  The EC
authorities found this not to be the case.  In any event, their conclusion fits within the framework of
analysis described by the Appellate Body.
Question 130
What does it mean for a factor to be "known" in the sense of Article 3.5 AD? Comment
on the phrase "all relevant evidence before the authorities" in the sense of Article 3.5 AD.
179. Article 3.5 states that ‘The authorities shall also examine any known factors other than the
dumped imports which at the same time are injuring the domestic industry …’.  At paragraph 428 of
its First Submission the EC explains that the phrase ‘any known imports’ indicates that the onus lies
on interested parties to raise issues during the course of the investigation.  As explained in that
Submission, this interpretation has been adopted by two WTO panels.
180. The second sentence of Article 3.5 states that ‘The demonstration of a causal relationship
between the dumped imports and the injury to the domestic industry shall be based on an examination
of all relevant evidence before the authorities.’ This rule requires the authorities not to disregard the
evidence that has been presented to them.
                                                     
46 Appellate Body Report, United States – Definitive Safeguard Measures on Import of Wheat Gluten
from the European Communities (“United States – Wheat Gluten Safeguards”), WT/DS166/AB/R, adopted
19 January 2001, para. 69; Appellate Body Report, United-States – Safeguard Measures on Imports of FreshChilled or Frozen Lamb Meat from New Zealand and Australia (“United-States – Lamb Safeguards”),WT/DS177/AB/R, WT/DS178/AB/R, adopted 16 May 2001, para. 168.WT/DS219/R
Page E-96
Question 131
The European Communities has relied on info rmation that differs from Eurostat data.
How could an interested party verify the accuracy  of the information relied on?  Comment, with
reference to paras. 434-446 and 447-464 of the EC's first written submission.
181. The EC applies confidentiality rules in accordance with Article 6.5.  Like most WTO
Members, it does not allow interested parties in anti-dumping investigations to see confidential data of
other parties.  As a consequence situations arise frequently where an interested party is unable to
verify the information that the authorities rely  on for their decision.  For example, the domestic
producers cannot verify that the dumping margin calculation is based on the information provided by
the exporters, let alone verify that such information is accurate.  For that, it would be necessary thatrepresentatives of the domestic producers were present during the on-the sport verification The
difficulties that are thereby created for parties are to some extent reduced by the provision of non-
confidential versions of the protected information, such as tables showing indexed data rather than
actual import, etc., figures.
182. In the two sections of the EC’s First Subm ission mentioned by the Panel the EC made use,
respectively, of confidential information from EC producers, and of Eurostat data.  The EC’s view
(First Submission paragraph 444) is that information collected directly from producers (and other
interested parties) is preferable (even if it is confidential) because it is subject to verification.  Such
information was available in regard to the exports made by the domestic producers (the subject of thefirst section) but not in relation to the total volume of third-country imports (the subject of the second)
because not all such imports were made by interested parties.  Consequently in the latter case it was
necessary to have resort to the second-best source of information, Eurostat.
Issue 18: "No timely opportunities to see all relevant information"
Question 136
How, if at all, might Article 17.4 AD be relevant here? Provide reasoning.
183. Brazil appears to challenge the provisional regulation (see question 132).  If so, it would have
to show that the requirements of the last senten ce of Article 17.4 are met.  In any event, the
provisional measure was no longer in force when the panel was established.  According to WTO
practice,47 only those measures that are in force at the time of establishment of the panel can be the
subject of dispute settlement.
Issue 19: "No proper information on matters of fact and law"
What is the relationship between the substa ntive provisions regarding the determination
on dumping, injury and causation (Articles 2 and 3) and the transparency obligations under
Article 12?  Would a violation of the substantive provisions automatically constitute a violation
of the Article 12?
                                                     
47 Panel Report, United States – Standards for Reformulated and Conventional Gasoline (“United
States – Gasoline”) , WT/DS2/R, adopted 20 May 1996, as modified by the Appellate Body Report,
WT/DS2/AB/R, para. 6.19; Panel Report, Argentina – Measures Affecting Imports of Footwear, Textiles,
Apparel and Other Items (“Arge ntina – Textiles and Apparel”) , WT/DS56/R, adopted 22 April 1998, as
modified by the Appellate Body Report, WT/DS56/AB/R, para. 6.14.WT/DS219/R
Page E-97
184. The EC is in agreement with the follow ing observations made on this issue by the Bed Linen
panel:48
Having found a violation of the substantive requirement to consider all the factors set
forth in Article 3.4 in assessing the impact of imports, the question of whether thenotice of either the preliminary or affirmative determination of injury is "sufficient"
under Article 12.2 is immaterial.  A notice may adequately explain the determination
that was made, but if the determination was substantively inconsistent with the
relevant legal obligations, the adequacy of the notice is meaningless.  Further, in our
view, it is meaningless to consider whether the notice of a decision that is substantive
inconsistent with the requirements of the AD Agreement is, as a separate matter,
insufficient under Article 12.2.  A finding that the notice of an inconsistent action isinadequate does not add anything to the finding of violation, the resolution of the
dispute before us, or to the understanding of the obligations imposed by the AD
Agreement.
Question 139
What is the scope of Article 12.2 and 12.2.2? Do these provisions cover only the public
notices preliminary and final determinations, or do they also cover other documents in the
investigation, i.e. disclosure documents and tran sparency letters?  Can the disclosure documents
and transparency letters be considered as a "separate report" under Article 12.2 and 12.2.2?
185. The EC has addressed these issues in paragraph 216 of its First Submission.  Articles 12.2 and
12.2.2 are explicitly concerned with public notices.  They relate explicitly to preliminary and final
determinations.  The ‘separate report’ is to be ‘made available’.  Footnote 23 states that ‘Where
authorities provide information and explanations under the provisions of this Article in a separate
report, they shall ensure that such report is readily available to the public’.  The disclosure documentsand transparency letters contained information intended for the recipients only.  They are not covered
by these provisions.
Question 140
Do the parties believe that clerical errors in the public notices of preliminary or final
determinations may constitute grounds for a violation of Article 12.2 and 12.2.2?
187. Errors which are transparent and do not prejudice the rights of the interested parties (which is
the case in this dispute) provide no legal basis for calling into question the propriety of a Member’s
measures.
Question 141
What is the relationship between Articles 12.2 and 12.2.2 and the provisions concerning
the protection of confidential information in Article 6.5?
187. The publication obligations in both Articles 12.2.1 and 12.2.2 contain the qualification ‘due
regard being paid to the requirement for the protection of confidential information’.  The nature of this
requirement is elaborated in Article 6.5.  However, confidentiality is not the sole boundary to the
publication obligations of Article 12.  Article 12.2 requires publication ‘in sufficient detail’, and
                                                     
48 Panel Report, European Communities – Bedlinen , para. 6.259. The same view is expressed in
Article 21.5 Panel Report, Mexico — Anti-Dumping investigation of high fructose corn syrup (HFCS) from the
United States , WT/DS132/RW, circulated 2001, as confirmed by the Appellate Body Report,
WT/DS132/AB/RW, para. 6.40.WT/DS219/R
Page E-98
Article 12.2.1 speaks of ‘sufficiently detailed explanations’.  These provisions anticipate that some
amount of detail will not be included in the published texts.  There are also the qualifications implicit
in the phrase ‘issues … considered material by the investigating authorities’ (see the following
Question).
Question 142
What criteria may be relevant in deciding which issues of fact and law can be considered
“material by the investigating authorities” under Article 12.2?
188. The EC is not aware of any general criteria th at can be invoked in this context.  The issues
that arise are ones of fact which will depend on the circumstances of individual cases.
Other
Question 143
Could the EC clarify the meaning of the Article 11.3 of the EC Basic Regulation on
whether the exporter has the right to have a review or has the right to request  a review?
189. Article 11.3 of the EC’s Basic Anti-Du mping Regulation states as follows:
The need for the continued imposition of measures may also be reviewed, where
warranted, on the initiative of the Commission or at the request of a Member State or,
provided that a reasonable period of time of at least one year has elapsed since the
imposition of the definitive measure, upon a request by any exporter or importer or by
the Community producers which contains sufficient evidence substantiating the needfor such an interim review.
An interim review shall be initiated where the request contains sufficient evidence
that the continued imposition of the measure is no longer necessary to offset dumping
and/or that the injury would be unlikely to continue or recur if the measure were
removed or varied, or that the existing measure is not, or is no longer, sufficient to
counteract the dumping which is causing injury.
In carrying out investigations pursuant to this paragraph, the Commission may, inter
alia, consider whether the circumstances with regard to dumping and injury have
changed significantly, or whether existing measures are achieving the intended results
in removing the injury previously established under Article 3.  In these respects,
account shall be taken in the final determination of all relevant and duly documented
evidence.
190. In the light of the facts of the present disp ute, the EC assumes that the Panel is primarily
concerned with the situation prior to the elapsing of the one-year period.
191. The second paragraph of Article 11.3 establishes that, provided certain conditions are
fulfilled, the authorities have a duty to carry out a review.  Thus it can be said that in thesecircumstances an exporter which requests a review has an enforceable ‘right’ to have that review
carried out.
192. Prior to the expiry of the one-year period no such obligation or right exists, but the
Commission has the discretion to initiate a review on its own initiative.  The circumstances in which itshall exercise this initiative are not defined.  They do not exclude a request by an exporter.  In this
sense it can be said that the exporter has a right to request  a review during this period.  The EuropeanWT/DS219/R
Page E-99
Court of Justice could then review whether the Commission had acted within the bounds of its
discretion.
Question 144
Can the EC confirm that if Tupy has request ed a review within the year following the
imposition of the anti-dumping duties the Commission would have exercised discretion on the
granting of such a request?
193. A request for a review made by Tupy within the one-year period would have been seriously
considered.  On 10 August 2001 the Commission wrote to Tupy inviting it to request an interim
review.  Tupy replied on 14 August, observing that it had no right to an interim review.  In fact the
one-year period expired on 19 August.
194. In response to a request from one of the other exporters, but basing its action on a special
procedure introduced in 2001 for taking account of the results of WTO dispute rulings, the EC has
opened a review of the anti-dumping duties that are the subject of this dispute.49  A copy of the Notice
of initiation is provided as Exhibit EC-26.  This review is ‘limited in scope to the examination of
dumping by those exporting producers in the countries concerned whose duty rates are based on a
dumping methodology at issue in the [WTO Bed Linen ] reports, and which submit a full questionnaire
reply within the time limits’.
195. Since the review examines data for the period 1 January 2001 to 30 September 2001, it would
have provided an opportunity to evaluate Tupy’s cl aims regarding the effects of the devaluation.  Yet,
even though the EC Commission has granted two ex tensions of the deadline for co-operation, Tupy
has decided not to co-operate, thus rendering it impossible to ascertain the alleged effects of the
devaluation after the original investigation period.
Also, if the request had been made after the year following the imposition of the anti-
dumping duty would the Commission have automatically granted the request?
196. If Tupy had made a request for a review fo llowing the one-year period that request would
have been accepted provided the conditions in Article 11.3 regarding ‘sufficient evidence’ were
fulfilled.
Question 149
Are WTO dispute settlement consultations relevant in determining whether or not a
claim falls within a panel’s terms of reference?  Why or why not?  In general, is there any kind
of verifiable record kept of WTO dispute settle ment consultations?  Is there any such record of
the consultations in this dispute?  Please  cite any relevant material in responding.
197. In general a panel’s terms of reference are determined by the decision of the DSB that
establishes it.  Consultations are not intended simply as a first step in panel proceedings, but as analternative means of dispute settlement.  Consequently they may cover a wide range of issues that are
never expected to come before a panel.  The independent nature of consultations would be
undermined if they were seen as helping to define a panel’s terms of reference.  This is not to say that
consultations can never have relevance to the terms of reference – the Appellate Body has used
evidence of the parties’ consultations to show that  they understood the meaning of terms in the panel
request.
50 But their influence is at most indirect.
                                                     
49 EC Official Journal , C342/5, 5 Dec. 2001.
50 Panel Report, European Communities - Customs Classification of Certain Computer Equipment
(“European Communities – Computer Equipment”) , WT/DS62/R, WT/DS67/R, WT/DS68/R, adopted 22 JuneWT/DS219/R
Page E-100
198. An additional consideration is that one of the functions of a panel request is to give notice to
third parties, which may not have participated in the consultations, e.g. in the case of Article XXIII
consultations.
199. The EC keeps some records for its own purposes of the substance of consultations in which it
is involved.  In general no attempt is made to draft a jointly-agreed record.
Question 150
In this case, was the information relating to the examination by the EC authorities of the
issue of outsourcing and links the EC industry may have with producers located in countries notsubject to the investigation “confidential” for the purposes of the EC investigation?
200. The EC authorities had evidence of EC producers importing the product under consideration
from third countries in respect of two countries only, Bulgaria and Turkey.  The exact relationships
between the EC companies concerned  and both the Bulgarian and the Turkish plant/producers and the
exact amount of their imports were considered confidential.
Question 151
Assume that the complaining party points to information that it submitted in the
investigation and that is on the record of the inve stigation.  The complaining party alleges that it
does not have access to any additional informatio n on the issue, nor to any indication that the
investigating authority examined this informatio n or sought additional information.  How can
the complaining party (and the Panel) assess whether and to what extent the investigating
authority examined the information?
201. The complaining party can ask the defending Member to provide information, and the Panel
is empowered under Article 13 of the Dispute Settlement Understanding to request information
regarding the examination that the investigating authority has conducted.
EXHIBITS
Exhibit EC-18 Table dmsalur241043.
Exhibit EC-19 Copy of invoice number 203886.
Exhibit EC-20 Handwritten note, 21-23 September 1999.
Exhibit EC-21 Listing of all exports allowing for tax credit during 1998.
Exhibit EC-22 Tupy document concerning payments of commissions to Tupy
Europe.
                                                                                                                                                                    
1998, as modified by the Appellate Body Report, WT/DS62/AB/R, WT/DS67/AB/R, WT/DS68/AB/R, paras.
70 et seq.WT/DS219/R
Page E-101
Exhibit EC-23 Tupy invoice to Jannone, Italy.
Exhibit EC-24 Data on Tupy’s export sales showing totals.
Exhibit EC-25 Data on Tupy’s export sale s showing effect of conversion rates.
Exhibit EC-26 Notice of Initia tion of Review, 5 Dec. 2001.WT/DS219/R
Page E-102
ANNEX E-4
REPLIES OF THE EUROPEAN COMMUNITIES
TO QUESTIONS OF BRAZIL
14 May 2002
1. With reference to the construction of normal value, the Provisional Regulation states, in
the case of constructing normal value:
“(26)(…), in accordance with Article 2(3) of the basic Regulation, normal value
was constructed by adding to the manufacturing costs of the exported types,
adjusted where necessary, a reasonable percentage for selling, general and
administrative expenses (“SG&A”) and a reasonable margin of profit.  To thisend, the Commission examined wheth er the SG&A incurred and the profit
realized by each of the exporting producers concerned on the domestic market
constituted reliable data.
(27) Actual domestic SG&A expenses were considered reliable when the
domestic sales volume of the company concerned could be regarded as
representative when compared  to the volume of export sales to the Community.
The domestic profit margin was determined on the basis of domestic sales made
in the ordinary course of trade, i.e., when these sales to independent customers
at prices equal to or above the cost of production represented at least 10 per cent
of the total of domestic sales volume of the product concerned made by the
company concerned.  (…)” (emphasis added)
(a) Could the EC confirm that, if the do mestic sales were representative, sales of
types that were not made in the ordinary course of trade (unprofitable sales)
were included in the basis for the determination of SG&A?
Domestic sales of types that were not made in the ordinary course of trade were not included
in the basis for the determination of SG&A expenses.  The amounts for SG&A expenses and forprofits were both based on actual data pertaining to production and sales in the ordinary course of
trade of the like product by the exporting producer under investigation, as prescribed by Article 2.2.2.
As explained in paragraphs 122 to 127 of the EC’s First Submission, this is demonstrated by
the figures contained in the Provisional disclosure and the Definitive disclosures.
1
(b) In the case of an affirmative answer, considering that sales of types that were not
considered to be made in the ordinary co urse of trade were included in the basis
for SG&A expenses determination, but were not included in the basis for profit
margin determination, does the EC reaffirms that the same method forcalculating of SG&A expenses and profit margin were adopted?
Since the same method was used to determine both SG&A expenses and profit, this question
is irrelevant.
                                                     
1 Annex II, Annex 3, page 28, BRL-11 and BRL-16.WT/DS219/R
Page E-103
2. In its first submission, the EC informed that “the total of COM [cost of manufacturing],
SG&A and profit corresponds to the value of sales made in the ordinary course of trade”
(par.124, p. 30, THE ECFS) and that “both SG&A and profit were based on the 1260 types of
the like product sold on the domestic market” (par.127, p. 31, ECFS, emphasis added).
Does the EC confirm that the sales of the 1,260 types were made in the “ordinary course
of trade”? If so, why was the normal value constructed for 36 types2 that domestic sales were
considered as being representative?
2 The number 36 results from the difference between 602 types that were sold on the
domestic market in sufficiently representati ve quantities and 566 types for which it was
concluded that the normal value could be based on domestic prices of identical types, mentionedin the Disclosure Preceding Provisi onal Regulation (BFS, p.51).
At paragraph 117 of its First Submission the EC explained that, in accordance with
Article 2.2.2, the constructed normal value was based on SG&A expenses and profits of domestic
sales in the ordinary course of trade of all types of the like product.
The EC has reviewed that data and finds that the number of types sold on the domestic market
was 1,261 rather than 1,260 as stated in its Submission.  Of these 1,261, 68 types (not 36), were found
not to have been sold in the ordinary course of trade and were excluded from the calculation.  SG&A
expenses and profit were thus derived from data relating to 1,193 types sold on the domestic market inthe ordinary course of trade.  The EC’s methodol ogy and the data were provided to Tupy in the
Definitive disclosure.
2 The data were also provided to Tupy on a CD-ROM.
(Issue 5 –Normal Value – Inappropriate Product Types)
3. Could the EC confirm the data  presented in the table below?
Number of Types Code 12 Code 18
1. Types Exported to
the EC1,375 1,092 283
2. Identical Types (IT)
Sold in the DomMarket653 653 0
 2.1. IT –
representative and
profitable sales566 566 0
 2.2. IT –
representative andunprofitable sales36 36 0
 2.3 IT –
unrepresentative and
profitable sales45 45 0
2.4. IT –
unrepresentative andunprofitable sales66 0
3. Non Identical Types
sold in the DomesticMarket722 436 286
The correct data are as follows:
                                                     
2 Annex II, Annex 3 , BRL-16.WT/DS219/R
Page E-104
Number of
typesCode 12 Code 18
1. Types exported to the EC. 1,375 1,092 283
2. Identical types sold in the
domestic market.668 668 0
2.1 Identical types – representative
and profitable566 566 0
2.2 Identical types – representative
and unprofitable36 36 0
2.3 Identical types –
unrepresentative and profitable62 62 0
2.4 Identical types –
unrepresentative and unprofitable
sales440
3. Non identical types sold in the
domestic market. (This is
understood as types exported whichwere not sold on the domestic
market)707 424 283
4. Could the EC confirm whether it has identi fied any export sales to the EC of types
initiating with 68 and 69 during the POI?
The EC did not find any sales for export to th e EC of types starting with codes 68 or 69
during the investigation period.
5. Could the EC indicate what was the evidence presented by the Brazilian exporter to
demonstrate that types initiating with 79 co de were not a like product and in which way it
differs from the evidence that was presented related to 68 and 69 product types?
Product types with code 79 :
Tupy neither requested nor contested the exclusion of product types starting with code 79
from the scope of the investigation, nor did it present evidence to demonstrate that they were not a
like product.  The reasons why the product scope was limited to threaded malleable cast iron tube orpipe fittings are set out in recitals (10) and (11) of the Provisional Regulation and in the Provisional
disclosure document.
3
In its Questionnaire response Tupy gave a description of its product coding system4, but did
not mention product types with code 79.  As the case-handlers noticed such types in Tupy’s domesticsales (twelve types starting with code 79 of which 1.502.207 units were sold), Tupy, on request,
provided corrected information during the on-the-spot verification.  This explained that product types
with code 79 were ‘Malleable iron – Special Meikon Mark’ and added to the finishing codes reported
in the reply to the questionnaire which were 3-BSP Thread and 4-NPT Thread three additional codes
(0-raw mat-deburring; 1-semi-machined part; 2-machined  part).  Of the twelve ‘79’ types sold on the
domestic market, six (accounting for 95.842 units sold) were reported to be BSP threaded (finishing
code 3), and six (accounting for 1.406.365 units sold) were reported to be raw part-deburring.
                                                     
3 Annex I, paragraph 2.1, BRL-11.
4 Section B.2.3, BRL-5.WT/DS219/R
Page E-105
Product types with code 79 were not mentioned in Tupy’s commercial brochures of malleable
cast iron pipe fittings.
While discussing the technical aspects of the products sold by Tupy during the on-the-spot
verification Tupy explained that all ‘79’ types were unthreaded, and were sold to a single customer,
Meikon, on an OEM basis.  In fact, these product types were not fittings but were reported as such
because they were produced on the same production line and fell under the same CN code.  They were
not used as a fitting but as a tooling for making threads in plastic tubes.  They were re-exported by
Meikon in South-American markets.
In conclusion, the types starting with code 79 we re all unthreaded and were excluded from the
product definition for this reason.  The fact that they were not used as fittings but as tooling and that
they were not consumed on the Brazilian market but exported to other South-American markets, could
have been used as additional reasons to exclude them from the product scope of the proceeding.
Product types with codes 68 and 69 :
Tupy neither requested the exclusion of product types with codes 68 and 69 from the scope of
the investigation nor contested their inclusion.  Although Tupy requested an adjustment for physical
differences when comparing normal value and export price, the fact that domestic sales prices of ‘68’
and ‘69’ types were not used to determine normal value rendered such adjustments unnecessary.
Tupy did not make specific arguments during the proceeding to support exclusion of these
product types.  They were included in the types reported by Tupy in its reply to the Questionnaire.
Unlike the ‘79’ types, in Tupy’s commercial brochu res they appeared alongside the ‘12’ types, and
were described as ‘Malleable iron pipe fittings’.
The differences between ‘12’ and ‘18’ types, on the one hand, and ‘68’ and ‘69’ types on the
other, lie mainly in the threading: the former are BSP threaded and the latter are NPT threaded.  While
the pressures that fittings with ‘12’, ‘18’ and ‘69’ types can resist are broadly the same,5 fittings with
code 68 can resist a higher pressure.
All these types were considered to be like products because they have the same basic physical
and technical characteristics, and the same uses, despite differences in sizes, shape, surface finishing
and grade of cast iron.  Specific differences in threading, which were claimed to exist by Korean
exporting producers and were examined by the EC, were not considered sufficient to exclude certain
types from the product scope.6
(Issue 9 – No proper adjustment for packing costs)
6. Paragraph 228 of EC’s First Submissions reads:
“ Regarding the conversion of the amount for transport there is a precise, but
quite technical, reason why the monthly rate was used.  The EC will gladly
provide this explanation, but at this stage of the proceedings merely contends
that the issue is de minimis since transport costs were less than 0.5 per cent of the
total sum”
                                                     
5 Commercial brochure in Tupy’s reply to the questionnaire, BFL-5.
6 Provisional Regulation, recitals 17 to 19.WT/DS219/R
Page E-106
(a) Could the EC explain the reason wh y the monthly rate was used in the
conversion of the amount for transport in stead of the rate of exchange on the
date of sale, as established by Art. 2.4.1?
Contrary to the precise instructions in th e Questionnaire the allowances claimed on export
prices were reported by Tupy in the foreign curren cy of the respective export invoices, rather than in
Brazilian Real.
In order to convert the allowance for transport  from foreign currency into Real, the EC used
the same conversion rate that Tupy has used to convert the amounts from Real into foreign currency.
Tupy reported these exchange rates in the file ECALLUR, column ‘EXCHANGE’, on the CD-ROM
accompanying their letter of 5 October 1999.  The method applied by the EC guaranteed that theamount in Real made as an adjustment (50.200 BRL) corresponded to the amount booked for inland
transport in Tupy’s accounts.
(b) Could the EC confirm wh ether the monthly rate was used only regarding the
conversion of the amount for transport? Was the monthly rate used regardingthe conversion of the amount for other allowances?
See the answer to the Panel’s Question 88.
(Issue 10 – Punitive Sampling)
7. Could the EC explain why it decided to comp are domestic and export prices of a sample
of 20 types, instead of comparing the prices of the 566 types that sales were representative and
were made in the ordinary course of trade? Was not the data related to the sales of those 566
types available to the investigating authorities?
The EC has addressed this issue in answering the Questions posed by the Panel (numbers 57
and 67).WT/DS219/R
Page E-107
ANNEX E-5
RESPONSE OF THE UNITED STATES TO QUESTIONS
OF THE PANEL TO THE THIRD PARTIES
7 January 2002
Q1. What is the significance, if any, of th e phrase “prices in the domestic market” in
Article 3.1?
Reply
1. The phrase reflects that the injury determinati on involves an examination of conditions in the
domestic market of the importing Member.  Wher eas the dumping determination under Article 2
involves a comparison of the price of the exported products with the price for the comparable product
when sold in the exporting Member’s home market or in a third country market, the injury
determination focuses on the volume, price effects and impact of the dumped imported product on
domestic producers in the importing Member’s market .
Q2 What is the significance, if any, of  the refe rence to “the dumped imports” in Article 3.2?
Reply
2. The “dumped imports” referenced in Article 3.2 and throughout Article 3 refer to all imports
of the product from the countries subject to the investigation, other than those goods for which there
has been a negative dumping determination.  The term must be read so that it has meaning as used
throughout Article 3, specifically in light of the framework of the injury determination.  In this
respect, the Agreement requires investigating authorities to examine, on one hand, the volume andprice effects of  the dumped imports , and on the other, all relevant economic factors having a bearing
on the state of the domestic industry.  Through this overlapping examination of both the dumped
imports  and the domestic industry factors, the inve stigating authorities examine the “consequent
impact” of  those dumped imports  on the domestic industry.
1
3. “The dumped imports” referenced in Article 3 are neither confined to particular transactions
which have been examined for dumping determinations nor limited temporally to the period covered
by the dumping determination.  This interpretation is consistent with the Agreement's recognition that
it will be impracticable in some cases to make individual dumping determinations for each known
exporter or producer;  in those cases, the authorities may limit their dumping examination to either a
sampled selection or the largest percentage of the volume of exports from the subject county which
"can reasonably be investigated".2  In addition, the Agreement allows a presumption that the
companies whose sales are not specifically examined to compute a dumping margin also have been
made at dumped prices if the examined companies’ sales reveal dumping.  In each of the
circumstances illustrated above, the dumping determination would not be specific to individual sales
of the subject imports in the importing member's domestic market, and all the imports either
specifically subject to their own calculated margin  or to a presumptive margin based on an “all-others
rate” should be treated as “dumped imports” for purposes of the injury determination.
                                                     
1  See Articles 3.1 and 3.3.
2  See Article 6.10.WT/DS219/R
Page E-108
4. Furthermore, if "the dumped imports" examined under Article 3.2 were limited to those
covered by the precise transactions examined in the dumping determination, then an importing
Member would not be permitted to consider for injury purposes the volume and price effects of  any
imports that fall outside the typical twelve month period used by most investigating authorities as the
period of investigation for determining dumping.3  Whereas the determination of dumping normally
need not consider trends over time, the requirements of Article 3.1 concerning a determination of
injury necessarily contemplate that the importing Member will gather information covering more than
one year in order to evaluate volume and price changes.4  An importing Member’s consideration of
whether there have been significant absolute or relative increases in the volume of dumped imports
and of whether the dumped imports have to a significant degree depressed or suppressed prices for the
like product in the domestic market must be made in the context of an appropriate time frame, which
will almost always extend longer than the period of investigation for making a dumping calculation.Depending on the circumstances, volume and price effects resulting from subject imports may be
immediate or only evident over a longer period of time.  Furthermore, the fact that execution of sales
in some industries can take longer than a year, a nd that in some industries sales are made pursuant to
annual or longer contracts, further demonstrates the frequent need for examining a multi-year period
in injury investigations.
5. The meaning of the term "the dumped imports" as used throughout Article 3 was discussed in
European Communities - Anti-Dumping Duties on Im ports of Cotton-Type Bed Linen from India .
5
The Bed Linens  panel found that the dumping determination is made with reference to a product , not
with reference to individual transactions, and that  investigating authorities may therefore treat all
imports subject to the dumping determination as "dumped imports" for purposes of the injury analysis
under Article 3.6  The Panel’s rationale for this conclusion was based on many of the same
considerations set forth above.  In addition, as that Panel noted, the view that “the dumped imports”
include all imports from the subject sources without distinction by transaction is also consistent with
the findings of the GATT Panels in the Salmon  cases.7
6. Article 3.2 of the AD Agreement contemplates that investigating authorities will examine the
volume and price effects of all imports subject to the dumping determination.  This does not mean,
however, that the investigating authorities must somehow account for each and every subject import.
The Agreement does not set forth explicit methodologies that the investigating authorities must use in
considering import volume or price effects.
                                                     
3  The time period covered by the dumping determination will normally be one year, but in no case less
than six months.  Article 2.2.1, n.4.
4  The disparity between the typical period of investigation of 12 months for calculating dumping and
the substantially lengthier period of investigation for making an injury determination existed well before the
Uruguay Round.  The negotiators were well aware that the period for calculating dumping would be shorter than
that for assessing injury.  With this awareness, they reaffirmed the requirement that investigating authorities
evaluate injury based upon an examination of volume and price effects and impact that inherently would covermore than one year.  Indeed, WTO Members have, by co nsensus, endorsed the practice of collecting data for a
one year period for dumping determinations and for at least a three year period for evaluating injury.  This
consensus is reflected in a Recommendation Concerning the Periods of Data Collection for Anti-Dumping
Investigations  adopted by the WTO Committee on Anti-Dumping Practices on 5 May 2000.
5  EC – Anti-Dumping Duties on Imports of Cotton-Type Bed Linen from India , WT/DS141/R, adopted
as modified by the Appellate Body report on 12 March 2001, paras. 6.121–141 (hereinafter, “ Bed Linens ”).
6  Bed Linens , paras. 6.136, 6.139.  The Bed Linens  panel characterized  the subject products as "all
imports from producers/exporters for which an affirmative determination of dumping is made."  However, it isclear that the Panel was actually referring to all imports from India for which there was not a negative  dumping
determination.  See Para. 6.138.  In Bed Linens , the imports for which there was an affirmative dumping
determination and those for which there was no negative dumping determination were the same.
7  Bed Linens , para. 6.141, citing  Salmon-Anti-Dumping Duties , Report of the Panel at paras. 565-571;
Salmon-Countervailing Duties , Report of the Panel at paras. 328-340.WT/DS219/R
Page E-109
Q3. Unlike Article 2 of the Antidumping Ag reement in respect of dumping, Article 3
contains no specific guidance as to the methodol ogy an investigator must use to consider price
undercutting.  Comment.
7. As the Panel notes, Article 3.2 contains no requirement that a particular methodology  be
employed by investigating authorities in addressing whether there has been significant price
undercutting for the purposes of the injury determination.  Particularly when contrasted with the
inclusion of specific methodologies in Article 2 for examining transactional prices for the purposes of
the dumping determination, the absence of a reference to a particular methodology in Article 3 must
be interpreted to mean no specific methodology is prescribed.
8. That said, the procedure that an investigating authority uses to make price comparisons under
Article 3.2 must be consistent with the objectives and other requirements of Article 3.  Thus, the price
comparisons must reflect an objective examination in accordance with Article 3.1, and must involve a
comparison of prices for the dumped imports (see response to question 2, above, concerning the
meaning of "dumped imports" in this context) with prices for a like product of the importingMember.
8  Further, as explained above in response to question 1, the overarching objective of
comparing prices and examining price depression or suppression is to determine the effects, if any, of
the dumped imports in the domestic market for like products.9
                                                     
8  See Article 3.2.
9  See Article 3.1.WT/DS219/R
Page E-110
ANNEX E-6
COMMENTS OF BRAZIL ON THE RESPONSES OF THE
EUROPEAN COMMUNITIES TO QUESTIONS FROM
THE PANEL TO THE PARTIES
(21 May 2002)
General Remark
Brazil’s comments on the EC’s answers to the Panel’s questions are given below.  Brazil
observes that in the following it will not go through all the issues and arguments raised in the EC’sanswers to the Panel’s questions to the Parties.  Brazil has already had the opportunity, in its own
submissions, statements and answers to the Panel’ s and to the EC’s questions, to present its own
position on the matters below.  Brazil’s following additional comments are therefore made only where
in Brazil’s view, further clarification of its position is called for at this stage with regard to certain
issues.  Brazil may choose in any event to elaborate further, as appropriate, on any aspect of the
matters concerned in the subsequent phases of this proceeding.
Question 1
With respect to Brazil's allegations under Article 15 AD, would the European
Communities have conducted itself in the same manner in an anti-dumping investigation
involving a developed country Member?  Is this re levant here? If not, what is the meaning and
legal significance of the phrase "special regard" in the first sentence of Article 15.
Brazil notes the EC’s statements that “[a]s a general rule, the EC authorities would not act in
the same manner in the application of anti-dumping measures involving a developed country
Member” and that “no similar steps were taken in regard to Japan, the sole undeniably-developed
country concerned by the same proceedings”1 (emphasis added).  It is not clear to Brazil which
“steps” the EC is referring to.  If these “steps” refer to the suggestion that Tupy should offer an
undertaking, Brazil recalls that such “steps” were only taken after Brazil raised this issue in the
bilateral contacts.  With regard to paragraph 2 of the EC’s response Brazil refers the Panel to the
arguments submitted on this issue in the Second Submission of Brazil.
Question 6
What legal obligations does Article 15 AD impose? Could Brazil comment on the
European Communities statement in paragraph 31 of its first written submission that "…the
first sentence [of Article 15] imposes no legal ob ligation"?  If there is more than one obligation
in Article 15, what is the relationship, if any, be tween these obligations-- i.e. are they separate,
independent obligations, or are they interrelated and dependent?  Explain your response, with
reference to the customary rules of interpretati on of public international law and any relevant
material.
Brazil notes the EC’s broad brush statement that “[t]his interpretation was justified in
accordance with the rules stated in the Vienna Convention”.2 However, Brazil submits further that the
                                                     
1 See Answers of the European Communities to the Questions from the Panel at the First Substantive
Meeting, Geneva, 14 May 2002, ‘the EC’s Answers’, para 1.
2 See the EC’s Answers, para 3.WT/DS219/R
Page E-111
EC does not provide any supportive argumentation why the first sentence of Article should be
reduced  into the second sentence, and why the Panel should accept this kind of suggestion, which is
against the principles of effective interpretation .
Question 12
What factors should guide a panel’s considerat ion as to whether the imposition of anti-
dumping measures would affect Brazil’s “essential interests” within the meaning of Article 15
AD?  Do the parties agree with the statement of the United States in its third party written
submission (para. 14) that the term “essential” implies a very high standard for the level of
national interest which the developing country must demonstrate would be affected by anti-
dumping duties?
Brazil strongly disagrees with the EC’s suggestion that Article 15 constitutes an exception to
other obligations under the AD Agreement and that the burden of proof is on the Member invoking
the exception.3 Effectively, the EC argues that only if the application of anti-dumping measures
"would affect the essential interests of developing countries", then the obligation to explore the"possibilities" of "constructive remedies" arises.  The EC seems also to suggest that the burden of
proof to show that the essential interest would be affected is on a developing Member.
Brazil submits that the EC’s interpretation, which is not supported by any relevant material, is
against the plain text of Article 15.  The exact wording of the second sentence of Article 15 lays downan obligation (‘shall’) on developed Members to ‘explore’ possibilities of constructive remedies
before applying anti-dumping duties against imports from a developing Member.  Consequently,
Article 15 is not an exception but lays down an additional substantive requirement to developed
Members which need to be met before applying anti-dumping duties.  Brazil notes that this obligation
is qualified by the phrase “where they [anti-dumping duties] would affect the essential interest ofdeveloping country Members”.  However, given that the principal obligation to ‘explore’ is on the
developed Members, Brazil submits that in the same way the obligation to show that the intended
application of anti-dumping duties would not affect the essential interest of developing country is on
developed Members.  Indeed, a simple reading of Article 15 must mean that that a developed Member
is expected to explore possibilities of constructive remedies unless it  can demonstrate that the
intended anti-dumping measure would not affect the essential interest of a developing country
Member.  Brazil’s response to the Panel’s question 12 should be read in that context.
Question 20
According to Brazil, the first "explicit cons ideration" by the European Communities of
the currency devaluation was on 20 July 2000 in the Disclosure Preceding the Definitive
Regulation.  Does the European Communities agree? Is this relevant? Why or why not?
As a background information, Brazil recalls that the EC provided at the very beginning of the
investigation detailed exchange rates for conversion into ECU/EURO.
4 The conversion rates for the
Brazilian Reais were the following:
                                                     
3 See Ibid. para 11.
4 See the Questionnaire (BRL-3), page 72.WT/DS219/R
Page E-112
Period ECU/EURO =
real
1995 1,199
1996 1,2761997 1,2221998 1,299IP 1,509199804 1,245
199805 1,273
199806 1,272199807 1,275199808 1,291199809 1,363199810 1,419
199811 1,390
199812 1,413199901 1,785199902 2,236199903 2,146
Consequently, the issue of the significant devaluation of the Brazilian Real was known to the
EC even before the initiation of the proceeding.5 An important consequence of this EC knowledge
was that the EC was fully aware that the dumping situation complained about by the Applicants and
which served as a basis for the initiation of the anti-dumping investigation against Brazil had been
totally different by the time of initiation (i.e. there was no dumping to be offset), and that the anti-
dumping measures which the EC has adopted following the investigation in this case have been totallymisplaced and inappropriate, as Brazil submitted under the first alternative of its Issue 3.
Question 26
Does the European Communities believe that the price comparison at the end of the IP
revealed no, or declining, differences between export price and normal value at the end of the
period? Explain the significance this has for the establishment of the margin of dumping in the
IP as a whole.  Provide the legal basis for your response, citing any relevant material.
With regard to the EC’s statement that “Tupy’s prices at the end of the IP, immediately
following devaluation, are no reliable indicator of its prices in the medium term”,
6 Brazil has two
comments .  Firstly, Brazil recalls the following example provided in its First Submission:
“Presume, for the sake of argument, that a Brazilian exporting producer sold in April 1998 the
product concerned on the Brazilian market for 10 Reais per one unit and at the ECU/EURO
equivalent of 8.03 when sold on the same day to the EC.  At that point in time the unit price of the
product concerned was the same in Brazilian Real and in ECU/EURO in both markets.  On the
assumption that the nominal value of the home market price and the export price was unaffected by
other factors between April 1998 and March 1999, when the Brazilian Real depreciated by 41.99 per
cent in ECU/EURO terms follow ing the devaluation [footnote: One ECU/EUR corresponded to
1.245 real in April 1998 and to 2.146 in March 1999; see Questionnaire, page 72], the export price of
8.03 ECU/EURO when converted into Real in Marc h 1999 was 17.23.  Inversely, by converting these
prices into ECU/EURO, both prices were 8.03 EC U/EURO in April 1998, but given the devaluation
the domestic price became a mere 4.66 ECU/EURO in March 1999.”7 Consequently, Brazil submits
                                                     
5 See the EC’s Answers, para 21.
6 See the EC’s Answers, para 26; see also para 30.
7 BFS, para 194.WT/DS219/R
Page E-113
that under normal conditions  a steep devaluation makes the normal value of the product concerned
significantly lower than the export price so that , no dumping would actually take place in the said
circumstances.
Secondly, Brazil submits that the obvious method to establish whether such “normal
conditions” have continued in this case after the devaluation ( i.e. assessing how the Brazilian exporter
reacted to currency devaluation), was to self-initiate an immediate review (see also Brazil’s comments
under question 33 below).
Question 33
What is the meaning of the phrase "where  warranted" in Article 11.2 AD? Provide the
legal basis for your answer.  Assuming arguendo  that initiation of a review is “warranted”, is
there a legal obligation to self-initiate a review?
Brazil disagrees with the EC's interpretation that “[s]elf-initiation therefore remains a residual
category, appropriate for unusual or extreme circumstances”.  Brazil submits that Article 11.1contains a general  “necessity rule” whereby anti-dumping duties shall remain in force only as long as
and to the extent necessary to counteract injurious dumping and that this general rule is implemented
through, inter alia , Article 11.2.
8Brazil believes that the investigating authority has an obligation to
conduct a review on its own initiative “where warr anted” and this obligation applies throughout the
life of an anti-dumping measure.
Question 35
What, if any, is the relevance and role in these proceedings of the EC case-law and
practice concerning "changed circumstances" cited by Brazil on pp. 38 et seq. of its first writtensubmission?
Brazil disagrees with the EC's conclusion that “even assuming that the dumping margin had
declined in the period immediately following devaluation there would have been no basis for
concluding that such a change would be lastin g”.  As commented above in question 33, the proper
basis for the EC to examine, whether ”such a change” would or would not be lasting, would have
been to self-initiate a review under Article 11.2, given that there were ample indications that such areview was indeed “warranted”.
Question 37
Comment on Brazil’s allegation of the in consistency between your statement in the
Disclosure Preceding the Provisional Regulation:
"- On the domestic market, products starting with a 12, 68, 69 and 79 code were sold.
Products starting with 68 and 69 had a different thread (NPT instead of BSP), while 79
products were not threaded.  Products with code 68 were also made for higher pressure thanother products.  The costs of manufacturing of these products appeared to be different, and
most of these products had also market values which were very different.
- On the EC market, Tupy sold products st arting with a 12 code (own brand) and
products starting with an 18 code (Nefit brand).  Again, these products appeared to havesometimes very different costs of manufacturing.” (footnotes omitted, emphasis added)
and the position taken in the investigation not to grant adjustments as envisaged by Article 2.4
                                                     
8 See, for example, ‘US- DRAM’ , para 6.41.WT/DS219/R
Page E-114
Brazil disagrees with the EC that “[t]his example shows that fittings with different threading
or brand name although being for the rest quasi-identical have a strongly varying market value and
that it would be unreasonable to combine domestic sales of 12, 68 and 69 types to determine a normal
value combined for 12 and 18 types which have in  their turn a strongly varying cost and market
value”.9 Brazil contests that the difference in the costs of manufacturing between product types
starting with internal product codes ‘12’ and ‘18’ as exemplified by the EC of around 5 per cent
warrants the conclusion that these product types have “strongly varying costs” .  Moreover, given that
the product types starting with the internal product codes ‘18’ were not sold on the domestic market at
all, it is logically impossible that the product types of ‘12’ and ‘18’ had “strongly varying market
values”.10
Question 41
Comment on Brazil's statements on page 60 of its first written submission:“Consequently, the words “t hroughout this Agreement” in Article 2.6 when read
together with the wording of Article 2.2.2 obliges the investigating authorities to
use the actual amounts for SG&A and for profits pertaining to production and
sales in the ordinary course of trade of products which are identical, i.e. alike in
all respects, to the product under consideration.  Only in the absence of such
identical products can the actual amounts for SG&A and for profits pertainingto production and sales in the ordinary course of trade of products, which are,
although not alike in all respects, having  characteristics closely resembling those
of the product under consideration.  However, in the latter case the investigative
authority is obliged to make due allowances in each case, on its merits, for
differences in physical characteristics affecting price comparability…..”
Brazil recalls the EC’s claim that “[t]he kind of interpretation proposed by Brazil would lead
to arbitrary if not chaotic results, which are clearly not the intention of the Agreement”.
11 Brazil
submits that its textual interpretation of Articles 2.2.2 and 2.6 is confirmed in light of the requirements
of Article 31 of the Vienna Convention .  Brazil submits that an examination of the elements in
Article 31 does not leave the consistent meaning of “the like product” in the AD Agreement
“ambiguous or obscure”.  However, the EC’s position that “[t]he chapeau of Article 2.2.2 explicitly
directs the use of production and sales data pertaining to the like product and not a comparable
product”12 is clearly against the opening sentence of Article 2.6 of the AD Agreement (“[t]hroughout
this Agreement”).  In essence, Brazil submits that Article 2.2.2 (in light of Article 2.2) requires the
investigating authority to base the amounts for SG &A and for profits in the construction of normal
values on the data of representative  and profitable  domestic sales of the identical product types, if
available.  Consequently, all of the examples provided by the EC are misplaced.13
Question 53
Comment on the statement by the European Communities at para. 127 of its first written
submission that "…both SG&A and profit were  based on the 1260 types of the like product sold
on the domestic market".
                                                     
9 See the EC's Answers, para 60; see also para 58.
10 See also the Disclosure Preceding the Provisiona l Regulation (BRL-11), where the EC stated that
“these products [product types starting with internal product codes ‘12’and ‘18’] appeared to have sometimes
very different costs of manufacturing”; Annex I, page 2.
11 See the EC’s Answers, para 66.
12 See Ibid. , para 65.
13 See Ibid., para 66.WT/DS219/R
Page E-115
Brazil notes the clear contradiction between the above-quoted EC’s statement at para. 127 of
its first written submission and the EC’s response to Question 53.  While the EC firmly contended in
its first submission that “…both SG&A and profit were based on the 1260 types of the like product
sold on the domestic market", the EC now states that “...SG&A costs and profit were based solely on
those types sold on the domestic market in the ordinary course of trade.”
On the other hand, Brazil notes that the EC alleges that “[t]his [SG&A costs and profit based
on 1193 types] can clearly be seen in the Definitive disclosure.  In Brazil´s view, at a minimum, it is
not as clear as the EC points out, since the EC it self seems to be confused with its own data.
Question 57
On what basis does the European Communities justify the use of data relating to the 20
"most exported types" of the product con cerned in calculating the adjustment for
PIS/COFINS?
Brazil notes the EC's statement that “[t]he EC investigators knew  they could safely proceed on
this basis [re: 20 “most exported types”] because the outcome of this calculation would have  only a
minor effect on the level of the dumping margin” (emphasis added).14 The EC itself admits that it
knew beforehand that its method of examination would have effect on the level of the dumping
margin.  However, the EC's method was punitive, as shown by Brazil, specifically in light ofextensive information that the Brazilian exporter had submitted to the EC.  Brazil opines that anti-
dumping investigations should be based on facts (actual data) and not on the investigating authority's
presumptions or hunches, as the latter undermine the objective standards imposed on the investigating
authorities by the AD Agreement.
Question 88
Was the conversion of the amounts reported by Tupy from the European currency to
Reals done only in the case of transport costs?
Brazil does not understand the EC insistence that “a conversion from foreign currencies into
Real was also necessary for all other adjustments made to the export price, as Tupy had reported allthese adjustments in the currency of the export invoices, despite instructions to report in Real”.
15 All
the Brazilian exporter’s export sales of the product concerned to the EC were made and expressed in
the currency agreed between the parties to the transaction (i.e. Tupy on the one hand and the EC
importer on the other).  Moreover, the term of delivery was ‘CIF’ and thus all cost items between ex-
factory  and the agreed port in the EC were indicated in the same currency as the agreement.16
Question 100
What is the significance, if any, of the reference in Article 3.2 AD to “a” (rather than
“the”) like product?  And to domestic “p rices” (in the plural rather than singular)?
                                                     
14 See Ibid. , para 94.
15 See Ibid. , para 120.
16 See the Questionnaire (BRL-3), Section H – 6 ‘Formats of allowances’ where the EC requested the
exporters to “[p]repare a listing named “ECALLUR”…of all adjustments you claim for sales to independent
customers in the European Community on a transaction-by-transaction basis following the same order of thelisting in Section H3 (I)”. Brazil recalls that all of the listings requested by the EC were provided by theBrazilian exporter in its Tupy’s Questionnaire Response (BRL-4).WT/DS219/R
Page E-116
Brazil notes again the EC’s references to the Agreement on Subsidies and Countervailing
Measures.17 However, Brazil denies all of the EC’s suggestions that the obligations in the AD
Agreement should be interpreted, let alone replaced by the obligations in the SCM Agreement.
Question 114 (indicated in the EC ’s response as Question 110)
Indicate in the record of the investigation the sources of information and the
methodology on which the statements and information in Exhibit EC-12 are based.  In
particular:
• How was the statement in Exhibit EC-12 on  "ability to raise capital" derived
from the information given in "questionnaires and annual accounts"?
• How was the statement in Exhibit EC-12 on "wages" derived from the
information given in " annual accounts"? Explain the meaning of "allocation onthe basis of turn over"?
• How was the statement in Exhibit EC-12 on "productivity" derived from the
information given in "questionnaires"?
• How was the statement in Exhibit EC-12 on "return on investments" derived
from the information given in "questionnaires and annual accounts"?
• How was the statement in Exhibit EC-12 on "cash flow" derived from the
information given in "questionnaires and annual accounts"?
• How and on what basis was the statement in Exhibit EC-12 on "magnitude of
margin of dumping" derived?
For the reasons point out in its Second Submission, Brazil believes that the Panel should
entirely disregard Exhibit EC-12.  Nevertheless, the following observations must be made.Article 3.4, when read together with Article 4.1, obliges the investigating authority to examine the
impact of the dumped imports on the domestic producers of the like product ( i.e. ‘domestic industry’).
In view of this, Brazil notes the EC’s methodology to  allocate certain parameters (like tangible fixed
assets, stock and depreciation) by turnover ratio.
18 Indeed, this shows that the domestic industry was
also producing products other than the like product.  With particular regard to “return on investments”and “cash flow”, Brazil submits that the allocation of tangible fixed assets and depreciation on the
basis of turnover is meaningless for the purpose of an anti-dumping investigation.  The reason is very
simple: turnover does not indicate what amount of the company’s assets (and depreciation related to
these assets) relates to which specific segments of the business.  For example, high/low turnover of a
product is not necessarily related to high/low share of the total assets (land and buildings, plant and
machinery etc.) used to generate that turnover.  Consequently, Brazil submits that the EC’s
examination was not based on the like product specific “positive evidence” as required in Article 3.4.Finally, the acceptance of the EC’s examination method would also have practical consequences.  If
this happened, the only data the investigating authority would need to request from the domestic
industry would be the turnover of the like product, as the rest of the injury indicators under Article 3.4
could technically be examined on the basis of companies’ income statements and balance sheets.  This
is clearly not what is required in order to satisfy the conditions of Article 3.4 in this respect.
                                                     
17 See the EC’s Answers, para 137 et seq .
18 Regarding the EC’s general methodology; see the EC’s Answers, para 155; particular methodologies
regarding “return on investments” and “cash flow” see paras 157 and 158 respectively.WT/DS219/R
Page E-117
Question 120
How can the Panel verify whether and to what extent the European Communities
investigating authorities examined  the issue of outsourcing and ownership links of the domestic
industry with producers located in countries not subject to the investigation? Please indicate the
relevant parts of the record of the investigation.
Brazil observes that, for the first time ever, the EC seems to admit that two of the Applicants
forming part of the EC industry did delocalise pr oduction to plants under EC industry control in
certain third countries.19 Brazil observes further that a third Applicant (Woeste) which, as the
Brazilian exporter had submitted to the EC authorities, delocalised its production to a subsidiary inEgypt,
20 has still not been recognised as such by the EC.  The EC nonetheless still describes that
situation as an “allegation” which was “never substantiated”21 thus still trying to attribute the failures
of its own examination to the Brazilian exporter , and now also to Brazil’s related contentions.
Moreover, Brazil notes that none  of the references given by the EC really addresses the issue
of the EC producers’ production plants located outside the EC.22 Regarding one aspect of this
problem, Brazil submits that the EC producers’ direct investments outside the EC was a relevant
economic factor having a bearing on the state of the domestic industry under Article 3.4.
Furthermore, it was also a known factor other than the dumped imports under Article 3.5 explaining,
for example, why the EC producer’s investments in  the EC decreased by around 16 per cent between
1995 and the IP.23
Furthermore, Brazil fails to understand how the EC could avoid addressing the issue of the
EC industry’s ownership over foreign producers of the product concerned and their strategic decision
to delocalise (outsource) production to such foreign production plant where this issue has been at thevery centre of the EC’s investigation from its very beginning.  As repeatedly stated, the Brazilian
exporter as well as other exporters have made such submissions on different occasions during the EC
investigation.  Perhaps even more importantly, the highest levels at the EC Services have also been
alerted to this phenomenon and to its crucial importance to the issue of the legality of the investigation
under the “spirit and letter of the relevant international anti-dumping rules.”
24 Thus, this issue, and the
related question whether the “Community interest” to impose anti-dumping measures25 should also
include the interests of EC producers in foreign countries, have been raised at different times duringthe EC investigation and are paramount to the understanding of the general context in which that
investigation was conducted.  To Brazil, the EC’s failure to confront the above mentioned
submissions in any of the documents forming the record of this proceeding must raise very serious
                                                     
19 See the EC’s Answers, para 167.
20 See the Fourth Submission of Tupy (BRL-13, page 2); see also BRL-51 and BRL-52 (exhibits
submitted during the First Substantive meeting with the Panel).
21 See the EC’s Answers, para 167.
22 See the EC’s Answers, para 166. Brazil notes that of the mentioned references recital 134 of the
Provisional Regulation (BRL-12) and recitals 65 et esq.  of the Definitive Regulation (BRL-19) are related to the
definition of domestic industry under Article 4.1 of the AD Agreement. Brazil also notes references related to
the EC’s causation analysis, namely in recital 174 of the Provisional Regulation the EC states that “one
Community producer did import the product concerned from one third country”, and in recitals 106 et esq. of
the Definitive Regulation the EC analyses the imports of  the product under consideration from Turkey, Bulgaria
and Poland. Finally, Brazil notes the EC’s explanations in the Transparency Letter (BRL-18) with regard to thenon-initiation against Turkey, product mix exported from Poland and import prices of the Bulgarian imports.
23 See recital 159 of the Provisional Regulation (BRL-12).
24 See para 3 in the letter dated 23 February 2000 of the Brazilian Ambassador to the EC to Mr Wenig,
Director, EC Anti-dumping Services, with copies, inter alia , to the Chief of Cabinet of Trade Commissioner
Mr Lamy; submitted by the EC as CONFIDENTIAL Exhibit EC-29.
25 Article 21 of the EC’s Basic Regulation (BRL-24).WT/DS219/R
Page E-118
questions also in relation to the way in which the EC had discharged its obligations of an investigating
authority to conduct a proper investigation on the basis of positive evidence and objective
examination.
Finally, given that the issue of the domestic industry’s outsourcing of the product concerned
to foreign subsidiaries, including in  Egypt , was an issue which was properly raised during the
investigation, but the EC preferred not to react to it,  Brazil submits that the EC also violated
Article 12.2.2 by not providing any reasons for the rejection of the relevant arguments made by the
Brazilian exporter in this regard.26
Question 129
How, if at all, do the standards of "signifi cant contribution" (e.g. Definitive Regulation,
para. 113) and "not such to have broken the causal link" (e.g. Definitive Regulation, para. 111)
relate to a genuine and substantial relationship of cause and effect?
Brazil notes the EC's statements that “[i]t should not be assumed that, had there been a
significant contribution from the ‘substitution effect’, the necessary causal connection between
dumped imports and injury would have ceased to exist”27 and that “[i]f the consequences of third-
country imports had been sufficiently great they would have broken the causal link between the
dumping and the injury found”.28 Brazil submits that these statements are not only self-contradictory
but also indicative of the EC’s conduct as the EC effectively assumed, in violation of Article 3.5 that
certain other known factors did not "break the causal link".  They also indicate that the EC's causation
determination does not fulfil the non-attribution obligation in Article 3.5.
Question 143
Could the EC clarify the meaning of the Article 11.3 of the EC Basic Regulation on
whether the exporter has the right to have a review or has the right to request  a review?
Brazil observes that the EC’s attempt to make a distinction between a situation where an
exporter has a right to have a review and the situation where it has a right to request  a review is
nothing more than a rather meaningless tautological exercise.  Any party has a right to request  a
review, regardless of how sound or legitimate its claims may be.  It is a mere right to express a wishor to address the Commission.  Such a “right” is however meaningless if the EC regulations do not
allow such a request to be heard or accepted.  Even if the EC understood that such a request was
legitimate, it would not open the review as a respons e to the request; it would formally self-iniate the
review
Question 144
Can the EC confirm that if Tupy has request ed a review within the year following the
imposition of the anti-dumping duties the Commission would have exercised discretion on the
granting of such a request?  Also, if the reque st had been made after the year following the
imposition of the anti-dumping duty would the Commission have automatically granted the
request?
                                                     
26 Brazil recalls for example the Brazilian exporter’s claims regarding outsourced imports from Egypt,
e.g. in the Fourth Submission of Tupy (BRL-13, page 2).
27 See the EC's Answers, para 177.
28 See Ibid.  para 178.WT/DS219/R
Page E-119
Brazil notes the EC’s statement whereby “a request for a review made by Tupy within the one
year period would have been seriously considered.”29 However, the EC seems to have forgotten its
own contradicting statement in its First Submission that “[t]he EC authorities did not believe that the
devaluation that occurred in the course of the investigation was an event that warranted a review.”30
As to the review mentioned by the EC, Brazil notes that that this issue is not a matter to be
considered by the Panel, as it is outside the Panel’s terms of reference.
However, should the Panel consider that the EC’s review is relevant to this proceeding Brazil
would submit that this review is bound to create more confusion rather than provide for a proper
solution to the problems raised by Brazil in this proceeding.  Brazil notes the EC’s explanations
regarding the review of the measure subject of this dispute31 and observes that the nature and purpose
of that review are far from being clear.  Firstly, the review was initiated on 5 December 2001 and it
might be a mere coincidence that that date was the second day of the first substantive meeting with
the Panel.  This is the first indication of the confusion regarding the real purpose of that review.
Secondly, Brazil notes that the review to which Brazil referred under Issue 3 concerned a
review in the sense of Article 11 of the AD Agreement (parallel to Article 11 of the EC’s Basic
Regulation).  Nonetheless, the legal basis given by the EC to the new review is a new EC act of EC
legislation32 which, unlike the Basic Regulation, does not find its source in the AD Agreement, to
which it does not even refer.
Thirdly, Brazil notes that as a justification for the review, the EC noted that “the exporting
producer requested a review on the basis that its individual anti dumping duty rate is based on
methodologies [re: ‘zeroing’ of dumping margin s] which are not in line with the conclusions
contained in the [re: DSB’s ‘EC-Bed-Linen’] reports”.33 On the other hand, however, the review does
not seem to be confined to zeroing.  It would seem that the review was meant to cover all the material
aspects of dumping.  This is indicated, for example, by the fact that the EC examines data for a totally
new investigation period, i.e. from 1 January 2001 to 30 September 2001.34 However, a review
relating to the mere changes required by the zeroing correction would have not required any new
information at all.  A simple modification of the EC’s calculation formula, applied to the old data,
would have sufficed for that kind of a review.  By  making a full-scale review of dumping measures in
force 16 months after their adoption and 10 months after the adoption of the ‘EC – Bed Linen‘  reports,
the EC has clearly recognised that the motive for that review was not merely related to the Czechexporter’s request.
The EC seems to give an answer to the obvious question that one could have thus put to it,
namely, why would an investigating authority initiate a full dumping review to correct the mechanical
effects of zeroing, as it explicitly stated that the review “would have provided an opportunity to
evaluate Tupy’s claims regarding the effects of the devaluation”.
35 The EC thus admits that it should
have initiated a review as submitted by Brazil under its Issue 3.  However, the confused way in which
the EC approached its new review raises serious doubts as to whether it would even be compatible
with the AD Agreement.
                                                     
29 See Ibid. , para 193.
30 ECFS, para 109.
31 See the EC’s Answers, paras 193and 195.
32 Regulation 1515/2001.
33 Ibid. Brazil notes that the DSB adopted ‘EC – Bed Linen’  reports on 1 March 2001.
34 See the EC’s Answers, para 195.
35 See Ibid.  para 195.WT/DS219/R
Page E-120
Brazil also deplores the statement made by the EC regarding the EC’s “invitation” to Tupy to
request an interim review and the misleading way that the EC chose to present this issue.36 Brazil
notes first that, this matter is not covered by this Panel’s terms of reference and is therefore totally
irrelevant here and in the context of the review to which it referred under its Issue 3.  Brazil referred
to a review which should have been self initiated by the EC at the time of imposition of the measures,as was warranted in view of the data that the EC collected from the Brazilian exporter and verified in
the framework of its original investigation.  On the other hand, Brazil notes that the above-mentioned
letter, which specifically referred to these DS B proceedings and to the EC’s zeroing methodology,
could not cure in any way the EC’s failure to initiate a review at the time relevant to this proceeding.
Brazil regrets that the EC failed to mention th e Brazilian exporter’s commitment to fully co-
operate in a full review which only the EC could have initiated and which the Brazilian exporter was
clearly not invited to request.
Brazil also deeply regrets the EC’s statement regarding the EC’s granting of “two extensions
of the deadline” for the Brazilian exporter to give its response in the context of the review mentioned
by the EC, extensions which were part of an arrangement between the EC and Brazil that the twoparties agreed to keep in strict confidence.  In  this arrangement, the “extensions” were mutually
agreed, not in order to give Tupy any additional time to prepare for the review, as the EC seems to
imply.  They were granted simply to allow the search for a mutually agreed solution to continue
without the distractions of the review.  According to representatives of the company, Tupy’s decision
not to co-operate is mostly related to the insufficient scope of the review, which Tupy believes shouldalso cover the injury aspects of the investigation.
                                                     
36 See Ibid. , para 193.WT/DS219/R
Page E-121
ANNEX E-7
REPLIES OF BRAZIL TO QUESTIONS
OF THE PANEL – SECOND MEETING
A. ISSUE 1:  "NO SPECIAL REGARD TO BRAZIL AS A DEVELOPING COUNTRY", "NO
CONSTRUCTIVE REMEDIES EXPLORED"
To Brazil
Q1. As a result of the meetings between Braz ilian and EC government officials, did the
Brazilian government transmit to Tupy the possibility of pursuing a price undertaking with the
EC?  If not, why not?  If so, how did Tupy react?  Provide supporting evidence.
Reply
The Government of Brazil has no record of an y contacts maintained with the Brazilian
exporter regarding the issue of undertakings.  In fact, there was no need at all for Brazil to inform the
Brazilian exporter of the possibility of a price undertaking, which possibility is explicitly provided by
the AD Agreement.
In any event, particularly in view of the EC’s confirmation during the second substantive
meeting that a price undertaking was its preferred “constructive remedy” and given the inherent
nature of that “contractual” remedy, the EC could not satisfy the requirements of Article 15 merely by
discussing an undertaking in such general terms with Brazil and not raising it at all with Tupy.  Price
undertakings are a matter to be negotiated between  and agreed by the authorities and the exporter.
The EC did not even try to explore that possibility with the Brazilian exporter.   
Q2. We note that Article 12.2 states " Public notice shall be given of any preliminary or final
determination, whether affirmative or negative, of  any decision to accept an undertaking pursuant
to Article 8, of the termination of such an undertaking,…. ". How and to what extent is this
relevant here?
Reply
Brazil understands this question in the context of Paragraph 19 of its Second Written
Submission and its answer to the Panel’s questi on Nº 13 following the first substantive meeting.
In Brazil’s view, the EC’s contention that it had explored the possibility of an undertaking
with the Brazilian authorities and that in doing so it complied with its obligations under Article 15
must fail, also in view of the EC’s failure to report on this “exploration” under Article 12.2.
In the present case, no public notice was given of any decision (affirmative or negative) to
accept an undertaking pursuant to Article 8 with regard to the Brazilian exporter.  This fact shows
that:
(a) the EC did not explore the possibility of a price undertaking as a “constructive
remedy” and, therefore, there was nothing to be reported through a public noticepursuant to Article 12.2;  ORWT/DS219/R
Page E-122
(b) assuming that the EC did explore the possibility of a price undertaking as a
“constructive remedy”, its failure to report it would constitute a violation of
Article 12.2.
In any event, the fact that no public notice was given of any decision (affirmative or negative) to
accept an undertaking clearly indicates that the EC did not consider the exploration of constructive
remedies a “material” issue of fact and law1, which is at odds with Article 15.
To the EC
Q3. With reference to the relationship between th e obligations in Articles 12.2 and Article 15
of the Anti-Dumping Agreement , comment on Brazil's response to Panel Question 13 stating that
the EC did not mention in the Provisional or Definitive Regulation that the possibility of an
undertaking had been explored with regard to the Brazilian exporter.
To both parties
Q4. With reference to Brazil's assertion in para. 20 of its second written submission and
Brazil's response to Panel Question 4 following the first meeting, are undertakings other than
price undertakings provided for by the Anti-Dumping Agreement ?  How, if at all, is Article 8.1
of the Anti-Dumping Agreement  relevant in this context?
Reply
Brazil believes that undertakings other than price undertakings are provided for by the Anti-
Dumping Agreement. As a general premise, Brazil suggests that any measure which would have a lessrestrictive impact than an anti-dumping duty shoul d be allowed under Article 8.  Indeed, Article 8.1 of
the Anti-Dumping Agreement does mention both price undertakings and undertakings to cease
exports.  Brazil is of the view that, in applicat ion of the maxim “the greater power includes the
lesser”, if the Anti-Dumping Agreement applies to undertakings to cease exports, it also allows less
restrictive quantitative measures, i.e. a limitation of exports.  It can therefore be inferred that the Anti-
Dumping Agreement does not prevent WTO Members from accepting quantitative undertakings,
tariff quotas or “price quotas”.  Notwithstanding the EC statement that it is no longer its practice toaccept such undertakings
2, the EC is known to have subscribed to this interpretation on record until
recently3, and in any event at a time later than the entry into force of the AD Agreement. Brazil
observes that the EC has not elaborated why it had now allegedly decided to discontinue this long
standing practice.
Q5. Previous panels have indicated that the application of the "lesser duty rule" and "price
undertakings" are possible constructive remedies under Article 15 of the Anti-Dumping
Agreement. Can both parties suggest any other remedy that could be seen as constructive in
terms of Article 15?
                                                     
1 Article 12.2 states in the relevant part:  "… Each such notice shall set forth, or otherwise make
available through a separate report, in sufficient detail the findings and conclusions reached on all issues of factand law considered material by the investigating authorities…".
2 Second Oral Statement by the EC, para. 28.
3 See J.F. Beseler and A.N. Williams, Anti-dumping and Anti-subsidy Law: the European Communities ,
Sweet & Maxwell, 1986, at p.215 and E. Vermulst and P. Waer, EC Anti-dumping Law and Practice , Sweet &
Maxwell, 1996, at p.71 (Copied pages attached)WT/DS219/R
Page E-123
Reply
Brazil observes that  it was the duty of the EC to explore “constructive remedies” and
therefore it was the role of the EC to devise su ch an undertaking.  More generally, as already
mentioned in its Second Submission4, Brazil contends that the Panel’s statement in EC-Bed Linen
implies that there might be other kinds of constructive remedies under Article 15 of the Anti-Dumping
Agreement than “lesser duty” and “price undertaking”. Brazil referred, in its Second Submission to
undertakings which limit the quantities to be exported.  One could also think of tariff quotas or “price
quotas” as other kinds of a constructive remedy.
B. ISSUE 3 : "INAPPROPRIATE  MEASURES"
To Brazil
Q6. Can Brazil comment on para. 39 of the EC oral statement at the second meeting?
Reply
In the above-mentioned paragraph the EC relates to two main issues: its letter of
10 August 2001 and its initiation of a “review” in December 2001.  Both issues are not covered by theTerms of Reference (TOR) as set out for this Panel proceeding
5 and must equally be rejected as they
concern facts which have not been made available as part of the record of the EC’s investigation, in
the sense of Article 17.5(ii) of the AD Agreement.
The TOR for this Panel proceeding6 are the following:
"To examine, in the light of the relevant provisions of the covered agreements cited by Brazil
in document WT/DS219/2, the matter referred to the DSB by Brazil in that document and to
make such findings as will assist the DSB in making the recommendations or in giving the
rulings provided for in those agreements".
The matter referred to by these TOR is defined in Brazil’s Request for the Establishment of
the Panel7 and is repeated in its First Written Submission as the definitive anti-dumping duty which
the EC had imposed on imports of malleable cast iron tube or pipe fittings from Brazil.  The duty was
imposed on 18 August 2000 and the matter is thus reflected in the Definitive Regulation.8
It follows that as the above-mentioned issues came into being subsequently to the Definitive
Regulation and are by no way covered by it, nor otherwise by the TOR, they fall outside the scope of
the present proceeding and must therefore have no place before this Panel.
In addition, as the two issues relate to facts which have not been part of the record of the
original EC anti-dumping investigation, this Panel is not authorised, in view of Article 17.5(ii) to
examine them.
In any event, however, also on their own merits , the two above-mentioned issues are totally
irrelevant to this proceeding.
                                                     
4 Second Written Submission of Brazil, para. 20.
5 WT/DS219/3 of 11 September 2001 (BRL-22).
6 In the sense of Article 7 DSU.
7 WT/DS219/2, first para.
8 BRL-19.WT/DS219/R
Page E-124
The EC seems to entirely miss the point as it refers to “Brazil’s insistence that the EC
authorities should have opened a review”. Brazil confirms that it had never requested the initiation of
a “review”.  Brazil recalls that under the main argument supporting its claim of “inappropriate
measures” in its Issue 3 it submitted that the imposition of anti-dumping duties was inappropriate, in
view of the disappearance of dumping following the devaluation of the Brazilian currency.  Brazilnoted in that regard that, “although the EC was very well aware of the fact that there was no need
anymore to offset dumping it has nonetheless imposed anti-dumping measures on the Brazilian
imports.”
9  Brazil further recalls that it had submitted that the EC’s own rules allowed it to take into
account data collected after the formal end of the Investigation Period where such data “disclose new
developments which make the planned imposition of an anti-dumping duty manifestly
inappropriate.”10
Thus, Brazil’s alternative contention regarding that kind of review is an inseparable part of its
main argument namely, that there was no need to impose measures in this case.  In case the EC
needed a longer period to confirm its initial data regarding this absence of justification to impose
measures, the ultimate administrative instrument that could have allowed it to do that would have
been a self-initiated, partial interim review.
Brazil recalls that it had specifically referred to a review which the EC should have self-
initiated simultaneously with its improper imposition of the original measures.  That review was thus
meant to allow the EC to examine a longer period post devaluation which in fact was meant to extend
the original investigation period by several more months.  This would have allowed the EC to avoidthe results that it had achieved in this case where it has knowingly conducted an investigation for a
period which has been totally irrelevant as a justification for the imposition of anti-dumping measures,
in clear violation of the substantive provisions of the AD Agreement.
Moreover, Brazil recalls that the said EC letter
11 corresponded to a totally different situation
that the one referred to under Issue 3.  That EC letter was addressed to the Brazilian exporter “within
the context of the current DSB proceeding in Geneva  on malleable fittings originating inter alia in
Brazil” and its main thrust related “to the issue of ‘zeroing’ which has been raised by the Brazilian
authorities”.  While referring to the EC’s revised policy following the DSB decisions in Indian  Bed-
Linen , the EC further stated that, “given that this issue has now been also raised again in the current
WTO panel … the Commission Services take the opportunity to invite you to consider the possibility
of an interim review”.
Brazil observes that nowhere in that letter did the EC refer to the argument it now puts
forward on the “insistence that the EC .. should ha ve opened a review”.  Nor did it mention anything
with regard to a self-initiated review.
Furthermore, to avoid any doubt, Brazil submits that neither it nor, reportedly, the Brazilian
exporter have ever contemplated a review, in the sense of Issue 3, based on or even relating to
‘zeroing’.  Brazil also notes the Brazilian exporter’s reply12 to that EC letter where it has
unambiguously stated that (i) such a late review should not be limited to zeroing only; (ii) the EC
Commission can self-initiate such a review at any time;  and (iii) the Brazilian exporter would fully
                                                     
9 BFS para 171.
10 Reference in BFS para 169.
11 Exhibit BRL-55. Brazil emphasises that this Exhibit is presented here solely for the purpose of
informing the Panel of the general context, nature and purpose of that EC letter which are clearly not thosewhich the EC is trying to give them before this Panel.
12 Exhibit BRL-56. Brazil emphasises that this Exhibit is presented here solely for the purpose of
informing the Panel of the straight-forward way in which the Brazilian exporter has dealt with the EC’s letter.WT/DS219/R
Page E-125
cooperate with the EC authorities should a proper interim review of all the aspects of the EC’s
original investigation be self-initiated by the EC.
Brazil understands that the Brazilian exporter has finally declined to take part in the new EC
“review” as that “review” was clearly not an interim review and as it was expecting thatmethodologies similar to those against which Brazil complains in this proceeding would be applied
again in its regard.  Equally, given these unacceptable methodologies and the fact that the EC has
waited for more than a year to initiate this review, the Brazilian exporter appears to be of the view that
the EC should be also reviewing  its determinations not only in relation to dumping, but also to injury
and causality.
C. ISSUES 6 & 10:  "NO PROPER CONSIDERATION OF TAX NEUTRALISATION";  "NO PROPER
BASIS TO ASSESS PIS/COFINS INDIRECT TAXES"
To the EC
Q7. Did the EC have available to it in the record of the investigation all of the information
that would have been required to conduct a calculation of PIS/COFINS adjustment on a more
thorough or a comprehensive basis?  If so, cite to the relevant portion of the record. If not, why
did the EC not request the information that would have been necessary for such a moreextensive calculation?
Q8. Why did the EC resort to the use of data of  the 20 most exported types in calculating the
PIS/COFINS adjustment?  Was it exclusively because of the "constraints of time and
personnel" that you refer to in para. 84 of  your oral statement at the second meeting?
Q9. In an investigation not involving "facts available" or "sampling" within the meaning of
the Anti-Dumping Agreement ,  what is the legal basis that permits or does not preclude the use
by an investigating authority of data from only  a selection of transactions or the use of an
"allocation key" for the purposes of calculating adjustments?
To Brazil
Q10. Could Brazil comment on the EC's answer to Panel question 55? Even assuming
arguendo  that the normal value was calculated net of the IPI tax, would this preclude the
necessity to consider whether or not the IPI pr emium credit would be potentially the subject of
an adjustment?
Reply
Brazil believes that the EC has misunderstood the relationship between the IPI tax and the IPI
Premium Credit. IPI premium credit does not relate only to IPI tax.  Therefore, even in case the
normal value was calculated net of the IPI tax, there could be basis for granting an adjustment on the
grounds of IPI premium credit.  The EC simply deni ed such an adjustment, without indicating to the
Brazilian exporter what additional information was necessary to justify the differences between IPI
premium credit and IPI tax, in order to ensure a fair comparison pursuant to Article 2.4.WT/DS219/R
Page E-126
D. ISSUE 9:  "NO PROPER CURRENCY CONVERSIONS"
To Brazil
Q11. With respect to the EC's assertion at para. 77 of its oral statement at the second
meeting, did Tupy request information on rates of exchange used for allowances?  Please cite tothe relevant portions of the record of the investigation.
Reply
Yes, given that it was unclear on which exchange rates basis the EC had made its currencies
conversion the Brazilian exporter requested information on the actual exchange rates thus used.13
Brazil does not believe that the EC could escape the disciplines of Article 2.4 simply by stating thatthe Brazilian exporter’s requests were not specific enough to cover both the export prices and the
allowances deducted from the export prices.
14  It is also senseless to deny that the said requests
covered the exchange rates used for both the export prices and the deductions (allowances).
Q12. Could Brazil clarify whether and to what ex tent its claim is now limited to the exchange
rates used in conversions relating to adjustments?  Please indicate how this is reflected in the
allegation stated in para. 21 of your Panel request.
Reply
Brazil clarifies that its claims under Issue 9 are limited to the exchange rates used in the
conversions relating to adjustments.15  Brazil submits that there is a clear disagreement between the
exchange rates actually used ( i.e. daily and monthly rates)16 and the EC’s explicit statements ( i.e.
daily rates).17  Although Brazil is not aware of the reasons why the EC did not disclose the actual
exchange rates used in the conversion of currencies until it did so before the Panel, Brazil notes that
the EC has now admitted the said discrepancy.
With regard to the second part of the Panel’s question, Brazil submits that the issue of
‘currency conversion’ is covered by Brazil’s Request for the Establishment of a Panel  where
Article 2.4 is listed in the general part and a brief summary of the legal basis is provided inparagraph 21.  Brazil recalls that the said paragraph provides Brazil’s main claim ( i.e. “[t]he EC did
not make the currency conversions required under Article 2 for the purposes of effecting a fair
comparison between the export price and the normal value”) and a specific instance ( i.e. “in
particular”) of such a violation.
                                                     
13 See the Fourth Submission of Tupy (BRL-13), paras 14 and 15; and the Fifth Submission of Tupy
(BRL-17) page 6, para 2.5.6.
14 In particular, Brazil recalls Tupy's following statements:  "it is submitted that it is misleading and
inaccurate of the Commission to state in Annex I of the disclosure that "the Commission recalculated the export
price by using exchange rates at  the date of the invoice …"  and "[t]he inaccuracy lies in the fact that the
Commission actually used, by its own admission, average monthly rates…" (The Fourth Submission of Tupy(BRL-13), page 36, para.14;  "Tupy's objection was to the fact that the Commission had stated on the other handthat it used daily rates and, yet, on the other hand, it became clear that it had used monthly rates" and "theCommission itself has now accepted Tupy's arguments by conceding on page 5 that a daily rate should be
applied" (see the Fifth Submission of Tupy (BRL-17) page 6, para.2.5.6).
15 See BFS, pages 93-97; BSS, para 85 et esq. , and Brazil’s Answers to the Panel’s First set of
Questions No 89 to 94.
16 See ECFS, para 228; the EC’s Response to the Panel’s First Set of Questions, No 88; and ECSS, para
77 et seq .
17 See recital 52 of the Definitive Regulation (BRL-19); the Disclosure Preceding the Definitive
Regulation (BRL-16), Annex II, page 5: and the Transparency Letter (BRL-18), page 4.WT/DS219/R
Page E-127
To the EC
Q13. Could the EC expand upon the explanations provided in response to Panel Question 88
following the first meeting – in particular: 1.  clarify the meaning of "the allowance for credit
cost should be based on the new export invo ice values" and why these were not used in the
context of allowances for credit costs; and 2. provide a more extensive account of the
methodologies used concerning warranties and commissions?
Q14. Can the EC explain how its response to Pa nel question 88 following the first meeting can
be reconciled with para. 52 of the Definitive Regulation?
To both parties
15. How and to what extent does the obligation in Article 2.4.1 to perform currency
conversion using the rate of exch ange on the date of sale apply to the adjustments at issue under
this claim?  Is this relevant or applicable here ?  What are the legal obligations that govern the
calculation of such adjustments and allowances?
Brazil believes that the term ‘comparison’ in the general rule contained in the first sentence of
Article 2.4.1 refers to a comparison between export price and normal value, as both are adjusted as
factors affecting price comparability .  Therefore, Brazil submits that the obligation in the first
sentence of Article 2.4.1 covers not only export prices but also allowances deducted from the export
prices.  Moreover, although Article 2.4.1 deals with a  selection of exchange rates , Brazil submits that
a selective use of exchange rates , as the EC had made in the case before the Panel, cannot be in
accordance with the fair comparison requirement of Article 2.4.
E. ISSUE 12:  "NO PROPER CONSIDER ATION OF IMPORT VOLUME TRENDS"
To Brazil
Q16. Could Brazil comment on the EC statement in  paragraph 88 of its oral statement at the
second meeting that "Brazil appears to confirm the EC's understanding that Brazil is notclaiming an infringement of Article 3.1 other than as an automatic consequence of alleged
infringements of other parts of Article 3"?
Brazil disagrees with this EC's statement.  Indeed, Brazil believes that there may well be an
infringement of Article 3.1 other than as an automatic consequence of alleged infringements of otherparts of Article 3.  Brazil is aware of the statement of the Appellate Body in Thailand - H-Beams  that
Article 3.1 "is an overarching provision that sets forth a Member’s fundamental, substantive
obligation” with respect to the determination of injury.
18  It is true that Article 3.1 informs the more
detailed obligations in succeeding paragraphs.  Article 3.1 sets forth a general obligation according to
which the determination of injury must be based on "positive evidence" and involve an "objectiveexamination".  Brazil does not see any reason why this general obligation could not be infringed
independently of any other obligation laid down in Article 3.
19  In other words, an investigative
authority might very well evaluate all of the fifteen injury factors under Article 3.4 and still infringe
Article 3.1 by not being objective and/or by not basing its findings on "positive evidence”.
                                                     
18 See Thailand – Anti-Dumping Duties on Angles, Shap es and Sections of Iron or Non-Alloy Steel and
H-Beams from Poland, WT/DS122/AB/R, para. 106.
19 See also Brazil’s answer to the Panel question 23 below, in relation to the relevance of Article 3.1 in
the context of Article 4.1 of the AD Agreement.WT/DS219/R
Page E-128
F. ISSUE 13:  "NO PROPER CONSIDERATION OF ALLEGED UNDERCUTTING"
To Brazil
Q17. Could Brazil comment on the EC assertions  in para. 95 of its oral statement at the
second meeting regarding the price undercutting analysis?
Reply
Given the lack of transparency of the EC’s disclosure, Brazil is not really able to comment
whether column 5 of the EC’s Annexes III(3) or III(4) refers to the matching product types, zeroingthe negative undercutting margins or both; whether these issues are also covered by columns 6 to 12;
and whether the EC’s statement regarding the number of product types with negative undercutting
margins is factually correct.
20
Q18. Could Brazil comment on the EC' assertion in para. 122 of its oral statement?
Reply
Brazil recalls its warnings with regard to the practical consequences if the EC’s method of
“examination” were to be accepted.21 Brazil also notes that there is nothing on the record of the
investigation (as it currently stands) to suggest that the domestic industry was not in a position to
make a separate identification of the domestic production of the like product.  Therefore, the EC was
in a position to request such “positive evidence” directly from the domestic industry and there was no
need for the excessive ex-officio  allocations.  Brazil submits that the EC cannot reasonably require
exporters to go through a most burdensome process of responding to detailed questionnaires whilesubmitting  its own Applicants to much lighter obligations.  Indeed, Brazil submits that the way the
EC conducted its investigation in this regard,  has made  this finding of injury more likely (than not),
so that this was certainly not handled in an even-handed manner.
22
G. ISSUE 16:  "INAPPROPRIATE CONSIDERATION OF INJURY INDICATORS"
To the EC
Q19. Are there any worksheets or investigation notes which formed the basis for Exhibit EC-
12? If so, please provide copies or explain why not?
Q20. Could the EC confirm and substantiate that the Exhibit EC-12 was written within the
time period  of the investigation?
Q21. Taking note of what was stated in pa ra. 122 of your second oral statement, could you
please state how you reconcile this with the requirements of Article 3.6?  Could you specifywhether this is or is not relevant here?
To both parties
Q22. Is this the first time in either the course of the investigation that the EC has supplied to
Brazil/Tupy, or in this Panel proceeding that the EC has supplied to Brazil the information
                                                     
20 See the Disclosure Preceding the Provisional Regu lation (BRL-11), Annex III(3); and the Disclosure
Preceding the Definitive Regulation (BRL-16), Annex III(4) with 2 pages.
21 See Brazil’s Comments on the EC’s Responses to Questions from the Panel to the Parties No 114.
22 See US – Hot-Rolled Steel AB Report , para 196.WT/DS219/R
Page E-129
concerning "return on investments" that is contained in paragraph 123 of the EC's oral
statement at the second meeting, or any other information relating to this factor?
Reply
Yes. The first reference to the issue of “return on investments” was made in Exhibit EC-12,
which the EC submitted in this Panel proceeding. Importantly, Brazil submits that the audited
accounts of at least two Applicants (R. Woeste & Co and Georg Fischer Fittings Gmbh) were
classified as ‘confidential’ or ‘strictly confidential’ and have therefore not been included in the non-
confidential file of the EC investigation.  These accounts could thus not be inspected at all by the
Brazilian exporter or by other interested parties.23  Therefore, not all of the audited accounts of the
domestic industry were, contrary to the EC’s explicit assertions to this effect, part of the non-confidential files and have thus not been made available to interested parties.
24
H. ISSUE 17:  "CAUSATION"
Q23. With reference to para. 16 of Brazil's oral statement at the second meeting:
To Brazil
(a) Would an examination carried out for th e purpose of the definition of domestic
industry in Article 4 necessarily both in general and in this particular case be
inadequate for the purpose of Article 3.4 and/or 3.5 analysis?  Why or why not?
Reply
As explained in the following, Brazil’s answer to this question is in the negative.
Brazil recalls that in paragraph 16 of its oral statement at the second meeting it submitted that
“the EC cannot deny that the examination it referred to25 was carried out for the purpose of the
examination of the domestic industry in the sense of Article 4 of the AD Agreement and not for any
other purpose”.  Brazil observes that a somewhat similar question to that which the Panel is asking
here has been addressed by the panel in US-Hot-Rolled Steel from Japan .26 Brazil thus understands
this Panel’s question to refer to the situation in the present case where a major part of the EC industry
shielded itself from the injurious impact of the “dumped imports” through its own strategically
motivated outsourced imports (including from related producers) in Other Third Countries.
Brazil notes that although it may well be that data serving for the purpose of Articles 4 and 3.4 / 3.5
would be the same or similar, that data would us ually serve totally different purposes and form the
                                                     
23 See sections A.5.2 of the non-confidential responses of R. Woeste & Co (BRL-38) and Georg
Fischer Fittings Gmbh (BRL-39).
24 See Second Oral Statements of the European Co mmunities, para 130, and oral statements made by
the EC during the second substantive meeting of the Panel. Brazil notes that the EC refers in the mentioned
paragraph to the “published accounts”. However, in view of the EC’s explicit statements that the information
used was based on audited accounts of the domestic industry (see, for example, the EC’s answer to the Panel’squestion No. 110), Brazil just notes the possibility that the EC might (now) argue that the examination wasbased on a sample of the domestic producers, i.e. those which accounts were published.
25 As most recently made in ECSS, para 18; footnote added.
26 WT/DS184/R of 28 February 2001; “First, we must determine what is required by the
AD Agreement, that is, whether the investigating authorit y is in all cases required to make a determination of
injury to the domestic industry as a whole.  If so, we must then consider whether the primary focus on themerchant market with respect to market share and financial performance set out in the ‘captive production’
provision of the US statute is inconsistent, on its face, with this requirement?” (para 7.188).WT/DS219/R
Page E-130
basis for different determinations, each one in the context of the provision in relation to which it is
being made.  Brazil observes that, in the present case the EC has never even pretended during the
investigation and in the Provisional and Definitive Re gulations that its considerations relating to its
Article 4 determinations served any other purpose beyond that one.  Under Article 4 the EC merely
looked at the status of the Applicants as “Com munity Producers”.  The EC make its pretensions
before this Panel but these must fail as at the relevant time the EC did not make the substantive link it
now makes between Article 4 on the one hand and Articles 3.4 and 3.5 on the other.
Brazil recalls that its statement in the above-mentioned paragraph 16 was made as a counter
argument to the EC’s contention whereby it had allegedly examined the injurious impact of such own
imports by that major part of the EC industry under Article 3 and under Article 4.1 in the Provisional
and Definitive Regulations.  The main thrust of that counter argument was that this EC’s contention isbaseless and that the examinations that the EC ha d carried out for the two purposes (Article 4.1 on the
one hand and Articles 3.4 and 3.5 on the other) each had its own role so that one (re: 4.1) could not
compensate for failures of the other (re: 3.4 & 3.5).
Brazil position is in line with the principles established by the DSB.  In the particular
circumstances of this case, where the Applicants ha ve not been found by the EC “to be related to the
exporters or importers or are themselves importers of the allegedly dumped product”
27, that
examination which the EC had carried out for the purpose of the definition of the domestic industryindeed served no other purpose and was therefore totally oblivious to the EC’s (plainly inadequate)
Article 3.4 and 3.5 analysis.
Brazil recalls the relevant part of the Appellate Body report in US-Hot-Rolled Steel from
Japan  with regard to the relationship between Articles 4 and 3 where it held that, “an injury
determination, under the  Anti-Dumping Agreement ,  is a determination that the domestic producers
‘as a whole’, or a ‘major proportion’ of them, are ‘injured’.  This is borne out by the provisions ofArticles 3.1, 3.4, 3.5, 3.6, and 3.7 of the Agreement, which impose certain requirements with respect
to the investigation and examination leading to an injury determination.  Investigating authorities are
directed to investigate and examine imports in relation to the ‘domestic industry’, the ‘domestic
market for like products’ and ‘domestic producers of [like] products’.  The investigation and
examination must focus on the totality of the ‘domestic industry’ and not simply on one part, sector or
segment of the domestic industry.”
28
This requirement to examine the industry as a whole, does not, however, necessarily mean
that certain parts of the industry may not also be looked at separately.  In US-Hot-Rolled Steel , the
Appellate Body further confirmed that “it may be highly pertinent for investigating authorities to
evaluate the relevance of the fact that a significant proportion of the domestic production of the like
product is shielded from direct competition with imports, and that the part of the domestic industry
that is most likely to be affected by th e imports is limited to the merchant market”.29  The Appellate
Body thus found that such a more specific examination of segments of the industry is still compatible
with the requirements resulting from Article 4.1.
Brazil observes that if such a specific exam ination into major segments of the domestic
industry which are “shielded from direct competition with imports” is acceptable (albeit as part of an
overall examination of the situation of the entire industry), it must be even more acceptable in the
present case where those own imports do not relate to the “dumped imports” as such.  Thus, Brazil
submits that, as held by the Appellate Body in the above-mentioned case, such an examination is even
                                                     
27 Article 4.1(i), emphasis added.
28 WT/DS184/AB/R, at para 190.
29 At para 198.WT/DS219/R
Page E-131
required as an obligation under Article 3.1 (re: “positive evidence” and “objective examination”),
particularly for the purpose of the subsequent Articles 3.4 and 3.5 analyses.30
Brazil notes that despite the fact that in the present case the EC authorities were perfectly
aware that a major part of the EC industry was able to  shield itself and in fact has been shielding itself
from competition with imports through own outsourced imports (as well as injuring other Applicants
with these imports), the EC has still not conducted, let alone considered it “highly pertinent,” an
evaluation of the relevance of that fact primarily for the purpose of its Articles 3.4 and 3.5 analyses.
However, Brazil continues to submit that, notwithstanding Article 4.1, the EC’s examination and
evaluation under Articles 3.4 and 3.5 has been totally inadequate particularly as it failed to consider
these “own imports” as a “relevant economic factor” for the purpose of its Article 3.4 analysis31, and
has subsequently also failed properly to assess the full impact of that factor on the EC industry (asalso referred to above) for its causality analysis under Article 3.5.
To the EC
(b) How do you respond to Brazil's assertion in para. 16 of its oral statement in
particular with reference to an examination being carried out for the purpose of
the definition of domestic industry in Article 4?  Would this necessarily both in
general and in this particular case be inadequate for the purpose of Article 3.4
and/or 3.5 analysis?  Why or why not?
(c) The EC asserts in its second written submission that Brazil has nowhere
explained how, even had they existed, such outsourcing arguments could of
themselves have affected the findings on causation.  Could you specify in detail
what was required, in the view of the EC  from Tupy to submit in this regard?
I. ISSUE 18:  "NO TIMELY OPPORTUNITIES TO SEE ALL RELEVANT INFORMATION"
To Brazil
Q24. Does Brazil agree with the EC assertion in  para. 157 of the EC oral statement at the
second meeting that "It appears that this claim is now solely concerned with information on thecurrency conversion rates used in relation to  allowances in the dumping calculation"?
Reply
Brazil clarifies that its claims under Issue 9 are limited to the exchange rates used in the
currency conversions relating to adjustments (see also Brazil’s answer to the Panel’s question 12
above).
Other
To Brazil
Q25. Could Brazil comment on the EC assertions in, inter alia , paras. 9, 130, 140 of the EC's
oral statement at the second substantive meeting that certain "new claims" are inadmissible?
                                                     
30 At para 190 et seq .
31 See most recently para 12 et seq . of Brazil’s Oral Statement during the second substantive meeting,
where Brazil referred to such own imports / outsourcing as an injury factor affecting the EC industry as a whole,
comprising of both “shielded” and “unshielded” EC Applicants.WT/DS219/R
Page E-132
Reply
Brazil disagrees with the EC and submits that all of these so-called “new claims” are nothing
but arguments  in support of the claims set out in Brazil’s Panel Request.  Regarding each of the EC’s
allegations, Brazil’s responds as follows:
Article 15 (paras 14 and 25 of the EC’s Second Oral Statement) .  Brazil recalls that the Panel
Request lists Article 15 and provides a description as to the nature of the claim (see paras 33 and 35).
Consequently, TOR covers the first and the second sentences of Article 15 as well as the issue of
‘exploration of the possibility of constructive remedies’.  However, Brazil is pleased to note that by
making this claim the EC seems accept that Article 15 establishes multiple  obligations.
Article 2.4 (para 66 of the EC’s Second Oral Statement) .  Brazil recalls that Article 2.4 is
listed in Brazil’s Panel Request and an elaboration as to the nature of the claim is also provided, i.e.
that the EC’s comparison between the export price and normal value was not fair (see paras 17 et seq.
of the Panel Request).
Article 6.2 and 6.4 (paras 130 and 140 of the EC’s Second Oral Statement) .  Brazil recalls
that Articles 6.2 and 6.4 are listed in Brazil’s Panel Request.  Brazil also recalls that the substance of
Article 6.2 claims is described in para 8 of Brazil’s Panel Request (“…an thereby also denied Tupy
the full opportunity for the defence of its interest in these among other respects ” – emphasis added)
and Article 6.4 claims in the chapeau of para 10.
In any case, Brazil denies that the EC’s ability to defend itself has been prejudiced in any
way.32  Indeed, the EC has not offered any supporting particulars to show that its ability to defend
itself in the course of the Panel proceeding has been prejudiced; even the EC’s detailed answers to
Brazils’ arguments demonstrate the opposite.
Q26. Are the EC's 10 August 2001 "invitation" to Tupy to apply for a review, and Tupy's
response thereto, part of the Panel's record?  If so, please cite to the relevant portion of the
record.  If not, please provide or explain why not.
Reply
The EC's above mentioned 10 August 2001 "invitation" and Tupy's response thereto are not
part of the Panel's record.  Brazil refers the Panel to the relevant part of its answer to question 6
above.
To the ECQ27. With respect to each of the claims which you have indicated you view as outside the
Panel's terms of reference, could you indicate how, if at all, your interests have been prejudiced
over the course of the Panel proceedings?
To both parties
Q28. With respect to the reference made to the issu e of reviews, could both parties specify the
nature and scope of  reviews conducted by the EC since the investigation that is the subject of
these panel proceedings?
                                                     
32 See the Appellate Body’s Report in Korea – Definitive Safeguard Measure on Imports of Certain
Dairy Products , WT/DS98/AB/R, para 131.WT/DS219/R
Page E-133
Reply
Brazil refers to the relevant parts of its answer to question 6 above where it submits that the
EC’s “review” is not covered by the TOR and is therefore outside the scope of this proceeding, and
that that contention must equally be rejected by  means of Article 17.5(ii) of the AD Agreement, as
that matter did not form part of the original record of the EC investigation.
In any event, as further elaborated in Brazil’s answer to question 6 above, also on its own
merits, that “review” is totally irrelevant to this proceeding.
Brazil further observes that the EC’s attempt to portray this “review” as if it were initiated
merely to respond to the Brazilian exporter and/or to Brazil’s wishes is rather perplexing.  Did the ECreally have to go through all the trouble, as it seems to allege, of a “full dumping review” regarding all
the six countries covered by the original investig ation in order to assess the implications of the
Brazilian currency devaluation?  It is almost unthinkable that a responsible investigating authority
would expose exporters from six countries to hea vy financial and other liabilities involved with
defending their respective interests only because th e investigating authority is seeking to satisfy the
authorities and one exporter company in one of these countries.
Brazil submits that the EC demonstrates the confusion it created by the new “review” as it
presents it in different – and conflicting - ways depending on the forum where such a presentation is
being made.  Brazil observes that even before this Panel the EC had presented conflicting viewsregarding the EC’s own position on this “review”.  In  the EC and for its own internal constituency, the
EC presents the “review” as if it is meant to take account of the DSB decisions in Bed Linen .  In this
Panel preceding the EC seems to suggest that this “review” is meant to serve an entirely different
purpose, i.e. to be the obvious response to the Brazilian exporter – and now to Brazil’s – wish to
assess the implications of the Brazilian 1999 devaluation.  However, Brazil observes that the EC itselfadmits that the new “review” is not an interim review in  the sense of Article 11.3 of the Basic
Regulation, which parallels Article 11.2 of the AD Agreement.
33  But in so far as the EC is concerned,
for its internal purposes this review is presented as a means to rectify certain methodological errors
following DSB decisions unrelated to this case.  Conversely, in so far as this Panel proceeding is
concerned, the new “review” is, nonetheless, still presented as an interim review.
Further, Brazil notes that the EC again submits that “the facts of the present case have never
warranted such a step” of self-initiating a review.34  At the same time, the EC suggests that such a
review could have, in any event, only been initia ted “until the reasonable period [which the EC has
determined in all cases as one year] has expired”.35  The EC confirmed moreover that the “review”
that it refers to was “initiated at the request of another [i.e. not the Brazilian] exporter”.36  And to sum
up this circled line of argument, the EC continues to pretend that the “review” which it has initiated isits response to the argument which Brazil has made under its Issue 3.  Even assuming, arguendo , that
the new “review” is indeed the review to which Brazil referred in Issue 3, why was that review
unwarranted according to the EC in August 2000
37 but is considered to be warranted now?  Brazil
submits that this is but another example showing the failures of the EC’s arguments.  As Brazil has
already had the opportunity to point out38, the question whether a self-initiated review is warranted or
                                                     
33 As unambiguously implied under section 5 (Procedure) in the EC’s notice of initiation (note the
reliance on Article 2(3) of Regulation 1515/2001 - review in view of DSB reports - rather than on the EC’s
Basic Regulation)
34 EC’s Second Oral Statement, para 36.
35 EC’s Second Oral Statement, para 38.
36 See the EC’s answer to the Panel’s questions 143 and 144 and para 9 of ECSS.
37 EC’s Second Oral Statement, para 36.
38 Brazil’s answer to the Panel’s question 33 after the first substantive meeting.WT/DS219/R
Page E-134
not is a substantive one.  It relates to the need for the continued imposition of the duty, which is
totally unrelated to timing issues or other consideration to satisfy the EC’s conveniences.  The EC
fails to give a coherent presentation, not even a solid presentation, of the nature, scope and purpose of
its “review”, thus adding to the confusion it has created with the initiation of that “review”.  Even
more importantly, this lack of direction must mean that this EC “review” has no relevance whatsoeverand clearly cannot serve the purpose that the EC seeks to give to it in this proceeding.
Finally, during the second substantive meeting with the Panel, the EC contended that its
initiation of the new “review” was meant to anticipate the Panel’s possible ruling in this proceeding
whereby the EC should have initiated a review as allegedly requested by Brazil under its Issue 3.  This
fatally premature and misplaced contention must equally fail.  In the first place, should the Panel
accept Brazil’s claim under Issue 3, the proper way for the EC to remedy the situation would be torevoke the duty altogether rather than  merely to review it.WT/DS219/R
Page E-135
LIST OF NEW EXHIBITS
55. Letter dated 10 August 2001 from the European Commission to Tupy.
56. Answering letter dated 14 August 2001 from C ounsel to Tupy to the European Commission.WT/DS219/R
Page E-136
ANNEX E-8
REPLIES OF THE EUROPEAN COMMUNITIES
TO QUESTIONS OF THE PANEL – SECOND MEETING
A. ISSUE 1: "NO SPECIAL REGARD TO BRAZIL AS A DEVELOPING COUNTRY", "NO
CONSTRUCTIVE REMEDIES EXPLORED"
To Brazil
Q1. As a result of the meetings between Braz ilian and EC government officials, did the
Brazilian government transmit to Tupy the possibility of pursuing a price undertaking with the
EC?  If not, why not?  If so, how did Tupy react?  Provide supporting evidence.
Q2. We note that Article 12.2 states " Public notice shall be given of any preliminary or final
determination, whether affirmative or negative, of  any decision to accept an undertaking pursuant
to Article 8, of the termination of such an undertaking,…. ". How and to what extent is this
relevant here?
To the EC
Q3. With reference to the relationship between th e obligations in Articles 12.2 and Article 15
of the Anti-Dumping Agreement , comment on Brazil's response to Panel Question 13 stating that
the EC did not mention in the Provisional or Definitive Regulation that the possibility of an
undertaking had been explored with regard to the Brazilian exporter.
Reply
As the EC has stated,1 it does not publish information regarding undertakings except in regard
to companies that have offered one.  The rationale for this policy is that undertakings are primarily a
matter for exporters, who best know their interests and their plans.
The matters covered by Article 12.2 do not cover the exploration of constructive remedies
that is required by Article 15. Article 12.2 covers, inter alia , “any preliminary and final
determination” of dumping and injury, and “any decision to accept an undertaking pursuant to
Article 8”.  The reference to Article 8 shows that Article 12.2 applies only where the exporter has
actually proposed an undertaking since Article 8.1 provides explicitly that “proceedings may be
suspended or terminated … upon receipt of satisfactory voluntary  undertakings from any exporter
….” (Emphasis added).  As Tupy has never proposed an undertaking, the obligation under
Article 12.2 to explain why an undertaking has been accepted or rejected did not apply in this case.
Furthermore, the list of topics in Article 12.2.1 is limited to matters associated with the
determinations of dumping and injury.  Article 12.2.2 is more generally phrased (“all relevantinformation on matters of fact and law and reasons which have led to the imposition of final
measures, or the acceptance of a price undertaking”).  Nevertheless, the phrase “have led to”, implies
those matters of fact and law that justified the imposition of such measures.  The exploration of
possibilities of constructive remedies is not such a matter since at most it might lead to the imposition
                                                     
1 EC Answer to Questions from the Panel at the First Substantive Meeting, question 13.WT/DS219/R
Page E-137
of remedies which were less stringent than those that would otherwise be justified.  The context
supports this interpretation since the only matters referred to “in particular” in subparagraph 12.2.2
are, in addition to the information described in subparagraph 2.1, the reasons for acceptance or
rejection of relevant arguments or claims, and the basis for decisions made under Article 6.10.2.
Furthermore, a specific mention is made of the requirement for the protection of confidential
information.  As the history of the current dispute demonstrates, the exploration of constructive
remedies can involve communications at a diplomatic level which the EC regards as “by nature
confidential” in the sense of Article 6.5.
To both parties
Q4. With reference to Brazil's assertion in para. 20 of its second written submission and
Brazil's response to Panel Question 4 following the first meeting, are undertakings other than
price undertakings provided for by the Anti-dumping Agreement ?  How, if at all, is Article 8.1 of
the Anti-Dumping Agreement  relevant in this context?
Reply
Article 8.1 provides for “undertakings from any exporter to revise its prices or to cease
exports to the area in question at dumped prices so that the authorities are satisfied that the injurious
effect of the dumping is eliminated”.  In the EC’s view these options achieve the same result inpractice, since in the second case it would be necessary to specify the price which would eliminate
injurious dumping, which would be the revised price under the first case.  Consequently, the EC
regards all undertakings envisaged under the Article 8.1 as essentially price undertakings. The EC has
no view whether Article 15 permits action beyond the scope of Article 8.1.
Q5. Previous panels have indicated that the application of the "lesser duty rule" and "price
undertakings" are possible constructive remedies under Article 15 of the Anti-Dumping
Agreement.  Can both parties suggest any other remedy that could be seen as constructive in
terms of Article 15?
Reply
The EC does not have any other examples of possible constructive remedies to suggest.
B. ISSUE 3 : "INAPPROPRIATE  MEASURES"
To Brazil
Q6. Can Brazil comment on para. 39 of the EC oral statement at the second meeting?
Reply
C. ISSUES 6 & 10:  "NO PROPER CONSIDERATION OF TAX NEUTRALISATION";  "NO PROPER
BASIS TO ASSESS PIS/COFINS INDIRECT TAXES"
To the EC
Q7. Did the EC have available to it in the record of the investigation all of the information
that would have been required to conduct a calculation of PIS/COFINS adjustment on a more
thorough or a comprehensive basis?  If so, cite to  the relevant portion of the record.  If not, whyWT/DS219/R
Page E-138
did the EC not request the information that would have been necessary for such a more
extensive calculation?
Reply
All Tupy’s export and domestic prices were available in the record of the investigation that
was disclosed to Tupy.  However, the EC does not agree that the use of all these data on a more
thorough or comprehensive basis would have necessarily led to a more precise adjustment.  The use of
the 20 most-exported models was not the only ‘reasonable basis’ that the EC had to use in order to
grant Tupy this unclaimed adjustment.  As can be seen on EC's letter of 28 February 20002, the EC
had also to use data pertaining to all exports rather than those of the exports of the product concerned.
The text is as follows (emphasis added):  ' Tupy received on a total amount of 159.335.000 real
exported 2.491.000 real returned PIS/COFINS taxes paid on materials used for the production of
exported goods. This is the amount 'refunded in respect of the product exported to the Community'.
The above amounts refer to all exports of all products and have been taken as a reasonable basis as
the total turnover of the company was the only one that Tupy has been able to reconcile during the
on-the-spot verification.'
In the course of investigations it is necessary for investigators to make pragmatic decisions
for dealing with information which is incomplete or unsatisfactory.  The procedure for using ‘facts
available’ in accordance with Article 6.8 and Annex II of the Agreement is an elaborate one, and, as
exporters know, tends to lead to less favourable results.  In this instance Tupy, having presented nocoherent claim for an adjustment itself, acquiesced in the formulation by the EC of an adjustment
based on the 20 most-exported models.  It was a pragmatic solution, that was acquiesced in by Tupy
at the time and was much to its advantage.
Q8. Why did the EC resort to the use of data of  the 20 most exported types in calculating the
PIS/COFINS adjustment?  Was it exclusively because of the "constraints of time and
personnel" that you refer to in para. 84 of  your oral statement at the second meeting?
Reply
The judgement made by the EC investigators was that, in the circumstances of the
investigation, given the data in question and the significance of the outcome of the calculation relativethe size of the dumping margin, the use of a key based on the 20 most-exported types was appropriate
and reasonable.  Therefore it was not exclusively because of personnel and time constraints.
It should be noted that Tupy at no time during the investigation proposed any other reasonable
method or provided any assistance on this issue to the EC investigators.  Rather, it argued, in the faceof the evidence and data available to the EC and its elf, that the adjustment for PIS/COFINS should be
5.37 per cent.  It persisted in this claim until after provisional disclosure
3, when all the facts were
known to the EC as well as to Tupy.  The EC considers that taking account of these particular
circumstances, even assuming that it missed 0.03 per cent of an unclaimed adjustment, this does not
render the comparison between normal value and export price 'unfair' as that term is used inArticle 2.4 of the anti-dumping agreement.
Q9. In an investigation not involving "facts available" or "sampling" within the meaning of
the Anti-Dumping Agreement ,  what is the legal basis that permits or does not preclude the use
by an investigating authority of data from only  a selection of transactions or the use of an
"allocation key" for the purposes of calculating adjustments?
                                                     
2 Page 7 of Annex II, Exhibit BRL-11
3 See Tupy's letter of 13 June 2000, page 8, point 2.7.5, Exhibit BRL-17WT/DS219/R
Page E-139
Reply
In paragraph 82 of its Second Oral Statement the EC drew the Panel’s attention to
Article 6.14 of the Agreement.  This provision entitles the investigating authorities to take the kind ofapproach adopted in this case by the EC when the progress of the investigation had been considerably
impeded by Tupy’s failure to supply the information which had been requested of it.  The use of the
‘facts available’ procedure in Article 6.8 would it self substantially interfere with the expeditious
handling of the investigation if it were to be invoked on every occasion that the exporter failed to
provide exactly what had been demanded by the investigators.  Consequently the Agreement allows
investigators a margin for making pragmatic judgements in order to reach a determination of the
matter.  It should be noted that the adjustment proposed by Tupy itself involved the use of anallocation key since it made the (unlikely) assumption that the PIS/COFINS tax rate for each product
type was at the level of the average of all Tupy products (including those not covered by the
investigation).
To Brazil
Q10. Could Brazil comment on the EC's answer to Panel question 55? Even assuming
arguendo  that the normal value was calculated net of the IPI tax, would this preclude the
necessity to consider whether or not the IPI pr emium credit would be potentially the subject of
an adjustment?
D. ISSUE 9:  "NO PROPER CURRENCY CONVERSIONS"
To Brazil
Q11. With respect to the EC's assertion at para. 77 of its oral statement at the second
meeting, did Tupy request information on rates of exchange used for allowances?  Please cite to
the relevant portions of the record of the investigation.
Q12. Could Brazil clarify whether and to what ex tent its claim is now limited to the exchange
rates used in conversions relating to adjustments?  Please indicate how this is reflected in the
allegation stated in para. 21 of your Panel request.
To the EC
Q13. Could the EC expand upon the explanations provided in response to Panel Question 88
following the first meeting – in particular: 1.  clarify the meaning of "the allowance for credit
cost should be based on the new export invo ice values" and why these were not used in the
context of allowances for credit costs; and 2. provide a more extensive account of the
methodologies used concerning warranties and commissions?
Reply
The EC has noticed an error in table contained in Exhibit EC-25 which accompanied its
answer to Question 88.4  The EC apologises for the confusion this may have caused and takes this
                                                     
4 The figures in the eighth column, with heading ‘Monthly exchange rate used by the EC’ were not the
monthly rates used to convert the three allowances (cre dit, warranty and commissions) into Real, but the daily
exchange rates that were used to covert the export invoice value into Real.WT/DS219/R
Page E-140
opportunity to present a new version of the table (E xhibit EC-28A), containing additional information,
which it trusts will be of greater assistance to the Panel.5
At the provisional stage of the investigation, the EC converted both the (export) invoice
prices, and the allowances claimed by Tupy (in foreign currency rather than in Real as requested bythe EC), at the monthly exchange rates, as provided for in the EC’s questionnaire, as is the EC’s usual
practice. In its comments on the provisional disclosure.
6  Tupy raised the issue of the conversion rates
in connection with the export price, but not in regard to the various allowances.  The EC responded by
changing to a system of daily exchange rates fo r the export price, but for three allowances it
maintained the monthly rates.  The reasons were as follows.
1. Allowance for credit cost.7
In the case of credit costs, there are no items in Tupy’s accounts, corresponding to those that
are found for costs such as packaging or transport, th at permit the adjustment to be calculated directly
for individual sales.  Credit costs are therefore calc ulated as a percentage (based on current interest
rates) of the invoice price.  In converting the invoice prices into Real for this purpose the EC kept inplace its ordinary approach of monthly average exchange rates (which it has used in the provisional
measures).  There were several reasons for taking this approach.  Firstly, Tupy had made no requests
concerning conversion rates for the allowances.  Secondly, because the allowances were themselves
small compared to the export price, any differences arising from the application of the different rates
would be very small.  Thirdly, the monthly-rate system produced figures that were actually slightly
more favourable to Tupy than the ones it had itself proposed.
2. Allowance for warranty and commissions.
For warranty and commission costs, like credit costs, there are no clearly separate items in the
accounts associating particular costs with export sales to the EC.  Instead, as requested by Tupy, for
each consignment the EC used a fixed percentage (0.0312 per cent, based on an insurance rate) of the
export price to calculate the amount for the warranty, and a varying percentage of the export price
(depending on the customer) for the commission.  In converting the export price for these purposes
the monthly rate was retained for the same reasons that it was used in the calculation of credit costs
(above).
Q14. Can the EC explain how its response to Pa nel question 88 following the first meeting can
be reconciled with para. 52 of the Definitive Regulation?
Recital (52) of the definitive Regulation refers to the conversion of the export price.  The
conversion of the adjustments into Real was a correction of misreported data by Tupy, which wasrequired by the Questionnaire instructions to report these adjustments into Real.  As explained in
answer to Question 15, Article 2.4.1 is aimed at export prices and their conversion, and not at
conversions made regarding adjustments.  Correct reporting by Tupy would have made currency
conversions, except for the export price, unnecessary. If Article 2.4.1 were to be applied mechanically
to such conversions an exporter would be able to distort the outcome of the calculation by its choiceof the currency in which it reported costs associated with the sale.
                                                     
5 The new material is in italics.
6 Tupy’s letter of 30 March 2000, page 35, points 13 to 16, Exhibit BRL-13.
7 EC Answer to Questions from the Panel at the First Substantive Meeting, question 88, para. 123.WT/DS219/R
Page E-141
To both parties
Q15. How and to what extent does the obligation in Article 2.4.1 to perform currency
conversion using the rate of exch ange on the date of sale apply to the adjustments at issue under
this claim?  Is this relevant or applicable here ?  What are the legal obligations that govern the
calculation of such adjustments and allowances?
Reply
It should be said that in this investigation there was no dispute as to whether the rate of
exchange on the date of sale should be applied.  The question that arose was whether to use a monthly
average rate on the date of sale or a daily average rate on the date of sale.
The obligation in Article 2.4.1 to perform currency conversions using the rate of exchange on
the date of sale refers to export sales’ prices and not to conversions that might be necessary in the
course of making adjustments.
This is apparent from the text of Article 2.4.1, which reads as follows (emphasis added):
When the price comparison under this paragraph requires a conversion of currencies ,
such conversion should be made using the rate of exchange on the date of sale, provided that
when a sale of foreign currency on forward markets is directly linked to the export sale
involved, the rate of exchange in the forward sale shall be used.  Fluctuations in exchange
rates shall be ignored and, in an investigation the authorities shall allow exporters at least
60 days to have adjusted their export prices to reflect sustained movements during the period
of investigation.
The emphasized words show that what the paragraph refers to is export sales’ prices.  The primary
context of this provision is provided by Article 2.4, which sets out its objective in the first sentence:
“A fair comparison shall be made between the export price and the normal value”.  If the ‘date of
sale’ criterion were applied mechanically to every conversion that had to be made in the course of an
investigation the result would be anything but fair.
In many cases cost differences leading to differences in market value and to adjustments
between domestic and export prices are not incurred on the date of the export sale.  Purchases of
packing material, inland transport to the harbour, warranty expenses, costs linked to physical
differences, etc., are, depending on the nature of each expense, incurred before or after the date of the
export sale.
A conversion of all these data at the exchange rate of the export sale for the purpose of an
anti-dumping investigation would be a pointless and burdensome task for the exporting producer and
would render the verification by the investigating authorities impossible, because no amount reported
would correspond to the data available in the accounts of the company.  That is why the EC normally
requires, as it did in this case, that companies report all data as contained in their accounting records.
E. ISSUE 12:  "NO PROPER CONSIDER ATION OF IMPORT VOLUME TRENDS"
To Brazil
Q16. Could Brazil comment on the EC statement in  paragraph 88 of its oral statement at the
second meeting that "Brazil appears to confirm the EC's understanding that Brazil is not
claiming an infringement of Article 3.1 other than as an automatic consequence of alleged
infringements of other parts of Article 3"?WT/DS219/R
Page E-142
F. ISSUE 13: "NO PROPER CONSIDERATION OF ALLEGED UNDERCUTTING"
To Brazil
Q.17 Could Brazil comment on the EC assertions  in para. 95 of its oral statement at the
second meeting regarding the price undercutting analysis?
Q18. Could Brazil comment on the EC' assertion in para. 122 of its oral statement?
G. ISSUE 16:  "INAPPROPRIATE CONSIDERATION OF INJURY INDICATORS"
To the EC
Q19. Are there any worksheets or investigation notes which formed the basis for Exhibit EC-
12?  If so, please provide copies or explain why not?
Reply
The conclusions recorded in Exhibit EC-12 are based on worksheets, but these contain highly
confidential business information relating to the performance of individual EC producers, and the EC
would prefer not to release them.
Q20. Could the EC confirm and substantiate that the Exhibit EC-12 was written within the
time period  of the investigation?
Reply
The EC confirms that Exhibit EC-12 was written on 14 April 2000, i.e. within the time period
of the investigation.
EC is not clear what evidence the Panel would regard as appropriate to substantiate this fact.
It is not the practice of the EC anti-dumping division to number its ‘Notes for the File’, but merely to
date them.8
Q21. Taking note of what was stated in pa ra. 122 of your second oral statement, could you
please state how you reconcile this with the requirements of Article 3.6? Could you specifywhether this is or is not relevant here?
It was with Article 3.6 in mind that the EC made its comments on the allocation of data on
return on investments, etc., in its second oral statement.  For many aspects of the injury investigation
on malleable fittings, data pertaining to the production of the like product were available.  Where forcertain of the injury criteria this was not possible the EC, in accordance with Article 3.6, had resort to
data relating to “the production of the narrowest group or range of products which includes the like
product”.  In several cases this involved using information contained in annual reports.
To both parties
Q22. Is this the first time in either the course of the investigation that the EC has supplied to
Brazil/Tupy, or in this Panel proceeding that the EC has supplied to Brazil the information
                                                     
8 The EC can provide other examples of such notes should the Panel so wish.WT/DS219/R
Page E-143
concerning "return on investments" that is contained in paragraph 123 of the EC's oral
statement at the second meeting, or any other information relating to this factor?
Reply
In the disclosure documents (Exhibits BRL-11 and BRL-16), in an aggregated form, Tupy
was provided with the profitability of the Community industry, in terms of net profit before taxes on
the net turnover.  It was been provided, in an a ggregated form, with the turnover relating to the
product concerned.  The details of the total turnover (i.e. relating to the whole activity of the
company) and of the turnover relating to the prod uct concerned per company were provided in the
non-confidential version of the questionnaire replies, that Tupy exercised its right to consult.
Moreover, the annual accounts for four out of six Community producers for different periods werecontained in the non-confidential files.
9
H. ISSUE 17:  "CAUSATION"
Q23. With reference to para. 16 of Brazil's oral statement at the second meeting:
To Brazil
(a) Would an examination carried out for th e purpose of the definition of domestic
industry in Article 4 necessarily both in general and in this particular case be
inadequate for the purpose of Article 3.4 and/or 3.5 analysis?  Why or why not?
To the EC
(b) How do you respond to Brazil's assertion in para. 16 of its oral statement  in
particular with reference to an examination being carried out for the purpose of
the definition of domestic industry in Article 4?  Would this necessarily both in
general and in this particular case be inadequate for the purpose of Article 3.4
and/or 3.5 analysis?  Why or why not?
Reply
In general, an examination merely for the purpo se of determining the scope of the ‘domestic
industry’ as defined in Article 4 would not be  adequate for the examination under Article 3.4 of
whether that industry was suffering injury, or under Article 3.5 of what was the cause of that injury.
The issues involved in these provisions are quite di stinct.  Nevertheless, information gathered in the
pursuit of one matter may be of use in one of the other contexts.  In the present investigation the
distinction between the different examinations was reflected in the enquiries pursued by the EC
authorities.  The EC investigated whether it was appropriate to exclude certain domestic producers in
accordance with Article 4.1(i), and concluded that it was not.10
The EC understands that Brazil’s complaint (in so far as it goes beyond a concern about
outsourcing per se ) concerns Article 3.5 and the allegation that the domestic industry injured itself by
giving away market share to those companies to which it outsourced production.  In the context of
Article 3.5, the EC investigated the levels of imports of malleable fittings from countries other than
those accused of dumping, and found them not to be a significant cause of injury to the domesticindustry.  Those imports necessarily included any production that was the result of outsourcing.  Since
the imports as a whole from each of these countries were found not to be a significant cause of injury,
                                                     
9 The annual reports of the other two companies are not publicly available documents.
10 Prov. Reg. rec. 134; Def. Reg. recs. 65 to 68.WT/DS219/R
Page E-144
the same was necessarily true of that part of those imports (however large) which resulted from
outsourcing.  Clearly, this investigation was quite different from that involved in the determination of
the ‘domestic industry’.
The EC does not understand how (if at all) Brazil argues that outsourcing was relevant to the
assessment of the condition of the domestic industry that is required by Article 3.4.  In any event, the
EC’s investigation under Article 3.4 was quite distinct from that under Article 4.
(c) The EC asserts in its second written submission that Brazil has nowhere
explained how, even had they existed, such outsourcing arguments could of
themselves have affected the findings on causation.  Could you specify in detail
what was required, in the view of the EC  from Tupy to submit in this regard?
Reply
As stated above, the EC understands that Brazil claims that Tupy argued that outsourcing was
causing the domestic industry to lose market share.  For such an argument to have been sustained itwould have been necessary (at the least) to show that imports from the companies to which
production had been outsourced were a significant cause of injury to the EC domestic industry.  Tupy
did not submit evidence to support such an allegati on.  (Nor did the EC’s own investigations produce
such data.)
I. ISSUE 18:  "NO TIMELY OPPORTUNITIES TO SEE ALL RELEVANT INFORMATION"
To Brazil
Q24. Does Brazil agree with the EC assertion in  para. 157 of the EC oral statement at the
second meeting that "It appears that this claim is now solely concerned with information on the
currency conversion rates used in relation to  allowances in the dumping calculation"?
OTHER
To Brazil
Q25. Could Brazil comment on the EC assertions in, inter alia , paras. 9, 130, 140 of the EC's
oral statement at the second substantive meeting that certain "new claims" are inadmissible?
Q26. Are the EC's 10 August 2001 "invitation" to Tupy to apply for a review, and Tupy's
response thereto, part of the Panel's record?  If so, please cite to the relevant portion of the
record.  If not, please provide or explain why not.
To the EC
Q27. With respect to each of the claims whic h you have indicated you view as outside the
Panel's terms of reference, could you indicate how, if at all, your interests have been prejudiced
over the course of the Panel proceedings?
Reply
The EC takes the view that in all the cases in which it has raised this objection its interests
have been prejudiced by the lack of adequate notice of the issues.  The scope of the claims that are
explicitly made in Brazil’s panel request is already exceptionally broad.  The EC is entitled to theperiod that elapses between the establishment of the panel and the presentation of the complainant’sWT/DS219/R
Page E-145
first written Submission to prepare its defence.  Such preparation is only possible if the complainant
adequately specifies its claims in its panel request for incorporation into the terms of reference.
To both parties
Q28. With respect to the reference made to the issu e of reviews, could both parties specify the
nature and scope of  reviews conducted by the EC since the investigation that is the subject of
these panel proceedings?
The only review commenced in regard to malle able iron fittings is the one initiated in
December 2001 (Exhibit EC-26).  This states that “The  review is limited in scope to the examination
of dumping by those exporting producers in the countries concerned whose duty rates are based on a
dumping methodology at issue in the reports and whic h submit a full questionnaire reply with the time
limits set out in points 6(a)(i) and (ii) of the pr esent notice. …  The investigation shall cover the
period from 1 January 2001 to 30 September 2001.”  The “reports” in question are those of the Panel
and Appellate Body in ‘European Communities – Anti-Dumping Measures on Imports of Cotton-
Type Bed-Linen from India’.
Since a new investigation period has been established the EC will examine the situation on
the basis of new facts.  Thus, had Tupy participated in the review, the EC would have looked at price
data from the period after devaluation and would necessarily have examined (as Tupy had argued)
whether the dumping margin had disappeared following that event.
The first time that Tupy raised doubts about the scope of the review was in a letter to the EC
dated 22 April 2002, more than four months after the publication of the notice of initiation.  In a letter
dated 7 May 2002 the EC offered to hold a hearing for Tupy where the questions it had raised
concerning the scope of the review, could have been discussed. Tupy has never replied to this offer.This is another illustration of the obstructive attitude Tupy has taken throughout the proceedings.WT/DS219/R
Page E-146
ANNEX E-9
COMMENTS OF BRAZIL ON THE RESPONSES OF THE
EUROPEAN COMMUNITIES TO THE PANEL'S
QUESTIONS – SECOND MEETING
(28 June 2002)
A. ISSUE 1:  "NO SPECIAL REGARD TO BRAZIL AS A DEVELOPING COUNTRY", "NO
CONSTRUCTIVE REMEDIES EXPLORED"
To the EC
Q3. With reference to the relationship between th e obligations in Articles 12.2 and Article 15
of the Anti-Dumping Agreement , comment on Brazil's response to Panel Question 13 stating that
the EC did not mention in the Provisional or Definitive Regulation that the possibility of anundertaking had been explored with regard to the Brazilian exporter.
Brazil welcomes the EC’s admission “that undertakings are primarily a matter for exporters,
who best know their interests and thei r plans”.  It follows that (assuming arguendo  that the EC raised
the possibility of a price undertaking during governmental bilateral talks mentioned during theseproceedings) it should have equally been clear to th e EC that its adequate counterpart in exploring the
possibility of a constructive remedy such as a price undertaking should have been the Brazilian
exporter, “who best know[s its] interests and [its] plans” rather than the Brazilian Government who
had knowledge of neither.
Brazil further observes that the EC does not even address the Panel’s question in relation to
Article 15.
C. ISSUES 6 & 10:  "NO PROPER CONSIDERATION OF TAX NEUTRALISATION";  "NO PROPER
BASIS TO ASSESS PIS/COFINS INDIRECT TAXES"
To the EC
Q7. Did the EC have available to it in the record of the investigation all of the information
that would have been required to conduct a calculation of PIS/COFINS adjustment on a more
thorough or a comprehensive basis?  If so, cite to  the relevant portion of the record.  If not, why
did the EC not request the information that would have been necessary for such a more
extensive calculation?
Brazil submits that convenient “pragmatic soluti ons” resorted to by investigating authorities
cannot override the substantive requirements of the AD Agreement.  Therefore, the EC’s approach in
respect of PIS/COFINS, which lacks any suppor t in the AD Agreement, must be rejected.
Q8. Why did the EC resort to the use of data of  the 20 most exported types in calculating the
PIS/COFINS adjustment?  Was it exclusively because of the "constraints of time and
personnel" that you refer to in para. 84 of  your oral statement at the second meeting?
With regard to the EC’s answer, Brazil recalls the calculation it had made on the basis of the
Brazilian exporter’s 40 most exported product types (and not 20 as the EC) which demonstrated veryWT/DS219/R
Page E-147
clearly that the price difference between the domestic and export prices decreases  where the number
of product types increases.1  Therefore, Brazil has demonstrated that that adjustment was understated
by the EC.  In contrast with the EC’s position that a missing adjustment does not (somehow) render
the price comparison ‘unfair’, Brazil submits that investigating authorities cannot discharge their “fair
comparison” obligation by pragmatism or an administrative convenience.  Moreover, Article 2.4 doesnot make a distinction between “slight” and “grave” violations.
Q9. In an investigation not involving "facts available" or "sampling" within the meaning of
the Anti-dumping Agreement , what is the legal basis that permits or does not preclude the use by
an investigating authority of data from only a selection of transactions or the use of an
"allocation key" for the purposes of calculating adjustments?
Brazil denies that the substantive “fair comparison” requirement in Article 2.4 could be
replaced or limited in any way by a general procedural rule to manage investigations expeditiously in
Article 6.14.  In the same vein, Brazil also rejects the EC’s attribution of its failures to any conduct of
the Brazilian exporter, as this is totally unacceptable.  The obligation to conduct a fair comparison
lays squarely in this respect on the shoulders of the investigating authority.
D. ISSUE 9:  "NO PROPER CURRENCY CONVERSIONS"
To the EC
Q13. Could the EC expand upon the explanations provided in response to Panel Question 88
following the first meeting – in particular: 1. clarify the meaning of "the allowance for credit
cost should be based on the new export invo ice values" and why these were not used in the
context of allowances for credit costs; and 2. provide a more extensive account of themethodologies used concerning warranties and commissions?
Q14. Can the EC explain how its response to Pa nel question 88 following the first meeting can
be reconciled with para. 52 of the Definitive Regulation?
Brazil takes note of the EC’s answers to the Panel’s questions No 13 and 14 and of the new
table (Exhibit EC-28A), which the EC has now provided. Brazil does not see any reason why, neither
how this “new version” could “be of greater assistance to the Panel” as stated by the EC.
Brazil recalls again the EC’s original recorded statements that the conversion of currencies
was based on daily rates.
2  However, in the first submission, the EC first denied but, in the same vein,
admitted Brazil’s claim whereby the conversion of transport  costs was not based on daily rates.3
Then, in its answer to the Panel’s first and second set of questions, the EC had to admit that
none of the credit costs , warranty  and commission  were converted on the basis of its explicitly stated
rates.4
                                                     
1 See Brazil’s calculation of the price difference be tween the domestic prices and the export prices
based on the 40 most exported types  (BRL-54).
2 See the Disclosure Preceding the Definitive Regul ation (BRL-16), Annex II, page 5; the Definitive
Regulation (BRL-19), recitals 51 and 52, and the Transparency Letter (BRL-18), page 4.
3 ECFS, para 220 and 228.
4 See Answers of the European Commission to the Questions from the Panel at the First Substantive
Meeting , question No. 88;  and Answers of the European Commission to the Questions from the Panel at the
Second Substantive Meeting , question No. 13.WT/DS219/R
Page E-148
The EC has now provided a new Exhibit EC-28A.  However, this table seems to provide the
currency conversions for about 400 lines out of more than 16.000 lines of the Brazilian exporter’s
export transactions in the IP.  Brazil submits that such a partial statement of facts is meaningless.  It is
certainly not a “rebuttal” of anything and at best (using the EC’s own words) might merely serve as a
lip-service.  Other than its own failures, the EC ha s nowhere been able to demonstrate that the effect
of the actual rates used, which were not exclusively based on daily rates, were somehow “more
favourable” to the Brazilian exporter.  They demonstrate nothing of the sort.
Brazil cannot accept the EC’s way to attribute its own failures to alleged Brazilian
misconduct.  Brazil notes the EC’s repetitions that the Brazilian exporter had “misreported data
…which was required by the Questionnaire instructions to report these adjustments into Real”.
However, Brazil cannot find such instructions in the Questionnaire (BRL-3) or in any otherdocumentation, like the deficiency letter (BRL-6 ), forming the record of its investigation.
Brazil submits that the clear contradictions between the versions given by the EC must have
only one result namely, that none can be accepted.
To both parties
Q15. How and to what extent does the obligation in Article 2.4.1 to perform currency
conversion using the rate of exch ange on the date of sale apply to the adjustments at issue under
this claim?  Is this relevant or applicable here ?  What are the legal obligations that govern the
calculation of such adjustments and allowances?
Brazil confirms its disagreement with the EC’s suggestions with regard to the relationship
between Articles 2.4 and 2.4.1.  Article 2.4.1 does not apply only to itself, as suggested by the EC, but
to the whole paragraph 4 of Article 2.  The text of Article 2.4.1, which spells out a general rule for
selecting exchange rates, refers explicitly to “the comparison” under Article 2.4.  This provision
respectively requires that the factors to be ultimately compared are the export price and the normal
value, both as adjusted to take due account of "differences which affect price comparability".
Therefore, the chapeau of Article 2.4.1, which does not provide for any separate rules on currency
conversions with regard to different factors, refers to both the conversion of currencies related to the
export price and the allowances to be deducted from the said price.  Finally, Brazil submits that the
EC’s wordy explanations before the Panel do not alte r the record of this case, which include the EC’s
statements that daily rates were used for the conversion of currencies.
G. ISSUE 16:  "INAPPROPRIATE CONSIDERATION OF INJURY INDICATORS"
To the EC
Q19. Are there any worksheets or investigation notes which formed the basis for Exhibit EC-
12?  If so, please provide copies or explain why not?
Brazil would merely observe that the EC does not indicate why it could not make use of the
applicable confidentiality provisions, such as those available under Article 18 (including 18.2) of the
DSU, which provisions are meant to protect exactly the kind of information which the EC prefers not
to release here.  This new EC conduct gives yet another impetus to Brazil’s insistence thatExhibit EC-12 should be ignored altogether.
Q21. Taking note of what was stated in par a. 122 of your second oral statement, could you
please state how you reconcile this with the requirements of Article 3.6? Could you specify
whether this is or is not relevant here?WT/DS219/R
Page E-149
Brazil disagrees with the EC.  The second sentence of Article 3.6 (“[i]f such separate
identification of that production is not possible,…”) shows that the general rule regarding assessment
is laid down in the first sentence.  That is, only if  the separate identification of the domestic
production of the like product is not possible, an investigating authority is obliged to assess the effects
of the dumped imports in relation to the "narrowest group or range of products".  The EC, however,seems to interpret the phrase “available data” in the first sentence from the perspective of an
investigating authority, i.e. whether something was available to the EC.  However, the text of the
second sentence (“for which the necessary information can be provided ” – emphasis added) is clear
enough to suggest that the issue of availability is to be evaluated from the perspective of the domestic
industry, i.e. whether the domestic industry is or is not able to make a separate identification of the
domestic production of the like product and to provide the necessary information.  There is nothing in
the record (as it currently stands) to suggest that the EC industry was not able to make such a separate
identification. Inversely, it is clear from the record that the EC did not even request the data on certain
per se  relevant injury factors from the domestic industry.
To both parties
Q22. Is this the first time in either the course of the investigation that the EC has supplied to
Brazil/Tupy, or in this Panel proceeding that the EC has supplied to Brazil the information
concerning "return on investments" that is contained in paragraph 123 of the EC's oral
statement at the second meeting, or any other information relating to this factor?
Indeed, Brazil agrees that the EC had provided certain aggregated information on the
profitability of the domestic industry.  However, Brazil does not see how the information on
“profitability” is relevant as regards the issue of “return on investments”.  With regard to the annual
reports, Brazil recalls the EC’s written statements, which the EC then also explicitly confirmed orally
in the Second Substantive Meeting with the Panel
5, that the annual accounts of the domestic industry
were available to interested parties whereas this information is, at best, only partial. Indeed, had these
EC’s firm assurances been correct, the Brazilian exporter would have been able to calculate the level
of data used on “return on investments” from the EC  producers’ audited accounts, as suggested by the
EC.  But this is not the case, as the EC now admits that only “the audited accounts for four out of six
Community producers” were made available in the non-confidential file. It follows that the Brazilian
exporter was unable to make that calculation and had thus been deprived even of this possibility to
defend itself.
H. ISSUE 17:  "CAUSATION"
Q23. With reference to para. 16 of Brazil's oral statement at the second meeting:
To the EC
(b) How do you respond to Brazil's assertion in para. 16 of its oral statement particular
with reference to an examination being carri ed out for the purpose of the definition of
domestic industry in Article 4?  Would this necessarily both in general and in this
particular case be inadequate for the purpose of Article 3.4 and/or 3.5 analysis?  Why
or why not?
Brazil welcomes this new EC’s U-turn, which now admits that the EC’s stated reliance on and
references to its examinations for the purpose of Article 4 indeed served no purpose in relation to the
                                                     
5 See Second Oral Statements of the European Co mmunities where the EC stated in para 130 that “the
information used by the EC authorities was drawn from the published  accounts of the companies concerned”
(emphasis added).WT/DS219/R
Page E-150
examinations required under Articles 3.4 and 3.5. But the EC does not take the subsequent step that it
should have taken following that admission.  What is also implied by its admission is that the EC’s
examination of injury for the purposes of Article 3.4 and 3.5 have been totally insufficient and
shallow, as the EC has not looked into all the inju ry indicators that it should have looked at under
Article 3.4 and then also failed to take these, and other factors into account, for its subsequentcausation analysis under 3.5.  In particular, the EC failed to take into account in both these respects
the implications of ‘outsourcing’, including imports  from related companies in Other Third Countries,
as a “relevant economic  factor… and indice(s)…having a bearing on the state of the industry’ under
Article 3.4.
6  Brazil recalls that it had referred to this factor as a cause of injury, other than the
dumped imports, which the EC had to take full account of for its causation analysis under Article 3.5,
but failed to do so, repeating its failed analysis under Article 3.4.7
For some reason the EC chooses to assume that Brazil’s arguments regarding the full
injurious impacts of that ‘outsourcing’ is merely limited to considerations under Article 3.5. Brazil
reaffirms that its arguments do relate to the EC’s failed examinations under both Articles 3.4 AND
3.5.8
(c) The EC asserts in its second written submission that Brazil has nowhere explained
how, even had they existed, such outsourcing arguments could of themselves have
affected the findings on causation.  Could you specify in detail what was required, in
the view of the EC from Tupy to submit in this regard?
Brazil submits that the EC’s contention must be flatly rejected by the Panel, without any
further ado.  As also indicated in its above comments on (b), Brazil is of the view that the EC had all
the relevant information before it, as made available to it by the Brazilian exporter and by others
throughout the original investigation, perfectly a llowing the EC to conduct a full and appropriate
injury examination.  As indicated above, the EC failed to abide by its most basic obligations under theAD Agreement, primarily under Articles 3.4 and 3.5.  The EC’s suggestions that the failures of its
injury examination could result in any way from an alleged obligation on the Brazilian exporter to
“submit evidence to support” its related submissions must be rejected forthwith by the Panel.  The EC
chooses to give the impression as if it misunderstands its own obligations of an investigating authority
as it clearly inverses its role of an investig ating authority with that of an exporter which it
investigates.  Unlike the EC authorities, the Brazilian exporter did not have any investigating powers.
It submitted well-documented information and evidence to support its arguments which the EC shouldhave then further investigate but failed to do so.  The Panel should reject this EC’s line of argument
which is, to say the least, inappropriate for an inve stigating authority such as the EC.  And the Panel
should thus also record, most importantly, that the EC  in fact admits that it failed to conduct a proper
investigation and examination for the purposes of Articles 3.4 and 3.5.
                                                     
6 See BSS paras 263 to 269 under ‘3.3 Outsourcing’.
7 See BSS paras 322 to 326 under ‘2.3 Imports from other third countries’, and further BSS paras 327
to 335 under ‘2.4 Outsourcing’.
8 See also Brazil’s answer to the same question where it further referred to the ‘shielding’ impact of the
imports made by a major part of the EC industry and the implications that this had, and which the EC ignored,on the injury examination for the EC industry as a whole, as well as for the two segments of the industry
(importers and non-importers).WT/DS219/R
Page E-151
OTHER
To the EC
Q27. With respect to each of the claims whic h you have indicated you view as outside the
Panel's terms of reference, could you indicate how, if at all, your interests have been prejudiced
over the course of the Panel proceedings?
Brazil observes that this EC answer remains vague and unspecific.  Brazil is of the view that
the EC’s arguments in this respect have no substantive merit and are meant to serve the EC’s litigation
tactics which, to say the least, are not in line with its responsibilities under the DSU, including
Article 3.8 thereto.  Furthermore, Brazil further observes, if still necessary, that the EC cannot denythat it have had full knowledge of Brazil grievances as these have reflected arguments that have
already been raised by the Brazilian exporter during the investigation and by Brazil during
consultations.
To both parties
Q28. With respect to the reference made to the issu e of reviews, could both parties specify the
nature and scope of reviews conducted by the EC since the investigation that is the subject of
these panel proceedings?
Brazil affirms firstly that the Brazilian exporter reacted to the EC’s “review” during the
timeframe formally agreed with and confirmed by the EC.  Secondly, according to information given
by Tupy to the Brazilian Government, the Brazilian exporter explained to the EC why, given the
confusing nature and doubtful legal basis of that “review” it did not consider its participation in that
“review” to be of its best interest.
9  Moreover, as the Brazilian exporter reportedly also informed the
EC, as a matter of courtesy and fair play, that the EC should not expect to receive the Brazilian
exporter’s replies to the EC’s questionnaire until it is satisfied that the EC would not apply its
questionable methodologies to these replies, Brazil is at  a loss not only with regard to the tone of this
EC answer but also to understand what else the EC was still expecting the Brazilian exporter to add
on this.  Finally, Brazil reminds the Panel that, in Brazil’s view, all such reviews are outside the terms
of reference of the Panel.
Furthermore, as regards the last paragraph of the EC’s answer, it must be noted that while
assessing the convenience to participate in the review, Tupy - in a letter10 dated 22 April 2002 -,
requested a hearing to further discuss issues of its interests.  However, the company then decided that
such hearing was unnecessary in light of the ongoing procedures in the WTO. Brazil stresses,
therefore, the inaccuracy of the EC’s assertion that it “offered” to hold the hearing and that Tupy hadan “obstructive attitude”.
                                                     
9 See Brazil’s answer to Question 28.
10 BRL – Exhibit 57. Letter from Tupy to the Panel from 22 April and EC’s answer from 7 May 2002.WT/DS219/R
Page E-152
ANNEX E-10
COMMENTS OF THE EUROPEAN COMMUNITIES ON
RESPONSES OF BRAZIL – SECOND MEETING
28 June 2002
1. In its answers to the Panel’s second set of questions Brazil has made a number of false
assertions and allegations.  On most of these points the true picture has already been stated in the EC’s
submissions.  However, on some of them it is necessary for the EC to make a further response.
Questions 6 and 28
2. Brazil seems to imply that the terms of reference of the Panel limit the defences and
arguments that the EC may raise.  There is of course no legal basis for such a contention.  The only
effective limitation is the criterion of relevance.
3. The EC raised the topic of revi ews for two purposes.  The first of these was to show that Tupy
lacked confidence in its own claim regarding the consequences of devaluation on its dumping margin.
Both the review that the EC offered in August  2001, and the one that it actually initiated in
December 2001, were primarily intended to deal with the consequences of the legal interpretations of
the Appellate Body in the Bedlinen  case as regards dumping, notably as regards zeroing, a
methodology which had been applied to Tupy’s exports.  However, in addition, each review would be
based on a new investigation period (1 January 2001 to 30 September 2001 for the review initiated in
December 2001)1 and would have calculated Tupy’s dumping margin over a period following the
devaluation.  Therefore, according to Tupy, no ma rgin of dumping would have been found to exist.
Despite this fact Tupy chose not to participate in the reviews. Tupy’s explanation is that it wanted a
full review.  However, it did not itself request such a review when the one-year delay was over, and in
any case a negative finding on dumping would have been sufficient in itself to terminate the duty.
Brazil’s attempts to create confusion regarding the purposes of the review2 do not conceal the
inconsistency between Tupy’s arguments and its behaviour.
4. The EC’s second reason for mentioning reviews was to argue3 that the Panel should not issue
a recommendation on certain matters even if it were to find inconsistency with WTO obligations.
Question 22
The companies whose audited accounts were confidential were Atusa and R. Woeste.
                                                     
1 See Notice of Initiation of Review, 5 Dec. 2001, (Exhibit EC-26).
2 Brazil Answers to Panel’s Second Questions, question 28.
3 EC Second Oral Statement, para. 167.WT/DS219/R
Page E-153
Question 23
Brazil develops a new argument to the effect that, because of outsourcing, the domestic
industry (or major parts of it) was shielded from direct competition with imports.  The nature of this
shielding is not explained.  Even if outsourced impor ts had been sufficient to constitute a significant
cause of injury (as was not the case) the various products in the market would have remained in
competition with one another.  In any event, because of the burden of proof established by Article 3.5
of the Agreement, any such causal explanation would be relevant only if it had been presented by
Tupy in the course of the proceedings.
__________