WT/DS577/R/Add.1  
 
19 Novemb er 2021 
(21-8708) Page: 1/96 
  Original: English  
 
  
 
UNITED STATES - ANTI -DUMPING AND  COUNTERVAILING  
DUTIES ON RIPE OLIVES FROM SPAIN  
REPORT OF THE PANEL  
Addendum  
This addendum  contains Annexes A to C to the Report of the Panel to be found in document  
WT/DS577/R . 
 
 
_______________  
 
 
 
 
 
 
 
 
 
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LIST OF ANNEXES  
ANNEX  A 
PANEL DOCUMENTS  
Contents  Page  
Annex  A-1 Working Procedures of the Panel  4 
Annex  A-2 Additional Working Procedures concerning  Business Confidential Information  11 
Annex  A-3 Communication from the Panel to the parties of 18 September  2020 
concerning certain procedural matters  13 
Annex  A-4 Additional Working Procedures of the Panel concerning holding a Substantive 
Meeting Conducted v ia Cisco WebEx – Adopted on 9  October  2020 14 
Annex  A-5 Additional Working Procedures of the Panel concerning holding a Substantive 
Meeting Conducted v ia Cisco WebEx – Adopted on  30 November  2020 19 
Annex  A-6 Additional Working Procedures of the Panel: Open Meetings (Delayed Online 
Broadcast)  23 
Annex  A-7 Interim Review  24 
ANNEX B  
ARGUMENTS OF THE PARTIES  
Contents  Page  
Annex  B-1 Integrated executive summary of the arguments of the European  Union  49 
Annex  B-2 Integrated executive summary of the arguments of the United  States  61 
ANNEX  C 
ARGUMENTS OF THE THIRD PARTIES  
Contents  Page  
Annex  C-1 Integrated executive summary of the arguments of Brazil  79 
Annex  C-2 Integrated executive summary of the arguments of Canada  82 
Annex  C-3 Integrated executive summary of the arguments of Japan  86 
Annex  C-4 Integrated executive summary of the arguments of Mexico  90 
Annex  C-5 Integrated executive summary of the arguments of Turkey  93 
 
 
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  ANNEX  A 
PANEL DOCUMENTS  
Contents  Page  
Annex  A-1 Working Procedures of the Panel  4 
Annex  A-2 Additional Working Procedures concerning  Business Confidential Information  11 
Annex  A-3 Communication from the Panel to the parties of 18 September  2020 
concerning certain procedural matters  13 
Annex  A-4 Additional Working Procedures of the Panel  concerning holding a Substantive 
Meeting Conducted v ia Cisco WebEx – Adopted on 9  October  2020 14 
Annex  A-5 Additional Working Procedures of the Panel  concerning holding a Substantive 
Meeting Conducted v ia Cisco WebEx – Adopted on  30 November  2020 19 
Annex  A-6 Additional Working Procedures of the Panel: Open Meetings (Delayed Online 
Broadcast)  23 
Annex  A-7 Interim Review  24 
 
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  ANNEX A -1 
WORKING PROCEDURES OF THE PANEL  
Adopted on 6 January 2020  
 
General  
 
1. (1) In this proceeding, the Panel shall follow the relevant provisions of the Understanding 
on Rules and Procedures Governing the Settlement of Disputes ("DSU"). In addition, the 
following Working Procedures apply.  
 
(2) The Panel reserves the right to modify these procedures, as well as any additional 
working procedures, as necessary, after consultation with the parties.  
 
Confidentiality  
 
2. (1) The deliberations of the Panel and t he documents submitted to it shall be kept 
confidential. Members shall treat as confidential information that is submitted to the Panel 
which the submitting Member has designated as confidential.  
 
(2) In accordance with the DSU, nothing in these Working Pr ocedures shall preclude a party 
or third party from disclosing statements of its own positions to the public.  
 
(3) If a party submits a confidential version of its written submissions to the Panel, it shall 
also, upon request of a Member, provide a non -confidential summary of the information 
contained in its submissions that could be disclosed to the public. A party should endeavour 
to promptly provide a non -confidential summary to any Member requesting it, and if possible 
within 10 days of receiving the re quest.  
 
(4) Upon request, the Panel may adopt appropriate additional procedures for the treatment 
and handling of confidential information after consultation with the parties.  
 
Submissions  
 
3. (1) Before the first substantive meeting of the Panel with the parties, each party shall 
submit a written submission in which it presents the facts of the case and its arguments, in 
accordance with the timetable adopted by the Panel.  
 
(2) Each party shall also submit to the Panel, before the second substantive meeting of the 
Panel, a written rebuttal, in accordance with the timetable adopted by the Panel.  
 
(3) Each third party that chooses to make a written submission before the first substantive 
meeting of the Panel with the parties shall do so in a ccordance with the timetable adopted by 
the Panel.  
 
(4) The Panel may invite the parties or third parties to make additional submissions during 
the proceeding, including with respect to requests for preliminary rulings in accordance with 
paragraph  4 below.  
 
Preliminary rulings  
 
4. (1) If the United States considers that the Panel should make a ruling before the issuance 
of the Report that certain measures or claims in the panel request or the complainant's 
first written submission are not properly before th e Panel, the following procedure applies. 
Exceptions to this procedure shall be granted upon a showing of good cause.  
 
a. The United States shall submit any such request for a preliminary ruling at the earliest 
possible opportunity and in any event no late r than in its first written submission to the WT/DS577/R/Add.1  
 
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  Panel. The European Union shall submit its response to the request before the 
first substantive meeting of the Panel, at a time to be determined by the Panel in light of 
the request.  
 
b. The Panel may issue a p reliminary ruling on the issues raised in such a preliminary ruling 
request before, during or after the first substantive meeting, or the Panel may defer a 
ruling on the issues raised by a preliminary ruling request until it issues its Report to the 
partie s. 
 
c. If the Panel finds it appropriate to issue a preliminary ruling before the issuance of its 
Report, the Panel may provide reasons for the ruling at the time that the ruling is made, 
or subsequently in its Report.  
 
d. Any request for such a preliminar y ruling by the United States before the first meeting, 
and any subsequent submissions of the parties in relation thereto before the first meeting, 
shall be served on all third parties. The Panel may provide all third parties with an 
opportunity to provide  comments on any such request, either in their submissions as 
provided for in the timetable or separately. Any preliminary ruling issued by the Panel 
before the first substantive meeting on whether certain measures or claims are properly 
before the Panel s hall be shared with all third parties.  
 
(2) This procedure is without prejudice to the parties' right to request other types of 
preliminary or procedural rulings during the proceeding, and to the procedures that the Panel 
may follow with respect to such re quests.  
 
Evidence  
 
5. (1) Each party shall submit all evidence to the Panel no later than during the 
first substantive meeting, except evidence necessary for purposes of rebuttal, or evidence 
necessary for answers to questions or comments on answers provided by the other party. 
Additional exceptions may be granted upon a showing of good cause.  
 
(2) If any new evidence has been admitted upon a showing of good cause, the Panel shall 
accord the other party an appropriate period of time to comment on the new evidence 
submitted.  
 
6. (1) If the original language of an exhibit or portion thereof is not a WTO working language, 
the submitting party or third party shall simultaneously submit a translation of the exhibit or 
relevant portion into the WTO working l anguage of the submission. The Panel may grant 
reasonable extensions of time for the translation of exhibits upon a showing of good cause.  
 
(2) Any objection as to the accuracy of a translation should be raised promptly in writing, 
preferably no later than  the next submission or meeting (whichever occurs earlier) following 
the submission which contains the translation in question. Any objection shall be accompanied 
by an explanation of the grounds for the objection and an alternative translation.  
 
7. (1) To facilitate the maintenance of the record of the dispute and maximize the clarity of 
submissions, each party and third party shall sequentially number its exhibits throughout the 
course of the dispute, indicating the submitting Member and the number of eac h exhibit on its 
cover page. Exhibits submitted by the European Union should be numbered EU -1, EU -2, etc. 
Exhibits submitted by the United States should be numbered USA -1, USA -2, etc. If the last 
exhibit in connection with the first submission was numbered  EU-5, the first exhibit in 
connection with the next submission thus would be numbered EU -6. If a party withdraws an 
exhibit or leaves one or more exhibits intentionally blank, it should indicate this on the cover 
page that provides the number of the blank  exhibit.  
 
(2) Each party shall provide an updated list of exhibits (in Word or Excel format) together 
with each of its submissions, oral statements, and responses to questions.  
 
(3) If a party submits a document that has already been submitted as an exhib it by the 
other party, it should explain why it is submitting that document again.  
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  (4) If a party includes a hyperlink to the content of a website in a submission, and intends 
that the cited content form part of the official record, the cited content of t he website shall be 
provided in the form of an exhibit along with an indication of the date that it was accessed.  
 
Editorial Guide  
 
8. In order to facilitate the work of the Panel, each party and third party is invited to make its 
submissions in accordance  with the WTO Editorial Guide for Panel Submissions (electronic copy 
provided).  
 
Questions  
 
9. (1) The Panel may pose questions to the parties and third parties at any time.  
 
(2) Before any meeting, the Panel may send written questions, or a list of topics it intends 
to pursue in questioning orally during a meeting. The Panel may ask different or additional 
questions at the meeting.  
 
(3) The Panel may put questions to the parties and third parties orally during a meeting, 
and in writing following the meeting, as provided for in paragraphs  15 and 21 below.  
 
Substantive meetings  
 
10. At the parties' request, the Panel may open its meetings with the parties to observation by 
the public, either in whole or in part, subject to appropriate procedures to prot ect confidential 
information to be adopted by the Panel after consulting the parties. Otherwise, the Panel shall meet 
in closed session.  
 
11. The parties shall be present at the meetings only when invited by the Panel to appear before 
it. 
 
12. (1) Each par ty has the right to determine the composition of its own delegation when 
meeting with the Panel.  
 
(2) Each party shall have the responsibility for all members of its delegation and shall 
ensure that each member of its delegation acts in accordance with the  DSU and these 
Working  Procedures, particularly with regard to the confidentiality of the proceeding and the 
submissions of the parties and third parties.  
 
13. Each party shall provide to the Panel the list of members of its delegation no later 
than 5.00 p.m. (Geneva  time) three working days before the first day of each meeting with the 
Panel.  
 
14. A request for interpretation by any party should be made to the Panel as early as possible, 
preferably at the organizational stage, to allow sufficient time to e nsure availability of interpreters.  
 
15. The first substantive meeting of the Panel with the parties shall be conducted as follows:  
 
a. The Panel shall invite the European Union to make an opening statement to present its 
case first. Subsequently, the Pane l shall invite the United States to present its point of 
view. Before each party takes the floor, it shall provide the Panel and other participants at 
the meeting with a provisional written version of its statement. If interpretation is needed, 
each party shall provide additional copies for the interpreters before taking the floor.  
 
b. Each party should avoid lengthy repetition of the arguments in its submissions. Each party 
is invited to limit the duration of its opening statement to not more than 75 minut es. If 
either party considers that it requires more time for its opening statement, it should inform 
the Panel and the other party at least 10 days before the meeting, together with an 
estimate of the expected duration of its statement. The Panel will acco rd equal time to the 
other party.  
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  c. After the conclusion of the opening statements, the Panel shall give each party the 
opportunity to make comments or ask the other party questions.  
 
d. The Panel may subsequently pose questions to the parties.  
 
e. Once the questioning has concluded, the Panel shall afford each party an opportunity to 
present a brief closing statement, with the European Union presenting its statement first. 
Before each party takes the floor, it shall provide the Panel and other parti cipants at the 
meeting with a provisional written version of its closing statement, if available.  
 
f. Following the meeting:  
 
i. Each party shall submit a final written version of its opening statement no later than 
5.00 p.m. (Geneva time) on the first wor king day following the meeting. At the same 
time, each party should also submit a final written version of any prepared closing 
statement that it delivered at the meeting.  
 
ii. Each party shall send in writing, within the timeframe established by the Panel  before 
the end of the meeting, any questions to the other party to which it wishes to receive 
a response in writing.  
 
iii. The Panel shall send in writing, within the timeframe established by the Panel before 
the end of the meeting, any questions to the p arties to which it wishes to receive a 
response in writing.  
 
iv. Each party shall respond in writing to the questions from the Panel, and to any 
questions posed by the other party, within the time -frame established by the Panel 
before the end of the meetin g. 
 
16. The second substantive meeting of the Panel with the parties shall be conducted in the same 
manner as the first substantive meeting with the Panel, except that the United States shall be given 
the opportunity to present its oral statement first. If  the United States chooses not to avail itself of 
that right, the European Union shall present its opening statement first, followed by the 
United  States. The party that presented its opening statement first shall present its closing 
statement first.  
 
Third party session  
 
17. Each third party may present its views orally during the third party session of the 
first substantive meeting. The Panel may open the third -party session to the public for those 
third parties wishing to make their statement public, sub ject to appropriate procedures to be adopted 
by the Panel after consulting the parties.  
 
18. Each third party shall indicate to the Panel whether it intends to make an oral statement during 
the third -party session, along with the list of members of its del egation, in advance of this session 
and no later than 5.00  p.m. (Geneva time) three working days before the third -party session of the 
meeting with the Panel.  
 
19. (1) Each third party has the right to determine the composition of its own delegation when 
meeting with the Panel.  
 
(2) Each third party shall have the responsibility for all members of its delegation and shall 
ensure that each member of its delegation acts in accordance with the DSU and these 
Working  Procedures, particularly wit h regard to the confidentiality of the proceeding and the 
submissions of the parties and third parties.  
 
20. A request for interpretation by any third party should be made to the Panel as early as 
possible, preferably upon receiving the working procedures and timetable for the proceeding, to 
allow sufficient time to ensure availability of interpreters.  
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  21. The third -party session shall be conducted as follows:  
 
a. All parties and third parties may be present during the entirety of this session.  
 
b. The Pan el shall first hear the oral statements of the third parties, who shall speak in 
reverse alphabetical order. Each third party making an oral statement at the third -party 
session shall provide the Panel and other participants with a provisional written vers ion of 
its statement before it takes the floor. If interpretation of a third party's oral statement is 
needed, that third party shall provide additional copies for the interpreters before taking 
the floor.  
 
c. Each third party should limit the duration of its statement to 15 minutes. If a third party 
considers that it requires more time for its opening statement, it should inform the Panel 
and the parties at least 10 days before the meeting, together with an estimate of the 
expected duration of its statemen t. The Panel will accord equal time to all third parties for 
their statements.  
 
d. After the third parties have made their statements, the parties shall be given the 
opportunity to pose questions to any third party for clarification on any matter raised in  
that third party's submission or statement.  
 
e. The Panel may subsequently pose questions to any third party.  
 
f. Following the third -party session:  
 
i. Each third party shall submit the final written version of its oral statement, no later 
than 5.00 p.m. on the first working day (Geneva time) following the meeting.  
 
ii. Each party may send in writing, within the timeframe to be established by the Panel 
before the end of the meeting, any questions to one or more third parties to which it 
wishes to  receive a response in writing.  
 
iii. The Panel may send in writing, within the timeframe to be established by the Panel 
before the end of the meeting, any questions to one or more third parties to which it 
wishes to receive a response in writing.  
 
iv. Each third party choosing to do so shall respond in writing to written questions from 
the Panel or a party, within a timeframe established by the Panel before the end of the 
meeting.  
 
Descriptive part and executive summaries  
 
22. The description of the argume nts of the parties and third parties in the descriptive part of the 
Panel report shall consist of executive summaries provided by the parties and third parties, which 
shall be annexed as addenda to the report. These executive summaries shall not in any way  serve 
as a substitute for the submissions of the parties and third parties in the Panel's examination of the 
case. 
 
23. Each party shall submit an integrated executive summary. The integrated executive summary 
shall summarize the facts and arguments as pr esented to the Panel in the party's first and 
second  written submissions and in its oral statements. The integrated executive summary may also 
include a summary of the party's responses to questions following the first substantive meeting and 
its responses  to the second set of questions and comments thereon following the second substantive 
meeting. The timing of the submission of the integrated executive summary shall be indicated in the 
timetable adopted by the Panel.  
 
24. Each integrated executive summary  shall be limited to 20 pages.  
 
25. The Panel may request the parties and third parties to provide executive summaries of facts 
and arguments presented in any other submissions to the Panel for which a deadline may not be 
specified in the timetable.  
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  26. Each third party shall submit an integrated executive summary of its arguments as presented 
in its written submission and statement in accordance with the timetable adopted by the Panel. This 
integrated executive summary may also include a summary of respon ses to questions, if relevant. 
The executive summary to be provided by each third party shall not exceed six  pages. If a  
third-party submission and/or oral statement does not exceed six pages in total, this shall serve as 
the executive summary of that thir d party's arguments unless that third party indicates that it does 
not wish for the submission and/or oral statement to serve as its executive summary, in which case 
it shall submit a separate executive summary.  
 
Interim review  
 
27. Following issuance of t he interim report, each party may submit a written request to review 
precise aspects of the interim report and request a further meeting with the Panel, in accordance 
with the timetable adopted by the Panel.  
 
28. If no further meeting with the panel is req uested, each party may submit written comments 
on the other party's written request for review. Such written comments shall be limited to the other 
party's written request for review and shall be submitted in accordance with the timetable adopted 
by the Pa nel. 
 
Interim and Final Report  
 
29. The interim report, as well as the final report before its official circulation, shall be kept strictly 
confidential and shall not be disclosed.  
 
Service of documents  
 
30. The following procedures regarding service of documents apply to all documents submitted by 
parties and third parties during the proceeding:  
 
a. Each party and third party shall submit all documents to the Panel by submitting them 
with the DS  Registry (office No. 2047).  
 
b. Each party and t hird party shall submit one paper copy of its submissions and one paper 
copy of its Exhibits to the Panel by 5.00  p.m. (Geneva time) on the due dates established 
by the Panel. The DS  Registrar shall stamp the documents with the date and time of 
submission.  The paper version submitted to the DS  Registry shall constitute the official 
version for the purposes of submission deadlines and the record of the dispute. If an 
exhibit is in a format that is impractical to submit as a paper copy, then the party may 
submit such exhibit in electronic format (email or on a CD -ROM or DVD). In this case, the 
cover page of the exhibit should indicate that the exhibit is only available in electronic 
format.  
 
c. Each party and third party shall also send an email to the DS Regi stry, at the same time 
that it submits the paper versions, attaching an electronic copy of all documents that it 
submits to the Panel, preferably in both Microsoft Word and PDF format. All such emails 
to the Panel shall be addressed to DSRegistry@wto.org, and copied to other 
WTO Secretariat staff whose email addresses have been provided to the parties during the 
proceeding. If it is not possible to attach all the Exhibits to one email, the submitting party 
or third party shall provide the DS Registry with f our copies of the Exhibits on CD -ROMs 
or DVDs.  
 
d. Each party shall serve any document submitted to the Panel directly on the other party. 
Each party shall, in addition, serve any submissions in advance of the first substantive 
meeting with the Panel direc tly on the third parties. Each third party shall serve any 
document submitted to the Panel directly on the parties and on all other third parties. A 
party or third party may serve its documents on another party or third party by email or 
other electronic f ormat acceptable to the recipient without having to serve a paper copy, 
unless the recipient party or third party has requested a paper copy at least five working 
days before their filing. Each party and third party shall confirm, in writing, that copies 
have been served on the parties and third parties, as appropriate, at the time it provides 
each document to the Panel.  WT/DS577/R/Add.1  
 
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e. Each party and third party shall submit its documents with the DS Registry and serve 
copies on the other party (and third parties if a ppropriate) by 5.00  p.m. (Geneva time) on 
the due dates established by the Panel.  
 
f. As a general rule, all communications from the Panel to the parties and third parties will 
be via email. In addition to transmitting them to the parties by email, the Pan el shall 
provide the parties with a paper copy of the Interim Report and the Final Report.  
 
Correction of clerical errors in submissions  
 
31. The Panel may grant leave to a party or third party to correct clerical errors in any of its 
submissions (includin g paragraph numbering and typographical mistakes). Any such request should 
identify the nature of the errors to be corrected, and should be made promptly following the filing 
of the submission in question.  
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  ANNEX A -2 
ADDITIONAL WORKING PROCEDURES CONCERNING  BUSINESS CONFIDENTIAL INFORMATION  
The following procedures apply to any business confidential information (BCI) submitted in the 
course of the Panel proceedings in DS577.  
1. For the purposes of these Panel proceedings, BCI includes : 
a. any information designated as such by the party submit ting it that was previously treated 
as confidential by the investigating authority in the anti -dumping and countervailing duty 
investigations at issue in this dispute unless the Panel decides it should not be treated as 
BCI for purposes of these Panel proc eedings based on an objection by a party pursuant to 
paragraph  4 below.  
b. any other information designated as such by the party submitting it, unless the Panel 
decides it should not be treated as BCI for purposes of these Panel proceedings based on 
an obj ection by a party pursuant to paragraph  4 below.  
2. Any information that is available in the public domain may not be designated as BCI. In 
addition, these procedures cease to apply to any BCI if the person that provided the information 
makes the informati on publicly available or agrees in writing to make the information publicly 
available.  
3. If the United States intends to submit BCI from the anti -dumping and countervailing duty 
investigations at issue to the Panel it shall, at the earliest possible date,  obtain an authorizing letter 
from the entity that submitted the BCI and provide such authorizing letter to the Panel, with a copy 
to the other party. If the European Union requires BCI from the anti -dumping and countervailing 
duty investigations at issue for the purpose of preparing its submissions or to submit that BCI to the 
Panel, the United States shall, at the earliest possible date after being requested by the 
European  Union, obtain an authorizing letter from the entity that submitted the BCI, provid e such 
authorizing letter to the Panel with a copy to the European Union, and provide the BCI to the 
European Union.  
4. If a party or third party considers that information submitted by the other party or a third  party 
should have been designated as BCI an d objects to its submission without such designation, it shall 
forthwith bring this objection to the attention of the Panel, the other party, and, where relevant, the 
third parties, together with the reasons for the objection. Similarly, if a party or thir d party considers 
that the other party or a third party designated information as BCI which should not be so 
designated, it shall forthwith bring this objection to the attention of the Panel, the other party, and, 
where relevant, the third parties, togethe r with the reasons for the objection. The Panel, in deciding 
whether information subject to an objection should be treated as BCI for purposes of these Panel 
proceedings, will consider whether disclosure of the information in question could cause serious 
harm to the interests of the originator(s) of the information.  
5. No person may have access to BCI except a Panelist, member of the Secretariat assisting the 
Panel, an employee of a party or third party, or an outside advisor to a party or third party for t he 
purposes of this dispute. Where a third party receives written submissions pursuant to the 
Working  Procedures, the third party shall receive a redacted version of any written submission 
containing BCI and redacted versions of exhibits thereto. The redac ted versions of the parties' 
written submissions received by third parties pursuant to the Working Procedures and redacted 
versions of exhibits thereto shall be sufficient to convey a reasonable understanding of the nature 
of the information at issue. A th ird party may request access to BCI submitted to the Panel. A party 
requested by a third party to provide that third party with access to BCI must provide such access 
promptly.  
6. A party or third party having access to BCI in these Panel proceedings shall  not disclose that 
information other than to persons authorized to have access to it pursuant to these procedures. Any WT/DS577/R/Add.1  
 
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  information designated as BCI under these procedures shall only be used for the purposes of this 
dispute. Each party and third party is r esponsible for ensuring that its employees and/or outside 
advisors comply with these procedures to protect BCI. BCI obtained under these procedures may be 
used only for the purpose of providing information and argumentation in this dispute and for no 
other  purpose.  
7. An outside advisor of a party or third party is not permitted access to BCI if that advisor is an 
officer or employee of an enterprise engaged in the production, sale, export, or import of the 
product(s) that was/were the subject of the anti -dumping and countervailing duty investigations at 
issue in this dispute, or an officer or employee of an association of such enterprises.  
8. A party submitting BCI shall mark the cover and/or first page of the document containing BCI, 
and each page of the document, to indicate the presence of such information. The specific 
information in question shall be placed between double brackets, as foll ows: [[xx,xxx.xx]]. The 
first page or cover of the document shall state "Contains Business Confidential Information", and 
each page of the document shall contain the notice "Contains Business Confidential Information" at 
the top of the page. A party submit ting BCI in the form of, or as part of, an Exhibit shall, in addition 
to the above, so indicate by putting "BCI" next to the exhibit number (e.g., Exhibit EU -1 (BCI), 
Exhibit  USA-1 (BCI)).  
9. Documents previously submitted to or created by the investigatin g authority of the party 
complained against containing information that has been designated as confidential or business 
proprietary information for purposes of the anti -dumping and countervailing duty investigations at 
issue in this dispute, and marked as business proprietary information, or words to that effect 
(including headers and bracketing), that have also been designated as BCI in this dispute, shall be 
deemed to comply with the requirement set out in paragraph  8. When a party submits a document 
previously submitted to or created by the investigating authority concerned, that party shall mark 
on the cover of the document "This document was submitted to or created by the [name of 
investigating authority] and retains its original confidentiality marking s". 
10. Any BCI that is submitted in binary -encoded or other electronic form shall be clearly marked 
with the statement "Business Confidential Information" on a label of the storage medium, and clearly 
marked with the statement "Business Confidential Infor mation" in the binary -encoded or other 
electronic files.  
11. In the case of an oral statement containing BCI, the party or third party making such a 
statement shall inform the Panel before making it that the statement will contain BCI, and the Panel 
will ensure that only persons authorized to have access to BCI pursuant to these procedures are in 
the room to hear that statement. The written versions of such oral statements submitted to the 
Panel shall be marked as provided for in paragraph  8. 
12. Any person  authorized to have access to BCI under the terms of these procedures shall store 
all documents and electronic storage media containing BCI in such a manner as to prevent 
unauthorized access to such information.  
13. The Panel will not disclose BCI, in its report or in any other way, to persons not authorized 
under these procedures to have access to BCI. The Panel may, however, make statements of 
conclusion drawn from such information. Before the Panel circulates its final report to the Members, 
the Panel wi ll give each party an opportunity to review the report to ensure that it does not contain 
any information that the party has designated as BCI.  
14. Submissions, exhibits, and other documents or recordings containing BCI will be included in 
the record forwa rded to the Appellate Body in the event of an appeal of the Panel's Report.  
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  ANNEX A -3 
COMMUNICATION FROM THE PANEL TO THE PARTIES OF 18 SEPTEMBER  2020 
CONCERNING CERTAIN PROCEDURAL MATTERS  
The Panel would like to inform the parties concerning the following requests raised in this dispute.  
 
The United States' request for a preliminary ruling  
 
In its first written submission, the United States requested a preliminary ruling that claims under 
Article  15.4 of the SCM  Agreement and Article  3.4 of the Anti -Dumping  Agreement are outside the 
Panel's terms of reference, arguing that neither claim was  identified in the European Union's 
consultations request or panel request. The Panel asked the European Union to comment on the 
United States' preliminary ruling request and received those comments on 20  May 2020.  
 
Having carefully considered the parties'  arguments as well as the language contained in the 
European Union's panel request, the Panel has decided not to make the preliminary ruling that has 
been requested by the United States . In particular, the Panel considers that, in citing Article  15.1 of 
the SCM  Agreement and Article  3.1 of the Anti -Dumping  Agreement, and in referring to certain 
language contained in Article  15.1 and Article  3.1 to make an "objective examination of … the 
consequent impact of [subsidized/dumped] imports on domestic producers of such products", the 
European Union has provided a brief summary of the legal basis of the complaint sufficient to meet 
the minimum requirements of Article  6.2 of the DSU. The Panel thus considers the European Union's 
claims under Article  15.4 of the SCM  Agreement and Article  3.4 of the Anti -Dumping  Agreement to 
be within its terms of reference. The full rationale for the Panel's decision will be set out in its 
final report.  
 
The Panel therefore invites the parties to further address these claims in their  upcoming submissions 
to the Panel.  
 
The European Union's request for leave to address the USDOC's de jure specificity remand 
redetermination  
 
On 2 July 2020, the European Union requested leave from the Panel to address the results of a 
remand redetermination concerning the USDOC's de jure specificity determination, which was issued 
on 29  May 2020, following a 17  January  2020 remand order of the U.S. Court  of International Trade. 
A copy of the remand redetermination was first submitted to the Panel on 6  June 2020 as  
Exhibit  EU-80 with the European Union's responses to the Panel's advance questions. The Panel 
asked the United States to comment on the Europe an Union's request and received those comments 
on 10  July 2020.  
 
The Panel observes that the remand redetermination was published after the Panel was established. 
Notwithstanding, the Panel considers that the description of the challenged measures set out in the 
European Union's panel request is sufficiently broad to cover the remand redetermination. Moreover, 
a review of the content of the USDOC's de jure specificity redetermination reveals that the remand 
redetermination upholds and confirms the USDOC 's analysis in the original determination, providing 
further clarification and explanation as to how the USDOC considers the granting authority expressly 
limits access to the subsidy. In these circumstances, the Panel considers that those aspects of the 
remand redetermination with respect to the matter of de jure specificity are within  the Panel's terms 
of reference, despite the fact that the remand redetermination was not in existence at the time that 
this Panel was established.  
 
Accordingly, the Panel allows the European Union to address the remand redetermination with 
respect to the matter of de jure specificity in its submissions, on the basis that the remand 
redetermination is a measure or is part of the measure that is before the Panel in this dispute. The 
full rationale for the Panel's decision will be set out in its final report.  
 WT/DS577/R/Add.1  
 
- 14 - 
 
  ANNEX A -4 
ADDITIONAL WORKING PROCEDURES OF THE PANEL CONCERNING HOLDING A  
SUBSTANTIVE MEETING  CONDUCTED VIA CISCO WEBEX  
Adopted on 9 October 2020  
 
General  
 
1. These additional Working Procedures set out terms for holding a substantive meeting with the 
Panel via Cisco WebEx Events.  
 
Definitions  
 
2. For the purposes of these additional Working Procedures:  
 
"DORA" means the Disputes Online Registry Application.  
"Host"  means the designated person within the WTO Secretariat responsible for the 
management of the platform for remote participants to participate in the meeting with the 
Panel.  
"Participant"  means any authorized person attending the meeting, either remotely or from 
the designated room at the WTO premises, including the Members of the Panel, the 
WTO Secretariat staff involved in the dispute and the organization of the meeting, memb ers 
of the parties' and third parties' delegations, and interpreters.  
"Platform"  means the Cisco WebEx Events platform.  
Equipment and technical requirements  
 
3. Each party and third party shall be responsible for ensuring that the members of its delegation  
participating in the meeting with the Panel by remote means join the hearing using the designated 
platform, and meet the minimum equipment and technical requirements set out by the platform 
provider for the effective conduct of the meeting.  
 
4. To the ext ent possible, each party and third party shall ensure that each member of its 
delegation connecting to the meeting remotely:  
 
(1) Uses a high -speed internet connection;  
 
(2) Accesses the meeting via desktop or laptop computer rather than by smartphone or t ablet;  
 
(3) Ensures that the devices they use are adequately charged and that power cables or  
back-up batteries are available;  
 
(4) Ensures that their microphone provides sufficient amplification and clarity;  
 
(5) Ensures that their camera creates a suffi ciently clear image;  
 
(6) Eliminates any background noise; and  
 
(7) Speaks slowly in their statements and interventions.  
 
Technical support  
 
5. (1) In light of the Secretariat's limited ability to offer remote assistance during, and in advance 
of the meeting, each party and third party is responsible for providing its own technical support 
to the members of its delegation.  WT/DS577/R/Add.1  
 
- 15 - 
  (2) The host will assist participants in accessing and using the platform in preparation of, and 
during the course of, the meeting with the Panel.  
 
Pre-meeting  
 
Registration  
 
6. Each party and third party shall provide to the Panel the list of the members of its delegation 
no later than  5.00 p.m. (Geneva time) 7 working days before the first day of the meeting with the 
Panel. Such lis t shall include all members of each party's and third party's delegation, and, to the 
extent possible, shall indicate whether they will be participating in the meeting remotely or from the 
designated room at the WTO premises. Each party and third party sha ll limit the number of members 
of its delegation participating at the WTO premises to no more than three  persons.  
 
Advance testing  
 
7. Each group of remote participants (members of each party's and third party's delegation and 
interpreters) will hold two testing sessions with the Secretariat before the meeting with the Panel: 
a separate one for each group, and a joint session with all remote participants in the meeting. Such 
test sessions will seek to reflect, as far as possible, the conditions of the proposed meeting. Remote 
participants should make themselves available for the test sessions.  
 
Confidentiality and security  
 
8. The meeting shall be confidential.  
 
9. Each party and third party shall follow any security and confidentiality protocols and gu idelines 
set by the Panel in advance of the meeting.  
 
10. The remote participants shall connect to the meeting through a secure internet connection 
and shall avoid the use of an open or public internet connection.  
 
Conduct of the meeting  
 
Recording  
 
11. The meeting will be recorded in its entirety via the platform. The recording of the meeting will 
form part of the panel record.  
 
12. The parties and third parties are strictly prohibited from:  
 
(1) Recording, via audio, video or screenshot, the meeting or any part thereof; and  
 
(2) Permitting any non -authorized person to record, via audio, video or screenshot, the 
meeting or any part thereof.  
 
Access to the virtual meeting room  
 
13. The participants shall access the virtual meeting room eithe r remotely in accordance with 
paragraph  4 of these additional Working Procedures or from the designated room at the 
WTO premises.  
 
14. (1) The host will invite remote participants via email to join the virtual meeting room.  
 
(2) For security reasons, acces s to the virtual meeting will be password -protected and limited 
to participants. Participants shall not forward or share the virtual meeting link or password to 
unauthorized persons.  
 
(3) Each party and third party shall ensure that only authorized partici pants from its delegation 
join the virtual meeting room.  
 WT/DS577/R/Add.1  
 
- 16 - 
  Advance log -on 
 
15. (1) The virtual meeting room will be accessible 60 minutes in advance of the scheduled start 
time of the meeting.  
 
(2) In order to ensure that the meeting will start as scheduled, participants accessing  the 
meeting remotely must login to the platform at least 30 minutes in advance of the scheduled 
start time of the meeting.  
 
(3) Participants accessing the meeting remotely will be placed in a virtual lobby where they 
will remain until the Panel is ready to start the meeting, at which time the host will admit 
them to the meeting.  
 
Document sharing  
 
16. (1) Before each party or third  party takes the floor, it shall provide the Panel and other 
participants at the meeting with a provisional written version of its statement through DORA.  
 
(2) Any participant wishing to share a document with the other participants during the meeting 
will do so through DORA.  
 
Communication breakdown  
 
17. Each party and third  party will  designate a contact person who can liaise with the host during 
the course of the meeting to report any technical issues that arise with respect to the platform. The 
parties and third parties shall immediately notify the Panel of any technical or connectiv ity issues 
affecting the participation of their delegation, or a member of their delegation, in the meeting. To 
do so, the party or third party that experiences the technical or connectivity issue shall:  
 
(1) If possible, immediately intervene at the meeti ng and briefly state the nature of the issue 
experienced; or  
 
(2) If doing so is not possible, immediately contact the host and explain the nature of the 
issue experienced. The host can be contacted via the platform, by sending an email to 
olga.falguerasalamo@wto.org , or by calling at +41 22 739 6746.  
 
18. The Panel may postpone the proceedings until the technical issue is resolved or continue the 
proceedings with those that continue to be connected or are physically present in the meeting room 
at the WTO.  
 
Participation  
 
19. (1) If a participant attending the meeting remotely wishes to take the floor, the participant 
should use the "raise a hand" function in the platform, so that the Panel can give the floor to 
the participant and allow the participant to unmute their microphone and turn their camera 
on. 
 
(2) If a participant attending the meeting from the WTO premises wishes to take the floor, 
the participant should raise their placard/flag  in the designated room at the WTO premises, 
so that the host can register the request on the virtual meeting platform and the Panel can 
give the floor to the participant. When the participant takes the floor, the camera will 
automatically move to the part icipant, once their microphone is turned on.  
 
Structure of the substantive meeting with the parties  
 
20. The substantive meeting of the Panel with the parties will be conducted as follows:  
 
(1) On the first meeting day, the Panel will invite the European U nion to make an opening 
statement to present its case first. Subsequently, the Panel will invite the United States to 
present its point of view. Before each party takes the floor, the party shall provide the Panel 
and other participants at the meeting with  a provisional written version of its statement by 
uploading it to DORA. Each party should avoid lengthy repetition of the arguments in its WT/DS577/R/Add.1  
 
- 17 - 
  submissions. Each party shall limit the duration of its opening statement to 75 minutes. After 
the conclusion of the  opening statements, the Panel shall give each party the opportunity to 
make comments on the other party's statement.  
 
(2) On the second meeting day, the Panel may pose questions to the parties, which were sent 
to the parties in advance. Once the questioni ng has concluded, the Panel will afford each party 
an opportunity to present a closing statement, with the European Union presenting its 
statement first. Before each party takes the floor, it shall provide the Panel and other 
participants with a provisiona l written version of its closing statement, if one is available, by 
uploading it to DORA.  Each party shall limit the duration of its closing statement to 30 minutes.  
 
(3) Following the meeting:  
 
a. Each party shall submit the final written version of its o pening statement no later 
than 5.00 p.m. (Geneva time) on the first working day following the meeting. By the same 
deadline, each party shall also submit the final written version of any prepared closing 
statement that it delivered at the meeting.  
 
b. Each party may send in writing, no later than  5.00 p.m. (Geneva time) on the 
fifth working  day following the meeting, any questions to the other party to which it wishes 
to receive a response in writing.  
 
c. The Panel will endeavour to send in writing, no late r than  5.00 p.m. (Geneva time) on the 
fifth working day following the meeting, any questions to the parties to which it wishes to 
receive a response in writing.  
 
d. Each party shall respond in writing to the questions from the Panel, and to any questions 
posed by the other party, within the timeframe established by the Panel before the end of 
the meeting.  
 
21. The above format and structure are without prejudice to how the Panel decides to conduct 
subsequent meeting(s) with the parties.  
 
Structur e of the third -party session  
 
22. The third -party session will be conducted as follows:  
 
(1) All parties and third parties may be present during the entirety of this session.  
 
(2) The Panel will hear the oral statements of the third parties, who shall spea k in reverse 
alphabetical order. Each third party making an oral statement at the third -party session shall 
provide the Panel and other participants with a provisional written version of its statement by 
uploading it on DORA  at the start of the third -party session. Each third party shall limit the 
duration of its statement to 15 minutes, and avoid repetition of the arguments already in its 
submission.  
 
(3) Following the third -party session:  
 
a. Each third party shall submit the final written version of its oral statement no later 
than 5.00 p.m. (Geneva time) on the first working day following the third -party session.  
 
b. Each party may send in writing, no later than  5.00 p.m. (Geneva time) on the 
fifth working  day following the meeting, any questions to one or more third parties to 
which it wishes to receive a response in writing.  
 
c. The Panel may send in writing, no later than  5.00 p.m. (Geneva time) on the 
fifth working  day following the meeting, any questions to one or more third parties to 
which it wishe s to receive a response in writing.  
 
d. Each third party choosing to do so shall respond in writing to written questions from the 
Panel or a party, within a timeframe established by the Panel before the end of the 
meeting.  WT/DS577/R/Add.1  
 
- 18 - 
   
Relationship with the Working Pr ocedures of the Panel adopted on 6 January 2020  
 
23. These additional Working Procedures complement the Working Procedures of the Panel 
adopted on 6  January  2020. To the extent that these additional Working Procedures conflict with the 
Working Procedures of the Panel, these additional Working Procedures shall prevail.  
 WT/DS577/R/Add.1  
 
- 19 - 
 
  ANNEX A -5 
ADDITIONAL WORKING PROCEDURES OF THE PANEL CONCERNING HOLDING A  
SUBSTANTIVE MEETING CONDUCTED VIA CISCO WEBEX  
Adopted on 30 November 2020  
 
General  
 
1. These additional Working Procedures set out terms for holding a substantive meeting with the 
Panel via Cisco WebEx Events.  
 
Definitions  
2. For the purposes of these additional Working Procedures:  
 
"DORA" means the Disputes Online Registry Appli cation.  
"Host"  means the designated person within the WTO Secretariat responsible for the 
management of the platform for remote participants to participate in the meeting with the 
Panel.  
"Participant"  means any authorized person attending the meeting, eith er remotely or from 
the designated room at the WTO premises, including the Members of the Panel, the 
WTO Secretariat staff involved in the dispute and the organization of the meeting, members 
of the parties' delegations, and interpreters.  
"Platform"  means the Cisco WebEx Events platform.  
Equipment and technical requirements  
 
3. Each party shall be responsible for ensuring that the members of its delegation participating 
in the meeting with the Panel by remote means join the hearing using the designated platform, and 
meet the minimum equipment and technical requirements set out by  the platform provider for the 
effective conduct of the meeting.  
 
4. To the extent possible, each party shall ensure that each member of its delegation connecting 
to the meeting remotely:  
(1) Uses a high -speed internet connection;  
 
(2) Accesses the meeting  via desktop or laptop computer rather than by smartphone or tablet;  
 
(3) Ensures that the devices they use are adequately charged and that power cables or  
back-up batteries are available;  
 
(4) Ensures that their microphone provides sufficient amplificati on and clarity;  
 
(5) Ensures that their camera creates a sufficiently clear image;  
 
(6) Eliminates any background noise; and  
 
(7) Speaks slowly in their statements and interventions.  
 WT/DS577/R/Add.1  
 
- 20 - 
 
  Technical support  
 
5. (1) In light of the Secretariat's limited ability to offer remote assistance during, and in advance 
of the meeting, each party is responsible for providing its own technical support to the 
members of its delegation.  
 
(2) The host will assist participants in accessing and using the platform in preparation of, and 
during the course of, the meeting with the Panel.  
 
Pre-meeting  
 
Registration  
 
6. Each party shall provide to the Panel the list of the members of its delegation no later 
than 5:00 p.m. (Geneva time) 7 working days before the first day of the meeting with the Panel. 
Such list shall include all members of each party's delegation, and, to the extent possible, shall 
indicate whether they will be participating in the meeting remotely or from the designated room at 
the WTO premises. Each party shall  limit the number of members of its delegation participating at 
the WTO premises to no more than three  persons.  
 
Advance testing  
 
7. The Secretariat may, as appropriate, hold two testing sessions with each group of remote 
participants (members of each part y's delegation) before the meeting with the Panel: a separate 
one for each group, and a joint session with all remote participants in the meeting. Such test sessions 
will seek to reflect, as far as possible, the conditions of the proposed meeting. Remote p articipants 
should make themselves available for the test sessions.  
 
Confidentiality and security  
 
8. The meeting shall be confidential.  
 
9. Each party shall follow any security and confidentiality protocols and guidelines set by the 
Panel in advance of the meeting.  
 
10. The remote participants shall connect to the meeting through a secure internet connection 
and shall avoid the use of an open or public internet connection.  
 
Conduct of the meeting  
 
Recording  
 
11. The meeting will be recorded in  its entirety via the platform. The recording of the meeting will 
form part of the panel record.  
 
12. The parties are strictly prohibited from:  
 
(1) Recording, via audio, video or screenshot, the meeting or any part thereof; and  
 
(2) Permitting any non -authorized person to record, via audio, video or screenshot, the 
meeting or any part thereof.  
 
Access to the virtual meeting room  
 
13. The participants shall access the virtual meeting room either remotely in accordance with 
paragrap h 4 of these additional Working Procedures or from the designated room at the 
WTO premises . 
 
14. (1) The host will invite remote participants via email to join the virtual meeting room.  
 WT/DS577/R/Add.1  
 
- 21 - 
 
  (2) For security reasons, access to the virtual meeting will be passw ord-protected and limited 
to participants. Participants shall not forward or share the virtual meeting link or password 
with unauthorized persons.  
 
(3) Each party shall ensure that only authorized participants from its delegation join the virtual 
meeting r oom. 
 
Advance log -on 
 
15. (1) The virtual meeting room will be accessible 60 minutes in advance of the scheduled start 
time of the meeting.  
 
(2) In order to ensure that the meeting will start as scheduled, participants accessing  the 
meeting remotely must l ogin to the platform at least 30 minutes in advance of the scheduled 
start time of the meeting.  
 
(3) Participants accessing the meeting remotely will be placed in a virtual lobby where they 
will remain until the Panel is ready to start the meeting, at whic h time the host will admit 
them to the meeting.  
 
Document sharing  
 
16. (1) Before each party takes the floor, it shall provide the Panel and other participants at the 
meeting with a provisional written version of its statement through DORA.  
 
(2) Any participant wishing to share a document with the other participants during the meeting 
will do so through DORA.  
 
Communication breakdown  
 
17. Each party will designate a contact person who can liaise with the host during the course of 
the meeting to report any technical issues that arise with respect to the platform. The parties shall 
immediately notify the Panel of any technical or connectivity  issues affecting the participation of 
their delegation, or a member of their delegation, in the meeting. To do so, a party that experiences 
the technical or connectivity issue shall:  
 
(1) If possible, immediately intervene at the meeting and briefly state  the nature of the issue 
experienced; or  
 
(2) If doing so is not possible, immediately contact the host and explain the nature of the 
issue experienced. The host can be contacted via the platform, by sending an email to 
olga.falguerasalamo@wto.org , or by calling at +41 22 739 6746.  
 
18. The Panel may postpone the proceedings until the technical issue is resolved or continue the 
proceedings with those that continue to be connected or are physically present i n the meeting room 
at the WTO.  
 
Participation  
 
19. (1) If a participant attending the meeting remotely wishes to take the floor, the participant 
should use the "raise a hand" function in the platform , so that the Panel can give the floor to 
the participant  and allow the participant to unmute their microphone and turn their camera 
on. 
 
(2) If a participant attending the meeting from the WTO premises wishes to take the floor, 
the participant should raise their placard/flag in the designated room at the WTO pr emises, 
so that the host can register the request on the virtual meeting platform and the Panel can 
give the floor to the participant. When the participant takes the floor, the camera will 
automatically move to the participant, once their microphone is tur ned on.  
 WT/DS577/R/Add.1  
 
- 22 - 
 
  Structure of the substantive meeting with the parties  
 
20. The substantive meeting of the Panel with the parties will be conducted as follows:  
 
(1) On the first meeting day, the Panel will invite the United States to make an opening 
statement to present its case first. Subsequently, the Panel will invite the European Union to 
present its point of view. If the United States chooses not to avail its elf of that right, the 
European Union shall present its opening statement first, followed by the United States. Before 
each party takes the floor, the party shall provide the Panel and other participants at the 
meeting with a provisional written version of  its statement by uploading it to DORA. Each 
party should avoid lengthy repetition of the arguments in its submissions. Each party shall 
limit the duration of its opening statement to 75 minutes. After the conclusion of the opening 
statements, the Panel sh all give each party the opportunity to make comments on the other 
party's statement.  
 
(2) On the second meeting day, the Panel may pose questions to the parties, which were sent 
to the parties in advance. Once the questioning has concluded, the Panel will afford each party 
an opportunity to present a closing statement, with the party that presented its opening 
statement first presenting its closing statement first. Before each party takes the floor, it shall 
provide the Panel and other participants with a p rovisional written version of its closing 
statement, if one is available, by uploading it to DORA.  Each party shall limit the duration of 
its closing statement to 30 minutes.  
 
(3) Following the meeting:  
 
a. Each party shall submit the final written version  of its opening statement no later 
than 5.00 p.m. (Geneva time) on the first working day following the meeting. By the same 
deadline, each party shall also submit the final written version of any prepared closing 
statement that it delivered at the meeting.  
 
b. Each party may send in writing, no later than  5.00 p.m. (Geneva time) on the fifth working 
day following the meeting, any questions to the other party to which it wishes to receive 
a response in writing.  
 
c. The Panel will endeavour to send in writing , no later than  5.00 p.m. (Geneva time) on the 
fifth working day following the meeting, any questions to the parties to which it wishes to 
receive a response in writing.  
 
d. Each party shall respond in writing to the questions from the Panel, and to any qu estions 
posed by the other party, within the timeframe established by the Panel before the end of 
the meeting.  
 
21. The above format and structure are without prejudice to how the Panel decides to conduct 
any subsequent meeting(s) with the parties.  
 
Relationship with the Working Procedures of the Panel adopted on 6  January  2020  
 
22. These additional Working Procedures complement the Working Procedures of the Panel 
adopted on 6  January  2020. To the extent that these additional Working Procedures conflict with the 
Working Procedures of the Panel, these additional Working Procedures shall prevail.  
 WT/DS577/R/Add.1  
 
- 23 - 
 
  ANNEX A -6 
ADDITIONAL WORKING PROCEDURES OF THE  PANEL: OPEN MEETINGS  
(DELAYED ONLINE BROADCAST)  
Adopted on 25 June 2021  
1. Pursuant to paragraphs  10 and 17 of the Working Procedures of the Panel adopted on 
6 January  2020, and in light of the continuing COVID -19-related restrictions imposed on gatherings 
and international travel, the Panel has agreed to make the relevant portions of the recordings of the 
substantive meetings with the parties, and the third -party session (subject to agreement of the 
relevant third parties), available to the publi c in a delayed online broadcast format set out in this 
additional working procedures. Both substantive meetings were held in a virtual format with the 
possibility for limited participation on the WTO  premises.  
2. The Panel will make available to the public , via a registration process, the audio recordings of 
the relevant portions of the substantive meetings with the parties and the third -party session, 
together with the "as delivered" written versions of the parties' statements at the substantive 
meetings, the consenting third parties' statements at the third -party session, and the written 
versions of the parties' responses to the Panel's questions at the substantive meetings (Materials). 
The Materials will be available in English and no interpretation or tr anslation will be provided.  
3. The Materials will be available to the registered participants through a password -protected 
web-link during a limited period of 72  hours. At the beginning of the period, all registered 
participants will receive an email with the web -link and access credentials. The registered 
participants may access the web -link at any time within the period to listen to and/or read the 
Materials. At the end of the period, the Materials will no longer be accessible.  
4. The parties shall inform  the Panel by a deadline set by the Panel, which shall be no later than 
2 weeks before the delayed online broadcast, whether any parts of their relevant Materials shall be 
redacted in order to protect private or confidential information.  
5. All registered participants will be informed that sharing the web -link or access credentials with 
other persons and/or any form of recording or sharing the Materials with other persons is prohibited. 
However, the parties and the consenting third parties recognize that, g iven the format of the 
broadcast, the Panel and the WTO  Secretariat cannot guarantee or supervise the registered 
participants' compliance with this rule.  
6. Access to the Materials will be open to officials of WTO  Members, Observers, staff members 
of the W TO Secretariat, journalists, representatives of non -governmental organizations, and the 
interested members of the public upon registration. No later than two weeks before the delayed 
online broadcast, the WTO  Secretariat will place a notice on the WTO  website informing the public 
of the delayed online broadcast. The notice shall include a link to register directly with the WTO. The 
notice shall also indicate the beginning, duration, and the end of the period during which the 
Materials will be available. The  deadline for the registration shall be 10  days from the date of the 
publication. The WTO  Secretariat will inform the parties and the consenting third parties of publishing 
the notice no later than 2  days before the publication.  
 WT/DS577/R/Add.1  
 
- 24 - 
 
  ANNEX A -7 
INTERIM REVIEW  
1  INTRODUCTION  
1.1.  The Panel issued its Interim Report to the parties on 7  July 2021. Both parties submitted 
written requests for review of precise aspects of the Interim Report on 21  July 2021, and written 
comments on each other's  written requests on 28  July 2021. Neither party requested the Panel to 
hold an interim review meeting.  
1.2.  In accordance with Article  15.3 of the DSU, this Annex responds to the issues raised by the 
parties in the context of the interim review. Apart from the specific changes described in the following 
section, we have also corrected a number of typographical errors and other non -substan tive errors 
throughout the Report, including those identified by the parties, which are not referred to specifically 
below. The footnote numbers in the Final Report have changed due to these revisions. The text 
below refers to the numbering in the Final Re port, with the numbering in the Interim Report in 
parentheses for ease of reference, if different. The paragraph numbers in the Final Report remain 
unchanged.  
2  SPECIFIC REQUESTS FOR REVIEW SUBMITTED BY THE PARTIES  
2.1  Paragraph 7.8  
2.1.  The United Stat es requests the Panel to amend paragraph 7.8 to additionally indicate that, as 
part of the judicial review proceedings before the USCIT, the USDOC's  Remand Redetermination 
further explained its interpretation of section 771(5A)(D)(i) of the Tariff Act of 1 930 for the de jure 
specificity finding. According to the United States, as worded, paragraph 7.8 of the Interim Report 
incorrectly implies that the judicial review has ended, and that the USDOC affirmed its own 
determination.1 The European Union did not comment on this request.  
2.2.  We have revised paragraph 7.8 in light of the United States'  comments. In addition, we have 
clarified that the USDOC also made no changes to the amended final determination and 
countervailing duty order with its Remand Redete rmination2 and affirmed its finding made in the 
final determination that the BPS provides benefits that are de jure specific to olive growers.3 
2.2  Footnote 63 (footnote 62 of the Interim Report)  
2.3.  The European Union requests the Panel to revise foo tnote 62 to indicate that the 
European  Union could not have filed Exhibit EU -81 at an earlier stage and further indicate that the 
European  Union provided reasons why it considered the contents of Exhibit EU -81 relevant for the 
present dispute.4 
2.4.  The United States objects to the European Union's  request, arguing that the footnote already 
sufficiently explains the reasons for the Panel's  rejection of Exhibit EU -81. Should the Panel make 
the proposed change, the United States requests the Panel to also r eflect its argument that the 
USDOC's  Remand Redetermination was not a measure at issue, and that the European Union had 
failed to identify any basis under the Working Procedures to accept the European Union's  untimely 
submission of Exhibit EU -81.5 
2.5.  We reject the European Union's  request. As currently drafted, the text emphasizes that the 
Panel's  decision not to accept Exhibit EU -81 was based on the late timing of the submission. The 
text also makes clear that the decision was taken after hearing the p arties'  views.  
 
1 United States'  request for interim review, para.  4. 
2 Remand Redetermination, (Exhibit EU -80), p.  2. 
3 Remand Redetermination, (Exhibit EU -80), p.  50. 
4 European Union's  request for interim review, para.  4. 
5 United States'  comments on the European Union's  request for interim review, para.  12. WT/DS577/R/Add.1  
 
- 25 - 
  2.3  Paragraphs 7.16 and 7.34, and footnote 74 (footnote 73 of the Interim Report)  
2.6.  The United States requests the Panel to modify the reference in footnote 74 (footnote 73 of 
the Interim Report) to refer to the preliminary and final de terminations. According to the 
United  States, in the event that the third sentence of paragraph 7.16 intends to describe the 
USDOC's preliminary and final determinations, footnote 74 (footnote 73 of the Interim Report) 
should refer to those determinations,  and not to the Remand Redetermination.6 The United States 
further requests the Panel to modify the language used in the sixth sentence of paragraph 7.16 and 
the first sentence of paragraph 7.34 to indicate that the USDOC further explained and elaborated 
upon its original findings in the Remand Redetermination.7 The European Union did not comment on 
this request.  
2.7.  We have revised footnote 74 to refer to the preliminary and final issues and decision 
memoranda, while retaining the reference to the Remand Redetermination. We have also revised 
the sixth sentence of paragraph 7.16 and the first sentence of paragrap h 7.34 to indicate that the 
USDOC further explained and elaborated upon its original de jure specificity findings in the 
Remand  Redetermination. For the sake of clarity, we have also indicated that the 
Remand  Redetermination affirmed the USDOC's finding th at the BPS and GP programmes provided 
benefits that were de jure specific to olive growers.8 
2.4  Paragraph 7.29  
2.8.  The European Union requests the Panel to delete the first sentence of paragraph 7.29, which 
reads: "[w]e do not understand the parties to disagree with either of these propositions". According 
to the European Union, it is not clear which are the two propositions the Panel refers to, contending 
that the preceding paragraph 7.28 appears to contain more than two propositions. The 
European  Union also submits it does not share the views expressed by the Panel in paragraph 7.28, 
and therefore the paragraph incorrectly portrays the European Union as being in agreement with 
the Panel's views.9 
2.9.  The United States agrees with the European Union's  request to delete the first sentence of this 
paragraph for the sake of clarity.10 
2.10.   We have made the reque sted change to enhance clarity.  
2.5  Paragraph 7.35  
2.11.   The United States submits that paragraph 7.35 characterizes preceding excerpts from the 
Remand Redetermination but, as written, could be mistaken as describing the USDOC's  legally 
distinct prelimin ary or final determinations. The United States requests the Panel to clarify that 
paragraph 7.35 only characterizes excerpts from the Remand Redetermination.11 The 
European  Union did not comment on this request.  
2.12.   We reject the United States'  request.  While the specific quotes reproduced in paragraph 7.34 
of the Report are from the Remand Redetermination, these quotes summarize the USDOC's  analysis 
in its earlier preliminary and final determinations. In this regard, paragraph 7.34 explains that "the 
USDOC recalls and explains the summary of the analysis set out in its earlier determinations".  The 
quoted language from the Remand Redetermination also acknowledges this.  The change proposed 
by the United States would therefore mischaracterize the Panel's as sessment of the USDOC's de jure 
specificity findings, which was based on the totality of the USDOC's  determinations. To further clarify 
the relationship between the statements in the Remand Redetermination and the USDOC's  original 
determination, we have indicated in footnote 91 (footnote 90 of the Interim Report) that the final 
 
6 United States'  request for interim review, para.  5. 
7 United States'  request for interim review, paras.  5-6. 
8 See para.  2.2 above.  
9 European Union's  request for interim review, para.  5 (referring to European Union's  25 February  2021 
response to Panel question No.  6). 
10 United States'  comments on the European Union's  request for interim review, para.  13. 
11 United States'  request for interim review, para.  7. WT/DS577/R/Add.1  
 
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  issues and decision memorandum contains language similar to the one reproduced in the first quote 
of paragraph 7.34 of the Report.  
2.6  Paragraph 7. 37 
2.13.   The European Union requests the Panel to delete the fourth sentence of paragraph 7.37, which 
reads: "unlike the European Union, we do not see in the terms of Article  2.1(a) any per se prohibition 
on the relevance and consideration of facts pertai ning to a past subsidy programme no longer in 
force for the purpose of determining de jure specificity". The European Union contends that it did 
not argue that the terms of Article  2.1(a) of the SCM Agreement contain any per se prohibition on 
the relevance  and consideration of facts pertaining to a past subsidy programme no longer in force 
for the purpose of determining de jure specificity. Rather, the European Union submits that its 
position is reflected in footnote 101 (footnote 100 of the Interim Report) .12 
2.14.   The United States contends that the sentence accurately describes what the European Union 
argued in its first written submission.13 The United States submits that, although the European Union 
now claims to hold a more nuanced view, the European Union did not retract the above argument 
in its subsequent submissions to the Panel. If the Panel were to consider making any change, the 
United States requests that the Panel only delete the language "[t]hus, unlike the European Union" 
at the outset of th e paragraph, since the sentence reflects the Panel's  finding and not solely the 
European Union's  position.14 
2.15.   We have revised the fourth sentence of the paragraph by deleting "unlike the European Union" 
while retaining the remainder of the sentence t hat concerns the Panel's  finding.  
2.7  Paragraph 7.38  
2.16.   The European Union requests the Panel to add explanation to the second sentence of 
paragraph 7.38 indicating that the USDOC's  de jure specificity determination was based exclusively 
on an analysi s of the relevant legislation pursuant to which the granting authorities operate the 
subsidy programmes at issue, and not on acts of the granting authority.15 The European Union 
submits that the proposed clarification should be added to avoid any potential  misunderstanding.16 
2.17.   The United States contends that the first and second sentences of paragraph 7.38 already 
state that the USDOC's  determination concerned the legislation (i.e. the BPS and GP programmes) 
pursuant to which the granting authority op erates  and therefore, the additional text proposed by the 
European Union is superfluous.17 
2.18.   The first sentence of paragraph 7.38 indicates that the USDOC's  determination of de jure 
specificity concerned subsidies provided under the BPS and GP programmes, as implemented by the 
GOS. The second sentence further provides that the USDOC's  factual finding that the BPS rules 
governing the amount of subsidy available to eligible farmers explicitly referred to and incorporated 
certain features of the SPS programme (and through the SPS programme, the COMOF 
programme).  We consider the language in para graph 7.38 clearly sets out the basis for the 
Panel's  finding in relation to legislation governing the underlying programmes. Therefore, we see no 
basis to make the change requested by the European Union.  
2.8  Paragraph 7.43  
2.19.   The European Union reque sts the Panel to quote language from Aceitunas 
Guadalquivir's  preliminary determination calculation memorandum (Exhibit EU -36) and preliminary 
issues and decision memorandum (Exhibit EU -1) in paragraph 7.43 to clarify that the 
European  Union's  position is supported by certain passages from Aceitunas 
 
12 European Union's  request for interim review, para.  6 (referring to fn 100 of the Interim Report;  
10 June 2020 res ponse to Panel question No.  4; and 8  September  2020 response to Panel question No.  1(b)).  
13 United States'  comments on the European Union's  request for interim review, para.  14 (referring to 
European Union's  first written submission, para.  240).  
14 United S tates'  comments on the European Union's  request for interim review, para.  14. 
15 European Union's  request for interim review, para.  7. 
16 European Union's  request for interim review, para.  7. 
17 United States'  comments on the European Union's  request for interim review, para.  15. WT/DS577/R/Add.1  
 
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  Guadalquivir's  preliminary determination calculation memorandum and the preliminary issues and 
decision memorandum, and not solely the USDOC's  final issues and decision memorandum.18 
2.20.   The United States sub mits that, if the Panel makes the addition requested by the 
European  Union, the Panel should also include the United States'  explanations for why those 
references were irrelevant, i.e. because they concerned an evaluation under the conditions of the 
USDOC' s attribution of benefit regulations, not de jure specificity. The United States asks the Panel 
to add this explanation in footnote 117 (footnote 116 of the Interim Report).19 
2.21.   We have decided to reject the European Union's  request as we do not consider the proposed 
addition is directly relevant to the Panel's  discussion in paragraph 7.43, which addresses statements 
made in the USDOC's  final issues and decision memorandum as it relates to the Panel's  finding on 
de jure specificity. The European U nion's  request relates to the following language from Aceitunas 
Guadalquivir's  preliminary determination calculation memorandum:  
[W]e are attributing to Aceitunas Guadalquivir the benefits received by its cross -owned 
companies Coromar … and AGEA.  
… The ben efits that Coromar reported receiving during the POI appear to be related to 
its olive production. That is, it qualified for such subsidies based on the fact that it is an 
olive grower.20 
2.22.   Similar language is contained in the preliminary issues and d ecision memorandum.21 
Paragraph 7.43 focuses on statements directly made in the context of the USDOC's  de jure specificity 
discussion in the final issues and decision memorandum. As the United States has indicated, the 
referenced language relates to the US DOC's  attribution of benefit, in particular of entities that are 
cross-owned with Aceitunas Guadalquivir. The referenced statements, however, are not necessarily 
indicative of the USDOC's  findings regarding de jure specificity. While these statements may reflect 
the USDOC's  view that certain entities were eligible for subsidies based on their status as olive 
growers, the Panel focused on the USDOC's  findings made specifically in the context of de jure 
specificity analysis contained in the pr eliminary and final issues and decision memoranda, and the 
Remand Redetermination.  
2.9  Paragraph 7.49  
2.23.   The European Union requests the Panel to delete a reference to the SPS programme from the 
first sentence of paragraph 7.49, contending that paragr aph 7.49 only discusses subsidies provided 
during the period of operation of the BPS programme.22 
2.24.   The United States shares the European Union's  view that the Panel's  discussion in 
paragraph  7.49 should be clarified, but believes clarity would better  be achieved by adding another 
reference to the SPS programme in the explanation of "the period of operation". This would clarify 
that the Panel's  analysis contained in this paragraph applies to the period of operation of both the 
SPS and BPS programmes an d would avoid altering the substance of the Panel's finding.23 
2.25.   We have decided to modify the first sentence of paragraph 7.49 in the manner suggested by 
the United States. We consider this change is appropriate in view of the subsequent quote from t he 
verification report of the European Commission explaining that "[a] farmer's  current production or 
lack of production was not a factor in the process or evaluation of a farmer's  application for an 
income grant under SPS".24 
 
18 European Union's  request for interim review, para.  8. 
19 United States'  comments on the European Union's  request for interim review, para.  16 (referring to 
United States'  opening statement at the second meeting of the Panel, para . 13). 
20 Aceitunas Guadalquivir preliminary determination, (Exhibit EU -36), p.  2. 
21 PIDM, (Exhibit EU -1), p.  9. 
22 European Union's  request for interim review, paras.  9-10. 
23 United States'  comments on the European Union's  request for interim review, para.  17. 
24 Paragraph 7.49 of the Report (quoting USDOC verification report:  European Commission, 
(Exhibit  EU-22), pp.  2-3). WT/DS577/R/Add.1  
 
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  2.10  Paragraphs 7.59 -7.76, 7 .107-7.116, and 7.127  
2.26.   The European Union requests the Panel to make several additions and a deletion in 
paragraphs  7.59-7.76 to reflect that, apart from the three considerations discussed by the Panel in 
its assessment in these paragraphs, the Panel 's analysis also applies with respect to a fourth 
situation, in which farmers started growing olives during the period of operation of the SPS or BPS 
programmes by switching their production from different crops. The European Union argues that the 
proposed  changes are necessary for the sake of completeness and to assist the parties to resolve 
this dispute. The European Union submits that similar changes should be made in 
paragraphs  7.107 -7.116 and 7.127, and further requests the corresponding conclusions be  modified 
in section  8 of the Report.25 
2.27.   The United States contends that it "takes no position" on the European Union's  request to 
include references to the argument that the European Union claims to have made concerning the 
possibility of a farmer t o switch to production of olives during the operation of the SPS or BPS 
programmes.26 The United States contends, however, that the European Union's  requested additions 
are not supported by the language used in its submissions and further argues that the P anel should 
reject the proposed changes in paragraphs 7.71 -7.75, 7.107 -7.116, and 7.127 of the Report, as 
those latter modifications add no value and are duplicative.27 
2.28.   We have decided to reject the European Union's  request because, although the 
European  Union submits that it discussed in a number of its submissions the situation of farmers 
that started growing olives during the period of operation of the SPS or BPS programmes by 
switching their production from different crops28, we fail to find any support that this potential fourth 
situation was specifically raised or discussed in the European Union's  submissions.  
2.29.   The European Union points the Panel to several sections of its first written submission. 
Paragraphs 70 -75 of the European Union's  first written submission describe eligibility conditions for 
the SPS programme, and paragraphs 111 -115 similarly discuss eligibility conditions for the 
BPS programme. However, these paragraphs discuss in general terms that production of any 
particular crop  was not an eligibility condition to receive assistance under the SPS or BPS 
programmes and do not contain any explanations or description pointing to the fourth consideration 
that the European Union has asked to include in the Report. Paragraphs 244 and 2 45 of the 
European  Union's  first written submission describe, inter alia, a situation in which a farmer could 
have increased, decreased, or ceased olive production, or replaced it partly or completely with other 
crop or farming activities, but do not discu ss a situation in which a farmer switched to producing 
olives after a different crop during the operation of the SPS or BPS programmes.  
2.30.   Paragraph 326 of the European Union's  first written submission also discusses in general 
terms the possibility th at current olive growers may not have been growing olives during the 
operation of the COMOF programme. However, this paragraph is most logically understood in the 
context of the European Union's arguments concerning olive growers who received entitlements via 
transfer or from the national reserve.  
2.31.   The European Union also points to its opening statement from the first substantive meeting. 
Paragraph 28 of the European Union's  opening statement at the first meeting contains a "summary" 
of the European U nion's  position, and like its first written submission, discusses in general terms the 
possibility that current olive growers may not have been growing olives during the operation of the 
COMOF programme. Paragraph 37 of the European Union's  opening statement in turn discusses 
entitlements that could have been bought, rented, or inherited, without discussing the possibility for 
a farmer switching their production from different crops  to growing olives during the period of 
operation of the SPS or BPS programmes . 
2.32.   Finally, in its 12  November  2020 responses, the European Union responds to a hypothetical 
example involving a farmer who started growing olives in 2016 and received payment entitlements 
 
25 European Union's  request for interim review, para.  11. 
26 United States'  comments on the European Union's  request for interim review, pa ra. 18. 
27 United States'  comments on the European Union's  request for interim review, paras.  18-19. 
28 In particular, the European Union refers to its first written submission, paras.  70-75, 111 -115, 
244-245, and 326; opening statement at the first meeting of the Panel, paras.  28 and 37; and 
12 November  2020 response to Panel question No.  8, paras.  42-44. WT/DS577/R/Add.1  
 
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  by transfer  from a different farmer who did not receive any ass istance under the COMOF programme 
in the past.29 This relates to the situation of a farmer obtaining entitlements by transfer, not to the 
fourth circumstance that the European Union now requests us to add.  
2.33.   Absent a clear discussion of the fourth sit uation the European Union seeks to include, we have 
therefore decided to reject the European Union's  request to make the requested modifications.  
2.11  Paragraph 7.90  
2.34.   The United States requests the Panel to modify the first sentence of paragraph 7.9 0 to indicate 
that the errors concerning the USDOC's  factual assessment were "alleged by the European Union". 
According to the United States, this change clarifies that it does not concede that the 
USDOC's  factual assessment of the regional rate under the BPS programme contained the errors 
alleged by the European Union.30 The European Union did not comment on this request.  
2.35.   We have revised the first sentence of paragraph 7.90 by adding "alleged" before "errors".  
2.12  Paragraph 7.104  
2.36.   The Europe an Union requests the Panel to add references to relevant paragraphs of the Report 
to the first sentence of paragraph 7.104 to improve readability.31 The United States did not comment 
on this request.  
2.37.   We have added a reference to paragraph 7.58 in t he first sentence of paragraph 7.104.  
2.13   Paragraph 7.124  
2.38.   The European Union requests the Panel to delete paragraph 7.124 in its entirety, contending 
that this paragraph improperly comments on the compliance of the USDOC's  determinations with 
US law. The European Union contends that the Panel should not comment on the compliance of the 
USDOC's  determinations with US law, even as obiter  dictum .32 
2.39.   The United States contends that the Panel should reject the European Union's  request as the 
Panel makes clear in this paragraph that it was describing the USDOC's  own evaluation of the 
COMOF  programme under US law, without pronouncing on the USDOC's  compliance with US law.33 
2.40.   We reject the European Union's  request to delete this paragraph. Instead, we have revised 
the language in paragraphs 7.124, 7.127(e)(iii) and 8.1(a)(vii)(3) to clarify the Panel's  observation 
that the USDOC considered that it had made sufficient factual findings with respect to the COMOF 
programme for purposes of its do mestic law. However, this does not amount to a finding by the 
Panel concerning the USDOC's  compliance with its domestic law.  
2.14  Paragraphs 7.128 -7.130 and footnote 270 (footnote 269 of the Interim Report)  
2.41.   The European Union requests the Panel to reconsider its decision set out in 
paragraphs  7.128 -7.130 not to address the remaining arguments concerning the 
European  Union's  claims under Articles  2.1, 2.1(a), and 2.4 of the SCM Agreement. The 
European  Union does not propose specific changes to paragr aphs 7.128 -7.130, but submits that 
addressing its remaining arguments under Articles  2.1, 2.1(a), and 2.4 will provide the parties with 
the precise indications as to how the Panel's findings could be implemented. The European Union 
also asks the Panel to r eassess whether footnote 270 (footnote 269 of the Interim Report) should 
cross-refer to footnotes 262 and 263 (footnotes 261 and 262 of the Interim Report).34 
 
29 European Union's  12 November  2020 response to Panel question No.  8, paras.  42-44. 
30 United States'  request for interim review, para.  8. 
31 European Union's  request for interim review, para.  12. 
32 European Union's  request for interim review, para.  13. 
33 United States'  comments on the European Union's  request for interim review, para.  20. 
34 European Union's  request  for interim review, para.  14. WT/DS577/R/Add.1  
 
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  2.42.   The United States contends that the Panel's  exercise of judicial economy was appropriate, 
and that additional findings are not necessary for achieving a positive solution to the dispute.35 In 
this respect, the United States submits that the Panel's  exercise of judicial economy is both 
permitted under the DSU and is consistent with the panel's  terms of reference. The United States 
further submits that additional findings are not required to assist the DSB in making its 
recommendations.36 
2.43.   We see no basis to grant the European Union's  request. In this respect, we have made 
extensive findings  concerning the inconsistency of the USDOC's  determination, which we consider 
have achieved a positive resolution to the matter. We also agree with the observations made in prior 
panel and Appellate Body reports that a panel may exercise its discretion in addressing only those 
arguments it deems necessary to resolve a particular claim. As long as it is clear in a panel report 
that a panel has reasonably considered a claim, the fact that a particular argument relating to that 
claim was not specifically addre ssed in the "findings" section of a panel report will not, in and of 
itself, lead to the conclusion that that panel has failed to make the "objective assessment of the 
matter before it" as required by Article  11 of the DSU.37 
2.44.   We also note that footn ote 270 (footnote 269 of the Interim Report) does not refer to 
footnotes 262 and 263 (footnotes 261 and 262 of the Interim Report). In case the 
European  Union's  comment concerned footnote 267 (footnote 266 of the Interim Report), the 
references to footnote s 262 and 263 (261 and 262 of the Interim Report) therein are correct.  
2.15  Paragraph 7.135  
2.45.   The European Union requests the Panel to modify paragraph 7.135 and make findings 
concerning the European Union's  claim that the USDOC's  "non-specificity" analysis is inconsistent 
with Articles  2.1, 2.1(b), and 2.4 of the SCM Agreement. The European Union further requests the 
Panel to make corresponding adjustments to the conclusions and recommendations contained in 
section 8 of the Report.38 The European Union submits that, considering that the 
USDOC's  "non-specificity" analysis and findings are intrinsically based on the same alleged facts the 
USDOC relied upon to support its finding of de jure specificity, it necessarily follows that the 
USDOC's  "non-specificity" analysis is inconsistent with Article  2.1(b) of the SCM Agreement.39 The 
European Union further maintains that addressing its Article  2.1(b) claim would clarify that the 
USDOC's  relian ce on those facts was both insufficient to establish de jure specificity under 
Article  2.1(a) of the SCM Agreement, and also does not conform to the United  States' obligations to 
conduct a proper "non -specificity" analysis under Article  2.1(b) of the SCM A greement.40 
2.46.   The United States contends that, for similar reasons to those summarized in paragraph  2.42 
above, the Panel's  exercise of judicial economy was appropriate, and additional findings are not 
required to achieve a positive solution to the dispute.41 The United States also submits that the 
European Union's  proposed modifications to paragraph 7.135 are erroneous factually and legally, 
and s hould be rejected.42 In any event, the United States contends that the 
European  Union's  assertion that the USDOC's  "non-specificity" analysis is WTO -inconsistent is 
irrelevant to the question of whether the Panel has properly exercised judicial economy, as  a 
panel's  decision to exercise judicial economy does not turn on whether a particular claim would have 
led to a further finding of WTO -inconsistency.43 
 
35 United States'  comments on the European Union's  request for interim review, para.  4. 
36 United States'  comments on the European Union's  request for interim review, paras.  5-7 (referring to 
Articles  3.4, 3.7, 7.1, and 11 of the DSU).  
37 See e.g. Panel Reports, Australia  – Anti-Dumping  Measures  on Paper , para.  7.134; Korea  – Stainless  
Steel Bars, para.  7.183; Appellate Body Reports, EC – Poultry , para.  135; EC – Fasteners  (China) , para.  511; 
and US – COOL , para.  414. 
38 European Union's  request for interim review, paras.  15-16 and 19.  
39 European Union's  request for interim review, para. 17. 
40 European Union's  request for interim review, para.  18. 
41 United States'  comments  on the European Union's  request for interim review, paras.  7-8 (referring to 
Panel Report, Indonesia  – Chicken , para.  7.159).  
42 United States'  comments on the Euro pean Union's  request for interim review, para.  11. 
43 United States'  comments on the European Union's  request for interim review, para.  10. WT/DS577/R/Add.1  
 
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  2.47.   We see no basis to make the requested changes.  Similar to our observation that a  panel need 
not address every argument raised by a party in addressing a particular claim44, we agree with the 
observations made in prior panel and Appellate Body reports that a panel may refrain from making 
multiple findings that the same measure is inconsistent with var ious provisions when a single, or a 
certain number of findings of inconsistency, would suffice to resolve the dispute.45 In this dispute, 
we consider the findings we have made adequately address the European Union's  concerns and do 
not lead to a partial resolution of the matter, and therefore further findings are not necessary to 
resolve the matter at issue.46 
2.16  Paragra ph 7.138  
2.48.   The United States requests several changes to paragraph 7.138 to reflect more closely the 
text of Section 771B.47 The European Union did not comment.  
2.49.   We have made the requested changes to reflect the text of Section 771B without alte ring the 
substance of this introductory paragraph.  
2.17  Paragraph 7.142  
2.50.   The United States requests revising the last sentence of paragraph 7.142 to indicate that a 
comparison of prices for an input product provides the "only" appropriate method for  conducting a 
pass-through analysis, rather than indicate that such an examination is "an" appropriate method for 
the purpose of assessing pass -through. The United States contends that statements in the 
European  Union's  submissions support making this chan ge.48 
2.51.   The European Union asks the Panel to reject the requested change, contending that it has 
argued numerous times that its claims do not depend on whether price comparisons are the only 
approach to assess pass -through.49 However, if the Panel wer e to make the proposed change, the 
European Union asks the Panel to add text and an accompanying footnote to paragraph 7.142 
indicating that the European Union does not consider that this question of whether a price 
comparison is required is determinative for its claim.50 
2.52.   We have made the requested change to enhance consistency in reflecting the 
European  Union's  argumentation, including the reference at paragraph 7.142 of the  Report to the 
European Union's  characterization of input price comparisons as the only meaningful way to assess 
pass-through. This change is also consistent with the European Union's  observation at paragraph 75 
of its second written submission that a pass -through analysis in the case of input subsidies can only 
consist of some ki nd of a price comparison.51 
2.53.   We have also made  the additional change requested by the European Union to reflect the 
European Union's  position that the question of whether a price comparison is required is not 
determinative for its claim.52 
 
44 See para.  2.43 above.  
45 See e.g. Appellate Body Reports, US – Tuna II (Mexico) , para.  403; Canada  – Wheat  Exports  and 
Grain  Imports , para.  133; Panel Reports, Morocco – Definitive  AD Measures  on Exercise  Books  (Tunisia) , 
para. 7.261; Korea  – Stainless  Steel Bars, para.  7.226; and Indonesia  – Chicken , para.  7.159.  
46 See, e.g. Appellate Body Reports, US – Wool Shirts  and Blouses , DSR 1997:I, p. 340; EC – Poultry , 
para. 135; US – Tuna II (Mexico) , paras.  403-404; and US – Upland  Cotton , para.  732; and Panel  Reports,  
US – Pipes and Tubes  (Turkey) , para.  7.343; Indonesia  – Chicken , para.  7.159.  
47 United States'  request for interim review, para.  9. 
48 United States'  request for interim review, para.  10 (referring to European Union's  first written 
submission, para.  407; and 10  June 2020 response to Panel question No.  14, paras.  90 and 92).  
49 European Union's  comments on the United States'  request for interim review, para.  2. 
50 European Union's  comments on the United States'  request for inter im review, para.  3 (referring to 
European Union's  second written submission, paras.  57-58, 74 -75, and 77; opening statement at the first 
meeting of the Panel, paras.  78-83; and 10  June 2020 response to Panel question No.  13, para.  84). 
51 European Union's  second written submission, para.  75 ("the EU also explained that a pass -through 
analysis in the case of input subsidies can only consist of some kind of a price comparison. The EU firmly 
maintains its position, even if it may not be determinative for this d ispute" (fn omitted)).  
52 European Union's  second written submission, para.  75. WT/DS577/R/Add.1  
 
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  2.18  Paragraph 7.155  
2.54.   The European Union requests adding language and an accompanying footnote after the 
second full sentence of paragraph 7.155 to specify that the Panel is not required to decide on the 
precise method to determine pass -through to resolve the dispute.53 
2.55.   The United States contends that this change is not necessary as the first two sentences in 
paragraph 7.155 outline the disagreement between the parties and the Panel's  interpretation of the 
relevant legal standard.54 
2.56.   We have decided to reject this change, as paragraph 7.155 already indicates that the Panel 
is not required to decide whether price comparisons provide the only meaningful way to assess 
pass-through in order to resolve the European Union's  claims. We  have further  added text to 
paragraph 7.142 to reflect the European Union's  position that finding price comparison to be the 
only appropriate method of assessing pass -through is not necessary to determine its claim.  
2.19  Paragraph 7.158  
2.57.   The United States requests modifying paragraph 7.158 to reflect more closely the text of 
Section 771B.55 The European Union did not comment.  
2.58.   We have made the requested changes to reflect the text of Section 771B without altering the 
substance of the paragraph.  
2.20  Paragraph 7.196  
2.59.   The United States requests the Panel amend the third sentence of paragraph 7.196 by adding 
to the end of the sentence "so that the Panel, the EU, and Third Parties, if they so request, are able 
to verify the factual basis upon  which the U.S. determined injury and causation in the underlying 
administrative proceedings".56 The United States argues that the amendment would more accurately 
reflect the European Union's  submissions.57 
2.60.   The European Union did not comment on the United States'  request.  
2.61.   We have decided to grant the United States request to more accurately reflect the 
European  Union's  submissions. We have also decided to implement an additional change to more 
specifically reflect the language of the European Union's  submissions (relevantly, paragraph 424 of 
the European Union's  first written submission), and to modify certain terms to ensure consistency 
in the Report, as follows:  
In its first written submission, the European Union indicated that it expected th e 
United  States to provide it and the Panel with an unredacted version of the 
USITC's  determination so that the Panel, the European Union, and third parties, if they 
so requested, would be able to verify the factual basis upon which the United States 
deter mined, in particular, injury and causation in the underlying administrative 
proceedings . 
2.21  Paragraph 7.203  
2.62.   The European Union requests the Panel amend the first sentence of paragraph 7.203 to 
distinguish between the arguments made by the United States in its first and second written 
submissions. In particular, the European Union requests the Panel note that the United States argued 
"in its first written submission that the USITC had carried out a 'segmented analysis' that was in line 
 
53 European Union's  request for interim review, para.  20 (referring to European Union's  second written 
submission, paras.  74-75; 12  November  2020 response to Panel question No.  16, paras.  134-135; and opening 
statement at the second meeting of the Panel, paras.  28-29). 
54 United States'  comments on the European Union's request for interim review, para.  21. 
55 United States'  request for interim review, para.  11. 
56 United States'  request for interim review, para.  12. 
57 United States'  request for interim review, para.  12 (referring to European Union's  first written 
submission, para.  424).  WT/DS577/R/Add.1  
 
- 33 - 
  with the leg al requirements established by the Appellate Body in US – Hot-Rolled  Steel" and that 
"[a]ccording to the United States, the USITC was entitled to give 'particular focus to the retail 
segment'".58 The European Union argues that this change is required to reflect the "180 -degree 
turnaround that the United States undertook between its first and second written submission with 
respect to the question whether the USITC undertook a segmented analysis und er Articles  3 and 
15".59 The European Union maintains that the United States initially argued that "the USITC was 
entitled under that case law to carry out a segmented injury and causation analysis and could in 
that context pay particular focus on the reta il 'segment'", in contrast to later arguing that the USITC 
did not conduct a segmented analysis.60 
2.63.   The United States objects to the European Union's  request. The United States argues that the 
European Union mischaracterizes its arguments, and also i mproperly refers to prior Appellate Body 
decisions as "case law".61 
2.64.   We have decided to reject the European Union's  request. We do not agree that there was a 
"180-degree turnaround" on the issue of whether the USITC conducted a segmented analysis. Th e 
United States asserted in its first written submission that the USITC was entitled to give "particular 
focus to the retail segment".62 This assertion is consistent with the United States'  second written 
submission, which stated that "there is no factual basis for the [European Union]'s  attempt to recast 
[the USITC opinion] as one that alternated between holistic and segmented analyses".63 We thus do 
not consider there to be persuasive reasons to accept the European Union's  request.  
2.22  Paragraph 7.206  
2.65.   The European Union requests the Panel amend the first sentence of paragraph 7.206 to 
distinguish between the arguments made by the United States in its first and second written 
submissions.64 In particular, the European Union requests the Panel observe that the United States 
"argued in its first written submission that the USITC carried out a 'segmented analysis' focusing on 
the retai l sector in line with WTO requirements". The European Union requests paragraph 7.206 be 
amended for the same reasons as paragraph 7.203.65 
2.66.   The United States did not comment on the European Union's  request.  
2.67.   We have decided to reject the Europe an Union's  request for the same reason that we rejected 
the European Union's  request regarding paragraph 7.203.  
2.23  Paragraph 7.209  
2.68.   The United States requests the Panel amend the third sentence of paragraph 7.209 by 
replacing "definite" with "affi rmative, objective".66 The United States argues that "definite" should 
be excluded from the definition of "positive evidence" because the "Panel's  characterization of 
'positive evidence' as 'definite' is in tension with the notion that reasonable inference s can be 
considered positive evidence".67 
2.69.   The European Union did not comment on the United States'  request.  
2.70.   We have decided to accept the United States'  request and agree with the 
United  States'  observation.  
 
58 European Union's  request for interim review, paras.  21-22. 
59 European Union's  request for interim review, para.  21. 
60 European Union's  request for interim review, para.  21. 
61 United States'  comments on the European Union's  request for interim review, paras.  22-28. 
62 United States'  first written submission, para.  175. 
63 United States'  second written submission, para.  46. 
64 European Union's  request for interim review, paras.  23-24. 
65 European Union's  request for interim review, para.  23. 
66 United States'  request for interim review, para.  13. 
67 United States'  request for i nterim review, para.  13. WT/DS577/R/Add.1  
 
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  2.24  Paragraph 7.211  
2.71.   The European Union requests the Panel amend the fourth and final sentences of 
paragraph  7.211.68 In relation to the fourth sentence of paragraph 7.211, the European Union 
requests the Panel to "replace the term 'consider' with the term 'examine' so that the term 'examine' 
is consistently used in this sentence for all trends".69 The European Union further requests that the 
Panel delete the phrase "gathered data on" as the European Union argues that it did not contend 
"that the USITC was not entitled t o 'gather data' per customer group".70 The European Union also 
requests that the words "under Articles  3 and 15" be included, to clarify that the European Union 
"takes legal issue with the USITC's  'segmentation' by customer group in the context of 
Article  [sic] 3 and 15".71 
2.72.   In relation to the final sentence of paragraph 7.211, the European Union requests the Panel 
observe that " the European Union does not contest that there was positive evidence that the different 
customer groups existed". The Europe an Union also requests that the Panel specify that the 
European Union's  arguments relate to the USITC's examination of customer groups "for the purpose 
of its injury and causation analysis under Article [ sic] 3 and 15", as well as explain that the 
European  Union alleges such examination was not based on an objective examination of positive 
evidence "because the USITC had defined a single like product of 'all ripe olives' purchased 
interchangeably by all customer groups". The European Union argues that the p roposed changes to 
the final sentence of paragraph 7.211 would "more accurately reflect the 
[European  Union]'s  position".72 
2.73.   The United States objects to the European Union's  request as duplicative and as an inaccurate 
characterization of the Europea n Union's  argument.73 In particular, the United States argues the 
proposed change to the final sentence of paragraph 7.211 is an attempt to rewrite the 
Panel's  analysis.74 The United States maintains that the European Union's  submission "does not 
acknowled ge that there was 'positive evidence' of anything contrary to the language the 
[European  Union] suggests adding to paragraph 7.211".75 
2.74.   We have decided to partially accept the European Union's  request to amend the fourth 
sentence of paragraph 7.211, as follows:  
It is our understanding that the European  Union describes the Injury Determination as 
involving a "segmented analysis" because the USITC did not just examine  consider 
trends at the level of the market as a whole, but also gathered data on, and  examined 
trends in relation to certain customer groups.  
We consider that this amendment will enhance the clarity of the analysis. We have, however, decided 
to reject the European Union's  other requests. We consider it is unnecessary to add "under 
Article  [sic] 3 and 15" to the fourth sentence of paragraph 7.211. In our view, the fact that the 
USITC's  examination is conducted under Articles  3 and 15 is already implied by the context. 
Additionally, we do not agree with the European Union's  amendment to the f inal sentence of 
paragraph 7.211 as it is not consistent with our understanding of the European Union's  first written 
submission. While the European Union acknowledged that the customer groups existed, the 
European Union argued that these groups were "mean ingless", and that an "analysis based on 
customer groups in these circumstances makes no sense and is arbitrary".76 As the United States 
observed, the European Union's  submission thus "does not acknowledge that there was 'positive 
evidence' of anything".77 
 
68 European Union's  request for interim review, paras.  25-28. 
69 European Union's  request for interim review, para.  25. 
70 European Union's  request for interim review, para.  25. 
71 European Union's  request for interim review, para. 25. 
72 European Union's  request for interim review, paras.  26-27. 
73 United States'  comments on the European Union's  request for interim review, paras.  29-33. 
74 United States'  comments on the European Union's  request for interim review, para.  32. 
75 United States'  comments on the European Union's  request for interim review, para.  32 (referring to of  
European Union's  first written submission, para.  467).  
76 European Union's  first written submission, para . 467. 
77 United States'  comments on the European Unio n's request for interim review, para.  32. WT/DS577/R/Add.1  
 
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  2.25  Paragraph 7.213  
2.75.   The European Union requests the Panel amend the first sentence of paragraph 7.213 by 
deleting the specific references to the sections of the Injury Determination titled "Demand 
Conditions", "Supply Conditions", and "Substituta bility and Other Conditions". The European Union 
also requests that the Panel specify that the USITC's  examination of customer groups was "for its 
analysis under Article [ sic] 3.2 and 15.2".78 The European Union also requests certain amendments 
to footnote  424 (footnote 422 of the Interim Report).  
2.76.   The European Union requests that the phrase "for its analysis under Article [ sic] 3.2 and 15.2" 
be added "since this is the core [European Union] argument concerning the (non -)relevance of the 
customer grou ps".79 The European Union also argues that the word "determination" should be used 
in place of the specific sections of the Injury Determination referred to in paragraph 7.213 because 
the European Union's  "argument was that the relevance of the customer gr oups for the injury and 
causation analysis was not explained anywhere  in the determinations".80 
2.77.   The United States objects to the European Union's  request. First, the United States asserts 
that, instead of the European Union's  proposed change, the first sentence of paragraph 7.213 should 
begin with "[i]n its arguments under Articles  3.2 and 15.2".81 Second, the United States opposes 
the deletion of the references to specific sections of the Injury Determination. The United States 
argues that the rel evant paragraphs of the European Union's  first written submission "did in fact 
make these arguments about the specific sections of the Views set out by the Panel in this 
paragraph".82 
2.78.   We have decided to reject the European Union's  request. First, th e addition of "for its analysis 
under Articles  3.2 and 15.2" is unnecessary as it is already implied in the context. Second, we 
consider the references to the relevant sections of the Injury Determination to be appropriate as 
these reflect the specific arg uments made by the European Union.83 
2.26  Paragraph 7.214  
2.79.   The European Union requests the Panel amend the second and eighth sentences of 
paragraph  7.214.84 The European Union requests that "examination of" should be replaced by 
"USITC's  analysis ba sed on  different " in both the second and eighth sentences of paragraph 7.214. 
The European Union argues this change should be made to reflect the fact that the European Union 
"did not take issue with the examination of customer groups per se or their prese ntation in the 
determinations", but rather "with the fact that the USITC based its injury and causation analysis on 
these customer groups".85 
2.80.   The European Union also requests that the eighth sentence specify that the retail sector was 
the "only sect or where Spanish imports increased whereas Spanish imports decreased at industry 
level". The European Union argues that "[w]ithout this addition, it would remain unclear why the 
[European Union] considers that a volume effect was artificially  created which  is however a core 
argument by the [European Union] in this dispute".86 
2.81.   The United States did not object to the proposed replacement of "examination" with 
"analysis", but rejects the use of the modifier "different" as not accurately reflecting the 
European  Union's  submissions.87 The United States also argues that the proposed amendment to 
the eighth sentence of paragraph 7.214 should reflect the language of paragraph 469 of the 
European Union's  first written submission, where the European Union state d that the only purpose 
 
78 European Union's  request for interim review, para.  29. 
79 European Union's  request for interim review, para.  29. 
80 European Union's  request for interim review, para.  29. (emphasis original)  
81 United States'  comments on the European Union's  request for interim review, para.  34. 
82 United States'  comments on the European Union's request for interim review, para.  35 (referring to 
the European Union's  first written submission, paras.  483-486).  
83 European Union's  first written submission, paras.  483-486. 
84 European Union's  request for interim review, para.  30. 
85 European Union's  request for interim review, para.  30. 
86 European Union's  request for interim review, para.  30. (emphasis original)  
87 United  States'  comments on the European Union's  request for interim review, para.  36. WT/DS577/R/Add.1  
 
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  of segmentation was "to artificially create a volume effect that could not be established at the level 
of the industry as a whole because Spanish imports had decreased at the industry level".88 
2.82.   We have decided to reject the E uropean Union's  request. First, we do not consider there to 
be persuasive reasons to replace "examination of" with "USITC's  analysis based on different". 
Second, we consider the proposed addition  to the end of the eighth sentence of paragraph 7.214 is 
unnecessary as the European Union's  argument concerning the significance of the change in the 
volume of ripe olives is addressed in section 7.4.4 of the Report.  
2.27  Paragraph 7.218  
2.83.   The European Union requests the Panel amend the final sentence of paragraph 7.218.89 The 
European Union requests that "a particular" be replaced with "the", and that the sentence conclude 
with "in which the domestic industry performs poorly".  
2.84.   The Europe an Union argues that the proposed modifications are "important to reflect the 
[European Union's]  consistent position throughout these proceedings that the United States 
considered an increase of volume in the retail sector, the only poorly performing part of the industry 
where Spanish imports increased, because the USITC did not – and could not  – consider an increase 
at the industry level (where Spanish imports decreased)".90 
2.85.   The United States objects to the European Union's  request. The United State s asserts the 
language in the Report accurately reflects the European Union's  submissions, and that the 
European  Union's  proposed changes are not reflected in the relevant paragraph 497 of the 
European  Union's  first written submission.91 
2.86.   We have dec ided to reject the European Union's  request. First, t he European Union's  proposed 
replacement of "a particular" with "the" within the quotation marks would be to modify the original 
language of paragraph 497 of the European Union's  first written submission . Second, the additional 
phrase at the end of the sentence "in which the domestic industry performs poorly" is not relevant 
to the analysis in paragraph 7.218.  
2.28  Paragraph 7.219  
2.87.   The European Union requests the Panel amend the first sentence of p aragraph 7.219. The 
European Union observes that " US –"  should be added to the reference to " Hot-Rolled  Steel".92 The 
United States did not comment on the European Union's  request.  
2.88.   We have amended the typographical error.  
2.29  Paragraph 7.223  
2.89.   The European Union requests the Panel amend the fourth sentence of paragraph 7.223 by 
specifying that the analysis of market segments is "the USITC's"  and deleting the general reference 
to a risk of distortion "to an investigat ing authority's  injury investigation".93 The European Union 
argues that the proposed amendments will clarify that the European Union "takes issue with the risk 
of distortion in the specific circumstances of this case".94 
2.90.   The United States objects to  the European Union's  request, arguing that through this request 
the European Union seeks to modify its "consistent position that an investigating authority's  analysis 
of market segments necessarily poses a risk of distortion".95 
 
88 United States'  comments on the European Union's  request for interim review, para.  37 (quoting 
European  Union's  first written submission, para.  469).  
89 European Union's  reques t for interim review, para.  31. 
90 European Union's  request for interim review, para.  31. 
91 United States'  comments on the European Union's  request  for interim review, para.  38. 
92 European Union's  request for interim review, para.  32. 
93 European Union's  request for interim review, para.  33. 
94 European Union's  request for interim review, para.  33. 
95 United States'  comments on the European Union's  request for interim review, para.  39. WT/DS577/R/Add.1  
 
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  2.91.   We have decided to accept the European Union's  request to increase the precision of the 
fourth sentence of paragraph 7.223.  
2.30  Paragraph 7.227  
2.92.   The European Union requests the Panel amend the second sentence of paragraph 7.227, as 
well as to include an additional se ntence at the conclusion of the paragraph.96 In relation to the 
second sentence of paragraph 7.227, the European Union requests the Panel replace the existing 
quotation from paragraph 523 of the European Union's  first written submission with a quotation fr om 
paragraph 525 of the European Union's  first written submission that "the investigating authority 
must consider some sort of increase in [dumped or] subsidized imports". The European Union 
contends that the Report takes the relevant quotes out of context  and misrepresents the position of 
the European Union.97 
2.93.   The European Union also requests that the Report include reference to two further arguments 
contained in its submissions at the conclusion of paragraph 7.227.98 First, the European Union 
reque sts the inclusion of its argument at paragraph 151 of its first written submission that "the term 
'increase' in Article  15.2 and Article  3.2 would be meaningless if the authority could consider a mere 
presence or decrease of [dumped or] subsidized imports" . Second, the European Union requests 
reference to its observation at paragraphs 464 and 525 of its first written submission that 
"US legislation explicitly permits the consideration by the authority of a 'presence' of subject imports 
which is not the case  under Article [ sic] 15.2 and 3.2". The European Union also proposes deleting 
footnote 463 (footnote 461 of the Interim Report) and requests certain changes to footnote 464 
(footnote 462 of the Interim  Report).  
2.94.   The United States did not comment on t he European Union's  request regarding the second 
sentence of paragraph 7.227. The United States opposes the addition of two sentences at the end 
of paragraph 7.227. First, the United States asserts that the Panel already addressed the proper 
interpretation  of "increase".99 Second, the United States argues that reference to the domestic 
legislation of the United States is irrelevant.100 
2.95.   We have decided to reject the European Union's  request. In relation to the second sentence 
of paragraph 7.227, the Report directly quotes the European Union's  own submissions. We do not 
consider these quotations to be taken out of context. Furthermore, the European Union's  clarification 
of its argument as being that "the investigating authority must consider some sort of increase" is 
already addressed at paragraph 7.231 of the Report. We also do not consider it necessary to include 
the additional sentences proposed at the end of paragraph 7.227. First, the 
European  Union's  argument that the word "increase" would be mean ingless if an authority could 
consider a mere presence or decrease is already addressed in substance by the Panel's interpretation 
of Article  3.2 of the Anti -Dumping Agreement and Article  15.2 of the SCM Agreement in 
paragraph  7.229. Second, we consider the discussion of the domestic legislation of the United States 
not to be relevant to the Panel's consideration of what is required for the consideration of a significant 
increase in volume under Articles  3.2 and 15.2.  
2.31  Paragraph 7.229  
2.96.   The European Union requests the Panel amend the first and the penultimate sentences of 
paragraph 7.229 by replacing the existing quotation from the European Union's  submission with a 
quotation from paragraph 525 of the European Union's  first written submi ssion that the investigating 
authority "must consider some sort of increase  in [dumped or] subsidized imports".101 The 
European  Union also proposes certain amendments to footnotes 467 and 470 (footnotes 465 and 
468 of the Interim Report). The European Union  requests the proposed modifications to 
paragraph  7.229 for the same reason as the proposed changes to paragraph 7.227.102 
 
96 European Union's  request for interim review, paras.  34-36. 
97 European Union's  request for interim review, paras.  34-35. 
98 European Union's  request for interim review, para.  35. 
99 United States'  comments on the European Union's request for interim review, para.  41. 
100 United States'  comments on the European Un ion's request for interim review, para.  41. 
101 European Union's  request for interim review, para.  37. (emphasis original)  
102 European Union's  request for interim review, para.  37. WT/DS577/R/Add.1  
 
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  2.97.   The United States objects to the proposed changes. The United States argues that the existing 
language is taken directly from t he European  Union's  submissions, and there is thus no need to 
clarify the European Union's  position.103 
2.98.   We have decided to reject the European Union's  request for the same reasons that we rejected 
the European Union's  request regarding paragraph 7.22 7. 
2.32  Paragraph 7.230  
2.99.   The European Union requests the Panel amend the second sentence of paragraph 7.230 by 
deleting the existing characterization of the findings of the panel in US – DRAMs  and replacing it 
with the "'panel's  finding that' 'the c onsideration by the authority of 'the absolute volume of imports' 
does not form part of 'the three considerations envisaged by Article  15.2 of the SCM Agreement''".104 
The European Union argues that the amendments more accurately reflect the 
European  Union' s submissions.105 
2.100.   The United States did not comment on the European Union's  request.  
2.101.   We have decided to reject the European Union's  request. The existing sentence is based on 
direct quotations from the European Union's  submissions and reflec t the arguments by the 
European  Union being addressed in paragraph 7.230. We thus see no persuasive reason to 
implement the proposed changes.  
2.33  Paragraph 7.231  
2.102.   The European Union requests the Panel amend the third sentence of paragraph 7.231 by 
replacing "there was in fact a decrease" with "the authority only considers a decrease".106 The 
European Union argues the amendment is appropriate to more accurately reflect the 
European  Union's argument.107 The European Union maintains that its pos ition in relation to the first 
sentence of Article  3.2 of the Anti -Dumping Agreement and Article  15.2 of the SCM Agreement is 
"not that there has to be an increase but that the authority must consider (or take into account) an 
increase which it cannot do i f it only considers decreasing imports".108 
2.103.   The United States objects to the European Union's  request. The United States argues that 
the change is inappropriate because that Panel is not merely restating the 
European  Union's  argument, but that it "i s clear in the statement that this is its own view of the 
logical extension of the [European Union]'s  arguments".109 
2.104.   We have decided to reject the European  Union's  request. As observed by the United States, 
the relevant sentence is framed as reflect ing this Panel's  understanding of the logical implications of 
the European Union's  argument that "the USITC failed to consider  a volume increase because it only 
considered a decrease".110 We therefore see no persuasive reason to implement the requested 
change. 
2.34  Paragraphs 7.229 -7.301  
2.105.   The United States requests that, in paragraphs 7.299, 7.230, and 7.231, the 
Panel's  interpretation of Articles  3.2 and 15.2 specifies that compliance with the requirement to 
consider whether there has been a signifi cant increase in volume is unaffected by whether the 
imports in fact "increased, decreased,  or remained stable , or fluctuated ".111 The United States argues 
 
103 United States'  comments on the European Union's  request for interim review, para. 43 (referring to 
the European Union's  first written submissions, para.  524).  
104 European Union's  request for interim review, para.  38 (relevantly referring to Panel Report,  
US – Countervailing  Duty Investigation  on DRAMs , para.  7.234).  
105 European Union's  request for interim review, para.  38. 
106 European Union's  request for interim review, para.  39. 
107 European Union's  request for interim review, para.  39. 
108 European Union's  request for interim review, para.  39. 
109 United States'  comments on the European Union's  request for interim review, para.  44. 
110 European Union's  second written submission, para.  148. (emphasis original)  
111 United States'  request for interim review, paras.  14-16. WT/DS577/R/Add.1  
 
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  that the proposed amendment allows for the possibility that volume fluctuates during the period of 
investigation.112 
2.106.   The European Union did not comment on the United States'  request.  
2.107.   We have decided to reject the United States'  request. The issue of whether volume fluctuated 
was not at issue in these proceedings. Moreover, regardless of whether volume fluctuates over the 
course of the period of investigation, overall volume must increase, decrease, or remain stable. The 
existing language thus does not exclude circumstances where volume has fluctuated but has overall 
increase d, decreased, or remained stable over the period of investigation. We therefore see no 
persuasive reason to implement the requested change.  
2.35  Paragraph 7.232  
2.108.   The United States requests the Panel amend the sixth sentence of paragraph 7.232 by 
adding that the USITC also " found that the volume of subject ripe olives was significant relative to 
domestic production" .113 The United States requests the proposed amendment for completeness.114 
2.109.   The European Union did not comment on the United States'  request.  
2.110.   We have decided to accept the United States'  request as it accurately reflects the findings 
of the USIT C.115 
2.36  Paragraph 7.233  
2.111.   The European Union requests the Panel amend the second sentence of paragraph 7.233 by 
specifying that the European Union argues that the USITC failed to consider the industry as a whole 
and "in a like manner as the retail  customer group, without satisfactory explanation".116 The 
European Union also requests certain amendments to footnote 487 (footnote 485 of the 
Interim  Report). The European Union did not provide an explanation for its requested amendment.  
2.112.   The Unite d States did not comment on the European Union's  request.  
2.113.   We have decided to reject the European Union's  request. The European Union's  second 
written submission asserts that the "USITC's  assessment of the industry as a whole is also not done 
'in like manner'".117 This argument is not elsewhere developed, and its relationship with the relevant 
notion that market segments must be considered in "like manner" drawn from US – Hot-Rolled  Steel 
is not explained.118 There is no requirement that the Report exp licitly refer to every different 
articulation of the European Union's  arguments. We therefore see no persuasive reason to 
implement the requested change.  
2.37  Paragraph 7.236  
2.114.   The United States requests the Panel amend the sixth sentence of paragra ph 7.236 by 
adding that the USITC " found that the volume of subject imports was significant relative to domestic 
production".119 The United States requests the proposed amendment for completeness.120 
2.115.   The European Union did not comment on the United S tates'  request.  
 
112 United States'  request for interim review, para.  14. 
113 United States'  request for interim review, para.  17. 
114 United States'  request for interim review, para.  17. 
115 Injury Determination, (Exhibit  EU-5), pp.  18-19. 
116 European Union's  request for interim review, para.  40. 
117 European Union's  second written submission, para.  137. 
118 Appellate  Body Report, US – Hot-Rolled  Steel, paras.  204, 211, and 214.  
119 United States'  request for interim review, para.  18. 
120 United States'  request for interim review, para.  18. WT/DS577/R/Add.1  
 
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  2.116.   We have decided to accept the United States'  request as it accurately reflects the 
USITC's  findings.121 
2.38  Paragraph 7.237  
2.117.   The European Union requests the Panel amend the third sentence of paragraph 7.237 by 
including the statement : the European Union reasons that "the second paragraph relating to the 
overall industry does not contain a consideration of a volume 'increase' within the meaning of 
Article  15.2".122 The European Union also proposes certain amendmen ts to footnote 503 
(footnote  501 of the Interim  Report). The European Union argues that the proposed amendments 
more accurately describe the European Union's  arguments.123 In particular, the European Union 
maintains that it " is clear from the [European Union]'s  submissions that the [European Union] 
qualified the second paragraph about decreasing Spanish imports as mere factual description but 
not as relevant 'consideration'  under Article  [sic] 3.2 and 15.2 since these provisions require the 
consideration of an 'increase', not a 'decrease'".124 
2.118.   The United States opposes the proposed change as not accurately reflecting language from 
the European Union's submissions.125 
2.119.  We have decided to reject the European Union's  request. The European Union's  proposed 
amendment is drawn from paragraph 525 of the European Union's  first written submission, which is 
not directly connected with the arguments based on paragraph 496 o f the European Union's  first 
written submission being addressed at paragraph 7.237 of the Report. We therefore see no 
persuasive reason to implement the requested change.  
2.39  Paragraph 7.238  
2.120.   The European Union requests the Panel amend the final s entence of paragraph 7.238 by 
specifying that the USITC's  conclusion refers to volume effects "within the meaning of 
Article  [sic] 3.2 and 15.2".126 The European Union also requests  certain changes to footnote 506 
(footnote 504 of the Interim Report Report). The European Union argues the amendment is required 
to clarify the European Union's  position that "consideration of a decrease of imports cannot 
constitute a consideration of vol ume within the meaning of Article [ sic] 3.2 and 15.2".127 
2.121.   The United States did not comment on the European Union's  request.  
2.122.   We have decided to reject the European Union's  request. The context of paragraph 7.238 
already makes clear that the USITC's  conclusions regarding volume effects are under Articles  3.2 
and 15.2. We therefore see no persuasive reason to accept the requested change.  
2.40  Paragraph 7.240  
2.123.   The United States  requests the Panel amend the second sentence of paragraph 7. 240.128 
First, the United States requests the Panel replace "analysis" with "discussion". Second, the 
United  States requests the Panel replace "consider" with "address". The United States requests this 
amendment to " better reflect the fact that the USITC ga ve equal consideration to the trends in each 
sector".129 
2.124.   The European  Union requests the Panel to reject the changes requested by the United States. 
The European Union argues the amendment should be rejected because "the sentence in question 
relates  to the position by the [European Union] and by the Panel that no such equal consideration 
 
121 Injury Determination, (Exhibit  EU-5), p.  18. 
122 European Union's  request for interim review, para.  41. 
123 European Union's  request for interim review, para.  41. 
124 European Union's  request for interim review, para.  41. 
125 United States'  comments on the Europe an Union's  request for interim review, para.  45. 
126 European Union's  request for interim review, para.  42. 
127 European Union's  request for interim review, para.  42. 
128 United States'  request for interim review, para.  19. 
129 United States'  request for interim r eview, para.  19. WT/DS577/R/Add.1  
 
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  was given whereas the proposed change would relate to the [United States]'  (contrary) position 
which is not at issue".130 
2.125.   We have decided to reject the United  States'  request. We do not consider it suitable to 
implement alternative wording indicating that the USITC gave equal consideration to trends in each 
sector in considering volume, as the Report finds that the USITC did not give equal consideration to 
trends in each sector.131 We therefore see no persuasive reason to implement the requested change.  
2.41  Paragraph 7.242  
2.126.   The European Union requests the Panel amend the second last sentence of paragraph 7.242 
by specifying that the European Union's  argument concerns an authority's consideration of 
"increasing subject imports" and "in a situation where the authority considers that subject imports 
decrease at industry level".132 The European Union contends the proposed amendment is required 
to more accurate ly reflect its arguments.133 
2.127.   The United States did not comment on the European Union's  request.  
2.128.   We have decided to reject the European Union's  request. The second last sentence of 
paragraph 7.242 directly reflects the language of paragraph 137 of the 
European  Union's  8 September  2020 response to questions by the Panel. We therefore see no 
persuasive reason to implement the requested change.  
2.42  Paragraph 7.244  
2.129.   The European Union requests the Panel amend the first sentence  of paragraph 7.244 by 
adding, at the end of the Panel's  characterization of the European Union's argument, that the USITC 
failed to consider the distributional and institutional/food processor customer groups to the extent 
required for an objective examin ation based on positive evidence, the words "despite those groups 
accounting for the majority of Spanish imports".134 The European Union also requests the Panel 
include reference to an additional argument of the European Union, being that "[t]he European Union 
also contends that the USITC could not omit these two customer groups from consideration as they 
accounted for t he vast majority (around 80%) of Spanish imports" . 
2.130.   The European Union contends that the proposed amendment would more accurately reflect 
the European Union's  arguments.135 The European Union argues that this is necessary because the 
"fact that aroun d 80% of Spanish imports occurred in the distribution and institutional customer 
groups is of key relevance in this dispute since an injury and causation analysis is about the effect 
and impact of all subject imports on the domestic industry and injury at industry level cannot be 
caused on the basis of only 20% of Spanish imports even if these 20% occur in the 'largest sector' 
for the domestic industry".136 
2.131.   The United States did not object to the European Union's  request but requests an alternative 
amendment to the proposed additional sentence.137 
2.132.   We have decided to accept a modified version of the European Union's  request to clarify that 
sales to the distributional and institutional customer groups represented a majority of Spanish 
imports. We thus amend the first sentence of paragraph 7.244 as follows:  
The European  Union maintains that the USITC failed to consider the distributional and 
institutional/food processor customer groups to the extent required to constitute an 
 
130 European Union's  comments on the United States'  request for interim review, para.  4. (emphasis 
original)  
131 See paragraph  7.240 of the Report.  
132 European Union's  request for interim review, para.  43. (emphasis omitted)  
133 European Union's  request for interim review, para.  43. 
134 European Union's  request for interim review, para.  44. 
135 European Union's  request for interim review, para.  44. 
136 European Union's  request for interim review, para.  44. (emphasis original)  
137 United States'  comments on the European Union's  request for interim review, para.  46. WT/DS577/R/Add.1  
 
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  objective examination b ased on positive evidence , despite those groups accounting for 
around 80% of Spanish imports . 
2.43  Paragraph 7.249  
2.133.   The European Union requests  the Panel amend the second sentence of paragraph 7.249 by 
including the statement that the European Unio n considers the USITC's  analysis of price undercutting 
to be a "second volume analysis" " because the USITC considered a loss of market shares in the retail 
sector resulting from price undercutting" .138 The European Union also proposes  certain modifications 
to footnote 539 (footnote 537 of the Interim Report) . The European Union argues  that the 
modification should be made to clarify why the European Union considers the USITC's  consideration 
of price undercutting should be properly under stood as a second volume analysis.139 
2.134.    The United States did not comment on the European Union's  request.  
2.135.   We have decided to reject the European Union's  request. The European Union's  argument 
that the USITC's price effects analysis should be  considered a second volume analysis are more fully 
described at paragraph 7.252. Paragraph 7.249 is an introductory paragraph identifying what 
arguments will be addressed in section 7.4.5 of the Report. We see no persuasive reason to provide 
further detai l as to the European Union's arguments in this introductory paragraph.  
2.44  Paragraph 7.252  
2.136.   The European Union requests the Panel amend paragraph 7.252 by including in parenthesis 
at the end of the sentence the observation that "domestic prices in creased during the relevant 
period".140 The European Union also requests additional references be added to footnote 544 
(footnote 542 of the Interim Report), specifically to paragraph 528 of the European Union's  first 
written submission and paragraph 154 of  the European Union's  second written submission. The 
European Union argues that the proposed amendment to the second sentence of paragraph 7.252 
is "important to better understand the [European Union]'s  position that there cannot  be a (negative) 
price effe ct on domestic prices in view of Spanish imports because domestic prices actually increased 
during the POI".141 
2.137.   The United States did not comment on the European Union's  request.  
2.138.   We have decided to reject the European Union's  request to amen d the second sentence of 
paragraph 7.252. We do not consider the proposed amendment relevant to the issues considered in 
section 7.4.5.1. We have, however, decided to accept the European Union's  proposed amendments 
to footnote 544 (footnote 542 of the Interim Report), as the additional references complement the 
existing reference to paragraph 541 of the European Union's  first written submission.  
2.45  Paragraph 7.257  
2.139.   The United States requests the Panel amend the first sentence of paragraph 7.257, b y 
extending the quotation of Article  3.2 and Article  15.2 to include " as compared with the price of the 
like product of the importing Member ".142 The United States requests the proposed amendment for 
completeness.143 
2.140.   The European Union did not comment on the United States'  request.  
2.141.   We have decided to reject the United States'  request. The purpose of the sentence that the 
United States proposed to modify is not to describe the substantive obligation contained in 
Articles  3.2 and 15.2, but rather to describe the textual connection between Articles  3.1 and 15.1 
 
138 European Union's  request for interim review, para.  45. 
139 European Union's  request for interim review, para.  45. 
140 European Union's  request for interim review, para.  46. 
141 European Union's  request for interim review, para.  46. 
142 United States'  request for interim review, para.  20. 
143 United States'  request for interim review, para.  20. WT/DS577/R/Add.1  
 
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  and Articles  3.2 and 15.2. The proposed amendment would not clarify the meaning of the sentence, 
and we thus see no persuasive reason to accept the request.  
2.46  Paragraph 7 .276 
2.142.   The European Union requests the Panel amend the first sentence of paragraph 7.276 by 
replacing "price effects" with effects "in the form of volume (loss of market shares)".144 The 
European  Union request this amendment "to reflect the [European Union]'s  consistent position that 
the USITC considered volume and not a price effect in the context of price undercutting".145 
2.143.   The United States objects to the European Union's  request. The United States asserts there 
is no need to clarify the Europ ean Union's  argument, as the present language accurately reflects the 
language in paragraph 540 of the European Union's  first written submission, as referred to by the 
first sentence of paragraph 7.276.146 
2.144.   We have decided to reject the European Unio n's request. Section 7.4.5.1 addressed and 
rejected the European Union's  argument that the USITC's  price effects analysis should be considered 
a second volume analysis. Section 7.4.5.2 (of which paragraph 7.276 is part) specifies in its 
introductory paragr aph (paragraph 7.263) that the European Union's  substantive arguments will be 
addressed on the premise that the Panel has rejected the notion that the price effects analysis should 
be considered as a second volume analysis. We do not see any persuasive rea son to again refer to 
the European Union's  argument that the USITC's  price effects analysis should be considered a 
second volume analysis in paragraph 7.276.  
2.47  Paragraph 7.287  
2.145.   The European Union requests the Panel amend the fourth sentence of p aragraph 7.287.147 
First, the European Union request the Panel replace "assumption that only findings concerning" with 
"contention that in the absence of". Second, the European Union request the Panel replace "can be 
pertinent for an impact analysis" with " there could be no impact". The European  Union requests this 
amendment to more accurately reflect the European Union's  position.148 In particular, the 
European  Union maintains that it " does not take the position that the absence of volume and price 
effects for the whole industry will always exclude an impact but the [European Union]'s  argument is 
specifically made in the circumstances  of the ripe olive investigations".149 
2.146.   The United States did not comment on the European Union's  request.  
2.147 .  We have decided to accept the European Union's  request to increase the precision of the 
fourth sentence of paragraph 7.287.  
2.48  Paragraph 7.291  
2.148.   The European  Union requests the Panel amend paragraph 7.291.150 First, the 
European  Union requests t he Panel to replace the first sentence with "[w]e first address the 
European  Union's  argument that while the USITC examined economic factors for the industry as a 
whole, it also examined, in addition, certain economic factors only for the retail sector whi ch were 
determinative for the USITC's  impact analysis and therefore the USITC did not conduct an objective 
examination". Second, the European Union requests inserting "concluding" before "paragraph" and 
replacing "were only examined with respect to" with " related" in the third sentence. Third, the 
European Union requests the Panel to add at the end of the final sentence the statement, "nor why 
it did not examine any relevant factors for the two other 'segments'". The European Union also 
proposes certain ame ndments to footnote 651 (footnote 649 of the Interim Report). The 
 
144 European Union's  request for interim review, para.  47. 
145 European Union's  request for interim review, para.  47. 
146 United States'  comments on the European Union's  request for interim review, para.  47. 
147 European Union's  request for interim review, para.  48. 
148 European Union's  request for interim review, para.  48. 
149 European Union's  request f or interim review, para.  48. 
150 European Union's  request for interim review, para.  49. WT/DS577/R/Add.1  
 
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  European  Union argues that the proposed amendments more accurately reflect the 
European  Union's  arguments.151 
2.149.   The United States  opposes the proposed change. The United States asserts the existing 
language is an accurate reflection of the European  Union's  position.152 
2.150.   We have decided to reject the European Union's  request. The present wording of 
paragraph  7.291 accurately reflects the European Union's  arguments at paragraphs 566 and 568 of 
its first written  submission. Additionally, the European Union's  acknowledgement that the USITC 
also considered economic factors at the level of the industry as a whole is already noted in 
paragraph  7.292, which states that "[t]he European  Union  itself acknowledges that, in the 
paragraphs  preceding the USITC's  discussion of the loss of market share in the retail sector, the 
USITC 'assessed economic factors for the industry as a whole'". We therefore see no persuasive 
reason to provide further det ail as to the European Union's  arguments in this introductory paragraph.  
2.49  Paragraph 7.292  
2.151.   The European Union requests the Panel amend paragraph 7.292 by deleting "only" before 
"considered" and inserting "certain" before "economic factors".153 The European Union argues that 
these proposed changes would more accurately " reflect that the [European Union] acknowledged 
that the [United States] considered economic factors for the industry as a whole – and not 'only for 
the retail sector'".154 
2.152.   The United States does not object to the addition of the word "certain" but opposes the 
deletion of "only".155 
2.153.   We have decided to reject the European Union's  request for the same reasons as we rejected 
the European Union's  request in relation to paragraph 7.291.  
2.50  Paragraph 7.300  
2.154.   The European Union requests that the Panel introduce the following sentence at the start of 
paragraph 7.300: " [t]he European Union argues that the USITC could not find causation in a situation 
where Spanish im ports decreased at industry level, domestic prices increased and non -subject 
imports increased massively".156 The European Union requests this modification be made to more 
accurately reflect its position on causation.157 
2.155.   The United States objects to the European Union's  request. The United States asserts that 
the proposed addition is not relevant to the consideration of the USITC's  non-attribution analysis in 
this section of the Report.158 
2.156.   We have decided to reject the European Union's  request.  The European Union requests that 
the characterization of its arguments in paragraph 7.300 include reference to the decrease of 
Spanish imports at the industry level, increase in domestic prices and increase in non -subject 
imports. We do not consider this necessary as the changes in volume of Spanish imports and 
non-subject imports are addressed fully in section 7.4.7.2 of the Report.  
2.51  Paragraph 7.302  
2.157.   The United States requests the Panel amend paragraph 7.302.159 First, the United States 
reques ts the Panel insert "U.S." between "apparent consumption" in the first sentence of 
paragraph  7.302. Second, the United States requests that the Panel rephrase the third sentence of 
 
151 European Union's  request for interim review, para.  49. 
152 United States'  comments on the European Union's  request for interim review, para.  48. 
153 European Union's  request for interim review, para.  50. 
154 European Union's  request for interim review, para.  50. 
155 United States'  comments on the European Union's  request for interim review, para.  49. 
156 European Union's  request for interim review, para.  51. 
157 European Union's  request for interim review, para.  51. 
158 United States'  comments on the European Union's  request for interim review, para.  50. 
159 United States'  request for interim review, para.  21. WT/DS577/R/Add.1  
 
- 45 - 
  paragraph 7.302 so that it describes the United States'  argument as being " that the USITC's  findings 
were fully supported by the fact that the decline in apparent consumption was modest and could not 
account for the magnitude of the reported declines in the industry's  shipments and financial 
performance indicators". The United St ates argues that the proposed modifications more accurately 
reflect the arguments made by the United States.160 
2.158.   The European Union did not comment on the United States'  request.  
2.159.   We have decided to accept the United States'  request to more ac curately reflect the language 
of paragraphs 249 and 250 of the United States'  first written submission.  
2.52  Paragraph 7.312  
2.160.   The United States requests the Panel amend the third sentence of paragraph 7.312.161 First, 
the United States requests that  "lack of penetration" be replaced with "absence". Second, the 
United  States requests that "non -subject imports into the retail sector" be characterized as  
"non-subject imports from Morocco in the retail sector". Third, the United States requests the 
inclusion of "overall" between "small volume". The United States argues that the proposed 
modifications more accurately reflect the United States'  submissions.162 
2.161.   The European Union did not comment on the United  States'  request.  
2.162.   We have decided t o accept the United States request so that paragraph 7.312 more 
accurately reflects the United States'  submissions.  
2.53  Paragraph 7.314  
2.163.   The United States requests the Panel amend the third and fourth sentences of 
paragraph  7.314.163 First, the United States requests that the third sentence be modified to read 
"[t]he table, as filled in by the EU, also purports to show that Moroccan imports increased 100.28% 
(from a significantly lower base)". Second, the United States requests the fo urth sentence be 
modified to read "[t]he United States, in contrast, confirms that the actual data collected from 
importers'  questionnaires and contained in the USTIC's  [sic] investigation record show that, when 
properly reported, Moroccan imports increase d less than 20% during the period of investigation".  
The United States requests the proposed amendments for "completeness and to reflect that these 
are tables created by the [European Union] rather than directly from the USITC's  injury 
determination".164 
2.164.  The European Union did not comment on the United States'  request.  
2.165.   We have decided to partially accept the United States'  request regarding the fourth sentence 
of paragraph 7.314, to more accurately reflect the language of paragraph 20 of the 
United  States'  13 April 2021 comments which this sentence refers to. The amended sentence thus 
reads: "[t]he United  States, in contrast, asserts that Moroccan imports only increased less than  
around  20% during the period of investigation" . We have, however , decided to reject the 
United  States'  other requests as unnecessary for the analysis in paragraph 7.314.  
2.54  Paragraph 7.316  
2.166.   The European Union requests the Panel amend paragraph 7.316.165 First, the 
European  Union requests that "Spanish imports" be described as "decreasing". Second, the 
European Union requests that certain quotation marks be moved. Third, the European Union 
requests the Panel to add at the end of the sentence "whereas Span ish imports lost market share at 
industry level".  
 
160 United States'  request for interim review, para. 21. (emphasis omitted)  
161 United States'  request for interim review, para.  22. 
162 United States'  request for interim review, para.  22. 
163 United States'  request for interim review, para.  23. 
164 United States'  request for interim review, para.  23. 
165 Europ ean Union's  request for interim review, para.  57. WT/DS577/R/Add.1  
 
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  2.167.   The European Union requests the amendment to more accurately reflect the 
European  Union's  argument. In particular, the European Union maintains that the amendments 
would illustrate the European Unio n's argument that " the USITC could not find causation through 
market share losses at industry level where it explicitly found that Spanish imports did not cause 
market share losses for the overall industry (Spanish market shares decreased) while the USITC 
explicitly  found that nonsubject imports did cause market share losses at industry level".166 
2.168.   The United States objects to the European Union's  request. In particular, the United States 
observes that it is unnecessary to move the quotation marks as the existing quotation accurately 
reflects the European Union's  submissions.167 
2.169.   We have decided to reject the European Union's  request. First, the Panel already established 
in paragraph 7.316 that the context of the European Union's  argument is that  Spanish imports were 
decreasing and lost market share at the industry level. Additionally, as the United States observe, 
the present placement of quotation marks accurately reflects the European Union's  submissions.  
2.55  Heading 7.4.7.2, and paragraphs 7 .300 and 7.312 -7.316  
2.170.   The European Union requests the Panel amend heading 7.4.7.2, and paragraphs 7.300, 
7.312 -7.313 and 7.315 -7.316, variously through the deletion of the qualification of non -subject 
imports as "from Morocco", the replacement of "M oroccan imports" with "non -subject imports", and 
the introduction of the qualification that non -subject imports are "mostly" from Morocco.168 The 
European Union also proposes the addition of "and other nonsubject imports increased 13.96%" to 
the second last  sentence of para graph  7.314.169 The European Union also requests that "and other 
non-subject imports from 6,169 to 7,030" be included after "period of investigation" in 
paragraph  7.315.170 The European  Union requests this change because "the 
[European  Union ]'s argument concerns non -subject imports from all sources, not only from 
Morocco".171 
2.171.   The United States objects to the European Union's  request. The United States instead 
suggests that paragraph 7.300 could be amended to state, "notably from Morocc o".172 
2.172.   We have decided to implement an alternative change to that requested by the 
European  Union to clarify that the Panel's  findings are not affected by the alleged change in 
non-subject imports from sources other than Morocco. We have thus includ ed a footnote at the 
conclusion of paragraph 7.315 as follows:  
We note that the European Union also alleges that non -subject imports from sources 
other than Morocco also increased during the period of investigation from 6,169 tonnes 
to 7,030 tonnes. (Europ ean Union's  first written submission, para. 633 (Table 2:  Import 
sources during the POI (short tonnes dry weight))). We do not consider that this 
relatively small increase in non -subjects imports from sources other than Morocco could 
establish that the USI TC's non-attribution was not based on an objective examination 
of positive evidence, either by itself or in combination with the increase in Moroccan 
imports alleged by the European Union.  
2.173.   We have further decided to adopt the United States'  suggested amendment to 
paragraph  7.300, as it reflects the language of the European Union's  own submissions.  
2.56  Paragraph 7.366  
2.174.   The United States requests modifying paragraph 7.366 to avoid making a categorical 
statement that "molino" olives can not be processed into ripe olives, contending that the investigation 
record does not support this conclusion. The United States also contends that its 25  February  2021 
 
166 European Union's  request for interim review, para.  57. (emphasis omitted)  
167 United States'  comments on the European Union's  request for interim review, para.  54. 
168 European Union's  request for interim rev iew, paras.  51-57. 
169 European Union's  request for interim review, para.  55. 
170 European Union's  request for interim review, para.  56. 
171 European Union's  request for interim review, para.  51. 
172 United States'  comments on the European Union's  request for inte rim review, para.  51. WT/DS577/R/Add.1  
 
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  responses do not support the statement that "molino" olives are not processed into ripe olives. In 
particular, the United States requests striking language in the sixth sentence indicating that "molino" 
olives are not processed into ripe olives. T he United States further requests adding language in the 
seventh sentence that "molino" olives ar e "normally" processed into an industrial olive oil not 
suitable  for consumption as they do not meet the standard to sell as a ripe olive.  Finally, the 
United  States asks the Panel to delete language from the eighth sentence indicating that "molino" 
olives  could not be used to produce ripe olives.173 
2.175.   The European Union did not comment.  
2.176.   We have removed language in the sixth sentence of paragraph 7.366 indicating that "molino" 
olives are not processed into ripe olives. However, we reject the Un ited States'  requests to specify 
that "molino" olives are "normally" processed into industrial olive oil not suitable for consumption. 
In its 25  February  2021 response to Panel question No.  21, the United States argues that "the record 
information from Gua dalquivir's  verification did not indicate that Guadalquivir's  purchases of these 
raw 'molino' olives were processed into a product other than ripe olives" .174 However, this argument 
contrasts with language in Guadalquivir's  verification report, in which the  USDOC stated that sales 
of olives that are destined for the mill (i.e. "molino" olives) "are olives that do not meet the standard 
to sell as a ripe or table olive; these olives are processed into an industrial olive oil not suitable for 
consumption".175 We have additionally clarified language in the eighth sentence of paragraph 7.366 
to indicate that the USDOC had observed that "molino" olives  identified in Aceitunas 
Guadalquivir's  invoices did not meet the standard to sell as a ripe olive and were proce ssed into 
industrial olive oil not suitable for consumption.  
2.57  Paragraph 7.368  
2.177.   The United States requests the Panel to modify paragraph 7.368 to state that the USDOC 
did not "adequately" address  Aceitunas Guadalquivir's  submission that the "com paratively small" 
volume of reported sales of ripe olives relative to the reported volume of purchases of raw olives 
demonstrated that the reported volume of raw olives represented a volume greater than the 
purchases of "raw to ripe", rather than simply st ating that the USDOC did not address this point.  
The United States contends that this would more accurately reflect the administrative record.176 
2.178.   The European Union did not comment.  
2.179.   We have made the requested change to reflect that the USDOC  acknowledged Aceitunas 
Guadalquivir's  argument regarding the discrepancy although the Panel considers that the USDOC 
did not adequately consider the reasons for the existence of the discrepancy.  
 
_______________  
 
 
 
 
173 United States'  request for interim review, para.  24. 
174 United States'  25 February  2021 response to Panel question No.  21, para.  62. 
175 Aceitunas Guadalquivir verification report,  (Exhibit  USA-22), p.  7. 
176 United States'  request for interim review, para.  25. WT/DS577/R/Add.1  
 
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  ANNEX B  
ARGUMENTS OF THE PARTIES  
Contents  Page  
Annex  B-1 Integrated executive summary of the arguments of the European Union  49 
Annex  B-2 Integrated executive summary of the arguments of the United States  61 WT/DS577/R/Add.1  
 
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  ANNEX B -1 
INTEGRATED EXECUTIVE SUMMARY OF THE  
ARGUMENTS OF THE EUROPEAN UNION  
I. SPECIFICITY CLAIMS  
1. The EU raised five claims concerning the USDOC findings according to which the SPS, BPS are 
de jure specific subsidy programs.  
2. With the first claim, the EU takes issue with the fact that the USDOC determined that the SPS, 
BPS Programs are de jure specif ic without looking at the eligibility conditions for access to the 
subsidy, but by focussing exclusively on the rules for the determination of the amount of subsidy. 
Indeed, the textual interpretation of Article  2.1(a) of the SCM Agreement , consistent 
WTO jurisprudence and even the US ' Statement of Administrative Action Accompanying the  
Uruguay Round Agreements Act  confirms that an explicit limitation on access to a subsidy program 
to certain enterprises is effected through criteria/conditions which define the group of certain 
enterprises that have access or are eligible to that program.  
3. The US raised several arguments against the EU 's claim.  
4. In the first place, the US argued that it looked at the eligibility conditions, but in reality it 
ended up refe rring to the criteria for the calculation of the amount of subsidy to be granted to each 
eligible enterprise. Second, the US created a conceptual confusion between the concept of access to 
a subsidy program (which has to do with eligibility) and the determ ination of the amount of support 
to be granted to the enterprises that have access (i.e. are eligible) to that program. It then explained 
that a limitation on access can be realized through the criteria for calculating the subsidy amount. 
Third, the US acc used the EU of adopting a notion of de jure specificity not based on the treaty text, 
when it is the US which reads the word 'amount ' in the text of Article  2.1(a) of the SCM Agreement  
when such word is not there. Fourth, it explained that its interpretati on of Article  2.1(a) of the 
SCM Agreement  is necessary to avoid a loophole, but no such loophole exists. Fifth, the US argued 
that the USDOC found that there is an explicit limitation to a subcomponent of the subsidy programs 
(which constitute a subsidy pr ogram in itself) when neither the USDOC findings nor Article  2.1(a) 
ever mention any subcomponent.  
5. The reality is much simpler than that pictured by the US. The BPS  Programs (and the SPS) do 
not grant support specifically to olive growers. These program s are designed to be the central 
element of the basic income support system for all EU farmers and hence virtually any farmer has 
access to those programs. The eligibility and subsidy calculation criteria under those programs are 
the same for all EU farmer s. Under those programs, neither eligibility nor subsidy amount is in any 
way linked to what a farmer decides to produce, if anything.  
6. In conclusion, by raising a riddle of alternative arguments to try to justify the USDOC findings 
(that have little to no connection with what is explained in the USDOC Determinations), the US 
confirms the EU 's claim according to which the USDOC de jure specificity findings are not based on 
an examination of the limitations on access or the eligibility conditions  of the programs at issue, and 
therefore they are in violation of Articles  2.1 and 2.1(a) and 2.4 of the SCM Agreement . 
7. With the second claim as regards de jure specificity, the EU showed that the USDOC 
considered that the SPS, BPS are subsidy programs coupled to the production of olives and therefore 
de jure specific. However, that finding is undoubtedly contradicted by positive evidence on the record 
and by the USDOC itself that acknowledged that support under those programs is not linked to the 
contin ued production of olives or any other crop. Therefore, the USDOC findings are erroneous and 
contradictory since, as a matter of plain logic, either access to a subsidy is conditioned on the 
production of a certain crop or it is not. Faced with that manifes t contradiction, the US denied that 
it found the subsidy programs at issue to be tied to the production of olives or even to farmers that 
grew olives during the POI when the BPS applied. Instead, the US came up with the "alternative 
narrative " arguing that  the USDOC found the SPS and BPS Programs to be de jure specific to certain 
undertakings that engaged in olive production during the COMOF Program, whatever they may have 
produced subsequently either during the SPS or during the POI when the BPS Programs a pplied. WT/DS577/R/Add.1  
 
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  However, the USDOC found explicitly that the subsidy programs at issue are de jure specific to 
farmers growing olives under the SPS and BPS programs and it repeated that finding in many places 
in its Determinations.  
8. In any event, this alternativ e narrative cannot be found in the USDOC determinations and 
therefore is an ex -post rationalisation. This simple observation confirms that the USDOC de jure 
specificity findings are not based on positive evidence and do not contain an adequate explanations  
of how that evidence supports those findings, because the US seeks to justify those findings with a 
new line of argument.  
9. Moreover, if the alternative narrative were correct it would imply an additional number of 
manifest contradictions and legal error s. In particular, it would mean that the US is countervailing 
the products produced by a group of enterprises (those that are growing olives under the POI when 
the BPS Program applied), while it found that the subsidies were de jure specific to another gro up 
(those that grew olives under the COMOF Program), i.e. more than ten years before the entry into 
force of the BPS as well as more than ten years before the POI. Likewise, the USDOC explicitly 
confirmed that it never investigated if and to what extent th e ripe olives that are exported to the US 
and are subject to the countervailing duties are produced by farmers that were either engaged in 
olives production since the COMOF Program , or by farmers  that started that production later on. 
Instead, the US is co untervailing any ripe olive from Spain as if any olive producers under the BPS 
had been producing olives during the COMOF Program or at least had received a payment entitlement 
whose values is somehow linked to the amount of support received during the COM OF Program. The 
US argues that it was not presented with evidence that any olive grower under the BPS and during 
the POI may hold a payment entitlement which is not linked to the COMOF Program. However, this 
argument is clearly incorrect because that is a situation that can arise under the normal operation 
of the legislation that governs the COMOF, SPS, BPS Programs and on which the USDOC based its 
specificity findings. The USDOC was even provided with a concrete example of an olive grower during 
the POI ho lding payment entitlement that did not derive from assistance granted under the COMOF 
Program . 
10. In summary, while the US denies that it found the subsidy at issue to be coupled to the 
production of olives and therefore specific, the explanations contain ed in the USDOC determination 
show that this is indeed what the USDOC erroneously concluded and therefore violated Articles  2.4, 
2.1 and 2.1(a) of the SCM Agreement . 
11. With the third claim about specificity, the EU explained that consistent WTO  jurisprud ence 
clarified that under the SCM Agreement  an investigating authority must find specific the subsidy 
program that it intends to countervail. Therefore its reasoning should start from the conditions 
limiting access to that program not those of a different one. However, the starting point of the 
specificity analysis of the USDOC is the COMOF Program and not the measure that has been 
determined to constitute a countervailable subsidy, i.e. the BPS Programs. In an attempt to justify 
this "reversed engineering " findings, the USDOC construed artificially a direct correlation between 
the amount of support granted to a farmer growing olives during the COMOF Program and the 
amount of support granted to the same farmer under the SPS and BPS Programs. But the legislat ion 
governing those programs (that is on the USDOC record) shows that such direct correlation does 
not exist. Rather the "direct correlation " is the result of a number of errors of appreciation of the 
relevant EU legislation by the USDOC. Moreover, farmers  growing olives during the BPS  Programs 
(and the POI) may have never grown olives before, so the support they receive sometimes cannot 
be related in any way to the COMOF Program.  
12. Faced with these errors and contradictions, once again the US came up wit h the alternative 
narrative according to which the SPS and BPS are de jure specific to the holders of entitlements 
whose value derived from the COMOF Program. However, these alternative narrative manifestly 
confirms that the USDOC found the BPS Programs to be specific (and therefore countervailable) by 
looking at the eligibility  conditions of the COMOF Program, and not at the eligibility conditions of the 
BPS Programs.  
13. It follows therefore that that the US has violated Articles  2.1 and 2.1(a) of the SCM Agreement  
by determining that the BPS Programs are de jure specific not b y looking at those programs (and 
the respective eligibility conditions) but by grounding its analysis first on a subsidy program that 
had ceased to apply 13 years before the POI and then by building a link between that gone -by 
program and the amount of ass istance granted under the BPS as of 2015.  WT/DS577/R/Add.1  
 
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  14. With its fourth claim, the EU showed that by finding that the SPS and BPS Programs are 
de jure specific, the US violated Articles  2.1, 2.1(b) and 2.4 of the SCM Agreement , because it did 
not explore the questio n of compliance of the eligibility and calculation criteria of the SPS and 
BPS Programs with Article  2.1(b) of the SCM Agreement . The EU showed, moreover, that the 
eligibility and amount calculation criteria of the SPS and BPS Programs comply with the requ irements 
of Article  2.1(b). In particular, as regards the calculation of the amount of support neither the SPS 
nor the BPS singled out the olive sector. The amount of support to be granted to farmers growing 
olives under the SPS or BPS Programs was calcula ted according to the same criteria applicable to 
farmer growing any other crop.  
15. The US argued that the SPS and BPS Programs are based on the COMOF Program which 
explicitly favored olive growers, and, because the SPS and BPS Programs continue to calcula te the 
subsidies conferred to olive growers at least in part based on what olive growers produced, the 
amount of subsidies conferred necessarily is not based on objective criteria or conditions. Moreover, 
while the US disagrees with the EU 's interpretation  of Article  2.1(b) of the SCM Agreement , it does 
not deny that it should have examined the subsidy programs at issue under that provision, too. 
Accordingly, in the Remand Determination the US tried to fix its failure to apply that provision and 
argued that  olive growers continued to receive a favourable treatment relative to other sub -sectors 
of the agricultural sector.  
16. However, the EU demonstrated that access or eligibility under the SPS and BPS is not based 
on assistance granted under the COMOF Progra m. The EU also demonstrated that the US  postulates 
that farmers were legally required and kept on growing olives from the COMOF Program all the way 
through the BPS Program, when there is no such legal requirement. Finally, the USDOC explicitly 
confirmed th at it never investigated if olive growers were favored compared to other sub-sectors of 
the agricultural sector.  
17. With the fifth claim concerning the USDOC de jure specificity findings, the EU showed that the 
explanations in the USDOC Determinations do not reasonably support its findings of de jure 
specificity. Those explanations are contradictory and based on many errors of appreciation of the 
relevant legislation. Some of those errors have been exposed in the discussion of the previous EU 's 
claims. Ins tead of demonstrating that it committed no error of appreciation, the US tried to explain 
that those errors are not material. To name just a few of those contradictions and errors, it should 
be recalled that the very foundation of the USDOC 's reasoning abo ut de jure specific (i.e. that the 
COMOF Program would be a de jure specific subsidy program) is a finding that the USDOC explicitly 
chose not to render. That reasoning therefore cannot stand. Second, the USDOC contradicts itself 
arguing that the specifici ty element inherent in the COMOF Program transited into the SPS Program 
and then into the BPS Program but then finding at the same time that both the SPS and BPS 
Programs are completely decoupled from production, and accessible to farmers in general. Third , 
the USDOC explained that the convergence process could remove de jure specificity but categorically 
denied the same idea a few lines later. Fourth, the US found that the SPS was implemented on a 
regional basis and it argued that there could have been reg ions producing just olives. However, the 
simple reality is that the SPS was not implemented on a regional basis, the USDOC never enquired 
about the different crops cultivated in each Spanish agricultural region or if there had ever been a 
region growing on ly olives, and in any event Spanish farmers both under the SPS and under the 
BPS Programs are legally free to grow whatever crops pleases them in whatever region.  
18. The EU therefore maintains that the USDOC 's explanations are not reasonably capable of 
supporting its findings about de jure specificity of the subsidy programs at issue. Those findings 
moreover are not based on positive evidence. Therefore, the US violated its obligations under 
Articles  2.1, 2.1(a) and (b) and 2.4 of the SCM Agreement  also fo r these reasons.  
19. It follows, moreover, that by determining that the BPS and Greening are countervailable 
subsidies and subjecting them to Part V of the SCM Agreement , without properly demonstrating that 
they are specific, the US violated also Article  1.2 thereof.  WT/DS577/R/Add.1  
 
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  II. PASS-THROUGH BENEFIT CLAIMS  
1. The EU 's as applied claim  
20. The EU demonstrated that the USDOC failed to carry out an analysis to determine the 
existence and extent of pass -through benefit as required under WTO  law in the Spanish ripe olive 
investigation. The USDOC simply attributed the full subsidy amounts granted to raw olive producers 
to the processors of ripe olives which are the subject of th e US investigation. The USDOC did so by 
relying on the WTO -inconsistent presumption in Section  771B according to which the full amount of 
subsidies granted to the producers of a raw agricultural product "shall be deemed to be provided " 
to the processed pro duct if (i)  the demand of the raw product is substantially dependent on the 
demand for the latter stage product and (ii)  the processing only adds limited value. Rather than 
determining - in view of the specific circumstances of this case - whether and to w hat extent Spanish 
ripe olive processors were "better off " as a result of the subsidies granted to olive producers, the 
USDOC mechanistically applied the two  formalistic conditions in Section  771B – which have nothing 
to do with benefit - and on that basis  presumed  that the entire amount of benefit passed through to 
the ripe olive processors. It is noteworthy that the USDOC even failed to properly apply the 
two conditions in Section  771B in the present case since the demand of raw olives is substantially 
dependent  – by more than 90% - on olive oil, not on ripe olives as alleged by the USDOC, and the 
industrial processing of raw olives adds much more than just "limited value ". 
21. The EU demonstrated that WTO  law, notably Article  VI:3 of the GATT of 1994 and Articles  10, 
19.1, 19.3, 19.4 and 32.1 of the SCM Agreement , requires a pass -through analysis – a determinatio n 
by the authority of the existence and extent of benefit - in instances where, as in the present case, 
the authority intends to attribute benefit  granted to an input producer and direct subsidy recipient 
to an indirect recipient and where the input product is purchased by the processor in arm 's length 
transactions. Section  771B neither constitutes nor replaces a pass -through test and hence by 
apply ing Section  771B the US violated the above -referenced provisions.  
22. The USDOC in its determinations explicitly rejected the need to carry out a pass -through 
analysis under WTO  law "in light of the applicability of Section  771B" in response to arguments raised 
in this respect by interested parties. The USDOC stated that "a pass -through analysis that would be 
conducted in the context of an upstream subsidy investigation is not relevant  to whether respondents 
received a benefit ". [emphasis added]. The opposite is true. A  pass-through benefit analysis in the 
Spanish ripe olive investigation would have been highly relevant and, more importantly, was also 
legally required under WTO  law. WTO  law does not contain an exception for agricul tural products 
with respect to which the requirement to carry out a pass -through analysis would not apply in case 
of input subsidies. The USDOC dismissed the legal obligation under WTO  law to carry out a  
pass-through analysis by explaining in the determin ations that only US law has direct legal effect 
for its investigation and "not the WTO  Agreements or WTO  reports ". This demonstrates that the 
USDOC knowingly and intentionally disregarded WTO  obligations when applying Section  771B.  
23. The USDOC at no poin t assessed whether - and to what extent - Spanish ripe olive processors 
were "better off " as a result of the subsidies granted to raw olive producers as would be required 
under any assessment of benefit. The USDOC did not at all look at specific factual ci rcumstances 
such as e.g. the price or competitive market conditions for raw olives. In particular, the USITC did 
not assess whether the price of raw olives purchased by the processors was lower than the market 
price for raw olives would have been absent th e input subsidies as would be expected for a benefit 
analysis in these factual circumstances. Instead the USDOC simply looked at a demand relationship 
and at an "added value " relationship between two products. This obviously has nothing to do with 
benefit within the meaning of Article  1 SCMA. By limiting the USDOC 's assessment to formalistic 
conditions concerning two  specific aspects of a relationship between two products, Section  771B was 
unable to take into account the specific facts of the case and in pa rticular those elements that would 
matter for a benefit analysis such as price and competitive market conditions. Lastly, the USDOC 
also failed to assess the precise amount of benefit in the Spanish ripe olive investigation as it simply 
presumed, based on Section  771B, that the entire  amount of benefit passed through to the ripe olive 
producers. The USDOC failed to precisely determine the benefit amount since Section  771B simply 
does not allow for such an assessment. Section  771B will, in all circumstances,  presume that the 
entire amount of benefit passes through to the processor. No calibration of the benefit amount is 
possible under Section  771B and hence the USDOC did not – and could not - "ascertain as accurately 
as possible the amount of subsidization " as required under WTO  law. WT/DS577/R/Add.1  
 
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  24. The US explicitly acknowledged in these proceedings the existence of the obligation to 
determine pass -through benefit. The US also expressly agreed that no special rules apply in this 
regard to agricultural inp ut products even though Section  771B is exactly that, a special rule for 
agricultural input products. The US has not presented any arguments with respect to the EU 's as 
applied pass -through claim other than contending that Section  771B would contain a spec ial  
pass-through analysis for agricultural input products that would be justified in view of the 
"flexibilities " of the SCM Agreement . However, Section  771B does not contain a pass -through test 
as the EU demonstrated (see below) and as already a GATT pane l established 30  years ago in  
US – Canadian Pork . The USDOC 's application of Section  771B in the Spanish ripe olive investigation 
was therefore WTO -inconsistent.  
2. The EU 's as such claim  
25. The EU demonstrated that Section  771B violates WTO law as such, notably Article  VI:3 of the 
GATT of 1994 and Articles  10, 19.1, 19.3, 19.4 and 32.1 of the SCM Agreement . 
26. The EU showed that Section  771B applies in situations of arm 's length transactions between 
the input producer and the processor which is where WTO  law requires an analysis of pass -through 
benefit. The EU also showed that Section  771B is a mandatory provision that obliges the USDOC to 
apply the presumption of full pass -through benefit whenever the two  conditions in Section  771B are 
fulfilled. The USDOC has no discretion. These aspects of the EU 's claim are not disputed by the US.  
27. The only disputed question in the context of the EU 's as such claim concerns the issue whether 
the two very narrowly tailored conditions in Section  771B somehow contain an assessment of  
pass-through benefit specifically for agricultural input subsidies. The EU has shown that the reason 
for the US legislator to adopt Section  771B was precisely to avoid the USDOC having to carry out 
such a pass -through anal ysis for agricultural input subsidies. Therefore, the whole raison d 'être of 
Section  771B is for the USDOC not to carry out a pass -through assessment – which US law requires 
for all other products - and to replace such an assessment with two  narrow and for malistic conditions 
that are only based on the demand and added -value relationship between two products. This has 
nothing to do with an assessment of pass -through benefit.  
28. In view of the clear legislative intention underlying Section  771B (avoidance of  a pass -through 
analysis) and the clear WTO -inconsistent content of Section  771B (no assessment whether recipient 
is "better off ", no pass -through benefit analysis, mere assessment of relationship between 
two products and presumption based thereupon), the US resorted to a deliberate  misrepresentation 
of the EU 's as such claim as its primary defence. The US has been arguing – without any factual 
basis in the EU 's panel request, in the EU 's first written submission or in subsequent  EU submissions 
- that the E U would claim that the relevant provisions in the SCM Agreement  require a specificprice 
comparison method for input subsidies. The EU  nowhere made such a claim. The EU 's claim, clearly 
reflected in the panel request and in the EU 's submissions, is that the  relevant provisions require a 
"determination " of the existence and extent of pass -through benefit and that the two conditions in 
Section  771B are unsuitable for this purpose for a number of reasons.  
29. First, Section  771B is based upon a WTO -inconsistent  presumption. The US expressly agrees 
that benefit must be determined and cannot be presumed  by the authority. However,  whenever the 
two formalistic conditions in Section  771B are fulfilled the USDOC "shall deem " – i.e. shall presume 
– that the entire amount of benefit was passed through from the input producer to the processor 
without any consideration of relevant factual circumstances. This constitutes a WTO -inconsistent 
legislative presumption of pass -through benefit.  Whenever the two conditions of Section  771B are 
fulfilled, the US therefore necessarily violates WTO  law by applying this presumption. The US has 
not presented any valid argument against the EU 's claim in this respect.  
30. Second , Section  771B does not pe rmit the investigating authority to determine the precise 
amount (or extent) of benefit. Section  771B contains an "all-or-nothing rule ". Either the 
two conditions are fulfilled, in which case the full amount of benefit must be presumed by the USDOC 
to have  passed through. Or, the two conditions are not fulfilled in which case Section  771B does not 
apply and no benefit passes through under this provision. Section  771B therefore does not allow to 
determine the "extent " of benefit as required under the relevan t provisions as clarified by the 
Appellate Body. Whenever the two conditions of Section  771B are fulfilled, the US necessarily 
violates WTO  law by failing to determine the precise extent of pass -through benefit as the USDOC 
always presumes full pass-throug h. The US has not presented any valid argument against the EU 's 
claim in this respect.  WT/DS577/R/Add.1  
 
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  31. Third , Section  771B does not contain a pass -through analysis that would allow to determine 
the existence  of benefit since the two conditions are unsuitable for that purpose. In fact, 
Section  771B has nothing to do with benefit and is inapt for a pass -through analysis for many 
reasons.  
32. First, the Appellate Body clarified that the determination of "benefit" under Article  1.1(b) SCMA 
seeks to identify whether the fin ancial contribution has made "the recipient 'better off' than it would 
otherwise have been, absent that contribution ". The Appellate Body also clarified that the 
assessment of benefit is "one that is financial in nature " and one that "implies some kind of 
comparison " with the market. The two conditions in Section  771B concern (i) the dependence of 
demand between the raw and the processed product and (ii) the question whether processing adds 
limited value. Clearly, these two conditions have nothing to do with an assessment as to whether 
the recipient of a financial contribution is "better off ". They have nothing to do with "an assessment 
that is financial in nature ". They have nothing to do with a "comparison with the market ". In short, 
the two conditions in Section  771B are entirely inapt to determine benefit within the meaning of 
Article  1 SCMA.  
33. Second , the two conditions in Section  771B are only two conditions out of a whole range of 
market conditions (e.g. competitive market situation) that would be  relevant, if at all, to assess a 
likelihood of pass -through benefit. Therefore, in themselves these two conditions are entirely 
unsuited to even assess any remote likelihood of benefit.  
34. Third, the two conditions in Section  771B may, at most, contribut e to an assessment of a 
likelihood of pass -through benefit. A likelihood does not "establish ", "find" or "determine " the 
existence of pass -through benefit as required under the relevant provisions.  
35. Fourth , the GATT Panel in US – Canadian Pork  confirmed  already 30 years ago that 
Section  771B does not assess all the facts that are relevant for a pass -through analysis, a standard 
that even the US agrees with.  
36. Fifth, Section  771B entirely disregards the price of the agricultural input product which is t he 
obvious key indicator for benefit where an input product is sold for a price to an alleged indirect 
beneficiary and where that price is the only means to reflect, or not, the subsidy in question.  
37. Sixth, Section  771B does not "calculate " benefit as Article 14 SCMA indicates would be 
required by way of comparison with the market. Section  771B only looks at the factual relationship 
between two products and then presumes benefit. There is no comparison with any market 
benchmark whatsoever.  
38. Seventh,  Section  771B does not allow for a comparison of the price of the subsidized input 
product with a market price which would be the proper way of determining pass -through benefit in 
the situations covered by Section  771B. The question of "price comparisons " constitutes one of the 
(many) EU 's arguments as to why Section  771B does not contain a pass -through analysis. It is not 
even a determinative argument. Contrary to repeated US  allegations, the EU never brought a claim 
that the relevant provisions would stipul ate a price comparison method. The fact that the EU 's 
argument on price comparisons is correct is even reflected in US legislation which provides – for 
situations other than those covered by Section  771B - for a "price comparison " method to determine 
the existence and extent of pass -through benefit for input subsidies. Hence a price comparison is 
clearly the "normal " way of determining benefit even under US law for input subsidies. The fact that 
a price comparison method is apt for  determining pass -through benefit is derived from the 
uncontested obligation under the Agreements to determine the precise amount pass -through 
benefit, in combination with the uncontested meaning of the term "benefit " in Article  1 SCMA 
(requiring a compari son with the market) and in combination with the specific factual circumstances 
of input subsidies. In any event, it is sufficient for the EU to have established that Section  771B is 
an unsuitable method; it is not required for the EU to also establish whi ch precise pass -through 
method would be the correct one for its claim to succeed.  
39. Lastly, the only argument presented by the US was that Section  771B constitutes a special 
pass-through analysis in view of the specific circumstances that would allegedly  surround agricultural 
input commodities. At first, the US argued that Section  771B was needed in order to avoid that 
foreign farmers would circumvent duties imposed on raw agricultural products by exporting those 
products in processed form (e.g. raspberri es would be exported as frozen raspberries). The EU has 
shown that farmers cannot turn into industrial processors and hence there is no such risk of 
circumvention. In view of the weakness of its circumvention argument, the US subsequently 
switched to an al ternative reasoning. The US contended that all agricultural input markets in the 
world are "systemically perfectly competitive ". Apart from this sweeping assumption being without WT/DS577/R/Add.1  
 
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  any factual basis, the EU has also shown that perfectly competitive markets d o not exist in the real 
world. Perfectly competitive markets are a hypothetical economic theorem which cannot justify 
Section  771B. The US 's arguments in defence of Section  771B are therefore fundamentally flawed 
and, as a result, every single application of Section  771B will be flawed as well. Fact is, there is 
nothing special about agricultural input commodities. They must be treated like any other input 
product. And while there may be special rules under US law for agricultural input products, there 
certainly are no special rules for agricultural input commodities under WTO  law. Which is precisely 
one of the reasons why Section  771B violates WTO  law as such.  
40. The EU therefore established that Section  771B necessarily  violates WTO  law every time it is 
applied on three separate grounds, i.e. even under the strictest possible legal standard. The 
Appellate Body clarified that such a high standard is not even required. Section  771B therefore a 
fortiori  violates WTO  law as such under any less stringent legal standard.  
III. INJURY CLAIMS  
41. The USITC 's injury determinations are riddled with numerous WTO -inconsistencies from start 
to finish. The fundamental flaw of the USITC 's causation analysis is that the USITC attempted to 
"find" causation in a situation where the volume of Spanish ripe olives decreased  at industry level 
and where domestic prices only displayed positive trends  (domestic prices increased). It is obvious 
that in the absence of both volume and price effects, there cannot be causation of injury for the 
domestic industry by subject imports. This is, quite simply, impossible legally and economically. In 
order to camo uflage this fundamental flaw, the USITC resorted to all sorts of WTO -inconsistent tricks 
and shortcuts throughout its injury "analysis ". For example, the USITC artificially "segmented " the 
market along distribution channels in order to subsequently carry o ut its injury and causation 
analysis only for the retail channel which accounted for less than 20% of Spanish imports.  
1. Volume effects: Article  15.1 and 15.2 SCMA/ Article  3.1 and 3.2 ADA  
42. Arbitrary "segmentation " of the market.  The EU demonstrated tha t the USITC had no 
factual or evidentiary basis for its "segmentation " according to distribution channels. The 
"segmentation " was contrary to the USITC 's own findings, was nowhere explained and ran contrary 
to the (non -segmented) definition of the domestic  industry in Article  16.1 SCMA / Article  4.1 ADA. 
Not only could the market not be "segmented " according to distribution channels by the USITC for 
the purpose of Article  15 SCMA / Article  3 ADA, the USITC under these circumstances could only 
consider a vol ume increase for the industry as a whole  under Article  15.2 SCMA / Article  3.2 ADA 
which it failed to do because Spanish imports decreased  at industry level.  
43. The EU does not – and never did – question the factual existence of the three distribution 
channels. Different distribution channels factually exist for virtually every single product in the world. 
However, the factual existence of different distribution c hannels does not mean that an industry can 
automatically be segmented by the authority along those lines under Article  15 SCMA / Article  3 
ADA. This will depend on the facts of the case, in particular whether and to what extent conditions 
of competition di ffer across the alleged segments. If conditions of competition are uniform and 
homogeneous across the industry like in the ripe olive investigation, the authority can only assess 
injury and causation for the industry as a whole since there simply are no se gments. All the 
numerous examples of previous industry segmentations that were presented by the EU and the US 
in these proceedings concerned segmentations where indeed conditions of competition between 
imported and domestic products differed by segment (e. g. because there was no competition with 
imported products in the captive segment of the market or because certain product categories of 
imported and domestic products did not compete with each other) and where the authority explained 
the segmentation in t he determinations and also specifically explained the relevance of the 
segmentation for the causation analysis. This is not the case for Spanish ripe olives.  
44. The USITC defined one single like product - all ripe olives. The USITC defined one single 
dome stic industry of ripe olives producers. The determinations show that all ripe olives are "highly 
substitutable " and hence every single imported ripe olive competes with every single domestic ripe 
olive. A ripe olive is a ripe olive is a ripe olive. Hence th ere was nothing to "segment " for the USITC 
– conditions of competition were uniform across the entire industry. The EU 's position is confirmed 
by case law according to which "the domestic industry with respect to which injury is considered and 
determined m ust be the domestic industry defined in accordance with Article  4.1" – the USITC 
defined the industry in a non -segmented manner. The EU 's position is also supported by Appellate 
Body case law emphasizing the importance of substitutability for a causation a nalysis.  WT/DS577/R/Add.1  
 
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  45. Lastly, the USITC failed to provide any explanation – let alone a reasoned and adequate 
explanation – for its alleged "segmentation " along distribution channels. This is all the more striking 
in view of the fact that this so -called "segmentati on" constitutes the centerpiece of the USITC 's 
entire causation analysis. And yet the "segmentation " by distribution channels is not worth a single 
sentence of explanation in the determinations.  
46. The US argued that there would be certain elements which would show limitations of 
substitutability (e.g., alleged different processing and packaging requirements per segment, the 
existence of "unique " purchasers per segment etc.). The EU rebutted these arguments. These US 's 
arguments are in any event rebutted a lso by the USITC 's own determinations as well as by the 
overwhelming evidence on file (e.g. statements by customers and petitioners) which show that all 
ripe olives are interchangeably purchased by all distribution channels (demand -side substitutability) 
and all producers supply all types of ripe olives (supply -side substitutability). The USITC 's artificial 
and arbitrary segmentation without positive evidence was therefore WTO -inconsistent per se . 
47. Failure to consider an increase of volume for the indust ry as a whole.  The USITC only 
considered a volume increase of subject imports for the retail channel. As the EU just explained, the 
USITC could only consider such volume increase for the industry as a whole  in view of the specific 
factual circumstances of this case, notably in light of the uniform conditions of competition across 
the entire industry (i.e. no segments) and the non -segmented definition of the domestic industry. 
The consideration of only the retail channel by the USITC therefore in itself viol ated Article  15.2 
SCMA / Article  3.2 ADA.  
48. However, even hypothetically assuming that the USITC was entitled in principle to carry out 
a segmented volume analysis ( quod non ), the USITC 's segmented analysis is WTO -inconsistent. The 
US expressly agreed with Appellate Body case law in US – Hot Rolled Steel  that a segmented analysis 
under Article  15.2 SCMA / Article  3.2 ADA requires that all industry segments must be considered 
in like manne r unless the authority provides a satisfactory explanation. That case law makes eminent 
sense since otherwise an authority risks overlooking positive trends by focusing only on the poorly 
performing industry parts – which is exactly what happened in the pr esent case.  
49. The US explicitly acknowledged in its first written submission that it carried out a segmented 
analysis even if it later attempted to backtrack from this express acknowledgment. It is in any event 
plainly obvious from the determinations tha t the USITC 's volume analysis is "segmented " as it only 
focuses on the retail "segment " and completely disregards the other two channels which are not 
even mentioned. The industry as a whole is only mentioned in passing in one sentence stating that 
subject  imports decreased . This is not a segmential analysis of all industry parts in like manner 
complying with WTO  law. The USITC provided no explanation, let alone a satisfactory explanation, 
as to why it did not need to consider the other industry parts. The US attempts to portray as an 
explanation certain references by the USITC in the determinations to the "large size " of the retail 
channel for the domestic industry. However, these references are merely factual statements 
explaining absolutely nothing. The p anel in Mexico – Corn Syrup  also found that the size of a segment 
for the domestic industry is not relevant in this regard. The US ex post  attempted to provide an 
explanation that "actual competition " only took place in the retail channel. However, not onl y is that 
explanation factually incorrect (competition took place in all three channels), that alleged 
"explanation " invoked by the US was explicitly rejected  by the USITC in its determinations!  
50. The US 's attempts to equate a mere listing of data for th e other two distribution channels and 
the industry in some annexed tables as "consideration " despite the complete absence of any 
discussion or analysis of such data equally fail as already established by previous panel reports.  
51. In addition, the USITC 's consideration of volume only in the retail channel (accounting for less 
than 20% of subject imports) did not form a "meaningful basis " for causation regarding the domestic 
industry and the USITC disregarded clear evidence that there was no increase of vol ume. Both 
aspects violate Article  15.2 SCMA / 3.2 ADA as clarified by the Appellate Body.  
52. Improper extension of volume effects to the industry as a whole. The USITC, without 
any positive evidence, reasoning  or explanation, simply extended its volume analysis for the retail 
channel to the industry as a whole which violates Article  15.2 SCMA / Article  3.2 ADA. The US has 
not presented any valid arguments in this respect.  WT/DS577/R/Add.1  
 
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  53. Failure to consider a volume increa se for the industry.  The USITC failed to consider an 
increase  of subject imports for the industry. The text of Article  15.2 SCMA / Article  3.2 ADA and case 
law make crystal clear that only three types of volume increase exist: a volume increase in absolute  
terms or relative to domestic production or consumption. The USITC only considered a decrease  of 
volume of Spanish imports as the US expressly acknowledges in its submissions. The US 's only 
argument is a reference to a footnote in panel report  US – Counte rvailing Duty Investigation on 
DRAMS  which actually fully supports the EU 's position. Even more importantly, the same panel report 
– relied on by the US – explicitly confirms that the consideration of a mere presence or decrease of 
subject imports does not amount to a consideration of volume under Article  15.2 SCMA / 3.2 ADA. 
The US 's interpretation would also render a consideration of a volume "increase " devoid of any 
meaning.  
2. "Price " effects: Article  15.1 and 15.2 SCMA  / Article  3.1 and 3.2 ADA  
54. Arbitrary "segmentation " of the industry. See above under 1 where the EU explained why 
the USITC 's "segmentation " was per se  WTO-inconsistent. In view of the uniform conditions of 
competition and the non -segmented definition of the domestic industry, the USITC could only 
consider effects under Article  15.2 SCMA / 3.2 ADA for the industry as a whole and not, as it did 
once again  in the context of "price" effects, focus on the retail channel while ignoring the other 
industry parts.  
55. Failure to consider effects for the industry as a whole.  Even hypothetically assuming 
that the USITC could carry out a segmented analysis in the sp ecific circumstances of this case  
(quod non ), its segmential analysis focusing only on the retail channel is highly WTO -inconsistent.  
56. The EU demonstrated that the USITC – somewhat bizarrely – carried out a (second) volume 
analysis under the heading "price effects " since the USITC considered a loss of volume in the retail 
channel allegedly resulting from price undercutting. The US keeps referring to a consideration by 
the USITC of "price effects " but the EU showed that the USITC nowhere carried out a pro per price 
undercutting analysis. To start with, the USITC did not even have positive evidence for instances of 
price undercutting specifically in the retail channel which was required as the USITC was purporting 
to consider volume effects in the retail cha nnel resulting from price undercutting. Also, the USITC 's 
few instances of price undercutting do not amount to a consideration of price undercutting as the 
Appellate Body clarified. Even more  importantly, the USITC nowhere considered price effects within 
the meaning of Article  15.2 SCMA / 3.2 ADA, i.e. negative  effects on domestic prices . The USITC 
only considered positive  price trends regarding domestic prices because domestic prices 
increased  and there was no price depression and no price suppression. Jus t like a consideration of a 
decrease of volume constitutes no consideration of a volume increase, a consideration of positive 
price trends constitutes no consideration of price effects under Article  15.2 SCMA / 3.2 ADA since 
such positive price trends can never form the basis for causation through price effects. Perhaps 
realizing the absence of price effects, the USITC simply stopped its "price effect " analysis half -way, 
did not "bother " any longer about negative effects on domestic prices and instead switc hed to a 
(second) volume analysis  (!). It is noteworthy that the US failed to carry out a price undercutting 
analysis even by its own standard as set out in its submissions (requiring a dynamic assessment of 
price developments of import and domestic prices  - which is entirely lacking in this case).  
57. The USITC 's second  volume analysis is based on an alleged loss of market share in the retail 
channel. The EU demonstrated that the USITC was obliged to only consider volume for the industry 
as a whole in view of the specific circumstances of this case (non -segmented industr y). The 
consideration of volume only in the retail channel is therefore in itself WTO -inconsistent. In any 
event, even assuming that a segmential analysis is in principle permitted ( quod non ) the USITC 's 
exclusive focus on the retail channel does not amoun t to a segmential analysis complying with  
US – Hot Rolled Steel  which the US itself accepts as legal standard (even if that acceptance is not 
decisive). The US also explicitly acknowledged that its second volume analysis concerning market 
share was "limite d to the retail channel of distribution ". Hence the USITC did not consider all industry 
parts in like manner, in fact, the USITC completely ignored the other industry parts.  
58. In addition, the USITC 's consideration of volume in the retail channel did not  form a 
"meaningful basis " for causation regarding the domestic industry as a whole and the USITC 
disregarded clear evidence that there was no increase of volume at industry level, against  
Appellate Body case law.  WT/DS577/R/Add.1  
 
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  59. Improper extension of "price " effects  to the industry as a whole.  The USITC, without 
any positive evidence, reasoning or explanation, simply extended its analysis for the retail channel 
to the industry as a whole which violates Article  15.2 SCMA / Article  3.2 ADA. The US  has not 
presented any  valid arguments in this respect.  
3. Impact analysis: Article  15.1 and 15.4 SCMA  / Article  3.1 and 3.4 ADA  
60. US's preliminary ruling request.  The EU demonstrated that its claims under Article  15.4 
SCMA / 3.4 ADA fall within the Panel 's terms of reference, inter alia  because of the very close 
interlinkage of the various provisions under Article  15 SCMA / 3 ADA and the explicit reference to 
the "consequent impact " (under Article  15.4 SCMA / 3.4 ADA) in the EU 's panel request. The US 's 
preliminary ruling request therefore is to be rejected.  
61. Consequential violations.  The EU demonstrated that the violations of Article  15.2 SCMA / 
3.2 ADA resulted in a consequential violation of Article  15.4 SCMA / 3.4 ADA.  
62. Failure to examine impact for the industry as a whole.  The EU demonstrated that while 
the USITC may have assessed economic indicators for the industry as a whole,  the USITC also 
examined certain economic indicators only for the retail channel (notably market shares, inventories 
and profits). Both the determinations and the US 's submissions demonstrate that it was in fact these 
indicators for the retail channel that  were decisive for the outcome of the impact analysis. The US 
itself expressly acknowledged that the USITC "focused aspects of its [impact] analysis on the retail 
segment ". However, as explained previously, a segmential analysis must be carried out for all  
industry parts in like manner whereas the USITC entirely disregarded, without explanation, many 
indicators for the retail channel and all indicators for the two other channels. The USITC only  
cherry -picked those indicators from the retail channel that wou ld support its analysis. This is clearly  
WTO-inconsistent.  
63. The USITC also failed to examine the explanatory force of subject imports for the state of the 
domestic industry which refers to the industry as a whole. However, the USITC only examined the 
relationship between subject imports in the retail channel (accounting for less than 20% of subject 
imports) and the state of the industry as regards the retail channel. Once again, the USITC 's focus 
of analysis is only on the retail channel. The USITC then simply extended its finding of impact for 
the retail channel to the industry as a whole without any positive evidence, reasoning or explanation. 
Such segmential analysis only for one channel does not provide explanatory force for the state of 
the industry as a whole and is not carried out in like manner.  
64. Lack of volume effect at industry level.  The determinations show – and the 
US acknowledged – that the volume of subject imports did not increase at industry level. On the 
contrary, subject imports decre ased. A decrease of subject imports logically cannot lead to a 
"consequent " impact under Article  15.4 SCMA / 3.4 ADA. In a similar vein, an authority cannot 
disregard evidence that subject imports have no impact on the domestic industry. Decreasing subject  
imports are the clearest evidence that subject imports have no impact for a causation analysis based 
on volume effects.  
65. Improper extension of impact analysis to the industry as a whole.  The USITC, without 
any positive evidence, reasoning or explanatio n, simply extended its impact analysis for the retail 
channel to the industry as a whole which violates Article  15.4 SCMA / Article  3.4 ADA.  
4. Causation: Article  15.1 and 15.5 SCMA  / Article  3.1 and 3.5 ADA  
66. Consequential violations.  The EU demonstrated that the US 's violations of Articles  15.2 
SCMA / 3.2 ADA and 15.4 SCMA / 3.4 ADA resulted in consequential violations of Articles  15.5 SCMA 
/ 3.5 ADA.  
67. The EU also explained that decreasing  Spanish imports that have no negative effe ct on 
domestic prices cannot cause injury.  
68. Failure to assess causation for the industry as a whole.  The determinations show - and 
the US expressly acknowledged - that it focused its causation analysis on the retail channel and WT/DS577/R/Add.1  
 
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  hence the USITC did not c arry out a WTO -consistent segmential causation assessment for all industry 
parts in like manner.  
69. Failure to separate and distinguish other factors.  The EU demonstrated that it was the 
decline in US consumption rather than decreasing Spanish imports tha t caused injury. The EU  also 
demonstrated that it was massively increasing low priced non -subject imports rather than decreasing 
Spanish imports that caused injury. The determinations also expressly stated that non -subject 
imports "captured market share fr om the domestic industry " while the determinations state – and 
the US expressly acknowledges – that Spanish imports did not capture market share. Since the US 
case is built on loss of market share, its non -attribution analysis is evidently flawed. And once  again 
the USITC 's non -attribution assessment is limited to the retail channel rather than the industry as a 
whole.  
IV. CLAIMS CONCERNING GUADALQUIVIR 'S SUBSIDY RATE 
1. Factual Background  
70. The USDOC addressed a questionnaire to the three mandatory respondents on 4  August  2017 
on their sources of raw olives. Properly understood, that questionnaire requested the 
three  companies to submit the volume of all raw olives purchased by them, and not only (as the US 
is arguing in the present dispute ) only the volume of such raw olives which are processed into subject 
merchandise (ripe olives).  
71. This interpretation of the 4  August  2017 questionnaire is confirmed by further documents – 
and in particular a USDOC memorandum of 27  September  2017. While  the US argue that the 
27 September  2017 memorandum was a distinct, second request for information, this interpretation 
cannot be reconciled with the evidentiary record of the case.  
72. In its final determination of 11  June 2018, USDOC employed a calculati on methodology which 
differed from the one set forth in the preliminary determination. This new methodology made 
reference to the volume of such raw olives which are processed into ripe olives. In applying this 
methodology, USDOC used Guadalquivir 's replie s to the 4  August  2017 questionnaire, stating that 
USDOC had requested the volume of such raw olives which are processed into ripe olives. As 
Guadalquivir 's reply was not so limited – based on its understanding of that questionnaire – the 
subsidy rate calc ulated for Guadalquivir was higher than it would have been had only the volume of 
such raw olives which are processed into ripe olives been used in the calculation.  
2. The EU 's Claims  
(1) Violation of Article  VI:3 of the  GATT  1994, and of Articles  10, 19.1 , 19.3, 19.4 and 32.1 
of the SCM  Agreement  
73. The products covered by the investigation and the determination of the USDOC are (only) ripe 
olives. The methodology adopted by the investigating authority in its final determination reflects this 
limitation t o the specific subject merchandise.  
74. In the case of Guadalquivir, the investigating authority used Guadalquivir 's overall purchase 
of all raw olives for the calculation of the final subsidy amount for that respondent which was then 
allocated to the turn over of ripe olives only. As those purchases are higher than only Guadalquivir 's 
purchases of raw olives processed into ripe olives, this approach of the investigating authority leads 
to a determination of the subsidies purportedly received by Guadalquivir  which is too high and 
therefore to a countervailing duty which is too high as well. Both the amount of subsidy determined 
in this manner and therefore the countervailing duty is therefore excessive and inappropriate and 
inconsistent with the aforementione d disciplines of the GATT 1994 and the SCM Agreement . 
75. The US argues that the 4  August  2017 questionnaire should properly be understood as having 
requested the volume of only such raw olives which are processed into ripe olives. This reading 
cannot be s ustained on the basis of the evidentiary record before USDOC and now before the Panel.  WT/DS577/R/Add.1  
 
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  (2) Violation of Article  12.1 of the SCM  Agreement  
76. USDOC 's procedure was also inconsistent with Article  12.1 of the SCM Agreement , as 
Guadalquivir was never given appropriate notice of the information required (i.e. the volume of only 
such raw olives which are processed into ripe olives).  
(3) Violation of Article  12.8 of the SCM  Agreement  
77. USDOC clearly regarded the volume of such raw olives which are proce ssed into ripe olives as 
"essential information " within the meaning of Article  12.8 of the SCM Agreement . It is however 
apparent from the record that USDOC did not make available to Guadalquivir the fact that it was 
going to use the volume of olives processed into ripe olives in its determination of the amount of 
subsidisation before making its final determination. The US ' argument that the agenda for the 
verification visit represent the information on the "essential information " within the meaning of  
Article  12.8 of the SCM Agreement  is unpersuasive.  
(4) Violation concerning the "all others" rate  
78. The incorrect determination of Guadalquivir 's subsidy and counterveiling duty rate leads to a 
consequential incorrect determination of the "all others " rate. 
 WT/DS577/R/Add.1  
 
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  ANNEX B -2 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF THE UNITED STATES  
EXECUTIVE SUMMARY OF THE U.S.  FIRST WRITTEN SUBMISSION  
I. THE USDOC 'S DE JURE SPECIFICITY DETERMINATION WAS CONSISTENT WITH THE SCM AGREEMENT  
1. The USDO C's examination revealed that, for purposes of countervailable subsidies, the 
eligibility criteria for subsidies conferred to olive growers under the BPS Programs  remained linked 
to production of olives. Thus, the successor BPS Programs  were specific to "an enterprise or industry 
or group of enterprises or industries" within the meaning of Article  2.1. In particular, the USDOC 's 
finding reflects that access to benefits under the BPS Programs , and the predecessor SPS  Program, 
was based on  the benefits received under prior programs that were specific to olive producers. The 
EU's claims to the contrary discount the explicit link to olive production under the Oils and Fats 
Program and mischaracterize the USDOC 's examination of that link.  
A. The USDOC Examined the BPS Programs'  Conditions of Eligibility, Consistent 
with Articles  2.1, 2.1(a), and 2.4 of the SCM Agreement  
2. The USDOC 's finding that the BPS Programs  (and antecedent SPS  Program) were de jure 
specific was based upon the eligibility  conditions under the Oils and Fats Program, which were limited 
to olive growers, and incorporated into the BPS Programs  as a matter of law. That the EU developed 
successive subsidy programs with different names and modified methodologies did not alter the  fact 
that the subsidies conferred under the Oils and Fats Program – and the criteria necessary to access 
those subsidies – remained at the heart of the eligibility criteria for the successive programs (i.e., 
the SPS  Program and BPS Programs ). 
3. At the ou tset of its analysis, the USDOC identified that the availability of subsidies under the 
BPS Programs  depended, at least in part, upon availability under its two predecessor programs (i.e., 
the Oils and Fats Program and SPS  Program). That is because, rather  than replace the Oils and Fats 
Program, the EU carried forward subsidies conferred under the program into later iterations of the 
EU's CAP subsidies regime. Accordingly, to evaluate the BPS Programs , including the conditions 
governing eligibility for subs idies, the USDOC analyzed how these predecessor programs remained 
linked operationally to the BPS Programs . Although the Oils and Fats Program ceased benefiting 
olive growers after 2003, because it provided annual grant payments only to producers of oilsee d 
crops (e.g., olives), the eligibility criteria to access the payments would render the program de jure 
specific. The USDOC noted that, when Spain implemented the SPS  Program, aid provided to farmers 
was converted into "entitlements", which are rights to receive payments that were linked to land 
area and "decoupled" from production. However, the SPS  Program conferred grants to recipients 
based upon a "reference period" for olives and olive oil – from 1999 through 2002 – the period 
during which the Oils and  Fats Program operated and made subsidies available to olive growers 
based upon olive production (i.e., on a de jure-specific basis).  
4. To reach its determination, the USDOC analyzed the EU and Spain 's questionnaire responses, 
the relevant EU regulations,  and the Royal Decrees implementing the assistance programs in Spain. 
The USDOC identified the express limitation to olive producers in the Oils and Fats Program and 
explained how that limitation carried through to the SPS  Program and BPS Programs . The USD OC 
analyzed Spain 's implementation of the BPS Programs  and determined that, because the benefits 
provided under the BPS Programs  depend on the earlier subsidy programs that were de jure specific 
(i.e., the Oils and Fats Program and SPS  Program), the BPS Programs  were also de jure specific. To 
arrive at the determination, the USDOC analyzed the EU and Spain 's questionnaire responses, the 
relevant EU regulations, and the Royal Decrees impl ementing the assistance programs in Spain. The 
USDOC identified the express limitation to olive producers in the Oils and Fats Program and explained 
how that limitation carried through to the SPS  Program and BPS Programs . In this way, the USDOC 
traced the operational link between eligibility for subsidies under the Oils and Fats Program and the 
subsidies available under the successor SPS  Program and BPS Programs . WT/DS577/R/Add.1  
 
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  5. The EU 's argument that the USDOC did not consider eligibility criteria and instead focused o n 
the determination of the amount of subsidy fails to consider that, because of the design of these 
programs, the determination of subsidies available to certain enterprises under the BPS Programs  
depended on earlier eligibility criteria. The EU does not d ispute that olive production was among the 
eligibility criteria under the Oils and Fats Program. In its final determination, the USDOC identified 
the limitations on eligibility under the Oils and Fats Program that favored olive production, stating 
that "bo th olive oil and table olives were specifically identified as products eligible to receive 
production aid under this program, and the payments provided during this period were based on 
whether the olives were used to produce olive oil or table olives" . The USDOC further explained how 
the SPS Program  and BPS Programs'  incorporation of this element of the Oils and Fats Program was 
positive evidence that those programs were also de jure specific. Specifically, under the 
SPS Program , "the amount of each farmer 's payment was calculated as a percentage of the average 
annual grant payments previously provided over a reference period" . As the USDOC observed,"[i]n 
the case of olives and olive oil, this reference period was from 1999 through 2002, when the Oils 
and Fa ts Program was in operation" . 
6. The EU similarly argues that, in failing to identify any explicit BPS eligibility limitations, the 
USDOC ignored record evidence concerning eligibility conditions. The USDOC 's final determination 
refutes this characterizati on. Clearly, the SPS Program  and BPS Programs  do not restate the entirety 
of the laws and regulations pursuant to which the Oils and Fats Program was implemented. Instead, 
the SPS Program  and BPS Programs  incorporate the production -based reference under th at 
predecessor program, which they used to determine subsidy payment eligibility. For the 
SPS Program , the amount of each farmer 's payment was based on the assistance received during 
the reference period when the Oils and Fats Program was in effect. For th e BPS Programs , the value 
of each farmer 's entitlement is related to the assistance received under the SPS Program . 
7. Furthermore, the EU is incorrect to the extent that it is arguing that under Article  2.1(a) an 
explicit limitation cannot include a refer ence to another legal instrument. The EU 's understanding 
runs counter to the text, which contains no such restriction on investigating authorities, and would 
invent a loophole for subsidy programs that favor certain enterprises based on explicit eligibilit y 
limitations in earlier or separate programs. Here, the USDOC identified that the reference to the 
production -based Oils and Fats Program to determine eligibility for assistance under the 
SPS Program  and BPS Programs  constituted positive evidence that the  SPS Program  and 
BPS Programs  were also de jure specific.  
B. The EU 's Argument That the USDOC 's De Jure Specificity Determination Was 
Inconsistent with Articles  2.1, 2.1(a), and 2.4, of the SCM Agreement  Because 
the BPS Program Is "Decoupled" Is Meritless  
8. The EU argues that the SPS Program  and BPS Programs  cannot retain the de jure specificity 
of the Oils and Fats Program because olive production does not determine eligibility for grant 
payments under the SPS Program  and BPS Programs . As demonstrated below, the EU 's arguments 
(i) are not responsive to the USDOC 's analysis and determination of de jure specificity and (ii) are 
at odds with the plain language of Article  2 of the SCM Agreement . 
9. First, a component of the subsidy payments under the SPS Program  and BPS Programs , even 
for the new and purportedly "decoupled" BPS Programs , is explicitly based upon historical olive 
production. In addition, olives are classified as a "permanent crop" under the BPS Programs . 
Therefore, a limitation based on the favorable treatment of agricultural producers with historical 
olive production directs benefits to an identifiable group of enterprises for purposes of a de jure 
specificity finding under Article  2.1. Moreov er, Article  2.1(a) of the SCM Agreement  directs that to 
find de jure specificity, the investigating authority must find that the relevant legislation or granting 
authority explicitly limits access to a subsidy to certain enterprises. The SPS Program  and 
BPS Programs  limit access based on historical olive production and ther efore that limitation explicitly 
restricts access to certain enterprises based on past olive production.  
10. In addition, according to the EU, the USDOC 's finding of de jure specificity must be wrong 
because "eligibility to and the amount of such payments"  are based on a method "explicitly admitted 
under the [Agreement on Agriculture ("AoA")]". The EU 's argument fails because it conflicts with the 
texts of the AoA and SCM Agreement s in at least the following two ways. First, as the USDOC 
explained in its fi nal determination, Annex 2 to the AoA no longer pertains to countervailing duty 
investigations under the SCM Agreement . Whether a subsidy program qualifies as "decoupled" WT/DS577/R/Add.1  
 
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  income support under Annex 2 of the AA has no bearing on whether under the SCM Agreem ent a 
subsidy is deemed to exist. Second , the EU cites nothing in the text of either the AoA or the 
SCM Agreement  to support the proposition that, after expiry of the Peace Clause, Annex 2 remained 
relevant to the SCM Agreement . Instead, the EU simply asse rts that "decoupled" programs achieve 
policy objectives such as "stability to farmers income, and preserv[ing] social structures" while 
avoiding production -based incentives. Therefore, the EU 's claims under Articles  2.1, 2.1(a) and 2.4 
regarding the "decou pled" nature of the BPS Program must fail.  
C. The EU 's Claim That the USDOC Breached Articles  2.1, 2.1(a), and 2.4 of the 
SCM Agreement  Because the USDOC Grounded Its Analysis on Eligibility 
Conditions of a Previous Subsidy Program Has No Merit  
11. The EU argues that the USDOC breached Articles  2.1, 2.1(a), and 2.4 of the SCM Agreement  
by supposedly analyzing the Oils and Fats Program to the exclusion of the subsidy programs actually 
in force during the period of investigation – the BPS Programs . As explain ed below, the USDOC 
thoroughly explained how the eligibility conditions for the Oils and Fats Program, and its de jure 
specificity based upon olive production, carried forward into the SPS Program  and the BPS Programs . 
12. Although it is true that the USDO C considered the express link between access to subsidies 
under the BPS Programs  and access under its predecessor programs, that analysis supported (rather 
than supplanted) the USDOC 's de jure specificity determination regarding the BPS Programs . The 
USDOC  did not examine the BPS Programs  in isolation given the programs ' "reference to the 
operations of its two predecessor programs" (i.e., the Oils and Fats Program and SPS Program ). The 
USDOC found that the specificity inherent in the earlier programs (namely, the Oils and Fats 
Program), forms a part of the BPS Programs  and makes the BPS Programs  specific, as a matter of 
law, in themselves . In fact, the USDOC based its de jure specificity finding for the BPS Programs  on 
the programs ' eligibility criteria after evaluating how Spain elected to administer those programs.  
13. The EU further asserts that, because entitlements could have been bought, rented, or 
inherited, a simple correlation between what a farmer received under the Oils and Fats Program and 
the SPS Program  cannot be taken for granted. These arguments, however, do  not undermine the 
USDOC 's conclusion that the SPS Program  was de jure specific in light of the reference to the 
predecessor Oils and Fats Program. Even though other factors contributed to the calculation of the 
amount of support under the SPS Program , it is nevertheless the case that the amount of support 
was related to the support received under the de jure specific Oils and Fats Program.  
D. The EU 's Claim that the Eligibility Conditions of the BPS Program Satisfy 
Article  2.1(b) of the SCM Agreement  and T herefore Prevent a Finding of 
De Jure Specificity Must Fail  
14. The operational link to the Oils and Fats Program meant that (i) "eligibility for" subsidies under 
the programs was limited based upon production by past olive producers and (ii) "the amount o f" 
subsidies conferred to olive growers continued to be calculated based on the olive growers ' prior 
production -based subsidies. The SPS Program  and BPS Programs  did not satisfy the Article  2.1(b) 
criteria for at least the following two reasons.  
15. First, as explained in greater detail above, "eligibility for" subsidies under the SPS Program  
and BPS Programs  is based on assistance under the Oils and Fats Program, which on its face favored 
olive growers. Contrary to the EU 's argument, it demonstrably is not  the case that the criteria and 
conditions "are the same regardless of the type of agricultural activity performed by each farmer" . 
It cannot be the case that the SPS Program  and BPS Programs  do not favor  certain enterprises over 
others when the assistance under these programs is based on assistance under the Oils and Fats 
Program, which explicitly favored olive growers. As the USDOC explained, the assistance for which 
a farmer is eligible depends on a pro gram which favored a type of agricultural activity – the Oils and 
Fats Program.  
16. Second, even if "eligibility for" SPS Program  and BPS  Program subsidies were based on 
objective criteria and conditions (which is not the case), Article  2.1(b) still would not be satisfied 
because the "amount of" subsidies nevertheless inherently favors olive growers. As the USDOC 
detailed in its preliminary and final determinations, "the amount of assistance provided to olive 
farmers and the methodology for determining it u nder [the Oils and Fats Program] forms the WT/DS577/R/Add.1  
 
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  foundation for determining the amount assistance provided to olive farmers under the successor 
programs ..." . In other words, because the SPS Program  and BPS Programs  continue to calculate 
the subsidies conferred to olive growers at least in part based on what olive growers produced, the 
"amount of" subsidies conferred necessarily is not based on objective criteria or conditions. Indeed, 
elsewhere in its first written submission, the EU appears to concede this poin t. The EU observes: "It 
is true that the amount of such assistance depends to a certain extent[] on what farmers received 
in a past period for the different crops they grew, including olives."  
E. The USDOC 's De Jure Specificity Finding Is Based on Positive  Evidence and 
Supported by Reasoned and Adequate Explanations, Consistent with the 
SCM Agreement  
17. Rather than presenting any further legal basis for the panel 's review of USDOC 's findings, 
through this claim, the EU seeks de novo review of USDOC 's factu al findings by the Panel, 
inconsistent with the Panel 's standard of review. A Panel must not conduct a de novo evidentiary 
review, but instead should "bear in mind its role as reviewer of agency action" . In addition, as shown 
below, the EU 's claims various ly mischaracterize or take out of the context the USDOC 's analysis of 
the de jure specificity of the SPS Program  and BPS Programs . Most of these arguments stem from 
the EU 's erroneous position that, despite the record evidence, the USDOC should have discou nted 
the role of the Oils and Fats Program in the BPS Programs . 
18. Decoupling eligibility for benefits, in this case in the form of entitlements, from production 
does not in itself remove de jure specificity, as the EU argues. Nor does it remove de jure specificity 
if the entitlements are based upon another proxy for production and, thus, are limited to an 
identifiable group of enterprises. Absent a legal requirement to continue producing olives, t he EU 
posits, the USDOC 's finding regarding the relationship between the BPS Programs  and Oils and Fats 
program is incorrect. However, as explained above, even if the SPS Program  and BPS Programs  limit 
access based on historical olive production, it is nev ertheless true that such a limitation explicitly 
limits access to certain enterprises based on the production of past olive producers. Such a limitation 
is an explicit limitation on access inherent in the SPS Program  and BPS Programs . Because the 
USDOC has  supported this explicit limitation based on positive evidence, it has supported its 
determination in accordance with Article  2.4 of the SCM Agreement . 
19. The USDOC explained its understanding that the "convergence factor results in adjustments 
to individ ual payments to bring them closer  to an average over time  ...". The USDOC thus understood 
that the convergence factor did not completely eliminate deviations from the national, or even 
regional, average for the period of investigation. The Member States ha d a choice when 
implementing the BPS Programs  between using a flat rate multiplied by the number of eligible 
hectares or using the convergence step that gradually reduced the disparity in income grant 
amounts. Spain chose to implement a convergence factor that would not fully align the assistance 
under the BPS Programs . That choice further supported the USDOC 's conclusion that, "while any 
adjustments resulting from convergence may ultimately affect the final amount of assistance, the 
grant amounts awarded t o farmers under the BPS program are still based on, and thus retain, the 
de jure specificity of prior programs  ...". 
II. THE EU'S AS SUCH CHALLENGE TO SECTION  771B  OF THE TARIFF ACT OF 1930  AND ITS APPLICATION 
IN THE UNDERLYING INVESTIGATION FAILS BECAUSE THE EU MISUNDERSTANDS THE RELEVANT 
WTO  PROVISIONS AS WELL AS THE U.S.  STATUTE  
A. The EU Errs in Claiming that the GATT 1994 and the SCM Agreement  Require a 
Particular Methodology for Conducting a "Pass -Through" Analysis  
20. The EU 's claims regarding the requirement that an investigating authority perform an analysis 
of "pass -through" must fail because they lack any legal basis in the covered agreements. The EU 's 
interpretation attempts to create specific methodological requirements from gene ral obligations in 
the GATT 1994 and the SCM Agreement . But the relevant provisions do not require a particular 
methodology for conducting an analysis of whether a subsidy to an upstream producer (or product) 
benefits a downstream product.  
21. A plain read ing of the provisions cited by the EU demonstrates that none contains any 
obligation to use a specific methodology to calculate the benefit conferred by the subsidy found to WT/DS577/R/Add.1  
 
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  exist, much less a specific "pass -through" methodology. The EU has, therefore, fai led to make out 
a breach of any of these provisions.  
22. Article  VI:3 of the GATT 1994 affirms Members ' authority to levy duties that "offset" subsidies, 
subject to the requirement that they not exceed the amount of subsidy found to exist. This provision 
also recognizes the variety of ways in which subsidies may be conferred. Members may impose 
countervailing duties to offset subsidies that are "bestowed" or "granted" either "directly or 
indirectly" . While the obligation in Article  VI:3 is related  to the de termination of a benefit, it 
presupposes that such a determination has already been made at that point of the analysis.  
23. Article  10 of the SCM Agreement  incorporates Article  VI of the GATT 1994 and requires 
Members to take all necessary steps to ensure that the imposition of a countervailing duty is in 
accordance with Article  VI of the GATT 1994 and the SCM Agreement . Similarly, Article  32.1 of the 
SCM Agreement  provides that "no specific action against a subsidy … be taken except in accordance 
with the provisions of GATT 1994". Therefore, a breach of Articles  10 and 32.1 may be established 
based on a breach of Article  VI of the GATT 1994.  
24. The EU does not provide any textual support in Article  VI:3 of the GATT 1994 or Articles  10 
or 32.1 that illustrates particular legal conditions governing how an investigating authority should 
attribute a benefit received indirectly by downstream producers. The provisions of the GATT 1994 
and the SCM Agreement  are silent on this issue. The EU seeks to fill that silence with a specific, 
methodological obligation. However, this silence cannot be so filled. Rather, "[t]he most logical 
conclusion to be drawn from this silence is that the choice ... is up to the investigating authority" 
regarding ho w a pass -through analysis should be conducted in a particular factual circumstance.  
B. Section  771B of the Tariff Act of 1930 Does Not "Automatically" "Presume" 
Pass -Through  
25. The EU argues that Section  771B "mandates an approach by the investigating aut hority which 
excludes the carrying out of a pass -through analysis" and which irrebuttably presumes pass -through 
for processed agricultural products. It further claims that Section  771B "provides for an attribution 
of benefit in the form of a non -rebuttable  presumption of pass -through that is inconsistent with 
the GATT  1994 and the SCM Agreement ". The EU 's claims are in error both because they rest on a 
faulty legal theory, and because they reflect a misunderstanding and misrepresentation of the U.S. 
law. 
26. Section  771B of the Act address the calculation of countervailable subsidies on certain 
processed agricultural products and directs the USDOC to employ a step -by-step analysis for 
agricultural products to determine whether and to what extent a benefit pr ovided to the upstream 
raw agricultural product can be attributed to the downstream processed agricultural product. It 
contains a set of "cumulative conditions" that must be fulfilled in order for the USDOC to attribute 
the benefit received by raw agricult ural product producers to downstream processed products. In 
this regard, the statute provides a basis to make a finding attributing benefit to a downstream 
product, in the way that the "pass -through" concept has been understood. These cumulative 
conditions  provide utility to the USDOC by making available a remedy in certain distinct 
circumstances that otherwise would not be addressed were it confined to the "price differentiation" 
test insisted upon by the EU.  
27. The mechanism under Section  771B recognizes  the economic realities of trade in raw 
agricultural products and processed downstream products and provides for USDOC to conduct an 
analysis where certain market conditions exist – namely, (1) the demand for the prior stage product 
is substantially depend ent on the demand for the latter stage product; and (2) the processing 
operation adds only limited value to the raw commodity.  
C. The USDOC Applied Section  771B to the Facts on the Record, and Therefore Did 
Not Impermissibly Presume a Benefit to Ripe Olive  Producers  
28. The EU argues that an investigating authority may not presume that a subsidy provided to 
producers of an upstream product automatically benefits unrelated producers of downstream 
products. Rather, an investigating authority must "demonstrat[ e] that the benefit has passed 
through to the processed product and thus benefits it indirectly" . WT/DS577/R/Add.1  
 
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  29. Section  771B sets out factual and economic circumstances that the USDOC must determine 
are present in order to attribute subsidies initially provided to u pstream agricultural goods to 
downstream products. Specifically, the USDOC must find that (1) the demand for the prior stage 
product is substantially dependent on the demand for the latter stage product; and (2) the 
processing operation adds only limited v alue to the raw commodity. The USDOC cannot presume 
that either of these two factors exists in the abstract, but rather, must make findings based on a 
reasoned analysis supported by the record evidence.  
30. Therefore as a factual matter, the EU errs in ass erting that the USDOC "automatically" 
"presumes" that a benefit received by an upstream producer can be attributed to a producer of a 
downstream product. Further, as a legal matter, the EU provides no basis in the text supporting its 
supposition that the  GATT 1994 and the SCM Agreement  provide a particular test for whether an 
indirect subsidy exists and whether and to what extent a subsidy to an upstream producer confers a 
benefit to a downstream producer.  
31. The USDOC used the methodology in Section  771B to determine whether the benefit 
calculated with respect to the upstream product – raw olives – was provided to the production of 
the processed product – ripe olives. The finding by the USDOC was one that an unbiased and 
objective investigatin g authority could have reached.  
32. As a result of the USDOC 's investigation, it found that both prongs of Section  771B were 
satisfied. Having satisfied both prongs of Section  771B, the USDOC determined that the subsidy 
provided to olive growers bestowed a  benefit to ripe olive producers. The Panel should therefore 
reject the EU 's claims that the USDOC "presumed" a benefit to ripe olive producers in the underlying 
investigation.  
III. THE USITC 'S INJURY ANALYSIS WAS CONSISTENT WITH ARTICLE  15 OF THE SCM AGREEMENT  AND 
ARTICLE  3 OF THE ANTI-DUMPING  AGREEMENT  
A. The EU Has Failed to Make a Prima Facie  Case that the USITC 's Analysis of 
Volume Was Inconsistent with Articles  15.1 and 15.2 of the ASCM and 
Articles  3.1 and 3.2 of the ADA  
33. The EU 's basic theory is that the USITC improperly engaged in an analysis of only one segment 
of the domestic industry rather than the domestic industry "as a whole". In particular, the EU argues 
that the USITC was required, pursuant to Articles  15.1 and 15.2 of the ASCM and Artic les 3.1 and  3.2 
of the ADA, to conduct a "volume effect" analysis at the level of the domestic industry as a whole. 
However, the EU 's claim is fundamentally misdirected, as neither Article  15.2 of the SCM Agreement  
nor Article  3.2 of the Anti -Dumping  Agree ment require the consideration of volume " effects ", nor do 
Articles  15.1 and 3.1 provide any additional support for this contention.  
34. The EU further contends that the USITC 's segmentation of the domestic industry represents a 
"partial" analysis, and is "entirely meaningless and unsuited for a volume effect analysis". The EU 
also asserts that the USITC only evaluated the retail segment and ignored the other segments and 
the ov erall market, where subject import volumes declined, and extended its conclusions concerning 
subject import volume in the retail segment to these other segments and the overall market. The  EU 
is wrong as a factual matter.  
35. The EU 's position that the USI TC's volume analysis was inconsistent with Articles  15.1 
and 15.2 of the ASCM and Articles  3.1 and 3.2 of the ADA as it was not based on positive evidence 
and an objective examination, but rather was "arbitrary" and based on "meaningless" evidence has 
no basis in the text of the ASCM or the ADA.  
36. Articles  15.1 and 3.1 are "overarching" provisions that set forth "a Member 's fundamental, 
substantive obligation" with respect to injury determinations and "informs the more detailed 
obligations in" the succeed ing paragraphs. These include the obligations to consider whether there 
has been a significant increase in the volume of subsidized and/or dumped imports. However, neither 
Article  15.1 nor Article  3.1 articulates a requirement for an investigating authorit y to conduct a 
volume analysis for the domestic industry "as a whole" . WT/DS577/R/Add.1  
 
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  37. The EU also errs in arguing that the USITC 's volume analysis was inconsistent with Article  15.2 
of the ASCM and 3.2 of the ADA as a result of its finding that subject import volume was significant 
in the absence of any absolute or relative increases in volume. The EU 's argument is unsupported 
by the texts of those provisions. A rigid requirement to find an increase in subject import volume 
would render meaningless the last sentence o f Article  15.2, which states that "[n]o one or several 
of these factors [concerning volume or price effects] can necessarily give decisive guidance" . By 
their terms, neither Article  15.2 nor Article  3.2 condition the imposition of countervailing or 
antidum ping measures, respectively, on a finding of a significant increase in subject import volume.  
38. Articles  15.2 of the ASCM and 3.2 of the ADA require an investigating authority to "consider 
whether there has been a significant increase" in unfairly traded  imports. The text of those provisions 
do not include a requirement that there be increased imports as a prerequisite to an affirmative 
injury determination. Thus, notwithstanding the EU 's attempt to expand this obligation to require a 
determination  that t here was a significant increase of subsidized/dumped imports, the Agreements 
do not require an investigating authority to find an increase in subject import volume, let alone a 
significant increase.  
39. The obligation to "consider" in Articles  15.2 and 3.2  is not tantamount to a requirement to 
make a definitive determination on the matter under consideration. The obligation for investigating 
authorities to "consider" whether there has been a significant increase in subsidized or dumped 
imports for purposes of Article  15.2 of the ASCM and Article  3.2 of the ADA is distinct from other 
obligations in Articles  15 and 3, such as that of "demonstrat[ing]" a causal connection between 
subject imports and injury to the domestic industry in Articles  15.5 and 3.5. It f ollows that an 
investigating authority 's obligation to "consider" whether there has been a significant increase in 
subsidized or dumped imports requires authorities to "take into account" whether subject import 
volume increased in absolute terms or relativ e to domestic production or consumption. This 
obligation does not, however, require an authority to make a definitive determination that subject 
import volume has increased pursuant to any of these three metrics. Consequently, an injury 
analysis may be con sistent with Articles  15.2 and 3.2 even in the absence of such a finding.  
40. In the Olives  investigations, the USITC considered the volume of subject imports in a manner 
consistent with Articles  15.2 and 3.2. The USITC reasonably concluded that subject im ports had a 
significant presence in the U.S. market on an absolute and relative basis, and increased their 
presence in the retail segment, which enabled them to capture market share directly at the expense 
of the domestic industry in that segment.  
41. The USITC found the volume of subject imports during the POI to be significant on several 
bases.  One basis was on an absolute level; the USITC acknowledged that subject import volume 
fluctuated on an annual basis over the course of the POI. The USITC further f ound the volume of 
subject imports to be significant relative to apparent U.S. consumption since subject imports ' market 
share remained at significant levels during the POI; again, it acknowledged that subject import 
market penetration fluctuated annually. The USITC also found that the ratio of subject imports to 
U.S. production was significant.  
B. The EU Has Failed to Make a Prima Facie  Case that the USITC 's Analysis of Price 
Effects Was Inconsistent with Articles  15.1 and 15.2 of the ASCM and 
Articles  3.1 and 3.2 of the ADA  
42. The USITC properly considered whether prices of unfairly traded imports significantly undercut 
those of the domestic like product, and the EU 's argument that the USITC erred in finding price 
effects in the absence of pri ce depression or suppression has no basis in the SCM Agreement  or the 
Anti-Dumping  Agreement. The EU argues that the USITC 's finding of no price depression or 
suppression in the underlying investigations necessarily means that the USITC could not have 
properly determined that subject imports had adverse price effects. The EU contends that in the 
absence of price depression or suppression an investigating authority may not make a finding of 
adverse price effects through undercutting/underselling. However, th e EU's argument is based on a 
clear misreading of the cited provisions and a misinterpretation of the factors an authority is required 
to consider with respect to its price effects analysis.  
43. Articles  15.2 and 3.2 explicitly recognize three alternative ways in which subject imports can 
have an "effect" on prices: through undercutting, "or" through price depression, "or" through price WT/DS577/R/Add.1  
 
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  suppression. While underselling can lead to price depression or suppre ssion, the Agreements 
recognize that significant undercutting in and of itself may constitute a price effect. The EU 's claim 
would have the effect of reading the references to "or" in the second sentences of Articles  15.2 
and 3.2 out of these provisions.  
44. Furthermore, the EU 's argument that the USITC 's analysis of price effects is flawed. The EU 
argues that the USITC 's price effects analysis, which it allegedly failed to carry out for the domestic 
industry as a whole, was "meaningless and superfluous" , and inconsistent with Articles  15.1 and 3.1 
and Articles  15.2 and 3.2. However, neither the ASCM nor the ADA restricts an investigating 
authority from focusing its analysis on a particular segment of the domestic market. Here, the USITC 
determined that reta il segment was the primary segment in which domestically produced and subject 
imported ripe olives competed directly for sales in the U.S. market.  
45. Similar to its arguments concerning the USITC 's volume analysis, the EU inaccurately contends 
that the US ITC examined the retail segment of the market to the exclusion of the other two segments 
and the overall market in its analysis of price effects. Again, the EU variously argues that the USITC 
ignored the other segments and the overall market and extended i ts conclusions concerning subject 
import price underselling in the retail segment to these other segments and the overall market.  
46. The USITC 's findings on significant underselling were not limited to a particular market 
segment. Instead, it was based on  the overall  data on pricing in the record – including aggregated 
data concerning instances and quantities of underselling in all pricing products, which reflected ripe 
olives sold in multiple channels of distribution, as well as data concerning confirmed lost sales from 
purchasers.  
C. The EU 's Claims under Article  15.4 of the ASCM and Article  3.4 of the ADA Also 
Fail 
47. The United States noted in its preliminary ruling request that the EU failed to include its claims 
concerning Article  15.4 of the ASCM an d Article  3.4 of the ADA in its panel request, and the Panel 
should rule that these claims are outside its terms of reference. Nevertheless, the EU has failed to 
show any breach of Articles  15.4 and 3.4.  
48. The EU 's arguments that the USITC 's analysis of impact is flawed because the USITC arbitrarily 
divided the domestic industry into different segments are unsupported by the ASCM and the ADA. 
As with its arguments concerning volume and price effects, the EU wrongly contends that the USITC 
erred in focusin g on the retail segment of the market in its analysis of impact. Relatedly, the EU 
argues that the lack of "volume effects" and price effects for subject imports at the level of the 
industry as a whole precluded any finding that subject imports had an impa ct on the domestic 
industry. The USITC reasonably focused aspects of its analysis on the retail segment and properly 
explained why it did so. Specifically, the retail segment was the primary segment in which 
domestically produced and subject imported ripe olives competed directly for sales in the U.S. 
market.  
49. The EU 's arguments that the USITC ignored the rest of the market and the overall market are 
factually incorrect for the same reasons they fail with respect to the USITC 's volume and price 
analysis.  Article  15.4 of the SCM Agreement  states that, in examining the impact of subsidized 
imports on the domestic industry, an investigating authority "shall include an evaluation of all 
relevant economic factors and indices having a bearing on the state of th e industry ". Article  15.4 
lists numerous factors, but states that this list "is not exhaustive, nor can one or several of these 
factors necessarily give decisive guidance ". 
50. Therefore, an investigating authority "must consider, in light of the interacti on among injury 
indicators and the explanations given" whether a domestic industry is injured. Further, an 
investigating authority 's consideration of these criteria must be based on an "objective examination" 
of "positive evidence" in accordance with Artic le 15.1. In assessing the impact of the subject imports 
on the domestic industry, the USITC considered all of the relevant data. It found that production 
factors, which it analyzed on an industry -wide basis, were mixed. It observed, however, that 
domestic producers ' inventories grew as they lost sales and market share to the lower -priced subject 
imports in the important retail sector. This inventory consisted of ripe olives that were processed WT/DS577/R/Add.1  
 
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  and packaged for sale to the retail segment and could not simply  be redirected for sale to other 
segments.  
51. In sum, in analyzing impact, the USITC considered all relevant factors and explained how it 
weighed the evidence pertaining to each of these factors. While the USITC acknowledged that not 
all trends were negat ive, it explained why subject imports had explanatory force for the industry 's 
declining output and financial performance. The EU 's claims that the USITC 's impact analysis was 
inconsistent with Articles  15.1 and 15.4 of the ASCM and Articles  3.1 and 3.4 of the ADA fail.  
D. The EU Has Failed to Show that the USITC Did Not Demonstrate a Causal Link 
between the Subject Imports and Injury to the Domestic Industry Consistent 
with Article  15.5 of the ASCM and Article  3.5 of the ADA  
52. In its analyses of volume  and price effects, the USITC found that a significant volume of 
subject imports had undersold the domestic like product and captured market share from the 
domestic industry in the retail segment of the market. It also found, in its analysis of impact, tha t 
subject imports had explanatory force for the industry 's increasing inventory, declining shipment, 
and deteriorating financial performance indicators.  
53. Upon evaluation of all relevant evidence, the USITC properly linked its volume, price effects, 
and impact analyses in making a definitive determination that subject imports caused injury to the 
domestic industry. The EU has failed to show that the causal link established by the USITC was 
inconsistent with the first two sentences of Article  15.5 of the A SCM and Article  3.5 of the ADA.  
E. The USITC 's Non -Attribution Analysis Complied with Article  15.5 of the ASCM 
and Article  3.5 of the ADA  
54. The EU argues that in conducting its causation analysis, the USITC was required to consider 
a number of factors ot her than subsidized imports that may have explained the injury to the domestic 
industry during the POI. It further argues that the USITC erroneously rejected two non -attribution 
factors: 1) decreasing consumption in the United States; and 2) non -subject im ports during the POI. 
The EU argues that the USITC made no attempt to separate and distinguish the injury caused by 
these factors. The EU is wrong as a matter of legal interpretation and as a factual matter. The USITC 
properly separated and distinguished a ny injurious effects caused by factors other than subject 
imports.  
55. The purpose of the non -attribution requirements is to ensure the existence of an un -severed 
causal link between the dumped or subsidized imports and the injury to the domestic industry.  The 
non-attribution requirement ensures that dumped and subsidized imports are causing material injury 
to the domestic industry, and that the injury attributed to subject imports is not in fact caused by 
other known factors. Neither Article  3.5 of the ADA  nor Article  15.5 of the ASCM require investigating 
authorities to utilize any particular methodology in examining other known causal factors.  
56. In the Olives  investigations, the USITC assured that it did not attribute injury allegedly caused 
by other fa ctors to the subject imports. Moreover, it provided "a satisfactory explanation of the 
nature and extent of the injurious effects of the other factors, as distinguished from the injurious 
effects of the dumped imports ". The USITC fully explained why the re latively modest decline in 
consumption did not correspond with reported declines in the industry 's shipments and financial 
performance indicators and considered and addressed the role of nonsubject imports.  
57. The EU 's arguments concerning non -attribution  largely criticize the USITC majority for failing 
to adopt the rationale of the dissent. Presenting an alternative analysis of the facts cannot establish 
that the findings made by the USITC majority – the sole findings before the Panel do not reflect an 
objective examination or are unsupported by positive evidence. The EU 's reliance on the dissent 's 
alternative weighing of the facts, and on its own alternative factual conclusions, does not establish 
a breach of Articles  15.1 and 15.5 of the ASCM and Article s 3.1 and 3.5 of the ADA.  WT/DS577/R/Add.1  
 
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  IV. THE USDOC 'S FINAL COUNTERVAILING DUTY RATE FOR GUADALQUIVIR IS NOT INCONSISTENT WITH 
ARTICLE  VI:3  OF THE GATT  1994  AND ARTICLES  10, 12.1,  12.8,  19.1,  19.3,  19.4,  AND 32.1  OF 
THE SCM AGREEMENT  
A. USDOC Properly Requested, and Permitted Interested Parties to Provide, 
Information on Purchases of Raw Olives Used to Produce Ripe Olives, 
Consistent with Article  12.1 of the SCM Agreement  
58. The EU argues that the USDOC "never gave 'notice ' within the meaning of Articl e 12.1 of the 
SCM Agreement " that the mandatory respondents (namely, Guadalquivir) were required to provide 
purchase information for raw olives that were used to produce ripe olives, even though the 
information was "key information for its case ". The facts  demonstrate otherwise.  
59. On 4 August  2017, the USDOC issued a questionnaire to each of the three mandatory 
respondents requesting information relating to their sources of raw olives that were processed into 
ripe olives. To this end, the cover page introducing the questionnaire, and explaining the reporting 
requirements, sought "information on your company 's sources of raw olives that were processed 
into ripe olives ". According to the EU, despite the language of the cover page, question 6 and the 
corresponding template "refer only to 'raw olives ', and do not contain any limitation to only such 
raw olives which are processed into subject merchandise (ripe olives)  ...," such that they could  be 
interpreted to suggest that respondents were instead to prov ide all raw olive purchases. The text of 
the questionnaire refutes the EU argument in at least two ways.  
60. First, the cover letter provided clear guidance regarding the questionnaire. Specifically, the 
cover letter established the parameters of the ensui ng questions: to obtain "information on your 
company 's sources of raw olives that were processed into ripe olives ". 
61. Second , the relevant question (i.e., question 6) directed the mandatory respondents to report 
purchases of raw olives used to produce ri pe olives. By its express terms, the question sought 
information regarding ripe olive processors ' suppliers of raw olives. Similarly, the corresponding 
template to be completed was "to include all those suppliers ". The data of a ripe olive processor 's 
raw olive suppliers by definition refers to the purchase of raw olives for processing into ripe olives.  
62. The EU argues that subsequent letters submitted by the mandatory respondents 
(18 September  2017) and the Government of Spain ( 25 September  2017) show th at the parties 
understood the scope of the information requested in the USDOC 's 4 August  2017, letter was not 
limited to raw olives processed into ripe olives. However, in the first instance, neither the mandatory 
respondents nor Spain purported to speak o n behalf of the USDOC, nor could they have, and thus 
could not have clarified the scope of the USDOC 's questionnaire for it. Second, neither letter 
pertained to the USDOC 's 4 August  2017, questionnaire requesting mandatory respondents ' 
purchase information  for raw olives processed into ripe olives. Third, the USDOC 's separate letter to 
the mandatory respondents on 27 September  2017, did not change (or purport to change) the 
meaning of the USDOC 's 4 August  2017, request.  
63. Furthermore, consistent with the questions actually asked by the USDOC, the other 
two mandatory respondents, Agro Sevilla and Angel Camacho, understood that the USDOC 's 
4 August  2017, and 27 September  2017, letters collectively requested two pieces of info rmation: (i) 
the volume of purchases of raw olives processed into ripe olives and (ii) the total volume of purchases 
of raw olives, without regard to the end product.  
B. The EU's Claims Have No Merit Because the USDOC Applied the Same 
Calculation Method to  Each Mandatory Respondent and Used Each Mandatory 
Respondent's Reported Information  
64. Similar to its claim under Article  12.1 of the SCM Agreement , the EU bases its arguments on 
an incomplete representation of the investigation record – in particular, t he questions posed by the 
USDOC and the mandatory respondent 's responses to those questions. As reflected in the relevant 
record information, any unbiased and objective investigating authority could have determined, as 
the USDOC did, that the information r eported by Guadalquivir represented its purchases of raw 
olives that were processed into ripe olives.  WT/DS577/R/Add.1  
 
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  65. In its final determination, the USDOC measured the benefit conferred from subsidies provided 
to raw olive growers "by multiplying the weighted average  per kilogram benefit by the volume of 
each respondent 's purchases of raw olives to produce subject merchandise [i.e., ripe olives], and to 
divide the resulting benefit by the sales of subject merchandise [i.e., ripe olives] ". The USDOC 
applied this method ology to each of the three mandatory respondents. Accordingly, for 
Guadalquivir 's numerator, the USDOC relied on the purchase volume that Guadalquivir reported in 
response to the USDOC 's 4 August  2017 letter because Guadalquivir 's "originally reported 
information is indicative of its raw olives purchases that were used to produce subject merchandise ". 
C. Consistent with Article  12.8 of the SCM Agreement  the USDOC Informed All 
Parties of the Essential Facts Under Consideration  
66. The USDOC disclosed the ess ential facts under consideration months before the final 
determination, thereby permitting the parties to defend their interests, which they in fact did. On at 
least three occasions before the final determination, the USDOC disclosed to the interested part ies 
(including Guadalquivir) that the essential facts under consideration included the volume of raw 
olives processed into ripe olives.  
67. First, as explained above, through its 4 August  2017 and 27 September  2017 questionnaires 
the USDOC requested the volume of purchases of both (i) raw olives that were processed into ripe 
olives and (ii) all raw olives whether or not used to produce ripe olives. Second , in February  2018, 
the USDOC notified each mandatory respondent of the agenda for USDOC 's on-site verification of 
each company 's questionnaire responses, including all information that the USDOC anticipated 
relying upon as the basis for the final determination. The verification agenda disclosed that purchase 
volumes for raw olives were essen tial facts under consideration. Third, Guadalquivir 's verification 
report, issued 22  March  2018, shows that the USDOC reviewed Guadalquivir 's purchases of raw 
olives and, more specifically, Guadalquivir 's purchases of raw olives that were processed into ri pe 
olives. In this way, the verification report was another notice to the parties that the volume of 
purchases of raw olives that were processed into ripe olives was an essential fact under 
consideration.  
68. Furthermore, because the EU has not demonstrate d the inconsistency of Guadalquivir 's final 
subsidy rate under the above provisions, the EU 's claims regarding the all -others rate also fail. As 
explained above, the countervailing duty rate calculated for Guadalquivir is not erroneous.  
U.S.  10 JUNE RESPON SES TO THE PANEL'S QUESTIONS  
Summary of U.S. Response to Panel Question 2  
69. The requirement that the granting authority or relevant legislation "explicitly limits access to 
a subsidy" does not restrict an investigating authority to one or the other of th e above criteria. T he 
plain language of Article  2.1 indicates that specificity is a general concept and that "limits access" 
under Article  2.1(a) is not limited in meaning to one particular type of eligibility.  Article  2.1(a) 
qualifies the term "access" in  two ways: (i) it must be limited "to certain enterprises" and (ii) it must 
be expressed "explicitly" by the granting authority or the relevant legislation. The text does not, 
however, prescribe a particular form that the limit on "access" must take – whether it be criteria 
that determine eligibility for the subsidy or criteria that determine eligibility for certain amounts of 
the subsidy.  
70. Nor does the use of the term "access" in Article  2.1(a) restrict an investigating authority to 
evaluating the condi tions of a subsidy program in a particular way. "Access" means the "right or 
opportunity to benefit from or use a system or service ". The "right or opportunity to benefit from or 
use" a subsidy could be determined by eligibility for that subsidy. However, limiting eligibility for 
subsidies under a program is not necessarily the only way that the "right or opportunity to benefit 
from or use" subsidies may be limited. A limit based on distinctions that differentiate the amount of 
subsidies that certain enterp rises are eligible to receive vis -à-vis other enterprises could similarly 
differentiate the right or opportunity to benefit from or use a subsidy.  
71. Articles  2.1(a) and (b) together set forth the conditions to distinguish cases where, as a matter 
of law, the granting authority discriminates in favor of certain enterprises, from cases where 
subsidies are generally available.  Clearly, a granting authority or rele vant legislation may impose WT/DS577/R/Add.1  
 
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  limitations that discriminate in favor of certain enterprises through criteria that determine eligibility 
to receive certain amounts of subsidies under the program in question. Similarly, Article  2.1(b) calls 
for "objective crit eria or conditions" – i.e., "criteria or conditions which are neutral, which do not 
favour certain enterprises over others  ...". Criteria limiting access either to threshold eligibility for 
the subsidy program itself or to certain subsidy amounts under tha t program would not be neutral 
and would favor certain enterprises over others.  
U.S.  8 SEPTEMBER RESPONSES TO THE PANEL'S QUESTIONS  
Summary of U.S. Response to Panel Question 1.c  
72. The "certain enterprises" for purposes of Article  2.1(a) were the holders  of entitlements whose 
value derived from the Oils and Fats Program. That finding is evident in the USDOC 's preliminary 
and final determinations and consistent with the finding that the SPS Program  and BPS Programs  
are specific to olive growers. The USDOC identified that (i) the Oils and Fats Program conferred 
subsidies based on historic olive production and (ii) the SPS Program  and BPS Programs  preserved 
the conditions that limited access to those subsidies as a discrete component of entitlement 
payments, whether the holders of those entitlements continued olive production or replaced that 
production.  
73. In its final determination, the USDOC encapsulated its de jure specificity finding: "the annual 
grant amounts provided under [the BPS Programs ] are direct ly related to, and continue to retain the 
de jure specificity of, the grants provided to olive growers under" the Oils and Fats Program. In its 
preceding explanations, the USDOC explained precisely how the BPS Programs  "are directly related 
to" and "contin ue to retain the de jure specificity of" olive -specific subsidies under the Oils and Fats 
Program. Specifically, the USDOC explained how the entitlement values were derived from using 
historic information (i.e., from the 1999 -2002 reference period). The re gional data used to generate 
the "basic payment entitlement" under the BPS Programs  included "the area in hectares, the types 
of crops, and the volume of production during the period 1999 to 2002 or 2000 to 2002, and the 
amount provided under the annual gr ant-to-farmer program for those same periods ". Similarly, 
under the SPS Program , "the amount of each farmer 's payment was calculated as a percentage of 
the average annual grant payments previously provided over a reference period" (i.e., 1999 -2002 
for oliv e-specific subsidies under the Oils and Fats Program).  
74. Thus, under the SPS Program  and BPS Programs , a farmer could hold an entitlement with a 
component based on historic olive production regardless of whether or if the land was later switched 
to a dif ferent use. The USDOC was clear on this point: "the amount of the payment is dependent on 
the annual activation of the entitlement, and is not dependent on the type or volume of crop 
produced ". 
EXECUTIVE SUMMARY OF THE U.S.  SECOND WRITTEN SUBMISSION  
I. THE USDOC 'S DE JURE  SPECIFICITY DETERMINATION WAS CONSISTENT WITH THE SCM AGREEMENT  
A. The EU has failed to demonstrate that certain extra -textual conditions modify 
Article  2.1(a) of the SCM Agreement  
75. In its previous submissions, the Unit ed States has explained why, contrary to the EU 's position, 
the term "limits access" does not mean only limits threshold eligibility for any amount of subsidy 
under the program . Below we address points raised by the EU in its statements at the virtual sess ion 
and its written responses after that session.  
76. First, the Panel need not reach the EU 's arguments that "continuity and consistency" compel 
the Panel to adopt the EU interpretation, because the supposed "consistent jurisprudence" on this 
issue does n ot exist. Prior dispute settlement reports have not addressed whether the meaning of 
"limits access" under Article  2.1(a) is restricted in the manner that the EU proposes. The EU relies 
on the fact that past reports have used the word "eligibility" in refe rring to the limit described in 
Article  2.1(a). In US – Large Civil Aircraft (2nd complaint) , the compliance panel used and 
emphasized the word " eligibility " to draw the distinction between whether certain enterprises have 
"access" to subsidies versus whether "they in fact receive it". The panel in US – Upland Cotton  
observed that "specificity is a general concept, and the breadth or narrowness of specificity  is not WT/DS577/R/Add.1  
 
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  susceptible to rigid quantitative definition ". The EU 's argument highlights a needless conceptual 
complication that its interpretation would create. Under the EU interpretation, investigating 
authorities (and reviewing panels) would need to determi ne whether the access limits in question 
are better categorized as eligibility or amount -based, and whether those limits are better categorized 
as at the threshold point of the program or within the program.  
77. Second , in its post -virtual session response s, the EU proposes another extra -textual 
requirement for Article  2.1(a): that "[c]ompanies that do not form part of the class of (benefit) 
recipients" correspondingly "cannot be included in the benefit analysis ". The relevant question under 
Article  2.1(a) is whether access is explicitly limited as a matter of law to certain enterprises. That 
evaluation does not involve an analysis of the amounts actually received and by whom, which is 
instead relevant to inquiries concerning de facto  specificity and the cal culation of benefit.  
78. Third, the EU has presented an incoherent response to the text -based arguments concerning 
Article  2.1(a). The EU noted that Article  2.1(a) "does not refer to amount" and "refers to limitation 
on access, period ". That is exactly the  point. Article  2.1(a) refers neither to "amount" nor to 
"eligibility" – in contrast to Article  2.1(b) – so to limit Article  2.1(a) to either term would conflict with 
the text. For the EU to establish that "limits access" under Article  2.1(a) is modified b y language 
that was not used in the provision, it must do more than refer to other language that does not 
appear under the provision.  
B. The EU has failed to demonstrate that the USDOC's determination relied on 
"coupled" production and therefore breached A rticles  2.1, 2.1(a), or 2.4 of the 
SCM Agreement  
79. In its opening statement, the EU backpedals from its earlier claims, proposing a "much more 
modest argument" that "if an investigating authority finds that a subsidy is tied or coupled to 
production" it cannot "find at the same time that the subsidy is not coupled to the production of that 
crop". In the first instance, the EU repeats its arguments that the USDOC did not establish a link 
between olive production -based subsidies under the Oils and Fats Prog ram and the limitation on 
access identified under the BPS Programs . However, it is not in dispute that only certain entitlement 
holders could access the entitlement component that was based upon subsidies conferred under the 
Oils and Fats Program (i.e., th e certain enterprises for purposes of Article  2.1(a)). The USDOC did 
not base its de jure specificity findings on whether or not subsidies under the BPS  Program are 
coupled to olive production, nor did it need to.  The EU argues that its claim is "buttressed by a 
contextual interpretation" that the BPS Programs  would qualify as "decoupled income support" under 
the Agreement on Agriculture. As the United States has explained, the concept of "decoupling" 
appears nowher e in the SCM Agreement  and is not relevant to the analysis under Article  2.1(a). The 
EU has not explained how, despite the irrelevancy of the concept of "decoupling" under 
Article  2.1(a), it nonetheless provides relevant context for that article.  
80. The E U makes a conceptually similar argument that the ability to transfer an Oils and Fats 
Program -based entitlement "severs" its relationship to the Oils and Fats Program. However, as the 
United States has explained, even where certain entitlements might have been inherited or 
transferred, this would not sever the link to the access limitation identified by USDOC in its 
determination. Under the law, only the entitlement holders could apply for and receive the subsidy 
amounts reserved for the identified certain enterprises. That entitlement holders might themselves 
transfer these rights does not alter the scope of access, and the resulting specificity, as a matter of 
law. 
C. The USDOC based its specificity analysis on the legislation that under the 
BPS Programs  limited access to certain enterprises, consistent with 
Article  2.1(a) of the SCM Agreement  
81. To evaluate the legislation pursuant to which the granting authority administered the 
BPS Programs , the USDOC considered how the BPS Programs  incorporated by refe rence the 
eligibility criteria of the two predecessor CAP Pillar I programs – the Oils and Fats Program and the 
SPS Program . The EU has offered several additional arguments, which the United States addresses 
below.  WT/DS577/R/Add.1  
 
- 74 - 
 
  82. First, the EU argues that the "allege d direct correlation" between the Oils and Fats Program 
and the BPS Programs  conflicts with the statement that the " BPS Programs  rely at least in part on 
the subsidies provided under the Oils and Fats Program ". In the first place, the salient point is that  
the BPS Programs  continued to provide subsidies using information from the reference period during 
which the Oils and Fats Program operated, which based assistance on olive production and 
necessarily limited access to certain entitlement holders, as the USDOC identified. That limitation on 
access does not depend on whether or not the BPS Programs  took into account any other factors.  
In any event, the EU 's attempt to identify an inconsistency, albeit an irrelevant one, fails.  
83. Second , in its responses to the Panel 's ques tions, the EU labels an "alternative explanation" 
the U.S. descriptions of the USDOC 's specificity finding. In essence, the EU fixates on one aspect of 
"the legislation" identified by the USDOC, the olive production -based subsidies under the Oils and 
Fats Program, to the exclusion of how that program interoperated with the succeeding SPS Program  
and BPS Programs . The United States has explained how the USDOC identified that access to a 
discrete component of the BPS Programs  – i.e., entitlement values from h istoric olive  
production -based subsidies – was limited to farmers on lands that qualified them for these 
entitlements. The United States has identified where this evaluation is evident. To the extent the 
EU's arguments address one phrase to the exclusion of the USDOC 's full findings, those arguments 
are not relevant to the dispute and should be rejected.  
II. THE EU FAILED TO ESTABLISH ITS AS SUCH CHALLENGE TO SECTION  771B  OF THE TARIFF ACT 
OF 1930  AND THAT THE USDOC  WAS REQUIRED TO CONDUCT A PRICE DIFFEREN TIATION ANALYSIS 
UNDER THE WTO  PROVISIONS THE EU CITES 
A. The EU asserts that it is not arguing that the USDOC was required to apply a 
specific methodology to determine whether a benefit has passed through, but 
the EU's own statements belie that assertion.  
84. The EU emphatically states in its second written submission that it "nowhere claims or argues 
that the provisions of the  GATT  1994 and the SCM Agreement  referenced by the US would require 
a specific methodology of price differentiation in the context of a pass -through analysis ". The EU 
further emphasizes that none of its arguments on price comparisons are premised on an 
interpretation of the provisions under which it brought claims in this dispute.  
85. Instead, the EU directs the Panel to weigh its arg uments that Section  771B does not contain 
a pass -through analysis because the two conditions therein are "inapt" to determine the existence 
and extent of the benefit conferred to downstream ripe olives processors. In the EU 's view, the only 
apt condition w ould be that the price of the input product is lower than the market price as a result 
of the subsidy, and, quoting the EU, that no "method other than a price comparison" is appropriate 
for making a determination of whether and to what extent a benefit is conferred to downstream 
processors. The legal provisions cited by the EU do not support the EU position and each of the EU 's 
claims therefore must fail.  
B. The EU has failed to show that a price comparison, as opposed to the conditions 
in Section  771B, is the only method of analysis suitable to determine whether 
and to what extent a benefit is conferred on downstream processed products  
86. While the EU appears to acknowledge that the GATT  1994 and SCM Agreement  create no 
requirements or specific co nditions, and that there are many conditions that may be considered in 
making a pass through determination, it nevertheless claims that application of the conditions 
reflected in Section  771B necessarily and in every instance breach those same provisions. The 
United  States fails to see how such statements can be reconciled with the EU 's clear position that no 
other "method other than a price comparison" is appropriate for making a determination of whether 
and to what extent a benefit is conferred to downstr eam processors.  
87. Rather than attempt to bolster its claims with an analysis of the obligations in the 
SCM Agreement , the EU provides hypothetical scenarios where a price comparison might be 
relevant. However, an investigating authority 's analysis should  be based on the distinct factual and 
economic circumstances facing the industry at issue. The EU errs in asserting that because a price 
comparison might be relevant in some circumstances, it must be required in every circumstance. WT/DS577/R/Add.1  
 
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  The EU 's reliance on thi s assertion is misguided, and does not reflect the flexibilities that exist in the 
SCM Agreement . 
88. Markets for raw agricultural commodities are characterized by "perfect competition ". Perfect 
competition exists in markets where there are many producers making virtually identical products 
for which sellers and buyers have all of the relevant information on which to base a purchase, and 
entry and exit into the market is not restricted. Producers in perfectly competitive markets are known 
as "price takers ". This market characteristic is a systematic feature of markets in the agricultural 
sector, and therefore affect the relationship between producers and processors of raw agricultural 
products. Given these underlying market conditions, under Section  771B, wh ere an agricultural 
commodity market also exhibits certain additional characteristics – i.e., where in addition to perfect 
competition there is also substantial dependence and limited value added – the benefit of a subsidy 
provided to an agricultural produ cer will be determined to have passed through to a processed 
agricultural product.  
III. THE USITC 'S INJURY ANALYSIS WAS CONSISTENT WITH ARTICLE  15 OF THE SCM AGREEMENT  AND 
ARTICLE  3 OF THE ANTI-DUMPING  AGREEMENT  
A. The USITC conducted an objective examination of the industry as a whole  
89. The central premise of the EU 's challenge to the injury determination is that the USITC 
engaged in selective "segmented" analyses. Quite simply, this is incorrect. A careful reading of the 
USITC opinion confirms that there is no factual basis for the EU 's attempt to recast it as one that 
alternated between holistic and segmented analyses. The USITC based its injury analyses on data 
pertaining to the market as a whole. These included the USITC 's analyses o f volume, price effects, 
and impact. In conducting its analyses of volume and price effects, the USITC provided information 
concerning trends in the retail channel of distribution, which is the channel of the market in which 
competition between domesticall y processed and subject ripe olives actually occurred during the 
period of investigation, and the channel on which all parties to the underlying investigations focused 
their volume and price -effects -related arguments.  
90. Even if the Panel determines that the USITC conducted an analysis that could be characterized 
as a "market segment" analysis (a term that does not appear in the relevant Agreements), the EU 
has not demonstrated that the examination and findings of the USITC in this investigation do not 
comport with the requirements of the AD and SCM Agreement s. In this regard, the United  States 
notes that the EU 's own definition of the supposed "market segment" analysis and requirements 
shifted throughout these proceedings.  
91. The EU initially argued, in i ts first written submission, that "segmented" analyses were per se 
inconsistent with Article  3 of the AD Agreement and Article  15 of the SCM Agreement . This position 
has no basis in the text of the Agreements. The EU then posited that a segmented analysis was 
per se inconsistent with the Agreements "in a situation where one single uniform and homogeneous 
product (with no further product differentiation) was found to be 'highly substitutable ' and was sold 
interchangeably in all distribution channels ". 
92. The EU later conceded that a segmented analysis of homogeneous products would not be 
precluded, provided that "there must still be conditions of competition that are different per segment 
in order for segmentation to serve as valid basis [ sic.] for the injur y analysis ". The EU presented 
hypotheticals of what it purports would constitute appropriate circumstances for a segmented 
analysis, including where there are distinctions in domestic and imported products, such as that of 
an investigating authority compar ing imported high -end products with domestic low -end product. 
However, the EU still fails to provide any textual basis supporting such an obligation.  
93. The USITC 's close examination of trends in each channel of distribution, where subject ripe 
olives pro ducts competed with domestically processed ripe olives of equivalent size and presentation, 
was in full accord with the USITC 's like product determination and its obligation to base its injury 
analyses on positive evidence following an objective examinatio n of the record.  WT/DS577/R/Add.1  
 
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  B. The USITC conducted a proper analysis of volume  
94. While most of the EU 's challenges to the USITC 's analysis of volume are tied to its general 
argument concerning market segmentation, it does raise two independent arguments. First, it 
contends that the USITC erred in finding the volume of unfairly traded imports significant when it 
declined in absolute and relative terms during the period of investigation. Additionally, it contends 
that the USITC failed to conduct an "objective examinat ion 'of the explanatory force of subject 
imports for the state of domestic industry as a whole '" on the premise that subject import volume 
sold to the retail channel amounted to a small proportion of total subject import shipments. However, 
the USITC opini on fully discharged the obligation to consider the "significance" of subject import 
volume.  
95. The USITC directly addressed the evolution of subject import volume during the period of 
investigation, and acknowledged that this volume did not increase on ei ther absolute or relative 
bases. In addition to evaluating volume data for the overall market, the USITC also considered 
subject import volume trends in the three channels of distribution. It observed that subject imports 
increasingly penetrated the retail  channel, which was the predominant channel for the domestic 
industry. The USITC also found that subject imports captured market share from the domestic 
industry in the retail channel, including in both the retail private label and retail branded 
subchanne ls. The USITC, weighing the record evidence and considering the arguments of the parties, 
reasonably concluded, on the basis of positive evidence and without favoring the interests of any 
particular party to the proceedings, that subject import volume was significant.  
C. The USITC conducted a proper analysis of price effects  
96. In addition to the EU 's challenges tied to its general argument concerning market 
segmentation, the EU raises further arguments challenging the USITC 's conclusion that underselling 
of the domestic product by the unfairly traded imports was significant.  
97. Based on its review of pricing data for four specific pricing products, the USITC found that 
subject imports pervasively  undersold domestic pricing products, in 37 of 48 available quarterly price 
comparisons, including in the retail channel, where subject imports captured market share from the 
domestic industry. The USITC also considered information on the record regarding lost sales, which 
indicated that 12 of 25 responding purchasers reported that subject import prices were lower than 
those for domestical ly processed ripe olives. The USITC, weighing the record evidence and 
considering the arguments of the parties, reasonably concluded, on the basis of positive evidence 
and without favoring the interests of any particular party to the proceedings, that subj ect import 
underselling was significant.  
D. The USITC conducted a proper impact analysis  
98. The EU argues that conceptually the "intensification" of competition in the retail channel is 
inconsistent with principles of open market competition. The EU 's sug gestion that the domestic 
processors could have simply directed sales to the distribution channel, or re -enter the 
institutional/food channel in which subject imports had displaced them prior to the period of 
investigation does not reflect what actually oc curred during the period of this investigation, and 
ignores the USITC 's record -supported findings regarding conditions of competition in the market. 
Specifically, the USITC found that there were distinct market channels, and each channel involved 
unique cu stomers that purchased ripe olive products prepared to meet requirements specific to each 
channel. Based on these conditions, the USITC determined that sales and market share that the 
domestic industry lost to subject imports led to an increase in their in ventories, which consisted 
largely of ripe olive products prepared for sale to retail purchasers.  
IV. THE USDOC 'S FINAL COUNTERVAILING DUTY RATE FOR GUADALQUIVIR WAS NOT INCONSISTENT 
WITH THE GATT  1994  OR THE SCM AGREEMENT  
A. The EU has not demonstrated th at the USDOC failed to request information on 
purchases of raw olives used to produce ripe olives  
99. The EU has acknowledged that the USDOC 's 4 August  2017 letter is "the key document" on 
the issue of whether the USDOC asked Guadalquivir to provide purcha se information for raw olives WT/DS577/R/Add.1  
 
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  used to produce ripe olives. However, the EU has tried to shift attention to a separate letter which 
the USDOC issued on 27 September. In its post -virtual session responses, the EU made 
two additional, flawed arguments related  to the USDOC 's 4 August and 27 September letters.  
First, concerning the disclosure of "essential facts" under Article  12.8, the EU argues that "the fact 
that information was asked for in an initial questionnaire is [not] sufficient to establish that the 
information is an essential fact  ...". As the United States has explained, the USDOC disclosed that 
purchases of raw olives processed into ripe olives was an essential fact under consideration; it did 
so through its initial questionnaire and, in any event, on two other occasions (i.e., the verification 
agenda and the verification report).  
100. Second , the EU argues that the "natural interpretation of the sequence" of the 4 August and 
27 September letters demonstrates that the 4 August letter "clearly was limited to requesting 
information on the volume of all raw olives ". When the USDOC issued its 4 August letter, it was not 
planning for its meaning to be understood in terms of a later -issued letter. Similarly, in responding 
to the 4 August letter, Guadalquivir and the other mandatory respondents were not doing so in the 
context of the 27 September letter. If the 4 August letter provided notice that the USDOC required 
purchase information f or raw olives processed into ripe olives, the 27 September letter did not 
somehow countermand that notice. The EU refers to the fact that the 27 September letter 
"represents an answer to a specific query of respondent 's counsel ". To be clear, Guadalquivir did not 
seek clarification or additional guidance from the USDOC.  
B. The EU has not properly challenged the calculation of the amount of benefit  
101. Several of the EU 's claims with respect to Guadalquivir pertain to the calculation of the amount 
of benefit. However, the EU did not bring a claim under Article  14 of the SCM Agreement . Asked 
about its omission, the EU argued that it did not need to bring a claim under Article  14 because "a 
determination of benefit conferred can comply with these specifi c disciplines [set] out in Article  14 
of the SCM Agreement  and nonetheless contravene other disciplines  ...". At their core, the EU 's 
claims are about the calculation of the amount of benefit. The EU summarized in its first written 
submission: "In conclusi on, the calculation of Guadalquivir 's subsidy rate (and consequently of its 
countervailing duty rate) violates Articles  VI:3 of the GATT 1994, and Articles  10, 19.1, 19.3, 19.4 
and 32.1 of the SCM Agreement".  However, it is Article  14 which speaks directly  to calculating the 
amount of benefit in terms of the benefit to the recipient.  
_______________  
 WT/DS577/R/Add.1  
 
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  ANNEX  C 
ARGUMENTS OF THE THIRD PARTIES  
Contents  Page  
Annex  C-1 Integrated executive summary of the arguments of Brazil  79 
Annex  C-2 Integrated executive summary of the arguments of Canada  82 
Annex  C-3 Integrated executive summary of the arguments of Japan  86 
Annex  C-4 Integrated executive summary of the arguments of Mexico  90 
Annex  C-5 Integrated executive summary of the arguments of Turkey  93 WT/DS577/R/Add.1  
 
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  ANNEX  C-1 
INTEGRATED EXECUTIVE SUMMARY OF THE  
ARGUMENTS  OF BRAZIL  
1. Brazil welcomes the opportunity to present its views as a third party in this dispute. In this 
submission, Brazil will focus on certain aspects of the European Union 's claim that the United States 
violated Articles  2.1 and 2.4 of the Agreement on Subsidies and Countervailing Measures (the 
"SCM Agreement ") because the United States Department of Commerce (the "USDOC ") failed to 
demonstrate that the subsidies at issue are specific.  
2. There appear to be two el ements that are relevant to an assessment of the specificity of the 
subsidies at issue in this dispute. The first element relates to eligibility , namely to the question of 
whether the programs limit access to the subsidies to "an enterprise or industry or group of 
enterprises or industries ", or whether the criteria or conditions governing eligibility for the subsidy 
are "objective " in the sense of footnote 2 to the SCM  Agreement. The second element relates to the 
subsidy amount , and relates, inter alia, to an assessment of whether the criteria or conditions 
governing the amount of the subsidy are also "objective " in the sense of footnote 2 to the 
SCM Agreement.  
3. In this submission, Brazil will focus on the issue of eligibility . The European Union (the "EU") 
argues that, in the case of the SPS Program, four cumulative conditions define which entities are 
entitled to benefit from the scheme: (i)  classify as a farmer; (ii)  hold a payment entitlement; 
(iii) declare an eligible hectare; and (iv)  activate the pay ment entitlement.1 With respect to the 
BPS Program, the EU explains that "the eligibility criteria under the BPS resemble those of the SPS ".2 
The EU argues that these requirements "make clear that the production of any agricultural product 
(let alone of olives) is not an eligibility condition under the SPS ". The EU makes a similar argument 
with respect to BPS.3 
4. This argument, however, is not directly relevant to an inquiry of specificity under Article  2 of 
the SCM  Agreement as far as eligibility to the benefits is concerned. The inquiry is not whether 
payments are "coupled to " or "decoupled from " current production. The question is rather whether 
the benefit is generally available, or whether access to the subsidy i s limited to "an enterprise or 
industry or group of enterprises or industries ". 
5. One should thus ascertain whether one or more of the four above -mentioned conditions 
operate so as to limit access to the subsidy to "an enterprise or industry or group of e nterprises or 
industries ". In particular, condition (ii) – the holding of a payment entitlement – seems to introduce 
a narrow limitation. This is because the holder of a payment entitlement must have received a 
payment in a reference period under at least one of previous support schemes.4 Brazil understands 
that, in the case of the SPS Program, for example, these support schemes are exhaustively listed in 
Annex VI of Regulation 1782/2003.  
6. Condition (ii) thus operates as a "filter". A relevant question i s then whether entities which 
received payments under at least one of the listed support schemes - and therefore fulfill condition 
(ii) above - form a group that qualifies as "an enterprise or industry or group of enterprises or 
industries " within the mean ing of Article  2 of the SCM  Agreement. Another relevant question would 
be whether the criterion of "holding a payment entitlement " meets the conditions of Article  2.1(b) 
of the SCM  Agreement. For example, does the criterion "favour certain enterprises over  others "? Is 
it "economic in nature and horizontal in application "? 
7. Regarding the SPS Program, for instance, the EU notes that, "[as] of 2004 more and more 
support schemes coupled to production converged into the SPS by successive reforms of a particula r 
market organization. Already in 2004, pursuant to Regulation 864/2004, payments for olives, arable 
crops, rice, grain legumes, rice, seeds, dried fodder, milk and milk products, as well as some beef 
 
1 First Written Submission by the European Union , para. 70. 
2 First Written Submission by the European Union, para.  115. 
3 First Written Submission by the European Union, paras.  71 and 115.  
4 The EU explains that an entity may also have received the holding or part of the holding by way of actual 
or anticipated inheritance by a farmer who met the above condition, or may have received a payment entitlement 
from the national reserve or by transfer ( First Written Submission by the European Union, para.  70). These 
possibilities do not seem to meaningfully alter the scope of eligible beneficiaries of the programs.  WT/DS577/R/Add.1  
 
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  and veal payments were replaced by the SPS ".5 To Brazi l, this is not a clear indication that the 
benefits of the SPS and BPS programs were or are widely available throughout the EU 's economy so 
as to render them not "specific " within the meaning of Article  2 of the SCM  Agreement.  
8. In that regard, the Panel may find some guidance in the findings of the panel in the  
US – Cotton  dispute. In that dispute, there was a question as to whether crop insurance subsidies 
were specific under Article  2 of the SCM  Agreement. That panel noted the following:  
"At some point that is not made precise in the text of the [SCM] agreement, and which 
may modulate according to the particular circumstances of a given case, a subsidy 
would cease to be specific because it is sufficiently broadly available throughout an 
economy as not to benefit a particular limited group of producers of certain products. 
The plain words of Article  2.1 indicate that specificity is a general concept, and the 
breadth or narrowness of specificity is not susceptible to rigid quantitative definit ion. 
Whether a subsidy is specific can only be assessed on a case -by-case basis ".6 
"Crop insurance subsidies are, generally, available for most crops but they are not 
generally available in respect of the entire agricultural sector in all areas. Each insu rance 
plan is available for a defined list of crops to which the FCIC determines that it is 
adapted. The proportion of the premium borne by the FCIC is set out in each plan. The 
major plan type (actual production history) is available for approximately 
100 agricultural commodities, and specifies upland cotton as one of them. The other 
four plan types (group risk, crop revenue coverage, income protection and revenue 
assurance) are available only for a limited number of eight  commodities or less and they 
each specify upland cotton as one of them. Certain sample policy provisions specify 
'cotton '. There are no subsidized crop insurance policies on the record available to all 
agricultural producers. They are therefore, in fact, not even generally available to th e 
industry which can be categorized as the agricultural industry ".7 
"In our view, the industry represented by a portion of United States agricultural 
production that is growing and producing certain agricultural crops (and certain livestock 
in certain reg ions under restricted conditions) is a sufficiently discrete segment of the 
United States economy in order to qualify as "specific" within the meaning of Article  2 
of the SCM  Agreement ".8 
9. Following the reasoning of that panel, in the case of the SPS Pr ogram, a relevant question is 
then whether entities which received payments under at least one of the support schemes listed in 
Annex VI of Regulation 1382/2003 - and therefore fulfill condition (ii) indicated in paragraph  3 
above  - form a group that quali fies as "a sufficiently discrete segment of the [EU 's] economy in order 
to qualify as 'specific ' within the meaning of Article  2 of the SCM  Agreement ". 
10. The EU does not seem to address this question. In referring to the SPS Program, the EU 
asserts that this program "does not grant payments to olive farmers specifically but to farmers that 
may have been growing olives in the past and may not continue growing that crop under the SPS ".9 
The EU then affirms that "[the] USDOC finding would have some chances of being considered correct 
had farmers growing olives under the Common Market Program be legally required to grow olives 
also under the SPS and then legally required to continue growing olives under the BPS in order to 
be entitled for support under those programs. In such scenario, the grant amounts received by olive 
growers under BPS in 2016 might be considered as directly related to the grant amount they received 
under the Common Market Program [footnote omitted] and tied to the production of olives ".10 
11. Again, the relevant inquiry is not whether grant amounts are "tied" to continued production 
of a specific crop. The fact that the SPS Program "does not grant payments to olive farmers 
specifically but to farmers that may have been growing olives in th e past and may not continue 
growing that crop under the SPS " does not in itself render the program non -specific. To the extent 
that farmers held entitlements under the SPS Program because they grew olives under the Common 
Market Program, those farmers may constitute "certain enterprises " within the meaning of Article  2.1 
 
5 First Written Submission by the European Union, para.  60. 
6 Panel Report, US – Upland Cotton , para.  7.1142.  
7 Panel Report, US – Upland Cotton , para.  7.1150.  
8 Panel Report, US – Upland Cotton , para.  7.1151.  
9 First Written Submission by the European Unio n, para.  323. 
10 First Written Submission by the European Union, para.  327. WT/DS577/R/Add.1  
 
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  of the SCM  Agreement for the purposes of the BPS Program, regardless of whether they continue to 
grow olives under that program.  
12. In Brazil 's view, the EU often appears to conflate conce pts defined under the  
Agreement on Agriculture with the concept of "specificity " as defined in the SCM  Agreement. For 
example, the EU argues that "[the] USDOC approach [to specificity] is at odds with the very notion 
of decoupled income support under WTO law".11 According to the EU, the Agreement on Agriculture 
"follows a reasonable approach and recognises the obvious: direct payments to farmers do not come 
out of the blue. They must be based on some objective criteria ".12 For the EU, "despite [the fact th at 
the SPS, BPS and Greening programs] would classify as decoupled income support measure under 
the [Agreement on Agriculture], according to the US they retain the de  jure specificity element 
inherent in the Common Market Program, i.e. the fact of being co upled to the production of olives. 
Simply put, the US logic is absurd ".13 
13. Brazil does not take a position as to whether the programs at issue would qualify as "decoupled 
income support " under the Agreement on Agriculture. At any rate, to the extent tha t the EU is 
suggesting that "direct payments to farmers " or "decoupled income support " are ipso facto  not 
"specific " within the meaning of the SCM  Agreement, Brazil disagrees. Nothing in Article  2 of the 
SCM Agreement requires that agricultural subsidies be "tied" or "coupled " to production for those 
subsidies to be specific. Notably, the drafters of the Agreement on Agriculture recognized, in 
Article  13 thereof, that subsidies that conformed fully to the prov isions of Annex  2 (and were thus 
"exempted from reduction commitments ") could be "actionable for purposes of countervailing duties " 
after the end of the nine -year implementation period that commenced in 1995, and hence specific 
within the meaning of Articl e 2 of the SCM  Agreement.  
 
 
11 First Written Submission by the European Union, para.  228. 
12 First Written Submission by the European Union, para.  232. 
13 First Written Submission by the European Union, para.  234. WT/DS577/R/Add.1  
 
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 ANNEX C -2 
INTEGRATED EXECUTIVE SUMMARY OF THE  
ARGUMENTS OF  CANADA  
I. ARTICLE  VI:3 OF THE GATT 1994 AND ARTICLES  1, 10 AND 19 OF THE 
SCM AGREEMENT REQUIRE AN INVESTIGATING AUTHORITY TO DETERMINE THE 
EXISTENCE AND AMOUNT OF AN INDIRECT SUBSIDY PRIOR TO IMPOSING 
COUNTERVAILING DUTIES  
1. The obligation to determine the existence and amount of a subsidy to the recipient is a 
cornerstone of the GATT 1994 and the SCM  Agreement. For a potentially countervail able subsidy to 
exist under Article  1.1 of the SCM  Agreement, there must be a financial contribution by a 
government that confers a benefit to a recipient. If the investigating authority has not determined 
the existence and amount of the subsidy to the rec ipient, there is no subsidy to offset and no 
countervailing duty may be imposed under Article  VI:3 of the GATT 1994 and Articles  10 and 19 of 
the SCM  Agreement.  
2. Where a subsidy is granted to an upstream producer of an input product —who is not subject 
to the investigation —and that upstream producer sells the input to an unrelated downstream 
producer of the product under investigation, economics dictates that the rational upstream producer 
will seek to retain some, if not all, of the benefit associated wit h the financial contribution. In this 
circumstance, to fulfill its obligations under the GATT 1994 and SCM  Agreement, the investigating 
authority must ensure that the recipient, the downstream producer, actually received a subsidy 
before imposing a counter vailing duty.  
3. The SCM  Agreement provides, and the Appellate Body has found, that a "benefit" conferred 
by a subsidy, as defined in Article  1.1(b), does not exist in the abstract and must be conferred on 
the recipient. Investigating authorities are requi red to establish that the essential elements of the 
subsidy definition in Article  1 of the SCM  Agreement are present prior to imposing countervailing 
duties. On this basis, the Appellate Body found in US – Softwood Lumber IV  that, absent the 
establishment of evidence to the contrary, an investigating authority may not deem that a 
downstream producer, who did not directly receive a financial contribution, nevertheless received all 
of the benefit conferred on an unrelated upstream processor.  
4. The obligation  to determine the existence and amount of a subsidy is found in 
GATT  Article  VI:3, which does not allow an investigating authority to levy countervailing duties in 
excess of an "amount" equal to the subsidy "determined" to have been granted on the product under 
investigation. The word "determine[]" indicates that an investigating authority is obligated to 
examine all relevant facts to ascertain the existence and amount of a subsidy granted to the product 
under investigation prior to imposing countervailing duties. The word "amount" requires an 
investigating authority to quantify, in terms of its financial value, the subsidy bestowed on the 
product under investigation. GATT Article  VI:3 is clear that this principle applies both to indirect and 
direct subsidie s. 
5. Consequently, as the Appellate Body explained in its analysis of GATT Article  VI:3 in  
US – Softwood Lumber IV , an investigating authority must establish "whether, and in what amount, 
subsidies bestowed on the producer of the input flowed through, do wnstream, to the producer of 
the product processed from that input" because "Members must not impose duties to offset an 
amount of the input subsidy that has not passed through to the countervailed processed products".1 
6. Article  10 of the SCM  Agreement incorporates GATT Article  VI:3 into the SCM  Agreement and 
provides that an investigating authority must "take all necessary steps to ensure that the imposition 
of a countervailing duty on any product […] is in accordance with the provisions of Article  VI of 
GATT  1994 and the terms of this Agreement". As a result, the investigating authority must be 
proactive in determining the existence and amount of a subsidy to the recipient.  
 
1 Appellate  Body Report, US – Softwood Lumber IV , para.  141. WT/DS577/R/Add.1  
 
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  7. Articles  19.1 and 19.4 of the SCM  Agreement separately confirm the "clear nex us" between 
the investigating authority's determination of the existence and amount of a subsidy to the recipient 
and the imposition of countervailing duties.2 Article  19.1 provides that if a "Member makes a final 
determination of the existence and amount  of the subsidy" it may "impose a countervailing duty in 
accordance with the provisions of [Article  19]". Article  19.4 echoes the language of GATT Article  VI:3 
and provides that "[n]o countervailing duty shall be levied on any imported product in excess of the 
amount of the subsidy found to exist, calculated in terms of subsidization per unit of the subsidized 
and exported product". Article  19.4 thus indicates that an investigating authority may not presume, 
but must "calculate", the subsidy per un it of the product under investigation. If the investigating 
authority has not determined the existence and amount of an indirect subsidy received by the 
downstream producer and has not calculated the amount of subsidy attributed to the investigated 
product , it cannot levy a countervailing duty pursuant to Articles  19.1 and 19.4.  
8. The above principles are borne out by the context of these provisions, which indicates that an 
investigating authority is required to calculate the amount of the subsidy to the r ecipient. Article  14 
of the SCM  Agreement provides relevant context to the meaning of "benefit" under Article  1.1(b), 
and makes clear that the investigating authority must "calculate" the amount of benefit to the 
recipient. It is not sufficient to simply p resume or deem a recipient "better off" when a financial 
contribution is provided to an unrelated producer of an input product.  
9. The United States claims that the GATT 1994 and SCM  Agreement do not prescribe a particular 
methodology for calculating the b enefit. Canada agrees that these provisions do not prescribe a 
particular methodology. However, they do place meaningful limitations on the methodology that an 
investigating authority may use. An investigating authority may not satisfy its obligations unde r the 
GATT 1994 and SCM  Agreement by merely asserting its countervailing duty is a reasonable 
approximation of the subsidy; it must calculate the countervailing duty based on the record evidence 
particular to the amount of the subsidy.  
10. In cases where a n investigating authority is evaluating whether a subsidy has "passed 
through" when a downstream producer of the product under investigation purchases a subsidized 
input product from an unrelated upstream producer, the record evidence particular to the amo unt 
of the subsidy is the price of the input product. In accordance with GATT Article  VI:3 and Articles  10 
and 19 of the SCM  Agreement, the investigating authority must determine, or calculate, whether 
and to what extent the price paid for the input produc t by the downstream producer includes a 
subsidy. This determination necessarily involves the input product's price.  
11. Likewise, the price of the allegedly subsidized input is necessary to determine whether the 
purchase of that input conferred a "benefit"  under Article  1.1(b) of the SCM  Agreement. As the 
Appellate Body stated in Canada – Aircraft , the word "benefit", as used in Article  1.1(b), implies 
some kind of comparison. In a transaction between a downstream producer and an unrelated 
upstream producer , the "benefit" is reflected in what the downstream producer paid for the 
subsidized input, relative to what it would have otherwise paid. If the price of an input does not 
confer a benefit, no benefit "passed through" from the upstream subsidy recipient t o the unrelated 
downstream producer of the product under investigation.  
12. Finally, Canada agrees with the European Union that where there are multiple transactions 
between unrelated parties in a supply chain, an investigating authority must examine wheth er a 
benefit was conferred at each level of the supply chain in its analysis of the existence and amount 
of the subsidy bestowed on the product under investigation.  
II. SECTION  771B DOES NOT ALLOW FOR AN ANALYSIS CONSISTENT WITH THE 
GATT  1994 AND SCM  AGREE MENT  
13. The dispute between the European Union and the United States focuses on whether 
Section  771B of the U.S. Tariff Act of 1930 ("Section  771B") is capable of establishing that a subsidy 
provided to the producer of an input product has "passed through " to benefit the purchaser of that 
input product. When a subsidy is provided to a raw agricultural product, Section  771B deems that 
the subsidy has "passed through" to the downstream processed agricultural product under 
investigation when two conditions ar e met: (1) the demand for the prior stage product is 
substantially dependent on the demand for the latter stage product and (2) the processing operation 
 
2 Panel Report, US – Lead and Bismuth II , para.  6.52. WT/DS577/R/Add.1  
 
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  adds only limited value to the raw commodity . By providing that the United States Department of 
Commerc e ("Commerce ") "shall" deem the existence of a countervailable subsidy when these 
two conditions are met, it appears to Canada that Commerce has no discretion under Section  771B 
to conduct other analyses or necessary steps to determine the existence and am ount of subsidy.  
14. In order to  "determine" and "calculate" the subsidy to the recipient, it is necessary for an 
investigating authority to consider what the recipient actually received. Accordingly, when 
determining whether the purchase of an input product conferred a subsidy, and calc ulating its 
amount, it is necessary for an investigating authority to evaluate the price paid for the input product. 
Section  771B precludes such an evaluation because the two conditions set out in Section  771B do 
not evaluate the price paid for the input p roduct. As a result, Section  771B does not allow Commerce 
to determine whether the purchase of the input product conferred a benefit to the purchaser or to 
calculate the amount of subsidy conferred by virtue of the input product's price.  
15. The conclusion s of the GATT panel in US – Canadian Pork  with respect to Section  771B apply 
equally in this case. That panel found that an analysis prescribed by Section  771B precluded 
Commerce from conducting an analysis of whether a subsidy was granted on the product u nder 
investigation and was thus inconsistent with GATT Article  VI:3. 
16. The United States argues that Section  771B is a valid methodology through which to measure 
whether a benefit was received because of the particular factual circumstances associated with 
agricultural products. Canada does not agree that the economics of pass -through is inherently 
different for agricultural producers than any other producer.  
III. DE JURE SPECIFICITY UNDER ARTICLE  2.1(A) OF THE SCM  AGREEMENT  
17. Article  2.1(a) provides that a subsidy is de jure specific where there is an explicit limitation on 
"access" to "certain enterprises". Th e term "access" within Article  2.1(a) means "[t]he right or 
opportunity to benefit from or use a system or service".  
18. The question of whether an enterprise has a right to benefit from a subsidy does not exist on 
a spectrum. It is a yes -no question. Even  if an enterprise receives a lower amount of subsidy by 
virtue of a distinction in the relevant legislation, that enterprise still has access to the subsidy by 
virtue of having the "right or opportunity to benefit" from it. Therefore, the inquiry under 
Article 2.1(a) is not whether there is an explicit limitation that "favours" certain enterprises. Instead, 
Article  2.1(a) asks whether there is an explicit limitation on access to a subsidy to "certain 
enterprises", which necessarily means that the subsidy is  not accessible outside of that defined group 
of "certain enterprises".  
19. In addition, the "explicit limitation" on access must identify "certain enterprises". On the basis 
of the definitions of "explicit" and "explicitly", the Appellate Body has found t hat the limitation on 
access must be "express, unambiguous, or clear from the content of the relevant instrument, and 
not merely 'implied' or 'suggested'".3 The word "to" prior to "certain enterprises" in Article  2.1(a) 
shows that the explicit limitation on access to a subsidy must identify certain enterprises or 
industries. If the granting authority or its legislation does not expressly limit access to "certain 
enterprises", and therefore exclude other enterprises  by not granting them access, the subsidy is 
not de jure specific pursuant to Article  2.1(a).  
20. The ordinary meaning of Article  2.1(a) does not allow governments to evade the subsidy 
disciplines of the SCM  Agreement. If a subsidy does not contain an expl icit limitation on access, but 
instead "favours" certain enterprises by granting those enterprises disproportionately large amounts 
of subsidy, an investigating authority could conduct a de facto specificity analysis pursuant to 
Article  2.1(c). Article  2.1(c) expressly provides that an investigating authority may consider "the 
granting of disproportionately large amounts of subsidy to certain enterprises" as a factor in a 
de facto specificity analysis. To consider this factor under Article  2.1(a) would rend er Article  2.1(c) 
redundant and inutile . 
 
3 Appellate  Body Report, US – Anti-Dumping and Countervailing Duties (China) , para.  372. WT/DS577/R/Add.1  
 
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  IV. ARTICLES  12.1 AND 12.8 REQUIRE AN INVESTIGATING AUTHORITY TO GIVE 
NOTICE OF INFORMATION REQUIRED AND IN FORM INTERESTED PARTIES OF THE 
ESSENTIAL FACTS UNDER CONSIDERATION  
21. Articles  12.1 and 12.8 of the SCM  Agreement provide that an investigating authority must 
give respondents appropriate notice of required information and ample opportunity to present all 
relevant evidence, and inform respondents of the essential facts under consideration.  
22. Article  12.1 requ ires an investigating authority to notify an interested party of the information 
required and provide the party ample opportunity to present the relevant information. The panel in 
China – Broiler Products (Article  21.5 – US) found that obligation entails r eaching out and making 
all interested parties aware of the information in question. While this requirement is assessed on a 
case-by-case basis, for a "notice" under Article  12.1 to have any meaning, the required information 
must be apparent from the invest igating authority's request for information.  
23. Article  12.8 provides for the disclosure of "essential facts" under consideration which form the 
basis for the decision to apply definitive measures. Disclosing these essential facts is critical to 
ensuring that interested parties are able to defend their interests before an investigating authority 
makes its final determination. In Canada's view, the evidence forming the basis of an investigating 
authority's calculation of subsidization is an "essential fact"  that must be disclosed prior to the final 
determination.  
24. The timing of an investigating authority's disclosure of essential facts is critical to determining 
whether that disclosure satisfies the requirements of Article  12.8. Article  12.8 provides that  the 
disclosure of essential facts under consideration which form the basis for the decision whether to 
apply definitive measures "should take place in sufficient time for the parties to defend their 
interests". If a party does not have an opportunity to r espond to the disclosed essential facts with 
evidence, the disclosure has not taken place in sufficient time for that party to defend its interests.  
 WT/DS577/R/Add.1  
 
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 ANNEX C -3 
INTEGRATED EXECUTIVE SUMMARY OF THE  
ARGUMENTS OF  JAPAN  
I. THE REQUIREMENT FOR A PASS-THROUGH ANALYSIS  
1. Japan generally agrees with the European Union that the essence of the pass -through analysis 
in a CVD case is "to determine whether and to what extent the subsidies granted to the input (raw) 
product led to a decrease in the level of prices for the input p roduct paid by the processors below 
the level they would have to pay for the input product from other commercially [sic] sources of 
supply".1 Japan disagrees with t he United States ' argument that Article  VI:3 of the  GATT  1994 
presupposes that the determination of benefit has already been made,2 and that there is no need to 
assess the input price in absence of the subsidy in the pass -through situation.3 
2. Contrary to a prohibited/actionable subsidies case under Article  XVI of the  GATT  1994, in a 
CVD case, a pass -through analysis and an estimated quantification of the amount of pass -through 
is required because of Article  VI:3 of the  GATT  1994, which provides that a countervailing duty 
should not be imposed "in excess of" the "estimated" subsidy. Co nsidering that the benefit of 
upstream subsidies would be conferred to downstream producers only through the lowered price of 
the input, an estimated quantification of how much the input price is lowered by the upstream 
subsidy  is logically required to ass ess the benefit conferred to the downstream producers, so the 
downstream producers can lower the price of their products by using such benefit . 
3. That said, as no particular pass -through methodology to calculate the benefit is prescribed by 
any provision of the  GATT  1994 or SCM  Agreement, the rigid calculation of an actual amount of 
subsidy that passes through should not be required . Quantification of pass -through, which may 
include confirmation of its existence, in CVD investigations may be based on reaso nable inferences 
or presumptions supported by all relevant facts in a particular case.4 
4. In this regard, Japan considers that certain elements may indicate the existence of  
pass-through or a high degree of pass -through. Depending on the particular fact s of the case, in 
some circumstances it may also be presumed that all of the benefit received by an upstream input 
supplier is passed through to the downstream producer. One such exceptional example may be 
where both upstream and downstream producers are c onsidered a single entity due to their capital 
structure or other relationship.  
5. Also, the structure, nature, or objective of the subsidy may be highly relevant. Upstream 
subsidies granted under industrial policies aimed at promoting certain manufacturin g industries tend 
to be structured to lower the input price (and/or to increase the input production) rather than to 
allow the upstream producers to pocket the benefit. Other factors may also support the inference or 
presumption of pass -through, such as wh ether: (a) the upstream and downstream producers are 
affiliated;5 (b) the subsidized upstream producers are dominant suppliers in the input market; 
(c) the subsidized inputs are commodities; and/or (d)  the subsidized products are raw inputs that 
would be processed exclusively into the subject downstream products.  
6. Having said that, these factors are not decisive by themselves. For example, even when the 
subsidized inputs are commodities, depending on how the price of such commodities are formed in 
the ma rket, pass -through of the benefit may not be lightly inferred. Namely, if downstream 
 
1 European Union 's first written submission, para.  407 ( citing  GATT Panel Report, US – Canadian Pork , 
para. 4.9). 
2 United States ' first written submission, para. 111. 
3 United States ' first written submission, paras.  131-132; and United States ' responses to the panel 's 
questions as of 10  June 2020, para.  45 (Q12(b)).  
4 See GATT Panel Report, US – Canadian Pork , para.  4.8 ("the words in Article  VI:3 'to determine ' and 
'estimated ' as well as the practices of the contracting parties under that provision, as reflected in Part I of the 
Subsidies Code, indicate that the decision as to the existence of a subsidy must result from an examination of 
all relevant facts "). 
5 See Appellate  Body Report, US – Softwood Lumber IV , para.  146; and Panel Report, Mexico – Olive 
Oil, para.  7.142.  WT/DS577/R/Add.1  
 
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  producers have access to low -priced imports that are substitutable for the domestic input produced 
by subsidized upstream producers, then an upstream subsidy may not chang e the input price to be 
paid by the subject downstream producers. In that case, the benefit of the upstream subsidy would 
not pass through to the downstream producers.  
II. THE INJURY ANALYSIS  
7. We now address the appropriate injury analysis pursuant to Article  15 of the SCM  Agreement 
and Article  3 of the Anti -Dumping  Agreement. We will reference these provisions interchangeably 
and draw on jurisprudence under either set of provisions, as needed.  
1. The Segmented Analysis  
8. With regard to the  nature of the required injury analysis in any CVD or AD investigation, the 
analysis of volume, price, impact, and causation must proceed in a "logical progression" ultimately 
resulting in a conclusion as to whether subject imports are causing injury to th e domestic industry 
as a whole.6 Based on this principle and the fact that nothing in Article  15 of the SCM  Agreement or 
Article  3 of the Anti -Dumping  Agreement precludes a segmented analysis of any kind, Japan 
considers that, even with a single like prod uct, a segmented analysis is allowed, as long as: 
(i) ultimately the investigating authority reaches a conclusion on injury to the domestic industry as 
a whole ;7 and (ii)  the investigating authority adequately demonstrates why its segmented analysis 
is appropriate in the circumstances of a given case. In particular, in the case of a single like product, 
a panel should examine whether the investigating authority has reasonably explained the meaningful 
existence of each segment used in the injury analysis (e .g., by confirming distinguishable different 
purchase patterns), such that its segmented analysis is reasonably warranted.  
9. Moreover, once an investigating authority determines to undertake a segmented analysis of 
the injury components, it must carry out  that segmented analysis throughout its injury inquiry in a 
manner that proceeds in a "logical progression" and leads to an injury conclusion for the domestic 
industry as a whole. For example, an investigating authority may not cherry -pick and conduct a 
segmented analysis under volume but an overall analysis under price and impact. Instead, it must 
conduct its subsequent analyses on the basis of the same market segmentation and integrate its 
analyses at the end to determine whether subject imports are a cau se of material injury to the 
domestic industry as a whole . 
2. The Volume Analysis and the Price Analysis Under Article  15.2 of the SCM  Agreement 
and Article  3.2 of the Anti -Dumping  Agreement  
10. Japan considers that the volume analysis under Article  15.2 o f the SCM  Agreement and 
Article  3.2 of the Anti -Dumping  Agreement must examine whether there has been a significant 
increase in subject imports, and not merely the presence of subject imports, which includes 
two inquiries: first, whether subject imports have gone up; and second, whether subject imports 
have replaced domestic like products. The result of both inquiries must be affirmative in order to 
conclude that there has been a " significant increase " in subject import volumes.  
11. Similarly, the price effects analysis under the same provisions requires an inquiry into the 
competitive relationship between subject imports and domestic like products, including whether 
subject import prices may result in reduced pric es or sales of domestic like products, to establish 
any price effects are significant . 
12. In short, this is because Article  15.2 of the SCM  Agreement and Article  3.2 of the  
Anti-Dumping  Agreement call for a "significant" volume increase and a "significant " price effect in 
the context of the "logical progression" through the series of inquiries from volume and price effects, 
to impact and causal link.8 Such requirement necessitates the investigating authority to objectively 
examine: interactions in the mar ket between the volume/price of the subject imports and that of 
the domestic like products, as appropriate in the context of each specific case and reflected in the 
 
6 See Appellate  Body Report, China – GOES , para.  128. 
7 Appellate  Body Report, China – HP-SSST (Japan) / China – HP-SSST (EU) , para.  5.204 ( citing  
Appellate  Body Report, US – Hot-Rolled Steel , para.  195) (emphases in original).  
8 See Appellate  Body Report, China – GOES , paras.  128 and 138; Panel Report, China – X-Ray 
Equipment , para.  7.49. WT/DS577/R/Add.1  
 
- 88 - 
 
  trends of each; and any additional positive evidence pertaining to the degree of the compet itive 
relationship between the subject imports and the domestic like products.  
13. By doing so, the investigating authority can ascertain whether subject imports have been 
replacing  domestic like products during the POI, such that any volume increase may be considered 
"significant". This also allows the investigating authority to ascerta in whether price undercutting may 
have a "significant" "effect" on the price of the domestic like product, which may be (i)  an actual 
decrease or prevention of increase in the prices of a domestic like product, or (ii)  in the absence of 
such phenomena of d omestic price, lost sales or a decrease in the volume or market share of a 
domestic like product caused by the lower priced imports.  
14. Without a positive finding on such "significant" volume increase or price effects due to the 
subsidies or dumping, a co ncluding finding that subject imports have had an adverse impact on the 
domestic industry under Article  15.4 of the SCM  Agreement or Article  3.4 of the  
Anti-Dumping  Agreement would lack the aforementioned "logical progression" from the assessment 
of volume  and price, and consequently would not be reasoned and adequate.  
III. STANDARD OF REVIEW  
15. Lastly, Japan would like to make a few comments on the standard of review for a panel 's 
review of CVD measures, which the parties discuss in their answers to the P anel's questions.  
16. First, Japan considers that the standard of review is essentially the same irrespective of 
whether a panel reviews CVD measures or AD measures. Article  17.6(i) of the  
Anti-Dumping  Agreement does not conflict with Article  11 of the DSU which stipulates the standard 
of review under any of the covered agreements . The former provision reflects closely the obligation 
of "objective assessment" imposed under the latter provision, and the text of both provisions 
require s panels to actively review or examine the pertinent facts .9 Moreover, the structure of review 
on a trade remedy measure (whether it be a CVD measure, AD measure, or safeguard measure) is 
essentially the same – that is, when a panel reviews the WTO -consistency of a Member 's trade 
remedy measure, a panel must look into the determination by an investigating authority which is at 
the basis of the measure taken. Further, when a panel is reviewing a single injury determination 
concerning both subsidized and dumped imports and claim s involving identical or almost identical 
provisions of the SCM  Agreement and Anti -Dumping  Agreement, it should seek to avoid inconsistent 
conclusions.10 
17. Second, while a de novo review is prohibited, a panel must nonetheless make an objective 
assessmen t under Article  11 of the DSU and Article  17.6(i) of the Anti -Dumping  Agreement. In this 
regard, Japan recalls the following relevant findings by the Appellate  Body:  
[T]he panel conducts an "objective assessment" of whether the investigating authority 
provided a reasoned and adequate explanation of (i) how the evidence on the record 
supported its factual findings; and (ii) how those factual findings supported the overall 
subsidy determination.… Panels must, therefore, review whether the competent 
authoritie s' explanation fully addresses the nature, and, especially, the complexities, of 
the data, and responds to other plausible interpretations of that data. A panel must find, 
in particular, that an explanation is not reasoned, or is not adequate, if some alte rnative 
explanation of the facts is plausible, and if the competent authorities' explanation does 
not seem adequate in light of that alternative explanation .11 
18. As a panel must not conduct a de novo review of the evidence before the competent authority  
whose determination is subject  to a WTO  dispute ,12 a panel may not reach an alternative finding 
when both the investigating authority 's finding and such alternative finding are among competing 
reasoned and adequate findings, and it may not reexamine the in vestigating authority 's 
determination on the basis of new facts or evidence. However, a panel also may not completely 
 
9 Appellate  Body Report, US – Hot-Rolled Steel , para.  55. 
10 See Panel Report, US – Softwood Lumber VI , para.  7.18. 
11 Appellate  Body Report, US – Countervailing Measures (China) (Article  21.5 – China) , para.  5.164.  
12 Ibid. (citing Appellate  Body Report, US – Softwood Lumber VI (Article  21.5 – Canada) , para.  93; US – 
Countervailing Duty Investigation on DRAMS , paras.  183 and 186 -188; US – Lamb , para.  106. WT/DS577/R/Add.1  
 
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  defer to an investigating authority.13 Instead, it is possible and moreover required under Article  11 
of the DSU for panels to critically examine whether the investigating authority 's finding is reasoned 
and adequate. In other words, under the applicable standard of review, a panel must still examine 
whether the investigating authority 's finding does not contain a substantial logical flaw, based on 
the underlying explanations and facts.  
 
 
13 See Panel Report, US – Shrimp II (Viet Nam) , para.  7.8. WT/DS577/R/Add.1  
 
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 ANNEX C -4 
INTEGRATED EXECUTIVE SUMMARY OF THE  
ARGUMENTS OF  MEXICO  
Mexico's responses to certain q uestions from the Panel to the parties in advance of the  
first substantive meeting  
1  SPECIFICITY CLAIMS  
Question 2 : Article  2.1(a) of the SCM  Agreement refers to legislation which "explicitly limits access" 
to a subsidy. Under a proper interpretation of Article  2.1(a), does "access" refer to:  
a. criteria that determines eligibility  for the subsidy (i.e., whether certain enterprises can 
or cannot receive the subsidy); and/or  
b. criteria that determines the amount  of the subsidy (i.e., dis tinctions that affect amounts 
of subsidy that those enterprises will receive).  
Please state your position and explain why.  
Reply : 
In our opinion, the phrase "explicitly limits access to a subsidy to certain enterprises" should be 
understood as referring to  the existence of mechanisms or directives through which the subsidy is 
accessible only to the "certain enterprises" (the enterprise, industry, enterprises or industries) 
allegedly receiving the subsidy, something that is necessarily linked to eligibility criteria for the 
granting of the subsidy. In other words, the meaning of this expression implies that only certain 
enterprises that meet the criteria may receive the subsidy. We do not see anything in the text of the 
provision that refers to the subsidy be ing specific when access is generalized but distinctions exist 
in relation to the amount granted.  
Question 3 : Does Article  2.1(a) of the SCM  Agreement establish a legal requirement for an 
investigating authority to review the eligibility criteria of a part icular subsidy programme to establish 
that access to a subsidy is expressly limited within the meaning of that provision? Did the USDOC 
undertake such a review and did it rely on eligibility criteria in arriving at its finding of specificity?  
Reply : 
Article 2.1(a) establishes that for there to be specificity, the granting authority, or the legislation 
pursuant to which the granting authority operates, must explicitly  limit access to a subsidy to certain 
enterprises. This means that for the investigating aut hority to be able to objectively determine that 
the limitation is indeed explicit and the subsidy therefore specific, it is obliged to analyse the 
eligibility requirements for the granting of a certain subsidy. We see no other way to conclude that 
the limi tation on a subsidy is explicit than by analysing the conditions attached to the granting of 
the subsidy.  
Question 4 : Does the fact that a past subsidy programme was established under a legal instrument 
no longer in force mean that the past programme canno t serve as a basis for a de jure specificity 
determination? Please explain taking into account that Article  2.1(a) of the SCM  Agreement states 
that "the legislation pursuant to which the granting authority operates, explicitly limits access to a 
subsidy to certain enterprises".  
Reply : 
Mexico notes that, in principle, for an subsidy to be considered de jure, it is vital that it be established 
under a legal instrument. That legal instrument may be a law, a regulation, or even an administrative 
decre e issued by the administrative authority empowered to do so. In that context, we do not believe WT/DS577/R/Add.1  
 
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  that Article  2.1(a), in mentioning "legislation", is referring exclusively to the rules emanating strictly 
from a body of legislation, but instead to any rule t hat may constitute a legal basis for validly taking 
action. We therefore consider that while a de jure subsidy may be established on any type of relevant 
legal basis, the fact that it is provided for on that legal basis and that the legal basis is in force , is 
absolutely necessary in order for the subsidy to be considered de jure. 
Question 8 : Could a finding that a subsidy programme is de jure specific to "certain enterprises" 
within the meaning of Article  2.1 of the SCM  Agreement, (i.e., to olive growers as determined by 
the USDOC in the present dispute), be consistent with Article  2.1(a) of the SCM  Agreement, if the 
evidence demonstrates that other enterprises (i.e., not only olive growers) were eligible for the 
payments under the same subsidy pro gramme?  
Reply : 
Article  2.1 of the SCM  Agreement clearly establishes that in order to determine whether a subsidy 
is specific to certain enterprises, various aspects must be considered. One such aspect is set out in 
Article  2.1(a), which requires that the a uthority or legislation explicitly  limit access to the subsidy. 
Therefore, in order for the subsidy to be de jure specific in accordance with Article  2.1(a) of the 
SCM Agreement, there must be clear and explicit limitations in respect of the eligibility cr iteria that 
determine the "certain enterprises" that have access to the subsidy; thus, if the evidence 
demonstrates that other enterprises are eligible under the programme, the explicit limitations 
provided for in Article  2.1(a) of the SCM  Agreement cannot  exist at the same time. The 
determination that the subsidy is de jure would therefore be inconsistent with that Article.  
In this regard, in US – Countervailing Measures (China) , the Appellate  Body established the 
following:  
"In cases where an examination of the nature and content of the challenged measure 
indicates that access to a subsidy is explicitly  limited to certain enterprises […] that are 
spelled out in law, regulation, or other official  document , an investigating authority will 
normally begin by e xamining this evidence in the light of subparagraphs  (a) and (b) in 
order to determine whether the subsidy is de jure specific. This analysis under 
subparagraphs  (a) and (b) may lead an investigating authority to conclude that a 
subsidy is de jure specific  within the meaning of Article  2.1(a), or that a subsidy is not 
de jure specific because there are objective criteria or conditions that are clearly spelled 
out in law, regulation, or other official document ."1 
Furthermore, in EC and certain member States – Large Civil Aircraft , the Panel determined that : 
"The specificity principle set out in Article  2.1(a) focuses on whether the granting 
authority, or the legislation pursuant to which the granting authority operates, explicitly 
limits access to a su bsidy to certain enterprises. It follows […] that it is not any limitation 
on access to a subsidy to certain enterprises that will make it specific within the meaning 
of Article  2.1(a), but only a limitation that '{d}istinctly express{es} all that is meant ; 
leaving nothing merely implied or suggested'; a limitation that is 'unambiguous' and 
'clear'."2 
In other words, if the corresponding legal instrument does not clearly establish the limitation on 
access to the subsidy for certain enterprises, or if it is  ambiguous or leaves room for other enterprises 
to access the programmes, the subsidy cannot be considered de jure specific in accordance with 
Article  2.1(a) of the SCM  Agreement.  
It is therefore clear that a de jure specific subsidy for "certain enterprises" must be explicit, with 
limitations on access to the programme that are clearly defined in the corresponding legal 
instruments, and that if the eligibility analysis demonstrated, through evidence, that other  
enter prises were also eligible, the finding of de jure specificity would be inconsistent with 
Article  2.1(a) because the limitations did not exist or were not clear and unambiguous.  
 
1 Appellate Body Report, US – Countervailing Measures (China)  (DS437), para.  4.120.  
2 Panel Report, EC and certain member States – Large Civil Aircraft (DS316), para.  7.919.  WT/DS577/R/Add.1  
 
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  2  "PASS -THROUGH" OF BENEFIT CLAIMS  
Question 14 : In paragraphs  124-127 of its f irst written submission, the United States argues that 
the negotiating history of Article  VI:3 of the  GATT  1994 and the SCM  Agreement supports a finding 
that no specific methodology is required with respect to the issue of pass -through.  
(a) Please comment on the negotiating history to which the United  States refers.  
(b) How should Article  VI:3 of the  GATT  1994 and the relevant provisions of the 
SCM Agreement be interpreted in respect of whether any (and if so, what) methodology 
is required on the is sue of pass -through?  
Reply : 
In our view, neither Article  VI:3 of the GATT, nor the provisions of the SCM  Agreement, nor 
WTO jurisprudence, have established any particular methodology to be used by an investigating 
authority to corroborate the pass -through of benefits, and merely indicate that it is the authority's 
obligation to conduct the relevant analysis to demonstrate the existence of that pass -through. What 
has been established, however, is that it is not enough to presume the existence of that  
pass-through, and that an analysis must be conducted to confirm the pass -through and, in turn, the 
impact on the price of the end product, unless the recipients of the subsidy are vertically integrated 
with the producers of the product subject to the countervail ing duty, as in this case there is a direct 
link in the pass -through of the subsidy and its benefits, which does not occur when the producers 
(of the input and the end product) are not linked, in which case it is necessary to analyse and 
determine whether the subsidy on the inputs really affects (and to what extent) the end product 
subject to the countervailing duty determination.3 
3  INJURY CLAIMS  
Question 23 : Could a requirement to examine other segments of the domestic industry, as well as 
the industry as a whole, be waived if an investigating authority explains why such examination is 
not necessary, as suggested in paragraph  204 of the Appellate Body report in US – Hot-Rolled Steel ? 
Reply : 
In Mexico's view, the fact that the Appellate  Body, in its report in US – Hot-Rolled Steel , established 
that in the event of a sectoral examination of the domestic industry " [one possibility is that]  the 
investigating authorities […] provide a satisfactory explanation as to why it is not necessary to 
examine directly or specifically the other parts of the domestic industry"  does not mean that the 
investigating authority can simply provide an explanation, as could be inferred from the question, 
but rather that the explanation must be "satisfactory". In our opinion, this means that the 
explanation must be sufficiently detailed, structured and substantiated to constitute an explanation 
that properly justifies why the authority would not conduct an examination of the other segments of 
the domestic industry.  
 
 
3 Panel Report, Mexico – Olive Oil (DS341), paras.  7.136 -7.140.  WT/DS577/R/Add.1  
 
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 ANNEX C -5 
INTEGRATED EXECUTIVE SUMMARY OF THE  
ARGUMENTS OF  TURKEY  
I. INTRODUCTION  
1. Turkey will, in the following paragraphs, refer to the relevant provisions (Articles  3.1, 3.2, 3.4, 
3.5 and 4.1) of the Anti -Dumping  Agreement and will not repeat the corresponding provisions 
(Articles  15.1, 15.2, 15.4, 15.5 and 16.1) of the Agreement on Subsidies and Countervailing 
Measures due to the parallelism between the relevant articles in both agreements.  
II. CLAIMS RELATING TO THE PASS -THROUGH ANALYSIS  
2. Articles  10 and 32.1 of the SCM  Agreement and Article  VI:3 of the General Agreement on 
Tariffs and Trade (GATT) require a pass -through analysis. Taking into account the abovementioned 
Articles, to apply an appropriate counterva iling duty on imports, a member must conduct an 
investigation in all aspects to understand whether and to what extent a subsidy passed through from 
a grower of an agricultural product to the exported merchandise.  
3. In US – Softwood Lumber IV  the Appellate Body found that:1 
"The phrase "subsid[ies] bestowed ... indirectly ", as used in Article  VI:3, implies that 
financial contributions by the government to the production of inputs used in 
manufacturing products subject to an investigation are not, in principle, excluded from 
the amount of subsidies that may be offset through the imposition of countervailing 
duties on the processed product. Where the producer of the input is not the same entity 
as the producer of the processed product, it cannot  be presumed, however, that the 
subsidy bestowed on the input passes through to the processed product. In such case, 
it is necessary to analyze to what extent subsidies on inputs may be included in the 
determination of the total amount of subsidies bestowe d upon processed products. For 
it is only the subsidies determined to have been granted upon the processed products 
that may be offset by levying countervailing duties on those products. " 
4. In order to make a pass -through analysis that is required by the aforementioned Articles, an 
investigating authority should investigate whether processors have made purchases from the input 
producers through an arm 's length transaction. An examination of whether a transaction is made at 
arm's length requires a look into  whether there is price differentiation and as well as an analysis as 
to whether and to what extent a subsidy granted to an input product lowers its price and thus benefit 
passes through to processors. Although it appears that Section  771B does not call fo r an automatic 
application of pass through analysis in agricultural products and neither GATT and SCM  Agreement 
require a particular methodology for conducting a pass through analysis, we think that there is no 
provision in SCM that differentiate agricultu ral products for an alternative and limited methodology 
in pass through analysis.  
5. Furthermore, even if a subsidy provided to a grower of an agricultural product can  
pass-through to the exported goods by lowering raw product 's prices, this is not a black  and white 
issue. The investigating authority has to establish what amount of subsidy to the grower can pass 
through to processors. In doing this calculation an investigating authority shall take into account all 
parties, including growers and distributors  to calculate the appropriate amount.  
III. CLAIMS UNDER ARTICLES  3.1 AND 4.1 OF THE ANTI -DUMPING  AGREEMENT  
6. Article  4.1 of the Anti -Dumping  Agreement defines the term "domestic industry" either as "the 
domestic producers as a whole of  the like products " or "those producers whose collective output of 
the products constitutes a major proportion of the total domestic production of those products ". 
 
1 Appellate  Body Report, US – Softwood Lumber IV , para  140. WT/DS577/R/Add.1  
 
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  Turkey understands that Article  4.1 does not provide a specific methodology to define the do mestic 
industry2 and the investigating authority may choose to define it on either basis. However, Turkey 
understands that the investigating authority should identify the domestic producers as precisely as 
possible which, in turn, depends on the structure  of the market of the like product and the number 
of producers in this market.  
7. In case that the domestic industry does not refer to "the domestic producers as a whole ", the 
investigating authority has a duty to define it as a "representative of the tota l domestic production "3 
so that the major proportion of the total production of the like product is reflected in definition of 
the domestic industry. Similarly, The Appellate  Body in EC – Fasteners  (China)  stated that  
"… a domestic industry defined on the basis of a proportion that is low, or defined 
through a process that involves active exclusion of certain domestic producers, is likely 
to be more susceptible to a finding of inconsistency under Article  4.1 of the  
Anti-Dumping  Agreement. "4 
8. On the other hand, the Panel in Mexico  – Corn Syrup  (US) stressed that "the domestic industry 
with respect to which injury is considered and determined must be the domestic industry defined in 
accordance with Article  4.1".5 Turkey u nderstands that an adequate determination of the "domestic 
industry " is essential for an objective injury determination based on positive evidence.  
9. Footnote 9 to Article  3 of the Anti -Dumping  Agreement indicates that:  
Under this Agreement the term "inju ry" shall, unless otherwise specified, be taken to 
mean material injury to a domestic industry , threat of material injury to a domestic 
industry  or material retardation of the establishment of such an industry  and shall be 
interpreted in accordance with th e provisions of this Article. ( emphasis added ) 
10. The Panel in Russia  – Commercial Vehicles (EU)  stated that "… producers of domestic like 
products may not be left out of the definition of domestic industry on the basis of considerations or 
selection methods that, by their nature, are likely to distort the subsequent injury determination ".6 
In a similar vein, the Appellate Body in US – Hot Rolled Steel (Japan)  emphasized that "an 
examination of only certain parts of a domestic industry  does not ensure a proper evaluation of the 
state of the domestic industry as a whole, and does not, therefore, satisfy the requirements of 
objectivity in Article  3.1 of the Anti -Dumping  Agreement ".7 
11. The investigating authority has to define the domestic in dustry in a manner that does not give 
rise to a material risk of distortion and ensure the accuracy of an injury determination.8 When the 
investigating authority does not provide a satisfactory and reasonable explanation for definition of 
the domestic ind ustry which is determined on the basis of a region, sub -sector, customer group etc., 
the domestic industry as such appears to be "selected among domestic producers based on their 
data to ensure a particular outcome ".9 Turkey understands that the risk of distortion in the injury 
determination would be less likely to occur if the universe of domestic producers is defined as 
adequately as possible and encompasses those producers whose data enable an objective analysis 
of the injury based on positive evidence.10 
IV. CLAIMS UNDER ARTICLES  3.1, 3.2, 3.4 AND 3.5 OF THE ANTI -DUMPING  AGREEMENT  
12. Turkey regards that objective evaluation of volume and price effects and impact analysis based 
on positive evidence are the milestone s of the injury analysis within the legal framework of the 
Articles  3.1, 3.2 and 3.4 of the Anti -Dumping  Agreement. As clearly stipulated in these articles, 
 
2 Panel Report, China  – Autos (US) , para. 7.212.  
3 Appellate Body Report, Russia  – Commercial Vehicles (EU) , para.  5.40. 
4 Appellate Body Report, EC – Fasteners (China) , para.  419. 
5 Panel Report, Mexico  – Corn Syrup (US) , para.  7.147.  
6 Panel Report, Russia – Commercial Vehicles (EU) , para.  7.11. 
7 Appellate Body Report, US – Hot Rolled Steel (Japan) , para.  206. 
8 Appellate Body Report, EC – Fasteners (China) , para.  414. 
9 Panel Report, Russia  – Commercial Vehicles (EU) , para.  7.15. 
10 Appellate  Body Report, EC – Fasteners (China) , para.  414; Panel Report, China  – Broiler 
Products  (US), para.  7.413 . WT/DS577/R/Add.1  
 
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  investigating authorities are obliged to examine objectively and based on positive evidence whether  
"… there has been a significant increase in dumped imports, either in absolute terms or relative to 
production or consumption in the importing Member "11 And 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 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 "12 and "… the consequent impact of these imports on domestic producers of such products "13 
13. Turkey also understands that there is a high degree of interrelationship among Articles  3.1, 
3.2, 3.4 and Article  4.1 as objective evaluation of volume and price effect s and impact analysis based 
on positive evidence linked to adequate and objective determination of the domestic industry. As 
underlined in paragraph  9 of this submission, the Panel in Mexico  – Corn Syrup (US)  reiterates such 
understanding by referring to footnote 9 to Article  3 in construing the Article  4.1;14 "These 
two provisions inescapably require the conclusion that the domestic industry with respect to which 
injury is considered and determined must be th e domestic industry defined in accordance with 
Article  4.1". 
14. In this regard, selective construction of the domestic industry based on certain subjective 
criteria and carrying out evaluation of volume and price effects and impact analysis relying upon 
only that limited definition of the domestic industry has a risk of materially distorting the injury 
analysis. The Appellate  Body in Russia  – Commercial Vehicles (EU) articulates a similar argument:15 
"… the non -inclusion of this category of producers could  make the domestic industry 
definition no longer representative of the total domestic production, thereby 
undermining the accuracy of the injury analysis. " 
15. As implied by the Panel in Morocco  – Hot-Rolled Steel  (Turkey)  by pointing out to a possible 
risk of material distortion where an investigating authority, relying arbitrarily upon only a certain 
limited definition of the domestic industry, may well increase the likelihood of existence of volume 
and price effects and their impact on domestic producers , thereby that of a non -objective conclusion 
that domestic industry is injured.16 
16. However, such an approach should not be understood that Turkey overlooks the possibility of 
evaluation of volume and price effects and impact analysis based on a special definition of the 
domestic industry, i.e. segmentation into sub -parts. As several WTO disputes accredit the possibility 
of special definition of the domestic industry based on segmentation17, Turkey acknowledges the 
validity of such analyses with regards t o a segmented domestic industry, considering one of the 
two possible alternative steps explained by The Appellate Body in US – Hot-Rolled Steel  (Japan)  is 
taken:18 
"… where investigating authorities undertake an examination of one part of a domestic 
indust ry, they should, in principle, examine, in like manner, all of the other parts that 
make up the industry, as well as examine the industry as a whole. Or, in the alternative, 
the investigating authorities should provide a satisfactory explanation as to why it is not 
necessary to examine directly or specifically the other parts of the domestic industry. " 
17. Turkey also would like to emphasize that since the Article  3.1, as the chapeau -like provision 
of the Article  3, stipulates inclusive obligations for eval uation of volume and price effects and impact 
analysis, a flawed or a biased determination on any kind of these three analyses may also violate 
the overarching requirements of "objective examination " based on "positive evidence ". Illustrating 
 
11 Anti-Dumping  Agreement, Article  3.2. 
12 Ibid. 
13 Ibid., Article  3.1. 
14 Panel Report, Mexico  – Corn Syrup (US) , para.  7.147.  
15 Appellate Body Report, Russia – Commercial Vehicles (EU) , para. 5.21. 
16 Panel Report, Morocco  – Hot-Rolled Steel (Turkey) , para.  7.272 . 
17 Appellate Body Report, China  – HP-SSST (Japan) / China  – HP-SSST (EU) , para.  5.263; Panel Report, 
China  – X-Ray Equipment , para.  7.88; Panel Report, EC – Fasteners (China) , para.  7.410 . 
18 Appellate Body Report, US – Hot-Rolled Steel (Japan) , para.  204. WT/DS577/R/Add.1  
 
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  this argument, the Panel in Mexico  – Steel Pipes and Tubes (Guatemala) makes a similar 
conclusion:19 
"In brief, examining only a part of the industry as defined by the investigating authority 
is not an objective examination of positive evide nce since it is not representative of the 
overall state of the domestic industry. " (emphasis added ) 
18. Article  3.5 provides that an investigating authority must establish a causal relationship 
between dumped imports and the injury to the domestic industry . In this respect, it imposes 
two conditions to establish a causal relationship between the two. First, the investigating authority 
is obliged to demonstrate the link between the "dumped imports " and "injury " by evaluating the 
volume and price effects of d umped imports as well as the impact of dumped imports on the domestic 
industry. Second, the investigating authority is under the responsibility to evaluate any known 
factors other than the dumped imports that contribute to the injury and shall refrain from  attributing 
the impact of other factors to the dumped imports.  
19. The Panel in EC – Salmon (Norway)  stated that "where an investigating authority makes injury 
and causation determination on the basis of information related to an improperly defined domest ic 
industry, it acts inconsistently with various provisions of Article  3".20 Turkey agrees that an injury 
and causation determination should be based on positive evidence belonging to an adequately 
defined domestic industry. Yet, as long as the investigati ng authority refrains from materially 
distorting the injury and causation determination, Turkey does not underestimate the specific 
circumstances of a case which necessitate a special definition of the domestic industry.  
V. CONCLUSION  
20. With these comments, Turkey expects to contribute to the legal debate in this case, and would 
like to express again its appreciation for this opportunity to share its points of views.  
 
 
__________  
 
19 Panel  Report, Mexico  – Steel Pipes and Tubes  (Guatemala ), para.  7.328 . 
20 Panel  Report, EC – Salmon (Norway) , para.  7.124 .