WORLD TRADE
ORGANIZATIONWT/DS136/1
G/L/247
G/ADP/D11/1
24 June 1998
(98-2536)
Original:  English
UNITED STATES –ANTI-DUMPING ACT OF 1916
Request for Consultations from the European Communities
The following communication, dated 4 June 1998, from the Permanent Delegation of the
European Commission to the Permanent Mission of the United States and the Dispute Settlement
Body, is circulated in accordance with Article 4.4 of the DSU.
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On behalf of the European Communities, I hereby request consultations with the United
States of America pursuant to Article 4 of the Understanding on Rules and Procedures Governing the
Settlement of Disputes, Article XXIII of the General Agreement on Tariffs and Trade 1994 (GATT
1994) and Article 17.3 of the Agreement on Implementa tion of Article VI of the General Agreement
on Tariffs and Trade 1994 (Anti-Dumping Agreement) regarding failure from the part of the United
States to repeal its Anti-Dumping Act of 1916 (Act  of 8 September 1916, 39 St at. 756.   Title VIII of
that Act is codified at United States Code 71-74).
The US Anti-Dumping Act of 1916 is still in force and is applicable to the import and internal
sale of any foreign product irrespective of its origin, including products originating in countries which
are WTO Members.  The 1916 Act exists in the US statute books in parallel with the Tariff Act of
1930 which includes the US implementing legislation of multilateral Anti-Dumping provisions.  A
Court action brought under the 1916 Act is at present pending before US Courts and there aresubstantiated indications that further Court actions under the 1916 Act could be brought in the near
future.  It should be noted that US producers of any product could decide to resort to the 1916 Act.
The 1916 Act renders unlawful the importation of goods and their sale in the US market in
certain circumstances when the price is lower than the one in the country of production or in otherforeign countries where the goods are exported.  It therefore relates to a practice which corresponds to
that described in Article VI of GATT 1994 and in the Anti-Dumping Agreement.
The European Communities consider that the 1916 Act is, in several respects, not in
conformity with the obligations contained in Article VI of GATT 1994 and the Anti-DumpingAgreement.  Infringements relate, notably, to the following provisions:
- Article VI:2 of GATT 1994 specify that anti-dumping duties are the only possible remedy to
dumping whereas the 1916 Act is having recourse to treble damages and fines and/or
imprisonment;
./.WT/DS136/1, G/L/247
G/ADP/D11/1
Page 2
- Article 1 of the WTO Anti-Dumping Agreement requiring the carrying-out of an investigation
(which has to respect a set of procedural rules) prior to the imposition of any duty whereas
under the 1916 Act measures are applied immediately without the procedural safeguards
provided for in the Anti-Dumping Agreement;
- Article VI of GATT 1994 and Articles 4 and 5 of the WTO Anti-Dumping Agreement insofar
as they require that the complaining domestic industry satisfies certain requirements before
being permitted to bring an anti-dumping complaint whereas an action under the 1916 Act
can be brought by any private party;
- Article VI of GATT 1994 and Article 3 of the WTO Anti-Dumping Agreement insofar as
they specifically define and qualify the concept of 'material injury' whereas the 1916 Act
merely refers to an intent  to injure;
- Article VI:1(a) and (b) of GATT 1994 and Articles 2.1 and 2.2 of the WTO Anti-Dumping
Agreement insofar as they set the actual pric e in the exporting country as the first and
privileged criterion for the calculation of the normal value whereas the criteria mentioned in
the 1916 Act are fully interchangeable;
- Article VI:1 of GATT 1994 and Article 2.1 of the WTO Anti-Dumping Agreement insofar as
they require the introduction of products into the commerce of another country as aprerequisite for dumping to take place whereas under the 1916 Act actual sales on the US
market are not necessary and a simple quotation from a foreign company is considered to be
sufficient.
In addition, the European Communities consider  that the 1916 Act, insofar as it leads to
applying stricter disciplines to the sale of imported products at low prices than for the sale of domestic
products is also contrary to Article III:4 of GATT 1994.
In these circumstances, the European Communities consider that the US Anti-Dumping Act
of 1916 is not in conformity with the obligation of the United States under Article XVI:4 of the
Marrakesh Agreement establishing the WTO, which requires all Members to " ensure the conformity
of (their) laws, regulations and administrative procedures with (their) obligations as provided in theannexed Agreements".
The European Communities look forward to receiv ing your reply to this request and to fixing
a mutually acceptable date for consultations.
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