RESTRICTEDWORLD TRADE
ORGANIZATIONG/ADP/Q1/TUR/5
G/SCM/Q1/TUR/5
10 January 2001
(01-0097)
Committee on Anti-Dumping Practices
Committee on Subsidies and Countervailing MeasuresOriginal:  English
NOTIFICATION OF LAWS AND REGULATIONS UNDER
ARTICLES 18.5 AND 32.6 OF THE AGREEMENTS
Replies to Questions Posed by JAPAN1, the UNITED STATES2, and BRAZIL3
Regarding the Notification of TURKEY4
The following communication, dated 5 January 2001, has been received from the Permanent
Mission of Turkey.
_______________
QUESTIONS FROM JAPAN
Q. It is our understanding that the anti-circumv ention rule is included in Turkey's act and
regulation (for example, Decree on the Prevention  of Unfair Competition in Imports Article 11).
However, the WTO Anti-Dumping (AD) Agreement has no provision regarding anti-
circumvention measures.  How could Turkey justify the provision under the AD Agreement?
Reply
Despite the fact that the Uruguay Round did not result in agreement on a uniform set of rules
regarding anti-circumvention, a Ministerial Decision was taken recognizing circumvention as a
problem.  As there is no rule to the contrary regarding the matter, Turkey has included anti-
circumvention provisions in its Law to prevent ci rcumvention of anti-dumping measures, like some
other WTO Members.
Although national legislation includes provisions regarding the prevention of circumvention,
no anti-circumvention practice has taken place to date.
QUESTIONS FROM THE UNITED STATES
Q1. Turkey’s notification includes three docume nts: (1) Law No. 3577 on the Prevention of
Unfair Competition in Imports (“Unfair Compet ition Law”); (2) Decree on the Prevention of
Unfair Competition in Imports (“Unfair Competition Decree”); and (3) Regulation on the
Prevention of Unfair Competition in Imports (“Unfair Competition Regulation”).  Please
describe the relative status of the Unfair Co mpetition Law, Unfair Competition Decree, and
Unfair Competition Regulation under the Turkish legal system?  Are the Unfair Competition
Law, Unfair Competition Decree, and Unfair Competition Regulation all binding upon the
                                                     
1 G/ADP/Q1/TUR/2-G/SCM/Q1/TUR/2
2 G/ADP/Q1/TUR/3-G/SCM/Q1/TUR/3
3 G/ADP/Q1/TUR/4-G/SCM/Q1/TUR/4
4 G/ADP/N/1/TUR/3-G/SCM/N/1/TUR/3G/ADP/Q1/TUR/5
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Turkish anti-dumping and countervailing duty auth orities?  In the event of a conflict, which
document(s) prevail(s)?
Reply
According to the Turkish Constitution, all provisi ons in the laws passed by the Turkish Grand
National Assembly (the Parliament) have to be in conformity with the Constitution.  In case there is a
conflict between the provision of a law and the Constitution, there are two main mechanisms under
which the constitutionality of the law may be challenged before the Constitutional Court.
(a) Certain individuals (e.g. the President of the Republic) and members of the
Parliament are permitted to take the law to the Constitutional Court and have it
repealed by the Court;
(b) If a person, party to a case before any court, claims that the provision of the law
applicable to the case violates the Constitution, then he/she may request the court tosuspend the case and send his/her claim to the Constitutional Court for the final
decision on the constitutionality of the law.
Similarly, under Turkish law, no legal instrument can include provisions that contradict with
the provisions of another legal instrument that is s uperior to the former in the hierarchy of legal rules.
Therefore, all provisions of the Regulation must be in conformity with those of the Decree and the
Law.  The same applies to the Decree as well.
The Law, Decree and the Regulation on the Prevention of Unfair Competition in Imports
make up a set of Legislation that governs the anti-dumping and countervailing duty proceedings in
Turkey.  They are all binding upon the Turkish dumping authorities because all three are necessary
parts of the Legislation in this field.  Without one, the Legislation would not be complete and
applicable.
In case there is a conflict between these three pieces of legislation, the provision of the one
that is superior will be applicable.  Therefore, the provisions of the law will prevail over the other two
and those of the Decree over the Regulation.
Q2. Article 15 of Law 3577, as amended, states that the “provisions of the Agreement on
Implementation of Article VI of GATT 1994 and Agreement on Subsidies and Countervailing
Measures shall be followed in cases where this Law does not contain any relevant provision.”
(a) For those provisions contained in Article VI of GATT 1994, but not expressed in
the Law, Decree, or Regulation, please clarify under what legal authority
Turkey will fulfil its obligations.
(b) As an example, neither the Law, Decree, nor Regulation provide for judicial
review, as required under Article 13 of the AD Agreement and Article 23 of the
SCM Agreement.  Please clarify how Turkey will satisfy the requirements set
forth in these provisions of the Agreements.
Reply
(a) Under Turkish Constitution (Article 90), all international agreements duly entered
into force, have the effect of law and they cannot be challenged before the
Constitutional Court on constitutional grounds.  The WTO Agreement and theG/ADP/Q1/TUR/5
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Agreements annexed thereto have been approved by the parliament and gained the
status of law.  What that means is that both the provisions of GATT 1994 and the
Anti-Dumping Agreement have the status of law in Turkey.  Therefore the provisions
of Article VI of GATT 1994 are also applicable.
In addition to what has been said, Turkey is of the opinion that the reference made in Article 1
of the Anti-Dumping Agreement to Article VI of GATT 1994 makes the latter an integral part of the
former.  Therefore, by virtue of this reference it has been confirmed once again that Article VI of
GATT 1994 is also binding for Turkish authorities.
(b) According to Article 125 of the Turkish Constitution, all acts and actions of the
governmental institutions are subject to judicial review.  In light of this general rule,
the procedural details of the judicial review have been laid down in the Code of
Administrative Judicial Procedure.  Under Article 24 of the Law of Council of State,
judicial review of communiqués applicable on a nation-wide basis shall be performed
by the Council of State as the court of first instance, which is the highestadministrative court in the country.
For the reasons stated above, there was no need to include special provisions in Law
No. 3577, with respect to judicial review.  A contra ry course of action would disturb the integrity of
national administrative law.
Q3. Addendum 1 to the Unfair Competition Law provides several grounds for termination
of an anti-dumping or countervailing duty investigation by the Board of Evaluation of Unfair
Competition in Imports.  One such ground is “where the complaint has become futile”.  Can
Turkey explain the meaning of this provision?
Reply
Following the initiation of an investigation, circumstances may arise that make the
continuation of the investigation legally or factually futile.  Although it is not possible to give an
exhaustive list of such circumstances, a complaint ma y be considered as futile in cases where, during
the course of the investigation, the applicant fails to  cooperate with the anti-dumping authorities or the
reason for complaint disappears.
In fact, this issue is included in Article 29 of the Regulation regarding termination and
suspension of investigation.
Q4. The first paragraph of Article 6 of the Unfair Competition Decree, concerning
imposition of retroactive duties in anti-dumping investigations, states that retroactive duties are
to be imposed only when, among other things, “the remedial effects of the definitive measure to
be applied are undermined by reason of dumped imports realized in a relatively short period of
time and at a quantity likely to cause injury.”
(a) Is this provision consistent with the requirement in Article 10.6(ii) of the AD
Agreement that the injury must be one that is likely to seriously  undermine the
remedial effect of the order?
(b) Is this provision consistent with the requirement in Article 10.6(ii) of the AD
Agreement that the injury must be one caused by “massive dumped imports”?G/ADP/Q1/TUR/5
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Reply
Article 6 of the Decree is consistent with Article 10.6(ii) of the Anti-Dumping Agreement.
The amount of the imports made in a relatively short period of time has to be naturally "massive" toundermine the remedial effects of the definitive measure and to cause injury.  By the same token, the
said provision of the Decree prescribes the condition for the imposition of retroactive measures as
dumped imports "undermining the remedial" effect of the definitive measure.  This amounts to the
same condition as it is stated in the Agreement.
To date, no A-D measure has been applied retroactively.  But we can clearly state that our
practices will be consistent with Article 10.6(ii) of the A-D Agreement.  In our opinion, the remedial
effects of the definitive measure to be applied shall be "seriously" undermined by reason of dumped
imports realized in a relatively short period of time and at a "massive" quantity as to cause injury.
Q5. Does Turkey permit analysis of material injury on a regional industry basis, as
authorized by Article 4.1(ii) of the AD Ag reement and Article 16.2 of the SCM Agreement?
Reply
Although in our legislation there is no provisio n specifically designed for the analysis of
material injury on a regional industry basis, by invoking Article 15 of the Law, Turkish legislationpermits analysis in this nature as authorized by the relevant provisions of the A-D and SCM
Agreements.
This is a good example of Article 15 of the Law, mentioned in Question 2, allowing for the
application of the A-D Agreement's provisions in cases where there is no specific provision in thedomestic legislation.
To date, we have not initiated any investigation nor applied a measure on a regional industry
basis.
Q6. Article 25 of the Unfair Competition Regulation states that its provisions requiring
information to be furnished to interested party representatives “shall only be applicable for the
documents to be provided by th e parties to the investigation”.
(a) In their investigations, do the Turkish anti-dumping and countervailing duty
authorities generate factual information on their own, or do they rely exclusively
on information provided to them by parties to the investigation?
(b) If the Turkish anti-dumping and countervailing duty authorities generate
factual information on their own, how is the limitation in Article 25 on what
information shall be furnished to interested parties consistent with the
requirements of Articles 6.4 and 6.9 of the AD Agreement and Articles 12.3 and12.8 of the SCM Agreement?
Reply
(a) Turkish authorities do not just rely exclusively on the information submitted by the
parties to the investigation.  In order to examine the accuracy and adequacy of the
information presented by the parties to the investigation, where it is deemed
necessary, Turkish authorities may gather information from other sources.G/ADP/Q1/TUR/5
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(b) As it is stated in Article 25 of the Regulation on the Prevention of Unfair Competition
in Imports, upon a written request, interested parties shall be given opportunity to
examine all non-confidential information that is relevant to the presentation of their
cases.  Therefore, all information submitted by the parties or gathered by theinvestigating authorities from other sources is furnished to interested parties provided
that this information is not confidential.
Q7. Does Turkey offer interested parties access to confidential information pursuant to the
type of protective orders discussed in footnote 17 to Article 6.5 of the AD Agreement and
footnote 42 to Article 12.4 of the SCM Agreement?
Reply
Turkish law does not have any provision relating to "protective orders" discussed in footnotes
to Article 6.5 of the Anti-Dumping Agreement and Article 12.4 of the SCM Agreement.
On the issue of access to confidential information by interested parties, what we do is to
follow the provisions of the Agreements.  In addition, when a national court handles an administrative
case concerning the imposition of anti-dumping duties or countervailing measures, the anti-dumping
authority is obliged to hand the documents to the court for review, and the authorities have to abide by
the court's order.
Q8. Article 25 of the Regulation permits parties to  the proceeding only to have access to non-
confidential documents, and expressly prohibits parties from obtaining or examining documents
“prepared by the Directorate General for internal  purposes”.  Please clarify the meaning of the
term “for internal purposes” and explain the general parameters of the prohibition against
access to such information.  In particular, pl ease clarify whether the prohibition would include
any document generated by the Directorate General in conducting any relevant investigation or
review under Article VI of the GATT 1994.
Reply
Article 5 of the Law on the Prevention of Unfair Competition in Imports lists the duties of the
Directorate General which is the investigating authority.  According to this provision, the Directorate
General is responsible for carrying out the preliminary examination, submitting its proposal to the
Board of Evaluation of Unfair Competition in Imports  on whether or not to initiate an investigation,
conducting such investigation, making proposals to the Board concerning the measures and acting as
the secretariat of the Board.
In order to perform its duties, the Directorate General prepares documents to be only used for
internal purposes.  Documents prepared by the Directorate General and submitted to the Board so that
it makes its decision on the case are called "internal documents".
Q9. Article 31 of the Unfair Competition Regulation states that notices to initiate anti-
dumping or countervailing duty investigations and to undertake provisional or definitive
measures will “contain information on the pr oduct concerned, exporting country, the country of
export or origin, and due regard being paid to the confidentiality, findings and determinations
reached in the investigation.”
(a) Does this mean that the Turkish authorities issue some “findings” or
“determinations” in addition to what is published in the notice?  If so, are there
any requirements as to the contents of such findings or determinations?G/ADP/Q1/TUR/5
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(b) With respect to initiation notices, how does Article 31 satisfy the requirements of
paragraphs (iii) and (iv) of Article 12.1.1 of the AD Agreement and
paragraphs (iii) and (iv) of Article 22.2 of the SCM Agreement?
(c) With respect to notices of imposition of provisional duties, how does Article 31
satisfy the requirements of Article 12.2.1 of the AD Agreement and Article 22.4
of the SCM Agreement, particularly with  respect to the requirement that the
notice contains “sufficiently detailed explanation for the preliminary
determinations on the existence of [subsidy or dumping] and injury?”
(d) With respect to notices of imposition of definitive measures, how does Article 31
satisfy the requirements of Article 12.2.2 of the AD Agreement and Article 22.5
of the SCM Agreement, particularly with  respect to the requirement that the
notice contain “all relevant information on the matters of fact and law and
reasons which have led to the impositions  of final measures” and the reasons for
the acceptance or rejection of relevant arguments or claims made by the
exporters and importers?
Reply
We would like to answer question number nine as a whole.  Article 31 is another good
example of Article 15 of Law 3577, which states that the "provisions of the Agreement on
Implementation of Article VI of GATT 1994 and the Agreement on Subsidies and Countervailing
Measures shall be followed in cases where this Law does not contain any relevant provision".
Turkey pays attention to abide by the requirements of the cited agreements.  In practice,
therefore, information required by Article 12 of the A-D Agreement is given in all public notices.
Q10. Please clarify what procedures Turkey contemplates to satisfy its obligation under
Article 6.1.3 of the Agreement to provide “the full text of the written application” to the known
exporters.
Reply
The provision of the full text of the written application to the known exporters is explained
under Article 25 of the Regulation.  Article 25 states that:
"As soon as an investigation is initiated, a non-confidential copy of the complaint
shall be sent to the known exporters and to the authorities of the exporting country
…".
Q11. Please clarify how normal value under Article 2e(2) of Law No. 3577, as amended by
Law No. 4412, will be calculated.  Article 2e(2) states that “[w]hen there are no sales of the likeproduct in the domestic market . . or where su ch sales do not permit a proper comparison,
normal value shall be ... the price calculated on the basis of cost of production ... plus a
reasonable amount for profit”.  By contrast, Article 2.2 of the Agreement also requires the
addition of a “reasonable amount for administrative, selling, and general costs”.  While the
requirement to include an amount for administrative, selling, and general costs is contained inthe Regulation at Article 19(c), it is not contained in the Law,
 or the Decree.  Moreover, the
Regulation elsewhere refers only to profit, but not to administrative, selling, and general costs.G/ADP/Q1/TUR/5
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See the Regulation at Article 5.  Please clarify whether, in situations addressed by Article 2e(2),
Turkey will include an amount for admi nistrative, selling, and general costs.
Reply
Constructed normal value under Article 2 of the Law is defined as the price calculated on the
basis of cost, plus a reasonable amount of profit.  The term "cost" as used broadly in this Article refers
to the cost of production which consists of cost of manufacturing plus selling, general and
administrative costs.
Therefore, even though the wording in the legislation is different from that of Article 2.2 of
the A-D Agreement there is no contradiction or deviation from the Agreement.  In the same manner,
the statement in Article 19(c) of the Regulation has no difference in either wording or meaning from
those in other Articles.  In this context, Article 2(e)2 of the Law should be read as "… on the basis of
the cost of manufacturing plus selling, general and administrative expenses in the country of origin
plus a reasonable amount for profit".
Q12. Please clarify whether Turkey’s law provides for a determination of an individual
margin of dumping for each known exporter or producer as provided under Article 6.10 of the
A-D Agreement.
Reply
Turkish legislation does provide for a determination of an individual margin of dumping for
each known exporter or producer.  This provision is embodied in Article 5 of the Decree on the
Prevention of Unfair Competition in Imports.  The said Article stipulates that the amount or rate of thesecurity deposit or the duty to be imposed shall be specified by naming the exporters and country of
origin or export of the product concerned.  In order to meet the requirement of this provision, an
individual margin of dumping is calculated for each known exporter or producer.
Q13. Please clarify whether, in determining normal value, Article 5 of the Regulation
establishes a preference for a price based upon cost of production ( i.e., constructed value) over a
price based upon sales to third-country markets.
Reply
Article 5 of the Regulation does not establish any preference or priority for a price based upon
cost of production (i.e. constructed value) over a price based upon sales to third-country markets.
There is not a fixed methodology regarding the issue.  Thus, Article 5 of the Regulation is a reflection
of Article 2.2 of the A-D Agreement and therefore no specific preference or priority is attached to any
of the methods.
Q14. Please clarify under what circumstances the Directorate General would initiate an
examination ex officio  under Article 4 of Law No. 3577 and Article 20 of the Regulation.
Reply
So far we have not initiated an investigation ex officio .  But in the case of fragmented
industries involving an exceptionally large number of producers, we may determine to initiate an
investigation without having received a written ap plication by or on behalf of a domestic industry.
Conforming with Article 5.6 of the A-D Agreement, such an investigation would be initiated only ifG/ADP/Q1/TUR/5
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sufficient evidence of dumping, injury and a causal li nk to justify the initiation of the investigation
exist.
Q15. Please clarify the term “registration” as referenced in Article 11 of the Decree
concerning the prevention of circumvention.
Reply
"Registration", referred to in Article 11 of the Decree, is a formality which does not impose
any restriction or liability on the imports subject to  investigation.  Under this mechanism imports are
merely recorded.  This formality is considered to  be necessary in order to be able to impose and
collect duties on a retroactive basis to the date of registration, should circumvention be found.
QUESTIONS FROM BRAZIL
Q1. Article 1 of the Agreement on Subsidies and Countervailing Measures defines a subsidy
as follows:
“ 1.1. For the purpose of this Agreement, a subsidy shall be deemed to exist if:
(a) (1) there is a financial contribution by a government or any public body
within the territory of a Member (referred to in this Agreement as
“government”), i.e., where: (...);
or
(a) (2)  there is any form of income or price support in the sense of Article XVI
of GATT 1994;
and
(b) a benefit is thereby conferred..”
But the definition of subsidies in the Turkish legislation (Article 2(b) of Law 3577;
Article 2(b) of the Decree on the Prevention of Unfair Competition in Imports; and Articles 4(b)
and 12 of the Regulation on the Prevention of Unfair Competition in Imports) links the
conferral of a benefit only to the financial contributions by the government: “ Subsidy: A direct
or indirect financial contribution by the country of origin or export, which confers a benefit or any
form of income or price support within the meaning of Article XVI of GATT.”
Could Turkey clarify the reason why, in its legislation, “any form of income or price
support in the sense of Article XVI of GATT 1994” would be considered a subsidy without a
benefit being thereby conferred?
Reply
The verbatim translation of the subsidy definiti on in the original Turkish version is "A direct
or indirect financial contribution by the country of origin or export, or any form of income or pricesupport within the meaning of Article XVI of GATT 1994, which confers a benefit".  Therefore, the
mentioned definition is in full conformity with Article 1.1 of the Agreement on Subsidies and
Countervailing Measures.G/ADP/Q1/TUR/5
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Q2. Article 2.2 of the Anti-Dumping Agreement es tablishes conditions in which sales in the
domestic market does not permit a proper comparison, such as:
“2.2.  (...) when, because of the particular market  situation or the low volume of the sales in
the domestic market of the exporting country2, such sales do not permit a proper
comparison, ...”
_______________
2 Sales of the like product destined for consumption in the domestic market of the
exporting country shall normally be considered  a sufficient quantity for the determination
of the normal value if such sales constitute 5 per cent or more of the sales of the productunder consideration to the importing Member, provided that a lower ratio should be
acceptable where the evidence demonstrates that domestic sales at such lower ratio are
nonetheless of sufficient magnitude to provide for a proper comparison.”
The Turkish legislation does not mention which conditions would not permit a proper
comparison; it simply establishes that:
“(e) Normal Value:
(2) When there are no sales of the like product in the domestic market of the country of
origin or export in the ordinary course of trade, or where such sales do no permit a proper
comparison, the normal value shall be the expo rt price of the like product when exported to
an (...)” (Art. 2(e)(2) of Law 3577; Art. 2(e)(2) of the Decree; and Art. 4 (e)(2) of the
Regulation).
Could Turkey explain which are the criteria used to determine when would the domestic
market sales of the exporting country in the ordinary course of trade not permit a proper
comparison?
Reply
The Turkish Legislation on the Prevention of Unfair Competition in Imports consists of three
legislative instruments, namely the Law, the Decree and the Regulation.  Therefore, when looking for
a provision on a particular issue, one should go through all the three instruments.  They are all binding
and make up the whole Legislation.  Having made this general explanation about the structure of the
Legislation, the answer to the question posed by Brazil can be found in a detailed manner in Article 5
of the Regulation.
Q3. In the Turkish legislation – Article 2(g) of Law 3577, Article 2(g) of the Decree and
Article 4(g) of the Regulation - the amount of the subsidy is defined as follows:
“(g) Amount of Subsidy: Direct or indirect  financial contribution maintained by the
country of origin or export for manufacture, production, export or transportation of the
product sold for export, or total amount of be nefits in any form of income or price support
in the sense of Article XVI of GATT 1994 ”
But Article 13 of the Regulation (Calculation of the amount of the countervailable
subsidy) establishes that:
“The amount of countervailable subsidies shall be calculated in terms of the benefit
conferred on the recipient during the investigation period.  (...)”G/ADP/Q1/TUR/5
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Despite this proviso, we notice in the Turkish legislation several references to the
amount of the subsidy instead of the amount of  countervailable subsidy: in Articles 7 (Anti-
dumping duty and countervailing duty), 12 (Provisional Measures), and 13 (Definitivemeasures) of Law 3577; Articles 4 (Circumstances warranting imposition of measures and
measures) and 10 (Refund of excessive duties) of the Decree; and Articles 28 ( Negligible Rates)
and 29 (Termination and suspension of investigation).
Could Turkey explain which is the relation between the two forms presented in its
legislation (amount of subsidy, and amount of countervailable subsidy)? For example, Article 28
of the Regulation, where there are references to negligible quantities in the amount of the
subsidy.  Could Turkey clarify if this calculation method to determine the amount of
countervailable subsidies is the same as the one used to determine the amount of the subsidy
referred in this Article?  If that is not the case, which is the methodology adopted to determine
the amount of the subsidy?
Reply
Firstly, the definition of "amount of subsidy" is given under Article 2(h) of the Law, but not
under Article 2(g) as it is expressed in the question posed by Brazil.
The second paragraph of Article 3 of the Law imports the notion of specificity set out in
Article 2 of the SCM Agreement, while the second paragraph of Article 12 of the Regulation refers to
the definition of the three categories of subsidies defined in parts 2, 3 and 4 of the Agreement.
Together with the general reference made to the Agreement in the third paragraph of Article 15 of the
Law, the above-mentioned Articles of the Law and the Regulation preclude the Turkish authoritiesfrom taking action against subsidized imports unless the Agreement so authorizes.  With the same
understanding, as far as countervailing measures investigations are concerned, any reference made in
the Legislation to the term "subsidy" refers to "countervailable" subsidies.
With respect to the particular question rega rding negligible amount of subsidy, the term
"subsidy" shall be understood as "negligible amount of countervailable subsidy".
Q4. Article 2(i) of the Decree on the Prevention of Unfair Competition in Imports, as well as
Article 4(i) of its Regulation, have a definition of "Circumvention":
“(i) Circumvention:
(1) Cases where there is evidence that, a change in the pattern of trade between
a third country and Turkey, stemming from a practice, process or work for
which there is insufficient due cause or economic justification other than to
avoid the anti-dumping duty or coun tervailing duty, existed and that the
remedial effects of the duty are being undermined or nullified in terms ofthe prices and/or quantities of th e like products and there is evidence of
dumping or continuance of subsidy in relation to the normal values
previously established for the like products;
(2) Cases where, there is evidence that, due to the lowering or export prices,
the expected effects of the anti-dumping duty on selling prices of theimported products subject to measures in the Turkish market are being
undermined or nullified and thus the remedial effects of the duty in terms
of removal of injury to the domestic industry are being weakened”G/ADP/Q1/TUR/5
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Article 11 of the Decree establishes that:
“Anti-dumping duties and countervailing duties  imposed may be extended as to cover like
products or parts thereof and imports of such  product form third countries, where it is
determined as a result of the investigation initiated that effects of definitive duties are being
nullified consequent to a practice or work for which there is insufficient due cause or
economic justification other than to avoid the anti-dumping duty or countervailing duty in
force. Imports of the product subject to inves tigation may be made subject to registration
during the investigations to be carried out under this paragraph.
Where, as a result of the investigation , it is determined that the definitive duties were
nullified due to the lowering of the export pric es, the anti-dumping duty shall be reassessed
in accordance with the new dumping margin calculated.  When investigations to be carried
out under this paragraph, cover the re-examination of normal value, the imports of the
product subject to investigation may be m ade subject to registration during the
investigation.
Where imports of the product concerned have been subject to registration and, consequent
to the investigation it is decided to impose measures, such measures shall be applied from
the date of registration.”
The procedures and principles as regards the process and investigations to be carried out
for the prevention of circumvention sh all be set out in the regulation.”
In Section III of the Regulation, "Other investigations", mention is made only to
procedures of the investigation that are rela ted to cases in which there is price reduction
(Articles 38 and 39).
With respect to the adopted definition as well as to the procedures outlined in its
regulation, could Turkey clarify the following aspects?
/g216 With regard to item (1) of the definition of  “circumvention”, does the expression "third
country" refer to countries other than those whose exports to Turkey were investigated?
Reply
By definition of circumvention, the answer is yes.
/g216 If so, does the Turkish legislation permit the extension of anti-dumping or
countervailing duties applied on imports of one country to imports from another
country, without an antidumping/countervailing duties investigation being conducted
for these imports?  Or does the investigation mentioned in Article 11 of the Decree refer
to a new anti-dumping/countervailing duties investigation covering imports from a thirdcountry?
Reply
The answer to the question is no.  The invest igation mentioned in Article 11 of the Decree
will cover only the products of the company exporting to Turkey, which have already been subjected
to anti-dumping duties in the original investigation.  Genuine exports of the so-called third country
will not be affected by the anti-circumvention investigation.G/ADP/Q1/TUR/5
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/g216 In the last hypothesis, would it be po ssible for Turkey to open an anti-
dumping/countervailing investigation relating to original imports of a third country,
even though the investigatin g authorities would have no evidence of dumping/subsidy
and injury, as required by Articles 5 of the Anti-Dumping Agreement and 11 of theSCM Agreement?
Reply
The answer is simply no.
/g216 Since the Regulation does not outline any procedure for an investigation of "anti-
circumvention" related to changes of trad e patterns with a third country, does this
mean that Turkey cannot conduct this type of investigation? If not, which is the
regulation that establishes the procedures and principles for this type of investigation?
Reply
Practices that constitute circumvention have clearly been identified in Articles 2(i) of the
Decree and 4(i) of the Regulation.  Since they are straightforward, no need has arisen that mandated
further clarification of these definitions.  On the other hand, since every act and action of the
authorities are subject to judicial review on th e national level, whether facts have been properly
established and whether their legal interpretations were accurate are issues to be decided by the
Council of State which is the highest administrative court in the country.  If the Informal Group on
Anti-Circumvention reaches a consensus on anti-circumvention, we will revise our practice, if any,
accordingly.
/g216 With regard to an “anti-circumvention” invest igation related to export price reductions
(Articles 38 and 39 of the Regulation), is it correct to assume that the normal value will
not be the same one calculated for the period  in which the export prices are reduced? To
what extent would a comparison of values from different periods (current export price
and the normal value for, at least, the previous year) allow the “fair comparison”
mentioned in Article 2.4 of the A-D Agreement?
Reply
The comparison will be done between the original normal value and the export price reduced
for the purpose of absorbing the anti-dumping duty.  However, exporters have, under Article 39 of the
Regulation, the right to request the examination of the new normal value.
/g216 Since Articles 11 of the AD Agreement and 21 of the SCM Agreement establish rules
and procedures for the revision of the du mping margin/amount of subsidy, wouldn’t an
“anti-circumvention” investigation that  ignores these rules violate the WTO
Agreements?
Reply
Under Article 7 of the Decree and Article 34 of the Regulation, for a review of an
investigation to be initiated, one year should have elapsed following the imposition of the measure.However, absorption of the anti-dumping duties will be most likely to occur within that first year.
Therefore, the ordinary review procedure cannot substitute the anti-circumvention investigations
stemming from the absorption of the duties.G/ADP/Q1/TUR/5
G/SCM/Q1/TUR/5
Page 13
Q5. Article 6.10 of the Anti-Dumping Agreement allows for sampling of
exporters/producers/importers or the types of products involved.  In addition, Article 6.10.1
determines that:
“Any selection of exporters, producers, importers or types of products made under
this paragraph shall preferably be chosen in consultation with and with the consent
of the exporters, producers or importers concerned”.
Article 27 of the Regulation goes further than AD Article 6.10 by allowing samplings of
transactions that are statistically valid.  Bu t in contrast with Article 6.10.1, the Turkish
legislation does not require that the selection of the sample be preceded by consultations with or
the consent of the exporters, producers or impo rters concerned.  How does Turkey explain this
omission?
Also in connection to Article 27 of the Regulation, could Turkey clarify the following?
/g216 Bearing in mind that the Regulation determin es that the dumping margin may be based
on a sample that is statistically valid, would it be possible for the Turkish investigating
authorities to calculate the dumping margin based on only part of the export
transactions?
/g216 If the answer is affirmative, could Turkey identify which Articles of the Anti-Dumping
Agreement would lend support for such a procedure (a partial analysis of the exports
under investigation)?
/g216 If one assumes that a sample of transactions  is permissible, why doesn’t the legislation
envisage the possibility of consultations with producers, exporters, or importers, for the
selection of the sample, as was done in the case of samples of exporters, producers,
importers or types of product?
Reply
To date, Turkey has limited its examinations only to the largest percentage of the volume of
the exports on the basis of product types or exporters from the country in question which can
reasonably be investigated in accordance with the final method described in Article 6.10 of the A-D
Agreement.  Sampling of transactions can be necessary in cases where the number of transactions
under examination is so large that it may become bur densome for both the investigating authority and
the interested party concerned in respect of verifi cation and examination.  This might be the case for
domestic sales, which are generally more extensive than export sales.
There is no explicit reference to sampling of transactions in the Agreement.  But as long as
sampling is made in an unbiased manner and of course in consultation with the exporter, there will be
no inconsistency with the Agreement.
Again, regarding the question about the consultations with producers, exporters or importers:
whenever a sampling exercise is deemed appropriate, whatever methodology is employed, it will be
executed in consultation with the related parties.G/ADP/Q1/TUR/5
G/SCM/Q1/TUR/5
Page 14
Q6. With regard to Public Notices Regarding th e Investigation, Article 31 of the Regulation
establishes that:
“(...) All such notices shall be forwarde d to the countries concerned and to all
known producers and exporters of the product “.
Bearing in mind the language of Articles 12 of the Anti-Dumping Agreement and 22 of
the SCM Agreement, as well as the definition of all interested parties contained in Article 23 of
the Regulation, could Turkey explain why Arti cle 31 does not require notification to the
importers of the product that is under investigation?
Reply
Article 12 of the A-D Agreement and Article 22 of the SCM Agreement require the
investigating authorities to forward the public notices to the relevant Members and the other known
interested parties.
Article 31 of the Turkish Regulation states in its relevant part that "All such notices shall be
forwarded to the countries concerned and to all known producers and exporters of the product
concerned".  The public notices are published in the Turkish Official Gazette which any person can
access easily.  We also post our communiqués on our web site and update them.
It is the understanding of Turkey that, in the light of Article 6.11 of the A-D Agreement and
Article 12.9 of the SCM Agreement both of which define the term "interested parties", the said Article
of the regulation is in full conformity with the Agreements.  That is because the mentioned Articles of
the Agreements do not mandate the investigating authorities to forward the public notices to theimporters.
However, if the other Members stick to the contra ry interpretation of the said Articles, we will
also reconsider our practice accordingly.
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