WT/DS494/R  
 
24 July 2020  
(20-5106) Page: 1/175 
    
 
  
EUROPEAN  UNION — COST ADJUSTMENT METHODOLOGIES  
AND CERTAIN ANTI -DUMPING MEASURES ON IMPORTS  
FROM RUSSIA  (SECOND COMPLAINT)  
 
REPORT OF THE PANEL  
 
 
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 WT/DS494/R  
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  TABLE OF CONTENTS  
 
1   INTRODUCTION  ................................ ................................ ................................ ........  16 
1.1   Complaint by the Russian Federation  ................................ ................................ ............ 16 
1.2   Panel establishment and composition  ................................ ................................ ............ 16 
1.3   Panel proceedings  ................................ ................................ ................................ .......16 
 General  ................................ ................................ ................................ .................. 16 
 Additional Working Procedures concerning Business Confidential Information  .................. 17 
 European Union's request for a preliminary ruling  ................................ ........................ 17 
2   FACTUAL ASPECTS ................................ ................................ ................................ ..... 17 
2.1   The measures at issue  ................................ ................................ ................................ 17 
3   PARTIES' REQUESTS FOR FINDINGS AND RECOMMENDATIONS  ................................  17 
4   ARGUMENTS OF THE PARTIES  ................................ ................................ ...................  21 
5   ARGUMENTS OF THE THIRD PARTIES  ................................ ................................ ........  21 
6   INTERIM REVIEW  ................................ ................................ ................................ ...... 21 
7   FINDINGS  ................................ ................................ ................................ .................  21 
7.1   General principles regarding treaty interpretation, the applicable standard of review, and 
burden of proof  ................................ ................................ ................................ .................. 21 
 Treaty interpretation  ................................ ................................ ................................ 21 
 Standard of review ................................ ................................ ................................ ...21 
 Burden of proof  ................................ ................................ ................................ .......22 
7.2   Russia's claims  concerning the Cost Adjustment Methodology  ................................ .......... 22 
 Introduction  ................................ ................................ ................................ ............ 23 
 Whether Russia has demonstrated the existence of the Cost Adjustment Methodology  .....24 
 Main arguments of the parties  ................................ ................................ ................ 24 
 Legal standard  ................................ ................................ ................................ ......26 
 Evaluation by the Panel  ................................ ................................ ......................... 27 
 Russia's request concerning Regulations 2017/2321 and 2018/825  ................................ 44 
 Whether the Cost Adjustment Methodology is inconsi stent with Article  2.2.1.1 of the 
Anti-Dumping Agreement by providing for the rejection of the recorded costs  ........................... 46 
 Main arguments of the parties  ................................ ................................ ................ 46 
 Legal standard  ................................ ................................ ................................ ......48 
 Evaluation by the Panel  ................................ ................................ ......................... 49 
 Conclusion  ................................ ................................ ................................ ........... 52 
 Whether the Cost Adjustment Methodology is inconsistent with Article  2.2.1.1 of the 
Anti-Dumping Agreement by providing for the use of costs other than "the costs associated  
with the production and sale of the product under consideration"  ................................ ............. 52 
 Whether the Cost Adjustment Methodology is inconsistent with Article  2.2 of the 
Anti-Dumping Agreement by providing for the use of costs o ther than "the cost of  
production in the country of origin"  ................................ ................................ ...................... 53 
 Main arguments of the parties  ................................ ................................ ................ 53 
 Legal standard  ................................ ................................ ................................ ......55 
 Evaluation by the Panel  ................................ ................................ ......................... 55 WT/DS494/R  
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 Conclusion  ................................ ................................ ................................ ........... 57 
7.3   Russia's claim  concerning the first subparagraph of Article  2(3) 
of the Basic AD Regulation  ................................ ................................ ................................ ..58 
 Introduction  ................................ ................................ ................................ ............ 58 
 Whether the first subparagraph of Article  2(3) of the  Basic AD Regulation  requires  
that, in the construction of normal value, only "representative" prices shall be used  ................... 58 
 Text ................................ ................................ ................................ .................... 59 
 Statement by the European  Commission  ................................ ................................ ..62 
 Provisions of the Basic AD Regulation  ................................ ................................ ......63 
 Recitals of Regulation  1972/2002 and Regulation  2017/2321  ................................ .....64 
 Practice of the EU authorities in anti -dumping proceedings  ................................ ......... 65 
 General Court of the European Union judgements  ................................ ..................... 66 
 Conclusion  ................................ ................................ ................................ .............. 66 
7.4   Russia's claims  concerning the second subparagraph of Article  2(3) of the 
Basic AD Regulation  ................................ ................................ ................................ ........... 66 
 Introduction  ................................ ................................ ................................ ............ 66 
 Whether "the particular market situation" within the meaning of Article  2.2 of the 
Anti-Dumping Agreement refers exclusively to one specific situation w hich is the circumstance 
described in the second Ad Note to Article  VI:1 of the GATT 1994  ................................ ............ 67 
 Additional arguments connected t o the second Ad Note to  
Article VI:1 of the GATT  1994 ................................ ................................ .............................. 71 
 Additional arguments independent of the second Ad Note to Article VI:1 of the  
GATT 1994  ................................ ................................ ................................ ........................ 72 
 Conclusion  ................................ ................................ ................................ .............. 74 
7.5   Russia's claims  concerning the final part of the second subparagraph of Article  2(5) 
of the Basic AD Regulation  ................................ ................................ ................................ ..74 
 Introduction  ................................ ................................ ................................ ............ 74 
 Whether Article  2.2 of the Anti -Dumping Agreement requires "the cost of production  
in the country of origin" to be based on the costs of other producers  or exporters in the same 
country when the records of the investigated exporter or producer are rejected  ......................... 75 
 Whether Article  2.2.1.1 of the Anti -Dumping Agreement requires the cost  
of production to be based on the cost "associated with the production" of the product under 
consideration  when the records of the investigated exporter or producer are rejected  ................ 76 
 Whether the challenged part of the second subparagraph of Article  2(5) of the Basic AD 
Regulation  prevents the European  Commission from adapting "information from other 
representative markets" to arrive at "the cost of production in the country of origin"  
in accordance with Article  2.2 of the Anti -Dumping Agreement  ................................ ................ 77 
 Conclusion  ................................ ................................ ................................ .............. 79 
7.6   Russia's  claims  concerning the anti -dumping measures on imports of certain welded  
tubes and pipes originating in Russia  ................................ ................................ .................... 79 
 Introduc tion ................................ ................................ ................................ ............ 79 
 Russia's claims  under the first sentence of Article  2.2.1.1  ................................ ............. 79 
 Main arguments of the parties  ................................ ................................ ................ 79 
 The legal standard  ................................ ................................ ................................ 81 
 Evaluation by the Panel  ................................ ................................ ......................... 81 
 Conclusion  ................................ ................................ ................................ ........... 85 WT/DS494/R  
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 Russia's claim  under Article  2.2.1 ................................ ................................ .............. 85 
 Main arguments of the parties  ................................ ................................ ................ 85 
 Legal standard  ................................ ................................ ................................ ......86 
 Evaluation by the Panel  ................................ ................................ ......................... 86 
 Conclusion  ................................ ................................ ................................ ........... 87 
 Russia's claim  under Article  11.3 ................................ ................................ ............... 87 
7.7   Russia's claims  concerning the anti -dumping measures imposed by the European Union  
on imports of ammonium nitrate from Russia and the underlying investigations and reviews  .......89 
 Whether certain claims  presented by the Russian Federation should be rejected by the 
Panel because they concern pre -WTO de terminations  ................................ ............................. 90 
 Article  18.3 does not apply because it is a transitional provision  ................................ .91 
 Article  18.3 only regulates the entry into force of the Anti -Dumping Agreement for 
importing Members  ................................ ................................ ................................ ............ 92 
 Claims with respect to the product scope of the measures  ................................ ............ 93 
 Introduction  ................................ ................................ ................................ ......... 93 
 Whether the European  Union extended the anti -dumping measures an d levied 
anti-dumping duties on imports of stabilized AN and IGAN although no investigation was ever 
conducted and no dumping and material injury determinations were ever made (claim  #1) ........ 93 
 Whether the European  Union violated Article  11.3 by initiating the third expiry  
review on the basis of a petition which was not duly substantiated (c laim #2) ........................... 98 
 Russia's claims  with respect to the establishment of the likelihood of recurrence  
of injury (claims  #5 to #8) ................................ ................................ ................................  105 
 Introduction  ................................ ................................ ................................ ....... 105 
 Whether certain claims  presented by Russia should be disregarded by the Panel  
because Regulation  1722/2018 replaced and updated Regulation  999/2014  ............................  106 
 The relevant legal standard for the Panel's examination of Russia's claims  relating  
to the likelihood of recurrence of injury determination  ................................ ..........................  109 
 Whether the European  Union erred by failing to perform proper undercutting  
calculations (claim  #5) ................................ ................................ ................................ ..... 111 
 Whether the European  Union erred by basing its likelihood of recurrence of injury 
determination on incorrect or incomplete data (claim  #6) ................................ .....................  121 
 Whether the European  Union violated Article  11.3 of the Anti -Dumping  Agreement  
by concluding that the non -injurious situation of the domestic industry was not sustainable 
(claim  #7) ................................ ................................ ................................ ......................  127 
 Whether the European Union's findings with regard to spare capacities and demand  
in third country markets violate Article 11.3 of the Anti -Dumping Agreement (claim  #8) ..........  133 
 Claims with respect to the determination of the likelihood of recurrence of dumping 
(claims  #9 and #11)  ................................ ................................ ................................ ........  135 
 Introduction  ................................ ................................ ................................ ....... 135 
 The relevant legal standard for the Panel's examination of Russia's  
claims  #9 and  #11 ................................ ................................ ................................ ...........  137 
 Whether the determination of likelihood of recurrence of dumping in  
Regulation  999/2014 relied on a dumping margin calculation  ................................ ................  139 
 Whether the European  Union breached Article  11.3 of the Anti -Dumping  Agreement  
by failing to examine the impact of the alleged absence of dumping by t he largest Russian  
exporters (claim  #9) ................................ ................................ ................................ ........  142 WT/DS494/R  
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 Whether the European  Union violated Article  11.3 of the Anti -Dumping Agreement  by 
making the affirmative determination of likelihood of dumping on the basis of alleged  "dumping"  
to third -countries without conducting proper dumping margin calculations (claim  #11) ............  146 
 Whether the European Union erred by failing to conduct a separate expiry review  
for the imports of Kirovo (claim  #3) ................................ ................................ ...................  147 
 Whether the European Union erred by incorrectly defining the domestic industry  
and by making a likelihood of recurrence of injury determination based  on  
incomplete data (claim  #4) ................................ ................................ ...............................  149 
 Claims with respect to the continuous levying of the anti -dumping duties  
(claims  #12 to  #15) ................................ ................................ ................................ .........  151 
 Introduction  ................................ ................................ ................................ ....... 151 
 Analysis  ................................ ................................ ................................ .............  153 
 Claims with respect to the conduct of the expiry review leading up to  
Regulation  999/2014  ................................ ................................ ................................ ........  155 
 Russia's claim  concerning alleged delays in giving access to the non -confidential file 
(claim  #16) ................................ ................................ ................................ .....................  155 
 Russia's claim  that the European  Union failed to provide to the interested  
parties the full text of the application received on 28 March 2013 (claim  #17) .........................  158 
 Russia's claim  that the European  Commission granted confidential treatment  
without a showing of good cause (claim  #18) ................................ ................................ ...... 160 
 Russia's claim  that the European  Commission failed to request a meaningful summary 
(claim  #19) ................................ ................................ ................................ .....................  163 
 Russia's claim  that th e European  Commission used facts available in a manner 
inconsistent with Article  6.8 and Annex II of the Anti -Dumping Agreement (claim  #20) ............  165 
 Russia's claim  that the European  Commission failed to disclose essential facts 
(claim  #21) ................................ ................................ ................................ .....................  168 
 Russia's claim  that the European  Commission failed to explain the reasons  
which led to the imposition of the measures (claim  #22) ................................ ......................  170 
 Conclusion on Russia's claim  concerning the conduct of the third expiry review  .............  171 
8   CONCLUSIONS AND RECOMMENDATION  ................................ ................................ . 172  
 
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  LIST OF ANNEXES  
ANNEX  A 
WORKING PROCEDURES OF THE PANEL AND INTERIM REVIEW  
Contents  Page  
Annex  A-1 Working Procedures of the Panel  4 
Annex  A-2 Additional Working Procedures of the Panel concerning  Business Confidential 
Information  11 
Annex  A-3 Interim Review  13 
ANNEX B  
ARGUMENTS OF THE PARTIES  
Contents  Page  
Annex  B-1 First integrated executive summary of the arguments of the Russian  Federation  64 
Annex  B-2 First integrated executive summary of the arguments of the European Union  76 
Annex  B-3 Second integrated executive summary of  the arguments of the 
Russian  Federation  87 
Annex  B-4 Second integrated executive summary of the arguments of the European Union  99 
ANNEX C  
ARGUMENTS OF THE THIRD PARTIES  
Contents  Page  
Annex  C-1 Integrated executive summary of the arguments of Argentina  112 
Annex  C-2 Integrated executive summary of the arguments of Australia  117 
Annex  C-3 Integrated executive summary of the arguments of Japan  121 
Annex  C-4 Integrated executive summary of the arguments of the Republic of Korea  124 
Annex  C-5 Integrated executive summary of the arguments of Norway  127 
Annex  C-6 Integrated executive summary of the arguments of Ukraine  129 
Annex  C-7 Integrated executive summary of the arguments of the United States  131 
ANNEX D  
PRELIMINARY  RULING OF THE PANEL  
Contents  Page  
Annex D -1 Preliminary Ruling of the Panel (2 September 2019 )  137 WT/DS494/R  
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  CASES CITED IN THIS REPORT  
Short Title  Full Case Title and Citation  
Argentina – Ceramic Tiles  Panel Report, Argentina – Definitive Anti -Dumping Measures on Imports of 
Ceramic Floor Tiles from Italy , WT/DS189/R , adopted 5  November  2001, 
DSR 2001:XII,  p. 6241 
Argentina – Import 
Measures  Appellate Body Reports, Argentina – Measures Affecting the Importation of 
Goods , WT/DS438/AB/R  / WT/DS444/AB/R  / WT/DS445/AB/R , adopted 
26 January 2015, DSR  2015:II,  p. 579 
Australia – Anti-Dumping 
Measures on Paper  Panel Report, Australia – Anti-Dumping Measures on A4 Copy Paper , 
WT/DS529/R  and Add.1, adopted 28 January 2020  
Brazil – Desiccated Coconut  Appellate Body Report, Brazil – Measures Affecting Desiccated Coconut , 
WT/DS 22/AB/R , adopted 20 March 1997, DSR  1997:I,  p. 167 
Brazil – Desiccated Coconut  Panel Report, Brazil – Measures Affecting Desiccated Coconut , WT/DS22/R , 
adopted 20 March 1997, upheld by Appellate Body Report WT/DS22/AB/R , 
DSR 1997:I,  p. 189 
Canada – Wheat Exports 
and Grain Imports  Appellate Bo dy Report, Canada – Measures Relating to Exports of Wheat and 
Treatment of Imported Grain , WT/DS276/AB/R , adopted 27  September 2004, 
DSR 2004:VI,  p. 2739 
Chile – Price Band System  Appellate Body Report, Chile – Price Band System and Safeguard Measures 
Relating to Certain Agricultural Products , WT/DS207/AB/R , adopted 
23 October  2002, DSR  2002:VIII,  p. 3045 (Corr.1, DSR  2006:XII,  p. 5473)  
China – Broiler Products 
(Article 21.5 – US) Panel Report, China − Anti-Dumping and Countervailing Duty Measures on Broiler 
Products from the United States – Recourse to  Article  21.5 of the DSU by the 
United States , WT/DS427/RW  and Add.1, adopted 28  February 2018  
China – GOES  Appellate Body Report, China – Countervailing and An ti-Dumping Duties on Grain 
Oriented Flat -Rolled Electrical Steel from the United States , WT/DS414/AB/R , 
adopted 16 November 2012, DSR  2012:XII,  p. 6251 
China – HP-SSST (Japan) / 
China – HP-SSST (EU)  Appellate Body Reports, China – Measures Imposing Anti -Dumping Duties on 
High-Performance Stainless Steel Seamless Tubes ("HP -SSST") from Japan / 
China – Measures Imposing Anti -Dumping Duties on High -Performance Stainless 
Steel Seamless Tubes ("HP -SSST") from the European Union , WT/DS454/AB/R  
and Add.1 / WT/DS460/AB/R  and Add.1, adopted 28 October 2015, 
DSR 2015:IX,  p. 4573 
China – Raw Materials  Panel Reports, China – Measures Related to the Exportation of Various Raw 
Materials , WT/DS394/R , Add.1 and Corr.1 / WT/DS395/R , Add.1 and Corr.1 / 
WT/DS398/R , Add.1 and Corr.1, adopted 22  February  2012, as modified by 
Appellate Body Reports WT/DS394/AB/R  / WT/DS395/AB/R / WT/DS398/AB/R , 
DSR 2012:VII,  p. 3501 
EC – Chicken Cuts  Appellate Body Report, European  Communities – Customs Classification of 
Frozen Boneless Chicken Cuts , WT/DS269/AB/R , WT/DS286/AB/R , adopted 
27 September 2005, and Corr.1, DSR  2005:XIX,  p. 9157 
EC – Fasteners (China)  Appellate Body Report, European  Communities – Definitive Anti -Dumping 
Measures on Certain Iron or Steel Fasteners from China , WT/DS397/AB/R , 
adopted 28 July 2011, DSR  2011:VII,  p. 3995 
EC – Fasteners (China)  Panel Report, European Communities – Definitive Anti -Dumping Measures on 
Certain Iron or Steel Fasteners from China , WT/DS397/R  and Corr.1, adopted 
28 July 2011, as modified by Appellate Body Re port WT/DS397/AB/R , 
DSR 2011:VIII,  p. 4289 
EC – Fasteners (China) 
(Article 21.5 – China)  Appellate Body Report, European Communities – Definitive Anti -Dumping 
Measures on Certain Iron or Steel Fasteners from China – Recourse to  
Article  21.5 of the DSU by China , WT/DS397/AB/RW  and Add.1 , adopted 
12 February 2016, DSR  2016:I,  p. 7 
EC – Hormones  Appellate Body Report, European Communities – Measures Concerning Meat and 
Meat Products (Hormones) , WT/DS 26/AB/R , WT/DS48/AB/R , adopted 
13 February 1998, DSR  1998:I,  p. 135 
EC – IT Products  Panel Reports, European Communities and its member States – Tariff Treatment 
of Certain Information Technology Products , WT/DS375/R  / WT/DS376/R  / 
WT/DS377/R , adopted 21 September 2010, DSR 2010:III,  p. 933 
EC – Salmon (Norway)  Panel Report, European Communities – Anti-Dumping Measure on Farmed 
Salmon from Norway , WT/DS337/R , adopted 15 January 2008, and Corr.1, 
DSR 2008:I,  p. 3 WT/DS494/R  
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  Short Title  Full Case Title and Citation  
EC – Selected Customs 
Matters  Appellate Body Report, European Communities – Selected Customs Matters, 
WT/DS315/AB/R , adopted 11 December 2006, DSR 2006:IX, p. 3791  
EC – Tube or Pipe Fittings  Appellate Body Report, European Communities – Anti-Dumping Duties on 
Malleable Cast Iron Tube or Pipe Fittings from Brazil , WT/DS219/AB/R , adopted 
18 August 2003, DSR  2003:VI,  p. 2613 
EC and certain member 
States – Large Civil Aircraft  Appellate Body Report, European Communities and Certain Member States – 
Measures Affecting Trade in Large Civil Aircraft , WT/DS316/AB/R , adopted 
1 June 2011, DSR  2011:I,  p. 7 
EU – Biodiesel (Argentina)  Appellate Body Report, European Union – Anti-Dumping Measures on Biodiesel 
from Argentina , WT/DS473/AB/R  and Add.1, adopted 26  October 2016, 
DSR 2016:VI,  p. 2871 
EU – Biodiesel (Argentina)  Panel Report, European Union – Anti-Dumping Measures on Biodiesel from 
Argentina , WT/DS473/R  and Add.1, adopted 26 October 2016, as modified by 
Appellate Body Report WT/DS473/AB/R , DSR  2016:VI,  p. 3077 
EU – Biodiesel (Indonesia)  Panel Report, European Union – Anti-Dumping Measures on Biodiesel from 
Indonesia , WT/DS480/R  and Add.1, adopted 28 February 2018  
EU – Footwear (China)  Panel R eport, European Union – Anti-Dumping Measures on Certain Footwear 
from China , WT/DS405/R , adopted 22 February 2012, DSR  2012:IX,  p. 4585 
Guatemala – Cement I  Appellate Body Report, Guatemala – Anti-Dumping Investigation Regarding 
Portland Cement from Mexico , WT/DS60/AB/R , adopted 25  November 1998, 
DSR 1998:IX,  p. 3767 
Guatemala – Cement II  Panel Report, Guatemala – Definitive Anti -Dumping Measures on Grey Portland 
Cement from Mexico , WT/DS156/R , adopted 17  Novembe r 2000, DSR  2000:XI,  
p. 5295 
India – Iron and Steel 
Products  Panel Report, India – Certain Measures on Imports of Iron and Steel Products , 
WT/DS518/R  and Add.1, circulated to WTO Members 6  November 2018 
[appealed by India 14 December 2018 – the Division suspended its work on 
10 December 2019 ] 
Russia – Commercial 
Vehicles  Panel Report, Russia – Anti-Dumping Duties on Light Commercial Vehicles from 
Germany and Italy , WT/DS479/R  and Add.1, adopted 9  April 2018, as modified 
by Appellate Body Report WT/DS479/AB/R  
Russia – Tariff Treatment  Panel Report, Russia – Tariff Treatment of Certain Agricultural and Manufacturing 
Products , WT/DS485/R , Add.1, Corr.1, and Corr.2, adopted 26 September 2016, 
DSR 2016:IV,  p. 1547 
Ukraine – Ammonium 
Nitrate  Appellate Body Report, Ukraine – Anti-Dumping Measures on Ammonium Nitrate , 
WT/DS493/AB/R  and Add.1, adopted 30  September  2019 
Ukraine – Ammonium 
Nitrate  Panel Report, Ukraine – Anti-Dumping Measures on Ammonium Nitrate , 
WT/DS493/R , Add.1 and Corr.1, adopted 30 September 2019, as upheld by 
Appellate Body Report WT/DS493/AB/R  
US – 1916 Act  Appellate Body Report, United States – Anti-Dumping Act of 1916, 
WT/DS136/AB/R , WT/DS162/AB/R , adopted 26 September 2000, DSR 2000:X, 
p. 4793  
US – Anti-Dumping 
Methodologies (China)  Appellate Body Report, United States – Certain Methodologies and Their 
Application to Anti -Dumping Proceedings Involving China , WT/DS471/AB/R  and 
Add.1, adopted 22 May 2017, DSR  2017:III,  p. 1423 
US – Carbon Steel  Appellate Body Report, United States – Countervailing Duties on Certain 
Corrosion -Resistant Carbon Steel Flat Products from Germany , WT/DS213/AB/R  
and Corr.1, adopted 19 December 2002, DSR  2002:IX,  p. 3779 
US – Carbon Steel (India)  Appellate Body Report, United States – Countervailing Measures on Certain Hot -
Rolled Carbon Steel Flat Products from India , WT/DS436/AB/R , adopted 
19 December 2014, DSR 2014:V, p. 1727  
US – Continued Zeroing  Appellate Body Report, United States – Continued Existence and Application of 
Zeroing Methodo logy, WT/DS350/AB/R , adopted 19  February 2009, 
DSR 2009:III,  p. 1291 
US – Corrosion -Resistant 
Steel Sunset Review  Appellate Body Report, United States – Sunset Review of Anti -Dumping Duties 
on Corrosion -Resistant Carbon Steel Flat Products from Japan , WT/DS244/AB/R , 
adopted 9 January 2004, DSR  2004:I,  p. 3 WT/DS494/R  
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  Short Title  Full Case Title and Citation  
US – Corrosion -Resistant 
Steel Sunset Review  Panel Report, United States – Sunset Review of Anti -Dumping Duties on 
Corrosion -Resistant Carbon Steel Flat Products from Japan , WT/DS244/R , 
adopted 9 January 2004, as modified by Appellate Body Report WT/DS244/AB/R , 
DSR 2004:I,  p. 85 
US – Countervailing and 
Anti-Dumping Measures 
(China)  Appellate Body Report, United States – Countervailing and Anti -Dumping 
Measures on Certa in Products from China , WT/DS449/AB/R  and Corr.1, adopted 
22 July 2014, DSR  2014:VIII,  p. 3027 
US – Countervailing Duty 
Investigation on DRAMS  Appellate Body Report, United States – Countervailing Duty Investigation on 
Dynamic Random Access Memory Semiconductors (DRAMS) from Korea , 
WT/DS296/AB/R , adopted 20 July 2005, DSR  2005:XVI,  p. 8131 
US – DRAMS  
 Panel Report, United States – Anti-Dumping Duty on Dynamic Random Access 
Memory Semiconductors (DRAMS) of One Megabit or Above from Korea , 
WT/DS99/R , adopted 19 March 1999, DSR  1999:II,  p. 521 
US – Hot-Rolled Steel  Appellate Body Report, United States – Anti-Dumping Measures on Certain 
Hot-Rolled Steel Products from Japan , WT/DS184/AB/R , adopted 
23 August  2001, DSR  2001:X,  p. 4697 
US – Lamb  Appel late Body Report, United States – Safeguard Measures on Imports of Fresh, 
Chilled or Frozen Lamb Meat from New Zealand and Australia , WT/DS177/AB/R , 
WT/DS178/AB/R , adopted 16 May 2001, DSR  2001:IX,  p. 4051 
US – Oil Country Tubular 
Goods Sunset Reviews  Appellate Body Report, United States – Sunset Reviews of Anti -Dumping 
Measures on Oil Country Tubular Goods from Argentina , WT/DS268/AB/R , 
adopted 17 December 2004, DSR  2004:VII,  p. 3257 
US – Oil Country Tubular 
Goods Sunset Reviews  Panel Report, United States – Sunset Reviews of Anti -Dumping Measures on Oil 
Country Tubular Goods from Argentina , WT/DS268/R  and Corr.1, adopted 
17 December 2004, as modified by Appellate Body Report WT/DS268/AB/R , 
DSR 2004:VIII,  p. 3421 
US – Oil Country Tubular 
Goods Sunset Reviews 
(Article 21.5 – Argentina)  Panel Report, United States – Sunset Reviews of Anti-Dumping Measures on Oil 
Country Tubular Goods from Argentina – Recourse to Article 21.5 of the DSU by 
Argentina , WT/DS268/RW , adopted 11  May 2007, as modified by Appellate Body 
Report WT/DS268/AB/RW , DSR  2007:IX, p. 3609  
US – Shrimp (Viet Nam)  Panel Report, United States – Anti-Dumping Measures on Certain Shrimp from 
Viet Nam , WT/DS404/R , adopted 2 September 2011, DSR  2011:X,  p. 5301 
US – Shrimp II (Viet  Nam)  Panel Report, United States – Anti-Dumping Measures on Certain Shrimp from 
Viet Nam , WT/DS429/R  and Add.1, adopted 22 April 2015, upheld by Appellate 
Body Report WT/DS429/AB/R , DSR 2015:III,  p. 1341 
US – Softwood Lumber V 
(Article 21.5 – Canada)  Appellate Body Report, United States – Final Dumping Determination on 
Softwood Lumber from Canada – Recourse to  Article  21.5 of the DSU by Canada , 
WT/DS264/AB/RW , adopted 1 September 2006, DSR  2006:XII,  p. 5087 
US – Softwood Lumber VI 
(Article 21.5 – Canada)  Appellate Body Report, United States – Investigation of the International Trade 
Commission in Softwood Lumber from Canada – Recourse to  Article  21.5 of the 
DSU by Canada , WT/DS277/AB/RW , adopted 9 May 2006, and Corr.1, 
DSR 2006:XI,  p. 4865 
US – Stainless Steel 
(Mexico)  Appellate Body Report, United States – Final Anti -Dumping Measures on 
Stainless  Steel from Mexico , WT/DS344/AB/R , adopted 20  May 2008, 
DSR 2008:II,  p. 513 
US – Washing Machines  Appellate Body Report,  United States – Anti-Dumping and Countervailing 
Measures on Large Residential Washers from Korea , WT/DS464/AB/R  and Add.1, 
adopted 26 September 2016, DSR 2016:V,  p. 2275 
US – Wool Shirts and 
Blouses  Appellate Body Report, United States – Measure Affecting Imports of Woven 
Wool Shirts and Blouses from India , WT/DS33/AB/R , adopted 23 May 1997, an d 
Corr.1, DSR  1997:I,  p. 323 
US – Zeroing (EC)  Appellate Body Report, United States – Laws, Regulations and Methodology for 
Calculating Dumping Margins ("Zeroing") , WT/DS294/AB/R , adopted 
9 May 2006, and Corr.1, DSR  2006:II,  p. 417 
US – Zeroing (Japan)  Appellate Body Report, United States – Measures Relating to Zeroing and Sunset 
Reviews , WT/DS322/AB/R , adopted 23 January 2007, DSR  2007:I,  p. 3 
US – Zeroing (Japan) 
(Article 21.5 – Japan)  Appellate Body Report, United States – Measures Relating to Zeroing and Sunset 
Reviews – Recourse to  Article  21.5 of the DSU by Japan , WT/DS322/AB/RW , 
adopted 31 August 2009, DSR 2009:VIII,  p. 3441 
 
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  EXHIBITS REFERRED TO IN THIS REPORT  
Exhibit  Short Title  
(if any)  Description/Long title  
RUS-2 Basic AD Regulation  Regulation  (EU) No. 2016/1036 of the European Parliament and of 
the Council of 8 June 2016 on protection against dumped imports 
from countries not members of the European Union, Official Journal 
of the Eur opean Union,  L Series, No. 176  (30 June 2016) , p. 21 
RUS-3 Regulation 1972/2002  Council Regulation (EC) No. 1972/2002 of 5 November 2002 
amending Regulation (EC) No. 384/96 on the protection against 
dumped imports from countries not members of the European 
Community, Official Journal of the European Communities,  
L Series, No. 305 (7 November 2002), p. 1  
RUS-9  Statements dated 16 October 2002, "Statements by the 
Commission to the Council Minutes", Annex  No. 11510/02  
RUS-10 Council resolution of 8 
June 1993  Council resolution of 8 June 1993 on the quality of drafting of 
Community legislation, Official Journal of the European 
Communities,  C Series, No. 166, (17 June 1993), p. 1  
RUS-11 Regulation  2017/2321  Regulation  (EU) 2017/2321 o f the European Parliament and of the 
Council of 12 December 2017 amending Regulation  (EU) 
2016/1036 on protection against dumped imports from countries 
not members of the European Union and Regulation  (EU) 
2016/1037 on protection against subsidised imports  from countries 
not members of the European Union, Official Journal of the 
European Union, L Series, No.  338 (19 December 2017),  p. 1 
RUS-12 Case T 235/08  General Court,  Case T 235/08, Acron OAO and Dorogobuzh OAO v. 
Council of the European Union (7 February 2013)  
(ECLI:EU:T:2013:65 ) 
RUS-13 Case T 84/07  General Court,  Case T 84/07, EuroChem Mineral and Chemical 
Company OAO (EuroChem MCC) v. Council of the European Union 
(7 February 2013) (ECLI:EU:T:2013:64 ) 
RUS-14 Case T 459/08  General Court, Case T 459/08, EuroChem Mineral and Chemical 
Company OAO (EuroChem MCC) v. Council of the European Union 
(7 February 2013)  
(ECLI:EU:T:2013:66 ) 
RUS-15 Regulation  661/2008  Council Regulation  (EC) No.  661/2008 of 8 July 2008 imposing a 
definitive anti -dumping duty on imports of ammonium nitrate 
originating in Russia following an expiry review pursuant to  
Article  11(2) and a partial interim review pursuant to  Article  11(3) 
of Regulation  (EC) No.  384/96, Official Journal of the European 
Union, L Series No. 185 (12 July 2008),  p. 1 
RUS-16 Regulation  812/2008  Council Regulation  (EC) No.  812/2008 of 11 August 2008 amending 
Regulation  (EC) No.  954/2006 imposing a definitive anti -dumping 
duty on imports of certain seamless pipes and tubes of i ron or steel 
originating, inter alia , in Russia, Official Journal of the European 
Union, L Series No. 220, (15 August 2008),  p. 1 
RUS-17 Regulation  236/2008  Council Regulation  (EC) No.  236/2008 of 10 March 2008 concerning 
terminating the partial interim review pursuant to  Article  11(3) of 
Regulation  (EC) No.  384/96 of the anti -dumping duty on imports of 
ammonium nitrate originating in Russia, Official Journal of the 
European Union, L Series, No.  75, (18  March 2008),  p. 1 
RUS-18 Regulation  1256/20 08  Council Regulation  (EC) No.  1256/2008 of 16  December 2008 
imposing a definitive anti -dumping duty on imports of certain 
welded tubes and pipes of iron or non -alloy steel originating in 
Belarus, the People's Republic of China and Russia following a 
proceeding pursuant to  Article  5 of Regulation  (EC) No.  384/96, 
originating in Thailand following an expiry review pursuant to  
Article  11(2) of the same Regulation, originating in Ukraine 
following an expiry review pursuant to  Article  11(2) and an interim 
review pursuant to  Article  11(3) of the same Regulation, and 
terminating the proceedings in respect of imports of the same 
product originating in Bosnia and Herzegovina and Turkey, Official 
Journal of the European Union,  L Series, No. 343, (19  December 
2008),  p. 1 
RUS-19 Regulation  1891/2005  Council Regulation  (EC) No.  1891/2005 of 14  November 2005 
amending Regulation  (EEC) No.  3068/92 imposing a definitive 
anti-dumping duty on imports of potassium chloride originating in 
Belarus, Russia or Ukraine, Official Journal of the European Union,  
L Series, No. 302, (19 November 2005),  p. 14 WT/DS494/R  
BCI deleted, as indicated  [[***]] 
- 11 - 
 
  Exhibit  Short Title  
(if any)  Description/Long title  
RUS-20 Regulation  1911/2006  Council Regulation  (EC) No.  1911/2006 of 19  December 2006 
imposing a definitive anti -dumping duty on imports of solutions of 
urea an d ammonium nitrate originating in Algeria, Belarus, Russia 
and Ukraine following an expiry review pursuant to  Article  11(2) of 
Regulation  (EC) No.  384/96, Official Journal of the European Union,  
L Series, No. 365 (21 December 2006),  p. 26 
RUS-21 Regulatio n 2015/110  Commission Implementing Regulation  (EU) No.  2015/110 of 
26 January 2015 imposing a definitive anti -dumping duty on 
imports of certain welded tubes and pipes of iron or non -alloy steel 
originating in Belarus, the People's Republic of China and R ussia 
and terminating the proceeding for imports of certain welded tubes 
and pipes of iron or non -alloy steel originating in Ukraine following 
an expiry review pursuant to  Article  11(2) of Council 
Regulation  (EC) No.  1225/2009, Official Journal of the Euro pean 
Union,  L Series, No. 20 (27 January 2015),  p. 6 
RUS-22 Regulation  1269/2012  Council Implementing Regulation  (EU) No.  1269/2012 of 
21 December 2012 amending Implementing Regulation  (EU) 
No. 585/2012 imposing a definitive anti -dumping duty on imports 
of certain seamless steel pipes, of iron or steel, originating, inter 
alia, in Russia, following a partial interim review pursuant to  
Article  11(3) of Regulation  (EC) No.  1225/2009, Official Journal of 
the European Union, L Series, No. 357 (28 December 2012),  p. 1 
RUS-23 Regulation  1194/2013  Council Implementing Regulation  (EU) No.  1194/2013 of 
19 November 2013 imposing a definitive anti -dumping duty and 
collecting definitively the provisional duty imposed on imports of 
biodiesel or iginating in Argentina and Indonesia, Official Journal of 
the European Union, L Series, No.  315 (26 November 2013),  p. 2 
RUS-24 Regulation  237/2008  Council Regulation  (EC) No.  237/2008 of 10 March 2008 
terminating the partial interim review pursuant to  Article  11(3) of 
Regulation  (EC) No.  384/96 of the anti -dumping duty on imports of 
ammonium nitrate originating, inter alia , in Ukraine, Official Journal 
of the European Union, L Series, No. 75 (18 March 2008),  p. 8 
RUS-26  GATT, CONTRACTING PARTIES – Ninth Session – Review Working 
Party II on Tariffs, Schedules and Customs Administration – Article 
VI – Proposal by the Czechoslovak Delegation – Revision, 
W.9/86/Rev.1 (21 December 1954)  
RUS-27  GATT, CONTRACTING PARTIES – Ninth Ses sion – Report of Review 
Working Party III on Barriers to Trade Other Than Restrictions or 
Tariffs, L/334 (1 March 1955)  
RUS-28 Regulation  240/2008  Council Regulation  (EC) No.  240/2008 of 17 March 2008 repealing 
the anti -dumping duty on imports of urea originating in Belarus, 
Croatia, Libya and Ukraine, following an expiry review pursuant to  
Article  11(2) of Regulation  (EC) No.  384/96, Official Journal of the 
European Union, L Series, No. 75 (18  March 2008),  p. 33 
RUS-29 Case T 118/10  General Court , Case T 118/10, Acron OAO v. Council of the 
European Union (7 February 2013) ECLI:EU:T:2013:67  
RUS-30 Regulation  2018/825  Regulation  (EU) No. 2018/825 of the European Parliament and of 
the Council of 30 May 2018 amending Regulation  (EU) 2016/1036 
on pro tection against dumped imports from countries not members 
of the European Union and Regulation  (EU) 2016/1037 on 
protection against subsidised imports from countries not members 
of the European Union, Official Journal of the European Union, 
L Series, No.  143 (7 June 2018),  p. 1 
RUS-31 Regulation  1050/2006  Council Regulation  (EC) No.  1050/2006 of 11 July 2006 imposing a 
definitive anti -dumping duty on imports of potassium chloride 
originating in Belarus and Russia, Official Journal of the European 
Union, L  Series, No. 191 (12 July 2006),  p. 1 
RUS-32 Regulation  907/2007  Council Regulation  (EC) No.  907/2007 of 23 July 2007 repealing the 
anti-dumping duty on imports of urea originating in Russia, 
following an expiry review pursuant to  Article  11(2) of  
Regulation  (EC) No.  384/96, and terminating the partial interim 
reviews pursuant to  Article  11(3) of such imports originating in 
Russia, Official Journal of the European  Union, L  Series, No. 198 
(31 July 2007),  p. 4 WT/DS494/R  
BCI deleted, as indicated [[***]] 
- 12 - 
 
  Exhibit  Short Title  
(if any)  Description/Long title  
RUS-33 Regulation  1251/2009  Council Implementing Regulation  (EU) No.  1251/2009 of 18 
December 2009 amending Regulation  (EC) No.  1911/2006 
imposing a definitive anti -dumping duty on imports of solutions of 
urea and ammonium nitrate originating, inter alia , in Russia, Official 
Journal of the European Union, L Series, No.  338 
(19 December  2009),  p. 5 
RUS-34 Regulation  954/2006  Council Regulation  (EC) No.  954/2006 of 27 June 2006 imposing 
definitive anti -dumping duty on imports of certain seamless pipes 
and tubes, of iron or steel originating in Croatia, Romania, Russia 
and Ukraine, repealing Council Regulations (EC) No.  2320/97 and 
(EC) No.  348/2000, terminating the interim and expiry reviews of 
the anti -dumping duties on imports of certain seamless pipes and 
tubes of iron or non -alloy steel originating, inter alia , in Russia and 
Romania and terminating the interim reviews of the anti -dumping 
duties on imports of certain seamless pipes and tubes of iron or 
non-alloy steel originating, inter alia , in Russia and Romania and in 
Croatia  and Ukraine, Official Journal of the European Union, 
L Series, No.  175 (29 June 2006),  p. 4 
RUS-35 Regulation  238/2008  Council Regulation  (EC) No.  238/2008 of 10 March 2008 
terminating the partial interim review pursuant to  Article  11(3) of 
Regulation  (EC) No.  384/96 of the anti -dumping duty on imports of 
solutions of urea and ammonium nitrate originating in Russia, 
Official Journal of the European Union, L Series, No.  75 
(18 March  2008),  p. 14 
RUS-36 Regulation  994/2007  Commission Regulati on (EC) No.  994/2007 of 28  August 2007 
imposing a provisional anti -dumping duty on imports of ferro -silicon 
originating in the People's Republic of China, Egypt, Kazakhstan, 
the former Yugoslav Republic of Macedonia and Russia, Official 
Journal of the Euro pean Union, L Series, No.  223 (29 August 2007),  
p. 1 
RUS-37 Regulation  172/2008  Council Regulation  (EC) No.  172/2008 of 25 February 2008 
imposing a definitive anti -dumping duty and collecting definitively 
the provisional duty imposed on imports of ferro -silicon originating 
in the People's  Republic of China, Egypt, Kazakhstan, the former 
Yugoslav Republic of Macedonia and Russia, Official Journal of the 
European Union, L Series, No.  55 (28 February 2008),  p. 6 
RUS-38 Case T 111/14  General Court, Case T 111/14, Unitec Bio SA v. Council of the 
European Union (15 September 2016)  
ECLI:EU:T:2016:505   
RUS-47  Oxford Dictionaries online, definition of "that" 
http://www.oed.com/view/Entry/200177  (accessed 
21 March  2019)  
RUS-48 Notice of initiation  Notice of initiation of an expiry review of the anti -dumping 
measures applicable to imports of ammonium nitrate originating in 
Russia, Official Journal of the European Union, C  Series, No. 200 
(12 July 2013),  p. 12 
RUS-53  New Oxford American Dictionary , 3rd edn, A.  Stevenson and C. A. 
Lindberg (ed.), (Oxford University Press, 2011), definition of "this"  
RUS-54  Oxford Dictionaries online, definition of "these" 
http://www.oed.com/view/Entry/200651?result=2&rskey=Oa3AQ
E& (accessed 21 March  2019)  
RUS-55  Oxford Dictionaries online, definition of "those" 
http://www.oed.com/view/Entry/201046?redirectedFrom=those&  
(accessed 21 March 2019)  
RUS-66 Regulation  999/2014  Commission Impl ementing Regulation  (EU) No.  999/2014 of 
23 September 2014 imposing a definitive anti -dumping duty on 
imports of ammonium nitrate originating in Russia following an 
expiry review pursuant to  Article  11(2) of Council Regulation  (EC) 
No. 1225/2009, Official Journal of the European Union, L Series 
No. 280 (24 September 2014),  p. 19 
RUS-68 Regulation  2022/95  Council Regulation  (EC) No.  2022/95 of 16 August 1995 imposing a 
definitive anti -dumping duty on imports of ammonium nitrate 
originating in Russia, Official Journal of the European Communities,  
L Series, No. 198 (23 August 1995),  p. 1 
RUS-70 Regulation  658/2002  Council Regulation  (EC) No.  658/2002 of 15 April 2002 imposing a 
definitive anti -dumping duty on imports of ammonium nitrate 
originating in Russia, Official Journal of the European Communities, 
L Series, No. 102 (18 April 2002),  p. 1 WT/DS494/R  
BCI deleted, as indicated  [[***]] 
- 13 - 
 
  Exhibit  Short Title  
(if any)  Description/Long title  
RUS-72 Regulation  945/2005  Council Regulation  (EC) No.  945/2005 of 21 June 2005 amending 
Regulation  (EC) No.  658/2002 imposing a definitive anti -dumping 
duty on imports of ammonium nitrate originating in Russia and 
Regulation  (EC) No.  132/2001 imposing a definitive anti -dumping 
duty on imports of ammonium nitrate originating in, inter alia , 
Ukraine, following a partial interim revie w pursuant to  Article  11(3) 
of Regulation  (EC) No.  384/96, Official Journal of the 
European  Union, L Series, No. 160 (23 June 2005),  p. 1 
RUS-73 Case T 348/05  
(10 September  2008)  Court of First Instance, Case T 348/05, JSC Kirovo -Chepetsky 
Khimichesky Kom binat v. Council of European Union 
(10 September  2008) (ECLI:EU:T:2008:327 ) 
RUS-74 Case T 348/05  
(9 July 2019)  Court of First Instance, Case T 348/05 INTP,  JSC Kirovo -Chepetsky 
Khimichesky Kombinat v. Council of the European Union 
(9 July 2019) (ECLI:EU:T:2009:261)  
RUS-78 (BCI)  Final disclosure  General Disclosure Document in R569 – Expiry Review of the 
Anti-dumping measures applicable to imports of ammonium nitrate 
originating in the Russian Federation, Proposal to impose definitive 
anti-dumping duties (13 June 2014)  
RUS-79 (BCI)   Comments by RFPA on the definitive disclosure (8 July 2014)  
RUS-81 (BCI)   Hearing Report in Case R569 (17 July 2014)  
RUS-82 (BCI)   RFPA submission (4 March 2014)  
RUS-83 (BCI)   Fertilizers Europe's submission (12 May 2014)  
RUS-84 (BCI)   Dataset filed by the EU industry (16 April 2014)  
RUS-85 (BCI)  Comments by RFPA on 
the initiation of an 
expiry review  Comments by RFPA on the likelihood of recurrence of material 
injury, continuation of alleged dumping and procedural issues 
(30 September 2013)  
RUS-86 (BCI)   Sampling questionnaire submitted by OJSC Kuybyshevazot  
RUS-90 (BCI)   RFPA submission (25 April 2014)  
RUS-94 (BCI)   Fertilizers Europe's submission (14 May 2014) (excerpts)  
RUS-96 Regulation  2018/1722  Commission Implementing Regulation  (EU) 2018/1722 of 14 
November 2018 amending Implementing Regulation  (EU) 
No. 999/2014 imposing a definitive anti -dumping duty on imports 
of ammonium nitrate originating in Russia following an interim  
review pursuant to  Article  11(3) of Regulation  (EU) 2016/1036 of 
the European Parliament and of the Council, Official Journal of the 
European Union, L Series No. 287 (15 November 2018),  p. 3. 
RUS-99 (BCI)   Page 85 of Annex B, Dumping of the Request  
RUS-102 
(BCI)   Comments on the definitive disclosure , Annex  VI-B-I 
RUS-105 Regulation  490/2013  Commission Regulation  (EU) No.  490/2013 of 27 May 2013 
imposing a provisional anti -dumping duty on imports of biodiesel 
originating in Argentina and Indonesia, Official Journal of the 
European Union, L Series, No.  141 (28 May 2013), p. 6 
RUS-110  Decision dated 5 August 2013 from the European Commission  
RUS-116 Regulation  989/2009  Council Regulation  (EC) No.  989/2009 of 19 October 2009 
amending Regulation  (EC) No.  661/2008, imposing a definitive 
anti-dumping duty on imports of ammonium nitrate originating in 
Russia, Official Journal of the European Union, L Series, No. 278 
(23 October 2009),  p. 1 
RUS 117 (BCI)   Fertilizers Europe's submission (20 March 2014 ) (excerpts)  
RUS-119 (BCI)   Fertilizers Europe's submission (10 March 2014)  
RUS-120 (BCI)   Fertilizers Europe's submission (5 May 2014)  
RUS-121 (BCI)   Fertilizers Europe's submission (3 June 2014)  
RUS-123 (BCI)   Undertaking Report Euro Chem 
RUS-124 (BCI)   Responses to questionnaires provided by Acron  
RUS-125 (BCI)   Determination of dumping margins for exports to 
the European  Union 
RUS-135 Commission Decision 
2008/577  Commission Decision of 4 July 2008 accepting the undertakings 
offered in connection with the anti -dumping proceeding concerning 
imports of ammonium nitrate originating in Russia and Ukraine, 
Official Journal of the European Uni on, L Series, No.  185 
(12 July 2008), p. 40 
RUS-144 (BCI)   Responses to questionnaires provided by Ural Chem 
RUS-145 (BCI)   Dumping files of Acron  WT/DS494/R  
BCI deleted, as indicated [[***]] 
- 14 - 
 
  Exhibit  Short Title  
(if any)  Description/Long title  
RUS-146 Regulation  663/98  Council Regulation  (EC) No.  663/98 of 23 March 1998 amending 
Regulation  (EC) No.  2022/95 imposing a definitive anti -dumping 
duty on imports of ammonium nitrate originating in Russia, Official 
Journal of the European Communities, L Series, No.  93 
(26 March  1998),  p. 1 
RUS-149  Oxford Dictionaries online, definition of "without prejudice" 
https://www.oed.com/view/Entry/150162?redirectedFrom=withou
t+prejudice#eid28522373  (accessed 25 September 2019),  p. 3 
RUS-166 Regulation  2019/1688  Commission Implementing Regulation  (EU) No.  2019/1688 of 
8 October 2019 imposing a definitive anti -dumping duty and 
definitively collecting the provisional duty imposed on imports of 
mixtures of urea and ammonium nitrate originating in Russia, 
Trinidad and Tobago and the United States of America, Official 
Journal of the European Union, L  Series, No. 258 (9 October 2019),  
p. 21 
RUS-167 Regulation  2019/576  Commission Implementing Regula tion (EU) No.  2019/576 of 
10 April 2019 imposing a provisional anti -dumping duty on imports 
of mixtures of urea and ammonium nitrate originating in Russia, 
Trinidad and Tobago and the United States of America, Official 
Journal of the European Union,  L Series, No.  100 (11 April 2019),  
p. 7 
RUS-188 (BCI)   Index NC File  
EU-7  AN Russia Sunset: Summary of EU producers ' facts and arguments  
(5 June 2014 ) 
EU-9 (BCI)   Business plan of the investment project for NAK Azot  
EU-11  Request for an Anti -Dumping Sunset Review (Article  11(2) of the 
Basic EC Anti -Dumping Regulation), Imports of Ammonium Nitrate 
(AN) Originating in Russia  
EU-15 (BCI)   Annex 2: Detailed explanations on corrections done to data 
submitted by EuroChem Group  
EU-20  Confirmation of the receipt of a submission of Fertilizers Europe 
(14 May 2014)  
EU-22 Email between the 
Commission and 
GrowHow  Email correspondence dated 6 May 2014 between the Commission 
and GrowHow regarding AN for technical use  
EU-25  Email correspondence dated 29 April and 9 May 2014 between the 
Commission and Fertilizers Europe  
 
 WT/DS494/R  
BCI deleted, as indicated  [[***]] 
- 15 - 
 
  ABBREVIATIONS USED IN THIS REPORT  
Abbreviation  Description  
Anti-Dumping  Agreement  Agreement on Implementation of  Article  VI of the General Agreement on Tariffs 
and Trade 1994  
AN ammonium nitrate  
Basic AD Regulation  Regulation  (EU) No.  2016/1036 of the European Parliament and of the Council 
of 8 June 2016 on protection against dumped imports from countries not 
members of the European Union, Official Jour nal of the European Union, 
L Series, No. 176 (30 June 2016),  p. 21 
BCI business confidential information  
CIF cost insurance freight  
CN combined nomenclature  
CPO crude palm oil  
DSB Dispute Settlement Body  
DSU Understanding on Rules and Procedures Governing the Settlement of Disputes  
EGAN  explosive grade ammonium nitrate  
FGAN  fertilizer grade ammonium nitrate  
FOB free on board  
GAAP  generally accepted accounting principles  
GATT 1994  General Agreement on Tariffs and Trade 1994  
IGAN industrial grade ammonium nitrate  
Kirovo  JSC Kirovo -Chepetsky Khimichesky Kombinat  
LNG liquefied natural gas  
MEDT  Ministry of Economic Development and Trade  
NME non-market economy  
OJSC Open Joint Stock Company  
POI period of investigation  
RFPA Russian Fertilizers Producers Association  
RIP review investigation period  
SCM Agreement on Subsidies and Countervailing Measures  
SG&A  selling, general and administrative  
Vienna Convention  Vienna Convention on the Law of Treaties, Done at Vienna, 23 May 1969, 1155 
UNTS 331; 8 International Legal Materials 679  
WTO World Trade Organization  
 WT/DS494/R  
BCI deleted, as indicated [[***]] 
- 16 - 
 
  1  INTRODUCTION  
1.1  Complaint by the Russian Federation  
1.1.  On 7 May 2015 , the Russia n Federation  (Russia)  requested consultations with the 
European  Union pursuant to  Articles  1 and 4 of the Understanding on Rules and Procedures 
Governing the Settlement of Disputes (DSU),  Article  XXII:1 of the General Agreement on Tariffs and 
Trade 1994  (GATT 1994) , and Articles 17.2 and 17.3 of the Agreement on Implementation of  
Article  VI of the General Agreement on Tariffs and Trade 1994  (Anti-Dumping  Agreement ), with 
respect to the measures and claims  set out below.1 Consultations were held o n 26 June 2015 . 
1.2.  Russia  requested further consultations with the European  Union on 29 March 2016 with respect 
to the measures and claims  set out below .2 A second round of consultations was held on 19 May  2016 
but failed to resolve the dispute.  
1.2  Panel establishment and composition  
1.3.  On 7 November 2016 , Russia  requested the establishment of a panel pursuant to  Articles  4.7 
and 6 of the DSU,  Article  XXIII of the GATT 1994, and  Articles  17.4 and 17.5 of the 
Anti-Dumping  Agreement  with standard terms of reference.3 At its meeting on 16 December 2016 , 
the Dispute Settlement Body (DSB) established a panel pursuant to the request of Russia  in 
document WT/DS 494/4 , in accordance with  Article  6 of the DSU.4 
1.4.  The Panel's terms of referen ce are the following:  
To examine, in the light of the relevant provisions of the covered agreements cited by 
the parties to the dispute, the matter referred to the DSB by the Russian Federation  in 
document WT/DS 494/4  and to make such findings as will assis t the DSB in making the 
recommendations or in giving the rulings provided for in those agreements.5 
1.5.  On 5 December 2018, Russia requested the Director -General to determine  the composition of 
the Panel, pursuant to  Article  8.7 of the DSU.  On 17 December 2018, the Director -General 
accordingly composed the Panel as  follows : 
Chairperson:  Ms Usha Dwarka -Canabady  
 
Members:   Mr Jan Heukelman  
   Mr Arie Reich  
 
1.6.  Argentina, Australia, Brazil, Canada, China, Egypt, India, Indonesia, Japan, the Republic of 
Korea  (Korea), Mexico, Norway, Ukraine, the United States, and Viet Nam notified their interest in 
participating in the Panel proceedings as third parties.  
1.3  Panel proceedings  
General  
1.7.  After consultation with the parties, the Panel adopted its Working Procedures6 and timetable 
on 8 March 2019 . The Panel revised its timetable on 4 April, 14 May, 2 August, 30 September , 
28 November 2019  and on 5 June 2020.  
1.8.  The Panel held a first substantive meeting with the parties on 11-12 September 2019 . A session 
with the third parties took place on 12 September 2019 . The Panel held a second substantive meeting 
with the parties on 20-21 November 2019 . On 31 January 2020 , the Panel issued the descriptive 
 
1 Request for consultations by the Russian Federation, WT/DS494/1.  
2 Request for consultations by the Russian Federation, Addendum , WT/DS494/1/Add.1.  
3 Request for the establishment of a Panel by the Russian Federation, WT/DS494/4 (Russia's panel 
request).  
4 DSB, Minutes of the meeting held on 16 December 2016, WT/DSB/M/390.  
5 Constitution note of the Panel, WT/DS494/5.  
6 See the Panel's Working Procedures in Annex A -1. WT/DS494/R  
BCI deleted, as indicated  [[***]] 
- 17 - 
 
  part of its Report to the parties. The Panel issued its Interim Report to the parties on 17 April 2020 . 
The Panel issued its Final Report to the parties on 29 June 2020 . 
Additional Working Procedures concerning  Business Con fidential Information  
1.9.  After consultations with the parties, the Panel adopted its Additional Working Procedures 
concerning Business Confidential Information ( BCI) on 22 March  2019.7 
European Union's request for a p reliminary ruling  
1.10.   In its first written submission dated 10 May 2019, the European  Union request ed the Panel to 
issue a preliminary ruling that several claims  made by Russia in relation to the 
European  Union's  anti-dumping measures on imports of ammonium nitrate (AN) origina ting in 
Russia were not properly before the Panel .8 Russia  responded to the European Union's  request for a 
preliminary ruling on 17 June 2019.9 Third parties did not comment  on the European Union's  request 
in their third -party submissions  filed on 17 May 2019 . On 2 September 2019, af ter carefully 
considering the European  Union's request and Russia's response to this request,  the Panel issued a 
preliminary ruling  rejecting the objections raised by the European  Union in relation to the scope  of 
the dispute .10 The Panel's decision is set out in Annex D -1. 
2  FACTUAL ASPECTS  
2.1  The measures at issue  
2.1.  This dispute concerns four sets of measures attributed  to the European Union.  
2.2.  First, Russia  challenges "as such", i.e. independently of their application  in specific instances , 
certain aspects of the following provisions of the Basic AD Regulation11: (a) the first subparagraph 
of Article  2(3); (b) the second subparagraph of  Article  2(3); and  (c) the second subparagraph of  
Article  2(5).12 
2.3.  Second, Russia challenges  the so -called C ost Adjustment Methodology , an unwritten measure 
Russia claims  the European  Commission  applies in anti -dumping investigations and reviews , when 
determining the cost s of production in the country of origin  for investigated companies .13 
2.4.  Third, Russia challenges certain aspects of the expiry review of the anti-dumping duties on 
imports of certain welded tubes and pipes of iron or non -alloy steel originating in Russia  (certain 
welded tubes and pipes) , which resulted in Regulation  2015/110  of 26 January 2015 .14 
2.5.  Finally,  Russia challenges certain aspects of the third expiry review  of the anti-dumping duties 
on imports of  AN originating in  Russia , which resulted in Regulation  999/2014  of 
23 September  2014.15 Russia also challenges certain aspects of the partial interim review which 
resulted in  Regulation  2018/1722  of 14 November 2018.16 
3  PARTIES' REQUESTS FOR FINDINGS AND RECOMMENDATIONS  
3.1.  In the context of its "as such" claims, Russia  requests that the Panel find that17: 
 
7 Additional Working Procedures concerning Business Confidential Information (Annex A -2). 
8 European Union's first written submission, para.  44. 
9 Russia's response to the European Union's preliminary ruling request.  
10 Preliminary ruling of the Panel, 2 September 2019 (Annex D -1). 
11 Basic AD Regulation, (Exhibit  RUS-2). 
12 Russia's first written submission, para.  21. 
13 Russia's first written submission, para.  21. 
14 Regulation  2015/110, ( Exhibit  RUS-21); Russia's first written submission, para.  22. 
15 Regulation  999/2014, ( Exhibit  RUS-66); Russia's first written submission, p ara. 22. 
16 Regulation  2018/1722, (Exhibit  RUS-96). The anti -dumping duties on ammonium nitrate originating 
from Russia were originally imposed, subsequently reviewed and levied pursuant to the legal instruments listed 
in pages 4 and 5 of Russia's panel req uest.  
17 Russia's first written submission, para.  1257.  WT/DS494/R  
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  a. The first subparagraph of  Article  2(3) of the Basic AD Regulation  is inconsistent "as such" 
with Article  2.2 of the Anti -Dumping Agreement  because  it requires that , in the 
construction of normal value of the like product , only "representative" prices shall be 
used.18 
b. The second subparagraph of  Article  2(3) of the Basic AD Regulation  is inconsistent with  
Article  2.2 of the Anti -Dumping Agreement  because it provides that "a particular market 
situation for the product concern ed" exists "when prices are artificially low" , thus 
introducing an additional circumstance  for determining normal value via alternative 
methods .19 
c. The last part of the second subparagraph of  Article  2(5) of the Basic AD Regulation  – "or, 
where such informa tion is not available or cannot be used, on any other reasonable basis, 
including information from other representative markets"  – is inconsistent with : 
i. Article  2.2.1.1 of the Anti -Dumping Agreement  because it prevents the 
European  Commission  from calculat ing the cost of production on the basis of the cost 
"associated with the production" of the product under consideration ; and  
ii. Article  2.2 of the Anti -Dumping Agreement because it prevents the 
European  Commission  from constructing the cost of production on t he basis of "the 
cost of production in the country of origin".20 
3.2.  Russia also requests the Panel to find that the alleged Cost Adjustment Methodology is 
inconsistent with : 
a. the first sentence of  Article  2.2.1.1 of the Anti -Dumping Agreement  because, in applying 
the alleged Cost Adjustment Methodology, the European  Commission : 
i. rejects part of the costs reflected in the records that are kept by the exporter or 
producer under investigation in accordance with the generally accepted accounting 
principles (GAAP) of the exporting country and that reasonably reflect the costs 
associated with the production and sale of the product under consideration ; and  
ii. uses costs other than " the costs associated with the production and sale of the product 
under cons ideration" reasonably reflected in the records kept by the exporter or 
producer under investigation in accordance with the GAAP of the exporting country.21 
b. Article  2.2 of the Anti -Dumping Agreement  because, in applying the alleged Cost 
Adjustment Methodolo gy, the European  Commission  uses, for the construction of normal 
value , costs other than "the cost of production in the country of origin". As a result, the 
constructed normal value is not based on "the cost of production in the country of origin".22 
3.3.  With respect to the anti -dumping measures on imports of  certain welded tubes and pipes  
originating in Russia , Russia  requests the Panel to find that  the European  Union acted inconsistently 
with: 
a. the first sentence of  Article  2.2.1.1  because , in determining  the normal value in the course 
of the expiry review, the European  Commission : 
i. failed to calculate the cost of production of certain welded tubes and pipes on the basis 
of the records that are kept by the producer under investigation in accordan ce with 
the GAAP of the exporting country and reasonably reflect the costs associated with the 
 
18 Russia's first written submission, paras.  21 and 91.  
19 Russia's first written submission, paras.  21 and 134.  
20 Russia's first written submission, paras.  268 and 281.  
21 Russia's first written submiss ion, paras.  21, 405, and 1258.  
22 Russia's first written submission, paras.  21, 425, and 1258.  WT/DS494/R  
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  production and sale of the product under consideration , by rejecting the gas prices 
actually paid  by the producer under investigation23; and  
ii. used costs other tha n "the costs associated with the production and sale of the product 
under consideration" reasonably reflected in the records kept by the producer under 
investigation in accordance with the GAAP of the exporting country.24 
b. Article 2.2.1 of the Anti -Dumping Agreement because , in the ordinary -course -of-trade test 
conducted in the expiry review,  the European  Commission  used incorrect costs of 
production , calculated in violation of the first sentence of  Article  2.2.1.1 .25 
c. Article  11.3 of the Anti -Dumping Agreement because , in its determination of the likelihood 
of recurrence of dumping, the European  Commission  relied on a dumping margin 
determined on the basis of costs of production calculated in violation of the first sentence 
of Article  2.2.1.1 and  Article 2.2.1 of the Anti -Dumping Agreement.26 
3.4.  With respect to the anti -dumping measures on imports of AN from Russia, Russia  requests that 
the Panel find  that the European  Union acted inconsistently with27: 
a. Articles 1, 2.1, 2.2, 2.4, 2.6, 3.1, 3.2, 3.4, 3.5, 4.1, 9.1, 9.3 , and 18.1 of the 
Anti-Dumping  Agreement and  Articles  I:1, II:1(a) and II:1(b), VI:1 and VI:2 of the 
GATT  1994 because the European  Commission  made likelihood of recurrence of dumping 
and injury determinations, extended the anti -dumping m easures , and levied anti -dumping 
duties on imports of stabilized AN, as well as industrial grade ammonium nitrate ( IGAN), 
for which  Russia alleges  no anti -dumping investigation was conducted and no dumping 
and material injury determinations were made . 
b. Article 11.3 of the Anti -Dumping Agreement by initiating the expiry review that led to the 
adoption of Regulation  999/2014 . 
c. Articles 11.3, 3.1, 11.1, 1 , and 18.1 of the Anti -Dumping Agreement by conducting a 
single expiry review with regard to anti -dumping mea sures having different product scopes 
of application , combining within such review the likelihood of recurrence of injury and 
dumping determinations with regard to products subject to anti -dumping measures having 
different scopes of application , and extend ing the measures applicable to Kirovo based on 
the likelihood of injury and dumping determinations for the product other than that which 
formed the basis for the anti -dumping measures applied on products of this company . 
d. Articles 11.3, 2.6, 3.1, 3.2, 3.4 , and 4.1 of the Anti -Dumping Agreement by making a 
recurrence of injury determination based on erroneous and incomplete data provided by 
the domestic industry and by incorrectly defining the domestic industry . 
e. Articles 2.1, 2.3, 6.8, 6.10 , and 11.3 of the A nti-Dumping Agreement due to the failure to 
examine the impact of the absence of dumping by the largest Russian exporters during 
the review investigation period . 
f. Articles 11.3, 2.1, 2.2 , and 2.4 of the Anti -Dumping Agreement, as well as  Article  VI:1 of 
the GATT 1994 , by making the affirmative determination of likelihood of dumping on the 
basis of alleged "dumping" without conducting proper dumping margin calculations . 
g. Articles 11.1, 9.3, and 1 of the Anti -Dumping Agreement and  Article  VI:2 of the GATT  1994 
by extending the anti -dumping measures and applying anti -dumping duties on imports of 
AN from Russia  based on the dumping margins that (i) were incorrectly established under  
Articles  2.2.1.1, 2.2.1 , and 2.2 of the Anti -Dumping Agreeme nt and  Article  VI:1(b)(ii) of 
 
23 Russia's first written submission, paras.  22, 447, and 1259.  
24 Russia's first written submission, paras.  22, 447, and 1259.  
25 Russia's first written submission,  paras.  22, 447, 464, 475 -476, 483 -485, and 1259.  
26 Russia's first written submission, paras.  22, 447, 476, 484 -485, and 1259.  
27 Russia's first written submission, para.  1260.  WT/DS494/R  
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  the GATT 1994, and (ii) thereby exceeded the dumping margins had they been properly 
established . 
h. Article  11.3 of the Anti -Dumping Agreement by extend ing the duration of anti -dumping 
duties on the basis of calculations made in the 2008 expiry review , in which the 
European  Commission  relied on dumping margins calculated not in line with  
Articles  2.2.1.1, 2.2.1 , and 2.2 of the Anti -Dumping Agreement . 
i. Articles 2.1, 2.2, 9.3 , and 11.3 of the Anti -Dumping Agreement, and Articles  I:1, VI:1, 
VI:2, and the second Ad Note to  Article  VI:1 of the GATT 1994 , by imposing and continuing 
levying country -wide anti -dumping duties on AN from Russia for which the country -wide 
dumping margin was calculated  pursuant to a methodology that does not conform to these 
provisions . 
j. Articles 1 and 18.1 of the Anti -Dumping Agreement, because the anti-dumping measures 
in respect of AN from Russia  are not in conformity with the provisions of  Articles  VI:1 and 
VI:2 of the GATT 1994 , as interpreted by the Anti -Dumping Agreement . 
k. Articles 11.3, 3.1 , and 3.2 of the Anti -Dumping Agreement by failing to perform proper 
undercutting calculations . 
l. Articles 11.3, 3.1, 3.4 , and 4.1 of the Anti -Dumping Agreement by basing the likelihood 
of recurrence of injury determination (i) on data relating to a non -representative sample 
of the domestic industry; (ii) on the incomplete, non -representative and erroneous data 
provided by the sampled EU companies; and (ii i) by failing to examine and  explain the 
significantly divergent economic performance between the sampled and non -sampled 
EU domestic producers . 
m. Articles 11.3 and 3.1 of the Anti -Dumping Agreement by erroneously concluding that there 
were no indications that the non -injurious situati on of the EU domestic industry would be 
sustainable . 
n. Articles 11.3 and 3.1 of the Anti -Dumping Agreement because the conclusion that the 
expiry of the measures would be likely to lead to recurrence of dumping and recurrence 
of injury was not based on positive evidence and an objective examination of the relevant 
factors, including the level of production capacities available in Russia and the ability of 
third country markets to absorb Russian exports . 
o. Articles 6.1.2, 6.4 , and 11.4 of the Anti -Dumping A greement by delaying on numerous 
occasions access to the non -confidential file for the Russian exporters . 
p. Articles 6.1.3, 6.2, 6.4 , and 11.4 of the Anti -Dumping Agreement because the 
European  Commission  failed to provide to the interested parties the full text of the written 
application received on 28  March 2013, on the basis of which it initiated the expiry review . 
q. Articles 6.5 and 11.4 of the Anti -Dumping Agreement by treating as confidential, without 
any good cause shown, information supplied by the dome stic industry . 
r. Articles 6.5.1 and 11.4 of the Anti -Dumping Agreement by failing to require the domestic 
industry to furnish sufficiently detailed non -confidential summaries of the data submitted 
in confidence . 
s. Articles 6.8 and 11.4 of the Anti -Dumping Agre ement and paragraphs 3, 5, 6 , and 7 of 
Annex II to the Anti -Dumping  Agreement  by refusing to rely on information provided by 
Russian exporters.  
t. Articles 6.9 and 11.4 of the Anti -Dumping Agreement by failing to inform the interested 
parties of the essential  facts under consideration which formed the basis for the decision 
to extend the anti -dumping measures . WT/DS494/R  
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  u. Articles 12.2 and 12.2.2 of the Anti -Dumping Agreement by failing to provide in sufficient 
detail the findings and conclusions reached on all issues of fact and law considered material 
by the investigating authority  and to explain the reasons which led to the acceptance or 
rejection of the arguments of the interested parties.  
3.5.  Russia  requests that the measures at issue should be withdrawn .28 
3.6.  The European  Union requests that the Panel reject Russia' s claims  in this dispute in their 
entirety  and find that the challenged measures are not inconsistent with the 
European  Union's  obligations under WTO law.29 
4  ARGUMENTS OF THE PARTIES  
4.1.  The arguments of the parties are reflected in their executive summaries, provided to the Panel 
in accordance with paragraph 23 of the Working Procedures adopted by the Pan el (see Annexes B -1 
to B-4). 
5  ARGUMENTS OF THE THIRD PARTIES  
5.1.  The arguments of Argentin a, Australia, Japan,  Korea, Norway, Ukraine, and the United States  
are reflected in their executive summaries, provided in accordance with paragraph 26 of the 
Working  Procedures adopted by the Panel (see Annexes C -1 to C-7).30  
6  INTERIM REVIEW  
6.1.  On 17 April 2020 , the Panel issued its Interim Report to the parties. Annex A -3 sets out the 
requests made by the parties at the interim review stage, as well as the Panel's discussion and 
disposition of those requests.  
7  FINDINGS  
7.1  General principles regarding trea ty interpretation, the applicable standard of review, 
and burden of proof  
Treaty interpretation  
7.1.  Article  3.2 of the DSU provides that the WTO dispute settlement system serves to clarify the 
existing provisions of the covered  agreements "in accordance with c ustomary rules of interpretation 
of public international law".  Article  17.6(ii) of the Anti -Dumping  Agreement similarly requires panels 
to interpret that  agreement's  provisions in accordance with the customary rules of interpretation of 
public internationa l law. The principles codified in  Articles  31 and 32 of the Vienna Convention on 
the Law of Treaties (Vienna Convention ) are generally accepted as such customary rules.  
Standard of review  
7.2.  Article  11 of the DSU provides, in relevant part, that:  
[A] panel sh ould make an objective assessment of the matter before it, including an 
objective assessment of the facts of the case and the applicability of and conformity 
with the relevant covered  agreements.  
In addition,  Article  17.6 of the Anti -Dumping  Agreement sets  forth the special standard of review 
applicable to disputes under the Anti -Dumping  Agreement:  
 
28 Russia's first written submission, para.  1261.  
29 European Union's first writte n submission, paras.  689 and 691.  
30 Brazil  filed a third -party submission, made an oral statement at the third -party session and submitted 
responses to the questions posed by the Panel to the third parties following the third -party session, but did not 
submit an integrated executive summary of its arguments to the Panel.  Canada, China, Egypt, India, 
Indonesia, Mexico, and Viet  Nam did not  submit written or oral arguments to the Panel.  WT/DS494/R  
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  (i) in its assessment of the facts of the matter, the panel shall determine whether 
the authorities'  establishment of the facts was proper and whether their eval uation of 
those facts was unbiased and objective. If the establishment of the facts was proper 
and the evaluation was unbiased and objective, even though the panel might have 
reached a different conclusion, the evaluation shall not be overturned;  
(ii) the panel shall interpret the relevant provisions of the  [Anti-Dumping ] Agreement 
in accordance with customary rules of interpretation of public international law. Where 
the panel finds that a relevant provision of the  [Anti-Dumping ] Agreement admits of 
more t han one permissible interpretation, the panel shall find the authorities'  measure 
to be in conformity with the  [Anti-Dumping ] Agreement if it rests upon one of those 
permissible interpretations.  
7.3.  Thus,  Article  11 of the DSU and  Article  17.6 of the Anti -Dump ing Agreement together establish 
the standard of review we will apply with respect to both the factual and the legal aspects of the 
present dispute. The "objective assessment" standard in  Article  11 of the DSU requires a panel to 
review whether the authori ty has provided a reasoned and adequate explanation as to  (a) how the 
evidence on the record supported its factual findings; and (b) how those factual findings support the 
overall determination.31 In performing this task , a panel should not conduct a de novo review of the 
evidence, nor substitute its judgment for that of the investigating authority. A panel must limit its 
examination to the evidence that was before the investigating authority during the investigation32 
and must take into account all such evidence submitted by the parties to the dispute.33 At the same 
time, a panel must not simply defer to the conclusions of the investigating authority; a 
panel's  examination of those conclusions must be "in -depth" and "c ritical and searching".34 
7.4.  Finally, although couched in terms of an obligation on a panel,  Article  17.6(i) of the 
Anti-Dumping  Agreement in effect defines when an investigating authority can be considered to have 
acted inconsistently with the Anti -Dumping  Agreement in the course of its "establishment" and 
"evaluation" of the relevant facts.35 Therefore, a panel must assess if the establishment of the facts 
by the investigating authority was proper and if the evaluation of those facts by that authori ty was 
unbiased and objective.36 If these standards have not been met, a panel must hold the investigating 
authority's  establishment or evaluation of the facts to be inconsistent with the 
Anti-Dumping  Agreement.37 
Burden of proof  
7.5.  The general principles app licable to the allocation of the burden of proof in WTO dispute 
settlement require that a party claiming a violation of a provision of a WTO  Agreement must assert 
and prove its claim.38 Therefore, as the complaining party in this proceeding, Russia  bears t he burden 
of demonstrating that the challenged aspects of the measures at issue are inconsistent with the 
Anti-Dumping  Agreement and the GATT 1994. A complaining party will satisfy its burden when it 
establishes a prima facie  case, namely a case which, in the absence of effective refutation by the 
defending party, requires a panel, as a matter of law, to rule in favour of the complaining party.39 
Finally, it is generally for each party asserting a fact to provide proof thereof.40 
7.2  Russia's claims  concerning the Cost Adjustment Methodology  
7.6.  We find it appropriate to begin our analysis of Russia's claims  by examining Russia's complaint 
in relation to the so -called Cost Adjustment M ethodology.  
 
31 Appellate  Body Reports, US – Countervailing Duty Investigation on DRAMS , para.  186; US – Lamb , 
para. 103. 
32 Article  17.5(ii) of the Anti -Dumping Agreement requires a panel to examine the matter based on the 
facts made available to the authorities.  
33 Appellate  Body Report, US – Countervailing Duty Investi gation on DRAMS , para.  187. 
34 Appellate  Body Report, US – Softwood Lumber VI (Article  21.5 – Canada) , para.  93. 
35 Appellate  Body Report, US – Hot-Rolled Steel , para.  56. 
36 Appellate  Body Report, US – Hot-Rolled Steel , para.  56. 
37 Appellate  Body Report, US – Hot-Rolled Steel , para.  56. 
38 Appellate  Body Report, US – Wool Shirts and Blouses , DSR 1997: I, p. 337. 
39 Appellate  Body Report, EC – Hormones , paras.  98 and 104.  
40 Appellate  Body Report, US – Wool Shirts and Blouses , DSR 1997: I, p. 335. WT/DS494/R  
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Introduction  
7.7.  In this dispute, Russia challenges an alleged unwritten measure of "general and prospective 
application"41 attributable to the European Union, which Russia labels "Cost Adjustment 
Methodology".42 According to Russia, pursuant to the Cost Adjustment Methodology, when 
calculating the costs of production  of producers or exporters under investigation in 
anti-dumping  proceedings, the European  Commission : 
a. rejects part of the costs reflected in the records , that are kept by the exporter or producer 
under investigation in accordance with the GAAP of the export ing country and that 
reasonably reflect the costs associated with the production and sale of the product under 
consideration, as not reasonably reflecting the costs associated with the production and 
sale of the product under consideration , when such costs  – in particular, input costs and/or 
prices – are viewed by the authority as "artificially or abnormally low" due to alleged 
"distortions" or "market impediments" , such as government price regulation or the 
application of export duties in the country of or igin; and  
b. replaces and/or adjusts such recorded cost data using cost data obtained from other 
sources, including so -called "representative markets", which are viewed by the authority 
as unaffected by such "distortions" or "market impediments" , without ensu ring that such 
adjusted or established costs represent the cost of production in the country of origin .43 
7.8.  Russia requests the Panel to find that the Cost Adjustment Methodology is "as such", 
i.e. independent of its specific instances of application44, inco nsistent with:  
a. the first sentence of  Article  2.2.1.1 of the Anti -Dumping Agreement  by providing for (i ) the 
rejection of part of the costs reflected in the records  that are kept by the producer or 
exporter under investigation  in accordance with the GAAP of  the exporting country and 
that reasonably reflect the costs associated with the production and sale of the product 
under consideration; and (ii) the use of costs other than " the costs associated with the 
production and sale of the product under consideration".  
b. Article  2.2 of the Anti -Dumping Agreement  by providing for the use, in the construction of 
normal value , of costs other than the "cost of production in the country of origin". As a 
result, the constructed normal value is not based on "the c ost of production in the country 
of origin".  
7.9.  Russia further requests the Panel to recommend that the C ost Adjustment Methodology should 
be withdrawn.45 
7.10.   The European Union responds that Russia has not demonstrated the existence of the Cost 
Adjustment Methodology and requests the Panel to reject Russia's claims  that any such measure is 
inconsistent with  Articles  2.2.1.1 and 2.2 of the Anti -Dumping Agreement .46 
 
41 Russia's response s to Panel question No. 19, para.  68; question No. 67, para.  38; and opening 
statement at the second meeting of the Panel, para.  84. 
42 Russia submits that the short name "Cost Adjustment Methodology" reflects the essence of the 
challenged  measure, i.e. a methodology that results in specific input cost adjustments in anti -dumping 
proceedings. (Russia's second written submission, para.  443).  
43 Russia's first written submission, para.  299. 
44 While Russia omits to characterize its complaint in  connection to the Cost Adjustment Methodology as 
an "as such" claim, Russia indicates that "[its] challenge is not about a specific individual 'as applied' measure 
or 'as applied' measures, but about the [Cost Adjustment Methodology]" . (Russia's opening s tatement at the 
second meeting of the Panel, para.  82). Russia further requests that the Cost Adjustment Methodology "should 
be withdrawn" . (Russia's first written submission, para.  1261). Accordingly, we understand that Russia 
"seek[s] to prevent the [Eur opean Union] ex ante  from engaging" in the application of the Cost Adjustment 
Methodology in future anti -dumping proceedings . (Appellate Body Report, US – Oil Country Tubular Goods 
Sunset Reviews , para. 172). Therefore, in our examination of Russia's complaint in relation to the Cost 
Adjustment Methodology, we refer to it as an "as such" claim.  
45 Russia's first written submission, para.  1261.  
46 European Union's first written submission, para.  107; comments on Russia's response to Panel 
questio n No. 76, para.  45. WT/DS494/R  
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Whether Russia has demonstrated the existence of the Cost Adjustment 
Methodology  
7.11.   Given the unwritten nature of the measure challenged by Russia, t he first issue before the 
Panel is whether Russia has demonstrate d the existence of the Cost Adjustment Me thodology . 
Main arguments of the parties  
Russia  
7.12.   Russia submits that the European  Commission  implements the Cost Adjustment Methodology 
in any anti -dumping proceeding (original investigations , partial interim reviews, new exporter 
reviews, and expiry review s)47, in which it examines the records of the producers or exporters under 
investigation in order to calculate their costs of production  of the product under consideration .48 
7.13.   In explaining the operation of the Cost Adjustment Methodology, Russia asserts th at this 
methodology is not applied " in every single case " but is triggered by a "specific set of 
circumstances"49, pertaining to the existence of government measures allegedly affecting the 
domestic input prices. W hen faced with evidence of government regulation of input prices or other 
situations considered by the investigating authorities  as "distortions " in the country of origin, the 
European  Commission  examine s whether the recorded input prices are in line with world -market 
prices or prices in other countries  or markets . To this effect, the European  Commission  compares 
the recorded input prices with input prices from "undistorted" countries.50 Whenever the 
European  Commission  establish es that the recorded input p rices are significantly below  input prices 
in other countrie s or markets, or are set by the government, it conclude s that such recorded input 
prices cannot be used to calcula te the cost s of production  of the product under consideration  because 
they do not "reasonably reflect the costs associated with the production and sale of the product 
under consideration".51 
7.14.   Russia explains that, subsequently, the European  Commission  replace s the input prices 
actually incurred by the producer or exp orter under investigation with out-of-country input price  
information, which the European  Commission  considers "representative" and unaffected by 
"distortions".52 Russia refers to these out -of-country input price  information as "surrogate" input 
prices. Ho wever, Russia argues, the European  Commission  does not ensure that the adjusted costs 
represent the cost of production in the country of origin .53 According to Russia, this is because the 
purpose of the Cost Adjustment Methodology is to remove, from the ca lculation of the costs of 
production, the "distortions" in the country of origin affecting the input price paid by the producer 
or exporter.54 
7.15.   Russia maintains that, even though the Cost Adjustment Methodology is not explicitly 
described in the Basic AD Re gulation, there is a legal framework that "informs"55 this methodology 
and "confirms"56 its existence. In this connection, Russia argues that the anti -dumping 
determinations that Russia has put forward in this proceeding show that the European  Commission  
implements the Cost Adjustment Methodology pursuant to the first and second subparagraph s of 
Article  2(5) of the Basic AD Regulation57, when it examines whether the records of the producer or 
exporter under investigation "reasonably reflect the costs associated with the production and sale of 
 
47 Russia's first written submission, para.  326. 
48 Russia's first written submission, para.  304. 
49 Russia's first written submission, para.  300; opening statement at the first meeting of the Panel, 
para. 61; and second written submission , para.  458. 
50 Russia's first written submission, para.  305. 
51 Russia's first written submission, para.  306. 
52 Russia's first written submission, para.  307. 
53 Russia's first written submission, para.  299. 
54 Russia's first written submission, para.  283. 
55 Russia's first written submission, para.  312; opening statement at the first meeting of the Panel, 
para. 67. 
56 Russia's first written submission, paras.  285 and 322; opening statement at the first meeting of the 
Panel, para.  67. 
57 Russia's first written sub mission, paras.  305 and 307.  WT/DS494/R  
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  the product under consideration".58 Moreover, Russia submits that other provisions of the Basic AD 
Regulation59 and of EU law  "disclose the main aspects" of the Cost Adjustment Method ology.60 
7.16.   Russia portrays the Cost Adjustment Methodology as a measure that "has certain 
characteristics and will be applied or is likely to be applied in the future".61 In relation to the nature 
of this measure, Russia asserts that the Cost Adjustment Meth odology  constitutes a measure of 
"general and prospective application" . Russia further argues that, by using the Cost Adjustment 
Methodology in anti -dumping proceedings, the European  Commission  "significantly increases " the 
cost of production and, hence , the normal value and the  subsequent dumping  margin .62 Moreover, 
Russia submits that the Cost Adjustment Methodology  has a "normative value", which the 
European  Union "has strengthened " over time.  In this connection, Russia submits that the 
challenged methodology has been endorsed in judgments of the General Court of the 
European  Union and has been recently clarified by amendments to the Basic 
AD Regulation  introduced in 2017 and 2018 by , respectively, Regulation s 2017/232163 
and 2018/82 5.64 
7.17.   Russia argues that the Cost Adjustment Methodology  has been developed  by the 
European  Union, and is part of  the E uropean Union 's deliberate defensive trade policy , to remove 
alleged distortions in the domestic market .65 Arguing that the recentl y enacted 
Regulation s 2017/2321 and 2018/82 5 amount to a " legislative manifestation " of the Cost 
Adjustment Methodology in dealing with the issue of "distortions" in input pric es66, Russia request s 
the Panel to also examine and make rulings in relation to Regulation s 2017/2321 and 2018/82 5.67 
Specifically, Russia asks the Panel to find that  Article  2(6a) of the Basic AD Regulation  introduced 
by Regulation  2017/2321, Article  7(2a) of the Basic AD Regulation  introduced by 
Regulation  2018/82 5, and recitals 3, 5, and 7 of Regulation  2017/2321 and recital 8 of 
Regulation  2018/825 , are also inconsistent with  Articles  2.2.1.1 and 2.2 of the 
Anti-Dumping  Agreement  and should be withdrawn .68  
The European Unio n 
7.18.   The European Union contends that the alleged Cost Adjustment Methodology  does not exist  
and that Russia has failed to establish the existence and precise content of any such methodology . 
7.19.   The European Union takes issue with Russia's description of the challenged measure.69 Noting 
that Russia describes the alleged methodology as a measure of " general and prospective 
application ", the European Union argues that Russia is required to set out the precise content of the 
Cost Adjustment Methodology in terms o f "something that is capable of being understood as 
legislation or something akin to it " and to being applied to future cases .70 However, for the 
European  Union, the language used by Russia in setting out the precise content of the Cost 
 
58 Russia's first written submission, para.  306. 
59 Russia refers to the second subparagraph of Article  2(3) and to Articles  2(6a) and 7(2a) of the Basic 
AD Regulation. (Russia's first written submission, para.  322; opening state ment at the first meeting of the 
Panel, para.  67). 
60 Russia refers to recitals  3 and 4 of Regulation  1972/2002, recitals  3, 5, and 7 of 
Regulation  2017/2321, and recital  8 of Regulation  2018/825. (Russia's first written submission, para.  322; 
opening state ment at the first meeting of the Panel, para.  67). 
61 Russia's first written submission, para. 285; opening statement at the first meeting of the Panel, 
paras.  53 and 61; and second written submission, para.  514.  
62 Russia's first written submission, para s. 379-386. 
63 Regulation  2017/2321, (Exhibit  RUS-11). 
64 Regulation  2018/825, (Exhibit  RUS-30). 
65 Russia's first written submission, para s. 283 and 365 -378. 
66 Russia's response to Panel question No. 25, para.  95. 
67 Russia's response s to Panel question No. 25,  para. 101; question No. 67, para.  39; and second 
written submission, para.  617. 
68 Russia's response s to Panel question No. 25, para. 101; question No. 67, para.  39; and second 
written submission, para.  652. 
69 The European Union asserts that Russia is boun d by Russia's statements throughout the proceeding 
about its alleged measure . (European Union's comments on Russia's response s to Panel question No. 20, 
para. 57 and question No. 67, para. 28) . 
70 European Union's second written submission, para.  39; response to Panel question No. 20, para.  58. WT/DS494/R  
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  Adjustment Methodol ogy71 describes " what might or might not have occurred in an individual 
'as applied ' measure or a number of individual 'as applied ' measures ".72 In the 
European  Union's  view, this supposed measure cannot be characteri zed as one of "general and 
prospective application " because it is defined in terms that relate to the facts of particular case s, 
rather than in "as such" terms . For these reasons, the European Union finds Russia's description of 
the challenged measure as "logically incapable" of demonstrating t he existence and precise content 
of the Cost Adjustment Methodology.  
7.20.   Moreover, the European Union objects to the fact that Russia seeks to challenge  as an 
"unwritten measure" something that, according to Russia's explanations, result s from the operation 
of provisions of the Basic AD R egulation , such as the first subparagraph of  Article  2(5) and the 
second subparagraph of  Article  2(5). According to the European Union, one cannot simply point at 
provisions of a Member's anti -dumping legislation (which corre spond to multiple provisions of the 
Anti-Dumping Agreement),  and assert that, as a whole, they constitute something called a 
"methodology", which by nature is a measure of "general and prospective application ". According to 
the European Union, the applicat ion of these provisions depends on the facts of each case, so that 
the supposed measure cannot be characteri zed as one of "general and prospective application ".73 
7.21.   In this context, the European Union calls in question the relevance of the set of 
European  Commission 's anti -dumping determinations put forward by Russia, to demonstrate the 
existence of the alleged Cost Adjustment Methodology as a measure of "general and prospective 
application" .74 According to the European Union, these determinations are "nothin g more than 
examples " of the application of the provisions of the Basic AD Regulation, including the first and 
second subparagraph s of Article  2(5).75 For the European Union, by definition, these "as applied" 
measures constitute "particular instances in wh ich the investigating authority has taken a particular 
route through the complex decision tree set out in the legislation and reached a particular 
determination". However, in the European Union's view, evidence in this connection "does not 
conjure into exi stence" a "measure" that is different from what is written in the legislation .76 While 
Russia is certainly free to challenge the "as applied" measures adopted by the European  Commission  
if Russia considers that the European  Commission  has improperly interpreted or applied the 
provisions of the Anti -Dumping Agreement in those "as applied" measures, the European Union 
alleges that evidence of how provisions of the Basic AD Regulation  have been applied in particular 
cases to particular fa ct patterns "does nothing " to demonstrate the existence or precise content of 
the alleged unwritten methodology .77  
7.22.   Finally, the European Union objects to Russia's request that the Panel includes 
Regulation s 2017/2321 and 2018/82 5 in its terms of reference . The European Union notes that, a t 
the time of the panel request, Regulation s 2017/2321 and 2018/82 5 did not exist and that 
Russia's  panel request includes no reference to these Regulation s. Hence, the European Union 
submits, neither Regulation s 2017/2321  and 2018/82 5, nor any provision s of these Regulation s, are 
within  the Panel's terms of reference .78 
Legal standard  
7.23.   Articles  3.3, 4.4, and 6.2 of the DSU refer to "measures" challengeable in WTO  dispute 
settlement.79 In principle, any act or omission attributable to a WTO Member can be a measure of 
 
71 European Union's second written submission, para.  39 (referring to Russia's first written submission, 
para. 299).  
72 European Union's second written submission, para.  39. 
73 European Union's first written submission, paras.  88-90. 
74 European Union's second written submission, paras.  35-37. 
75 European Union's first written submission, para.  101. 
76 European Union's second written submission, paras.  35-37. 
77 European Union's first written submission, para.  102; second written submission, para.  46. 
78 European Union's first written submission, para.  109; response to Panel question No. 24, 
paras.  70-71. 
79 Article  3.3 of the DSU  refers to benefits accruing to a Member that are being "impaired by measures 
taken by another Member". Further, Article  6.2 of the DSU requires Members to "identify the specific measures 
at issue" in a panel request. This is one of the two requirements un der Article  6.2, which together comprise the 
"matter referred to the DSB". This matter then forms the basis for a panel's terms of reference under 
Article  7.1 of the DSU. (Appellate  Body Report, US – Carbon Steel , para.  125 (referring to Appellate  Body 
Report, Guatemala – Cement I , paras.  69-76)). WT/DS494/R  
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  that Member for the purposes of dispute settlement proceedings.80 Accordingly, a broad range of 
measures can be challenged in WTO dispute settlement.81  
7.24.   A measure need not be compartmentalized into categories in order to be challengeable in 
WTO dispute settlement. This is because t he term "measure " in Articles  3.3, 4.4,  and 6.2 of the DSU 
is sufficiently broad to encompass various types of acts or omissions attributable to a 
WTO Member.82 However, f or every measure, a complainant must establish that the measure is 
attributable to the respondent, as well as the precise co ntent of the challenged measure. 
A complainant may be required to demonstrate other elements, depending on the particular 
characteristics or nature of the measure being challenged.83 The "specific measure at issue, whether 
it is written or unwritten, and h ow it is described, characteri zed, and challenged by a complainant, 
will inform the kind of evidence a complainant is required to submit and the elements that it must 
prove in order to establish the existence of the measure challenged".84 
7.25.   In order to prove  the existence of a challengeable measure of "general and prospective 
application", a complainant must clearly establish that the alleged measure is attributable to the 
responding Member, its precise content, and that it has "general and prospective applic ation". 
A measure has "general application" to the extent that it affects an unidentified number of economic 
operators85 instead of economic operator s specified in the measure.86 A measure has "prospective 
application" to the extent that it applies in the future.87 
7.26.   The evidentiary threshold for proving the existence of an unwritten measure is high.88 A panel 
must not lightly assume the existence of an unwritten measure.89 Particular rigour is required on the 
part of a panel to support a conclusion as to the existence of a measure that is not expressed in the 
form of a written document, and a panel must carefully examine the concrete instrumentalities that 
evidence the exis tence of the purported measure.90 
Evaluation by the Panel  
7.27.   With these considerations in mind, and in the light of Russia's description and characteri zation 
of the purported Cost Adjustment Methodology, we will examine whether Russia has demonstrated 
the pre cise content of this measure ; its attribution to the European Union; and whether any such 
methodology has general and prospective application.  
Precise  content  
7.28.   In the light of Russia's description and explanations, we understand the Cost Adjustment 
Methodol ogy to consist of two elements, namely:  
a. the rejection  of the input costs reflected in the records of the producer or exporter under 
investigation on the grounds that they do not reasonably reflect the costs associated with 
the production and sale of the pr oduct under consideration, when such recorded input 
prices are significantly low, or affected  by government regulation or other situations 
considered by the investigating authorities  as "distortions " in the country of origin; and  
 
80 Appellate  Body Reports, US – Anti-Dumping Methodologies (China) , para.  5.122; 
US – Corrosion -Resistant Steel Sunset Review , para.  81; and Argentina – Import Measures , para.  5.100.  
81 Appellate  Body Reports, US – Anti-Dumping Methodologies (China) , para.  5.122; EC and certain 
member States – Large Civil Aircraft , para.  794; and Argentina – Import Measures , paras.  5.106 and 5.109.  
82 Appellate Body Report, US – Anti-Dumping Methodologies (China) , para.  5.122.  
83 Appellate Body Reports, Argentina – Import Measures , paras.  5.104 and 5.108.  
84 Appellate  Body Report, US – Anti-Dumping Methodologies (China) , para.  5.123 (referring to 
Appellate  Body Reports, Argentina – Import Measures , paras.  5.108 -5.110).  
85 Appellate Body Report, US – Anti-Dumping Methodologies (China), paras.  5.130 and 5.147.  
86 Appellate Body Report, US – Anti-Dumping Methodologies (China),  paras.  5.130 and 5.147.  
87 Appellate  Body Report, US – Anti-Dumping Methodologies (China) , para.  5.132 (referring to 
Appellate  Body Reports, US – Oil Country Tubular Goods Sunset Reviews , paras.  172 and 187; 
US ‒ Corrosion -Resistant Steel Sunset Review , para.  82). 
88 Appellate Body Report, US – Zeroing (EC) , para. 198. 
89 Appellate Body Report, US – Zeroing (EC) , para. 196. 
90 Appellate Body Report, US – Zeroing (EC) , para. 198. WT/DS494/R  
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  b. the subsequent replacement or adjustment of the recorded input prices by using 
out-of-country input cost data, without ensuring that the established or adjusted costs 
represent the cost of production in the country of origi n. 
7.2.2.3.1.1   Russia's characterization of the f irst element: Rejection of recorded input 
costs  
7.29.   Russia explains that the first element of the Cost Adjustment Methodology – the rejection of 
recorded input costs – results from the operation of the first subparagraph of  Article  2(5) of the 
Basic AD Regulation. This provision requires that the costs of a producer or exporter under 
investigation shall normally be calculated on the basis of its records, provided that the records are 
in accordance with the GAAP  of the countr y concerned and "it is shown that the records reasonably 
reflect the costs associated with the production and sale of the product under consideration".91 
7.30.   For Russia, w henever the recorded input prices are significantly low, or affected by 
government regula tion or other situations considered as "distortions" in the country of origin, the 
European  Commission , in application of the first subparagraph of  Article  2(5), concludes that the 
records, or the costs reflected in the records, cannot be used to calculate  normal value. The decision, 
according to Russia, is based on the European  Commission 's consideration that the input prices in 
the country of origin are "distorted".  It does not take into account  whether the records are in 
accordance with the GAAP  of the exporting country  or reflect the input prices actually paid by the 
producer under investigation in the country of origin . Pursuant to the Cost Adjustment Methodology, 
the European  Commission  rejects the costs reflected in  the records of the producer or exporter under 
investigation on the grounds that they do not " reasonably reflect the costs associated with the 
production and sale of the product under consideration ", even though  the records are in accordance  
with the GAAP  of the exporting country and "reasonably reflect the costs associated with the 
production and sale of the product under consideration ".92  
7.31.   For the European Union, Russia's explanations do not demonstrate the existence of a measure 
akin to legislation: rather, Russia describes an alleged unwritten norm in terms that expressly 
provide for non -compliance with its own provision s, i.e. a situation  where the recorded costs 
"reasonably reflect the costs associated with the production and sale of the product under 
consideration ", but are considered not to "reasonably reflect the costs associated with the production 
and sale of the product under consid eration ".93  
7.32.   We disagree with the European Union. In fact, we understand Russia to mean that the costs 
reflected in the records of the producer or exporter under investigation are rejected on grounds that 
are unrelated to whether the records of the producers meet the t wo above -mentioned conditions . 
For this reason, according to Russia, the Cost Adjustment Methodology is inconsistent with  
Article  2.2.1.1 of the Anti -Dumpin g Agreement, because it provides for the application of an 
additional test94, not contemplated in the first sentence of  Article  2.2.1.1 of  the 
Anti-Dumping  Agreement , i.e. whether  the recorded input prices are significantly low, or affected  by 
government regulation or other situations considered by the investigating authorities  as "distortions " 
in the co untry of origin.  
7.2.2.3.1.2   Russia's characterization of the s econd element: Use of out -of-country input 
price information  
7.33.   As defined by Russia, the second element of the methodology – the use of out -of-country 
input cost data  under the Cost Adjustment Methodology  – results from the operation of the second  
subparagraph of  Article  2(5) of the Basic AD Regulation . This provision provides that  "[if] costs 
associated with the production and sale of the product under investigation " are not reasonably 
reflecte d in the records  of the producer or exporter under investigation, "they shall be adjusted or 
 
91 The first subparagraph of Article  2(5) of the Basic AD Regulation  provides:  
Costs shall normally be calculated on the basis of records kept by the party under investigation, 
provided that  such records are in accordance with the generally accepted accounting principles of 
the country concerned and that it is shown that the records reasonably reflect the costs associated 
with the production and sale of the product under consideration.   
92 Russia's first written submission, para.  299; second written submission, para.  486. 
93 European Union's response to Panel question No. 20, para.  63. 
94 Russia's opening statement at the second meeting of the Panel, paras.  83 and 89.  WT/DS494/R  
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  established on the basis of the costs of other producers or exporters in the same country or, where 
such information is not available or cannot be used, on any oth er reasonable basis, including 
information from other representative markets".95 
7.34.   According to Russia, following the rejection of the recorded input prices, the 
European  Commission , in application of the second subparagraph of  Article  2(5) of the Basic AD 
Regulation, replaces the recorded input prices with out -of-country input price data, considered not 
to be affected by " distortions " or reflecting market conditions. According to Russia, the Cost 
Adjustment Methodology fails to "ensur [e] that [the] adjusted or established costs represent the 
cost of production in the country of origin".  We thus understand from the description and 
explanations of the challenged measure given by Russia96 that the second element of the alleged 
Cost Adjustment Methodology consists in (i) replacing the input prices reflected in the records of the 
producer or exporter under investigation with out -of-country input price information, and, in doing 
so, (ii) not adapting the out -of-country inpu t price information used in its calculations in order to 
reflect the cost of production of the product under consideration " in the country of origin ". 
7.35.   We note t he European Union's  view that Russia is precluded to challenge, as an unwritten 
measure, acts or  omissions resulting from the operation of legal provisions, such as the first and 
second subparagraph of  Article  2(5) of the Basic AD Regulation. According to the European Union, 
the operation of complex and highly fact -dependent provisions, such as the f irst and second 
subparagraph s of Article  2(5) of the Basic AD Regulation, "cannot be strung together" and labelled 
as a "methodology" and a measure of "general and prospective application", because it would not 
be possible to discern, at an abstract level,  what the precise content of any such alleged 
"methodology" is supposed to be or how these provisions might apply to future fact patterns.97 
7.36.   We disagree with the European Union's proposition that the operation of a legal provision 
cannot lead to an indepen dent measure that could be challenged in WTO dispute settlement. First, 
we note that "[i]n principle, any act or omission attributable to a WTO Member can be a measure of 
that Member for purposes of dispute settlement proceedings".98 Second, in our view, t here might be  
written provisions or instruments of a Member that "as such" are not necessarily WTO -inconsistent 
to the extent that they may be applied in both a WTO -consistent manner and a WTO -inconsistent 
manner. Hence, a challenge of such a written measu re can properly be rejected by a panel. However, 
if the Member in question repeatedly applies the written provision at issue in a certain manner, we 
fail to see why this could not, in certain circumstances, amount to an unwritten measure that may 
be challe nged "as such" in WTO dispute settlement. Moreover, if this repeated application is 
WTO-inconsistent, a panel could find that the unwritten measure is "as such" WTO -inconsistent.  This 
WTO-inconsistent aspect of the law may not be apparent from the text of the legal provision . In that 
scenario, it seems to us that requiring a complainant to challenge every instance of application would 
affect the complainant's right to bring an "as such" challenge and to prevent  the Member that 
maintain s the unwritten measure " ex ante  from engaging in the same conduct ".99 
7.37.   We recall that, b y definition, a n "as such" claim  challenges laws, regulations  or other 
instruments of a Member that have general and prospective application, by asserting that a 
Member' s conduct – not only in a particular instance that has occurred, but in future situations as 
well – will necessarily be inconsistent with that Member's WTO obligations.100 In the case  before us , 
by portraying the Cost Adjustment Methodology as a n unwritten measure of general and prospective 
application, Russia seeks to prevent the application of this methodology in  future anti-dumping 
proce edings conducted by the European  Commission . In our view, the fact that the alleged 
methodology results from the operati on of other (written) provisions is immaterial when establishing 
whether the Cost Adjustment Methodology can be challenged "as such" in WTO dispute settlement.  
 
95 Second subparagraph of Art icle 2(5) of the Basic AD Regulation. See para. 7.203  below.  
96 Russia's first written submission, paras.  299 and 360; response s to Panel question No. 66, para.  33; 
question  No. 68, paras.  40-44; and opening statement at the second meeting of the Panel, para. 83.  
97 European Union's first written submission, para.  101. 
98 Appellate Body Report, US – Corrosion -Resistant Steel Sunset Review , para.  81. 
99 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para.  172. 
100 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para.  172. WT/DS494/R  
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  7.2.2.3.1.3   Whether Russia has established the precise content of the Cost Adjustment 
Methodology  
7.38.   To substan tiate its factual assertions concerning the precise content of the Cost Adjustment 
Methodology, Russia has submitted, inter alia , a set of 17 anti-dumping determinations issued by 
the European  Commission  over a period of 15 years, between 2005 and 2019, in original 
investigations, partial interim reviews, new exporter reviews and expiry reviews, involving imports 
of products originating in Algeria, Argentina, Indonesia, Russia and Ukraine. The determinations 
cover imports of various products , namely potassium chloride , certain seamless pipes and tubes of 
iron or steel , solutions of urea and ammonium nitrate , ammonium nitrate , urea, certain welded tubes 
and pipes of iron or non -alloy steel, biodiesel , and mixtures of urea . The relevant input in the 
majority of determinations is gas. The European Union argue s that these determinations concern 
different countries , different products , and "different reasons for rejection (regulated prices, 
abnormally low prices, export taxes  …)" and that "there is no indication that the competent 
authorities could not reach a different conclusion in the future depending on the facts of the case 
before them ".101 The European Union has advanced no evidence to respond to the specific findings 
in the European  Commission 's anti -dumping determinations Russia relies upon to support the precise 
content of the Cost Adjustment Methodology.  
7.39.   Upon careful examination of these anti -dumping determinations , we are of the view that they 
establish the precise content of t he Cost Adjustment Methodology as described by Russia, for the 
following reasons . 
7.40.   The determinations show that, pursuant to the first subparagraph of  Article  2(5) of the Basic 
AD Regulation, the European  Commission  examine d the records of the p roducers in the light of 
evidence that the domestic input prices for the relevant input were significantly low when compared 
to prices in other markets102, regulated by the government  of the country of origin103, or affected by 
other government measures .104 The European  Commission  concluded that, due to these reasons, 
the input prices paid by the producers  and reflected in their records, could not be used to calculate 
the cost of production.105 The rejection of the actual input prices is based  on a conclusion that the 
input prices "were not reasonably reflected " in the producer/exporter's records or were found not to 
"reasonably reflect the costs " associated with the production and sale  of the relevant input or the 
product under consideration.106 Our review of the determinations reveals that the decisive factor in 
 
101 European Union's response to Panel question No. 70, paras. 6 -7.  
102 Regulation  238/2008, ( Exhibit  RUS-35), recital  21; Regulation  236/2008, ( Exhibit  RUS-17), 
recital  18; Regulation  661/2008, ( Exhibit  RUS-15), recital  34; Regulation  1891/2005, ( Exhibit  RUS-19), 
recital  30; Regulation  1050/2006, ( Exhibit  RUS-31), recital  53; Regulation  954/2006, (Exhibit  RUS-34), 
recitals  95 and 119; Regulation  1911/2006, ( Exhibit  RUS-20), recitals  27 and 58; Regulation  1194/2013, 
(Exhibit  RUS-23), recitals  38 and 68; Regulation  812/2008, ( Exhibit  RUS-16), recital  17; 
Regulation  1269/2012, ( Exhibit  RUS-22), recital  21; Regulation  1256/2008, ( Exhibit  RUS-18), recital  111; 
Regulation  907/2007, ( Exhibit  RUS-32), recital  33; Regulation  2015/110, ( Exhibit  RUS-21), recital  69; and 
Regulation  1251/2009, (Exhibit  RUS-33), recital  17. 
103 Regulation  1050/2006, ( Exhibit RUS-31), recital  53; Regulation  954/2006, ( Exhibit  RUS-34), 
recital  119; Regulation  812/2008, ( Exhibit  RUS-16), recital  17; Regulation  1269/2012, (Exhibit  RUS-22), 
recital  21; Regulation  1911/2006, ( Exhibit  RUS-20), recitals  27 and 58; Regulation  238/2008, 
(Exhibit  RUS-35), recital  21; Regulation  1251/2009, ( Exhibit  RUS-33), recital  17; Regulation  236/2008, 
(Exhibit  RUS-17), recital  18; Regulation  661/2008, ( Exhibit  RUS-15), recital  34; Regulation  907/2007, 
(Exhibit  RUS-32), recital  33; Regulation  1256/2008, ( Exhibit  RUS-18), recital  111; and Regulation  2015/110, 
(Exhibit  RUS-21), recital  69. 
104 Regulation  1194/2013, ( Exhibit  RUS-23), recital  28. See also Regulation  490/2013, 
(Exhibit  RUS-105), recitals  44 and 64.  
105 We note that, in some instances, the European  Commission  decided not to reject the domestic input 
prices of the relevant input (electricity) because it considered that such prices were "in line with international 
market prices, when compared to other countries" or "similar" to out -of-country p rices. See, 
e.g. Regulation  1911/2006, ( Exhibit  RUS-20), recital  26; Regulation  954/2006, ( Exhibit  RUS-34), recital  94; 
Regulation  1050/2006, ( Exhibit  RUS-31), recital  52; Regulation  661/2008, ( Exhibit  RUS-15), recital  33; and 
Regulation  907/2007, ( Exhibit  RUS-32), recital  32. 
106 Regulation  1891/2005, ( Exhibit  RUS-19), recitals  31-32; Regulation  1050/2006, ( Exhibit  RUS-31), 
recitals  54-55; Regulation  954/2006, ( Exhibit  RUS-34), recitals  96, 98, 120, and 125; Regulation  812/2008, 
(Exhibit  RUS-16), recital  17; Regulation  1269/2012, ( Exhibit  RUS-22), recital  21; Regulation  1911/2006, 
(Exhibit  RUS-20), recital  28; Regulation  238/2008, (Exhibit  RUS-35), recital  21; Regulation  1251/2009, 
(Exhibit  RUS-33), recital  17; Regulation  236/2008, ( Exhibit  RUS-17), recital  19; Regulation  661/2008, 
(Exhibit  RUS-15), recitals  32 and 35; Regulation  1256/2008, ( Exhibit  RUS-18), recital  111; 
 WT/DS494/R  
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  rejecting the recorded input prices is that they we re State -regulated and " far below market prices 
paid in unregulated markets ".107 
7.41.   Subsequently, the European  Commission  "adjusted" the costs of the producer /exporter under 
investigation on the basis of out -of-country input price information, pursuant to the second 
subparagraph of  Article  2(5) of the Basic AD Regulation. In almost the t otality of determinations, 
the European  Commission  used the price of the relevant input when exported from the country of 
origin to another destination. In two instances – the anti -dumping investigation on imports of 
biodiesel from Argentina and Indonesia – the European  Commission  implemented the adjustment 
by replacing the price of the main raw material as recorded by the investigated companies with the 
average reference price of the raw material, published by, respectively, the Argentine Ministry of 
Agriculture108 and the Indonesian Authorities.109 In one case – the anti-dumping investigation on 
imports of certain seamless pipes and tubes, of iron or steel originating in , inter alia , Ukraine – the 
European  Commission  based the adjustment on an average of the prices observed during the period 
of investigation in a third country.110 
7.42.   We also observe that the European  Commission  made certain adjustments to the 
out-of-country input price information  for export -related and transportation expense s. Specifically, 
the determinations show that adjustments were made for transport costs111, customs export tax112, 
value added tax113, excise duty114, local distribution costs115, sea freight116 and fobbing costs.117 
7.43.   Moreover, as asserted by Russia, the anti -dumping determinations do not show that the 
European  Commission  took steps  to ensure that the resulting cost of production, based on adjusted 
out-of-country input price information, represent the cost of production of the produ ct under 
consideration in the country of origin . While the majority of the anti -dumping determinations indicate 
that normal value was constructed by adding to the manufacturing costs, adjusted where necessary, 
a reasonable amount for selling, general and a dministrative expenses and profit118, they do not 
explain whether the adjusted out -of-country input price information was considered  to represent  the 
 
Regulation  2015/110, ( Exhibit  RUS-21), recital  69; Regulation  1194/2013, ( Exhibit  RUS-23), recitals  38 
and 66; and Regulation  2019/576, ( Exhibit  RUS-167), recitals  52 and 58.  
107 See, e.g. Regulation  812/2008, (Exhibit  RUS-16), recital  17; Regulation  1269/2012, 
(Exhibit  RUS-22), recital  21; Regulation  1911/2006, (Exhibit  RUS-20), recitals  27 and 58; 
Regulation  238/2008, (Exhibit  RUS-35), recital  17; Regulation  1251/2009, (Exhibit  RUS-33), recital  17; 
Regulation  236/2008, (Exhibit  RUS-17), recital  18; Regulation  661/2008, (Exhibit  RUS-15), recital  34; 
Regulation  237/2008, (Exhibit  RUS-24), recital  19; Regulation  907/2007, (Exhibit  RUS-32), recital  33; 
Regulation  1256/2008, (Exhibit  RUS-18), recital  111; and Regulation  2015/110, (Exhibit  RUS-21), recital  69. 
108 Regulation  1194/2013, (Exhibit  RUS-23), recital  40. 
109 Regulation  1194/2013, (Exhibit  RUS-23), recital  70. 
110 Regulati on 954/2006, (Exhibit  RUS-34), recital  127.  
111 Regulation  1891/2005, ( Exhibit  RUS-19), recitals  31 and 33; Regulation  1050/2006, 
(Exhibit  RUS-31), recital  54; Regulation  954/2006, ( Exhibit  RUS-34), recital  97; Regulation  1911/2006, 
(Exhibit  RUS-20), recita l 58; Regulation  238/2008, (Exhibit  RUS-35), recital  22; Regulation  1251/2009, 
(Exhibit  RUS-33), recital  18; Regulation  236/2008, ( Exhibit  RUS-17), recital  19; Regulation  661/2008, 
(Exhibit  RUS-15), recital  35; Regulation  237/2008, ( Exhibit  RUS-24), recita l 26; Regulation  907/2007, 
(Exhibit  RUS-32), recital  34; and Regulation  240/2008, ( Exhibit  RUS-28), recital  46. 
112 Regulation  1891/2005, ( Exhibit  RUS-19), recital  31. 
113 Regulation  1891/2005, ( Exhibit  RUS-19), recital  31; Regulation  1050/2006, ( Exhibit  RUS-31), 
recital  54.  
114 Regulation  1891/2005, ( Exhibit  RUS-19), recital  31; Regulation  1050/2006, ( Exhibit  RUS-31), 
recital  54; and Regulation  954/2006, ( Exhibit  RUS-34), recital  97. 
115 Regulation  812/2008, ( Exhibit  RUS-16), recital  17; Regulation  238/2008, (Exh ibit RUS-35), 
recital  22; Regulation  1251/2009, ( Exhibit  RUS-33), recital  18; Regulation  236/2008, ( Exhibit  RUS-17), 
recital  19; Regulation  1256/2008, ( Exhibit  RUS-18), recital  111; Regulation  2015/110, ( Exhibit  RUS-21), 
recital  69; and Regulation  1911/200 6, (Exhibit  RUS-20), recital  28. 
116 Regulation  1911/2006, ( Exhibit  RUS-20), recital  28. In the expiry review on imports of solutions of 
urea and ammonium nitrate originating in, inter alia , Algeria, an adjustment was also made for liquefaction 
costs because  the price of the relevant input (natural gas) was adjusted on the basis on the average price of 
liquefied natural gas . (Regulation  1911/2006, ( Exhibit  RUS-20), recitals  28-29). 
117 Regulation  1194/2013, ( Exhibit  RUS-23), recital  40. 
118 See, e.g. Regulation  1891/2005, ( Exhibit  RUS-19), recital  21; Regulation  1050/2006, 
(Exhibit  RUS-31), recital  50; Regulation  954/2006, ( Exhibit  RUS-34), recital  45; Regulation  812/2008, 
(Exhibit  RUS-16), recital  15; Regulation  1269/2012, ( Exhibit  RUS-22), recital  19; Regulation  1911/2006, 
(Exhibit  RUS-20), recitals  24 and 29; Regulation  238/2008, (Exhibit  RUS-35), recital  19; 
Regulation  1251/2009, ( Exhibit  RUS-33), recital  15; Regulation  236/2008, ( Exhibit  RUS-17), recital  46; 
Regulation  661/2008, ( Exhibit  RUS-15), r ecital  36; and Regulation  237/2008, ( Exhibit  RUS-24), recital  29. WT/DS494/R  
BCI deleted, as indicated [[***]] 
- 32 - 
 
  cost of production in the country of origin. The anti -dumping determinations provide no reasoned 
and adequate explanation of whether the export -related and transportation adjustments made by 
the European  Commission  were adequate to adapt the out -of-country information to represent  the 
cost of production in the country of origin.  Our review of the determin ations , rather,  suggests that, 
in each case, the European  Commission  used out -of-country input prices " in the absence of 
undistorted" input prices relating to the domestic market of the country of origin .119 
7.44.   While, as pointed out by the European Union, the various anti-dumping determinations 
concern different underlying facts120, we consider that such differences  do not detract from the fact 
that the substance of the Cost Adjustment Methodology, i.e. the rejection  of the input costs reflected 
in the records o f the producer or exporter under investigation in the specific set of circumstances 
described by Russia, and the subsequent use of out -of-country input price data in calculating the 
costs of production in the above -mentioned terms, was replicated in each determination.  
7.45.   The following table presents the main conclusions of the European  Commission  in each 
anti-dumping determination : 
Regulation  No.  European  Commission 's findings concerning the rejection of recorded input prices 
and the adjustments to th e costs of production  
1891/2005   
14 November 
2005 
 
Potassium 
chloride 
originating  in 
Russia  Recitals 30 and 31 :  
"As concerns gas supplies, it was established … that the domestic price of gas  paid by the 
two Russian Producers was around one  fifth of the export price from Russia.  … Moreover, 
the price of gas paid by the  two Russian Producers was significantly lower than the  gas 
price paid by the Canadian producers.  
 
[I]t was therefore considered that the prices charged by the regional Russian gas provider 
to the Russian potash producers … could not reasonably reflect the costs associated with 
the production of gas when compared to the exported price of gas from Russia an d the 
price of a Canadian gas provider to a major industrial user in Canada. In accordance, 
therefore, with  Article  2(5) of the basic Regulation, an adjustment to the cost of production 
for each of the applicants was made. In the absence of any other reaso nable basis, such 
an adjustment was made using information concerning the price of gas for export, net of 
transport costs, customs export tax, value added tax and excise duty ".121 
 
1050/2006  
11 July 2006  
 
Potassium 
chloride 
originating  in 
Russia  
 Recitals 53 and 54 :  
"[I]t was established … that the domestic price of gas paid by the two  Russian producers 
was around one fifth of the export price  of natural gas from Russia. … [A]ll available data 
strongly suggest  that the gas prices charged to domestic customers were  made at regulated 
prices far from cost recovery levels.  Moreover, the investigation showed that the price of 
gas paid by the two Russian producers was significantly lower  than the gas price paid by 
the two Canadian producers.  
 
[I]t was therefore considered that the prices charged by the regional Russian gas provider 
to the Russian potash producers … could not reasonably reflect the costs associated with 
the production of gas when compared to the exported price of gas from Russia and the 
price of a Canadian gas provider to major industrial users in Canada . Therefore, in 
accordance  with Article  2(5) of the basic Regulation, an adjustment  to the cost of 
production for each of the Russian  companies was made. In the absence of any other 
reasonable  basis, such an adjustment was made using information  concerning the price of 
gas for export, net of  transport costs, value added tax and excise duty . This adjustment 
was made in accordance with the methodology  used in the previous review investiga tion 
concluded  in November 2005 by Regulation  (EC) No 1891/2005 ".122 
 
954/2006  
27 June 2006  
 
Certain seamless 
pipes and tubes, 
of iron or  Russia  
Recitals 95 -97:  
"It was established … that the domestic price of gas paid by  the two Russian producers was 
much lower than the  average export prices from Russia to both Western and  Eastern parts 
of Europe . … Moreover, the price of gas paid by the two Russian producers was significantly 
lower than the gas price paid by the Romanian and Community producers.  
 
 
119 See, e.g. Regulation  907/2007, (Exhibit  RUS-32), recital  34; Regulation  1256/2008, 
(Exhibit  RUS-18), recital  111; and Regulation  2015/110, (Exhibit  RUS-21), recital  69. 
120 European Union's opening statement at the second meeting of the Panel, para.  15. 
121 Regulation  1891/2005, (Exhibit  RUS-19), recitals  30-31. 
122 Regulation  1050/2006, (Exhibit  RUS-31), recitals  53-54. WT/DS494/R  
BCI deleted, as indicated  [[***]] 
- 33 - 
 
  Regulation  No.  European  Commission 's findings concerning the rejection of recorded input prices 
and the adjustments to th e costs of production  
steel originating  
in Russia and 
Ukraine  [I]t was considered that the gas prices paid by the two Russian [certain seamless pipes and 
tubes ] producers … could not reasonably reflect the costs associated with the production 
and distribution of gas.  
 
Therefore, as provided for in  Article  2(5) of the basic  Regulation, the gas costs of the two 
Russian exporting  producers were adjusted to reflect market  prices for gas  during the 
[investigation period ], based on the price of gas for export to  Western Europe, net of 
transport costs and excise duty ".123 
 
Ukraine  
Recitals 119 -127: 
"With regard to the manufacturing costs, and in particular  energy costs, it was found during 
the investigation that  energy prices paid by the three groups of companies  were regulated 
by the State and significantly lower than  international prices.   
 
The prices charged by the Ukrainian State -owned and/or  State -regulated suppliers of  
electricity to the three groups  of exporting producers were compared to prices in  Romania 
as well as to prices in the Community … In all cases,  these prices were found to be 
considerably lower than  the prices in Romania and in the Community, and it was concluded 
that the electricity prices paid by the  Ukrainian exporters did not reasonably reflect the  
actual production and sale costs of the electricity  purchased.  
 
The same approach was followed as regards gas prices. A  comparison showed that gas 
prices cha rged to Ukrainian  exporters by their State -owned and/or State -regulated  
suppliers were around half the prices in Romania and  also considerably lower than average 
prices charged in  the Community for gas to the same general category of  customers.  
 
Moreover, the prices paid by Ukrainian exporting  producers were compared to the average 
export price  from Russia to Western and Eastern Europe, … as well as to average gas prices 
in North America … In both cases they were  found considerably lower.  
 
Given the above, it  was concluded that the gas prices  paid by the Ukrainian exporting 
producers  … did not reasonably reflect the costs associated  with production and sale of the 
gas purchased.   
 
Therefore, as provided for in  Article  2(5) of the basic Regulation, the  electricity and gas 
costs of the Ukrainian exporting producers were adjusted to reasonably reflect the costs 
associated with the production and sale of electricity and gas …. The adjustment was based 
on an average of the prices observed during the [period  of investigation ] in Romania, a 
market -economy country which also imports gas from Russia, and is roughly the same 
distance  from the Russian gas fields. " 124 
 
812/2008  
11 August 2008  
 
Certain seamless 
pipes and tubes 
of iron or steel 
originating  in 
Russia  Recitals 16 and 17 :  
"[I]t was examined whether the gas prices paid by the exporting  producers reasonably 
reflected the costs associated with  the production and distribution of gas .  
 
It was found that the domestic gas price paid by the exporting producers was around one 
fourth of the  export price of natural gas from Russia  … [A]ll available data indicates that 
domestic gas prices in Russia are regulated prices, which are far below market prices paid 
in unregulated markets for natural  gas. Therefore, since gas costs were not reasonably 
reflected in the exporting producers ' records as provided for in  Article  2(5) of the basic 
Regulation, they had to be adjusted accordingly . In the absence of any sufficiently  
representative, undistorted gas prices relating to the  Russian domestic market, it was 
considered appropriate  to base the adjustment, in accordance with  Article  2(5), on the basis 
of information from other representative  markets.  The adjusted price was bas ed on the 
average  price of Russian gas when sold for export at the  German/Czech border (Waidhaus), 
adjusted for local  distribution costs".125  
 
1269/2012  
21 December 
2012 
 Recitals 20 a nd 21 : 
"[I]t was examined whether the gas prices paid by the exporting  producers reasonably 
reflected the costs associated with  the production and distribution of gas.  
 
 
123 Regulation  954/2006, (Exhibit  RUS-34), recitals  95-97. 
124 Regulation  954/20 06, (Exhibit  RUS-34), recitals  119-127.  
125 Regulation  812/2008, (Exhibit  RUS-16), recitals  16-17. WT/DS494/R  
BCI deleted, as indicated [[***]] 
- 34 - 
 
  Regulation  No.  European  Commission 's findings concerning the rejection of recorded input prices 
and the adjustments to th e costs of production  
Certain seamless 
steel pipes, of 
iron or steel, 
originating  in 
Russia  It was found that the domestic gas price paid by the  exporting producers was around one 
third of the  export price of natural gas from Russia  … [A]ll available data indicates that 
domestic gas prices in Russia are regulated prices, which are far below market prices paid 
in unregulated markets for natural gas. Therefore, since gas co sts were not reasonably 
reflected in the exporting producers' records as provided for in  Article  2(5) of the basic 
Regulation, they had to be adjusted accordingly . In the absence of any sufficiently  
representative, undistorted gas prices relating to the  Russian domestic market, it was 
considered appropriate  to base the adjustment, in accordance with  Article  2(5), on the basis 
of information from other representative  markets.  The adjusted price was based on the 
average  price of Russian gas when sold for expo rt at the  German/Czech border (Waidhaus), 
adjusted for local  distribution costs ".126 
 
1911/2006  
19 December 
2006 
 
Solutions of urea 
and ammonium 
nitrate  
originating in  
Algeria and 
Russia  Algeria  
Recitals 25 and 27 -29: 
"In accordance with  Article  2(5) of the basic Regulation,  it was examined whether the costs 
associated with the  production and sales of the product under consideration  were 
reasonably reflected in the records of the parties  concerned . 
 
[I]t was established … that the price paid  by the Algerian producer was less than one fifth 
of the  export price of natural gas from Algeria  … [A]ll available data indicates that domestic 
gas prices in  Algeria were regulated prices, which are far below market prices paid for 
natural gas, for example in the  USA, Canada, Japan and the EU  … Moreover, the price of 
gas paid by the companies  concerned was significantly lower than the gas price  paid by the 
Community producers.  
 
In view of the above, it was considered that the gas prices paid in Algeria … could not  
reasonably reflect the costs associated with the production and distribution of gas . 
Therefore, as  provided for in  Article  2(5) of the basic Regulation, the  gas costs borne by 
one cooperating exporting producer  … were adjusted on the basis of information from other 
representative markets. The adjusted price was  based on the average price during the RIP 
of Algerian  liquefied natural gas (LNG) when sold for export at the  French border, net of 
sea freight and liquefaction costs  … 
 
The manufacturing costs … were therefore recalculated in order  to take account of the 
adjusted gas prices, using equally  the prices of gas when sold at the French border, net of  
sea freight and liquefaction costs".127 
 
Russia  
Recital 58 : 
"It was examined wh ether the costs associated with the production and sales of the product 
under consideration  were reasonably reflected in the records of the parties  concerned. As 
regards gas costs, it was found that the  domestic gas price paid by the Russian producers 
was around one fifth of the export price of natural gas from  Russia  … [A]ll available data 
indicates that  domestic gas prices in Russia were regulated prices,  which are far below 
market prices paid in unregulated markets for natural gas . Therefore, as provided for in  
Article  2(5) of the basic Regulation, the gas costs  borne by the Russian producers were 
adjusted on the  basis of information from other representative markets . The adjusted price 
was based on the average price of Russian gas when sold for e xport at the German/Czech  
border (Waidhaus), net of transport costs ".128 
 
238/2008  
10 March 2008  
 
Solutions of urea 
and ammonium 
nitrate originating 
in Russia  Recitals 20 -22: 
"In accordance with  Article  2(5) of the  basic Regulation, it was examined whether the costs 
associated  with the production and sales of the product  concerned were reasonably 
reflected in the records of  the applicant.  
 
It was established … that the prices [of gas ] paid by the applicant were  abnormally low  … 
amount [ing] to one for th and one fifth of the export price of natural  gas from Russia  … [A]ll 
available data indicates  that domestic gas prices in Russia were regulated prices, which are 
far below market prices paid in unregulated markets for natural gas . Since gas costs were 
not reasonably reflected in the applicant's records, they had to be adjusted accordingly  … 
 
 
126 Regulation  1269/2012, (Exhibit  RUS-22), recitals  20-21. 
127 Regulation  1911/2006, (Exhibit  RUS-20), recitals  25 and 27 -29. 
128 Regulation  1911/2006, (Exhibit  RUS-20), recital  58. WT/DS494/R  
BCI deleted, as indicated  [[***]] 
- 35 - 
 
  Regulation  No.  European  Commission 's findings concerning the rejection of recorded input prices 
and the adjustments to th e costs of production  
The adjusted price was based on the average price of  Russian gas when sold for export at 
the German/Czech  border (Waidhaus), net of transport costs and adjusted to  reflect local 
distribution costs ".129 
 
1251/2009  
18 December 
2009 
 
Solutions of urea 
and ammonium 
nitrate originating  
in Russia  Recitals 16 -18:  
"In accordance with  Article  2(5) of the  basic Regulation, it was examined whether the costs  
associated with the production and sales of the product  concerned were reasonably 
reflected in the records of the  applicant.  
It was established that the domestic gas prices paid by  the applicant were abnormally low  
… amount [ing] to between one fourth and o ne fifth of the export price of natural gas from 
Russia  … [A]ll available data indicates that domestic gas  prices in Russia were regulated 
prices, which are far below market prices paid in unregulated markets for natural gas . Since 
gas costs were not reasonably reflected in the applicant's records, they had to be adjusted 
accordingly . In the absence of any undistorted  gas prices relating to the Russian domestic 
market, and in  accordance with  Article  2(5) of the basic Regulation, gas  prices had to be 
established on 'any other reasonable  basis, including information from other representative  
markets '.  
 
The adjusted price was based on the average price of  Russian gas when sold for export at 
the German/Czech  border (Waidhaus), net of transport costs and ad justed to  reflect local 
distribution cost ".130 
 
236/2008  
10 March 2008  
 
Ammonium 
nitrate  originating 
in Russia  Recitals 17 -19: 
"In accordance with  Article  2(5) of the basic Regulation, it  was examined whether the costs 
associated with the  production and sales of the product under consideration  were 
reasonably reflected in the records of the parties  concerned.  
 
It was established … that the prices paid by the applicant were  abnormally low  … 
amount [ing] to one fifth of the export price of nat ural gas from Russia and were also 
significantly lower than the gas price paid  by the Community producers  … [A]ll available  
data indicate that domestic gas prices in Russia were  regulated prices which are far below 
market prices paid in unregulated markets  for natural gas.  
 
Since gas costs were not reasonably reflected in the applicant 's records,  they had to be 
adjusted accordingly . In the absence of any undistorted gas prices relating to  the Russian 
domestic market, and in accordance with  Article  2(5) of the basic Regulation, gas prices 
had to  be established on 'any other reasonable basis, including  information from other 
representative markets '. The adjusted price was based on the average price of  Russian gas 
when sold for export at the German/Czech  borde r (Waidhaus), net of transport costs and 
adjusted to  reflect local distribution costs ".131 
 
661/2008  
8 July 2008  
 
AN originating in 
Russia  Recitals 32, 34 , and 35 : 
"[I]t had … been examined whether the costs associated with the  production and sale of 
the product under consideration  were reasonably reflected in the records of the parties  
concerned.  
 
[I]t was established … that the price paid  by EuroChem was around one -fifth of the export 
price of  natural gas from Russia  … [A]ll available data  indicates that domestic gas prices in 
Russia were  regulated prices, which are far below market prices paid for natural gas, for 
example in the USA, Canada,  Japan and the EU  …  
 
In view of the above, it was considered that the gas prices paid by NAK Azot … could not 
be used for the purposes of determining the cost of production of the product concerned 
pursuant to the first sentence of  Article  2(5) of the basic Regulation.  Therefore, as provided 
for in  Article  2(5) of the basic Regulation, [the costs  for gas supplies  of NAK Azot] had to 
be adjusted to reflect the costs associated with the  production and sale of the like product  
… [T]he adjusted price was based on  the average price of Russian gas when sold for export 
at the German/Czech border, net of transport costs".132 
 
237/2008  
10 March 2008  Recital s 18, 19, and 26 : 
 
129 Regulation  238/2008, (Exhibit  RUS-35), recitals  20-22. 
130 Regulation  1251/2009, (Exhibit  RUS-33), recitals  16-18. 
131 Regulation  236/2008, (Exhibit  RUS-17), recitals  17-19. 
132 Regulation  661/2008, (Exhibit  RUS-15), recitals  32 and 34 -35. WT/DS494/R  
BCI deleted, as indicated [[***]] 
- 36 - 
 
  Regulation  No.  European  Commission 's findings concerning the rejection of recorded input prices 
and the adjustments to th e costs of production  
 
AN originating in 
Ukraine  "When the applicants cost of production was assessed,  it was found that gas costs were  
not reasonably reflected in  the applicants records  …  
 
As regards gas costs, it was found that Ukraine is  importing the majority of the gas 
consumed in the  production of [ammonium nitrate ] from Russia.  … [A]ll available data 
indicate that Ukraine imports natural gas  from Russia at prices which are significantly below 
market prices pai d in unregulated markets for natural gas . The investigation revealed that 
the price of natural gas from Russia when exported to the Community was approximately 
twice as high as the domestic gas price in the Ukraine. Therefore, as provided for in  
Article  2(5) of the basic Regulation, the gas costs borne by the applicant were adjusted on 
the basis of information from other representative markets.  
 
The adjusted gas price was based on the average price of  Russian gas when sold for export 
at the German/Czech  border (Waidhaus), net of transport costs ".133 
 
907/2007  
23 July 2007  
 
Urea originating 
in Russia  Recital s 31, 33 , and 34 : 
"It was … examined, pursuant to  Article  2(5) of the basic Regulation, whether the costs  
associated with the production and sales of the product  under consideration were 
reasonably reflected in the  records of the parties concerned.  
 
[I]t was established … that the prices paid  by the Russian producers were abnormally low  
… amount [ing] to one fifth of the export  price of natural gas from Russia and were also 
significantly  lower than the gas price paid by the Community  producers  … [A]ll available 
data indicate that  domestic gas prices in Russia were regulated prices,  which are far below 
market prices paid in unregulated markets for natural gas . Since gas costs were not 
reasonably reflected in the four companies' records, they had to be adjusted pursuant to  
Article  2(5) of the basic Regulation.  
 
In the absence of any undistorted gas prices relating to  the Russian domestic market, and 
in accordance with  Article  2(5) of the basic Regulation, gas prices had to  be established on 
'any other reasonable basis, including  information from other representative markets '. The 
adjusted price was based on the average price of  Russian gas when sold f or export at the 
German/Czech  border (Waidhaus), net of transport costs ."134 
 
240/2008  
17 March 2008  
 
Urea originating 
in Ukraine  Recital 46 : 
"[I]t was found that Ukraine is  importing the majority of the gas consumed in the  production 
of urea from Russia.  … [A]ll available data indicates that Ukraine imports natural gas  from 
Russia at prices which are significantly below the market prices paid in unregulated markets 
for natural  gas … [T]he price of natural  gas from Russia whe n exported to the Community 
was approximately twice as high as the domestic gas price in the Ukraine. Therefore, as 
provided for in  Article  2(5) of the basic Regulation, the gas costs borne by the applicant 
were adjusted on the basis of information from ot her representative markets.  The adjusted 
price was based on  the average price of Russian gas when sold for export at  the 
German/Czech border (Waidhaus), net of transport  costs."135 
 
1256/2008  
16 December 
2008 
 
Certain welded 
tubes and pipes 
of iron or  Recitals 110 -111: 
"[I]t was examined  whether the gas prices paid by the exporting producers  reasonably 
reflected the costs associated with the production  and distribution of gas.  
 
It was found that the domestic gas price paid by the  exporting producers was around one 
fourth of the export  price of natural gas from Russia.  … [A]ll available  data indicates that 
domestic gas prices in Russia are  regulated prices, which are far below market prices paid 
in unregulated mark ets for natural gas . Therefore, since gas costs were not reasonably 
reflected in the exporting producers' records as provided for in  Article  2(5) of the basic 
 
133 Regulation  237/2008, (Exhibit  RUS-24), recitals  18-19 and 26.  
134 Regulation  907/2007, (Exhibit  RUS-32), recitals  31 and 33 -34. 
135 Regulation  240/2008, (Exhibit  RUS-28), recital  46. The European  Commission  considered the 
application of the Cost Adjustment Methodology to exporting producers from Croatia and L ibya, in the light of 
"significant doubts as to whether the costs for gas, which [was] the major input to produce urea, were 
reasonably reflected in the records of the exp orting producer". The European  Commission  found that, in both 
cases, gas was sourced under particular conditions, determined by the fact that both the exporting producer 
and the gas supplier were majority -owned by, respectively, the Croatian and L ibyan sta tes, and that gas prices 
were "abnormally low". However, given that dumping was found to exist without the adjustments, and in the 
light of its findings on the likelihood of recurrence of injury, the European  Commission  considered that the 
adjustments, alt hough warranted, were not necessary. (Regulation  240/2008, (Exhibit  RUS-28), recitals  26 
and 41).  WT/DS494/R  
BCI deleted, as indicated  [[***]] 
- 37 - 
 
  Regulation  No.  European  Commission 's findings concerning the rejection of recorded input prices 
and the adjustments to th e costs of production  
non-alloy stee l 
originating in 
Russia  Regulation, they had to be adjusted accordingly . In the  absence of any sufficiently 
representativ e, undistorted gas  prices relating to the Russian domestic market, it was  
considered appropriate to base the adjustment, in accordance  with Article  2(5), on the basis 
of information from  other representative markets.  The adjusted price was based  on the 
average price of Russian gas when sold for export at  the German/Czech border (Waidhaus), 
adjusted for local  distribution costs ".136 
 
2015/110  
26 January 2015  
 
Certain welded 
tubes and pipes 
of iron or  
non-alloy steel 
originating in 
Russia  Recitals 68 and 69 : 
"[I]t was examined whether the  gas prices paid by the … exporting producer reasonably 
reflected the costs associated with the  production and distribution of gas.  
 
It was found that the domestic gas price paid by the exporting producers was around 30% 
of the export price of  natural gas from Russia.  … [A]ll available data indicated that domestic 
gas prices in Russia are regulated prices, which are far below market prices paid in 
unregulated export markets for Russian natural gas . Since gas costs were not reasonably 
reflected in the exporting producer's records as provided for in  Article  2(5) of the basic 
Regulation, they had to be adjusted accordingly . In the absence of sufficiently 
representative, undistorted gas  prices relating to the Russian domestic ma rket, it was 
considered appropriate to base the adjustment, in  accordance with  Article  2(5) of the basic 
Regulation, on the basis of information from other representative  markets.  The adjusted 
price was based on the average price of Russian gas when sold f or export at the  
German/Czech border (Waidhaus), adjusted for local distribution costs ".137 
1194/2013  
19 November 
2013 
 
Biodiesel 
originating in 
Argentina and 
Indonesia  Argentina  
Recitals 38 -40: 
"[T]he domestic prices of the main raw  material used by biodiesel producers in Argentina 
were found to be artificially lower than the international prices  due to the  distortion created 
by the Argentine export tax  system and, consequently, the costs of the main raw  material 
were not reasonably reflected in the r ecords  kept by the Argentinean producers under 
investigation  in the meaning of  Article  2(5) of the basic Regulation  …  
The Commission has therefore decided to … disregard the actual costs of soya beans (the 
main raw material purchased and used in the produ ction of biodiesel) as recorded by the 
companies concerned in their accounts and to replace them with the price at which those 
companies would have purchased the soya beans in the absence of such a distortion . 
In order to establish the cost at which compan ies concerned would have purchased the 
soya beans in the  absence of such a distortion, the Commission took the  average of the 
reference prices of soya beans published  by the Argentine Ministry of Agriculture for export 
FOB Argentina during the [period of i nvestigation ]".138 
 
Indonesia  
Recitals 66 , 67, and 70 : 
"[T]he [Differential Export Tax ] system in Indonesia distorts the costs of production  of 
biodiesel producers in that country and … therefore  the costs associated with the production 
and sale of the  product concerned are not reasonably reflected in the  records kept by the 
Indonesian producers under investigation.  
The Commission has therefore decided to … disregard the actual costs of crude palm oil 
(CPO), the main raw material purchased and used in th e production of biodiesel, as 
recorded by the companies concerned in their accounts and to replace them with the price 
at which those companies would have purchased the CPO in the absence of such a 
distortion.  
The investigation has confirmed that the price  level for  the domestically traded CPO is 
significantly depressed as  compared to the 'international ' reference price, the  difference 
being very close to the export tax applied to  CPO … 
For the reasons mentioned above, … the cost of the  main raw material (C PO) recorded by 
the companies  concerned has, pursuant to  Article  2(5) of the basic  Regulation, been 
replaced by the reference export price  … for CPO published by the Indonesian Authorities  
which is in turn based on published international  prices (Rotterdam, Malaysia and 
Indonesia) ".139 
2019/576  
10 April 2019  Recitals 49, 52 , 53, and 59 : 
 
136 Regulation  1256/2008, (Exhibit  RUS-18), recitals  110-111. 
137 Regulation  2015/110, (Exhibit  RUS-21), recitals  68-69. 
138 Regulation  1194/2013, (Exhibit  RUS-23), recitals  38-40. 
139 Regulation  1194/2013, (Exhibit  RUS-23), recitals  66, 67, and 70. (fn omitted)  WT/DS494/R  
BCI deleted, as indicated [[***]] 
- 38 - 
 
  Regulation  No.  European  Commission 's findings concerning the rejection of recorded input prices 
and the adjustments to th e costs of production  
 
Mixtures of urea 
and ammonium 
nitrate originating 
in Russia  "Natural gas is the main raw material in the manufacturing process of [mixtures of urea 
and ammonium nitrate ] and represents a significant  proportion, more than 50%, of the 
total cost of production. Following the claim by the complainant and the  findings of  previous 
investigations concerning fertilizers originating in Russia, the Commission examined 
whether  the costs of natural gas associated with the production of the product concerned 
were reasonably reflected in the  records of the Russian exporting produc ers, in accordance 
with Article  2(5) of the basic Regulation.  
The investigation found that natural gas prices in Russia are regulated by the State via  
federal laws and are based  on policy objectives. Natural gas prices in Russia do not reflect 
normal marke t conditions. Under normal market  conditions, prices are mostly set by 
production costs and profit expectations. In contrast, in Russia prices set by  the State are 
directly applicable to Gazprom, the Russian state -owned gas provider. Gazprom is the 
biggest  gas provider in the country with a market share above 50% and therefore acts as 
price-setter. The investigation  confirmed this price -setting behaviour, where all other gas 
providers sell at similarly low prices. In addition,  Gazprom is the owner of the pi pelines 
through which all gas, including the one supplied by the independent  producers, is 
transported at tariffs which are also regulated.  
[A]s in previous investigations concerning fertilizers originating in  Russia, [the 
European  Commission ] adjusted the  Russian cost of natural gas by replacing the distorted 
Russian domestic price with an  undistorted international benchmark price ( 'gas 
adjustment '). As a benchmark price, the Commission used the so -called  Waidhaus price, 
which is the price of exported Russian gas at the German/Czech border. The price was  duly 
adjusted to ex  works -level of the Russian producers ".140 
7.46.   As mentioned above, t he European Union questions the probative significance of the 
anti-dumping determinations put forward by Russi a, arguing that the determinations are instances 
of application of the first and the second subparagraph s of Article  2(5) of the Basic AD Regulation .141 
In the European  Union's  view, these determinations do not demonstrate the existence and precise 
content of an alleged methodology142, because a n "as applied" measure is one in which the various 
provisions are applied to the extensive and complex facts of a particular case. According to the 
European Union, the  anti-dumping determinations are merely particular instances in which the 
investigating aut hority has taken "a particular route" through the complex decision tree set out in 
the legislation and reached a particular determination.143 
7.47.   We disagree that the anti -dumping determination s cited by Russia are not relevant to 
establish the precise content of the Cost Adjustment Methodology . In our view, the 
anti-dumping  determinations  demonstrate the specific approach of  the European  Commission  and 
the systematic application of  the first and second subparagraph s of Article  2(5) of the Basic AD 
Regulation , when confronted with the specific set of circumstances described by Russia, i.e. evidence 
that the domestic prices for the relevant input are significantly low when compared to prices in other 
markets , regulated by the government  of the country of origin , or affected by other government 
measures . We consider that this evidence reflects the essential features of the Cost Adjustment 
Methodology , in the light of the description and explanations given by Russia.  
Attribution to the European Union  
7.48.   With respect to whether the alleged measure is attributable to the European Union , it is 
undisputed that the acts claimed to be part of such measure are carried out by the 
European  Commission , which is an organ of the European Union . Hence, the alleged Cost Adjustment 
Methodology is attributable to the European Union . 
 
140 Regulation  2019/576, ( Exhibit  RUS-167), recitals  49, 52, 53, and 59 (fn omitted). The definitive 
determination confirmed the cost adjustment. The European  Commission  considered that there were "certain 
undisputable facts … to conclude that the natural gas market in Russia [was]  distorted".  
(Regulation  2019/1688, ( Exhibit  RUS-166), recitals  33-41).  
141 European Union's first written submission, para.  101. 
142 European Union's second written submission, para.  37.  
143 European Union's second written submission, para.  35.  WT/DS494/R  
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General and prospective application  
7.49.   We now turn to the issue of whether the Cost Adjustment Methodology constitutes a measure 
of "general and prospective application ". As already noted, a meas ure has "general application" to 
the extent that it affects an unidentified number of economic operators144 instead of economic 
operator s specified in that rule or norm.145 A measure has "prospective application" to the extent 
that it applies in the future.146 
7.50.   The parties disagree on the legal standard the Panel should apply to evaluate the purported 
"general and prospective application" of the Cost Adjustment Methodology. The European Union 
asserts that the Panel should apply the legal standard articulated by  the Appellate Body in 
US – Zeroing (EC) .147 Hence, according to the European Union, in order to prove that the Cost 
Adjustment Methodology has " general and prospective application ", Russia must provide evidence 
that goes beyond simply showing a "string of cases ".148 In this connection, the European Union 
suggests that Russia's claim  must fail as Russia has not been able to identify "any law, regulation, 
administrative guidance, or anything of the like that would require th e European  Commission  to 
make a particular assessment [in the terms of the Cost Adjustment Methodology ] in the future ".149 
7.51.   Russia  responds that the European Union fails to recognize the differences between the  
zeroing methodology at issue in US – Zeroing (E C) and the Cost Adjustment Methodology. Russia 
argues that, u nlike the zeroing methodology, the Cost Adjustment Methodology is not a computer 
programme code inserted into "each particular anti -dumping measure [that] operated in an entirely 
mechanistic and mathematical manner ".150 According to Russia, t he Cost Adjustment Methodology 
is used by the European  Commission  in a specific set of circumstances .151 Therefore, for Russia, the 
legal standard articulated in US – Zeroing (EC)  is not applicable to the  Cost Adjustment Methodology . 
7.52.   We note that, i n US ‒ Zeroing (EC ), the Appellate Body agreed with the panel that the zeroing 
methodology  amounted to a "rule or norm" of " general and prospective application ". The 
Appellate  Body noted that the panel relied on evidence consisting of "considerably more than a string 
of cases, or repeat action".152 This evidence included the facts that the zeroing methodology was a 
"constant feature" of the computer program me used to perform margin calculations,  that it was 
"invariably " applied for an extended period of time , that instances of non -application had not been 
identified , that the Member maintaining the measure (the Unite d States) had not contested that the 
zeroing methodology reflected a "deliberate policy ", and that certain provisions of a document of the 
USDOC (the Anti -Dumping Manual) confirmed "the 'standard' character of the … [z]eroing 
[p]rocedures ".153 
7.53.   The elements taken into account in US – Zeroing (EC)  to establish the existence of the zeroing 
methodology provide useful guidance for our analysis of the Cost Adjustment M ethodology, 
considering that Russia has defined the challenged measure in similar ter ms: a methodology with 
"general and prospective application ".154 However, we do not understand the Appellate Body to have 
suggested that a complainant must always show all these elements to demonstrate successfully the 
"general and prospective application " of a measure.  For instance, in establishing that the zeroing 
methodology was a "rule or norm" of "general and prospective application", in US – Zeroing (EC)  
the panel and the Appellate Body relied on the fact that the United States "ha[d] not contested … 
that [the] U SDOC's zeroing methodology reflect [ed] a deliberate policy".155 In this connection, we 
recall that the analysis of whether a measure has "general and prospective application " may vary 
 
144 Appellate Body Report, US – Anti-Dumping Methodologies (China) , paras.  5.130 and 5.147.  
145 Appellate Body Report, US – Anti-Dumping Methodologies (China),  paras.  5.130 and 5.147.  
146 Appellate  Body Report, US – Anti-Dumping Methodologies (China) , para.  5.132 (referring to 
Appellate  Body Reports, US – Oil Country Tubular Goods Sunset Reviews , paras.  172 and 187; 
US ‒ Corrosion -Resistant Steel Sunset Review , para.  82). 
147 Appellate Body Report, US – Zeroing (EC) , para.  198. 
148 European Union's opening statement at the first meeting of t he Panel, para.  16. 
149 European Union's response to Panel question No. 70, para.  7. (emphasis omitted)  
150 Russia's opening statement at the first meeting of the Panel, para.  57 (referring to 
European  Union's  first written submission, para.  87). 
151 Russia's op ening statement at the first meeting of the Panel, para.  61. 
152 Appellate Body Report, US – Zeroing (EC) , para.  204.  
153 Appellate Body Report, US – Zeroing (EC) , paras.  199-204.  
154 Appellate Body Reports, Argentina – Import Measures , para. 5.107.  
155 Appellate Body Report, US – Zeroing (EC) , para.  199. WT/DS494/R  
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  from case  to case and the factors that may be relevant in this  assessment would depend on the 
particular facts of the case.156  
7.54.   Turning to our analysis of the Cost Adjustment Methodology, we consider that the 
anti-dumping determinations of the European  Commission  advanced by Russia show that the 
European  Commission  has invariably engaged in the same conduct  for a period that spans over 
15 years, in anti -dumping proceedings covering a wide range of products  originating in  various 
WTO Members. W e note that the European Union has advanced no evidence  of any 
European  Commission  anti-dumping determination where , in the calculation of the costs of 
production, input prices were not rejected and replaced with an external benchmark in the 
circumstances described by Russia. We also note that the specific com panies that were subject to 
the Cost Adjustment Methodology varied greatly.157 In our view, this suggests that the Cost 
Adjustment Methodology is a measure of "general application " because it affects an unidentified 
number of economic operators. The Cost Ad justment Methodology does not concern  specified  
economic operators  from a specific WTO  Member , in the sense that the companies that will be 
subject to the Cost Adjustment Methodology can be identified independently of any specific 
application of this norm.  
7.55.   As to the purported "prospective  application"  of the Cost Adjustment Methodology, we agree 
with the Appellate Body's consideration that, in order to demonstrate prospective application, a 
complainant is not required to show with "certainty" that a given m easure will apply in future 
situations.158 According to the Appellate Body, where prospective application is not sufficiently clear 
from the constitutive elements of the measure, it may be demonstrated through a number of factors:  
The existence of an underl ying policy, which is implemented by the rule or norm, is a 
relevant element in establishing the prospective nature of that rule or norm. In addition, 
the more frequent, consistent, and extended the repetition of conduct is, the more 
probative such conduct  will be in revealing, together with other factors, such an 
underlying policy. In this regard, the Appellate Body has explained that relevant 
evidence may include proof of the systematic application of the challenged rule or norm. 
Where ascertainable, the design, architecture, and structure of the rule or norm may 
also be relevant in identifying the underlying policy and  prospective nature of that rule 
or norm. In addition, the extent to which a particular rule or norm provides 
administrative guidance for f uture conduct and the expectations it creates among 
economic operators that it will be applied in the future, are also relevant in establishing 
the prospective nature of that rule or norm.159  
7.56.   As already noted, the evidence put forward by Russia suggests that the Cost Adjustment 
Methodology was applied for the first time in 2005, a nd repeatedly in 2006, 2007, 2008, 2009, 2012, 
2013, 2015 and 2019 . In February 2013, the General Court of the European Union examined whether 
the costs adjustments impl emented by the European  Commission  in four anti -dumping proceedings 
concluded in 2006, 2008 and 2009, concerning imports of ammonium nitrate  and solutions of urea 
and ammonium nitrate from Russia160, were consistent with  Article  2(5) of the Basic AD Regulat ion. 
These cases –T 235/08 ( "Acron I ")161, T 118/10 ( "Acron II ")162, T 459/08163, and T 84/07164 were 
 
156 Appellate Body Report, US – Anti-Dumping Methodologies (China) , para.  5.133.  
157 See, e.g. Regulation  1891/2005, ( Exhibit  RUS-19), recital  11 and Article  1; Regulation  954/2006, 
(Exhibit  RUS-34), recital  15 and Article  1; Regulation  812/2008, ( Exhibit  RUS-16), recitals  2 and 6, and 
Article  1; Regulation  1269/2012, ( Exhibit  RUS-22), recitals  1 and 4, and Article  1; Regulation  1911/2006, 
(Exhibit  RUS-20), recitals  14 and 21, and Article  1; Regul ation 238/2008, (Exhibit  RUS-35), recital  3; 
Regulation  1251/2009, ( Exhibit  RUS-33), recitals  3 and 9, and Article  1; Regulation  236/2008, 
(Exhibit  RUS-17), recital  3; Regulation  661/2008, ( Exhibit  RUS-15), recitals  3 and 23, and Article  2; 
Regulation  237/2008, ( Exhibit  RUS-24), recital  5; Regulation  240/2008, ( Exhibit  RUS-28), recital  17; 
Regulation  2015/110, ( Exhibit  RUS-21), recital  12 and Article  2; and Regulation  1194/2013, ( Exhibit  RUS-23), 
Article  2. 
158 Appellate Body Report, US – Anti-Dumping Methodo logies (China) , para.  5.132.  
159 Appellate Body Report, US – Anti-Dumping Methodologies (China) , para.  5.132 (referring to 
Appellate  Body Report, US – Oil Country Tubular Goods Sunset Reviews , para.  187). (fns omitted)  
160 Regulation  236/2008, (Exhibit  RUS-17); Regulation  1251/2009, (Exhibit  RUS-33); 
Regulation  661/2008, (Exhibit  RUS-15); and Regulation  1911/2006, (Exhibit  RUS-20). 
161 Case T  235/08, (Exhibit  RUS-12). 
162 Case T  118/10, (Exhibit  RUS-29). 
163 Case T  459/08, (Exhibit  RUS-14). 
164 Case T  84/07, (Exhibit  RUS-13). WT/DS494/R  
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  issued on the same date, address similar claims, and largely share the same reasoning. In the 
judgments, the General Court of the European Union was of the vi ew that the European  Commission  
was "fully entitled " to conclude , pursuant to  Article  2(5), " that one of the items in the  
applicants'  records could not be regarded as reasonable " and that, consequently, "that ite m had to 
be adjusted by having recourse to o ther sources from markets which the institutions regarded as 
more representative".165 In all four cases, the General Court of the European Union concluded, under 
similar terms, that " [s]ince the price of gas in Russia was regulated, it may indeed be presumed that 
the cost of producing the product concerned was affected by a distortion of the domestic Russian 
market regarding the price of gas, as that price was not the result of market forces ".166 
7.57.   In the definitive determination in the anti -dumping investigation concerning imports of 
biodiesel from Argentina and Indonesia issued in November 2013167, citing the Acron I case, the 
European  Commission  relied on the conclusions of the General Court of the European Union to 
support its decision to disregard the  costs of the main raw materials included in the records of the 
Argentinian and Indonesian exporting producers , and to replace each of them with a reference price.  
The European  Commission  rejected the claims  raised by the Argentine and Indonesian exporting  
producers to the adjustments made to their costs of production, in the following terms:  
[T]he General Court established in the Acron [ I] case the principle of law that if the 
costs associated with the production of the product under investigation are not 
reasonably reflected in the records of the companies, they do not serve as a basis for 
calculating normal value and that such costs could be replaced with costs reflecting a 
price set by market forces  pursuant to  Article  2(5) of the basic Regulation. The f act that 
the Acron [I] case concerned prices that were regulated by the State cannot, however, 
be interpreted as meaning that the Commission is precluded to apply  Article  2(5) in 
respect to other forms of State intervention that distorts, directly or indir ectly, a 
particular market by depressing prices to an artificially low level.168 
7.58.   In recent determinations, the European  Commission  invoked  the above -mentioned 
judgements of the General Court of the European Union in support of the "adjustments" made  to 
the costs of production . In particular, Russia submits two anti -dumping determinations issued by 
the European  Commission  in 2019, concerning  the provisional169 and definitive170 determinations in 
the original investigation in relation to imports of mixtures of urea and ammonium nitrate originating, 
inter alia , in Russia  (Regulations 2019/576 and 2019/1688 ).171 
7.59.   In the provisional determination, following its findings that the natur al gas prices in Russia 
were regulated by the State via federal laws and were based on policy objectives, the 
European  Commission  rejected the claims  made by the Russian exporting producers and considered 
 
165 See, e.g. Case T  235/08, (Exhibit  RUS-12), para.  46.  
166 Case T  235/08, (Exhibit  RUS-12), para.  44; Case T  118/10, (Exhibit  RUS-29), para. 51; 
Case T 459/08, (Exhibit  RUS-14), para. 65; and Case T  84/07, (Exhibit  RUS-13), para. 58.  
167 Regulation  1194/2013, (Exhibit  RUS-23). 
168 Regulation  1194/2013, (Exhibit  RUS-23), recital  72. See also ibid. recital  42.  
169 Regulation  2019/576, (Exhibit  RUS-167).  
170 Regulation  2019/1688, (Exhibit  RUS-166).  
171 We note that, in one of its last submissions to the Panel, the European Union objected against 
Russia's "attempt to bring [Regulations 2019/1688 and 2019/576] in these proceedings" on the ground that 
they are "outside the scope" of the dispute . (European Union's comments on Russia's response to Panel 
question No. 71, para. 33). We reject this objection. First, Russia advanced Regulations 2019/1688 and 
2019/576, and discussed this evidence for the first time, in its second written submission to the Panel, in 
response to the European Union's argument that the evidenc e on the record does not demonstrate the 
existence of the Cost Adjustment Methodology . (Russia's second written submission, paras. 459 -460). We 
consider that, while there are temporal limitations on the measures that may be within the scope of a dispute, 
such limitations do not apply in the same way to evidence. In this connection, we agree with the Appellate 
Body's understanding in EC – Selected Customs Matters  that "[e]vidence in support of a claim  challenging 
measures that are within a panel's terms of r eference may pre -date or post -date the establishment of the 
panel". A panel is, thus, "not precluded from assessing a piece of evidence for the mere reason that it 
pre-dates or post -dates its establishment". (Appellate Body Report, EC – Selected Customs Ma tters, 
para. 188). Accordingly, we find it appropriate to take into account Regulations 2019/1688 and 2019/576 in 
our analysis of the existence of a Cost Adjustment Methodology. Second, we note that the European Union 
does not allege that these regulations  were filed late in the proceeding. In any event, we consider that Russia 
submitted Regulations 2019/1688 and 2019/576 at a time in the proceeding that conforms with our Working 
Procedures (see Panel's Working Procedures, para. 5) and that the European Uni on had opportunities to 
present its views on this evidence during the proceeding.  WT/DS494/R  
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  the "gas adjustments [to be] warranted under  Article 2(5) of the [Basic AD] Regulation  as confirmed 
by the Court of Justice".172 In doing so, the European  Commission  referred  to cases T 84/07  and 
T 118/10, which, as already noted, reflect the endorsement of the Cost Adjustment Methodology  by 
EU Courts . In the final determination, in selecting the benchmark to be used for the gas adjustment, 
the European  Commission  considered the so -called "Waidhaus p rice", i.e. the price of exported 
Russian gas at the German/Czech border, to be a proper benchmark. The European  Commission  
relied, inter alia, on the fact that " [the use of this price] as a benchmark was confirmed by the 
respective judgements of the Court  of Justice".173  
7.60.   We note Russia's allegation, based on the language used in the definitive determination in the 
anti-dumping investigation concerning imports of biodiesel from Argentina and Indonesia, that the 
European  Commission  applies the C ost Adjustmen t Methodology as a "principle of law"  recognized 
by the General Court of the European Union.174 According to Russia, this "principle of law" is 
considered and accepted by the European  Commission  "as judicial and administrative guidance" in 
the conduct of anti -dumping proceedings.175 The European Union contends that, as a matter of EU 
municipal law , Russia's affirmation that a "principle of law" underlies the application of the Cost 
Adjustment Meth odology is "incomprehensible, erroneous and not supported by any evidence ". 176 
7.61.   We consider that, regardless of whether within the legal framework of the European Union 
the European  Commission 's reference to a "principle of law" has any legal binding force,  the fact 
remains that the European  Commission , the authority responsible for administering anti -dumping 
proceedings, considers the application of the cost adjustment  to be endorsed by the General Court 
of the European Union and, based on that endorsement,  implements the cost adjustment when faced 
with the circumstances described by Russia. Moreover, the European  Commission 's reference to a 
"principle of law" "established" by the General Court suggests to us that the European  Commission  
regards the interpre tation of  Article  2(5) made by the EU Court as controlling and expected to be 
followed in future cases.  In our view, the reference , in the determinations cited by Russia, to the 
decisions of the General Court of the European Union are relevant to the extent that they reveal the 
prospective invocation of the measure , thus suggest ing that the European  Commission  would likely 
engage in that same conduct in the future.  Moreover, regarding Russia's ass ertion that, by applying 
the Cost Adjustment Methodology, the European  Commission  "significantly increases " the cost of 
production and subsequent dumping  margin  in anti -dumping proceedings177, we note that Russia 
supports this assertion with two instances o f application of  this measure .178 While this evidence does 
not allow us to conclude that the Cost Adjustment Methodology , as a measure of general and 
prospective application, would necessarily have that effect  in all cases where it is applied , we accept 
that it would logically follow that the application of the cost adjustment may result in an increase of 
the cost of production  and subsequent dumping marg in, in certain circumstances . However, there is 
no evidence in the record suggesting that the Cost Adjustment Methodology  has been developed by 
the European Union as a "deliberate policy " to remove "distortions"  or to increase the cost of 
production and subsequent dumping margin  for investigated producers , as argued by Russia.  
7.62.   In the light of our examination of the evidence advanced by Russia, we are of the view that 
the Cost Adjustment Methodology has "prospective  application" . We base this conclusion on the 
following factors : (i) the methodology has been consistently and syste matically applied for an 
extended period of time ; (ii) it has been  endorsed by the General Court of the European Union;  and 
 
172 Regulation  2019/576, ( Exhibit  RUS-167), para.  58 and fn 12.  
173 Regulation  2019/1688, ( Exhibit  RUS-166), para.  41 and fn 9 (referring to Case T  84/07, 
(Exhibit  RUS-13) and to Case T  118/10, (Exhibit  RUS-29)). See also Regulation  2019/576, ( Exhibit  RUS-167), 
para. 55(d) and fn 9.  
174 Russia's response s to Panel question No. 19, para.  66; question No. 25, para.  94. 
175 Russia's response to Panel question No. 73, para.  63. 
176 Europe an Union's response to Panel question No. 24, para.  69. 
177 Russia's first written submission, paras. 379 to 386. 
178 First, Russia refers to the expiry review on imports of urea from, inter alia , Croatia, Libya and 
Ukraine. In this proceeding, the European  Commission declined to make an adjustment to the gas costs from 
Croatia and Libya, but noted that the adjustment "would increase the dumping margin significantly". 
(Regulation 240/2008, (Exhibit RUS -28), recital s 26 and 41). Second, Russia refers to the pane l's statement in 
EU – Biodiesel (Argentina)  that the replacement by the European  Commission in the underlying investigation of 
the actual costs with a uniform price for soybeans for all producers "significantly increased the costs of 
production for each of  the Argentine producers" . (Panel Report, EU – Biodiesel (Argentina),  para. 7.182 ). WT/DS494/R  
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  (iii) the European  Commission  has relied on that endorsement as a "principle of law” " to continue  to 
apply the methodology until at least 2019 . 
7.63.   Finally, our conclusion that the Cost Adjustment Methodology has prospective application is 
also based on the fact that the European Union has not been able to identify any instance of 
non-application. In response to a panel question on whether there have been cases in which the 
challenged methodology has not been applied in the specific set of circumstances described by 
Russia, the European Union stated that " [i]f there are verified distortions in the price of inputs, the 
European  Commission  would have the  right to have recourse to an appropriate proxy to establish 
the undistorted cost of production in the country of origin ".179 In our view, this statement suggests 
that the Cost Adjust M ethodology , as described by Russia, is likely to be applied  in the futur e. 
Conclusion  
7.64.   In the light of the above, we find that Russia has established the existence of the Cost 
Adjustment Methodology as a measure of "general and prospective application " attributable to the 
European Union.  
7.65.   Before turning to the consistency of  the Cost Adjustment Methodology with Articles  2.2.1.1 
and 2.2  of the Anti -Dumping Agreement , we consider it useful to mention that our conclusion that 
the challenged measure exists result s from our holistic assessment of all the arguments and evidence 
presented by Russia, and the responses and evidence provided by the European Union, in accordance 
with the considerations outlined in the previous paragraphs. In this connection , we note that Russia 
has submitted additional arguments and evidenc e to demonstrate the precise content and general 
and prospective application  of the Cost Adjustment Methodology, such as  (i) the second 
subparagraph of  Article  2(3) of the Basic AD Regulation, read in the light of recital 3 of 
Regulation  1972/2002; (ii) op inions expressed by legal experts; and (iii)  Article  2(6a) of the Basic 
AD Regulation  introduced by Regulation  2017/2321,  Article  7(2a) of the Basic 
AD Regulation  introduced by Regulation  2018/825, and recitals 3, 5, and 7 of Regulation  2017/2321 
and recital 8 of Regulation  2018/825. After reviewing these arguments and evidence, we conclude 
that they do not sufficiently support Russia's claims  regarding the existence of the Cost Adjustment 
Methodology.180  
7.66.   In relation to Regulation s 2017/2321 and 2018/825 , we recall that Russia has asked us to 
find that the following measures fall within our terms of reference:  Article  2(6a) introduced by 
Regulation  2017/2321 ; Article  7(2a) introduced by Regulation  2018/825 ; recitals 3, 5, and 7 of 
Regulati on 2017/2321 ; and recital 8 of Regulation  2018/825. We respond to Russia's request  in the 
next subsection . 
 
179 European Union's response to Panel question No. 69, paras.  4-5.  
180 For instance, we do not read the second subparagraph of Article  2(3) of the Basic AD Regulation  and 
recital 3 of Regulation  1972/2002, either individually or together, as offering elements that establish the 
existence, or precise content, of a methodology  pursuant to which the European  Commission  adjusts domestic 
input prices in the manner described by Russia. The second subparagraph of Article  2(3), and recital  3 of 
Regulation  1972/2002, clarify what circumstances could be considered by the investigating authorities  as 
constituting a "particular market situation", which does not relate to the calculation of costs.  
As regards the opinions expressed by legal experts, Russia refers to an article published in a law journal 
and to excerpts from a book. These ac ademic writings draw a link between the introduction of the second 
subparagraph of Article  2(3) and the second subparagraph of Article  2(5) in 2002, and the granting by the 
European Union of market economy status to Russia in the same year. In these public ations, the authors 
express a personal view that, by virtue of these amendments, the European Union extended the non -market 
economy techniques to market economies as well. While these authors consider that the se provisions of the 
Basic AD Regulation  could be applied in a way that results in the rejection of domestic costs and the use of 
costs from other markets, the publications do not refer to a cost adjustment methodology, nor describe or 
explain how such a methodology is applied by the European  Commissio n. In fact, because they were published 
in 2002 and 2004, the publications pre -date the application of the Cost Adjustment Methodology.  
Moreover, we do not consider that Regulations 2017/2321 and 2018/825, or the evidence related to the 
promulgation of suc h regulations put forward by Russia, support Russia's claims  regarding the existence of the 
Cost Adjustment Methodology . Regulations 2017/2321 and 2018/825 do not concern the examination of 
whether the records of the investigated companies "reasonably refl ect the costs associated with the production 
and sale of the product under consideration", pursuant to Article  2(5) of the Basic AD Regulation.  WT/DS494/R  
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Russia's request concerning Regulation s 2017 /2321 and 2018/825  
7.67.   Russia notes that, following the establishment of the panel in December of 2016 , the 
European  Union enacted Regulation s 2017/2321 and 2018/825 , which amend ed the Basic 
AD Regulation, by introducing, respectively,  Articles  2(6a) and 7(2a) to the Basic AD Regulation. 
Russia submits that these provisions, as well as related recitals 3, 5, 7 o f Regulation  2017/2321 and 
recital 8 of Regulation  2018/825 , "confirm" and "clarify" certain aspects of the Cost Adjustment 
Methodology.181 
7.68.   Russia asserts that the new provisions of the Basic AD Regulation  introduced by 
Regulation s 2017/2321 and 2018/825  provide for a new methodology to calculate the costs of 
production in anti -dumping proceedings, and that this new methodology has "similar substance and 
effects" as the Cost Adjustment Methodology .182 According to Russia, like the Cost Adjustment 
Methodology,  Articles  2(6a) and 7(2a)  deal with the existence of "distortions" caused by government 
regulation  that affects the price of "raw materials". Arguing that these provisions clarify the level of 
"distortions" that triggers the rejection of the correctly reco rded input cost and its replacement with 
"undistorted" input price s183, Russia asserts that  Articles  2(6a) and 7(2a) constitute the last 
"evolutional development " of the legal basis for the application of the Cost Adjustment 
Methodology.184 
7.69.   Russia  considers that Regulations 2017/2321 and 2018/825 represent evidence of 
"considerable weight "185 for the Panel's examination of the existence of the Cost Adjustment 
Methodology .186 But Russia also asks the Panel to make findings on the WTO -consistency of  
Articles 2(6a) and 7(2a) of the Basic AD Regulation, since these provisions and the Cost Adjustment 
Methodology are not "mutually exclusive" . Rather,  for Russia, both sets of measures have "clear 
connect ions", complement each other  and can be applied, indivi dually or together, in future 
anti-dumping proceedings to deal with purported "distortions" in costs  of production .187 
7.70.   Based on these reasons, Russia requests us to find that  Article  2(6a) of the Basic 
AD Regulation  introduced by Regulation  2017/2321, Article 7(2a) of the Basic AD Regulation , and 
related recitals 3, 5, and 7 of Regulation  2017/2321 and recital 8 of Regulation  2018/825 , are 
inconsistent with  Articles  2.2.1.1 and 2.2 of the Anti-Dumping Agreement.188 According to Russia, 
without such findings the dispute would not be fully resolved, as these new provisions of the Basic 
AD Regulation  would continue providing the legal basis for European  Commission 's similar 
determinations and actions , as under the Cost Adjustment Methodology.189 
7.71.   The European Union contends that neither Regulation s 2017/2321 and 2018/82 5, nor any 
provision s of these Regulation s are within  the Panel's terms of reference, because, a t the time of 
the panel request, Regulation s 2017/2321 and 2018/82 5 did not exist and there is no reference to 
these Regulation s in Russia's panel request . Therefore, for the European Union, the WTO -consistency 
of Regulation s 2017/2321 and 2018/82 5, or of any provision s of these Regulation s, is not a matter 
within  the terms of reference of the Panel .190 
7.72.   Article 6.2 of the DSU provides that a panel request "shall … identify the specific measures at 
issue and provide a brief summary of the legal basis of the complaint sufficient to present the 
problem clearly". Consis tency with  Article  6.2 must be determined on the basis of an objective 
 
181 Russia's opening statement at the first meeting of the Panel, para.  84; response to Panel question 
No. 25, para.  96; and second written submission, para.  622. 
182 Russia's response to Panel question No. 72, para.  51.  
183 Russia's response to Panel question N o. 25, para.  96. 
184 Russia's first written submission, para.  303; second written submission, para.  627. 
185 Russia's response to Panel question No. 25, para.  91 
186 Russia's second written submission, para.  617. 
187 Russia's response to Panel question No. 72, par a. 58; opening statement at the first meeting of the 
Panel, para.  86; and response to Panel question No. 25, para.  91. 
188 Russia's response to Panel question No. 25, paras.  91-92. 
189 Russia's response to Panel question No. 25, para.  101; second written submi ssion, para.  652; and 
response to Panel question No. 67, para.  39. 
190 European Union's response to Panel question No. 25, para.  73. Moreover, the European Union 
submits that the existence and precise content of the alleged measure at issue must be assessed at the date 
on which the Panel was established. Because Regulations 2017/2321 and 2018/825 were adopted years later, 
they have no relevance to the analysis that the Panel is called upon to carry out.  WT/DS494/R  
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  examination of the panel request as a whole, as it existed at the time of filing, and on the basis of 
the language used therein191; that is , "'on the face' of the panel request".192 The term "specific 
measures at issue" in  Article  6.2 suggests that, as a general rule, the measures included in a 
panel's  terms of reference must be measures that are in existence at the time of the 
panel's  establishment.193 
7.73.   Section I.D of Russia 's panel request sets forth a claim under  Articles  2.2.1.1 and 2.2 of the 
Anti-Dumping Agreement with respect to the Cost Adjustment Methodology, in the terms described 
by Russia.194 Articles  2(6a) and 7(2a) of the Basic AD Regulation  introduced by 
Regulation s 2017/2321 and 2018/82 5, respectively, and recitals 3, 5, and 7 of 
Regulation  2017/2321 and recital 8 of Regulation  2018/825 , are not included in Russia's panel 
request.  
7.74.   Russia submits that, while not explicitly  mentioned, the terms  of the panel request are broad 
enough as to include in the Panel's terms of reference  Articles  2(6a) and 7(2a) of the Basic 
AD Regulation  introduced by Regulation s 2017/2321 and 2018/82 5, respectively, and recitals 3, 5, 
and 7 of Regulation  2017/2321 and recital 8 of Regulation  2018/825 . Russia refers to Section IV of 
Russia's panel request195, which provides that Russia's panel request covers any "amendments, 
replacements, extensions, related and implementing measures and any act of the European U nion 
authorities that would affect the measures at issue".196  
7.75.   We note that p hrase s of the nature of that included in Section IV of Russia's panel request 
have been interpreted as authori zing a panel to consider within its terms of reference measures 
enacte d after the panel's establishment.197 This is to avoid  that the procedural requirements of 
WTO dispute settlement result in a situation where later in time measures that are essentially the 
same as measures falling with in a panel's terms of reference could completely evade review.198 
However, i n order to find that a measure not included in a panel request  is nevertheless within a 
panel's terms of reference, despite being later in time, a panel must examine whether the new 
measure and the original measure are  of the same  essence .199 A measure enacted after the panel's 
establishment that "changes the essence"  of the original measure  or that "ha [s] legal implications 
overly different from those of the original measur [e]" would not be in the jurisdictio n of a panel.200 
7.76.   After carefully examin ing Russia's arguments and evidence in relation to the  set of measures 
enacted following the panel's establishment , and Russia's description and characteri zation of the 
Cost Adjustment Methodology, we are of the view that Articles  2(6a) and 7(2a) of the Basic AD 
Regulation  introduced by Regulation s 2017/2321 and 2018/82 5, respectively, and recitals 3, 5, 
and 7 of Regulation  2017/2321 and recital 8 of Regulation  2018/825 , are not within our terms of 
reference . These meas ures and the Cost Adjustment Methodology described in Russia's panel 
request are not  of the same  essence . 
7.77.   We base this conclusion on the fact that , according to Russia's description and explanations 
of the challenged measure, the European  Commission  implements the Cost Adjustment Methodology 
"as part of their examination " pursuant to  Article  2(5) of the Basic AD Regulation, in particular in 
the anal ysis of whether records kept by the investigated companies "reasonably reflect the costs 
associated with the production and sale of the product under consideration".201 The provisions of 
Regulations 2017/2321 and 2018/82 5 cited by Russia do not concern the examination of whether 
 
191 Appellate Body Report, EC and certain member States – Large Civil Aircraft , para.  641 (referring to 
Appellate Body Reports, US – Carbon Steel , para.  127; US – Oil Country Tubular Goods Sunset Reviews , 
paras.  164 and 169; US – Continued Zeroing , para.  161; and US – Zeroing (Japan) (Article  21.5 – Japan) , 
para. 108).  
192 Appellate Body Report, US – Continued Zeroing , para.  161 (quoting Appellate Body Report, US – 
Carbon Steel , para. 127).  
193 Appellate Body Report, EC – Chicken Cuts , para.  156 
194 Russia's panel request, p.  3. 
195 Russia's opening statement at the first  meeting of the Panel, paras.  84-88. 
196 Russia's panel request, pp. 7 -8. 
197 Panel Reports, China – Raw Materials, para. 7.12. 
198 Appellate Body Report, Chile – Price Band System , paras.  139 and 144; Panel Reports, EC – IT 
Products, para. 7.140.  
199 Panel Reports, China – Raw Materials, para. 7.15. 
200 Panel Reports, EC – IT Products, para. 7.139.  
201 Russia's first written submission, para.  305. WT/DS494/R  
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  the records of the investigated companies "reasonably reflect the costs associated with the 
production and sale of the product under consideration ", pursuant to  Article  2(5) of the Basic 
AD Regulation. Rather, we read Regulations 2017/2321 and 2018/82 5 as introducing, respectively, 
new disciplines related to the calculation of normal value and to the determination of the level of 
duties to be imposed in anti -dumping proceedings.  
7.78.   The first provision of  Article  2(6a) – 2(6a)(a)  – introd uced by Regulation  2017/2321 , 
provides:  
In case it is determined, when applying this or any other relevant provision of this 
Regulation, that it is not appropriate to use domestic prices and costs in the exporting 
country due to the existence in that count ry of significant distortions …, the normal 
value shall be constructed exclusively on the basis of costs of production and sale 
reflecting undistorted prices or benchmarks.  
7.79.   Article 2(6a) (b) to  Article  2(6a) (e) govern the application of this provision, incl uding by 
introducing the notion of "significant distortions ". In turn,  Article  2(7a) introduced by 
Regulation  2018/82 5 concerns the determination of the level of duties to be imposed . According to 
this provision, when examining whether a duty lower than the margin of dumping would be sufficient 
to remove injury, the European  Commission  shall take into account whether there are significant 
distortions on raw materials with regard to th e product concerned. While these provisions address 
the issue of significant distortions in the exporting country,  none of them specifically concern  whether 
the records "reasonably reflect the costs associated with the production and sale of the product 
under consideration ", pursuant to  Article  2(5) of the Basic AD Regulation. We note, however, that 
this is  an essential feature  of Russia's description of the challenged measure . 
7.80.   In our view, the text of  Articles  2(6a) and 7(2a) of Regulations 2017/2321 and 2 018/825 
suggests that these provisions introduce disciplines concerning the calculation of normal value and 
determination of the level of duties, which have different legal implications from those arising from 
the Cost Adjustment Methodology.  Accordingly, we are not persuaded that these new measures and 
the Cost Adjustment Methodology are  of the same essence.  We also find it relevant that, for Russia, 
the provisions added by Regulations 2017/2321 and 2018/82 5 to the Basic AD Regulation  "do not 
replace" the Cost Adjustment Methodology.202 
7.81.   In the light of the above , we find that the provisions and recital s of Regulations 2017/2321 
and 2018/82 5 referred to by Russia are not within our terms of reference. Accordingly, we reject 
Russia's request that we examine and make findings in relation to  Articles  2(6a) and 7(2a) of the 
Basic AD Regulation  introduced by Regulation s 2017/2321 and 2018/82 5, respectively, and related 
recitals  3, 5, and 7 of Regulation  2017/2321 and recital 8 of Regulation  2018/825 . 
Whether the Cost Adjustment Methodology is inconsistent with  Article  2.2.1.1 of 
the Anti -Dumping Agreement by providing for the rejection of the reco rded costs  
7.82.   We recall that Russia claims  that the Cost Adjustment Methodology is inconsistent with the 
first sentence of  Article  2.2.1.1 of the Anti -Dumping Agreement  because, in applying the Cost 
Adjustment Methodology, the European  Commission  rejects the  costs reflected in the records that 
are kept by the exporter or producer under investigation in accordance with the GAAP of the 
exporting country and reasonably reflect the costs associated with the production and sale of the 
product under consideration.  
Main arguments of the parties  
Russia  
7.83.   Russia submits that, under  Article  2.2.1.1  of the Anti -Dumping Agreement, costs shall 
normally be calculated on the basis of records kept by the exporter or producer under investigation, 
provided that two conditions are met (a) the records are  in accordance with the GAAP  of the 
 
202 Russia's response to Panel question No. 72, para. 52.  WT/DS494/R  
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  exporting country ; and (b) the records "reasonably reflect the costs associated with the production 
and sale of the product under consideration ".203 
7.84.   Russia submits that the second condition of  Article  2.2.1.1 of the Anti -Dumping Agreement  
directs an investigating authority to examine whether the records "suitably and sufficiently 
correspond to or reproduce those costs incurred by the investigated exporter or producer that have 
a genuine relationship with the production and sale of the spec ific product under consideration".204 
According to Russia, this requires a comparison between, on the one hand, the costs as reported in 
the records and, on the other hand, the costs incurred by the specific producer /exporter , in order to 
establish whether the records reasonably reflect the costs actually borne by the 
producer /exporter .205 
7.85.   Russia argues that t he second condition in Article  2.2.1.1 of the Anti -Dumping Agreement 
does not provide for an analysis  of the "reasonableness" of the recorded  costs them selves206, nor 
should it be interpreted in a way that would allow an investigating authority to evaluate the 
"reasonableness" of the recorded costs vis-à-vis a benchmark unrelated to the cost of production in 
the country of origin , considered to reflect "normal circumstances".207 
7.86.   Russia recalls that t he Cost Adjustment Methodology  provides for the rejection of the recorded 
costs on the grounds that they are not reasonably reflected in the records of the 
producer/exporter .208 Accordingly, for Russia,  the Cost Adjustment Methodology  relies on the second 
condition in the first sentence of Article  2.2.1.1 of the Anti -Dumping Agreement  in rejecting the 
recorded input prices incurred by the investigated producers .209 Russia claims  that the Cost 
Adjustment M ethodology  is inconsistent with the first sentence of  Article  2.2.1.1 of the 
Anti-Dumping  Agreement because, relying on the second condition, it provides for the rejection of 
the recorded costs when input prices are significantly lower than international prices due to alleged 
"distortion s" created by government regulation in the exporting country.210 For Russia, through such 
comparison with international prices , the Cost Adjustment Methodology  provides for an examination 
of the "reasonableness " of the costs themselves211, in violation of the first sentence of  Article  2.2.1.1  
of the Anti -Dumping Agreement . 
European Union  
7.87.   Without engaging in the specific findings reflected in the anti -dumping determinations  put 
forward by Russia, the European Union  argues that the circumstances in which data or information 
in the records of the firm may be rejected are highly fact -dependent. According to the 
European  Union, such circumstances may arise f rom the failure to respect either one of the two 
express condit ions set out in the first sentence of  Article  2.2.1.1 of the A nti-Dumping  Agreement . 
However, these two express conditions in the first sentence of  Article  2.2.1.1 do not exhaust the 
circumstances in which costs reflected in the records of the producer or exporter under investigation 
may be rejected .212 According to the European Union, d ata or information in the records of the firm 
may also be rejected in the circumstances captured by the term "normally" that appear s in the first 
 
203 Russia's first written submission, paras.  232 and 404. 
204 Russia's first written submission, para.  413 (referring to Appellate Body Report, EU – Biodiesel 
(Argentina),  para. 6.26).  
205 Russia's first written submission, para.  418 (referring to Panel Report, EU – Biodiesel (Argentina),  
para. 7.242).  
206 Russia' s first written submission, para.  413 (quoting Appellate Body Report, EU – Biodiesel 
(Argentina) , para.  6.56); response to Panel question No. 29(a), para.  121 (quoting Appellate Body Report, 
Ukraine – Ammonium Nitrate , para.  6.102).  
207 Russia's first writte n submission, para.  411 (referring to Appellate Body Report, EU – Biodiesel 
(Argentina) , paras.  6.23 and 6.30)  
208 Russia's first written submission, para.  410. 
209 Russia's first written submission, para.  408. 
210 Russia's response to Panel question No. 21, para.  72. 
211 Russia's first written submission, para.  409. 
212 European Union's response to Panel question No. 75, para.  14. WT/DS494/R  
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  sentence of  Article  2.2.1.1 , and in the circumstances captured by the terms " [f]or the purpose of 
paragraph  2" that also appear in the first sentence of  Article  2.2.1.1.213  
7.88.   In relation to the term "normally", the European Union argues that in Ukraine – Ammonium 
Nitrate, the Appellate Body confirmed that the two circumstances or conditions explicitly described 
in the first sentence of  Article  2.2.1.1 are not the only cases in which an investigating authority may 
decline to use the records of the investigated producer o r exporter . The European Union argues that, 
given the reference to "normally" in the first sentence of  Article  2.2.1.1, the Appellate Body " [did] 
not exclude that there might be circumstances other than those in the two conditions set out in that 
sentence,  in which the obligation to base the calculation of costs on the records kept by the exporter 
or producer under investigation does not apply".214 According to the European Union, such possible 
situations exist where the investigating authority is faced with unreliable data to make its 
determination.  
7.89.   In relation to the  terms "[f]or the purpose of paragraph 2" in the first sentence of  
Article  2.2.1.1 , the European Union argues that  Article  2.2.1.1 is applied "[f]o r the purpose" of  
Article  2.2, and the purpose of this latter provision is to determine a value that is "normal " pursuant 
to Article  2.1 of the Anti -Dumping Agreement , i.e. that permits a proper comparison, which for the 
European Union is a value that results from the normal operation of the market forces of supply and 
demand.215 
7.90.   For the European Union, t he words "normally " and "[f]or the purpose of  paragraph 2" in the 
first sentence of  Article  2.2.1.1  thus confirm that there are circumstances, other than th ose explicitly 
set out in that sentence, in which the obligation to base the calculation of costs on the records kept 
by the exporter or producer under investigation does not apply.216 In these circumstances, the 
European Union submits, an investigating aut hority cannot be required to make its normal value 
determination on the basis of cost data that is in the nature of being distorted and thus unreliable 
for a proper comparison of normal value and export prices under  Article  2 of the 
Anti-Dumping  Agreement .217 
Legal standard  
7.91.   The first sentence  of Article  2.2.1.1 of the Anti -Dumping Agreement provides:  
For the purpose of paragraph 2, costs shall normally be calculated on the basis of 
records kept by the exporter or producer under investigation, provided that such records 
are in accordance with the generally accepted accounting principles of the exporting 
country and reasonably reflect the costs associated with the production and sale of the 
product under consideration.  
7.92.   The first sentence of  Article  2.2.1.1 beg ins with the phrase "[f]or the purpose of paragraph  2". 
This indicates that, when normal value is being constructed because it cannot be determined on the 
basis of domestic sales, the calculation of "the cost of production in the country of origin" is subj ect 
to Article  2.2.1.1 of the Anti -Dumping Agreement.218 
 
213 The European Union argues that that includes, for example, the existence of a "particul ar market 
situation" within the meaning of Article  2.2 of the Anti -Dumping Agreement. For the European Union, it also 
includes, for example, the existence of an association or compensatory arrangement rendering the relevant 
data unreliable. (European Union 's first written submission, para.  98; opening statement at the first meeting of 
the Panel, para.  17). 
214 European Union's response s to Panel question No. 12, para.  42 and fn 13; question No. 29(a), 
para. 78 (referring to Appellate Body Report, Ukraine – Ammonium Nitrate , para.  6.87).  
215 European Union's response to Panel question No. 29(b), para.  79. 
216 European Union's comments on Russia's response s to Panel question No. 75, paras.  43-44; question 
No. 115, paras. 31 -33. 
217 European Union's closing statement a t the first meeting of the Panel, para. 8; response to Panel 
question No. 75, paras.  13-14 (referring to Appellate Body Report, Ukraine – Ammonium Nitrate , para.  6.87; 
comments on Russia's response to Panel question No. 75, paras. 43 -44 (referring to Panel  Report , Australia – 
Anti-Dumping Measures  on Paper , para.  7.115).  
218 Appellate  Body Report, EU – Biodiesel (Argentina) , paras.  6.24 and 6.44 ; Ukraine – Ammonium 
Nitrate , para. 6.86.  WT/DS494/R  
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  7.93.   The first sentence of  Article  2.2.1.1 identifies the records of the investigated exporter or 
producer as the preferred source for cost of production data, and directs an investigating authority 
to normally base its calculations of costs on the records of the exporter or producer under 
investigation, provided that the records comply with two conditions (i) they are in accordance with 
the GAAP of the exporting country; and (ii) "reasonably reflect the costs associated with the 
production and sale of the product under consideration".219 
7.94.   The first condition relates to whether the records of a specific exporter or producer conform 
to the accounting principles,  standards and procedures that are generally accepted and apply to 
such records in the exporting country. This condition has been unders tood to concern the general 
accounting and reporting practices of the exporter or producer.220 
7.95.   The second condition in the first sentence of  Article  2.2.1.1 has been interpreted  in two recent 
disputes:  EU – Biodiesel (Argentina)  and Ukraine – Ammonium Nitrate . In EU – Biodiesel (Argentina) , 
the Appellate Body understood this condition to relate to whether the records kept by the exporter 
or producer under investigation "suitably and sufficiently correspond to or reproduce those costs 
incurred b y the investigated exporter or producer that have a genuine relationship with the 
production and sale of the specific product under consideration ".221 Noting that this provision focuses 
on the "records"  of the exporter or producer under investigation , the Appellate Body rejected an 
interpretation that the second condition  in the first sentence of  Article  2.2.1.1 concerns whether the 
recorded costs themselves are "reasonable ".222 In this connection, based on the context provided 
by Article  2.2 of the Anti -Dump ing Agreement, the Appellate Body understood that the second 
condition "should not be interpreted in a way that would allow an investigating authority to evaluate 
the costs reported in the records kept by the exporter or producer pursuant to a benchmark 
unrelated to the cost of production in the country of origin".223 
7.96.   In Ukraine – Ammonium Nitrate , the Appellate Body reiterated its view that there is no 
standard of " reasonableness " under the second condition in the first sentence of  Article  2.2.1.1 that 
governs the meaning of "costs" itself, which would allow investigating authorities to disregard 
domestic input prices  when such prices are lower than other prices internationally.224 The 
Appellate  Body recalled that it is the "records" of the i ndividual exporter or producer under 
investigation  that are subject to the condition to "reasonably reflect" the "costs associated with the 
production and sale of the product under consideration".225 
Evaluation by the Panel  
7.97.   Russia has demonstrated that the first element of the Cost Adjustment Methodology provides 
for the rejection of the costs reflected in the records of the producer or exporter under investigation 
when domestic input prices are significantly low when compared to other markets, regulated by the 
government of the country of origin, or affected by other government measures.  In such situations, 
the European  Commission  considers that the costs are " not reasonably reflected " in the records of 
the exporter or producer under investigation  or fail to " reasonably reflect the costs " associated with 
the production and sale  of the relevant input or the product under consideration.226 In our view, the 
reasoning set out in the extracts of the European  Commission 's determinations reproduced above is 
best understood to reveal that it applies the Cost Adjustment Methodology to reject recorded cost 
information in reliance on the second condition  of the first subparagraph of  Article  2(5) of the 
Basic AD Regulation. Indeed, before the General Court, the  Council of the European Union  defended 
the European  Commission 's application of the Cost Adjustment Methodology on precisely this basis 
 
219 Appellate  Body Report, EU – Biodiesel (Argentina) , para. 6.18. 
220 Appellate  Body Report, EU – Biodiesel (Argentina) , para.  6.21. 
221 Appellate  Body Report, EU – Biodiesel (Argentina) , para.  6.56. 
222 Appellate Body Report, EU – Biodiesel (Argentina) , para. 6.56.  
223 Appellate  Body Report, EU – Biodiesel (Argentin a), para.  6.23. 
224 Appellate  Body Report, Ukraine – Ammonium Nitrate, para. 6.88 (referring to Appellate Body Report , 
EU – Biodiesel (Argentina) , paras.  6.37 and 6.56).  
225 Appellate  Body Report, Ukraine – Ammonium Nitrate, para. 6.88. 
226 See para.  7.40 above . WT/DS494/R  
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  in the five judgments put forward by Russia: T 235/08 ( "Acron I ")227, T 118/10 ( "Acron II ")228, 
T 459/08229, T 84/07230 and T  111/14.231 
7.98.   We recall that the second condition prescribed in  Article  2(5) of the Basic AD 
Regulation  stipulates that "it must be shown that the records reasonably reflect the costs associated 
with the production and sale of the product under consider ation". This language is virtually identical 
to the text of  Article  2.2.1.1 of the Anti -Dumping Agreement. As set out above, the focus of the 
obligation in the second condition of the first sentence of  Article  2.2.1.1 of the 
Anti-Dumping  Agreement has been  understood to be on whether the records of the exporter or 
producer reasonably reflect their costs, rather than whether the costs incurred by them are 
reasonable.232 We also note that in the two disputes in which the second condition in the first 
sentence of Article  2.2.1.1 of the Anti -Dumping Agreement was interpreted – EU – Biodiesel 
(Argentina)  and Ukraine – Ammonium Nitrate  – both the panel s and the Appellate Body considered  
that the existence of government measures  in the country of origin , of a different nature and effect 
on domestic input prices in each case,  did not constitute a  sufficient or  adequate basis to conclude, 
in application of the second condition  in Article  2.2.1.1 , that the records of the producer or exporter 
under investigati on do not "reasonably reflect the costs associated with the production and sale of 
the product under consideration".  
7.99.   Indeed, in  EU – Biodiesel (Argentina) , the government measure that was found to render the 
recorded costs unusable for the calculation of t he costs of production was the Argentine export tax 
system, which depressed the domestic price of the relevant inputs to an "artificially -low level".233 
The Appellate Body agreed with the panel that the European  Commission 's determination that 
domestic pric es of soybeans in Argentina were lower than international prices due to the Argentine 
export tax system  was not, in itself,  a sufficient basis under  Article  2.2.1.1 for concluding that the 
producers' records do not reasonably reflect the costs of soybeans associated with the production 
and sale of biodiesel, or for disregarding those costs when constructing the normal value of biodiesel. 
Based on this reason, the Appellate Body upheld the panel's finding that the European Union  acted 
inconsistently with  Article 2.2.1.1 by failing to calculate the cost of production of the product under 
investigation on the basis of the records kept by the producers.234 
7.100.   Likewise, in Ukraine – Ammonium Nitrate , the Ministry of Economic Development and Trade 
(MEDT) of Ukraine , responsible for conducting anti -dumping investigation s and review s, reject ed the 
gas cost reflected in the records of the Russian investigated companies because the gas price in the 
domestic Rus sian market was not a market price as the State controlled this price , it was artificially 
lower than the export price of gas from Russia and the price of gas in other countries , and was below 
costs.235 The Appellate Body agreed with the panel in finding th at the MEDT of Ukraine did not 
provide an adequate basis under that second condition of Article  2.2.1.1 to reject the reported gas 
cost. The Appellate Body recalled, in this connection, that the examination under the second 
condition in the first sentence of Article  2.2.1.1 does not concern whether the costs contained in the 
records are not reasonable because, for instance, they are lower than in other countries .236 
7.101.   In our view, the reasons underlying the reject ion of  the recorded costs under the Cost 
Adjustment Methodology are not distinguishable from  those considered in adequate  by the panels 
and the Appellate Body  in EU – Biodiesel (Argentina)  and Ukraine – Ammonium Nitrate  as a basis to 
disregard the recorded costs pursuant to the second conditi on of  Article  2.2.1.1. We recall that, 
under the Cost Adjustment Methodology , the recorded costs of investigated companies are rejected 
from the calculation of the cost of production because of significant input price difference s in the 
domestic and out -of-country markets and  the existence of price regulation in the country of origin  
or other measures that impact the domestic input  price. Our review of the manner in which the 
methodology operates reveals that the decisive factor in rejecting the recorded in put prices is that 
 
227 Case T 235/08, (Exhibit  RUS-12), recitals  34-35. 
228 Case T 118/10, (Exhibit  RUS-29), recitals  35-36. 
229 Case T 459/08, (Exhibit  RUS-14), recitals  55-56. 
230 Case T 84/07, (Exhibit  RUS-13), recitals  42-43. 
231 Case T 111/14, (Exhibit  RUS-38), recital  37. 
232 Panel Report, Ukraine – Ammonium Nitrate, para.  7.69. 
233 Panel Report , EU – Biodiesel (Argentina) , para.  7.299. 
234 Appellate  Body Report, EU – Biodiesel (Argentina) , para.  6.55. 
235 Appellate  Body Report, Ukraine – Ammonium Nitrate, para. 6.100.  
236 Appellate  Body Report, Ukraine – Ammonium Nitrate, para. 6.102.  WT/DS494/R  
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  they are State -regulated and "far below market prices paid in unregulated markets "237, as indicated 
by Russia.  
7.102.   In light of the above, we consider that t he Cost Adjustment Methodology does not provide 
for an analysis pertaining to whether the records kept by the exporter or producer suitably and 
sufficiently "correspond to or reproduce those costs incurred by the investigated exporter or producer 
that have a genuine relationship with the production and sale of the specific product u nder 
consideration".238 Similar to the underlying facts in EU – Biodiesel (Argentina)  and Ukraine – 
Ammonium Nitrate , the Cost Adjustment Methodology  assesses the "reasonableness " of the costs 
reflected in the records kept by the investigated companies themselves  vis-à-vis prices for the 
relevant inputs in what is considered to be unregulated markets . When this comparison reveals a 
significant price difference, the Cost Adjustment Methodology  discards the recorded costs  of the 
investigated companies . In our view, this does not constitute an adequate or sufficient basis under 
the second condition in the first sentence of Article  2.2.1.1 to conclude that  the records of the 
investigated companies do not reasonably reflect the costs associated with the production and sale 
of the product concerned.  
7.103.   We note the European Union's position, based on the terms "normally" and "[f]or the purpose 
of paragraph 2" in the first sentence of  Article  2.2.1.1 , that the two express conditions in th is 
sentence do not exhaust the circumstances in which costs reflected in the records of the producer 
or exporter under investigation may be rejected .239  
7.104.   Russia agrees that, w hen th e two conditions in the first sentence of  Article  2.2.1.1 are met, 
investigating authorities "normally", i.e. as a rule, shall use the records of the exporter or producer 
under the investigation  to calculate costs.  However, Russia maintains that the term " normally" in 
the first sentence of  Article  2.2.1.1  does not incorporate an unlimited derogation  from the obligation  
to use the records of the investigated companies.240 According to Russia, only explicit derogations 
provide the legal basis for an investigat ing authority to use costs other than those incurred by the 
investigated companies in the country of origin.241 Moreover, Russia submits that the introductory 
phrase "[f]or the purpose of paragraph 2" in  Article  2.2.1.1 does not allow for an examin ation of  the 
operation of the market forces of supply and demand  in order to establish normal value.242 However, 
because t he Cost Adjustment M ethodology consists in the rejection of the recorded input prices 
pursuant to the secon d condition  in Article  2.2.1.1 of the Anti -Dumping Agreement, Russia argues 
that a ny attempt by the European Union to rely on the word "normally" to justify a derogation from 
the obligation to use the records of the investigated companies would constitute ex post  facto 
rationalization .243 
7.105.   We agree with Russia that there is no evidence suggesting that the Cost Adjustment 
Methodology is or has been applied through any intention on the part of the European Union to give 
effect to its interpretation of the term "normally" in the first sentence of  Article  2.2.1.1 . We recall 
that, in the European  Commission 's anti -dumping determinations advanced by Russia, the decisive 
factor in rejecting the recorded input prices is that they we re State -regulated and " far below market 
prices paid in unregulated markets ". We understand the European Union to be arguing for purposes 
of this dispute that " distorted" cost information constitutes an "abnormal" circumstance that jus tifies 
the rejection of the costs in application of the term "normally"  within the meaning of  Article  2.2.1.1 
of the Anti -Dumping Agreement. We note that the term "normally" also appears in the first 
subparagraph of  Article  2(5) of the Basic AD Regulation  in a way that corresponds in terms of 
structure a nd meaning to how it is used in  Article  2.2.1.1 .244 However, the anti -dumping 
determinations evidencing the precise content of the Cost Adjustment Methodology do not indicate 
 
237 See para.  7.40 above.  
238 Appellate  Body Report, Ukraine – Ammonium Nitrate, para. 6.97. 
239 European Union's response to Panel question  No. 75, para.  14. 
240 Russia's response to Panel question No. 29(b), paras.  126 and 130 -133; second written submission, 
para. 580.  
241 Russia argues that these derogations are set forth in the Anti -Dumping Agreement, i.e. the second 
Ad Note to Article  VI:1 of the GATT 1994 incor porated by Article  2.7, and in the protocols of accession of 
certain Members which took specific commitment on price comparability in anti -dumping proceedings. 
(Russia's  response s to Panel question No. 29(a), para.  124, question No. 29(b), paras.  131 and 1 33, and 
question No.  29(d), paras.  163-164).  
242 Russia's second written submission, paras.  491-492.  
243 Russia's second written submission, para.  690. 
244 See fn 91 above.  WT/DS494/R  
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  that the European  Commission  relied on the term "normally" in the first subparagra ph of Article  2(5) 
when it rejected the recorded input prices. If the European  Commission  had derogated from the 
requirement in  Article  2(5) that "costs  … shall normally  be calculated on the basis of … records", one 
could have expected to find an explanati on of such derogation in the relevant determinations. 
However, no such explanation is present.   
7.106.   Accordingly, we find that t he anti -dumping determinations evidencing the existence of the 
Cost Adjustment Methodology provide no reasoned and adequate explanation of whether and why 
the fact that the recorded input prices we re State -regulated and " far below market prices paid in 
unregulated markets " constituted a n "abnormal" circumstance or otherwise justified the rejection of 
the recorded costs pursuant to the term "normally"  within the meaning of  Article  2.2.1.1.  On the 
contrary, in our view , the European  Commission 's reasoning in the determinations reproduced a bove 
is best understood to reveal that it applies the Cost Adjustment Methodology to reject recorded cost 
information in reliance on the second condition  of the first subparagraph of  Article  2(5) of the Basic 
AD Regulation. Moreover, as already noted, in the five court judgments advanced by Russia the 
Council of the European Union sought to defend the application of the Cost Adjustment Methodology 
by arguing that it was justified to reject the recorded cost information under the second condition  of 
the firs t subparagraph of  Article  2(5) of the B asic AD Regulation, not the alleged flexibility arising 
out of the term "normally" in the first subparagraph of  Article  2(5) of the Basic AD Regulation . We 
thus do not find it necessary to consider  further whether the two express conditions in the first 
sentence of  Article  2.2.1.1 of the Anti -Dumping Agreement exhaust the circumstances in which costs 
reflected in the records of t he producer or exporter under investigation may be rejected.245 
Conclusi on 
7.107.   In the light of the above, we conclude that the Cost Adjustment Methodology provides for 
the rejection of the costs reflected  in the records of the exporter or producer under investigation in 
a manner  inconsistent with the second condition of the first sentence of  Article  2.2.1.1 of the 
Anti-Dumping Agreement . Therefore, we find that the Cost Adjustment Methodology  of the 
European  Union is inconsistent with the first sentence  of Article  2.2.1.1 of the 
Anti-Dumping  Agreement.  
Whether the Cost Adjustment Methodology is inconsistent with  Article  2.2.1.1 of 
the Anti -Dumping Agreement by providing for the u se of costs other than " the costs 
associated with the production and sale of the product under consideration"  
7.108.   Russia claims  that the Cost Adjust ment Methodology is also inconsistent with the first 
sentence of  Article  2.2.1.1 of the Anti -Dumping Agreement  because it provides for the use of costs 
other than " the costs associated with the production and sale of the product under consideration".246 
The second condition is the source of the language Russia relies on as a basis for its claim . 
7.109.   Russia has indicated that this claim  is independent of its above -mentioned claim  under  
Article  2.2.1.1 , i.e. unrelated to the improper rejection of the costs refl ected in the records of the 
exporter or producer under investigation.247 However, Russia's arguments in support of its 
claim  under  Article  2.2.1.1 appear to focus on the same factual and legal bases as its claim  related 
to the rejection of the producers' records.  Indeed, in explaining this claim  in its first written 
submission, Russia provided a one -paragraph explanation indicating that " [i]n EU – Biodiesel 
(Argentina)  and [EU – Biodiesel] (Indonesia) , the panels and the Appellate Body found that the 
[Europe an Union ] acted inconsistently with  Article  2.2.1.1 of the Anti -Dumping Agreement ".248 The 
paragraphs of the reports referred to by Russia249 contain the panels' and Appellate Body's findings 
in the respective disputes in connection with the rejection of the  records of the investigated 
companies pursuant to the second condition in  Article  2.2.1.1 of the Anti -Dumping Agreement. 
Whether the use of data other than that reflected in the records  of the investigated companies is 
 
245 Accordingly, we find that it is not necessary, for the purpose of this dispute, to provide a full 
interpretation of the first sentence of Article  2.2.1.1 of the Anti -Dumping Agreement, as Russia requests, 
including the terms "[f]or the purpose of par agraph 2" and "normally", and Article  2.2 of the 
Anti-Dumping  Agreement. (Russia's opening statement at the second meeting of the Panel, para.  101).  
246 Russia's first written submission, paras. 21, 405 , and 1258.  
247 Russia's response s to Panel question No.  75, para.  68 and question No. 76, para. 78.  
248 Russia's first written submission, para.  421. 
249 Panel Reports, EU – Biodiesel (Argentina),  paras.  7.249 and 8.1.c.i; EU – Biodiesel (Indonesia), 
paras.  7.27 and 8.1.a; and Appellate Body Report, EU – Biodiesel ( Argentina),  para. 6.57 and 7.2.a . WT/DS494/R  
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  consistent with the first sentence of  Article  2.2.1.1 is a question that is not addressed in these 
paragraphs.  
7.110.   We further note Russia's explanation that its second challenge under the first sentence of  
Article  2.2.1.1 concerns the use of costs that, unlike those reflected in the re cords of the investigated 
companies, have no " genuine relationship with the investigated producer of the product under 
consideration and with the production and sale of the specific product under consideration ".250 
However, in the light of the text of  Article 2.2.1.1  of the Anti -Dumping Agreement and the 
interpretation of this provision by previous panels and the Appellate Body, with which we agree, it 
is not apparent that the first sentence of  Article  2.2.1.1  speaks about the nature of the cost 
information to be used in lieu of the costs reported in the records of the investigated companies . We 
recall that the focus of the second condition in the first sentence of  Article  2.2.1.1 is  the records  of 
the costs kept by the exporter or producer , not the costs per se.251 In our view, o nce the records 
have been rejected as the source of the cost of production for constructing normal value, the 
language in the second condition has no further applicability in respect of the cost  data to be used.  
7.111.   For the above reasons,  we find that Russia's claim  lacks a valid basis in  Article  2.2.1.1 of the 
Anti-Dumping Agreement and we, therefore, dismiss this basis for Russia's claim.  
Whether the Cost Adjustment Methodology is inconsistent with  Article  2.2 of the 
Anti-Dumping Agreement by providing for the use of costs other than " the cost of 
production in the country of origin"  
7.112.   Russia further claims  that the Cost Adjustment Methodology is inconsistent with  Article  2.2 
of the Anti -Dumping Agreement  because, in applying  this methodology, the European  Commission  
uses costs other than " the cost of production in the country of origin" in the construction of normal 
value. As a result , the constructed normal valu e is not based on "the cost of production in the country 
of orig in", as required by  Article  2.2.252 
Main arguments of the parties  
Russia  
7.113.   Russia submits that Article  2.2 of the Anti -Dumping Agreement requires  an investigating 
authorit y to construct normal value on the basis of the cost of production of the product "in th e 
country of origin".253 Russia notes that  Article  VI:1(b)(ii) of the GATT 1994  similarly requires that 
the construction of normal value be on the basis of the cost of production of the product "in the 
country of origin".254 According to Russia, "cost of production" refers to the cost of producing a 
specific product255, i.e. the expenses paid to produce the product under consideration in the country 
of origin .256 In constructing normal value pursuant to  Article  2.2 of the Anti -Dumping Agreement, 
these expenses must reflect "the cost of production in the country of origin".257 
7.114.   Russia recalls that  Article  2.2.1.1 of the Anti -Dumping Agreement identifies the records kept 
by the exporter or producer under investigation as the preferred source for cost of production data 
to be used in such calculation.258 While acknowledging that  Article  2.2 does not limit the sources of 
information that may be used in establishing the costs of production to sources inside the country 
of origin259, Russia maintains that, w hen relying on any out -of-country information , an investigating 
authority must ensure that such information is used to arrive at the cost of production "in the country 
 
250 Russia's response to Panel question No. 75, paras.  75-76. 
251 Appellate Body Report, EU – Biodiesel (Argentina),  para. 6.17. 
252 Russia's first written submission, paras.  425 and 436.  
253 Russia's first written submission, para.  427 (referring to Panel Report, EU – Biodiesel (Argentina),  
para. 7.171).  
254 Russia's first written submission, para.  427. 
255 Russia's first written submissio n, para.  427 (referring to Panel Report, EU – Biodiesel (Argentina),  
para. 7.237).  
256 Russia's first written submission, para.  427 (referring to Appellate Body Report, EU – Biodiesel 
(Argentina),  para. 6.23).  
257 Russia's first written submission, para.  427. 
258 Russia's response to Panel question No. 29(d), para.  155 (referring to Appellate Body Report, EU – 
Biodiesel (Argentina), para. 6.71).  
259 Russia's second written submission, para.  595. WT/DS494/R  
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  of origin ", as provided for in  Article  2.2.260 Russia argues that an investigating authority  is required 
to ensure that any out-of-country information it uses to calculate normal value " reflect s" the cost of 
production in the country of origin.261 Russia asserts that the Appellate Body in EU – Biodiesel 
(Argentina)  made clear that  Article  2.2 does not permit an investigating authorit y to simply 
"substitute " the correctly recorded input cost with the cost data from third countries.262 
7.115.   Russia  claims  that the C ost Adjustment Methodology is inconsistent with  Article  2.2 of the 
Anti-Dump ing Agreement  because, in applying this methodology, the European  Commission  replaces  
the input prices actually paid by the investigated companies reflected in their records with 
out-of-country "surrogate" input prices .263 
7.116.   Russia further argues that, even t hough the "surrogate" input price information does not 
reflect the actual input prices borne by the investigate d companies in the country of origin and is 
unrelated to  the specific product under consideration264, the Cost Adjustment Methodology does not 
ensure that this out-of-country information is adapted to a level that reflects the costs borne by the 
investigated companies "in the country of origin".265 While noting that, in the specific anti -dumping 
determinations, certa in adjustments to the out -of-country input price information are made for 
transport costs, customs export tax, value added tax, excise duty, local distribution costs, sea freight  
and fobbing costs, Russia argues that these adjustments are not sufficient as  they cannot bring the 
surrogate input price to the level that reflects the cost of production in the country of origin .266 
Accordingly, pursuant to the Cost Adjustment Methodology, the European  Commission  fails to arrive 
at "the cost of production in the c ountry of origin" , in contravention of  Article  2.2 of the 
Anti-Dumping  Agreement.  
European Union  
7.117.   Relying on the findings of the Appellate Body in EU – Biodiesel (Argentina) , the 
European  Union submits that an investigating authorit y is permitted under  Article 2.2 of the 
Anti-Dumping Agreement to look for cost of production information from sources outside the country  
of origin , provided it is apt to or capable of yielding a cost of production in the country of origin .267  
7.118.   Without engaging in the specific findings reflected in the anti -dumping determinations  put 
forward by Russia , the European Union asserts that t he process of having recourse to information 
from other representative markets is highly fact -dependent. An investigating authority will consider 
and weigh all available relevant evidence to establish the normal value. Where more than one 
possibility presents itself, an investigating authority will have to base its decision on all the factual 
circumstances of the case at hand.268 Similarly, the process of considering whether or not an 
adjustment is necessary and has been substantiated will also be a highly fact -dependent process. It 
will depend on substantive facts, such as the existence or absence of taxation in the other 
representative mark et. The European Union argues  that it will also depend on the procedural context, 
such as whether or not the justification for and amount of any adjustment claimed has been duly 
substantiated by the interested party making the claim.269 
7.119.   According to the Eur opean Union, the adaptation or adjustment must be made in such a way 
as to ensure a "proper " and "fair" comparison, as provided for in  Articles  2.2 and 2.4 of the 
Anti-Dumping  Agreement. However, the European Union submits,  Article  2.2 cannot be interprete d 
 
260 Russia's response to Panel question No. 29(d), para.  160 (referring to Appellate Body Report, EU – 
Biodiesel (Argentina) , para.  6.82).  
261 Russia's response to Panel question No. 29(d), para.  160. 
262 Russia's response to Panel question No. 29(d), para.  159 (referring to Appellate Body Report, EU – 
Biodiesel (Argentina),  para. 6.73); opening statement at the second meeting of the Panel, para.  98 (referring 
to Appellate Body Report, EU – Biodiesel (Argentina),  para. 6.73)  
263 Russia's first written submission, para.  283.  
264 Russia's first written submission, paras.  430 and 433; op ening statement at the second meeting of 
the Panel, paras.  65 and 85.  
265 Russia's first written submission, para.  433; response to Panel question No. 67, para. 38.  
266 Russia's comments on the European Union's response to Panel question No. 78, para.  59.  
267 European Union's first written submission, para.  119; response to Panel question No. 114, para.  1. 
268 European Union's first written submission, para.  99; opening statement at the first meeting of the 
Panel, para.  17. 
269 European Union's first written submission, para.  100; opening statement at the first meeting of the 
Panel, para.  17. WT/DS494/R  
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  as obliging an investigating authority to make a comparison other than a "proper" and  "fair" 
comparison. In particular, according to the European Union, an investigating authority cannot be 
required to use data that it has already determined is not apt t o ensure a "proper " and "fair" 
comparison.270 That would be incompatible with the very purpose of  Article  2.2, namely to establish 
whether dumping takes place by making a "proper " comparison between the normal value (i.e. a 
value that is "normal " – hence not based on distorted or unreliable info rmation ) and the export 
price.271 
Legal standard  
7.120.   Article  2.2 of the Anti -Dumping Agreement provides:  
When there are no sales of the like pro duct in the ordinary course of trade in the 
domestic market of the exporting country or when, because of the particular market 
situation or the low volume of the sales in the domestic market of the exporting country, 
such sales do not permit a proper compa rison, the margin of dumping shall be 
determined by comparison with a comparable price of the like product when exported 
to an appropriate third country, provided that this price is representative, or with the 
cost of production in the country of origin pl us a reasonable amount for administrative, 
selling and general costs and for profits.272  
7.121.   The expression "cost of production in the country of origin" in Article 2.2 has been understood 
as "a reference to the price paid or to be paid to produce something wit hin the country of origin".273 
7.122.   While pursuant to the first sentence of  Article  2.2.1.1 costs shall normally be calculated on 
the basis of the records kept by the exporter or producer under investigation, in EU – Biodiesel 
(Argentina ), the Appellate Body ruled that Article  2.2 does not prohibit an investigating authority 
from relying on information other than that contained in the records of the exporter or producer, 
including in -country and out -of-country evidence , to calculate some or all such costs .274 In this 
connection, the Appellate Body considered that  Article  2.2 of the Anti -Dumping  Agreement does not 
limit the sources  of information or evidence to only sources inside the country of origin.275 However, 
an investigating authority remains bound by the obl igation to arrive at the cost of production "in the 
country of origin" . Hence, w here an investigating authority uses information other than that 
contained in the records kept by the exporter or producer to construct the cost of production, it has 
to ensure  that the information  is suitable to determine a "cost of production" "in the country of 
origin".276 An investigating authority is not allowed to simply substitute the costs from outside the 
country of origin for the "cost of production in the country of or igin".277 
7.123.   In Ukraine – Ammonium Nitrate , the Appellate Body confirmed that the phrase "cost of 
production in the country of origin" indicates that whatever information or evidence is used to 
determine the "cost of production", it must be apt to yield or cap able of yielding a cost of production 
"in the country of origin" and that c ompliance with this obligation may require the investigating 
authority to adapt that information .278 We agree with the Appellate Body's interpretation of the 
obligation in  Article  2.2 to determine " the cost of production in the country of origin".  
Evaluation by the Panel  
7.124.   Russia has demonstrated that the second element of the Cost Adjustment Methodology 
provides for the use of out-of-country  input price information for the calculation of the costs of 
production of the producer or exporter under investigation. As already noted, following the rejection 
 
270 European Union's r esponse to Panel question No. 29(d), para.  81 (referring to Appellate Body 
Reports, EC – Fasteners (China) (Article 21.5 – China),  para. 5.207; China – HP-SSST (Japan) / China – 
HP-SSST (EU) , para. 5.52).  
271 European Union's closing statement at the first m eeting of the Panel, para.  8. 
272 Fn omitted.  
273 Appellate Body Report, EU – Biodiesel (Argentina) , para. 6.69. 
274 Appellate Body Report, EU – Biodiesel (Argentina) , para. 6.73.  
275 Appellate Body Report, EU – Biodiesel (Argentina) , para. 6.74. 
276 Appellate Body Report, EU – Biodiesel (Argentina) , paras.  6.70 and 6.73 .  
277 Appellate Body Report, EU – Biodiesel (Argentina) , para.  6.73. 
278 Appellate Body Report, Ukraine – Ammonium Nitrate,  para. 6.121 ( referring to EU – Biodiesel 
(Argentina) , para.  6.73). WT/DS494/R  
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  of the input prices reflected in the records of the investigated companies, the European  Commission  
proceeds to "adjust" the ir costs of production. The evidence submitted by Russia shows that such 
adjustments have been made by using information from other markets, which the 
European  Commission  deemed "representative". As noted above, in almost all deter minations, 
the adjusted input price was based on the average price of the relevant input when exported from 
the country of origin to another destination.279 In these cases, the European  Commission  made 
adjustments to the new input price for transport costs,  customs export tax, value added tax, excise 
duty, local distribution costs, sea freight and fobbing costs , in order to remove  export -related and 
transportations expenses.  Russia has further demonstrated that, in applying the Cost Adjustment 
Methodology, t he European  Commission  does not explain whether or how this adapted 
out-of-country input price information reflects or represents the costs of production in the country 
of origin.  
7.125.   As already noted, while  Article  2.2 of the Anti -Dumping  Agreement does not limit the sources 
of information that may be used to calculate the costs of production to only those sources inside the 
country of origin280, an investigating authority remains bound by the obligation to arrive at the cost 
of production "in the country of origin" . This may require it to adapt  the out -of-country information  
in order to ensure that it is suitable to determine a cost of production "in the country of origin" .281 
Compliance with the obligation to adapt information from outside the coun try of origin pursuant to  
Article  2.2 was examined in  EU – Biodiesel (Argentina)  and Ukraine – Ammonium Nitrate . In both 
cases, the Appellate Body confirmed the panels' findings that the respective investigating authorities 
acted in contravention of  Article 2.2 by failing to explain how the information used in its calculations 
was adapted  to ensure that it represented the cost  of production in the country of origin.282 
7.126.   In EU – Biodiesel (Argentina) , following the rejection of the price actually paid by  Argentine 
producers for soybeans  based on a finding that the Argentine export tax system  depressed the 
domestic input price to an artificially -low level, the European  Commission  replaced the actual 
purchase price of soybeans with the average reference pric e of soybeans published by the Argentine 
Ministry of Agriculture for export, net of fobbing costs.283 The Appellate Body found that the 
European  Commission  had failed to meet the relevant standard in the specific anti -dumping 
determination at issue because:  
Other than pointing to the deduction of fobbing costs, the European Union has not 
asserted, either before the Panel or before us, that the EU authorities  adapted, or even 
considered adapting, the information used in their calculation in order to ensure that it 
represented the cost of production in Argentina .284 
7.127.   In Ukraine – Ammonium Nitrate , following the rejection of the reported gas cost of the 
investigat ed Russian producers based on a finding that , inter alia , the price of gas in Russia was 
regulated by the government,  MEDT of Ukraine  replaced the reported gas cost with gas prices outside 
Russia, specifically the price of gas exported from Russia to the G erman border, adjusted for 
transportation expenses  .285 The Appellate Body agreed with the panel that there was no explanation 
of why the adjustment for transportation expenses made to the export price from Russia at the 
German border was sufficient to adapt the export price from Russia to reflect the cost of production 
in the country of origin:  
The Panel did not see any explanation by  MEDT in the Investigation Report as to why 
adjustments for transportation expenses were adequate to adapt the export price from 
Russia at the German border to reflect the cost of the investigated Russian producers 
in the country of origin. The Panel also recalled its earlier finding under the second 
condition in the first sentence of  Article  2.2.1.1, a finding  with which we agreed above. 
Other than pointing to the deduction of transportation expenses, Ukraine has not 
asserted, either before the Panel or before us, that MEDT otherwise adapted the export 
 
279 See para.  7.41 above.   
280 Appellate Body Report, EU – Biodiesel (Argentina) , para. 6.74. 
281 Appellate Body Report, EU – Biodiesel (Argentina) , para. 6.70. 
282 Appellate Body Reports, EU – Biodiesel (Argentina) , para.  6.81; Ukraine – Ammonium Nitrate,  
paras.  6.122 -6.123.  
283 Panel Report, EU – Biodiesel (Argentina) , para.  7.182.  
284 Appellate Body Report, EU – Biodiesel (Argentina) , para.  6.81.  
285 Panel  Report, Ukraine – Ammonium Nitrate,  para. 7.94. WT/DS494/R  
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  price of gas used in its calculations in order to ensure th at it reflected the cost of 
production in Russia.286 
7.128.   We agree with these considerations and find them relevant to our analysis of the consistency 
of the Cost Adjustment Methodology with  Article  2.2. Similar to the facts underlying the 
anti-dumping decisions  in EU – Biodiesel (Argentina)  and Ukraine – Ammonium Nitrate , the Cost 
Adjustment Methodology provides for the calculation of the costs of production of the investigated 
companies on the basis of out-of-country input price information , adjusted for export -related and 
transportation concepts , without establishing whether or explaining how the adjusted out -of-country 
input price information reflects or represents the cost of production in the country of origin. T his 
evidence persuades us that the Cost Adjustment M ethodology  contravenes  Article  2.2. 
7.129.   Regarding the adjustments that should be made in order to arrive at the cost of production 
in the country of origin, we note the European Union's argument  that the deci sion to make 
adjustments or not would depend  on whether such adjustments have been invoked and justified by 
the investigated  companies .287 We do not agree.  Article  2.2 requires investigating authorities to 
calculate the costs of production " in the country o f origin " and , according to Article 2.2.1.1,  this 
obligation "normally " requires the use of the records of the investigated companies  provided that 
the two conditions set out in this provision are met . We consider that, to the extent an investigating 
autho rity bases its calculations on information other than that reflected in the records of the 
investigated companies , it will be required to ensure that adjustments, if necessary, are made in 
order to arrive at the cost of production " in the country  of origin ". We do not consider that compliance 
with this obligation under Article 2.2 is conditioned by  the nature of the requests and participation 
of the investigated  companies in the underlying investigation . 
7.130.   The European Union also asserts that an investigating  authority cannot be required to use 
data that it has already determined is not apt to ensure a "proper " and "fair"  comparison".288 
According to the European Union, t hat would be incompatible with the very purpose of  Article  2.2, 
namely to establish whether dumping takes place by making a "proper comparison " between the 
normal value (i.e.  a value that is "normal " – hence , not based on distorted or unreliable info rmation ) 
and the export price .289 We do not find this argument to be relevant to resolve Russia's claim  in 
relation the Cost  Adjustment Methodology. As we have explained above, the investigating authority 
must provide a reasoned and adequate explanation of how the information used in its calculations 
was adapted to ensure that it repre sented the  cost of production in the country of origin. Whether 
or not specific adaptations are appropriate or inappropriate to ensure the information has been 
properly adapted would be the subject of such explanation.290 
Conclusion  
7.131.   In light of the above, w e conclude that the Cost Adjustment Methodology , by providing for 
the use of out-of-country input price information , without establishing whether or explaining how 
such information is adequate to reflect or represent the cost of production in the country o f origin, 
contravenes  Article  2.2 of the Anti -Dumping Agreement.  
 
286 Appellate Body Report, Ukraine – Ammonium Nitrate, para. 6.122.  (fns omitted)  
287 European Union's first written submission, para.  100; opening statement at the first meeting of the 
Panel, para.  17. 
288 Europe an Union's response to Panel question No. 29(d), para.  81. 
289 European Union's closing statement at the first meeting of the Panel, para.  8. 
290 Moreover, we asked the European Union to explain why the cited references to the Appellate Body's 
statements in EC – Fasteners (China) (Article 21.5 – China) and China – HP-SSST (Japan) / China – HP-SSST 
(EU) are relevant to the Panel's assessment of Russ ia's claim  under Article  2.2 of the 
Anti-Dumping  Agreement, considering that the European Union does not treat Russia as an NME country 
(unlike the relevant facts underlying EC – Fasteners (China) (Article 21.5 – China)) and that the present 
dispute does n ot deal with SG&A (unlike the relevant facts underlying China – HP-SSST (Japan) / China – HP-
SSST (EU) ). The European  Union reiterated that these cases "confirm [its] more general argument" that an 
investigating authority cannot be required to use data tha t it has already determined is not apt to ensure a 
proper and fair comparison" . (European Union's response to Panel question No. 77, paras.  15-17). However, 
the European Union failed to explain how the disputes it cites support the claim  that an investigat ing authority 
cannot use data that it has already rejected, especially given the substantive differences between the Cost 
Adjustment Methodology and the facts underlying these disputes.  WT/DS494/R  
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  7.3  Russia's claim  concerning the first subparagraph of  Article  2(3) of the 
Basic  AD Regulation  
Introduction  
7.132.   Russia asserts that the first subparagraph of  Article  2(3) of the Basic AD Regulation  requires 
that, in calculati ng a normal value on the basis of the cost of production, only "representative" prices 
shall be used .291 Russia further asserts that EU authorities understand "representative" prices to 
mean those unaffected by "distortions" due to government regulation.292 Russia claims  that this 
measure is, therefore, inconsistent "as such"  with Article  2.2 of the Anti -Dumping Agreement .293 
7.133.   The first subparagraph of  Article  2(3) of the Basic AD Regulation  provides:  
When there are no or insufficient sales of the like product in the ordinary course of 
trade, or where, because of the particular market situation, such sales do not permit a 
proper comparison, the normal value of the like product shall be calculated on the basis 
of the cost of production in the country of origin plus a reasonable amount for selling, 
general and administrative costs and for profits, or on the basis of the export prices, in 
the ordinary course of trade, to an appropriate third country, provide d that those prices 
are representative.  
7.134.   Russia's challenge is grounded in its assertion that the final part of the first subparagraph of 
Article  2(3), " provided that those prices are representative ", applies to and conditions not only the 
prior term "expor t prices", but also applies to and conditions the more removed term "cost of 
production" . In order to prevail on this claim, Russia must demonstrate that the content of the 
measure is, as matter of fact, as Russia has alleged. We recall in this regard that "[a] party asserting 
that another party's municipal law is inconsistent 'as such ' with relevant WTO obligations bears the 
burden of introducing evidence as to the meaning of such law to substantiate that assertion ".294 
Because WTO Members are presumed to have enacted their laws in good faith, a complaint against 
a Member's legislation " as such" is considered to be a "serious challenge".295 
7.135.   When a municipal law is challenged "as such ", the starting point for the analysis will be the 
text of that  municipal law, on its face.296 A complainant  may, therefore, seek to support its 
understanding of the meaning of the municipal law on the basis of the text of that municipal law 
only.297 A complainant may also seek to support its understanding of the meaning of the municipal 
law at issue with additional elements , including " evidence of the consistent application of such laws, 
the pronouncements of domestic courts on the meaning of such laws, the opinions of legal experts 
and the writings of recognized scholars ".298 Where a Member's municipal law is challenged "as such", 
our responsibility  is to examine the meaning and scope of the municipal law at issue to make an 
objective assessment of the matter.299 Accordingly, our analysis of this claim  begins with the 
weighing of the evidence before us to a ssess whether the first subparagraph of  Article 2(3) of the 
Basic AD Regulation  has the content that Russia alleges. In particular, we assess whether or not the 
evidence demonstrates that the phrase " provided that those prices are representative " applies to 
and conditions the term "cost of production ". 
Whether the first subparagraph of  Article  2(3) of the Basic AD Regulation  requires 
that, in the construction of normal value, only "representative" prices shall be used  
7.136.   In this section , we briefly summarize the arguments of each party as they pertain to the 
assessment of the evidence presented as it relates to the alleged meaning of the first subparagraph 
 
291 Russia's first written submission, paras. 62 -90 and 109.  
292 Russia's  first written submission, paras. 89 -90. 
293 Russia's first written submission, paras. 89 -110. 
294 Appellate Body Report, EU – Biodiesel (Argentina) , para.  6.156 (referring to Appellate Body Report, 
US – Carbon Steel , para.  157).  
295 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , paras.  172-173. 
296 Appellate Body Report, US – Corrosion -Resistant Steel Sunset Review , para.  168. 
297 Appellate Body Report, EU – Biodiesel (Argentina) , para.  6.156.  
298 Appellate Body Report, US – Countervailing and Anti -Dumping Measures (China) , para.  4.100 
(quoting Appellate  Body Report, US – Carbon Steel , para.  157).  
299 Appellate Body Report, EU – Biodiesel (Argentina) , para.  6.201 (referring to Appellate Body Reports,  
US – Countervailing and Anti -Dumping Measures (China) , para.  4.98; US – Carbon Steel (India) , para.  4.445).  WT/DS494/R  
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  of Article  2(3) of the Basic AD Regulation , and we then proceed to examine and assess t he relevant 
evidence.  
7.137.   Russia notes that the first subparagraph of Article  2(3) of the Basic AD Regulation  describes 
two alternative methods to determine normal value (a) the cost of production in the country of 
origin ; and (b) the export prices, in the ord inary course of trade, to an appropriate third country . 
Russia reads the phrase " provided that those prices are representative " in the final part of the first 
subparagraph of Article  2(3) as setting out a requirement, i.e. that "prices" are "representative ", 
applicable to both alternative methods.300 
7.138.   The European Union argues that Russia's affirmations about the scope and meaning of the 
phrase " provided that those prices are representative " in the first subparagraph of  Article  2(3) are 
incorrect  as a matter of fact; the term "those prices" in  Article  2(3) of the Basic AD Regulation  refers 
back to the only other instance in  Article  2(3) in which the term "prices" is used, that is, it refers to 
the "export prices".301 The European Union asserts that Russia is unable to demonstrate that the 
phrase  "provided that those prices are representative " in Article  2(3) refers to anything other than 
the "export prices ".302 
7.139.   Russia's claim  in relation to the first subparagraph of Article  2(3) of the Basic AD 
Regulation  is grounded on the allegation that the final part of this provision – "provided that those 
prices are representative " – requires  the "cost of production in the country of origin" to be 
"representative " in order to be used in the construction of normal value . Acco rdingly, the threshold 
question we address in respect of this claim  is whether or not Russia has established that the final 
part of the challenged provision is applicable to the "cost of production in the country of origin ". 
Russia draws support for its characterization of the final part of the first subparagraph of Article  2(3) 
from (a) the text of this provision, its historical development and the ordinary meaning of the terms 
used; (b) a statement made by the Commission of the European Communities in 2002 ; and 
(c) certain additional evidence concerning the meaning of the term "representative" including other 
provisions of the Basic AD Regulation, recitals 3 and 4 of Regulation 1972/2002, the practice of 
application of the re levant norms by the EU authorities , and judgments by the General Court of the 
European Union . We proceed to assess each of these categories of evidence.  
Text 
7.140.   Russia draws support for its  position concerning the scope of the last part of the first 
subparagr aph of Article  2(3) from the dictionary meaning of the term "those" and the placement 
of the phrase " provided that those prices are representative " in Article  2(3): after describing both  of 
the alternative methods to determine normal value ( "the cost of pr oduction" and "the export 
prices" ).303 
7.141.   As to the meaning of the term "those", Russia notes that "those" , which precedes the word 
"prices", " is used , inter alia , to refer to 'things or persons pointed to or already mentioned '"304, "in 
opposition to this: prop erly denoting the more distant of two things".305 Russia notes that, in 
contrast, the word "these" is used to refer to "things or persons present or near (actually, or in 
thought, esp. as having just been mentioned)"306 and refers to "the nearer of two thing s close to the 
 
300 Russia's first written submission, paras. 61 -64. 
301 European Union's first written submission, paras.  51-52. 
302 European Union's opening statement at the first meeting of the Panel, para.  5. 
303 Russia's opening statement at the first meeting of the Panel, para.  10; response to Panel question 
No. 1, paras.  3 and 5; and second written submission, para.  23. 
304 Russia's first written submission, para.  65 (quoting Oxford Dictionaries online, definition of "those"  
http://www.oed.com/view/Entry/201046?redirectedFrom=those&  (accessed 2 1 March  2019), (Exhibit  RUS-55, 
meaning I.2.a .)). 
305 Russia's first written submission, para.  65 (quoting Oxford Dictionaries online, definition of "that" 
http://www.oed.com/view/Entry/200177  (accessed 21 March 2019 ), (Exhibit  RUS-47, meaning II.B.2.a.)).  
306 Russia's first written submission, para.  65 (quoting Oxford Dictionaries online, definition of "these" 
http://www.oed.com/view/Entry/ 200651?result=2&rskey=Oa3AQE&  (accessed 21 March 2019), 
(Exhibit  RUS-54), meaning II.3.a.)  WT/DS494/R  
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  speaker".307 For Russia, the pronoun "those" in its scope is wider than the pronoun "these"308, thus 
covering "all available options" in the context of the first subparagraph of Article  2(3): the cost of 
production and the export prices.309  
7.142.   Russia notes that in 1995 the European Union changed the original language of the provision, 
from "provided that  these  prices are representative" to "provided that those prices are 
representative".310 Based o n the alleged dichotomy of the terms "these" and "those", Russia argues 
that this legislative change has very "concrete implications " for the scope of the challenged provision  
and evidences the European Union's deliberate311 intention to extend the "represe ntative" 
requirement to both the cost of production and the export prices. According to Russia, i f the word 
"prices" were intended to refer only to export prices, it would be more appropriate to use the pronoun 
"these" as the plural form of "this" that "re fers to the nearer of two things close to the speaker".   
7.143.   As to the placement of the phrase " provided that those prices are representative ", Russia 
notes that in Article  2.2 of the Anti -Dumping Agreement the phrase "provided that this price is 
representative" is placed after the words "a comparable price of the like product when exported to 
an appropriate third country" and before the words "the cost of production in the country of origin ", 
i.e. making it clear that the requirement applies to the export price only.312 For Russia, t his difference 
results in  a different interpretation "when the pronoun of the corresponding provisions is changed ". 
7.144.   The starting point for the analysis of the mea ning of a provision of municipal law is the text 
of that municipal law, on its face .313 Thus, we examine , based on the text of  Article  2(3) on its face , 
whether the phrase " provided that those prices are representative " applies to the cost of production. 
We take note of Russia's arguments that Article  2(3) used to include different terminology and that 
Article  2.2 of the Anti -Dumping Agreement is structured in a different manner. These arguments, 
however, are of a different character than, and are assessed differently than, the evidence offered 
by the text of the challenged measure itself which, as noted, is the starting point of our analysis.  
7.145.   We observe that t he dictionary definitions submitted by Russia  show that the term "those" 
has two usages : as a demonstrative  pronoun314 and as a demonstrative  determiner.315 As a 
demonstrative pronoun, the term "indicat[es] things or persons pointed to or already mentioned", 
as observed by Russia.  Under this meaning, "those" is a pronoun that replaces  a noun, sta nding on 
its own. As a demonstrative  determiner, the term indicates "things or persons as known to be such 
as described"316 and "designat[es] the persons or things indicated".317 Under this meaning, "those" 
introduces  the noun, without replacing it. In the l ast part of the first subparagraph of  Article  2(3), 
the word "those" is followed by the word "prices". The usage of "those prices" in the text of this 
provision we find to be consistent with the meaning of "those" used as a demonstrative determiner, 
i.e. w ith the purpose of indicating or introducing the word "prices" . We observe that t he only other 
instance in which the term "prices" is used in the first subparagraph of Article  2(3) is when referring 
to the second alternative method to determine normal valu e: "the export prices , in the ordinary 
 
307 Russia's first written submission, para.  64 (quoting New Oxford American Dictionary , 3rd edn, 
A. Stevenson and C. A. Lindberg (ed.), (Oxford University Press, 2011 ), definition of "this", (Exhibit  RUS-53), 
p. 1) 
308 Russia's response to Panel question No. 1, para.  7. 
309 Russia's first written submission, para.  65. 
310 Russia's first written submission, paras.  36-39. 
311 Russia's response to Panel question No. 1, para.  6. 
312 While the text of the first subparagraph of Article  2(3) of the Basic AD Regulation  is almost identical 
to the text of Article  2.2 of the Anti -Dumping Agreement, when describing the alternative methods to 
determine normal value, Article  2.2 first presents  the export price to an appropriate third country and then the 
cost of production in the country of origin.  
313 Appellate Body Report, US – Corrosion -Resistant Steel Sunset Review , para.  168. 
314 Oxford Dictionaries online, definition of "those" 
http://www.oed.com/view/Entry/201046?redirectedFrom=those&  (accessed 21 March 2019), (Exhibit  RUS-55), 
meaning I.  
315 Oxford Dict ionaries online, definition of "those" 
http://www.oed.com/view/Entry/201046?redirectedFrom=those&  (accessed 21 March 2019), (Exhibit  RUS-55), 
meaning II.  
316 Oxford Dictionaries on line, definition of "those" 
http://www.oed.com/view/Entry/201046?redirectedFrom=those&  (accessed 21 March 2019), (Exhibit  RUS-55), 
meaning II.6.b.  
317 Shorter Oxford English Dictio nary, 6th edn, A. Stevenson (ed.) (Oxford University Press, 2007), 
Vol. 2, p. 3245.  WT/DS494/R  
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  course of trade, to an appropriate third country ". We find the text's use of the term "export prices" 
followed by the term "those prices" establishes within the meaning of the first subparagraph of 
Article  2(3) a clear linkage between the phrase requiring that prices be representative and the 
second met hodology for determining normal value, which is based on export prices. In our 
assessment, the text of the first subparagraph of Article  2(3) itself supports the understanding of 
the term "those" as only designat ing the noun that follows ("prices"), as ass erted by the 
European  Union.318 
7.146.   When describing the first methodology  to determine normal value , the first subparagraph of 
Article  2(3) refers to "the cost of production  in the country of origin plus a reasonable amount for 
selling, general and administrati ve costs and for profits ". Thus, the clear linkage on the basis of the 
term "prices" is absent from the first method for determining normal value. This difference is 
reinforced by the fact that the structure of the first subparagraph of Article  2(3) establ ishes the first 
and second methodologies for determining normal value as alternatives, the first on the basis of 
costs of production and the second on the basis of export prices. Considering this structure, the use 
of the term "those prices" would be an il logical choice for a drafter intending to make reference to 
both alternative methods for determining normal value. A better formulation, if that was the 
intention, could have been for instance: "provided that those costs or prices are representative ". 
Thus, we do not find that the text itself supports a reading of the phrase "provided that those prices 
are representative" as covering "all available options"  as Russia suggests.319  
7.147.   The fact that the phrase "provided that those prices are representative" is placed at the end 
of the first subparagraph of Article  2(3) does not , by itself, mean that this phrase covers both 
method s mentioned in that subparagraph . In our view , the fact that the challenged phrase is placed 
at the end of the sentence indicates that it  relates to the method presented in the second instance: 
"export prices  … to an appropriate third country".  
7.148.   In support of its reading of the challenged provision, the European Union has submitted the 
French and Spanish versions of the 1995 amendment. Because both versions use the "same term" 
("ces prix" in French and " estos  precios" in Spanish), the European Union argues that any change 
made to the original language of the last part of the first subparagraph of Article  2(3) " ha[d] no 
impact whatsoever on the meaning of the provision ".320  
7.149.   Our review of the Spanish version confirms that the co ndition to use "representative" prices 
exclusively applies to the determination of normal value based on export prices to a third country. 
In the Spanish version, Article  2(3) consists not of one but of two sentences. The first sentence 
provides that, in the circumstances specified therein, normal value is to be determined based on the 
cost of production in the country of origin plus a reasonable amount for  selling, general and 
administrative costs and for profits . The second sentence provides that normal value may be also 
calculated based on export prices to an appropriate third country in the ordinary course of trade, 
"provided that such prices are represe ntative ".321  
7.150.   In the light of the above , we find that the text of the first subparagraph of Article  2(3) does 
not support reading the term " those prices" in the phrase "provided that those prices are 
representative" in the first subparagraph of Article  2(3) as cover ing both "the export prices " and 
"the cost of production in the country of origin ". Thus, we find that the text of the first subparagraph 
of Article  2(3) does not support Russia's claim regarding the scope of this provision.  Indeed, we find 
that t he text is contrary to Russia's reading of the provision. Moreover, we find that the text of the 
first subparagraph of Article  2(3) is clear in this respect, and we assign substantial probative value 
to this finding. With this understanding of the text as evidence of the content of the challenged 
 
318 European Union's first written submission, para.  49. 
319 Russia's first written submission, para.  65. 
320 European Union's response to Panel question No. 2, para.  3. 
321 The Sp anish version of the first subparagraph of Article  2(3) reads:  
Cuando, en el curso de operaciones comerciales normales, no existan ventas del producto similar 
o estas sean insuficientes, o cuando, debido a una situación especial del mercado, dichas ventas  
no permitan una comparación adecuada, el valor normal del producto similar se calculará sobre la 
base del coste de producción en el país de origen más una cantidad razonable en concepto de 
gastos de venta, generales y administrativos y en concepto de bene ficios. También podrá calcularse 
utilizando los precios de exportaciones realizadas a un tercer país apropiado en el curso de 
operaciones comerciales normales y siempre que estos precios sean representativos.  WT/DS494/R  
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  measure in mind, we proceed to examine and weigh the remaining evidence advanced by Russia in 
support of its alleged content for the challenged measure.  
Statement by the European  Commission  
7.151.   Russia argues that the following statement made by the European  Commission  to the Council 
of the European Union confirms that the EU authorities disregard , from the determination of normal 
value actually incurred , certain costs of production on the grounds  that they are not "representative" , 
pursuant to the first subparagraph of Article  2(3): 
Information collection  
With regard to anti -dumping and anti -subsidy investigations in which use will likely be 
made of the new provisions of paragraphs 3 and 5 of  Article 2 of Regulation  (EC) 
No 384/96 and  Article  6(2) of Regulation  (EC) No  2026/97, which are inserted into 
these Regulations by the present Council Regulation, the Commission Services will, at 
the beginning of an investigation, request information not only  from parties concerned 
but also from other relevant sources. The complainant and all other parties concerned 
will also be invited to suggest possible relevant sources. The information obtained in 
response to such requests will be used to assess whether or  not prices and costs 
reported by exporters or producers under investigation are distorted within the meaning 
of the aforementioned amendments.  
7.152.   The statement is reflected in a document dated 16 October 2002 from the Working Party on 
Trade Questions to the Permanent Representatives Committee – Council, which concerns two 
legislative proposals to amend Regulation  384/96  (the Basic AD Regulation ) and Regulation  2026/97  
(the Basic Anti -Subsidy Regulation). The first proposal provided for clarifications to the B asic AD 
Regulation  and the second proposal provided for the repeal or amendment of certain rules in the 
Basic Anti -Subsidy Regulation.322 
7.153.   Russia argues that t he statement supports Russia's position that the phrase "provided that 
those prices are representat ive" applies to the cost of production.  Russia claims  that the provisions 
introduced by the amendments (the second subparagraph of  Article  2(3) and the second 
subparagraph of  Article  2(5)) connect with the first subparagraph of Article  2(3), and the statement 
indicates that the information obtained by EU authorities will be used to assess "whether or not 
prices and costs reported by exporters or producers under investigation are distorted w ithin the 
meaning of the aforementioned amendments ".323 According to Russia, this shows that the cost of 
production must  allegedly be undistorted in order to be used to determine normal value.  In other 
words, Russia considers that the reference in the state ment to an assessment of whether or not 
"prices and costs … are distorted" describes the application to the cost of production of the 
"representative" requirement found in the first subparagraph of Article  2(3), and that this statement 
equates costs with p rices.324 
7.154.   We observe that the statement concerns the collection of information in both anti -dumping 
and anti -subsidy proceedings pursuant to the amendments introduced in the "new provisions" and 
the use of such information by the EU authorities. The statement does not mention the first 
subparagraph of  Article  2(3) or the phrase " provided that those prices are rep resentative". 
Additionally, the statement does not indicate that  the first subparagraph of  Article  2(3) contains a 
requirement that costs of production be "representative" in order to be used to determine normal 
value. Neither does the statement demonstrat e that, in such a context, "undistorted" has the 
meaning "representative".  For these reasons, we find that the statement by the 
European  Commission  does not  weigh in favour of Russia's reading of the content of the first 
subparagraph of  Article  2(3).325  
 
322 Statements dated 16 October 2002, "Statements  by the Commission to the Council Minutes", 
Annex  No. 11510/02, (Exhibit  RUS-9), p.  1. 
323 Russia's first written submission, para. 67; response to Panel question No. 3, paras. 11 -17. 
324 Russia's response to Panel question No. 3, paras. 11 -17. 
325 In the light of this, we do not find it necessary to address the parties' opposing arguments on 
whether the statement by the Commission of the European Communities carries interpretative weight in 
respect of the related provision of the Basic AD Regulatio n. WT/DS494/R  
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Provisions of the Basic AD Regulation  
7.155.   Russia refers the Panel to the s econd subparagraph of  Article  2(3), Article  2(2) and the 
second subparagraph of  Article  2(5) arguing that the term "representative" used through the se 
provisions  of the Basic AD Regulation  "impl[ies] identical meaning and application of this term ".326 
7.156.   The s econd subparagraph of  Article  2(3) provides:  
A particular market situation for the product concerned within the meaning of the first 
subparagraph may be deemed to exist, inter alia, when prices are artificially low, when 
there is significant barter trade, or when there are non -commercial processing 
arrangements.  
7.157.   Russia argues that this provision, read in the light of the first subparagraph of Article  2(3), 
reveal s that "artificially low prices" would not be accepted as "representative".327 
7.158.   We read the s econd subparagraph of  Article  2(3) as clarifying circumstances that may be 
considered  by the investigating authorities as constituting a "particular market situation ", indicating 
that one such circumstance is when prices are "artificially low". "Particular market situation" is 
referenced in the first part of the first subparagraph of Article  2(3) and relates to the circumstances 
in which the normal value shall be dete rmined based on alternative methods. As such, we find that 
the second subparagraph of Article  2(3) is limited in scope to clarifying the term "particular market 
situation", and does not inform or clarify the content of the challenged provision which descri bes the 
two alternative methods for determining normal value and concludes with the "representative" 
requirement relevant to this claim . In other words, the second subparagraph of Article  2(3) relates 
to the conditions that may indicate that a particular m arket situation exists such that domestic sales 
of the like product may be disregarded as the basis for normal value. It does not say anything about 
how alternative methods for determining normal value are to be implemented, which is the subject 
of the cur rent claim. Thus, we do not consider that the second subparagraph of Article  2(3), including 
the reference therein to "artificially low" prices, informs whether the phrase "provided that those 
prices are representative" applies to the cost of production wi thin the meaning of the challenged 
measure. For these reasons, we find that the second subparagraph of  Article  2(3) does not  weigh in 
favour of Russia's reading of the content of the first subparagraph of  Article  2(3). 
7.159.   Article 2(2) of the Basic AD Regulati on provides:  
Sales of the like product intended for domestic consumption shall normally be used to 
determine the normal value if such sales volume constitutes 5% or more of the sales 
volume of the product under consideration to the Union. However, a lower volume of 
sales may be used when, for example, the prices charged are considered representative 
for the market concerned .328 
7.160.   Russia argues that the reference to prices "representative" for the market concerned, 
together with the fact that the challenged provision comes right after  Article  2(2), suggests that the 
first subparagraph of Article  2(3) requires EU authorities to examine the "representativeness" of 
costs of production.329 Article  2(2) provides that a low volume of domestic sales might be considered 
sufficient when "the prices charged are considered representative for  the market concerned" . This 
provision informs a decision about whether a low volume of domestic sales relative to export sales 
may be relied  upon for the purpose of determining normal value, such that resort to alternative 
methods of determining normal value would not be necessary. Thus, Article  2(2) does not speak to 
the costs of production that may be used to determine a constructed normal v alue, nor whether 
those costs are required to be "representative" in the meaning of the first subparagraph of 
Article  2(3). For these reasons, we find that Article  2(2) does not  weigh in favour of Russia's reading 
of the content of the first subparagraph o f Article  2(3). 
7.161.   The second subparagraph of Article  2(5) of the Basic AD Regulation  provides:  
 
326 Russia's first written submission, paras. 71 -72. 
327 Russia's first written submission, paras.  68-69. 
328 Emphasis added.  
329 Russia's first written submission, para.  71. WT/DS494/R  
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  If costs associated with the production and sale of the product under investigation are 
not reasonably reflected in the records of the party concerned, they shall be adjusted 
or established on the basis of the costs of other producers or exporters in the same 
country or, where such information is not available or cannot be used, on any other 
reasonable basis, including information from other representative markets .330 
7.162.   Russia argues that the word "representative" is also used in the second subparagraph of  
Article  2(5), "implying identical meaning and application of this term".331 The second subparagraph 
of Article  2(5) relates to the source of information to be used for  costs associated with the production 
and sale of the product under consideration. This provision does not require that costs of production 
be "representative". On the contrary, this provision indicates that costs "reasonably reflected in the 
records of th e party concerned" are useable without reference to a "representativeness" condition. 
In this provision the term "representative" is applied to condition the market  which may be a source 
of substitute cost information when records of the party and other so urces in the same country have 
been rejected. This is in contrast to the meaning and application of the phrase "provided those prices 
are representative" as used in the first subparagraph of Article  2(3). For these reasons, we find that 
the second subparag raph of Article  2(5) does not  weigh in favour of Russia's reading of the content 
of the first subparagraph of  Article  2(3).  
Recitals of Regulation  1972/2002 and Regulation  2017/2321  
7.163.   Russia also refers the Panel to two EU Regulations in support of its interpretation of the word 
"representative" in the first subparagraph of Article  2(3).  
7.164.   Russia  argues that recital 3  of Regulation 1972/2002  indicates that only world -market prices 
and prices in those markets in which they reflect supply and demand, i.e. w ithout state regulation 
"market impediments" or "distortions", will be viewed by the E uropean Union as "representative" for 
purposes of  Article 2(3) of the Basic Regulation.332 Recital 3 of Regulation  1972/2002 provides:  
Article 2(3) of Regulation  (EC) No 384/96 stipulates, inter alia, that where because of a 
particular market situation sales of the like product do not permit a proper comparison, 
the normal value is to be calculated on the basis of the cost of production in the country 
of origin plus a reas onable amount for selling, general and administrative costs and for 
profits, or on the basis of the export prices, in the ordinary course of trade, to an 
appropriate third country provided that those prices are representative. It is prudent to 
provide for a clarification as to what circumstances could be considered as constituting 
a particular market situation in which sales of the like product do not permit a proper 
comparison. Such circumstances can, for example, occur because of the existence of 
barter -trade and other non -commercial processing arrangements or other market 
impediments. As a result market signals may not properly reflect supply and demand 
which in turn may have an impact on the relevant costs and prices and may also result 
in domestic price s being out of line with world -market prices or prices in other 
representative markets. Obviously, any clarification given in this context cannot be of 
an exhaustive nature in view of the wide variety of possible particular market situations 
not permitting  a proper comparison.333 
7.165.   Russia argues that recital 4  of Regulation 1972/2002  indicates that only when prices are not 
affected by "market impediments" or "distortions" and are "in line with world -market prices or prices 
in other representative markets"  will the European Union treat prices as "representative" being the 
indicators of "representative" markets.334 Recital 4 of Regulation  1972/2002 provides : 
It is considered appropriate to give some guidance as to what has to be done if, pursuant 
to Article  2(5) of Regulation  (EC) No 384/96, the records do not reasonably reflect the 
costs associated with the production and sale of the product under consideration, in 
 
330 Emphasis added.  
331 Russia's first written submission, para.  72 (referring to Council resolution of 8 June 1993, 
(Exhibit  RUS-10), para. 3: "the various provisions of the acts should be consistent with each other; the same 
term should be used throughout to express a given co ncept") .  
332 Russia's first written submission, para. 74.  
333 Regulation 1972/2002, (Exhibit RUS -3). 
334 Russia's first written submission, para. 76.  WT/DS494/R  
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  particular in situations where because of a particular market situation sales of the like 
product do not permit a proper comparison. In such circumstances, the relevant data 
should be obtained from  sources which are unaffected by such distortions. Such sources 
can be the costs of other producers or exporters in the same country or, where s uch 
information is not available or cannot be used, any other reasonable basis, including 
information from other representative markets. The relevant data can be used either 
for adjusting certain items of the records of the party under consideration or, wh ere this 
is not possible, for establishing the costs of the party under consideration.335 
7.166.   Russia also draws support for its reading of the term "representative" from recitals 5 and 6 
of Regulation  2017/2321 . As already noted, Regulation  2017/2321 is an inst rument recently enacted 
by the European Union, which sets out new rules for establishing normal value in case of "significant 
distortions" in the market of the exporting country.336 Russia  argues  these recitals confirm that the 
adjective "representative" in  the phrases "representative markets" and "representative countries" in 
the context of the Basic AD Regulation refer s to markets and countries without distortions and hence 
different from "the exporting country" where  such alleged "distortions" are found t o cause "artificially 
low" prices.337 Recitals 5 and 6 of Regulation  2017/2321 provide, respectively:  
Costs are normally calculated on the basis of records kept by the exporter and producer 
under investigation. However, where there are direct or indirect s ignificant distortions 
in the exporting country with the consequence that costs reflected in the records of the 
party concerned are artificially low, such costs may be adjusted or established on any 
reasonable basis, including information from other repres entative markets or from 
international prices or benchmarks. Domestic costs may also be used, but only to the 
extent that they are positively established not to be distorted, on the basis of accurate 
and appropriate evidence.  
When data are sourced in repre sentative countries and the Commission has to establish 
whether the level of social and environmental protection in such countries is adequate, 
it is necessary for the Commission to examine whether those countries comply with core 
[International Labour Organization]  and relevant multilateral environmental 
conventions.  
7.167.   None of the recitals cited by Russia refers to the challenged provision or to the alleged 
requirement that costs of production be "representative" in order to be used in the construction of 
normal value. Rather, they refer to, clarify, or amend other provisions of the Basic AD Regulation. 
Therefore, the recitals do not weigh in favour of reading the phrase "provided those prices are 
representative" in the final part of the first subparagraph  Article 2(3) as referring to "the cost of 
production in the country of origin" in that same provision, or that pursuant to that phrase , the first 
subparagraph of  Article  2(3) requires that such "cost of production" be "representative".  
Practice of the EU aut horities in anti -dumping proceedings  
7.168.   Russia argues that the European  Commission 's practice in applying the term "representative 
markets" in connection with Article 2(5) of the Basic AD Regulation informs the meaning of the term 
"representative" as used in the first subparagraph of Article 2(3).338 In its first written submission, 
Russia referred the Panel to the following four determinations made by the European  Commission  in 
anti-dumping proceedings: Regulation  661/2008 ; Regulati on 812/2008 ; Regulation  236/2008  and 
Regulation  1256/2008 .339 These determinations concern the application of the second subparagraph 
of Article  2(5) – including the identification of "representative markets", rather than the application 
of the first subpar agraph of Article  2(3) and the phrase "provided that those prices are 
representative". Following the first substantive meeting, Russia referred the Panel to 12 additional 
 
335 Regulation 1972/2002, (Exhibit RUS -3). 
336 Regulation  2017/2321, (Exhibit  RUS-11). 
337 Russia's first written sub mission, paras. 77 -78. 
338 Russia's first written submission, paras. 80 -86. 
339 Russia's first written submission, paras.  80-86 (referring to Regulation 661/2008 , (Exhibit RUS -15), 
Regulation 812/2008 , (Exhibit RUS -16), Regulation  236/2008 , (Exhibit RUS -17), and Regulation 1256/2008 , 
(Exhibit RUS -18). WT/DS494/R  
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  determinations.340 Again, none of these determinations concern the application of the first 
subparagraph of Article  2(3) and the phrase "provided that those prices are representative". For 
these reasons, we find that the cited determinations do not  weigh in favour of Russia's reading of 
the content of the first subparagraph of  Article  2(3). 
General Court of the European Union  judgements  
7.169.   Russia refers the Panel to three judgements of the General Court of the European Union.341 
The judgements concern the interpretation and application of the second subparagraph of 
Article  2(5), rather than the application of the first subparagraph of Article  2(3) or the scope of the 
phrase "provided that those prices are representative". For th is reason, we find that the cited 
judgements do not  weigh in favour of Russia's  reading of the  content of the first subp aragraph of  
Article  2(3). 
Conclusion  
7.170.   In the light of the above review of the parties' submissions and our consideration of all the 
relevant evidence before us, we consider that the evidence does not support Russia's reading of the 
content of the first subp aragraph of Article  2(3) of the Basic AD Regulation. Accordingly, we find 
that the evidence does not support, and  therefore Russia has failed to demonstrate , that the first 
subparagraph of Article  2(3) of the Basic AD Regulation  requires that only "represe ntative" prices 
be used in the construction of normal value of the like product. Indeed, on the basis of our 
examination of the relevant evidence on the record before us, we conclude as a factual matter, that 
the challenged measure does not have the conten t Russia has alleged it to have. Russia bears the 
burden of proving that the challenged measure has the content that is alleged to be inconsistent 
with the Anti -Dumping  Agreement. As such, Russia's claim  in respect of this challenged measure 
must fail. Acc ordingly, we do not consider it necessary to further examine additional aspects of 
Russia's "as such" claim  in respect of the first subparagraph of Article  2(3). 
7.4  Russia's claims  concerning the second subparagraph of  Article  2(3) of the 
Basic  AD Regulation  
Introduction  
7.171.   Russia claims  that the second subparagraph of Article  2(3) of the Basic AD Regulation  is 
inconsistent with Article  2.2 of the Anti -Dumping Agreement because it introduces an additional 
circumstance for determining normal value via a lternative methods that is not provided for by 
Article  2.2 of the Anti -Dumping Agreement. Specifically, Russia claims  that the second subparagraph 
of Article  2(3) provides that "a particular market situation for the product concerned" exists "when 
prices a re artificially low".342 
7.172.   Russia's panel request sets forth its claim  as follows:  
The second subparagraph of  Article  2(3) of the Basic [AD] Regulation  stipulates:  
"A particular market situation for the product concerned  within the meaning of the first 
subpar agraph may be deemed to exist, inter alia, when prices are artificially low , when 
there is significant barter trade, or when there are non -commercial processing 
arrangements." (emphasis added)  
The Russian Federation challenges the second subparagraph of  Article  2(3) of the Basic 
Regulation  to the extent it provides that "a particular market situation for the product 
 
340 Regulation  1891/2005, (Exhibit  RUS-19); Regulation  1050/2006, (Exhibit  RUS-31); 
Regulation  954/2006, (Exhibit  RUS-34); Regulation  1269/2012,  (Exhibit  RUS-22); Regulation  1911/2006, 
(Exhibit  RUS-20); Regulation  238/2008, (Exhibit  RUS-35); Regulation  1251/2009 (Exhibit  RUS-33); 
Regulation  237/2008, (Exhibit  RUS-24); Regulation  240/2008, (Exhibit  RUS-28); Regulation  994/2007, 
(Exhibit  RUS-36); Regulation  172/2008 (Exhibit  RUS-37); and Regulation  1194/201 3 (Exhibit  RUS-23). 
(Russia's  response to Panel question No. 6(a), para.  26). 
341 Case T  235/08, (Exhibit  RUS-12), paras.  36, 44 , and 46; Case T  84/07, (Exhibit  RUS-13), paras.  44 
and 60; Case T 459/08, (Exhibit  RUS-14), paras.  57 and 67. (Russia's first wri tten submission, paras.  87-88). 
342 Russia's first written submission, para.  21(b). WT/DS494/R  
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  concerned" exists "when prices are artificially low" thus introducing an additional 
circumstance for determining normal value  via alternative methods.  
This measure appears to be inconsistent with  Article  2.2 of the [Anti-Dumping 
Agreement ] since it extends the grounds for using alternative methods of determining 
normal value while "a particular market situation for the product c oncerned" is limited 
only to the situation described in the second Supplementary Provision to paragraph 1 
of Article  VI in Annex 1 to the GATT 1994.343 
7.173.   This is the claim  before us, and Russia is required to prove this  asserted claim  that the 
second subparag raph of Article  2(3) of the Basic AD Regulation  is "as such" inconsistent with 
Article  2.2 of the Anti -Dumping Agreement for the reasons asserted by Russia .344 Russia bears the 
burden of demonstrating that the challenged aspects of the measures at issue are  inconsistent with 
the Anti -Dumping  Agreement.345 Russia will satisfy its burden if it establishes a prima facie  case, 
namely a case which, in the absence of effective refutation by the defending party, requires a panel, 
as a matter of law, to rule in favour of  Russia .346 If this burden is not satisfied, then this claim  cannot 
succeed.   
7.174.   Our analysis of this claim  begins with our examination of Russia's asserted interpretation of 
Article  2.2 of the Anti -Dumping Agreement that Russia alleges to support its claim  of inconsistency 
in relation to the second subparagraph of Article  2(3) of the Basic Regulation. Russia's int erpretation 
of Article  2.2 asserted in its panel request is further developed in its written submissions and 
responses to Panel questions and is the principal basis upon which Russia's claim  rests. Namely, that 
"the particular market situation" within the meaning of Article  2.2 of the Anti -Dumping Agreement 
refers exclusively to the specific circumstance described in the second Ad Note to  Article  VI:1 of the 
GATT 1994 , i.e. " a country which has a complete, or substantially complete, monopoly of its trade 
and where all domestic prices are fixed by the State ". We also address certain additional arguments 
of inconsistency that Russia develops in its written submissions, some of which are connected to the 
asserted relationship between "the particular market situ ation" and the second Ad Note to  
Article  VI:1 of the GATT 1994, and some of which are independent of this interpretation.  
Whether "the particular market situation" within the meaning of Article  2.2 of the 
Anti-Dumping Agreement refers exclusively to one sp ecific situation which is the 
circumstance described in the second Ad Note to  Article  VI:1 of the GATT 1994  
7.175.   As noted, Russia submits that the wording "the particular market situation" in  Article  2.2 of 
the Anti -Dumping Agreement  shall be applied only  with respect to a country which meets the 
description of the second Ad Note to Article  VI:1 of the GATT 1994 : "a country which has a complete, 
or substantially complete, monopoly of its trade and where all domestic prices are fixed by the 
State".347 The questio n before us is whether, as asserted by Russia, " the particular market situation"  
within the meaning of Article  2.2 of the Anti -Dumping Agreement refers exclusively  to one specific 
situation  and whether one specific situation is the situation specified in the second Ad Note to 
Article  VI:1.348 To answer this question, it is not necessary for us to adopt a comprehensive 
interpretation of what may or may not constitute "the particular market sit uation" within the meaning 
of Article  2.2. We will examine whether Russia's asserted interpretation can form a valid basis for 
its claim  of inconsistency with Article  2.2 as interpreted in accordance with customary rules of 
interpretation of public interna tional law . 
7.176.   We begin our analysis by examining the text of the provision at issue. Article  2.2 of the 
Anti-Dumping Agreement provides:  
When there are no sales of the like product in the ordinary course of trade in the 
domestic market  of the exporting count ry or when, because of the particular market 
 
343 Russia's panel request, p.  2. 
344 Appellate  Body Report, US – Wool Shirts and Blouses , DSR 1997: I, p. 337. 
345 Appellate Body Report, US – 1916 Act , para. 96. ("[A] complaining  Member bears the burden of 
bringing forth sufficient evidence and legal argument to demonstrate  that, prima facie , another Member's 
measure is inconsistent with a relevant obligation of that other  Member under the covered agreements").   
346 Appellate  Body R eport, EC – Hormones , paras.  98 and 104.  
347 Russia's first written submission, para s. 148 and 152 . 
348 Russia's response to Panel question No. 13, paras.  41 and 45.  WT/DS494/R  
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  situation or the low volume of the  sales in the domestic market of the exporting countr y, 
such sales do not permit a proper comparison,  the margin of dumping shall be 
determined by comparison with a comparable p rice of the like product  when exported 
to an appropriate third country, provided that this price is representative, or with the  
cost of production in the country of origin plus a reasonable amount for administrative, 
selling and  general costs and for profi ts.349 
7.177.   In support of its interpretation  that the term " the particular market situation" refers only to 
one specific situation , Russia relies upon , inter alia , the fact s that the term uses the definite article 
"the" and that the term "situation" is written in singular form.350 
7.178.   Russia argues that use of the definitive article "the" indicates that the drafters knew exactly 
to what situation in the market the phrase "the particular market s ituation" refers to.351 We find that 
the use of the definite article "the" is better explained in relation to how Article  2.2 functions in 
relation to the determination of dumping in accordance with Article  2 of the 
Anti-Dumping  Agreement. In particular, we  note that dumping is determined on an exporter -specific 
basis under Article  2.352 Thus, normal value is likewise determined on an exporter -specific basis, and 
Article  2.2 provides for three circumstances in which the exporter -specific normal value will not  be 
determined on the basis of the exporter's own domestic sale prices of the like product sold in the 
ordinary course of trade (a) when there are no such sales; (b) when, because of the low volume of 
domestic sales, such sales do not permit a proper compa rison; and (c ) when, because of the 
particular market situation, such sales do not permit a proper comparison.353 Thus, "the" particular 
market situation within the meaning of Article  2.2 corresponds to the situation that exists in relation 
to the domestic sales of the like product by the specific exporter for which dumping is being 
determined such that those sales do not permit a proper comparison with the exporter's export sales 
of the product under consideration. In any particular application of Article  2.2 for establishing normal 
value to determine dumping in relation to an exporter, the situation at issue in relation to the 
exporter's sales of the like product will be definite, not indefinite. We find that this understanding 
better explains the use of th e definite article "the" in the phrase "the particular market situation" 
than the explanation offered by Russia's interpretation: that the use of "the" as a determiner  
qualifies "the particular market situation" to refer exclusively to one specific situat ion that was in 
the mind of the drafters of Article  2.2, namely the situation described in the second Ad Note to 
Article VI:1 of the GATT 1994 .354 Moreover, if the drafters of Article  2.2 had only one specific 
situation in mind when they used the phrase "th e particular market situation", as Russia claims, then 
the drafters could have been expected to define the phrase specifying the situation that they 
intended to refer. As  Russia admits, however, the phrase is not so defined.355 
7.179.   While  the term "situation" is  written in singular form, it does not follow that it must therefore 
refer exclusively to the same certain situation  in every instance in which Article  2.2 might be applied, 
as argued by Russia.  If the plural form "situations" had been used instead, then A rticle 2.2 could be 
read as requiring in each instance of determining normal value for a specific exporter that multiple 
situations must exist and are causing domestic sales to not permit a proper comparison before an 
investigating authority could disregar d domestic sales of the like product as the basis for normal 
value and utilize instead an alternative means of determining normal value. We find that the use of 
the singular form "situation" in Article  2.2 merely avoids imposing an unintended requirement t o 
find multiple situations in each instance of determining normal value and should be understood to 
mean that only one particular market situation that causes sales of the like product in the domestic 
 
349 Fn omitted.  
350 Russia's first written submission, para.  141. 
351 Russia's first written submiss ion, para.  142. 
352 Appellate Body Report, US – Stainless Steel (Mexico) , paras.  87-95. 
353 Appellate Body Report, EC – Tube or Pipe Fittings , para.  94. 
354 We also find that this functional understanding of the application of Article  2.2 and "the particular 
market situation" condition avoids placing undue significance on the choice of a definite or indefinite article. We 
are not persuaded by Russia's argumen t that the use of the indefinite article "una" in the Spanish version in 
contrast to the definite articles in the English and French versions of Article  2.2 necessitates  resort to Article  33 
of the Vienna Convention to reconcile the texts  because, in Russia's view, Article 2:4 of the Tokyo Round 
Anti-Dumping Code shows  that the use of article "una" in the Spanish version of Article 2.2 of the 
Anti-Dumping Agreement is an error of translation . (Russia's response to Panel question No. 114, 
paras.  14-18). Rather, we find that such a conclusion would be warranted only if we found that 
Russia's  asserted interpretation was correct.  
355 Russia's first written submission, para.  139. WT/DS494/R  
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  market to not permit a proper comparison would be required in order to resort to alternative bases 
for determining normal value. Thus, we find that the use of the term "situ ation" in singular form 
lends no support to Russia's asserted interpretation.  
7.180.   Russia also argues that the ordinary meaning of the individual terms in the phrase "the 
particular market situation" support its asserted interpretation.356 Russia argues that dictionary 
definition s suggest that the phrase "the particular market situation" means that "the situation in the 
market is special, individual for that specific market ".357 However, the reasons Russia offers in 
support of this argument again rely on the use o f the definite article "the" and the use of the term 
"situation" in singular form.358 These are arguments we have addressed above . The ordinary 
meaning of the word "particular" similarly does not establish that there is only one such situation 
being referenced in this provision. Rather, the term "particular" suggests that it is not a general 
situation and is specific to the facts and circumstances as viewed on a case -by-case basis. Thus,  the 
ordinary meaning of the terms in the phrase "the particular market situation" offered by Russia does 
not persuade us that this phrase refers to one specific situation.  We find that Russia's interpretation 
that the "particular market situation" can only be understood as referring to one specific situation is 
not sup ported by the text of Article  2.2. We find that nothing in the text of  Article  2.2 suggests that 
the meaning of the phrase "the particular market situation" is so constrained . 
7.181.   Russia argues further that the phrase "the particular market situation" refers e xclusively to 
the situation described in the second Ad Note to Article  VI:1 of the GATT 1994 : "a country which 
has a complete, or substantially complete, monopoly of its trade and where all domestic prices are 
fixed by the State".359 As noted above, we find  that the text of Article  2.2 does not support an 
interpretation of the phrase "the particular market situation" as referring to only one specific 
situation. Neither do we find any text in Article  2.2 that refers explicitly to the second Ad Note or to 
the specific circumstances described in the second Ad Note.  
7.182.   The second Ad Note to Article VI:1 of the GATT 1994  provides as follows : 
It is recognized that, in the case of imports from a country which has a complete or 
substantially complete monopoly of its trade and where all domestic prices are fixed by 
the State, special difficulties may exist in determining price comparability for the 
purposes of paragraph 1, and in such cases importing contracting parties may find it 
necessary to take into account the po ssibility that a strict comparison with domestic 
prices in such a country may not always be appropriate.  
7.183.   Because, in Russia's view, the second Ad Note to Article VI:1 of the GATT 1994  describes "a 
country that has special, individual market situation", Rus sia argues that the drafters  of the 
Anti-Dumping Code adopted as the result of the Kennedy Round negotiations  "took into account" 
the second Ad Note when introducing the term "the particular market situation".360 Russia argues, 
on the basis of its interpret ation, that it is reasonable to conclude that the negotiators referred to 
this "certain type of non -market economy" as "the particular market situation".361 We consider that 
the drafters would have taken into account the principle of interpretation that whe re the provisions 
of an agreement use different terms it can be inferred that they have different meanings. If the 
intention of the drafters was to refer to the situation in the second Ad Note, then they would be 
expected to do so explicitly by reference o r to use the same terms to do so. Even if we were to 
accept that "the particular market situation" was an apt label for the situation described in the second 
Ad Note, we could not agree that the text of Article  2.2 considered in the light of the second Ad Note 
supports an interpretation that the phrase "the particular market situation" refers exclusively  to the 
situation described in the second Ad Note.  
 
356 Russia's first written submission, para.  140. 
357 Russia's first written submission, para.  140. 
358 Russia's first written submission, paras.  141-142. 
359 Russia's first written submission, para s. 148-151 (referring to GATT, CONTRACTING PARTIES – Ninth 
Session – Review Working Party II on Tariffs, Schedules and Customs Administration – Article VI – Proposal by 
the Czechoslovak Delegation – Revision, W.9/86/Rev.1 (21 December 1954) , (Exhibit RUS -26) and GATT, 
CONTRACTING PARTIES – Ninth Session – Report of Rev iew Working Party III on Barriers to Trade Other Than 
Restrictions or Tariffs, L/334 (1  March 1955) , (Exhibit RUS -27)). 
360 Russia's first written submission, para.  148. 
361 Russia's first written submission, para.  148. WT/DS494/R  
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  7.184.   In support of its understanding of Article  2.2, Russia refers to the context provided by 
Article  2.7 of t he Anti -Dumping Agreement.362 Article  2.7 of the Anti -Dumping Agreement provides : 
[Article 2 of the Anti -Dumping Agreement] is without prejudice to the [second Ad Note 
to Article VI:1 of the GATT 1994 ]. 
7.185.   Based on the dictionary meaning of the phrase "without prejudice"363, Russia argues that  
Article  2.7 of the Anti -Dumping Agreement establishes that the provisions of  Article  2 of the 
Anti-Dumping Agreement , including Article  2.2, apply "without detriment to the Members' right s 
under the second Ad Note" . For Russia, Article 2.2 of the A nti-Dumping Agreement contains the 
obligation to determine normal value via one of two methods described in this provision, and the 
second Ad Note offers flexibility in respect of the determination of normal value.   Russia  argues that 
if the conditions of the second Ad Note are met, an investigating authority can derogate from the 
obligation in  Article  2.2 of the Anti -Dumping Agreement by following the text of the s econd 
Ad Note.364 
7.186.   We do not read  Article  2.7 as connect ing Article  2.2 and the second Ad Note in the manner 
indicated by Russia.  If, as asserted by Russia, the phrase "the particular market situation" refers 
exclusively to the situation described in the second Ad Note, then either the mandatory nature o f 
this provision of Article 2.2 is nullified by the second Ad Note in all cases in which the provision 
applies, or this mandatory provision of Article 2.2 restricts the effect of the second Ad Note. T he 
meaning of "without prejudice " rather suggests that  Article 2 and the second Ad Note should operate 
in conjunction without narrowing the scope or effect of the second Ad Note.  We understand 
Article  2.7 as preserving the operation of  the second Ad Note, and that  Article  2 of the 
Anti-Dumping  Agreement should not be construed in a way that negates  or restricts  the second Ad 
Note.  The text of the second Ad Note "recognizes" that a specific factual situation (" a country which 
has a complete or substantially complete monopoly of its trade and wher e all domestic prices are 
fixed by the State "), could give rise to a circumstance ("special difficulties" in "determining price 
comparability"), in which an importing Member may need to take into account a possibility ("that a 
strict comparison with domest ic prices … may not always be appropriate"). In this respect, we find 
that Russia's asserted interpretation would restrict the second Ad Note in at least two ways.  
7.187.   First, i n recognizing that "special difficulties may exist in determining price comparabili ty" 
the second Ad Note refers to the difficulty of determining  price comparability, whereas Article  2.2 
requires  a determination that an exporter's domestic sales of the like product "do not permit a proper 
comparison". In other words, while the second Ad Note would allow the investigating authority to 
avoid a strict comparison with domestic prices that may be inappropriate because of the special 
difficulties that may exist in determining whether the prices are comparable, Article  2.2 is more 
restrictive by  requiring a price to price comparison unless a determination is made that the domestic 
prices do not permit a proper comparison.  
7.188.   Second, the second Ad Note leaves the investigating authority considerable discretion (" may 
find it necessary to take into acc ount the possibility  … may not always  be appropriate"365) to find 
that a strict price to price comparison is appropriate despite the presence of "special difficulties". In 
contrast, Article  2.2 is more prescriptive in its application (" when , because of the particular market 
situation …, such sales do not permit a proper comparison,  the margin of dumping shall be 
determined  [using one of two alternative methods for determining normal value as provided for in 
Article 2.2 ]").366 
7.189.   For these reasons,  we find that Russia's asserted interpretation would restrict the second 
Ad Note in contravention of the requirement in Article  2.7 that Article  2 of the 
Anti-Dumping  Agreement is without prejudice to the second Ad Note, or would nullify the mandatory 
 
362 Russia's first written submission, par a. 144. 
363 "Without detriment to any existing right or claim" . (Russia's response to Panel question No. 14, 
para. 46 (referring to Oxford Dictionaries online, definition of "without prejudice" 
https://www.oed.com/view/Entry/150162?redirectedFrom=without+prejudice#eid28522373  (accessed 
25 September 2019),  (Exhibit  RUS-149), p. 3). 
364 Russia's response to Panel question No. 14, para.  46. 
365 Emphasis added.  
366 Emphasis added . WT/DS494/R  
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  nature of the provision relating to "the particular market situation" in Article 2.2 in all cases in which 
it applies. We find that neither outcome can be sustained as a proper interpretation.  
7.190.   In its interpretation of the relationship between Articles 2.2 and 2.7 of the 
Anti-Dumping  Agreement and the second Ad Note to Article VI:1 of the GATT  1994, Russia also 
draws support from the following statement by the Appellate Body in EC – Fasteners (China) 
(Article  21.5 – China) :  
The fair comparison requirement of Article  2.4 [of the Anti -Dumping Agreement ] applies 
in all anti -dumping investigations, irrespective of the methodology used to determine 
normal value. In this context,  we recall that  Article  2.7 of the Anti -Dumping Agree ment 
incorporates the [s]econd Ad Note to  Article  VI:1 of the GATT 1994. This provision, read 
in conjunction with  Article  2.2 of the Anti -Dumping Agreement, has been understood to 
allow investigating authorities to disregard domestic prices and costs of a [non-market 
economy] producer in the determination of normal value on the ground that a strict 
comparison with such prices may not be appropriate.367 
7.191.   In EC – Fasteners (China) (Article 21.5 – China) , the Appellate Body was not called upon to 
interpret  Article 2.2 or the second Ad Note. The claim  examined by the Appellate Body in 
EC – Fasteners (China) (Article 21.5 – China)  concerned the interpretation and application of 
Article  2.4 of the Anti -Dumping Agreement. Specifically, China argued before the Appella te Body 
that the panel erred in finding that the European Union did not act inconsistently with the fair 
comparison requirement under Article  2.4 of the Anti -Dumping Agreement in relation to the 
EU authorities' rejection of the Chinese producers' requests for certain adjustments. China argued 
that there was no legal basis in the Anti -Dumping Agreement or in China's Accession Protocol for a 
finding that Article  2.4 of the Anti -Dumping Agreement imposes a different and less stringent fair 
comparison obligatio n in investigations involving non-market economy (NME) producers.  
7.192.   The Appellate Body made the statement cited by Russia in setting out its understanding of 
"certain issues relating to the interpretation of [Article 2.4]".368 By indicating that the second 
Ad Note, " read in conjunction with  Article  2.2 of the Anti -Dumping Agreement ", has been understood 
to allow authorities to disregard domestic prices and costs of a NME, the Appellate Body was referr ing 
to the general obligation under  Article  2.2 to calculate  normal value based on domestic prices unless 
there is a special circumstance  – considering that , in the particular case of an NME , the special 
circumstance was set out in the second Ad Note. However, the Appellate Body does not indicate that 
"the particular market situation " referenced in Article  2.2 refers only to the situation described in 
the second Ad Note. Moreover, the Appellate Body made that statement  without any analysis of the 
specific text s of Article  2.2 and the s econd Ad Note.  Accordingly,  we do not understand the 
Appellate  Body's statement in EC – Fasteners (China) (Article 21.5 – China)  on the relation between  
Article  2.2 and the second Ad Note to offer any support to Russia's asserted interpretation.  
7.193.   In consideration of all the arguments offered in support of Russia's asserted interpretation 
that " the particular market situation"  within the meaning of Article  2.2 of the 
Anti-Dumping  Agreement refers exclusively  to one specific situation  and that is the si tuation 
specified in the second Ad Note to Article VI:1 of the GATT 1994 , for the above reasons we find that 
this interpretation cannot form a valid basis for Russia's claim  that the second subparagraph of 
Article  2(3) of the Basic  AD Regulation  is inconsistent with Article  2.2 of the 
Anti-Dumping  Agreement.  
Additional argumen ts connected to the second Ad Note to Article VI:1 of the 
GATT  1994  
7.194.   Russia makes additional arguments regarding the interpretation of Article  2.2 in support of 
its claim  that Article  2(3) of the Basic AD Regulation  is inconsistent with Article  2.2 of the 
Anti-Dumping Agreement. Russia clarified that certain of these arguments are connected to its 
asserted interpretation that "the particular market situation" refers exclusively to the situation 
specified in the second Ad Note to Article VI:1 of the GATT 1994 , and certain of its additional 
 
367 Russia's first written submission, para.  147 (referring to Appellate Body Report, EC – Fasteners 
(China) (Article  21.5 – China), para. 5.205).  
368 Appellate Body Report, EC – Fasteners (China) (Article  21.5 – China) , para.  5.198.  WT/DS494/R  
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  interpretive arguments are independent of the second Ad Note.369 We first address the additional 
arguments that are connected to the second Ad Note, and then turn to the arguments independent 
of the second Ad Note.  
7.195.   Russia arg ues that it follows from the asserted interpretation in connection with the second 
Ad Note that "the particular market situation" refers to a specific condition in a country "as a whole", 
such that a situation existing in respect of the market for the like  product or its inputs may not 
constitute "the particular market situation", including a situation of "artificially low prices" in relation 
to the like product or its inputs.370 We first note that the qualifier "as a whole" does not appear in 
the text of Ar ticle 2.2. We also take into consideration that the term "market" is functioning as an 
adjective to indicate that the situation being referenced in the phrase "the particular market 
situation" is a situation pertaining to a market and that the relevance of  "the particular market 
situation" in the context of Article  2.2 turns on whether or not it causes the exporter's sales of the 
like product in the domestic market to not permit a proper comparison with the export sales of the 
exporter for which dumping is being determined. As such, we perceive no functional reason that a 
situation existing in respect of the market for the like product or its inputs would necessarily be 
excluded from constituting "the particular market situation" within the meaning of Articl e 2.2 to 
address the circumstance that such situation causes the exporter's domestic sales of the like product 
to not permit a proper comparison with the exporter's export  sales of the product under 
consideration. Accordingly, we disagree that such situati ons which do not relate to the exporting 
country "as a whole" or do not match the situation described in the second Ad Note are necessarily 
excluded from constituting "the particular market situation" in any application of Article  2.2 to the 
facts of a par ticular case. Therefore, we disagree with Russia's contention that such situations 
necessarily are in addition to the three circumstances provided for in  Article  2.2 for disregarding an 
exporter's domestic sales of the like product and utilizing an alterna tive basis for normal value to 
determine dumping.371 In sum, we find in the text and operation of  Article  2.2 no basis for 
interpreting "the particular market situation" as necessarily relating exclusively to a country "as a 
whole" as Russia argues. Nor do we agree, for reasons explained above, that the second Ad Note 
supports such an interpretation of "the pa rticular market situation" within the meaning of  Article  2.2. 
We find that this additional interpretative argument cannot support Russia's claim  that Article  2(3) 
of the Basic AD Regulation  is inconsistent with  Article  2.2 of the Anti -Dumping Agreement.  
Additional arguments independent of the second Ad Note to Article VI:1 of the 
GATT 1994  
7.196.   We now turn to Russia's additional arguments regarding the interpretation of Article  2.2, 
which are independent of the asserted interpretation that "the particular market  situation" refers 
exclusively to the situation specified in the second Ad Note to Article VI:1 of the GATT 1994 , and we 
ascertain whether these additional arguments are capable of supporting Russia's claim  that the 
second subparagraph of Article  2(3) of t he Basic AD Regulation  is inconsistent with Article  2.2 of the 
Anti-Dumping  Agreement.  
7.197.   First, Russia argues that the "particular market situation" provision of Article  2.2 provides 
no legal basis for an analysis by an investigating authority of whether pri ces are "artificially low" on 
the basis of an examination of supply and demand signals in markets, of alleged market distortions, 
or of product or input prices as compared to prices in world markets or representative markets.372 
Beyond this assertion, Russi a offers no interpretive rationale for such a prohibition beyond observing 
that such analyses are not explicitly referred to in Article  2.2 of the Anti -Dumping Agreement. We 
consider this an insufficient basis upon which to find that Article  2.2 prohibits an investigating 
authority to undertake such analysis. Considering that an investigating authority is required to 
support its determinations under Article  2.2 with relevant and sufficiently establish ed factual findings 
and a reasoned and adequate explanati on, we do not consider that the lack of explicit authorization 
in the text of Article  2.2 can be interpreted as a prohibition against undertaking such analyses. We 
find that Russia has failed to demonstrate that such analyses could never be relevant to an 
investigating authority's determination of whether the facts and circumstances of a case required a 
determination that the particular market situation caused an exporter's domestic sales of the like 
 
369 Russia's  responses to question Nos. 61 (a) and 61 (b).  
370 Russia's first written submission, paras.  148, 152, and 156; second written submission, 
paras.  127(a), 127(b), and 127(c).  
371 Russia's first written submission, paras.  125, 133, 135, 156, 157, and 159.  
372 Russia's first written submission, para.  160; second written submission, para.  127(d).  WT/DS494/R  
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  product to not permit a proper comparison for purposes of  the dumping determination. Accordingly, 
we find this argument regarding the interpretation of Article  2.2 offers no support for Russia's 
claim  that Article  2(3) of the Basic AD Regulation  is inconsistent with Article  2.2 of the 
Anti-Dumping  Agreement.  
7.198.   Second, Russia argues that "low prices and prices that are lower than, for example, in the 
[European Union ] can be typical prices in the home market of the exporter or producer under 
investigation and reflect the ordinary course of trade in the domestic marke t" and thus by providing 
that so called "artificially low prices" constitute the ground for using alternative methods to 
determine normal value the measure at issue is inconsistent with Article  2.2 of the 
Anti-Dumping  Agreement.373 Beyond this assertion, Ru ssia offers no interpretive rationale why 
Article  2.2 necessarily requires that "typical prices" reflecting the ordinary course of trade in the 
domestic market could never be affected by the particular market situation  such that those sales 
prices would b e artificially lowered and would not permit a proper comparison. We note that under 
Article  VI:1(a) of the GATT 1994 and Article  2.1 of the Anti -Dumping Agreement, sales not in the 
ordinary course of trade are not eligible to be a basis for normal value in  any case. Accordingly, the 
reference to "such sales" in Article  2.2 must refer to sales in the ordinary course of trade which could 
be used as a basis for normal value except if they do not permit a proper comparison either because 
of low volume or becaus e of the particular market situation. This conclusion also follows from the 
word "or" following the condition "where there are no sales of the like product in the ordinary course 
of trade in the domestic market of the exporting country", which indicates th at the following two 
conditions (i.e. "particular market situation" and "low volume") pertain when there are sales in the 
ordinary course of trade in the domestic market of the exporting country but those sales may not 
be an appropriate basis for determining normal value for other reasons. Thus, observing that sales 
prices are typical and reflect the ordinary co urse of trade in the exporting country cannot, by itself, 
exclude the possibility that application of the low volume condition or the particular market situation 
condition would be valid under the facts of a particular case. On this basis, we find that Rus sia's 
interpretive rationale for this argument of inconsistency is not valid and cannot support Russia's 
claim  that Article  2(3) of the Basic  AD Regulation  is inconsistent with Article  2.2 of the 
Anti-Dumping  Agreement.  
7.199.   Before concluding, we note that our examination thus far of the interpretive issues in relation 
to this claim  under Article  2.2 of the Anti -Dumping Agreement  have focused on the text and relevant 
context of that provision in the course of addressing Russia's legal rationale for its claim. We  now 
take into account considerations of object and purpose of the Anti -Dumping Agreement. We note, 
firstly, that the Anti -Dumping Agreement does not contain a preamble to guide the inquiry into its 
object and purpose.374 We also note that the Appellate Bod y has looked to the content and structure 
of the Anti -Dumping Agreement to discern its object and purpose, finding that it deals with injurious 
dumping by allowing Members to take anti -dumping measures to counteract injurious dumping and 
imposing disciplin es on the use of such anti -dumping measures.375 We find that t he understanding 
we have derived from the text and relevant context of  Article  2.2 of the Anti -Dumping Agreement is 
in accord with this understanding of the Anti -Dumping Agreement.  We find that c onsiderations of 
the object and purpose of the Anti -Dumping Agreement provide no basis for finding that Russia's 
legal rationale constitutes a proper interpretation of the relevant provisions of the agreement.  
7.200.   Finally, we note that the term "the particular  market situation" was recently examined by a 
panel in Australia  – Anti-Dumping Measures on Paper  for which a panel report was adopted by the 
DSB following the second substantive meeting in this dispute.376 We invited and received comments 
from the parties on potentially relevant aspects of that report and have taken the report and the 
parties' comments into consideration along with the fact that the measures, legal rationales and 
records at issue in these two disputes were substantially different. In partic ular, we note that 
Russia's  legal rationale for this claim  was not asserted by the parties in that dispute and therefore 
was not at issue in that case. As we understand it, the panel in Australia – Anti-Dumping Measures 
on Paper  made findings in relation t o the specific legal rationales asserted by the parties in that 
dispute, while our analysis has focused exclusively on Russia's particular legal rationale for this 
claim. Nevertheless, we observe that the reasoning of the panel in that case accords with ou r own 
 
373 Russia's first written submission, para.  161; second written submission, para.  127(e).  
374 Appellate Body Report, US – Softwood Lumber V (Article  21.5 – Canada) , para.  118. 
375 Appellate Body Reports, US – Washing Machines , para.  5.52; EU – Biodiesel (Argentina) , para.  6.25. 
376 Panel Report, Australia – Anti-Dumping Measures on Paper . WT/DS494/R  
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  conclusion that "the particular market situation" does not exclusively refer to the situation described 
in the second Ad Note:   
The phrase "particular market situation " does not lend itself to a definition that foresees 
all the varied situations that  an investigating authority may encounter that would fail to 
permit a "proper comparison ". In our view, the drafters' choice to use such a phrase 
should be treated as a deliberate one. Consequently, while the expression "particular 
market situation" is constrained by the qualifiers "particular" and "market", it 
nevertheless cannot be interpreted in a way that comprehensively identifies the 
circumstances or affairs constituting the situation that an investigating authority may 
have to consid er.377  
We find this reasoning persuasive and relevant to the claim  before us insofar as it recognizes "varied 
situations … that would fail to permit a 'proper comparison'" and therefore is not limited exclusively 
to the situation described in the second Ad Note.  We conclude, therefore , that our findings and 
reasoning in respect of this claim  are additionally supported by the findings and reasoning of the 
panel in Australia  – Anti-Dumping Measures on  Paper . 
 
Conclusion  
7.201.   After careful consideration of all the arguments offered in support of Russia's asserted 
interpretation of Article  2.2 of the Anti -Dumping Agreement,  we find, for the above reasons , that 
they fail to support Russia's claim  that the second subparagraph of Article  2(3) of the Basic 
AD Regulation  is inconsistent with Article  2.2 of the Anti -Dumping Agreement. We find that Russia 
has not discharged its burden of demonstrating that its legal rationale regarding the interpretation 
of Article  2.2 provides a valid basis for this claim. Accordingly, we d ismiss Russia's claim.  
7.5  Russia's claims  concerning the final part of the second subparagraph of  Article  2(5) 
of the Basic AD Regulation  
Introduction  
7.202.   Russia claims  that the final part of the second  subparagraph of  Article  2(5) of the 
Basic AD Regulation  is inconsistent "as such"  with Article  2.2 and Article  2.2.1.1 of the 
Anti-Dumping  Agreement . 
7.203.   The second subparagraph of Article  2(5) of the Basic AD Regulation  reads as follows:  
If costs associated with the production and sale of the product u nder investigation are 
not reasonably reflected in the records of the party concerned, they shall be adjusted 
or established on the basis of the costs of other producers or exporters in the same 
country or, where such information is not available or cannot  be used, on any other 
reasonable basis, including information from other representative markets .378  
7.204.   Russia challenges only the final part of the second subparagraph of Article  2(5) of the 
Basic AD Regulation: "or, where such information is not available o r cannot be used, on any other 
reasonable basis, including information from other representative markets".379 
7.205.   Russia's challenge is grounded in its assertion that in a certain scenario the challenged part 
of the second subparagraph of Article  2(5) prevents the European  Commission  from (a) calculating 
the cost of production based on the cost "associated with the production" of the product under 
consideration consistently with Article  2.2.1.1 of the Anti -Dumping Agreement, and (b) constructing 
the normal value  based on the cost of production of the like product in the country of origin of the 
product under consideration consistently with Article  2.2 of the Anti -Dumping Agreement.380 
The scenario Russia posits is one where the costs of other producers or exporter s in the country of 
origin of the product under consideration "are available" but "cannot be used" within the meaning 
of the second subparagraph of Article  2(5) because the European  Commission  determines that such 
 
377 Panel Report, Australia – Anti-Dumping Measures on Paper , para. 7.21.  
378 Emphasis added.  
379 Russia's first written submission, para.  165. 
380 Russia's first written submission, para.  281. WT/DS494/R  
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  costs are distorted due to government regu lation in the country of origin of the product under 
consideration and for this reason rejected. Russia argues that when this scenario occurs, the 
challenged part of the second subparagraph of Article  2(5) prescribes that cost of production be 
"adjusted or  established" "on any other reasonable basis" which means any basis other than the 
costs of other producers or exporters in the exporting country. According to Russia, this prevents 
the European  Commission  from complying with the obligation under Article  2.2 of the 
Anti-Dumping  Agreement to construct the normal value on the basis of "the cost of production in 
the country of origin". In addition, Russia argues that the challenged part of the second 
subparagraph of Article  2(5) prescribes that the cost of pro duction be "adjusted or established" on 
the basis of "information from other representative markets", which is alleged to refer to undistorted 
input prices and costs of production in third countries, and thereby prevents the 
European  Commission  from comply ing with its obligation under Article  2.2.1.1 of the 
Anti-Dumping  Agreement to calculate the cost of production on the basis of the cost "associated with 
the production" of the product under consideration. Finally, Russia challenged the absence of an 
explicit requirement in the challenged part of the second subparagraph of Article  2(5) to ensure 
comp liance with the obligation in Article  2.2 of the Anti -Dumping Agreement to base the construction 
of normal value on "the cost of production in the country of or igin" and thus to ensure that the 
"adjusted" or "established" cost of production represents "the cost of production in the country of 
origin". We address each of these arguments in turn.  
Whether  Article  2.2 of the Anti -Dumping Agreement requires "the cost  of 
production in the country of origin" to be based on the costs of other producers or 
exporters in the same country when the records of the investigated exporter or producer 
are rejected  
7.206.   According to Russia, the European  Commission  is prevented from com plying with the 
obligation under Article  2.2 of the Anti -Dumping Agreement to construct the normal value on the 
basis of "the cost of production in the country of origin" because the final part of the second 
subparagraph of Article  2(5), under the posited scenario, requires the European  Commission  to 
establish or adjust costs on the basis of something other than the costs of other producers or 
exporters in the same country. In the context of this claim, we do not understand Russia to be 
challenging the basi s for rejecting the records of the investigated exporter or producer, but rather 
the consequence of such rejection under the posited scenario resulting from the challenged part of 
the second subparagraph of Article  2(5). The interpretive question before us , therefore, is whether 
Article  2.2 of the Anti -Dumping Agreement requires an investigating authority that has rejected the 
records of an investigated exporter or producer to construct normal value based on the costs of 
other producers or exporters in the same country, such that the allowance in the challenged part to 
utilize "any other reasonable basis , including information from other representative markets " 
necessarily will result in the construction of normal value that does not comply with Article  2.2. 
7.207.   We have already set forth our understanding and interpretation of Article  2.2 of the 
Anti-Dumping Agreement in relation to Russia's claim  in respect of the Cost Adjustment 
Methodology, and to avoid unnecessary repetition we refer to that analysis above. W e recall that we 
have found that Article  2.2 of the Anti -Dumping  Agreement does not limit the sources of information 
to be used to calculate the cost of production to only those sources inside the country of origin .381 
Once the records of the investigated exporter or producer have been rejected, there is no hierarchy 
of sources upon which to base the cost of production in the country of origin. The costs of other 
producers or exporters in the same country may constitute  an appropriate source, but not 
necessarily the only possible source. Of course, an investigating authority remains bound by the 
obligation to arrive at the cost of production "in the country of origin" . So long as the investigating 
authority arrives at a cost of production that represents the cost of production in the country of 
origin, the requirement of Article  2.2 is satisfied. We have already found that an investigating 
authority may be required to adapt  out-of-country information  in order to ensure th at it is suitable 
to determine a cost of production "in the country of origin" .382 Compliance with the obligation to 
adapt information from outside the country of origin pursuant to Article  2.2 was also examined in  
EU – Biodiesel (Argentina)  and Ukraine – Ammonium Nitrate . In both cases, the respective 
investigating authorities  were found to have  acted in contravention of Article  2.2 by failing to explain 
how the information used in its calculations was adapted to ensure that it represented the cost  of 
 
381 Appellate Body Report, EU – Biodiesel (Argentina) , para. 6.74. 
382 Appellate Body Report, EU – Biodiesel (Argentina) , para.  6.70. WT/DS494/R  
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  produ ction in the country of origin.383 It follows, in our view, that the costs of other producers or 
exporters in the same country is not the sole source of cost information that is capable of satisfying 
the requirement of Article  2.2 to use the cost of product ion in the country of origin when constructing 
normal value.  
7.208.   For the above reasons, we find that Russia's claim  lacks a valid basis in Article  2.2 of the 
Anti-Dumping Agreement and we, therefore, dismiss this basis for Russia's claim.  
Whether  Article  2.2.1 .1 of the Anti -Dumping Agreement requires the cost of 
production to be based on the cost "associated with the production" of the product under 
consideration when the records of the investigated exporter or producer are rejected  
7.209.   According to Russia, the European  Commission  is prevented from complying with the 
obligation under Article  2.2.1.1 of the Anti -Dumping Agreement to calculate the cost of production 
based on the cost "associated with the production" of the product under consideration because the 
challenged part of the second subparagraph of Article  2(5) prescribes that the cost of production be 
"adjusted or established" on the basis of "information from other representative markets", which is 
alleged to refer to undistorted input prices and costs of pr oduction in third countries. As already 
noted, we do not understand Russia to be challenging the basis for rejecting the records of the 
investigated exporter or producer, but rather the consequence of such rejection under the posited 
scenario resulting fro m the challenged part of the second subparagraph of Article  2(5). 
The interpretive question before us, therefore, is whether Article  2.2.1.1 requires an investigating 
authority that has rejected the records of the investigated exporter or producer to const ruct normal 
value on the basis of the cost "associated with the production" of the product under consideration.  
7.210.   The first sentence of Article  2.2.1.1 of the Anti -Dumping Agreement provides:  
For the purpose of paragraph 2, costs shall normally be calculated on the basis of 
records kept by the exporter or producer under investigation, provided that such records 
are in accordance with the generally accepted accounting principles of the exporting 
country and reasonably reflect the costs associated wit h the production and sale of the 
product under consideration.  
7.211.   We have already set forth our understanding and interpretation of Article  2.2.1.1 of the 
Anti-Dumping Agreement in relation to Russia's claim  in respect of the Cost Adjustment 
Methodology, and t o avoid unnecessary repetition we refer to that analysis above. We recall that 
Article  2.2.1.1 identifies the records of the investigated exporter or producer as the preferred source 
for cost of production data, and directs an investigating authority to normally base its calculations 
of costs on the records of the exporter or producer under investigation, provided that the records 
comply with two conditions. The second condition is the source of the language Russia relies on as 
a basis for its claim  that th e challenged part of the second subparagraph of Article  2(5) is 
inconsistent with Article  2.2.1.1. As we have noted, however, the condition in question applies to 
the "records" of the investigated exporter or producer, rather than the cost information used  in lieu 
of the costs reported in the records. Once the records have been rejected as the source of the cost 
of production for constructing normal value, the language in the second condition has no further 
applicability in respect of the costs to be used. Instead, as we have found, w here an investigating 
authority uses information other than that contained in the records kept by the exporter or producer 
to construct the cost of production, it has to ensure that the information384 is suitable to determine 
a "cost of production" "in the country of origin"385 rather than to "reasonably reflect" the "costs 
associated with the production and sale of the product under consideration".386  
7.212.   For the above reasons, we find that Russia's claim  lacks a valid basis in Article  2.2.1.1 of the 
Anti-Dumping Agreement and we, therefore, dismiss this basis for Russia's claim.   
 
383 Appellate Body Reports, EU – Biodiesel (Argentina) , para.  6.81; Ukraine – Ammonium Nitrate,  
para. 6.123.  
384 Appellate Body Report, EU – Biodiesel (Argentina) , para.  6.73. (fns omitted)  
385 Appellate Body Report, EU – Biodiesel (Argentina) , para. 6.70. (fn omitted)  
386 Appellate  Body Reports, Ukraine – Ammonium Nitrate , para.  6.88; EU – Biodiesel (Argentina) , 
para. 6.18. WT/DS494/R  
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Whether the challenged part of the second subparagraph of  Article  2(5) of the Basic 
AD Regulation  prevents the European  Commission  from adapting "infor mation from other 
representative markets" to arrive at "the cost of production in the country of origin" in 
accordance with  Article  2.2 of the Anti -Dumping Agreement  
7.213.    Russia challenges the absence of an explicit requirement in the challenged part of the s econd 
subparagraph of Article  2(5) to ensure comp liance with the obligation in Article  2.2 of the 
Anti-Dumping Agreement to base the construction of normal value on "the cost of production in the 
country of origin" and thus to ensure that the "adjusted" or "established" cost of production 
represents "the cost of production in the country of origin".  
7.214.   We have already set forth our understanding and interpretation of Article  2.2 of the 
Anti-Dumping Agreement in relation to Russia's claim  in respe ct of the Cost Adjustment 
Methodology, and to avoid unnecessary repetition we refer to that analysis above. We recall that 
where an investigating authority uses information other than that contained in the records kept by 
the exporter or producer to constr uct the cost of production, it has to ensure that the information387 
is suitable to determine a "cost of production" "in the country of origin".388 An investigating authority 
is not allowed to simply substitute the costs from outside the country of origin fo r the "cost of 
production in the country of origin".389 Accordingly, we find that Russia has presented a valid basis 
in Article  2.2 of the Anti -Dumping Agreement upon which to assert a claim  of inconsistency.  
7.215.   We recall that in order to prevail on this claim , Russia must demonstrate that the content of 
the measure is, as matter of fact, as Russia has alleged. Our analysis of this basis for Russia's 
claim  begins with the weighing of the evidence before us to assess whether the challenged part of 
the second sub paragraph of  Article  2(5) of the Basic AD Regulation  has the content that Russia 
alleges.  
7.216.   We recall that the second subparagraph of  Article  2(5) of the Basic AD Regulation  reads as 
follows:  
If costs  associated with the production and sale of the product un der investigation are 
not reasonably reflected in the records of the party concerned, they shall be adjusted 
or established on the basis of the costs of other producers or exporters in the same 
country or, where such information is not available or cannot be used, on any other 
reasonable basis, including information from other representative markets .390  
7.217.   We also recall that Russia challenges only the final part of the second subparagraph of 
Article  2(5) of the Basic AD Regulation: "or, where such information  is not available or cannot be 
used, on any other reasonable basis, including information from other representative markets".391 
7.218.   Specifically, Russia challenges the absence of an explicit requirement in the challenged part 
of the second subparagraph of Arti cle 2(5) to comp ly with the obligation in Article  2.2 of the 
Anti-Dumping Agreement to base the construction of normal value on "the cost of production in the 
country of origin" and thus  to ensure that the "adjusted" or "established" cost of production 
represents "the cost of production in the country of origin".  
7.219.   Russia presents its argument that the absence of such an explicit requirement in the second 
subparagraph of Article  2(5) prevents the European  Commission  from complying with Article  2.2 as 
follows:  
[U]nder the second subparagraph of Article 2(5) of the Basic Regulation the 
EU authorities have to  "adjust" or "establish" the disregarded input price or cost of 
production of the investigated producer "on any other reasonable basis, including 
information from other representative markets".  
 
387 Appellate Body Report, EU – Biodiesel (Argentina) , para.  6.73. (fns omitted)  
388 Appellate Body Report, EU – Biodiesel (Argen tina), para.  6.70. (fn omitted)  
389 Appellate Body Report, EU – Biodiesel (Argentina) , para.  6.73. 
390 Emphasis added.  
391 Russia's first written submission, para.  165. WT/DS494/R  
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  [However, this] provision does not contain the specific secon d requirement to adapt the 
adjusted or established costs to ensure that they represent the cost of production of the 
product in the country of origin . Since the text of the Basic Regulation  reflects deliberate 
and careful choice of the European Parliament and the Council of the European Union in 
delegating power to the EU authorities for specific actions, the absence of an additional 
legislative requirement to adapt the adjusted "undistorted" input price or established 
"undistorted" cost of production to input price and costs in the country of origin  means 
that such an adaptation is not required.392 
7.220.   On the basis of the text itself, we consider that Russia has demonstrated that the adaptation 
of out -of-country information to arrive at the cost of production in  the country of origin consistent 
with Article  2.2 is not required by  the challenged part of the second subparagraph of Article  2(5). 
However, in our view, this is not sufficient to render the challenged part inconsistent "as such" with 
Article  2.2. Russia  argues further:  
Thus, the absence of the delegated power to conduct the adaptation prevents the EU 
authorities from ensuring that input prices and other costs of production that the 
authorities intend to use in calculations reflect the cost of production of the product in 
the country of origin.393 
7.221.    For this proposition, we find that Russia has not provided adequate supporting evidence 
that the absence of the delegated power to conduct the adaptation means that the 
European  Commission  is powerless to perform  the required adaptations. We identified no evidence 
supporting that the asserted principle was a feature of the relevant municipal law of the 
European  Union. We recall that in our examination of the Cost Adjustment Methodology, we found 
that in almost all  of the determinations  we examined applying the second subparagraph of 
Article  2(5), the  European  Commission  made adjustments for transport costs, customs export tax, 
value added tax, excise duty, local distribution costs, sea freight and fobbing costs , in order to 
remove export -related and transportations expenses.  Such adjustments are not explicitly provided 
for in Article  2(5), but the European  Commission  was not prevented from making such adjustments.  
7.222.   Russia argues that the practice of application of th e challenged part of the second 
subparagraph of Article  2(5) demonstrates that it is applied without any adaptation that ensures 
arrival at the cost of production in the country of origin and that this lack of adaptation is supported 
by the General Court o f the European Union.394 We recall that we have found above that the 
systematic application of  the first and second subparagraph s of Article  2(5) with the support of the 
relevant Court opinions demonstrate the operation of the Cost Adjustment Methodology , pursuant 
to which the European  Commission  fails to address the adaptation of out -of-country information to 
arrive at the cost of production in the country of origin . In light of our findings on the operation of 
the Cost Adjustment Methodology,  we do not consider the evidence cited by Russia demonstrates 
that the meaning of the challenged part of the second subparagraph of Article  2(5) is that adaptation 
of the out -of-country information is prevented.  
7.223.   For these reasons, we find that  the evidence  does not support, and  therefore Russia has 
failed to demonstrate , that the challenged part of the second subparagraph of Article  2(5) of the 
Basic AD Regulation  prevents the European  Commission  from adapting out -of-country information 
to arrive at the cos t of production in the country of origin. Accordingly, we dismiss Russia's claim  of 
inconsistency with Article  2.2 of the Anti -Dumping Agreement on this basis.  
7.224.   Finally, we note that the second subparagraph of Article  2(5) was the subject of a prior 
dispute  in which the measure was found to be not inconsistent "as such" with Article  2.2 and 
Article  2.2.1.1 of the Anti -Dumping Agreement. We have based our findings in respect of the 
challenged measure on our assessment of the evidence and arguments presented o n the record of 
this dispute. We note, however, that our findings and reasoning in respect of this claim  are not 
contrary to findings and reasoning of the panel and Appellate Body in EU – Biodiesel (Argentina) .395 
 
392 Russia's first written submission, para s. 264-265. (emphasis original)  
393 Russia's first wri tten submission, para.  265. 
394 Russia's first written submission, paras.  272-273. 
395 Appellate Body Report, EU – Biodiesel (Argentina) , para.  6.242; Panel Report, EU – Biodiesel 
(Argentina) , paras.  7.169 -7.174.  WT/DS494/R  
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Conclusion  
7.225.   Having examined and rejected each of the rationales provided by Russia for its claim  that 
the final part of the second subparagraph of  Article  2(5) of the Basic AD Regulation  is inconsistent 
with Article  2.2 and Article  2.2.1.1 of the Anti -Dumping Agreemen t, we conclude that Russia has 
failed to demonstrate this claim.  
7.6  Russia's claims  concerning the anti -dumping measures on imports of certain welded 
tubes and pipes originating in Russia  
Introduction  
7.226.   The European  Commission  imposed anti -dumping duties on cer tain welded tubes and pipes 
from, inter alia , Russia  by Regulation  1256/2008 of 16 December 2008 .396 As a result of an expiry 
review initiated in 2013, the European  Commission  extended  the application of the se duties for 
another five years by Regulation  2015/110 of 26 January 2015.397 The European  Commission  found 
that there was a likelihood of recurrence of dumping398 and injury399 in case the measures were 
repealed.  
7.227.   Russia claims  that, in the expiry review, the European  Union acted inconsistently with the 
following provisions of the Anti -Dumping Agreement:  
a. the first sentence of  Article  2.2.1.1 because, in determining normal value, the 
European  Commission : 
i. failed to calculate the cost of production of tubes and pipes on t he basis of the records 
of the producer under investigation , because it reject ed the gas prices actually paid  by 
the producer under investigation; and  
ii. used costs other than " the costs associated with the production and sale of the product 
under considerati on". 
b. Article 2.2.1 because the European  Commission  used incorrect costs of production, 
calculated in violation of  Article  2.2.1.1, in the ordinary -course -of-trade test.  
c. Article  11.3 because the European  Commission  determined the likelihood of recurrence of 
dumping based on costs calculated in violation of  Articles  2.2.1.1 and 2.2.1 of the 
Anti-Dumping Agreement.400 
7.228.   The European Union responds that Russia has failed to demonstrate that the 
European  Commission 's deter minations related to the calculation of costs of production, the ordinary 
course of trade and the likelihood of recurrence of dumping reflected in Regulation  2015/110 , are 
inconsistent with  Articles  2.2.1.1, 2.2.1 , and 11.3 of the Anti-Dumping Agreement . 
Russia's claims  under the first sentence of  Article  2.2.1.1  
Main arguments of the parties  
Russia  
7.229.   Russia 's claims  under the first sentence of  Article  2.2.1.1 are grounded in two main lines of 
argument.  
 
396 Regulation  2015/110, (Exhibit  RUS-21), recita l 1.  
397 Regulation  2015/110, (Exhibit  RUS-21), Article  1; Russia's first written submission, para.  437; and 
European Union's first written submission, para.  110. 
398 Regulation  2015/110, (Exhibit  RUS-21), recital  87. 
399 Regulation  2015/110, (Exhibit  RUS-21), recital  163. 
400 Russia's first written submission, paras.  483-485. WT/DS494/R  
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  7.230.   The first ground for Russia's claim  concerns the reject ion of the gas costs reflected in the 
records of the producer under investigation. Russia states  that, in examining the likelihood of 
recurrence of dumping, the European  Commission  constructed normal value. In doing so, the 
European  Commission  failed to ca lculate the cost s of production of certain welded tubes and pipes  
on the basis of the records of the investigated producer .401 In particular, Russia asserts that the 
European  Commission  discarded domestic gas prices because they (i) represented only 30% of the 
Russian export gas price and were far below market prices paid in unregulated export markets; and 
(ii) were regulated by the government. Based on this evidence, the European  Commission  concluded 
that gas costs w ere not "reasonably reflected" in the producer's records. Accordingly, Russia asserts 
that the European  Commission  rejected the recorded domestic gas costs in reliance on the second 
condition in the first sentence of  Article  2.2.1.1 of the Anti -Dumping Agr eement.402 Russia recalls 
that, in EU – Biodiesel (Argentina) , the Appellate Body understood the second condition in the first 
sentence of  Article  2.2.1.1 as not referring to the "reasonableness" of the reported costs. Rather, 
this provision concerns "wheth er the records … suitably  and sufficiently correspond to or reproduce  
those costs incurred by the investigated exporter or producer".403 
7.231.   Russia asserts that the reasons provided by the European  Commission  in the expiry review 
to disregard the gas prices of the Russian producer – i.e. because they were not in line with "market 
prices paid in unregulated export markets"  – are not, in themselves, sufficient to conclude that the 
gas costs were not "reasonably reflected" in the records of the Russian producer.404 For Russia, the 
European  Commission , rather, examin ed the "reasonableness" of the reported costs themselves.405 
Thus, for Russia, the European  Commission  acted inconsistently with the first sentence of  
Article 2.2.1.1 of the Anti -Dumping Agreement, by rejecting, pursuant to the second condition of  
Article  2.2.1.1, the gas prices reflected in the records of the Russian producer.406 
7.232.   The second ground for Russia's claim  concerns the use of costs that are not "associated with 
the production and sale of the product under consideration".  Russia submits that, following its finding 
that the gas costs reflected in the producer's records could not be used, the European  Commission  
calculated the costs of production on the basis of an out -of-country surrogate price, i.e. the price of 
Russian gas when sold for export at the German/Czech border (Waidhaus). However, for Russia, 
this out -of-country gas price cannot be regarded as " associated with the production and sale  of the 
product under consideration" because it has no "genuine relationship " with the costs pertaining to 
the production and sale of welded tubes and pipes in Russia.407 Therefore, for Russia, the 
European  Commission  acted inconsistently with the first sen tence of  Article  2.2.1.1 of the 
Anti-Dumping  Agreement, by failing to calculate the cost of production on the basis of " the costs 
associated with the production and sale of the product under consideration" . 
European Union  
7.233.   The European Union disagrees that the European  Commission  acted inconsistently with  
Article  2.2.1.1 of the Anti -Dumping Agreement in finding that the domestic gas prices in Russia could 
not be used for determining the cost of production and using, instead, the price of Russian gas when 
sold for export at the German/Czech border (Waidhaus) to calculate the costs of production.  
7.234.   The European Union submits that, in the expiry review for certain  welded tubes and pipes , 
the European  Commission  found that, due to the fact that "domestic gas prices  in Russia [were] 
regulated prices", these prices were "far below market prices paid in unregulated export market for 
Russian natural gas". Based on these distortions, t he European  Commission  disregarded the 
information reflected in the records of the Russ ian producer and went to look for other reliable data 
to establish the gas costs in Russia. According to the European Union, this is consistent with  
Article  2.2.1.1, since the words "normally" and " [f]or the purpose of  paragraph 2" in that provision 
confirm that there are circumstances, other than those in the two situations set out in that sentence, 
in which the obligation to base the calculation of costs on the records does not apply.408 It is also 
 
401 Russia's first written submission, para.  469. 
402 Russia's first written submission, paras.  464-476. 
403 Russia's first written submission, para.  470 (quoting Appellate Body Report, EU – Biodiesel 
(Argentina) , para.  6.26); opening statement at the first meeting of the Panel, para.  659. 
404 Russia's first written submission, para.  472.  
405 Russia's opening statement at the first meeting of the Panel, para.  658. 
406 Russia's first written submission, para.  472. 
407 Russia's first written submission, paras.  481-482. 
408 European Union's response to Panel question No . 80, para.  26. WT/DS494/R  
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  consistent with  Article  2 of the Anti -Dump ing Agreement, which requires the establishment of a 
normal value based on price or cost data that permits the establishment of a value that is "normal", 
as opposed to price or cost data that is distorted and unreliable.409 
7.235.   The European Union submits that t he European  Commission 's rejection of Russian gas costs 
is also supported by the WTO case law. In this connection, the European Union asserts that, in 
EU – Biodiesel (Argentina) , the Appellate Body did not exclude that there could be  circumstances 
where da ta on the cost of production reported by the exporter or producer cannot  be used. It also 
did not disagree that there are circumstances – beyond the two instances expressly mentioned in  
Article  2.2.1.1410, where an investigating authority needs to rely on o ther evidence tha n the data 
reported in the exporter or producer 's records to establish normal value.411 According to the 
European Union, the Appellate Body confirmed this view in Ukraine – Ammonium Nitrate .412 
7.236.   For the European Union, the Appellate Body's fi nding that the second condition in 
Article  2.2.1.1  does not amount to a "reasonableness" test of the reported costs, does not apply to 
situations  where the domestic input price is regulated.  The European Union recalls that, in 
EU – Biodiesel (Argentina ), the European  Commission  rejected the domestic price of the raw 
material - soybeans - because it was  artificially lower than the international price due to the 
Argentine export tax system . How ever, in the welded tubes and pipes expiry review, the government 
interference on gas prices is much more direct because "the Russian government sets the domestic 
gas prices and does not allow the forces of supply and demand to play at all".413 
7.237.   Finally, the  European Union submits that, in the light of the obligations Russia undertook at 
the moment of its accession to the WTO, it can reject the Russian domestic prices for gas inputs 
when they are not set on the basis of "normal commercial considerations, base d on recovery of costs 
and profits". The European Union asserts that, upon accession to the WTO, Russia confirmed its 
commitment to ensure that its producers/distributors of natural gas in the Russian Federation would 
operate, within the relevant regulator y framework, on the basis of "normal commercial 
considerations", based on recovery of costs and profit.414 According to the European Union, 
Russia's  commitment , reflected in paragraph 132 of the Working Party Report on the Accession of 
Russia to the WTO and  incorporated into its Accession Protocol , determine s how WTO law applies to 
Russia.415 
The legal standard  
7.238.   The legal standard applicable to the second condition in the first sentence of  Article  2.2.1.1 
of the Anti -Dumping Agreement is set out in para graphs  7.91-7.96. 
Evaluation by the Panel  
7.239.   As part of its examination of the likelihood of recurrence of dumping of certain  welded tubes 
and pipes, the European  Commission  assessed whether the like product was sold in the Russian 
domestic market in the ordinary course of trade, by establishing the proportion of profitable domestic 
sales to independent customers for the product type concerned. In this context, the 
European  Commission  first examined "whether the g as prices paid by the single collaborating 
exporting producer reasonably reflected the costs associated with the production and distribution of 
 
409 European Union' s second written submission, paras.  53-55; opening statement at the second 
meeting of the Panel, para.  18. 
410 As already noted, Article  2.2.1.1 directs an investigating authority to normally base its calculations of 
costs on the records of the exporter or p roducer under investigation, provided that the records comply with two 
conditions (i) they are consistent with the GAAP of the exporting country; and (ii) "reasonably reflect the costs 
associated with the production and sale of the product under considerat ion".  
411 European Union's opening statement at the first meeting of the Panel, para.  19; second written 
submission, para.  52 (referring to Appellate  Body Report, EU – Biodiesel (Argentina) , para.  6.18 and fn 120; 
Panel Report, Ukraine – Ammonium Nitrate , para.  7.80 and fn 141); and opening statement at the second 
meeting of the Panel, para.  17. 
412 European Union's second written submission, para.  52 (referring to Appellate Body Report, Ukraine – 
Ammonium Nitrate,  para. 6.87).  
413 European Union's first written submis sion, para.  114. 
414 European Union's first written submission, paras.  115-116; second written submission, para.  53; and 
opening statement at the second meeting of the Panel, para.  19. 
415 European Union's second written submission, para.  53.  WT/DS494/R  
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  gas".416 The European  Commission  concluded that the gas costs " were not reasonably reflected in 
the exporting pro ducer's records " in the light of the discrepancy  between domestic gas costs and 
external gas prices and the fact that the domestic gas prices in Russia were regulated : 
It was found that the domestic gas price paid by the exporting producers was around 
30% of the export price of natural gas from Russia. In this regard, all available data 
indicated that domestic gas prices in Russia are regulated prices, which are far below 
market prices paid in unregulated export markets for Russian natural gas. S ince gas 
costs were not reasonably reflected in the exporting producer's records as provided for 
in Article  2(5) of the basic Regulation, they had to be adjusted accordingly. In the 
absence of sufficiently representative, undistorted gas prices relating to  the Russian 
domestic market, it was considered appropriate to base the adjustment, in accordance 
with Article  2(5) of the basic Regulation, on the basis of information from other 
representative markets. The adjusted price was based on the average price of  Russian 
gas when sold for export at the German/Czech border (Waidhaus), adjusted for local 
distribution costs. Waidhaus is the main hub for Russian gas sales to the EU, which is 
both the largest market for the Russian gas and has prices reasonably reflect ing costs. 
It can therefore be considered to be a representative market within the meaning of  
Article  2(5) of the basic Regulation.417 
7.240.   In our view, the language used in the extract reproduced above could be read as suggesting 
that the European  Commission  rejected the recorded cost information of the Russian producer in 
reliance on the second condition  of the first subparagraph of  Article  2(5) of the Basic AD Regulation.  
As already  noted, this provision requires that the costs of a producer or exporter shall normally be 
calculated on the basis of its records, provided that (i) the records are in accordance with the GAAP  
of the country concerned ; and (ii) "it is shown that the records reasonably reflect the costs associated 
with the production and sale of the product under consideration ". Moreover, we note that the 
approach taken by the European  Commission  for rejecting the recorded costs in the expiry review 
for certain welded tubes and pipes constituted one of the pieces of evid ence for the application of 
the Cost Adjustment Methodology.418 As we have previously established , the reasoning set out in 
the determinations advanced by Russia to establish the existence of the Cost Adjustment 
Methodology is best understood to reveal that  the European  Commission  applies the Cost 
Adjustment Methodology to reject recorded cost information in reliance on the second  condition of 
the first subparagraph of  Article  2(5) of the Basic AD Regulation .419 As mentioned above, the 
European  Commission 's approach for rejecting recorded cost information has been defended by the 
Council of the European  Union, on precisely this legal basis, in the five court judgments submitted 
by Russia.420 
7.241.   Based on the above, we  find that, in the welded tubes and pipes  expiry review,  the 
European  Commission  rejected the recorded cost information of the Russian producer in application  
of the second condition  of the first subparagraph of  Article  2(5) of the Basic AD Regulation.  
7.242.   We recall that the second condition prescribed in  Article  2(5) of the Basic 
AD Regulation  stipulates that "it must be shown that the records reasonably reflect the costs 
associated with the production and sale of the product under consideration". This languag e is 
virtually identical to the text of  Article  2.2.1.1 of the Anti -Dumping Agreement.  As already noted, in 
EU – Biodiesel (Argentina)  the Appellate Body understood t he second condition in the first sentence 
of Article  2.2.1.1 to relate to whether the producer's records "suitably and sufficiently correspond to 
or reproduce those costs incurred by the investigated exporter or producer that have a genuine 
relationship with the production and sale of the specific product under consideration ".421 Because it 
is the "records" that are subject to the condition to "reasonably reflect" the "costs associated with 
the production and sale of the product under consideration" , there is no standard of " reasonableness " 
under the second condition that governs the meaning of "costs" itself . Accordingly, the second 
condition in  Article  2.2.1.1 "should not be interpreted in a way that would allow an investigating 
 
416 Regulation  2015/110, (Exhibit  RUS-21), recital  68. 
417 Regulation  2015/110, (Exhibit  RUS-21), recital  69. The Panel notes that the determination does not 
reflect whether the Russian producer challenged the price of gas chosen by the European  Commission  during 
the underlyi ng review.  
418 See para.  7.45 above.  
419 See para.  7.97 above.  
420 See para.  7.97 above.  
421 Appellate  Body Report, EU – Biodiesel (Argentina) , para.  6.56. WT/DS494/R  
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  authority to evaluate the costs reported in the records … pursuant to a benchmark unrelated to the 
cost of product ion in the country of origin".422 
7.243.   In light of the above , we consider that , in the expiry review for certain welded tubes and 
pipes, the European  Commission  improperly applied the second condition in the first sentence of  
Article  2.2.1.1 by rejecting the Russian producer's gas costs on the grounds that they were not 
reflected in the records .423 
7.244.   The European Union argues that the Appellate Body's understanding of the second condition  
in EU – Biodiesel (Argentina) , i.e. that the second condition in Article  2.2.1.1 does not include an 
examination of the "reasonableness" of the reported costs themselves, would not be applicable to 
situations like those allegedly prevailing in Russia, where domestic gas prices are regulated , such 
that there is no effective interaction of supply and demand  in the gas market .424 Russia disagrees 
that Article  2.2.1.1 of the Anti -Dumping Agreement provide s the legal basis for the examination of 
government regulation , including how the government exercises its right to control prices  and the 
effects thereof .425 
7.245.   As already noted, i n EU – Biodiesel (Argentina) , the government measure that was found to 
render the recorded costs unusable for the calculation of the costs of production was the Argentine 
export tax system, which had the effect of depressing the domestic price of the relevant inputs to 
an "artificially -low level".426 The Appellate Body agreed with the panel that the 
European  Commission 's determination that domestic prices of soybeans in Argen tina were lower 
than international prices due to the Argentine export tax system  was not, in itself, a sufficient basis 
under  Article  2.2.1.1 for concluding that the producers' records do not reasonably reflect the costs 
of soybeans associated with the pro duction and sale of biodiesel, or for disregarding those costs 
when constructing the normal value of biodiesel.427 
7.246.   We see nothing in the panel or the Appellate Body report in EU – Biodiesel (Argentina)  
suggest ing that the nature of the government measure, or the extent of its impact on domestic 
costs, was relevant to the panel's or Appellate Body's conclusions in relation to the second condition 
under  Article  2.2.1.1. In fact , in a subsequent dispute  (Ukraine – Ammonium Nit rate), in which gas 
prices were found to be controlled by the State and artificially lower than the export price of gas 
from Russia and the price of gas in other countries, the Appellate Body confirmed its understanding 
of the second condition in  Article  2.2.1.1 : there is no standard of reasonableness under that 
condition that governs the meaning of "costs" itself, which would allow investigating authorities to 
disregard domestic input prices when such prices are lower than an international benchmark.428 
Therefore, we disagree with th e European Union that the Appellate  Body's  understanding of the 
second condition  in EU – Biodiesel (Argentina)  would not be applicable to the facts underlying the 
expiry review for certain  welded tubes and pipes .429 
 
422 Appellate  Body Reports, EU – Biodiesel (Argentina) , para.  6.23; Ukraine – Ammonium Nitrate , 
para. 6.88. 
423 We note Russia's allegation that the records of the Russian producer were in accordance with the 
GAAP  of the country concerned . Because the determination does not address whether the records of the 
Russian producer were GAAP -consiste nt, we understand the European  Commission  did not examine whether 
the first condition in the first sentence of Article  2.2.1.1 was satisfied. Hence, we refrain from expressing a 
view on whether the records of the Russian producer were GAAP -consistent. In a ny event, given that 
Russia's  claim is focused on the second  condition in the first sentence of Article  2.2.1.1, it is irrelevant to us 
whether the records were GAAP -consistent or not.  
424 European Union's first written submission, para.  114. 
425 Russia's open ing statement at the first meeting of the Panel, para.  91; second written submission, 
para. 670. 
426 Panel Report, EU – Biodiesel (Argentina) , para.  7.299.  
427 Appellate  Body Report, EU – Biodiesel (Argentina) , para.  6.55. 
428 Appellate  Body Report, Ukraine – Ammonium Nitrate, para. 6.88.  
429 We note that the panel in Ukraine – Ammonium Nitrate  rejected an argument similar to that raised 
by the European Union in the case before us. In that dispute,  the respondent (Ukraine) argued that the factual 
circumstances in EU – Biodiesel (Argentina)  were different to those prevailing in Russia, because in EU – 
Biodiesel (Argentina)  the investigating authority did not find any evidence of direct state intervention in 
regulating the costs of input and the distortion was not ap preciable, even though the Argentinian export tax 
system had a price depressing effect on input prices. The panel was of the view that the reports of the panel 
and the Appellate Body in EU – Biodiesel (Argentina)  do not suggest that "the economic level, an d the direct or 
 WT/DS494/R  
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  7.247.   We note the Eu ropean Union's argument that the rejection of "distorted" gas cost information 
reflected in the Russian producer's records was justified by  two set s of reasons. First, by the words 
"normally" and " [f]or the purpose of  paragraph 2" in Article  2.2.1.1, which confirm that there are 
circumstances, other than those in the two situations set out in the first sentence of  Article  2.2.1.1 , 
in which the obligation to base the calculation of costs on the records does not apply . Second, by  
Article  2 of th e Anti -Dumping Agreement, which requires the establishment of a normal value based 
on price or cost data that permits the establishment of a value that is "normal", as opposed to price 
or cost data that is distorted and unreliable.   
7.248.   We do not consider this  argument to be relevant to resolve Russia's claim  in relation to the 
rejection of recorded gas costs in the welded tubes and pipes expiry review . As already noted, the 
European  Commission  relied upon the second condition in the first sentence of  Article  2.2.1.1 to 
disregard the domestic costs gas of the Russian producer. Moreover, the anti-dumping determination 
does not indicate that the European  Commission  relied on the term "normally" in the first 
subparagraph of  Article  2(5) when it rejected the recorde d input prices. If the European  Commission  
had derogated from the requirement in  Article  2(5) that "costs … shall normally be calculated on the 
basis of … records", one could have expected to find an explanation of such derogation in the 
determination. How ever, no such explanation is present  in Regulation  2015/110 . Accordingly, our 
analysis of whether the European  Commission  improperly rejected the recorded gas costs should be 
focuse d on the operation of the second condition in  Article  2.2.1.1.  We thus do not consider it 
necessary to examine whether the rejection of the recorded costs was justified pursuant to  another 
circumstance, as explained by the European Union, as ultimately, there is no evidence that this is 
what motivated the European  Commission 's determination . 
7.249.   Moreover, the European Union argues that the European  Commission  was entitled to 
disregard the cost of gas reflected in the producer' s records because, during its accession process 
to the WTO, Russia committed to ensure that natural gas produ cers/distributors  would operate on 
the basis of "normal commercial considerations ". However, according to the European Union, gas 
prices in Russia continue to be set by the government and , thus, remain far below market prices . 
Russia responds that paragraph 132 of the Working Party Report does not provide any legal 
justification for the European  Commission 's decision to reject the reported gas prices and to use 
instead the surrogate gas price.430 Paragraph 132 of the Working Party Report belongs to a section  
of the Report " entitled 'Pricing Policies ' which covers a subject matter which is distinct from 
commitments in the separate section on anti -dumping ".431 For Russia, only an "explicit commitment" 
in a section of the Accession Protocol or Working Party Report specifically dedicated to rules on 
anti-dumping may be considered as a legal basis  for the European Union's position.432 
7.250.   Paragraph 132, in the section concerning " Pricing Policies " of the Working Party Report on 
Russia's accession to the WTO, states:  
In response to the concerns expressed, the representative of the Russian Federation 
stated that upon accession, producers/distributors of natural gas in the 
Russian  Federation would operate, within the relevant regulatory framework, on the 
basis of normal commercial considerations, based on recovery of costs and profit. He 
confirmed that the policy of his Government was to ensure, upon accession, that these 
economic operators, in respect of their supplies to industrial users, would recover t heir 
costs (including the cost of production, overheads, financing charges, transportation, 
maintenance and upgrade of extraction and distribution infrastructure, investment in 
the exploration and development of new fields) and would be able to make a prof it, in 
the ordinary course of their business. He added that his Government would continue to 
regulate price supplies to households and other non -commercial users, based on 
 
indirect nature of the regulation in question", were relevant to the panel's or Appellate Body's analysis of the 
second condition under Article  2.2.1.1 . (Panel Report, Ukraine – Ammonium Nitrate, para. 7.91).  
430 Russia's second written submi ssion, para.  689; opening statement at the second meeting of the 
Panel, para.  114. 
431 Russia's second written submission, para.  688.  
432 Russia's second written submission, para.  687.  WT/DS494/R  
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  considerations of domestic social policy. The Working Party took note of these 
commi tments.433 
7.251.   This paragraph records the statement of the representative of Russia  that 
producers/ distributors  of natural gas in Russia "would operate  … on the basis of normal commercial 
considerations, based on recovery of costs and profit ". There is, however , no indication in 
paragraph  132 that this statement was meant to establish the legal basis to disregard domestic gas 
costs in Russia, pursuant to the second condition in  Article  2.2.1.1 , for reasons that these costs are 
regulated or far below market price s paid in unregulated export markets for Russian natural gas. 
Moreover, paragraph 132 does not make any reference to the Anti -Dumping Agreement, or  
Article  VI:1 of the GATT 1994, and does not refer directly or indirectly to the calculation of the costs 
of production or normal value for Russian producers/exporters in anti -dumping proceedings. In this 
regard, unlike the instruments concerning the accession to the WTO of certain other Members434, 
the Protocol of Accession of Russia does not contain specific rules applicable to 
anti-dumping  proceedings conducted by foreign investigating authorities in relation to Russian  
imports . For these reasons, we disagree that the commitment reflected in paragraph 132 of the 
Working Party Report on Russia's accession to the WTO justifies the rejection of the cost of natural 
gas in the expiry review for welded tubes and pipes.  
Conclusion  
7.252.   In light of the above , we find that the European  Commission  rejected the costs reflected  in 
the records of the producer under investigation in a manner  inconsistent with the second condition 
of the first sentence of  Article  2.2.1.1 of the Anti -Dumping Agreement . Therefore, we find that, in 
the expiry review on certain welded tubes and pipes, the European  Commission  acted inconsis tently 
with the first sentence of  Article  2.2.1.1.  
7.253.   Having already concluded that the European  Commission  had no valid basis to reject the gas 
costs reflected in the records of the investigated producer, we do not find it necessary to resolve the 
question w hether the European  Commission  acted inconsistently with the first sentence of  
Article  2.2.1.1 by using costs other than " the costs associated with the production and sale of the 
product under consideration ".435 We, therefore, exercise judicial economy on this claim.  
Russia's claim  under  Article  2.2.1   
Main arguments of the parties  
Russia  
7.254.   Citing the panel in EC – Salmon (Norway) , Russia asserts that the rules for calculating the 
costs used in a determination  of whether below -cost sales may be tre ated as not being made in the 
ordinary course of trade by reason of price , are found in  Article  2.2.1.1  of the 
Anti-Dumping  Agreement .436 Russia further notes that, in Ukraine – Ammonium Nitrate , the panel 
 
433 This commitment is part of the obligations that Russia undertook at the  moment of accession and 
incorporated in its Accession Protocol. (Working Party Report on the Accession of the Russian Federation to the 
WTO, WT/ACC/RUS/70, paras.  132 and 1450; Protocol of Accession of the Russian Federation, para.  2). 
434 For instance, Vie t Nam's Accession Protocol sets out specific provisions for "determining price 
comparability under Article  VI of the GATT 1994 and the Anti -Dumping Agreement" in "proceedings involving 
exports from Viet Nam into a WTO Member". (Working Party Report on the Accession of Viet Nam to the WTO, 
WT/ACC/VNM/48, paras.  255 and 527; Protocol of Accession of Viet Nam, para.  2). 
435 In this regard, we note that, in relation to this second claim  by Russia under Article  2.2.1.1, the 
parties have relied substantially on Art icle 2.2, including the possibility of calculating the costs of production in 
the country of origin using information other than that reflected in the records and the adaptation of external 
information in order to arrive at the costs of production in the c ountry of origin. However, because 
Russia's  claim is not based on Article  2.2 of the Anti -Dumping Agreement, we refrain from addressing these 
arguments.  
436 Russia's second written submission, para.  729 (referring to Panel Report, EC – Salmon (Norway), 
para. 7.252).  WT/DS494/R  
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  considered that the costs used in the ordinary -course-of-trade test under  Article  2.2.1 must be 
consistent with  Article  2.2.1.1.437  
7.255.   Russia asserts that, in performing the ordinary -course -of-trade test in the expiry review, the 
European  Commission  used costs of production calculated inconsistently with  Article  2.2.1.1. 
According to Russia, because the gas costs in the welded tubes and pipes exp iry review  were 
calculated inconsistently with  Article  2.2.1.1, the use of these improperly established costs of 
production in the ordinary -course -of-trade test i s also inconsistent with  Article  2.2.1.438 
European Union  
7.256.   The European Union argues that Russia has failed to demonstrate that, if the 
European  Commission  had relied on the "distorted domestic gas costs in Russia", it would necessarily 
have reached the conc lusion that the sales of the product in the domestic market of Russia were in 
the ordinary course of trade.439 
Legal standard  
7.257.   Article  2.2.1 of the Anti -Dumping Agreement provides:  
Sales of the like product in the domestic market of the exporting country or sales to a 
third country at prices below per unit (fixed and variable) costs of production plus 
administrative, selling and general costs may be treated as not being in the ordinary 
course of trade by reason of price and may be disregarded in determining n ormal value 
only if the authorities determine that such sales are made within an extended period of 
time in substantial quantities  and are at prices which do not provide for the recovery of 
all costs within a reasonable period of time. If prices which are below per unit costs at 
the time of sale are above weighted average per unit costs for the period of 
investigation, such prices shall be considered to provide for recovery of costs within a 
reasonable period of time.440  
7.258.   Under Article  2.2.1, investigating authorities may treat below -cost sales of the like product  
as not being "in the ordinary course of trade" by  reason of price, and may disregard such sales in 
determining  the normal value "only if" the authorities determine that such sales wer e (i) made within  
an extended period of time; (ii) in substantial quantities; and (iii) at prices which do not provide for 
the recovery of all costs within a reasonable period of time.441 The below -cost sales that may 
potentially be treated as not being mad e in the ordinary course of trade by reason of price must be 
ascertained.442 This initial step requires investigating authorities to identify sales made at prices 
below "per unit (fixed and variable) costs of production plus administrative, selling and gene ral 
costs" .443 In relation to the costs of production to consider in this assessment, the panels in EC – 
Salmon (Nor way) and Ukraine – Ammonium Nitrate understood that the rules for calculating the 
costs used in the determination of whether below -cost sales may be treated as not being made in 
the ordinary course of trade by reason of price are found in  Article  2.2.1.1.444 We agree with this 
understanding.  
Evaluation by the Panel  
7.259.   As mentioned above, in the expiry review of certain  welded tubes and pipes,  the 
European  Commission  examined "whether the like product was sold in the ordinary course of trade", 
 
437 Russia's first written submission, para.  474 (referring to Panel Report, Ukraine – Ammonium Nitrate, 
para. 7.116).  
438 Russia's first written sub mission, paras.  473-475. 
439 European Union's response to Panel question No. 81, para.  28. The European Union also submits 
that, to the extent that Russia's claims  under Article  2.2.1.1 fail, Russia's consequential claim  under 
Article  2.2.1 of the Anti -Dumpi ng Agreement should also be rejected. However, in case the Panel would 
consider that the European Union acted inconsistently with Article  2.2.1.1, for the European Union there would 
be no reason to find a violation of Article  2.2.1. 
440 Fns omitted.  
441 Appellate Body Reports, China – HP-SSST (Japan) / China – HP-SSST (EU) , para.  5.22. 
442 Panel Report, EC – Salmon (Norway) , para. 7.232.  
443 Panel Report, EC – Salmon (Norway) , para.  7.232.  
444 Panel Reports, EC – Salmon (Norway) , para.  7.252; Ukraine – Ammonium Nitrate , para. 7.116.  WT/DS494/R  
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  by establishing the proportion of profitable domestic sales to independent customers for the product 
type concerned.445 In the light of its findings that g as costs could not be used and that they "had to 
be adjusted" on the basis of the "price of Russian gas when sold for export at the German/Czech 
border (Waidhaus) ", the European  Commission  used for the ordinary -course -of-trade test "the 
average cost of pro duction after the adjustment for the gas cost".446 
7.260.   We recall our previous finding that the European  Commission  improperly rejected the costs 
reflected in the records  of the Russian producer , in a manner inconsistent with  the first sentence of 
Article  2.2.1. 1. Accordingly, in conducting the ordinary -course -of-trade test, the 
European  Commission  relied upon costs of production that were calculated inconsistently with  
Article  2.2.1.1. Consequently, it must necessarily follow that the 
European  Commission 's ordinary -course -of-trade test was also inconsistent with  Article  2.2.1 of the 
Anti-Dumping Agreement.  
7.261.   We note the European Union's argument that, for Russia's claim  to succeed , Russia would 
be required to show that the European  Commission  would have reached the conclusion that domestic 
sales were in the ordinary course of trade, had it relied on domestic gas costs.  However, we do not 
consider that the obligation under  Article  2.2.1 to use , in the ordinary -course -of-trade test, costs of 
production determined in a manner consistent with  Article  2.2.1.1  is conditioned on a demonstration 
that compliance with that rule would lead to a different conclusion compared with non -compliance . 
Conclusion  
7.262.   In light of the above, we find that the European  Commission  acted inconsistently with  
Article  2.2.1 of the Anti -Dumping Agreement because, in making its determinations under this 
provision, it relied on costs that were calculated inconsistentl y with  Article  2.2.1.1 of the 
Anti-Dumping Agreement.  
Russia's claim  under  Article  11.3 
7.263.   Pursuant to  Article  11(2) of the Basic AD Regulation, in the expiry review for welded tubes 
and pipes, the European  Commission  examined whether dumping  was likely to re cur.447 To this end, 
the European  Commission  examined (i) the " [l]ikely dumping during the review investigation 
period"448; and (ii) the " [d]evelopment of exports should measures be repealed ".449  
7.264.   As part of its assessment of the " [l]ikely dumping during the review investigation perio d", 
as mentioned above, the European  Commission  used for the ordinary -course -of-trade test the 
average cost of production after the adjustment for the gas cost. The adjusted costs of production 
were then used for the establishment of the normal value. Specifically, the European  Commission  
established normal value "as the average price of the profitable domestic sales during the review 
investigation period".450 Subsequently, the European  Commission  determined  the likely export 
price.451 Based on these findings, the European  Commission  established a "likely dumping margin" 
of 38,7% during the review investigation period.452 
7.265.   As part of its assessment of the " [d]evelopment of exports should measures be repealed ", 
the European  Commission  examined two factors (i) first, the p roduction capacity of the exporting 
producers , concluding that "there [was] a substantial risk that Russian exporting producers will sell 
significant quantities of welded pipes to the Union market  at dumped prices"453; and (ii) the 
 
445 Regulation  2015/110, (Exhibit  RUS-21), recital  67. 
446 Regulation  2015/110, (Exhibit  RUS-21), recital  70. (emphasis added)  
447 Regulation  2015/110, (Exhibit  RUS-21), recital  16. 
448 Regulation  2015/110, (Exhibit  RUS-21), recitals  65-78. 
449 Regulation  2015/110, (Exhibit  RUS-21), recitals  79-86. 
450 Regulation  2015/110, (Exhibit  RUS-21), recital  71. 
451 The European  Commission  explained that the significant non -cooperation from exporting producers 
in Russia led the Commission to  use facts available in establishing the likely export price. 
(Regulation  2015/110, (Exhibit  RUS-21), recitals  72-73). 
452 Regulation  2015/110, (Exhibit  RUS-21), recital  78. 
453 Regulation  2015/110, (Exhibit  RUS-21), recital  80. WT/DS494/R  
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  attractiveness of the Union market , finding that "there [was] a significant risk of trade diversion to 
the Union market should measures be repealed".454 
7.266.   In relation to the likelihood of recurrence of dumping, the European  Commission  concluded 
in recital 87:  
The available spare capacity in Russia and the attractive price level in the Union market 
lead to the conclusion that there is a risk of an increase in Russian dumped exports of 
the product concerned to the Union should the measures in force be allowed to lapse.455 
7.267.   Russia claims  that the European  Union acted inconsistently with  Article  11.3 of the 
Anti-Dumping Agreement because the European  Commission  determined the likelihood of 
recurrence of dumping based on a dumping margin established by using costs of production 
calculated in violation of  Articles  2.2.1.1 and 2.2.1 of the Anti -Dumping Agreement.456 In Russia's 
view, if an investigating authorit y choose s to rely upon dumping margins in making their likelihood 
determination  in reviews , the calculation of these margins must conform to the disciplines of  Article  2 
of the Anti -Dumping Agreement .457  
7.268.   The European Union submits that Russia has not demonstrated that the conclusion on the 
likelihood of recurrence of dumping would have been altered, had the European  Commission  relied 
on the distorted domestic gas  costs in Russia.458  
7.269.   Article 11.3 of the Anti -Dumping Agreement provides:  
Notwithstanding the provisions of paragraphs 1 and 2, any definitive anti -dumping duty 
shall be terminated on a date not later than five years from its imposition (or from the 
date o f the most recent review under paragraph 2 if that review has covered both 
dumping and injury, or under this paragraph), unless the authorities determine, in a 
review initiated before that date on their own initiative or upon a duly substantiated 
request m ade by or on behalf of the domestic industry within a reasonable period of 
time prior to that date, that the expiry of the duty would be likely to lead to continuation 
or recurrence of dumping and injury. The duty may remain in force pending the outcome 
of such a review.459 
7.270.   In relation to the calculation of dumping margin in reviews conducted pursuant to  
Article  11.3, we understand that, while investigating authorities are not required to calculate a 
dumping  margin , should they choose to rely upon dumping ma rgins in making their likelihood 
determination, the calculation of these margins must conform to the disciplines of  Article  2. 
If margins were legally flawed because they were calculated in a manner inconsistent with a specific 
provision of  Article  2, this  could give rise to an inconsistency not only with that provision, but also 
with Article  11.3 of the Anti -Dumping Agreement. In such circumstances, "the likelihood  
[-of-dumping] determination could not constitute a proper foundation for the continuation of 
anti-dumping duties under  Article  11.3."460 
7.271.   We note that, as asserted by Russia, the European  Commission  determined the likelihood of 
recurrence of dumping based on, inter alia , the likely dumping margin established by the 
European  Commissio n during the review investigation perio d. This "likely dumping margin" was 
determined to be 38,7% during the review investigation period. Moreover, as reflected in recital 87 
 
454 Regulation  2015/110, (Exhibit  RUS-21), recital  86. 
455 Regulation  2015/110, (Exhibit  RUS-21), recital  87. 
456 Russia's first written submission, paras.  483-485; comments on the European  Union's  response to 
Panel question No. 81, para.  116. 
457 Russia's first wr itten submission, para.  452 (referring to Appellate Body Report, 
US – Corrosion -Resistant Steel Sunset Review , para.  127). 
458 European Union's response to Panel question No. 81, para.  29. The European Union also submits 
that, to the extent that Russia's cla ims under Article  2.2.1.1 fail, Russia's consequential claim  under 
Article  11.3 of the Anti -Dumping Agreement should also be rejected. However, in case the Panel would 
consider that the European Union acted inconsistently with Article  2.2.1.1, for the Euro pean Union, there would 
be no reason to find a violation of Article  11.3. 
459 Fn omitted.  
460 Appellate Body Reports, US – Corrosion -Resistant Steel Sunset Review , para.  127; US – Zeroing 
(Japan) , para.  183. WT/DS494/R  
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  of the anti -dumping determination, the available spare capacity in Russia and the  attractive price 
level in the Union market " [led] the [European  Commission ] to the conclusion that there [was] a 
risk of an increase in Russian dumped exports  of the product concerned to the Union should the 
measures in force be allowed to lapse". The ref erence to "Russian dumped exports" , and the 
determination of a dumping margin as part of the decision, persuade us that the likely dumped price 
was one of the factors that prompted the European  Commission 's positive conclusion that dumping 
was likely to recur in the absence of measures.  We further note that the European Union does not 
deny that the  European  Commission  had relied upon the likely margin of dumping in reaching a 
positive conclusion on the likely recurrence of dumping.  
7.272.   We recall our previous findings that, in determining normal value for the purpose of 
establishing the likely dumping margin, the European  Commission  (i) improperly rejected the costs 
reflected in the records  of the Russian producer , in a manner inconsisten t with  the first sentence of 
Article  2.2.1.1 ; and (ii) relied upon costs of production that were calculated inconsistently with  
Article  2.2.1  in applying the ordinary -course -of-trade test . 
7.273.   Because the European  Commission  established the likelihood of recur rence of dumping 
relying upon a dumping margin established on the basis of costs of production calculated in violation 
of Article  2.2.1.1 and  Article  2.2.1, the European  Commission 's determination of the likelihood of 
recurrence of dumping contravened  Article 11.3 of the Anti -Dumping Agreement.  
7.274.   Therefore, we find  that the European  Commission  acted inconsistently with  Article  11.3 of 
the Anti -Dumping Agreement, by basing its conclusion that dumping was likely to recur on costs of 
production calculated in vio lation of  Articles  2.2.1.1 and 2.2.1 of the Anti -Dumping Agreement.  
7.7  Russia's claims  concerning the anti -dumping measures imposed by the 
European  Union on imports of ammonium nitrate from Russia and the underlying 
investigations and reviews  
7.275.   Russia makes a series of claims  regarding the imposition of anti -dumping measures by the 
European  Union on AN from the R ussian Federation  and the expiry review which led to the imposition 
of these measures ("the Third Expiry Review") .461 Russia groups its claims  into five categories:  
i. claims  regarding the product scope of the expiry review;  
ii. claims  against the EU 's determina tion of likelihood of recurrence of injury;  
iii. claims  against  the EU 's determination of  likelihood of recurrence of dumping;  
iv. claims  regarding the continuous levying of anti -dumping measures on imports of 
AN originating in Russia; and 
v. claims  regarding the co nduct of the expiry review.  
7.276.   We recall that, as a general principle, panels are free to structure the order of their analysis 
as they see fit. In so doing, panels may find it useful to take account of the manner in which a 
claim  is presented to them by a co mplaining Member.462 In view of the claims  and arguments made 
by the parties in this dispute, we have decided to start our examination by reviewing Russia's 
claims  on the product scope of the expiry review, before turning to claims  against the 
EU's determination s of likelihood of recurrence of injury and likelihood of recurrence of dumping. We 
will then take up claims  regarding the continuous levying of anti -dumping measures on imports of 
AN and, finally, claims  related to the conduct of the expiry review.  
 
461 In Section III.B ("Legal Basis for the Complaint")  of its request for the establishment of a panel, 
Russia lists a total of 22 claims, labelled claim  #1 to claim  #22. In its written submissions, Russia does not 
provide any further explanation regarding claim  #10 (" [t]he European Union violated Articles  11.3 of the ADA 
by proceeding to the determination of the likelihood of recurrence of dumping without first determining the 
likelihood of continuation of dumping"), so the Panel considered that Russia is no longer pursuing this claim.  
462 Appellate Body Repor t, Canada – Wheat Exports and Grain Imports , para.  126. WT/DS494/R  
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  7.277.   At the  outset, we note that the European Union makes a horizontal preliminary objection 
about the applicability of the Anti -Dumping Agreement to certain claims  presented by Russia. 
We address this preliminary objection before turning to Russia's individual claim s. 
Whether certain claims  presented by the Russian Federation should be rejected by 
the Panel because they concern pre -WTO determinations  
7.278.   The European  Union submit s that, by virtue of  Article  18.3, the provisions of the 
Anti-Dumping Agreement and Article V I of the GATT 1994 apply only to investigations, and reviews 
of existing measures, initiated pursuant to applications which have been made on or after the date 
of entry into force for a Member of the WTO Agreement . Since  Russia became a Member of the WTO 
on 22 August 2012, only determinations made in connection with reviews initiated after this date 
can be subject to review by this Panel .463  
7.279.   We start by reviewing  Article  18.3 of the Anti-Dumping Agreement , which  states:  
Subject to subparagraphs 3.1 and 3.2,  the provisions of this Agreement shall apply to 
investigations, and reviews of existing measures, initiated pursuant to applications 
which have been made on or after the date of entry into force for a Member of the 
WTO Agreement.  
7.280.   Article  18.3 deals with t he temporal applicability of the Anti -Dumping Agreement and the 
admissibility of claims  made before panels on the basis of this Agreement. It was interpreted by the 
panel in US – DRAM S as follows:  
In our view, pre -WTO measures do not become subject to the AD Agreement simply 
because they continue to be applied on or after the date of entry into force of the 
WTO Agreement for the Member concerned. Rather, by virtue of the ordinary meaning 
of the terms of  Article  18.3, the AD Agreement applies only to "re views of existing 
measures" initiated pursuant to applications made on or after the date of entry into 
force of the AD Agreement for the Member concerned ("post -WTO reviews"). However, 
we do not believe that the terms of  Article  18.3 provide for the applic ation of the 
AD Agreement to all aspects of a pre -WTO measure simply because parts of that 
measure are under post -WTO review. Instead, we believe that the wording of  
Article  18.3 only applies the AD Agreement to the post -WTO review. In other words, 
the sco pe of application of the AD Agreement is determined by the scope of the 
post-WTO review, so that pursuant to  Article  18.3, the AD Agreement only applies to 
those parts of a pre -WTO measure that are included in the scope of a post -WTO review. 
Any aspects of  a pre-WTO measure that are not covered by the scope of the post -WTO 
review do not become subject to the AD Agreement by virtue of  Article  18.3 of the 
AD Agreement .464 
7.281.   The panel in that dispute went on to find  that the product scope was determined "once and  
only once in the original pre -WTO investigation, well before the entry into force of the 
WTO Agreement for the United States on 1 January 1995."465 The product scope determination was 
not part of the post -WTO "review" and accordingly was found not to be subject to the 
Anti-Dumping  Agreement, rendering Korea's product scope claim  inadmissible.  
7.282.   The panel, in Brazil – Desiccated Coconut , reached a simil ar conclusion in examining  
Article  32.3 of the SCM Agreement (the analogue of  Article  18.3 of the Anti -Dumping Agreement):  
Article  32.3 defines comprehensively the situations in which the SCM Agreement applies 
to measures which were imposed pursuant to inv estigations not subject to that 
Agreement. Specifically, the SCM Agreement applies to "reviews of existing measures " 
initiated pursuant to applications made on or after the date of entry into force of the 
WTO Agreement. It is thus through the mechanism of reviews provided for in the 
SCM Agreement, and only through that mechanism, that the Agreement becomes 
 
463 European Union's first written submission, paras.  130 and 154. See also ibid. paras.  149, 151 -152, 
370, and 429.   
464 Panel Report, US – DRAMS , para.  6.14. (emphasis added; fn omitted)  
465 Panel Report,  US – DRAMS , para.  6.16. WT/DS494/R  
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  effective with respect to measures imposed pursuant to investigations to which the 
SCM Agreement does not apply.466 
7.283.   Also relevant to this issue  is the dec ision of the panel in US – Shrimp (Viet Nam) , in which  
the panel examined administrative reviews of an anti -dumping order taken  before the date of 
Viet Nam's  accession to the WTO. In that proceeding, Viet Nam challenge d an "all others" rate 
calculated in t he original investigation. In response, the United States argued that because the 
USDOC merely continued to apply the "all others" rate from the original  investigation in the period 
following  Viet Nam's accession to the WTO, the "all others" rate was not subject to WTO review , due 
to Article  18.3. The Panel rejected the United States' argument and distinguished the factual 
situation there from the situation in US – DRAM S: 
We are unable to accept the United States' argument which, in our view, is not 
supported by the findings of the panel in US – DRAMS . In US – DRAMS , the 
determination at issue – that of the product coverage of the Anti -Dumping measures at 
issue – was determ ined once, before the entry into force of the WTO Agreement, and 
never subsequently reconsidered. By contrast, the evidence before us shows that the 
USDOC made a new and distinct "all others " rate determination in each of the 
administrative reviews which a re before us. … The mere fact that the "all others" rate 
ultimately applied was not recalculated does not change the extent of the analysis 
inherent in the USDOC's new determination to continue to apply that rate.  
… 
In sum, the evidence before us shows th at the "all others " rates applied in each of the 
administrative reviews at issue were subject to full consideration by the USDOC in each 
case. … Accordingly, the United States' citation to the findings of the panel in 
US – DRAMs  is inapposite.467 
7.284.   We agree w ith the interpretations of  Article  18.3 of the Anti -Dumping Agreement developed 
by the panels in US – DRAM S and US – Shrimp  (Viet Nam ). As we understand them, these 
interpretations indicate that where a post-WTO investigation or review modif ies or re-exami nes only 
a particular aspect of  a pre-WTO investigation or review, that aspect must conform with the rules of 
the Anti -Dumping Agreement and, therefore, may be open to challenge despite the fact that it 
formed part of a measure imposed prior to the entry into force of the WTO. However, where there  
is no re -examination of a pre-WTO measure, or a certain aspect of the pre -WTO investigation or 
review,  Article  18.3 holds that the specific measure, or aspect of the pre -WTO measure, is not 
subject to the disciplines of the Anti -Dumping Agreement.  
7.285.   Russia argues that  Article  18.3 does not preclude its complaint against certain aspects of the 
European Union's challenged measures. Russia presents  two main lines of arguments in support of 
its position.  
Article  18.3 does not apply because it is a transitional provision  
7.286.   First, Russia argues that  Article  18.3 of the Anti-Dumping Agreement does not apply in this 
dispute as it is a transitional provision that was designed to regulate the transition from the time 
that the Tokyo Round Anti -Dumping Code was in effect to the entry into force of the Uruguay Round 
Anti-Dumping  Agreement. For Russia,  Article  18.3 applied only in the specific circumstances when 
an anti -dumping proceeding "was underway at the time of entry int o force of the 
WTO Agreement".468 Thus Russia argues that "Article  18.3 does not concern an accession  to the 
WTO Agreement", which by definition took place after the entry into force of the WTO Agreement.  
 
466 Panel Report, Brazil – Desiccated coconut , DSR 1997:I, p.  270. 
467 Panel Report, US – Shrimp (Viet Nam) , paras.  7.221 -7.222.  
468 Russia's second written submission, para.  737 (quoting Appellate Body Report, Brazil – Desiccated 
Coconu t, DSR 1997:I, p.  18. In that case, the Appellate Body was examining the terms of Article  32.3 of the 
SCM Agreement, which corresponds to Article  18.3 of the Anti -Dumping Agreement).  WT/DS494/R  
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  7.287.   Russia's  objection raises two interrelated questions, the first being whether or not  
Article  18.3 applied only at a certain point in time  and the second concerning its applicability to 
acceding Members.  
7.288.   When examining the plain text of  Article  18.3, there is no indication that it was designed to 
apply only during the transitional period between the application of the Tokyo Round 
Anti-Dumping  Code and the entry into force of the Anti -Dumping Agreement, as Russia's line of 
argument would seem to imply. Russia argue s that it follows from the terms of  Article  18.3 that the 
relevant point in time for the application of the Anti -Dumping Agreement is the time of entry into 
force of the WTO Agreement in 1995, because the application of  Article  18.3 is explicitly limited t o 
"specific circumstances where [an anti -dumping] proceeding, either an investigation or a review, 
was underway at the time of entry into force of  the WTO Agreement ".469 This view, however, is not 
consistent with the actual wording of  Articles  18.3 and 18.3 .2, which refer to the "entry into force 
for a Member  of the WTO Agreement" rather than to the "entry into force of the WTO Agreement " 
per se. The term "for a Member" indicates clearly that the temporal application of the 
Anti-Dumping  Agreement – in this i nstance the ability to bring a claim  under that agreement – is 
subject to the date of entry into force of the WTO Agreement for each individual WTO Member. For 
Russia this date is 22 August 2012. In this light, accepting that Russia is entitled to bring a 
claim  under the Anti -Dumping Agreement against a determination made prior to Russia's accession 
to the WTO would effectively hold an importing Member retroactively to obligations it never had 
vis-à-vis Russian imports at the time of the relevant determinat ions. In our view, this is precisely 
the type of situation that the transition rule in  Article  18.3 is intended to avoid.470  
Article  18.3 only regulates the entry into force of the Anti -Dumping Agreement 
for importing Members  
7.289.   Russia's second main line of argument in support of its interpretation of  Article  18.3 is that 
the term "a Member" found in  Article  18.3 exclusively refers to an importing Member, not to an 
exporting Member. According to Russia, this is because the Agreement regulates investigation s and 
reviews conducted by an importing Member. Thus, Russia argues that  Article  18.3 does not establish 
any rules governing when Russia, as an exporter, is entitled to rely upon its rights under the 
Anti-Dumping  Agreement.471 The European Union responds th at Russia’s interpretation would create 
an imbalance between the rights and obligations provided in the Anti-Dumping  Agreement, such 
that rights would somehow begin to apply before the corresponding obligations. For the 
European  Union, it would, in effect,  apply the Anti-Dumping  Agreement retroactively to the extent 
that it creates rights for Russia to invoke, which would be contrary to the non -retroactivity rule in 
Article 28 of the Vienna Convention. Russia's interpretation would "contradict the rather el ementary 
notion that, when a new Member accedes, the WTO agreements – including both the rights and 
obligations therein - enter into force for that Member ".472 
7.290.   There are various reasons why we cannot accept Russia's argument on this point.  
7.291.   The first of the se relates to the wording of the provision, which uses the indefinite article " a 
Member" rather than the definite " the Member [imposing the measures]". In our view, this indicates 
that the provision is binding on all WTO Members.  
7.292.   The second reason why we cannot agree with Russia's argument is that 
Russia's  understanding would result in an asymmetry between the relevant rights and the relevant 
obligations contained in the Anti-Dumping  Agreement. We consider that the provisions of Article  18.3 
 
469 Russia's second written submission para.  737 (quoting Appellate Body Report, Brazil – Desiccated 
Coconut , DSR 1997:I, p.  18). 
470 In this regard we note that in US – Shrimp (Viet Nam),  the measures challenged post -dated the 
entry into force of the WTO Agreement for Viet Nam.  
471 Russia's second written submission, para.  738. 
472 European Union's second written submission, para. 64 (emphasis original). The European Union adds 
that s everal provisions of the covered agree ments confirm this. See, for example, Article XII :1 of the 
WTO Agreement ( "[s]uch accession shall apply to this Agreement and the Multilateral Trade Agreements 
annexed thereto "); Article 15.2 of the TBT Agreement ( "[e]ach Member shall, promptly after the d ate on which 
the WTO Agreement enters into force for it "); Article XXXIII of the GATT 1994 ( "may accede to this 
Agreement "). WT/DS494/R  
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  of the Anti -Dumping Agreement apply equally to all Members of the W TO from the date of their 
accession.  
7.293.   Thus, for the reasons set out above, we are not convinced by Russia's arguments concerning 
the proper interpretation of  Article  18.3 of the Anti -Dumping Agreement. In our view,  Article  18.3 
precludes Russia from challe nging aspects of investigations or reviews which were initiated prior to 
its WTO accession. In our examination of Russia's individual claims, we may therefore have to decide, 
before addressing the substance of those  claims, if the challenged determinations  are shielded from 
the operation of  the Anti-Dumping Agreement  by virtue of  Article  18.3.  
7.294.   Having considered the preliminary objection made by the European Union, we now turn to 
the "as applied" claims  made by Russia. We start with claims  regarding the pro duct scope of the 
measures.  
Claims with respect to the product scope of the measures   
Introduction  
7.295.   The Russian Federation makes a series of claims  (claims  #1 to #4), which it describes as 
"claims  with respect to the scope of the applicable measures".473 Although these four claims  relate 
to different aspects of the third expiry review, we understand that Russia has decided to group them 
together because they are all connected, in one way or another, to the question of the product 
definition an d in particular to the fact that, allegedly, no anti -dumping investigation was ever 
conducted, and no dumping and injury determinations were ever made  in relation to  imports of two 
types of ammonium nitrate: stabilized AN and Industrial Grade Ammonium Nitr ate (IGAN).474  
7.296.   While claims  #1 (whether the European Union extended the anti -dumping measures to 
stabili zed AN and IGAN without conducting an original investigation) and #2 (whether the 
European  Union initiated a review on the basis of a petition which was  not duly substantiated) deal 
primarily – but not exclusively – with issues related to the product scope of the expiry review, we 
note that claims  #3 and #4 concern respectively:  
a. Whether the European Union erred by failing to conduct a separate expiry rev iew for 
imports  of stabili zed AN from the Kirovo plant ( claim #3);  
b. Whether the European Union erred by incorrectly defining the domestic industry and by 
making a likelihood of recurrence of injury determination based on incomplete data 
(claim  #4).  
7.297.   We have therefore decided to consider these claims  as part of our analysis of claims  relating  
to the European Union's determination of the likelihood of recurrence of dumping.  
7.298.   We thus examine claims  #1 and #2 in  turn below.  
Whether the European  Union exte nded the anti -dumping measures and levied 
anti-dumping duties on imports of stabili zed AN and IGAN although no investigation was 
ever conducted and no dumping and material injury determinations were ever made 
(claim  #1) 
7.299.   In its first claim, Russia  alleges t hat no anti -dumping investigation was ever conducted, and 
no dumping and injury determinations were ever made  in relation to  imports of stabilized AN and 
IGAN.475 Russia argues in particular that:  
[B]oth stabilized AN and IGAN were not products under consideration in the original 
investigation and these goods are different from FGAN.476  
 
473 Russia's first written submission, section 9.3.1.  
474 Russia's first written submission, para.  542. 
475 Russia's first written submis sion, paras.  532-552. 
476 Russia's first written submission, para.  537. WT/DS494/R  
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  7.300.   Russia submits  that stabili zed AN was included in the product scope for the first time in the 
proceedings leading up to Regulation  945/2005, while IGAN appeared for the  first time in 
Regulation  999/2014.  
7.301.   As a consequence, Russia submits that  the imposition and application of the anti -dumping 
duties on imports of stabili zed AN and IGAN from the Russian Federation are inconsistent with477:  
i. Articles  1 and 18.1 of the Anti -Dumping Agreement because the measures are applied 
in the absence of an original investigation, dumping, injury and causal link 
determinations  in relation to stabili zed AN and IGAN ;  
ii. Articles  2.1, 2.2, 2.4 , and 2.6 of the Anti -Dumping Agreement and  Article  VI:1 of the 
GATT because the anti -dumping duties were imposed without determination of 
dumping in relation to stabili zed AN and IGAN  in accordance with these provisions;  
iii. Articles  3.1, 3.2, 3.4 , and 3.5 of the Anti -Dumping Agreement because the 
anti-dumpi ng duties were imposed in relation to stabili zed AN and IGAN  without 
determination of injury in accordance with these provisions;  
iv. Article  4.1 of the Anti -Dumping Agreement because the measures were imposed 
without a proper determination of the domestic in dustry ;  
v. Article  9.1 of the Anti -Dumping Agreement because the EU authorities did not fulfil the 
requirements for the imposition of these duties, and accordingly, were not entitled to 
take decision about their imposition;  
vi. Article  9.3 of the Anti -Dumping A greement and  Article  VI:2 of the GATT because 
without a positive dumping margin determination, the duties automatically "exceed 
the margin of dumping" ; and  
vii. Articles  I, II:1(a) and II:1(b) GATT because the imposition of these additional duties 
exceeds the bound tariff rate . 478 
7.302.   The European  Union responds that the provisions of the Anti -Dumping  Agreement and of the 
GATT 1994 cited by Russia do not apply to the product scope of the AN measures at issue, because 
the scope of the measure was determined before R ussia's  accession and was not revisited since 
then.479 Additionally, the European  Union argues that there was no re -examination, new 
determination, or modification of product scope in the expiry review leading up to 
Regulation  999/2014 (which is before the Panel), and thus the issue of product scope is an aspect 
governed solely by a pre -WTO determination, which is outsi de the scope of the post -WTO review, 
and therefore, under  Article  18.3 of the Anti -Dumping Agreement, not subject to any of the 
disciplines of the Anti -Dumping Agreement.480 
7.303.   In our consideration of Russia's claim, we will therefore consider in turn:  
i. Whethe r the issues raised by Russia in relation to the product scope are, as argued by 
the European Union, governed solely by a pre -WTO determinations;  
ii. If it is indeed the case, we will examine whether the European Union's reliance on  
Article  18.3 means that cl aim #1 must be rejected because the relevant provisions of 
the Anti -Dumping Agreement and the GATT 1994 do not apply .  
 
477 Russia's first written submission, section 9.3.1.1.  
478 Russia's first written submission, para. 571.  
479 European Union's first written submission, para.  130. 
480 European Union's first wri tten submission, para.  158 (quoting Panel Report, US – DRAMS , 
para. 6.17).  WT/DS494/R  
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Evolution of the product under consideration since the original investigation  
a. The product scope of the original measures  
7.304.   The parties agree that the  product scope of the original EU anti -dumping measure on AN  was 
set by Regulation  2022/95 as "ammonium nitrate originating in Russia and falling within CN 
codes  3102 30 90 and 3102 40 90."481 Later, Regulations 663/98 and 658/2002 (the "2002 Review") 
stated that they applied to the "same product" as the product concerned by the original investigation:  
i.e. ammonium nitrate (AN or  product under consideration), a solid nitrogen fertiliser  
commo nly used in agriculture. It is manufactured from  ammonia and nitric acid and the 
nitrogen content  exceeds 28% by weight in prilled or granular form .482 
b. The incorporation  of stabili zed AN in  the scope of the measures  
7.305.   Regulation  658/2002  was amended by a partial interim review  which led to 
Regulation  945/2005 .483 The partial interim review covered  "new product types" that ha d "essentially 
the same basic physical and chemical characteristics as the product concerned and were sold through 
the same channel of sales to the same end -users for the same purposes", but were  classified in 
additional  CN codes.484 According to the Europea n Union, the only new element in 
Regulation  945/2005 was that these new product types "simply … contained additional primary 
nutrients, P and/or K"485. These new product types are known as " stabilised AN ". In addition,  
Regulation  945/2005 stated that the ne w product types were considered to be the product concerned 
only "in relation to their content of AN  – as long as this exceeds 80% by weight – together with 
marginal substances and nutrients".486  
7.306.   In the subsequent review that led to Regulation  661/2008  ("the 2008 review"), the product 
concerned is defined as being " the same as the product defined in Regulation  (EC) No 945/2005".487  
c. The exclusion of imports of stabili zed AN from Kirovo following the judgment of 
the Court of First Instance in Case T  348/05  
7.307.   A Russian exporting producer, JSC Kirovo -Chepetsky Khimichesky Kombinat (Kirovo) 
challenged the 2005 extension of the anti -dumping measure to imports of stabilized AN before the 
EU Court of First Instance in Case T  348/05. As a result of this judgement, Regulation  945/2005 was 
"annulled … insofar as Kirovo was concerned".488  
7.308.   According to Russia:  
The EU Court of First Instance ruled in particular that the EU never made a dumping 
and injury determination for Stabilized AN which is not "like" to FGAN and therefore the 
 
481 European Union's first written submission, para.  131; Russia's first written submission, para.  532. 
We note that Regulation  2022/95 does not distinguish between FGAN and IGAN but refers to the use of the 
product under consideration as a "fertilizer". (Regulation  2022/95, (Exhibit  RUS-68), recital  13). 
482 Regulation  663/98, (Exhibit  RUS-146), recital  9; Regulation  658/2002, (Exhibit  RUS-70), recitals  13 
and 14.  
483 Regulation  945/2005,  (Exhibit  RUS-72). 
484 Regulation  945/2005, (Exhibit  RUS-72), recital  7. 
485 European Union's first written submission, para.  133. 
486 European Union's first written submission, para.  134 (quoting Regulation  945/2005, 
(Exhibit  RUS-72), recital  35) (emphasis adde d). See also recital  38 of Regulation  2018/1722, (Exhibit  RUS-96), 
which explains the change introduced in 2005 as follows: "[o]riginally, the product concerned was defined as 
ammonium nitrate but was subsequently re -defined to solid fertilizers with speci fied ammonium nitrate 
content. This was the consequence of the product scope clarification in 2005 which aimed to cover also 
ammonium nitrate to which were added phosphorus and/or potassium nutrients (so -called 'dirty' or 'stabilized' 
ammonium nitrate, her einafter referred to as 'dirty AN'), since it was found out that these mixtures had 
essentially the same basic physical and chemical characteristics and the same agronomic properties." 
(fn omitted)  
487 Regulation  661/2008, (Exhibit  RUS-15), recital  27; see a lso ibid. Articles  1 and 2.  
488 Russia's first written submission, para.  491. European Union's first written submission, para.  184. 
Imports of ammonium nitrate from Kirovo falling under CN codes 3102 30 90 and 3102 40 90 were still 
covered by the anti -dumpin g measures.  WT/DS494/R  
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  imposition of the antidumping measure on imports  of Stabilized AN by Kirovo is illegal.  
As the benefits of a court judgment in the EU legal system extend sol ely to the applicant , 
imports into the EU of Stabilized AN manufactured by other Russian producers remained 
subject to the anti -dumping measure.489 
7.309.   Regulation  661/2008 was amended in 2009490 in order to implement the judgment of the 
Court of First Instance.  As a consequence of this amendment, all imports of stabili zed AN from Russia 
remained within the product scope of the measures, except for stabili zed AN exported by Kirovo. 
Other types of AN exported by Kirovo also remained within the product sco pe.491  
d. The alleged inclusion of IGAN in Regulation  999/2014  
7.310.   Regulation  999/2014, which was adopted pursuant to the third expiry review,  initiated on 
the basis of a request lodged on 28 March 2013492, states that "the product concerned by this review 
is the same as the product defined in Regulation  661/2008".493 The product under consideration was 
thus defined as :  
[S]olid fertilisers with an ammonium nitrate content exceeding 80% by weight, 
currently falling within CN codes 3102 30 90, 3102 40 90, ex 3102 29 00, ex 3102 60 
00, ex 3102 90 00, ex 3105 10 00, ex 3105 20 10, ex 3105 51 00, ex 3105 59 00 and 
ex 3105 90 20 and originating in Russia.494  
7.311.   Regulation  999/2014 also state s that:  
It should be noted that the CN codes 3102 30 90 and 3102 40 90 (respectively, 
"ammonium nitrate other than in aqueous solutions " and "mixtures of ammonium 
nitrate with calcium carbonate or other inorganic non -fertilising substances, with a 
nitrogen content  exceeding 28% by weight ") can include AN used for industrial purposes  
(such as the production of explosives) [IGAN] as well as AN used for agricultural 
purposes . Both types have the same technical and chemical characteristics, can easily 
be interchangeabl e and are considered as the product concerned.495 
7.312.   Based on our examination of the history of the anti -dumping measures on AN from Russia, 
we note that the definition of the product concerned was significantly amended in 2005 in order to 
include "new product  types". The definition was again altered in 2009, following the judgement of 
the Court of First Instance in order to exclude imports of stabili zed AN from Kirovo from the product 
under consideration. These events affecting the product scope thus took plac e before  
Russia's  accession to the WTO.  
7.313.   The alleged inclusion of IGAN in the product scope poses a different issue, since 
Regulation  999/2014 was the result of a review initiated after Russia's accession to the  WTO. For  the 
following reasons, however, we are not convinced by Russia's demonstration that the 
 
489 Russia's first written submission, para.  491. 
490 By Regulation  989/2009, ( Exhibit  RUS-116).  
491 We note Russia's argument that the European  Commission's refusal to exclude stabilized AN from the 
scope of the measures in the context of the third expiry review amounts to a "product scope determination". 
(Russia's second written submission, para. 744).  We disagree with Russia that the events reflected at 
recitals  20 to 22 of Regulation 999/2014 amount to a re -examination of the product scope in the context of the 
third expiry review. As explained in these recitals, the representatives of Russian produce rs/exporters 
requested the exclusion of stabilized AN from the product scope of the review because the Court of First 
Instance of the European Union had annulled the Regulation expending the product scope to stabilized AN. In 
its response, the European  Commission  merely recalled that the judgement of the Court of First Instance in 
case T  348/05 "only … concerned one Russia n exporting producer" (Kirovo) and that "[f]or all the other 
Russian producers, the applicable product scope remains  the one specified in  Regulation (EC) No 945/2005".  
(Regulation  999/2014, (Exhibit  RUS-66). (emphasis added))  
492 Request for an Anti -Dumping Sunset Review (Article  11(2) of the Basic EC Anti -Dumping Regulation), 
Imports of Ammonium Nitrate (AN) Originating in Russia, (Exhibit  EU-11). 
493 Regulation  999/2014, (Exhibit  RUS-66), recital  44. 
494 Regulation  999/2014, (Exhibit  RUS-66), recital  44. 
495 Regulation  999/2014, (Exhibit  RUS-66), recital  46. (emphasis added)  WT/DS494/R  
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  European  Union extended the scope of the product under investigation to IGAN in the context of the 
third expiry review.  
7.314.   In support of its claim  that Regulation  999/2014 extended the product scope to incl ude 
IGAN, Russia relies on the following statement contained in the regulation:  
It should be noted that the CN codes 3102 30 90 and 3102 40 90 … can include AN used 
for industrial purposes … as well as AN used for agricultural purposes.496 
7.315.   Russia argues th at this statement amounts to an extension of the scope of the product under 
investigation because IGAN was not included in the scope of the product concerned in the original 
investigation.497 Russia finds support for its claim  that the original investigation was limited to 
agricultural grade ammonium nitrate in the following elements:  
a. The definition of the product under consideration in Regulation  658/2002, and in particular 
the reference to "ammonium nitrate commonly used in agriculture."498 
b. The fact that the original complainant was EFMA, a "European Fertilizer 
Manufacturer's  Association representing the companies producing agricultural ammonium 
nitrate".499 
c. The fact that Regulation  658/2002 specifies "farmers as the 'users of the product 
concerne d'" and that Regulation  999/2014 analysed the Union interest with respect to 
farmers only. 500 
7.316.   The European  Union considers that the statement  contained in Regulation  999/2014 does 
not change or expand the definition of the product concerned. Instead, it "s imply clarifies that the 
product concerned can be used for in dustrial as well as agricultural purposes, and that in either case 
it is still the product concerned."501  
7.317.   In our view, the statement in recital 46 of Regulation  999/2014 that "CN codes 3102 30 90  
and 3102 40 90 … can include AN used for industrial purposes"502 merely describes the content of 
the CN codes. Further, we find that the arguments put forward by Russia do not support its claim: 
the facts that the original complainant was an association pr oducing AN for agricultural use, or that 
farmers are the main users of the product, do not demonstrate that the investigating authority 
intended to limit the product under consideration to FGAN. As stated by the representatives of 
Russian exporters themsel ves, the " [[***]]"503: had it been the case, it would have been an 
indication that the authority intended to limit the product under consideration to certain sub -types 
of AN within the customs codes.  
7.318.   Like the European Union, we also note that, in March 201 4, during the course of the third 
expiry review (i.e. before Regulation  999/2014 was published), the representatives of Russian 
exporters stated that the product concerned covered " [[***]]."504 This indicates that, for the 
exporters of the product concerned , the product scope of the investigation already extended to 
ammonium nitrate, irrespective of its use. Accordingly, we conclude that there has been no 
re-examination, and consequently no extension , of the product scope in the 2014, "post-WTO" third 
expiry  review.  
7.319.   We recall our conclusion above505 that, by virtue of Article  18.3 of the 
Anti-Dumping  Agreement, Russia is precluded from challenging a non-re-examined aspect of a 
determination made in investigations initiated before Russia's accession to th e WTO. In the present 
 
496 Regulation  999/2014, (Exhibit  RUS-66), recital  46. 
497 Russia's first wr itten submission, paras.  537 and 546.  
498 Russia's first written submission, para.  546. 
499 Russia's first written submission, para.  547. (fn omitted)  
500 Russia's first written submission, para.  547 and fn 533.  
501 European Union's first written submission, para.  168. 
502 Regulation  999/2014, (Exhibit  RUS-66), recital  46. 
503 RFPA submission (4 March 2014),  (Exhibit  RUS-82 (BCI)), p.  2. 
504 RFPA submission (4 March 2014), ( Exhibit  RUS-82 (BCI)), p.  3. 
505 See para.  7.293  above .  WT/DS494/R  
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  dispute, we are of the view that the product scope determination is a feature of the "original 
investigation" (a pre -WTO measure) which, if not subject to consideration on review by the 
investigating authority (post -WTO), is not subje ct to the Anti-Dumping  Agreement . This is the case 
for the alleged product scope expansion in Regulation  945/2005 : even if the European  Union did in 
fact expand the product scope to include stabilized AN in that review, that determination cannot 
retroactiv ely become subject to the provisions of the Anti-Dumping  Agreement.  
7.320.   We thus agree with the European  Union that the expansion of the product scope is covered 
by Article  18.3, which means that claim #1 must be rejected because the relevant provisions of the  
Anti-Dumping Agreement and the GATT 1994 do not apply . Further, we concluded above that there 
has been no re -examination, and consequently no expansion, of the product scope in the 2014, 
post-WTO review  of the anti -dumping measures on ammonium nitrate .  
7.321.   For these reasons, we reject Russia's claim  #1 that the European  Union "violated Articles 1 
and 18.1 of the Anti -Dumping Agreement because it imposed the anti -dumping measures on import 
of IGAN and Stabilized AN for which no anti -dumping investigation was e ver conducted and no 
dumping and injury determinations were ever made"506. As the part of  Russia's claim  #1 that is 
raised on the basis of  Articles  2, 3, 4, and 9 of the Anti -Dumping  Agreement and  Article s I, II and 
VI of the GATT 1994 is  consequential to a finding that the European  Union imposed anti-dumping 
duties on stabilized AN and IGAN in the absence of dumping determinations for these products , we 
also reject these claims.  
Whether the European  Union violated  Article  11.3 by initiating the third expiry 
review on the basis of a petition which was not duly substantiated ( claim  #2) 
Introduction  
7.322.   Russia claims  that the initiation of the expiry review was inconsistent with  Article  11.3 of the 
Anti-Dumping Agreement on four independent grounds:  
a. First, the expiry review request covered imports of stabilized AN and IGAN for which no 
anti-dumping investigation was ever conducted, and no dumping and injury 
determinations were ever made in accordance with the Anti -Dumping Agreemen t.507 
b. Second, the request was based on import data which did not exclude imports of 
stabili zed AN from the Kirovo plant (a producer whose production of stabilized AN was 
normally excluded from the product scope). For Russia, the inclusion of imports of 
stabilized AN from Kirovo "infected" the data on the volume of imports from Russia.508 
Thus, the request submitted by Fertilizers Europe was supported by inaccurate, insufficient 
evidence .509 
c. Third, the dumping margin calculations provided by Fertilizers Europe in support of its 
allegation of likelihood of continuation of dumping were based on a comparison between 
the cost of production outside the country of origin and export prices to third countries .510 
d. Fourth, the request was based on an asymmetrical product c overage: "on the one hand, 
it relied on data about the state of the domestic industry manufacturing FGAN, and, on 
the other hand, it relied on data about the volume of Russian imports and dumping margin 
calculations with regard to FGAN, IGAN and Stabilised  AN".511 Thus, the evidence provided 
by Fertilizers Europe to support the initiation of the expiry review was not even -handed, 
accurate and sufficient for the initiation of the review, and thus, the request was not duly 
substantiated.512 
 
506 Russia's first written submission, para. 552.  
507 Russia's f irst written submission, para.  590; response to Panel question No. 34, para.  175. 
508 Russia's first written submission, para.  593. 
509 Russia's first written submission, para.  593; response to Panel question No. 34, para.  176. 
510 Russia's first written submiss ion, paras.  599-605; response to Panel question No. 34, para.  177. 
511 Russia's first written submission, paras.  606-609; response to Panel question No. 34, para.  178. 
512 Russia's first written submission, para.  608. WT/DS494/R  
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  7.323.   The European  Union s ubmits that Russia's claim  #2 should be rejected as far as it relates to 
a product scope which was determined prior to Russia's accession to the WTO (for the same reasons 
it advanced to reject Russia' s claim  #1).513 Further, the  European  Union rejects the arguments put 
forward by Russia  relating to the content of the petitioner's request , because it considers that Russia 
conflates the requirements for the initiation of original investigations with the requirements for the 
initiati on of expiry reviews. According to the European Union, these two types of investigations differ:  
a. While in an anti -dumping investigation, the authority must determine whether dumping 
existed during the period of investigation, the purpose of an expiry revie w is to determine 
if dumping would be likely to recur or continue if the measures were terminated .  
b. The analysis to be conducted in an expiry review is, by nature, prospective and the type 
of evidence required to demonstrate likelihood of continuation or r ecurrence of dumping 
and injury varies with the facts and circumstances of the case .514  
c. The evidentiary standard for the initiation of an expiry review differs from the standard for 
the initiation of an investigation515: the obligation, contained in  Article  11.3 of the 
Anti-Dumping Agreement that the request should be duly substantiated, is less demanding 
that the obligation in  Article  5.3 that the petition contain "sufficient evidence to justify the 
initiation of an investigation".516 While the petitioner re questing the initiation of an 
investigation must provide evidence of dumping, injury and a causal link, the petitioner 
requesting an expiry review must "only" explain why the expiry of the duty would be likely 
to lead to continuation or recurrence of dumpi ng and injury.517  
7.324.   For the European Union, Russia also conflates what is required from an investigating 
authority in order to make determinations and what is required from a petitioner requesting a review. 
Contrary to the authority conducting the review, th e petitioner requesting the initiation of an expiry 
review does not have to positively establish the likelihood of continuation or recurrence of dumping 
and injury , according to the European Union .518 In the present case, the European  Union asserts 
that the petitioners simply claimed that the measure that was in force , should be extended in time.519 
The applicable legal standard under  Article  11.3 of the 
Anti-Dumping  Agreement  
7.325.   The first issue before the Panel concerns the applicable legal standard for a request for an 
expiry review to be "duly substantiated" as stated in  Article  11.3 of the Anti -Dumping Agreement.  
7.326.   In that regard, Russia  refers520 to the provisions of  Article  12.3 of the 
Anti-Dumping  Agreement, which states that the provisions of  Article  12 (which deals inter alia  with 
notices of initiation of anti -dumping investigations) "shall apply mutatis mutandis  to the initiation 
and completion of reviews pursuant to  Article  11". 
7.327.   Russia refers in particular to  Article  12.1, which provides th at:  
When the authorities are satisfied that there is sufficient evidence to justify the initiation 
of an anti -dumping investigation pursuant to  Article  5 … public notice shall be given.  
7.328.   For Russia, this means that the initiation of an expiry review will be consistent with  
Article  11.3 if it is based on "sufficient evidence" in relation to the allegation of likelihood of 
recurrence of dumping and injury.521  
 
513 European Union's first written submissio n, para.  130. 
514 European Union's first written submission, paras.  216 and 218.  
515 European Union's first written submission, para.  219. 
516 European Union's first written submission, paras.  220-221. 
517 European Union's first written submission, para.  223. 
518 European Union's first written submission, para.  228. 
519 European Union's comments on Russia's response to Panel question No. 89.  
520 Russia's first written submission, para s. 576-577. 
521 Russia's first written submission, para.  580. WT/DS494/R  
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  7.329.   In addition, Russia considers that  Article  5.3 of the Anti -Dumping Agreement provides proper 
context  for the interpretation of the terms "sufficient evidence" and "duly substantiated".  
Article  5.3 states:  
The authorities shall examine the accuracy and adequacy of the evidence provided in 
the application to determine whether there is sufficient evidence to justify the initiation 
of an investigation.  
7.330.   Russia explains that this provision has been interpreted as requesting panels to examine 
whether an objective and unbiased investigating authority could properly have determined that there 
was sufficient evid ence of dumping, injury and causal link to initiate an investigation.522  
7.331.   The European  Union agrees that requests for the initiation of an expiry review must provide 
evidence that the expiry of the duty would be likely to lead to continuation or recurrence of dumping 
and injury. The European  Union also agrees that the investigating authority's dec ision to initiate the 
review must be unbiased and objective.523 However, the European  Union disagrees that the legal 
standard for initiating original investigations can be imported in the context of expiry review.524 
The European  Union considers that:  
a. The e videntiary standard for initiating an expiry review under  Article  11.3 must be less 
demanding than the standard for initiating  an original investigation under  Article  5.3. This 
is because "in an expiry review, an anti -dumping measure is already in place, a nd what 
must be 'duly substantiated' is, at best, whether dumping and injury are likely to continue 
or recur." 525 
b. This evidentiary standard, for the European  Union is "sufficient evidence  … to justify 
initiation", not "sufficient evidence to support a prel iminary or final determination".526 
Based on the dictionary definition of the terms "duly" and "substantiate", the 
European  Union argues that  Article  11.3 requires "merely the provision of evidence in 
support of a finding of likelihood or recurrence or cont inuation of dumping and injury."527 
Accordingly, the European  Union argues that it is the process of "reconsideration and 
examination", which can only take place during the expiry review proceedings (i.e. after 
initiation) which enables the authority to go beyond "plausibility" and make a reasoned 
conclusion of "probability".528 
7.332.   In US – Carbon Steel  the Appellate Body noted that  Article  21.3 of the SCM Agreement (the 
provision corresponding to  Article  11.3 of the Anti -Dumping Agreement) does not contain a 
cross-reference to  Article  11 of the SCM Agreement (which governs the initiation of original 
countervailing duty investigations).529 We note that the same is true for the 
Anti-Dumping  Agreement:  Article  11.3 does not cross -reference  Article  5, which is thus on ly 
applicable to the initiation of original investigations. As the panel in US – Corrosion -Resistant Steel 
Sunset Review  explained:  
[C]ross-references [in the Anti -Dumping Agreement ] indicate that, when the drafters 
intended to make a particular provision also applicable in a different context, they did 
so explicitly. Therefore, their failure to include a cross -reference in the text of  
Article  11.3, or, for that matter, in any other paragraph of  Article  11, to  Article  5.6 (or 
vice versa ) demonstra tes that they did not intend to make the evidentiary standards of  
Article  5.6 applicable to sunset reviews.530 
 
522 Russia's first written sub mission, para.  584. 
523 European Union's first written submission, para.  213. 
524 European Union's first written submission, para.  215. 
525 European Union's first written submission, para.  220; second written submission, para.  85; and 
comments on Russia's respon se to Panel question No. 91.  
526 European Union's response to Panel question No. 88, para. 51.  
527 European Union's first written submission, para.  221. See also European Union's response to Panel 
question No. 88, para. 5 5. 
528 European Union's response to Panel question No. 88, para. 52.  
529 Appellate Body Report, US – Carbon Steel , paras.  108-109. 
530 Panel Report, US – Corrosion -Resistant Steel Sunset Review , para.  7.27. WT/DS494/R  
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  7.333.   We agree with this line of reasoning. The absence of any cross -reference in  Article  11.3 to  
Article  5.3 must be understood to imply that the stand ard for the initiation of an expiry review is 
different from the standard required for the initiation of an original investigation, and that the 
standard in  Article  5.3 of the Anti -Dumping Agreement does not apply to an expiry review. We also 
agree that it  follows from a plain reading of the text that the appropriate standard against which to 
determine whether an expiry review has been properly initiated under  Article  11.3 of the 
Anti-Dumping Agreement is whether the complainant has provided sufficient evid ence that dumping 
and injury are likely to recur in the absence of anti -dumping measures to warrant initiation. The 
request is not required to demonstrate, as a certainty, that if the measures were to lapse, dumping 
and injury would be likely to recur or c ontinue.  
7.334.   With this standard in mind, we now turn to address the merits of the four arguments made 
by Russia in support of its claim.  
Whether the E uropean Union wrongfully accepted a request for the initiation of 
an expiry review aimed at extending the sc ope of the products covered by the 
anti-dumping measures to stabilized AN and IGAN despite never conducting an original 
investigation or making prior dumping or injury determinations in relation to these two 
products  
7.335.   First, Russia asserts that the petition contained a request to extend the product scope of the 
expiry review to products not falling within the product scope of the original investigation.531 Russia 
clarifies that it does not argue that the petitioner actually requested the extension of the product 
scope of the measure in the expiry review request532, but, rather, that the European  Union 
"wrongfully accepted a request for review that was aimed at extending anti -dumping measures  on 
stabilized AN and IGAN ."533 
7.336.   We note however that Russia has not provided any evidence that the petition sought an 
extension of the scope of the products covered by the measure to include stabilized AN and IGAN, 
nor that the European  Commission  accepted such a request for extension.534 In fact, the relevant 
sections of the expiry review request  make clear that Fertilizers Europe sought  an expiry review of 
the measure with respect to the same product scope  that was set previously  in the 2005 review.535 
7.337.   Second, Russia argues that the Europ ean Commission  decided to initiate the third expiry 
review on the basis of product types (stabili zed AN and IGAN) which were never the subject of 
dumping and injury determinations in prior proceedings.  
7.338.   However,  as already noted  in Section 7.7.2.2.1 (d) of this Report , "the product concerned 
by [the third expiry]  review is the same as the product defined in Regulation  (EC) No 661/2008".536 
We have also found above that even if the European  Union did in fact expand the product scope to 
include stabilized AN in a past review , that determination cannot retroactively become subject to the 
provisions of the Anti -Dumping  Agreement . Accordingly, the European  Commission 's decision to 
initiate the third ex piry review on the basis of the same product scope as the one defined before 
Russia's accession to the WTO, when the Anti -Dumping Agreement did not apply, cannot now be 
impugned under the Anti -Dumping Agreement.  
7.339.   We therefore find that Russia has failed to  demonstrate that the third expiry review was 
initiated on the basis of a request which was not duly substantiated as a result of the 
European  Commission 's reliance on the product definition used in the 2008 review.  
 
531 Russia's first written submission, paras.  590-591: "the EU accepted the expiry review request of 
Fertilizers Europe in which the industry requested to extend the anti -dumping measures on imports, inter alia , 
of stabilised AN and IGAN."  
532 Russia's response  to Panel question No. 89, para.  106. 
533 Russia's response to Panel question No. 89, para.  107. (emphasis added)  
534 In response to question 34 of the Panel, which asked Russia to point to precise elements on the 
record, Russia simply restated its argument, b ut failed to provide evidence that an extension of the product 
scope was requested.  
535 European Union's first written submission, paras.  231-232 (referring to Request for an Anti -Dumping 
Sunset Review (Article  11(2) of the Basic EC Anti -Dumping Regulation),  Imports of Ammonium Nitrate (AN) 
Originating in Russia, (Exhibit  EU-11)). 
536 Notice of initiation, (Exhibit  RUS-48), section 2; Regulation  999/2014, (Exhibit  RUS-66), recital  44.  WT/DS494/R  
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Whether the European  Union wrongfully a ccepted a request for review based 
on evidence of imports of stabilized AN from Kirovo   
7.340.   Russia alleges that the petition included data on imports of stabilized AN produced by Kirovo , 
even though stabili zed AN from the Kirovo plant was excluded from the pro duct concerned.537 Russia 
argues that the inclusion of imports from Kirovo in the review request led to a volume of imports 
which "overestimated the volume of Russian FGAN imports 4 time."538 For Russia, interested parties 
are "required to exclude non -dumped  imports from a request to initiate an expiry review. Otherwise, 
the evidence presented by an applicant would neither be accurate, nor adequate".539  
7.341.   The European  Union " agrees that those exports are not within the product concerned, and 
that they are there fore not directly relevant evidence in the sense that they do not form part of the 
Russian exports to the EU of the product concerned ".540 However, for the European Union, Russia 
has not demonstrated that , as a matter of fact, the import statistics used in the request for an expiry 
review included imports from the Kirovo plant.541 In addition, the European  Union submits that a 
petitioner cannot be requested to provide information which  is not publicly available: in the present 
case, the European  Union states that the publicly available data on imports of AN into  the 
European  Union does not distinguish imports by exporter/company.542 More generally, the 
European  Union considers that:  
To require expiry review requests to be flawless (e.g. free  of any surplus material, free 
of any deficiencies, providing complete evidence necessary to demonstrate the 
likelihood of recurrence) would be inconsistent with  Article  11.3, because it would 
impose on initiation requests a standard that, at best, applies  to the authority 's final 
determination.543 
7.342.   We agree with Russia that exports of stabili zed AN from Kirovo are not within the product 
concerned, and as such , are not directly relevant as evidence in the third expiry review. We are also 
concerned that, in vi ew of the import volumes cited by Russia, the inclusion of imports of stabili zed 
AN from Kirovo may have artificially increased the volume of imports estimated by the complainant 
in its request for review. We note however that the notice of initiation does  not refer to the volume 
of imports prior to the period of review as a basis for initiation of the expiry review. The notice of 
initiation merely refers to the likely increase in imports of the product concerned should the 
measures lapse.544 Given that stabilized AN from Kirovo did not fall within the product concerned, 
the statement in the notice of initiation suggests that the European  Commission  did not, in fact, rely 
upon the data on exports of stabili zed AN from Kirovo included in the petition. Indeed, the 
European  Union states that t he European  Commission  "did not rely on this data as such to initiate 
the expiry review  and that, u nlike Fertilizers Europe, the Commission was in a position to separate 
out any data on Stabilised AN, because it has access t o more detailed customs information ."545 
Russia does not point to any evidence on the record showing that the European  Commission  did not 
separate imports of stabili zed AN from Kirovo from the other imports, and that it actually relied on 
the volume of impo rts stated in the petition.  
7.343.   We therefore find that Russia has failed to demonstrate that the third expiry review was 
initiated on the basis of a request which was not duly substantiated as a result of the alleged inclusion 
of data concerning Kirovo in the  request .  
 
537 Case T 348/05  (10 September  2008) , (Exhibit  RUS-73), paras.  9-13 and 23 -24; Case T 348/05  
(9 July 2019) , (Exhibit  RUS-74). 
538 Russia's first written submission, para.  607; second written submission, para.  831. We understand 
Russia to mean that the actual volume of Russian FGAN imports was only one fourth of the volume reflected i n 
the petition.  
539 Russia's second written submission, para.  832. 
540 European Union's response to Panel question No. 90, para.  60. 
541 European Union's first written submission, para.  235. 
542 European Union's first written submission, para.  236. See also Europ ean Union's response to Panel 
question No. 90, paras.  64-67. 
543 European Union's response to Panel question No. 90, para.  62. 
544 Notice of initiation, ( Exhibit  RUS-48), section 4.2.  
545 European Union's response to Panel question No. 90, para.  68. WT/DS494/R  
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Whether the European  Union erred when it accepted the dumping margin 
calculations provided by the domestic industry in support of its allegation of likelihood of 
continuation of dumping  
7.344.   Russia asserts that the request for the initiation of the expiry review was not duly 
substantiated because it was based on allegations of likelihood of continuation of dumping, which 
relied on a margin of dumping that was determined in a manner inconsisten t with  Article  2 of the 
Anti-Dumping Agreement. Russia maintains in particular that the alleged margin of dumping was 
based on (i) a constructed normal value calculated using a cost for gas which was not the cost of 
production "in the country of origin", a nd (ii) a comparison of the constructed normal value  with the 
export price of the Russian AN when sold for export to Brazil, not to the E uropean Union.546 According 
to Russia, the European  Commission  decided to initiate the expiry review on the basis of thi s 
information although "a n unbiased and objective investigating authority, evaluating this evidence 
would have never determined that the expiry of the duty would be likely to lead to continuation or 
recurrence of dumping ".547 
7.345.   We note that the notice of init iation of the third expiry review refers to the margin of dumping 
calculated by the applicant as supporting  its allegation that dumping was likely to recur should the 
measures lapse. The notice of initiation states:  
[T]he allegation of likelihood of contin uation of dumping is based on a comparison of a 
constructed normal value, based on manufacturing costs in Russia, with the exception 
of the input price for natural gas, which is based on the gas price for delivery at 
Waidhaus (DE), adjusted for transport c osts., and the selling, general and 
administrative costs (SG&A) and normal profit, which were based on data from the 
United States of America, with the export price (at ex -works level) of the product under 
review when sold for export to the Union.  
In addit ion, the constructed normal value was also compared with the export price (at 
ex-works level) of the product under review when sold for export to Brazil, the main 
export market for fertilisers from Russia  … 
On the basis of the above comparisons, which show  dumping, the applicant alleges that 
there is a likelihood of continuation of dumping from Russia. Calculations are based on 
the export price net of the anti -dumping duty. The Commission, when verifying the 
calculations, has taken due account of the existe nce of a price undertaking. 548 
7.346.   In view of the information provided by the notice of initiation, we therefore agree with Russia 
that the European  Commission  accepted as evidence of "dumping" and "likelihood of recurrence of 
dumping" the calculation made by the petitioners. This calculation was based on evidence which is 
not contested by Russia  in the present dispute : the manufacturing costs for the like product in 
Russia, estimates of SG&A and profit, as well as the ex -works export price of ammonium nitrate 
when sold for export to the European Union. In addition, c ontrary to what Russia argues549, the 
normal value was compared with the export price of the Russian AN when sold for export to the 
European Union (in addition to the export price to Brazil).   
7.347.   The only element of the constructed normal value which is contested by Russia is the 
adjustment made for the cost of gas, because " Article 2.2 of the Anti -Dumping Agreement 
mandatorily requires the constructed  normal value to be based on "the cost of production in the 
country of origin" '.550 The notice of initiation indicates that the European  Commission  "verified the 
calculations" and "took account" of the existence of a price undertaking. It does not indicate whether 
in its "verification of the calculations", the European  Commission  ensured that the cost of production 
used in the construction of the normal value was the cost of production in the country of origin.  
7.348.   As explained above, the correct legal standard  against which the Panel should judge Russia's 
claim  is whether the petition contained sufficient evidence of a likelihood of recurrence of dumping, 
 
546 Russia's f irst written submission, paras.  600-604. 
547 Russia's first written submission, para.  599 (quoting the Notice of initiation , (Exhibit  RUS-48)). 
548 Notice of initiation, (Exhibit  RUS-48), section 4.1.  
549 Russia's first written submission, para.  601. 
550 Russia's first written submission, para.  602. WT/DS494/R  
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  should the measures lapse, for an expiry review to be initiated. We are of the view that the phrase 
"duly s ubstantiated" imposes a high evidentiary standard on petitioners and on investigating 
authorities at the initiation stage. The evidentiary standard required at the initiation stage cannot 
be the same, however, as the evidentiary standard required to make a  determination of likelihood 
of recurrence of dumping: it is only by conducting its review that an authority will be able to collect 
and verify the evidence necessary to support its determination. In contrast, a petition must only 
contain evidence necessar y to support the initiation of the review and the quality of this evidence 
will necessarily be limited by the petitioner's ability to have access to the relevant information. In 
assessing whether the petition is duly substantiated, the investigating author ity must ensure  
however  that the evidence put forward by the petitioners is consistent with the information available 
to them at the time the petition is filed: this may include assumptions or reliance on estimates and 
proxies, which would not be considere d as a reasonable basis for a final determination consistent 
with Article  11.3 of the Anti -Dumping Agreement. We also take the view that, if the authority 
chooses to rely on assumptions made by the applicant, it must explain why such assumptions 
substantia te the initiation of an expiry review. In the third expiry review on ammonium nitrate, we 
consider that the notice of initiation fell short of providing such an explanation by failing to indicate 
that the normal value constructed by the applicant and "veri fied" by the European  Commission , was 
based on the cost of production in the country of origin.   
7.349.   Accordingly, we find that the European Union breached  Article  11.3 of the 
Anti-Dumping  Agreement by failing to verify whether  the constructed normal value included  in the 
request was based on the cost of production in the country of origin , and, as a consequence, by 
failing to ensure that the review request was duly substantiated . 
Whether the E uropean Union acted contrary to  Article  11.3 of the 
Anti-Dumping  Agreement by initiating the expiry review based on a request for review 
that analysed indicators of the domestic industry manufacturing FGAN, on the one hand, 
and Russian imports of FGAN, IGAN and stabilized AN on the other hand  
7.350.   Russia  argues that the req uest to initiate an expiry review was based on data from the 
domestic industry covering only producers of FGAN, while information on imports from Russia 
covered not only FGAN, but also IGAN and stabilized AN : Russia alleges  in particular that the import 
volume used in the petition included stabilized AN from the Kirovo plant.551  
7.351.   Russia relies on a letter dated 4 March 2014552 which indicates that the risk of an 
asymmetrical product mix was raised by Russian exporters during the investigation:  
[T]he definitio n of the "like product " advanced by the applicant in the application as well 
as in the questionnaire responses of the sampled Union producers is manifestly wrong 
as it covers only fertilizer grade ammonium nitrate (FGAN) while the product concerned 
current ly covers both, FGAN and explosive grade ammonium nitrate (EGAN)  … 
[T]he list of known producers in the application and the resulting definition of the Union 
industry manifestly excludes [certain] EU EGAN producers. And since the Union industry 
indicators and consumption are calculated for the Union FGAN industry, they exclude 
by definition data relating to EU production of EGAN. 553  
7.352.   Accordingly, Russia submits that the request for initiation of the review was neither  
even-handed , accurate, nor sufficient . 
7.353.   The European  Union responds that " the expiry review request concerned the same product 
scope as the existing measure, which includes both IGAN and stabilised AN (to the extent of its 
 
551 Russia's first written submission, paras.  606 and 608.  See also Russia's second written submission, 
paras. 757 -761 and 860; r esponse to Panel q uestion No. 103, para. 165 ; question No. 95, paras. 126 -133. See 
also Russia's second written submission, para. 840; response to Panel question No. 95, paras. 135 137 . 
552 Russia's first written submission, fn 556 (referring to RFPA submission (4 March 2014), 
(Exhibit  RUS-82 (BCI)).  
553 RFPA submission (4 March 2014), (Exhibit  RUS-82 (BCI)), p.  3. WT/DS494/R  
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  AN content) ".554 Further, the European Union re fers to the text of Regulation  999/2014 which 
indicates that:  
[T]he applicant and the supporters of the request are producers of FGAN as well as of other 
products covered by this expiry review. Therefore, the request was not supported only by 
FGAN produce rs, but also by producers of other types of the product concerned …[.]555 
7.354.   For the European Union, Russia does not demonstrate that the data provided by the 
EU domestic industry in the petition covered only FGAN, nor that the data used to assess Russian 
imports included imports of stabili zed AN from Kirovo. The European Union submits that, in any 
event, "n either  Article  11.3, nor any other provision of the AD Agreement, require the  make -up of 
the product concerned and the like product to be identical in every respect. " 556 
7.355.   In view of the evidence on the record, we are not persuaded by Russia's claim  that the expiry 
review was initiated on the basis of an asymmetrical product mix. We note for example that the 
same letter of 4 March 2014 from Ru ssian exporters requested that the investigating authority ask 
the applicant to separate domestic industry data concerning FGAN and stabili zed AN:  
Thus, the sampled EU producers should re -submit their questionnaire responses 
identifying separately their p erformance for the products that are (a) like AN imported 
from Russia, and (b) like Stabilized AN imported from Russia . For the time being, the 
sampled EU producers and the applicant overall comingle the two  by alleging that 
imported Stabilized AN is like AN manufactured in the EU, but this is illegal pursuant to 
the General Court judgment which found the two to be unlike.557  
7.356.   This seems to indicate that the applicant did not distinguish between different types of AN 
in its questionnaire response. In fact, t he notice of initiation does include stabili zed AN in the scope 
of the "product under review"558 and does not indicate that the like product should be defined 
otherwise.  
7.357.   We therefore reject Russia's claim  that the European Union violated  Article  11.3 by in itiating 
the third expiry review based on a request that analysed indicators of the domestic industry 
manufacturing FGAN on the one hand and imports of FGAN, stabili zed AN and IGAN on the other 
hand.  
Conclusion on Russia's claim  #2 
7.358.   In view of the foregoing , we find that the European Union breached  Article  11.3 of the 
Anti-Dumping Agreement by failing to indicate  in the notice of initiation whether the dumping 
calculation included in the request was based on the cost of production in the country of origin . 
We reject the other arguments presented by Russia in support of claim  #2. 
Russia's claims  with respect to the establishment of the likelihood of recurrence of 
injury ( claims  #5 to #8)  
Introduction  
7.359.   Russia makes a series of claims  regarding the likelihood of recurrence of injury determination 
made by the European  Commission  in the third expiry review on ammonium nitrate.559 According to 
Russia, the analysis and the determination reached by the European  Commission  are inconsistent 
with Article  11.3 and various provisions of  Articles  3 and 4 of the Anti -Dumping Agreement.  
 
554 European Union's second written submission, para.  87. 
555 European Union's first written submission, paras.  249 and 268 (quoting  Regulation  999/2014 , 
(Exhibit  RUS-66), recital  7). 
556 European Union's first written submission, para.  251. 
557 RFPA submission (4 March 2014), ( Exhibit  RUS-82 (BCI)), p.  5. (emphasis added)  
558 Notice of initiation, (Exhibit  RUS-48), section 2.  
559 Regulation  999/2014, (Exhibit  RUS-66). WT/DS494/R  
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  7.360.   Russia's claims  #5 to #8 related to the likelihood of recurrence of injury determination are 
the following:  
a. Russia claims  that the European  Union breached  Articles  11.3, 3.1 and 3.2 of the 
Anti-Dumping Agreement by failing to perform proper undercutting calculations560 
(claim  #5);  
b. Russia claims  that the European  Union violated  Articles  11.3, 3.1, 3.4 and 4.1 of the 
Anti-Dumping Agreement, by basing its likelihood of r ecurrence of injury determination 
(i) on data relating to a non -representative sample of the domestic industry; (ii) on the 
incomplete, non -representative and erroneous data provided by the sampled 
EU companies; and (iii) by failing to examine and explain the divergent economic 
performance between the sampled and non -sampled EU domestic producers561 
(claim  #6);  
c. Russia claims  that the European  Union violated  Articles  11.3 and 3.1 of the 
Anti-Dumping  Agreement by erroneously concluding that there were no indi cations that 
the non -injurious situation of the EU industry would be sustainable562 (claim  #7);  
d. Russia claims  that the European  Union violated  Articles  11.3 and 3.1 of the 
Anti-Dumping  Agreement by not basing its likelihood of recurrence of injury determination 
on positive evidence and an objective examination of the relevant factors563 (claim  #8).  
7.361.   Before turning to the substance of these four claims, we note that the European  Union makes 
two arguments regarding:  
a. Whether we should make findings and  recommendations with regard to the likelihood of 
recurrence of injury determination made by the European Union in Regulation  999/2014, 
in view of the more recent likelihood of recurrence of injury determination in 
Regulation  1722/2018;  
b. The legal standard  applicable to the Panel's examination of Russia's claims  #5 to #8.  
7.362.   We examine these two arguments in turn.  
Whether certain claims  presented by Russia should be disregarded by the Panel 
because Regulation  1722/2018 replaced and updated Regulation  999/2014  
7.363.   The European  Union makes two arguments about the measure at issue.  
7.364.   First, the European  Union submits that Russia's claims  #5 to #8 (concerning the 
determination of the likelihood of recurrence of injury) d o not extend to Regulation  1722/2018, and 
pertain only to Regulation  999/2014.564 We understand Russia to have confirmed this to be the 
case.565  
7.365.   Second, the European Union argues that Russia's claims  concerning the determination of the 
likelihood of recurre nce of injury in Regulation  999/2014 should be disregarded because a more 
recent determination of the likelihood of recurrence of injury was made in 2018.566 The 
European  Union asks the Panel not to make recommendations with regard to Regulation  999/2014, 
because the analysis it contains has been updated and replaced by the analysis of likelihood of 
recurrence of injury contained in Regulation  1722/2018. The European Union also asks the Panel 
not to make findings or recommendations regarding Regulation  1722/2018 "given that Russia has 
 
560 Russia's first written s ubmission, paras.  922-955.  
561 Russia's first written submission, paras.  956-998.  
562 Russia's first written submission, paras.  999-1024.  
563 Russia's first written submission, paras.  1025-1084.  
564 European Union's second written submission, para.  124. 
565 Russia's response to Panel question No. 40, paras.  201 and 202.  
566 European Union's first written submission, para.  453; second written submission, para.  124. WT/DS494/R  
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  not made any claims  or arguments with regard to the conduct of the likelihood of recurrence of 
injury determinat ion in Regulation  2018".567 
7.366.   We start by noting that both parties agree that Regulation  999/2014 is still in force.568 
We also recall that both Regulation  999/2014 and Regulation  1722/2018 are within the terms of 
reference of this Panel.569  
7.367.   In our preliminary  ruling, we described the relationship between Regulation  999/2014 and 
Regulation  2018/1722 as follows:  
Regulation  2018/1722 came into force after the establishment of the Panel, but shortly 
before the composition of the Panel.  By its terms, this Regulati on amends 
Regulation  999/2014, which imposed a definitive anti -dumping duty on imports of 
ammonium nitrate originating in Russia, following a partial interim review initiated on 
17 August 2017 limited in scope to the examination of injury.  Although the ant i-dumping 
duties at issue in this dispute are currently levied on the basis of Regulation  2018/1722, 
this measure is clearly connected to the determinations made in the original 
investigation on imports of ammonium nitrate and in subsequent reviews.570  
7.368.   The partial interim review which led to Regulation  2018/1722 was initiated on 
17 August  2017 and was limited in scope to the examination of injury.571 In line with  Article  11(3) 
of the European Basic AD R egulation, the European  Commission  "examined whether the  
circumstances on the basis of which the current measures were established ha[d] changed and 
whether such change was of a lasting nature. "572 The focus of the interim review was therefore on 
the "lasting changes" claimed by the petitioners to have materialized, namely: an increased level of 
concentration of the Union industry producing the like product due to "numerous mergers and 
acquisitions"573; a decrease in the price of gas574; as well as "global market changes" in the 
ammonium nitrate market.575 As part of its interim review, the European  Commission  conducted an 
analysis of the situation of the Union industry and concluded that "the Union ind ustry [did] not suffer 
material injury within the meaning of  Article  3(5) of the basic Regulation, although it [was] not as 
healthy as in the last expiry review …".576  
7.369.   In parallel to the partial interim review, the European  Commission  also conducted an ana lysis 
of the likelihood of recurrence of injury. This analysis can be found in Section 6 of 
Regulation  2018/1722 and assesses "what would be likely to happen to the Union industry's situation 
if measures were terminated".577 As part of this likelihood of re currence of injury analysis, the 
European  Commission  examined the following elements (i) the available spare capacity in Russia; 
(ii) the behaviour of Russian exporters on third country markets; (iii) the likely future evolution of 
Russian export prices; a nd (iv) the attractiveness of the Union market. The European  Commission  
concluded that "there [was] a likelihood of recurrence of injury should the measures be removed."578 
7.370.   The likelihood of recurrence of injury analysis conducted by the European  Commission  in the 
context of the third expiry review  thus covers the same subject matter as the analysis in 
Regulation  2018/1722. In the third expiry review the European  Commission  examined (i) the 
 
567 European Union's second written submission, para.  125. See also European Union's response to 
Panel qu estion No. 86.  
568 European Union's response to Panel question No. 38, para.  113: "the European Union confirms that 
Regulation  999/2014 is still in force. It concerns an expiry review, which confirmed the likelihood of recurrence 
of dumping and injury. It a pplies for five years."  
569 Preliminary ruling of the Panel, para.  4.15.  
570 Preliminary ruling of the Panel, para.  4.12. (fns omitted)  
571 Regulation  2018/1722, (Exhibit  RUS-96), recital  13. Article  11(3) of the Basic AD Regulation  is the 
provision governing i nterim reviews. We also note that recital  14 indicates that "[o]n the same day, the 
Commission announced … the initiation of another partial review of the anti -dumping measures applicable to 
imports of ammonium nitrate originating in Russia, limited to the  examination of dumping pursuant to 
Article  11(3) of the basic Regulation."  
572 Regulation  2018/1722, (Exhibit  RUS-96), recital  46. 
573 Regulation  2018/1722, (Exhibit  RUS-96), recital  47. 
574 Regulation  2018/1722, (Exhibit  RUS-96), recital  62. 
575 Regulation  2018/1722, (Exhibit  RUS-96), recital  70. 
576 Regulation  2018/1722, (Exhibit  RUS-96), recital  130. 
577 Regulation  2018/1722, (Exhibit  RUS-96), recital  131. 
578 Regulation  2018/1722, (Exhibit  RUS-96), recital  167. WT/DS494/R  
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  situation of the Union market, including the situation of the Union industry; (ii) the spare capacity, 
trade flows, attractiveness of the Union market and pricing behaviour of Russian exporting 
producers; and (iii) the impact of the projected volume of imports and price effects in case of repeal 
of the measures.  
7.371.   In view o f the respective determinations made in Regulations 999/2014 and 2018/1722, 
which cover the same product and, in part, the same subject matter (whether injury is likely to recur 
should the anti -dumping measures lapse), we agree with the European  Union that  the adoption of 
Regulation  2018/1722, "updated" the likelihood of recurrence of injury determination made in the 
third expiry review .579 We note however that Regulation  2018/1722 is not an expiry review within 
the meaning of  Article  11.3 of the Anti -Dumping Agreement and thus does not "replace" entirely 
Regulation  999/2014, which is still in force. As noted by Russia:  
It cannot be argued that Regulation  2018/1722 replaced the likelihood -of-injury and 
likelihood -of-dumping determinations in Regulation  999/2014, insofar as the purpose 
and legal effects of Regulation  2018/1722 are different from those foreseen under  
Article  11.3 of the AD Agreement. In practical terms, this means that the decision to 
extend the duty on Russian AN is still based on the li kelihood -of-dumping and 
likelihood -of-injury determinations contained in Regulation  999/2014.  
Regulation  2018/1722 only amended "Article 1(2) of Commission Implementing 
Regulation  (EU) No 999/2014".  Regulation  2018/1722 therefore only amended "[t]he 
rate of the definitive anti -dumping duty", whereas all other findings and determinations 
in Regulation  999/2014 are unaffected by Regulation  2018/1722.580 
7.372.   We agree with Russia that Regulation  999/2014 contains the last expiry review on 
ammonium nitrate and that, although the analysis of likelihood of recurrence of injury was updated 
during the partial interim review, that Regulation  still has legal effects. We therefore find it 
appropriate to make findings with regard to Russia's claims  concerning Regulation  999/2014.   
7.373.   Regarding  the recommendations to be made by the Panel in this dispute,  Article  19.1 of the 
DSU provides that :  
[W]here a panel … concludes that a measure is inconsistent with a covered agreement, 
it shall recommend that the Member concerned bri ng the measure into conformity with 
that agreement.581  
7.374.   Despite  Article  19.1, the panel in India – Iron and Steel Products  noted that:   
[P]anels generally refrain from making recommendations on measures found to be 
inconsistent with provisions of the covere d agreements when these measure s are no 
longer in existence. Having said that, to the extent that an expired measure may 
continue to have an effect on the operation of a covered agreement, it would be 
appropriate for a panel to provide recommendations with  regard to the measures at 
issue.582 
7.375.   We recall that, in the present case, the European  Union does not argue  that 
Regulation  999/2014 is no longer in existence. Its argument is that the Panel should not make a 
recommendation with regard to the determinations contained in Regulation  999/2014, because they 
were later "updated" in Regulation  2018/1722. We agree with past panels tha t, in considering 
whether to make a recommendation under  Article  19 of the DSU, we  must take into account relevant 
amendments and other relevant developments relating to the measure at issue .583 Therefore, should 
we find that the European  Commission 's likel ihood of recurrence of injury determination in 
Regulation  999/2014 is inconsistent with the Anti -Dumping Agreement, we would, before making 
 
579 European Union's second written subm ission, para.  125. 
580 Russia's response to Panel question No. 86, paras.  100 and 102.  
581 Fns omitted.  
582 Panel Report, India – Iron and Steel Products, para. 7.27. (fns omitted)  
583 Panel Report, Russia – Tariff Treatment , para.  7.85. WT/DS494/R  
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  recommendations as instructed by  Article  19.1 of the DSU, examine to what extent the adoption of 
Regulation  2018/172 2, affects our ability to do so.  
7.376.   We now turn to the question of the legal standard applicable to our examination of 
Russia's  claims  concerning the EU's likelihood of recurrence of injury determination.  
The relevant legal standard for the Panel's examinat ion of Russia's claims  relating 
to the likelihood of recurrence of injury determination  
7.377.   In its claims  #5 to #8 , Russia asks the Panel to make findings under  Article  11.3 and  
Article  3 of the Anti -Dumping Agreement. In claim #6 Russia also asks the Panel to  make a 
finding  under  Article  4.1 of the Anti -Dumping Agreement. The European  Union asks the Panel to 
reject claims  made on the basis of  Article  3, because  Article  11.3 is the only provision applicable to 
expiry reviews.584 We thus begin our analysis of Russia's claims  #5 to #8 by recalling the legal 
standard applicable to a panel's examination of an authority's determination of likelihood of 
recurrence of injury.  
7.378.   We recall first that a  likelihood -of-injury determination in an expiry  review requires that an 
investigating authority review whether the expiry of the anti -dumping measures in force would be 
likely to lead to continuation or recurrence of injury. This determination is different from a 
determination of injury in an original investigation, which requires that investigating authorities 
determine whether the domestic industry experienced material injury or a threat of material injury 
in the period covered by the original investigation, in the sense of  Article  3 of the 
Anti-Dumping  Agreement. In US – Corrosion -Resistant Steel Sunset Review , the Appellate Body 
recalled the nature of the analysis to be undertaken in an expiry review and distinguished it from 
the analysis to be undertaken in an original investigation:  
The l ikelihood determination is a prospective determination. In other words, the 
authorities must undertake a forward -looking analysis and seek to resolve the issue of 
what would be likely to occur if the duty were terminated. In considering the nature of 
a likelihood determination in a sunset review under  Article  11.3, we recall our statement 
in US – Carbon Steel , in the context of the SCM Agreement, that:  
… original investigations and sunset reviews are distinct processes with 
different purposes. The nature o f the determination to be made in a sunset 
review differs in certain essential respects from the nature of the 
determination to be made in an original investigation.  
This observation applies also to original investigations and sunset reviews under the 
Anti-Dumping Agreement. In an original anti -dumping investigation, investigating 
authorities must determine whether dumping exists  during the period of investigation. 
In contrast, in a sunset review of an anti -dumping duty, investigating authorities must 
determine whether the expiry of the duty that was imposed at the conclusion of an 
original investigation would be likely to lead to continuation or recurrence of dumping .585 
7.379.   The panel in EU – Footwear  came to a similar conclusion and insisted on the need to take 
account of the fact that, in an expiry review, "an anti -dumping measure has been in place for some 
time":  
In original anti -dumping investigations, investigating authorities must determine 
whether the domestic industry of a Member is materially injure d by dumped imports. 
At this stage, the focus is on the existence of "material injury" at the time of the 
determination. That determination is made under  Article  3, based on information 
concerning the necessary and relevant factors for some previous period . In contrast, in 
an expiry review, an anti -dumping measure has been in place for some time, and 
 
584 European Union's respons e to the Panel question No. 44, para.  135. We do not understand the 
European Union to argue, however, that the provisions of Article  4 ("Definition of the Domestic Industry") do 
not apply in the context of expiry reviews.  
585 Appellate Body Report, US – Corrosion -Resistant Steel Sunset Review, paras.  105-107. (fns omitted)  WT/DS494/R  
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  investigating authorities must, based on a fresh analysis, determine whether the expiry 
of that measure would be likely to lead to continuation or recurrence o f injury.586 
7.380.   Thus, previous panels and the Appellate Body have found that , if the requirements of  
Article  3 of the Anti -Dumping  Agreement apply to the determination of injury in the context of an 
original investigation, they do not apply directly in the con text of an expiry review. In this regard, 
the Appellate Body stated clearly in US – Oil Country Tubular Goods Sunset Review  that 
"investigating authorities are not mandated  to follow the provisions of  Article  3 when making a 
likelihood -of-injury determination".587  
7.381.   While we agree with these past panel and Appellate Body rulings on this issue, we are also 
mindful that the provisions of  Article  3 of the Anti -Dumping Agreement, although not directly 
applicable, may be relevant to our interpretation of the obligations contained in  Article  11.3. We find 
particularly relevant that the Appellate Body stated:  
This is not to say, however, that in a sunset review determination, an investigating 
authority is never required to examine any of t he factors listed in the paragraphs of  
Article  3. Certain of the analyses mandated by  Article  3 and necessarily relevant in an 
original investigation may prove to be probative, or possibly even required, in order for 
an investigating authority in a sunset review to arrive at a "reasoned conclusion".  In 
this respect, we are of the view that the fundamental requirement of  Article  3.1 that an 
injury determination be based on "positive evidence" and an "objective examination" 
would be equally relevant to likeli hood determinations under  Article  11.3. It seems to 
us that factors such as the volume, price effects, and the impact on the domestic 
industry of dumped imports, taking into account the conditions of competition, may be 
relevant to varying degrees in a giv en likelihood -of-injury determination. An 
investigating authority may also, in its own judgement, consider other factors contained 
in Article  3 when making a likelihood -of-injury determination. But the  necessity of 
conducting such an analysis in a given ca se results from the requirement imposed by  
Article  11.3 -not Article  3- that a likelihood -of-injury determination rest on a "sufficient 
factual basis" that allows the agency to draw "reasoned and adequate conclusions".588 
7.382.   We also recall the statement of the  panel in EU – Footwear (China)  that:  
In our view, a failure to examine relevant factors set out in the substantive provisions 
of Article  3 in the determination of likelihood of continuation or recurrence of injury 
could preclude an investigating authority from reaching a  "reasoned conclusion ", which 
would result in a violation of  Article  11.3 of the AD Agreement. However, we recall that 
a determination of injury under  Article  3 is not required under  Article  11.3. Thus, we do 
not consider that all factors relevant to an injury determination under  Article  3 are 
necessarily relevant to a determination of likelihood of continuation or recurrence  of 
injury under  Article  11.3.589  
7.383.   Therefore , while the fundamental requirement of Article 3.1 that an injury determination be 
based on "positive evidence" and an "objective examination" are equally relevant to likelihood 
determinations under Article 11.3 , we take the view that an investigating authority is not obliged to 
comply with the provisions of  Article  3 in making a likelihood -of-injury determination , unless that 
determination is based on a finding of material injury . As a consequence, we reject 
Russi a's claim  related to the consistency of the European Union's likelihood of recurrence of injury 
determination with  Article  3 of the Anti -Dumping Agreement. Instead, we will examine the 
determinations made by the European  Commission  in light of the obligations contained in  
Article  11.3 of the Anti -Dumping Agreement. In doing so, we will refer to the provisions of  Article  3 
as context, as nec essary and depending upon the nature of the determinations made by the 
European  Commission , for interpreting the obligations contained in  Article  11.3.  
 
586 Panel Report, EU – Footwear (China) , para.  7.329.  
587 Appellate Body Report, US – Oil Country Tubular Goods Sunset Review, para. 280. The 
European  Union al so cites the panel report in the same case, which states that "the obligations set out in 
Article  3 do not normally apply to sunset reviews." (European Union's first written submission, para.  456).  
588 Appellate Body Report, US – Oil Country Tubular Goods Su nset Review , para.  284. 
589 Panel Report, EU – Footwear (China) , para.  7.333.  WT/DS494/R  
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Whether the European  Union erred  by failing to perform proper undercutting 
calculations ( claim  #5) 
Introduction  
7.384.   Russia claims  that, in the context of the third expiry review, the European  Commission  
carried out undercutting calculations in a manner inconsistent with the provisions of  Articles  3.1, 3.2 
and 11.3 of the Anti -Dumping Agreement.590 Specifically, Russia submits that  Regulation  999/2014 
contains:  
a. a comparison between the average Russian CIF export prices to the EU and the average 
ex-works prices of the sampled EU domestic producers591; and  
b. a comparison between the Russian average ex -works export pri ces to third countries, with 
the sampled EU domestic producers' ex -works sales prices.592  
7.385.   For Russia, these comparisons are the basis for the authority's conclusions that:  
a. a surge of [Russian] imports in significant quantities at undercutting  prices will exert a 
strong pressure on the industry's sales prices and cause it to lose significant market 
share593; and 
b. Russian AN would be exported to the Union market in significant volumes and at an 
injurious price level .594 
7.386.   Russia therefore claims  that the following deficiencies in the European  Commission 's 
undercutting calculations violate  Articles  3.1, 3.2 and 11.3:  
a. the European  Commission  disregarded the prices of two Russian exporters subject to price 
undertakings595;  
b. the European  Commission  disrega rded the import price of stabilized AN from Russia596;  
c. the European  Commission  disregarded the prices of a non -sampled cooperating Russian 
producer/exporter (OJSC Kuybyshevazot), which sold at prices which did not undercut the 
price of EU domestic producers597; and 
d. the European  Commission  did not examine whether the allegedly dumped imports from 
Russia had "explanatory force" for the significant depression or suppression of domestic 
prices .598 
7.387.   In addition, with regard to the comparison between the price of Russian exports to third 
countries and EU domestic prices, Russia alleges that:  
 
590 Russia's first written submission, para.  935. 
591 Regulation  999/2014, (Exhibit  RUS-66), recital  112: "[b]y comparing the average Russian CIF export 
prices to the Union with the av erage ex -works price of the Union producers during the RIP, it appears that the 
Russian prices are undercutting the Union prices." See also Russia's first written submission, para.  936.  
592 Regulation  999/2014, (Exhibit  RUS-66), recital  160: "during the RIP , Russian export prices to third 
countries were on average … or 34% lower than the current average price at which Union producers sell in the 
Union." See also Russia's first written submission, para.  936. 
593 Russia's  first written submission, para.  935 (quo ting Regulation  999/2014, (Exhibit  RUS-66), 
recital  169).  
594 Russia's first written submission, para.  935 (quoting Regulation  999/2014, (Exhibit  RUS-66), 
recital  166).  
595 Russia's first written submission, para.  940. 
596 Russia's first written submission, par a. 942. 
597 Russia's first written submission, para.  943. 
598 Russia's first written submission, para.  944. WT/DS494/R  
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  a. the European  Commission  failed to consider whether there had been a significant price 
undercutting by the dumpe d imports, as compared with the prices of the EU domestic 
industry599; and 
b. finally , the European  Commission  did not consider whether adjustments were necessary 
in order to ensure that the price undercutting analysis was objective600. Adjustments 
requested an d documented by the representatives of Russian producers/exporters were 
simply disregarde d.601 
7.388.   The European  Union responds that  Article  11.3 does not impose any particular methodology 
for analysing the likelihood that injury would recur after anti -dumping m easures expire. For the 
European Union, an investigating authority is not obliged to carry out price undercutting calculations 
in the sense of  Article  3 of the Anti -Dumping Agreement. In the context of the third expiry review, 
the European  Commission  "assessed what the potential impact of the Russian exports to the Union 
market and on the Union industry would be if the measures in force were allowed to lapse ".602 The 
European  Union insists that its analysis did not include a price undercutting calculation be cause 
"almost all exporting producers which sold the product concerned during the review investigation 
period had price undertakings" which could "not be considered as a reliable indicator in order to 
carry out a reliable and meaningful undercutting calcul ation" .603 Instead, the authority made a 
"forward -looking analysis"604 of the likely diversion of trade flows605 and of the likely prices of 
additional Russian exports to the Union606, should the anti -dumping measures lapse. Such a 
"forward -looking" analysis "does not require  the demonstration that dumped imports  have 
explanatory force for price effects ".607 In general, the European  Union submits that its price analysis 
was based on positive evidence, "namely the export prices of Russian produ cers to third countries"608 
and supported the Commission's "reasoned conclusions."609 
Analysis  
7.389.   We recall that the measure at issue is Regulation  999/2014, which sets out the results of 
the third expiry review conducted by the European  Union under its domesti c legislation implementing  
Article  11 of the Anti -Dumping Agreement. There is no dispute between the parties that  Article  11.3 
of the Anti -Dumping Agreement is specifically concerned with such reviews. In contrast, the 
European  Union has asked us, and we h ave agreed, to reject Russia's claims  under  Article  3 of the 
Anti-Dumping Agreement, because this provision is not directly applicable in the context of an expiry 
review. Having set out above the legal standard for our review of Russia's claims  under  Article 11.3, 
we now turn to examining the arguments of the parties.  
7.390.   In view of the parties' submissions before the Panel, we note that they  disagree :  
a. on the nature  of the analysis carried out by the European  Commission  in the context of 
the third expiry review  (whether an undercutting calculation was used to support the 
likelihood of recurrence of injury determination);  and  
b. on whether the price analysis conducted by the European  Commission  is consistent with  
Article  11.3 of the Anti -Dumping Agreement.  
7.391.   We start by setting out the arguments of the parties on these two issues, before turning to 
our analysis of the determination reached by the investigating authority.  
 
599 Russia's first written submission, para.  948. 
600 Russia's first written submission, para.  949. 
601 Russia's first written submission, para.  950. 
602 Europe an Union's first written submission, para.  459 (referring to Regulation  999/2014, 
(Exhibit  RUS-66), recital  148).  
603 European Union's first written submission, para.  459 (referring to Regulation  999/2014, 
(Exhibit  RUS-66), recital  112).  
604 European Union's first written submission, para.  461.  
605 European Union's first written submission, para.  462. 
606 European Union's fir st written submission, para.  466. 
607 European Union's first written submission, para.  471. (emphasis original)  
608 European Union's first written submission, para.  474. 
609 European Union's first written submission, para.  462. WT/DS494/R  
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  7.7.3.4.2.1   Arguments of the parties  
7.392.   Russia argues that the European  Commission 's determination of likelihood of recurrence of 
injury includes an analysis of "the price effect of future dumped imports through an undercutting  
calculation"610 of the prices of the domestic like product by Russian  exports. Russia points in 
particular to recitals 112, 160, 166 and 169 of Regulation  999/2014.611 Recital 112 states that "[b]y 
comparing the average Russian CIF export prices to the Union with the average ex -works prices of 
the Union producers during the RIP, it appears that the Russian prices are undercutting the Union 
price". In turn, recital 160 states that "[d]uring the RIP, Russian export prices to third countries 
were on average 201 EUR/tonne  or 34% lower than the current average price at which Union  
producers sell in the Union. " For Russia, these comparisons demonstrate that the 
European  Commission  calculated a margin of undercutting in support of its conclusion that "it is 
likely that the price levels at which Russian exports will enter the Union in  the absence of measures 
would be below the Union cost of manufacturing plus a reasonable profit margin and therefore be 
injurious".612 Russia claims  that this price undercutting analysis is inconsistent with the obligations 
contained in  Article  3 and with the provisions of  Article  11.3 of the Anti -Dumping Agreement.613  
7.393.   The European  Union disagrees that Regulation  999/2014 contains a price undercutting 
analysis .614 Although table 6 of Regulation  999/2014 evaluates the average CIF price of Russian 
imports, the Regulation  clarifies that "such export prices cannot be considered as a reliable indicator 
in order to carry out a reliable and meaningful undercutting calculation."615 The European  Union 
refers to the "clear" language used by the authority in Regulation  999/2014 that: "the Commission 
did not carry out any undercutting and underselling calculations  …" and that "[t]he Commission is 
not asserting that, should measures be allowed to lapse, Russian  exports would undercut Union 
prices by 34%".616 In order to justify why an undercutting calculation was not relevant  or practicable , 
the European  Union explains that "almost all exporting producers which sold the product concerned 
during the review investi gation period had price undertakings and their export prices to the 
European  Union were determined by those price undertakings which set minimum prices."617 In 
addition, the European  Union argues that Russian export sales to the Union market could not be 
used because of a lack of sales of the product concerned by three of the sampled producers/exporters 
(EuroChem, UralChem and SBU Azot) during the review period:  
Export sales to the Union could not be used for the determining the future behaviour of 
the thre e other sampled exporting producers for the following reasons. During the RIP, 
EuroChem and Acron only exported under the price undertaking. EuroChem had sales 
to the Union only during the period it had an undertaking in force, while it had no sales 
after the undertaking was withdrawn by the Commission by means of 
Decision  2012/629/EU. As far as SBU Azot and UralChem are concerned, they did not 
sell the product concerned to the Union during the RIP.618 
7.394.   For the European Union, the "prices under the price unde rtakings are not the result of the 
normal interaction of supply and demand in the market". 619 As a result, "Russian import prices to 
the European  Union during the investigated period could not serve as positive evidence to reach … 
 
610 Russia's first written submissio n, para. 936; second written submission, para.  1126. 
(emphasis  added)  
611 Russia's response to Panel question No. 42, para.  203. 
612 Regulation  999/2014, (Exhibit  RUS-66), recital  162. 
613 We do not understand Russia's claim  #5 under Article  11.3 to be consequen tial to its claims  under 
Articles  3.1 and 3.2. See for example, Russia's first written submission, para.  955: "by failing to conduct 
undercutting calculations that conform to Articles  11.3, 3.1 and 3.2 of the Anti -Dumping Agreement the 
EU acted contrary to  its obligations under these Articles."  
614 European Union's response to Panel question No. 42, para.  128: "[t]here is no undercutting analysis 
anywhere in Regulation  999/2014, and thus also not in the mentioned recitals. In recital  (112), it is exactly 
explained why the Commission could not make a  price undercutting analysis on the basis of the price 
undertakings".  
615 Regulation  999/2014, (Exhibit  RUS-66), recital  112. 
616 European Union's second written submission, para.  136 (quoting Regulation  999/2014, 
(Exhibit  RUS-66), recitals  114 and 162. See al so European Union's response to Panel question No. 41, 
para. 120. (emphasis omitted)  
617 European Union's first written submission, para.  459. 
618 Final disclosure, (Exhibit  RUS-78 (BCI)), recital  43. 
619 European Union's first written submission, para.  468. WT/DS494/R  
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  reasoned conclusions".620 Instead of basing its determination on a price undercutting calculation 
between the export price of Russian producers and the price of domestic producers on the Union 
market, the European  Union submits that it made a " 'forward -looking analy sis' based on reliable 
available evidence about pricing, together with data on consumption, spare capacity, trade flows 
and attractiveness of the Union market."621 The European  Union insists that its  likelihood of 
recurrence of injury determination is based  on the following four elements, which are set out both 
in the final disclosure622 and in Regulation  999/2014:  
a. the spare capacity of the product concerned623;  
b. the attractiveness of the Union market: in view of the fact that since "prices on the Union 
marke t were … at a level substantially above prices on … third country markets", the 
authority considered that "Russian producers [would] have a strong incentive not only to 
use their spare capacity for the Union market, but also to redirect some of their curre nt 
exports to third countries to the Union market"624; and in view of the geographical 
proximity and "the existence of well -established distribution channels"625;  
c. limitations to additional Russian exports to third countries, in view of the fact that "Russia n 
spare capacity [was] more than twice the predicted increase in consumption in those 
markets"626; and 
d. the expected price of Russian exports to the European  Union market, should the measures 
lapse.627  
7.395.   Having set out the arguments of the parties with regard to the type of price analysis 
conducted by the European  Commission , we now examine the merits of Russia's claim  under  
Article  11.3 of the Anti -Dumping Agreement.  
7.7.3.4.2.2   Evaluation by the Panel  
7.396.   In view of th e arguments made by the parties, we start our evaluation of Russia's claim  #5 
by examining whether, as submitted by Russia, the European  Commission  conducted an 
undercutting calculation as part of its analysis of the price effect of future dumped imports.628 
We then turn to examining whether the price analysis conducted by the European  Commission  is 
consistent with the provisions of  Article  11.3 of the Anti -Dumping Agreement.629  
Whether the investigating authority made an undercutting calculation in the cont ext of 
the third expiry review  
7.397.   We start by recalling what an analysis of significant price undercutting means in the context 
of Article  3 of the Anti -Dumping Agreement.  
7.398.   The second sentence of  Article  3.2 of the Anti -Dumping Agreement , which is the relevant 
provision here, reads:  
With regard to the effect of the dumped imports, the investigating authorities shall 
consider whether there has been a significant price undercutting  by the dumped imports 
as compared with the price of a like  product of the importing Member, or whether the 
 
620 European Union's second written submission, para.  147. 
621 European Union's first written submission, para.  461. (fn omitted)  
622 Final disclosure, (Exhibit  RUS-78 (BCI)).  
623 Regulation  999/2014, (Exhibit  RUS-66), recital  152. 
624 Regulation  999/2014, (Exhibit  RUS-66), recital  153. 
625 Regulation  999/2014, (Exhibit  RUS-66), recital  155. 
626 Regulation  999/2014, (Exhibit  RUS-66), recital  154. 
627 Regulation  999/201 4, (Exhibit  RUS-66), recitals  159-160.  
628 Russia's response to Panel question No. 42.  
629 Russia requested us to find that "even if the Panel finds that the European  Commission  did not 
conduct an undercutting analysis inconsistent with the provisions of Article  3 of the AD Agreement, the EU 
nevertheless acted in breach of Article  11.3 of the AD Agreement." (Russia 's response to Panel question 
No. 44, para.  213).  WT/DS494/R  
BCI deleted, as indicated  [[***]] 
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  effect of such imports is otherwise to depress prices to a significant degree or prevent 
price increases, which otherwise would have occurred, to a significant degree.630 
7.399.   A price undercutting calculation is t hus a compulsory element of the analysis mandated 
under  Article  3.2 in the context of an original investigation . Article  3.2 expressly establishes "a link 
between the price of subject imports and that of like domestic products" by requiring that a 
comparis on be made between the two.631 It is well established that  a price undercutting analysis 
requires more than a mere comparison between two prices. As stated by the Appellate Body in 
China  – HP-SSST (Japan) :  
[P]rice undercutting, under  Article  3.2, is merely  concerned with the question of 
whether there is a mathematical difference, at any point in time during the POI, between 
the prices of the dumped imports and the comparable domestic products. 632 
The fact that  Article  3.2 expressly establishes "a link betwe en the price of subject 
imports and that of like domestic products, by requiring that a comparison be made 
between the two", does not mean that an investigating authority can comply with its 
obligations under  Article  3.2 by simply considering "whether subj ect imports 'sell at 
lower prices than' comparable domestic products". While an examination of whether 
there is a price differential between imported and domestic products may be a useful 
starting point for an analysis of price undercutting, it does not pr ovide a sufficient basis 
for an investigating authority to satisfy its obligation under  Article  3.2.633 
7.400.   Instead, the Appellate Body ruled that:  
[A] proper reading of "price undercutting" under  Article  3.2 suggests that the inquiry 
requires a dynamic assess ment of price developments and trends in the relationship 
between the prices of the dumped imports and those of domestic like products over the 
entire period of investigation (POI). An examination of such developments and trends 
includes assessing whether import and domestic prices are moving in the same or 
contrary directions, and whether there has been a sudden and substantial increase in 
the domestic prices.634  
The significance of the price undercutting found on the basis of that dynamic assessment 
is a question of the magnitude of the price undercutting. What amounts to significant 
price undercutting – that is, whether the undercutting is important, notable, or 
consequential – will therefore necessarily depend on the circumstances of each case.635  
7.401.   Further, when conducting a price effects analysis and comparing prices of the imported 
product to a certain domestic product, panels and the Appellate Body have emphasized that it is 
appropriate and important to consider factors affecting comparability, in cluding the competitive 
relationship between the imported and domestic products at issue. Specifically, the Appellate Body 
found that even though there is no explicit requirement regarding price comparability in  Article  3.2, 
a failure to ensure price compa rability would be  incompatible with basic principles for injury 
determination provided in  Article  3.1.636  
7.402.   Turning to the content of both the final disclosure  and Regulation  999/2014 , we agree with 
Russia that these documents do not  set out  the elements of the kind of undercutting analysis that 
is contemplated in  Article  3.2 of the Anti -Dumping Agreement. We also agree with Russia that 
several recitals of the final disclosure  and Regulation  999/2014 point to  an analysis of the respective 
 
630 Emphasis added.  
631 Appellate Body Report, China – GOES , para.  136. 
632 Appellate Body Reports, China – HP-SSST (Japan) / China – HP-SSST (EU) , para.  5.160.  
633 Appellate Body Reports, China – HP-SSST (Japan) / China – HP-SSST (EU) , para. 5.163. 
(fns omitted)  
634 Appellate Body Reports, China – HP-SSST (Japan) / China – HP-SSST (EU) , para.  5.159.  
635 Appellate Body Reports, China – HP-SSST (Japan) / China – HP-SSST (EU) , para.  5.161. 
(emphasis  omitted; fn omitted)  
636 Appellate Body Report, China – GOES , para.  200. WT/DS494/R  
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  prices of domestic sales and Russian sales to the European Union and to third countries  during the 
review period .  
7.403.   However, as recalled above, an undercutting analysis is not "merely" about the mathematical 
difference, at any point in time during the POI, bet ween the prices of the dumped imports and the 
comparable domestic products. We also recall that such an analysis is not required in the context of 
an expiry review. In this regard, we are mindful of the findings of the panel in US – Oil Country 
Tubular Goods Sunset Review  according to which:  
Article  11.3 does not mention whether an investigating authority is required to calculate 
the price effect of future dumped imports on the prices of the domestic industry . … 
[T]his means that an investigatin g authority is not necessarily required to carry out that 
calculation in a sunset review.637  
7.404.   In fact, the record shows that the investigating authority expressly stated that it did not 
perform an undercutting analysis. Instead, "the analysis focused on the  consumption trends of the 
Union market, spare capacity, trade flows, the attractiveness of the Union market, and pricing 
behaviour of the Russian producers".638 On this last point, the European  Commission  found that it 
was "unclear how [Russian exporters s ubject to a price undertaking] would set their prices if the 
undertakings lapse together with the anti -dumping duties". It thus relied on the export price of the 
sampled Russian producers/exporters to third countries  in order to estimate "at what prices th ose 
additional exports from companies not subject to a price undertaking [were] likely to take place" .639 
We are of the opinion that this is a reasonable approach to examine one of the relevant determinants 
of whether the expiry of the existing duty and pri ce undertakings would be likely to lead to the 
recurrence of injury.  
7.405.   We therefore reject Russia's claim  that "the EU failed to comply with its obligation to conduct 
an 'objective determination' based on 'positive evidence' in the determination of price und ercutting  
under  Articles  3.1 and 3.2 of the Anti -Dumping Agreement in the investigation that led to the 
adoption of Regulation  999/2014".640 For the same reasons, we also reject Russia's claim  that the 
European Union violated  Article  11.3 of the Anti -Dumping Agreement by failing to consider whether 
there had been a significant price undercutting by the dumped imports , as compared with the prices 
of the EU domestic industry .641 
Whether the European Union's price analysis breached  Article  11.3 of the 
Anti-Dumping  Agreement  
7.406.   We now turn to Russia's claim  that "the EU failed to satisfy the requirement that the 
likelihood -of-injury determination rests on a 'sufficient factual basis' that allows the investigating 
authority to arrive at a reasoned conclusion und er Article  11.3 of the Anti -Dumping Agreement".642 
In considering Russia's claim , we are mindful that the requirement to make a "determination" 
concerning likelihood:  
[P]recludes an investigating authority from simply assuming that likelihood exists. In 
order to continue the imposition of the measure after the expiry of the five -year 
application period, it is clear that the investigating authority has to determine, on the 
basis of positive evidence, that termination of the duty is likely to lead to continuat ion 
or recurrence of dumping and injury. An investigating authority must have a sufficient 
factual basis to allow it to draw reasoned and adequate conclusions concerning the 
likelihood of such continuation or recurrence.643  
 
637 European Union's first written submission, para.  457 and fn 482 (referring to Panel Report, US – Oil 
Country Tubular Goods Sunset Reviews , para.  7.273). See also Panel Report, US – Oil Country Tubular Goods 
Sunset Reviews , para.  7.274.  
638 Regulation  999/2014, (Exhibit  RUS-66), recital  149. 
639 Regulation  999/2014, (Exhibit  RUS-66), recitals  159-160. 
640 Russia's first written submission, para.  939. (emphasis added)  
641 Russia's first written submission, para.  948. 
642 Russia's first written submission, para.  939. 
643 Appellate Body Report, US – Corrosion -Resistant Steel Sunset Review , para.  114 (quoting Panel 
Report, US – Corrosion -Resistant Steel Sunset Review , para.  7.271).  WT/DS494/R  
BCI deleted, as indicated  [[***]] 
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  7.407.   We find it relevant for our anal ysis of the European Union's determination that the 
requirements of "positive evidence" and "objective examination" contained in  Article  3.1 of the 
Anti-Dumping Agreement are not to be applied in the abstract: they relate to two essential elements 
of an in jury analysis:  
a. the volume of the dumped imports and the effect of the dumped imports on prices in the 
domestic market for like products ; and  
b. the consequent impact of these imports on domestic producers of such products.  
7.408.   Since these elements are compulsory aspects of an "objective examination" of injury, we do 
not exclude that they could be relevant in the context of an "objective examination" of t he likelihood 
of recurrence of injury in an expiry review. Thus, "factors such as the volume, price effects, and the 
impact on the domestic industry of dumped imports, taking into account the conditions of 
competition, may be relevant to varying degrees in  a given likelihood -of-injury determination.  [But] 
[a]n investigating authority may also, in its own judgement, consider other factors contained in  
Article  3 when making a likelihood -of-injury determination".644  
7.409.   In assessing the consistency of the European  Commission 's price analysis with  Article  11.3, 
we are particularly mindful that , "in an expiry review, an anti -dumping measure has been in place 
for some time, and investigating authorities must, based on a fresh analysis, determine whether the 
expiry of that measure would be likely to lead to continuation or recurrence of injury".645 For that 
reason, we disagree with Russia that a price undercutting analysis based on a comparison of the 
price of Russian exports of AN to the Union market with the price of d omestic producers would have 
provided a more objective basis for assessing the likelihood of recurrence of injury in the present 
case. As the European  Commission  recognized, Russian import prices could not be used for this 
purpose as they were subject to a  price undertaking or in any case affected by the anti -dumping 
duties. In this regard, we find that the reasons set out by the European  Commission  for disregarding 
the export price of Russian exporters which had committed to a price undertaking to be reaso ned 
and adequate. We are of the view that the anti -dumping measures in place necessarily have an 
impact on the volume and price of Russian AN imports in the Union market. As such, the price of 
those imports cannot be considered as a reliable indicator of t he future behaviour of Russian 
producers/exporters, should the measures lapse. Further, we agree with the European  Union that 
investigating authorities "are not restricted in the choice of methodology they will follow, as long as 
they arrive at reasoned co nclusions on the basis of positive evidence."646  
7.410.   In the present case, we note that the European  Commission 's determination is based on a 
variety of factors, including the export price of Russian exports to third countries, the spare capacity 
in Russia and the attractiveness of the Union market and other third markets. On this last point, the 
European  Commission  found that it was "unclear how [Russian exporters subject to a price 
undertaking] would set their prices if the undertakings lapse together with the  anti-dumping 
duties".647 It thus relied on the export price of the sampled Russian producers/exporters to third 
countries in order to estimate "at what prices those additional exports from companies not subject 
to a price undertaking [were] likely to take place". In particular, t he authority noted: "it is likely that 
Russian exports from companies not subject to a price undertaking, in the absence of anti -dumping 
measures, would enter the Union market at an average price level below that of the import prices 
from third countries a nd also below that of imports from Russia under the undertaking, which are at 
the higher end of the non -injurious target price of the Union industry."648 In addition, the 
investigating authority found that "the current cost of production, and therefore the current 
non-injurious price is unlikely to decrease in the short term, given the trend of increased cost of 
production during the period considered".649 
 
644 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para.  284. 
645 Panel Report, EU – Footwear (China) , para.  7.329.  
646 European Union's first w ritten submission, para.  458. See also European Union's second written 
submission, paras.  128, 131, and 133 -134. 
647 Regulation  999/2014, (Exhibit  RUS-66), recital  159. 
648 Regulation  999/2014, (Exhibit  RUS-66), recital  160. The conclusion in this recital  also relies on the 
analysis of the price of Russian exports of AN to third countries included in the section of Regulation  999/2014 
dedicated to the likelihood of recurrence of dumping.  
649 Regulation  999/2014, (Exhibit  RUS-66), recital  163. WT/DS494/R  
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  7.411.   We consider that these factors and their analysis by the European  Commission , as set out 
in the final disclosure and in Regulation  999/2014, are relevant and consistent with the obligation 
to adopt a forward -looking approach and to base the determination o n positive evidence and on an 
objective examination. In the context of the forward -looking analysis which the 
European  Commission  was carrying out, the authority was not obliged to consider whether dumped 
imports during the review investigation period (i.e . in the past) had "explanatory force" for the 
significant depression or suppression of domestic prices. In fact, we note that the 
European  Commission  examined the likely impact on domestic prices of future imports of Russian 
AN, should the measures lapse.  We therefore reject Russia's claim  that the European Union breached  
Article  11.3 of the Anti -Dumping Agreement by failing to consider whether the allegedly dumped 
imports from Russia had "explanatory force" for the significant depression or suppression of  domestic 
prices  
7.412.   We therefore reject Russia's claim  that the European  Union violated  Article  11.3 of the 
Anti-Dumping Agreement by:  
a. disregarding the prices of two Russian exporters (Acron and EuroChem) subject to price 
undertakings650;  
b. failing to examine whether the allegedly dumped imports from Russia had "explanatory 
force" for the significant depression or suppression of domestic prices651; and  
c. failing to consider whether there had been a significant price undercutting by the dumped 
imports, as compared with the prices of the EU domestic industry .652 
7.413.   Finally , we examine two additional arguments made by Russia in support of its claim  #5.  
Whether the  European authority violated  Article  11.3 of the Anti -Dumping  Agreement by 
disregarding the price of export sales of stabilized AN and export sales of OJSC 
Kuybyshevazot  
7.414.   Russia argues first that the European Union's likelihood of recurrence of injury analysis 
disregarded the import price of one of the product types covered by the definition of the product  
concerned: stabilized AN. Russia submits that failure to consider imports of this product type had an 
impact on the final determination reached by the authority, because the price of Russian 
stabilized  AN was higher than the price of the Union industry .653 Further, Russia considers that  since 
those imports were not subject  to anti -dumping measures, "they are the best benchmark of what 
the pricing behaviour of Russian exporting producers would be, absent the anti -dumping 
measures."654 In support of its argument, Russia points to the comments on the definitive disclosure 
made by representatives of Russian exporters, which state:  
As RFPA has argued in its submission of 30 September 2013 the Commission also has 
at its disposal data on imp orts into the Union of Stabilized AN manufactured by a Russian 
exporter that is exempted from the antidumping duties. The price of such stabilized AN 
was verified and should also be taken into account as evidence of the likely Russian 
price behaviour on th e Union market following the termination of the measures.655 
7.415.   Russia also points to the questionnaire response of one of the sampled exporters 
(UralChem), which contains a table showing that, during the review period, stabilized AN from Kirovo 
was indeed exported to the European Union.656  
7.416.   Further, Russia argues that the European  Commission  also failed to consider the export price 
of a non -sampled producer (OJSC Kuybyshevazot) 657 which, according to Russia, sold in the review 
 
650 Russia's first wri tten submission, para.  940. 
651 Russia's first written submission, para.  944. 
652 Russia's first written submission, para.  948. 
653 Russia's first written submission, para.  942; second written submission, paras.  1140-1141.  
654 Russia's second written submission, para. 1141.  
655 Comments by RFPA on the definitive disclosure (8  July 2014), (Exhibit  RUS-79 (BCI)), p.  35. 
656 Responses to questionnaires provided by Ural Chem, (Exhibit  RUS-144 (BCI)), p.  5. 
657 Russia's first written submission, para.  943; second written subm ission, para.  1142.  WT/DS494/R  
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  period without a price undertaking  and at prices that did not undercut the EU domestic industry's 
prices. In their comments on the definitive disclosure, the representatives of Russian 
producers/exporters stated that:  
[A] significant volume of AN at a relatively high price, that does not result into price 
undercutting or underselling, was sold in the RIP into the EU by a cooperating Russian 
exporter Kuybyshevazot. Such sale was made outside of any price undertaking. RFPA 
requests that the high prices of such sale should be taken as an indi cation of what prices 
might be on the Union market following the termination of the measures.658  
7.417.   In response to Russia's argument regarding stabilized AN, the European  Union points to two 
factors:  
a. First, the European  Union recalls that imports of stabili zed AN from Kirovo are expressly 
excluded from the product concerned. Regulation  999/2014  states that:  
[A]s far as SBU Azot and UralChem [Kirovo] are concerned  … [they] did 
not sell the product concerned to the Union during the [RIP].659 
b. Second, with regard to sales made by OJSC Kuybyshevazot during the review period, the 
European  Commission  explains that its imports were included in the 
authority's  evaluation, since they were reflected in the database used to calculate the 
volume and average price of Russian exports to the Union during the review period.  
7.418.   In view of the evidence on the recor d, we are not convinced by Russia's argument that 
disregarding sales made by Kirovo and OJSC Kuybyshevazot  amounts to a violation of the duty to 
conduct an objective examination :  
a. Concerning sales of stabili zed AN from Kirovo, we disagree with Russia that these sales  
are the "best benchmark " of what the pricing behaviour of Russian exporting producers 
would be, absent the anti -dumping measures . The fact that these imports are not within 
the product scope of the measures places them in a competitive position  which would no 
longer prevail should the anti -dumping measures lapse: these imports would have to 
compete with other Russian imports no longer submitted to anti -dumping measures. Their 
price is therefore not a good indicator of what the pricing behaviour of Russian exporting 
producers would be in the absence of measures.  
b. Since OJSC Kuybyshevazot was not among the sampled exporters, we fail to see how the 
European  Commission  could have used its sales as a relevant benchmark. In fact, the only 
source of info rmation on the company's sales volume and price that RFPA points to, is 
the - non verified - response of the company to the sampling questionnaire660, which sets 
out the volume and value of two types of AN exported to the European  Union during the 
review pe riod. We also note the European Union's reference to the fact that these sales 
were incorporated in the database used to calculate an average price of Russian imports 
during the review period.  
7.419.   For these reasons, we reject Russia's claim  that the European  Union violated  Article  11.3 of 
the Anti -Dumping Agreement by declining to use the price of sales of AN from OJSC Kuybyshevazot 
and Kirovo as a relevant indicator of the likely evolution of Russian AN prices, should the measures 
lapse.  
 
658 Comments by RFPA on the definitive disclosure (8 July 2014), (Exhibit  RUS-79 (BCI)), p.  35 
(fn omitted). Russia also points to the Sampling questionnaire submitted by OJSC Kuybyshevazot , 
(Exhibit  RUS-86 (BCI)).  
659 European Union's fir st written submission, para.  470 (referring to Regulation  999/2014, 
(Exhibit  RUS-66), recital  62). 
660 Russia's first written submission, para.  943 and fn 880. See also Comments by RFPA on the definitive 
disclosure (8 July 2014), (Exhibit  RUS-79 (BCI)), fn 7 3. The sampling form itself is contained in Sampling 
questionnaire submitted by OJSC Kuybyshevazot , (Exhibit  RUS-86 (BCI)).  WT/DS494/R  
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  Whether the European authority violated  Article  11.3 of the Anti-Dumping  Agreement by 
not making adjustments to the export price of Russian AN to third countries  
7.420.   As a final argument in support of its claim, Russia argues that the comparison made by the 
investigating authority between Russian export prices to third countries and Union prices was not 
probative  because adjustments requested by representatives of Russian exporters (for ordinary 
customs duties, post -importation costs, differences in the product, packaging, and the level of trade) 
were not granted by the European  Commission .661  
7.421.   The European  Union responds that it was not obliged to make adjustments because it was 
not performing an undercutting calculation. 662 The European Union also argues that the Commission 
was unable to carry out any of the level of tra de adjustments claimed by RFPA during the 
investigation   given that the sampled companies, except for Acron, only partially cooperated and did 
not provide sufficiently detailed data, in particular transaction by transaction (including by product 
type) list ings.663 
7.422.   We note that there is evidence on the record that representatives of Russian 
producers/exporters requested certain adjustments. Recital 161 of Regulation  999/2014 indicates, 
for instance:  
RFPA claimed that the comparison between Russian export prices to third countries and 
the Union prices is meaningless, since a comparison should be made between sales to 
the same markets and with proper adjustments for duties, level  of trade, etc.  
7.423.   Further, RFPA's comments on the final disclosure indicate  that:  
EU and Russian prices should be compared at the same level of trade and logistical 
costs, including EU customs duties, are an important cost item that increases the 
delivered and comparable price for Russian imports.664 
7.424.   However, the evidence on the record does not demonstrate which adjustments were 
requested by the representatives of Russian exporters. In fact, the comments made by RFPA on the 
definitive disclosure665 refer to a request for adjustments for Russian export prices to the 
European  Union , rather than to Russian export prices to third countries:  
RFPA submits that in deciding on the prices under which additional exports from 
companies not subject to a price undertaking are likely to take place the Commission 
should rely on actual Russian pri ces as witnessed in the EU market, properly adjusted .666 
7.425.   We therefore agree with the European  Union that the record does not show "where, in the 
investigation, the interested parties would have made a request for adjustments" to the price of 
Russian exports  to third countries.667 There is therefore insufficient evidence on the record for us to 
make a finding of inconsistency with  Article  11.3 of the Anti -Dumping Agreement, as requested by 
Russia.  
Conclusion on claim  #5 
7.426.   In conclusion, w e recall that our task is not to undertake a de novo  review of the evidence 
or substitute our judgement for that of the investigating authority. Our task is to assess whether, in 
view of the evidence  on the record, the investigating authority conducted an objective examination 
based on positive evidence and therefore whether its likelihood -of-injury determination was 
 
661 Russia's first written submission, paras.  949-950. 
662 European Union's first written submission, para.  477; Regulation  999/2014, ( Exhibit  RUS-66), 
recital  114. 
663 European Union's second written submission, para. 155 . 
664 Comments by RFPA on the definitive disclosure (8  July 2014), (Exhibit  RUS-79 (BCI)), p.  32. 
665 Russia's second written submission, para.  1150; Comments by RFPA on the definitive disclosure 
(8 July 2014) , (Exhibit  RUS-79 (BCI)), p.  33. 
666 Comments by RFPA on the definitive disclosure (8  July 2014), (Exhibit  RUS-79 (BCI)), p.  33. 
(emphasis added)  
667 European Union's first written submission, para.  478; second written submission, para.  154. WT/DS494/R  
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  reasoned and adequate.  After carefully considering the elements on the record and the arguments 
of the parties, we therefore reject Russia 's claim #5 that the European  Commission 's determination 
of likelihood of recurrence of injury is inconsistent with  Article  11.3 of the Anti -Dumping Agreement  
for the reasons raised by Russia.   
Whether the European  Union erred  by basing its likelihood of recurrence of injury 
determination on incorrect or incomplete data ( claim  #6) 
Introduction  
7.427.   Under claim  #6, Russia further challenges – but for different reasons – the consistency of 
the European Union's determination of likelih ood of recurrence of injury with  Articles  3.1 and 11.3 
of the Anti -Dumping Agreement.  
7.428.   In addition, Russia identifies a violation of  Articles  3.4 and 4.1 of the 
Anti-Dumping  Agreement because the European  Union allegedly used data from a sample of 
domestic  producers which was not representative , and based its determination on an incomplete 
data set.668 Further, Russia complains that the investigating authority did not respond positively to 
the request made by representatives of Russian producers/exporters669 to explain 
"significantly  divergent economic performance between sampled and non -sampled producer s".670 
Russia cites in particular divergent data on costs, prices and profitability, which affected the 
European  Commission 's determinations regarding the level of the non -injurious price and the overall 
determination of likelihood of recurrence of injury.671  
Analysis  
7.429.   We recall that the provisions  of Article  3 which are applicable to injury determinations in 
original investigations, do not apply directly to expiry reviews. We have therefore decided to examine 
Russia's claims  on the basis of  Article  11.3 and Article  4, but not on the basis of  Article  3.672 
Our examination of Russia's claims  relating to the data used by the European  Commission  as a basis 
for its likelihood of recurrence of injury analysis will therefore focus on whether the 
authority's  determina tion was the result of an objective examination and whether it was based on 
positive evidence.  
7.7.3.5.2.1   Summary of the relevant facts  
7.430.   We start by  setting out our understanding of the European  Commission 's data collection in 
the context of the third expiry review.  We consider first how the product concerned and the like 
product are defined in the context of the third expiry review. We then turn to examine the data 
obtained by the European  Commission  from the domestic industry producing the like product.  
The product under consideration and the like product  
7.431.   We note first that the notice of initiation of the third expiry review defines the product 
concerned as:  
[S]olid fertilisers with an ammonium nitrate content exceeding 80% by weight, 
currently falling with in CN codes 3102 30 90, 3102 40 90, ex 3102 29 00, 
ex 3102 60 00, ex 3102 90 00, ex 3105 10 00, ex 3105 20 10, ex 3105 51 00, 
 
668 Russia's first written submission, paras.  966 and 975 -978. 
669 Russia's first written submission, para.  983; Comments by RFPA on the definitive disclosure 
(8 July 2014), ( Exhibit  RUS-79 (BCI)), pp. 20 -21 and 23 -25. 
670 Russia's first written submission, paras.  981-997. 
671 Russia's first written submission, paras.  988-990. 
672 Russia indicates that "[e]ven if the Panel finds that there are no violations of Articles  3.1, 3.4 or 4.1, 
Russia maintains that Claim #6 should nevertheless be considered … the EU did not carry a 'rigorous 
examination' and eventually did not draw 'reason ed and adequate conclusions' supported by 'positive evidence' 
and a 'sufficient factual basis', as required under Article  11.3 of the AD  Agreement." (Russia's response to 
Panel question No.  45, para. 215).  WT/DS494/R  
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  ex 3105 59 00 and ex 3105 90 91 and originating in Russia (the product under 
review).673  
7.432.   While Regulation  999/2014 defines the Uni on industry as "the known producers of AN in the 
Union during the period concerned"674, it also adds that the definition of the product concerned by 
the expiry review covers ammonium nitrate falling with in CN codes 3102 30 90 and 3102 40 90, 
which according  to Regulation  999/2014 "can include" AN used for industrial and agricultural 
purposes.675 The product concerned also covers stabili zed AN, except for AN originating from the 
Kirovo plant.676 With regard to the "like product " manufactured in the European Union, 
Regulation  999/2014 states that "the AN produced by the Union industry is a like product as regards 
physical and technical characteristics to the AN exported to the Union by Russia".677  
The data obtained by the European  Commission  from the domestic industry producing the 
like product  
7.433.   For the purpose of its examination of the "Economic Situation of the Union Industry"678, the 
European  Commission  selected a sample of four domestic producers (Ab Achema, Grupa Azoty 
Zaklady A zotowe, Grow How UK Limited  and Yara France) representing 42% of the Union production 
and 41% of the Union sales of the like product.679 All sampled producers responded to injury 
questionnaires and their answers were verified by the investigating authority.680 Although Russia 
argues that the sample "did not include producers of IGAN and Stabilized AN"681, we note that, in 
its submissions to the Panel, it indicates that " [t]he only two IGAN producers forming part of the 
EU domestic industry, namely Yara France and GrowHow, are sampled producers ."682 We thus 
understand Russia to argue that, although Yara France and GrowHow produce IGAN, their 
questionnaire response did not include data on industrial grade ammonium nitrate. This 
understanding is supported by statements made by the European  Union itself, which indicates that, 
"during the investigation" the investigating authority considered that "c ertain IGAN data was 
originally missing" from the responses obtained from these companies.683 The European  Union 
explains that it "made every reasonable effort to obtain all available and pertinent information", 
including by requesting "macro -data" covering the 28 Member States of the European Union, all 
known producers of the like product in the Union and data on agricultural and industrial grade 
ammonium nitrate. This information was, according to the European Union, provided by Fertilizers 
Europe in submissions made on 10 March684, 16 April685, and 12 May 2014.686 The European  Union 
indicates that the "macro" indicators reflected in Regulation  999/2014 are a "mixture" of the data 
received from the domestic industry in April (for data on production) an d May 2014 (for data on 
sales and production capacity).687 In this regard, the definitive disclosure indicates that:  
 
673 Notice of initiation, (Exhibit  RUS-48), section 2. 
674 Regulation  999/2014, (Exhibit  RUS-66), recital  98. 
675 Regulation  999/2014, (Exhibit  RUS-66), recital  46. 
676 Regulation  999/2014, (Exhibit  RUS-66), recital  44. 
677 Regulation  999/2014, (Exhibit  RUS-66), recital  50. 
678 Regulation  999/2014, (Exhibit  RUS-66), section 5.4.  
679 European Union's second written submission, para.  159. 
680 Regulation  999/2014, (Exhibit  RUS-66), recital  118. 
681 Russia's second written submission, para.  1154.  
682 Russia's first written submission, para.  966. See also, Russia's second written  submission, 
paras.  1157 (d) and 1159 for the case of Yara France and para.  1157 (e) for the case of GrowHow; response to 
Panel question No. 46, paras.  216-221. 
683 European Union's second written submission, para.  161. The European Union also provides in 
Exhibit EU-22 an exchange of emails dated 6 May 2014, between the investigating authority and GrowHow, in 
which the company confirms that its sales data in volume and value covers both agricultural and industrial AN.  
684 The European Union indicates that the 10 March 2014 submission contained data for only 14 known 
producers composing the Union industry. The European Union also indicates that this submission included 
"some IGAN data". (European Union's second written submission, para.  161).  
685 Dataset filed by the EU industry (16 April 2014), (Exhibit  RUS-84 (BCI)). This exhibit contains data 
provided by Fertilizers Europe on capacity, production and sales of the complainant for the EU28. The 
document lists 17 companies that provided data.  
686 European Union's se cond written submission, para.  161. See also European Union's response to 
Panel question No. 47, para.  138. 
687 European Union's second written submission, para.  162. We note that the Submission from Fertilizers 
Europe (12 May 2014), (Exhibit  RUS-83 (BCI)) c ontains injury indicators covering "total AN: Agricultural AN, 
technical AN and other types of AN" for the Union industry. These indicators include data on prices, costs and 
profits/losses for the Union industry.  WT/DS494/R  
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  For the purpose of the injury analysis, the economic situation of the Union industry is 
assessed on the basis of macroeconomic indicators ( production, production capacity, 
capacity utilisation, sales volume, market share, growth, employment, productivity, and 
recovery from past dumping) and microeconomic indicators (average unit prices, unit 
cost, labour costs, inventories, profitability, cas h flow, investments, return on 
investments, and ability to raise capital). The former are based on data contained in the 
request for review and from statistics and relate to all known Union producers. The 
latter are based on data contained in the questionn aire replies from the sampled Union 
producers and verified during the investigation.688 
7.434.   We thus understand that c ertain indicators were established at the level of the domestic 
industry as a whole, while other " micro " indicators were established on the basi s of the verified data 
of the sample, in which "certain IGAN data was originally missing" .689 The verified data of the sample 
was used by the investigating authority to establish the non -injurious price for the Union industry 
during the review period, as in dicated in the definitive disclosure:  
The Commission established the non -injurious price during the RIP for the Union 
industry by adding to the cost of production (established based on the verified data of 
the sampled Union producers set out in table 7 ab ove), plus SG&A and the target profit.  
 …  
On the basis of those figures, during the RIP the non -injurious price for the Union 
industry ranges between 257 EUR/tonne and 264 EUR/tonne.690 
7.435.   In turn, the non -injurious price served as a basis for the conclusion that:  
As the current price level of Russian imports currently under the price undertaking for 
one of the exporting producers corresponds to the upper end of the non -injurious price 
level, the Commission, on the basis of the information currently at its di sposal, considers 
that it is likely that those additional imports will take place at an injurious level. 
Notwithstanding the current profit level of the Union industry, such likely prices would 
put at risk the Union industry 's ability to achieve the normal  profit that it could expect 
to achieve in the absence of dumped imports.  
The investigation has also demonstrated that the current cost of production, and 
therefore the current non -injurious price is unlikely to decrease in the short term, given 
the trend  of increased cost of production during the period considered.691 
7.436.   We note that the representatives of Russian producers/exporters commented on the quality 
of the data collected by the European  Commission  and on the way this data was included in the 
analysis of the economic situation of the Union industry. In letters dated 14 March692 and 
25 April 2014693, RFPA noted that (i) none of the main producers of EGAN was in the list of known 
producers of the like p roduct and (ii) that Yara France and GrowHow (who produce both agricultural 
and industrial grade AN) did not report production, cost and sales data for EGAN. Further, in its 
comments on the definitive disclosure, RFPA stated inter alia  that:  
The profitabi lity of the sampled producers is … marked differently from the respective 
indicators of the supporters as provided by the Applicant on 12 May 2014 [.] 
… 
Given a significant difference in key indicators, RFPA believes that the sample is 
manifestly non -repres entative of the Union industry and that the findings regarding the 
 
688 Final disclosure, (Exhibit  RUS-78 (BCI)),  recital  74. 
689 European Union's second written submission, para.  161. 
690 Final disclosure, (Exhibit  RUS-78 (BCI)), recitals  110 and 112.  
691 Final disclosure, (Exhibit  RUS-78 (BCI)), recitals  114-115. 
692 RFPA submission (4 March 2014), (Exhibit  RUS-82 (BCI)), p. 3. 
693 RFPA submission (25 April 2014), (Exhibit  RUS-90 (BCI)), p.  4. WT/DS494/R  
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  costs, prices, and profitability should be established by reference to the Applicants ' data 
of 12 May 2014.694 
7.437.   We understand that the investigating authority requested and obtained (in the 12 May data 
set) "all relevant macro and micro indicators covering all known Union producers of the like 
product "695, as well as all types of AN composing the like product. Howeve r, it is clear on the face of 
Regulation  999/2014 that the injury indicators used by the investigating authority to examine the 
situation of the Union industry were established on the basis of verified data from the sample 
(for employment, productivity, sa les prices, labour costs, inventories, profitability, cash flow and 
return on investment)696 and on macro data received from Fertilizers Europe respectively in April 
(for data on production). Only sales and capacity appear to have been established on the ba sis of 
the complete dataset provided in May 2014 .697  
7.7.3.5.2.2   Evaluation by the Panel  
Whether the European  Commission 's determination is based on a non -representative 
sample of the Union industry  
7.438.   In the context of this claim, w e understand  Russia to argue that the sample chosen by the 
investigating authority was not representative of the domestic industry producing the like product 
because it was composed of companies producing only one type of AN. Consequently,  the data 
obtained from the s ample produced a result which was biased.  
7.439.   In view of the evidence on the record, we are not convinced that the sample chosen by the 
European  Commission  was not representative.  
7.440.   As stated in Regulation  999/2014, the European  Commission  selected the sample on the 
basis of the sales and production volumes of the like product during the review period and on the 
basis of geographical location within the European Union . The sample represented around 42% of 
the Union production and 41% of the Union sales. 698 Like the European Union699, we note that "when 
invited to comment on the selection of the sample, there was no interested party that commented 
on the selection of the sample to claim  that it was biased in light of the economic performance of 
the producers. Only  following disclosure, [did] the RFPA claim [] that the sample would not be 
representative because profitability would differ between sampled companies and the industry 
overall."700 In fact, in their initial comments on the selection of the sample, the repre sentatives of 
Russian producers/exporters did not raise the risk of distortion linked to the selection of producers 
of FGAN vs IGAN: RFPA criticized the methodology chosen to establish the sample (choice of a 
provisional sample, before initiation, on the b asis of letters of support for the complaint sent by the 
complainant; choice of a sample composed primarily of supporters of the complaint; limited period 
of time for requesting to be included in the sample) and the inclusion  of stabilized AN in the product 
concerned.701 In addition, we note that the evidence on the record shows that two of the sampled 
companies (Yara France and GrowHow) produce IGAN. It is therefore factually incorrect for Russia 
to state that the sample "was ab initio  deficient as it did not include EU producers of IGAN and 
stabilized AN."702 
Whether the European  Commission 's determination is based on a set of data which was 
incomplete and erroneous  
7.441.   Second , we consider that, based on the evidence on the record,  Russia has not made a 
prima  facie case that the determination of likelihood of recurrence of injury was based on an 
 
694 Comments by RFPA on the definitive disclosure (8  July 2014), (Exhibit  RUS-79 (BCI)), pp.  20-21.  
695 Fertilizers Europe's submission (12 May 2014) , (Exhibit  RUS-83 (BCI) ), p. 1.  
696 Regulation  999/2014, (Exhibit  RUS-66), tables 6, 7, 8, 9, and 10.  
697 European Union's second written submission, para.  162. Russia disagrees that the 
European  Union's  statement that the data provided on 12 May 2014 by Fertilizers Europe was used. 
(Russia' s second written submission, paras.  1170 and 1173).  
698 Regulation  999/2014, (Exhibit  RUS-66), recital  19.  
699 European Union's second written submission, para.  180. 
700 European Union's second written submission, paras.  180-181. 
701 Comments by RFPA on the initiation of an expiry review, (Exhibit  RUS-85 (BCI)), pp. 41 -45. 
702 Russia's second written submission, para.  1162.  WT/DS494/R  
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  erroneous/incomplete set of data provided by the sampled domestic producers.703 Russia's argument 
is twofold:  
a. that the questionnaire respon ses of sampled domestic producers did not include data on 
IGAN or stabilized AN;  
b. that, although the investigating authority requested data specifically on IGAN and 
stabilized AN during the review, "the EU nevertheless failed to establish and examine 
micro -indicators of the domestic industry (employment, productivity, sales prices, labour 
costs, inventories, profitability, cash flow, investments and return on investments) that 
would cover EU production of IGAN and Stabilized AN."704  
7.442.   The European  Union admits that "certain IGAN data was originally missing" from the 
responses obtained from these companies but argues that it subsequently requested and obtained 
this data. Further, the European  Union insists that the likelihood of recurrence of injury 
determ ination is based on the situation of the industry producing the like product (ammonium 
nitrate), "regardless of use".705  
7.443.   It is well established that "to ensure the accuracy of an injury determination, an investigating 
authority must not act so as to give r ise to a material risk of distortion in defining the domestic 
industry, for example, by excluding a whole category of producers of the like product ".706 
We consider that this basic principle is part and parcel of the requirement to base a determination 
on positive evidence and on an objective examination. We also consider that it is equally relevant in 
the context of an analysis of likelihood of recurrence of injury determination under  Article  11.3 of 
the Anti -Dumping Agreement.  
7.444.   In the present case, contrar y to what Russia argues, we do not consider that the 
European  Commission  "excluded a whole category of producers of the like product". As noted above, 
the evidence on the record shows that two producers of IGAN were included in the sample.707 
Similarly, we are not convinced by Russia's evidence that domestic producers systematically failed 
to report economic indicators related to IGAN and stabilized AN. We agree with Russia that, once 
the like product is defined, the investigating authority mu st ensure that sampled domestic producers 
report economic data related to all sales of the like product and do not omit any category. However, 
we do not treat the European Union's statement that "certain IGAN data was originally missing" as 
an admission th at no IGAN data was included in the questionnaire responses of the domestic 
industry.  
7.445.   In relation to Yara France, we note Russia's statement that "Yara did not provide a response 
for its Pardies plant solely manufacturing IGAN."708 This statement is suppor ted by evidence that 
Yara's response to the injury questionnaire contained data related to two of its plants (in Montoir 
and Ambes).709  
7.446.   However , we also note that the European  Union has provided evidence showing that:  
a. two producers of IGAN (GrowHow and Yara France) were included in the sample710; and 
 
703 Russia's first written submission, para.  978. 
704 Russia's second written submission, para.  1163.  
705 European Unio n's second written submission, paras.  163-164. 
706 Appellate Body Report, EC – Fasteners (China) , para.  414. 
707 Russia recognizes that "while some of the EU producers of IGAN formed part of the EU domestic 
industry, they did not submit data on the production and sales of IGAN." (Russia's first written submission, 
para. 966 (fn  omitted)). See also ibid. fn 909 which cites the producers of IGAN which are included in the 
domestic industry.  
708 Russia's first written submission, para.  966; RFPA submission (4 March 2 014), 
(Exhibit  RUS-82 (BCI)). See also Russia's response to Panel question No. 46.  
709 RFPA submission (4 March 2014), (Exhibit  RUS-82 (BCI)) , p. 3.  
710 Russia's first written submission, para.  966. WT/DS494/R  
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  b. GrowHow confirmed, when asked by the European  Commission , that its sales data 
included data on "all  … AN sales, whether straight fertilizer or industrial" .711 
Whether the European  Union failed to address the "significantly divergent economic 
performance between the sampled and non -sampled EU domestic producers " 
7.447.   We now turn to Russia's argument that the European  Union failed to address the 
"significantly divergent economic performance between the sa mpled and non -sampled 
European  Union domestic producers."712 Russia challenges in particular the gap in profitability 
between sampled producers representing 42% of the domestic industry's sales and the wider group 
of producers contained in the "May data set" representing 82% of the domestic industry's sales.713 
Russia considers that the investigating authority should have "objectively examined both datasets 
and then found how to reconcile them in such a manner as to reach reasoned conclusions in respect 
of profitability and costs in deciding whether material injury i s likely to recur in the event the 
anti-dumping measures were lifted ."714 Russia notes that " Regulation  999/2014 is silent on this 
matter".715 
7.448.   The European  Union responds that the injury indicators used by the investigating authority 
were "based on reliable data since the data of these sampled companies was verified at the premises 
of the companies."716 Further, since the investigating authority found that the Union industry was 
not in an injurious state during the investigation period, "a variation between un ion producers with 
respect to their economic performances would not have led to a different outcome of the analysis of 
the situation of the Union industry, i.e. not suffering material injury."717 
7.449.   We recall that t he right of investigating authorities to rely  on information provided by a 
properly constituted sample of the domestic industry in its examination, analysis and determination 
of injury has been recognized in previous WTO disputes .718 Similarly, the practice of using data 
obtained from the industry as a whole for macro -economic indicators and from a representative 
sample for micro -economic indicators has been found to be consistent with an objective examination 
based on positive evidence.719 We consider that an investigating authority does not have to es tablish 
an average profit margin for all producers composing the domestic industry if it has already done so 
for a representative sample of producers. We therefore disagree with Russia that conducting an 
objective examination of the profitability of Union producers would have required basing the 
likelihood -of-injury determination on data for the domestic industry defined as all EU producers of 
AN and "reconcile[ ing] it with the data of the sampled companies."720  
7.450.    For the foregoing reasons, we find that the European  Commission  did not base its 
likelihood -of-injury determination on data relating to a non -representative sample of the domestic 
industry and on incomplete/non representative and erroneous data provided by the sampled EU 
companies. We  also find that the European  Union was not required to examine and reconcile both 
datasets on profitability and costs in deciding whether material injury was likely to recur.  
Conclusion on claim  #6 
7.451.   In conclusion, w e recall that our task is not to undertake a de nov o review of the evidence 
or substitute our judgement for that of the investigating authority. Our task is to assess whether, in 
view of the evidence  on the record, the investigating authority conducted an objective examination 
based on positive evidence an d therefore whether its likelihood -of-injury determination was 
 
711 Email between the Commission and GrowHow , (Exhibit  EU-22). In its second written submission, 
Russia challenges the statement made by GrowHow and argues that "Annex B4 to the [[***]] questionnaire 
response that is discussed in the email shows that the data covers only sales of a product called [[***]], which 
is FGAN". (Russia's second written submission, para.  1167). However, this statement is not supported by any 
evidence on the record of this Panel.  
712 Russia's first written submission, paras.  981-997. 
713 Russia's first written submission, para. 991.  
714 Russia's fi rst written submission, para.  993. 
715 Russia's first written submission, para.  993. 
716 European Union's second written submission, para.  181. 
717 European Union's second written submission, para.  182. 
718 See e.g. Panel Report, EC – Fasteners (China) , para.  7.390. 
719 Panel Report, EC – Fasteners (China) , paras.  7.389 -7.392.  
720 Russia's first written submission, para.  995. WT/DS494/R  
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  reasoned and adequate.  Russia had the burden of proving that the European  Commission 's 
determination of likelihood of recurrence of injury was inconsistent with  Article  11.3 of the 
Anti-Dumping  Agreement because it was based on data from a non -representative sample; because 
it was based on incomplete, non -representative and erroneous data and because the authority failed 
to examine and explain the divergent economic performance between sampled a nd non -sampled EU 
producers. After carefully considering the elements on the record and the arguments of the parties, 
we conclude that Russia 's claim  #6 is not sufficiently supported by the evidence on the record, for 
the Panel to find a breach of  Articles  11.3 and 4.1 .  
Whether the European  Union violated  Article  11.3 of the 
Anti-Dumping  Agreement by concluding that the non -injurious situation of the domestic 
industry was not sustainable ( claim  #7) 
Introduction  
7.452.   Russia takes issue with a series of findings made by the European investigating authority in 
the course of the third expiry review. In particular, Russia challenges the finding, at recital 169 of 
Regulation  999/2014, that the non -injurious situation of the  domestic industry  was "not sustainable " 
because of the combination of three factors:  
a. a decreasing consumption in the EU;  
b. a projected decline in the business cycle and prices; and 
c. a stability or further increase in the cost of production.721  
7.453.   Russia consi ders that these factual findings are erroneous and that the authority disregarded 
certain relevant facts  on the record:  
a. evidence relating to the forecasted evolution of Union consumption722;  
b. evidence relating to the evolution of AN prices in the European Union723; and 
c. evidence relating to the price of gas.724  
7.454.   As a consequence, for Russia , the likelihood of recurrence of injury determination reached 
by the European investigating authority does not rest on a sufficient factual basis and is not based 
on positi ve evidence nor on an objective examination.725 
7.455.   We recall that  Article  11.3 of the Anti -Dumping Agreement requires a "reasoned conclusion 
on the basis of information gathered as part of a process of reconsideration and examination" by an 
investigating authority. Moreover, a sunset review determination under  Article  11.3 must be made 
on the basis of a "rigorous examination"  leading to 'reasoned and adequate conclusions ', and be 
supported by 'positive evidence ' and a 'sufficient factual basi s'".726 In keeping with the standard of 
review under  Article  11.3 of the Anti -Dumping Agreement we will consider below whether the 
evidence on the record supports the factual findings reached by the European  Commission  and 
whether these factual findings sup port the overall determination that the non -injurious state of the 
industry was not -sustainable.  
 
721 Russia's first written submission, para.  1001.  
722 Russia's first written submission, para.  1003.  
723 Russia's first written submission, para.  1006.  
724 Russia's first written submission, para.  1009.  
725 Russia's first written submission, para.  999. 
726 Appellate Body Report, US – Zeroing (Japan) , para.  182 (quoting Appellate Body Report, 
US – Corrosion -Resista nt Steel Sunset Review , paras.  113-114).  WT/DS494/R  
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Analysis  
7.7.3.6.2.1   Whether the authority failed to consider evidence on the record relating to 
the evolution of Union consumption  
7.456.   With regard to Union consumption , Russ ia argues that the representatives of Russian 
producers/exporters (RFPA) provided the investigating authority with  a forecast that consumption 
in the European  Union was likely to increase by 10% by 2017. Russia further refers to data provided 
by the EU domestic industry showing that increased consumption in Central Europe balanced the 
decline in consumption in the EU15 zone. 727  
7.457.   We note that i n the final disclosure, the European  Commission  evaluated the Union 
consumption during the review period on the basis of sales data provided by the domestic industry 
and import data for the product concerned. The European  Commission  came to the conclusion that:  
Between 2010 and the RIP, the Union cons umption of AN decreased by 11%, 
notwithstanding the fact that the production of agricultural product did not decrease 
correspondingly. There seem to be two main reasons for such a decrease. First of all, 
spreading equipment and techniques have improved and  as a consequence a lesser 
quantity of fertilisers is needed per square metre of land. Secondly, the decrease in AN 
consumption is compensated by the use of other fertilisers such as calcium ammonium 
nitrate or compound fertilisers.728 
7.458.   In Regulation  999/2014, the European  Commission  responded to RFPA's  comments, and 
addressed in particular the content of the CRU report , stating that "the report referred to by RFPA 
suggests a marginal recovery of nitrogen fertilisers' demand and not necessar ily an increase of 
consumption of the product concerned"729.  
7.459.   Contrary to what Russia argues730, we are of the view that the investigating authority did 
not "fail[] to take into account a number of relevant facts"731 and did not limit itself to an evaluation 
of the situation during  the period of review, but made a forward -looking assessment based on the 
following facts:  
a. the increasingly  stringent environmental and safety requirements that apply to the storage 
and use of AN;  
b. the level of maturity reached by c ertain markets; and 
c. the more effective spreading techniques.  
7.460.   The European  Commission  concluded that "even in case of an increase in fertiliser 
consumption, and particularly of nitrogen fertiliser consumption, the consumption of the product 
concerned will not increase in the foreseeable future."732 
7.461.   For these reasons, we are not convinced by Russia's argument that the authority failed to 
consider evidence on the record regarding domestic consumption.  
7.7.3.6.2.2   Whether the authority failed to consider evidence on the re cord relating to 
the evolution of prices of AN in the European Union  
7.462.   With regard to the evolution of prices in the European Union , Russia argues that, in its 
comments on the definitive disclosure, RFPA provided evidence that EU prices were expected to 
 
727 Russia's first written submission, para.  1005; second written submission, paras.  1201-1205. 
The "CRU report".  
728 Final disclosure, (Exhibit  RUS-78 (BCI)), recital  68. 
729 Regulation  999/2014, (Exhibit  RUS-66), recit al 151. 
730 Russia's second written submission, para.  1199.  
731 Russia's first written submission, para.  1002.  
732 Regulation  999/2014, (Exhibit  RUS-66), recital  151. WT/DS494/R  
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  remain at the same level as during the review period until 2019.733 Russia also argues that the 
authority "relied solely and exclusively on a market analysis provided by the applicant, which 
allegedly showed that 'price levels of the product concerned [were ] expected to decrease in the next 
two years'".734  
7.463.   The European  Union responds  that the authority considered, "based on the market analysis 
provided by the applicant that , after having risen steadily every year since 2009, prices appeared to 
go down."735 In this regard, t he final disclosure states:  
[A]ccording to market analysis provided by the complainant the AN market prices have 
now reached their peak and the top of the business cycle. The business cycle, as well 
as prices, are now projected to decline.736 
7.464.   The final disclosure also indicates that:  
Given the prospective nature of the analysis of the likelihood of recurrence of injury, 
the Commission will carefully examine substantiated comments received following this 
disclosure, in particular regarding the  likely development of prices in the absence of 
measures and the likely development of cost of production.737 
7.465.   Regulation  999/2014  shows that  the European  Commission  considered  RFPA's comments on 
the definitive disclosure.738 It states however, that "the pros pective nature of an expiry review makes 
it difficult to draw exact conclusions on projections about price levels in 2017 and beyond." The 
investigating authority thus decided to rely on "independent market analysis" indicating that " the 
price levels of th e product concerned [were] expected to decrease in the next two years".739  
7.466.   It thus appears from Regulation  999/2014 that the authority based its  finding  regarding the 
likely evolution of prices on the forecast provided by the applicant and built on price d ata provided 
by an independent consultant (ICIS). The graph provided by the applicant covers the 
period  2009-2014 and shows a decline in the price of AN over the period 2012 -2014, i.e. right after 
the review period (1 July 2012 to 30 June 2013). Our unders tanding is therefore that the 
European  Commission  relied primarily on a price forecast for the period  following immediately the 
review period, which indicated that the peak of business cycle for AN had been reached in 2012 . We 
also note that the applicant provided another table " Price correlation between Urea and AN", which 
shows a decline in the price of AN until 2017.740  
7.467.   We have already noted that there was evidence on the record showing that the authority 
had considered RFPA's comments but had decided to rely on information provided by the applicant. 
Although Russia argues that RFPA provided evidence that EU prices were e xpected to remain at the 
same level as during the review period until 2019 , we fail to identify this evidence in 
RFPA's  comments on the definitive disclosure. In fact, RFPA's comments did not contradict the price 
information provided by the applicant: rather , RFPA criticized the data provided by the applicant but 
did not provide any conflicting price forecast. Instead RFPA asked the authority to "take a longer 
perspective".741 In particular,  RFPA did not contest the price data provided by the applicant but noted 
that, beyond the period 2012 -2014, " AN prices in 2020 will be pretty much the same as they are 
now".742 Looking at the period preceding the review period in the third expiry review, RF PA also 
 
733 Russia's first written submission, para.  1006 and fns 935 -936 (referring to Comments by RFPA on 
the definitive disclosure (8  July 2014),  (Exhibit  RUS-79 (BCI) ), pp. 37 -42). 
734 Russia's second written submission, paras.  1207 and 1213.  
735 European Union's fir st written submission, para.  518. The diagram on price forecast for AN is 
contained in AN Russia Sunset: Summary of EU producers' facts and arguments (5 June 2014), ( Exhibit  EU-7), 
p. 15. The source indicated for the price forecast is an independent consul tant (ICIS).  
736 Final disclosure, (Exhibit  RUS-78 (BCI)), recital  119.  
737 Final disclosure, (Exhibit  RUS-78 (BCI)), recital  116.  
738 Regulation  999/2014, (Exhibit  RUS-66), recital  170. 
739 Regulation  999/2014, (Exhibit  RUS-66), recital  171. 
740 AN Russia Sunset : Summary of EU producers' facts and arguments (5 June 2014), (Exhibit  EU-7), 
p. 16 (Fertecon price Forecast).  
741 Comments by RFPA on the definitive disclosure (8  July 2014), (Exhibit  RUS-79 (BCI)), p.  39. 
742 Comments by RFPA on the definitive disclosure (8  July 2014), (Exhibit  RUS-79 (BCI)), p.  39. WT/DS494/R  
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  noted that "a decline of urea prices to USD 275 in 2017 -2018 is nothing compared to where the 
prices were in 2000".743  
7.468.   We thus find that the investigating authority did consider the evidence presented by 
Russian  exporters but that this evidence doe s not contradict the evidence provided by the applicant 
which was eventually relied upon by the European  Commission . In view of the evidence on the 
record, we do not think that in doing so, the authority was not objective or failed to base its 
conclusion o n positive evidence.  
7.7.3.6.2.3   Whether the authority failed to consider evidence on the record relating to 
the evolution of gas prices  
7.469.   With regard to gas prices , Russia argues that the investigating authority "disregarded" 
"uncontested evidence" that gas prices wer e "in a rapid decline"744 and instead relied on "a single 
statement in an economic study submitted by the farmers' associations that 'natural gas prices in 
the Union … are expected to rise in the foreseeable future'".745 In particular, Russia considers that 
the European  Commission  should have taken into account information provided by RFPA in a 
submission dated 12 June 2014 and in its comments on the final disclosure (an extract from 
Yara's  quarterly report showing "Yara European gas and oil cost").746  
7.470.   We note that the final disclosure contains only a few references to the evolution of the price 
of gas:  
a. First, in relation to the evolution of the cost of production of the sampled producers, table 7 
sets out the verified cost of production per unit and in dicates that "[t]he average costs of 
production increased, too, mainly due to the increase in the costs of gas which is the major 
input."747 
b. Second, the European  Commission  notes that "there are no indications on the file that the 
price of the main input of  Union producers, that is gas, will significantly reduce within the 
next one to two years".748  
7.471.   Regulation  999/2014 shows that the European  Commission  addressed the evidence on the 
record , even  when it  contradicted its own finding. In particular, the invest igating authority stated 
that:  
As regards the decrease in the costs of gas announced by Yara international, this is a 
case apart because the Yara group is a multinational group with access to several 
sources of cheap gas outside the Union. Other producers  of the product concerned, and 
notably those located in the Eastern regions of the Union, rely on Russian gas. 
Therefore, the Commission still considers that there is no convincing evidence that the 
gas prices for the Union producers will significantly dec rease in the near future.749 
7.472.   We therefore disagree that the European  Commission  "disregarded uncontested evidence": 
we find on the contrary that the European  Commission  considered the evidence on the record 
showing a decline in gas prices but considered tha t the situation of Yara was not representative of 
the situation of other producers. In view of the evidence on the record, we are not convinced by 
Russia's argument that the authority's finding regarding the evolution of gas prices was not based 
on positiv e evidence or an objective examination.  
 
743 Comments by RFPA on the definitive disclosure (8  July 2014), (Exhibit  RUS-79 (BCI)), p.  40. 
744 Russia's first written submission, para.  1009; second written submission, paras.  1216-1219.  
745 Russia's second writte n submission, para.  1214.  
746 Comments by RFPA on the definitive disclosure (8  July 2014), (Exhibit  RUS-79 (BCI)), pp.  42-43. 
747 Final disclosure, (Exhibit  RUS-78 (BCI)), recital  88. 
748 Final disclosure, (Exhibit  RUS-78 (BCI)), recital  115. 
749 Regulation  999/20 14, (Exhibit  RUS-66), recital  165.  WT/DS494/R  
BCI deleted, as indicated  [[***]] 
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  7.7.3.6.2.4   Whether the authority failed to consider other evidence on the record  
7.473.   Finally , Russia points to a series of additional facts, allegedly presented by RFPA, in support 
of its claim  that the EU domestic industry's non -injurious situation "[was]  sustainable"750:  
a. the export  competitiveness of EU producers751;  
b. the evolution of the profit margin of the industry752; and 
c. the diversion of trade flows and the attractiveness of the EU market.753  
7.474.   We thus examine whether, as submitted by Russia, the evidence provided by RFPA was 
"disregarded" by the investigating authority and whether this affec ted the objectiveness of the 
examination conducted by the European  Commission .754  
7.475.   With regard to the European  Commission 's alleged failure to examine evidence showing that 
EU exports successfully competed with Russian -origin AN in third country markets, we note that, in 
its comments on the definitive disclosure, RFPA claimed that the "e xport performance of the Union 
industry demonstrates that it can successfully compete with Russian AN".755 RFPA provide d 
information on export volumes and prices over the period 2009 -2013 and conclude d that:  
This shows that the EU producers compete well wi th Russian and other third country 
producers in third countries market. There is no reason why, when the measures are 
repealed, EU producers cannot compete successfully with the Russian producers in its 
home market.  
7.476.   Russia also points to the request for re view lodged by the applicant, which allegedly shows 
that " Russian imports in third countries were undercut by EU imports. For instance in Brazil, Russian 
imports were more expensive than imports from the Netherlands or Lithuania ".756  
7.477.   The European Union res ponds that it actually considered and addressed in 
Regulation  999/2014 the comments made by RFPA on this issue757, by noting that "the current 
positive economic situation of the Union industry, including its volume of export sales to third 
countries, does n ot automatically preclude that the situation may change in the future if the 
measures in force are allowed to lapse".758  
7.478.   While the European  Commission  could have been more explicit in its response, we are of the 
view that this reference to RFPA's comments shows that the investigating authority did consider the 
export performance of the EU industry.  
7.479.   With regard to the European  Commission 's finding that Russian exports would enter the 
Union market at an injurious level, thereby negatively affecting industry profit margins, Russia 
argues that:  
[T]he EU's statement that imports from Russia "will take place at injurious level" is 
totally unreasoned. There is no evidence on the record substantiating that target 
imports indeed will cause reduction of the EU domes tic industry's profit margin below 
8% target profit .759 
 
750 Russia's first written submission, para.  1015.  
751 Russia's first written submission, para.  1010 and fn 942.  
752 Russia's first written submission, para.  1011.  
753 Russia's first written submission, paras.  1012-1013.  
754 Russia's first written submission, para.  1018.  
755 Comments by RFPA on the definitive disclosure (8  July 2014), (Exhibit  RUS-79 (BCI)), p.  31. 
756 Russia's second written submission, para.  1220 (referrin g to Page 85 of Annex B, Dumping of the 
request , (Exhibit  RUS-99 (BCI))).  
757 European Union's second written submission, para.  189. 
758 Regulation  999/2014, (Exhibit  RUS-66), recital  147. 
759 Russia's first written submission, para.  1011.  WT/DS494/R  
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  7.480.   We disagree with Russia that the European  Commission  has not explained its conclusion with 
regard to the injurious price level of Russian imports and its impact on the profit margin of the 
industry. In  fact, in Regulation  999/2014, the European  Commission  noted that "notwithstanding 
the current profit level of the Union industry, such likely prices would put at risk the Union 
industry's  ability to achieve the normal profit that it could expect to achiev e in the absence of 
dumped imports."760 The European  Commission  added that "the current cost of production and 
therefore the current non -injurious price is unlikely to decrease in the short term, given the trend of 
increased cost of production during the pe riod considered."761 Further, we note that the conclusion 
of the authority on the level of the injurious price was based inter alia  on the difference between the 
export price of Russian exports to third countries and the price of domestic sales of the like product 
on the Union market during the review period. Since both prices were based on verified data provided 
by Russian and domest ic producers of AN762, we cannot agree with Russia's arguments that " [t]his 
finding is … absolutely not grounded in facts."763 
7.481.   Finally, with regard to the attractiveness of the EU market, Russia argues that the 
European  Union exaggerates the attractiveness o f the Union market for two main reasons: first , 
because Russian exporters are not using up the duty free imports volumes provided for under the 
price undertakings currently in place and, second, because of the competitive advantage given to 
Union producers  by a 6.5% regular customs duty.764 We cannot agree with Russia that the conclusion 
reached by the European  Commission  with regard to the attractiveness of the Union market is not 
based on positive evidence. The evidence on the record shows that the Commiss ion's conclusion is, 
in fact, based on the following elements:  
i. the price level on the Union market compared to third country markets765;  
ii. existing limits to Russian exports to third countries766; and 
iii. the geographical proximity of the Union market to Russia and the existence of 
well-established distribution channels .767  
7.482.   Our examination of the European  Commission 's factual findings regarding the attractiveness 
of the Union market thus leads us to the conclusion that the authority had enough evidence on the 
record to find that, should the measures lapse, the Union market would be an attractive destination 
for Russian exports of AN.  
Conclusion on Russia's claim  #7 
7.483.   In conclusion, w e recall that our task is not to undertake a de novo  review of the evidence 
or substitute our judgement for that of the investigating authority. Our task is to assess whether, in 
view of the evidence  on the record, the investigating authority conducted an objective examination 
based on positive evidence and  therefore whether its likelihood -of-injury determination was 
reasoned and adequate. After carefully considering the elements on the record and the arguments 
of the parties, we therefore reject Russia's claim  #7 that the European  Commission 's determination  
of likelihood of recurrence of injury is inconsistent with  Article  11.3 of the Anti -Dumping Agreement 
because the investigating authority concluded that there were no indications on the record that the 
non-injurious situation of the EU domestic industry w ould be sustainable.  
 
760 Regulation  999/2014, (Exhibit  RUS-66), recital  160. 
761 Regulation  999/2014, (Exhibit  RUS-66), recital  163. 
762 Regulation  999/2014, (Exhibit  RUS-66), recital  58: "[t]his finding was based on verified data 
provided by Russian exporting producers, which accounted for around 80% of the exports to third countries. … 
The export sales of all four sampled exporting producers to third countries were made at a sustainable price 
level during the RIP."  
763 Russia's second w ritten submission, para.  1221.  
764 Russia's second written submission, paras.  1227-1228. See also Comments by RFPA on the definitive 
disclosure (8  July 2014), ( Exhibit  RUS-79 (BCI)), p.  26. 
765 Regulation  999/2014, (Exhibit  RUS-66), recital  153. 
766 Regulation  999/2014, (Exhibit  RUS-66), recital  154. 
767 Regulation  999/2014, (Exhibit  RUS-66), recital  155. WT/DS494/R  
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Whether the European Union's findings with regard to spare capacities and 
demand in third country markets violate Article 11.3 of the Anti -Dumping Agreement 
(claim  #8) 
Introduction  
7.484.   Russia makes a series of claims  on the basis of  Articles 3.1 and 11.3 of the 
Anti-Dumping  Agreement, relating to the way the European  Union calculated the spare capacity of 
Russian producers768 and assessed the ability of third country markets to absorb this spare 
capacity.769 In particular, Russia criticizes the fact that, for some Russian producers, the 
European  Commission  used nameplate capacities, while for others, it referred to actual production 
figures.  
7.485.   The European  Union responds that it used a different methodology whenever there was a 
discrepancy bet ween the nameplate capacity and the actual level of production.770 As far as the 
absorption capacity of third countries is concerned, the European  Union responds that whatever 
methodology is used, the additional demand likely to occur in third markets was, at the time of the 
review and beyond, just a fraction of the spare capacity available in Russia.771  
Analysis  
7.7.3.7.2.1   The European  Commission 's assessment of spare capacity  
7.486.   With regard to spare capacity, we are not convinced by the arguments presented by Russia. 
In particular, we disagree with Russia's statement that "the fact that production exceeds nameplate 
capacity cannot be deemed a sufficient factor to increase the capacity of Russian exporters."772  
7.487.   We note that the purpose of the European  Commission 's evaluat ion of the production 
capacity of Russian producers is to determine the volume of AN which could be exported to the Union 
market should the measures lapse.773 For this evaluation, the actual  production capacity of the plants 
producing the product concerned or able to produce the product concerned is the relevant indicator . 
While nameplate capacity is in principle an important piece of evidence of any investigation,  we find 
it reasonable for a n investigating authority that notes a gap between the theoretical capacity and 
the actual capacity to use the figure which is the most relevant to its analysis.  
7.488.   Russia further argues that nameplate capacity is the international standard for the evaluatio n 
of the production capacity in the industry .774 We are of the view  that, while this standard might be 
relevant for international comparisons of installed capacities, it is not necessarily relevant in the 
context of a likelihood of recurrence of injury anal ysis: for this purpose, considering the actual, 
verified, maximum capacity is a reasonable approach.  
7.489.   We also disagree that the European  Commission  used different  benchmark s for assessing 
the production capacity of Russian producers and for assessing the p roduction capacity of 
EU producers. The evidence on the record shows that the investigating authority collected data on 
the nameplate capacity of EU and Russian producers but relied on actual production capacity 
whenever it was higher than the theoretical capacity.  We see  no indication on the record that the 
investigating authority noted a gap between the nameplate capacity and the actual capacity of 
domestic producers.  
7.490.   Finally, Russia makes an additional argument regarding the capacity expansion of a Russ ian 
producer (Euro Chem NAK).775 The parties disagree on the volume of increased capacity that this 
expansion would produce. The European  Union refers to a document provided by the company during 
 
768 Russia's first written submission, paras.  1033-1050.  
769 Russia's first written submission, paras.  1051-1066.  
770 European Union's first written submission, para.  537. 
771 European Union's first written submission, para.  548. 
772 Russia's first written submission, para.  1037.  
773 Regulation 999/2014, (Exhibit  RUS-66), recitals 84 and 94.  
774 Russia's first written submission, para.  1040.  
775 Russia's first written submission,  para. 1048 (referring to Annex VI of the Comments by RFPA on the 
definitive disclosure (8  July 2014) , (Exhibit  RUS-79 (BCI))).  WT/DS494/R  
BCI deleted, as indicated [[***]] 
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  the verification visit, which indicates that: "the capacity of  the ammonium nitrate production facility 
is [[***]] tpd ( [[***]] ktpa) presented as 100% ammonium nitrate."776 Russia refers to 
RFPA's  comments on the final disclosure777, which states that although the reported capacity is 
[[***]] ktpa, only a fraction of this capacity is used for the production of prilled AN.  
7.491.   Having considered the evidence on the record (the document obtained by the 
European  Commission  during the investigation and RFPA's comments after the definitive disclosure), 
we are unable to understand how the investigating authority could have concluded from the 
documentation obtained that the capacity expansion was [[***]] ktpa instead of [[***]] ktpa. 
Further, s ince the European  Commission  based its factual finding on a document provided by the 
investigated company, which presented the expansion of [[***]] ktpa as 100% ammonium nitrate, 
we cannot agree with Russia that the conc lusion reached by the authority was not objective and 
based on positive evidence.  
7.492.   For the foregoing reasons, we disagree with Russia that the European Union's  findings on 
the actual production capacity of Russian exporting producers and on the spare capac ity in the 
Russian Federation are "not based on an objective examination of positive evidence on the 
record".778 
7.7.3.7.2.2   The European  Commission 's assessment of the capacity of absorption of 
Russian exports by third countries  
7.493.   Second, with regard to the capacity of third markets to absorb Russian exports of AN, we 
recall the findings reached by the European  Commission  in the definitive disclosure:  
a. The European  Commission  noted first that "some of the largest export markets for AN in 
the world … remain protected by a nti-dumping measures from Russian exports" and "the 
Chinese market continues to be closed to imports of AN. Therefore, Russian producers are 
unlikely or unable to export to those markets".779  
b. It then noted that the projected consumption in Latin America wa s at a level which "would 
only allow for the partial absorption of the Russian producers' spare capacity" .780 
c. With regard to Russian domestic consumption, the final disclosure noted that "during the 
RIP domestic sales were 53% of the total sales of the Russ ian producers and the projected 
increase by 3% each year for the next 5 years (on average approximately 120 000 tonnes 
per year) could be easily covered by the spare capacity the Russian producers already 
have at their disposal. The projected yearly increa se constitutes less than 7% of the 
estimated yearly spare capacity of the Russian producers after the RIP".781 
7.494.   We found  that the evaluation of the Russian producers ' production capacity for AN was 
objective and based on positive evidence. In view of the evi dence in the definitive disclosure , we 
also find that the European  Commission 's conclusion – that third markets would only absorb a 
fraction of Russia's spare capacity – was based on positive evidence and supports the determination 
that:  
[T]he Russian pro ducers dispose of significant spare capacity which is very likely to be 
used for substantial additional exports to the Union, should the measures lapse.782 
 
776 Business plan of the investment project for NAK Azot , (Exhibit  EU-9 (BCI) (English translation)), 
p. 13.  
777 "The capacity of the prilled AN part of the project as is explicitly stated in the documents provided 
amounts to [[***]]". Russia's first written submission, para.  1048, and fn 983 (referring to Comments by RFPA 
on the definitive disclosure (8  July 2014), ( Exhibit  RUS-79 (BCI)), pp. 50 -51: "Allegations Regarding a Further 
Major Increase of Capacity Are Incorrect."  
778 Russia's first written submission, para.  1047.  
779 Final disclosure, (Exhibit  RUS-78 (BCI)), recital  55. 
780 Final disclosure, (Exhibit  RUS-78 (BCI)), recital  57. 
781 Final disclosure, (Exhibit  RUS-78 (BCI)), recital  58. 
782 Final disclosure, (Exhibit  RUS-78 (BCI)), recital  60. WT/DS494/R  
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Conclusion on claim  #8 
7.495.   In conclusion, w e recall that our task is not to undertake a de novo  review of the evidence 
or substitute our judgement for that of the investigating authority. Our task is to assess whether, in 
view of the evidence  on the record, the investigating authority conducted an objective examination 
based on positive evidence and  therefore whether its likelihood -of-injury determination was 
reasoned and adequate. After carefully considering the elements on the record and the arguments 
of the parties, we reject Russia 's claim  #8 that the European  Commission 's determination of 
likelihood of recurrence of injury is inconsistent with  Article  11.3 of the Anti -Dumping Agreement 
because the likelihood of recurrence of injury determination was not based on positive evidence and 
an objective examination of the level of production capacity av ailable in Russia and of the capacity 
of absorption of Russian exports by third country markets.  
Claims with respect to the determination of the likelihood of recurrence of dumping 
(claims  #9 and #11)  
Introduction  
7.496.   Russia makes a series of claims  regarding  the likelihood of recurrence of dumping 
determination made by the European  Commission  in the third expiry review on ammonium nitrate. 
According to Russia, the analysis and the determination reached by the European  Commission  are 
inconsistent with  Article  11.3 and various provisions of  Articles  2 and 6 of the 
Anti-Dumping  Agreement. Russia has confirmed that claims  #9 and #11 concern 
Regulation  999/2014 only.783 
7.497.   We recall that we have decided to examine claims  #3 and #4 as part of the series of 
claims  concerning the likelihood of recurrence of dumping.784  
Summary of the relevant facts  
7.498.   The record indicates that the determination of likelihood of recurrence of dumping reached 
by the European  Commission  relied on t hree stated factors:  
a. the export price of AN from Russia to third countries : the EU authorities found that all 
sampled exporters sold at dumped prices to third country markets such as Brazil, 
Colombia, Peru, Ukraine, and Kazakhstan785;  
b. the production capacity and spare capacity for AN in Russia . The EU authorities concluded 
that, should the measures lapse, the Russian producers had significant spare capacity 
likely to be exported to the European Union, because of the geographical proximity of the 
EU market to Russia and the well -established distribution channels in the European Un ion; 
the inability of the Russian market to absorb the spare capacity; and the fact that some 
of the potentially largest export markets for AN (such as the U nited States and Australia) 
remained protected by anti -dumping measures from Russian exports786; and   
c. the attractiveness of the Union market and other third markets : based on a comparison 
of the price of sale of the product concerned on the Union market with the price of sale on 
third country markets, the EU authorities concluded that the EU market was a ttractive for 
Russian AN exporters.787  
7.499.   In light of these factors, the EU authorities concluded that there was a likelihood of 
recurrence of dumping and of substantial increase of the quantities exported to the Union,  should 
the measures lapse.788 
 
783 Russia's response to Panel question No. 35, para.  179. 
784 See para.  7.297  above.  
785 Regulation  999/2014, (Exhibit  RUS-66), recitals  57-58. 
786 Regulation  999/2014, (Exhibit  RUS-66), recitals  85 and 91 -92. 
787 Regulation  999/2014, (Exhibit  RUS-66), recital  93. 
788 Regulation  999/2014, (Exhibit  RUS-66), recital  97. WT/DS494/R  
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  7.500.   With regard to the first factor (the export price  of AN from Russia to third countries), the 
record indicates that although these export prices were found to be "dumped" (the weighted average 
export price being lower than the weighted average price on the domestic market)789, the European 
authority did no t make dumping calculations for these sales. Instead, the European  Commission  
indicates that it "simply compared average ex -works domestic prices with ex -works export prices 
based on data reported by the sampled companies."790  
Russia's claims  #9 and #11  
7.501.   Russia challenges the likelihood of recurrence of dumping determination by making the 
following claims:  
7.502.   First ( claim  #9), Russia argues that whenever an investigating authority establishes 
dumping margins as part of its likelihood analysis, it must ensure t hat the dumping margins are 
calculated in accordance with  Article  2 of the Anti -Dumping Agreement.791 If determinations related 
to dumping are not consistent with the provisions of  Article  2, this leads to a violation of both  
Article  2 and  Article  11.3 of t he Anti -Dumping Agreement. According to Russia, the EU determination 
is in breach of:  
a. Article 2.1 of the Anti -Dumping Agreement, because the investigating authority carried 
out dumping calculations on the sole basis of a comparison between domestic prices and 
export prices to third countries, while rejecting the data on export prices to the EU 
provided by Russian exporters; and Article 2.3 of the Anti -Dumping Agreement, because 
investigating authorities disregarded export prices for the purpose of a dumping  margin 
calculation for the reason that such export prices are being charged at the time of a price 
undertaking792; 
b. Article  6.8 of the Anti -Dumping Agreement because the authority rejected the export 
prices of a producer (EuroChem), on the basis of the company's partial non -cooperation. 
Russia argues that since EuroChem provided the European  Union with data on EU and 
other markets sales and a transaction -by-transaction report in the context of a price 
undertaking, the European  Union could not rely on  Article 6.8 to disregard 
EuroChem's  prices793;  
c. Article  6.10 of the Anti -Dumping Agreement because the European  Union did not 
determine individual dumping margins for the Russian sampled producers794; and 
d. Article  11.3 of the Anti -Dumping Agreement because the European  Union failed to 
examine the impact of the absence of dumping by the largest Russian exporters during 
the RIP when making a likelihood of recurrence of dumping determination.795 
7.503.   Second ( claim #11), Russia submits that the European  Union violated  Articles 11.3, 2.1, 2.2 , 
and 2.4 of the Anti -Dumping Agreement, as well as  Article  VI:1 of the GATT  1994 by making an 
affirmative determination of likelihood of recurrence of dumping on the basis of alleged "dumping" 
without conducting proper dumping margin ca lculations.796 According to Russia, s ince the 
European  Union did not compare the normal value of the like product with the export price of the 
product under consideration supplied to the European  Union (but, instead, to third countries), it 
violated  Articles  2.1, 2.2 and , consequently,  Article  11.3 of the Anti -Dumping Agreement and 
Article  VI:1 of the GATT .797 Additionally, Russia argues that t he EU authorities did not conduct a fair 
comparison between the export price to the European  Union and the no rmal value, as required by  
 
789 Regulation  999/2014, (Exhibit  RUS-66), recitals  57-58. 
790 Regulation  999/2014, (Exhibit  RUS-66), recital  60. 
791 Russia's first written submission, para.  667. 
792 Russia's first written submission, paras.  695-696. See also Determination of dumping margins for 
exports to the E uropean Union, (Exhibit  RUS-125 (BCI)).  
793 Russia's first written submission, para. 700.  
794 Russia's first written submission, para. 702.  
795 Russia's first written submission, para. 703. 
796 Russia's first written submission, para. 709.  
797 Russia's first written submission, para.  734.  WT/DS494/R  
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  Article  2.4 of the Anti -Dumping Agreement. As a result, the European  Union allegedly  violated  
Article  2.4 and , consequently,  Article  11.3 and of the Anti -Dumping Agreement.798 
7.504.   We note, in this regard, that the parties disagree on the legal standard to be applied by the 
Panel to its examination of the European Union's determination of likelihood of recurrence of 
dumping. While Russia's main claims  relate to the alleged inconsiste ncy of the 
European  authority's  dumping calculation with  Article  2 of the Anti -Dumping Agreement, and, as a 
consequence , to the inconsistency of the likelihood determination with  Article  11.3, the 
European  Union asks us to limit our findings to  Article  11.3.799 We first examine the question of the 
legal standard applicable to our evaluation of Russia's claim  on the EU's likelihood of recurrence of 
dumping determination, before turning to the individual claims  made by Russia in this dispute.  
The relevant leg al standard for the Panel's examination of Russia's claims  #9 
and #11  
7.505.   In the present dispute, Russia challenges certain determinations made by the 
European  Union's investigating authority in the context of the third expiry review on AN from Russia. 
Both parties agree that the provision of the Anti -Dumping Agreement dealing primarily with expiry 
reviews is  Article  11. The relevant portion of  Article  11.3 states:  
Notwithstanding the provisions of paragraphs 1 and 2, any definitive anti -dumping duty 
shall be terminated on a date not later than five years from its  imposition  … unless the 
authorities determine … that the expiry of the duty would be likely to lead to 
continuation or recurrence of dumping and injury .800 
7.506.   We recall that  the Appellate Body in US – Corrosion -Resistant Steel Sunset Review  explained 
that original investigations and expiry reviews are distinct processes with different purposes:  
In an original anti -dumping investigation, investigating authorities must determine 
whether dumping exists  during the period of investigation. In contrast, in a sunset 
review of an anti -dumping duty, investigating authorities must determine whether the 
expiry of the duty that was imposed at the conclusion of an original investigation would 
be likely to lead to  continuation or recurrence of dumping .801 
7.507.   The panel, in discussing the same issue, stated that "[i]n light of the fundamental qualitative 
differences in the nature of these two distinct processes … it would not be surprising to us that the 
textual obligati ons pertaining to each of the two processes may differ".802  
7.508.   Further, the  Appellate Body noted that  Article  11.3 does not prescribe any specific 
methodology to be applied in making a "likelihood" determination, and that this provision does not 
identify any particular factors that authorities must take into account in making such a 
determination803, stating "we observe that  Article  11.3 is silent as to how an authority should or 
must establish that dumping is likely to continue or recur  in a sunset review . That provision itself 
prescribes no parameters as to any methodological requirements that must be fulfilled by a 
Member's  investigating authority in making such a 'likelihood ' determination."804  
7.509.   However, as noted by the panel in US – Shrimp II (Viet Nam) , the Appellate Body did provide 
guidance to investigating authorities  in this regard .805 In particular, the Appellate Body indicated 
that a determination made in line with  Article  11.3 requires that investigating authorities "undertake 
a forward -looking analysis and seek to resolve the issue of what would be likely to occur if the duty 
were terminated".806 Further, we are mindful that the language of  Article  11.3 envisages an active 
 
798 Russia's first written submission, paras.  736-739.  
799 European Unio n's first written submission, para.  289. 
800 Emphasis added.  
801 Appellate Body Report, US – Corrosion -Resistant Steel Sunset Review , para.  107. (emphasis original)  
802 Panel Report , US – Corrosion -Resistant Steel Sunset Review , para.  7.8. 
803 Appellate Body Report, US – Corrosion -Resistant Steel Sunset Review , para.  123. See also 
Appellate  Body Report, US – Oil Country Tubular Goods Sunset Reviews , para.  283. 
804 Panel Report, US – Corrosion -Resistant Steel Sunset Review , para.  7.166.  
805 Panel Re port, US – Shrimp II (Viet Nam) , para.  7.305.  
806 Appellate Body Report, US – Corrosion -Resistant Steel Sunset Review , para.  105. WT/DS494/R  
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  process combining both investigatory and adjudicatory asp ects807, which requires authorities to  act 
"with an appropriate degree of diligence and arrive at a reasoned conclusion on the basis of 
information gathered as part of a process of reconsideration and examination."808 The w ord "likely", 
in particular, sets t he relevant evidentiary standard, requiring that the evidence demonstrates a 
reasonable probability  that dumping would occur if the duty were to expire. Any finding of likelihood 
should also be based on positive evidence.809 A firm evidentiary foundation is required in each case 
for a proper likelihood determination, and such a determination "cannot be based solely on the 
mechanistic application of presumptions".810  
7.510.   We are also mindful of the general standard of review for anti -dumping investigations, as 
expressed in  Article  17.6(i) of the Anti -Dumping Agreement:  
[I]n its assessment of the facts of the matter, the panel shall determine whether the 
authorities ' establishment of the facts was proper and whether their evaluation of  those 
facts was unbiased and objective . If the establishment of the facts was proper and the 
evaluation was unbiased and objective, even though the panel might have reached a 
different conclusion, the evaluation shall not be overturned [.] 
7.511.   We are thus of t he view that an investigating authority may therefore rely on a range of 
positive evidence (including evidence of past dumping and evidence of dumping in other 
jurisdictions811) in order to support a finding of likelihood of recurrence of dumping, so long a s the 
establishment of the facts in doing so was proper, the evaluation of those facts was unbiased and 
objective and the conclusion reached is reasoned and adequate.  
7.512.   With regard specifically to the relevance of  Article  2 of the Anti -Dumping Agreement in a 
determination of likelihood of recurrence of dumping, we note the statement of the panel in 
EU – Footwear (China)  that:  
[I]t is clear to us that  Articles  2 and 3 of the AD Agreement are not directly applicable  
to a determination under  Article  11.3, and thus to a panel's consideration of an alleged 
violation of  Article  11.3. Moreover, our view in this regard is not changed by the fact 
that an investigating authority chooses to make a determination of dumping or injury 
in the context of a particular expiry  review .812 
7.513.   In the present case, Russia relies on the panel's position in US – Corrosion -Resistant Steel 
Sunset Review  that a  "prospective likelihood determination will inevitably rest on a factual foundation 
relating to the past and present"813 to argue that dumping determinations subject to  Article  2 are 
relevant factors in a likelihood of recurrence of dumping determination.814 Russia further submits 
that "should investigating authorities choose to rely upon dumping margins in making their like lihood 
determination, the calculation of these margins must conform to the disciplines of  Article  2.4." 
Further, "'[i]f these margins were legally flawed because they were calculated in a manner 
inconsistent with  Article  2.4, this could give rise to an inc onsistency not only with  Article  2.4, but 
also with  Article  11.3 of the Anti -Dumping Agreement. ' In such circumstances, 'the 
likelihood[ -of-dumping] determination could not constitute a proper foundation for the continuation 
of anti -dumping duties under  Article 11.3.'"815  
7.514.   The Panel agrees with Russia 's basic assumption that, should an authority rely on dumping 
margins to examine the likelihood of recurrence of dumping in an expiry review, these dumping 
margins should be established in a manner consistent with the provisions of  Article  2 of the 
 
807 Appellate Body Report, US – Corrosion -Resistant Steel Sunset Review , para.  111. 
808 Appellate Body Report, US – Corrosion -Resist ant Steel Sunset Review , para.  111. 
809 Panel Reports, US – Corrosion -Resistant Steel Sunset Review , para.  7.45 and fn 48; US – DRAMS , 
para. 6.42; and Appellate Body Report, US – Carbon Steel , para.  88. 
810 Appellate Body Report, US – Corrosion -Resistant Steel  Sunset Review , para.  178. See also Panel 
Report, US – Shrimp II (Viet Nam) , para.  7.305.  
811 Panel Report, US – Corrosion -Resistant Steel Sunset Review , para.  7.180.  
812 Panel Report, EU – Footwear (China) , para.  7.157. (emphasis added)  
813 Russia's response to  Panel question No. 96, para.  139. Panel Report, US – Corrosion -Resistant Steel 
Sunset Review , para.  7.279.  
814 Russia's response to Panel question No. 96, para.  143. 
815 Russia's first written submission, para.  666; Appellate Body Report, US – Corrosion -Resistant Steel 
Sunset Review , paras.  127-130. WT/DS494/R  
BCI deleted, as indicated  [[***]] 
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  Anti-Dumping Agreement . Otherwise, they could not support an objective examination of the 
likelihood of recurrence of dumping. However, Russia fails to put the Appellate Body's finding  in 
context: in its c learest statement on the distinction between dumping determinations and likelihood 
of recurrence determinations, the Appellate Body set out plainly that "we see no obligation under  
Article  11.3 for investigating authorities to calculate or rely on dumping margins in determining the 
likelihood of … recurrence of dumping."816 The Appellate Body then continued, as Russia quotes, 
"[h]owever, should  investigating authorities choose  to rely upon dumping margins in making their 
likelihood determination".817 In the p resent case, a s we will discuss below, we do not consider that 
the European  Commission  in fact relied upon dumping margins, either previously established or 
calculated afresh, in determining the likelihood of recurrence of dumping .818  
7.515.   With this in mind, we turn to Russia's argument that the investigating authority did in fact 
rely on a dumping margin calculation in determining whether or not there was a likelihood of 
recurrence of dumping. Should we find that the authority did not rely on dumping margins for its 
analysis of the likelihood of recurrence of dumping, we would decline to make findings on the 
consistency of the European Union's likelihood of recurrence of dumping  determination with  Article  2 
of the Anti-Dumping Agreement . We would nevertheless examine the consistency of 
Russia's  determination with  Article  11.3 of the Anti -Dumping Agreement, that is , whether the 
determination was made  "on the basis of a 'rigorous examination' leading to 'reasoned and adequate 
conclusion ', and b e supported by 'positive evidence' and a 'sufficient factual basis .'"819  
Whether the determination of likelihood of recurrence of dumping in 
Regulation  999/2014 relied on a dumping margin calculation  
7.516.   The record indicates that, in the expiry review  at issue , the European  Commission  
determined that there was a likelihood of recurrence of dumping if the measure s were to lapse, on 
the following basis:  
a. The European  Commission  selected a sample of four exporters in the Russian Federation 
(Acron, EuroChem, Ural Ch em and SBU Azot): three provided partial questionnaire 
responses and Acron provided a full questionnaire response.820 The first two respondents 
made sales to the E uropean Union during the period of review but in the context of price 
undertakings; the last two respondents did not sell the product concerned to the 
European  Union during the period of review .821  
b. Due to incomplete responses or due to the fact that Acron exported unde r a price 
undertaking, the European  Commission  could not calculate a dumping margin for the four 
Russian producers/exporters .822  
c. The EU Commission established an average domestic ex -works price for the sales of the 
four Russian producers/exporters during t he period of review and compared it with their 
weighted average ex -works export price to certain third countries: it found that the 
average ex -works price of export sales of the four producers was below their average 
ex-works price of domestic sales and th us concluded that exports of AN were made at 
dumped prices to those third countries.823  
7.517.   The European  Union further clarifies that the European  Commission  based its likelihood of 
recurrence of dumping determination on:  
[T]hree equally important and interli nked factors: exports from Russia to other 
destinations at prices below domestic prices (which suggest that it is likely, should the 
 
816 Appellate Body Report, US – Corrosion -Resistant Steel Sunset Review , para.  127. 
817 Appellate Body Report, US – Corrosion -Resistant Steel Sunset Review , para.  127. (emphasis added)  
818 See para. 7.526  below.  
819 Russia's response to Panel question No. 96, para.  140 (quoting Appellate Body Report, US – Zeroing 
(Japan) , para.  182).  
820 Russia's first written submis sion paras.  640-641. 
821 Russia's first written submission para. 642.  
822 Russia's first written submission para.  645; Regulation  999/2014, (Exhibit  RUS-66), recitals  52-54. 
823 European Union's first written submission, para.  297; Russia's first written submiss ion para.  648; 
and Regulation  999/2014, (Exhibit  RUS-66), recitals  57-58. WT/DS494/R  
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  measures be removed, that Russian exporters would also sell to the EU at dumped 
prices), spare capacities of Russian produc ers (which are likely to be used and directed 
to the EU markets should the measures be removed), and incentives to redirect sales 
to the EU (in particular, the price difference between Russian exports to third country 
markets and prices charged in the EU s uggests that, should the measures be removed, 
Russian exporters will have an incentive to redirect some of their export sales to the 
EU). The Commission assessed these three factors in a holistic fashion  … [.]824 
7.518.   Regulation  999/2014 , in response to an RFPA allegation that  no appropriate methodologies 
were used in the dumping calculations , explains that the investigating authority  did not calculate 
dumping margins , but instead  "compared [the] average ex -works domestic prices with [the] 
ex-works export prices [of the Russian exporters, ] based on data reported by sampled 
companies. "825 Further, the same recital states that "i n a likelihood of recurrence of dumping analysis 
there is no need to calculate precise dumping margins, so there was no reason to use CIF values, 
as suggested by RFPA. "826 
7.519.   On the contrary, Russia argues that " whatever the legal characterization the EU tries to give 
to its price -to-price comparison , the Commission did make an actual dumping determination, and 
did calculate du mping margins, in order to reach a finding that Russian imports were 'dumped '".827 
Russia refers to instances where Regulation  999/2014 makes affirmative assertions that Russian 
imports were dumped in third -country markets.828 These include the following phrases:  
a. "Acron therefore sold at dumped prices  to third country markets, in particular to Brazil "829;  
b. "actual domestic prices already show that export sales to third country markets are 
dumped "830; and  
c. "Russian exporting prod ucers currently sell the product concerned at dumped prices to 
third countries ".831  
7.520.   According to Russia, these statements, and the price comparison do not constitute merely 
"'evidence relating to dumping ' but consist in a 'price-to-price comparison ', which  is 'the core 
principle of dumping '".832 
7.521.   For the European Union, t he comparison of average ex -works domestic prices with ex -works 
export prices  was performed " for the sole purpose of an assessment of the likelihood of recurrence 
of dumping, and as only 'one relevant factor ' in that assessment ".833 A determination of dumping is 
separate, and is governed by a distinct legal provision in the Anti -Dumping Agreement.  The 
European  Union argues that a simple price comparison  may be different from a "full-blown dumping 
margin calculation " in a number of ways, which are case -specif ic, and that this was recogni zed in 
US – Oil Country Tubular Goods Sunset Reviews ( Article  21.5 – Argentina) . There, according to the 
European Union,  the panel made a distinction between a "dumping determination" and an analysis 
which relates to the "general concept of dumping ".834 An example of the difference between these 
two analyses, provided by the European Union, is that in a "full -blown dumping m argin calculation"  
it is necessary to determine whether domestic sales were made in the ordinary course of trade .835  
7.522.   While we do not take a position with regard to the alleged legal differentiation advanced by 
the European  Union between "the concept of dum ping" and a "full -blown dumping margin 
calculation" , we agree with the basic principle put forward by the European  Union that a dumping 
 
824 European Union's response to Panel question No. 36, para. 101. (fns omitted)  
825 Regulation  999/2014, (Exhibit  RUS-66), recital  60. 
826 Regulation  999/2014, (Exhibit  RUS-66), recital  60. 
827 Russia's response to Panel question No. 37, para.  186. (emphasis added)  
828 Russia's second written submission, para.  983. 
829 Regulation  999/2014, (Exhibit  RUS-66), recital  57. 
830 Regulation  999/2014, (Exhibit  RUS-66), recital  63. 
831 Regulation  999/2014, (Exhibit  RUS-66), recital  65. 
832 Russia's second written submission, para.  985. 
833 European Union's first written submission, para.  300. 
834 European Union's response to Panel question No. 36, para.  91 (quoting Panel Report, US – Oil 
Country Tubular Goods Suns et Reviews (Article  21.5 – Argentina) , paras.  7.75-7.77).  
835 European Union's response to Panel question No. 36, para.  92. WT/DS494/R  
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  margin calculation is not required in order to make a finding that recurrence of dumping is likely . As 
discussed, i n a likelihood of recurrence of dumping determination there is no obligation  to rely on a 
dumping margin calculation, which logically means that such calculation is not a necessary 
component in finding that the recurrence of dumping is likely . We stress again that, in the context 
of an original investigation, an investigating authority needs to determine whether an exporter sold 
the product under consideration at dumped prices during the period of investigation (i.e. in the past). 
In the context  of an expiry review, the authority needs to determine whether there is a likelihood 
that the exporter will sell at dumped prices in the future, after anti -dumping measures expire. For 
that purpose, various methodologies could be used, including using proj ections about the future 
export price and future normal value.  
7.523.   Given that  Article  11.3 does not prescribe any specific methodology for an investigating 
authority to use or any particular factors that investigating authorities should consider when making 
a determination of likelihood of recurrence of dumping, the authority is free to use any evidence 
which it deems relevant to make its determination, as long as this results in reasoned and adequate 
conclusions, based on positive evidence, that dumping is lik ely to recur if the anti -dumping measures 
were to lapse. Further , as long as that evidence does not constitute a dumping margin calculation, 
it does not have to conform to the requirements of  Article  2. As recogni zed by the panel in 
US – Corrosion -Resistan t Steel Sunset Review , it is logical that "evidence relating to dumping (or 
the absence thereof)" since the imposition of the order could well be instructive in a likelihood of 
recurrence of dumping determination.836 Indeed, that panel found that evidence o f the existence of 
dumping in another jurisdiction might also be potentially relevant.837 We do not believe that the only 
evidence relating to the existence of dumping during the period of imposition of the order that can 
be considered by an investigating a uthority is a "full -blown determination of dumping" made 
pursuant to  Article  2.838  
7.524.   With this in mind, we turn to assess Russia's argument that the Commission did make a 
dumping determination in respect to third -countries, and thus must have  calculate d dumping 
margins, in order to reach a finding that Russian imports were "dumpe d".839  
7.525.   We note that Regulation  999/2014 sets out clearly, in the course of the expiry review, both 
what the Commission did and did not do, and that it specifically did  not carry out dumping margin 
calculations, but that it did make a price -to-price comparison. This is not to say that the 
Commission's word is being taken at face value, but that the Commission appeared to correctly 
understand what we have discussed above,  that (i) calculating a dumping margin and 
(ii) determining whether there would be a likelihood of recurrence of dumping from Russia should 
measures be allowed to lapse , may be two distinct processes, and proceeded on that basis to 
determine the second, wi thout engaging with the first. Indeed, the Commission stated that, a s most 
of the  sampled Russian exporting producers did not fully cooperate, the Commission "did not have 
sufficient data to carry out any dumping calculations on the basis of the companies'  own data ".840 
While  it could have carried out a dumping calculation  for Acron, the Commission considered that its 
data was not reliable for the purpose of this expiry review .841 
7.526.   In this regard, the comparison of average ex -works domestic prices with the ex -works export 
prices of the Russian exporters  does not in itself constitute a dumping margin calculation. It may be 
a required element of a dumping margin calculation but does not comprise one on its own. We 
consider, as the Commission did,  that the price c omparison is  an important indicator in the 
assessment of how future exports to the  European  Union may  develop if the anti -dumping measures 
were to  lapse, especially where those exports to third countries are not subject to anti -dumping 
duties. This pricing  policy of selling below domestic prices for sales to third -countries is a relevant 
factor in the determination, particularly if, like in the current dispute, expor t sales to the 
European  Union during the RIP could not be used for determining the future likelihood of the 
recurrence of dumping.842 In addition, we note that the price -to-price comparison was only one of 
 
836 Panel Report, US – Corrosion -Resistant Steel Sunset Review , para.  7.180.  
837 Panel Report, US – Corrosion -Resistant Steel Sunset Revie w, para.  7.180.  
838 Panel Report, US – Corrosion -Resistant Steel Sunset Review , para.  7.180.  
839 Russia's first written submission, para.  731 (referring to Regulation  999/2014, (Exhibit  RUS-66), 
recitals  63 and 57 -58). 
840 Regulation  999/2014, (Exhibit  RUS-66), recital  53. 
841 Regulation  999/2014, (Exhibit  RUS-66), recital  52. See paras. 7.536 -7.539  below.  
842 See paras. 7.536 -7.539  below.  WT/DS494/R  
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  various elements relied upon by the Commission in reaching its conclusion that there was a likelihood 
of recurrence of dumping.  
7.527.   Like Russia, we have noted that the terms "dumped" or "dumped prices" appear several 
times in the text of Regulation  999/2014. However, when those statements are examined in their 
proper context, it appears clearly that the European Union did not engage in  the calculation of 
dumping margins.  
7.528.   As a result of our findings above, particularly that there was no dumping margin calculation 
made in the course of the expiry review, we decline to make findings on the consistency of the 
European Union's likelihood of  recurrence of dumping  determination with Article  2 of the 
Anti-Dumping Agreement. We thus turn to  examine  Russia's claims  #9 and #11 against  the 
Commission's determination in light of the obligations contained in  Article  11.3 of the 
Anti-Dumping  Agreement .843 In doing so, we may refer to the provisions of  Article  2 as context  for 
interpreting the obligations contained in  Article  11.3, but note once again that they are not directly 
applicable.  
7.529.   We recall that Russia makes two arguments in support of its claim  that the 
European  Union's  determination of likelihood of recurrence of dumping violated  Article  11.3:  
a. That t he European Union  failed to consider evidence submitted by the Russian exporting 
producers, that demonstrated an absence of dumping, and instead relied on export prices 
of AN to third countries  (claim #9).844  
b. That the European Union  made findings on "dumping", based on Russian exports to 
third-countries  although the European Union  is the importing Member . Accordingly, the 
European Union  should have assessed Russian exports of the product under consideration 
to the European Union  (claim #11) .845 
7.530.   As a consequence, Russia considers that the European  Union did not carry out a "rigorous 
exam ination" and eventually did not draw "reasoned and adequate conclusions" supported by 
"positive evidence" and a "sufficient factual basis", as required under  Article  11.3 of the 
Anti-Dumping Agreement .  
Whether the European  Union breached  Article  11.3 of t he 
Anti-Dumping  Agreement by failing to examine the impact of the alleged absence of 
dumping by the largest Russian exporters  (claim  #9) 
Arguments of the parties  
7.7.4.4.1.1   Russia  
7.531.   Russia argues that the EU authorities failed to examine the impact of the absence of dumping 
by the largest Russian exporters during the review investigati on period .846  
7.532.   According to Russia, Acron and EuroChem together exported almost all Russian -origin AN to 
the European  Union during the RIP , as SBU Azot and UralChem "did not sell the product concerned 
to the Union during the RIP ."847 Here Russia argues that:  
[T]hrough undertakings of Acron and EuroChem, including regular reporting on volume 
and prices of AN supplied to the European Union[666], replies of these companies in 
questionnaires [667] as well as the Commission's verification visits the EU authorities 
 
843 Russia submits: "[e]ven if the Panel finds that the investigating authority did not calculate a dumping 
margin as p art of its likelihood -of-dumping analysis, Russia maintains that claims  #9 and 11 should 
nevertheless be considered." (Russia's response to Panel question No.  37, para.  188). 
844 Russia's response to Panel question No. 37, para.  189. 
845 Russia's response to P anel question No. 37, para.  189. 
846 Russia's first written submission, paras.  683-708. 
847 Russia's first written submission, para.  643 (quoting Regulation  999/2014, (Exhibit  RUS-66), 
recital  62). See also European Union's first written submission, para.  310.  WT/DS494/R  
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  received sufficient verifiable information to make determinations under  Article  11.3 of 
the Anti -Dumping Agreement .848  
 
666 See Exhibit  RUS-123 (BCI).  
667 For Acron 's data, see Exhibit  RUS-124 (BCI) and Exhibit  RUS-145 (BCI). Comments on the definitive 
disclosure , Annex VI -B-I, Exhibit  RUS-102 (BCI).  
 
Russia  further claims  that t he Anti-Dumping  Agreement does not allow the investigating authority 
in a likelihood -of-dumping determination to disregard export prices on the sole basis that these 
prices are subject to a price undertaking  and that the European  Union was obliged  to "base its 
dumping calculations on the export prices of investigated producers and exporters to the EU ", 
including prices under price undertakings .849 The data from Eu roChem and Acron allegedly 
demonstrated that sales of Russian AN in the European  Union were not made at dumped prices as 
the weighted average dumping margin for sales made by both companies stood at [[***]].850 Russia 
explains that Euro Chem's data was superior to th at presented in the definitive disclosure since it is 
transaction -specific and since , in the review , the European  Union incorrectly focused on the dumping 
margins calculation based on sales to third countries, rather than to the European  Union.  
 
7.7.4.4.1.2   The European Union  
7.533.   The European  Union responds that the two producers that made sales to the European  Union 
in the RIP (Acron and EuroChem)  were both subject to price undertaking s which set minimum price s 
for their respective imports into the European Union, either during the entirety of the period under 
review (in the case of Acron ), or during a part of that period  (in the case of EuroChem ).851 For the 
European  Union, price undertakings do not reflect the actual forces of supply and demand and 
therefore, as  stated in Regulation  999/2014, the decision to reject data from Acron and Euro Chem 
was based on the fact that the European  Commis sion did not consider " export prices based on a 
price undertaking a meaningful indicator in the analysis of future behaviour of exporting producers 
in the absence of measures and any price undertak ing."852 Additionally, the European  Union notes 
that Russia's claim  that EuroChem 's and Acron 's sales to the European  Union were not at dumped 
prices  is incorrect, as  the document which allegedly demonstrates this does not accurately reflect 
the data that was prov ided to and verified by the Commissio n.853 The Commission concluded that 
the relevant  export prices were considered an "unreliable element in the analysis of the likelihood of 
continuation or recurrence of dumping in the specific circumstances of this inves tigation. "854 
7.534.   The European  Union also argues that the requirement for an investigating authority to arrive 
at a "reasoned conclusion" as to the likelihood of recurrence of dumping does not have to be satisfied 
through a specific methodology or the considera tion of particular factors in every case.855 Instead, 
for the European Union, what is important is that the factors which are relied upon provide a 
sufficient factual basis for the conclusion of likely future recurrence of dumping.  
Evaluation by the Panel  
7.535.   Russia claims  that the investigating authority failed to examine the impact of the absence of 
dumping by the largest Russian exporters, on the likelihood of recurrence of dumping.  
7.536.   We note first that Regulation  999/2014 indicates that eight exporting produc ers provided a 
response to the sampling questionnaire and that the European  Commission  selected a sample 
representing 88% of the total export sales from Russia in volume (to the Union and to third 
 
848 Russia's first written submission, para.  690.  
849 Russia's response to Panel questio n No. 97, para.  151. 
850 Determination of dumping margins for exports to the E uropean Union, (Exhibit  RUS-125 (BCI)).  
851 European Union's first written submission, para.  310 (referring to Regulation  999/2014 , 
(Exhibit  RUS-66), recitals  52 and 62).  
852 Russia's first written submission, para.  688; European Union's first written submission, paras.  311 
and 313; and Regulation  999/2014 , (Exhibit  RUS-66), recitals  52, 54 , and 62.  
853 European Union's first written submission, para.  320 and table 2.  
854 Regulation  999/2014 , (Exhibit  RUS-66), recital  54. 
855 European Union's response to Panel question No. 96 (referring to Appellate Body Report, US – Oil 
Country Tubular Goods Sunset Reviews , para. 283).  WT/DS494/R  
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  countries) during the review period.856 Questionnaires reque sting information on export prices to all 
destinations, including to the European Union, were sent to the sampled producers and the authority 
obtained at least partial responses from all four producers/exporters.857 Regulation  999/2014 also 
notes that "only  Acron provided a complete questionnaire reply [while] EuroChem, UralChem and 
SBU Azot provided only partial replies".858 In addition, the European  Commission  conducted 
verification visits at the premises of four Russian producers/exporters.859  
7.537.   The European  Commission  examined the sales data provided by Russian 
producers/exporters and came to the conclusion that such export prices were "an unreliable element 
in the analysis of the likelihood of continuation or recurrence of dumping in the specific ci rcumstances 
of this investigation."860 
7.538.   We do not agree with Russia's position that  the Anti-Dumping Agreement does not allow the 
investigating authority to disregard export prices  which are subject to a price undertaking from the 
factors considered for the purpose of making a likelihood -of-dumping determination, particularly in 
a situation where no dumping margin calculation was made, as is the case here. In  the relevant 
price undertakings, the exporting producers agreed to sell the product concerned at or a bove price 
levels which eliminate the injurious effects of dumping.861 While sales could have been made below 
the minimum price set by the undertaking, this would result in the imposition of the anti -dumping 
duty.862 By its nature, a minimum price undertakin g has market -distorting effects which heavily 
discourage sales being made at below -minimum prices in order to avoid imposition of the 
anti-dumping duty.863 The price undertaking also involved a cap on quantity and other restrictions.864 
We thus find it diffi cult to agree with Russia's argument that those sales made under a minimum 
price undertaking would be a reliable indicator regarding the likely future development of prices in 
the absence of that price undertaking . As [[***]] sold the product concerned at a price above the 
minimum import price under the undertaking  while [[***]], who was subject to the undertaking 
only for a limited period of time during the RIP , sold below the minimum import price , it is unclear 
how prices would be set  if the undertaking s and anti -dumping duties were to lapse . In this sense, 
each of these companies' export prices could not be considered to be only the result of normal 
market conditions .865  
7.539.   Accordingly, we agree with the European  Union that the export prices of Acron and 
EuroChem, which were based on a price  undertaking, were not a meaningful indicator in the analysis 
of future  pricing behaviour of exporting producers , in the absence of the anti -dumping measures 
and any price undertaking , especially given the pra ctically limited amount of evidence of market 
prices from the sampled producers in this regard.866  
7.540.   So long as the conclusion reached by the investigating authority is reasoned, adequate and 
is based on positive evidence, we see no reason to rule that specific evidence or a particular 
methodology should have been used. We recall that our task is not to undertake a de novo  review 
of the evidence or substitute our judgement for that of the investigating authority. Our task is to 
assess whether, in view of the evidence  on the record, the investigating authority conducted an 
objective examination based on pos itive evidence and therefore whether its likelihood -of-injury 
determination was reasoned and adequate . We thus reject Russia's claim  that the European  Union 
breached  Article  11.3 by failing to ex amine the impact of the alleged absence of dumping by the 
largest Russian exporters during the review investigation period . 
 
856 Regulation  999/2014, (Exhibit  RUS-66), recitals  26-29. 
857 Regulation  999/2014, (Exhibit  RUS-66), recitals  30-31. 
858 Regulation  999/2014, (Exhibit  RUS-66), recital  32. The Regulation  indicates that "[t]hese partial 
replies did not allow the Com mission to fully verify their sales data as well as their cost of production."  
859 Regulation  999/2014, (Exhibit  RUS-66), recital  36. 
860 Regulation  999/2014, (Exhibit  RUS-66), recital  54. 
861 Commission Decision 2008/577, (Exhibit  RUS-135), recital  12. 
862 Europ ean Union's response to Panel question No. 97, para.  97. 
863 There appears to be no evidence that sales were made at below -minimum prices during the RIP. See 
European Union's response to Panel question No. 97, para.  98. 
864 Commission Decision 2008/577 , (Exhib it RUS-135), recitals  12 (referring to quantitative ceilings and 
price indexation) and 13 (prohibiting sales to certain customers).  
865 Regulation  999/2014 , (Exhibit  RUS-66), recital  159. 
866 European Union's first written submission, para.  336; Regulation  999/2014 , (Exhibit  RUS-66), 
recital  54. WT/DS494/R  
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  7.541.   We now turn to two additional claims  made by Russia under claim  #9. 
7.7.4.4.2.1   Whether the European  Union breached  Article  6.10 of the 
Anti-Dumping  Agreement by failing to determine individual dumping mar gins for each of 
the sampled producers  
7.542.   Russia claims  that since the European  Union based its likelihood of recurrence of dumping 
determination on a finding of "dumped" prices and since the European  Union relied on  a sample of 
Russian exporting producers , it should have determined individual dumping margins for the Russian 
sampled produce rs in line with  Article  6.10.867 
7.543.   The European  Union argues that the Commission was not required to engage, and did not in 
fact engage, in any dumping determination, or any determination of dumping margins, for the 
Russian producers ' exports to the European  Union or to third countries. According to the 
European  Union it was also "not under any obligation to determine individual dumping margins under  
Article  6.10, and certainly not under  Article  11.3, which is the relevant provision that speaks to the 
obligati ons of investigating authorities in expiry reviews ."868 
7.544.   We agree with the European  Union that, given that the Commission  did not rely on a 
dumping margin calculation in its determination of likelihood of recurrence of dumping, and was not 
required to  do so , it was not required to calculate dumping margins for each individual sampled 
producer. As the European  Union points out, the  Appellate Body  has previously  agreed with  the 
finding that "the provisions of  Article  6.10 concerning the calculation of individua l margins of 
dumping in investigations do not require that the determination of likelihood  of continuation or 
recurrence of dumping under  Article  11.3 be made on a company -specific basis."869 We agree with 
this understanding and see no reason why it would not apply here. Accordingly, we reject 
Russia's  claim  that the European  Commission 's determination of likelihood of recurrence of dumping 
was inconsistent with  Article  6.10. 
7.7.4.4.2.2   Whether the Europ ean Union breached  Article  6.8 of the 
Anti-Dumping  Agreement  by rejecting EuroChem's export prices based on its partial 
non-cooperation  
7.545.   Russia argues that by refusing to use EuroChem's export price data to the European  Union 
during the review period in its  likelihood of recurrence of dumping determination, the 
European  Union separately violated the provisions of  Article  6.8 of the Anti -Dumping Agreement.870 
According to Russia, EuroChem provided the European  Union with the data on its EU and other 
markets sa les that the European  Union allegedly  verified and later used to calculate dumping 
margins.871 Additionally, EuroChem provided the European  Union  with a transaction -by-transaction 
report in the context of a price undertaking. As a result,  according to Russia,  the European  Union 
could not  legitimately rely on  Article  6.8 to disregard Euro Chem's export prices . 
7.546.   The relevant portion of  Article  6.8 of the Anti -Dumping Agreement states that "[i] n cases in 
which any interested party … does not pr ovide necessary information within a reasonable period or 
significantly impedes the investigation, preliminary and final determinations, affirmative or negative, 
may be made on the basis of the facts available. " 
7.547.   We note that nothing on the record indicates  that the European  Commission  had recourse 
to "the facts available " alternative in the case of EuroChem. The European  Commission  noted 
the partial cooperation of EuroChem in its response to the written questionnaires but did not replace 
the missing facts w ith facts available in order to reach its determination. It appears that the 
European  Commission  determined that it did not have enough information on the record to establish 
a dumping margin for EuroChem and decided to base its determination of likelihood  of recurrence 
 
867 Russia's first written submission, para.  702. 
868 European Union's first written submission, para.  331. 
869 Appellate Body Report, US – Corrosion -Resistant Steel Sunset Review , para.  155. (emphasis original)  
870 Russia's fi rst written submission, para.  700. 
871 Regulation  999/2014, (Exhibit  RUS-66), recital  58. WT/DS494/R  
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  of dumping on other indicators as discussed elsewhere in this report . The European  Union however 
notes that its analysis did include the ex -works sales prices  reported by Euro Chem.872 
7.548.   In this context, we find that Russia's claim  under  Article  6.8 of the Anti -Dumping Agreement 
is not sufficiently supported by the evidence on the record. We therefore reject this element of 
Russia's claim  #9. 
Whether the  European  Union violated  Article  11.3 of the Anti -Dumping 
Agreement by making the affirmative determination of likelihood of dumping on the basis 
of alleged "dumping" to third -countries without conducting proper dumping margin 
calculations  (claim  #11)  
7.549.   The alleged inconsistency of the European Union's determination of likel ihood of dumping 
with various provisions of the Anti-Dumping Agreement with respect to third countries is the subject 
of Russia's claim  #11. Russia's claim  centers around  Articles  2.1, 2.2, and 2.4 of the Anti-Dumping 
Agreement  and Article  VI:1 of the GATT  1994 and the alleged calculation of dumping margins, and 
Russia invokes a violation of  Article  11.3 as a consequence of violating those prior provisions.873  
7.550.   In this regard, Russia argues that:  
a. The dumping determination made by the EU violates  Article  2.1 of the 
Anti-Dumping  Agreement because the EU did not undertake the first step in the process 
of determination of normal value, i.e. it did not exclude sales not made 'in the ordinary 
course of trade', from the calculation of normal value . 
b. The dumping determination made by the EU violates  Article  2.2 of the Anti-Dumping 
Agreement because the EU did not consider sales of the like product in the ordinary course 
of trade, and instead relied on an alternative base (i.e. weighted average ex -works 
domestic prices of three different producers) outside the circumstances set forth in  
Article  2.2 of the Anti-Dumping Agreement . 
c. The dumping determination made by the EU violates  Article  2.4 of the 
Anti-Dumping  Agreement because the EU failed to make a "fair c omparison … between 
the export price and the normal value" and instead compared some values relating to 
domestic sales of the like product with export prices of the like product to third countries . 
d. The dumping determination made by the EU violates  Article  VI:1 of the GATT 1994 
because the EU made determination of dumping without properly having determined that 
the export price to the EU was "less than the comparable price, in the ordinary course of 
trade, for the like product when destined for consumption i n the exporting country" and 
relied on alternative bases not foreseen by  Article  VI:1 of the GATT 1994 . 
e. As the dumping determinations are tainted, and since they have been relied on by the EU 
in their likelihood -of-dumping analysis, such analysis is not ba sed on reasoned conclusions 
drawn from an adequate factual basis premised on positive evidence and therefore violates  
Article  11.3 of the Anti-Dumping Agreement .874 
7.551.   The European  Union responds that it did not engage in any affirmative determination of 
dumping or any dumping margin calculation, when determining the likelihood of recurrence of 
dumping875 and had no obligation to calculate or rely on dumping margins in making a 
likelihood -of-dumping determination . It also submits  that Article  2 of the Anti-Dumping Agreement 
does not apply to such a determination .876 
 
872 See Annex 2: Detailed explanations on corrections done to data submitted by EuroChem Group , 
(Exhibit  EU-15 (BCI)).  
873 Russia's first written submission, paras.  710-739; response to Panel question No. 37, para.  189. 
874 Russia's second written submission, para.  991.  
875 European Union's first written submission, para.  344.  
876 European Union's first written submission, para.  345. WT/DS494/R  
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  7.552.   We note that Russia's claim #11 under  Article  11.3 is consequential to the alleged violation s 
of Article  2, due to what it understands to be incorrectly calculated dumping m argins.877  
7.553.   We recall our finding s above that:  
a. the European Union's likelihood of recurrence of dumping determination does not rely on 
a dumping margin calculation; and  
b. Article  2 is not directly  applicable to  an analysis under  Article  11.3.  
7.554.   We also recal l our finding that, as far as Russia's claims  in this section are based on direct 
violations of  Article  2, we have rejected them . As its claim  under  Article  11.3 is purely consequential 
on a finding that the European Union's determination of a likelihood of recurrence of dumping  was 
in violation of  Articles  2.1, 2.2, and 2.4, and as its claim  under  Article  VI of the GATT  1994 similarly 
relies on such findings, we accordingly reject Russia's claim  #11 in its entirety.  
7.555.   We now turn to claims  #3 an d #4.  
Whether the European Union erred by failing to conduct a separate expiry review 
for the imports of Kirovo  (claim  #3)  
Introduction  
7.556.   Russia claims  that the European  Union violated  Articles  11.3, 3.1, 11.1, 1 , and 18.1 of the 
Anti-Dumping Agreement beca use it "made findings relating to (a) likelihood of recurrence of 
dumping, and (b) likelihood of recurrence of injury, for the product scope comprising FGAN, IGAN 
and stabilized AN at large only, but not for the reduced product scope of the antidumping mea sure 
applicable to imports of FGAN and IGAN by Kirovo (excluding stabilized AN) ".878 Russia argues that 
the European Union:  
[I]mposed anti -dumping measures on imports of AN manufactured by Kirovo, excluding 
Stabilized AN, while the likelihood of dumping an d injury determinations were made for 
a different product scope that included Stabilized AN.879 
7.557.   Thus, according to Russia, the European  Commission  should have conducted two separate 
analysis of likelihood of recurrence of dumping and injury, in order to take into account, respectively: 
(i) the product scope comprising FGAN, IGAN and stabili zed AN , and (ii) the product scope of imports 
from the Kirov o plant, which includes FGAN and IGAN, but not stabili zed AN .880 By applying the  
likelihood determination made in relation to the broader set of product types (IGAN, FGAN and 
stabilized  AN) to the narrower set of product types, Russia argues that the Europe an Union breached 
its obligations under the Anti -Dumping Agreement.  
7.558.   The European  Union responds that "it is difficult to see what Russia considers objectionable 
with respect to Kirovo and the conduct of a 'single ' expiry review".881 The European  Union also recalls 
that the Appellate Body in US – Corrosion -Resistant Steel Sunset Review  ruled that there is no 
requirement that "the determination of likelihood of continuation or recurrence of dumping under  
Article  11.3 be made on a company -specific basis."882 
7.559.   The European Union  argues  that Regulation  999/2014 applies to the same product scope as 
the one established in previous determinations.883 Further, its analysis of likelihood of recurrence of 
 
877 Russia's second written submission, para. 991, fifth bullet point.  
878 Russia's first written submission, para.  618 (fn omitted). We recall that imports of stabilized AN from 
the Kirovo plant had been excluded from the scope of the product concerned by a judgment of the Court of 
First Instance of the European Communities.  
879 Russia's second written submission, para.  854. 
880 Russia's second written submission, para.  843. 
881 European Union's first written submission, para.  259.  
882 European Union's first written submission, para.  259 (quoting Appellate Body Report, 
US – Corrosion -Resistant Steel Sunset Review, para. 155). 
883 European Union's first written submission, paras.  185 and 255. See Regulation  989/2009 , 
(Exhibit  RUS-116), recitals  4 and 44. See also Case T 348/05  (9 July 2019) , (Exhibit  RUS-74). WT/DS494/R  
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  dumping was based on three factors: (i) the export price from Russia  to third countries, (ii) the 
production capacity and spare capacity in Russia as a whole and (iii) the attractiveness of the EU 
market compared to third -country markets.884 For the European Union, the analysis of these factors 
does not necessitate a distin ction between product scopes including or not including imports of 
stabili zed AN from Kirovo. Moreover,  the situation of Kirovo was mentioned in Regulation  999/2014 
in relation to spare capacity of " other types of ammonium nitrate currently excluded from t he 
application of the anti -dumping measures ".885 In this regard, the European  Union refers to 
Regulation  999/2014, which explains that:  
[T]he total spare capacity of Kirovo was included in the spare capacity calculation as 
the spare capacity of other types of ammonium nitrate currently excluded from the 
application of the anti -dumping measures can very easily be used for producing 
ammonium nitrate currently falling within CN codes 3102 30 90 and 3102 40 90.886  
7.560.   With regard to the analysis of likelihood of recurrence of injury, the European Union argues 
that " it is difficult to see how an analysis of domestic prices or of the state of the domestic industry 
could be conducted differently with regard to different Russian producers, or sets of Russian 
produc ers".887 
Analysis  
7.561.   In essence, Russia's claims  are based on the view that the European  Commission  should 
have made two likelihood of recurrence of dumping and injury determinations – one including all 
product types falling within the product under considerat ion (FGAN, IGAN and stabili zed AN), and 
another covering only those product types produced by Kirovo that are subject to measures (FGAN 
and IGAN).888 Russia acknowledges that the anti -dumping duty imposed on Kirovo is limited to IGAN 
and FGAN , but argues th at this is irrelevant, as the product scope in  the case of Kirovo is different 
from the product scope examined during the expiry review with respect to other Russian exporting 
producers . 
7.562.   According to Regulation  999/2014, t he product concerned by this review is the same as the 
product defined in Regulation  661/200 8 (solid fertilisers with an ammonium nitrate content 
exceeding 80% by weight, currently falling within CN codes 3102 30 90, 3102 40 90, ex 3102 29  00, 
ex 3102 60 0 0, ex 3102 90 00, ex 3105 10 00, ex 3105 20 10, ex 3105 51 00, ex 3105 59 00 and 
ex 3105 90 20 ). Importantly, w ith regard to AN produced by Kirovo,  only AN currently falling within 
CN codes 3102 30 90 and 3102 40 90 is the product concerned pursuant to Regulation  989/2009.889 
Thus, we find that the product scope has been clearly defined in Regulation  999/2014, regarding 
Kirovo, as being only AN currently falling within CN codes  3102 30 90 and 3102 40 90  (thus 
excluding stabili zed AN from any later determinat ions made, in regard to that company).  
7.563.   Further, w e are of the view that an  analysis of likelihood of dumping and injury in the context 
of an expiry review is conducted on the basis of "a product". As the European  Union argues, 
Regulation  999/2014 assesses  the likelihood that dumping of the product concerned will recur, and 
that injury to the domestic industry, caused by such dumping, will recur.890 We therefore disagree 
with Russia that the judgment of the Court of First Instance, as implemented by 
Regulati on 989/2009, resulted in "two separate product scopes"891: Regulation  989/2009 
implemented a modification in the product scope which excluded imports of stabilized AN from 
Kirovo. We thus disagree that the investigating authority should have assessed the li kelihood of 
recurrence of dumping and injury separately for each one of these alleged product scopes.  
 
884 European Union's first writ ten submission, para.  257. 
885 Russia's second written submission, para.  844. 
886 European Union's first written submission, para.  257 (quoting Regulation  999/2014 (Exhibit  RUS-66), 
recital  69).  
887 European Union's first written submission, para.  258.  
888 Russia's second written submission, para.  852. 
889 Regulation  999/2014, (Exhibit  RUS-66), recital  44. 
890 European Union's first written submission, para.  259. 
891 Russia's second written submission, para.  845.  WT/DS494/R  
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  7.564.   Russia, for us, has failed to demonstrate that the investigating authority, by not conducting 
two separate determinations , did not act with an appropriate degree of diligence and failed to arrive 
at a reasoned  and adequate  conclusio n, as required by  Article 11.3.  
7.565.   Under claim  #3, Russia makes several additional claims  respectively on the basis of  Article  1, 
Article  3, Article  11.1, and Article  18.1 of the Anti -Dumping Agreement.  
7.566.   We recall our conclusion above892 that Article  3 of the Anti -Dumping Agreement does not 
apply to a determination of likelihood of recurrence of injury in an expiry review, unless this 
determination is based on a finding of material injury. Under claim  #3, Russia does not argue that 
the European  Commission 's determination of likelihoo d is based on a finding of material injury. We 
therefore reject Russia's claim  #3 insofar as it is based  on Article  3. 
7.567.   Regarding  Article  11.1, which states that: "an anti -dumping duty shall remain in force only 
as long as and to the extent necessary to cou nteract dumping which is causing injury", we note, like 
the panel in US – Shrimp II (Viet Nam)  that:  
Several prior panel decisions suggest that  Article  11.1 does not impose independent 
obligations upon Members, but rather, establishes the general principle that duties may 
only continue to be imposed so long as they remain necessary, which principle is 
operationalized in  Articles  11.2 and 11.3.893 
7.568.   We agree with this statement and find that we do not need to make a separate evaluation 
of Russia's claim #3 under  Article  11.1 of the Anti -Dumping Agreement in order to resolve the 
dispute.  
7.569.   Finally, Russia's claim  under  Articles  1 and 18.1 is consequential to a finding of inconsistency 
with the provisions of the Anti -Dumping Agreement  ("as a result of the above mentioned 
violations ").894 Since Russia has failed to show any inconsistency with the Agreement under 
claim  #3, we also find that Russia has not demonstrated that the European Union acted 
inconsistently with  Articles  1 and 18.1.   
7.570.   We thus reject Russia 's claim  #3 as it relates to  Articles  11.1, 11.3 , and 3, and find it 
unnecessary to make findings on this claim under  Articles  1 and 18.1.  
Whether the European Union erred by incorrectly defining the domestic industry 
and by making a likelihood of recurren ce of injury determination based on incomplete 
data ( claim  #4) 
Introduction  
7.571.   Russia alleges that there was a discrepancy between the product types produced by the 
domestic industry and the product types produced by Russian exporters that were considered in the 
European  Commission 's determination of the likelihood of recurrence of i njury. In particular, Russia 
alleges that the domestic industry was defined to comprise of producers of FGAN, while the scope 
of products imported from Russia was wider, including other types of ammonium nitrate. According 
to Russia, this discrepancy means  that the likelihood of recurrence of injury analysis is not based on 
positive evidence and thus violates 3.1, 3.2 , and 3.4, as well as  Article  11.3 of the 
Anti-Dumping  Agreement.  
7.572.   In addition, Russia claims  that " there is a dissimilarity between the like products 
manufactured by the domestic industry and the products imported from Russia, in contradiction with  
Article  2.6 of the Anti -Dumping Agreement, insofar as the scope of the products imported from 
Russia is broader than the scope of the like product m anufactured by the domestic industry 
considered for injury determination purposes ".895 
 
892 See para. 7.383  above . 
893 Panel Report, US – Shrimp II (Viet Nam) , para.  7.363.  
894 Russia's first written submission, para.  622 (iv).  
895 Russia's first written submission, para.  628. WT/DS494/R  
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  7.573.   Further, Russia claims  that, due to the exclusion of key IGAN and stabili zed AN producers 
from the domestic industry examined for the purpose of the likelihood of recurrence of injury 
determination "it cannot be claimed that the 'domestic industry' as defined [by the investigating 
authority] … corresponds to 'the domestic producers as a whole of the like products'". Russia 
considers that this constitutes a breach of  Article  4.1 of the Anti -Dumping Agreement .896 
7.574.   The European  Union asks us to reject Russia's claims. According to the European Union, t he 
domestic industry was defined from the very beginning as producers of ammonium nitrate as a 
whole (irrespective of the end use of the product) .897 Moreover, f our out of ten major producers of 
IGAN supported the expiry review request and were included in the domestic industry; and an 
additional producer (GrowHow) provided the European  Commission  with information on its 
produ ction of AN for both agricultural and industrial purposes .898 The European Union also argues 
that the Commission actually used a combination of two injury datasets (provided in April and 
May 2014 respectively) which included information on both FGAN and IGA N.899  
Analysis  
7.575.   In essence, Russia claims  that the domestic industry was defined as producers of FGAN only, 
when the likelihood of recurrence of injury to be caused by future dumped imports was assessed on 
the basis of imports of FGAN, stabili zed AN and IGA N. Russia explains that:  
As a result there is a dissimilarity between the like products manufactured by the 
domestic industry and the products imported from Russia, in contradiction with  
Article  2.6 of the Anti -Dumping Agreement, insofar as the scope of t he products 
imported from Russia is broader than the scope of the like product manufactured by the 
domestic industry considered for injury determination purposes.900 
7.576.   Article 2.6 of the Anti -Dumping Agreement reads:  
Throughout this Agreement the term "like product " ("produit similaire ") shall be 
interpreted to mean a product which is identical, i.e. alike in all respects to the product 
under consideration, or in the absence of such a product, another product which, 
although not alike in all respects, has characteristics closely resembling those of the 
product under consideration.  
7.577.   Although we have concluded above that the provisions of  Article  2 are not directly applicable 
in the context of an expiry review, we agree wi th Russia that a failure to correctly  define  the like 
product would necessarily mean that the expiry review was not objective and based on positive 
evidence. In the present dispute we understand Russia to argue that the European  Commission 's 
definition of the like product was biased, as it failed to include certain product types which compose 
the product under consideration imported from Russia.   
7.578.   For Russia, the "EU at the initiation of the review, and in line with the past practice, defined 
the domestic in dustry as consisting solely of producers of FGAN"901, while the product under 
consideration included other types of ammonium nitrate, namely IGAN and stabili zed AN.902 In 
support of its argument, Russia refers to a response given by the investigating authori ty in the 
Hearing report dated 17 July 2014903, listing the producers of AN included in the domestic industry 
for the purpose of the expiry review. Russia argues that "none of these producers is a major producer 
of IGAN" and "none of the major EU producers of IGAN … formed part of the EU domestic industry 
and cooperated with the review."904  
 
896 Russia's first written submission, para. 634. 
897 European Union's first written submission, para.  271. 
898 European Union's first written submission, paras.  269-270. 
899 European Union's first written submission, paras.  272-273. 
900 Russia's first written submission, para.  628. 
901 Russia's first written submission, para.  624. 
902 Russia's first written submission, paras.  623-624. 
903 Russia's first written submission, fn 573 (referring to Hearing Report in Case R569 (17 July 2014), 
(Exhibit  RUS-81 (BCI)), p.  8). 
904 Russia's first written submission, para.  624. (fn omitted)  WT/DS494/R  
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  7.579.   In our view, the evidence on the record does not support Russia's claim  that the like product, 
as defined by the investigating authority, does not include IGAN and stabil ized AN. We note first that 
Regulation  999/2014 states that "[t]he AN produced by the Union industry is a like product as 
regards physical and technical characteristics to the AN exported to the Union by Russia."905 This 
statement must be read in parallel w ith the description of the product under consideration which 
states that the product concerned is AN falling under CN codes which "can include AN used for 
industrial purposes …" and stabili zed AN.906 On its face therefore, Regulation  999/2014 defines the 
AN produced by the domestic industry as comprising the same types of AN as the product concerned.  
7.580.   Regulation  999/2014 also indicates that the applicant and the supporters of the request are 
producers of FGAN as well as of other product  types covered by this  expiry review.  Therefore, the 
request was not supported only by FGAN producers, but also by producers of other types of the 
product concerned .907 This is confirmed by Russia itself in its submissions before  the Panel . Russia 
indicates that "the only two IGAN producers forming part of the EU domestic industry, namely Yara 
France and GrowHow, are sampled producers."908 This statement thus contradicts the argument that 
"none of the major E U producers of IGAN … formed part of the EU domestic industry and coope rated 
with the review."   
7.581.   We have previously found, in rejecting Russia's claim #6909, that the European Union was 
not in contravention of its obligation to correctly define the domestic industry under  Article  4.1. We 
do not consider that Russia's arguments relating to  Article  4.1 under this claim  differ in any material 
way to those under its claim #6, and our conclusion follows. We consider that the European Union 
did not incorrectly define the domestic industry in the context of its expiry review, as a resu lt of its 
alleged improper expansion of the product scope: we are not convinced that the sample chosen by 
the European  Commission  was not representative910 and that Russia has made a prima facie  case 
that the likelihood of recurrence of injury assessment was made on erroneous and incomplete data 
provided by the domestic industry911; and indeed, we consider that the domestic industry as defined 
includes producers of FGAN as well as IGAN.912 In addit ion, we recall our conclusion that 
Regulation  999/2014 does not expand the product scope of the product concerned.913 
7.582.   For the foregoing reasons, we therefore reject Russia's claim  that the European  Union 
violated  Article  11.3 of the Anti -Dumping Agreement b y defining the like product as FGAN only and  
Article  4.1 by defining the domestic industry as producers of FGAN  only. We also reject 
Russia's  additional claim under  Article  3 of the Anti -Dumping Agreement because this claim  is 
consequential to a finding th at the European  Commission  failed to correctly define  the like product. 
We also recall that  Article  3 does not apply directly in the context of an expiry review.  
7.583.   We therefore reject Russia's claim  #4 in its entirety.  
Claims with respect to the continuous levying of the anti-dumping duties  
(claims  #12 to #15)  
Introduction  
7.584.   Claims #12 to #15 relate to  the continuous imposition and levy  of anti -dumping duties on 
Russian AN imports . Russia argues that these  duties are based on WTO -incon sistent dumping 
 
905 Regulation  999/2014, (Exhibit  RUS-66), recital  50.  
906 Regula tion 999/2014, (Exhibit  RUS-66), recital  46. 
907 Regulation  999/2014, (Exhibit  RUS-66), recital  7.  
908 Russia's first written submission, para.  966. See also Russia's second written submission, 
paras.  1157 (d) and 1159 for the case of Yara France and para.  1157 (e) for the case of Grow How, and 
Russia's response to Panel question No. 46, paras.  216-221. 
909 See para. 7.451  above.  
910 See paras. 7.439 -7.440  above; Russia's first written submission, para s. 631 and 966; and 
Regulation  999/2014, (Exhibit  RUS-66), recital  19. 
911 See para. 7.441  above, as well as Russia's first written submission, paras.  635 and 978.  
912 See para 7.440  above, as well as Russia's first written submission, para. 966. See also, 
Russia's  second written submission, paras. 1157 (d) and 1159 for the case of Y ara France and para. 1157 (e) 
for the case of GrowHow; Russia's response to Panel question No. 46, paras. 216 -221. 
913 See para. 7.318  above.  WT/DS494/R  
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  margins that were extended and relied on in subsequent regulations .914 Russia describes its 
claims  #12 to #15 as follows:  
In this claim, the Russian Federation challenges the levying of the individual 
anti-dumping duties on AN of EuroChem, which were set with the use of the 
WTO-inconsistent cost adjustment for natural gas and extended,  and maintained under 
Regulation  (EU) 999/2014, and currently applied in the amended amounts.915  
7.585.   Thus, for the purpose of these claims, what we are examining is not  the alleged dumping 
determination in Regulation  999/2014, but rather whether the European Union's continuous levying 
of the anti-dumping duties, itself, is inconsistent with its obligations.  
a. Under claim  #12, Russia argues that the duties on EuroChem, which were extended and 
maintained by Regulation  999/2014 and are currently applied by virtue of 
Regulation  1722/2018 , were calculated using  a WTO -inconsistent cost adjustment for 
natural gas, violating  Articles  11.1, 9.3 , and 1 of the Anti-Dumping Agreement and  
Article  VI:2 of the GATT 1994, because the original dumping margins were incorrectly 
established under  Articles  2.2.1.1, 2.2.1 , and 2.2 of the Anti-Dumping Agreement  and 
Articles  VI:1(b)(ii) of the GATT 1994.916 
b. Under claim #13, Russia argues that the European  Union violated  Article  11.3 of the 
Anti-Dumping  Agreement because the dumping margins on which the European  Union 
relied upon to extend the duration of anti -dumping duties were calculated inconsistently 
with Articles  2.2.1.1 , 2.2.1 , and 2.2 of the Anti -Dumping Agreement.917 
c. In claim  #14, Russia argues that the country -wide duties extended by 
Regulation  999/2014 and the duties currently applied on ammonium nitrate by virtue of 
Regulation  1722/2018 were calculated according to a  methodology applicable to a 
non-market economy, which does not conform to the provisions of  Articles  2.1, 2.2, 9.3 , 
and 11.3 of the Anti -Dumping Agreement, as well as  Articles  I:1, VI:1 , and VI:2 of the 
GATT 1994. These country -wide duties were initially calculated in the context of the expiry 
and interim reviews of 2002, using surrogate values for the establishment of the normal 
value.918  
d. Finally, under claim  #15, Russia claims  that the  European  Union violated  Articles  1 
and 18.1 of the Anti -Dumping Agree ment because the anti -dumping measures on AN from 
Russia were not  determined in accordance with the provisions of  Articles  VI:1, and VI:2 of 
the GATT  1994, as interpreted by the Anti -Dumping Agreement.919 
7.586.   With regard to the measure at issue in each case, we note that claims  #12 to #15 challenge 
the continuous imposition and levy of anti -dumping duties on Russian AN imports, whereas such 
duties are based on allegedly WTO -inconsistent dumping margins that wer e extended and relied on 
through Regulation s 999/2014 and 1722/2018.   
7.587.   The relevant dumping margins – on the basis of which the anti -dumping duties continue to 
be levied – were set in Regulation 661/2008 for EuroChem and Regulation 658/2002 for all other 
producers.  
7.588.   Russia argues that the Anti -Dumping Agreement, including  Article  18.3 and  Article  VI of the 
GATT  1994, do not set any temporal scope of applicability of the GATT and the Anti -Dumping 
Agreement on the "continuous levying of anti -dumping duties", which Russia challenges as a 
separate measure. Here, Russia refers to  Article  VI (6)(a) of the GATT 1994, which provides that 
"[n]o contracting party shall levy any anti -dumping … duty on the importation of any product of the 
territory of another contracti ng party unless it determines that the effect of the dumping … is such 
as to cause or threaten material injury to an established domestic industry". Russia argues that  
 
914 Russia's second written submission, paras.  1016-1017.  
915 Russia's first written submission, para.  742. 
916 Russia's first written submission, paras.  741-742. 
917 Russia's first written submission, para.  845. 
918 Russia's first written submission, paras.  871-896, 905, and 915.  
919 Russia's first written submission, para.  908. WT/DS494/R  
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  Article  VI of the GATT 1994 prohibits a contracting party from assessing an anti -dumping  duty on 
imported goods "unless there has been a demonstration that the imported goods are dumped and 
the effect of the dumping is to cause material injury." According to Russia, since this requirement is 
tied to the assessment and collection of duties, it  imposes ongoing obligations with respect to both 
dumping and injury throughout the life of the anti -dumping measure.  
7.589.   The European  Union responds  that: 
Russia challenges the levying of individual anti -dumping duties on AN of EuroChem and 
the levying of co untry -wide anti -dumping duties on AN from Russia. The level of duties 
that are currently levied are set in Regulation  2018/1722. This Regulation  does not 
contain a dumping determination. It only contains a likelihood of recurrence of injury 
determination and sets an injury margin as part of the interim review. The duty levels 
are based on the injury margin. The current level of duties that are levied can thus not 
be affected by any of the WTO -inconsistencies that Russia alleges with regard to  the 
dumping determination.  
… 
[Additionally] the European  Union notes that the fact that duties, set before Russia 
acceded to the WTO, were maintained in Regulation  999/2014 is no longer relevant. 
This is because the duty levels that are currently levied are determined solely by 
Regulation  2018/1722. It is thus this Regulation  2018/1722 that is the relevant source 
of the duty levels that Russia complains about.920 
7.590.   Further, t he European  Union submits  that Russia's argument that "because duties keep 
being levied, any previous related anti -dumping determinations, whether WTO law applied to them 
or not, become open to challenge" must be rejected. This is so, according to th e European Union , 
because it would read  Article  18.3 (which it argues also applies to the GATT 1994) out of the 
Anti-Dumping Agreement and improperly allow Russia to rely on the rights contained in the 
Anti-Dumping Agreement retroactively. Additionally, th e European  Union argues that  
Article  VI (6)(a) of the GATT 1994 suggests that the rules of the covered agreements on 
anti-dumping do not apply to a determination unless both the party imposing the measure and the 
affected party are WTO  Members, or contract ing parties to the GATT 1994, when the determination 
is made.  
Analysis  
7.591.   We recall that  the Anti-Dumping Agreement only applies to those parts of a 
pre-WTO measure that are included in the scope of a post -WTO review.  If there are elements of 
pre-WTO determi nations which were subject to review in either Regulation  999/2014 or 
Regulation  1722/2018 , then these elements c ould be examined by this Panel . On the contrary,  if the 
pre-WTO determinations referenced by Russia in claims  #12 to #15 were not the subject of a review, 
but were merely referenced or maintained, they are not subject to the Anti-Dumping Agreement.  
7.592.   The Panel takes note of Brazil – Desiccated Coconut , in which the panel made the following 
statement about  Article  32.3 of the SCM Agreement, a provision which prescribes a similar rule on 
the temporal scope of the SCM Agreement than  Article  18.3 of the Anti -Dumping Agreement :  
If … a panel could examine in the light of the SCM Agreement the continued collection 
of a dut y even where its imposition was not subject to the SCM Agreement, and if … 
that examination of the collection of the duty extended to the basis on which the duty 
was imposed, then in effect the determinations on which those duties were based would 
be subje ct to standards that did not apply – and which, in the case of determinations 
made before the WTO Agreement was signed, did not yet even exist – at the time the 
 
920 European Union's response to Panel question No. 38, paras.  112 and 114. See also 
European  Union's  first written submission, paras.  353, 357 , and 369 -370. WT/DS494/R  
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  determinations were made. In our view, such an interpretation would be contrary to the 
object a nd purpose of  Article  32.3 and would render that  Article  a nullity.921 
7.593.   In claims  #12 to #15 , Russia claims  that it challenges  the continuous levying of the 
anti-dumping duties and not, in themselves, the determinations of dumping and dumping margins . 
It is apparent however that, without a finding of violation under  Article  2 of the 
Anti-Dumping  Agreement , Russia's challenge cannot succeed. Its claims  of violation regarding the 
continuous levying of the duties are predicated upon the allegation  that vari ous dumping 
determinations and dumping margins made prior to Russia's accession to the WTO were calculated 
in contravention of the rules of the Anti -Dumping Agreement . Having regard to the above discussion, 
the Panel cannot see how those pre -WTO determinat ions can be made subject to Anti-Dumping 
Agreement obligations now, without rendering  Article  18.3 of the Anti-Dumping Agreement inutile.  
7.594.   With regard to claim  #12, Russia argues that the European  Union levied and continues 
levying anti -dumping duties in br each of its obligations under  Articles  9.3, 11.1 , and 1 of the 
Anti-Dumping Agreement and  Article  VI:2 of the GATT 1994. Each of these provisions relates to the 
margin of dumping as determined under other relevant provisions of the Anti -Dumping Agreement. 
For example,  Article  9.3 states that the amount of the anti -dumping duty shall not exceed the margin 
of dumping as established under  Article  2. Key here is the fact that at the time that the relevant 
authority calculated the dumping margin, the European  Union did not have obligations under the 
Anti-Dumping Agreement with regard to Russia, a non -WTO Member. To require that the 
European  Union establish its dumping margin in accordance with WTO rules prior to 
Russia's  accession would be to apply those rules retroactively. Therefore, we are of the view  that it 
is unnecessary to examine the dumping margin calculations for the purposes of this claim, due to 
the fact that, at the time they were calculated, they could not be calculated inconsistently with  
Articles  2.2.1, 2.2.1.1 , and 2.2 of the Anti -Dumping Agreement because that Agreement did not 
apply to those calculations. Consequently, any continuous  levying of anti -dumping duties based on 
those margins would not be in violation of  Articles  11.1, 9.3, and 1 of the Anti -Dumping Agreement 
and Article  VI:2 of the GATT 1994 if the reason for that alleged violation stemmed from a breach of 
the rules applyi ng to their calculation according to  Articles  2.2.1.1, 2.2.1 , and 2.2 of the 
Anti-Dumping Agreement and  Articles  VI:1(b)(ii) of the GATT 1994. Thus, the Panel is not able to 
find that the anti -dumping duties applied on EuroChem are inconsistent with the 
European  Union's  obligations under  Articles  11.1, 9.3, and 1 of the Anti -Dumping Agreement and  
Article  VI:2 of the GATT  1994 on the basis that the original dumping determination was calculated 
inconsistently with  Articles  2.2.1.1, 2.2.1 , and 2.2 of the Anti -Dumping Agreement.  
7.595.   The same reasoning applies to claim  #13. There was no obligation on the European  Union 
to calculate dumping margins in line with  Articles  2.2.1.1, 2.2.1 , and 2.2 of the 
Anti-Dumping  Agreement in the 2008 expiry review and, as such, any consequent claim that relies 
on a calculation which was allegedly not made in accordance with those provisions cannot be 
demonstrated to be in contravention of the Anti-Dumping Agreement. As the European  Union 
argues, it did not act inconsistently with the Anti-Dumping Agreement when it determined whether 
the domestic Russian sales of AN products were in the ordinary course of trade.922 As there was no 
obligation on the European  Union to calculate dumping margins in line  with Articles  2.2.1.1, 2.2.1 , 
and 2.2 of the Anti -Dumping Agreement in the past, it stands to reason that this, in itself, cannot 
be a cause for violation of  Article  11.3 of the Anti-Dumping Agreement.  
7.596.   Similar reasoning applies  to claims  #14 and #15.  
7.597.    Where Russia argues , in its claim  #14, that the European  Union imposed and continues 
levying country -wide anti -dumping duties for which the dumping margin was calculated in 2002 with 
the use of an allegedly WTO -inconsistent methodology, we recall again that Russia was not a 
WTO Member when the European  Commission  made the dumping margin determination in 2002 and 
thus there was no obligation on the European  Union to calculate that dumping margin consistently 
with WTO law.  
7.598.   Finally, in claim  #15, Russia arg ues that the European Union acted inconsistently with  
Articles  1 and 18.1 of the Anti-Dumping  Agreement due to the fact that the anti-dumping measures 
were not taken in accordance with provisions of  Articles  VI:1 and VI:2 of the GATT, as interpreted 
 
921 Panel Report, Brazil – Desiccated C oconut , para.  230 
922 European Union's first written submission, para.  406. WT/DS494/R  
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  by the  Anti-Dumping Agreement, including  Articles  2.1, 2.2, 2.2.1, 2.2.1.1, 3.1, 3.2, 3.4, 9.3 , 
and 11.3.923 This claim  is consequential on findings that the continuous levying of anti -dumping 
duties described in previous claims  is inconsistent with WTO law. As t he Panel has not found that 
those measures can be proved to be WTO -inconsistent, Russia's claim  #15 cannot be upheld.  
7.599.   For the foregoing reasons, we reject Russia's claims  #12 to #15 in their entirety.  
Claims with respect to the conduct of the expiry review leading up to 
Regulation  999/2014  
7.600.   Russia makes a series of procedural claims  regarding the conduct  of the expiry review 
leading to Regulation  999/2014. Russia's claims  #16 to #21 are made on the basis  of various 
provisions of  Article  6 of the Anti -Dumping Agreement regarding "Evidence".  
7.601.   Since the measure at issue is the regulation implementing the results of an expiry review, 
Russia also claims  corresponding violations of  Article  11.4 of the Anti -Dump ing Agreement.  
Article  11.4 provides that "[t]he provisions of  Article  6 regarding evidence and procedure shall apply 
to any review carried out under [Article  11]." Should the Panel consider that the European  Union 
has violated the provisions of  Article  6 of the Anti -Dumping Agreement in the conduct of the third 
expiry review, we would thus also find that the European  Union is in breach of  Article  11.4.  
Russia's claim  concerning alleged delays in giving access to the non -confidential 
file ( claim  #16)  
Intro duction  
7.602.   Russia submits that on four occasions, representatives of Russian exporters were confronted 
with excessive delays when requesting access to evidence provided by the domestic industry.924  
a. Russia explains that o n 10 March 2014, representatives of the Russian exporters ("RFPA") 
requested access to the non -confidential file. A reminder was sent to the 
European  Commission  on 26 March. Access was only granted on 1 April. Russia argues 
that, because of this delay of 22 days, RFPA was prevented to see two submissions made 
by the domestic industry (on 10 March and on 20 March) and therefore did not have 
sufficient time to prepare for a hearing which took place on 14 March and to prepare a 
meaningful written submission before 25 April  2014.925  
b. Then, o n 2 June 2014, RFPA again requested access to the file, but access was only granted 
on 16 June, following a repeated request on 12 June 2014. In this case, Russia does not 
refer to specific documents on the file but criticizes the excessiv e delay between 
RFPA's  request and the  actual consultation of the file .926  
c. Third,  according to Russia, submission s dated 16 and 17 April were only added to the 
non-confidential file on 13 May 2014 .927 Russia submits that this excessive delay prevented 
RFPA from commenting on these submissions until 27 May 2014.  
d. Finally , Russia alleges that documents dated 12 May 2014 were only  added to the 
non-confidential file on 27 May 2014 .928 
7.603.   Russia asks the Panel929 to rule that the delays experienced by Russian exporters  in these 
four instances are inconsistent with the obligation in  Article  6.1.2 of the Anti -Dumping Agreement 
 
923 Russia's first written submission, para.  915. 
924 Russia's first written submission, para.  1094.  
925 Russia's first written submission, paras.  1095-1097; response to Panel question No.  105. In its 
response to question No. 105 of the Panel, Russia confirms that the evidence at issue are the submissions of 
10 and 20 March and that its claim  concerns the delayed access to these two submissions but also, "in general, 
the delayed access to t he non -confidential file".  
926 Russia's first written submission, paras.  1099-1101.  
927 Russia's first written submission, para.  1102.  
928 Russia's first written submission, para.  1103.  
929 Russia's response to Panel question No. 48.  WT/DS494/R  
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  to make evidence presented by one interested party available "promptly" to other interested parties. 
Russia also makes a claim  under  Article  6.4 of  the Anti -Dumping Agreement that the 
European  Commission  did not provide "timely opportunities" for the representatives of Russian 
exporters to see all information relevant to the presentation of their cases and to prepare 
presentations on the basis of this information.  
Analysis  
7.604.   We consider first Russia's claim  under  Articles  6.1.2 and 11.4 of the 
Anti-Dumping  Agreement.930  
7.605.   Article  6.1.2 states:  
Subject to the requirement to protect confidential information, evidence presented 
in writing by one interested party shall be made available promptly to other interest ed 
parties participating in the investigation.  
7.606.   As the European Union argues, i t has previously been found931 that the obligation to make 
evidence available "promptly" does not mean that authorities must make such evidence available 
"immediately", i.e. as so on as the information is provided by an interested party to the authority, 
nor as soon as a party requests access to the file.932 The context of the proceeding in question and 
the format and content of the evidence provided may justify that an authority tak e some time to 
update the non -confidential file. This is the case in particular when the evidence provided contains 
confidential information: before such information can be added to the non -confidential file, the 
authority needs to ensure that confidential  data is adequately redacted, and that the non -confidential 
summary complies with the requirements of  Article  6.5.1 of the Anti -Dumping Agreement.  
7.607.   In its second written submission , the European  Union explains generally how the 
European  Commission  gives ac cess to the non -confidential file when a request is lodged by an 
interested party. In particular, the European  Union explains that "this procedure involves several 
steps which may take a number of days (depending, for example, on whether confidential treat ment 
was sought)".933 The European  Union further explains that documents filed by interested parties are 
first "registered", "which means simply that receipt is confirmed" and that:  
The document would then need to be processed, classified, and confidential ity checks 
would need to be made (i.e. whether any confidential information is disclosed, or 
conversely, whether non -confidential information is withheld or if there is good cause 
for confidentiality). This would require more time, depending on the nature and 
complexity of the document. Only after all this would the document be available to the 
interested parties (i.e. "on the open file").934 
7.608.   The European  Union also insists that "[only] delays that can be attributed to the Commission 
… can be the basis for a ny finding" under  Articles  6.1.2 and 6.4 of the Anti -Dumping Agreement .935 
With regard to the computation of delays, the European  Union argues that "any delays in providing 
a document could only be calculated from the date of the request (not from the placi ng on the file, 
and certainly not from the date of the document) to the date of the provision of access (not to the 
actual access)".936  
7.609.   We agree with the European  Union that delays originating in the sole conduct of the 
interested parties cannot give rise to an inconsistency with  Articles  6.1.2 and 6.4 of the 
Anti-Dumping  Agreement . We note however that, based on the evidence on the record, the alleged 
 
930 We recall that Article  11.4 of the Anti -Dumping Agreement provides that "[t]he provisions of Article  6 
regarding evidence and procedure shall apply to any review carried out under [Article  11]." A breach of 
Article  6.1.2 would therefore necessarily constitute a breach of Article  11.4. 
931 Panel Report, EU – Footwear (China),  para. 7.583.  
932 European Union's first written submission, para.  575. 
933 European Union's second written submission, para.  222. 
934 European Union's response to Panel question No. 105. See also the description given at para.  221 of 
the European Union's second written submission.  
935 European Union's second written submission, para.  223. 
936 European Union's response to Panel question No.  105, para.  125. WT/DS494/R  
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  delays challenged by Russia can be attributed to the European  Commission : they concern the 
placement of evidence on the non -confidential file as well as the granting of access to the file (in the 
form of a DVD -Rom provided to the representatives of the parties).937  
a. In relation to the first alleged delay in granting access to the non -confidential file 
(March -April 2014), Russia provides evidence showing that the representatives of RFPA 
lodged a request on 10 March and again on 26 March, and received an invitation to consult 
the file on 1 April.938  
b. In relation to the second alleged dela y in granting access to the non -confidential file (June 
2014), Russia provides evidence showing that the representatives of RFPA lodged a 
request on 2 June and that the DVD containing the file was consulted on 16 June.939 
The European  Union notes that the e xhibit submitted by Russia refers to 16 June as the 
date of consultation, rather than the date on which access was actually granted.940 
In response , the European  Union does not provide the Panel with evidence contradicting 
Russia's argument that the non -confidential file was made available on 16  June 2014.  
c. In relation to the two alleged delays in inserting documents in the non -confidential file 
(April and May 2014), Russia provides evidence941 that submissions dated 16/17 April and 
12 May 2014 were placed in  the non -confidential file respectively on 13 May and 27 May.942 
7.610.   We note that the panel in Guatemala – Cement II  stated that, under  Article  6.1.2 of the 
Anti-Dumping  Agreement, access to the non -confidential file must be "regular and routine". 
The panel fur ther elaborated:  
The Article  6.1.2 proviso regarding the "requirement to protect confidential 
information", when read in the context of  Article  6.5, cannot be interpreted to allow an 
investigating authority to delay making available evidence submitted by one interested 
party to another interested party for 20 days simply because of the possibility – which 
is unsubstantiated by any request for confidential treatment from the party submitting 
the evidence – that the evidence contains confidential information . We do not believe 
that the specific requirement of  Article  6.1.2 may be circumvented simply by an 
investigating authority determining that there is a possibility that the evidence at issue 
contains confidential information. Such an interpretation could u ndermine the purpose 
of Article  6.1.2, since in principle there is a possibility that any evidence could contain 
confidential information (and therefore not be "made available promptly" to interested 
parties).943 
7.611.   The four instances criticized by Russia show  that it took the European  Commission  two to 
three weeks to grant access to the file or to update the file after a submission had been made. 
In two instances, the interested party requesting access had to renew its request (on 26 March in 
the first instanc e and on 12 June in the second instance). Under these circumstances and in the 
absence of any convincing explanation from the European  Union justifying such delays944, we 
 
937 European Union's first written submission, para.  581. 
938 Comments by RFPA on the definitive disclosure (8  July 2014), (Exhibit  RUS-79 (BCI)).  
939 Comments by RFPA on the definitive disclosure (8  July 2014), (Exhibit  RUS-79 (BCI)).  
940 Europe an Union's first written submission, para.  591. 
941 Index NC File , (Exhibit  RUS-188 (BCI)).  
942 The European Union challenges the evidence provided by Russia with regard to the fourth alleged 
delay (May 2014): the European Union states that the submission date d 12 May 2014 was only received on 
14 May by registered mail and "was inserted into the non -confidential file on the same day" . 
(European  Union's  first written submission, para.  599 and Confirmation of the receipt of a submission of 
Fertilizers Europe (14  May 2014), ( Exhibit  EU-20)). We note however that the European Union does not 
provide any evidence that the DVD -Rom containing the non -confidential file was made available before 
27 May: Exhibit  EU-20 is evidence of the date of receipt and regis tration of the submission by the 
European  Commission , but does not contain any information on the date on which the non -confidential file was 
provided to the interested parties.  
943 Panel Report, Guatemala – Cement II , para.  8.143. (fn omitted)  
944 We note th e European Union's reference to "technical and personnel constraints" . 
(European  Union's  first written submission, para.  584). In relation to the third alleged delay, the 
European  Union indicates that the European  Commission  was closed between 17 and 21 Ap ril 2014 . 
(European  Union's  response to Panel question No. 107, para.  135). WT/DS494/R  
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  consider that the time taken by the European  Commission  to make the evidence available to the 
requesting party is not consistent with the obligation to make the evidence available "promptly".  
7.612.   The European  Union makes an additional argument with regard to the second alleged delay 
(request to see the file on 2 J une and access granted on 16 June). According to the European Union,  
Articles  6.1.2 and 6.4 do not "concern 'access to the file' in the abstract; instead they relate to 
'evidence' and 'information'."945  
7.613.   We note however that the obligation contained in  Article 6.1.2 refers to "evidence presented 
in writing by one interested party", without specifying in what form an authority must give access 
to this evidence. We recall that the panel in Guatemala – Cement II  stated:  
On their face, neither  Article  6.1.2 nor  Article  6.4 necessarily require access to the file. 
For example, if an investigating authority required each interested party to serve its 
submissions on all other interested parties, or if the investigating authority itself 
undertook to provide copies of  each interested party's submission to other interested 
parties, there may be no need for interested parties to have access to the file. If, 
however, there is no service of evidence by interested parties, or no provision of copies 
by the investigating auth ority, access to the file may be the only practical means by 
which evidence presented by one interested party could be "made available promptly" 
to other interested parties (consistent with  Article  6.1.2), or by which interested parties 
could have "timely opportunities" to see information relevant to the presentation of their 
cases (consistent with  Article  6.4). Assuming access to the file is the only practical 
means of complying with  Articles  6.1.2 and 6.4, access to the file need not necessarily 
be unlimi ted. Nor need the file be made available on demand. Provided access to the 
file is regular and routine, we consider that the requirements of  Articles  6.1.2 and 6.4 
would be satisfied.946 
7.614.   In the present case, the European  Union does not argue that the eviden ce was available to 
representatives of Russian exporters in any other way than by requesting access to the file. Neither 
does the European  Union argue that the European  Commission  routinely informs interested parties 
that a specific piece of evidence has b een placed on the non -confidential file. Therefore, it is only 
through a regular and routine access to the non -confidential file that RFPA may learn which evidence 
has been placed on the file. It is thus only by granting regular and routine access to the f ile that the 
European  Union could, in the circumstances of this case, fulfil its obligation to make the evidence 
available promptly.  
7.615.   We thus consider that the European Union, in the four instances raised by Russia, did not 
comply with the obligation conta ined in  Articles  6.1.2 and 11.4 to make the evidence available 
promptly.  
7.616.   Since we have already ruled that the European  Union was in breach of  Article  6.1.2 of the 
Anti-Dumping Agreement, we do not find it necessary to examine Russia's claim under  Article  6.4.  
Russia's claim  that the European  Union failed to provide to the interested parties 
the full text of the application received on 28 March 2013 ( claim  #17)  
Introduction  
7.617.   Russia submits that following the publication of a notice of impending expiry of th e 
anti-dumping measures on ammonium nitrate, Fertilizers Europe filed a petition on behalf of 
EU domestic producers on 28 March 2013.947 The review was initiated through the publication of a 
Notice of initiation dated 12 July 2013, which references the peti tion lodged by the domestic industry 
on 28 March. Russia submits however that RFPA obtained the petition only after the expiry review 
had been completed and after the EU Ombudsman made a recommendation to provide the relevant 
document.948 Russia claims  that, by not providing the full text of the petition upon initiation, the 
 
945 European Union's first written submission, para.  590. 
946 Panel Report, Guatemala – Cement II , para.  8.133.  
947 Russia's first written submission, para.  1126.  
948 Russia's first writte n submission, para.  1133.  WT/DS494/R  
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  European  Union breached  Articles  6.2, 6.4 , and 6.1.3 of the Anti -Dumping Agreement, as well as  
Article  11.4.  
7.618.   The European  Union responds that, following pre -initiation , discussions with the interested 
parties requesting the expiry review949, Fertilizers Europe completed its initial request on 
8 May 2013950 and the request was inserted in the non -confidential file on 14 June 2013. The 
European  Commission  then initiated the expiry review on 12 July 2013. On 5 August 2013, the 
European  Commission  refused to provide to RFPA the text of the petition filed on 28 March because 
that complaint "was not final" .951  
7.619.   According to the European Union, a "consolidated v ersion" of Fertilizers Europe's requests 
was provided to the interested parties upon initiation of the expiry review: the European  Union 
argues that the consolidated request "contained all of the 'text' and 'information' that the 28 March 
submission also c ontained". It also submits that providing the consolidated request was sufficient to 
comply with  Articles  6.1.3 and 6.4 of the Anti -Dumping Agreement, since "n either  Article  6.1.3 nor  
Article  6.4 refer to specific documents or submissions, in particular ve rsions or forms, or dated on a 
particular day. "952 
Analysis  
7.620.   We consider first Russia's claim  under  Article  6.1.3 and 11.4 of the 
Anti-Dumping  Agreement.953  
7.621.   Article  6.1.3 of the Anti -Dumping Agreement provides in relevant part:  
As soon as an investigation h as been initiated, the authorities shall  provide the full text 
of the written application received … to the known exporters and to the authorities of 
the exporting Member and shall make it  available, upon request, to other interested 
parties involved.954 
7.622.   As pointed out by Russia, the obligation imposed under  Article  6.1.3 is relevant in the context 
of an expiry review by virtue of  Article  11.4 of the Anti -Dumping Agreement, which provides that 
"[t]he provisions of  Article  6 regarding evidence and procedure s hall apply to any review carried out" 
under  Article  11.3.955 The obligation in  Article  6.1.3 thus applies to the expiry review at issue.  
7.623.   The question for the Panel is therefore whether granting access to a "consolidated" version 
of the petition upon initia tion of the expiry review was sufficient to comply with the requirement 
(under  Article  6.1.3 of the Anti -Dumping Agreement) to " provide the full text of the written 
application received ".  
7.624.   We note that the notice of initiation of the expiry review referenc es the original petition of 
28 March 2013 as the basis for initiating the investigation.956 In addition, Russia demonstrates, in 
response to a question from the Panel, that the text of the consolidated petition was different from 
 
949 European Union's second written submission, para.  228. 
950 European Union's first written submission, para.  606. 
951 Russia's first written submission, para.  1129 ( quoting  Decision dated 5 August 2013 from the 
European  Commission,  (Exhibit  RUS-110)).  
952 European Union's second written submission, para.  230.  
953 We recall that Article  11.4 of the Anti -Dumping Agreement provides that "[t]he provisions of Article  6 
regarding evidence and procedure shall apply to any review carried out und er [Article  11]." A breach of 
Article  6.1.3 would therefore necessarily constitute a breach of Article  11.4.  
954 Fn omitted.  
955 Russia's first written submission, para.  1118.  
956 Notice of initiation, (Exhibit  RUS-48): "[t]he request was lodged on 28 March 20 13 by a European 
association of fertilisers manufacturers, Fertilizers Europe (the applicant), on behalf of Union producers 
representing more than 25%, of the Union production of ammonium nitrate." The notice of initiation does not 
refer to the updated req uest presented by Fertilizers Europe on 8 May 2013. In this regard, we note that the 
European Union recognizes that "the 'request' which needs to be disclosed under Article  6.1.3, and which 
constitutes the 'relevant' information that was actually 'used' by  the authority within the meaning of 
Article  6.4, is the request on the basis of which the expiry review was initiated." (European Union's second 
written submission, para.  228).  WT/DS494/R  
BCI deleted, as indicated [[***]] 
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  the text of the original pe tition.957 Further, contrary to what the European  Union argues958, 
Article  6.1.3 of the Anti -Dumping Agreement does refer to a specific document, namely the " full text  
of the written application received".959  
7.625.   For these reasons, we conclude that the European  Union did not comply with its obligation 
to make the full text of the petition available to the interested parties upon initiation of the expiry 
review and therefore was in breach of  Articles  6.1.3 and 11.4 of the Anti -Dumping Agreement.  
7.626.   Since we  have already ruled that the European  Union was in breach of  Article  6.1.3 of the 
Anti-Dumping Agreement, we do not find it necessary to examine Russia's claims  under  Articles  6.2 
and 6.4.  
Russia's claim  that the European  Commission  granted confidential t reatment 
without a showing of good cause ( claim  #18)  
Introduction  
7.627.   Russia challenges  the partially confidential treatment granted by the European  Commission  
to two expert reports submitted as evidence by the domestic industry.  
7.628.   The first submission960 at iss ue is dated 20 March 2014 and contains a "third party expert 
report relating to the capacity of the Russian AN industry".961 While the report itself was made 
available, the party submitting the information did not disclose the identity of the author of the 
report because:  
[R]evealing its identity could "be harmful to the supplier of this information" because 
"the survey does id entify the situation per Russian AN producer per plant, and not only 
the Russian plants surveyed/sampled by the European  Commission "962. 
7.629.   The second submission963 is dated 14 May 2014. It contains a non -confidential version of a 
presentation, but indicates th at its Annex I ("an independent expert report on N2O emissions from 
nitric acid production in key regions") is confidential.  
7.630.   According to Russia, "the EU did not request Fertilizers Europe to show good cause for 
confidential treatment of such information and thus failed to carry out an objective assessment as 
to whether such confidential treatment was warranted"964. For Russia such granting of confidential 
treatment without any showing of good cause amounts to a violation of  Articles  6.5 and 11.4 of the 
Anti-Dumping Agreement.  
7.631.   We note that the parties disagree on the exact scope of Russia's claim  under  Article  6.5. 
According to the European Union965, Russia's claim  that the European  Union violated  Article  6.5 is 
"limited to the 'identity of the supplier' of the information at issue, i.e. to the source or author of the 
expert report." However, in response to questions posed by the Panel after the first 
substantive  meeting, Russia indicates that the references to the identity of the experts were merely 
"examples … [which were] part of a 'non-exhaustive ' list" of occasions in which the 
European  Commission  failed to request that good cause be shown.966  
 
957 Russia's response to Panel question No. 53, para.  257.  
958 European Union's second written submission, para.  230. 
959 Emphasis added.  
960 Fertilizers Europe's submission (20 March 2014) (excerpts) , (Exhibit  RUS-117 (BCI)).  
961 Russia's first written submission, para.  1154.  
962 Email correspondence dated 29 April and 9 May 2014 between the Commission and Fertilizers 
Europe, (Exhibit  EU-25).  
963 Fertilizers Europe's submission (14 May 2014) (excerpts), (Exhibit  RUS-94 (BCI)).  
964 Russia's first written submission, paras.  1153-1154. The European Union asks the Panel to reject all 
other instances of alleged failure to show good cause, cited by the Russian Federation in its response to Panel 
question No. 55.  
965 European Union's first written submission, para.  624. 
966 Russia's response to Panel question No. 55.  WT/DS494/R  
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  7.632.   Before turning to the substance of Russia's claim, we note that, in its first written submission, 
Russia provides a "non -exhaustive" list of oc casions in which confidential treatment was granted by 
the European  Commission  without good cause.967 This "non -exhaustive" list focuses on the alleged 
failure, by the European  Commission  to obtain a showing of good cause from Fertilizers Europe for 
not rev ealing the identity of the author of the expert reports.968 We recall that section 3(1) of the 
Working Procedures of this Panel states that each party to the dispute shall:  
Before the first substantive meeting of the Panel with the parties, … submit a writt en 
submission in which it presents the facts of the case and its arguments, in accordance 
with the timetable adopted by the Panel.  
7.633.   We agree with the European Union969 that Russia should not be permitted to make a 
non-exhaustive list of arguments in its firs t written submission and to complete this "list" in its 
responses to questions posed by the Panel. This would not be consistent with the Working Procedures 
of this Panel and would affect the ability of the European  Union to prepare and present its defence.  
We therefore construe Russia's claim  under  Article  6.5 of the Anti -Dumping Agreement as being 
limited to the arguments presented in its first written submission, which concern the alleged failure 
of the European  Union to request a showing of good cause fr om the domestic industry, when granting 
confidential treatment to the identity of the author of the two expert reports cited in Russia's first 
written submission. We will limit our examination to this aspect of Russia's claim.  
Analysis  
7.634.   Article  6.5 of the Anti-Dumping Agreement provides, in relevant part, that:  
Any information which is by nature confidential … or which is provided on a confidential 
basis by parties to an investigation shall, upon good cause shown, be treated as such 
by the authorities.  
7.635.   Showing good cause is thus a "condition precedent for according confidential treatment to 
information submitted to an authority".970 Where an investigating authority treats as confidential 
information in respect of which no good cause has been shown, that inv estigating authority acts 
inconsistently with its obligation under  Article  6.5. 
7.636.   We recall that, in reviewing whether an investigating authority has assessed and determined 
objectively that "good cause" for confidential treatment has been shown to exist, it is not for the 
panel to engage in a de novo  review of the record of the investi gation and determine by itself whether 
the existence of "good cause" has been sufficiently substantiated by the submitting party.971 A panel 
must examine this issue on the basis of the investigating authority's published documents, in the 
light of the natur e of the information at issue, and the reasons given by the submitting party for its 
request for confidential treatment.972 We also recall that "good cause" must demonstrate the risk of 
a potential consequence, the avoidance of which is important enough to warrant the non -disclosure 
of the information.  
7.637.   In the present case, information on the record of these proceedings indicates that:  
 
967 Russia's first written submission, para.  1152.  
968 Russia states that the European Union "did not take into account the rights of defence of interested 
parties in accepting unwarranted confidentiality claims  relating, inter alia,  to the identity of the supplier which 
is by nature non -confidential" . (Russia's first written submission, para.  1158). Russia also states that Fertilizers 
Europe did not "detail[] its claim  that the disclosure of the identity of certain  information provider may cause 
significantly adverse effect" . (Russia's first written submission, para.  1160). Finally, Russia argues that "there 
was no basis to assert that the disclosure of the identity of the supplier of the information may have advers e 
effects" . (Russia's first written submission, para.  1161) . 
969 European Union's second written submission, para.  207. The European Union adds that: " there is no 
reason why Russia could not have identified all of the additional instances of alleged WTO -inconsistency 
already in its first written submission (or even in its panel request): they all refer to documents that were 
provided to Russian interested parties during the expiry review, as Russia concedes ". (See ibid. para. 211).  
970 Appellate Body Report,  EC – Fasteners (China) (Article  21.5 – China) , para. 5.38. 
971 Appellate Body Reports, China – HP-SSST (Japan) / China – HP-SSST (EU) , para.  5.97.  
972 Appellate Body Report, EC – Fasteners (China) (Article  21.5 – China) , paras.  5.68-5.69. WT/DS494/R  
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  a. contrary to what Russia argues973, the investigating authority sought and obtained 
explanations from the party submitting th e confidential information974; and  
b. the information obtained from the author of the report indicates that revealing his or her 
identity could "be harmful to the supplier of this information" because "the survey does 
identify the situation per Russian AN producer per plant, and not only the Russian plants 
surveyed/sampled by the European  Commission ".975 
7.638.   Russia argues that the corres pondence between the party submitting the evidence and the 
European  Commission , reproduced in Exhibit  EU-25, fails to meet the standard for showing good 
cause under  Article  6.5 of the Anti -Dumping Agreement, because it " does not substantiate in which 
way t he expert could be subject to retaliation, except for mere potential subjective concerns which 
do not constitute "good cause" being shown ".976  
7.639.   The European  Union responds that the separate correspondence between the expert and the 
European  Commission  expla ins in detail why the identity of the expert could not be disclosed and 
that a risk of retaliation was considered in a past dispute as good cause for providing confidential 
treatment under  Article  6.5 of the Anti -Dumping Agreement.977  
7.640.   In this regard, we no te that a risk of retaliation alleged by participants in an investigation 
was found to constitute "good cause" .978 The panel in EU – Footwear (China)  considered that:  
[D]irect or concrete evidence substantiating concerns about potential retaliatory actions  
by customers is not likely to be obtainable. Thus, these concerns may well be evidenced 
only by the testimony of the submitter of the information for which confidential 
treatment is sought. Therefore, [in the panel's view] unless there is some reason to 
believe that the alleged risk of retaliation was unreasonable, unfounded or untrue, the 
absence of more concrete evidence supporting the alleged risk of retaliation does not, 
by itself, preclude the concern for possible retaliation from being good cause wit hin the 
meaning of  Article  6.5.979  
7.641.   Like the panel in EU – Footwear (China) , we believe that "direct or concrete evidence 
substantiating concerns about potential retaliatory actions by customers is not likely to be 
obtainable" and that the absence of more concrete evidence supporting the alleged risk of retaliation 
does not, by itself, preclude the concern for possible retaliation from being good cause within the 
meaning of  Article  6.5.  
7.642.   It is well established that good cause must be assessed and deter mined objectively by the 
investigating authority and cannot be determined merely based on the subjective concerns of the 
submitting party. In making that assessment, the investigating authority must seek to balance the 
submitting party's interest in protec ting its confidential information with the prejudicial effect that 
the non -disclosure of the information may have on the transparency and due process interests of 
other parties involved in the investigation to present their cases and defend their interests .980  
7.643.   In view of the documents on the record and of the reasons given by the submitting party in 
Exhibit  EU-25, we are of the view that the European  Commission  has assessed and determined 
objectively that the disclosure of the identity of the authors of the  expert report attached to the 
 
973 Russia argues that "the EU failed to comply with its obligations under Article  6.5 of the 
Anti-Dumping  Agreement by not requesting Fertilizers Europe to demonstrate the existence of good cause for 
the confidential treatment of the information it submitted in the course of th e investigation." (Russia's first 
written submission, para.  1156) . 
974 Email correspondence dated 29 April and 9 May 2014 between the Commission and Fertilizers 
Europe, (Exhibit  EU-25). See also, European Union's first written submission, para.  630. 
975 Email correspondence dated 29 April and 9 May 2014 between the Commission and Fertilizers 
Europe, (Exhibit  EU-25).  
976 Russia's second written submission, para.  1315.  
977 European Union's second written submission, para.  245 (quoting Appellate Body Report, 
EC – Fasteners (China) , para.  584).  
978 Panel Report, EC – Fasteners (China) , paras.  7.451 -7.452.  
979 Panel Report, EU – Footwear (China) , para.  7.685.  
980 Appellate Body Report, EC – Fasteners (China) , paras.  5.37-5.39. WT/DS494/R  
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  submission of 20 March 2014 would be detrimental to the person supplying the information and that 
"good cause" for confidential treatment had been shown to exist in this case.  
7.644.   Russia makes an additional argument with regard to the submission of 14 May 2014. Russia 
points out that the correspondence provided as Exhibit  EU-25 only provides "good cause" in relation 
to the submission of 20 March 2014, but not in relation to the submission of 14 May 2014.981 
The European  Union resp onds that "given that Russia appears to have understood from the 
underlying explanations that the same expert authored both reports, it was sufficient for the expert 
to show good cause for the confidential treatment of their identity once, with respect to both 
reports."982 In addition, for the European Union, "Article  6.5 does not require a showing of good 
cause in respect of each item of confidential information. Instead, depending on the information and 
the documents in question, good cause may be shown in  respect of general categories of 
information."983 
7.645.   We note that the correspondence provided by the European  Union as Exhibit  EU-25 concerns 
only the submission dated 20 March 2014. The submission dated 14 May 2014 explains that its 
Annex I is "limited" but does not provide any explanation as to why confidential treatment should 
be granted. In particular, contrary to what the European  Union argues , the interested party 
submitting the report does not claim  that the author of the two expert reports is the same,  nor that 
confidential treatment should be granted for the reasons explained in the 20 March submission. We 
therefore cannot accept the statement by the European  Union that the showing of good cause "made 
with respect to the earlier of those two reports … was equally relevant for the later one."984  
Conclusion  
7.646.   Based on the foregoing, we conclude that:  
a. The European  Union violated  Articles  6.5 and 11.4 of the Anti -Dumping Agreement by 
granting confidential treatment to the identity of the author of the exp ert report in Annex  I 
of the 14 May submission, without requesting or obtaining that the interested party 
submitting the information show good cause; in contrast ;  
b. Russia has failed to demonstrate that the E uropean Union acted inconsistently with  
Article  6.5 in relation to the submission dated 20 March 2014.  
Russia's claim  that the European  Commission  failed to request a meaningful 
summary ( claim  #19)  
Introduction  
7.647.   Russia's claim  #19 concerns four submissions made by the domestic industry in the course 
of the third expiry review985:  
a. submission of the EU domestic industry dated 12 May 2014  (Exhibit  RUS-83 (BCI)) ;  
b. submission dated 10 March 2014  (Exhibit  RUS-119 (BCI) );  
c. submission dated 5 May 2014  (Exhibit  RUS-120 (BCI) ); and 
d. submission dated 3 June 2014  (Exhibit RUS-121 (BCI) ).  
7.648.   Russia recognizes that in each case, the domestic industry provided a non -confidential 
summary in the form of aggregated figures.  
 
981 Russia's second written submission, para.  1310. 
982 European Union's second written submission, para.  242.  
983 European Union's second written submission, para.  243 (referring to Panel Report, Russia – 
Commercial Vehicles , para.  7.241).  
984 European Union's second written submission, para.  242. 
985 Russia's response to Panel question No. 57.  WT/DS494/R  
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  7.649.   However, for Russia, these aggregated figures were insufficient to obtain a reasonable 
understanding  of the information provided, mainly because the data was not presented by individual 
respondent and by sub -type of the product (AN, IGAN and stabilized AN).986 Russia considers that 
this information should have been requested by the European  Commission , in view of the importance 
of the product scope in this investigation. By not doing so, the European  Union allegedly breached  
Articles  6.5.1 and 11.4 of the Anti -Dumping Agreement.  
7.650.   The European  Union responds that:  
Because the analysis of likelihood of injury  is only meant to assess the domestic industry 
as a whole, aggregate figures for the industry as a whole, referring to categories of 
producers and not listing all of them by name, were a perfectly sufficient 
non-confidential summary.987 
7.651.   The European  Union further argues that "[d] ifferent methods of summarising confidential 
information are possible, and there is no requirement to prefer indexes over other methods ".988 
Analysis  
7.652.   Article  6.5.1 of the Anti -Dumping Agreement provides, in relevant pa rt, that:  
The authorities shall require interested parties providing confidential information to 
furnish non -confidential summaries thereof. These summaries shall be in sufficient 
detail to permit a reasonable understanding of the substance of the informa tion 
submitted in confidence.  
7.653.   The Appellate Body has previously found that the sufficiency of the non -confidential 
summary depends on the nature of the information summarized.989 At the same time, such 
summaries "must permit a reasonable understanding of t he substance of the information withheld 
in order to allow the other parties to the investigation an opportunity to respond and defend their 
interests." In Argentina  – Ceramic Tiles , the panel found that "the purpose of the non -confidential 
summaries … is to inform the interested parties so as to enable them to defend their interests."990 
We share this understanding of the content of the obligation in  Article  6.5.1.  
7.654.   We thus examine how the non -confidential information was presented in each one of the 
submiss ions at issue:  
a. In relation to the submission dated 12 May 2014, which contains "injury indicators 
covering total AN"991, Russia takes issue with  the European  Commission  for not defining 
the term "technical AN", nor providing a list of products falling unde r this label, nor 
identifying the names of the companies whose data was included in the respective 
tables.992 The non -confidential summary sets out the actual indicators, in an aggregated 
form, for each quarter of the review period.  
b. In relation to the subm ission dated 10 March 2014, which contains "injury data for all the 
EU complainants"993, Russia argues that the party submitting the information did not 
provide a non -confidential summary nor explain why such a summary could not be 
provided. Russia submits that "the information [was] simply left blank, whereas it could 
have been summarized, for instance, by providing indexes or ranges."994 We note however 
that the submission at issue contains a non -confidential summary of the injury indicators, 
in an aggregated form, for each quarter of the review period. We also note that some 
 
986 Russia's first written submission, para.  1173 (in relation to the submission dated 12 May 2014); 
Russia's response to Panel question No. 57.  
987 European Union's second written submission, para.  252.  
988 European Unio n's second written submission, para.  254.  
989 Appellate Body Report, EC – Fasteners , para.  542. 
990 Panel Report, Argentina – Ceramic  Tiles, para.  6.39. (emphasis omitted)  
991 Fertilizers Europe's submission (12 May 2014), (Exhibit  RUS-83 (BCI), p.  1. 
992 Russia's first written submission, para.  1171.  
993 Fertilizers Europe's submission (10 March 2014), (Exhibit  RUS-119 (BCI)).  
994 Russia's first written submission, para.  1173.  WT/DS494/R  
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  parts of the submission were left blank without any explanation in the cover letter nor in 
the text of the non -confidential version.995 We find no indication in the submissions o f the 
parties nor in the investigation record regarding the nature of the information left in blank. 
We are therefore not in a position to decide whether these sections contain confidential 
information which has already been summarized in the rest of the s ubmission, or company 
specific information which has not been transformed into a non -confidential summary.  
c. The same problem is identified by Russia in relation to the submission dated 5 May 2014 
(which contains information on the domestic consumption of A N during the review 
period).996 In relation to this submission, we note however that, as explained in the cover 
letter, a non -confidential summary of the confidential individual company data and of the 
confidential consumption survey is provided.997 The cove r letter also explains why the 
information is considered confidential.  
d. Finally, the same problem is identified by Russia in relation to the submission dated 
3 June 2014, which contains investment and employment indicators for ammonium 
nitrate.998 We note however that the party submitting the information provided in the 
cover letter an aggregated version of the confidential individual company data as well as 
an explanation for the confidential nature of the data.  
7.655.   On the basis of our examination of the  four submissions challenged by Russia, we thus find 
that the party submitting the information provided a non -confidential summary in the form of 
aggregated tables, as well as an explanation for the confidential nature of the information.  
7.656.   We are not convi nced by Russia's argument that  Article  6.5.1 requires the 
European  Commission  to request, instead of aggregated figures for each injury indicator, a 
non-confidential summary (for example in the form of ranges or indexes) of the injury data for each 
respond ent and for each sub -product type. We find support for this finding in the panel's decision in 
EU – Footwear  (China), which stated:  
Nothing in the text of  Article  6.5.1 requires that the summary of the confidential 
information must correspond exactly to t he format in which the information was 
requested or provided on a confidential basis.999 
7.657.   In addition, we recall that the analysis of the likelihood of recurrence of injury is made at 
the level of the domestic industry rather than on a company specific basis . We consider therefore 
that presenting the injury indicators in an aggregated form satisfies the obligation to provide 
non-confidential summaries in sufficient detail to guarantee both a reasonable understanding of the 
substance of the information submitt ed by the domestic industry  and the confidentiality of the 
information provided by individual companies .  
Conclusion  
7.658.   For the foregoing  reason s, we reject Russia's claim  that the European  Union violated  
Articles  6.5.1 and 11.4 of the Anti -Dumping Agreement by failing to request a meaningful summary 
in the four instances cited by Russia.  
Russia's claim  that the European  Commission  used facts available in a manner 
inconsistent with  Article  6.8 and Annex II of the Anti -Dumping Agreement ( claim  #20)  
Introductio n 
7.659.   Russia submits that, in its evaluation of the production capacity of Russian producers of 
ammonium nitrate in the context of the third expiry review, the European  Commission  disregarded 
 
995 Fertilizers Europe's submission (10 March 2014), (Exhibit  RUS-119 (BCI)), pp. 13 -23. 
996 Fertilizers Europe's submission (5 May 2014), ( Exhibit  RUS-120 (BCI)); Russia's first written 
submission, fn 1072.  
997 On page 2 of the cover letter.  
998 Fertilizers Europe's submission (3 June 2014), ( Exhibit  RUS-121 (BCI)); Russia's first written 
submission, fn 1072.  
999 Panel Report, EU – Footwear (China),  para. 7.794.  WT/DS494/R  
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  the data and methodologies provided by RFPA and Russian producers and instead adopted three 
different methodologies for determining capacity. According to Russia, "the EU has 'picked and 
chosen' the data it considered most suitable to increase  to the furthest extent possible the spare 
capacity of Russian exporters."1000 Russia claims  that by disregarding information provided by 
Russian interested parties and using alternative ways of determining production capacity, the 
European  Union relied on f acts available in a manner inconsistent with  Article  6.8 and Annex II of 
the Anti -Dumping Agreement.1001  
7.660.   The European  Union responds that:  
Neither  Article  6.8 nor Annex II of the AD Agreement apply, because the Commission 
did not base its determinations on  "facts available". Instead, the 
Commission's  determinations were entirely based on facts and evidence received from 
the Russian interested parties, including RFPA.1002  
7.661.   Our first task is therefore to decide whether there is enough evidence on the record to 
demonstrate, as argued by Russia, that the European  Commission  used facts available in its 
evaluation of production capacity. If this is the case, we will examine Russia's claim  that the 
European  Union breached  Article  6.8 and Annex II of the Anti -Dumping Agreement.  
Analysis  
7.662.   The main point of disagreement between the parties is whether using information provided 
by a respondent "albeit in a different way"1003 can qualify as recourse to "best information available" 
within the meaning of the Anti -Dumping Agree ment.  
7.663.   In the present case, as noted above in relation to our consideration of claim #8, the 
investigating authority assessed the production capacity of certain Russian producers on the basis 
of nameplate capacity, while it used the actual production figures for others.1004 The European  Union 
explains that:  
The data, corrected where necessary following the verification visits, showed that in 
some cases the actual production levels of the Russian producers (which is information 
provided by the  interested parties) exceeded the reported name -plate capacity (also 
information provided by the interested parties). Obviously, when a producer actually 
produces a certain amount, it follows ipso facto  that it is capable of producing (at least) 
that amoun t. Therefore, the Commission reasonably concluded that the reported 
capacity was underestimated, specifically because it had not been corrected "after the 
plants have had an update which resulted in an increase of their capacity ". This does 
not mean that t he Commission "disregarded " any data. It simply means that the 
Commission took into account the entirety of the information supplied by the interested 
parties, and came to the conclusion that production capacity is higher than reported.1005 
7.664.   Regulation  999/20 14 also indicates that:  
Contrary to what was alleged by RFPA, the non -use of the reported nameplate capacities 
in some cases and their replacement with actual, mostly verified, production data does 
not mean that the Commission has applied the concept of b est facts available in the 
sense of  Article  18 of the basic Regulation.  As regards the capacity, the Commission 
has made full use of the data provided by the Russian producers themselves, but applied 
a methodology to calculate the total production capacity , whereby not only the 
nameplate capacity but also the actual production and capacity was taken into 
account.1006 
 
1000 Russia's first written submission, para.  1210.  
1001 Russia's first written submission, paras.  1235-1236.  
1002 European Union's first written submission, para.  649. 
1003 Russia's second written submission, para.  1338.  
1004 See para.  7.489  above.  
1005 European Union's first written submission, para.  652. (fn omitted)  
1006 Regulation  999/2014, (Exhibit  RUS-66), recital  78. WT/DS494/R  
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  7.665.   Russia considers that "[i]n the case at hand, the EU did not merely draw different conclusions 
from the data than the interested parties. The EU  simply disregarded specific information on capacity 
provided in response to requests by the investigating authority, because it did not consider them 
suitable. In so doing the EU applied 'facts available', regardless of how it now attempts to label such 
an approach."1007 For Russia, the information on capacity provided by Russian exporters could have 
been replaced by other information available only if " the primary source " of information was (i) not 
verifiable, (ii) could not be used without undue difficulties , or (iii) was not provided in a timely 
manner.1008  
7.666.   We consider that Russia's claim  under  Article  6.8 and Annex II of the Anti -Dumping 
Agreement is not sufficiently supported by the evidence on the record. In particular, we disagree 
with Russia that the evidence on the  record demonstrates that the production capacity of Russian 
producers/exporters was established by the European  Commission  on the basis of "facts available".  
7.667.   First, we note that the determination of production capacity is not cited in 
Regulation  999/2014 as one of the instances in which facts available were actually used by the 
investigating authority.1009  
7.668.   Second, the circumstances challenged by Russia do not correspond to any of the cases 
described in  Article  6.8 "in which any interested party refuses acce ss to, or otherwise does not 
provide, necessary information within a reasonable period or significantly impedes the investigation" . 
The panel in China – Broiler Products (Article 21.5 – US) recalled that  Article  6.8 establishes "a 
closed list of circumstan ces involving the unavailability of information in which an investigating 
authority is permitted to use facts available ".1010 In the present case, no information necessary to 
establish the production capacity was unavailable, deficient or not verifiable. On the contrary, the 
record indicates that information on nameplate capacity and on actual production was provided by 
sampled producers in their questionnaire responses and verified by the investigating authority. 
Additional information was also provided by R FPA for non -sampled producers.1011  
7.669.   Third, investigating authorities, in the performance of their duty to base their determination 
on positive evidence, routinely correct the information provided by interested parties. This is the 
case, in particular , in the  context of verification visits where information provided in the written 
questionnaire response is verified and completed. We note for example that paragraph 7 of Annex  I, 
which describes the procedures  for on -the-spot investigations pursuant to  Article  6.7 of the 
Anti-Dumping Agreement provides for the possibility that requests may be made "on the spot for 
further details to be provided in the light of information obtained." Such corrections, made to the 
questionnaire response of the investigate d companies or to other information received by the 
investigating authorities, are different from circumstances which justify the use of facts available 
because the necessary information is "lacking"1012. We find support for this interpretation in the 
statem ent of the panel in Guatemala – Cement II , which distinguished between the application of 
facts available and the requirement under  Article  6.6 of the Anti -Dumping Agreement that 
investigating authorities "satisfy themselves" as to the accuracy of the info rmation provided by 
respondents. The panel stated:  
Once an investigating authority has determined what information is of substantive 
relevance to its investigation,  Article  6.6 requires the investigating authority to satisfy 
itself (except when "best info rmation available" is used) that the substantively relevant 
information is accurate.1013  
7.670.   Thus, in using the actual production volume rather than the nameplate capacity to establish 
the production capacity of certain Russian producers/exporters, the European  Union did not use facts 
available but rather took into account information which was provided by the respondents. In our 
 
1007 Russia's second written submission, para.  1343. (fn omitted)  
1008 Russia's second written submission, para.  1347.  
1009 Europ ean Union's first written submission, para.  653 (quoting Regulation  999/2014, 
(Exhibit  RUS-66), recital  33). See also Regulation  999/2014, (Exhibit  RUS-66), recital  78. 
1010 Panel Report, China – Broiler Products (Article  21.5 – US), para.  7.340.  
1011 Regulation  999/2014, (Exhibit  RUS-66), recitals  69-70. 
1012 European Union's first written submission, para.  648 (quoting Appellate Body Report,  US – 
Hot-Rolled Steel , para.  77). 
1013 Panel Report, Guatemala – Cement II , para.  8.172.  WT/DS494/R  
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  view, this is consistent with the first sentence of paragraph 3 of Annex II to the 
Anti-Dumping  Agreement which states that:  
All info rmation which is verifiable, which is appropriately submitted so that it can be 
used in the investigation without undue difficulties, which is supplied in a timely fashion, 
… should be taken into account when determinations are made.  
7.671.   The issue of whether t he investigating authority's determination, which relied on actual 
production rather than nameplate capacity was objective and based on positive evidence is a 
different question, which is addressed under claim  #8 above.  
Conclusion  
7.672.   For the foregoing reason s, we disagree with Russia that the European  Union acted in a 
manner inconsistent with  Articles  6.8 and Annex II of the Anti -Dumping Agreement when 
establishing the production capacity of Russian producers/exporters on the basis of actual production 
rather  than on the basis of nameplate capacity. We therefore reject Russia's claim  #20. 
Russia's claim  that the European  Commission  failed to disclose essential facts 
(claim  #21)  
Introduction  
7.673.   Russia takes issue with the alleged failure, by the European  Commission , to disclose certain 
essential facts pertaining to different sections of the definitive disclosure provided to RFPA on 
13 June 2014.1014 For Russia, this failure to disclose essential fa cts is a violation, by the 
European  Union, of  Articles  6.9 and 11.4 of the Anti -Dumping Agreement.  
7.674.   Russia submits that the disclosure was "blatantly insufficient". Russia points in particular to 
the fact that the European  Union "did not specify its source  of the EU domestic industry's injury data 
upon which it made its determination on the likelihood of recurrent injury."1015 More specifically, 
Russia submits that the European  Union "did not disclose the source on which it calculated the 
EU consumption, impo rt volumes, as well as the dumping, undercutting and underselling 
calculations".1016 
7.675.   Russia lists five items1017, which should have been disclosed as part of a disclosure of 
essential facts consistent with the provisions of  Article  6.9 of the Anti -Dumping Agre ement:  
a. The Article  14(6) database mentioned in table 1 of the final disclosure (Union 
consumption);  
b. Eurostat data and the Article  14(6) database mentioned in table 2 of the final disclosure 
(import volume, market share and prices for the product under investigation imported 
from Russia);  
c. Eurostat data mentioned in table 3 of the final disclosure (import volume, market share 
and prices for the product concerned imported from other third countries);  
d. Dumping calculations;  
e. Price undercutting and under selling calculations.  
7.676.   We understand that, according to Russia, the European  Commission  did not disclose the data 
which served as a basis for the determination of the apparent Union consumption, nor the data 
which served for the establishment of the volume of imports from third countries. In addition, the 
 
1014 Final disclosure , (Exhibit  RUS-78 (BCI)).  
1015 Russia's first written submission, para.  1244.  
1016 Russia's first written submission, para.  1247.  
1017 Russia's first written submission, para. 1246; second written submission, para. 1367. WT/DS494/R  
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  European  Commission  did not provide the basis for its dumping margin and 
underselling/undercutting calculations.  
7.677.   The European  Union responds that "Russia's claims  are so vague and unspecified that it is 
not possible for the European  Union to provide a meaningful response, or for the Panel to draw any 
reasonable conclusions other than to reject the claims".1018 
Analysis  
7.678.   Article  6.9 of the Anti -Dumping Agreement provides:  
The authorities shall, before a final determination is made, inform all interested parties 
of the essential facts under consideration which form the basis for the decision whether 
to apply definitive measures. Such disclosure should take place in sufficient time for the 
parties to defend their  interests.  
7.679.   It is well established that the obligation contained in  Article  6.9 of the 
Anti-Dumping  Agreement concerns the "essential facts" which form the basis for the decision. 
In order to make a prima facie  case that an investigating authority is in br each of this provision, a 
complainant must therefore demonstrate that the information which is allegedly missing in the 
authority's disclosure constitute essential facts.  
7.680.   In the present case, and in view of our conclusions  that the European  Commission  did not 
carry out dumping margin or undercutting calculations  in the context of the third expiry review , we 
are of the view that such calculations could not "form the basis for the decision" and that they could  
not be part of the essential facts forming the b asis of the decision. We thus reject Russia's claim  with 
regard to these calculations.  
7.681.   On the other hand, the final disclosure shows that the European  Commission  did determine 
the Union consumption as part of its likelihood of recurrence of injury determi nation and evaluated 
imports from Russia and from third – countries as well as their respective market shares.1019 
In China  – GOES , the Appellate Body stated that "essential facts" in the sense of  Article  6.9 refer to:  
[T]hose facts that are significant in the process of reaching a decision as to whether or 
not to apply definitive measures. Such facts are those that are salient for a decision to 
apply definitive measures, as well as those that are salient for a contrary outcome. An 
authority must disclose su ch facts, in a coherent way, so as to permit an interested 
party to understand the basis for the decision whether or not to apply definitive 
measures. In our view, disclosing the essential facts under consideration pursuant to  
Article  6.9 … is paramount fo r ensuring the ability of the parties concerned to defend 
their interests.1020  
7.682.   In the present case, the total consumption of the product under investigation in the importing 
country, including the evaluation of imports, their price and the respective market  share of different 
imports during the period of review, were indeed essential facts which formed the basis of the 
likelihood of recurrence of injury determination reached by the European Union.1021 In this regard, 
the final disclosure contains the following  elements:  
a. Section E(1) of the disclosure is entitled "Union consumption" and states that:  
The Commission established the apparent Union consumption on the basis of (i) the 
volume of sales of the Union industry on the Union market based on data provided by 
the applicant and (ii) imports from third countries based on data extracted from the  
Article  14(6) database.1022  
 
1018 European Union's first written submission, para. 670. See also European Union's second written 
submission, para.  258. 
1019 Final disclosure, (Exhibit  RUS-78 (BCI)), tables 1, 2, and 3.  
1020 Appellate Body Report, China – GOES , para.  240. 
1021 Final disclosure, (Exhibit  RUS-78 (BCI)), paras.  66-72.  
1022 Fn omitted.  WT/DS494/R  
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  7.683.   The nature of this database is then described in a footnote  as "monthly import statistics 
based on actual data that is provided by c ustoms authorities in Member States under  Article  14(6) 
of the basic Regulation  on products subject to anti -dumping measures ". Regulation  999/2014 also 
indicates that sales data provided by the applicant was "partly verified"1023. Table 1 of the final 
disclosure sets the Union consumption over a period of four years and in the form of an index.  
b. Sections E(2) and E(3) of the final disclosure present import and market share data over 
the same period of four years and in the form of  an index. They also indicate that the 
source of this data is Eurostat and the  Article  14(6) database.  
7.684.   In view of the content of the final disclosure on the points raised by Russia, we cannot agree 
with Russia that the final disclosure is "blatantly insuf ficient". The information contained in 
sections  E(1) to E(3) of the disclosure does set out the figures on which the European  Commission  
relied to reach its determination of likelihood of recurrence of dumping, and indicates the source of 
this information.   
7.685.   We consider therefore that the disclosure provides the relevant essential facts, so as to 
permit RFPA to understand the basis for the decision whether or not to apply definitive measures. 
In our view, the parties concerned obtained enough information on the essential facts under 
consideration forming the basis of the European  Commission 's determination, to defend their 
interests.  
Conclusion  
7.686.   For the foregoing reasons, we reject Russia's claim  that the European  Union breached  
Articles  6.9 and 11.4 of the A nti-Dumping Agreement by failing to disclose the essential facts under 
consideration which formed the basis of its likelihood -of-injury determination.  
Russia's claim  that the European  Commission  failed to explain the reasons which 
led to the imposition of  the measures ( claim  #22)  
Introduction  
7.687.   Russia claims  that Regulation  999/2014 "does not consist in a public notice complying with  
Articles  12.2 and 12.2.2 of the Anti -Dumping Agreement, as the EU failed to disclose a number of 
relevant information on the m atters of fact and law and reasons which have led to the imposition of 
final measure s."1024 
7.688.   Russia  clarifies that it " does not challenge the EU's failure to disclose information during the 
review proceedings "1025 but rather the consistency of Regulation  999/20 14 with  Articles  12.2 
and 12.2.2  of the Anti -Dumping Agreement on the following basis:  
(a) Regulation  999/2014 does not detail in any way the dumping and undercutting 
findings made by the EU, despite clear statements that such findings were made ;  
(b) Regulation  999/2014 does not appropriately address the scope of the product 
concerned and of the like product, and how the EU treated FGAN, IGAN and Stabilized 
AN for the purpose of its dumping and injury findings, and  
(c) the arguments made by RFPA, in particular as regards the scope of the product 
concerned and of the like product, were not addressed at all in Regulation  999/2014 .1026  
 
1023 Regulation  999/2014, (Exhibit  RUS-66), recital  110. 
1024 Russia's first written submission, para.  1256.  
1025 Russia's second written submission, para.  1371.  
1026 Russia's response to Panel question No. 60. See also Russia's second written submission , 
para. 1373.  WT/DS494/R  
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  7.689.   The European  Union does not respond to Russia's arguments in its written submissions. 
Instead, it argues that Russia has failed to meet its burden of proof that the "public notice" 
(Regulation  999/2014 in this case) does not contain all relevant information.1027 
Analysis  
7.690.   Article  12.2 of the Anti -Dumping Agreement states in relevant part:  
Public notice shall be given of any preliminary or final determination, whether 
affirmative or negative, … 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 fact and law considered material by the investigating authorities. All such 
notices and reports shall be forwarded to the Member or Members the products of which 
are subject to such determination or undertaking and to other interested partie s known 
to have an interest therein.  
7.691.   With regard to the first point raised by Russia (failure to provide the details of dumping 
margin and undercutting calculations), we disagree with Russia that Regulation  999/2014 should 
have provided details on dumping and undercutting calculations. Regulation  999/2014 clearly sets 
out why the European  Commission  declined to carry out such calculations.1028 For this reason, we 
consider that there can be no breach of  Articles  12.2 and 12.2.2 in relation to determinations th at 
the investigating authority did not make.  
7.692.   Regarding the scope of the product concerned, we recall our conclusion that 
Regulation  999/2014 does not expand the product scope of the product concerned.1029 Section 2 of 
Regulation  999/2014 ("Product concerned  and like product") contains a detailed description of the 
scope of the product concerned and of the like product. In addition, Regulation  999/2014 contains 
a description of a claim  made by RFPA regarding the product scope and explains why this claim  was 
considered unfounded.1030 Finally, with regard to the alleged lack of response (in the public notice) 
to RFPA's requests for additional disclosure1031, we note that the request lodged by RFPA covers a 
total of 16 issues.1032 In its written submissions to the Pane l, Russia does not explain why it believes 
that these issues are not adequately addressed by the public notice, nor why the alleged lack of 
details provided by the Regulation  would constitute a breach of  Articles  12.2 or 12.2.2.  
Conclusion  
7.693.   For these reaso ns, we agree with the European  Union that Russia has failed to make a 
prima  facie case that the public notice contained in Regulation 999/2014 violates  Articles  12.2 and 
12.2.2 of the Anti -Dumping Agreement.  
Conclusion on Russia's claim  concerning the cond uct of the third expiry review  
7.694.   For the reasons set out above:  
a. With regard to claim  #16, the Panel finds that the European Union, in the four instances 
raised by Russia, did not comply with the obligation contained in  Articles  6.1.2 and 
Article  11.4 to make the evidence available promptly.  
b. With regard to claim  #17, the Panel finds  that the European  Union did not comply with its 
obligation to make the full text of the petition available to the interested parties upon 
initiation of the expiry review and th erefore was in breach of  Articles  6.1.3 and 11.4 of the 
Anti-Dumping Agreement.  
c. With regard to claim  #18, the Panel finds that the European  Union violated  Articles  6.5 
and 11.4 of the Anti -Dumping Agreement by granting confidential treatment to Annex I of 
 
1027 See, for example , European Union's second written submission, para.  261. 
1028 Regulation  999/2014, (Exhibit  RUS-66), recitals  53, 60, 68, and 114.  
1029 See para.  7.318  above.  
1030 Regulation  999/2014, (Exhibit  RUS-66), recital  22.  
1031 Russia's second written submission, para.  1386.  
1032 Comments by RFPA on the definitive disclosure (8  July 2014), (Exhibit  RUS-79 (BCI)), pp. 316 -324. WT/DS494/R  
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  the 14 May submission, without requesting or obtaining that the interested party 
submitting the information show good cause.  
7.695.   Further,  the Panel decided to reject Russia's claims  #19 to #22 in their entirety.   
8  CONCLUSIONS AND RECOMMENDATION  
8.1.  For the reasons  set forth in this Report, the Panel concludes as follows:  
a. With respect to Russia's claims  concerning the Cost Adjustment Methodology : 
i. Russia has established the existence of the C ost Adjustment  Methodology  as a 
measure of general and prospective applicati on attributable to the European Union.  
ii. The Cost Adjustment Methodology is inconsistent with the first sentence of  
Article  2.2.1.1 of the Anti -Dumping Agreement , by provid ing for the rejection of the 
costs reflected  in the records of the exporter or producer under investigation in a 
manner  inconsistent with the second condition in the first sentence of  Article  2.2.1.1 
of the Anti -Dumping Agreement . 
iii. Russia's claim  that the Cost Adjustment Methodology is inconsistent with the first 
sente nce of  Article  2.2.1.1 of the Anti -Dumping Agreement  because it uses costs other 
than " the costs associated with the production and sale of the product under 
consideration" lacks a valid basis in  Article  2.2.1.1 of the Anti -Dumping Agreement . 
Therefore, we  dismiss Russia's claim.  
iv. The Cost Adjustment Methodology  is inconsistent with  Article  2.2 of the 
Anti-Dumping  Agreement , by providing for the use of out-of-country input price 
information  without establishing whether or explaining how such information is 
adequate to reflect or represent the costs of production in the country of origin . 
b. Regulations 2017/2321 and 2018/82 5 are not within our terms of reference.  
c. With respect to Russia's "as such" claim  concerning the first subparagraph of  Article  2(3) 
of the Basic AD Regulation, Russia has failed to demonstrate  that this provision requires 
only "representative" prices be used in the construction of normal value of the like product. 
Accordingly, we do not consider it necessar y to further examine additional aspects of 
Russia's "as such" claim  in respect of the first subparagraph of  Article  2(3) of the 
Basic AD Regulation.  
d. With respect to Russia's "as such" claims  concerning the second subparagraph of  
Article  2(3) of the Basic AD Regulation, Russia has not discharged its burden of 
demonstrating that its legal rationale regarding the interpretation of  Article  2.2 provides 
a valid basis for this claim. Accordingly, we dismiss Russia's claim  that the second 
subparagraph of  Article  2(3) of the Basic AD Regulation  is inconsistent with  Article  2.2 of 
the Anti -Dumping Agreement.  
e. With respect to Russia's "as such" claims  concerning the second subparagraph of  
Article  2(5) of the Basic AD Regulation, Russia has failed to demonstrate  its claims  that 
the final part of the second subparagraph of  Article  2(5) of the Basic AD Regulation  is 
inconsistent with  Article  2.2 and  Article  2.2.1.1 of the Anti -Dumping Agreement . 
f. With respect to the anti -dumping measures on imports of certain welded tubes and pipes : 
i. The European  Commission  acted inconsistently with the  Article  2.2.1.1, by reject ing 
the costs reflected in the records  of the Russian producer  in a manner  inconsistent 
with the second condition in the first sentence of  Article  2.2.1.1 of the Anti -Dumping 
Agreement . 
ii. The European  Commission  acted inconsistently with  Article  2.2.1 of the 
Anti-Dumping  Agreement because, in its ordinary -course -of-trade determination WT/DS494/R  
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  under this provision, it relied on costs that were calculated inconsistently with  
Article  2.2.1.1 of the Anti -Dumping Agreement.  
iii. The European  Commission  acted inconsistently with  Article  11.3 of the Anti -Dumping 
Agreement, by basing its conclusion that dumping was li kely to recur on costs of 
production calculated inconsistently with  Articles  2.2.1.1 and 2.2.1 of the 
Anti-Dumping Agreement.  
iv. We exercise judicial economy on Russia's claim that the European  Commission  acted 
inconsistently with  Article  2.2.1.1 by using costs other than " the costs associated with 
the production and sale of the product under consideration ". 
g. With respect to the anti -dumping measures on imports of AN from Russia  and the 
underlying investigations and reviews : 
i. Russia has failed to demonstrate tha t the Anti -dumping Agreement and the 
GATT  1994 apply to its claim against the alleged extension of the product scope of 
the measures to stabili zed AN. Russia has also failed to demonstrate that the 
European Union impermissibly extended the product scope of the review to  IGAN 
in the context of the third expiry review . As a consequence , Russia has not 
demonstrated that the European Union violated  Articles  1, 2.1, 2.2, 2.4, 2.6, 3.1, 
3.2, 3.4, 3.5, 4.1, 9.1, 9.3 , and 18.1 of the Anti -Dumping Agreement and 
Articles  I:1, II:1 (a) and (b), VI:1 , and VI:2 of the GATT  1994 ( claim  #1).  
ii. The European Union acted inconsistently with  Article  11.3 of the 
Anti-Dumping  Agreement by failing to verify whether the constructed normal value 
included in the request was b ased on the cost of production in the country of origin, 
and, as a consequence, by failing to ensure that the review request was duly 
substantiated (claim #2). 
iii. Russia has failed to demonstrate that the provisions of  Article  3 of the 
Anti-Dumping Agreement applied to the expiry review  at issue . Russia has also 
failed to demonstrate that the European  Commission  carried out undercutting 
calculations in a manner inconsistent with the provisions of  Article  11.3 of the 
Anti-Dumping Agreement ( claim  #5). 
iv. Russia has failed to demonstrate that  the European  Union violated  Articles  4.1 and 
11.3 of the Anti -Dumping Agreement by basing its likelihood of recurrence of injury 
determination (i) on data relating to a non -representative sample of the domestic 
industr y; (ii) on the incomplete, non -representative and erroneous data provided 
by the sampled EU companies; and (ii i) by failing to examine and explain the 
significantly divergent economic performance between the sampled and 
non-sampled EU domestic producers  (claim #6). 
v. Russia has failed to demonstrate  that the European Union violated  Article  11.3 by 
erroneously concluding that there were no indications that the non -injurious 
situation of the EU domestic industry would be sustainable  (claim  #7). 
vi. Russia has faile d to demonstrate t hat the European  Commission 's determination of 
likelihood of recurrence of injury was inconsistent with  Article  11.3 of the 
Anti-Dumping Agreement because it was not based on positive evidence and on an 
objective examination of the level of production capacity available in Russia and of 
the capacity of absorption of Russian exports by third country markets  (claim  #8).  
vii. Russia has failed to demonstrate that the provisions of  Article  2 of the 
Anti-Dumping Agreement applied to the expiry revi ew at issue. Russia has also 
failed to demonstrate that the European  Union  had breached  Article  11.3 by failing 
to examine the impact of the alleged absence of dumping by the largest Russian 
exporters during the review investigation period  and that the 
European  Commission 's determination of likelihood of recurrence of dumping was 
inconsistent with  Article  6.10. Further, Russia's claim  under  Article  6.8 of the WT/DS494/R  
BCI deleted, as indicated [[***]] 
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  Anti-Dumping Agreement is not sufficiently supported by the evidence on the 
record  (claim #9).  
viii. Russia's claim  #11 under  Article  11.3 and Article  VI of the GATT 1994 is 
consequential on a finding that the European Union's determination of a likelihood 
of recurrence of dumping violated  Articles  2.1, 2.2, and 2.4 . Since Russia has failed 
to de monstrate any inconsistency with these provisions, we reject Russia's 
claim  #11 in its entirety.  
ix. Russia has failed to demonstrate that the European Union had violated  
Articles  11.3, 3.1, 11.1, 1 and 18.1 of the Anti -Dumping Agreement by conducting 
a singl e expiry review with regard to anti -dumping measures having different 
product scopes of application, combining within such review the likelihood of 
recurrence of injury and dumping determinations with regard to products subject 
to anti -dumping measures hav ing different scopes of application and by extending 
the measures applicable to Kirovo based on the likelihood of injury and dumping 
determinations for the product other than that which formed the basis for the 
anti-dumping measures applied on products of this company . Russia's claims  under  
Articles  1 and 18.1 of the Anti -Dumping Agreement are consequential to a finding 
of inconsistency with the provisions of  Articles  3 and 11.3. Since Russia has failed 
to demonstrate any inconsistency with these provisions , we reject Russia's 
claim  #3 insofar as it is based on these provisions. Further, we do not find it 
necessary to rule on Russia's claim  under  Article  11.1 (claim  #3). 
x. Russia has failed to demonstrate that the European Union had violated  
Articles  11.3, and  4.1 of the Anti -Dumping Agreement by making a recurrence of 
injury determination based on erroneous and incomplete data provided by the 
domestic industry and by incorrectly defining the domestic industry ( claim  #4). 
xi. Claims #12 to #15 are consequential to a finding  that various dumping 
determinations made prior to Russia's accession to the WTO were inconsistent with  
Article  2 of the Anti -Dumping Agreement.  Russia has failed to demonstrate that 
these pre -WTO determinations could be challenged in these proceedings. 
Therefore, we reject Russia's claims  #12 to #15 in their entirety.  
xii. The European Union, in the four instances raised by Russia, acted inconsistently 
with the  obligation contained in  Articles  6.1.2 and 11.4 of the Anti -Dumping 
Agreement to make the evidence available promptly. Since we have already found  
the European Union in breach of  Article  6.1.2, we do not find  it necessary to 
examine Russia's claim  under  Article  6.4 (claim #16).  
xiii. The European Union acted inconsistently  with its obligation to make the full text of 
the expiry review request  available to the interested parties upon initiation of the 
expiry review and therefore violated  Articles  6.1.3 and 11.4 of the Anti -Dumping 
Agreement. Since w e have already found  the European Union in breach of  
Article  6.1.3, we do not find it necessary to examine Russia's claims  under  
Articles  6.2 and 6.4  (claim  #17).  
xiv. The European  Union acted inconsistently with  Articles  6.5 and 11.4 of the 
Anti-Dumping Agreement by granting confidential treatment to the identity of the 
author of the exp ert report in Annex I of the 14 May submission, without requesting 
or obtaining that the interested party submitting the information show good cause; 
in contrast, Russia has failed to demonstrate that the European Union  acted 
inconsistently with  Article  6.5 in relation to the s ubmission dated 20 March 2014  
(claim  #18). 
xv. Russia has failed to demonstrate that the European Union violated  Articles  6.5.1 
and 11.4 of the Anti -Dumping Agreement by failing to require the domestic industry 
to furnish sufficiently detailed non -confidential  summaries of the data submitted in 
confidence ( claim #19).   WT/DS494/R  
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  xvi. Russia has failed to demonstrate that the European  Union violated  Articles  6.8, 
11.4 and Annex II of the Anti -Dumping Agreement when establishing the 
production capacity of Russian producers/expo rters on the basis of actual 
production rather than on the basis of nameplate capacity  (claim  #20).  
xvii.  Russia has failed to demonstrate that the European  Union violated  Articles  6.9 and 
11.4 of the Anti -Dumping Agreement by failing to disclose the essential f acts under 
consideration which formed the basis of its likelihood -of-injury determination  
(claim  #21). 
xviii.  Russia has failed to make a prima facie  case that the public notice contained in 
Regulation 999/2014 was inconsistent with  Articles  12.2 and 12.2.2 of th e 
Anti-Dumping Agreement because it did not provide in sufficient detail the findings 
and conclusions reached on all issues of fact and law considered material by the 
investigating authority and to explain the reasons which led to the acceptance or 
rejecti on of the arguments of the interested parties  (claim  #22).  
8.2.  Pursuant to  Article  19.1 of the DSU, we recommend that the European Union bring its measures 
into conformity with its obligations under the Anti-Dumping Agreement.  
 
__________